It’s the Law May 2010
by Richard Cohen, Esq.
©2010 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com
PTSD
In Arzio v. Shinseki no.2009-7107 decided April 19, 2010 by the Federal Circuit the Court explored whether there are alternative methods in the VA’s regulations for a veteran to obtain service-connected benefits for PTSD without proving the existence of credible evidence of an in-service stressor. While in service this non-combat veteran was diagnosed with a variety of psychological conditions in an attempt to understand his complaints of right foot and leg pain and chest pain. The diagnoses included psychogenic pain, psychophysical reaction, psychoneurosis and conversion reaction. Many years later the VA denied the veteran’s claim for benefits based on PTSD acknowledging that he was receiving treatment for psychiatric problems including PTSD but rejecting the claim for lack of proof of creditable in-service stressors. In supporting the denial the Federal Circuit concluded that 38 CFR § 3.304(f) makes clear that credible evidence of an in-service stressor is a mandatory element in any claim for disability compensation for PTSD. Further, the Court rejected the veteran’s argument that 38 CFR § 3.303 provides an alternative method of establishing service connection without proof of an in-service stressor.
In yet another decision we can see that the Courts are still not in total agreement as to whether equitable tolling is available at the agency level when a veteran has been mislead by the VA. Both the Veterans Court and the Federal Circuit accepted the veteran’s assertion that VA personnel has erroneously told the veteran that he was not permitted to file a claim for benefits until his other-than-honorable discharge was corrected. Nevertheless, in Butler v. Shinseki no 2009-7066, decided April 23, 2010, the Federal Circuit relied on its earlier decision in Andrews v. Principi 351 F.3d 1134,1137-38 (Fed. Cir. 2003) agreed with the Veterans Court that the one year period of presumptive retroactivity which the veteran would have received had he filed his claim within one year of discharge was not subject to waiver or relaxation. One Judge dissented, asserting that this situation is different than Andrews because in this case there was misinformation or erroneous advice given to the veteran because that the court in Andrews had not stated that equitable tolling is never available.
A recent Veterans Court decision is a reminder of the distinction between an appeal to the Board of Veterans’ Appeals and an appeal to the Veterans Court. In Posey v. Shinseki no 08-0240, decided April 23, 2010, the Court noted that although the veteran stated that he had wanted to appeal a BVA decision, the form used was titled “Appeal to Board of Veterans’ Appeals” and stated that he wanted to have a video conference hearing. Because the letter did not indicate that the veteran wanted to have the Court review the Board’s decision, the document was determined to be a request to reconsider the Board’s decision and not an appeal to the Veterans Court.