                        Note: This disposition is nonprecedential.

   United States Court of Appeals for the Federal Circuit

                                       2006-7254



                                 CAROLYN J. PATRICK,

                                                     Claimant-Appellant,

                                            v.


                  R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                     Respondent-Appellee.


      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant appellant.

       Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With him on the brief were Peter D. Keisler, Assistant Attorney General, and William F.
Ryan, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy
Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department
of Veterans Affairs, of Washington, DC.


Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2006-7254



                               CAROLYN J. PATRICK,

                                                      Claimant-Appellant,

                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.


                           __________________________

                              DECIDED: June 14, 2007
                           __________________________



Before MICHEL, Chief Judge, MAYER and GAJARSA, Circuit Judges.

MICHEL, Chief Judge.

      Carolyn J. Patrick appeals the decision of the Court of Appeals for Veterans

Claims (“Veterans Court”) affirming on remand a May 6, 1999 Board of Veterans’

Appeals (“Board”) decision holding that there was no clear and unmistakable error

(“CUE”) in a 1986 Board decision that denied her claim for dependency and indemnity

compensation (“DIC”). Patrick v. Nicholson, 2006 U.S. App. Vet. Claims LEXIS 39, No.

99-916 (Vet. App. Feb. 1, 2006) (“Remand Decision”). Because the Veterans Court

failed to follow our remand instructions, we vacate and remand for further proceedings.
                                  I.   BACKGROUND

      This is the second time this case is before us.         The underlying facts are

well-summarized by the two opinions below and will not be set forth in similar detail

here. See Remand Decision; Patrick v. Principi, 103 F. App’x 383 (Fed. Cir. 2004).

Briefly, James Curtis Patrick served on active duty in the Army from August 1958 to

May 1959, when he was discharged after being diagnosed with a heart disease that had

existed prior to service. Although Mr. Patrick’s entrance medical examination showed

no abnormalities, subsequent exams revealed his medical condition. Mr. Patrick filed a

series of unsuccessful claims for service-connection up until his death by myocardial

infarction on January 29, 1985.

      In February 1985, Mr. Patrick’s widow, Carolyn J. Patrick, filed a claim for DIC

benefits based on his rheumatic heart disease. In 1986, the Board denied her claim

after concluding from its analysis of the evidence of the preexistence of Mr. Patrick’s

heart disease that the presumption of soundness under 38 U.S.C. § 311 (now § 1111)

had been rebutted. 1 This decision was not directly appealed to the Veterans Court.

      In September 1992, Mrs. Patrick sought to reopen her claim by arguing that there

was CUE in the 1986 Board decision based on, inter alia, the Board’s alleged

misapplication of the presumption of soundness under § 1111. In 1999, the Board

denied Mrs. Patrick’s request to revise the 1986 Board decision after concluding that

there was no CUE in the 1986 decision. In 2002, the Veterans Court affirmed the 1999

Board decision.



      1
              Under 38 U.S.C. § 1137 (formerly § 337), the presumption of soundness
under 38 U.S.C. § 1111 applies to veterans like Mr. Patrick who served in active military
service after December 31, 1946.
2006-7254                                  2
       Mrs. Patrick filed a first appeal with us contending that the rebuttal of the

presumption of soundness under 38 U.S.C. § 1111 required clear and unmistakable

evidence of both (1) the pre-service existence of an injury or disease and (2) no in-

service aggravation of the injury or disease. Mrs. Patrick argued that the Veterans

Court’s interpretation, requiring only the first prong to rebut the presumption of

soundness, was erroneous.       She did not, however, challenge the Veterans Court’s

ruling that the 1999 Board decision correctly found no CUE in its determination that

Mr. Patrick’s heart condition preexisted service.

       Relying on Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (construing

38 U.S.C. § 1111 as requiring clear and unmistakable evidence of both the preexistence

of a condition and no in-service aggravation of that condition), we held that the

government must show by clear and unmistakable evidence that Mr. Patrick’s disease

was not aggravated by his service in order to rebut the presumption of soundness.

Patrick, 103 F. App’x at 385.      Accordingly, we vacated the 2002 Veterans Court

decision and remanded for further consideration of Mrs. Patrick’s CUE claim using the

correct standard articulated in Wagner. Id.

