No. 98-1203
In the Supreme Court of the United States
OCTOBER TERM, 1998
WILLIAM D. GILPIN, PETITIONER
v.
TOGO D. WEST, SECRETARY OF VETERANS AFFAIRS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
DAVID M. COHEN
LUKE LEVASSEUR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a regulation of the Secretary of Veterans Affairs requiring "current
symptomatology" as a prerequisite to disability compensation for Post-Traumatic
Stress Disorder is per se unreasonable and not entitled to judicial deference
under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), on the ground that it does not resolve all interpretive
doubts in favor of the veteran.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1203
WILLIAM D. GILPIN, PETITIONER
v.
TOGO D. WEST, SECRETARY OF VETERANS AFFAIRS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-8) is reported at 155 F.3d
1353. The memorandum opinion of the United States Court of Veterans Appeals
(Pet. App. 9-20) is unreported.
JURISDICTION
The judgment of the court of appeals (Pet. App. 22) was entered on September
11, 1998. A petition for rehearing was denied on October 28, 1998 (Pet.
App. 21). The petition for a writ of certiorari was filed on January 26,
1999. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Section 1110 of Title 38 of the United States Code provides for compensation
to veterans "[f]or disability resulting from personal injury suffered
or disease contracted in line of duty * * * during a period of war."
Veterans requesting compensation under that Section for claims of service-related
Post-Traumatic Stress Disorder (PTSD) must present "medical evidence
establishing a clear diagnosis of the condition, credible supporting evidence
that the claimed inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the claimed inservice
stressor." 38 C.F.R. 3.304(f).
2. Petitioner served in the United States Army from July 1965 to July 1968.
Pet. App. 2, 9. Service personnel records show that for some of that time
(October 1966 to November 1967) petitioner served as a construction machine
operator in the Republic of Vietnam. Id. at 9-10. Petitioner's separation
examination was negative for PTSD. Id. at 2, 10.
In January 1987, petitioner submitted a claim to the Department of Veterans
Affairs (VA) seeking disability compensation for, among other things, "Vietnam
stress." Pet. App. 2, 10. Petitioner underwent a complete psychiatric
examination on March 5, 1987. Id. at 11. The examining physician noted "Doubt
Post Traumatic Stress Disorder." Ibid. In July 1987, the VA denied
petitioner's claim for disability compensation for PTSD. Id. at 2, 11. Petitioner's
appeal of that denial was affirmed by the Board of Veterans' Appeals (BVA).
Ibid.
3. In February 1991, petitioner asked the VA to re-evaluate his PTSD claim.
Pet. App. 12. The VA reviewed petitioner's medical and psychological records
and concluded that no new and material evidence had been submitted that
justified reopening the claim. Id. at 2, 12. Petitioner filed a Notice of
Disagreement in March 1992. Id. at 2. In October 1992, petitioner submitted
to the VA a copy of a Social Security Administration (SSA) determination,
which had become effective October 1, 1988, finding that petitioner was
totally disabled due to severe depression with PTSD. Id. at 12-13. In response,
the VA obtained copies of the evidence upon which the SSA relied in making
its PTSD finding, and petitioner was examined by two more VA psychiatrists.
Id. at 2, 12-13. Although each examining physician diagnosed petitioner
with, among other things, "major depression," each also found
that a diagnosis of PTSD was not warranted. Id. at 13-14. Based on this
evidence, in April 1993 the VA again refused to reopen petitioner's PTSD
claim. Id. at 14.
Petitioner appealed again to the BVA, and in May 1995 the BVA, after reviewing
the evidence relating to the PTSD claim, again determined that it had been
properly denied. Pet. App. 2, 14. Specifically, the BVA concluded that there
was "'no adequately supported diagnosis of PTSD of record,' including
no current diagnosis of PTSD." Id. at 2 (court of appeals quoting BVA
opinion). The BVA acknowledged the SSA's finding of PTSD, but gave greater
weight to the medical conclusions of the two more recent VA psychiatric
examinations which, while noting that petitioner had some psychiatric disorders,
explicitly rejected a diagnosis of PTSD. Id. at 19.
4. Petitioner timely appealed the BVA's decision to the Court of Veterans
Appeals (CVA). In May 1997, that court also rejected petitioner's PTSD claim.
