Much has been bandied about on the subject of informal claims over the years. The  subject became so contentious, VA was forced to amend its own definition  in 1987. I’m sure we haven’t heard the end of it. Vickie Akers will be one in a long line of claimants who approach the bench with what they feel are genuine informal claims. I see Kenneth Carpenter’s legal reasoning here, but I feel it is flawed from several perspectives, the very least being the untimely filing of the Form 9 sixty-seven days late. In my mind, equitable tolling is an immutable law like the speed of light. All the time limits are clearly published. SOCs include the “Don’t miss this important date” information. If anything, this more clearly illuminates the dangers of being pro se in a shark pool. If you are unknowledgeable  on the process, leave it others who are. So, what light can 38 CFR § 3.155 shine on this…

38 CFR 3.155 – INFORMAL CLAIMS.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

(c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]

James D. Akers punched out February 12th, 2002. He was SC for 100% PTSD but the ROA does not state whether that was a protected rating of over ten years. There’s a big difference where DIC is concerned. Dying from anything other than PTSD- related issues within the first ten years gets the widow/er nothing. As it is a mental disorder, there are not many things that can provoke such a diagnosis. The one most often used is a drug addiction or disease such as HCV secondary to the bent brain syndrome. None of these were operable here or if they were, the record is silent.

Mrs. Akers promptly filed for DIC that same month. Not unexpectedly (from our standpoint), she was denied by her RO in June or July 2002. The ROA mentions both months. This seems like a miracle that any RO could act so quickly in assembling the facts and shooting her down. Too bad they can’t adjudicate things that rapidly nowadays.

In February 2003, approximately a year after filing the original claim, Miss Vickie filed her NOD. In short order again, the RO mailed her back her SOC on May 9th, 2003 asking her what part of “No” she didn’t understand. As usual, in no uncertain terms, on the Form 4107 it informed her she had sixty days in which to act in order to preserve her right to appeal. That the VA was able to get this decision out to her in a timely manner is notable. In the legal world, time is often of the essence. It was no different here. Just because she was taken aback by the novel timeliness of VA’s response, it did not give her license to dawdle in returning the Form 9.  Nevertheless, dawdle she did-until September 16, 2003. As this was sixty seven days past the mandated July 9th, 2003 suspense date. the appeal was untimely. Her claim was DOA. The legal definition of untimely varies with your and my interpretation. Having an attack of audible flatulence in church is untimely but excusable. Missing your court-appointed date by sixty seven days is unfortunate but inexcusable. Thus, rightfully so, on October 3rd, 2003 Mrs. Akers was dutifully informed of the untimeliness of the Form 9. Ever helpful as only those wascally wabbits can be, they told her she was free to reopen this claim at any time in the future if she so desired.

The sun rises early in July and it did so again on the 24th in 2004. Vicki was hard at it again and submitted a new Form 21-4138 requesting to reopen the old DIC shootdown. VA  toggled the red light and gave her the wave off/go around which seems to be the standard approach pattern in this day and age. After some quick and fancy footwork and the proper submission of what I strongly suspect was evidence in support of her claim which she’d had in her possession prior to the original denial, she was granted DIC. The problem in her mind was the effective date. July of 2004 wasn’t going to cut it. She’d filed in February of 02 and that was the correct date in her mind. We cannot see when she obtained the services of Mr. Kenneth Carpenter, VA attorney extraordinaire, from the record, but I assume it was about this time or shortly thereafter.

With the ink still wet on her new DIC grant, she dashed off a new NOD protesting her effective date. We’re talking $1000.00 + a month which equates to about $ 29 K. While that is not a kingly sum, she felt it was well worth the fight. In D.C. they eviscerated her arguments. She really didn’t have any of substance other than a vague feeling that she had been shat upon. We all feel that uncleanliness when dealing with the VA so that is a non-starter. Here’s where the argument goes astray.

The Court stated that in order for the September 2003 F-9 to have any import as a timely legal document ( read informal claim or better yet, a reopening of the old one) it would need to have supporting new and material evidence attached with the filing to make it ascertainable as to whether it could be construed as  either one of the two. No one at this stage was going to entertain the tired idea that it was still some orphan F-9 waif in search of a substantive appeal home.

Her arguments before the Court fell flatter than a cheese souffle at a 3 year old’s birthday party. Gee, no surprise there. What happened next is.

Off to the next legal bus stop- the 3rd Federal Circuit. This arcane legal institution across the street from the VA is where our claims land if we feel the Court has erred. Vicki, and by extension Kenneth, felt this was in order. The legal argument began to metamorphose from one of  a denial of EED due to BVA shenanigans into one of misreading the old F-9 as a cry in the night for an informal claim… or perhaps a reopening?

