Gordon v. Gober
14 Vet. App. 193
Vet. App.
2000
Check Treatment
Docket

Mamie GORDON, Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Appellee.

No. 99-200

United States Court of Appeals for Veterans Claims.

Nov. 27, 2000.

As Amended Dec. 1, 2000.

14 Vet. App. 193

Before HOLDAWAY, STEINBERG, and GREENE, Judges.

cumstances that POWs endured while incarcerated by enemy governments. “Such circumstances include, but are not limited to, physical hardships or abuse, psychological hardships or abuse, malnutrition, and unsanitary conditions.” 38 C.F.R. § 3.1(y)(2)(i). In the 1993 POW report, the appellant checked the appropriate box to indicate that he was subjected to physical and psychological abuse as well as extreme exposure to the cold. His penmarks went unsubstantiated and were completely contradicted by his own sworn testimony. In March 1984, the appellant completed a POW report in which he stated that he was adequately provided and that he did not suffer from any physical or psychological abuse. In July 1988, he testified that he was interrogated by Swiss officials but did not state that he was subjected to privation or abuse. In July 1998, the appellant testified at a personal hearing and did not state that he was subjected to either privation or abuse. In August 1998, the appellant testified that he had been subjected to some psychological abuse but noted that he received adequate food and medical attention. He also did not report any physical abuse. In reaching its decision, the Board sensibly did not get into the question of which of the appellant‘s 1993 POW report was truthful. Rather, the Board relied on the appellant‘s most recent testimony which was in the more descriptive narrative form rather than a “check the box” format of the POW reports to conclude that the circumstances surrounding his period of internment were not comparable with that of POWs.

After a review of the record on appeal, I agree with the Board that the overwhelming nature of the evidence on appeal supports the Board‘s finding that the circumstances of the appellant‘s period of internment did not compare to those of a POW camp, and therefore, any failure of the Board to discuss the 1993 POW report was nonprejudicial. Cf. (Court affirmed Board‘s decision despite error “in face of overwhelming evidence in support of the result in a particular case.“) As the Board found, there is no evidence of record that the appellant suffered from physical hardships or abuse, malnutrition, or unsanitary conditions. He testified that he was confined to the town of Daubos, but that he ate the same food as and lived comparably to the Swiss residents. Even if the Board had considered the August 1993 POW report in which he checked the box to indicate that he was subjected to physical and psychological abuse, there simply is no likelihood that this evidence would convince the Board that the hardships experienced by the appellant during his period of internment were comparable to the hardships experienced by a POW in the face of the remainder of the evidence, all of which came from the appellant. Moreover, the appellant testified on four other occasions that he did not receive any physical abuse and that his psychological abuse merely consisted of a questioning by Swiss officials after he was shot down. This questioning, as well as the detention, was required by international law from a neutral nation when interning a combatant of a warring nation in a conflict in which they (the Swiss) were neutral. In conclusion, even if the Board erred in failing to specifically reference the 1993 POW report, I would that this error fits squarely within the meaning of nonprejudicial error.

For these reasons, I cannot join in the holding of the majority.

ORDER

PER CURIAM:

The appellant appeals through counsel a November 25, 1998, decision of the Board of Veterans’ Appeals (Board or BVA) that determined that she had not submitted a timely request for a waiver of recovery by the Department of Veterans Affairs (VA) of overpayment of death benefits. Record (R.) at 2. The appellant filed an informal brief, and the Secretary filed a motion for single-judge affirmance. Subsequently, counsel entered the case for the appellant, and the appeal was referred to this panel for consideration on September 21, 2000.

In his motion, the Secretary does not address whether 38 C.F.R. § 1.962 (1999), entitled “Waiver of overpayments”, is applicable to this case. Instead, he relies solely, as did the Board, on the denial of the appellant‘s claim on the ground that 38 C.F.R. § 1.963(b)(2) (1999) sets forth a 180-day period that serves as a deadline for the submission of an application for a waiver and that, in this case, no such waiver application was timely received. Motion at 3-4; see also R. at 3-5.

Both §§ 1.962 and 1.963 were promulgated in July 1974. See 39 Fed.Reg. 26,400. As then promulgated, § 1.962 contained no application-deadline provision and § 1.963 contained a 2-year waiver-application deadline. Compare 38 C.F.R. § 1.962 (1975) with 38 C.F.R. § 1.963 (1975). Both regulations were revised in September 1985, and the following categorical language was added to § 1.962 at that time: “There shall be no collection of an overpayment, or any interest thereon, which results from participation in a benefit program administered under any law by VA when it is determined by a regional office Committee on Waivers and Compromises that collection would be against equity and good conscience.” The language appears to have been added without explanation. See 549 Fed.Reg. 45,870 (proposed rule making); 50 Fed.Reg. 38,802 (1985) (publishing final amended regulation).

