Veteranclaims’s Blog

January 16, 2022

Single Judge Application; Cogburn factors; In Cogburn v. Shinseki, the Court outlined four factors for determining whether a claim was implicitly denied by a prior decision: (1) the specificity or relatedness of the claims, (2) the specificity of the prior adjudication, (3) the timing of the claims, and (4) whether the claimant was represented. 24 Vet.App. 205, 212-13 (2010).; Here, the Board cited the Cogburn factors and ostensibly applied them to the facts. See R. at 10-11. But the Court finds the Board’s reasons or bases to be lacking. For the first factor, the Board’s entire analysis was that “[t]he related nature of the right ear injury and hearing loss with tinnitus is clear.” R. at 11. Although a reader may draw connections between an ear injury and hearing loss on the one hand and tinnitus on the other, the Board did not explain why it concluded that the related nature was “clear” or how this conclusion impacted its overall analysis. See R. at 685. The Board similarly did not address—assuming that tinnitus is “clear[ly]” related to ear injuries or hearing loss—why the September 1972 rating decision did not consider tinnitus as part of Mr. Witcraft’s original claim. See R. at 11. Moreover, the extent of the Board’s analysis for the third and fourth factors was that “the inferred claim was filed (and considered) at the same time as the original claim and the Veteran did not have representation.” R. at 11. The Board did not explain the significance of these assertions or whether the third and fourth factors weighed for or against a finding of implicit denial. See R. at 11. The lack of representation clearly weighs in the veteran’s favor, which the Board did not acknowledge. See R. at 11.;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:32 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6171
DARYL D. WITCRAFT, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Daryl D. Witcraft, through counsel, appeals a July 28,
2020, Board of Veterans’ Appeals decision denying an effective date earlier than July 12, 2010,
for tinnitus and denying his clear and unmistakable error (CUE) motion as to a September 1972
rating decision, which the Board determined implicitly denied service connection for tinnitus. The
appeal is timely, the Court has jurisdiction, and single-judge disposition is appropriate. See 38
U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board failed to fully address Mr. Witcraft’s CUE
argument and insufficiently supported its finding that the September 1972 rating decision
implicitly denied a claim for tinnitus. Because we find that the Board provided inadequate reasons
or bases on both points, we will set aside its decision and remand the matter for readjudication.
I. FACTS
Mr. Witcraft served on active duty from February 1971 to December 1971. Record (R.) at

  1. In January 1972, Mr. Witcraft filed a claim for service connection for partial hearing loss of
    the right ear and a right ear injury. R. at 673.
    2
    At a March 1972 VA examination, Mr. Witcraft complained of reverberation and constant
    ringing in his right ear and stated that he had been exposed to loud noises as part of his in-service
    job as a heavy equipment operator. R. at 656. The examiner diagnosed tinnitus in the right ear but
    noted no hearing defect or ear injury. R. at 656.
    In a September 1972 rating decision, VA denied Mr. Witcraft’s claim for partial hearing
    loss and a right ear injury, stating that the March 1972 examination revealed no hearing defect or
    ear injury. R. at 583-84, 586. Mr. Witcraft did not appeal this decision and it became final. R. at
    8.
    In July 2010, Mr. Witcraft filed a supplemental claim to reopen claims for bilateral hearing
    loss and bilateral tinnitus. R. at 391. The same month, the regional office (RO) sent him a letter
    stating that, because he had been denied service connection for hearing loss, he needed new and
    material evidence to support his supplemental claim. R. at 376.
    At an October 2010 VA examination, Mr. Witcraft stated that his tinnitus began in 1971 as
    a result of noise exposure from working on heavy equipment. R. at 357. Based on Mr. Witcraft’s
    in-service noise exposure, the shift in his hearing thresholds before and after service, and his report
    of ringing in the ear soon after separation, the examiner opined that his tinnitus was likely related
    to service. R. at 359.
    In October 2010, the RO granted service connection for tinnitus with a 10% rating effective
    July 12, 2010, and continued to deny service connection for bilateral hearing loss. R. at 339. In
    February 2011, Mr. Witcraft filed a Notice of Disagreement (NOD), R. at 317, and, in September
    2011, the RO granted service connection for bilateral hearing loss with a 0% rating effective July
  2. R. at 293-95.
    In February 2013, Mr. Witcraft requested an increased rating for his bilateral hearing loss
    and asked VA to review his tinnitus claim and to explain why he had “no accrued benefits” from
    his original 1972 claim, given that he had eventually received service connection. R. at 273. In
    April 2014, the RO denied an effective date earlier than July 2010 for tinnitus. R. at 112-14.
    In July 2014, Mr. Witcraft filed another NOD. R. at 89-90. He noted that he had filed a
    claim for a “right ear injury” in January 1972 and was diagnosed with tinnitus in March 1972, but
    that the September 1972 decision did not consider tinnitus as part of his claim. R. at 90. He argued
    that VA committed CUE by not granting service connection for tinnitus in 1972 because he was
    diagnosed with tinnitus only two months after separation, because the examiner should have noted
    3
    the possibility of service connection for tinnitus, and because VA never informed him of his
    tinnitus diagnosis and violated its duty to assist in developing his claim. R. at 90.
