Caring. Effective. Efficient.

Reasonably Raised Claims and Earlier Effective Dates

Reasonably Raised Claims and Earlier Effective Dates

 

This case involves an earlier effective date argument: specifically, whether a veteran's claim for service connection of his kidney disease was reasonably raised in an earlier claim for increased rating for gout.

The appeal was fully briefed to the Court of Appeals for Veterans Claims, and a Memorandum Decision in favor of our client was issued for the Court by Judge Margaret Bartley.

ISSUE PRESENTED TO THE COURT FOR REVIEW:

When determining the date of receipt of a claim for purposes of identifying the correct effective date, the Board must give liberal construction to a pro-se veteran’s substantive appeal, as well as a sympathetic reading of earlier filings to assess the scope of those claims.

In this case, a liberal construction of an August 2014 Substantive Appeal raises the issue of whether a 2007 claim included a claim for kidney disease. A sympathetic review of the record shows that though Appellant first wrote the phrase “kidney disease” on a 2010 supplemental application form, his 2007 application for an increased rating for gout reasonably encompassed a separate claim for secondary service connection of kidney disease shown in contemporaneous medical records to be caused by treatment of the worsening gout.

Can the Board’s decision denying an effective date earlier than 2010 for the service-connected kidney disease be in accordance with the law if it does not sympathetically assess the scope of the 2007 claim?

COURT'S DECISION.

Because the evidence of record reasonably raised the issue of secondary service connection for chronic kidney disease due to the prescribed NSAID medication for service-connected gout, the Board was obligated to address it when adjudicating the proper effective date.

Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying an effective date earlier than August 10, 2010, for service connection for chronic kidney disease, necessitating remand. 

INSIGHT INTO DECISION.

The general rule of effective dates is that a VA Claim's effective date will be the date of the claim, or the date the entitlement arose, whichever is later.  However, there are several exceptions to this rule, and one of them is the "reasonably raised" claim rule. That rule - which is more of a doctrine than a rule - says that if an earlier claim reasonably raised a claim for the same benefit just adjudicated, and has remained open and pending since it was reasonably raised, it can serve as an earlier effective date.

The BVA is required, in the first place, to do a factual inquiry to determine if a claim was "reasonably raised". They rarely do. In fact, the BVA rarely considers this rule.

The lead cases in this arena are Robinson, Moody and Szemraj - all 3 Federal Circuit cases in which the US Court of Appeals for the Federal Circuit reminds the Secretary of his obligation to liberally construe and sympathetically read claims, in particular those from pro-se veterans.

Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).

Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).

The Secretary rarely does this, and with each Federal Circuit "reminder", adds new "rules" to the reasonably encompassed claim doctrine.  

Currently, they like to argue that the veteran has to show "intent" to "reasonably raise" a claim in the four corners of the claim form. 

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Case Details

OGC Attorney: Robert Schneider

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: Deborah W. Singleton

Regional Office: Muskogee, Oklahama, VA Regional Office

Vets’ Rep at BVA: Veterans of Foreign Wars (VFW)

Date of BVA Decision: July 6, 2016

Date of CAVC Memorandum Decision: March 30, 2018 

Link to BVA Decision

Link to CAVC Memorandum Decision

 

Recent Cases

(April 18, 2018) The law firm of Hill and Ponton approached Attig | Steel after the BVA judge denied their veteran a higher 70 percent PTSD rating. They had put a lot of work and energy into helping a veteran, and the BVA decision seemed to gloss ove… Read More
(April 6, 2018) The veteran in this case served in the Navy in support of Operation Iraqi Freedom, including deployment to Kuwait. Upon his return stateside, after attempts to reintegrate to civilian life, he began to have family and other problems.… Read More
(February 14, 2018) Attorney Chris Attig has been working with this veteran’s survivor for half a decade to get her DIC and survivor’s accrued benefits properly awarded.  The veteran was a 3 decade military veteran, who fought not only i… Read More

See More Appellate Results

VA Form 21 Blog

Nov
26
Today’s video starts off with an overview of a recent precedential decision of the U.S. Court of Appeals for Veterans Claims in the case of Moody v. Wilkie, Cause No. 16-1707. Click here to read the CAVC’s panel decision in Moody v. Wi… Read More
Nov
15
What is the Deep Issue in the Case? 38 U.S.C. §7107(b) (2012) requires “[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing.”  On remand from the Veterans Court, the veteran asked for a new BVA he… Read More

Read the VA Form 21 Blog