Petition for Writ of Certiorari — Forshey v. Principi

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(1) Supreme Court, U.S.

FILED

No. %118 26 wn / 2g

In The

Supreme Court of the Anited States

REZI P. FORSHEY,

Petitioner,

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

KENNETH M. CARPENTER

Counsel of Record

CARPENTER, CHARTERED

1525 S. Topeka Blvd.

P. O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 < ZY

QUESTION PRESENTED

Whether the en banc decision of the Federal Circuit

correctly interprets 38 U.S.C. § 7292?

TABLE OF CONTENTS

Page

QUESTION PRT iO eisscicicnntnccsvdrcstncccecsesceserens i

SAL CP COI wsishicsccidcdadeansaiabhaniaaseuinasnts il

SABLE OF RAST eee wiisiaccriecbiosiveessieneicdesssnnses ili

PETITION FOR WRIT OF CERTIORARI ................ 1

OP ENELIOUD BRAIN si:iccéasnihudiptasepeamamtsestaananiaiandidenies 1

STATEMENT OF JURISDICTION ...............00c0cceeeeee 1

PROV ESIONG TIVE A tiitcistsinsacavesccstanetaseusstenctenteses 1

STATEMENT OF THE CASE ............cccccccsssscsssssssseees 4

REASONS FOR GRANTING THE WRIT.................. 5

CONCILLABIIIIN ..:..:i:asansssinscapandeenaiestaieiaaaenaeaennaiaics 11

ABP TRINGIER, «.xxsinesssiscianisastaiobanduaca leanne App. 1

iii

TABLE OF AUTHORITIES

Page

CASES

Hormel v. Helvering, 312 U.S. 552 (1941)...........+. 5, 6, 8, 11

Rogozinski v. Derwinski, 1 Vet.App. 19 (IGBG) nccccccescccccreces 8

Sims v. Apfel, 530 U.S. 103 (2000).........s--sseseereeerrereees 5, 11

Walters v. National Ass’n of Radiation Survivors,

A473 U.S. 305 (1985)..........::ccessessserseereneeeneeeeeeseseseseseseeeens 8

STATUTES

QB U.S.C. § 1254(1) .......cesecccessersceeseseeeesseneesssrsessteenesenenneens 1

38 U.S.C. §§ 5904 amd 5905 ............cseeeeeeeseeeeereeeeeeneeeneeeees 7

3B U.S.C. § 7104.........cseccccescsccsssscessreeensnsescersesssesenaeseneeenes 9

38 U.S.C. § 7252(a) ........cseccccsscsreeeesereeensreeseseeneseneeeasnsenaeens 8

38 U.S.C. § 7252(b) .........sececeseesseceeesseeeeseeeesnereeseseneneensenaenns 8

38 U.S.C. § 7263(a) .........ccccceeeeseceeeeseeeseeeneessseeseseeeneeseneenenns 9

38 U.S.C. § T2G63B(b) ........cccsesssccsceeeesererceesesnsressseeeenneessnnnees 10

3B U.S.C. § 7264........:cccccccscsssscsscseesesseecesesssssessseenensnesessnnees 10

3B U.S.C. § 7264(a) .......ccccccsecesserceeeeserereeeessnereesseeseenansesnnees 10

38 U.S.C. § 7266(a)(1) .......ceceeeseceessseeeesseeessereeseneeeeeneeneeees 9

3B U.S.C. § 7292.......cccccsesscsccssssssccssssesesessccsssssrssesssennsesenes 1,4

38 U.S.C. § 7292(a) ......cccccceesssesseeceeseesereeeesseereeeeteeeneaeenens 1,4

38 U.S.C. § T292(b)1) ........ceeeeesseeeeeeesereeeeeescereeeeseeeeenneesnnnes 2

3B U.S.C. § 7292(b)(2) .......ccsseserecererseeseenesseereseseneenesnneneens 3

3B U.S.C. § 7292(c)......ccccccccsseseccrceeeeseserecsessnsrressseeeeeeneseanees 3

3B U.S.C. § T292(d)(1) .......cceeceesseereeeeeeeseneeennrneeesteeseteneeneees 3

TABLE OF AUTHORITIES — Continued

Page

Se ats tT ciccsciccliidrncntaneaedeniaiaeiminenianbaaiinannniadand 4

Pes Me NICD sinc icicerctsaninnaisasnimnnssiniindlaietseinlahabiiidannihaieken 4

ee ee TE sinsiisicn shschsisduhiontinaeineiichbiciemetabialeaniiindatisiiiliaasan 4

OTHER AUTHORITIES

United States Court of Appeals for Veterans Claims

Rules of Practice and Procedure, Rule 28(a)................. 10

United States Court of Appeals for Veterans Claims

Rules of Practice and Procedure, Rule 28(b)................. 11

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari

to review this case decided below by the United States

Court of Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals for the Federal

Circuit is published as 284 F.3d 1335 (Fed. Cir. 2002) and

reprinted in the Appendix (“App.”) at App. 1.

STATEMENT OF JURISDICTION

The Court has jurisdiction to review this petition with

respect to this case pursuant to 28 U.S.C. § 1254(1). The

judgment of the Federal Circuit was entered on April 1,

2002.

PROVISIONS INVOLVED

38 U.S.C. § 7292. Review by United States Court of

Appeals for the Federal Circuit.

(a) After a decision of the United States Court of

Appeals for Veterans Claims is entered in a

case, any party to the case may obtain review

of the decision with respect to the validity of

any statute or regulation (other than a refusal

to review the schedule of ratings for disabili-

ties adopted under section 1155 of this title) or

any interpretation thereof (other than a de-

termination as to a factual matter) that was

(b)(1)

relied upon by the Court in making the deci-

sion. Such review shall be obtained by filing a

notice of appeal with the Court of Appeals for

Veterans Claims within the time and in the

manner prescribed for appeal to United States

courts of appeal from the United States dis-

trict courts.

When a judge or a panel of the United States

Court of Appeals for Veterans Claims, in mak-

ing an order not otherwise appealable under

this section, determines that a controlling

question of law is involved with respect to

which there is a substantial ground for differ-

ence of opinion and that there is in fact a dis-

agreement between the appellant and the

Secretary with respect to that question of law

and that the ultimate determination of the

case may be materially advanced by the im-

mediate consideration of that question, the

judge or panel shall notify the chief judge for

that determination. Upon receiving such noti-

fication, the chief judge shall certify that such

a question is presented, and any party to the

case may then petition the Court of Appeals for

the Federal Circuit to decide the question.

That court may permit an interlocutory appeal

to be taken on the question if a petition is filed

with it within 10 days after the certification by

the chief judge for the Court of Appeals for

Veterans Claims. Neither the application for,

nor the granting of, an appeal under this para-

graph shall stay proceedings in the Court of

Appeals for Veterans Claims, unless a stay is

ordered by a judge of the Court of Appeals for

Veterans Claims or by the Court of Appeals for

the Federal Circuit.

}

(2)

(c)

(d)(1)

For purposes of subsections (d) and (e) of this

section, an order described in this paragraph

shall be treated as a decision of the Court of

Appeals for Veterans Claims.

The United States Court of Appeals for the

Federal Circuit shall have exclusive jurisdic-

tion to review and decide any challenge to the

validity of any statute or regulation or any in-

terpretation thereof brought under this sec-

tion, and to interpret constitutional and

statutory provisions, to the extent presented

and necessary for a decision. The judgment of

such court shall be subject to review by the

Supreme Court upon certiorari, in the manner

provided in sections 1254 of title 28.

The Court of Appeals for the Federal Circuit

shall decide all relevant questions of law, in-

cluding interpreting constitutional and statu-

tory provisions. The court shall hold unlawful

and set aside any regulation or any interpreta-

tion thereof (other than a determination as to

a factual matter) that was relied upon in the

decision of the Court of Appeals for Veterans

Claims that the Court of Appeals for the Fed-

eral Circuit finds to be —

(A) arbitrary, capricious, and abuse of

discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

authority or limitations, or in vio-

lation of a statutory right; or

(D) without observance of procedure

required by law.

(2) Except to the extent that an appeal under this

chapter presents a constitutional issue, the

Court of Appeals may not review (A) a chal-

lenge to a factual determination, or (B) a chal-

lenge to a law or regulation as applied to the

facts of a particular case.

(e)(1) Upon such review, the Court of Appeals for the

Federal Circuit shall have the power to affirm

or, if the decision of the Court of Appeals for

Veterans Claims is not in accordance with law,

to modify or reverse the decision of the Court

of Appeals for Veterans Claims or to remand

the matter, as appropriate.

(2) Rules for review of decisions of the Court of

Appeals for Veterans Claims shall be pre-

- scribed by the Supreme Court under section

2072 of title 28.

STATEMENT OF THE CASE

The United States Court of Appeals for the Federal

Circuit convened en banc to consider the scope of the

Court’s jurisdiction in cases coming to it from the Court of

Appeals for Veterans Claims under 38 U.S.C. § 7292, and

the prudential rules that should govern the exercise of

that jurisdiction where it exists.

The Court of Appeals for the Federal Circuit con-

cluded that under § 7292(a) the Court had jurisdiction

over: (1) issues concerning the validity of statutes or

regulations on which the decision of the Court of Appeals

for Veterans Claims depended; (2) issues of interpretation

if the Court of Appeals for Veterans Claims elaborated the

meaning of a statute or regulation and the decision de-

pendent on that interpretation; (3) issues of validity or

interpretation raised before the Court of Appeals for

Veterans Claims but not explicitly decided, if the decision

would have been altered by adopting the position that was

urged; and (4) other “relevant” questions of law.

The Court held that even when jurisdiction exists,

prudential considerations should severely limit the exer-

cise of the Court’s authority to consider issues not raised

or decided below.

REASONS FOR GRANTING THE WRIT

The majority decision of the en banc Court of the

Federal Circuit violates this Court’s holding in Sims v.

Apfel, 530 U.S. 103 (2000), by severely limiting the exer-

cise of its jurisdiction. The Federal Circuit erroneously

interpreted 38 U.S.C. § 7292 by utilizing the traditional

rule of issue preclusion set out in Hormel v. Helvering, 312

U.S. 552 (1941). The rule set out in Hormel is appropriate

and applicable to appeals from adversarial trials or adver-

sarial administrative proceedings. The rule in Hormel is

not appropriate for application to appellate review of the

judicial review of facts developed in a non-adversarial, pro-

claimant, and uniquely paternalistic system.

The Federal Circuit erred in failing to follow this

Court’s analysis in Sims v. Apfel, supra. In Sims this

Court held that a judicially imposed requirement of issue

exhaustion was not appropriate in the content of a Social

Security appeal to a Federal District Court because the

parties had a non-adversarial relationship. Clearly, Con-

gress intended veterans to enjoy a non-adversarial rela-

tionship with the Department of Veterans Affairs when

attempting to obtain benefits. The Petitioner asserts that

there is nothing in Title 38 to suggest that Congress

wished to abandon the non-adversarial nature of proceed-

ings involving claims of veterans or other qualified claim-

ants for benefits from the Department of Veterans Affairs,

when Congress enacted the Veterans Judicial Review Act.

The majority relies upon the fact that the Court of

Appeals for Veterans Claims is an appellate court. The

Petitioner concedes that proceedings before appellate

courts are normally adversarial. However, administrative

proceedings are normally adversarial unless, as here,

there is a clearly expressed intent by Congress mandating

a non-adversarial system of adjudication. The relevant

question, therefore, is whether proceedings before the

Court of Appeals for Veterans Claims should be assumed

or are required to be adversarial.

The Petitioner has been unable to identify any other

national appellate court which undertakes judicial review

directly from a federal administrative agency. Under the

statutory scheme created for judicial review of administra-

tive decisions of the Social Security Administration, the

Federal District Courts are charged with that responsibil-

ity. District Court decisions are thereafter appealed to the

appropriate Circuit Court of Appeals. The United States

Court of Appeals for Veterans Claims is unique. Congress

created a National Court having exclusive jurisdiction to

undertake judicial review of the administrative decision-

making of the Department of Veterans Affairs.

This Court’s decision in Hormel predates the enact-

ment by Congress of the Administrative Procedures Act

(APA) which codified the procedures related to adversarial

administrative hearings, as well as addressing the right to

judicial review from such adversarial administrative

proceedings. Veterans, prior to the creation of the United

States Court of Appeals for Veterans Claims, were not

entitled to judicial review. The APA, by its very nature,

involves adversarial administrative proceedings. The

Petitioner would assert that the APA creates a statutory

scheme for judicial review of adversarial proceedings, and

that such judicial review is likewise adversarial. Con-

versely, the Petitioner would argue that if Congress

created a statutory scheme for non-adversarial adminis-

trative proceedings, that it would follow that judicial

review should likewise be assumed to be non-adversarial

rather than assumed to be adversarial.

Veterans are led to believe that the non-adversarial,

ex parte paternalistic system provides a uniquely pro-

claimant process for claims adjudication. Yet, claimants in

adversarial proceedings conducted under the APA are

afforded procedural benefits which are not available to

veterans in their non-adversarial system. Among those

rights provided under the APA are the right to timely and

expeditious decisionmaking, discovery rights, and the

right to counsel.’ As a result, veterans do not have the

benefit of compensated counsel to ensure a fully developed

record prior to seeking judicial review. When veterans are

‘ Under 38 U.S.C. §§ 5904 and 5905 a veteran cannot enter into a

fee agreement with counsel for representation before the Agency prior

to a final decision of the Board of Veterans’ Appeals. The solicitation of,

the receipt of, or the acceptance of a fee from a veteran or claimant by

an attorney for representation of a veteran/claimant is a criminal

violation.

by statute permitted, to enter into fee agreements for legal

representation, the record is fixed. See 38 U.S.C. § 7252(b).

