CAVC Remand in PTSD Case for Not Addressing Fear of Hostile Attack

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In some cases when the VA denies a claim for PTSD, it often neglects to consider whether the veteran was in a combat theater and in fear of a hostile military or terrorist attack.   Our lawyers recently got a remand at the U.S. Court of Appeals for Veterans claims for a veteran who was exposed to fear of a hostile military or terrorist attack.  

In this particular case, the veteran served on active duty during the Vietnam War.  The evidence of record indicated that he served in Operation Frequent Wind and Operation Eagle Pull in 1975.  The evidence revealed that these operations involved the evacuation of Saigon.  The evidence indicated that there was some ground fire during these operations.  

The veteran was diagnosed on several occasions with chronic PTSD.  The veteran indicated that his stressors included activities related to his battalion landing team activity.  The veteran also stated that he heard rockets while in Vietnam that constantly reminded him that he could be killed.  Indeed, the evidence of record contained eye-witness accounts regarding the final days before the fall of Saigon which corroborated that shells and rockets pounded the outskirts of the city.  The veteran further stated that that he didn’t think he would go back home alive.  In considering these statements from the veteran, as well as others, the Vet Center diagnosed the veteran with PTSD in accordance with the DSM-IV.  In this regard, the Board conceded that the veteran’s statements could be construed as fear of hostile military takeover.  

The Board denied the veteran’s claim for lack of a verifiable PTSD stressor.  The Board also claimed that the fact that a VA exam had not previously been given demonstrated that there was no proof of a verifiable PTSD stressor. Interestingly, in acknowledging that the veteran’s statements may be construed as fear of a hostile military takeover, the Board stated that VA examiners have not confirmed that this would be adequate to support a diagnosis of PTSD and related that diagnosis to service.  

Our lawyers successfully argued that the Board’s decision about the duty to assist in providing an exam was problematic.  Under the PTSD regulation as amended in 2010, a veteran does not necessarily have to prove a verifiable stressor.  See 38 § C.F.R. 3.304(f)(3).  Thus, if the veteran had fear of hostile military or terrorist activity, and a VA psychologist or psychiatrist confirms that this is sufficient to support a PTSD diagnosis, then his statements alone can establish the stressor.  In this case we argued successfully that the VA’s rationale for not providing an exam was based solely on his inability to corroborate a stressor–but yet it appeared to acknowledge that his statements evidenced fear of a hostile military takeover.  Under section 3.304(f) only a VA psychiatrist or psychologist can address the issue of PTSD in the context of fear of hostile military or terrorist activity.  Accordingly, there was a reasonable possibility of substantiating the claim if an exam was provided.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Phrased differently, the Board essentially said that it does not need to provide an exam because the veteran has not proven a stressor.  But yet the Board will not consider service connection under 38 § C.F.R. 3.304(f)(3) because no VA examiner has confirmed the sufficiency of the stressor and related it to service.  It’s a circular argument!

To any veteran who has been denied a PTSD claim due to the absence of a corroborated stressor, this scenario gets the question: how is a veteran supposed to get a VA exam unless the VA provides it?  In this case, given the evidence of the veteran’s time, place, and circumstances of service, he was likely exposed to events that could make one fearful of hostile military or terrorist activity.  Therefore, there was a reasonable possibility of substantiating the claim, and the Board erred in not providing an exam.

Our veterans benefits attorneys presented these arguments in an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) and the result was a remand back to the BVA.

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Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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