Single Judge Application, Locklear v. Shinseki, No. 09-2675, Implicit Denial

Excerpt from decision below:
"Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing Mr. Strother that his Notice of Disagreement was untimely is not an adjudication and, therefore, cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009)(explaining that a claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[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."). Moreover, as noted above, VA mischaracterized Mr. Strother's untimely Notice of Disagreement as a request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January 1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965("[T]he implicit denial rule is, at bottom, a notice provision.");Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (stating that a claim is
10

implicitly denied "when a reasonable person would understand from a decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2289
WILLIE J. STROTHER, 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: Willie J. Strother appeals through counsel an April 17, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to an earlier
effective date for a total
disability rating based on individual unemployability. Record (R.) at 3-16.
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
April 2009 Board decision.
Because the Board's determination that neither Mr. Strother nor the record
raised the issue of
entitlement to a total disabilityrating based on individual
unemployability between September 1994
and April 2002 is not clearly erroneous and is supported by an adequate
statement of reasons or
bases, the Court will affirm the April 17, 2009, Board decision.
I. FACTS
Mr. Strother served on active duty in the U.S. Army from February 1981 to
February 1984
and in the U.S. Marine Corps from January 1986 to April 1989.


As of November 1992, Mr. Strother had been awarded a 30% disability
rating for Crohn's
disease,1
a 20% disability rating for status post-resection of his bladder, and a
noncompensable
disability rating for anemia.
In May 1993, Mr. Strother filed informal claims for increased disability
ratings for his
service-connected disabilities and indicated that he could not "get a job
or do anywork at all at [that]
time." R. at 487. A month later, he filed an application for increased
compensation based on
unemployability, asserting that his Crohn's disease prevented him from
securing or following
substantiallygainfulemployment. InMarch1994,theregionalofficedeniedhis
claims forincreased
disability ratings for his service-connected disabilities and denied
entitlement to a total disability
rating based on individual unemployability.
Later that month, Mr. Strother attended a VA medical examination. The VA
examiner's
report of Mr. Strother's medical historystated, in pertinent part, that, "[
a]fter discharge [in 1989] and
up to the present time, [Mr. Strother] has tried to work, but due to
diarrhea and abscesses of his
rectum and anus, [he] has been unable to keep a job and has become
unemployable." R. at 436.
Afterconductingageneralphysicalexamination, theexaminerdiagnosedMr.
Strotherwith "Crohn's
disease, postoperative" and noted that Mr. Strother had "large abscesses
and carbuncles[2
]
surrounding the rectum extending to the perineum" that caused "frequent
bleeding from his rectum"
that was "more active on any type of movement." R. at 438. In April 1994,
another VA examiner
confirmed this diagnosis. In September 1994, the regional office again
denied Mr. Strother's claims
for increased disabilityratings for his service-connected disabilities and
denied entitlement to a total
disability rating based on individual unemployability.
In December 1995, more than one year after the September 1994 regional
office decision,
Mr. Strother filed a Notice of Disagreement "with [the] decision to deny[
the] request for an increase
in [the disability] rating for Crohn's disease." R. at 398. Mr. Strother
did not make mention of any
Crohn's disease is "one of the principal forms of inflammatory bowel
disease, a chronic granulomatous disease
of the gastrointestinal tract of unknown etiology. . . . Characteristics
include scarring and thickening of the bowel wall
that frequently leads to intestinal obstruction, abscesses, and fistula
formation." DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 539 (31st ed. 2007) [hereinafter DORLAND'S].
Carbuncles are "a necrotizing infection of skin and subcutaneous tissue
composed of a cluster of boils . . . with
multiple formed or incipient drainage sinuses." DORLAND'S at 294.
2
1
2


