Veteranclaims’s Blog

March 30, 2011

Single Judge Application, Revised CFR 3.304(f), Applicability to Pending Claim before Veterans Court

Excerpt from decision below:
“The Board determined that the appellant had a diagnosis of PTSD and did not have combat service. The Board denied the claim, finding that there was no credible supporting evidence corroborating an in-service stressor event. Given this Court’s recent holding in Ervin v. Shinseki, __ Vet.App. __, No. 08-3287, 2011 WL 835470 at *7 (March 10, 2011)(“[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted.”), the Court will grant the appellant’s motion and remand the appellant’s claim for an acquired psychiatric disorder, to include PTSD, in order for the Board to have the opportunity to determine whether the factual basis for the appellant’s PTSD claim falls
within the ambit of the revised § 3.304(f).”

========================================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2028
WILLIAM D. FOUGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

On June 15, 2010, the pro se appellant, William D. Fought, filed a Notice of Appeal of a July 20, 2009, Board of Veterans’ Appeals ( Board) decision. On July 22, 2010, the appellant moved to remand the appeal because the Board failed to “adequately assist [him] in verifying [his] PTSD [(post-traumatic stress disorder)] stressors as required by” VA’s June 13, 2010, change to 38 C.F.R. § 3.304(f). The Secretary opposed the appellant’s motion and argued that the newly revised § 3.304(f) was not for application in this case because it “does not apply to cases that are currently on appeal” to the Court. On August 9, 2010, the Court ordered this case stayed pending further order of the Court.
Under 38 U.S.C. § 7252, the Court has exclusive jurisdiction to review final decisions of the Board. The July 20, 2009, Board decision denied service connection for an acquired psychiatric disorder, including PTSD. The Board determined that the appellant had a diagnosis of PTSD and did not have combat service. The Board denied the claim, finding that there was no credible supporting evidence corroborating an in-service stressor event. Given this Court’s recent holding in Ervin v. Shinseki, __ Vet.App. __, No. 08-3287, 2011 WL 835470 at *7 (March 10, 2011)(“[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted.”), the Court will grant the appellant’s motion and remand the appellant’s claim for an acquired psychiatric disorder, to include PTSD, in order for the Board to have the opportunity to determine whether the factual basis for the appellant’s PTSD claim falls within the ambit of the revised § 3.304(f). The Court does not make any decision as to whether any error existed in the Board’s July 20, 2009, decision as that decision is now vacated.

Upon consideration of the foregoing, it is
ORDERED that the stay of proceedings is lifted. It is further
ORDERED that the appellant’s motion to remand is granted and the Board’s
July 20, 2009, decision is VACATED and REMANDED for further proceedings consistent with this order.
DATED: March 28, 2011
BY THE COURT:
WILLIAM A. MOORMAN
Judge
Copies to:
William D. Fought
VA General Counsel (027)
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