REIMBURSEMENT OF EMERGENCY MEDICAL COSTS

Staab v. McDonald, docket no. 14-0957 (Apr. 8, 2016)

HELD: VA is required to reimburse the costs for emergency medical treatment “when coverage by a third party [including Medicare] is less than total.”

In other words, partial Medicare reimbursement does not bar VA reimbursement for the uncovered medical expenses. VA’s regulation stating that VA will only reimburse when a “veteran has no coverage under a [third-party] health-plan contract” is invalid because it is inconsistent with the 2009 amendment to 38 U.S.C. § 1725. 

FULL DECISION

STANDARD FORMS

Veterans Justice Group, LLC v. Sec’y of Veterans Affairs, 818 F.3d 1336 (Fed. Cir. Apr. 7, 2016)

HELD: VA’s final rule requiring standard claims and appeals forms is valid. 

FULL DECISION

ENTITLEMENT TO EAJA FEES

Dover v. McDonald, 818 F.3d 1316 (Fed. Cir. Apr. 7, 2016)

HELD: Where a remanding court does not retain jurisdiction over a case and the remand order contemplates and/or precipitates additional agency proceedings on the merits – even if the order just leaves open “the possibility of attaining a favorable merits determination through further agency proceedings” – the appellant is a “prevailing party” for purposes of being entitled to EAJA fees.

FULL DECISION

McKinney: HEARING LOSS, PRESUMPTION OF SOUNDNESS

McKinney v. McDonald, 28 Vet.App. 15 (Mar. 11, 2016)

HELD: If the degree of hearing loss noted on a veteran’s enlistment medical examination does not meet VA’s definition of “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness.

The Court also rejected the Secretary’s argument that hearing loss that is not considered a “disability” for VA compensation purposes under § 3.385 should be considered a “defect” and, therefore, ineligible for disability compensation

FULL DECISION

Dixon: CAVC CANNOT DISMISS UNTIMELY APPEAL WHEN SECRETARY WAIVES TIMELINESS DEFENSE

Dixon v. McDonald, 815 F.3d 799 (Fed. Circ. 2016)

HELD: The CAVC does not have the sua sponte authority to dismiss an untimely appeal when the Secretary has waived a timeliness defense. 

The veteran filed his Notice of Appeal to the CAVC late – sixty days beyond the 120-day filing deadline. The Court dismissed the appeal, based on lack of jurisdiction. After the Court’s dismissal, the U.S. Supreme Court issued Henderson v. Shinseki, 562 U.S. 428, 431 (2011), holding that the 120-day deadline was a procedural rule that was subject to equitable tolling. Following Henderson, the CAVC informed Mr. Dixon that he could ask the court to recall mandate based on an equitable tolling argument. He filed this motion, which the CAVC then denied. He appealed to the Federal Circuit, but passed away while the appeal was pending. The Federal Circuit reversed the CAVC’s decision, finding that the denial had prevented the veteran’s new pro bono counsel access to evidence he would need to prove the claim.

On remand back at the CAVC, Mr. Dixon’s wife substituted in the appeal. She submitted evidence and argument in support of the equitable tolling argument to excuse her husband’s late filing. The Secretary responded by waiving his objection to the late filing, stating that “it appears the criteria [for equitable tolling] has been satisfied” and that “the Secretary is unopposed to the application of equitable tolling.” Despite this waiver, the CAVC nevertheless rejected Mrs. Dixon’s equitable tolling arguments and again dismissed the appeal – essentially “granting the Secretary relief he had explicitly declined to seek on a defense he had waived.”

Mrs. Dixon appealed to the Federal Circuit again. The Federal Circuit discussed Henderson, stating that the Supreme Court “found Congress’s purpose in creating the Veterans Court – to ‘place a thumb on the scale in favor of veterans’ – to imply that Congress could not have intended this time bar to subject veterans to the ‘harsh consequences that accompany the jurisdiction tag.’” The Federal Circuit noted that after Henderson, the CAVC issued Bove v. Shinseki, 25 Vet.App. 136 (2011), in which it discussed how to implement the Supreme Court’s decision. In Bove, the CAVC had held that because the 120-day deadline was “non-jurisdictional, equitable tolling may excuse a veteran’s failure to comply with it.” The CAVC also considered whether it had two types of sua sponte authority – first, the authority to raise the time bar at the start of proceedings and second, the authority to resolve the issue even if it is waived by the Secretary. The CAVC “recognized that, as a general rule, courts lack the authority to raise or resolve non-jurisdictional timeliness defenses sua sponte.” However, the CAVC noted that there was an exception to this rule for habeas cases – and that policy concerns, specifically “the court’s own interest in managing its docket,” allowed it to benefit from an exception to the general rule.

