Lacoste v. Wilkie

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JORGE LACOSTE, SR.,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2018-1670
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1666, Senior Judge William P.
Greene, Jr.
______________________

Decided: June 6, 2019
______________________

CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, ar-
gued for claimant-appellant.

SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN
MISHA PREHEIM; MEGHAN ALPHONSO, BRIAN D. GRIFFIN,
2 LACOSTE v. WILKIE

JONATHAN KRISCH, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________

Before LOURIE, MOORE, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Jorge Lacoste Sr. served in the United States Air Force.
In 1972, he filed an application with the Veterans Admin-
istration (now the Department of Veterans Affairs, both
VA) for disability benefits, expressly reciting a number of
physical conditions, such as an ulcer. VA granted benefits
for several of those disabilities. Several decades later, in
2010, he filed an application for disability benefits for Par-
kinson’s disease and, in 2011, added a request for disability
benefits for a mental-health condition. VA eventually
granted benefits for both Parkinson’s disease and a mental-
health condition, but when Mr. Lacoste argued for an effec-
tive date for the mental-health-condition benefits reaching
back to his 1972 application, VA disagreed. Specifically,
VA’s Board of Veterans’ Appeals concluded that, under the
regulation then governing informal claims, Mr. Lacoste’s
1972 application did not adequately convey that he was
seeking benefits for a mental-health condition. The Court
of Appeals for Veterans Claims (Veterans Court) affirmed,
and Mr. Lacoste appealed. We conclude that, given the ar-
guments presented to the Veterans Court and in this ap-
peal, the Veterans Court did not apply an incorrect legal
standard in reading Mr. Lacoste’s 1972 application. Ac-
cordingly, we affirm the Veterans Court’s decision.
I
Mr. Lacoste began serving in the Air Force in Novem-
ber 1968. His service medical records from the Air Force
included diagnoses of acute depressive reaction, inade-
quate personality, passive aggressive personality, and a
duodenal ulcer. One such record described his recurrent
epigastric pain as a “psycho-physiologic gut reaction.”
LACOSTE v. WILKIE 3

J.A. 402. On April 24, 1972, he was discharged from the
Air Force.
On May 31, 1972, Mr. Lacoste filed an application for
disability benefits with VA, using a VA-supplied form. In
the field for “nature of sickness, diseases or injuries or in-
juries for which claim is made,” he listed an ulcer, pityria-
sis rosea, hemorrhoids, a cyst on his left foot, and
gonorrhea. J.A. 420. He named Goodfellow Air Force Base,
Hakata Air Force Base, and Clark Air Force Base as the
facilities where he received treatment, and he listed 1969
through 1972 as the years of his treatment, but he did not
refer to or specifically request that VA obtain any particu-
lar medical records.
In November 1972, as relevant here, the VA regional
office (RO) found that he had a service-connected duodenal
ulcer and assigned a 0% disability rating effective April 25,
1972, the day after he was discharged from the Air Force.
Under a governing regulation, that was the proper effective
date because his claim was filed within a year of his dis-
charge. See 38 C.F.R. § 3.400(b)(2)(i) (1972). The RO did
not discuss a mood disorder or any other mental-health
condition. Mr. Lacoste did not appeal.
Nearly four decades later, on February 9, 2010, Mr. La-
coste filed a claim for disability benefits for Parkinson’s dis-
ease. On October 3, 2010, the RO found no service
connection for Parkinson’s disease because, according to
the RO, Mr. Lacoste’s service treatment records contained
no indication of treatment for symptoms of such a condi-
tion. Mr. Lacoste filed a notice of disagreement with the
RO’s decision on October 24, 2011, now represented by
counsel. He argued that, among other things, “[t]he medi-
cal evidence in this case indicates that the Veteran suffers
from current diagnoses of mental health conditions, and
the service medical records . . . indicate treatment for men-
tal health condition(s) during his military service.” J.A.
338. Accordingly, he contended that the RO “failed to
4 LACOSTE v. WILKIE

