       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                PHYLLIS S. BATSON,
                 Claimant-Appellant

                           v.

 DAVID J. SHULKIN, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                      2016-1723
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1916, Judge Bruce E. Kasold.
                ______________________

                 Decided: May 3, 2017
                ______________________

   KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.

    WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by ROBERT E. KIRSCHMAN, JR., MARTIN F.
HOCKEY, JR., BENJAMIN C. MIZER; BRIAN D. GRIFFIN,
MARTIE ADELMAN, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2                                        BATSON   v. SHULKIN



                 ______________________

     Before MOORE, LINN, and STOLL, Circuit Judges.
MOORE, Circuit Judge.
     Phyllis S. Batson appeals from the decision of the
Court of Appeals for Veterans Claims (“Veterans Court”)
affirming the Board of Veterans’ Appeals’ (“Board”) find-
ing that Mr. Batson’s 1993 claim for special monthly
pension for aid and attendance was implicitly denied. We
agree with Mr. Batson that the Board erred as a matter of
law in finding that an implicit claim that was unrecog-
nized until 2011 was implicitly denied in 1993–94. We
vacate and remand to the Veterans Court which is or-
dered to remand to the Board for further proceedings
consistent with this opinion.
                       BACKGROUND
    Mr. Batson served in the Air Force from 1963 to 1968.
In August 1993, following surgery for retinal detachment
at a VA hospital that left him blind in one eye, he filed an
application for compensation or pension based on his
blindness (“the 1993 application”), in which he noted: “will
apply for SSI—A&A [aid and attendance]? → legally
blind.” J.A. 16–19. In September 1993, the regional office
(“RO”) awarded Mr. Batson pension effective Septem-
ber 1, 1993 (“the September 1993 decision”). After receiv-
ing an additional statement from Mr. Batson’s physician,
the RO issued another rating decision (“the November
1993 decision”) confirming Mr. Batson’s continued enti-
tlement to pension benefits. In a January 1994 letter
(“the 1994 letter”), the RO restated that it had reviewed
all submitted medical evidence and confirmed
Mr. Batson’s entitlement to pension benefits.
    In May 2005, Mr. Batson submitted a form expressly
requesting a special monthly pension (“SMP”) for aid and
attendance based in part on his blindness. SMP is an
BATSON   v. SHULKIN                                     3



increased rate of pension payable to a pension beneficiary
who is in need of regular aid and attendance or is house-
bound. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351. The RO
awarded Mr. Batson SMP for aid and attendance, effec-
tive May 13, 2005 (the date that Mr. Batson was exam-
ined for his 2005 application).
    Multiple Board decisions and joint motions for re-
mand (“JMRs”) followed. Mr. Batson appealed the RO’s
decision to the Board, claiming entitlement to SMP for aid
and attendance effective September 1, 1993 (the effective
date of his original pension). In 2007, the Board denied
Mr. Batson an earlier effective date for the SMP, finding
there was “no evidence of a claim for [SMP] prior to
May 13, 2005 or any indication that entitlement to this
benefit, based on medical evidence, arose prior to the
examination conducted on that date.”              J.A. 85.
Mr. Batson appealed to the Veterans Court, which grant-
ed the parties’ JMR because the Board did not discuss
whether Mr. Batson’s remarks in the 1993 application
constituted an implicit claim for SMP.
    On remand in 2009, the Board again denied
Mr. Batson’s claims for an earlier effective date based on
a finding that his 1993 application did not contain an
implicit claim for SMP for aid and attendance.
Mr. Batson again appealed to the Veterans Court, which
granted the parties’ JMR because the Board failed to read
the 1993 application in a light favorable to the veteran
and failed to address the medical evidence submitted with
the 1993 application.
    On remand in 2011, the Board found that
Mr. Batson’s 1993 application could be liberally read as
an application for SMP for aid and attendance. It found
that the 1993 SMP claim was implicitly denied in the
September 1993 decision “and subsequent rating actions”
and denied his claim for an earlier effective date.
Mr. Batson again appealed to the Veterans Court, which
4                                         BATSON   v. SHULKIN



