[00:00:30] Speaker 01:
Next case is Owen Bozeman versus the Secretary of Veterans Affairs 2015-7020, Mr. Lacroix.

[00:00:43] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:46] Speaker 02:
The Veterans Court erred when it excused the Board of Veterans Appeals clear failure to consider relevant evidence in support of Mr. Bozeman's claim.

[00:00:54] Speaker 02:
38 U.S.C.

[00:00:55] Speaker 02:
Section 7104A

[00:00:56] Speaker 02:
It poses upon the Board of Veterans Appeals a duty, independent of any argument specifically raised by the claimant, to look at all the evidence of record and make its decision based on the entire record before it.

[00:01:07] Speaker 01:
But didn't we have three opportunities to raise that and fail to do so?

[00:01:14] Speaker 02:
Regardless of the arguments raised at the Veterans Court, this evidence, the 2005 VA examination, was before the board at the time it made its decision.

[00:01:23] Speaker 02:
Therefore, contrary to the Veterans Court's interpretation of the law,

[00:01:27] Speaker 02:
The Board of Veterans' Appeals had a full and fair opportunity to consider the impact of the 2005 VA examination on its decision.

[00:01:35] Speaker 00:
Your complaint is that the board did not mention the 2005 decision?

[00:01:46] Speaker 02:
Our complaint is that the board arrived at a finding that Mr. Bozeman's impairments were related to substance abuse rather than PTSD

[00:01:54] Speaker 02:
without adequate consideration of this 2005 VA examination, which specifically states that his substance abuse is related to his PTSD.

[00:02:02] Speaker 00:
Because the board, the board in its decision, I'm looking at, I think this is 116 of the appendix, it says, in adjudicating the claim, the board has reviewed all of the evidence in the veteran's claims file, including any found in virtual VA, and the 2005 exam was part of that file.

[00:02:21] Speaker 02:
But the board never made any explanation as to why it found the 2002 VA examinations findings more probative than the 2005.

[00:02:32] Speaker 04:
Is your problem here the way the Veterans Court rejected this argument, not just because?

[00:02:38] Speaker 04:
Because it seems to me that if the Veterans Court had said, the board said that thing that my colleague just quoted, and they considered all the evidence, we have to presume that they considered the 2005

[00:02:50] Speaker 04:
I think it's the 2005 doctor's report.

[00:02:52] Speaker 04:
That's correct.

[00:02:53] Speaker 04:
And said, we'll presume that they considered it and rejected it and relied on the 2002.

[00:02:59] Speaker 04:
You wouldn't be here, would you?

[00:03:01] Speaker 04:
Because that would be the Veterans Court saying that there was inadequate reasons and bases, and we can't review that.

[00:03:06] Speaker 02:
That would be correct, Your Honor.

[00:03:08] Speaker 02:
That would be an entirely different situation.

[00:03:10] Speaker 02:
What we have here is the Veterans Court not reaching the merits of the Board of Veterans Appeals decision.

[00:03:16] Speaker 02:
By using their issue provision.

[00:03:18] Speaker 02:
Exactly, Your Honor.

[00:03:21] Speaker 04:
I'm struggling a little bit with this because I do think that it seems to me that they may have legally expanded the scope of the issue of preclusion rule erroneously, but I'm wondering whether that's actually true or it's just a misapplication of their issue of preclusion rule, which even if we disagreed with would still be an application of law of the fact that we can't review.

[00:03:50] Speaker 02:
The reason it's not an application of law to fact is that here we have 7104A, which directs the board to look at this evidence regardless of what arguments are raised.

[00:04:02] Speaker 02:
Issued preclusion cannot apply to something that the board was supposed to address whether or not the veteran raised it in the first place.

[00:04:13] Speaker 02:
Sims precludes...

[00:04:18] Speaker 04:
get away from talking about the viability of the issue of preclusion rule altogether.

[00:04:22] Speaker 04:
I know you disagree with it and think it's contrary to Sims, but let's assume that it's a good rule.

[00:04:29] Speaker 04:
I'm worried that they've expanded it to go beyond issue preclusion to evidence preclusion.

[00:04:35] Speaker 04:
And it seems to me that

[00:04:38] Speaker 04:
Assuming that we accept that issue preclusion is a good rule, even if the board is required to look at everything and articulate all legal theories, the issue preclusion could still preclude it on a legal theory that was never raised until the veteran court.

