Application of Cogburn by Single Judge, Implicit Denial Rule

Excerpt from Single Judge Decision, below:

"In this regard, the Court also notes the recent opinion in Cogburn v. Shinseki, __ Vet.App. __, No. 08-1561, slip op. at 8-18 (Dec. 13, 2010) (setting forth several factors for the Board to consider in determining the applicability of the implicit denial doctrine and remanding for 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), as well as this Court's earlier decision in Smith, 10 Vet.App. at 314, which held that "as a matter of law that the Board's failure to adjudicate the TDIU claim was properly before it constitutes a final adverse B[oard] decision with respect to that claim." The Court notes that the Board made the following additional finding: "Even if such issues had been raised, at most the Board would have an obligation to refer any unadjudicated issues back to the RO. A failure to refer an issue back to the RO would not have constituted denial of the claim." R. at 13. In making this additional alternative finding, the Board failed to consider the Court's caselaw on the implicit denial doctrine. On remand, if the Board determines that the tinnitus and/or right ear hearing loss claim were reasonably raised before the Board issued its October 1997 decision, the Board must determine, based on the decisions of this Court and the Federal Circuit, whether the Board's October 1997 decision (and underlying 1996 RO decision) denying the left ear hearing loss claim constituted an implicit denial of the claims for right ear hearing loss and tinnitus.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 08-2824
JOHN F. CAMERON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant, John F. Cameron, Esq., as the attorney for veteran Robert T. Mask, appeals through counsel a May 14, 2008, decision of the
Board of Veterans' Appeals (Board) that (1) denied entitlement to an additional award of attorney's fees from past-due benefits based on a decision of April 22, 2004 (which granted service-connected compensation for
jungle rot/tinea pedis and a left knee disabilitywith arthritis); and (2) denied entitlement to an award of attorney's fees from past-due benefits based on a rating decision dated May 20, 2004, which awarded service connection for right ear hearing loss and tinnitus. The parties filed briefs, and the appellant filed a reply brief. This appeal is timely, and this Court has
jurisdiction under 38 U.S.C. §§ 7252(a), 7263, and 7266(a). This appeal is appropriate for single-judge review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
This appeal calls upon the Court to address (1) whether a claim for tinnitus and right-ear hearing loss was presented as part of Mr. Mask's "case" for purposes of 38 U.S.C. § 5904(c) at the time of the Board's October 21, 1997, decision; and (2) whether the "past due benefits period" in connection with the award of VA compensation for jungle rot/tinea pedis
and a left-knee disability is April 22, 2004, the date of the RO award of service connection or, rather, May 24, 2004, the date that the RO notified the veteran of the decision. For the reasons that follow, the Court will vacate in part the Board decision and remand in part to the Board for readjudication of the matter of attorney fees in connection with the right ear hearing loss and tinnitus.

The Court will affirm the Board's determination that the "past due benefits period" in connection with the award of VA
compensation for jungle rot/tinea pedis and a left-knee disability is April 22, 2004, the date of the RO award of service connection.

