Veteranclaims’s Blog

April 5, 2021

Single Judge application; DeLisio, 25 Vet.App. at 53 (quoting Clemons, 23 Vet.App. at 5); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009);

Single Judge:

the Clemons Court limited its holding to circumstances in which there was no prior final denial of  benefits based on the same diagnosis, Clemons, 23 Vet.App. at 8 (“[W]hen no previous and final … decision exists,…any jurisdictional constraints with regard to the scope of the claim are absent.”).

Single Judge:

As the court explained in Clemons, the U.S. Court of Appeals for the Federal Circuit’s decision in Boggs does not stand for the proposition that each separate diagnosis is always a separate claim. Clemons, 23 Vet.App.at 8-9.Instead,the proper scope of a claim must be determined by the lay veteran’s intent. Id. at 5

Single Judge:

Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(holding that an initial claim for service connection must be “considered a claim for any …disability that may be reasonably encompassed” by the claim))

Single Judge:

A claim for service connection may be expanded beyond a veteran’s lay description of a disability to include any disability “that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)(per curiam order)

Single Judge:

in the context of VA’s uniquely pro-claimant and nonadversarial claims system, the Board cannot ignore an obvious potential path to benefits when carrying out its duty to sympathetically read a claim and to investigate possible causes that may be unknown to the veteran. See Robinson, 21 Vet.App. at 553 (“As a nonadversarial adjudicator, the Board’s obligation to analyze claims goes beyond the arguments explicitly made.”); see also DeLisio, 25 Vet.App. at 53 (“[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection.”); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(per curiam order)(finding that,”[a]s a self-represented layperson at the time his claim was filed, the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition”).”Overall, the scope of the claim will be based on a sympathetic assessment of ‘the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim,’ i.e., the information gathered upon investigation.” DeLisio, 25 Vet.App. at 53 (quoting Clemons, 23 Vet.App. at 5). Given the evidence of record reflecting that VA granted service connection for other conditions on the basis of presumed herbicide exposure, the Board should at a minimum acknowledge its own internal guidance (whether binding or not) that the condition for which the appellant now seeks service connection could possibly be related to herbicide exposure.

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