Veteranclaims’s Blog

January 18, 2022

Single Judge Application; Lacoste v. Wilkie; In reviewing a pro se claimant’s request to reopen a claim, the Court should consider “what diagnoses, conditions, or illnesses can reasonably be understood as included” in the request. Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020); see Lacoste v. Wilkie, 775 F. App’x 1007, 1012 (Fed. Cir. 2019) (explaining the role of intent in determining what conditions should be considered within the scope of a claim);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1854
SAMUEL HURD, III, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: Veteran Samuel Hurd, III appeals a November 14, 2019, Board of Veterans’ Appeals decision that remanded, among others, a claim for service connection for post-traumatic stress disorder (PTSD).2 Mr. Hurd disagrees with the Board’s basis for remand of the PTSD claim because he argues that the Board should have considered his November 2017 claim as a request to reopen a claim for schizoaffective disorder (schizophrenia) as well as a service
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-21 (Jan. 4, 2021).
2 The Board granted a service connection claim for Parkinson’s disease, claimed as secondary to contaminated water exposure at Camp Lejeune. This is a favorable decision and the Court is without authority to review it. See Jernigan v. Wilkie, 809 F. App’x 927, 929 (Fed. Cir. 2020) (“[T]he Veterans Court lacks jurisdiction over Board decisions that are favorable to the veteran.”). The Board remanded several other claims: a claim for service connection for bilateral hearing loss; gastroesophageal reflux disease; tinnitus, to include as secondary to contaminated water exposure at Camp Lejeune; tremors; special monthly compensation based on the aid and attendance of another person and housebound status; bilateral hip disability, to include as secondary to service-connected right knee disability; bilateral neuropathy of the lower extremities, to include as secondary to contaminated water exposure at Camp Lejeune; bilateral neuropathy of the upper extremities; bilateral shoulder disability; an increased rating claim for a right knee disability greater than 10% from December 5, 2013, to January 9, 2017, and greater than 30% after January 9, 2017, excluding periods of a total rating from January 9, 2017, to March 1, 2018, and April 9, 2018, to June 1, 2018; and a petition to recognize D.V.S. as the dependent child of the veteran for VA benefits purposes. Since remands are not final decisions of the Board, the Court has no jurisdiction over the issues sent back for readjudication. See Martinez v. Wilkie, 31 Vet.App. 170, 173 n.2 (2019).
2
connection claim for PTSD.3 The question on appeal is whether the Board erred in limiting its analysis to service connection for PTSD. Because the Board properly determined that it lacked jurisdiction over Mr. Hurd’s claim for schizophrenia, the Court will affirm.
I. ANALYSIS
Mr. Hurd served on active duty from 1975 to 1982. In December 2013, Mr. Hurd, who was pro se for the majority of this appeal, filed for service connection for, among other claims, depression, bipolar, and schizophrenia.4 The following year, in March 2014, a VA regional office (RO) denied all three claims because there was no evidence in the veteran’s service treatment records indicating any complaints of, treatment for, or diagnosis of, these disabilities.5 The RO noted that Mr. Hurd’s separation examination was normal and noted no psychiatric problems.6 Mr. Hurd did not appeal the decision and it became final.
At an August 2017 VA examination, the veteran was diagnosed with PTSD and schizoaffective disorder.7 Two months later, in November 2017, Mr. Hurd filed a claim for PTSD only, which the RO subsequently denied for lack of evidence of a PTSD diagnosis.8 The same month, Mr. Hurd filed a request for reconsideration of the PTSD claim.9 The request made no mention of the schizophrenia claim. In March 2018, the RO denied Mr. Hurd’s request for reconsideration, indicating again that there was no evidence of treatment for, or a diagnosis of, PTSD in service.10 Mr. Hurd filed a Notice of Disagreement.11
In the decision on appeal, the Board acknowledged that, per Clemons v. Shinseki, a service connection claim for a specific psychiatric disability generally encompasses other psychiatric disabilities.12 Nevertheless, the Board limited its jurisdiction to Mr. Hurd’s November 2017 claim
3 Appellant’s Brief (Br.) at 5.
4 Record (R.) at 13,936-39.
5 R. at 12,713-16.
6 R. at 12,714.
7 R. at 440.
8 R. at 7191, 4924.
9 R. at 4889-90.
10 R. at 4924.
11 R. at 3147-50.
12 R. at 7 (citing Clemons v. Shinseki, 23 Vet.App. 1 (2009)).
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for PTSD only because the 2013 claims for depression, bipolar, and schizophrenia were decided and became final in 2014 when Mr. Hurd did not appeal the RO decision.13
