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 United States Court of Appeals for the Federal Circuit

                                       05-7089



                               PATRICK D. MacPHEE,

                                                      Claimant-Appellant,

                                           v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.




      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

       Thomas B. Fatouros, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Bryant G. Snee, Assistant Director. Of counsel were
Kathryn A. Bleecker, Assistant Director, David B. Stinson and Michael D. Austin, Trial
Attorneys. Of counsel on the brief were Richard J. Hipolit, Assistant General Counsel,
and Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of Washington,
DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit

                                          05-7089

                                 PATRICK D. MacPHEE,

                                                         Claimant-Appellant,

                                             v.

                 R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                       Respondent-Appellee.

                            _______________________

                             DECIDED: August 15, 2006
                            _______________________


Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and RADER, Circuit
Judge.

ARCHER, Senior Circuit Judge.

      Patrick MacPhee (“MacPhee”) appeals the United States Court of Appeals for

Veterans Claims’ (“Veterans Court”) affirmance of the Board of Veterans’ Appeals’

(“Board”) determination that MacPhee’s 1988 medical records did not constitute an

informal claim for increased disability benefits. MacPhee v. Principi, No. 01-918 (Vet.

App. Oct. 22, 2004). Because the condition disclosed in MacPhee’s medical records

had not previously been claimed, or determined to be service connected, such records

do   not   satisfy   the   regulatory   requirements    of   an   informal   claim.   See

38 C.F.R. § 3.157(b)(1) (2000). Accordingly, we affirm the Veterans Court.
                                           Background

       MacPhee served on active duty from June 1969 to January 1972.                    On

November 9, 1982, the Regional Office (“RO”) of the Veterans Administration (“VA”)1

awarded MacPhee service connection for post traumatic stress disorder (“PTSD”) and

assigned a 30% disability rating, effective July 19, 1982. Subsequently, the VA reduced

MacPhee’s disability rating for PTSD to 10%, effective February 1, 1986.

       In August of 1988, MacPhee was hospitalized in a VA medical center due to

excessive drinking and anxiety. Treatment records from that period of hospitalization

reflect a clinical psychologist’s opinion that “[t]he most likely diagnosis appear[ed] to be

[PTSD], secondary to Vietnam,” and that MacPhee had “severe problems related to [his

PTSD].” The psychologist opined that “it [did] not appear likely . . . that [MacPhee

would] be able to maintain sobriety unless he [was] able to deal with the symptoms of

[PTSD] that he [was] experiencing.” According to his discharge summary, dated in

September 1988, MacPhee had been diagnosed as having PTSD and “[a]lcohol

[d]ependence, [c]ontinuous.”

       In June and August of 1989, the RO continued the 10% disability rating for

MacPhee’s service-connected PTSD. Three years later, MacPhee sought an increase

in his disability compensation for PTSD. The VA granted an increase to 50% and

subsequently increased the disability rating for PTSD to 100%, effective April 20, 1992.

       In October 1997, MacPhee contended to the VA that, among other things, he

was entitled to a decision “based upon the unadjudicated informal claim raised by the

[1988 VA medical records] for . . . entitlement to alcohol [dependence] as secondary to



       1
              Now the Department of Veterans Affairs.


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[his] service[-]connected [PTSD].”2 The RO denied MacPhee’s claim, and he appealed

to the Board. The Board similarly denied MacPhee’s claim and noted that “there was

neither a prior allowance nor a disallowance for the condition [of alcohol dependence] at

the time of the completion of the 1988 medical records” and that the records thus could

not “constitute an informal claim under [38 C.F.R. § 3.157].”

       MacPhee appealed this decision to the Veterans Court, which affirmed the

Board’s decision. Relevant to this appeal, the Veterans Court explained that “because

MacPhee had not previously filed a claim for service connection for [his alcohol

dependence], medical records could not constitute an informal claim under

38 C.F.R. § 3.157.” MacPhee, slip op. at 7. The Veterans Court also denied McPhee’s

requests that the VA provide him with a second complete copy of his claims file without

charge and that the entire claims file be transmitted as the record on appeal.

       MacPhee challenges these determinations.         We have jurisdiction pursuant to

38 U.S.C. § 7292(c).

                                           Discussion

       We must “hold unlawful and set aside any regulation or any interpretation thereof

. . . relied upon in the decision of the Court of Appeals for Veterans Claims [that is]

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of

statutory jurisdiction, authority, or limitations or in violation of a statutory right; or

(4) without observance of procedure required by law.” 38 U.S.C. § 7292(d)(1).




