Service Women's Action Network v. Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________

SERVICE WOMEN’S ACTION NETWORK,
VIETNAM VETERANS OF AMERICA,
Petitioners

v.

SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________

2014-7115
______________________

Petition for review pursuant to 38 U.S.C. Section 502.
______________________

Decided: March 3, 2016
______________________

DANIELA NOGUEIRA, RACHEL TUCHMAN, Jerome N.
Frank Legal Services Organization, New Haven, CT,
argued for petitioners. Also represented by MICHAEL JOEL
WISHNIE; MARGARET MOOG MIDDLETON, Connecticut
Veterans Legal Center, West Haven, CT.

ALLISON KIDD-MILLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR; DAVID
J. BARRANS, MARTIE ADELMAN, Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
2 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

JOHN MILLIAN, Gibson, Dunn & Crutcher LLP, Wash-
ington, DC, for amici curiae Public Health and Mental
Health Specialists, Madelon Baranoski, Traci Cipriano,
Shelley Geballe, Gregg Gonsalves, Catherine Lewis, Alice
Miller, Howard Zonana.

SANDRA SHIN-YOUNG PARK, American Civil Liberties
Union Foundation, Inc., New York, NY, for amici curiae
American Civil Liberties Union, Futures Without Vio-
lence, National Alliance to End Sexual Violence, National
Center on Domestic and Sexual Violence, Protect Our
Defenders. Also represented by LENORA M. LAPIDUS.

PAUL WHITFIELD HUGHES, Mayer Brown LLP, Wash-
ington, DC, for amicus curiae Members of Congress. Also
represented by CHARLES ALAN ROTHFELD.

MARIANNE HOGAN, Morgan, Lewis & Bockius LLP,
Washington, DC, for amicus curiae National Veterans
Legal Services Program. Also represented by BARTON F.
STICHMAN, National Veterans Legal Services Program,
Washington, DC.
______________________

Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES.
Dissenting opinion filed by Circuit Judge WALLACH.
HUGHES, Circuit Judge.
There has been a growing recognition of the pervasive
and continuing problem of sexual abuse in the military
and the often severe effects it can have. 1 Numerous steps

See, e.g., J.A. 217–64, Military Sexual Trauma,
1

GAO-14-477 (June 9, 2014).
SERVICE WOMEN'S ACTION NETWORK v. 3
SECRETARY OF VETERANS AFFAIRS

have been taken to confront the problem, including an
increased focus by the Department of Defense, and in-
creased efforts by the Department of Veterans Affairs to
improve its adjudication of disability claims related to
military sexual trauma. 2
In response to what they viewed as the VA’s inade-
quate response to MST-based disability claims, petition-
ers here (the Service Women’s Action Network and the
Vietnam Veterans of America) submitted a petition for
rulemaking which requested that the VA promulgate a
new regulation regarding the adjudication of certain
MST-based disability claims. The Secretary of Veterans
Affairs denied the rulemaking petition and this appeal
followed. Our review in these circumstances is limited.
Because the Secretary’s decision to deny the rulemaking
petition was not arbitrary or capricious, or in violation of
the equal protection component of the due process clause
of the Fifth Amendment, we deny the petition for review.
I
In 2012, one in five female veterans and one in one-
hundred male veterans reported that they experienced

2 See Department of Defense Annual Report on
Sexual Assault in the Military, at 11–12 (2014) (“From FY
2012 to FY 2014, the Secretary of Defense directed 41
initiatives that fundamentally reformed how the military
prevents, responds to, and adjudicates sexual assault.”);
Victims Protection Act of 2014, S. 1917, 113th Cong.
(2014); Military Justice Improvement Act of 2013, S.
1752, 113th Cong. (2013); J.A. 217–64, Military Sexual
Trauma, GAO-14-477 (“The Veterans Benefits Admin-
istration (VBA), within the Department of Veterans
Affairs (VA), has taken several steps to improve decision-
making on disability claims involving military sexual
trauma (MST) and to rectify past errors.”).
4 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

