Kevin Steele v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
KEVIN STEELE,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2049
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-32, Judge Scott Laurer.
______________________
Decided: May 1, 2025
______________________
KENNETH M. CARPENTER , Carpenter Chartered, To-
peka, KS, argued for claimant-appellant.
A LBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
B RIAN M. B OYNTON, E RIC P. BRUSKIN, P ATRICIA M.
MC CARTHY; E VAN SCOTT GRANT, B RIAN D. GRIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
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STEELE v. COLLINS 2
Before P ROST, L INN, and REYNA , Circuit Judges.
L INN , Circuit Judge.
Veteran Kevin Steele appeals the decision by the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”), affirming the decision by the Board of Vet-
erans Appeals (“Board”) awarding an effective date no
earlier than March 6, 2013, for service connected head-
aches. Because neither the Board nor the Veterans Court
legally erred by holding that Steele’s 1991 claim for head-
aches was implicitly denied and therefore finally adjudi-
cated in 1991, we affirm.
B ACKGROUND
Kevin Steele is an honorably discharged non-combat
Marine veteran who served from 1978–1979 and
1980–1982. On June 13, 1991, Steele filed an original
claim for, inter alia, a “head injury” that he attributed to a
1980 training incident. Soon after the incident, the Depart-
ment of Veterans Affairs (“DVA”) Examiner reported:
In July, 1980 the patient, while [] on a military
ship, injured his head. While doing a drill, he hit
his head against a metal pipe under the cabin on
the ship. He became dazed momentarily but he did
not completely lose consciousness and he had a 2
inch gash on the frontal area of the skull which was
sutured. The only residual he has because of this
head injury, are occasional headaches but they are
not disabling.
J. App’x at 21 (“1991 Examination”) (emphasis added). The
VA Regional Office (“RO”) reviewed Steele’s medical his-
tory noting that he “was seen on July 17, 1980 after sus-
taining trauma to his head with loss of consciousness,” and
that in 1990 he “had some complaints of a headache” but
that “[t]here were no further complaints of headaches dur-
ing service.” J. App’x at 23–24 (“1991 RO Decision”). The
RO further noted the “puncture scar of the frontal scalp,”
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STEELE v. COLLINS 3
and that “[t]he veteran claimed only occasional headaches
as a residual but these were not disabling.” Id. at 24. The
RO concluded that “[s]ervice connection is granted for the
scar of the scalp as the only residual of the head injury in
service, the scar of the left abdomen, and the scar of the
right elbow. However, these scars are not considered to be
disabling and noncompensable evaluations are assigned.”
Id.
On September 12, 1991, the RO sent Steele a notifica-
tion letter, denying his claim for disability benefits.
J. App’x at 25 (“1991 Notice Letter”). The letter noted three
sets of “SCARS” that were service connected, but “less than
10% disabling,” and concluded that: “SERVICE-
CONNECTION IS GRANTED FOR YOUR SCALP SCAR
AS THE ONLY RESIDUAL OF YOUR HEAD INJURY IN
SERVICE.” Id. at 25–26 (capitalization in original). Steele
did not appeal the RO’s decision.
On March 6, 2013, over 20 years later, Steele filed a
claim for service connection for memory loss, shaking
hands, depression, and fatigue. The Board eventually held
that this claim should have been construed to include a
claim for traumatic brain injury (“TBI”), and Steele was
awarded a 50% disability rating with a March 6, 2013 ef-
fective date. J. App’x at 167.
Three years later, on October 10, 2016, Steele filed a
claim for service connection for headaches. J. App’x at 96.
In January 2017, the RO granted service connection for
headaches effective October 14, 2015—the date of receipt
of the intent to file—and assigned a 50 percent disability
rating. J. App’x at 28–33, 96. Eventually, the Board as-
signed an effective date “no earlier than the date of his re-
siduals of TBI reopening petition, which is March 6, 2013.”
