Moran v. Principi , 2002 U.S. Vet. App. LEXIS 588 ( 2002 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 99-754
DAVID C. MORAN , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and FARLEY and STEINBERG, Judges.
ORDER
The appellant appeals a January 29, 1999, decision of the Board of Veterans' Appeals (BVA)
that denied a claim for service connection for post-traumatic stress disorder (PTSD). The appellant
argues in his brief, inter alia, that 38 C.F.R. § 3.304(f) is invalid on the ground that it imposes on
noncombat veterans seeking service connection for PTSD an evidentiary burden that is greater than
that required for other disabilities. Specifically, a noncombat veteran seeking service connection for
PTSD must provide "credible supporting evidence that the claimed in-service stressor occurred."
38 C.F.R. § 3.304(f) (2001); see Doran v. Brown, 6 Vet.App. 283, 288-89 (1994). Whereas an
appellant seeking service connection for a disability other than PTSD may show in-service
incurrence or aggravation of a disease or injury by lay evidence. See 38 U.S.C. § 1154(a); 38 C.F.R.
§ 3.303(a) (2001); see also Smith v. Derwinski, 2 Vet.App. 147, 148 (1992) (per curiam order);
Cartright v. Derwinski, 2 Vet.App. 24, 25-26 (1991).
In view of the appellant's argument, the Court requires further briefing on the following
questions: Does the provision of § 3.304(f) quoted above provide, in essence, that uncorroborated
lay evidence as to a nonmedical question cannot meet the benefit-of-the-doubt threshold of 38 U.S.C.
§ 5107(b)? If so, is the Secretary authorized under 38 U.S.C. § 501(a)(1) to promulgate such a
regulation?
Upon consideration of the foregoing, it is
ORDERED that, not later than 30 days after the date of this order, the appellant file and serve
on the Secretary a supplemental memorandum addressing the questions above. It is further
ORDERED that, not later than 30 days after the appellant's service, the Secretary file and
serve on the appellant a supplemental memorandum responding to the appellant's memorandum and
addressing the questions above. It is further
ORDERED that, not later than 14 days after the Secretary's service, the appellant may file
and serve a reply. Pursuant to Rule 34 of the Court's Rules of Practice and Procedure, the Clerk will,
after supplemental briefing is complete, schedule oral argument as the business of the Court permits.
DATED: August 15, 2002 PER CURIAM.
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