[00:00:00] Speaker 01:
The first case for argument this morning is 23-2049, Steele versus Collins.

[00:00:07] Speaker 01:
Welcome, Mr. Carpenter.

[00:00:08] Speaker 01:
Good morning.

[00:00:19] Speaker 04:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Steele.

[00:00:24] Speaker 04:
This appeal turns on the interpretation

[00:00:27] Speaker 04:
of 38 CFR 3.103 F. And what role, if any, this court's implicit denial rule has when VA's notice is not compliant with VA's regulation concerning the requirements for the content of notice?

[00:00:46] Speaker 01:
Sorry?

[00:00:49] Speaker 01:
the regulation here.

[00:00:50] Speaker 01:
We're talking about the 1984 regulation.

[00:00:53] Speaker 01:
Is this the same regulation that was in rule?

[00:00:56] Speaker 04:
Yes.

[00:00:56] Speaker 04:
Only it's the 1991 version, and they added an F subsection.

[00:01:02] Speaker 04:
And it's now, or it was then, under F, not in.

[00:01:05] Speaker 01:
But the content is the same.

[00:01:06] Speaker 04:
Content is identical.

[00:01:08] Speaker 01:
OK.

[00:01:08] Speaker 01:
So which it seems to notice will include the reason for the decision, the date it will be effectuated, as well as the right to a hearing.

[00:01:18] Speaker 01:
right to initiate an appeal.

[00:01:20] Speaker 01:
What aspect of this notice requirement do you say they failed?

[00:01:25] Speaker 04:
Well, the notice requirement requires, under this court's interpretation and rule, and based upon the plain language used in the regulation, that the notice include an explicit denial and provide the reasons for the decision.

[00:01:43] Speaker 04:
And the reasons for the decision are what are absent in this case, along with, as in rule, the absence of any explicit denial of the claim.

[00:01:56] Speaker 01:
So under the analysis, and this is hard for me, this is a genuine question, which is, what is the difference in your view, if any,

[00:02:05] Speaker 01:
between the notice requirements under an implicit denial and the notice requirements under an explicit denial.

[00:02:12] Speaker 01:
Because cases seem to suggest that they're different, but on the other hand, the cases seem to suggest they're the same.

[00:02:21] Speaker 04:
Well, I feel a bit pretentious trying to explain to this court a little of law, but I'll go ahead and try.

[00:02:28] Speaker 04:
As I understand the implicit denial rule, it deals with a circumstance in which there isn't an addressing in the notice.

[00:02:41] Speaker 04:
In the Des Hotel case, as well as in the Adams case, neither of those decisions, which sort of are the

[00:02:50] Speaker 04:
underpinnings for the implicit denial rule addressed the regulatory notice requirement.

[00:02:58] Speaker 04:
It's not until some 10 years thereafter in rule that this court recognized that there is a regulatory provision that directly speaks to that condition.

[00:03:10] Speaker 04:
And I'm not suggesting that the implicit denial rule is in conflict with that, but simply that

[00:03:18] Speaker 04:
The regulation requires certain information to be conveyed to the veteran and his representative.

[00:03:27] Speaker 04:
And when it is not, then this court has held as a matter of law that that notice is defective and does not terminate the appeal.

[00:03:40] Speaker 04:
And new notice is required in order for the veteran to be able to take

[00:03:46] Speaker 04:
the appeal that they would have been able to take had they been in this case explicitly told that their migraine headaches, their headaches were being denied.

[00:03:56] Speaker 01:
Well, I mean, but doesn't this get you into fact law land?

[00:04:02] Speaker 01:
I do not believe so.

[00:04:04] Speaker 01:
We can all read the notice, what she was told.

[00:04:08] Speaker 01:
And if there's an argument that, yes, the notice covered the lack, I forget the exact words, but the lack of any residual other stuff, then we don't detect that.

[00:04:21] Speaker 01:
If one could argue that the CABC was correct, that that was a sufficient reason for him to recognize, then how do we undermine or dislodge that finding under our standard of review?

[00:04:36] Speaker 04:
Well, I believe this court is obligated to follow this court's interpretation of the regulation as made in rule.

[00:04:45] Speaker 04:
And rule said that as a matter of law, when notice does not contain the explicit requirements of the regulation, that notice is defective as a matter of law.

