Sellers v. Wilkie

Case: 19-1769 Document: 57 Page: 1 Filed: 07/15/2020
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT M. SELLERS,
Claimant-Appellee
v.
ROBERT L. WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant
______________________
2019-1769
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-2993, Judge Mary J. Schoelen,
Judge Michael P. Allen, Senior Judge Robert N. Davis.
______________________
Decided: July 15, 2020
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellee. Also
represented by JOHN F. CAMERON, Montgomery, AL.
DAVID PEHLKE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellant. Also repre-
sented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
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2 SELLERS v. WILKIE
BENJAMIN C. BLOCK, Covington & Burling LLP, Wash-
ington, DC, for amici curiae National Organization of Vet-
erans' Advocates, Inc., National Veterans Legal Services
Program. Also represented by ISAAC CHAIM BELFER, FRANK
CRAIG BROOMELL, JR., JEFFREY HUBERMAN. Amicus curiae
National Veterans Legal Services Program also repre-
sented by JOHN D. NILES, BARTON F. STICHMAN, National
Veterans Legal Services Program, Washington, DC.
______________________
Before DYK, CLEVENGER, and HUGHES, Circuit Judges.
CLEVENGER, Circuit Judge.
Robert M. Sellers served honorably in the U.S. Navy
from April 1964 until February 1968, and in the U.S. Army
from January 1981 to February 1996. Mr. Sellers currently
suffers from major depressive disorder (“MDD”). As a prac-
tical matter, this case involves Mr. Sellers’ attempt to es-
tablish an earlier effective date than the one currently
assigned to him for the compensation he receives due to his
current MDD condition.
Mr. Sellers has an effective date of September 18, 2009.
He seeks an effective date of March 11, 1996, the date he
filed a formal claim 1 seeking compensation for specifically
identified injuries to his leg, knee, back, finger, and ears.
In a space on his formal application labeled “Remarks,” Mr.
Sellers wrote “Request for s/c [service connection] for disa-
bilities occurring during active duty service.” J.A. 140. Mr.
Sellers contends that the law in effect in 1996 requires his
1 In VA parlance, a formal claim is one made on a
particular form specified by the Secretary. As early as
1962, VA regulations referred to “Original claim” as “an in-
itial formal application on a form prescribed by the Admin-
istrator. 38 C.F.R. 3.160(b) (1962).
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SELLERS v. WILKIE 3
remarks to be understood as a formal claim for compensa-
tion for his MDD, even though his claim in no way refers to
MDD, and thus affords him the earlier effective date of his
1996 formal claim. The United States Court of Appeals for
Veterans Claims (“Veterans Court”) agreed that Mr.
Sellers’ claim based on MDD could suffice in the absence of
any reference to that condition. Sellers v. Wilkie, 30 Vet.
App. 157 (2018). The Secretary of Veterans Affairs chal-
lenges the Veterans Court’s decision, arguing that a legally
sufficient formal claim must identify, at least at a high
level of generality, the current condition upon which the
veteran’s claim for benefits is based. 2 For the reasons set
forth below, we agree with the Secretary. Accordingly, Mr.
Sellers is not entitled to the earlier effective date he re-
quests.
I
On September 18, 2009, Mr. Sellers filed an informal
claim 3 with the Department of Veterans Affairs (“VA”)
2 Whether a formal claim must refer at least gener-
ally to the condition on which a veteran’s claim for compen-
sation is based is no longer questionable. Since March 24,
2015, the VA’s regulations require that a formal claim
must provide “a description of any symptom(s) or medical
condition(s) on which the benefit is based. . . .” 38 C.F.R.
3.160(a)(4).
3 Since as early as 1961, VA regulations allowed for
informal claims, with an informal claim defined as “[a]ny
communication or action, indicating an intent to apply for
one or more benefits under the laws administered by the
Veterans Administration, from a claimant. . . .” 38 C.F.R.
