1. “Whether the implicit denial doctrine is inapplicable to a claim subject to the Appeals Modernization Act (AMA) because the AMA’s notice requirements, statutory structure, and principles of due process prohibit implicit denials of such claims.”
2. “Whether the implicit denial doctrine is inapplicable to a request to reopen a character of discharge (COD) determination when the VA provides only a service connection decision for the purposes of health care benefits without a COD determination.”
3. “Whether Mr. Hamill’s petition was not moot because the picking off exception to mootness applies.”
1-2. “[W]e hold that under the AMA, a veteran has an appealable decision for a particular issue only if the decision gives him explicit notice that the issue is being adjudicated and how it is being decided. Mr. Hamill’s 2021 VA decision did not meet this explicit notice requirement and could not, as a matter of law, implicitly deny his request to reopen his character of discharge determination.”
3. “Our conclusion that Mr. Hamill’s 2021 VA decision could not implicitly deny his character of discharge claim necessarily means his petition to the Veterans Court, which sought to compel adjudication, was not moot when it was filed in 2022. This, however, does not end the inquiry. There remains an open question regarding the effect of the VA’s February 2023 letter to Mr. Hamill, which explicitly found Mr. Hamill had not submitted new and material evidence to warrant reopening his discharge determination. . . . ‘[an appellate court] also has discretion to remand issues, even jurisdictional ones, to the [lower] court when that court has not had the opportunity to consider the issue in the first instance.’ . . . We exercise that discretion here and remand to the Veterans Court to consider, in the first instance, whether an exception to mootness applies.”
