[00:00:00] Speaker 00:
Our commencement is 14-7-1-3-0, Coburn versus New York.

[00:00:33] Speaker 00:
Good morning.

[00:00:54] Speaker 02:
Good morning, Your Honor.

[00:00:56] Speaker 02:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Dennis Cockburn.

[00:01:00] Speaker 02:
This appeal requires an examination of the use of this court's judicially created rule of law concerning the deemed denied or implicit denial rule.

[00:01:10] Speaker 02:
In this case, the board was, in our view, permitted unlawfully to use the implicit denial rule to evade its obligation to adjudicate Mr. Cogburn's pending claim for depressive neurosis, which began in 1974.

[00:01:23] Speaker 00:
Let me see, just for purposes of context here.

[00:01:28] Speaker 00:
You're seeking what?

[00:01:30] Speaker 00:
Do you want a remand?

[00:01:31] Speaker 00:
Do you want automatic, retroactive release?

[00:01:34] Speaker 00:
In 1985, there was an opinion, a decision that was not appealed.

[00:01:39] Speaker 00:
And your argument in this case is what should we do with respect to revisiting that 1985 case?

[00:01:47] Speaker 02:
Well, I'm asking this court not to revisit the 1985 case.

[00:01:50] Speaker 02:
I'm asking this court to order the Veterans Court to direct the VA to adjudicate the 1974 claim.

[00:01:58] Speaker 02:
for depressive neurosis, which remains pending because there has been no adjudication of that claim.

[00:02:05] Speaker 02:
And the board used the implicit denial rule to suggest that the depressive neurosis claim was in fact adjudicated when the board in 1985 adjudicated a post-traumatic stress disorder claim.

[00:02:17] Speaker 02:
Those are separate and distinct claims under this court's case law in both Boggs and Efrain.

[00:02:23] Speaker 02:
In those cases, this court recognized that the diagnosis of the condition controls the nature of the claim.

[00:02:31] Speaker 00:
But those cases were not about implicit denial.

[00:02:34] Speaker 00:
They were not.

[00:02:35] Speaker 00:
In contrast to some of the other opinions we've had, which seem to support the government's view that even though there's separate diagnoses, the implicit denial rule still would apply.

[00:02:46] Speaker 02:
Except in those cases, in Adams and Bess Hotel in particular,

[00:02:50] Speaker 02:
Those cases were based upon informal claims as opposed to a formal claim.

[00:02:55] Speaker 01:
Those cases recognize that if you could have two separate claims and that the denial of one claim could be an implicit denial of the other, correct?

[00:03:05] Speaker 02:
Well, they did, Your Honor, but they did so in the context of an informal or an inferred claim.

[00:03:10] Speaker 02:
What difference does that make?

[00:03:12] Speaker 02:
Well, the difference that it makes is that there's a VA regulation that was acknowledged by this court in Adams at 3.160

[00:03:19] Speaker 02:
that requires that or that defines the term pending claim and that a pending claim is a claim that has not yet been adjudicated, meaning there has been a decision on that claim.

[00:03:32] Speaker 02:
The 1974 claim for depressive neurosis

[00:03:35] Speaker 02:
has never received a rating decision by the VA.

[00:03:39] Speaker 01:
But that sounds like an argument that the implicit denial rule can't apply if you have two separate claims.

[00:03:45] Speaker 01:
Whereas Adams is very clear that if you would reasonably read the denial of one claim as encompassing the other, there's an implicit denial.

[00:03:53] Speaker 01:
Correct.

[00:03:56] Speaker 02:
I believe that the terminology or the use of the term claim in Adams was less precise

[00:04:02] Speaker 02:
because it was assuming that there was no difference between an informal claim, which is the type of claim that was raised in both Des Hotel and Adams, and a formal claim.

[00:04:13] Speaker 03:
So are you saying that the implicit denial rule can never apply to a formal claim?

[00:04:21] Speaker 02:
I'm certainly saying it doesn't apply in this case.

[00:04:23] Speaker 02:
I believe across the board that that would be the case because of the VA's own regulation and not only the regulation at 3.160 but the regulation that requires notice to the veteran and his representative

[00:04:38] Speaker 02:
of their disposition of the claim.

