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Earlier Effective Date for Veteran's Increased Benefits Denied

Munro v. Shinseki, Case No. 2009-7110 (C.A. Fed, Aug. 6, 2010)

Philip D. Munro (“Munro”) appeals from a final judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (“Board”) denying Munro an earlier effective date for an increased rating for his service-connected granuloma of the left lung and total disability based on individual unemployability (“TDIU”). See Munro v. Peake, No. 07-0083, 2008 WL 5101148 (Vet. App. Oct. 15, 2008). We affirm.

BACKGROUND
Munro claims that he is entitled to a 1995 or 1997 effective date for increased compensation for his service-connected disability because of informal claims for that disability that were made in those years. Under the pertinent statute and regulations, the effective date for increased benefits based on a claim can generally be no earlier than the filing date of the claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date will generally date back to the date of an earlier claim if that claim was still pending on the date of the award. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). The question here is whether 1995 and 1997 informal claims were still pending or were deemed denied when the Department of Veterans Affairs (“VA”) in November 1997 denied a formal claim for increased benefits for the same disability.

Munro served on active duty in the United States Navy from June 1958 to May 1962. During his military service, Munro experienced respiratory difficulties, and a lesion was identified in his left lung. The lesion was surgically removed at a naval hospital in July 1961 and identified as a fibrocaseous granuloma. After his surgery Munro returned to duty and was discharged in 1962.

In September 1992, Munro filed a VA claim for service connection and compensation for “[r]espiratory difficulties.” J.A. 24. In March 1993, the VA regional office (“RO”) granted service connection for the granuloma of the left lung identified while Munro was in the service, but found the condition asymptomatic with a zero percent disability rating, attributing Munro’s respiratory difficulties to non-service-connected chronic obstructive pulmonary disease (“COPD”) resulting from forty years of smoking. Munro did not appeal that decision. A year later, in March 1994, Munro filed a claim for an increased rating, which the RO denied the following month. Munro again did not appeal.
 

 

Judge(s): Bryson, Dyk, and Rader
Jurisdiction: U.S. Court of Appeals, Federal Circuit
Related Categories: Administrative Law
 
Circuit Court Judge(s)
William Bryson
Timothy Dyk
Randall Rader

 
Trial Court Judge(s)
Robert Davis

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Kenneth Carpenter Carpenter Chartered

 
Respondent Lawyer(s) Respondent Law Firm(s)
Jeanne Davidson U.S. Department of Justice
Meredyth Havasy U.S. Department of Justice
Martin Hockey U.S. Department of Justice
Kirk Manhardt U.S. Department of Justice
Tony West U.S. Department of Justice
Martin Sendek U.S. Department of Veterans' Affairs
Michael Timinski U.S. Department of Veterans' Affairs

 

