Informal Claim, Judge Hagel Dissent

What we find of interest in this case is Judge Hagel's dissent and comments on "informal claims".

HAGEL, Judge, dissenting: I write separately to express my disagreement with the majority's conclusion that the Board did not err in finding that Mr. King did not submit an informal claim for benefits. The Court should vacate the Board's finding that Mr. King did not communicate an intention to reopen his claim and remand the matter to the Board to provide adequate reasons or bases for its conclusions. The majority employs the incorrect standard of review, and it should have
found that the Board provided inadequate reasons or bases for reaching its conclusion.
A. Reasons or Bases
The Board in this case simply concluded that "[t]he record does not indicate any
communication from the veteran or his representative received prior to May 15, 2000, that may reasonably be construed as an indication he was seeking to reopen his claim for service connection." R. at 4. This declaration, void of any explanation, constitutes the totality of the Board's consideration of whether Mr. King submitted an informal claim.
The Court's jurisprudence is perfectly clear that, in making a finding on any material issue of fact or law, the Board is required to provide a statement of its reasons or bases for the conclusions it reaches. See 38 U.S.C. § 7104(d)(1). In so doing, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Here, the Board stated that the dispositive question was whether the record contained any communications from Mr. King that could be construed as demonstrating an intent to reopen his previously denied claim for benefits. Because Mr. King's intent to reopen was the central question, the Board was required to discuss whether a notation in a June 1997 treatment record indicating that
12
Mr. King "wants to file a claim for service connected disability" demonstrates an intent to obtain benefits. R. at 74. At the very least, that note is material evidence that should have been discussed before the Board made its finding that Mr. King never communicated a desire to reopen his claim. Because the Board did not explain why Mr. King's June 1997 statement did not demonstrate an intent to file a claim for benefits, I cannot comprehend how the majority could find that there was a Board decision capable of review or one that Mr. King could understand. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Consequently, I would find that the Board provided inadequate reasons or bases for finding that he lacked an intent to apply for benefits. See Caluza, 7 Vet.App. at 506.
Accordingly, I dissent from the majority's opinion because I believe that the Court should have considered whether the Board provided an adequate statement of reasons or bases for its finding.
B. Intent to Make an Informal Claim
Mr. King intended to make an informal claim for benefits. The June 1997 medical record repeating Mr. King's statement to a VA official that he "wants to file a claim for service connected disability" constitutes an informal claim. R. at 74.
As the majority notes, there are three requirements that must be satisfied if the Board is to find that an informal claim has been filed. There must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski, 23 Vet.App. at 84; 38 C.F.R. § 3.155(a). All three requirements were satisfied here. Consequently, the June 1997 treatment note qualifies as an informal claim for benefits.
The first requirement is that an informal claim must be written. The purpose of requiring a writing is not to create a technical hurdle for claimants, but to allow for some precision in determining when an informal claim was made and establishing its general contents. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal Circuit stated that an informal claim must be written because "[t]o permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of the veterans benefits programs." Id. Thus, the informal claim must be written to prove that it was, in
fact, submitted.
13
In accomplishing this purpose, it is of no consequence by whom an informal claim is written, so long as it is written. The date of the informal claim in this case can be affixed with certainty, as the VA clinical specialist transferred Mr. King's intentions in June 1997. The fact that the writing was done by a VA clinician and not the claimant is irrelevant where the claimant directly communicates this information to the VA official Nor does § 3.155(a) provide a limitation in its definition of an informal claim as "[a]ny communication or action" from the claimant, a representative, a member of Congress, or a claimant's next friend. Although the communication must originate with the claimant, that does not mean that the writing must be made by any of the listed individuals. Here, there is no question that Mr. King himself made the communication to VA
when he stated that he wanted to make a claim for benefits and a VA employee simultaneously recorded that communication in an official VA document that is now contained in the claims file.
Thus, the first element of an informal claim, a writing, has been satisfied here.
The second requirement for an informal claim is that a claimant must express an intent to apply for benefits. In looking for intent, the Board is required to "interpret the appellant's submissions, broadly," although the claimant must have "asserted the claim expressly or impliedly." Brannon, 12 Vet.App. at 35.
The statement in the June 1997 VA medical record demonstrates a clear intent to apply for benefits. The VA clinical specialist wrote that Mr King "wants to file a claim for service connected disability." R. at 74. It is clear from this statement that Mr. King told a VA representative that he wanted VA benefits. Given the Board's obligation to interpret such statement's broadly, it is difficult
to envision how this statement fails to show an intent to obtain disability benefits.
The majority holds that this statement is insufficient to establish an intent to seek disability benefits because the clinical specialist then told Mr. King that he should apply for benefits. This holding misses the point; the standard is not whether the veteran had a reasonable intention to apply for benefits or took reasonable steps to act on that intention, but simply whether there was any
intention to obtain benefits. The fact that the VA representative told Mr. King to make the claim
elsewhere is of no relevance in evaluating Mr. King's intentions.
The underlying assumption seems to be that Mr. King could not have had an intention to seek
benefits because he made the request to the wrong part of VA. If Mr. King had made the same
14
statement to a Board member or decision review officer at a hearing or to anyone at a VA regional
office (i.e., "I want to file a claim for service-connected disability"), there can be no doubt that this
statement would have been seen as sufficient intent to seek disability benefits. Then why should the claimant's intent in seeking benefits be determined by the title of the VA representative to whom the statement is made? Certainly the regulation makes no such distinction, and veterans are not expected to be experts in VA's organizational structure. See Landicho, 7 Vet.App. at 50 (holding that informal claim requirements were satisfied by serving documents on the Secretary's litigation representatives).
Moreover, although it may well be within the Secretary's authority, VA has not promulgated a regulation establishing which of its employees may receive a formal or informal claim. Because I see no basis for concluding that a medical specialist at a VA medical center cannot receive an informal claim, and because Mr. King stated that he wanted to file a claim for disability benefits, I would find that, reading the claim sympathetically, Mr. King displayed sufficient intent that he was applying for benefits. See Brokowski, 23 Vet.App. at 84.
The third and final requirement for finding that an informal claim has been filed is that the claimant must identify the benefit sought. A "claimant's identification of the benefit sought does not require any technical precision." Id. Again, the Board must interpret a claimant's submission broadly and sympathetically. Id.
Here, I would find that Mr. King identified the benefit sought, as he described complaints relating to schizophrenia to a VA clinical specialist before stating that he wanted a "service connected disability." R. at 74. Mr. King was not required to specifically name the condition for which he wanted benefits, as long as he identified the symptoms. See Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007) (holding that the Secretary, not the claimant, must evaluate whether there is potential to assign benefits for described symptoms). Thus, Mr. King sufficiently identified the benefit sought.
Because Mr. King displayed an intent to seek disability benefits for schizophrenia, and because that intention is memorialized in a writing by a VA official and has since that time been in an official VA record, I would find that Mr. King made an informal claim to reopen his previously denied schizophrenia claim in June 1997. See Browkowski, 23 Vet.App. at 84. Because all of the requirements for an informal claim were satisfied, I would find that the Board's finding that there
15
was no indication that Mr. King made an informal claim was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 38 U.S.C. § 7261(a)(3)(A).
For these reasons, I respectfully dissent from the majority's decision.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Chief Judge Greene replaced Judge Farley, who issued the December 1 17, 2008, decision, but whose period
of recall service expired. See 38 U.S.C. § 7257(b)(2) (providing for period of service for recall-eligible retired judges).
THIS VERSION OF THE OPINION INCLUDES THE JUNE 4, 2010, ERRATA
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 07-1214
EARLEE KING, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Motion for Reconsideration
(Decided May 28, 2010)
John F. Cameron, of Montgomery, Alabama, was on the brief for the appellant.
Robert Schneider, with whom Richard Mayerick, Deputy Assistant General Counsel,
R. Randall Campbell, Assistant General Counsel, and Paul J. Hutter, General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge,1 and HAGEL and DAVIS, Judges.
GREENE, Chief Judge, filed the opinion of the Court. HAGEL, Judge, filed a dissenting
opinion.
