EFFECTIVE DATES

AND THE DUTY TO

INFER A CLAIM

© NVLSP 2013 1

GENERAL RULE GOVERNING

EFFECTIVE DATES

The General Rule

The date the VA receives the claim, or the date that

entitlement “arose” – whichever is later.

General Rule for reopened claims is the date that the

VA receives the reopened claim (as opposed to the

original claim), or the date that entitlement to the

benefit “arose,” whichever is later.

© NVLSP 2013 2

GENERAL RULE GOVERNING

EFFECTIVE DATES

The General Rule (continued)

For claims for increase – the effective date is the

date of filing the claim for increase, or the date

entitlement arose (meaning the date the disability

increased in severity), whichever is later.

© NVLSP 2013 3

GENERAL RULE GOVERNING

EFFECTIVE DATES

The General Rule (continued)

Effective date for award of increase may go back

one (1) year prior to date of claim for increase if “it

is ascertainable that an increase in disability had

occurred” within the time frame. See 38 C.F.R. §

3.400(o)(2).

Other exceptions (including Nehmer) are discussed in

Chapter 8 of VBM

© NVLSP 2013 4

VA’S DUTY TO INFER CLAIMS

When a veteran files a claim, VA is obligated to not

only consider the claims specifically mentioned by the

veteran, but also all benefits to which the veteran might

be entitled that are supported by evidence of record.

See 38 C.F.R § 3.103(a) (2012) (“Proceedings before VA are ex parte

in nature, and it is the obligation of VA to assist a claimant in

developing the facts pertinent to the claim and to render a decision

which grants every benefit that can be supported in law while

protecting the interests of the government.”)

© NVLSP 2013 5

VA’S DUTY TO INFER CLAIMS

Once a claim is received, VA must review the

claim, supporting documents, and oral testimony

in a liberal manner.

Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.

Cir. 2001) - holding VA has a duty to determine

all potential claims raised by the evidence,

applying all relevant laws and regulations.

© NVLSP 2013 6

VA’S DUTY TO INFER CLAIMS

The Federal Circuit has held on several

occasions (Andrews, Moody, and Szemraj cases)

that VA is required to:

Give sympathetic reading to the veteran’s filings

Determine all potential claims raised by evidence

Apply all relevant laws and regulations.

© NVLSP 2013 7

VA RULES REGARDING INFORMAL

CLAIMS

VA rules provide –

“Any communication or action, indicating intent to apply

for one or more benefits under the laws administered by

the Department of Veterans Affairs, from a claimant, his

or her duly authorized representative, a Member of

Congress, or some person acting as next friend of a

claimant who is not sui juris [legally competent] may be

considered an informal claim.”

38 C.F.R. 3.155(a) (2012). See also 38 C.F.R. 21.31 (2012).

© NVLSP 2013 8

M21-1 DUTY TO CONSIDER NOTED

DISABILITIES, EVEN IF NOT CLAIMED

Manual M21-1, Ch. 46.02, Change 400, 3/28/85,

DISPOSITION OF DISABILITIES NOTED OR

CLAIMED:

a. Compensation Ratings. All disabilities claimed will be given

consideration as to service connection and be coded as a disability

rating on VA Form 21-6796.…Any additional disabilities noted will

be coded, except:

(1) Acute transitory conditions that leave no residuals.

(2) Noncompensable residuals of venereal disease.

(3) Disabilities noted only on the induction examination, or

conditions recorded by history only.

(4) Disabilities found by authorization to have not been

incurred “in line of duty”. © NVLSP 2013 9

M21-1 DUTY TO CONSIDER NOTED

DISABILITIES, EVEN IF NOT CLAIMED

Manual M21-1, Ch. 46.02, Change 400, 3/28/85, (cont.):

b. Pension Ratings. Code all claimed or noted disabilities on VA

Form 21-6796 and show the percent of disablement for each unless

the disabilities have been held to be due to the claimant’s own

willful misconduct by Administrative Decision….

c. Supplemental Ratings. (1) All previously rated service-

connected and nonservice-connected disabilities must be brought

forward on supplemental ratings on VA Form 21-6796….

