Munro v. Shinseki

• Decision Date: 06 August 2010
• Docket Number: No. 2009-7110.,2009-7110.
• Citation: 616 F.3d 1293
• Parties: Philip D. MUNRO, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

616 F.3d 1293

Philip D. MUNRO, Claimant-Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2009-7110.

United States Court of Appeals,Federal Circuit.

Aug. 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 Department of Justice, of Washington, DC, argued for respondent-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 Martin J. Sendek, Attorney, Office of the General Counsel, 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 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.

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 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 Medical 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 disability. 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 unemployability. 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, arguing 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 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 Williams, 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 disposition, 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 Veterans 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 Veterans 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 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, remains 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 applying 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 discussion 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 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...