Single Judge Application, Engaged in Combat, Moran v. Peake, 525 F.3d

Excerpt from Decision below:

"Here, the Board defined "engaged in combat with the enemy" as "requir[ing]
that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality," a definition that Mr. Pate concedes is "quite similar" to the definition of that term provided by the Federal Circuit in Moran v. Peake. R. at 16; Appellant's Br. at 7; see 525 F.3d 1157, 1159 (Fed. Cir.
2008) (holding that "the term 'engaged in combat with the enemy' in [
section] 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis")."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0687
TERRY L. PATE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Terry L. Pate appeals through counsel an October 31, 2008,
Board of
Veterans' Appeals (Board) decision that found that the regional office did
not commit clear and
unmistakable error in its December 1982 decision. Record ®.) at 3-23. The
Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2008
Board decision. Because
the Board's determination that the December 1982 regional office decision
did not contain clear and
unmistakable error is not arbitrary,capricious, an abuse of discretion, or
otherwise not in accordance
with law, and because it is supported by an adequate statement of reasons
or bases, the Court will
affirm the October 31, 2008, Board decision.
I. FACTS
Mr. Pate served on active duty in the U.S. Army from July 1967 to July
1970, including
service in Viet Nam. Mr. Pate's military personnel file indicates that he
participated in the Tet
Counter Offensive and Phases III through VI of the Vietnam Counter
Offensive.
In July 1981, Mr. Pate submitted a claim for VA benefits for post-
traumatic stress disorder.
In September 1981, Mr. Pate submitted a statement that he was exposed to "
constant rocket and
small arms fire" while on active duty in Viet Nam during the Tet Counter
Offensive. R. at 649. He


also recounted an incident where he was "hit by small arms fire" and a
grenade while driving a
military vehicle and fled the attack and hid in the jungle overnight until
he was picked up the next
day by military police. R. at 649-50. Mr. Pate also stated that he was
placed on a mortar team at
a microwave site, where he was "always being rocketed and under small arms
fire" and "often
encountered small fire fights" when he exited the perimeter to pump water.
R. at 650. In February
1982, a VA medical examiner diagnosed Mr. Pate with "[p]ost[-]traumatic
stress disorder,
characterized by[] adequate stressor, insomnia, nightmares, marital
instability, alcohol abuse, poor
job record, depression[,] and suicidal impulses." R. at 615.
In December 1982, a VA regional office denied Mr. Pate's claim for
benefits for post-
traumatic stress disorder. The regional office noted that
[Mr. Pate] stated that in the Long Dinh area he was subject to constant
rocket fire for
a long period, had later been pinned down over night by enemy fire when
his jeep
had been hit, was frequently assigned to defend a microwave installation
and
exposed there to enemy fire. . . . During his compensation and pension
examination
in February 1982, he stated that after two months of working at a base
camp in
Viet[ Nam] he was assigned to a mortar team and spent the rest of his time
working
in that capacity. He said that his unit was stationed near the Ho Chi Minh
trail[] and
was involved in combat every week or two. He said that his friend was
killed by a
mortar close to him during a fire fight.
R. at 587. Nevertheless, the regional office denied Mr. Pate's claim for
benefits for post-traumatic
stress disorder because "[t]he available evidence shows that more
immediate stressors than those
experienced in Viet[ Nam] 13 years ago precipitated his present
psychiatric disability" and,
therefore, "[h]is post-traumatic stress disorder is not due to service." R.
at 588. In rendering its
decision, the regional office did not make an explicit finding regarding
whether Mr. Pate was
involved in combat in Viet Nam, but instead noted that he served as a
wireman and that there was
"no record of wounds or combat decorations" during his service overseas. R.
at 587. Mr. Pate did
not appeal this decision and it became final.
In March 1999, Mr. Pate sought to reopen his previously denied claim for
benefits for post-
traumatic stress disorder. In October 1999, the regional office reopened
his claim and awarded him
a 50% disability rating for post-traumatic stress disorder, effective
March 26, 1999. In so doing, the
regional office noted:
2