 Akers also argues that the Veterans Court committed a second error of law by failing to address Akers’s contention that her Form 9 submission constituted an informal claim to reopen her previously adjudicated claim pursuant to 38 C.F.R. § 3.155. According to Akers, the Veterans Court’s misinterpretation of section 3.156 caused it to reject Akers’s interpretation of section 3.155 sub silentio. Akers states that it is an undisputed fact that prior to her Form 9 submission she had expressed the intent to apply for benefits. Akers further argues that it is undisputed that DVA understood the identity of the benefit Akers was seeking from her Form 9 submission. Thus, according to Akers, it is a question of law based on undisputed facts whether her Form 9 constituted an informal claim to reopen her previously adjudicated claim.

DVA argues in the alternative that to the extent that the Veterans Court interpreted sections 3.155 and 3.156, it committed no reversible legal error. According to DVA, the Veterans Court did not base its holding on a categorical rule that no claim to reopen will ever be recognized absent simultaneous submission of new and material evidence, but rather that such evidence would have been necessary on the facts of this case. DVA also argues that the Veterans Court’s reference to Akers’s lack of intent to reopen her claim proved that the Veterans Court had applied the correct interpretation of section 3.155. Akers v. Shinseki  F 3d. 2013

If we just analyze the validity of the argument as to whether the Form 9 should have been a belated attempt to “reopen” her DIC claim and inadvertently submitted on the wrong form, it still must pass the the 38 USC § 5108 test.

Reopening a claim

It’s damn hard to argue in a court of law that the CFR doesn’t specify you need to submit N&M evidence to get the ball rolling when the statute it is predicated on says

 If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

In the alternative, the language of informal claims still requires some form of plea for such.  The VA is remiss in many things including prescience. For an informal claim to be adduced from a late substantive appeal filing isn’t so much a leap of faith as it is a misunderstanding. Given that Mrs. Akers got the formal SF 4107  “if you’d like to reapply, we’ll be here from 0800 to 1630 hrs Monday through Friday” its hard to discern the absence of any reopening/ informal claim phrase in the document. I find the VA to be dishonest and anything but forthright. Don’t mistake this paragraph as an endorsement of their behaviour. It is a rational analysis of the circumstances without slanting it for or against either party. Trying to change your argument at the Fed. Cir. and say a late F-9 was, well, like, you know, actually just an informal claim usually won’t fly. Perhaps the error was sending in her informal claim printed up on a Form 9.

Here is the meat of this whole argument. I will put the links in at the bottom to each of the mentioned cases of this decision because it shows the evolving process of what does (and does not) constitute this confounded slippery “informal” business.

The requirements for submitting an informal claim are generally established by 38 C.F.R. § 3.155(a), which provides in relevant part that “[a]ny communication or action, indicating an intent to apply for one or more benefits . . . may be considered an informal claim.” This court has held that to qualify as an informal claim, a communication must: (1) be in writing; (2) indicate an intent to apply for benefits; and (3) identify the benefits sought. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Further, 38 C.F.R. § 3.155(c) expressly recognizes, in the context of a claim for dependency and indemnity compensation, that “an informal request for . . . reopening will be accepted as a claim.” See also Tetro v. Principi, 314 F.3d 1310, 1312 (Fed. Cir. 2003) (reciting that claim-ant “had filed an informal claim to reopen”); Sagainza v. Derwinski, 1 Vet. App. 575, 579 (1991) (recognizing an informal claim to reopen previously adjudicated claim). Relevant to this case is the recognition that “statements cannot constitute informal requests to reopen . . . [if] they fail to demonstrate an intent to reopen a disallowed claim.” King v. Shinseki, 23 Vet. App. 464, 469 (2010), aff’d by King v. Shinseki, 430 F. App’x 890 (Fed. Cir. 2011). Akers v. Shinseki  supra

Rodriquez v. West

Tetro v. Principi

Sagainza_90-760

King v. Shinseki (Fed Cir)

So, this is where we are this week with informal claims. As I mentioned the book is still being written. Vicki Akers’ decision is not  a true rendition of an informal claim no matter how she and Mr. Carpenter try to characterize it. It is an abysmal attempt to put lipstick on an F-9, powder its nose and send it out as a beleaguered attempt at a judicial redo rather than a late filing. In any event, Mrs. Akers, under this last gasp reopening theory, would be entitled to ten months of DIC from September 16th, 2003, not all the way back to her original filing date of February 2002. I just don’t see how Mr. Carpenter could see any daylight under this door.

Miz Vickie goes to DC