3.155(a) (1961). The 1961 regulation specified that an in-
formal claim “must identify the benefit sought.” Id. If no
formal claim was of record, an application form for a formal
claim was sent to the informal claimant for execution, and
if an executed form was received by the Administrator
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4 SELLERS v. WILKIE
seeking compensation for a service-connected psychiatric
disability, claimed as Post Traumatic Stress Disorder
(“PTSD”). A VA regional office (RO) denied his claim in
March 2011. But on May 13, 2011, following an examina-
tion for mental disorders at the VA medical center in Mont-
gomery, Alabama, Mr. Sellers was diagnosed with “major
depressive disorder, recurrent, moderate,” and given a
Global Assessment of Functioning (GAF) score of 50. 4
After a number of additional medical examinations,
and an appeal to the Board of Veterans Affairs (“BVA”), Mr.
Sellers was granted service connection for MDD rated at
within 1 year from the date it was sent to the claimant, it
was considered filed as of the date of receipt of the informal
claim. Id. The purpose of informal claims was to assist in
filing formal claims and to serve a placeholder role for an
earlier effective date. Effective March 24, 2015, the VA
abolished the concept of informal claim, and by regulation
created an “intent to file” process. If a veteran demon-
strates an intent to file by one of three methods delineated
in the new regulations, see 38 C.F.R 3.155(b), the date any
of the three methods is performed serves as the effective
date for any formal application filed within one year from
the date of the “intent to file” submission. In contrast to
previous informal claims, an intent to file a claim does not
require the claimant to “identify the benefit sought,” see 79
Fed. Reg. at 57,665, but does require an identification of
the general benefit sought (such as compensation versus
pension). See 38 C.F.R. 3.155(b)(2) (2015); Veterans Justice
Group, LLC v. Sec’y of Veterans Affairs, 818 F.3d 1336,
1342-43 (Fed. Cir. 2016).
4 At this time, and later, Mr. Sellers was granted
compensation for other service-connected injuries and dis-
abilities. Since only his claim for an earlier effective date
for his MDD is at stake in this case, we note but do not refer
further to his other bases for compensation.
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SELLERS v. WILKIE 5
70%, with an effective date of September 18, 2009, the date
he filed his informal claim for service-connected psychiatric
disability. The BVA decision stated:
The record shows that the VA received on Septem-
ber 18, 2009, an informal claim for service connec-
tion for psychiatric disability, claimed as PTSD. . .
It is noted that, when a claimant makes a claim, he
is seeking service connection for symptoms regard-
less of how those symptoms are diagnosed or la-
beled. Clemons v. Shinseki, 23 Vet. App. 1 (2009).
J.A. 37. The BVA further noted that the effective date of
any claim is the date of receipt of the claim or the date en-
titlement arose, whichever is later, citing 38 C.F.R. 3.400.
As September 18, 2009 is the later, it was deemed the ef-
fective date. The BVA observed “that [the] VA received no
claim (informal or otherwise) for service connection for any
psychiatric disability prior to September 19, 2009.” J.A. 38.
With regard to Mr. Sellers’ formal claim filed on March 11,
1996, the BVA noted that it “did not include any claim for
psychiatric disorder or problems that could be reasonably
construed as a claim for service connection for psychiatric
disability.” J.A. 38.
Mr. Sellers appealed the BVA’s denial of an earlier ef-
fective date for his MDD to the Veterans Court. In his brief
to the Veterans Court, Mr. Sellers faulted the BVA for
reading his 1996 formal claim as excluding any claim for
psychiatric disability. In addition to the several specific
bodily injuries named in his formal application, for which
he sought compensation, his formal claim also stated in
block 40 5 (entitled “Remarks”): “Request s/c [service
5 In VA Form 21-526, block 40 states: “REMARKS
(Identify your statements by their applicable item number.
If additional space is required, attach separate sheet and
identify your remarks by their item number.” J.A. 140.
