Veteranclaims’s Blog

October 20, 2021

Single Judge Application; Garvey v. Wilkie; The Federal Circuit revisited this issue in Garvey v. Wilkie, noting that its decision in Camarena was nonprecedential and that a precedential decision was needed. Again, it held “the regulation [§ 3.12(d)(4)] is consistent with and authorized by the statute [section 5303].” 972 F.3d 1333, 1334 (Fed. Cir. 2020); The court held that section 5303 “is not the exclusive test for benefits eligibility.” Garvey, 972 F.3d 1333, 1334 (Fed. Cir. 2020);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6757
DELBERT L. JACKSON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Delbert L. Jackson served in the United States Army from June
1969 to December 1971. 1 In this appeal, which is timely, and over which the Court has
jurisdiction,2 he appeals a September 13, 2018, decision of the Board of Veterans’ Appeals that
found appellant’s character of discharge a bar to VA benefits. This matter was stayed pending the
Court’s decision in Bowling v. McDonough.3 The Court issued its decision in that matter on March
29, 2021. Thus, we will lift the stay of proceedings in this matter. Because appellant fails to meet
his burden of demonstrating error in the Board’s decision, we will affirm.
I. ANALYSIS
By way of background, the Board originally considered appellant’s character of discharge
in a June 2005 decision, in which the Board found the character of discharge a bar to benefits.4 In
1 Record (R.) at 3270.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 _ Vet.App. (Mar. 29, 2021).
4 R. at 3162-71.
2
an October 2006 memorandum decision, the Court affirmed the Board’s decision.5 When appellant
filed a claim for service connection for diabetes mellitus and PTSD in June 2009 which led to the
current appeal,6 VA again found his character of discharge was a bar to benefits, consistent with
the prior decision.7 The evidence of record raised the question whether appellant was insane at the
time of the in-service infractions that led to his other-than-honorable discharge, and this is the main
question before the Court.8 Appellant does not dispute the Board’s findings of willful and persistent
misconduct.
Appellant argues that the Board erred in relying on a February 2018 VA examination report
that purportedly did not comply with the prior Board remand. Specifically, he argues that the
examiner failed to answer the Board’s questions about appellant’s mental state during service and
instead focused on his current psychiatric condition. In the alternative, he argues that the Board
failed to provide an adequate statement of reasons or bases as to whether the examination complied
with the prior remand, despite the fact that he raised that issue to the Board. He further contends
that 38 C.F.R. § 3.12(d), which provides that willful and persistent misconduct is a bar to benefits,
is invalid because it exceeds the authority Congress provided under the statute, which does not
include that factor. He asserts that the Board’s decision is arbitrary and capricious because it relied
on this invalid regulation. The Secretary defends the Board’s decision in full and urges affirmance.
A. Legal Landscape
“In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party
upon whose service the claimant predicates the claim was a ‘veteran.'”9 A “veteran,” for VA
benefits purposes, is “a person who served in the active military, naval, air, or space service, and
who was discharged or released therefrom under conditions other than dishonorable.”10 A service
member who was discharged as a result of “willful and persistent misconduct” is considered to
5 R. at 3109-11; see Jackson v. Nicholson, 21 Vet.App. 419 (2006) (table).
6 R. at 3107.
7 R. at 3099.
8 See Browder v. Brown, 5 Vet.App. 268, 270 (1993) (“Under the doctrine of ‘law of the case,’ questions settled on a
former appeal of the same case are no longer open for review.”); McCall v. Brown, 6 Vet.App. 215, 216 (1994) (“Under
the law of the case doctrine, courts generally will not review or reconsider issues which already have been decided in
a previous appeal.”).
9 Cropper v. Brown, 6 Vet.App. 450, 452 (1994).
10 38 U.S.C. § 101(2) (2021); see 38 C.F.R. § 3.1(d) (2020).
3
have been discharged under dishonorable conditions.11 “Willful misconduct” is “an act involving
conscious wrongdoing or known prohibited action.”12 Further, such an act “involves deliberate or
intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable
consequences.”13
A discharge as a result of willful and persistent misconduct “is a bar to the payment of
benefits unless it is found that the person was insane at the time of committing the offense causing
such discharge or release.”14 VA defines an “insane person” as
one who, while not mentally defective or constitutionally psychopathic, except
when a psychosis has been engrafted upon such basic condition, exhibits, due to
disease, a more or less prolonged deviation from his normal method of behavior; or
who interferes with the peace of society; or who has so departed (become antisocial)
from the accepted standards of the community to which by birth and education he
belongs as to lack the adaptability to make further adjustment to the social customs
of the community in which he resides.[15]
In reaching a decision as to a claimant’s insanity, VA must “base its decision on all the evidence
procurable relating to the period involved.”16
The Board’s determinations regarding the character of a claimant’s discharge and the mental
state of the claimant at the time of the acts leading to discharge are findings of fact the Court
reviews for clear error.17 The Court may overturn the Board’s findings only if there is no plausible
basis in the record for the Board’s decision and the Court is “left with the definite and firm
conviction” that the Board’s decision was in error.18
Additionally, a claimant has the right to compliance with a remand from this Court or the
Board.19 The Secretary has an affirmative duty “to ensure compliance with the terms of the
11 38 C.F.R. § 3.12(d)(4) (2020).
12 38 C.F.R. § 3.1(n).
13 38 C.F.R. § 3.1(n)(1).
14 38 C.F.R. § 3.12(b); see 38 U.S.C. § 5303(b).
