Sellers v. Wilkie

• Decision Date: 15 July 2020
• Docket Number: 2019-1769
• Citation: 965 F.3d 1328
• Parties: Robert M. SELLERS, Claimant-Appellee v. Robert L. WILKIE, Secretary of Veterans Affairs, Respondent-Appellant
• Court: U.S. Court of Appeals — Federal Circuit

965 F.3d 1328

Robert M. SELLERS, Claimant-Appellee

v.Robert L. WILKIE, Secretary of Veterans Affairs, Respondent-Appellant

2019-1769

United States Court of Appeals, Federal Circuit.

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, Washington, DC, argued for respondent-appellant. Also represented by Ethan P. Davis, Martin F. Hockey, Jr., Robert Edward Kirschman, Jr. ; Brian D. Griffin, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Benjamin C. Block, Covington & Burling LLP, Washington, DC, for amici curiae National Organization of Veterans' 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 represented 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 practical matter, this case involves Mr. Sellers’ attempt to establish 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 claim¹ 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 disabilities occurring during active duty service." J.A. 140. Mr. Sellers contends that the law in effect in 1996 requires his remarks to be understood as a formal claim for compensation 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 challenges 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 requests.

I

On September 18, 2009, Mr. Sellers filed an informal claim³ with the Department of Veterans Affairs ("VA") 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 examination for mental disorders at the VA medical center in Montgomery, 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 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 September 18, 2009, an informal claim for service connection for psychiatric disability, claimed as PTSD... It is noted that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. 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 entitlement arose, whichever is later, citing 38 C.F.R. 3.400. As September 18, 2009 is the later, it was deemed the effective 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 effective 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 40⁵ (entitled "Remarks"): "Request s/c [service 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 sympathetically read to require the VA to "grant all possible benefits." 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 medical records and was aware of his in-service medical treatment 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 essence 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 apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing."⁶ In particular, the 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 neuropathy. Because Mr. Sellers’ March 1996 filing made no reference to a claim for benefits related to a psychiatric condition and only requested benefits for "disabilities occurring 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 service 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 claim." Sellers , 30 Vet. App. at 163. Nonetheless, the Veterans Court faulted the Secretary for missing "a crucial additional 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 condition. 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 requiring 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 diagnosis reflected in service treatment records in VA's possession 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...