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Veterans – Beware of the “Implicit Denial Rule” in VA Claims!

Earlier this year, a federal appeals court issued a ruling that could impact unknowing veterans who filed claims at different times when the Department of Veterans Affairs (VA) only decides some of the claims in a written decision.  In Cogburn v. McDonald, 809 F.3d 1232 (Fed. Cir. 2016), the court decided an appeal involving a veteran that had filed multiple claims at different times in the past.  One claim – filed in the 1970’s – was an informal claim that never seemed to have been decided by the VA.  A later claim – in the 1980’s – was decided.  The problem for the veteran is that the VA argued that it also decided the 1970’s claim, because it covered the same issues, and it refused to go back and consider the 1970’s claim.

The veteran argued to the VA, the Board of Veterans Appeals, and the Court of Veterans Claims that the 1970’s claim could not have been decided, because VA never issued a decision letter covering that claim.   The vet lost all the way up the chain.  He finally appealed to the Federal Circuit Court, and unfortunately, that court held that the VA was right!  It concluded that because the VA’s written decision in the 1980’s covered the older issues too, even though it did not specifically say so, the veteran should have known that all of the issues were decided in that letter.

The Cogburn court’s decision was based on a rule of law called “the implicit denial rule.”  Under that rule, 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.”  The court basically held that because the VA decided the same kind of claim in the 1980’s, the decision also applied to the 1970’s claim.  It ruled that the veteran was on notice, because the VA’s decision covered such a similar topic, that it was clear to any reasonable person that the VA’s action which expressly referred to one claim was intended to dispose of the earlier claim also.

In other words, “the implicit denial rule may apply…when the Board’s decision makes it clear to a reasonable person that the pending claim have been denied.”  This means any pending claims – even ones that are not specifically mentioned in a decision letter – as long as the letter covers the topic of the claim that is not mentioned.

Talk about a trap for veterans!  Many veterans have multiple claims pending.  You will now have to very carefully read every letter the VA sends you to make sure that VA is not incorporating another claim or issue in the letter without specifically mentioning that other claim or issue.

As usual with the VA – Beware!  Document everything in writing and send letters by certified mail, return receipt requested….and never, ever, accept what the VA writes to you at face value.

John V. Tucker is a Disability Attorney who represents veterans in VA service connected compensation claims.  If your VA disability compensation claim has been denied, call (866) 282-5260 for a free consultation about your appeal rights.

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