An appellant before the Court of Appeals for Veterans

Claims cannot introduce any additional evidence an

attorney might deem necessary in order to present a

veteran’s appeal to the appellate court. See 38 U.S.C.

§ 7252(b); see also Rogozinski v. Derwinski, 1 Vet.App. 19

(1990).

The Petitioner asserts that it is inconsistent with this

Court’s holding in Sims for the Federal Circuit to have

interpreted 38 U.S.C. § 7292 to severely limit its exercise

of jurisdiction by the rule set out in Hormel. Congress

made the public policy decision in 1988 that veterans

would benefit from judicial review. Compare the public

policy analysis made by this Court in Walters v. National

Ass’n of Radiation Survivors, 473 U.S. 305 (1985).

Congress did not expressly articulate in the statutory

scheme that judicial review would be adversarial. The

Federal Circuit in its decision assumed that all judicial

review is necessarily adversarial. The strict application of

the issue preclusion requirement under the guise of

prudential consideration ‘is inconsistent with this Court’s

holding in Sims and should be overruled.

The decision of the majority below rests upon the

erroneous assumption that judicial review of decisions

involving veterans’ benefits must be adversarial. There is

nothing in the plain language of any statute within Title

38 which supports such an assumption.

38 U.S.C. § 7252(a) states, “The Court of Appeals for

Veterans Claims shall have exclusive jurisdiction to review

decisions of the Board of Veterans’ Appeals.’ The Secretary

shall not seek review of any such decision. The Court shall

have the power to affirm, modify or reverse a decision of

the Board or to remand the matter as appropriate.” The

plain language of the jurisdictional statute of the Veterans’

Court expressly prohibits the Agency from seeking review

of any decision made by the Board of Veterans’ Appeals.

Therefore, the judicial review provided by Congress was

expressly limited to appeals taken by veterans or other

claimants seeking review of the administrative decision-

making of the Department of Veterans Affairs.

38 U.S.C. § 7266(a)(1) provides, “In order to obtain

review by the Court of Appeals for Veterans Claims of a

final decision of the Board of Veterans’ Appeals, a person

adversely affected by such decision shall file a notice of

appeal with the court within 120 days after the date on

which the notice of the decision is mailed pursuant to

section 7104(e) of this title.” This statutory provision

reinforces the exclusion of the Secretary from the indi-

viduals who may obtain judicial review by the Court of

Appeals for Veterans Claims of final decisions of the Board

of Veterans’ Appeals.

38 U.S.C. § 7263(a) indicates that, “The Secretary

shall be represented before the Court of Appeals for

Veterans Claims by the General Counsel of the Depart-

ment.” The statute does not indicate that the General

Counsel is required to defend the decisions made by the

2 The Board of Veterans’ Appeals is the statutorily created tribunal

which conducts de novo review of decisions of the Secretary of the

Department of Veterans Affairs. See 38 U.S.C. § 7104.

Board of Veterans’ Appeals. Rather, 38 U.S.C. § 7263(b)

specifies that, “Representation of appellants shall be in

accordance with the rules of practice prescribed by the

Court under section 7264 of this title.” 38 U.S.C. § 7264(a)

states that, “The proceedings of the Court of Appeals for

Veterans Claims shall be conducted in accordance with

such rules of practice and procedure as the Court pre-

scribes.”

The Rules of Practice and Procedure prescribed by the

United States Court of Appeals for Veterans Claims

describe the appellate briefs to be presented to the Court

by the parties in Rule 28. Rule 28(a) requires that, “The

appellant’s brief must contain the appropriate headings

and, in this order:

(1) a table of contents, with page references;

(2) a table of cases (alphabetically listed), statutes,

and other authorities cited, with references to the

page of the brief where they are cited, unless the

case is expedited under Rule 47;

(3) astatement of issues;

(4) a statement of the case, showing briefly the

nature of the case, the course of proceedings, the

result below and the fats relevant to the issues,

with appropriate references to the record;

(5) an argument, beginning with a summary, and

containing the appellant’s contentions with re-

spect to the issues and the reasons for them, with

citations to authorities and the parts of the record

relied upon; and

(6) a short conclusion stating the precise relief

sought.

Rule 28(b) prescribes the parameters of the Secretary's

brief:

(1) The Secretary's brief must conform to the re-

quirements of subsection (a) of this rule, but a

statement of issues or of the case need not be

made unless the Secretary is dissatisfied with the

appellant’s statement.

(2) If the Secretary wishes to confess error as to any

issue or issues raised by the appellant, but not as

to all the issues raised, and the relief the Secre-

tary deems appropriate as to the confession of er-

ror is different from the relief sought by the

appellant, the Secretary shall include a statement

of concession in the brief and identify the relief

thereunder that is deemed appropriate.

There is nothing in the statutory scheme for judicial

review or the Rules of the Veterans Court which require

an adversarial proceeding in order to undertake a judicial

review of a decision of the Department of Veterans Affairs.

CONCLUSION

The majority decision in this matter cannot be

reconciled with this Court’s decision in_Sims. The Federal

Circuit decision which relies upon Hormel is predicated

upon the faulty assumption that judicial review must be

adversarial. There is no reason that judicial review of a

non-adversarial proceeding should be made to be adversar-

ial. Allowing the Federal Circuit’s decision to stand based

upon Hormel undermines this Court’s decision in Sims.

Moreover, as the dissent observed, “Veterans sought for

over a hundred years to secure judicial review of the

Secretarys decisions. Now that they have it, they are

finding that judicialization is leading to prolonged delays

and a growing complexity of rules that rival the tax code

in opaqueness.” There is no need for judicial review to be

adversarial. Judicial review, especially in the context of

veterans benefits, should be about determining the correct

interpretation of the law. Congress charged the Federal

Circuit with the responsibility of interpreting VA statutes

and regulations. This decision of the Federal Circuit

severely limits the exercise of that statutory mandate.

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

KENNETH M. CARPENTER

CARPENTER, CHARTERED

1525 S. Topeka Boulevard

P. O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

Attorney for Petitioner,

Rezi P. Forshey

ER ee eee

App. 1

284 F.3d 1335

United States Court of Appeals,

- Federal Circuit.

Rezi P. FORSHEY, Claimant-Appellant,

Anthony J. PRINCIPI; Secretary of Veterans Affairs,

Respondent-Appellee.

No. 99-7064.

April 1, 2002.

Kenneth M. Carpenter, Carpenter, Chartered, of

Topeka, KS, for claimant-appellant.

Virginia M. Lum, Attorney, Commercial Litigation

Branch, Civil Division, Department of Justice, of Washing-

ton, DC, for respondent-appellee. With her on the brief

were David M. Cohen, Director; and Bryant G. Snee,

Assistant Director. Of counsel on the brief were Donald E.

Zeglin, Deputy Assistant General Counsel, and David J.

Barrans, Staff Attorney, Department of Veterans Affairs, of

Washington, DC.

Michael P. Horan, Paralyzed Veterans of America, of

Washington, DC, for amicus curiae Paralyzed Veterans of

America. With him on the brief was Linda E. Blauhut.

Robert V. Chisholm, Chisholm Chisholm & Kilpatrick

LLP, of Providence, Rhode Island, for amicus curiae

National Organization of Veterans’ Advocates.

Stephen B. Kinnaird, Sidley & Austin, of Washington,

DC, for amicus curiae National Veterans Legal Services

Program. With him on the brief were Ronald S. Flagg, and

Heather M. Walloch. Of counsel on the brief was Barton F.

App. 2

Stichman, National Veterans Legal Services Project, of

Washington, DC.

Before MAYER, Chief Judge, NEWMAN, MICHEL,

LOURIE, CLEVENGER, RADER, SCHALL, BRYSON,

GAJARSA, LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK, in

which Circuit Judges LOURIE, CLEVENGER, RADER,

SCHALL, BRYSON, GAJARSA, LINN, and PROST join.

Circuit Judge MICHEL also joins except for Part I-F.

Dissenting opinion filed by Chief Judge MAYER, in which

Circuit Judge NEWMAN joins.

DYK, Circuit Judge.

On February 5, 2001, we granted rehearing en banc to

consider the scope of our jurisdiction in cases coming to

this court from the Court of Appeals for Veterans Claims

under 38 U.S.C. § 7292, and the prudential rules that

should govern the exercise of that jurisdiction where it

exists.

We conclude that we have jurisdiction »nder section

7292(a) over: (1) issues concerning the validity of statutes

or regulations on which the decision of the Court of Ap-

peals for Veterans Claims depended; (2) issues of interpre-

tation if the Court of Appeals for Veterans Claims

elaborated the meaning of a statute or regulation and the

decision depended on that interpretation; (3) issues of

validity or interpretation raised before the Court of Ap-

peals for Veterans Claims but not explicitly decided, if the

decision would have been altered by adopting the position

that was urged; and (4) other “relevant” questions of law.

Our decisions in Smith v. West, 214 F3d 1331

(Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080,

eR ree tenth an 6 i es ats AL al

App. 3

148 L.Ed.2d 956 (2001), and Belcher v. West, 214 F.3d 1335

(Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080,

148 L.Ed.2d 956 (2001), are modified to the extent, if any,

that they are inconsistent with this new approach on

jurisdictional issues.

We also hold that, even when jurisdiction exists,

prudential considerations should severely limit the exer-

cise of our authority to consider issues not raised or

decided below. In this particular case, we affirm the

judgment of the Court of Appeals for Veterans Claims.

BACKGROUND

The appellant, Rezi P. Forshey, is the widow of

Charles O. Forshey, who served in the United States Navy

from 1975 until his death on August 19, 1990. Mr. Forshey

died while he was on active duty from injuries that he

sustained in a motorcycle accident. Immediately preceding

the accident, Mr. Forshey was riding his motorcycle on a

winding rural road when he went off the road around a

turn and crashed into a boulder. A police report stated that

at the time of the accident, it was daylight, the weather

was clear, and the road was dry. The report also noted that

there was no sign of a mechanical failure of the motorcycle

or its tires. Based on witness accounts, the police esti-

mated that Mr. Forshey was traveling at not more than

thirty miles per hour in a twenty mile per hour zone. A

toxicology report from an autopsy performed the day after

Mr. Forshey died showed that Mr. Forshey had a blood

alcohol level of 0.139%. Apparently, the Navy views a blood

alcohol level of 0.10% or higher as creating a presumption

that the person is under the influence of alcohol. A Navy

accident report dated August 29, 1990, stated that alcohol

App. 4

was a contributing factor to the accident. The report

further concluded that Mr. Forshey suffered a broken neck

and died instantly. However, the Navy report did not

determine the ultimate cause of the accident.

In order for a spouse to receive veterans’ benefits, the

veteran’s death generally must have been service-

connected. See 38 U.S.C. § 1310 (2000). For the death to

be service-connected, the death must be caused by an

injury that occurred in the line of duty. See 38 U.S.C.

§ 101(16) (2000). Section 105(a) of title 38 creates a pre-

sumption of service connection for injuries or diseases that

occur while a veteran is on active duty. Section 105(a)

provides in pertinent part:

An injury or disease incurred during active mili-

tary, naval, or air service will be deemed to have

been incurred in line of duty and not the result of

the veteran’s own misconduct when the person

on whose account benefits are claimed was, at

the time the injury was suffered or disease con-

tracted, in active military, naval, or air service,

whether on active duty or on authorized leave,

unless such injury or disease was a result of the

person’s own wiilful misconduct or abuse of alco-

hol or drugs.

38 U.S.C. § 105(a) (2000) (emphases added).

Thus the presumption of service connection may be

overcome if the government establishes that the veteran’s

' The pertinent non-jurisdictional statutes and regulations are

cited to the current edition and have not changed in any material way

since 1990.

App. 5

own willful misconduct or abuse of alcohol or drugs’

caused the injury leading to his death. The Secretary of

| Veterans Affairs has promulgated a regulation that defines

“willful misconduct” in this context. 38 C.ER. § 3.301(c)(2)

(2001). The regulation provides that if “intoxication results

proximately and immediately in disability or death, the

disability or death will be considered the result of the

person’s willful misconduct.” 38 C.F.R. § 3.301(c)(2)

(2001). Section 5107(b) of title 38 established the “benefit

of the doubt” rule. It provides in pertinent part:

The Secretary shall consider all information and

lay and medical evidence of record in a case be-

fore the Secretary with respect to benefits under

laws administered by the Secretary. When there

is an approximate balance of positive and nega-

tive evidence regarding any issue material to the

determination of a matter, the Secretary shall

give the benefit of the doubt to the claimant.

38 U.S.C. § 5107(b) (West Supp.2001) (emphasis added).

RD RT Oe le OTe Aw

eden nae noes nt bee

eB R LY MAE & tee A ow

The Department of Veterans Affairs Regional Office in

Phoenix, Arizona, denied appellant's claim because it

concluded that Mr. Forsheys death was proximately

om™/

| ? Neither the Board of Veterans’ Appeals nor the Court of Appeals

for Veterans Claims addressed whether there was an abuse of alcohol

by Mr. Forshey, which would itself rebut the presumption of service

connection. Nor does the Secretary of Veterans Affairs raise that issue

on appeal. As a result, we consider only whether Mr. Forshey’s actions

constituted willful misconduct.

* 38 C.F.R. § 3.301(cX2) provides in pertinent part: “The simple

drinking of alcoholic beverage is not of itself willful misconduct... . If,

in the drinking of a beverage to enjoy its intoxicating effects, intoxica-

tion results proximately and immediately in disability or death, the

disability or death will be considered the result of the person’s willful

misconduct.”

App. 6

caused by his intoxication, which itself constituted willful

misconduct.