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6 SELLERS v. WILKIE
connection] for disabilities occurring during active duty
service.” Mr. Sellers argued to the Veterans Court that this
language in the veteran’s pro se filing should be sympa-
thetically read to require the VA to “grant all possible ben-
efits.” Mr. Sellers argued that this result is mandated the
more so because at the time the VA ruled on the formal
application for benefits, it had “obtained his service medi-
cal records and was aware of his in-service medical treat-
ment for his chronic mental disability.” J.A. 70. Mr.
Sellers’ brief to the Veterans Court cited numerous VA
medical records which referred to medical treatment for
mental disorders. Because his medical records revealed in-
service treatment for mental disorders before his formal
claim was filed, Mr. Sellers argued that his request in es-
sence for “all possible benefits” in block 40 was sufficient to
state a claim for psychiatric disability as of the date of his
formal claim.
The Secretary responded to Mr. Sellers’ brief to the
Veterans Court, citing as the correct statement of the law
the following language in Brokowski v. Shinseki, 23 Vet.
App. 79, 84 (2009): “The essential requirements of any
claim, whether formal or informal” are: “(1) an intent to ap-
ply for benefits, (2) an indication of the benefits sought, and
(3) a communication in writing.” 6 In particular, the
The purpose of block 40 is to allow amplification of infor-
mation contained in other numbered blocks in the Form,
such as blocks 17-19, in which Mr. Sellers provided infor-
mation about his specifically claimed bodily injuries.
6 In Brokowski, the veteran’s 1994 claim for service-
connected peripheral neuropathy was granted in 2002,
with an effective date of February 15, 1994. The veteran
had earlier filed a claim in January 1977 for anxiety and
depression which made no reference to peripheral neurop-
athy, but which stated “[t]his is also a claim for service[ ]
connection for all disabilities of record.” Brokowski, 23 Vet.
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SELLERS v. WILKIE 7
Secretary emphasized that in Brokowski, the Veterans
Court held that a claim for anxiety and depression that also
requested service connection for “all disabilities of record”
was insufficient to support a claim for peripheral neuropa-
thy. Because Mr. Sellers’ March 1996 filing made no refer-
ence to a claim for benefits related to a psychiatric
condition and only requested benefits for “disabilities oc-
curring during active duty service,” the Secretary argued
that this case is like Brokowski: Mr. Sellers’ formal claim
failed to meet the required test for identifying the benefits
sought for a psychiatric condition, and thus could not earn
an earlier effective date for Mr. Sellers’ MDD.
After oral argument, the Veterans Court issued its
opinion. See Sellers v. Wilkie, 30 Vet. App. 157 (2018). The
Veterans Court first stated the position of the parties. Mr.
Sellers contended that his general statement seeking ser-
vice connection for disabilities occurring during active duty
service, combined with the VA’s possession of his service
medical treatment records, sufficed to state a formal claim
for MDD. In practical terms, his March 1996 formal claim
purportedly entitled him to his requested earlier effective
date for his MDD rated at 70%. The Secretary’s view was
that Mr. Sellers failed to initiate a formal claim for MDD
because the information in block 40 of the form provided no
information from which an MDD claim could be deduced
and the formal claim otherwise made no reference to MDD.
The Veterans Court agreed with the Secretary that “a
general statement of intent to seek benefits for unspecified
disabilities standing alone is insufficient to constitute a
App. at 82. Because the veteran’s medical records as of
1978 contained evidence of vascular disorder, the veteran
argued that his request for all disabilities of record sufficed
to state a claim for peripheral neuropathy and thus entitled
him to an effective date of January 1977 for his service-
connected peripheral neuropathy disability.
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8 SELLERS v. WILKIE
claim.” Sellers, 30 Vet. App. at 163. Nonetheless, the Vet-
erans Court faulted the Secretary for missing “a crucial ad-
ditional factor present here,” namely that at the time the
RO rejected Mr. Sellers’ formal claim, his medical records
in the RO’s possession revealed multiple occasions on
which he had received treatment for psychiatric conditions,
and an undisputed in-service diagnosis of a psychiatric con-
dition. Id. In the face of Brokowski, and with no citation
to other authority, the Veterans Court held that Mr.
