Case Information
*1 Before MOORMAN, LANCE, and SCHOELEN, Judges .
LANCE, Judge
: The appellant, veteran Robert J. Ingram, appeals through counsel a
December 12, 2003, decision of the Board of Veterans' Appeals (Board) that denied entitlement to
an effective date earlier than April 15, 1992, for the grant of compensation benefits under 38 U.S.C.
§ 1151 for residuals of a pneumonectomy. Record (R.) at 1-10. The parties each filed briefs, and
the appellant filed a reply brief. Subsequently, the Court sua sponte ordered the parties to file
supplemental briefs addressing what impact, if any, the holding of the United States Court of
Appeals for the Federal Circuit (Federal Circuit) in
Andrews v. Nicholson
,
I. FACTS
The appellant served on active duty in the U.S. Marine Corps from September 1964 to September 1968. R. at 14. In April 1985, he underwent a right bronchoscopy and right pneumonectomy at a VA medical center in Salt Lake City, Utah. R. at 16-21. On May 8, 1986, the Los Angeles, California, VA regional office (RO) received the appellant's initial formal application for VA benefits. R. at 23-26. The appellant submitted his claim on VA Form 21-526, Veteran's Application for Compensation or Pension. R. at 23-26. Under the section entitled "Nature and History of Disabilities" and in response to item 24, entitled "Nature of sickness, disease or injuries for which this claim is made and date each began," the appellant wrote: "Feb.–1985–Right lung was removed, Salt Lake City, Utah, VA Hospital." R. at 24. He also provided responses to items 29A through 32E, under the section entitled "if you claim to be totally disabled," as well as responses to items 33A through 33E, and items 34A through 39B, which contained the instruction that these items should be completed only if the applicant is applying for "non-service-connected pension." R. at 25- 26.
On August 12, 1986, the RO received the appellant's statement in support of claim wherein he stated:
The removal of a vital organ (right lung) has greatly decreased my capacity for air–lung capacity–by fifty percent. Also[,] I am not capable under this condition to continue my normal life style.
I attend[ed] four years of carpenter apprenticeship course at Orange Coast College in Coast Mesa, CA, 1972-1975, to obtain a skillful trade, but now under these adverse medical condition[s], I am unable to continue in my skillful trade.
R. at 34. On August 14, 1986, the RO denied a claim for non-service-connected pension benefits because he was not considered permanently unemployable. R. at 28. The appellant did not appeal that decision.
On April 15, 1992, the appellant filed a second VA Form 21-526, Veteran's Application for Compensation or Pension. R. at 50-53. Under the section entitled "Nature of sickness, disease or injuries for which this claim is made and date each began,” the appellant wrote: "Right Pneumonectomy 1985[;] Esophageal fistual 1986[;] Gastrostomy Tube 1986." R. at 51. In June 1992, the appellant submitted correspondence to the RO asserting, inter alia, that as a result of the *3 1985 surgery and VA's negligence, he developed an esophageal leak. R. at 57. In June 1995, the RO denied his claim for benefits under 38 U.S.C. § 1151 for disability caused by VA treatment. R. at 352-56. However, on appeal in June 1999, the Board awarded compensation benefits under 38 U.S.C. § 1151 for residuals of a pneumonectomy based on an additional disability resulting from treatment in a VA facility. R. at 427-37. On January 20, 2000, the RO awarded a 60% disability rating, effective from October 7, 1996. R. at 456-59. The appellant filed a Notice of Disagreement (NOD) in May 2000, and the RO issued a Statement of the Case (SOC) in February 2002 assigning an earlier effective date of April 15, 1992. R. at 461, 470-77. The veteran perfected his appeal to the Board. R. at 479.
In the decision on appeal, the Board denied an effective date earlier than April 15, 1992. R. at 1- 10. In denying the appellant's request for an earlier effective date, the Board determined, inter alia, that neither his May 1986 application for benefits nor his August 1986 statement in support of claim could have been construed as a claim for compensation benefits under 38 U.S.C. § 1151, and therefore, an effective date back to 1986 was not warranted. R. at 8-9. In reaching this conclusion, the Board stated: "There is nothing in the four corners of [the May 1986 application] that showed an intent that the veteran was claiming compensation benefits under the provisions of 38 U.S.C.[] § 1151. Specifically, there was no allegation of negligence or lack of proper skill, nor did the veteran make some other allegation of the surgery having been done improperly, as to the pneumonectomy that was done at that time." R. at 8. The Board further concluded that there was nothing in the appellant's August 1986 assertion that the surgery had reduced his lung capacity by 50 % "when read alone or with the VA Form 21-526, [that] would indicate an intent to file a claim for compensation benefits under the provisions of 38 U.S.C. § 1151. Again, the veteran was not claiming that the surgery was done improperly or that VA had committed negligence or showed lack of proper skill in performing the pneumonectomy." R. at 9. Based on this analysis, the Board concluded that the preponderance of the evidence was against finding that the veteran had filed a claim under section 1151 in 1986. R. at 9.