Ms. Forshey appealed the decision of the Regional

Office to the Board of Veterans’ Appeals (“BVA”). The BVA

applied a preponderance of the evidence standard stating

that “the [Court of Appeals for Veterans Claims] has noted

that, in light of the ‘benefit of the doubt’ rule established

by 38 U.S.C.A. § 5107(b) (West 1991), ‘the preponderance

of the evidence must be against the claim for benefits to be

denied.’ Gilbert v. Derwinski, 1 Vet.App. 49, 53-54 (1990).”

In re Forshey, No. 94-07-681, slip op. at 8 (Bd.Vet.App.

May 31, 1996). Examining all of the evidence, including

“negative evidence,” which “eliminates any other possible

cause for the accident except for alcohol,” the BVA con-

cluded that “because the preponderance of the evidence

demonstrates that alcohol was the proximate cause of the

veteran’s death, and the veteran’s death consequently the

result of his own willful misconduct, the appellant’s claim

for entitlement to service connection for the cause of the

veteran’s death must be denied.” Jd. at 12-13.

On appeal to the Court of Appeals for Veterans

Claims, Ms. Forshey argued that the BVA had improperly

interpreted 38 U.S.C. § 105(a) and 38 C.F.R. § 3.301(c)(2)

to permit reliance on “negative evidence” to rebut the

* Gilbert analyzes the interplay between the preponderance of the

evidence standard and the “benefit of the doubt” rule. Jd. at 53. “{I]f a

fair preponderance of the evidence is against a veteran’s claim, it will

be denied and the ‘benefit of the doubt’ rule has no application; if the

veteran establishes a claim by a fair preponderance of the evidence, the

claim will be granted and, again, the rule has no application; if,

however, the play is close, i.e, ‘there is an approximate balance of

positive and negative evidence,’ the veteran prevails by operation of 38

U.S.C. § 5107(b).” Id. at 56.

App. 7

presumption of service connection. The Court of Appeals

for Veterans Claims rejected this argument, stating:

In reaching its conclusion that intoxication was

the proximate cause of the veteran’s death, the

Board considered what it referred to as “negative

evidence,” which is the evidence tending to dis-

prove the existence of an intervening cause of the

accident other than alcohol consumption. This

included evidence indicating that the road sur-

face was dry, that the weather was clear, that it

was broad daylight, and that there was no ap-

parent malfunction of the motorcycle.... The

appellant argues that the Board impermissibly

used this negative evidence to conciude that in-

toxication was the proximate cause of the acci-

dent.

_.. [TJhe Board acted properly in considering

this evidence.

Forshey v. West, 12 Vet.App. 71, at 74 (Vet.App. 1998).

Based on the “negative evidence,” the Court of Appeals for

Veterans Claims found that the Board’s decision was not

clearly erroneous and affirmed.

At the Court of Appeals for Veterans Claims, appel-

lant did not question the preponderance of the evidence

standard; indeed, she assumed that it applied. Id. at 76.

The Court of Appeals for Veterans Claims did not specifi-

cally address whether a preponderance of the evidence

standard should be applied, but did apply that standard.

Id. In addressing the applicable standard of proof, the

Court of Appeals for Veterans Claims, citing Gilbert, 1

Vet.App. at 53-54, noted that “twice in its decision the

Board recognized that ‘in light of the benefit of the doubt

rule [section 5107(b)], the preponderance of the evidence

App. 8 -

must be against the claim for benefits to be denied.’

Nonetheless, the Board concluded that the preponderance

of the evidence was against the claim.” Id. (citations

omitted). The court concluded that “[a]ccordingly, the

Board did not fail to consider the benefit of the doubt rule

in the appellant’s case.” Id.

On appeal to this court, the appellant continued to

press her argument that the statute and the regulation did

not permit the consideration of “negative evidence,” but

instead required that the government present “affirmative

evidence” to rebut the statutory presumption of service

connection set forth in 38 U.S.C. § 105(a). She argued that

“the [Court of Appeals for Veterans Claims] interpreted

both 38 U.S.C. § 105(a) and 38 C.F.R. § 3.301(c)(2) to allow

the use of negative evidence . . . to establish the proximate

cause of the veteran’s death,” and that “[s]uch an interpre-

tation clearly contravenes established case law regarding

a party’s affirmative duty to present evidence necessary to

revit a presumption.”

However, for the first time appellant also urged that

38 C.F.R. § 3.301(c)(2) was invalid because it failed to

establish a standard of proof and that 38 U.S.C. § 5107(b)

required that the government overcome the presumption

of service connection by clear and convincing evidence

rather than by a preponderance of the evidence. She

claimed that the government misconstrued 38 U.S.C.

§ 5107(b) as providing a standard of proof, when it actually

only provided a rule for weighing evidence.

The panel decision in this case did not address the

“negative evidence” issue. Instead, it concluded that this

court had jurisdiction under 38 U.S.C. § 7292(a) to con-

sider the applicability of a clear and convincing evidence

eal apne Soh ake Cita ih sl We as

App. 9

standard because “the [Court of Appeals for Veterans

Claims] implicitly relied on 38 U.S.C. § 5107(b)” in apply-

ing a preponderance of the evidence standard. Forshey v.

Gober, 226 F.3d 1299, 1302 (Fed.Cir.2000), vacated by 239

F.3d 1224 (Fed.Cir.2001).

On reaching the merits, the panel noted that 38

U.S.C. “§ 5107(b) sets out not a standard of proof, but a

rule for weighing evidence material to a claim.” Id. at

1304. As such, the preponderance of the evidence stan-

dard, which had been read into section 5107(b), was

inapplicable. Instead, “the benevolent intent behind the

veterans system” supported the conclusion that “a showing

of clear and convincing evidence to the contrary is ...

[required] to rebut the presumption of service-connection

afforded a veteran under 38 U.S.C. § 105.” Jd. at 1305. The

panel decision remanded to the Court of Appeals for

Veterans Claims for consideration under a clear and

convincing evidence standard. Jd. Judge Schall, relying on

Smith and Belcher, dissented and urged that this court did

not have jurisdiction over the clear and convincing evi-

dence issue because this issue was not decided by the

Court of Appeals for Veterans Claims or raised in that

court. Id. at 1306 (Schall, J., dissenting). Judge Schall also

concluded that “[e]ven absent the jurisdictional impedi-

ment, [he] would be disinclined for prudential reasons to

consider the issues raised by Ms. Forshey because they

were not raised before the [Court of Appeals for Veterans

Claims].” Jd. at 1307 (Schall, J., dissenting).

On February 5, 2001, we granted the government’s

petition for rehearing en banc, and vacated the panel

opinion. We asked the parties to brief the following issues

for purposes of the rehearing en banc:

App. 10

1. Is the rationale and holding in this case

consistent with the rationale and holdings in

Smith and Belcher?

2. If the rationale and holding in this case is

not consistent with the rationale and holdings in

Smith and Belcher, should Smith and Belcher be

overruled?

3. If Smith and Belcher are not overruled, are

the rationale and holdings in those cases consis-

tent with the rationale and holding in Jn re Bai-

ley?

4. If the rationale and holdings in Smith and

Belcher are not consistent with the rationale and

holding in In re Bailey, which of Smith and

Belcher or In re Bailey should be overruled?

Oral argument was held on October 3, 2001.

DISCUSSION

I Jurisdiction

Section 7292 governs our jurisdiction. It is lengthy

and provides in pertinent part:

(a) After a decision of the United States Court

of Appeals for Veterans Claims is entered in a

case, any party to the case may obtain a review of

the decision with respect to the validity of any

statute or regulation (other than a refusal to re-

view the schedule of ratings for disabilities

adopted under section 1155 of this title) or any

interpretation thereof (other than a determina-

tion as to a factual matter) that was relied on by

the Court in making the decision. Such a review

pe yee

App. 11

_ shall be obtained by filing a notice of appeal with

the Court of Appeals for Veterans Claims within

the time and in the manner prescribed for appeal

to United States courts of appeals from United

States district courts.

* * *

Federal Circuit shall have exclusive jurisdiction

to review and decide any challenge to the validity

of any statute or regulation or any interpretation

thereof brought under this section, and to inter-

pret constitutional and statutory provisions, to

the extent presented and necessary to a decision.

The judgment of such court shall be final subject

to review by the Supreme Court upon certiorari,

in the manner provided in section 1254 of title

28.

(d)(1) The Court of Appeals for the Federal Cir-

cuit shall decide all relevant questions of law, in-

cluding interpreting constitutional and statutory

provisions. The court shall hold unlawful and set

aside any regulation or any interpretation thereof

(other than a determination as to a factual mat-

ter) that was relied upon in the decision of the

Court of Appeals for Veterans Claims that the

Court of Appeals for the Federal Circuit finds to

be —

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

or limitations, or in violation of a statutory right;

App. 12

(D) without observance of procedure required

by law.

(2) Except to the extent that an appeal under

this chapter presents a constitutional issue, the

Court of Appeals may not review (A) a challenge

to a factual determination, or (B) a challenge to a

law or regulation as applied to the ie of a par-

ticular case.

(e1) Upon such review, the Court of Appeals

for the Federal Circuit shall have power to affirm

or, if the decision of the Court of Appeals for Vet-

erans Claims is not in accordance with law, to

modify or reverse the decision of the Court of Ap-

peals for Veterans Claims or to remand the mat-

ter, as appropriate.

(2) Rules for review of decisions of the Court of

Appeals for Veterans Claims shall be those pre-

scribed by the Supreme Court under section 2072

of title 28.

38 U.S.C § 7292 (2000 & West Supp.2001) (emphases

added).°

This appeal comes to us against the background of our

panel decisions in Smith v. West, 214 F.3d 1331

(Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080,

148 L.Ed.2d 956 (2001), and Belcher v. West, 214 F.3d 1335

(Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1080,

* Subsection (b), which pertains to certified questions from the

Court of Appeals for Veterans Claims, is not relevant to this appeal and

is omitted.

asin Nia ie sae

5 ah te Sa al ns 2 ‘i

App. 13

148 L.Ed.2d 956 (2001), and the Supreme Court’s decision

in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d

80 (2000). Smith was a case in which the veteran sought to

reopen a previously denied claim on the basis of new and

material evidence. The BVA and the Court of Appeals for

Veterans Claims held that Smith’s proffered evidence was

not new and material under 38 U.S.C. § 5108, but instead

was merely cumulative of previously rejected evidence.

Smith, 214 F.3d at 1332. Smith abandoned this factual

issue on appeal and urged for the first time on appeal to

this court that the agency had failed to inform him of what

new and material evidence was required to reopen the

claim, and in particular that section 5103(a) of title 38

(providing that “the Secretary shall notify the claimant

and the claimant’s representative ... of any information,

and any medical or lay evidence, not previously provided

to the Secretary that is necessary to substantiate the

claim”) required such notice. Id. at 1333. He also urged

that the failure to notify denied him due process. Id. This

panel specifically found that the only issues appellant

raised on appeal were “whether the agency misconstrued

38 U.S.C. § 5103(a) (1994), and whether it thereby violated

Smith’s right to due process, by failing to inform Smith as

to what would constitute ‘new and material evidence’ of

service connection.” Jd. |

The panel then interpreted 38 U.S.C. § 7292(a). The

panel held that “[t]he ‘relied on’ language [in section 7 292]

ordinarily means that the issue of validity or interpreta-

tion was a part of the court’s decision as indicated by its

written opinion. Of course, we have held that avoidance of

an issue by the veterans court, when that issue was raised

below, does not deprive an appellant of the right to raise

that issue again here.” Jd. Because “Smith has raised

App. 14

issues not presented or addressed below ... we therefore

cannot address them.” Jd. at 1334. Accordingly, the panel

dismissed the appeal for lack of jurisdiction. Jd.

The Supreme Court decided Sims v. Apfel, shortly

before our decision in Smith, but Sims was not addressed

in Smith. In Sims, the Supreme Court addressed whether

Sims, a Social Security claimant seeking judicial review,

had waived judicial review of any issues of entitlement

that she did not include in her request for review by the

Social Security Appeals Council. Sims, 530 U.S. at 105,

120 S.Ct. 2080. The Court distinguished between court

proceedings and non-adversarial administrative proceed-

ings, and concluded that the non-adversarial nature of the

Social Security proceedings dictated that a “judicially

created issue-exhaustion requirement is inappropriate.”

Id. at 112, 120 S.Ct. 2080. Therefore, the Court held that

Sims did not waive any issue by failing to raise it at the

administrative level. Id.

In Belcher, another panel of this court held that Sims

did not suggest that Smith was wrongly decided. Belcher

sought benefits for psychiatric disability. Belcher, 214 F.3d

at 1335. He was entitled to a presumption of soundness,

under 38 U.S.C. § 1111, supporting his claim that his

psychiatric difficulties materialized while he was in

service. The presumption of soundness, however, is over-

come if the Secretary can demonstrate by clear and unmis-

takable evidence that the condition existed before entry

into service. See 38 C.F.R. § 3.304(b) (2001). The Court of

Appeals for Veterans Claims affirmed the BVA’s denial of

service connection for his psychiatric disability on the

ground that the Secretary had produced sufficient evi-

dence to overcome the presumption of soundness, relying

on oral statements made by Belcher. On appeal, Belcher

App. 15

abandoned the factual issue that had been decided by the

Court of Appeals for Veterans Claims. Instead, Belcher

urged reversal based on a regulatory provision, 38 C.F.R.

§ 3.304(b)\(3), not addressed by the Court of Appeals for

Veterans Claims, or argued to it. Belcher, 214 F.3d at 1336.

That regulation provided that signed statements against

interest made by veterans in service related to the origin

of disease or injury cannot be held against the veteran

unless the statement is independently corroborated. In

this court, Belcher argued that section 3.304(b)(3) should

be interpreted to include oral statements, and that under

such an interpretation the Secretary could not use

Belcher’s statements to overcome the presumption of

regularity. Id.