The CVA noted that the Secretary's regulation setting forth the standard
for evaluating claims of PTSD requires "medical evidence establishing
a clear diagnosis of the condition, credible supporting evidence that the
claimed inservice stressor actually occurred, and a link, established by
medical evidence, between current symptomatology and the claimed inservice
stressor." 38 C.F.R. 3.304(f), quoted in full at Pet. App. 18. The
CVA interpreted this regulation to require "a current, clear medical
diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology
* * *)." Pet. App. 18-19. The CVA found that "the [BVA]'s determination
that there is no valid PTSD diagnosis has a plausible basis in the record"
(id. at 19) and that the BVA "provided adequate reasons for bases for
its findings." Id. at 19-20. Thus, the CVA concluded, the BVA correctly
determined that petitioner did not have PTSD. Id. at 20.
5. Petitioner then appealed to the United States Court of Appeals for the
Federal Circuit, which affirmed the CVA's decision. Petitioner argued that,
by requiring evidence of "current symptomatology" in 38 C.F.R.
3.304(f), the VA impermissibly had imposed a requirement that was not contemplated
in 38 U.S.C. 1110, the statute which 38 C.F.R. 3.304(f) implements. Pet.
App. 3. The court of appeals began its analysis by pointing out that Section
1110 "is not plain on its face," that it "does not clearly
* * * say whether past disabilities support an award of compensation,"
and, consequently, that "all that can be fairly said about the statute
is that it is silent on the matter of when the disabled veteran must be
disabled." Pet. App. 5. The legislative history of Section 1110, the
court noted, was silent on that matter as well. Ibid. The court then stated
that, "[u]nder these circumstances," the question before it was
whether the VA had filled the statutory "gap" in a "rational
and permissible" manner with 38 C.F.R. 3.304(f)'s "current symptomatology"
requirement. See Pet. App. 5-6 (discussing Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984)).
The Federal Circuit upheld the regulation as a permissible interpretation
of the statute. The court pointed out that the "current symptomatology"
requirement is indistinguishable from the "current disability"
requirement that the court previously had upheld as a permissible interpretation
of 38 U.S.C. 1131, a statute "which is identical in all respects to
section 1110 but covers disability from injury or disease incurred in 'other
than a period of war.'" Pet. App. 6 (discussing Degmetich v. Brown,
104 F.3d 1328, 1332 (Fed. Cir. 1997)). Like the "current disability"
requirement, the court explained, the "current symptomatology"
requirement "is supportable when viewed in the context of the other
statutes involving the provision of veterans' benefits." Id. at 7.
The court stated that many of those statutes make clear that compensation
can only "be given for disability existing on or after the date"
on which the application for benefits is filed. Ibid.; see 38 U.S.C. 5110(a),
5111(a). The court also explained that the "current symptomatology"
requirement is consistent with veterans benefit statutes governing non-monetary
benefits, such as medical benefits, many of which are "limited to those
veterans who have a service-connected disability at the time of application."
Pet. App. 7; see 38 U.S.C. 1710 (1994 & Supp. III 1997); 38 U.S.C. 1712
(Supp. III 1997). The court concluded that, "[g]iven the structure
of the law as a whole, the Secretary's interpretation of 38 U.S.C. §
1110 as requiring demonstration of symptoms at the time the application
is filed * * * is not impermissible." Pet. App. 7 (internal quotation
marks omitted).
ARGUMENT
Petitioner contends that, under Brown v. Gardner, 513 U.S. 115 (1994), any
regulation that resolves interpretative doubts adversely to a veteran is
per se unreasonable and not entitled to deference under Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and that
consequently the Federal Circuit should not have deferred to the "current
symptomatology" requirement of 38 C.F.R. 3.304(f). Pet. App. 5-6. Petitioner's
contention is without merit, for neither Gardner nor its antecedents create
a special rule for the application of Chevron in the veterans benefit context.
The decision of the court of appeals is correct and does not conflict with
any decision of this Court. Accordingly, further review of this case is
not warranted.
1. "Judicial deference to reasonable interpretations by an agency of
a statute that it administers is a dominant, well-settled principle of federal
law." National R.R. Passenger Corp. v. Boston & Maine Corp., 503
U.S. 407, 417 (1992). We are aware of no broad exceptions or differing applications,
such as petitioner urges, to the rule that "if the statute is silent
or ambiguous with respect to the specific issue, the question for the court
is whether the agency's answer is based on a permissible construction of
the statute." Ibid. (quoting Chevron, 467 U.S. at 843).
Petitioner errs in claiming that Gardner requires a different rule of deference
in the context of VA interpretations of veterans benefit statutes. In Gardner,
this Court held that 38 C.F.R. 3.358(c)(3)'s requirement that the veteran
demonstrate "fault on the part of the VA" in order to obtain certain
benefits was inconsistent with the plain language of the statute it implemented,
38 U.S.C. 1151. 513 U.S. at 117-120. As petitioner points out (Pet. 6),
in doing so, the Court noted that, in interpreting veterans benefit statutes,
ambiguities are resolved "after applying the rule that interpretive
doubt is to be resolved in the veteran's favor." Gardner, 513 U.S.
at 118 (citing King v. St. Vincent's Hosp., 502 U.S. 215, 220-221 n.9 (1991)).