[00:04:42] Speaker 03:
But aren't those requirements also equally applicable to informal claims?

[00:04:47] Speaker 02:
No, they're not, Your Honor, because an informal claim may or may not be adjudicated.

[00:04:53] Speaker 02:
It is a discretionary determination based upon the adjudicator to determine whether or not the evidence does or does not raise that claim.

[00:05:01] Speaker 02:
The critical distinction here is that in 1974, Mr. Cogburn used the VA form 21-526 to ask for service connection for the only psychiatric condition that he was diagnosed with, which was depressive neurosis.

[00:05:17] Speaker 02:
Yes, I'm sorry.

[00:05:18] Speaker 03:
No, that's fine.

[00:05:19] Speaker 03:
Even if the VA's decision then

[00:05:24] Speaker 03:
on the other claim can be very clearly read as implicitly denying the other formal claim

[00:05:34] Speaker 03:
As long as they don't provide a specific notice that this other claim has been denied, the implicit denial rule can't apply here.

[00:05:43] Speaker 02:
I believe that is the correct interpretation that this court should arrive at based upon the VA's regulations which are in place which treat a formal claim

[00:05:54] Speaker 02:
differently than they treat an informal claim.

[00:05:57] Speaker 02:
An informal claim is treated by the VA under 3.155 currently and presumes that that claim will be formalized.

[00:06:06] Speaker 03:
But isn't, I mean, I get your argument, that's a reasonable distinction, but isn't the point of the implicit denial rule is basically it's a notice provision so that the veterans have noticed that their claim has been denied so that they can appeal.

[00:06:21] Speaker 03:
And so it's reasonably certain

[00:06:24] Speaker 03:
from the decision that that claim has been denied, what difference does it make whether it's formal or informal?

[00:06:31] Speaker 03:
As long as you can reasonably infer notice from the decision.

[00:06:36] Speaker 02:
But the problem with that notice is that it assumes that there is a remedy vis-a-vis appeal.

[00:06:41] Speaker 02:
There is in this case no remedy available because the appeal took place prior to judicial review.

[00:06:47] Speaker 02:
The Board of Veterans Appeals decision in this case was in 1985.

[00:06:50] Speaker 02:
There would have been no appeal from that decision.

[00:06:54] Speaker 02:
Had he believed that they, in fact, if he thought he was on reasonable notice that his depressive disorder claim had been denied, he had no ability to appeal that.

[00:07:04] Speaker 02:
That was the end of the discussion.

[00:07:06] Speaker 02:
procedurally in 1985.

[00:07:08] Speaker 02:
It was not until 1988 that judicial review was created.

[00:07:13] Speaker 03:
So I don't understand why that makes any difference.

[00:07:16] Speaker 03:
So if, in fact, this 85 decision had explicitly denied this formal claim, we wouldn't be arguing about an implicit denial rule.

[00:07:27] Speaker 03:
You wouldn't be here at all because there would be no appeal rights.

[00:07:29] Speaker 01:
That's correct.

[00:07:30] Speaker 03:
I don't know why that makes any difference about whether the implicit denial rule is at bottom in notice provision.

[00:07:36] Speaker 02:
Well, I'm sorry, I was trying to respond to that portion of your question that dealt with the creation, the purpose of the creation of the rule was to deal with notice and that the veteran was not on notice, that his depressive neurosis claim had been denied because in the first place there was never a decision from 1974 until arguably 1985

[00:07:59] Speaker 02:
where we disagreed that there was any decision, because if you look at this, at the board decision in 1985, clearly there is a acknowledgement that he had a diagnosis of depressive neurosis and schizophrenia, but there was never any discussion about whether those claims were pending.

[00:08:17] Speaker 02:
that those claims were being decided.

[00:08:19] Speaker 02:
The issue was determined.

[00:08:20] Speaker 03:
Sure, but I think you're starting to veer into a little bit of at least application of law to fact when you're arguing about what the content of the 85 notice is.

[00:08:28] Speaker 03:
Didn't the Veterans Court find that fact-supported application of the implicit denial rule here?

[00:08:34] Speaker 02:
The court did.

[00:08:36] Speaker 02:
And we can't review that.

[00:08:37] Speaker 02:
Well, yeah, I believe you.

