William H. Wanless, Jr. v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 01-970

WILLIAM H. WANLESS, JR., APPELLANT ,

V.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.

ORDER

The appellant appeals pro se an April 16, 2001, Board of Veterans' Appeals (Board or BVA)
decision in which the Board denied him payment of full disability compensation during his period
of incarceration. Record at 3, 6. The appellant and the Secretary each filed a brief, and the appellant
filed a reply brief. The parties also each filed a supplemental memorandum and a response pursuant
to Court orders. For the reasons that follow, the Court will vacate the April 2001 Board decision and
remand the matter for proceedings consistent with this order.

In the instant case, the pivotal question is whether the appellant "is incarcerated in
a . . . State . . . penal institution." 38 U.S.C. § 5313(a)(1). Specifically, the issue to be addressed is
the relationship between the State of Oklahoma and the Davis Correctional Facility (DCF) or the
Corrections Corporation of America, i.e, whether based on that relationship the DCF is a
"State . . . penal institution" under 38 U.S.C. § 5313(a)(1). Although the Board concluded that the
appellant is "incarcerated at a [S]tate prison" (R. at 5), the Board has not yet addressed the material
issue whether DCF is a "State . . . penal institution" within the meaning of section 5313 and the issue
regarding the relationship between the entities involved. Given that the resolution of those issues
may involve very specific factual determinations regarding contracts and other documents that are
best for the Board to make in the first instance, the Court concludes that it is premature for the Court
to address this matter. See Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (court of
appeals may remand if it determines that lower tribunal failed to make finding of fact essential to
decision); see also 38 U.S.C. § 7104(d)(1); Fallo v. Derwinski, 1 Vet.App. 175, 177 (1991) ("[T]he
Board's finding[s] and conclusions in this case are so vague that it is impossible to review them.");
Sammarco v. Derwinski, 1 Vet.App. 111, 113-14 (1991) ("Whether the BVA's ultimate conclusions
are correct or not, . . . the incomplete nature of the decision below does not permit proper review by
this Court.").

On consideration of the foregoing, it is
 ORDERED that the April 16, 2001, Board decision is VACATED and the matter is
REMANDED for further proceedings consistent with this order.

DATED: September 13, 2004 PER CURIAM.

STEINBERG, Judge, concurring: The pro se appellant appeals an April 16, 2001, Board of
Veterans' Appeals (Board or BVA) decision in which the Board denied the appellant's claim for
entitlement to the payment of full Department of Veterans Affairs (VA) disability compensation
while incarcerated. Record (R.) at 3, 6. For the reasons that follow, I concur in the Court's order
vacating the April 2001 Board decision and remanding the matter.

I. Background

The appellant served on active duty in the U.S. Army from September 1979 to November
1981. R. at 9. Subsequently, VA granted service connection to the appellant for enucleation of the
right eye, chronic lumbar strain with degenerative disc disease, tinnitus, high-frequency hearing loss,
and residuals of a cervical strain. R. at 15, 23. Since November 1981, he has been entitled to special
monthly compensation (SMC), under 38 U.S.C. § 1114(k), based upon the loss of one eye, and he
has had a 60% combined service-connected rating from December 1, 1986. R. at 15-16, 21-23; see
38 U.S.C. § 1114 (setting forth ratings for VA disability compensation and SMC); 38 C.F.R. § 4.25
(2003) (regarding computation of combined ratings). In January 1993, a VA regional office (RO)
received, inter alia, a copy of a January 15, 1993, Judgment and Sentence rendered by the District
Court of Payne County, Oklahoma (County District Court). R. at 24-32. That document reflects that
the appellant had been convicted of a felony and that the County District Court had sentenced the
appellant to life imprisonment without parole. R. at 31. That document further reflects that the term
of the appellant's imprisonment was to "begin at and from the delivery of the [appellant] to the
[Oklahoma] Department of Corrections [(ODOC)] at the Lexington Assessment and Reception
Center." Ibid. The County District Court ordered the ODOC to "detain [the appellant] according
to [its] judgment, sentence[,] and order." Ibid. Based on this document, the RO, in February 1993,
notified the appellant that VA had proposed to reduce his benefits, effective March 16, 1993, in light
of his incarceration for the conviction of a felony committed after October 7, 1980. R. at 34. In June
1993, he was notified by the RO that his disability compensation had been reduced, effective
March 16, 1993. R. at 36-37.

Since that time, the appellant several times has challenged the validity of VA's reduction of
his disability compensation and VA has continued to deny the appellant's entitlement to the amount
of monthly benefits he had received before March 16, 1993. See R. at 46-85; see also Wanless v.
Veterans Admin., No. 95-5177, 1995 U.S. App. LEXIS 32074 (10th Cir. Nov. 16, 1995). In a May
28, 1997, decision, the BVA rejected the appellant's argument that 38 U.S.C. § 5313 (reducing to
10% rate disability compensation payments for individuals incarcerated in excess of 60 days in
"Federal, State, or local penal institution" for felony conviction) was unconstitutional, and the Board
determined that the reduction of the appellant's benefits, from those concurrent with a 60% disability
rating to those concurrent with a 10% disability rating, effective from March 1993, based on his

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incarceration for a felony conviction, was proper. R. at 79-85. (Neither the Court's docket nor the
record on appeal (ROA) reflects an appeal from that decision.) In April 1998, the RO received
correspondence from the appellant; he argued that he was then entitled to the entire amount of his
disability compensation because he was no longer incarcerated in a State penal institution in that he
had been transferred to the Davis Correctional Facility. R. at 87-89. He asserted that "[t]he Davis
Correctional Facility (DCF) is administered[] and owned[] by the Corrections Corporation of
America (CCA)." R. at 87. He further argued that "CCA is a large, for-profit company [that is] set
up to run prisons, [which are] not closely monitored by [S]tate officials." Ibid. Specifically, the
appellant contended that DCF is not a State penal institution and that the legislative intent of
38 U.S.C. § 5313 does not support reducing his disability compensation. R. at 87, 89.

In March 1999, the RO disallowed the appellant's April 1998 claim for the reinstatement of
his "full service[-]connected disability compensation". R. at 91. He timely filed a Notice of
Disagreement in which he argued that 38 U.S.C. § 5313 does not apply to him because he is not
confined in a State penal institution. R. at 93. The ROA contains an internal memorandum with
both CCA and DCF on the letterhead, which memorandum reflects that the appellant is an inmate.
R. at 96. (It appears from the ROA and the parties' pleadings that February 27, 1998, is the date on
which the appellant was transferred to DCF. See R. at 87-89, 91, 98, 110-11, 124; Secretary's Brief
(Br.) at 5-7.) On appeal to the Board, the appellant reiterated his prior arguments and further argued
that "[h]istory does not reveal a tradition of 'like status' between private prisons and Federal and State
[f]acilities." R. at 118-25, 132-39.

