John McBurney v. Eric K. Shinseki , 2009 U.S. Vet. App. LEXIS 1604 ( 2009 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-4015
JOHN MCBURNEY , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued June 24, 2009 Decided September 10, 2009)
Mark J. McBurney, of Pawtucket, Rhode Island, was on the briefs for the appellant.
Jeffrey J. Schueler, with whom John H. Thompson, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Brian B. Rippel, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before KASOLD, DAVIS, and SCHOELEN, Judges.
DAVIS, Judge: U.S. Army veteran John F. McBurney appeals through counsel from a July
17, 2008, Board of Veterans' Appeals (Board) decision that denied his claim for recognition as a
former prisoner of war (POW) for VA-benefits purposes. This appeal is timely, and the Court has
jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the
following reasons, the Court will affirm the July 2008 Board decision.
I. BACKGROUND
The parties do not dispute the facts pertinent to this appeal. Mr. McBurney served on active
duty from June 1943 to January 1946. One morning in 1944, his company was on patrol in an effort
to recapture French territory from German forces. Mr. McBurney's patrol commander ordered him
to leave his weapon behind, go to a nearby meadow, and take as prisoner three armed enemy soldiers
whom the commander believed were seeking to surrender. Mr. McBurney went unarmed to the
meadow as ordered, and after advising the German soldiers that he would take their surrender, the
soldiers communicated that they did not wish to surrender; instead, they relayed to Mr. McBurney
that he was their prisoner. After further discussion, a German soldier took hold of Mr. McBurney,
but the veteran wrestled away, diving behind a tree stump as a German soldier fired at him. A U.S.
soldier fired a warning shot. After dusk, several U.S. soldiers approached Mr. McBurney, and he
was rescued.
Before the Court, Mr. McBurney argues that the events of that day rendered him a POW, and
the Board decision erred in determining otherwise. He contends that the Board overlooked and
overturned six prior favorable VA findings, including three RO "stipulations" that he was "forcibly
detained," and that the Board impermissibly reconsidered that issue, already resolved either by the
parties or by VA. He further argues that the Board gave insufficient weight to buddy statements, and
did not properly explain its denial of reconsideration. Appellant's Brief (Br.) at 5-8, 13-14.
In response, the Secretary contends that the Board correctly interpreted the applicable statute
to determine that Mr. McBurney was not a former POW. He further argues that the Board, as VA's
ultimate finder of fact, is not bound by VA regional office (RO) determinations or stipulations made
at the RO level. Finally, he asserts that the Board did not err in denying the motion for
reconsideration.
Mr. McBurney filed a reply brief asserting that the stipulations addressed issues of law and
thus were not within the purview of the Board, a finder of fact. The remainder of his reply brief is
essentially a reiteration of the points he raised in his first brief.
II. ANALYSIS
A "former prisoner of war" is a person who, during active service, "was forcibly detained or
interned in line of duty . . . by an enemy government or its agents, or a hostile force, during a period
of war."1 38 U.S.C. § 101(32). The Board did not dispute that German soldiers were a hostile force
for an enemy government and that the incident occurred during a period of war. See Record (R.) at
1
Section 3.1(y) of title 38, Code of Federal Regulations, implements 38 U.S.C. § 101(32). Here, however, the
Board, concerned with an argument that the appellant raised regarding whether the regulation impermissibly narrowed
the statute, did not apply the regulation. Instead, it considered whether the statute alone provided a basis to grant
Mr. McBurney's claim. R. at 6.
2
10. Thus, the Board determined that the case turned on whether Mr. McBurney was "detained or
interned" within the meaning of the statute. Id. The Board concluded that he was not.
Before proceeding to the merits, the Court must first examine the propriety of the Board's
consideration of whether the veteran was "detained or interned." Mr. McBurney argues that because
VA had already made favorable findings that he was "forcibly detained" and entered into
"stipulations" to that effect, the Board impermissibly readdressed that issue sua sponte when it had
not been raised or briefed to the Board. The Board similarly erred, he contends, in effectively
overturning and ignoring those favorable findings and concessions to which the Board was bound.
