holding that “while section 105(a) establishes a presumption that the disease or injury incurred [or aggravated] during active duty is service-connected, the veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty”
How later courts described this case
- holding that “while section 105(a) establishes a presumption that the disease or injury incurred [or aggravated] during active duty is service-connected, the veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty”
- explaining that service connection—“a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—is required for disability benefits
- noting that to establish service connection, "the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"
- establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incur-rence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability
Written by the judges who cited it.
The opinion
PAULINE NEWMAN, Circuit Judge,
concurring in part, dissenting in part.
The panel majority correctly concludes that the Court of Appeals for Veterans Claims (CAVC) misconstrued 38 U.S.C. § 105 , and that the statute creates a presumption that a disability first manifested or aggravated during active duty is deemed service connected. However, I do not agree that the CAVC error in statutory interpretation and application was in this case “harmless,” for the record is not sufficiently developed nor the opinion below sufficiently detailed to know whether a different result might ensue on the correct statutory meaning and application.
The statutory construction that this court now adopts is neither the one advanced by the government nor the one proposed by Mr. Shedden. Thus neither side has identified evidence in the record supporting its position under our statutory construction. Since there appears to be evidence in the record relevant to the origin of Mr. Shedden’s psychiatric disorder, I would remand so that the evidence can be considered by the appropriate tribunal under the correct law.
The panel majority agrees with the CAVC’s conclusion that Mr. Shedden did not show that the correct interpretation of § 105 “would have been outcome determinative of the June 1994 BVA decision.” Maj. op. at 1167 (quoting Shedden v. Principi, No 01-1534, slip op. at 3 (Vet.App. Aug. 22, 2003)). The CAVC did not explain its reasoning, and may be factually incorrect. The statement is so conclusory that my colleagues in the majority have to speculate about what the CAVC had in mind.
To establish a service-connected disability, the veteran must show a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between them. The panel majority holds, and I agree, that any injury or illness incurred or aggravated while the veteran is serving on active duty is deemed to be service connected. Presumably, the CAVC ruled that an essential element of Mr. Shedden’s claim was missing; however, the CAVC would have had to find that Mr. Shedden does not now suffer from post-traumatic stress disorder, or that he was not injured or incurred illness while on active duty, or that the events in service and later are not causally related. The panel majority is not sure, stating, “We interpret [the court’s statement] to mean that the court agreed with the BVA on the other ground for rejecting Mr. Shedden’s section 105(a) argument, namely that there was no showing of a psychiatric condition incurred in active service that could give rise to the section 105(a) presumption.” The CAVC, however, did not make a finding concerning service events that could give rise to post-traumatic stress disorder, but apparently required that the disorder itself was manifested during the period of active service.
*1169 Mr. Shedden points out, and it is well-known, that post-traumatic stress disorder is not always manifested immediately upon the occurrence of the causal event. The panel majority’s requirement that there be “a psychiatric condition incurred in active service” does not also require that the manifestation thereof appeared immediately. The antecedent basis for post-traumatic stress disorder is an in-service trauma, nor an earlier psychiatric disorder. Delayed onset has been recognized by the courts. See, e.g., Moe v. United, States, 326 F.3d 1065, 1069 (9th Cir.2003) (post-traumatic stress disorder linked to shooting at workplace); Likes v. Callahan, 112 F.3d 189, 191 (5th Cir.1997) (“ ‘PTSD is an unstable condition that may not manifest itself until well after the stressful event which caused it, and may wax and wane after manifestation.’ ”) (quoting Jones v. Chater, 65 F.3d 102, 103 (8th Cir.1995)).
Mr. Shedden points to medical evidence in the record linking his current psychiatric difficulties with events from his military service, particularly with the gunshot wound he incurred in the line of duty. On the correct statutory construction, he must be permitted to establish this link. The panel majority’s holding that he must show not only a traumatic event but its psychiatric consequences manifested during service appears to be medically incorrect. This court should not establish a scientific/medical error as a matter of law.
The case should be remanded, for rede-termination under the correct interpretation of the statute.