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Arzio v. Shinseki

April 19, 2010

MICHAEL ARZIO, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in 07-1844, Judge Robert N. Davis.

The opinion of the court was delivered by: Mayer, Circuit Judge.

Before MAYER, CLEVENGER, and MOORE, Circuit Judges.

Michael Arzio appeals the judgment of the United States Court of Appeals for Veterans Claims ("Veterans Court") which affirmed a decision of the Board of Veterans' Appeals denying his claim for disability compensation for post-traumatic stress disorder ("PTSD"). See Arzio v. Shinseki, No. 07-1844, 2009 U.S. App. Vet. Claims LEXIS 438(Vet. App. Mar. 25, 2009). We affirm.

BACKGROUND

Arzio served in the United States Army from October 1959 to April 1960 and in the United States Navy from August 1960 to June 1962. He did not participate in combat.

In December 1960, Arzio reported to sick bay complaining of pain in his right foot. The examiner found no abnormalities on examination and recorded a clinical impression of "psychoneurosis." Arzio was subsequently seen for an orthopedic evaluation of reported pain in his right leg. The examiner noted that he seemed "very anxious and apprehensive," and stated that he believed Arzio had "a type of conversion reaction [and] possibly needs psychiatric eval[uation] since his symptoms seem . . . to be out of proportion to any organic difficulties he is having." Subsequent examiners reported that Arzio seemed "quite nervous," and that his claims of chest pain likely had a "psychogenic origin." A January 1962 medical report indicated that his asserted gastrointestinal pain was likely a "psychophysical reaction." When Arzio was discharged from the Navy in June 1962, however, he was evaluated as psychiatrically normal.

Twenty-eight years later, in September 1990, Arzio filed a claim seeking disability compensation for PTSD. A Department of Veterans Affairs Regional Office ("RO") denied his claim, concluding that he had failed to establish that his PTSD was incurred in, or aggravated by, his military service. In January 2001, however, the board reopened the claim, concluding that Arzio had presented new and material evidence, including "a substantial quantity of medical documentation from private and [Veterans Administration] physicians relating to [Arzio's] ongoing care for psychiatric problems including PTSD." See 38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."). On remand, the RO acknowledged that Arzio was receiving treatment for PTSD and other psychiatric problems, but denied his claim for service-connected benefits on the ground that Arzio "ha[d] not provided any specific information that could be used to verify" his claimed in-service stressors. The board affirmed, concluding that "[t]he contemporaneous military evidence does not corroborate the veteran's claim that he engaged in combat with an enemy and shows that the veteran's claims of in-service stressors are not creditable."

In January 2004, the Veterans Court granted the parties' joint motion to vacate the board's decision and remanded the case for further development. On remand, the board again determined that Arzio had failed to show that he suffered from a verified stressor during his military service and that he was therefore not entitled to disability compensation for PTSD.

Arzio then appealed to the Veterans Court. He did not contest the board's determination that he had failed to produce credible evidence of an in-service stressor, but argued that service connection for PTSD could be established, pursuant to 38 C.F.R. § 3.303, without evidence that any in-service stressor occurred. The Veterans Court, however, rejected this argument, concluding that a veteran cannot establish entitlement to service connection for PTSD without meeting the requirements of 38 C.F.R. § 3.304(f), including credible evidence of an in-service stressor.

DISCUSSION

In reviewing a judgment of the Veterans Court, this court is vested with jurisdiction to "decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). We conduct a de novo review of the court's legal determinations. See Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006); Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002).

Arzio challenges the Veterans Court's interpretation of 38 C.F.R. § 3.303 and 38 C.F.R. § 3.304(f). He contends that the court erroneously concluded that the general requirements for service connection contained in section 3.303 are subordinate to the specific requirements for establishing service connection for PTSD contained in section 3.304(f). In essence, Arzio argues that sections 3.303 and 3.304(f) provide alternative methods by which a veteran may obtain service-connected benefits for PTSD.

We find this argument unpersuasive. The plain language of section 3.304(f) mandates that a veteran provide credible supporting evidence of an in-service stressor in order to establish service connection for PTSD. It provides:

Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with ยง 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible ...


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