[00:00:01] Speaker 04:
Okay, our next case is number 18-1735, Shea versus Wilkie.

[00:00:26] Speaker 04:
Okay, Mr. Belfer.

[00:00:31] Speaker 00:
May it please the court, we are here to ask this court to require the VA to use... Let me see if I can understand where things stand with respect to the Sellers case.

[00:00:42] Speaker 04:
As I understand it, the government has appealed the decision in Sellers.

[00:00:48] Speaker 04:
You rely on Sellers, of course.

[00:00:51] Speaker 04:
Am I correct about that?

[00:00:54] Speaker 00:
Your Honor, I'm not sure of exactly what the posture of Sellers is, but I know that, at least at this point, it has not been overruled that it remains a presidential decision.

[00:01:03] Speaker 04:
Well, sure, but it's been appealed to our court, as I understand it.

[00:01:07] Speaker 04:
Well, I can ask the government to confirm that.

[00:01:11] Speaker 00:
Your Honor, I'm not sure exactly what the posture of Sellers is.

[00:01:17] Speaker 00:
But I would nevertheless submit that it is persuasive reasoning that this court should follow in evaluating this claim.

[00:01:29] Speaker 00:
Now, the issue here is whether the VA used the correct legal standard in determining which claims a veteran has raised.

[00:01:40] Speaker 00:
to fulfill Congress's intent to create a non-adversarial.

[00:01:50] Speaker 01:
Correct.

[00:01:51] Speaker 01:
OK.

[00:01:51] Speaker 01:
And the language, such informal claim, must identify the benefit sought.

[00:01:56] Speaker 01:
And there's a dispute about whether the language used in the October 2007 application did that.

[00:02:05] Speaker 01:
So here's one question.

[00:02:06] Speaker 01:
Were medical records attached to that application?

[00:02:10] Speaker 01:
Or are the medical records on which you rely to try to

[00:02:14] Speaker 01:
bring into the actual application the claim for the psychiatric related condition.

[00:02:26] Speaker 01:
Were those records unearthed by or found by, put into the record by the VA or were they actually attached to the application?

[00:02:38] Speaker 00:
Your Honor, they were in the record, but... I'm sorry, in what record?

[00:02:43] Speaker 00:
In the service medical records.

[00:02:45] Speaker 01:
So now you're saying... I think you're saying they were not attached to the application.

[00:02:51] Speaker 01:
They eventually became part of the application for benefits by the usual process of the VA getting the service records.

[00:03:01] Speaker 01:
Is that what happened?

[00:03:02] Speaker 00:
not quite, Your Honor.

[00:03:04] Speaker 00:
So it's true that they were not attached to the application, but Ms.

[00:03:07] Speaker 00:
Shea did specifically ask the agency to obtain the relevant medical records.

[00:03:13] Speaker 00:
And if I could turn your attention to a particular place in the record where she did that, I'm looking at Appendix 290.

[00:03:22] Speaker 00:
And so this is a statement in support of claim.

[00:03:25] Speaker 00:
And if you look down a few lines, it says,

[00:03:31] Speaker 00:
I was treated at United Regional Medical Center, Texas, Health South, Texas.

[00:03:37] Speaker 00:
And that's important, Health South, Texas.

[00:03:40] Speaker 00:
And then a few lines down, it says, please obtain these records and grant benefits.

[00:03:44] Speaker 00:
So the veteran is specifically asking the agency to obtain the records from Health South, Texas.

[00:03:51] Speaker 00:
And of course, the application, if you turn to the veteran's original application, which is at Appendix 245,

[00:04:00] Speaker 00:
Health South Rehabilitation Hospital is also referenced there.

[00:04:04] Speaker 00:
And she also lists a specific time window.

[00:04:07] Speaker 00:
I'm sorry, there.

[00:04:09] Speaker 00:
This is not a one-page document.

[00:04:11] Speaker 00:
Which part of this document refers to that?

[00:04:16] Speaker 00:
So I'm looking now at Appendix 245.

[00:04:18] Speaker 00:
245, OK.

[00:04:21] Speaker 00:
And so this is where she lists her benefits.

[00:04:24] Speaker 00:
And if you look in the second row, she says Health South Rehabilitation Hospital, and then she lists the specific time window where relevant records of Health South are from January 31st to April 13th, 2007.

[00:04:39] Speaker 00:
So between this and the later statement explicitly asking the agency to obtain records from Health South, the veteran is clearly directing the agency to a particular location in the record where relevant evidence is located.

[00:04:53] Speaker 00:
And I would turn this court's attention to another document in the record, and this is at Appendix 171.

[00:04:58] Speaker 00:
The court will note that this is a record from Health South Rehabilitation Hospital

[00:05:07] Speaker 00:
It stated February 1st, 2007.

[00:05:10] Speaker 00:
In other words, this is from the specific hospital the veteran referenced and asked the VA to obtain records from.

[00:05:17] Speaker 00:
And it's in the time window the veteran referenced in her application.

[00:05:22] Speaker 00:
And if you look down at diagnosis towards the end, it says diagnosis generalized anxiety disorder and depressive disorder, NOS.

