Serv. Women's Action Network v. Sec'y of Veterans Affairs

• Decision Date: 03 March 2016
• Docket Number: No. 2014–7115.,2014–7115.
• Citation: 815 F.3d 1369
• Parties: SERVICE WOMEN'S ACTION NETWORK, Vietnam Veterans of America, Petitioners v. SECRETARY OF VETERANS AFFAIRS, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

815 F.3d 1369

SERVICE WOMEN'S ACTION NETWORK, Vietnam Veterans of America, Petitioners

v.SECRETARY OF VETERANS AFFAIRS, Respondent.

No. 2014–7115.

United States Court of Appeals, Federal Circuit.

March 3, 2016.

Daniela Nogueira, Rachel Tuchman, Jerome N. Frank Legal Services Organization, New Haven, CT, argued for petitioners. Also represented by Michael Joel Wishnie ; Margaret Moog Middleton, Connecticut Veterans Legal Center, West Haven, CT.

Allison Kidd–Miller, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr; David J. Barrans, Martie Adelman, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

John Millian, Gibson, Dunn & Crutcher LLP, Washington, DC, for amici curiae Public Health and Mental Health Specialists, Madelon Baranoski, Traci Cipriano, Shelley Geballe, Gregg Gonsalves, Catherine Lewis, Alice Miller, Howard Zonana.

Sandra Shin–Young Park, American Civil Liberties Union Foundation, Inc., New York, NY, for amici curiae American Civil Liberties Union, Futures Without Violence, National Alliance to End Sexual Violence, National Center on Domestic and Sexual Violence, Protect Our Defenders. Also represented by Lenora M. Lapidus.

Paul Whitfield Hughes, Mayer Brown LLP, Washington, DC, for amicus curiae Members of Congress. Also represented by Charles Alan Rothfeld.

Marianne Hogan, Morgan, Lewis & Bockius LLP, Washington, DC, for amicus curiae National Veterans Legal Services Program. Also represented by Barton F. Stichman, National Veterans Legal Services Program, Washington, DC.

Before LOURIE, WALLACH, and HUGHES, Circuit Judges.

Opinion for the court filed by Circuit Judge HUGHES

. Dissenting opinion filed by Circuit Judge WALLACH.

HUGHES

, Circuit Judge.

There has been a growing recognition of the pervasive and continuing problem of sexual abuse in the military and the often severe effects it can have.¹ Numerous steps have been taken to confront the problem, including an increased focus by the Department of Defense, and increased efforts by the Department of Veterans Affairs to improve its adjudication of disability claims related to military sexual trauma.²

In response to what they viewed as the VA's inadequate response to MST-based disability claims, petitioners here (the Service Women's Action Network and the Vietnam Veterans of America) submitted a petition for rulemaking which requested that the VA promulgate a new regulation regarding the adjudication of certain MST-based disability claims. The Secretary of Veterans Affairs denied the rulemaking petition and this appeal followed. Our review in these circumstances is limited. Because the Secretary's decision to deny the rulemaking petition was not arbitrary or capricious, or in violation of the equal protection component of the due process clause of the Fifth Amendment, we deny the petition for review.

I

In 2012, one in five female veterans and one in one-hundred male veterans reported that they experienced sexual abuse in the military, and an estimated 26,000 servicemembers "experienced some form of unwanted sexual contact." J.A. 220. The trauma stemming from sexual abuse in the military is referred to as military sexual trauma (MST) and it can result in severe chronic medical conditions, including Post–Traumatic Stress Disorder

(PTSD), depression, and anxiety.³

Generally, veterans with service-connected disabilities (i.e., injuries or diseases contracted or aggravated in military service) are entitled to disability benefits.

See 38 U.S.C. §§ 1110

, 1131. Veterans are eligible to receive disability benefits for the physical and mental health disabilities caused or aggravated by MST, such as PTSD, depression, or anxiety.

