Carolyn J. Patrick v. Eric K. ShinsekiCarolyn J. Patrick v. Eric K. Shinseki
Catherine A. Chase, with whom Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were on the pleading, all of Washington, D.C., for the appellee.
Before GREENE, Chief Judge, and KASOLD and HAGEL, Judges.
PER CURIAM:
Before the Court is Carolyn J. Patrick‘s May 16, 2008, application for an award of $36,487.75 in attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA),
I. BACKGROUND
In a May 6, 1999, decision, the Board of Veterans’ Appeals (Board) determined that a March 1986 Board decision denying Mrs. Patrick‘s claim for service connection for the cause of her veteran-husband‘s death did not contain clear and unmistakable error (CUE). In a single-judge memorandum decision dated August 13, 2002, the Court affirmed the May 1999 CUE Board decision. Mrs. Patrick appealed, and on July 2, 2004, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated the decision and remanded the matter to this Court for further proceedings consistent with its opinion in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004).
In a single-judge memorandum decision dated February 1, 2006, the Court again affirmed the May 1999 Board decision. The Court concluded that in order to rebut the presumption of soundness under
Upon remand from the Federal Circuit, the Court, in a January 31, 2008, single-judge memorandum decision, vacated the May 1999 Board decision. Patrick v. Peake, — Vet.App. —, 2008 WL 331094 (2008). The Court noted that the Board had correctly found that there was clear and unmistakable evidence that Mr. Patrick‘s rheumatic heart disease preexisted service. The Court, however, determined that in accordance with the Federal Circuit‘s Wagner holding that its interpretation of section 1111 applied even in the CUE context, in order to determine whether the presumption of soundness had been rebutted, the Board in May 1999 was then required to consider whether the Board in 1986 had been presented with clear and unmistakable evidence that either Mr. Patrick‘s condition did not increase in severity during service or any increase was “due to the natural progress of the disease.” The Court therefore remanded the matter to the Board for readjudication, including an adequate explanation of whether the evidence before the Board in 1986 constituted clear and unmistakable evidence that Mr. Patrick‘s heart condition did not increase in severity during service.
II. APPLICABLE LAW
This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to
Once an allegation of lack of substantial justification is made, the burden is on the Secretary to prove that VA was substantially justified in its administrative and litigation positions. See Cullens, supra; Locher v. Brown, 9 Vet.App. 535, 537 (1996). The Secretary‘s position is substantially justified “‘if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.‘” Stillwell v. Brown, 6 Vet.App. 291, 302 (1994) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). That determination is based not on any single factor, but on the totality of the circumstances, which includes consideration of, “among other things, ‘merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties’ before the Court. White v. Nicholson, 412 F.3d 1314, 1317 (Fed.Cir.2005) (quoting Johnson v. Principi, 17 Vet.App. 436, 442 (2004)); see Stillwell, supra.
III. ANALYSIS
As noted above, the issue before the Court is whether the Secretary has met his burden of demonstrating that the Government‘s position was substantially justified at both the administrative and litigation stages. With respect to the administrative stage, the Secretary argues that his position was substantially justified because, although the Federal Circuit later determined that the Board had applied the wrong standard for rebutting the presumption of soundness, the 1999 Board decision was based on then-existing law. He further asserts that prior to the Federal Circuit‘s decision in Wagner, “there were no prior judicial pronouncements which could have directed the Board to act in contravention of VA‘s interpretation of section 1111,” set forth in
Mrs. Patrick responds that the Secretary‘s position at the administrative stage was not substantially justified because the Court in 2008 determined that the Board erred by failing to provide an adequate statement of reasons or bases. She further asserts that the Secretary has offered no justification for this error and has therefore failed to carry his burden of demonstrating substantial justification. With respect to the litigation stage, Mrs. Patrick baldly asserts that the Secretary‘s position was not substantially justified.
