Akers v. SHINSEKI

United States Court of Appeals
for the Federal Circuit
__________________________

VICKIE H. AKERS,
Claimant-Appellant,

v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2011-7018
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in 08-3983, Judge Robert N. Davis.
__________________________

Decided: March 23, 2012
__________________________

KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.

JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, Assistant Director. Of counsel on the brief were
DAVID J. BARRANS, Deputy Assistant General Counsel,
2 AKERS v. DVA

and BRIAN D. GRIFFIN, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
__________________________

Before NEWMAN, LOURIE, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN.

Concurring opinion filed by Circuit Judge LOURIE.
LINN, Circuit Judge.

Vickie H. Akers (“Akers”) appeals from a decision of
the Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision of the Board of Veterans’
Appeals (“Board”) refusing to grant Akers an earlier
effective date for dependency and indemnity compensa-
tion benefits. See Akers v. Shinseki, No. 08-3983, 2010
WL 3452490 (Vet. App. Aug. 31, 2010) (“Veterans Court
Op.”), reconsideration denied by Akers v. Shinseki, No. 08-
3983, 2010 WL 3759875 (Vet. App. Sept. 27, 2010).
Because the Veterans Court committed no reversible legal
error in its affirmance of the Board’s decision, this court
affirms.

I. BACKGROUND

Akers is the widow of James D. Akers (“Mr. Akers”), a
veteran who died on February 12, 2002. Mr. Akers had
service connected post-traumatic stress disorder rated at
100% disabling at the time of his death. Akers applied for
dependency and indemnity compensation benefits in
February 2002. In July 2002, Akers’s claim was denied.
In February 2003, Akers filed a Notice of Disagreement
and on May 9, 2003, the regional office of the United
States Department of Veterans Affairs (“DVA”) mailed
Akers a Statement of the Case in which it informed Akers
that it was continuing to deny her claim and that she
AKERS v. DVA 3
could appeal its decision within sixty days. On September
16, 2003, Akers filed an untimely appeal using VA Form
9, entitled “Appeal to the Board of Veterans’ Appeals.”
J.A. 55. Akers checked the box on Form 9 corresponding
to the statement “I want to appeal all of the issues listed
on the Statement of the Case.” Id. On October 3, 2003,
DVA informed Akers that her appeal was untimely and
that the denial of her claim had become final. DVA
informed Akers that her claim could only be reopened if
she submitted new and material evidence.

In July 2004, DVA received Akers’s submission of a
Statement in Support of Claim, along with supporting
evidence, which stated that Akers wished to reopen her
claim for service connection of Mr. Akers’s death. DVA
initially denied Akers’s request to reopen her claim on the
ground that Akers had not submitted new and material
evidence. Akers appealed, and submitted additional
evidence on the basis of which her claim was eventually
reopened and granted effective from July 2004, when
DVA first received Akers’s request to reopen her claim.

Akers filed a Notice of Disagreement seeking to make
her benefits effective as of the date of Mr. Akers’s death.
DVA denied Akers’s request for an earlier effective date
and Akers appealed to the Board. The Board found that
Akers’s Form 9 submission was a substantive appeal and
that Akers did not attempt to reopen her claim until July
2004. The Board found “no evidence revealing that
[Akers] indicated an intent to apply for [dependency and
indemnity compensation] benefits between the prior final
disallowance of the claim in June 2002 and the date of the
receipt of the claim to reopen on July 21, 2004.” No. 07-
21 566, slip op. at 7 (Bd. Vet. App. Sept. 12, 2008).

Akers appealed the Board’s decision to the Veterans
Court. The Veterans Court affirmed, quoting the Board’s
fact finding set forth above, and further reciting that:
4 AKERS v. DVA

The Board [stated]: “In fact, the appellant con-
cede[d] during her hearing that she did not file a
claim to reopen until July 2004.” Id.; see also R.
at 19-20 (November 2007 hearing testimony in
which Mrs. Akers, when asked “Was there any
claim filed [] prior to July 21, 2004, other than the
original claim that was denied?” responded, “No,
Ma’am, no.”). The Board concluded, “As the re-
cord contains no such communication or action
from the appellant until July 21, 2004, there is no
factual or legal basis to assign an earlier effective
date.” Id.

