Jimmy C. Bonds v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 20-4899

Jimmy C. BONDS, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 25, 2022 Decided October 5, 2022)

Sandra E. Booth, of Columbus, Ohio, for the appellant.

Omar Yousaf, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; and Sarah W. Fusina, Deputy Chief Counsel, all of Washington, D.C., were on the brief,

for the appellee.

Before ALLEN, MEREDITH, and TOTH, Judges.

PER CURIAM. TOTH, Judge, filed a concurring opinion.

PER CURIAM: Navy veteran Jimmy C. Bonds challenges a Board of Veterans’ Appeals

(Board) decision that denied an effective date earlier than August 30, 2016, for compensation for

diabetes and related residuals, special monthly compensation (SMC), and dependents’ educational

assistance (DEA).! He argues that a September 2013 filing alleging negligent care at a VA facility

under 38 U.S.C. § 1151 (1151 claim) should be read to encompass his service-connection claim

for diabetes and residuals so that the effective date for those service-connected conditions matches

the September 2013 claim. The Board disagreed and denied the September 2013 effective date on

the grounds that the relevant form did not identify any benefits sought beyond the 1151 claim.

Specifically, the Board ruled that there was no legal support for the proposition that an "ambiguous

claim may be for a benefit of a different type than what the claimant filed for.” R. at 14. Under this

rationale, the Board noted that "a claim for service connection does not encompass a claim for

38 U.S.C. § 1151 and vice versa." /d.

' The Board also remanded claims under 38 U.S.C. § 1151 for a right below the knee amputation and

depression secondary to the amputation. We lack jurisdiction over remands and so do not address those claims. See

Breeden v. Principi, 17 Vet.App. 475, 478 (2004).

The Secretary defends this ruling on appeal, arguing that an impenetrable barrier separates

1151 claims from service-connection claims brought under 38 U.S.C. $$ 1110 and 1131, such that

the former can never encompass the latter. However, we need not assess this proposition as it

sidesteps the salient issue here: whether, under then-extant regulations, the veteran presented an

informal claim for service connection for diabetes. (VA issued new regulations in March 2015 that

standardized how claims are filed and eliminated informal claims and so this question applies only

to claims filed before issuance of the new regulations. Compare 38 C.F.R. § 3.1(p) (2013) with

38 C.F.R. § 3.155 (2022)).

Properly framed, the question here does not turn on the scope of a claim—that is, whether

Mr. Bonds's claim under section 1151 can be read to incorporate a claim for service connection

for diabetes—but assesses whether the September 2013 filing presents an informal claim for

service connection for diabetes that is distinct from any claim under section 1151.

Ultimately, we cannot answer this question as the Board never made factual findings on

the matter and we decline to do so in the first instance. Instead of determining whether Mr. Bonds

filed an informal service-connection claim, it found that the presence of an 1151 claim precluded

the possibility of a distinct claim under sections 1110 or 1131. This was error. The Board's duty to

identify informal claims focuses on pleadings and is distinct from any assessment of whether the

scope of a claim can be expanded by virtue of evidence developed during the course of a claim

that presents an additional disability. In other words, the Board is not dispensed from its duty to

identify informal claims merely because a veteran raises an 1151 claim; and here, it should have

assessed whether Mr. Bonds also filed an informal claim for service connection. We remand for it

to do so.

I. BACKGROUND

Mr. Bonds began his service in the Navy in 1988 and was honorably discharged in 1995.

Within one year of discharge, he was diagnosed with type 2 diabetes at a non-VA hospital. (This

is relevant because diabetes is among the conditions for which a veteran can be presumed to be

service connected if they are diagnosed within one year of leaving service. See 38 C.F.R.

§§ 3.307(a)(3) (2022) (one year limit), 3.309(a) (list of qualifying conditions).) He began treatment

with VA medical providers in 1999.

Mr. Bonds sought care from VA in 2011 after he stepped on a plug and developed a foot

infection; the infection intensified and, later that year, VA physicians in Dayton, Ohio, conducted

a below-the-knee amputation on his right leg. A treatment provider subsequently referred him for

monitoring for depression.

