UNITED STATES COURT OF VETERANS APPEALS

No. 94-342

Oscar L. Bolton, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided August 30, 1995 )

Jeffrey Wood was on the brief for the appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General
Counsel; Thomas A. McLaughlin, Deputy Assistant General Counsel; and
John McNamee were on the brief for the appellee.

Before FARLEY, IVERS, and STEINBERG, Judges.

FARLEY, Judge, filed the opinion of the Court. IVERS, Judge, and
STEINBERG, Judge, filed separate concurring opinions.

FARLEY, Judge: This is an appeal from a January 12, 1994, decision of
the Board of Veterans\' Appeals (BVA or Board) which denied the
appellant\'s claim for an increased rating for post-traumatic stress
disorder (PTSD). The appeal is timely, and this Court has jurisdiction
pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the
Court will vacate the Board\'s decision and remand the matter for
readjudication consistent with this opinion.

I.

The appellant served on active duty from November 1968 to August 1971.
Record (R.) at 5, 18. In November 1984, the appellant was incarcerated
at the Morgan County Regional Correctional Facility at Wartburg,
Tennessee, with a scheduled release date of March 3, 2005. R. at 123. In
July 1985, he received a 10% rating for service-connected PTSD. R. at
17-20, 22.

In March 1991, the appellant filed a claim for an increased rating. R.
at 77, 99. He wrote that he had been denied jobs because of his PTSD,
that he had worked alone in his prison job in the laundry, that his
medical condition had deteriorated because of his PTSD, and that he had
suffered a \"flash-back\" which had resulted in injuries. R. at 78-79.
The appellant submitted a medical treatment record which recorded that
on July 16, 1987, he had complained of \"anxiety, flashbacks in \[the\]
twilight sleep \[and\] nightmares.\" R. at 56, 95. The prison
psychologist had diagnosed \"anxiety \[secondary\] to \[PTSD\].\" Ibid.
The treatment record also reported that on July 21, 1987, the appellant
had received medical attention after reporting that he had been
sleeping, \"and \[the\] next thing he knew \[he\] had fallen \[and\]
struck \[his\] head on \[the\] door.\" Ibid. The medical practitioner
had noted a superficial one inch laceration to the appellant\'s forehead
and a small raised area on his nose. Ibid. The appellant also provided
an affidavit from Pat Lankford, a correctional officer at the county
facility, which stated:

\[A\]lthough I have no formal medical training, I feel strongly that
Oscar Bolton exhibits personality traits which would seriously handicap
him in getting and holding a job in a free society. However, while Oscar
has a job as a \"landury (sic) man\[,\]\" he has no co-workers, as the
landury (sic) job is a one-man-operation.

Further, I have observed that Oscar is a \"loner\", who has minimal
interaction with his fellow inmates, and does not participate in any
extracurricular activities. R. at 81. The appellant also submitted \"Job
Register Placement\" forms which recorded that in September and October
1990, the appellant had requested to work as a carpenter, upholsterer,
sewing machine operator, \"Comm. Cleaner,\" and building trades
apprentice, but that all of his requests had been denied \"due to
medical limitations.\" R. at 90-94.

In March 1991, the VA regional office (RO) denied the appellant\'s claim
stating that \"There is no current evidence showing his disability has
increased in severity.\" R. at 99. In September 1991, the appellant
filed a Notice of Disagreement (R. at 103), and in October 1991, he
perfected his appeal to the Board. R. at 112. In a decision dated April
28, 1992, the Board remanded the appellant\'s claim to the RO, noting
that the appellant had not received a psychiatric examination since June
1989. R. at 125-28. The Board ordered the RO to \"take appropriate
action to obtain copies of any clinical records that may exist
reflecting psychiatric or psychological treatment\" during his
incarceration, and that the RO should take appropriate action to have
the veteran undergo a VA psychiatric examination for the purpose of
ascertaining the current nature and extent of his psychiatric
disablement. The examiner is specifically requested to comment on the
degree of social and industrial impairment attributable to \[PTSD\]. All
studies deemed necessary should be performed. The claims folder should
be made available to the examiner for review prior to the examination.
R. at 127.

The medical treatment records from the Tennessee Department of
Corrections were received (R. at 136-55), including a March 1986 and a
May 1990 \"Health-Related Work Classification Summary\" which reported
that the appellant had been placed on limited duty with \"periodic
attention required.\" R. at 137-38, 148. The examiner also noted three
specific work limitations (i.e., \"\[s\]hould not work around
potentially dangerous machinery or equipment\"), and annotated that the
appellant\'s physical disabilities were \"\[o\]rthopedic \[d\]isease or
\[d\]isorder ?? by \[history\] . . . \[and\] \[p\]sychosis/\[m\]ental
\[i\]llness.\" Ibid. The records also included a mental health
evaluation for the Board of Parole dated May 30, 1990, by Dr. Nguyen, a
fourth-year psychiatry resident at Meharry Medical College. R. at
150-53. Dr. Nguyen reported that he had conducted a clinical interview
with the appellant and reviewed the appellant\'s institutional files
including a \"Facts of the Offense report.\" R. at 150. He concluded
that \"Mr. Bolton has a long history of conduct disorder from his
childhood that involved his adulthood with Antisocial Personality
Disorder. He has no evidence of \[PTSD\] from the Vietnam war.\" R. at
152.

