Veteranclaims’s Blog

September 8, 2014

Fed.Cir. Young v. McDonald, No. 2013-7116(Decided: September 8, 2014); Lay Evidence; Effective Date PTSD Assignment

Excerpt from decision below:

“This case primarily involves the question of whether lay evidence alone can establish the effective date for an award of service connection due to PTSD or whether a medical diagnosis attesting to the existence of PTSD on the claimed effective date is necessary because of 38 C.F.R. § 3.304(f).”

=====================

“The Veterans
12 YOUNG v. MCDONALD

Court did not err in approving the Board’s decision to assign an effective date that reflects the earliest medical diagnosis of Young’s condition as PTSD.”

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United States Court of Appeals for the Federal Circuit
______________________
ROBERT G. YOUNG,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7116
______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 11-2661, Judge William A. Moorman.
______________________
Decided: September 8, 2014
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, of Topeka, Kansas, argued for claimant appellant. On the brief was SANDRA E. BOOTH, of Columbus, Ohio, for claimant-appellant.
ERIC P. BRUSKIN, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee.
On the brief were STUART F. DELERY, Assistant Attorney General, BRYANT SNEE, Acting Director, MARTIN F. HOCKEY, Assistant Director and L. MISHA PREHEIM,
2 YOUNG v. MCDONALD

Senior Trial Counsel. Of counsel on the brief were Y. KEN LEE, Deputy Assistant General Counsel, and CHRISTINA L. GREGG, Attorney, United States Department of Veterans
Affairs, of Washington, DC. Of counsel were MICHAEL J. TIMINSKI, Deputy General Counsel and BRIAN D. GRIFFIN, Attorney, United States Department of Veterans Affairs, of Washington, DC.
______________________
Before NEWMAN, LOURIE, and DYK, Circuit Judges.
DYK, Circuit Judge.

Robert G. Young (“Young”) appeals the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”), holding that the effective date for Young’s award of service connection due to post-traumatic stress disorder (“PTSD”) was March 10, 1989. We affirm.