[00:05:33] Speaker 00:
And a few lines above, it says, the veteran showed mild impairment in memory, history of anxiety and depression, which are currently exacerbated.

[00:05:44] Speaker 00:
And that's the key language.

[00:05:45] Speaker 00:
Because in this record, which the veteran has specifically linked to her application, the treating physician is saying that she has exacerbated anxiety and depression.

[00:05:55] Speaker 00:
And this is one week after the accident.

[00:05:57] Speaker 00:
The accident was January 23rd.

[00:05:59] Speaker 00:
This is February 1st.

[00:06:00] Speaker 00:
So this record, which the veteran has specifically directed the agency to, shows that the veteran had psychiatric disabilities which were exacerbated by the accident.

[00:06:10] Speaker 01:
Okay.

[00:06:10] Speaker 01:
Can I ask a, I guess a non-record specific legal question?

[00:06:15] Speaker 01:
Yes, Robert.

[00:06:16] Speaker 01:
Is there in the statute or in regulations anything like a definition of benefit sought?

[00:06:29] Speaker 00:
Your Honor, I do not believe that there is a statutory elaboration of the meaning of benefits sought.

[00:06:35] Speaker 00:
But what there is is precedent by this court and the Veterans Court that elaborates on what the agency needs to do when determining.

[00:06:43] Speaker 01:
There seems to be, I don't know.

[00:06:46] Speaker 01:
general assumption maybe partly disputed this is what I'm trying to figure out that benefits sought is referring to the condition on which the ultimate monetary benefits would rest so that benefit is effectively being equated with relevant condition or disability do you

[00:07:11] Speaker 01:
And I'm trying to understand if there's actually a statutory or regulatory basis for that or benefit just means I want money for I want money.

[00:07:24] Speaker 00:
Your Honor, I think there's no dispute that benefit sought means benefit for a disability.

[00:07:30] Speaker 00:
And so to identify the benefit sought, there's no dispute.

[00:07:34] Speaker 00:
The veteran needs to somehow identify that she wants benefits for a particular disability.

[00:07:40] Speaker 00:
OK.

[00:07:40] Speaker 04:
OK, so the problem is if we were to adopt your view,

[00:07:46] Speaker 04:
of medical records qualifying as an informal claim, at least where somebody has made some claim for disability benefits.

[00:07:58] Speaker 04:
Doesn't that mean that in every single case where there's a claim for benefits that the VA has to search through the medical records to find the basis for some other

[00:08:12] Speaker 04:
physical condition that would support a claim.

[00:08:16] Speaker 00:
No, Your Honor.

[00:08:18] Speaker 00:
We are not challenging the Veterans Court's holding.

[00:08:21] Speaker 00:
The medical evidence alone cannot raise a claim for benefits.

[00:08:24] Speaker 04:
But that was not my question.

[00:08:25] Speaker 04:
My question was, aren't you saying that every time there's a claim for disability benefits, that the VA would be obligated to search through the medical records to see if there was some other physical condition other than the one identified in the claim itself that would support disability benefits?

[00:08:47] Speaker 00:
Two points, Your Honor.

[00:08:48] Speaker 00:
First of all, under the statute, the agency is already required to review the entire records.

[00:08:54] Speaker 04:
Is that the scope of what you're asking for?

[00:08:58] Speaker 00:
We are not asking the agency to look through the entire record and develop every single disability that's referenced in the record.

[00:09:08] Speaker 00:
That is not.

[00:09:10] Speaker 04:
Then I'm not understanding what you are asking for.

[00:09:13] Speaker 00:
Your Honor, we're asking that the agency consider the application together with the evidence of record.

[00:09:20] Speaker 04:
And so where the... Evidence of record, not evidence of record where?

[00:09:25] Speaker 04:
You mean in the VA records?

[00:09:27] Speaker 00:
In all the evidence before the agency.

[00:09:29] Speaker 00:
That includes service medical records as well as any other records submitted.

[00:09:33] Speaker 04:
So my statement about the scope of what you're asking for seems to be correct.

[00:09:37] Speaker 04:
I don't understand how it's not correct.

[00:09:41] Speaker 00:
Your Honour, what we're asking is where the application specifically points to specific records, specific treatment at a specific hospital during a specific window of time.

[00:09:52] Speaker 04:
So it's only those records that they'd have to look at?

[00:09:58] Speaker 00:
Those would be the records that they look at in determining which claims have been raised.

[00:10:02] Speaker 04:
Because when you're determining which things... So you're saying that the service member has to point... If the service member points to particular records in the claim, the VA has to look at those records and see if those records would support an alternative theory.

[00:10:20] Speaker 00:
Yes, Your Honor, if the veteran says obtain records from this particular hospital during this particular period of time and grant benefits, then yes, the agency should look at those particular records and determine if those records raise a claim.

[00:10:35] Speaker 00:
Again, it's not the records themselves, it's the combination of what the veteran has said in her application combined with the evidence of record.

[00:10:43] Speaker 00:
And we think that under this court's precedent, which requires the VA to fully and sympathetically develop a veteran's claim to its optimum, including by determining all potential claims raised by the evidence, the court held that for instance in Moody, under that standard, we think the agency has an obligation to consider all potential claims for benefits raised by the combination of the veteran's application and the evidence of record.

