CAVC- Cogburn v Shinseki–Implicit Denial

Here’s a brand new one that has some interesting facets to it. Veterans who take their appeals up to the Court should realize that they have to have something unique to present; some theory of entitlement that has a new wrinkle to it. Simply arriving with a laundry list of perceived slights and very little of substance won’t even get your foot in the door. Fortunately for Mr. Cogburn, he had much more. This means it provoked a panel decision rather than a single judge decision. To make a long story short, Mr. Cogburn had some verifiable issues that the Court recognized as having been overlooked by the Board of Appeals. Therefore they have vacated his denial decision and are ordering the BVA to readjudicate his claim on appeal with remand instructions on how to do it right.

Most importantly, this decision illuminates an important adjunct of jurisprudence. The principle of “implicit denial” is actually very simple. When a Vet files a claim with multiple issues, related or not, the VARO may grant one, some or all. In the event they grant, say, one for instance, and deny the rest without actually addressing them, this is known as implicit denial. If you , God forbid, file an NOD and then a Substantive Appeal and never address these denials, you cannot come back and visit them later. They are dead in the water. Never mind that you happened to overlook them or spaced out. The Court and the Federal Circuit have ruled that it isn’t prejudicial. You’re supposed to be smart enough to figure out that if they didn’t grant it, then you were denied. So what if they forgot to actually write it down and tell you. A “reasonable” person would deduce that he didn’t get what he filed for.

Mr. Cogburn will get another day in court in front of the BVA, but they will address this overlooked denial this time around. As for whether he will prevail depends on how good his law dog is.

The Court in Cogburn had this to say about VSOs and I would hope every Veteran takes it to heart:

These are all veterans service organizations, and there is no indication that Mr. Cogburn was represented by an attorney at any point prior to his appeal to this Court. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (holding that “representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans’ service organizations provide invaluable assistance to claimants, they are ‘not generally trained or licensed in the practice of law.'” (quoting Cook v. Brown, 68 F.3d . 447, 451 (Fed. Cir. 1995))).

Veterans may think we here have an ax to grind with VSOs and that may be true. Some of us here have had unfortunate, costly mishaps at the hands of these well-meaning gentlemen. We’re virtually positive that they meant well, but a Vet would be wise to heed the admonition of Clint Eastwood’s character Harry Callahan when he said: ” A man’s gotta know his limitations”. The road to VSO hell is paved with these sentiments.

Attached below is the Cogburn v. Shinseki record. There is also an interesting paragraph that addresses due process and how Veterans’ claims fit into that venue. Very good reading.

http://www.uscourts.cavc.gov/documents/Cogburn_08-1561_published_opinion_12-13-2010.pdf