[00:04:53] Speaker 04:
But here, the legal theory is, and the legal argument is all about an earlier effective date, right?

[00:05:00] Speaker 04:
And so you've raised this all throughout.

[00:05:02] Speaker 04:
And all you said to the Veterans Court was they didn't consider this piece of evidence.

[00:05:07] Speaker 04:
And that's not a new legal argument, is it?

[00:05:10] Speaker 04:
No, that's correct, Your Honor.

[00:05:11] Speaker 04:
It's not a new legal argument.

[00:05:12] Speaker 04:
So it seems to me that that's an improper use of issue preclusion.

[00:05:17] Speaker 04:
But does it go beyond the line of an improper application to an improper legal interpretation?

[00:05:27] Speaker 02:
I think that this court can

[00:05:30] Speaker 02:
can interpret the rule.

[00:05:32] Speaker 02:
And I think that that's what precedent says in Sims.

[00:05:37] Speaker 02:
And I think it's more consistent with this court's precedent in Robinson and the recent case of Scott, that when it comes to the board's duty to consider evidence in an argument based on a failure to comply with that duty, issue preclusion cannot apply to that situation.

[00:06:00] Speaker 02:
Because of the existence of 7104.

[00:06:03] Speaker 04:
Because there's no new legal issue that's being raised for the first time.

[00:06:07] Speaker 04:
Precisely.

[00:06:08] Speaker 04:
It's just additional argument, evidentiary argument, in favor of that legal argument that's already been raised to the board.

[00:06:16] Speaker 04:
That's exactly correct, Your Honor.

[00:06:17] Speaker 02:
There is no need.

[00:06:18] Speaker 00:
Let me just pick up.

[00:06:19] Speaker 00:
So is what you're saying that 7104 prevents the exhaustion rule from being used when evidence is involved

[00:06:31] Speaker 00:
Is that it?

[00:06:35] Speaker 02:
That's right, because the board needed to do this, whether or not the veteran raised the argument to the board about the evidence, because the board needed to consider that evidence and as part of that consideration determining its relevance and how that would affect its ultimate decision, there is no question of exhaustion in this case because the issue was before the board at the time it made its decision in light of

[00:07:00] Speaker 02:
the statute passed by Congress.

[00:07:02] Speaker 00:
So you would say that Maggot or Maget doesn't speak to this, it speaks to legal issues?

[00:07:12] Speaker 00:
I would argue first that in that case, we had not a question of looking at evidence, but two legal issues that were raised.

[00:07:27] Speaker 02:
Well, first of all,

[00:07:29] Speaker 02:
That case came before Sims, so I would argue that Sims did not overrule that case.

[00:07:40] Speaker 02:
I think Scott here is instructive, because Scott looks at a narrow exception to the rule in Sims, where if there is a procedural issue, something that would have been on the veteran to raise in the first place upon being notified

[00:07:58] Speaker 02:
you have not renewed your request for a hearing.

[00:08:00] Speaker 00:
He didn't then come back and say... What about the fact here, Mr. Rocker, that we have a little bit of an unusual, not an unusual, but a little bit of a different situation.

[00:08:10] Speaker 00:
We're not here talking about a direct appeal up from the BVA where the CAVC said, no, you didn't raise this before the BVA.

[00:08:19] Speaker 00:
We're looking at this in the setting of a situation where there was a joint motion for remand very specifically pointing

[00:08:27] Speaker 00:
the board to two issues, one of which the TDIU isn't before us anymore.

[00:08:35] Speaker 00:
But isn't that a different situation here?

[00:08:39] Speaker 00:
I mean, what is wrong in that situation of applying the exhaustion requirement to effect?

[00:08:49] Speaker 02:
Two responses to that, Your Honor.

[00:08:51] Speaker 02:
First and foremost, the joint motion for remand in this case

[00:08:56] Speaker 02:
expressly left open the board's duty to look at all of the evidence of record, conduct a critical examination of the justification for its prior decision, and address all issues of fact and law presented on the record.

[00:09:11] Speaker 02:
So the board was actually expressly directed to comply with all of those statutory duties on remand.