Veterans Court Op., at *2. Of particular relevance to this
appeal, the Veterans Court also stated that:

While the Board did not specifically discuss
whether the September 16, 2003, communication
constituted a claim to reopen, its statement of
reasons and bases was adequate nonetheless. In
order for the September document to have consti-
tuted a claim to reopen, it would have needed ac-
companying new and material evidence. See 38
C.F.R. § 3.156(a). . . . Mrs. Akers did not attach
any evidence to the September submission. It
therefore would have been impossible for the
Board to reopen the claim based on the September
16, 2003, communication. Because of this impos-
sibility, it was not error for the Board to fail to
discuss whether the September communication
constituted a claim to reopen.

Id. (emphasis added).

Akers moved for reconsideration and the Veterans
Court denied her motion. Akers v. Shinseki, No. 08-3983,
2010 WL 3759875 (Sept. 27, 2010). Akers timely ap-
AKERS v. DVA 5
pealed and asserts that this court has jurisdiction pursu-
ant to 38 U.S.C. § 7292.

II. DISCUSSION

A. Standard of Review

“This court reviews legal determinations of the Veter-
ans Court de novo. If the decision of the Veterans Court
is not in accordance with law, this court has authority to
modify, reverse, or remand the case as appropriate.”
Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.
2009) (citations omitted).

B. Analysis

Before this court, Akers argues that the Veterans
Court misinterpreted 38 C.F.R. § 3.156(a) by creating a
requirement that a request to reopen a previously adjudi-
cated claim must itself be accompanied by new and mate-
rial evidence. According to Akers, neither the regulation,
nor the statute which it implements, 38 U.S.C. § 5108,
requires that new and material evidence actually accom-
pany a claim to reopen. Rather, Akers argues, both
provisions require only that new and material evidence be
submitted at some time before the request to reopen can
be granted.

Akers also argues that the Veterans Court committed
a second error of law by failing to address Akers’s conten-
tion 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
6 AKERS v. DVA

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, accord-
ing 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 responds that Akers’s appeal raises factual is-
sues beyond this court’s jurisdiction. Specifically, DVA
argues that Akers asks this court to disturb the Board’s
factual determination, as affirmed by the Veterans Court,
that Akers never expressed an intent to apply for benefits
between the final denial of her original claim and her July
2004 request to reopen her claim. DVA also argues that
the Veterans Court never purported to interpret either
section 3.155 or 3.156 in its opinion. According to DVA,
Akers’s argument boils down to an assertion that the
Veterans Court failed to recite the catechism that the
Board’s factual determination that Akers never expressed
the requisite intent (including in her Form 9) was not
clearly erroneous. Thus, according to DVA, this appeal
should be dismissed for lack of jurisdiction.

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 categori-
cal 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.

This appeal therefore requires us to decide: (1)
whether Akers has presented an issue of law which this
AKERS v. DVA 7
court has the authority to review; and, if so, (2) whether
the Veterans Court correctly interpreted 38 U.S.C. § 5108
and 38 C.F.R. § 3.156 to preclude the treatment of Akers’s
untimely appeal as an informal claim to reopen her previ-
ously adjudicated claim for purposes of determining an
effective date of benefits.

1. This Court’s Authority

We begin with DVA’s challenge to this court’s author-
ity to review Akers’s appeal. This court’s power to review
decisions of the Veterans Court is limited. 38 U.S.C.
§ 7292(d)(2) states that “[e]xcept to the extent that an
appeal under this chapter presents a constitutional issue,
[this court] may not 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.” See also Elling-
ton v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008) (ex-
plaining with regard to an alleged informal claim that
“the interpretation of the contents of a claim for benefits
[is] a factual issue over which we [do] not have jurisdic-
tion.” (citation omitted)); Conway v. Principi, 353 F.3d
1369, 1372 (Fed. Cir. 2004) (“[W]hile we can review ques-
tions of law, we cannot review applications of law to
fact.”).

