Patrick v. Dept. Of Veterans Affairs , 668 F.3d 1325 ( 2011 )

United States Court of Appeals
for the Federal Circuit
__________________________
CAROLYN J. PATRICK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7012
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-10899.
______________________
Decided: December 22, 2011
_______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
KENNETH S. KESSLER, Attorney, Commercial Litiga-
tion Branch, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General
PATRICK v. DVA 2
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
MAYER, Circuit Judge.
Carolyn J. Patrick (“Mrs. Patrick”) appeals from a fi-
nal judgment of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) denying her applica-
tion for an award of attorney fees and expenses pursuant
to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d). See Patrick v. Shinseki, 23 Vet. App.
512 (2010) (“Patrick IV”). We reverse and remand.
BACKGROUND
This is the third time Mrs. Patrick has appealed to
this court. The history of her claim seeking dependency
and indemnity compensation is detailed in our previous
decisions, see Patrick v. Nicholson, 242 F. App’x 695 (Fed.
Cir. 2007) (“Patrick III”); Patrick v. Principi, 103 F. App’x
383 (Fed. Cir. 2004) (“Patrick I”), and need only be sum-
marized here.
Mrs. Patrick’s husband, James Curtis Patrick (“Pat-
rick”), served on active duty in the United States Army
from August 1958 through May 1959, when he was dis-
charged due to rheumatic heart disease. Although Pat-
rick’s heart condition was not noted during the medical
examination he underwent prior to his entry into service,
subsequent in-service exams revealed heart abnormali-
ties.
On May 26, 1959, Patrick filed a claim seeking ser-
vice-connected benefits for rheumatic heart disease. The
Board of Veterans’ Appeals (“board”) denied his claim,
concluding that he had suffered from “many severe car-
3 PATRICK v. DVA
diac symptoms” prior to his induction into service. Pat-
rick subsequently filed several other claims seeking
service-connected benefits for his heart disability, but all
of these claims were denied.
On January 29, 1985, Patrick died of an acute myo-
cardial infarction. Soon thereafter, Mrs. Patrick filed an
application with the Department of Veterans Affairs
(“VA”) for dependency and indemnity compensation,
alleging that her husband had died as a result of service-
connected heart disease. See 38 U.S.C. § 1310 (authoriz-
ing benefits for the surviving spouse of a veteran who dies
from a service-connected disability). In a March 1986
decision, the board denied her claim, concluding that
Patrick’s rheumatic heart disease was incurred prior to
his military service and that “the clinical evidence in its
entirety fails to demonstrate that [Patrick’s] antecedent
rheumatic heart disease worsened during his short period
of active service.”
In 1992, Mrs. Patrick filed a claim to reopen the
board’s 1986 decision, arguing that it contained clear and
unmistakable error (“CUE”). She alleged that “if in fact
[her husband’s] heart condition existed prior to [his]
service . . . it worsened and was aggravated by service to
the point of his being found unfit for duty and eventually
discharge[d].” In 1999, however, the board denied Mrs.
Patrick’s request to reopen her claim, and this decision
was affirmed, in 2002, by the Veterans Court. See Patrick
v. Principi, No. 99-916, 2002 U.S. App. Vet. Claims LEXIS
979 (Vet. App. Aug. 13, 2002).
Mrs. Patrick then appealed to this court. She argued
that the presumption of soundness contained in 38 U.S.C.
§ 1111 can only be rebutted by clear and unmistakable
evidence that: (1) a disease or injury existed prior to
service; and (2) the disease or injury was not aggravated
PATRICK v. DVA 4
by service. See Patrick I, 103 F. App’x at 384. We agreed.
As we had recently explained in Wagner v. Principi, 370
F.3d 1089, 1096 (Fed. Cir. 2004), both the plain language
and legislative history of section 1111 make clear that the
presumption of soundness can only be rebutted by clear
and unmistakable evidence both that a condition existed
prior to service and that it was not aggravated by service.
