Veteranclaims’s Blog

July 29, 2013

Massie v. Shinseki, No. 2012-7087 (Decided: July 29, 2013); 38 C.F.R. § 3.157(b)(1); Informal Claim, Specific Particular Examination, Condition had Worsened

Excerpts from decision below:

“Specifically, the Veterans Court held that the letter in question was not a “report of examination” under its interpretation of § 3.157(b)(1) because it (1) did not describe the results of a “specific, particular examination” and (2) did not suggest that Massie’s condition had worsened.
As a consequence, the Veterans Court ruled that Massie had not reasonably raised a theory of entitlement to an earlier effective date under § 3.157(b)(1).”

============================
“The parties raise two issues within our jurisdiction in interpreting § 3.157(b)(1): whether a report of an examination
must identify a single examination and its date, and whether it must also indicate that the symptoms of a disability have worsened.
We conclude that the Veterans Court did not err in interpreting
§ 3.157(b)(1) regarding both contested issues.”

============================
Footnote 1
“The Veterans Court ultimately concluded, however, that for a medical record to qualify as a “report of examination” under § 3.157(b)(1), it could be far less detailed.
We agree with that assessment. As long as a report references one or more actual examinations and indicates that a veteran’s disability has worsened, it will qualify under section § 3.157(b)(1).

============================
“The Board, however, did not need to expressly discuss whether that letter was an informal claim for increased benefits because, as the Veterans Court found, it was not reasonably raised in the record.”
============================

United States Court of Appeals for the Federal Circuit
______________________
TERRANCE D. MASSIE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7087
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-3397, Judge Lawrence B.
Hagel.
______________________
Decided: July 29, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him 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 MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and MARTIE
2 TERRANCE MASSIE v. SHINSEKI
ADELMAN, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE and O’MALLEY,
Circuit Judges.
LOURIE, Circuit Judge.

Terrance D. Massie appeals from the decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”) determining that a letter from his
physician did not qualify as an informal claim for an
increased rating and thus denying him entitlement to an
earlier effective date for his service-connected varicose
vein disability. Massie v. Shinseki, 25 Vet. App. 123
(Sept. 14, 2011). Because the Veterans Court did not err
in interpreting the regulatory requirements for an informal
claim for increased benefits based on a report of
examination or admission, we affirm.

BACKGROUND
Massie served on active duty in the United States
Army from November 1968 to August 1970. The Department
of Veterans Affairs (the “VA”) regional office (the
“RO”) awarded him benefits for varicose veins and related
surgery, initially as 10% disability and increased to 50%,
effective March 1990. On April 4, 2001, Massie filed a
claim for an increased disability rating and submitted a
May 1999 letter from a VA physician stating that he had
been treating Massie for “multiple medical problems”
including “chronic venous insufficiency” that had “persisted
in spite of prior surgical treatment with vein stripping.”
Massie, 25 Vet. App. at 124. The letter concluded
that “[t]his problem . . . left Mr. Massie with significant
pain when he [was] on his feet for any period of time.” Id.
Based on his submission and other evidence not relevant
to this appeal, the RO increased Massie’s rating to
100%, effective April 4, 2001, the date of his filing for an
increased rating. Nonetheless, Massie filed a notice of
TERRANCE MASSIE v. SHINSEKI 3

disagreement and a subsequent appeal seeking an effective
date of April 4, 2000, under 38 U.S.C. § 5110(b)(2)
and 38 C.F.R. § 3.400(o)(2) (allowing award of disability
up to one year before filing of a claim), based on the 1999
letter from the VA physician. The Board of Veterans’
Appeals (the “Board”) rejected his argument and denied
his claim for an earlier effective date prior to April 4,
2001, stating that the letter was dated more than one
year prior to the 2001 filing date, only reflected his ongoing
chronic disability, and did not evidence any treatment
during the relevant time period between April 4, 2000 and
April 4, 2001. Massie appealed to the Veterans Court,
arguing for the first time that the Board erred by not
considering the May 1999 letter from the VA physician as
an informal claim for increased disability under 38 C.F.R.
§ 3.157(b)(1).
On appeal, the Veterans Court discussed in depth
whether, under Maggitt v. West, 202 F.3d 1370 (Fed. Cir.
2000), it should even entertain Massie’s newly-raised
informal claim argument because Massie failed to exhaust
his administrative remedies prior to appealing to the
Veterans Court. The Veterans Court stated that, under
the circumstances, it would ordinarily have exercised its
discretion under Maggitt to invoke the exhaustion doctrine
and bar Massie from arguing for the first time that
the 1999 letter was an informal claim for increased disability.
The Veterans Court, however, noted a possible
exception to Maggitt under Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009), which held that if the Board fails to
consider an issue reasonably raised in the record, then the
Board commits error requiring remand. Thus, out of “an
abundance of caution,” the Veterans Court decided to
forgo invoking the exhaustion doctrine under Maggitt and
instead evaluated whether Massie’s claim that an informal
claim for increased benefits was reasonably raised in
the record by the 1999 letter and hence whether the
Board therefore erred in failing to consider it. Massie, 25
Vet. App. at 130.
4 TERRANCE MASSIE v. SHINSEKI

