Hall v. Shinseki , 717 F.3d 1369 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
TONY C. HALL,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7115
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4309, Judge Robert N. Davis.
______________________
Decided: June 7, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel and MARTIE ADELMAN, Staff
2 TONY HALL v. SHINSEKI
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before RADER, Chief Judge, SCHALL and PROST, Circuit
Judges.
PROST, Circuit Judge.
Tony Hall appeals the decision of the Court of Appeals
for Veterans Claims (“Veterans Court”) affirming the
denial of his disability claim for post-traumatic stress
disorder (“PTSD”). Because the Veterans Court made no
error of law, we affirm.
I. BACKGROUND
On April 25, 1990, Mr. Hall entered active duty in the
Army. However, he “refused to go to basic training” and
asked to go home. J.A. 34. He also “threatened to hurt
either himself or someone else,” demonstrated a “phobia
of people in general,” and admitted to receiving one year’s
probation after an “arrest for carrying a gun.” J.A. 34. A
report from an in-service psychiatric evaluation showed
that Mr. Hall was believed to suffer from an “avoidant
personality disorder.” J.A. 35. His superior officers and
multiple counselors recommended that he be terminated
from service. Mr. Hall was officially discharged from the
Army on May 9, 1990, fifteen days after he entered ser-
vice.
In August 2006, Mr. Hall filed a claim for disability
benefits with the Veteran’s Administration (“VA”).
Among other grounds for his claim, 1 Mr. Hall asserted
1 The Veterans Court addressed several of those
other grounds in its decision, but Mr. Hall appeals only
the denial of his disability claim based on PTSD. We
therefore limit our opinion to the facts and issues relevant
to that aspect of Mr. Hall’s claim.
TONY HALL v. SHINSEKI 3
that he suffered PTSD caused by an in-service sexual
assault (a “military sexual trauma” or “MST”) perpetrated
by a superior officer. J.A. 37. The regional office of the
VA denied his claim for lack of service connection because,
in part, Mr. Hall failed to demonstrate a “verifiable mili-
tary stressor.” J.A. 24.
The Board of Veterans Appeals (“Board”) affirmed the
denial. It agreed that Mr. Hall had failed to prove that
the alleged sexual assault actually occurred. The Board
first held that Mr. Hall could not rely solely on his allega-
tions and statements to prove the assault occurred be-
cause the regulation he argued authorized him to do so,
38 C.F.R. § 3.304(f)(3), did not apply to sexual assault
stressors. The Board then concluded that Mr. Hall’s
allegations of a sexual assault deserved little weight
because he was not a “credible historian.” J.A. 37. The
Board reasoned that Mr. Hall never initially mentioned a
sexual assault in his claim, had been diagnosed with
“psychotic symptoms that included paranoid delusions
and ideations,” indicated on a supporting VA form that
his stressor occurred four days after his discharge from
the Army, twice falsely claimed that he served in the
Army for three years, and asserted—without any sup-
port—that he engaged in combat while in service. J.A.
36-38. The Board also determined that there was no
credible evidence corroborating Mr. Hall’s sexual assault
allegations: there were “no official reports of an assault,”
“service or service treatment reports [did not] contain any
notion of an assault,” and the few statements in medical
reports linking Mr. Hall’s PTSD to an MST were based on
his unreliable oral history. J.A. 38. The Board thus
found that Mr. Hall had presented insufficient proof that
the alleged sexual assault occurred and, therefore, was
not eligible for benefits.
On appeal, the Veterans Court affirmed the Board’s
decision. It rejected Mr. Hall’s argument that the Board
erred by failing to apply 38 C.F.R. § 3.304(f)(3) to his
4 TONY HALL v. SHINSEKI
claim. That regulation, the court held, required Mr. Hall
to demonstrate that the alleged sexual assault was “relat-
ed to [his] fear of hostile military or terrorist activity” and
was “consistent with the places, types, and circumstances
of [his] service”—a showing he failed to make. J.A. 2.
Mr. Hall timely appealed the Veterans Court’s deci-
sion.
II. DISCUSSION
Mr. Hall raises a single argument on appeal: the Vet-
erans Court legally erred by holding 38 C.F.R.
