Amicus Curiae Brief — Kevin Steele, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

No. 25-1123

IN THE

Supreme Court of the United States

_________

KEVIN STEELE,

Petitioner,

v.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

_________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

_________

BRIEF OF AMICUS CURIAE THE NATIONAL

ORGANIZATION OF VETERANS’ ADVOCATES IN

SUPPORT OF PETITION FOR CERTIORARI

_________

J. DANIEL EVERSON

VENABLE LLP

600 Mass. Ave., NW

Washington, DC 20001

SARAH L. SCOTT

Counsel of Record

VENABLE LLP

750 E. Pratt St., Ste. 900

Baltimore MD 21202

(410) 528-4630

SLScott@Venable.com

Counsel for Amicus Curiae

April 27, 2026

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TABLE OF CONTENTS

Page(s)

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ......................................... 1

SUMMARY OF ARGUMENT ............................ 5

ARGUMENT ....................................................... 8

I. PRE-2006, SETTLED PRECEDENT

APPLIED THE PENDING CLAIMS

DOCTRINE, WHICH REQUIRED A

CLAIM TO REMAIN PENDING

UNTIL THE VA COMPLIED WITH

STATUTORY MANDATES LIKE

PROVIDING CLEAR NOTICE OF

DENIAL AND A STATEMENT OF

THE CASE ..................................................... 8

II. THE JUDICIARY CREATED THE

IMPLICIT DENIAL RULE AS A

NEW

MECHANISM

FOR

RETROACTIVELY

FINALIZING

PENDING

CLAIMS,

WHICH

APPLICATION

DISPROPORTIONATELY

AFFECTS UP TO 11 MILLION

OLDER VETERANS’ DISABILITY

BENEFITS ................................................... 11

III.THE

RULE’S

“REASONABLE

PERSON” STANDARD IS APPLIED

RETROACTIVELY

BY

LEGAL

EXPERTS TO CLAIMS AGING

VETERANS FILED YEARS PRIOR........... 12

ii

IV. THE IMPLICIT DENIAL RULE HAS

BEEN

DISPROPORTIONATELY

APPLIED TO CLAIMS FILED

BETWEEN THE VIETNAM WAR

ERA AND THE MID-2000S, WHEN

THE MAJORITY OF CLAIMS

WERE FILED PRO SE ............................... 16

V. VETERANS’

ACCESS

TO

COUNSEL HAS HISTORICALLY

BEEN CIRCUMSCRIBED .......................... 17

VI. LEGAL

EXPERTS

CANNOT

RETROACTIVELY

SUBSTITUTE

THEIR UNDERSTANDING OF A

NOTICE FOR THAT OF THE

VETERAN

CLAIMANT

WHEN

DETERMINING

WHAT

A

“REASONABLE

CLAIMANT”

MIGHT INFER ............................................ 18

CONCLUSION .................................................. 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Shinseki,

568 F.3d 956 (Fed. Cir. 2009) ............... 11, 12, 18

Andrews v. Nicholson,

421 F.3d 1278 (Fed. Cir. 2005) ........................... 5

Best v. Brown,

10 Vet. App. 322 (Vet. App. 1997) ...................... 9

Butler v. Principi,

244 F.3d 1337 (Fed. Cir. 2001) ........................... 4

Cogburn v. McDonald,

809 F.3d 1232 (Fed. Cir. 2016) ................... 14, 15

Deshotel v. Nicholson,

456 F.3d 1258 (Fed. Cir. 2006) ................... 11, 12

Hamill v. Collins,

166 F.4th 1030 (Fed. Cir. 2026).............. 4, 10, 15

Hamill v. McDonough,

37 Vet. App. 65 (Vet. App. 2023) ........................ 6

Ingram v. Nicholson,

20 Vet. App. 156 (Vet. App. 2006) ...................... 9

Ingram v. Nicholson,

21 Vet. App. 232 (Vet. App. 2007) ............ 3, 9, 11

iv

Myers v. Principi,

16 Vet. App. 228 (Vet. App. 2002) ...................... 9

Norris v. West,

12 Vet. App. 413 (Vet. App. 1999) .................. 3, 9

Steele v. Collins,

135 F.4th 1353 (Fed. Cir. 2025)........................ 15

Tablazon v. Brown,

8 Vet. App. 359 (Vet. App. 1995) ........................ 9

Statutes

An Act to Grant Pensions, 12 Stat. 566

(1862) ................................................................. 17

An Act Supplementary to An Act Entitled

An Act to Grant Pensions, 13 Stat. 387

(1864) ................................................................. 17

Veterans Appeals Improvement and

Modernization Act of 2017, Pub. L. No

115-55, 1631 Stat. 1105 (codified at 38

U.S.C. § 5904(c)(1))

