Veteranclaims’s Blog

May 7, 2012

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. 205, 212-14; Implicit Denial, Four Factors

Excerpt from decision below:
“”The ‘implicit denial’ rule provides that, in certain circumstances, a
claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision.” Adams, 568 F.3d at 961. “[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.” Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding 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”). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) “The relatedness of the claims”; (2) “whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied”; (3) “the timing of the claims”; and (4) whether “the claimant is represented.” Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010).
Although the Board issued its decision after Cogburn had been decided, the
Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and
explained that “[f]or an ‘implicit denial’ of an unadjudicated claim, the
claim must be closely related to the adjudicated issue.” R. at 14.
===========================

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-910
RONALD FRADKIN, 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: Theproseappellant,Ronald Fradkin,appealsaMarch16,2011,
Board of Veterans’ Appeals (Board) decision that (1) denied entitlement to an effective date earlier than April 28, 1995, for the award of disability compensation for major depression, and (2) determined that a November 22, 1971, rating decision is final and did not involve clear and unmistakable error (CUE). Record of Proceedings (R.) at 3-30. 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. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to provide an adequate statement of reasons and bases for its determination that the appellant’s 1971 application for compensation
benefits for a “nervous condition” included reasonably construed claims
for chronic anxiety, depressive neurosis, and schizoid personality disorder, and that the November 22, 1971, rating decision implicitly denied the claims for chronic anxiety and depressive neurosis, the Court will vacate the Board’s March 16, 2011, decision and remand the matter for
further adjudication consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from June 5,
1967, to January 8, 1971. R. at 1250. In 2002, he was awarded disability compensation for recurrent major depression, effective April 28, 1995, the date of filing of a reopened claim. R. at 613-17, 631-40, 1046-49. The
appellant’s appeal stems from his disagreement with the assigned effective
date. He seeks a January 9, 1971, effective date based on the assertion that his October 4, 1971, claim for disability compensation for a “nervous condition” included claims for benefits based on diagnoses of “chronic
anxiety” and “depressive neurosis” that remained pending and unadjudicated
since 1971. In the alternative, assuming his 1971 claims were finally adjudicated, he seeks to reverse or revise on the basis of CUE the November 22, 1971, rating decision that denied disability
compensation for a
“nervous condition.” Because this is the third time the appellant’s appeal
of the effective date
decision is before the Court, the Court will not provide a detailed
recitation of the facts, except where
pertinent to the Court’s analysis. See Fradkin v. Shinseki, No. 09-0096,
2010 WL 2316256 (Vet.
App. June 9, 2010) (mem dec.); see also Fradkin v. Nicholson, No. 04-730,
2006 WL 3007303 (Vet.
App. Sept. 30, 2006) (order).
II. ANALYSIS
A. Finality of the November 22, 1971, Rating Decision
In the March 16, 2011, decision here on appeal, the Board denied
entitlement to an effective
date prior to April 28, 1995, for an award of disability compensation for
major depression. R. at 3-
21. In rendering its decision, the Board determined that (1) the
appellant’s October 4, 1971,
application for compensation benefits for a “nervous condition” is ”
reasonably construed as a claim
for service connection for chronic anxiety, depressive neurosis, and
schizoid personality disorder”;
(2) although the November 1971 rating decision did not explicitly address
chronic anxiety or
depressive neurosis, the claims were implicitlydenied in the decision; (3)
the December 1971 notice
letter informed the appellant that his claim had been denied because his ”
nervous condition was not
considered to be a disability within the meaning of the law”; and (4) “the
November 1971 rating
decision and the December 1971 notice letter provided notice sufficient
enough for the [v]eteran to
know that service connection for a psychiatric disorder including chronic
anxiety or a depressive
2

