James B. Criswell v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-845

JAMES B. CRISWELL, APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 4, 2006 )

Sean A. Ravin, of Washington, D.C., for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; William

L. Puchnick, Acting Deputy Assistant General Counsel; and Rudrendu Sinhamahapatra, all of

Washington, D.C., for the appellee.

Before KASOLD, HAGEL, and SCHOELEN, Judges.

HAGEL, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring

opinion.

HAGEL, Judge: James B. Criswell appeals through counsel a February 12, 2003, Board of

Veterans' Appeals (Board) decision in which the Board denied him an effective date prior to August

21, 1997, for the assignment of a 50% combined disability rating for his service-connected cold-

injury residuals of the hands and feet. For the reasons provided in this opinion, the Court will affirm

the February 2003 decision on appeal.

I. FACTS

Mr. Criswell served on active duty in the U.S. Army from March 1944 to August 1945.

Record (R.) at 17. On August 27, 1945, he submitted to a VA regional office an application for

disability compensation for trenchfoot and exposure. Supplemental (Supp.) R. 1-2. Specifically,

in the box in which he was asked to list the nature of the disease or injury for which the claim was

being made, he stated as follows: "Trenchfoot - 12-23-44 - exposure - swell - p[er]spire - aching

discoloration." Id. at 1. He was granted a temporary disability rating of 50% for "trenchfoot,

bilateral." R. at 51. The regional office noted that the condition was "rated as frozen feet." Id.

The report from a February 1947 VA examination reflects cold-weather residuals to Mr.

Criswell's upper extremities. R. at 53. In March 1947, the regional office terminated the temporary

rating and granted service connection for bilateral trenchfoot; the regional office assigned a 30%

disability rating, effective February 25, 1947. R. at 64.

In August 1997, Mr. Criswell requested service connection "for my hand due to frostbite"

and an increased disability rating for his service-connected residuals of frozen feet. R. at 144. In

July 1999, he was granted service connection for cold-weather residuals for both hands and assigned

a combined 30% disability rating for both hands effective from August 1997 to August 1998; he was

assigned a separate 20% disability rating for each hand effective August 13, 1998. R. at 259-60. He

appealed to the Board and sought an earlier effective date for his combined disability rating for his

service-connected conditions.

In the decision on appeal, the Board observed that "when the veteran filed his initial claim

of entitlement to service connection for bilateral trenchfoot, which VA received in August 1945, he

did not include a claim requesting a determination or evidencing a belief in entitlement to benefits

for cold injury residuals of the hands." R. at 12. The Board ultimately concluded that Mr. Criswell

had not filed a claim "in relation to his cold[-]injury residuals of the hands until his application in

August 1997." Id. at 13.

On appeal, referring to March 1947 medical records, Mr. Criswell argues, among other

things, that he had reasonably raised a claim for cold-weather residuals for both hands in 1947, and

that that claim remained pending and unadjudicated until July 1999. Appellant's Brief (Br.) at 11-17.

On that basis, he asserts entitlement to an effective date in March 1947 for his service-connected

cold-weather residuals for both hands. Id. at 16.

In response, the Secretary argues that the 1947 medical records referred to by Mr. Criswell

do not reflect an intent to seek VA benefits for an injury to his hands. Secretary's Br. at 7-10. The

Secretary urges the Court to affirm the Board's decision.

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The Court subsequently granted Mr. Criswell's motion for supplemental briefing, wherein

he argued that his August 1945 application "raised the issue of entitlement to service connection for

all disabilities related to cold exposure." Mr. Criswell's supplemental brief largely mirrors this

argument. See Appellant's Supp. (Br.) at 3-4.

II. ANALYSIS

The law requires the Secretary to "give a sympathetic reading to the veteran's filings by

'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'"

Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d

1378, 1384 (Fed. Cir. 2001)). Nevertheless, it is well settled that an intent to apply for benefits is

an essential element of any claim, whether formal or informal, and, further, the intent must be

communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006)

(holding that the plain language of the regulations require a claimant to have an intent to file a claim

for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an

informal claim for benefits must be in writing); Brannon v. West, 12 Vet.App. 32, 35 (1998); 38

C.F.R. § 3.27 (1946) (stating that before VA can adjudicate a claim for benefits, "the claimant must

submit a written document identifying the benefit and expressing some intent to seek it"); 38 C.F.R.

