Case: 21-1089 Document: 19 Page: 1 Filed: 10/19/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEROME L. GERMANY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1089
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6131, Chief Judge Margaret C.
Bartley, Judge William S. Greenberg, Senior Judge Wil-
liam P. Greene, Jr.
______________________
Decided: October 19, 2021
______________________
JEROME L. GERMANY, Cedar Hill, TX, pro se.
SARAH E. KRAMER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office
Case: 21-1089 Document: 19 Page: 2 Filed: 10/19/2021
2 GERMANY v. MCDONOUGH
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before NEWMAN, DYK, and REYNA, Circuit Judges.
PER CURIAM.
Jerome J. Germany appeals a decision of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”),
which affirmed the Board of Veterans’ Appeals (“Board”)
decision denying an earlier effective date for service-con-
nected compensation for post-traumatic stress disorder
(“PTSD”). We affirm.
BACKGROUND
Mr. Germany served on active duty in the U.S. Navy
from November 1988 to September 1992. In April 2008,
Mr. Germany filed a claim with the Department of Veter-
ans Affairs (“VA”) for service-connected disability compen-
sation for fatigue and breathing problems (the “2008
Claim”). Despite repeated requests from the VA regional
office (“RO”), Mr. Germany did not provide the VA with any
information about the disabilities claimed, including when
symptoms began, dates of any treatment, or identifying in-
formation for treatment providers. Mr. Germany later au-
thorized the RO to obtain his medical records but again
failed to provide any information upon which the VA could
locate the relevant medical records. In December 2009, the
VA denied Mr. Germany’s claim.
In October 2016, Mr. Germany was diagnosed with
PTSD. A month later, Mr. Germany filed a new claim, this
time seeking service connection for PTSD/chronic adjust-
ment, depression, and anxiety (the “2016 Claim”). In con-
nection with processing the 2016 Claim, the RO obtained
Mr. Germany’s mental health records, which reflected that,
after a May 2008 VA mental health screening, Mr. Ger-
many tested positive for depression and negative for PTSD.
Case: 21-1089 Document: 19 Page: 3 Filed: 10/19/2021
GERMANY v. MCDONOUGH 3
In July 2017, the RO granted Mr. Germany’s request for
service connection for PTSD and assigned a 50 percent dis-
ability rating effective November 2016.
Mr. Germany challenged the November 2016 effective
date before the Board, arguing that the VA was construc-
tively made aware of his PTSD disability by his 2008
Claim, and that awareness should serve as an informal
claim, justifying an earlier effective date. 1 The Board de-
nied Mr. Germany’s claim of entitlement to an earlier ef-
fective date, and the Veterans Court affirmed.
Mr. Germany now appeals to this court. We have ju-
risdiction pursuant to
38 U.S.C. § 7292(d)(1).
DISCUSSION
Mr. Germany appears to argue that because support
for his PTSD claim can be found in the 2008 medical rec-
ords, i.e., his diagnosis of depression, his 2008 Claim
should be considered an informal claim for PTSD. Under
the applicable version of
38 C.F.R. § 3.155(a), 2 “any com-
munication can qualify as an informal claim if it: (1) is in
writing; (2) indicates an intent to apply for veterans’ bene-
fits; and (3) identifies the particular benefits sought.” Shea
v. Wilkie,
926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal
quotation marks omitted). A “[v]eteran need not refer ex-
plicitly to the name of an illness, injury, or condition” on
his claim form. Sellers v. Wilkie,
965 F.3d 1328, 1335 (Fed.
1 Mr. Germany also appealed his initial rating of 50
percent for his service-connected PTSD, which the Board
remanded to the RO. That issue is not relevant to the pre-
sent appeal.
2 In 2015, the VA implemented a rule that claims for
disability benefits must be filed on a standard form and re-
vised
38 C.F.R. § 3.155. See Standard Claims and Appeals
Forms,
79 Fed. Reg. 57,660 (Sept. 25, 2014). Mr. Ger-
many’s alleged informal claim predates this change.
Case: 21-1089 Document: 19 Page: 4 Filed: 10/19/2021
4 GERMANY v. MCDONOUGH
Cir. 2020). A high level of generality will suffice, so long as
the “benefit sought . . . can also be found indirectly through
examination of evidence to which those documents them-
selves point when sympathetically read.” Shea, 926 F.3d
at 1368 (internal quotation marks omitted).
Had Mr. Germany’s mental health records been before
the RO in the first instance in evaluating his 2008 Claim,
that might have been sufficient to qualify as an informal
claim for PTSD. See id. at 1370. In Shea, we held that the
VA erred by not construing the veteran’s claim to cover psy-
chiatric conditions referenced in her medical records but
not explicitly listed on her claim form. Id. However, unlike
Mr. Germany, the veteran in Shea included in her prior ap-
plication for benefits information as to the relevant records,
specifying “treatment by specific physicians at specific fa-
cilities during specific periods.” Id. at 1369. Here, despite
the repeated efforts of the RO to obtain information from
Mr. Germany that could help locate his medical records, he
failed to provide it. We therefore agree with the Veterans
Court that “the Board was not required to anticipate an in-
formal claim for PTSD that was not reasonably raised by
the record or reasonably encompassed within the 2008
claim for breathing problems and fatigue.” S.A. 6.
Mr. Germany also argues that the VA violated its duty
to assist under 38 U.S.C. § 5103A(c)(1)(B). The question
whether Mr. Germany provided enough information with
his 2008 Claim “to identify and locate the existing records,”
“the approximate time frame covered by the records,” and
“the condition for which treatment was provided,”
38 C.F.R. § 3.159(c)(3), such that it would trigger the Sec-
retary’s duty to assist, is a factual question outside of this
court’s jurisdiction, see Glover v. West,
185 F.3d 1328, 1333
(Fed. Cir. 1999).
CONCLUSION
We have considered the remainder of Mr. Germany’s
claims, including his claims that the Veterans Court
Case: 21-1089 Document: 19 Page: 5 Filed: 10/19/2021
GERMANY v. MCDONOUGH 5
decision implicates his due process rights and that it was
improper for the Veterans Court to decide his case with a
single-judge panel, and find they are without merit. Ac-
cordingly, we affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.
