United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PHILIP D. MUNRO, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2009-7110 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in 07-0083, Judge Robert N. Davis. 

___________________________ 

Decided: August 6, 2010 

___________________________ 

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas argued for claimant-appellant. 

MARTIN F. HOCKEY, JR., Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were TONY WEST, Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, KIRK T.

MANHARDT, Assistant Director, and MEREDYTH COHEN 

HAVASY, Attorney. Of counsel on the brief were MICHAEL 

J. TIMINSKI, Deputy Assistant General Counsel, and 
MUNRO v. DVA 2

MARTIN J. SENDEK, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of 

Washington, DC. 

__________________________ 

Before RADER, Chief Judge, BRYSON, and DYK, Circuit 

Judges. 

DYK, Circuit Judge. 

Philip D. Munro (“Munro”) appeals from a final judgment of the United States Court of Appeals for Veterans 

Claims (“Veterans Court”). The Veterans Court affirmed 

a decision of the Board of Veterans’ Appeals (“Board”) 

denying Munro an earlier effective date for an increased 

rating for his service-connected granuloma of the left lung 

and total disability based on individual unemployability 

(“TDIU”). See Munro v. Peake, No. 07-0083, 2008 WL 

5101148 (Vet. App. Oct. 15, 2008). We affirm. 

BACKGROUND

Munro claims that he is entitled to a 1995 or 1997 effective date for increased compensation for his serviceconnected disability because of informal claims for that 

disability that were made in those years. Under the 

pertinent statute and regulations, the effective date for 

increased benefits based on a claim can generally be no 

earlier than the filing date of the claim. 38 U.S.C. 

§ 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date will 

generally date back to the date of an earlier claim if that 

claim was still pending on the date of the award. See

Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). 

The question here is whether 1995 and 1997 informal 

claims were still pending or were deemed denied when the 

Department of Veterans Affairs (“VA”) in November 1997 

denied a formal claim for increased benefits for the same 

disability. 
3 MUNRO v. DVA

Munro served on active duty in the United States 

Navy from June 1958 to May 1962. During his military 

service, Munro experienced respiratory difficulties, and a 

lesion was identified in his left lung. The lesion was 

surgically removed at a naval hospital in July 1961 and 

identified as a fibrocaseous granuloma. After his surgery 

Munro returned to duty and was discharged in 1962. 

In September 1992, Munro filed a VA claim for service 

connection and compensation for “[r]espiratory difficulties.” J.A. 24. In March 1993, the VA regional office 

(“RO”) granted service connection for the granuloma of 

the left lung identified while Munro was in the service, 

but found the condition asymptomatic with a zero percent 

disability rating, attributing Munro’s respiratory difficulties to non-service-connected chronic obstructive pulmonary disease (“COPD”) resulting from forty years of 

smoking. Munro did not appeal that decision. A year 

later, in March 1994, Munro filed a claim for an increased 

rating, which the RO denied the following month. Munro 

again did not appeal. 

In May 1995, Munro underwent pulmonary tests at a 

VA medical center, where a physician diagnosed Munro 

with “Severe Obstructive Airways Disease.” J.A. 41. In 

April 1997, the same VA physician noted that Munro had 

“[s]evere COPD” and was “totally 100% [p]ermanently 

disabled.” J.A. 42. 

In September 1997, Munro requested a reopening of 

his claim for an increased rating for his service-connected 

lung condition. He stated that he felt “the condition has 

progressed to a point where it is totally disabling.” J.A. 

108. Munro requested all of his VA medical records from 

1993 to 1997 to be secured as evidence to support his 

claim for an increased rating. The VA medical center only 

supplied the RO with records dating back to the start of 
MUNRO v. DVA 4

1996. In a November 1997 decision, the RO denied 

Munro’s claim for increase, noting that it considered 

“[o]utpatient treatment reports from the Fargo VA Medical Center dated 03-19-96 to 07-18-97.” J.A. 43. The RO 

found that the “VA medical reports show that the veteran 

has severe chronic obstructive pulmonary disease,” “which 

[is] non-service connected,” and that “the medical reports 

are unrelated to treatment for a left lung granuloma.” Id. 

