Veteranclaims’s Blog

January 20, 2011

Application of Cogburn v. Shinseki, Single Judge, Implicit Denial

Filed under: Cogburn v. Shinseki, Implicit Denial — Tags: — veteranclaims @ 5:41 pm

Excerpt from Single Judge Decision, below:

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

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

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

MEMORANDUM DECISION

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

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

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

I. FACTS
A. Right Ear Hearing Loss and Tinnitus
In April1995, Mr. Mask filed a claim for serviceconnection for, among other thing,”hearing loss in left ear – 1961.” Record (R.) at 1599. Subsequent development of the claim showed hearing loss in both ears and tinnitus: A May 1995 VA examination determined that, based on audiological
testing, Mr. Mask had “a mild to severe, high frequency, sensorineural hearing loss for the right ear and a moderate to severe, high frequency, sensorineural hearing loss for the left ear.” R. at 1567-68.
Notably, the pure-tone thresholds for the 2,000 and higher frequencies for both the right and left ears exceeded 26 decibels, and the speech recognition score for the right ear
was 80% and for the left ear
was 76%. R. at 1567. The report contained a history that included Mr. Mask’s account of noticing “decreased hearing since 1963 when the ship he was on rolled and he was
tossed into his anti-aircraft weapon.” He stated that he “was exposed to the excessive noise of anti- aircraft weapons for three years while in the Navy and weapons on aircraft for two years while in the Army.” R. at 1567. The report also noted Mr. Mask’s account of having tinnitus since 1962 or 1963
that Mr. Mask “attributes to the excessive noise exposure of anti-aircraft guns as a gunner’s mate for three years while in the military.” R. at 1567. Mr. Mask described “the tinnitus as a unilateral, constant, high pitched, ringing sound in his left ear.” Id.
A September 1996 VA regional office (RO) decision noted the results of the May 1995 VA report as to both ears and denied service connection “for hearing loss, left ear” because the service medical records showed no complaints of, treatment for, or diagnosis of hearing loss in Mr. Mask’s left ear. R. at 1532. Mr. Mask filed a timely Notice of Disagreement as to the claims denied by the RO, and submitted a letter opinion dated August 21, 1996, from his private doctor. R. at 1511, 1526. The doctor conducted an audiological examination and stated:
2

Mr. Mask is in with complaints of hearing deficit of long standing.
Audiological assessment is performed after examining and cleansing the ears. It reveals a sensorineural hearing loss compatible with prior noise exposure. Patient has been in
the military around loud noises and gunfire in the past. I feel that his
hearing deficit
is of the type that is frequently associated with prior noise exposure of
that type. I
have recommended that consideration be given for a hearing aid fitting for
his ears
accordingly.
R. at 1511. Mr. Mask gave sworn testimony before a hearing officer in
January 1997. He noted that
he first noticed having a problem with his ears when he fired guns out at
sea during service without
ear protection. R. at 1483-84. After firing the guns, he would have
ringing in his ears that lasted
hours or days. R. at 1484. He noted that most of his approximately three
years in the Navy was
spent at sea as a gunner’s mate. Id. After he left service, his “ears kept
ringing all the time” and the
condition would get worse. R. at 1485. He explained that the left ear
rings continuously and never
stops. Id.
In his Substantive Appeal to the Board dated April 1997, Mr. Mask
identified the issues on
appeal as including “service connection for bilateral hearing loss due to
noise trauma.” R. at 1475.
In an October 21, 1997, decision, the Board denied entitlement to
serviceconnection for hearing loss
disability of the left ear based on its finding that the claim was not
well grounded. R. at 391. The
Board determined that there was “no competent evidence of record
attributing a current left ear
hearing loss disability to the veteran’s active service or to an event or
injurytherein.” R. at 392, 401-
03.
In March 1998, after filing an appeal to this Court (Docket No. 98-0287),
Mr. Mask hired
Mr. Cameron on a contingency fee basis “to provide legal services in
connection with an appeal to
the U.S. Court of Veterans Appeals and in connection with all proceedings
for benefits before the
U.S. Department of Veterans Affairs.” R. at 570. Under the fee agreement,
Mr. Cameron would
receive a fee of 20% “of the total amount of any past-due benefits awarded
on the basis of the
Client’s claim with the U.S. Department of Veterans Affairs.” Id. VA would
pay Mr. Cameron
directly from the benefits recovered by Mr. Mask. Thereafter, the parties
filed a joint motion to
remand to the Board the matter of hearing loss, and the motion was granted
bythe Court. R. at 1429,
1430-33. The parties agreed that the “claim for his hearing loss was well
grounded” because he was
3