I. FACTS
A. Right Ear Hearing Loss and Tinnitus
In April1995, Mr. Mask filed a claim for serviceconnection for, among other thing,"hearing loss in left ear - 1961." Record (R.) at 1599. Subsequent development of the claim showed hearing loss in both ears and tinnitus: A May 1995 VA examination determined that, based on audiological
testing, Mr. Mask had "a mild to severe, high frequency, sensorineural hearing loss for the right ear and a moderate to severe, high frequency, sensorineural hearing loss for the left ear." R. at 1567-68.
Notably, the pure-tone thresholds for the 2,000 and higher frequencies for both the right and left ears exceeded 26 decibels, and the speech recognition score for the right ear
was 80% and for the left ear
was 76%. R. at 1567. The report contained a history that included Mr. Mask's account of noticing "decreased hearing since 1963 when the ship he was on rolled and he was
tossed into his anti-aircraft weapon." He stated that he "was exposed to the excessive noise of anti- aircraft weapons for three years while in the Navy and weapons on aircraft for two years while in the Army." R. at 1567. The report also noted Mr. Mask's account of having tinnitus since 1962 or 1963
that Mr. Mask "attributes to the excessive noise exposure of anti-aircraft guns as a gunner's mate for three years while in the military." R. at 1567. Mr. Mask described "the tinnitus as a unilateral, constant, high pitched, ringing sound in his left ear." Id.
A September 1996 VA regional office (RO) decision noted the results of the May 1995 VA report as to both ears and denied service connection "for hearing loss, left ear" because the service medical records showed no complaints of, treatment for, or diagnosis of hearing loss in Mr. Mask's left ear. R. at 1532. Mr. Mask filed a timely Notice of Disagreement as to the claims denied by the RO, and submitted a letter opinion dated August 21, 1996, from his private doctor. R. at 1511, 1526. The doctor conducted an audiological examination and stated:
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Mr. Mask is in with complaints of hearing deficit of long standing.
Audiological assessment is performed after examining and cleansing the ears. It reveals a sensorineural hearing loss compatible with prior noise exposure. Patient has been in
the military around loud noises and gunfire in the past. I feel that his
hearing deficit
is of the type that is frequently associated with prior noise exposure of
that type. I
have recommended that consideration be given for a hearing aid fitting for
his ears
accordingly.
R. at 1511. Mr. Mask gave sworn testimony before a hearing officer in
January 1997. He noted that
he first noticed having a problem with his ears when he fired guns out at
sea during service without
ear protection. R. at 1483-84. After firing the guns, he would have
ringing in his ears that lasted
hours or days. R. at 1484. He noted that most of his approximately three
years in the Navy was
spent at sea as a gunner's mate. Id. After he left service, his "ears kept
ringing all the time" and the
condition would get worse. R. at 1485. He explained that the left ear
rings continuously and never
stops. Id.
In his Substantive Appeal to the Board dated April 1997, Mr. Mask
identified the issues on
appeal as including "service connection for bilateral hearing loss due to
noise trauma." R. at 1475.
In an October 21, 1997, decision, the Board denied entitlement to
serviceconnection for hearing loss
disability of the left ear based on its finding that the claim was not
well grounded. R. at 391. The
Board determined that there was "no competent evidence of record
attributing a current left ear
hearing loss disability to the veteran's active service or to an event or
injurytherein." R. at 392, 401-
03.
In March 1998, after filing an appeal to this Court (Docket No. 98-0287),
Mr. Mask hired
Mr. Cameron on a contingency fee basis "to provide legal services in
connection with an appeal to
the U.S. Court of Veterans Appeals and in connection with all proceedings
for benefits before the
U.S. Department of Veterans Affairs." R. at 570. Under the fee agreement,
Mr. Cameron would
receive a fee of 20% "of the total amount of any past-due benefits awarded
on the basis of the
Client's claim with the U.S. Department of Veterans Affairs." Id. VA would
pay Mr. Cameron
directly from the benefits recovered by Mr. Mask. Thereafter, the parties
filed a joint motion to
remand to the Board the matter of hearing loss, and the motion was granted
bythe Court. R. at 1429,
1430-33. The parties agreed that the "claim for his hearing loss was well
grounded" because he was
3