Munro did not appeal that decision. 

On March 31, 2003, Munro filed another formal claim 

for an increased rating for his service-connected disability. In May 2003, the RO increased Munro’s disability 

rating for his left lung granuloma to 60 percent, effective 

April 1, 2003. In June 2003, Munro filed a formal claim 

for total disability based on individual unemployability, 

which the RO granted effective April 1, 2003, based upon 

Munro’s schedular disability rating and evidence of unemployability. In November 2003, the RO revised the 

effective date for both ratings to March 31, 2003, the date 

of Munro’s formal claim. 

Munro filed a notice of disagreement with the RO, arguing that he was entitled to an earlier effective date for 

the ratings increases based on a pending informal claim 

raised by the April 1997 VA medical record. The RO 

denied an earlier effective date because it found that the 

April 1997 report had been considered as part of the 

November 1997 RO decision, and, moreover, concluded 

that the report could not be an informal claim because it 

related to Munro’s non-service-connected COPD, not his 

service-connected left lung granuloma. Munro then 

appealed to the Board. The Board similarly rejected 

Munro’s argument that the April 1997 VA medical report 

was an informal claim, because “[t]he cited medical record 

described ‘COPD’ . . . which was not a disability for which 

service connection had been granted. No mention was 
5 MUNRO v. DVA

made of the granuloma.” J.A. 77. Munro appealed the 

Board’s decision to the Veterans Court. 

Before the Veterans Court, Munro again argued that 

the April 1997 VA medical report was an informal claim 

for increased benefits and TDIU based on his serviceconnected disability that had never been adjudicated by 

the VA, warranting an earlier effective date. Apparently 

for the first time Munro argued that the May 1995 VA 

medical report also constituted a pending informal claim 

for increased benefits, warranting an earlier effective 

date. The Veterans Court, quoting our decision in Williams, 521 F.3d at 1351, stated that “[a] subsequent final 

adjudication of a claim which is identical to a pending 

claim that had not been finally adjudicated terminates 

the pending status of the earlier claim. The later disposition, denying the claim on its merits, also decides that the 

earlier identical claim must fail.” See Munro, 2008 WL 

5101148, at *1 (quotation marks omitted). Under this 

implicit denial rule, the court held that even “if [the May 

1995 and April 1997] medical documents were informal 

claims as Mr. Munro contends, the November 1997 RO 

decision served to adjudicate them.” Id. at *2. The Veterans Court affirmed the denial of Munro’s claim for an 

earlier effective date. Id. Munro timely appealed. 

DISCUSSION

We have jurisdiction to review decisions of the Veterans Court “with respect to the validity of a decision of the 

Court on a rule of law or of any statute or regulation . . . 

or any interpretation thereof (other than a determination 

as to a factual matter) that was relied on by the Court in 

making the decision.” 38 U.S.C. § 7292(a); see Forshey v. 

Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc) 

(“We hold that we have jurisdiction over . . . issues of 

interpretation if the Court of Appeals for Veterans Claims 
MUNRO v. DVA 6

elaborated the meaning of a statute or regulation and the 

decision depended on that interpretation . . . .”). Under 

the statute as amended in 2002, see Veterans Benefits Act 

of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 

2832 (codified at 38 U.S.C. § 7292(a)), we have jurisdiction 

to review all legal questions decided by the Veterans 

Court. See Szemraj v. Principi, 357 F.3d 1370, 1374–75 

(Fed. Cir. 2004). We review a claim of legal error in a 

decision of the Veterans Court without deference. Id. at 

1372. 

A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. Adams v. 

Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. 

