Duty to Maximize Avoidance: Mr. Hoffman and VA’s Intent to File Letter

There is a rule in Veterans law that VA is supposed to read a claim for the most it can give, not the least, the VA’s Duty to Maximize. Well, recently the Court of Appeals for Veterans Claims took a look at what VA actually does with an intent to file and found something closer to the opposite. One judge went further and said the plain truth: the letter VA sends you after you file an intent to file is misleading, and it cost this Veteran five months of back pay.

The part of the bargain the Veteran already kept. A crew chief refuels a Huey. The work that earns the claim comes first; the paperwork that has to prove it comes decades later.

The case is Hoffman v. Collins, No. 24-7834, decided August 24, 2026. Judge Falvey wrote for a panel with Judges Pietsch and Jaquith. Judge Jaquith concurred in the judgment and then wrote eleven pages that I would like every rater at the VA to read, and a few Board judges for that matter.

First, the Thing Everybody Says VA Is Supposed to Do

Veterans law has a principle behind it that was set in stone in the early years of the Veterans Court’s creation. Remember, the CAVC is a young Court compared to other judiciaries. Still, one of the first cases they squared up has been set in stone for now over 20+ years. A Veteran who files is presumed to be seeking the maximum benefit the law allows. Nobody files a claim hoping for the smaller check. VA is supposed to read what you send it generously, develop it sympathetically, and give you everything the record supports.

That is the duty to maximize.

What Hoffman describes is a system running the other direction. Not out of malice, I expect. Out of a regulation nobody thought through and a form letter nobody rewrote.

What Happened to Robert Hoffman?

Here is the sequence, and I want you to watch the dates, because the dates are the whole case.

On February 28, 2023, Mr. Hoffman filed an intent to file. That is VA Form 21-0966, and the entire point of it is to stop the clock. File the ITF, then you have a year to get the real claim in, and when you do, your effective date reaches back to the ITF date. A big smoke signal to the VA, I am filing a claim and letting you know!

On March 2, 2023, the Regional Office director wrote him a letter. More on that letter in a minute, because it is the reason I am writing this.

In May 2023, he filed a supplemental claim for kidney disease, hearing loss, and Meniere’s disease. It was what the law calls continuously pursued, meaning it was filed within a year of a prior denial. In other words, if he succeeded on the May 2023 claim, he was gonna get backpay dating back to the original claim, i.e., prior to the ITF. The ITF was for some new claims he was planning on filin’.

On July 21, 2023, he filed the VA Form 21-526EZ the letter had told him to file, for stroke residuals and erectile dysfunction. His cover letter said, pretty plainly, please tie this to my intent to file:

HOFFMAN COVER LETTER, JULY 21, 2023 (R. AT 2316)Please establish this claim in association with the February 28, 2023 Intent to File.

VA said no. Under 38 C.F.R. § 3.155(d)(1)(ii), VA takes the position that an intent to file attaches to the first complete claim that comes in after it. The May supplemental claim got there first. So, the ITF was nothing but a spent shell casing. Gone. Mr. Hoffman got a July 21, 2023, effective date instead of February 28, 2023.

Nearly five months, for the sin of filing two things in the wrong order.

Nobody files an intent to file for the fun of it. A claim is the back end of something that happened a long time ago, in worse conditions, for less money.

The Regulation That Eats Your Intent to File

The Court’s holding is narrow, and it is correct.

Congress already protects a continuously pursued supplemental claim. Under 38 U.S.C. § 5110(a)(2), that claim is treated as filed on the date of the original application. An ITF cannot possibly improve on that. So, when VA staples the ITF to a supplemental claim, the Veteran gains exactly nothing and loses the ITF for the claim he actually wanted it for.

The panel said so:

HOFFMAN V. COLLINS, SLIP OP. AT 15-16 (FALVEY, J.)Those veterans have no way to file both a supplemental claim and an ITF while still using their full one-year filing. . . . [This] strikes us as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." . . . [It] is exactly the kind of arbitrary line-drawing that the Federal Circuit struck down in MVA.

So, VA may no longer burn an ITF on a continuously pursued supplemental claim when doing so buys the Veteran nothing. Mr. Hoffman’s stroke residuals denial was reversed outright with a February 28, 2023, effective date. The erectile dysfunction and special monthly compensation pieces went back for another look.

Good. That is a real win and I do not want to undersell it.

But the holding only cleans up one corner of a problem that starts somewhere else entirely.

What About That Letter?

Here is what the Regional Office told Mr. Hoffman two days after his intent to file landed:

RO DIRECTOR’S LETTER, MARCH 2, 2023 (R. AT 2429)We received your intent to file on February 28, 2023. . . . In order for us to begin processing your claim for compensation, you must complete, sign, and return a VA Form 21-526EZ. . . . We will take no further action until we receive your completed application.

