Dennis W. Cogburn v. Eric K. Shinseki

24 Vet. App. 205, 2010 U.S. Vet. App. LEXIS 2377, 2010 WL 5079893
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 13, 2010
Docket08-1561
StatusPublished
Cited by17 cases

This text of 24 Vet. App. 205 (Dennis W. Cogburn v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis W. Cogburn v. Eric K. Shinseki, 24 Vet. App. 205, 2010 U.S. Vet. App. LEXIS 2377, 2010 WL 5079893 (Cal. 2010).

Opinions

HAGEL, Judge:

Dennis W. Cogburn appeals though counsel a January 28, 2008, Board of Veterans’ Appeals (Board) decision that denied entitlement to an effective date earlier than October 1, 1991, for the award of VA benefits for post-traumatic stress disorder, including denying that there was clear and unmistakable error in a June 1993 regional office decision. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The case was sent to a panel to address an issue of first impression, which is whether application of the implicit denial doctrine in this circumstance violated the appellant’s due process right to notice of VA’s decision and appellate process. Because the Board did not make any findings with regard to whether the implicit denial doctrine applied to Mr. Cogburn’s claim, the Court will vacate the January 28, 2008, Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS

Mr. Cogburn served on active duty in the U.S. Army from August 1968 to August 1971, including service in Viet Nam.

A. 1974 Claim

In November 1974, Mr. Cogburn filed a claim for a “severe nervous condition.” Record (R.) at 948. On his application, he separately underlined the word “compensation” and the word “pension.” R. at 947. He also indicated in his application that he was treated for his nervous condition at a VA hospital in Albuquerque, New Mexico, in November 1974. A VA hospital summary for the period from November to December 1974 indicates that Mr. Cog-burn was depressed and anxious and suffered from feelings of inferiority. Subsequently, in February 1975, a VA regional office issued a decision denying Mr. Cog-burn entitlement to pension. A letter attached to that decision informed him that this was because his “disabilities are not sufficient to permanently prevent [him from] engaging in substantially gainful employment.” R. at 937. The rating decision identified his medical condition as “depressive neurosis ” and specifically stated, “[t]his is a claim for pension.” R. at 939. The decision made no reference to a claim for disability compensation. Mr. Cogburn did not appeal that decision.

Subsequent to that decision, Mr. Cog-burn continued to receive psychiatric treatment. In October 1975, Mr. Cogburn was hospitalized and diagnosed with schizophrenia, chronic, undifferentiated type. Mr. Cogburn was hospitalized again in August 1976, where he was again diagnosed with schizophrenia, chronic, undifferentiated type.

B. 1983 Claim

In June 1983, Mr. Cogburn again filed a claim for VA benefits due to a “nervous disorder.” R. at 911. On his application, he indicated that his condition “began soon after discharge. Began treatment in 1972.” R. at 912. In a January 1984 decision, the regional office found that Mr. Cogburn was not entitled to VA disability [207]*207compensation benefits for post-traumatic stress disorder but that he was “entitled to non-service connected pension benefits due to [his] post[-]traumatic stress disorder.” R. at 880. The decision also informed Mr. Cogburn that “[t]his disorder was not determined to be service connected in nature since there was no recognizable stressor found during your examination.” Id. In March 1984, Mr. Cogburn filed a Notice of Disagreement and ultimately appealed that decision to the Board. In April 1985, the Board remanded Mr. Cogburn’s claim to obtain additional treatment records and to afford him a VA psychiatric examination. Although additional treatment records were obtained, Mr. Cogburn failed to report for his scheduled VA psychiatric examination. Accordingly, in a November 1985 decision, the Board found that Mr. Cogburn did not have post-traumatic stress disorder that was caused by his experience in Viet Nam. The Board also found that “the preponderance of the medical evidence suggests that [Mr. Cog-burnj’s post service emotional and adjustment difficulties are manifestations of schizophrenia.” R. at 822. The Board did not, however, discuss whether Mr. Cog-burn’s schizophrenia was related to his active service. Mr. Cogburn did not appeal that decision.

C. 1991 Claim

In October 1991, Mr. Cogburn requested that his claim for VA benefits for “post-traumatic stress disorder” be reopened. In March 1992, the regional office issued a confirmed rating decision, finding that new and material evidence had not been received to reopen Mr. Cogburn’s claim. Mr. Cogburn appealed that decision, and in a June 1998 decision, the regional office awarded Mr. Cogburn entitlement to VA benefits for post-traumatic stress disorder, assigning a 100% disability rating, effective October 1, 1991, the date his claim to reopen was received.

In November 1993, Mr. Cogburn submitted a statement indicating that he was filing a formal claim for “redetermination of the effective date” of his award for VA benefits for post-traumatic stress disorder, “from Nov[.] 1, 1991, to a date in 1974 when [I] first filed a claim for a nervous condition, or to such other date as is established by the evidence.” R. at 670. Specifically, Mr. Cogburn contended that clear and unmistakable error was committed when VA failed to obtain certain records prior to 1993 and when the October 1991 effective date was assigned, because “[t]he evidence that was eventually found adequate to establish service connection at 100% has been available at all times material to this case.” R. at 671. In a November 1995 letter, Mr. Cogburn was notified that a stay that pertained to his claim had been lifted, and that pursuant to a recent decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit), the regional office did not have the authority to consider his request for revision based on clear and unmistakable error. Therefore, he should file a motion for reconsideration with the Board.

In a January 2001 rating decision, the regional office stated that, based on a review of Mr. Cogburn’s file, it was accepting jurisdiction over whether there was clear and unmistakable error in the June 1993 regional office decision. In March 2002, Mr. Cogburn filed a statement with the regional office, asserting that he was “totally confused as to the current status” of his claim. R. at 555. In May 2002, Mr. Cogburn again filed a statement with the regional office, inquiring as to the status of his unadjudicated claims. Specifically, Mr. Cogburn asserted that his 1974 claim for a “severe nervous condition” was never addressed. In October 2002, the regional office issued a decision, finding that an [208]*208earlier effective date for service connection for post-traumatic stress disorder was not warranted and that VA benefits for a nervous condition, claimed in November 1974, had already been adjudicated as a claim for post-traumatic stress disorder in the November 1985 Board decision and remained denied.

Mr. Cogburn filed a Notice of Disagreement disagreeing, in pertinent part, with the regional office’s determination that his 1974 claim for a “severe nervous condition” and “dysthmia, i.e.

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Bluebook (online)
24 Vet. App. 205, 2010 U.S. Vet. App. LEXIS 2377, 2010 WL 5079893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-w-cogburn-v-eric-k-shinseki-cavc-2010.