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Recently the Federal Circuit decided the appeal of a veteran who was diagnosed with both service connected bipolar affective disorder, i.e. manic depressive disorder and service connected posttraumatic stress disorder but who challenged the VA’s decision to provide only one rating for both mental disorders.

The VA’s reasoning which was affirmed by the Federal Circuit in Amberman v. Shinseki __F.3d.___, 2008-7111 (June 29, 2009) was that because the “manifestations” of the veteran’s manic depressive disorder were not found to be distinguishable from the manifestations of her PTSD, separate ratings for those separate mental disorders was prohibited. The Federal Circuit relied upon their interpretation of 38 C.F.R. § 4.14, which precludes “pyramiding” i.e, rating the same symptoms more than once.

In Young v. Shinseki, ___Vet. App. ____, decided May 11, 2009, the Veterans Court decided that the VA committed an error in failing to consider a report for a VA Vocational Rehabilitation Specialist as part of the original claim where the report was submitted to the VA during the 1 year appeal period following the granting of a 30% rating for PTSD. The Court determined that the submission of the report, which suggested that the veteran had an impairment in social and occupational functioning which would entitle him to a higher rating, fell under 38 C.F.R. § 3.156(b) requiring the VA to consider new and material evidence submitted during the appeal period as having been submitted in connection with the pending claim. Therefore, although the veteran had not submitted a notice of disagreement in time to keep his appeal pending, the submission of the report kept the case pending and open.

Also, in the Young case the Veterans Court decided that the failure of the VA to furnish the veteran a copy of a recently prepared medical report before the BVA considered it and relied upon it violated “the fair process principle” upon which the VA’s nonadversarial claim system is predicated. Specifically, the veteran must be given notice and an opportunity to be heard at every step in the process.

In a recent decision in Knowles v. Shinseki, ___F.3d.___, 2008-7119, decided June 26, 2009, the Federal Circuit reiterated its former holdings that the only exceptions to the rule of finality of decisions are , clear and unmistakable error (CUE), a claim to reopen, reconsideration by the BVA and correction of obvious errors in the record by the BVA, but there is no separate “finality claim”

In Brokowski v. Shinseki, __Vet. App.___, decided June 8, 2009, the Veterans Court decided that a claim for benefits for service connected depression and anxiety and “all disabilities of record” was not sufficient to raise a claim for benefits for peripheral neuropathy, even though medical records at the time of filing the claim contained diagnoses of neurological disease in the lower extremity. Specifically, the Court determined that, as to peripheral neuropathy, the veteran failed to meet the requirement of identifying the benefit sought because the veteran did not describe the nature of the disability for which he is seeking benefits. That requirement could be satisfied “by referring to a body part or system that is disabled or by describing symptoms of the disability

The Court went on the say that the phrase “all disabilities of record” would be sufficient if “selected records are submitted to support the claim and they clearly discuss disabilities or specific symptoms other than those listed on the application”

In the recent case of Lee v. Shinseki __F.3d.___, 2008-7162, decided June 15, 2009, the Federal Circuit explained the application of its decision in Deshotel v. Nicholson, 457 F.3d 1258(Fed.Cir. 2006) that a claim may be “implicitly denied” or “deemed denied”.

If Mr. Lee’s claim for benefits based on a heart disease diagnosed as endocarditis residuals was not decided in the 1950s, his claim for benefits which was ultimately granted with an effective date of January 1989 would have an effective date over 30 years earlier resulting in substantially more past due benefits.

While in service a heart murmur was diagnosed and he was hospitalized for two weeks because of a respiratory infection and was given a diagnosis of inactive rheumatic valvulitis with deformity in the aortic valve. He was discharged from the Air Force because of preexisting heart disease.

His original claim in April 1951 was for benefits for “rheumatic heart” and was supported by a medical report containing a diagnosis of “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency”. The RO denied the claim in June 1951 on the basis that the veteran had not active symptoms of “rheumatic valvultis or associated disease” during service. Medical records from August 1951 listed diagnoses of “rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency and subacute bacterial endocarditis due to streptococcus mitis. secondary to rheumatic heart disease. Following that evidence and an October 1951 affidavit from the veteran referring to the rheumatic heart disease and the endocarditis the RO again denied the claim.

Following an appeal to the BVA in which the veteran claimed entitlement to benefits for a service connected “heart condition” the Board denied the claim concluding that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and the “rheumatic valvulitis” was incurred prior to and was not aggravated during military service.

In 1989 after a request to reopen the BVA determined that the claim was for “entitlement to service connection for endocarditis residuals” and in 1997 awarded benefits, effective 1989, for “heart disease claimed as residuals of endocarditis, including heart valve damage”. The Board’s reasoning was that the veteran’s preexisting congenital heart disease with a bicuspid aortic valve predisposed him to bacterial endocarditis which was incurred in service and which resulted in additional hear damage.

Following his appeal on the effective date, the Veterans Court determined that the 1951 decision regarding the claim for rheumatic heart disease had implicitly denied his informal claim for benefits based on service connected endocarditis. The Federal Circuit agreed.

First the Federal Circuit noted that because the 1951 decision specifically stated that the Regional Office has considered the veteran’s affidavit and that affidavit referred to both rheumatic heart disease and endocarditis when the veteran received notice that the formal claim for rheumatic heart disease was denied the veteran was put on notice that the claim for endocarditis also was denied.

The second factor that the Federal Circuit noted was the “relatedness of the claims” and the court observed that bacterial endocarditis id frequently associated with rheumatic heart disease.

The third factor noted was the timing of the claims with the court noting that it is not necessary for claims deemed denied to have been filed in a single application to apply the rule of deemed denial. Here the claims which were filed roughly six months apart were found to have been sufficiently closely associated.

The Federal Circuit identified the key question in applying the deemed denial rule to be “whether it would be clear to a reasonable person” that VA action expressly referring to one claim is intended to dispose of others as well.