Brokowski 3 Part Test:

[broncovet]

I have wondered why sometimes people seem to get their informal claims called an informal claim, while other times it seems like the VA says that just because you visit the VA doc, does not necessarily mean you want to apply for that benefit. The Court of Appeals for Veterans Claims narrowly interprets the VA duty to fully and sympathetically develop the veterans claim to its optimum by determining all potential claims raised by the evidence. whether a claim for service connection for condition X requires VA to adjudicate a claim for service connection for condition Y (as well as condition X) turns on what the veteran or representative said during the time that the claim for condition X was being considered by VA. As the CAVC put it in Brokowski v. Shinseki the VA has no obligation to adjudicate a claim for service connection for condition Y unless the record . . . satisfie all three requirements for an informal claim for disability compensation for [condition Y]. The Brokowski test: (in my own words) 1. The Claim must be written. Telling the doc something means nothing unless he wrote it in your records. 2. There must be an "intent" for the Veteran to apply for benefits. 3. The Veteran must "specify the benefit sought". I will add here that by specifying the benefit sought, this does not mean the Veterans specifies a diagnosis, where symptoms will suffice.

[retiredat44]

I have wondered why sometimes people seem to get their informal claims called an informal claim, while other times it seems like the VA says that just because you visit the VA doc, does not necessarily mean you want to apply for that benefit. The Court of Appeals for Veterans Claims narrowly interprets the VA duty to fully and sympathetically develop the veterans claim to its optimum by determining all potential claims raised by the evidence. whether a claim for service connection for condition X requires VA to adjudicate a claim for service connection for condition Y (as well as condition X) turns on what the veteran or representative said during the time that the claim for condition X was being considered by VA. As the CAVC put it in Brokowski v. Shinseki the VA has no obligation to adjudicate a claim for service connection for condition Y unless the record . . . satisfie all three requirements for an informal claim for disability compensation for [condition Y]. The Brokowski test: (in my own words) 1. The Claim must be written. Telling the doc something means nothing unless he wrote it in your records. 2. There must be an "intent" for the Veteran to apply for benefits. 3. The Veteran must "specify the benefit sought". I will add here that by specifying the benefit sought, this does not mean the Veterans specifies a diagnosis, where symptoms will suffice.

#3 is the one that is of interest to me:

3. The Veteran must "specify the benefit sought". I will add here that by specifying the benefit sought, this does not mean the Veterans specifies a diagnosis, where symptoms will suffice.

MY interest is because most of the time I have been sick, half my life, I had no diagnosis only symtoms of diseases, and had to be doctors for answer and usually got very little... and when I fianllly got real solid proof and answers the VA claims try to act stupid and make me appeal even though I satisfy everything...

it was the not having a diagnosis that was the most maddening..

Edited March 19, 2011 by retiredat44

[broncovet]

THE VETERAN does not have to specify a diagnosis to be awarded benefits...he can specify symptoms. In fact, The Veteran is rarely a medical professional competent to diagnose illnesses, so the Veteran need only specify symptoms to meet the Brokowski test, IMHO.

When the Veteran specifies a diagnosis, yes, sure he can still proabably get benefits, based on what the doc reports are his symptoms. (IMHO VA compensates Vets on symptoms, not diagnosis...one example of this is you probably will get little, if any, benefits if you have an asymptomatic illness. In other words if this malady causes you no symptoms, then the VA is not going to pay you.)

The problem with applying for benefits using a diagnosis, is that the C and P examiner may not agree with this diagnosis. He may say you have something else..or nothing at all. In other words Doc A could think your symptoms are "depression", while Doc B may say you have Bipolar disorder or something else, and they could have similar symptoms.

It is your C and P examiners to make a diagnosis, not the Veteran. The Brokowski test is used to identify issues, which does not necessarily mean you will be awarded benefits. To be awarded benefits, you first have to apply, and identify issues or "specify the benefit sought". Until you have met that criteria, in theory at least, you cant be awarded benefits.