of his other service-connected disabilities or the regional office's
denial of entitlement to a total
disabilityratingbased on individual unemployability. In January1996, VA
sent Mr. Strother a letter
explaining that his Notice of Disagreement was untimely and took no
further action with regard to
this submission.
In the meantime, in April 1995, Mr. Strother informed VA that he was "re[]
applying for
vocational rehabilitation." R. at 402. Specifically, he stated that he was "
now well enough to resume
[his] training" and submitted "medical proof that [he was]
medicallycapable to resume [] vocational
rehabilitation," id., including a letter from a VA physician stating that
he was "approved to restart
employment without restriction," R. at 403, and a pay stub indicating that
he had been employed
part-time since January 1995, R. at 404.
Over the next 7 years, Mr. Strother continued to receive treatment for his
service-connected
disabilities, including a 3-day hospitalization in July 2001. In June 2002,
Mr. Strother filed a claim
for an increased disability rating for Crohn's disease. In July 2002, he
was awarded a 60% disability
rating for Crohn's disease effective April 4, 2002, which increased his
combined disability rating to
70%, also effective April 4, 2002.
In September 2002, Mr. Strother submitted an application for increased
compensation based
on unemployability, asserting that he ceased working full-time in November
2001. In December
2002, a VA medical examiner opined that "at this time, [Mr. Strother]'s
Crohn's disease is active and
would interfere with his ability to be employed." R. at 316. Based on this
medical opinion, the
regional office awarded Mr. Strother a total disability rating based on
individual unemployability
effective April 4, 2002, the date that he was entitled to a 60% disability
rating for Crohn's disease.
Mr. Strother submitted a timely Notice of Disagreement with this decision
and subsequently
perfected his appeal with regard to the effective date assigned for his
total disability rating based on
individual unemployability.
Afterfurtherdevelopment, including a July2008 remand from this Court
premised on a joint
motion for remand, the Board in April 2009 issued the decision currently
on appeal, which denied
entitlement to an earlier effective date for a total disability rating
based on individual
unemployability. Specifically, the Board stated that:
3


[T]he record does not show that the [Mr. Strother]'s service-connected
disabilities
had worsened or that he had become unemployable due to his service-
connected
disabilities on a factually ascertainable date prior to April 4, 2002. In
addition, the
Board finds that none of [Mr. Strother]'s communications following the
September
1994 rating decision that denied him a [total disability rating based on
individual
unemployability] and prior to either April 4, 2002[,] or July 2002
constituted an
informal or formal claim for a [total disability rating based on
individual
unemployability].
R. at 10. The Board also determined that, "even if [] the December 1995
notice of disagreement had
been adjudicated as an increased rating claim, there was no medical
evidence at that time that
showed that any of [Mr. Strother]'s service-connected disabilities had
worsened or that he was
unemployable due to those disabilities." R. at 11 (emphasis added).
II. ANALYSIS
A. Issues on Appeal
As an initial matter, the Court notes that Mr. Strother only appealed that
portion of the
December 2002 regional office decision that assigned an effective date of
April 4, 2002, for his total
disability rating based on individual unemployability. See R. at 176-77 (
VA Form 9 indicating that
Mr. Strother was "only appealing the[] issue" of the effective date
assigned for his total disability
rating based on individual unemployability), 277 (December 2003 Notice of
Disagreement stating
that "it is [Mr. Strother's] contention that the effective date of [his]
rating for unemployabilityshould
be [January 1, 2002]"). Therefore, the December 2002 regional office
decision is final with regard
to Mr. Strother's claim for benefits for Crohn's disease. Moreover, the
April 2009 Board decision
currently on appeal was the result of a July 2008 joint motion for remand,
granted by this Court, that
stated:
[T]he parties agree that the Board should review the evidence of record
prior to [Mr.
Strother]'s July 2002 claim and make a determination whether there was any
communication that could be construed as an informal claim for [a total
disability
rating based on individual unemployability]. The Board should also offer
further
analysis and an adequate explanation as to whether or not [his] claim for [
a total
disability rating based on individual unemployability] should have been
referred for
extraschedular consideration in light of all of the pertinent evidence of
record.
4


R. at 42. Based on these instructions, drafted and agreed to
byrepresented parties, the Board limited
its April 2009 decision to consideration of whether Mr. Strother was
entitled to an effective date
prior to April 4, 2002, for the award of a total disability rating based
on individual unemployability.
Accordingly, this is the only issue presently before the Court on appeal.
See U.S.C. § 7252(a);
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that the
jurisdiction of this Court "is
premised on and defined bythe Board's decision concerning the
matterbeingappealed"). Therefore,
to the extent that any of Mr. Strother's arguments address entitlement to
an earlier effective date for
Crohn's disease, the Court lacks jurisdiction to address them. Id. However,
Mr. Strother is free to
submit those arguments to his local regional office in the form of a
motion for revision of a final
decision based on clear and unmistakable error. See Leonard v. Nicholson,
405 F.3d 1333, 1337
(Fed.Cir. 2005) ("[A]bsent a showingof [clear and unmistakable error, the
appellant]cannotreceive
disability payments for a time frame earlier than the application date of
his claim to reopen, even
with new evidence supporting an earlier disability date.").
B. Merits Adjudication
Mr. Strother argues that the Board committed error when it determined that
his untimely
December 1995 Notice of Disagreement did not constitute an informal claim
for an increased
disability rating, including entitlement to a total disability rating
based on individual
unemployability, which would entitle him to an earlier effective date for
the award of a total
disability rating based on individual unemployability.
Specifically, he contends that this
determination was based on a "debunked legal fiction that [a total
disability rating based on
individual unemployability] is a distinct and separate claim from a claim
for increased
compensation." Appellant's Brief (Br.) at 9. Mr. Strother also asserts
that the Board's finding that,
between December 1994 and April 2002, there was no evidence that his
Crohn's disease increased
in severityor renderedhim unemployableis clearlyerroneousbecauseit is "
factuallyinaccurate" and
because "the Board fail[ed] to appreciate that [he] is entitled to VA's
assistance to the retrospective
development of his increased rating claim." Id. at 11-12. In the
alternative, Mr. Strother argues that
the Board's decision is not supported by an adequate statement of reasons
or bases. The Secretary
disputes these contentions and additionally argues that "any increased
rating claim initiated by [Mr.
Strother]'s untimely December 1995 [Notice of Disagreement] was
adjudicated, either explicitly or
5


