Monday, May 7, 2012

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. 205, 212-14; Implicit Denial, Four Factors

Excerpt from decision below: ""The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision." Adams, 568 F.3d at 961. "[T]he key question in the implicit denial inquiry is whether it would be clear to a reasonable person that [VA's] action that expressly refers to one claim is intended to dispose of others as well." Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010). Although the Board issued its decision after Cogburn had been decided, the Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and explained that "[f]or an 'implicit denial' of an unadjudicated claim, the claim must be closely related to the adjudicated issue." R. at 14. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-910 RONALD FRADKIN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN,Judge: Theproseappellant,Ronald Fradkin,appealsaMarch16,2011, Board of Veterans' Appeals (Board) decision that (1) denied entitlement to an effective date earlier than April 28, 1995, for the award of disability compensation for major depression, and (2) determined that a November 22, 1971, rating decision is final and did not involve clear and unmistakable error (CUE). Record of Proceedings (R.) at 3-30. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant filed a reply brief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to provide an adequate statement of reasons and bases for its determination that the appellant's 1971 application for compensation benefits for a "nervous condition" included reasonably construed claims for chronic anxiety, depressive neurosis, and schizoid personality disorder, and that the November 22, 1971, rating decision implicitly denied the claims for chronic anxiety and depressive neurosis, the Court will vacate the Board's March 16, 2011, decision and remand the matter for further adjudication consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Air Force from June 5, 1967, to January 8, 1971. R. at 1250. In 2002, he was awarded disability compensation for recurrent major depression, effective April 28, 1995, the date of filing of a reopened claim. R. at 613-17, 631-40, 1046-49. The appellant's appeal stems from his disagreement with the assigned effective date. He seeks a January 9, 1971, effective date based on the assertion that his October 4, 1971, claim for disability compensation for a "nervous condition" included claims for benefits based on diagnoses of "chronic anxiety" and "depressive neurosis" that remained pending and unadjudicated since 1971. In the alternative, assuming his 1971 claims were finally adjudicated, he seeks to reverse or revise on the basis of CUE the November 22, 1971, rating decision that denied disability compensation for a "nervous condition." Because this is the third time the appellant's appeal of the effective date decision is before the Court, the Court will not provide a detailed recitation of the facts, except where pertinent to the Court's analysis. See Fradkin v. Shinseki, No. 09-0096, 2010 WL 2316256 (Vet. App. June 9, 2010) (mem dec.); see also Fradkin v. Nicholson, No. 04-730, 2006 WL 3007303 (Vet. App. Sept. 30, 2006) (order). II. ANALYSIS A. Finality of the November 22, 1971, Rating Decision In the March 16, 2011, decision here on appeal, the Board denied entitlement to an effective date prior to April 28, 1995, for an award of disability compensation for major depression. R. at 3- 21. In rendering its decision, the Board determined that (1) the appellant's October 4, 1971, application for compensation benefits for a "nervous condition" is " reasonably construed as a claim for service connection for chronic anxiety, depressive neurosis, and schizoid personality disorder"; (2) although the November 1971 rating decision did not explicitly address chronic anxiety or depressive neurosis, the claims were implicitlydenied in the decision; (3) the December 1971 notice letter informed the appellant that his claim had been denied because his " nervous condition was not considered to be a disability within the meaning of the law"; and (4) "the November 1971 rating decision and the December 1971 notice letter provided notice sufficient enough for the [v]eteran to know that service connection for a psychiatric disorder including chronic anxiety or a depressive 2 neurosis had been denied." R. at 5, 11-17. As a result, the Board concluded that the November 22, 1971, rating decision is final and cannot provide a basis for entitlement to an earlier effective date absent CUE. R. at 17. The Board also rejected the appellant's argument that he was mentally ill and unable to file an appeal timely from the November 22, 1971, rating decision. R. at 17- 19. The Board found that the principles of equitable tolling did not apply to the time for the veteran to perfect an appeal to the Board and, even assuming that they did, (1) there was "no suggestion in the record that the [v]eteran was incompetent for VA purposes or otherwise mentally incapable of pursuing a timely appeal, and (2) the doctrine of equitable tolling cannot apply because the appellant never filed an appeal from the November 1971 rating decision. Id. The appellant argues that the Board erred when it determined that his claims for chronic anxiety and depressive neurosis were implicitly denied by the November 22, 1971, rating decision. Appellant's Brief (Br.) at 8-15. He argues that although the rating decision identified the "issue" as a "nervous condition," the regional office (RO) limited its discussion of the facts to a "schizoid personality disorder." Therefore, because there is nothing in the rating decision or notice of disallowance that refers or alludes to the diagnoses of chronic anxiety and depressive neurosis, the appellant argues there is no reasonable basis for concluding that claims based on these diagnoses were considered and denied.1 Id. at 10-15. The November 22, 1971, rating decision identified the issue as "[s]ervice connection for nervous condition," and found that the "[v]eteran's official [s]ervice [r] ecords show he was observed in August . . . 