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Roy H. Mcfarland v. Eric K. Shinseki

November 4, 2011

ROY H. MCFARLAND, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in Case No. 09-3131, Judge Alan G. Lance, Sr.

The opinion of the court was delivered by: Newman, Circuit Judge.

NOTE: This disposition is nonprecedential.

Before NEWMAN, CLEVENGER, and O'MALLEY, Circuit Judges.

This appeal is from the decision of the United States Court of Appeals for Veterans Claims, denying the veteran's claims for compensation for injuries in an automobile accident.*fn1 The veteran, Roy H. McFarland, served on active duty in the United States Army from June 1953 to April 1955. On December 24, 1953, at about 9:00 p.m., Private McFarland was involved in a motor vehicle accident in Banks, Arkansas, and sustained fractures of the left femur, the left talus, and the right femur. He also sustained lacerations of the right ear, right eyebrow, and left forearm. The police report states that he was exceeding the speed limit and driving on the wrong side of the highway. The report estimated his speed as 70 miles per hour, while the lawful limit was 60 miles per hour. The other vehicle was estimated at 40 miles per hour at the moment of the accident. The initial Army investigation found that there was "no evidence that subject was intoxicated or guilty of misconduct." R. 389; App. 25. However, the Army reviewing authority later issued a substitute finding that the accident was not in the line of duty because "[t]he evidence submitted is not legally sufficient to support the findings that the injury sustained by [the appellant] was in line of duty -- not due to misconduct." R. 401; Supp. App. 8.

In August 1955, the veteran filed a claim with the Regional Office ("RO") seeking service connection for residuals of a broken right knee, left leg, and left foot, due to the December 24, 1953 accident. In March 1956, the RO held that at the time of the accident appellant "was exceeding the lawful speed," and that the evidence showed that he was "on the wrong side of the road when he had a head-on collision with the other parties" and "[t]here was no improper driving or violation of any laws indicated on the part of the other car or [its] driver . . . ." The RO observed that "the Army reviewing authority held that the disabilities were not incurred in line of duty, and were due to the veteran's own misconduct." The RO acknowledged that "VAR 1065(C) states in part that wil[l]ful misconduct must involve conscious wrongdoing or known prohibited action," and reasoned that "[t]he reckless manner in which this veteran was driving his automobile around a curve at the time of the accident constitutes wil[l]ful misconduct." Accordingly, the RO denied the requested benefits. No. c-18 917 934; App. 28. The veteran did not appeal.

In 2005 the veteran filed a claim for compensation based on individual unemployability. The veteran submitted a motion to revise the 1956 RO decision based on clear and unmistakable error ("CUE"), arguing that he had not engaged in "willful misconduct" because he had committed only a minor traffic violation, and his conduct was not deliberate or intentional. On August 10, 2009 the Board of Veterans' Appeals denied the motion, finding no clear and unmistakable error of fact or law in the RO decision of March 1956. The Board reasoned that:

The RO decision in March 1956 weighed the evidence and did not find that the Veteran committed a mere technical violation of police regulations or ordinances, but determined that he acted in a reckless manner. In applying 38 C.F.R. §3.65, which was the pertinent regulation for willful misconduct in March 1956, it was reasonable to conclude that the Veteran's driving demonstrated willful misconduct. A disagreement over how the evidence was weighed or evaluated does not constitute clear and unmistakable error in the rating decision by the RO. The Board finds that there was no evidence of an undebatable error that would have manifestly changed the outcome of the RO's decision. And there is no evidence that the standard of willful misconduct was applied improperly by RO in March 1956 or that the correct facts were not before the adjudicator.

No. 06-06 708, op. at 9.

The Court of Appeals for Veterans Claims affirmed the Board's finding of no CUE. The court explained that "[w]hile the appellant may be dissatisfied with how the RO weighed the evidence in finding willful misconduct, such a disagreement is insufficient to constitute CUE." The court cited 38 C.F.R. §20.1403 as explaining that CUE is "a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." No. 09-3131, op. at *3. In Yates v. West, 213 F.3d 1372, 1375 (Fed. Cir. 2005), this court stated that "the clear and unmistakable error provision applies when the facts compel the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error."

The veteran appeals to this court, arguing that the Board and the Veterans Court misinterpreted 38 C.F.R. §3.65 as strict liability. That section, titled "Willful misconduct," states in part:

(a) A finding in any case that a disabling condition is of willful misconduct nature . . . will bar any right to pension or compensation . . . . [A]n act to be one of "willful misconduct" must be 'malum in se' or 'malum prohibitum' if involving conscious wrongdoing or known prohibited action. (Mere technical violation of police regulations or ordinances will not per se constitute "willful misconduct" but are factors for consideration in light of the attendant circumstances.)

38 C.F.R. §3.65 (1956).

The veteran argues that "the proper interpretation of 38 CFR §3.65(a) was that the VA had to address mens rea before it could deny a VA claim on the basis of willful misconduct. 38 C.F.R. §3.65(a) did not allow for a finding of willful misconduct on a strict liability basis . . . . But neither the BVA nor the CAVC included this element in reaching their decisions. Instead, they applied §3.65(a) as if it were strict liability." Br. of Appellant at 11.

Willful misconduct requires some degree of mens rea or scienter. See Allen v. Principi, 237 F.3d 1368, 1378 (Fed. Cir. 2001) (the VA has "construed the term 'willful misconduct' to refer to an act of conscious wrongdoing, involving elements of intent and voluntariness."). Section 3.65's successor provision, 38 C.F.R. ยง3.1(n)(1), was amended in 1963 to elaborate that willfulness "involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 28 Fed. Reg. 320 (1963). Other courts have similarly interpreted the term, see, e.g., In re Korean Air Lines Disaster of Sept. 1. 1983, 932 F.2d 1475, 1479 (D.C. Cir. 1991) (explaining that "willful misconduct is the ...


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