§ 3.160(c). A claim will also remain pending if the VA 

failed to notify a veteran of the denial of his claim. Cook 

v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). 

It is established, however, that in certain circumstances, 

under the implicit denial rule, “a claim for benefits will be 

deemed to have been denied, and thus finally adjudicated, 

even if the [VA] did not expressly address that claim in its 

decision.” Adams, 568 F.3d at 961. 

Munro argues that the Veterans Court erred in applying the implicit denial rule. First, he argues that the 

implicit denial rule does not apply to pending informal 

claims. Second, he argues that the rule does not apply 

where a veteran is not put on notice that the earlier 

pending claims are being rejected by an explicit discussion of those earlier claims in a later VA decision. We 

address each of these arguments in turn. In doing so, we 

must assume, as the Veterans Court did, that the May 

1995 and April 1997 VA medical reports were informal 

claims for increased disability ratings related to Munro’s 

service-connected granuloma of the left lung. While the 

government urges that these records related only to 

Munro’s non-service-connected COPD and could therefore 
7 MUNRO v. DVA

not be informal claims, this raises fact issues over which 

we lack jurisdiction. 

With regard to Munro’s contention that the implicit 

denial rule cannot apply to informal claims—only to 

formal claims—we see no proper basis to distinguish 

between formal and informal claims. Munro asserts that 

38 C.F.R. § 3.157(b) mandates the separate adjudication 

of informal claims. The regulation provides in relevant 

part: 

 (b) Claim. Once a formal claim for pension or 

compensation has been allowed or a formal claim 

for compensation disallowed for the reason that 

the service-connected disability is not compensable in degree, receipt of one of the following 

will be accepted as an informal claim for increased 

benefits or an informal claim to reopen. . . . 

 (1) Report of examination or hospitalization by 

Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed 

services hospital will be accepted as the date of 

receipt of a claim. 

However, 38 C.F.R. § 3.157(b) only establishes that evidence such as VA medical reports will be accepted as 

informal claims for increased compensation, not that 

informal claims require separate consideration from 

formal claims. Munro urges that informal claims are 

different because the veteran “may not have been aware . 

. . that the records existed.” Claimant-Appellant’s Br. 1. 

But the regulations provide an absolute right in a case 

such as this for veterans to secure their VA medical 

records. See 38 C.F.R. § 1.513(b)(1)(ix). Here, Munro 

notably does not claim that he was unaware of the medical records alleged to constitute the informal claims, and 
MUNRO v. DVA 8

indeed urged the VA to obtain and consider those records 

in connection with the September 1997 formal claim. 

In Williams, we applied the implicit denial rule in 

holding that “a subsequent final adjudication of a claim 

which is identical to a pending claim that had not been 

finally adjudicated terminates the pending status of the 

earlier claim,” 521 F.3d at 1351 (emphasis added), while 

recognizing that a “[p]ending claim” can originate as a 

“formal or informal” claim, see id. at 1350 (quoting 38 

C.F.R. § 3.160(c)). In Adams, we explicitly applied the 

rule to an informal claim. See 568 F.3d at 963 (affirming 

a Veterans Court holding that an RO “decision alluded to 

the underlying claims in a manner that put Mr. Adams on 

notice that his informal claim for bacterial endocarditis 

. . . was also denied” (emphasis added)). Therefore, we 

hold that the implicit denial rule may be applied to terminate the pending status of both formal and informal 

claims. 

This leaves us the question of whether the implicit 

denial rule is applicable here. In Deshotel v. Nicholson, 

457 F.3d 1258 (Fed. Cir. 2006), we held that where a 

veteran files two closely related claims but the VA decision rules explicitly on only one of those claims, the implicit denial rule requires that the other claims also be 

treated as denied. There, the veteran in July 1984 sought 

service connection for disabilities related to a head 

trauma. He sought compensation for psychiatric disabilities as well as physical disabilities. Id. at 1259. The RO’s 

decision granted service connection for physical disabilities resulting from the head trauma, but did not address 

any claim for psychiatric disability. Id. at 1259–60. 

