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.

Burden: DIC and Common Law Marriages

Michele D. Burden v. Eric K. Shinseki, Opinion Number 09-3233, decided February 1, 2012 addressed a widow’s common law marriage and entitlement to DIC.

The widow was married to the veteran 2 months before his death. The VA determined she was not entitled to DIC benefits because she was not married for at least a year before the veteran’s death as required by 38 USC section 1102. The widow argued and submitted evidence of a common law marriage for over 5 years prior to the veteran’s death. The VA determined the widow and veteran was residents of Alabama and accordingly looked at Alabama law on common law marriages. Alabama law requires clear and convincing proof to establish a common law marriage and the VA decided the evidence was not clear and convincing of a common law marriage.

The widow argued the VA erred in applying Alabama’s clear and convincing proof requirement to establish a common law marriage and argued for a benefit of the doubt standard as provided by 38 USC section 5107(b).

The Court determined the clear and convincing proof standard should apply and then went on to note the VA was justified in finding no common law marriage existed. The Court noted repeated records by Mr. Burden that he was not married (including in a VA application for benefits) as well as various statements that inconsistently discussed how long they had been married. What is troubling is that most of the inconsistent statements were more than a year before the veteran’s death and could well have been cured by a common law marriage after the statements and still more than a year before the death.

This decision sheds light on a potential problem in jurisdictions that allow common law marriage. It makes clear that the VA can look to the law of the State to determine marriage and suggests a wise veteran might obviate a potential fight for his common law widow by having a ceremony now (while also creating a paper trail in case the veteran dies before a year has elapsed).

In South Carolina, if someone seeks to establish the existence of a common law marriage after the veteran’s death, section 62-2-802(b)(4) of the South Carolina Code (2009) requires proof by clear and convincing evidence. Clear and convincing evidence is that “degree of proof which will produce in the [fact-finder] a firm belief as to the allegations sought to be established. Such measure of proof is intermediate, more than a mere preponderance but less than is required for proof beyond a reasonable doubt; it does not mean clear and unequivocal.” Satcher v. Satcher, 351 S.C. 477, 483, 570 S.E.2d 535, 538 (Ct. App. 2002).

Decided by Chief Judge Kasold, and Judges Hagel and Lance.

Quattlebaum: Reopening a Denied Accrued Benefits Claim

Peggy L. Quattlebaum v. Eric K. Shinseki, Opinion Number 09-3557, decided January 15, 2012 involved a widow’s pursuit of her deceased husband’s accrued benefits.

The widow filed for accrued benefits within one year of her husband’s death and within months was told by the RO via a letter that her husband had no accrued benefits at the time of his death. She waited 5 years before notifying the RO that she had not received any accrued benefits and asked the RO to review the file for a pending claim when her husband died and award any benefits due. The RO again notified her her husband had no claim open when he died. She filed a notice of disagreement and the Board denied reasoning that because she had previously been denied accrued benefits in 2001 her 2006 claim is one to reopen and that because her claim was not filed within 1 year as required by section 5121 denied her claim.

Importantly, section 5121 says that a surviving spouse may stand in the shoes of the veteran and pursue their accrued benefits claim if they file within 1 year after the veteran’s death. Meanwhile, section 5108 says that if new and material evidence is presented regarding a previously denied claim, the VA should reopen the claim.

The Court found that “as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board’s determination that an accrued benefits claim cannot be reopened more than one year after the veteran’s death is not in accordance with law and will be reversed.” Id. at 8-9.

The Court limited the holding by noting the requirement that the claim for accrued benefits be made based on the evidence in the file at the date of death. Id. at 6. It allowed that in some rare circumstances, documents in the Secretary’s possession at the date of death might never have been presented to the agency decisionmakers. Id. at 6.

Decided by Chief Judge Kasold, and Judges Moorman and Davis.

McNair: Informed Consent

Andrea M. McNair v. Eric K. Shinseki, Opinion Number 09-1813, decided November 18, 2011 involved a remand of the veteran’s claim for compensation for neuralgia of the breast (focal nerve damage) after a surgery at a VA facility.

The patient underwent a breast reduction at a VA facility which resulted in nerve damage and pain. She sought compensation under the theory that she was not informed of the chance of this type of pain occurring as a result of the surgery. The Board found no evidence of negligence or fault in the surgery and that the patient was provided with informed consent prior to surgery. The VA pointed to a signed generic informed consent form and applied the presumption of regularity to find the patient was properly informed of risks.

The issue in this case was the signed generic informed consent form versus the patient’s testimony that she was not informed of the possibility of continuing pain post-surgery.

The Court specifically found the presumption of regularity did not apply “to the scope of the advice and information given by a doctor to his patient” and that “such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not ‘the product of a consistent, reliable procedure,’ which is the ‘root’ of the presumption of regularity in our caselaw.”

The Court noted the Board found the preponderance of the evidence was against the patient’s assertion she was not informed of the possibility of neuralgia but that the reasons or bases of the determination was inadequate.

The Court also considered if the possibility of neuralgia would have been a minor deviation. 38 CFR Section 3.361(d)(1)(ii) states a finding of informed consent will not be defeated by a minor deviation that is “immaterial under the circumstances of the case”. A deviation is minor if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.

The Court found the Board did not discuss what a reasonable person would have done or the consequences of surgery as opposed to foregoing surgery.

The case is important in that begins to circumscribe the limits of the presumption of regularity while demonstrating a failure to provide adequate reasons or bases for a decision. It also fleshes out the concept of a minor deviation from in the informed consent context.

Decided by Chief Judge Kasold, Judges Hagel and Moorman.