On September 19, 2013, Mr. Bonds—proceeding without the assistance of counsel—

requested compensation under 38 U.S.C. § 1151 for his amputation and compensation for

depression as secondary to the amputation.” Section 1151 provides relief for disabilities that are

proximately caused by negligent care on VA's part. As part of this claim, he submitted VA's

standard claim form: VA Form 21-526EZ. The relevant section of that form requires veterans to

list the disabilities they seek compensation for.

This is a snapshot of Mr. Bonds's claim form:

L . ! : . =

9. LIST THE DISABILITY(IES) YOU ARE CLAIMING (If applicable, identify whether a disability 1s due fo a sence connected disability, is due to confinement as a

Prisoner of War, 1s due to exposure to Agent Orange, Asbestos, Mustard Gas, lonizing Radiation, or Gulf War Enwronmental Hazards, or !s-related to benefits under

38USC 1151)

EXAMPLES

- Agent 73-8aNang) | L sfo'fight!

ht 1151 claim

depression and all mh conditions due to amputation

ae

i RS Tie

R. at 13427.

Alongside the claim form, Mr. Bonds also submitted a statement in support of his claim.

Excerpted here is the relevant section:

With this form I have enclosed form 21-22 electing the American Legion as the organization representing

my claim and form 21-526ez stating I am claiming that my right leg amputation and mental health

conditions caused by my amputation be treated as if service connected under Section 1151. I am filing an’

1151 claim for these conditions due to the following facts: :

In May of 2011 I sought treatment for a wound on my foot. I had stepped on the prong of a plug and

developed a calius/sore. My VAMC records will then reflect that I had made multiple complaints of my foot

and sought treatment. The fact that I was/am a diabetic, the wound should have been attended to: more

carefully, I developed an infection that was so bad it started to rot my foot. This led to my amputation tn

November of 2011. The VA care providers should have éxercised a reasonable degree of care, knowing I

was diabetic. If they had, then my leg would not have had to be amputated.

My health care was provided through the VAMC in Columbus Ohio and Dayton Ohio. Please review these

records in support of my claim. :

> The appellant's application is date stamped as received by VA on September 26, 2013.

R. at 13432.

The 1151 claim was initially denied but was later remanded and remained pending before

VA when this case was argued. In June 2017, Mr. Bonds filed a formal claim seeking service

connection for diabetes as well as related residuals. VA's regional office (RO) granted service

connection and assigned an effective date of August 30, 2016—the date it received an earlier

communication from Mr. Bonds indicating an intent to file a claim for service-connected diabetes

and residuals. R. at 12. Mr. Bonds appealed the effective-date determination, arguing that his

September 2013 claim for section 1151 benefits should be read to include a service-connection

claim for diabetes. He cited extensive caselaw from this Court and the Federal Circuit addressing

the scope of claims and VA's duty to read pro se filings sympathetically.

The Board denied an effective date earlier than August 30, 2016, for the initial grant of

service connection for diabetes and related residuals, SMC, and DEA. It acknowledged the cases

cited in the veteran's brief but asserted that they "do not support the proposition that the ambiguous

claim may be for a benefit of a different type than what the claimant filed for." R. at 14. It cited

Anderson vy. Principi, 18 Vet.App. 371 (2004), for the proposition that "service connection does

not encompass a claim for 38 U.S.C. § 1151 and vice versa." R. at 14. Under this rationale, a

September 2013 effective date for diabetes and related benefits was not available because no such

claim existed at the time—only the 1151 claim existed, as evidenced by the fact that Mr. Bonds

"identified his claim as one under section 1151 from the first filing” and that he "remained steadfast

in this assertion for nearly four years until the June 2017 claim for direct service connection.” Jd.

This appeal followed.

II. ANALYSIS

Generally, the effective date of an award for benefits will be the date VA receives the claim

or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (establishing that, generally,

"the effective date of an award... shall be fixed in accordance with the facts found, but shall not

be earlier than the date of receipt of application"); 38 C.F.R. § 3.400 (2022).