consider the Veteran’s mental health condition as service-
connected, either under a theory of direct service-connec-
tion, or under a theory of secondary service-connection[,]
i.e., caused by or secondary to the Veteran’s Parkinson’s
Disease.” Id.
The RO found in May 2013 that Mr. Lacoste had a ser-
vice-connected mood disorder, which the RO labeled as a
claimed but unspecified mental health condition, and for
which the RO assigned a 100% disability rating effective
October 24, 2011, the date of Mr. Lacoste’s notice of disa-
greement with the RO’s October 2010 decision. In June
2013, Mr. Lacoste filed a notice of disagreement with the
RO’s May 2013 decision, asserting that, among other
things, he was entitled to an earlier effective date for his
mood-disorder compensation. He first argued that a claim
for his mood disorder was raised on February 10, 2010, the
date of his claim for Parkinson’s disease. He further con-
tended that VA should grant an even earlier effective date
for mood-disorder benefits—back to “the date of the Vet-
eran’s discharge from military service,” based on the 1972
application—because the service medical records consid-
ered by VA in adjudicating his 1972 claim also reflected
treatment for a mental health condition. J.A. 291. 1
In November 2014, the Board found that Mr. Lacoste’s
Parkinson’s disease was connected to his Air Force service
and assigned a 30% disability rating for that condition,

1 Although Mr. Lacoste identified October 1, 1971, as
the date of his discharge, the RO noted in its statement of
the case responding to Mr. Lacoste’s notice of disagreement
that Mr. Lacoste was still on active duty on that day.
“[H]ad a claim for a mental health condition been reasona-
bly raised as part of that original claim and subsequently
granted,” the RO added, “the earliest date of grant of ben-
efits would have been April 25, 1972, the day following sep-
aration from service.” J.A. 260.
LACOSTE v. WILKIE 5

effective February 9, 2010. The Board remanded to the RO
for a VA compensation examination to assess the severity
of Mr. Lacoste’s Parkinson’s disease. It also remanded the
issue of the proper effective date for Mr. Lacoste’s mood-
disorder disability compensation, since resolution of that
issue “is dependent on the results of his VA compensation
examination for his Parkinson’s disease.” J.A. 172.
During the ensuing examination on remand, the exam-
iner diagnosed Mr. Lacoste with depressive disorder due to
Parkinson’s disease and stated that “[t]here is no distin-
guishing between his previously rated service-connected
mood disorder and his Parkinson’s, they are inextricable.”
J.A. 145. The RO issued a supplemental statement of the
case in September 2015 in which it denied an effective date
earlier than October 24, 2011, for Mr. Lacoste’s mood-dis-
order compensation. Mr. Lacoste filed a notice of disagree-
ment with the RO’s decision in December 2015.
In 2016, the Board granted an effective date of Febru-
ary 9, 2010, for Mr. Lacoste’s mood-disorder compensation,
but it declined to grant an even earlier effective date. It
relied on 38 C.F.R. § 3.155, a regulation governing informal
claims, which, in the version applicable to this matter, pro-
vided that “[a]ny communication or action, indicating an
intent to apply for one or more benefits under the laws ad-
ministered by [VA], . . . may be considered an informal
claim” but that “[s]uch informal claim must identify the
benefit sought.” 38 C.F.R. § 3.155(a) (1972). 2 Under that

2 There is no dispute that the 1972 version of § 3.155
applies to this appeal. The 1972 regulations also contained
a provision stating that “[a] specific claim in the form pre-
scribed by the Administrator [of VA] must be filed in order
for benefits to be paid to any individual under the laws ad-
ministered by [VA].” 38 C.F.R. § 3.151 (1972). The regula-
tions in 38 C.F.R. pt. 3 (§ 3.1 et seq.) have evolved over time,
but the “identify the benefit sought” language remained
6 LACOSTE v. WILKIE

standard, the Board found that, “as the Veteran’s mood dis-
order is related to his Parkinson’s disease, the February 9,
2010 claim reasonably encompassed a claim additionally
for service connection for a psychiatric disorder.” J.A. 84.
In denying an even earlier effective date, however, it stated
that “the mere mention of a condition in a medical record,
alone, cannot be construed as a claim for service connec-
tion.” J.A. 96. The Board observed that “[t]here is no indi-
cation in that initial application that he additionally
sought or claimed entitlement to service connection for any
psychiatric disorder,” since his “initial May 1972 claim does
not address any psychiatric-related problems.” J.A. 92, 97.
Accordingly, the Board found that Mr. Lacoste’s May 1972
application did not present an informal claim for a mood
disorder.
Mr. Lacoste appealed the denial of an earlier effective
date to the Veterans Court, which affirmed the Board’s de-
cision in December 2017. The court focused on Mr. La-
coste’s argument based on the medical-examination
records—which in this case were not from medical exami-
nations conducted by VA itself, but by military medical-ser-
vice providers. The court concluded that “[s]tatements
made during medical examinations, or on medical forms,
are generally insufficient to demonstrate” an intent to ap-
ply for benefits to compensate for a disability related to a
particular condition, and such an intent is required in or-
der for VA to find an informal claim for benefits for such a
disability. J.A. 5. Thus, despite “favorable evidence sug-
gesting that his ulcer was related to a mental condition,”