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tive date for that disability should be july 1984. we va hospitals regularly for examination or treatment. claims. report by requesting the va to obtain and consider his veteran filed a claim for service connection in april 1951 medical report also constituted a pending informal claim services hospital will be accepted as the date of that the report could not be an informal claim because it minate the pending status of both formal and informal had other reasons to understand that his informal claims 1372. compensation has been allowed or a formal claim earlier identical claim must fail." see munro, 2008 wl 1993 to 1997" as evidence. j.a. 108. although it may viewed the va medical reports, but found that they did final adjudication of a claim which is identical to a pend- respondent-appellee. 1993 to 1997 to be secured as evidence to support his the appeal period begins to run." id. at 1261 (citing an- munro v. dva 4 lung condition. he stated that he felt "the condition has benefits or an informal claim to reopen. . . . munro v. dva 10 the va granted the veteran service connection for schizo- decision. for increased benefits and tdiu based on his service- for an increased rating for his service-connected disabil- munro served on active duty in the united states but the regulations provide an absolute right in a case id. in october 1951, the veteran submitted an affidavit to in 1997, the va awarded service connection for endo- described `copd' . . . which was not a disability for which munro's argument that the april 1997 va medical report deemed to have been denied . . . even if the [va] did not however, 38 c.f.r. 3.157(b) only establishes that evi- williams v. peake, 521 f.3d 1348, 1351 (fed. cir. 2008). martin j. sendek, attorney, office of the general coun- government urges that these records related only to ans court "with respect to the validity of a decision of the munro's claim for increase, noting that it considered 5101148 (vet. app. oct. 15, 2008). we affirm. november 1997 ro decision, and, moreover, concluded ro decision stated that "[t]he regular schedular standard claim must fail. the notice given that the later hospitalized in a va medical facility and diagnosed with sion, the claimant can infer that the earlier-filed claim tion, denying the claim on its merits, also decides that the fective date for increased compensation for his service- identical pending claims. see also charles v. shinseki, ties." j.a. 24. in march 1993, the va regional office related to munro's non-service-connected copd, not his no costs. appeal from the united states court of appeals for kenneth m. carpenter, carpenter, chartered, of requirement for the implicit denial rule. in that case, the on march 31, 2003, munro filed another formal claim court on a rule of law or of any statute or regulation . . . pensable in degree, receipt of one of the following rating for his service-connected granuloma of the left lung for increased benefits, warranting an earlier effective merits, also decides that the earlier identical denied a formal claim for increased benefits for the same decision depended on that interpretation . . . ."). under for total disability based on individual unemployability, disability. different because the veteran "may not have been aware . the underlying claims in a manner that put mr. adams on united states court of appeals denial of a claim will terminate the pending status of any decision of the veterans court without deference. id. at itly denied extraschedular compensation for tdiu. the denial rule cannot apply to informal claims--only to the march 1977 claim remained pending, we explained: that his claim for service connection has failed. which the ro granted effective april 1, 2003, based upon 5101148, at *1 (quotation marks omitted). under this any claim for psychiatric disability. id. at 125960. including the va medical reports and the veteran's affi- the other claim, the second claim is deemed denied, and matic heart disease claim and the endocarditis claim, raised by the april 1997 va medical record. the ro before rader, chief judge, bryson, and dyk, circuit 38 c.f.r. 3.157, as here in this case. it is not necessary reading the ro's november 1997 decision, a reasonable appeal to the bva, and if necessary to the veter- elaborated the meaning of a statute or regulation and the vices. the date of outpatient or hospital examina- claims were deemed denied by that decision. the veter- munro's schedular disability rating and evidence of un- (b) claim. once a formal claim for pension or washington, dc. with such related factors as marked interference with "the implicit denial rule is, at bottom, a notice provision." eran files more than one claim with the ro at the same related to his service-connected granuloma of the left munro v. dva 12 informal claim raised an extraschedular claim for tdiu munro v. dva3 tion or date of admission to a va or uniformed [is] non-service connected," and that "the medical reports notably does not claim that he was unaware of the medi- topeka, kansas argued for claimant-appellant. cal records alleged to constitute the informal claims, and ties as well as physical disabilities. id. at 1259. the ro's other active cardiac pathology during service." id. disallowed. id. the veteran filed another claim for veteran files two closely related claims but the va deci- appealed to the board. the board similarly rejected the later disposition, denying the claim on its phrenia, at which point he argued that he was entitled to address each of these arguments in turn. in doing so, we surgically removed at a naval hospital in july 1961 and date. the veterans court, quoting our decision in wil- service-connected granuloma of the left lung. while the veteran never received notice that the claim had been failed to notify a veteran of the denial of his claim. cook veteran's heart disease claim. id. the veteran appealed in may 1995, munro underwent pulmonary tests at a disability rating, attributing munro's respiratory difficul- such as this for veterans to secure their va medical earlier than the filing date of the claim. 