United States Court of Appeals
for the Federal Circuit
__________________________
PHILIP D. MUNRO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2009-7110
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 07-0083, Judge Robert N. Davis.
___________________________
Decided: August 6, 2010
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. On the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, KIRK T.
MANHARDT, Assistant Director, and MEREDYTH COHEN
HAVASY, Attorney. Of counsel on the brief were MICHAEL
J. TIMINSKI, Deputy Assistant General Counsel, and
MUNRO v. DVA 2
MARTIN J. SENDEK, Attorney, Office of the General Coun-
sel, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before RADER, Chief Judge, BRYSON, and DYK, Circuit
Judges.
DYK, Circuit Judge.
Philip D. Munro (“Munro”) appeals from a final judg-
ment 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 ef-
fective 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.
3 MUNRO v. DVA
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 difficul-
ties.” 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 difficul-
ties to non-service-connected chronic obstructive pulmo-
nary 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.
In May 1995, Munro underwent pulmonary tests at a
VA medical center, where a physician diagnosed Munro
with “Severe Obstructive Airways Disease.” J.A. 41. In
April 1997, the same VA physician noted that Munro had
“[s]evere COPD” and was “totally 100% [p]ermanently
disabled.” J.A. 42.
In September 1997, Munro requested a reopening of
his claim for an increased rating for his service-connected
lung condition. He stated that he felt “the condition has
progressed to a point where it is totally disabling.” J.A.
108. Munro requested all of his VA medical records from
1993 to 1997 to be secured as evidence to support his
claim for an increased rating. The VA medical center only
supplied the RO with records dating back to the start of
MUNRO v. DVA 4
1996. In a November 1997 decision, the RO denied
Munro’s claim for increase, noting that it considered
“[o]utpatient treatment reports from the Fargo VA Medi-
cal Center dated 03-19-96 to 07-18-97.” J.A. 43. The RO
found that the “VA medical reports show that the veteran
has severe chronic obstructive pulmonary disease,” “which
[is] non-service connected,” and that “the medical reports
are unrelated to treatment for a left lung granuloma.” Id.
Munro did not appeal that decision.
On March 31, 2003, Munro filed another formal claim
for an increased rating for his service-connected disabil-
ity. In May 2003, the RO increased Munro’s disability
rating for his left lung granuloma to 60 percent, effective
April 1, 2003. In June 2003, Munro filed a formal claim
for total disability based on individual unemployability,
which the RO granted effective April 1, 2003, based upon
Munro’s schedular disability rating and evidence of un-
employability. In November 2003, the RO revised the
effective date for both ratings to March 31, 2003, the date
of Munro’s formal claim.
Munro filed a notice of disagreement with the RO, ar-
guing that he was entitled to an earlier effective date for
the ratings increases based on a pending informal claim
raised by the April 1997 VA medical record. The RO
denied an earlier effective date because it found that the
April 1997 report had been considered as part of the
November 1997 RO decision, and, moreover, concluded
that the report could not be an informal claim because it
related to Munro’s non-service-connected COPD, not his
service-connected left lung granuloma. Munro then
appealed to the Board. The Board similarly rejected
Munro’s argument that the April 1997 VA medical report
was an informal claim, because “[t]he cited medical record
described ‘COPD’ . . . which was not a disability for which
service connection had been granted. No mention was
5 MUNRO v. DVA
made of the granuloma.” J.A. 77. Munro appealed the
Board’s decision to the Veterans Court.
Before the Veterans Court, Munro again argued that
the April 1997 VA medical report was an informal claim
for increased benefits and TDIU based on his service-
connected disability that had never been adjudicated by
the VA, warranting an earlier effective date. Apparently
for the first time Munro argued that the May 1995 VA
medical report also constituted a pending informal claim
for increased benefits, warranting an earlier effective
date. The Veterans Court, quoting our decision in Wil-
liams, 521 F.3d at 1351, stated that “[a] subsequent final
adjudication of a claim which is identical to a pending
claim that had not been finally adjudicated terminates
the pending status of the earlier claim. The later disposi-
tion, denying the claim on its merits, also decides that the
earlier identical claim must fail.” See Munro, 2008 WL
5101148, at *1 (quotation marks omitted). Under this
implicit denial rule, the court held that even “if [the May
1995 and April 1997] medical documents were informal
claims as Mr. Munro contends, the November 1997 RO
decision served to adjudicate them.” Id. at *2. The Vet-
erans Court affirmed the denial of Munro’s claim for an
earlier effective date. Id. Munro timely appealed.