[00:09:17] Speaker 02:
There's really nothing additional

[00:09:19] Speaker 02:
that could have been done to trigger the board's duties to comply with the statutes that are already on the books.

[00:09:25] Speaker 04:
I mean, if we apply this exhaustion rule here, isn't it going to either require the veterans, when they agree to remand motion, to list specifically every single piece of evidence they want reconsidered, or when it goes back to the board and file another brief, to the extent they have an opportunity, saying every single piece of evidence, or to say, look at everything?

[00:09:45] Speaker 04:
That's right, you're on that.

[00:09:48] Speaker 04:
The thing that's difficult for me about this case is that it seems like it's hard to tell one way or another because the board didn't specifically say it, but they had the record before it.

[00:09:58] Speaker 04:
So we would normally, I think, presume that they did look at this and just didn't find the 2005 report persuasive.

[00:10:05] Speaker 04:
And it seems like the Veterans Court should have said that on the merits, if that's what they thought, rather than use this

[00:10:12] Speaker 04:
this loophole to duck the merits argument.

[00:10:16] Speaker 02:
And I think that's correct, Your Honor.

[00:10:19] Speaker 02:
We don't know exactly what the Veterans Court may have found.

[00:10:23] Speaker 02:
They may have found that the board's failure to discuss this 2005 examination was prejudicial, because on remand, the board might find that the 2005 examination was more probative.

[00:10:36] Speaker 02:
But that's not before the court, of course, because the Veterans Court

[00:10:41] Speaker 02:
went around this issue entirely using this exhaustion rule.

[00:10:44] Speaker 02:
And the fact of the matter is, Your Honors, there's only one statute that gives the board jurisdiction to make a decision on a claim.

[00:10:51] Speaker 02:
And that's 7104.

[00:10:53] Speaker 02:
And Congress could have, if they wished to, when they passed the VJRA, put a second statute right beside that saying, for cases coming back from the Veterans Court, the board's duties are narrowed.

[00:11:03] Speaker 02:
They only need to address what the Veterans Court did.

[00:11:06] Speaker 02:
But Congress chose not to do so.

[00:11:10] Speaker 02:
No, that's okay.

[00:11:11] Speaker 02:
You're in time.

[00:11:12] Speaker 02:
If the panel has no further questions, I'll simply reserve the remainder of my time for rebuttal.

[00:11:17] Speaker 01:
We'll do that.

[00:11:18] Speaker 01:
Thank you.

[00:11:19] Speaker 01:
Mr. Hockley.

[00:11:27] Speaker 03:
May I please support?

[00:11:30] Speaker 03:
So I guess we're talking about this case in terms of whether or not the Veterans Court precluded somebody or

[00:11:38] Speaker 03:
affirmed the board's failure to consider evidence, which I think in response to Judges Hughes' own observations calls into question the presumption that the board, and Judge Schall's note at the beginning with respect to the site of the record, presumption that the board did consider all the evidence in this court's... But they didn't say that.

[00:12:01] Speaker 04:
You know, I'm sure you listened to the questions.

[00:12:03] Speaker 04:
It seems to me a little troubling

[00:12:06] Speaker 04:
that they're extending this issue preclusion rule, which I think we're being called on to overrule altogether.

[00:12:15] Speaker 04:
I'm not sure that that's correct, but they're extending it to a pretty far extreme that's going to, in essence, require veterans to do some kind of specific pleading on remands or on the like about every single specific piece of evidence they want the board to look at in terms of their argument.

[00:12:36] Speaker 04:
That seems to me to be an awful burden to impose on veterans, particularly a lot of them that are unrepresentative.

[00:12:42] Speaker 04:
Why isn't this issue preclusion rule confined only to legal arguments that weren't raised in time, instead of evidentiary arguments in support of a legal argument that has been raised?

[00:12:56] Speaker 03:
Well, the decision here could have been better in the sense that it could have described specifically

[00:13:05] Speaker 03:
what had already been done by the board.

[00:13:07] Speaker 03:
And in this case, when you look at the entire record, it's clear that in 2012, the board looks at this question of whether Mr. Boseman's entitled to an increased, remember, he's already been service-connected, and it's had a rating going back to 93.

[00:13:23] Speaker 03:
So the precise question after the first board's decision, which found that he was 70% entitled from February 2003 on, but 50% prior.

