United States Court of Appeals
`for the Federal Circuit
`______________________
`
`KERRY E. SHEA,
`Claimant-Appellant
`
`v.
`
`ROBERT WILKIE, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2018-1735
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 16-3479, Judge Amanda L. Mere-
`dith.
`
`______________________
`
`Decided: June 20, 2019
`______________________
`
`ISAAC CHAIM BELFER, Covington & Burling LLP, Wash-
`ington, DC, argued for claimant-appellant. Also repre-
`sented by JEFFREY HOWARD LERNER; RICHARD VALENTINE
`SPATARO, National Veterans Legal Services Program,
`Washington, DC.
`
` MOLLIE LENORE FINNAN, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for respondent-appellee.
`Also represented by JOSEPH H. HUNT, TARA K. HOGAN,
`ROBERT EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, BRIAN
`
`

`

`2
`
`SHEA v. WILKIE
`
`D. GRIFFIN, DEREK SCADDEN, Office of General Counsel,
`United States Department of Veterans Affairs, Washing-
`ton, DC.
` ______________________
`
`Before DYK, REYNA, and TARANTO, Circuit Judges.
`TARANTO, Circuit Judge.
`Kerry Shea served in the United States Air Force. In
`2007, she filed an application with the Department of Vet-
`erans Affairs (VA) for disability benefits, expressly reciting
`physical injuries she sustained from an in-service truck ac-
`cident. In 2008, she expressly sought disability benefits for
`a psychiatric condition connected to her military service.
`VA granted benefits for both physical and psychiatric con-
`ditions, but when Ms. Shea argued for a 2007 effective date
`for the psychiatric-disability benefits on the ground that
`her 2007 application presented an informal claim for psy-
`chiatric-disability benefits, VA disagreed. Specifically,
`VA’s Board of Veterans’ Appeals concluded that, under the
`regulation then governing informal claims, Ms. Shea’s
`2007 application did not adequately convey that she was
`seeking benefits for a psychiatric disability. The Court of
`Appeals for Veterans Claims (Veterans Court) affirmed. In
`this appeal by Ms. Shea, we conclude that the Veterans
`Court applied too restrictive a legal standard in reading
`her 2007 application. We vacate the Veterans Court’s de-
`cision and remand for further proceedings.
`I
`A
`Ms. Shea began serving in the Air Force in October
`2006. Her pre-enlistment examination indicated a normal
`psychiatric condition. On January 19, 2007, while sta-
`tioned at the Sheppard Air Force Base in Wichita Falls,
`Texas, Ms. Shea underwent an Air Force medical examina-
`tion. The record of the examination states a diagnosis of
`
`

`

`SHEA v. WILKIE
`
`3
`
`an adjustment disorder with anxiety and depressed mood,
`and it notes, among other things, that she found the Air
`Force harder than anticipated, was having difficulty in her
`classes, and had obtained professional help for anxiety and
`depression. Four days later, on January 23, 2007, Ms. Shea
`was struck by a large truck while on base. She was brought
`to the emergency room at the United Regional Health Care
`System, where several examinations showed that she had
`sustained various physical injuries, including a right pul-
`monary contusion, a transverse process fracture of L3, a
`left iliac wing fracture, and a right L3 acetabular fracture.
`After being released from the emergency room, Ms.
`Shea was treated at several different facilities. On Janu-
`ary 31, 2007, she entered HealthSouth Rehabilitation Hos-
`pital in Wichita Falls, Texas. Her medical records from
`that facility report anxiety, depression, and impaired
`memory, which were “currently exacerbated,” and for
`which she was prescribed antidepressants. J.A. 171. She
`was discharged from rehabilitation on March 21, 2007.
`On March 28, 2007, an Air Force medical evaluation
`board recommended that Ms. Shea be discharged from the
`military. The board reasoned that Ms. Shea’s continued
`service was “not compatible with anxiety and depression
`and sleep disturbance[,] which puts her at risk for inatten-
`tion and evident self harm,” and that she might not recover
`from her physical injuries quickly enough to return to ac-
`tive duty. J.A. 186.
`Near the beginning of April 2007, Ms. Shea was trans-
`ferred to Dover Air Force Base, where her then-husband
`was stationed, to continue her treatment. Her medical rec-
`ords from her time at Dover, though primarily focused on
`her physical injuries, also list diagnoses of anxiety and de-
`pression and note that Ms. Shea was having some memory
`problems.
`An Air Force physical evaluation board determined in
`May 2007 that Ms. Shea’s pelvic fractures and transverse
`
`

