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

Single Judge Application, Attorney Resentation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)

Excerpt from decision below: "This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)" ======================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1917 PAULINE C. BAKER, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Pauline C. Baker appeals through counsel a May 19, 2010, Board of Veterans' Appeals (Board) decision that reopened but denied a claim for entitlement to dependency and indemnity compensation. Mrs. Baker's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues theybelieve require a precedential decision of the Court. Because the Board failed to adjudicate all theories of entitlement reasonably raised by the record, the Court will vacate the May 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Mrs. Baker is the widow of veteran Richard J. Baker, who served on active dutywith the U.S. Navy from November 1962 to November 1966 and from May 1967 to December 1973. No abnormalities were noted at Mr. Baker's entrance examination. Service treatment records from December 1968 indicate that Mr. Baker twice sought treatment for headaches described as "persistent" and "frequent." Record (R.) at 208, 210. Similarly, a May 1971 service treatment note reflects Mr. Baker's complaints of headaches every other day that localized near the left temple and caused a pain that started as a dull ache but would get sharper. In June 1973, he again sought treatment for dizzy spells, sudden lightheadedness, and headaches. Post-service medical records from Air Force and Naval hospitals where Mr. Baker sought treatment between February 1976 and February 1987 indicate continued complaints of headaches and migraines, often described as vascular and persistent, recurring, or experienced for many years. In early March 1987, Mr. Baker was admitted to an Air Force medical center emergency room with recent symptoms of headaches, confusion, disorientation, lethargy, nausea, and slurred speech. A history of migraine headaches with an onset in 1972 was noted. Mr. Baker died on May 5, 1987. The immediate cause of death was presumed to be a midbrain tumor. Following an autopsy, however, the death certificate was amended to change the immediate cause of death to a stroke due to or a consequence of a vascular malformation. Major diagnoses at that time were "[m]arked diffuse autolytic change - brain ( 'Respirator Brain'), "[h]erniation of[the]midbrain,brainstem,cerebellartonsils,"and"[p]neumonia [ of the] right middle lobe." R. at 1097. In the autopsy report, the examiner stated that [g]ross examination of the optic chiasm[1 ] showed a web of anastomosing[2 ] small vessels surrounding it. Several of these were thrombosed.[3 ] The gross and microscopic appearance of these vessels was consistent with cerebral arterial occlusive disease. This is a rare disorder of uncertain etiology marked by occlusion of the main branches of the carotid artery with formation of collateral vessels. R. at 1099. The examiner explained that this rare disorder was known as Moyamoya Disease and that, although it was more prevalent in children, it was also known to occur in adults. He explained that "[t]he characteristic presentation in the adult patients was a sudden alteration in consciousness frequently associated with a massive subarachnoid bleed from the ruptured collaterals," and opined that "[t]his was probably the case with Mr. Baker." R. at 1099. The optic chiasm is "the part of the hypothalamus formed by the decussation, or crossing, of the fibers of the optic nerve from the medial half of each retina." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 342 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Anastomosis is "a connection between two vessels." DORLAND'S at 75. Thrombosis is "the formation, development, or presence of a thrombus." DORLAND'S at 1923. A thrombus is "a stationary blood clot along the wall of a blood vessel, frequently causing vascular obstruction." Id. 3 2 The examiner noted that Mr. Baker "had a history of migra[i]ne headaches that date[d] back to 1972," and that this history "suggest[ed] the presence of altered vascular reactivity." R. at 1099. The examiner also noted that Mr. Baker "had a history of smoking three to four packs of cigarette[s] per day for in excess of [25] years," which was "clinically significant in that smokers under 65 years have twice the death rate from coronary arterial occlusive disease than non-smokers." R. at 1098. The examiner then summarized his findings: "[T]he anatomic findings are consistent with a dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease. The rupture of some of the collateralvesselsprobablyresultedin hemorrhage, increasedintracranialpressure[,] andMr.Baker's death." R. at 1100. Mrs. Baker applied for dependency and indemnity compensation in April 1987. This claim was denied by a VA regional office in July 1987 on the basis that the evidence did not indicate that Mr. Baker's death was service connected. Mrs. Baker did not appeal this decision and it became final. In December 2004, Mrs. Baker requested that her dependency and indemnity compensation claim be reopened and indicated that her late husband was involved in Project Shipboard Hazardand Defense (SHAD). Project SHAD "was part of the joint service chemical and biological warfare test program conducted during the 1960s" and "encompassed tests designed to identify US warships' vulnerabilities to attacks with chemical or biological warfare agents and to develop procedures to respond to such attacks while maintaining a war-fighting capability." R. at 136. In a July2006 compensation and pension examination inquiry, the regional office confirmed that Mr. Baker had participated in two Project SHAD operations, "Scarlet Sage[,] with exposure to Bacillus subtilis[4 ] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . . Purple Sage[,] with exposure to Methylacetoacetate."5 R. at 268. The regional office therefore requested that a VA Bacillus is "a genus of bacteria of the family Bacillaceae, including large aerobic or facultatively anaerobic, spore-forming, rod-shaped cells, the great majority of which are gram- positive and motile. Most species are saprophytic soil forms; three are pathogenic or potentially pathogenic." DORLAND'S at 190. Bacillus subtilis is "a species that is a common saprophyte in soil and water, often a laboratory contaminant, and can cause conjunctivitis. It also produces the antibiotic bacitracin." Id. 5 4 The record indicates that Methylacetoacetate is "a sarin nerve agent simulant." R. at 136. 3 examiner determine "whether [Mr. Baker's] cause of death was a direct or contributory result of exposure to stimulants as a result of his participation in Project SHAD." R. at 269. This opinion was obtained from a VA neurologist later that month. After reviewing the claims file, the neurologist noted that "[t]he autopsy findings showed that [Mr. Baker] had cerebral vascular occlusive disease and vascular malformation causing him to have a stroke." R. at 240. With regard to the agents to which Mr. Baker was exposed during his involvement with Project SHAD, the neurologist stated that [a] tracer that was used of bacillus globigii has not been known to consistently cause disease in healthyadult humans. The studies on autopsyshowed that this was not the cause of the infection in [Mr. Baker's] right lung. The cause of death was due to congenital vascular malformation causing a stroke. The clinical course was one that is commonly the case of improvement, and then he developed cerebral edema with brain stem compression and this probably caused his respiratory arrest with contributoryfactorsofright-sidedpneumoniaduetostaph[6 ] andklebsiella[7 ] andnot due to the agent that is mentioned in the tests. R. at 240-41. The neurologist therefore opined that Mr. Baker's " participation in Project SHAD . . . and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not cause[his] death, either from that or exposure to Methylacetal acetate in Purple Sage." R. at 241. In August 2006, the regional office issued a rating decision again denying Mrs. Baker dependency and indemnity compensation on the basis that her husband's death was not service connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and, after further development, appealed to the Board. In both her appeal and her Notice of Disagreement, Mrs. Baker argued that bacillus globigii was known to "cause Q-Fever[8 ] in 3-6% of humans that inhaled the 6 Staph, short for Staphylococcus, is "a ubiquitous genus of gram-positive, mainly facultatively anaerobic bacteria . . . ." DORLAND'S at 1765. They "are important inhabitants of the skin, cutaneous glands, and mucous membranes; several species are important pathogens, causing a wide varietyof infections, as well as producing a number of toxins." Id. Klebsiella is "a genus of bacteria of the family Enterobacteriaceae, made up of small, gram-negative, facultatively anaerobic, nonmotile rods, usually occurring singly; they are widely distributed in nature, including in the intestines. They are a frequent cause of nosocomial urinary and pulmonary infections and of wound infections." DORLAND'S at 988. Q fever is "an acute, generallyself-limited infection caused byCoxiella burnetii, characterized byfever, chills, headache, myalgia, malaise, and occasionally rash, and sometimes complicated by mild pneumonia . . ., hepatitis, and endocarditis. In humans, it is usually acquired by inhalation of airborne organisms in dust or aerosols contaminated by 8 7 4 chemical agent and that humans will continue to have flu-like symptoms and diarrhea, sore throat, fever, cough[,] and other cold symptoms—that will continue for years and then humans die 20 years later." R. at 95; see also R. at 60. She asserted that her husband's medical "records match these symptoms flawlessly," R. at 60, 95, and that it was therefore her belief that he "was one of the 3-6% of . . . soldiers sprayed . . . that developed Q-Fever and never received medical treatment due to the fact that everything about . . . [Project] SHAD . . . was kept classified for over 30 years." R. at 60. The Board issued the decision now on appeal in May 2010. Initially, the Board concluded that new and material evidence had been submitted by Mrs. Baker and therefore reopened her dependency and indemnity compensation claim. In assessing the merits of that claim, the Board noted Mrs. Baker's contention that her husband had contracted Q fever as a result of his participation in Project SHAD and that this condition contributed to his death. The Board also noted that service and post-service medical records indicated treatment for various ailments, including, on many occasions, headaches, but observed that none of them "refer[red] to Q fever or to any relationship between [Mr. Baker's] symptoms and his service." R. at 13. Finally, the Board found the VA neurologist's July2006 opinion to be highlyprobativeand"inlinewith the autopsyreport" insomuch as it concluded that Mr. Baker died as a result of "a congenital vascular malformation." R. at 16. Relying on this opinion, the Board concluded that the preponderance of the evidence did not indicate that Mr. Baker's death was related to his service and therefore denied Mrs. Baker entitlement to dependency and indemnity compensation. II. ANALYSIS A. Dependency and Indemnity Compensation On appeal, Mrs. Baker does not contest the Board's finding that Mr. Baker's participation in Project SHAD did not cause or contribute to his death. Instead, she argues that the Board erred by "onlyconsider[ing] whether [Mr. Baker's] cause of death was the result of chemical exposure" when "[t]he evidence of record . . . clearly raise[d] another issue which the [ Board] did not consider or discuss, whether [Mr. Baker's] in-service vascular headaches were the first manifestations of the infected domestic animals." DORLAND'S at 693. 5 [M]oyamoya [D]isease which led to his death bystroke." Appellant's Brief ( Br.) at 4. The Secretary contends that Mrs. Baker "did not raise this theory of entitlement [to dependency and indemnity compensation] when she sought to reopen her claim[,] nor was such a theory suggested by the evidence of record that would reasonably put the Board on notice that such a theory was plausible and must be developed." Secretary's Br. at 4. The Secretary argues that the Board therefore did not err in failing to consider and discuss this theory of entitlement. In Robinson v. Peake, this Court explained that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As the Court explained, "[i]t is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet.App. at 553. Here, having been reopened following the submission of new and material evidence, Mrs. Baker's claim was one for entitlement to dependency and indemnity compensation. A surviving spouse is eligible for dependency and indemnity compensation under 38 U.S. C. § 1310(a) and 38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected disability"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) ( 2011). A disability is service connected where the evidence of record demonstrates (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011); 6 see also 38 U.S.C. § 1310(a) (providing that "[t]he standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title"). Here, the Board found, and the evidence of record overwhelminglyindicates, that Mr. Baker suffered a stroke that resulted in a hemorrhage when some of the collateral vessels near the optic chiasm ruptured, which in turn caused intracranial pressure leading to his death. The evidence of record is equally clear, and the Board again found, that this stroke resulted from a vascular malformationcausedbyararecerebral vascularocclusivediseaseofuncertainetiologythatis known as Moyamoya Disease. Some of the evidence of record—namely, the autopsyreport—indicates that Mr. Baker's history of migraine headaches is consistent with the manner in which this condition manifests. See R. at 1099 ("Mr. Baker's history of migraine headaches suggests the presence of altered vascular reactivity."). The autopsy examiner dated the onset of this symptomatolgy to1972, during Mr. Baker's active duty service, R. at 1098, but, in fact, the first indication in the record of proceedings of Mr. Baker seeking treatment for headaches is found in the December 1968 service treatment notes, in which his headaches were described as "persistent" and " frequent." R. at 208, 210. Further, additional service treatment records indicate that Mr. Baker continued to suffer from headaches through June 1973, approximately five months prior to his separation from service. R. at 1343, 1374. There is also a bevy of post-service medical records suggesting that this symptom persisted following his separation, until the time of his death. R. at 930, 935, 938, 956, 959, 964, 968-70, 972, 980, 1023, 1035-1039. In sum, this body of evidence suggests that: (1) Mr. Baker's death resulted from a rare cerebral vascular disease of uncertain origins; (2) one symptom of this disease exhibited by Mr. Baker was migraine headaches; (3) these migraine headaches began during Mr. Baker's active duty service and continued, to one extent or another, throughout his service; and (4) headaches continued to plague him following his separation from service until the time of his death. Despite this evidence, the Board gave no consideration whatsoever to the possibility that this disease, although not diagnosed until Mr. Baker's death, had an onset during his active duty service. See 38 C.F.R. § 3.303(d) (providing that a disease that is first diagnosed following the veteran's separation from service may still be granted service connection "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service"). Likewise, the Board gave no 7 consideration to whether the condition might be service connected as a " chronic disease" pursuant to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of symptomatology pursuant to that sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997). Instead, the Board focused solely on the theory of entitlement to dependency and indemnity compensation expressly raised by Mrs. Baker—that her husband contracted Q fever during Project SHAD, which went untreated for many years and ultimately caused or contributed to his death. This was error, as the Board was required not only to develop and adjudicate the theories of entitlement expressly raised by Mrs. Baker, but also those reasonably raised by the record. Robinson, 21 Vet.App. at 553. In reaching the conclusion that this theory of entitlement was reasonably raised by the record, the Court notes that there is no indication that Mrs. Robinson was represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American Veterans as Mrs. Baker's representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (explaining that assistance provided to claimants by veterans service organizations is invaluable but not equivalent to representation by a licensed attorney). This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added). Accordingly, here, the Board was required to take into account the nature of Mrs. Baker's representation when assessing the evidence of record for the purpose of identifying and fully developing all issues and theories of entitlement pertinent to Mrs. Baker's claim for dependency and indemnity compensation. The Court concludes that a liberal examination of this evidence would have led to the development and adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did not happen, the Court will remand this claim for readjudication consistent with this decision. See Robinson, 21 Vet.App. at 553. B. Remedy The Court notes that Mrs. Baker argues that reversal, not remand, is the appropriate remedy under the circumstances of this case. She argues that "[t]he only permissible view of [the] evidence is that [Mr. Baker's] [M]oyamoya [D]isease, which was the cause of his death, began in service and should, then, have been service connected." Appellant's Br. at 7. The Court disagrees. 8 It is true that reversal is the appropriate remedy when there is but one permissible view of the evidence, and that view is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is also true that, in the present case, the theoryof entitlement outlined above byMrs. Baker was most certainly raised bythe record. However, this case involves complex medical questions that the Board did not even attempt to address in the decision on appeal. "[W]here 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, a remand is the appropriate remedy." Tucker v. West, 11 Vet.App. 369, 374 (1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the circumstances of this case, the Court is not convinced that the "only permissible view of the evidence" necessitates a finding that Mr. Baker's death was service connected, and remand is therefore the appropriate remedy. See Gutierrez, 19 Vet.App. at 10. Onremand,theBoardshould determinewhetheradditionaldevelopment, includingobtaining another VA medical opinion that explicitly considers this alternative theory of entitlement, is necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs. Baker will also be free to submit additional evidence and argument on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board is reminded that "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S. C. § 7112 (expedited treatment of remanded claims). 9 III. CONCLUSION Upon consideration of the foregoing, the May 2010 Board decision is VACATED and this matter is REMANDED for additional development, if necessary, and readjudication. DATED: September 21, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 10

