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Fleshman v. West

March 11, 1998


Appealed from: United States Court of Veterans Appeals

Before Clevenger, Circuit Judge, Smith, Senior Circuit Judge, and Bryson, Circuit Judge.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Judge Ivers

Richard E. Fleshman appeals from the decision of the Court of Veterans Appeals affirming the denial of Mr. Fleshman's request that his claim for disability benefits be assigned an earlier effective date. We agree with the Court of Veterans Appeals that Mr. Fleshman's first application for benefits was not "in the form prescribed by the Secretary," 38 U.S.C. § 5101(a), and that it therefore did not have the effect of establishing an earlier entitlement date for his receipt of benefits.


On May 24, 1986, while on active duty with the United States Army, Mr. Fleshman fell from a repelling tower. As a result of the fall, Mr. Fleshman sustained injuries to his back and right leg, including a compression fracture in the lumbar region of his spine. Following treatment, Mr. Fleshman returned to duty and completed his enlistment. After his honorable discharge on October 8, 1987, Mr. Fleshman sought compensation benefits for his back injury by filing a claim form with the Department of Veterans Affairs regional office in Cleveland, Ohio. Mr. Fleshman, however, did not fill out the second page of the two-page form. He therefore failed to complete the portion of the form calling for (1) his signature, certifying that the statements in the form were accurate and complete, and consenting to have any treating physicians furnish information to the Department of Veterans Affairs; (2) his mailing address; and (3) the date of execution of the form. Upon receiving the incomplete application, the regional office placed check marks next to the boxes where the missing information should have been included. The office then returned the form to Mr. Fleshman, along with a cover letter requesting him to complete the checked items and to return the completed form as soon as possible. The cover letter stated that if the form was not returned within a year of the date of the letter, "benefits, if entitlement is established, may not be paid prior to the date of its receipt." Mr. Fleshman never returned the form.

On January 30, 1992, Mr. Fleshman submitted a new application seeking compensation benefits for his back injury. Unlike the 1987 application, the 1992 application was signed, dated, and bore a return address. Following a physical examination, the regional office granted Mr. Fleshman's claim effective as of January 30, 1992, the day on which it received his application. Mr. Fleshman appealed the regional office's decision to the Board of Veterans' Appeals, claiming, inter alia, that his 1987 application entitled him to an effective date of October 9, 1987, the day after his discharge from service. See 38 U.S.C. § 5110(b)(1) ("The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release.").

The Board of Veterans' Appeals denied Mr. Fleshman's claim for an earlier effective date. The Board made the following factual findings: "The veteran filed an incomplete claims form for disability benefits in October 1987. Upon receipt of the claim, the RO [regional office] returned the claims form to the veteran requesting that additional information be provided prior to further processing of his claim. The form was never returned to the RO, and the veteran's claim was deemed unprocessable. On January 30, 1992, the RO received a completed application . . . ." Citing 38 C.F.R. § 3.158(a), the Board held that "he veteran's failure to return a completed claim form despite the RO's request constituted abandonment of that claim." The Board therefore concluded that Mr. Fleshman was entitled to benefits only as of January 30, 1992, the date on which the regional office received his completed claim form. See 38 U.S.C. § 5110(a) ("Unless specifically provided otherwise in this chapter, the effective date of an award . . . of compensation . . . shall not be earlier than the date of receipt of application therefor.").

Mr. Fleshman appealed the decision of the Board of Veterans' Appeals to the Court of Veterans Appeals. The court affirmed, but it did not base its decision on the "abandonment" ground on which the Board had relied. Instead, the court relied on 38 U.S.C. § 5101(a), which provides that " specific claim in the form prescribed by the Secretary [of Veterans Affairs] must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." Characterizing Mr. Fleshman's unexecuted 1987 application as an informal claim, see 38 C.F.R. § 3.155(a), the court held that "ecause [Mr. Fleshman] failed to comply with the Secretary's requirements within one year from the date of the Secretary's notification, the informal claim never became a claim in the form prescribed by the Secretary." Accordingly, the court concluded that Mr. Fleshman did not submit a claim satisfying the requirements of section 5101(a) until he submitted his 1992 application, and that he was therefore not entitled to an effective date earlier than January 30, 1992.



In order to receive benefits from the Department of Veterans Affairs, an applicant must file a claim "in the form prescribed by the Secretary." 38 U.S.C. § 5101(a); see also 38 C.F.R. § 3.151(a). Mr. Fleshman contends the statute and regulation merely require a person claiming veterans' benefits to file a claim on an application form provided by the Secretary. We disagree. That result would be compelled only if the provision used language such as "on the form" or "using the form." Compare 38 U.S.C. § 5101(a) and 38 C.F.R. § 3.151(a) with 38 C.F.R. § 3.160(b) (defining an original claim as "n initial formal application on a form prescribed by the Secretary") (emphasis added) and 38 C.F.R. § 3.153 (stating that "n application on a form jointly prescribed by the Secretary and the Secretary of Health, Education, and Welfare" will be considered to be a claim for death benefits) (emphasis added).

We agree with the government's contention that section 5101(a) requires applicants to submit a claim in a particular format, containing specified information, and signed by the claimant, as called for by the blocks on the application form. Our holding does not mean, as Mr. Fleshman suggests, that a formal application submitted on the appropriate form will never be deemed sufficient unless it is letter perfect. However, where the applicant fails to provide critical elements of the information requested on the form and the Department of Veterans Affairs returns the form to the applicant requesting that he provide the missing items, the applicant will not have satisfied the "in the form prescribed by the Secretary" requirement of section 5101(a) until he submits the requested information.

In arguing to the contrary, Mr. Fleshman relies on the Court of Veterans Appeals' decision in Edenfield v. Brown, 8 Vet. App. 384, 389 (1995), which states that section 5101 "require a person claiming VA benefits to file a claim on an application form provided by the Secretary." That statement indicates that using the prescribed application form is a necessary condition for compliance with section 5101(a), but it does not stand for the ...

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