impliedly, by the [regional office]'s January 1996 response, or . . . was
abandoned because [he] did
not respond." Secretary's Br. at 14.
With respect to his first argument, Mr. Strother is correct that there is
no such thing as a
freestanding claim for a total disability rating based on individual
unemployability. As the Court
explained in Rice v. Shinseki, "a request for [a total disability rating
based on individual
unemployability] . . . is not a separate claim for benefits, but rather
involves an attempt to obtain an
appropriate rating for a disability or disabilities, either as part of the
initial adjudication of a claim
or . . . as part of a claim for increased compensation." 22 Vet.App. 447,
453-54 (2009). Therefore,
for the purposeof determining whetherMr. Strother is entitled to an
earlier effective date for his total
disability rating based on individual unemployability, the Court will
assume without deciding that
the untimely Notice of Disagreement that he filed in December 1995 was an
informal claim for an
increased disability rating for Crohn's disease, an issue not on appeal at
this time.3
Even assuming that the untimely Notice of Disagreement constituted an
informal claim for
an increased disability rating for Crohn's disease, the informal claim
would not necessarily raise the
issue of entitlement to a total disability rating based on individual
unemployability. As the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) explained in
Roberson v. Principi, VA
must only consider entitlement to a total disability rating based on
individual unemployability
"[o]nce a veteran submits evidence of a medical disability and makes a
claim for the highest rating
possible, and additionally submits evidence of unemployability." 251 F.3d
1378, 1384 (Fed. Cir.
2001) (emphasis added). Contrary to Mr. Strother's contentions, the
requirement that a veteran
submit evidence of unemployability to raise the issue of entitlement to a
total disability rating based
onindividual unemployabilityhassubsequentlybeenconfirmedbythe Federal
Circuit. See Jackson
Consistent with the discussion in Part II.A, above, the Board made no
explicit finding as to whether the
untimely Notice of Disagreement filed by Mr. Strother in December 1995
constituted an informal claim for an increased
disability rating for Crohn's disease. The Court notes that the untimely
Notice of Disagreement appears, on its face, to
satisfy the requirements for an informal claim for an increased disability
rating for Crohn's disease because Mr. Strother
had an intent to apply for an increased disability rating that he
explicitly identified in a communication to VA in writing.
See R. at 398; see also Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (
explaining that the essential requirements for
a claim, whether formal or informal, are (1) an intent to apply for
benefits, (2) an identification of the benefit sought, and
(3) a communication in writing); 38 C.F.R. § 3.155(c) ("When a claim has
been filed which meets the requirements of
[a claim for disability compensation or death benefits], an informal
request for increase or reopening will be accepted
as a claim.").
3
6


