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Herbert v. McDonald

United States Court of Appeals, Federal Circuit

July 2, 2015

RALPH W. HERBERT, Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

Appeal from the United States Court of Appeals for Veterans Claims in No. 12-2680, Judge Robert N. Davis.

MATTHEW A. TRAUPMAN, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for claimant-appellant.

K. ELIZABETH WITWER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR; LARA EILHARDT, Y. KEN LEE, TRACEY PARKER WARREN, MEGHAN ALPHONSO, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before DYK, TARANTO, and HUGHES, Circuit Judges.

OPINION

Taranto, Circuit Judge.

Ralph Herbert filed a claim for disability benefits based on an assertion of disability caused by service-connected post-traumatic stress disorder (PTSD). The Board of Veterans' Appeals denied the claim, finding no service connection. The Court of Appeals for Veterans Claims affirmed the denial after determining that the Board, in an earlier stage of the proceeding, had not

Page 1365

erred by ordering an additional medical examination in connection with his claim. We affirm.

Background

Mr. Herbert is a veteran of the United States Navy. In late 2000, he filed with the Department of Veterans Affairs (VA) a claim for benefits for disability caused by PTSD, which he alleged was connected to an event during his service, namely, a typhoon that his ship, the USS Mount McKinley, encountered en route to Japan in January 1956. Ship logs and letters from two shipmates confirm that the USS Mount McKinley weathered a bad storm around that time.

Mr. Herbert underwent a VA medical examination in May 2002, but the examiner found no PTSD, and the VA's Seattle Regional Office then denied Mr. Herbert's benefits claim. Although Mr. Herbert timely filed a notice of disagreement, his hearing before the Board did not take place until February 2008. In the intervening years, Mr. Herbert underwent several more medical examinations. A January 2004 examination at the VA's Veterans Center and a July 2006 examination by a private psychologist both produced diagnoses of PTSD. Two other examinations--a May 2006 VA examination and an October 2007 examination conducted at the VA's behest--did not.

At the February 2008 hearing, Mr. Herbert testified about the typhoon, stating in particular that he saw people go overboard on a neighboring ship. Two months later, the Board denied Mr. Herbert's claim for service connection. It found Mr. Herbert not credible insofar as he testified to witnessing others go overboard, and it therefore concluded that it could not rely on medical opinions that credited his statements about others going overboard in arriving at a PTSD diagnosis.

Mr. Herbert appealed to the Veterans Court, which remanded his case to the Board in July 2009 pursuant to a joint request by Mr. Herbert and the VA. The parties requested remand for several reasons, including that it was unclear whether the October 2007 medical examiner had reviewed Mr. Herbert's earlier history and examinations, as evidenced by her inclusion of a factually incorrect statement about Mr. Herbert's disciplinary history. The parties specifically agreed that, " [u]pon remand, [Mr. Herbert] may submit additional evidence and argument on the questions at issue, and [the VA] may 'seek any other evidence the [VA] feels is necessary' to the timely resolution of [Mr. Herbert's] claim." J.A. 480 (quoting Fletcher v. Derwinski, 1 Vt.App. 394, 397 (1991)).

On remand, in February 2010, the Board determined that Mr. Herbert " must be scheduled for a VA psychiatric examination" and that " [t]he examiner must specifically opine whether the appellant has [PTSD] due solely to the fact that he survived a storm at sea in January 1956," J.A. 346, i.e., not based on a claim that he saw anyone going overboard. The Board remanded Mr. Herbert's case to the Regional Office for appropriate development. Mr. Herbert underwent the ordered VA examination on November 23, 2011. The examiner concluded that experiencing the typhoon in and of itself was an adequate stressor to ...


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