[00:04:57] Speaker 01:
That can't possibly be right, because that would mean that there's no such, there's no propriety in any implicit denial.

[00:05:06] Speaker 01:
If it has to be explicit, if it's an explicit denial, then it's not in the bucket of implicit denials, and that's well established in our case law.

[00:05:15] Speaker 04:
Well, but I believe in both DeSotel and in Adams, we were dealing with conditions that could have been interpreted as being part of the condition that was denied.

[00:05:28] Speaker 04:
And therefore, we're looking at some ambiguity, if you will,

[00:05:32] Speaker 04:
that exists in the notice.

[00:05:35] Speaker 04:
And this court has created this rule of law that says you can make a reasonable inference if there was in the mind of a reasonable claimant an understanding that this specific claim had been denied.

[00:05:50] Speaker 04:
That's not the case in rule and it is not the case here.

[00:05:56] Speaker 04:
the rating decision, specifically acknowledge that he was seeking compensation based upon having headaches.

[00:06:04] Speaker 01:
So are you challenging that this isn't, and again, this may not be your fault.

[00:06:08] Speaker 01:
Our cases are a little odd, because they were all dealing with different issues at different times.

[00:06:15] Speaker 01:
But so you're saying this wasn't an implicit denial.

[00:06:18] Speaker 01:
This was an explicit denial.

[00:06:22] Speaker 01:
This was an implicit denial, but it still had to meet the requirements of the regulation.

[00:06:27] Speaker 04:
It was an explicit denial.

[00:06:34] Speaker 04:
because it did not address the question of headaches.

[00:06:39] Speaker 04:
In the notice, there is nothing in the notice that says he was denied as in the notice at page 20.

[00:06:47] Speaker 01:
Wait.

[00:06:47] Speaker 01:
So did you mean to speak?

[00:06:48] Speaker 01:
Are you saying this is an implicit or an explicit deny?

[00:06:52] Speaker 04:
OK.

[00:06:52] Speaker 04:
I am saying that this is an explicit denial as provided in the notice.

[00:07:00] Speaker 04:
They explicitly told him that the evidence does not establish service connection for the following, for the limited motion for his left ankle and for his lower left ankle condition.

[00:07:14] Speaker 04:
That's an explicit denial.

[00:07:17] Speaker 04:
But what isn't in here and what was required is a denial of and notice of the fact that they were not going to provide him compensation for his migraine headaches, which years later the VA granted that benefit.

[00:07:38] Speaker 04:
And this appeal is a product of that decision, which is contesting the effective date based upon the fact that his original claim

[00:07:47] Speaker 04:
explicitly presented the question of headaches.

[00:07:52] Speaker 04:
The rating decision deals with headaches and makes the summary conclusion that

[00:08:06] Speaker 04:
They identified the issue as service connection for residuals of the head injury.

[00:08:11] Speaker 04:
And that's at Appendix 23.

[00:08:14] Speaker 04:
On the same page, the VA decision found that a review of the service record revealed that since July 17th, 23?

[00:08:33] Speaker 04:
and that after sustaining this head trauma, he lost consciousness.

[00:08:37] Speaker 04:
The veteran claimed only casual headaches as a residual, but these are not disabling.

[00:08:45] Speaker 04:
That's not in the notice.

[00:08:48] Speaker 04:
At no time was Mr. Steele put on notice that his headache claim had been denied.

[00:08:56] Speaker 01:
You cannot read...

[00:09:00] Speaker 01:
Appendix 24, it says service connection is granted for the scar, the only residual of the head injury and service, the scar.

[00:09:08] Speaker 01:
So it says, this is what you're claiming is a residual effect.

[00:09:13] Speaker 01:
We are concluding that the only residual effect that's compensable is the scar.

[00:09:21] Speaker 01:
In other words, not the headaches, not the other stuff.

[00:09:24] Speaker 04:
But Your Honor, that is an inference

[00:09:28] Speaker 04:
The whole purpose of the procedural due process.

[00:09:31] Speaker 01:
No, no, no.

[00:09:32] Speaker 01:
But let me stop you there.

[00:09:34] Speaker 01:
It's an inference, but that's what implicit denials are for, as to whether a reasonable person reading this would have understood that their claim for headaches and a bunch of other residuals were being compensated.

[00:09:47] Speaker 01:
And the answer is, would a reasonable?

