UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 99-515

ABRAHAM THOMPSON, APPELLANT,

V.

HERSHEL W. GOBER,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY and HOLDAWAY, Judges

ORDER

The appellant, Abraham Thompson, appealed a December 24, 1998, Board of Veterans'

Appeals (BVA or Board) decision that denied him recognition as a former prisoner of war (POW)

for Department of Veterans Affairs purposes. The Court by single-judge memorandum decision

affirmed the December 1998 BVA decision. Thompson v. West, Vet. App. No. 99-515 (May 19,

2000) (mem. dec.). The appellant filed through counsel a motion for panel decision.

The Board is required to provide a written statement of the reasons or bases for its findings

and conclusions on all material issues of fact and law presented on the record; the statement must

be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as

to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527

(1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57

(1990). To comply with this requirement, the Board must analyze the credibility and probative value

of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide

the reasons for itsrejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown,

7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7

Vet.App. 36, 39-40 (1994); Gilbert, supra.

In a recent opinion, the mandate for which was issued after this Court's single-judge

memorandum decision in this case, the U.S. Court of Appeals for the Federal Circuit stated that

38 U.S.C. § 7261(a), (a)(4), and (c) "are consistent with the general rule that appellate tribunals are

not appropriate fora for initial fact finding." Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000).

Thus, this Court "may remand if it believes the [Board] failed to make findings of fact essential to

the decision; it may set aside findings of fact it determines to be clearly erroneous; or it may reverse

incorrect judgments of law based on proper factual findings; 'but it should not simply [make] factual

findings on its own.'" Id. at 1263 (quoting Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714

(1986)).
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In the instant case, the Board erred in failing to consider a 1993 "Former POW Medical

History" report in which the appellant presented material evidence that he had experienced physical

and psychological hardships while being detained in Switzerland during World War II. See

38 U.S.C. § 101(32)(B); 38 C.F.R. § 3.1(y)(2)(i) (1999); Young v. Brown, 4 Vet.App. 106, 109

(1993). In light of Hensley, the Court is compelled to conclude that a remand is necessary here in

order for the Board to consider that evidence in the first instance and to provide an adequate

statement of reasons or bases. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, Gabrielson, Simon, and

Gilbert, all supra.

Upon consideration of the foregoing, it is

ORDERED that the appellant's June 7, 2000, motion for panel decision is granted. The

May 19, 2000, memorandum decision is withdrawn and this order is issued in its stead. It is further

ORDERED that the December 24, 1998, BVA decision is VACATED and the matter is

REMANDED for readjudication consistent with this order.

DATED: November 22, 2000 PER CURIAM.

HOLDAWAY, Judge, dissenting: I respectfully dissent with the holding of the majority for

two reasons. First, I do not believe that the Board erred by failing to specifically reference the 1993

POW report. While the Board is required by statute to give adequate reasons or bases for its

decision, this Court has never held that the Board is required to discuss each and every document

in the record. If every piece of evidence had to be discussed in the Board's decision, that decision

would be as voluminous as the record itself. Some discretion and summarization is necessary and

thus, certain evidence need not be discussed if it would have no impact on the decision. In Soyini

v. Derwinski, 1 Vet.App. 540 (1991), this Court reasoned:

Although the BVA did not articulate the "reasons or bases" for its decision as

distinctively or as clearly as contemplated . . . the Court is able to rule on the merits

of the appeal based on a review of the record. It is true . . . that the reasons or bases

requirement set forth by 38 U.S.C. § 7104(d)(1) and more fully discussed in [Gilbert

v. Derwinski, 1 Vet.App. 49, 56-57 (1990)], is one requiring strict adherence.

However, strict adherence does not dictate an unquestioning, blind adherence in the

face of overwhelming evidence in support of the result in a particular case. Such

adherence would result in this Court's unnecessarily imposing additional burdens on

the BVA and DVA with no benefit flowing to the veteran. This we cannot do. See

38 U.S.C. § 7261(b).

Id. at 546. 
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In this case, the Board adequately summarized its findings as to the factual circumstances

surrounding the appellant's period of internment. The Board's findings were drawn solely from the

appellant's own sworn testimony in which he stated that he had not experienced physical and

psychological abuse. It would serve no purpose for the Board to dishonor this veteran who

indisputably suffered severe hardships for his country during both his combat service and his period

of internment by questioning his veracity in completing the 1993 POW questionnaire. The mere fact

that the Board failed to account for several penmarks in the record simply does not deprive it of a

plausible basis in the record for its decision. Nor can that putative error change the appellant’s own

sworn testimony concerning the circumstances surrounding his period of internment. Thus, I believe

that under the Court's current case law, the Board's decision should be affirmed.