After reviewing the record, however, the Veterans
Court held on the merits that the May 1999 letter from
the VA physician was not an informal claim for increased
disability because it was not in fact reasonably raised in
the record. Specifically, the Veterans Court held that the
letter in question was not a “report of examination” under
its interpretation of § 3.157(b)(1) because it (1) did not
describe the results of a “specific, particular examination”
and (2) did not suggest that Massie’s condition had worsened.
As a consequence, the Veterans Court ruled that Massie had not reasonably raised a theory of entitlement to an earlier effective date under § 3.157(b)(1).
This appeal followed.

DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any interpretation
thereof [by the Veterans Court] . . . and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determination,
or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). We therefore
generally lack jurisdiction to review challenges to the
Board’s factual determinations or to any application of
law to fact. See, e.g., Johnson v. Derwinski, 949 F.2d 394,
395 (Fed. Cir. 1991). But we do have jurisdiction here to
determine the proper interpretation of a regulation such
as § 3.157(b)(1).
Massie contends that the Veterans Court misinterpreted
§ 3.157(b)(1) to require that a letter from a treating
physician expressly relate to a specific, identifiable outpatient
or hospital examination to qualify as a “report of
examination” as a basis for an informal claim for increased
benefits. According to Massie, such a narrow
interpretation of the regulation, when the letter was
TERRANCE MASSIE v. SHINSEKI 5

generated by a VA physician and constructively present in
the VA’s records, is contrary to 38 C.F.R. §§ 5107(b) and
7104(a) requiring the Board to consider all relevant
evidence and applicable laws and regulations.
The government responds that, because the letter does not demonstrate that Massie’s symptoms have worsened, it cannot qualify as an informal claim for increased benefits under § 3.157(b)(1) and 38 U.S.C. § 5110(b)(3). The government adds that the Veterans
Court did not err in interpreting § 3.157(b)(1) to require that a specific examination be identified. The government posits that the Veterans Court decision is entirely consistent with §§ 5107(b) and 7104(a) because the letter was in fact considered by the Board and, as the Veterans Court noted, it did not qualify as an informal claim for increased benefits.
The Veterans Court, in effect, interpreted the requirements
of 38 C.F.R. § 3.157(b)(1), which details the requirements for an informal claim for increased benefits based on a report of examination, to require a report of a specific examination that indicated that a veteran’s disability has worsened. We do so as well.
The regulation at issue reads as follows:
(1) Report of examination or hospitalization
by Department of Veterans Affairs or uniformed
services. The date of outpatient or hospital
examination or date of admission to a VA or
uniformed services hospital will be accepted as the
date of receipt of a claim. The date of a uniformed
service examination which is the basis for granting
severance pay to a former member of the
Armed Forces on the temporary disability retired
list will be accepted as the date of receipt of claim.
The date of admission to a non-VA hospital where
a veteran was maintained at VA expense will be
accepted as the date of receipt of a claim, if VA
maintenance was previously authorized; but if VA
6 TERRANCE MASSIE v. SHINSEKI

maintenance was authorized subsequent to admission,
the date VA received notice of admission
will be accepted. The provisions of this paragraph
apply only when such reports relate to examination
or treatment of a disability for which serviceconnection
has previously been established or
when a claim specifying the benefit sought is received
within one year from the date of such examination,
treatment or hospital admission.
§ 3.157(b)(1) (emphasis added).

