Viale v. Wilkie

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ROBERT V. VIALE,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2017-2532
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3677, Senior Judge Kenneth B.
Kramer.
______________________

Decided: August 23, 2018
______________________

GWENDOLYN TAWRESEY, Pepper Hamilton LLP, Bos-
ton, MA, argued for claimant-appellant. Also represented
by GOUTAM PATNAIK, Washington, DC.

ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR., CHAD A. READLER; BRIAN D.
2 VIALE v. WILKIE

GRIFFIN, ANDREW J. STEINBERG, Office of General Coun-
sel, United States Department of Veterans Affairs, Wash-
ington, DC.
______________________

Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
O’MALLEY, Circuit Judge.
Robert V. Viale appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his claim for service connection for post-
traumatic stress disorder (“PTSD”), which he alleges
developed as a result of a stressor event he experienced
more than fifty years ago. See Viale v. Shulkin, No. 15-
3677, 2017 WL 2628379 (Vet. App. June 19, 2017). Be-
cause Viale’s challenge amounts to a request to reweigh
the evidence, we dismiss the appeal for lack of jurisdic-
tion.
BACKGROUND
Viale served on active duty as an officer in the U.S.
Army from October 1966 to October 1968. During his
first year of service, Viale worked as a battalion mainte-
nance officer in Korea, where he earned high performance
marks from his commanding officers. Beginning in Au-
gust 1967, however, Viale was assigned to a six-month
stint in Bangkok, Thailand, as a transportation officer.
Viale claims that, shortly after arriving in Thailand, he
observed thousands of batteries, tires, and other supplies
missing from the motor pool, leading him to suspect
corruption among the officers in charge. According to
Viale, when he informed his commanding officer of the
missing items, he was told to “shut up” and not to tell
anyone of his suspicions. Id. at *1. Viale also claims that,
around that time, his roommate told him of another
officer who allegedly discovered similar corruption and
was murdered on his way home from work, and whose
death was covered up by the military. Viale alleges that
VIALE v. WILKIE 3

he reported the corruption to the Inspector General, who,
despite revealing that the “whole command was corrupt,”
took no action. Id.
Viale testified that he was thereafter assigned to de-
liver a vehicle to northern Thailand by driving it alone, at
night, and without any weapons. He claims that this
order was inconsistent with the standard practice at the
time of delivering vehicles across Thailand by air, and
further claims that he was not authorized to drive in the
country. Believing that this was a plot to kill him, Viale
testified that he requested and received a note from a
doctor at the U.S. Embassy excusing him from the as-
signment. After purportedly presenting the note to his
commanding officer, Viale was verbally reprimanded and
received poor performance evaluations until late 1967,
when he was transferred back to Korea. Thereafter, Viale
again earned high marks until he returned to the United
States.
In January 2008—nearly forty years after his active
military service ended—Viale filed a claim for disability
compensation with the Department of Veterans Affairs
(“VA”) seeking service connection for various acquired
psychiatric conditions, including PTSD. Viale alleged
that his experience in Thailand constituted an in-service
stressor event that gave rise to his PTSD years later. The
VA denied Viale’s claim, and the Board of Veterans’
Appeals (“Board”) affirmed, finding that Viale failed to
provide “enough credible detail to corroborate the alleged
stressor.” J.A. 16. The Veterans Court then affirmed the
Board’s ruling, finding that Viale’s challenge to that
ruling “amount[ed] to a mere disagreement with the
Board’s weighing of the evidence[.]” Viale, 2017 WL
2628379, at *2.
Viale appealed to this court, seeking to invoke our ju-
risdiction under 38 U.S.C. § 7292(a).
4 VIALE v. WILKIE

DISCUSSION
“This court’s jurisdiction to review decisions by the
Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). We “shall decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1); see also id.
§ 7292(a); Halpern v. Principi, 384 F.3d 1297, 1300 (Fed.
Cir. 2004). Absent a constitutional issue, however, we
“may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” 38 U.S.C § 7292(d)(2).
According to 38 C.F.R. § 3.304(f), “[a] non-combat vet-
eran seeking to establish service connection for PTSD
must establish (1) a current medical diagnosis of PTSD;
(2) a link between the current symptoms and an in-service
stressor; and (3) ‘credible supporting evidence that the
claimed in-service stressor occurred.’” Kays v. Snyder,
846 F.3d 1208, 1211 (Fed. Cir. 2017) (quoting 38 C.F.R.
§ 3.304(f)). The parties’ dispute here concerns only the
third requirement—i.e., whether Viale produced sufficient
evidence to corroborate the claimed stressor event.
Section 3.304(f)(5) enumerates several categories of
corroborating evidence that may be used in cases where,
as here, a PTSD claim is based on “in-service personal
assault.” 1 In such cases, the veteran can rely on “state-
ments from family members,” as well as “[e]vidence of
behavior changes,” including “deterioration in work
performance” and “unexplained economic or social behav-

