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Sean Kendall

VA PTSD regulation upheld


Posted on Jan 23, 2012

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 consideration 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, 38 C.F.R. § 3.304(f)(3), 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 for PTSD under either a VA examination or a private physician examination.
With a VA examination, if PTSD is diagnosed as consistent with fear of hostile enemy activity, then credible supporting evidence of the stressor is not required.  However, if a non-VA doctor diagnosis PTSD and it is not comfirmed by a VA doctor, then credible supporting evidence that the stressor occured must be provided.

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