Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, s. 2010–7136

• Decision Date: 20 January 2012
• Docket Number: 2011–7041.,2010–7139,2010–7142,Nos. 2010–7136,s. 2010–7136
• Citation: 669 F.3d 1340
• Parties: NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC., Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent. Paralyzed Veterans of America, Petitioner, v. Secretary of Veterans Affairs, Respondent. Veterans of Modern Warfare and National Veterans Legal Services Program, Petitioners, v. Secretary of Veterans Affairs, Respondent. Wounded Warrior Project and Vietnam Veterans of America, Petitioners, v. Secretary of Veterans Affairs, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

669 F.3d 1340

NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC., Petitioner,

v.SECRETARY OF VETERANS AFFAIRS, Respondent.

Paralyzed Veterans of America, Petitioner,

v.Secretary of Veterans Affairs, Respondent.

Veterans of Modern Warfare and National Veterans Legal Services Program, Petitioners,

v.Secretary of Veterans Affairs, Respondent.

Wounded Warrior Project and Vietnam Veterans of America, Petitioners,

v.Secretary of Veterans Affairs, Respondent.

Nos. 2010–7136

2010–7139

2010–7142

2011–7041.

United States Court of Appeals, Federal Circuit.

Jan. 20, 2012.

David H. Tennant, Nixon Peabody, LLP, of Rochester, NY, argued for petitioner. On the brief were Richard P. Cohen, National Organization of Veterans' Advocates, Inc., of Washington, DC; and Douglas J. Rosinski, Pillsbury Winthrop Shaw Pittman, LLP, of San Francisco, CA.

Michael P. Horan, Deputy General Counsel, Paralyzed Veterans of America, of Washington, DC, argued for petitioner. With him on the brief were William S. Mailander, General Counsel, and Jennifer A. Zajac, Assistant General Counsel.

Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, argued for the petitioners. Of counsel on the brief were Stephen B. Kinnaird and Sean D. Unger, Paul Hastings Janofsky & Walker, LLP, of Washington, DC.

Scott D. Austin, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martie Adelman, Attorney, of United States Department of Veterans Affairs, of Washington, DC.

Michael Wishnie, Veterans Legal Services Clinic, of New Haven, CT, for amici curiae. With him on the brief was Jeffrey Selbin.

Before NEWMAN, O'MALLEY, and REYNA, Circuit Judges.

REYNA, Circuit Judge.

The National Organization of Veterans Advocates, Paralyzed Veterans of America, Veterans of Modern Warfare and National Veterans Legal Services (collectively "Petitioners") challenge a rule issued by the Secretary of Veterans Affairs ("Secretary") amending 38 C.F.R. § 3.304(f) with respect to claims for service-connected disability benefits for posttraumatic stress disorder ("PTSD"). Petitioners contend that the new rule is contrary to existing statutes and arbitrary and capricious in nature. We conclude that the new rule is a permissible application of the statute by the Secretary and not in violation of any law or rule. We therefore deny the petition.

I

The rule at issue here concerns PTSD. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM–IV"), classifies PTSD as an anxiety disorder. A person may develop PTSD after exposure to a stress inducing event, such as threatened death or serious injury. Persons suffering from PTSD reexperience the traumatic event in several ways, including nightmares, flashbacks, and physiological or psychological reactions to stimuli reminiscent of the damaging experience. As a result, those suffering from PTSD may remove themselves from the world and those around them in an effort to avoid that which could trigger a response. Tragically, an estimated ten to thirty percent of United States Armed Services personnel will develop PTSD within a year of leaving combat. See Nat'l Council on Disability, Invisible Wounds: Serving Service Members and Veterans with PTSD and TBI 2–3 (Mar. 4, 2009), available at http://www.ncd.gov/publications/2009/March042009 ("Invisible Wounds

").

The United States has deployed over 1.6 million troops in the recent wars in Iraq and Afghanistan. Id. at 8. Those conflicts have been characterized by guerilla warfare tactics and the inherent uncertainty that comes with it. Moreover, many troops have served multiple tours of duty with little respite in between. It is no surprise that these conditions are particularly likely to lead to increased incidences of PTSD. See id. at 21–23.

The troops who return home and develop PTSD are often faced with more than reliving the horrors of war. Veterans with PTSD suffer from more chronic conditions and have shorter life spans than veterans without PTSD. PTSD has also been linked to higher divorce rates and joblessness. Id. at 18. Against this backdrop, the Secretary amended the Department of Veterans Affairs ("VA") regulations to address the serious problem of troops returning home with PTSD.

II

Like other injuries, veterans who suffer from service-connected PTSD are eligible for benefits. The Secretary has the authority to issue regulations which establish the requirements for veterans to qualify for service-connected PTSD injuries. 38 U.S.C. § 501(a). Specific rules govern the diagnosis of PTSD and the evidence required to connect a diagnosis to military service. Generally, a finding of PTSD service-connection requires three components: "medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f).

The VA proposed a rule on August 24, 2009, creating an additional situation where a veteran could establish PTSD service-connection without supporting evidence regarding the claimed in-service stressor. Stressor Determinations for Posttraumatic Stress Disorder, 74 Fed.Reg. 42,617 (Aug. 24, 2009). That rule, codified at 38 C.F.R. § 3.304(f)(3), is at issue here:

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 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

The new rule has three features relevant to this challenge: one, it allows a veteran to establish PTSD without supporting evidence; two, the lower evidentiary standard only applies if a VA psychologist or psychiatrist, or one who has contracted with the VA, confirms the claimed-stressor supports the diagnosis; and three, it defines the veteran's "fear of hostile military or terrorist activity" as involving a response characterized by "a psychological or psycho-physiological state of fear, helplessness, or horror." Id. As explained by the Secretary at oral argument, the rule does not require a VA practitioner to confirm the diagnosis of PTSD. Rather, a VA practitioner is only required to confirm that the claimed-stressor supports the diagnosis.

The VA explained that the rule was "intended to acknowledge the inherently stressful nature" of serving where "hostile military or terrorist activities [are] ongoing." 74 Fed.Reg. at 42,617. The goal was "to facilitate the timely VA processing of PTSD claims by simplifying the development and research procedures that apply to these claims." Id. Pursuant to procedure, the VA invited responses to the proposed rule and received 126 comments, including critiques, from various organizations, including Petitioners here.

The VA responded to the comments but left the rule as proposed. 75 Fed.Reg. 39,843 (July 13, 2010). The majority of comments were aimed at the rule's distinction between private psychologists and psychiatrists and those employed or associated with the VA. The comments suggested that the new rule should extend to all qualified practitioners. The VA declined to extend the rule beyond VA practitioners, explaining that PTSD diagnoses are "particularly complex." Id. at 39,847. This complexity was only increased as the new rule added an extra wrinkle—the examiner would now also make the "forensic" determination that the claimed-stressor as described by the veteran was sufficient to support a PTSD diagnosis. See id.

VA practitioners, the VA contended, were particularly able to make this forensic determination for several reasons:

First, VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. Id. Second, the VA reviews the quality of its practitioners' examinations, including taking steps to address identifiable problems with feedback and training. Id. Third, the VA provides VA associated practitioners with the veterans' claims folders in connection with all mental-disorder examinations, including PTSD examinations. Id. The practitioners are in turn instructed that a PTSD diagnosis cannot occur without a review of the folder. In contrast, private practitioners do not have direct access to a veteran's claims folder. Id. at 39,847 –48. Fourth, the VA noted that limiting the rule to VA associated practitioners would "ensure standardization and consistency." Id. at 39,848. The consistency would be a product of both the large number of PTSD...