The Federal Circuit had previously determined that the CAVC did have the authority to raise the timeliness issue early on in proceedings. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). In this present case, however, the Federal Circuit determined that the CAVC did not have the sua sponte “authority to resolve timeliness in the face of the Secretary’s waiver by granting him relief that he explicitly declined to seek.” In deeming itself an “exception” to the general rule, the Federal Circuit found that the CAVC failed to account for statutory limits to its jurisdiction, misread the precedent that created the exception to the general rule, and misapprehended the relevant policy considerations. The Court stated: “We are aware of no other court that has the sua sponte authority to resolve a deliberately waived non-jurisdictional timeliness defense.”

The Secretary added an argument to support the CAVC’s authority to resolve the timeliness issue – by pointing to the Court’s “broad discretion to prescribe, interpret, and apply its own rules.” The Federal Circuit rejected this argument, stating that the rules do not suggest that the CAVC “has a special power to enforce their time bar” and that “the rules merely rephrase the statutory time bar in nearly identical language.” The Federal Circuit thus reversed the CAVC’s “determination that it had the authority to dismiss this appeal as time-barred” in the face of the Secretary’s waiver of the timeliness defense. 

FULL DECISION

Sullivan: DUTY TO OBTAIN VA MEDICAL RECORDS

Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. Mar. 8, 2016)

HELD: VA's duty to assist includes the duty to obtain VA medical records - regardless of the relevancy of those records.

SUMMARY: 38 C.F.R. § 3.159(c)(3) identifies four categories of records that VA will help a claimant obtain in connection with a compensation claim: (1) service medical records, if relevant to the claim; (2) other relevant service records that are held by a government entity; (3) VA medical records; and (4) any other relevant records held by any federal agency. (emphasis added). 

Based on the plain language of the regulation, the Federal Circuit found that VA clearly knew how to impose a relevancy standard on three of the four categories of records – and that it did not impose that same requirement on VA medical records. The Federal Circuit found that the CAVC erred in its interpretation of 38 C.F.R. § 3.159(c)(3) when it concluded that VA’s duty to assist extended only to “potentially relevant” VA records, including VA medical records.

Thompson: RATING FUNCTIONAL LOSS DUE TO PAIN ON MOTION

Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. Mar. 8, 2016)

HELD: Section 4.40 does not provide for a rating separate from 38 C.F.R. § 4.71a.

SUMMARY: Section 4.40 “speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss,” but does not explicitly provide a rating for any disability. Instead, “§ 4.40 must be viewed in light of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a.” The guidance provided in § 4.40 “is intended to be used in understanding the nature of a veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”

In this case, the veteran was rated 20% for his back condition and appealed for a higher rating. The Board determined that he was not entitled to a higher rating because his pain did not limit his flexion to 30 degrees or less, which is what is required for the higher rating. The Veterans Court agreed, noting that the Board had conceded that Mr. Thompson had additional functional loss due to pain – but that functional loss still did not restrict his motion to 30 degrees or less, such as to warrant a higher rating. 

The Federal Circuit affirmed the CAVC’s decision, stating that 38 C.F.R. § 4.40 “makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.” Nevertheless, the Court maintained that “an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”

FULL DECISION

Hime: CLEAR & UNMISTAKABLE ERROR (CUE)

Hime v. McDonald, 28 Vet.App. 1 (Mar. 3, 2016)

HELD: A 1983 Board decision was not CLEAR AND UNMISTAKABLE ERROR because the Board (1) was allowed to exercise its own medical judgment at that time and (2) was not required to provide a statement of reasons or bases for its determinations.

SUMMARY: The veteran in this case challenged a November 1983 Board decision on the basis of clear and unmistakable error (CUE). However, the Court found that at the time of the November 1983 decision, the Board did not have a reason-or-bases requirement and Board decisions were decided by three-member panels that included one medical professional. The use of the medical opinion provided by the medical member of the panel was common practice. While the Court agreed with the appellant that the 1983 Board decision was not “evidence,” the Court determined that the Board decision was not CUE because of the law in existence at that time. 