II. THE PARTIES' ARGUMENTS
On appeal, the appellant asserts that the Board erred in 2003 when it determined that his May
1986 and August 1986 filings did not constitute informal claims for compensation benefits under
38 U.S.C. § 1151, which would have entitled him to the assignment of an earlier effective date.
Appellant's Brief (Br.) at 3-9;
see Norris v. West
,
On October 4, 2005, the Court sua sponte ordered the parties to file supplemental briefs
addressing what impact, if any, the Federal Circuit's holding in
Andrews
has on this case.
Specifically, the Court referred to
Andrews
' conclusion that "when VA violates
Roberson
[
v.
Principi
,
At oral argument, the appellant maintained his prior position. However, without acknowledging or withdrawing his supplemental brief, the Secretary argued that this case is controlled by and that the appellant's theory cannot be considered because it can be properly raised only through a motion asserting CUE in the 1986 RO decision, and no argument based on CUE is before the Court. Thereafter, the appellant, pursuant to Rule 30(b) of this Court's Rules of Practice and Procedure, filed notices of supplemental authorities.
III. ANALYSIS
A. Issue Presented The question presented to the Court is not whether the Secretary has a duty to sympathetically read a pro se veteran's filings to determine whether a claim has been raised. It is beyond question that the Secretary has such a duty and that it applies not just to total disability based on individual unemployability (TDIU) ratings, but also to any claim for benefits. See Szemraj v. Principi , 357 F.3d 1370 (Fed. Cir. 2004). The question presented to this Court is the proper procedural time and mechanism to assert an alleged failure of the Secretary to perform this duty. We begin with the proposition that as a Court we are reviewing specific decisions below that have been appealed to us. See 38 U.S.C. § 7252(a) (granting the Court jurisdiction "to review decisions of the Board"). Thus, in order for this Court to have jurisdiction to review an asserted error related to the failure to sympathetically read a claimant's filings, the claimant on appeal here must be asserting that the error occurred in the decision on appeal to the Court or that the error occurred in a final decision presented in the context of a CUE motion.
In the context of this case, we must determine whether the arguments raised on appeal are
an improper attempt to use an appeal of the December 2003 Board decision [hereinafter "effective-
date decision"] as a collateral attack on the 1986 RO decision.
Cook v. Principi
,
B. Previously Established Law
1. Effective-Date Decisions Section 5110(a) of title 38, U.S. Code, governs the assignment of an effective date for an award of benefits:
[T]he effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(a). The implementing regulation similarly states that the effective date shall be the date of receipt of claim or date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. See 38 C.F.R. § 3.400 (2005).
A Board determination of the proper effective date for an award of VA benefits is a finding
of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4).
See Hanson v. Brown
,
The Board is required to consider, and discuss in its decision, all "potentially applicable"
provisions of law and regulation.
Schafrath v. Derwinski
,
2. Pending Unadjudicated Claims
The Secretary defines a "pending claim" as "[a]n application, formal or informal, which has
not been finally adjudicated." 38 C.F.R. § 3.160(c) (2005). This definition predates the creation of
this Court.
See
38 C.F.R. § 3.160(c) (1988) (same as current version). Consistent with this
regulation, in several instances, this Court has held that a claim remains pending–even for years–if
the Secretary fails to act on a claim before him. ,
e.g.