DISCUSSION
We have jurisdiction to review decisions of the Veter-
ans Court “with respect to the validity of a decision of the
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the Court in
making the decision.” 38 U.S.C. § 7292(a); see Forshey v.
Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc)
(“We hold that we have jurisdiction over . . . issues of
interpretation if the Court of Appeals for Veterans Claims
MUNRO v. DVA 6
elaborated the meaning of a statute or regulation and the
decision depended on that interpretation . . . .”). Under
the statute as amended in 2002, see Veterans Benefits Act
of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820,
2832 (codified at 38 U.S.C. § 7292(a)), we have jurisdiction
to review all legal questions decided by the Veterans
Court. See Szemraj v. Principi, 357 F.3d 1370, 1374–75
(Fed. Cir. 2004). We review a claim of legal error in a
decision of the Veterans Court without deference. Id. at
1372.
A claim for benefits, whether formal or informal, re-
mains pending until it is finally adjudicated. Adams v.
Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R.
§ 3.160(c). A claim will also remain pending if the VA
failed to notify a veteran of the denial of his claim. Cook
v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).
It is established, however, that in certain circumstances,
under the implicit denial 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.” Adams, 568 F.3d at 961.
Munro argues that the Veterans Court erred in apply-
ing the implicit denial rule. First, he argues that the
implicit denial rule does not apply to pending informal
claims. Second, he argues that the rule does not apply
where a veteran is not put on notice that the earlier
pending claims are being rejected by an explicit discus-
sion of those earlier claims in a later VA decision. We
address each of these arguments in turn. In doing so, we
must assume, as the Veterans Court did, that the May
1995 and April 1997 VA medical reports were informal
claims for increased disability ratings related to Munro’s
service-connected granuloma of the left lung. While the
government urges that these records related only to
Munro’s non-service-connected COPD and could therefore
7 MUNRO v. DVA
not be informal claims, this raises fact issues over which
we lack jurisdiction.
With regard to Munro’s contention that the implicit
denial rule cannot apply to informal claims—only to
formal claims—we see no proper basis to distinguish
between formal and informal claims. Munro asserts that
38 C.F.R. § 3.157(b) mandates the separate adjudication
of informal claims. The regulation provides in relevant
part:
(b) Claim. Once a formal claim for pension or
compensation has been allowed or a formal claim
for compensation disallowed for the reason that
the service-connected disability is not com-
pensable in degree, receipt of one of the following
will be accepted as an informal claim for increased
benefits or an informal claim to reopen. . . .
(1) Report of examination or hospitalization by
Department of Veterans Affairs or uniformed ser-
vices. The date of outpatient or hospital examina-
tion or date of admission to a VA or uniformed
services hospital will be accepted as the date of
receipt of a claim.
However, 38 C.F.R. § 3.157(b) only establishes that evi-
dence such as VA medical reports will be accepted as
informal claims for increased compensation, not that
informal claims require separate consideration from
formal claims. Munro urges that informal claims are
different because the veteran “may not have been aware .
. . that the records existed.” Claimant-Appellant’s Br. 1.
But the regulations provide an absolute right in a case
such as this for veterans to secure their VA medical
records. See 38 C.F.R. § 1.513(b)(1)(ix). Here, Munro
notably does not claim that he was unaware of the medi-
cal records alleged to constitute the informal claims, and
MUNRO v. DVA 8
indeed urged the VA to obtain and consider those records
in connection with the September 1997 formal claim.
In Williams, we applied the implicit denial rule in
holding that “a subsequent final adjudication of a claim
which is identical to a pending claim that had not been
finally adjudicated terminates the pending status of the
earlier claim,” 521 F.3d at 1351 (emphasis added), while
recognizing that a “[p]ending claim” can originate as a
“formal or informal” claim, see id. at 1350 (quoting 38
C.F.R. § 3.160(c)). In Adams, we explicitly applied the
rule to an informal claim. See 568 F.3d at 963 (affirming
a Veterans Court holding that an RO “decision alluded to
the underlying claims in a manner that put Mr. Adams on
notice that his informal claim for bacterial endocarditis
. . . was also denied” (emphasis added)). Therefore, we
hold that the implicit denial rule may be applied to ter-
minate the pending status of both formal and informal
claims.