until 2015. In that year, VA amended a number of regula-
tions, including § 3.155, to replace the “informal claim” con-
cept with an “intent to file a claim” concept. See 38 C.F.R.
§§ 3.155(b), 3.160(a) (2015); Veterans Justice Grp., LLC v.
Sec’y of Veterans Affairs, 818 F.3d 1336, 1350–52 (Fed. Cir.
2016) (upholding new regulations).
LACOSTE v. WILKIE 7

the Veterans Court determined that Mr. Lacoste had not
“demonstrate[d] how that . . . evidence constitutes an in-
tent on his part to seek benefits for a mental condition.”
J.A. 6. It therefore held that “the Board properly found
that the evidence of record at th[e] time” of Mr. Lacoste’s
May 1972 application “did not establish any intent to seek
VA benefits for a mental condition.” Id.
Mr. Lacoste timely appealed to this court. We have ju-
risdiction to consider legal issues raised by the Veterans
Court’s decision, such as whether the Veterans Court mis-
interpreted § 3.155(a) (1972), related provisions, and our
previous decisions interpreting such provisions. See 38
U.S.C. § 7292(d)(1).
II
A
We have said that, under the pre-2015 language of
§ 3.155(a), “any communication can qualify as an informal
claim if it: (1) is in writing; (2) indicates an intent to apply
for veterans’ benefits; and (3) identifies the particular ben-
efits sought.” Reeves v. Shinseki, 682 F.3d 988, 993 (Fed.
Cir. 2012); see also Rodriguez v. West, 189 F.3d 1351, 1353–
54 (Fed. Cir. 1999). Specifically, under § 3.155(a) (1972),
“[s]uch informal claim must identify the benefit sought.”
Mr. Lacoste argues, based solely on case law, that the Vet-
erans Court relied on too restrictive a legal standard when
reviewing his formal application for benefits to determine
whether it should be read as including an informal claim
for benefits for a mental-health condition.
We limit ourselves to the case-law argument Mr. La-
coste makes. For at least two decades, the Veterans Court
has treated the “benefit sought” language in pre-2015 ver-
sions of § 3.155(a) as not merely requiring identification of
the type of benefit sought—e.g., pension, 38 C.F.R. § 3.3
(1972); disability or death compensation, id. § 3.4; or de-
pendency and indemnity compensation, id. § 3.5—but as
8 LACOSTE v. WILKIE

referring, in the case of disability compensation, to the con-
dition, symptom, or the like underlying the asserted disa-
bility. See, e.g., Brokowski v. Shinseki, 23 Vet. App. 79, 86
(2009); Brannon v. West, 12 Vet. App. 32, 34–35 (1998). 3 A
number of our decisions, some of them mentioned infra, at
least assume such a reading of the pre-2015 language of
§ 3.155(a). And Mr. Lacoste has not meaningfully devel-
oped, before the Veterans Court or in this appeal, any ar-
gument challenging the premise that the “benefit sought”
language requires more than identification of the general
type of benefit sought (for example, disability compensa-
tion rather than pension).
As a result, we have before us no analysis—from either
party—of the statutory or regulatory textual basis for the
premise, considering the language in the context of sur-
rounding provisions when enacted or promulgated or as
those provisions changed over time. For example, we have
no discussion of how the premise fits with statutory provi-
sions such as 38 U.S.C. §§ 5100–5103, 5107, and 5110, or
how it fits with the full language of § 3.155 (1972), with the
overall structure of 38 C.F.R. pt. 3 (1972), and particular
provisions such as the definition of “claim” in § 3.1(p)
(1972). We also have before us no identification and anal-
ysis of any precedential decisions of this court whose hold-
ings may have actually depended on reading the pre-2015

