Appeal from the United States Court of Appeals for Veterans Claims in No. 12-1645, Judge William A. Moorman.
DEANNE L. BONNER SIMPSON, Bonner Di Salvo, PLLC, of Detroit, Michigan, argued for claimant-appellant.
JOSEPH E. ASHMAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel on the brief were Y. KEN LEE, Deputy Assistant General Counsel, and LARA K. EILHARDT, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before LOURIE, SCHALL, and DYK, Circuit Judges. OPINION filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge LOURIE.
Dyk, Circuit Judge.
Roberto Sanchez-Navarro appeals from the decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) denying his claim for service connection for post-traumatic stress disorder (" PTSD" ). We vacate and remand.
Sanchez-Navarro served in the United States Army from May 1958 until March 1960, and he was stationed in Korea from November 10, 1958, until November 16, 1959. Sanchez-Navarro is not a combat veteran, but he served near the demilitarized zone in Korea after the Korean War. In September 2005, Sanchez-Navarro filed a claim for service connection for PTSD. In order to succeed on his claim, Sanchez-Navarro was required to establish (1) " medical evidence diagnosing the condition in accordance with [38 C.F.R. § 4.125(a)]" ; (2) " a link, established by medical evidence, between current symptoms and an in-service stressor" ; and (3) " credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f). There is no dispute that Sanchez-Navarro suffers from PTSD. Sanchez-Navarro argued that the third requirement was satisfied based on his lay testimony as to three alleged stressors: (1) hearing shots and seeing two injured American soldiers on the day he left Korea; (2) exposure to wounded soldiers in medical facilities while receiving treatment for ear infections; and (3) hearing strange noises while on guard duty at night during his first week of service in Korea.
The Board of Veterans' Appeals (" Board" ) denied Sanchez-Navarro's claim in a June 18, 2008, decision. While Sanchez-Navarro's appeal to the Veterans Court was pending, the VA amended 38 C.F.R. § 3.304(f) with respect to the evidence required to establish the occurrence of claimed in-service stressors for PTSD claims. Revised § 3.304(f) provides, in relevant part:
If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom the VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
38 C.F.R. § 3.304(f)(3).
The Veterans Court vacated and remanded for the Board to determine whether Sanchez-Navarro's claim fell within the scope of the revised § 3.304(f). On remand, the Board found that revised § 3.304(f) did not apply to Sanchez-Navarro's claim because he had been diagnosed by a therapist, as opposed to a " VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted." § 3.304(f)(3). The Board found that Sanchez-Navarro was not entitled to a medical examination by a VA psychiatrist or psychologist because " none of his claimed stressor events have been sufficiently corroborated by credible supporting evidence and his account of having a continuity of PTSD symptomatology since service is not deemed credible." Respondent-Appellee's App. 33. The Veterans Court affirmed. Sa ...