United States Court of Appeals
for the Federal Circuit
__________________________
MARA N. MENEGASSI,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7091
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1895, Judge Robert N.
Davis.
__________________________
Decided: April 21, 2011
__________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
MENEGASSI v. DVA 2
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, United States Department of
Veterans Affairs, of Washington, DC and MARTIE S.
ADELMAN, Attorney.
__________________________
Before RADER, Chief Judge, DYK and PROST, Circuit
Judges.
Opinion for the court filed by Circuit Judge PROST.
Opinion concurring in part and dissenting in part filed by
Circuit Judge DYK.
PROST, Circuit Judge.
Appellant Mara N. Menegassi appeals from a decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”), affirming the Board of Veterans’
Appeals’ (“Board’s”) denial of her claim for entitlement to
service connection for posttraumatic stress disorder
(“PTSD”). Menegassi v. Shinseki, No. 08-1895, 2010 WL
672785 (Ct. Vet. App. Feb. 26, 2010). Though the Veter-
ans Court erred as a matter of law in determining that
the opinion of a mental health professional cannot be used
to establish the occurrence of a stressor under 38 C.F.R.
§ 3.304(f)(5) (previously codified at 38 C.F.R. § 3.304(f)(4)
and originally codified at 38 C.F.R. § 3.304(f)(3)), the error
was harmless and we affirm.
BACKGROUND
Ms. Menegassi served in the United States Marine
Corps from November 1982 to June 1989. Based on this
service, Ms. Menegassi filed a claim on January 30, 2001
alleging that she suffers from PTSD resulting from an in-
service sexual assault that occurred while she was sta-
tioned in Japan in 1984. She received an adverse decision
3 MENEGASSI v. DVA
regarding denial of service connection from the Depart-
ment of Veterans Affairs (“DVA”) Regional Office in St.
Petersburg, Florida which she appealed to the Board.
The Board reviewed Ms. Menegassi’s appeal and ex-
haustively considered the evidence available from both
the veteran’s in-service medical records and other evi-
dence submitted pursuant to 38 C.F.R. § 3.304(f)(5). It
determined that there was no evidence of a reported
sexual assault or behavioral changes from the in-service
medical records, in-service personnel records, or any other
records contemporaneous to the veteran’s service. Pursu-
ant to the requirements of 38 C.F.R § 3.304(f)(5), the
Board also considered evidence from Ms. Menegassi’s
post-service records. This evidence included records of
contact, a 2001 letter written by her colleague, notes from
a treatment program, and a medical examiner’s opinion.
The medical opinion diagnosed Ms. Menegassi with PTSD
and opined that it was more likely than not that sexual
trauma during service caused her PTSD based on the
accounts of the alleged incident relayed by her to the
medical examiner. In re Menegassi, No. 04-24 178, 2008
WL 4321523 (Bd. Vet. App. Feb. 27, 2008).
Taking all of the evidence into account, the Board de-
termined that the favorable inference provided by the
colleague’s letter and the medical opinion did not out-
weigh the negative inference established by the totality of
the unfavorable evidence of record. Thus, on February 27,
2008, it denied Ms. Menegassi’s claim for service connec-
tion for PTSD because it determined that the “preponder-
ance of evidence of record [was] against a finding of
verification of the occurrence of the alleged in-service
personal assault.” J.A. at 84-85.
MENEGASSI v. DVA 4
Ms. Menegassi appealed the Board’s decision to the
Veterans Court. The Veterans Court affirmed the Board’s
decision denying service connection for PTSD based on
the alleged in-service assault. In its opinion, the Veterans
Court noted that “‘[a]n opinion by a mental health profes-
sional based on a postservice examination of the veteran
cannot be used to establish the occurrence of the
stressor,’” citing Cohen v. Brown, 10 Vet. App. 128, 145
(1997).
DISCUSSION
“Our jurisdiction to review the decisions of the [Veter-
ans Court] is limited by statute.” Summers v. Gober, 225
F.3d 1293, 1295 (Fed. Cir. 2000). While this court is
authorized to “decide all relevant questions of law, includ-
ing interpreting constitutional and statutory provisions,”
we cannot adjudicate “(A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case,” unless a consti-
tutional issue is presented. 38 U.S.C. § 7292(d).