[00:13:35] Speaker 03:
was whether he was entitled to 70% for the 18 months prior to February 2003.

[00:13:41] Speaker 03:
That was the issue that was raised.

[00:13:44] Speaker 03:
And the argument raised before the Veterans Court was that there was evidence in the record with respect to the 2002 medical opinion that suggested that perhaps the medicine was causing him problems, but they couldn't tell what the medicine was that the board was referring to.

[00:14:04] Speaker 03:
the medicine that he was taking for his PTSD, which would seem to suggest perhaps maybe he deserved an increase, or was it recreational drug use that was causing this?

[00:14:14] Speaker 03:
So that's the issue that's presented.

[00:14:17] Speaker 03:
And so that's the issue that's romantic.

[00:14:19] Speaker 04:
I understand all this.

[00:14:20] Speaker 04:
If the Veterans Court had said,

[00:14:22] Speaker 04:
Right.

[00:14:22] Speaker 04:
You know, the board looked at all this, and even though they didn't specifically cite the 2005 report, they presumably looked at it.

[00:14:28] Speaker 04:
And their decision rejecting an earlier effective date is not clearly erroneous and supported by evidence.

[00:14:35] Speaker 04:
That'd be fine.

[00:14:35] Speaker 04:
But they didn't say that.

[00:14:36] Speaker 04:
They said it weighs in favor of invoking exhaustion doctrine not to even consider the argument about whether there was a reasons and basis deficiency for not citing the 2005 thing.

[00:14:49] Speaker 04:
That seems to me to be

[00:14:51] Speaker 03:
different than just saying they probably they considered it without citing it I think that the argument that see as I understand the argument I was presented to the Veterans Court it was that there was an error in not understanding that the 2005 document was a was a an interpretation of the 2002 document but the issue before the that's a new legal argument I think it's a new

[00:15:16] Speaker 04:
Can I just step back from the facts in this case?

[00:15:19] Speaker 04:
Do you agree that it's not appropriate to apply this issue exhaustion rule to evidentiary pieces of evidence that maybe weren't specifically pointed out but were in the record and the board was required to look at?

[00:15:35] Speaker 03:
I think that generally no, but I could see possibly exceptions depending upon the nature of the argument.

[00:15:42] Speaker 03:
Well if the evidence are pointing to

[00:15:45] Speaker 04:
implicates a new legal theory, of course, and that's issue of preclusion because it's a new legal theory.

[00:15:50] Speaker 04:
But here, there's no new legal theory.

[00:15:52] Speaker 04:
Everybody's arguing about effective date.

[00:15:54] Speaker 04:
The VA was certainly on notice that that's what the veteran was arguing about.

[00:15:58] Speaker 04:
He's just pointing to a new piece of evidence.

[00:16:01] Speaker 03:
I'm not sure, though.

[00:16:04] Speaker 03:
Frankly, when you read the entire briefing before this court, there's suggestion that the argument really is turning into a secondary service connection argument.

[00:16:14] Speaker 03:
that by reading the 2005 opinion, there's a suggestion that- That's not what the Veterans Court says.

[00:16:20] Speaker 03:
The Veterans Court doesn't say that, no.

[00:16:22] Speaker 03:
The Veterans Court just said that they weren't going to entertain this new argument.

[00:16:26] Speaker 03:
But you're right.

[00:16:27] Speaker 03:
They don't say that in the opinion.

[00:16:28] Speaker 03:
And it's not a new legal argument, though.

[00:16:29] Speaker 03:
It's a new evidentiary argument.

[00:16:31] Speaker 03:
Well, to the extent someone is arguing that a 2005 medical opinion actually supports an argument on behalf of Secondary Service Connection, that's a new claim.

[00:16:38] Speaker 03:
It's a new issue.

[00:16:39] Speaker 03:
It's a new argument.

[00:16:44] Speaker 03:
You know, that would be subject to issue preclusion.

[00:16:47] Speaker 04:
And I'm prepared to address that, but... Well, no, but that's... I mean, the Veterans Court didn't phrase it that way.

[00:16:51] Speaker 04:
No, the Veterans Court did not.

[00:16:52] Speaker 04:
The Veterans Court phrased it in terms of this isn't a piece of evidence that they didn't specifically point out to the board, and therefore we're going to apply exhaustion.