While this court agrees with DVA that the Veterans
Court recited the Board’s fact finding in its own opinion,
and that such fact finding is beyond this court’s jurisdic-
tion, it is apparent that the Veterans Court based its
holding not exclusively on that fact finding, but also on its
interpretation of 38 C.F.R. § 3.156 and implicitly the
statutory provision it implements, 38 U.S.C. § 5108. The
Veterans Court effectively interpreted those provisions as
requiring that an informal claim to reopen a previously
decided claim be accompanied by new and material evi-
dence in order to establish an effective date of benefits.
8 AKERS v. DVA

According to the Veterans Court, “[i]n order for the Sep-
tember document to have constituted a claim to reopen, it
would have needed accompanying new and material
evidence.” Veterans Court Op., at *2. Akers is therefore
correct that this court has the authority to review the
Veterans Court’s interpretation of 38 U.S.C. § 5108 and
38 C.F.R. § 3.156.

2. Effective Date

Whether Akers is entitled to an earlier effective date
of benefits depends on whether her September 2003 Form
9 appeal qualified as an informal application to reopen
her previously adjudicated claim and whether such appli-
cation must be accompanied by or at least proffer new and
material evidence.

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
AKERS v. DVA 9
claim.” King v. Shinseki, 23 Vet. App. 464, 469 (2010),
aff’d by King v. Shinseki, 430 F. App’x 890 (Fed. Cir.
2011).

38 U.S.C. § 5108 states that “[i]f 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.”
The implementing regulation, 38 C.F.R. § 3.156(a), states
in relevant part that “[a] claimant may reopen a finally
adjudicated claim by submitting new and material evi-
dence.” Both the statute and the regulation expressly and
unambiguously require that new and material evidence
be obtained for a claim to be reopened.

Benefits awarded pursuant to a reopened claim are
generally effective from the date of the application to
reopen. 38 U.S.C. § 5110(a) provides that:

Unless specifically provided otherwise in this
chapter, the effective date of an award based on
. . . a claim reopened after final adjudication . . .
shall be fixed in accordance with the facts found,
but shall not be earlier than the date of receipt of
an application therefor.

Likewise, 38 C.F.R. § 3.400 provides that:

Except as otherwise provided, the effective date of
an evaluation and award of pension, compensa-
tion or dependency and indemnity compensation
based on . . . a claim reopened after final disallow-
ance . . . will be the date of receipt of the claim or
the date entitlement arose, whichever is the later.

See also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir.
2009) (“The earliest effective date for an award based on a
veteran’s request to reopen a final decision based on new
10 AKERS v. DVA

and material evidence is generally the date that the
application to reopen was filed.”). This general rule is
clear but does not answer the question of whether new
and material evidence must be submitted, or at least
proffered, at the same time the application is filed.

38 C.F.R. § 3.156(b), entitled “[p]ending claim,” helps
answer that question and provides guidance on the rela-
tionship between the effective date of benefits and the
submission of new and material evidence. That provision
states that “[n]ew and material evidence received prior to
the expiration of the appeal period, or prior to the appel-
late decision if a timely appeal has been filed . . . will be
considered as having been filed in connection with the
claim which was pending at the beginning of the appeal
period.” This court has acknowledged that sec-
tion 3.156(b) applies to claims to reopen previously de-
cided claims. See Jackson v. Nicholson, 449 F.3d 1204,
1207-08 (Fed. Cir. 2006) (explaining that “if a claim is
reopened based on new and material evidence presented
before an ‘appellate decision’ the effective date of the
claim will be the date of the original request to re-
open . . .” and further explaining that “[i]f a case is re-
manded to the VA by either the Veterans Court or this
court for further adjudication and the issuance of a new
Board decision, and new and material evidence has been
submitted while the case is still on appeal in the court
system, the effective date of the claim may be measured
by the date on which the request to reopen was first filed
. . . [because u]nder these circumstances, the original
proceeding has not been terminated”). Under this regula-
tion, it is evident that the requirements for an application
to reopen a claim are not the same as the requirements to
actually reopen the claim.

This conclusion is also evident from other important
provisions within the pro-claimant framework of veterans’
benefits. For instance, 38 U.S.C. § 5103(a) provides in
AKERS v. DVA 11
relevant part that “upon receipt of a complete or substan-
tially complete application, the Secretary shall notify the
claimant . . . of any information, and any medical or lay
evidence, not previously provided to the Secretary that is
necessary to substantiate the claim.” See also 38 C.F.R.
§ 3.159(b)(1). This duty includes the duty to explain what
“new and material evidence” means. Significantly, this
duty only arises after DVA receives a claim. See Kent v.
Nicholson, 20 Vet. App. 1, 9 (2006) (explaining that the
duty to notify includes explaining to the veteran seeking
to reopen the claim the precise nature of the requisite
“new” and “material” evidence because these terms “have
specific, technical meanings that are not commonly known
to VA claimants”).