[00:11:15] Speaker 03:
Your Honor, I would like to

[00:11:18] Speaker 03:
Is it enough just to point to the records themselves and to say, look here and you'll find information pertinent to my disability?

[00:11:29] Speaker 03:
Or does she have to do more than that?

[00:11:31] Speaker 03:
For example, say that if you look in these particular records, you'll find conditions of PTSD.

[00:11:37] Speaker 03:
Or does she have to identify the medical condition that she believes would be a basis for disability benefits?

[00:11:48] Speaker 00:
Your Honor, the veteran is not required to explicitly state the condition in her application.

[00:11:55] Speaker 00:
It is sufficient if she links her application to specific records.

[00:12:01] Speaker 00:
She says, look at records from this hospital during this time window, and those records show that she had a disability.

[00:12:08] Speaker 00:
And in particular, given that the veteran not only linked to those specific records from that hospital during that time window, but if the agency looked at her application, it would also see that all of the benefits she was claiming were from a specific day, January 23rd, 2007.

[00:12:24] Speaker 00:
And so it's at least possible that the agency would have inferred that she was attempting to claim benefits for all disabilities from that accident.

[00:12:32] Speaker 03:
So is it your argument that the words and grant

[00:12:35] Speaker 03:
look at the records and grant benefits, that that satisfies the regulation that we're dealing with here?

[00:12:43] Speaker 03:
Your Honor, we are not asking this Court to determine whether that, in fact... Is that an informal claim that identifies the benefits sought under 3.155?

[00:12:57] Speaker 00:
It could be.

[00:12:58] Speaker 00:
That's ultimately a question of fact or application of law to fact, whether the veteran's application meets the requirements of the regulation.

[00:13:06] Speaker 00:
We are not asking this court to decide any issues of fact or application of law to fact.

[00:13:11] Speaker 04:
And so whether her application in fact... I would assume that you agree that the question of what kinds of records are sufficient is a legal question of an interpretation of the regulation.

[00:13:24] Speaker 00:
Correct, Your Honor.

[00:13:25] Speaker 00:
What we're arguing is that the question of what the agency needs to do in determining which claims a veteran raises, what the process is, that process is a legal question.

[00:13:39] Speaker 00:
Which evidence you have to look at in determining whether the veteran has raised a claim, that's a legal question.

[00:13:44] Speaker 00:
And so that's what we're asking this court to decide.

[00:13:46] Speaker 00:
And so what we're asking this court to do is to vacate the veteran's court's decision and remand

[00:13:51] Speaker 00:
so that the agency can determine in the first instance whether the application, together with the evidence of record, raises a claim.

[00:13:58] Speaker 00:
That is the analysis that the board should do in the first instance, but here they just didn't do that analysis.

[00:14:04] Speaker 00:
And I'd like to reserve the remainder of my time for rebuttal, please.

[00:14:06] Speaker 04:
Okay.

[00:14:10] Speaker 04:
Ms.

[00:14:10] Speaker 04:
Finnan.

[00:14:17] Speaker 02:
May it please the court, on behalf of the secretary, we're asking this panel to either dismiss for lack of jurisdiction or affirm on the merits.

[00:14:24] Speaker 04:
So you're appealing the seller's decision, right?

[00:14:27] Speaker 02:
We have filed a notice of appeal of seller's, yes.

[00:14:31] Speaker 04:
So here it seems to me we have a little bit of an unusual situation in that the physical evaluation board determination, which resulted in the separation, refers to the very medical conditions that are at issue here, right?

[00:14:52] Speaker 04:
Page 195 of the appendix.

[00:14:54] Speaker 04:
Would you agree that if the

[00:15:00] Speaker 04:
The claim form had attached the physical evaluation board decision that the claim would have been properly raised.

[00:15:10] Speaker 04:
If, I'm sorry, if the veteran had to... If the benefits claim form had attached what appears in Appendix 195, physical evaluation board determination, would you agree that that would constitute an informal claim for benefits or a formal claim for benefits?

[00:15:31] Speaker 02:
Obviously, this would be a fact-specific inquiry and it's not the case here, but no, I would not concede that because the regulation specifically requires

[00:15:38] Speaker 02:
that a claimant submits something in writing that identifies the benefits sought.

[00:15:44] Speaker 02:
In this instance, if Ms.

[00:15:46] Speaker 02:
Shea, as you suppose, had submitted the same formal claim that we have here in which she delineated four specific physical conditions and attached to that form,

[00:15:59] Speaker 02:
her PEB determination, the PEB form would support the claim because she was ultimately found unfitting for the four physical disabilities.

[00:16:09] Speaker 02:
But that PEB report says, yes, she has a diagnosis of adjustment disorder with anxiety and depression, but it was not compensable or rateable or the basis for her discharge.

[00:16:20] Speaker 02:
So that would bring us back to there just being a diagnosis or symptomology in the medical records, which this court

[00:16:28] Speaker 02:
and the Veterans Court have found is not sufficient.

[00:16:31] Speaker 02:
There has to be some affirmative showing from a veteran.

[00:16:34] Speaker 04:
We haven't addressed that question in this context where there's been a formal claim for benefits and the question is what scope should that be given?

