In a January 26, 2022, panel decision, the Veterans Court reiterated its holding in Bailey v. Wilkie, 33 Vet.App. 188 (2021). In doing so, the Court reminded the Secretary that when it came to the informal claim for service connection “…a separate formal claim is not necessary for VA to be required to recognize, develop, and adjudicate a claim for secondary service connection that is reasonably raised by the record during the course of adjudicating a formally initiated claim for a service connected disability.”
The Court said it was considering, in this case, a novel question: “whether, in similar procedural circumstances, Bailey’s holding extends to claims for secondary service connection expressly raised to the Board.”
With respect, I’m don’t see a novel issue: the only material difference between Bailey and Wilson is that the issue of secondary service connection of a condition that was logically related to the condition in another claim was raised in a VA Form 9 in Wilson, and elsewhere before the VA in Bailey. I don’t see how the issue in Wilson required anything more than a memorandum decision applying the holding of Bailey to the facts of Wilson.
But let’s dig in, nevertheless. There may be some useful information that we can use to improve our claims before the VA raters and the Board of Veterans Appeals.
I wanted to name this post “It’s raining forms” because the VA loves their forms. They have so many different forms that it’s a wonder that every veteran doesn’t get their own unique claim form. This decision, thankfully, stops the VA from requiring yet another form that serves no purpose other than cutting years off a veteran’s past due award.
One caveat before we get into the weeds: the appeal underlying this decision is a Legacy appeal. While I think it’s reasonable to assume that the holding in this appeal applies to AMA appeals, as well, but these days, it’s important to remember that is just my assumption.
Is the Veteran’s informal claim to service connect peripheral vestibular disorder part of his claim for an increased rating for Bilateral Hearing Loss?
The veteran had been given a non-compensable rating for bilateral hearing loss, and appealed. In his VA Form 9, he wrote that his hearing loss examination did not include testing for PVD (peripheral vestibular disorder), “which [causes him] to have dizziness and occasional staggering.”
The BVA did not address the veteran’s entitlement to PVD.
On appeal, the veteran argued that his reference to the symptoms of PVD in a VA Form 9 constituted a claim, reasonably raised by the record, which the BVA was required to address.
The Secretary argued that even though the VA Form 9 “ ‘…indicated an informal intent to seek benefits for PVD, dizziness, or staggering, either as related to his service-connected hearing loss or tinnitus, or as due to service,’ the Board was under no obligation to discuss any of these issues because the veteran never filed a formal claim, as instructed.”
Conditions that are “logically related” to conditions in a pending claim have been reasonably raised as part of the pending claim.
The Court disagreed with the Secretary, which should not come as much of a surprise.
The Court looked to interpretations of the VA’s informal claims regulation at 38 C.F.R. §3.155(d)(2). The Court recalled its holding in Bailey v. Wilkie, which found that regulation “…imposes a duty on the Agency to consider claims for secondary service connection if they are raised during the course of adjudicating a complete claim concerning a related, primary disability.” Bailey, 33 Vet. App. 188, 201 (2021).
Most important, the Court looked to its analysis in Bailey, in which it wrote that there was “no authority indicating that the 2015 amendments [requiring a formal claim to perfect an informal claim] were intended to alter” the VA’s “[long-standing] practice of identifying and adjudicating issues and claims that logically relate” to the pending claim. Id.
A couple other interesting sidebars about the decision.
The Court breathed a bit of new life into a part of its holding in Clemons v. Shinseki that the Secretary has never really been keen on:
“The scope of [a] veteran’s claim cannot be limited to one specified diagnosis; the claim must be considered to encompass any disability reflected in the veteran’s description of the claim and the symptoms the veteran describes. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)
And the Court was critical of the arguments raised by the Secretary’s counsel:
“Blaming the veteran for the Board’s inattention to the issues the veteran raised also does not square with the standard VA set in adopting the formal claims requirement. VA specified that the final rule did ‘not alter VA’s general practice of identifying and adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA.”’79 Fed. Reg. at 57,672. See VJG, 818 F.3d at 1356 (highlighting the quoted assurance by VA in upholding amendments to relevant regulations).” See Memorandum Decision, page 6.]
It’s always refreshing to see a Veterans Court decision labelling the Secretary’s arguments. In law school, we were taught that the government attorney’s duty was to ensure justice was done. I don’t see that at the VA Office of General Counsel very much; what I see most often is arguing for the sake of argument.
Bottom line, in a legacy appeal, if you raise an issue in a VA Form 9, you have raised at the very least an “informal claim”; for VA Form 9’s filed after the VA’s requirement, in March 2015, that informal claims be formalized with the filing of an actual claim form, if the VA doesn’t tell you to file a formal claim then it is squarely on the BVA to address the informal claim.
And, at a minimum, that requirement directs the BVA to address whether the claim raised in the VA Form 9 is “logically related” to the claim being adjudicated. The Court looked to the VA’s rating regulations, and its holding in Doucette to conclude that “…a hearing loss claimant could describe symptoms such as dizziness and recurrent loss of balance ‘and the Board would be required to explain whether the rating criteria contemplate those functional effects.’ ” Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).
The decision in this case may have been different if the veteran was represented by an attorney. I suspect, from some of the Court’s dicta, that the Court might have required more of the veteran represented by the attorney.
I’m not sure that would be a legitimate approach – to allow the BVA to have separate standards of review for represented veterans and unrepresented veterans – but who wants to be the attorney to test that out?
How should Veterans Advocates use the Wilson decision.
So, if you are a veterans advocate, and an informal claim raises an issue in the course of another claim or appeal, what you can do is determined by where things are in the Legacy proceedings.
- If the appeal has been certified to the BVA, make a thorough argument in a pre-decisional brief that focuses on how the ‘informal’ claim is ‘logically related’ to the formal claim/appeal. Look to any source you can find – VA regulations, diagnostic codes, the M21 Manual other BVA decisions, medical journal articles, medical expert opinions, Dorland’s Medical Dictionary, whatever competent and credible source you can find – that supports a relationship between the formally accepted and informally claimed symptoms or conditions. As a protective measure, you may want to consider filing a supplemental claim under AMA, that will at least preserve the effective date should you lose that argument.
Question – how do you know if your appeal has been certified to the BVA? Option 1, get a copy of your VA claims file. Option 2, call or write the VA and ask if the appeal has been certified to the BVA and, if so, could they please send you a copy of the certification letter.
- If the appeal has not yet been certified (under Legacy) or you still have time to put evidence in before the record closes, make a written request for the VA to tell you what form you should file. Why? Because I don’t know that the VA has given guidance as to whether a VA Form 21-526EZ or VA 20-0995 (Supplemental Claim) form should be filed in this scenario, and I don’t want to tell you the wrong form to use.
And if you come across any written guidance from the VA directing us to use a specific form to formalize an informal claim that is part and parcel of an ongoing claim, please let me know what you found and where the guidance is published.
At the CAVC:
Cause #: #19-3791
CAVC Panel:Judges Pietsch, Greenberg, & Jaquith (link to Judicial Bios on Veterans Court website)
Veteran Representation at CAVC: Javier A. Centonzio
OGC Attorney at CAVC: Abhinav Goel
Date of CAVC Decision: January 26, 2022
Link to Memorandum Decision on CAVC Website
At the BVA:
Vets’ Rep at BVA: Texas Veterans Commission
Board of Veterans Appeals Veterans Law Judge: L. M. Barnard
Attorney for the BVA: J. Jack (Law Clerk)
Date of Board Decision: November 27, 2018