See Patrick I, 103 F. App’x at 384-85. Because the gov-
ernment had failed to establish that Patrick’s rheumatic
heart disease was not aggravated by his military service,
we vacated the 2002 Veterans Court decision and re-
manded for reconsideration of Mrs. Patrick’s claim. Id. at
385.
On remand, however, the Veterans Court failed to re-
solve the issue of whether the government had proven by
clear and unmistakable evidence that Patrick’s rheumatic
heart disease was not aggravated during his active mili-
tary service. Instead, the court reaffirmed the 1999 board
decision denying Mrs. Patrick’s CUE claim on the alterna-
tive ground that this court’s interpretation of section
1111, which had been articulated in both Wagner and
Patrick I, should not be given retroactive effect in the
context of a CUE claim. See Patrick v. Nicholson, No. 99-
916, 2006 U.S. App. Vet. Claims LEXIS 39, at *26-
27 (Vet. App. Feb. 1, 2006) (“Patrick II”). In support, the
Veterans Court relied upon this court’s intervening deci-
sion in Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed.
Cir. 2005), which held that the VA’s recent interpretation
of 38 C.F.R. § 3.304, the implementing regulation for
section 1111, did not have retroactive application in a
CUE case. See Patrick II, 2006 U.S. App. Vet. Claims
LEXIS 39, at *26.
On appeal, this court reversed, concluding that the
decision of the Veterans Court was based upon a “mis-
reading of Jordan.” Patrick III, 242 Fed App’x at 697. We
5 PATRICK v. DVA
explained that “Jordan addressed whether a change in
the regulatory interpretation of a statute had retroactive
effect on CUE claims, not whether [this court’s] interpre-
tation of [a] statute . . . had retroactive effect on CUE
claims.” Patrick III, 242 Fed App’x at 697. In Jordan, the
question was whether retroactive effect should be given to
the VA’s determination that section 3.304(b) 1 , the imple-
menting regulation for section 1111, was invalid because
it was inconsistent with section 1111. See Jordan, 401
F.3d at 1298-99; Patrick III, 242 Fed App’x at 697-98. In
contrast, Mrs. Patrick’s claim did not involve the applica-
1 In 1999, when the board denied Mrs. Patrick’s
CUE claim, section 3.304(b) provided that the presump-
tion of soundness could be rebutted merely by providing
evidence that a particular injury or disease existed prior
to service:
The veteran will be considered to have been in
sound condition when examined, accepted and en-
rolled for service, except as to defects, infirmities,
or disorders noted at entrance into service, or
where clear and unmistakable (obvious or mani-
fest) evidence demonstrates that an injury or dis-
ease existed prior thereto. Only such
conditions as are recorded in examination reports
are considered as noted.
38 C.F.R. § 3.304(b) (as in effect prior to May 4, 2005).
In July 2003, prior to our decisions in Wagner and
Patrick I, the General Counsel of the VA issued an opin-
ion concluding that section 3.304(b) was invalid because it
was inconsistent with section 1111, which requires clear
and unmistakable evidence both that a condition existed
prior to service and that it was not aggravated by service.
See VA Op. Gen. Couns. Prec. 3-2003 (July 16, 2003),
available at http://www.va.gov /ogc/docs/PREC3-2003.doc
(“2003 VA General Counsel Opinion”); see also Wagner,
370 F.3d at 1092.
PATRICK v. DVA 6
tion of section 3.304, but was instead based directly on
section 1111:
The limited holding of Jordan does not apply to
Mrs. Patrick’s case, for she never argued that the
implementing regulation for § 1111 was invalid,
that the VA’s change in the interpretation of the
statute in its regulation was retroactive, or that
the 1986 Board erroneously applied the imple-
menting regulation. Indeed, the 1986 Board deci-
sion does not even refer to the implementing
regulation for § 1111.
Patrick III, 242 F. App’x at 698.
We made clear, moreover, that “[u]nlike changes in
regulations and statutes, which are prospective, our
interpretation of a statute is retrospective in that it
explains what the statute has meant since the date of
enactment.” Patrick III, 242 F. App’x at 698. Because we
concluded that the decision of the Veterans Court had
been “neither in accordance with the law nor with our
previous remand instructions,” we vacated the court’s
decision and again remanded for a determination of
whether the government could rebut section 1111’s pre-
sumption of soundness by providing clear and unmistak-
able evidence that Patrick’s rheumatic heart disease had
not been aggravated by his military service. Id.