In September 1992, the RO wrote to the Chief of the VA Outpatient Clinic
in Knoxville, Tennessee, requesting that he arrange for a VA examination
of the appellant, as required by the BVA remand, by coordinating with
the warden of the correctional facility, and enclosed the appellant\'s
claims folder for the examiner\'s review. R. at 164. However, Dr.
Howard, Chief Medical Officer at the VA Knoxville Outpatient Clinic,
responded by writing that the \"clinic is unable to find a fee base
psychiatrist \[who\] will do an examination at the institution.
\[Also,\] Mr. Luther Townley, Health Administrator at the institution .
. . does not have any physician \[who\] will do this type of specialized
examination.\" R. at 172. In January 1993, the RO issued a confirmed
rating decision denying the appellant an increased rating. R. at 176-77.
The RO referenced Dr. Nguyen\'s report, and then concluded:

A review of your VA files shows that your appeal . . . was remanded to
this office for additional medical evidence. However, since you are
incarcerated at the Morgan County Regional Correction Facility, we have
been unable to obtain the necessary VA examination, as requested by the
\[BVA\], in order to reconsider your claim for an increased evaluation.
Therefore, the available medical evidence does not show an increased
evaluation is warranted and your \[PTSD\] remains 10% evaluated. R. at
177.

In February 1993, the appellant requested an examination \"as
order\[ed\] by the BVA.\" R. at 184. In response, the RO inquired when
the appellant expected to be released from prison, informed him that
\"since you were incarcerated, the examination could not be done,\" and
advised him that, \"since no current medical evidence is available, no
change is warranted in the current evaluation of your \[PTSD\].\" R. at
188. The appellant responded that he did not know when he would be
released from prison. R. at 190.

In the January 1994 BVA decision, the Board decided that \"the
preponderance of the evidence \[was\] against \[the appellant\'s\]
appeal for an increased rating for \[PTSD\].\" R. at 5. The Board,
relying upon the May 1990 evaluation of Dr. Nguyen, wrote:

Significantly, the examiner found no evidence of \[PTSD\], and the
veteran\'s emotional problems were thought to be related to factors
including drug and alcohol withdrawal. The pertinent diagnoses were
multiple substance dependence, by history, and antisocial personality
disorder. Inasmuch as subsequent efforts by the RO, most recently in
November 1992, to arrange for the veteran\'s psychiatric examination,
pursuant to the provisions of 38 C.F.R. § 3.327 (1992) authorizing
reexaminations by the VA to verify the current severity of a disability,
have been unavailing, we must use our best judgment to determine what we
feel is his current level of symptomatology. However, even assuming,
without conceding, that any such current symptomatology may be
productive of some social inadaptability, we must emphasize that there
is no clinical evidence that any interruption in any preincarceration
employment held by the veteran was occasioned by anything other than
criminal conduct, as opposed to any factor related to \[PTSD\]; and that
there is, similarly, no clinical evidence relating any recent
disqualification from any work or job training opportunity offered in
conjunction with the veteran\'s current incarceration to his \[PTSD\].
R. at 8 (emphasis added).

The appellant filed a timely appeal to this Court, arguing that VA
violated its duty to assist him by not providing a psychiatric
examination as instructed by the Board upon remand to the RO.
Appellant\'s Brief (Br.) at 5-7. The appellant also argues that,
pursuant to 38 U.S.C. § 5711, VA has subpoena power and should have
issued a subpoena to require the correctional institution to release him
with guards, as needed, so that VA could provide the psychiatric
examination at the closest VA medical facility. Id. at 6. The appellant
asserts that the Board erred when it failed to provide an adequate
statement of reasons or bases for finding more persuasive the 1990
medical diagnosis which failed to diagnose PTSD than the two other
examination reports of record which diagnosed PTSD. Id. at 7-8. Finally,
the appellant argued that the BVA erred when it failed to consider all
the evidence, to include his testimony that he could not work with
others and the \"Health-Related Work Classification Summary\" documents
he submitted to show the limitations placed upon his job assignments due
to his medical condition. Id. at 8-10.

The Secretary argues that the BVA decision should be vacated because the
appellant\'s claim was not well grounded. Secretary\'s Br. at 6-8. In
the alternative, the Secretary argues that the decision should be
affirmed because it was predicated on a plausible basis in the record,
the May 1990 psychiatric evaluation. Id. at 8-10.

II\.

