Psychiatric Disability Claims & the Rule Requiring a Sympathetic Reading of Pro Se Submissions
In EF v. Derwinski, 1 Vet.App. 324, 326 (1991), the Veterans Court affirmed that “[t]he VA's statutory ‘duty to assist’ must extend [a] liberal reading to include issues raised in all documents or oral testimony submitted prior to the BVA decision.” This duty to liberally or sympathetically read claimant submissions is nowhere more pronounced than with psychiatrically disabled veterans.
As explained by the Federal Circuit Court of Appeals:
The need for [VA] assistance is particularly acute where . . . a veteran is afflicted with a significant psychological disability at the time he files his appeal.
Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009); Collaro v. West, 136 F.3d 1304, 1309 (Fed. Cir. 1998) (“If Collaro had been less than chronically schizophrenic, and if he had more sophisticated legal advice on which to rely than that of a representative from one of the forty or so invaluable national service organizations that represent veterans, we might expect more from him.”);
The duty to sympathetically read pleadings means that a veteran’s written statements will be viewed in the most favorable light. For example, a claimant will not be penalized for failing to plead the legal elements of a claim. Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (“As to the Board's suggestion that the appellant was required to allege negligence or lack of skill, measuring the appellant's submissions against a strict pleading requirement is fundamentally inconsistent with the concept of a sympathetic reading and, therefore, constituted legal error by the Board.”).
Likewise, claimants are not expected to know and use the correct legal terminology. Robinson v. Peake, 21 Vet.App. 545, 554 (2008) (“where a lay person uses a term of art, the Board should still read the whole submission critically rather than assuming that the language was used correctly”); Comer, 552 F.3d at 1369 (“A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits.”) (citations omitted); see also March v. Brown, 7 Vet.App. 163, 169 (1994) (“The appellant did not allege in so many words that the position of the United States was not substantially justified, but he did state: ‘The SECRETARY filed an improvident Motion for Summary Affirmance.’ The Court holds that, in the case of a pro se appellant, such a statement is an adequate allegation of a lack of substantial justification.”).
Rather, claimant submissions should be construed as unsophisticated lay statements and given the broadest and most generous interpretation reasonably possible. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (“Although the RO has no duty to read the mind of the claimant, the RO should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.”); Ingram, 21 Vet.App. at 256 (“it is precisely because unsophisticated claimants cannot be presumed to know the law and plead claims based on legal elements that the Secretary must look at the conditions stated and the causes averred in a pro se pleading to determine whether they reasonably suggest the possibility of a claim for a benefit under title 38, regardless of whether the appellant demonstrates an understanding that such a benefit exists or of the technical elements of such a claim”).
The case of Clemons v. Shinseki, 1 Vet.App. 324 (2009) well illustrates these principles. In Clemons, the veteran’s claim only alleged entitled to service-connected post-traumatic stress disorder (PTSD). However, submitted with his claim were medical records, reflecting diagnoses of anxiety disorder and schizoid disorder. The question before the Veterans Court was whether the submission encompassed not only a claim to service-connected PTSD, but also claims to service-connected anxiety and schizoid disorder.
The Court held that the submission included claims for all three disorders, explaining:
Although the appellant's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: 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 the claim. Reasonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him. Id. at 5.