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January 3, 2022

Single Judge Application; taken together Shea, 926 F.3d at 1368-69; Sellers, 30 Vet.App. at 161; The Federal Circuit therefore held 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).” Id. at 1370.; Taken together, Sellers and Shea direct VA to examine the documents submitted with a formal claim for service connection for a specifically listed disability or disabilities to determine whether that claim also includes an informal claim for service connection for an unlisted disability. See Shea, 926 F.3d at 1368-69; Sellers, 30 Vet.App. at 161;

Filed under: Uncategorized — Tags: — veteranclaims @ 2:51 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4420
FRAZIER FOREMAN, APPELLANT,
V.
ROBERT L. WILKIE,
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: Self-represented veteran Frazier Foreman appeals a June 29,
2018, Board of Veterans’ Appeals (Board) decision denying entitlement to an effective date earlier
than September 23, 2008, for the grant of service connection for post-traumatic stress disorder
(PTSD). Record (R.) at 7-10.1 For the reasons that follow, the Court will set aside that portion of
the June 2018 Board decision and remand that matter for readjudication consistent with this
decision.
I. FACTS
Mr. Foreman served on active duty in the U.S. Army from August 1970 to August 1972,
including service in Vietnam. R. at 3015. The facts and procedural history of this case are set
forth in detail in the Court’s decision in Foreman v. Shulkin, 29 Vet.App. 146, 147-50 (2018).
However, a summary of the relevant facts follows.
1 In the same decision, the Board awarded an earlier PTSD effective date of September 23, 2008. R. at 7-9.
Because this determination is favorable to Mr. Foreman, the Court will not disturb it. See Medrano v. Nicholson,
21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant made by
the Board pursuant to its statutory authority.”).
2
Immediately following service in August 1972, the Department of the Army filed a VA
Form 21-526e, Application for Compensation or Pension at Separation from Service, on Mr.
Foreman’s behalf. R. at 817. The cover letter for the filing directed VA’s attention to attached
separation documents and service medical records (SMRs), id., and the Form 21-326e specifically
listed “fungus or skin condition” and “back pain” as the conditions for which VA benefits were
being sought. R. at 3013. The supporting documents submitted by the Army included a December
1971 treatment record reflecting complaints of irritability with others, loss of confidence, and fear
that he would not be satisfied when he returned home to his family. R. at 1747. The impression
at that time was “No psychopathology,” but it was noted that he would be referred to the mental
hygiene clinic if the problems persisted. Id. The submitted SMRs also contained an August 1972
Report of Medical History at separation, in which the veteran indicated that he currently had or
had a prior history of frequent trouble sleeping, depression and excessive worry, and nervous
trouble. R. at 1749. The separation examiner diagnosed a mild nervous condition. R. at 1751.
Mr. Foreman underwent a VA medical examination in February 1973 and complained of,
inter alia, a nervous condition, rash, and constant back pain. R. at 2979. The next month, a VA
regional office (RO) granted service connection for lumbosacral strain, tinea versicolor of the trunk
and arms, and residuals of a fracture of the right ring finger metacarpal. R. at 2975-76. Although
the RO referenced the veteran’s separation examination report, it did not discuss any other
disabilities, including the mild nervous condition diagnosed at that examination. See id. The
veteran first sought VA treatment for psychiatric problems in September 2004. R. at 1998. In
April 2005, he screened positive for PTSD, R. at 1753, and in July 2007, he was diagnosed with
that condition, R. at 2014.
In September 2008, Mr. Foreman filed a claim for service connection for PTSD, R. at 1969-
70, which was denied by the RO in September 2010, R. at 1684-88. He timely disagreed with that
decision, R. at 1667-78, and was ultimately granted service connection for PTSD effective March
22, 2011, the date of a VA examination that diagnosed PTSD related to service, R. at 963-66,
1576-80. The veteran timely disagreed with the assigned effective date, R. at 932-46, and
subsequently perfected an appeal of that issue to the Board, R. at 853-65. In August 2015, the
Board awarded an earlier PTSD effective date of July 13, 2010, the date of an amendment to
38 C.F.R. § 3.304(f). R. at 731-38. Mr. Foreman appealed to the Court, which set aside the Board
3
decision and remanded for consideration of an earlier effective date. R. at 153-63; see Foreman,
29 Vet.App. at 150-54.
In the June 2018 decision currently on appeal, the Board awarded Mr. Foreman an earlier
PTSD effective date of September 23, 2008, the date of his claim. R. at 9. The Board denied
entitlement to an earlier effective date because it determined that, although he was diagnosed with
PTSD prior to September 23, 2008, he did not file a claim for benefits before that date. Id. One
month later, the veteran filed a motion for reconsideration by the Board Chairman, which was
denied in April 2019. R. at 1-3. This appeal timely followed.
II. JURISDICTION & STANDARD OF REVIEW
Mr. Foreman’s appeal is timely and the Court has jurisdiction to review the June 2018
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination of the proper effective date is a finding of fact that the Court
reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See
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 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 v. Derwinski, 1 Vet.App. 49, 57 (1990). 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).
4
III. ANALYSIS
In his informal brief, which the Court construes liberally, see De Perez v. Derwinski,
2 Vet.App. 85, 86 (1992), Mr. Foreman generally argues that the Board clearly erred in finding
that he was not entitled to an effective date earlier than September 23, 2008, because the claim that
the Army filed on his behalf in August 1972, which included SMRs reflecting complaints and
diagnoses of a nervous condition, constituted an informal claim for service connection for an
acquired psychiatric disorder, including PTSD, that was pending and unadjudicated in September

