Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3654
JOSE A. ANGLERO-DURAN, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Jose A. Angelero-Duran, though counsel appeals a
March 16, 2018, Board of Veterans’ Appeals (Board) decision denying entitlement to an effective
date earlier than May 21, 2002, for the award of service connection for schizophrenia, paranoid
type. Record of Proceedings (R.) at 2-13. For the reasons that follow, the Court will set aside the
March 2018 Board decision and remand the matter for readjudication consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Marine Corps from January 1976 to October
- R. at 1669.
On June 2, 1978, the appellant filed a claim for service connection for a nervous condition.
R. at 1664-67. A November 3, 1978, rating decision denied service connection for nervous a
condition. R. at 1633-34. A December 6, 1978, VA letter addressed to the appellant notified him
of the November 1978 rating decision and his rights to appeal. R. at 1631-32. A February 1980
Statement of the Case (SOC) denied service connection for a nervous condition. R. at 1578-83.
On April 9, 1985, VA received the appellant’s application for compensation or pension,
requesting service connection for anxiety problems. R. at 1549-52. A May 1, 1985, VA letter
addressed to the appellant stated that he needed to submit new and material evidence to reopen his
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previously denied claim for service connection for a nervous condition and that until such evidence
was received, no action would be taken on his claim. R. at 1547.
A September 1986 VA letter to the appellant stated that he had been awarded an
educational allowance and that his remaining entitlement of allowance would be 30 months and
1 day if he used the educational allowance prior to October 8, 1987. R. at 1476. A March 8, 1987,
letter to the appellant stated that no educational benefits could be used after October 8, 1987, and
that he may only be entitled to an extension of his delimiting date if he had been prevented from
initiating or completing a program of education because of a disability. R. at 1459. The letter
stated that if he wished to apply for an extension, he must show the following: - The type of disability you are claiming[;] 2. The beginning and ending dates of
the disability you claim prevented you from training[;] 3. A brief statement of how
the claimed disability was incurred[;] 4. A statement of your employment history
during the period of claimed disability. Include names and addresses of all
employers, dates and weekly hours of employment, and types of jobs you held
during the period in question[;] 5. Medical evidence of the claimed disability. The
best evidence would be a statement, signed by the doctor, who treated you,
specifying the disability, the duration of the disability, and giving the doctor’s
judgment of the possibility of your working or pursuing your education while the
disability existed. If you cannot obtain such a statement, submit any other available
medical evidence such as hospital reports or laboratory test results.
R. at 1459-61.
In April 1987, the appellant responded, requesting that his delimiting date be extended
because of illness. R. at 1457. He requested consideration of his attached medical evidence
concerning his psychiatric state. Id. A May 1979 medical record stated that the appellant was
nervous, anxious, had paranoid delusion, and suicidal ideation. R. at 1450-51.
A June 1987 VA letter to the appellant requested that he respond to items 1 to 4 in the
March 1987 letter and to submit that information within 30 days. R. at 1435. An August 1987
VA letter to the appellant stated that because he did not respond with the requested information,
his claim must be denied. R. at 1433.
In August 1987, the appellant submitted a VA Form 21-4138, statement in support of claim,
and concerning item 1, he stated that he had a left knee problem and a nervous condition. R. at - Concerning item 2, he reported that the conditions began on May 17, 1976, and that he still
had the conditions. Id. Concerning item 3, he stated that he began experiencing the symptoms of
his nervous condition during his military service. Id.
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In a November 2, 1987, letter to the appellant, VA requested that he provide the beginning
and ending dates of any period that he was unable to pursue training because of his disability and
a physician’s statement regarding his disability, and that he submit the information to VA within
30 days. R. at 1407. A February 1988 VA letter to the appellant stated that his claim was denied
because he failed to provide the requested information. R. at 1402.
In May 1988, the appellant stated that he wanted to apply for an extension of his delimiting
date and attached the medical evidence requested by VA in its November 1987 letter. R. at 1400.
A June 1988 VA letter to the appellant noted that he must provide information as requested by the
previous VA letters. R. at 1398-99. A September 1988 VA letter to the appellant noted that his
claim was again denied because of his failure to respond. R. at 1396.
On May 21, 2001, VA received the appellant’s claim to reopen his claim for service
connection for a psychiatric condition. R. at 1379. A December 2002 rating decision denied
reopening the appellant’s claim. R. at 1285-87. The appellant filed a Notice of Disagreement
(NOD), and an SOC continued to deny the claim. R. at 1190-1206, 1276. He appealed the decision
to the Board. R. at 1184.
A July 2011 Board decision granted service connection for schizophrenia. R. at 603-13.
