Grimes: What is Encompassed in a Claim

Grimes v. McDonough, Opinion Number 18-1017, was decided April 28, 2021 and involves what all is encompassed in a claim.

Specifically, the Court noted it referred the case to a panel to

address the interplay between VA's obligation under Clemons v. Shinseki, 23 Vet.App. 1 (2009), to broadly construe a claim consistent with a lay claimant's reasonable expectations and the general rule of Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996), vacating 5 Vet.App. 549 (1993), and Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) that separately diagnosed conditions with distinct factual bases should ordinarily be treated as separate claims. We hold that these authorities are complementary and that, pursuant to Clemons, a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO.

Id. at *2.

The Court explained the veteran applied for loss of hearing, ear aches, sinus pressure, and tinnitus.  A month later he explained he was exposed to jet noise with minimal hearing protection and his "jaw and sinus and hearing [were] never the same" after an in-service wisdom tooth extraction where a military dentist hammered and broke one of his teeth with a chisel.  Id. at *2.  The VA granted hearing loss and tinnitus claims, but denied service connection for aches, sinus pressure.  Id. at *3.  The veteran filed a NOD and he had “sinus pressure and ear pain since service and asserted that he was entitled to service connection for "sinus pressure/ear pressure blockage/and headaches" related to his duties as an aircraft mechanic and the in-service dental surgery.”  Id. at *3.  Later, he explained he had been diagnosed with hyperacusis, abnormal or painful sensitiveness to noise.

Following a Board hearing, the veteran submitted a VA physician's opinion that the veteran's hearing loss was caused by in-service exposure to jet engine noise and that "his tinnitus and hyperacusis are the results or side effects of this damage." R. at 22. The Board then issued the decision currently on appeal, which denied a compensable evaluation for bilateral hearing loss; remanded for further development a claim for a sinus disability characterized by sinus pressure, headaches, earaches, and ear blockage related to in-service dental trauma and/or removal of an ear cyst; and referred for initial development and adjudication a claim for service connection for hyperacusis.

The Court framed the issue as:

whether the veteran's July 2011 claims and ensuing appeals included entitlement to disability compensation for hyperacusis. As relevant here, VA has a duty 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.'" …. This includes "investigat[ing] the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing."

Id. at *5.

The Court explained:

Generally, "when a veteran has two diagnoses with separate factual bases, these diagnoses should be treated as two separate claims." Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs, 520 F.3d at 1336; see Ephraim, 82 F.3d at 401-02). However, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by 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." Clemons, 23 Vet.App. at 5. "[T]he claimant's intent in filing a claim is paramount to construing its breadth." Id. To effectuate that intent, "VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim," which "is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim." Murphy, 983 F.3d at 1318. "[T]he fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim."

Id. at *6.  Essentially the veteran argued the Board erred in referring the issue of hyperacusis as opposed to adjudicating it, because his claims were broad enough to encompass it. 

The Court agreed

that the Board erred in treating his request for compensation for hyperacusis as a jurisdictionally separate matter from his appealed bilateral hearing loss and sinus disability claims. When viewed sympathetically, the veteran's filings and actions since July 2011 regarding his hearing problems and "ear aches" related to in-service noise exposure and dental surgery reflect his intent to seek compensation for hyperacusis both as part of his original claims for service connection and the ensuing appeal of those claims.

Id. at *7.

The Court further explained:

When the foregoing filings and actions are sympathetically read in light of his later diagnosis of hyperacusis (i.e., painful, hypersensitive hearing), it is apparent that Mr. Grimes intended for his original claims to encompass hyperacusis, that he timely and consistently disagreed with VA's narrow construction of his claims and treatment of "ear aches" as a separate condition unrelated to his service-connected hearing problems, and that he intended his appeal to the Board to include entitlement to compensation for hyperacusis, either as part of the properly challenged evaluation for bilateral hearing loss or denial of service connection for "aches, sinus disability." See Murphy, 983 F.3d at 1318; Clemons, 23 Vet.App. at 5 (holding that VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim"). Like the veteran in Clemons, Mr. Grimes "did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition . . . causes him"—in this case, hearing problems that included hyperacusis. 23 Vet.App. at 5. Consequently, the Court concludes that the Board clearly erred in finding that Mr. Grimes's initial claims and ensuing appeals did not encompass the issue of entitlement to compensation for hyperacusis.  And because that issue was properly before the Board in the decision currently on appeal, the Court also concludes that the Board erred in referring, rather than adjudicating or remanding, entitlement to compensation for hyperacusis.

Id. at *8-9.

This case demonstrates the attempts by the VA to improperly limit the scope of a claim and willingness to contest that constraint beyond the bounds of what would be expected.  The Court helpfully acknowledges that a veteran is seeking benefits not for a particular diagnosis but the affliction a condition causes.

Opinion by C.J. Bartley and joined by Judges Pietsch and Jaquith.

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