Veteranclaims’s Blog

January 4, 2013

Harris v. Shinseki, No. 2012-7111(Decided: January 4, 2013); FedCir; 38 U.S.C. § 5107(b) Duty is Separate from Duty Articulated in Moody, Szemraj, and Roberson; Resolve Ambiguities in Veteran’s Favor

Excerpts from decision below:
Because the Veterans Court did not apply the proper legal standard for determining whether the Board had correctly determined the earliest applicable date for Mr. Harris’ claim for benefits, we vacate and remand with instructions for the Veterans Court to remand this issue to the Board (along with the other matters in the case previously remanded to the Board) for further proceedings consistent with this opinion.
=============================
“However, we may review whether the Veterans Court failed to consider a controlling rule of law in reaching its decision. 38 U.S.C. § 7292(a). Our previous decisions have made clear that pro se filings must be read liberally.
See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).3 In Roberson, we held that the VA has a duty to

3 The cited pro se cases involve clear and unmistakable
error (CUE) reviews, rather than a direct appeal
NORMAN HARRIS v. SHINSEKI
5

fully develop any filing made by a pro se veteran by determining all potential claims raised by the evidence.
We reiterated this requirement in Szemraj,
when we stated that the VA must generously construe a pro se veteran’s filing to discern all possible claims raised by the evidence. Finally, in Moody, we held that any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran’s favor.
Neither the single-judge memorandum decision nor the order from the three-judge panel provides any indication that the Veterans Court considered Moody, Szemraj,
or Roberson, or that the court otherwise acknowledged its obligation to require that the Board generously construe the evidence in this case. Although the Board in its
decision had indicated that it “considered the applicability of the benefit-of-the-doubt doctrine,” slip op. at 12, we note that the duty articulated in Moody, Szemraj, and Roberson is separate and distinct from the statutory benefit-of-the-doubt requirement under 38 U.S.C. § 5107(b).
The duty articulated in Moody, Szemraj, and Roberson stems from the “uniquely pro-claimant” character of the veterans’ benefits system and requires VA “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Roberson, from a Board’s denial-of-benefits decision, as was the case here. However, the VA’s duty to read filings liberally is equally applicable to such pro se direct appeals. Compare Robinson v. Shinseki, 557 F.3d 1355, 1359 (Fed. Cir. 2009) (discussing why direct appeals require sympathetic viewing by VA even when counsel are present) with Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir.
2005) (indicating that the liberal reading rule is not applicable to CUE pleadings filed by counsel).
NORMAN HARRIS v. SHINSEKI
6

251 F.3d at 1384 (citing Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1988)) (emphasis added). In contrast, the statutorily-mandated benefit-of-the-doubt rule assists the VA in deciding a veteran’s claim on the merits after the claim has been fully developed: “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). Thus, the Board’s consideration of the benefit-of-the-doubt doctrine does not replace VA’s duty under Moody, Szemraj, and Roberson to generously construe the evidence in this case and resolve any ambiguities in Mr. Harris’ favor.
=============================

United States Court of Appeals
for the Federal Circuit
__________________________
NORMAN A. HARRIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7111
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 10-0704, Judge Robert N. Davis.
__________________________
Decided: January 4, 2013
__________________________
NORMAN A. HARRIS, of Greenville, Indiana, pro se.
CARRIE .A DUNSMORE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondentappellee.
With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and LARA K. EILHARDT, AttorNORMAN
HARRIS v. SHINSEKI
2
ney, United States Department of Veterans Affairs, of
Washington, DC
__________________________
Before DYK, PLAGER, and O’MALLEY, Circuit Judges.
PLAGER, Circuit Judge.
Norman Harris seeks review of a decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”).1 The Veterans Court had affirmed a
February 23, 2010, decision of the Board of Veterans’
Appeals (“Board”). In the part of that decision relevant to
this appeal, the Board denied entitlement to an effective
date prior to July 29, 2002, for Mr. Harris’ serviceconnected
contact dermatitis and latex allergy.2 Because
the Veterans Court did not apply the proper legal standard
for determining whether the Board had correctly
identified the date of Mr. Harris’ earliest application for
the benefits attributable to this claim, we vacate and
remand.

