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 United States Court of Appeals for the Federal Circuit

                                      05-7057

                              DEBORAH J. JACKSON,

                                                    Claimant-Appellant,

                                          v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                    Respondent-Appellee.



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

       Hillary A. Stern, Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Bryant G. Snee, Assistant Director. Of counsel on the brief were Richard
J. Hipolit, Assistant General Counsel, and Joshua S. Blume, Attorney, United States
Department of Veterans Affairs, of Washington, DC. Of counsel were Franklin E. White,
Jr., Assistant Director, Commercial Litigation Branch, Civil Division, Department of
Justice, of Washington, DC, and Y. Ken Lee, 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.
United States Court of Appeals for the Federal Circuit

                                     05-7057

                            DEBORAH J. JACKSON,

                                                Claimant-Appellant,

                                        v.

             R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                Respondent-Appellee.

                         __________________________

                         DECIDED: December 30, 2005
                         __________________________


Before MICHEL, Chief Judge, LOURIE and LINN, Circuit Judges.

LOURIE, Circuit Judge.

      Deborah J. Jackson (“Jackson”) appeals from the decision of the United

States Court of Appeals for Veterans Claims (the “Veterans Court”) affirming the

Board of Veterans’ Appeals (the “Board”) denial of her claim for benefits.

Jackson v. Principi, No. 01-1965 (Vet. App. Aug. 10, 2004).           Because the

Veterans Court erred in its interpretation of 38 U.S.C. § 1151, we reverse.

                                 BACKGROUND

      Jackson served in the United States Air Force from July 1974 to

November 1978. In February 1993, she was hospitalized at a VA medical center

for physical therapy and treatment for chronic pain. While admitted, she was

verbally and physically assaulted twice by a male patient.       In August 1995,

Jackson filed a claim at the VA Regional Office (“RO”) for service-connected
benefits for post-traumatic stress disorder (“PTSD”) caused by the assaults. In

September 1996, the RO denied her claim, determining that there were no in-

service PTSD stressors.           In November 1996, Jackson sent a notice of

disagreement to the RO, clarifying that her claim was based on 38 U.S.C.

§ 1151, which allows for compensation to a veteran for an injury that occurs “as

the result of hospitalization.”    In October 1997, the RO issued a supplemental

statement concluding that Jackson was not entitled to compensation under

§ 1151 because there was no medical evidence that the assault aggravated her

preexisting PTSD.

       Jackson appealed to the Board, which denied her claim for compensation

under § 1151 as a matter of law. The Board relied on precedent purportedly

establishing that § 1151 authorizes compensation for a disability resulting from

medical treatment or examination itself, but not for a disability from an intervening

cause such as a sexual assault.        According to the Board, because Jackson’s

PTSD resulted from an assault by another patient, which was an intervening

cause during hospitalization, not from treatment or examination rendered by the

VA, her claim did not fall within the statute. Jackson appealed from the Board’s

decision, arguing that the Board misinterpreted § 1151. However, the Veterans

Court held that the Board did not commit legal error in determining that Jackson’s

PTSD was not the result of any VA action. The Veterans Court relied on its

precedent, Sweitzer v. Brown, which held that the injury must have resulted from

actions by VA, not from “disabilities that are merely coincidental with the receipt

of VA treatment.” 5 Vet. App. 503, 506 (1996). The Veterans Court reasoned




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that the claimed PTSD was not the result of any treatment furnished by the VA

and therefore Jackson was not entitled to compensation under § 1151.

       Jackson timely appealed, and we have jurisdiction pursuant to 38 U.S.C.

§ 7292(a).

                                   DISCUSSION

       The scope of our review of a Veterans Court’s decision is limited by

statute. 38 U.S.C. § 7292.       Under § 7292(d), we “shall decide all relevant

questions of law, including interpreting constitutional and statutory provisions.”

38 U.S.C. § 7292(d)(1) (2002). This court reviews the Veterans Court’s

interpretation of 38 U.S.C. § 1151 de novo. Gardner v. Brown, 5 F.3d 1456,

1458 (Fed. Cir. 1993).     However, “[e]xcept 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 facts of a particular case.” 38 U.S.C. § 7292(d)(2).

       The key phrase in the interpretation of the statute here is “as the result of

hospitalization.” The statute in effect at the time Jackson’s injuries occurred, 38

U.S.C. § 1151, provided for compensation to veterans who were injured by VA

hospitalization or medical treatment.1 It stated in pertinent part:

          Where any veteran shall have suffered an injury, or an aggravation of
       an injury, as the result of hospitalization, medical or surgical treatment, or
       the pursuit of a course of vocational rehabilitation . . ., awarded under any
       laws administered by the Secretary, or as a result of having submitted to
       an examination under any such law, and not the result of such veteran’s

       1
              Section § 1151 was amended while Jackson’s claim was
              pending before the agency. Because her claim was filed
              before October 1, 1997, the effective date of the
              amendment, the pre-amendment language controls.