§ 3.304(f)(3) inapplicable to his claim. 2 We have jurisdic-
tion under 38 U.S.C. § 7292 and review such questions of
law de novo. Akers v. Shinseki, 673 F.3d 1352, 1355 (Fed.
Cir. 2012).
In order to prove the required service connection for a
PTSD disability claim, a veteran normally must provide
“credible supporting evidence that the claimed in-service
stressor occurred.” 38 C.F.R. § 3.304(f). However, the
subsection Mr. Hall argues should apply to his claim,
§ 3.304(f)(3), grants veterans a special exception to that
normal evidentiary burden by permitting them to rely on
their lay testimony alone without corroborating evidence
to prove that their claimed in-service PTSD stressor
occurred. The subsection states:
If a stressor claimed by a veteran is related to the
veteran’s fear of hostile military or terrorist activi-
ty and a VA psychiatrist or psychologist, or a psy-
2 The government asserts that Mr. Hall waived any
argument concerning § 3.304(f)(3) because he “omitted
two phrases found in th[at] section” in his argument
before the Veterans Court. Appellee’s Br. 7. While those
omissions might constitute poor briefing, there was no
waiver: Mr. Hall plainly challenged the denial of his
claim based on a failure to apply § 3.304(f)(3).
TONY HALL v. SHINSEKI 5
chiatrist or psychologist with whom VA has con-
tracted, confirms that the claimed stressor is ade-
quate to support a diagnosis of posttraumatic
stress disorder and that the veteran’s symptoms
are related to the claimed stressor, in the absence
of clear and convincing evidence to the contrary,
provided the claimed stressor is consistent with
the places, types, and circumstances of the veter-
an’s service, the veteran’s lay testimony alone
may establish the occurrence of the claimed in-
service stressor. For purposes of this paragraph,
“fear of hostile military or terrorist activity”
means that a veteran experienced, witnessed, or
was confronted with an event or circumstance that
involved actual or threatened death or serious in-
jury, or a threat to the physical integrity of the
veteran or others, such as from an actual or poten-
tial improvised explosive device; vehicle-imbedded
explosive device; incoming artillery, rocket, or mor-
tar fire; grenade; small arms fire, including sus-
pected sniper fire; or attack upon friendly military
aircraft, and the veteran’s response to the event or
circumstance involved a psychological or psycho-
physiological state of fear, helplessness, or horror.
38 C.F.R. § 3.304(f)(3) (emphases added).
As its plain language indicates, subsection (f)(3) ap-
plies only if a veteran has a “fear of hostile military or
terrorist activity.” Id. The subsection expressly requires
that fear to have originated from an “event or circum-
stance” that the veteran “experienced, witnessed, or was
confronted with” and that “involved actual or threatened
death or serious injury, or a threat to the physical integri-
ty of the veteran or others.” Id. It sets forth several
examples of such events or circumstances. Id. Read in
context of the subsection’s use of the word “hostile,” those
examples indicate that the “event or circumstance” must
have been part of terrorist activity (which is innately
6 TONY HALL v. SHINSEKI
hostile) or part of enemy military activity (since only
enemy, not friendly forces, are hostile). See id. (“incoming
artillery, rocket or mortar fire,” “suspected sniper fire,”
and “attack upon friendly military aircraft” (emphases
added)). We therefore conclude that § 3.304(f)(3) can
apply only if a veteran’s claimed in-service PTSD stressor
relates to an event or circumstance that a veteran experi-
enced, witnessed, or was confronted with and that was
perpetrated by a member of an enemy military or by a
terrorist. 3 See id.; see also Acevedo v. Shinseki, 25 Vet.
App. 286, 291 (2012) (“[T]he examples provided [in sub-
section (f)(3)] all involve actions originating from individ-
uals who commit hostile military or terrorist acts toward
the U.S. military, not nefarious, or even criminal, acts of
one service member directed at another service mem-
ber.”).
Mr. Hall asserts that such an interpretation of the
scope of § 3.304(f)(3) does not comport with the subsec-
tion’s regulatory history. That argument is unconvincing.