If you cant get benifits because a VA doc did not give you a diagnosis, then the obvious answer is to seek an IME or IMO, where another doc may give you a diagnosis.

[Chuck75]

The Veteran must "specify the benefit sought" ???

This is an interesting statement, and subject to a heck of a lot of interpretation.

The benefit sought is generally compensation. (and is sort of understood.)

Did the veteran identify the problem symptoms for which benefit is sought.

I.E. shortness of breath, lack of stamina, etc.

OR

Did the veteran furnish medical records showing a diagnosis, and or did the veteran submit supplementary documents,

such as an SSA determination?

In either case, to "fully develop" a claim, the V A will ask for additional evidence, and likely a C&P, even when the records are such that a C&P is not required, and enough to "rate".

As long as an RO can request a C&P without repercussion, they will do so.

WHY?

A C&P request moves the case from the RO's action pile to a pile awaiting results from the C&P.

I believe this gets the RO credit for a "disposition" action, and unnecessarily delays the claim. (again)

The VA's claim process is reminiscent of a loan application process I endured in the 1980's.

We provided everything the bank asked for in front.

The bank kept asking for new or supplementary information that they did not ask for to begin with.

Finally, I sent them a letter that pointed out the continuing information request problem, and basically told them to stop screwing around.

The loan was issued within a week of receipt of the letter.

[Berta]

Brokowski is referenced quite a bit in BVA decisions.

"The United States Court of Appeals for Veterans Claims (Court)

held that a claimant's identification of the benefit sought does

not require any technical precision. See Ingram v. Nicholson, 21

Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who

knows what symptoms he is experiencing and that are causing him

disability.... [and] it is the Secretary who knows the provisions

of title 38 and can evaluate whether there is a potential under

the law to compensate an averred disability based on a

sympathetic reading of the material in a pro se submission. "A

claimant may satisfy this requirement by referring to a body part

or system that is disabled or by describing symptoms of the

disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86-87

(2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)

(stating that, when determining the scope of a claim, the Board

must consider "the claimant's description of the claim; the

symptoms the claimant describes; and the information the claimant

submits or that the Secretary obtains in support of that

claim"); 38 C.F.R. § 3.159©(3) (2009). In light of Brokowski

and Clemons, the Board has recharacterized the Veteran's hand and

foot claims as indicated on the title page. In addition, as will

be discussed below, because his representative asserts in June

2010 written argument that service connection is warranted for

pes planus, the Board will consider that condition as part of his

right and left foot disability claims."

http://www4.va.gov/vetapp10/files3/1025762.txt

"A claim includes all

disabilities that may be reasonably encompassed by the

claimant's description of the claim, reported symptoms, and

other information of record." Brokowski v. Shinseki, 23 Vet.

App. 79, 86-87 (2009).

http://www4.va.gov/vetapp10/files3/1021296.txt

"A claim must identify the benefit sought. 38 C.F.R.

§§ 3.151, 3.155(a). The requirement to identify the benefit

sought means that a claimant must describe the nature of the

disability for which he is seeking benefits. Brokowski v.

Shinseki, 23 Vet. App. 79 (2009); See Ingram v. Nicholson, 21

Vet. App. 232, 256 (2007)."

http://www4.va.gov/vetapp10/files2/1016241.txt

However this BVA decision refers to the "unguided safari" aspects of claims such as Brokowski could fall into:

http://www4.va.gov/vetapp10/files1/1011660.txt

http://www4.va.gov/vetapp10/files1/1011660.txt

in my opinion Brokowski should have raised a TBI issue due to the accident he was in and than claimed residuals from TBI in his original claim.I thn the proper wording of a claimed disability can be critical and should not be vague but based on actual diagnosis.

[stillhere]

This is a good subject and just like MOST of the steps the VA take, they appear to walk on both sides of the street in different directions and still end up at the same Place! Kind of like basic traing when we would run up hill to the mess hall and then run up hill to the barracks. They shipped me out before I could figure that OUT! Ha HA!

