Ever file an informal VA Claim?
Did you know that you have to formalize the claim with the VA? A lot of Vets don’t – shockingly, a lot of VSOs don’t know this either.
This has been the law since June 2012 — if not longer.
I’m going to tell you what it takes to formalize an informal claim in just a minute.
First, let me tell you why I’m talking about Informal Claims for VA Benefits.
The Court of Appeals for Veterans Claims issues a couple dozen or so precedential opinions each year.
Many of these decisions have big impacts, and so they get more coverage in the Veterans Law Community.
There are, however, a series of CAVC decisions that got “lost in the shuffle”, but that provide a lot of POWER to Veterans in their Regional Office Appeals and BVA Hearings.
I intend to look at 8 of these case over the next 2 months.
Today, I’d like to take a look at Jernigan v. Shinseki, CAVC # 10-1226 (June 19, 2012).
Facts of the Jernigan case.
Jernigan, a Veteran who served in the US Navy from 1989 to 1995, filed a claim for benefits in July 1995. In August 1995, the VA responded asking that she fill out a “formal claim”, a copy of which it attached.
For reasons not explained in the decision, Jernigan did not send the form back to the VA until October 2001. She was granted service-connection in July 2002, and assigned an effective date of October 2001, the date that the VA received the formal claim form.
Jernigan appealed, all the way to the Court of Appeals for Veterans Claims, arguing that she was entitled to a 1995 Effective Date, as that is when she first filed her claim.
To simplify the arguments, the dispute at the CAVC seems to have centered on what constitutes a formal claim for disability compensation and whether the VA can require that such a form be used.
What is a “formal claim”?
Curiously, the term “formal claim” has never been defined in a regulation or case – at least not yet.
The CAVC points this out in Jernigan, and surmises that the term originates from 38 CFR 3.160(b), in which an “original claim” is defined as “An initial formal application on a form prescribed by the Secretary.”
Right now, that form is VA Form 21-526. This may change in 2014, as the VA makes ANOTHER attempt to digitize its claims process.
[This is at least the 3rd attempt to digitize the claims process; there will be more. Until the VA gets a clear handle on the ACTUAL process, all attempts to automate it will fail. Trust me. I’ve spent many years automating a law firm. We only succeeded at become paperless once we had a clear handle on the ACTUAL process underlying what we were trying to automate.]
Can the VA require that you submit a Formal Claim form?
In a word: yes.
In its 2012 decision in Jernigan, the Court of Appeals for Veterans Claims said this:
To the extent that no formal finding has been made that [requires] that VA receive a formal application form before benefits may be paid is a valid exercise of the Secretary’s rulemaking authority, we make such a finding today.
Yes, the holding is limited.
But for now, if you file and informal claim for Veterans benefits, follow the VA’s guidance and submit the formal application as soon as possible.
The formal application is not that hard to fill out (its just an annoying bureaucratic hurdle you have to jump through). Veterans can supplement it with additional information, and you are not limited to what you can fit on the formal application form.
Bottom line: There are bigger battles to be fought with the VA. Fill out their silly form, and move on with your life. The VA currently gives you a year to formalize the informal claim, but what do you gain by waiting that long?
Formalize it as soon as they send you a copy of VA Form 21-526.
The Coming Battle.
There is a battle looming in the field of Veterans’ Benefits Law. The battle is forming along the lines of 2 long-standing principles of American Jurisprudence: Chevron-Deference and the Veteran-Friendly-Mandate.
See if you can spot the battle lines in this quote from the court in Jernigan:
If VA opts in some cases to treat informal claims as de facto applications, that is consistent with a veteran-friendly mandate and should be encouraged when possible (such as when a veteran is otherwise diligently pursuing his claim, unlike Ms. Jernigan). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (stating that “[t]his court and [**12] the Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant” and describing “the historically non-adversarial system of awarding benefits to veterans”); Trilles v. West, 13 Vet.App. 314, 326 (2000) (en banc) (describing “the VA pro-claimant nonadversarial claims adjudication process”). If VA opts not to, however, the statute and regulation do not permit the Court to force VA to do so.
The VA can treat Veterans very, very different, and nobody has oversight.
The Court all but encouraged the VA to treat some Veterans to a more “relaxed” rule, so long as the Veteran is “diligently pursuing his claim”
Will a Veteran that uses poor grammar – or grammar that sounds “urban” – be viewed as diligently pursuing a claim?
What about Veterans with TBI that can’t easily access the electronic platforms that the VA is currently setting up?
Or Veterans that can’t speak English because Spanish is their native tongue? Will their responses written in Spanish, or beginner level English, be viewed as “diligent pursuit of a claim”.
What about Veterans fighting the Culture of Rape in the Dept of Defense? Will their VA claims be seen as “political arguments” and not “diligent pursuit of benefits”.
My point is this: the law currently allows the VA to treat some Veterans more favorably than others, and the Court cannot review that treatment, so long as the VA can argue that the special treatment is protected by the VA’s “Veteran-Friendly Mandate”. (“We just want to help THIS Veteran, Judge.”)
If the VA doesn’t want to treat a specific Veteran differently – or more favorably – the VA need only cite Chevron and claim that the Court doesn’t have authority to disturb VA regulations. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)(Chevron deference states that courts “may not disturb an agency rule unless it is ‘arbitrary or capricious in substance, or manifestly contrary to the statute'”).
These principles are not mutually exclusive, and they are certainly can exist together. But so long as these Courts adhere to the idea that it the Veteran-Friendly Mandate trumps an absolutist view of Chevron deference, it will presents an unworkable dilemma for Veterans:
If the VA – or an employee or supervisor at the VA – likes you (or your race, religion, political views, etc), they can invoke the Veteran Friendly Mandate and treat you better and different.
If the VA – or an employee or supervisor at the VA – doesn’t like you (or your skin color, or your religion, or your political beliefs) they need only invoke the Power of Chevron deference.
Now, let’s be realistic. Congress could easily resolve this dilemma by passing a statute.
Let me know when you’re done laughing: Congress passing a statute sounds like the punch line to a great knock-knock joke.
Congress Passing a Statute.
[Insert Peals of laughter].
*This post originally published on December 30, 2013. It has been edited and updated to be more current.