Larry D. Ervin v. Eric K. Shinseki
24 Vet. App. 318
| Vet. App. | 2011Background
- Ervin's PTSD claim was pending before VA and the Court when the 2010 amendment to 38 C.F.R. § 3.304(f) was published.
- The Board denied service connection for PTSD in 2008, finding insufficient corroboration of stressors and unreliable/uncorroborated veteran testimony.
- The 2010 amendment liberalizes lay testimony for noncombat veterans if a VA psychiatrist/psychologist confirms the stressor supports a PTSD diagnosis and symptoms relate to it.
- The Secretary argued the amendment should apply retroactively only to cases pending before VA, not to cases pending before the Court.
- The Court analyzed whether to apply the amendment to Ervin's case, considering Landgraf, Kuzma, and related retroactivity principles, and concluded the amendment applies retroactively to cases pending on July 13, 2010, including those before the Court.
- The Court withdrew its July 19, 2010 decision, remanded for readjudication under the amended § 3.304(f), and noted a current PTSD diagnosis with lack of stressor corroboration warrants remand for development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 amendment to § 3.304(f) applies to cases pending before the Court on July 13, 2010 | Ervin argues retroactive application favors him. | Secretary argues amendment does not apply to Court-pending cases. | Amendment applies retroactively to Court-pending cases; remand under amended regulation. |
| Is the Secretary's retroactive intent explicit enough to bind the Court | Intention to apply retroactively is clear from final rule. | Retroactivity limited by regulatory language and Court power. | Secretary's retroactive intent is clear; Court applies the amended rule. |
| Should the Court apply the law in effect at the time of its decision rather than the pre-existing rule | Bradley/Thorpe/Landgraf support applying the favorable law to pending cases. | Apply retroactively only where authorized; not subjected to Karnas retroactivity. | Apply the amended regulation to Ervin's claim; no need to resolve Karnas. |
| Does finality or pending status alter the applicability of the amended regulation | Claims pending before VA or on appeal to Court should be covered by the amendment. | Finality constraints could exclude Court-pending cases. | Pending status includes cases before the Court on the effective date; remand under amended regulation. |
Key Cases Cited
- Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruled Karnas to the extent of conflict with binding authority)
- Landgraf v. USI Film Prods., 511 U.S. 244 (Supreme Court, 1994) (not retroactive unless language requires it; apply law in effect at decision when retroactivity favors)
- Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 (Supreme Court, 1969) (retroactivity principles for administrative action)
- Bradley v. School Bd. of City of Richmond, 416 U.S. 696 (Supreme Court, 1974) (fair notice and reasonable reliance in retroactivity analysis)
- Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc; interpretation of finality and regulatory retroactivity considerations)
- Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (retroactivity of VCAA section 3(a) discussed; differentiation from retroactive application here)