[00:00:02] Speaker 04:
Good morning.

[00:00:04] Speaker 04:
We have four argued cases this morning.

[00:00:11] Speaker 04:
Two from the Veterans Court, one from the MSPB, and one from the PTO.

[00:00:18] Speaker 04:
The first case before the court, 14-7059 Lawson v. McDonald, Ms.

[00:00:26] Speaker 04:
Liddingson?

[00:00:27] Speaker 04:
Did I pronounce it?

[00:00:29] Speaker 04:
That's correct.

[00:00:29] Speaker 04:
Okay.

[00:00:30] Speaker 04:
You want to reserve just two minutes for rebuttal?

[00:00:32] Speaker 02:
That's correct.

[00:00:33] Speaker 04:
Okay.

[00:00:34] Speaker 04:
You may proceed.

[00:00:40] Speaker 02:
May it please the Court.

[00:00:42] Speaker 02:
The Veterans Court aired in remanding Mr. Lawson's case back to the agency without evaluating the merits of his claim for service-connected benefits prior to June 21, 2004 for two reasons.

[00:00:55] Speaker 02:
First, the court erred in remanding for a determination of whether or not Mr. Lawson in fact received notice of the February 5, 2003 rating decision when that inquiry is irrelevant under 38 USC Section 5104A.

[00:01:09] Speaker 02:
And second, the court erred in remanding the cue claim errors that Mr. Lawson raised before the Veterans Court and before the Board without adjudicating the merits of those claims when resolution of the cue claim errors would entitle Mr. Lawson to benefits greater than

[00:01:24] Speaker 02:
what he would be entitled to based on resolution of the notice error.

[00:01:28] Speaker 04:
Is it your argument on the second point that resolution of the Q claim errors would actually moot the other question about whether he received notice?

[00:01:38] Speaker 02:
That is true, Your Honor, because the Q claim errors would entitle, if adjudicated in Mr. Lawson's favor, would entitle Mr. Lawson to benefits potentially back to September 1998 until June 21st, 2004.

[00:01:51] Speaker 02:
it subsumes the period that would be covered under the notice error and thus it would be unnecessary to resolve the notice error if the Q claim errors were resolved in Mr. Lawson's favor.

[00:02:03] Speaker 02:
However, Mr. Lawson has a couple more steps in this case to get to benefits based on Q claim errors because the board found that he had not adequately raised Q, so he needs that decision reversed and then he also needs a decision on the merits of the Q claim errors.

[00:02:18] Speaker 02:
So he has potentially two visits back to the board before he can get resolution of that, whereas the notice error would entitle him to benefits based on resolution of just one error.

[00:02:27] Speaker 04:
Well, doesn't that actually cut against you in some ways?

[00:02:30] Speaker 04:
Because if he's still got two steps left, I mean, one of your arguments, I assume, is that veterans shouldn't be bounced back and forth.

[00:02:37] Speaker 04:
They shouldn't have to have all these remands.

[00:02:39] Speaker 04:
If the resolution of the cue claim error at best would allow a remand from the Veterans Court to assess

[00:02:47] Speaker 04:
Again, the question of whether he's properly raised it under the proper standard, doesn't that cut against the argument that we shouldn't be bouncing him back and forth?

[00:02:58] Speaker 02:
Well, the Q claim error should be resolved at the same time so that he has a chance of getting resolution of that error sooner rather than later.

[00:03:06] Speaker 02:
It doesn't make sense to send him back to adjudicate a small portion of his claim for veteran's benefits.

[00:03:13] Speaker 02:
specifically the portion from November 2002 until June 2004, when the cue claim errors would entitle him to a greater portion of the benefit.

[00:03:22] Speaker 02:
So even if he gets resolution of the notice error, he's still going to have to keep continuing with his claim.

[00:03:27] Speaker 02:
So making him go through three sets of remands potentially as opposed to two is harmful to Mr. Lawson.

[00:03:34] Speaker 01:
Well, whether they send him back or not is not based on what we think makes sense, correct?

[00:03:40] Speaker 02:
I'm sorry, Your Honor.

[00:03:41] Speaker 01:
You said it makes no sense to do this.

[00:03:44] Speaker 01:
We're not here to determine whether you should go back or not go back on what we think is sensible.

[00:03:48] Speaker 01:
That's not the test, is it?

