SWAN: PETITION FOR RULEMAKING RE: PTSD/MST DENIED
/Service Women’s Action Network, VVA v. Sec’y of Veterans Affairs, 815 F.3d 1369 (Fed. Cir. Mar. 3, 2016)
HELD: VA's refusal to promulgate a rule that would ease a veteran's burden in establishing the occurrence of a PTSD/MST stressor event was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
SUMMARY: 38 C.F.R. § 3.304(f)(3) allows a veteran to establish with lay testimony the occurrence of a PTSD stressor event based on "fear of hostile military and terrorist activity." Under 38 C.F.R. § 3.304(f)(5), however, if the veteran's PTSD is based on military sexual trauma (MST), that veteran's lay testimony will not suffice to establish the occurrence of the traumatic event.
Petitioners requested VA to promulgate a new subsection of § 3.304 to allow a veteran to establish the occurrence of a PTSD/MST stressor event through his/her lay testimony alone as long as a psychiatrist or psychologist confirms that the stressor is adequate to support the diagnosis. VA denied the request.
The Federal Circuit determined that VA’s refusal to promulgate a new rule was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and was supported by “reasoned decisionmaking.”
