Opinion

Irby v. Brown

  • 6 Vet. App. 132
  • 1994 U.S. Vet. App. LEXIS 2
  • 1994 WL 1975
Court
United States Court of Appeals for Veterans Claims
Filed
Jan 5, 1994
Status
Published
Author
Kramer
On the bench
Ivers, Kramer, Mankin
Cited by
5 cases
Authority
More cited than 13.1%

section 1154(b) cannot be applied to appellant’s PTSD claim until BVA first finds that appellant has engaged in combat

How later courts described this case

  • section 1154(b) cannot be applied to appellant’s PTSD claim until BVA first finds that appellant has engaged in combat
  • BVA’s failure to make preliminary finding regarding combat with the enemy was harmless error

Written by the judges who cited it.

The opinion

KRAMER, Judge,

dissenting:

The good news is that the majority opinion is extremely well written. The bad news, unfortunately, is that it is written about the wrong issue. Under the newly announced rule in Zarycki v. Brown, 6 Vet.App. 91, 100 (1993), a multi-pronged test must be applied to determine service-eonnectability for PTSD. The first prong of the test requires the BVA “to make a specific factual finding as to whether or not appellant was engaged in combat.” Id., at 100 . Under Karnas v. Derwinski, 1 Vet.App. 308 (1991), that rule must be applied in this ease. Incredibly, the majority attempts to sidestep Zarycki by circularly stating that the rule applies only where the Board has made a factual finding that a veteran has engaged in combat, and that, as the Board has not made any finding as to engagement in combat, Zarycki doesn’t apply because the Board has denied appellant’s claim. Even a minimal reading of Zarycki , however, requires the inescapable conclusion that the first prong of the test mandates a factual finding regarding engagement in combat. I dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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