The Veterans Court thereafter remanded Mrs. Pat-
rick’s claim to the board, which concluded that the gov-
ernment had failed to establish that Patrick’s heart
disease was not aggravated by his military service.
Accordingly, the board granted Mrs. Patrick’s claim for
dependency and indemnity compensation.
Mrs. Patrick then filed an application for attorney
fees and expenses under the EAJA. On June 29, 2009,
7 PATRICK v. DVA
the Veterans Court, in a single judge decision, denied
Mrs. Patrick’s application. The court subsequently issued
a reconsideration decision, which again denied Mrs.
Patrick’s application for an EAJA award. The court
stated that “when the statutory framework presents a
confusing tapestry, the Secretary can be substantially
justified in taking a position regardless of whether that
position later turns out to be wrong.” Patrick IV, 23 Vet.
App. at 515. The court determined, moreover, that be-
cause the VA’s position was supported by the court’s then-
existing precedent, it “had a reasonable basis in law and
fact.” Id. at 518. Mrs. Patrick filed a timely appeal to
this court.
DISCUSSION
We have jurisdiction over appeals from the Veterans
Court under 38 U.S.C. § 7292. Interpretation of the EAJA
is a question of law, subject to de novo review. Kelly v.
Nicholson, 463 F.3d 1349, 1352 (Fed. Cir. 2006). Al-
though this court’s jurisdiction over appeals from the
Veterans Court does not extend to challenges to factual
determinations or the application of a statute or regula-
tion to the facts of a particular case, see 38 U.S.C.
§ 7292(d), “[w]e have recognized . . . that where adoption
of a particular legal standard dictates the outcome of a
case based on undisputed facts, we may address that
issue as a question of law,” Halpern v. Principi, 384 F.3d
1297, 1306 (Fed. Cir. 2004). Thus, the issue of whether
the Veterans Court applied the correct legal standard in
evaluating whether the government’s position was “sub-
stantially justified” for purposes of the EAJA is a legal
determination that falls squarely within the scope of our
appellate jurisdiction. Smith v. Principi, 343 F.3d 1358,
1361 (Fed. Cir. 2003).
PATRICK v. DVA 8
The essential objective of the EAJA 2 is to ensure that
litigants “will not be deterred from seeking review of, or
defending against, unjustified governmental action be-
cause of the expense involved.” Scarborough v. Principi,
541 U.S. 401, 407 (2004) (citations and internal quotation
marks omitted). The statute plays a particularly impor-
tant role in the uniquely pro-claimant system for adjudi-
cating veterans’ claims:
Removing [deterrents to seeking judicial review]
is imperative in the veterans benefits context,
which is intended to be uniquely pro-claimant,
and in which veterans generally are not repre-
sented by counsel before the [regional office] and
the board. [The] EAJA is a vital complement to
this system designed to aid veterans, because it
helps to ensure that they will seek an appeal
when the VA has failed in its duty to aid them or
has otherwise erroneously denied them the bene-
fits that they have earned.
Kelly, 463 F.3d at 1353 (citations omitted).
2 In relevant part, the EAJA provides:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and other ex-
penses, in addition to any costs awarded pursuant
to subsection (a), incurred by that party in any
civil action (other than cases sounding in tort), in-
cluding proceedings for judicial review of agency
action, brought by or against the United States in
any court having jurisdiction of that action, unless
the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
9 PATRICK v. DVA
Under the EAJA, a prevailing party in litigation
against the government is entitled to recover reasonable
attorney fees and expenses “unless the court finds that
the position of the United States was substantially justi-
fied or that special circumstances make an award unjust.”
28 U.S.C. § 2412(d)(1)(A). The government bears the
burden of establishing that its position was substantially
justified. Doty v. United States, 71 F.3d 384, 385 (Fed.