[00:08:38] Speaker 03:
And we can review your legal conclusion or legal argument that the implicit denial rule should never apply to formal claims.

[00:08:46] Speaker 03:
That seems to be a politically good legal argument.

[00:08:49] Speaker 03:
But whether the board properly found, as a matter of fact, that it was implicitly denied here seems a step too far.

[00:08:57] Speaker 02:
I'm not sure that's correct, John.

[00:08:58] Speaker 02:
I believe under this case, this court's decision in Morgan, that is not a step too far.

[00:09:03] Speaker 02:
Morgan says that when Congress changed

[00:09:06] Speaker 02:
the 72-92 to include rule of law jurisdiction, that you do in fact have the jurisdiction to review.

[00:09:15] Speaker 03:
We have jurisdiction to review what the rule of law is, but not how it should be applied in a particular case.

[00:09:22] Speaker 02:
With respect, I disagree.

[00:09:23] Speaker 02:
I believe that this court in... I'm sorry, I'm blanking on the name of it.

[00:09:30] Speaker 02:
Oh, Willsley.

[00:09:31] Speaker 02:
In Willsley specifically said

[00:09:33] Speaker 02:
that this court had jurisdiction to review whether or not a issue of how the clear and unmistakable error rules were applied was in fact reviewable.

[00:09:48] Speaker 02:
They found that

[00:09:49] Speaker 02:
They had jurisdiction to do that.

[00:09:51] Speaker 02:
They affirmed the decision below based upon the determination that was made by the lower court.

[00:09:57] Speaker 02:
But I believe under Willsley, as it interpreted Morgan, that this court does have that jurisdiction to interpret the rule of law of implicit denial as it was applied.

[00:10:09] Speaker 01:
Mr. Chairman, can I bring you back to the issue as to whether there's a difference between formal and informal claims?

[00:10:16] Speaker 01:
What is the regulation that you're relying on

[00:10:19] Speaker 01:
that you say makes that distinction, and where do I find it in your brief?

[00:10:23] Speaker 02:
It is not in our brief.

[00:10:24] Speaker 02:
It is in the Adams case.

[00:10:26] Speaker 02:
It's in the Adams case and the regulations cited.

[00:10:29] Speaker 01:
Where is it in the Adams case?

[00:10:31] Speaker 01:
I don't know why it's not in your brief, if that's a lynchpin of your argument, but we'll pass that.

[00:10:37] Speaker 01:
Where is it in the Adams case?

[00:10:39] Speaker 02:
I'm sorry.

[00:10:40] Speaker 02:
I didn't bring the Adams case with me, but it is just read it last night.

[00:10:46] Speaker 02:
It starts a paragraph and specifically refers to the regulation at 38 CFR 3.160 and describes specifically what a pending claim means.

[00:10:59] Speaker 02:
And a pending claim as defined by the VA regulation is a claim which has yet to be adjudicated.

[00:11:07] Speaker 02:
And the formal claim is a claim, in this case, that has yet to be adjudicated.

[00:11:14] Speaker 02:
The VA had several opportunities to adjudicate the claim that was filed in 1974 and they did not as it related to the diagnosis that existed in the record at the time that the 1974 claim was made of depressive neurosis.

[00:11:30] Speaker 02:
The only claim that was adjudicated by the board in 1985 and in fact decided by... 3.160C is what you're talking about.

[00:11:43] Speaker 01:
And Adam says on page 960, a claim for benefits, whether formal or informal, remains pending until it's finally adjudicated and then excites that regulation.

[00:11:52] Speaker 01:
How does that help you?

[00:11:54] Speaker 02:
Because I'm suggesting to this court that this court used

[00:11:58] Speaker 02:
the context of informal claim imprecisely as opposed to the regulation that applies only to formal claims.

[00:12:09] Speaker 02:
3.160C does not apply to informal claims.

[00:12:12] Speaker 02:
Adams was wrong when it said so?

[00:12:15] Speaker 02:
Adams was wrong to the extent that it included informal claims as a reference to 3.160C.

[00:12:23] Speaker 02:
there is no requirement to adjudicate an informal claim until that informal claim is in fact adjudicated by the VA.

[00:12:31] Speaker 02:
That is within the discretion of the adjudicator.