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. Implicit Denial, Specificity of Adjudication, Relatedness of the Claims

Excerpt from decision below:
"First, the specificity of the August 1996 Board decision makes it unlikely that a claimant would anticipate that the Board was adjudicating a service connection claim for allergic rhinitis. See Cogburn v. Shinseki, 24 Vet.App. 205, 216 (2010) (noting that specificity of adjudication is a factor to consider in determining whether a claim has been implicitly denied). The August 1996 Board repeatedly referred to two conditions related to a respiratory disorder – asthma and sinusitis – and the decision discussed only evidence relating to these conditions. At no point did the Board refer to any respiratory disorder other than sinusitis and asthma. Second, the decision does not purport to deny any claim for a disability related to a respiratory disorder, and a reasonable claimant would not construe a grant of service connection for a respiratory disorder based on sinusitis and asthma conditions to be, in the same breadth, a denial of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because the conditions in question are so closely related. See id. at 215-16 (noting that the relatedness of the claims is a factor to consider in determining whether a claim has been implicitly denied)."
==============================================


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1849
PAUL J. SACIA, 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: The appellant, Paul J. Sacia, through counsel, appeals a
May14, 2009,
Board of Veterans' Appeals (Board) decision in which the Board denied his
claims for entitlement
to an effective date earlier than October 18, 1996, for the grant of
service connection for allergic
rhinitis and for entitlement to an increased disability rating for service-
connected allergic rhinitis.
Record of Proceedings (R.) at 29. He does not challenge the Board's
findings pertaining to his
increased disability rating claim, and that claim is deemed abandoned. See
Ford v. Gober,
10 Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are
deemed abandoned).
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.
Additionally, the appellant filed a citation of supplemental authority
under Rule 30(b) of the Court's
Rules of Practice and Procedure. Single-judge disposition is appropriate.
See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
reverse the Board's decision
and remand the matter for further proceedings consistent with this
decision.