An August 2011 rating decision implemented the Board’s decision and assigned an initial 100%
disability rating for schizophrenia, paranoid, type, effective May 21, 2002, the date that VA
received the appellant’s claim to reopen. R. at 590-94. The appellant filed an NOD, R. at 453, and
a September 2013 SOC denied an effective date earlier than May 21, 2002, for the award of service
connection for schizophrenia. R. at 423-43. He appealed the decision to the Board. R. 419.
A June 2015 Board decision denied entitlement to an earlier effective date. R. at 249-57.
The appellant appealed the Board decision to the Court and, in April 2016, the parties filed a joint
motion for remand (JMR), stating that the Board erred by not discussing the appellant’s August 28,
1987, submission. R. at 190. In April 2016, the Court granted the JMR and remanded the matter
for action consistent with the JMR. R. at 193.
A March 2017 Board decision again denied entitlement to an earlier effective date.
R. at 129-38. The Board determined that the August 1987 statement did not constitute an informal
claim under 38 C.F.R. § 3.155 (b)(2). R. at 137. The appellant appealed the Board’s March 2017
decision to the Court and, in September 2017, the parties filed a JMR. R. at 31-36. The parties
found that a remand was required because the Board erred in applying 38 C.F.R. § 3.155 (b)(2),
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which was not in effect at the time of the appellant’s August 1987 submission. Id. The Court
granted the JMR and remanded the matter for action consistent with the JMR. R. at 37.
A March 2018 Board decision denied entitlement to an earlier effective date. R. at 2-13.
The Board found that the appellant’s August 28, 1987, written statement did not constitute an
informal claim for service connection for his service-connected schizophrenia under the version
of 38 C.F.R. § 3.155 in effect at that time. R. at 10. The Board stated:
In the August 28, 1987, written statement itself, the [appellant] clearly indicated
that he sought a change of his delimiting date for education benefits at the top of
the form. Although he attributed the onset of his “nervous condition” and another
disorder to his military service, it is not evident that the [appellant] intended to
reopen his previously denied service connection claim or that he was seeking
disability compensation as part of that submission.
Id.
The Board also found a “distinction between reporting facts regarding a separate claim for
education benefits and evidencing a belief in entitlement to service connection itself.” R. at 11.
This appeal followed.
II. ANALYSIS
Generally, the effective date of a claim for benefits is the date VA received the claim or
the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R.
§ 3.400(b)(2)(i) (2019); see Sutton v. Nicholson, 20 Vet.App. 419, 422 (2006).
Under 38 C.F.R. § 3.155(a) (1987), “[a]ny communication or action, indicating an intent
to apply for one or more benefits under the laws administered by the Department of Veterans
Affairs, from a claimant . . . may be considered an informal claim.” The regulation further provides
that “[s]uch informal claim must identify the benefit sought.” Id. To qualify as an informal claim,
a written document must evince an intent to apply for benefits and identify the benefits sought.
MacPhee v. Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006); Brokowski v. Shinseki, 23 Vet.App.
79, 84 (2009). Though VA “is not required to conjure up issues that were not raised by the
claimant,” Brannon v. West, 12 Vet.App. 32, 35 (1998); see Criswell v. Nicholson, 20 Vet.App.
501, 503-04 (2006), VA must be mindful, when determining whether a filing constitutes an
informal claim for service connection, 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
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relevant laws and regulations,” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (internal
quotation marks and citation omitted); see Ephraim v. Brown, 5 Vet.App. 549, 553 (1993) (holding
that VA is “required to consider the veteran’s entitlement, on any basis consistent with the claim,
to any benefit which could flow from a determination of service connection and to which
entitlement is reasonably raised on the record”).
Recently, in Shea v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that although 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. . . .[I]n deciding what disabilities, condition, symptoms, or the like the claim-stating documents are sympathetically understood to be identifying, VA must look beyond the four corners of those documents.
926 F.3d 1362, 1368-69 (Fed. Cir. 2019).
The Board’s determination of the proper effective date for a grant of service connection,
including its underlying assessment of whether the claimant filed an informal claim, is a finding
of fact that the Court reviews under the “clearly erroneous” standard set forth in 38 U.S.C.
§ 7261(a)(4). See Brokowski, 23 Vet.App. at 85; 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)).
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 an adequate statement of reasons or bases that
enables the claimant to understand the precise basis for that determination and facilitates review
in this Court. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The appellant asserts that the Board clearly erred when denying the appellant’s claim for
an earlier effective date and that the Board provided insufficient reasons for finding that the
August 28, 1987, submission was not an informal claim for service connection. Appellant’s Brief
(Br.) at 9. He asserts that he was not required to state that his submission was a new claim or a
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claim to reopen and that any ambiguity in a filing that could be construed as an informal claim
must be resolved in his favor. Id. at 10 (citing Moody, 360 F.3d at 1310).