BACKGROUND
Mr. Harris served on active duty in the United States
Army from October 1963 to October 1966 and from January
1967 to January 1970. On January 24, 1985, he
1 Harris v. Shinseki, No. 10-0704, 2011 WL
5605990 (Vet. App. Nov. 18, 2011).
2 The Veterans Court’s decision also remanded Mr.
Harris’ claims that he is entitled to an increased disability
rating for his service-connected contact dermatitis and
latex allergy, and that he should be compensated as a
married person rather than as a single person. In his
briefs, Mr. Harris does not challenge the Veterans Court’s
decision to remand those claims for readjudication by the
Board. Thus, the Veterans Court’s remand decision is not
before us on appeal.
NORMAN HARRIS v. SHINSEKI
3
participated in a VA Medical Center examination. One of
the forms associated with that examination is captioned
an “Agent Orange Registry Code Sheet” and indicates
that Mr. Harris complained of “skin rashes on trunk and
arms.” Another of the forms associated with Mr. Harris’
examination, listing his years of service in Vietnam, is
captioned an “Application for Medical Benefits,” states
that “[t]he information on this form is solicited under
authority of Title 38, U.S.C., ‘Veterans’ Benefits,’ and will
be used to determine your eligibility for medical benefits,”
and was signed by Mr. Harris and dated “1-24-85.”
On July 29, 2002, Mr. Harris, pro se, filed a claim
seeking service-connected disability compensation for,
among other things, contact dermatitis and latex allergy.
The Department of Veterans Affairs regional office ultimately
granted Mr. Harris’ claims, and assigned an
effective date for his skin condition disabilities of July 29,
2002. Mr. Harris, again appearing pro se, appealed to the
Board arguing, among other things, that the effective date
for his skin condition disabilities should be the date of his
1985 VA Medical Center examination.
The Board held that “the report of the Agent Orange
Registry examination that was conducted in January
1985 did not constitute a claim – formal or informal – for
service connection for contact dermatitis and latex allergy”
and, therefore, “the written communication from
the Veteran that was received on July 29, 2002, is the
earliest expression by him of an intent to apply for service
connection for a skin disorder.” Slip Op. at 12. The Board
concluded that Mr. Harris is not entitled to an earlier
effective date for his service-connected skin disabilities.
Mr. Harris appealed the Board’s decision to the Veterans
Court. The Veterans Court “discern[ed] no clear
NORMAN HARRIS v. SHINSEKI
4
error with the Board’s finding that the 1985 form did not
constitute a claim,” and issued a single-judge decision
affirming the Board’s denial of an earlier effective date for
Mr. Harris’ skin disabilities. Harris, 2011 WL 5605990,
at *1. Mr. Harris filed a motion for panel reconsideration,
which the Veterans Court granted. Upon three-judge
review, the Veterans Court in a brief decision held that
the single-judge memorandum decision remains the
decision of the court. Mr. Harris now appeals to this
court.

DISCUSSION
This court’s review of Veterans Court decisions is
strictly limited by statute. Unless an appeal presents a
constitutional issue, we may not review challenges to
factual determinations or challenges to a law or regulation
as applied to the facts of a particular case. 38 U.S.C.
§ 7292(d)(2). Thus, the Government is correct that “the
determination as to whether evidence of record establishes
that the claimant filed a claim for benefits . . . is
beyond this court’s jurisdiction . . . .” Resp’t-Appellee’s
Informal Br. at 10-11 (internal quotations and modifications
omitted).
However, we may review whether the Veterans Court
failed to consider a controlling rule of law in reaching its
decision. 38 U.S.C. § 7292(a)
. Our previous decisions
have made clear that pro se filings must be read liberally.
See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir.
2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir.
2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001).3 In Roberson, we held that the VA has a duty to
3 The cited pro se cases involve clear and unmistakable
error (CUE) reviews, rather than a direct appeal
NORMAN HARRIS v. SHINSEKI
5
fully develop any filing made by a pro se veteran by
determining all potential claims raised by the evidence.
We reiterated this requirement in Szemraj, when we
stated that the VA must generously construe a pro se
veteran’s filing to discern all possible claims raised by the
evidence. Finally, in Moody, we held that any ambiguity
in a pro se filing that could be construed as an informal
claim must be resolved in the veteran’s favor.
Neither the single-judge memorandum decision nor
the order from the three-judge panel provides any indication
that the Veterans Court considered Moody, Szemraj,
or Roberson, or that the court otherwise acknowledged its
obligation to require that the Board generously construe
the evidence in this case. Although the Board in its
decision had indicated that it “considered the applicability
of the benefit-of-the-doubt doctrine,” slip op. at 12, we
note that the duty articulated in Moody, Szemraj, and
Roberson is separate and distinct from the statutory
benefit-of-the-doubt requirement under 38 U.S.C.
§ 5107(b).
The duty articulated in Moody, Szemraj, and
Roberson stems from the “uniquely pro-claimant” character
of the veterans’ benefits system and requires VA “to
fully and sympathetically develop the veteran’s claim to
its optimum before deciding it on the merits.” Roberson,
from a Board’s denial-of-benefits decision, as was the case
here. However, the VA’s duty to read filings liberally is
equally applicable to such pro se direct appeals. Compare
Robinson v. Shinseki, 557 F.3d 1355, 1359 (Fed. Cir.
2009) (discussing why direct appeals require sympathetic
viewing by VA even when counsel are present) with
Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir.
2005) (indicating that the liberal reading rule is not
applicable to CUE pleadings filed by counsel).
NORMAN HARRIS v. SHINSEKI
6
251 F.3d at 1384 (citing Hodge v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1988)) (emphasis added). In contrast, the
statutorily-mandated benefit-of-the-doubt rule assists the
VA in deciding a veteran’s claim on the merits after the
claim has been fully developed: “When there is an approximate
balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to
the claimant.” 38 U.S.C. § 5107(b). Thus, the Board’s
consideration of the benefit-of-the-doubt doctrine does not
replace VA’s duty under Moody, Szemraj, and Roberson to
generously construe the evidence in this case and resolve
any ambiguities in Mr. Harris’ favor.
Because the Veterans Court did not apply the proper
legal standard for determining whether the Board had
correctly determined the earliest applicable date for Mr.
Harris’ claim for benefits, we vacate and remand with
instructions for the Veterans Court to remand this issue
to the Board (along with the other matters in the case
previously remanded to the Board) for further proceedings
consistent with this opinion.

VACATED AND REMANDED

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