38 u.s.c. november 1997 ro decision as denying the entire claim not notified of its denial. id. rejecting the argument that cal center dated 03-19-96 to 07-18-97." j.a. 43. the ro claims were still pending or were deemed denied when the ties to non-service-connected chronic obstructive pulmo- v. even if the [va] did not expressly address that claim in its ("ro") granted service connection for the granuloma of (citing williams, 521 f.3d at 1350)). sion rules explicitly on only one of those claims, the im- decision in october 1951 was a denial of both the rheu- we therefore concluded that the veteran had received must assume, as the veterans court did, that the may lesion was identified in his left lung. the lesion was trauma. he sought compensation for psychiatric disabili- 3.160(c). a claim will also remain pending if the va munro's non-service-connected copd and could therefore a veterans court holding that an ro "decision alluded to philip d. munro ("munro") appeals from a final judg- claim was still pending on the date of the award. see part: or any interpretation thereof (other than a determination ("we hold that we have jurisdiction over . . . issues of 2009-7110 ___________________________ all of the records, that is an issue that munro should have connected disability because of informal claims for that claim remained pending, holding that "[w]here the vet- formal claims. munro urges that informal claims are 587 f.3d 1318, 1323 (fed. cir. 2009) ("[w]hen the sub- decision granted service connection for physical disabili- the pending status of the earlier claim." 521 f.3d at 1351. will be accepted as an informal claim for increased shinseki, 568 f.3d 956, 960 (fed. cir. 2009); 38 c.f.r. that decision cited "[o]utpatient treatment reports from this notice affords the veteran the opportunity for records. see 38 c.f.r. 1.513(b)(1)(ix). here, munro increased benefits for his asserted disability based on 1996. in a november 1997 decision, the ro denied employability. in november 2003, the ro revised the was an informal claim, because "[t]he cited medical record nary disease ("copd") resulting from forty years of denying munro an earlier effective date for an increased that was not addressed by the november 1997 ro deci- are unrelated to treatment for a left lung granuloma." id. decision served to adjudicate them." id. at *2. the vet- denied. in addition, when munro filed his september rating, which the ro denied the following month. munro affirmed (fed. cir. 2004). we review a claim of legal error in a the left lung identified while munro was in the service, denial' rule provides that . . . a claim for benefits will be that all of munro's claims were for an increased rating the fargo va medical center dated 03-19-96 to 07-18-97" munro v. dva7 claim has been disallowed informs the veteran c.f.r. 3.160(c)). in adams, we explicitly applied the service connection had been granted. no mention was the ratings increases based on a pending informal claim 5110(a); 38 c.f.r. 3.400(o)(1). the effective date will earlier claim," 521 f.3d at 1351 (emphasis added), while earlier effective date. id. munro timely appealed. those claims. here, even though the may 1995 and april in connection with the september 1997 formal claim. that his claims were not the same, because the april 1997 informal claims for increased compensation, not that munro argues that the veterans court erred in apply- munro v. dva9 treated as denied. there, the veteran in july 1984 sought j. timinski, deputy assistant general counsel, and for rheumatic heart disease, which the va denied in june claim as a matter of law provides notice that the earlier principi, 284 f.3d 1335, 1359 (fed. cir. 2002) (en banc) expressly address that claim in its decision." id. at 961. holding that "a subsequent final adjudication of a claim sel, united states department of veterans affairs, of interpretation if the court of appeals for veterans claims made of the granuloma." j.a. 77. munro appealed the dence such as va medical reports will be accepted as ("tdiu"). see munro v. peake, no. 07-0083, 2008 wl erans court affirmed the denial of munro's claim for an claims for increased disability ratings related to munro's manhardt, assistant director, and meredyth cohen mains pending until it is finally adjudicated. adams v. denial rule is applicable here. in deshotel v. nicholson, in williams, we applied the implicit denial rule in dyk, circuit judge. costs the heart disease was connected to the veteran's service. of 2002, pub. l. no. 107-330, 402(a), 116 stat. 2820, 1997 claim, he based that claim in part on his may 1995 stance of a later-filed claim is addressed in an ro deci- service connection for disabilities related to a head of munro's formal claim. __________________________ claims ("veterans court"). the veterans court affirmed service connection related to a nervous condition. id. at identified as a fibrocaseous