[00:00:03] Speaker 03:
In that case, I invite a motion from the Chief Judge.

[00:00:06] Speaker 01:
Thank you.

[00:00:07] Speaker 01:
Thank you.

[00:00:11] Speaker 01:
I move the admission of Nelson Kwan, who is a member of the Bar and is in good standing with the Highest Court of Virginia.

[00:00:20] Speaker 01:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:00:25] Speaker 01:
And as all my clerks know, this is a very bittersweet time of the year for me, because we sort of lose a clerk, but hopefully not really, because they mean part of our family and the court's family.

[00:00:37] Speaker 01:
It's just been a pleasure and honor to have Nelson in our chambers for a year.

[00:00:42] Speaker 01:
He's made a major contribution.

[00:00:43] Speaker 01:
And we have enormous admiration and affection for him personally as well as professionally.

[00:00:52] Speaker 01:
So we welcome you to the bar.

[00:00:54] Speaker 01:
You may take the oath.

[00:00:56] Speaker 03:
Do I hear any opposition to the motion from the panel or otherwise?

[00:01:07] Speaker 03:
If not, I shall take a vote on my note.

[00:01:12] Speaker 03:
I concur.

[00:01:13] Speaker 03:
And of course, I agree that the motion is granted.

[00:01:20] Speaker 01:
Now you may take the oath.

[00:01:22] Speaker 03:
Indeed.

[00:01:22] Speaker 03:
Welcome to the bar.

[00:01:23] Speaker 03:
Please proceed.

[00:01:26] Speaker 02:
Again, welcome to goodbye.

[00:01:42] Speaker 01:
The first case this morning is 147097 Palmateer versus McDonald's, Mr. Carpenter.

[00:01:58] Speaker 04:
Thank you very much, Your Honor.

[00:01:59] Speaker 04:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Lawrence Palmatier.

[00:02:04] Speaker 04:
In this case, Mr. Palmatier appealed the initial rating of a sign to his service-connected back disability.

[00:02:11] Speaker 04:
During the pendency of that appeal, he raised explicitly the issue of his entitlement to an extra schedule or total rating.

[00:02:19] Speaker 04:
The VA mistakenly adjudicated that as a separate claim.

[00:02:24] Speaker 04:
and adjudicated it in part, but prospectively only.

[00:02:28] Speaker 01:
Wait, are you talking about the December 2009 claim for TDIU?

[00:02:32] Speaker 04:
That's correct.

[00:02:34] Speaker 04:
And by treating it as a separate claim, they dismembered it, to use a term that the lower court has used, from the original

[00:02:46] Speaker 01:
Can I ask you, and this is just a technical question, Jim, it seemed to me that he prevailed on the December 2009 claim.

[00:02:55] Speaker 01:
He did.

[00:02:56] Speaker 01:
But the problem for you all is that he couldn't get any fact-dated benefits.

[00:03:01] Speaker 04:
That's correct, from 2002 to 2009.

[00:03:03] Speaker 01:
But if this were part of the case that's before us today, then what he's seeking is the back, he's currently getting TDIU, so he's just seeking the back part of it.

[00:03:14] Speaker 04:
Well, not exactly.

[00:03:15] Speaker 04:
He's seeking the front part of it.

[00:03:19] Speaker 04:
Well, because this is part of his original claim.

[00:03:22] Speaker 04:
And what the Veterans Court did, and the mistake that they made, was to consider this as a separate consideration.

[00:03:29] Speaker 06:
But just for our purposes, to chop up this case, your client already has the TDIU from December 2009 till the present, and going forward.

[00:03:41] Speaker 06:
That's right.

[00:03:42] Speaker 06:
What you are specifically seeking for your client is TDIU from 2002 to 2009.

[00:03:47] Speaker 06:
Is that correct?

[00:03:49] Speaker 04:
That is correct.

[00:03:51] Speaker 04:
Anything else?

[00:03:52] Speaker 04:
No, but in the context of the error made below where the court below said that he had to file a notice of disagreement in order to get that entitlement.

[00:04:06] Speaker 04:
He did not have to file a notice of disagreement because in 2008 he had filed a notice of disagreement with the initial rating aside.

[00:04:16] Speaker 01:
So what are you saying that

[00:04:17] Speaker 01:
Their mess up here was because they should have combined his filing in 2009 with 2008, because I thought it was a little different.

[00:04:25] Speaker 01:
I thought you were saying that, forget about that 2009 claim, if you look at the 2008 claim and that Form 9 or whatever it is we're talking about, it was part and parcel of that.

[00:04:37] Speaker 04:
The claim originated in 2002.

[00:04:40] Speaker 04:
Unfortunately in this area we tend to imprecisely use terms like claim.

[00:04:47] Speaker 04:
This matter began with the filing of a claim in 2002 seeking service-connected compensation for his back.

[00:04:56] Speaker 04:
It was originally denied, he succeeded in that appeal, and then in 2008 he was granted.

