John McBurney v. Eric K. Shinseki

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

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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.

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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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