How Do You Find an Unadjudicated (Pending) Claim in a VA Claims File?

To find an unadjudicated claim in a VA claims file, line up every claim, intent to file, and C&P exam or DBQ against what each rating decision actually decided. A claim that VA received and never finally adjudicated is still pending under 38 C.F.R. § 3.160(c). Unless a later decision implicitly denied it, it can carry the original claim date, which a new claim or a clear and unmistakable error (CUE) motion cannot reach.

The work is a cross-reference, not a reading exercise. Most pending claims sit in plain sight: a condition the veteran wrote on a form, or a diagnosis an examiner recorded, that no decision ever mentions.

This guide is general information for representatives, not legal advice about any particular case.

Pending, implicitly denied, or final: the three possibilities

Before you argue anything, decide which of three things happened to the issue you found.

Under § 3.160(d), a claim in the modernized review system becomes finally adjudicated when the period to file an available review option under § 3.2500 expires, or when judicial review concludes and no review option remains. For legacy claims, it is when the period to file a Notice of Disagreement expires or appellate review is completed.

Why the distinction matters for CUE and effective dates

CUE is a remedy against a final decision. Section 3.105(a)(1) allows review for clear and unmistakable error "at any time after a decision is final." If the issue was never decided, there is no final decision to attack, and a CUE motion aimed at it is the wrong vehicle.

A pending claim is often the stronger position. Under § 3.400, the effective date of an award on an initial claim is the date VA received the claim or the date entitlement arose, whichever is later. If the earlier claim never left pending status, the award on it is measured from that earlier receipt date, not from the date of a later filing.

The implicit denial rule

A claim the decision never names is not automatically pending. The Federal Circuit's implicit denial rule provides that, in some circumstances, a claim is deemed denied, and finally adjudicated, even though VA did not expressly address it. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question is whether it would be clear to a reasonable person that the decision expressly addressing one claim was intended to dispose of the other as well (id. at 964). The court described the rule as "at bottom, a notice provision" (id. at 965).

The Court of Appeals for Veterans Claims applies four factors in deciding that question. Cogburn v. Shinseki, 24 Vet. App. 205 (2010).

1. 1Relatedness of the claims. The closer the pending claim is to the one VA discussed, the more likely the decision gave notice that both were denied.
2. 2Whether the decision alluded to the pending claim in a way that lets a reader infer it was denied.
3. 3Timing. Claims filed together are more readily treated as decided together.
4. 4Representation. Whether the claimant had a representative when the decision issued.

On appeal from the later Board decision, the Federal Circuit held that the rule can reach a separately filed claim based on a distinct diagnosis when the decision makes the denial clear to a reasonable person, and that it applies to formal and informal claims alike. Cogburn v. McDonald, 809 F.3d 1232 (Fed. Cir. 2016).

Under current regulations, VA's decision on an issue "implies that VA has determined that evidence of record does not support entitlement for any other issues that are reasonably within the scope of the issues addressed in that decision" (§ 3.155(d)(2)). The practical result is the same: the further an issue is from anything the decision discussed, the stronger the argument that it is still pending.

How broad was the claim?

What VA had to decide depends on what the claim reasonably included. The CAVC held that the Board must consider any disability that may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). A veteran who claimed "PTSD" and was diagnosed with depression has a claim that can encompass the depression.

Section 3.155(d)(2) adds that once VA receives a complete claim, it adjudicates as part of that claim any ancillary benefits that arise from the decision. Read the claim form, the veteran's statements, and the exam requests together before you decide the scope.

The cross-check, step by step

1. 1List every claim document with its receipt date: claim forms, intents to file, statements in support of the claim, and any document VA treated as a claim.
2. 2List every C&P exam, DBQ, and medical opinion with its date and every condition and diagnosis it records, including ones VA never asked about.
3. 3List what each rating decision adjudicated, issue by issue, from the decision narrative and the code sheet.
4. 4Match the lists. Every claimed condition should land on a decision. Every exam should tie to an issue a decision decided.
5. 5Flag the orphans: exams with no decision that relied on them, issues claimed but never decided, and diagnoses an examiner recorded that no decision decides.
6. 6Run each orphan through the implicit denial factors. A different diagnosis for the same symptoms, discussed in the same decision, is weak ground. A separate body system the decision never touched is strong ground.

Commander for Advocates runs part of this cross-check: it flags exams with no decision found and diagnoses an examiner recorded that no decision decides. Each flag still needs a representative's judgment against the claim documents and the implicit denial factors.

What to do with a pending claim you find

• Ask VA to adjudicate it. Write to the regional office identifying the claim by document, receipt date, and the decisions that did not decide it, and ask for a decision with the receipt date as the claim date.
• If the issue is on appeal at the Board, identify it there so it is not left out again.
• If VA will not act, the Court of Appeals for Veterans Claims can grant extraordinary relief by petition under its Rule 21, which requires showing a clear and indisputable right to the writ and no adequate alternative means to obtain relief.

Frequently asked questions

What is a pending claim under 38 C.F.R. § 3.160?

Section 3.160(c) defines a pending claim as a claim that has not been finally adjudicated. Section 3.160(d) explains when a claim becomes finally adjudicated: when the time to file an available review option expires, or when review concludes.

Can you file a CUE motion on a claim VA never decided?

A CUE motion is the wrong tool for that. Section 3.105(a)(1) allows CUE review "at any time after a decision is final," so CUE needs a final decision. An issue VA never decided is either still pending or was implicitly denied, and the argument should start there.

What is the implicit denial rule?

It is a Federal Circuit doctrine under which a claim is deemed denied, and finally adjudicated, even though VA did not expressly address it, when it would be clear to a reasonable person that the decision on a related claim disposed of it too (Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009)).

What factors decide whether a claim was implicitly denied?

The CAVC looks at the relatedness of the claims, whether the decision alluded to the pending claim, the timing of the claims, and whether the claimant was represented (Cogburn v. Shinseki, 24 Vet. App. 205 (2010)).

Why does a pending claim matter for the effective date?

Under § 3.400, an award on an initial claim takes effect from the date VA received the claim or the date entitlement arose, whichever is later. A claim that stayed pending keeps its original receipt date.

Where do unadjudicated claims usually hide in a claims file?

In conditions listed on a claim form that no decision mentions, and in C&P exams and DBQs that record a diagnosis no decision decides. Cross-referencing every exam against every rating decision is the fastest way to find them.