  1. Appellant’s Brief (Br.) at 1-7. Accordingly, he asks the Court to reverse the Board decision
    and award him a PTSD effective date of August 18, 1972, the day after separation from service.
    Id. at 7. The Secretary concedes that the Board provided inadequate reasons or bases for its
    decision because it did not address the veteran’s informal claim argument, which he previously
    raised before the Board and the Court, and did not discuss the potentially favorable SMRs included
    with the August 1972 claim. Secretary’s Br. at 7-9. However, the Secretary asserts that remand,
    rather than reversal, is the appropriate remedy for that error because the Board has not yet
    conducted the initial fact-finding necessary to adjudicate the issue. Id. at 9, 12. In his reply brief,
    Mr. Foreman reiterates his arguments for reversal. Reply Br. at 2-5.
    Under the legacy appeals system applicable to Mr. Foreman’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) (2017); see 38
    C.F.R. § 3.400 (2018). For a claim filed within one year of discharge or release from service, the
    effective date of an award of disability compensation is the day after discharge or release. 38
    U.S.C. § 5110(b)(1) (2017); see 38 C.F.R. § 3.400(b)(2)(i) (2018). 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 must evince an intent to apply for benefits and
    identify the benefits sought. See Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Sellers v.
    Wilkie, 30 Vet.App. 157, 162 (2018); 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
    5
    v. Principi, 360 F.3d 1306, 1310 (Fed. 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 facts of Mr. Foreman’s case are similar to two recent precedential decisions from this
    Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In the first of those
    decisions, Sellers, this Court held that “a general statement of intent to seek benefits, coupled with
    a reasonably identifiable in-service medical diagnosis reflected in service treatment records in
    VA’s possession prior to the RO making a decision on the claim[,] may be sufficient to constitute
    a claim for benefits.” 30 Vet.App. at 161. The veteran in Sellers underwent psychological testing
    in service and was diagnosed with a mental disorder that was characterized as not severe enough
    to require discharge from the military. Id. After service, he filed a claim for service connection
    that not only listed several physical disabilities, but also requested service connection for
    “disabilities occurring during active duty service.” Id. VA developed and adjudicated claims for
    service connection for the listed physical disabilities but not a mental disorder. Id. Many years
    later, the veteran filed a formal claim for service connection for a mental disorder, which was
    granted by VA with an effective date commensurate with the later filed claim. Id. at 161-62. When
    he appealed that effective date to the Court, we held that, consistent with VA’s duty to
    sympathetically construe claims for benefits, “VA may not ignore in-service diagnoses of specific
    disabilities, even those coupled with a general statement of intent to seek benefits, provided those
    diagnoses are reasonably identifiable from a review of the record.” Id. at 163. The Court explained
    that “[w]hether service treatment records reasonably identify a claimed disability is a fact-specific
    inquiry” and remanded for the Board to conduct that inquiry in the first instance. Id. at 161.
    The Federal Circuit subsequently expanded on these principles in Shea. Like the veteran
    in Sellers, the veteran in Shea was diagnosed with a mental disorder in service; however, when she
    filed a formal claim for benefits, she specifically identified physical disabilities stemming from an
    in-service accident and generally requested “service connection for disabilities.” 926 F.3d at 1364-
    65 (alterations omitted). Almost a year later, she filed a claim expressly requesting service
    connection for a mental disorder and, when VA granted that claim, it assigned an effective date as
    of the date of that later filing. Id. at 1365-66. On appeal, the Federal Circuit explained:
    6
    [W]hile 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,
    conditions, symptoms, or the like the claim-stating documents are sympathetically
    understood to be identifying, VA must look beyond the four corners of those
    documents when the documents themselves point elsewhere—here, to medical
    records.
    Id. at 1368-69. The Federal Circuit therefore held 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).” Id. at 1370.
    Taken together, Sellers and Shea direct VA to examine the documents submitted with a
    formal claim for service connection for a specifically listed disability or disabilities to determine
    whether that claim also includes an informal claim for service connection for an unlisted disability.
    See Shea, 926 F.3d at 1368-69; Sellers, 30 Vet.App. at 161
    . Given that the Board in this case did
    not conduct that analysis of the August 1972 filing, which explicitly refenced and included SMRs
    reflecting complaints and diagnoses of a mental disorder in service, the Court agrees with the
    Secretary that the Board provided inadequate reasons or bases for determining that Mr. Foreman
    had not filed a claim for service connection for an acquired psychiatric disorder prior to September
    23, 2008. Because that inquiry is inherently fact-specific, see Sellers, 30 Vet.App. at 161, the
    Court also agrees that remand, rather than reversal, is the appropriate remedy in this case. See
    Bankhead v. Shulkin, 29 Vet.App. 10, 23 (2017); see also Deloach v. Shinseki, 704 F.3d 1370,
    1380 (Fed. Cir. 2013) (explaining that reversal is appropriate only when “the Board has performed
    the necessary fact-finding and explicitly weighed the evidence” and the Court, “on the entire
    evidence, [] is left with the definite and firm conviction that a mistake has been committed”).
    Given this disposition, the Court need not address Mr. Foreman’s additional arguments,
    which, at this point, could not result in a remedy greater than remand. He is free on remand to
    present those arguments, as well as any additional arguments and evidence pertinent to the
    effective date issue, 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 v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
    in an expeditious manner in accordance with 38 U.S.C. § 7112.
    7
    IV. CONCLUSION
    Upon consideration of the foregoing, the portion of the June 29, 2018, Board decision
    denying entitlement to an effective date earlier than September 23, 2008, for the grant of service
    connection for PTSD is SET ASIDE and that matter is REMANDED for readjudication consistent
    with this decision.
    DATED:
    Copies to: March 30, 2020
    Frazier Foreman
    VA General Counsel (027)

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