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Pro Se Veterans' Filings Must Be 'Read Liberally'

By Robyn Hagan Cain on January 11, 2013 | Last updated on March 21, 2019

A veteran proceeding pro se gets extra leeway in making his benefits case.

And if the Board of Veterans' Appeals and the Court of Appeals for Veterans Claims don't give him that leeway? Well, they'll probably be reviewing the claim again on remand.

Norman Harris served on active duty in the Army from 1963 to 1966 and from 1967 to 1970. In 1985, he participated in a VA Medical Center examination, during which he was diagnosed with skin condition disabilities. One of the forms associated with that examination was captioned an "Agent Orange Registry Code Sheet." Another, listing his years of service in Vietnam, was captioned an "Application for Medical Benefits," indicating that it would be used to determine his eligibility for Veterans Benefits.

On July 29, 2002, Harris filed a pro se claim seeking service-connected disability compensation for, among other things, contact dermatitis and latex allergy. The Department of Veterans Affairs regional office ultimately granted the claims, and assigned an effective date for his skin condition disabilities of July 29, 2002. Harris appealed, again pro se, to the Board of Veterans' Appeals arguing, among other things, that the effective date for his skin condition disabilities should be the date of his 1985 VA Medical Center examination.

The Board held that "the report of the Agent Orange Registry examination that was conducted in January 1985 did not constitute a claim -- formal or informal -- for service connection for contact dermatitis and latex allergy" and, therefore, his 2002 claim was the earliest expression of his intent to apply for service connection for a skin disorder. The Board concluded that Harris was not entitled to an earlier effective date for his service-connected skin disabilities. The Court of Appeals for Veterans Claims affirmed that decision.

The Federal Circuit's review of Veterans Court decisions is strictly limited by statute; unless an appeal presents a constitutional issue, the appellate court may not review challenges to factual determinations or challenges to a law or regulation as applied to a particular case. It may, however, review whether the Veterans Court failed to consider a controlling rule of law in reaching its decision. Which is what happened here.

In reviewing the lower court's decision, the Federal Circuit panel noted that its prior decisions in Moody v. Principi, Szemraj v. Principi, and Roberson v. Principi made it clear that pro se filings must be read liberally. All three cases require the VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits," but decisions in Harris' matter didn't provide any indication that the Veterans Court considered Moody, Szemraj, or Roberson, or that the court otherwise acknowledged its obligation to require that the Board generously construe the evidence in this case.

Because the Veterans Court did not apply the proper legal standard for determining whether the Board had correctly determined the earliest applicable date for Harris' claim for benefits, the Federal Circuit Court of Appeals vacated and remanded the matter.

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