United States Court of Appeals
for the Federal Circuit
__________________________
NATIONAL ORGANIZATION OF VETERANS’
ADVOCATES, INC.,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
PARALYZED VETERANS OF AMERICA,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
VETERANS OF MODERN WARFARE
AND NATIONAL VETERANS LEGAL SERVICES
PROGRAM,
Petitioners,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
WOUNDED WARRIOR PROJECT
AND VIETNAM VETERANS OF AMERICA,
Petitioners,
NATIONAL ORG OF VETERANS ADV v. VA 2
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-7136, -7139, -7142, 2011-7041
__________________________
On petition for review pursuant to 38 U.S.C. Section
502.
______________________________
Decided: January 20, 2012
______________________________
DAVID H. TENNANT, Nixon Peabody, LLP, of Roches-
ter, New York, argued for petitioner. On the brief were
RICHARD P. COHEN, National Organization of Veterans’
Advocates, Inc., of Washington, DC; and DOUGLAS J.
ROSINSKI, Pillsbury Winthrop Shaw Pittman, LLP, of San
Francisco, California.
MICHAEL P. HORAN, Deputy General Counsel, Para-
lyzed Veterans of America, of Washington, DC, argued for
petitioner. With him on the brief were WILLIAM S.
MAILANDER, General Counsel, and JENNIFER A. ZAJAC,
Assistant General Counsel.
BARTON F. STICHMAN, National Veterans Legal Ser-
vices Program, of Washington, DC, argued for the peti-
tioners. Of counsel on the brief were STEPHEN B.
KINNAIRD and SEAN D. UNGER, Paul Hastings Janofsky &
Walker, LLP, of Washington, DC.
3 NATIONAL ORG OF VETERANS ADV v. VA
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued respondent.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and MARTIE ADELMAN, Attorney, of United
States Department of Veterans Affairs, of Washington,
DC.
MICHAEL WISHNIE, Veterans Legal Services Clinic, of
New Haven, Connecticut, for amici curiae. With him on
the brief was JEFFREY SELBIN.
__________________________
Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
The National Organization of Veterans Advocates,
Paralyzed Veterans of America, Veterans of Modern
Warfare and National Veterans Legal Services (collec-
tively “Petitioners”) challenge a rule issued by the Secre-
tary of Veterans Affairs (“Secretary”) amending 38 C.F.R
§ 3.304(f) with respect to claims for service-connected
disability benefits for posttraumatic stress disorder
(“PTSD”). Petitioners contend that the new rule is con-
trary to existing statutes and arbitrary and capricious in
nature. We conclude that the new rule is a permissible
application of the statute by the Secretary and not in
violation of any law or rule. We therefore deny the peti-
tion.
I
The rule at issue here concerns PTSD. The Diagnos-
tic and Statistical Manual of Mental Disorders, Fourth
NATIONAL ORG OF VETERANS ADV v. VA 4
Edition (“DSM-IV”), classifies PTSD as an anxiety disor-
der. A person may develop PTSD after exposure to a
stress inducing event, such as threatened death or serious
injury. Persons suffering from PTSD reexperience the
traumatic event in several ways, including nightmares,
flashbacks, and physiological or psychological reactions to
stimuli reminiscent of the damaging experience. As a
result, those suffering from PTSD may remove themselves
from the world and those around them in an effort to
avoid that which could trigger a response. Tragically, an
estimated ten to thirty percent of United States Armed
Services personnel will develop PTSD within a year of
leaving combat. See Nat’l Council on Disability, Invisible
Wounds: Serving Service Members and Veterans with
PTSD and TBI 2-3 (Mar. 4, 2009), available at
http://www.ncd.gov/publications/2009/March042009
(“Invisible Wounds”).
The United States has deployed over 1.6 million
troops in the recent wars in Iraq and Afghanistan. Id. at
8. Those conflicts have been characterized by guerilla
warfare tactics and the inherent uncertainty that comes
with it. Moreover, many troops have served multiple
tours of duty with little respite in between. It is no sur-
prise that these conditions are particularly likely to lead
to increased incidences of PTSD. See id. at 21-23.