,
Norris
,
In
Cook
, the Federal Circuit observed that this Court has tolled the period of time for a
claimant to act after an RO decision, leaving the case in a nonfinal status when the Secretary has
failed (1) to notify a claimant of the denial of a claim,
see Hauck v. Brown
,
In this line of cases, we have also held that a pending claim can be addressed when a subsequent claim for the same disability is explicitly adjudicated. In Myers v. Principi , 16 Vet.App. 228, 229 (2002), the appellant's claim for service connection for a back condition was denied in April 1958. Within one year of the mailing of notice of that decision, the appellant submitted a letter to the RO that the Secretary failed to recognize was an NOD as to that decision. Id. The RO subsequently denied three requests to "reopen" the 1958 denial and the appellant did not attempt to appeal them. Id. Finally, in 1994 the RO rejected another attempt to "reopen" the claim and that decision was appealed to the Board. Id. at 230. After a Board remand, the appellant was granted benefits and he appealed the effective date assigned. Id. On review of the effective-date decision, this Court held that the original 1958 RO decision never became final because the NOD had not been processed, notwithstanding the intermediate denials of the three claims to "reopen." Id. at 235. As a result, the Board's 1997 decision was a continuation of the appeal that began with the 1959 NOD and "the veteran's original service-connection claim was part of the current claim stream." Id. at 236. The Court remanded the matter to the Board to assign an appropriate effective date based on his original claim. Id. Hence, under Myers , if a claim is left pending, it can be addressed when a subsequent "claim" is processed.
3. CUE Motions
A claim of CUE is a collateral attack on a final decision by an RO or the Board.
Disabled
Am. Veterans v. Gober
,
The claimant must provide some degree of specificity as to what the alleged error is and,
unless it is the kind of error that, if true, would be CUE on its face, "persuasive reasons must be
given as to why the result would have been manifestly different but for the alleged error."
Fugo v.
*9
Derwinski
,
C. Theories of the Case
1. Appellant's Theory: The effective-date decision incorrectly identified the claim that was granted.
The essence of the appellant's theory is that the Board decision presently on appeal to the Court erred during the assignment of his effective date when the Secretary incorrectly identified which of his submissions was the claim that led to the award of benefits. He maintains that the April 1992 document that the Secretary identifies as the relevant claim under section 5110 was not a new claim but merely correspondence pertaining to the pending and unadjudicated May 1986 claim. This theory draws support from 38 C.F.R. § 3.160(c), Myers , and the numerous decisions that hold when an appellant submits a claim or takes an action on a claim that puts the ball into the Secretary's court, it remains there–possibly for years–until the Secretary takes appropriate action to return the onus to the claimant to act within the time periods specified by statute and regulation. Tablazon , Hauck , Kuo , and Ashley , all supra .
2. Secretary's Theory: The 1986 RO decision sub silentio denied the appellant's section 1151 claim .
The essence of the Secretary's theory is that even if the May 1986 application raised a claim
under section 1151, the August 14, 1986, RO decision that denied non-service-connected pension
*10
benefits also denied the section 1151 claim sub silentio. Accordingly, there was no claim pending
prior to 1992 and the proper procedure for raising the issue is for the appellant to file a motion
asserting CUE in the 1986 RO decision. As no such motion has been filed or decided by the Board,
the Secretary argues that this Court lacks jurisdiction to consider the appellant's theory of error as
part of a direct review of the decision that assigned an effective date to the appellant's 1992 claim.
The Secretary draws support for this theory from the Federal Circuit's statement in : "when
the VA violates
Roberson
by failing to construe the veteran' s pleadings to raise a claim, such claim
is not considered unadjudicated but the error is instead properly corrected through a CUE motion."
3. The Conflict Between the Theories
The two theories outlined above cannot coexist because they are based on inconsistent factual premises. The first theory relies on the proposition that there was no decision on the alleged 1986 section 1151 claim while the second theory relies on the 1986 RO decision as a final decision on a section 1151 claim, which decision must be challenged for CUE. In other words, either the appellant in this case is trying to bypass the congressionally-authorized procedures for collaterally attacking the final 1986 RO decision or the Secretary is incorrect to assert that the appellant must attempt to collaterally attack a decision that is irrelevant to the alleged section 1151 claim that was pending under § 3.160(c) until 1992 and is now on direct appeal.
Accordingly, the question presented is: Assuming a claim has been reasonably raised by a claimant, is that claim denied sub silentio by an RO decision that should have adjudicated it, or does that claim remain pending under § 3.160(c) and Myers until it is explicitly adjudicated?
D. Resolving the Conflict
For the reasons listed below, we conclude that a reasonably raised claim remains pending until there is an explicit adjudication of the claim or an explicit adjudication of a subsequent "claim" for the same disability. Myers and 38 C.F.R. § 3.160(c), both supra . If there is no explicit final *11 denial of the original claim prior to the granting of the subsequent claim, then, as part of his or her appeal of the effective-date decision, an appellant can raise the fact that he or she filed the original claim for the same disability at an earlier date than the claim which was subsequently granted.
