Akers v. SHINSEKI
2012 U.S. App. LEXIS 6084
| Fed. Cir. | 2012Background
- Akers, widow of James D. Akers, whose death occurred on February 12, 2002, followed a service-connected 100% PTSD rating.
- Akers sought dependency and indemnity compensation in February 2002; the claim was denied in July 2002.
- Akers filed a Notice of Disagreement in February 2003; VA mailed a Statement of the Case May 9, 2003, and she could appeal within 60 days.
- On September 16, 2003, Akers timely but unsuccessfully appealed via VA Form 9, and on October 3, 2003 VA informed her the appeal was untimely and final.
- In July 2004, Akers submitted a new claim to reopen; VA initially denied reopening for lack of new and material evidence, but Akers eventually obtained reopening and an effective date of July 2004.
- The Board held Akers’ Form 9 was a substantive appeal and that she did not reopen before July 2004; the Veterans Court affirmed, later addressing whether the September 2003 communication could be an informal claim to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court’s interpretation of § 5108 and § 3.156(a) was reviewable | Akers: court may review interpretation of these provisions. | DVA: scope of review limited to questions of law as applied to facts; interpretation not reviewable. | This court has authority to review the Veterans Court's interpretation of § 5108 and § 3.156. |
| Whether a formal Form 9 can constitute an informal claim to reopen under § 3.155(a)/(c) | Akers asserts Form 9 could be informal reopening if it showed intent to reopen. | DVA argues no, because new and material evidence is required to reopen and Form 9 alone lacks such intent. | The Veterans Court erred to the extent it required new and material evidence for an informal claim, but the error was harmless; Form 9 lacked evidence of intent to reopen. |
| Whether an informal claim to reopen can establish an earlier effective date | Akers contends the September 2003 submission could trigger an earlier date. | DVA maintains the date is governed by § 3.156(a) and related timing rules; no early date if no proper informal claim. | Informal claim can establish an effective date even without new and material evidence; however, in this case, the Form 9 failed to indicate reopening intent, so no earlier date from that submission. |
Key Cases Cited
- Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009) (review of Veterans Court legal determinations de novo)
- Ellington v. Peake, 541 F.3d 1364 (Fed.Cir.2008) (informal claim content and contents considered)
- Rodriguez v. West, 189 F.3d 1351 (Fed.Cir.1999) (informal claim requirements (writing, intent, benefits sought))
- Jackson v. Nicholson, 449 F.3d 1204 (Fed.Cir.2006) (3.156(b) timing for new and material evidence)
- Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir.2004) (harmless error review in veterans cases)
- Comer v. Peake, 552 F.3d 1362 (Fed.Cir.2009) (earliest effective date generally the date of the reopen application)