GREENE, Chief Judge: Veteran Earlee King appeals, through counsel, a January 8, 2007,
Board of Veterans' Appeals (Board) decision that denied him an effective date prior to May 15, 2000,
for his award of VA service connection for schizophrenia. Mr. King argues that the Board erred by
(1) assigning him a May 15, 2000, effective date, (2) not providing an adequate statement of reasons
or bases for its decision, and (3) assigning his appeal an incorrect docket number. In a December 17,
2008, single-judge decision, the Court affirmed the 2007 Board decision. Mr. King timely filed a
motion for reconsideration or in the alternative for panel consideration. Mr. King's motion for panel
2
consideration will be granted, the Court will withdraw its December 2008 decision, and this panel
opinion will be issued in its stead. Because we hold that (1) a September 1993 VA consultation
report noting that a claimant has not appeared for a scheduled examination is not new evidence under
38 C.F.R. § 3.156, and (2) Mr. King's statements to VA health professionals expressing a wish or
desire to be service connected that are recorded in medical reports by VA physicians prepared after
the examinations do not constitute new and material evidence or informal requests to reopen a
claimant’s previously disallowed claim for service connection, the Board’s January 8, 2007, Board
decision will be affirmed.
I. BACKGROUND
Mr. King served honorably in the U.S. Army from February 1980 to October 1983. Record
(R.) at 11, 22. In February 1992, he submitted to a VA regional office (RO) a claim for VA benefits
for schizophrenia. R. at 11-14. In May 1992, the RO found that there was no evidence that Mr. King
had schizophrenia either during service or at the time he requested service connection and denied
his claim. R. at 25. He appealed and, in August 1994, the Board also denied his claim on the basis
that there was no evidence that Mr. King was diagnosed with schizophrenia within one year of his
service or that he had a current psychiatric disability that was connected to or incurred by service.
R. at 47-53. Mr. King did not appeal and that decision became final.
On May 15, 2000, Mr. King sought to reopen his claim for service connection (R. at 60) by
presenting VA medical records dated September 1993, March 1995, and June 1997 demonstrating
that he had been seen by VA health professionals during that time period (R. at 70, 74, 186). In
June 2000, after considering this evidence, the RO found that although some of the evidence
submitted was new, none was material evidence sufficient to reopen Mr. King's claim. R. at 114-15.
Mr. King appealed to the Board and presented testimony by his mother that he had suffered from
schizophrenia-like symptoms since his separation from service. R. at 136-58. On appeal, the Board
found that new and material evidence had been submitted since the August 1994 Board decision and
reopened the claim. R. at 303-11. Accordingly, the matter was remanded to the RO for additional
development.
3
In August 2004, Mr. King was granted service connection for schizophrenia with a 100%
disability rating, effective May 15, 2000, the date VA had received Mr. King's claim to reopen. R. at
428-32. He appealed the assigned effective date and, in January 2007, the Board denied him an
earlier effective date after finding that there was no "evidence or statement dated prior to the May 15,
2000, application to reopen the claim for service connection for a psychiatric disorder that can be
construed as an earlier application to reopen." R. at 4. This appeal followed.
II. ANALYSIS
A. New and Material Evidence Submitted within Appeal Period
Mr. King first argues that the findings contained in the September 1993 VA consultation
report entitle him to an earlier effective date for his schizophrenia rating. The September 1993 VA
consultation report recorded that Mr. King had missed three appointments for testing for a possible
diagnosis of schizophrenia. R. at 70. Mr. King argues that the Board erred in failing to recognize
that this evidence constituted new and material evidence that was filed with VA during the period
he was appealing the May 1992 RO denial of his claim.
Although the effective date of an award based on a claim reopened is generally the date of
receipt of the application, if new and material evidence is received within one year after the date of
mailing of an RO decision, it may be "considered as having been filed in connection with the claim
which was pending at the beginning of the appeal period" that prevents an initial determination from
becoming final. 38 C.F.R. § 3.156(b) (2009); see Young v. Shinseki, 22 Vet.App. 461, 466 (2009);
see also Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and
material evidence received within one year after RO decision rendered RO decision nonfinal);
38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal
period, "effective date will be as though the former decision had not been rendered"). Thus, if such
new and material evidence had been submitted and had not been acted upon, Mr. King’s claim could
still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (2009)
("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated");
see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending–even for
years–if the Secretary fails to act on a claim before him.").
To the extent that Mr. King asserts that 2 the 1994 Board decision ignored the September 1993 medical
treatment report, this is an argument that may constitute the basis for a motion asserting clear and unmistakable error
(CUE); that argument has no bearing on his appeal of the January 2007 Board decision. See 38 U.S.C. § 5109 (CUE
is collateral attack on final decision by RO or Board). The Court has jurisdiction only over those CUE arguments that
have been finally adjudicated by VA, and no such adjudication has been done in this case. See Vanerson v. West,
12 Vet.App. 254, 262 (1999) (“This Court does not have jurisdiction to review claims of [CUE] in the first instance.”);
see also Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE
constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise
jurisdiction over it”).
4
That, however, is not the case. New and material evidence is defined as new evidence that
either by itself, or when considered with previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The Board's determination of whether a
claimant has submitted new and material evidence is generally reviewed under the "clearly
erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. Nicholson,
19 Vet.App. 532, 533-34 (2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc).
Here, Mr. King has not established that the Board erred in failing to recognize the
September 1993 VA consultation report as new and material evidence. His argument that the
September 1993 VA examiner diagnosed him as having schizophrenia is not supported by the
evidence. A complete reading of the consultation report, which was before the Board, reveals that
Mr. King did not appear for his examination and that no testing of his psychiatric condition was
accomplished. Thus, no diagnosis of his condition could be provided.
Moreover, Mr. King's argument that evidence contained in the September 1993 VA
consultation report entitles him to an earlier effective date merely because it was "received" by VA
prior to the August 1994 Board decision is self defeating. Indeed, to the extent that this evidence
was received within the appeal period prior to the August 1994 Board decision as Mr. King argues,
it is presumed to have been considered in the Board's denial of his original schizophrenia claim.2
See 38 C.F.R. § 20.800 (2009) (appellant may submit additional evidence in connection with claim
after appeal to Board has been initiated). Accordingly, any failure by the Board to recognize the
September 1993 report as new and material evidence was not erroneous.
B. Reopening Previously Disallowed Claim
Mr. King next asserts that the documents that he submitted to VA concurrent with his
May 2000 application to reopen show prior communications to VA in which he made informal
5
requests to reopen his disallowed schizophrenia claim. He thus asserts that the Board erred in
determining that "the record does not include any communication from the veteran or his
representative received prior to May 15, 2000, that may reasonably be construed as an indication he
was seeking to reopen his claim for service connection." R. at 4. The Board's determination that a
formal or informal claim had not been filed prior to May 15, 2000, will be set aside if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." Westberry v. West,
12 Vet.App. 510, 513 (1999); see 38 U.S.C. § 7261(a)(3)(A).
Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the
same factual basis as a previously disallowed claim. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55
(2006) (holding that res judicata generally applies to VA decisions). However, the finality of a
previously disallowed claim can be overcome by the submission of new and material evidence. See
38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the claim and review the former disposition
of the claim."); Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also
Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). A claimant may submit an application
or claim to reopen a disallowed claim, at which point the Secretary, by regulation, must provide
some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs,
345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before
claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3) (2009).
Congress has granted the Secretary the authority to prescribe the acceptable forms of
applications for benefits by claimants. See 38 U.S.C. § 501(a)(2). The Secretary's regulations
provide that a claim or application is "a formal or informal written communication requesting a
determination of entitlement or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p)
(2009). The Secretary has defined an informal claim as a communication or action from the
claimant, the claimant's representative, a member of Congress, or the claimant's next friend
indicating an intent to apply for a VA benefit. 38 C.F.R. § 3.155(a) (2009). Additionally, the
Secretary has specifically prescribed that when a formal claim for benefits has already been filed,
"an informal request for increase or reopening will be accepted as a claim." 38 C.F.R. § 3.155(c).
And, quite notably, the Secretary by regulation has specifically limited the use of medical
6
examination reports as informal claims to circumstances where a "formal claim for pension or
compensation has been allowed or a formal claim for compensation disallowed for the reason that
the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157(b).