I. BACKGROUND
The Board found that the appellanthad active servicein the U.S. Armyfrom
January3, 1991,
to July 1, 1991, and from February 14, 1994, to July 21, 1994. R. at 4.
In a June 1995 rating decision, the regional office (RO) denied the
appellant's claim for
entitlement to service connection for "respiratory and/or pulmonary
impairment, including
asthma/bronchitis, sinusitis." R. at 1845. The rating codesheet attached
to the decision shows that
the appellant was found to be non-service connected for "
RESPIRATORY/PULMONARY
IMPAIRMENT; ASTHMAand/orBRONCHITIS, andSINUSITIS/RHINITIS." R. at 1848. In
July
1996, the appellant filed a VA Form 9, Appeal to Board of Veterans'
Appeals, expressing his desire
to appeal this decision. R. at 1748. He specifically listed rhinitis on
this form. Id. At a July 1996
Board hearing, the hearing officer indicated that the issue on appeal was "
entitlement to service
connection for an undiagnosed condition causing respiratory and pulmonary
impairment including
asthma, bronchitis, and sinusitis." R. at 1766.
In August 1996, the Board issued a decision granting the appellant's claim
for entitlement to
service connection "for a respiratory disorder, specifically, asthma and
sinusitis." R. at 1763. The
Board determined that, although asthma and sinusitis "clearly and
unmistakably preexisted the
appellant's period of active duty," those conditions "were shown to have
chronically increased in
severity during the appellant's period of active duty." R. at 1758. The
Board specifically noted that
the appellant had been treated for asthma and sinusitis in service. R. at
1760. The Board concluded
that "service connection for the respiratory disorders referred to in
service medical records,
specifically asthma and sinusitis, is warranted." Id. The Board's decision
did not expressly refer to
allergic rhinitis. See generally R. at 1756-63.
The appellant submitted a letter to the RO in October 1996 inquiring as to
why his rhinitis
claim was not part of the August 1996 Board decision. R. at 1440. He
pointed out that the previous
rating decision had included rhinitis. Id. He stated that "[i]n the [r]
ating [s]chedule [r]hinitis is a
distinct code that is indeed separate from both sinusitis and asthma.
Therefore [r]hinitis cannot be
commingled with sinusitis." Id. In an April 1999 rating decision, the RO
granted the appellant's
claim for entitlement to service connection for allergic rhinitis and
assigned a 10% disability rating,
effective June 30, 1997. R. at 1114. The RO stated that "[t]he previous
rating action granted service
2


connection for respiratoryallergyin conjunction with the
previouslyserviceconnected sinusitis" but
that "[t]he [appellant's] attorney has correctly noted that the rating
schedule provides for separate
evaluations for sinusitis and allergic rhinitis." Id. In August 2005, the
Board adjusted the assigned
effective date for service connection for allergic rhinitis to October 18,
1996. R. at 198.
In the May 2009 decision on appeal, the Board denied the appellant's claim
for an effective
date earlier than October 18, 1996, for the grant of service connection
for allergic rhinitis. R. at 29.
TheBoard,apparentlyconcedingthattheappellantfiledaclaimforentitlementto
serviceconnection
forallergicrhinitis priortoAugust 1996,determinedthattheAugust
1996Boarddecision"implicitly
denied" this claim. R. at 15 (citing Ingram v. Nicholson, 21 Vet.App. 232 (
2007)). The Board stated
that
[t]he [August 1996] Board's decision made note of the fact that the only
respiratory
disabilitieswhichwerepresent duringservicewere sinusitis and asthma. Inso
doing,
the Board effectively denied service connection for any and all
respiratory disorders
other than sinusitis and asthma, including allergic rhinitis. The August
1996 Board
decision put the [appellant], who was represented by an attorney, on
notice that his
allergic rhinitis claim was being considered and rejected. In short, the
denial of
service connection for any respiratory disorders aside from sinusitis and
asthma was
a denial of service connection [for] allergic rhinitis.
R. at 16. This appeal followed.
II. ANALYSIS
On appeal, the appellant contends that the implicit denial rule does not
apply to decisions of
the Board and therefore it was not appropriate for the Board, in the
decision on appeal, to determine
that his claim for entitlement to service connection for allergic rhinitis
was implicitly denied by the
August 1996 Board. Appellant's Brief (Br.) at 8-9. The Secretary argues
that this case is controlled
by a line of cases from both this Court and the U.S. Court of Appeals for
the Federal Circuit.
Secretary's Br. at 6-8 (citing Adams v. Shinseki, 568 F.3d 956 (Fed. Cir.
2009) and Jones v. Shinseki,
23 Vet.App. 122 (2009)). He argues that the claim was implicitly denied by
the RO in June 1995
(id. at 9-12) and that "[t]he August 1996 Board decision indicated that
all other respiratorydisorders,
other than asthma and sinusitis, were denied" (id. at 12). He contends
that "[t]his exclusion of all
other claims other than sinusitis and asthma should have put [the
appellant] on notice that something
3


was not right about his appeal." Id. In his reply brief, the appellant
attempts to distinguish the cases
that the Secretary cited and reasserts that the implicit denial rule does
not apply at the Board level.
Reply Br. at 3-5. He also argues that the August 1996 Board did not decide
the allergic rhinitis
claim. Id. at 5.
The determination of the effective date of an award is generally governed
by 38 U.S.C.
§ 5110(a), which states that, "[u]nless specifically provided otherwise
. . . , the effective date of an
award based on an original claim [or] a claim reopened after final
adjudication . . . shall be fixed in
accordance with the facts found, but shall not be earlier than the date of
receipt of application
therefor." 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (2010). A "pending
claim" is "[a]n
application, formal or informal, which has not been finally adjudicated."
38 C.F.R. § 3.160(c)
(2010). Consistent with this regulation, this Court has held that "[a]
reasonablyraised 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." Ingram, 21 Vet.App. at 241. "[I]f the
appellant believes that the
Secretary has incorrectly determined the date when his claim began, he may
argue that the 'claim'
identified was merely additional correspondence on his previously pending
claim." Id. at 243.
The Board conceded that the appellant's "initial claim for VA benefits
included a claim for
service connection for allergic rhinitis." R. at 5. Moreover, the
Secretary does not dispute that the
June 1995 RO decision denied the appellant's claim for entitlement to
service connection for allergic
rhinitis. See Secretary's Br. at 9-12; see also R. at 1848 (rating
codesheet to June 1995 rating
decision
showing
that
the
appellant
was
non-service
connected
for
"RESPIRATORY/PULMONARY IMPAIRMENT; ASTHMA and/or BRONCHITIS, and
SINUSITIS/RHINITIS"). Finally, there does not appear to be a dispute as to
whether the allergic
rhinitis claim was properly before the Board in August 1996. The Court
notes that the appellant's
July 1996 Substantive Appeal to the Board specifically referred to
rhinitis. R. at 1748.
In the briefs filed with the Court, the parties debate whether the
implicit denial rule can apply
to decisions of the Board. However, the Court need not reach this
particular issue because, even
assuming the rule does apply to Board decisions, the Board's conclusion
that a reasonable claimant
would be able to deduce from the August 1996 Board decision that a claim
for entitlement to service
4


connection for allergic rhinitis had been denied is clearly erroneous.
See Previous DocumentLocklearNext Document v. Shinseki,
__ Vet.App. __, __, No. 09-2675, slip op. at 9, U.S. Vet. App. 291, at *18-
19 (Feb. 11, 2011)
(applying the "clearly erroneous" standard to review a Board's finding
that a total disability rating
based on individual unemployability was implicitly denied in earlier RO
and Board decisions); see
also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) ("'A finding is "
clearly erroneous" when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'" (quoting
United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948))).
There are two reasons for the Court's conclusion. First, the specificity
of the August 1996
Board decision makes it unlikely that a claimant would anticipate that the
Board was adjudicating
a service connection claim for allergic rhinitis. See Cogburn v. Shinseki,
24 Vet.App. 205, 216
(2010) (noting that specificity of adjudication is a factor to consider in
determining whether a claim
has been implicitly denied). The August 1996 Board repeatedly referred to
two conditions related
to a respiratory disorder – asthma and sinusitis – and the decision
discussed only evidence relating
to these conditions. At no point did the Board refer to any respiratory
disorder other than sinusitis
and asthma. Second, the decision does not purport to deny any claim for a
disability related to a
respiratory disorder, and a reasonable claimant would not construe a grant
of service connection for
a respiratory disorder based on sinusitis and asthma conditions to be, in
the same breadth, a denial
of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because
the conditions in question are so closely related. See id. at 215-16 (
noting that the relatedness of the
claims is a factor to consider in determining whether a claim has been
implicitly denied). The Court
notes that the appellant had a specific diagnosis of allergic rhinitis in
June 1994. R. at 2007. It is
also worth pointing out that the appellant's subsequent action indicates
that he did not have actual
knowledge that his allergic rhinitis claim was adjudicated in the August
1996 Board decision as, in
October 1996, he mailed a letter to the RO inquiring into the status of
the claim. R. at 1440. In
short, contrary to the Board's conclusion, a reasonable claimant could not
have deduced from the
August 1996 decision that a claim to entitlement to service connection for
allergic rhinitis had been
denied.
5


Based on the foregoing analysis, the Board's finding that the August 1996
Board implicitly
denied the appellant's claim to entitlement to service connection is
clearly erroneous and will be
reversed. The Court will remand this matter to the Board for further
adjudication consistent with
this decision.
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's May 14, 2009, decision is REVERSED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: March 14, 2011
Copies to:
David Boelzner, Esq.
VA General Counsel (027)
6

Cogburn v. Shinseki, NO. 08-1561 (Argued September 21, 20101 Decided December 13, 2010), Implicit Denial, Reasonable Person Standard, Identify the Benefit Sought

Excerpts from the decision below:

On appeal, the Court must first address what disabilities for which Mr. Cogburn filed claims in 1974 and 1983. The Court must next determine what, if any, of Mr. Cogburn's claims remain pending, and, if there are any claims that remained pending, whether the implicit denial doctrine applies to those claims. This determination is complicated by the fact that the Board did not make any such determinations. Thus, it must be specifically determined whether (1) Mr. Cogburn filed more than one claim in 1974; (2) what claim(s) were adjudicated in 1974; (3) what disabilit(ies) Mr. Cogburn claimed in 1983, to include, depressive neurosis, schizophrenia, and post-traumatic stress disorder; (4) whether the 1983 claim was for the same disability as the 1974 claim; and (5) what, specifically, was adjudicated in the 1985 claim? To provide the Board guidance regarding its adjudication of this case upon remand, we will address each of these questions in the analysis below.
=================================
the Board must address each of the factors outlined below.