1 Because Viale does not allege that an actual
assault took place, it is questionable whether § 3.304(f)(5)
applies. We need not resolve this issue because we, like
the Veterans Court, see Viale, 2017 WL 2628379, at *2,
assume without deciding that § 3.304(f)(5) applies to the
facts here.
VIALE v. WILKIE 5

ior changes.” 38 C.F.R. § 3.304(f)(5). Section 3.304(f)(5),
however, does not relieve the burden otherwise imposed
on the veteran by § 3.304(f) to corroborate the stressor
event. See Kays, 846 F.3d at 1211; Serv. Women’s Action
Network v. Sec’y of Veterans Affairs, 815 F.3d 1369, 1373
(Fed. Cir. 2016) (“[W]hen the stressor is related to an in-
service personal assault, . . . the veteran is required to
provide corroborating evidence to substantiate the occur-
rence of the stressor.”). Instead, the provision “merely
defines the scope of allowable evidence to be used in
determining whether a stressor is corroborated.” Mene-
gassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011).
“[O]nce such evidence is submitted, it is incumbent on
the Board to evaluate the weight of the evidence,” which
involves “quintessential factual inquir[ies]” regarding the
veteran’s “evidence, statements, and credibility.” Kays,
846 F.3d at 1211–12 (internal quotation marks omitted).
This is precisely the analysis the Board undertook here.
First, the Board considered Viale’s testimony about how
his life had changed after returning from Thailand but
found that the testimony was “contradictory” to other
evidence in the record. Such evidence included:
(1) Viale’s medical history report, completed one year
after he was transferred out of Thailand, in which he
“denied ever having or having then depression or exces-
sive worry or nervous trouble of any sort”; and (2) 1998
and 1999 medical records of a PTSD screening, indicating
that Viale “specifically denied any terrible experience that
involved being attacked or being threatened” while in
service. J.A. 17–18. The Board noted that these records
were “made contemporaneously with the time periods in
question” and determined that they “contradict [Viale’s]
allegation that he was immediately and permanently
impacted by his Thailand experience.” J.A. 18.
The Board next considered the negative performance
review that Viale received during his service in Thailand,
but found it insufficiently corroborative, in part because
6 VIALE v. WILKIE

Viale received stellar marks immediately upon returning
to Korea. Finally, the Board cited other examples of
inconsistent statements provided by Viale and determined
that they “further weaken[ed]” his claim. Id. Weighing
the evidence, the Board concluded that “the events de-
scribed in service and alleged by [Viale] as the cause of
his psychiatric disability” were “lacking credibility.” J.A.
20. The Board thus engaged in a series of fact-intensive
credibility determinations that we lack jurisdiction to
review. See Bastien v. Shinseki, 599 F.3d 1301, 1306
(Fed. Cir. 2010) (“The evaluation and weighing of evi-
dence and the drawing of appropriate inferences from it
are factual determinations committed to the discretion of
the fact-finder. We lack jurisdiction to review these
determinations.”); see also Gardin v. Shinseki, 613 F.3d
1374, 1380 (Fed. Cir. 2010) (“Whether the Veterans Court
was correct in affirming the Board’s credibility determina-
tion is a question of fact beyond this court’s jurisdiction.”).
Viale’s attempt to characterize his challenge as legal
in nature fails. Viale argues, for example, that the Board
misapplied the law by imposing a heightened burden to
corroborate the in-service stressor event. Viale latches
onto the Board’s statement that Viale was required to
“verify”—instead of “corroborate”—the occurrence of the
stressor. J.A. 8; J.A. 16–17; J.A. 19–20. Viale reads too
much into the Board’s choice of words. Nowhere did the
Board categorically dismiss potentially corroborative
evidence or otherwise impose a heightened standard.
Rather, the Board discussed all the evidence of record and
gave more weight to the evidence that refuted Viale’s
claims than to the evidence that supported them. Thus,
the Board’s use of the word “verifying” does not constitute
legal error that would give us jurisdiction over Viale’s
appeal. Cf. Belcher v. Shinseki, 490 F. App’x 353, 355–56
(Fed. Cir. 2012) (per curiam) (dismissing appeal where
the appellant argued that the Veterans Court applied “too
stringent a standard” merely because the court used the
VIALE v. WILKIE 7

