Sellers: What Statement is Enough to Raise a Valid Claim for Benefits

Sellers v. Wilkie, Case Number 16-2993, decided August 23, 2018 address the question of what is enough to constitute a valid claim for VA benefits.

Specifically, the veteran applied for benefits and listed several physical injuries, but also wrote “Request service connection for disabilities occurring during active duty service.”  Importantly, while in the service, the veteran was diagnosed with a dysthymia and personality disorder which had led to an emergency mental health examination, care, and even had an examination aimed at addressing his fitness for duty.

The veteran applied for benefits, but did not list his mental health issues.  He later applied for PTSD was granted service connection with a date of that PTSD application, and appealed seeking an earlier effective date back to his first mental health issues.

The Court acknowledged generally the effective date is the date the VA received a claim or the date on which entitlement arose, whichever is later.  Id. at *3.  The elements of any claim, formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.  Id.  And, the identification of the benefit sought does not require technical precision and the VA must fully and sympathetically develop a claim. The Court also noted past case law saying the “VA is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professions or by competent lay evidence at the time a claimant files a claim or during the claim's development.”  Id. at *4.

The veteran argued his general statement of an intent to seek benefits for disabilities occurring during active duty service combined with the VA’s actual possession of service treatment records is sufficient to constitute a claim.  The Secretary argued the general statement did not identify the benefit sought.

The Court’s reasoning is so well written I will quote in whole the Court’s holding:

The Secretary is correct that a general statement of intent to seek benefits for unspecified

disabilities standing alone is insufficient to constitute a claim. Yet, the Secretary's  argument misses a crucial additional factor present here: evidence of reasonably identifiable in-service diagnoses of psychiatric conditions that predate the appellant's claim were in the possession of the RO before it rendered its rating decision. The disability at issue here was identified in the record by military medical professionals well before the appellant filed his March 1996 claim, and the record was in VA's possession at the time of the initial decision.  Further, the appellant's mental health issues were well documented in those records. They reflect that the appellant's mental health was a subject of serious concern while he was in the military as he was twice diagnosed with dysthymia, subjected to extensive psychological testing, evaluated for retention purposes, and involuntarily hospitalized. It is undisputed on appeal to the Court that the appellant was diagnosed in service with a psychiatric condition. But what is not clear is whether that diagnosis was reasonably identifiable by VA adjudicators at the time of his putative formal claim in March 1996 or prior to the RO's deciding the claim. As we explain below, whether an inservice diagnosis in a veteran's service records is reasonably identifiable by VA adjudicators at the time a claimant seeks benefits or prior to the RO's deciding the claim is a factual determination for the Board.

As a general principle, VA may not ignore in-service diagnoses of specific disabilities, even those coupled with a general statement of intent to seek benefits, provided those diagnoses are reasonably identifiable from a review of the record.  But, we are cognizant of the difficulties that VA adjudicators would face when confronted with a general statement of intent to apply for benefits for conditions experienced in service. Service medical records reflecting such conditions could be voluminous and, even if they are not, the records could reflect numerous conditions. The fact finder must determine, based on the totality of the service medical record, both qualitatively and quantitatively, whether the condition at issue would be sufficiently apparent to an adjudicator.

To assist the Board in this endeavor, we provide the following thoughts on the types of factors that may be relevant to the Board's inquiry. These are not the only factors the Board may find helpful as it makes its assessment on this factual question. They are merely illustrations of factors that may be relevant to the Board's assessment. Qualitatively, for example, service medical records might contain many notes of conditions ranging from descriptions of trivial conditions (a hangnail) to full-blown diagnoses of significant illnesses (PTSD). And the record might describe certain conditions in great detail or, in contrast, in only a passing manner. Or, for example, medical records could contain vague complaints of symptoms regarding a condition but no formal diagnosis.

Quantitatively, the sheer volume of medical records may potentially be a factor in determining whether a condition would have been reasonably identifiable to a VA adjudicator. For example, the Board could decide that a single diagnosis reflected in a single page of a 2,000-page service record is not reasonably identifiable. Whether this is the case here is a factual question that the Board must address in the first instance, and the Board must provide support its determination with adequate reasons and bases.

Because the Board did not assess whether the medical record is such that the disability in question was reasonably identifiable, it did not appropriately consider this issue and, thus, remand is warranted. On remand the Board must determine whether the appellant's in-service records reflect a reasonably identifiable diagnosis of a psychiatric condition given the nature of the records at issue and, if necessary, reconsider its determination concerning the proper effective date of the appellant's MDD accordingly.

In sum, we recognize the Court's warning in Brokowski that general statements of intent "cannot be used as a pleading device to require the Secretary to conduct an unguided safari through the record to identify all conditions for which the veteran may possibly be able to assert entitlement to a claim for disability compensation," 23 Vet.App. at 89, and we emphasize that our holding here is a narrow one. Only records containing diagnoses that are reasonably identifiable from a review of the record may otherwise cure an insufficient general statement of intent to seek benefits. To continue Brokowski's metaphor, we caution that VA at most must participate in a fully guided safari.

Id. at *4-6

The Court also deferred consideration of a higher mental health rating but seemed to issue some guidance about the use of vocational expert reports.  It stated:

we caution the Board that it cannot reject a vocational  expert's opinion merely because it is not a medical opinion. Vocational experts can be necessary depending on the facts of a particular case. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). While the Board is entitled to discount or reject the medical conclusions of a vocational examiner, it cannot discount the vocational conclusions of a vocational examiner simply because he or she is not a medical professional. No law, regulation, or precedent requires that an examination be conducted by an examiner with a particular expertise or specialty. Instead, an examination must be performed by someone with the "education, training, or experience" necessary to provide an opinion. 38 C.F.R. § 3.159(a)(1).

Id. at *7.

This is an important, but limited decision.  First, the factual predicate is pretty unusual—a case involving an effective date where there was a general request for benefits and clear indications of problems in the service treatment records.  Second, it is important to note that as of September 25, 2015, the VA no longer recognizes informal claims.  Still, this case could lead to a substantial earlier effective date in some cases and it is also helpful to those using a vocational expert.

The decision was by Judge Allen and joined in by Chief Judge Davis and Judge Schoelen.

To know more about whether Thomas Andrews can help you, please visit my website.