Thus, it appears that §§ 1.962 and 1.963 may conflict with each other; although § 1.962 expressly forbids collection in a case where collection “would be against equity and good conscience“, § 1.963 states that “[a] request for waiver of an indebtedness ... shall only be considered ... if made within 180 days following the date of a notice of indebtedness“. 38 C.F.R. § 1.962, 1.963(b)(2) (1999). In that regard, the underlying statutory provision provides:

(a) There shall be no recovery of payments or overpayments (or any interest thereon) of any benefits under any of the laws administered by the Secretary whenever the Secretary determines that recovery would be against equity and good conscience, if an application for relief is made within 180 days from the date of notification of the indebtedness by the Secretary to the payee, or within such longer period as the Secretary determines is reasonable in a case in which the payee demonstrates to the satisfaction of the Secretary that such notification was not actually received by such payee within a reasonable period after such date. The Secretary shall include in the notification to the payee a statement of the right of the payee to submit an application for a waiver under this subsection and a description of the procedures for submitting the application.

38 U.S.C. § 5302(a). Thus, the Court notes, the absolute prohibition against indebtedness recovery in § 1.962 (“There shall be no collection“) may be inconsistent with the implication in the statutory section 5302 that the prohibition obtains only if “an application for relief is made within 180 days from the notification of indebtedness“. 38 U.S.C. § 5302(a).

On consideration of the foregoing, it is

ORDERED that, not later than 30 days after the date of this order, the Secretary file, and serve on the appellant, a memorandum addressing the above matters as well as the question of the potential applicability of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), to the disposition of this appeal. See In Re: Veterans Claims Assistance Act of 2000, Misc. No. 4-00 (Nov. 13, 2000) (en banc). It is further

ORDERED that, not later than 30 days after service of the Secretary‘s memorandum, the appellant file a memorandum in response. It is further

ORDERED that, not later than 30 days after the Secretary files his supplemental memorandum, any interested individual or entity is invited to file a memorandum addressing the matters set forth above, including but not limited to responses to points made in the Secretary‘s supplemental memorandum. Any such interested individual or entity that intends to file such an amicus memorandum is requested to notify the Clerk of the Court of such intention, not later than 5 days after the Secretary files his supplemental memorandum.

Kenneth M. CARPENTER, Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Appellee.

No. 97-676.

United States Court of Appeals for Veterans Claims.

Nov. 29, 2000.

14 Vet. App. 195

Before HOLDAWAY, IVERS, and GREENE, Judges.

ORDER

PER CURIAM:

The appellant had filed a Notice of Appeal from a February 24, 1997, decision of the Board of Veterans’ Appeals (Board or BVA) which denied eligibility of the appellant for attorney fees. In an October 15, 1999, memorandum decision, the Court affirmed the BVA decision, and the appellant filed a timely motion for reconsideration or, in the alternative, a panel decision. On March 13, 2000, the Court granted the motion and issued a panel decision which affirmed the BVA decision. On August 22, 2000, the Court denied the appellant‘s motion for a decision by the full Court and entered judgment.

On September 28, 2000, counsel for the appellant filed a motion to vacate and set aside, for lack of jurisdiction, the Court‘s March 13, 2000, panel decision which affirmed the underlying February 27, 1997, BVA decision. The motion explained that prior to the entry of judgment, the Court recently rendered a decision in which held that the BVA lacked subject matter jurisdiction under 38 USC § 5904(c)(2) regarding issues of eligibility for attorney fees. Since the BVA decision on appeal addresses the issue of eligibility for attorney fees, counsel for the appellant urges the Court to vacate and set aside the BVA decision based on the holding in Scates so that the VA Regional Office (RO) can first address the issue of eligibility. Counsel for the Secretary has not filed an objection to this motion.

On consideration of the foregoing, it is

ORDERED that the appellant‘s motion is granted and that judgment is recalled and the Court‘s March 13, 2000, decision is withdrawn, and the appeal is DISMISSED. It is further

ORDERED that the Board‘s February 24, 1997, decision is VACATED for want of original jurisdiction to decide eligibility for attorney fees, and the matter is REMANDED to the Board with directions to dismiss the matter of attorney fee eligibility. After notice to the affected parties, and an opportunity to be heard, that claim should be decided by the RO. The aggrieved party may then file a Notice of