National Organ., Vet. Advoc. v. Sec., Vet. Affairs

• Citation: 330 F.3d 1345
• Decision Date: 14 May 2003
• Docket Number: No. 02-7346.,02-7346.
• Parties: NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC., Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

330 F.3d 1345

NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC., Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.

No. 02-7346.

United States Court of Appeals, Federal Circuit.

May 14, 2003.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for petitioner.

Brian Owsley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. On the brief were David M. Cohen, Director; Bryant G. Snee, Assistant Director; and R. Alan Miller, Attorney. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit Judge.

GAJARSA, Circuit Judge.

National Organization of Veterans' Advocates, Inc. ("NOVA") petitions for review of a Department of Veterans Affairs ("VA") regulation, 38 C.F.R. § 3.304(f) (2002), providing that evidence other than the veteran's service records may be sufficient to establish the occurrence of a stressor in claims for service connection of post-traumatic stress disorder ("PTSD") resulting from personal assault. NOVA challenges the regulation under 38 U.S.C. § 502 as arbitrary, capricious, an abuse of discretion, and not in accordance with statutory provisions, 38 U.S.C. §§ 1154(a) and 5107(b). We hold that 38 C.F.R. § 3.304 is valid because it is not arbitrary, capricious, or contrary to law. Thus, we deny the petition for review.

Because the petitioner seeks preenforcement review of an agency rule, we must determine as a threshold matter, whether the question presented in this petition is constitutionally ripe for judicial review. The framework for analyzing the ripeness of preenforcement agency action is well-established. "Ripeness `requires us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Texas v. United States, 523 U.S. 296, 300-01, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). First, as to fitness, the question of whether amended § 3.304(f) is arbitrary, capricious, or contrary to 38 U.S.C. §§ 1154(a) and 5107(b) is purely a matter of statutory construction that would not "benefit from further factual development of the issues presented." Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). Nor would our review "inappropriately interfere with further administrative action," id., because the regulation challenged here, promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties, is quite clearly definitive. Second, as to hardship, veterans must — on pain of forfeiting benefits — promptly abide by the amended regulation in claims for service connection of PTSD resulting from personal assault.

Whether or not this would suffice under the second prong of the Abbott Laboratories ripeness test, the Supreme Court has recognized that in certain instances, Congress has specifically instructed the courts to review agency rules preenforcement. See Ohio Forestry, 523 U.S. at 737, 118 S.Ct. 1665 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Harrison v. PPG Indus., Inc., 446 U.S. 578, 592-93, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980); 15 U.S.C. § 2618 (Toxic Substances Control Act) (providing preenforcement review of agency action); 30 U.S.C. § 1276(a) (Surface Mining Control and Reclamation Act of 1977) (same); 42 U.S.C. § 6976 (Resource Conservation and Recovery Act of 1976) (same); 42 U.S.C. § 7607(b) (Clean Air Act) (same); 43 U.S.C. § 1349(c)(3) (Outer Continental Shelf Lands Act) (same)). We believe that the judicial review provision of 38 U.S.C. § 502 is another instance in which Congress has declared its preference for preenforcement review of agency rules. Such statutes, the Supreme Court has said, permit "judicial review directly, even before the concrete effects normally required for [Administrative Procedure Act] review are felt." Lujan, 497 U.S. at 891, 110 S.Ct. 3177. Accordingly, this is a ripe situation in which "Congress explicitly provides for our correction of the administrative process at a higher level of generality," id. at 894, 110 S.Ct. 3177, than the general ripeness test demands.

I. BACKGROUND

When a veteran seeks service connection for a disability, the agency of original jurisdiction, usually a VA regional office, is required to analyze and evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records; the official history of each organization in which the veteran served; the veteran's military records; and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2000); 38 C.F.R. § 3.303(a) (2002). With respect to injuries or disabilities incurred in or aggravated by combat, including psychiatric disabilities, the Secretary of Veterans Affairs ("Secretary") is required to accept, as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by service, "satisfactory lay or other evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (2002). The Secretary is also required to resolve every reasonable doubt in this determination in favor of the veteran. Id.

On October 16, 2000, the VA issued a notice of proposed rulemaking to amend 38 C.F.R. § 3.304(f), concerning the proof necessary to establish occurrence of a stressor in claims for service connection of PTSD resulting from in-service, personal assault. Post-Traumatic Stress Disorder Claims Based on Personal Assault, 65 Fed.Reg. 61,132 (Oct. 16, 2000). The VA proposed to amend § 3.304(f) to provide that evidence other than the veteran's service records may be sufficient to establish the occurrence of the stressor and that the VA may not deny such claims without first advising the claimant that evidence from sources other than the veteran's service records may prove the stressor occurred. Id. Section 3.304(f) of title 38, Code of Federal Regulations, entitled "Direct service connection; wartime and peacetime," states:

(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires 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. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below:

(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 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. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

38 C.F.R. § 3.304(f) (emphases added). The VA adopted the proposed rule, which became effective March 7, 2002. Post-Traumatic Stress Disorder Claims Based on Personal Assault, 67 Fed.Reg. 10,330-31 (Mar. 7, 2002). On May 3, 2002, NOVA timely filed a petition for review of 38 C.F.R. § 3.304(f), and we have jurisdiction to review the validity of the regulation challenged here pursuant to 38 U.S.C. § 502.

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