J. App’x at 168.
Steele appealed again, and, during the pendency of his
appeal at the Veterans Court, joined with the government
in filing a Joint Motion for Remand seeking to adjudicate
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STEELE v. COLLINS 4
whether his 1991 claim for service connected headaches re-
mained open and thus entitled him to an earlier effective
date, or, if closed, should be reopened due to clear and un-
mistakable error (“CUE”).1
On September 7, 2021, the Board issued the decision
on appeal here, denying an effective date before March 6,
2013, for headaches and all residuals of TBI. J. App’x
at 191–98 (“September 2021 Decision”). Rejecting Steele’s
argument that his 1991 claim for headaches remained open
because it was not finally adjudicated, the Board held that
the 1991 RO Decision “at the very least, implicitly denied”
Steele’s claim for service connected headaches. J. Appx.
at 195. In making that determination, the Board asked,
“whether it would be clear to a reasonable person that VA’s
action that expressly refers to one claim is intended to dis-
pose of others as well,” id. (citing Adams v. Shinseki,
568 F.3d 956 (Fed. Cir. 2009)), and answered that a rea-
sonable person would have understood that Steele’s claim
for headaches was denied in the 1991 RO Decision denying
compensable service connection for head injury, see id. at
196–97.
Steele appealed to the Veterans Court, arguing that
the Board’s implicit denial in the August 1991 Decision vi-
olated the notice requirements of 38 C.F.R. § 3.103(e)
(1991) under this Court’s decision in Ruel v. Wilkie,
918 F.3d 939 (Fed. Cir. 2019). The Veterans Court held
that the Board properly considered the Cogburn factors to
determine whether a Veteran was put on notice of the im-
plicitly denied claim, and that Steele had failed to raise the
notice argument based on Ruel in the previous rounds of
appeals to the Board or the Veterans Court. J. App’x
at 5–6; see Cogburn v. Shinseki, 24 Vet. App. 205 (2010)
1 The CUE claim took a different procedural route
not relevant here.
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STEELE v. COLLINS 5
(surveying four factors for determining whether a claim
was implicitly denied).
Steele appeals.
DISCUSSION
I
We have jurisdiction to review the legal bases for the
Veterans Court’s decision under 38 U.S.C. § 7292(a), (c),
but our jurisdiction is tightly circumscribed by statute. We
may not review the Veterans Court’s factual determina-
tions or applications of law to fact. 38 U.S.C. § 7292(d)(2).
We may only review the Veterans Court’s interpretation of
a rule of law or statute or regulation “that was relied on by
the [Veterans] Court,” § 7292(a), or issues that raise Con-
stitutional concerns. Prenzler v. Derwinski, 928 F.2d 392,
393 (Fed. Cir. 1991).
II
A
Ordinarily, a VA decision denying benefits must ex-
pressly identify the particular claim being denied, ex-
pressly state the reasons for the denial, and expressly
provide notice of the right to appeal that claim. See
38 C.F.R. § 3.103(f) (1991).2 That provision states:
(f) Notification of decisions. The claimant or
beneficiary will be notified in writing of decisions
affecting the payment of benefits . . . .
2 We apply the version of the regulation in place
when the allegedly deficient 1991 Notice Letter and 1991
RO Decision were issued. Both parties apply this version
in their arguments.
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STEELE v. COLLINS 6
Notice will include the reason for the deci-
sion and the date it will be effective as well as the
right to a hearing.
The notification will also advise the claimant or
beneficiary of the right to initiate an appeal.
Id. (emphases added). Analyzing the substantively iden-
tical 1984 version of § 3.103,3 we held:
[A]s a matter of law, to meet the notice require-
ments of § 3.103(e), an explicit denial must state,
or clearly identify in some manner, the claim(s) be-
ing denied.[FN] The decision must also meet the
other requirements of § 3.103(e), including the
reason for the decision, the date effectuated,
and notice of appellate rights.
Ruel, 918 F.3d at 942 (emphasis added). In the footnote,
we noted: “Our holding is limited to explicit denials, since
that is what the Veterans Court determined occurred
here.” Id. at 942 n.3. This provision “mirrors constitu-
tional due process by requiring notice that a claim has been
denied.” Id.
If the VA “fail[s] to notify the claimant of the denial of
his claim or of his right to appeal an adverse decision,” that
claim will be “considered to be pending,” rather than finally
adjudicated. Adams, 568 F.3d at 960 (citing Cook v. Prin-
cipi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc) (super-
seded by statute on other grounds)). Such a pending claim
holds open the first filing date as a reference point for the
earliest effective date for later-filed claims. Id. (“If a claim
is left pending, it can be addressed when a subsequent
claim for the same disability is adjudicated by the [VA], in
3 Ruel analyzed 38 C.F.R. § 3.103(e) (1984), which
was renumbered to 38 C.F.R. § 3.103(f) in the 1991 version.
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STEELE v. COLLINS 7
which case the effective date or any award of benefits will
be the effective date applicable to the original claim”).
