IMPLICIT DENIAL RULE

Cogburn v. McDonald, 809 F.3d 1232 (Fed. Cir. January 7, 2016)

HELD: The implicit denial rule applies to both formal and informal claims and does not violate the notice provision of VA’s due process regulation.

SUMMARY: In 1974, Mr. Cogburn filed a claim for disability compensation and pension benefits for a nervous condition. In 1975, the VA Regional Office (RO) denied his pension claim, but did not address the claim for disability benefits. He did not appeal and the decision became final.

In 1983, Mr. Cogburn again filed a claim for disability and pension benefits for a nervous condition. In 1984, the RO granted non-service connected pension, but denied disability compensation benefits for PTSD. Mr. Cogburn appealed and the Board affirmed the RO’s decision in 1985.

In 2002, Mr. Cogburn inquired about the status of his 1974 claim for disability benefits, stating that it had never been adjudicated. The RO determined that the claim had been adjudicated and implicitly denied in the 1985 Board decision. In 2012, after a remand from the Veterans Court, the Board reconsidered the issue and again affirmed the RO’s determination, finding that the 1985 Board decision provided sufficient notice that would allow a reasonable person to infer that the claims had been denied. The CAVC affirmed.

On appeal to the Federal Circuit, Mr. Cogburn argued that the implicit denial rule cannot apply where “the pending claim is filed separately from the explicitly denied claim and is based on a distinct medical diagnosis.” He also argued that the implicit denial rule cannot apply to formal claims. The Federal Circuit disagreed.

Relying on Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009), the Court held that “the implicit denial rule may apply to pending claims, filed separately from the explicitly denied claim and based on a distinct medical diagnosis, when the Board’s decision makes it clear to a reasonable person that the pending claims have been denied.” The Court further held that “the implicit denial rule applies to both formal and informal claims,” relying on its prior holding in Munro v. Shinseki, 616 F.3d 1293, 1297 (Fed. Cir. 2010). The Court also based this holding on the regulation in effect at the time, 38 C.F.R. § 3.160(c), which defined a pending claim as “an application, formal or informal, which has not been finally adjudicated.”

Finally, the Court held that the implicit denial rule did not violate the notice requirement in VA’s due process regulation, 38 C.F.R. § 3.103(e). The Court again relied on Adams, to find that “the implicit denial rule is, at bottom, a notice provision,” and that application of the rule necessarily means that the claimant “received adequate notice of, and an opportunity to respond to, the [VA’s] decision . . . [and therefore] was not deprived of any due process rights.”

The Court found that “VA’s due process regulation mirrors constitutional due process by requiring notice that a claim has been denied.” The Court thus held that “[b]ecause the implicit denial rule is a notice provision, the 1985 decision necessarily provided Mr. Cogburn with adequate notice that his claim for a severe nervous condition, and all informal claims related to his diagnoses of depressive neurosis and schizophrenia, had been denied.” 

FULL DECISION