Section 5313 of title 38, U.S. Code, provides limitations on payments of
compensation to incarcerated veterans, and states that a veteran
incarcerated for a period in excess of sixty days for conviction of a
felony shall not be paid such compensation . . . in an amount that
exceeds\--

\(A\) in the case of a veteran with a service-connected disability rated
at 20 percent or more, the rate of compensation payable under section
1114(a) . . . or

\(B\) in the case of a veteran with a service-connected disability not
rated at 20 percent or more . . . one-half of the rate of compensation
payable under section 1114(a) of this title.

38 U.S.C. § 5313(a)(1); see 38 C.F.R. § 3.665(d)(1),(2) (1994). Under 38
U.S.C. § 1114(a), a veteran rated as 10% disabled receives monthly
compensation of \$87. The appellant is currently rated only 10%
disabled, and thus receives only one-half the compensation due pursuant
to 38 U.S.C. § 1114(a), currently \$43.50 per month. If the appellant\'s
disability rating were to be increased to 30%, as he has requested, he
would then receive the amount of compensation due under 38 U.S.C. §
1114(a), currently \$87 per month. Therefore, this appeal presents a
\"case or controversy\" ripe for judicial review. See Mokal v.
Derwinski, 1 Vet.App. 12,15 (1990).

III\.

Pursuant to 38 U.S.C. § 5107(a), a claimant \"shall have the burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.\" 38 U.S.C. §
5107(a); see also Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). A
claim for an increased evaluation is a new claim, not a reopened claim,
and thus it is subject to the well-groundedness analysis. Stanton v.
Brown, 5 Vet.App. 563, 565 (1993). A well-grounded claim is one which is
plausible, \"meritorious on its own or capable of substantiation.\"
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); see also Grottveit v.
Brown, 5 Vet.App. 91, 92 (1993) (a well-grounded claim creates \"a
belief by a fair and impartial individual that the claim is plausible\"
(quoting Tirpak, 2 Vet.App. at 611)). Although the Board found, without
analysis, the appellant\'s claim to be well grounded, the determination
of whether a claim is well grounded is a matter of law which this Court
reviews de novo. See Yabut v. Brown, 6 Vet.App. 79, 82 (1993);
Grottveit, 5 Vet.App. at 92; King v. Brown, 5 Vet.App. 19, 21 (1993).

The appellant has claimed entitlement to a rating increase for his
service-connected PTSD. The appellant\'s assertion that this disability
had worsened is adequate to make the claim well grounded. See Proscelle
v. Derwinski, 2 Vet.App. 629, 632 (1992) (finding a claim for an
increased rating well grounded when the appellant asserted that his
service-connected disability had worsened since the prior rating); see
also Lathan v. Brown, 7 Vet.App. 359, 365 (1995) (\"The threshold of
plausibility to make a claim well grounded is considerably lower than
the threshold for new and material evidence to justify reopening a
claim\").

IV\.

A.

The Board is required to provide \"a written statement of \[its\]
findings and conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law presented on the
record . . . .\" 38 U.S.C. § 7104(d)(1). In Gilbert v. Derwinski, 1
Vet.App. 49 (1990), the Court wrote:

The Board must identify those findings it deems crucial to its decision
and account for the evidence which it finds to be persuasive or
unpersuasive. These decisions must contain clear analysis and succinct
but complete explanations. A bare conclusory statement, without both
supporting analysis and explanation, is neither helpful to the veteran,
nor \"clear enough to permit effective judicial review,\" nor in
compliance with statutory requirements. Id. at 57 (citation omitted).

Here, the Board concluded that the appellant\'s claim for an increased
rating should be denied, but the Board\'s decision failed to \"account
for the evidence which it finds to be persuasive or unpersuasive,\" for
the record contained evidence supporting the appellant\'s claim which
the BVA did not address in its decision. Specifically, the record
contained a prison treatment record which discussed the appellant\'s
complaints and treatment for anxiety flashbacks and sleep disturbances
attributed to his PTSD (R. at 56), and 1991 prison treatment plans for
treating his PTSD in the future (R. at 139). Further, the record
contained evidence of restricted job assignments attributed to \"medical
limitations.\" R. at 90-94. Yet the BVA merely concluded that there was
no clinical evidence \"relating any recent disqualification from any
work or job training opportunity offered in conjunction with the
veteran\'s current incarceration to his \[PTSD\].\" R. at 8.

The BVA decision also provided an inadequate analysis of Mr. Lamont\'s
affidavit, a material piece of evidence which the appellant asserts
proved industrial impairment. Although the BVA referenced this affidavit
when it wrote that the appellant had submitted a statement \"by a
correctional officer, wherein the veteran is characterized as an
individual who avoids interaction with fellow inmates and works without
co-workers in a one-man laundry position\" (R. at 8), the Board did not
comment upon the evidentiary significance, if any, it had given this
document. Such treatment of the evidence does not meet the standard set
in Gilbert, for the Board did not \"account for the evidence which it
finds to be persuasive or unpersuasive,\" Gilbert, 1 Vet.App. at 57, or
\"analyze the credibility and probative value of all material evidence
submitted by and on behalf of a claimant, and provide the reason for its
rejection of any such evidence.\" Caluza v. Brown, 7 Vet.App. 498, 506
(1995); see also Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Gilbert,
supra.