3 Such a distinction is recognized in the context of an
“intent to file a claim” under the 2015 version of § 3.155,
which states that “[a]n intent to file a claim must identify
the general benefit (e.g., compensation, pension), but need
not identify the specific benefit claimed or any medical con-
dition(s) on which the claim is based.” 38 C.F.R.
§ 3.155(b)(2) (2015). “Upon receipt of an intent to file a
claim,” the Secretary must give notice of “the information
necessary to complete the appropriate application form
prescribed by the Secretary.” Id. § 3.155(b)(3).
LACOSTE v. WILKIE 9

language of § 3.155(a) to require greater specificity than an
identification that disability compensation (rather than,
say, a pension) is being sought. 4
Thus, we proceed here on the unchallenged premise
that the pre-2015 version of § 3.155(a) is specific in that
sense, at least in the context of interpreting a formal appli-
cation, and we address Mr. Lacoste’s contention that, un-
der the relevant precedents, the Veterans Court applied too
restrictive a legal standard. We do not decide whether that
premise is supported by the text, structure, and history of
any relevant statutes and regulations or any decisions of
this court. We also note that, in this case, the question is
only how to read Mr. Lacoste’s formal application: it is a
formal application that is asserted to have presented the
mental-health claim at issue. We do not address whether
any statutes and regulations other than § 3.155(a) (1972)
may govern or affect the answer to the question of how to
interpret formal applications. For instance, 38 C.F.R.

4 The government has cited MacPhee v. Nicholson,
459 F.3d 1323 (Fed. Cir. 2006), but while the Veterans
Court in that case had concluded that “the medical reports
at issue were not sufficient to state an original informal
claim under § 3.155(a),” we were not presented with a chal-
lenge to, and so did not decide, the correctness of that con-
clusion about the meaning of § 3.155(a). See id. at 1326.
We decided that medical records could not constitute an in-
formal claim under a different regulation, 38 C.F.R.
§ 3.157(b)(1) (2000), unless service connection had been
previously claimed or established for the disability dis-
closed in such records. Id. at 1326–28. We relied on lan-
guage in § 3.157(b)(1) (2000) that expressly referred to “a
disability for which service-connection has previously been
established.” Id. at 1327 (emphasis added). The pre-2015
version of § 3.155(a) contains no such express reference to
a particular disability.
10 LACOSTE v. WILKIE

§ 3.159(a)(3)—though not in effect until 2000, see 66 Fed.
Reg. 45,620 (Aug. 29, 2001), after Mr. Lacoste filed his May
1972 application—has long contained language requiring a
“[s]ubstantially complete application” to “contain[] . . . the
benefit claimed and any medical condition(s) on which it is
based.” 38 C.F.R. § 3.159(a)(3) (emphasis added); see also
Brokowski, 23 Vet. App. at 84–89 (relying on § 3.155(a) in
conjunction with § 3.159(a)(3)).
B
On the assumption described above, and the limited
scope of the arguments presented, we affirm. We have ex-
plained on several occasions that pro se filings must be
read liberally to determine what claims they contain.
“[W]ith respect to all pro se pleadings,” we have noted, VA
must “give a sympathetic reading to the veteran’s filings by
‘determin[ing] all potential claims raised by the evidence,
applying all relevant laws and regulations.’” Szemraj v.
Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting
Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001));
see also Moody, 360 F.3d at 1310; Harris v. Shinseki, 704
F.3d 946, 948 (Fed. Cir. 2013). But those cases are not in-
consistent with a standard under which an application will
not be read to include an informal claim for compensation
for a problem unless the application, sympathetically read,
directly or indirectly indicates an intent to seek benefits
based on that problem. On the premise we have identified
above about the scope of § 3.155 (1972), which was not chal-
lenged in this case, and where the formal application is the
sole document asserted to contain the claim at issue, such
an intent standard properly implements the language of
“benefit sought” (emphasis added).
Here, the Veterans Court acknowledged Mr. Lacoste’s
argument that his 1972 application, which included an ex-
press claim for an ulcer, should have been sympathetically
read to include a claim for a mental-health condition. In
rejecting that argument, however, it noted that neither the
LACOSTE v. WILKIE 11

application’s recitation of an ulcer, nor the indication in
Mr. Lacoste’s service medical records—to which the appli-
cation made no reference—that his ulcer was related to a
mental-health condition, showed an intent to seek benefits
for a mental-health condition. We see no legal error in the
Veterans Court’s decision, leaving for another day issues
about the interpretation of the pre-2015 language of
§ 3.155(a) not raised here. 5
III
For the foregoing reasons, we affirm the Veterans
Court’s decision.
No costs.
AFFIRMED

5 The government does not ask us to affirm the Vet-
erans Court’s decision on any ground other than that the
decision employed a correct legal standard in deciding that
the May 1972 application contained no claim for compen-
sation for a mental-health condition. For that reason, and
because we agree with the government on that point, we
need not and do not consider Mr. Lacoste’s contention that
the Veterans Court’s decision contains a legally erroneous
ruling about whether, if the May 1972 application con-
tained such a claim, the RO implicitly denied it in late
1972.