Have you seen the new version of the movie “The Alamo?” The one back in 2004 with Billy Bob Thornton, Jason Patric and a host of other big name actors?
Well, there is a scene in the movie where Jim Bowie (who is annoyed by William Travis’ high-and-mighty airs) says to Travis:
“Buck, sometimes it’s not so much WHAT you say that is the problem, but HOW you say it.”
I tried to find a video clip of the quote, but alas, came up empty handed.
That quote is a GREAT description of a common misstep by many Veterans trying to prove and win their own VA Claims: far too often, the reason a Veteran loses their claim is the reverse.
The problem is not HOW they said it, it’s WHAT they said.Or what they didn’t say.
A great example comes to us from a rare precedential opinion from the Federal Circuit Court of Appeals issued January 25, 2017.
The holding of the case – or the rule of law that was drawn out from a particular set of facts – in Kays v. Snyder, #16-1314 (January 25, 2017) is one that only the appellate lawyers will find interesting.
But it’s not the holding I want to tell you about.
It’s a curious sentence in the second to last paragraph of the decision.
First, let me tell you the facts of the case.
A Navy Veteran who served from 1972 – 1976 was claiming service connection for PTSD based on a couple incidents, but the one at issue was that while assisting in the water rescue of the crew of a downed civilian chopper, he became separated from his group of divers and thought he was going to die.
Now, as we know, 38 CFR 3.304(f) requires a veteran to provide “credible supporting that the claimed in-service stressor occurred”.
In this case, the Veteran submitted his testimony and a newspaper article outlining details of the crash. The article contained no reference to Navy divers being used, and no reference to the Veteran specifically.
The Board found, and the Court agreed, that the Veteran had failed to provide credible evidence of his in-service stressor because the newspaper article did not place him in the rescue efforts. In other words, there was nothing to corroborate that the claimed in-service stressor occurred….TO THE VETERAN.
That last phrase — that is the key thing. As Shakespeare might have said, “Ay, there’s the rub“.
In this case, the Veteran just proved that the event occurred.
He did not prove that it occurred to him.
On appeal to the Federal Circuit, the Veteran argued that 38 CFR 3.304(f) required only that the Veteran prove the occurrence of the stressor event. He argued that the diagnosing physician had the responsibility to prove that the Veteran was credible when he said it occurred to him.
This argument did not persuade the Court, and they rejected that analysis.
“Furthermore, Mr. Kays’s argument—that “a current medical diagnosis of PTSD” assures that the in-service stressor occurred to the veteran—misunderstands the ordinary role of a physician diagnosing PTSD. A physician is not expected to do a detailed investigation of a veteran’s claimed in-service stressors. And a physician’s diagnosis of PTSD does not necessarily identify what stressor caused it. Indeed, PTSD could result from an event not identified by the veteran. That is why the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred.”
And it is the phrase in bold that is interesting.
Did the Court’s opinion ‘suggest’ the Board is getting something wrong?
Every week, I scour Board decisions for interesting cases and changes in the law to tell y’all about.
And if I had a nickel for every time the BVA denied service connection of PTSD for lack of proof of a stressor event – because the diagnosing doctor did not discuss the stressor event – I would be wealthy enough to be the Secretary of Education.
What we have here is a wrinkle in the application of the law by the BVA – on one hand, the Board seems to insist on proof that the stressor underlying the doctor’s PTSD diagnosis is the same as the stressor that the Veteran claims occurred in-service.
On the other hand, this Federal Circuit opinion appears to suggest different.
In the end, the quote above from the Federal Circuit appears to be dicta (a $100 lawyer word for ‘reasoning that supports the established rule of law’). In the legal world, dicta should not be relied on as a holding of a case. It only gives insight of the Court’s reasoning – and often hints at the reasoning that might have yielded a different outcome.
Where does that leave you, the Veteran, when proving a non-combat stressor in a PTSD Claim?
The SAFEST course of action is to prove the “current disability” element of your service connection argument laid out nice and clean:
- Your testimony (written, preferably, in a sworn declaration) of the stressor occurred to you;
- If the stressor is non-combat, credible evidence supporting that the stressor event occurred and now, in light of the Kay holding, proof you were involved in the stressor event; and,
- A PTSD diagnosis that is connected to the same stressor that you identified and corroborated.
One last word of caution – while I have no statistical proof – I feel like the BVA Decisions I am seeing in the BVA decision database are increasingly challenging the credibility of the Veteran because he (or she) did not consistently tell a story.
This is why it is imperative to have a copy of your C-File before you submit ANY testimony to the VA, in writing or orally. You may have filed a claim decades ago, and because memories ebb and flow over time, you may not tell the story the exact same way.
If you do find that your story lacks “integrity” with the rest of the record, then it is really vital that you provide some explanation why that happened.
Don’t go overboard, or you’ll seem defensive…take an honest assessment if there is a material factual difference in your story, and explain it as succinctly as you can.
Passage of time, fading of memories, in denial of an earlier mental health problem, memory loss issues (memory loss is a common symptom associated with more severe PTSD), etc.