The DVA has promulgated a series of regulations de-
fining the types of evidence that may be used to establish
the occurrence of a stressor related to a service member’s
claim for PTSD. See generally, 38 C.F.R. § 3.304(f).
Based on the circumstances surrounding the veteran’s
claim for service connection of PTSD, the use of evidence
defined by one of the regulations may be appropriate.
See, e.g., Id. § 3.304(f)(1)–(5). At issue in this appeal is
the regulation that applies specifically to claims of PTSD
“based on in-service personal assault.” Id. § 3.304(f)(5).
The regulation states in pertinent part:
(5) If a posttraumatic stress disorder claim is
based on in-service personal assault, evidence
5 MENEGASSI v. DVA
from sources other than the veteran’s service re-
cords may corroborate the veteran’s account of the
stressor incident. Examples of such evidence in-
clude, but are not limited to: records from law en-
forcement authorities, rape crisis centers, mental
health counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted
diseases; and statements from family members,
roommates, fellow service members, or clergy. . . .
Id. (emphasis added).
I
Ms. Menegassi argues that the Veterans Court erred
by stating that a post-service examination by a mental
health professional cannot be used to establish the occur-
rence of a stressor related to a PTSD claim stemming
from an in-service personal assault. Specifically, Ms.
Menegassi contends that the DVA noted in its final rule
notice issued in the Federal Register that a doctor’s
diagnosis of PTSD due to personal assault—if competent
and credible—in the absence of contrary evidence, would
likely constitute competent medical evidence sufficient to
corroborate the occurrence of the stressor. See 67 Fed.
Reg. 10330-31 (Mar. 7, 2002). Thus, Ms. Menegassi
asserts that the Veterans Court opinion conflicts with the
DVA’s interpretation of its own regulation.
The government concedes that the Veterans Court
erred as a matter of law by stating that an examination
report can be used to establish a diagnosis of PTSD, but
cannot be used to establish the occurrence of a stressor.
Congress has given the DVA authority to interpret its
own regulations under its general rulemaking authority.
MENEGASSI v. DVA 6
38 U.S.C. § 501. “An agency’s interpretation of its own
regulation is controlling unless that interpretation is
‘plainly erroneous or inconsistent with the regulation.’”
Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009)
(quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). That
interpretation is given substantial deference, which
requires this court to defer to the agency’s interpretation
“unless an alternative reading is compelled by the regula-
tion’s plain language or by other indications of the
[agency’s] intent at the time of the regulation’s promulga-
tion.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415,
430 (1988)).
We agree with Ms. Menegassi and the government.
We hold that under 38 C.F.R. § 3.304(f)(5), medical opin-
ion evidence may be submitted for use in determining
whether the occurrence of a stressor is corroborated.
Section 3.304(f)(5) allows a veteran claiming PTSD from
an in-service military assault to submit evidence other
than in-service medical records to corroborate the occur-
rence of a stressor. The regulation specifically desig-
nates—and the DVA’s interpretation contemplates—that
medical opinion evidence may be submitted. See 38
C.F.R. § 3.304(f)(5) (“Examples of such evidence include,
but are not limited to: records from . . . mental health
counseling centers, hospitals, or physicians.”); 67 Fed.
Reg. 10,330. 1 Therefore, the Veterans Court erred when
1 We do not, however, accept Ms. Menegassi’s ar-
gument that under 38 C.F.R. § 3.304(f)(5) a medical
opinion cannot be weighed by the Board in context with
the other record evidence. See 67 Fed. Reg. 10,330 (“In
diagnosing PTSD, doctors typically rely on the unverified
stressor information provided by the patient. Therefore, a
doctor’s recitation of a veteran-patient’s statements is no
more probative than the veteran-patient’s statements
7 MENEGASSI v. DVA
it determined that a medical opinion based on a postser-
vice examination of a veteran cannot be used to establish
the occurrence of a stressor.