From 2008–2013, veterans filed over 29,000 claims related to disabilities caused by MST. J.A. 220. And from 2010–2013, the overwhelming majority of those MST-based claims (94%) were for PTSD. Id. In at least 2010 and 2011, there was a significant disparity in the rates at which PTSD claims were granted, depending on whether the claim was based on MST or some other stressor. For instance, in 2010, 56% of non-MST-based PTSD claims were granted, while only 32.3% of MST-based PTSD claims were granted. J.A. 173. And, in 2011, 74% of non-MST-based PTSD claims were granted, while only 44.6% of MST-based PTSD claims were granted. Id.

To address this significant disparity, the Service Women's Action Network and the Vietnam Veterans of America (collectively, petitioners) petitioned the Secretary for a rulemaking. Petitioners claim that this disparity, at least in part, is due to the higher evidentiary burden required to establish service-connection for MST-based PTSD.

To establish service connection for PTSD, there must be a medical diagnosis of PTSD, a link between the PTSD diagnosis and the in-service stressor, and "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f)

. The Secretary has the "authority to prescribe all rules and regulations which are necessary or appropriate ... with respect to the nature and extent of proof and evidence ... in order to establish the right to benefits." 38 U.S.C. § 501(a). Under this authority, the Secretary allows a veteran's lay testimony alone to constitute the credible supporting evidence required for stressors related to combat in which the veteran engaged, a veteran's fear of hostile military or terrorist activity, or a veteran's experience being a prisoner of war. 38 C.F.R. § 3.304(f)(2)-(4). Specifically, if the evidence establishes that the veteran experienced a specific event that caused the claimed stressor (e.g., that the veteran engaged in combat with the enemy), and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the VA allows the veteran to establish the occurrence of the claimed stressor through the veteran's "lay testimony alone" when there is no clear and convincing evidence to the contrary. Id. In contrast, when the stressor is related to an in-service personal assault, which includes MST, the veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304(f)(5). However, evidence from sources other than the veteran's service records may constitute credible evidence supporting the occurrence of the stressor, including, but not limited to: "records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases ; and statements from family members, roommates, fellow service members, or clergy." Id. Moreover, "VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence." Id.

The petition requests that the VA promulgate a new subsection of 38 CFR § 3.304

—§ 3.304(g) —to establish a separate evidentiary presumption for PTSD caused by MST. Petitioners' proposed rule reads:

If a stressor claimed by a veteran is related to the veteran's reported experience of military sexual trauma and a psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of a mental health condition and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

J.A. 302.

The petition contends that this rule is necessary because: (1) systemic underreporting deprives survivors of rape, sexual assault, and sexual harassment of the documentation necessary to corroborate their claims; (2) VA adjudicators often misapply the current evidentiary standard; and (3) VA's current rules for PTSD related to MST allow for biased exercises of adjudicators' discretion.

The petition further argues that veterans suffering from PTSD caused by other stressors "do not have to present any threshold evidence of the specific stressor," but must simply show that they "served in general conditions in which stressors causing PTSD occur." J.A. 345. Therefore, the proposed evidentiary standard only requires veterans "to prove they served in general conditions in which military sexual assault and sexual harassment are known to occur." Id. at 345. However, since sexual harassment and sexual assault are "known to occur in all conditions of service," veterans claiming benefits for MST-based PTSD would only need to prove that they served in the military. Id.

The Secretary denied the petition. Petitioners appeal on the grounds that the denial is arbitrary and capricious and violates the equal protection clause of the Fifth Amendment. We have jurisdiction under 38 U.S.C. § 502

. Preminger v. Sec'y of Veterans Affairs, 632 F.3d 1345, 1352 (Fed.Cir.2011).

II

As we have previously held, we review the Secretary's denial of a petition for rulemaking pursuant to 5 U.S.C. § 706(2)(A)

to determine whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at 1353 (citing Massachusetts v. EPA, 549 U.S. 497, 527–28, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) ). When a proposed rulemaking "pertains to a matter of policy within the agency's expertise and discretion, the scope of review should perforce be a narrow one, limited to ensuring that the agency has adequately explained the facts and policy concerns it relied on and to satisfy ourselves that those facts have some basis in the record." Id. at 1353–54 (quoting WWHT, Inc....