Mr. King asserts that he presented informal requests to reopen his schizophrenia claim
through statements he made to VA medical professionals documented in VA medical records in
March 1995 and June 1997. He concedes, however, that, because he was not service connected for
schizophrenia until August 2004, the September 1993, March 1995, and June 1997 VA medical
records cannot form the basis for an earlier effective date pursuant to 38 C.F.R. § 3.157(b) in their
capacity as VA examination reports alone. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed.
Cir. 2006); see also Norris v. West, 12 Vet.App. 413, 421 (1999) (discussing and explaining
interplay between §§ 3.157 and 3.155(c)); 52 Fed. Reg. 27339 (explaining that § 3.155(c) has been
cross-referenced to § 3.157 "for instructions regarding circumstances under which a report of
examination or hospitalization may be accepted as an informal claim"). For the following reasons,
we hold that the March 1995 and June 1997 statements cannot constitute informal requests to reopen
pursuant to 38 C.F.R. § 3.155(c) because they fail to demonstrate an intent to reopen a disallowed
claim.
Although § 3.155(c) does not define what manner of communication must be considered a
"request" for reopening a disallowed claim, our caselaw instructs that it is nearly synonymous to an
informal claim for compensation under § 3.155(a). See Norris, 12 Vet.App. at 421 ("the only real
benefit to a claimant that paragraph (c) provides is that the claimant need not file another formal
application for benefits as called for in 38 C.F.R. § 3.155(a)"); see also 38 C.F.R. § 3.155(a)
(requiring claimants to file formal application after informal claim is accepted and proper form is
provided). Further, we have held that an informal claim must be (1) a communication in writing that
(2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski v.
Shinseki, 23 Vet.App. 79, 84 (2009); 38 C.F.R. § 3.155(a); see also MacPhee, 459 F.3d at 1325
(holding that VA regulations require claimant to identify benefit sought and indicate intent to apply
for benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (informal claim must be in
writing); Brannon v. West, 12 Vet.App. 32, 35 (1998) (holding that before VA can adjudicate
7
original claim for benefits, "the claimant must submit a written document identifying the benefit and
expressing some intent to seek it").
On March 8, 1995, Mr. King presented for treatment at a VA medical center requesting to
see a psychiatrist. R. at 186. After his examination, the examiner prepared a VA progress note
recommending that Mr. King undergo psychological testing in order to rule out, inter alia,
schizophrenia and recorded that he was "n[ot] s[ervice] c[onnected,] but is trying." Id. On June 27,
1997, Mr. King was examined by a VA psychiatrist. R. at 74. The report from that consultation
noted that Mr. King "wants to file a claim for service[-]connected disability," and that "he filed a
claim one time but doesn't know what they did with it. He thinks they said he didn't get t[]reatment
in service." Id. The VA psychiatrist opined that Mr. King had schizophrenia and mild retardation
and suggested that Mr. King apply for service connection but counseled him that he would have to
show that during military service he had been treated for schizophrenia. Id.
These notations by VA medical professionals in March 1995 and June 1997 that Mr. King
was "trying" to obtain service connection and "wanted to file" for service connection especially at
that time, without the presentation of any evidence, failed to manifest the requisite intent to reopen
a previously denied schizophrenia service-connection claim. Compare R. at 74, 186 with
Sagainza v. Derwinski, 1 Vet.App. 575, 577-79 (1991) (holding that veteran's sister's request to VA
to reopen a claim accompanied by evidence of recent treatment for relevant condition constituted
informal request to reopen under § 3.155(c)) and Vda De Landicho v. Brown, 7 Vet.App. 42, 50
(1994) (holding that specific pleading by appellant's survivor of both notification of appellant's death
and motion to substitute, served on the Secretary through Court's pleading process, provides
"sufficient indication of [an] intention to claim accrued benefits based on the [deceased] veteran's
underlying disability.").
Moreover, the VA examiner's suggestion to Mr. King in December 1997 that he file a
service-connection claim reveals that neither party had reason to believe that any claim had been
presented or would result merely by recording Mr. King's statements in the written examination
report. See Ellington v. Nicholson, 22 Vet.App. 141, 146 (2007) (holding that no informal claim was
filed because veteran lacked intent when there was no reason to believe that application for benefits
was being filed by completing medical questionnaire), aff'd 541 F.3d 1364 (Fed. Cir. 2008). Further,
Although we do not reach the issue in this appeal, we note that nothing in 3 the regulations contemplates filing
such a claim with a VA medical professional. Indeed, VA regulations provide little guidance to a claimant as to what
entities within the VA framework are available to receive disability compensation claims and the instructions on a VA
form 21-256 (formal application for benefits) state only that a claimant should mail the application to the closest VA
office. See VA Form 21-526, pg. 5; but see 38 C.F.R. § 3.108 (2009) (officers of U.S. State Department are authorized
to act as agents of VA in foreign countries and may receive formal and informal claims). Some guidance may be gleaned,
however, from VA's structure, which is comprised of various departments within the agency. These departments include
the Veterans Health Administration, which oversees veterans' medical care, and the Veterans Benefits Administration,
which administers veterans' benefits. 38 U.S.C. §§ 301, 7301, 7701. VA physicians generally fall under the Veterans
Health Administration whose primary function is "to provide a complete medical and hospital service for the medical
care and treatment of veterans." 38 U.S.C. § 7301. The primary function of the Veterans Benefits Administration is "the
8
Mr. King's statements to the VA examiner indicate that he knew that he had previously filed a formal
application for service connection for schizophrenia and that he was uncertain whether his claim was
ever finally adjudicated. After such an acknowledgment, it would be incongruent to infer an intent
on Mr. King's part to reopen a previously denied claim for the consideration of new and material
evidence, especially since, at the time of the statements, the psychiatrist had yet to opine as to Mr.
King's psychiatric condition.
We disagree with Mr. King's argument that requiring a level of specificity for an informal
request to reopen a claim is too sophisticated a standard for a pro-claimant veterans benefits system.
The theory behind creating requirements for recognizing a document as an informal claim is that
there must be a reasonable expectation for VA to act in the manner that the claimant intended. See
Ellington, 22 Vet.App. at 146 ("VA must have some means of distinguishing between legitimate
claims and ordinary medical paperwork."); see also Kluttz v. Brown, 7 Vet.App. 304 (1994)
(informal request to reopen particular claim must be more specific than a general request for a
benefit). Indeed, VA has never been obligated to read a claimant's mind but must consider only
claims that may be "reasonably encompassed by several factors including: the claimant's description
of the claim; the symptoms the claimant describes; and the information the claimant submits or that
the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); see
Sondel v. Brown, 6 Vet.App. 218, 220 (1994) (when issue is not reasonably raised, Board is not
required to "conduct an exercise in prognostication").
In Mr. King's case, there is no reasonable expectation that VA would investigate whether new
and material evidence existed to reopen Mr. King's finally denied claim based merely on his
comments to VA examining physicians expressing a wish or desire for VA benefits.3 The record
administration of nonmedical benefits programs of [VA] which provide assistance to veterans and their dependents and
survivors." 38 U.S.C. § 7701 (emphasis added).
9
demonstrates that Mr. King was clearly aware that the RO adjudicates applications for VA benefits
as he had previously filed a claim for service connection with the RO and subsequently filed a claim
to reopen with the RO in May 2000. Mr. King did not communicate with the RO concerning this
matter in 1995 or 1997, and thus did not manifest to the RO his intent to reopen his serviceconnection
claim until May 2000. Moreover, contrary to our dissenting colleague's view that it is
of no consequence by whom an informal claim is written, VA regulations specifically define those
persons who may communicate a claimant's intent to reopen a claim on behalf of the claimant. This
list does not include VA medical professionals. See 38 C.F.R. § 3.155(a) (listing claimant's
representative, members of Congress, and claimant's next friend as persons other than claimant who
may file informal claim).