B.

Once a claimant has satisfied his initial burden of submitting a
well-grounded claim, VA has an affirmative duty to \"assist such a
claimant in developing the facts pertinent to the claim.\" 38 U.S.C. §
5107(a); see Proscelle, supra. \"Where the record does not adequately
reveal the current state of the claimant\'s disability and the claim is
well grounded, the fulfillment of the statutory duty to assist requires
a thorough and contemporaneous medical examination.\" Allday v. Brown, 7
Vet.App. 517, 526 (1995) (citing Suttmann v. Brown, 5 Vet.App. 127, 138
(1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991)).
Further, \"\[w\]here the veteran claims a disability is worse than when
originally rated, and the available evidence is too old to adequately
evaluate the current state of the condition, the VA must provide a new
examination\" to fulfill its duty to assist. Olson v. Principi, 3
Vet.App. 480, 482 (1992) (citing Proscelle, supra).

Here, the Board properly identified a need for a current examination
when it remanded the appellant\'s claim in 1992 and ordered a
psychiatric examination to determine \"the current nature and extent of
\[the appellant\'s\] psychiatric disablement. . . \[,\] specifically . .
. the degree of social and industrial impairment attributable to
\[PTSD\].\" R. at 127. The Board also ordered the RO to make the
appellant\'s claims folder available to the examiner, who was to conduct
all studies necessary to make the requested determinations. However, a
current examination was not obtained, and the Board chose to rely upon a
1990 examination conducted at the request of the Parole Board by a
psychiatry resident who did not have the appellant\'s claims folder to
review. Such an examination neither fulfills VA\'s duty to assist, nor
constitutes an adequate predicate for both the rating determination and
the BVA\'s decision. See 38 C.F.R. §§ 4.2 (RO must return examination
report that does not contain sufficient detail for rating purposes);
19.9 (BVA must remand case to RO where \"further evidence . . . is
essential for a proper appellate decision\") (1994). Dr. Nguyen\'s
report did not provide the information the BVA deemed necessary, and the
Board should not have ceased in its quest for this necessary evidence to
render its judgment on the appellant\'s claim. See Allday, supra; 38
C.F.R. § 19.9.

In Wood v. Derwinski, 1 Vet.App. 190 (1991), the Court stated:

We do, however, caution those who adjudicate claims of incarcerated
veterans to be certain that they tailor their assistance to the peculiar
circumstances of confinement. Such individuals are entitled to the same
care and consideration given to their fellow veterans. Id. at 193.

Although the RO claimed an inability to get a fee-basis physician to
conduct an examination in the correctional facility, the record contains
neither information concerning the efforts expended by the RO in that
regard nor any explanation as to why a psychiatrist employed by the VA
was not directed to perform the examination. Under the unique
circumstances presented by this case, where the Secretary has determined
that the veteran is not available to participate in a VA examination
under regular conditions, and in keeping with the \"caution\" of Wood,
supra, a remand is required to provide the Secretary with another
opportunity to fulfill his statutory duty to assist this appellant in
developing the facts of his claim. See 38 U.S.C. § 5107(a); 38 C.F.R. §§
4.1, 4.2, 4.10 (1994).

C.

Finally, we do not agree with the argument by the appellant that the
Secretary has the authority under 38 U.S.C. § 5711 to require the
correctional institution to release the appellant with guards, as
needed, so that VA could provide the psychiatric examination at the
closest VA medical facility. Section 5711(a) of title 38, U.S. Code,
authorizes the Secretary or his properly delegated representative to
\"(1) issue subpoenas for and compel the attendance of witnesses within
a radius of 100 miles from the place of hearing . . .\[and\] (4) aid
claimants in the preparation and presentation of claims.\" In 38 C.F.R.
§ 20.711 (1994), the Secretary has defined the scope of this subpoena
power to compel the production of witnesses or evidence for a VA
hearing. We do not read either the statute or the regulation as
authorizing the Secretary to subpoena the warden at a state correctional
facility and direct the release of the appellant from that facility for
attendance at a VA hospital for a psychiatric examination. Cf. U.S. v.
Larkin, 978 F.2d 964, 967-68 (7th Cir. 1992) (discussing the federal
government\'s use of a Writ of Habeas Corpus to obtain custody of a
prisoner in a state facility pursuant to 28 U.S.C. § 2241).

V.

