Germany v. Wilkie
| Decision Date | 06 July 2020 |
| Docket Number | 19-6131 |
| Parties | Jerome L. Germany, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Jerome L. Germany VA General Counsel.
Before GREENE, Senior Judge.[1]
The pro se appellant, Jerome L. Germany, appeals an August 15, 2019 decision of the Board of Veterans' Appeals (Board) denying entitlement to an effective date earlier than November 4, 2016, for service connection for post-traumatic stress disorder (PTSD).[2]Record (R.) at 3-7. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. See Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's decision.
Mr. Germany served on active duty in the U.S. Navy from November 1988 to September 1992. R. at 1553.
In April 2008, Mr. Germany sought VA disability compensation benefits for fatigue and breathing problems. R. at 1695. He authorized VA to obtain his medical records but did not list any identifying information such as names of current treatment providers, dates of treatment or hospitalizations, or conditions for which he was treated. R. at 1685-86. The VA regional office (RO) requested additional information from Mr. Germany concerning his claim. R. at 1670-77. But Mr. Germany responded that he did not have additional information to provide and that he was not then receiving medical treatment for breathing problems or fatigue. R. at 1667.
The RO informed Mr. Germany that VA had requested his service treatment records (STRs) from the Navy and twice requested that he provide any STRs in his possession. R. at 1656-57, 1665-66. The RO also asked Mr. Germany to authorize release of his STRs from the Naval Reserve Personnel Center (NRPC). R. at 1654. In December 2008, the RO advised Mr. Germany that his claim would be denied because he had failed to submit any STRs in his possession or any medical evidence of breathing or fatigue problems. R. at 1648-49.
In March 2009, Mr. Germany, with the assistance of a representative, gave the RO a completed consent form to allow the release of his STRs from the NRPC. R. at 1646-47. In October 2009, however, the RO informed Mr. Germany that VA had made four requests for his STRs from the NRPC but was having difficulties obtaining them. R. at 1585-86. The RO suggested that Mr. Germany "may be able to furnish documents that can substitute for service treatment records" and further advised Mr. Germany that "[e]ven though we have asked for this information, it is your responsibility to see that VA receives it (except for any evidence, kept by the VA, military or any other federal government agency)." Id.
R. at 1583 (emphasis added). The NRPC representative then instructed VA that to receive hard copies of the STRs, Mr. Germany "must personally submit to the NRPC a request for his STRs via facsimile." Id. Later that month, the RO told Mr. Germany that NPRC policy and regulations required him to fax his request for STRs directly to the NRPC. R. at 1581-82.
On December 28, 2009, the RO informed Mr. Germany that "[o]n November 25, 2009, we wrote and asked you to send us copies of [STRs] from 11-25-1988 to 09-04-1992" but that "[b]ecause we have not received [the records], we must deny your claim." R. at 1576. The RO further advised Mr. Germany that "[i]f we get the evidence by April 20, 2010, we can continue processing your claim" but that "[i]nformation received after April 20, 2010, must be considered a new claim." Id. Mr. Germany did not submit the service records or appeal the RO's decision before the April 20, 2010, deadline.
On November 4, 2016, Mr. Germany informed VA that he intended to file a claim for disability compensation benefits, R. at 1563, and several days later, sought service connection for PTSD/chronic adjustment, depression, and anxiety. R. at 1557. The RO then obtained Mr. Germany's mental health records. After a May 24, 2008, VA mental health screening, Mr. Germany tested positive for depression and negative for PTSD. R. at 1513-14. However, he was diagnosed with PTSD in October 2016. R. at 1524.
In July 2017, the RO awarded Mr. Germany service connection for PTSD with a disability rating of 50%, effective November 4, 2016, the date he announced his intent to file a claim. R. at 1146-49. Mr. Germany filed a Notice of Disagreement (NOD) in May 2018, challenging both the assigned effective date and the disability rating for his PTSD. R. at 529-30. The RO issued a Statement of the Case (SOC) in January 2019, continuing the assigned rating and effective date, R. at 347-71, and Mr. Germany appealed to the Board in February 2019. R. at 27-36.
In August 2019, the Board denied an effective date earlier than November 4, 2016, for Mr. Germany's service-connected PTSD. R. at 2-9. The Board found that there was no evidence that Mr. Germany had filed a claim, formally or informally, before November 4, 2016. R. at 5. This appeal followed.
The general rule for assessing the effective date for an award of benefits provides that "the effective date of an evaluation . . . will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400 (2020); see 38 U.S.C. § 5110(a) (). The Board's determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Evans v. West, 12 Vet.App 396, 401 (1999). To determine whether a finding is clearly erroneous, "this Court is not permitted to substitute its judgment for that of the [Board] on issues of material fact; if there is a 'plausible basis' in the record for the factual determinations of the [Board] . . . [the Court] cannot overturn them." Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). When reviewing such Board determinations, the Court liberally construes arguments made by pro se appellants. De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992); see Calma v. Brown, 9 Vet.App. 11, 15 (1996) (). As with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court." Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
Construing Mr. Germany's pro se informal appeal sympathetically, see Calma, 9 Vet.App. at 15; De Perez, 2 Vet.App. at 86, he contends that his 2008 claim for breathing trouble and fatigue encompassed an informal pending and unadjudicated claim for PTSD, and that therefore, the effective date for his award of PTSD should be May 24, 2008, the date of his depression diagnosis. Appellant's Informal Brief (Br.) at 1-2, 8; see Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007); see also Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) ("A claim for benefits, whether informal or formal remains pending until it is finally adjudicated."). He also argues that he is entitled to an earlier effective date because VA was required to reconsider his 2008 claim after VA received his service records and associated them with his claims file. See Appellant's Informal Br. at iii-iv.
The Secretary responds that the Board's conclusion that Mr. Germany had not filed a claim for PTSD before November 4, 2016, is plausible considering the lack of evidence of record, and thus, is not clearly erroneous. Secretary's Br. at 5.
The Board is not required to anticipate claims for disabilities yet to be "identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during its development." Brokowski v. Shinseki, 23 Vet.App. 79, 88 (2009). But, the Board must consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also 38 C.F.R. § 3.155(a) (2008) ().[3] Further, a claim is not necessarily limited in scope to a particular diagnosis but rather construed "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in...
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