[00:12:35] Speaker 02:
3.160 and the notice requirements that we do rely on in 3.103 do require notice to the veteran when the VA takes action.

[00:12:48] Speaker 02:
And there has never been any notice to Mr. Cogburn, in this case, that the decision was made in this 1974 client.

[00:12:55] Speaker 02:
Yes, Judge?

[00:12:56] Speaker 02:
Yes?

[00:12:56] Speaker 02:
No.

[00:12:57] Speaker 02:
Oh, I'm sorry.

[00:12:57] Speaker 02:
I thought you were about to ask me a question.

[00:12:59] Speaker 00:
We're into your thoughts, so why don't we hear from you?

[00:13:01] Speaker 02:
I will reserve.

[00:13:01] Speaker 02:
Thank you very much, Your Honor.

[00:13:14] Speaker 04:
Good morning.

[00:13:14] Speaker 04:
And may it please the court?

[00:13:15] Speaker 04:
I wanted to first just address the arguments that counsel has just made that the implicit denial rule shouldn't apply to informal claims.

[00:13:24] Speaker 04:
I first note that I don't believe he's made that argument in his briefs, so the court shouldn't consider it.

[00:13:30] Speaker 04:
But in any event, I would quote from this court's decision in Monroe, which is a 2010 case.

[00:13:35] Speaker 04:
This court said, quote, with regard to Monroe's contention that the implicit denial rule

[00:13:41] Speaker 04:
cannot apply to informal claims only to formal claims, we see no proper basis to distinguish between formal and informal claims.

[00:13:49] Speaker 04:
So this court's already addressed that issue and has held that there really is no reason to distinguish between the two.

[00:13:54] Speaker 03:
And we applied it in a case where there's a formal claim?

[00:13:57] Speaker 03:
Because the one you just said suggested it was a

[00:14:00] Speaker 03:
It's an informal claim, so maybe it's dicta as to formal claims.

[00:14:04] Speaker 04:
I believe in Deschotel the claims were both formal claims.

[00:14:07] Speaker 04:
I'm not 100% sure on that.

[00:14:09] Speaker 04:
I'd have to go back and check, but I believe in that case they were.

[00:14:15] Speaker 04:
Now, Mr. Cogburn contends that no reasonable person could have understood that their claim was being denied here.

[00:14:24] Speaker 04:
Of course, that argument is outside this court's jurisdiction.

[00:14:28] Speaker 04:
In the Jones case, this court explained that whether the later board decision addressed the merits of the original claim would seem to be a factual issue.

[00:14:37] Speaker 04:
That's beyond the scope of this court.

[00:14:39] Speaker 03:
What about this rule of law jurisdiction?

[00:14:42] Speaker 03:
I mean, I assume we didn't actually consider that principle there.

[00:14:45] Speaker 03:
It's a little fuzzy to me what this rule of law jurisdiction is, but I think we have said, at least in some cases, that

[00:14:52] Speaker 03:
It allows us to review certain applications of law of facts.

[00:14:56] Speaker 04:
Well, the court certainly has jurisdiction to consider whether the correct rule of law was used in a given case.

[00:15:04] Speaker 04:
So here, for example, the court can look at whether or not, in fact, the correct rule of law, that is the implicit denial rule, was used.

[00:15:12] Speaker 04:
But the court doesn't have jurisdiction to consider the actual application of that rule of law to the facts of the specific case.

[00:15:18] Speaker 03:
So at least for purposes of this case, I think you would concede that we have jurisdiction to decide whether the implicit denial rule properly applies to formal claims.

[00:15:29] Speaker 03:
But once we, if we conclude that it does, then we can't review whether there was

[00:15:34] Speaker 03:
notice under the 85 decision.

[00:15:36] Speaker 04:
Right, yes, that's right.

[00:15:38] Speaker 04:
Certainly this court has jurisdiction to consider whether or not the correct legal standard was applied in this case.

[00:15:44] Speaker 04:
Now obviously that standard here was applied, the reasonable person standard, the standard this court applied in Adams.

[00:15:51] Speaker 04:
That's the exact same standard that the Veterans Court and the board applied in this case.

[00:15:57] Speaker 03:
Can I ask you, I know this isn't really raised, but what's the origin for this implicit denial rule?