granuloma. after his surgery earlier informal claims were identical to his later claim, progressed to a point where it is totally disabling." j.a. service, munro experienced respiratory difficulties, and a __________________________ the question here is whether 1995 and 1997 informal diagnoses, but again the ro sustained the denial of the sufficient notice that his claims had been denied, because __________________________ which is identical to a pending claim that had not been liams, 521 f.3d at 1351, stated that "[a] subsequent final formal claims--we see no proper basis to distinguish ___________________________ ment of justice, of washington, dc, argued for respon- between formal and informal claims. munro asserts that decision." adams, 568 f.3d at 961. attorney general, jeanne e. davidson, director, kirk t. hold that the implicit denial rule may be applied to ter- him that his earlier informal claims were also denied. in september 1997, munro requested a reopening of connection for a "heart condition." the board denied the particularly where the claims relate to the same service- claimant-appellant, the va, warranting an earlier effective date. apparently ple reasons to know that any pending informal claims he pending claim for it to be deemed denied. "the `implicit connected disability. the failure to mention every pend- sion of those earlier claims in a later va decision. we [a va decision] provided sufficient information for a thereafter, in williams, we held that "a subsequent were being denied in the november 1997 ro decision. philip d. munro, while the implicit denial rule is applicable because claim has been denied. as noted above, we must assume implicit denial rule, the court held that even "if [the may munro v. dva 6 generally date back to the date of an earlier claim if that ans court and this court, so that he might demon- (1) report of examination or hospitalization by those va medical records. therefore, those informal affairs, eran alleged were pertinent. munro therefore had multi- for the federal circuit psychiatric condition, the veteran argued that his effec- plicit denial rule requires that the other claims also be appeal, noting that it had considered the entire record, as to a factual matter) that was relied on by the court in where a veteran is not put on notice that the earlier claim for an increased rating. the va medical center only receipt of a claim. supplied the ro with records dating back to the start of of informal claims. the regulation provides in relevant connection and compensation for "[r]espiratory difficul- ity. in may 2003, the ro increased munro's disability for the first time munro argued that the may 1995 va have been sustained. notice that his informal claim for bacterial endocarditis rheumatic heart disease and endocarditis. the ro re- service-connected left lung granuloma. munro then 1978, which the ro denied on the merits. id. in 1994, informal claim raised by the april 1997 report was also disability that were made in those years. under the guing that he was entitled to an earlier effective date for pertinent statute and regulations, the effective date for following a 2000 grant of service connection for the ing claim that had not been finally adjudicated terminates "outpatient records from vamc ft. meade for the period martin f. hockey, jr., trial attorney, commercial making the decision." 38 u.s.c. 7292(a); see forshey v. 108. munro requested all of his va medical records from for increased benefits based on the records that the vet- department of veterans affairs or uniformed ser- we have jurisdiction to review decisions of the veter- indeed urged the va to obtain and consider those records claims. second, he argues that the rule does not apply awarded benefits for his asserted disability." id. at 963. adams v. shinseki, 568 f.3d 956, clarified the notice informal claims require separate consideration from 1997 informal claims were not expressly discussed, upon here, as in williams, the informal claims raised by veterans with service-connected disabilities may visit carditis, and the veteran sought a 1951 effective date on again did not appeal. because the veteran failed to provide information, but the claim that had not been finally adjudicated terminates the may 1995 and april 1997 medical reports and the 457 f.3d 1258 (fed. cir. 2006), we held that where a sion. but this is not the case, as the ro decision explic- claims as mr. munro contends, the november 1997 ro "[s]evere copd" and was "totally 100% [p]ermanently va medical center, where a physician diagnosed munro department of veterans affairs ("va") in november 1997 munro returned to duty and was discharged in 1962. munro v. dva5 reasonable claimant to know that he would not be bly) on one of the claims but fails to specifically address this does not require a va decision to expressly discuss a 1995 and april 1997] medical documents were informal claim, which he argued remained pending because he was this leaves us the question of whether the implicit as evidence the va had considered. j.a. 43. this would found that the "va medical reports show that the veteran judges. may have had were denied by the november 1997 ro lung, rather than for copd. munro contends, however, in that case, the veteran filed a claim in march 1977 for service connection for his nervous condition in october disabled." j.a. 42. navy from june 1958 to may 1962. during his military va denied munro's september 1997 formal claim while "[o]utpatient treatment reports from the fargo va medi- with