Selley v. Brown

6 Vet. App. 196, 1994 U.S. Vet. App. LEXIS 79, 1994 WL 32067
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 8, 1994
DocketNo. 92-1112
StatusPublished
Cited by5 cases

This text of 6 Vet. App. 196 (Selley v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Selley v. Brown, 6 Vet. App. 196, 1994 U.S. Vet. App. LEXIS 79, 1994 WL 32067 (Cal. 1994).

Opinions

IVERS, Judge, filed the opinion of the Court in which KRAMER, Judge, joined.

STEINBERG, Judge, filed a concurring opinion.

IVERS, Judge:

Ferencz M. Selley appeals a July 3, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying basic eligibility for VA benefits. Ferencz M. Selley, BVA 92-_(July 3, 1992). The Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, we will affirm the July 3, 1992, decision of the BVA.

I. FACTUAL BACKGROUND

Appellant recounts that on January 24, 1945, a commandant with the Soviet Army ordered him to help clear a school building in Gacs, Hungary, for use as a military facility. R. at 10, 33-34. Upon entering the school building, appellant stepped on either a mine or a grenade, which then detonated and blew off his right foot. R. at 35-36, 47. Having fled from Hungary because of his participation in the 1956 revolution against the government, appellant came to the United States in 1967. R. at 38.

On August 16, 1990, appellant applied to a VA regional office (RO) for disability compensation based on an amputation of the right foot. R. at 11-12. On January 16, 1991, the RO notified appellant that he did not have the requisite qualifying service for [198]*198receipt of compensation. R. at 22. A personal hearing was held before the RO on February 11, 1992. R. at 32. On February 18, 1992, the RO hearing officer continued the denial of eligibility for disability compensation benefits. R. at 42. On July 30, 1992, the Board found that appellant’s claim for VA disability compensation benefits was not well grounded. Selley, BVA 92-_, at 3.

II. ANALYSIS

At the time of his wartime injury, Mr. Selley was living in Gacs, Hungary, a town situated near the Hungarian border with Czechoslovakia. He does not allege that he was a member of the Armed Forces of the United States. There is thus no evidence that he was a “veteran” for purposes of eligibility for VA disability compensation under 38 U.S.C. §§ 101(2), 1110, 1131 (definition of “veteran”; wartime and peacetime disability entitlements under chapter 11). There is no other basis on which he could receive VA disability compensation. Cf. 38 U.S.C. § 107 (deeming certain service of World War II veterans of the Commonwealth of the Philippines not to be active service for disability compensation purposes).

Although the concurring opinion would have us refuse to examine Mr. Selley’s claim beyond this point, it is clear from the record and from the unusual factual circumstances (Mr. Selley was a 13-year-old civilian citizen of Hungary who was injured in a town on the Czechoslovakian-Hungarian border while following the instructions of a Russian Army officer. He eventually moved to the United States where he became a naturalized citizen.) that Mr. Selley brought these facts to the VA and asked that he be awarded whatever benefit or benefits he might qualify for. These ingredients are far different than those required for the type of “stew” so eloquently referred to in the concurring opinion. The Board properly considered and specifically adjudicated several different categories of benefits — that is, 38 U.S.C. § 109(b) and (c) — that are available to qualifying veterans of the armed forces of certain foreign countries. Selley, BVA 92-_, at 3. In that regard, 38 U.S.C. § 109(b) provides:

Persons who served in the active service in the armed forces of any government allied with the United States in World War II and who at time of entrance into such active service were citizens of the United States shall, by virtue of such service, and if otherwise qualified, be entitled to the benefits of chapters 31 [training and rehabilitation] and 37 [housing and small business loans] of this title in the same manner and to the same extent as veterans of World War II are entitled. No such benefit shall be extended to any person who is not a resident of the United States at the time of filing claim, or to any person who has applied for and received the same or any similar benefit from the government in whose armed forces such person served.

Certain VA health care benefits are available under 38 U.S.C. § 109(c)(1), which provides:

Any person who served during World War I or World War II as a member of any armed force of the Government of Czechoslovakia or Poland and participated while so serving in armed conflict with an enemy of the United States and has been a citizen of the United States for at least ten years shall, by virtue of such service, and upon satisfactory evidence thereof, be entitled to hospital and domiciliary care and medical services within the United States under chapter 17 of this title to the same extent as if such service had been performed in the Armed Forces of the United States unless such person is entitled to, or would, upon application thereof, be entitled to, payment for equivalent care and services under a program established by the foreign government concerned for persons who served in its armed forces in World War I or World War II.

Therefore, if appellant were seeking entitlement to benefits under section 109(b) or (c), he would have to satisfy the criteria laid out in these statutory provisions.

The statutes in question are clear and require no interpretation. See Good Samaritan Hosp. v. Shalala, — U.S. -, -, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984); [199]*199Brooks v. Brown, 5 Vet.App. 484, 485 (1993); Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991) (citing Lewis v. United States, 92 U.S. 618, 23 L.Ed. 513 (1876)), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993); 2A Norman J. SingeR, Sutherland Statutory Construction § 46.01 (Sands 4th ed.).

To qualify for benefits under section 109(b), an individual (a) must have served with a government allied with the United States in World War II, (b) must have been a United States citizen at the time of entry into such active service, (c) must be a United States resident at the time of filing a claim with the VA, and (d) must not have applied for and received the same or similar benefits from the government of the armed forces in which that individual had served.

In this ease, appellant is not able to qualify under any of the various categories because he has proffered no evidence that he served with a government allied with the United States in World War II. See S.REP.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 196, 1994 U.S. Vet. App. LEXIS 79, 1994 WL 32067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selley-v-brown-cavc-1994.