The parties raise two issues within our jurisdiction in
interpreting § 3.157(b)(1): whether a report of an examination
must identify a single examination and its date, and whether it must also indicate that the symptoms of a disability have worsened.
We conclude that the Veterans Court did not err in interpreting
§ 3.157(b)(1) regarding both contested issues.

First, the report of examination must identify a specific,
particular examination to qualify as an informal claim for
increased benefits. Section 3.157(b)(1) is entitled a “Report
of examination or hospitalization by [VA]” and requires
the identification of “the date” of “examination” or
“admission” to set the date of receipt of the claim. The
several references to “examination” and “the date” make
clear that a specific, dated examination or admission is
required. The Veterans Court thus did not err in determining
that the term “report of examination” requires
that the report “describe the results of a specific, particular
examination.” Massie, 25 Vet. App. at 133. We hasten
to add, however, that a report of examination could be
based on more than one examination. However, at a
minimum, to qualify as an informal claim for increased
benefits, a “report of examination” must identify at least
one specific examination by date.
Second, it is also clear that the report of an examination,
in order to qualify as an informal claim for increased
benefits, must indicate that the veteran’s disability has
TERRANCE MASSIE v. SHINSEKI 7

worsened. Section 5110(b)(3), which must be consistent
with the “date of receipt” of the claim in § 3.157(b)(1),
provides that the effective date of such an award of increased
benefits is tied to the earliest ascertainable date
“that an increase in disability had occurred” up to one
year before the date of receipt of that informal claim. 38
U.S.C. § 5110(b)(3); see also 38 C.F.R. § 3.400(o)(2) (“Earliest
date as of which it is factually ascertainable that an
increase in disability had occurred if claim is received
within 1 year from such date otherwise, date of receipt of
claim.”). Although the language of § 3.157(b)(1) does not
expressly require that the report indicate the veteran’s
service-connected disability has worsened, any contrary
interpretation would be inconsistent with the statute, and
the regulation can hardly require less than the statute. It
also would make no sense, because under that reading
any subsequent medical record could trigger an informal
claim under § 3.157(b)(1). See generally Timex V.I. v.
United States, 157 F.3d 879, 886 (Fed. Cir. 1998) (holding
that constructions that cause “absurd” results are to be
avoided). The Veterans Court thus did not err in requiring
that a report of examination offered as a basis for an
informal claim for increased benefits must indicate that
the disability at issue has increased.1 See Massie, 25 Vet.
App. at 134.

1 The Veterans Court also consulted the Veterans
Benefits Administration Adjudication Procedures Manual
(M21-1MR) which lists eight (8) different factors intended
to assist the VA in determining whether a report of examination
is sufficient for compensation and pension purposes.
The Veterans Court ultimately concluded, however,
that for a medical record to qualify as a “report of examination”
under § 3.157(b)(1), it could be far less detailed.
We agree with that assessment. As long as a report
references one or more actual examinations and indicates

8 TERRANCE MASSIE v. SHINSEKI

The Veterans Court’s accompanying determinations that the 1999 letter from the VA physician did not identify a specific examination and did not indicate worsened symptoms are dispositive applications of law to fact, outside of our jurisdiction. § 7292(d)(2). Thus, while affirming the meaning of the regulation, we do not review the Veterans Court’s decision concerning the application of the regulation.
Finally, we disagree with Massie’s position that the Veterans Court’s decision is inconsistent with §§ 5107(b) and 7104(a), which require the Board to consider all the evidence of record and to consider and apply all applicable provisions of law and regulation. The Board did specifically consider the 1999 VA physician’s letter in its decision.
The Board, however, did not need to expressly discuss whether that letter was an informal claim for increased benefits because, as the Veterans Court found, it was not reasonably raised in the record. Thus, contrary to Massie’s argument, the Board did not have to evaluate that letter as an informal claim for increased benefits under § 3.157(b)(1).
Because we resolve the appeal based on the correctness of the Veterans Court’s interpretation of § 3.157(b)(1), we need not address the Veterans Court’s discussion of exhaustion or the effect of Maggitt on this case. We have considered Massie’s remaining arguments and conclude that they are without merit. Accordingly,
we affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.

that a veteran’s disability has worsened, it will qualify
under section § 3.157(b)(1).

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