## Facts

- Leroy Comer, a Vietnam veteran, served on active duty from 1967–1970 and alleged combat-related stressors while guarding an ammunition depot in Vietnam.
- On December 29, 1988, Comer filed a pro se VA claim seeking service connection for PTSD, alleging nightmares, depression, and headaches.
- After later proceedings, Comer sought to reopen his PTSD claim on February 26, 1999; the Board found new and material evidence and the RO granted service connection for PTSD effective February 26, 1999.
- Comer contested the effective date and the level of compensation, seeking a higher rating and an effective date back to 1988.
- During the pendency of the appeal, a May 5, 2004 VA examination documented PTSD and significant employment instability, including lack of a stable job.
- After the examination, the RO increased Comer’s PTSD rating to 70% and awarded total disability based on individual unemployability (TDIU), both effective May 5, 2004.
- The Board denied a higher PTSD rating for February 1999–May 2004 and denied an earlier effective date for service connection, reasoning in part that Comer had not specifically alleged clear and unmistakable error (CUE) in the earlier decision.
- The Veterans Court held Comer had not properly raised entitlement to an earlier effective date for TDIU and therefore did not reach that issue on the merits.
- Comer appealed to the Federal Circuit, arguing the Veterans Court misapplied governing law requiring sympathetic construction of pro se filings.

## Issues

1. Whether VA’s duty to sympathetically construe a pro se veteran’s submissions applies on appeal to the Board, such that a reasonably raised TDIU claim must be addressed even if not expressly pleaded.
2. Whether limited assistance from a Veterans Service Organization at the Board stage negates a veteran’s pro se status for purposes of liberal construction.
3. Whether VA must notify a claimant that a CUE motion is required to obtain retroactive benefits back to an earlier final decision.

## Decision

- The Federal Circuit reversed the Veterans Court’s judgment and remanded for further proceedings.
- The court held the Veterans Court misinterpreted Federal Circuit precedent on liberal construction of pro se veterans’ filings.
- The court held VA must sympathetically and fully construe pro se filings at the Board-appeal stage, not only at the initial agency stage.
- The court held that when a pro se veteran seeks an increased rating and the record contains cogent evidence of unemployability, a TDIU claim is reasonably raised and must be considered, including its effective date.
- The court held Comer remained pro se despite limited VSO assistance; such assistance was insufficient to amount to attorney representation.
- The court discussed, but did not definitively resolve, any separate VA notice obligation concerning the need to file a CUE motion to obtain retroactive benefits.

## Legal Principles

- VA must sympathetically and fully construe pro se veterans’ filings to identify and develop all claims reasonably raised by the evidence, consistent with the nonadversarial character of the benefits system.
- The obligation to liberally construe pro se submissions applies at the Board stage of adjudication, including in the framing of issues on appeal.
- A TDIU claim is reasonably raised when a pro se claimant seeks a higher disability rating and submits (or the record contains) cogent evidence of unemployability, even without an explicit request for TDIU.
- Limited assistance from a Veterans Service Organization does not, by itself, strip a claimant of pro se status for purposes of sympathetic construction.

## Conclusion

The Federal Circuit required VA and reviewing tribunals to liberally construe pro se filings through the Board-appeal stage and to treat TDIU as raised when an increased-rating claim is accompanied by record evidence of unemployability, reversing the Veterans Court’s contrary approach and remanding for consideration consistent with that rule.


Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)