Public-domain · open source
OpenJurist

525 F.3d 1157

Docket No. 2007-7163.

Moran v. Peake

Federal Circuit Court of Appeals · decided 2008-05-02

Cited by 3 later decisions — most recently March 2016

2 federal appellate ·

2 counsel of record

Applies 26 U.S.C. § 2 · 38 U.S.C. § 1154 · 38 U.S.C. § 1710 · 38 U.S.C. § 7292

Relies on Glover v. West

Good law ✅— No negative treatment on recordhow we know

Decided 2008-05-02

View the full empirical analysis of this case →

¶1*1158Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

¶2J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief was David J. Barrans, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.

¶3Before LINN, DYK and MOORE, Circuit Judges.

¶4MOORE, Circuit Judge.

¶5David Moran (Moran) appeals the judgment of the United States Court of Appeals for Veterans Claims (Veterans Court), which affirmed an August 27, 2004 Board of Veterans’ Appeals (Board) decision denying his claim for service connection for post-traumatic stress disorder (PTSD). Moran v. Nicholson, No. 04-2458,—Vet-App-, 2007 WL 414326 (Vet.App. Jan. 3, 2007). We affirm.

¶6I. BACKGROUND

¶7Moran served in the U.S. Army from January 1969 to November 1970. Moran filed his initial claim for service connection for PTSD in 1994. The Veterans Affairs regional office denied Moran’s claim because of the absence of specific information concerning his personal or direct involvement in combat with the enemy. In 2004, after a lengthy procedural history, the Board denied Moran’s claim for service connection for PTSD based upon its finding that he did not serve in combat and that the occurrence of any in-service stres-sor supporting the current diagnosis of PTSD is not established by credible evidence. In a January 3, 2007 decision, the Veterans Court found that the Board’s finding that Moran did not engage in combat with the enemy was not clearly erroneous.1 Moran appealed.

¶8II. DISCUSSION

¶9We review interpretation of statutes by the Veterans Court de novo. Glover v. West, 185 F.3d 1328, 1331 (Fed.Cir.1999). Further, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(d)(2).

¶10At issue in this appeal is whether the Veterans Court properly interpreted the phrase “engaged in combat with the enemy” in 38 U.S.C. § 1154(b) to require con*1159sideration of the actual nature of a veteran’s individual service.2 Moran argues that evidence of service in a combat zone or mere consideration of the location of the veteran’s military unit establishes a prima facie showing of service in combat to trigger the evidentiary benefit of 38 U.S.C. § 1154(b).3 The government argues the plain meaning of the phrase “any veteran who engaged in combat with the enemy” requires that the veteran have taken part in a fight with a military adversary or hostile unit or force. We are not persuaded by Moran’s argument.

¶11Moran’s position would require this court to replace the words “engaged in combat with the enemy” in § 1154(b) with “in a combat zone.” However, Congress has demonstrated that when it chooses to provide benefits to those who serve in combat zones rather than limiting benefits to those who personally engage in combat, it directly does so. See '38 U.S.C. §§ 1710(e)(1)(D) (providing benefits to those who served “in a theater of combat operations”) and 1712A(a)(1)(B)(i)(I) (same); 26 U.S.C. §§ 2(a)(3)(B), 112(a)(1) and (b)(1), 692(a)(1), 2201(b)(1)(A) and (B) (providing benefits to those serving in “combat zone”). Thus, we hold the term “engaged in combat with the enemy” in § 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis.4 A showing of no more than service in a general “combat area” or “combat zone” is not sufficient to trigger the evidentiary benefit of § 1154(b).

¶12Accordingly, we affirm the judgment of the Veterans Court.

¶13AFFIRMED

¶14COSTS

¶15No costs.

/525/f3d/1157 · .json · Public domain