Likewise, while 38 U.S.C. § 5103A “does not require
[DVA] to assist claimants attempting to reopen previously
disallowed claims absent the provision of ‘new and mate-
rial evidence’ . . . [DVA] has chosen to assist claimants
attempting to reopen in limited circumstances” to wit, in
obtaining necessary records. Paralyzed Veterans of Am. v.
Sec’y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir.
2003) (citing 38 C.F.R. § 3.159(c)(1)-(3)). Both of these
duties support the conclusions that an application to
reopen does not necessarily require the simultaneous
submission or proffer of new and material evidence and
that the effective date of an application to reopen is not
tied to the date when such evidence is actually submitted.
Indeed, in this very case, DVA recognized Akers’s 2004
submission as a request to reopen a previously adjudi-
cated claim and accordingly applied 38 U.S.C. § 5110(a)
and 38 C.F.R. § 3.400 to award Akers an effective date
based on the filing of that request, notwithstanding that
when filed it contained no new and material evidence. In
its January 2005 rating decision, the VA expressly stated:
“We received a request to reopen a previous claim on July
22, 2004. Based on a review of the evidence . . . we have
made the following decision on your claim . . . . The claim
12 AKERS v. DVA

for service connection for the cause of death remains
denied because the evidence is not new and material.” J.A.
61 (emphasis added). This record shows that DVA under-
stood that applying to reopen a claim is one thing and
actually reopening it is something else.

Finally, it is important to note that permitting the
perfecting of an informal claim that evinces an intent to
reopen by the subsequent filing of new and material
evidence does not give any special or undeserved advan-
tage to veterans who successfully reopen their claims and
are ultimately awarded benefits based on “the date of
receipt of the claim” under 38 C.F.R. § 3.400. A veteran
who relies on the “receipt of the claim” prong of sec-
tion 3.400, rather than the “date entitlement arose”
prong, by definition had an entitlement to benefits that
existed before the date of the relevant application to
reopen. There is no injustice if such claimants are
awarded the effective date when they first asked DVA to
reconsider its prior decision. And because claims that are
not ultimately supported by new and material evidence
will be denied in due course, there is no potential for
harm to the government.

For the above reasons, it is apparent that the re-
quirements to recognize an informal request to reopen a
claim, and the requirements to grant such a request, are
different: While actually reopening a claim requires new
and material evidence, an informal request to do so does
not. 1 Even though such an informal claim would ulti-

The Concurrence—while first contending that “there
1
is no application to reopen” in the absence of new and
material evidence—concedes that an informal claim to
reopen does not need to include new and material evi-
dence but “must, at minimum, indicate an intent to
submit the required new and material evidence.” Concur-
rence 2. But there is no principled difference between an
informal application that states, “I want to reopen my
claim” and one that states, “I want to reopen my claim
AKERS v. DVA 13
mately be denied if no new and material evidence were
forthcoming, an informal claim to reopen a previously
decided claim can be accepted for purposes of establishing
an effective date of benefits before the requisite new and
material evidence has actually been submitted. Accord-
ingly, this court holds that for purposes of establishing an
effective date of benefits ultimately granted pursuant to a
reopened claim, an otherwise proper informal request to
reopen such a claim need not be accompanied by the
simultaneous submission or proffer of new and material
evidence.

In this case, the Veterans Court erred by importing
the new and material evidence requirement from 38
U.S.C. § 5108 and 38 C.F.R. § 3.156(a) into the require-
ments for filing an informal claim to reopen a previously
decided claim under 38 C.F.R. § 3.155(a) and (c). This
error, however, was harmless. See Szemraj v. Principi,
357 F.3d 1370, 1375 (Fed. Cir. 2004). While this court
cannot review the factual sufficiency of evidence in ap-
peals from the Veterans Court, we have jurisdiction to
determine as a matter of law that there is a total lack of
evidence to support a particular conclusion. See Waltzer
v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006).
Akers’s Form 9 appeal contained no evidence of any kind
showing an intent to reopen her previously decided claim.
The Form 9 was therefore legally insufficient evidence of
the requisite intent to reopen. Thus, the Veterans Court’s
imposition of an incorrect evidentiary burden on informal
claimants was harmless error. Akers’s remaining argu-
ments have been considered and are without merit.

based on new and material evidence.” Nothing in the
regulation requires that an informal claim evince any-
thing more than an “intent to apply for one or more
benefits.” The regulation does not purport to require a
statement of the specific basis of the claim, at least for
purposes of establishing an effective date.
14 AKERS v. DVA

III. CONCLUSION

For the foregoing reasons, the decision of the Veterans
Court is affirmed.