[00:03:50] Speaker 02:
Yes, Your Honor.

[00:03:51] Speaker 02:
But the statute, 38 USC, section 7261, provides that the Veterans Court should decide those issues that are necessary to its decision.

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And here, in order for there to be a decision on the entirety of Mr. Lawson's claim, it is necessary to resolve and move the cue claim errors forward.

[00:04:09] Speaker 02:
Mr. Lawson should have received adjudication on those Q claim errors.

[00:04:12] Speaker 04:
And the resolution that you want or what you want the Veterans Court to decide is you want the Veterans Court to tell the board to apply a more lenient standard to a consideration of whether the Q claim was raised.

[00:04:27] Speaker 04:
Is that right?

[00:04:28] Speaker 02:
That's correct.

[00:04:28] Speaker 02:
Mr. Lawson is entitled to a liberal and sympathetic reading of his allegation of Q.

[00:04:34] Speaker 02:
and the board aired by not giving that reading to the submissions that Mr. Lawson submitted to the agency pro se.

[00:04:41] Speaker 04:
While back on the other issue, do you think that the nature of the remand would preclude the board from reconsidering that question?

[00:04:51] Speaker 02:
Judge Inouye, I'm not sure that it would necessarily preclude, but as a practical matter, the board is not going to change its adjudication of that question because the record is closed.

[00:05:00] Speaker 02:
The question of whether or not

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The papers Mr. Lawson submitted to the agency already sufficiently raised Q, that's based on the documents that are already before the board.

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So this is not a situation where on remand there's going to be new evidence or argument.

[00:05:12] Speaker 02:
It's already there.

[00:05:13] Speaker 02:
So what will happen under the current state of the Veterans Court's remand order, it's going to go back to the board for the notice error and nothing's going to change on the Q claim errors.

[00:05:22] Speaker 02:
Mr. Lawson is just going to get another denial.

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And then he's going to be back in the Veterans Court again.

[00:05:27] Speaker 01:
So you're saying the board is going to ignore the directive from the Veterans Court to consider the QKMs?

[00:05:34] Speaker 02:
Your Honor, my reading of the Veterans Court remand order is that the Veterans Court directs the board to allow new evidence on the matter remanded to A2 of the record.

[00:05:46] Speaker 02:
The matter remanded is whether or not there was in fact notice under Section 5104.

[00:05:51] Speaker 02:
So arguably he does not have permission to bring up new evidence even if there were new evidence and argument to be made.

[00:05:57] Speaker 01:
You understand I might not read it the same way you're reading it.

[00:06:00] Speaker 01:
It seems like to me that the remand is broader than you're reading it and directs them to consider those key claim errors as well.

[00:06:10] Speaker 02:
Assuming that is the case, that the remand is broader.

[00:06:12] Speaker 01:
If you're telling me even if that's what the Veterans Court told them to do, they're going to basically... There's nothing that's going to change.

[00:06:17] Speaker 02:
The records close.

[00:06:18] Speaker 01:
They're going to ignore the directive and just give them the same result.

[00:06:22] Speaker 02:
There will be the same result, right.

[00:06:24] Speaker 02:
The record is closed as to whether he adequately raised Q. But the nature of the remand doesn't cause them to reopen the record, or at least the record to be subject to being reviewed.

[00:06:38] Speaker 02:
The Veterans Court's remand

[00:06:40] Speaker 02:
would permit reopening of the record.

[00:06:42] Speaker 02:
But typically you have a case where there's a medical issue.

[00:06:45] Speaker 02:
Here it's not something where there's anything to add to the record.

[00:06:49] Speaker 02:
The issue is whether or not Mr. Lawson's pro se filing is adequately raised to.

[00:06:53] Speaker 02:
It's closed.

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There's nothing new to be added in terms of evidence or argument.

[00:06:56] Speaker 02:
Mr. Lawson just needs adjudication of whether or not the board erred in denying that he had adequately raised to.

[00:07:02] Speaker 02:
And that's a decision that the Veterans Court is ultimately going to have to make, whether

[00:07:06] Speaker 02:
on a remand from this court with a directive to the Veterans Court or whether Mitchell Lawson has to go back to the board and then back up to the Veterans Court.

[00:07:13] Speaker 02:
The issue is going to be the same, again, as to whether or not he adequately raised Q in his pro se filings.