© NVLSP 2013 10

M21-1 DUTY TO CONSIDER NOTED

DISABILITIES, EVEN IF NOT CLAIMED

If a disability was coded or should have been coded in a

rating decision – there is a potential claim that should

have been adjudicated.

This could give rise to an earlier effective date.

This M21-1 passage is cited in Footnote 1 of Nehmer

Final Stipulation and Order – leading to an earlier

effective date for thousands of Vietnam vets/survivors.

© NVLSP 2013 11

M21-1 DUTY TO CONSIDER NOTED

DISABILITIES, EVEN IF NOT CLAIMED

A disability should have been coded in a rating decision

if it was “noted.” In other words:

If during the development of a claim for service

connection for Disability A, VA obtained a

diagnosis of Disability B, then Disability B should

have been coded in the rating decision for

Disability A.

© NVLSP 2013 12

CURRENT M21-1MR PROVISIONS

There are several directives in the VA

Adjudication Procedures Manual, M21-1 Manual

Rewrite (Manual M21-1MR) that stress that all

inferred issues also must be adjudicated.

Several examples follow in the next few slides.

© NVLSP 2013 13

CURRENT M21-1MR PROVISIONS

Manual M21-1MR, Part III, subpart iv, 2.A.1.

states:

Review cases when they are received to determine

whether there is a proper claim and an issue within

the jurisdiction of the rating activity.

Consider the existence of proper service and

statutory or regulatory bars, and sufficiency of

evidence necessary for resolution of all issues,

including inferred ones.

© NVLSP 2013 14

CURRENT M21-1MR PROVISIONS

Manual M21-1MR, Part III, subpart iv, 6.B.2.

states:

When preparing a rating decision, the Rating

Veterans Service Representative (RVSR) must

recognize, develop, clarify and/or decide all issues

and claims…

Whether they are expressly claimed issues,

reasonably raised claims, or unclaimed subordinate

issues and ancillary benefits.

© NVLSP 2013 15

CURRENT M21-1MR PROVISIONS

Manual M21-1MR, Part III, subpart iv. 6.B.3.

states:

A subordinate issue is derived from the

consideration or outcome of related issues.

Often the primary and subordinate issues share the

same fact pattern.

© NVLSP 2013 16

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Harris v. Shinseki

Addresses the analysis that VA must undertake – in

determining whether an earlier effective date is

warranted – whether a veteran has filed a claim for

VA benefits.

© NVLSP 2013 17

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Facts:

- Vet appealed the 2002 effective date for his

connected contact dermatitis and latex allergy.

- Vet claimed that the correct effective date

should be January 1985, the date of an

examination report form (“Application for

Medical Benefits”) that he signed as part of an

Agent Orange examination.

© NVLSP 2013 18

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Facts:

- Vet claimed that this was an informal claim.

- Specifically, on the 1985 exam form – an “Agent

Orange Registry Code Sheet,” – the vet (who

served 1963-66 and 1967-70) complained of

“skin rashes on trunk and arms.”

© NVLSP 2013 19

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Facts (continued):

- The form was signed by the vet – “Application

for Medical Benefits”

- And lists vet’s dates of Vietnam service and notes

that information is requested to determine eligibility

for medical benefits.

© NVLSP 2013 20

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Facts (continued):

- In 2002, vet requested SC for contact dermatitis

and skin allergy.

- VARO granted SC and vet appealed effective

date, claiming that his effective date should be

the date of the 1985 exam report.

© NVLSP 2013 21

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Facts (continued):

- BVA rejected vet’s argument that the 1985 exam

report form constituted a claim – either formal

or informal.

- BVA concluded that the “information provided

in the form by the Veteran does not indicate an

intention to apply for compensation benefits, as

required by 38 C.F.R. § 3.155.”