In the alternative, I think the Court should reexamine its standard of review for the adequacy

of the Board's reasons or bases for its decision. The Board's decision does not contain a summary

of all the evidence or record. Rather, the Board discusses only the evidence it finds material to its

decision. The Board's selection of which documents it finds material to discuss is in itself a finding

of fact. Of course, this Court reviews the Board's factual findings under the "clearly erroneous"

standard of review. See, e.g., Gilbert, 1 Vet.App. 49. Under this analysis, I would hold that the

Board's factual finding in selectingwhich evidence to include in its statement of reasons or bases was

not clearly erroneous. The record in question was properly before the Board for consideration but

the Board evidently found that the document was not of such weight as to warrant discussion. The

Board accuratelydescribed and summarized the evidence of record and provided a conclusion which

was supported by a plausible basis in the record. This is classic fact finding to which we must defer.

Apparently, the Board found that the other evidence of record submitted by the appellant which

overwhelmingly contradicted the form in question was more appropriate to discuss and rely upon

in summarizing its findings. Given the nature and form of the other evidence, I cannot conclude that

the Board's selection of documents which it discussed and summarized in the reasons or bases for

its decision and its avoidance of the thorny issue of the accuracy of the 1993 POW report was clearly

erroneous. In sum, I do not believe that the Board erred by failing to account for this piece of

evidence under either the Court's current case law or under the alternate standard I offer in this

dissent.

Second, even if the Board's failure to discuss this piece of evidence constituted "error," I

believe that this error would fall squarely within the confines of nonprejudicial error. 38 U.S.C.

§ 7261(b). Before reaching the issue of whether the Board's alleged error falls under this rule, I

believe that the appellant has presented a genuine issue of whether this Court may still apply this rule

in light of several decisions by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).

The majority apparently believes these cases preclude any review of the facts. The appellant

contends that the Court must remand the matter because the Court is prohibited by statute from

reviewing the 1993 POW report in the first instance. See Hensley v. West, 212 F.3d 1255 (Fed. Cir.

2000). In Hensley, the Federal Circuit cited 38 U.S.C. § 7261(c) to hold that this Court cannot

review the Board's factual findings do novo. Id. at 1263. It further explained:
4

The statutory provisions are consistent with the general rule that appellate tribunals

are not appropriate fora for initial fact finding. Thus, the Supreme Court has held

that when a court of appeals reviews a district court decision, it may remand if it

believes the district court failed to make findings of fact essential to the decision; it

may set aside findings of fact it determines to be clearly erroneous; or it may reverse

incorrect judgments of law based on proper factual findings; "[b]ut it should not

simply make factual findings on its own." 

Id. (citations omitted). Furthermore, the appellant's argument is also bolstered by several recent

Federal Circuit decisions which have abrogated to some degree this Court's interpretation of the rule

of nonprejudicial error. See Elkins v. Gober, _ F.3d _, No. 00-7023 (Fed. Cir. Oct. 13, 2000); Nolen

v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000).

While the appellant is correct in asserting that the Court is prohibited by 38 U.S.C. § 7261(c)

and the recent Federal Circuit decisions from conducting a de novo review of the Board's findings

of material fact, the Court must necessarily examine the facts of the case to reach its ultimate

conclusion as to the presence or absence of prejudicial error. Furthermore, I believe that there are

many situations where the Court must review the facts of the case independent of the Board's

findings in order to fulfill its role as an appellate court. Sometimes, there is a fine line between

conducting a trial de novo and fulfilling this Court's statutory responsibilities to adjudicate an appeal.

In short, this Court must, in accordance with the mandate of Congress, review the Board's fact

finding. To review the Board's fact finding is not fact finding in and of itself.

