Veteranclaims’s Blog

August 14, 2021

Panel Application; CUE; Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); section 1154(b)’s combat presumption; In his reply brief, appellant cites Reeves v. Shinseki, stating that in that decision the Federal Circuit held that failure to apply the combat presumption was clear and unmistakable error. Although that is true, appellant fails to provide the context of that holding. The Federal Circuit in Reeves held that the Board must apply section 1154(b)’s combat presumption to a veteran’s claimed disability even if he establishes an in-service incident or injury. In other words, it was error in that case for the Board not to consider whether Mr. Reeves had hearing loss while in service, despite the evidence that he had suffered from acoustic trauma in service;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-5212
LARRY W. MATTOX, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided April 26, 2021)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; Kenneth A. Walsh,
Deputy Chief Counsel; and Brent A Bowker, Senior Appellate Attorney, all of Washington, D.C.,
were on the brief for the appellee.
Before PIETSCH, ALLEN, and JAQUITH, Judges.
ALLEN, Judge: In August 2017, Congress enacted the Veterans Appeals Improvement and
Modernization Act of 2017 (AMA).1 The AMA is a sweeping piece of legislation that extensively
overhauls the administrative appeals process concerning VA benefits decisions. Importantly,
however, Congress did not eliminate the administrative appeals structure existing at the time
Congress passed the AMA, leaving the earlier process in place as the “legacy” system. Rather,
Congress provided that certain administrative appeals would be processed under the legacy system
while others would proceed under the new AMA system. This appeal requires us to consider a
significant, albeit narrow, question: How does one determine whether a given administrative
appeal is subject to the AMA as opposed to the legacy system?
In this appeal, which is timely and over which the Court has jurisdiction,2 appellant
contests an April 5, 2019, Board of Veterans’ Appeals decision that denied entitlement to service
connection for an acquired psychiatric disorder, including PTSD. This matter was submitted to a
panel of the Court specifically to address whether Congress’s AMA-amended notice requirements
1 115 P.L. 55, 131 Stat. 1105 (Aug. 23, 2017).
2 See 38 U.S.C. §§ 7252(a), 7266(a).
2
in 38 U.S.C. § 5104(b) apply to legacy appeals. That statutory provision deals with the content of
notice that must be provided to claimants when the Secretary makes certain decisions. We hold
that, under the plain language of the AMA read as a whole and VA’s implementing regulations,
the amended notice requirements in section 5104(b) do not apply to legacy appeals. And because
appellant’s administrative appeal is a legacy appeal, and he has not opted in to the AMA, the Board
was under no obligation to comply with section 5104(b).
Once we address the question of the application of section 5104(b) to legacy appeals, we
will turn to appellant’s arguments regarding the substance of the Board’s April 2019 decision. We
will explain why the Board’s decision is not clearly erroneous, is supported by an adequate
statement of reasons or bases, and is based on correct legal principles. Thus, we will affirm.
I. FACTS AND PROCEDURAL HISTORY
Appellant served the Nation honorably in the United States Navy from October 1967 to
October 1971.3 In July 2015, he filed a claim for entitlement to service connection for PTSD,
stating the condition began in service and continued afterwards.4 At the same time, appellant
submitted a disability benefits questionnaire (DBQ) from a private doctor that provided diagnoses
of PTSD, depression, and anxiety.5 The doctor noted appellant’s service in the waters of Vietnam
and his reports that he had rescued downed pilots and participated in the Tet Offensive during the
Vietnam War.6 The doctor reported that appellant had experienced traumatic events in service that
led to his symptoms.7
Appellant underwent a VA examination in October 2015. The examiner concluded that
appellant did not have PTSD and that his only mental disorder diagnoses were alcohol and
cannabis use disorders.8 The examiner noted appellant’s reports of in-service stressors, including
recovering airmen from a plane that had been shot down and being aboard a ship offshore during
the Tet Offensive, and the examiner found that the stressors met the criteria to support a PTSD
3 Record (R.) at 372.
4 R. at 251.
5 R. at 244.
6 R. at 246.
7 R. at 247.
8 R. at 141.
3
diagnosis.9 The examiner also noted appellant’s symptoms as well as his daily alcohol and cannabis
use.10 After reviewing appellant’s claims file, the examiner concluded that appellant did not meet
the criteria for a PTSD diagnosis.11 The examiner also noted that the July 2015 private doctor’s
diagnosis was not based on the criteria for diagnosing PTSD provided in the current, fifth edition
of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), but rather on the DSMIV,
which was no longer in use.