FULL DECISION

SWAN: PETITION FOR RULEMAKING RE: PTSD/MST DENIED

Service Women’s Action Network, VVA v. Sec’y of Veterans Affairs, 815 F.3d 1369 (Fed. Cir. Mar. 3, 2016)

HELD: VA's refusal to promulgate a rule that would ease a veteran's burden in establishing the occurrence of a PTSD/MST stressor event was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

SUMMARY: 38 C.F.R. § 3.304(f)(3) allows a veteran to establish with lay testimony the occurrence of a PTSD stressor event based on "fear of hostile military and terrorist activity." Under 38 C.F.R. § 3.304(f)(5), however, if the veteran's PTSD is based on military sexual trauma (MST), that veteran's lay testimony will not suffice to establish the occurrence of the traumatic event. 

Petitioners requested VA to promulgate a new subsection of § 3.304 to allow a veteran to establish the occurrence of a PTSD/MST stressor event through his/her lay testimony alone as long as a psychiatrist or psychologist confirms that the stressor is adequate to support the diagnosis. VA denied the request. 

The Federal Circuit determined that VA’s refusal to promulgate a new rule was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and was supported by “reasoned decisionmaking.” 

FULL DECISION

Johnson: "SYSTEMIC THERAPY" INCLUDES TOPICAL CORTICOSTEROIDS

Johnson v. McDonald, 27 Vet.App. 497 (Mar. 1, 2016), overruled, Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017)

HELD: “[T]he plain wording of Diagnostic Code 7806 is that systemic therapy includes the use of corticosteroids without any limitation to such use being oral or parenteral as opposed to topical.”

SUMMARY: 38 C.F.R. § 4.118, DC 7806, VA’s diagnostic code for rating dermatitis or eczema, provides for compensable ratings based on the use of “systemic therapy such as corticosteroids.” The regulation does not distinguish between topical and oral corticosteroids. Therefore, the Court held that the plain language of DC 7806 includes both oral and topical corticosteroids. 

FULL DECISION

Bozeman: ISSUE EXHAUSTION CANNOT BAR CITATION TO EVIDENCE THAT SUPPORTS LEGAL ARGUMENT

Bozeman v. McDonald, 814 F.3d 1354 (Fed. Cir. Mar. 1, 2016)

HELD: “[I]ssue exhaustion cannot be invoked to bar citation of record evidence in support of a legal argument that has been properly preserved for appeal."

SUMMARY: On appeal to the Veterans Court, the claimant argued that the Board failed to address relevant evidence. The Court refused to address this argument on the grounds of "issue exhaustion." The Federal Circuit found that citation to new evidence in the record is not “a new legal argument for purposes of issue exhaustion,” and held that the CAVC’s refusal to address the claimant’s argument was an improper expansion of the legal definition of issue exhaustion. 

FULL DECISION

Dickens: ISSUE EXHAUSTION, DUTY TO ASSIST

Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. Mar. 1, 2016)

HELD: The CAVC’s decision to not consider an appellant’s duty-to-assist argument that had not been raised to the Board was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” and was supported by the principles of issue exhaustion. 

SUMMARY: The appellant in this case raised a duty-to-assist argument for the first time to the Veterans Court, even though she had the opportunity to raise that argument in earlier proceedings - including in a 2012 joint motion for partial remand. The Federal Circuit affirmed the Veterans Court's invocation of issue exhaustion in its decision to not hear the argument. 

FULL DECISION

Yancy: EXTRASCHEDULAR; COMBINED EFFECT OF MULTIPLE DISABILITIES

Yancy v. McDonald, 27 Vet.App. 484 (Feb. 26, 2016)

HELD: “[T]he Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.”

SUMMARY: Mr. Yancy was service connected for bilateral foot conditions, including pes planus, rated 10%, and hallux valgus of the left and right great toes, rated 0%. He appealed and the Board ultimately awarded a 30% rating for his bilateral pes planus under DC 5276. The Board also denied a compensable rating for his hallux valgus, finding that he did not meet the criteria for a compensable rating under DCs 5277 through 5284, and found that referral for extraschedular consideration was not warranted.

On appeal, Mr. Yancy argued that the Board failed to adequately explain why he was not entitled to higher or additional disability ratings under DC 5281 (for hallux rigidus) or DC 5284 (for “foot injuries, other”), and failed to properly assess whether referral for extraschedular consideration was warranted.