DD214 and service personnel records do not specifically document combat
or other
stressor events adequate to support a diagnosis of [post-traumatic stress
disorder].
However, [Mr. Pate] has furnished statements of events during his tour of
duty in
Viet[ Nam] which have been accepted as valid stressors consistent with the
time,
places, circumstances and hardships of service. [Mr. Pate] served in Viet[
Nam] from
January 11, 1968 to February 10, 1969 with [a military occupation
specialty] of
wireman. A review of his personnel file shows [he] was engaged in the [Tet]
Counteroffensive and other unnamed campaigns.
R. at 544. In June 2000, the regional office assigned Mr. Pate staged
disability ratings for post-
traumatic stress disorder of 70% from March 26, 1999, to October 12, 1999;
100% from October
13, 1999, to December 31, 1999; and 70% from January 1, 2000, to the
present. The regional office
also awarded Mr. Pate a total disability rating based on individual
unemployability effective March
26, 1999.
Mr. Pate appealed this decision, arguing that he was entitled to an
earlier effective date
because the regional office committed clear and unmistakable error in its
December 1982 decision
by not finding that he engaged in combat sufficient to trigger a lower
evidentiary threshold for proof
of service connection. See 38 U.S.C. § 354(b) (1982) (current version at
38 U.S.C. § 1154(b)
(2006)). In July 2005, the Board found no clear and unmistakable error in
the December 1982
regional office decision. Mr. Pate appealed and in February 2008, the
Court vacated the Board's
July 2005 decision because the Board did not provide an adequate statement
of reasons or bases for
its decision.
In October 2008, the Board issued the decision currently on appeal. The
Board, in pertinent
part, provided a definition of "combat" for purposes of 38 U.S.C. § 354(b
), recounted the evidence
before the regional office in December 1982, and once again determined
that the regional office did
not commit clear and unmistakable error in its December 1982 decision
because:
The facts did not show that [Mr. Pate] participated in combat, and there
was no objective
evidence substantiating his claimed in-service stressors. There is also no
indication that the
[regional office] misapplied the law, especially considering the more
restrictive version of
the law in effect then as applicable to claimants seeking service
connection for [post-
traumatic stress disorder].
R. at 21-22. Essentially, the Board characterized Mr. Pate's clear and
unmistakable error argument
as a disagreement with how the regional office weighed the evidence of
combat participation, which
3


cannot be the basis for a claim of clear and unmistakable error. R. at 18 (
citing Damrel v. Brown,
6 Vet.App. 242 (1994)).
On appeal, Mr. Pate argues that the Board's decision that the regional
office did not commit
clear and unmistakable error in its December 1982 decision is arbitrary,
capricious, an abuse of
discretion, or otherwise not in accordance with law because the regional
office misapplied 38 U.S.C.
§ 354(b).1
Appellant's Brief (Br.) at 4-12. Specifically, he contends that his lay
statements alone
were sufficient to trigger the lower evidentiary threshold for proof of
service connection contained
in section 354(b). Id. In his reply brief, Mr. Pate reiterates this
argument and asserts that the Court
should review the Board decision de novo because the question of whether
the Board correctly
applied section 354(b) is a question of law. Appellant's Reply Br. at 1-2.
In response, the Secretary argues that the Board's October 2008 decision
that the regional
office did not commit clear and unmistakable error in its December 1982
decision is not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. Secretary's Br. at 2-6.
Specifically, the Secretary asserts that Mr. Pate's disagreement with the
way the regional office
weighed the evidence before it in December 1982 cannot constitute clear
and unmistakable error.
Id. at 4-5.
II. ANALYSIS
Mr. Pate first contends that the October 2008 Board decision that there
was no clear and
unmistakable error in the December 1982 regional office decision is
arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law because the
regional office misapplied
38 U.S.C. § 354(b). Specifically, Mr. Pate asserts that he previously "
furnished adequate statements
consistent with the types, places and circumstances of his active duty
service . . . which had been
accepted as valid stressors . . . and were sufficient to establish that he
had engaged in combat to
In his brief, Mr. Pate argues that the Board's determination that the
December 1982 regional office decision
did not contain clear and unmistakable error is clearly erroneous.
Appellant's Br. at 4-12. However, the "clearly
erroneous" standard does not apply in this case. Instead, when the Court
reviews a Board determination that there was
no clear and unmistakable error in a prior final regional office decision,
the Court's review is limited to determining
whether the Board's conclusion in that regard is "arbitrary, capricious,
an abuse of discretion, or otherwise not in
accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is
supported by an adequate statement of "reasons or
bases," 38 U.S.C. § 7104(d)(1). See Eddy v. Brown, 9 Vet.App. 52, 57 (
1996). Accordingly, the Court will address Mr.
Pate's arguments under the appropriate standard of review.
1
4