v. Shinseki, 587 F.3d 1106, 1109 (Fed. Cir. 2009) ("To [implicitly] raise [
the issue of entitlement to
a total disability rating based on individual unemployability], a veteran
must make a claim for the
highest rating possible, submit evidence of medical disability, and submit
evidence of
unemployability."); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (
stating that the issue of
entitlement to a total disability rating based on individual
unemployability "is implicitly raised
whenever a pro se veteran, who presents cogent evidence of unemployability,
seeks to obtain a
higher disability rating"). Although Mr. Strother attempts to distinguish
his appeal from Jackson on
the basis that the Federal Circuit made the statement above in the context
of a dispute over attorney's
fees, this is a distinction without a difference in the instant case.
Accordingly, to raise the issue of
entitlement to a total disability rating based on individual
unemployability, a veteran must (1) make
a claim for the highest disability rating possible, (2) submit evidence of
medical disability, and
(3) submit evidence of unemployability. Jackson, 587 F.3d at 1109; Comer,
552 F.3d at 1367;
Roberson, 251 F.3d at 1384.
The parties do not dispute that the first two elements are satisfied
because (1) a claimant is
presumed to be seeking the highest disability rating possible when the
claimant files a claim for an
increased disability rating, AB v. Brown, 6 Vet.App. 35, 38 (1993), and (2)
there was evidence of
record at that time that Mr. Strother had a current diagnosis of Crohn's
disease. Therefore, the
determination of whetherMr. Strother raised the issue of entitlement to a
total disabilityratingbased
onindividual
unemployabilitybyfilinganuntimelyNoticeofDisagreementinDecember1995turns
on whether he submitted evidence of unemployability.
To this end, the Court notes that Mr. Strother did not submit any evidence
along with his
untimelyNotice of Disagreement. In addition, anyevidence of
unemployability in the record before
the September 1994 regional office decision was considered and evaluated
by the regional office in
September 1994 and found insufficient to support the award of a total
disability rating based on
individual unemployability. The only evidence of record between the
September 1994 regional
office decision and the December 1995 untimely Notice of Disagreement is
an April 1995 statement
from Mr. Strother that he was "re[]applying for vocational rehabilitation"
because he was "now well
enough to resume [his] training" and that he had "medical proof that [he
was] medically capable to
resume [] vocational rehabilitation" (R. at 402); a letter from a VA
physician stating that Mr.
7


Strother was "approved to restart employment without restriction" (R. at
403); and a pay stub
indicating that he had been employed part-time since January 1995 (R. at
404). Mr. Strother
inexplicablycites these documents as evidence that he was unemployable in
December 1995 despite
the fact that they seem to indicate the contrary. In any event, the Board
reviewed these documents
and determined that they did not demonstrate that Mr. Strother was
unemployable at the time he
submitted his untimely Notice of Disagreement in December 1995, a finding
that the Court
concludes is not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Owens v.
Brown, 7 Vet.App. 429,
433 (1995) (explaining that the Board's findings of fact are subject to
the "clearly erroneous"
standard of review). To the extent that Mr. Strother argues that a July
2001 hospitalization report
and other treatment records from July 2001 demonstrate that he was
unemployable at the time he
filed the untimely Notice of Disagreement, this evidence postdates that
filing by nearly six years.
Therefore, it cannot be the evidence of unemployability necessary to raise
the issue of entitlement
to a total disability rating based on individual unemployability in
December 1995.
Moreover, to the extent that Mr. Strother argues that the submission of
medical records from
July 2001 raised the issue of entitlement to a total disability rating
based on individual
unemployability in July2001, the Board reviewed these documents and
determined that theydid not
demonstrate unemployability. Mr. Strother does not present any argument as
to why this finding is
clearly erroneous and, therefore, the Court concludes that he has failed
to carry his burden of
demonstrating error in that regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
Based on the foregoing, the Court concludes that the Board's determination
that "no
communication prior to April 2002 or July 2002," including the untimely
December 1995 Notice of
Disagreement, raised the issue of entitlement to a total disability rating
based on individual
unemployability was not clearly erroneous.4
R. at 13.
Both parties argue that the Court should review the Board's determination
of whether an informal claim has
been filed under the "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" standard of
review. 38 U.S.C. § 7261(a)(3)(A); Appellant's Br. at 8 (citing Westberry
v. West, 12 Vet.App. 510, 513 (1999));
Secretary's Br. at 5 (citing Criswell v. Nicholson, 20 Vet.App. 501, 504 (
2006)). The Court acknowledges that the cases
cited by the parties invoke this standard of review; however, the Court
has held that "[t]he determination of whether an
informal claim has been filed is a substantially factual determination
that the Court reviews under the 'clearly erroneous'
standard of review." Brokowski, 23 Vet.App. at 85. This holding is
consistent with precedential decisions issued by the
U.S. Court of Appeals for the Federal Circuit and previous holdings of
this Court. See Comer, 552 F.3d at 1372
("Whether a veteran has raised a particular claim is a factual
determination."); Moody v. Principi, 360 F.3d 1306, 1310
4
8