[00:09:50] Speaker 01:
The question, do you agree that that's the question to be asked here?

[00:09:54] Speaker 04:
No.

[00:09:55] Speaker 04:
I believe that the question of implicit denial is what role, if any, it has when the notice is not consistent with the requirement.

[00:10:06] Speaker 04:
Accepting for a moment that you can make that inference.

[00:10:09] Speaker 04:
What is absent in this notice is any reason why.

[00:10:15] Speaker 04:
There is no reason why headaches were... That's why it's an implicit denial.

[00:10:20] Speaker 04:
That's correct, Your Honor.

[00:10:22] Speaker 04:
But the question then becomes the competition between a rule of law created by this court, which did not consider the regulatory due process requirements, and the regulatory due process requirements.

[00:10:36] Speaker 03:
You're not arguing that the implicit denial rule is unconstitutional or improper.

[00:10:45] Speaker 03:
No.

[00:10:46] Speaker 03:
So really, what

[00:10:50] Speaker 03:
to get into and be involved in, is the application of this rule to the facts of this case.

[00:10:59] Speaker 04:
You cannot do that.

[00:11:00] Speaker 04:
But I understand that, Your Honor.

[00:11:01] Speaker 04:
I'm very familiar with this court's limited jurisdiction.

[00:11:07] Speaker 04:
But notwithstanding that error of judgment by Congress.

[00:11:11] Speaker 02:
But it sounds to me like you're challenging the sufficiency of the notice.

[00:11:17] Speaker 04:
I am, Your Honor.

[00:11:18] Speaker 02:
And that's a question of fact.

[00:11:20] Speaker 04:
I disagree under this court's holding in rule.

[00:11:24] Speaker 04:
This court's holding did not.

[00:11:25] Speaker 02:
But rule was a bit of an unusual case.

[00:11:28] Speaker 02:
It was expressed denial under, shall we say, unusual circumstances.

[00:11:38] Speaker 02:
Isn't the case before us similar to what happened in Cogburn?

[00:11:45] Speaker 04:
No, it is not, your honor, and I'm very familiar with Cogburn.

[00:11:52] Speaker 02:
Tell me why it's dissimilar.

[00:11:54] Speaker 04:
Because in Cogburn, there was no direct challenge made to the

[00:12:03] Speaker 04:
requirement of the regulation versus implicit denial.

[00:12:07] Speaker 04:
The argument made in Cogburn was that you don't need to use the implicit denial because of the

[00:12:19] Speaker 04:
mandatory provisions of the regulation.

[00:12:23] Speaker 04:
And what's missing from the regulation is the reason for the decision.

[00:12:27] Speaker 04:
And that reason for the decision is absent from the notice at appendix 25 and 26.

[00:12:35] Speaker 04:
There is reference to scars.

[00:12:37] Speaker 04:
There is no reference to the... And the scars came from the head injury in different parts of the body.

[00:12:50] Speaker 04:
reason for the decision doesn't exist in the notice.

[00:12:56] Speaker 04:
And so I am asking this court to determine as a matter of law

[00:13:01] Speaker 04:
that there is a distinction between when implicit denial is to be used to clarify what Judge Prost was correctly observing that, quite candidly, this court's case law is all over the map in terms of implicit denial.

[00:13:17] Speaker 01:
I deny saying anything.

[00:13:18] Speaker 04:
Oh, excuse me, Your Honor.

[00:13:19] Speaker 04:
That was my paraphrase.

[00:13:22] Speaker 04:
I will take full responsibility and do.

[00:13:25] Speaker 02:
If we accept the fact that the implicit denial is in and of itself notice, then what you're challenging is the explicit notice of the claim that was considered in 1991.

[00:13:45] Speaker 04:
That's correct.

[00:13:46] Speaker 02:
But that means you're questioning

[00:13:50] Speaker 02:
the propriety of the actual notice itself, which seems to me to be a question of fact.

[00:13:55] Speaker 04:
Well, as I read this court's decision and rule, this court was quite clear that as a matter of law, to meet the requirements under 3.103e,

[00:14:13] Speaker 04:
An explicit denial must state or clearly identify in some other manner the claims being denied.

[00:14:21] Speaker 04:
The decision must meet the other requirements of that regulation, including the reasons for the decision.

[00:14:30] Speaker 02:
But that's a challenge to the notice.