neurosis had been denied.” R. at 5, 11-17. As a result, the Board
concluded that the November 22,
1971, rating decision is final and cannot provide a basis for entitlement
to an earlier effective date
absent CUE. R. at 17.
The Board also rejected the appellant’s argument that he was mentally ill
and unable to file
an appeal timely from the November 22, 1971, rating decision. R. at 17- 19.
The Board found that
the principles of equitable tolling did not apply to the time for the
veteran to perfect an appeal to the
Board and, even assuming that they did, (1) there was “no suggestion in
the record that the [v]eteran
was incompetent for VA purposes or otherwise mentally incapable of
pursuing a timely appeal, and
(2) the doctrine of equitable tolling cannot apply because the appellant
never filed an appeal from
the November 1971 rating decision. Id.
The appellant argues that the Board erred when it determined that his
claims for chronic
anxiety and depressive neurosis were implicitly denied by the November 22,
1971, rating decision.
Appellant’s Brief (Br.) at 8-15. He argues that although the rating
decision identified the “issue” as
a “nervous condition,” the regional office (RO) limited its discussion of
the facts to a “schizoid
personality disorder.” Therefore, because there is nothing in the rating
decision or notice of
disallowance that refers or alludes to the diagnoses of chronic anxiety
and depressive neurosis, the
appellant argues there is no reasonable basis for concluding that claims
based on these diagnoses
were considered and denied.1
Id. at 10-15.
The November 22, 1971, rating decision identified the issue as “[s]ervice
connection for
nervous condition,” and found that the “[v]eteran’s official [s]ervice [r]
ecords show he was observed
in August . . . 1968 for an emotional problem and found to have [s]chizoid [
p]ersonality [d]isorder.”
R. at 1121. The rating decision then states: “Constitutional or
developmental abnormality – not a
disabilityunderthelaw[.] SCHIZOID PERSONALITY DISORDER.” Id. On December
27, 1971,
the RO sent the appellant a notice letter, which stated:
This will advise you of the decision in your claim for disability. Based
upon a
complete review of your service records and the other evidence contained
in your
file, it has been necessary to deny your claim.
This denial was based upon a determination that your [n]ervous condition
is not
considered a disability within the meaning of the law.
R. at 1117.
3
1

TheBoardfoundthat the appellant’s “October1971claimofserviceconnection
foranervous
condition included the issues of service connection for schizoid
personality disorder, depressive
neurosis[,] and chronic anxiety.” R. at 13-14 (emphasis added); see
Fradkin v. Shinseki, 2010 WL
2316256, at *6 (remanding matter for the Board to make the substantially
factual determination
whether the appellant’s claim for disability compensation for a “‘nervous
condition’ included the
issues of ‘chronic anxiety’ and ‘depressive neurosis’ or constituted
separate claims for ‘chronic
anxiety’ and ‘depressive neurosis'” (emphasis added)). In accordance with
the Court’s decision in
Clemons v. Shinseki, 23 Vet.App. 1 (2009), the Board stated that the
appellant’s application
demonstrated that “he was filing a claim for his current psychiatric
disorder, although he did not
identify a specific clinical diagnosis.” R. at 13; see Clemons, 23 Vet.App.
at 5-6 (noting that a
claimant does “not file a claim to receivebenefits onlyfor a particular
diagnosis, but forthe affliction
his [ ] condition, whatever that is, causes him” and holding that a single
claim for disability
compensation can encompass more than one condition). This statement by the
Board suggests that
the appellant filed one claim for a mental disability and that the RO’s
adjudication of the claim
required it to weigh and assess the nature of the appellant’s current
condition by considering all
potential diagnoses of record to determine whether the appellant’s
psychiatric disability was related
to service. See Clemons, 23 Vet.App. at 5 (when determining the scope of a
mental disability 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”).
However, in addressing the appellant’s argument that “the November 1971
rating decision
only denied the claim of service connection for schizoid personality
disorder and . . . did not
adjudicatetheclaimsforserviceconnection
forchronicanxietyanddepressiveneurosis,”theBoard’s
analysis suggests that it treated the appellant’s October 1971 application
as having raised three
separate claims for disability benefits. R. at 14 (finding that “the claim
of service connection for
chronic anxiety and depressive neurosis were implicitly denied in the
November 1971 rating
decision”). In this regard, the Board observed that a claim for benefits
may be implicitlydenied, and
thus finally adjudicated, even if the rating decision did not explicitly
address that claim in its
4