Cir. 1995). The term “substantially justified” means that
the government’s position was “justified in substance or in
the main,” and had a “reasonable basis both in law and
fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(citations and internal quotation marks omitted). The
“position” of the government includes actions taken at the
agency level as well as arguments made during litigation.
Smith, 343 F.3d at 1361-62; see also Comm’r, Immigration
& Naturalization Serv. v. Jean, 496 U.S. 154, 161-62
(1990) (“Any given civil action can have numerous phases.
While the parties’ postures on individual matters may be
more or less justified, the EAJA—like other fee-shifting
statutes—favors treating a case as an inclusive whole,
rather than as atomized line-items.”).
I.
The government can establish that its position was
substantially justified if it demonstrates that it adopted a
reasonable, albeit incorrect, interpretation of a particular
statute or regulation. See Pierce, 487 U.S. at 566 n.2
(emphasizing that an erroneous position could be sub-
stantially justified “if a reasonable person could think it
correct”). Where, however, the government interprets a
statute in a manner that is contrary to its plain language
and unsupported by its legislative history, it will prove
difficult to establish substantial justification. See Role
Models Am., Inc. v. Brownlee, 353 F.3d 962, 967 (D.C. Cir.
2004) (concluding that the government’s position was not
PATRICK v. DVA 10
substantially justified where “it was wholly unsupported
by the text of the applicable regulations” (citations and
internal quotation marks omitted)); Halverson v. Slater,
206 F.3d 1205, 1212 (D.C. Cir. 2000) (holding that the
government’s position was not substantially justified
where it was contrary to “the easily ascertainable plain
meaning of” a statute); Marcus v. Shalala, 17 F.3d 1033,
1038 (7th Cir. 1994) (concluding that the government’s
position was not substantially justified where it was
“manifestly contrary to the [controlling] statute” (citations
and internal quotation marks omitted)); Or. Natural Res.
Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992)
(holding that the government’s position was not substan-
tially justified where it was contrary to the “clear” lan-
guage of a statute and its legislative history).
Here, the VA denied Mrs. Patrick’s claim for depend-
ency and indemnity compensation based upon an inter-
pretation of section 1111 that was contravened by both
the statute’s plain language and its legislative history.
Section 1111 provides:
[E]very veteran shall be taken to have been in
sound condition when examined, accepted, and
enrolled for service, except as to defects, infirmi-
ties, or disorders noted at the time of the exami-
nation, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the
injury or disease existed before acceptance and en-
rollment and was not aggravated by such service.
38 U.S.C. § 1111 (emphasis added).
The VA interpreted this provision to mean that the
presumption of soundness could be rebutted by evidence
that an injury or disease preexisted service, irrespective of
whether there was clear and unmistakable evidence that
the condition was not aggravated by service. As we
11 PATRICK v. DVA
explained in Wagner, 370 F.3d at 1093, however, section
1111, on its face, requires that the presumption of sound-
ness can be rebutted only by clear and unmistakable
evidence that a preexisting condition was not aggravated
by service. Indeed, while Wagner was pending in this
court, the General Counsel of the VA issued an opinion
acknowledging that “[t]he plain language of [section 1111]
provides that the presumption of soundness is rebutted
only if clear and unmistakable evidence establishes both
that (1) the condition existed prior to service and (2) the
condition was not aggravated by service.” 2003 VA Gen.
Counsel Op. 2.
The government points to nothing in the legislative
history of section 1111 which could reasonably support
the VA’s original determination that the presumption of
soundness could be rebutted even absent clear and unmis-
takable evidence that a veteran’s preexisting disability
was not aggravated by service. To the contrary, the
relevant legislative history makes clear that the VA’s
original interpretation of the statute was incorrect. In
Wagner, we reviewed the legislative history of section
1111 3 in detail and concluded that Congress specifically
intended “that a presumption of soundness would apply,
even when there was evidence of a preexisting condition,
if the government failed to show by clear and unmistak-
able evidence that a veteran’s preexisting condition was
not aggravated.” 370 F.3d at 1096. 4
3 Section 1111’s presumption of soundness standard
was previously codified at 38 U.S.C. § 311. See Dep’t of
Veterans Affairs Codification Act, Pub. L. No. 102-83,
§ 5(a), 105 Stat. 378, 406 (1991).
