Veteranclaims’s Blog

October 24, 2021

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a);

Decision Assessment Document
Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019)
U.S. Court of Appeals for the Federal Circuit

What the case is about:

The Federal Circuit held that where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a)

(This only applies to the version of 3.155(a) regarding informal claims in effect prior to regulatory revisions effective March 24, 2015, which eliminated the concept and application of informal claims from VA regulations.) 

Impact on VBA:

The Court’s holding will be incorporated into the Manual M21-1 in guidance contained under III.ii.2.C.

Summary of the facts and Court’s reasons: 

The veteran’s service entrance examination in October 2006 showed a normal psychiatric condition.  In January 2007 she was diagnosed with adjustment disorder with anxiety and depressed mood.  It was noted that the veteran had obtained professional help for anxiety and depression.  Four days later, on January 23, 2007, she was struck by a large truck and was treated by the emergency room at the United Regional Health Care Systems and was shown to have several physical injuries. 

After being released from the emergency department, she was treated at several facilities, to include HealthSouth Rehabilitation Hospital in Wichita Falls, Texas.  The medical records from that facility showed report of anxiety, depression, and impaired memory, which were assessed as “currently exacerbated.”  She was prescribed antidepressants while at the facility. 

In March 2007, a medical evaluation board recommended discharge from service, reasoning that continued service was not compatible with anxiety and depression and sleep disturbance, which put her at risk for inattention and self-harm.  The following month the veteran was transferred to Dover AFB.  Medical records from Dover, although primarily focused on physical injuries, listed diagnoses of anxiety and depression and noted memory problems. 

A physical evaluation board from May 2007 found that the veteran’s pelvic fractures and transverse process fracture rendered her unfit for service.  Her adjustment disorder with depression and anxiety were not found to be separately unfitting or compensable.  The veteran was discharged in July 2007 due to physical disabilities. 

The veteran, in October 2007, filed a claim for service connection for four physical disabilities.  She indicated in the application for benefits that each disability began January 23, 2007, the date of the truck accident and listed the United Regional Hospital, Wichita Falls Rehabilitation Hospital, and the Dover AFB facility as medical facilities where the conditions were treated. 

The regional office (RO), in February 2008, awarded service connection for a transverse process fracture, pelvic fracture, and rib fractures.  She submitted a Notice of Disagreement in July 2008 with an attached letter asking VA to reconsider her ratings and also identifying symptoms involving memory loss and have to “live the accident daily now.” 

The veteran filed a claim for service connection for post-traumatic stress disorder (PTSD) on September 9, 2008, asserting that it is related to the in-service truck accident.  The RO, in February 2009, granted service connection for PTSD with a 50 percent rating effective September 9, 2008, the date of her submission expressly requesting benefits for PTSD.  She appealed the decision, challenging the effective date and arguing that the case had been in appellate status since the original application of July 2007.  The Board of Veterans’ Appeals (Board), in March 2014, denied the appeal for an effective date earlier than September 9, 2008, for the PTSD benefits. 

In December 2015, the veteran and VA moved for a partial remand to the Board, agreeing that the Board, in determining whether the veteran had filed a claim for PTSD before September 9, 2008, had failed to consider the veteran’s July 7, 2008 statement that she was experiencing memory difficulties.  The parties agreed that the statement was especially relevant in light of the subsequent medical evidence of record highlighting the symptom of memory loss before diagnosing PTSD.  The Veterans Court granted the motion and remanded the case to the Board. 

The Board, in July 2016, relying on 3.155 in effect in 2007, found that the veteran’s July 2008 statement describing her memory impairment constituted an informal claim for PTSD-disability benefits and awarded an effective date of July 7, 2008, for PTSD disability benefits.  The Board refused to grant an earlier effective date, finding that the veteran had not presented an informal claim for PTSD-benefits before July 7, 2008.  The Board reasoned that the veteran’s October 19, 2007 submission did not identify the benefits being sought for psychiatric disability under 3.155(a) because it did not refer to any psychiatric disability or symptoms that can be attributed to a psychiatric disability.  The Board also determined that the veteran’s service and post-service treatment records, while stating psychiatric diagnoses, do not constitute an informal claim, as there was no indication that the veteran intended to file a claim for service connection for PTSD through the mere submission of medical records in support of her formal claims for service connection for non-psychiatric disabilities. 

The Veterans Court, in December 2017, affirmed the Board decision, finding that the veteran had not adequately identified a psychiatric disability as one of the benefits sought for purposes of stating an informal claim under 3.155(a), since the submission did not refer to any psychiatric conditions or symptoms attributable to her psychiatric condition.  The Veterans Court held that the mere existence of medical evidence of a psychiatric condition, in existence at the time of the formal claim for physical disabilities, does not raise an initial claim for benefits. 

The veteran argued before the Federal Circuit that the Veterans Court did not apply the proper legal standard for considering her October 2007 application for benefits by considering in isolation from, rather than in conjunction with, her other submissions and service treatment records. 

The Federal Circuit reviewed its case law concerning informal claims and concluded it demonstrates that while a pro se claimant’s “claim must identify the benefit sought,” the identification need not be explicit in the claim-stating documents but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.  The Federal Circuit stated that VA, when deciding what disabilities, conditions, symptoms, or the like the claim-stating documents are sympathetically understood to be identifying, must look beyond the four corners of those documents when the documents themselves point elsewhere, such as to medical records. 

The Federal Circuit agreed with the veteran, concluding that the Veterans Court’s interpretation of 3.155(a) was too restrictive, as it seemingly required that to “identify the benefit sought,” as required by the regulation, meant that the application had to contain words that refer to a psychiatric disability or to mental-health symptoms, as opposed to language that points to records mentioning such a condition in a way that, when sympathetically read, is properly understood as seeking benefits for such a condition.  The Federal Circuit noted that the veteran listed treatment by specific physicians at specific facilities during specific periods in the October 2007 application and refers to itemization when stating that she is applying for service-connected disabilities.  She also cites to express references to psychiatric problems in medical records that were itemized. 

The Federal Circuit stated that it was not addressing whether the 3.155(a) standard can be met by the existence of a diagnosis in a claimant’s medical records, without more, or in conjunction with a generalized request for all benefits that are supported in all medical records that VA would gather in the ordinary course.  It emphasized that it was only holding that where a claimant’s filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 3.155(a). 

The Federal Circuit, holding that the Veterans Court did not articulate and apply the proper legal standard, vacated its decision and remanded the case for application of its holding to the facts of the case. 

References:

Federal Circuit number: No. 2018-1735

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1735.Opinion.6-20-2019.pdf

M21-1, Part III, Subpart ii, Chapter 2, Section C – Informal Claims Received Prior to March 24, 2015, Communication of an Intent to File (ITF), and Requests for Application


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