The troops who return home and develop PTSD are
often faced with more than reliving the horrors of war.
Veterans with PTSD suffer from more chronic conditions
and have shorter life spans than veterans without PTSD.
PTSD has also been linked to higher divorce rates and
joblessness. Id. at 18. Against this backdrop, the Secre-
tary amended the Department of Veterans Affairs (“VA”)
regulations to address the serious problem of troops
returning home with PTSD.
5 NATIONAL ORG OF VETERANS ADV v. VA
II
Like other injuries, veterans who suffer from service-
connected PTSD are eligible for benefits. The Secretary
has the authority to issue regulations which establish the
requirements for veterans to qualify for service-connected
PTSD injuries. 38 U.S.C. § 501(a). Specific rules govern
the diagnosis of PTSD and the evidence required to con-
nect a diagnosis to military service. Generally, a finding
of PTSD service-connection requires three components:
“medical evidence diagnosing the condition in accordance
with § 4.125(a) of this chapter; a link, established by
medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the
claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f).
The VA proposed a rule on August 24, 2009, creating
an additional situation where a veteran could establish
PTSD service-connection without supporting evidence
regarding the claimed in-service stressor. Stressor De-
terminations for Posttraumatic Stress Disorder, 74 Fed.
Reg. 42,617 (Aug. 24, 2009). That rule, codified at 38
C.F.R. § 3.304(f)(3), is at issue here:
If a stressor claimed by a veteran is related to the
veteran’s fear of hostile military or terrorist activ-
ity and a VA psychiatrist or psychologist, or a psy-
chiatrist or psychologist with whom VA has
contracted, confirms that the claimed stressor is
adequate to support a diagnosis of posttraumatic
stress disorder and that the veteran’s symptoms
are related to the claimed stressor, in the absence
of clear and convincing evidence to the contrary,
and provided the claimed stressor is consistent
with the places, types, and circumstances of the
veteran’s service, the veteran’s lay testimony
alone may establish the occurrence of the claimed
NATIONAL ORG OF VETERANS ADV v. VA 6
in-service stressor. For purposes of this para-
graph, “fear of hostile military or terrorist activ-
ity” means that a veteran experienced, witnessed,
or was confronted with an event or circumstance
that involved actual or threatened death or seri-
ous injury, or a threat to the physical integrity of
the veteran or others, such as from an actual or
potential improvised explosive device; vehicle-
imbedded explosive device; incoming artillery,
rocket, or mortar fire; grenade; small arms fire,
including suspected sniper fire; or attack upon
friendly military aircraft, and the veteran’s re-
sponse to the event or circumstance involved a
psychological or psycho-physiological state of fear,
helplessness, or horror.
The new rule has three features relevant to this chal-
lenge: one, it allows a veteran to establish PTSD without
supporting evidence; two, the lower evidentiary standard
only applies if a VA psychologist or psychiatrist, or one
who has contracted with the VA, confirms the claimed-
stressor supports the diagnosis; and three, it defines the
veteran’s “fear of hostile military or terrorist activity” as
involving a response characterized by “a psychological or
psycho-physiological state of fear, helplessness, or horror.”
Id. As explained by the Secretary at oral argument, the
rule does not require a VA practitioner to confirm the
diagnosis of PTSD. Rather, a VA practitioner is only
required to confirm that the claimed-stressor supports the
diagnosis.
The VA explained that the rule was “intended to ac-
knowledge the inherently stressful nature” of serving
where “hostile military or terrorist activities [are] ongo-
ing.” 74 Fed. Reg. at 42,617. The goal was “to facilitate
the timely VA processing of PTSD claims by simplifying
the development and research procedures that apply to
7 NATIONAL ORG OF VETERANS ADV v. VA
these claims.” Id. Pursuant to procedure, the VA invited
responses to the proposed rule and received 126 com-
ments, including critiques, from various organizations,
including Petitioners here.
