What is the scope of an Informal VA Claim?
August 21st, 2019
Contributor: Chris Attig
WHAT IS THE DEEP ISSUE?
In determining whether or not a veteran's formal claim for one condition raised an informal VA claim for a second condition, the CAVC must ensure that the BVA liberally construes the record to determine if the veteran identified the second condition as part of the benefit sought. 38 C.F.R. §3.155a.
Ms. Shea filed a claim to service connect multiple physical conditions in October 2007. While that formal VA claim was pending, she sent the VA a letter identifying a medical facility and requesting the VA "please obtain these records + grant benefits." Those records, and service medical records, contained express references to psychiatric diagnoses and treatment.
Did the CAVC err when it found that the October 2007 claim did not reasonably raise an informal VA claim for a psychiatric condition because the veteran did not specifically "refer to any psychiatric conditions or symptoms attributable to her psychiatric condition" in the October 2007 claim form?
What did the FCOA Decide?
The Federal Circuit found that the CAVC applied the wrong legal standard in affirming the BVA's decision that the October 2007 claim did not constitute an informal VA claim for a psychiatric condition.
The legal standard the CAVC used was "too restrictive an interpretation of §3.155(a)," because "[t]he Veterans Court seemingly required that, to 'identify the benefit sought' " the veteran's application itself had to contain words that themselves refer to a psychiatric disability or to mental-health symptoms."
The Federal Circuit reiterated the correct legal standard required the BVA to liberally construe not just the four corners of the VA claim forms, but to look to specific medical records developed during the course of the formal or informal VA claim.
Takeaway Points for VSOs and Veterans Disability Lawyers:
1) How does the scope of the informal VA claim affect your law firm or practice?
This decision does not stand for the idea that every formal claim reasonably encompasses an informal VA claim for any medical condition diagnosed in medical records developed during the formal claim.
Instead, it did something much more vital.
The Federal Circuit's opinion chips away at the VA's belief - and apparently, now, the CAVC's belief, that an informal VA claim can only claim for disability compensation a benefit by expressly identifying a medical condition and expressly demonstrating intent to seek benefits for that medical condition. This approach, referred to as "condition particular intent," is preferred by the VA, as it shuts down a lot of earlier effective date arguments. It is, however, likely incorrect after Shea.
In your practice, when considering earlier effective dates, you want to look to the evidence of what was in the record at the time of each preceding formal and informal VA claim - starting from the original claim to the current claim - to assess the scope of each VA claim.
If any of those claims for VA benefits include diagnoses not expressly mentioned in the claims forms, look to see if the claims forms included a reference to medical records that contained the diagnosis, described symptoms that may invoke that particular condition, or in some other way implicated the medical condition.
The VA and BVA will invariably ignore Shea, as they have ignored similar Federal Circuit holdings in Roberson (2001), Szemraj (2004), Moody (2004), Browkowski (2009), Harris (2013), and a couple other cases over the years.
They will do this the way they always do: in pre 2015 claims, they will find that the veteran's formal claim for Condition #1 does not reasonably raise an informal VA claim for Condition #2 unless the veteran identified both the condition and that he was seeking benefits for that condition.
Now that you know the BVA is wrong, reach out to an attorney with experience handling these types of case at the CAVC to evaluate whether an appeal to the CAVC can lead to a different outcome.
2) Can the doctrine be expanded beyond the informal VA claim?
The informal VA claim for veterans benefits ceased to exist after March 2015 - VA regulations that changes the claims processing rules published at that time required that all claims be filed on a VA form.
However, instead of allowing veterans to file an informal VA claim, the VA allowed veterans to file a "notice of intent" to file a formal claim stating that they had an intent to apply for benefits. If the VA received the requisite info within a year, they had protected the earlier effective date.
What if the veteran's notice of intent post-March 2015 claimed, specifically, Condition A, but the medical records submitted in the development during the first year after the notice of intent to file a formal VA claim included diagnoses and treatment for other conditions which appear in the service medical records? What if in filing those medical records as part of the formal claim to complete the notice of intent the veteran included a statement requesting benefits for "the conditions diagnosed herein."?
Is that sufficient to trigger a similar analysis?
If you listen to the oral argument recording at the Federal Circuit, Judge Dyk's questioning appears to imply it might. It's not law yet, of course, but there are a lot of ways that the decision in Shea v. Wilkie can be used to assert entitlement to earlier effective dates, before or after March 2015.
At the Federal Circuit:
Federal Circuit Court of Appeals Panel:
Circuit Judge Richard G. Taranto (Opinion Author) (link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Jimmie V. Reyna (link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Dyk (linkto bio on Federal Circuit Court of Appeals website)
Veteran Representation at Federal Circuit: Isaac Chaim Belfer, Covington & Burling LLP
DOJ Attorney at Federal Circuit: Mollie Lenore Finnan
Attorney for Amicus: No Amicus filed
Date of Decision: June 20, 2019
Link to Oral Argument Recordings at Federal Circuit Court of Appeals.
Link to Decision on Federal Circuit Court of Appeals Website.
At the CAVC:
Judge Amanda L. Meredith (CAVC Memorandum Decision Author) (link to bio on CAVC website)
Veteran Representation at CAVC: Richard V. Spataro, Jr., National Veterans Legal Services Project (NVLSP) (link to profile on NVLSP website)
OGC Attorney at CAVC: Brent A. Bowker (on the briefs and merits) (link to bio on LinkedIn)
Date of CAVC Decision: December 28, 2017
Link to Memorandum Decision on CAVC Website.
At the BVA:
Regional Office: St. Petersburg, FL Regional Office
Vets’ Rep at BVA: American Legion
Board of Veterans Appeals Veterans Law Judge: Harvey P. Roberts (link to blog posts involving this BVA VLJ)
Attorney for the BVA: M. Thomas, Associate Counsel
Date of Board Decision: July 27, 2016
Categories: Veterans Law Updates
Tags: 2017 Court of Appeals for Veterans Claims Decisions, 2019 Federal Circuit Court of Appeals, 38 CFR 3.155(a), Brent A. Bowker, Circuit Judge Jimmie V. Reyna, Circuit Judge Richard G. Taranto, Circuit Judge Timothy B. Dyk, Covington and Burling LLP, harvey p. roberts, informal claims, Isaac Chaim Belfer, Judge Amanda L. Meredith, Mollie Lenore Finnan, notice of intent to file VA claim, NVLSP, Richard V. Spataro, St. Petersburg FL VARO