[00:16:43] Speaker 02:
Yes, but this court has found that, in general, the scope of a claim or the effective data signed by the Veterans Court to a claim are questions of fact or the application of fact that are not within this course.

[00:16:54] Speaker 04:
The government always is arguing this jurisdiction.

[00:16:57] Speaker 04:
But this is not a question of fact.

[00:16:58] Speaker 04:
It's a question of what is necessary to make an informal claim, the kinds of records, the kinds of references that are necessary.

[00:17:07] Speaker 04:
Talking about it in those categorical terms is a legal question, isn't it?

[00:17:13] Speaker 02:
as to what is, as a matter of law, sufficient.

[00:17:16] Speaker 02:
Yes, that can be a legal question.

[00:17:18] Speaker 02:
But we would submit that on this record, although Ms.

[00:17:20] Speaker 02:
Shea has argued that she is submitting a question with respect to the interpretation of 3.155A or an interpretation of the doctrine to sympathetically construe a filing, what she's actually doing in practice is seeking a re-adjudication of the scope of her claim and the effective data assigned to that claim.

[00:17:43] Speaker 02:
The regulation is very clear, and the regulation, to harken back to the panel's earlier question, comes from statute.

[00:17:53] Speaker 02:
We have 38 USC 501, which is Congress's delegation to the VA to prescribe rules and regulations to carry out its obligations.

[00:18:04] Speaker 02:
And that 501A1 includes, with respect to the nature and extent of proof and evidence thereof.

[00:18:11] Speaker 02:
So the VA has been charged with promulgating regulations for that purpose.

[00:18:14] Speaker 02:
38 USC 5101A1A also provides that a specific claim in the form prescribed by the secretary must be filed in order for benefits to be paid.

[00:18:27] Speaker 02:
So we've got a statutory requirement for a claim of some kind.

[00:18:32] Speaker 02:
Then 38 USC 5107 provides that, except as otherwise provided by law, a claimant has responsibility to present and support a claim for benefits under the laws administered by the secretary.

[00:18:45] Speaker 02:
So those are the Congress's statements with respect to what it expects.

[00:18:49] Speaker 02:
It expects some sort of claim, and it's delegated to the VA the authority to prescribe rules and regulations.

[00:18:57] Speaker 03:
And the VA has adopted 3.155 that address informal claims.

[00:19:01] Speaker 03:
Yes.

[00:19:02] Speaker 03:
And there it says that an informal claim must identify the benefits sought.

[00:19:06] Speaker 02:
Yes.

[00:19:07] Speaker 03:
And we see here a record where Richey says, look,

[00:19:13] Speaker 03:
Look, in this basket, and you'll see and grant me my benefits, why is that not an identification of the benefits sought?

[00:19:23] Speaker 02:
Well, she did identify a benefit sought.

[00:19:25] Speaker 02:
So in October 2007, she did file a formal claim specifically expressing an intent to apply for benefits and identifying the benefits sought.

[00:19:35] Speaker 02:
what the board determined and the Veterans Court agreed was that that formal claim in October 2007 identified four specific physical conditions.

[00:19:45] Speaker 02:
Yes, they were all attendant to an in-service accident, but I would take issue with the characterization of the record that that formal claim in October 2007 was not for all benefits.

[00:19:58] Speaker 02:
for anything that might have arisen as a result of the truck accident.

[00:20:02] Speaker 02:
It was not a generalized claim for all benefits that might have arisen as a result or within a time frame.

[00:20:09] Speaker 02:
If we go to appendix 245, which is the first page of that formal claim, there are four specific physical conditions delineated, pelvic fractures and transverse process fracture of L3.

[00:20:20] Speaker 02:
That's the first one.

[00:20:21] Speaker 02:
Shortness of breath, that's the second.

[00:20:23] Speaker 02:
The third, right and left pulmonary contusions.

[00:20:26] Speaker 02:
And the fourth, pain in chest.

[00:20:28] Speaker 01:
Can I ask you this?

[00:20:29] Speaker 01:
Do I understand your position to be something like somewhere in the application there has to be language that at least arguably suggests the condition that later becomes at issue?

[00:20:43] Speaker 01:
Yes.

[00:20:44] Speaker 01:
And you say there isn't such language here.

[00:20:46] Speaker 02:
There is not.

[00:20:47] Speaker 01:
So why is that position consistent with, I don't know, let's call it the Roberson standard, which we've quoted three, four, five times since then, which sure sounds like if it's in the medical records, the agency has to ferret out any claim that would be supported by those records.

[00:21:10] Speaker 02:
Yes, so the Roberson case does stand for the proposition that the VA has a duty to fully and sympathetically construe the claims brought by a claimant.

[00:21:19] Speaker 02:
But it goes even beyond that.

[00:21:20] Speaker 01:
Some of the language is, and this I think may be even a stronger position than your friend on the other side is even arguing for,

[00:21:31] Speaker 01:
that if a claim is supportable, reasonably apparent, maybe that's a slight narrowing or a significant narrowing, from the medical records, which will in fact, by your own obligation, have to be collected and put into the record of the proceeding, then you're obliged to treat it as having been informally the subject of the application.