A. Board's Consideration of "Forcible Detainment"
1. Sua Sponte Determinations
The Court finds no merit in Mr. McBurney's assertion that the Board must limit its analysis
to issues raised before it in the Substantive Appeal, briefs, and other arguments. "[T]he Board acts
on behalf of the Secretary in making the ultimate decision on claims and provides 'one review on
appeal to the Secretary.'" Disabled Am. Veterans v. Secretary, 327 F.3d 1339, 1347 (Fed. Cir. 2003).
In providing that "one review on appeal," "[t]he Board's consideration of evidence is not limited to
that which supports only legal issues raised in the Substantive Appeal, but all matters reasonably
raised prior to the Board's decision." Percy v. Shinseki, 23 Vet.App. 37, 48 n.5 (2009) (quoting EF
v. Derwinski, 1 Vet.App. 324, 326 (1991)). "Since its inception, this Court has consistently held that
there is 'nothing magic about the statements actually on the Substantive Appeal form, given the VA's
nonadversarial process." Id. at 47. "Once the Board has jurisdiction over a claim, [ ] it has the
authority to address all issues related to that claim." Jarrell v. Nicholson, 20 Vet.App. 326, 332
(2006) (en banc).
However, when the Board considers evidence not previously considered by the RO, see
Disabled Am. Veterans, 327 F.3d at 1347, or when the Board proceeds to address questions or issues
that the RO did not previously consider, "the Board must secure a waiver from a claimant or
otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the
question or issue." Id.; see also Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Similarly, where
the Board considers law not previously considered by the RO, the Board is required to notify the
claimant and indicate that consideration of this law may result in a decision adverse to the claimant.
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See 38 C.F.R. § 20.903(b) (2009) (requiring Board to "notify the appellant and his or her
representative" of its intent to consider a law not considered by RO, where consideration "could
result in denial of the appeal").
Here, the RO previously considered the issue of whether the veteran was a POW and the laws
associated with making such a determination. See R. at 275-77 (May 2005 RO decision finding that
although Mr. McBurney was "forcibly detained by [ ] a hostile force," he "is not recognized as a
former [POW], based on the circumstances he experienced during the period he was detained"); see
also R. at 260-70 (September 2007 Statement of the Case confirming and continuing the findings
of the May 2005 RO decision). Further, the Board did not consider any new evidence that the RO
had not previously considered; it simply reached a different conclusion as to whether Mr. McBurney
was "forcibly detained" when applying the facts to the law. In addition, because the Board did not
consider a question that the RO had not previously addressed, the Board was not required to secure
a waiver from the appellant or include an analysis of any possible prejudice resulting from its
consideration of that question. See Jarrell, 20 Vet.App. at 332. Thus, regardless of how the
particular issues were framed, it was not an error for the Board to determine the underlying question
of whether the veteran had been a POW.
2. RO Favorable Findings and Stipulations
Mr. McBurney conceded at oral argument that it is the Board's responsibility to make a
determination based on a review of the entire record. See 38 U.S.C. § 7104(a) (the Board is required,
as the final trier of fact, to make a decision based on consideration of the entire record and all
applicable provisions of law); see also 38 U.S.C. § 511(a)-(b)(4) ("The Secretary shall decide all
questions of law and fact necessary to a decision by the Secretary under a law that affects the
provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. . . .
[Such decisions] are final and conclusive."). He contends, however, that the Board is prohibited
from overturning or reconsidering matters already favorably decided by the RO or agreed between
the parties.
This Court recently addressed a similar issue in Anderson v. Shinseki, 22 Vet.App. 423(2009). In Anderson, the appellant argued that the Board could not disregard favorable findings
made by a decision review officer as to the three elements that must be established prior to the
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assignment of an extraschedular rating. Id. at 426. The Court determined otherwise, noting that
38 U.S.C. § 7104, which defines the Board's jurisdiction, "unlike the Court's jurisdictional statute,
contains no limitations on the Board's ability to review favorable findings. Indeed, the Board is
permitted to review the entirety of the proceedings below." Id. at 428. Thus, Anderson held that the
Board, as the final trier of fact, is not constrained by favorable determinations below.