[00:16:59] Speaker 04:
And my response to the... If that is a correct reading of what happened here, I know you dispute that somewhat.

[00:17:07] Speaker 04:
If that's a correct reading, then isn't the implication

[00:17:12] Speaker 04:
of the board, of the Veterans Court's decision that they think issue exhaustion can apply to evidentiary?

[00:17:19] Speaker 03:
To the requirement to consider all the evidence at the second time.

[00:17:22] Speaker 03:
I mean, if that's the reading, then, you know, that would... You think that's a correct reading, if that's the reading?

[00:17:30] Speaker 03:
I don't think that's a... I don't think that's a correct reading.

[00:17:33] Speaker 03:
But I don't think that's what happened.

[00:17:35] Speaker 03:
I do think that what happened here is simply that the Veterans Court determined that the issue before

[00:17:41] Speaker 03:
them the issue before the board at the whole time was this 18 month period about increased service connection and then that was what the board addressed and that the 2001 and 2002 medical opinions were more probative of that period of time than was a 2005 medical opinion and so therefore

[00:18:03] Speaker 03:
It's not an error on the part of the court to not, or to the board to not reference 2005.

[00:18:08] Speaker 04:
And that would be great, and you would definitely win if that's what the Veterans Court had said, or at least I think you would definitely win.

[00:18:16] Speaker 04:
Sorry.

[00:18:17] Speaker 04:
But they didn't say that.

[00:18:19] Speaker 04:
And they're using this procedural loophole in a way that, to me, if we continue to allow the Veterans Court to do this and allow the Secretary to argue this issue preclusion rule in a broad way at the Veterans Court,

[00:18:31] Speaker 04:
seems to burden veterans in a way that the system wasn't intended to do.

[00:18:35] Speaker 03:
But here's the problem.

[00:18:37] Speaker 03:
And there's ways to deal with this without reversing.

[00:18:43] Speaker 03:
Because frankly, what the board did here, which is really what's at issue, was proper.

[00:18:48] Speaker 03:
They looked at the issue that was presented.

[00:18:50] Speaker 03:
They focused on the pertinent probative evidence, cited the fact that they had.

[00:18:53] Speaker 04:
Sure.

[00:18:53] Speaker 04:
I mean, the problem here is not with the board.

[00:18:55] Speaker 04:
The problem is with the Veterans Court and the Secretary.

[00:18:57] Speaker 04:
urging this issue of preclusion rule at the Veterans Court and the Veterans Court buying off on it.

[00:19:03] Speaker 04:
But a remand... If we affirm this, doesn't that just encourage the Secretary to expand the use of this even more at the Veterans Court?

[00:19:10] Speaker 03:
It depends on what grounds you affirm it.

[00:19:13] Speaker 03:
I mean, I know this could be sensitive, but... But we can't affirm on grounds that the Veterans Court didn't rely on.

[00:19:19] Speaker 03:
You could find that any remand at this point isn't necessary because the

[00:19:26] Speaker 03:
The board did.

[00:19:27] Speaker 03:
The agency did what it was supposed to do here.

[00:19:30] Speaker 04:
So you're suggesting, it sounds to me like you're suggesting a harmless error argument, which you didn't put in your briefs.

[00:19:36] Speaker 03:
No, but that's because.

[00:19:37] Speaker 03:
It needs to be problematic with our jurisdictional statute anyway.

[00:19:41] Speaker 03:
We look at this case as one suggesting that a new issue was being raised, consistent with what the Veterans Court said, despite the fact that the argument is that evidence wasn't considered really

[00:19:55] Speaker 03:
what's being argued here is a basis for increase in the rating and the too pertinent contemporaneous medical.

[00:20:02] Speaker 04:
I understand your point.

[00:20:03] Speaker 04:
I just want to be very clear about and make sure I know where you are on this point because I think you agree that if the Veterans Court interpretation of issue preclusion extends to a rule that would allow it to refuse to consider

[00:20:23] Speaker 04:
argument about certain pieces of evidence unless they were specifically raised to the board on remand by the veteran, that that's an incorrect legal interpretation of issue preclusion.

[00:20:35] Speaker 04:
I'm going to respond.

[00:20:36] Speaker 04:
As long as it pertains to a legal issue that has been raised.

