When the VA fails to adjudicate a claim for benefits, may a reviewing Court find that the VA meant to implicitly deny the claim, without running afoul of the Chenery Doctrine and further engaging in impermissible first-hand fact finding?

QUESTIONS PRESENTED The questions presented are twofold: When the VA fails to adjudicate the disposition of a claim for benefits, may a reviewing Court find that the VA meant to implicitly deny the claim, without running afoul of the Chenery Doctrine and further engaging in impermissible first-hand fact finding? And does the Federal Circuit’s use of the implicit denial rule undermine and contradict the VA’s statutory duty to provide a written statement of the reasons or bases for its findings and conclusions, that are adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in a higher Court? In 38 U.S.C. § 7292(a) Congress authorized the United States Court of Appeals for the Federal Circuit (Federal Circuit) to review decisions from the United States Court of Appeals for Veterans Claims (Veterans 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. Congress specifically limited that review to exclude (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case in 38 U.S.C. § 7292(d)(1). This Court complemented the exclusions in 38 U.S.C. § 7292(d)(1) with the Chenery Doctrine, which is a fundamental rule of administrative law that a reviewing court, “in dealing with a determination or li QUESTIONS PRESENTED Continued judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.” SEC v. Chenery Corp., 332 USS. 194, 196 (1947). In other words, a reviewing Court may not engage in first-hand fact finding. However, the Federal Circuit established the implicit denial rule, which runs afoul of 38 U.S.C. § 7292 and the Chenery Doctrine. This rule was created to facilitate the determination of whether a claim remained pending and unadjudicated or had been, by operation of law, deemed denied. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Prior to Deshotel, there was no rule of law for determining whether a claim had been “deemed denied” by the Department of Veterans Affairs (VA). In the case at bar, the Federal Circuit used the rule to extrapolate that the VA implicitly denied the Veteran’s claim for total disability individual unemployability (TDIU), when the VA failed to address the claim in its decision. However, the Federal Circuit’s finding that the VA implicitly denied the TDIU claim, resulted in the Court breaching its jurisdictional confines, with a post hoc prediction of the VA’s intentions when it failed to adjudicate the claim. ili QUESTIONS PRESENTED Continued The VA’s determination, regarding entitlement to benefits is, in every sense, a finding of fact. See 38 U.S.C. § 7261(a)(4). Thus, the Federal Circuit’s finding that the VA implicitly denied the claim is a manufactured factual determination, regarding the disposition of the TDIU claim, where the Secretary made no factual finding in the first instance. This is a consequence strictly prohibited by 38 U.S.C. § 7292 and the Chenery Doctrine. The implicit denial rule further contradicts the VA’s Congressionally mandated statutory obligation to provide an adequate statement of reasons or bases for its findings and conclusions, on all material issues of fact and law. This requirement was imposed by Congress in the Veterans Judicial Review Act (VJRA), and codified at 38 U.S.C. § 7104(d)(1). As articulated in the legislative history, Congress’ dual purpose for the requirement was to enable a claimant’s