....................................... 2, 4, 9, 10, 15, 16, 17, 18

Veterans Benefits, Health Care, and

Information Technology Act of 2006,

Pub. L. No. 109-461, 120 Stat. 3403

................................................................. 2, 16, 17

Veterans Judicial Review Act, Pub. L. No.

100-687, 102 Stat. 4105 (1988) ......................... 17

v

Other Authorities

115th Cong. 22 (2017) (statement of Ryan

M. Gallucci) ................................................ 13, 14

38 C.F.R. § 3.102 ...................................................... 5

38 C.F.R. § 3.103(a)–(b) ............................................ 5

38 C.F.R. § 3.103(f) ......................................... 5, 8, 15

Inst. of Med. of the Nat’l Academies, A 21st

Century System for Evaluating Veterans

for Disability Benefits (Michael McGeary

et al. eds., 2007) ................................................. 5

Linda L. Chao, et al, The prevalence of mild

cognitive impairment in Gulf War veterans: a follow-up study, 17 Frontiers in

Neuroscience (Jan. 22, 2024),

https://www.frontiersin.org/journals/neu

roscience/articles/10.3389/fnins.2023.130

1066/full ............................................................. 14

Nino C. Monea, Just How Paternalistic is

the VA? An Examination of the “NonAdversarial” Veterans’ Benefits System,

126 W. Va. L. Rev. 77 (2023) ............................ 13

S. Rep. 109-297 (2006)............................................ 17

VA Claims and Appeals Modernization, 84

Fed. Reg. Vol. 138, 167 (Jan. 18, 2019) ............ 15

vi

Wenjie Pan, et al., Different structural brain

patterns and their association with executive function and general cognitive ability in cognitively normal elderly adults,

18 Frontiers in Aging Neuroscience (Feb.

2, 2026),

https://www.frontiersin.org/journals/agin

gneuroscience/articles/10.3389/fnagi.2026.

1693197/ ful ....................................................... 14

Who are the nation’s veterans?, USA Facts

(Apr. 14, 2025),

https://usafacts.org/articles/who-are-thenations-veterans/ ................................................ 8

1

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

Amicus curiae National Organization of Veterans’

Advocates, Inc. (“NOVA”) is a not-for-profit organization of accredited attorneys, agents, and other qualified members who represent veterans, survivors, family members, and caregivers across the country in Department of Veterans Affairs (“VA”) disability claims

and appeals. In addition to connecting veterans to

counsel versed in veterans law, NOVA hosts regular

training seminars and webinars. NOVA routinely advocates for the interests of veterans and their representatives, including by filing amicus briefs where appropriate.

As attorneys and advocates for disabled veterans,

NOVA and its members have a keen interest in ensuring the nation’s veterans law remains clear and

aligned with the long-standing tradition of deference

to veterans in the benefits system established by Congress and judicial decisions. NOVA is concerned that

continued affirmation and application of the implicit

denial rule will erode that clarity and deference, especially given the larger historical context in which most

of claims affected by the rule were filed.

Mr. Steele is a veteran who filed disability claims

for service-connected headaches and a scar on his

1 No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae or their counsel made a monetary contribution to this brief’s preparation or submission. Counsel of record for all parties received timely notice of amicus’s intent to file this brief.

2

scalp pro se in 1990. At the time, federal statute required that the VA must provide an explicit decision

for each individual disability claim before those claims

could be considered closed and adjudicated. Fifteen

years after Mr. Steele first filed for disability, and almost twenty-five years after he was honorably discharged, the Federal Circuit created the implicit denial rule. This judicially-created rule has since been

faithfully and retroactively applied to any claim

brought by the more than 11 million veterans who

served before 2006—the year the rule was invented.