    In April 2015, the RO issued a Statement of the Case continuing to deny an effective date
    before July 2010 for tinnitus and stating that Mr. Witcraft had identified no basis for CUE. R. at
  3. In May 2015, Mr. Witcraft appealed to the Board, repeating the arguments from his July 2014
    NOD and again asserting that it was CUE for VA not to grant service connection for his tinnitus
    in 1972. R. at 62-63.
    In December 2018, the Board denied an effective date earlier than July 2010 for tinnitus.
    R. at 41. Mr. Witcraft then appealed to the Court. R. at 6. In December 2019, the Court granted a
    joint motion for remand in which the parties agreed that the Board had provided inadequate reasons
    or bases because it failed to address whether the September 1972 rating decision adjudicated Mr.
    Witcraft’s tinnitus claim or whether the claim remained unadjudicated until the October 2010 rating
    decision. R. at 31-32, 36.
    In February 2020, Mr. Witcraft submitted a statement to VA, arguing that his tinnitus was
    a “chronic . . . organic disease[] of the nervous system . . . that [was] manifest to a compensable
    degree within one year of discharge from active service” and that, under 38 C.F.R. §§ 3.309(a) and
    3.307(a)(3), he should have been granted presumptive service connection in September 1972. R.
    at 22-23.
    In July 2020, the Board again denied an effective date earlier than July 2010 for tinnitus.
    R. at 5. The Board found that Mr. Witcraft’s January 1972 claim had included an implicit claim
    for tinnitus but that the September 1972 rating decision had implicitly denied that claim. R. at 8-
  4. It determined that the September 1972 rating decision became final and that there was no other
    tinnitus claim until July 2010. R. at 8-11. The Board then denied Mr. Witcraft’s CUE motion as to
    the September 1972 rating decision because it found that he had not established CUE. R. at 11-13.
    This appeal followed.
    II. ANALYSIS
    Mr. Witcraft argues that the Board provided inadequate reasons or bases for denying his
    motion for CUE because it failed to address his February 2020 argument that he was entitled to
    presumptive service connection under VA regulations. Appellant’s Brief (App. Br.) at 6-9. He also
    4
    argues that the Board’s reasons or bases were inadequate because it insufficiently supported its
    finding that the September 1972 rating decision implicitly denied his tinnitus claim. R. at 10-16.
    The Secretary responds that Mr. Witcraft’s argument for presumptive service connection
    was a separate CUE theory that was never adjudicated by the RO, so the Board lacked jurisdiction
    over that theory. Secretary’s (Sec.) Br. at 9-15. The Secretary also asserts that the Board provided
    proper analysis and adequate support for its finding that the tinnitus claim was implicitly denied.
    Sec. Br. at 15-21.
    CUE is a rare type of error that allows final VA decisions to be reversed or revised. 38
    U.S.C. § 7111; George v. Wilkie, 30 Vet.App. 364, 369 (2019); 38 C.F.R. § 3.105 (2021). To
    establish CUE, a claimant must show that “[e]ither the correct facts, as they were known at the
    time, were not before the adjudicator or the statutory or regulatory provisions extant at the time
    were incorrectly applied.” Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). The claimant
    must also show that the error was one that would have “manifestly changed the outcome. ” Id.
    With any finding on a material issue of fact and law presented on the record, the Board
    must support its determination with an adequate statement of reasons or bases that enables the
    claimant to understand the precise basis for that determination and facilitates review in this Court.
    38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). This means that the
    Board must analyze the credibility and probative value of the evidence, account for the evidence
    that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any
    material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d
    per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). But the appellant has the burden of showing error
    on appeal. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) aff’d per curiam, 232 F.3d 908
    (Fed. Cir. 2000) (table).
    A. Mr. Witcraft’s February 2020 Statement
    Mr. Witcraft argues that remand is necessary because the Board failed to address his
    February 2020 statement that, under §§ 3.309(a) and 3.307(a)(3), he was presumptively entitled to
    service connection for tinnitus in 1972 and it was CUE for VA not to grant it. App. Br. at 6-10.
    The Secretary, in turn, contends that the Board did not need to address this argument
    because it constituted a separate CUE motion over which the Board had no jurisdiction. Sec. Br.
    at 9-15. In the Secretary’s view, the CUE motion on appeal—made within Mr. Witcraft’s July 2014
    NOD—encompassed only one theory of error: that VA failed to inform him of his tinnitus
    5
    diagnosis and violated its duty to assist in developing his claim. Sec. Br. at 10. The Secretary
    argues that the February 2020 presumptive service-connection argument proposed a separate and
    distinct theory of error and thus should be considered a new CUE motion that must first be
    adjudicated by the RO. Sec. Br. at 9-13 (citing, inter alia, Jarrell v. Nicholson, 20 Vet.App. 326,
    333 (2006)). The Secretary thus argues that the Board had no jurisdiction over the presumptive
    service-connection theory and did not need to address it. Sec Br. at 12-14.
