Fournier: When is a Denial a Denial?

Fournier: When is a Denial a Denial?

The case of Richard C. Fournier v. Eric K. Shinkseki, Opinion Number 08-1087, decided June 18, 2010, affirmed a denial of an earlier effective service-connection date.

The facts are simple. The veteran had served for approximately 5 years when while walking on the street near his base he was hit on the head during an assault. He was subsequently honorably discharged for unsuitability based on having an inadequate personality disorder. The veteran was ultimately service-connected for a mood disorder secondary to a head injury but was seeking an earlier effective date based on a filing in 1971. Importantly, he had initially filed for service-connection in 1968 and again in 1971 before finally being connected after a 1980 filing.

The veteran argued the 1971 denial was defective based on reasons of notice and thus still pending. Specifically, the veteran argued the 1971 denial was so misleading as to fail to notify him of the reason for disallowing the claim and further that the RO should have had a duty to read the claim for a nervous disorder sympathetically to include psychoneurotic disorders. The argument essentially boiled down to saying a better explanation of the denial would have allowed the veteran to know what evidence he needed to substantiate his claim. The problem was that this was a duplicate claim in that a claim had been denied in 1968 and the veteran had not submitted any new evidence.

The Court rejected the claim and focused the question of a pending claim on law which states a claim remains alive until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that he claim was adjudicated or an explicit adjudication of a subsequent claim for the same disability. The Court then determined the 1971 claim denial letter clearly complied with then existing regulations and that a reasonable person would have not have delayed filing an appeal of the decision. The Court then elaborated on the sympathetic reading requirement to say it does not “obligate [the VA] to read a claimant’s mind.”

The case also involved language from the M21-1 manual which required a formal rating decision setting forth the denial; however, the Court found the language applied to claims requiring reconsideration, new and material evidence, or increased ratings and that this claim was merely duplicative without presenting new evidence.

The Court used the opportunity to clarify its view of the M21-1 manual. It repeated that the manual can result in either substantive or interpretative rules, with substantive rules being ones the VA has to follow. This is in contrast to the VA which likes to see the manual as merely interpretative. Of course, whether a rule is substantive or interpretative is essentially a call for the Court which will be guided by looking to see if the manual “created” additional rights beyond those of preexisting regulations on the same subject. Here, the Court held the manual provision did not establish or alter the criteria for benefits but illuminated a suggested procedural practice (issuing a formal rating decision); therefore, the manual provision does not limit the agency’s action.

Decision drafted by Chief Judge Greene and joined in by Judges Hagel and Davis.