In the decision on appeal, the Board found that the appellant, in January 1993, was sentenced
by the County District Court to life imprisonment without parole for the commission of a felony and
that he "is still in prison under the life sentence imposed." R. at 2. The Board concluded that the
appellant was not entitled to payment of the entire amount of his disability compensation while
incarcerated for the commission of a felony. R. at 5. In so concluding, the Board, inter alia,
reasoned:

The mere fact that the State of Oklahoma has decided to allow for the private
management of a penal facility under a contract does not serve to remove the
[appellant's] felony conviction, nor does it serve to alter his status as a prisoner of the
State of Oklahoma. It is this status as a convicted felon in a [S]tate prison that
absolutely prohibits the payment of full disability compensation.

R. at 5 (emphasis added). The ROA does not contain a copy of any such contract as referred to
above by the Board. The Board further stated:

[The appellant's] claim requires determining whether or not he is still incarcerated as
the result of a felony conviction. If so, the law presents an absolute prohibition
against the payment of his full disability compensation. The evidence shows that he

3
 is still incarcerated at a [S]tate prison as a result of his January 1993 conviction and
sentencing for a felony offense.

Ibid. (emphasis added).

On appeal to this Court, the appellant, in his brief and reply, further reiterates his contention
that section 5313 no longer applies to him. Appellant's Br. at 2-5. In support of his argument, the
appellant asserts that Oklahoma law provides that "'[c]orrectional facilities owned or operated by
private prison contractors shall not be deemed to be within the [ODOC] or other [S]tate agency.'"
Id. at 2 (quoting OKLA . STAT . tit. 57, § 563 (2002) (Correctional facilities–Creation or
construction–Approval of Legislature–Inmate work centers–Location)). He further argues that the
Board did not address fully his arguments. Id. at 4. With respect to that argument, the Secretary
concedes that the Board "did not appropriately note the facts in this case" but argues that the "Court
should take account of the rule of prejudicial error." Secretary's Br. at 12-13. The Secretary further
concedes the novelty of the issue raised in this case and argues:

[T]he fact [that] the [a]ppellant is no longer housed in a penal institution managed
by the State[ of Oklahoma] does not negate that the State has legal possession of the
[a]ppellant and public monies fund his maintenance. The contractual relationship
established between CCA and the State of Oklahoma essentially places CCA in the
position of a [S]tate facility, with respect to the intended purpose of § 5313. . . .

....

The Secretary does not dispute that a private[-]management corrections
company manages the facility in which the [a]ppellant resides (as shown by the
[ROA]). . . . Hence, the Court has been called upon to resolve the issue of whether
by virtue of the contractual arrangement between CCA and the State of Oklahoma,
the [a]ppellant continues to be incarcerated in a State penal institution, as
contemplated by the controlling statute.

....

The Secretary respectfully submits that the [a]ppellant advocates a "literal"
reading of this statute that is inconsistent with congressional intent. The course the
[a]ppellant charts in this appeal would lead to an "absurd" result.

Secretary's Br. at 8-10 (emphasis added). He thus requests that the Court affirm the Board decision.
Id. at 14. The Secretary also requests that "the Court . . . take judicial notice of information available
on the CCA Web site, [which] . . . confirm[s] the contractual relationship between CCA and the
State of Oklahoma." Id. at 11 n.1. In his reply, the appellant argues, inter alia, that section 5313 is
ambiguous and that Congress enacted other similarly crafted statutes, such as 42 U.S.C. § 402(x)

4
(suspending Social Security benefits to prisoners confined, inter alia, in "jail, prison, or other penal
institution or correctional facility"), without such ambiguity. Appellant's Reply Br. at 5. Thus, the
appellant argues that the Court should resolve the ambiguity in section 5313 in his favor. Id. at 6.

The Court has issued two orders in this case for supplemental submissions from the parties.
On June 16, 2004, the Court directed the Secretary to file with the Court (1) any appropriate
document(s) reflecting the relationship between the State of Oklahoma and the DCF or the CCA and
(2) a supplemental memorandum addressing whether the Court may take judicial notice of any such
document(s). The Court further directed that the appellant may file a supplemental memorandum
addressing this issue. The parties each filed responses to the Court's order. Attached to his July 1,
2004, supplemental memorandum, the Secretary provided copies of certain pages of a contract
between CCA and the DCF and the ODOC. Secretary's Supplemental Memorandum, Exhibit E. In
a July 20, 2004, order, the Court noted that the contract was incomplete and did not cover the entire
period at issue. The Court, therefore, directed the Secretary to file with the Court "contracts, state
attorney general opinions, or other complete documents that reflect that, from the time of the
appellant's transfer to the DCF, the DCF has constituted a 'State . . . penal institution' within the
meaning of 38 U.S.C. § 5313(a)(1) or other arrangement." Order at 2 (quoting 38 U.S.C.
§ 5313(a)(1)). The Court further directed the Secretary alternatively to advise the Court that no such
documents exist. On July 26, 2004, the Secretary filed a response, attaching documents that he
asserts demonstrate that DCF constituted a "State . . . penal institution" from February 1998, when
the appellant was transferred to the DCF. Response at 2. On August 9, 2004, the appellant
submitted a reply to the Secretary's response.

II. Analysis

The appellant argues that the Court should interpret 38 U.S.C. § 5313 as inapplicable to him
because DCF assertedly is not a "Federal, State, or local penal institution", 38 U.S.C. § 5313(a)(1),
and because Congress' legislative intent in enacting this provision purportedly does not support the
reduction of his disability compensation. The Secretary contends that "the appellant continues to be
incarcerated in a State penal institution, as contemplated by the controlling statute" or, in the event
that it is not deemed a State penal institution, the appellant's reading of section 5313 as being
inapplicable to him is inconsistent with the provision's legislative intent and would lead to an absurd
result. Secretary's Br. at 9-10.

A. Plain Meaning of 38 U.S.C. § 5313(a)(1)

The Court reviews questions of statutory interpretation de novo; in interpreting a statute, the
Court examines the language of the statute and, "'if the intent of Congress is clear, that is the end of
the matter.'" Cacatian v. West, 12 Vet.App. 373, 376 (1999) (quoting Gardner v. Brown, 5 F.3d
1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994)); see Trilles v. West, 13 Vet.App. 314, 321 (2000)
(en banc). "However, if 'it is clear that . . . the literal import of the text . . . is inconsistent with the
legislative meaning or intent, or such interpretation leads to absurd results,' the Court will not reach

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that result." Trilles, supra (citation omitted); see Holliday v. Principi, 14 Vet.App. 280, 285 (2001)
(citing precedent regarding need to avoid absurd result when interpreting statute), overruled on other
grounds in part by Dyment v. Principi, 287 F.3d 1377, 1385 (Fed. Cir. 2002), and Bernklau v.
Principi, 291 F.3d 795, 806 (Fed. Cir. 2002).1

In pertinent part, section 5313 of title 38, U.S. Code, presently provides:

Limitation on payment of compensation and dependency and indemnity
compensation [(DIC)] to persons incarcerated for conviction of a felony.