In December 2015, the regional office (RO) denied service connection for PTSD. 12
Appellant filed a Notice of Disagreement in January 2016.13 In October 2016, VA issued a
Statement of the Case,14 and appellant perfected his appeal to the Board by filing a Substantive
Appeal in December 2016.15
In the decision on appeal, the Board denied service connection for PTSD because “the
weight of the evidence does not show that [appellant] has PTSD.”16 The Board found no evidence
that appellant had psychiatric symptoms in service. Though the Board acknowledged appellant’s
in-service stressors, including recovering downed pilots, the Board found the most probative
evidence was the October 2015 VA examination report in which the examiner concluded that
appellant did not meet the DSM-5 criteria for a current diagnosis of PTSD.17 Instead, the VA
examiner diagnosed alcohol and cannabis use disorder.18 The Board considered the privately
prepared July 2015 DBQ, but found that the private physician’s opinion was “based solely on the
reported history from [appellant]” and did not address the “lack of psychiatric symptomatology
reported less than three months earlier.”19 Furthermore, the private physician did not address
appellant’s history of substance abuse. Thus, the Board assigned the privately completed DBQ less
9 R. at 145, 148.
10 R. at 147.
11 R. at 151.
12 R. at 122-25.
13 R. at 105-06.
14 R. at 35-53.
15 R. at 33.
16 R. at 10.
17 R. at 12.
18 R. at 13.
19 R. at 11, 13.
4
probative weight than the VA opinion. With respect to the diagnosed alcohol and cannabis use
disorders, the Board explained that, as a matter of law, those conditions could not be directly
service connected and that no evidence of record associated them with any service-connected
condition on a secondary basis.20 This appeal followed.
II. PARTIES’ ARGUMENTS
Appellant’s first argument does not relate to the substance of the Board’s decision. Instead,
he contends that the Board failed to provide him proper notice pursuant to the AMA-amended
version of 38 U.S.C. § 5104(b). That statutory provision requires among other things, notice of
favorable findings in “decisions by the Secretary.” He asserts that though the statute was amended
as part of the AMA, it applies to all decisions rendered after February 19, 2019, when the AMA
went into effect, including “legacy” matters such as his appeal. Appellant further argues that this
statutory provision applies to Board decisions, in addition to the decisions of ROs and other VA
agencies of original jurisdiction.
With respect to the substance of the Board’s decision, appellant argues that the Board failed
to consider whether, based on the circumstances of his service, he had engaged in combat with the
enemy, and whether he was entitled to a lower evidentiary standard under 38 U.S.C. § 1154(b).
He further contends that the Board failed to consider the provisions of 38 C.F.R. § 3.304(f)(3),
which provide special consideration for service connection for PTSD claimed as due to a veteran’s
fear of hostile military or terrorist activity in service.21 Appellant asserts that the VA examiner
failed to consider the circumstances of his service under these provisions and whether his inservice
stressor could support a PTSD diagnosis. Appellant also argues that the Board erred in
rejecting the July 2015 DBQ from his private physician without sufficiently explaining its reasons
for doing so. Finally, appellant asserts that the Board misapplied the benefit of the doubt doctrine
in finding that a preponderance of the evidence weighed against his claim. He argues that the
evidence was in equipoise, with one favorable and one unfavorable medical opinion. Appellant
also contends that in evaluating the Board decision the Court must take due account of whether
20 R. at 13.
21 In his opening brief, appellant argued that 38 C.F.R. §§ 3.304(f) and 4.125 are invalid because they are inconsistent
with 38 U.S.C. § 1110’s definition of a disability. However, appellant withdrew this argument in his reply brief, and
the Court will not address it further.
5
the Secretary properly applied the benefit of the doubt under 38 U.S.C. § 7261(b)(1), and that
doing so will demonstrate Board error.
The Secretary defends the Board decision in full and urges affirmance. He argues that
section 5104(b) does not apply to legacy appeals because, according to the AMA itself as well as
applicable VA regulations, the effective date of the AMA is February 19, 2019, and whether a
matter is a legacy appeal or is to be processed under the AMA is determined by whether the initial
decision leading to the administrative appeal was issued before or after February 19, 2019. Here,
the Secretary asserts, the RO’s December 2015 rating decision is the relevant initial decision,
meaning that this matter involves a legacy appeal. Furthermore, he contends that even if the
amended version of the statute could apply to legacy matters, the section does not apply to the
Board. Instead, he maintains it applies only to ROs and other VA agencies of original jurisdiction.
As to appellant’s arguments concerning the substance of the Board’s decision, the Secretary
highlights that the Board denied appellant’s claim because he does not have a diagnosis of PTSD.
Thus, the Secretary argues, appellant’s assertions focusing on in-service stressors are unrelated to
the Board’s reason for denying his claim. The Secretary also contends that the Board provided an
adequate statement of reasons or bases for its decision and for assigning greater probative weight
to the October 2015 VA examination report than the private doctor’s July 2015 DBQ.
