  United States Court of Appeals
      for the Federal Circuit
                ______________________

         ROBERTO SANCHEZ-NAVARRO,
              Claimant-Appellant,

                          v.

             ROBERT A. MCDONALD,
           Secretary of Veterans Affairs,
                Respondent-Appellee.
               ______________________

                      2014-7039
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1645, Judge William A. Moor-
man.
               ______________________

              Decided: December 24, 2014
               ______________________

    DEANNE L. BONNER SIMPSON, Bonner Di Salvo, PLLC,
of Detroit, Michigan, argued for claimant-appellant.

    JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and SCOTT D. AUSTIN, Assistant Director. Of
2                          SANCHEZ-NAVARRO   v. MCDONALD




counsel on the brief were Y. KEN LEE, Deputy Assistant
General Counsel, and LARA K. EILHARDT, Staff Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
                ______________________

    Before LOURIE, SCHALL, and DYK, Circuit Judges.

    Opinion for the court filed by Circuit Judge DYK.

    Dissenting opinion filed by Circuit Judge LOURIE.

DYK, Circuit Judge.

    Roberto Sanchez-Navarro appeals from the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his claim for service connec-
tion for post-traumatic stress disorder (“PTSD”). We
vacate and remand.

                      BACKGROUND

    Sanchez-Navarro served in the United States Army
from May 1958 until March 1960, and he was stationed in
Korea from November 10, 1958, until November 16, 1959.
Sanchez-Navarro is not a combat veteran, but he served
near the demilitarized zone in Korea after the Korean
War. In September 2005, Sanchez-Navarro filed a claim
for service connection for PTSD. In order to succeed on
his claim, Sanchez-Navarro was required to establish (1)
“medical evidence diagnosing the condition in accordance
with [38 C.F.R. § 4.125(a)]”; (2) “a link, established by
medical evidence, between current symptoms and an in-
service stressor”; and (3) “credible supporting evidence
that the claimed in-service stressor occurred.” 38 C.F.R.
§ 3.304(f). There is no dispute that Sanchez-Navarro
suffers from PTSD. Sanchez-Navarro argued that the
SANCHEZ-NAVARRO    v. MCDONALD                               3




third requirement was satisfied based on his lay testimo-
ny as to three alleged stressors: (1) hearing shots and
seeing two injured American soldiers on the day he left
Korea; (2) exposure to wounded soldiers in medical facili-
ties while receiving treatment for ear infections; and (3)
hearing strange noises while on guard duty at night
during his first week of service in Korea.

    The Board of Veterans’ Appeals (“Board”) denied
Sanchez-Navarro’s claim in a June 18, 2008, decision.
While Sanchez-Navarro’s appeal to the Veterans Court
was pending, the VA amended 38 C.F.R. § 3.304(f) with
respect to the evidence required to establish the occur-
rence of claimed in-service stressors for PTSD claims.
Revised § 3.304(f) provides, in relevant part:

    If a stressor claimed by a veteran is related to the
    veteran’s fear of hostile military or terrorist activ-
    ity and a VA psychiatrist or psychologist, or a psy-
    chiatrist or psychologist with whom the VA has
    contracted, confirms that the claimed stressor is
    adequate to support a diagnosis of posttraumatic
    stress disorder and that the veteran’s symptoms
    are related to the claimed stressor, in the absence
    of clear and convincing evidence to the contrary,
    and provided the claimed stressor is consistent
    with the places, types, and circumstances of the
    veteran’s service, the veteran’s lay testimony
    alone may establish the occurrence of the claimed
    in-service stressor.

38 C.F.R. § 3.304(f)(3).

    The Veterans Court vacated and remanded for the
Board to determine whether Sanchez-Navarro’s claim fell
within the scope of the revised § 3.304(f). On remand, the
Board found that revised § 3.304(f) did not apply to
4                            SANCHEZ-NAVARRO    v. MCDONALD




Sanchez-Navarro’s claim because he had been diagnosed
by a therapist, as opposed to a “VA psychiatrist or psy-
chologist, or a psychiatrist or psychologist with whom VA
has contracted.” § 3.304(f)(3). The Board found that
Sanchez-Navarro was not entitled to a medical examina-
tion by a VA psychiatrist or psychologist because “none of
his claimed stressor events have been sufficiently corrobo-
rated by credible supporting evidence and his account of
having a continuity of PTSD symptomatology since ser-
vice is not deemed credible.” Respondent-Appellee’s App.
33. The Veterans Court affirmed. Sanchez-Navarro v.
Shinseki, No. 12-1645, 2013 WL 5496825, at *7 (Oct. 4,
2013). The Veterans Court found that the duty-to-assist
statute, 38 U.S.C. § 5103A, did not require the VA to
provide Sanchez-Navarro with a medical exam by a VA
psychiatrist or psychologist “because the evidence of in-
service stressor events was insufficient.” Respondent-
Appellee’s App. 15. Sanchez-Navarro appeals. We have
jurisdiction pursuant to 38 U.S.C. § 7292(a).

