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11.3. Informal VA Claims

Any written communication from a claimant that indicates an intent to apply for an identified benefit may be considered an informal claim. See Norris v. West, 12 Vet. App. 413, 421 (1999); 38 C.F.R. § 3.155(a).  Even an informal claim for benefits must be in writing.  Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999); Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[I]ntent to apply for benefits is an essential element of any claim, whether formal or informal, ... the intent must be communicated in writing.").  There are three requirements that must be satisfied if the Board is to find that an informal claim has been filed.  There must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See Brokowski, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.155(a). 


Moreover, in identifying the benefit sought, the Court has stated that although VA "has no duty to read the mind of the claimant" and VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Thus, VA must consider claims that may be "reasonably encompassed by several factors including:  the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim."  Id.  Accordingly, unless the evidence of record demonstrates the claimant's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability does not raise an informal claim for such benefits.  See Criswell v. Nicholson, 20 Vet. App. 501, 503–04 (2006). 


A VA medical report can qualify as an informal claim when ... a claimant's formal claim for compensation has already been allowed, receipt of ... a VA report of examination will be accepted as an informal claim filed on the date of the examination."  38 C.F.R. § 3.157(b); Servello v. Derwinski, 3 Vet. App. 196, 198, 200 (1992); Norris v. West, 12 Vet. App. 413 (1999).  The Board's determination of whether an informal claim has been filed is a mixed question of law and fact subject to review by this Court under the deferential "arbitrary" and "capricious" standard prescribed in 38 U.S.C. § 7261(a)(3)(A).  Westberry v. West, 12 Vet. App. 510, 513 (1999); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (remanding for a factual inquiry into "whether the [Board], as required by Roberson, sympathetically read [the veteran's] filings prior to [the assigned effective date] in determining whether [the veteran] made an informal claim"); Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) ("the question of whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry").  


In addition, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability.  38 C.F.R. § 3.157(b); see Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).  A medical report will be considered an informal claim only "when such report [] relate[s] to examination or treatment of a disability for which service-connection has previously been established."  MacPhee, 459 F.3d at 1328 (quoting 38 C.F.R. § 3.157(b)(1)).  The determination of whether an informal claim has been filed is a substantially factual determination that the Court reviews under the "clearly erroneous" standard of review.  Brokowski, 23 Vet. App. at 85; see 38 U.S.C. § 7261(a)(4); Ellington v. Nicholson, 22 Vet. App. 141, 144 (2007), aff'd, 541 F.3d 1364 (Fed. Cir. 2008).  Because medical records documenting symptoms alone cannot, as a matter of law, raise initial claims for VA benefits for conditions characterized by symptoms, VA is not obligated to consider this possibility.  Criswell, 20 Vet. App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring VA to consider only the "material issues of . . . law presented on the record").


The Court has determined that "whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry."  Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) (citing Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004)). The Board's determination of the actual date an informal claim was filed is also a factual finding subject to review by this Court under the "clearly erroneous" standard.  See 38 U.S.C. § 7261(a)(4); Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Stewart v. Brown, 10 Vet. App. 15, 17 (1997); KL v. Brown, 5 Vet. App. 205, 207 (1993); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992)); Nitsch v. Nicholson, 23 Vet. App. 504 (2007).

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