Sellers’ general statement in block 40, coupled with the
VA’s possession of his medical records showing previous
treatment for a psychiatric condition, may have sufficed to
qualify the March 1996 writing as having initiated a formal
claim for MDD, subject to one condition. The condition re-
quiring satisfaction to validate the formal claim is that Mr.
Sellers’ in-service psychiatric diagnosis be “reasonably
identifiable” from the medical records before the RO at the
time it considered his claim. In sum, the court stated: “We
hold that a general statement of intent to seek benefits,
coupled with reasonably identifiable in service medical di-
agnosis reflected in service treatment records in VA’s pos-
session prior to the RO making a decision on the claim may
be sufficient to constitute a claim for benefits.” Id. at 161.
The Veterans Court noted that the determination by
the RO adjudicator of whether a compensable condition is
“reasonably identifiable” from medical records, with only a
completely unspecified general request for benefits to go
on, may be difficult. Noting that medical records can be
voluminous, and may perhaps relate to several conditions,
the Veterans Court specified that the “fact finder must de-
termine, based on the totality of the service medical record,
both qualitatively and quantitatively, whether the condi-
tion at issue would be sufficiently apparent to an adjudica-
tor.” Id. at 163. Because the “reasonably identifiable”
question in any case is one of fact, which if in dispute would
be decided initially by the BVA, the Veterans Court offered
extensive guidance to the BVA:
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SELLERS v. WILKIE 9
To assist the Board in this endeavor, we pro-
vide the following thoughts on the types of factors
that may be relevant to the Board’s inquiry. These
are not the only factors the Board may find helpful
as it makes its assessment on this factual question.
They are merely illustrations of factors that may be
relevant to the Board’s assessment. Qualitatively,
for example, service medical records might contain
many notes of conditions ranging from descriptions
of trivial conditions (a hangnail) to full-blown diag-
noses of significant illnesses (PTSD). And the rec-
ord might describe certain conditions in great
detail or, in contrast, in only a passing manner. Or,
for example, medical records could contain vague
complaints of symptoms regarding a condition but
no formal diagnosis.
Quantitatively, the sheer volume of medical
records may potentially be a factor in determining
whether a condition would have been reasonably
identifiable to a VA adjudicator. For example, the
Board could decide that a single diagnosis reflected
in a single page of a 2,000 page service record is not
reasonably identifiable.
Id. at 163-64.
As the “reasonably identifiable” issue had not been de-
cided in this case, the Veterans Court remanded the case
to the BVA for it to examine the relevant medical records
and decide if Mr. Sellers’ MDD claim was reasonably iden-
tifiable at the time he filed his formal claim. In Brokowski,
the Veterans Court held that the veteran’s request for “all
disabilities of record” could not be used as “a pleading de-
vice to require the Secretary to conduct an unguided safari
through the record to identify all conditions for which the
veteran may possibly be able to assert entitlement to a
claim for disability compensation.” 23 Vet. App. at 89. But
in this case, the Veterans Court stated that:
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10 SELLERS v. WILKIE
[O]ur holding here is a narrow one. Only records
containing diagnoses that are reasonably identifia-
ble from a review of the record may otherwise cure
an insufficient general statement of intent to seek
benefits. To continue Brokowski’s metaphor, we
caution that VA at most must participate in a fully
guided safari.
Sellers, 30 Vet. App. at 164.
To be clear, the Veterans Court did not decide that Mr.
Sellers filed a sufficient formal claim for a psychiatric dis-
ability in March 1996. Instead, the Veterans Court created
a new legal test for determination of whether a general
statement of intent to seek benefits for unspecified disabil-
ities will suffice as a sufficient formal claim. The Secretary
filed a motion for panel reconsideration or en banc review,
arguing that the panel decision is barred by governing stat-
utes and regulations. The panel denied reconsideration, en
banc review was denied, and judgment was entered on Jan-
uary 30, 2019. The Secretary timely appealed to this court.