Finally, the Secretary asserts that appellant’s argument about the application of the benefit
of the doubt doctrine ignores the weight the Board assigned to each piece of evidence. Specifically,
although, as appellant asserts, the record contains one positive and one negative opinion, the Board
found the July 2015 DBQ to be of little probative weight. Thus, the Secretary contends appellant’s
argument amounts to little more than disagreeing with the Board’s weighing of the evidence, which
is insufficient to show error. And the Secretary notes that nothing in the statutory command that
this Court ensure compliance with the benefit of the doubt rule changes the analysis.
III. ANALYSIS
We will begin our discussion by considering whether the Board was required to provide
appellant notice consistent with AMA-amended section 5104(b). Because we hold that the AMA
does not apply to legacy appeals, and appellant’s case is clearly a legacy appeal, the Board was not
required to provide appellant with section 5104(b) notice. Next, we will address appellant’s
arguments about the substance of the Board decision. We will first discuss his arguments about his
6
in-service stressor, the combat presumption under 38 U.S.C. 1154(b), and the Board’s rejection of
the July 2015 DBQ. Then, we turn to a discussion of the benefit of the doubt doctrine as well as
our duty to consider the rule of prejudicial error. Because appellant fails to meet his burden of
demonstrating error in the Board decision, we will reject his arguments.
A. The Applicability of AMA-Amended 38 U.S.C. § 5104(b)
Appellant first argues on appeal that the Board erred when it failed to comply with the
notice provisions in 38 U.S.C. § 5104 as amended via the AMA. Section 5104(a) states:
In the case of a decision by the Secretary under section 511 of this title affecting
the provision of benefits to a claimant, the Secretary shall on a timely basis, provide
to the claimant (and to the claimant’s representative) notice of such decision. The
notice shall include an explanation of the procedure for obtaining review of the
decision.[22]
Subsection (b) goes on to list the information that must be included in the notice required under
subsection (a). One of the items included on the statutory list is: an “[i]dentification of findings
favorable to the claimant.”23 Appellant particularly focuses on the absence of this information as
somehow prejudicing him and, therefore, requiring that we remand this matter.24
The question before us is whether 38 U.S.C. § 5104 as amended in the AMA applies to
appellant’s administrative appeal before the Agency. First, a refresher on the fundamentals of
statutory and regulatory interpretation. Statutory interpretation is a pure question of law that the
Court reviews de novo. 25 The basics of statutory interpretation are well-established. “In
determining the meaning of a statutory provision, ‘we look first to its language, giving the words
used their ordinary meaning.'”26 But we do not read statutory words or provisions in isolation.
“[T]he plain meaning of any statutory provision must be determined in light of the statutory scheme
as a whole, the specific context in which the word or provision at issue is used, and the broader
22 38 U.S.C. § 5104(a).
23 38 U.S.C. § 5104(b)(4).
24 We note that appellant’s arguments concerning the prejudice he suffered as a result of the Agency’s failure to provide
the notice required under AMA-amended section 5104(b) are both confusing and underdeveloped. However, given
our holding that this statutory provision does not apply to his administrative appeal, we need not explore this issue
further.
25 See Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018).
26 Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012); see Artis v. District of Columbia, __ U.S. , 138 S. Ct. 594, 603 (2018) (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)). 7 context of the statute as a whole.”27 If the Court concludes that Congress’s intent is clear, we end our inquiry and give effect to that intent.28 Similarly, the Court reviews the purely legal question of the proper interpretation of regulations de novo.29 We look first to “the language of the regulation, the plain meaning of which is derived from its text and its structure.”30 If the plain meaning of the regulation is clear on its face, then such plain meaning controls, and “that is ‘the end of the matter.'”31 As with statutes, when we assess the meaning of a regulation, we should not read its words in isolation, but rather in the context of the regulatory scheme and structure as a whole.32 We begin with what Congress did when it enacted the AMA against the backdrop of the then-existing administrative structure. Section 2 of the AMA (that is Public Law 115-55) sets out the comprehensive amendments to title 38 of the U.S. Code that Congress made to provide a new means of adjudicating administrative appeals. We need not dwell on the content of the myriad changes Congress made to the VA administrative adjudicative process. Suffice it to say, they were extensive.33 Importantly, although Congress created a new adjudicatory system in the AMA, it did not eliminate the then-existing system – the “legacy” system.34 Instead, Congress created a system in which some administrative appeals would be processed under the legacy system and others would be processed under the newly enacted AMA.35 This concurrent system of adjudication is a centerpiece of Congress’s design, as one can see from other sections of the AMA dealing with 27 Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010); see King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (articulating same general principle); Imazio Nursing, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1564 (Fed. Cir. 1995) (same). 28 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). 29 Langdon v. Wilkie, 32 Vet.App. 291, 296 (2020). 30 See Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993); Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017). 31 Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)); see also Kisor v. Wilkie, U.S. , , 139 S. Ct. 2400, 2415 (2019).