1. Relatedness of Claims
The first factor to consider in the implicit denial analysis is whether Mr. Cogburn's November
1974 claim and his June 1983 claim are identical or related claims. The Court notes that on both applications, Mr. Cogburn referred to a "nervous condition," but that his June 1983 claim was termed and developed by VA as a claim for the strict disability of post-traumatic stress disorder. The requirement that a claimant identify the benefit sought means that the claimant must describe the nature of the disability for which he is seeking benefits. Ingram, 21 Vet.App. at 256. A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of a disability. See Clemons, 23 Vet.App. at 5 (stating that when determining the scope of a 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"); 38 C.F.R. § 3.159(c)(3) (2010); see also R. at 912 (VA Form 21-526, Veteran's Application for Compensation and Pension, Block 24 instructing appellant to provide the "NATURE OF SICKNESS, DISEASE OR INJURIES FOR WHICH THIS CLAIM IS MADE") (emphasis added); cf Boggs, 520 F.3d at 1330 (holding that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits); Velez v. Shinseki, 23 Vet.App. 199, 203 (2009) (holding that, in the context of reopening, a claim for a
15

nervous condition was not a new claim based on a distinctly diagnosed condition from a previously adjudicated claim for a stress disorder).
Here, because the Board did not address Mr. Cogburn's argument that his 1974 claim
remained pending and unadjudicated, the Board did not make any findings as to whether the
November 1974 and June 1983 claims were identical or closely related. Accordingly, on remand, the Board should determine whether the implicit denial doctrine applies to Mr. Cogburn's claim and, if so, whether his November 1974 and June 1983 claims are identical or related. See Clemons, 23 Vet.App. at 5.

2. Specificity of Adjudication
The second factor to consider in Mr. Cogburn's case is whether a reasonable person could
infer that the prior 1974 claim for a severe nervous condition and any informal claim for
schizophrenia were denied by the November 1985 Board decision and the prior adjudications
associated with the June 1983 claim. In the context of Mr. Cogburn's appeal, the Board must
consider that he filed a claim for a nervous disorder, submitted treatment records showing a
diagnosis of schizophrenia, received a rating decision denying compensation benefits for posttraumatic
stress disorder, continued his appeal for post-traumatic stress disorder, and received a
Board decision that denied benefits based on legal criteria unique to post-traumatic stress disorder, i.e. the absence of a recognizable stressor, while also suggesting that the preponderance of the evidence showed that the appellant most likely suffered from schizophrenia.
The Court reminds the Board that the standard to be applied when analyzing the specificity of an adjudication in an implicit denial doctrine analysis is that of a reasonable person.
The reasonable man connotes a person whose notions and standards of behavior and
responsibility correspond with those generally obtained among ordinary people in our
society at the present time, who seldom allows his emotions to overbear his reason
and whose habits are moderate and whose disposition is equable. He is not
necessarily the same as the average man-a term which implies an amalgamation of
counter-balancing extremes.
BLACK'S LAW DICTIONARY 1380 (9th ed. 2009) (quoting R.F.V. Heuston, SALMOND ON THE LAW OF TORTS 56 (17th ed. 1977)); see also Adams, 568 F.3d at 963 (discussing this Court's holding in Ingram, and stating that in applying the implicit denial doctrine, the Court must "determine whether
16

[VA] provided sufficient information for a reasonable claimant to know that he would not be
awarded benefits for his asserted disability" (emphasis added)); id. at 964 ("[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." (emphasis added)); see also Ingram, 21 Vet.App. at 243.
Accordingly, on remand, the Board must determine 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-traumatic stress disorder."

3. Timing of Claims
As noted above, the Federal Circuit has stated that the timing of claims is "highly significant"
to an implicit denial doctrine analysis. The timing of the claims in Mr. Cogburn's case is
distinguishable from the timing of the claims filed in Adams and Deshotel. In Deshotel, the two
claims in question were filed simultaneously, whereas in Adams, the two claims were filed only six months apart. Here, Mr. Cogburn first filed claims for VA compensation and pension benefits in 1974. Both the compensation and pension claims were filed at the same time, and on the same claim form, i.e., in a single application. As noted above, the pension claim was explicitly adjudicated in March 1975. There is a span of approximately nine years between when Mr. Cogburn first filed his claim for a nervous condition in 1974 and when he filed another claim for a nervous disorder in June 1983. It is therefore unclear whether this nine-year gap would allow for Mr. Cogburn to reasonably determine that his 1974 compensation claim was implicitly denied by the adjudication of his subsequent claim, especially given that there were several psychiatric diagnoses noted in the record.
The Board does not discuss the timing of the claims in its decision. On remand, therefore,
the Board must weigh the nine year-span between the filing of the two claims in this case, in addition to the other factors discussed herein.

4. Representation
Finally, the Court notes that the Board also did not make any findings of fact as to how Mr.
Cogburn's representation affected his appeal or the prior adjudications of his claims. The Court
observes that at the time of his November 1974 claim, Mr. Cogburn was represented by the Disabled
17
American Veterans. At the time of his June 1983 claim, Mr. Cogburn was represented by the
Veterans of Foreign Wars, and the Veterans of Foreign Wars continued to represent Mr. Cogburn before the Board. When Mr. Cogburn reopened his claim for post-traumatic stress disorder in October 1991, he was represented by the Arizona Veterans Service Commission. Mr. Cogburn was then represented by the American Legion, who represented him during his June 2007 Board hearing and at the time of the January 2008 Board decision. These are all veterans service organizations, and there is no indication that Mr. Cogburn was represented by an attorney at any point prior to his appeal to this Court. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (holding that "representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans' service organizations provide invaluable assistance to claimants . . . they are 'not generally trained or licensed in the practice of law.'" (quoting Cook v. Brown, 68 F.3d 447, 451 (Fed. Cir. 1995))). Although representation by an attorney is but one factor to be considered during an implicit denial doctrine analysis, it nevertheless plays a role in determining the degree to which a pleading will be liberally construed. See Robinson, 21 Vet.App. at 554. To this end, whether a claimant is represented is particularly relevant to what disability was initially claimed and how any decision based on the implicit denial doctrine is interpreted.
Accordingly, in its analysis on remand, the Board should account for the fact that Mr.
Cogburn was represented by organizational aides prior to his appeal to this Court.
============================================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1561
DENNIS W. COGBURN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued September 21, 20101 Decided December 13, 2010)
Kenneth M. Carpenter, of Topeka, Kansas, with whom Robert F. Howell, of Del Ray Oaks,
California, for the appellant.
Tamika N. Springs, with whom John H. Thompson, Acting General Counsel, R. Randall
Campbell, Assistant General Counsel, Joan E. Moriarty, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.

Before GREENE, HAGEL, and SCHOELEN, Judges.
HAGEL, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a concurring
opinion.
HAGEL, Judge: Dennis W. Cogburn appeals though counsel a January 28, 2008, Board of
Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than October 1, 1991, for the award of VA benefits for post-traumatic stress disorder, including denying that there was clear and unmistakable error in a June 1993 regional office decision. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The case was sent to a panel to address an issue of first impression, which is whether application of the implicit denial doctrine in this circumstance violated the appellant's due process right to notice of VA's decision and appellate process. Because
2
the Board did not make any findings with regard to whether the implicit denial doctrine applied to Mr. Cogburn's claim, the Court will vacate the January 28, 2008, Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS
Mr. Cogburn served on active duty in the U.S. Army from August 1968 to August 1971,
including service in Viet Nam.
A. 1974 Claim
In November 1974, Mr. Cogburn filed a claim for a "severe nervous condition." Record (R.)
at 948. On his application, he separately underlined the word "compensation" and the word
"pension." R. at 947. He also indicated in his application that he was treated for his nervous
condition at a VA hospital in Albuquerque, New Mexico, in November 1974. A VA hospital
summary for the period from November to December 1974 indicates that Mr. Cogburn was
depressed and anxious and suffered from feelings of inferiority. Subsequently, in February 1975, a VA regional office issued a decision denying Mr. Cogburn entitlement to pension. A letter attached to that decision informed him that this was because his "disabilities are not sufficient to permanently prevent [him from] engaging in substantially gainful employment." R. at 937. The rating decision identified his medical condition as "depressive neurosis" and specifically stated, "[t]his is a claim for pension." R. at 939. The decision made no reference to a claim for disability compensation. Mr. Cogburn did not appeal that decision.
Subsequent to that decision, Mr. Cogburn continued to receive psychiatric treatment. In
October 1975, Mr. Cogburn was hospitalized and diagnosed with schizophrenia, chronic,
undifferentiated type. Mr. Cogburn was hospitalized again in August 1976, where he was again
diagnosed with schizophrenia, chronic, undifferentiated type.

