Argument Preview

Another case being argued this month at the Federal Circuit that attracted an amicus brief is Sellers v. Wilkie. In this case, the government appeals the grant of benefits to a veteran. The government alleges that this case presents the question of “[w]hether a claimant’s general statement requesting benefits on a formal claim form that identifies specific disabilities constitutes a claim for all ‘reasonably identifiable’ diagnoses within the claimant’s records.” This is our argument preview.

The government argues in its opening brief that, in this case, the Court of Appeals for Veterans Claims “invoked a new rule of law to set aside a Board of Veteran’s Appeals decision denying an earlier effective date of the award of service connection.” According to the government, this new rule is that, “if a claimant submits a generalized statement requesting benefits, VA must search through the claimant’s records and determine whether additional conditions were claimed based on ‘reasonably identifiable’ diagnoses in the record.” The government argues that the lower court “provided no citation to statute, regulation, or judicial precedent as specific authority for its new rule.” Moreover, it claims that this new rules “conflicts with existing law.”

In response, the veteran argues that “[t]he Secretary’s choice to appeal the Veterans Court’s decision in Mr. Seller’s case contradicts the VA’s own statement of policy” indicating “that VA is obligated to assist a claimant in developing the facts pertinent to the claim.” The veteran takes the position that “[t]he Secretary is both right and wrong” with respect to its position that “there is no statute or regulation requiring VA to search service records for the purpose of adding to Mr. Sellers’s claim unrelated diagnoses he did not explicitly identify on his formal application.” The Secretary is right, says the veteran, “that there is no statute or regulation that requires him to search a claimant’s service records.” The Secretary is wrong, however, says the veteran, because the Federal Circuit “has consistently held that pro se filings must be read liberally by the Secretary,” and “[t]he Secretary’s position in this appeal relies upon his regulatory elimination of informal claims to permit VA to now read pro se filings in a narrow fashion adverse to claimants.”

In its repy brief, the government maintains its position. The brief argues that, “though Mr. Sellers attempts to stitch together various veterans law concepts (the duty to assist, the sympathetic reading doctrine) to support his argument, he fails to identify any legal authority that requires VA to add, sua sponte, unclaimed and unrelated medical conditions to a claim.” Furthermore, the brief explains that the requirement to “provide some indication to VA of the symptoms or medical conditions being claimed . . . is entirely consonant with the sympathetic reading doctrine and the duty to assist, two doctrines that expand the scope of claims that are actually raised, and govern the division of responsibilities within the claim process.” According to the government, “[t]hese doctrines do not . . . create claims for unidentified conditions.”

As mentioned above, this case attracted an amicus brief. Filed by the National Organization of Veterans’ Advocates, Inc. and the National Veterans Legal Services Program, the brief argues that “[t]he Veterans Court’s decision is consistent with the flexible, pro-claimant veterans’ benefits process established by Congress, VA, and [the Federal Circuit’s] precedent.” These organizations argue that the Secretary’s “policy arguments” are misguided for several reasons: “VA adjudicators already consider these issues;” “there is no inequity in helping claimants who make a general request for benefits without prejudicing those who do not;” the Veterans Court’s decision does “not impose an undue burden on VA;” and the decision is “consistent with the rule that veterans are generally presumed to be seeking the maximum benefit allowed by law and regulation.”

We will keep track of this case and report on developments.