The Federal Circuit applied the rule to reject Mr.

Steele’s headaches disability claim and denied his petition for en banc review. As a result, Mr. Steele lost

more than 20 years of disability benefits for a servicerelated disability incurred before Ronald Reagan first

took office.

At its core, the Petition seeks to prevent further

retroactive application of a judicially-created rule that

is at odds with the regulations and precedent that existed when Mr. Steele—and many others—first filed

disability claims.

Indeed, the implicit denial rule disproportionally

affects claims of older veterans that were filed between the Vietnam War era and the implementation

of the Veteran’s Benefits, Health Care, and Information Technology Act in 2006. During that time, veterans appearing before the agency overwhelmingly

lacked attorney representation and the decision notices issued to these veterans did not provide the same

level of detail as those issued after the 2017 Veterans

Appeals Improvement and Modernization Act

(“AMA”). Any review should also consider the

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practical effects of the rule’s application, given when

the now-denied claims were filed, under what circumstances, and under which regulations. And where

those circumstances included limited access to counsel

for a now-aging veterans population whose opportunities to seek redress are limited, this Court should

carefully consider the effect of implicit denial on the

state of veterans benefits.

This disproportional effect on older veterans’

claims rises to the level of fundamental unfairness.

Under precedent at the time these veterans (including

Mr. Steele) filed their claims, claims remained pending until the VA complied with certain mandated procedural requirements—such as issuing an explicit decision denying a claim and providing the reasons for

its denial. See Norris v. West, 12 Vet. App. 413, 422

(Vet. App. 1999). The affected veterans, therefore, reasonably relied on the VA’s silence and believed claims

remained pending if they had not received an explicit

decision on them—even if that silence lasted many

years. See Ingram v. Nicholson, 21 Vet. App. 232, 241

(Vet. App. 2007) (under the “pending claim” doctrine,

a claim remains pending for as long as the Secretary

fails to act on it). To apply the implicit denial rule to

such claims is to apply a new rule, with new legal consequences, to claims filed by now-elderly veterans. It

converts claims from pending to final, where the retroactive determination is deemed “final” at a date far

past any ability to appeal. Applying the rule to a veteran’s claims, therefore, extinguishes 20 to 40 years of

benefits these veterans might have received because

the effective date of benefits is pegged to the filing

date of a still-pending claim.

4

The rule appeals to judicial efficiency, as its application can transform a claim from ‘pending’ to retroactively ‘denied,’ without the VA ever issuing a proper

denial notice for that claim. As a practical matter,

however, applying the implicit denial rule creates confusion among veterans, like Mr. Steele, who filed their

initial benefits claims pro se—years before the advent

of the implicit denial rule—and, generally, filed them

without legal representation and without familiarity

with the complexity of the regulations. Its application

also creates a more adversarial relationship between

veterans like Mr. Steele and the VA, against the VA

and Congress’s stated aims for VA benefits adjudication to be non-adversarial. See Butler v. Principi, 244

F.3d 1337, 1340 (Fed. Cir. 2001) (describing VA benefits adjudication as “nonadversarial and paternalistic”). To combat such confusion, to encourage transparency, and to support a less adversarial process for

veterans, Congress enacted the AMA—and it precludes use of the implicit denial rule on claims filed

after its adoption. See Hamill v. Collins, 166 F.4th

1030, 1036–37 (Fed. Cir. 2026).

NOVA here provides the relevant context and history necessary to understand why veterans overwhelmingly lacked representation for their benefits

claims until the mid-2000s, even though the veterans

could have greatly benefited from legal advice on how

to interpret the non-standardized decision notices

they received during that time period. This context

makes clear that the rule’s application causes a predictable and disproportionate impact on aging veterans who, when filing their claims, could not have foreseen the advent of the judicially crafted implicit denial

rule decades after. Because these veterans face denial

5

of decades worth of benefits in silence, not knowing

their claims were retroactively and implicitly denied,

and because they have little avenue for review absent

a change in the implicit denial rule by this Court, this

Petition provides a strong avenue to rectify the judicially created error of implicit denial. NOVA writes in

support of Mr. Steele’s Petition for certiorari and requests the Court to consider how implementing the

implicit denial rule disproportionately affects these

veterans, given the historical context NOVA provides

here.