granted the parties’ third JMR because the Board failed
to consider the factors required for implicit denial.
    On remand in 2014, the Board again found that
Mr. Batson’s 1993 application could be liberally read as
an application for SMP. It found that the 1993 claim for
SMP was implicitly denied in the September and Novem-
ber 1993 decisions and the 1994 letter. Finally, the Board
found that even if his 1993 SMP claim had been pending
until 2005, Mr. Batson had not demonstrated an impair-
ment sufficient to entitle him to aid and assistance pur-
suant to 38 C.F.R. §§ 3.351(c)(1) and 3.352(a) until 2005.
    Mr. Batson appealed, and the Veterans Court af-
firmed. It held that the Board properly evaluated wheth-
er the 1993 claim was implicitly denied and the date
Mr. Batson became eligible for SMP under 38 C.F.R.
§§ 3.551(c)(1) and 3.352(a). Mr. Batson timely petitioned
this court for review. We have jurisdiction pursuant to 38
U.S.C. § 7292(d)(1).
                        DISCUSSION
     The scope of our review of a Veterans Court decision
is limited by statute. 38 U.S.C. § 7292. We may review
“the validity of a decision of the [Veterans] Court on a rule
of law or of any statute or regulation . . . or any interpre-
tation thereof (other than a determination as to a factual
matter)” that the Veterans Court relied on in making the
decision. Id. § 7292(a). We review statutory and regula-
tory interpretations by the Veterans Court de novo.
Hudgens v. McDonald, 823 F.3d 630, 634 (Fed. Cir. 2016).
     Mr. Batson argues that the 1993 decisions and 1994
letter could not have implicitly denied his SMP claims
because up until 2011, the government repeatedly held
that no SMP claim existed. We agree and hold that the
Veterans Court erred as a matter of law in affirming the
Board’s finding that Mr. Batson’s claim was implicitly
denied.
BATSON   v. SHULKIN                                       5



    The judicially created implicit denial rule provides
that, in certain circumstances, a veteran’s claim for
benefits may be deemed denied, even if the VA did not
expressly address the claim in its decision. Adams v.
Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The doctrine
applies to cases in which the VA’s decision “is clear but
not expressed,” and it “reflects an appropriate balance
between the interest in finality and the need to provide
notice to veterans when their claims have been decided.”
Id. at 963. “[T]he key question in the implicit denial
inquiry is whether it would be clear to a reasonable
person that the [decision] that expressly refers to one
claim is intended to dispose of others as well.” Id. at 964.
     Implicit denial requires (1) knowledge of the claim,
(2) adjudication of the claim, and (3) notice to the veteran
of the adjudication of the claim. Id. at 963–64. It may be
invoked only when the VA’s discussion of the claim in its
decision is sufficient to put the veteran on notice that his
claim was considered and rejected. Id. (citing Deshotel v.
Nicholson, 457 F.3d 1258 (Fed. Cir. 2006)). It defies logic
to argue that there was no claim in need of adjudication,
and then hold if there was, it was implicitly denied.
Andrews v. McDonald, 646 F. App’x 1001, 1006 (Fed. Cir.
2016). Because “the implicit denial rule is, at bottom, a
notice provision,” Adams, 568 F.3d at 965, implicit denial
of a claim must notify the veteran that his claim was
considered and adjudicated. See Deshotel, 457 F.3d at
1260–61 (informal claim for psychiatric disability implicit-
ly denied along with a claim for physical disability result-
ing from head injury because the RO decision noted that
the “VA exam shows no psychiatric symptomatology noted
at present time”); Adams, 568 F.3d at 959–60, 963 (infor-
mal claim for service connection for endocarditis implicitly
denied along with formal claim for rheumatic heart
disease because the Board concluded that the veteran’s
medical records “do not disclose active rheumatic fever or
other active cardiac pathology”); Andrews, 646 F. App’x at
6                                        BATSON   v. SHULKIN