Following a 2000 grant of service connection for the 

psychiatric condition, the veteran argued that his effective date for that disability should be July 1984. We 

rejected his contention that the July 1984 psychiatric 
9 MUNRO v. DVA

claim remained pending, holding that “[w]here the veteran files more than one claim with the RO at the same 

time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address 

the other claim, the second claim is deemed denied, and 

the appeal period begins to run.” Id. at 1261 (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)). 

Thereafter, in Williams, we held that “a subsequent 

final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates 

the pending status of the earlier claim.” 521 F.3d at 1351. 

In that case, the veteran filed a claim in March 1977 for 

service connection related to a nervous condition. Id. at 

1349. The RO disallowed the claim three months later 

because the veteran failed to provide information, but the 

veteran never received notice that the claim had been 

disallowed. Id. The veteran filed another claim for 

service connection for his nervous condition in October 

1978, which the RO denied on the merits. Id. In 1994, 

the VA granted the veteran service connection for schizophrenia, at which point he argued that he was entitled to 

an earlier effective date relating back to his March 1977 

claim, which he argued remained pending because he was 

not notified of its denial. Id. Rejecting the argument that 

the March 1977 claim remained pending, we explained: 

The later disposition, denying the claim on its 

merits, also decides that the earlier identical 

claim must fail. The notice given that the later 

claim has been disallowed informs the veteran 

that his claim for service connection has failed. 

This notice affords the veteran the opportunity for 

appeal to the BVA, and if necessary to the Veterans Court and this court, so that he might demonstrate that his claim for service connection should 

have been sustained. 
MUNRO v. DVA 10

Id. at 1351. Thus, under the implicit denial rule, the 

denial of a claim will terminate the pending status of any 

identical pending claims. See also Charles v. Shinseki, 

587 F.3d 1318, 1323 (Fed. Cir. 2009) (“[W]hen the substance of a later-filed claim is addressed in an RO decision, the claimant can infer that the earlier-filed claim 

based on the same disability has also been adjudicated.” 

(citing Williams, 521 F.3d at 1350)). 

Adams v. Shinseki, 568 F.3d 956, clarified the notice 

requirement for the implicit denial rule. In that case, the 

veteran filed a claim for service connection in April 1951 

for rheumatic heart disease, which the VA denied in June 

1951. Id. at 959. Not long thereafter, the veteran was 

hospitalized in a VA medical facility and diagnosed with 

rheumatic heart disease and endocarditis. The RO reviewed the VA medical reports, but found that they did 

not reveal any new and material evidence about whether 

the heart disease was connected to the veteran’s service. 

Id. In October 1951, the veteran submitted an affidavit to 

the RO referring the VA to the hospital report and both 

diagnoses, but again the RO sustained the denial of the 

veteran’s heart disease claim. Id. The veteran appealed 

to the Board, contending that he was entitled to service 

connection for a “heart condition.” The Board denied the 

appeal, noting that it had considered the entire record, 

including the VA medical reports and the veteran’s affidavit, and found no evidence of “active rheumatic fever or 

other active cardiac pathology during service.” Id. 

In 1997, the VA awarded service connection for endocarditis, and the veteran sought a 1951 effective date on 

the basis that his 1951 endocarditis claim remained 

pending. Id. Relying on Deshotel, we held that the RO’s 

decision in October 1951 was a denial of both the rheumatic heart disease claim and the endocarditis claim, 

even though the RO decision did not explicitly address 
11 MUNRO v. DVA

endocarditis. Id. at 961–64. In doing so, we noted that 

“the implicit denial rule is, at bottom, a notice provision.” 

Id. at 965. Thus, the proper notice standard is “whether 

[a VA decision] provided sufficient information for a 

reasonable claimant to know that he would not be 

awarded benefits for his asserted disability.” Id. at 963. 