SUMMARY OF ARGUMENT

The United States, through the VA, provides for

veterans as a way to “honor[] our debt of gratitude” to

those who have served their country. Inst. of Med. of

the Nat’l Academies, A 21st Century System for Evaluating Veterans for Disability Benefits 23 (Michael

McGeary et al. eds., 2007). As such, the policies and

regulations of the VA disabilities benefits program are

designed to be pro-veteran. For example, in examining

a veteran’s claim for disability benefits, the VA must

resolve any reasonable doubt about “service origin,

the degree of disability, or any other point” in the veteran’s favor and, where the veteran files pro se, the

VA is required to give a sympathetic reading to any

such filing. 38 C.F.R. § 3.102; Andrews v. Nicholson,

421 F.3d 1278, 1282–83 (Fed. Cir. 2005). Moreover,

veterans who file disability claims have long been entitled to decision notices containing clear explanations

of the decisions made. 38 C.F.R. § 3.103(a)–(b), (f)

(1990 amendment).

These policies and regulations support (1) transparency in the VA disability claims process and (2) a

6

non-adversarial, pro-veteran benefits adjudication

system. They are also in tension with the implicit denial rule, which is a product of more recent judicial

analysis. Specifically, the implicit denial rule creates

a safe harbor for VA adjudicators who issue non-compliant decision notices. It does so by allowing the

Board of Veterans’ Appeals or the Court of Appeals for

the Federal Circuit to retroactively determine that a

decision notice that fails to explicitly address each

pending claim—in violation of VA’s notice regulations—may yet provide sufficient information for a

“reasonable claimant” to infer that an unmentioned

pending claim was “implicitly” denied. See Hamill v.

McDonough, 37 Vet. App. 65, 73–74 (Vet. App. 2023).

Considering the historical context of the claims

most affected by the implicit denial rule, the consequences of this rule undermine clarity and reduce deference. Many of the claims affected by the implicit denial rule would have been brought pro se, and a pro se

veteran is not equipped to manage the ambiguities

that arise when, on the one hand, regulations require

the explicit denial of claims and, on the other, legal

professionals are encouraged to undertake a post-hoc

review through which they can decide that a claim had

been implicitly denied years prior. Such a veteran is

even less equipped to manage the heightened ambiguities that arise where the benefits notifications the

veteran might have received were issued at a time

when the regulations did not require the VA to provide

standardized information in support of that decision.

These consequences are serious enough to rise to the

level of fundamental unfairness: the rule disparately

impacts aging veterans who reasonably relied on pre2009 precedent for their belief that claims for which

7

they had not received an explicit denial remained

pending. That reasonable reliance caused their claims

to be extinguished without the possibility of appeal

when the courts created the new rule and retroactively applied it years after these veterans filed their

initial claims. With the period for appeal long passed,

the veterans may well end up losing decades of benefits because their effective dates must be re-set by

more recent, re-filed claims.

Amicus NOVA submits that the Court should

grant Mr. Steele’s Petition and consider the tenability

of the implicit denial rule given its practical consequences in the cases that it disproportionately affects

and the fundamental unfairness it causes to aging veterans as a result.

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ARGUMENT

I.

PRE-2006, SETTLED PRECEDENT APPLIED THE PENDING CLAIMS DOCTRINE, WHICH REQUIRED A CLAIM TO

REMAIN PENDING UNTIL THE VA COMPLIED WITH STATUTORY MANDATES

LIKE PROVIDING CLEAR NOTICE OF

DENIAL AND A STATEMENT OF THE

CASE

At the time Mr. Steele filed his initial benefits

claim, the relevant regulations required the VA to provide decision notices to a claimant for each benefits

decision made that affected benefits payments or

other grants of relief. 38 C.F.R. § 3.103(f) (1990

amendment). Those decision notices had to clearly

state each decision, as well as the reasons for that decision, though the VA was not yet required to provide

those reasons in a standardized format. Id.

