Veteranclaims’s Blog

October 14, 2021

Single Judge Application; in approximate balance; Lynch v. McDonough; the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently explained in Lynch v. McDonough, No. 2020-2067, 2021 WL 2232115, at *3 (Fed. Cir. June 3, 2021), “a claimant is to receive the benefit of the doubt when there is an ‘approximate balance’ of positive and negative evidence,” which “necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance.”;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2793
BERYLE A. FERRIERA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Beryle A. Ferriera appeals through counsel a February
21, 2019, Board of Veterans’ Appeals (Board) decision denying entitlement to an effective date
earlier than September 21, 2016, for the grant of service connection for degenerative arthritis of
the spine. Record (R.) at 5-10. For the reasons that follow, the Court will affirm the February
2019 Board decision.
I. FACTS
Mr. Ferriera served on active duty in the U.S. Marine Corps from March 1952 to March 1954. R. at 696.R. at 696. In January 1954, he sought treatment for a sore back. R. at 669.
In October 1954, Mr. Ferriera appointed the American Legion as his veterans service
organization (VSO) representative. R. at 692. The next month, a VA regional office (RO) received
an application for outpatient dental treatment. R. at 694-95. The RO requested additional
information regarding the dental claim later in November 1954, R. at 679, and the veteran replied
the next month, R. at 680. Then, in January 1955, the RO denied entitlement to outpatient dental
treatment. R. at 653-54. None of those documents mentioned a back disability.
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In September 2016, Mr. Ferriera filed a claim for service connection for a back disability.
R. at 646-49. The RO granted the claim in January 2017, assigning September 21, 2016, as the
effective date for service connection. R. at 240-61. The veteran timely disagreed with that
decision, arguing that he was entitled to an effective date of October 22, 1954, because that was
the date he filed a claim for service connection for “both medical and dental compensation” with
his VSO representative. R. at 181. He further stated:
At a later date the VSO informed me that there was no record of any kind of me
reporting any type of injury in my file. As per your reporting you stated that during
the period from 4/1954-1/1955 Marine records were transferred to the Navy Dept.
I believe that may have been the reason that no file or record was available during
that period which showed my back injury. My service record apparently turned up
in early January[] 1955.
R. at 182. The RO followed up with Mr. Ferriera in November 2017, and a report of contact for
that telephone conversation reflects that the veteran stated that he “filed a medical claim with his
VSO back in California in 1954″ and was “wondering how he could have had a rating decision on
01/17/1955 if a claim was never filed.” R. at 176.
In an April 2018 deferred rating decision, a decision review officer (DRO) noted that the
only pre-2016 application for benefits in the veteran’s e-folder was the October 1954 claim for
outpatient dental treatment. R. at 102. The DRO communicated that finding to Mr. Ferriera in a
June 2018 telephone conference, and the veteran “indicated that his VSO may not have filed the
[back] claim.” R. at 89. Later that month, the RO issued a Statement of the Case denying an
earlier effective date because there was no record of a back claim filed before September 2016, R.
at 71-88, and the veteran timely perfected an appeal, R. at 70.
At an October 2018 Board hearing, Mr. Ferriera testified that, in October 1954, he took his
DD-214 to the local VSO to have it recorded and at that time he filed two claims—one for service
connection for a back disability and one for outpatient dental treatment. R. at 30. He explained
that, when he went back to the VSO office a week or so later to retrieve his DD-214, the VSO
officer told him that his back claim “could not be proved” because there was no record of an inservice
back injury. Id. The veteran further indicated that he had recently reviewed a copy of his
claims file and was unable to locate the October 1954 back claim. R. at 31-32. He ultimately
stated: “[I]f we can’t find the record I know that I filed, whether it never left Al Frey’s [(his VSO
representative’s)] office I do not know. I know I was there. I know I did it and I know that that
day I had got the recording.” R. at 41 (phonetic spelling corrected).
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Later that month, Mr. Ferriera submitted a statement in support of claim explaining that
the disputed back and dental claims “were filed on Oct. 24, 1954 . . with Albert Frey[,] Veterans
Service Officer.” R. at 22. He averred: “I know with[]out a doubt that I did in fact file this claim.”
Id.
In the February 2019 decision currently on appeal, the Board denied an effective date
earlier than September 21, 2016, for the grant of service connection for a back disability. R. at 5 –

The Board considered Mr. Ferriera’s lay statements, R. at 7-8, but found that a preponderance
of the evidence indicated that he did not file a back claim with VA until September 2016, R. at 5,