Read it twice. Then ask yourself what a reasonable person does with that information.

Notice that technically exists. Somebody put a sign on the tank, checked the box, and went home. VA’s intent to file letter is the same genre.

He does exactly what Mr. Hoffman did. He goes and gets the 21-526EZ. And in the meantime, if he has a supplemental claim with a deadline running on it, and plenty of Veterans do, because the supplemental claim window and the ITF window run at the same time, he files that too, because why on Earth would those two things interfere with each other?

Nothing in that letter says they would.

The letter does not say that the intent to file will attach to whatever complete claim arrives first. It don’t say that a supplemental claim counts as a complete claim for that purpose. It don’t say that filing a supplemental claim in the meantime will spend the ITF and leave nothing for the 526EZ VA just told you to send. It don’t tell you to file the 526EZ first. It don’t tell you anything at all about the one thing that was about to cost Mr. Hoffman five months of money.

Judge Jaquith, truly a great scholar, put it about as flatly as a judge can:

HOFFMAN V. COLLINS, SLIP OP. AT 27 (JAQUITH, J., CONCURRING)In directing the veteran to file a VA Form 21-526EZ to associate his disability compensation claim with his ITF . . . with no mention of any other possibility, including that VA might use the ITF on a supplemental claim . . . [the letter] was indeed misinformative and misleading, preventing the veteran from making an informed decision.

And there is a footnote in that concurrence worth the whole opinion. Judge Jaquith observes that the March 2023 letter “reflected VA’s policy and practice to require specific forms but not furnish them.” VA told the man to file a form and did not send him the form.

Here is the part that ought to bother you most. The Secretary’s own brief called the letter “potentially misinformative.” Judge Jaquith reads that the way I read it, not as a defense, but as an admission. VA knew the regulation. VA wrote the letter anyway. VA then held the Veteran to the consequence of following it.

That is not a drafting accident. That is a duty to minimize.

Fairness Is Still a Rule…Maybe?

This is where Hoffman turns into something bigger than one man’s effective date, and it is why I am not treating this as a routine case note.

For thirty years this Court has had a doctrine called fair process. It comes out of Thurber v. Brown and Austin v. Brown, and it rests on a Supreme Court line about procedural regularity and basic fair play. It is the reason VA cannot spring evidence on you, cannot tell you one thing and do another, and has to give you notice that is actually accurate. Percy v. Shinseki said it in nine words that belong on a poster at your local VAMC: Veterans may expect VA to mean what it says.

Last year, in Bilharz, a majority of this Court said fair process is “coextensive” with constitutional due process. In Hoffman, the majority put it this way, the fair process doctrine “is not a license to invent rights; it is a recognition that due process applies to the VA claim system.”

Judge Jaquith weren’t having it. He points out that the Bilharz opinion itself disclaimed overruling anything, that under Bethea v. Derwinski only the en banc (meaning all judges of the Court) Court can overturn a panel decision, and that the statement is dicta besides. His conclusion:

HOFFMAN V. COLLINS (JAQUITH, J., CONCURRING)[T]he significant conflict between the majority’s declaration and this Court’s precedent is unmistakable. . . . In this circumstance, the Court’s fair process precedent continues to prevail.

Then he ran the constitutional analysis anyway, under Mathews v. Eldridge, and came out where anybody with any sense comes out:

HOFFMAN V. COLLINS, SLIP OP. AT 29 (JAQUITH, J., CONCURRING)In this case, there is no real balancing to be done. . . . Misleading notice led to erroneous deprivation of the ITF-set effective date[.] . . . [Accurate notice] is less burdensome for VA than misleading notice and the subsequent proceedings it begets.

Read that last part again. Writing a correct letter is cheaper than litigating the wrong one for three and a half years. Lol. VA spent more cash defending this letter than it would have cost to fix it.

One Last Thing

I want to be fair about what this opinion is and is not.

The majority gave Mr. Hoffman his February 2023 effective date and struck down an application of the regulation that never made sense. That is the holding, and it will help people.

But the majority also walked past the thing that caused all of it. A Veteran did precisely what his government told him to do, in writing, and his government then charged him five months of benefits for doing it. The Court reached that result through the regulation rather than through the letter, which means the letter is still out there, still going out to Veterans this week, still not mentioning the one fact that matters.

Filling sandbags because somebody said to fill sandbags. Veterans are good at doing what they are told. That is exactly what makes a misleading instruction so expensive.

So, it took a concurrence to say it. That is usually how this goes. Somebody writes separately, and a few years later it turns out he was describing the law the whole time.

In the meantime, the duty to maximize is still on the books. Somebody ought to tell the mailroom.

Gotta run. Gotta cut a check for a filing fee for a new suit, and I ain’t talkin’ a 3-piece.

Godspeed.