II
We have jurisdiction over this appeal under 38 U.S.C.
7292, which generally restricts our jurisdiction to final de-
cisions of the Veterans Court. Because the Veterans
Court’s decision is not final, we must determine whether
this case satisfies the three-part test set forth in Williams
v. Principi, 275 F.3d 1361 (Fed. Cir. 2002), which deter-
mines whether a non-final Veterans Court decision is none-
theless within our statutory jurisdiction. Jurisdiction will
lie in such a case if all three parts of the test are met: (1)
there is a clear and final decision of a legal issue, separate
from the remand proceedings, that will directly govern the
remand proceedings, or if reversed, would render the re-
mand proceedings unnecessary; (2) the resolution of the le-
gal issue adversely affects the party seeking judicial
review; and (3) there is a substantial risk that the remand
proceeding may moot the issue. Id. at 1364.
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SELLERS v. WILKIE 11
This case satisfies the Williams test. The Veterans
Court decision created a clear rule of law that will govern
the remand proceeding, and remand proceedings would be
unnecessary were we to reject that clear rule of law. The
contested clear rule of law adversely affects the Secretary
because it would change the law to require formal claims
to proceed notwithstanding the absence of any identifiable
sickness, disease, or injuries reasonably identified in the
written claim. Finally, there is a substantial risk that the
BVA may on remand find a reasonably identifiable timely
diagnosis of a psychiatric condition in Mr. Sellers’ medical
record. Such a finding would moot judicial review of the
contested rule of law in this case, because the Secretary
cannot appeal BVA decisions favorable to the veteran to
the Veterans Court. Smith v. Nicholson, 451 F.3d 1344,
1348 (Fed. Cir. 2006) (noting that 38 U.S.C. 7252(a) pre-
cludes the Secretary from appealing a BVA decision).
III
The Veterans Court held that a legally sufficient for-
mal claim can be stated despite the absence of any state-
ment in the claim that could be sympathetically
understood to identify a sickness, disease, or injury for
which benefits are sought. The parties address that hold-
ing from opposite positions.
The Secretary challenges the Veterans Court’s holding
as legally incorrect. He argues that relevant statutes and
regulations impose a duty on the veteran to identify the
sickness, disease, or injury for which benefits are sought.
Pointing to both its longstanding practice and the prece-
dential holdings of this court deciding the sufficiency of in-
formal claims, the Secretary states that the level of
specificity required to identify a sickness, disease, or injury
is minimal. A veteran need not refer explicitly to the name
of an illness, injury, or condition. Identifying a condition
even at a high level of generality will suffice. Identifying,
for example, a leg injury, memory loss, or eye problems
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12 SELLERS v. WILKIE
would satisfy the specificity test. And even if the words
stated do not name a condition, facts stated in the claim
can be sympathetically understood to support a claim. A
leading example comes from Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001). In that case, the veteran’s claim in-
cluded evidence of a medical disability, and of unemploya-
bility, and asked for the highest possible rating. That
evidence was held sufficient to support a rating for total
disability based on individual unemployability. The Secre-
tary also cites Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir.
2019) as another instance in which a claim lacking specific
reference to PTSD was held sufficient. In that case, in con-
trast to the situation here, the veteran’s claim pointed to
specific medical records in which the veteran’s psychiatric
condition was noted. The Secretary emphasizes that while
the VA’s claim assessment process requires, consistent
with our binding precedent, that veterans’ claims be read
sympathetically, the condition on which the claim is based
must be identifiable from within the claim.
As legal support for necessary identification of the con-
dition for which benefits are sought, the Secretary begins
with 38 U.S.C. 501(a)(2), in which Congress granted the VA
authority to prescribe all necessary or appropriate rules
and regulations regarding “the forms of applications by
claimants.” Mansfield v. Peake, 525 F.3d 1312, 1317 (Fed.