We begin by looking at the crux of the problem: the apparent inconsistency between Norris and . At oral argument, the Secretary asserted that Andrews had overruled Norris . Based on the analysis below, the Court disagrees. While those decisions discuss related concepts, they are factually distinguishable from each other and from the other relevant decisions in this area.
Norris
is the first of the decisions at issue. In
Norris
, the appellant filed a claim for an
anxiety disorder.
The Court determined that where, as in Norris , the claimant has already been granted service connection for a disability and has a schedular rating that meets the minimum criteria of 38 C.F.R. § 4.16(a) (i.e., he had at least a 60% rating for his psychiatric disorder) and a VA examination report indicated unemployability due to that disability, the claimant has made an informal claim for a rating increase, to include an evaluation as to a TDIU rating, and VA must adjudicate TDIU. Id. at 420-21. The Court concluded that such an informal claim had been raised: "We now hold as a matter of law that a TDIU claim was reasonably raised to the RO and was not adjudicated. Thus, there is no final RO decision on this claim that can be subject to a CUE attack." Id. at 422. We note that Norris held that the TDIU claims reasonably raised in 1987 and 1989 remained pending at the RO, and did not reach the issue of the ultimate fate of the appellant's claim. The holding of Norris was "the Board decision determining that CUE was not committed in [the] 1987 and 1989 RO decisions is *12 AFFIRMED for the reasons that are contained herein." Id. (capitalization in original). The practical conclusion of Norris was that, following the VA medical examination that was conducted to determine whether the veteran's condition had improved in order to determine whether the assigned disability rating should be decreased or continued, the 1987 and 1989 RO decisions did not adjudicate the informal claims for a TDIU rating raised by that evidence when they "continued" or "resumed" the previously awarded 70% rating after the hospitalization. Id. at 415-16.
By comparison, in
Andrews
, the appellant was granted service connection and assigned a
disability rating for post-traumatic stress disorder (PTSD) in a 1983 RO decision.
The Secretary argued to the Federal Circuit "that, even if the VA had erred in failing to construe the veteran's pleadings to raise a TDIU claim in the 1983 and 1985 proceedings, such an error should not be considered on a CUE motion. Rather, the government urges that the TDIU claim is still pending before the RO awaiting adjudication, and that the Veterans Court and this court are without jurisdiction because there is no Board decision for us to review." Id. at 1281. The Federal Circuit replied: "We disagree; the government's position is contradicted by our decision in Roberson . . . . [W]e clearly held in Roberson that the VA's failure to consider a TDIU claim in this manner is properly challenged through a CUE motion." Id. Nonetheless, the Federal Circuit in Andrews concluded that the appellant had not asserted the potential TDIU claim to the Board as a basis for finding CUE in the 1983 and 1985 RO decisions. Id. at 1284. As the only CUE theory asserted to the Board was an error in the schedular rating assigned, the TDIU theory of CUE was not reviewable until properly presented to and decided by the Board. Id. relies on the Federal Circuit's decision in Roberson , which also involved a TDIU
claim.
Roberson
stated that
Norris
"is both on-point and informative."
Unlike Norris , Roberson's original medical disability claim was decided by the RO and is the claim for which Roberson seeks the highest rating possible. Ratings decisions by the DVA are deemed "final and binding . . . as to conclusions based on the evidence on file at the time the [DVA] issues written notification of the decision." 38 C.F.R. § 3104(a) (1994). But see Hayre v. West ,188 F.3d 1327 , 1333 (Fed. Cir. 1999) ("[a] breach of duty to assist in which the VA failed to obtain pertinent [evidence] specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error ... that vitiates the finality of an RO decision for purposes of a direct appeal"). Roberson has not alleged that the VA failed to obtain pertinent evidence. Thus, Roberson's claim has been finally decided by the RO .
The
Andrews
court did not disagree with
Norris
, and its decision stated only that a claimant
must raise the issue of an alleged failure to address TDIU through a collateral attack, such as a
motion for revision based on CUE, when evidence regarding TDIU was before the RO prior to its
decision on a claim that sought a schedular rating and that schedular rating decision was not directly
appealed.