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      own willful misconduct, and such injury or aggravation results in additional
      disability to or the death of such veteran, disability or death compensation
      under this chapter . . . shall be awarded in the same manner as if such
      disability, aggravation, or death were service-connected.

38 U.S.C. § 1151 (1994) (emphasis added).

       On appeal, Jackson asserts that the Veterans Court misinterpreted the

word “hospitalization” in § 1151 as being limited to instances of direct interaction

with VA personnel, instead of including all events occurring during the veteran’s

stay at the VA facility. According to Jackson, the Veterans Court found that

“actions by VA” are a prerequisite for § 1151 compensation, but there is no

support in the statute for that limitation. Moreover, Jackson contends that the

Supreme Court in Brown v. Gardner, 513 U.S. 115 (1994), established that the

language “as the result of” means that there must have been a causal connection

between the “injury” and “hospitalization,” not that there must have been VA

action. Id. at 119. Jackson asserts that the causal connection is established here

because she would not have been injured if it were not for her “hospitalization.”

       The Secretary of Veterans Affairs (the “Secretary”) responds that the

Veterans Court’s decision was not based on the interpretation of the word

“hospitalization,” but rather on the phrase “as the result of hospitalization.”

Furthermore, the Secretary argues that the phrase “as the result of” requires a

“causal connection,” and that the Court in Brown v. Gardner implied that there

must be some form of VA action in order for compensation to be awarded under

§ 1151. 513 U.S. at 119 n.3. According to the Secretary, the legislative history

of § 1151 supports an interpretation that the VA must act in some manner to

cause an injury. The Secretary also asserts that the phrase “as the result of”



05-7057                                  4
cannot have the same meaning as “during,” and that Jackson’s interpretation of §

1151 would provide compensation to any victim injured at a VA hospital, rather

than only to those victims whose injuries were caused by VA actions in the

course of providing hospitalization. Lastly, the Secretary asserts that the assault

occurred coincident with VA hospitalization and did not result from or was not

caused by the VA hospitalization itself. Rather, according to the Secretary, the

assault was an intervening cause of Jackson’s disability, taking it outside the

compass of the statute.

      We agree with Jackson that the phrase “as the result of hospitalization,”

which was the language in § 1151 at the time of Jackson’s injuries, does not

require that the injuries have been caused by actions of the VA. This court and

the Supreme Court have had occasion to consider the language of § 1151

previously. See Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff’d, Brown v.

Gardner, 513 U.S. 115 (1994). In Gardner v. Brown, we determined that VA fault

or negligence is not required for entitlement to compensation under § 1151. 5

F.3d at 1456.     Furthermore, we stated that the phrase “as the result of”

“mandates only a causation requirement.” 5 F.3d at 1459. We noted that under

§ 1151, the requirements for compensation are only that the specified treatment

“must cause the injury or the aggravation of injury. And willful misconduct of the

veteran may not be a cause of the injury or aggravation.” Id. The Supreme Court

agreed, stating that the phrase “as the result of” is “read simply to impose the

requirement of a causal connection between the ‘injury’. . . and ‘hospitalization’”

and does not incorporate a fault requirement. Brown v. Gardner, 513 U.S. at




05-7057                                 5
119. Therefore, in order to recover under § 1151, the word “result” only implies a

causal connection, not fault, although the injury cannot result from the veteran’s

own willful misconduct.

       The question whether there was or was not fault is not at issue in this

case; the issue is whose fault, or which cause was involved. We conclude that

the fact that a causal connection is required for compensation does not mean

that the cause must be VA personnel.            The statute does not contain that

limitation. The word “hospitalization” is a term of status; one is hospitalized when

one is in the hospital. And an injury is caused as a result of hospitalization when

it occurs when one is in the hospital.

       The remainder of the statutory language of § 1151 also aids our

understanding of the definition of the word “hospitalization.” The statute allows

for compensation for injuries resulting from “hospitalization, medical or surgical

treatment, or the pursuit of a course of vocational rehabilitation.”        Whereas

medical and surgical treatment involve direct involvement with VA staff,

hospitalization need not be related to any treatment, but rather is related to the

circumstance of being hospitalized.           If Congress had intended the word

“hospitalization” to be limited to actions of the VA, it would be partially redundant,

as most hospital injuries are incurred through VA medical or surgical treatment.

