Kays v. McDonald
2017 U.S. App. LEXIS 1293
| Fed. Cir. | 2017Background
- Charles L. Kays, Navy veteran (1972–1976), filed for PTSD benefits alleging two non-combat in-service stressors: a stabbing after leaving an enlisted men’s club and becoming lost/stressed while diving during a civilian helicopter recovery.
- He submitted personal statements, his former spouse’s statement, testimony, and a newspaper article about a civilian helicopter crash (the article did not mention diving students or veteran participation).
- The VA Regional Office and then the Board denied service connection for PTSD for lack of "credible supporting evidence" that the claimed stressors occurred; the Board questioned credibility, inconsistencies, and lack of corroboration.
- The Veterans Court affirmed the Board, applying the clearly erroneous standard to the Board’s factual findings about the stressors; the court previously remanded after a regulatory amendment was held retroactive.
- Kays appealed to the Federal Circuit arguing the Veterans Court should review de novo whether the veteran met the evidentiary burden of showing credible supporting evidence that the in-service stressor occurred, and alternatively argued the regulation only required evidence that the event (e.g., helicopter crash) occurred, not that it involved him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of review for whether a veteran submitted "credible supporting evidence" that an in-service stressor occurred | Kays: this is an evidentiary/legal burden and should be reviewed de novo by the Veterans Court | Gov't: this is a factual determination by the Board and reviewed for clear error by the Veterans Court | The requirement is factual; Board’s factual findings are reviewed under the clearly erroneous standard |
| Meaning of "credible supporting evidence that the claimed in-service stressor occurred" | Kays: requires only evidence that the stressor/event occurred (e.g., a helicopter crash), not proof it happened to the veteran | Gov't: requires credible evidence that the claimed stressor occurred to the veteran as he described | The regulation requires credible evidence that the claimed stressor occurred to the veteran as claimed |
| Role of a medical diagnosis in establishing the in-service stressor | Kays: a current PTSD diagnosis ensures nexus to the stressor | Gov't: a physician’s diagnosis does not substitute for evidence that the veteran experienced the claimed stressor | Court: medical diagnosis does not obviate need for separate credible evidence tying the veteran to the claimed in-service stressor |
| Whether Board misapplied law or made improper legal rule | Kays: Veterans Court should correct any legal/evidentiary error de novo | Gov't: Board applied existing law to the facts without announcing new legal standards | Court: Board applied established law to the facts; no new legal rule or statutory interpretation invoked, so factual review applies |
Key Cases Cited
- Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014) (de novo review applies to statutory/regulatory interpretation)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (when regulation requires veteran to demonstrate an event, he must show it was at least as likely as not that the event occurred; Board evaluates weight)
- Lennox v. Principi, 353 F.3d 941 (Fed. Cir. 2003) (Veterans Court reviews factual determinations under clearly erroneous standard unless Board explicitly interprets law or establishes new legal rule)
- Sizemore v. Principi, 18 Vet. App. 264 (2004) (corroborative evidence sufficiency and stressor-occurrence is a factual determination reviewed for clear error)
- Ervin v. Shinseki, 24 Vet. App. 318 (2011) (Veterans Court decision holding amendment to 38 C.F.R. § 3.304(f) retroactive)