32 King v. Shinseki, 26 Vet.App. 484, 488 (2014).
33 See VETERANS BENEFITS MANUAL § 12.1.1, at 881-82 tbl. 12-1 (LexisNexis 2020-21) (summarizing changes to the
administrative process under the AMA).
34 See, e.g., Pub. L. 115-55 § 6; 38 C.F.R. § 3.2400(b) (2020).
35 See VETERANS BENEFITS MANUAL § 12.2, at 886-87 (discussing how to determine whether an appeal is subject to
the legacy system or the AMA).
8
administrative matters. For example, section 3 of the AMA is entitled “Comprehensive Plan for
Processing of Legacy Appeals and Implementing New Appeals System.” 36 Here, Congress
required VA to submit a comprehensive plan for implementing the AMA while continuing to
process appeals under the legacy system.37 And section 4 allowed VA to develop programs to test
adjudication of appeals concurrently under the legacy system and what would become the AMA.38
In complying with section 3, VA produced multiple status reports, both before and after
the Agency implemented the AMA, and in each report the Agency spent considerable time
explaining how it would adjudicate cases under both the legacy and AMA systems, including the
resources needed to operate both concurrently at the RO and Board levels.39 The attention to both
systems in these reports also highlights VA’s understanding that Congress expected that the legacy
and AMA processes would operate concurrently.
So, we know that Congress intended for the legacy system and the AMA system to operate
concurrently. In fact, no one seriously disputes this point. This brings us to how one determines
which administrative appeals fall within each system. Congress addressed this issue in the AMA
under the rubric of what it referred to as “applicability,” setting out certain rules in the statute’s
section 2(x).40 A note to section 5104 provides that section 5104 (as with all of the AMA) is
“applicable to all claims for which notice of a decision . . . is provided by the Secretary on or after
the later of the date that is 540 days after Aug. 23, 2017″ or “30 days after the date required
certifications and performance outcomes are submitted to the appropriate committees of
Congress.”41
The applicability question actually contains two, interrelated parts. The first concerns a
date, that is, the point in time matters for assessing whether a given administrative appeal falls
36 Pub. L. No. 115-55, § 3, 131 Stat. 1105 (Aug. 23, 2017).
37 Id.
38 Pub. L. No. 115-55, § 4.
39 See U.S. DEP’T OF VETERANS AFFAIRS, COMPREHENSIVE PLAN FOR PROCESSING LEGACY APPEALS AND
IMPLEMENTING THE MODERNIZED APPEALS SYSTEM 5 (Nov. 2018 update),
https://www.benefits.va.gov/benefits/appeals-reports.asp (noting that the legacy and new systems will operate
concurrently); see also U.S. DEP’T OF VETERANS AFFAIRS, COMPREHENSIVE PLAN FOR PROCESSING LEGACY APPEALS
AND IMPLEMENTING THE MODERNIZED APPEALS SYSTEM 12 (Aug. 2019) (discussing the Veterans Benefits
Administration’s two distinct workloads).
40 See Pub. L. No. 115-55, § 2(x).
41 38 U.S.C. § 5104; see also Pub. L. No. 115-55, § 2(x).
9
under the AMA or the legacy system. Here, there is no dispute about the relevant date. Pursuant
to the AMA, VA set the effective date of the new appeals system as February 19, 2019, following
the statutorily required certification to congressional committees. 42 We do not understand
appellant to dispute the relevant date for applicability of the AMA, which includes by necessity
the applicability of section 5104(b).
This leads to the second applicability question: What must occur on or after February 19,
2019, such that an administrative appeal will be subject to the AMA? Again, for guidance we turn
to VA’s implementing regulations. In particular, 38 C.F.R. § 3.2400 provides that the AMA applies
to all claims “[f]or which VA issues notice of an initial decision on or after the effective date of
the modernized review system” or “[w]here a claimant has elected review of a legacy claim under
the modernized review system.”43 So, to determine the system under which an appeal is to be
processed, we ask whether the initial decision that led to an administrative appeal was issued on
or after February 19, 2019. If it was issued on or after that date, then the appeals falls within the
AMA. If not, the appeal is a legacy appeal to be processed under the “old” system. Congress
allowed one exception, where under certain circumstances, claimants whose appeals would
normally be processed in the legacy system may opt in to the AMA.44 In fact, VA offers legacy
claimants many opportunities to access the AMA system, with elections allowed after any
Statement of the Case (SOC) or Supplemental SOC (SSOC) is issued.45
Having concluded that the plain meaning of the AMA and VA’s implementing regulations
requires that for the AMA to apply, an initial decision on a claim for which an administrative
appeal is being processed has been issued on or after February 19, 2019, our resolution of
appellant’s argument is simple. As the Board recognized, here the initial decision that led to
appellant’s administrative appeal was a December 2015 rating decision that denied service
connection for PTSD.46 To state the obvious, the December 2015 rating decision was issued well
42 84 Fed. Reg. 2449-01 (Feb. 7, 2019).