[00:20:42] Speaker 04:
That's the presumption.

[00:20:43] Speaker 04:
If the legal issue has been raised, the fact that on appeal after a remand, the veteran points to evidence that was in the record that was supposed to have been considered but may not have been specifically pointed out by the veteran, that is not barred by issue preclusion.

[00:21:04] Speaker 03:
I could see a situation where what you're suggesting is that without having

[00:21:11] Speaker 03:
statutes in the case law provide the claimant with the opportunity to identify the weakness in the board's decision.

[00:21:17] Speaker 03:
And they go back, and they have the opportunity under Kritchikowski and Kaye, the Veterans Court's precedent with respect to post-remand submission of evidence and argument, to do that.

[00:21:29] Speaker 03:
And they don't.

[00:21:31] Speaker 03:
And whether you call it issue preclusion or whether you call it finally deciding a waiver of an opportunity,

[00:21:42] Speaker 03:
that a situation could arise in which the Veterans Court would be within its discretion to say, no, this type of thing should have been raised to the board, brought to its attention, made some to the agency, along the lines of... Even when the board already has an obligation to consider that evidence?

[00:21:57] Speaker 03:
I think you get back to the question of how reasonable the evidence is raised with respect to the issue that's presented.

[00:22:07] Speaker 03:
So a factor in the analysis would be

[00:22:10] Speaker 03:
Well, if it's really obvious that they should have picked this up, then the board should have picked it up.

[00:22:16] Speaker 03:
And the fact that the appellant didn't raise it to them doesn't matter.

[00:22:19] Speaker 03:
The board should have picked it up.

[00:22:21] Speaker 03:
If it's less obvious, then the things we point out to our brief with respect to mandate rule and other things like that can factor into the Veterans Court's decision as to whether or not enough is enough.

[00:22:33] Speaker 03:
The remand processes should end because everyone had an opportunity to make their arguments and

[00:22:40] Speaker 03:
They did, and they didn't make that argument.

[00:22:42] Speaker 04:
Well, let's say hypothetically in this case, the Veterans Court had found the board erred because it didn't look at this 2005 report.

[00:22:52] Speaker 04:
So there's no dispute that they didn't look at it, unlike here where I think factually they probably did and just discarded it.

[00:22:59] Speaker 04:
Let's just assume the board specifically did not look at it, and the Veterans Court found that that's an error.

[00:23:07] Speaker 04:
You know, that's probably a reasons and basis remand or some other kind of remand.

[00:23:12] Speaker 04:
But then they go on and say, but even though that's an error, because the veteran didn't specifically raise this piece of evidence at the board, we're going to apply issue preclusion.

[00:23:24] Speaker 04:
Is that a proper interpretation of issue preclusion?

[00:23:33] Speaker 03:
Probably not.

[00:23:36] Speaker 03:
Okay.

[00:23:36] Speaker 04:
I just want to see how far you're pushing it.

[00:23:38] Speaker 04:
I understand why you don't want to concede that you can never use issue of preclusion for evidentiary things, because like you, I might find some rare things.

[00:23:49] Speaker 03:
This one seems, if you assume that the Board didn't consider it, a step too far.

[00:23:55] Speaker 03:
But again, I think as Your Honors pointed out earlier, you have Burnclaw and Hartman that are precedent in this Court.

[00:24:03] Speaker 03:
And the presumption is that it was considered, especially when there's some suggestion by the board that they did consider it.

[00:24:09] Speaker 03:
And even though they didn't analyze it, it makes perfect sense that it wasn't analyzed.

[00:24:13] Speaker 04:
It seems like that would have been a better argument for the secretary to make to the Veterans Court and for the Veterans Court to buy off on rather than this extension of issue preclusion.

[00:24:22] Speaker 03:
Possibly.

[00:24:25] Speaker 03:
I'll be back in a few minutes.

[00:24:29] Speaker 01:
Thank you, Mr. Hoffy.

[00:24:31] Speaker 01:
Mr. Ilaqua has a few minutes.

[00:24:35] Speaker 02:
Thank you, Your Honor.

[00:24:37] Speaker 02:
The question for whether or not exhaustion can apply to any particular argument is whether or not the issue was presented to the board under 7104A, not under the pleadings by the veteran in the Veterans Court, not by the pleadings by the veteran to the board.