`

`4
`
`SHEA v. WILKIE
`
`process fracture were unfitting conditions that were com-
`pensable and ratable but that her adjustment disorder
`with depression and anxiety was not separately unfitting
`and was not compensable or ratable. On July 2, 2007, Ms.
`Shea was discharged from the Air Force because of her
`physical disabilities.
`
`B
`On October 19, 2007, Ms. Shea submitted a claim for
`disability benefits to VA. Her statement in support of the
`claim states, “Veteran is App[l]ying For se[r]vice connected
`disabilit[i]es,” and adds, “Please see Attached VA Form 21-
`526.” J.A. 254. The referred-to form, under the heading
`“What disability are you claiming?,” lists four physical dis-
`abilities: “Pelvic Fractures and transverse process fracture
`of L3,” “Shortness of breath,” “Right and Left Pulmonary
`contu[s]ions,” and “Pain chest.” J.A. 245. Under the head-
`ing “When did your disability begin?,” the form specifies
`“1/23/2007,” the date of the truck accident, for each disabil-
`ity. Id. And for the address of the medical facility or doctor
`that treated Ms. Shea for each disability, the form lists the
`United Regional hospital for the first disability, the Wich-
`ita Falls rehabilitation hospital for the second, and the Do-
`ver facility for the last two. Id.1
`After receiving the claim, VA sent Ms. Shea a letter re-
`garding the agency’s duty to assist veterans in obtaining
`evidence needed to substantiate their claims. In response
`to that letter, in December 2007, Ms. Shea submitted an
`additional statement in support of her claim, explaining
`that she had been treated by “United Regional Medical Ctr,
`Texas, Health South, Texas,” another “VA Hospital,” and
`
`
`1 Ms. Shea appointed the American Legion as her
`representative. The parties accept that Ms. Shea should
`be treated as having filed her initial claim pro se.
`
`

`

`SHEA v. WILKIE
`
`5
`
`two doctors in Dover. J.A. 290. She requested that VA
`“please obtain these records + grant benefits.” Id.
`In February 2008, the relevant VA regional office (RO)
`found that Ms. Shea’s transverse process fracture, pelvic
`fracture, and rib fractures were connected to her service
`within the meaning of, e.g., 38 U.S.C. § 1110 and 38 C.F.R.
`§ 3.303. For the resulting benefits, the RO assigned an ef-
`fective date of July 3, 2007, the day after Ms. Shea was dis-
`charged from service. Under a governing regulation, that
`was the proper effective date because her claim was filed
`within a year of her discharge.
` See 38 C.F.R.
`§ 3.400(b)(2)(i) (2007).
`Ms. Shea submitted a notice of disagreement with the
`RO’s decision on July 7, 2008. She attached to that filing a
`letter asking that VA “please reconsider my disability rat-
`ing” and explaining that, among other symptoms, “I also
`don’t remember a lot of things I do, even the same day,”
`“[m]y job had to print out special instructions for me to
`close out the computer step by step because I am unable to
`remember day to day,” and “I live the accident daily now.”
`J.A. 304. Eventually, VA found that letter (but no earlier
`filing) to be sufficient to present a claim for psychiatric-dis-
`ability benefits.
`The path to that finding was as follows. On September
`9, 2008, Ms. Shea filed a claim in which she requested a
`determination of service connection for post-traumatic
`stress disorder (PTSD), noting that she was “now having
`problems.” J.A. 306. She submitted a statement in support
`of that claim on October 15, 2008, clarifying that her as-
`serted PTSD was secondary to her in-service truck acci-
`dent.
`The RO granted Ms. Shea’s PTSD claim in February
`2009 and assigned a 50% disability rating effective Sep-
`tember 9, 2008, the date of her submission expressly re-
`questing benefits for PTSD. On April 7, 2009, Ms. Shea
`submitted a notice of disagreement with the RO’s decision,
`
`