1968 for an emotional problem and found to have [s]chizoid [ p]ersonality [d]isorder." R. at 1121. The rating decision then states: "Constitutional or developmental abnormality – not a disabilityunderthelaw[.] SCHIZOID PERSONALITY DISORDER." Id. On December 27, 1971, the RO sent the appellant a notice letter, which stated: This will advise you of the decision in your claim for disability. Based upon a complete review of your service records and the other evidence contained in your file, it has been necessary to deny your claim. This denial was based upon a determination that your [n]ervous condition is not considered a disability within the meaning of the law. R. at 1117. 3 1 TheBoardfoundthat the appellant's "October1971claimofserviceconnection foranervous condition included the issues of service connection for schizoid personality disorder, depressive neurosis[,] and chronic anxiety." R. at 13-14 (emphasis added); see Fradkin v. Shinseki, 2010 WL 2316256, at *6 (remanding matter for the Board to make the substantially factual determination whether the appellant's claim for disability compensation for a "'nervous condition' included the issues of 'chronic anxiety' and 'depressive neurosis' or constituted separate claims for 'chronic anxiety' and 'depressive neurosis'" (emphasis added)). In accordance with the Court's decision in Clemons v. Shinseki, 23 Vet.App. 1 (2009), the Board stated that the appellant's application demonstrated that "he was filing a claim for his current psychiatric disorder, although he did not identify a specific clinical diagnosis." R. at 13; see Clemons, 23 Vet.App. at 5-6 (noting that a claimant does "not file a claim to receivebenefits onlyfor a particular diagnosis, but forthe affliction his [ ] condition, whatever that is, causes him" and holding that a single claim for disability compensation can encompass more than one condition). This statement by the Board suggests that the appellant filed one claim for a mental disability and that the RO's adjudication of the claim required it to weigh and assess the nature of the appellant's current condition by considering all potential diagnoses of record to determine whether the appellant's psychiatric disability was related to service. See Clemons, 23 Vet.App. at 5 (when determining the scope of a mental disability claim, the Board must consider "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"). However, in addressing the appellant's argument that "the November 1971 rating decision only denied the claim of service connection for schizoid personality disorder and . . . did not adjudicatetheclaimsforserviceconnection forchronicanxietyanddepressiveneurosis,"theBoard's analysis suggests that it treated the appellant's October 1971 application as having raised three separate claims for disability benefits. R. at 14 (finding that "the claim of service connection for chronic anxiety and depressive neurosis were implicitly denied in the November 1971 rating decision"). In this regard, the Board observed that a claim for benefits may be implicitlydenied, and thus finally adjudicated, even if the rating decision did not explicitly address that claim in its 4 decision. R. at 14 (citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009) and Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006)). "The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision." Adams, 568 F.3d at 961. "[T]he key question in the implicit denial inquiry is whether it would be clear to a reasonable person that [VA's] action that expressly refers to one claim is intended to dispose of others as well." Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010). Although the Board issued its decision after Cogburn had been decided, the Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and explained that "[f]or an 'implicit denial' of an unadjudicated claim, the claim must be closely related to the adjudicated issue." R. at 14. In this regard, the Board found that the appellant's claim for "schizoid personality disorder and the implicit claims of service connection for chronic anxiety and depressive neurosis are closely related since they each may represent a nervous condition as generally claim[ed] by the [v]eteran." R. at 15. The appellant argues that the Board's reason for concluding that his claim for a schizoid personality disorder was closely related to his claims for chronic anxiety and depressive neurosis is incorrect because according to the Diagnostic and StatisticalManual of Mental Disorders (2d ed. 1968) (DSM-II) anxietyand depression areneuroses, and personality disorders are not. See DSM-II at 41 (providing that personality disorders "are characterized by deeply ingrained maladaptive patterns of behavior that are perceptibly different in 5 quality from psychotic and neurotic symptoms"). Thus, although each diagnosis is indicative of a psychiatric disability, they all do not represent "nervous conditions." With regard to the second factor identified in Cogburn, the crux of the appellant's argument is that the RO failed to discuss the claims for chronic anxiety and depressive neurosis in terms sufficient to put him on notice that theywere being considered and denied because neither the rating decision nor the notice letter discussed either diagnosis or evidence related these diagnoses (e.g., postservice hospital treatment records and a January 6, 1970, service medical record). Appellant's Br. at 10-15. He persuasivelyargues that unlike Deshotel, supra, where the RO stated that there was "no psychiatric symptomatology," and Adams, supra, where the RO stated that it "had considered his affidavit," it would have been illogical for him to conclude that anything other than a schizoid personality disorder was considered. Id. In response, the Secretary argues that "[b]ecause the competing diagnoses were predicated upon the same symptomatology, [the a] ppellant should have recognized that the denial of entitlement as to one psychiatric diagnosis was, effectively, a denial as to all." Secretary's Br. at 13. The Secretary's argument is not availing because he does not provide any support for his assertion that the competing diagnoses are based on the same symptomatology and it was not the basis provided by the Board for its determination that the rating decision and notice letter provided "notice sufficient enough for the [v]eteran to know that service connection for a psychiatric disorder including chronic anxiety or a depressive neurosis had been denied." R. at 17; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L] itigation positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court."). The Board stated: Clearly, on this record, the RO found that the current nervous condition was diagnosed as a schizoid personality disorder and denied the [v]eteran's claim on the basis that it was not considered to be a disease or injury under the applicable legislation. Such language, thus, informed the [v]eteran that the RO had determined that he did not have either a specific anxiety disorder or depressive neurosis that was present in or could be linked to service. To the extent that the [v]eteran did not identify any specific psychiatric diagnosis in connection with his initial claim, it would be reasonable that VA did not . . . 