[00:21:59] Speaker 01:
I mean, it seems to me Roberson's language says that, even though its particular circumstances are more narrow.

[00:22:10] Speaker 02:
Right.

[00:22:10] Speaker 02:
But the circumstances are relevant, right?

[00:22:13] Speaker 02:
Those circumstances were the context within which the court was opining in Roberson.

[00:22:20] Speaker 02:
In Roberson, at issue was whether or not a veteran's claim that included evidence of a medical disability

[00:22:29] Speaker 02:
plus

[00:22:30] Speaker 02:
a demand for the highest rating possible.

[00:22:33] Speaker 01:
Which was never quoted, as far as I can tell.

[00:22:35] Speaker 01:
It seems to be asserted that that's what the claim is.

[00:22:39] Speaker 01:
And then that would naturally include TDIU as 100%.

[00:22:44] Speaker 02:
And in that context, the court determined that having submitted evidence of a medical disability, a claim for medical disability, sought the highest rating, and the record containing evidence of unemployability was sufficient to raise a TDIU claim.

[00:23:00] Speaker 02:
A TIU claim is not by its nature a freestanding claim, it's an extent of a benefit, right?

[00:23:08] Speaker 02:
And so in that instance, and we would agree and submit, that Roberson is talking about once there is a claim in front of

[00:23:16] Speaker 02:
The VA has an obligation to help the veteran fully and sympathetically to develop the claims in front of it.

[00:23:24] Speaker 02:
But Roberson, and no case that we are aware of, interprets that duty to sympathetically construe a filing to include an obligation for the VA to disregard the parameters of the claims submitted by the veteran

[00:23:40] Speaker 02:
and instead go to the medical records, however narrow or broad they may be, to root out claims that have not been made.

[00:23:49] Speaker 04:
What happens is a practical matter when a claim goes to the RO.

[00:23:55] Speaker 04:
Does the RO collect all the veterans medical records or just selected portions?

[00:24:02] Speaker 02:
It is my understanding they would submit everything that it's within their capacity to collect.

[00:24:08] Speaker 04:
So they would, any in-service treatment records, anything that happened at a VA hospital, they would collect those records in determining the claim.

[00:24:19] Speaker 02:
Yes.

[00:24:20] Speaker 02:
I think not in this case, but as a practical matter, that can sometimes be difficult when claims date back to the 60s.

[00:24:26] Speaker 01:
Otherwise, they quite severely put themselves at risk for lack of finality under 156.

[00:24:32] Speaker 01:
Yes.

[00:24:33] Speaker 02:
And they have a duty to assist also in collecting and reviewing an entire record.

[00:24:37] Speaker 01:
What's the current?

[00:24:39] Speaker 01:
So 1.155 has been amended, right?

[00:24:42] Speaker 01:
And what can you tell me about the continuing significance of the doctrinal point we are discussing?

[00:24:52] Speaker 02:
OK.

[00:24:52] Speaker 02:
So the version of 38 CFR 3.155A, which is an issue in this case, was effective through March 15, 2015.

[00:25:01] Speaker 02:
As of March 15, 2015, the section was amended.

[00:25:05] Speaker 02:
It was then recently amended, I think, in February of 2019, although consistently.

[00:25:10] Speaker 02:
The trend has been to make the claim submission process more formulaic.

[00:25:17] Speaker 02:
A specific form is now required.

[00:25:20] Speaker 02:
And there are more steps, more articulation of what is required and when and whose duty is where.

[00:25:30] Speaker 04:
What changes, if any, bear on the sufficiency of informal claims?

[00:25:39] Speaker 02:
Well, there is not an informal claim now, as there was in the version of the regulation that's at issue.

[00:25:48] Speaker 04:
It doesn't refer anymore to an informal claim.

[00:25:50] Speaker 02:
No.

[00:25:50] Speaker 02:
Now a veteran has to submit a claim on the form prescribed.

[00:25:54] Speaker 02:
If they were to, my understanding of the new regulation is if they were to communicate something that, under the old law, would resemble an informal claim, the VA will respond back with the form for them to submit.

[00:26:06] Speaker 01:
And give them something like a year or something to file it?

[00:26:09] Speaker 02:
That's the old rule.

[00:26:11] Speaker 02:
There was a rule.

[00:26:11] Speaker 02:
I'm not sure what the time delineation is.

[00:26:14] Speaker 01:
But are there many claims because they're looking back to the pre-amendment era in which this issue determining the scope of the old 3.155A still matters or is this a fading issue?

[00:26:32] Speaker 02:
that I can't say.

[00:26:35] Speaker 02:
I would assume there's, and I'm speaking outside the record here, but just given my understanding of how long it takes many veterans' claims to wind their way through the system, there are probably still a significant number of claims that could wind their way to this court under the version of 3.15 by the A that's now before you.

[00:26:54] Speaker 01:
Can I ask you this question?

[00:26:55] Speaker 01:
Do you

[00:26:57] Speaker 01:
agree or disagree that the standard that the Veterans Court articulated in Sellers is inconsistent with the standard it applied in this case?

[00:27:10] Speaker 01:
Are those two cases compatible or not compatible or what?

[00:27:13] Speaker 02:
They are distinguished on the facts.