Accordingly, the Board\'s January 12, 1994, decision is VACATED and the
matter REMANDED for expeditious proceedings consistent with this
opinion. See Veterans\' Benefits Improvements Act of 1994, Pub.L.No.
103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101
note). On remand, after completion of the VA psychiatric examination,
the Board may reevaluate the evidence and provide adequate reasons or
bases for its conclusion, to include an explanation as to the
applicability of the benefit-of-the-doubt rule as to each material issue
in the case. 38 U.S.C. § 5107(b); see Crowe v. Brown, 7 Vet.App. 238,
249 (1994) (stating that the reasons or bases requirement of 38 U.S.C. §
7104(d)(1) applies to the Board\'s application of the
benefit-of-the-doubt rule); Williams (Willie) v. Brown, 4 Vet.App. 270,
273-74 (1993) (\"where there is significant evidence in support of an
appellant\'s claim . . . the Board must provide a satisfactory
explanation as to why the evidence was not in equipoise\").

IVERS, Judge, concurring: I concur, as I must, in Judge Farley\'s
excellent opinion in this case. I write separately to emphasize that the
Court has arrived at the result in this case just as an appellate Court
should, within our jurisdiction to \"decide all relevant questions of
law, interpret constitutional, statutory, and regulatory provisions and
determine the meaning or applicability of the terms of an action of the
Secretary.\" 38 U.S.C. § 7261(a)(1).

As is clearly and succinctly set forth in the opinion in this case,
Congress has provided for payment of reduced compensation to qualified
veterans during periods of incarceration. See 38 U.S.C. § 5313(a)(1).
The provision reducing the amount of compensation available to certain
incarcerated veterans was enacted in October 1980. See Pub.L. 96-385, §
504(a), 94 Stat. 1534, 3307, (Oct. 7, 1980). The Secretary, by
regulation, has implemented the statute and has provided, in accordance
with provisions of that statute, for payment of compensation in a
reduced amount, to qualified veterans during periods of incarceration.
38 C.F.R. § 3.665 (1994). The legislative history of the statute reveals
that differences existed between the House and the Senate regarding
adding a new section to title 38 which would limit the payment of
compensation, to otherwise eligible veterans, during confinement in a
penal institution. The House favored limiting the payment of benefits to
all incarcerated veterans. On August 6, 1980, the Senate passed its
revision to the House bill (H.R. 7511) as an amendment to the Veterans\'
Disability Compensation and Housing Benefits Amendments of 1980. Prior
to the Senate\'s adoption of H.R. 7511, the Senate version did not
contain a provision limiting the payment of compensation to incarcerated
veterans. Congressman Montgomery, the chairperson for the Subcommittee
on Compensation, Pension, Insurance, and Memorial Affairs, in
introducing the final version of the House-Senate compromise, stated:

Mr. Speaker, the purpose of compensation is to replace the lost earning
capability of a disabled veteran where the impairment is caused by a
service-connected condition. I do not consider it unreasonable to
recognize that individuals who are confined by our judicial system for
commission of a serious offense against society are no longer available
to the labor market. An economic detriment caused by a disability is not
felt by such individuals during long periods of confinement.

As you know, if a member of the Armed Forces commits a violent act so
severe as to require a dishonorable discharge, such individual is
precluded from receiving any veterans\' benefits at all for the rest of
his life. To me it is not unreasonable to expect a similar standard of
conduct to be applied to veterans. I have great difficulty, as do many
members of the committee, in providing a full range of Federal benefits
to individuals serving long sentences for the commission of felonies.

I do not see the wisdom of providing hundreds and thousands of dollars
of tax free benefits to such individuals when at the same time the
taxpayers of this country are spending additional thousands of dollars
to maintain these same individuals in penal institution\....126 Cong.
Rec. 26,118 (1980).

Congressman Wylie, the ranking minority member of the Subcommittee on
Compensation, Pension, Insurance, and Memorial Affairs stated:

. . . . I fully appreciate that compensation benefits have always been
awarded by a grateful nation for disabilities suffered in the line of
duty, and without regard to later economic status, and I have no
philoso\[p\]hical difficulties with that concept. But, Mr. Speaker, the
cast of an individual imprisoned for a felony\--a serious, intentional
crime against the very people who are being asked to reach into their
pockets and pay taxes to pay such compensation\--is an entirely
different matter.

Even the military treats this situation differently. If a serviceman is
injured on active duty and commits a felony prior to being discharged,
he may well receive a bad conduct or dishonorable discharge. If so, he
will receive no benefits whatsoever for the remainder of his life.
Contrarily, under present law if the same individual is discharged and
then commits the same felony, such payments are unaffected. In the case
of imprisonment, when a prisoner is being fully supported by tax dollars
that fund the penal institution, it becomes ludicrous to continue
payment of benefits designed to help him maintain a standard of living.
Thus, I believe the reduced stipend of \$60 a month is reasonable and,
indeed, generous. Personally, I would stop all compensation during
incarceration for a felony. But, this is a good compromise.. . . .126
Cong. Rec. 26,122 (1980).