The panel followed the holding of Smith, in which

“Twle reasoned that where the Court of Appeals for Veter-

ans Claims neither addresses a legal issue nor has such an

issue presented to it, that court cannot be said to have

‘relied on’ the issue or argument ‘in making its decision.’”

Id. at 1837. The panel concluded that “[iJn this case, Mr.

Belcher’s [regulatory interpretation] issue was not ad-

dressed by or presented to the Court of Appeals for Veter-

ans Claims. Accordingly, we are without jurisdiction to

consider it.” Jd. The panel dismissed Mr. Belcher’s appeal

for lack of jurisdiction. Jd. at 1338. The panel decided that

Sims applied when there was no statute or regulation

addressing the issue-exhaustion requirement. Jd. at 1337.

As 38 U.S.C. § 7292(a) directly addressed the issue ex-

haustion requirement, Sims was inapplicable in this

context. Id. Specifically, the panel noted that:

{Slection 7292 is a jurisdictional bar to our con-

sideration of a legal issue or argument (one di-

rected to the validity or interpretation of a

App. 16

statute or regulation) on appeal absent at least

one of two conditions: (1) the Court of Appeals for

Veterans Claims addressed the issue or argu-

ment, or (2) the issue or argument was raised by

a party to the Court of Appeals for Veterans

Claims.

Id.

For many years before the creation of the Court of

Appeals for Veterans Claims and the enactment of section

7292, judicial review of decisions of the Veterans’ Admini-

stration (“VA”) was almost entirely foreclosed.° Proposals

were made to subject VA decisions to judicial review, but

both the concept of judicial review and the scope of that

review proved to be controversial. The debate was fueled

in part by Judicial Conference opposition to court of

appeals review of factual issues.’

The Senate bill (Senate Bill 11) was introduced on

January 6, 1987, by Senator Cranston. It provided for

* In Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 39

L.Ed.2d 389 (1974), the Supreme Court carved out a narrow exception

to the foreclosure rule for certain constitutional challenges to the

Veterans’ Administration’s actions.

” See S. 11, The Proposed Veterans’ Administration Adjudication

Procedure and Judicial Review Act, and S. 2292, Veterans’ Judicial

Review Act: Hearing on S. 11 and S. 2292 Before the Senate Comm. on

Veterans’ Affairs, 100th Cong. 43 (1988) (statement of Hon. Stephen G.

Breyer, then-judge, U.S. Court of Appeals for the First Circuit) (“I know

what I do each day, and I believe that reviewing Agency fact-finding is

something I don’t do very well... . And therefore, I hope that we do not

have significant additional work of a sort that other institutions might

perform comparatively better.”).

see oaky

App. 17

judicial review in district court of any BVA “decision” and

then subsequent appellate review of district court “deci-

sions” in the regional circuits. Veterans’ Administration

Adjudication Procedure and Judicial Review Act, S. 11,

100th Cong. §§ 4025(b), 4029 (1987). This bill provided for

review of factual determinations by the VA under a narrow

standard. The district court was to set aside BVA factual

findings “when [the finding] is so utterly lacking in a

rational basis in the evidence that a manifest and grievous

injustice would result if such finding were not set aside.”

Id. § 4026(a)(1)(D). The scope of review was similar to the

scope proposed in bills passed by the Senate in 1981, 1983,

and 1985. 134 Cong. Rec. S224 (daily ed. Jan. 6, 1987)

(statement of Sen. Cranston).

The Senate Committee Report retained this approach

and explained that its factual review standard “is intended

to afford the maximum possible deference to the BVA’s

expertise as an arbiter of the specialized types of factual

issues that arise in the context of claims for VA benefits,

while still recognizing and providing for the possibility of

error in BVA factual determinations... .” S.Rep. No. 100-

418, at 60 (1988). On the floor, a proposal by Senator

Murkowski to limit review by courts of appeals to review

of regulations and to “confine[ ] judicial review cases to

questions of interpretation of statutory and constitutional

law” was rejected, and in this respect the Committee bill

was approved. 134 Cong. Rec. $9193, S9208 (daily ed. July

11, 1988).

On the House side, Rep. Montgomery introduced a bill

(House Bill 5288) to establish a Court of Veterans Appeals.

(This court is presently known as the Court of Appeals for

Veterans Claims.) The Court of Veterans Appeals was

authorized to review determinations of the BVA. Veterans’

App. 18

Judicial Review Act, H.R. 5288, 100th Cong. § 4001, et seq.

(1988). Our court was given exclusive jurisdiction to

review the Court of Veterans Appeals, but the scope of that

jurisdiction was limited. Jd. §§ 4002, 4042. Utilizing

language virtually identical to that in the final bill, sub-

section (a) of House Bill 5288 provided that

“any party to the case may obtain a review of the

decision with respect to the validity of any stat-

ute or regulation (other than the schedule of rat-

ings for disabilities under section 355 of this

title) or any interpretation thereof (other than a

determination as to a factual matter) that was

relied on by the Court in making the decision.”

Id. § 4042(a)(1)(A). Although “(t]he Court of Appeals for

the Federal Circuit shall decide all relevant questions of

law, including interpreting constitutional and statutory

provisions,” this court “may not review the facts of the

appeal or the application of any law or regulation to those

facts unless there is presented a constitutional issue.” Jd.

§ 4042(b).

In supporting the preclusion of fact review, the House

Report noted:

The committee is concerned with restoring the

proper balance between the executive and judi-

cial branch with respect to the adjudication of

veterans’ claims. It is clear from the testimony

before the committee that judges do not wish to

take on the very technical and specialized task of

applying a well established body of law govern-

ing the adjudication of veterans’ claims to thou-

sands of factual disagreements which arise

between the VA and claimants.

App. 19

H.R.Rep. No. 100-963, at 24-25 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5806. However, the report did not

otherwise explain the jurisdictional language. Instead, the

report largely restated the language of the bill. Jd. at 4,

1988 U.S.C.C.A.N. at 5785 (“The reported bill

[p]rovide[s] for review by the Court of Appeals for the

Federal Circuit of any legal matter relied on by the Court

of Veterans Appeals in making a decision in a particular

case. This would include constitutional, statutory, and

regulatory matters, and interpretations of law.”); id. at 35,

1988 U.S.C.C.A.N. at 5818 (“The [Court of Appeals for the

Federal Circuit] would have exclusive jurisdiction to

review and decide any challenge to the validity of any law,

regulation or interpretation thereof that was relied on by

the (Court of Veterans Appeals] in making a decision in an

individual case.”).

The House passed House Bill 5288, as amended. 134

Cong. Rec. H9370 (daily ed. Oct. 3, 1988). The House-

passed version, in all relevant respects, was the same as

the bill reported by the House Committee. On October 18,

1988, the Senate and House versions were reconciled by a

compromise agreement (in lieu of a conference report),

which adopted the approach in the House bill. 134 Cong.

Rec. S16650-60 (daily ed. Oct. 18, 1988) (explanatory

statement on the compromise agreement).

The agreement was described as follows:

The validity of laws and regulations can be chal-

lenged in the U.S. Court of Appeals for the Fed-

eral Circuit... . If a veteran believes that a law

or regulation is invalid on its face and if that law

or regulation was germane to his claim, then the

veteran can ask the Federal [Clircuit to rule on

App. 20

the validity of that law or regulation. The Fed-

eral [CJircuit cannot ... review any factual ques-

tions in the veteran’s appeal. The Federal

[Circuit cannot review whether, in a particular

case, a law or regulation was applied inappropri-

ately.

Id. at S16659 (statement of Sen. Murkowski).

Having made the policy determination to pre-

clude review of factual determinations by the

[Court of Appeals for the Federal Circuit], we

have recognized that the court might be tempted

to review factual determinations under the guise

of reviewing “mixed questions of law and fact.”

This is the origin of the language contained in

the bill passed by the House (H.R.5288) and the

amended language contained in the compromise

agreement.

134 Cong. Rec. H10343 (daily ed. Oct. 19, 1988) (statement

of Rep. Montgomery).

The only change (other than renumbering the sections

and adding the words “United States” before “Court of

Veterans Appeals”) to what became the relevant language

of subsection (a) was a change in the language of the

parenthetical from “other than the schedule of ratings for

disabilities under section 355 of this title” in the original

bill to “other than a refusal to review the schedule of

ratings for disabilities adopted under section 355 of this

title” in the final bill. H.R. 5288, 100th Cong.

§ 4042(a)(1)(A) (1988); 134 Cong. Rec. S31564 (daily ed.

Oct. 18, 1988). The language of subsection (a) was virtu-

ally unchanged from the time of the original House bill

Pe ee ees

App. 21

through final approval. See id. The language of subsec-

tions (c), (d) and (e) also remained essentially unchanged

from the beginning to the end of the approval process.

The compromise agreement was approved by both

Houses, id. at S16658-60, and the bill was enacted into

law. Veterans’ Judicial Review Act, Pub.L. No. 100-687,

102 Stat. 4105 (1988).

Apart from making clear that our review was to be

limited to issues of law, the legislative history sheds little

light on the scope of our jurisdiction. So far as judicial

jurisdiction was concerned, the focus of the legislative

history was on the judicial review of facts and the applica-

tion of law to fact. See, e.g., 1384 Cong. Rec. S16658-59

(daily ed. Oct. 18, 1988) (statement of Sen. Murkowski);

134 Cong. Rec. H10343 (daily ed. Oct. 19, 1988) (statement

of Rep. Montgomery); id. at H10351 (explanatory state-

ment of compromise agreement). There simply was no

controversy over, or attention given to, other aspects of the

jurisdictional provisions. The language of subsection (a) is

barely mentioned in the House committee report’ or the

* See H.R.Rep. No. 100-963, at 4, reprinted in 1988 U.S.C.C.A.N.

5782, 5785 (1988) (“The reported bill ... [plrovide[s] for review by the

Court of Appeals for the Federal Circuit of any legal matter relied on by

the Court of Veterans Appeals in making a decision in a particular case.

This would include constitutional, statutory, and regulatory matters,

and interpretations of law.”); Id. at 35, 1988 U.S.C.C.A.N. at 5818

(1988) (“The [Court of Appeals for the Federal Circuit] would have

exclusive jurisdiction to review and decide any challenge to the validity

of any law, regulation or interpretation thereof that was relied on by

the [Court of Veterans Appeals] in making a decision in an individual

case.”).

App. 22

House floor debate,’ and when it is mentioned, apart from

making clear that “jurisdiction” is being conferred by

subsection (a), the legislative history merely reiterates the

language of the statute. The choice of the jurisdictional

language in subsections (c), (d) and (e) is also not ex-

plained apart from the limitation imposed on review of

facts." None of the compromise agreement changes to the

House-passed version of what became section 7292 sheds

any light on the purpose or scope of the jurisdictional

language. See supra pp. 16-17.

We must therefore approach the task of interpretation

based on the language of the statute itself without signifi-

cant guidance from the legislative history. In doing so, we

must, of course, “construe jurisdictional statutes narrowly

and ‘with precision and with fidelity to the terms by which

* Rep. Lagomarsino described the “relied on” language in the

original House bill: “(TJhis legislation will provide for review by the

Court of Appeals for the Federal Circuit of any legal matter relied on by

the Court of Veterans Appeals in making a decision in a particular case.

This would include constitutional, statutory, and regulatory matters,

and interpretations of law.” 134 Cong. Rec. H9262 (daily ed. Oct. 3,

1988) (statement of Rep. Lagomarsino).

* In describing the limitation on factual review, Senator

Murkowski explained:

The key to the compromise — and I cannot overemphasize

this point — is the limited nature of the Federal [Clircuit’s

jurisdiction.

The compromise does not envision the Federal [Cl]ircuit as

having general oversight of the Court of Veterans Appeals.

The compromise permits the Federal [Cl]ircuit to review

questions involving the validity of statutes and regulations

as if it were reviewing them under a challenge to rulemak-

ing. And that’s it . . . that’s it.

134 Cong. Rec. S16659 (daily ed. Oct. 18, 1988) (statement of Sen.

Murkowski).

App. 23

Congress has expressed its wishes.’” Bailey v. West, 160

F3d 1360, 1363 (Fed.Cir.1998) (quoting Cheng Fan Kwok

v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 20 L.Ed.2d 1037

(1968)).

Unlike other provisions for appellate jurisdiction,”

section 7292 does not simply create jurisdiction to review

cases from the Court of Appeals for Veterans Claims.

While it is clear that we have only “issue” jurisdiction and

not “case” jurisdiction, the nature of our “issue” jurisdic-

tion requires some elaboration. To determine the scope of

the jurisdiction conferred we must examine various parts

of the statute.

Subsection (a) of section 7292 provides for our juris-

diction by stating that “any party to the case may obtain a

review of the decision with respect to the validity of any

statute or regulation ... or any interpretation thereof ...

that was relied on by the [Court of Appeals for Veterans

Claims] in making the decision.” 38 U.S.C. § 7292(a) (West

Supp.2001) (emphases added). We conclude that the

statute imposes somewhat different standards for validity

and interpretation challenges.

With respect to validity challenges, the statute confers

jurisdiction to “review” a decision “with respect to the

validity of any statute or regulation ... that was relied on

by the [Court of Appeals for Veterans Claims] in making

1 See 28 U.S.C. § 1291 (1994) (“The courts of appeals (other than

the United States Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals from all final decisions of the district courts of

the United States....”).

App. 24

the decision.” Jd. On the face of this provigion, if there is a

question as to the validity of a statute or regulation “relied

on” by the Court of Appeals for Veterans Claims in making

its decision, we have jurisdiction to consider the issue of

validity. The question is what is meant by the term “relied

on.” The Supreme Court has instructed us that “[wJhen a

word is not defined by statute, we normally construe it in

accord with its ordinary or natural meaning.” Smith v.

