CHARLES L. KAYS, JR., Claimant-Appellant
ROBERT D. SNYDER, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-1859, Judge Alan G. Lance Sr.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
M. Tomlinson, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee. Also represented by Benjamin C.
Mizer, Robert E. Kirschman, Jr., Scott D. Austin; Y. Ken Lee,
Martie Adelman, Office of General Counsel, Department of
Veterans Affairs, Washington, DC.
Reyna, Taranto, and Hughes, Circuit Judges.
Hughes, Circuit Judge.
L. Kays appeals from a final judgment of the United States
Court of Appeals for Veterans Claims. The Veterans Court
affirmed a Board of Veterans' Appeals decision denying
Mr. Kays's claim for disability compensation for
post-traumatic stress disorder because he failed to establish
credible evidence of the in-service stressor necessary to
support a PTSD claim. On appeal, Mr. Kays challenges the
Veterans Court's decision regarding the in-service
stressor and, particularly, the standard of review it applied
to the Board's finding regarding the claimed stressor.
Because the Veterans Court applied the correct standard of
review, and because it correctly determined that the
regulations require credible supporting evidence that the
claimed in-service stressor occurred to the veteran, we
Kays served in the United States Navy from August 1972 to
August 1976. In 2005, he filed a claim with the Department of
Veterans Affairs for benefits for disability caused by PTSD.
He alleged that two non-combat stressors during his service
caused his PTSD. First, he claims that he was stabbed during
a fight as he left an Enlisted Men's Club. Second, he
claims that while he was off-duty and taking diving lessons,
he was asked to help with the recovery effort of a downed
civilian helicopter. When he dove into the water, he was
separated from the group and became stressed and scared.
establish that the alleged in-service stressors occurred, Mr.
Kays submitted statements, records, and in-person testimony
about the events surrounding the stabbing and the helicopter
incident. Mr. Kays also submitted a newspaper article
entitled "Fatal 'Copter Crash Probed" and dated
Monday, January 12, 1976. J.A. 192. The article describes how
the Maryland state and marine police investigated a
helicopter crash that occurred the preceding Friday. The
pilot died three hours after the accident and a helicopter
mechanic was treated for exposure and later released from a
local hospital. The article did not mention that any civilian
diving students were involved with rescue efforts.
2005, the Regional Office denied Mr. Kays's claim for
service connection for PTSD, and in 2007, the Board of
Veterans Appeals (Board) remanded for further development of
the record. The Regional Office again denied the PTSD claim
and, in 2010, the Board affirmed that decision. While this
case was pending appeal at the Veterans Court, the pertinent
regulation, 38 C.F.R. § 3.304(f), was amended and the
Veterans Court issued a decision holding that the amendments
to § 3.304(f) were retroactive. See Ervin v.
Shinseki, 24 Vet.App. 318 (2011). At the parties'
request, the Veterans Court remanded this case to the Board.
Board subsequently denied Mr. Kays's claim for
compensation because he did not present credible evidence
establishing that the claimed stressors occurred.
Specifically, the Board found that statements by Mr. Kays and
his former spouse about the alleged stabbing were not
credible because they were unsupported and contradicted by
other evidence in the record. The Board also found that Mr.
Kays's testimony about his involvement in a traumatizing
search and rescue was not credible because of the lack of
supporting detail in the article, his delay in reporting the
event, and his changing and inconsistent story.
Kays appealed to the Veterans Court, arguing that it should
review de novo the Board's decision on whether a veteran
has submitted credible supporting evidence that a claimed
in-service stressor occurred. The Veterans Court disagreed
and found the Board's decision to be a question of fact
reviewed under the clearly erroneous standard. Mr. Kays
appeals. We have jurisdiction pursuant to 38 U.S.C.
§§ 7292(a), (c), (d)(1).
review questions of statutory and regulatory interpretation
de novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312
(Fed. Cir. 2014). A non-combat veteran seeking to establish
service connection for PTSD must establish (1) a current
medical diagnosis of PTSD; (2) a link between the 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). At issue here is
the third requirement-whether there is credible supporting
evidence that the claimed stressor actually occurred. That is
a factual determination, to be made in the first instance by
the Board, and reviewed by the Veterans Court under a clearly
erroneous standard. See, e.g., Sizemore v.
Principi, 18 Vet.App. 264, 270 (2004) ("Whether a
veteran has submitted sufficient corroborative evidence of
his or her claimed in-service stressors is also a factual
determination that is reviewed under th[e] [clearly
erroneous] standard."). Mr. Kays argues, however, that
rather than a factual ...