And Mr. Steele is not alone: The Census Bureau

reported in 2023 that roughly 15.8 million Americans

are veterans. Who are the nation’s veterans?, USA

Facts (Apr. 14, 2025), https://usafacts.org/articles/who-are-the-nations-veterans/. Of those, some

72% served prior to the events of September 11, 2001,

meaning more than 11 million veterans served before

the 2006 invention of the implicit denial rule. Id. Their

dates of service matter: some 11 million veterans have

service experience capable of generating claims before

the implicit denial rule, and before they ever had reason to suspect a claim for disability could be silently

denied by the inaction, rather than the explicit notification, of the government they fought to serve.

9

Pre-2006 precedent also dictated that a claim remains pending until the VA procedurally complies

“with statutorily mandated requirements” that provide veterans with the information necessary to pursue an appeal—like explicit notice of denial or reasons

for that denial. See Myers v. Principi, 16 Vet. App. 228,

235 (Vet. App. 2002); Norris v. West, 12 Vet. App. 413,

422 (Vet. App. 1999); Tablazon v. Brown, 8 Vet. App.

359, 361 (Vet. App. 1995). Where, for example, the VA

provided explicit denials for some but not all of a veteran’s (related) claims, those for which the VA did not

provide explicit denial were not considered final. See

Best v. Brown, 10 Vet. App. 322, 325 (Vet. App. 1997)

(dismissed as to veteran’s generalized anxiety disorder claim for lack of jurisdiction because the VA did

not explicitly deny this claim when it denied the veteran’s personality disorder and adjustment reaction

claims). As late as July 2006, the Court of Appeals for

Veterans Claims held that a claim must be explicitly

denied to be considered adjudicated, based on the relevant notification regulations. Ingram v. Nicholson,

20 Vet. App. 156, 164 (Vet. App. 2006), withdrawn and

superseded on reconsideration by Ingram v. Nicholson,

21 Vet. App. 232 (Vet. App. 2007). In so holding, it emphasized that accepting a “doctrine of sub silentio denials has grave implications for due process and protecting the appellate rights of veterans” because “even

a savvy veteran” may not be aware of what is being

adjudicated when because multiple claims may be “developed and decided” separately. Id. at 170.

Congress echoed these worries in advocating for,

and then adopting, the AMA. Legislators and stakeholders emphasized the need for veterans to receive

clear and explicit notice of claims decisions, which

need, they believed, was unmet leading up to the

10

AMA’s enactment. Hamill, 166 F.4th at 1036–37. As

quoted in a recent Federal Circuit decision, Rep. Esty

emphasized that “you certainly shouldn’t have to hire

a lawyer when you are a veteran to demystify . . . very

vague notice.” Id. (cleaned up). The Director of the

Veterans of Foreign Wars said, “I can’t stress the importance of improved notification notices enough. It is

transparency, and it arms veterans to navigate their

own benefits.” Id. at 1037. The Senate report explained that the AMA would “modify the VA’s claims

decision notices to ensure that they are clearer and

more detailed.” Id. at 1036 (cleaned up) (emphasis

added in original). Upon review of Congress’s stated

intent for adopting the AMA, the Federal Circuit

found that the AMA prohibits the implicit denial

rule’s application to claims filed post-AMA adoption.

While veterans filing more recent claims certainly

“shouldn’t have to hire a lawyer” to “demystify . . . very

vague notice,” (emphasis added) older veterans who

filed claims between the Vietnam era and 2006 disproportionately couldn’t hire a lawyer to demystify the

notices provided to them. And with the Federal Circuit passing on en banc review in this matter and continuing to apply the implicit denial rule to the detriment of the aging veteran’s population, this Petition

may well be the last chance some veterans have to

challenge wrongful denials of benefits via the implicit

denial rule.

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II.

THE JUDICIARY CREATED THE IMPLICIT DENIAL RULE AS A NEW MECHANISM FOR RETROACTIVELY FINALIZING PENDING CLAIMS, WHICH APPLICATION DISPROPORTIONATELY AFFECTS UP TO 11 MILLION OLDER VETERANS’ DISABILITY BENEFITS

Just after the initial decision in Ingram, the Federal Circuit began to change the law. It found shortly

thereafter that a decision notification that explicitly

addresses just one claim out of several filed simultaneously can be seen as implicitly denying the other,

unmentioned, claims. Deshotel v. Nicholson, 456 F.3d

1258, 1261 (Fed. Cir. 2006).

