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Hailey v. West

U.S. Court of Appeals, Federal Circuit


February 18, 1999

GARRY L. HAILEY, CLAIMANT-APPELLANT,
v.
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.

Before Plager, Circuit Judge, Skelton, Senior Circuit Judge, and Gajarsa, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

DECISION

Garry L. Hailey appeals the April 21, 1998, order of the United States Court of Veterans Appeals, Docket No. 96-1263, affirming the Board of Veterans Appeals (Board) decision, denying service connection for post-traumatic stress disorder (PTSD). We have jurisdiction under 38 U.S.C. § 7292(c) (1994). Because the appellant did not challenge the validity of the regulation at issue in the Court of Veterans Appeals, we affirm.

BACKGROUND

In July 1992, Mr. Hailey requested service connection for PTSD resulting from his traumatic experiences aboard the U.S.S. LUCE during Hurricane Alma. Mr. Hailey claimed the storm was so fierce he feared that the ship would sink and that all aboard would drown. He also stated that at times huge waves were crashing over the stacks of the ship and that out of fear he hid in the captain's personal lifeboat for three days. Mr. Hailey maintains that these in-service stressors caused his PTSD.

Generally, the types of evidence to be considered in determining whether a veteran is entitled to service connection of disabilities are described at 38 U.S.C. § 1154(a) (1994).

The Secretary of Veterans Affairs has the general authority to prescribe rules and regulations with respect to the nature and extent of proof and evidence necessary to establish the right to benefits. See 38 U.S.C. § 501(a)(1) (1994). Pursuant to this authority, the Secretary promulgated a regulation requiring corroborating evidence as to the existence of the claimed stressors in the case of PTSD. See 38 C.F.R. § 3.304(f) (1993).

The Board denied Mr. Hailey's claim for service connection for PTSD holding that Mr. Hailey's account of his stressors had not been corroborated by any other evidence. The Board determined that the relevant reports, deck logs, and newspaper articles did not establish that the U.S.S. LUCE actually encountered severe weather conditions as described by Mr. Hailey. The Court of Veterans Appeals affirmed. Mr. Hailey now argues, for the first time on appeal, that the regulation requiring corroboration of the existence of the claimed in-service stressors is inconsistent with the statutory mandate of 38 U.S.C. § 1154(a) and is thus invalid.

DISCUSSION

Mr. Hailey's challenge to the validity of the regulation is a proper appeal pursuant to our statutory jurisdiction. See 38 U.S.C. § 7292(c). However, it is well established that Mr. Hailey is precluded from raising an issue in this court which could have been raised below but was not. See Cecil v. Department of Transp., FAA, 767 F.2d 892, 894 (Fed. Cir. 1985); Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1102 (Fed. Cir. 1985); Lizut v. Department of the Army, 717 F.2d 1391, 1396 (Fed. Cir. 1983).

Mr. Hailey argues that the issue of validity of the regulation was challenged in the Court of Veterans Appeals in that it was recognized by the Court of Veterans Appeals that the issue of stressor corroboration was adequately raised and that it controlled the Disposition of the appeal below. However, Mr. Hailey did not challenge the validity of the regulation, rather he challenged only the sufficiency of the evidence required by the regulation. The validity of the regulation was never before the Board or the Court of Veterans Appeals. Further, there is no evidence before us to indicate that the regulation could not have been challenged there.

For these reasons, Mr. Hailey's challenge to the validity of 38 C.F.R. § 3.304(f) was not properly raised in the Court of Veterans Appeals and, therefore, we do not address it for the first time on appeal. We therefore affirm the ruling of the Court of Veterans Appeals.

19990218


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