Veteranclaims’s Blog

March 25, 2011

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. Implicit Denial, Specificity of Adjudication, Relatedness of the Claims

Excerpt from decision below:
“First, the specificity of the August 1996 Board decision makes it unlikely that a claimant would anticipate that the Board was adjudicating a service connection claim for allergic rhinitis. See Cogburn v. Shinseki, 24 Vet.App. 205, 216 (2010) (noting that specificity of adjudication is a factor to consider in determining whether a claim has been implicitly denied). The August 1996 Board repeatedly referred to two conditions related to a respiratory disorder – asthma and sinusitis – and the decision discussed only evidence relating to these conditions. At no point did the Board refer to any respiratory disorder other than sinusitis and asthma. Second, the decision does not purport to deny any claim for a disability related to a respiratory disorder, and a reasonable claimant would not construe a grant of service connection for a respiratory disorder based on sinusitis and asthma conditions to be, in the same breadth, a denial of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because the conditions in question are so closely related. See id. at 215-16 (noting that the relatedness of the claims is a factor to consider in determining whether a claim has been implicitly denied).”
==============================================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1849
PAUL J. SACIA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Paul J. Sacia, through counsel, appeals a
May14, 2009,
Board of Veterans’ Appeals (Board) decision in which the Board denied his
claims for entitlement
to an effective date earlier than October 18, 1996, for the grant of
service connection for allergic
rhinitis and for entitlement to an increased disability rating for service-
connected allergic rhinitis.
Record of Proceedings (R.) at 29. He does not challenge the Board’s
findings pertaining to his
increased disability rating claim, and that claim is deemed abandoned. See
Ford v. Gober,
10 Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are
deemed abandoned).
This appeal is timely, and the Court has jurisdiction to review the
Board’s decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the
appellant filed a reply brief.
Additionally, the appellant filed a citation of supplemental authority
under Rule 30(b) of the Court’s
Rules of Practice and Procedure. Single-judge disposition is appropriate.
See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
reverse the Board’s decision
and remand the matter for further proceedings consistent with this
decision.

I. BACKGROUND
The Board found that the appellant had active service in the U.S. Army from
January3, 1991, to July 1, 1991, and from February 14, 1994, to July 21, 1994. R. at 4.
In a June 1995 rating decision, the regional office (RO) denied the
appellant’s claim for entitlement to service connection for “respiratory and/or pulmonary impairment, including asthma/bronchitis, sinusitis.” R. at 1845. The rating codesheet attached to the decision shows that the appellant was found to be non-service connected for “RESPIRATORY/PULMONARY IMPAIRMENT; ASTHMA and/or BRONCHITIS, and SINUSITIS/RHINITIS.” R. at 1848. In July 1996, the appellant filed a VA Form 9, Appeal to Board of Veterans’ Appeals, expressing his desire to appeal this decision. R. at 1748. He specifically listed rhinitis on this form. Id. At a July 1996 Board hearing, the hearing officer indicated that the issue on appeal was ” entitlement to service connection for an undiagnosed condition causing respiratory and pulmonary impairment including asthma, bronchitis, and sinusitis.” R. at 1766.
In August 1996, the Board issued a decision granting the appellant’s claim
for entitlement to service connection “for a respiratory disorder, specifically, asthma and sinusitis.” R. at 1763. The Board determined that, although asthma and sinusitis “clearly and unmistakably preexisted the appellant’s period of active duty,” those conditions “were shown to have chronically increased in severity during the appellant’s period of active duty.” R. at 1758. The Board specifically noted that the appellant had been treated for asthma and sinusitis in service. R. at 1760. The Board concluded that “service connection for the respiratory disorders referred to in service medical records, specifically asthma and sinusitis, is warranted.” Id. The Board’s decision did not expressly refer to allergic rhinitis. See generally R. at 1756-63.
The appellant submitted a letter to the RO in October 1996 inquiring as to
why his rhinitis claim was not part of the August 1996 Board decision. R. at 1440. He pointed out that the previous rating decision had included rhinitis. Id. He stated that “[i]n the [r]ating [s]chedule [r]hinitis is a distinct code that is indeed separate from both sinusitis and asthma. Therefore [r]hinitis cannot be
commingled with sinusitis.” Id. In an April 1999 rating decision, the RO
granted the appellant’s claim for entitlement to service connection for allergic rhinitis and assigned a 10% disability rating, effective June 30, 1997. R. at 1114. The RO stated that “[t]he previous rating action granted service
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connection for respiratory allergy in conjunction with the previously serviceconnected sinusitis” but that “[t]he [appellant’s] attorney has correctly noted that the rating schedule provides for separate evaluations for sinusitis and allergic rhinitis.” Id. In August 2005, the Board adjusted the assigned
effective date for service connection for allergic rhinitis to October 18,
1996. R. at 198.
In the May 2009 decision on appeal, the Board denied the appellant’s claim
for an effective date earlier than October 18, 1996, for the grant of service connection for allergic rhinitis. R. at 29.
The Board, apparently conceding that the appellant filed a claim for entitlement to
serviceconnection for allergic rhinitis prior to August 1996, determined that the August 1996 Board decision “implicitly denied” this claim. R. at 15 (citing Ingram v. Nicholson, 21 Vet.App. 232 (2007)). The Board stated that [t]he [August 1996] Board’s decision made note of the fact that the only respiratory disabilities which were present during service were sinusitis and asthma. In so doing, the Board effectively denied service connection for any and all respiratory disorders other than sinusitis and asthma, including allergic rhinitis. The August 1996 Board decision put the [appellant], who was represented by an attorney, on notice that his allergic rhinitis claim was being considered and rejected. In short, the denial of service connection for any respiratory disorders aside from sinusitis and asthma was a denial of service connection [for] allergic rhinitis. R. at 16. This appeal followed.