`

`6
`
`SHEA v. WILKIE
`
`challenging the effective date of her benefits for PTSD. She
`explained that “[t]his case has been in an appea[l]s status
`since origi[]nal application of 7/07” (her discharge month)
`and asked “to have grant go back to that date.” J.A. 351.
`Almost five years later, in March 2014, the Board re-
`jected Ms. Shea’s argument for an effective date earlier
`than September 9, 2008, for the PTSD benefits. It found
`that there was no formal or informal claim, or written in-
`tent to file a claim, for PTSD until September 9, 2008.2 Ms.
`Shea appealed that decision to the Veterans Court.
`In December 2015, Ms. Shea and VA jointly moved for
`a partial remand to the Board. They agreed that, in deter-
`mining whether Ms. Shea had filed a claim for PTSD before
`September 9, 2008, the Board had failed to consider Ms.
`Shea’s July 7, 2008 statement that she was experiencing
`memory difficulties. That statement, the parties agreed,
`was especially relevant “in light of subsequent medical ev-
`idence of record highlighting the symptom of memory loss
`before diagnosing her with PTSD and with an adjustment
`disorder with mixed anxiety and depressive mood.” J.A.
`407. The Veterans Court granted the motion and re-
`manded the case to the Board.
`The Board issued its decision on remand in July 2016.
`It relied on 38 C.F.R. § 3.155, a regulation governing infor-
`mal claims, which, in the version applicable to this matter,
`provided that “[a]ny communication or action, indicating
`an intent to apply for one or more benefits under the laws
`administered by [VA], . . . may be considered an informal
`claim” but that “[s]uch informal claim must identify the
`
`
`2 The Board also remanded Ms. Shea’s claims re-
`lated to her lumbar spine, hip, and rib disabilities for a new
`VA examination. Ms. Shea does not raise any issue regard-
`ing those disabilities in this appeal.
`
`

`

`SHEA v. WILKIE
`
`7
`
`benefit sought.” 38 C.F.R. § 3.155(a) (2007).3 Under that
`standard, the Board found, Ms. Shea’s July 7, 2008 state-
`ment describing her memory impairment constituted an
`informal claim for PTSD-disability benefits, since that
`statement could “reasonably be interpreted as an attempt
`to seek service connection for the disability that caused the
`symptoms described.” J.A. 434. For that reason, the Board
`granted an effective date of July 7, 2008, for PTSD-
`disability benefits.
`The Board refused to grant an even earlier effective
`date, however, finding that Ms. Shea had not presented an
`informal claim for PTSD-based benefits before July 7,
`
`
`3 There is no dispute that the 2007 version of § 3.155
`applies to this appeal. VA amended this and related regu-
`latory provisions in 2015 to require that claims be submit-
`ted on a specific form prescribed by VA, effectively ending
`the practice of “informal claims.” See 38 C.F.R. §§ 3.155(d),
`3.160(a) (2015); Veterans Justice Grp., LLC v. Sec’y of Vet-
`erans Affairs, 818 F.3d 1336, 1350–52 (Fed. Cir. 2016) (up-
`holding new regulations). Under the amended regulation,
`if a claimant “indicates a desire to file for benefits” through
`a “communication or action” that “does not meet the stand-
`ards of a complete claim,” VA will consider that communi-
`cation or action to be a “request for an application form for
`benefits,” and VA will notify the claimant of the infor-
`mation necessary to complete the application form. Id.
`§ 3.155(a) (2015). We express no view on the meaning of
`the new regulations, including the relationship between
`“identify[ing] the benefit sought” as required to raise an in-
`formal claim under the pre-2015 version of the regulation,
`id. § 3.155(a) (2007), and “identify[ing] the benefit sought”
`as required for a claim to be considered complete under the
`current version of the regulation, id. § 3.160(a)(3) (2015).
`All further references to § 3.155 in this opinion are to
`the 2007 version, hereafter cited without the date.
`
`

