Young v. Brown

9 Vet. App. 141, 1996 U.S. Vet. App. LEXIS 272, 1996 WL 252229
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 14, 1996
DocketNo. 94-1039
StatusPublished
Cited by1 cases

This text of 9 Vet. App. 141 (Young 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
Young v. Brown, 9 Vet. App. 141, 1996 U.S. Vet. App. LEXIS 272, 1996 WL 252229 (Cal. 1996).

Opinion

IVERS, Judge:

The appellant appeals an October 31, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) denying him status as a former prisoner of war (POW) as defined by 38 U.S.C. § 101(32), and 38 C.F.R. § 3.1(y) (1995). Francis E. Young, BVA 94-18535 (Oct. 31, 1994). The Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court affirms the October 1994 decision of the BVA.

[142]*142I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Army from October 27, 1942, to November 14, 1945, and from October 10, 1950, to July 5, 1952. Record (R.) at 26, 51. During the appellant’s first enlistment (World War II), he served as a flight engineer with a B-24 bomber crew. R. at 26. On June 20,1944, the appellant was aboard a B-24 aircraft when enemy fire struck the bomber, causing it to make an emergency landing in Sweden, a neutral country during the war. Id.

The Swedish army interned the appellant in a Swedish prison camp for approximately two and a half months before transferring him to a military base. R. at 321. He was ultimately returned to his unit in March 1945. R. at 67. Medical records from the appellant’s separation examination show that he had “weak ankles aggravated by military service” but no other serious disabilities. R. at 29-30. The appellant filed for disability benefits in December 1945. R. at 34-35. After a review of the appellant’s application, VA denied him benefits for service-connected disabilities because VA regulations did not permit granting benefits to service members held by a neutral country.

On December 5, 1988, the appellant again filed a claim with VA seeking service connection for several disabilities, including bilateral weak ankles, nervousness, residuals of frostbite on both feet, and hearing loss. R. at 145. The appellant based his claim upon the unlimited presumptive period for former POWs provided under 38 U.S.C. § 1112(b).

On November 28, 1990, the Board denied the appellant status as a POW, finding that “the internment by the Swedish government during the initial 2% months is not shown to have been sufficiently severe as to be comparable to detainment by an enemy government.” R. at 329-33. The appellant filed an appeal with this Court.

On January 25, 1993, the Court remanded the case for further adjudication because the Board had failed to provide adequate reasons and bases for its finding that the appellant’s hardships were not comparable to those suffered by POWs interned by enemy governments. Young v. Brown, 4 Vet.App. 106, 109-10 (1993). On remand, the Board reopened the record and solicited a letter from Paul M. Cole, Ph.D, an expert on Swedish military history. R. at 414-16. In the letter, Dr. Cole advised that the conditions in the Swedish camps were “by every measure superior to the best German POW camps. Suggestions that Swedish camps were similar to German POW camps are inconsistent with the facts.” R. at 411.

On September 15, 1994, the Legislative Director of the Disabled American Veterans (DAV) wrote a letter to the Board on the appellant’s behalf, criticizing the BVA for soliciting the letter and for its contents. R. at 427-31. The BVA weighed the evidence presented and again denied the appellant status as a former POW. Young, BVA 94-18535 (Oct. 31, 1994). In its decision, the Board relied upon Dr. Cole’s conclusion that experiences of soldiers in Swedish camps were not comparable to those shared by soldiers held in enemy camps. R. at 12. The appellant again appealed the Board’s decision to this Court. The Court heard oral argument on April 3,1996.

II. ANALYSIS

A. Standard of Review

The appellant argues that his two and a half month internment in a Swedish prison camp entitles him to POW status as defined by 38 U.S.C. § 101(32). The code provision states:

The term “former prisoner of war” means a person who, while serving in the active military, naval, or air service, was forcibly detained in the line of duty—
(A) by an enemy government or its agents, or a hostile force, during a period of war; or
(B) by a foreign government or its agents, or a hostile force, under circumstances which the Secretary finds to have been comparable to the circumstances under which persons have generally been forcibly detained or interned by enemy governments during periods of war.

38 U.S.C. § 101(32)(A)-(B)(emphasis added). The appellant contends that his captivity ex[143]*143perience was comparable to the hardships experienced by POWs held by enemy governments during World War II. The statute gives the Secretary the discretion to make a determination of POW status under 38 U.S.C. § 101(32)(B). That determination may be reviewed by this Court and set aside if the conclusion is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 38 U.S.C. § 7261(a)(3)(A); Young, 4 Vet.App. at 108.

In Manibog v. Brown, 8 Vet.App. 465 (1996), this Court held that although POW status is a legal determination, “ ‘it fall[s] so clearly within the area of the BVA’s expertise [for fact finding] that deference to that expertise requires that the conclusion be characterized as factual.’ ” Manibog, 8 Vet.App. at 468 (quoting Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991)). In the Manibog decision, the Court treated POW status as a factual determination and applied a “clearly erroneous” standard of review rather than the “arbitrary and capricious” standard acknowledged in Young. Manibog, 8 Vet.App. at 468.

The Manibog case, however, is distinguishable from this case. In Manibog, the appellant argued that he had been held by the Japanese, an enemy government during World War II. Under this salient fact, section 101(32)(A) applied. Section 101(32)(A) contains no discretionary language. Under the provision, a veteran either is found to have been held by an enemy government during a period of war or not.

Under the facts in the instant case, the appellant was held by a foreign government, and section 101(32)(B) applies, thereby affording the Secretary discretion to find the circumstances comparable to those under section 101(32)(A). Thus the Court must apply the “arbitrary and capricious” standard of review as prescribed by 38 U.S.C. § 7261(a)(3)(A).

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9 Vet. App. 141, 1996 U.S. Vet. App. LEXIS 272, 1996 WL 252229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-brown-cavc-1996.