                        DISCUSSION

    Our review of a decision by the Veterans Court is lim-
ited by statute. We review legal determinations of the
Veterans Court de novo, but we lack jurisdiction over a
challenge to a “factual determination” or “law or regula-
tion as applied to the facts.” 38 U.S.C. § 7272(d)(2);
Joyner v. McDonald, 766 F.3d 1393, 1394 (Fed. Cir. 2014).

    Sanchez-Navarro argues that his claim falls under 38
C.F.R. § 3.304(f)(3) because his claimed stressors are
“related to the veteran’s fear of hostile military or terror-
ist activity.” 38 C.F.R. § 3.304(f)(3). He argues that
under such circumstances, the VA is obligated to provide
a medical examination by a psychiatrist or psychologist
because it is “necessary to make a decision on the claim,”
38 U.S.C. § 5103A(d)(1). This is so, he reasons, because
SANCHEZ-NAVARRO   v. MCDONALD                             5




§ 3.304(f)(3) provides that his lay testimony would be
adequate to establish the existence of a stressor if a “VA
psychiatrist or psychologist . . . confirms that the claimed
stressor is adequate to support a diagnosis of posttrau-
matic stress disorder and that the veteran’s symptoms are
related to the claimed stressor, in the absence of clear and
convincing evidence to the contrary.”             38 C.F.R.
§ 3.304(f)(3) (emphasis added).

    At oral argument, the government agreed with
Sanchez-Navarro’s interpretation of § 3.304(f)(3), subject
to one important qualification. The government argued
that a VA medical examination is only “necessary,” 38
U.S.C. § 5103A(d)(1), if “the claimed stressor is consistent
with the places, types, and circumstances of the veteran’s
service,” 38 C.F.R. § 3.304(f)(3) (hereinafter, “the provi-
so”). Thus, according to the government, the veteran
must satisfy the proviso before the VA is obligated to
provide the veteran with a VA medical exam. Sanchez-
Navarro argued that a VA medical exam is necessary to
address the claim in the first place, including the proviso.

    Here, we need not decide whether we must to defer to
an agency’s interpretation of a regulation that is offered
for the first time at oral argument. 1 We need not reach


   1   See Cathedral Candle Co. v. U.S. Int’l Trade
Comm’n, 400 F.3d 1352, 1363 (Fed. Cir. 2005) (deferring
to an agency’s interpretation of its own regulation “even
when that interpretation is offered in the very litigation
in which the argument in favor of deference is made”
(citing Auer v. Robbins, 519 U.S. 452, 461–62 (1997))); see
also Am. Signature, Inc. v. United States, 598 F.3d 816,
827 (Fed. Cir. 2010) (deference depends upon whether the
agency is “advancing its litigating position”); Reizenstein
v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009) (“In
6                            SANCHEZ-NAVARRO    v. MCDONALD




the deference issue because we conclude that the regula-
tion is clear on its face, and the VA’s interpretation is
supported by prior statements accompanying the publica-
tion of the regulation.

    As Sanchez-Navarro argues, a medical examination
by a VA psychiatrist or psychologist may be “necessary,”
38 U.S.C. § 5103A(d)(1), if the veteran is to receive the
benefits of § 3.304(f)(3). However, on the face of the
regulation, a VA medical examination is not necessary to
address the proviso.      Contrary to Sanchez-Navarro’s
interpretation, the regulation specifically states that the
VA psychiatrist or psychologist addresses (1) whether “the
claimed stressor is adequate to support” a diagnosis of
PTSD; and (2) whether the veteran’s symptoms are relat-
ed to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In
contrast, the proviso deals with historical facts—whether
“the claimed stressor is consistent with the places, types,
and circumstances of the veteran’s service”—used to
determine whether the stressor actually occurred. Id.
The proviso is not directed to the VA psychiatrist or
psychologist.