The Court agreed. DC 5281, for “hallux rigidus, unilateral, severe,” requires the condition to be rated as “severe hallux valgus under DC 5280.” The Board determined that Mr. Yancy was not entitled to a rating under DC 5281 because “it found that he had not been diagnosed with hallux rigidus.” However, the record contained a diagnosis of “hallux valgus et rigidus on both sides” that the Board failed to address. Because of this, the Court found the Board’s reasons or bases inadequate and remanded for the Board to discuss whether this evidence contains a diagnosis of hallux rigidus and, if so, whether it is severe enough to warrant a compensable rating.

The Court similarly found that the Board failed to adequately explain its denial of an evaluation under DC 5284, the DC for “foot injuries, other.” The Court noted that it had recently considered the word “other” in that DC in Copeland v. McDonald, 27 Vet.App. 333, 337-38 (2015). In this case, the Court turned its attention to the word “injury,” and held that “the plain meaning of the word ‘injury’ limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions.” The Court found that Mr. Yancy “has been diagnosed with conditions not explicitly listed in the rating schedule,” and that the Board failed to discuss whether those “unlisted conditions could be rated by analogy pursuant to DC 5284.” The Court thus remanded for the Board to address this question.

Finally, the Court found that the Board failed to adequately explain its extraschedular determination in light of the Federal Circuit’s holding in Johnson v. McDonald, 462 F.3d 1362 (Fed. Cir. 2014), which states that “§ 3.321(b)(1) provides for extra-schedular consideration based on the collective impact of multiple disabilities.” The Court first discussed the three-part extraschedular analysis required by Thun v. Peake, 22 Vet.App. 111, 115 (2008), which requires adjudicators to refer a case for extraschedular consideration if (1) the evaluation in the rating schedule does not contemplate the severity of the claimant’s disability level or his/her symptoms and (2) the claimant’s overall disability picture involves other factors such as “marked interference with employment” or “frequent hospitalizations.”

The Court stated that the “first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” The Court added that an error on one element does not necessarily affect the analysis of the other element, and that if “either element is not met, then referral for extraschedular consideration is not appropriate.”

The Court held that “the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.” In this case, Mr. Yancy acknowledged that he did not expressly raise the issue of extraschedular consideration to the Board. However, the Court found that the issue was reasonably raised by the record and that “the Board erred by failing to discuss the combined effects of Mr. Yancy’s disabilities in its analysis.”

FULL DECISION

Sowers: MINIMUM COMPENSABLE RATING FOR PAINFUL JOINT

Sowers v. McDonald, 27 Vet.App. 472 (Feb. 12, 2016)

HELD: 38 C.F.R. § 4.59, which provides for a minimum compensable rating for a painful joint, is limited by the applicable diagnostic code and does not apply where that diagnostic code does not contain a compensable rating.

SUMMARY: Mr. Sowers was service connected for a right ring finger disability, and assigned a noncompensable disability rating under Diagnostic Code (DC) 5010-5230. He appealed this decision and the Board determined that (1) DC 5010 was not appropriate since there was no arthritis substantiated by x-rays; (2) the evidence did not establish ankylosis; (3) the appropriate DC, 5230, did not provide for a compensable rating – even for any limitation of motion; and (4) extraschedular consideration was not warranted.

On appeal to the Court, Mr. Sowers argued that he was entitled to a minimum compensable rating under 38 C.F.R. § 4.59, asserting that this regulation “is designed to add flexibility to the rating schedule.” He acknowledged that the assigned DC, 5230, does not provide a compensable rating, but argued that the DC for ankylosis of the finger, 5227, does provide for a compensable rating “where the disability equates to amputation.” He argued that VA should used that DC to “build up a rating” that would entitle him to a compensable rating under 38 C.F.R. § 4.59.

The Secretary argued that § 4.59 did not apply because DC 5230 only contains a 0% rating.

The Court acknowledged that the rating schedule contained “flexible” provisions, such as 38 C.F.R. § 3.321 (extraschedular evaluation), § 4.20 (analogous ratings), and § 4.27 (customizable DCs). However, the Court found that “these flexible provisions are limited by the rating schedule.” The Court also noted its recent holding in Petitti v. McDonald, 27 Vet.App. 415 (2015), which confirmed that § 4.59 “ensures that a veteran experiencing an ‘actually’ painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved.” The Court added that “Petitti emphasized that § 4.59 is not an independent provision that may be applied without an underlying DC: § 4.59 is read in conjunction with, and subject to, the DC.”

