James B. Criswell v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-845
JAMES B. CRISWELL, APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided December 4, 2006 )
Sean A. Ravin, of Washington, D.C., for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; William
L. Puchnick, Acting Deputy Assistant General Counsel; and Rudrendu Sinhamahapatra, all of
Washington, D.C., for the appellee.
Before KASOLD, HAGEL, and SCHOELEN, Judges.
HAGEL, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring
opinion.
HAGEL, Judge: James B. Criswell appeals through counsel a February 12, 2003, Board of
Veterans' Appeals (Board) decision in which the Board denied him an effective date prior to August
21, 1997, for the assignment of a 50% combined disability rating for his service-connected cold-
injury residuals of the hands and feet. For the reasons provided in this opinion, the Court will affirm
the February 2003 decision on appeal.
I. FACTS
Mr. Criswell served on active duty in the U.S. Army from March 1944 to August 1945.
Record (R.) at 17. On August 27, 1945, he submitted to a VA regional office an application for
disability compensation for trenchfoot and exposure. Supplemental (Supp.) R. 1-2. Specifically,
in the box in which he was asked to list the nature of the disease or injury for which the claim was
being made, he stated as follows: "Trenchfoot - 12-23-44 - exposure - swell - p[er]spire - aching
discoloration." Id. at 1. He was granted a temporary disability rating of 50% for "trenchfoot,
bilateral." R. at 51. The regional office noted that the condition was "rated as frozen feet." Id.
The report from a February 1947 VA examination reflects cold-weather residuals to Mr.
Criswell's upper extremities. R. at 53. In March 1947, the regional office terminated the temporary
rating and granted service connection for bilateral trenchfoot; the regional office assigned a 30%
disability rating, effective February 25, 1947. R. at 64.
In August 1997, Mr. Criswell requested service connection "for my hand due to frostbite"
and an increased disability rating for his service-connected residuals of frozen feet. R. at 144. In
July 1999, he was granted service connection for cold-weather residuals for both hands and assigned
a combined 30% disability rating for both hands effective from August 1997 to August 1998; he was
assigned a separate 20% disability rating for each hand effective August 13, 1998. R. at 259-60. He
appealed to the Board and sought an earlier effective date for his combined disability rating for his
service-connected conditions.
In the decision on appeal, the Board observed that "when the veteran filed his initial claim
of entitlement to service connection for bilateral trenchfoot, which VA received in August 1945, he
did not include a claim requesting a determination or evidencing a belief in entitlement to benefits
for cold injury residuals of the hands." R. at 12. The Board ultimately concluded that Mr. Criswell
had not filed a claim "in relation to his cold[-]injury residuals of the hands until his application in
August 1997." Id. at 13.
On appeal, referring to March 1947 medical records, Mr. Criswell argues, among other
things, that he had reasonably raised a claim for cold-weather residuals for both hands in 1947, and
that that claim remained pending and unadjudicated until July 1999. Appellant's Brief (Br.) at 11-17.
On that basis, he asserts entitlement to an effective date in March 1947 for his service-connected
cold-weather residuals for both hands. Id. at 16.
In response, the Secretary argues that the 1947 medical records referred to by Mr. Criswell
do not reflect an intent to seek VA benefits for an injury to his hands. Secretary's Br. at 7-10. The
Secretary urges the Court to affirm the Board's decision.
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The Court subsequently granted Mr. Criswell's motion for supplemental briefing, wherein
he argued that his August 1945 application "raised the issue of entitlement to service connection for
all disabilities related to cold exposure." Mr. Criswell's supplemental brief largely mirrors this
argument. See Appellant's Supp. (Br.) at 3-4.
II. ANALYSIS
The law requires the Secretary to "give a sympathetic reading to the veteran's filings by
'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'"
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d
1378, 1384 (Fed. Cir. 2001)). Nevertheless, it is well settled that an intent to apply for benefits is
an essential element of any claim, whether formal or informal, and, further, the intent must be
communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006)
(holding that the plain language of the regulations require a claimant to have an intent to file a claim
for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an
informal claim for benefits must be in writing); Brannon v. West, 12 Vet.App. 32, 35 (1998); 38
C.F.R. § 3.27 (1946) (stating that before VA can adjudicate a claim for benefits, "the claimant must
submit a written document identifying the benefit and expressing some intent to seek it"); 38 C.F.R.
