Veteranclaims’s Blog

February 16, 2018

Single Judge Application; Bannon, 12 Vet.App. at 35; informal claim; context of other documents;

Excerpt from decision below:

“Here, the Board addressed the August 1976 statement and tersely explained that, because the statement contained appellant’s specific request for “an increase in the disability rating assigned for his service-connected residuals of a brain concussion, to include cephalgia,” it could not reasonably be interpreted as an informal mood disorder claim. R. at 11. That is the entirety of the Board’s discussion pertaining to the August 1976 statement. The Board’s determination ignores its obligation to consider the statement in the context of other documents and not simply in isolation. See Bannon, 12 Vet.App. at 35. Because the Board failed to address Dr. Gabriel’s statement in conjunction with the contents of appellant’s statement, which were submitted together, judicial review is frustrated and remand is warranted.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-0752
GLEN S. HOBBS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Glen S. Hobbs appeals through counsel a March 3, 2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to an effective date earlier than September 7, 2004, for a total disability rating for service-connected mood disorder due to traumatic brain injury (TBI). Record (R.) at 2-14. This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the March 2017 Board decision and remand the matter for readjudication consistent with this decision.

I. RELEVANT FACTS AND PROCEDURAL HISTORY
Appellant served on active duty in the U.S. Air Force from February 1960 to February
1964. R. at 1414. In May 1971, a VA regional office (RO) granted service connection for brain
concussion residuals with cephalgia.1 R. at 1278-79. In August 1976, appellant submitted a
statement to VA, requesting that it “[p]lease consider this as a request for a possible increase in
rating of my service connected disability currently rated at 20% (concussion of Brain [with] . . .
1 Cephalgia is a “headache”. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 330 (32d ed. 2012).
2
cephalgia).” R. at 1242. Attached to this document was a statement by Dr. Gabriel, a private
examiner, stating that appellant “[h]as headache, insomnia [and] nervous – residual cephalgia
secondary to concussion.” R. at 1247.2
After a lengthy procedural history, in April 2013 the RO assigned a 100% (total) disability
rating for service-connected mood disorder, effective September 7, 2004, the date VA determined
that appellant filed the claim for that condition. R. at 553-56. Appellant perfected his appeal to the
Board arguing that he is entitled to an earlier effective date for service-connected mood disorder
because his August 1976 statement constituted an unadjudicated informal claim for that condition.
R. at 251. In March 2017, the Board issued the decision on appeal denying an earlier effective date
for a total disability rating for service-connected mood disorder. R. at 8-14. The Board concluded
that the August 1976 statement could not reasonably be interpreted as an informal mood disorder
claim. R. at 11. This appeal followed.
II. ANALYSIS
On appeal, appellant’s sole argument is that the Board provided inadequate reasons or bases
for its finding that the August 1976 statement should not be reasonably construed as an informal
claim for a mood disorder. Specifically, appellant contends that the Board failed to address the
entirety of his August 1976 submission, particularly the attachment with Dr. Gabriel’s statement
noting nervousness relative to the in-service concussion. Appellant’s Brief (Br.) at 8-9. Reply Br.
at 1.3 The Secretary argues that the Board did not err in finding that the August 1976 statement did
not constitute an informal claim. Secretary’s Br. at 11-14.
The effective date for an award of compensation benefits generally is the date of the receipt
of the claim or the date entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a);
38 C.F.R. § 3.400 (2017). The essential elements for any claim, whether formal or informal,” are
“(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a
2 VA adjudicated the August 1976 statement only as an increased rating claim for service-connected brain
concussion residuals with cephalgia, a claim that is not on appeal here.
3 In his initial brief, appellant also argued that the Board erroneously relied on the finality of an April 1977
VA RO decision when making its decision on appeal. Appellant’s Br. at 10-11. However, he expressly withdrew that
argument in his reply brief. Reply Br. at 5. The Court will therefore not consider this argument further.
3
communication in writing.” Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009).4 It is well
established that VA must fully and sympathetically develop a veteran’s claim to its optimum before
reaching the claim on its merits. Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998). Although
“a claimant’s identification of the benefit sought does not require any technical precision,”
Brokowski, 23 Vet.App. at 88 (citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)), the
Board is not required to “conjure up issues that were not raised by the claimant,”‘ id. (quoting
Brannon v. West, 12 Vet.App. 32, 35 (1998)). The Board is required to review all communications
in the record that may be interpreted as formal or informal claims and consider whether such
communications, in the context of the entire record, reasonably raise a claim for benefits. See
Brannon, 12 Vet.App. at 35.
“[A] claimant is not required in filing a claim for benefits to identify a precise medical
diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits ‘by
referring to a body part or system that is disabled or by describing symptoms of the disability.'”
DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011) (quoting Brokowski, 23 Vet.App. at 86); see also
Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (stating that, when determining the scope of a claim,
the Board must consider “the claimant’s description of the claim; the symptoms the claimant
describes; and the information the claimant submits or that the Secretary obtains in support of that
claim”). The determination of whether an informal claim has been filed is a substantially factual
determination reviewed under the “clearly erroneous” standard of review. See Brokowski,
23 Vet.App. at 85; see also Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (“[S]pecific factual
determinations regarding whether the appellant’s submissions and arguments reasonably raised an
informal claim . . . are best for the Board to make in the first instance.”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its determination that an informal claim has not been filed with a statement of reasons
or bases adequate to enable an appellant to understand the precise basis for its decision, as well as
to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
4 In September 2014, VA eliminated informal claims in favor of an “intent to file” system, which requires
submission of certain preliminary information on a standardized form. See 79 Fed. Reg. 57,660, 57,664 (Sept. 25,
2014). However, the caselaw referencing informal claims remains relevant for the issues on appeal here.
4
(1995); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); Gilbert v. Derwinski, 1 Vet.App. 49, 56–57 (1990).
Here, the Board addressed the August 1976 statement and tersely explained that, because the statement contained appellant’s specific request for “an increase in the disability rating assigned for his service-connected residuals of a brain concussion, to include cephalgia,” it could not reasonably be interpreted as an informal mood disorder claim. R. at 11. That is the entirety of the Board’s discussion pertaining to the August 1976 statement. The Board’s determination ignores its obligation to consider the statement in the context of other documents and not simply in isolation. See Bannon, 12 Vet.App. at 35. Because the Board failed to address Dr. Gabriel’s statement in conjunction with the contents of appellant’s statement, which were submitted together, judicial review is frustrated and remand is warranted. See Brokowski, 23 Vet.App. at 85; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate); see also Caluza, 7 Vet.App. at 506;
Gilbert, 1 Vet.App. at 52.
The Court recognizes the Secretary’s argument that the Board did not err in its finding that
the August 1976 statement was not an informal claim “[e]ven considering it in light of Dr. Gabriel’s
statement.” Secretary’s Br. at 13. He explains that Dr. Gabriel’s statement did not indicate a
separate disability and instead related any nervousness to headaches. Id. However, the Secretary’s
post-hoc rationalizations cannot cure the Board’s error. See Martin v. Occupational Safety &
Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to
deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action
advanced for the first time in the reviewing court.”).
On remand, the veteran is free to submit additional evidence and argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a critical examination of the
justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In
addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited
treatment of remanded claims).
5
III. CONCLUSION
After consideration of the parties’ briefs and the record, the March 3, 2017, Board decision
is SET ASIDE and the matter is REMANDED for readjudication consistent with this decision.
DATED: February 15, 2018
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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