Sprinkle v. Wilkie

• Decision Date: 29 July 2019
• Docket Number: 18-4784
• Parties: Gary A. Sprinkle, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Gary A. Sprinkle, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 18-4784

United States Court of Appeals For Veterans Claims

July 29, 2019

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.

MEMORANDUM DECISION

MEREDITH, JUDGE:

The appellant, Gary A. Sprinkle, through counsel appeals a May 31, 2018, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than December 18, 2010, for the award of disability compensation 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 (TDIU) due to service-connected disabilities.Record (R.)at 3-10.Additionally, the Board awarded entitlement to an initial 100% disability rating for PTSD.This is a favorable finding that the Court may not disturb.SeeMedrano v Nicholson, 21 Vet.App. 165, 170(2007);see alsoBond v. Derwinski, 2 Vet.App. 376, 377(1992)(per curiam order)("This Court's jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant.").The appellant expressly limits his arguments on appeal to entitlement to an earlier effective date for PTSD and TDIU on the theory that he filed an informal claim prior to December 18, 2010.Appellant's Brief (Br.)at 8.Therefore, the Court finds that he has abandoned his appeal for an earlier effective date based on principles of equitable tolling and the Court will dismiss the appeal as to the abandoned issue.SeePederson v McDonald, 27 Vet.App. 276, 285(2015)(en banc).

This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a)and7266(a).Single-judge disposition is appropriate.SeeFrankel v. Derwinski, 1 Vet.App. 23, 25-26(1990).For the following reasons, the Court will vacate the Board's decision denying an effective date earlier than December 18, 2010, for PTSD, and dismissing as moot the appeal for an effective date earlier than December 18, 2010, for TDIU, and remand the matters for further proceedings consistent with this decision.

I.BACKGROUND

The appellant served on active duty in the U.S. Army from August 2005 to October 2009, including service in Iraq. R.at 1236.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 1342-46.The case manager recorded his complaints of financial difficulties and mental health symptoms experienced since discharge, R. at 1343, and that they discussed "VA health care and benefits,"R. at 1345.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 1343.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 and a pamphlet regarding the OEF/OIF program.R. at 1344-45.

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 1338.The case manager noted that she"[r]eviewed . . . [that] VA is available for him,""inquired if [he] had contacted [the]Adams County Veterans Affairs office[] regarding assistance with placing a service[-]connected disability claim," and "[c]ontinue[d] to encourage [him] to apply" for disability benefits.R. at 1338-41.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 1312;seeR. at 1333.

The appellant filed formal disability compensation claims for PTSD and depression on December 18, 2010.R. at 1595-614.In March 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 1558.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.Id.He also attached an August 6, 2010, letter from his case manager reflecting that they discussed "VA health care and benefits."R. at 1561.

The following 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 TDIU. R. at 1534-41.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 1452-53;seeR. at 1461(arguing that the effective date should be the date after discharge because, pursuant to 38 C.F.R. § 3.157(b)(1), "the 'date of receipt of claim' should be adjusted to the date of [his] VA hospital exam[ination]").

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 one year of receipt of [the VA treatment record]."R. at 1402.In September 2012, the RO awarded entitlement to TDIU, effective December 18, 2010.R. at 1377-80.

In a November 2014 Statement of the Case(SOC), the RO denied entitlement to an earlier effective date for PTSD and TDIU, 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 584, 586.The appellant perfected his appeal and argued that the SOC does not accurately reflect his conversations with his case manager in which he expressed an intent to file a claim.R. at 546.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 83-84;seeR. at 54-55, 72-111.

On May 31, 2018, the Board denied entitlement to an effective date earlier than December 18, 2010, for the award of disability compensation for PTSD and dismissed as moot the matter of entitlement to an effective date earlier than December 18, 2010, for the award of TDIU. R. at 3-10.This appeal followed.

II.ANALYSIS

The appellant argues that the Board erred in denying an effective date prior to December 18, 2010, for PTSD and TDIU because the August 2010 evidence of record demonstrates that he submitted an informal claim within 1 year of discharge; or alternatively, that the Board failed to provide an adequate statement of reasons or bases for its decision.Appellant's Br.at 8-20;Reply Br.at 1-15.The Secretary disputes these contentions and urges the Court to affirm the Board's decision.Secretary's Br.at 5-24.

Pursuant to 38 U.S.C. § 5110, which governs the assignment of an effective date for an award of benefits,

the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. . . .The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release.

38 U.S.C. § 5110(a)-(b)(1);see38 C.F.R. § 3.400(2017).^[1]

One of the bedrock principles of veterans law is that "the character of the veterans' benefits statutes is strongly and uniquely pro-claimant."Hodge v. West, 155 F.3d 1356, 1362(Fed. Cir.1998)(citingCoffy v. Republic Steel Corp., 447 U.S. 191, 196(1980);McKnight v. Gober, 131 F.3d 1483, 1485(Fed. Cir.1997);Smith v. Brown, 35 F.3d 1516, 1522(Fed. Cir.1994)).Accordingly, it is well settled that VA has a duty to sympathetically read the filings of pro se claimants.SeeMoody v. Principi, 360 F.3d 1306, 1310(Fed. Cir.2004);Roberson v. Principi, 251 F.3d 1378, 1384(Fed. Cir.2001);Hodge, 155 F.3d at 1362.

Under regulations in effect in 2010, a claim of entitlement to VA benefits could be either "a formal or informal communication in writing requesting a determination of entitlement[, ] or evidencing a belief in entitlement, to a benefit."38 C.F.R....