1003, 1007 (informal unemployability claim was not
implicitly denied where the rating decision did not men-
tion employability and no VA statement indicated em-
ployability had been considered).
    Deshotel does not, as the government argues, stand
for the proposition that a favorable decision awarding
benefits should be construed as an implicit denial of all
other benefits implicitly sought. Such a holding would be
clearly inconsistent with the statute, which requires that
the notice of denial of benefits include “(1) a statement of
the reasons for the decision, and (2) a summary of the
evidence considered by the Secretary.”            38 U.S.C.
§ 5104(b). The government does not even allege that the
1993 decisions or the 1994 letter met the statutory notice
requirement. As we explained in Adams and Andrews,
implicit denial occurs only when the regional office deci-
sion “discusses a claim in terms sufficient to put the
claimant on notice that it was being considered and
rejected.” Adams v. Shinseki, 568 F.3d at 963 (quoting
Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007)); An-
drews, 646 F. App’x at 1006 (same). In both Deshotel and
Adams, the VA decisions contained language reasonably
construed as recognizing the implicit claim. Deshotel, 457
F.3d at 1259–60; Adams, 568 F.3d at 963. No such lan-
guage was present in the VA decision in Andrews and no
such language is present in the 1993 decisions or the 1994
letter in this case. 646 F. App’x at 1007. Implicit denial
requires adjudication and notice of that adjudication.
Nothing less would satisfy the statute.
    Under the proper legal framework, Mr. Batson’s 1993
SMP claim could not be found to have been implicitly
denied by the September and November 1993 decisions
and the 1994 letter. These documents merely show that
the RO approved Mr. Batson’s claim for disability pension
effective September 1, 1993. They did not discuss or
mention aid and attendance or any other SMP-related
considerations. Notification that Mr. Batson had been
BATSON   v. SHULKIN                                       7



granted pension benefits is not, without more, notice that
his claim for SMP for aid and attendance had been de-
nied. “Implicit denial simply cannot be stretched to
include a circumstance when the adjudicator believed that
there was no claim in need of adjudication or no evidence
in the decision gave notice to the veteran that the adjudi-
cator was considering and adjudicating the claim.” An-
drews, 646 F. App’x at 1007.          Because it is now
undisputed that Mr. Batson’s 1993 claim included an
implicit claim for SMP for aid and attendance, and a
claim remains pending until it is adjudicated, Adams, 568
F.3d at 960, Mr. Batson’s implicitly raised SMP claim
remained pending from 1993 until SMP was granted in
2005.
    As we have previously stated, “if the government did
not recognize a claim, it cannot have implicitly denied the
claim.” Andrews, 646 F. App’x at 1007. Here, the gov-
ernment did not recognize Mr. Batson’s claim until after it
was supposedly implicitly denied in 2011, when the Board
(after two joint remands) found that the 1993 application
included an implicit claim for SMP. The VA cannot now,
seventeen years after Mr. Batson’s implicit claim, use the
implicit denial doctrine to shield its failure to adjudicate
the claim.
     Mr. Batson argued, in supplemental briefing to this
court, that if the government did not recognize his implic-
it claim in 1993, then it did not comply with its duty to
assist him develop this claim. For example, it gave Mr.
Batson no notice of the information necessary to substan-
tiate a claim for SMP for aid and attendance. We will not
consider in the first instance whether the VA satisfied its
duty to assist in this case or what that duty to assist
entailed. Suffice it to say that there is a clear and simple
logic to Mr. Batson’s current argument: how can the
government have met its duty to assist him in developing
a claim that it said had not been raised? This would be
for the Board to adjudicate in the first instance.
8                                         BATSON   v. SHULKIN



    We note that the Board also held:
    Even assuming, without conceding, that the claim
    remained pending and unadjudicated, the claim
    for an earlier effective date still fails as the evi-
    dence preponderates against finding that the cri-
    teria for special monthly pension based on the
    need for regular aid and attendance [under 38
    C.F.R. §§ 3.351(c)(1) and 3.352(a)] were met prior
    to May 13, 2005.
J.A. 204–05. We have no authority to review application
of law to fact. We are, however, uncertain as to whether
the numerous legal errors made in the course of these
proceedings regarding the law of implicit claiming and
implicit denial affected the Board’s effective date analysis.
We leave it to the Board on remand to consider these
issues and to determine in the first instance, if it is at
issue in this case, whether a failure to assist the Veteran
in developing his claim impacts its analysis of the effec-
tive date of his claim. We therefore vacate the decision of
the Veterans Court and remand to the Veterans Court
which is ordered to remand this case to the Board for
reconsideration.
                       CONCLUSION
    For the foregoing reasons, the decision of the Veterans
Court is vacated and remanded with instructions for
further proceedings consistent with this opinion.
         VACATED AND REMANDED WITH
               INSTRUCTIONS
                           COSTS
    Costs to Mr. Batson.