sexual abuse in the military, and an estimated 26,000
servicemembers “experienced some form of unwanted
sexual contact.” J.A. 220. The trauma stemming from
sexual abuse in the military is referred to as military
sexual trauma (MST) and it can result in severe chronic
medical conditions, including Post-Traumatic Stress
Disorder (PTSD), depression, and anxiety. 3
Generally, veterans with service-connected disabili-
ties (i.e., injuries or diseases contracted or aggravated in
military service) are entitled to disability benefits. See
38 U.S.C. §§ 1110, 1131. Veterans are eligible to receive
disability benefits for the physical and mental health
disabilities caused or aggravated by MST, such as PTSD,
depression, or anxiety.
From 2008–2013, veterans filed over 29,000 claims re-
lated to disabilities caused by MST. J.A. 220. And from
2010–2013, the overwhelming majority of those MST-
based claims (94%) were for PTSD. Id. In at least 2010
and 2011, there was a significant disparity in the rates at
which PTSD claims were granted, depending on whether
the claim was based on MST or some other stressor. For
instance, in 2010, 56% of non-MST-based PTSD claims
were granted, while only 32.3% of MST-based PTSD
claims were granted. J.A. 173. And, in 2011, 74% of non-
MST-based PTSD claims were granted, while only 44.6%
of MST-based PTSD claims were granted. Id.

3 The VA defines MST as “psychological trauma,
which in the judgment of a mental health professional
employed by the Department, resulted from a physical
assault of a sexual nature, battery of a sexual nature, or
sexual harassment which occurred while the veteran was
serving on active duty, active duty for training, or inactive
duty training.” 38 U.S.C. § 1720D(a)(1).
SERVICE WOMEN'S ACTION NETWORK v. 5
SECRETARY OF VETERANS AFFAIRS

To address this significant disparity, the Service
Women’s Action Network and the Vietnam Veterans of
America (collectively, petitioners) petitioned the Secretary
for a rulemaking. Petitioners claim that this disparity, at
least in part, is due to the higher evidentiary burden
required to establish service-connection for MST-based
PTSD.
To establish service connection for PTSD, there must
be a medical diagnosis of PTSD, a link between the PTSD
diagnosis and the in-service stressor, and “credible sup-
porting evidence that the claimed in-service stressor
occurred.” 38 C.F.R. § 3.304(f). The Secretary has the
“authority to prescribe all rules and regulations which are
necessary or appropriate . . . with respect to the nature
and extent of proof and evidence . . . in order to establish
the right to benefits.” 38 U.S.C. § 501(a). Under this
authority, the Secretary allows a veteran’s lay testimony
alone to constitute the credible supporting evidence
required for stressors related to combat in which the
veteran engaged, a veteran’s fear of hostile military or
terrorist activity, or a veteran’s experience being a prison-
er of war. 38 C.F.R. § 3.304(f)(2)–(4). Specifically, if the
evidence establishes that the veteran experienced a
specific event that caused the claimed stressor (e.g., that
the veteran engaged in combat with the enemy), and the
claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran’s service, the VA
allows the veteran to establish the occurrence of the
claimed stressor through the veteran’s “lay testimony
alone” when there is no clear and convincing evidence to
the contrary. Id. In contrast, when the stressor is related
to an in-service personal assault, which includes MST, the
veteran is required to provide corroborating evidence to
substantiate the occurrence of the stressor.
38 C.F.R. § 3.304(f)(5). However, evidence from sources
other than the veteran’s service records may constitute
credible evidence supporting the occurrence of the stress-
6 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

or, including, but 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. Moreover, “VA will not
deny a post-traumatic stress disorder claim that is based
on in-service personal assault without first advising the
claimant that evidence from sources other than the veter-
an’s service records or evidence of behavior changes may
constitute credible supporting evidence of the stressor and
allowing him or her the opportunity to furnish this type of
evidence or advise VA of potential sources of such evi-
dence.” Id.
The petition requests that the VA promulgate a new
subsection of 38 CFR § 3.304—§ 3.304(g)—to establish a
separate evidentiary presumption for PTSD caused by
MST. Petitioners’ proposed rule reads:
If a stressor claimed by a veteran is related to the
veteran’s reported experience of military sexual
trauma and a psychiatrist or psychologist con-
firms that the claimed stressor is adequate to
support a diagnosis of a mental health condition
and that the veteran’s symptoms are related to
the claimed stressor, in the absence of clear and
convincing evidence to the contrary, the veteran’s
lay testimony alone may establish the occurrence
of the claimed in-service stressor.
J.A. 302.
The petition contends that this rule is necessary be-
cause: (1) systemic underreporting deprives survivors of
rape, sexual assault, and sexual harassment of the docu-
mentation necessary to corroborate their claims; (2) VA
adjudicators often misapply the current evidentiary
standard; and (3) VA’s current rules for PTSD related to
MST allow for biased exercises of adjudicators’ discretion.
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SECRETARY OF VETERANS AFFAIRS