trigger the benefit of the relaxed evidentiary burden under 38 U.S.C. §
354(b)." Appellant's Br. at
12. It is clear from this argument that Mr. Pate fundamentally
misunderstands the purpose and
function of section 354(b).
At the time of the regional office decision, section 354(b) provided:
In the case of any veteran who engaged in combat with the enemy in active
service
with a military, naval, or air organization of the United States during a
period of war,
campaign,orexpedition,theAdministratorshall accept as sufficient
proofofservice-
connection of any disease or injuryNext Hit alleged to have been incurred in or
aggravated
by such service satisfactory lay or other evidence of service incurrence
or
aggravation of such Previous HitinjuryNext Hit or disease, if consistent with the
circumstances,
conditions, or hardships of such service, notwithstanding the fact that
there is no
official record of such incurrence or aggravation in such service, and, to
that end,
shall resolve every reasonable doubt in favor of the veteran.
38 U.S.C. § 354(b) (1982). In Collette v. Brown, the U.S. Court of
Appeals for the Federal Circuit
(Federal Circuit) announced a "three-step, sequential analysis" for
applying this provision:2
(1) "determin[e] whether the veteran has proffered 'satisfactory lay or
other evidence of service
incurrence or aggravation of such Previous HitinjuryNext Hit or disease;'" (2) "determine[]
whether the proffered
evidence is 'consistent with the circumstances, conditions, or hardships
of such service;'" and (3) "if
these two inquiries are met, the Secretary 'shall accept' the veteran's
evidence as 'sufficient proof of
service-connection,' even if no official record of such incurrence exists."
82 F.3d 389, 392-93 (Fed.
Cir. 1996) (quoting 38 U.S.C. § 1154(b) (1994)). The Federal Circuit then
concluded that, "if a
veteran satisfies both of these inquiries mandated by the statute, a
factual presumption arises that
the alleged Previous HitinjuryNext Hit or disease is service-connected." Id. (emphasis added).
As Collette demonstrates, section 1154(b)–and its precursor section 354(
b)–does not lower
the evidentiary burden for demonstrating that a veteran engaged in combat
with the enemy as Mr.
Pate contends; rather, "a veteran's participation in combat is a
prerequisite for the application of [this
section]," which in turn lowers the evidentiary burden of showing an in-
service Previous HitinjuryNext Hit or disease.
Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed. Cir. 2007). As the Federal
Circuit observed in Stone:
The plain language of [38 U.S.C. § 1154] demonstrates that in order for a
veteran to
be able to show service-connection for an Previous HitinjuryNext Hit using only lay evidence,
the veteran
2
In August 1991, 38 U.S.C. § 354(b) was renumbered to 38 U.S.C. § 1154(b)
without any substantive
amendment. See Pub. L. No. 102-83, 105 Stat. 404-06 (1991). In Collete,
the Federal Circuit analyzed section 1154,
which was formerly section 354.
5