B. 1983 Claim
In June 1983, Mr. Cogburn again filed a claim for VA benefits due to a "nervous disorder."
R. at 911. On his application, he indicated that his condition "began soon after discharge. Began
treatment in 1972." R. at 912. In a January 1984 decision, the regional office found that Mr.
Cogburn was not entitled to VA disability compensation benefits for post-traumatic stress disorder
3
but that he was "entitled to non-service connected pension benefits due to [his] post[-]traumatic
stress disorder." R. at 880. The decision also informed Mr. Cogburn that "[t]his disorder was not
determined to be service connected in nature since there was no recognizable stressor found during
your examination." Id. In March 1984, Mr. Cogburn filed a Notice of Disagreement and ultimately
appealed that decision to the Board. In April 1985, the Board remanded Mr. Cogburn's claim to
obtain additional treatment records and to afford him a VA psychiatric examination. Although
additional treatment records were obtained, Mr. Cogburn failed to report for his scheduled VA
psychiatric examination. Accordingly, in a November 1985 decision, the Board found that Mr.
Cogburn did not have post-traumatic stress disorder that was caused by his experience in Viet Nam.
The Board also found that "the preponderance of the medical evidence suggests that [Mr. Cogburn]'s
post service emotional and adjustment difficulties are manifestations of schizophrenia." R. at 822.
The Board did not, however, discuss whether Mr. Cogburn's schizophrenia was related to his active
service. Mr. Cogburn did not appeal that decision.
C. 1991 Claim
In October 1991, Mr. Cogburn requested that his claim for VA benefits for "post-traumatic
stress disorder" be reopened. In March 1992, the regional office issued a confirmed rating decision,
finding that new and material evidence had not been received to reopen Mr. Cogburn's claim. Mr.
Cogburn appealed that decision, and in a June 1993 decision, the regional office awarded Mr.
Cogburn entitlement to VA benefits for post-traumatic stress disorder, assigning a 100% disability
rating, effective October 1, 1991, the date his claim to reopen was received.
In November 1993, Mr. Cogburn submitted a statement indicating that he was filing a formal
claim for "redetermination of the effective date" of his award for VA benefits for post-traumatic
stress disorder, "from Nov[.] 1, 1991, to a date in 1974 when [I] first filed a claim for a nervous
condition, or to such other date as is established by the evidence." R. at 670. Specifically, Mr.
Cogburn contended that clear and unmistakable error was committed when VA failed to obtain
certain records prior to 1993 and when the October 1991 effective date was assigned, because "[t]he
evidence that was eventually found adequate to establish service connection at 100% has been
available at all times material to this case." R. at 671. In a November 1995 letter, Mr. Cogburn was
notified that a stay that pertained to his claim had been lifted, and that pursuant to a recent decision
4
by the United States Court of Appeals for the Federal Circuit (Federal Circuit), the regional office
did not have the authority to consider his request for revision based on clear and unmistakable error.
Therefore, he should file a motion for reconsideration with the Board.
In a January 2001 rating decision, the regional office stated that, based on a review of Mr.
Cogburn's file, it was accepting jurisdiction over whether there was clear and unmistakable error in
the June 1993 regional office decision. In March 2002, Mr. Cogburn filed a statement with the
regional office, asserting that he was "totally confused as to the current status" of his claim. R. at
555. In May 2002, Mr. Cogburn again filed a statement with the regional office, inquiring as to the
status of his unadjudicated claims. Specifically, Mr. Cogburn asserted that his 1974 claim for a
"severe nervous condition" was never addressed. In October 2002, the regional office issued a
decision, finding that an earlier effective date for service connection for post-traumatic stress
disorder was not warranted and that VA benefits for a nervous condition, claimed in November
1974, had already been adjudicated as a claim for post-traumatic stress disorder in the November
1985 Board decision and remained denied.
Mr. Cogburn filed a Notice of Disagreement disagreeing, in pertinent part, with the regional
office's determination that his 1974 claim for a "severe nervous condition" and "dysthmia, i.e.
depressive neurosis" was denied nine years later in a Board decision that denied compensation
benefits for post-traumatic stress disorder on the basis of the absence of a recognizable stressor,
when neither of the earlier claimed conditions required evidence of a stressor. R. at 470-71. Mr. Cogburn subsequently perfected his appeal to the Board.
In June 2007, Mr, Cogburn testified at a Board hearing. At the Board hearing, Mr. Cogburn
was represented by a non-attorney representative from the American Legion. At the hearing, Mr. Cogburn and his representative stated clearly that Mr. Cogburn was not alleging clear and
unmistakable error in the 1974 regional office decision, but rather that the 1974 disability
compensation claim had never been adjudicated and thus remained pending.
In the January 2008 Board decision currently on appeal, the Board found that "[t]he June 28,
1993, rating decision establishing service connection for [post-traumatic stress disorder] with an
effective date of October 1, 1991, is final and the appeal for an earlier effective date for [posttraumatic stress disorder] based upon a March 2002 claim is legally precluded." R. at 5. The Board
More precisely stated, a claimant seeking an effective date that is earlier t 2 han the one found by VA has only
two options depending on the status of the adjudication assigning the effective date. If the decision assigning the
effective date has not become final, the appellant may file a direct appeal challenging the effective date. If, however,
the decision assigning the effective date has become final, the only means by which a claimant may obtain an earlier
effective date is by a collateral attack on the regional office or Board decision that assigned the effective date.
5
also found that Mr. Cogburn had not submitted a motion for reconsideration or alleged clear and unmistakable error in the "November 1985 Board decision which effectively resolved any pending service connection claims for [post-traumatic stress disorder] and that determination is considered final." R. at 8.

D. Arguments on Appeal
On appeal, in his principal brief, Mr. Cogburn contends that his 1974 claim for a "severe
nervous condition" was not the same "claim" as the one denied by the Board in 1985. He also argues that the Board did not provide adequate reasons or bases for its conclusion that the 1974 claim was based on the same disability as his June 1983 claim. Mr. Cogburn further asserts that he never sought an earlier effective date for his post-traumatic stress disorder and that he does not agree with this characterization of his claim. Most significantly, in his supplemental brief, Mr. Cogburn also argues that "to hold that [his] 1974 claim was denied by the 1985 [Board] decision would deprive him of his fifth amendment right to due process of law and would exceed the limits placed on the 'implicit denial doctrine.'" Appellant's Supplemental Brief (Br.) at 7.
In response, the Secretary argues that the Court should affirm the January 2008 Board
decision because the Board's decision was not clearly erroneous. The Secretary contends that Mr.
Cogburn's request for an earlier effective date is a free-standing claim, which is precluded as a matter
of law. Secretary's Br. at 6 (citing Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006)).2 The Secretary
also contends that Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008), supports the Board's
finding that Mr. Cogburn's 1974 claim for a nervous disorder was properly adjudicated. Finally, the
Secretary asserts that the Board provided an adequate statement of reasons or bases for its decision.
In his supplemental brief, the Secretary argues that "[Mr. Cogburn]'s due process rights were not
violated by the finding that his 1974 claim for entitlement to service connection for a 'nervous
condition' was implicitly denied in the 1985 Board decision because [he] received adequate notice
of, and an opportunity to respond to, the decision." Secretary's Supplemental Br. at 1.
6
At oral argument, Mr. Cogburn argued that the issue in this case was whether VA's assertion
that Mr. Cogburn's 1974 claim was implicitly denied, if accurate, would violate Mr. Cogburn's right
to due process due to the lack of notice of the denial. He argued that, in the alternative, if Mr.
Cogburn's claim for disability compensation due to a "nervous disorder" was not implicitly denied,
then it was still pending. In response, the Secretary argued that any issue that was pending in 1974
was subsumed by the June 1985 Board decision and that if Mr. Cogburn believed that he had a claim
left pending, he should have appealed the 1975 regional office decision on direct appeal to the Board.
In rebuttal, Mr. Cogburn reiterated that he could not exercise his due process rights because he did
not receive notice of a decision on his 1974 claim for compensation benefits in either 1975 or 1985.

E. Panel Issues
On appeal, the Court must first address what disabilities for which Mr. Cogburn filed claims in 1974 and 1983. The Court must next determine what, if any, of Mr. Cogburn's claims remain pending, and, if there are any claims that remained pending, whether the implicit denial doctrine applies to those claims. This determination is complicated by the fact that the Board did not make any such determinations. Thus, it must be specifically determined whether (1) Mr. Cogburn filed more than one claim in 1974; (2) what claim(s) were adjudicated in 1974; (3) what disabilit(ies) Mr. Cogburn claimed in 1983, to include, depressive neurosis, schizophrenia, and post-traumatic stress disorder; (4) whether the 1983 claim was for the same disability as the 1974 claim; and (5) what, specifically, was adjudicated in the 1985 claim? To provide the Board guidance regarding its adjudication of this case upon remand, we will address each of these questions in the analysis below.

