Veteranclaims’s Blog

January 17, 2018

Single Judge Application; Sanchez-Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed. Cir. 2014); § 3.304(f)(3); fear of hostile military or terrorist activity;

Excerpt from decision below:

“The Court agrees with appellant that the Board improperly applied § 3.304(f) when analyzing his specific ambush incident and finds that the Board lacked adequate reasons and bases for its factual determination that appellant’s stressors were inconsistent with the nature of his service.”

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“Nevertheless, a second exception exists under § 3.304(f)(3) when the claimed stressor relates to a “fear of hostile military or terrorist activity,” which the Court agrees is applicable.
The U.S. Court of Appeals for the Federal Circuit, in Sanchez-Navarro v. McDonald,
promulgated a separate three-prong test for the awarding of service connection for PTSD under § 3.304(f)(3). 774 F.3d 1380, 1384 (Fed. Cir. 2014). Under this “more relaxed standard,” appellant’s lay testimony as to the existence of a stressor is adequate, without corroborating evidence, if three conditions are satisfied: (1) medical evidence confirming that a “claimed stressor is adequate to support a diagnosis of [PTSD] and that [appellant’s] symptoms are related to the claimed stressor”; (2) the medical findings are not contradicted by “clear and convincing evidence”; and (3) “the claimed stressor is consistent with the places, types, and circumstances o [appellant’s] service.” Id. (quoting 38 C.F.R. § 3.304(f)(3)).
In its August 2017 decision, the Board discussed appellant’s claimed stressor concerning
an ambush firefight in Korea around September 1955. In doing so, it improperly relied upon a lack of corroborating evidence to deny that the stressor occurred. The Board made multiple references to a lack of evidence of participation in combat. In pertinent part, it stated,
The AOJ [(agency of original jurisdiction)] attempted verification of [appellant’s]
stressor . . . the response received from [AFHRA] indicated that they did not have
unit histories for the 605th Tactical Control Squadron . . . [appellant’s] DD214
certainly provides no indication that [he] participated in combat . . . thus, for the
purposes of service connection for PTSD, an in-service combat stressor is ruled out.
Thus, the only remaining claimed stressor is [appellant’s] fear of hostile military or
terrorist activity during his service in Korea.
R. at 8–9.
Because the appellant is seeking service connection under § 3.304(f)(3), evidence of
participation in combat is not required nor is corroboration of his stressor. See Sanchez-Navarro,
5
774 F.3d at 1384. The Board’s discussion can only be characterized as an improper melding of §§ 3.304(f)(2) and (3).3 The Board did not analyze appellant’s claimed ambush trigger under the appropriate “fear of hostile military or terrorist activity” per § 3.304(f)(3). This is error as a matter of law. Accordingly, remand is appropriate.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3125
EDWARD LAULAINEN, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Edward Laulainen appeals through counsel an August 31, 2017, Board of Veteran’s Appeals (Board) decision denying him entitlement to service connection for post-traumatic stress disorder (PTSD). This appeal is timely, the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a), and the case has been expedited pursuant to U.S. VET. APP. Rule 47. As explained below, the Court will set aside the Board decision on appeal and remand this matter for further proceedings consistent with this decision.