Accordingly, for the above reasons, we hold that Mr. King's statements expressing a wish or
desire to obtain service connection recorded in medical reports by VA physicians during the
March 1995 and June 1997 VA medical examinations do not constitute new and material evidence
or informal requests to reopen his previously disallowed schizophrenia claim. See Rodriguez and
Brokowski, both supra; 38 C.F.R. § 3.155(a). Therefore, Mr. King has not established that the
Board's finding that there was no evidence in the record that can be construed as an informal claim
to reopen prior to his May 15, 2000, application to reopen was an "arbitrary and capricious"
application of law to the facts of this case. See Westberry, supra. Moreover, because we have held
that the Board correctly found that Mr. King's application to reopen was submitted in May 2000, as
a matter of law Mr. King has not established that the Board erred in finding that he was not entitled
to an effective date for his schizophrenia award prior to May 15, 2000, the date he filed his claim to
reopen. See 38 U.S.C. § 5110(a) ("[T]he effective date of an award based on . . . a claim reopened
after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor."); 38 C.F.R. § 3.400 (2009) (implementing
regulation); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing
of [clear and unmistakable error (CUE), the appellant] cannot receive disability payments for a time
frame earlier than the application date of his claim to reopen, even with new evidence supporting an
10
earlier disability date."); see also Bingham v. Principi, 18 Vet.App. 470, 475 (2004) ("[I]t is well
established that the effective date for an award based on a claim to reopen is generally the date of
the claim to reopen.").
C. Reasons or Bases
Mr. King also argues that the Board failed to provide an adequate statement of reasons and
bases for its finding that the evidence of record did not raise any informal claim for service
connection. The Board must provide a written statement of the reasons or bases for its findings and
conclusions on all material issues of fact and law presented on the record; the statement must be
adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to
facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
(1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Mr. King maintains that the Board failed
to address whether Social Security records and medical records (R. at 202, 206, 288-89, 334, 738-39)
and other correspondence of record (R. at 136, 279) could be construed as a claim to reopen.
However, Mr. King has not shown how these documents, some of which postdate his assigned
effective date, are relevant to the assignment of his May 15, 2000, schizophrenia effective date. See
Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (Board not required to discuss all evidence if
its discussion of the relevant evidence supports its decision); see also Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal).
Additionally, although the Board did not specifically address whether the VA medical records
from September 1993, March 1995, and June 1997 entitle Mr. King to an earlier effective date,
because, as held above, these arguments fail as a matter of law, a remand for the Board to discuss
these documents is not appropriate. See Soyini v. Principi, 1 Vet.App. 540, 546 (1991) (strict
adherence to reasons or bases requirement is improper basis for remand where it "would result in this
Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the
veteran").
D. Docket Number Assignment
Mr. King also argues that the Board erred in assigning his claim a 2003 docket number after
it was returned to the Board pursuant to a 2001 remand. He requests that, should there be a remand,
11
his claim be docketed in a manner designed to achieve the swiftest resolution. In light of the
disposition of this matter, however, Mr. King's contention is moot.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the Board's January 8, 2007, decision is AFFIRMED.
HAGEL, Judge, dissenting: I write separately to express my disagreement with the majority's
conclusion that the Board did not err in finding that Mr. King did not submit an informal claim for
benefits. The Court should vacate the Board's finding that Mr. King did not communicate an
intention to reopen his claim and remand the matter to the Board to provide adequate reasons or
bases for its conclusions. The majority employs the incorrect standard of review, and it should have
found that the Board provided inadequate reasons or bases for reaching its conclusion.
A. Reasons or Bases
The Board in this case simply concluded that "[t]he record does not indicate any
communication from the veteran or his representative received prior to May 15, 2000, that may
reasonably be construed as an indication he was seeking to reopen his claim for service connection."
R. at 4. This declaration, void of any explanation, constitutes the totality of the Board's consideration
of whether Mr. King submitted an informal claim.
The Court's jurisprudence is perfectly clear that, in making a finding on any material issue
of fact or law, the Board is required to provide a statement of its reasons or bases for the conclusions
it reaches. See 38 U.S.C. § 7104(d)(1). In so doing, the Board must analyze the credibility and
probative value of the evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
Here, the Board stated that the dispositive question was whether the record contained any
communications from Mr. King that could be construed as demonstrating an intent to reopen his
previously denied claim for benefits. Because Mr. King's intent to reopen was the central question,
the Board was required to discuss whether a notation in a June 1997 treatment record indicating that
12
Mr. King "wants to file a claim for service connected disability" demonstrates an intent to obtain
benefits. R. at 74. At the very least, that note is material evidence that should have been discussed
before the Board made its finding that Mr. King never communicated a desire to reopen his claim.
Because the Board did not explain why Mr. King's June 1997 statement did not demonstrate an intent
to file a claim for benefits, I cannot comprehend how the majority could find that there was a Board
decision capable of review or one that Mr. King could understand. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). Consequently, I would find that the Board provided inadequate reasons
or bases for finding that he lacked an intent to apply for benefits. See Caluza, 7 Vet.App. at 506.
Accordingly, I dissent from the majority's opinion because I believe that the Court should
have considered whether the Board provided an adequate statement of reasons or bases for its
finding.
B. Intent to Make an Informal Claim
Mr. King intended to make an informal claim for benefits. The June 1997 medical record
repeating Mr. King's statement to a VA official that he "wants to file a claim for service connected
disability" constitutes an informal claim. R. at 74.
As the majority notes, there are three requirements that must be satisfied if the Board is to
find that an informal claim has been filed. There must be (1) a communication in writing that
(2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski,
23 Vet.App. at 84; 38 C.F.R. § 3.155(a). All three requirements were satisfied here. Consequently,
the June 1997 treatment note qualifies as an informal claim for benefits.
The first requirement is that an informal claim must be written. The purpose of requiring a
writing is not to create a technical hurdle for claimants, but to allow for some precision in
determining when an informal claim was made and establishing its general contents. See
Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal
Circuit stated that an informal claim must be written because "[t]o permit an oral statement to
constitute the filing of an informal claim would create serious problems in the operation of the
veterans benefits programs." Id. Thus, the informal claim must be written to prove that it was, in
fact, submitted.
13
In accomplishing this purpose, it is of no consequence by whom an informal claim is written,
so long as it is written. The date of the informal claim in this case can be affixed with certainty, as
the VA clinical specialist transferred Mr. King's intentions in June 1997. The fact that the writing
was done by a VA clinician and not the claimant is irrelevant where the claimant directly
communicates this information to the VA official. Nor does § 3.155(a) provide a limitation in its
definition of an informal claim as "[a]ny communication or action" from the claimant, a
representative, a member of Congress, or a claimant's next friend. Although the communication
must originate with the claimant, that does not mean that the writing must be made by any of the
listed individuals. Here, there is no question that Mr. King himself made the communication to VA
when he stated that he wanted to make a claim for benefits and a VA employee simultaneously
recorded that communication in an official VA document that is now contained in the claims file.
Thus, the first element of an informal claim, a writing, has been satisfied here.
The second requirement for an informal claim is that a claimant must express an intent to
apply for benefits. In looking for intent, the Board is required to "interpret the appellant's
submissions, broadly," although the claimant must have "asserted the claim expressly or impliedly."
Brannon, 12 Vet.App. at 35.
The statement in the June 1997 VA medical record demonstrates a clear intent to apply for
benefits. The VA clinical specialist wrote that Mr King "wants to file a claim for service connected
disability." R. at 74. It is clear from this statement that Mr. King told a VA representative that he
wanted VA benefits. Given the Board's obligation to interpret such statement's broadly, it is difficult
to envision how this statement fails to show an intent to obtain disability benefits.
The majority holds that this statement is insufficient to establish an intent to seek disability
benefits because the clinical specialist then told Mr. King that he should apply for benefits. This
holding misses the point; the standard is not whether the veteran had a reasonable intention to apply
for benefits or took reasonable steps to act on that intention, but simply whether there was any
intention to obtain benefits. The fact that the VA representative told Mr. King to make the claim
elsewhere is of no relevance in evaluating Mr. King's intentions.
The underlying assumption seems to be that Mr. King could not have had an intention to seek
benefits because he made the request to the wrong part of VA. If Mr. King had made the same
14
statement to a Board member or decision review officer at a hearing or to anyone at a VA regional
office (i.e., "I want to file a claim for service-connected disability"), there can be no doubt that this
statement would have been seen as sufficient intent to seek disability benefits. Then why should the
claimant's intent in seeking benefits be determined by the title of the VA representative to whom the
statement is made? Certainly the regulation makes no such distinction, and veterans are not expected
to be experts in VA's organizational structure. See Landicho, 7 Vet.App. at 50 (holding that informal
claim requirements were satisfied by serving documents on the Secretary's litigation representatives).