The petition further argues that veterans suffering
from PTSD caused by other stressors “do not have to
present any threshold evidence of the specific stressor,”
but must simply show that they “served in general condi-
tions in which stressors causing PTSD occur.” J.A. 345.
Therefore, the proposed evidentiary standard only re-
quires veterans “to prove they served in general condi-
tions in which military sexual assault and sexual
harassment are known to occur.” Id. at 345. However,
since sexual harassment and sexual assault are “known to
occur in all conditions of service,” veterans claiming
benefits for MST-based PTSD would only need to prove
that they served in the military. Id.
The Secretary denied the petition. Petitioners appeal
on the grounds that the denial is arbitrary and capricious
and violates the equal protection clause of the Fifth
Amendment. We have jurisdiction under 38 U.S.C § 502.
Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345,
1352 (Fed. Cir. 2011).
II
As we have previously held, we review the Secretary’s
denial of a petition for rulemaking pursuant to 5 U.S.C.
§ 706(2)(A) to determine whether the agency’s decision
was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. at 1353 (citing
Massachusetts v. EPA, 549 U.S. 497, 527–28 (2007)).
When a proposed rulemaking “pertains to a matter of
policy within the agency’s expertise and discretion, the
scope of review should perforce be a narrow one, limited to
ensuring that the agency has adequately explained the
facts and policy concerns it relied on and to satisfy our-
selves that those facts have some basis in the record.” Id.
at 1353–54 (quoting WWHT, Inc. v. FCC, 656 F.2d 807,
817 (D.C. Cir. 1981)) (internal quotation marks omitted).
“In other words, a court ‘looks to see whether the agency
employed reasoned decisionmaking in rejecting the peti-
8 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

tion.’” Id. at 1354 (quoting Defs. of Wildlife v. Gutierrez,
532 F.3d 913, 919 (D.C. Cir. 2008) (alteration in original
omitted)).
To determine if the agency employed reasoned deci-
sionmaking, “we must examine the petition for rulemak-
ing, comments pro and con . . . and the agency’s
explanation of its decision to reject the petition.”
Gutierrez, 532 F.3d at 920 (quoting Am. Horse Prot. Ass’n
v. Lyng, 812 F.2d 1, 5 (D.C. Cir. 1987)) (internal quotation
marks omitted). In only the “rarest and most compelling
of circumstances” is it appropriate to overturn an agency
judgment not to institute a rulemaking. WWHT, Inc., 656
F.2d at 818; see also Nat’l Customs Brokers & Forwarders
Ass’n of Am. Inc. v. United States, 883 F.2d 93, 96–97
(D.C. Cir. 1989) (“We will overturn an agency’s decision
not to initiate a rulemaking only for compelling cause,
such as plain error of law or a fundamental change in the
factual premises previously considered by the agency.”).
Applying this extremely limited and highly deferen-
tial standard of review, we conclude that the Secretary
has adequately explained the facts and policy matters
underlying the decision to deny the petition, and therefore
employed reasoned decisionmaking. 4

4 The Secretary’s denial also concluded that “sexual
assault is not indisputably associated with particular
places, types, and circumstances of service,” and, there-
fore, petitioners’ requested regulation is inconsistent with
its statutory authority. J.A. 7. Petitioners disagree with
this conclusion, arguing that MST is, in fact, a “circum-
stance” of service. We decline to decide whether MST is a
circumstance of service because the issue presented is not
whether the Secretary could have promulgated the re-
quested rule, but whether the Secretary adequately
explained its reasoning for not doing so. See, e.g., McKin-
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SECRETARY OF VETERANS AFFAIRS

First, the Secretary explained that the current regula-
tion specifically addresses petitioners’ stated concern
regarding “the difficulty of producing evidence to prove
[the] occurrence of an in-service personal assault.” J.A. 4–
5; see also Preminger, 632 F.3d at 1348, 1354 (finding that
the Secretary engaged in reasoned decisionmaking when
denying a petition for rulemaking, where the Secretary
determined that the current regulation effectively ad-
dressed the petitioner’s stated reasons for requesting the
rulemaking). The Secretary acknowledged the “sensitive
nature of MST stressors and the reluctance on the part of
Servicemembers to report such events during military
service” and concluded that the current regulation ac-
commodates those concerns because it relaxes the general
rule requiring veterans to solely rely on evidence con-
tained in their service record by allowing veterans to
provide corroborating evidence from a variety of sources.
J.A. at 4; see also Post-Traumatic Stress Disorder Claims
Based on Personal Assault, 65 Fed. Reg. 61,132 (Oct. 16,
2000) (proposed rule) (“Many incidents of in-service
personal assault are not officially reported, and veterans
may find it difficult to produce evidence to prove the
occurrence of this type of stressor. This proposed amend-
ment addresses this difficulty by specifying that evidence
from sources other than the veteran’s service records may
constitute credible supporting evidence of the in-service
stressor, where the alleged stressor is a personal as-
sault.”).
Second, the denial details the VA’s training programs
regarding MST-based claims. These programs ensure

