Wilson: The Scope of the Claim before the Board

Wilson v. McDonough, Opinion Number 19-3791, was decided January 26, 2022 and involves what happens when the VA performs minimal or inadequate VA examiantions.

The veteran was granted a 10% tinnitus rating and 0% hearing loss rating.  However, the veteran filed a Form 9 to the Board noting the VA had not tested for peripheral vestibular disorder (PVD) and noting his PVD caused dizziness and staggering.   

The VA responded by sending a form letter stating his claims had to be submitted on a standardized form.  The form letter said “nothing about whether the veteran's PVD would be included in his appeal, and it does not indicate that a separate claim for that disorder was required or that PVD would not be considered based on what he had already submitted. The veteran acknowledged the correspondence and, having "no further claims to submit," asked "that the appeal process continue."

The Board then rendered a decision which did not address the veteran’s PVD or dizziness or staggering.  The veteran appealed and focused on the need for a new examination.  The Secretary took the position that the Form 9 indicated an informal intent to seek benefits for PVD, dizziness and staggering, but the Board was under no obligation to discuss these issues because the veteran never filed a formal claim as instructed.

The Court began with Bailey v. Wilkie, 33 Vet.App. 188, 199 (2021), and noted "VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level.”  The Court in Bailey reasoned "the ordinary meaning of 'complications' in § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service connected disability," the regulation imposes a duty n the Agency to consider claims for secondary service connection if they are raised during the course of adjudicating a complete claim concerning a related, primary disability.”

The Court then found the Secretary had conceded the Form 9 request was for service connection on a direct or secondary basis.  The Court then noted the Board is required to consider all issues raised by a veteran and to construe the arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 

The Court found the Form 9 was directed to the Board and the response from the VA contained boilerplate and did not address the actual issue (PVD) in the letter.  The Court actually characterized the VA’s letter as an “uninformative form letter.”  The Court then determined a remand was necessary because:

“no one told the claimant in an understandable way that what he'd submitted was insufficient or notified him "of the information necessary to complete the appropriate application form prescribed by the Secretary." 38 C.F.R. § 3.155(b)(3) (setting forth the Secretary's responsibility "[u]pon receipt of an intent to file a claim"). Moreover, the Board did not state any reasons or bases for not addressing the veteran's February 2017 Form 9 claims.”

This is an important case that pushes back against the VA’s increasingly narrow definition of a claim and unwillingness of the Board to address issues that were not specifically addressed by the RO.  Since the AMA, the VA has become chained to forms rather than reason to the detriment of veteran.  This case should help push back against that ignorance.

Decision by Judge Jaquith and joined in by Judges Pietsch and Greenberg.

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