This leaves us the question of whether the implicit
denial rule is applicable here. In Deshotel v. Nicholson,
457 F.3d 1258 (Fed. Cir. 2006), we held that where a
veteran files two closely related claims but the VA deci-
sion rules explicitly on only one of those claims, the im-
plicit denial rule requires that the other claims also be
treated as denied. There, the veteran in July 1984 sought
service connection for disabilities related to a head
trauma. He sought compensation for psychiatric disabili-
ties as well as physical disabilities. Id. at 1259. The RO’s
decision granted service connection for physical disabili-
ties resulting from the head trauma, but did not address
any claim for psychiatric disability. Id. at 1259–60.
Following a 2000 grant of service connection for the
psychiatric condition, the veteran argued that his effec-
tive date for that disability should be July 1984. We
rejected his contention that the July 1984 psychiatric
9 MUNRO v. DVA
claim remained pending, holding that “[w]here the vet-
eran files more than one claim with the RO at the same
time, and the RO’s decision acts (favorably or unfavora-
bly) on one of the claims but fails to specifically address
the other claim, the second claim is deemed denied, and
the appeal period begins to run.” Id. at 1261 (citing An-
drews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).
Thereafter, in Williams, we held that “a subsequent
final adjudication of a claim which is identical to a pend-
ing claim that had not been finally adjudicated terminates
the pending status of the earlier claim.” 521 F.3d at 1351.
In that case, the veteran filed a claim in March 1977 for
service connection related to a nervous condition. Id. at
1349. The RO disallowed the claim three months later
because the veteran failed to provide information, but the
veteran never received notice that the claim had been
disallowed. Id. The veteran filed another claim for
service connection for his nervous condition in October
1978, which the RO denied on the merits. Id. In 1994,
the VA granted the veteran service connection for schizo-
phrenia, at which point he argued that he was entitled to
an earlier effective date relating back to his March 1977
claim, which he argued remained pending because he was
not notified of its denial. Id. Rejecting the argument that
the March 1977 claim remained pending, we explained:
The later disposition, denying the claim on its
merits, also decides that the earlier identical
claim must fail. The notice given that the later
claim has been disallowed informs the veteran
that his claim for service connection has failed.
This notice affords the veteran the opportunity for
appeal to the BVA, and if necessary to the Veter-
ans Court and this court, so that he might demon-
strate that his claim for service connection should
have been sustained.
MUNRO v. DVA 10
Id. at 1351. Thus, under the implicit denial rule, the
denial of a claim will terminate the pending status of any
identical pending claims. See also Charles v. Shinseki,
587 F.3d 1318, 1323 (Fed. Cir. 2009) (“[W]hen the sub-
stance of a later-filed claim is addressed in an RO deci-
sion, the claimant can infer that the earlier-filed claim
based on the same disability has also been adjudicated.”
(citing Williams, 521 F.3d at 1350)).
Adams v. Shinseki, 568 F.3d 956, clarified the notice
requirement for the implicit denial rule. In that case, the
veteran filed a claim for service connection in April 1951
for rheumatic heart disease, which the VA denied in June
1951. Id. at 959. Not long thereafter, the veteran was
hospitalized in a VA medical facility and diagnosed with
rheumatic heart disease and endocarditis. The RO re-
viewed the VA medical reports, but found that they did
not reveal any new and material evidence about whether
the heart disease was connected to the veteran’s service.
Id. In October 1951, the veteran submitted an affidavit to
the RO referring the VA to the hospital report and both
diagnoses, but again the RO sustained the denial of the
veteran’s heart disease claim. Id. The veteran appealed
to the Board, contending that he was entitled to service
connection for a “heart condition.” The Board denied the
appeal, noting that it had considered the entire record,
including the VA medical reports and the veteran’s affi-
davit, and found no evidence of “active rheumatic fever or
other active cardiac pathology during service.” Id.