[00:27:18] Speaker 02:
And I mean, we have filed a notice of appeal in Sellers.

[00:27:20] Speaker 02:
We don't believe Sellers was correctly decided under the applicable law.

[00:27:26] Speaker 02:
Sellers, in this case, are similar only insofar as that same version of 3.155A was in effect at the time both claims were made.

[00:27:34] Speaker 04:
I'm not understanding that.

[00:27:35] Speaker 04:
Under Sellers, wouldn't this case have to go back to be reconsidered by the Veterans Court?

[00:27:45] Speaker 02:
Seller, yes, but we, the United States government has taken an affirmative appeal.

[00:27:50] Speaker 04:
Yeah, yeah, I understand.

[00:27:51] Speaker 04:
But I think Judge Toronto was asking, where would this case come out under Sellers?

[00:27:56] Speaker 04:
And I understand you concede that this would have to go back under Sellers.

[00:28:02] Speaker 02:
No, because I think the facts are distinguishable.

[00:28:05] Speaker 02:
So in Sellers, the veteran made a generalized, or what the Veterans Court found was a generalized statement

[00:28:15] Speaker 02:
claim for all benefits from his in-service.

[00:28:20] Speaker 02:
He also had delineated physical conditions, but then at the end of the form that he submitted, he has a generalized statement of intent to seek benefits for all

[00:28:32] Speaker 02:
anything that could have arisen in service.

[00:28:34] Speaker 02:
And it was that generalized aspect on his claim form that the Veterans Court picked up on in Sellers.

[00:28:42] Speaker 01:
What sense does it make to say, you must say at the end of your claim form, and I want everything I'm entitled to?

[00:28:53] Speaker 01:
as opposed to just assuming in this regime, everybody is always, whether expressly or not, asking for everything they're entitled to.

[00:29:02] Speaker 02:
Well, right.

[00:29:04] Speaker 02:
The Secretary, we have filed a notice of appeal in Sellers.

[00:29:07] Speaker 02:
We don't believe that Sellers' standard that hinges in part off of this idea of a generalized statement of I want anything I can get is sufficient to meet the claim standard.

[00:29:18] Speaker 02:
But that's to be adjudicated in Sellers when we get there.

[00:29:22] Speaker 02:
But this case is distinguishable in that there is no generalized statement of intent to seek benefits

[00:29:31] Speaker 02:
for a wide time frame for anything arising from that accident, from anything arising from service.

[00:29:41] Speaker 03:
This case involves PTSD, correct?

[00:29:44] Speaker 02:
Yes, it does.

[00:29:44] Speaker 03:
OK, so I may not be correct here.

[00:29:48] Speaker 03:
So when you're looking at the onset of PTSD, don't you look for a trigger event?

[00:29:54] Speaker 03:
And there's no doubt, it seems to me, that this record reflects that the trigger event was her getting hit by that truck.

[00:30:02] Speaker 02:
Yes, that's correct.

[00:30:03] Speaker 03:
And she has been given... And the records from that time indicate a mental condition.

[00:30:10] Speaker 02:
Yes.

[00:30:11] Speaker 03:
So what's the difficulty here?

[00:30:13] Speaker 03:
I just don't understand.

[00:30:15] Speaker 03:
I can understand cases where the VA goes off on a major scavenger hunt looking at all records.

[00:30:24] Speaker 03:
But that's not the case here.

[00:30:26] Speaker 03:
This is a trigger event.

[00:30:28] Speaker 03:
You go back to the date.

[00:30:29] Speaker 03:
You look at the trigger.

[00:30:30] Speaker 03:
You look at the medical records surrounding that.

[00:30:33] Speaker 03:
And those indicate mental conditions.

[00:30:37] Speaker 03:
And in fact, some mental conditions prohibit or inhibit a veteran from actually identifying what their problem is.

[00:30:46] Speaker 03:
If you have anxiety, depression, and you have periods of forgetfulness, I mean, you may not remember to put down PTSD or something on this application.

[00:30:58] Speaker 03:
But the records reflect that.

[00:31:00] Speaker 03:
And she did point to the records and say, let me have my benefits from these records.

[00:31:07] Speaker 02:
She did point to benefits and say, she did point to four physical conditions and say look at my medical records in support of these four physical conditions.

[00:31:17] Speaker 02:
I take your point that someone could have a,

[00:31:22] Speaker 02:
mental or psychological condition that could prohibit them from accurately conveying that symptom.

[00:31:29] Speaker 02:
But that has never been alleged in this case.

[00:31:32] Speaker 02:
Ms.

[00:31:33] Speaker 02:
Shea has never sought or been given total disability.

[00:31:36] Speaker 02:
She's never been deemed incompetent.

[00:31:39] Speaker 03:
She also... She has been granted disability benefits for PTSD.

[00:31:46] Speaker 02:
She absolutely has.

[00:31:48] Speaker 03:
That invokes what I was just describing with respect to the trigger event.

[00:31:52] Speaker 03:
I mean, I think this case involves another degree of specificity as to which records to look at and what to look for.

[00:32:00] Speaker 03:
There's no danger here of going off on a scavenger hunt.

[00:32:06] Speaker 02:
Your Honor, we have a case in front of us that has a fairly narrow record.