With respect to Mr. Strother's argument that a retrospective medical
examination is required
in this caseto
determinewhetherhebecameunemployablebetweenSeptember1994andApril2002,
the Court notes that Mr. Strother abandoned this argument in his reply
brief. See Appellant's Reply
Br. at 2 n.1 (conceding that the issue of whether Mr. Strother is entitled
to a retroactive medical
examination "is technically, not ripe; it would only be ripe upon remand,
where the Board would
need to address this issue in the first instance"). Moreover, in Chotta v.
Peake, the Court explained
thatentitlementto aretroactivemedicalexamination "isnot automatic,"but
rather"appliesonlyonce
the evidence has met the minimal threshold of indicating the existence of
a medical question."
22 Vet.App. 80, 85 (2008); see also Gobber v. Derwinski, 2 Vet.App. 470,
472 (1992) ("In short, the
'duty to assist' is not a license for a 'fishing expedition' to determine
if there might be some
unspecified information which could possibly support a claim."). In this
case, the Board reviewed
the evidence of record between September 1994 and April 2002, including
the evidence cited byMr.
Strother in his brief, and determined that it was insufficient to
demonstrate unemployability.
Because this determination is not clearly erroneous, the Court concludes
that Mr. Strother has not
carried his burden of demonstrating that he was entitled to a retroactive
medical examination for his
total disability rating based on individual unemployability. See Hilkert,
12 Vet.App. at 151.
Finally, Mr. Strother argues in the alternative that the Board's statement
of reasons or bases
for its decision is inadequate. The Court disagrees. Here, the Board
recited the relevant law and
regulations applicable to the issue on appeal, reviewed the evidence of
record between September
1994 and April 2002, and concluded that this evidence, even when viewed in
the light most
favorable to Mr. Strother, did not raise the issue of entitlement to a
total disability rating based on
individual unemployability prior to April 2002. Because the Board analyzed
the credibility and
probative value of the evidence, accounted for the evidence that it found
to be persuasive or
unpersuasive, and provided the reasons for its rejection of any material
evidence favorable to Mr.
Strother, the Court concludes that the Board provided an adequate
statement of reasons or bases for
(Fed. Cir. 2004) (explaining that the interpretation of filings to
determine if an informal claim has been filed is
"essentially a factual inquiry"); Ellington v. Nicholson, 22 Vet.App. 141,
144 (2007); Beverly v. Nicholson, 19 Vet.App.
394, 405 (2005).
9


its decision. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table); see also 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990).
C. The Secretary's Implicit Denial and Abandonment Arguments
Although the Court is affirming the Board decision, the Court feels
compelled to briefly
address the Secretary's implicit denial and abandonment arguments.
Specifically, the Secretary
arguesthat"anyincreased ratingclaim initiated by[Mr. Strother]
'suntimelyDecember1995[Notice
of Disagreement] was adjudicated, either explicitly or impliedly, by the [
regional office]'s January
1996 response, or that it was abandoned because [he] did not respond to
the January 1996 . . .
response." Secretary's Br. at 14.
With respect to the Secretary's abandonment argument, the Court notes that
the January1996
letter from VA erroneously instructed Mr. Strother to provide new and
material evidence to reopen
his claim for benefits for Crohn's disease before VA would "take any
action on [his] appeal." R. at
396. However, there is no requirement that a claimant produce new and
material evidence to make
a claim for an increased disability rating and, therefore, Mr. Strother's
failure to produce such
evidence cannot be deemed to be an abandonment of any informal claim for
an increased disability
rating that might have arisen from his untimely filing of the Notice of
Disagreement.
Next, with respect to the Secretary's implicit denial argument, a letter
from VA informing
Mr. Strother that his Notice of Disagreement was untimely is not an
adjudication and, therefore,
cannot operate as an implicit denial. See Adams v. Shinseki, 568 F.3d 956,
960 (Fed. Cir. 2009)
(explaining that a claim for VA benefits, whether formal or informal,
remains pending until it is
finally adjudicated); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[
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."). Moreover,
as noted above, VA
mischaracterized Mr. Strother's untimely Notice of Disagreement as a
request to reopen, instead of
as a claim for an increased disability rating, and, therefore, he was not
put on notice that the January
1996 letter was a denial of his claim for an increased disability rating.
Adams, 568 F.3d at 965 ("[T]he implicit denial rule is, at bottom, a notice provision."); Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip. op. at 6, 2011 WL 474693 at *4 (Feb. 11, 2011) (
stating that a claim is
10


implicitly denied "when a reasonable person would understand from a
decision that his request for benefits not explicitly addressed in the decision nevertheless implicitly was adjudicated and denied by that decision"). Accordingly, the Court concludes that the Secretary's implicit denial and abandonment arguments are without merit.

III. CONCLUSION
Upon consideration of the foregoing, the April 17, 2009, Board decision is
AFFIRMED.
DATED: April 18, 2011
Copies to:
Sean A. Ravin, 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