The Secretary responds that the Board correctly determined that the appellant’s
August 1987 statement was not an informal claim to reopen a previously denied claim for service
connection for a nervous condition. Secretary’s Br. at 5. He asserts that the record “makes
abundantly clear” that the appellant’s August 1987 statement did not identify any intent on the
appellant’s part to seek service connection for a psychiatric disability. Id. at 8. He argues that
“everything surrounding []his statement indicates that the only intent [the] [a]ppellant had in
submitting this statement . . . was with respect to his pursuit of an extension of the [d]elimiting
[d]ate for his education assistance benefits.” Id. at 10.
The issue before the Court is whether the appellant’s August 28, 1987, submission should
have been sympathetically read to encompass a claim to reopen service connection for a nervous
condition, as well as his claim to extend his delimiting date for educational benefits. See Ingram
v. Nicholson, 21 Vet.App. 232, 255-56 (2007) (holding that VA’s duty to sympathetically read
submissions “includes a duty to apply some level of expertise in reading documents to recognize
the existence of possible claims that an unsophisticated pro se claimant would not be expected to
be able to articulate clearly”). In this respect, the Court finds that the Board provided an inadequate
statement of reasons or bases for finding that the appellant’s August 28, 1987, submission did not
constitute a claim to reopen service connection for a nervous condition. 38 U.S.C. § 7104(d)(1);
Gilbert, 1 Vet.App. at 52. The Board discussed the appellant’s August 28, 1987, submission,
noting that the appellant “clearly indicated” that he “sought a change of his delimiting date for
education benefits” and while he attributed his nervous condition to service, it was not evident that
he “intended” to reopen the previously denied service-connection claim. R. at 10. However, the
Court finds that the Board erred in failing to consider VA’s duty to sympathetically read pro se
veterans’ submissions. See Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); Ephraim v. Brown,
5 Vet.App. 549, 553 (1993). The Court has recognized this particular obligation because “there
would be no need for the duty to sympathetically read pleadings if pro se claimants had
encyclopedic knowledge of veterans law.” Ingram, 21 Vet.App. at 256. The Board, while noting
that it was clear that the appellant did not intend to reopen his previously denied service-connection
claim, did not discuss VA’s duty to read his filing sympathetically. R. at 2-13. Though the
Secretary contends that the Board properly concluded that the appellant’s statement did not reflect
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any intent to file a claim to reopen, he does not address how a sympathic reading of the appellant’s
filing would affect the finding of intent (or no intent). Secretary’s Br. at 8. The Board’s failure to
provide an adequate statement of reasons of bases frustrates judicial review. See Gilbert,
1 Vet.App. at 52.
The Board’s analysis is also deficient in that the Board relied on the appellant’s
representation when determining whether he had submitted an informal claim. R. at 12. The
Board stated that, concerning the appellant’s contention that he was sick, the appellant was
“represented throughout the time period in question and that his representative had been copied on
letters from the regional office related to the request for an extension of the delimiting date,” citing
VA letters from March 1987, August 1987, and September 1988. Id. As pointed out by the
appellant, the Federal Circuit has held that representation by a service organizational aide is not
equivalent to representation by a licensed attorney, and is insufficient to disqualify a veteran as a
pro se claimant. Appellant’s Br. at 12 (citing Cromer v. Peake, 552 F.3d 1362, 1369 (2009); Cook
v. Brown, 68 F.3d 447, 451 (Fed. Cir. 1995)).
Concerning the remedy in this case, the appellant requests reversal. Appellant’s Br. at 14.
Reversal is warranted only when the Board has performed the necessary fact finding and explicitly
weighed the evidence and the Court is left with the definite and firm conviction that a mistake has
been committed. Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013); see Gutierrez
v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy when the only
permissible view of the evidence is contrary to the Board’s decision.”). Because the Board did not
address VA’s duty to sympathetically review an appellant’s filing, remand is required for the Board
to provide an adequate statement of reasons or basis for finding that an effective date earlier than
May 21, 2002, for the award of service connection for schizophrenia is not warranted. 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”).
On remand, the appellant is free to present additional argument and evidence to the Board
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). The Court reminds the Board that “[a] remand
is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher
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v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the March 16, 2018, Board decision is SET ASIDE
and the matter is REMANDED for readjudication consistent with this decision.
DATED: August 15, 2019
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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