Veteranclaims’s Blog

January 4, 2022

Single Judge Application; Bailey v. Wilkie, 33 Vet.App. 188, 198 (2021) (concluding that statements by a VA examiner documenting the veteran’s complaints of lymphedema as a result of the disability under review, and documenting the medical feasibility of the relationship, reasonably raised entitlement to secondary service connection for that condition).;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6855
CHRISTOPHER CIENKI, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Christopher Cienki, through counsel appeals a June 3,
2020, Board of Veterans’ Appeals (Board) decision that denied entitlement to an effective date
earlier than November 5, 2013, for the award of benefits for a psychiatric disability. Record (R.) at
2-11. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the
Board’s decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from April 1984 to October 1994.
R. at 599. In March 2011, he filed a claim for disability compensation for hearing loss, tinnitus,
and flat feet. R. at 841-62. He underwent a VA hearing loss and tinnitus examination in July 2011;
a VA audiologist noted that tinnitus impacted the appellant’s ordinary conditions of daily life and
the appellant explained to the examiner that it “interferes with his sleep, is distracting, and often
contributes to anxiety problems.” R. at 812. The following year, the appellant’s spouse submitted
a statement in support of claim in which she asserted that the appellant’s tinnitus has “caused
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insomnia, depression, [and] anxiety, which has affected his life activities.” R. at 770. In October
2013, a VA regional office (RO) granted disability compensation for tinnitus, effective March

  1. R. at 712-16, 729-32.
    The appellant, in November 2013, submitted both a VA Application for Disability
    Compensation and Related Compensation Benefits and a statement in support of claim. R. at
    710-11, 724-25. In the application, he requested secondary service connection for the effects of
    his service-connected tinnitus, including insomnia, mood changes, anxiety, and lack of
    concentration, R. at 710-11, and, in his statement in support of claim, he noted the recent award of
    benefits for tinnitus and asserted that “[a]ll of the secondary effects have been present since the
    on[]set of the service[-]connected tinnitus,” R. at 724; see id. (noting that the July 2011 VA
    examiner documented his report that tinnitus interfered with his sleep, is distracting, and
    contributed to anxiety). After he underwent a VA mental disorders examination, the RO awarded
    disability compensation for an adjustment disorder with mixed anxiety and depressed mood
    secondary to tinnitus, effective November 2013. R. at 489-94, 498-502, 508-15. The appellant
    filed a Notice of Disagreement (NOD) with the assigned effective date, asserting that it should be
    based on his March 2011 claim, and he ultimately perfected an appeal to the Board. R. at 426-27,
    475-77, 485; see R. at 445-60.
    In April 2018, the Board denied entitlement to an effective date earlier than November
    2013 for the award of service connection for a psychiatric disorder. R. at 237-44. This Court
    vacated the Board’s decision and remanded the matter for further proceedings, providing, in part,
    the following:
    [T]he Board did not address whether a sympathetic reading of the 2011 claim alone
    or in conjunction with the evidence of record raised an informal claim for secondary
    service connection. . . . [T]he appellant reported that his tinnitus “contributes to
    anxiety problems,” . . . yet the Board did not discuss why his description of the
    effects of his alleged tinnitus, when sympathetically read, were insufficient to
    indicate an intent to be compensated for all the manifestations of his disability and
    thus raise an informal claim for secondary service connection. See generally
    Morgan v. Wilkie, 31 Vet.App. 162, 167-68 (2019) (discussing secondary service
    connection as one tool available to VA to fulfill its duty to maximize benefits when
    adjudicating claims that include symptoms and effects not contemplated by the
    applicable diagnostic code for the primary condition).
    R. at 113; see R. at 109-14.
    On remand, the appellant submitted a statement to the Board in April 2020, explaining that
    when he filed his claim for tinnitus, he was “unaware as to how to navigate [his] way through the
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    maze of VA paperwork.” R. at 45. He noted that, when he underwent a VA examination, he
    explained to the examiner all the symptoms associated with his tinnitus, unaware that his anxiety,
    lack of concentration, and insomnia were the result of an adjustment disorder, because to him “it
    was all one problem.” Id.
    The Board, in the June 2020 decision now on appeal, again denied an earlier effective date.
    R. at 2-11. This appeal followed.
    II. ANALYSIS
    A. Parties’ Arguments
    The appellant asserts that the Board provided inadequate reasons or bases for its
    determination that there was no evidence of a claim for a psychiatric disability prior to November
  2. Appellant’s Brief (Br.) at 6-16. First, he argues that a sympathetic reading of the July 2011
    VA examination report, his spouse’s May 2012 statement in support, and his November 2013
    statement in support of his claim for secondary service connection reasonably raised the theory of
    entitlement to benefits for a psychiatric disability secondary to tinnitus. Id. at 10. Next, the
    appellant asserts that the Board’s reliance on Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019),
    is misplaced and that the Board erred by failing to consider whether his November 2013 statement
    should have been deemed an NOD as to the October 2013 RO decision granting service connection
    for tinnitus. Appellant’s Br. at 12-14. Finally, the appellant contends that the Board’s errors are
    prejudicial and warrant remand. Id. at 14-16.