© NVLSP 2013 22

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

CAVC Decision:

- On appeal, CAVC affirmed BVA denial

© NVLSP 2013 23

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

CAVC Decision:

- CAVC stated that informal claim for VA

benefits requires

1. An intent to apply for benefits,

2. An identification of the benefits sought, and

3. A communication in writing.

Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009);

See also 38 C.F.R. § 3.155(a) (stating that an informal

claim must “identify the benefit sought”).

© NVLSP 2013 24

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

CAVC Decision (continued):

- CAVC, quoting its decision in Brokowski, went

on to state that “[A] claimant's identification of

the benefit sought does not require any technical

precision.”

© NVLSP 2013 25

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

CAVC Decision (continued):

- CAVC stated that a claimant sufficiently

identifies the benefit sought “by referring to a

body part or system that is disabled or by

describing symptoms of the disability.”

© NVLSP 2013 26

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

CAVC Decision (continued):

- CAVC found no clear error in the BVA’s

determination regarding effective date- that vet’s

1985 form did not constitute a claim.

- CAVC did not see any intent to apply for

benefits, nor did the form identify the benefits

sought or describe symptoms of disability.

-

© NVLSP 2013 27

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision:

- The Federal Circuit determined that the CAVC

failed to apply the proper legal standard for

determining whether the BVA correctly

determined the earliest possible date for vet’s

benefits.

-

© NVLSP 2013 28

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision:

• Court said that under its cases, pro se pleadings

(vet not represented by atty) must be read

liberally –

• Roberson - VA has duty to fully develop any filing

made by a pro se vet by determining all potential

claims raised by the evidence.

-

© NVLSP 2013 29

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- Szemraj – VA must generously construe a pro se

veteran's filing to discern all possible claims

raised by the evidence.

- Moody - Any ambiguity in a pro se filing that could

be construed as an informal claim must be

resolved in the veteran's favor.

© NVLSP 2013 30

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- The Federal Circuit determined that the CAVC

failed to apply the proper legal standard for

determining whether the BVA correctly

determined the earliest possible date for vet’s

benefits.

© NVLSP 2013 31

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- Federal Circuit stated that under its cases, pro se

pleadings must be read liberally – Moody, Szemraj,

Roberson.

© NVLSP 2013 32

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- Court stated that even though three cited cases

involved CUE appeals, rather than direct

appeals (such as here), VA’s duty to read pro se

filings liberally is equally applicable to CUE

claims and direct appeals.

- Even if attorney present, VA’s liberal reading

requirement applicable to direct appeals. © NVLSP 2013 33

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- The Court vacated and remanded the CAVC’s

decision.

- Court stated that there was no consideration of

three cases, nor did the Court acknowledge its

obligation to require that the Board generously

construe the evidence in this case.

© NVLSP 2013 34

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

Federal Circuit Decision (continued):

- BVA’s consideration of the benefit-of-the-doubt

doctrine comes into play after development.

- It does not replace VA’s duty under Moody,

Szemraj, and Roberson to generously construe the

evidence in this case and resolve any ambiguities

in vet’s favor.

© NVLSP 2013 35

HARRIS v. SHINSEKI,

No. 2012-7111 (Fed. Cir. Jan. 4, 2013)

The Take-Away:

- When VA is considering entitlement to earlier

effective date – and therefore determining whether

claim has been filed - it must consider liberal

reading requirements to determine whether claim

indeed had been earlier filed.

- The Benefit of the Doubt rule doesn’t substitute for

liberal reading requirement.

© NVLSP 2013 36

Advocacy Advice

VA has had a longstanding duty (in M21-1 and

now M21-1MR) to liberally construe a claim and

infer/adjudicate claims even though not

expressly raised by the vet.

This duty to liberally and generously construe a

claim has been discussed extensively in case law,

most recently in Harris v. Shinseki.

© NVLSP 2013 37

Advocacy Advice

In arguing for an earlier effective date, advocates

should carefully review the vet’s file for not just

express prior claims, but for informal or inferred

claims – claims that the VA should have

construed from the evidence of record.

© NVLSP 2013 38

Questions?

© NVLSP 2013 39