BACKGROUND
This case primarily involves the question of whether lay evidence alone can establish the effective date for an award of service connection due to PTSD or whether a medical diagnosis attesting to the existence of PTSD on the claimed effective date is necessary because of 38 C.F.R. § 3.304(f).
Young served as a combat engineer with the United
States Army from October 1965 until August 1967, performing
a tour of duty in Vietnam during that time. In
September 1984, Young filed an application for benefits
with the Veterans Affairs (“VA”) Regional Office (“RO”).
The application described his injuries as “‘anxiety,’ ‘bad
nerves,’ and ‘unable to adjust to society.’” J.A. 1. The RO
interpreted Young’s claim as a request for an award of
service connection due to PTSD, but denied the request
after Young failed to report for a VA medical examination.
In 1989, a VA psychiatrist submitted a letter, stating that
Young “has been under my care since March 10, 1989”
YOUNG v. MCDONALD 3
and “is suffering from PTSD.” J.A. 101. Nonetheless, the
RO denied Young’s claim in rating decisions dated December
1989, February 1990, and April 1991 because the
evidence of record did not establish his exposure to an inservice
stressor. Young appealed the decisions to the
Board, which denied his claim in July 1991. Young did not
appeal to the Veterans Court, and the Board’s decision
became final.
In August 1992, Young filed a request to have his
claim reopened. The RO denied the request in October
1992, June 1993, February 1995, and March 1997. In May
1998, the RO received service department records documenting
Young’s exposure to an in-service stressor for
PTSD that had not been previously associated with his
file. 38 C.F.R. § 3.156(c)(1) provides that “if VA receives or
associates with the claims file relevant official service
department records that existed and had not been associated
with the claims file when VA first decided the claim,
VA will reconsider the claim.” Under such circumstances,
the claim is not treated as a new and material evidence
claim, see id. § 3.156(a), or a clear and unmistakable error
(“CUE”) claim, see id. § 3.105(a), but rather, is governed
by § 3.156(c).
Pursuant to § 3.156(c), the RO reopened Young’s
claim in 1998, after it received the service department
records related to his in-service stressor, and granted him
service connection with a 100% disability rating. The RO
assigned the award an effective date of August 11, 1992—
the date when the VA received Young’s request to reopen
the previously denied claim.
In March 2007, Young sought revision of the RO’s
May 1998 Rating Decision on the grounds of CUE. Young
argued that the RO committed CUE and that he was
entitled to an earlier effective date of September 7, 1984—
the date on which he filed his original claim. The RO
4 YOUNG v. MCDONALD
found no CUE, and Young appealed that decision to the
Board.
In May 2011, the Board concluded that the RO had
committed CUE with respect to its effective date determination.
The effective date of a benefits award is governed
by 38 U.S.C. § 5110,1 which provides in relevant part:
(a) Unless specifically provided otherwise in this
chapter, the effective date of an award based
on . . . a claim reopened after final adjudication
. . . shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt
of application therefore.
38 U.S.C. § 5110(a). For the purposes of determining the
effective date of claims reopened on the basis of service
department records, 38 C.F.R. § 3.156(c)(3) provides that
“[a]n award made based all or in part on the records
identified by paragraph (c)(1) [i.e., service department
records] of this section is effective on the date entitlement
arose or the date VA received the previously decided
claim, whichever is later, or such other date as may be
authorized by the provisions of this part applicable to the
previously decided claim.” 38 C.F.R. § 3.156(c)(3). According
to the Board, the proper effective date was either (1)
the date when the VA received Young’s original claim or
(2) the date his entitlement arose—whichever occurred
later. Although Young’s original claim was filed in 1984,
the Board determined that his entitlement arose on
March 10, 1989—when Young was determined to be
1 This provision was numbered under § 3010(a)
when Young filed his original claim in 1984, and has been
renumbered under § 5110(a) without change. Dep’t of
Veterans Affairs Health-Care Personnel Act of 1991, Pub.
L. No. 102-40, 105 Stat. 187, May 7, 1991.
YOUNG v. MCDONALD 5
suffering from PTSD and began receiving treatment—and
March 10, 1989, was assigned as the effective date.
Young appealed to the Veterans Court, arguing that
he was entitled to an earlier effective date corresponding
to the VA’s receipt of his original claim on September 7,
1984. The Veterans Court affirmed the Board, finding no
CUE in its decision to assign “the effective date as the
date of the medical examination record ‘establishing a
clear diagnosis of PTSD related to [Young’s] stressors.’”
J.A. 9. The Veterans Court decision relied on 38 C.F.R. §
3.304(f), pursuant to which “[s]ervice connection for
posttraumatic stress disorder requires medical evidence
diagnosing the condition.” 38 C.F.R. § 3.304(f). Although
Young complained of bad nerves and anxiety in his 1984
application, the Veterans Court concluded that those
statements were “immaterial to determining the date
entitlement arose in the context of the PTSD regulation
because the regulation clearly requires a medical diagnosis
of PTSD,” J.A. 10, and no medical diagnosis identified
his then-existing condition as PTSD. Because the earliest
available medical diagnosis of PTSD was March 10, 1989,
the Veterans Court found no CUE in the Board’s effective
date determination.
Young timely appealed to this court. We have jurisdiction
pursuant to 38 U.S.C. § 7292(a).
DISCUSSION
This court “shall hold unlawful and set aside any regulation
or any interpretation thereof (other than a determination
as to a factual matter) that was relied upon in
the decision of the Court of Appeals for Veterans Claims”
that we find to be “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B)
contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right; or
(D) without observance of procedure required by law.” Id.
6 YOUNG v. MCDONALD
§ 7292(d)(1). We review claims alleging “‘legal error in the
decision of the Court of Appeals for Veterans Claims
without deference.’” Wagner v. Principi, 370 F.3d 1089,
1091–92 (Fed. Cir. 2004) (quoting Szemraj v. Principi, 357
F.3d 1370, 1372 (Fed. Cir. 2004)). We have jurisdiction to
decide “whether the legal requirement of the statute or
regulation has been correctly interpreted in a particular
context where the relevant facts are not in dispute, that
is, whether there is an error of law.” Szemraj, 357 F.3d at
1375. However, we do not have jurisdiction to review “the
factual findings of when a disability was claimed or
service connection established.” Butler v. Shinseki, 603
F.3d 922, 926 (Fed. Cir. 2010).
The effective date of a claim reopened following the
receipt of service department records is “the date entitlement
arose or the date VA received the previously decided
claim, whichever is later.” 38 C.F.R. § 3.156; see also 38
C.F.R. § 3.400(r). The question here is whether the Veterans
Court erred in approving an effective date of March