DiCarlo
,
This interpretation of
Norris
,
Roberson
, and
Andrews
is consistent with the other decisions
of the Federal Circuit in this area. Twelve days after
Andrews
was decided, the Federal Circuit said
in
Bingham
"as we recently held in
Andrews v. Nicholso
n,
In addition to
Bingham
's interpretation of and
Andrews
' reliance on
Roberson
, we
note that the Federal Circuit has issued two other major cases discussing the Secretary's duty to
sympathetically read a veteran's pleadings in determining whether an informal claim was raised. We
find
Moody v. Principi
,
We also note the Federal Circuit's decision in Szemraj v. Principi , supra, does not favor a particular theory or procedure for dealing with unadjudicated claims. In Szemraj , the appellant alleged CUE in a 1989 Board decision that denied service connection for a psychosis in service. The theory of the CUE motion was that the 1989 Board decision "failed to apply the one-year post- service presumption of service connection provided by 38 C.F.R. §§ 3.307 and 3.309" when it denied his psychosis claim. Szemraj , 357 F.3d at 1372. Our decision held that the Roberson duty to sympathetically read the pleadings of a veteran did not apply to CUE motions. Szemraj , 357 F.3d at 1373. The Federal Circuit reversed this legal conclusion and held that "VA has a duty to sympathetically read a veteran's allegations in all benefit claims." Id. However, the Federal Circuit went on to clarify:
[A]part from the requirement that a pro se veteran's pleadings be read sympathetically, our decision in Roberson did not change the well-established legal standard for determining the existence of CUE in RO and BVA decisions . Cook ,318 F.3d at 1344 . . . . In Cook we held en banc that in order to constitute CUE, the alleged error must be both "outcome determinative" and "based upon the evidence of record at the time of the original decision.318 F.3d at 1344 . . . . Contrary to the appellant's argument, Roberson does not require VA to reconcile the conflicting evidence before adjudication, nor does it require the agency to develop evidence on the veteran's theory. To construe Roberson as requiring factual development as a matter of course would be to effectively overrule our decision in Cook that the failure to assist in developing the evidentiary record cannot constitute CUE. See id.
Szemraj
,
Szemraj is distinguishable from this case because the CUE motion on appeal was attacking a prior decision that explicitly denied the claim at issue. The original decision denied a claim for service connection for psychosis and the CUE motion asserted that the denial of service connection for psychosis was in error because it failed to consider a specific theory of entitlement. Szemraj , 357 F.3d at 1372. Szemraj did not involve the failure to adjudicate a separate claim that had been reasonably raised and nothing in Szemraj speaks to the appropriate theory or procedure to employ when the Secretary fails to adjudicate an entirely separate claim. Szemraj stands only for the proposition that the duty to sympathetically read a veteran's pleadings also applies to those pleadings that assert CUE.
Additionally, we note that the Federal Circuit’s en banc decision in
Cook
endorsed our
pending claim case law. As discussed in Part III.B.2., supra, the en banc Federal Circuit in
Cook
favorably reviewed our decisions in
Tablazon
,
Hauck
,
Kuo
, and
Ashley
and endorsed our holdings
that a procedural default clock does not run while the ball is in the Secretary's court.
If we were to accept the Secretary's invitation to read broadly as endorsing a general doctrine of sub silentio denial, we would run afoul of this distinction recognized in Cook . It is reasonable to say that an appellant who receives a disability rating that is less than 100% has notice of how his condition has been rated and the opportunity to appeal the rating decision. Even if he does not have a clear understanding of the TDIU aspect of a rating decision, he does have a clear statement of which disability is being rated and the fact that the Secretary has declared it to be less than 100% disabling. Hence, an appellant's ignorance of a particular legal theory for a higher rating does not preclude him from understanding that an appealable decision has been made concerning *17 his claim. However, by urging us to adopt a doctrine of general sub silentio denials, the Secretary is suggesting in this case that the denial of a non-service-connected pension claim in 1986 gave the appellant in this case adequate notice and opportunity to appeal the 1986 RO decision as to a section 1151 claim. This suggestion goes too far. A section 1151 claim, which treats a disability as if it were service-connected, is in no way an aspect of a claim for a non-service-connected pension.