§ 3.1 (p) (2005) (defining "claim" as "a formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in entitlement, to a benefit"). It follows logically
that where there can be found no intent to apply for VA benefits, a claim for entitlement to such
benefits has not been reasonably raised.
The mere existence of medical records generally cannot be construed as an informal claim;
rather, there must be some intent by the claimant to apply for a benefit. See Brannon, 12 Vet.App.
at 35 ("The mere presence of the medical evidence does not establish an intent on the part of the
[appellant] to seek secondary service connection for the psychiatric condition . . . . While the Board
must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that
were not raised by the appellant."); 38 C.F.R. § 3.155(a) (2006) ("Any communication or action,
indicating an intent to apply for one or more benefits under the laws administered by [the Secretary]
. . . "may be considered an informal claim." (emphasis added)).
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Although there are two recognized exceptions to this general rule, those exceptions are
applicable only when an underlying claim has been awarded and the medical records demonstrate
that the veteran's disability has increased, or when an underlying claim has been denied and the
medical records evidence new and material evidence to reopen the claim. See 38 C.F.R. § 3.157(b)
(2005); see also Leonard v. Principi, 17 Vet.App. 447, 451 (2004); Lalonde v. West, 12 Vet.App.
377, 381 (1999). Neither of those exceptions applies in this case.
The Board found that, although Mr. Criswell's 1947 medical records reflect complaints
relating to his hands, they do not demonstrate "that [he] was seeking a benefit in relation to his
hands." R. at 13. That finding is not clearly erroneous. See Butts v. Brown, 5 Vet.App. 532, 535
(1993) (en banc) (questions of fact are reviewed under the "clearly erroneous" standard set forth in
38 U.S.C. § 7261(a)(4)). Mr. Criswell points to nothing in his 1947 medical records that, either
alone or combined with his 1945 application, indicates he had an intent to apply for anything other
than disability compensation for his feet. Absent such intent there can be no informal claim, and the
Board's ultimate conclusion that a claim for service connection for cold-weather residuals for both
hands was not filed in this case prior to August 21, 1997, is not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A); see Westberry v.
West, 12 Vet.App. 510, 513 (1999) (holding that whether an informal claim had been filed requires
the application of the law to the facts of a case and is reviewed under 38 U.S.C. § 7261(a)(3)(A)).
III. CONCLUSION
Upon consideration of the foregoing, the February 2003 decision on appeal is AFFIRMED.
KASOLD, Judge, concurring: Mr. Criswell additionally argues that his August 1945
application, in conjunction with his claims file, supporting documents, and testimony, constitutes
a claim for service connection for cold-weather residuals, which the 1947 VA regional office (RO)
failed to process, leaving it unadjudicated until the July 1999 grant. See App. Supp. Br. at 3-4.
Although this argument is not addressed in the Court's opinion, I note that it is properly brought in
a request for revision on the basis of clear and unmistakable error (CUE) and, furthermore, it should
have been raised below and not for the first time on appeal. See Deshotel v. Nicholson, 457 F.3d
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1258, 1261-62 (Fed. Cir. 2006) (argument that RO failed to address all claims presented is properly
brought as request for revision on the basis of CUE); Andrews v. Nicholson, 421 F.3d 1278, 1281
(Fed. Cir. 2005) (holding that the RO's failure to address an implied claim "is properly challenged
through a CUE motion"); Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc) (holding that
a motion for revision on the basis of CUE in final RO decision must be presented to and adjudicated
by the RO in order for the Board and the Court to review the matter on the merits); cf. Andre v.
Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (holding that this Court had no jurisdiction to review
appellant's challenge to 1973 RO decision on CUE grounds that were "entirely separate and distinct
claims that the Board's decision [on appeal] had not addressed").
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