[00:14:33] Speaker 03:
The rule cannot apply here because it deals with explicit rules.

[00:14:39] Speaker 03:
And that's not what we're dealing with in this case.

[00:14:41] Speaker 04:
Well, I believe we are, Your Honor, because of the opening sentence in the notice.

[00:14:46] Speaker 04:
We cannot grant your claim for payment of disability benefits.

[00:14:51] Speaker 04:
That covers his claim for disability benefits for his head injury.

[00:14:57] Speaker 04:
What is absent from this notice is any explanation as to the reason why.

[00:15:02] Speaker 04:
I don't dispute that that is in the rating decision, because they said it didn't constitute a disability.

[00:15:09] Speaker 04:
But had they given him his procedural due process rights as mandated by their own regulation, in this pro-veteran system, he would have had the opportunity to understand he needed to appeal that.

[00:15:22] Speaker 03:
Do you agree that rule is a case given with explicit denounce?

[00:15:29] Speaker 04:
Yes, yes.

[00:15:30] Speaker 01:
Okay, we're way beyond our time, so we'll restore some trouble.

[00:15:46] Speaker 00:
Good morning, may it please the court.

[00:15:47] Speaker 00:
Albert Iorossi on behalf of the United States.

[00:15:49] Speaker 00:
The court has it exactly right.

[00:15:51] Speaker 00:
The court does not have jurisdiction over the question that Mr. Steele is raising here.

[00:15:56] Speaker 00:
Because what he's asking you to do is investigate into the contents of the notice and decide, contrary to what the board and the Veterans Court did, that it's really inexplicable.

[00:16:07] Speaker 01:
Can I ask you about the questions of law, though?

[00:16:09] Speaker 00:
Yes.

[00:16:09] Speaker 01:
Whether they're presented or whether they're necessary to reach here.

[00:16:11] Speaker 01:
But let me ask you.

[00:16:14] Speaker 01:
I thought two different arguments, which may or may not be consistent.

[00:16:21] Speaker 01:
One, I think you were arguing that Cogburn and Adams, the rules for implicit denials, also carry with them the regulatory requirements of notice.

[00:16:31] Speaker 01:
And that the regulatory requirement of notice is also present in implicit denials.

[00:16:37] Speaker 01:
Is that your position or not your position?

[00:16:39] Speaker 00:
I think, to clarify, what this court has said is that when

[00:16:44] Speaker 00:
the veterans that the board or the veterans court concludes that there was an implicit denial that implicit denial is itself satisfaction of the VA's notice regulation because what ends up happening and this is a perfect example this case is a perfect example for that

[00:17:00] Speaker 00:
Mr. Steele on appendix page 17 submitted a claim for compensation for a head injury.

[00:17:06] Speaker 00:
And also two different side injuries and an elbow injury.

[00:17:10] Speaker 00:
But what he said was he's submitting a claim for a head injury.

[00:17:13] Speaker 00:
When he was examined in a physical examination on page appendix 21, the clinician noted that he had hit his head in 1980, and the only residual he has because of this head injury are occasional headaches, but they are not disabling.

[00:17:29] Speaker 00:
Then, in the oral decision from August 1991 on Appendix Page 23, the oral looked at it and said, on August 4, 1990, entry reveals he received a 4.5 centimeter superficial laceration to the parietal frontal region of the scalp, which was sutured.

[00:17:46] Speaker 00:
Initially, the veteran had some complaints about headache.

[00:17:48] Speaker 00:
There were no further complaints of headaches during service.

[00:17:52] Speaker 00:
And then the veteran claimed only occasional headaches as a residual, but these were not disabling.

[00:17:56] Speaker 00:
And at the bottom of page 24, the ALRA decision says, service connections granted for the scar of the scalp as the only residual of the head injury in service.

[00:18:04] Speaker 00:
So what happened here was he submitted a claim for a broad injury, the head injury.

[00:18:09] Speaker 00:
the both the clinician and they all looked into it said okay talked about headaches but they're not present anymore let alone disabling and they all determined that there is no service connection for any head injuries at all the only residual here was the scar and so based on that even though our decision to not say any claim that you may have presented for a headache is denied because all he said was he had a head injury the board and the Veterans Court properly concluded that

[00:18:38] Speaker 00:
That gave the claimant sufficient notice.