In response to public comments made during the notice
period prior to enactment of the subsection, the VA stated
that “th[e] regulation is not limited to events or circum-
stances perpetrated by a foreign enemy,” that “fear of
hostile military or terrorist activity . . . is not limited to
any particular class of individuals,” and that the exam-
ples in the subsection are “to illustrate what qualifies as
an event or circumstance, not a defining restriction.” 4
3 Of course, for § 3.304(f)(3) to apply, several other
requirements must be met. For example, the stressor
must be “consistent with the places, types, and circum-
stances of the veteran’s service” and the veteran had to
have experienced “fear, helplessness or horror” because of
the event or circumstance he faced.
4 Mr. Hall’s counsel highlighted the sections of reg-
ulatory history we address not only in the briefing he
submitted on behalf of Mr. Hall, see Reply Br. 5-6, but
TONY HALL v. SHINSEKI 7
Stressor Determinations for Posttraumatic Stress Disor-
der, 75 Fed. Reg. 39843-01, 39844 (July 13, 2010). The
VA made those statements to clarify that § 3.304(f)(3)
could extend to “events such as the injuring or killing of
civilians” and to “domestic as well as foreign activity.” Id.
Our reading of § 3.304(f)(3) does not prevent its applica-
tion to the injuring or killing of civilians or to domestic
activity perpetrated by a domestic enemy (which can fall
under a natural reading of the term “terrorist activity”).
And we see the examples in § 3.304(f)(3) as illustrative of
the proper interpretation of the term “hostile” when read
in context of the whole subsection and in light of the
special evidentiary exceptions § 3.304(f) affords to particu-
lar veterans. See 38 C.F.R. §§ 3.304(f)(1) (providing
special evidentiary exceptions to veterans who were
diagnosed with PTSD during service); 3.304(f)(2) (provid-
ing special evidentiary exceptions to veterans whose
claimed PTSD stressor is related to combat); 3.304(f)(4)
(providing special evidentiary exceptions to veterans who
also in a Rule 28(j) letter filed with the court after oral
argument. Of course, if the letter presented new argu-
ment, it would be improper. See Desper Prods., Inc. v.
QSound Labs, Inc., 157 F.3d 1325, 1335 (Fed. Cir. 1998).
But rearguing identical points from briefing already
submitted based on authority already fully cited and
argued to the court in that briefing is likewise improper.
See Fed. R. App. P. 28(j) (“If pertinent and significant
authorities come to a party’s attention after the party’s
brief has been filed—or after oral argument but before
decision—a party may promptly advise the circuit clerk
by letter . . . .” (emphases added)). The purpose of Rule
28(j) is not to expand the page limit for briefing or permit
counsel to highlight certain content of the briefing after
oral argument.
8 TONY HALL v. SHINSEKI
were prisoners-of-war); 3.304(f)(5) 5 (providing special
evidentiary exceptions to veterans whose PTSD claim is
“based on in-service personal assault”). Moreover, of
particular relevance here, the VA specifically refused
public suggestions that “the rule should cover stressors
such as MST, abuse by military personnel of subordinate
military personnel, harassment, suicide of a fellow service
member, witnessing a military vehicle accident in the
United States, a fellow soldier’s or sailor’s post-service
suicide, and social, political, and economic discrimination”
because those suggestions were “outside the scope of th[e]
rule.” 75 Fed. Reg. at 39845 (emphasis added).
In light of our reading of § 3.304(f)(3), we see no legal
error in the Veterans Court’s decision. The court held in
part that subsection (f)(3) does not apply to Mr. Hall’s
claim because Mr. Hall failed to show that his claimed
stressor related to his “fear of hostile military or terrorist
activity.” Mr. Hall argues that to be error because his
asserted PTSD stressor relates to “his fear of [a] hostile
sexual assault . . . by his superior in the military.” Appel-
lant’s Br. 8-9. But Mr. Hall has not shown—and does not
allege—that the assault he claims to have experienced
was perpetrated by a member of an enemy military or by
a terrorist. Therefore, Mr. Hall’s claimed PTSD stressor
is not related to his “fear of hostile military or terrorist
activity” as required by § 3.304(f)(3). Accordingly, the
Veterans Court correctly held that subsection (f)(3) does
not apply to Mr. Hall’s claim.
AFFIRMED
5 A large part of Mr. Hall’s briefing focuses on how
the existence of § 3.304(f)(5) does not prevent the applica-
tion of subsection (f)(3). Because of our holding and the
scope of issues on appeal, we need not decide that point or
whether subsection (f)(5) applies to Mr. Hall’s claim.