Question about Servello v. Derwinski (1992)

[Vync]

I have seen a number of posts talking about Servello v. Derwinski, 3 Vet.App. 196, 198 (1992) regarding increasing an existing rating percentage or TDIU.

Does anyone know if Servello also applies to secondary disabilities not related to TDIU or increasing an existing rating percentage?

 

Edited May 19, 2021 by Vync

[john999]

If the new claims are unrelated to TDIU claim they just add to overall disability.  If the ratings are related to the TDIU they would boost the existing rating but not change TDIU unless you go to 100%.   I had TDIU  70%.  I got an extra 60%.  For that I got "S" and I was bumped up to 90%.  I got extra ratings of well over 100% but that just got me to 100% schedular. You either stay with TDIU or hit 100% and then TDIU goes away.  This is my understanding of it.

[Mr cue]

I am goin through something similar.

I was granted tdiu pt one condition.2001.

10 year later they granted 20 percent for elbow/hand and extra scheduler tdiu 1993-2001.

2018 I apply for smc housebound by fact from the 2001 tdiu pt one condition. And smc k loss of use of hand.

An now bva ro stated my tdiu is based of all my condition to not address housebound by fact..

I will have to look at this cases it might help.

Because if I understand it state the bva can't add other condition rate after tdiu award. To the base of tdiu.

Am I wrong

 

 

 

 

[broncovet]

Not exactly.  You have to consider "the time period".  Example:

I was awarded 100 percent, and tdiu was "moot".  I appealed, arguing tdiu was not moot as it could result in SMC S, and, could also result in an EED.   The board agreed, and specifically stated (in my case) that "tdiu was not moot".  

So, I eventually won tdiu, which means smc S, because I qualify under "100 plus 60", which I currently get.  So, I actually get 100 percent AND tdiu, for overlapping periods of time, "including" the present.  This award also resulted in an EED.  Each disabilty (issue) runs for a "period of time", tho this period is often open ended..and may never end.  Still, the effective dates for my tdiu and 100 percent are different.  

"Time" is another important factor, because it determines, especially, when you reach your 5 year, 10 year, and 20 year protections.  You can be "protected" on one rating, and not protected on another.  

[Vync]

This is a bit lengthy, but ties Servello together with 3.155, informal claims, and inferred claims. I have a feeling that this may also other veterans' claims to some degree.

@john999 and @broncovet,
When I had my heart attack, I already had another single 60% rating. The rating criteria for a heart attack is 100% for three months. The VA automatically granted me SMC-S housebound status for three months when I was out of work and recovering. After I becoming healthy enough to return to work, they discontinued SMC-S housebound and my heart rating was correctly reduced to 60% based on the evidence.

@john999 once told me, "When in doubt about your claim produce more evidence."

@broncovet repeatedly stated the VA has the responsibility to provide the maximum benefits allowable under law, which reflects Roberson v. Principi (2001).

My question about Servello involves the VA failing to properly apply laws relating to informal and inferred claims between 1995 and 2000.

At that time, most cases I found referencing Servello were related to TDIU or an increase, but this BVA decision does not. Instead, it focuses on an earlier EED and the informal claims:
https://www.va.gov/vetapp99/files1/9900190.txt

 

Here is how it might apply to my situation. I initially filed for TMJ in 1995 and was granted on appeal in 2000. I am exploring the possibility of getting an earlier EED and 20 year protection for headaches.  Years later in 2009, I filed and won for headaches secondary to TMJ.

Legal errors may have occurred during this time, so I am approaching this from a CUE mentality with a focus on laws, regulations, and legal precedents in effect between 1995 and 2000.

Quote

When the VA becomes aware of an informal claim, they are supposed to send an application form. If the application form was never sent, then the one-year filing window does not begin to run. The VA is also supposed to review any potential claims raised by the evidence, even if a specific claim was not raised by the veteran.

After TMJ was denied in 1995, I filed a NOD that included correspondence clearly stating TMJ caused headaches. Until I joined hadit.com in 2008, I was not aware secondary SC was possible.

The VA denied without doing a C&P exam. I appealed to BVA who remanded to the VARO. The remand order asked C&P exams be performed:

Quote

The RO should also schedule the veteran for a VA general medical examination to determine the nature and extent of all other alleged disabilities. The examination should include an evaluation of, but not limited to, the following conditions:  TMJ (and other redacted disabilities). The examiner should be required to assess any and all disabilities present and render an opinion as to whether they are etiologically related to service. A complete rationale for any opinions expressed should be provided.

The BVA clearly factored in laws and rulings involving inferred claims when they asked the examiner to assess "any and all disabilities present", which went beyond just "alleged disabilities".

C&P exams occurred in 1997 and 1999 diagnosing headaches and other things, but no etiology, rationale, or opinion were made. 
  When I asked here about this previously, I was told absence of an opinion is the equivalent of an implied denial, but now I am not so sure in light of Servello, inferred, and implied claims...