phrase “meaningful support” rather than the phrase
“credible support,” which appears in the relevant statute
and regulation).
Viale next argues that the Board failed to consider
“all information and lay and medical evidence of record,”
as required under 38 U.S.C. § 5107(b) and 38 C.F.R.
§ 3.303(a). In particular, Viale asserts that the Board did
not consider letters from Viale’s sisters that attest to his
personality changes upon returning from Thailand. But
there is a presumption that the Board did consider such
evidence. See Newhouse v. Nicholson, 497 F.3d 1298,
1302 (Fed. Cir. 2007) (“There is a presumption that VA
considered all of the evidence of record. . . . The evidence
was before the Board. The fact that it was not specifically
mentioned in the Board’s decision in this case is insuffi-
cient to overcome this presumption.” (citation omitted));
Howlett v. Shinseki, 431 F. App’x 925, 927 (Fed. Cir. 2011)
(“The Board is presumed to have considered all evidence
of record at the time of the VA’s determination of service
connection. Nothing requires the Board to discuss every
piece of submitted evidence in its decision.” (citation
omitted)). Viale does not provide persuasive reasons why
we should disregard that presumption here.
While it is true that the Board’s decision does not ref-
erence the letters in the section addressing Viale’s PTSD
claims, the decision does reference the letters in a section
addressing his claims vis-à-vis another psychiatric condi-
tion. In that section, the Board determined that the
letters were inconsistent with Viale’s own statements at
various times throughout his life and were “not supported
by the contemporaneous records.” J.A. 20. Thus, the
Board clearly considered the letters for their evidentiary
value, even if it did not expressly do so in the context of
discussing PTSD. Viale’s argument on this score is no
more than a disagreement with the Board’s weighing of
the evidence, which, again, we do not have jurisdiction to
review. Howlett, 431 F. App’x at 927–28.
8 VIALE v. WILKIE

Relatedly, Viale argues that the Board improperly
construed the absence of contemporaneous evidence of the
stressor event as evidence that the event did not occur, in
contravention of AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir.
2013). In AZ, we held that, “where an alleged sexual
assault[] . . . is not reported, the absence of service records
documenting the alleged assault is not pertinent evidence
that the assault did not occur” for purposes of § 3.304(f)’s
corroboration requirement. Id. at 1318. Even assuming
AZ applies to the facts here, it would prohibit the Board
only from using the absence of a report pertaining to the
events that occurred in Thailand as evidence that the
events did not occur. The Board did not commit such an
error. Rather, the Board noted that Viale’s evidence was
inconsistent with the statements that he made years
earlier. In other words, the Board determined that con-
flicting evidence—and not merely the absence of evi-
dence—precluded Viale’s claim.
Finally, Viale argues that the Board’s treatment of his
performance reviews is inconsistent with the standard set
forth in 38 C.F.R. § 3.304(f)(5), which expressly lists
“deterioration in work performance” as one category of
permissible corroborating evidence. Viale further asserts
that the Board substituted its own medical judgment by
concluding that Viale’s low performance evaluations
immediately following the incident in Thailand were not
probative merely because, after Viale returned to Korea,
his performance reviews improved. But, the mere fact
that § 3.304(f)(5) lists “deterioration in work performance”
as one type of evidence that may be considered does not
mean that such evidence is always determinative. See
Kays, 846 F.3d at 1211 (“[W]e have rejected the argument
that a veteran meets this burden [imposed by § 3.304(f)]
by pointing to any evidence.”); Menegassi, 638 F.3d at
1382 n.1 (“The mere submission of [evidence], pursuant to
38 C.F.R. § 3.304(f)(5), does not preclude the Board from
making a factual determination regarding the weight to
VIALE v. WILKIE 9

be given that [evidence].”). Here, the Board considered
the evidence for its probative value, which is all that
§ 3.304(f)(5) required. See AZ, 731 F.3d at 1311 (“Sup-
porting evidence found in [the sources enumerated in
§ 3.304(f)(5)], if credible and pertinent, is positive evi-
dence of the in-service stressor that the VA must consid-
er.”). Although it is possible that we might have weighed
Viale’s disparate performance evaluations differently had
we considered them in the first instance, we do not have
jurisdiction to review the Board’s weighing of that evi-
dence.
CONCLUSION
For the foregoing reasons, we dismiss Viale’s appeal
for lack of jurisdiction.
DISMISSED
COSTS
No costs.