In the Senate, Senator Cranston, Chairperson of the Veterans\' Affairs
Committee, urged that the Senate concur in the House amendments to the
Senate amendments to the bill. Senator Cranston stated:

Mr. President, in my view and in the view of other committee members,
the House-passed provision not only raised questions of fundamental
fairness but also threatened basic principles underlying the
service-connected compensation programs. However, with the utmost
reluctance and recognizing the depth of the feelings in the other body
with regard to the issues involved\--and, as I previously noted, Senator
Thurmond and I personally met with Representatives Montgomery and
Wylie\--we have reached an accord on the provisions in the compromise
agreement, provisions that I believe are consistent with notions of
fundamental fairness.. . . .126 Cong. Rec. 27,012 (1980).

I write separately to highlight the debate and the policy underlying the
enactment of section 5313 of title 38 permitting the payment of
benefits, albeit at a reduced rate, to incarcerated veterans. An
incarcerated veteran who is under the watchful eye of Federal or State
authorities is not engaging in a type of lifestyle, the quality of which
must be improved or maintained by the payment of compensation. Nor would
it seem that that veteran is engaged in activities involving \"earning
capacity\" as envisioned by the drafters of 38 U.S.C. § 1155, or the
rating schedule adopted in accordance therewith. See 38 C.F.R. § 4.1.

The Court today imposes a requirement on the Secretary in carrying out
the duty to assist under 38 U.S.C. § 5107(a) and 38 C.F.R. § 3.159
(1994), that was, perhaps, not contemplated by Congress when it enacted
38 U.S.C. § 5313. However, we cannot now lightly infer that the duty to
assist a veteran in developing his claim applies any less to an
incarcerated veteran than to a non-incarcerated veteran. See Wood v.
Derwinski, 1 Vet.App. 406 (1991). This is especially so in light of the
eligibility of incarcerated veterans to receive payment of compensation
while they are in a penal institution. The language of the statute is
plain, and thus does not suggest a contrary result. Office of Personnel
Management v. Richmond, 496 U.S. 414 (1990). When construing the meaning
of a statute, a Court is \"bound by the choices Congress has made, not
the choices we might wish it had made.\" Farrar v. Hobby,
\_\_\_U.S.\_\_\_, \_\_\_, 113 S.Ct. 566, 568 (1992). The duty of the
Courts is to enforce the laws enacted by the legislature, \"however much
we might question its wisdom or fairness.\" Estate of Cowart v. Nicklos
Drilling Co., 505 U.S. 469, 471 (1992). \"If the effects of the law are
to be alleviated, that is within the province\" of Congress. Id. Should
Congress, in its wisdom, deem it necessary to change the statute, that
authority lies with Congress and not with this Court. Id. In
contemplation of the current policy and political climate, I note that,
currently pending before the Senate as part of the National Defense
Authorization Act for Fiscal Year 1996, is a bill introduced by Senator
Barbara Boxer of California, which would amend titles 10 and 37 of the
United States Code, and terminate the pay and benefits of any member of
the Armed Forces upon conviction of a serious crime; if that conviction
is overturned on appeal, full back pay would be awarded. 141 Cong. Rec.
S. 205 (daily ed. Jan. 11, 1995) (statement of Sen. Boxer). This bill
provision has bipartisan cosponsorship and has the support of the
Secretary of Defense.

At a time when the leadership of both the Executive and Legislative
Branches of Government is advocating a reexamination of the way
Government does business and examining ways in which to reduce the costs
thereof, perhaps questions regarding the policy underlying the provision
of compensation to incarcerated veterans should be raised in a forum
where they can be fully aired and where changes, if warranted, can be
made. Perhaps the time has come to renew the debate which resulted in
the passage of 38 U.S.C. § 5313.

STEINBERG, Judge, concurring: I write separately in response to the
concurring opinion of Judge Ivers. First, I do not want silence to
indicate agreement with the call for reexamination of the payment of any
amount of disability compensation or dependency and indemnity
compensation (DIC) to incarcerated veterans. Second, I wish to include
further pertinent legislative history regarding the provision in order
to clarify the positions and actions of the House and Senate. I express
no view on the issues which Judge Ivers has urged be reexamined.

As to the legislative history, the following is the full excerpt from
the Explanatory Statement prepared by the House and Senate Committees on
Veterans\' Affairs and explained in detail the compromise agreement that
became section 504 of Public Law No. 96-385 in 1980:

Sec. 504. The House bill would amend chapter 55 of title 38, United
States Code, to provide that, during a service-connected disabled
veteran\'s confinement in a Federal, State, or local penal institution
as the result of the veteran\'s conviction of a felony or misdemeanor,
the veteran\'s compensation may not exceed \$60 per month after the
first 60 days. Under this provision, the reduction after 60 days of
incarceration would apply only to veterans rated 20 percent or more
disabled, as long as the 10-percent rate is less than \$60 per month.
Amounts not paid to the veteran could be apportioned to the veteran\'s
dependents. A similar limitation would apply to incarcerated recipients
of DIC and death compensation payments. This provision would be
effective with regard to payments for months after September 30, 1980.
The Senate amendment does not contain a comparable provision.