The VA responded to the comments but left the rule
as proposed. 75 Fed. Reg. 39,843 (July 13, 2010). The
majority of comments were aimed at the rule’s distinction
between private psychologists and psychiatrists and those
employed or associated with the VA. The comments
suggested that the new rule should extend to all qualified
practitioners. The VA declined to extend the rule beyond
VA practitioners, explaining that PTSD diagnoses are
“particularly complex.” Id. at 39,847. This complexity
was only increased as the new rule added an extra wrin-
kle—the examiner would now also make the “forensic”
determination that the claimed-stressor as described by
the veteran was sufficient to support a PTSD diagnosis.
See id.
VA practitioners, the VA contended, were particularly
able to make this forensic determination for several
reasons: First, VA practitioners are given specific instruc-
tion on how to conduct PTSD examinations, including
guidance materials and a certification process. Id. Sec-
ond, the VA reviews the quality of its practitioners’ ex-
aminations, including taking steps to address identifiable
problems with feedback and training. Id. Third, the VA
provides VA associated practitioners with the veterans’
claims folders in connection with all mental-disorder
examinations, including PTSD examinations. Id. The
practitioners are in turn instructed that a PTSD diagnosis
cannot occur without a review of the folder. In contrast,
private practitioners do not have direct access to a vet-
eran’s claims folder. Id. at 39,847-48. Fourth, the VA
noted that limiting the rule to VA associated practitioners
would “ensure standardization and consistency.” Id. at
NATIONAL ORG OF VETERANS ADV v. VA 8
39,848. The consistency would be a product of both the
large number of PTSD examinations performed by VA
practitioners and the review of those examinations by the
VA. Because the VA does not control the quality of pri-
vate practitioners’ examinations, it could not ensure,
manage, or develop the same level of quality and consis-
tency. For these reasons, the VA opted to leave the rule
as proposed. Id.
Petitioners subsequently filed a timely petition to re-
view the final rule. This court has jurisdiction to review
the validity of the final rule under 38 U.S.C. § 502. The
review is conducted in accordance with 5 U.S.C. § 706 of
the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701 et seq.
III
We examine the regulation here under the framework
provided in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). First, we must
determine “whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is
clear, that is the end of the matter . . . .” Id. at 842.
Second, if “Congress has not directly addressed the pre-
cise question at issue,” we must determine if the Secre-
tary’s regulation is “based on a permissible construction of
the statute.” Id. at 843. The agency’s regulation will
stand unless it is “arbitrary or capricious in substance, or
manifestly contrary to the statute.” United States v.
Mead Corp., 533 U.S. 218, 227 (2001).
IV
On appeal, Petitioners assert that the new VA rule:
(1) conflicts with statutes and regulations that require the
VA to consider all medical evidence on a case-by-case
basis, including evidence from private physicians, and
9 NATIONAL ORG OF VETERANS ADV v. VA
that require the VA to give the veteran the benefit of the
doubt when considering all evidence in the record;
(2) improperly includes language that is not required in
the DSM-IV; and (3) should be set aside as arbitrary and
capricious on grounds that none of the VA’s proffered
explanations provides a rational basis for excluding
private doctors’ opinions. We address each argument in
turn.
A. The VA Rule
The Secretary issued the rule pursuant to 38 U.S.C.
§ 501(a). That statute provides the Secretary with the
ability to prescribe all “necessary” and “appropriate” rules
to carry out the laws administered by the VA, including
“regulations with respect to the nature and extent of proof
and evidence and the method of taking and furnishing
them in order to establish the right to benefits under such
laws . . . .” 38 U.S.C. § 501(a)(1). Congress’s delegation of
authority here was broad. Nonetheless, Petitioners
contend that the regulation is in conflict with several
statutes and is therefore contrary to law. We disagree
and find that Congress has not spoken on the precise
issue addressed by the new rule.