[00:18:42] Speaker 00:
that has had a claim to the extent they ever presented one, if it could be reasonably interpreted or reasonably read as presenting a claim.

[00:18:47] Speaker 01:
So your reading is for implicit.

[00:18:49] Speaker 01:
And I understand that.

[00:18:50] Speaker 01:
And some of it is because the cases, even though they purport to deal with either explicit or implicit denials, are all really different in terms of the background.

[00:18:58] Speaker 01:
So I appreciate your credit.

[00:19:00] Speaker 01:
But is your answer to my question that the regulatory requirements under that regulation, which I talked about in 1984 regulation, do not apply?

[00:19:11] Speaker 01:
to implicit denials?

[00:19:13] Speaker 01:
Because I thought somewhere in your brief you kind of said they do and that that's what we've said in Cogburn and Adams.

[00:19:20] Speaker 01:
I don't remember which one.

[00:19:21] Speaker 00:
I think the proper way to view it is that this court in Cogburn in 2016 said that the implicit denial rule does not violate a claimant's right to receive notice

[00:19:33] Speaker 00:
pursuant to the VA's due process regulation.

[00:19:35] Speaker 00:
And the reason for that is because when there is a decision, a denial, an explicit denial from the regional office, that explicit denial has obviously the details that are required by the regulation.

[00:19:49] Speaker 00:
And so it's not as if the VA could deny a claim from a veteran and simply say claim denied and with no other information at all.

[00:20:00] Speaker 00:
And what this court has said, and what the Veterans Court has said, is you have to look to the language of the actual decision.

[00:20:05] Speaker 00:
And is there enough in there?

[00:20:06] Speaker 01:
And you're talking about implicit denial.

[00:20:08] Speaker 00:
Right.

[00:20:09] Speaker 00:
So obviously, there has to be some denial.

[00:20:11] Speaker 00:
There has to be some written document.

[00:20:13] Speaker 00:
I don't want to confuse it by saying an explicit denial.

[00:20:15] Speaker 00:
There is a denial or decision from the regional office.

[00:20:19] Speaker 00:
That decision is going to provide information from the veteran.

[00:20:23] Speaker 00:
And so the decision that, excuse me, the details that are in that decision will inform

[00:20:29] Speaker 00:
the board and the Veterans Court whether a claimant was properly on notice that his related claim was denied.

[00:20:37] Speaker 03:
So the regulation, there has to be some sort of denial that the decision from the regional office.

[00:20:49] Speaker 00:
There's going to be a reason for the

[00:20:51] Speaker 00:
the claim that is the subject of the decision.

[00:20:53] Speaker 00:
But there may not be an explicit reason for the denial of this quote unquote.

[00:20:59] Speaker 03:
What does the notice requirement go to?

[00:21:01] Speaker 03:
Does it go to the fact that just simply that the claim was denied?

[00:21:06] Speaker 03:
Or does it go to, and therefore you

[00:21:30] Speaker 03:
as we did now itself.

[00:21:32] Speaker 00:
sure i understand judge and and uh... nineteen ninety one version of the regulation which judge post uh... read earlier requires requires uh... that the notice will include the reason for the decision the date will be effective as well as the right to a hearing and so what i think that this court and the veterans court have have done together is put a gloss on what that means when it talks about the reason for the decision right it's not simply was there a denial or not there are four different factors that a court has to go through

[00:22:02] Speaker 00:
that the Board and the Veterans Court go through to figure out whether there was a sufficient notice to the veteran.

[00:22:08] Speaker 00:
And so the Cogburn factors talk about the specificity of the claims or the relatedness of the claims.

[00:22:13] Speaker 00:
You know, was the claim for a head injury and now years later the veteran is asking for compensation for headaches.

[00:22:21] Speaker 00:
What was the specificity of the adjudication?

[00:22:24] Speaker 00:
What is the language that is in the actual decision from the regional office?

[00:22:28] Speaker 00:
And so

[00:22:30] Speaker 00:
In this case, it's pretty clear.

[00:22:31] Speaker 00:
They talked at length about the fact that he had hurt his head, he had lacerations, he had headaches, et cetera, and then rejected all but the scars.

[00:22:39] Speaker 00:
The timing of the claims.

[00:22:40] Speaker 00:
If the claims are submitted within a certain amount of time as opposed to years apart, whether the claimant was represented.