       On remand, the Veterans Court did not determine whether the government had

proven by clear and unmistakable evidence that Mr. Patrick’s disease was not

aggravated by his service.      Instead, the Veterans Court affirmed the 1999 Board

decision on the alternative ground that Wagner was not retroactive in view of this court’s

intervening decision in Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005).         See

Remand Decision at *26. This second appeal timely followed. We have jurisdiction

pursuant to 38 U.S.C. § 7292.



2006-7254                                     3
                                 II.    DISCUSSION

       We review legal determinations, in this case the Veterans Court’s interpretation

of Jordan, de novo. Meeks v. West, 216 F.3d 1363, 1366 (Fed. Cir. 2000) (citing 38

U.S.C. § 7292); see also Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998) (citing

Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991)). In interpreting § 1111, we

held

       [w]hen no preexisting condition is noted upon entry into service, the
       veteran is presumed to have been sound upon entry. The burden then
       falls on the government to rebut the presumption of soundness by clear
       and unmistakable evidence that the veteran's disability was both
       preexisting and not aggravated by service.

Wagner, 370 F.3d at 1096.      However, based on its interpretation of Jordan, which

issued after our remand decision, the Veterans Court held that “the presumption-of-

soundness interpretation articulated in Wagner, supra, does not have retroactive

application in a CUE case.” Remand Decision at *26. This is a misreading of Jordan.

Jordan addressed whether a change in the regulatory interpretation of a statute had

retroactive effect on CUE claims, not whether our interpretation of the statute in Wagner

had retroactive effect on CUE claims.

       More specifically, during the pendency of Mr. Jordan’s appeal of the Board’s

denial of his CUE claim at the Veterans Court, the General Counsel for the Department

of Veterans Affairs (“VA”) issued an opinion holding that 38 C.F.R. § 3.304, the

implementing regulation for § 1111, conflicted with the statute. 2 Jordan, 401 F.3d at

1297. On appeal before us, Mr. Jordan argued that the subsequent invalidation of the

       2
             Although § 1111 requires clear and unmistakable evidence of both the
preexistence of a condition and the in-service aggravation of the condition for the
government to rebut the presumption of soundness, 38 C.F.R. § 3.304(b), prior to the
VA opinion, omitted the latter requirement.
2006-7254                                  4
regulation by the VA had retroactive effect, thereby making the regulation void ab initio.

Id. Citing the implementing regulation for the CUE statute, 38 C.F.R. § 20.1403(e),

which provides that CUE “does not include the otherwise correct application of a statute

or regulation where, subsequent to the Board decision challenged, there has been a

change in the interpretation of the statute or regulation,” we held that “CUE does not

arise from a new regulatory interpretation of a statute.” Jordan, 401 F.3d at 1298-99.

       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 implementing regulation. Indeed, the 1986 Board decision does

not even refer to the implementing regulation for § 1111.

       Instead, in her first appeal before us, Mrs. Patrick contended the 1986 Board

misapplied § 1111, which can serve as the basis for grounding a CUE claim. See 38

C.F.R. § 20.1403(a) (providing as an example of CUE the incorrect application of

“statutory and regulatory provisions extant at the time” of the Board decision). Thus, per

Mrs. Patrick’s argument, there was no “otherwise correct application of a statute” by the

1986 Board to invoke 38 C.F.R. § 20.1403(e)’s proscription against CUE under this

circumstance.

       Unlike 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. See Rivers v. Roadway Express, 511 U.S. 298, 312-13

(1994) (“A judicial construction of a statute is an authoritative statement of what the

statute meant before as well as after the decision of the case giving rise to that



2006-7254                                   5
construction.”). Thus, our interpretation of § 1111 in Wagner did not change the law but

explained what § 1111 has always meant. Certainly, it was not a change by the VA of

its regulation interpreting a statute. That is all Jordan, correctly understood, settled.

       We therefore conclude that the 2006 Veterans Court decision is neither in

accordance with the law nor with our previous remand instructions.            Therefore, we

vacate and remand the decision below.             On remand, the Veterans Court shall

reconsider Mrs. Patrick’s CUE claim and, if necessary, remand to the Board for a

determination of whether the government has rebutted the presumption of soundness

under § 1111 by providing clear and unmistakable evidence of no in-service aggravation

of Mr. Patrick’s heart disease.

                                   III.   CONCLUSION

       For the aforementioned reasons, we vacate the 2006 Veterans Court decision

and remand for further proceedings consistent with this opinion.




2006-7254                                     6