B
Since at least our decision in Deshotel v. Nicholson,
457 F.3d 1258 (Fed. Cir. 2006), this Court has recognized
that the reasons provided for an explicit denial with respect
to one particular claim, may constitute an implicit denial
of another (related) claim, “even if the [VA] did not ex-
pressly address that [related] claim in its decision,” Adams,
568 F.3d at 961.4 The condition precedent for the applica-
tion of this doctrine is that:
[The] regional office decision “discusses a claim in
terms sufficient to put the claimant on notice that
it was being considered and rejected . . . even if the
formal adjudicative language does not specifically
deny that claim.”
Adams, 568 F.3d at 962–63 (quoting with approval Adams
v. Peake, No. 06-0095, slip op. at 5, 2008 WL 2128085 (Vet.
App. Feb. 20, 2008)) (internal quote in Veterans Court de-
cision omitted). We also stated:
The key question in the implicit denial inquiry is
whether it would be clear to a reasonable person
that the [VA’s] action that expressly refers to one
claim is intended to dispose of others as well.
Id. at 964; see also id. (“[T]he implicit denial rule applies
where a regional office’s decision provides a veteran with
reasonable notice that his claim for benefits was denied.”).
When this condition precedent is met, the discussion of the
explicit denial is deemed to provide “adequate notice of,
and an opportunity to respond to, the regional office’s deci-
sion” on the related claim. Id. at 965; see also Cogburn v.
4 We refer to the implicitly denied claim as the “re-
lated” claim throughout this opinion.
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STEELE v. COLLINS 8
McDonald, 809 F.3d 1232, 1236 (Fed. Cir. 2016) (“[W]hen
the implicit denial rule applies, the claimant necessarily
‘received adequate notice of, and an opportunity to respond
to, the [VA’s] decision.’”).
Because notice is deemed sufficient, the related claims
are “deemed to have been denied, and thus finally adjudi-
cated,” closing off the veteran’s earlier claim filing date.
Adams, 568 F.3d at 961.
III
A
Steele argues that the Board and the Veterans Court
legally erred here by not requiring the VA to satisfy its no-
tice obligation under § 3.103(f), specifically, by not requir-
ing the VA to “include the reasons for the decision”
implicitly denying benefits for headaches in its 1991 Notice
Letter. Appellant’s Br. at 8. Relying largely on our holding
in Ruel, 918 F.3d at 942, Steele argues that a claim may
not be implicitly denied unless the RO notice letter satisfies
all the requirements of § 3.103(f) not just for the explicitly
denied claim, but also for the implicitly denied claim.
Steele appears to acknowledge that an explicit denial
may provide notice of the fact that a related claim is being
denied, but argues that our implicit denial precedents do
not extend that imputation of knowledge to the reasons for
the denial, which must be expressly stated in the notice to
satisfy § 3.103(f). See Oral Argument at 33:05–33:52, avail-
able at https://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=23-2049_03072025.mp3 (“The implicit denial
rule is about the knowledge imputed to the veteran of what
was denied, not why [it] was denied.”).
He argues that the RO’s failure to satisfy § 3.103 pre-
vented that decision from finally adjudicating his headache
claim, and that he is therefore entitled to an effective date
of June 13, 1991 for service connected headaches. See 38
C.F.R. § 3.400. Steele thus asks this court to instruct the
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STEELE v. COLLINS 9
Veterans Court to remand to the Board to reconsider an
effective date earlier than March 6, 2013, for service con-
nected headaches.
The government responds that satisfying the prerequi-
sites for implicit denial also satisfies Constitutional and
regulatory notice requirements. See Cogburn, 809 F.3d at
1236 (“[T]he application of the implicit denial rule does not
violate [a claimant’s] right to receive notice pursuant to the
VA’s due process regulation.”); Adams, 568 F.3d at 964–65
(rejecting claimant’s argument that the implicit denial rule
violated due process rights to receive notice of the RO deci-
sion because “the implicit denial rule is, at bottom, a notice
provision”). During oral argument, the government also
argued that the VA need not expressly state the reasons
underlying an implicit denial because: (1) it would effec-
tively eliminate implicit denials by requiring that every de-
nial be expressly justified; and (2) consideration of the
factors in Cogburn v. Shinseki, 24 Vet. App. 205, 212-13
(2010), aff’d on different grounds by Cogburn, 809 F.3d
1232, protects claimants’ rights to receive notice about the
reasons for the implicit denial. See Oral Argument at
24:50-25:25; 27:40-28:05. The government adds that
Steele’s reliance on Ruel is misplaced because that case is
expressly limited to express denials. Ruel, 918 F.3d at 942
n. 3.