A. Substantial Justification at Administrative Stage
Although Mrs. Patrick is correct that the Court ultimately remanded the matter below upon finding that the Board in 1999 had failed to provide an adequate statement of reasons or bases, which could support a finding that the Secretary‘s position was not substantially justified at the administrative stage, see Thompson v. Principi, 16 Vet.App. 467, 470 (2002); ZP v. Brown, 8 Vet.App. 303, 304 (1995), a failure to provide an adequate statement of reasons or bases does not in all cases negate a finding that the Secretary was substantially justified. Indeed, when the statutory framework presents a confusing tapestry, the Secretary can be substantially justified in taking a position regardless of whether that position later turns out to be wrong. Locher, 9 Vet.App. at 537-40;
In the underlying case, the catalyst for the remand was the Federal Circuit‘s holding that its interpretation of section 1111 set forth in Wagner applied even in a CUE context. Patrick, 242 Fed.Appx. at 698. Although the error found by the Court was termed a reasons-or-bases error, that error became apparent only after the Federal Circuit directed remand to the Board, if necessary, to determine whether the Government had rebutted the presumption of soundness under section 1111 by providing clear and unmistakable evidence of no in-service aggravation of the claimed disability. Id. Thus, because the purpose of the Court‘s remand was for the Board to comply with the Federal Circuit‘s then-recent interpretation of section 1111, in light of the law as it was understood at the time of the 1999 Board decision (which required only clear and unmistakable evidence of preexistence to rebut the presumption of soundness), the Board‘s failure to provide Mrs. Patrick with reasons or bases regarding whether the Secretary had rebutted the aggravation prong of the presumption of soundness under section 1111 was reasonable. See Stillwell, 6 Vet.App. at 302.
The Court recognizes the Federal Circuit‘s pronouncement in the underlying appeal that Wagner “did not change the law but explained what § 1111 has always meant.” Patrick, 242 Fed.Appx. at 698. Notwithstanding, the Board in 1999 followed then-existing precedent established by VA and upheld by this Court concerning rebutting the presumption under section 1111. Compare Wagner, 370 F.3d at 1096 (to rebut presumption of soundness under section 1111, clear and unmistakable evidence both that disability preexisted service and that it was not aggravated during service is needed), with Doran v. Brown, 6 Vet.App. 283, 286 (1994) (presumption of soundness “can be overcome only by clear and unmistakable evidence that a disability existed prior to service“), and Bagby v. Derwinski, 1 Vet.App. 225 (1991) (presumption of soundness rebutted when there was clear and unmistakable evidence that appellant entered service with preexisting ulcer). The Secretary is not free to ignore binding precedent of this Court. See Suozzi v. Brown, 10 Vet.App. 307, 311 (1997) (“VA is bound to follow the controlling precedential decisions of this Court.“); Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (“[A] decision of this Court, unless or until overturned . . . [is] to be followed by VA agencies of original jurisdiction, the [Board], and the Secretary in adjudicating and resolving claims.“). Further, “[t]he Board shall be bound in its decision by the regulations of the Department.”
Accordingly, considering the then-controlling precedent and the language of § 3.304, the Board‘s 1999 analysis of
At oral argument, Mrs. Patrick argued that the Board in 1999 did not apply
B. Substantial Justification at Litigation Stage
Although Mrs. Patrick stated at oral argument that her challenge was only to the Secretary‘s position at the administrative stage, the Court notes that in her EAJA application she asserts that “the VA‘s position was not substantially justified at either the administrative or the litigation levels” (EAJA Application at 8), and in her EAJA application reply she argues that the “[G]overnment must justify both its position in the litigation for which the award is sought and also its position in the administrative decision which made that litigation necessary” (Reply at 5). The Court will therefore determine whether the Secretary‘s litigation position was substantially justified, albeit Mrs. Patrick presents only a bald assertion of error with respect to that stage.
The Secretary asserts that his position was substantially justified during the litigation stage because he relied on “essentially the same regulatory and statutory interpretation[ ] and then existing case law that had been relied upon by the Board.” Resp. at 9. He also notes that the Court, in August 2002 and February 2006, affirmed the Board decision, thus approving of the position taken by the Secretary. He further argues that he was substantially justified at the litigation stage because the issue involved in the underlying case was whether a 1986 Board decision contained CUE rather than whether service connection for the cause of the veterans death should have been granted in the first instance; he asserts, therefore, that it was not apparent that Wagner would control the outcome of this case because the Federal Circuit had, during the pendency of the underlying appeal, issued its decision in Jordan, supra, which this Court interpreted to hold “that the presumption-of-soundness interpretation articulated in Wagner does not have retroactive application in a CUE case.” Patrick v. Nicholson, 20 Vet.App. 452, 2006 WL 318822, at *9 (2006).
As stated above, the Secretary‘s original position was based on established precedent and practice. That fact, along with this Court‘s interpretation of the statute
IV. CONCLUSION
Upon consideration of the pleadings filed for this appeal, and for the reasons stated herein, the application is DENIED.