(a)(1) To the extent provided in subsection (d) of this section, any person
who is entitled to compensation or to [DIC] and who is incarcerated in a Federal,
State, or local penal institution for a period in excess of sixty days for conviction of
a felony shall not be paid such compensation or [DIC], for the period beginning on
the sixty-first day of such incarceration and ending on the day such incarceration
ends, 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) of this title; . . .

....

(d) The provisions of subsection (a) of this section shall apply (1) with
respect to any period of incarceration of a person for conviction of a felony
committed after October 7, 1980, and (2) with respect to any period of incarceration
on or after October 1, 1980, for conviction of a felony of a person who on October
1, 1980, is incarcerated for conviction of such felony and with respect to whom the
action granting an award of compensation or [DIC] is taken on or after such date.

38 U.S.C. § 5313 (boldface-italic emphasis added); see 38 U.S.C. § 1114(a) (setting forth VA
disability compensation for 10% rating). In the instant case, the plain language of section 5313
provides that a person entitled to compensation who is incarcerated in a "Federal, State, or local
penal institution" in excess of 60 days (for conviction of a felony) is not entitled to the entire amount
of his or her compensation beginning on the 61st day of incarceration but is entitled only to the rate
payable for a 10% disability rating (if, as here, the veteran has a service-connected disability rated

1
See also United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Timex V.I., Inc. v. United
States, 17 F.3d 879, 886 (Fed. Cir. 1998); Simmons v. Principi, 17 Vet.App. 104, 114 (2003); Thayer v. Principi,
15 Vet.App. 204, 210 (2001);Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Faust v. West, 13 Vet.App. 342, 350
(2000); Davenport v. Brown, 7 Vet.App. 476, 483-84 (1995); Conary v. Derwinski, 3 Vet.App. 109, 111-12 (1992) (per
curiam order) (Steinberg, J., concurring).

6
at 20% or more). 38 U.S.C. § 5313(a)(1). On its face, this statutory reduction in compensation
applies only to those persons incarcerated in a "Federal, State, or local penal institution" and does
not apply to persons entitled to compensation who are not so incarcerated. Ibid. Accordingly, in my
view, the plain meaning of section 5313 does not require a reduction of compensation unless the
person entitled to compensation is incarcerated in a "Federal, State, or local penal institution". Ibid.;
see Cacatian, supra.

B. Parties' Other Contentions
1. DCF as a State Penal Institution

Here, neither party has contended that the appellant is incarcerated in a Federal or local penal
institution. Thus, at issue is whether he is incarcerated in a State penal institution. The appellant
contends that DCF is a privately owned and operated institution and thus not a State penal
institution. The Secretary contends, echoed by our dissenting colleague, that DCF, which apparently
is owned and operated by CCA, is a State penal institution "by virtue of the contractual arrangement
between CCA and the State of Oklahoma" and that the BVA decision should be affirmed.
Secretary's Br. at 9, 14.

In that regard, 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) (Board "shall
include . . . a written statement of the Board's 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");
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, 56-57 (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 persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert,
supra. A failure to comply with this requirement creates an inadequate record that generally will
frustrate effective judicial review of BVA decisions. See Gilbert, supra.

In the instant case, the Board failed to address the appellant's arguments below as to whether
he currently is "incarcerated in a . . . State . . . penal institution." 38 U.S.C. § 5313(a)(1). Although
the Secretary, as well as our dissenting colleague, attempts to undertake the Board's obligation to
provide an adequate statement of reasons or bases, see Secretary's Br. at 11-13, this Court's
jurisdiction extends to "review[ing] decisions of the Board", 38 U.S.C. § 7252(a). Hence, the Court's
role is to review whether the Board in its decision, rather than the Secretary in his brief, provided an
adequate statement of reasons or bases. Although in its April 2001 decision the Board made an ipse
dixit conclusion twice that the appellant is "still incarcerated at a [S]tate prison" (R. at 5), such a
conclusion does not address the material issue, i.e., whether DCF (which is apparently a privately
owned and operated facility) is a "State . . . penal institution" within the meaning of section 5313.

7
Indeed, in reaching that conclusion, the Board did not discuss or analyze any state laws or any
contractual provisions that may bear on that determination. See Gilbert, 1 Vet.App. at 57 (noting
that "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").

In this regard, the appellant in his brief directs the Court to section 563 of title 57, Oklahoma
Statutes, to support his contention that DCF is not a "State . . . penal institution", 38 U.S.C.
§ 5313(a)(1). See Appellant's Br. at 2, 4 (asserting that DCF is privately owned and operated facility
and that OKLA . STAT . tit. 57, § 563, provides that "[c]orrectional facilities owned or operated by
private prison contractors shall not be deemed to be within the [ODOC] or other [S]tate agency").
However, in its entirety, that Oklahoma statutory section provides:

A. Except as otherwise authorized by [s]ection 183 of [t]itle 73 of the
Oklahoma Statutes, before any correctional facility other than an inmate work center
as authorized in subsection B of this section or an inmate drug offender work camp,
whether within the [ODOC] or within any other [S]tate agency, may be created or
any construction performed which may significantly increase, extend or expand the
present facility, such creation or construction shall be approved by the Legislature.
Correctional facilities owned or operated by private prison contractors shall not be
deemed to be within the [ODOC] or other [S]tate agency.

B. The [ODOC] is hereby authorized to establish inmate work centers in
locations where a need for labor to conduct public work projects is determined. The
[ODOC] shall select the inmate work center locations based on objective
comparisons of interested communities in accordance with procedures and criteria
established by the [ODOC]. The procedures, selection criteria and decision case
analysis shall be made available to the public upon request.

C. No [S]tate, county or municipal correctional facility including any inmate
work center, inmate drug offender work camp, inmate halfway house, inmate
transitional living center and any other place where [S]tate, county or municipal
inmates are housed shall be located within one thousand (1,000) feet of any public
or private elementary or secondary school nor within two thousand five hundred
(2,500) feet of any state training school. The provisions of this subsection shall not
apply to any inmate work center, inmate drug offender work camp, inmate halfway
house, inmate transitional living center and any other place where [S]tate, county or
municipal inmates are housed established prior to May 20, 1994. Provided[] that the
provisions of this subsection shall not apply to [S]tate, county, or municipal
correctional facilities that are granted permission to operate within the areas restricted
by this subsection by a majority vote of the following entities:

8
 1. The district board of education of each school district with an
affected school; and

2. The governing body of each affected private school.

D. In any county with a population of two hundred fifty thousand (250,000)
or more, as determined by the latest Federal Decennial Census, the [ODOC] shall not
cause, permit or require any inmate in the custody of the [ODOC] or cause, permit
or require any offender under the supervision of the [ODOC] to enter, remain or be
present in any [ODOC] facility located within one thousand (1,000) feet of a private
or public elementary or secondary school, or on the grounds of such a facility, for any
activities involving or relating to processing, training, instructing, interviewing,
counseling, reporting, conferring, imposing discipline, reviewing or adjudicating or
any correctional function requiring or permitting the presence of the offender, except
offenders may be employed in construction, maintenance or janitorial activities in or
on the structures or grounds while under supervision of a correctional employee. The
provisions of this subsection shall not apply to any facility established or acquired by
the [ODOC] prior to May 20, 1994.