10, 1989, for Young’s award of service connection due to
PTSD. The Veterans Court affirmed the Board because 38
C.F.R. § 3.304(f) sets forth the requirements for establishing
entitlement to service connection for PTSD and expressly
requires a medical diagnosis of the veteran’s
condition as PTSD. In light of this requirement, the
Veterans Court agreed with the Board that Young’s
“entitlement to service connection for PTSD could not
arise . . . until a medical examination establishing a clear
diagnosis of PTSD was performed.” J.A. 9–10.
Young argues that the Board and Veterans Court
erroneously applied 38 C.F.R. § 3.304(f) when assigning
his award’s effective date. He contends that the regulation
is relevant only when determining whether service connection
for PTSD should be awarded, not when determining
what the award’s effective date should be. We
disagree. Section 3.304(f) defines the conditions for entitlement
to service connection. It provides that “[s]ervice
YOUNG v. MCDONALD 7
connection for posttraumatic 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 inservice
stressor; and credible supporting evidence that the
claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f).
In order to determine the “date entitlement arose” within
the meaning of 38 C.F.R. § 3.156(c), it is necessary to look
at § 3.304(f). We do not read § 3.304(f) as providing that
entitlement can arise on a date for which there is no
medical diagnosis of the veteran’s condition as PTSD.
We note that the Secretary does not suggest that the
effective date of a PTSD claim is necessarily the date the
diagnosis is made or submitted to the VA. The Secretary
admits that a medical opinion could diagnose the presence
of the condition and identify an earlier onset date based
on preexisting symptoms. That did not occur here with
respect to the claimed 1984 date.2 Rather, the earliest
date for which there is a medical diagnosis of Young’s
existing condition as PTSD is March 10, 1989. That date
comes from a letter submitted by a VA psychiatrist stating
that “Mr. Young is suffering from PTSD” and “has
been under my care since March 10, 1989.” J.A.101. The
letter says nothing about Young’s condition or symptoms
prior to March 10, 1989.
However, Young argues that other evidence of record
establishes that his entitlement arose at least as early as
1984, establishing an effective date corresponding to the
VA’s receipt of his original claim on September 7, 1984.
He relies on his statements in his 1984 claim complaining
2 The psychiatrist’s letter establishing the effective
date was itself dated May 11, 1989, and the Secretary
agrees that the effective date goes back to March 10,
1989, when Young was first diagnosed and began receiving
treatment for PTSD.
8 YOUNG v. MCDONALD
of bad nerves, anxiety, and trouble adjusting to society,
and the Board’s determination that “the nerves and
anxiety [Young] complained of have been demonstrated to
be secondary to underlying chronic PTSD.” J.A. 50.
Quite apart from the specific provision of § 3.304(f),
lay evidence may be competent and sufficient to establish
the existence of a service-connected medical condition
only when “(1) a layperson is competent to identify the
medical condition, (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis
by a medical professional.” Jandreau v. Nicholson, 492
F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v.
Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“If the
Board concludes that the lay evidence presented by a
veteran is credible and ultimately competent, the lack of
contemporaneous medical evidence should not be an
absolute bar to the veteran’s ability to prove his claim of
entitlement to disability benefits based on that competent
lay evidence.”). There is no contention that Young’s claim
falls into the second Jandreau category—only the first
and third are at issue here. This case does not fall into
either of those categories.
The competence of lay testimony depends on the
nature of the condition. Jandreau, 492 F.3d at 1377 n.4.
In Jandreau, we remanded for the Veterans Court to
determine whether lay evidence was competent and
sufficient to establish that the veteran’s shoulder had
been dislocated. Id. at 1377. PTSD is not the type of
medical condition that lay evidence, standing alone, is
competent and sufficient to identify. “Because of the
complexity of PTSD, the application of careful clinical
judgment is necessary to identify and describe the relationship
between past events and current symptoms.
. . . PTSD can occur hours, months, or years after a
military stressor.” Veterans Administration, Dep’t of
YOUNG v. MCDONALD 9
Veterans Benefits (DVB) Circular 21-86-10, Post-
Traumatic Stress Disorder (Sept. 4, 1986); see also Nat’l
Council on Disability, Invisible Wounds: Serving Service
Members and Veterans with PTSD and TBI 2–3 (Mar. 4,
2009), available at http://www.ncd.gov/publications/2009/
March042009. In any event, 38 C.F.R. § 3.304(f) requires
a diagnosis of PTSD by a medical professional, and there
is no question raised as to its validity. While the regulation
establishes certain situations in which “the veteran’s
lay testimony alone may establish the occurrence of the
claimed in-service stressor,” id. § 3.304(f)(1)–(4), it does
not permit the veteran’s lay testimony to substitute for a
medical diagnosis of PTSD. The first Jandreau category is
inapplicable here.
Nor is the third Jandreau category applicable in this
case. To be sure, lay testimony could support a retrospective
medical diagnosis of pre-existing PTSD. In Buchanan,
we remanded for reconsideration of lay testimony
when there was a medical opinion stating that the veteran’s
schizophrenia manifested while he was in service,
years before the medical examination was performed. 451
F.3d at 1332–33. But here, there is no medical diagnosis
indicating that Young’s PTSD existed before March 10,
1989. The Board recognized that “the nerves and anxiety
[Young] complained of have been demonstrated to be
secondary to underlying chronic PTSD,” and therefore
treated his original 1984 application as “equivalent to a
claim for service connection for PTSD.” J.A. 50. While
Young’s contemporaneous description of his symptoms
justified applying regulations governing service connection
for PTSD to his original benefits application, his lay
testimony does not by itself establish his entitlement to
such benefits. Young’s entitlement could not arise until
the pertinent regulatory requirements were satisfied,
including the existence of “medical evidence diagnosing
the condition.” 38 C.F.R. § 3.304(f). The Veterans Court
did not err in approving an effective date that corresponds
10 YOUNG v. MCDONALD
to the earliest available medical diagnosis indicating that
his PTSD existed as of March 10, 1989.3
In the alternative, Young argues that 38 C.F.R.
§ 3.304(f), promulgated in 1993, was applied retroactively
to his 1984 claim, and that this was improper under
Princess Cruises, Inc. v. United States, 397 F.3d 1358,
1364 (Fed. Cir. 2004) (holding that determining retroactive
effect requires consideration of factors set forth in
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)).
As the government points out, the VA has long required a medical diagnosis of PTSD to establish service connection, as it did when Young filed his claim in 1984. At that time,

