Opinion

Westberry v. West

  • 12 Vet. App. 510
  • 1999 U.S. Vet. App. LEXIS 787
  • 1999 WL 592416
Court
United States Court of Appeals for Veterans Claims
Filed
Aug 9, 1999
Status
Published
Author
Kramer
On the bench
Ivers, Kramer, Nebeker
Cited by
6 cases

holding that whether an informal claim had been filed requires the application of the law to the facts of a case and is reviewed under 38 U.S.C. § 7261 (a)(3)(A)

How later courts described this case

  • holding that whether an informal claim had been filed requires the application of the law to the facts of a case and is reviewed under 38 U.S.C. § 7261 (a)(3)(A)
  • holding that whether an informal claim had been filed required the application of the law to the facts of a case and is reviewed under 38 U.S.C. § 7261(a)(3)(A)
  • noting that the manual "has not been made an issue here”
  • phone call from veteran’s estranged widow informing the VA of the veteran’s death was a request for information, not an informal claim for death pension benefits

Written by the judges who cited it.

The opinion

KRAMER, Judge,

concurring:

I write separately because I believe that we should put to rest any lingering notion that an appellant can file an oral informal claim. Pursuant to 38 C.F.R. § 3.155 (a) (1998):

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the De *515 partment of Veterans Affairs ... may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

Although the language of 38 C.F.R. § 3.155 (a) is broad, it neither explicitly authorizes nor explicitly precludes an oral informal claim. However, its use of the phrase “[u]pon receipt” gives rise to an inference that a writing may be required. That inference becomes a mandate pursuant to 38 C.F.R. § 3.1 (p) (1998), which defines a claim as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” (Emphasis added.) Further, even assuming that a written informal claim does not violate the statutory prescriptions in 38 U.S.C. §§ 5101 (a), 5105(a), and 5110(a), which together generally prohibit the payment of benefits prior to the date of receipt of an application for benefits in the form prescribed by the Secretary, there can be little doubt that awarding benefits based on the date of receipt of an oral informal claim, when only a written document is contemplated by the statute, would be inconsistent with the statutory framework. Consequently, I believe that an oral informal claim is precluded.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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