6 expressly discuss an innocentlyacquired psychiatric disorder in connection with that decision. R. at 15. Despite the apparent clarity that the Board discerns from the 1971 rating decision, it remains entirely unclear to the Court what information in the rating decision the Board regards as alluding to the appellant's overall psychiatric disabilityin such a waythat the appellant reasonablycould have inferred that the RO determined he did not have a specific anxiety disorder or depressive neurosis that was present in or could be linked to service. See Adams, 568 F.3d at 963 (finding that a Board decision that noted it reviewed all the medical reports and the affidavit, and concluded that the evidence did not disclose active rheumatic fever or other cardiac pathology during service, "'reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied'" (quoting Adams v. Peake, No. 06-0095, 2008 WL 2128005, slip op. at 6 (Vet. App. Feb. 20, 2008) (emphasis added)) and (finding the facts in Deshotel similar because " the regional office noted, when it granted [VA benefits] for a head injury, that the claimant's medical examination showed no evidence of psychiatric symptom[s]," and "[u]nder those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric disorder was denied")); cf. Ingram, 21 Vet.App. at 247-48 (finding that "when Mr. Ingram was informed that his claim for pension benefits was denied because his condition was 'not established as permanent,' he had no reason to know how a disability compensation claim based on section 1151 might have been decided by the regional office"). Because the notice documents relied upon by the Board fail to mention either diagnosis, or the evidence related thereto, and, unlike a schizoid personality disorder, anxiety disorders and depressive neurosis are compensable disabilities, the Board needs to explain what "language" reasonably put the appellant on notice that the RO determined he did not have an anxiety disorder or depressive neurosis. Compare 38 C.F.R. § 3.303(c) (1971) (providing that "personalitydisorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation" and, therefore, are not compensable) with 38 C.F.R. § 4.132, Diagnostic Codes 9400 (anxiety reaction), 9405 (depressive reaction) and 9406 (providing the general rating formula for psychoneurotic disorders) (1971); see also Cogburn, 24 Vet.App. at 216 (instructing the Board to 7 consider on remand "whether a reasonable person would have been put on notice that his 1974 claim for a 'severe nervous condition' and any informal claim for schizophrenia were adjudicated by the November 1985 Board decision that denied compensation benefits for post- traumaticstressdisorder [(PTSD)]" based on legal criteria unique to PTSD). Although the Court is mindful of the lengthy procedural history of this case, the Court nonetheless concludes that the Board's failure to provide an adequate statement of reasons or bases frustrates judicial review. Therefore, remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, the Board must discuss the four factors identified in Cogburn, supra, in determining whether the appellant's 1971 claim was finally adjudicated in the November 22, 1971, rating decision. Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. Nonetheless, the Court notes that the appellant argues here on appeal that as a result of his mental impairment in 1971, he would not have been able to infer that his claims were implicitly denied in the November 1971 rating decision. Appellant's Br. at 15-20. In essence, he argues that notice that "requires the analytical skills of a 'reasonable' person is inadequate to inform one whose ability to think rationally is impaired." Id. at 17; see Adams, 568 F.3d at 961 ("[T]he implicit denial rule is, at bottom, a notice provision."); Thurber v. Brown, 5 Vet.App. 119, 123 (1993) ("The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). Although the Court will not address this argument in the first instance, the Court observes that the Board stated that "[t]here is no suggestion in the record that the [v]eteran was incompetent for VA purposes or otherwise mentally incapable of pursuing a timely appeal" in 1971. R. at 18. As noted by the appellant (Appellant's Br. at 19), the record contains a letter from his treating psychotherapist who opined, based on the appellant's mental condition in 1971, that he "could not have proactively 8 responded to VA's denial of his claim." R. at 551-53. This is potentially favorable evidence that the Board must weigh and assess when considering the appellant's arguments. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). B. CUE in the November 22, 1971, Rating Decision Because the appellant's assertion of CUE in the November 22, 1971, rating decision is inextricably intertwined with the question whether the rating decision implicitly denied claims for "chronic anxiety" and "depressive neurosis" or whether the claims have remained pending since 1971, the Court will also vacate the Board's determination that there was no CUE in the November 22, 1971, rating decision. See Harris v. Derwinski, 1 Vet.App. 180, 183 ( 1991) (holding that where a decision on one issue could have a "significant impact" upon another, the two claims are inextricably intertwined),overruled on other grounds by Tyrues v.Shinseki, 23 Vet. App.166(2009). In pursuing these matters on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's March 16, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: May 1, 2012 9 Copies to: Ronald Fradkin VA General Counsel (027) 10