DENNIS W. COGBURN, Claimant-Appellant
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 12-3323, Judge Lawrence B. Hagel.
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.
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.
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 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 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 ...