OKLA . STAT . tit. 57, § 563 (2003) (emphasis added).

Although there is language in section 563(A) that may appear to support the appellant's
contention that DCF is not a "State . . . penal institution", 38 U.S.C. § 5313(a)(1), the crux of that
section as a whole appears to be that an Oklahoma State agency must obtain approval from that
State's legislature before building, renovating, or relocating a prison but that private prisons do not
require such approval. I note further that, for purposes of the State of Oklahoma's prohibition against
locating correctional facilities within specified distances of certain schools, subsection C of section
563 appears to suggest that a private prison may be deemed a State, county, or municipal correctional
facility depending on whether such facility houses "[S]tate, county, or municipal inmates", OKLA .
STAT . tit. 57, § 563(C), as contrasted with subsection D, which appears to be limited in its reach to
only certain ODOC facilities.

Moreover, section 502 of title 57, Oklahoma Statutes, in pertinent part, defines "[p]rivate
prison contractor[s]" as follows:

a. [A] non[-]governmental entity or public trust which, pursuant to a
contract with the [ODOC], operates an institution within the [ODOC] other than a
halfway house or intermediate sanctions facility, or provides for the housing, care,
and control of inmates and performs other functions related to these responsibilities
within a minimum or medium security level facility not owned by the [ODOC] but
operated by the contractor . . . .

9
OKLA . STAT . tit. 57, § 502(7)(a) (2003) (emphasis added). I note that the Oklahoma Statutes provide
numerous standards to govern contracts between the State and private prison contractors. In this
regard, section 561(A) of title 57, Oklahoma Statutes, provides in pertinent part:

A. The [ODOC] is hereby authorized to provide for incarceration,
supervision, and residential treatment at facilities other than those operated by the
[ODOC]. Services offered for persons under the custody or supervision of the
[ODOC] are to include, but not be limited to, housing, alcoholism or drug treatment,
mental health services, nursing home care, or halfway house placement. Such
services must meet standards prescribed and established by the State Board of
Corrections for implementing such a program, including but not limited to standards
concerning internal and perimeter security, discipline of inmates, educational and
vocational training programs, employment of inmates, and proper food, clothing,
housing, and medical care.

OKLA . STAT . tit. 57, § 561(A) (2003). Further, subsection B of section 561.1 provides, in pertinent
part:

B. Any contract between the [ODOC] and a private prison contractor,
whereby the contractor provides for the housing, care, and control of inmates in a
nondepartmental facility operated by the contractor, shall contain, in addition to other
provisions, terms and conditions:

1. Requiring the contractor to provide said services in a facility
which meets accreditation standards established by the American
Corrections Association [(ACA)];

2. Requiring the contractor to receive accreditation for said
facility from the [ACA] within three (3) years of commencement of
operations of the facility;

3. Requiring the contractor to obtain written authorization from
the governing board of any municipality in which the facility is to be
located, or if the facility is not to be located within a municipality,
written authorization from the board of county commissioners of the
county in which the facility is to be located; and

4. Granting the [ODOC] the option at the beginning of each fiscal
year pursuant to an agreement, to purchase any such facility, with or
without inventory or other personal property, at a predetermined
price, which shall be negotiated and included in a schedule or a
formula to be contained in the original agreement.

10
OKLA . STAT . tit. 57, § 561.1(B) (2003); see OKLA . STAT . tit. 57, § 561(M)(4) (2003) (private prison
contractors must demonstrate "ability to comply with applicable court orders and corrections
standards"). In addition, Oklahoma State courts have held that confinement in a privately owned
prison that has a contract with the ODOC "does not alter [a person's] status as a prisoner" for
purposes of relief pursuant to the Fair Labor Standards Act of 1938 (FLSA), ch. 676, § 1,
52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201, et seq.). Washington v. Cornell Corr., Inc.,
30 P.3d 1162, 1164 (2001) (inmate not entitled to FLSA protections because his relationship with
privately owned corrections facility located in Oklahoma was based on his status as prisoner; thus,
no employer-employee relationship existed). In connection with the remand directed by the Court
in its instant order, the Board, in determining whether DCF may be deemed a "Federal, State, or local
penal institution", 38 U.S.C. § 5313(a)(1), should consider the above-mentioned statutory provisions
and caselaw, as well as any other potentially applicable law. See Schafrath v. Derwinski,
1 Vet.App. 589, 593 (1991) (holding that Board is required to consider, and discuss in its decision,
all "potentially applicable" provisions of law and regulation).

Here, in regard to any relationship between the ODOC and DCF or CCA, the ROA does not
contain any contract or other document reflecting an agreement between any of these entities
addressing, inter alia, DCF's or CCA's status as a private prison contractor within the meaning of
OKLA . STAT . tit. 57, § 502(7)(a), or any contract or document authorizing the transfer of the
appellant to DCF. Although the Secretary requests that the Court take judicial notice of CCA's
Web site as "confirming the contractual relationship between CCA and the State of Oklahoma"
(Secretary's Br. at 11 n.1), any finding of fact as to the existence and/or significance of a contract
between ODOC and DCF or CCA "is the province of the BVA" in the first instance, because the
Court's scope of review is limited to the record of proceedings before the Secretary and the Board.
Falk v. West, 12 Vet.App. 402, 405 (1999); see 38 U.S.C. §§ 7104(a), 7252(b).

Regarding the issue of the contractual relationship between the entities involved, I note that
in response to this Court's July 20, 2004, order, the Secretary submitted, among other things, the
following documents: (1) "Annual Renewal Lease and Operation Agreement" dated "as of" July 1,
1996, between Holdenville Industrial Authority (which apparently owned DCF) and ODOC, for a
period of one year and providing for 18 one-year renewal periods beginning July 1, 1997, and ending
June 30, 2016; and (2) the "Lease and Operation Agreement" dated "as of" July 1, 1996, between
Holdenville Industrial Authority and ODOC; (3) the Correctional Service Contract, dated July 1,
1998, between CCA (which apparently was the operator of DCF) in Holdenville, Oklahoma, and
ODOC; and (4) extension agreements of the contract identified in (3) above.