exposed to loud noises in service, and the private doctor had opined that
the “current hearing loss
was of the type usually caused by exposure to loud noises.” R. at 1431.
On remand in January 2002, the Board granted service connection for
hearing loss in the left
ear. R. at 1172-82. A September 2002 RO decision assigned a 0% rating,
effective from April 25,
1995. R. at 1136-38. In November 2002, Mr. Mask, through his attorney, Mr.
Cameron, filed an
NOD and specifically sought a higher initial rating for left ear hearing
loss and stated his
disagreement with the RO’s failure to find that his right ear hearing loss
was service connected. R. at
1110. A May 2004 RO decision granted service connection for bilateral
hearing loss and assigned
an 80% disability rating, effective from February 5, 2004, the date that
the RO determined that his
claim was received. R. at 331-32. The RO noted the private doctor’s report
from 1996. R. at 332.
The RO also granted service connection for tinnitus and assigned a 10%
rating, effective April 25,
1995. Id. The RO noted that the May 1995 VA examination showed that the
veteran had reported
the presence of tinnitus since 1962. R. at 333.
In April 2005, the RO determined that Mr. Cameron was not entitled to
payment of attorneys
fees from past due benefits arising from the May 2004 award of service
connection for the right ear
hearing loss and for tinnitus. R. at 596. The RO reasoned that the Board
did not make a final
decision on this case. Id. Mr. Cameron filed an NOD in June 2005. R. at
192-97. An October 2005
Statement of the Case determined that the issues of service connection for
right ear hearing loss and
tinnitus were never issues in a final Board decision. R. at 172.
In May 2006, Mr. Mask notified VA that Mr. Cameron was terminated as his
attorney in
December 2004. R. at 87.
B. Jungle Rot/Tinea Pedis and Left Knee Disability
In a decision dated April 22, 2004, the RO granted service connection for
jungle rot and a
left knee disability. R. at 825-30. The parties here do not dispute that
the RO notified Mr. Mask of
the decision by letter dated May 24, 2004. See R. at 6. Subsequently, in
June 2006, the RO
determined that Mr. Cameron was entitled to $2,922.60 for attorney fees
based on that decision. R.
at 63. The RO stated: “These attorney fees are payable from April 25, 1995,
effective date of the
awards of service connection for left knee disability with arthritis and
of service connection for
4