[00:32:10] Speaker 02:
But what Ms.

[00:32:12] Speaker 02:
Shea is seeking is a broad statement from this court that the VA has some duty to disregard the specific parameters of a claim filed by a veteran and instead look at the totality of the medical records and root out conditions.

[00:32:28] Speaker 04:
No, her claim is that the VA has to look to the records that she's identified.

[00:32:35] Speaker 04:
If those records raise another condition, they have to consider that.

[00:32:38] Speaker 04:
I think that's not a claim that's as broad as your description.

[00:32:46] Speaker 02:
But in this instance, if we go back to the original records, Ms.

[00:32:50] Speaker 02:
Schaer was

[00:32:54] Speaker 02:
very injured from the truck accident.

[00:32:56] Speaker 02:
She had many more physical injuries from that truck accident than she even then sought in that formal claim in October 2007.

[00:33:06] Speaker 02:
Yes, she had a preexisting diagnosis of adjustment disorder with anxiety and depression.

[00:33:11] Speaker 02:
And in rehab after the accident, while still in service, there is a medical record that says she is continuing to feel symptoms.

[00:33:18] Speaker 02:
But it also says she is taking medication and seeing improvements.

[00:33:24] Speaker 02:
So in the same way that

[00:33:27] Speaker 02:
Yes, there might be medical records that have a mental condition.

[00:33:30] Speaker 02:
Mental conditions can also come and go, or they can always be there, but they can have varying effects on an individual veteran's life.

[00:33:38] Speaker 01:
But wouldn't what you're just discussing be a matter for consideration of what we would recognize as the informal claim?

[00:33:49] Speaker 01:
And then the RO might say, well, we don't think it supports the conclusion

[00:33:56] Speaker 02:
And in this instance, the first mention in any kind of submission and writing to the VA of anything that was non-physical, mental, emotional, psychological,

[00:34:14] Speaker 02:
was her notice of disagreement with the ratings on her physical conditions.

[00:34:18] Speaker 02:
That was in July 2008.

[00:34:19] Speaker 02:
And in that notice of a disagreement where she is seeking a higher rating for the physical disabilities, there's one sentence that says, I don't remember a lot of things I do even the same day.

[00:34:33] Speaker 02:
the VA exercising its duty to fully and sympathetically construe a claim from a veteran.

[00:34:41] Speaker 02:
Construe that single sentence in the course of an NOD that otherwise was fully concerned with her physical disabilities.

[00:34:48] Speaker 03:
Did the VA follow through on its obligations under Jones to help her obtain the medical records to look at the event and her conditions after the event?

[00:35:01] Speaker 02:
Yes, my understanding is the VA got a complete medical record and there's no claim that there was anything missing or not considered.

[00:35:11] Speaker 02:
But the VA did take that single sentence.

[00:35:14] Speaker 02:
I don't remember a lot of things I do, even the same day.

[00:35:16] Speaker 02:
That's between Appendix 302 and 305.

[00:35:21] Speaker 03:
So when the VA granted her disability for PTSD, it went back and looked at the records and found the trigger event, which she got hit by the truck.

[00:35:34] Speaker 02:
Yes.

[00:35:35] Speaker 03:
If the VA can do that on its own and for its own behalf, why can't it do it on behalf of a veteran?

[00:35:44] Speaker 02:
Well, it doesn't.

[00:35:45] Speaker 03:
The VA did establish that this accident was the onset of a PTSD.

[00:35:50] Speaker 03:
That was a trigger event.

[00:35:51] Speaker 02:
Yes.

[00:35:52] Speaker 03:
That's for the benefit of the, I guess, of the VA.

[00:35:57] Speaker 03:
But why can't that same finding uphold her request for her benefits, her informal claim?

[00:36:06] Speaker 02:
Because under law and regulation, a veteran is entitled to the earliest effective date of

[00:36:13] Speaker 02:
Claim for benefits or if that claim is made within a year of discharge the date of discharge so in this instance the VA the board and then the VA or the Excuse me the board and then the Veterans Court found that that July 2008 letter saying she she couldn't remember a lot of things was the first submission in writing by a claimant identifying

[00:36:38] Speaker 02:
the benefits sought.

[00:36:40] Speaker 02:
She didn't have to identify PTSD.

[00:36:42] Speaker 02:
She didn't have to cite to her diagnosis for anxiety, depression, or adjustment disorder, but she did need to put forth some evidence of intent to apply for benefits and identify the benefits sought.

[00:36:53] Speaker 04:
Let me see if I can understand it.

[00:36:55] Speaker 04:
If, in fact, she had received benefits for physical disabilities at this time under

[00:37:04] Speaker 04:
the regulation, is it 1.162, whatever it is, if there had then been a medical record showing that she had symptoms of PTSD, then that would have been considered to be an informal claim, right?

[00:37:22] Speaker 02:
No, medical records alone are never sufficient.

[00:37:25] Speaker 04:
I thought medical records were sufficient if you were already receiving benefits.

[00:37:30] Speaker 02:
Medical records are sufficient to substantiate an increased rating on something that has already been determined service connected.

[00:37:39] Speaker 04:
But not for a different benefit?