II. ANALYSIS

A. The Due Process Clause
In pertinent part, the Fifth Amendment of the U.S. Constitution reads "No person shall . . .
be deprived of life, liberty, or property without due process of law." In Cushman v. Shinseki, the Federal Circuit held that "entitlement to [VA] benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution," and that as such, veterans have a constitutional right to a fair adjudication of their claims for benefits. 576 F.3d 1290, 1298 (Fed. Cir. 2009); see also Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (noting that

Most notably, the Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 3 4105 (1988), created this
Court, permitting judicial review of decisions of the Board of Veterans' Appeals for the first time. In the same Act,
Congress eliminated the $10 fee cap for attorneys representing veterans before the Court. This was the provision that
was at issue in Walters. See Veterans Benefits, Health Care, and Information Technology Act, Pub. L. No. 109-461,
§ 101(c)(1)(A), 120 Stat. 3403, 3407 (2006) (now codified at 38 U.S.C. § 5904(c)(1)) (allowing attorneys to represent
veterans at any time after a Notice of Disagreement has been filed).
7
the Federal Circuit has recently held that the Due Process Clause applies to proceedings for veterans benefits.).
Fifth Amendment procedural due process of law includes notice and a fair opportunity to be
heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950); see also Dusenbury v. U.S., 534 U.S. 161, 167 (2002) ("From these cryptic and abstract words, we have determined that individuals whose property interests are at stake are entitled to notice and an opportunity to be heard." (internal citations omitted)). Specifically, the notice provided must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314.
Both elements of due process, notice and an opportunity to be heard, have long played an
integral part in the veterans benefits arena. Pursuant to 38 U.S.C. § 5104, when the Secretary makes a decision affecting the benefits of a claimant, the Secretary must provide the claimant and his or her representative notice of that decision. Specifically, "[s]uch notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of that decision." 38 C.F.R. § 3.103(b) (2010); see Fournier v. Shinseki, 23 Vet.App. 480, 482, n.1 (2010). Indeed, "[t]he 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." Thurber v. Brown, 5 Vet.App. 119, 123 (1993).
In Walters v. National Association of Radiation Survivors, the Supreme Court analyzed the
application of the Due Process Clause to the veterans benefits system. 473 U.S. 305 (1985).
Although the veterans benefits system has changed significantly in the 25 years since that decision,3 the Supreme Court recognized the informal and pro-claimant nature of that system, and stated that accordingly, the Due Process Clause did not require the same kinds of procedures that would be required in a more a conventional, adversarial proceeding. In Walters, the Supreme Court
8
emphasized that due process "is a flexible concept." 473 U.S. at 320; see gen. Gambill, 576 F.3d at 1313-24 (Bryson, J., concurring).

B. The Implicit Denial Doctrine
A claim for VA benefits, whether formal or informal, remains pending until it is finally
adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c)(2010). A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). It is well established, however, that in certain circumstances, pursuant to the implicit denial doctrine, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams, 568 F.3d at 961.
The implicit denial doctrine was first pronounced in Deshotel v. Nicholson, 457 F.3d 1258
(Fed. Cir. 2006). In that case, the Federal Circuit held that:
Where the veteran files more than one claim with the [regional office] at the same
time, and the [regional office]'s decision acts (favorably or unfavorably) on one of the
claims but fails to specifically address the other claim, the second claim is deemed
denied, and the appeal period begins to run. Id. at 1261.
Shortly after the decision in Deshotel was issued, this Court interpreted the application of the
implicit denial doctrine. In Ingram v. Nicholson, this Court held that "a reasonably raised claim
remains pending until there is either a recognition of the substance of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." 21 Vet.App. 232, 243 (2007). In its opinion, the Court emphasized that it rejected a "broad, sweeping reading of Deshotel as supplanting the pending claim doctrine," and reiterated that a claimant must be able to reasonably deduce from the decision that the claim was denied. Id. at 246-47. Further, the Court noted that a broad reading of Deshotel "would run afoul of the due process concerns voiced by the en banc Federal Circuit in Cook and by this Court in Thurber." Id. at 250-51.
In Williams v. Peake, the Federal Circuit addressed "whether a finally adjudicated claim on
a subsequent identical claim serves as a final adjudication of an earlier pending identical claim."
9

521 F.3d 1348, 1350 (Fed. Cir. 2008). Adopting this Court's holding in Ingram, the Federal Circuit held:
We agree with the Veterans Court that a subsequent final adjudication of a claim
which is identical to a pending claim that had not been finally adjudicated terminates
the pending status of the earlier claim. The later disposition, denying the claim on
its merits, also decides that the earlier identical claim must fail. The notice given that
the later claim has been disallowed informs the veteran that his claim for service
connection has failed. This notice affords the veteran the opportunity for appeal to
the [Board], and if necessary to the Veterans Court and this court, so that he might
demonstrate that his claim for service connection should have been sustained.
Id. at 1351.
The Federal Circuit again confronted the implicit denial doctrine in Adams. In that case, the
appellant argued that this court misinterpreted the implicit denial doctrine. 568 F.3d at 958.
Specifically, the appellant argued that because the claims involved in his appeal were not filed at the same time, the holding in Deshotel did not apply. Id. at 962. The Federal Circuit held that "in this instance, as in many others, the inverse of a true proposition is not necessarily true." Id. (citing Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004)). The Federal Circuit explained that the implicit denial doctrine, as outlined in Deshotel and Ingram, "reflects an appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided." Id. at 963. Further, and of direct importance to this case, the Federal Circuit held that the implicit denial doctrine did not itself violate an appellant's due process right to receive fair notice of the regional office's decision denying a claim for benefits. Id. at 964-65.
In Munro v. Shinseki, the Federal Circuit again elaborated on the implicit denial doctrine,
holding that "the implicit denial rule may be applied to terminate the pending status of both formal and informal claims." 616 F.3d 1293, 1297 (Fed. Cir. 2010). The Federal Circuit reiterated that Adams clarified the notice requirements for the implicit denial doctrine and rejected the appellant's argument that a VA decision must expressly discuss a pending claim for it to be deemed denied. Id. at 1298. "[T]he proper notice standard is 'whether [a VA decision] provided sufficient information for a reasonable claimant to know that he would not be awarded benefits for his asserted disability.'" Id. at 1299 (quoting Adams, 568 F.3d at 963).
10

Most recently, the Federal Circuit reiterated these principles in Jones v. Shinseki, where it
held that "under appropriate circumstances, a pending claim for benefits can be resolved by later
adjudication of an identical claim or a related claim because the later decision provides sufficient
notice to the claimant that the pending claim has been finally resolved." 619 F.3d 1368, 1372 (Fed. Cir. 2010). In that case, the Federal Circuit held that the implicit denial doctrine also applies when the subsequent adjudication is a Board, rather than a regional office, decision. Id. at 1373.

C. Factors for Consideration
Given this caselaw, the Court finds that there are several factors that should be taken into
consideration applying the implicit denial doctrine. The first factor to be considered is the specificity of the claims or the relatedness of the claims. For example, it is important to note whether the claimant is seeking benefits for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related. See Clemons v. Shinseki, 23 Vet.App. 1 (2009); cf. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Adams, 568 F.3d at 963 (noting that the conditions for which the veteran sought VA benefits were closely related because rheumatic heart disease and bacterial endocarditis both affect heart valves and are frequently associated with each other); Deshotel, 457 F.3d at 1261-62 (the claimant was seeking service connection for two conditions that were closely related: a head injury and a psychiatric disability resulting from that head injury); cf. Ingram, 21 Vet.App. 247 (noting that the appellant's claim for VA benefits under 38 U.S.C. § 1151 was unrelated to his claim for non-service-connected pension benefits).
The second factor to consider is the specificity of the adjudication, i.e., does the adjudication
allude to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied? 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, 2008 WL 2128005, slip op. at 6 (No. 06-0095, 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
11

"[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").
The third factor to consider is the timing of the claims. In Adams, the Federal Circuit stated
that "[t]he timing of the claims is also highly significant." 568 F.3d at 964. For example, in
Deshotel, the veteran filed more than one claim at the same time and the regional office decision
adjudicated one claim but failed to specifically address the other. 457 F.3d at 1261. In Adams, the Federal Circuit explained that Deshotel "did not suggest that the implicit denial [doctrine] is limited to situations in which the veteran files multiple claims in a single application." 568 F.3d at 964.
Although Adams filed the two claims six months apart, the Federal Circuit held that "the two claims were closely associated both in time and in the manner in which they were presented to [VA]." Id. The fourth factor to consider is whether the claimant is represented. It is a well established principle that VA has a duty to sympathetically read a veteran's pleadings. "[I]n order to develop a claim 'to its optimum' as mandated by Hodge [v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998),] . . .
VA must determine all potential claims reasonably raised by the evidence, applying all relevant laws and regulations." Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The requirement that VA sympathetically read a veteran's pleadings was qualified further in that the Federal Circuit held that it applies "with respect to all pro se pleadings." Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). This duty that VA sympathetically read the claim also applies when an appellant is represented, although representation may be a factor in determining the degree to which the pleading is liberally construed. See Robinson v. Peake, 21 Vet.App. 545, 554 (2008) ("The presence of [the appellant's attorney] throughout the appeals process before the Agency is a significant factor"); but see Robinson v. Shinseki, 557 F.3d 1355, 1360 (Fed. Cir. 2009) (affirming this Court's decision, but cautioning that representation by a lawyer alone would not permit a finding of waiver). In addition, because an attorney has a duty to provide competent representation to the client, including "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," the attorney must advise the appellant of any claim that was unadjudicated in a regional office decision,

In this regard, it is important to note that post-traumatic stress disorder 4 was not recognized as a diagnosis by
the American Psychiatric Association until January 1980. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 236 (3rd ed. 1980). In addition, VA did not recognize post-traumatic stress disorder as a service-connectable
disorder until 1980. See Fletcher v. Derwinski, 1 Vet.App. 394, 395 (1991).
12

and the possible consequences of not directly addressing the claim at the time of the original rating action. MODEL RULE OF PROF'L CONDUCT R. 1.1 (2007).