On appeal, Mr. Bonds argues that the effective date for his diabetes and related benefits

should be in September 2013—the date he filed his 1151 claim for compensation for a right leg

amputation. He contends that the Board improperly limited the scope of his 1151 claim by

confecting "an illusory distinction” between 1151 claims and service-connection claims that has

no basis in law and inappropriately limits the proposition that VA must sympathetically read pro

se filings. Appellant's Br. at 7. He maintains that his case is identical to DeLisio v. Shinseki,

25 Vet.App. 45 (2011), which spells out various instances where a claim for a disability can

encompass a claim for the causal condition of that disability; and, because his diabetes was found

to have caused his amputation, DeLisio establishes that the diabetes claim is encompassed within

his 2013 claim for a right leg amputation.

The Secretary argues that there is, essentially, an impenetrable barrier between 1151 claims

and service-connection claims under 38 U.S.C. §§ 1110 and 1131. The Secretary vigorously

defends the Board's ruling that Anderson precludes the possibility of a claim for service connection

because it established that "[a] claim under section 1151 is not, properly speaking, a claim for

service connection pursuant to section 1151." 18 Vet.App. at 376. Per Anderson, the Secretary

contends, any factual similarity between this case and DeLisio is rendered irrelevant by the

insuperable barrier that separates 1151 claims and service-connection claims, whereby one can

never encompass the other.

VA regulations recognized both formal and informal claims at the time Mr. Bonds filed his

claim in 2013. 38 C.F.R. § 3.1(p) (2013). In March 2015, VA changed its regulation to standardize

how claims are filed and eliminated informal claims, see 38 C.F.R. § 3.155 ("How to file a claim");

thus, the analysis in this case pertains only to claims filed under the pre-March 2015 regulations.

Whether a filing raises an informal claim for benefits is normally a factual inquiry reviewed

under the "clearly erroneous" standard, by which the Court can overturn the finding only if firmly

convinced that the Board made a mistake. Rouse v. McDonough, 34 Vet.App. 43, 48 (2021). There

are three "essential requirements” to any formal or informal claim: (1) an intent to apply for

benefits, (2) an identification of the benefit sought, and (3) a communication in writing. Brokowski

v. Shinseki, 23 Vet.App. 79, 84 (2009). The Court's inquiry in this case focuses on the second

element: the identification of the benefit sought.

Although the Board must interpret a claimant's submissions broadly, it is "not required to

conjure up issues that were not raised by the [claimant]." Brannon v. West, 12 Vet.App. 32, 35

(1998). However, a claimant is not required to identify benefits with technical precision, as it is

VA's duty to evaluate whether "there is potential under the law to compensate an averred disability

based on a sympathetic reading of the material in a pro se submission." Ingram v. Nicholson,

21 Vet.App. 232, 256-57 (2007). For this reason, even identifying a condition at a high level of

generality can suffice in some instances. See Veterans Justice Group, LLC v. Secretary of Veterans

Affairs, 818 F.3d 1336, 1354 (Fed. Cir. 2016).

For example, in Roberson v. Principi, the Federal Circuit determined that, in addition to an

expressly raised claim for a psychiatric condition, the veteran raised a TDIU claim by submitting

evidence of unemployability and then asking for the highest rating possible. 251 F.3d 1378, 1384

(Fed. Cir. 2001). Several years later, Szemraj v. Principi confirmed that "Roberson is not limited

to its particular facts” but "requires, with respect to all pro se pleadings, that the VA give a

sympathetic reading to the veteran's filings by ‘determin[ing] all potential claims raised by the

evidence, applying all relevant laws and regulations.” 357 F.3d 1370, 1373 (Fed. Cir. 2004)

(quoting Roberson, 251 F.3d at 1384). Taken together, Roberson and Szemraj show that the

assessment of whether a pro se pleading presents an informal claim is inherently factual in nature

and can be distilled down to whether the filing identifies a benefit clearly enough to communicate

an intent to apply for it. Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005).