[00:07:18] Speaker 04:
With respect to your first point, you argue that somehow there has been an adoption of this special rule that says that you could look to see actual notice even if there is concededly not notice.

[00:07:34] Speaker 04:
But try as I might, looking at the Veterans Court decision, I don't necessarily see that.

[00:07:42] Speaker 04:
Couldn't you also read the Veterans Court decision to simply address the dispute that the government claims is alive about whether there was notice?

[00:07:52] Speaker 04:
In other words, was it received by him in the mail?

[00:07:57] Speaker 02:
That is not the reading that I get to the Veterans Court decision, or that it's correct to the Veterans Court decision.

[00:08:02] Speaker 02:
The Veterans Court stated,

[00:08:04] Speaker 02:
that resolving whether Mr. Lawson in fact received notice of the denial of the 2002 claim requires the remand, not whether it was mailed to the correct address.

[00:08:13] Speaker 02:
And in fact, before the agency, before the Veterans Court, the government did not allege that the mailing was sent to the correct address.

[00:08:21] Speaker 02:
There's no dispute that the address listed on A682 of the record is not Mr. Lawson's address.

[00:08:27] Speaker 04:
Well, the government says that it didn't dispute that point, but it did dispute whether or not

[00:08:33] Speaker 04:
it was received at the correct address.

[00:08:37] Speaker 02:
I understand your question, Your Honor.

[00:08:40] Speaker 02:
That is, in fact, whether or not Mr. Lawson, in fact, received the notice.

[00:08:51] Speaker 02:
And that is not relevant under 38 USC Section 5104, because the statute requires that the notice be sent to the claimant's address of record

[00:09:01] Speaker 02:
If you look at section 38, or 38 USD, section 7104 and 7105, it states that the mailing date determines when the clock starts for the veteran to file his claim.

[00:09:13] Speaker 02:
So unless the notice is mailed to the correct address, the veteran is potentially shorted part of his time period to file a notice of disagreement to keep his claim alive.

[00:09:25] Speaker 02:
So that's one of the problems with the

[00:09:27] Speaker 02:
the agency's position is that somehow if he received actual notice, if somehow this got to him at a later date, that that cures the failure to provide notice.

[00:09:36] Speaker 02:
But it doesn't because he is entitled to notice on a timely basis under the statute.

[00:09:41] Speaker 02:
And unless the agency sends the claimant his notice to the correct address, the rest of the statute starting the clock on that mailing date really isn't fair to the veteran and doesn't make sense within the statutory scheme.

[00:09:55] Speaker 01:
So if the last digit of the zip code is a one instead of a four instead of a one, everything else is correct and he really gets it.

[00:10:04] Speaker 01:
You're saying that doesn't matter.

[00:10:06] Speaker 01:
It's not exactly perfect, therefore it wasn't adequately delivered under the statute.

[00:10:10] Speaker 01:
Is that your position?

[00:10:13] Speaker 02:
Your Honor, in this case, it wasn't adequately delivered because of the incorrect zip code.

[00:10:19] Speaker 02:
And when you look at his address, it's a PO box instead of a street address.

[00:10:24] Speaker 02:
This is not a case where

[00:10:25] Speaker 02:
potentially one digit off might have resulted in the mailman just delivering it to the correct address.

[00:10:31] Speaker 02:
It is an incorrect address.

[00:10:33] Speaker 02:
And the veteran, an assistant that's supposed to give the benefit of the doubt to the veteran, should be given the benefit of the doubt that he did not receive the notice.

[00:10:41] Speaker 02:
Normally what the agency relies on in showing that a veteran received notice is the presumption of regularity in mailing.

[00:10:47] Speaker 02:
And given the incorrect address here, that presumption is gone.

[00:10:50] Speaker 02:
And there's not really anything that the agency can do to rebut

[00:10:55] Speaker 02:
to restore that presumption given the fact that Mr. Lawson has stated that he didn't receive the notice.

[00:11:02] Speaker 02:
Does that answer your question?

[00:11:09] Speaker 02:
I'd like to turn to the jurisdictional issue on the notice question briefly.

[00:11:16] Speaker 02:
Here there is jurisdiction under William C. Principe over the remand order of the Veterans Court.

[00:11:21] Speaker 02:
The remand order here meets all three of the Williams criteria.