The compromise agreement provides for a limitation along the lines of
the House bill with the following provisions:

\(1\) The limitation would apply only to persons incarcerated for a
felony conviction.

\(2\) The limitation would apply only to those whose offense is
committed after the date of the enactment of this section and to those
who are incarcerated on October 1, 1980, and awarded compensation or DIC
after that date.

\(3\) The limitation would not apply to a person while he or she is
participating in a work-release program or residing in a half-way house.

\(4\) Apportionments to dependents of veterans would be provided for
under the same terms and conditions as are apportionments made pursuant
to section 3107 of title 38, which governs apportionments in the cases
of non-incarcerated compensation beneficiaries. Apportionments of DIC
would be provided for in a similar manner. However, no apportionment of
the compensation, DIC, or death compensation of a person to whom the
limitation applies could be made to a dependent who is incarcerated for
conviction of a felony.

\(5\) With respect to veterans, the compromise agreement would limit the
monthly amount of compensation payable to veterans rate\[d\] 20 percent
or more disabled to the 10-percent rate (\$54 under the compromise
agreement) and, to veterans rated zero or 10 percent disabled, to half
of the 10-percent rate (\$27). The limitation would thus apply to all
veterans rated as 10 percent or more disabled and to those whose rating
is zero percent but who receive the rate provided under section 314(k)
of title 38. With respect to DIC and death compensation recipients, the
monthly amount payable would be limited to half of the 10-percent rate.

\(6\) No adjudications of total disability based on individual
unemployability would be permissible during the period of the veteran\'s
incarceration.

Under the compromise agreement, this section would be effective on the
date of enactment.

The Committees note that it is their intention that the limitations
provided for under the compromise agreement apply to persons convicted
of felonies and sentenced to imprisonment while they are
institutionalized in a hospital facility on transfer from (but not on
parole from) a penal institution. In cases of prison-to-hospital
transfer, the Committees consider that the hospital is serving as an
agent of the penal institution. As has been noted, the limitation would
not apply during a period during which the individual is participating
in a work-release program even though, under such program, he or she
returns to confinement during evenings or weekends. Restoration to the
full rate would occur upon the person\'s release from incarceration,
including release on parole. At such times, of course, any amount
apportioned to dependents would be appropriately adjusted.

The Committees intend that, at the time action is taken to reduce an
incarcerated veteran\'s or survivor\'s benefits under this section, the
VA provide such veteran or survivor and those to whom apportionments may
be made with notice of these apportionment provisions.

Explanatory Statement, Pub. L. No. 96-385, 96th Cong., 2d Sess. (1980)
(emphasis added), reprinted in 1980 U.S.C.C.A.N. 3323, 3326-27; see also
126 Cong. Rec. S27,014 (Sept. 24, 1980).

The bill which was eventually enacted as Public Law 96-385 was H.R.
7511, which was first passed by the House on July 21, 1980. 126 Cong.
Rec. H18,873 (1980). The counterpart Senate-reported bill, S. 2649, did
not contain a provision with respect to the limitation of compensation
and DIC for incarcerated persons. 126 Cong. Rec. S21,426-30 (Aug. 6,
1980). Neither did the legislation (the text of S. 2649 as reported)
passed by the Senate on August 6, 1980, as an amendment to H.R. 7511 in
lieu of action on S. 2649. 126 Cong. Rec. S21,447 (1980). On September
18, 1980, the House concurred in the Senate amendment with amendments,
which represented a compromise agreement that had been negotiated and
agreed upon by the two Committees on Veterans\' Affairs. 126 Cong Rec.
H26,110 (1980). On September 24, 1980, the Senate concurred in the House
amendment to the Senate amendment. 126 Cong. Rec. S27,008 (1980). In
explaining the Senate Committee\'s reluctant agreement to the compromise
version negotiated between the two Committees, the Chairman of the
Senate Committee stated:

In this connection, I would note that our committee\'s effort to sustain
the Senate position included a September 17 meeting attended by the
distinguished Senator from South Carolina (Mr. Thurmond ), myself, and
the very able chairman (Mr. Montgomery ) and ranking minority member
(Mr. Wylie ) of the House Veterans\' Affairs Committee Subcommittee on
Compensation, Pension, Insurance, and Memorial Affairs.

In that meeting, we . . . argued strongly against the House provisions
in H.R. 7511 limiting the payments of disability compensation and DIC to
veterans and survivors during their incarceration for criminal
convictions. However, much to our regret, we were unable to convince our
House colleagues to accept our position, but I do appreciate their
thorough consideration of our arguments on this point. Although they
would not yield entirely from the House position, they were willing to
make substantial concessions on the provision itself.

. . . .

Mr. President, the House bill, but not the Senate amendment, would have
limited the amount of compensation and DIC benefits payable to persons
who are incarcerated in penal institutions for felony or misdemeanor
convictions. Under the House bill, compensation or DIC, after the first
60 days of incarceration could not exceed \$60 per month.