In a pair of recent decisions, Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019), and Sellers v.

Wilkie, 965 F.3d 1328 (Fed. Cir. 2020), the Federal Circuit set markers for determining whether a

pro se filing sufficiently identifies the benefit sought. Shea recounted a series of previous decisions

supporting the proposition that, although a pro se claimant must identify the benefit sought, "the

identification need not be explicit in the claim-stating documents, but can be found indirectly

through examination of evidence to which those documents themselves point when

sympathetically read." 926 F.3d at 1368. Thus, in assessing the specific disabilities, conditions,

and symptoms identified by claim-stating documents, "VA must look beyond the four corners of

those documents when the documents themselves point elsewhere"—there, to medical records. Jd.

at 1369. Ultimately, the Federal Circuit held that requiring a claim-stating document to contain

specific words referring to a psychiatric disability or mental health symptoms constituted "too

restrictive an interpretation” of the phrase "identify the benefit sought.” Jd. at 1370 (quoting

38 C.F.R. § 3.155(a) (2007)).

Eschewing strict formalism, the Federal Circuit applied a "flexible standard" in which a

claimant can identify a benefit sought by using "language that points to records mentioning such

a condition in a way that, sympathetically read, is properly understood as seeking benefits for such

a condition.” /d. Using this flexible standard, the Federal Circuit held that, "Where a claimant's

filings refer to specific medical records, and those records contain a reasonably ascertainable

diagnosis of a disability, the claimant has raised an informal claim for that disability." /d.

But Shea's flexible standard is not boundless, as evidenced by the Federal Circuit's follow-

on ruling in Sellers. That case addressed whether a pro se claimant who, in the claim-stating

document, expressly sought benefits for leg, back, ear, and finger conditions also sufficiently

identified benefits for a depressive disorder where he did not expressly mention the condition but

merely requested service connection "for disabilities occurring during active duty service.” Sellers,

965 F.3d at 1330. The veteran in Sellers argued that the language in a pro se filing should be read

sympathetically to require VA to "grant all possible benefits” on the grounds that VA possessed

his service medical treatment records, which showed that he had received treatment for psychiatric

conditions. /d. at 1332. Sellers rejected the proposition that a generalized statement to receive "all

possible benefits" coupled with VA's possession of a claimant's medical records was sufficient to

identify the benefit sought as every disability, condition, or symptom mentioned in a pro se

claimant's medical records. Jd. at 1338. Recognizing that the Secretary's duty to assist "1s not

untethered," the Federal Circuit held that the filing failed to identify a benefit for depression even

"at a high level of generality.” Jd.

Shea and Sellers serve as guideposts when evaluating whether a pro se claimant has

adequately identified the benefit sought. Shea establishes that claims must be read alongside

referenced medical records so that a pro se claim that falls short of expressly identifying a benefit

can still identify the benefit sought when it signals an intent to seek benefits for a condition readily

identifiable in the cited medical records. In contrast, Sellers requires a measure of specificity

between the claim-stating document and the condition identified in the medical records such that

generalized statements of intent to receive "all possible benefits” fall short of identifying the

benefit sought as including conditions noted in a claimant's medical records.

Following this precedent, we begin by examining the four corners of a potential claim-

stating document. Shea, 926 F.3d at 1368. The nature of a claim-stating document will depend on

when it was filed. At the time the appellant filed his September 2013 application, a claim could be

either "a formal or informal communication.” 38 C.F.R. § 3.1(p) (2013). As noted, per extant

regulations in 2013, a communication can serve as an informal claim if it (1) is in writing;

(2) indicates an intent to apply for veterans benefits; and (3) identifies the particular benefits

sought. 38 C.F.R. § 3.155 (2013).