ney v. McDonald, 796 F.3d 1377, 1384–85 (Fed. Cir. 2015)
(“[T]he issue before us is not whether the VA could have
assigned a retroactive effective date to the 2011 regula-
tion, but rather, whether the VA acted arbitrarily and
capriciously in assigning a prospective date.”).
10 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

that “Department employees develop and adjudicate MST
claims consistent with VA’s regulation and with sensitivi-
ty to the unique circumstances presented by each individ-
ual claim.” J.A. 5. And, as a result of these programs,
grant rates for MST-based PTSD claims increased signifi-
cantly. Id. at 6. Specifically, in 2011, the Veterans Bene-
fits Administration (VBA) directed regional offices to
designate adjudicators with experience in processing
complex claims to assist in development of MST claims
and adjudications. The VBA developed guidance and
training for these adjudicators, including: VBA Training
Letter 11-05 (Dec. 2, 2011); a 1.5 hour webinar on MST
claims adjudication; a 4 hour in-person training on MST;
and a 1.5 hour information session regarding how to
conduct medical examinations of veterans claiming disa-
bility as a result of MST. As a result, the grant rates for
MST-based PTSD claims rose from 38% in 2011 to 52% in
March 2013. Moreover, in 2013, the overall grant rate for
MST-based PTSD claims was 49%—comparable to the
55% grant rate for all PTSD claims.
These statistics adequately support the Secretary’s ul-
timate conclusion that the current regulation and training
program provide “for the accurate, fair, and sensitive
adjudication of claims based on MST.” J.A. 7; see also J.A.
235, Military Sexual Trauma, GAO-14-477 (June 9, 2014)
(some variation in grant rates is expected due to “actual
differences among claims and their levels of evidence”).
Lastly, the denial clarifies that the evidentiary bur-
den for PTSD caused by other stressors does in fact re-
quire a veteran to present threshold evidence of the
specific stressor, contrary to petitioners’ belief. The
Secretary explained that, for example, under
38 C.F.R. § 3.304(f)(2), a veteran has the initial burden of
establishing that he or she “engaged in combat with the
enemy, i.e., personally participated in events constituting
an actual fight or encounter with a military foe or hostile
unit or instrumentality before the Veteran’s testimony,
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SECRETARY OF VETERANS AFFAIRS

alone,” is sufficient to establish the service-connection.
J.A. 6 (citing Moran v. Peake, 525 F.3d 1157, 1159 (Fed.
Cir. 2008); Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed.
Cir. 2007)) (internal quotation marks omitted).
Although others may have determined that petition-
ers’ requested rule is the best way to ensure the accurate,
fair, and sensitive adjudication of MST-based PTSD
claims, that is not the question before us. Ultimately, we
are bound by the very limited and highly deferential
standard of review, which only allows us to determine if
the Secretary’s denial constitutes reasoned decisionmak-
ing. Because the Secretary adequately explained its
reasons for denying the petition and continuing with the
status quo, we conclude that the denial was not arbitrary
or capricious.
III
Lastly, petitioners claim that by denying the petition,
the Secretary violated the equal protection component of
the due process clause of the Fifth Amendment because:
(1) it intentionally discriminates against women without
providing an exceedingly persuasive justification; and (2)
in the alternative, it discriminates against survivors of
MST-based PTSD without providing a legitimate reason.
The government violates equal protection when it in-
tentionally discriminates against an individual based on
race, national origin, or gender. See Berkley v. United
States, 287 F.3d 1076, 1084 (Fed. Cir. 2002). A facially
neutral law or regulation can violate equal protection “if it
was motivated by discriminatory animus and its applica-
tion results in discriminatory effect.” Id. If petitioners
establish that the government engaged in intentional
discrimination, then the government “must demonstrate
an exceedingly persuasive justification” for the discrimi-
nation. United States v. Virginia, 518 U.S. 515, 531
(1996).
12 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