I. RELEVANT FACTS AND PROCEDURAL HISTORY
Appellant served honorably on active duty in the United States Air Force from December 1954 to August 1958, including service in Korea from August 1955 to August 1956. In August 2011, appellant’s physician noted that he suffered from PTSD due to his experiences in Korea and, in September 2011, he applied for entitlement to service connection for PTSD. R. at 54
In February 2013, appellant filed a lay statement in which he described two PTSD stressors.
First, he detailed a specific incident in September 1955 in which a group of rebel soldiers ambushed his supply unit. Record (R.) at 507–09. He described an extended firefight in which about 15 enemy combatants were killed, two of whom were Korean civilians that he personally knew due to their
2
prior cooperation with his unit. Id. Second, he described a more general group of encounters that
occurred throughout 1955–1956. Appellant reports that his unit was involved in several firefights
while delivering supplies to various bases near the demilitarized zone (DMZ), which made him
fearful of enemy attacks. R. at 509. In July 2013, appellant underwent a VA medical examination
related to his PTSD. R. at 717–24. The examiner indicated that appellant likely suffered from
moderate PTSD due to his fear of hostile military or terrorist activity. R. at 717. The accompanying
rationale addressed appellant’s reported firefights in Korea, opining that such stressors would be
adequate to support a diagnosis of PTSD. R. at 722.
In an August 2013 rating decision, VA denied appellant’s claim for PTSD because his
service records did not reflect evidence of combat participation. R. at 832. Appellant filed a Notice
of Disagreement (NOD), prompting VA to attempt verification of his claimed stressors. However,
the Air Force Historical Research Agency (AFHRA) indicated they did not have unit histories for
the 605th Tactical Control Squadron, appellant’s unit. The unit histories of its parent organization,
the 502nd Tactical Control Group, were available, but did not include the highly probative period
of July 1955 through December 1955. Appellant waived further development and his case went to
the Board, which remanded the case for further investigation into the claimed stressor, stating that
verification of the stressor “is critical for substantiation of his claims.” R. at 394. However, upon
remand, appellant sent a November 2016 letter to VA in which he again waived further
development to verify his stressors because he was seeking service connection related to a fear of
hostile military or terrorist activity, which is not based on his involvement in combat.
In August 2017, the Board found that the criteria for entitlement to service connection for
PTSD had not been met. In its analysis, the Board determined that appellant did not have an incombat
stressor and that his claimed stressors were “inconsistent with the places, types, and
circumstances of his service.” R. at 10. The Board also based its denial on a finding that appellant’s
recollection of his service was not credible. This appeal followed.
II. ANALYSIS
Appellant submits that the Board made two errors in its August 31, 2017, decision. First,
he asserts that the Board’s analysis of his September 1955 ambush stressor was improper because
it relied on a lack of stressor corroboration, which is not required under 38 C.F.R. § 3.304(f)(3).
Second, he argues that the Board incorrectly found that his more general stressor, and ongoing fear
3
of hostile military action brought on by his supply missions in Korea, was not consistent with the
circumstances of his service because it improperly relied upon his job titles and service records alone, instead of considering the overall circumstances of service in Korea at the time. The Court agrees with appellant that the Board improperly applied § 3.304(f) when analyzing his specific ambush incident and finds that the Board lacked adequate reasons and bases for its factual determination that appellant’s stressors were inconsistent with the nature of his service.
Whether the Board properly interpreted and applied § 3.304(f) in its analysis is a question of law that the Court reviews de novo. See Cullen v. Shinseki, 24 Vet.App. 74, 78 (2010). And the question of whether the Board correctly found appellant’s claimed stressor inconsistent with the nature of his service is a factual determination subject to the “clearly erroneous” standard of review.1 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990); see also 38 U.S.C. § 7261(a)(4).
As a general matter, service connection for PTSD requires (1) medical evidence
establishing a diagnosis, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) medical evidence confirming a link between current symptoms and the claimed stressor. 38 C.F.R. § 3.304(f) (2017) (emphasis added). However, the regulation has several subparts that alter this standard by removing the need for corroborating evidence of the claimed inservice stressor under certain circumstances. Two specific exceptions are implicated in this case.
The first requires evidence that appellant engaged in combat with the enemy, during a period of war, and that the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). The second requires that the claimed stressor is related to a “fear of hostile military or terrorist activity.”2
38 C.F.R. § 3.304(f)(3).
As to the first exception, § 3.304(f)(2), if evidence shows that appellant’s unit engaged in
combat with the enemy during wartime and his claimed stressor is related to that combat, his or her lay testimony alone may prove the occurrence of the stressor; there need not be “corroboration
1 The parties’ briefs show some disagreement about the applicable standard of review in this case. Appellant
argues that the Court should review the Board’s application of § 3.304(f) de novo, and the Secretary contends that the
Board’s factual finding under § 3.304(f)(3) should be reviewed for clear error. As it turns out, both parties have given
correct answers to different questions—like two ships passing in the night.
2 “‘[F]ear 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 injury, or a threat to the
physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle
imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected
sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved
a psychological or psychophysiological state of fear, helplessness, or horror.” 38 C.F.R. § 3.304(f)(3).
4