must have engaged in combat with the enemy. The statute does not provide
a
relaxed standard of proof for determining whether a veteran engaged in
combat.
Id. (emphasis added) (internal citations omitted). Thus, the adjudicator
must make a threshold
determination that the veteran engaged in combat with the enemy before
applying section 1154(b),
and the veteran is not entitled to any relaxed standard of proof in
demonstrating engagement in
combat with the enemy. Id.; see also Simmons v. Peake, 292 Fed. App. 929,
930 (Fed. Cir. 2008)
(holding "that the relaxed evidentiary standard provided by [section] 1154(
b) does not apply when
attempting to establish entitlement to use that statute (i.e., by showing
a veteran 'engaged in
combat')").
Accordingly, Mr. Pate had the burden of proving that he engaged in combat
with the enemy
and the regional office had the concomitant duty to weigh the evidence
before it. Mr. Pate's
argumentthat he "furnished adequate statements consistent with the types,
places and circumstances
of his active duty service .. . sufficient to establish that he had
engaged in combat" is essentially a
disagreement with the way the regional office weighed his lay statements
regarding his service in
Viet Nam, which cannot constitute clear and unmistakable error.
Appellant's Br. at 12; see Russell
v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). In addition, the
fact that Mr. Pate's lay
statements were "consistent with the types, places and circumstances of
his active duty service" is
immaterial to the threshold question of whether he engaged in combat with
the enemy. Appellant's
Br. at 12. As the Federal Circuit explained in Collette, the adjudicator
need not "determine[]
whether the proffered evidence is 'consistent with the circumstances,
conditions, or hardships of []
service'" until after theadjudicator makesthe prerequisite findingthatthe
veteran engagedincombat
with the enemy and finds that the first step of the three-step, sequential
analysis is satisfied–i.e, after
the adjudicator determines that the veteran proffered "satisfactory lay or
other evidence of service
incurrence or aggravation of such Previous HitinjuryNext Hit or disease." 82 F.3d at 392-93 (
quoting 38 U.S.C.
§ 1154(b) (1994)); see also Stone, 480 F.3d at 1113. Moreover, whether
the evidence is "consistent
with the circumstances, conditions, or hardships of [] service" relates to
the question of whether
there was an in-service Previous HitinjuryNext Hit or disease, not the threshold question of
whether the veteran engaged
in combat with the enemy. 38 U.S.C. § 1154(b); see Collette, 82 F.3d at
393.
Mr. Pate also contends that the Board's determination that there was no
clear and
unmistakable error in the December 1982 regional office decision is not
supported by an adequate
6


statement of reasons or bases. The Board's statement of reasons or bases
is adequate if it enables
a claimant to understand the precise basis for the Board's decision, as
well as to facilitate review in
this Court. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App.
49, 57 (1990); see also
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table)
(holding that, to comply with the reasons or bases requirement, the Board
must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
Here, the Board defined "engaged in combat with the enemy" as "requir[ing]
that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality," a definition that Mr. Pate concedes is "quite similar" to the definition of that term provided by the Federal Circuit in Moran v. Peake. R. at 16; Appellant's Br. at 7; see 525 F.3d 1157, 1159 (Fed. Cir. 2008) (holding that "the term 'engaged in combat with the enemy' in [section] 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis"). The Board
also thoroughly described the development of the law regarding claims for
benefits for post-
traumatic stress disorder, including the law extant in December 1982. See
R. at 11-14. The Board
then reviewed the evidence before the regional office in December 1982 and
concluded:
Based on the foregoing, the matter of whether [Mr. Pate] was a combat
veteran is a question to be answered by examining the facts of record. The fact that a veteran asserts that he served in combat is not sufficient alone. His lay
statements are only accepted as sufficient proof of service incurrence once it is established that he engaged in combat with the enemy; the law and regulations in 1982 did not indicate that his statements were to be accepted as sufficient proof of combat service itself.
In this case, the facts considered in December 1982 did not establish that [
Mr. Pate]
had participated in "combat." Although [Mr. Pate] served in Viet[ Nam],
the
evidence of record in 1982 did not show that he actually engaged in combat
with the
enemy. As previously noted, his [military occupation specialty] was listed
as that
of a wireman, and there was no indication that he had received any medals
and/or
citations indicative of combat. Nor was there any evidence showing that he
had
sustained an injury in combat. Therefore, the Board finds that it was
reasonable to
conclude that [Mr. Pate] did not engage in combat with the enemy based
upon the
facts shown in 1982.
7


R. at 18. Because the Board analyzed the probative value of the evidence,
accounted for the
evidence that it found to be persuasive or unpersuasive, and provided the
reasons for its rejection
of any material evidence favorable to Mr. Pate, the Court concludes that
the Board's October 2008
decision is supported by an adequate statement of reasons or bases. See
Eddy v. Brown, 9 Vet.App.
52 ,57 (1996); Caluza, 7 Vet.App. at 506. Moreover, the Court concludes
that the Board's
determination that the December 1982 regional office decision did not
contain clear and
unmistakable error was not arbitrary, capricious, an abuse of discretion,
or otherwise not in
accordance with law. 38 U.S.C. § 7261(a)(3)(A).

III. CONCLUSION
On consideration of the foregoing, the October 31, 2008, Board decision is
AFFIRMED.

DATED: January 18, 2011
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
8