Petitioners assert that women experience MST at a
greater rate than men, and therefore the denial inten-
tionally discriminates against women because it subjects
women to a higher evidentiary burden than men when
claiming disability benefits. See Pet. Br. at 40. When the
government’s particular course of action disproportionate-
ly impacts one gender, an equal protection violation arises
“only if that impact can be traced to a discriminatory
purpose.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,
272 (1979). A discriminatory purpose implies that the
decisionmaker “selected or reaffirmed a particular course
of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Id. at
279.
The record here establishes that both men and women
suffer from MST-based PTSD, and therefore, both men
and women are subject to a higher evidentiary burden to
claim disability benefits for MST-based PTSD. See, e.g.,
Pet. Br. at 11 (“disparity” in grant rates for men suffering
from MST-based PTSD “was especially high”); id. at 30
(“disparity between the approval rate for MST-related
PTSD claims and the overall approval rate for all PTSD
claims nationwide . . . results in disparate impact on both
men and women.”). “When there is a rational, neutral
explanation for the adverse impact and the law or custom
disadvantages both men and women, then an inference of
discriminatory purpose is not permitted.” Ricketts v. City
of Columbia, 36 F.3d 775, 781 (8th Cir. 1994) (emphasis
added) (citing Feeney, 442 U.S. at 275).
The Secretary treats MST-based PTSD claims differ-
ently from other PTSD claims because MST can occur at
any place, at any time, and to anyone and, therefore,
raises challenges not applicable to other PTSD claims.
See Resp. Br. at 42. The VA has determined that veter-
ans suffering from PTSD involving stressors that occurred
under specific circumstances (e.g., while engaged in
combat or being held as a prisoner of war), are relieved of
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SECRETARY OF VETERANS AFFAIRS

the requirement to provide corroborating evidence that
the particular stressor occurred, and instead may estab-
lish the occurrence of the particular stressor through their
lay testimony alone. However, to be relieved of this
evidentiary requirement, the veteran is required to first
present “threshold” evidence establishing that, for exam-
ple, he or she engaged in combat with the enemy or is a
former prisoner of war. See id. at 28; J.A. 45. By requir-
ing the veteran to present this threshold evidence, the VA
is able to consider if the claimed stressor is consistent
with the “places, types, and circumstances” of engaging in
combat with the enemy or being held as a prisoner of war.
MST, however, is not limited to a specific experience
or circumstance, and can unfortunately occur at any
place, at any time, and to anyone. Consequently, there is
no “specific” context or circumstance in which the in-
service stressor occurred. Because MST-based claimants
generally cannot prove that the stressor (MST) occurred
under a specific circumstance, the VA does not have an
opportunity to consider if the MST is consistent with the
places, types, and circumstances of a claimant’s military
service. Thus, the VA requires veterans seeking benefits
for MST-based PTSD to provide corroborating evidence
establishing the occurrence of the MST so that it may
properly consider whether the MST is consistent with the
“places, types, and circumstances” of service. See
Resp. Br. at 30.
This requirement is rational and gender-neutral;
therefore, the Secretary did not act with discriminatory
purpose when denying the petition. Because the denial
was not motivated by a discriminatory purpose, the VA
did not engage in intentional gender discrimination.
Alternatively, petitioners claim that by denying the
petition, the Secretary discriminates between survivors of
MST-based PTSD and survivors of PTSD caused by other
stressors. If discrimination is based on a classification
14 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

other than race, national origin, or gender, the classifica-
tion “must be upheld against [an] equal protection chal-
lenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.”
Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quota-
tions and citation omitted). For the reasons discussed
above, we find the distinction between MST-based PTSD
and non-MST-based PTSD rational.
IV
The court is sympathetic to the many challenges faced
by victims of MST. However, our review of the Secre-
tary’s decision is extremely limited and highly deferential.
For the reasons set forth above, the petition for review is
denied.
PETITION DENIED
No costs.
 United States Court of Appeals
for the Federal Circuit
______________________

SERVICE WOMEN’S ACTION NETWORK,
VIETNAM VETERANS OF AMERICA,
Petitioners

v.

SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________

2014-7115
______________________

Petition for review pursuant to 38 U.S.C. § 502.
______________________

WALLACH, Circuit Judge, dissenting.
Irrespective of whether our military veterans served
in combat, they “risked both life and liberty in their
military service to this country.” Sneed v. Shinseki, 737
F.3d 719, 728 (Fed. Cir. 2013). That is equally true when
our servicepersons become victims at the hands of their
compatriots, especially in cases of sexual assault, which
often results in post-traumatic stress disorder (“PTSD”).
Petitioners in this appeal sought to compel the Secre-
tary of Veterans Affairs (“Secretary”) to promulgate rules
addressing their plight. Their Petition for Rulemaking
was denied. The majority denies the petition for review of
the Secretary’s denial because, in the majority’s view, “the
Secretary adequately explained its reasons for denying
2 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