`

`8
`
`SHEA v. WILKIE
`
`2008. It reasoned that Ms. Shea’s October 19, 2007 sub-
`mission “does not identify that benefits are being sought
`for a psychiatric disability” under § 3.155(a) because it does
`not “refer to any psychiatric disability or symptom that can
`be attributed to a psychiatric disability.” J.A. 434. The
`Board also determined that Ms. Shea’s service and post-
`service treatment records, while stating psychiatric diag-
`noses, do not constitute an informal claim, reasoning that
`there was “no indication that [Ms. Shea] intended to file a
`claim for service connection for PTSD through the mere
`submission of medical records in support of her formal
`claims for service connection for non-psychiatric disabili-
`ties.” Id.
`Ms. Shea appealed the Board’s denial of a July 3, 2007
`(day after discharge) effective date to the Veterans Court,
`which affirmed the Board’s decision in December 2017.
`The Veterans Court noted that Ms. Shea “plainly intended
`to apply for benefits in October 2007.” J.A. 11. Neverthe-
`less, it concluded that, in her October 2007 submission, she
`had not “adequately identified a psychiatric disability as
`one of the benefits sought” for purposes of stating an infor-
`mal claim under § 3.155(a), since in that submission she
`“did not refer to any psychiatric conditions or symptoms at-
`tributable to her psychiatric condition.” J.A. 10–11 (em-
`phasis omitted). The court acknowledged Ms. Shea’s
`argument that, “because she listed the date of her in-ser-
`vice accident as the date all her expressly claimed physical
`disabilities began, VA should have liberally construed that
`claim as including all residuals of the in-service accident,”
`such as her psychiatric disability. J.A. 11–12. The court
`rejected that contention, stating that Ms. Shea was
`“rel[ying] on the mere existence of medical evidence of a psy-
`chiatric condition, in existence at the time of the formal
`claim for benefits for physical disabilities,” which “alone
`does not raise an initial claim for benefits.” J.A. 12 (citing
`Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006)).
`
`

`

`SHEA v. WILKIE
`
`9
`
`Ms. Shea timely appealed to this court. We have juris-
`diction to consider legal issues raised by the Veterans
`Court’s decision, such as whether the Veterans Court mis-
`interpreted § 3.155(a) and related provisions and our pre-
`vious decisions interpreting such provisions. See 38 U.S.C.
`§ 7292(d)(1).
`
`II
`A
`Under the applicable version of § 3.155(a), “any com-
`munication can qualify as an informal claim if it: (1) is in
`writing; (2) indicates an intent to apply for veterans’ bene-
`fits; and (3) identifies the particular benefits sought.”
`Reeves v. Shinseki, 682 F.3d 988, 993 (Fed. Cir. 2012); see
`Rodriguez v. West, 189 F.3d 1351, 1353–54 (Fed. Cir. 1999).
`Specifically, under § 3.155(a), “[s]uch informal claim must
`identify the benefit sought.” The issue Ms. Shea presents
`for decision is whether the Veterans Court relied on too re-
`strictive a legal standard when reviewing Ms. Shea’s for-
`mal application for benefits to decide whether it should be
`read as including a claim for psychiatric-disability benefits.
`We limit ourselves to that issue. The parties agree that
`the regulation’s reference to “benefit sought” refers to the
`condition giving rise to the entitlement rather than the ul-
`timate recovery, and we proceed on that basis without de-
`ciding the correctness of that assumption.
`We have explained on several occasions that pro se fil-
`ings must be read liberally to determine whether they sat-
`isfy § 3.155(a). Thus, in Roberson v. Principi, we held that
`the Veterans Court misinterpreted § 3.155(a) in concluding
`that a claimant had not raised a claim of total disability
`based on individual unemployability (TDIU), see 38 C.F.R.
`§ 4.16, because he did not specifically request a finding of
`TDIU in his original claim, though he submitted evidence
`of a medical disability and of unemployability and asked
`for the highest rating possible. 251 F.3d 1378, 1384 (Fed.
`
`