Moreover, although it may well be within the Secretary's authority, VA has not promulgated a
regulation establishing which of its employees may receive a formal or informal claim. Because I
see no basis for concluding that a medical specialist at a VA medical center cannot receive an
informal claim, and because Mr. King stated that he wanted to file a claim for disability benefits, I
would find that, reading the claim sympathetically, Mr. King displayed sufficient intent that he was
applying for benefits. See Brokowski, 23 Vet.App. at 84.
The third and final requirement for finding that an informal claim has been filed is that the
claimant must identify the benefit sought. A "claimant's identification of the benefit sought does not
require any technical precision." Id. Again, the Board must interpret a claimant's submission
broadly and sympathetically. Id.
Here, I would find that Mr. King identified the benefit sought, as he described complaints
relating to schizophrenia to a VA clinical specialist before stating that he wanted a "service
connected disability." R. at 74. Mr. King was not required to specifically name the condition for
which he wanted benefits, as long as he identified the symptoms. See Ingram v. Nicholson,
21 Vet.App. 232, 256-57 (2007) (holding that the Secretary, not the claimant, must evaluate whether
there is potential to assign benefits for described symptoms). Thus, Mr. King sufficiently identified
the benefit sought.
Because Mr. King displayed an intent to seek disability benefits for schizophrenia, and
because that intention is memorialized in a writing by a VA official and has since that time been in
an official VA record, I would find that Mr. King made an informal claim to reopen his previously
denied schizophrenia claim in June 1997. See Browkowski, 23 Vet.App. at 84. Because all of the
requirements for an informal claim were satisfied, I would find that the Board's finding that there
15
was no indication that Mr. King made an informal claim was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. 38 U.S.C. § 7261(a)(3)(A).
For these reasons, I respectfully dissent from the majority's decision.

Filing of NOA, VA fails to Forward to Veterans Court

HAGEL, Judge, concurring: I fully concur in the Court's decision, but I write separately to express my concern over the central issue in this case.
It has become clear to me that VA somewhat routinely holds correspondence from claimants that it determines, sometime after receipt, are Notices of Appeal to this Court. As a result, in far too many cases, the Court receives the Notice of Appeal from VA only after the 120-day appeal period has expired, permitting the Secretary to then move to dismiss the appeals for lack of jurisdiction.
See, e.g., Rickett v. Shinseki, ___ Vet.App. ___, No. 09-2493 (March 19, 2010) (VA forwarded appellant's otherwise timely Notice of Appeal to the Court more than one month after 120-day period had expired); Irwin v. Shinseki, 23 Vet.App. 128 (2009) (Board forwarded Notice of Appeal to Court more than four months after receipt and approximately one month after the 120-day period expired); Bronson v. Shinseki, No. 09-3554, 2010 WL 1507648 (Vet.App. Apr. 16, 2010) (Board forwarded appellant's otherwise timely Notice of Appeal to the regional office more than two months after
receiving it; the regional office forwarded it to the Court more than one month after the 120-day appeal period had expired); Harris v. Shinseki, No. 09-0567, 2010 WL 668926 (Vet.App. Feb. 26, 2010) (veteran informed of (otherwise timely) misfiling by VA nearly four months after 120-day period had expired); Stambush v. Shinseki, No. 08-2984, 2010 WL 318493 (Vet.App. Jan. 28, 2010)(VA forwarded appellant's otherwise timely Notice of Appeal to regional office, which then
forwarded the document to the Court more than one month after 120-day period had expired); Bove v. Shinseki, No. 08-1468, 2010 WL 318524 (Vet.App. Jan. 28, 2010) (regional office forwarded
9
otherwise timely Notice of Appeal more than six months after receipt); Williams v. Shinseki, No. 07-2548, 2009 WL 4979749 (Vet.App. Dec. 22, 2009) (Board forwarded otherwise timely Notice of Appeal to Court more than 14 months after receipt); Horne v. Shinseki, No. 09-2042, 2009 WL 3446348 (Vet.App. Oct. 28, 2009) (VA forwarded appellant's otherwise timely Notice of Appeal seven months after receipt); Mendoza v. Shinseki, No. 08-3406, 2009 WL 3389907 (Vet.App. Oct. 22, 2009) (regional office forwarded otherwise timely Notice of Appeal nearly four months after 120-day period expired); Humphreys v. Shinseki, No. 08-2633, 2009 WL 3353032 (Vet.App. Oct. 20, 2009) (regional office did not return otherwise timely Notice of Appeal to appellant for more than seven months, causing appellant's Notice of Appeal to the Court to be filed after the expiration of the 120-day period); Murray v. Shinseki, No. 06-3271, 2009 WL 3157534 (Vet.App. Sept. 29, 2009) (Board forwarded otherwise timely Notice of Appeal to regional office, which forwarded it to the Court more than one month after the 120-day time period expired).
++++++++++++++++++++++++++

LANCE, Judge, concurring: Given the number of cases involving misfiling of Notices of Appeal (NOAs) seen by this Court and referenced by my colleague in his separate statement, it is clear that there exists a problem requiring a solution. While there is no evidence of intentional delay by employees of the Secretary, the perception can easily develop that VA can defeat the jurisdiction of this Court by merely "running out the clock" on the veteran in cases of misfiled NOAs. That is unacceptable. The perception will persist until such time as the Secretary develops uniform practices and procedures dealing with misfiled NOAs.
++++++++++++++++++++++++++

"it is this Court's obligation to ensure that rights and protections given to veterans by Congress and a grateful citizenry are effectuated in the spirit as well as letter of the law."
++++++++++++++++++++++++++



The Court expresses its appreciation to Widener University School of 1 Law, in Wilmington, Delaware, for
hosting oral argument in this case.
THIS VERSION OF THE OPINION INCLUDES THE MAY 10, 2010, ERRATA
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0240
ROBERT V. POSEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 16, 20101 Decided April 23, 2010)
Sara E. Collier, of Oklahoma City, Oklahoma, for the appellant.
Nhu P. Nguyen, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant
General Counsel; and Brian B. Rippel, Deputy Assistant General Counsel; all of Washington, D.C.,
were on the brief for the appellee.
Before HAGEL, LANCE, and SCHOELEN, Judges.
HAGEL, Judge, and LANCE, Judge, filed concurring opinions.
PER CURIAM: Robert V. Posey appeals through counsel a July 17, 2007, Board of
Veterans' Appeals (Board) decision that determined that new and material evidence had not been
submitted to reopen a previously denied claim for VA benefits for a respiratory disorder. This matter
is before this panel as a result of Mr. Posey's response, and the Secretary's subsequent reply to that
response, to an order to show cause why his appeal should not be dismissed due to lack of timely
filing of the Notice of Appeal. Because the Court concludes that the document submitted to the
Court is, in fact, a motion for reconsideration of the Board decision rather than a Notice of Appeal,
the Court will dismiss Mr. Posey's appeal without prejudice.
2
I. FACTS
Mr. Posey initially sent the document purported to be a Notice of Appeal from the Board's
July 17, 2007, decision to a VA regional office, where it was received on November 8, 2007. The
regional office mailed that document to the Court on January 19, 2008. The Court received the
document on January 22, 2008, more than 120 days from the date stamped on the front of the Board
decision.
In response to the order to show cause why his appeal should not be dismissed for lack of
jurisdiction due to an untimely filed Notice of Appeal, Mr. Posey argued in his brief that (1) the
Board failed to mail its decision to his correct address and as a result it was returned to the Board
as undeliverable; (2) the Board was aware of a different address for him; (3) he did not receive a
copy of the Board decision mailed to him by the Board on July 17, 2007; and (4) the copy he later
received did not comply with 38 C.F.R. § 20.1100(a) because the Board decision was not stamped
on its face with the date the decision was re-sent.
