Jernigan: An Earlier Effective Date or Why Didn’t She File a Formal Application

Betzaida P. Jernigan v. Eric K. Shinseki, Opinion Number 10-1226, decided June 19, 2012 involved a veteran’s claim for an earlier effective date.

The veteran had submitted a Form 21-4138, Statement of the Claim in 1995.  And within a month the VA sent her a letter with Claim Application, Form 21-526, and asked that she complete and return the application.  Nothing happened then for 6 years, until 2001, when the veteran submitted the Claim Application.  The VA granted service-connection with an effective date of the 2001 application submission.

The veteran sought an earlier effective date, back to the 1995 informal claim.  The VA relied on 38 CFR Section 3.155(a), which states that “upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.”  The veteran argued that 3.155(a) is an improper VA interpretation of the law.

The Court found the VA can require a formal application as a valid exercise of the VA’s rulemaking authority.  Id. at *5.  The Court also considered the veteran’s argument that there is no statutory basis for the one-year time frame within which to file a formal application.  They determined the one-year time frame is not the creation of an additional requirement and is not arbitrary, capricious or manifestly contrary to the statute. 

Finally, the Court also considered an argument that the effective date as defined in Section 5110(a) does not require a formal application and that the informal application here triggered the effective date statute.  The court determined that since the application was not in the form prescribed by the VA, the application is considered incomplete.  It went on to say that “in most cases, the return of the formal application form controls the determination of the proper effective date, should benefits be awarded; that is, if it is returned within one year, the effective date is the date of the informal claim, and if it is not, the effective date is the date that it is returned.”  Id. at *11.

The veteran also made a duty to notify argument (VA letter did not say what happens if not submitted within one year), but he Court did not reach the question of whether a duty to notify of the one year time frame is required because nowhere in the record did the veteran indicate she relied to her detriment on the misleading notice.

The result strikes me as essentially fair.  It would be asking a lot to let a veteran send in an informal claim and then do nothing for 6 years (after being sent a letter requesting a completed application) before reapplying and asking for the earlier effective date.  However, I am concerned about the Court’s reasoning regarding the duty to notify (the veteran apparently has to prove reliance to her detriment).  I am also sympathetic in that the veteran initially argued she never received the 1995 VA letter but abandoned that argument before the Court (probably because of a presumption of it being sent).

Overall, this case should be a reminder that you cannot ignore the VA letters that come to you and that you have a responsibility to fill out a formal application (21-526).

Decided by Judges Hagel, Davis and Schoelen.