of every detail including appellant’s personal participation.” Suozzi v. Brown, 10 Vet.App. 307, 311(1997). Here, the Board found itself “unable to concede that [appellant] engaged in combat with the enemy during his military service in Korea.” Indeed, the Board noted that appellant’s service in Korea, from August 1955 to 1956, was not during a period of war, as the Korean Conflict Era ended January 31, 1955. R. at 7 (citing 38 C.F.R. § 3.2(e)). The Board also noted that appellant’s VA Form DD 2014 “certainly provides no indication that [appellant] participated in combat.” R. at 9. Thus, the exception under § 3.304(f)(2), which requires evidence that appellant’s unit engaged in combat with the enemy, is inapplicable here. Nevertheless, a second exception exists under § 3.304(f)(3) when the claimed stressor relates to a “fear of hostile military or terrorist activity,” which the Court agrees is applicable.
The U.S. Court of Appeals for the Federal Circuit, in Sanchez-Navarro v. McDonald,
promulgated a separate three-prong test for the awarding of service connection for PTSD under § 3.304(f)(3). 774 F.3d 1380, 1384 (Fed. Cir. 2014). Under this “more relaxed standard,” appellant’s lay testimony as to the existence of a stressor is adequate, without corroborating evidence, if three conditions are satisfied: (1) medical evidence confirming that a “claimed stressor is adequate to support a diagnosis of [PTSD] and that [appellant’s] symptoms are related to the claimed stressor”; (2) the medical findings are not contradicted by “clear and convincing evidence”; and (3) “the claimed stressor is consistent with the places, types, and circumstances of [appellant’s] service.” Id. (quoting 38 C.F.R. § 3.304(f)(3)).
In its August 2017 decision, the Board discussed appellant’s claimed stressor concerning an ambush firefight in Korea around September 1955. In doing so, it improperly relied upon a lack of corroborating evidence to deny that the stressor occurred. The Board made multiple references to a lack of evidence of participation in combat. In pertinent part, it stated,
The AOJ [(agency of original jurisdiction)] attempted verification of [appellant’s]
stressor . . . the response received from [AFHRA] indicated that they did not have
unit histories for the 605th Tactical Control Squadron . . . [appellant’s] DD214
certainly provides no indication that [he] participated in combat . . . thus, for the
purposes of service connection for PTSD, an in-service combat stressor is ruled out.
Thus, the only remaining claimed stressor is [appellant’s] fear of hostile military or
terrorist activity during his service in Korea. R. at 8–9.
Because the appellant is seeking service connection under § 3.304(f)(3), evidence of
participation in combat is not required nor is corroboration of his stressor. See Sanchez-Navarro,
5
774 F.3d at 1384. The Board’s discussion can only be characterized as an improper melding of §§ 3.304(f)(2) and (3).3 The Board did not analyze appellant’s claimed ambush trigger under the appropriate “fear of hostile military or terrorist activity” per § 3.304(f)(3). This is error as a matter of law. Accordingly, remand is appropriate.
The Board also committed error by providing an inadequate statement of reasons and bases
for its determination that appellant’s “fear of being engaged by the enemy while he was in transit
to numerous locations in Korea” was not consistent with the “places, types, and circumstances” of
his service. Most important here is the Board’s concession that hostile encounters occurred in
Korea for many years after the Korean conflict ended. R. at 10. Although the Board ultimately held
that “there is no indication that [appellant’s] service placed him near any such incidents,” the
rationale that led to that decision is unclear at best.
When discussing appellant’s general fear of hostile military activity, the Board noted that,
action resulting in 14 or 15 enemy killed with no casualties reasonably would have
resulted in some recognition or commendation, corroborated by [appellant’s] DD
2014. Similarly, if [he] was in regular close proximity to the DMZ, such service
would have presumably been documented. In addition, a March 1956 letter of
commendation . . . noted that [appellant] had performed such duties as a bench
stock clerk, airman in charge of the section, and helper in a quartermaster section.
. . . In no way do the service personnel records support [appellant’s] contention that
he was placed in situations that would reasonably result in a fear of hostile military
or terrorist activity.
R. at 9–10.
The Board’s analysis rests heavily on a lack of corroborating evidence, even using the word
“corroborated” in its discussion. This shows that the Board, once again, improperly melded
§§ 3.304(f)(2) and (3). The plain language of § 3.304(f)(3) states that lay testimony alone shall
suffice as evidence of a stressor without the need for corroborating evidence, so long as the claimed
stressor is consistent with the nature of service. By bootstrapping a corroborating evidence
requirement to the consistency prong of § 3.304(f)(3), the Board added an additional hurdle that
VA explicitly removed to “make it easier for veterans to satisfy the rules for establishing an inservice
stressor.” See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. at
3 The Board noted that appellant’s reason for waiving further development of evidence of an in-combat
stressor was his desire to pursue service connection under the theory of “fear of hostile military or terrorist activity,”
38 C.F.R. § 3.304(f)(3). Thus, it was aware that his stressors should not have been analyzed under § 3.304(f)(2), which
relates only to cases in which the claimant engaged in combat, i.e., service during wartime.
6
39, 843–52. Moreover, when relying on appellant’s job description as negative evidence, the Board
never discussed how his duties as a supply specialist are not consistent with his account of frequent
encounters with rebels while travelling to bases for resupply. Lastly, insofar as the Board relied on
a lack of corroborating evidence of these encounters in his DD 214, it has again confused §
3.304(f)(3) by requiring corroborating evidence of the stressor.
Perhaps the Board had valid reasons for finding that appellant’s claimed stressors are not
consistent with the “places, types, and circumstances of his service,” but its multiple, improper
references to the lack of corroborating documentation leaves its entire decision in a fog of unclarity
and doubt. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (“The Board is required to provide a
written statement of the reasons or bases . . . adequate to enable a claimant to understand the precise
basis for the Board’s decision, as well as to facilitate review in this Court.”). Due to the haziness
of the Board’s reasons and bases, the Court cannot review its factual determination and must
remand the issue for clarification. See Kay v. Principi, 16 Vet.App. 529, 533 (2002) (quoting Tucker
v. West, 11 Vet.App. 369, 374 (1998) (“Where the Board has . . . failed to provide an adequate
statement of reasons or bases for its determination . . . a remand is the appropriate remedy.”)).
Given the disposition described above, the Court will not at this time address the remaining
arguments and issues appellant has raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On
remand, appellant is free to submit additional evidence and argument, including the arguments
raised in his brief to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372–
73 (1999) (per curiam order), and the Board must consider any such evidence or argument
submitted. See Kay, 16 Vet.App. at 534. The Board shall proceed expeditiously, in accordance with
38 U.S.C. §§ 5109B and 7112.
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Court SETS ASIDE
the August 31, 2017, decision and REMANDS this matter to the Board for further proceedings
consistent with this decision.
DATED: January 16, 2018
Copies to:
Mary Anne Royle, Esq.
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VA General Counsel (027)

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