In his brief, the Secretary conceded that the Board initially mailed the July 17, 2007, decision
to an incorrect address. However, the Secretary asserted that the regional office re-sent the Board
decision to Mr. Posey at his correct address on September 15, 2007. As evidence of this, the
Secretary pointed to an internal VA memorandum in Mr. Posey's claims file that contains an
unsigned, handwritten note indicating that the attached Board decision was re-sent. The Secretary
noted that, on November 8, 2007, VA received from Mr. Posey a document that the Secretary
characterized as an appeal from the July 2007 Board decision. The Secretary argued that Mr. Posey's
correspondence demonstrates that the Board decision was re-sent on September 15, 2007, the date
indicated in the handwritten note. Finally, the Secretary argued that § 20.1100, which requires that
the date the Board decision was mailed be stamped on the face of the Board decision, is unrelated
to whether Mr. Posey timely filed a Notice of Appeal with the Court and does not control the Court's
jurisdiction over Mr. Posey's appeal.
Prior to oral argument, the Court issued an order directing the parties to be prepared to
discuss the relevance, if any, of the Court's decisions in Boone v. Shinseki, 22 Vet.App. 412 (2009),
and Kouvaris v. Shinseki, 22 Vet.App. 377 (2009). Those decisions found that documents purporting
to be Notices of Appeal initially filed by the appellants at the agency and later received by the Court
The Court notes that Mr. Posey's documents were received by the regional 2 office 114 days after the July 2007
date stamped on the face of the Board decision. At oral argument, neither party argued the significance of this fact. As
such, the Court notes the timing of the submission for factual purposes only, without making any judgment regarding
the bearing of that fact on the characterization of the document submitted.
3
beyond the 120-day filing period were, because of their content, not Notices of Appeal but rather
motions for reconsideration of the Board decisions. Because the documents were submitted to VA
within 120 days of the Board decisions and were held to be motions for reconsideration, they tolled
the finality of those decisions. See Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991). At oral
argument, both Mr. Posey and the Secretary argued that the document received by the Court on
January 22, 2008, was a Notice of Appeal from the July 17, 2007, Board decision.
II. ANALYSIS
A. Jurisdiction
The Court has an independent duty to determine its own jurisdiction, even if the matter is not
raised by the parties. Clemons v. Shinseki, 23 Vet.App. 1, 3 (2009) (citing Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974)). Accordingly, the Court must first determine the
nature of the document received by the Court on January 22, 2008–which both parties assert is a
valid Notice of Appeal–before the Court can turn to the question of the timeliness of the filing of that
document.
"It is well settled that a document filed with the Court will be liberally construed to constitute
a [Notice of Appeal] '"as long as the intent to seek Court review is clear from the document as a
whole and the circumstances of its filing with the Court."'" Kouvaris, 22 Vet.App. at 379 (quoting
Durr v. Nicholson, 400 F.3d 1375, 1381 (Fed. Cir. 2005) (quoting In Re Rules of Practice & Proc.,
U.S. Vet.App. Misc. No. 1-02 (Sept. 17, 2002))). Accordingly, "the failure to explicitly ask for
judicial review, or state that one is appealing, does not necessarily mean that a document filed with
the Court will not be considered [a Notice of Appeal]." Id. However, in this case, the document
submitted by Mr. Posey evinces no intent to seek review by the Court, and the circumstances
surrounding its filing strongly suggest that it is more properly considered a motion for
reconsideration of the Board decision.2
4
First, Mr. Posey's submission contains a VA Form 1-9, entitled "Appeal to Board of Veterans'
Appeals." Second, on that form, Mr. Posey checked the box labeled "I want a [Board] hearing in
Washington, D.C." Third, Mr. Posey attached a letter to the Form 1-9 addressed to the VA regional
office in Lakewood, Colorado (where the form and letter were received on November 8, 2007).
Fourth, the salutation of Mr. Posey's letter reads: "To the Honorable Board of Veterans Affairs."
Fifth, in his letter, Mr. Posey reiterates his desire "to have a video conference hearing with one of
the [B]oard members in Washington, D.C." Nowhere in his letter does Mr. Posey refer to the Court
or indicate that he is seeking review of the Board's decision by the Court. Rather, the Court is
convinced Mr. Posey was seeking to have the Board reconsider its July 2007 decision.
Pursuant to regulation,
a motion for reconsideration must be in writing and must include (1) the name of the
veteran, (2) the applicable VA file number, and (3) the date of the Board's decision
to be reconsidered. It must also set forth the alleged obvious error of fact or law in
the applicable decision of the Board, or other appropriate basis for requesting
reconsideration.
Boone, 22 Vet.App. at 414 (citing 38 C.F.R. § 20.1001(a)). Mr. Posey's November 2007 filing meets
all of these requirements: Mr. Posey's name appears in four places on the form and letter; his VA file
number appears on both the Form 1-9 and the letter; Mr. Posey's letter contains the reference line
"Appeal to Recent Decision July 17, 2007;" and the letter lists a number of pieces of evidence Mr.
Posey argues the Board either did not consider or to which it did not assign enough weight.
Although subsection (b) of § 20.1001 provides that a motion for reconsideration must be filed with
the Board, "strict compliance as to where within VA the motion for reconsideration is filed is not
required." Id. (citing Jaquay v. Principi, 304 F.3d 1276, 1287 (Fed. Cir. 2002) (holding that the
language of 38 C.F.R. § 20.1001(b) stating that motions for reconsideration "must be filed at the
following address" is merely for the administrative convenience of the Board), overruled on other
grounds by Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009)). Therefore, the fact that Mr.
Posey mailed this document to the regional office rather than the Board is irrelevant.
The Court is also not persuaded by the parties' assertions at oral argument that Mr. Posey's
use of the word "appeal" in his submission demonstrates his intent to seek judicial review. Mr.
Posey's use of the word "appeal" does not necessarily dictate the result when, as here, a review of
5
his submission in its entirety and the circumstances surrounding its filing at the regional office fails
to evince an intent to seek judicial review. See Durr, 400 F.3d at 1380; Boone, 22 Vet.App. at 414;
Kouvaris, 22 Vet.App. at 380.
In light of this discussion, the Court concludes that Mr. Posey's filing is not a Notice of
Appeal. It is, however, a motion for reconsideration, which, not having been acted on by the Board,
is still pending below. See Boone, 22 Vet.App. at 414-15; Kouvaris, 22 Vet.App. at 381.
Accordingly, there is no appeal over which the Court has jurisdiction, and the Court will therefore
dismiss Mr. Posey's appeal without prejudice to refile, should the Board decision, when final, be
adverse to Mr. Posey. See Rosler, 1 Vet.App. at 249.
B. Secretary's Mailing Procedures
Although the Court has disposed of this matter on a jurisdictional basis, we feel compelled
to comment on the Secretary's filings and arguments in this case. In his response to the show cause
order, Mr. Posey acknowledged the presumption of regularity that the Secretary is afforded in
mailing Board decisions, but contended that the presumption had been rebutted by virtue of the fact
that the copy of the Board decision mailed on July 17, 2007, was returned to the Board as
undeliverable due to an incorrect address and that the Board was aware of a different address for Mr.
Posey at the time the decision was initially mailed. Appellant's Response at 2-3; see Sthele v.
Principi, 19 Vet.App. 11, 16-17 (2004) (holding that the Board is presumed to have properly mailed
a copy of its decision to the last known address of a claimant, and the claimant's representative, if
any, on the date that the decision was issued). In his reply, the Secretary conceded that the
presumption of regularity had been rebutted because the Board was aware of a different address for
Mr. Posey but mailed the July 17, 2007, Board decision to the wrong address. Secretary's Brief (Br.)
at 4. The Secretary then acknowledged that the burden shifted to him "to demonstrate proper mailing
or actual receipt of the Board decision[,] after which the 120-day [appeal] period will begin to run."
Id. (citing Hampton v. Nicholson, 20 Vet.App. 459, 461 (2006); Sthele, 19 Vet.App. at 17). His
attempt to demonstrate proper mailing, however, fell short of his goal.
