Veteranclaims’s Blog

January 8, 2016

Cogburn v. McDonald, No.2014-7130(Decided: January 7, 2016); Implicit Denial Rule; Formal claims; Informal claims; Pending claims

Excerpt from decision below:

The implicit denial rule, however, “provides that, in
COGBURN v. MCDONALD 5

certain circumstances, a claim for benefits will be deemed
to have been denied, and thus finally adjudicated, even if
the [VA] did not expressly address that claim in its decision.”Id. at 961. The implicit denial rule applies when
the VA’s decision provides a veteran with reasonable
notice that his claim for benefits was denied. Id. at 964.

We conclude that the implicit denial rule can apply
where a pending claim is filed separately from the explicitly
denied claim and that pending claim is based on a
distinct medical diagnosis. In Adams, this court held that
“the fact that the claims were not filed at the same time
does not mean that the implicit denial rule does not
apply.” 568 F.3d at 962. The court clarified that “the key
question in the implicit denial inquiry is whether it would
be clear to a reasonable person that the [VA’s] action that
expressly refers to one claim is intended to dispose of
others as well.” Id. at 964. Therefore, 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.

We also conclude, like the court in Munro v. Shinseki,
that the implicit denial rule applies to both formal and
informal claims. 616 F.3d 1293, 1297 (Fed. Cir. 2010)
(after finding “no proper basis to distinguish between
formal and informal claims,” the court determined that
“the implicit denial rule may be applied to terminate the
pending status of both formal and informal claims”).”

==================

United States Court of Appeals for the Federal Circuit
______________________
DENNIS W. COGBURN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7130
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-3323, Judge Lawrence B.
Hagel.
______________________
Decided: January 7, 2016
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
LOREN MISHA PREHEIM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; DAVID J.
BARRANS, AMANDA BLACKMON, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.
COGBURN 2 v. MCDONALD
______________________
Before PROST, Chief Judge, DYK and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Dennis W. Cogburn appeals from a final judgment of
the United States Court of Appeals for Veterans Claims
affirming a Board of Veterans’ Appeals decision, which
found that both formally and informally raised claims
were implicitly denied in a 1985 Board decision. Because
the implicit denial rule applies to both formal and informal
claims, and its use does not violate the notice provision
of the United States Department of Veterans Affairs
due process regulation, we affirm.
I
Mr. Cogburn served in the United States Army from
August 1968 to August 1971, including a 12-month tour of
duty in Vietnam. In November 1974, Mr. Cogburn sought
both disability compensation and pension benefits from
the United States Department of Veterans Affairs (VA)
based on a severe nervous condition. In December 1974,
Mr. Cogburn was diagnosed with depressive neurosis. On
March 11, 1975, Mr. Cogburn’s claim for pension benefits
was denied, but the denial did not address the claim for
disability compensation. He did not appeal and the
decision became final.
In June 1983, Mr. Cogburn submitted another application
for disability compensation and pension benefits
based on “nervous disorders.” J.A. 51. In August 1983,
Mr. Cogburn was diagnosed with Post-Traumatic Stress
Disorder (PTSD) after a VA examination. The Regional
Office (RO), however, returned the examination as inadequate
for rating purposes because it failed to connect Mr.
Cogburn’s PTSD to stressors from a period of military
service. In January 1984, the RO granted non-service
COGBURN v. MCDONALD 3

connection pension, but denied service connection for
PTSD.
Mr. Cogburn appealed the 1984 RO decision to the
Board of Veterans’ Appeals. In its 1985 decision, the
Board framed the issue as “[e]ntitlement to service connection
for a psychiatric condition claimed as posttraumatic
stress disorder.” J.A. 59. After recounting
Mr. Cogburn’s symptoms, history of treatment, and his
diagnoses of depressive neurosis, schizophrenia, and
PTSD, the Board concluded that the record did not establish
“a posttraumatic stress disorder caused by military
service.” J.A. 63. The Board explained that the service
records did not disclose “any evidence of psychiatric
impairment,” J.A. 60, and that other evidence of record
did not identify any in-service traumatic events that may
have caused the PTSD. The decision notes that the record
was lacking because Mr. Cogburn repeatedly failed to
attend further VA examinations, which were intended to
determine if service-connected stressors caused his PTSD.
The Board determined that “the preponderance of the
medical evidence suggests that the veteran’s post service
emotional and adjustment difficulties are manifestations
of schizophrenia.” J.A. 63. At that time, there was no
opportunity for further review because the Veterans
Court was not established until 1988.
In 2002, Mr. Cogburn inquired about the status of his
1974 claim for disability compensation, arguing that this
claim was never adjudicated. The RO determined that
the 1974 claim was previously adjudicated as a claim for
PTSD and, therefore, had been implicitly denied in the
1985 Board decision. In 2012, after a remand from the
Veterans Court for proper consideration of this issue, the
Board affirmed the RO’s finding of implicit denial. The
Board concluded that the 1985 Board decision “provided
notice such that a reasonable person could infer that any
claims of entitlement to service connection for any other
psychiatric disability [including formal and informal
COGBURN 4 v. MCDONALD