    In reply, Mr. Witcraft asserts that his February 2020 statement about presumptive service
    connection was not a new CUE motion but clarified his July 2014 argument that VA committed
    CUE because he was diagnosed with tinnitus only two months after he left service. App. Reply Br.
    at 2-3. He also argues that it is the Board’s place, not the Court’s, to decide whether his February
    2020 statement was a separate CUE motion. App. Reply Br. at 3-4.
    The Court finds that the Board provided inadequate reasons or bases by failing to consider
    whether it had jurisdiction over Mr. Witcraft’s February 2020 statement. Although the Court has
    an obligation to determine its own jurisdiction, Henderson ex rel Henderson v. Shinseki, 562 U.S.
    428, 435 (2011), our jurisdiction depends on the Board’s jurisdiction, see 38 C.F.R. §§ 7252(a),
    7266(a). And, as the Secretary notes, the Board’s jurisdiction over Mr. Witcraft’s February 2020
    statement depended on whether the statement was a new motion or simply a clarification of the
    motion properly before the Board. See Jarrell, 20 Vet.App. at 333 (“[E]ach wholly distinct and
    different CUE theory underlying a request for revision is a separate matter and . . . each must be
    presented to and adjudicated by the RO in the first instance . . . [or else] the Board lacks jurisdiction
    over the merits of the matter.”); Sec. Br. at 9-13. But whether the February 2020 statement
    constituted a new and distinct CUE motion is a question that the Board must decide in the first
    instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (holding that the Board rather
    than the Court is the proper forum for initial factfinding). In sum, we cannot determine our
    jurisdiction until the Board decides this matter. Thus, the Board’s failure to address Mr. Witcraft’s
    February 2020 statement frustrates judicial review, and the Board’s reasons or bases were
    inadequate. See Gilbert, 1 Vet.App. at 56-57.
    Accordingly, we will remand for the Board to provide adequate reasons or bases by
    deciding whether Mr. Witcraft’s February 2020 statement was a new CUE motion or was simply
    a clarification of his existing motion. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding
    6
    that remand is the appropriate remedy where the Board did not provide an adequate statement of
    reasons or bases for its determinations).
    Mr. Witcraft is free on remand to submit additional evidence and arguments, including
    those raised in his briefs, and he has 90 days from the date of the postremand notice VA provides
    to do so. See Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also
    Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such evidence or
    argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court also reminds
    the Board that a remand must be performed in an expeditious manner, 38 U.S.C. § 7112, and that
    “[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
    v. Derwinski, 1 Vet.App. 394, 397 (1991).
    B. The Board’s Implicit Denial Analysis
    The Court now turns to Mr. Witcraft’s second argument—that the Board provided
    inadequate reasons or bases for finding that the September 1972 rating decision implicitly denied
    service connection for tinnitus. App. Br. at 10-16.
    In Cogburn v. Shinseki, the Court outlined four factors for determining whether a claim was implicitly denied by a prior decision: (1) the specificity or relatedness of the claims, (2) the specificity of the prior adjudication, (3) the timing of the claims, and (4) whether the claimant was represented. 24 Vet.App. 205, 212-13 (2010).
    Here, the Board cited the Cogburn factors and ostensibly applied them to the facts. See R. at 10-11. But the Court finds the Board’s reasons or bases to be lacking. For the first factor, the Board’s entire analysis was that “[t]he related nature of the right ear injury and hearing loss with tinnitus is clear.” R. at 11. Although a reader may draw connections between an ear injury and
    hearing loss on the one hand and tinnitus on the other, the Board did not explain why it concluded that the related nature was “clear” or how this conclusion impacted its overall analysis. See R. at 685. The Board similarly did not address—assuming that tinnitus is “clear[ly]” related to ear injuries
    or hearing loss—why the September 1972 rating decision did not consider tinnitus as part of Mr. Witcraft’s original claim. See R. at 11. Moreover, the extent of the Board’s analysis for the third and fourth factors was that “the inferred claim was filed (and considered) at the same time as the
    original claim and the Veteran did not have representation.” R. at 11. The Board did not explain
    the significance of these assertions or whether the third and fourth factors weighed for or against
    7
    a finding of implicit denial. See R. at 11. The lack of representation clearly weighs in the veteran’s favor, which the Board did not acknowledge. See R. at 11.

    Because the Board only summarily mentioned three of the four Cogburn factors, judicial
    review and the claimant’s understanding of the Board’s determination are frustrated. See Gilbert,
    1 Vet.App. at 56-57. Thus, remand is appropriate for the Board to provide an adequate statement
    of reasons or bases on this point, including a sufficient Cogburn analysis. See Tucker, 11 Vet.App.
    at 374. The remand instructions as stated in the previous section apply equally here.
    III. CONCLUSION
    Based on the above considerations, the July 28, 2020, Board decision is SET ASIDE and
    the matter is REMANDED for readjudication.
    DATED: December 29, 2021
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)
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