decision. R. at 14 (citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir.
2009) and Deshotel v.
Nicholson, 457 F.3d 1258 (Fed. Cir. 2006)).
“The ‘implicit denial’ rule provides that, in certain circumstances, a
claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision.” Adams, 568 F.3d at 961. “[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.” Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding 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”). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) “The relatedness of the claims”; (2) “whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied”; (3) “the timing of the claims”; and (4) whether “the claimant is represented.” Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010).
Although the Board issued its decision after Cogburn had been decided, the
Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and
explained that “[f]or an ‘implicit denial’ of an unadjudicated claim, the
claim must be closely related to the adjudicated issue.” R. at 14. In this regard, the Board found that
the appellant’s claim for
“schizoid personality disorder and the implicit claims of service
connection for chronic anxiety and
depressive neurosis are closely related since they each may represent a
nervous condition as
generally claim[ed] by the [v]eteran.” R. at 15. The appellant argues that
the Board’s reason for
concluding that his claim for a schizoid personality disorder was closely
related to his claims for
chronic anxiety and depressive neurosis is incorrect because according to
the Diagnostic and
StatisticalManual of Mental Disorders (2d ed. 1968) (DSM-II) anxietyand
depression areneuroses,
and personality disorders are not. See DSM-II at 41 (providing that
personality disorders “are
characterized by deeply ingrained maladaptive patterns of behavior that
are perceptibly different in
5

quality from psychotic and neurotic symptoms”). Thus, although each
diagnosis is indicative of a psychiatric disability, they all do not represent “nervous conditions.”
With regard to the second factor identified in Cogburn, the crux of the appellant’s argument is that the RO failed to discuss the claims for chronic anxiety and depressive neurosis in terms sufficient to put him on notice that theywere being considered and denied because neither the rating
decision nor the notice letter discussed either diagnosis or evidence
related these diagnoses (e.g.,
postservice hospital treatment records and a January 6, 1970, service
medical record). Appellant’s
Br. at 10-15. He persuasivelyargues that unlike Deshotel, supra, where the
RO stated that there was
“no psychiatric symptomatology,” and Adams, supra, where the RO stated
that it “had considered
his affidavit,” it would have been illogical for him to conclude that
anything other than a schizoid
personality disorder was considered. Id. In response, the Secretary argues
that “[b]ecause the
competing diagnoses were predicated upon the same symptomatology, [the a]
ppellant should have
recognized that the denial of entitlement as to one psychiatric diagnosis
was, effectively, a denial as
to all.” Secretary’s Br. at 13.
The Secretary’s argument is not availing because he does not provide any
support for his
assertion that the competing diagnoses are based on the same
symptomatology and it was not the
basis provided by the Board for its determination that the rating decision
and notice letter provided
“notice sufficient enough for the [v]eteran to know that service
connection for a psychiatric disorder
including chronic anxiety or a depressive neurosis had been denied.” R. at
17; see Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]
itigation positions’
are not entitled to deference when they are merely appellate counsel’s
‘post hoc rationalizations’ for
agency action advanced for the first time in the reviewing court.”). The
Board stated:
Clearly, on this record, the RO found that the current nervous condition
was
diagnosed as a schizoid personality disorder and denied the [v]eteran’s
claim on the
basis that it was not considered to be a disease or injury under the
applicable
legislation. Such language, thus, informed the [v]eteran that the RO had
determined
that he did not have either a specific anxiety disorder or depressive
neurosis that was
present in or could be linked to service.
To the extent that the [v]eteran did not identify any specific psychiatric
diagnosis in
connection with his initial claim, it would be reasonable that VA did not
. . .
6