[00:24:55] Speaker 02:
The issue is whether 7104 and the evidence of record places the issue before

[00:25:01] Speaker 02:
the board.

[00:25:02] Speaker 00:
What we have here... You heard the discussion between the colloquy, between Judge Hughes and Mr. Hockey, and I'm thinking to the tail end of that discussion, are you saying there could never be a situation where the exhaustion doctrine could properly be applied to prevent a new issue from being raised?

[00:25:26] Speaker 00:
For example, say you had a

[00:25:30] Speaker 00:
a joint remand motion and an order following that motion.

[00:25:34] Speaker 00:
And it very specifically spelled out, said, all right, the board is to go back and look at items of evidence A, B, C, D, and E. No more than that.

[00:25:47] Speaker 00:
And then following that, the board looks at A, B, C, D, and E. Then the case comes back up, and the veteran raises F.

[00:26:01] Speaker 00:
Now, would you say that in that situation even, you could not have exhaustion as a bar?

[00:26:09] Speaker 02:
It would depend, Your Honor, on whether or not the prior board decision was vacated in its entirety.

[00:26:15] Speaker 02:
And we've seen cases where, for example, the Veterans Court will say, we affirmed the board's decision with regard to secondary service connection, but we're remanding strictly the issue of direct service connection.

[00:26:29] Speaker 02:
that could be a case where the board only needs to address direct service connection on remand.

[00:26:35] Speaker 02:
But if the Veterans Court, and even if a joint motion for remand vacates the entire board's decision, now we have no final board decision on the issue of service connection.

[00:26:45] Speaker 02:
And 7104 is the only statute that describes what is supposed to happen in a final board decision.

[00:26:52] Speaker 02:
And the board's decision can't just be limited

[00:26:55] Speaker 02:
to certain pieces of evidence because the board also needs to look at how those pieces of evidence interact.

[00:27:00] Speaker 04:
If that joint motion for remand, because it seems to me that if it's a narrow order, what they're going to do is not vacate.

[00:27:08] Speaker 04:
They're going to say, you maybe didn't consider these five pieces of evidence properly, look at them again.

[00:27:15] Speaker 04:
If it's not vacated, then it's okay, isn't it, for the board to confine its review to those

[00:27:23] Speaker 04:
things directed by the Veterans Court, and unless you raise additional things, it wasn't incumbent upon the board to look further.

[00:27:35] Speaker 00:
I think that... I agree that's not the case you have here.

[00:27:39] Speaker 00:
I agree that's not your case.

[00:27:41] Speaker 00:
The facts are different from that, from the hypothetical that I posited.

[00:27:45] Speaker 00:
But focus on that hypothetical and that Judge Hughes was asking about.

[00:27:50] Speaker 02:
It's hard to imagine, however, how the

[00:27:53] Speaker 02:
Veterans Court could send an issue back without vacating the board's decision, because 7261A says they can set aside findings and decisions.

[00:28:06] Speaker 02:
But sending it back only to look at specific pieces of evidence without vacating the board's decision, if they're doing that, then they're leaving the board's prior final denial of the claim in place.

[00:28:19] Speaker 02:
So it's difficult.

[00:28:22] Speaker 02:
to imagine how the Veterans Court could actually do such a thing.

[00:28:26] Speaker 04:
I understand, but let's assume they can.

[00:28:32] Speaker 04:
Basically, I think what we're getting at is the Veterans Court directs a specific limited remand.

[00:28:40] Speaker 04:
The board complies with that.

[00:28:41] Speaker 04:
The veteran doesn't raise any new arguments or evidence or anything while it's at the board and then tries to do it.

[00:28:49] Speaker 04:
on appeal again to the Veterans Court after that limited remand, that seems like a proper place for issue of preclusion, even if it's an evidentiary issue.

[00:28:58] Speaker 02:
I think it would need to be very, the Veterans Court would need to be very direct and specific in order for that to succeed.

[00:29:06] Speaker 02:
Sure.

[00:29:06] Speaker 04:
They would need to say... And the Veterans probably not going to agree to that kind of limited remand anyway, but hypothetically it could happen.

[00:29:12] Speaker 02:
That's correct.

[00:29:14] Speaker 01:
Thank you, counsel.

[00:29:15] Speaker 01:
Thank you very much.