II
Notwithstanding its admission that the Veterans
Court erred, the government contends that the error was
harmless because the Board considered and rejected the
submitted evidence in a manner that was fully compliant
with the correct legal interpretation of 38 C.F.R.
§ 3.304(f)(5). The government further asserts that Ms.
Menegassi failed to challenge the Board’s credibility
findings on appeal.
Ms. Menegassi disagrees. She argues that this court
cannot conduct a harmless error analysis under its lim-
ited jurisdiction. See 38 U.S.C. § 7292(d). Specifically,
Ms. Menegassi argues that a harmless error analysis is
precluded by material facts that are in dispute regarding
the weight afforded the medical examiner’s opinion based
upon her underlying statements—which were found to
lack credibility. Ms. Menegassi contends that assessing
the Veterans Court’s judgment under the correct legal
standard would require factual analysis beyond this
made to VA. Therefore, VA is not required to accept a
doctor’s diagnosis of PTSD due to a personal assault as
proof that the stressor occurred. . . . Opinions given by
such professionals . . . are weighed along with all the
evidence provided. . . . VA is not required to accept a
doctor’s diagnosis of PTSD due to a personal assault as
proof that the stressor occurred or that the PTSD is
service connected.”). The mere submission of a medical
opinion, pursuant to 38 C.F.R. § 3.304(f)(5), does not
preclude the Board from making a factual determination
regarding the weight to be given that opinion.
MENEGASSI v. DVA 8
court’s jurisdiction. Thus, Ms. Menegassi requests that
this court remand the case to the Veterans Court for a
determination as to how 38 C.F.R. § 3.304(f)(5) should be
applied in light of its prior error.
A harmless error analysis of the Veterans Court’s
judgment cannot be conducted when the analysis would
require “fact-finding and/or application of law to fact.”
D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).
Our jurisdiction precludes such an analysis. See 38
U.S.C. § 7292(d)(2) (“[T]he Court of Appeals may not
review (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.”). We can, however, affirm “a Veterans
Court decision on the basis of harmless error when appli-
cation of the correct legal standard to undisputed facts
establishes that the judgment of the Veterans Court [is]
correct, despite the legal error(s) in its reasoning.” Wood
v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (citing
Szemraj v. Principi, 357 F.3d 1370, 1375–76 (Fed. Cir.
2004)).
Our jurisdictional statute does not foreclose a deter-
mination of harmless error under the circumstances of the
present case. Here, the Veterans Court erred by inter-
preting 38 C.F.R. § 3.304(f)(5) to exclude the use of evi-
dence that is specifically allowed by the regulation in
making the ultimate determination as to corroboration of
a stressor. The agency’s regulation here, however, merely
defines the scope of allowable evidence to be used in
determining whether a stressor is corroborated. The
question of whether the Veterans Court’s error was
harmless, therefore, rests on whether the Board—in its
analysis—considered the record evidence as defined by
the scope of 38 C.F.R. § 3.304(f)(5). This issue is purely
legal, requiring no determination of fact or application of
9 MENEGASSI v. DVA
facts to law. Thus, we have jurisdiction to determine
whether the Veterans Court’s error is harmless. See 38
U.S.C. § 7292(d)(2); see also 28 U.S.C. § 2111. 2
We agree with the government and conclude that the
Veterans Court’s error was harmless. The Board’s opin-
ion exhaustively detailed its corroboration analysis. From
its opinion, it is clear that the Board correctly interpreted
the requirement of 38 C.F.R. § 3.304(f)(5). 3 Namely, the
Board considered all available evidence relevant to Ms.
Menegassi’s attempt to corroborate the occurrence of the
alleged stressor. Hence, the Board properly fulfilled its
duty to determine whether service connection was estab-
lished upon “review of the entire evidence of record . . .
consistent with the facts in each individual case.” 38
C.F.R. § 3.303(a).
2 D’Amico is not to the contrary. In that case, we
declined to conduct a harmless error analysis because the
statute in question required a factual determination as to
whether the evidence presented was new and material.
See D’Amico, 209 F.3d at 1326–27; 38 U.S.C. § 5108.
3 At oral argument, counsel for Ms. Menegassi cited
a portion of the Board’s opinion which allegedly indicates
that it did not apply the correct standard under 38 C.F.R.