[00:11:24] Speaker 02:
First, that there is a clear and final decision on a legal issue.

[00:11:30] Speaker 02:
That if reversed by the court would render the remand proceedings unnecessary.

[00:11:34] Speaker 02:
So here, the question of whether or not section 5104A requires that the claimant be provided actual notice to his last address of record, if decided in Mr. Lawson's favor, would move the need for a remand.

[00:11:46] Speaker 02:
The second Williams criterion requires that

[00:11:48] Speaker 02:
The resolution of the legal issues must adversely affect the party seeking review.

[00:11:52] Speaker 02:
Here, the resolution of whether or not Mr. Lawson received a in-fact notice would adversely affect Mr. Lawson in at least two respects.

[00:12:03] Speaker 02:
The first is that if the board, if in-fact notice is found relevant under Section 5104 and the board

[00:12:10] Speaker 02:
determines that Mr. Lawson did in fact receive notice, it would result in him not receiving benefits for the time period from November 8, 2002 until June 21, 2004.

[00:12:20] Speaker 02:
And then in addition, being subjected to the unnecessary proceedings, additional proceedings on the notice issue and the delay incumbent in that is also an independent harm to Mr. Lawson that's caused by the error in the statutory interpretation.

[00:12:34] Speaker 02:
And then the third and final Williams criterion requires that there must be a substantial risk that the decision would not survive remand.

[00:12:41] Speaker 02:
And here that is the case because if the board does make a finding that Mr. Lawson in fact did not receive a notice, the legal issue becomes moot.

[00:12:50] Speaker 02:
But also because of the separate two claim errors, which encompass his claim for benefits for the greater time period, if the case goes back to the board

[00:13:00] Speaker 02:
and then back to the Veterans Court, and the Veterans Court ultimately finds for Mr. Lawson on the cue claim errors, it would render the notice issue moot.

[00:13:09] Speaker 04:
If we disagreed with you on the notice question, but agreed with you that the court should have it addressed, whether or not the cue claim needs to be remanded as well, what would our directive to the Veterans Court be?

[00:13:29] Speaker 02:
The court would vacate and remand to the Veterans Court with instructions to evaluate the merits of Mr. Lawson's claim that the board erred in finding that he had failed to sufficiently plead a cue error.

[00:14:04] Speaker 03:
Okay, that'll be good.

[00:14:06] Speaker 03:
Thank you.

[00:14:07] Speaker 03:
May I please the court, I'll address both of Mr. Lawson's arguments, but I'd like to start with the notice issue.

[00:14:14] Speaker 03:
On this issue, the court has recognized that it typically observe a strict rule of finality and will not review remand orders at the Veterans Court.

[00:14:24] Speaker 03:
Although the court has carved out a narrow exception in Williams, this notice issue does not meet that test.

[00:14:32] Speaker 04:
Well, if it's in fact true that

[00:14:35] Speaker 04:
that there can't be any resolution of the remand that's not, you know, that wouldn't have to later be set aside because it was legally an inappropriate conclusion, then of course we wouldn't just approve a remand, right?

[00:14:49] Speaker 03:
That is true.

[00:14:54] Speaker 03:
Again, here with the notice issue, I don't think that's the case because the Veterans Court did not reach a clear and final decision on a legal issue.

[00:15:05] Speaker 03:
Mr. Lawson has characterized the Veterans Court's decision as interpreting 38 USC 5104, but as the court has recognized, interpretation requires some elaboration on the meaning of a statute.

[00:15:18] Speaker 03:
At most, this was application of law to fact, which of course is not an interpretation.

[00:15:22] Speaker 00:
Your advantage here is that we, I think, properly interpret 7292 very strongly in your favor on questions of fact.

[00:15:34] Speaker 00:
What's your disadvantage is that I have no question that if a letter is mailed to a post office box and it's sent to the wrong zip code, that it goes to an entirely different post office.

[00:15:49] Speaker 00:
And the postal clerk then inserts that in the box, proper box number, and it's misdelivered.

[00:15:55] Speaker 00:
That's a matter of fact.

[00:15:57] Speaker 00:
And I think we can take judicial notice of that.

[00:15:59] Speaker 00:
How do you deal with that?