Cir. 2008) (“Congress has provided the VA with authority
to establish requirements for ‘claims’ for veterans bene-
fits.”) In addition, Mansfield held that “[a] specific claim in
the form prescribed by the Secretary . . . must be filed in
order for benefits to be paid or furnished to any individual
under the laws administered by the Secretary. 38 U.S.C.
5101(a)(2000).” Id.; see also id. at 1317 n.9 (citing 38 U.S.C.
3001(a) (1988)). The statutory command of section 5101(a)
is repeated in the pertinent regulation, 38 C.F.R. 3.151(a).
Further, the veteran is obligated to “present and support”
his claim. 38 U.S. C. 5107(a).
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SELLERS v. WILKIE 13
As required under the statutes and regulations, the
veterans’ claim must be on the VA’s prescribed form, and
the claim must “contain[] specified information . . . as called
for by the blocks on the application form.” Fleshman v.
West, 138 F.3d 1429, 1431-32 (Fed. Cir. 1988); see also Ro-
driguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (a
claimant must “file a form providing specified information
that the Secretary has adopted.”) (emphasis added). Since
at least 1944, the prescribed formal claim application form
has been a variation of Form 526. In this case, the pre-
scribed form was 21-526 (Apr. 1993), and that form re-
quires claimants to identify in block 17 the “nature of
sickness, disease or injuries for which this claim is made.” 7
As noted at the start of this opinion, the VA in Septem-
ber 2014, after notice and comment rulemaking, substan-
tially revised the claim initiation process, through
regulations effective March 24, 2015. The validity of those
new regulations was sustained, over challenge, in Veterans
Justice Group, LLC v. Sec’y of Veterans Affairs, 818 F.3d
1336 (Fed. Cir. 2016) (“VJG”). The Secretary argues that
VJG is relevant to our decision in this case. 8 We agree.
7 When Mr. Sellers filed his formal claim, 38 C.F.R.
3.1(p) defined the term “claim” as “(p) “Claim” – “Applica-
tion” means a formal or informal communication in writing
requesting a determination of entitlement or evidencing a
belief in entitlement, to a benefit.” 38 C.F.R. 3.1(p) (1996).
Neither party argues that this definition answers the ques-
tion of the degree of specificity required of a formal claim.
The current regulation defines “initial claim” as a “any
complete claim” and the “first initial claim” being further
defined as an “original” claim. A “complete claim” now re-
quires “a description of any symptom(s) or medical condi-
tion(s) on which the benefit is based….”
8 Mr. Sellers argues that VJG did not consider the
Secretary’s position on claim identification, because the
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14 SELLERS v. WILKIE
In VJG, the lawfulness of 38 C.F.R. 3.160 was chal-
lenged as an unreasonable interpretation of 38 U.S.C.
5107(a), which provides that “a claimant has the responsi-
bility to present and support a claim for benefits.” The in-
terpretation question arose from two subparts of section
3.160, which were viewed by the challengers as relieving
the Secretary from the duty to develop claims unrelated to
the actual claims presented by the veteran. Those subparts
provide that a complete claim “must identify the benefit
sought,” 3.160(a)(3), and contain “a description of any
symptom(s) or medical condition(s) on which the benefit is
based. . .,” 3.160(a)(4). The challengers argued that under
those terms, the VA would not be required to “adjudicate
benefits for any medical condition that is not specifically
identified and that [the] VA deems ‘unrelated to those par-
ticular claims’ – no matter how apparent the condition is
on the face of the record.” VJG, 818 F.3d at 1355. Thus
understood, the challengers argued the regulations were
unreasonable as in conflict with the Secretary’s duty to
“consider all information and lay and medical evidence of
record in a case.” Id. at 1356 (quoting 38 U.S.C. 5107(b)).