the [Petition for Rulemaking].” Maj. Op. at 11. However,
the majority does not appreciate that the Secretary failed
to offer a reasoned explanation for treating PTSD claim-
ants differently depending on the context in which the
claimed stressor arose. Because the majority fails to
discern that a critical aspect of the Secretary’s denial is
devoid of reasoned decisionmaking, and is therefore
“arbitrary” within the meaning of the Administrative
Procedure Act, 1 I respectfully dissent.
I.
I first must explain why I disagree with the majority’s
conclusions. It is true the Secretary appears to offer
reasonable responses to a number of issues raised by the
Petition for Rulemaking. See J.A. 4–7 (Letter from Tam-
my L. Kennedy, Acting General Counsel, Department of
Veterans Affairs (“VA”), to Abigail Graber, The Jerome N.
Frank Legal Services Organization, July 14, 2014). First,
the letter acknowledges “the difficulty of producing evi-
dence to prove occurrence of an in-service personal as-
sault” such as military sexual trauma (“MST”), and
explains that 38 C.F.R. § 3.304(f)(5) (2014) addresses this
difficulty by providing that a broad variety of evidence
may be used to “‘corroborate the veteran’s account of the
stressor incident.’” J.A. 4 (quoting 38 C.F.R. § 3.304(f)(5)).
The Secretary also emphasizes in its letter that the list of
potential sources of evidence in § 3.304(f)(5) is “not exclu-
sive.” J.A. 5.
Second, the Secretary’s denial letter addresses Peti-
tioners’ concern that “‘VA adjudicators often misapply the
current evidentiary standard,’” and explains several

1 Pub. L. No. 79-404, § 10(e), 60 Stat. 237, 243–44
(1946) (codified as amended at 5 U.S.C. § 706(2)(A)
(2012)).
SERVICE WOMEN’S ACTION NETWORK v. 3
SECRETARY OF VETERANS AFFAIRS

measures the VA has taken to reduce such errors, includ-
ing the development of “additional guidance and train-
ing.” J.A. 5 (quoting J.A. 330). The letter notes that the
“VA’s grant rate for PTSD claims based on MST rose from
a rate of 38 percent prior to this training initiative to a
rate of 52 percent at the end of February 2013, which was
roughly comparable to the 59-percent grant rate at that
time for all PTSD claims.” J.A. 6 (citation omitted).
Third, and relatedly, the letter explains that the VA
contacted Veterans whose claims were denied between
September 2010 and April 2013, notifying them that
claims could be resubmitted for review. J.A. 6.
Although the Secretary’s letter responds to some of
the issues raised by Petitioners, it does not “explain[] the
facts and policy” matters underlying Petitioners’ chief
concern, namely, the maintenance of different evidentiary
standards for PTSD claims resulting from MST, and
PTSD claims resulting from other stressors. Preminger v.
Sec’y of Veterans Affairs, 632 F.3d 1345, 1353 (Fed. Cir.
2011) (internal quotation marks and citation omitted).
The Secretary’s discussion of the flexible nature of the
evidentiary requirements of § 3.304(f)(5) is not responsive
to this critical issue because it addresses the subsection in
isolation, and does not explain what facts or policy con-
cerns might justify the subsection’s more stringent cor-
roboration requirement as compared to its neighboring
subsections. See Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (Agency action
is arbitrary and capricious when “the agency has . . .
entirely failed to consider an important aspect of the
problem.”). The letter therefore fails to reflect “reasoned
decisionmaking” sufficient to explain the Secretary’s
denial of the Petition for Rulemaking. Preminger, 632
F.3d at 1354 (internal quotation marks and citation
omitted).
4 SERVICE WOMEN’S ACTION NETWORK v.
SECRETARY OF VETERANS AFFAIRS

Similarly, while it is commendable that the VA has
initiated training and outreach efforts to ensure that
MST-based PTSD claims are processed in a “fair, con-
sistent, and thoughtful manner,” J.A. 5, these efforts are
unrelated to the underlying issue of whether a justifica-
tion exists for the different evidentiary requirements in
38 C.F.R. § 3.304(f)(5), 2 and consequently for the Secre-
tary’s decision to deny the Petition for Rulemaking, see
Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of
Trade, 412 U.S. 800, 808 (1973) (An agency has a “duty to
explain its departure from prior norms.” (citation omit-
ted)); id. (The grounds for an agency’s departure “must be
clearly set forth so that the reviewing court may under-
stand the basis of the agency’s action and so may judge
the consistency of that action with the agency’s man-
date.”). Training efforts may address the discriminatory
effects produced by the different evidentiary standards,
but they do not provide a rationale for the differing
standards themselves. For the Secretary’s denial to be
upheld, it must either offer some rationale that could
explain the maintenance of different standards for simi-
larly situated claimants, or it must explain why such
claimants are in fact not similarly situated. See Burling-
ton N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403
F.3d 771, 777 (D.C. Cir. 2005) (“Where an agency applies
different standards to similarly situated entities and fails
to support this disparate treatment with a reasoned
explanation and substantial evidence in the record, its

