Bonds v. McDonough, Case Number 20-4899, decided October 5, 2022 discusses the effective date for a disability claim that was originally filed as an Section 1151 claim.
Section 1151 basically creates a VA disability compensation option for VA medical malpractice. It provides compensation for “additional disability resulting from VA medical treatment.”
In this case, the veteran had filed a Section 1151 claim in September 2013, but also filed a later disability claim. When the later disability claim was granted with a later effective date, he sought the effective date of the Section 1151 claim (September 2013). The Board denied and the Secretary argued “an impenetrable barrier separates 1151 claims from service-connection claims brought under 38 U.S.C. §§ 1110 and 1131, such that the former can never encompass the latter.” The veteran argued that Delisio applied (where a claim for a disability can encompass a claim for the causal condition of that disability).
The Court avoided the Secretary’s question by noting it did not answer the question of whether the veteran had presented an informal claim for diabetes (the court noted VA regulations in March 2015 created standardized forms and ended the concept of informal claims). The Court stated: “Properly framed, the question here does not turn on the scope of a claim—that is, whether Mr. Bonds's claim under section 1151 can be read to incorporate a claim for service connection for diabetes—but assesses whether the September 2013 filing presents an informal claim for service connection for diabetes that is distinct from any claim under section 1151.”
The Court noted the Board had not made factual findings on this matter, declined to do so in the first instance and remanded the case.
The Court also referenced Shea and Sellers and noted the Federal Circuit had created markers for determining whether a pro se filing sufficiently identified the benefit sought. The Court noted “Eschewing strict formalism, the Federal Circuit applied a "flexible standard" in which a claimant can identify a benefit sought by using "language that points to records mentioning such a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition." Using this flexible standard, the Federal Circuit held that, "where a claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability." Id. at *6-7.
However, the Court also noted the limitations of Shea found in Sellers, which “requires a measure of specificity between the claim-stating document and the condition identified in the medical records such that generalized statements of intent to receive "all possible benefits" fall short of identifying the benefit sought as including conditions noted in a claimant's medical records.” Id. at *7.
Related to the case at hand, “the Board limited its analysis to noting that 1151 claims are distinct from service connection claims without considering whether Mr. Bonds's 2013 filing raised an informal claim for service connection for diabetes in addition to his expressly raised 1151 claim. Although the Board acknowledged that the appellant "did identify as a diabetic" in that 2013 filing, R. at 12, the Board did not discuss whether that reference alone or in conjunction with the medical records identified in that document could constitute an informal claim.” Id. at *8.
The Court also limited its holding by stating:
“To be clear, our holding is a narrow one. We take no position on the Board's assertion that Anderson and prior caselaw stand for the proposition that an 1151 claim cannot encompass an 1110 claim. Indeed, Anderson does not factor in determining whether Mr. Bonds filed a separate, informal claim for service connection for diabetes. Nor do we address whether an 1151 claim can encompass a service-connection claim based on the causal-chain rule in DeLisio. We hold only that VA must determine the total number and type of claims raised in a claim-stating document and referenced evidence before addressing the scope of each individually raised claim. Moreover, even if a claim-stating document only explicitly identifies one claim, VA must search that document liberally for other less explicitly stated claims.”
Judge Toth wrote a concurring clarifying he believed an express explanation of the difference between the scope of a pleading and scope of a claim was important. “I join the panel opinion in full and write separately only to highlight a somewhat obvious point—that the scope of a claim includes the pleadings but also extends to cover matters identified through evidence obtained over the development of the claim.” Id. at *10.
He noted case law makes clear that assessing the scope of a pleading “centers on the language of the pleading and extends to various medical records to which the pleadings refer. Shea, 926 F.3d at 1369. Significantly, matters obtained during discovery generally do not factor in assessing the scope of a pleading.” Id. at *10. However, assessing the scope of a claim one the duty to assist attaches is different. “In these cases, the scope of the claim includes not only issues raised in the pleadings but also the entire evidentiary record as the case develops over time.” Id. at *10. Judge Toth then explained:
“Assessing the scope of a pleading is thus an antecedent consideration to evaluating whether the Secretary complied with the duty to assist in developing a claim or whether the Board failed to address an issue reasonably raised by the evidence of record. DeLisio tracks this sequence neatly: its central holding is that a pending claim for a specific disability can encompass a claim for the causal condition of that disability where the evidence developed during the case shows a connection to service for the causal disability. 25 Vet.App. at 53. In these cases, the fact that the claimant failed to plead the causal condition does not defeat the possibility of compensation for it as the scope of the claim expands to "reasonably encompass" the causal disability such that "no additional filing is necessary to initiate a claim for benefits for the causal disease or disability."
Id. at *11.
This case is an example of the Court refusing to making a decision, but overall I appreciate Judge Toth’s explanation or distinction between the scope of the pleadings and scope of the claim.
Per Curiam decision (Judges Allen, Meredith and Toth). Concurrence by the Judge Toth.
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