As to favorable findings, the Court notes that VA did, at various times, make determinations
contrary to those made by the Board in the decision here on appeal. See R. at 92 (administrative
review of RO decision ("The evidence contained in the claims folder shows that the veteran was
detained by three German soldiers for one hour.")); R. at 269 (Statement of the Case ("While the
evidence shows you were forcibly detained by a hostile force, you are not considered a former
prisoner of war.")); R. at 275 (RO decision (concluding same)). Anderson clarifies, however, that
in implicitly overturning findings below, the Board did not act outside its scope of authority.
As to Mr. McBurney's argument that the Board could not overturn stipulations, the Court
notes preliminarily that the documents Mr. McBurney refers to as such are not clearly VA
stipulations, agreements, or concessions. What appears in the record are documents that purport to
be a meeting agenda, unsigned by any VA representative, as well as several pages of "yes" or "no"
responses unaccompanied by the questions associated with those responses. See R. at 122, 124-26.
Regardless, even assuming arguendo that the documents represent agreements between the
parties, the Board is no more constrained by those agreements than it is by favorable factual findings.
While Mr. McBurney urges this Court to carve a distinction between factual findings and stipulations
such that stipulations are immune from Board review, he cites no precedent–nor can the Court
discern any–that would allow the Court to limit the Board's jurisdiction in such a manner.2 Implicit
or express agreements between VA and claimants (not involving the Board or courts) remain subject
to the Board's de novo review on appeal. See Anderson, supra.
That is not to say that the Board is free to wholly ignore signed, written agreements entered
into between parties with the authority to do so. Just as the Board has a duty on remand to ensure
compliance with the favorable terms stated in a joint motion for remand (JMR) or explain why the
2
The Board put Mr. McBurney on notice of the Board's intention to review the entire record de novo at a May
2008 hearing. R. at 45. Mr. McBurney responded that he understood.
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terms will not be fulfilled, see Forcier v. Nicholson, 19 Vet.App. 414, 426 (2006); Stegall v. West,
11 Vet.App. 268, 271 (1998), the Board has a duty to ensure compliance with agreements between
VA and a claimant, or explain why such terms will not be fulfilled, see 38 U.S.C. § 7104(d) (Board
must provide a written statement of its reasons or bases on all material issues of fact and law);
Anderson, supra. Here, while the Board did not specifically reference any stipulations, the Board's
decision thoroughly explains why the undisputed facts preclude a finding that Mr. McBurney was
forcibly detained. In so explaining, the Board implicitly rejected any of the terms allegedly agreed
to by the RO and Mr. McBurney on the issue of forcible detainment. The Board's discussion of the
evidence and its statement of reasons or bases for its finding that Mr. McBurney was forcibly
detained are understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517,
527 (1995) (holding that the Board's statement "must be adequate to enable a claimant to understand
the precise basis for the Board's decision, as well as to facilitate review in this Court").
B. Application of the Statute
Having determined that the Board properly reviewed de novo the entire record below, the
Court will turn to the Board's ultimate finding that Mr. McBurney was not a POW. In its decision,
the Board is required to discuss all relevant evidence and all "potentially applicable" laws and
regulations. See 38 U.S.C. § 7104(d); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001)
(noting that the Board need only discuss relevant evidence). The Court reviews the Board's
interpretation of a statute de novo. Cypert v. Peake, 22 Vet.App. 307, 308 (2008).