43 38 C.F.R. § 3.2400(a). see also 38 C.F.R. § 19.2(b) (2020) (defining the effective date of AMA with respect to
Board decisions).
44 See Pub. L. No. 115-55, §2(x)(3); 38 C.F.R. § 3.2400(c).
45 See U.S. DEP’T OF VETERANS AFFAIRS, COMPREHENSIVE PLAN FOR PROCESSING LEGACY APPEALS AND
IMPLEMENTING THE MODERNIZED APPEALS SYSTEM 6 (2017) (noting that legacy claimants may opt in to the AMA
system each time a new SOC or SSOC is issued, both before and after the effective date of the AMA).
46 R. at 6; see R. at 122-25 (Dec. 2015 rating decision).
10
before the AMA’s February 19, 2019, effective date. Furthermore, appellant does not argue, nor
does the record show, that he elected to have his claim processed under the AMA by opting in to
that system.
In fact, the very process by which appellant appealed his claim to the Board illustrates the
claim was not adjudicated under the AMA. He was issued an SOC and required to file a
Substantive Appeal,47 hallmarks of the pre-AMA appeals process that have been omitted from the
AMA procedure.48 And there is no indication that appellant ever objected to the adjudicative
process VA employed to address his administrative appeal. In sum, we hold that the Board was
not required to comply with the notice requirements of section 5104(b) because appellant’s claim
is a legacy appeal subject to the legacy appeals process, not the AMA.
Appellant resists this straightforward application of the AMA and its implementing
regulations. He contends the AMA applies to his claim because the Board issued the decision on
his underlying appeal after February 19, 2019. For two principal reasons the appellant’s argument
lacks merit. First, his position effectively undermines Congress’s plan to have VA operate
concurrent systems for adjudicating administrative appeals. Congress could arguably have made
the AMA applicable to all appeals pending on the date of its enactment. But, as we have explained,
it did not do so. Yet, if appellant’s position is correct – that is, that any decision rendered after
February 19, 2019, not just the initial one, makes an appeal subject to the AMA – for all practical
purposes there would be no legacy system. Effectively, according to appellant’s position, every
administrative appeal lodged before February 19, 2019, would be part of the AMA because as soon
as VA issued any decision on that appeal after February 19, 2019, that legacy appeal would be
converted to an AMA appeal. In other words, under appellant’s view of the world, the legacy
system was one that would disappear automatically every time VA issued a decision on an
underlying legacy appeal after February 19, 2019. If Congress had meant that to be the case,
something that would be truly remarkable, we think Congress would have been clear that it
intended to create this rather bizarre conversion process.
47 See R. at 33, 35-53.
48 See Monk v. Wilkie, 978 F.3d 1273, 1275 (Fed. Cir. 2020) (explaining that the AMA “eliminated or simplified”
steps after a claimant files a Notice of Disagreement); see also VETERANS BENEFITS MANUAL § 12.1.1, at 881
(LexisNexis 2020-21).
11
Moreover, why would Congress have provided legacy claimants a procedure to
affirmatively opt in to the AMA system after an SOC or SSOC is issued in the legacy system?
There would have been no need to opt in, because any VA decision would have automatically
converted a legacy appeal into an AMA appeal. In addition, if legacy appeals disappear as
appellant suggests, we wonder why Congress would have required such comprehensive planning
from VA for the operation of concurrent systems as well as allowed VA to adopt pilot programs
to test their simultaneous operation?49 In short, appellant’s argument is at odds with nearly
everything Congress did when it created the AMA without abolishing the legacy system for
processing appeals.
The second problem with appellant’s position is that it is entirely at odds with § 3.2400’s
clear definition of which appeals are subject to the AMA. That regulation implements Congress’s
will as reflected in the plain language and structure of the AMA read as a whole. Appellant never
explains why that regulation is not consistent with the AMA as a whole, and we cannot see how it
is not consistent.50 Our job is not to second guess Congress and the Agency. Rather, we are to
interpret the plain language of the statute and relevant implementing regulations and to ensure the
Board had complied with them.51
In sum, appellant’s argument is inconsistent with both the plain language of the AMA and
its implementing regulations as well as the comprehensive, concurrent appeals processes Congress
created. And we reiterate: Because appellant’s appeal is a legacy claim, the Board was not required
to provide notice consistent with section 5104(b) as amended in the AMA. So, appellant fails to
meet his burden of showing prejudice in the Board’s failure to provide him specific notice of its
favorable findings.52
49 Pub. L. No. 115-55, §§ 3,4.
50 As we have explained, we believe the AMA, read as whole, plainly undermines appellant’s argument. But even if
we considered the statute ambiguous about the triggering event for the AMA to apply to an appeal, VA’s implementing
regulation, 38 C.F.R. § 3.2400, adopts a permissible interpretation of such an assumed ambiguity. As an alternative
holding, we would defer to VA’s regulation under Chevron, 467 U.S. at 844-45. See Burkhart v. Wilkie, 30 Vet.App.