D. Applicability of Factors to Mr. Cogburn's Claim
First and foremost, the Court notes that the implicit denial doctrine, in and of itself, does not
violate an appellant's due process rights. See Adams, 568 F.3d at 964-965 ("Mr. Adams further contends that the Veteran's Court's application of the implicit denial rule violated his due process right to receive fair notice of the regional office's decision denying his claim for benefits. We reject that argument."). Additionally, Mr. Cogburn conceded this at oral argument and made clear that he was only challenging the implicit denial doctrine as it applied to him in this instance. The essence of Mr. Cogburn's argument is that any finding that his 1974 claim was denied by the November 1985 Board decision would deny him his due process right to notice and an opportunity to be heard because, he argues, the 1985 Board decision did not discuss his 1974 claim in terms sufficient to put him on notice that when the Board denied benefits for post-traumatic stress disorder, it was also denying benefits for a severe nervous condition, diagnosed as depressive neurosis and schizophrenia.
Accordingly, the key question is whether Mr. Cogburn could reasonably deduce that his 1974
compensation claim and any informal claim for schizophrenia were denied by the November1985 Board decision and the prior adjudications associated with his June 1983 claim and, if so, whether this satisfied his due process rights.4
In the decision here on appeal, the January 28, 2008, Board decision, the Board noted the
appellant's argument, in his October 2003 Notice of Disagreement, that an earlier effective date was
warranted based upon "unadjudicated formal and informal claim[s] he submitted in 1974 and 1975"
and that he "reiterated these claims at his personal hearing in June 2007." R. at 8. However, rather than address this argument, the Board summarily stated "[i]n this case, [Mr. Cogburn] has submitted no motion for reconsideration or [alleged clear and unmistakable error in the] November 1985 Board decision[,] which effectively resolved any pending service connection claims for [post-traumatic stress disorder,] and that determination is considered final." R. at 8.
In DiCarlo v, Nicholson, 20 Vet.App. 52, 56 (2006), we stated 5 that the "appropriate procedure" for a claimant
who believes that his claim is unadjudicated is to pursue resolution of the claim by the regional office. Here, the regional
office refused to adjudicate Mr. Cogburn's claims because it determined that the claims were finally adjudicated in 1985.
When Mr. Cogburn initiated an appeal from the regional office's decision that refused to adjudicate his claims, he was
entitled to a Board decision on his appeal. See also Beverly, 19 Vet.App. at 404 ("[E]ven when there is no Board
decision on a claim, we have jurisdiction over that claim if there is reference to it in [a Notice of Disagreement], or if
it is reasonably raised to the Board.").
13

The Board's statement, however, reflects a misunderstanding of Mr. Cogburn's arguments
below. Mr. Cogburn did not argue that he had a pending disability compensation claim for posttraumatic stress disorder. Instead, he asserted that his 1974 claim for a "severe nervous condition" and a 1975 informal claim were never addressed by the regional office and he requested that his claims be adjudicated as soon as possible. R. at 551-54. The regional office rejected that argument in its October 2002 rating decision and found that, "due to the close association between depressive neurosis and [post-traumatic stress disorder]," Mr. Cogburn's 1974 claim for a nervous condition was adjudicated in 1983 as a claim for post-traumatic stress disorder. R. at 475-78.
The record demonstrates that Mr. Cogburn initiated an appeal from the October 2002 rating
decision by filing a Notice of Disagreement and a Substantive Appeal. The January 2008 Board
decision, however, failed to review the October 2002 regional office determination that his 1974 claim was finally adjudicated. See Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (noting that "[w]hen a claim is properly appealed to the Board, the Board is vested with the jurisdiction to review '[a]ll questions in a matter which under section 511(a) of [title 38] is subject to a decision of the Secretary'" (quoting 38 U.S.C. § 7104(a)); cf Godfrey v. Brown, 7 Vet.App. 398, 408-10 (1995) (Board lacks jurisdiction over claim not first presented to and adjudicated by the regional office). "'The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision.'" Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) (quoting Brannon v. West, 12 Vet.App. 32, 34 (1998)). See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) (holding that the Court has jurisdiction to review whether the Board erred in failing to address a reasonably raised claim). The Court therefore finds that it was error for the Board not to address Mr. Cogburn's
disagreement with the regional office's refusal to adjudicate what Mr. Cogburn argued were pending claims.5
14