United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124

L.Ed.2d 138 (1993). As in other areas of statutory inter-

pretation,” we turn to the dictionary for assistance as to

the ordinary meaning of the phrase “relied on.”

The relevant dictionary definition of “rely” is “to find

support: DEPEND.” Webster’s Third New International

Dictionary 1919 (1976). See also II The Shorter Oxford

English Dictionary 1789-90 (3d ed. 1973) (“To rest upon a

support.”). In other words, as described below, the decision

below must depend in some respect on the particular

statute or regulation whose validity is called into question.

With respect to interpretation challenges, we are

given jurisdiction under subsection (a) to review the

decision “with respect to ... any interpretation [of a

statute or regulation] . . . that was relied on by the [Court

of Appeals for Veterans Claims] in making the decision.”

* See also Humana, Inc. v. Forsyth, 525 U.S. 299, 309-10, 119 S.Ct.

710, 142 L.Ed.2d 753 (1999) (citing Black’s Law Dictionary when

interpreting a statutory term); Muscarello v. United States, 524 U.S.

125, 128, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (interpreting a

statutory term in light of its dictionary definition); MCI Telecomms.

Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225-27, 114 S.Ct. 2223, 129

L.Ed.2d 182 (1994) (looking to dictionary definitions to interpret the

meaning of a disputed statutory phrase); Reves v. Ernst & Young, 507

U.S. 170, 177-79, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (same).

App. 25

This aspect of section 7292(a) requires us to determine

what constitutes an “interpretation.” At the time of the

enactment of this provision in 1988 (as is the case today),

Black’s Law Dictionary defined “interpretation” as “[t]he

art or process of discovering and ascertaining the meaning

of a statute.... ” Black’s Law Dictionary 734 (5th

ed.1979). See also Webster’s Third New International

Dictionary 1182 (1976) (“the act or the result of interpret-

ing: as... explanation of what is not immediately plain or

explicit.... ”); I The Shorter Oxford English Dictionary

1099 (3d ed.1973) (defining “interpret” as “[t]o expound the

meaning of; to render clear or explicit; to elucidate; to

explain.”).”” Under this definition, an interpretation of a

statute or regulation occurs when its meaning is elabo-

rated by the court. Again the “relied on” requirement

demands that the particular interpretation of the statute

or regulation be an interpretation on which the decision

below depended. This means the “relied on” language

demands that challenges to validity or interpretation can

confer jurisdiction on us only if the invalidation of the

See also Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436

(Fed.Cir.1998) (“‘Interpretive rules’ . .. clarify or explain existing law

or regulations. ... ”); Thermalloy, Inc. v. Aavid Eng’g, Inc., 121 F.3d

691, 692, 43 USPQ2d 1846, 1847-48 (Fed.Cir.1997) (“Claim interpreta-

tion is the process of giving proper meaning to the claim language.”);

NLRB v. Sheet Metal Workers Local 104, 64 F.3d 465, 468 (9th

Cir.1995) (warning in the context of a collective-bargaining agreement

against “convert{ing] every instance in which a supervisor merely

followed or applied the contract into one of contract interpretation”);

Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir.1993)

(“{Rleference to or consideration of the terms of a collective-bargaining

agreement is not the equivalent of interpreting the meaning of the

terms.”); Commercial Paper Holders v. R.W.\Hine (In re Beverly Hills

Bancorp), 649 F.2d 1329, 1333 (9th Cir.1981) (“The [process of interpre-

tation] requires the interpreter to derive meaning from the written

word. ...”).

App. 26

statute or regulation or the decision of the issue of inter-

pretation as urged by appellant would have altered the

outcome of the case below. We also cannot, of course,

decide hypothetical questions that would not have affected

the outcome of the case at the Court of Appeals for Veter-

ans Claims. This is in keeping with the requirements of

Article III which prohibits us from deciding abstract or

hypothetical questions. See, e.g., Hayburn’s Case, 2 U.S. (2

Dall.) 409 (1792). See Lewis v. Cont'l Bank Corp., 494 U.S.

472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (“Article

III denies federal courts the power ‘to decide questions

that cannot affect the rights of litigants in the case before

them’....”); North Carolina v. Rice, 404 U.S. 244, 246, 92

S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam) (“(FJederal

courts are without power to decide questions that cannot

affect the rights of litigants in the case before them.”).

Finally, subsection (a) provides:

[AJny party to the case may obtain a review of the

[Court of Appeals for Veterans Claims’) decision

with respect to the validity of any statute or regu-

lation ... or an interpretation thereof ... that

was relied on by [that] Court in making the deci-

sion.

38 U.S.C. § 7292(a) (West Supp.2001) (emphasis added).

The question here is whether the phrase “with respect to”

modifies the word “review” or the word “devision;” in other

words, whether the “with respect to” phrase describes the

scope of our “review” (i.e., the questions that we may take

up) or the scope of the “decision” below (i.e., the questions

that must have been addressed below). We conclude that it

modifies the word “review.” This seems quite clear from

the use of the term “relied on” later in the sentence

App. 27

to specifically define the relationship that must exist

between validity and interpretation issues and the deci-

sion below. The “relied on” language would have been

quite unnecessary if the earlier part of the sentence before

the “with respect to” language had already required that

the decision below have addressed those issues.

The phrase “with respect to,” should be given its

natural meaning. In Webster’s Third New International

Dictionary the definition of “with respect to” is “as regards:

insofar as concerns: with reference to.” Webster’s Third

New International Dictionary 1934 (1976). See also II The

Shorter Oxford English Dictionary 1809 (3d ed.1973)

(defining “respect” as “[t]o be directed to; to refer or relate

to; to deal or be concerned with”); Black’s Law Dictionary

1179 (5th ed.1979) (defining “respective” as “[rJelating to

particular persons or things, each to each; particular”).

Read in context, then, subsection (a) means “any party to

the case may obtain a review of the [Court of Appeals for

Veterans Claims’) decision” insofar as our review “relates

to” or “concerns” the “validity of any statute or regulation

_.. or an interpretation thereof...” on which the decision

below depended.

It is equally important that we make clear what

section 7292(a) does not require. First, it does not require

that the issue of validity or interpretation have been

contested in the Court of Appeals for Veterans Claims, or

even raised below as an issue in the case, so long as the

Court of Appeals for Veterans Claims’ decision depended

on the statute or regulation (in the case of a validity

challenge) or depended on a particular elaboration of a

statute or regulation (in the case of an interpretation

issue). Significantly, Congress did not adopt language

requiring that the issue have been “presented” to the

App. 28

Court of Appeals for Veterans Claims. In contrast, subsec-

tion (c) provided that “the Federal Circuit shall have

exclusive jurisdiction to review and decide any challenge

to the validity of any statute or regulation or any interpre-

tation thereof brought under this section, and to interpret

constitutional and statutory provisions, to the extent

presented and necessary to a decision.” 38 U.S.C. § 7292(c)

(2000) (emphasis added). As the government concedes, the

reference to issues “presented” refers to issues “presented”

to this court. It does not refer to issues “presented” to

decisions of the Court of Appeals for Veterans Claims. No

similar language requires that issues be “presented” to the

Court of Appeals for Veterans Claims.

It is also noteworthy that in section 7292 Congress

chose not to use explicit language appearing in a variety of

federal statutes limiting judicial review to issues raised

below. See Sims, 530 U.S at 108, 120 S.Ct. 2080; Woelke &

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665, 102

S.Ct. 2071, 72 L.Ed.2d 398 (1982) (“29 U.S.C. § 160(e) ...

provides that ‘[nJo objection that has not been urged before

the Board ... shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.’”); FPC v. Colo-

rado Interstate Gas Co., 348 U.S. 492, 497-498, 75 S.Ct.

467, 99 L.Ed. 583 (1955) (Section 19 of the Natural Gas

Act states that “‘[nJo objection to the order of the Commis-

sion shall be considered by the court [of Appeals] unless

such objection shall have been urged before the Commis-

sion in the application for rehearing unless there is rea-

sonable ground for failure so to do....’ 52 Stat. 831-832,

15 U.S.C. § 717r (a) and (b).”); United States v. L.A. Tucker

Truck Lines, Inc., 344 U.S. 33, 36 n. 6, 73 S.Ct. 67, 97

L.Ed. 54 (1952) (collecting statutes); Washington Ass’n for

App. 29

Television and Children v. FCC, 712 F.2d 677, 681-682 and

n. 6 (D.C.Cir.1983) (collecting statutes including 47 U.S.C.

§ 405, which states that “t]he filing of a petition for

rehearing shall not be a condition precedent to judicial’

review of [an FCC decision] except where the party seek-

ing such review .. . relies on questions of law or fact upon

which the Commission ... has been afforded no opportu-

nity to pass.”).

Second, when an issue of interpretation has been

raised before the Court of Appeals for Veterans Claims,

there is no requirement that it have been decided by that

court. As Belcher correctly concluded, we are not limited to

issues actually decided by the Court of Appeals for Veter-

ans Claims if the issue was properly raised before that

court. Instead, we have jurisdiction when “the issue or

argument was raised by a party to the Court of Appeals for

Veterans Claims.” Belcher, 214 F.3d at 1337. See also

Smith, 214 F.3d at 1333; Linville v. West, 165 F.3d 1382,

1384 (Fed.Cir.1999). Where the issue has been raised

below and not addressed by the court, the issue has

nonetheless been impliedly “relied on” by the Court of

Appeals for Veterans Claims if the result would have been

affected by adopting the position ur ged but not addressed.

We note also that, as discussed below, pro se pleadings

must be given a liberal construction when considering

whether an issue has been raised for jurisdictional pur-

poses.

In short, under subsection (a) we have jurisdiction to

review a decision of the Court of Appeals for Veterans

Claims if that review invokes: (1) issues concerning the

validity of statutes or regulations on which the decision of

the Court of Appeals for Veterans Claims depended;

(2) issues of interpretation if the Court of Appeals for

App. 30

Veterans Claims elaborated the meaning of a statute or

regulation and the decision depended on that interpreta-

tion; and (3) issues of validity or interpretation raised

before the Court of Appeals for Veterans Claims but not

decided, if the decision would have been altered by adopt-

ing the position that was urged.

Subsection (d)(1) explains the scope of our jurisdiction

under section 7292(a), charging us also with “decid[ing] all

relevant questions of law.” 38 U.S.C. § 7292(d)(1) (West

Supp.2001). So too subsection (e) defines our “power”

“[u]pon such review” and confers authority on us “to affirm

or, if the decision of the Court of Appeals for Veterans

Claims is not in accordance with law, to modify or reverse

the decision of the Court of Appeals for Veterans Claims or

to remand the matter, as appropriate.” 38 U.S.C.

§ 7292(e)(1) (West Supp.2001). Under these provisions, our

authority to decide issues of validity and interpretation

extends to all “relevant” legal issues. We turn once again

to the dictionary for a definition of the term “relevant.”

Webster’s Third New International Dictionary defines

“relevant” as “bearing upon or properly applying to the

matter at hand.” Webster’s Third New International

Dictionary 1917 (1976). See also II The Shorter Oxford

English Dictionary 1787 (3d ed.1973) (“(blearing upon,

connected with, pertinent to, the matter in hand”); Black’s

Law Dictionary 1160 (5th ed.1979) (“[alpplying to the

matter in question”). ;

Thus, we have jurisdiction to consider the validity or

interpretation of all statutes or regulations that “bear

upon or properly apply to” the issues before us. This

App. 31

conclusion is hardly unusual. In the area of federal ques-

tion jurisdiction, the Supreme Court has recognized that

the existence of a federal question that brings the case

within federal district court jurisdiction allows the court to

decide all relevant questions of law. See Siler v. Louisville

& Nashville R.R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 53

L.Ed. 753 (1909); Osborn v. Bank of United States, 22 U.S.

(9 Wheat.) 738, 823, 6 L.Ed. 204 (1824)."

To interpret the language of subsection (a) as prohibit-

ing us from deciding relevant issues not raised before or

decided by the Court of Appeals for Veterans Claims in

cases properly before us would lead to anomalous results.

Under this limiting interpretation, we would be barred

from deciding issues newly arising because of a change in

* See also R.R. Comm'n of Cal. v. Pac. Gas & Elec. Co., 302 U.S.

388, 391, 58 S.Ct. 334, 82 L.Ed. 319 (1938) (“Because of the federal

question raised by the bill of complaint, the District Court had jurisdic-

tion to determine all the questions in the case, local as well as fed-

eral.”); Davis v. Wallace, 257 U.S. 478, 482, 42 S.Ct. 164, 66 L.Ed. 325

(1922) (“(TJhe jurisdiction of that [district] court, and ours in reviewing

its action, extends to every question involved, whether of federal or

state law .... ”); Greene v. Louisville & Interurban R.R. Co., 244 U.S.

499, 508, 37 S.Ct. 673, 61 L.Ed. 1280 (1917) (“[TJhe jurisdiction of that

[district] court extended, and ours on appeal extends, to the determina-

tion of all questions involved in the case, including questions of state

law, irrespective of the disposition that may be made of the federal

question, or whether it be found necessary to decide it at all.”). That

concept, of course, was extended to create pendent or supplemental

jurisdiction over claims as well as issues. See 17A James Wm. Moore et

al., Moore’s Federal Practice § 120.11(2)][c][iii][D] (8d ed.1997); see also

28 U.S.C. § 1367(a) (1994) (“the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the

action within such original jurisdiction that they form part of the same

case or controversy under Article III of the United States Constitu-

tion.”).

App. 32

statutory or decisional law after the decision of the Court

of Appeals for Veterans Claims.

We need not in this case decide how far our authority

to decide other “relevant” questions of law extends. As we

have noted, it certainly extends to addressing the impact

of new statutes or new judicial interpretations while the

case is on appeal, and it must extend as well to the inter-

pretation of statutes or regulations which may affect the

interpretation of statutes or regulations that formed the

basis for the decision below or that could provide alterna-

tive grounds for the decision of the issue before the court.