The Lease and Operation Agreement contains certain provisions that may be relevant to the
factual issues involved here regarding the relationship between the entities. For example, section
2.11 (entitled "Independent Contractor") of Article II states as follows:

The AUTHORITY [(Holdenville Industrial Authority)] is associated with the
Transferring Entity [(ODOC)] only for the purposes and to the extent set forth in this

11
 Agreement, and in respect of the performance of the Operation and Management
Services, the AUTHORITY is and shall be an independent contractor and, subject to
the terms of this Agreement, shall have the sole right (which right may be delegated
to the Operator [(CCA)] pursuant to a management services agreement) to supervise,
manage, operate, control, and direct the performance of the details incident to its
duties under this Agreement either directly or through the Operator pursuant to the
Management Services Agreement. Nothing contained in this agreement shall be
deemed or construed to create a partnership or joint venture, to create the relationship
of an employer-employee or principal-agent, or to otherwise create any liability for
the Transferring Entity whatsoever with respect to the Bond indebtedness, liabilities,
and obligations of the AUTHORITY. The AUTHORITY shall be solely responsible
for and the Transferring Entity shall not have any obligation with respect to payment
of all federal income, F.I.C.A., and other taxes owed or claimed to be owned by the
AUTHORITY, arising out of this Agreement.

Secretary's Response (Resp.), Exhibit (Exh.) 1 at 11. There may be other provisions in this
agreement relevant to this inquiry. See, e.g., id. at 13 (providing in Article II, section 2.20, entitled
"Taxes, Liens, Assessments, and Utilities", that the "AUTHORITY shall . . . pay . . . all lawful taxes
and assessments levied or assessed by the . . . State"); 29 (providing in Article V, section 5.2(A),
entitled "Representations and Warranties of the AUTHORITY", that "[t]he AUTHORITY is
organized and existing as a public trust created under the laws of the State as an agency of the State
and the duly constituted authority of the City"). I also note that although there are also subsequent
correctional services contracts between CCA and ODOC that state that CCA is the owner of DCF
and also appear to contain provisions entitled "Independent Contractor", the Secretary has not
provided those contracts in their entirety and those provisions were not among those provided. See,
e.g., Secretary's Resp., Exh. 3 ("Correctional Services Contract" between CCA and ODOC for the
period July 1, 2003, through October 31, 2003, Table of Contents showing Article 6, section 6.1,
entitled "Independent Contractor Status").

In any event, even if judicial notice were to be taken of the existence of a contract between
the ODOC and DCF or CCA, the fundamental inquiry, which the Board failed to address and to
which the answer is presently unknown, is whether any such contract provides that DCF constitutes
a "State . . . penal institution" within the meaning of 38 U.S.C. § 5313(a)(1). The Board thus failed
to consider adequately "all . . . applicable provisions of law" and to provide an adequate statement
of reasons or bases for its decision. 38 U.S.C. § 7104(a), (d)(1); see Allday and Gilbert, both supra.
Accordingly, remand is appropriate unless the Secretary were to prevail on his alternative argument,
discussed below, which I believe that he does not. See Hicks v. Brown, 8 Vet.App. 417, 422 (1995)
(stating that remand rather than reversal is appropriate remedy when judicial review is frustrated by
inadequate record below); see also Pond v. West, 12 Vet.App. 341, 346 (1999) (stating that remand
is appropriate remedy when Board has failed to ensure proper development of claim); Block v.
Brown, 7 Vet.App. 343, 346 (1994).

12
 2. Secretary's Alternative Argument

The Secretary further argues that, even assuming that DCF is not a State penal institution,
concluding that section 5313 is inapplicable to the appellant would be contrary to the legislative
intent underlying the provision and would produce an absurd result. If the Court were to conclude
that the Secretary was correct on this argument, such a conclusion would appear to obviate the need
for remand. See 38 U.S.C. § 7261(b)(2) (in conducting review of BVA decision, Court shall take
due account of rule of prejudicial error); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004)
(concluding that Court not obligated to address expressly "rule of prejudicial error in each and every
opinion"; however, Court cannot "flatly refuse[] to 'take due account of the rule of prejudicial
error'"); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991).

As discussed above, the "plain meaning must be given effect unless a 'literal application of
[the] statute will produce a result demonstrably at odds with the intention of its drafters.'" Gardner
v. Derwinski, 1 Vet.App. 584, 586-87 (1991) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S.
564 (1982)), aff'd sub nom. Gardner, supra. The "absurd result" exception to the plain meaning rule
is narrow and limited to situations "'where it is quite impossible that Congress could have intended
the result . . . and where the alleged absurdity is so clear as to be obvious to most anyone.'" Gardner,
1 Vet.App. at 587 (quoting Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 470-71 (1989)
(Kennedy, J., concurring)). However, for the reasons that follow, I cannot conclude on the record
before us that a plain reading of section 5313, that is, a reading that finds that the statute does not
reduce the compensation of persons incarcerated in institutions other than "Federal, State, or
local . . . institution[s]", 38 U.S.C. § 5313(a)(1), would necessarily produce an absurd result.

As a preliminary matter, I note that the current version of section 5313 is virtually unchanged
from the provision originally enacted by Congress in October 1980 in section 504 of the Veterans'
Disability Compensation and Housing Benefits Amendments of 1980, Pub. L. No. 96-385, § 504,
94 Stat. 1528, 1534 (Oct. 7, 1980). Compare id. with 38 U.S.C. § 5313 (2002). As set forth below
and explained in great detail in my concurring opinion in Bolton v. Brown, 8 Vet.App. 185, 194-97
(1995) (Steinberg, J., concurring), a review of the legislative history of that provision reveals that
it was the result of a compromise between the Senate and the House of Representatives. In this
regard, the Explanatory Statement prepared by the House and Senate Committees on Veterans'
Affairs reflects as follows regarding the details of the compromise agreement that became section
504 of Public Law 96-385:

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

13
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, [currently enumerated as 38 U.S.C. § 5307,] 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[, currently
enumerated as 38 U.S.C. § 1114(k)]. 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.

14
 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, . . . 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), reprinted in
1980 U.S.C.C.A.N. 3323, 3326-27; see Bolton, 8 Vet.App. at 194-97 (Steinberg, J., concurring)
(setting forth pertinent legislative history of section 5313); see also 126 CONG . REC. 27,014 (1980);
126 CONG . REC. 26,110, 26,119-20 (1980).

Although the House of Representatives, in July 1980, had passed H.R. 7511 with an
incarcerated-person provision in it, see 126 CONG . REC. 18,789 (1980), neither the Senate-introduced
bill nor the initial Senate-passed bill, which contained an amendment to the House-passed bill,
included a provision with respect to the limitation of compensation and DIC for incarcerated persons.
See S. REP. NO . 96-876 (1980); 126 CONG . REC. 9,767-70 (1980); 126 CONG . REC. 21,426-30,
21,447 (1980). However, as set forth in the Explanatory Statement, above, a subsequent compromise
involving the Senate's amendment to the House-passed bill and the House's further amendment to
that amendment was ultimately agreed upon by the two Committees on Veterans' Affairs, see
126 CONG . REC. 26,110 (1980), and on September 24, 1980, the Senate concurred in the House
amendment to the Senate amendment. 126 CONG . REC. 27,017 (1980).