[00:16:00] Speaker 00:
And how do we deal with it when we know you're wrong and yet we have this

[00:16:05] Speaker 00:
standard of review?

[00:16:07] Speaker 03:
I think there are really two prompts to that.

[00:16:09] Speaker 03:
The first is that Mr. Lawson raised his notice issue for the first time before the Veterans Court, and the Veterans Court recognized that it is prohibited by a statute for making factual determinations in the first instance, and that the proper thing to do to resolve this issue was to remand it to the board, even if ultimately it is determined to be in Mr. Lawson's favor.

[00:16:37] Speaker 03:
I apologize.

[00:16:38] Speaker 03:
I thought I was going to make two points about that, but I think I've lost the thread of the second.

[00:16:41] Speaker 04:
I don't really understand what the government's position is on this factual thing.

[00:16:46] Speaker 04:
You said at one point, well, we disagree that he didn't get the mailing, and then you later admit that it was sent to the wrong zip code.

[00:16:57] Speaker 04:
So how can you disagree that he didn't get the mailing if you admit it was sent to the wrong zip code?

[00:17:02] Speaker 03:
Thank you, Your Honor.

[00:17:04] Speaker 03:
brings in the second point I was going to make in response to Judge Wallach.

[00:17:09] Speaker 03:
The presumption of irregularity can, of course, be rebutted.

[00:17:13] Speaker 03:
But that's just the first prong of the inquiry.

[00:17:16] Speaker 03:
Because although the Veterans Court decision does not get into the issue of actual notice, it is in fact right that actual notice can remedy a notice error problem.

[00:17:26] Speaker 03:
And Mr. Lawson has mischaracterized this as being that prejudices the veteran because then there

[00:17:34] Speaker 03:
time for filing a notice of appeal has been told, and they don't get the benefit of that time.

[00:17:38] Speaker 03:
But in fact, there's well-developed case law that states that if there is a cure of a notice issue, then the time for appeal is triggered by the date of actual receipt.

[00:17:50] Speaker 03:
Again, also, what's that?

[00:17:52] Speaker 03:
I don't know how you define cure.

[00:17:54] Speaker 04:
I mean, in other words, you concede, don't you, that if the notice goes to the VA representative, that that doesn't count, right?

[00:18:04] Speaker 03:
Yes, so there may be, this is a hypothetical, but perhaps there could be an issue where the veteran calls the VA and says, I didn't get the letter and then it's resent.

[00:18:17] Speaker 03:
Or here there could also be, the veterans court correctly noted that if it didn't take exercise of jurisdiction to hear the notice argument,

[00:18:26] Speaker 03:
that Mr. Lawson would not be able to bring that up again as a freestanding claim for an earlier effective date.

[00:18:32] Speaker 03:
And that's in line with this court's implicit denial rule.

[00:18:34] Speaker 03:
So although even if it's ultimately determined that Mr. Lawson did not receive notice of the denial of the 2002 claim, once he received denial of the exact same claim, or excuse me, once he was granted service connection and an effective date on his 2004 claim, that is noticed that his earlier claim was denied and to the extent that he has

[00:18:55] Speaker 03:
an issue with his effective date is the only possible way for him to challenge that and develop more evidence would be in the current claim stream.

[00:19:07] Speaker 01:
Let me ask you this, counsel.

[00:19:09] Speaker 01:
I spent a lot of time trying to understand this chart from the briefing.

[00:19:13] Speaker 01:
And how can anybody look at this and not conclude that this veteran has been bounced back and forth more times than the basketball between Wisconsin and Duke?

[00:19:25] Speaker 01:
And why is that fair in any sense of the word?

[00:19:29] Speaker 03:
Your Honor, I think that everyone recognizes that in a purpose world, there would be sufficient evidence to get every termination right the first time.

[00:19:40] Speaker 03:
Here, Mr. Lawson submitted multiple claims, but based on medical reviews, there was not a sufficient connection to grant service connection.

[00:19:51] Speaker 03:
And it's really in Mr. Lawson's favor that ultimately that was found.

[00:19:55] Speaker 03:
But he can challenge those earlier determinations on the basis of Q. So this is in his favor.

[00:20:04] Speaker 01:
This is what he would like to have happen to him, right?

[00:20:06] Speaker 03:
No, I don't think that's the case.