Reading
Andrews
as broadly as the Secretary suggests would run afoul of the due process
concerns voiced by the en banc Federal Circuit in
Cook
and by this Court in
Thurber v. Brown
,
Aside from the support we find in prior case law, the pending-unadjudicated-claim theory is clearly a preferable approach to administering the veterans benefits system. Treating the Secretary’s failure to sympathetically read and adjudicate a reasonably raised claim as a pending claim benefits veterans because it protects their appellate rights and works no hardship on the Secretary in that it requires only that each claim be specifically addressed. If a veteran is aware of a particular benefit and makes an unambiguous claim for it, the Secretary’s duty to sympathetically read his submissions is irrelevant. That duty primarily helps those veterans who have not clearly articulated that they are seeking a particular benefit. It is illogical to expect such veterans to immediately recognize when the Secretary has failed to adjudicate a reasonably raised claim because it is ignorance of the intricacies of potential claims that makes the duty necessary. Hence, if the law equates a VA failure to adjudicate a reasonably raised claim to a sub silentio denial of the claim, then it is unlikely that the veteran would have sufficient notice of the disposition of his claim to assert *18 error on direct appeal. Instead, any error in the adjudication of that claim would have to be raised in a CUE motion. 38 C.F.R. § 20.1403(c) (2005) (defining CUE as "a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error"); see also Moody , supra .
Moreover, even a savvy veteran may not be aware that there is a disagreement as to which document raised a claim until after an effective date is assigned. Veterans benefits litigation is frequently piecemeal. A veteran will submit a continuous stream of evidence and correspondence. Rather than holding all the claims until every one is ready to be decided, the Secretary will develop and decide multiple claims separately–often over a period of years. A savvy veteran could easily submit what he believes to be a claim and receive from the Secretary an adjudication of a previously raised claim for the same disability. The veteran could then submit more correspondence on the claim he was trying to raise and receive a request from the Secretary for evidence or to report for an examination. There could be years of intervening appeals, remands, and revised decisions before the claim is actually granted and the assignment of the effective date reveals that the Secretary did not recognize the initial submission as a claim for the benefit. In the meantime, the decision that sub silentio denied the claim that the appellant alleges was reasonably raised has become final and can only be challenged for CUE. Once again, the veteran would have been denied direct review of the sub silentio denial because he had no reason to know that was an issue at the time he could have appealed that decision. Accordingly, accepting a doctrine of sub silentio denials has grave implications for due process and protecting the appellate rights of veterans.
Of course, not every claim for a benefit will be granted. Accordingly, if a claim is denied,
it is often irrelevant when it was first raised. There does not need to be any decision on the issue of
when the claim was first raised unless and until it actually becomes relevant to an award of benefits.
If a claim is granted, however, the date the claim was first raised is relevant to determining the
effective date. Under
Myers
, the appellant can argue that an earlier claim for the benefits should be
considered part of the same claim stream that eventually resulted in the award of benefits for the
purpose of establishing the effective date. If a veteran believes that he has a pending claim for a
benefit that has not received an initial decision, the veteran can unambiguously inform the Secretary
*19
that a particular benefit is being sought. The Secretary must then decide entitlement to the benefit
and-if relevant-address the issue of when the claim was first raised.
See DiCarlo
,
This is not to say that the question of when a claim was raised will never be relevant before
an effective date is assigned. It may be relevant, for example, to determining which version or
versions of the law are relevant to the substantive question of entitlement.
See Rodriguez
v. Nicholson
,
Finally, we do not hold that the Secretary’s failure to adjudicate a reasonably raised claim can never be the basis for a CUE motion. Rather it can be the basis of a CUE motion as to a final decision of the Secretary where the issue was relevant to a decision actually made. As discussed above, Moody is a good example. Because the effective-date decision in that case had become final, the appellant properly alleged CUE in the effective-date decision on the theory that it failed to correctly identify which document was the appellant’s claim for purposes of assigning an effective date under section 5110. The appellant's theory in this case is no different from the theory of the appellant in Moody . The only difference is that, as a matter of procedure, the appellant here has directly appealed his effective-date decision rather than allowing it to become final. Beverly , 19 Vet.App. at 406 ("It would be illogical and unfair to require the appellant to wait until the Board decision is final and then face the high burden of proving CUE when any other error can be addressed immediately and more favorably when raised in a timely manner.")
Based on the above, we conclude that the Federal Circuit has neither overruled the pending- unadjudicated-claim doctrine articulated in Norris nor created a general doctrine of sub silentio denials. Therefore, the appellant is correct that we have jurisdiction over his appeal because it is not a collateral attack on a prior final RO or Board decision.