The Secretary argues that the Court lacks jurisdiction to consider Mr. Hurd’s argument that the Board should have considered his November 2017 service connection claim for PTSD as including a request to reopen a claim for schizophrenia because the Board remanded the PTSD claim and a remand is a nonfinal decision.14 At the outset, the Court disagrees with the Secretary that Mr. Hurd’s argument should be categorically dismissed for lack of jurisdiction. The Court’s jurisdiction is limited to reviewing decisions of the Board.15 But it always has the jurisdiction to assess its own jurisdiction.16 This includes “the power to review a determination by the Board that it lacks jurisdiction over a particular claim.”17 Thus, contrary to the Secretary’s position, the Court has the authority to take up Mr. Hurd’s argument that the Board erred when it limited its jurisdiction to his claim for PTSD.
Turning to Mr. Hurd’s argument, the Court finds that the Board appropriately limited its jurisdiction to the PTSD claim and disagrees with Mr. Hurd’s contention that, per Clemons, the Board should have treated his November 2017 claim as a request to reopen his schizophrenia claim, in addition to a claim for PTSD.
Clemons provides guidance for VA to interpret the filings of pro se claimants and instructs VA to afford lenity to a veteran’s filings where he or she fails to enumerate precisely the disabilities included within the bounds of the claim.18 In reviewing a pro se claimant’s request to reopen a claim, the Court should consider “what diagnoses, conditions, or illnesses can reasonably be understood as included” in the request.19 But this doesn’t require VA to read the mind of the claimant; only to explore “those conditions which may be reasonably considered within the scope of the claim.”20
13 Id.
14 Secretary’s Br. at 5.
15 38 U.S.C. § 7252(a).
16 King v. Nicholson, 19 Vet.App. 406, 409 (2006).
17 Id.
18 Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020).
19 Id.; see Lacoste v. Wilkie, 775 F. App’x 1007, 1012 (Fed. Cir. 2019) (explaining the role of intent in determining what conditions should be considered within the scope of a claim)
.
20 Murphy, 983 F.3d at 1319; see Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020) (holding that a
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This guidance from Clemons doesn’t help Mr. Hurd in this case. Although a “claimant’s intent in filing a claim is paramount to construing its breadth,” it is not incumbent on the Agency “to read the mind of the claimant.”21 Here, Mr. Hurd’s November 2017 service connection claim for PTSD cannot reasonably be interpreted as a request to reopen a claim for schizophrenia. Nothing in his statement suggests that he was also seeking to reopen a claim for schizophrenia; he clearly limited the November 2017 submission for benefits to a PTSD claim and articulated as such when he stated on the form only, “PTSD.”22 It is moreover telling that Mr. Hurd intended to limit his service connection claim to PTSD because he was diagnosed with both PTSD and schizophrenia in August 2017—two months before he filed his service connection claim for PTSD. It would seem then that had Mr. Hurd intended to file a request to reopen the schizophrenia claim, he would have stated as such just as clearly as he indicated “PTSD” on his November 2017 submission.
Moreover, Clemons cautions against broadly reading its analysis in the way Mr. Hurd is doing here. Clarifying the scope of its holding, the Court advised that “a different result is reached when the evidence supports the service connection of a disability, but there is no indication the claimant was seeking benefits for that disability.”23 In this type of circumstance, the Court reasoned, the requisite intent to seek disability compensation for a specific condition would not be present. Simply put, the Court finds that Mr. Hurd’s claim for PTSD could not be reasonably read to include a request to reopen for schizophrenia as there is simply no indication, based on a review of the record and Mr. Hurd’s November 2017 submission, that he intended to include a request to reopen. And it is not the obligation of the Court to “read the mind of the claimant” to find otherwise.24 Thus, the Court finds that it is reasonable to conclude that Mr. Hurd intended to limit his claim to one for PTSD as there is simply no indication that this specific claim included a request to reopen the schizophrenia claim.25
veteran’s claim must identify, “at least at a high level of generality,” the sickness, disease, or injuries for which compensation is sought and that VA’s duty to assist in developing claims only applies once VA “comprehends the current condition [up]on which the claim is based”).
21 Clemons, 23 Vet.App. at 5.
22 R. at 7191.
23 Clemons, 23 Vet.App. at 7.
24 Clemons, 21 Vet.App. at 5.
25 R. at 4889-90.
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Finally, other than a broad reading of Clemons that the Board should have construed his November 2017 claim as a request to reopen for schizophrenia, the veteran points to no statutory or regulatory requirement why the Board had an obligation to do so.
Because it is not apparent that Mr. Hurd’s November 2017 claim for PTSD included a request to reopen a claim for schizophrenia, the Court finds that the Board properly limited its jurisdiction to the PTSD claim.
II. CONCLUSION
Having considered the parties’ briefs, the record, and the relevant law, the Court AFFIRMS the November 14, 2019, Board decision.
DATED: April 21, 2021
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)

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