Last week three argued cases attracted amicus briefs. One was a veterans case, Sellers v. Wilkie. In it, the Federal Circuit considered “[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.” The National Organization of Veterans’ Advocates, Inc. and the National Veterans Legal Services Program filed an amicus brief supporting the claimant. Here is our argument recap.
David R. Pehlke argued for the government. In his opening remarks, he maintained that neither party on appeal is defending the lower court’s decision as it is written. He explained that the decision cites no law for the rule it adopted, which required VA to search for unidentified disabilities when the veteran identified five specific disabilities on the required, completed form that is the basis for the veteran’s claim.
In response to a question from Judge Dyk, Pehlke indicated that he did not think a veteran has the ability to acquire his or her service records from VA before submitting a claim. He admitted, however, that his knowledge was limited to the relevant regulations related to claims, rather than just requests for information. Judge Hughes also requested clarification on whether this information might be obtainable from the relevant branch of the armed services rather than the VA. In response to a follow up question from Judge Hughes, Pehlke clarified that the duty to assist “kicks in” only when a claim is made.
Judge Clevenger then transitioned the discussion to what he viewed as the relevant question, the degree of specificity required in a claim form. Both he and Pehlke emphasized that the claim here was a formal claim and not an informal one. Pehlke admitted that the level of specificity needed to start an informal claim during the relevant time of this case would have been the same as the level of specificity that would be permissible on a claim form.
Kenneth M. Carpenter argued for Sellers. He began by responding to Judge Dyk’s earlier question. Carpenter explained that prior to the filing of an application, there is no VA regulation obligating VA to provide service records or treatment records unless those records are already present in an established claim. At the relevant time here, Carpenter explained, the rule was that the duty to assist is not triggered by the filing of an informal claim. Service records, he explained, can be obtained from the national archives.
With respect to the issue of specificity, Carpenter agreed it is the “central issue” in this case. Carpenter made it clear that it is Sellers’ position that there is no specificity requirement under the law for a formal claim. Judge Dyk asked if by including the statement “please see if I have a claim for service connection” on a claim form a veteran could eliminate the requirement to identify a particular disability. Carpenter responded that, if the form identified no particular disability, it would probably be considered an incomplete claim. But in this case, Carpenter went on, Sellers provided enough information for VA to identify service records that showed an injury while in service. Because a formal claim was made, that triggered, he argued, the duty to assist the veteran. If he identifies some specific disability on the form, Carpenter argued, VA has the obligation to investigate not only that potential disability but also any other disability supported by the service records. But Carpenter went on to say that even if the veteran just identifies an injury or aggravation (without identifying a specific disability), Carpenter argued that is also sufficient to trigger the duty to assist and identify any disability supported by the service records. He argued that the claim is for compensation, not for compensation only for a particular disability. In response to clarifying questions, Carpenter answered that all that is required to trigger a claim is a completed form.
In rebuttal, Judge Hughes asked Pehlke to consider the situation where a form identifies a medical record but does not identify a specific disability associated with that medical record, but the medical record itself identifies a disability and that disability is adjudicated to be service connected. Judge Hughes then asked: “is the mere identification of that medical record . . . enough for an effective date” for the claim to be the date of the form? Judge Dyk then followed up by asking whether precedent with respect to informal claims may be applied with respect to formal claims. Pehlke responded that the form would be “bounced back” to the applicant, but it would begin the process. “The form would be considered incomplete because it does not identify the nature of the sickness,” he explained. The claim is insufficient if it fails to identify the disability for which compensation is sought, he argued.
We will keep track of this case and report on developments.