II. ANALYSIS
On appeal, the appellant contends that the implicit denial rule does not
apply to decisions of the Board and therefore it was not appropriate for the Board, in the decision on appeal, to determine that his claim for entitlement to service connection for allergic rhinitis was implicitly denied by the August 1996 Board. Appellant’s Brief (Br.) at 8-9. The Secretary argues that this case is controlled by a line of cases from both this Court and the U.S. Court of Appeals for the Federal Circuit. Secretary’s Br. at 6-8 (citing Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009) and Jones v. Shinseki, 23 Vet.App. 122 (2009)). He argues that the claim was implicitly denied by the RO in June 1995
(id. at 9-12) and that “[t]he August 1996 Board decision indicated that
all other respiratory disorders, other than asthma and sinusitis, were denied” (id. at 12). He contends that “[t]his exclusion of all other claims other than sinusitis and asthma should have put [the appellant] on notice that something
3

was not right about his appeal.” Id. In his reply brief, the appellant
attempts to distinguish the cases that the Secretary cited and reasserts that the implicit denial rule does not apply at the Board level.
Reply Br. at 3-5. He also argues that the August 1996 Board did not decide
the allergic rhinitis claim. Id. at 5.
The determination of the effective date of an award is generally governed
by 38 U.S.C. § 5110(a), which states that, “[u]nless specifically provided otherwise . . . , the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application
therefor.” 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (2010). A “pending
claim” is “[a]n application, formal or informal, which has not been finally adjudicated.”
38 C.F.R. § 3.160(c)
(2010). Consistent with this regulation, this Court has held that “[a]
reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent
‘claim’ for the same disability.” Ingram, 21 Vet.App. at 241. “[I]f the
appellant believes that the Secretary has incorrectly determined the date when his claim began, he may argue that the ‘claim’ identified was merely additional correspondence on his previously pending claim.” Id. at 243.
The Board conceded that the appellant’s “initial claim for VA benefits included a claim for service connection for allergic rhinitis.” R. at 5. Moreover, the Secretary does not dispute that the June 1995 RO decision denied the appellant’s claim for entitlement to service connection for allergic rhinitis. See Secretary’s Br. at 9-12; see also R. at 1848 (rating codesheet to June 1995 rating decision showing that the appellant was non-service connected for “RESPIRATORY/PULMONARY IMPAIRMENT; ASTHMA and/or BRONCHITIS, and SINUSITIS/RHINITIS”). Finally, there does not appear to be a dispute as to whether the allergic rhinitis claim was properly before the Board in August 1996. The Court notes that the appellant’s July 1996 Substantive Appeal to the Board specifically referred to rhinitis. R. at 1748.
In the briefs filed with the Court, the parties debate whether the implicit denial rule can apply to decisions of the Board. However, the Court need not reach this particular issue because, even assuming the rule does apply to Board decisions, the Board’s conclusion that a reasonable claimant would be able to deduce from the August 1996 Board decision that a claim for entitlement to service
4

connection for allergic rhinitis had been denied is clearly erroneous.
See Locklear v. Shinseki, __ Vet.App. __, __, No. 09-2675, slip op. at 9, U.S. Vet. App. 291, at *18-19 (Feb. 11, 2011) (applying the “clearly erroneous” standard to review a Board’s finding that a total disability rating based on individual unemployability was implicitly denied in earlier RO
and Board decisions); see
also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) (“‘A finding is ”
clearly erroneous” when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” (quoting
United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948))).
There are two reasons for the Court’s conclusion. First, the specificity
of the August 1996 Board decision makes it unlikely that a claimant would anticipate that the Board was adjudicating a service connection claim for allergic rhinitis. See Cogburn v. Shinseki, 24 Vet.App. 205, 216 (2010) (noting that specificity of adjudication is a factor to consider in determining whether a claim
has been implicitly denied). The August 1996 Board repeatedly referred to
two conditions related to a respiratory disorder – asthma and sinusitis – and the decision discussed only evidence relating to these conditions. At no point did the Board refer to any respiratory disorder other than sinusitis and asthma. Second, the decision does not purport to deny any claim for a disability related to a
respiratory disorder, and a reasonable claimant would not construe a grant
of service connection for a respiratory disorder based on sinusitis and asthma conditions to be, in the same breadth, a denial of a claim for entitlement to service connection for allergic rhinitis.
This is particularly true because the conditions in question are so closely related. See id. at 215-16 (noting that the relatedness of the claims is a factor to consider in determining whether a claim has been implicitly denied). The Court
notes that the appellant had a specific diagnosis of allergic rhinitis in
June 1994. R. at 2007. It is also worth pointing out that the appellant’s subsequent action indicates that he did not have actual knowledge that his allergic rhinitis claim was adjudicated in the August 1996 Board decision as, in October 1996, he mailed a letter to the RO inquiring into the status of the claim. R. at 1440. In
short, contrary to the Board’s conclusion, a reasonable claimant could not
have deduced from the August 1996 decision that a claim to entitlement to service connection for allergic rhinitis had been denied.
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Based on the foregoing analysis, the Board’s finding that the August 1996
Board implicitly denied the appellant’s claim to entitlement to service connection is
clearly erroneous and will be reversed. The Court will remand this matter to the Board for further adjudication consistent with this decision.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the Board’s May 14, 2009, decision is REVERSED and the matter is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: March 14, 2011
Copies to:
David Boelzner, Esq.
VA General Counsel (027)
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