exposed to loud noises in service, and the private doctor had opined that
the "current hearing loss
was of the type usually caused by exposure to loud noises." R. at 1431.
On remand in January 2002, the Board granted service connection for
hearing loss in the left
ear. R. at 1172-82. A September 2002 RO decision assigned a 0% rating,
effective from April 25,
1995. R. at 1136-38. In November 2002, Mr. Mask, through his attorney, Mr.
Cameron, filed an
NOD and specifically sought a higher initial rating for left ear hearing
loss and stated his
disagreement with the RO's failure to find that his right ear hearing loss
was service connected. R. at
1110. A May 2004 RO decision granted service connection for bilateral
hearing loss and assigned
an 80% disability rating, effective from February 5, 2004, the date that
the RO determined that his
claim was received. R. at 331-32. The RO noted the private doctor's report
from 1996. R. at 332.
The RO also granted service connection for tinnitus and assigned a 10%
rating, effective April 25,
1995. Id. The RO noted that the May 1995 VA examination showed that the
veteran had reported
the presence of tinnitus since 1962. R. at 333.
In April 2005, the RO determined that Mr. Cameron was not entitled to
payment of attorneys
fees from past due benefits arising from the May 2004 award of service
connection for the right ear
hearing loss and for tinnitus. R. at 596. The RO reasoned that the Board
did not make a final
decision on this case. Id. Mr. Cameron filed an NOD in June 2005. R. at
192-97. An October 2005
Statement of the Case determined that the issues of service connection for
right ear hearing loss and
tinnitus were never issues in a final Board decision. R. at 172.
In May 2006, Mr. Mask notified VA that Mr. Cameron was terminated as his
attorney in
December 2004. R. at 87.
B. Jungle Rot/Tinea Pedis and Left Knee Disability
In a decision dated April 22, 2004, the RO granted service connection for
jungle rot and a
left knee disability. R. at 825-30. The parties here do not dispute that
the RO notified Mr. Mask of
the decision by letter dated May 24, 2004. See R. at 6. Subsequently, in
June 2006, the RO
determined that Mr. Cameron was entitled to $2,922.60 for attorney fees
based on that decision. R.
at 63. The RO stated: "These attorney fees are payable from April 25, 1995,
effective date of the
awards of service connection for left knee disability with arthritis and
of service connection for
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jungle rot/tinea pedis, to April 22, 2004, the date of the VA Regional
Office Rating decision on these
issues." Id. Mr. Cameron appealed. He disagreed with the RO finding that
the past due period
extends from April 25, 1995, until April 22, 2004, and argued that the
period should extend from
April 25, 1995, until May 14, 2004, when the RO mailed its notice of
decision to Mr. Mask and to
his office. R. at 51 (relying on 38 U.S.C. § 5104(a)).
C. May 14, 2008, Board decision
In the May 2008 Board decision on appeal, the Board (1) denied entitlement
to an award of
attorney's fees based on a rating decision dated May20, 2004, which
awarded service connection for
right earhearing loss and tinnitus; and (2)deniedentitlementto anawardof
additional attorney's fees
based on a decision of April 22, 2004 (which granted service connection
for jungle rot/tinea pedis
and a left knee disability) to include consideration of whether the past
due benefits period upon
which the award of attorney's fees was based should include a period
subsequent to April 22, 2004.
R. at 3-14. As to the requested fees based on the award for the hearing
loss and tinnitus, the Board
found that the issues granted in the May 20, 2004, decision were never the
subject of a final decision
by the Board. R. at 4. As to the additional fees based on the award for
jungle rot and left knee
disability, the Board found that the RO properly calculated the "past due
benefits" period as ending
on the date of the April 22, 2004, RO decision granting the benefits and
determined that there was
no support in the regulation, 38 C.F.R. § 20.609(h0(3), that the date of
notification should be the
determining date. R. at 8.
II. ANALYSIS
The appellant primarily makes two arguments on appeal: First, he argues
that the Board
failed to provide an adequate statement of reasons or basis for its
determination that claims for right
ear hearing loss and tinnitus were not reasonably raised by the evidence
prior to the October 1997
Board decision. Appellant's (App.) Brief (Br.) at 11-20. Second, he also
contends that, pursuant to
38 U.S.C. § 5904(d), attorney's fees should be paid up to the date that a
veteran's benefits are paid
or received by the veteran, not only to the date of the decision awarding
the benefits. App. Br. at 20-
27.
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The Secretary maintains that the Court should affirm the Board's finding
that the appellant
is not entitled to an award of fees for the grant of past-due benefits for
right ear hearing loss and
tinnitus. Secretary's Br. at 9-12. The Secretary argues that the Board
devoted several pages
enumerating the evidence supporting its conclusion that the "claim for
right ear hearing loss was not
reasonably raised until January 2004." Id. at 11. The Secretary, however,
is silent with respect to
whether the Board appropriately concluded that a claim for tinnitus was
not reasonably raised prior
to the 1997 Board decision. See Secretary's Br. at 1-12. Indeed, the
Secretary's brief does not
include any relevant facts in this case that pre-date the 1998 attorney-
fee agreement. See id. at 2-3.
As to the appellant's second argument, the Secretarymaintains that his
interpretation of the language
at issue in section 5904(d)(3) is provided in his own regulation, 38 C.F.R.
§ 20.609(h)(3), which
provides for "the date of the grant of the benefit," and the Court should
defer to his reasonable
interpretation as being the actual date of the decision. Id. at 7-8. He
maintains that his interpretation
is not plainly erroneous or inconsistent with the regulation itself. Id.
at 9 (citing Haas v. Peake,
525 F.3d 1168, 1186 (Fed. Cir. 2008).
A. Attorney's Fees Based on the Award for Right Ear Hearing Loss and
Tinnitus
At the time Mr. Cameron undertook representation of Mr. Mask in 1998,
section 5904(c)
provided, in pertinent part:
[A] fee maynot be charged, allowed, or paid for services of agents and
attorneys with
respect to services provided before the date on which the Board of
Veterans' Appeals
first makes a final decision in the case. Such a fee may be charged,
allowed, or paid
in the case of services provided after such date only if an agent or
attorneyis retained
with respect to such case before the end of the one-year period beginning
on that
date.
38 U.S.C. § 5904 (c)(1) (emphasis added).1
Under 38 C.F.R. § 20.609(c), the implementing
regulation for section 5904(c)(1) then in effect, an attorney could charge
fees only if the following
conditions have been met: (1) A final decision has been promulgated by the
Board with respect to
the issue, or issues involved; and (2) the attorney was retained not later
than one year following the
Section 5094(c)(1) was subsequently amended to eliminate the requirement
of a final Board decision, instead
providing that "a fee may not be charged, allowed, or paid for services of
agents or attorneys with respect to services
provided before the date on which a notice of disagreement is filed with
respect to the case." See Veterans Benefits,
Health Care, and Information Technology Act of 2006, Pub. L. 109-461, 120
Stat. 3407 (effective June 20, 2007).
1
6