claims for nervous disorders, schizophrenia, and depressive
neurosis] had been decided unfavorably.” J.A. 95.
The Veterans Court affirmed after finding that the
Board thoroughly weighed the evidence and applied the
correct standard when concluding that the 1985 decision
implicitly denied any pending claims for disability compensation
due to psychiatric disorders. The Veterans
Court also rejected Mr. Cogburn’s argument that the
implicit denial rule violated the VA’s due process regulation
requiring notice when a claim is denied. Mr. Cogburn
appeals.

II
We have jurisdiction to review decisions of the Veterans
Court “with respect to the validity of a decision of the
Court on a rule of law or of any statute or regulation
. . . or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the
Court in making the decision.” 38 U.S.C. § 7292(a). We
review a claim of legal error in a decision of the Veterans
Court without deference. See Szemraj v. Principi, 357
F.3d 1370, 1372 (Fed. Cir. 2004).
Mr. Cogburn argues that the Veterans Court erred in
affirming the Board’s application of the implicit denial
rule. First, he contends that the implicit denial rule
cannot apply where, as here, the pending claim is filed
separately from the explicitly denied claim and is based
on a distinct medical diagnosis. Additionally, at oral
argument, Mr. Cogburn asserted that the implicit denial
rule cannot apply to formal claims. See Oral Argument at
4:14–26, http://oralarguments.cafc.uscourts.gov/default.
aspx?fl=2014-7130.mp3. We reject both arguments.
Generally, both formal and informal claims for benefits
remain pending until they are finally adjudicated.
Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009).
The implicit denial rule, however, “provides that, in
COGBURN v. MCDONALD 5