The word “hospitalization” thus must mean something more than actions of the

VA.   Because the statute specifically distinguishes between situations that

involve medical treatment and those that do not, and it allows for recovery under




05-7057                                   6
both situations, we cannot limit the word “hospitalization” to only those conditions

that involve medical treatment by the VA.

         The history of this statute also suggests that the word “hospitalization”

must be afforded a broader meaning than merely acts by the VA. Congress

amended the statute in 1997 and changed the word “hospitalization” to “hospital

care.”    It can be reasonably inferred from this amendment that Congress

understood the earlier statute to mean something more than hospital care when it

used the term “hospitalization.” The term “hospital care” implies the provision of

care by the hospital specifically, as opposed to the broader, more general

experience of a patient during the course of hospitalization. The word

“hospitalization,” therefore, cannot be limited only to treatment or examination

rendered by the VA, as suggested by the Board, but instead encompasses

events that occur during a stay at a hospital.

         The Board’s decision, which the Veterans Court affirmed, focuses on the

concept of an “intervening cause” and states that there can be no compensation

under the statute where the disability is due “to such intervening causes as a

sexual assault or another intentional tort.” The Board rejected Jackson’s claim

because it deemed the assault to be an intervening cause, which precluded VA

liability. The Secretary argues the same point.

         We disagree that an “intervening cause” takes the injury out of the scope

of protection afforded under § 1151.    An “intervening cause” does not preclude

liability where there exists a causal connection between the hospitalization and

the injury. The statute uses broad language and allows for compensation any




05-7057                                  7
time there has been an injury that results from “hospitalization.” The fact that an

intervening cause may mean that the injury was not the result of VA action does

not mean that it was not “as the result of hospitalization.” The injury here would

not have occurred if there had not been hospitalization; it was therefore a result

of the hospitalization. It is true that common law courts may have held that an

intervening act precludes liability in certain tort situations. See, e.g., Edwards v.

Tardif, 692 A.2d 1266 (Conn. 1997) (noting that suicide constitutes an

independent intervening cause precluding liability in a tort claim); Looney v.

Davis, 721 So. 2d 152 (Ala. 1998) (stating that a superseding intervening cause

may break the chain of causation). However, we are interpreting a statute here,

and it is not for us to legislate beyond the plain meaning of the statute.

       The Board and the Veterans Court cited Sweitzer to support their

conclusion that § 1151 does not cover injuries involving intervening causes, or

injuries that are not the result of VA action. We are not of course bound by

decisions of the Veterans Court. Moreover, we do not believe that Sweitzer is

analogous to this case or provides the necessary support for the Veterans

Court’s determination that Jackson’s injury did not result from her hospitalization.

In Sweitzer, a veteran checked into a VA medical center and left the clinic area.

5 Vet. App. at 504. While reading an advertisement on a bulletin board at the

intersection of two corridors, a patient in a motorized wheelchair turned a corner

and struck the veteran, injuring him. Id. The statutory phrase at issue under

§ 1151 in that case was “having submitted to an examination.” The Veterans

Court determined that because the injury did not result from the examination




05-7057                                   8
itself, but rather from an incident that occurred before the process of reporting for

the examination, the injury did not result from “having submitted to an

examination.” Id. at 505. The court then reasoned that the “statute does not

address disabilities that are merely coincidental with the receipt of VA treatment,”

implying that being struck while reading an advertisement is merely coincidental

to an examination. Id.    Sweitzer did not look at the phrase “as the result of” in

terms of causation, but rather focused on whether the particular facts

demonstrated that the injury occurred after or before the patient had “submitted

to an examination.” That is not the case here, where it is undisputed that the

injury occurred during “hospitalization.” Sweitzer is therefore not decisive of this

appeal.

       The Secretary argues that the Supreme Court in Brown v. Gardner implied

that some kind of VA action must have been the cause of any injury to entitle a

veteran to compensation, citing a footnote stating, “VA action is not the cause of

the disability in [incidents of a disease’s or injury’s natural progression, occurring

after the date of treatment] situations.” 513 U.S. at 119 n.3. We do not interpret

that footnote as shedding light on the issue before us, as that case dealt with

whether the statute required fault by the VA, and the point of the footnote related

to remote consequences of an injury. This case does not raise the issue of

whether fault by VA was required under the statute.

                                   CONCLUSION

       In sum, because the Veterans Court failed to give the phrase “as the result

of hospitalization” its full meaning to include all injuries occurring as a result of




05-7057                                   9
the veteran being hospitalized, we reverse the Veterans Court’s conclusion of no

liability and remand the case for further proceedings consistent with this opinion.

                                   REVERSED.




05-7057                                 10