Seizing upon this statement, petitioner construes Gardner as a mandate that
all VA regulations must be written to favor veterans by providing them with
benefits in every conceivable circumstance under the statutes. Pet. 6-7.
Nothing in Gardner indicates that the Court intended to create a "no-deference"
rule, under which any VA gap-filling regulation that arguably operates to
"den[y] benefits" to a claimant under a veterans benefit statute
"is unreasonable." Pet. 7. Gardner was not even decided upon the
basis of deference. Because the Court found that the text of the statute
was clear, the reasonableness of the VA's construction was irrelevant. Gardner,
513 U.S. at 120; see Chevron, 467 U.S. at 842 (when the text of the statute
gives a clear answer, that is "the end of the matter").
The language upon which petitioner relies accurately noted the long-held
understanding that veterans benefit statutes should be liberally construed
in accordance with their remedial purpose. See King v. St. Vincent's Hosp.,
502 U.S. 215, 221 (1991) (discussing the "canon that provisions for
benefits to members of the Armed Services are to be construed in the beneficiaries'
favor"); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.
275, 285 (1946) (Act "is to be liberally construed for the benefit
of those who left private life to serve their country in its hour of great
need"); Boone v. Lightner, 319 U.S. 561, 575 (1943) (Act "is always
to be liberally construed to protect those who have been obliged to drop
their own affairs to take up the burdens of the nation"). This simply
means that, in promulgating and applying regulations-indeed, in fulfilling
its mission-the VA should interpret veterans benefit statutes in the context
of the broad scope of the government's intentions toward veterans. See Bailey
v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J., concurring in
the judgment) ("This entire scheme is imbued with special beneficence
from a grateful sovereign."). It does not mean, however, that a regulation,
no matter how well-advised and consistent with the statutory scheme, is
per se unreasonable whenever it precludes any claim for benefits, no matter
how tenuous, that a veteran might arguably make under a statute. Nor does
it disturb the fundamental principle that deference must be given to the
governmental entity that administers the statute simply because, in a specific
case, a regulation operates to preclude a claim. Indeed, the Federal Circuit
has consistently and correctly applied that principle in the veterans benefit
context. See, e.g., Hodge v. West, 155 F.3d 1356, 1360-1362 (Fed. Cir. 1998);
Smith v. Brown, 35 F.3d 1516, 1526-1527 (Fed. Cir. 1994); Prenzler v. Derwinski,
928 F.2d 392, 393 (Fed. Cir. 1991). It did not err in doing so here.
2. There can be no doubt that the VA properly interpreted the statutory
scheme when it required "current symptomatology" pursuant to 38
C.F.R. 3.304(f) in order for a veteran to receive disability benefits for
PTSD. As the Federal Circuit rightly explained, the VA's requirement is
consistent with statutory provisions stating that no monetary benefits can
be paid to veterans to compensate them for periods of time prior to the
filing of an application. See, e.g., 38 U.S.C. 5110(a), 5111(a). Likewise,
it is also consistent with statutory limitations allowing the provision
of non-monetary benefits to claimants who have a service-connected disability
only if the disability exists at the time the application is filed. See,
e.g., 38 U.S.C. 1710 (1994 & Supp. III 1997); 38 U.S.C. 1712 (Supp.
III 1997). The statutory scheme does not contemplate the provision of benefits
to claimants for problems that may have manifested themselves in the past
(that is, prior to the filing of an application) but can no longer be shown
to affect the claimants. The VA's interpretation of Section 1110 in 38 C.F.R.
3.304(f) for benefits related to PTSD accords well with this statutory scheme.
The interpretation also accords well with common sense. Many veterans experience
in-service stressors during their war-time duty. Not all veterans who experience
such stressors develop PTSD. The only way to distinguish a PTSD sufferer,
or someone who had an in-service stressor that caused him to develop full-blown
PTSD, from a veteran who simply experienced an in-service stressor is to
require a diagnosis of current PTSD symptoms to determine whether the veteran
in fact has PTSD. In this case, the record shows that repeated psychiatric
examinations of petitioner revealed that he did not suffer from PTSD. Pet.
App. 2, 19. Because the record shows only that petitioner suffered an in-service
stressor, and not that he had symptoms warranting a diagnosis of PTSD, the
VA's regulations properly exclude him from the class of persons who may
receive disability benefits for PTSD. Ibid.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
DAVID M. COHEN
LUKE LEVASSEUR
Attorneys
APRIL 1999