[00:22:46] Speaker 00:
So the concern that you have, Judge Raina, that

[00:22:49] Speaker 00:
the veteran needs to be informed, have some sort of idea that his claim was denied.

[00:22:54] Speaker 00:
It's not simply, was there a denial?

[00:22:56] Speaker 00:
Yes.

[00:22:56] Speaker 00:
So the VA is going to use that to weaponize against the veteran here.

[00:23:01] Speaker 00:
The board and the Veterans Court go through this extensive multi-factor analysis to determine whether there actually is notice.

[00:23:09] Speaker 00:
And the veteran received that implied notice that satisfies the due process rights in the regulation.

[00:23:14] Speaker 01:
I'm a little confused.

[00:23:17] Speaker 01:
Implicit denial, you seem to say, but I thought you were saying it also included the notice requirement.

[00:23:23] Speaker 01:
We're talking about two different notices, right?

[00:23:25] Speaker 01:
We're talking about a notice that your claim was denied.

[00:23:29] Speaker 01:
And then we're talking about the notice as to the reason for that denial.

[00:23:34] Speaker 01:
Right?

[00:23:34] Speaker 00:
Right.

[00:23:34] Speaker 00:
The regulation requires both of those.

[00:23:36] Speaker 01:
It requires a decision in.

[00:23:37] Speaker 01:
And are you saying that for implicit denials, because of the nature of the denial that this court has long said, we can count those if they satisfy the reasonable, whether the second of those notice requirements, stating the reasons, applies in those contexts or doesn't apply in those contexts?

[00:23:56] Speaker 00:
I'm not trying to dodge your question.

[00:23:59] Speaker 00:
I think that the answer to that is subsumed by the analysis.

[00:24:02] Speaker 00:
So it does not require it.

[00:24:05] Speaker 00:
Otherwise, it would be an explicit denial to require it.

[00:24:09] Speaker 01:
That's right.

[00:24:09] Speaker 01:
I'm sympathetic with you, because I'm trying to get my head around this.

[00:24:12] Speaker 01:
I'm not just asking you.

[00:24:13] Speaker 00:
Right.

[00:24:13] Speaker 00:
And so really quickly, I think that the way, to the extent that if Mr. Steele insists that there has to be some explicit quote unquote reason for why his headache claim was denied, whether or not that is

[00:24:25] Speaker 00:
present in the decision is part of that Coburn and the Coburn multi-factor analysis I discussed.

[00:24:30] Speaker 01:
I don't know.

[00:24:31] Speaker 01:
So you're saying Coburn does require notice of the reasons and not just notice of the denial?

[00:24:37] Speaker 00:
Coburn requires the court to look to the language to see whether

[00:24:41] Speaker 00:
a reasonable claimant would be put on notice that his claim was denied.

[00:24:45] Speaker 00:
And there are ways to figure that out.

[00:24:47] Speaker 00:
What was the language in the decision?

[00:24:49] Speaker 00:
Were the claims really enough?

[00:24:49] Speaker 01:
But that goes to the first part of the notice, whether your claim was denied.

[00:24:53] Speaker 01:
And the second part of the notice, which is encompassed by the regulation, is the reasons why.

[00:24:59] Speaker 00:
Oh, I understand what you're saying.

[00:25:01] Speaker 00:
I understand the distinction-making.

[00:25:02] Speaker 00:
No, that's fair.

[00:25:05] Speaker 00:
I think to that extent, then, the actual reasons for the denial of the related claim that's not the explicit subject of the decision do not have to be included in the RRO's decision.

[00:25:22] Speaker 00:
Because otherwise, it would be an explicit denial.

[00:25:24] Speaker 02:
But now I'm a little confused.

[00:25:26] Speaker 02:
I should have stopped talking a couple minutes ago.

[00:25:29] Speaker 02:
I thought your position was that the notice requirement applies to the

[00:25:36] Speaker 02:
to the explicit decision.

[00:25:38] Speaker 02:
The explicit decision was made in this case in 1991 denying the head injury as a claim.

[00:25:47] Speaker 02:
And it set forth both the denial and, I guess, questioned whether it set forth the reasons.

[00:25:54] Speaker 02:
But the notice regulation would apply to that explicit determination.

[00:26:00] Speaker 02:
What's before us now is the claim for

[00:26:04] Speaker 02:
and implicit denial, the argument being that, well, in the denial of your claim for a head injury, implicit in that was a denial of your claim for migraines.