3 The cases on which Young relies—McGrath v. Gober,
14 Vet. App. 28 (2000) and DeLisio v. Shinseki, 25
Vet. App. 45 (2011)—are not to the contrary. In McGrath,
the Veterans Court remanded for redetermination because
there was a retrospective diagnosis, submitted in
1994, stating that the veteran “had been suffering demonstrable
and overt symptoms of PTSD since May 1975
when he began treating the appellant.” 14 Vet. App. at 32.
As discussed above, there is no retrospective diagnosis of
Young’s condition prior to March 1989, and the effective
date is not the date the diagnosis was submitted to the
VA—May 11, 1989. In DeLisio, the veteran had filed
separate benefits claims for distinct conditions that were
potentially causally related. The Veterans Court held that
the effective date of the later-filed claim could be the date
of the earlier-filed claim “when a claim is pending and
information obtained reasonably indicates that the
claimed condition is caused by a disease or other disability
that may be associated with service.” 25 Vet. App. at
55. Neither of those conditions is met here as Young’s
original claim is not pending and no information suggests
that his PTSD was caused by another disability diagnosed
later.
YOUNG v. MCDONALD 11

the VA regulation pertaining to service connection due to “mental disorders” stated:
It must be established first that a true mental
disorder exists. The disorder will be diagnosed in
accordance with the [American Psychiatric Association]
manual. A diagnosis not in accord with
this manual is not acceptable for rating purposes
and will be returned through channels to the examiner. 38 C.F.R. § 4.126 (1984). A department circular, issued in 1982, confirms that a medical diagnosis of PTSD was required to establish service connection when Young filed his claim. The circular, intended to “clarify the requirements for the establishment of service connection for PTSD,” expressly lists “[a] diagnosis of PTSD acceptable for rating purposes” as one of “three basic requirements [that] must be met to establish service connection for PTSD.” Veterans Affairs, DVB Circular 21-82-7, Post-Traumatic Stress Disorder Ratings (May 3, 1982). There is no question of retroactivity here, because a medical
diagnosis of PTSD was required to establish Young’s entitlement to service connection for PTSD when he filed his original claim in 1984. Indeed, Young appears to admit that a medical diagnosis of PTSD was required to establish entitlement to service connection for the condition.
A VA decision may be set aside for CUE only if the error was “the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made.” Cook v. Principi, 318 F.3d 1334, 1343 (Fed. Cir. 2002) (en banc) (quoting Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc)). To the extent that the Veterans Court referenced 38 C.F.R. § 3.304(f), Young has failed to show that it would have reached a different outcome on the effective date issue if it had referenced the language of the 1984 regulation instead. The Veterans
12 YOUNG v. MCDONALD

Court did not err in approving the Board’s decision to assign an effective date that reflects the earliest medical diagnosis of Young’s condition as PTSD.
AFFIRMED
No costs.

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