The Secretary relied on a handwritten note, presumably made by an employee of the regional
office, on an internal memorandum attached to a copy of the Board decision that states: "Resent the
attached (July 17, 2007[,] [Board] decision letter) on Sep[tember] 15, 2007 – Address obtained from
6
[Compensation and Pension Record Interchange] to: [Mr. Posey's proper address]." The Secretary
also argued that Mr. Posey's November 2007 submission to the regional office (which the Court
determined above was a motion for reconsideration) demonstrated that the Board decision had been
re-mailed on September 15, 2007. Secretary's Br. at 4.
At oral argument, the Court questioned the reliability of the handwritten note. The
Secretary's counsel asserted that the note was, in fact, reliable because it was made
contemporaneously with the purported September 15, 2007, re-mailing of the Board decision and
kept in the ordinary course of business. The Court interpreted this argument as an attempt to have
the Court accept the note as a business record, which is an exception to the hearsay rule. See FED.
R. EV. 801(c), 803(6). However, the Secretary failed to appreciate that the business records
exception to the hearsay rule has its foundation in the assumption that a record that is regularly kept
for purposes of the efficient operation of a business or government entity will be kept in accordance
with a demonstrated regular practice of that organization. Thus, a business record is reliable only
where "it was the regular practice of that business activity to make the [offered record]," and only
when that regular practice is attested to by "the custodian of the record or other qualified witness,
or by certification." FED. R. EV. 803(6). Although the Court is not bound by the Federal Rules of
Evidence, we note that the presumption of administrative regularity regularly relied upon by, and
afforded to, the Secretary under our caselaw and the hearsay exception for business records offered
by the Federal Rules both have at their root a showing that the writing was the product of a
consistent, reliable procedure. See Nieves-Rodrigues v. Peake, 22 Vet.App. 295, 302 (2008) (stating
that the Federal Rules of Evidence are not binding on the Court, but may provide "useful guidance"
in some circumstances); Sthele, 19 Vet.App. at 16-17 (discussing the presumption of regularity).
What the Secretary failed to do in this case was demonstrate that the remailing procedure
followed in Mr. Posey's case (i.e., a handwritten notation by an unidentified person on an internal
document not sent to the claimant) is the consistent and regular procedure that VA follows in cases
in which the Board decision is returned as undeliverable and remailed to the claimant at a different
address. See Sthele, 19 Vet.App. at 18-19. The Secretary contended that 38 C.F.R. § 20.1100,
requiring that Board decisions be stamped with the date of mailing, does not concern procedures to
be followed in the case of Board decisions returned as undeliverable. At oral argument, the
We set aside, for the purposes of this discussion, the obvious incongruity and confusion 3 that must result from
not changing the date stamped on the front of the Board decision to the date the decision was re-mailed to the correct
address when the notice of appellate rights states that a claimant has 120 days from the stamped date to appeal, rather
7
Secretary's counsel stated that the disputed handwritten notation was made "contemporaneously"
with the re-mailing of the Board decision, but offered nothing more than her word that this was so.
At no time has the Secretary produced, or offered to produce, affidavits of VA personnel to support
his argument that simply noting on an internal document that a Board decision was re-mailed on a
particular date plausibly demonstrates the actual date the Board decision was re-mailed, nor did he
file any attachments with his brief demonstrating an established policy for the re-mailing of Board
decisions. The Secretary, despite his best attempts, cannot make an action "contemporaneous"
simply by saying it was.
At oral argument, the Secretary's counsel attempted to rely on the VA Adjudication and
Procedure Manual to support this position, despite not having included that document in the
Secretary's brief in reply to Mr. Posey's response to the Court's show cause order, and without
notifying Mr. Posey's counsel that she intended to rely on that document or providing Mr. Posey's
counsel with that document. In any event, we note that the Manual provision offered by the
Secretary's counsel does not provide any more support for the Secretary's position than did his
counsel's unsupported statement at oral argument. In fact, the Manual demonstrates that VA indeed
does have a procedure to be followed in cases such as Mr. Posey's, and that the procedure was not
followed in Mr. Posey's case:
If the decision was not mailed to the appellant's current address:
• mail a photocopy to the most recent address of record
• update [the Veterans Appeals Control Locator System]
• annotate the decision with the new address and the date it was remailed[;]
however[,]
• do not, under any circumstances, change the date stamped on the first page of the
decision.
VA Adjudication and Procedure Manual, M21-1MR, Part 1, ch. 5, § G, subsec. d. In Mr. Posey's
case, the decision was not annotated with the new address and the date it was re-mailed–the
annotation was made on an internal VA document never sent to Mr. Posey–and therefore does not
comport with VA's established procedure.3 Although we do not have to decide the ultimate question
than 120 days from the handwritten date.
8
of whether VA successfully met its burden to demonstrate proper mailing or actual receipt, the Court
feels compelled to state how troubled it is by VA's continued inability to follow its own procedures
and its lackadaisical approach to litigating this case.
III. CONCLUSION
Upon consideration of the foregoing, Mr. Posey's appeal of the July 17, 2007, Board decision
is DISMISSED without prejudice.
HAGEL, Judge, concurring: I fully concur in the Court's decision, but I write separately to express my concern over the central issue in this case.
It has become clear to me that VA somewhat routinely holds correspondence from claimants that it determines, sometime after receipt, are Notices of Appeal to this Court. As a result, in far too many cases, the Court receives the Notice of Appeal from VA only after the 120-day appeal period has expired, permitting the Secretary to then move to dismiss the appeals for lack of jurisdiction.
See, e.g., Rickett v. Shinseki, ___ Vet.App. ___, No. 09-2493 (March 19, 2010) (VA forwarded appellant's otherwise timely Notice of Appeal to the Court more than one month after 120-day period had expired); Irwin v. Shinseki, 23 Vet.App. 128 (2009) (Board forwarded Notice of Appeal to Court more than four months after receipt and approximately one month after the 120-day period expired); Bronson v. Shinseki, No. 09-3554, 2010 WL 1507648 (Vet.App. Apr. 16, 2010) (Board forwarded appellant's otherwise timely Notice of Appeal to the regional office more than two months after
receiving it; the regional office forwarded it to the Court more than one month after the 120-day appeal period had expired); Harris v. Shinseki, No. 09-0567, 2010 WL 668926 (Vet.App. Feb. 26, 2010) (veteran informed of (otherwise timely) misfiling by VA nearly four months after 120-day period had expired); Stambush v. Shinseki, No. 08-2984, 2010 WL 318493 (Vet.App. Jan. 28, 2010)(VA forwarded appellant's otherwise timely Notice of Appeal to regional office, which then
forwarded the document to the Court more than one month after 120-day period had expired); Bove v. Shinseki, No. 08-1468, 2010 WL 318524 (Vet.App. Jan. 28, 2010) (regional office forwarded
9
otherwise timely Notice of Appeal more than six months after receipt); Williams v. Shinseki, No. 07-2548, 2009 WL 4979749 (Vet.App. Dec. 22, 2009) (Board forwarded otherwise timely Notice of Appeal to Court more than 14 months after receipt); Horne v. Shinseki, No. 09-2042, 2009 WL 3446348 (Vet.App. Oct. 28, 2009) (VA forwarded appellant's otherwise timely Notice of Appeal seven months after receipt); Mendoza v. Shinseki, No. 08-3406, 2009 WL 3389907 (Vet.App. Oct. 22, 2009) (regional office forwarded otherwise timely Notice of Appeal nearly four months after 120-day period expired); Humphreys v. Shinseki, No. 08-2633, 2009 WL 3353032 (Vet.App. Oct. 20, 2009) (regional office did not return otherwise timely Notice of Appeal to appellant for more than seven months, causing appellant's Notice of Appeal to the Court to be filed after the expiration of the 120-day period); Murray v. Shinseki, No. 06-3271, 2009 WL 3157534 (Vet.App. Sept. 29, 2009) (Board forwarded otherwise timely Notice of Appeal to regional office, which forwarded it to the Court more than one month after the 120-day time period expired).
Although Mr. Posey has not been harmed by VA's actions in this case, because the Court has
determined that the document he submitted to VA was not a Notice of Appeal, I am compelled to
comment on the inherent unfairness to claimants that is created by VA's actions or lack thereof. The
failure of administrative staff at the regional office or the Board to recognize a document as a Notice
of Appeal and the subsequent failure to either return the document to the claimant or forward it to
the Court within a reasonable time prior to the expiration of the 120-day appeal period could be
attributable to simple inattention or lack of awareness on the part of the administrative staff, rather
than to any overt attempt to deny claimants the ability to appeal adverse Board decisions. However,
VA's insistence on seeking to terminate a claimant's appeal to the Court by drafting and filing a
motion to dismiss that appeal as untimely at least implies more conscious thought than
administrative oversight.
