“In the Department of Veterans Affairs’ (‘VA’) intentionally pro-claimant system for adjudicating benefits, a veteran’s period for appealing the denial of a benefits claim only begins to run when the agency issues a notice of decision with respect to the claim at issue. Otherwise, the claim remains pending, permitting claimants to recover past benefits that were wrongly denied if entitlement is later established. Since at least 1990, the statute and regulation governing VA notices of decision have required the agency to provide, at a minimum, a ‘statement of the reasons for the decision,’ and to ‘clearly set forth’ the ‘decision made’ and the ‘reasons,’ whenever denying a benefit. Pub. L. No. 101-237, § 115(a), 103 Stat. 2062, 2065-66 (effective January 31, 1990) (codified as amended at 38 U.S.C. § 5104 (1991)); 38 C.F.R. §§ 3.103(b), (f) (1990); see also 38 U.S.C. § 5104 (2017) (strengthening notice requirements); 38 C.F.R. § 3.103(f) (same). Under the judge-made ‘implicit denial rule,’ however, the VA has deemed past claims ‘implicitly’ denied—and the appeals period expired— whenever the agency concludes that a ‘reasonable claimant’ would have inferred that the claim had been denied based on the VA’s notice of decision on another claim.”
“The question presented is:”
“Under the statutory and regulatory notice requirements governing VA decisions since 1990, is the VA permitted to retroactively deem a claim ‘implicitly denied’ when the agency never issued a notice explicitly setting forth the claim at issue or the reason for its denial?”