On remand, the Board must address Mr. Cogburn's contention that his 1974 claim for a
severe nervous condition and a 1975 informal claim remain pending and unadjudicated. As part of its analysis, the Board may be required to consider whether (1) Mr. Cogburn filed more than one claim in 1974; (2) what claim(s) were adjudicated in 1974; (3) what disabilit(ies) Mr. Cogburn claimed in 1983, to include depressive neurosis, schizophrenia, and post-traumatic stress disorder; (4) whether the 1983 claim was for the same disability as the 1974 claim; and (5) what, specifically, was adjudicated in the 1985 decision? If the Board determines that any claims remained pending, the Board must also consider whether the implicit denial doctrine applies to those claims. The Board must adequately explain any determination that Mr. Cogburn's claims were implicitly denied by the Board's November 1985 decision and, in doing so, the Board must address each of the factors outlined below.
1. Relatedness of Claims
The first factor to consider in the implicit denial analysis is whether Mr. Cogburn's November
1974 claim and his June 1983 claim are identical or related claims. The Court notes that on both
applications, Mr. Cogburn referred to a "nervous condition," but that his June 1983 claim was termed
and developed by VA as a claim for the strict disability of post-traumatic stress disorder. The
requirement that a claimant identify the benefit sought means that the claimant must describe the
nature of the disability for which he is seeking benefits. Ingram, 21 Vet.App. at 256. A claimant
may satisfy this requirement by referring to a body part or system that is disabled or by describing
symptoms of a disability. See Clemons, 23 Vet.App. at 5 (stating that when determining the scope
of a 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"); 38 C.F.R. § 3.159(c)(3) (2010); see also R. at 912 (VA Form 21-526, Veteran's
Application for Compensation and Pension, Block 24 instructing appellant to provide the "NATURE
OF SICKNESS, DISEASE OR INJURIES FOR WHICH THIS CLAIM IS MADE") (emphasis
added); cf Boggs, 520 F.3d at 1330 (holding that claims based on separate and distinctly diagnosed
conditions must be considered separate and distinct claims for purposes of VA benefits); Velez v.
Shinseki, 23 Vet.App. 199, 203 (2009) (holding that, in the context of reopening, a claim for a
15
nervous condition was not a new claim based on a distinctly diagnosed condition from a previously
adjudicated claim for a stress disorder).
Here, because the Board did not address Mr. Cogburn's argument that his 1974 claim
remained pending and unadjudicated, the Board did not make any findings as to whether the
November 1974 and June 1983 claims were identical or closely related. Accordingly, on remand,
the Board should determine whether the implicit denial doctrine applies to Mr. Cogburn's claim and,
if so, whether his November 1974 and June 1983 claims are identical or related. See Clemons, 23
Vet.App. at 5.
2. Specificity of Adjudication
The second factor to consider in Mr. Cogburn's case is whether a reasonable person could
infer that the prior 1974 claim for a severe nervous condition and any informal claim for
schizophrenia were denied by the November 1985 Board decision and the prior adjudications
associated with the June 1983 claim. In the context of Mr. Cogburn's appeal, the Board must
consider that he filed a claim for a nervous disorder, submitted treatment records showing a
diagnosis of schizophrenia, received a rating decision denying compensation benefits for posttraumatic
stress disorder, continued his appeal for post-traumatic stress disorder, and received a
Board decision that denied benefits based on legal criteria unique to post-traumatic stress disorder,
i.e. the absence of a recognizable stressor, while also suggesting that the preponderance of the
evidence showed that the appellant most likely suffered from schizophrenia.
The Court reminds the Board that the standard to be applied when analyzing the specificity
of an adjudication in an implicit denial doctrine analysis is that of a reasonable person.
The reasonable man connotes a person whose notions and standards of behavior and
responsibility correspond with those generally obtained among ordinary people in our
society at the present time, who seldom allows his emotions to overbear his reason
and whose habits are moderate and whose disposition is equable. He is not
necessarily the same as the average man–a term which implies an amalgamation of
counter-balancing extremes.
BLACK'S LAW DICTIONARY 1380 (9th ed. 2009) (quoting R.F.V. Heuston, SALMOND ON THE LAW
OF TORTS 56 (17th ed. 1977)); see also Adams, 568 F.3d at 963 (discussing this Court's holding in
Ingram, and stating that in applying the implicit denial doctrine, the Court must "determine whether
16
[VA] provided sufficient information for a reasonable claimant to know that he would not be
awarded benefits for his asserted disability" (emphasis added)); id. at 964 ("[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." (emphasis added)); see also
Ingram, 21 Vet.App. at 243.
Accordingly, on remand, the Board must determine 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-traumatic stress disorder."
3. Timing of Claims
As noted above, the Federal Circuit has stated that the timing of claims is "highly significant"
to an implicit denial doctrine analysis. The timing of the claims in Mr. Cogburn's case is
distinguishable from the timing of the claims filed in Adams and Deshotel. In Deshotel, the two
claims in question were filed simultaneously, whereas in Adams, the two claims were filed only six
months apart. Here, Mr. Cogburn first filed claims for VA compensation and pension benefits in
1974. Both the compensation and pension claims were filed at the same time, and on the same claim
form, i.e., in a single application. As noted above, the pension claim was explicitly adjudicated in
March 1975. There is a span of approximately nine years between when Mr. Cogburn first filed his
claim for a nervous condition in 1974 and when he filed another claim for a nervous disorder in June
1983. It is therefore unclear whether this nine-year gap would allow for Mr. Cogburn to reasonably
determine that his 1974 compensation claim was implicitly denied by the adjudication of his
subsequent claim, especially given that there were several psychiatric diagnoses noted in the record.
The Board does not discuss the timing of the claims in its decision. On remand, therefore,
the Board must weigh the nine year-span between the filing of the two claims in this case, in addition
to the other factors discussed herein.
4. Representation
Finally, the Court notes that the Board also did not make any findings of fact as to how Mr.
Cogburn's representation affected his appeal or the prior adjudications of his claims. The Court
observes that at the time of his November 1974 claim, Mr. Cogburn was represented by the Disabled
17
American Veterans. At the time of his June 1983 claim, Mr. Cogburn was represented by the
Veterans of Foreign Wars, and the Veterans of Foreign Wars continued to represent Mr. Cogburn
before the Board. When Mr. Cogburn reopened his claim for post-traumatic stress disorder in
October 1991, he was represented by the Arizona Veterans Service Commission. Mr. Cogburn was
then represented by the American Legion, who represented him during his June 2007 Board hearing
and at the time of the January 2008 Board decision. These are all veterans service organizations, and
there is no indication that Mr. Cogburn was represented by an attorney at any point prior to his
appeal to this Court. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (holding that
"representation by an organizational aide is not equivalent to representation by a licensed attorney.
Although aides from veterans' service organizations provide invaluable assistance to claimants . .
. they are 'not generally trained or licensed in the practice of law.'" (quoting Cook v. Brown, 68 F.3d
447, 451 (Fed. Cir. 1995))). Although representation by an attorney is but one factor to be
considered during an implicit denial doctrine analysis, it nevertheless plays a role in determining the
degree to which a pleading will be liberally construed. See Robinson, 21 Vet.App. at 554. To this
end, whether a claimant is represented is particularly relevant to what disability was initially claimed
and how any decision based on the implicit denial doctrine is interpreted.
Accordingly, in its analysis on remand, the Board should account for the fact that Mr.
Cogburn was represented by organizational aides prior to his appeal to this Court.
E. Summary
In summary, the Court concludes that the implicit denial doctrine does not violate a
claimant's constitutional rights. In analyzing the applicability of the implicit denial doctrine to a
particular claim, the Board must look to several factors, including the relatedness of claims, the
specificity of the adjudication, the timing of the claims, and whether the claimant was represented
at the time the claims were filed.
In this case, the Board did not discuss the applicability of the implicit denial doctrine and
therefore did not discuss any of the factors outlined in this decision. To the contrary, the Board
analyzed Mr. Cogburn's claim as a claim for an earlier effective date–a characterization Mr. Cogburn
has repeatedly disagreed with throughout the adjudication of his current appeal. The Board found
that Mr. Cogburn was not entitled to an earlier effective date pursuant to this Court's holding in Rudd
18
v. Nicholson, 20 Vet.App. 296 (2006). Although the Board recited the law that applies to the
implicit denial doctrine analysis in its section on pertinent laws and regulations, the Board made no
explicit findings of fact regarding whether the doctrine applied in this case. Accordingly, because
of the factual nature of the implicit denial doctrine assertions on appeal, the Court must remand this
case to the Board to make the proper factual determinations concerning the implicit denial doctrine
in the first instance and to readjudicate the matter based on those factual findings. See Webster v.
Derwinski, 1 Vet.App. 155, 159 (1991) (the Court is not to conduct de novo factfinding but rather
is to remand to the Board to find facts in the first instance, subject to later review by the Court); see
also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (explaining that the Supreme Court
has held that when a court of appeals reviews a lower court's decision, it may remand it if the
previous adjudicator failed to make findings of fact essential to the decision); Tucker v. West, 11
Vet.App. 369, 374 (1998) (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").
III. CONCLUSION
Upon consideration of the foregoing, the January 28, 2008, Board decision is VACATED
and the matter is REMANDED for further adjudication consistent with this decision.
SCHOELEN, Judge, concurring: Although I agree with the majority's ultimate holding, I
respectfully dissent from that part of the decision that includes representation by counsel as a factor
to consider when determining whether a claim has been implicitly denied.
In the context of implicit denials, the majority finds that whether a claimant is represented
is particularly relevant at two, separate and distinct, times during the claims process. First, they state
that it is relevant to determining "what disability is claimed" – presumably because an attorney has
the legal experience and knowledge to effectively communicate a request for entitlement to a specific
benefit. Ante at 17. Second, they state that it is relevant to "how any decision based on the implicit
denial analysis is interpreted." Ante at 17. Here, they rely on an attorney's ethical obligation to
provide competent representation to his client.
19
Undoubtedly, representation by counsel can be an invaluable asset to the unsophisticated layclaimant
who may not understand the labyrinths of VA's adjudication system. One would expect the
added benefit of more precise pleadings, succinct legal arguments, and a greater understanding of
the agency's adjudication of the claim and the appellate process. However, while the presence of
counsel can positively influence a claim's processing and the claimant's understanding of VA's
decision on the claim, I do not believe that there is any basis in law for finding the presence of
counsel to alleviate, or alter the scope of, VA's obligations to a claimant.
VA's duty to liberally construe and sympathetically read a veteran's pleadings generally
applies equally to represented and unrepresented claimants. I respectfully submit that the majority
erroneously attempts to draw a distinction between represented and unrepresented claimants by
stating that the presence of counsel "may be a factor in determining the degree to which the pleading
is liberally construed." Ante at 11 (citing Robinson v. Peake, 21 Vet.App. 545, 554 (2008))
(emphasis added). However, on review, the Federal Circuit flatly rejected this notion in Robinson
v. Shinseki, 557 F.3d 1355, 1360 (Fed. Cir. 2009), when it explained that "it would defeat the
congressional purpose of increasing the much needed attorney assistance if direct appeal attorney
filings were read in a less sympathetic light than pro se filings." See also Comer v. Peake, 552 F.3d
1362, 1370 (Fed. Cir. 2009) ("To hold that a veteran forfeits his right to have his claims read
sympathetically if he seeks assistance . . . would be to discourage veterans from seeking the muchneeded
assistance."); Robinson v. Peake, 21 Vet.App. at 564 (Schoelen, J., dissenting) (stating that
"the majority's artificial distinction between represented and unrepresented claimants . . impede[s]
'Congress's clear desire to create a framework conducive to efficient claim adjudication.'" (quoting
Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds sub nom. Shinseki
v. Sanders, 129 S.Ct. 1696 (2009))). The Federal Circuit clearly held that "the veteran's efforts to
raise issues on direct appeal should be liberally construed whether or not the veteran is represented
by counsel." Robinson, 557 F.3d at 1362; see also Roberson v. Principi, 251 F3d. 1381, 1384 (Fed.
Cir. 2001) (VA is obligated to "determine all potential claims raised by the evidence"); but see
Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) (holding that the duty to liberally read
pleadings does not apply to filings by counsel alleging clear and unmistakable error).
20
I recognize that common sense dictates that represented claimants are more likely to
understand from VA's decision that a claim has been implicitly denied. However, my esteemed
colleagues fail to cite any authority to support the notion that notice of a decision may be lessened
if the claimant is represented nor do they explain how VA would satisfy its obligation to provide
notice of a decision to a represented claimant. "An elementary and fundamental requirement of due
process in any proceeding . . . is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Although there
are circumstances that require enhanced due process protections beyond what is ordinarily expected,
I am not aware of any case law that permits less solely because a party is represented. See Mennonite
Bd. of Missions v. Adams, 462 U.S. 791, 799 (1983) ("[A] party's ability to take steps to safeguard
its interests does not relieve the State of its constitutional obligation."); Mullane, 339 U.S. at 319-20
("In some situations the law requires greater precautions in its proceedings than the business world
accepts for its own purposes. In few, if any, will it be satisfied with less."); see also Jones v.
Flowers, 547 U.S. 200, 221 (2006) ("[T]he constitutionality of a particular notice procedure is
assessed ex ante, not post hoc."); Covey v. Town of Somers, 351 U.S. 141, 147 (1956) (compliance
with statutory notice requirements found insufficient in the case of a person known to be
incompetent who is without the protection of a guardian). Moreover, the majority does not explain
what standard should be adopted – if not the reasonable person standard – when assessing whether
VA has provided adequate notice of a decision. Just how cryptic can VA's decision be and still
satisfy the "reasonable claimant" standard?
Finally, the majority provides no explanation for expanding upon the Federal Circuit's
decision in Adams v. Shinseki, which clearly identified three factors to consider when determining
whether it would be clear to a reasonable person that an adjudication that expressly addresses one
claim implicitly denied another: (1) the language of the decisions and the description of the evidence
considered in the VA adjudication, (2) the relatedness of the claims, and (3) the timing of the claims.
568 F.3d 956, 963-64 (Fed. Cir. 2009). The Federal Circuit did not consider whether the appellant
was represented by counsel in determining whether the appellant received fair notice of a VA
decision and the majority provides no basis for injecting an additional factor into the analysis.
21
Therefore, although I concur with the majority's decision, I cannot agree with its inclusion
of representation by counsel as a factor to consider when determining whether a claim has been
implicitly denied.
1