The question of what other interpretations are “relevant”

must await another day.

In summary, while Smith anc Belcher may have been

correctly decided on their facts, to the extent that the

decisions in Smith and Belcher are viewed as announcing

a rule that is inconsistent with our holding here regarding

jurisdiction, they are modified accordingly.

We must now apply these principles to the jurisdic-

tional issues in this case. The appellant seeks to raise

three issues in this court: (1) the issue of the validity of 38

C.F.R. §3.301(c2) because it provides no standard of

proof to rebut the presumption of service connection set

forth in 38 U.S.C. § 105(a) (the “validity” issue); (2) the

interpretation of 38 U.S.C. § 105(a) concerning the use of

negative evidence to rebut the statutory presumption (the

“negative evidence” issue); and (3) the interpretation of 38

U.S.C. §5107(b) as to whether it includes a clear and

convincing evidence standard (the “burden of proof” issue).

Each of these three issues is within our jurisdiction.

MO ck ome

App. 33

First, the Court of Appeals for Veterans Claims relied

on 38 C.FR. § 3.301(c)(2) (the validity of which is chal-

lenged) in reaching its decision. Forshey v. West, 12

Vet.App. 71 at 74 (Vet.App. 1998). Second, the Court of

Appeals for Veterans Claims addressed the “negative

evidence” issue explicitly when it concluded that “the

Board acted properly in considering” “so-called ‘negative

evidence’ [which] tends to disprove the existence of an

intervening cause, which is relevant to a determination of

proximate cause.” Jd. at 74. Finally, the Court of Appeals

for Veterans Claims elaborated the meaning of section

5107(b) concerning the appropriate burden of proof by

citing its earlier decision in Gilbert v. Derwinski, 1

Vet.App. 49, 53-54 (1990), which contained an interpreta-

tion of the statute, and by noting that the Board had

“twice ... recognized that ‘ ... the preponderance of the

evidence must be against the claim for benefits to be

denied,’” and that “[a]ccordingly, the Board did not fail to

consider the benefit of the doubt rule in the appellant’s

case.” Forshey, at 76 (citations omitted). Therefore, we

have jurisdiction over each of the three issues that appel-

lant raises on appeal.

Before we leave the question of jurisdiction, it is

appropriate for us to note that jurisdictional issues under

section 7292 have proved difficult and have arisen fre-

quently. Despite our clarification of those provisions today,

this will continue. In enacting section 7292 in 1988 Con-

gress, responding to the concerns of the judiciary, declined

to vest us with case jurisdiction, and decided to confine our

jurisdiction to the consideration of particular issues in

order to avoid burdening our court with a myriad of less

App. 34

important cases. In practice this has proved to have been

as unsatisfactory as the “issue” jurisdiction conferred in

other areas. Tex. Am. Oil Corp. v. United States Dep’t of

Energy, 44 F.3d 1557, 1563-64 (Fed.Cir.1995) (en banc).

Determination of questions of jurisdiction has diverted the

attention of the court and burdened the parties with

unnecessary litigation. In the future, Congress may wish

to consider amending section 7292 to confer “case” juris-

diction (except for a continued bar on the review of fact

issues).

II Prudential Considerations

Our conclusion that we have jurisdiction over the

three issues, however, does not end the matter. There are

still prudential considerations articulated by the Supreme

Court that confine the exercise of our authority.

The leading authority in this area is the Supreme

Court’s decision in Hormel v. Helvering, 312 U.S. 552, 61

S.Ct. 719, 85 L.Ed. 1037 (1941). In Hormel, the Court,

after. deciding that the courts of appeals generally have

power to decide issues that were not directly raised below,

addressed the question whether they should do so. The~ —

Court stated the general rule:

Ordinarily an appellate court does not give con-

sideration to issues not raised below .... This is

essential in order that parties may have the op-

portunity to offer all the evidence they believe

relevant to the issues which the trial tribunal is

~ alone competent to decide; it is equally essential

in order that litigants may not be surprised on

appeal by final decision there of issues upon

which they have had no opportunity to introduce

evidence .... [However,] [t]here may always be

App. 35

exceptional cases or particular circumstances

which will prompt a reviewing or appellate court,

where injustice might otherwise result, to con-

sider questions of law which were neither

pressed nor passed upon by the court or adminis-

trative agency below.

Id. at 556-57, 61 S.Ct. 719. This court has applied Hormel

repeatedly to appeals from courts other than the Court of

Appeals for Veterans Claims, and has concluded with

respect to these other aspects of our jurisdiction that

“[wlith a few notable exceptions, such as some jurisdic-

tional matters, appellate courts do not consider a party’s

new theories, lodged first on appeal.” Sage Prods., Inc. v.

Devon Indus., Inc., 126 F.3d 1420, 1426, 44 USPQ2d 1103,

1108 (Fed.Cir.1997).”

Appellant and the supporting amici suggest, however,

that the Supreme Court’s decision in Sims v. Apfel, 530

U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), should

entirely excuse the failure of litigants before the Court of

Appeals for Veterans Claims to raise issues below because

'* See also Viskase Corp. v. Am. Nat'l Can Co., 261 F.3d 1316, 1326,

59 USPQ2d 1823, 1830 (Fed.Cir.2001) (“Although courts have occasion-

ally permitted ... review [of issues not properly raised in proceedings

below], it raises questions of fairness and surprise on appeal.”); Young

v. AGB Corp., 152 F.3d 1877, 1381, 47 USPQ2d 1752, 1755

(Fed.Cir.1998) (citing Hormel for the proposition that appellate courts

generally only consider issues raised below in order to allow parties to

offer all relevant evidence and to prevent unfair surprise on appeal);

Johns Hopkins Univ. v. Cellpro, Inc., 152 F.3d 1342, 1362, 47 USPQ2d

1705, 1720 (Fed.Cir.1998) (same); Great N. Corp. v. Henry Molded

Prods., Inc., 94 F.3d 1569, 1573, 39 USPQ2d 1997, 2000 (Fed.Cir.1996)

(same).

App. 36

of the special nature of the system for adjudicating veter-

ans’ claims. In Sims, the Supreme Court considered

whether an issue-exhaustion requirement was applicable

to the Social Security context. Jd. at 106, 120 S.Ct. 2080.

Sims had applied for Social Security benefits. Jd. at 105,

120 S.Ct. 2080. After both a state agency and a Social

Security administrative law judge (“ALJ”) denied her

claim, she requested that the Social Security Appeals

Council review her claim. After the Council denied review,

she sought review in a district court. Jd. In the district

court, Sims urged that “(1) the ALJ had made selective use

of the record; (2) the questions the ALJ had posed to a

vocational expert to determine petitioner’s ability to work

were defective because they omitted several of petitioner’s

ailments; and (3) in light of certain peculiarities in the

medical evidence, the ALJ should have ordered a consulta-

tive examination.” Jd. at 105-106, 120 S.Ct. 2080. The

district court rejected all of these arguments. The Fifth

Circuit affirmed on the merits of the first argument, while

concluding that it lacked jurisdiction with respect to the

second and third arguments because they were not previ-

ously raised in the request for review by the Appeals

Council. Id. at 106, 120 S.Ct. 2080. The Supreme Court

addressed whether Sims had waived any issues not raised

in the request to the Council. After explaining the general

prudential rule of Hormel, the Court concluded that “the

desirability of a court imposing a requirement of issue

exhaustion depends on the degree to which the analogy to

normal adversarial litigation applies in a particular

administrative proceeding.” Jd. at 109, 120 S.Ct. 2080. The

inquisitorial rather than adversarial nature of Social

Security proceedings made an issue-exhaustion require-

ment inappropriate. Jd. at 110, 120 S.Ct. 2080. Therefore

the Court concluded that Sims had not waived issues not

Le Coes SSS WS ERAN EREENzrce cet ene nee ey

App. 37

raised before the administrative agency. Id. at 112, 120

S.Ct. 2080.

In this case, the appellant and the amici urge that the

benevolent non-adversarial veterans system weighs in

favor of applying Sims to our review of the Court of

Appeals for Veterans Claims. We disagree. As we noted in

Bailey v. West, 160 F.3d 1360, 1365 (Fed.Cir.1998), under

the 1988 legislation “the system has changed from ‘a

nonadversarial, ex parte, paternalistic system for adjudi-

cating veterans’ claims,’ to one in which veterans like

Bailey must satisfy formal legal requirements, often

without the benefit of legal counsel, before they are enti-

tled to administrative and judicial review.” The veterans’

benefits system remains a non-adversarial system when

cases are pending before the Veterans’ Administration.

However, the Court of Appeals for Veterans Claims’ pro-

ceedings are not non-adversarial. Even if, as appellant

claims, 50% of the cases in the Court of Appeals for Veter-

ans Claims proceed without counsel, the Court of Appeals

for Veterans Claims is a court and depends upon the

adversarial parties to identify the issues for review. There

was no suggestion in Sims that issues not raised in the

district court in Social Security review proceedings could

normally be raised in a court of appeals. Accordingly,

Hormel rather than Sims provides the framework for our

analysis of the prudential considerations. We proceed to

address those considerations.

Hormel and subsequent cases, in emphasizing that

courts of appeals generally should not consider issues not

decided below, have also emphasized that the question “is

App. 38

one left primarily to the discretion of the courts of appeals

....” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868,

49 L.Ed.2d 826 (1976). Our discretion in this respect is

informed by more than a decade of experience in reviewing

decisions of the Court of Appeals for Veterans Claims. We

have found in those cases that counsel has attempted to

raise legal issues neither decided nor raised below. Indeed,

it is perhaps not unfair to suggest that the raising of such

issues occurs with some frequency.”

In light of that experience, we conclude that, in

general, we should not recognize exceptions to the general

rule, and, apart from issues of jurisdiction,” the classes of

cases in which we should consider issues not raised below

under section 7292 should be carefully defined.

** In addition to Smith and Belcher, see, e.g., Westberry v. Principi,

255 F.3d 1377, 1381 n. 2 (Fed.Cir.2001) (refusing to address for the first

time on appeal a veterans procedure manual, which had not been made

an issue before th» Court of Appeals for Veterans Claims); Boggs uv.

West, 188 F.3d 1335, 1337-38 (Fed.Cir.1999) (declining to review a

question of statutory interpretation, which was neither explicitly nor

implicitly raised below); Finch v. Hughes Aircraft Co., 926 F.2d 1574,

1577, 17 USPQ2d 1914, 1916-17 (Fed.Cir.1991) (failing to oppose the

motion to dismiss, appellant forfeits his right to contest the dismissal

on appeal).

” See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 743, 95 S.Ct.

1300, 43 L.Ed.2d 591 (1975); Jenkins v. McKeithen, 395 U.S. 411, 421,

89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (“[S]ince the question of standing

goes to this court’s jurisdiction, we must decide the issue even though

the court below passed over it without comment.”) (citations omitted);

Flast v. Cohen, 392 U.S. 83, 88 n. 2, 88 S.Ct. 1942, 20 L.Ed.2d 947

(1968) (“Because the question now presented goes-to our jurisdiction on

direct appeal, the lateness of the claim is irrelevant to our consideration

of it.”).

SRE RSD eT SOT cee ea nee ee OE aon ee SN a A

App. 39

First, there are cases in which a new statute altering

substance or procedure has been enacted after considera-

tion of the case by the lower court. When new legislation is

passed while an appeal is pending, courts have an obliga-

tion to apply the new law if Congress intended retroactive

application even though the issue was not decided or

raised below. See Landgraf v. USI Film Prods., 511 U.S.

244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Bradley

v. Sch. Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006,

40 L.Ed.2d 476 (1974) (“[A] court is to apply the law in

effect at the time it renders its decision, unless doing so

would result in manifest injustice or there is statutory

direction or legislative history to the contrary.”)."

Second, decision of an issue not decided or raised

below is permitted when there is a change in the jurispru-

dence of the reviewing court or the Supreme Court after

consideration of the case by the lower court. In other

words, an exception exists in “those [cases] in which there

have been judicial interpretations of existing law after

decision below and pending appeal — interpretations which

if applied might have materially altered the result.”

Hormel, 312 U.S. at 558-59, 61 S.Ct. 719. That was the

case in Hormel where the Supreme Court considered the

new precedent interpreting a relevant tax provision. The

% See also Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 365

(4th Cir.1985) (Usually, when there is a change in the law while a case

is pending, a court applies the law in effect at the time of the decision

and not antecedent law, unless so doing would result in manifest

injustice or there is a statutory direction or legislative history to the

contrary.”); United States v. Fitzgerald, 545 F.2d 578, 581 (7th

Cir.1976) (“It is well established that when a lower court relies on a

legal principle which is changed by a treaty, statute; or decision prior to

direct review, an appellate court must apply the current law rather

than the law as it existed at the time the lower court acted.”).

App. 40

District of Columbia Circuit has succinctly explained the

supervening decision doctrine, stating that appellate

courts will consider an issue not raised at trial “where a

supervening decision has changed the law in appellant’s

favor and the law was so well-settled at the time of trial

that any attempt to challenge it would have appeared

pointless.” United States v. Washington, 12 F.3d 1128, 1139

(D.C.Cir.1994).”