    This interpretation is also consistent with the VA’s
statement accompanying the regulation that “VA adjudi-


cases in which the agency offers its interpretation for the
first time in its briefs during litigation, the agency is
entitled to deference so long as there is ‘no reason to
suspect that the interpretation does not reflect the agen-
cy’s fair and considered judgment on the matter in ques-
tion.’” (quoting Auer, 519 U.S. at 462)); Gose v. U.S. Postal
Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“[T]he interpre-
tation must truly be one that had been applied by the
agency, either prior to or, at the latest, during the exer-
cise of its administrative powers in the present matter.”).
SANCHEZ-NAVARRO   v. MCDONALD                              7




cators, not examining psychiatrists and psychologists, will
decide whether the claimed stressor is consistent with the
veteran’s service.” 75 Fed. Reg. 39843, 39844 (July 13,
2010) (Final Rule). The VA’s construction is correct:
Sanchez-Navarro is only entitled to a VA medical exami-
nation if his claimed stressor “is consistent with the
places, types, and circumstances” of his service. 38 C.F.R.
§ 3.304(f)(3). If that proviso is met, the VA is obligated to
provide him with a VA medical examination because such
an examination would be “necessary to make a decision
on the claim.” 38 U.S.C. § 5103A(d)(1).

    The Veterans Court’s decision did not address the
proviso, but instead affirmed the Board’s determination
that Sanchez-Navarro’s testimony was not “credible” and
therefore found that “the evidence of in-service stressor
events was insufficient.” Respondent-Appellee’s App. 15.
In other words, the Veterans Court appears to have
applied the criteria of the introductory paragraph of 38
C.F.R. § 3.304(f), which requires “credible supporting
evidence that the claimed in-service stressor occurred.”
38 C.F.R. § 3.304(f). But § 3.304(f)(3) applies a more
relaxed standard. Under § 3.304(f)(3), the veteran’s lay
testimony as to the existence of the stressor is adequate if
three conditions are satisfied: (1) a VA psychiatrist or
psychologist “confirms that the claimed stressor is ade-
quate to support a diagnosis of posttraumatic stress
disorder and that the veteran’s symptoms are related to
the claimed stressor”; (2) the VA psychiatrist or psycholo-
gist’s findings are not contradicted by “clear and convinc-
ing evidence”; and (3) “the claimed stressor is consistent
with the places, types, and circumstances of the veteran’s
service.” Id. § 3.304(f)(3). Here, the Board and the Veter-
ans Court considered this case under the introductory
paragraph of § 3.304(f) rather than under § 3.304(f)(3)
and simply determined that the veteran’s lay testimony
was not “credible.” Id. § 3.304(f).
8                            SANCHEZ-NAVARRO   v. MCDONALD




    A remand is therefore necessary. On remand, the
Veterans Court should determine whether Sanchez-
Navarro’s “claimed stressor[s are] consistent with the
places, types, and circumstances of the veteran’s service.”
38 C.F.R. § 3.304(f)(3). If so, then Sanchez-Navarro is
entitled to a medical examination by a VA psychiatrist or
psychologist. If the VA psychiatrist or psychologist con-
cludes that “the claimed stressor is adequate to support a
diagnosis of posttraumatic stress disorder and that the
veteran’s symptoms are related to the claimed stressor,”
the Board must determine whether the government has
established “clear and convincing evidence to the contra-
ry.” Id. In the absence of such clear and convincing
evidence to the contrary, the veteran’s lay testimony alone
is sufficient to establish the occurrence of the claimed in-
service stressor.

             VACATED AND REMANDED

                          COSTS

    Costs to appellant.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

          ROBERTO SANCHEZ-NAVARRO,
               Claimant-Appellant,

                            v.

              ROBERT A. MCDONALD,
            Secretary of Veterans Affairs,
                 Respondent-Appellee.
                ______________________

                       2014-7039
                 ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1645, Judge William A. Moor-
man.
               ______________________

LOURIE, Circuit Judge, dissenting.

    I respectfully dissent from the majority’s decision to
vacate and remand the decision of the Veterans Court,
which affirmed the Board’s finding that Sanchez-Navarro
was not entitled to a VA medical exam under 38 U.S.C.
§ 5103A(d) and thus could not bring a claim for post-
traumatic stress disorder under 38 C.F.R. § 3.304(f).

