Veteranclaims’s Blog

January 3, 2022

Single Judge Application; Shea v. Wilkie; 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).;

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

  1. 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:
  2. 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
  3. 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.
    3
    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),
    4
    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
    5
    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
    6
    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
    7
    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
    8
    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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