Third, appellate courts may apply the correct law even

if the parties did not argue it below and the court below

did not decide it, but only if an issue is properly before the

court. The Supreme Court in Kamen v. Kemper Financial

Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152

(1991), squarely addressed this exception. The question

presented in Kamen was whether a representative share-

holder in a derivative action founded on the Investment

* See also Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.2000)

(noting that the court must consider an intervening Supreme Court

decision if relevant to the appeal); Holland v. Big River Minerals Corp.,

181 F.3d 597, 605-606 (4th Cir.1999) (“The intervening law exception to

the general rule that the failure to raise an issue timely in the district

court waives review of that issue on appeal applies when ‘there was

strong precedent’ prior to the change, such that the failure to raise the

issue was not unreasonable and the opposing party was not prejudiced

by the failure to raise the issue sooner.”) (citations omitted); United

States v. Lewis, 40 F.3d 1325, 1343 n. 6 (1st Cir.1994) (applying a case

that the court recently decided to the present case pending on appeal);

United States v. Carpenter, 961 F.2d 824, 826 (9th Cir.1992) (applying a

new Supreme Court decision retroactively to the case pending on

appeal); United States v. Novey, 922 F.2d 624, 629 (10th Cir.1991) (“An

exception to the rule precluding review exists where an intervening

Supreme Court decision changes the law while an appeal is pending.”);

United States v. Berkery, 889 F.2d 1281, 1282 (3d Cir.1989) (same);

United States v. Fitzgerald, 545 F.2d at 582 (When the decisional law

has changed, “an appellate court must apply the current law rather

than the law as it existed at the time the lower court acted.”).

Ee a Ae” CRA A VG oe kDa CF ha em ReP, ie

App. 41

Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a-1(a), et

seq., was required to make a demand on the board of

directors to bring suit even when such a demand would be

futile. Id. at 92, 111 S.Ct. 1711. On appeal both parties

agreed that the issue should be decided under federal

common law. The Seventh Circuit held that such a de-

mand was required under federal common law, and that,

because the shareholder representative did not raise the

issue of whether state law should govern, the issue of the

applicability of state law had been waived. Id. at 94-95,

111 S.Ct. 1711. The Supreme Court reversed, holding that

“‘w]hen an issue or claim is properly before the court, the

court is not limited to the particular legal theories ad-

vanced by the parties, but rather retains the independent

power to identify and apply the proper construction of

governing law.” Id. at 99, 111 S.Ct. 1711; accord United

States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,

508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)

(“‘The judicial Power’ extends to cases ‘arising under...

the Laws of the United States,’ Art. III, § 2, cl. 1, anda

court properly asked to construe a law has the constitu-

tional power to determine whether the law exists.”) (cita-

tion omitted). Similarly, we may decide to apply the

® See also United States v. Dickerson, 166 F.3d 667, 672 (4th

Cir.1999) (“[T]he Department of Justice cannot prevent us from

_ deciding this case under the governing law simply by refusing to argue

it.”) (reversed on other grounds); Williams-Guice v. Bd. of Educ. of City

of Chicago, 45 F.3d 161, 164 (7th Cir.1995) (“(Llitigants’ failure to

address the legal question from the right perspective does not render us

powerless to work the problem out properly. A court of appeals may and

often should do so unbidden rather than apply an incorrect rule of law

to the parties’ circumstances.”); Empire Life Ins. Co. of Am. v. Valdak

Corp., 468 F.2d 330, 334 (5th Cir.1972) (“Appellate review does not

consist of supine submission to erroneous legal concepts even though

none of the parties declaimed the applicable law below. Our duty is to

(Continued on following page)

App. 42

correct law even if the parties do not argue it, if an issue is

properly before this court. For example, in this case if the

appellant had argued before the Court of Appeals for

Veterans Claims that the preponderance of the evidence

standard was incorrect and had urged instead a beyond a

reasonable doubt standard under the statute, we would

have authority on appeal to hold that the statute required

application of a clear and convincing evidence standard (if

we were to conclude that this was the correct standard). In

this case, however, before the Court of Appeals for Veter-

ans Claims the appellant raised no issue below concerning

the correct standard of review, and this exception therefore

would not apply.

Fourth, in situations where a party appeared pro se

before the lower court, a court of appeals may appropri-

ately be less stringent in requiring that the issue have

been raised explicitly below. In other words, a court of

appeals may require less precision in the presentation of

the issue to the lower court than it demands of a litigant

represented by counsel. This less demanding standard has

been repeatedly recognized by the Supreme Court and the

courts of appeals. In Hughes v. Rowe, 449 U.S. 5, 101 S.Ct.

173, 66 L.Ed.2d 163 (1980), the Supreme Court concluded

that the pleadings of pro se litigants should be held to a

lesser standard than those drafted by lawyers when

determining whether the complaint should be dismissed

for failure to state a claim because “[aJn unrepresented

litigant should not be punished for his failure to recognize

subtle factual or legal deficiencies in his claims.” Jd. at 9,

enunciate the law on the record facts. Neither the parties nor the trial

judge, by agreement or passivity, can force us to abdicate our appellate

responsibility.”) (citations omitted).

App. 43

15, 101 S.Ct. 173. See also Haines v. Kerner, 404 U.S. 519,

520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding a pro se

complaint to “less stringent standards than formal plead-

ings drafted by lawyers” when determining whether to

dismiss the complaint for failure to state a claim).”

We thus conclude that our consideration of issues not

decided by or raised before the Court of Appeals for Veter-

ans Claims must be carefully restricted. This does not, of

course, mean that future panels must in each case con-

sider issues not decided or raised below if the case falls

within the scope of one of the exceptions. We hold only

that in future cases, we may consider such issues where it

is appropriate to do so under all the circumstances. A

variety of considerations may counsel against considera-

tion of an issue not decided or raised below in a particular

case even though the question falls within one of those

exceptions. See Kamen, 500 U.S. at 100 n. 5, 111 S.Ct.

1711; Singleton, 428 U.S. at 121, 96 S.Ct. 2868. For exam-

ple, the fact that the appellant specifically urged the legal

2 ‘The courts of appeals have also applied less stringent standards.

See, e.g., Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir.2001) (“[Wle

liberally construe the pleadings of individuals who proceed pro se “on

review of a grant of summary judgment.); Herron v. Harrison, 203 F.3d

410, 414 (6th Cir.2000) (“A pro se plaintiffs complaint is held to an

especially liberal standard, and should only be dismissed for failure to

state a claim if it appears ‘beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief.’ ”);

Smith v. Hundley, 190 F.3d 852, 855 n. 7 (8th Cir.1999) (“We find that

even if some ambiguity can be found in the complaint, its request for

‘such other and further relief as the Court may deem just and proper’

coupled with the fact that it is a pro se complaint permits us, under a

liberal construction of the pleadings, to preliminarily consider the

issue.”); Nunnally v. MacCausland, 996 F.2d 1, 6 n. 8 (1st Cir.1993)

(noting that on review of a summary judgment, “[p]ro se filings are held

to a less stringent procedural standard than others”).

App. 44

rule that he now challenges counsels against consideration

of the issue. See Hormel, 312 U.S. at 557, 61 S.Ct. 719.

Moreover, in any particular case, we may either decide the

issue on appeal or remand for the Court of Appeals for

Veterans Claims to consider the issue. See Hormel, 312

U.S. at 558, 61 S.Ct. 719.

We turn now to consider whether prudential consid-

erations suggest that we should decline to address any of

the three issues in this case.

Because the negative evidence issue was raised and

decided below, prudential considerations do not suggest

that we should fail to address it. We conclude that the

negative evidence issue is without merit. As the Court of

Appeals for Veterans Claims correctly concluded, this

argument is without merit because evidence is defined as

“[aJll the means by which any alleged matter of fact, the

truth of which is submitted to investigation, is established

or disproved.” Black’s Law Dictionary 555 (6th ed.1990);

see also Black’s Law Dictionary 498 (5th ed.1979). Since

the definition of evidence encompasses “negative evi-

dence,” which tends to disprove the existence of an alleged

fact, this “negative evidence” was relevant to the proxi-

mate cause determination under the applicable statutes

and regulations. Accordingly, we conclude that the decision

below should not be reversed on the basis of appellant’s

“negative evidence” argument.

However, the validity and burden of proof issues were

not raised below. We conclude that these issues should not

be addressed because none of the exceptions applies here.

There is no new statute that governs these proceedings.

While we have articulated new law for jurisdictional and

prudential requirements in this opinion, that new law does

App. 45

not relate to the subject matter of the issues presented.

The exception authorizing us to apply the correct law is

not satisfied because no issue was raised below concerning

the correct standard of review. Finally, this is not a case

that was litigated pro se below. Under these circum-

stances, we decline to consider the validity and burden of

proof issues.

III Responses to Questions

As previously mentioned we asked the parties to

address four questions for purposes of the en banc rehear-

ing. We set forth below the questions and our answers to

these questions.

1. Is the rationale and holding in this case con-

sistent with the rationale and holdings in Smith

and Belcher?

Yes, except to the extent that our decision modi-

fies Smith and Belcher. We hold that we have ju-

risdiction over: (1) issues concerning the validity

of statutes or regulations on which the decision

of the Court of Appeals for Veterans Claims de-

pended; (2) issues of interpretation if the Court of

Appeals for Veterans Claims elaborated the

meaning of a statute or regulation and the deci-

sion depended on that interpretation; (3) issues

of validity or interpretation raised before the

Court of Appeals for Veterans Claims but not de-

cided, if the decision would have been altered by

adopting the position that was urged; and (4)

other “relevant” questions of law. However, even

when jurisdiction exists, our authority to con-

sider issues not raised before the Court of Ap-

peals for Veterans Claims is limited.

App. 46

2. If the rationale and holding in this case is

not consistent with the rationale and holdings in

Smith and Belcher, should Smith and Belcher be

overruled?

This question is inapplicable.

3. If Smith and Belcher are not overruled, are

the rationale and holdings in those cases consis-

tent with the rationale and holding in Jn re Bai-

ley?

We decline to address this question. See below.

4. If the rationale and holdings in Smith and

Belcher are not consistent with the rationale and

holding in Jn re Bailey, which of Smith and

Belcher or In re Bailey should be overruled?

In light of our disposition of this case, we need

not address whether section 7292(d)(2) gives us

jurisdiction over free-standing constitutional is-

sues that do not involve a challenge to the inter-

pretation or validity of a statute or regulation, as

we held in In re Bailey, 182 F3d 860

(Fed.Cir.1999).

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals for Veterans Claims is affirmed.

AFFIRMED.

COSTS

No Costs.

DISSENTING OPINION

App. 47

MAYER, Chief Judge, with whom Circuit Judge

NEWMAN joins, dissenting.

I disagree with the court’s imposition of the tradi-

tional rule of issue preclusion embodied in Hormel v.

Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037

(1941), upon the veterans’ system. The Hormel rule applies

to appeals from adversarial trial courts or administrative

hearings. It protects against surprise issues on appeal for

which parties have not had the opportunity to present

relevant evidence below. Id. at 556, 61 S.Ct. 719. Applica-

tion of such a rule in the veterans’ system is inappropriate

because the facts are developed in non-adversarial circum-

stances, and the system is uniquely paternalistic. There-

fore, I respectfully dissent.

Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147

L.Ed.2d 80 (2000), is the appropriate model. It held that a

judicially-imposed requirement of issue exhaustion is

inappropriate in the social security context because the

parties have a nonadversarial relationship:

It is true that we have imposed an issue-

exhaustion requirement even in the absence of a

statute or regulation. But the reason we have

done so does not apply here. .. . The desirability

of a court imposing a requirement of issue ex-

haustion depends on the degree to which the

analogy to normal adversarial litigation applies

in a particular administrative proceeding. Where

the parties are expected to develop the issues in

an adversarial administrative proceeding, it

seems to us that the rationale for requiring issue

exhaustion is at its greatest. Where, by contrast,

App. 48

an administrative proceeding is not adversarial,

we think the reasons for a court to require issue

exhaustion are much weaker.

Id. at 108-10, 120 S.Ct. 2080 (internal quotations and

citations omitted) (emphasis added). Because social

security proceedings are inquisitorial, far from adversar-

ial, in which the function of the administrative judge is to

investigate facts and develop arguments both for and

against granting benefits, Sims concluded that “the

Hormel analogy to judicial proceedings is at its weakest in

this area. The adversarial development of issues by the

parties — the ‘com[ing]} to issue’ — on which that analogy

depends simply does not exist.” Jd. at 112, 120 S.Ct. 2080

(citation omitted).

The Sims rationale applies with equal, if not greater

force in this arena. Indeed, “the degree to which the

analogy to normal adversarial litigation applies,” id. at

109, 120 S.Ct. 2080, is even slighter than in Sims. The

system for awarding veterans’ benefits is “imbued with

special beneficence” from a sovereign grateful to a “special

class of citizens, those who risked harm to serve and

defend their country.” Bailey v. West, 160 F.3d 1360, 1370

(Fed.Cir.1998). It is “supposed to be a nonadversarial, ex

parte, paternalistic system,” that is uniquely pro-claimant.

Collaro v. West, 136 F.3d 1304, 13809 (Fed.Cir.1998).

Viewed in its entirety, the veterans’ system is constructed

as the antithesis of an adversarial, formalistic- dispute

resolving apparatus. It is entirely inquisitorial in the

regional offices and at the Board of Veterans’ Appeals

where facts are developed and reviewed. The purpose is to

ensure that the veteran receives whatever benefits he is

entitled to, not to litigate as though it were a tort case. If

issue preclusion is inappropriate in the inquisitorial social

aio |

App. 49

security forum, it should not be imposed upon the veter-

ans’ system, either. The mandate of both is to provide what

has been earned. But as we observed in Bailey, 160 F.3d at

1365, the salutary system has changed since the Veterans’

Judicial Review Act to the opposite of what Congress

intended. =-

It is true that Sims involved court review of agency

decisions, and we are reviewing a court judgment. But

that is of no moment because the Veterans Court is not a

fact finding body like a district court. Review permits no

additional evidence, and does not disturb factual findings.

The factual foundation of the administrative decision of

the board passes through the Veterans Court to us as a

matter of law. Therefore, the Hormel analogy is again

inappropriate because we are authorized to address only

issues of law.

II.