Although the Board stated that it had “no reason to question the [v]eteran’s sincerity with respect
to his claim,” it ultimately denied an earlier effective date because none of the documents received
by the RO in November 1954 referenced a back claim and the veteran himself stated “on a number
of occasions that he was unsure whether the VSO officer in 1954 actually filed a claim for a back
[dis]order.” R. at 8-9. This appeal followed.
II. JURISDICTION & STANDARD OF REVIEW
Mr. Ferriera’s appeal is timely and the Court has jurisdiction to review the February 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Under the legacy appeals system applicable to Mr. Ferriera’s appeal, the effective date of
an award of disability compensation based on an original claim is generally the date of receipt of
the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (effective until
Aug. 23, 2017)); 38 C.F.R. § 3.400 (2018); see Mitchell v. McDonald, 27 Vet.App. 431, 433
(2015). Prior to March 24, 2015, VA accepted both formal and informal claims for benefits. See
Norris v. West, 12 Vet.App. 413, 416 (1999); 38 C.F.R. § 3.155 (2014); Standard Claims and
Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (amending § 3.155 to require the filing of a
formal claim). To qualify as an informal claim, a document had to evince an intent to apply for
benefits and identify the benefits sought. Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019);
Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009). When determining whether the record contains
an informal claim for benefits, VA must be mindful of its “duty to fully and sympathetically
develop a . . . claim to its optimum” by “determin[ing] all potential claims raised by the evidence
[and] applying all relevant laws and regulations.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed.
4
Cir. 2004) (internal quotation marks and citation omitted); see Shea, 926 F.3d at 1367-68
(summarizing cases that require VA to liberally construe the record to determine whether
documents satisfy § 3.155). “A claim for benefits, whether formal or informal, remains pending
until it is finally adjudicated.” Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009).
The Board’s determination of the proper effective date is a finding of fact that the Court
reviews for clear error. See 38 U.S.C. § 7261(a)(4); Evans v. West, 12 Vet.App. 396, 401 (1999);
Hanson v. Brown, 9 Vet.App. 29, 32 (1996). “A factual finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App.
91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see Gilbert
v. Derwinski, 1 Vet.App. 49, 53 (1990) (explaining that the Court “is not permitted to substitute
its judgment for that of the [Board] on issues of material fact” and therefore may not overturn the
Board’s factual determinations “if there is a ‘plausible’ basis in the record for [those]
determinations”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its effective date determination with adequate reasons or bases that enable the
claimant to understand the precise basis for that determination and facilitate review in this Court.
38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board
must analyze the credibility and probative value of evidence, account for evidence that it finds
persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to
the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
III. ANALYSIS
Mr. Ferriera argues that the Board provided inadequate reasons or bases for its decision
because it did not address whether VA satisfied the duty to assist in attempting to locate his
October 1954 back claim and failed to adequately explain why it did not credit his lay reports of
filing that claim, despite finding them “sincere.” Appellant’s Brief (Br.) at 9-14. He also asserts
that the Board’s reasons or bases for not applying the benefit of the doubt were inadequate and
asks the Court to “take due account of the benefit of the doubt rule.” Id. at 15-20. Mr. Ferriera
argues that each of these errors was prejudicial because, if the Board had properly applied the law
5
to the facts of his case, it would have been required to either provide heightened reasons or bases
for its decision or apply 38 C.F.R. § 3.156(c) to his claim. Id. at 20-22.
The Secretary disputes these contentions and urges the Court to affirm the Board decision.
Specifically, he asserts that the Board plausibly found, and adequately explained, that Mr. Ferriera
did not file a back claim with VA in October 1954 and that the veteran’s arguments to the contrary
are based on a misunderstanding or misstatement of the evidence of record and the Board’s
analysis. Secretary’s Br. at 6-17. Mr. Ferriera responds that “[e]ach of the Secretary’s arguments
share the same Major Premise: the Secretary’s belief the [Board] made a finding of fact that Mr.
Ferriera did not file a claim to service connect his back in 1954,” but that the Board “made no such
finding.” Reply Br. at 6. The Court agrees with the Secretary.
As noted above, the Board reviewed Mr. Ferriera’s lay statements, including his October
2018 Board hearing testimony, and concluded that those statements reflected only that the veteran
gave his VSO representative a claim for service connection for a back disability in October 1954,
not that he or his representative actually filed that claim with VA at that time. R. at 7-9. To support
this interpretation, the Board noted that none of the documents received by VA in November 1954
referred to a back disability, that the veteran himself stated “on a number of occasions that he was
unsure whether the VSO officer in 1954 actually filed a claim for a back [dis]order ,” and that its
own review of the record did not uncover any document from 1954 that could be construed as a
formal or informal claim for service connection for a back disability. R. at 8-9. The Board
therefore concluded that Mr. Ferriera was not entitled to an earlier effective date for the grant of
service connection for a back disability because “[t]he preponderance of the evidence indicates
that [he] did not file a formal or informal claim for entitlement to service connection for a back
condition prior to September 21, 2016.” R .at 5. These findings accord with governing law, have
a plausible basis in the record, and were adequately explained. See Gilbert, 1 Vet.App. at 53, 57.
The veteran’s arguments to the contrary are unavailing. First, he asserts that the Board was
required to provide a more detailed explanation of the steps that VA took to attempt to locate his
October 1954 back claim, including “how [his] records were maintained between October 1954