We do not find Steele’s argument persuasive and agree,
at least in part, with the government. First, an implicit
denial does not exist in a vacuum. Rather, by its very na-
ture, every implicit denial of a claim rests on the VA’s ex-
planations and findings made in support of an explicit
decision on another claim. See Adams, 568 F.3d at 961.
The reasonable notice of the implicit denial arises from the
reasons given for the explicit decision. Id. at 962–63. The
reasonable notice of the implicit denial may also arise from
a favorable VA adjudication. See, e.g., Deshotel, 457 F.3d
1258 (Fed. Cir. 2006) (explicit grant of service-connected
disability for head trauma nevertheless implicitly denied a
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STEELE v. COLLINS 10
claim for a psychiatric condition where the RO noted the
VA examination’s judgment of no psychiatric symptoms).
It is well settled that the Board’s underlying explicit
determination must include “the reason for the decision” to
satisfy the notice regulation in § 3.103. 38 C.F.R. § 3.103(f)
(1991); Ruel, 918 F.3d at 942 (an explicitly denied claim
must “state, or clearly identify in some manner, the
claim(s) being denied . . . [and] the reason for the deci-
sion.”). To support the legal conclusion that a related claim
was implicitly considered and adjudicated, that same rea-
son must be “sufficient to put the claimant on notice that
[the related claim] was being considered and rejected.” Ad-
ams, 568 F.3d at 962–63. One typical way this occurs is
that the reasons for the explicit denial include a holding or
finding that would be inconsistent with the granting of ben-
efits for the related claim.
Such was the case in Adams. In denying a 1951 claim
for disability compensation for “rheumatic heart,” the
Board found that “medical records do not disclose active
rheumatic fever or other active cardiac pathology during
service.” Adams, 568 F.3d at 959 (emphasis in original).
When Adams sought to reopen his claim in 1989, asserting
a claim for endocarditis (a related heart condition), we af-
firmed the Board’s implicit denial analysis, noting that the
1952 rejection of any “other active cardiac pathology” “rea-
sonably informed” Adams that a claim “for any heart con-
dition, including endocarditis, was denied.” Id. at 963
(quoting Board’s finding and Veterans Court’s decision).
The finding of no “other active cardiac pathology” was in-
consistent with an award for benefits for rheumatic heart.
Similarly, in Deshotel v. Nicholson, 457 F.3d 1258 (Fed.
Cir. 2006), Veteran Deshotel filed a claim for compensation
for service connected residuals of a head injury, which the
RO granted in a decision in which it found that his physical
examination showed no evidence of a psychiatric condition.
Id. at 1259–60. We affirmed the Board’s implicit denial
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STEELE v. COLLINS 11
determination for service connected psychiatric condition,
id. at 1262, later noting that “[u]nder those circumstances,
a reasonable veteran would have known that his claim for
disability compensation for a psychiatric condition was de-
nied.” Adams, 568 F.3d at 63 (discussing Deshotel). This
makes sense. Having no psychiatric condition at the time
of the original decision was inconsistent with an award for
benefits of a psychiatric condition.
The Adams court drew a strong contrast between these
two cases and the situation addressed by the Veterans
Court in Ingram v. Nicholson, 21 Vet. App. 232 (2007). In
Ingram, Veteran Ingram filed a claim for non-service con-
nected pension benefits after his lung was removed at a VA
hospital, a claim that was compensable only by showing
permanent unemployability. The VA denied this claim be-
cause he failed to show that his unemployability was per-
manent. Id. at 235. Ingram later filed a claim for benefits
under 38 U.S.C. § 1151, seeking benefits for an esophageal
leak caused by the VA’s medical care in performing the
lung removal. Id. The Board awarded him compensation
under § 1151, which did not require permanent unemploy-
ability. In reviewing the effective date, the Veterans Court
explained that the VA’s earlier decision denying compensa-
tion for permanent unemployability did not implicitly deny
Ingram’s claim under § 1151 because “each claim stands
alone and is not contingent on any action (favorable or un-
favorable) by the RO on the other claim.” Id. at 247. The
Veterans Court noted that the elements of the two claims
were “entirely different,” and commented that “when Mr.