4 Under a 1924 statute, the World War Veterans’
Act, ch. 320, § 200, 43 Stat. 607, 615 (1924), a veteran was
conclusively presumed to be in sound condition, except as
PATRICK v. DVA 12
II.
On appeal, the government does not dispute that the
VA’s original interpretation of section 1111 was unsup-
ported by either the statute’s plain language or its legisla-
tive history. The government argues, however, that the
Veterans Court correctly determined that the VA’s posi-
tion was substantially justified because that position was
supported by that court’s then-existing precedent. 5
to the conditions and infirmities noted at the time of his
induction into service. See Wagner, 370 F.3d at 1094. In
1934, however, Congress enacted a new statute, applica-
ble to veterans of World War I, which provided that a
veteran was presumed to be in sound condition at induc-
tion into service, but that the presumption could be rebut-
ted by clear and convincing evidence that a veteran’s
condition or injury: (1) existed prior to his military ser-
vice; and (2) was not aggravated by that service. See
Independent Offices Appropriation Act, ch. 102, § 27, 48
Stat. 509, 524 (1934) (the “1934 Act”). Subsequently,
Congress became concerned that World War II veterans—
to whom the 1934 Act did not apply—were unjustifiably
being denied benefits. See Wagner, 370 F.3d at 1095. It
therefore passed legislation, in 1943, which specifically
stated that the VA could only rebut the presumption of
soundness if it provided clear and unmistakable evidence
that a claimant’s preexisting condition was not aggra-
vated by his military service. Id. at 1095-96 (citing S.
Rep. No. 78-403, at 2, 6 (1943)).
5 Mrs. Patrick argues that the position of the gov-
ernment was not substantially justified because the 1999
board decision denying her claim erroneously applied the
presumption of aggravation under 38 U.S.C. § 1153,
rather than the presumption of soundness under section
1111. We disagree. As the Veterans Court correctly
noted, “[a] review of the 1999 Board decision reveals an
analysis clearly focused on whether there existed clear
and unmistakable evidence that the disability at issue,
which was not noted on Mr. Patrick’s service entry ex-
13 PATRICK v. DVA
We do not find this reasoning persuasive. We have
repeatedly made clear that the substantial justification
inquiry requires an analysis of the “totality of the circum-
stances” surrounding the government’s adoption of a
particular position. Smith, 343 F.3d at 1362; Essex Elec-
tro Eng’rs, Inc. v. United States, 757 F.2d 247, 253 (Fed.
Cir. 1985); Bailey v. United States, 721 F.2d 357, 360
(Fed. Cir. 1983). Here, although the Veterans Court
acknowledged this “totality of circumstances” standard, it
improperly focused on only one factor—the fact that the
court itself had previously upheld the VA’s erroneous
interpretation of section 1111—in denying Mrs. Patrick’s
EAJA application. See Patrick IV, 23 Vet. App. at 516
(concluding that the government’s position at the admin-
istrative stage had been substantially justified because it
was supported by “then-existing precedent established by
[the] VA and upheld by [the Veterans Court] concerning
rebutting the presumption [of soundness] under section
1111”); id. at 518 (concluding that the government’s
position at the litigation stage had “a reasonable basis in
law and fact” because it “followed established [Veterans
Court] precedent”).
Whether or not the position adopted by the govern-
ment comports with then-existing precedent on a particu-
lar issue is an undeniably important factor in the
assessment of whether that position was substantially
justified. See White v. Nicholson, 412 F.3d 1314, 1316-17
(Fed. Cir. 2005); Owen v. United States, 861 F.2d 1273,
1274 (Fed. Cir. 1988) (en banc). The fact that the Veter-
ans Court had previously upheld the VA’s erroneous
interpretation of section 1111 does not, however, resolve
amination form, preexisted service, an analysis that
would not have been necessary if the Board were applying
[the presumption of aggravation under] section 1153.”
Patrick IV, 23 Vet. App. at 517.
