# Westberry v. West

> United States Court of Appeals for Veterans Claims · August 9, 1999 · 12 Vet. App. 510

URL: https://www.frixlaw.com/law-library/cases/8167597

## Case

- **Full name:** Barbara J. WESTBERRY v. Togo D. WEST, Jr., Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** August 9, 1999
- **Citations:** 12 Vet. App. 510; 1999 U.S. Vet. App. LEXIS 787; 1999 WL 592416
- **Precedential status:** Published
- **Opinion:** Concurrence by Kramer
- **Judges:** Ivers, Kramer, Nebeker
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167597

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167597. Public record. Not legal advice.