[00:37:40] Speaker 02:
But not for a different benefit, because that goes back to the statutory and regulatory definition that puts the onus on the claimant to identify the benefits sought in some kind of written writing.

[00:37:51] Speaker 02:
The VA needs something to work from.

[00:37:53] Speaker 02:
And this makes sense.

[00:37:54] Speaker 02:
The claimant, the veteran, is in the best position to know what ails them.

[00:37:59] Speaker 04:
Okay, let me ask you one other question here.

[00:38:02] Speaker 04:
A few minutes ago you were discussing the amendments to 155 and you said that the practice under the amended regulation now is if you have something which would have qualified as an informal claim before, now the veteran is sent a formal claim form to fill out, correct?

[00:38:22] Speaker 02:
I'm speaking a little bit outside of my comfort zone, but I believe that that is the current state of the regulation, a form.

[00:38:29] Speaker 02:
In order to perfect a claim now with the VA, you have to file it on a form.

[00:38:33] Speaker 04:
So it seems to me that perhaps the issue we're talking about is still relevant under the new regulation because it will come up in a little bit different context.

[00:38:43] Speaker 04:
In other words, was the VA obligated to send out a formal form to the veteran because

[00:38:51] Speaker 04:
the veterans having identified an informal claim at an earlier date, right?

[00:38:59] Speaker 02:
I don't think there's any allegation in this case that... No, no, no.

[00:39:03] Speaker 04:
This is a hypothetical.

[00:39:05] Speaker 04:
What I'm saying is the issue that's before us today doesn't necessarily become moot under the amended regulation because the issue will still arise.

[00:39:14] Speaker 04:
Did the VA have an obligation to send the formal claim form to the veteran because the veteran did something which would have earlier qualified as an informal claim?

[00:39:29] Speaker 02:
I don't know that that's a controversial statement.

[00:39:31] Speaker 02:
I think that the issue in this case that survives under the new regulation is Michelle's claim that a diagnosis or symptomology in the medical record is sufficient to raise a claim, even if the actual claim filed, formal or informal, is seeking

[00:39:52] Speaker 02:
benefits for wholly different conditions.

[00:39:55] Speaker 01:
I don't know.

[00:39:56] Speaker 01:
I'm just looking, and it feels like it might be relevant.

[00:40:00] Speaker 01:
I think the new regulations talk about an intent to file a claim.

[00:40:03] Speaker 01:
That's what triggers the obligation.

[00:40:07] Speaker 01:
And it says, an intent to file a claim must identify the general benefit, e.g., compensation, pension, closed parenthesis, but need not identify the specific benefit claimed or any medical conditions on which the claim is based.

[00:40:21] Speaker 02:
The intent, under the new regulation, the intent need not, but the ultimate claim would have to.

[00:40:28] Speaker 01:
The form has to be filled out.

[00:40:33] Speaker 02:
Right.

[00:40:34] Speaker 04:
Okay.

[00:40:34] Speaker 04:
Okay.

[00:40:34] Speaker 04:
Thank you, Ms.

[00:40:35] Speaker 04:
Fenn.

[00:40:35] Speaker 02:
Thank you.

[00:40:51] Speaker 00:
Your honors, I'd like to make a few brief points in response to the government.

[00:40:55] Speaker 00:
First, the government said that the duty elaborated in Roberson was limited to the facts of that case.

[00:41:00] Speaker 00:
But that is simply not what this court has said.

[00:41:02] Speaker 00:
For instance, in the Moody case, the Veterans Court had held that Roberson was limited to its facts, and this court vacated and remanded, holding that the Veterans Court had disregarded the broader holding of Roberson, that the agency must consider all potential claims raised by the evidence while considering any pro se application.

[00:41:21] Speaker 00:
The government also said that the veteran has an obligation to affirmatively request benefits, and that we're saying that medical records alone are sufficient.

[00:41:34] Speaker 00:
But our position is not that medical records alone are sufficient.

[00:41:39] Speaker 00:
It's that the agency must consider the veteran's application together with the record.

[00:41:44] Speaker 00:
And critically, this court has never held that the veteran must affirmatively name a disability.

[00:41:50] Speaker 00:
That's just not in the case law.

[00:41:52] Speaker 00:
Rather, what this court has said is that the agency must look at the veteran's application together with a record, consider all potential claims raised by the evidence.

[00:42:00] Speaker 00:
And finally, the government says that the specificity in the veteran's application somehow argues against affording her benefits.

[00:42:09] Speaker 00:
But that's not the case.

[00:42:10] Speaker 00:
That might be the case in adversarial civil litigation, where you hold parties adopted to what they said and no more.

[00:42:17] Speaker 00:
But in the pro-claiming system, the non-aversarial pro-claiming system, where the agency has an obligation to help veterans obtain all benefits to which they're due, there is no place for presumption limiting veterans to what they request explicitly.

[00:42:31] Speaker 00:
So for those reasons, we urge this court to vacate the Veterans Court decision and remand to the agency to apply the correct legal standard.

[00:42:38] Speaker 00:
Thank you.

[00:42:39] Speaker 04:
Okay, thank you, Mr. Belver.

[00:42:40] Speaker 04:
I thank both counsel and cases submitted.