    The Secretary disputes these contentions and further asserts that the RO’s October 2013
    rating decision became final, thus depriving the Board and the Court of jurisdiction to consider the
    appellant’s assertion that a claim for a psychiatric disability was reasonably raised in conjunction
    with his 2011 claim for tinnitus. Secretary’s Br. at 5-18. The appellant filed a reply brief,
    responding, in part, that the Board had, and the Court thus has, jurisdiction to address the proper
    effective date for the grant of benefits for a psychiatric disability secondary to tinnitus, including
    whether the claim was reasonably raised by the record during the adjudication of his claim for the
    primary condition. Reply Br. at 5-6; see id. at 1-8.
    B. Law
    An initial claim for benefits must be “considered a claim for any . . . disability that may
    reasonably be encompassed” by the claim. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)
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    (per curiam order). The scope of a claim depends on 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.” Id. In determining whether a formal
    or informal claim has been filed, the Board may not limit its analysis to the “four corners” of an
    application. Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (per curiam). Rather, VA has a
    duty “‘to fully and sympathetically develop [a] veteran’s claim to its optimum,'” Roberson v.
    Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (quoting Hodge v. West, 155 F.3d 1356, 1362
    (Fed. Cir. 1998)), which includes giving “a sympathetic reading to the veteran’s filings by
    ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and
    regulations,'” Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson,
    251 F.3d at 1384); see Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).
    Under regulations in effect in 2011, a claim of entitlement to VA benefits could be either
    “a formal or informal communication in writing requesting a determination of entitlement[,] or
    evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2011) (effective to Mar. 23,
    2015). VA regulations also required that an informal claim “identify the benefit sought.” 38 C.F.R.
    § 3.155(a) (2011) (effective to Mar. 23, 2015); see MacPhee v. Nicholson, 459 F.3d 1323, 1325
    (Fed. Cir. 2006). Therefore, “the essential requirements of any claim, whether formal or informal,”
    were “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and
    (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009); 38 C.F.R.
    § 3.159(a)(3) (2011) (defining a “[s]ubstantially complete application” in part as one that identifies
    “the benefit claimed and any medical condition(s) on which it is based”). Further, “the Board is
    required to consider all issues raised either by the claimant . . . or by the evidence of record.”
    Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
    1355 (Fed. Cir. 2009). Finally, although “[t]he mere existence of medical records generally cannot
    be construed as an informal claim,” Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006), the U.S.
    Court of Appeals for the Federal Circuit recently 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).” Shea,
    926 F.3d at 1370.
    A Board determination as to the proper effective date and whether an informal claim has
    been filed are factual findings the Court reviews for clear error. Sellers v. Wilkie, 30 Vet.App. 157,
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    163 (2018), rev’d on other grounds, 965 F.3d 1328 (Fed. Cir. 2020); Evans v. West, 12 Vet.App.
    396, 401 (1999); cf. Westberry v. West, 12 Vet.App. 510, 513 (1999) (providing that the Court may
    overturn the Board’s determination that an informal claim has not been filed only if that conclusion
    is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”). A
    finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left
    with the definite and firm conviction that a mistake has been committed.” United States v. U.S.
    Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As
    with any material issue of fact or law, the Board must provide a statement of the reasons or bases
    for its determination “adequate to enable a claimant to understand the precise basis for the Board’s
    decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995);
    see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
    C. Board Decision
    Here, the Board acknowledged the appellant’s contention that his March 2011 claim for
    disability benefits for tinnitus should also be considered a claim for his psychiatric disorder, which
    is secondary to that condition, and that his complaint to the July 2011 VA examiner of anxiety
    symptoms as a result of tinnitus could serve as a claim. R. at 6. The Board began its analysis with
    the following:
    The [appellant’s] original claim for service connection which was received in
    March 2011 did not identify service connection for a psychiatric disorder as a
    benefit being sought. That claim only indicated tinnitus, hearing loss, and flat feet
    as the disabilities being claimed. Additionally, in June 2011[,] the [appellant]
    submitted a statement stating, “I wish to withdraw the claim for hearing loss and
    pes planus, I wish to proceed only on the claim for tinnitus.” This does not meet the
    criteria for a claim as it did not identify the benefit sought (service connection for
    a psychiatric disorder).