First, Petitioners contend that the regulation is con-
trary to 38 U.S.C. § 1154(a). Section 1154(a) requires that
the Secretary’s regulations concerning veterans’ benefits
claims give “due consideration” to “the places, types, and
circumstances of such veteran’s service” including “all
pertinent medical and lay evidence.” 38 U.S.C. § 1154(a).
Petitioners contend that because the regulation allows for
a PTSD service connection to be established based on a
VA practitioner’s conclusion without corroborating evi-
dence but not a private practitioner’s, the rule does not
give “due consideration” to all medical evidence.
NATIONAL ORG OF VETERANS ADV v. VA 10
Petitioners’ argument reads too much into the phrase
“due consideration.” Rather than directly addressing
what “due consideration” entailed, Congress left that task
to the Secretary. See id.; 38 U.S.C. § 501(a)(1). Under the
regulation, a private practitioner’s examination will be
considered along with a VA practitioner’s assuming there
is also corroborating evidence of the claimed stressor. The
new rule, however, provides a relaxed evidentiary stan-
dard only where a VA practitioner concludes that the
claimed-stressor occurred. Because the phrase “due
consideration” is unambiguous and private examinations
are considered in the normal course of a PTSD determina-
tion, the new rule cannot be said to directly conflict with
§ 1154(a).
Second, Petitioners contend that the regulation is con-
trary to 38 U.S.C. § 5125, which provides that:
For purposes of establishing any claim for benefits
under chapter 11 or 15 of this title, a report of a
medical examination administered by a private
physician that is provided by a claimant in sup-
port of a claim for benefits under that chapter
may be accepted without a requirement for con-
firmation by an examination by a physician em-
ployed by the Veterans Health Administration if
the report is sufficiently complete to be adequate
for the purpose of adjudicating such claim.
The key word in the statute is “may.” The VA “may”
accept a private physician’s report, but it does not have to.
See id. To the extent Petitioners contend that the VA
must consider private practitioner’s reports in all circum-
stances, Congress has directly addressed that issue here
and concluded only that the VA “may” accept such re-
ports. Also, the new rule does not require a VA confirma-
11 NATIONAL ORG OF VETERANS ADV v. VA
tion of a medical examination by a private practitioner.
As such, the rule is not in direct conflict with § 5125.
Third, Petitioners contend that the new rule is con-
trary to 38 U.S.C. § 5107(b), which provides that:
The Secretary shall consider all information and
lay and medical evidence of record in a case before
the Secretary with respect to benefits under laws
administered by the Secretary. When there is an
approximate balance of positive and negative evi-
dence regarding any issue material to the deter-
mination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
The statute is clear that the Secretary shall consider
all medical evidence and give the benefit of the doubt to
the claimant when there is an approximate balance of
evidence. What is not expressed is what that considera-
tion entails or what weight any given piece of evidence is
to carry. Those questions were left to the Secretary to
determine under 38 U.S.C. § 501(a). The new rule is an
exercise of that authority, and it is not in conflict with
§ 5107(b). The new rule, moreover, does not actually pit
one set of evidence against another. Rather, it provides
several options for establishing service connection under
either a VA examination or a private physician examina-
tion.
Petitioners also contend that the new rule is contrary
to 38 C.F.R. § 4.125(a), which provides standards used in
DSM-IV. Specifically, the regulation states that “[i]f the
diagnosis of a mental disorder does not conform to DSM-
IV or is not supported by the findings on the examination
report, the rating agency shall return the report to the
examiner to substantiate the diagnosis.” Id.
NATIONAL ORG OF VETERANS ADV v. VA 12
Under DSM-IV, PTSD may be diagnosed where an in-
dividual “witnessed” or “experienced” a serious physical
threat to themselves or others and the person’s response
is characterized by “intense fear, helplessness, or horror.”
DSM-IV at 427-28. This is labeled criterion A. Id. at 427.
In addition, the person will display symptoms of “persis-
tent reexperiencing of the traumatic event.” Id. at 424.