[00:16:01] Speaker 03:
Because although in

[00:16:03] Speaker 03:
normal litigation it might seem to make sense in the context of veterans benefits who are often pursuing these claims in an unrepresented pro se fashion.

[00:16:13] Speaker 03:
I mean to expect them to read a board decision which is a fairly technical document

[00:16:19] Speaker 03:
and determine that, well, even though it's only specifically addressing this claim, it's also implicitly addressing this other claim and putting them on notice to appeal if they have to at risk of losing the right to appeal.

[00:16:32] Speaker 03:
It seems kind of a difficult doctrine to apply.

[00:16:36] Speaker 04:
Well, what this court in Adams said is that the implicit denial rule is really a balance.

[00:16:42] Speaker 04:
And it's a balance between the interests of finality, which is an interest that obviously supports veterans,

[00:16:48] Speaker 04:
and the interest in providing notice.

[00:16:51] Speaker 04:
So it's a balance between the two.

[00:16:54] Speaker 04:
And the test that's applied, again, a reasonable person test, and it reflects that appropriate balance.

[00:17:00] Speaker 04:
Now, Mr. Convern.

[00:17:02] Speaker 00:
But it's a difficult situation, right?

[00:17:03] Speaker 00:
Because by definition, if you've got an implicit denial, then you've got no analysis, no rationale, no basis upon which one can assume, yeah, they must have rejected my claim, even though they didn't speak to it.

[00:17:16] Speaker 00:
But one has no basis to determine

[00:17:19] Speaker 00:
What was wrong with it?

[00:17:21] Speaker 04:
Well, but the tests or the factors that this court used and Adams and the Veterans Court used here go to that issue.

[00:17:29] Speaker 04:
One of the factors is that we look to the RO and the board decisions themselves.

[00:17:34] Speaker 04:
Would they put a reasonable person on notice that their claim was being denied?

[00:17:38] Speaker 04:
Here, I'll briefly discuss the facts.

[00:17:41] Speaker 04:
But here, both the RO and the board decisions did that.

[00:17:45] Speaker 04:
The board stated that the service medical records here

[00:17:48] Speaker 04:
were negative for any evidence of psychological impairment, not just for PTSD, but for any psychological impairment.

[00:17:57] Speaker 04:
And, of course, the claims that he's raising here are not just obviously PTSD, but a claim for depressive neurosis and schizophrenia.

[00:18:06] Speaker 04:
The board and the RO here also listed the relevant medical records and expressly discussed his various diagnoses, including his diagnosis for schizophrenia and depressive neurosis.

[00:18:18] Speaker 04:
So those facts support that a reasonable person would understand that all of their claims, in fact, were being denied.

[00:18:26] Speaker 04:
Now, Mr. Cogburn argues that, or seems to argue that, the implicit denial rule shouldn't apply because his claims were different.

[00:18:37] Speaker 04:
But that's precisely what the rule

[00:18:41] Speaker 04:
is designed to address.

[00:18:43] Speaker 04:
And in Adams and Deshotel, two cases from this court, both of those cases involved different claims.

[00:18:49] Speaker 04:
For example, in Adams, the claim that was expressly denied was a claim for rheumatic heart condition.

[00:18:55] Speaker 04:
The claim that was implicitly denied was a claim for bacterial endocarditis.

[00:19:00] Speaker 04:
So different conditions or claims.

[00:19:04] Speaker 04:
Now finally, Mr. Coughburn argues that the VA was required to weigh and assess the nature of his conditions.

[00:19:10] Speaker 04:
He cites a case from the Veterans Court Clemens for that proposition.

[00:19:15] Speaker 04:
Of course, that decision didn't concern the implicit denial rule.

[00:19:19] Speaker 04:
And here, as I said, the RO and the board did, in fact, weigh and consider the various conditions at issue.

[00:19:25] Speaker 04:
And moreover, that really is a cue claim, an argument that the board or the RO failed to weigh.

[00:19:31] Speaker 04:
his different conditions.

[00:19:34] Speaker 04:
That would be a claim of clear and unmistakable error in that decision and also wouldn't be within this Court's jurisdiction to entertain.