414, 425 n.3 (2019) (providing Chevron rationale as alternative to plain meaning interpretation), aff’d, 971 F.3d 1363
(Fed. Cir. 2020).
51 See 38 U.S.C. § 7261(a)(1) (providing that the Court may interpret statutory and regulatory provisions); see also
Boyer v. West, 210 F.3d 1351, 1356 (Fed. Cir. 2000) (noting that courts “can only interpret the statutes that are enacted
by Congress . . . [and] are simply powerless to amend any statutory provision”).
52 Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
12
We stress one final point before we turn to appellant’s allegations of error concerning the
substance of the Board’s decision. We do not reach the parties’ dispute about whether section
5104(b) applies to Board decisions or only initial determinations of an RO or another VA agency
of original jurisdiction. We need not decide that question (or any other question concerning the
substance of the AMA for that matter) today because appellant’s appeal is a legacy claim. As we
noted earlier, the question we addressed concerning the applicability of the AMA is significant for
sure. But it is also narrow.
B. Appellant’s Substantive Assertions of Board Error
Having disposed of appellant’s AMA-related procedural argument, we move on to address
his allegations concerning the substance of the Board’s decision. We first consider his contentions
regarding VA’s treatment of his in-service stressor as well as the combat presumption under
38 U.S.C. § 1154(b). Next, we deal with appellant’s arguments related to the Board’s treatment of
the July 2015 privately prepared DBQ he submitted. Finally, we discuss appellant’s assertions
concerning the benefit of the doubt doctrine. As we will explain, none of appellant’s arguments
convince us the Board erred.

  1. In-Service Stressor and Combat Presumption
    Establishing service connection generally requires evidence of (1) a current disability; (2)
    an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed
    in-service disease or injury and the present disability.53 Establishing service connection for PTSD
    in particular requires (1) evidence of a current diagnosis of PTSD consistent with the DSM-5;54
    (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) competent
    evidence of a causal nexus between the current condition and the in-service stressor.55
    We review the Board’s findings regarding service connection for clear error.56 The Court
    will overturn the Board’s findings only if the record offers no plausible basis for its decision and
    the Court is left with a definite conviction that the Board’s decision was in error.57 As with all its
    findings on a material issues of fact and law, the Board must support its decision with respect to
    53 See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2020).
    54 38 C.F.R. § 4.125(a) (2020).
    55 38 C.F.R. § 3.304(f) (2020).
    56 Dyment v. West, 13 Vet.App. 141, 144 (1999).
    57 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    13
    entitlement to service connection with an adequate statement of reasons or bases that enables a
    claimant to understand the precise bases for the Board’s decision and facilitates review in this
    Court.58
    In its decision, the Board’s analysis of service connection for PTSD begins and ends with
    the first element, namely the lack of a DSM-5 compliant diagnosis of PTSD.59 Thus, even though
    the Board acknowledged appellant’s in-service stressors,60 those stressors were not key to the
    Board’s denial of benefits. This is important because appellant’s arguments focus on what happened
    in service, ignoring the missing diagnosis. Thus, he fails to show how any alleged error is
    prejudicial.
    Appellant first argues that the Board did not consider whether the circumstances of his
    service entitled him to a lower evidentiary standard under 38 U.S.C. § 1154(b), which eases the
    burden on combat veterans to satisfy the in-service element of service connection.61 The Board
    discussed that provision in its decision yet ultimately denied appellant’s claim on a different basis,
    namely, that he had no PTSD diagnosis.62 In his briefs, appellant fails to explain how a further
    discussion of the combat presumption would affect the Board’s unfavorable finding that he does
    not have a DSM-5-consistent diagnosis of PTSD. And to be clear, we cannot see how it would.
    In his reply brief, appellant cites Reeves v. Shinseki,63 stating that in that decision the Federal Circuit held that failure to apply the combat presumption was clear and unmistakable error.
    Although that is true, appellant fails to provide the context of that holding. The Federal Circuit in Reeves held that the Board must apply section 1154(b)’s combat presumption to a veteran’s claimed disability even if he establishes an in-service incident or injury.64 In other words, it was error in that case for the Board not to consider whether Mr. Reeves had hearing loss while in service,
    58 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
    59 The Board did find diagnoses of alcohol and cannabis use disorder but found those diagnoses unrelated to appellant’s
    service. Appellant raises no argument as to this aspect of the Board’s decision, so we deem any appeal of that issue
    abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 284 (2015) (en banc).