date that the decision by the Board with respect to the tissue, or issues
involved was promulgated.
A finding by the Board with respect to a fee agreement is reviewable by
the Court. See 38 U.S.C.
§ 7263(d).
The U.S. Court of Appeals for the Federal Circuit has explained that a "
case" within the
meaning of section 5904(c) "encompasses 'all potential claims raised by
the evidence, applying all
relevant laws and regulations, regardless of whether the claim is
specifically labeled.'" Carpenter
v. Nicholson, 452 F.3d 1379, 1384 (Fed. Cir. 2006) (quoting Roberson v.
Principi, 251 F.3d 1378,
1384 (Fed. Cir. 2001)) (emphasis added). The Federal Circuit has also "
repeatedly endorsed liberal
and broad constructions of veterans' claims." Jackson v. Shinseki, 587 F.
3d 1106, 1109 (Fed. Cir.
2009).
In this case, the Court is called upon to address whether Mr. Mask's
hearing loss for the right
ear and tinnitus were presented as part of his "case" for purposes of
section 5904(c) at the time of
the Board's October 1997 decision. If hearing loss for the right ear and
tinnitus were part of the case,
then Mr. Cameron is entitled to certain attorney's fees related to the
payment of right ear hearing loss
and tinnitus benefits. See Jackson, supra; see also Lippman v. Shinseki,
23 Vet.App. 243, 255
(2009) (discussing section 5904(d)(1) and reasonableness and excessiveness
of fees under section
5904(c)(3)(A)). If theywere not, then the Board had yet to make "a final
decision" on the matter and
Mr. Cameron is not entitled to attorney's fees on the matter.
Mr. Cameron argues now on appeal, as he did before the Board in the June
2005 NOD, that
prior to the October 1997 Board decision the bilateral nature of Mr.
Mask's hearing loss and tinnitus
were raised by the veteran or his veterans service organization (VSO). For
example, the May 1995
VA examination report (R. at 1567-68); the private doctor's letter opinion (
R. at 1511); a September
1996 VSO submission that expressly amended the claim to define the claim
as one for bilateral
hearing loss (see R. at 542 (July 2008 letter from Mr. Cameron referring
to September 1996 VSO
letter that is not in the record before the Court)); and the VSO's 1997
submission to VA that listed
one of the issues as "service connection for bilateral hearing loss due to
noise trauma (R. at 1475)).
Mr. Cameron contends that in 1997 the Board failed to adjudicate the
reasonably raised bilateral
hearing loss and tinnitus claims. App. Br. at 15-16 (citing In re Smith,
10 Vet.App. 311, 314 (1997).
He contends that the Board's 2008 decision now on appeal
consideredonlytheSeptember 1996 VSO
7