15 38 C.F.R. § 3.354(a) (2020); see Bowling, Vet.App. at _, slip op. at 2.
16 38 C.F.R. § 3.354(b).
17 See Gardner v. Shinseki, 22 Vet.App. 415, 419 (2009); Struck v. Brown, 9 Vet.App. 145, 153 (1996).
18 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
19 Stegall v. West, 11 Vet.App. 268, 271 (1998).
4
remand.”20 The Secretary fulfills this duty by substantially complying with the remand order
because we have recognized that absolute compliance is not necessary.21 But requiring only
substantial compliance is not some sort of “get out of jail free card” in terms of a failure to comply
with the terms of a remand. We have held in an analogous situation involving substantial
compliance as a standard that the “general legal concept [is] that substantial compliance means
actual compliance with . . . essential objectives.”22
For all its findings on a material issue of fact and law, the Board must support its decision
with an adequate statement of reasons or bases that enables a claimant to understand the precise
bases for the Board’s decision and facilitates review in this Court.23
B. Compliance with Prior Remand
Appellant’s argument that the Board failed to ensure compliance with its prior remand is
without merit. In its October 2017 remand order, the Board directed that the regional office obtain
a VA medical opinion addressing two questions: (1) “Was the behavior that led to [appellant’s]
discharge due to a psychiatric disability?” and (2) “Was [appellant] insane, under VA regulations,
at the time he committed the acts that led to his discharge under other than honorable conditions?”24
The February 2018 VA examiner answered both questions, finding appellant had no mental health
issues while in the Army25 and that he was not insane during service.26 Thus, although appellant
is correct that the examiner noted his current psychiatric symptoms, the examiner also clearly
answered the questions the Board posed. The VA examiner did precisely what the Board ordered.
Additionally, the Board specifically found substantial compliance in its decision based on
the October 2017 opinion.27 The Board noted appellant’s counsel had raised concerns about
compliance, addressed those concerns, and found that the examiner satisfied its prior remand
instructions.28
20 Id.
21 See, e.g., Dyment v. West, 13 Vet.App. 141, 146-47 (1999); Evans v. West, 12 Vet.App. 22, 31 (1998).
22 Mo. Veterans Comm’n v. Peake, 22 Vet.App. 123, 127 (2008).
23 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 53.
24 R. at 214.
25 R. at 174.
26 R. at 155.
27 R. at 5.
28 Id.
5
Thus, appellant has failed to demonstrate error in the Board’s substantial-compliance
findings.29 The Board adequately explained its conclusion finding substantial compliance with the
prior remand. The Board’s decision is fully understandable, and we cannot say that its factual
determinations are clearly wrong.
C. Validity of § 3.12(d)
Appellant’s other arguments center on his contention that 38 C.F.R. § 3.12(d) is an invalid
interpretation of section 5303. Because the Federal Circuit and this Court have already addressed
this question and found the regulation valid, appellant’s arguments must fail.
In Camarena v. Brown, this Court considered arguments nearly identical to those appellant
makes and held that § 3.12(d) was valid.30 Although appellant acknowledges the decision in
Camarena, he argues that the courts were mistaken in that case because neither this Court nor the
Federal Circuit in its analysis cited Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel,
Inc. (Chevron).31 Specifically, he asserts the Court did not consider whether section 5303 was
ambiguous and whether in section 5303(a) Congress intended the list of bars to benefits to be
exhaustive.
Although the Court in Camarena did not specifically cite Chevron, it did consider these
issues. After examining the plain meaning and legislative history of section 5303, the Court held
that
there is simply nothing [in section 5303], nor in the overall statutory scheme
encompassed by either title 38 of the U.S. Code (Veteran’s Benefits) or title 10
(Armed Services), that would suggest that the definition of “veteran” was to be
entirely removed from the rulemaking power of the Secretary.[32]
The Court concluded that “[w]hether a ‘plain meaning’ or congressional intent analysis is used, it
is abundantly clear that Congress did not say or intend to say that only those receiving
‘dishonorable discharges’ would be denied veteran status. We find the regulation valid.”33
The Federal Circuit revisited this issue in Garvey v. Wilkie, noting that its decision in Camarena was nonprecedential and that a precedential decision was needed. Again, it held “the
29 Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
30 6 Vet.App. 565 (1994), aff’d, 60 F.3d 843 (Fed. Cir. 1995).
31 467 U.S. 837 (1984).
32 Camarena, 6 Vet.App. at 567.
33 Id. at 568.
6
regulation [§ 3.12(d)(4)] is consistent with and authorized by the statute [section 5303].” 34 The court held that section 5303 “is not the exclusive test for benefits eligibility.”35
The Court is bound by the precedential decisions that speak to this matter.36 Although
appellant contends these decisions were a mistake, we have no authority to review decisions of the
Federal Circuit.37 Thus, the Board did not err in applying § 3.12(d)(4) to appellant’s case. We also
reject appellant’s argument that the Board’s reliance on the regulation was arbitrary and capricious.
As appellant presents no further assertions of error with respect to the Board’s decision, we will
affirm.
II. CONCLUSION
The Court lifts the stay of proceedings in this appeal. After consideration of the parties’
briefs, the governing law, and the record, the Court AFFIRMS the September 13, 2018, Board
decision.
DATED: April 5, 2021
Copies to:
Robert C. Brown, Jr., Esq.
VA General Counsel (027)
34 972 F.3d 1333, 1334 (Fed. Cir. 2020).
35 Id.
36 See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (holding that the Court is bound by its own panel decisions as
well as decisions of the Federal Circuit).
37 Id.

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