This does not require a VA decision to expressly discuss a 

pending claim for it to be deemed denied. “The ‘implicit 

denial’ rule provides that . . . a claim for benefits will be 

deemed to have been denied . . . even if the [VA] did not 

expressly address that claim in its decision.” Id. at 961. 

We therefore concluded that the veteran had received 

sufficient notice that his claims had been denied, because 

of the close association of his claims and the fact that in 

1951 both the RO and the Board had considered his 

affidavit and hospital records. Id. at 963–65.

Here, as in Williams, the informal claims raised by 

the May 1995 and April 1997 medical reports and the 

formal claim filed in September 1997 were identical. 

Action by the VA denying a claim identical to an earlier 

claim as a matter of law provides notice that the earlier 

claim has been denied. As noted above, we must assume 

that all of Munro’s claims were for an increased rating 

related to his service-connected granuloma of the left 

lung, rather than for COPD. Munro contends, however, 

that his claims were not the same, because the April 1997 

informal claim raised an extraschedular claim for TDIU 

that was not addressed by the November 1997 RO decision. But this is not the case, as the RO decision explicitly denied extraschedular compensation for TDIU. The 

RO decision stated that “[t]he regular schedular standard 

is shown to be adequate to compensate the veteran’s 

disability. An exceptional or unusual disability picture 

with such related factors as marked interference with 

employment or frequent periods of hospitalization has not 
MUNRO v. DVA 12

been presented.” J.A. 43. Therefore, because Munro’s 

earlier informal claims were identical to his later claim, 

the VA’s denial of his later claim was sufficient to notify 

him that his earlier informal claims were also denied. 

While the implicit denial rule is applicable because 

Munro’s May 1995 and April 1997 informal claims were 

identical to his September 1997 formal claim, Munro also 

had other reasons to understand that his informal claims 

were being denied in the November 1997 RO decision. 

That decision cited “[o]utpatient treatment reports from 

the Fargo VA Medical Center dated 03-19-96 to 07-18-97” 

as evidence the VA had considered. J.A. 43. This would 

have included the medical report upon which Munro’s 

April 1997 informal claim was founded. The fact that the 

VA denied Munro’s September 1997 formal claim while 

considering this report was a clear indication that any 

informal claim raised by the April 1997 report was also 

denied. In addition, when Munro filed his September 

1997 claim, he based that claim in part on his May 1995 

report by requesting the VA to obtain and consider his 

“outpatient records from VAMC Ft. Meade for the period 

1993 to 1997” as evidence. J.A. 108. Although it may 

have been error for the VA to fail to secure and consider 

all of the records, that is an issue that Munro should have 

raised on appeal. A reasonable claimant would read the 

November 1997 RO decision as denying the entire claim 

for increased benefits based on the records that the veteran alleged were pertinent. Munro therefore had multiple reasons to know that any pending informal claims he 

may have had were denied by the November 1997 RO 

decision. 

Veterans with service-connected disabilities may visit 

VA hospitals regularly for examination or treatment. 

This will result in the creation of multiple treatment 

records. This may lead to multiple informal claims under 
13 MUNRO v. DVA

38 C.F.R. § 3.157, as here in this case. It is not necessary 

for the VA to address every one of these informal claims 

separately, nor is it reasonable to expect them to do so, 

particularly where the claims relate to the same serviceconnected disability. The failure to mention every pending informal claim in a VA decision does not preserve 

those claims. Here, even though the May 1995 and April 

1997 informal claims were not expressly discussed, upon 

reading the RO’s November 1997 decision, a reasonable 

claimant would know that he would not be awarded 

increased benefits for his asserted disability based on 

those VA medical records. Therefore, those informal 

claims were deemed denied by that decision. The Veterans Court’s judgment is affirmed. 

AFFIRMED 

COSTS

No costs.