Since its inception, this Court has found it necessary to engage in fact finding on issues in

certain instances, especially on issues which could not be determined by the Board in the first

instance. One of the most common instances where the Court is required to find facts in the first

instance is on the issue of nonprejudicial error. See 38 U.S.C. § 7261(b). In these situations, the

Board obviously cannot render its own factual findings in the first instance, otherwise the error

would have been obviated. Nonetheless, the Court is required by statute to consider whether the

Board's fact finding was prejudicial to the appellant. That can only be done by looking at the error

in the context of the entire record and making a qualitative judgment that the error did or did not

have an impact on the decision. In short, the Court must "weigh" the evidence in its totality. In

some cases, such as the present appeal, the directive in section 7261(b) to "take due account of the

rule of prejudicial error" simply cannot be carried out without so doing. To fail to do so would be

to read the prohibition against de novo fact finding in section 7261(c) to negate the requirement of

section 7261(b), which the Court may not do. See Saunders v. Secretary, HHS, 25 F.3d 1031 ("it

is a settled rule of statutory construction that a statute is to be construed in a way which gives

meaning and effect to all of its parts" (citing United States v. Nordic Village, Inc., 503 U.S. 30, 36

(1992))).

While I agree with the Federal Circuit that this Court is not in the business of conducting

trials de novo, there are instances where the Court must necessarily engage in some fact finding on

issues which could not have been presented to the Board, including the issue of harmless error.
5

Whatever the Federal Circuit meant in Hensley, it could not possibly have meant to repeal 38 U.S.C.

§ 7261(b). It has no power to do so. The appellant's arguments, which flow logically from the

Federal Circuit's analysis would, in effect, interpret Hensley to do just that. Nonetheless, I believe

that this Court must interpret that statute consistently with Congress's full intent and meaning in

order for this Court to perform its role effectively.

Having decided that 38 U.S.C. § 7161(b) retainsits validity after the recent Federal Circuit's

decisions, I will now turn to my interpretation of the meaning of that statute. Section 7261(b) states:

"In making determinations under subsection (a) of this section, the Court shall take due account of

the rule of prejudicial error." Although the Court has applied 38 U.S.C. § 7261(b) to hold that errors

of the Board are not prejudicial, the Court has never defined what constitutes nonprejudicial error

generally, but rather has limited its discussion to the facts of the particular case at hand. Moreover,

the Federal Circuit has not yet discussed this statute in connection with veterans benefits cases.

Although I am mindful of the "uniquely pro-claimant" context of the veterans benefit system, see

Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998), there is certainly nothing in the statutory

framework indicating that the rule of nonprejudicial error in the context of veterans benefits cases

is any different than it is in any other federal appellate court, where it is referred to as the harmless

error rule. 

The "rule of prejudicial error" referred to in 38 U.S.C. § 7261(b) is derived from Rule 61 of

the Federal Rules of Civil Procedure. This rule states in part, "No error . . . by the court . . . is

ground[s] . . . for setting aside a verdict or for vacating, modifying, or otherwise disturbing a

judgment or order, unless refusal to take such action appears to the court inconsistent with

substantial justice." In describing the purpose behind this rule, the U.S. Supreme Court has stated:

We have also come a long way from the time when all trial error was presumed

prejudicial and reviewing courts were considered citadels of technicality. The

harmless-error rules adopted by this Court and Congress embody the principle that

courts should exercise judgment in preference to the automatic reversal for "error"

and ignore errors that do not affect the essential fairness of the trial.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 551, 553 (1984) (citations and internal

quotation marks omitted). As for interpreting the rule itself, the Supreme Court held, "[I]f one

cannot say, with fair assurance, . . . that the judgment was not substantially swayed by the error, it

is impossible to conclude that substantial rights were not affected." Kotteakos v. United States, 328

U.S. 750, 765 (1946). 

In reviewing harmless (or nonprejudicial) error in this context, the Federal Circuit has held

that an error is not harmless when it "reasonably affected the outcome of the case." ATD Corp. v.

Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). Other circuit courts have relied on similar tests.

See Jordan v. Medley, 711 F.2d 211 (D.C. Cir. 1983) (holding that the harmless error "inquiry

involves an assessment of the likelihood that the error affected the outcome of the case"); see also
6

Schrand v. Federal Pacific Elec. Co, 851 F.2d 152, 157 (6th Cir. 1988) (applying Jordan standard).

In further, the consensus of federal courts also agree that:

Application of this test is highly sensitive to the unique context of the particular case,

including the one-sided or closely balanced nature of the evidence bearing upon the

issue which the error arguably affected, see Corona v. Pioneer Life Ins. Co., 357 F.2d

477, 480 (5th Cir. 1966); and the centrality of that issue to the ultimate decision, see

Charter v. Chleborad, 551 F.2d 246, 249 (8th Cir. 1977).