When interpreting a statute, the starting point is the plain language. See Bradley v. Peake,
22 Vet.App. 280, 287 (2008). As described above, pursuant to section 101(32), to be considered a
former POW, a person must have been "forcibly detained or interned." "To Detain" means "[t]o keep
under restraint or in custody" or "to keep from proceeding; keep waiting; delay." WEBSTER 'S
UNABRIDGED DICTIONARY 541 (2d ed. 2001). "To Intern" means "to restrict or confine within
prescribed limits, as prisoners of war, enemy aliens, or combat troops who take refuge in a neutral
country." Id. at 996. "To Intern" can also be defined as "[t]o segregate and confine a person or
group, [especially] those suspected of hostile sympathies in time of war." BLACK'S LAW
DICTIONARY 820 (8th ed. 2004). Although these definitions leave little ambiguity as to the necessity
for some restraint or confinement to constitute "internment," "to detain," according to the above
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definition, means more than one thing, including merely a delay for no set period of time. Adopting
that definition, however, would produce absurd results. Cf. Ramsey v. Nicholson, 20 Vet.App. 16,
30 (2006) ("[If] 'it is clear that . . . the literal import of the [statutory] text . . . is inconsistent with the
legislative meaning or intent, or such interpretation leads to absurd results,' the Court will not reach
that result."). Indeed, as to the definition of "detain," the Board noted that "it could be argued that
[the] veteran was delayed or hindered by the three enemy soldiers"; however, the Board reasoned that
"[i]f this were the case, then every soldier who engaged in hand to hand combat with the enemy on
the battlefield would necessarily be a former prisoner of war." R. at 14. The Court concludes that
the definition of "detain," for purposes of section 101(32), must logically include elements of
"restraint" or "custody." The Court's conclusion here is consistent with the Board's interpretation of
section 101(32) and the meaning of "detained" and "interned." See R. at 11 (Board's interpretation
of "detained" and "interned").
Thus, having discerned correctly the meaning of the terms "intern" and "detain," the Court
must next determine whether the Board correctly applied the facts of this case to the statute in
reaching its conclusion. The Court reviews the Board's application of the facts to the statute under
the "clearly erroneous" standard of review. See Manibog v. Brown, 8 Vet.App. 465, 468 (1996). As
in all cases, the Board must analyze the credibility and probative value of the evidence, account for
the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any
material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
The Board's statement of the reasons or bases for its findings must be adequate to enable a claimant
to understand the precise basis for the Board's decision, as well as to facilitate review in this Court.
See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.
In its decision, the Board analyzed in some detail the various stages of the encounter between
Mr. McBurney and the German soldiers. The Board found that Mr. McBurney's initial approach
toward and his ensuing discussion with the German soldiers more closely resembled a negotiation
than a situation in which he was "detained" or "interned." R. at 11. The Board concluded that "the
Germans were attempting to detain the veteran, at the same time the veteran was attempting to detain
the Germans," but because "neither side achieved [its] goal," there was no actual detention. Id. at
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12. The Board observed that "[a]n attempt to detain is not the same as detaining." Id. The Board
then determined that Mr. McBurney entered into combat–he "engaged in the fight, wrestling away
from the enemy and then evaded enemy gunfire." Id. Ultimately, the Board concluded that Mr.
McBurney's encounter did not constitute detainment or internment under the meaning of the statute.
The Board's determination that Mr. McBurney was not forcibly detained or interned is
supportable based on a review of the legislative history of the statute. See Ramsey, supra. Congress
added to 38 U.S.C. § 101 a definition for "former prisoner of war" pursuant to the "Former Prisoners
of War Benefits Act of 1981" [hereinafter POW Act]. Corresponding statutes included a
presumption of service connection for those deemed POWs.3 See, e.g., 38 U.S.C. § 1112; 38 U.S.C.
§ 1712. Congress recognized that some veterans returning from WWII suffered
long-lasting and progressive physical and psychological damage attributable to the
conditions of internment experienced by former POW's. . . . [B]ecause of the
inadequate state of medical knowledge, the effects of various hardships suffered
during interment, including the long-term effect of dietary deficiencies and unsanitary
conditions and because of the strong desire of former [POWs] to return home as
quickly as possible after World War II, [U.S.] repatriation camps may have
discharged veterans without close attention to their potential health problems.
S. REP. NO . 97-88, at 8 (1981). The detrimental effects associated with POW internment (e.g.,
malnutrition, lack of adequate medical care, unsanitary conditions, etc.) concerned Congress. A
situation such as this where a servicemember is delayed in movement by a hostile force–even taking
into account the power disparity between armed German soldiers and the unarmed appellant–does
not give rise to the effects Congress envisioned. That is not to say that the veteran could not be
mentally or physically harmed from such an incident; however, Congress considered such instances
and made separate presumptions for veterans who had "engaged in combat." See, e.g., 38 U.S.C.
