Veteranclaims’s Blog

October 20, 2021

FedCir Application; 38 C.F.R. § 3.155(a); Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020); Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); appears to argue that because support for his claim can be found in the medical records, his Claim should be considered an informal claim under the applicable version of 38 C.F.R. § 3.155(a),2 “any communication can qualify as an informal claim if it: (1) is in writing; (2) indicates an intent to apply for veterans’ benefits; and (3) identifies the particular benefits sought.” Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal quotation marks omitted). A “[v]eteran need not refer explicitly to the name of an illness, injury, or condition” on his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020). A high level of generality will suffice, so long as the “benefit sought . . . can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea, 926 F.3d at 1368 (internal quotation marks omitted).; Had Mr. Germany’s mental health records been before the RO in the first instance in evaluating his Claim, that might have been sufficient to qualify as an informal claim. See id. at 1370. In Shea, we held that the VA erred by not construing the veteran’s claim to cover psychiatric conditions referenced in her medical records but not explicitly listed on her claim form. Id; 2 In 2015, the VA implemented a rule that claims for disability benefits must be filed on a standard form and revised 38 C.F.R. § 3.155. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014).

Filed under: Uncategorized — Tags: — veteranclaims @ 5:02 pm

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit


JEROME L. GERMANY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1089


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6131, Chief Judge Margaret C.
Bartley, Judge William S. Greenberg, Senior Judge William
P. Greene, Jr.


Decided: October 19, 2021


JEROME L. GERMANY, Cedar Hill, TX, pro se.
SARAH E. KRAMER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office
Case: 21-1089 Document: 19 Page: 1 Filed: 10/19/2021
2 GERMANY v. MCDONOUGH
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.


Before NEWMAN, DYK, and REYNA, Circuit Judges.
PER CURIAM.
Jerome J. Germany appeals a decision of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”),
which affirmed the Board of Veterans’ Appeals (“Board”)
decision denying an earlier effective date for service-connected
compensation for post-traumatic stress disorder
(“PTSD”). We affirm.


BACKGROUND
Mr. Germany served on active duty in the U.S. Navy
from November 1988 to September 1992. In April 2008,
Mr. Germany filed a claim with the Department of Veterans
Affairs (“VA”) for service-connected disability compensation
for fatigue and breathing problems (the “2008
Claim”). Despite repeated requests from the VA regional
office (“RO”), Mr. Germany did not provide the VA with any
information about the disabilities claimed, including when
symptoms began, dates of any treatment, or identifying information
for treatment providers. Mr. Germany later authorized
the RO to obtain his medical records but again
failed to provide any information upon which the VA could
locate the relevant medical records. In December 2009, the
VA denied Mr. Germany’s claim.
In October 2016, Mr. Germany was diagnosed with
PTSD. A month later, Mr. Germany filed a new claim, this
time seeking service connection for PTSD/chronic adjustment,
depression, and anxiety (the “2016 Claim”). In connection
with processing the 2016 Claim, the RO obtained
Mr. Germany’s mental health records, which reflected that,
after a May 2008 VA mental health screening, Mr. Germany
tested positive for depression and negative for PTSD.
Case: 21-1089 Document: 19 Page: 2 Filed: 10/19/2021
GERMANY v. MCDONOUGH 3


In July 2017, the RO granted Mr. Germany’s request for
service connection for PTSD and assigned a 50 percent disability
rating effective November 2016.
Mr. Germany challenged the November 2016 effective
date before the Board, arguing that the VA was constructively
made aware of his PTSD disability by his 2008
Claim, and that awareness should serve as an informal
claim, justifying an earlier effective date.1 The Board denied
Mr. Germany’s claim of entitlement to an earlier effective
date, and the Veterans Court affirmed.
Mr. Germany now appeals to this court. We have jurisdiction
pursuant to 38 U.S.C. § 7292(d)(1).


DISCUSSION
Mr. Germany appears to argue that because support
for his PTSD claim can be found in the 2008 medical records,
i.e., his diagnosis of depression, his 2008 Claim
should be considered an informal claim for PTSD. Under
the applicable version of 38 C.F.R. § 3.155(a),2 “any communication
can qualify as an informal claim if it: (1) is in
writing; (2) indicates an intent to apply for veterans’ benefits;
and (3) identifies the particular benefits sought.” Shea
v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal
quotation marks omitted). A “[v]eteran need not refer explicitly
to the name of an illness, injury, or condition” on
his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.
1 Mr. Germany also appealed his initial rating of 50
percent for his service-connected PTSD, which the Board
remanded to the RO. That issue is not relevant to the present
appeal.
2 In 2015, the VA implemented a rule that claims for
disability benefits must be filed on a standard form and revised
38 C.F.R. § 3.155. See Standard Claims and Appeals
Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014). Mr. Germany’s
alleged informal claim predates this change.
Case: 21-1089 Document: 19 Page: 3 Filed: 10/19/2021
4 GERMANY v. MCDONOUGH


Cir. 2020). A high level of generality will suffice, so long as
the “benefit sought . . . can also be found indirectly through
examination of evidence to which those documents themselves
point when sympathetically read.” Shea, 926 F.3d
at 1368 (internal quotation marks omitted).
Had Mr. Germany’s mental health records been before
the RO in the first instance in evaluating his 2008 Claim,
that might have been sufficient to qualify as an informal
claim for PTSD. See id. at 1370. In Shea, we held that the
VA erred by not construing the veteran’s claim to cover psychiatric
conditions referenced in her medical records but
not explicitly listed on her claim form. Id
. However, unlike
Mr. Germany, the veteran in Shea included in her prior application
for benefits information as to the relevant records,
specifying “treatment by specific physicians at specific facilities
during specific periods.” Id. at 1369. Here, despite
the repeated efforts of the RO to obtain information from
Mr. Germany that could help locate his medical records, he
failed to provide it. We therefore agree with the Veterans
Court that “the Board was not required to anticipate an informal
claim for PTSD that was not reasonably raised by
the record or reasonably encompassed within the 2008
claim for breathing problems and fatigue.” S.A. 6.
Mr. Germany also argues that the VA violated its duty
to assist under 38 U.S.C. § 5103A(c)(1)(B). The question
whether Mr. Germany provided enough information with
his 2008 Claim “to identify and locate the existing records,”
“the approximate time frame covered by the records,” and
“the condition for which treatment was provided,”
38 C.F.R. § 3.159(c)(3), such that it would trigger the Secretary’s
duty to assist, is a factual question outside of this
court’s jurisdiction, see Glover v. West, 185 F.3d 1328, 1333
(Fed. Cir. 1999).
CONCLUSION
We have considered the remainder of Mr. Germany’s
claims, including his claims that the Veterans Court
Case: 21-1089 Document: 19 Page: 4 Filed: 10/19/2021
GERMANY v. MCDONOUGH 5
decision implicates his due process rights and that it was
improper for the Veterans Court to decide his case with a
single-judge panel, and find they are without merit. Accordingly,
we affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.
Case: 21-1089 Document: 19 Page: 5 Filed: 10/19/2021

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