submission and failed to address the pre-October 1997 medical evidence
that Mr. Cameron had
argued in his NOD supported his contention that those claims had been "
reasonably raised." App.
Br. at 17.
In this case, the Board determined that the claims for service connection
for right ear hearing
loss and tinnitus were not the subject of a final Board decision within
the meaning of 38 C.F.R.
§ 20.609. R. at 12. The Board specificallystated: "The Board notes that
the Board decision of 1997
clearly did not explicitly render a decision on either the claim for
service connection for right ear
hearing loss o[r] tinnitus." R. at 12. Although the Board recognized that
Mr. Mask's VSO
representative in September 1996 "had indicated that the claim should be
amended to include
bilateral hearing loss," the Board placed a heavy emphasis on Mr. Mask's
characterization of the
issue as being one for service connection for the left ear and that,
therefore, "the RO properly
addressed only that issue during the period prior to the Board's 1997
decision." R. at 13. In making
its determination, the Board did not consider any of the evidence noted in
the paragraph above.
Instead, the Board, without reviewing any of the evidence of record in
October 1997—i.e., the 1995
VA medical report noting hearing loss in both ears as well as tinnitus,
the 1996 private doctor's letter
opinion noting that hearing loss in both ears is attributed to noise
exposure during service—merely
stated that the issues of hearing loss in the right ear and tinnitus were
not before the Board in October
1997. The Court notes that Mr. Mask suggested during the processing of his
1995 claim for benefits
that his hearing condition was attributable to service, and the evidence
suggested that the hearing
problems were related to service. The Board does not address any of the
relevant caselaw that
requires a liberal and broad construction of veterans' claims. See, e.g.,
Roberson, supra; see also
Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) ("Like the
regional office, the Board is
required to construe all of the veteran's arguments in a liberal manner." (
citations and internal
quotation marksomitted));38 C.F.R. § 20.202 (requiringBoard to
construeanappellant's arguments
"in a liberal manner for purposes of determining whether they raise issues
on appeal."). In addition,
the Board failed to explain how the 10% disability rating for tinnitus is
effective from April 1995
without finding that the claim for tinnitus had been reasonably raised
prior to the October 1997
Board decision.
8


Because the Board, in the 2008 decision on appeal, failed to consider the
evidence of record
and apply all laws and regulations in determining whether the issues of
right ear hearing loss and
tinnitus were before the Board in October 1997, the Board decision is
inadequate for judicial review
and the matter will be remanded. See 38 U.S.C. § 7104(d)(1) (requiring
the Board to provide a
written statement of the reasons or bases for its "findings and
conclusions[ ] on all material issues
of fact and law presented on the record"); see also Carpenter, 452 F.3d at
1384 (holding that a claim
for total disability and a claim challenging the effective date through a
clear and unmistakable error
claim are the same "case" for purposes of section 5904(c)); cf. Clemons v. Shinseki, 23 Vet.App. 1, 4-5 (2009) (stating that a veteran has no special medical expertise, but may testify as to symptoms he can observe, and holding that the Board may not deny a claim for benefits based on one condition when the evidence submitted and developed during the processing of the claim showed that the claimant's symptoms emanated from another condition).

