King v. Shinseki: What Does It Take To Reopen A Claim?

King: What Does It Take To Reopen A Claim?

The case of Earlee King v. Eric K. Shinseki, Opinion Number 07-1214, decided May 28, 2010, affirmed a denial for an earlier effective date for service connected schizophrenia.

The veteran was initially denied service connection by the VA in 1992 and the Board in 1993. Thereafter he continued to be treated by the VA. The veteran was finally granted service connection and a 100% disability rating going back to 2000. However, medical notes from prior to 2000 discussed his schizophrenia and a specifically a 1997 medical report noted the veteran told the physician he wanted to file a claim for service connection for his schizophrenia. The veteran sought to use this notation as proof that he had reopened his claim and should be granted an earlier effective date.

The majority found these notations “failed to manifest the requisite intent to reopen a previously denied schizophrenia service-connection claim” and “the VA examiner’s suggestion to Mr. King in December 1997 that he file a service-connection claim reveals that neither party had reason to believe that any claim had been presented”.

A dissent by Judge Hagel argues that there are only three requirements to be fulfilled to file an informal claim: (1) written communication, (2) an intent to apply for benefits, and (3) identifying the benefits sought. Judge Hagel then argues that all three requirements were fulfilled in that the physician rendered the communication into writing and the veteran intended to apply for a benefit, service-connection for schizophrenia. Essentially Hagel argues it is not important who writes an informal claims, the veteran, a representative, or even as in this case a VA physician and that the majority got it wrong when it measured intent and found King did not intent to seek benefits.

The majority’s reasoning is troublingly incomplete. They denied based on the veteran lacking intent to apply for benefits because the physician told him that he should file for service-connection, this is problematic because the measure of intent is the veteran’s at the time of the request and not the physician’s intent or what the veteran should have known after being instructed by the physician. Either King intended to request benefits when talking to the VA physician or he did not.

Perhaps the Court could have gotten out of the subjective intent question by more strictly policing the “written requirement”, however, a strong counterargument could be made that the physician (due to the close doctor-patient relationship) was acting as the veteran’s representative when filling out the form. Still, I am sympathetic to the Court and the VA in that allowing VA physician notes to be used to seek an earlier effective date could open a can of worms in light of the inherently different roles of the VA physician and VA ratings adjudicator.

The lesson from the case is that if you want to reopen a denied claim, due so in writing and for that matter make sure you keep a copy.

Decision by Chief Judge Green and Judge Davis with a dissent by Judge Hagel.