§ 3.304(f)(5). Oral Arg. at 3:12–4:00, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2010-7091/all. See J.A. 78–79 (“Expertise in
psychiatry, psychology, social work, or sexual trauma is
not expertise in determining the credibility of an histori-
cal account based simply on the report of an alleged
victim of personal assault. . . . As just explained, that
verification cannot come solely from the after-the-fact
opinions of medical professionals where those opinions
derive only from the veteran’s statements.”). Reading
these sentences in the context of the entirety of the
Board’s analysis, we disagree.
MENEGASSI v. DVA 10
CONCLUSION
Because the Board considered the record evidence un-
der a correct interpretation of the legal standard imposed
by 38 C.F.R. § 3.304(f)(5), the Veterans Court’s error was
harmless and we affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
__________________________
MARA N. MENEGASSI,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7091
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1895, Judge Robert N.
Davis.
__________________________
DYK, Circuit Judge, concurring-in-part and dissenting-in-
part.
I join Part I of the majority opinion because I agree
that the Veterans Court erred by stating that a medical
examination report cannot be used to establish the occur-
rence of an in-service stressor. However, I respectfully
dissent from the majority’s conclusion that this error was
harmless. Contrary to the majority, I think that the
Board of Veterans’ Appeals (“Board”) also applied an
incorrect, heightened standard for when a medical report
could be used to corroborate an in-service stressor.
MENEGASSI v. DVA 2
The mental health professional who examined Ms.
Menegassi concluded that he had “no reason to disbelieve”
her “description of [her] military sexual trauma” and that
“the veteran’s post traumatic stress disorder was at least
as likely as not, caused by the sexual trauma she suffered
during her active military service.” J.A. 54. Mental
health professionals have expertise in formulating conclu-
sions based primarily on a patient’s recollections of his or
her own experiences. In fact, in many ways it is the
essence of the job. This is why the regulation requires
that their reports be considered.
In rejecting the examiner’s report, the Board rea-
soned:
That the examiner or other mental health profes-
sionals believed the veteran is insufficient to find
that his nexus opinion verifies the occurrence of
the inservice stressor in this case. Expertise in
psychiatry, psychology, social work, or sexual
trauma is not expertise in determining the credi-
bility of an historical account based simply on the
report of an alleged victim of personal assault.
Here, because the veteran's claim is not based
on a combat stressor, her own statements cannot
provide the necessary verification that the alleged
inservice stressor occurred. As just explained,
that verification cannot come solely from the after-
the-fact opinions of medical professionals where
those opinions derive only from the veteran's
statements.
In re Menegassi, No. 04-24 178, slip op. at 13 (Bd. Vet.
App. Feb. 27, 2008) (emphasis added).
In my view, this language clearly shows that the
Board adopted a categorical, bright-line rule that an
3 MENEGASSI v. DVA
examination report can never be sufficient corroboration
when the “opinion[ ] derives only from the veteran’s
[after-the-fact] statements.” See id. Although perhaps
not identical to the Veterans Court’s rule, such a categori-
cal rule runs afoul of 38 C.F.R. § 3.304(f)(5) just as the
Veterans Court rule does.
The majority concludes that “[r]eading these sen-
tences in the context of the entirety of the Board’s analy-
sis,” the Board considered the medical report and
therefore applied the correct standard. Maj. Op. at 9 n.3.
Although the Board said the evidence was “insufficient to
find that [the medical] nexus opinion verifies the occur-
rence of the inservice stressor in this case,” its rationale
for that conclusion was a categorical rule. See In re
Menegassi, slip op. at 13 (emphasis added).
If the Board had been required to apply the correct
standard, we cannot know whether the Board or Veterans
Court would have come to a different conclusion on the
merits after considering the medical examiner’s opinion.
Therefore, to find harmless error would require a “factual
determination or an application of a law . . . to the facts.”
D’Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000).
We are forbidden to do so. Id.; see also 38 U.S.C.
§ 7292(d)(2). I respectfully dissent from the majority’s
decision to affirm the Veterans Court on harmless error
grounds.