Moreover, with respect to the compromise brokered between the Senate Committee and the
House Committee, the Chairman of the Senate Committee explained in pertinent part:

[W]e . . . . 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

15
to convince our House colleagues to accept our position . . . . 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.

....

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.

....

Mr. President, in my view and in the view of other [C]ommittee 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.

....

In my view, the various modifications of the House provisions reflected in the
compromise agreement go far to overcome many of our [C]ommittee's objections to

16
 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. at 27,011-16 (statement of Sen. Cranston). With regard to the final compromise
legislation, the ranking minority member on the Senate Committee offered 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' [Affairs] 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 need-based and not totally related
to a disability incurred while in service.

Id. at 27,017 (statement of Sen. Thurmond). These statements illustrate the conflict between the
House and the Senate over the fundamental principles of service connection. See also Explanatory
Statement, supra.

Finally, in contrast to Congress' concern regarding limiting the scope of section 5313, the
appellant directs the Court's attention to a Social Security statutory provision that he contends
illustrates Congress' clear intent to bar all beneficiaries who are "confined in a jail, prison, or other
penal institution or correctional facility" from receipt of Social Security benefits. 42 U.S.C.
§ 402(x)(1)(A)(i) (emphasis added); see Appellant's Reply Br. at 5. In this regard, at the time that
Congress was legislating section 5313, it enacted an amendment to the Social Security Act (SSA),
which, inter alia, suspended the payment of benefits to individuals incarcerated for a felony
conviction. That amendment was contained in section 5(c) of Public Law No. 96-473, which
provided:

(c) Section 223 of [the SSA] is amended by adding at the end thereof the
following new subsection:

17
 "Suspension of Benefits for Inmates of Penal Institutions[.]

"(f)(1) Notwithstanding any other provision of this title, no monthly benefits
shall be paid under this section . . . by reason of being under a disability, to any
individual for any month during which such individual is confined in a jail, prison,
or other penal institution or correctional facility, pursuant to his conviction of an
offense which constituted a felony under applicable law, unless such individual is
actively and satisfactorily participating in a rehabilitation program which has been
specifically approved for such individual by a court of law and, as determined by the
Secretary, is expected to result in such individual being able to engage in substantial
gainful activity upon release and within a reasonable time.["]

Social Security Act–Retirement Test, Pub. L. No. 96-473, § 5(c), 94 Stat. 2263, 2265 (1980)
(emphasis added) (codified at 42 U.S.C. § 402(x)). This provision originated as an amendment
added by the Senate Finance Committee to H.R. 5295 as passed by the House, see Pub. L. No. 96-
473, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S.C.C.A.N. 4787, 4794-95; S. REP. NO . 96-
987 (1980); 126 CONG . REC. 36,969 (1979), and was included in the Senate-passed H.R. 5295, see
126 CONG . REC. 28,193-95 (1980). The Finance Committee explained as follows this provision in
the bill as reported:

The [C]ommittee believes that the basic purposes of the [S]ocial [S]ecurity
program are not served by the unrestricted payment of benefits to individuals who are
in prison or whose eligibility arises from the commission of a crime. The disability
program exists to provide a continuing source of monthly income to those whose
earnings are cut off because they have suffered a severe disability. The need for this
continuing source of income is clearly absent in the case of an individual who is
being maintained at public expense in prison. The basis for his lack of other income
in such circumstances must be considered to be marginally related to his impairment
at best.

The [C]ommittee bill therefore would require the suspension of benefits to
any individual who would otherwise be receiving them on the basis of disability
while he is imprisoned by reason of a felony conviction.

S. REP. No. 96-987, Pub. L. No. 96-473, 96th Cong., 2d Sess. (1980), reprinted in 1980
U.S.C.C.A.N. at 4794-95. As to that Senate-passed amendment, shortly before the House agreed
to it, the ranking minority member of the House Ways and Means Committee stated:

The matter of primary concern to the House here, as I understand it, has to do
with [S]ocial [S]ecurity benefits for those convicted of felonies or crimes in the
nature of a felony in jail. There has been considerable concern expressed in this
House as a result of the Son of Sam case where it was disclosed that this convicted

18
 murderer in Attica State Prison was receiving substantial disability benefits under
[S]ocial [S]ecurity because of his mental disability, determined in the trial whereby
he was found guilty.

126 CONG . REC. 28,675-77 (1980) (statement of Rep. Conable); see 126 CONG . REC. 29,151 (1980)
(Senate final passage of H.R. 5295 as further amended by the House).

The provision suspending Social Security benefits has been amended several times since its
enactment in 1980. See generally Ticket to Work and Work Incentives Improvement Act of 1999,
Pub. L. 106-170, § 402, 113 Stat. 1860, 1907-09 (Dec. 17, 1999); Social Security Domestic
Employment Reform Act of 1994, Pub. L. No. 103-387, § 4(a)(1), (2), 108 Stat. 4071, 4076 (Oct. 22,
1994). Currently, that statute provides in relevant part:

Limitation on payments to prisoners and certain other inmates of publicly
funded institutions.

(1)(A) Notwithstanding any other provision of this subchapter, no monthly
benefits shall be paid under this section . . . to any individual for any month
ending with or during or beginning with or during a period of more than 30
days throughout all of which such individual–

(i) is confined in a jail, prison, or other penal institution or
correctional facility pursuant to his conviction of a criminal offense,

(ii) is confined by court order in an institution at public expense in
connection with–

(I) a verdict or finding that the individual is guilty but
insane, with respect to a criminal offense,

(II) a verdict or finding that the individual is not guilty of
such an offense by reason of insanity,

(III) a finding that such individual is incompetent to stand
trial under an allegation of such an offense, or

(IV) a similar verdict or finding with respect to such an
offense based on similar factors (such as a mental disease,
a mental defect, or mental incompetence), or

(iii) immediately upon completion of confinement as described in
clause (i) pursuant to conviction of a criminal offense an element of

19
 which is sexual activity, is confined by court order in an institution at
public expense pursuant to a finding that the individual is a sexually
dangerous person or a sexual predator or a similar finding.

(B)(i) For purposes of clause (i) of subparagraph (A), an individual shall not
be considered confined in an institution comprising a jail, prison, or other
penal institution or correctional facility during any month throughout which
such individual is residing outside such institution at no expense (other than
the cost of monitoring) to such institution or the penal system or to any
agency to which the penal system has transferred jurisdiction over the
individual.

42 U.S.C. § 402(x) (boldface-italic emphasis added).

It is clear that, by amending the provision, Congress over the past 20 years has affirmatively
expanded the scope of 42 U.S.C. § 402(x) to include, inter alia, any person confined to "a jail, prison,
or other penal institution or correctional facility" and any person confined to "an institution at
public expense." Ibid. (emphasis added). In contrast, the amendments to section 5313 have not
expressly expanded the provision's scope to include the "other penal institutions or correctional
facility" or "institution at public expense" language of 42 U.S.C. § 402(x) or to reflect the trend of
the privatization of penal institutions.2 Indeed, the broadness of the contemporaneously enacted
section 402(x) cannot be imported into section 5313. See Skinner v. Brown, 27 F.3d 1571, 1576
(Fed. Cir. 1994) ("It may be unusual that Congress chose not to tie [Restored Entitlement Program
for Survivors] payments to the same time restrictions that applied under the Social Security Act, but
it is hardly absurd to conclude, as the government suggests, that it meant to do so under these
circumstances given the plain statutory language.").