certain circumstances, a claim for benefits will be deemed
to have been denied, and thus finally adjudicated, even if
the [VA] did not expressly address that claim in its decision.”
Id. at 961. The implicit denial rule applies when
the VA’s decision provides a veteran with reasonable
notice that his claim for benefits was denied. Id. at 964.
We conclude that the implicit denial rule can apply
where a pending claim is filed separately from the explicitly
denied claim and that pending claim is based on a
distinct medical diagnosis. In Adams, this court held that
“the fact that the claims were not filed at the same time
does not mean that the implicit denial rule does not
apply.” 568 F.3d at 962. The court clarified that “the key
question in the implicit denial inquiry is whether it would
be clear to a reasonable person that the [VA’s] action that
expressly refers to one claim is intended to dispose of
others as well.” Id. at 964. Therefore, 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.
We also conclude, like the court in Munro v. Shinseki,
that the implicit denial rule applies to both formal and
informal claims. 616 F.3d 1293, 1297 (Fed. Cir. 2010)
(after finding “no proper basis to distinguish between
formal and informal claims,” the court determined that
“the implicit denial rule may be applied to terminate the
pending status of both formal and informal claims”).
Here, Mr. Cogburn argues that the implicit denial
rule can only apply to informal claims. Mr. Cogburn
asserts that this court, in Adams, incorrectly relied upon
38 C.F.R. § 3.160(c) to demonstrate that formal and
informal claims are indistinguishable. See Oral Argument
at 3:55–4:14, 10:40–12:30 (citing 568 F.3d at 960)
(“A claim for benefits, whether formal or informal, reCOGBURN
6 v. MCDONALD
mains pending until it is finally adjudicated.”).
Mr. Cogburn contends that formal and informal claims
are distinguishable because only formal claims can be
pending claims, which are required to be fully adjudicated
under 38 C.F.R. § 3.160(c), while informal claims are not
considered pending claims and are therefore not required
to be fully adjudicated. Id. at 4:47–5:02, 10:10–12:30
(citing 38 C.F.R. § 3.160(c) (2015), which defines “pending
claim” as “[a] claim which has not been finally adjudicated”).
Mr. Cogburn asserts that this distinction requires
limiting the application of the implicit denial rule to
informal claims.
Mr. Cogburn’s distinction incorrectly relies upon the
definition of “pending claim” found in the VA’s recently
amended adjudication and appeals regulations, effective
March 24, 2015. The VA’s new regulations replace the
“informal claim” with the “intent to file a claim for benefits.”
See Standard Claims and Appeals Forms, 79 Fed.
Reg. 57660, 57664 (Sept. 25, 2014). To reflect this change,
the term “informal claim” was removed from the regulations.
Id. at 57674, 57678 (“Since VA is eliminating the
term ‘informal claim,’ it has removed references to the
phrase ‘informal claim’ . . . for consistency in these adjudication
regulations to reflect this change.”). Prior to March
24, 2015, however, “pending claim” was defined as “an
application, formal or informal, which has not been finally
adjudicated.” 38 C.F.R. § 3.160(c) (2013).
Mr. Cogburn’s appeal is governed by the language of
the former regulations because his claim and appeal were
pending under those regulations.1 See Standard Claims
1 Likewise, because Adams v. Shinseki was decided
well before the regulations were amended, the court was
correct in its reliance on the definition of “pending claim”
to demonstrate that formal and informal claims are
indistinguishable. 568 F.3d at 960.
COGBURN v. MCDONALD 7
and Appeals Forms, 79 Fed. Reg. at 57686 (“[T]his final
rule will apply only with respect to claims and appeals
filed 180 days after the date this rule is published in the
Federal Register as a final rule. Claims and appeals
pending under the current regulations as of that date
would continue to be governed by the current regulations.”).
Therefore, Mr. Cogburn’s distinction is irrelevant
because the applicable definition of “pending claim”
applies to both formal and informal claims. Since we find
no proper basis to distinguish between formal and informal
claims, we conclude that the implicit denial rule may
be applied to both formal and informal claims.
III
Lastly, the implicit denial rule does not violate the notice
provision found in the VA’s due process regulation.
At the applicable time, the due process regulation provided
that “[t]he claimant will be notified of any decision
affecting the payment of benefits or granting relief.
Notice will include the reason for the decision and the
date it will be effectuated as well as the right to a hearing
. . . .” 38 C.F.R. § 3.103(e) (1975 & 1985). In Adams, this
court held that the implicit denial rule does not violate
the Due Process Clause of the Fifth Amendment because
“the implicit denial rule is, at bottom, a notice provision.”
568 F.3d at 965. Specifically, the court determined that
when the implicit denial rule applies, the claimant necessarily
“received adequate notice of, and an opportunity to
respond to, the [VA’s] decision . . . [and therefore] was not
deprived of any due process rights.” Id.
The VA’s due process regulation mirrors constitutional
due process by requiring notice that a claim has been
denied. See, e.g., Cleveland Bd. Of Educ. v. Loudermill,
470 U.S. 532, 542 (1985) (“An essential principle of due
process is that a deprivation of life, liberty, or property be
preceded by notice and opportunity for hearing appropriate
to the nature of the case.”) (internal citation and
COGBURN 8 v. MCDONALD
quotation marks omitted). Because the implicit denial
rule is a notice provision, the 1985 decision necessarily
provided Mr. Cogburn with adequate notice that his
formal claim for a severe nervous condition, and all informal
claims related to his diagnoses of depressive
neurosis and schizophrenia, had been denied. Accordingly,
the application of the implicit denial rule does not
violate Mr. Cogburn’s right to receive notice pursuant to
the VA’s due process regulation.
IV
We lack jurisdiction to consider Mr. Cogburn’s remaining
arguments concerning the Board’s application of
the implicit denial rule to the facts of this case. 38 U.S.C.
§ 7292(d)(2).
Because the implicit denial rule applies to both formal
and informal claims, and its use does not violate the
notice provision of the VA’s due process regulation, the
judgment of the Veterans Court is affirmed.
AFFIRMED
No costs.

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