Though Deshotel began the in utero development

of the “implicit denial rule,” it was not judicially born

until 2009, when the Federal Circuit invoked it as a

“notice provision.” Adams v. Shinseki, 568 F.3d 956,

961 & 965 (Fed. Cir. 2009). 2 That court reasoned that

the regulations required the VA to issue explicit decisions for each pending claim so that claimants would

receive adequate notice if a claim was denied. Since

the purpose of the regulations is to ensure adequate

notice of a benefits decision, the court concluded, benefits could be deemed denied where the VA issued an

explicit decision on one of the pending claims and that

decision provides sufficient information to put a “reasonable claimant” on notice that their other related,

pending claims were denied—even though the VA

failed to provide the explicit denials for each claim as

2 A Westlaw search confirmed that Adams was the first time

this term was used in a decision related to veterans benefits

claims.

12

the regulations required. Id. at 962–64. With Deshotel, the Federal Circuit introduced a new mechanism for closing out a pending claim and, with Adams,

it refined this mechanism and outlined the criteria for

its application. Thus the implicit denial rule emerged,

fully formed and armored, from the heads of the judiciary.

III.

THE RULE’S “REASONABLE PERSON”

STANDARD IS APPLIED RETROACTIVELY BY LEGAL EXPERTS TO CLAIMS

AGING VETERANS FILED YEARS PRIOR

Until the Federal Circuit’s decision in Adams,

there was no clearly articulated, structured doctrine

that correlated the VA’s silence on the outcome of a

claim with denial of that claim under a “reasonable

person” standard. In coining and articulating the “implied denial rule,” the judiciary also created and articulated what constitutes a “reasonable person.” 3

From Adams, implicit denial is presumed if the

“reasonable claimant” has been provided sufficient notice to know their pending claim must also fail. 568

F.3d at 963. To determine whether the “reasonable

claimant,” then, had been provided such notice requires the judiciary to set aside their extensive,

3 In Adams, as well as in other cases cited herein, a “reason-

able person” is a “reasonable veteran,” who is also a “reasonable

claimant.” See, e.g., 568 F.3d at 963–64. As the phrase “reasonable claimant” more completely captures the context in which the

implicit denial rule is applied—i.e., the court determining what

a reasonable veteran who filed a benefits claim with the VA

would have understood—NOVA uses the phrase “reasonable

claimant.”

13

specialized, knowledge of veterans benefits law and,

instead, read the explicit denial in the place of an average veteran—one who likely had no access to counsel when they received the denial. That “reasonable

claimant” is almost certain to know nothing of the implicit denial rule or to be savvy enough to read every

VA communication with an eye to the possibility that

adverse decisions on all sorts of benefits claims may

hide behind its explicit text. 4 This understanding,

however, has not been uniformly applied. This failure

is, perhaps, not surprising given that the judiciary, a

body well-versed in legal nuances, gained the retroactive power to decide who a “reasonable claimant” is

and what they might glean from a non-compliant decision notice when it created the implicit denial rule.

Substituting the “reasonable claimant” who is

well-versed in the law in place of the true “reasonable

claimant” is part of why the VA benefits process has

“morphed into a bureaucratic leviathan that the average veteran cannot possibly understand.” 115th Cong.

22 (2017) (statement of Ryan M. Gallucci). “Inadequate notification letters have been cited as a

4 A recent article by Nino Monea, an Assistant Professor of

Law at the Military Academy, West Point, emphasized how hard

it may be to determine for a veteran whether one of their claims

may have been implicitly denied. He noted that the VA can “silently reject entire claims” under this rule. Moreover, a passing

note regarding the evidence, or lack thereof, of, e.g., a psychiatric

condition can be enough to invoke the rule and deny a claim, even

if there is no mention of whether the RO is deciding a claim for a

psychiatric condition. As Professor Monea says, “Veterans must

parse VA decisions with a lawyer’s eye” if they want to “know the

fate of their claims.” Nino C. Monea, Just How Paternalistic is

the VA? An Examination of the “Non-Adversarial” Veterans’ Benefits System, 126 W. Va. L. Rev. 77, 124–25 (2023).