[00:05:02] Speaker 04:
That was the first time he was granted service-connected compensation.

[00:05:06] Speaker 04:
He filed a notice of disagreement with the initial rating assigned

[00:05:09] Speaker 04:
for the scheduler rating for his back.

[00:05:12] Speaker 04:
Then during the pendency of that appeal, he initiated a claim or raised the issue of his entitlement to an extra scheduler rating.

[00:05:22] Speaker 01:
Under this court's case law... And when you say that, are you staying in connection with that claim in the form, or are you talking about the 2009... No, we're talking about the 2002 claim that began when he asked for it in the first place, and that has been...

[00:05:39] Speaker 01:
Is the 2009 filing for increase for TDIU, is that separate and distinct then from what you've been telling us about?

[00:05:48] Speaker 04:
No.

[00:05:50] Speaker 04:
It is the expression of his desire to raise that issue.

[00:05:55] Speaker 04:
Now he had in fact raised it earlier when he wasn't even service connected and filed the same form.

[00:06:02] Speaker 04:
But the fact is that at that point,

[00:06:05] Speaker 04:
Under the case law, he raised the issue.

[00:06:08] Speaker 04:
He presented to the VA his intent to seek an extra scheduler rating in addition to his scheduler rating.

[00:06:16] Speaker 01:
Can I just ask you a technical question about how this works?

[00:06:20] Speaker 01:
What is the threshold that there is a clear threshold for eligibility on TDIU?

[00:06:25] Speaker 01:
It's not 100%.

[00:06:27] Speaker 01:
Is it 70%?

[00:06:29] Speaker 04:
No, actually there is no threshold.

[00:06:31] Speaker 04:
Under VA regulations 4.16, there are

[00:06:35] Speaker 04:
scheduler requirements that you can meet that will trigger it, but then they have a separate regulation of 416B that says whether you have a scheduler threshold or not, if you're unable to work due to your service-connected disability, then you're entitled to that extra scheduler total rating.

[00:06:53] Speaker 01:
So if you were to prevail here, what is it you're seeking?

[00:06:58] Speaker 01:
That we send this back and we say to the CAVC, you have to consider his

[00:07:05] Speaker 01:
his eligibility for TDIU from 2002 to 2009?

[00:07:11] Speaker 04:
Actually, because the board didn't consider it, we believe that the correct remedy is for you to direct the Veterans Court to direct the board.

[00:07:23] Speaker 04:
That was the issue that was raised.

[00:07:25] Speaker 04:
To consider that issue of extra schedule or rating from 2002 to 2009.

[00:07:31] Speaker 04:
There's no question in this record that they considered it going forward from 2009.

[00:07:35] Speaker 01:
And what is the inquiry?

[00:07:36] Speaker 01:
I mean, this isn't a gotcha question.

[00:07:37] Speaker 01:
I just want to know.

[00:07:39] Speaker 01:
Is the inquiry whether or not his lower back disability for that period precluded him from gainful employment?

[00:07:46] Speaker 04:
Absolutely.

[00:07:47] Speaker 04:
And that's the only issue.

[00:07:49] Speaker 04:
And that was the issue that was never adjudicated because they treated it as a separate claim when it came in in 2009 rather than recognizing it as an issue in the appeal that was already pending.

[00:08:00] Speaker 06:
I guess that's the question.

[00:08:02] Speaker 06:
Was that really an issue raised in the appeal when the appeal specifically calls for a review on the effective date?

[00:08:11] Speaker 06:
of the 40% rating for the back.

[00:08:14] Speaker 04:
No, Your Honor.

[00:08:15] Speaker 06:
Well, it says that, doesn't it, in the appeal to the BVA?

[00:08:19] Speaker 04:
There is a VA-9 form that is, quite frankly, extraneous, but was, I believe, filed by counsel as a protective move to ensure that the effective date portion might be protected.

[00:08:31] Speaker 04:
But that, frankly, is a distraction in this case.

[00:08:35] Speaker 04:
The initiation of the appeal in 2008

[00:08:39] Speaker 04:
is what put this case in appeal status when they granted service connection for the back at the board and then they implemented it and assigned a rating that the veteran was dissatisfied with.

[00:08:51] Speaker 04:
The veteran had the opportunity to disagree with that and he did so.

[00:08:55] Speaker 04:
Once he did so, that claim continued and it continued all the way up to the board decision that was the subject matter in this case.

[00:09:04] Speaker 04:
And the complaint of Mr. Palmatier was, you only looked at the scheduler side, you did not look at the extra scheduler side.

[00:09:10] Speaker 06:
And what's the signal for the board that it knows that somehow inherently, innately, it has to look at something that's actually not being raised by the veteran expressly?

[00:09:21] Speaker 04:
Under this court's decision in Comer, any time the veteran raises the issue,

[00:09:26] Speaker 04:
of an inability to work related to his service-connected disability.

[00:09:31] Speaker 01:
Well, where did he raise that?

