Cogburn V. Principi

[deltaj]

This is a very interesting case at the U.S. Court of Veterans Appeals which was decided December 13, 2010 that concerned a veteran's claim pending since 1974. The citation is 08-1561 Dennis Cogburn v. Eric Shinseki. Many of us here at hadit know that V.A. has something called the implicit denial doctrine. This doctrine is difficult to explain but if a veteran files two claims simultaneously or close to each other this allows V.A. to deny one of those claims without addressing the other in a denial. In the above cited case an attorney got his client's case remanded because BVA had failed to discuss the implicit denial doctrine. The case was sent to a panel to address an issue of first impression, which is whether application of the implicit denial doctrine violated the appellant's due process right to notice of V.A.'s decision and appellate process. The attorney for the appellant argued that this veteran has had a pending unadjudicated claim since 1974. That attorney nailed V.A. for a failure to discuss the fact that this veteran's schizophrenia was incurred in or aggravated by active military service or within one year of active military service. (Although the case didn't mention 38 CFR 3.309, it would be reasonable to infer that the court considered this regulation as it pertained to psychoses incurred or aggravated by military service or within the one year period after military service since this veteran was discharged from active miltary service in November 1974 and was hospitalized for schizophrenia in October 1975 at a civilian hospital for schizophrenia during the one year period for psychosis.) This veteran had made a claim in 1974 and was denied. His application had the words pension and compensation both underlined. (The court also didn't mention another V.A. regulation that existed which stated a claim for pension is also a claim for compensation and the higher benefit will be granted; I have personally seen this regulation in 38 CFR a long time ago at a law library when I reviewing regulations from the 1960s onward.) The attorney got the Board's decision vacated and the case was remanded, possibly for consideration of whether the 1974 claim was still pending.

[broncovet]

Delta

Interesting and significant. I have always beleived the "implicit denial rule" flys in the face of 38 CFR 3.103 which states in pertinent part:

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.<br style=margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; "><br style="margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; ">Read more: http://cfr.vlex.com/...1#ixzz1Mvme2n00

Edited May 20, 2011 by broncovet