[00:19:45] Speaker 04:
So for these reasons, we respect the request that the Court dismiss Mr. Cogburn's claim regarding whether or not a reasonable person could have understood that the claim was being denied and affirm the Veterans Court's decision in all other respects.

[00:20:00] Speaker 04:
Thank you.

[00:20:13] Speaker 02:
Your Honor, the court below held that Mr. Cogburn could not show that the implicit denial rule is not for application with respect to one claim, in this case, his depressive neurosis, because a decision only explicitly denied another claim, that was post-traumatic stress disorder, to permit Mr. Cogburn to do that, the lower court said, would nullify the implicit denial rule.

[00:20:39] Speaker 02:
Well, that's precisely what we're asking this court to do as it relates to recognized distinguished claims.

[00:20:48] Speaker 02:
The distinction here is both between formal and informal, but also under Boggs and Efrain between depressive neurosis and post-traumatic stress disorder.

[00:20:58] Speaker 02:
This court in Efrain dealt directly with the question of whether or not depression

[00:21:02] Speaker 02:
with the same disability as post-traumatic stress disorder, which was later diagnosed.

[00:21:07] Speaker 00:
But that case said nothing about implicit denial.

[00:21:10] Speaker 02:
That didn't... No, Your Honor, but it recognized the difference between claims and what is... I'm sorry.

[00:21:18] Speaker 03:
Even if we recognize that there are two distinct claims,

[00:21:21] Speaker 03:
If the board can conclude that they're so interrelated that denial of one would give notice of denial of the other, the fact that they're two distinct claims shouldn't prohibit application of the Implicit Denial Rule.

[00:21:36] Speaker 02:
Well, with respect, Your Honor, that's precisely the basis upon which this Court rejected the Veterans Court's analysis in both Efrain and in law.

[00:21:45] Speaker 02:
The Veterans Court relied on that same analysis that these conditions had overlapping symptomatology.

[00:21:51] Speaker 02:
And therefore, you should give the benefit, if you will, to the agency.

[00:21:56] Speaker 02:
The benefit in this case should be given to the veteran.

[00:21:59] Speaker 01:
And one of the reasons is that in this case... What you're asking us to do, it seems to me, is to completely eliminate the implicit denial rule, at least with respect to formal claims.

[00:22:08] Speaker 01:
And I think the government is right that in Deschottel or Deshottel or

[00:22:14] Speaker 01:
However you want to pronounce it, there were two formal claims.

[00:22:18] Speaker 01:
That's what we said.

[00:22:20] Speaker 02:
I'm sorry, Your Honor.

[00:22:21] Speaker 02:
There were formal claims made, but not for the condition that was asserted to still be pending.

[00:22:28] Speaker 02:
The condition that was asserted to be pending.

[00:22:30] Speaker 01:
I think that's not correct.

[00:22:31] Speaker 02:
The condition in Des Hotel was for a psychiatric disability that came out of the automobile accident.

[00:22:39] Speaker 02:
There was a claim for the injuries related to the automobile accident.

[00:22:42] Speaker 01:
He said the claim should be construed to cover both the psychiatric disability and the other thing.

[00:22:47] Speaker 02:
And the should be construed is what makes it an informal claim for the psychiatric condition.

[00:22:52] Speaker 02:
No one was asking in Des Hotel for the re-adjudication of the claims that were decided in the first instance.

[00:23:00] Speaker 02:
is important in this case is to recognize that Mr. Cogburn has an opportunity, if allowed, to pursue the adjudication of his unadjudicated claim.

[00:23:13] Speaker 02:
And that would require the VA to consider all of the evidence.

[00:23:17] Speaker 02:
At no time did the VA ever consider Mr. Deshotel's decision.

[00:23:23] Speaker 02:
If it remains pending, as we assert that it does, and apparently if you apply the implicit denial rule, you can't reject that it remains pending.

[00:23:32] Speaker 02:
The only question is, was there an adjudication?

[00:23:35] Speaker 02:
And under both Boggs and Efrain, there cannot have been an adjudication.

[00:23:39] Speaker 02:
unless the Board of Veterans Appeals decision in 1985 addressed that decision, which it did not.

[00:23:46] Speaker 00:
Thank you very much, Your Honors.

[00:23:47] Speaker 00:
We thank both counsel and the cases.