Even if the court’s formulation of the Hormel frame-

work were appropriate here, I would think the court

should be less parsimonious in its discretionary review

decisions. I would expect the court to decide the proper

standard for rebutting service-connection. This question

falls squarely within the third exception to issue preclu-

sion set out by the court: “[Wle may decide to apply the

correct law even if the parties do not argue it, if an issue is

properly before this court.” Ante, at 1357 (relying on

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111

S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an -issue or

claim is properly before the court, the court is not limited

to the particular legal theories advanced by the parties,

App. 50

but rather retains the independent power to identify and

apply the proper construction of governing law.”)).

Forshey claimed that insufficient evidence was used to

meet the preponderance of the evidence standard in 38

U.S.C. § 5107(b),’ the benefit of the doubt rule, to rebut the

presumption of service connection set out in 38 U.S.C.

§ 105(a)’ and elucidated in 38 C.FR. § 3.301(c)(2).’ Her

argument is, in essence, and has been since the board

level, that insufficient evidence existed to deny her bene-

fits per section 3.301(c)(2). The court has already said the

* 38 U.S.C. § 5107(b) (1994) provides:

When, after consideration of all evidence and material of

record in a case before the Department with respect to bene-

fits under laws administered by the Secretary, there is an

approximate balance of positive and negative evidence re-

garding the merits of an issue material to the determination

of the matter, the benefit of the doubt in resolving each such ~

issue shall be given to the claimant. Nothing in this subsec-

tion shall be construed as shifting from the claimant to the

Secretary the burden specified in subsection (a) of this sec-

tion.

* 38 U.S.C. § 105(a) (1994) provides in relevant part:

An injury or disease incurred during active military, naval,

or air service will be deemed to have been incurred in line of

duty ... unless such injury or disease was a result of the

person’s own willful misconduct or abuse of alcohol or drugs.

* 38 C.F.R. § 3.301(c(2) (2001) (language unchanged since 1990)

provides in relevant part:

The simple drinking of alcoholic beverage is not of itself

willful misconduct. ... If, in the drinking of a beverage to

enjoy its intoxicating effects, intoxication results proxi-

mately and immediately in disability or death, the disability

or death will be considered the result of the person’s willful

misconduct.

App. 51

case is properly before us.‘ The court’s proposition that

this exception does not apply because Forshey did not

explicitly urge that a clear and convincing standard be

applied, ante, at 1357-58, defies logic. This exception

grants us the authority to identify what type and how

much evidence is needed to rebut service-connection under

38 U.S.C. § 105(a) and 38 C.FR. § 3.301(c)(2), and apply

the proper constructions.

We have discretion to consider questions not raised

below; we should exercise it. See Singleton v. Wulff, 428

U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). This

court has already set out a series of circumstances in

which exceptions to issue preclusion arise. L.E.A. Dy-

natech, Inc. v. Allina, 49 F.8d 1527, 1531 (Fed.Cir.1995).

We may choose to consider arguments if the issue is one of

pure law; the proper resolution is beyond all doubt; there

was no opportunity to raise the objection below; it is a

significant question of general impact or public concern; or

it is in the interest of substantial justice. Id. Even Hormel

advocates an exception to the strict application of issue

preclusion “as justice may require.” 312 U.S. at 559, 61

S.Ct. 719. “There may always be ... particular circum-

stances which will prompt a reviewing or appellate court,

where injustice might otherwise result, to consider

‘ The court carefully construes the language of our jurisdictional

statute, 38 U.S.C. § 7292, and concludes that jurisdiction is proper

because the Court of Appeals for Veterans Claims relied on 38 C.F.R.

§ 3.301(c)\(2); explicitly addressed the negative evidence issue raised by

38 U.S.C. §5107(b); and twice elaborated that denial of Forshey’s

claims required the burden of proof embodied in section 5107(b), a

preponderance of the evidence. Ante, at 1352-53. The original panel

decision made the same jurisdictional determinations. See Forshey v.

Gober, 226 F.3d 1299 (Fed.Cir.2000) (vacated).

RR EE ee enw a en ne ee eS eee ee See ee Mere eee

rer

App. 52

questions of law which were neither pressed nor passed

upon by the court or administrative agency below.” Id. at

557, 61 S.Ct. 719.

The issue in this case is a purely legal one, and

requires no additional factual development. It is a signifi-

cant question of public concern because fundamental due

process is implicated. And the standard of review requires

clarification so that the parties and factfinders understand

the level of evidentiary probity needed to rebut the pre-

sumption of service-connection. Review of the standard by

which veterans or their dependents may be denied benefits

is in the interest of substantial justice. I see no need to

constrain our discretion; because Congress created a

veteran-friendly system, the court should generously

indulge a presumption that the exceptions to issue preclu-

sion apply.

ITT.

The standard of proof applied to rebut the section 105

presumption of service-connection was derived from an

interpretation of 38 U.S.C. §5107(b) (then § 3007(b)) in

Gilbert v. Derwinski, 1 Vet.App. 49 (1990). This statute

provides that when the positive and negative evidence

concerning an issue material to the determination of a

veteran’s benefit claim is roughly in equipoise, the benefit

of the doubt is to be given to the claimant. See id. at 55.

The United States Court of Appeals for Veterans Claims

likened this to the rule in baseball that “the tie goes to the

runner.” Jd. Gilbert determined that in light of section

5107(b), “the preponderance of the evidence must be

against the claim for benefits to be denied.” Jd. at 54.

App. 53

In my view, section 5107(b) sets out not a standard of

proof, but a rule for weighing evidence material to a claim.

It is operative only after a claimant produces evidence to

establish his claim. In contrast, where one relies on a

presumption, he does not yet need to offer evidentiary

support. Section 5107(b) does not address the rebuttal of a

presumption.

A presumption has evidentiary value, but it is not a

form of evidence. Routen v. West, 142 F.3d 1434, 1439

(Fed.Cir.1998). Instead, a presumption affords a party “the

luxury of not having to produce specific evidence to estab-

lish the point at issue. When the predicate evidence is

established that triggers the presumption, the further

evidentiary gap is filled by the presumption. However,

when the opposing party puts in proof to the contrary of

that provided by the presumption, and that proof meets the

requisite level, the presmption disappears.” Id. at 1440

(citations omitted) (empnasis added). When such evidence

overcomes the presumption, “[tJhe party originally favored

by the presumption is now put to his factually-supported

proof. This is because the presumption does not shift the

burden of persuasion, and the party on whom that burden

falls must ultimately prove the point at issue.... ” Id.

Once a fact is no longer presumed, a party must rely on

actual evidence to establish its existence.

Negative evidence, actual evidence which weighs

against a party, must not be equated with the absence of

substantive evidence. Rebutting a presumption requires

affirmative proof. See Amin v. Merit Sys. Prot. Bd., 951

F.2d 1247, 1254 (Fed.Cir.1991). Forshey correctly argues

that the government failed to offer affirmative proof that

the veteran’s death was proximately and immediately

caused by his willful misconduct. It offered that the

App. 54

veteran had an elevated blood alcohol level, the weather

was clear, the road surface was dry, it was daylight, and

there was no sign of mechanical failure of the motorcycle.

But this says nothing about causation; it reflects an

absence of causal evidence. Forshey was denied benefits

based on a negative inference from the lack of an apparent

cause. The absence of actual evidence is not substantive

“negative evidence.”

Once all the actual positive and negative evidence is

presented, proof is assessed in the manner required by

section 5107(b), with doubt resolved in the veteran’s favor.

The determination, then, of whether a presumption is

rebutted does not involve a weighing of the evidence for

and against the material issues in a claim in accordance

with section 5107(b). Instead, the presumption is rebutted

when the contrary evidence “meets the requisite level” to

cast sufficient doubt on its viability. Routen, 142 F.3d at

1440. Other statutes related to veterans’ benefits have

explicitly set forth this requisite level, see, e.g., 38 U.S.C.

§ 1154(b) (1994) (“Service-connection of such injury or

disease may be rebutted by clear and convincing evidence

to the contrary.”), but section 105 is silent.

Even if the Secretary had promulgated a regulation

setting out an evidentiary standard, we would not be

bound to defer to a preponderance standard. See Gardner

v. Brown, 5 F.3d 1456, 1463 (Fed.Cir.1993) (refusing to

defer to a long-standing Veterans Administration regula-

tion on four separate bases), aff’d, 513 U.S. 115, 115 S.Ct.

552, 130 L.Ed.2d 462 (1994). In this instance, however,

section 3.301(c)(2) of the regulation does not provide an

evidentiary standard by which the section 105(a) pre-

sumption that an injury occurs during active service may

be rebutted. Instead, the Secretary argues that the

App. 55

preponderance of the evidence standard applies based on

section 5107(b). To the contrary, I believe the veterans’

benefits system demands a more exacting standard.

IV.

A standard of proof serves to “instruct the fact-finder

concerning the degree of confidence our society thinks he

should have in the correctness of factual conclusions.” In

re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970). “[T]he minimum standard of proof tolerated by

the due process requirement reflects not only the weight of

the private and public interests affected, but also a socie-

tal judgment about how the risk of error should be distrib-

uted between the litigants.” Santosky v. Kramer, 455 US.

745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Over

time, three general standards have emerged: proof by a

preponderance of the evidence, proof by clear and convinc-

ing evidence, and proof beyond a reasonable doubt.

The Supreme Court’s discussion in Addington uv.

Texas, 441 U.S. 418, 423-25, 99 S.Ct. 1804, 60 L.Ed.2d 323

(1979), provides a helpful summary of the standards of

proof and their rationales. In civil suits, the preponder-

ance of the evidence standard has been employed, allocat-

ing-the risk of error almost evenly between parties in a

situation with which society is only minimally concerned.

At the other end is the reasonable doubt standard, typi-

caily reserved for criminal cases. It provides the toughest

standard for rebuttal of the presumption that an individ-

ual is innocent until proven guilty, reflecting the grave

concern for errors that could send an innocent individual

to prison. As the Court noted, “{iJn the administration of

_ - a NE PEI ATT

App. 56

criminal justice, our society imposes almost the entire risk

of error upon itself.” Id. at 423-24, 99 S.Ct. 1804.

The clear and convincing evidence standard has been

used in civil suits where “particularly important individ-

ual interests” are at stake, under circumstances where the

interests are substantially more important than the “mere

loss of money,” or where there are accusations of “quasi-

criminal wrongdoing.” Jd. at 424, 99 S.Ct. 1804. Under

these conditions, societal interest dictates that one side

should be afforded protection from the risk of error that

exceeds the limits of a preponderance standard but falls

short of the exacting standard in criminal cases. See, e.g.,

Markland v. Office of Personnel Management, 140 F.3d

1031, 1035 (Fed.Cir.1998) (agency establishing rationale

for reduction in force acquires presumption of good faith

and lawfulness rebuttable by clear and convincing evi-

dence); Pennwalt Corp. v. Akzona Inc., 740 F.2d 1573, .

1578-79 (Fed.Cir.1984) (party challenging presumptive

validity of a patent must present clear and convincing

evidence of invalidity).

In devising the veterans’ benefits system, Congress

has provided many statutory advantages to lighten the

burden of proving entitlement to benefits: several pre-

sumptions (including the one before us), the benefit of the

doubt rule, and the duty of the Secretary to assist a

claimant in developing the facts of his claim, see, e.g.,

Veterans Claims Assistance Act of 2000, Pub.L. No. 106-

_ 475, 114 Stat. 2096 (codified as amended in scattered

sections of 38 U.S.C.A.). Furthermore, the Supreme

Court’s mandate that any interpretive doubt about the

meaning of language in a statute be resolved in the vet-

eran’s favor derives from an appreciation of the benevolent

intent behind the veterans’ system. See Brown v. Gardner,

App. 57

513 U.S. 115, 117-18, 115 S.Ct. 552, 130 L.Ed.2d 462

(1994); Jensen v. Brown, 19 F3d 1413, 1417 (Fed.Cir.

1994).

It is apparent that a preponderance of the evidence

standard does not fairly distribute the risk between a

veteran and the government. Congress intends that “if any

error occurs, it will occur in the veteran’s favor.” Jensen,

19 F.3d at 1417 (emphasis added). The government is more

capable of shouldering the burden of error if an wndeserv-

ing claimant prevails, than would be a deserving veteran

or his survivor wrongly denied benefits. Therefore, no less

than a showing of clear and convincing evidenee to the

contrary is sufficient to rebut the presumption of service-

connection afforded a veteran under 38 U.S.C. § 105.

This conclusion fits comfortably within the statutory

scheme of the veterans’ benefits system. The clear and

convincing standard is explicitly present in other pre-

sumptive statutes. See 38 U.S.C. § 1154(b) (1994) (service-

connection for disease or injury suffered by combat veter-

ans must be rebutted by clear and convincing evidence);

id. § 1111 (requiring clear and unmistakable evidence to

rebut a presumption of sound condition); see also 38 C.FR.

§ 3.306(b) (2001) (clear and unmistakable evidence neces-

sary to rebut a presumption relating to service aggrava-

tion of preexisting conditions). There is no reason in law or

logic for a different rule here.

This case is another illustration of the old adage’ “Be

careful what you wish for, you just might get it.” Veterans

sought for over a hundred years to secure judicial review

of the Secretary's decisions. Now that they have it, they

are finding that judicialization is leading to prolonged

delays and a growing complexity of rules that rival the tax

App. 58

code in opaqueness. Congress should revisit its legislative

handiwork and restore the veterans’ system to its original

purpose set out by President Lincoln: “[T]o care for him

who shail have borne the battle, and for his widow, and his

orphan.” Second Inaugural Address of Abraham Lincoln

(Saturday, March 4, 1865), in Inaugural Addresses of the

Presidents of the United States from George Washington

1789 to George Bush 1989, at 143 (U.S. Gov't Printing

Office, Bicentennial ed.1989).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.