Ervin: When Does a VA Amendment Apply to a Case Before the Court?

Ervin: When Does a VA Amendment Apply to a Case Before the Court?

Larry D. Ervin v. Eric K. Shinseki, Opinion Number 08-3287, decided March 9, 2011 involves the application of the amended PTSD regulations.

The case was initialed decided by the Court on July 19, 2010 and the Court affirmed the VA’s denial of a PTSD claim. However, just days prior to the decision, on July 13, 2010, the VA amended 38 C.F.R. 3.304(f). The amendment liberalized the proof necessary for PTSD claims involving noncombat veteran’s lay testimony that a stressor occurred. Specifically, this veteran was a noncombat veteran who was on a tower during basic training when the tower fell and he was nearly drowned. As a result, he claims he developed PTSD.

The amended regulation states that

If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA [physician] confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.

See 38 C.F.R. 3.304(f).

The Court had affirmed the denial but the Court reversed and remanded in light of the amendment. The VA argued the amendment did not apply to this case but the court rejected this argument and said the claim was not finally decided when the regulation was promulgated.

The case as precedent for PTSD claims will have a only a very narrow application. However, it may prove helpful in future cases where the VA promulgates a regulation when a case is before the Court.

Decided by Judges Moorman, Davis and Schoelen.