[00:20:09] Speaker 03:
However, it wouldn't be in Mr. Lawson's favor if after receiving a denial of his 1988 claim, he was not able to

[00:20:18] Speaker 03:
reopen a claim based on new immaterial evidence.

[00:20:22] Speaker 03:
That would be not to his benefit.

[00:20:25] Speaker 03:
He would have resolution earlier, which may be an advantage, but I think that everyone agrees that to the extent that someone can later meet the criteria for service connection, it's better to give them the opportunity to reopen their claim.

[00:20:39] Speaker 04:
Well, you have to concede that if, in fact, he was able to prevail on a Q claim, that this whole issue of

[00:20:46] Speaker 04:
notice or actual notice and the interpretation of the applicable statutes and regs becomes moot, right?

[00:20:53] Speaker 04:
Because he goes all the way back.

[00:20:56] Speaker 03:
It could be, however, Mr. Lawson would lose his ability to develop his notice argument without remand.

[00:21:05] Speaker 03:
So the most that the Veterans Court could have done on his Q claim errors was issue a remand to the board.

[00:21:11] Speaker 03:
And in fact, that's what Mr. Lawson asked for regarding both of his arguments before the veteran court was a remand.

[00:21:16] Speaker 03:
Right.

[00:21:17] Speaker 04:
But the point is, what he asked for is, even if you have to remand my notice claim, remand the Q claim with direction to consider it again under the appropriate standard of review.

[00:21:33] Speaker 03:
And as the court noted, the remand is broader than Mr. Lawson is contending.

[00:21:39] Speaker 03:
The veteran's court specifically cited K.V.

[00:21:42] Speaker 03:
Principe for the point that he would be free to submit additional arguments and evidence as to the remanded matter, and that would also include his cue claims.

[00:21:51] Speaker 03:
Here, the cue issue was that the board found that he had not yet raised a valid cue claim.

[00:21:56] Speaker 03:
He was able to better develop that when he returned to the board.

[00:22:01] Speaker 04:
government is going to concede before the board that the remand includes a full open reevaluation of whether he's properly raised a Q claim?

[00:22:11] Speaker 03:
Yes, however, if the Veterans Court were to have reached the merits on this, it would have been correct to affirm the board on this that he had not actually raised a Q claim.

[00:22:23] Speaker 03:
Mr. Lawson made a statement in his current claim stream after receiving the notice of his service connection that stated, I am challenging the effective date based on clear error.

[00:22:34] Speaker 03:
The merits of that is not for us.

[00:22:41] Speaker 04:
The question is whether the Veterans Court should have addressed it to avoid the kind of bouncing back and forth and unnecessary remands that Judge Gilstrap mentioned.

[00:22:50] Speaker 03:
The most that the Veterans Court could have done for him was to say that the board was correct in finding that he had not raised a valid cue claim.

[00:22:59] Speaker 03:
What would really be to Mr. Lawson's detriment was if here it was found that he had made a cue claim to a final board decision and not succeeded on that challenge, then he wouldn't be able to make additional arguments on that.

[00:23:16] Speaker 03:
Wait, that doesn't even make any sense.

[00:23:19] Speaker 04:
Well, the only question before the Veterans Court was whether he had ever raised it.

[00:23:24] Speaker 04:
And the Veterans Court found that he did.

[00:23:26] Speaker 04:
The Veterans Court couldn't then go to the mayor.

[00:23:29] Speaker 04:
No, of course not.

[00:23:30] Speaker 03:
No, of course not.

[00:23:31] Speaker 03:
However, the board's finding that he hadn't raised a valid Q claim allows him to perfect his Q claim and describe he hadn't even identified a final RO or board decision that he thought that there was Q in.

[00:23:46] Speaker 03:
This gives him an opportunity to do that.

[00:23:48] Speaker 03:
rather than simply denying a Q claim, which wouldn't have been appropriate for the board to do because it's not even clear what decision he's alleging Q to be in.

[00:23:57] Speaker 04:
So the government wouldn't even say on remand that he would have to file a new Q claim?

[00:24:02] Speaker 04:
They'd say that he could proceed on this claim and develop it better?

[00:24:06] Speaker 03:
Yes, he's entitled to review before the RO, but if he wanted to waive that and develop his Q claim for the board, he would be entitled to do that.

[00:24:16] Speaker 03:
And the government would dispute that entitlement?