Thus, based on the Explanatory Statement that reflects the compromise between the House
and Senate Committees on Veterans' Affairs'; the statements made by Senators Cranston and
Thurmond regarding the brokering of the compromise legislation; the absence of any reference to
persons incarcerated in privately owned and operated institutions or elsewhere at public expense
similar to those references that appear to broaden the effect of 42 U.S.C. § 402(x); and the lack of
substantial amendments to section 5313 since its enactment, I am unable to conclude, as the
Secretary urges, that applying section 5313 only to those persons entitled to compensation who are
incarcerated in a "Federal, State, or local . . . institution", 38 U.S.C. § 5313(a)(1), undoubtedly would
produce an absurd result.3

2
See generally http://www.doc.state.ok.us/Private%20Prisons/private_prison_admin.htm (last visited Aug. 23,
2004) (providing hyperlink to pdf document containing survey of private prison rates by state).

3
See Trilles v. West, 13 V et.App. 314, 324 (2000) (en banc); Holliday v. Principi, 14 Vet.App. 280, 285
(2001); see also Simmons, Thayer, Cottle Faust, Davenport, all supra note 1; Gardner v. Derwinski, 1 Vet.App. 584,

20
 On remand, the Board should ensure complete development of the appellant's claim, to
include the securing of complete copies of any and all documents related to DCF's relationship with
the ODOC and any and all documents pertaining to the appellant's transfer of custody to DCF, see
38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1) (2003) (setting forth VA's duty to assist claimant in
obtaining records not in custody of Federal department or agency), and provide a thorough
discussion so as to enable the appellant to understand the precise basis for the Board's decision and
to facilitate review in this Court, if again sought. See Caluza, Gabrielson, and Gilbert, all supra;
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (remand is meant to entail critical examination
of justification for decision; Court expects that BVA will reexamine evidence of record, seek any
other necessary evidence, and issue timely, well-supported decision); see also Fortuck v. Principi,
17 Vet.App. 173, 181 (2003) (noting that Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096, and its implementing regulations at 38 C.F.R. § 3.159 will apply on remand
from Court).

III. Conclusion

In my view, it is the Court's duty to remand this case – just as it was the duty of the Board
to provide a decision that dealt with the principal legal question involved in such a way, based on
the evidence of record, as to permit us to carry out effective judicial review. This Court cannot
perform the Board's task for the Board or decide the case on an evidentiary record on which the
Board did not rely in its decision. If, upon further review of the circumstances surrounding this case,
it is concluded that an amendment of the statute is in order to make express in law what the
Secretary believes is there, such action is the province of the legislative branch and not within our
jurisdiction.

GREENE, J., dissenting: I do not join the Court's per curiam order today, because I feel that
the record is adequate for judicial review. Furthermore, the question at issue is a question of law that
I believe the Court can and should answer.

Initially, I cannot agree with the conclusion that the Board has "not yet addressed" the
question of whether Mr. Wanless is incarcerated in a State penal institution. Ante at 1. In fact, the
Board spends three full paragraphs discussing the veteran's arguments on this very question, i.e., the
question of whether the DCF, as a private prison contractor, constitutes a 'State . . . penal institution"
within the meaning of 38 U.S.C. § 5313(a)(1). In the first two, the Board addresses and rejects the
authority relied upon by Mr. Wanless in support of his views of section 5313. R. at 4-5. In the last,
the Board correctly observes that his incarceration in a privately-managed prison does not negate the
fact that he is serving time for a felony conviction imposed under Oklahoma state law. R. at 5. As
shown below, the Board decision, though imperfect, is more than adequate.

586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994).

21
 First, the Board's conclusion that Mr. Wanless is imprisoned for a State felony conviction
follows Oklahoma law. In Washington v. Cornell Corr. Inc., the Court of Civil Appeals of
Oklahoma addressed a civil suit brought by a prisoner incarcerated in a privately owned prison
facility, and noted both that the prisoner had been "sentenced to a term of confinement in DOC
custody," and that his "confinement at GPCF [(Great Plains Correctional Facility)], although
privately owned, does not alter his status as a prisoner." Washington, 30 P.3d 1162, 1164 (Okla. Civ.
App. 2001). Under OKLA . STAT . tit. 57, § 561(A), the Oklahoma Department of Corrections is
authorized to contract with private prisons contractors for the operation of a prison. However, such
a contractor must demonstrate "[t]he ability to comply with the standards of the American
Correctional Association and with specific court orders." Okla. Stat. tit. 57, § 561.1(C)(2). There
is no merit in Mr. Wanless' argument that he is not, under section 5313, in Oklahoma DOC custody
and incarcerated as a prisoner in a State penal institution. (To the extent that it might be argued that
Mr. Wanless was only sentenced to confinement in DOC custody, but is now serving in something
other than DOC custody, such a view would have this Court (or the Board on remand) contemplate
a statement that the State of Oklahoma is contravening the order of the trial court by placing the
veteran in a private prison over which there is no State control or recognition of the confinement
terms for his felony conviction. Mr. Wanless does not argue that he is not under State control and
the statutes authorizing private prisons contradicts any such theory.)

Second, the Board's rejection of Mr. Wanless' argument regarding section 5313 is wholly in
line with the view (which I share) that interpreting section 5313 in the manner proposed by him
would lead to "a result demonstrably at odds with the intention of its drafters." Gardner v.
Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.
1993), aff'd, 513 U.S. 115 (1994). Indeed, the Secretary does an excellent job of explaining the
legislative history of section 5313:

The course the Appellant charts in this appeal would lead to an "absurd" result. In
1980, prior to the passage of 38 U.S.C. § 5313, the Honorable G.V. 'Sonny'
Montgomery, the principal sponsor of H.R. 7511, 96th Cong., the bill that became
Pub.L. No. 96-385, explained the basis for the legislation as follows:

I do not see the wisdom of providing hundreds and thousands of dollars of tax
free benefits to incarcerated felons when at the same time the taxpayers of
this country are spending additional thousands of dollars to maintain these
same individuals in penal institutions. . . .

126 Cong. Rec. 26, 118 (1980); see VAOPGC PREC 59-91. Additionally,
Congressman Wylie stated, "[i]n 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."
126 Cong. Rec. 26, 122 (1980) (emphasis in original).