We read VA's contention that an 1151 claim can never include a claim for service

connection as relating primarily to the scope of the claim. Reasoning that the nature of an 1151

claim and the type of development required to adjudicate it renders it fundamentally distinct from

a service-connection claim, VA contends that the one could never envelop the other. Whether true

or not, this proposition is not of immediate concern as it does not touch upon the Board's duty to

assess every pro se filing for informal claims. Ultimately, it is incumbent on VA to identify all

claims raised by the veteran's pro se filings, consistent with Shea and Sellers, before deciding the

scope of each individually raised claim—that is, VA must identify the largest limbs of the tree

before examining the smaller offshoots of each branch.

Here, the Board limited its analysis to noting that 1151 claims are distinct from service-

connection claims without considering whether Mr. Bonds's 2013 filing raised an informal claim

for service connection for diabetes in addition to his expressly raised 1151 claim. Although the

Board acknowledged that the appellant "did identify as a diabetic" in that 2013 filing, R. at 12, the

Board did not discuss whether that reference alone or in conjunction with the medical records

identified in that document could constitute an informal claim. Importantly, the appellant asserts,

and the record appears to reflect, that those medical records contain a diabetes diagnosis within

one year of service, which would be relevant to potential eligibility for presumptive service

connection. See R. at 13432 (explaining that he is diabetic and requesting that VA review his

medical records from VA medical centers in Ohio), 13454-55 (Dayton VA medical center record

appearing to reflect a history of diabetes since 1996); see also 38 C.F.R. § 3.307(a)(3) (2013). In

short, the Board limited its analysis to the scope of the veteran's 1151 claim rather than

sympathetically reading the entire 2013 claim-stating document and concurrent record evidence.

Because this is a factual inquiry, we remand for the Board to decide, in the first instance, whether

Mr. Bonds's September 2013 filing raised an informal service-connection claim for diabetes. See

Byron v. Shinseki, 670 F.3d 1202, 1206 (Fed. Cir. 2012) ("When there are facts that remain to be

found in the first instance, a remand is the proper course.").

To be clear, our holding is a narrow one. We take no position on the Board's assertion that

Anderson and prior caselaw stand for the proposition that an 1151 claim cannot encompass an

1110 claim. Indeed, Anderson does not factor in determining whether Mr. Bonds filed a separate,

informal claim for service connection for diabetes. Nor do we address whether an 1151 claim can

encompass a service-connection claim based on the causal-chain rule in DeLisio. We hold only

that VA must determine the total number and type of claims raised in a claim-stating document

and referenced evidence before addressing the scope of each individually raised claim. Moreover,

even if a claim-stating document only explicitly identifies one claim, VA must search that

document liberally for other less explicitly stated claims. See Roberson, 251 F.3d at 1384. Because

the Court is remanding this matter to the Board for readjudication, Mr. Bonds can present his

remaining arguments to the Board. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam

order). He may submit additional evidence and argument and has 90 days to do so from the date

of VA's postremand notice. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per

curiam order); see also Clark v. O'Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider

any such additional evidence or argument submitted. Kay v. Principi, 16 Vet.App. 529, 534 (2002).

The Board must also proceed expeditiously. 38 U.S.C. §§ 5109B, 7112.

Finally, Mr. Bonds notes that the Board failed to address his request for an earlier effective

date for service connection for depression, which was also on appeal. Neither side devoted much

energy to this issue; in fact, the Secretary never addressed it, still less contested it. The record is

clear, however, that the December 2019 Supplemental Statement of the Case (SSOC) addresses

the effective date for service connection for depression and that Mr. Bonds expressly referenced it

in his form appealing his case to the Board. R. at 1153 (SSOC), 62 (VA Form 9); see R. at 1244-

45 (Notice of Disagreement). The Board thus erred in failing to address this issue. See Harper v.

Wilkie, 30 Vet.App. 356, 359 (2018) (reviewing de novo whether the Board had jurisdiction); see

also 38 U.S.C. § 7105 (2012); Buckley v. West, 12 Vet.App. 76, 82-83 (1998). On remand, the

Board must address whether an earlier effective date for service connection for depression is

warranted.

il. CONCLUSION

For the foregoing reasons, the Court VACATES and REMANDS the portion of the June 9,

2020, Board decision denying an effective date earlier than August 30, 2016, for service

connection for diabetes, service connection for related residuals, an award of SMC, and an award

of DEA. The Court REMANDS for adjudication in the first instance the matter of an earlier

effective date for service connection for depression.