In this regard, the Court also notes the recent opinion in Cogburn v. Shinseki, __ Vet.App. __, No. 08-1561, slip op. at 8-18 (Dec. 13, 2010) (setting forth several factors for the Board to consider in determining the applicability of the implicit denial doctrine and remanding for 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), as well
as this Court's earlier decision in Smith, 10 Vet.App. at 314, which held that "as a matter of law that the Board's failure to
adjudicate the TDIU claim was properly before it constitutes a final adverse B[oard] decision with respect to that claim." The Court notes that the Board made the following additional finding: "Even if such issues had been raised, at most the Board would have an obligation to refer any unadjudicated issues back to the RO. A failure to refer an issue back to the RO would not have constituted denial of the claim." R. at 13. In making this additional alternative finding, the Board failed to consider the Court's caselaw on the implicit denial doctrine. On remand, if the Board determines that the tinnitus and/or right ear hearing loss claim were reasonably raised before the Board issued its October 1997 decision, the Board must determine, based on the decisions of this Court and the Federal Circuit, whether the Board's October 1997 decision (and underlying 1996 RO decision) denying the left ear hearing loss claim constituted an implicit denial of the claims for right ear hearing loss and tinnitus.
9


B. Additional Attorney's Fee Based on Jungle Rot/Tinea Pedis and Left Knee Disability
Mr. Cameron contends that the Board improperly relied on a precedential
General Counsel opinion and 38 C.F.R. § 20.609(h)(3) to reach the conclusion that the term "date of the grant of the
benefit" means the actual date of the decision which granted the benefit.
He asserts that the
governing statute, 38 U.S.C. § 5904(d)(3), is clear on its face that the
language "the date of the final
decision of the Secretary, . . . ." means the date the claimant was
notified of the decision. App. Br.
at 20-26.
The Secretary correctly notes that the statute is clear on its face that "
the date of the final
decision of the Secretary, . . . ." means the date of the decision
granting the benefit sought, which is
what the Board found. Secretary's Br. at 7. Likewise, the regulation is clear on its face, and to the extent it is not, the Secretary's interpretation is proper as it is "not erroneous or inconsistent with the regulations." Secretary's Br. at 8 (quoting Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006)).
Section 5904(d)(3) provides, in pertinent part: "In no event may the Secretary withhold for the purpose of such payment any portion of benefits payable for a period after the date of the final decision of the Secretary, the Board of Veterans' Appeals, or Court of Appeals for Veterans Claims
making (or ordering the making of) the award."
38 U.S.C. § 5904(d)(3); see 38 C.F.R. § 20.609(h)(3) (providing that past-due benefits "sum will equal the
payments accruing from the effective date of the award to the date of the initial disability rating decision"). The Court in Cox v. West, 12 Vet.App. 522, 522-23 (1999), specifically rejected the argument that the veteran's past-due
benefits should be calculated using the date
on which the Board actually mailed the underlying Board
decision awarding benefits and affirmed the Board's decision to use the
date of the underlying Board
decision. The Court concluded that there were no doubts that section 5904(d)(3) governs for determining the applicable date for terminating past-due benefits.2
In the instant case, the Court
concludes thatthereis noerror in the Board's interpretation and will affirm
the Board's determination in this regard.
"[I]t is generally in a veteran's interest to have an earlier termination
date for past-due benefits so that less
money is withheld from his benefits for attorney fees." Cox, 12 Vet.App.
at 523.
2
10


III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a review of the record, the May 14, 2008, Board decision is VACATED IN PART, and the matter of attorney fees in connection with right ear hearing loss and tinnitus is
REMANDED for readjudication consistent with this decision. The Board's determination that the "past due benefits period" in connection with the award of VA compensation for jungle rot/tinea pedis and a left-knee disability is April 22, 2004, the date of the RO award of service connection, is AFFIRMED.

DATED: December 29, 2010
Copies to:
Theodore C. Jarvi, Esq.
VA General Counsel (027)
11

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