    R. at 7. The Board then found that the appellant’s report of anxiety symptoms to the July 2011
    examiner did not serve as a claim because there was no indication of an “intent to apply for VA
    benefits for the reported symptom” and the appellant’s report did not establish a medical diagnosis.
    Id. The Board stated that “the simple existence of medical records reflecting symptoms of anxiety,
    without any communication from the [appellant] himself, cannot be construed as an intention to
    apply for service connection for a psychiatric condition.” R. at 8. Finally, the Board determined
    that, because the appellant’s claim for tinnitus included no references to evidence of a diagnosis or
    symptoms of a psychiatric disability, the appellant’s “case is distinguishable from Shea, where the
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    [appellant] referred to treatment records that showed symptoms of the later-claimed disability.” Id.
    (italics added).
    D. Discussion
    As an initial matter, the Court is satisfied that the Board had, and the Court has, jurisdiction
    to consider the proper effective date for the award of benefits for a psychiatric disability secondary
    to tinnitus, including the appellant’s contention that his claim was reasonably raised by the record
    earlier than November 2013. In that regard, it is well settled that a claim remains pending if the
    Secretary fails to act on it, and a pending unadjudicated claim may serve as the basis for an earlier
    effective date. See Ingram, 21 Vet.App. at 241 (stating that, as part of an appeal of an effective-date
    decision, an appellant may raise the fact that he or she filed an original claim for the same disability
    at an earlier date than the claim that was subsequently granted). Here, there is no indication in the
    record that the RO adjudicated a claim for a psychiatric disability prior to the July 2014 rating
    decision; rather, as noted by the Board, the appellant disagreed with the assigned effective date
    and argued that he is entitled to an earlier effective date because his claim was reasonably raised
    by the record earlier than his November 2013 application. The Board found that a claim was not
    raised, and the Court has jurisdiction to review that determination. See Ledford v. West, 136 F.3d
    776, 779 (Fed. Cir. 1998) (“[T]he court’s jurisdiction is premised on and defined by the Board’s
    decision concerning the matter being appealed.”).
    Turning to the crux of the parties’ dispute, the Court agrees with the appellant that the Board
    provided insufficient reasons or bases for concluding that the 2011 claim did not reasonably raise
    a claim for a psychiatric disability secondary to tinnitus. See Allday, 7 Vet.App. at 527. The Board
    appears to have again separately analyzed the specific words in the 2011 application form and the
    2011 VA examination report. R. at 7 (finding that the appellant’s original claim “did not identify
    service connection for a psychiatric disorder as a benefit being sought”); id. (finding that the
    appellant’s report to the 2011 VA examiner that his tinnitus contributes to anxiety problems “does
    not serve as a claim as there is no indication of intent to apply for VA benefits for the reported
    symptom”). By reading these documents in isolation from one another, the Board failed to
    sympathetically read all the evidence developed in connection with the tinnitus claim, including
    the appellant’s and his wife’s description of anxiety as an effect of his tinnitus, R. at 770, 812, to
    discern whether the evidence demonstrated his intent to be compensated for all the manifestations
    of his disability and whether the evidence raised an informal claim for secondary service
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    connection. See Szemraj, 357 F.3d at 373 (requiring VA to give “a sympathetic reading to the
    veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant
    laws and regulations'” (quoting Roberson, 251 F.3d at 1384)); Clemons, 23 Vet.App. at 5 (noting
    that the scope of a claim may depend on “the information the claimant submits or that the Secretary
    obtains in support of the claim” (emphasis added)); see also Bailey v. Wilkie, 33 Vet.App. 188, 198 (2021) (concluding that statements by a VA examiner documenting the veteran’s complaints of lymphedema as a result of the disability under review, and documenting the medical feasibility of the relationship, reasonably raised entitlement to secondary service connection for that condition).
    Accordingly, the Court will remand the matter for the Board to provide an adequate
    statement of reasons or bases. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the
    Board has . . . failed to provide an adequate statement of reasons or bases for its determinations,
    . . . a remand is the appropriate remedy.”). Given this disposition, the Court will not now address
    the remaining arguments and issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App.
    390, 395 (2009) (noting that “the Court will not ordinarily consider additional allegations of error
    that have been rendered moot by the Court’s opinion or that would require the Court to issue an
    advisory opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand,
    the appellant is free to submit additional evidence and argument on the remanded matter, including
    the specific arguments raised here on appeal, and the Board is required to consider any such
    relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that,
    on remand, the Board must consider additional evidence and argument in assessing entitlement to
    the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
    The Court reminds the Board that “[a] remand is meant to entail a critical examination of the
    justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board
    must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
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    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s June 3,
    2020, decision is VACATED, and the matter is REMANDED for further proceedings consistent
    with this decision.
    DATED: November 3, 2021
    Copies to:
    Christopher F. Attig, Esq.
    VA General Counsel (027)
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