14

“fundamental failure” that greatly contributes to this

leviathan because veterans have “no reasonable way

to understand how VA arrived” at a benefits decision.

Id.

Veterans who are being disproportionately impacted by the application of the implicit denial rule

may fare particularly poorly against the legally versed

“reasonable claimant.” These include veterans of the

Gulf War, for example, who may have mild cognitive

impairment at double the rate of the general population in the same age cohort. 5 The affected veterans’

service dates were from 60–20 years ago and the veterans, therefore, are an aging population, where some

cognitive decline—especially in executive function—is

likely to occur. 6

Allowing the legally experienced judiciary to retroactively decide who a “reasonable claimant” is and

thereby decide whether a claim was implicitly extinguished creates further injustice for veterans such as

these because it re-sets the effective date for such

claims. Suppose, as in Cogburn v. McDonald, that a

Vietnam veteran initially filed a disability claim in

1974 only to be told, almost 30 years later, that his

5 Linda L. Chao, et al, The prevalence of mild cognitive im-

pairment in Gulf War veterans: a follow-up study, 17 Frontiers in

Neuroscience (Jan. 22, 2024), https://www.frontiersin.org/journals/neuroscience/articles/10.3389/fnins.2023.1301066/full.

6 Wenjie Pan, et al., Different structural brain patterns and

their association with executive function and general cognitive

ability in cognitively normal elderly adults, 18 Frontiers in Aging

Neuroscience (Feb. 2, 2026), https://www.frontiersin.org/journals/aging-neuroscience/articles/10.3389/fnagi.2026.1693197/

full.

15

claim had been implicitly denied by a different board

decision in 1985. 809 F.3d 1232, 1234–35 (Fed. Cir.

2016). The veteran then re-files the disability claim,

which is granted. That veteran has lost approximately

30 years of disability benefits because of the mandated

effective date re-set. Or imagine, as here, that the VA

pointed to a “terse statement” denying Mr. Steele’s

head injury claim, fifteen years later, and determined

that it was sufficient notice to Mr. Steele that his service-connected headaches claim had been implicitly

denied. Steele v. Collins, 135 F.4th 1353, 1361–62

(Fed. Cir. 2025) (questioning “whether the terse statement of the reason for the explicit denial . . . was sufficient to satisfy the implicit denial standard” but determining this to be a “question of fact” beyond the

court’s jurisdiction to address). Both of these scenarios

highlight the impact this rule has had, and continues

to have, on older veterans’ disability claims.

The VA, itself, has recognized how the implicit denial rule unfairly impacts these veterans and has

changed the regulations accordingly. By 2019, the VA

incorporated the AMA into their regulations, thus explicitly requiring a decision notice to include seven

discrete elements for each claim adjudicated. 38

C.F.R. § 3.103(f); VA Claims and Appeals Modernization, 84 Fed. Reg. Vol. 138, 167 (Jan. 18, 2019). It also

requires that each notice explicitly identify each of the

issues adjudicated. Hamill, 166 F.4th at 1036. There

is, again, no longer a place for the implicit denial rule.

16

IV.

THE IMPLICIT DENIAL RULE HAS BEEN

DISPROPORTIONATELY APPLIED TO

CLAIMS FILED BETWEEN THE VIETNAM WAR ERA AND THE MID-2000S,

WHEN THE MAJORITY OF CLAIMS

WERE FILED PRO SE

History reveals that the implicit denial rule disproportionately affects veterans who would have filed

claims pro se, which creates further tension with the

policies and regulations discussed above that support

transparency in the VA disability claims process and

a non-adversarial, pro-veteran benefits adjudication

system. All 12 Federal Circuit decisions applying the

implicit denial rule involve benefits claims initially

filed prior to the Veteran’s Benefits, Health Care, and

Information Technology Act of 2006’s enactment.

To counsel’s best research, of the 79 Court of Appeals for Veterans’ Claims decisions invoking the implicit denial rule, approximately 75% involve claims

initially filed prior to 2006 and none involve claims initially filed under the AMA. These dates are key because, as discussed below, it was not until 2006 that a

veteran could obtain (and pay reasonable rates for) legal counsel to appeal their claims prior to a final decision being issued. Veterans Benefits, Health Care,

and Information Technology Act of 2006, Pub. L. No.