I am a firm believer that it is not the place of the Court to provide specific suggestions to the
Secretary regarding the operations of VA. In some cases, however, it is important to point out the
impact, perhaps unknown to the Secretary, of the agency's procedures. The Secretary, after all, has
options other than moving to dismiss the case. One, described more fully below, is not to forward
the Notice of Appeal to the Court when to do so would result in the claim's dismissal and consequent
bar from further review on the same facts, and instead treat the Notice of Appeal as a motion for
One Judge of this Court takes a contrary view and would find it within the Court's 4 authority to treat Notices
of Appeal filed with VA within 120 days of the Board decision as "deemed filed" with the Court, a position with which
my concurring colleague and I disagree. See Rickett, ___ Vet.App. at ___, slip op. at 6-11 (Kasold, J., dissenting). My
reasons for disagreeing are set forth below.
10
reconsideration of the Board decision. Another, if the Notice of Appeal was forwarded to the Court
after the expiration of the 120-day appeal period, is for VA to seek to recover jurisdiction. See
Cerullo v. Derwinski, 1 Vet.App. 195 (1991) (holding that VA may indicate, after a Notice of Appeal
is filed with the Court, that it is inclined to grant reconsideration of the Board decision, in which case
VA must file a motion for remand with the Court). A third would be to critically examine the clarity
of the current notice of appellate rights provided to claimants by the Board after each adverse Board
decision.
As the Court has acknowledged in many cases, most recently in Rickett, it is ultimately the
responsibility of the appellant to properly address and file a Notice of Appeal to this Court. Rickett,
___ Vet.App. at ___, slip op. at 6. However, the Secretary's ability to hold–without consequence to
VA–Notices of Appeal that would have been timely had they been filed with the Court until such
time as the appeal period has expired forces the Court to dismiss the appeal because we are bound
by prior caselaw.4 See Rickett, ___ Vet.App. at ___, slip op. at 3 (holding that a timely Notice of
Appeal misfiled with VA cannot be "deemed filed" at the Court); Irwin, 23 Vet.App. at 131 (holding
that misfiling a Notice of Appeal with VA does not toll the time period to file an appeal with the
Court); Henderson v. Peake, 22 Vet.App. 217, 220-21 (2008), aff'd sub nom. Henderson v. Shinseki,
589 F.3d 1201 (Fed. Cir. 2009) (holding that equitable tolling of the time to file an appeal with the
Court is not available under any circumstances). Not only does this result in a gross unfairness to
appellants, but also it has the effect of interfering with the Court's jurisdiction by removing cases
(and the issues associated with them) from the Court's consideration.
Although there is no evidence, and I do not charge, that it is VA's intention to deprive
veterans or their survivors of their ability to appeal Board decisions to the Court, that, nevertheless,
is the result of VA's actions. Admittedly, VA is a huge agency and it routinely handles many, many
more claims than this Court does appeals. Despite that fact, in my view, the agency would do well
to undertake an evaluation of its correspondence review procedures to ensure that communications
from claimants following an adverse Board decision are properly interpreted and forwarded to the
11
Court in a timely manner or returned to the claimant with proper explanation, rather than held until
it is too late for the claimant to exercise his or her right to independent judicial review. See, e.g.,
U.S. VET. APP. R. 3(a) (stating that a Notice of Appeal may be filed by facsimile transmission); U.S.
VET.APP. ELECTRONIC R. 2(c) (providing for the filing of a Notice of Appeal as an attachment to an
electronic mail message).
Of course, Congress also has the ability to easily fix this problem. Should Congress choose
to do so, however, I believe great care should be taken to preserve the distinction between
independent judicial review and agency adjudication. Below are two possible options.
First, some have suggested that the Court might deem Notices of Appeal filed with VA
within 120 days of the adverse Board decision timely Notices of Appeal to the Court. See Rickett,
___ Vet.App. at ___, slip op. at 6-11 (Kasold, J., dissenting). This, I believe, is the wrong approach.
Permitting Notices of Appeal to be routinely filed with VA rather than the Court would blur the line
between review by an independent federal court–a review conducted by Federal judges appointed
by the President of the United States and confirmed by the United States Senate–and internal review
by VA employees, a line that should be sharply and precisely drawn. Thus, in my view, any change
in the law that would permit Court documents to be filed with the administrative agency–which has
already denied the appellant's claim at least twice–would only result in further confusion for
claimants regarding the relative roles of VA and the Court.
Another option–one that would preserve the important distinction between the Court and
VA–would be for Congress to amend 38 U.S.C. § 7103 (governing reconsideration of Board
decisions) or 38 U.S.C. § 7266 (regarding Notices of Appeal) to include language providing that a
Notice of Appeal filed with VA during the 120-day appeal period following an adverse Board
decision will be treated as a motion for reconsideration of the Board decision if VA does not forward
the Notice of Appeal to the Court in a timely manner. The consequence of such a change would
cause these documents to be processed in accordance with the procedures currently in place for such
Given the obligations of VA in the "paternalistic veterans' benefits syste 5 m to care for those who served their
country in uniform," there is nothing preventing VA from taking this action on its own. Jaquay, 304 F.3d at 1280.
Should this change take place, whether by policy or by statute, it would further assist claimants if any letter that denied
reconsideration clearly explained how and why the case was treated as a motion to reconsider. Further, because in these
types of cases, the claimants are often apparently confused by the standard notice of appellate rights initially provided
by VA, any such letter (or reconsidered opinion) might more clearly state the means of obtaining judicial review.
12
motions, and thus preserve the claimant's right to judicial review.5 See Rosler v. Derwinski,
1 Vet.App. 241 (1991).
LANCE, Judge, concurring: Given the number of cases involving misfiling of Notices of Appeal (NOAs) seen by this Court and referenced by my colleague in his separate statement, it is clear that there exists a problem requiring a solution. While there is no evidence of intentional delay by employees of the Secretary, the perception can easily develop that VA can defeat the jurisdiction of this Court by merely "running out the clock" on the veteran in cases of misfiled NOAs. That is unacceptable. The perception will persist until such time as the Secretary develops uniform practices and procedures dealing with misfiled NOAs. The frequency of the problem would suggest that there
may be confusion in instructions given to veterans. Of course, the Secretary, if he elects, can merely
return the misfiled NOAs within a reasonable amount of time and advise veterans to perfect their
appeal in a timely manner with instructions as to where to send their NOA. This procedure, if used
in a consistent manner and properly documented, would become the business practice of the
Secretary and the resultant time lost in the process would be the responsibility of the veteran and not
attributable to the Secretary. Anything less might well continue to taint, by perception if not by
practice, both the Secretary's duty to assist and the appellate process of this Court. Cf. ABA MODEL
CODE OF JUDICIAL CONDUCT Preamble ¶ 2 (2007) ("[Judges] should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.").
In the appropriate circumstance, the Court may well construe any misfiling of an NOA
without appropriate and timely corrective action by the Secretary as a request for reconsideration by
the Board, which will merely add additional burdens to a burdened system. In the past, the Court
has held that the Secretary's actions can result in a waiver of the technical requirements associated
with filing a Substantive Appeal. See Gonzalez-Morales v. Principi, 16 Vet.App. 556, 557 (2003);
13
Roy v. Brown, 5 Vet.App. 554, 556 (1993) (noting that in Rowell v. Principi, 4 Vet.App. 9 (1993),
there was an implicit waiver by the Secretary of the Substantive Appeal requirement). It seems
reasonable that the logic applied in the Court's Substantive Appeal cases would also apply to the
technical requirements associated with filing a motion for reconsideration.
Ultimately, it is the Secretary's charge to develop those methods and practices necessary to
discharge his obligations, but it is this Court's obligation to ensure that rights and protections given to veterans by Congress and a grateful citizenry are effectuated in the spirit as well as letter of the law.