E. Application of Law to Fact
Now that we are satisfied that the appellant is properly raising his assertion of error against
the effective-date decision, we must review the Board's findings and conclusions below. The Board
reviewed the 1986 filings and found that nothing in the four corners of either document could be
construed as an intent to claim section 1151 benefits R. at 8-9. The Board focused on whether the
appellant had alleged negligence or a lack of proper skill on the part of the VA physicians and
whether he had expressed an intent to apply for section 1151 benefits. R. at 8-9. Both of these forms
of analysis were legally incorrect. As the Federal Circuit explained in
Hodge v. West
,
As to the Board's suggestion that the appellant was required to allege negligence or lack of skill, measuring the appellant's submissions against a strict pleading requirement is fundamentally inconsistent with the concept of a sympathetic reading and, therefore, constituted legal error by the Board. The application of such a pleading requirement violates the duty to sympathetically read submissions because it required the appellant to demonstrate a level of sophistication that would render moot the duty to sympathetically read his pleadings. In other words, it is precisely because unsophisticated claimants cannot be presumed to know the law and plead claims based on legal elements that the Secretary must look at the conditions stated and the causes averred in a pro se *21 pleading to determine whether they reasonably suggest the possibility of a claim for a benefit under title 38, regardless of whether the appellant demonstrates an understanding that such a benefit exists or of the technical elements of such a claim. The Board's suggestion that the appellant was required to articulate a specific intent to "claim . . . compensation benefits under the provisions of 38 U.S.C.A. § 1151" is similarly flawed. R. at 8, 9. The duty to sympathetically read exists because a pro se claimant is not presumed to know the contents of title 38 or to be able to identify the specific legal provisions that would entitle him to compensation. Again, there would be no need for the duty to sympathetically read pleadings if pro se claimants had encyclopedic knowledge of veterans law.
Finally, we hold that it was also error for the Board to suggest that it was limiting the material
being reviewed to the "four corners" of the application and the statement in support of the claim.
Cf. EF v. Derwinski
,
In summary, a sympathetic reading of the appellant's pleadings cannot be based on a standard
that requires legal sophistication beyond that which can be expected of a lay claimant and must
consider whether the appellant's submissions, considered in toto, have articulated a claim. In this
case, it is premature for us to determine whether the Board's finding was clearly erroneous because
its denial was based on the application of overly strict requirements that were inconsistent with the
Secretary's duty to sympathetically read pro se pleadings. Although we need not formulate a specific
standard at this time, we note that the duty to sympathetically read must be based on reasonable
expectations of a pro se claimant and the Secretary. It is the pro se claimant who knows what
symptoms he is experiencing that are causing him disability,
see Cintron v. West
,
On remand, the Secretary must consider whether the May 8, 1986, application and the appellant's submissions in support of that application raised a claim for benefits under section 1151 based on a sympathetic reading of those documents that does not require conformance with legal pleading requirements or intent to seek benefits under section 1151 explicitly. In addition, such consideration must be undertaken in accordance with regulations, law, and provisions in the VA Adjudication Procedure Manual that may be applicable to his 1986 filings, see , e.g. , 38 C.F.R. §§ 3.151 (1985 & 2005) ("claim . . . for pension may be considered to be claim for compensation"); 3.155 (1985 & 2005) (discussing informal claim); VA Adjudication Procedure Manual (M21-1), para. 21.01(a) (1983-1990) ("VA Form 21-526, Veterans Application for Compensation or Pension") (VA to consider "VA Form 21-526 properly completed as to items 1 through 40 and signed by the veteran in item 42" as "a claim for either disability compensation or pension, or both, depending upon the manner of preparation and intent of the claimant, as provided below"); M21-1, Part III, para. 2.02(a) (2005) (essentially same as above but without reference to item numbers on Form 21- 526); M21-1, para. 21.01(d) (1983-1990) ("Combined Claim for Compensation and Pension") ("If the information specified" in both subparagraphs b (regarding claims for compensation) and c (regarding claim for pension) above is furnished, VA is to consider it "a claim for both benefits," and "[i]f there is any doubt as to which benefits is sought," VA is to adjudicate "both phases of the claim"); M21-1, Part III, para. 2.02(d) (2005) (essentially same). If the Board concludes that such a claim was raised, it must decide whether that claim was ever adjudicated or whether it was still pending at the time of the April 15, 1992, correspondence from the veteran. Based on its factual findings, the Board must address whether the appellant is entitled to an effective date earlier than April 15, 1992, for the grant of benefits under section 1151.
IV. CONCLUSION
Accordingly, the December 12, 2003, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this opinion.