2 In 2002, the VA added subsection (f)(3) to § 3.304,
which is now codified in subsection (f)(5). Post-Traumatic
Stress Disorder Claims Based on Personal Assault, 67
Fed. Reg. 10,330 (Mar. 7, 2002). At the time the VA
promulgated this subsection, the VA’s regulations con-
tained evidentiary standards for non-MST stressors. See
38 C.F.R. § 3.304(f) (2001).
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action is arbitrary and capricious and cannot be upheld.”
(citation omitted)).
II.
An examination of the regulation’s text, along with
well-accepted principles of administrative law, reveals
that we cannot sustain the Secretary’s denial of the
Petition for Rulemaking. Section 3.304(f) of Title 38 of
the Code of Federal Regulations sets forth three require-
ments for establishing service-connection for PTSD: “[1]
medical evidence diagnosing [PTSD] . . . ; [2] a link,
established by medical evidence, between current symp-
toms and an in-service stressor; and [3] credible support-
ing evidence that the claimed in-service stressor
occurred.” 38 C.F.R. § 3.304(f) (2014) (emphasis added).
These requirements apply regardless of the cause of the
PTSD.
However, in subsections (1) through (4) of § 3.304(f),
“the veteran’s lay testimony alone” can constitute “credi-
ble supporting evidence.” See 38 C.F.R. § 3.304(f)(1)
(diagnosis of PTSD during service); id. § 3.304(f)(2) (com-
bat-related PTSD); id. § 3.304(f)(3) (PTSD related to “fear
of hostile military or terrorist activity”); id. § 3.304(f)(4)
(PTSD related to prisoner-of-war status). By contrast,
where PTSD is caused by MST, the veteran’s lay testimo-
ny alone does not constitute “credible supporting evi-
dence,” and corroboration of that testimony is required.
See id. § 3.304(f)(5) (listing numerous non-exclusive
examples of the types of evidence that “may corroborate
the veteran’s account of the [MST-related] stressor inci-
dent”). 3 The Secretary in its denial letter offers no expla-
nation of the different requirements.

3 Despite the VA’s use of the permissive term
“may,” the agency interprets this regulation to require
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Instead, the Secretary explains what a veteran must
establish under § 3.304(f)(2)–(3). The denial letter notes
that veterans claiming combat-related PTSD must first
“establish [under § 3.304(f)(2)] that he or she ‘engaged in
combat with the enemy,’ i.e. ‘personally participated in
events constituting an actual fight or encounter with a
military foe or hostile unit or instrumentality.’” J.A. 6
(quoting Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir.
2008)). The letter explains that Ҥ 3.304(f)(3) . . . elimi-
nates the [corroboration] requirement . . . if a stressor
claimed . . . is related to . . . fear of hostile military or
terrorist activity.” J.A. 6. In its brief, the Secretary adds
that “a veteran seeking PTSD benefits as a result of a
prisoner of war experience must still establish that he or
she was a prisoner-of-war.” Resp’t’s Br. 29 (internal
quotation marks and citations omitted).
These explanations by the Secretary do not address
the differential evidentiary requirements imposed by
regulation. As noted, § 3.304(f) requires all claimants
who seek to establish service-connection for PTSD to
provide “credible supporting evidence that the claimed in-
service stressor occurred.” 38 C.F.R. § 3.304(f). 4 Of

corroborating evidence in addition to the veteran’s testi-
mony. See J.A. 4 (“Your proposal would eliminate the
requirement for corroborating evidence.”), 49 (discussing
the “requirement for seeking markers” from among the
§ 3.304(f)(5) evidentiary categories); Respondent’s Br. 2
(noting the “corroborating evidence requirement for MST
claims”), 6 (“[A] veteran’s lay testimony alone, without
any corroboration, is not sufficient [under § 3.304 (f)(5)].”).
4 Subsections (2) through (4) of 38 C.F.R. § 3.304(f)
eliminate the need not for credible supporting evidence,
but for corroborating evidence, see, e.g., J.A. 4, 6, 210, that
is, evidence in addition to the veteran’s own testimony.
See Evidence: corroborating evidence, Black’s Law Dic-
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SECRETARY OF VETERANS AFFAIRS