regard to munro's contention that the implicit discussion been presented." j.a. 43. therefore, because munro's for the va to address every one of these informal claims april 1997, the same va physician noted that munro had increased benefits based on a claim can generally be no ing the implicit denial rule. first, he argues that the 1951. id. at 959. not long thereafter, the veteran was munro did not appeal that decision. litigation branch, civil division, united states depart- the va's denial of his later claim was sufficient to notify time, and the ro's decision acts (favorably or unfavora- effective date for both ratings to march 31, 2003, the date the basis that his 1951 endocarditis claim remained action by the va denying a claim identical to an earlier claimant would know that he would not be awarded for compensation disallowed for the reason that id. at 965. thus, the proper notice standard is "whether the service-connected disability is not com- of the close association of his claims and the fact that in court. see szemraj v. principi, 357 f.3d 1370, 137475 ans court's judgment is affirmed. smoking. munro did not appeal that decision. a year before the veterans court, munro again argued that . . . was also denied" (emphasis added)). therefore, we finally adjudicated terminates the pending status of the 2832 (codified at 38 u.s.c. 7292(a)), we have jurisdiction munro v. dva13 not be informal claims, this raises fact issues over which separately, nor is it reasonable to expect them to do so, recognizing that a "[p]ending claim" can originate as a deemed to have been denied, and thus finally adjudicated, is shown to be adequate to compensate the veteran's the statute as amended in 2002, see veterans benefits act 1995 and april 1997 va medical reports were informal disability. an exceptional or unusual disability picture strate that his claim for service connection should under the implicit denial rule, "a claim for benefits will be and total disability based on individual unemployability it is established, however, that in certain circumstances, ties resulting from the head trauma, but did not address based on the same disability has also been adjudicated." pending. id. relying on deshotel, we held that the ro's adjudication of a claim which is identical to a pending connected disability that had never been adjudicated by in september 1992, munro filed a va claim for service april 1997 report had been considered as part of the endocarditis. id. at 96164. in doing so, we noted that later, in march 1994, munro filed a claim for an increased munro's may 1995 and april 1997 informal claims were have been error for the va to fail to secure and consider background munro v. dva 8 we lack jurisdiction. munro v. dva11 1349. the ro disallowed the claim three months later munro claims that he is entitled to a 1995 or 1997 ef- 38 c.f.r. 3.157(b) mandates the separate adjudication rating for his left lung granuloma to 60 percent, effective dent-appellee. on the brief were tony west, assistant drews v. nicholson, 421 f.3d 1278 (fed. cir. 2005)). with "severe obstructive airways disease." j.a. 41. in employment or frequent periods of hospitalization has not affidavit and hospital records. id. at 96365. "formal or informal" claim, see id. at 1350 (quoting 38 raised on appeal. a reasonable claimant would read the but found the condition asymptomatic with a zero percent the april 1997 va medical report was an informal claim ing informal claim in a va decision does not preserve has severe chronic obstructive pulmonary disease," "which . . that the records existed." claimant-appellant's br. 1. board's decision to the veterans court. this will result in the creation of multiple treatment an earlier effective date relating back to his march 1977 records. this may lead to multiple informal claims under v. principi, 318 f.3d 1334, 1340 (fed. cir. 2002) (en banc). april 1997 informal claim was founded. the fact that the decided: august 6, 2010 a claim for benefits, whether formal or informal, re- a decision of the board of veterans' appeals ("board") rejected his contention that the july 1984 psychiatric identical to his september 1997 formal claim, munro also his claim for an increased rating for his service-connected 1951 both the ro and the board had considered his to review all legal questions decided by the veterans the pending status of the earlier claim. the later disposi- pending claims are being rejected by an explicit discus- havasy, attorney. of counsel on the brief were michael even though the ro decision did not explicitly address munro v. dva 2 ment of the united states court of appeals for veterans davit, and found no evidence of "active rheumatic fever or rule to an informal claim. see 568 f.3d at 963 (affirming have included the medical report upon which munro's id. at 1351. thus, under the implicit denial rule, the denied an earlier effective date because it found that the april 1, 2003. in june 2003, munro filed a formal claim considering this report was a clear indication that any not reveal any new and material evidence about whether implicit denial rule does not apply to pending informal to the board, contending that he was entitled to service formal claim filed in september 1997 were identical. munro filed a notice of disagreement with the ro, ar- veterans claims in 07-0083, judge robert n. davis. the ro referring the va to the hospital report and both __________________________ eric k. shinseki, secretary of veterans


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