On June 7, 2013, the Court of Appeals for the Federal Circuit (Fed. Cir.) issued an opinion in Hall v. Shinseki. The issued stemmed from Mr. Hall’s Post Traumatic Stress Disorder (PTSD) claim based upon an allegation of an in-service sexual assault [hereinafter “military sexual trauma”].
On appeal, Mr. Hall argued that 38 C.F.R. § 3.304(f)(3) (fear of hostile military or terrorist activity) should apply to claims for PTSD based upon military sexual trauma. Section 3.304(f)(3) provides a general exception to the evidentiary burden necessary for verifying that an in-service stressor occurred for the purposes of a PTSD claim. In short, if the claimed stressor is related to fear of hostile military or terrorist activity then the veteran can meet the evidentiary burden through lay statements alone without corroborating evidence.
The Fed. Cir. disagreed with Mr. Hall’s argument, holding 38 C.F.R. § 3.304(f)(3) only applies to “fear of hostile military or terrorist activities” and “fear of [a] hostile sexual assault . . . by his superior in the military” does not satisfy that provision.
Personally, I still see a disconnect between the corroboration requirement for certain PTSD stressors and the current interpretation of use of lay statements under 38 U.S.C. § 5107(b) and § 1154(a). The principle case affirming the credible-supporting-evidence for issues such as military sexual trauma was Moran v. Principi, 17 Vet. App. 149, 159 (Vet. App. 2003) (remand) (“For the reasons discussed above, the Court thus concludes that § 3.304(f)’s credible-supporting-evidence requirement is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).
This case pre-dated cases such as Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), which provide for a broader application of the use of lay statements. Since Congress spoke directly on the issue of use of lay statements under 38 U.S.C. § 5107(b) and § 1154(a), Moran’s interpretation of 38 C.F.R. § 3.304 as requiring something more than lay statements to establish an in-service stressor for issues such as military sexual trauma, is arguably inconsistent with the statute. See generally Breniser v. Shinseki, 25 Vet. App. 64, 71 (Vet. App. 2011) (“In reviewing “an agency’s construction of the statute which it administers,” a court must first ask “whether Congress has directly spoken to the precise question at issue.”).