[00:26:18] Speaker 02:
And as I understand Cogburn and Adams, the implicit denial itself is a notice, and nothing further is required as long as the

[00:26:32] Speaker 02:
the underlying decision, the actual explicit decision that was made originally, complies with the regulation.

[00:26:40] Speaker 02:
Well, that's right.

[00:26:41] Speaker 00:
That is the first thing.

[00:26:42] Speaker 00:
And what I just said a moment ago was that, like Judge Post described it, the implicit denial satisfies that first prong.

[00:26:50] Speaker 00:
The veteran has to have noticed that a claim was denied, which is a little bit different than the reasons why the claim was denied.

[00:26:56] Speaker 00:
And so what I'm saying is that the

[00:26:58] Speaker 00:
There is not an explicit requirement or requirement for an explicit description as to the reasons why an implied claim had been implicitly denied.

[00:27:08] Speaker 01:
We may have gone, I mean, we've got a few presidential cases here, which we're compelled to follow.

[00:27:14] Speaker 01:
And so that may resolve the matter.

[00:27:17] Speaker 01:
But does it not seem a little odd to you that there should be a lesser requirement on the government in terms of notice?

[00:27:26] Speaker 01:
when there's an implicit denial than when there's an explicit denial.

[00:27:30] Speaker 01:
It kind of seems intuitive to me that maybe it should be the reverse.

[00:27:35] Speaker 00:
Well, I think that there's a couple of...

[00:27:37] Speaker 00:
ways I would address that.

[00:27:38] Speaker 00:
First, there is a safety net for veterans and for claimants here that's effectuated through the Cogburn factors.

[00:27:47] Speaker 00:
The four factors.

[00:27:47] Speaker 00:
It's not simply a denial to your supplement.

[00:27:51] Speaker 00:
In fact, I think the court has specifically in its presidential decisions rejected prior VAE arguments that the rule should be applied more broadly.

[00:28:00] Speaker 00:
And so it's narrowed the scope of that analysis.

[00:28:02] Speaker 00:
And the other reason, I think, from a practical matter is

[00:28:04] Speaker 00:
The implicit denial rule helps act as a backstop to provide the VA repose to essentially years, decades long claims that would otherwise, when they're reasonably raised, you have to look at the claimant and the claim in light favorable to the veteran.

[00:28:23] Speaker 00:
And there has to be at least some reasonable backstop to prevent an endless open claim because the claimant says, because you didn't use magic words,

[00:28:34] Speaker 00:
for this particular headache claim, even though I raise a head entry.

[00:28:38] Speaker 01:
No, I appreciate that.

[00:28:39] Speaker 01:
And that's, I think, where our cases land consistently along the way.

[00:28:46] Speaker 00:
Thank you, Your Honor.

[00:28:47] Speaker 00:
We ask that you affirm the Veterans Court decision if you do not dismiss the case for lack of jurisdiction.

[00:29:09] Speaker 04:
Your notice is what's being protected with this regulation.

[00:29:18] Speaker 04:
It requires content.

[00:29:20] Speaker 04:
The content of the VA's own regulation in the effort to protect the veteran to be sure that they understand what was decided is the reason for that decision.

[00:29:34] Speaker 04:
The Coburn factors focus on

[00:29:37] Speaker 04:
the implementation of the implicit denial rule for what could be reasonably inferred to have been understood by the veteran.

[00:29:48] Speaker 04:
The veteran cannot imagine what the reasons are.

[00:29:54] Speaker 04:
The reasons are provided by the agency.

[00:29:57] Speaker 03:
So looking at the test, this is where the reasonable claimant would have understood in this case that the 1991 decision was implicitly denied.

[00:30:10] Speaker 03:
Under the implicit denial rule, a claimant, a reasonable claimant, should understand whether, in this case, a 1991 decision was implicit.

[00:30:25] Speaker 03:
Does the claimant also have to reasonably understand the reason why he would deny it?

[00:30:32] Speaker 04:
Yes.

[00:30:33] Speaker 04:
Because that's what the regulation requires.

[00:30:36] Speaker 04:
The secretary imposed upon himself.

[00:30:38] Speaker 03:
I think that's the requirements being met.

[00:30:43] Speaker 03:
I don't see, is that it?