       2
               An adjudication in MacPhee’s favor on the purported informal claim could
result in additional disability benefits effective August 1988 through April 1992.


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       At issue in this case is whether the Veterans Court correctly interpreted

regulations relating to the filing of informal claims, specifically 38 C.F.R. § 3.155(a) and

38 C.F.R. § 3.157(b)(1). While both regulations govern the filing of informal claims, the

types of informal claims each supports is different. Section 3.155(a) is directed to an

original informal claim and requires the informal claim “identify the benefit sought” and

“indicat[e] an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a) (2000).3 In

addition, a formal claim form must be executed and filed within one year after it is sent

by the VA to the claimant. Section 3.157(b)(1), on the other hand, is directed to an

informal claim to increase or reopen a previous compensation determination and

permits a medical report to be considered such an informal claim when the report

relates to a disability for which service connection has previously been established.

38 C.F.R. § 3.157(b)(1).

       MacPhee argues that the Veterans Court misinterpreted 38 C.F.R. § 3.157(b)(1)

when it failed to remand for adjudication an alleged informal claim raised by his 1988

medical records for increased disability benefits due to alcohol dependence as

secondary to service-connected PTSD.          Specifically, MacPhee contends that the

       3
              Section 3.155(a) of Title 38 of the Code of Federal Regulations states:

       Any communication or action, indicating an intent to apply for one or more
       benefits under the laws administered by the Department of Veterans
       Affairs, from a claimant, his or her duly authorized representative, a
       Member of Congress, or some person acting as next friend of a claimant
       who is not sui juris 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.

38 C.F.R. § 3.155(a).


05-7089                                      4
Veterans Court mistakenly applied 38 C.F.R. § 3.155 instead of § 3.157(b)(1) and

argues that 38 C.F.R. § 3.157(b)(1) “effectively makes a VA medical record an informal

claim.” We disagree.

      The Veterans Court concluded that the medical reports at issue were not

sufficient to state an original informal claim under § 3.155(a), explaining that “medical

evidence reflecting treatment for and diagnoses of an alcohol-related problem is not

sufficient to indicate an intent to apply for secondary service connection for alcohol

dependence or to identify the benefit sought.”        MacPhee, slip op. at 7.       This

determination was based on the Veterans Court’s decision in Brannon v. West, 12 Vet.

App. 32 (1998). In Brannon, the court held that medical evidence did not constitute an

informal original claim under § 3.155(a) for secondary service connection for a

psychiatric condition, because “[t]he mere presence of the medical evidence does not

establish an intent on the part of the veteran to seek secondary service connection for

the psychiatric condition.”   Id. at 35.    The Veterans Court also concluded that

MacPhee’s medical records were not an informal claim for an increase in benefits under

§ 3.157(b)(1), because “MacPhee had not previously filed a claim for secondary service

connection for [alcohol dependence].” MacPhee, slip op. at 7. Thus the Veterans Court

did not apply § 3.155(a) instead of § 3.157(b)(1); rather it examined whether MacPhee’s

medical reports could be considered an informal claim under either provision.

      MacPhee’s argument that the Veteran’s Court misinterpreted § 3.157(b)(1)

appears to be based on the position that medical records can be an informal claim

under § 3.157(b)(1) without first claiming service connection and benefits for the




05-7089                                    5
disability disclosed in such records. This interpretation contradicts the plain language of

the regulation.

       An informal claim under 38 U.S.C. § 3.157(b)(1) is a claim to increase or reopen

a disability determination. See 38 U.S.C. § 3.157(b)(1) (entitled “Report of examination

or hospitalization as claim for increase or to reopen”). Any such informal claim must be

for a condition that not only has been the subject of a prior claim, but the condition must

also have been previously found to be service connected:

         (b) Claim. Once a formal claim for pension or compensation has been
       allowed or a formal claim for compensation disallowed for the reason that
       the service-connected disability is not compensable in degree, receipt of
       one of the following will be accepted as an informal claim for increased
       benefits or an informal claim to reopen. In addition, receipt of one of the
       following will be accepted as an informal claim in the case of a retired
       member of a uniformed service whose formal claim for pension or
       compensation has been disallowed because of receipt of retirement pay.
       The evidence listed will also be accepted as an informal claim for pension
       previously denied for the reason the disability was not permanently and
       totally disabling.
         (1) Report of examination or hospitalization by VA or uniformed services.
       The date of outpatient or hospital examination or date of admission to a
       VA or uniformed services hospital will be accepted as the date of receipt
       of a claim. The date of a uniformed service examination which is the basis
       for granting severance pay to a former member of the Armed Forces on
       the temporary disability retired list will be accepted as the date of receipt
       of claim. The date of admission to a non-VA hospital where a veteran was
       maintained at VA expense will be accepted as the date of receipt of a
       claim, if VA maintenance was previously authorized; but if VA
       maintenance was authorized subsequent to admission, the date VA
       received notice of admission will be accepted. The provisions of this
       paragraph apply only when such reports relate to examination or
       treatment of a disability for which service-connection has previously been
       established or when a claim specifying the benefit sought is received
       within one year from the date of such examination, treatment or hospital
       admission.

38 C.F.R. § 3.157(b)(1) (emphases added). Thus, on its face, this regulation makes

clear that a medical examination report will only be considered an informal claim for an




05-7089                                     6
increase in disability benefits if service connection has already been established for the

disability.

        At the time of his hospitalization in 1988, MacPhee had never filed a claim for

service connection for alcohol dependence; nor had a pension or compensation

otherwise been allowed or disallowed based on MacPhee’s alcohol dependence being

service connected. Similarly, there had been no claim or allowance or disallowance for

alcohol dependency as a condition secondary to MacPhee’s PTSD. Thus, we cannot

say that the Veterans Court improperly interpreted 38 C.F.R. § 3.157 when it

determined that MacPhee’s 1988 medical records did not constitute an informal claim

for increased compensation due to alcohol dependence.

        MacPhee also appears to argue in this appeal that 38 C.F.R. § 3.3104 (the

regulation governing secondary conditions) together with 38 C.F.R § 3.157(b)(1) and

the VA’s obligation to determine all potential claims raised by the evidence can operate

to create an informal claim out of a “potential claim” for increased disability due to

MacPhee’s alcohol dependence. Under § 3.310, a condition that is proximately caused

by a service-connected condition is considered a part of the original condition. Under

the regulation, proximate causation must be “established.” This regulation is unavailing

here because there has been no claim or determination that MacPhee’s alcohol




        4
              In relevant part, 38 C.F.R. § 3.310(a) states:

        [d]isability which is proximately due to or the result of a service-connected
        disease or injury shall be service connected. When service connection is
        thus established for a secondary condition, the secondary condition shall
        be considered a part of the original condition.

38 C.F.R. § 3.310(a).


05-7089                                      7
dependence is “proximately due to or the result of” his PTSD.             Thus, the alcohol

dependence cannot be viewed as a part of MacPhee’s original claim for PTSD.

       Similarly, MacPhee’s assertion that the VA must give a sympathetic reading to a

veteran’s claim by determining all potential claims raised by the evidence is unhelpful to

his cause. Even if the medical reports are read as suggesting that MacPhee’s alcohol

dependence was caused by his PTSD, the reports themselves cannot be considered an

informal claim for an increase in benefits due to alcohol dependence. Again, under

§ 3.157(b)(1) a medical report will only be considered an informal claim “when such

report[ ] relate[s] to examination or treatment of a disability for which service-connection

has previously been established.” § 3.157(b)(1); see Crawford v. Brown, 5 Vet. App.

33, 35-36 (1993) (stating “[i]n the instant case, there has not been a prior allowance or

disallowance of a formal claim for compensation or pension. Therefore, the veteran’s

hospitalization   report   could   not   be   accepted    as   an   informal   claim   under

38 C.F.R. § 3.157.”); see also Adjudication Procedure Manual Rewrite: M21-MR, Part

III, Subpart ii, Chapter 2, Section D “Claims Based on Reports of Examination or

Hospitalization” (2004) (stating “Note: A notice of hospitalization may not suffice as an

informal claim if a veteran that is [service connected] for one disability is hospitalized for

a different disability for which service connection has not been granted.”). Because

there is no evidence that service connection had been claimed or established for

alcohol dependence prior to the 1988 reports, we cannot say the Board misinterpreted

§ 3.157(b)(1).




05-7089                                       8
       Finally, as to MacPhee’s assertion that the Veterans Court misinterpreted Rules

10 and 11 of its Rules of Practice and Procedure, we discern no reversible error in the

court’s decision.

                                       Conclusion

       For the reasons set forth herein, the judgment of the Veterans Court is

                                      AFFIRMED.




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