Because the assigned DC in question, DC 5230, only provides for a 0% rating for “any limitation of motion,” and “does not instruct that other DCs should be considered,” the Court found that § 4.59 would not allow for a compensable rating for a condition rated under this DC. The Court found that the specific language of DC 5230 “trumps the general intent in § 4.59 to compensate painful motion with at least the minimum compensable rating,” and held that “[b]ecause no impairment of motion warrants a compensable rating under DC 5230,” Mr. Sowers was not entitled to a compensable rating under this DC, even when DC 5230 is read in conjunction with § 4.59.

The Court rejected Mr. Sowers’ argument based on DC 5227, which provides a compensable rating based on ankylosis that approximates amputation, stating that “a claimant may not shop around among DCs to find a better deal.” The Court noted that such a proposal would lead to “absurd results” by creating a “de facto 10% disability rating for painful motion.” The Court thus held that “[s]ection 4.59 may intent to compensate painful motion, but it does not guarantee a compensable rating,” Instead, this regulation “employs conditional language that must be read in conjunction with the appropriate DC to be understood.”

The Court remanded the issue of extraschedular consideration to allow the Board to consider the “‘collective impact of all [his] disabilities’” (citing Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014)), which Mr. Sowers raised for the first time during his appeal to the Court.

FULL DECISION

Gazelle: SPECIAL MONTHLY COMPENSATION; COMBINED RATINGS

Gazelle v. McDonald, 27 Vet.App, 461 (February 2, 2016)

HELD: 38 U.S.C. § 1114(s) provides special monthly compensation (SMC) for veterans with one disability rated 100% and a separate disability or disabilities independently ratable at 60% or more. Where there are multiple additional disabilities, it is appropriate to use the combined ratings table, 38 C.F.R. § 4.25, to determine whether those disabilities are “ratable at 60% or more.” It is not appropriate to simply add the ratings together. 

SUMMARY: Mr. Gazelle was service connected for PTSD, rated 100% disabling. He also was service connected for conditions of the neck (20%), back (20%), left upper extremity radiculopathy (10%), and left lower extremity radiculopathy (10%). Under the combined rating table, his additional disabilities amounted to a 50% rating, and the RO thus denied SMC under 38 U.S.C. § 1114(s).

He appealed to the Court, arguing that his additional disability ratings should be added together and not combined. He argued that his position was supported by the plain language of the statute, by VA’s implementing regulation, and by the pro-veteran nature of the VA benefits scheme.

The Court disagreed. The Court first examined how section 1114(s) fit into the statutory scheme that included sections 1155 (authorizing the Secretary to create a rating schedule) and 1157 (allowing for the “combination” of ratings). Section 1114(s) requires (1) a single disability rated 100% disabling (i.e., NOT multiple disabilities that combine to a 100% rating) and (2) “additional service-connected disability or disabilities independently ratable at 60 percent or more.”

Mr. Gazelle argued that there was a distinction in the awards provided for in sections 1114(a) through (j) and (k) through (t) – specifically, that (k) through (t) require the veteran to have a disability rated as total. Because of this distinction, he argued that the combined ratings table only applies when a veteran does not have a disability already rated as total, and thus did not apply to subsections (k) through (t). The Court disagreed, finding that there was nothing in section 1114 that precluded the use of the combined ratings table to some subsections, but not others.

The Court rejected Mr. Gazelle’s argument that the word “independently” in the statute suggested that each additional disability are not only independent of the one condition already rated 100%, but also independent of each other. The Court found that this rationale would result in the additional disabilities not being “pooled” at all – and that this interpretation would result in VA requiring a single additional disability rated 60%. The Court found that this was not supported by the statute, which requires one condition rated 100% (or one condition rated total based on unemployability) and additional disability or disabilities rated 60% or more.

The Court added that the word “ratable” and “rated” are not interchangeable. The first criterion of section 1114(s) requires a disability “rated” 100% disabling; whereas the second criterion requires a disability or disabilities “ratable” at 60% or more. The Court stated that “the combined ratings table is the only method VA employs to rate multiple disabilities together . . . , and it was also the method employed when subsection 1114(s) was enacted.” The Court thus held that “[s]ubsection 1114(s)(1) allows for the possibility of multiple disability ratings being rated together at 60% or more. The only way multiple disabilities are ratable – or capable of being rated – in the VA system requires combining them using § 4.25.” 

FULL DECISION

Cogburn: 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