I looked at 38 C.F.R. § 3.155 (1998), which was in effect at the time of my original decision in 2000:

Quote

Any communication or action indicating an intent to apply for one or more benefits may be considered as 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 one 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.

Later, the VA began to require claims be made only in writing and eventually on specific forms, but at this time it was "any communication or action". 

In the above linked decision, the BVA provides this analysis.

Quote

The regulation which governs informal claims, 38 C.F.R. § 3.155 (1998), provides that  (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . 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.  See Quarles v. Derwinski, 3 Vet. App. 129, 136 (1992); Crawford v. Brown, 5 Vet. App. 33, 35 (1993); see also Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) (regulation does not require claimant to identify specifically benefit being sought; correct query was whether any communication or action by claimant evidenced a belief by the claimant that he or she was entitled to benefits).

That is how I became aware of the Servello decision that focused on the word "specifically". The VA argued the Servello specifically required the veteran to state the specific benefits being sought. The CAVC stated the veteran does not need to specifically indicate the benefits being sought. Evidence of a mere assertion without being specific is sufficient.

Quote

The Board’s conclusion derived from its incorrect interpretation of the regulation that an “informal claim [must] specifically identify the benefit sought.” Ibid, (emphasis added). Section 3.155(a) does not contain the word “specifically”. Making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court’s precedents and public policies underlying the veterans’ benefits statutory scheme. “A claimant’s claim may not be ignored or rejected by the BVA merely because it does not expressly raise the provision which corresponds to the benefits sought”. Douglas v. Derwinski, 2 Vet.App. 103, 109 (1992) (Douglas I); see Douglas v. Derwinski, 2 Vet.App. 435, 442 (1992) (en banc) (Douglas II); Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). “To require that veterans enumerate which sections they found applicable to their requests] for benefits would change the [nonadversarial] atmosphere in which [VA] claims are adjudicated.” Akles, supra.

Keep in mind that the timeframe of reference here is 1995 to 2000. That was before Roberson v. Principi was decided, which pretty much did the same thing as Servello v. Derwinski.
 

Now to factor in inferred claims:

Quote

An "inferred" claim is one not specifically identified by a claimant, but supported by the evidence.  Once a claim is received, VA has a duty to review the claim and the C-file supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims, even if a specific claim is not raised by the appellant.  See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder).

The inferred/informal claim for headaches should have resulted in an effective date in 1996 when the VA received evidence of me stating "TMJ causes headaches" and also being diagnosed during the 1997 C&P exam.

Per Shockley v. West and Collier v. Derwinsky the VA failed to adjudicate all claims reasonably raised by the evidence regardless of being requested in writing on a specific form.
1. The C&P doc erred by failing to provide SC etiology and rationale for the migraines and other disabilities as requested by the BVA.
2. The VARO erred by failing to recognize the error and and send it back to the examiner to provide a clear etiology opinion for or against SC.

During this time, my claims folder contains other forms sent by the VA (21-4107,  21-8764, 28-8890, and 28-1900), but never a form to file a new claim for SC required per 3.155. 

In 2009, I filed for and won SC for headaches, but the VA failed to consider an earlier effective date back. The effective date for headaches should have been granted back to 1996 as an inferred/informal claim.

 

What are your thoughts of me succeeding with a CUE for an earlier EED?

[Mr cue]

U have done your homework. An I believe u will win

But I wouldn't put all my legal issue in the claim at first Just a few.

Let the va do the work and address all the law if they don't.

U can appeal to bva with all your legal issue and if they don't address them u can bring them up at the cavc.

Were they will address every legal issue an the law.

 

 

 

 

 

 

 

 

[Vync]

@Mr cue,
So far, I have only ever filed two CUEs and made certain to include each proposed errors, applicable laws/regs/rulings that were not applied correctly, and the impact on my claim had the errors not been made. The CUEs were not something I just filed quickly. I tried to do all my homework and be as brief, but thorough, as possible.

The first CUE was won on review during a supplemental. That actually shocked me because those folks are not known for their expertise involving the regulations.

The second CUE was incorrectly denied during supplemental and again during HLR. I appealed it to the BVA and waiting for the hearing to be scheduled.

 

If I just filed one error at a time it would take time to be reviewed. If denied, I could file another, but why waste that time when I can provide all potential issues. Having had a heart attack two years ago, I might not be around too long if I had another. Because it is CUE, they are required to address each contention and explain why it is persuasive or not.

 

In this situation, the potential legal errors are intertwined upon each other. Spelling out each error helps to ensure that the VA does not simply dismiss one of them without factoring in the impact of another.

If my proposed logic is sound, there are other factors where this may apply. For example, during one of the C&P exams, I was diagnosed with GERD. Again, the examiner and RO didn't consider it an inferred or informal claim. However, I filed for SC years later at the same time as the headaches and won SC for it, too.