Jordan, 851 F.2d at 157; see also ATD, 159 F.3d at 549 (noting that a number of factors have guided

the court in their determinations of whether error is harmless, including whether the evidence in

question was a primary component of the case); Schrand, 851 F.2d at 157 (citing Jordan). Again,

the policy behind the harmless error rule is clear:

These rules are based on the sensible concept that a new trial should not be granted

because of an error that inflicted no harm. Perfection is an aspiration, but the failure

to achieve it in the judicial process, as elsewhere in life, does not, absent injury,

require a repeat performance.

Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).

In translating that guidance into the veterans benefits context, the Court must be cognizant

of the lower burden of proof that claimants seeking veterans benefits enjoy over civil litigants.

While in other civil cases, a party must generally prove its case by a preponderance of the evidence,

in veterans appeals, the claimant is granted the "benefit-of-the-doubt" standard of review. See 38

U.S.C. § 5107(b) ("When . . . there is an approximate balance of positive and negative evidence

regarding the merits of an issue . . . the benefit of the doubt in resolving each issue shall be given to

the claimant.")

Applying this analysis to the facts of this case, it is not reasonable to conclude that had the

Board accounted for this piece of evidence, its decision would have been different in the face of

overwhelming evidence to the contrary. In my opinion, if it is error, it is exactly the type of technical

error contemplated by the Supreme Court in McDonough and applied to this Court by Congress in

enacting 38 U.S.C. § 7261(b), which does not merit a "repeat performance" by the Board. I n m y

opinion, the issue before this Court is whether the Board's failure to discuss the August 1993 POW

report was prejudicial to the appellant. The issue before the Board was whether the circumstances

the appellant endured during his period of internment in Switzerland were comparable to the

circumstances that POWs endured while incarcerated by enemy governments. "Such circumstances

include, but are not limited to, physical hardships or abuse, psychological hardships or abuse,

malnutrition, and unsanitary conditions." 38 C.F.R. § 3.1(y)(2)(i). In the 1993 POW report, the

appellant checked the appropriate box to indicate that he was subjected to physical and

psychological abuse as well as extreme exposure to the cold. His penmarks went unsubstantiated

and were completely contradicted by his own sworn testimony. In March 1984, the appellant
7

completed a POW report in which he stated that he was adequately provided and that he did not

suffer from any physical or psychological abuse. In July 1988, he testified that he was interrogated

by Swiss officials but did not state that he was subjected to privation or abuse. In July 1998, the

appellant testified at a personal hearing and did not state that he was subjected to either privation or

abuse. In August 1998, the appellant testified that he had been subjected to some psychological

abuse but noted that he received adequate food and medical attention. He also did not report any

physical abuse. In reaching its decision, the Board sensibly did not get into the question of which

of the appellant's 1993 POW report was truthful. Rather, the Board relied on the appellant's most

recent testimony which was in the more descriptive narrative form rather than a "check the box"

format of the POW reports to conclude that the circumstances surrounding his period of internment

were not comparable with that of POWs.

After a review of the record on appeal, I agree with the Board that the overwhelming nature

of the evidence on appeal supports the Board's finding that the circumstances of the appellant's

period of internment did not compare to those of a POW camp, and therefore, any failure of the

Board to discuss the 1993 POW report was nonprejudicial. Cf. Soyini, 1 Vet.App. at 546 (Court

affirmed Board's decision despite error "in face of overwhelming evidence in support of the result

in a particular case.") As the Board found, there is no evidence of record that the appellant suffered

from physical hardships or abuse, malnutrition, or unsanitary conditions. He testified that he was

confined to the town of Daubos, but that he ate the same food as and lived comparably to the Swiss

residents. Even if the Board had considered the August 1993 POW report in which he checked the

box to indicate that he was subjected to physical and psychological abuse, there simply is no

likelihood that this evidence would convince the Board that the hardships experienced by the

appellant during his period of internment were comparable to the hardships experienced by a POW

in the face of the remainder of the evidence, all of which came from the appellant. Moreover, the

appellant testified on four other occasions that he did not receive any physical abuse and that his

psychological abuse merely consisted of a questioning by Swiss officials after he was shot down.

This questioning, as well as the detention, was required by international law from a neutral nation

when interning a combatant of a warring nation in a conflict in which they (the Swiss) were neutral.

In conclusion, even if the Board erred in failing to specifically reference the 1993 POW report, I

would that this error fits squarely within the meaning of nonprejudicial error.

For these reasons, I cannot join in the holding of the majority.