    60 See R. at 12.
    61 See Dalton v. Nicholson, 21 Vet.App. 23, 37 (2007).
    62 See R. at 9.
    63 682 F.3d 988 (Fed. Cir. 2012).
    64 Id. at 999.
    14
    despite the evidence that he had suffered from acoustic trauma in service.65
    Nothing like this
    scenario appears before us here. The Board did not need to reach the question whether appellant
    here had PTSD in service because it found that he does not have it currently. And regardless of
    whether he experienced psychiatric symptoms in service, the lack of a DSM-5 diagnosis now
    prevents entitlement to service connection because this Court has held that a valid DSM-5
    diagnosis is required to compensate a psychiatric disability.66 Thus, appellant has not met his
    burden of demonstrating prejudicial error in the Board’s failure to discuss section 1154(b) more
    thoroughly (even assuming the Board’s discussion was somehow inadequate).67
    Appellant’s next argument follows a similar trajectory. He contends that the Board did not
    properly apply 38 C.F.R. § 3.304(f)(3), a regulatory provision providing a relaxed evidentiary
    standard for those veterans who claim an in-service stressor involving a fear of hostile military or
    terrorist activity. Again, this relaxed evidentiary standard is premised on a DSM-5 diagnosis of
    PTSD,68 which appellant does not have. With respect to his claimed in-service stressor, the
    October 2015 VA examiner considered appellant’s report of retrieving downed pilots off the coast
    of Vietnam,69 finding that the stressor related to his fear of hostile military or terrorist activity and
    sufficient to support a PTSD diagnosis.70 Despite this stressor, however, the examiner did not
    diagnose PTSD under the DSM-5. The Board considered the examiner’s findings and relied on
    them to deny service connection. Once again, appellant does not meet his burden of demonstrating
    prejudicial error in the Board’s analysis.71
    Appellant cites two Federal Circuit decisions to argue the existence of a different test for
    establishing service connection for PTSD claimed as resulting from a fear of hostile military or
    terrorist activity.72 However, in both decisions, the court acknowledges that the regulation requires
    65 Id.
    66 Martinez-Bodon v. Wilkie, 32 Vet.App. 393, 404 (2020).
    67 Hilkert, 12 Vet.App. at 151.
    68 See 38 C.F.R. § 3.304(f).
    69 R. at 144.
    70 R. at 148.
    71 See Hilkert, 12 Vet.App. at 151.
    72 See Appellant’s Brief (Br.) at 10-11 (citing Sanchez-Navarro v. McDonald, 774 F.3d 1380 (Fed. Cir. 2014); Nat’l
    Org. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012)). These cases were decided
    when VA regulations referred to the DSM-IV; those regulations have since been updated to reflect the manual’s current
    edition, DSM-5. See 38 C.F.R. § 4.125(a).
    15
    a DSM diagnosis of PTSD to establish service connection even under the lower evidentiary
    standard of § 3.304(f)(3). We just do not see how the cited decisions illustrate error in the Board’s
    decision, and appellant does not fill in the blanks. Thus, we reject this underdeveloped argument.73
  2. Treatment of the July 2015 Private DBQ
    With respect to appellant’s argument that the Board erroneously rejected the July 2015
    private DBQ, he alleges that the Board “failed to explain the inaccurate factual premise” the private
    physician relied upon, “failed to explain why his opinion was not adequate,” and “failed to explain
    how [the] opinion lacked supporting data which was not connected to his conclusions.”74 In its
    decision, the Board specifically noted that it assigned little probative weight to the July 2015
    private physician’s opinion because, based on the Board’s assessment of the opinion, it “does not
    appear that the examiner reviewed [appellant’s] service treatment or personnel records” and the
    opinion was “based solely on the reported history from [appellant].”75 The Board also noted that
    the examiner did not account for a “lack of psychiatric symptomatology reported less than three
    months earlier” or “the normal psychiatric examination at service discharge in 1971.”76 The Board
    further found that the examiner did not discuss appellant’s history of substance abuse. Thus, the
    Board concluded that because “the examiner appears to have based the opinion on [appellant’s]
    inaccurate report of a 45 [year] history of psychiatric disability,” the Board found the opinion of
    little probative value.77
    The Board clearly explained why it found the July 2015 DBQ entitled to little probative
    weight. The Board noted that because the DBQ was based on appellant’s reports, did not account
    for normal psychiatric findings in the record, and did not discuss his history of substance abuse,
    the examiner’s opinion was based on an inaccurate factual premise and lacked appropriate support
    for its conclusions. We see no clear error with the Board’s findings as to the weight to be assigned
    to the July 2015 DBQ and its rejection of the PTSD diagnosis it contained, and appellant does not
    meet his burden of showing error in this regard.78 In short, the Board performed its function as
    73 See Locklear v. Nicholson, 20 Vet.App. 410, 416-17 (2006).
    74 Appellant’s Br. at 13.
    75 R. at 11.
    76 Id.
    77 Id.
    78 Hilkert, 12 Vet.App. at 151.
    16
    factfinder to assess the evidence before it. We reject appellant’s suggestion that we substitute our
    opinion for that of the Board.
