This case involves an earlier effective date argument: specifically, whether a veteran's claim for service connection of his kidney disease was reasonably raised in an earlier claim for increased rating for gout.
The appeal was fully briefed to the Court of Appeals for Veterans Claims, and a Memorandum Decision in favor of our client was issued for the Court by Judge Margaret Bartley.
When determining the date of receipt of a claim for purposes of identifying the correct effective date, the Board must give liberal construction to a pro-se veteran’s substantive appeal, as well as a sympathetic reading of earlier filings to assess the scope of those claims.
In this case, a liberal construction of an August 2014 Substantive Appeal raises the issue of whether a 2007 claim included a claim for kidney disease. A sympathetic review of the record shows that though Appellant first wrote the phrase “kidney disease” on a 2010 supplemental application form, his 2007 application for an increased rating for gout reasonably encompassed a separate claim for secondary service connection of kidney disease shown in contemporaneous medical records to be caused by treatment of the worsening gout.
Can the Board’s decision denying an effective date earlier than 2010 for the service-connected kidney disease be in accordance with the law if it does not sympathetically assess the scope of the 2007 claim?
Because the evidence of record reasonably raised the issue of secondary service connection for chronic kidney disease due to the prescribed NSAID medication for service-connected gout, the Board was obligated to address it when adjudicating the proper effective date.
Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying an effective date earlier than August 10, 2010, for service connection for chronic kidney disease, necessitating remand.
The general rule of effective dates is that a VA Claim's effective date will be the date of the claim, or the date the entitlement arose, whichever is later. However, there are several exceptions to this rule, and one of them is the "reasonably raised" claim rule. That rule - which is more of a doctrine than a rule - says that if an earlier claim reasonably raised a claim for the same benefit just adjudicated, and has remained open and pending since it was reasonably raised, it can serve as an earlier effective date.
The BVA is required, in the first place, to do a factual inquiry to determine if a claim was "reasonably raised". They rarely do. In fact, the BVA rarely considers this rule.
The lead cases in this arena are Robinson, Moody and Szemraj - all 3 Federal Circuit cases in which the US Court of Appeals for the Federal Circuit reminds the Secretary of his obligation to liberally construe and sympathetically read claims, in particular those from pro-se veterans.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).
Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).
The Secretary rarely does this, and with each Federal Circuit "reminder", adds new "rules" to the reasonably encompassed claim doctrine.
Currently, they like to argue that the veteran has to show "intent" to "reasonably raise" a claim in the four corners of the claim form.
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OGC Attorney: Robert Schneider
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Deborah W. Singleton
Regional Office: Muskogee, Oklahama, VA Regional Office
Vets’ Rep at BVA: Veterans of Foreign Wars (VFW)
Date of BVA Decision: July 6, 2016
Date of CAVC Memorandum Decision: March 30, 2018