    I believe that the majority erred in two respects.
First, the majority failed to follow 38 U.S.C. § 5103A(d)
when interpreting 38 C.F.R. § 3.304(f)(3). The statute
2                               SANCHEZ-NAVARRO     v. MCDONALD




provides, in relevant part, that the Secretary “shall . . .
provid[e] a medical examination . . . when such an exami-
nation or opinion is necessary to make a decision on the
claim.” 38 U.S.C. § 5103A(d)(1) (emphasis added). An
examination is only necessary “if the evidence of record”
(1) contains “competent evidence” of a current disability,
and (2) “indicates that the disability or symptoms may be
associated”    with    the    veteran’s    service.    Id.
§ 5103A(d)(2)(A)–(B) (emphasis added). If the if criteria
are not met, the when result does not come into play.

    The Veterans Court applied § 5103A(d) and held that
“the evidence was insufficient to corroborate the occur-
rence of the claimed events” and that the Board’s “deter-
mination that there was insufficient evidence of an ‘event,
injury, or disease occurred in service’ is not clearly erro-
neous.” Sanchez-Navarro v. Shinseki, No. 12-1645, 2013
WL 5496825, at *6 (Vet. App. Oct. 4, 2013). Thus, the if
criteria were not met, and the medical examination was
not required. Moreover, those are factual determinations
over which we have no jurisdiction. We should therefore
dismiss that aspect of this appeal.

    The majority’s view would override the legal require-
ments for determining when a medical exam is “neces-
sary,” for it states that “[i]f that proviso [of § 3.304(f)(3)] is
met, the VA is obligated to provide the veteran with a VA
medical examination because such an examination would
be ‘necessary’ . . . .” Maj. Op. at 7 (emphasis added). The
majority states that the regulation is “clear on its face”
and thus requires a medical exam anytime the proviso is
satisfied. Id. at 6. The regulation is indeed clear, but it
does not support the majority’s decision. The majority
cannot ignore the express requirements of § 5103A(d). A
medical exam may be necessary for the veteran to ulti-
mately obtain the benefits of § 3.304(f)(3), as the majority
contends. See id. But again, § 5103A(d) states that a
SANCHEZ-NAVARRO   v. MCDONALD                             3




medical exam shall be provided only when it is necessary
to make a decision, and necessity is expressly defined as
when the evidence of record contains competent evidence.
The Board found that there was no such competent evi-
dence here.

    Moreover, the regulation is consistent with the stat-
ute; it does not purport to alter the standard laid out in
§ 5103A(d). Indeed, the regulation echoes the structure of
§ 5103A(d), with the proviso preceded by an “and,” which
is preceded by an “If” clause, which requires a psychiatrist
or psychologist to confirm that the stressor is adequate to
support a diagnosis of PTSD, a condition that has been
found not to have occurred here, a finding which we
cannot review. Yet the majority incorrectly transforms
the statute’s “when” into a declarative “because,” despite
the regulation’s parallel, conditional structure. The when
result was not invoked here because the if criteria were
not found to have been met, and we cannot review those
findings.

    Second, contrary to what the majority contends, the
Veterans Court considered this case under 38 C.F.R.
§ 3.304(f)(3) and found that the section simply did not
apply. Section 3.304(f)(3) lessens a veteran’s evidentiary
burden if, among other things, (1) the veteran claims an
in-service stressor related to hostile military or terrorist
activity, and (2) a VA psychologist or psychiatrist con-
firms that the stressor supports a PTSD diagnosis and
that the symptoms are related to the claimed stressor.
The majority asserts that the Veterans Court should have
applied the “more relaxed standard” of § 3.304(f)(3) in-
stead of § 3.304(f). But § 3.304(f)(3) contains the condi-
tional if, and the Veterans Court affirmed the Board’s
finding that Sanchez-Navarro only had a therapist con-
firm his PTSD diagnosis. Sanchez-Navarro, 2013 WL
5496825, at *4. Thus, the psychiatrist or psychologist
4                            SANCHEZ-NAVARRO   v. MCDONALD




criterion was not met and § 3.304(f)(3) did not apply.
Whether the confirmation of a PTSD diagnosis was only
made by a therapist, not a psychiatrist or psychologist, is
a fact question that is not before us. Because the Veter-
ans Court did not misinterpret § 3.304(f)(3), I would
therefore affirm this portion of the Veterans Court’s
decision.

    In my view, vacating and remanding this case, as the
majority does, would put our case law in conflict with the
statute and VA regulations.

    Accordingly, I respectfully dissent.