22
Secretary's Br. at 10-11.

It should be noted that nowhere among the concerns expressed, nor among any other
statement in the legislative history, is there a single statement that suggests that Congress was
concerned whatsoever about limiting section 5313 so that it did not apply to individuals convicted
by the Federal government or a State or local government, whose incarceration is carried out by a
privately run contract-penal institution. Rather, Congress appeared to be concerned with the
limitation of benefits to any incarcerated veteran, which was finally accomplished with a global
limitation, based on the nature of the underlying offense (i.e., it applies only to felonies) and to
incarceration after a set date.

In this case, Mr. Wanless believes that there is in section 5313 a distinction between prisoners
incarcerated in state-owned prisons and those incarcerated in privately run (but state-contracted)
prisons. Thus, he argues that he is entitled to the full amount of his VA benefits, rather than the
reduced amount available to prisoners in actual DOC prisons. His belief is misplaced. There should
be no dispute but that privately managed prisons are still operated under contract for the state,
meaning that the state is still expending funds to incarcerate these prisoners. See generally
http://www.doc.state.ok.us/Private%20Prisons/privatep.htm (visited Aug. 17, 2004) ("Private Prisons
with Oklahoma DOC Contracts"; listing per diem expense to state per inmate).1 Thus, I would hold
that such arrangements are still well within the legislative intent of section 5313; the reasons for not
helping a prisoner at a privately run institution maintain a standard of living are identical to the
reasons for not doing so for a prisoner at a publicly run institution. The Board, in making its
conclusion rejecting Mr. Wanless' argument, was, consciously or not, recognizing that his argument
would lead to an "absurd result." See United States v. X-Citement Video, Inc., 513 U.S. 64, 69-70
(1994) (noting the Court's "reluctance to simply follow the most grammatical reading of the statute").

By vacating the Board decision and remanding this matter, the majority must, necessarily,
believe that Mr. Wanless' argument should be given credence, i.e., that there may be a result here that
negates application of the "absurd result" doctrine; if it felt otherwise and still remanded this matter,
it would be acting in contravention to the dictates of the holding of Gardner, supra. The majority's
sub silentio finding that it cannot undoubtedly conclude that it would be an absurd result if section
5313 applied only to persons incarcerated in a "Federal, State, or local . . . institution" and not to
persons incarcerated in government-contracted, privately run facilities does not, of course, offer any
basis on how Congress could have intended such a distinction. Indeed, there is no need for such a
distinction, and no indication that Congress ever entertained, let alone acted on, such a strained
interpretation. To conclude, as the majority must in order to find error here, that Congress may have
sought to ameliorate these concerns by differentiating between prisoners confined in private prisons

1
Oklahoma law authorizes the Oklahoma DOC to contract with privately-owned prisons to house and care for
Oklahoma prisoners. See O KLA . S TAT . tit. 57, §§ 561(A), 561.1(B) (2003). Although the statute doesn't require the DOC
to have a stated rationale for doing so, it is likely that such facilities may be necessary because the state cannot adequately
house (for monetary or other reasons) some prisoners.

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operated for the State versus those confined in actual State-owned prisons, quite simply, leads to an
absurd result. Such a conclusion presumes a Congressional intention to create a sort of random,
lottery-type veterans benefits system. A veteran convicted of a felony and incarcerated in a state-
owned prison is eligible only for reduced benefits. But a veteran similarly convicted and sentenced
but incarcerated in a privately run, state-contracted prison is eligible for full benefits. Congress
could not have intended this result.2

The majority's insistence here on having the Board conduct a detailed analysis of the contract
between CCA and the Oklahoma DOC avoids the critical, indisputable fact: Mr. Wanless is a
prisoner convicted of a felony by the State of Oklahoma and ordered imprisoned by that State at
public expense. Nothing in the contract between CCA and DOC can change that fact.3 Even if the
contract explicitly stated that this facility was not a State penal institution, section 5313 would still
apply here with full force. This is because the authority in this situation flows from the statute down,
not from the contract up. No contract can alter the basic intent of section 5313, which was to limit
payments designed to maintain a standard of living to veterans who were already being housed,
clothed, and fed at public expense. No matter how the Oklahoma DOC and CCA want to classify
the arrangement, if these prerequisites are in place, section 5313 applies.4 Any contrary conclusion
is inconsistent with the concept that "the law is not an abstract concept removed from the society it
serves." Sandra Day O'Connor, A Tribute to Justice Thurgood Marshall: Thurgood Marshall: The
Influence of a Raconteur, 44 STAN . L. REV . 1217, 1218 (1992).

There does not seem to be any rationale for treating veterans incarcerated for state felony
convictions in a state-contracted, privately owned facility more favorably than veterans incarcerated
in state-owned prisons. I believe that both are State penal institutions. Indeed, since section 5313

2
Note that a result awarding full benefits to an incarcerated veteran would effectively divest apportionees of
their right to such funds, and it would be logical for Congress to have an interest in having VA assist such apportionees.

3
Indeed, we may judicially note that the Davis Correctional Facility is one of the CCA facilities with an
Oklahoma DOC contract. As such, it could be concluded to be an agent of the State of Oklahoma and therefore a State
prison for purposes of section 5313. See http://www.doc.state.ok.us/Private%20Prisons/privatep.htm (visited Feb. 26,
2004) (listing Davis Correctional Facility, where Mr. W anless is incarcerated, as one of the private prisons with which
Oklahoma DOC contracts). See also Smith (Brady) v. Derwinski, 1 Vet.App. 235, 238 (1991) (noting that "[c]ourts may
take judicial notice of facts not subject to reasonable dispute"). I note that the information is not disputed by either party,
is readily accessible to the public, and is therefore "not subject to reasonable dispute," Smith (Brady), supra; thus we
need not engage in any factfinding to take note of this information. Furthermore, regardless of whether we use this
information or not, this much is clear: Mr. W anless was convicted by the State of Oklahoma and is now incarcerated in
the United States. Furthermore, nobody, not even Mr. W anless, disputes that he is being incarcerated at, at a minimum,
the behest of the State of Oklahoma, and nobody has alleged that the Davis Correctional Facility is housing Mr. W anless
free of charge. Given these facts, it seems an elementary deduction to arrive at the fact that he is, for purposes of section
5313, being incarcerated by a branch of Federal, State, or local government.

4
The only likely situation in which I see section 5313 not applying would be one where a veteran is imprisoned
in a foreign country (and hence not being cared for at the expense of the United States).

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was enacted, states (and the Federal government) have increasingly turned to private prison
contractors as a way to save funds and to house prisoners where State facilities are inadequate.
Indeed, in many states, the proportion of prisoners in privately run institutions is very high; for
example, 43.4 % in New Mexico, 29.3% in Alaska, 16.5% in Mississippi, and 28.9% in Oklahoma.
See www.doc.state.ok.us/MAPS/US_PC_private.htm (visited Feb. 27, 2004).

This is a case in which "the law and not the evidence is dispositive." Sabonis v. Brown,
6 Vet.App. 426, 430 (1994). The Board decision should be affirmed.

I respectfully dissent.

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