Sprinkle v. McDonough, 20-3454
| Decision Date | 31 August 2021 |
| Docket Number | 20-3454 |
| Parties | Gary A. Sprinkle, Appellant, v. Denis McDonough, 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.
Jonathan H. Davis, Esq. VA General Counsel (027)
Before MEREDITH, Judge.
The appellant, Gary A. Sprinkle, through counsel appeals an April 7, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than December 18, 2010, for the award of benefits for post-traumatic stress disorder (PTSD) and dismissed as moot the matter of entitlement to an effective date earlier than December 18 2010, for the award of a total disability rating based on individual unemployability (TDR7) due to service-connected disabilities. Record (R.) at 4-15. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matters for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Army from August 2005 to October 2009, including service in Iraq. R. at 2131. On August 6, 2010, he met with an Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) case manager, who was also a registered nurse, and underwent a psychosocial assessment at a VA medical center (VAMC). R. at 204-08; see R. at 209-10. The case manager recorded his complaints of financial difficulties and mental health symptoms experienced since discharge, R. at 205-06, and that they discussed "VA health care and benefits," R. at 207. Specifically, the case manager noted that they "[d]iscussed service[-]connected disability and agencies [that] may assist [him] with placing a claim"; she provided him with the contact information for the Adams County Veterans Affairs office; and she informed him that the Adams County office "may be able to provide rent, food[, ] or utilities assistance depending on his income." R. at 205. The record further reflects that the case manager would contact a VA psychiatric clinic to schedule an appointment for him and that she provided him with her contact information, a pamphlet regarding the OEF/OIF program, and a letter. R. at 206-07. In the OEF/OIF case manager's letter, she wrote the following: R. at 209; see R. at 207-08.
A VA progress note dated August 18, 2010, reflects that the case manager contacted the appellant by telephone; the appellant expressed unfamiliarity with VA processes and that he had wanted to attend a state fair "on the day for [v]eterans," but his "fear and anxiety about being in a public place with a large number of people stopped him from going." R. at 211; see R. at 211-12. Further, the case manager noted the following from the conversation:
[Case manager] inquired if [the appellant] had contacted [the] Adams County Veterans [A]ffairs office[] regarding assistance with placing a service[-]connected disability claim. [The appellant] questioned if [the] rating would be permanent. [Case manager] informed him some ratings are not permanent and are re-evaluated periodically as veterans['] conditions improve. He does not want to take away from others who were hurt. Informed [him] he would not be taking away from others and he is important. Informed [the appellant that] if he would receive a disability rating he could still be employed and may be eligible for services such as [v]ocational [Rehabilitation services. [He] expressed understanding.
Plan: . . . Continue to encourage [him] to apply for service[-]connected disability. R. at 211-12. Subsequent VA progress notes reflect that the case manager assisted the appellant in obtaining medication and that she attempted to reconnect with him in November 2010 "regarding VA services." R. at 2207; see R. at 2226-28.
The appellant filed formal disability compensation claims for PTSD and depression on December 18, 2010. R. at 2490-509. In April 2011, he submitted a statement in support of his claim, explaining that he was concerned about whether the effective date of an award of disability compensation would be the date after his discharge from service because he had "been seeking benefits and [his] disability ha[d] been evident since [his] discharge." R. at 2453; see R. at 2452-53. He cited 38 C.F.R. § 3.155, pertaining to informal claims, and explained that his disability existed since his discharge and that he sought medical care within 12 months of discharge. R. at 2453. He also attached the August 6, 2010, letter from his case manager reflecting that they discussed "VA health care and benefits." R. at 209.
Later that month, a VA regional office (RO) granted entitlement to disability compensation for PTSD with depression and assigned a 70% disability rating, effective December 18, 2010, and deferred the matter of entitlement to TDR7. R. at 2440-42. The appellant disagreed with the assigned disability rating and effective date, arguing in part that an effective date of October 2, 2009, was warranted because there is a VA treatment record that "exists within [1] year of. . . separation and a claim was received within [1] year of that record." R. at 2348; see R. at 2347-50; R. at 2355 ().
He submitted another statement in support of his claim in April 2012, asserting that he "started [his] claim process within [1] year of [his] separation by getting diagnosed by a VA [d]octor, .... communicat[ing his] intent to file for benefits[, which] was recorded in writ[]ing," and filing "a formal claim within [1] year of receipt of [the VA treatment record]." R. at 272. In September 2012, the RO awarded entitlement to TDIU, effective December 18, 2010. R. at 2242-47, 2257-58, 2261-62.
In a November 2014 Statement of the Case (SOC), the RO denied entitlement to an earlier effective date for PTSD and TDR7, in part because the August 18, 2010, VA treatment record reflects that the case manager "did not state . . . that [the appellant] wanted to file a claim for benefits, only that [he] understood [his] rights to file such [a] claim." R. at 1569; see R. at 1536-71. The appellant perfected his appeal and argued that the SOC does not accurately reflect his conversations with his case manager during which he expressed an intent to file a claim. R. at 1439-43. He testified before the Board in January 2018 that the documented conversations with his case manager collectively constitute an informal claim under the pre-2015 version of 38 C.F.R. § 3.155 or that the doctrine of equitable tolling should be applied to award an earlier effective date. R. at 978-79; see R. at 967-1006. The Board issued a decision in May 2018, denying entitlement to an effective date earlier than December 18, 2010, for the award of disability compensation for PTSD, granting a 100% initial disability rating for PTSD, and dismissing as moot the matter of entitlement to an effective date earlier than December 18, 2010, for the award of TDR7. R. at 898-905.
The appellant appealed the May 2018 Board decision to the Court, which issued a July 2019 memorandum decision remanding the matters of earlier effective dates for PTSD and TDR7. R. at 381-88. The Court found that the Board failed to provide a meaningful analysis of 38 C.F.R. §3.155, including a discussion of the appellant's explicit argument "before VA that he was entitled to an earlier effective date, relying in part on § 3.155 and communications between himself and his VA OEF/OIF case manager, which were memorialized in his VA medical record." R. at 386 (citing the OEF/OIF case manager's November 2010 note (R. at 2207); August 20, 2010, note (R. at 2228); August 18, 2010, note (R. at 211-12); and August 6, 2010, note (R. at 208-10)). However, the Court dismissed the appeal of the Board's denial of an earlier effective date for PTSD based on principles of equitable tolling because the appellant had abandoned that issue. R. at 381, 387. The Court further found that "because the Board's dismissal of the matter of entitlement to an earlier effective date for TDR7 relied largely on its determination that an earlier effective date for PTSD was not warranted," remand was also warranted for that matter. R. at 387.
The Board issued the decision on appeal in April 2020, denying entitlement to an effective date earlier than December 18, 2010, for the award of benefits for PTSD and dismissing as moot the matter of entitlement to an effective date earlier than December 18, 2010, for the award of a TDR7 rating due to service-connected disabilities. R. at 4-15. This appeal followed.
The appellant asserts that the Board committed clear error when it denied an effective date earlier than December 18, 2010 for the award of PTSD because his OEF/OIF case manager reduced to writing his intent to file a claim for benefits prior to that date. Appellant's Brief (Br.) at 7-24. In support of that argument, he avers that more than one document may serve as an informal claim but, even if not, the case manager's August 6, 2010, note or August 18, 2010, telephone note, standing alone, satisfies...
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