  3. Benefit of the Doubt Doctrine
    As with appellant’s other substantive arguments discussed above, his assertions regarding
    the benefit of the doubt doctrine under 38 U.S.C. § 5107(b) are unavailing. “When there is an
    approximate balance of positive and negative evidence regarding any issue material to the
    determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”79
    However, when the Board determines that the preponderance of the evidence weighs against an
    appellant’s claim, “it necessarily has determined that the evidence is not ‘nearly equal’ or ‘too close
    to call,’ and the benefit of the doubt rule therefore has no application.”80
    Appellant argues that because the evidence of record consisted of one medical opinion that
    found a diagnosis of PTSD and one that found no such diagnosis, the evidence was in equipoise
    and he was entitled to the benefit of the doubt. Appellant’s argument, however, overlooks that the
    Board assigned less probative weight to the PTSD diagnosis contained in the July 2015 DBQ. The
    Board found that the diagnosis was not based on appellant’s full disability picture but instead on
    the examiner’s reliance on appellant’s reported history, which did not include his history of
    substance abuse or psychiatric findings revealing no abnormality. Thus, the evidence was not in
    approximate balance. The Board assigned more weight to one piece of evidence – the October
    2015 VA examination report – than to the other piece of evidence – the July 2015 DBQ – consistent
    with its role as factfinder.81 In other words, one does not assess the question under the benefit of
    the doubt doctrine merely by counting pieces of evidence. The doctrine considers the quality of
    the evidence, not merely the quantity. Because the Board found that the preponderance of the
    evidence weighed against appellant’s claim, it was not required to apply the benefit of the doubt
    doctrine.
    Appellant has not demonstrated error in the Board’s determination in this regard. As
    discussed above, the Board’s finding that the July 2015 DBQ was entitled to little probative weight
    79 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2020).
    80 Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).
    81 See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding
    that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the
    Board’s decision only if it is clearly erroneous).
    17
    was not clearly erroneous. To the extent that appellant disagrees with the weight assigned to the
    evidence of record, such an argument does not warrant remand because it is the Board’s prerogative
    as factfinder to assess the evidence and determine the weight to assign to that evidence.82 Thus,
    the Court finds no error with the Board’s finding that the evidence of record was not in approximate
    balance and that a preponderance of the evidence supported denial.
    Appellant also argues that the Court has a statutory duty to “take due account of the
    Secretary’s application of section 5107(b)” in reviewing the Board’s decision.83 He asserts that this
    language was added to the statute in 2002 and that the Court has not addressed what this language
    means. We certainly have the obligation to ensure the Board’s compliance with the benefit of the
    doubt rule. And it may be that, in an appropriate case, we would need to address whether the
    addition of section 5107(b) in 2002 provides some special privilege to our consideration of the
    Board’s application of the benefit of the doubt doctrine. We decline to address that issue here. No
    matter how interesting this question may be, we need not reach it in this appeal. Here, we are
    constrained by the Board’s determinations as to the weight assigned to the evidence of record,
    determinations that are not clearly erroneous and that are adequately supported. Stated another
    way, no matter how “aggressive” the Court’s role is in reviewing the Board’s application of the
    benefit of the doubt doctrine might be, it would not change the fact that the Board’s finding that
    the preponderance of evidence in this case weighed against the claim was not clearly wrong.
    C. Summary
    In sum, appellant’s administrative appeal concerning PTSD is one subject to adjudication
    under the legacy system. The appeal is not subject to the AMA, including the notice requirements
    of section 5104. Therefore, there was no need for the Board to comply with those provisions with
    respect to its adjudication of appellant’s administrative appeal. Additionally, appellant’s arguments
    concerning the merits of the Board’s decision on appeal are unpersuasive. He has failed to show
    prejudicial error with respect to the Board’s findings that he does not have a DSM-5 diagnosis of
    PTSD and that the VA examination of record was entitled to more probative weight than a DBQ
    from appellant’s private doctor. Appellant also failed to relate his arguments about his in-service
    82 See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Owens v. Brown, 7 Vet.App. 429, 433 (1995).
    83 38 U.S.C. § 7261(b)(1).
    18
    stressors and the combat presumption to the reason the Board denied his claim, namely a lack of a
    current diagnosis of PTSD. Thus, we will affirm the Board’s decision.
    IV. CONCLUSION
    After consideration of the parties’ briefs, the record on appeal, and the governing law, the
    Court AFFIRMS the April 5, 2019, Board decision.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.