PATRICK v. DVA 14
the substantial justification inquiry. Pierce, 487 U.S. at
569 (“Obviously, the fact that one other court agreed or
disagreed with the Government does not establish
whether its position was substantially justified.”); Essex,
757 F.2d at 253 (rejecting the “single-factor approach” to
determining whether the government’s position was
substantially justified). “[T]he position of the United
States is not shown to have been substantially justified
merely because the government prevailed before the
tribunal below,” for “[i]f that were the rule, attorney’s fees
never could be awarded in favor of an appellant against
the government.” Broad Ave. Laundry & Tailoring v.
United States, 693 F.2d 1387, 1392 (Fed. Cir. 1982); Cmty.
Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1145
(Fed. Cir. 1993) (concluding that the government’s posi-
tion was not substantially justified even where the Armed
Services Board of Contract Appeals had found that posi-
tion “convincing”); see also Role Models, 353 F.3d at 967
(holding that the government’s position was not substan-
tially justified notwithstanding the fact that it had been
accepted by the district court); Marcus, 17 F.3d at 1037-38
(concluding that where the government’s position was
directly contrary to the plain language of the controlling
statute, it was not substantially justified even where it
had been accepted by courts in other circuits).
“The totality of the circumstances, by its very descrip-
tion, does not exclude any valid issue from consideration.”
White, 412 F.3d at 1317; see also Essex, 757 F.2d at 253.
Here, however, the Veterans Court rejected Mrs. Patrick’s
EAJA application without considering all of the pertinent
factors surrounding the government’s erroneous denial of
her claim for dependency and indemnity compensation.
In particular, the court did not discuss, and apparently
did not consider, the fact that the government had
adopted an interpretation of section 1111 that was wholly
15 PATRICK v. DVA
unsupported by either the plain language of the statute or
its legislative history. 6 Cf. Fed. Election Comm’n v.
Political Contributions Data, Inc., 995 F.2d 383, 387 (2d
Cir. 1993) (emphasizing that “[i]t would be hard to imag-
ine how it could be held that one had been ‘substantially
justified’ in defying the will of Congress” by interpreting a
statute in a manner contrary to its plain language and
legislative history). While resolution of the question of
whether to award attorney fees “should not result in a
second major litigation,” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983), a determination as to whether the gov-
ernment’s position was substantially justified requires a
thorough evaluation of the legal and factual support for
the position that it adopted, Chiu v. United States, 948
F.2d 711, 715 (Fed. Cir. 1991). In short, a court is re-
quired “to look at the entirety of the government’s con-
duct,” including the agency actions that gave rise to the
litigation, “and make a judgment call whether the gov-
ernment’s overall position had a reasonable basis in both
law and fact.” Id. (footnote omitted). We therefore re-
6 Nor did the Veterans Court fully assess the ques-
tion of whether the government was substantially justi-
fied in arguing, following our decisions in Wagner, 370
F.3d at 1094-96, and Patrick I, 103 F. App’x at 384-85,
that this court’s interpretation of section 1111 did not
apply retroactively in the context of a CUE claim. We
soundly rejected this argument in Patrick III, where we
explained that “[u]nlike changes in regulations and
statutes, which are prospective, our interpretation of a
statute is retrospective in that it explains what the stat-
ute has meant since the date of enactment.” 242 F. App’x
at 698. We emphasized, moreover, that “our interpreta-
tion of § 1111 . . . did not change the law but explained
what § 1111 has always meant,” and should therefore be
applied to Mrs. Patrick’s claim alleging CUE in the
board’s previous decision denying her application for
dependency and indemnity benefits. Id.
PATRICK v. DVA 16
verse the judgment of the Veterans Court and remand for
a determination of whether, in light of the totality of the
circumstances, the government carried its burden of
demonstrating that its position was substantially justi-
fied.
CONCLUSION
Accordingly, the judgment of the United States Court
of Appeals for Veterans Claims is reversed and the case is
remanded for further proceedings in accordance with this
opinion.
COSTS
The appellant shall have her costs.
REVERSED AND REMANDED