109-461, 120 Stat. 3403. Further, prior to the AMA,

the VA was not required to provide the same level of

detail in its decision notices. See supra pp. 8–10.

17

V.

VETERANS’ ACCESS TO COUNSEL HAS

HISTORICALLY

BEEN

CIRCUMSCRIBED

Throughout the existence of the veterans benefits

system, Congress and the courts have imposed strict

limits on the ability of veterans to access counsel. Initially, Congress imposed a cap on the fees that lawyers

could charge veterans for benefits claims. An Act to

Grant Pensions, 12 Stat. 566, 568 (1862) (capping fee

lawyers can charge veterans for benefits claims at $5);

13 Stat. 387, 389 (1864) (amending cap to $10); see

also S. Rep. 109-297, at 6 (2006). That $10 cap remained for the next 124 years until the Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105,

4108 (1988). Then, Congress removed the $10 cap on

attorney fees for representing veterans in benefits disputes but permitted veterans to hire paid counsel only

after “the date on which the Board of Veterans’ Appeals first makes a final decision in the case.” Id.

Thus, veterans could not access hired counsel until after the entire administrative process at the VA sets

the factual record and issues the decisions that are reviewed by the appellate court in applying the implicit

denial rule.

When Congress passed the Veterans Benefits,

Health Care, and Information Technology Act, however, it permitted veterans to retain and pay counsel

as soon as a Notice of Disagreement was filed. Pub. L.

No. 109-461, 120 Stat. 3403, 3407 (2006). And with the

AMA, Congress again altered this timeline to allow

counsel to be retained when the claimant “is provided

notice of the agency of original jurisdiction’s initial decision.” Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No 115-55, 1631 Stat. 1105,

18

1110 (codified at 38 U.S.C. § 5904(c)(1)). While these

changes have permitted increased access to counsel

throughout the veterans benefits claim process, the

lasting impact of more than a century of strictly limited representation lingers on through the implicit denial rule’s application to veterans who appeared pro

se at a time when access to counsel was more limited.

VI.

LEGAL EXPERTS CANNOT RETROACTIVELY SUBSTITUTE THEIR UNDERSTANDING OF A NOTICE FOR THAT OF

THE VETERAN CLAIMANT WHEN DETERMINING WHAT A “REASONABLE

CLAIMANT” MIGHT INFER

When this Court, the Federal Circuit, the Court of

Appeals for Veterans’ Claims, or the Board of Veterans’ Appeals considers whether a prior claim has been

implicitly denied, each considers, under Adams,

whether a “reasonable claimant” has sufficient information from the explicit denial on another claim “to

know that he would not be awarded benefits” for the

pending claim. 568 F.3d at 963. If the language of the

explicit denial provides that “reasonable claimant”

with sufficient notice to know their pending claim

must also fail, those claims are presumed to be implicitly denied. Id. When that language fails to provide

such notice, however, the implicit denial rule does not

apply. Id.

Nevertheless, any judicial review of the reasonableness of such notice necessarily requires the reviewing body to set aside their extensive, specialized,

knowledge of veterans benefits law and instead to

read the explicit denial notice from the position of an

average veteran—historically speaking, one without

19

access to counsel when the explicit denial was received. That “reasonable claimant” is almost certain

to know nothing of the implicit denial rule—especially

those claimants who filed claims years before the

rule’s creation—and will not know to interpret every

VA benefits communication as if it might have application to there-unmentioned claims. When considering whether the implicit denial rule should survive,

this Court should consider the broader history of attorney representation in veterans appeals and the impact that access to counsel has on understanding and

appreciating the legal ramifications of an initial denial notice.

20

CONCLUSION

Amicus curiae urge this Court to grant the Petition

for a Writ of Certiorari and consider the persistent underrepresentation of veterans, and the disproportional impact the rule has on these veterans, when

evaluating the future of the implicit denial rule.

Respectfully submitted,

SARAH L. SCOTT

Counsel of Record

VENABLE LLP

750 E. Pratt St., Ste. 900

Baltimore MD 21202

(410) 528-4630

SLScott@Venable.com

J. DANIEL EVERSON

VENABLE LLP

600 Mass. Ave., NW

Washington, DC 20001

APRIL 27, 2026