Ingram was informed that his claim for pension benefits
was denied because his condition was ‘not established as
permanent,’ he had no reason to know” how (or whether)
his § 1151 claim was decided. Id. As we summarized in
Adams, “the regional office’s explanation of its rejection of
Mr. Ingram’s non-service connection claim for pension ben-
efits did not give Mr. Ingram reasonable notice that it was
also rejecting his claim for disability compensation under
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STEELE v. COLLINS 12
section 1151.” Adams, 568 F.3d at 962. This was because
the original denial was based on a finding of no permanent
unemployability—a finding that had no bearing on In-
gram’s eligibility for compensation under § 1151.
Although the reasons given for the explicit VA action
must be stated and reasonably support the implicit denial,
as described above, the VA need not expressly connect the
dots between the stated explanation and the implicitly de-
nied claim. Such a requirement would leave no room for
the implicit denial doctrine. Adams, 568 F.3d at 961 (“The
‘implicit denial’ rule provides that, in certain circum-
stances, a claim for benefits will be deemed to have been
denied, and thus finally adjudicated, even if the DVA did
not expressly address that claim in its decision.” (emphasis
added)). It makes little sense to require an express state-
ment of reasons separately addressing a claim that is not
itself explicitly discussed. Rather, the veteran receives suf-
ficient notice of both the fact of the implicit denial and the
reasons therefore when the stated reasons for the explicitly
decided claim would reasonably be understood to also ex-
tend to the implicitly denied claim.
To that extent, “the application of the implicit denial
rule does not violate [a claimant’s] right to receive notice
pursuant to the VA’s due process regulation,” Cogburn, 809
F.3d at 1236 (discussing an earlier but identical version of
the notice provision at § 3.103 that also included the re-
quirement of providing the reasons for the decision).
B
Here, the September 2021 Board decision correctly an-
alyzed notice to Steele of the implicit rejection of his head-
ache claim by asking whether the explicit denial of his
claim for head injury in the 1991 RO Decision and the 1991
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STEELE v. COLLINS 13
Notice Letter5 provided Steele with “reasonable notice that
his claim for benefits [for service connected headaches] was
denied.” J. App’x at 195. To answer this question, the
Board considered the reasons stated for the explicit denial
of Steele’s head injury claim and how they applied to the
implicitly denied claim in analyzing the four non-exclusive
“Cogburn factors.” Id. (applying Cogburn v. Shinseki, 24
Vet. App. 205 (2010)).
Considering these factors, the Board held that “the
[1991] adjudication alluded to the headaches ‘claim’ in such
a way that it could be reasonably inferred that the claim
was denied,” because Steele had sufficient notice, noting
that: the explicitly denied claim for brain injury and head-
aches were “closely related”; that the 1991 Examination
“noted the headaches as a residual of the brain injury, but
considered them not disabling”; and that the 1991 RO De-
cision found that scars were the “only residual of the head
injury in service.” J. App’x at 196–97 (emphasis in origi-
nal). The Veterans Court affirmed. We see no legal error
in this analysis or the Board’s findings or the Veterans
Court’s affirmance.
While one might question whether the terse statement
of the reason for the explicit denial here was sufficient to
satisfy the implicit denial standard set forth above, that is
a question of fact beyond our jurisdiction to address. What
we can say is that the stated reason was not so devoid of
meaning as to be insufficient to support the implicit denial
5 At oral argument, Steele argued that our analysis
should be restricted to the 1991 Notice Letter and exclude
the 1991 RO Decision. See Oral Argument at 15:02–15:23.
Steele cites no support for the proposition that the expla-
nation in an RO decision itself cannot provide the reasons
for an implicit denial. We see no reason for the exclusion,
and Steele has forfeited this argument by not making it in
his opening brief.
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STEELE v. COLLINS 14
as a matter of law, and the Board did not fail to consider
the correct standard for implicit denial.
To the extent Steele argues that the denial of his head-
ache claim here was explicit, see Oral Argument at 14:33–
15:01, that argument is contrary to: (1) Steele’s own argu-
ment that his claim for service connection for headaches
was not adjudicated in 1991, J. App’x at 193 (Board’s Sep-
tember 2021 Decision summarizing Steele’s arguments);
and (2) the Board’s finding of fact that the 1991 decision
“implicitly denied service connection for headaches,” J.
App’x at 191. Further, Steele forfeited this argument by
failing to present it anywhere in his opening brief to this
court.
C ONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED
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