TOTH, Judge, concurring: Although our caselaw has in practice heeded the difference

between the scope of a pleading and the scope of a claim, it has never expressly recognized the

distinction and I believe it would be helpful to do so. I join the panel opinion in full and write

separately only to highlight a somewhat obvious point—that the scope of a claim includes the

pleadings but also extends to cover matters identified through evidence obtained over the

development of the claim. As relevant here, this explains why we need not assess whether the

scope of an 1151 claim extends to include a claim for service connection.

As I read them, cases such as Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001),

Szemrai v. Principi, 357 F.3d 1373 (Fed. Cir. 2003), Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir.

2019), and Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) set out how to assess the scope of a

pleading to determine whether it includes an informal claim for benefits. This inquiry centers on

the language of the pleading and extends to various medical records to which the pleadings refer.

Shea, 926 F.3d at 1369. Significantly, matters obtained during discovery generally do not factor

in assessing the scope of a pleading.

By contrast, cases such as Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), Robinson v.

Peake, 21 Vet.App. 545 (2008), Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009), and DeLisio v.

Shinseki, 25 Vet.App. 45 (2011), are useful for assessing the scope of a claim once the duty to

assist has attached and evidentiary development has begun. In these cases, the scope of the claim

includes not only issues raised in the pleadings but also the entire evidentiary record as the case

develops over time. DeLisio, 25 Vet.App. at 53 ("Overall, the scope of the claim will be based on

a sympathetic assessment of 'the claimant's description of the claim; the symptoms the claimant

describes; and the information the claimant submits or that the Secretary obtains in support of the

claim,’ i.e. the information gathered upon investigation.") (quoting Clemons, 23 Vet.App. at 5).

Evidentiary development, then, is the crucial difference between assessing the scope of a

claim versus the scope of a pleading. As Sellers observed, "the Secretary's duty to assist begins

upon receipt” of a "legally sufficient” claim (1.e., a formal claim or an informal claim if filed before

the March 2015 change in regulation) that identifies the benefit sought. 965 F.3d at 1338 (citing

38 C.F.R. § 3.159). VA regulations also recognize that evidentiary development can change the

scope of a claim: "Once VA receives a complete claim, VA will adjudicate as part of the claim

entitlement to any ancillary benefits that arise as a result of the adjudication decision." 38 C.F.R.

§ 3.155(d)(2). And, relatedly, the Board must address all issues reasonably raised by the record

10

during the course of the claim and "explore all legal theories, including those unknown to the

veteran, by which a veteran might be awarded service connection for such disability." Robinson,

21 Vet.App. at 551.

Assessing the scope of a pleading is thus an antecedent consideration to evaluating whether

the Secretary complied with the duty to assist in developing a claim or whether the Board failed to

address an issue reasonably raised by the evidence of record. DeLisio tracks this sequence neatly:

its central holding is that a pending claim for a specific disability can encompass a claim for the

causal condition of that disability where the evidence developed during the case shows a

connection to service for the causal disability. 25 Vet.App. at 53. In these cases, the fact that the

claimant failed to plead the causal condition does not defeat the possibility of compensation for it

as the scope of the claim expands to "reasonably encompass” the causal disability such that "no

additional filing is necessary to initiate a claim for benefits for the causal disease or disability.” Jd.

at 54.

Of course, had the claimant filed an informal claim for the causal benefit, it would stand

alone as an independent claim and there would be no need to examine whether it is reasonably

encompassed by another claim. This point is fairly obvious, but it explains why we need not

address whether an 1151 claim can reasonably encompass a claim for service connection. The

relevant issue is whether Mr. Bonds's 2013 statement in support of his claim amounts to an

informal claim for benefits for diabetes.

11