[00:30:46] Speaker 03:
The VA just has to show that this claim was denied?

[00:30:51] Speaker 03:
There has to be a basis for that denial.

[00:30:53] Speaker 04:
That's right.

[00:30:54] Speaker 04:
And the basis is in the reasons for the decision, which in this case are actually in the rating decision, but are not in the notice.

[00:31:05] Speaker 04:
And the notice does not speak directly to any reason why

[00:31:12] Speaker 04:
the rating decision did what it did in denying any compensation based upon his head injury.

[00:31:22] Speaker 01:
Well, I don't think that's really that correct, because when I'm looking at appendix 23, granted, I mean, this was just a minor part of his stuff.

[00:31:31] Speaker 01:
He had a lot of complaints about

[00:31:33] Speaker 01:
and other injuries.

[00:31:35] Speaker 01:
But it devotes a few, bottom of page 23, it talks about, of appendix 23.

[00:31:40] Speaker 01:
The veteran had some complaints of headaches.

[00:31:44] Speaker 01:
There were no further complaints of the head during the service, punctured the scar, blah, blah, blah.

[00:31:49] Speaker 01:
The veteran claimed only occasional headaches as a residual, but these were not disabling.

[00:31:54] Speaker 01:
And then it goes on to say, which is why this notice was certainly sufficient.

[00:32:01] Speaker 04:
But, Your Honor, page 23,

[00:32:03] Speaker 04:
is from the rating decision.

[00:32:06] Speaker 04:
It's the notice that is defective.

[00:32:09] Speaker 04:
It is the notice that does not conform with the requirements of the regulation in the notice which begins at 25 and ends at 26.

[00:32:20] Speaker 01:
But it's all read in the context and they say this rating decision says that

[00:32:25] Speaker 01:
For these reasons including why it's just dismissing the headaches that the only residual Is the scar and then they refer back to that is the only residual of your head injury in other words We don't conclude that the headaches were sufficient residuals.

[00:32:42] Speaker 01:
I mean Satisfies clearly the implicit standard.

[00:32:46] Speaker 01:
We've been applying all through decades right with all due respect to our

[00:32:50] Speaker 04:
That is an anti-veteran as opposed to pro-veteran reading and a very charitable reading of the notice.

[00:32:58] Speaker 01:
Well, if you're challenging whether this was a sufficient implicit denial, we have jurisdiction over that?

[00:33:06] Speaker 04:
I'm saying that the role of the implicit denial rule is about

[00:33:14] Speaker 04:
the knowledge that is imputed to the veteran of what was denied, not why what was denied.

[00:33:24] Speaker 04:
And the criteria set out in Coburn by the Veterans Court only address the knowledge that

[00:33:34] Speaker 04:
can be inferred that there was a denial.

[00:33:37] Speaker 04:
He does not dispute that there is an inferred denial.

[00:33:42] Speaker 04:
What he disputes is that the rating decision had reasons, and those reasons didn't appear in the notice.

[00:33:50] Speaker 04:
And that's what due process requires under the VA zone regulation.

[00:33:59] Speaker 04:
I'm sorry, Your Honor?

[00:34:00] Speaker 03:
The question that you posed here, and I

[00:34:09] Speaker 04:
I don't think so, Your Honor.

[00:34:12] Speaker 04:
Yes, yes, yes.

[00:34:14] Speaker 04:
It is a straight up question of law.

[00:34:17] Speaker 03:
You're asking this.

[00:34:19] Speaker 03:
You're raising an argument that's really about the application of the law to the facts.

[00:34:24] Speaker 04:
Absolutely not, Your Honor.

[00:34:25] Speaker 04:
I am asking this court to enforce its interpretation of the procedural notice requirements that those notice requirements were not provided

[00:34:39] Speaker 04:
negate the notice as a matter of law.

[00:34:43] Speaker 04:
That's what this court's ruling and rule says.

[00:34:46] Speaker 04:
And Mrs. Rule was in the identical circumstances as here, is that she had to wait years to get them to finally grant the benefit.

[00:34:57] Speaker 04:
More than 25 years went by for this particular bench.

[00:35:00] Speaker 04:
I see I'm way over my time.

[00:35:02] Speaker 04:
I appreciate the court's consideration.

[00:35:06] Speaker 01:
Thank both sides.

[00:35:07] Speaker 01:
The case is submitted.