Those symptoms include, among others, “psychological
distress” and “physiological reactivity,” and are listed
under criterion B. Id. at 428. A diagnosis of PTSD re-
quires that the individual meet the requirements of
criteria A and B, as well as other requirements under
criteria C, D, E, and F. Id. at 427-29.
The new rule applies where, among other things,
PTSD is alleged as the result of “fear of hostile military or
terrorist activity.” 38 C.F.R. § 3.304(f)(3). That phrase is
defined as involving a response characterized by “a psy-
chological or psycho-physiological state of fear, helpless-
ness, or horror.” Id.
Petitioners raise two problems with the formulation
in the new rule. First, Petitioners contend that that the
terms “psychological” and “physiological” are not contem-
plated under criterion A in DSM-IV and that therefore the
rule must fail. The regulation, though, merely merges the
elements of criterion A with those of criterion B, where
the terms do appear. Compare DSM-IV at 428 (“B. The
traumatic event is persistently reexperienced in one (or
more) of the following ways: . . . (4) intense psychological
distress at exposure to internal or external cues . . . . (5)
physiological reactivity on exposure to internal or exter-
nal cues . . . .”) with 38 C.F.R. § 3.304(f)(3) (“a psychologi-
cal or psycho-physiological state of fear, helplessness, or
horror.”). That drafting choice does not render the new
rule invalid.
13 NATIONAL ORG OF VETERANS ADV v. VA
Second, Petitioners contend that even if the com-
plained-of phrase is viewed as incorporating the elements
of criterion B, the regulation improperly restricts the
range of acceptable symptoms under criterion B. This
argument fails as well because the regulation does not
necessarily have to be read as restricting the available
symptoms of criterion B. In fact, the Secretary stated as
much in the final notice. 75 Fed. Reg. at 39,846 (“Because
the requirement that a claimed stressor relate to a vet-
eran’s fear of hostile military or terrorist activity has no
effect on the diagnostic criteria for PTSD, the requirement
does not narrow the DSM-IV definition of PTSD.”). Even
if the regulation were limiting, it would not be in conflict
with 38 C.F.R. § 4.125(a). That regulation requires a
diagnosis to conform to DSM-IV. A diagnosis of PTSD
under the narrower reading of the new rule will necessar-
ily conform to the broad requirements of DSM-IV. There-
fore, there is no conflict.
In summary, we have considered petitioners argu-
ments and find that no existing statute or regulation
specifically addresses the issue raised in the new rule so
as to create a conflict or contradiction.
B. The VA Rule Has a Rational Basis
Because Congress has not spoken directly to the issue
raised in the rule, we must determine whether the regula-
tion is otherwise permissible. Chevron, 467 U.S. at 843.
Additionally, under the APA this court must set aside a
regulation if we find it to be “arbitrary” or “capricious.” 5
U.S.C. § 706(2)(A). Although courts sometimes analyze a
regulation under both the second step of Chevron and the
APA independently, the issues raised will often overlap.
See Shays v. Fed. Election Comm’n, 414 F.3d 76, 96-97
(D.C. Cir. 2005); Animal Legal Def. Fund, Inc. v. Glick-
man, 204 F.3d 229, 234 (D.C. Cir. 2000). Where, as here,
NATIONAL ORG OF VETERANS ADV v. VA 14
a regulation will equally stand or fall under either review,
a single analysis is appropriate.
A regulation is not arbitrary or capricious if there is a
“rational connection between the facts found and the
choice made.” Motor Vehicle Mfrs. Ass’n. of the U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
This is a deferential standard of review. Regardless of
our views, we must uphold the regulation if there is a
rational basis for it on the record. Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)
(“It is not our task to determine what decision we, as
Commissioners, would have reached. Our only task is to
determine whether the Commission has considered the
relevant factors and articulated a rational connection
between the facts and the choice made.”).
At the heart of the Petitioners disagreement with the
new rule is the distinction between private practitioners
and VA associated practitioners. The VA provided rea-
sons for this distinction during the rulemaking, as de-
scribed above. Petitioners contend that these
justifications ring hollow and that no reasonable rationale
exists for the rule.