jungle rot/tinea pedis, to April 22, 2004, the date of the VA Regional
Office Rating decision on these
issues.” Id. Mr. Cameron appealed. He disagreed with the RO finding that
the past due period
extends from April 25, 1995, until April 22, 2004, and argued that the
period should extend from
April 25, 1995, until May 14, 2004, when the RO mailed its notice of
decision to Mr. Mask and to
his office. R. at 51 (relying on 38 U.S.C. § 5104(a)).
C. May 14, 2008, Board decision
In the May 2008 Board decision on appeal, the Board (1) denied entitlement
to an award of
attorney’s fees based on a rating decision dated May20, 2004, which
awarded service connection for
right earhearing loss and tinnitus; and (2)deniedentitlementto anawardof
additional attorney’s fees
based on a decision of April 22, 2004 (which granted service connection
for jungle rot/tinea pedis
and a left knee disability) to include consideration of whether the past
due benefits period upon
which the award of attorney’s fees was based should include a period
subsequent to April 22, 2004.
R. at 3-14. As to the requested fees based on the award for the hearing
loss and tinnitus, the Board
found that the issues granted in the May 20, 2004, decision were never the
subject of a final decision
by the Board. R. at 4. As to the additional fees based on the award for
jungle rot and left knee
disability, the Board found that the RO properly calculated the “past due
benefits” period as ending
on the date of the April 22, 2004, RO decision granting the benefits and
determined that there was
no support in the regulation, 38 C.F.R. § 20.609(h0(3), that the date of
notification should be the
determining date. R. at 8.
II. ANALYSIS
The appellant primarily makes two arguments on appeal: First, he argues
that the Board
failed to provide an adequate statement of reasons or basis for its
determination that claims for right
ear hearing loss and tinnitus were not reasonably raised by the evidence
prior to the October 1997
Board decision. Appellant’s (App.) Brief (Br.) at 11-20. Second, he also
contends that, pursuant to
38 U.S.C. § 5904(d), attorney’s fees should be paid up to the date that a
veteran’s benefits are paid
or received by the veteran, not only to the date of the decision awarding
the benefits. App. Br. at 20-
27.
5

The Secretary maintains that the Court should affirm the Board’s finding
that the appellant
is not entitled to an award of fees for the grant of past-due benefits for
right ear hearing loss and
tinnitus. Secretary’s Br. at 9-12. The Secretary argues that the Board
devoted several pages
enumerating the evidence supporting its conclusion that the “claim for
right ear hearing loss was not
reasonably raised until January 2004.” Id. at 11. The Secretary, however,
is silent with respect to
whether the Board appropriately concluded that a claim for tinnitus was
not reasonably raised prior
to the 1997 Board decision. See Secretary’s Br. at 1-12. Indeed, the
Secretary’s brief does not
include any relevant facts in this case that pre-date the 1998 attorney-
fee agreement. See id. at 2-3.
As to the appellant’s second argument, the Secretarymaintains that his
interpretation of the language
at issue in section 5904(d)(3) is provided in his own regulation, 38 C.F.R.
§ 20.609(h)(3), which
provides for “the date of the grant of the benefit,” and the Court should
defer to his reasonable
interpretation as being the actual date of the decision. Id. at 7-8. He
maintains that his interpretation
is not plainly erroneous or inconsistent with the regulation itself. Id.
at 9 (citing Haas v. Peake,
525 F.3d 1168, 1186 (Fed. Cir. 2008).
A. Attorney’s Fees Based on the Award for Right Ear Hearing Loss and
Tinnitus
At the time Mr. Cameron undertook representation of Mr. Mask in 1998,
section 5904(c)
provided, in pertinent part:
[A] fee maynot be charged, allowed, or paid for services of agents and
attorneys with
respect to services provided before the date on which the Board of
Veterans’ Appeals
first makes a final decision in the case. Such a fee may be charged,
allowed, or paid
in the case of services provided after such date only if an agent or
attorneyis retained
with respect to such case before the end of the one-year period beginning
on that
date.
38 U.S.C. § 5904 (c)(1) (emphasis added).1
Under 38 C.F.R. § 20.609(c), the implementing
regulation for section 5904(c)(1) then in effect, an attorney could charge
fees only if the following
conditions have been met: (1) A final decision has been promulgated by the
Board with respect to
the issue, or issues involved; and (2) the attorney was retained not later
than one year following the
Section 5094(c)(1) was subsequently amended to eliminate the requirement
of a final Board decision, instead
providing that “a fee may not be charged, allowed, or paid for services of
agents or attorneys with respect to services
provided before the date on which a notice of disagreement is filed with
respect to the case.” See Veterans Benefits,
Health Care, and Information Technology Act of 2006, Pub. L. 109-461, 120
Stat. 3407 (effective June 20, 2007).
1
6

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

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

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

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

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

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

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