§ 1154(b). The circumstances surrounding Mr. McBurney's encounter with the German soldiers are
clearly distinguishable from the circumstances that Congress envisioned when enacting the POW
statute.
3
For "former prisoner[s] of war," 38 U.S.C. § 1112 currently requires a 30-day minimum detainment or
internment period for a presumption of service connection for certain diseases, including PTSD and post-traumatic
osteoarthritis. The POW Act included a compromise between the House and the Senate to reduce the minimum
detainment period for a presumption of service connection to certain diseases from six months to 30 days. POW Act,
Pub.L. No. 97-37, 95 Stat.935 (codified in part at 38 U.S.C. § 1112).
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On review of the Board's analysis, the statute and legislative history, and the record, the Court
is satisfied that the Board's application of the facts of this case to the provisions of section 101(32)
is supported by an adequate statement of reasons and bases and contains no clear error.
C. Buddy Statements
Mr. McBurney also argued that the Board erred in its rejection of buddy statements. The
Board noted that "[r]eports by fellow servicemen that the veteran was taken prisoner . . . [are] not
. . . factual report[s] but rather a characterization of prisoner status without reference to statutory
language or to any official findings." R. at 14. The Board thus dismissed the statements as
nonprobative. It is the Board's responsibility to weigh the evidence and make a determination with
regard to its credibility and probative value. See Washington v. Nicholson, 19 Vet.App. 362, 369
(2005). Although the appellant asserts that the buddy statements were probative to establish
"detainment," it appears that the facts as to the circumstances of that day are not in dispute. Thus,
while the buddy statements should have been considered probative for the purpose of establishing
the events that transpired, the Board did not err in its determination that the buddy statements are
irrelevant to the legal determination as to whether the veteran was a "prisoner of war."
D. Motion for Reconsideration
In his brief, Mr. McBurney also included a one-sentence argument pertaining to the alleged
failure of the Board Chairman to address reasons for denying Mr. McBurney's motion for
reconsideration of the Board decision: "In failing to include reasons why McBurney's Motion for
Reconsideration allegations (regarding stipulations and sua sponte rulings) were deemed insufficient,
the B[oard] violated 38 C.F.R. § 20.1001 [(setting forth requirements for Board Chairman's grant
or denial of reconsideration)]." Appellant's Br. at 13-14.
In this case, the Board Chairman denied reconsideration of the Board decision. To the extent
the Court has jurisdiction over a Chairman's denial of reconsideration, it is limited to denial of a
motion for reconsideration alleging new evidence or changed circumstances. Compare Romero v.
Brown, 6 Vet.App. 410, 412-13 (1994) ("[W]hether this Court may review the Chairman's denial of
reconsideration depends on the basis for the appellant's motion for reconsideration." (citing
Patterson v. Brown, 5 Vet.App 362 (1993))), with Mayer v. Brown, 37 F.3d 618, 619-20 (Fed. Cir.
1994) (holding that the Court's "jurisdiction is limited by statute to review of 'decisions of the Board
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of Veterans' Appeals.' . . . An action by the Chairman is not a decision of the [B]oard. . . .[Section
7261 of title 38, U.S. Code] does not independently grant jurisdiction over [actions of the Chairman].
. . . To the extent Patterson says otherwise, it is incorrect." (citations omitted)); see also Murillo v.
Brown, 10 Vet.App. 108, 110-11 (1997) (suggesting that under Patterson, Mayer, and Romero, "this
Court might be able to review a denial of a reconsideration motion in connection with which a timely
NOA has been filed but only if that motion alleges new and material evidence in the form of relevant
service-department records or other changed circumstances"). Mr. McBurney provides no indication
that the motion for reconsideration raised new evidence or alleged "changed circumstances." See
Murillo. Thus, the Court rejects Mr. McBurney's argument.
III. CONCLUSION
Upon consideration of the foregoing, the Court AFFIRMS the Board's July 17, 2008,
decision.
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