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Gilpin v. West

September 11, 1998


Michel, Schall, and Gajarsa, Circuit Judges.

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

Appealed from: United States Court of Veterans Appeals Judge Donald L. Ivers United States Court of Appeals for the Federal Circuit


William D. Gilpin appeals the decision of the United States Court of Veterans Appeals in Gilpin v. Brown, Secretary of Veterans Affairs, No. 95-832 (Vet. App. May 21, 1997), which affirmed a May 3, 1995 decision of the Board of Veterans' Appeals ("Board"). Because we hold, under the principles of deference espoused in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that the Secretary of Veterans Affairs ("Secretary") permissibly interpreted 38 U.S.C. § 1110 to require "current symptomatology" at the time the claim is filed in order for a veteran to be entitled to compensation for a disability such as Post-Traumatic Stress Disorder ("PTSD") under that statute, we affirm the decision of the Court of Veterans Appeals.


No relevant facts are disputed. The facts of this case have been set out in detail in the Court of Veterans Appeals' decision and will be referred to in this opinion only to the extent necessary for an understanding of the issues that give rise to this appeal. Mr. Gilpin served on active duty in the U.S. Army from July 1965 until July 1968. Mr. Gilpin's separation examination was negative for PTSD. In January 1987, Mr. Gilpin filed a claim with the Veterans Administration ("VA") (now the Department of Veterans Affairs) for disability compensation for a "stress" disorder and other disabilities. In July 1987, the VA denied his claim for service-connection for his alleged disabilities, including PTSD. Mr. Gilpin appealed this denial to the Board, which affirmed the VA's decision.

In February 1991, the appellant requested a reopening of this claim for service-connection for PTSD. After considering this request, the VA found that no new and material evidence had been submitted to reopen the appellant's claim for service-connection for PTSD. The appellant then filed a Notice of Disagreement and additional evidence of PTSD. The VA again denied the appellant a reopening of his claim for PTSD. The Board ultimately affirmed the denial of entitlement, concluding that there was "no adequately supported diagnosis of PTSD of record," including no current diagnosis of PTSD.

The Court of Veterans Appeals determined that there was a plausible basis for the Board's finding of no valid diagnosis of PTSD. In denying Mr. Gilpin's claim, the court also stated that (a) 38 C.F.R. § 3.304(f) requires a current diagnosis of PTSD in order to qualify for service-connection benefits and (b) Mr. Gilpin did not have such a current diagnosis. Mr. Gilpin then timely filed this appeal, challenging only the validity of section 3.304(f) in light of 38 U.S.C. § 1110 and other provisions of the veterans' benefits scheme.


We review interpretations of statutes and regulations by the Court of Veterans Appeals de novo. See 38 U.S.C. § 7292(a), (c) (1994); Degmetich v. Brown, 104 F.3d 1328, 1331 (1997). As with any question of statutory interpretation, we begin with the language of the statute itself. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Section 1110 provides for compensation to veterans for "service connected" disease or injury. See 38 U.S.C. § 1110 (1994). It states, in relevant part:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled . . . compensation as provided in this subchapter . . . .

Id. Furthermore, 38 C.F.R. § 3.304(f) (1997) states that, to establish service-connection for PTSD, the veteran must demonstrate "current symptomatology" of his disability.

Mr. Gilpin argues that this regulation adds an additional burden to the statutory requirement. Mr. Gilpin reasons that the statute only requires that the veteran have a disability, not that the disability be symptomatic at the time service-connection is sought or awarded. Mr. Gilpin contends that such a requirement is not contemplated in the statute and therefore is invalid. As further support, Mr. Gilpin argues that requiring "current symptomatology" for entitlement incorrectly conflates the issue of degree of disability with the issue of entitlement to disability.

The government, relying on Degmetich, maintains that Congress intended provisions authorizing benefits for service-connected disability to apply only in cases involving disability on the date of application. The government further argues that without current symptomatology, the Department of Veterans Affairs would have no means for determining that the alleged disability is in fact service-connected. While acknowledging Mr. Gilpin's argument that certain disabilities are entitled to a "zero percent" rating under the Secretary's rating system, *fn1 the government argues that the practice of assigning ...

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