expressly discuss an innocentlyacquired psychiatric disorder in
connection with that
decision.
R. at 15.
Despite the apparent clarity that the Board discerns from the 1971 rating
decision, it remains
entirely unclear to the Court what information in the rating decision the
Board regards as alluding
to the appellant’s overall psychiatric disabilityin such a waythat the
appellant reasonablycould have
inferred that the RO determined he did not have a specific anxiety
disorder or depressive neurosis
that was present in or could be linked to service. 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, No. 06-0095, 2008 WL 2128005, slip op.
at 6 (Vet. 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 “[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”).
Because the notice documents relied upon by the Board fail to mention
either diagnosis, or
the evidence related thereto, and, unlike a schizoid personality disorder,
anxiety disorders and
depressive neurosis are compensable disabilities, the Board needs to
explain what “language”
reasonably put the appellant on notice that the RO determined he did not
have an anxiety disorder
or depressive neurosis. Compare 38 C.F.R. § 3.303(c) (1971) (providing
that “personalitydisorders
and mental deficiency as such are not diseases or injuries within the
meaning of applicable
legislation” and, therefore, are not compensable) with 38 C.F.R. § 4.132,
Diagnostic Codes 9400 (anxiety reaction), 9405 (depressive reaction) and 9406 (providing the general rating formula for psychoneurotic disorders) (1971); see also Cogburn, 24 Vet.App. at 216 (instructing the Board to
7

consider on remand “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-
traumaticstressdisorder
[(PTSD)]” based on legal criteria unique to PTSD).
Although the Court is mindful of the lengthy procedural history of this
case, the Court
nonetheless concludes that the Board’s failure to provide an adequate
statement of reasons or bases
frustrates judicial review. Therefore, remand is required. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that 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”). On remand, the Board must discuss the four factors identified in Cogburn, supra, in determining whether the appellant’s 1971 claim was finally adjudicated in the November 22, 1971, rating decision.
Given this disposition, the Court will not at this time address the
remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). “A narrow decision preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him.”
Id. Nonetheless, the Court notes that the appellant argues here on appeal
that as a result of his
mental impairment in 1971, he would not have been able to infer that his
claims were implicitly
denied in the November 1971 rating decision. Appellant’s Br. at 15-20. In
essence, he argues that notice that “requires the analytical skills of a ‘reasonable’ person is inadequate to inform one whose ability to think rationally is impaired.” Id. at 17; see Adams, 568 F.3d at 961 (“[T]he implicit denial rule is, at bottom, a notice provision.”); Thurber v. Brown, 5 Vet.App. 119, 123 (1993) (“The 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.”). Although the Court will not address this argument in the first instance, the Court observes
that the Board stated that
“[t]here is no suggestion in the record that the [v]eteran was incompetent
for VA purposes or
otherwise mentally incapable of pursuing a timely appeal” in 1971. R. at
18. As noted by the
appellant (Appellant’s Br. at 19), the record contains a letter from his
treating psychotherapist who
opined, based on the appellant’s mental condition in 1971, that he “could
not have proactively
8

responded to VA’s denial of his claim.” R. at 551-53. This is potentially
favorable evidence that the
Board must weigh and assess when considering the appellant’s arguments.
See Caluza v. Brown,
7 Vet.App. 498, 506 (1995) (the Board must analyze the credibility and
probative value of the
evidence, account for the evidence it finds persuasive or unpersuasive,
and provide the reasons for
its rejection of any material evidence favorable to the claimant), aff’d
per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
B. CUE in the November 22, 1971, Rating Decision
Because the appellant’s assertion of CUE in the November 22, 1971, rating
decision is
inextricably intertwined with the question whether the rating decision
implicitly denied claims for
“chronic anxiety” and “depressive neurosis” or whether the claims have
remained pending since
1971, the Court will also vacate the Board’s determination that there was
no CUE in the November
22, 1971, rating decision. See Harris v. Derwinski, 1 Vet.App. 180, 183 (
1991) (holding that where
a decision on one issue could have a “significant impact” upon another,
the two claims are
inextricably intertwined),overruled on other grounds by Tyrues v.Shinseki, 23 Vet. App.166(2009).
In pursuing these matters on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s March 16, 2011, decision is VACATED and the matter is
REMANDED for
further proceedings consistent with this decision.
DATED: May 1, 2012
9

Copies to:
Ronald Fradkin
VA General Counsel (027)
10

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