and present, how the Secretary conducted his search for the claim form, what records the Secretary
searched, or why any search was reasonably exhaustive and fulfilled the duty to assist.”
Appellant’s Br. at 12. However, the authorities he cites in support of this argument—namely,
6
38 U.S.C. §§ 5103A(b) and (c) and Dixon v. Derwinski, 3 Vet.App. 261 (1992), see Appellant’s
Br. at 11—impose no such obligation.
Specifically, section 5103A(b) outlines the assistance that VA must provide in attempting
to obtain private records from sources outside of VA and does not apply to records allegedly
already in VA custody. 38 U.S.C. § 5103A(b). Assuming, without deciding, that section 5103A(c)
could be construed to apply to this situation, see 38 U.S.C. § 5103A(c)(1)(C) (requiring VA, in
compensation claims, to attempt to obtain any relevant records (other than service medical records
and VA treatment records) held by a Federal department or agency), that paragraph requires only
that VA’s efforts to obtain such relevant records continue until the records are obtained or VA finds
that the records do not exist or further efforts to obtain them would be futile, 38 U.S.C. §
5103A(c)(2). The DRO did that in this case, finding—after reviewing the claims file—that VA
did not receive a back claim from the veteran in October 1954 and notifying him of that finding
on multiple occasions. R. at 102 (April 2018 deferred rating decision), 89 (June 2018 informal
conference report), 88 (June 2018 SOC). Nothing in section 5103A(c) imposes the specific
requirements that the veteran describes.
To the contrary, those requirements stem from a passage in Dixon, in which the Court held
that, when service records were in the custody of the National Personnel Records Center and then
become unavailable, the Board must explain to the claimant, upon denial of a claim based on
missing records, “how service records are maintained, why the search that was undertaken
constitutes a reasonably exhaustive search, and why further efforts (e.g., inquiries directed to the
named facilities, if they are still operational) are not justified.” 3 Vet.App. at 264. But Dixon is
clear that such additional explanation is required only when records existed and were in the
Government’s custody and lost before being added to the claims file. Dixon does not, as the veteran
contends, stand for the general proposition that the Board has a heightened reasons -or-bases
requirement when there is a factual question as to whether a claim was actually submitted to VA
in the first place. As such, Mr. Ferriera has failed to carry his burden of demonstrating that the
Board was required to provide the additional reasons or bases that he seeks. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating
error), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
Second, Mr. Ferriera argues that the Board did not adequately explain why it did not accept
his lay reports of filing the October 1954 back claim even though it found his statements “sincere.”
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Appellant’s Br. at 13-14. But this argument is based on a misreading of the Board decision.
Significantly, although the Board said that it had “no reason to question the [v]eteran’s sincerity
with respect to his claim,” R. at 9, the Board was referring to Mr. Ferriera’s statements that he
brought a back claim to the VSO in October 1954 and was unsure whether his VSO representative
filed the claim with VA at that time, see id. Despite Mr. Ferriera’s argument, there is nothing
inconsistent with the Board finding that description of events to be credible while also finding that
VA did not receive a back claim in 1954. Those factual findings were well within the Board’s
purview, see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact
finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and
of itself.”), and the explanation it gave for reaching those conclusions is understandable and
facilitative of judicial review, see Southall-Norman v. McDonald, 28 Vet.App. 346, 355 (2016);
Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Therefore, the Court concludes that the
Board provided adequate reasons or bases for its assessment of the lay evidence of record.
Third, Mr. Ferriera asserts that the Board failed to properly apply the benefit of the doubt
and asks the Court to do so in the first instance. Appellant’s Br. at 15-20. However, because the
Board plausibly found that the evidence of record preponderated against the veteran’s claim as
described above, R. at 5, it properly concluded that the benefit of the doubt was not for application,
R. at 10. As the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently explained in Lynch v. McDonough, No. 2020-2067, 2021 WL 2232115, at *3 (Fed. Cir. June 3, 2021), “a claimant is to receive the benefit of the doubt when there is an ‘approximate balance’ of positive
and negative evidence,” which “necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance.”
However, “‘if the Board is persuaded that the preponderant evidence weighs either for or against the veteran’s claim, it necessarily has determined that the evidence is not “nearly equal” . . . and the benefit of the doubt rule therefore has no application.'” Id. at *4 (quoting Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001)).
That is what happened in this case. R. at 5, 10. Therefore, the Court discerns no error in the Board
not applying the benefit of the doubt to the veteran’s claim. See Lynch, No. 2020-2067, 2021 WL
2232115, at *4; Ortiz, 274 F.3d at 1365.
Finally, Mr. Ferriera urges the Court to reject the Secretary’s arguments in defense of the
Board decision because, according to the veteran, they are premised on the Secretary’s mistaken
belief that the Board found that the veteran did not file a back claim with VA in October 1954,
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which the Board did not do. Reply Br. at 6. But contrary to the veteran’s contention, the Board
expressly found that he “did not file a formal or informal claim for entitlement to service
connection for a back condition prior to September 21, 2016.” R. at 5 (Board’s second finding of
fact). The veteran’s responses to the Secretary’s arguments therefore appear to be based on a
misreading of the Board decision and, like his principal arguments, do not demonstrate Board error
in denying his claim. See Hilkert, 12 Vet.App. at 151.
IV. CONCLUSION
Upon consideration of the foregoing, the February 21, 2019, Board decision is
AFFIRMED.
DATED: June 29, 2021
Copies to:
Christopher F. Attig, Esq.
VA General Counsel (027)

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