§ 3.1 (p) (2005) (defining "claim" as "a formal or informal communication in writing requesting a

determination of entitlement or evidencing a belief in entitlement, to a benefit"). It follows logically

that where there can be found no intent to apply for VA benefits, a claim for entitlement to such

benefits has not been reasonably raised.

The mere existence of medical records generally cannot be construed as an informal claim;

rather, there must be some intent by the claimant to apply for a benefit. See Brannon, 12 Vet.App.

at 35 ("The mere presence of the medical evidence does not establish an intent on the part of the

[appellant] to seek secondary service connection for the psychiatric condition . . . . While the Board

must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that

were not raised by the appellant."); 38 C.F.R. § 3.155(a) (2006) ("Any communication or action,

indicating an intent to apply for one or more benefits under the laws administered by [the Secretary]

. . . "may be considered an informal claim." (emphasis added)).

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Although there are two recognized exceptions to this general rule, those exceptions are

applicable only when an underlying claim has been awarded and the medical records demonstrate

that the veteran's disability has increased, or when an underlying claim has been denied and the

medical records evidence new and material evidence to reopen the claim. See 38 C.F.R. § 3.157(b)

(2005); see also Leonard v. Principi, 17 Vet.App. 447, 451 (2004); Lalonde v. West, 12 Vet.App.

377, 381 (1999). Neither of those exceptions applies in this case.

The Board found that, although Mr. Criswell's 1947 medical records reflect complaints

relating to his hands, they do not demonstrate "that [he] was seeking a benefit in relation to his

hands." R. at 13. That finding is not clearly erroneous. See Butts v. Brown, 5 Vet.App. 532, 535

(1993) (en banc) (questions of fact are reviewed under the "clearly erroneous" standard set forth in

38 U.S.C. § 7261(a)(4)). Mr. Criswell points to nothing in his 1947 medical records that, either

alone or combined with his 1945 application, indicates he had an intent to apply for anything other

than disability compensation for his feet. Absent such intent there can be no informal claim, and the

Board's ultimate conclusion that a claim for service connection for cold-weather residuals for both

hands was not filed in this case prior to August 21, 1997, is not "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A); see Westberry v.

West, 12 Vet.App. 510, 513 (1999) (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)).

III. CONCLUSION

Upon consideration of the foregoing, the February 2003 decision on appeal is AFFIRMED.

KASOLD, Judge, concurring: Mr. Criswell additionally argues that his August 1945

application, in conjunction with his claims file, supporting documents, and testimony, constitutes

a claim for service connection for cold-weather residuals, which the 1947 VA regional office (RO)

failed to process, leaving it unadjudicated until the July 1999 grant. See App. Supp. Br. at 3-4.

Although this argument is not addressed in the Court's opinion, I note that it is properly brought in

a request for revision on the basis of clear and unmistakable error (CUE) and, furthermore, it should

have been raised below and not for the first time on appeal. See Deshotel v. Nicholson, 457 F.3d

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1258, 1261-62 (Fed. Cir. 2006) (argument that RO failed to address all claims presented is properly

brought as request for revision on the basis of CUE); Andrews v. Nicholson, 421 F.3d 1278, 1281

(Fed. Cir. 2005) (holding that the RO's failure to address an implied claim "is properly challenged

through a CUE motion"); Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc) (holding that

a motion for revision on the basis of CUE in final RO decision must be presented to and adjudicated

by the RO in order for the Board and the Court to review the matter on the merits); cf. Andre v.

Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (holding that this Court had no jurisdiction to review

appellant's challenge to 1973 RO decision on CUE grounds that were "entirely separate and distinct

claims that the Board's decision [on appeal] had not addressed").

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