McFarland v. Dept. Of Veterans Affairs , 446 F. App'x 287 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROY H. MCFARLAND,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7062
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in Case No. 09-3131, Judge Alan G. Lance, Sr.
___________________________
Decided: November 4, 2011
___________________________
DARLA J. LILLEY, Lilley Law Firm, P.L.L.C., of Dainger-
field, Texas, for claimant-appellant.
NELSON R. RICHARDS, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. With
him on the briefs were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
MCFARLAND v. DVA 2
HOCKEY, JR., Assistant Director. Of counsel on the brief
were DAVID J. BARRANS, Deputy Assistant General Counsel,
and TRACY P. WARREN, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, CLEVENGER, and O'MALLEY, Circuit
Judges.
NEWMAN, Circuit Judge.
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 acci-
dent. 1 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 lac-
erations 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 acci-
dent. The initial Army investigation found that there was
“no evidence that subject was intoxicated or guilty of mis-
conduct.” 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 submit-
ted 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.
1 McFarland v. Shinseki, No. 09-3131 (Vet. App. Dec.
13, 2010).
3 MCFARLAND v. DVA
In August 1955, the veteran filed a claim with the Re-
gional 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 con-
scious wrongdoing or known prohibited action,” and rea-
soned 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 en-
gaged 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 evi-
dence and did not find that the Veteran committed a
mere technical violation of police regulations or or-
dinances, but determined that he acted in a reckless
MCFARLAND v. DVA 4
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 Vet-
eran’s driving demonstrated willful misconduct. A
disagreement over how the evidence was weighed or
evaluated does not constitute clear and unmistak-
able error in the rating decision by the RO. The
Board finds that there was no evidence of an unde-
batable 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 adjudica-
tor.
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 unmistak-
able 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.
5 MCFARLAND v. DVA
§3.65 as strict liability. That section, titled “Willful miscon-
duct,” 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 wrongdo-
ing or known prohibited action. (Mere technical vio-
lation of police regulations or ordinances will not
per se constitute “willful misconduct” but are factors
for consideration in light of the attendant circum-
stances.)
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 mis-
conduct. 38 C.F.R. §3.65(a) did not allow for a finding of
willful misconduct on a strict liability basis . . . . But nei-
ther the BVA nor the CAVC included this element in reach-
ing 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 miscon-
duct’ to refer to an act of conscious wrongdoing, involving
elements of intent and voluntariness.”). Section 3.65’s
successor provision, 38 C.F.R. §3.1(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.
MCFARLAND v. DVA 6
1983, 932 F.2d 1475, 1479 (D.C. Cir. 1991) (explaining that
“willful misconduct is the intentional performance of an act
with knowledge that the act will probably result in an injury
or damage, or in some manner as to imply reckless disre-
gard of the consequences of its performance”).
No misinterpretation of §3.65(a) appears in the chal-
lenged rulings. Neither the RO, nor the Board, nor the
Veterans Court interpreted 38 C.F.R. §3.65 as “strict liabil-
ity.” The Veterans Court observed that it “is clear that
§3.65(c) allowed the RO to take the circumstances of the
events into consideration when rendering its decision.” The
Board correctly stated that in “determining whether an act
was due to willful misconduct, generally, the precedents
were to the effect that for an act to be one of willful miscon-
duct it must be ‘malum in se’ or ‘malum prohibitum’ if
involving conscious wrongdoing or known prohibited action,”
and that “[m]ere technical violation of police regulations or
ordinances will not per se constitute willful misconduct but
are factors for consideration in light of the attendant cir-
cumstances.” No. 06-06 708, op. at 8. The Board observed
that the “RO decision in March 1956 weighed the evidence
and did not find that the Veteran committed a mere techni-
cal violation of police regulations or ordinances, but deter-
mined that he acted in a reckless manner.” Id. at 9. The
RO found that the reckless manner in which the veteran
was driving amounted to willful misconduct, acknowledging
that willful misconduct “must involve conscious wrongdoing
or known prohibited action.” No. c-18 917 934. These
findings of fact are not reviewable by the Federal Circuit;
the correct law was recited, and was applied.
Appellant argues that applying the correct law to the
undisputed facts could not lead to a finding of willful mis-
conduct, and thus that the issue may be decided “as a mat-
ter of law,” citing Groves v. Peake, 524 F.3d 1306 (Fed. Cir.
7 MCFARLAND v. DVA
2008). The veteran argues that there is no evidence that he
purposely drove over the speed limit or on the wrong side of
the road. However, the RO’s finding that the veteran was
driving over the speed limit on the wrong side of the road in
a reckless manner, was supported by the evidence; we lack
jurisdiction to reweigh the evidence. See 38 U.S.C.
§7292(d)(2); Conway v. Principi, 353 F.3d 1369, 1372 (Fed.
Cir. 2004).
The veteran also argues that the RO committed clear
and unmistakable error in failing to consider the relevant
“positive law,” citing Yeoman v. West, 140 F.3d 1443 (Fed.
Cir. 1998), where in interpreting the willful misconduct
provision 38 C.F.R. §3.1(n), this court held that the Board
properly referred to state law as an aid to determining
willful misconduct, stating:
In providing that the “mere technical violation” of
“police regulations or ordinances” does not “per se”
constitute willful misconduct, the regulation clearly
implies that the violation of positive authority such
as state statutory or decisional law is relevant to
the consideration of what does constitute willful
misconduct; and even though the “technical viola-
tion of mere ordinances cannot alone support a find-
ing of willful misconduct,” the regulation clearly
contemplates the violation of state penal statutes as
a highly relevant, if not dispositive, consideration.
Id. at 1446. The veteran argues that the Veterans Court
“implicitly found that the Board was not required to consult
old VA or state law when assessing whether the VA appro-
priately applied §3.65 in 1956.” Brief of Appellant at 12.
We agree that such consultation is not required, for Yeoman
held only that the Board did not err in considering the
applicable state law as an aid in the willful misconduct
MCFARLAND v. DVA 8
analysis, it did not establish a rule that state law must be
considered and discussed in all cases. Here, the regional
office and the Board considered the veteran’s state-law
violations as recorded for this accident, and adverted to his
driving over the speed limit and driving on the wrong side of
the road as bases of misconduct. The veteran has not di-
rected us to any facts or law, whose review might be within
our jurisdiction, that would “manifestly change the out-
come” of the prior decision, as is required for a showing of
clear and unmistakable error. See Bustos v. West, 179 F.3d
1378, 1381 (Fed. Cir. 1999).
CONCLUSION
Applying the statutory standard of review, we discern
no error in the decision of the Veterans Court.
Each party shall bear its costs.
AFFIRMED