I have had the VA on a C&P rate conditions that I did not put in for but I have never had a VA regular doc like a PCP tell me I should apply for this or that.

Another thing I am 100%+ SMC-s and filing for anything else would be just a waste at this point.

I would suggest though that when you go to the VA that you get copies of what the docs put in your records and claim those that you feel you have a shot at!

[broncovet]

Thank you, Berta, for help pointing out that the Veteran does NOT necessarily need to specify a diagnosis to meet the 3 part Brokowski Test, that the Veteran specifying SYMPTOMS will suffice in helping the Veteran get an EED.

One example of this is that the Veteran may not "think" he specified "depression" for a claim..because he did not use the word "depression". Remember, tho, "depression" is a diagnosis that Doctors make and Veterans simply tell the doc about SYMPTOMS, and remember, the VA has to liberally interpret this.

IMHO 2 of the 3 parts of the Brokowski test are easy to get: If you tell the doc you have a symptom x, and the Doc writes it down in the record, that would, theoretically, be 2 of the 3 parts. (written and "specify benefit sought, reminding you that a doc can make a diagnosis later, and it is still possible this preserves the effective date)

The final "leg" of the 3 legged "Brokowski stool" test is that the Veteran must show "intent to apply for benefits".

While the VEteran probably needs to "hit this one home" there are more than one way to show intent to apply for benefits. ONe example might be signing a POA to get a representative help you get benefits. I mean, what is the VA going to say.."Oh sure, you signed a POA but that does not mean you wanted to apply for benefits"

You could respond by saying, "Oh, no actually I thought my VSO was cute and had intended to ask her on a date, and wanted to give her my phone number".....NOT! The act of signing a POA and filling out the paperwork for an application shows "intent" to apply for benefits...(tho this will probably have to be tested in court).

Another "intent to file for benefits", might be showing up for a C and P exam. I mean, again, is the VA gonna say.."well, gee, how were we supposed to know you were filing for PTSD benefits...I thought you were lonely and wanted to have someone to talk to...so you described your symptoms of PTSD to your C and P doc, who was measuring your scars for disability on that issue only".

Comer VS Peake tells us that the VA is not supposed to "trap" the unwary Veteran, tricking him out of his benefits:

..... His appeal asserted that he was entitled to "an increased evaluation for PTSD and an earlier effective date" for his PTSD disability benefits. Although Comer did not state specifically that he was entitled to an earlier effective date for his TDIU award, his claim for an increased rating and an earlier effective date for his PTSD benefits, coupled with the persuasive and pervasive evidence in the record demonstrating his unemployability, was sufficient to raise the issue of his entitlement to an earlier effective date for his TDIU award as well. While the Veterans Court correctly noted that a veteran is obligated to raise an issue in a notice of disagreement if he wishes to preserve his right to assert that issue on appeal, see 2007 Veterans Court Decision, 2007 U.S. App. Vet. Claims LEXIS 1083 at *6, the determination of whether an issue has been properly raised must be made with due regard for the VA's duty to read a veteran's submissions sympathetically. In other words, the VA's duty to read an appeal submission sympathetically to ascertain all potential claims it contains is antecedent to its duty to ensure that an issue has been properly raised on appeal. Cf. Andrews, 421 F.3d at 1283 ("[T]he VA's duty to sympathetically read a veteran's pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.").<br style="min-width: 0px; ">Indeed, 38 C.F.R. § 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record. Indeed, by regulation, the Board is required to construe an appellant's arguments in a liberal manner . . . ." (citations and internal quotation marks omitted)). A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding {552 F.3d 1369} of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits. See Hughes v. Rowe, 449 U.S. 5, 15, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.").<br style="min-width: 0px; ">"The government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 ("Congress has created a paternalistic veterans' benefits system to care for those who served their country in uniform."). The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him. To the contrary, the VA "has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have." Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal.<br style="min-width: 0px; ">