AFFIRMED

COSTS

Each party shall bear its own costs.
 United States Court of Appeals
for the Federal Circuit
__________________________

VICKIE H. AKERS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2011-7018
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in 08-3983, Judge Robert N. Davis.
__________________________

LOURIE, Circuit Judge, concurring.
Although I agree with the result reached in this case
by the majority, I disagree with its reasoning, particularly
its interpretation of 38 C.F.R. § 3.155. As the majority
correctly notes, 38 C.F.R. § 3.155(c) permits a veteran to
make an informal claim to reopen a previously decided
claim, and there is no explicit requirement in that provi-
sion to present new and material evidence. However,
both 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) plainly
condition reopening on the submission of new and mate-
rial evidence. As the statute provides, “If new and mate-
rial evidence is presented . . . the Secretary shall reopen
the claim . . . ,” 38 U.S.C. § 5108 (emphasis added), and as
the regulation states, “[a] claimant may reopen a finally
AKERS v. DVA 2

adjudicated claim by submitting new and material evi-
dence,” 38 C.F.R. § 3.156(a) (emphasis added). The word
“if” is conditional, and the word “by” is procedural. Unless
the “if” occurs and the “by” is effected—in other words,
unless new and material evidence is submitted—there is
no application to reopen. New and material evidence,
then, is the sine qua non of an application to reopen; any
legally sufficient application to reopen requires new and
material evidence.
In that respect, an informal claim is no different. Be-
cause an informal claim under 38 C.F.R. § 3.155(a) must
“indicat[e] an intent to apply for one or more benefits,”
and because applying to reopen requires submitting new
and material evidence, an “informal request for . . . re-
opening” under § 3.155(c) must, at minimum, indicate an
intent to submit the required new and material evidence.
Thus, the Veterans Court correctly imported a new
and material evidence requirement into the requirements
for an informal claim to reopen. The majority’s interpre-
tation of § 3.155, in contrast, divorces the new and mate-
rial evidence from the application to reopen, relegating
the essential statutory requirement of new and material
evidence to a mere afterthought.
My understanding of 38 C.F.R. § 3.155 is consistent
with the other relevant statutes, including the effective
date provision. Under 38 U.S.C. § 5110, “the effective
date of an award based on . . . a claim reopened after final
adjudication . . . shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of
application therefor.” An application to reopen requires
new and material evidence, so the effective date of an
informal claim to reopen cannot be earlier than the date
that a veteran indicates an intent to apply, that is, an
intent to submit the required new and material evidence.
3 AKERS v. DVA

In the present case, the handling of Akers’s claim by
the Board and the Veterans Court constituted a correct
application of 38 C.F.R. § 3.155. Because Akers’s VA
Form 9 did not indicate any intent to reopen by submit-
ting new and material evidence, the Form 9 could not, as
a matter of law, constitute an informal claim to reopen.
Akers’s July 2004 submission was another matter, how-
ever. In that submission Akers not only stated that she
wished to reopen her previously decided claim, but, criti-
cally, she also stated her intent to submit new and mate-
rial evidence. Although the evidence submitted by Akers
in July 2004 was ultimately deemed insufficient, in Feb-
ruary 2006 she provided new and material evidence
substantiating her claim. As the Veterans Court af-
firmed, Akers’s successful claim to reopen thus had an
effective date of July 2004—the date she was found to
have indicated her intent to submit new and material
evidence to reopen her claim. We lack jurisdiction to
review questions of fact or the application of law to fact.
However, because Akers’s Form 9 was legally deficient
under 38 C.F.R. § 3.155 by the reasoning I have set forth
above, affirmance is the correct result in this case.