ptsd Munro V. Shinseki – Fed. Cir. Addresses Implicit Denial Rule

[drohde]

The U.S. Court of Appeals for the Federal Circuit (“Fed. Cir.”) recently issued a precedental decision that involved the application of the “implicit denial rule.” Generally, when a veteran files either a formal or informal claim, the claim is pending until it is 1) finally adjudicated, and 2) the veteran is notified of the denial. There are circumstances, however, where a claim is “deemed” to have been denied and finally adjudicated even if VA did not explicitly address that claim in the denial – this is the implicit denial rule.

In Munro, the veteran argued that the implicit denial rule could not appeal to informal claims. However, the Fed. Cir. held that the rule can be applied to end any pending claim whether formal or informal. In determining whether the implicit denial rule should apply to Munro, the Fed. Cir. relied heavily on its prior consideration of the rule, particularly in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In Deshotel, the Fed. Cir. held that where a veteran files closely related claims and VA explicitly denies only one of these claims, the implicit denial rule should be applied to treat the other closely-related claims as also denied. The Fed. Cir. also reviewed other cases to conclude that the implicit denial rule requires that the denial of a claim will end the pending status of any other identical pending claims. The Fed. Cir. found that Mr. Munro’s informal claims were identical to the formal claim that VA later denied, so the implicit denial rule applied here and his informal claims were deemed to be denied. It also found that from the specifics in VA’s denial, Mr. Munro should have known that his informal claim was also being denied, as the documents he submitted as the informal claims were referenced in the decision.

The documents Mr. Munro asserted were informal claims consisted of VA medical records. The Fed. Cir. noted that veterans with service-connected conditions routinely visit VA medical centers and for VA to treat each medical record as an individual claim would be unnecessary and unreasonable.

While the Munro decision was not favorable to the veteran, it can provide some guidance for others. First, be as specific as possible when submitting a claim to VA. Rather than just sending in some medical records and later trying to sort out the nature of the claim, explain your claim and what the records show upfront. (For instance, stating something like, “This is my informal claim for an increased rating for my service-connected PTSD. The attached VA treatment records show that my condition has become more severe.”).

Also, if you receive a denial from VA that you do not agree with or understand, let them know about it immediately. Mr. Munro faced additional burdens because he did not timely appeal denials and they became final decisions. If you are not satisfied with your decision from VA, keep appealing and keep the claim alive.

[john999]

I say too that if your VCAA letter does not mention all your claims the ones they don't mention may have fallen through the cracks. You should still appeal them if you get any decision that does not address them. The VCAA letter is supposed to be your specific roadmap to winning all your claims. The implicity denial regulation is just a cheap trick by the VA. If you file ten claims and the VA does not grant all ten consider the ones that are not mentioned as denied and file a NOD on all the conditions you claimed.

[JamesBreckenridge]

I say too that if your VCAA letter does not mention all your claims the ones they don't mention may have fallen through the cracks. You should still appeal them if you get any decision that does not address them. The VCAA letter is supposed to be your specific roadmap to winning all your claims. The implicity denial regulation is just a cheap trick by the VA. If you file ten claims and the VA does not grant all ten consider the ones that are not mentioned as denied and file a NOD on all the conditions you claimed.

And for some counterpoint from the other side of process, this is very good thing. If a veteran claims essentially the same thing a bunch of different ways at different times, it creates an enormous burden on us... especially when we have VSRs who take every single medical condition as a seperate claim. Many times I have to clean up the mess on my ratings by saying something like "We received your claim for peripheral neuropathy, right arm (also claimed as numbness, tingling, pins and needles, and right arm pain) on such and such date..." But we've got VSRs who WILL seperately VCAA every single even vaguely medical issue found in a veteran's statement in support of claim or medical records release form. The 4142 is a personal pet peeve of mine; we ask the vet where he's treated for his s/c condition or the condition he's seeking s/c for, and we ask what conditions that doctor treats him for, and the vet helpfully tells us about every single condition that Dr. Jones sees him for... and even if the vet isn't claiming any of them, a bunch of the time, the VSRs (fearing a quality error called against them) will VCAA every single one of those issues. It can turn a simple claim for an knee into a thirteen issue dog case.

And another thing. If a veteran keeps writing in with claims, it invariably screws the process up. In a perfect world (and the world that the system is designed for), we get a single claim consisting of some number of issues. We VCAA those issues, ask for whatever private treatment records from the vet's doctors, collect our own records from the VA hospitals, look at the service medical records, ask for any exams or medical opinions that are necessary, and rate the case when the exams/opinions come back. In the real world, in which developing for evidence takes longer than it should, the veteran starts filing additional claims after the first, and the VSR has to take the file back and VCAA the newly claimed issues, the evidence gathering process has to start all over again, the medical records have to be reviewed for the newly claimed conditions, exams and opinions requested... It slows things down incredibly, and it allows errors to creep in; potential for missed claims, missed evidence, etc.

We are our own worst enemy when it comes the system that we designed. However, there is a certain responsibility on the veteran to clearly claim concrete conditions with specificity and completeness.

The stories I could tell you about how the veteran, not our process, has jacked up his own claim file... I've got files on my desk right now that aren't even the real claim file, they're "temp folders" because after we sent the vet's file to the Board of Veterans Appeals, he came in for something ELSE completely new. Or they file new claims while they have appeals pending, or they try and claim issues that are already on appeal... it's a mess. But this isn't the right forum.

So yeah, this is actually a good thing, or the bureaucratic paperwork machine would stop altogether.

[rthomass]

Mr. Breckinridge I know I will get in trouble with a moderator but are you actually trying to tell us that VA Claims system was designed ? I assumed it evolved some what like Darwin's theory of evolution. I can not see the system as anything but an evolution and and as such we all should build an ARK as Jonah did and wait until the BS recedes!

[JamesBreckenridge]

Mr. Breckinridge I know I will get in trouble with a moderator but are you actually trying to tell us that VA Claims system was designed ? I assumed it evolved some what like Darwin's theory of evolution. I can not see the system as anything but an evolution and and as such we all should build an ARK as Jonah did and wait until the BS recedes!

Hah! That's not a bad description. I'm sure the system was fairly intelligently designed to deal with the needs of the time... but as time passed, veterans needs changed, and politicians and lawyers and judges started throwing more and more requirements at the system, which tried to accommodate them, until it became what we see today.

[Chuck75]

How can the "implicit" denied claims be dealt with when the VCAA notice does not mention them, or it does not contain enough information to determine the actual basis of the denial. What happens when the VCAA notice cites reasons for denial that have no basis in Law?

Since such problems and Diabetes II and Heart disease ARE medically related, how can the VA fail to connect them? The fundamental problem with an "implicit" denial is that it highlights another current non mentioned corollary. In all equity, an "implicit" approval should exist for conditions that are related to an awarded condition.

Perhaps this alone illustrates the VA's one sided approach. (Award what you must, deny everything else, even if it's within the "at least as likely than not" category.)

[carlie]

In my opinion, the VCAA started out as a good thing - to help claimants.

But now, almost 10 years later - it's turned out to be a big noose around the neck of many.

It's a shame that when a claimant finally gets an appeal certified to the BVA and a docket number

then one or two year's later they receive their BVA decision, which turns out to be remanded back

to the VARO because no VCAA letter of record,had been sent to the claimant.

JMHO