In 1997, the VA awarded service connection for endo-
carditis, and the veteran sought a 1951 effective date on
the basis that his 1951 endocarditis claim remained
pending. Id. Relying on Deshotel, we held that the RO’s
decision in October 1951 was a denial of both the rheu-
matic heart disease claim and the endocarditis claim,
even though the RO decision did not explicitly address
11 MUNRO v. DVA
endocarditis. Id. at 961–64. In doing so, we noted that
“the implicit denial rule is, at bottom, a notice provision.”
Id. at 965. Thus, the proper notice standard is “whether
[a VA decision] provided sufficient information for a
reasonable claimant to know that he would not be
awarded benefits for his asserted disability.” Id. at 963.
This does not require a VA decision to expressly discuss a
pending claim for it to be deemed denied. “The ‘implicit
denial’ rule provides that . . . a claim for benefits will be
deemed to have been denied . . . even if the [VA] did not
expressly address that claim in its decision.” Id. at 961.
We therefore concluded that the veteran had received
sufficient notice that his claims had been denied, because
of the close association of his claims and the fact that in
1951 both the RO and the Board had considered his
affidavit and hospital records. Id. at 963–65.
Here, as in Williams, the informal claims raised by
the May 1995 and April 1997 medical reports and the
formal claim filed in September 1997 were identical.
Action by the VA denying a claim identical to an earlier
claim as a matter of law provides notice that the earlier
claim has been denied. As noted above, we must assume
that all of Munro’s claims were for an increased rating
related to his service-connected granuloma of the left
lung, rather than for COPD. Munro contends, however,
that his claims were not the same, because the April 1997
informal claim raised an extraschedular claim for TDIU
that was not addressed by the November 1997 RO deci-
sion. But this is not the case, as the RO decision explic-
itly denied extraschedular compensation for TDIU. The
RO decision stated that “[t]he regular schedular standard
is shown to be adequate to compensate the veteran’s
disability. An exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization has not
MUNRO v. DVA 12
been presented.” J.A. 43. Therefore, because Munro’s
earlier informal claims were identical to his later claim,
the VA’s denial of his later claim was sufficient to notify
him that his earlier informal claims were also denied.
While the implicit denial rule is applicable because
Munro’s May 1995 and April 1997 informal claims were
identical to his September 1997 formal claim, Munro also
had other reasons to understand that his informal claims
were being denied in the November 1997 RO decision.
That decision cited “[o]utpatient treatment reports from
the Fargo VA Medical Center dated 03-19-96 to 07-18-97”
as evidence the VA had considered. J.A. 43. This would
have included the medical report upon which Munro’s
April 1997 informal claim was founded. The fact that the
VA denied Munro’s September 1997 formal claim while
considering this report was a clear indication that any
informal claim raised by the April 1997 report was also
denied. In addition, when Munro filed his September
1997 claim, he based that claim in part on his May 1995
report by requesting the VA to obtain and consider his
“outpatient records from VAMC Ft. Meade for the period
1993 to 1997” as evidence. J.A. 108. Although it may
have been error for the VA to fail to secure and consider
all of the records, that is an issue that Munro should have
raised on appeal. A reasonable claimant would read the
November 1997 RO decision as denying the entire claim
for increased benefits based on the records that the vet-
eran alleged were pertinent. Munro therefore had multi-
ple reasons to know that any pending informal claims he
may have had were denied by the November 1997 RO
decision.
Veterans with service-connected disabilities may visit
VA hospitals regularly for examination or treatment.
This will result in the creation of multiple treatment
records. This may lead to multiple informal claims under
13 MUNRO v. DVA
38 C.F.R. § 3.157, as here in this case. It is not necessary
for the VA to address every one of these informal claims
separately, nor is it reasonable to expect them to do so,
particularly where the claims relate to the same service-
connected disability. The failure to mention every pend-
ing informal claim in a VA decision does not preserve
those claims. Here, even though the May 1995 and April
1997 informal claims were not expressly discussed, upon
reading the RO’s November 1997 decision, a reasonable
claimant would know that he would not be awarded
increased benefits for his asserted disability based on
those VA medical records. Therefore, those informal
claims were deemed denied by that decision. The Veter-
ans Court’s judgment is affirmed.
AFFIRMED
COSTS
No costs.