`

`10
`
`SHEA v. WILKIE
`
`Cir. 2001). “The VA must consider TDIU because, in order
`to develop a claim ‘to its optimum’ as mandated by Hodge,
`the VA must determine all potential claims raised by the
`evidence, applying all relevant laws and regulations, re-
`gardless of whether the claim is specifically labeled as a
`claim for TDIU.” Id. (quoting Hodge v. West, 155 F.3d 1356,
`1362 (Fed. Cir. 1998)).4
`Several years later, in Szemraj v. Principi, we held that
`“Roberson is not limited to its particular facts.” 357 F.3d
`1370, 1373 (Fed. Cir. 2004). We explained that “Roberson
`requires, with respect to all pro se pleadings, that the VA
`give a sympathetic reading to the veteran’s filings by ‘de-
`termin[ing] all potential claims raised by the evidence, ap-
`plying all relevant laws and regulations.’” Id. (quoting
`Roberson, 251 F.3d at 1384).
`We reiterated that requirement in Moody v. Principi,
`360 F.3d 1306 (Fed. Cir. 2004). The Board in that case de-
`termined that a claimant had not made a claim of second-
`ary service connection for a psychiatric disorder because,
`among other reasons, his application for benefits “did not
`list a psychiatric disorder claimed to be related to prostati-
`tis as a disease for which a claim was being made.” Id. at
`1309. We vacated the Veterans Court’s affirmance of the
`Board’s decision. What we identified as error was that the
`Board had “rigorously applied section 3.155(a)” and had not
`“determine[d] all potential claims raised by the evidence,
`applying all relevant laws and regulations.” Id. at 1309–
`10 (quoting Roberson, 251 F.3d at 1384). We further held
`that “ambiguity” in a pro se filing that could be construed
`
`4 Roberson’s reasoning did not expressly depend on
`the fact that the claimant there was unrepresented when
`he filed his initial claim, but we have subsequently charac-
`terized Roberson as an example of cases recognizing VA’s
`“special obligation to read pro se filings liberally.” See Rob-
`inson v. Shinseki, 557 F.3d 1355, 1358–59 (Fed. Cir. 2009).
`
`

`

`SHEA v. WILKIE
`
`11
`
`as an informal claim “should be resolved in favor of the vet-
`eran.” Id. at 1310.
`In Harris v. Shinseki, we summarized Roberson and
`subsequent decisions as holding that “VA has a duty to
`fully develop any filing made by a pro se veteran by deter-
`mining all potential claims raised by the evidence.” 704
`F.3d 946, 948 (Fed. Cir. 2013). On that basis we vacated
`the Veterans Court’s decision because there was no “indi-
`cation 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.” Id.
`The lesson of our cases is that, while a pro se claimant’s
`“claim must identify the benefit sought,” the identification
`need not be explicit in the claim-stating documents, but can
`also be found indirectly through examination of evidence to
`which those documents themselves point when sympathet-
`ically read. “[T]he Board is not obligated to consider ‘all
`possible’ substantive theories of recovery.” Robinson, 557
`F.3d at 1361; see also Brokowski v. Shinseki, 23 Vet. App.
`79, 89 (2009) (stating that VA need not “conduct an un-
`guided safari through the record to identify all conditions
`for which the veteran may possibly be able to assert enti-
`tlement to a claim for disability compensation”). But in de-
`ciding what disabilities, conditions, symptoms, or the like
`the claim-stating documents are sympathetically under-
`stood to be identifying, VA must look beyond the four cor-
`ners of those documents when the documents themselves
`point elsewhere—here, to medical records. See Roberson,
`251 F.3d at 1384 (requiring examination of evidence to in-
`terpret the claim); Moody, 360 F.3d at 1310 (same);
`Szemraj, 357 F.3d at 1373 (VA must “give a sympathetic
`reading to the veteran’s filings”).
`Additional precedents reinforce the point. In Comer v.
`Peake, we determined that, although the claimant there
`“did not state specifically that he was entitled to an earlier
`
`