course, the lay testimony of claimants asserting combat-
related, fear-related, or prisoner-of-war related PTSD
would not be credible if the claimants were in fact not
prisoners of war, or were not involved in combat or situa-
tions where the Veteran was confronted with the threat of
enemy activity. Similarly, the lay testimony of claimants
asserting MST-related PTSD would not be credible if the
claimant did not in fact serve in the military. Subsection
(f)(5), however, imposes a corroboration requirement even
if the evidence establishes the claimant served in the
military and the claimed in-service stressor is related to
that service.
Once it is established that a PTSD claimant was in
fact a prisoner of war, or was involved in combat or
threatened by enemy activity, that claimant is similarly
situated to the claimant seeking service connection for
MST-related PTSD who has established service in the
military: both were serving in a context where exposure
to a specific stressor could—but would not necessarily—
occur, see J.A. 7, 43, and both must provide “credible
supporting evidence that the claimed in-service stressor
occurred.” 38 C.F.R. § 3.304(f). The difference arises at

tionary (10th ed. 2014) (“Evidence that differs from but
strengthens or confirms . . . other evidence . . . .”). They
also instruct that the veteran’s lay testimony alone can
constitute the required “credible supporting evidence,” but
only in the circumstances described in those subsections.
See, e.g., No. 09-48 429, 2011 WL 1802066, at *3 (Bd. Vet.
App. Mar. 15, 2011) (“Provided . . . the Veteran engaged
in ‘combat with the enemy,’ his lay testimony alone con-
stitutes credible supporting evidence . . . .” (citation
omitted)); No. 02-18 881, 2005 WL 3921319, at *2 (Bd.
Vet. App. Nov. 17, 2005) (“[A] noncombat veteran’s testi-
mony alone does not qualify as ‘credible supporting evi-
dence’ . . . .” (emphasis added)).
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this point, when the lay testimony of the claimant for
MST-related PTSD will alone be insufficient to establish
the occurrence of a specific stressor, whereas the same
testimony alone will be sufficient in the case of other
claimants. The Secretary has offered no rationale for this
distinction.
It may be that the Secretary can offer “facts and poli-
cy concerns” that support differential treatment, Premin-
ger, 632 F.3d at 1353, but the failure to do so in its denial
letter provides no basis for this court to conclude that the
decision was not arbitrary, Williams Gas Processing-Gulf
Coast Co., L.P. v. Fed. Energy Regulatory Comm’n, 475
F.3d 319, 326 (D.C. Cir. 2006) (“Arbitrary and capricious
review ‘demands evidence of reasoned decisionmaking at
the agency level . . . .’” (quoting Kan. City v. HUD, 923
F.2d 188, 192 (D.C. Cir. 1991)). It is not the job of this
court to fill in the gaps in the agency’s analysis. The
agency must explain why a different standard is justified.
See Point Park Univ. v. NLRB, 457 F.3d 42, 50 (D.C. Cir.
2006) (“Nor can our Court fill in critical gaps in [an agen-
cy’s] reasoning. We can only look to the [agency’s] stated
rationale. We cannot sustain its action on some other
basis the [agency] did not mention.” (citation omitted));
see also Timken U.S. Corp. v. United States, 421 F.3d
1350, 1355 (Fed. Cir. 2005) (“[I]t is well settled that an
agency must explain its action with sufficient clarity to
permit ‘effective judicial review.’” (quoting Camp v. Pitts,
411 U.S. 138, 142–43 (1973))); Mortg. Inv’rs Corp. of Ohio
v. Gober, 220 F.3d 1375, 1378 (Fed. Cir. 2000).
III.
“There was a time not long ago when courts and legal
scholars viewed allegations of rape [and other forms of
sexual assault] with automatic suspicion, and judges
instructed juries accordingly.” Osburn v. Hagel, 46 F.
Supp. 3d 1235, 1244 n.3 (M.D. Ala. 2014) (citation omit-
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SECRETARY OF VETERANS AFFAIRS

ted). Thankfully, those days are supposed to be behind
us, but the Secretary’s denial letter provides a reminder
of the need to be ever vigilant lest such irrational bias
encroach once again into the legal and regulatory sphere.
Unfortunately, we are unable to know whether that is the
case with respect to 38 C.F.R. § 3.304(f)(5), because no
explanation whatsoever has been provided. Because the
Secretary’s denial of the Petition for Rulemaking does not
describe any facts or policy concerns that might justify the
disparate evidentiary requirements applied to similarly
situated veterans claiming service connection for PTSD, it
does not evince reasoned decisionmaking. I therefore
respectfully dissent.