This court responded that section 5107(b) ensures consid-
eration of all “relevant” evidence but does not answer the
question of whether the Secretary is obligated to develop
evidence outside the scope of a pending claim. Id. Treating
that question as one raised under the first step in the
opinion does not use the words “claim” and “identification”
together, and hence the case is not relevant to this case. As
discussed below, Mr. Sellers is wrong. The VJG decision is
highly relevant to this case. One of the challengers in VJG,
National Organization of Veterans’ Advocates, Inc., filed
an amici curiae brief in this case, advocating affirmance of
the Veterans Court’s decision. Notably, its brief does not
take issue with the Secretary’s interpretation of and reli-
ance on our decision in VJG.
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SELLERS v. WILKIE 15
Chevron analysis, the court sustained the validity of
3.160(a)(3)-(4):
We find the challenged portions of 38 C.F.R.
3.160(a)(3)-(4) . . . reflect a reasonable interpreta-
tion of the statute. In fact, the regulations do not
substantially alter the VA’s general practice of
identifying and adjudicating issues and claims that
logically relate to the claim pending before the VA.
See Final Rule, 79 Fed. Reg. at 57,672 (“Although
the rule requires claimants to specify the symp-
toms or conditions on which their claims are based
and the benefits they seek, it generally would not
preclude the VA from identifying, addressing, and
adjudicating related matters that are reasonably
raised by the evidence of record which the claimant
may not have anticipated or claimed.”).
Id.
The regulations sustained in VJG, effective in 2015, do
not apply to this case, but those regulations do not substan-
tially differ from the regulations that do apply to this case.
The statute at question in VJG, 38 U.S.C. 5107(a), burdens
the veteran with the obligation to “present and support a
claim.” The version of the same statute in effect at the time
Mr. Sellers submitted his formal claim imposed on the vet-
eran the same duty to present and support his claim. 9 See
Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997).
9 The version of Section 5107(a) applicable in Epps
and in 1996, specified that a claimant “shall have the bur-
den of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded.” 38 U.S.C. 5107(a) (1996). The requirement of
a well-grounded claim has since been abolished, but to es-
tablish a well-grounded claim at least required
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16 SELLERS v. WILKIE
We agree with the Secretary that the relevant statutes,
regulations, and judicial precedent require that a veteran’s
legally sufficient claim provide information, even at “a high
level of generality,” 818 F.3d at 1356, to identify the sick-
ness, disease, or injury for which benefits are sought.
Mr. Sellers’ argument, in support of the Veterans
Court’s test, and in spite of the relevant statutes, regula-
tions, and judicial precedent discussed above, that “[t]here
is no claim identification requirement when a claimant has
filed a complete claim on a prescribed VA form,” Appellee’s
Br. at 13, is unconvincing. According to Mr. Sellers, a for-
mal claim specifying at least one identified condition for
which benefits are sought invokes the Secretary’s duty to
assist, not only to fully develop the specified condition but
also to search the veteran’s records to identify and fully de-
velop any additional claim the record may support. 10 Thus,
according to Mr. Sellers, the law requiring some degree of
identification in a claim of the sickness, disease, or injury
for which benefits is sought is “unavailing,” Appellee Br. at
15, and “invalid,” Appellee Br. at 18, because it “is com-
pletely at odds,” id., with the Secretary’s statutory duty to
assist the veteran in developing all claims the record may
support. 11
identification of some condition on which the claim was
based. Epps, 126 F.3d at 1468.
10 Mr. Sellers does not argue that his 1996 form dis-
closes his MDD.