`

`12
`
`SHEA v. WILKIE
`
`effective date for his TDIU award, his claim for an in-
`creased rating and an earlier effective date for his PTSD
`benefits, coupled with the persuasive and pervasive evi-
`dence 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.” 552 F.3d
`1362, 1368 (Fed. Cir. 2009). In Robinson, we held that,
`where the clamant raised an issue of direct service connec-
`tion, “the evidence in the record must be reviewed to deter-
`mine the scope of that claim,” so that “the Board was
`obligated to consider direct as well as secondary service
`connection if raised by the record.” 557 F.3d at 1362. We
`summarized our cases as follows: “Roberson, Robinson, and
`Comer thus require the Veterans Court to look at all of the
`evidence in the record to determine whether it supports re-
`lated claims for service-connected disability even though
`the specific claim was not raised by the veteran.” Scott v.
`McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The
`standard, though not a bright-line one, reflects “the
`‘uniquely pro-claimant’ character of the veterans’ benefits
`system.” Harris, 704 F.3d at 948.
`B
`Ms. Shea contends that the Veterans Court departed
`from the proper legal standard by considering her October
`2007 application for benefits in isolation from, rather than
`in conjunction with, her other submissions and her service
`treatment records. She seeks a remand for application of
`the proper legal standard. We agree that a remand is war-
`ranted because the Veterans Court did not make clear that
`it was applying a legal standard in accordance with the
`above exposition.
`Ms. Shea’s central rationale for how her October 2007
`application should be sympathetically read to include an
`informal claim for a psychiatric disability is straightfor-
`ward. She observes that her October 2007 application
`(a) lists treatment by specific physicians at specific
`
`

`

`SHEA v. WILKIE
`
`13
`
`facilities during specific periods, J.A. 245, and (b) refers to
`that itemization when stating that she is “applying for ser-
`vice connected disabilities,” J.A. 254. She adds that her
`December 2007 statement in support of her claim reiter-
`ates that itemization and asks VA to “obtain these records
`[and] grant benefits.” J.A. 290. And she cites to express
`references to psychiatric problems in medical records
`among those itemized, as summarized above.5
`The Veterans Court’s rejection of that theory rested on
`too restrictive an interpretation of § 3.155(a). The Veter-
`ans Court seemingly required that, to “identify the benefit
`sought” as required by the regulation, Ms. Shea’s applica-
`tion itself had to contain words that themselves refer to a
`psychiatric disability or to mental-health symptoms, as op-
`posed to language that points to records mentioning such a
`condition in a way that, sympathetically read, is properly
`understood as seeking benefits for such a condition. The
`Veterans Court’s apparent requirement is contrary to the
`more flexible standard we draw from our precedents, as
`discussed above.
`Although the Veterans Court stated that “medical rec-
`ords alone are not sufficient to raise an initial claim for
`benefits,” J.A. 10, Ms. Shea has been explicit that she is not
`arguing otherwise. She relies on the claim-stating docu-
`ments’ concrete references to specified records. We thus do
`not have before us a question whether the § 3.155(a) stand-
`ard can be met by the existence of a diagnosis in a claim-
`ant’s medical records, without more, or in conjunction with
`
`5 Given the medical-records references in her claim
`filings, we do not address the seemingly hypothetical con-
`tention that a claim for psychiatric-disability benefits
`would properly be found in those filings even if they did no
`more than state that her disabilities began on January 23,
`2007 (which was the day of the truck accident, though the
`October and December 2007 filings do not say that).
`
`

`

`14
`
`SHEA v. WILKIE
`
`a generalized request for all benefits that are supported in
`all medical records that VA would gather in the ordinary
`course. We hold only that, where a claimant’s filings refer
`to specific medical records, and those records contain a rea-
`sonably ascertainable diagnosis of a disability, the claim-
`ant has raised an informal claim for that disability under
`§ 3.155(a).
`Because the Veterans Court did not articulate and ap-
`ply the proper legal standard, we must vacate its decision.
`Ms. Shea has not asked us to hold that her application suf-
`ficiently invokes psychiatric-disability benefits as a matter
`of law. For that reason, we remand for application of this
`opinion to the facts. In doing so, we do not suggest that we
`see a genuine issue as to the sufficiency of Ms. Shea’s ap-
`plication in this matter.
`
`III
`For the foregoing reasons, we vacate the Veterans
`Court’s decision and remand for further proceedings con-
`sistent with this opinion.
`Costs awarded to Ms. Shea.
`VACATED AND REMANDED
`
`