First, Petitioners contend that there is no reasonable
basis for the VA’s premise that VA practitioners are
better trained than private practitioners. If quality
assurance is the problem, Petitioners contend, the VA
should instead focus on whether a given practitioner is
qualified on an individual basis. Additionally, Petitioners
question why the special guidance materials used by the
VA cannot also be made available to all practitioners.
Second, Petitioners question why, if reviews of exami-
nations are deemed helpful, the VA cannot also review
private practitioners’ examinations. Petitioners also
15 NATIONAL ORG OF VETERANS ADV v. VA
question the vagueness of the VA’s claimed review proc-
ess.
Third, Petitioners argue that the Secretary cannot
rely on the VA’s access to the claims folder as a rational
basis for distinguishing between private and VA practi-
tioners. Petitioners note that there are other sources of
relevant information concerning the veteran for practitio-
ners to use in examinations. Petitioners point out that
the private practitioner also has access to the claims
folder through the veteran, who may request his own
folder.
Fourth, Petitioners disagree with the VA’s view that
the distinction between private and VA practitioners is
warranted due to allegedly increased consistency. Peti-
tioners note that VA practitioner performance of many
more PTSD examinations is a double-edged sword.
Rather than resulting in greater quality, the increased
number of examinations may, in fact, result in hastier,
less thorough examinations.
Petitioners argue that the VA simply cannot categori-
cally distinguish between VA and private practitioners.
This belief amounts only to a disagreement with the
administrative rulemaking process generally. It is well
accepted that administrative agencies may resolve gener-
ally applicable factual questions through rulemaking. See
Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 612 (1991)
(noting that agencies may “rely on rulemaking to resolve
certain issues of general applicability unless Congress
clearly expresses an intent to withhold that authority”);
see generally R. Pierce, Administrative Law Treatise
§§ 7.5, 10.5 (5th ed. 2010). That the underlying logic for
the rule “may not always be true” is not enough to render
the rule invalid. See Barnhart v. Thomas, 540 U.S. 20, 29
(2003). As the Supreme Court has noted: “To generalize
NATIONAL ORG OF VETERANS ADV v. VA 16
is to be imprecise. Virtually every legal (or other) rule has
imperfect applications in particular circumstances.” Id.
(emphasis in original).
To be sure, Petitioners have ably demonstrated areas
of weakness in the VA’s logic, in particular where the
object of the rule is to provide better services to veterans
with PTSD. Indeed, some of the VA’s logic, such as the
belief that a large number of examinations will increase
quality, could lead to the opposite conclusion. Addition-
ally, Petitioners have proposed alternative methods that
the VA could use to ensure that the examinations it
receives are of sufficient quality, such as by reviewing the
private practitioner’s examinations. Perhaps with the
development of data or with more experience on the
operation and effect of the new rule, for instance, on
quality of care and the incidents of veteran’s seeking care,
the VA could be convinced that these suggestions would
ultimately best serve veterans.
But “[w]hether or not we, if writing on a pristine page,
would have reached the same set of conclusions is not the
issue.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d
104, 111 (1st Cir. 1997). The question presented here is
whether there is a logical basis for the new rule, and we
determine that such a basis exists. This court’s review of
the Secretary’s rules is deferential, and a “reasoned”
analysis is not necessarily an “unassailable” one. Ass’n of
Pub. Safety Commc’ns Officials Int’l, Inc. v. Fed. Commc’n
Comm’n, 76 F.3d 395, 400 (D.C. Cir. 1996). We cannot
say that the VA’s rationale is without a logical basis, or is
otherwise arbitrary and capricious.
Based on the foregoing, we find that the new VA rule
is a permissible application of statute and is not in viola-
tion of law. We also find that Petitioners’ remaining
17 NATIONAL ORG OF VETERANS ADV v. VA
arguments are without merit. The petition is therefore
DENIED.