At the present time, compensation payable to a veteran rated as
10-percent disabled is less than \$60 per month; thus, this provision as
passed by the House would have applied at the present time only to
veterans rated 20 percent or more disabled and those whose rating is
zero percent but who receive the rate provided under section 314(k) of
title 38. Under the House bill, a similar limitation would apply to
incarcerated DIC recipients, and amounts not paid to the veteran or DIC
recipient could be apportioned to the veterans\' dependents and
survivors.

The compromise agreement provides for a limitation that would apply only
to those who are convicted of felonies and only in situations where the
offense is committed after the date of the enactment of this section or,
if before, to those who are incarcerated on October 1, 1980, and awarded
compensation or DIC after that date while incarcerated. The limitation
would not apply at all to a person while he or she is participating in a
work-release program or residing in a halfway house.

With respect to veterans, the monthly amount of compensation payable to
veterans rated 20 percent or more disabled would be limited to the
10-percent rate \-- \$54 under the compromise agreement \-- and to
veterans rated zero or 10-percent disabled, to half of the 10-percent
rate \-- \$27. The limitation would apply to all veterans rated as 10
percent or more disabled and to those whose rating is zero percent but
who receive the rate provided under section 314(k) of title 38. With
respect to DIC and death compensation recipients, the monthly amount
payable would be limited to half of the 10-percent rate.

Most importantly, apportionments to dependents of incarcerated veterans
would be paid under the same terms and conditions as are apportionments
made pursuant to section 3107 of title 38, which governs apportionments
in the cases of nonincarcerated compensation beneficiaries.
Apportionments of DIC would be paid in a similar manner. However, no
apportionment of the compensation or DIC of a person to whom the
limitation applies could be made to a dependent who is incarcerated for
conviction of a felony.

Finally, under these provisions, no adjudications of total disability
based on individual unemployability would be permissible during the
period of the veteran\'s incarceration.

Mr. President, in my view and in the view of other committee members,
the House-passed provision not only raised questions of fundamental
fairness but also threatened basic principles underlying the
service-connected compensation programs. However, with the utmost
reluctance and recognizing the depth of the feelings in the other body
with regard to the issues involved \-- and, as I previously noted,
Senator Thurmond and I personally met with Representatives Montgomery
and Wylie \-- we have reached an accord on the provisions in the
compromise agreement, provisions that I believe are consistent with
notions of fundamental fairness.

I would like to emphasize that the limitation would apply only
prospectively. It would apply generally only to those who commit
felonies after the date of enactment, and no person who is currently
serving a period of incarceration would, as a result thereof, lose any
compensation benefits which he or she has been awarded prior to October
1.

Under the provisions regarding apportionments, there would be absolutely
no discretion on the part of the Administrator to deny or reduce
apportionment \-- because of the felony conviction \-- on any factors
other than those applicable generally to compensation and DIC
apportionments. We believe it is very important to provide for the
legitimate needs of the family of an incarcerated compensation or DIC
recipient.

I also stress both committees\' intention that the VA notify any
affected veteran or DIC recipient of the apportionment provisions and
that the VA also notify each prospective apportionee. It is important to
note the committees\' intentions in this regard because a dependent or
other prospective apportionee may request an apportionment.

In my view, the various modifications of the House provisions reflected
in the compromise agreement go far to overcome many of our committee\'s
objections to this part of the House bill, and I appreciate the
cooperation of the House Members in working out these provisions with
us.

126 Cong. Rec. S27,011, 27,012 (Sept. 24, 1980) (Statement of Sen.
Cranston) (emphasis added).

Senator Thurmond, the senior Republican on the Committee, also expressed
his disappointment with the final compromise in the following statement:

Mr. President, the original legislation by the House contained a
provision that would deny compensation benefits to a veteran once that
veteran became incarcerated, and upon release these benefits would be
reinstated. The Senate bill did not address this issue. However, during
consideration of this matter by the members of both Veterans\'
Committees, to reach a suitable resolution, the very theory and purpose
of service-connected compensation was discussed. The compromise
agreement, Mr. President, is not what I wanted nor was it the position
of the Senate; yet, the House felt strongly on this matter and I believe
this compromise is the best that could have been achieved under the
circumstances.

Mr. President, VA compensation is paid to a veteran for his
service-connected disability. The rate of payment reflects the average
impairment of earning capacity as a result of this disability. It is my
opinion that the economic or social status of the veteran should not
determine his receipt of compensation. If a veteran\'s status in life
was considered to be a factor in the receipt of compensation, then the
argument could be made that a veteran who has a certain income level
should have his compensation reduced. Thus, receipt of compensation
would be a need-based and not totally related to a disability incurred
while in service.

Id. at S27,017 (emphasis added).

I hope that the foregoing will help illuminate the positions of the
House and Senate on the provisions that became 38 U.S.C. § 5313(a)(1).