[00:24:18] Speaker 04:
No.

[00:24:22] Speaker 04:
Okay, go ahead.

[00:24:27] Speaker 03:
I will just briefly state that to the extent that the court agrees that there is jurisdiction over the second argument on the Q claim, the court should affirm the Veterans Court's principle that once it determines that a remand is the proper remedy, it need not analyze and assess all of the other claimed errors that would result

[00:24:48] Speaker 03:
in a remedy no broader than a remand.

[00:24:50] Speaker 03:
This is a principle of judicial efficiency and given the broad nature of remands in the Veterans Court that applies to this case, but also to cases generally that enable a veteran to supply additional evidence to the board and refine their arguments, the mall principle should be affirmed.

[00:25:08] Speaker 03:
If the court has no further questions, we ask that

[00:25:10] Speaker 03:
the court dismiss for lack of jurisdiction the notice issue and affirm on the Q plane and as argued today and in our brief.

[00:25:20] Speaker 03:
Thank you.

[00:25:20] Speaker 03:
Thank you.

[00:25:28] Speaker 02:
The government referenced the MAHL principle which comes from the case of MAHLB Principe before the Veterans Court.

[00:25:36] Speaker 02:
That case is not only not binding on this court, but it is inapplicable because in Mall, there was no dispute that the veteran in that case, the second error that he alleged, would not have entitled him to a remedy greater than the error on which there was a remand.

[00:25:50] Speaker 02:
Here, Mr. Lawson's Q claim errors entitle him, if adjudicated in his favor, to benefits that date back to 1998 and includes the same period as the notice error.

[00:26:01] Speaker 02:
Therefore, the principle of Mall

[00:26:04] Speaker 02:
even if it is valid, it does not apply in this case.

[00:26:07] Speaker 04:
Well, even if we agree with that, what if we hold the government to their concession and say that the remand is broad enough to include full development of the Q claim in this matter and that to the extent that there's any question about whether it was properly raised, any arguments that need to be made can be made right now before the board.

[00:26:28] Speaker 04:
Doesn't that give him what he wants?

[00:26:29] Speaker 02:
Mr. Lawson certainly would make every attempt if there was a remand that would allow him to

[00:26:34] Speaker 02:
reopen and further develop his Q claim errors to do so.

[00:26:38] Speaker 02:
However, given the fact that the issue that was currently before the board is whether or not he sufficiently fled Q, there's not really much that can be added to the record here.

[00:26:47] Speaker 02:
The RO decisions, the board decisions, they're all in the record.

[00:26:51] Speaker 02:
So there won't be any new evidence and likely not new arguments.

[00:26:55] Speaker 02:
So although in theory there may be some ability to develop the claim, the reality is that given the nature of the Q

[00:27:02] Speaker 02:
Where the cue claim errors stand in this case, there is not.

[00:27:06] Speaker 01:
In other words, you told us to begin with that we shouldn't send this back because the record would be closed.

[00:27:11] Speaker 01:
It couldn't be reopened.

[00:27:12] Speaker 01:
You wouldn't have a fair chance to have another bite at the apple, if you will.

[00:27:16] Speaker 02:
Yes.

[00:27:16] Speaker 01:
The government comes up here and says, no, the record will be open.

[00:27:18] Speaker 01:
It will be brought enough.

[00:27:20] Speaker 01:
And then you come back and say, that's still not good enough.

[00:27:22] Speaker 02:
Right.

[00:27:23] Speaker 02:
Because of the nature of why the cue claim errors were denied in this case,

[00:27:28] Speaker 02:
there's not anything that can be added to the record that would help Mr. Lawson further develop those claims on a remand.

[00:27:33] Speaker 01:
Why didn't you tell us that first time?

[00:27:35] Speaker 02:
Sorry, Your Honor.

[00:27:38] Speaker 02:
May I briefly conclude?

[00:27:39] Speaker 02:
Yes.

[00:27:40] Speaker 02:
For the foregoing reasons, Mr. Lawson respectfully requests that the Court direct the Veterans Court to vacate the remand order and direct them to enter judgment in Mr. Lawson's favor as to the notice error and to

[00:27:54] Speaker 02:
to instruct them to resolve the merits of the two claim errors as they were presented before the veteran court.

[00:28:06] Speaker 02:
Thank you.