11 At the time Mr. Sellers filed his formal claim in
1996, the Secretary’s duty to assist veterans was stated in
two regulations, 38 C.F.R. 3.159(a) (1996), entitled Depart-
ment of Veterans Affairs assistance in developing claims
(“[The Secretary] shall assist a claimant in developing the
facts pertinent to his or her claim”), and 38 C.F.R. 3.103(a)
(1996), entitled Procedural due process and other rights
(“[I]t is the obligation of VA to assist a claimant in
Case: 19-1769 Document: 57 Page: 17 Filed: 07/15/2020
SELLERS v. WILKIE 17
The Secretary’s duty to assist is not untethered. At the
time Mr. Sellers filed his formal claim, the Secretary’s duty
to assist was triggered by receipt of a legally sufficient
claim. Epps, 126 F.3d at 1469. The same is true today; the
Secretary’s duty to assist begins upon receipt of a formal
claim that identifies the medical condition for which bene-
fits are sought. See 38 C.F.R 3.159(a)(3). This triggers the
Secretary’s duty to obtain the veteran’s medical records, see
38 C.F.R 3.159(c)(2)–(3), 38 U.S.C. 5103A(c)(1)(A), and
then to develop fully the stated claim. Until the Secretary
comprehends the current condition on which the claim is
based, the Secretary does not know where to begin to de-
velop the claim to its optimum. We reject Mr. Sellers’ view
that the Secretary’s requirement that a formal claim must
identify the condition for which benefits are sought is fa-
tally inconsistent with the Secretary’s duty to assist the
veteran. The former is necessary to initiate the latter.
developing the facts pertinent to the claim”). In 1996, 38
U.S.C. 5107(a) required the VA to assist a claimant “in de-
veloping the facts pertinent to the claim.” See Epps v. Go-
ber, 126 F.3d 1464, 1469 (Fed. Cir. 1997) (no duty to assist
under section 5107 until claimant presents a proper claim).
Mr. Sellers also cites the statutory duty to assist, 38 U.S.C.
5103A, enacted in 2000. Subsection (a) of the statute states
that “[t]he Secretary shall make reasonable efforts to assist
a claimant in obtaining evidence necessary to substantiate
the claimant’ claim for a benefit under a law administered
by the Secretary.” Although the language of section 5103A
states the Secretary’s duty to assist in different words than
in previous regulations, the nature of the duty is the same:
“to fully and sympathetically develop the veteran’s claim to
its optimum before deciding it on its merits.” Hodge v.
West, 155 F.3d 1356, 1362 (Fed. Cir. 1998); see also Rob-
erson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (duty
to develop the veteran’s claim, citing Hodge).
Case: 19-1769 Document: 57 Page: 18 Filed: 07/15/2020
18 SELLERS v. WILKIE
IV
For the reasons set forth above, we hold that the Vet-
erans Court formulated an incorrect legal test for deter-
mining if Mr. Sellers is entitled to an earlier effective date
for his MDD condition. Under the correct test, a veteran’s
formal claim is required to identify the sickness, disease,
or injuries for which compensation is sought, at least at a
high level of generality. This is the same test as we have
applied in evaluating the sufficiency of informal claims.
See, e.g., Shea, 926 F.3d at 1362; Roberson, 251 F.3d at
1384. It is undisputed as a matter of fact that Mr. Sellers
fails this test. For that reason, it is appropriate for this
court to hold that Mr. Sellers is not entitled to an earlier
effective date based on his 1996 formal claim. See Robin-
son v. O’Rourke, 891 F.3d 976, 979 (Fed. Cir. 2018)
(“[W]here adoption of a particular legal standard dictates
the outcome of a case based on undisputed facts, we may
address that issue as a question of law.”) (quoting Kelly v.
Nicholson, 463 F.3d 1349, 1352-53 (Fed. Cir. 2006)); Reeves
v. Shinseki, 682 F.3d 988, 992 (Fed. Cir. 2012); Comer v.
Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009); Groves v.
Peake, 524 F.3d 1306, 1309-10 (Fed. Cir. 2008) (reversing
the Veterans Court and remanding for entry of judgment
where application of correct law dictates outcome of a vet-
eran’s claim).
CONCLUSION
Because Mr. Sellers cannot prevail in his request for an
earlier effective date for his MDD condition based on his
1996 formal application, we reverse the decision of the Vet-
erans Court in this case, and remand to the Veterans Court
for entry of judgment against Mr. Sellers.
REVERSED AND REMANDED
COSTS
The parties shall bear their own costs.