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Kays v. Snyder

United States Court of Appeals, Federal Circuit

January 25, 2017

CHARLES L. KAYS, JR., Claimant-Appellant
v.
ROBERT D. SNYDER, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

         Appeal 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.

          Martin 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.

          Before Reyna, Taranto, and Hughes, Circuit Judges.

          Hughes, Circuit Judge.

         Charles 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 affirm.

         I

         Mr. 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.

         To 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.

         In 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.

         The 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.

         Mr. 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).

         II

         We 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 ...


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