[00:09:33] Speaker 01:
He raised that in the 2008 case in the Form 9.

[00:09:36] Speaker 01:
Are you talking about the Form 9?

[00:09:38] Speaker 04:
No, no.

[00:09:38] Speaker 04:
He did it in the 2009 2189-40 when he filed for that increase for extra scheduler.

[00:09:46] Speaker 01:
But that was a separate case.

[00:09:47] Speaker 01:
And so why was there a incumbent upon him to pursue it?

[00:09:51] Speaker 04:
Oh, no.

[00:09:51] Speaker 04:
It was not a separate case.

[00:09:52] Speaker 04:
Under this court's case law and under the case law below,

[00:09:56] Speaker 04:
It is part and parcel of the original claim.

[00:09:59] Speaker 04:
In the Rice decision below, the Veterans Court dealt with this issue specifically, that TDIU is not a separate claim.

[00:10:09] Speaker 04:
TDIU is part and parcel of either an initial determination of rating or part of a claim for increase if raised.

[00:10:19] Speaker 06:
Did Mr. Palmatier file some kind of brief to the BVA, to the board?

[00:10:27] Speaker 04:
I don't recall, Your Honor.

[00:10:29] Speaker 04:
I'm sorry, I do not recall.

[00:10:31] Speaker 06:
I guess I'm trying to figure out what is the board's responsibility.

[00:10:35] Speaker 06:
If the veteran says, in a board brief, I want you to increase the rating from 40%

[00:10:43] Speaker 06:
to something higher than 40% for my service-connected back injury.

[00:10:48] Speaker 06:
Okay, now the board knows what it needs to do.

[00:10:51] Speaker 06:
But are you saying that no, the board needs to do more than that?

[00:10:54] Speaker 06:
The board needs to look through the entire file, the entire record, and search for

[00:11:00] Speaker 06:
Any place in that file where the veteran may have suggested that if it is unable, he is or she is unable to work due to some kind of service related injury, then the board is obligated after that complete review of the entire file to consider TDIU?

[00:11:23] Speaker 04:
I believe that that is this court's case law in Comer.

[00:11:26] Speaker 06:
but that is precisely the burden that is imposed on the day but congress also you know i think there's something that uh... veteran signal the board no yeah i i i i mean very good one form in July twenty ten it said i want to appeal the fact that the

[00:11:46] Speaker 06:
of my 40% rating for my back, right?

[00:11:50] Speaker 06:
Correct.

[00:11:50] Speaker 06:
And then he goes on and says, I retired from my job due to back problems in February 1992.

[00:11:57] Speaker 06:
Now at the very least here, we have a signal from the veteran to the board that he had to retire due to back problems which are service related.

[00:12:08] Speaker 06:
Okay, that sounds like the board now

[00:12:11] Speaker 06:
arguably has an obligation then to now consider TDIU because the board understands that there is some kind of, there's a serious complete inability to work due to the service related injury.

[00:12:27] Speaker 06:
But what you're proposing sounds much more dramatic than that.

[00:12:31] Speaker 06:
That there's no actual signal that the veteran needs to submit to the board.

[00:12:36] Speaker 06:
That the board has to scour the entire file.

[00:12:39] Speaker 04:
With all due respect, Your Honor, it's not about scouring the file.

[00:12:43] Speaker 04:
It's about recognition that when you get a VA form 8940, which is curiously framed... Please don't say VA form XYZ123.

[00:12:55] Speaker 04:
The TDIU application, Your Honor.

[00:12:57] Speaker 04:
I'm sorry.

[00:12:58] Speaker 04:
When you get that TDIU application, when the VA gets it, that puts them on notice that the issue has been raised.

[00:13:07] Speaker 04:
And then they have to simply look at

[00:13:09] Speaker 04:
Is there a pending claim for rating?

[00:13:13] Speaker 04:
Either increased rating or, in this case, initial rating.

[00:13:17] Speaker 01:
And there was.

[00:13:18] Speaker 01:
But that was taken care of.

[00:13:19] Speaker 01:
I mean, that's what the government is saying.

[00:13:21] Speaker 01:
Because he filed that separate filing in 2009, is that the form you're talking about?

[00:13:29] Speaker 01:
Yes.

[00:13:30] Speaker ?:
OK.

[00:13:30] Speaker 01:
Okay, everybody knows he's seeking TDIU, and he got TDIU.

[00:13:35] Speaker 01:
He got a claim, and what happened in the normal course, he would say, wait a minute, thanks for giving me the prospective claim, but I want it retroactive to 2002.

[00:13:44] Speaker 01:
And I think the government's position is he had a claim, he knew he had this claim for TDIU, and it was incumbent upon him to pursue it.

[00:13:54] Speaker 01:
And in the absence of pursuing it,

[00:13:55] Speaker 01:
We thought he dropped it.

[00:13:57] Speaker 04:
But that analysis is flawed because when you ask for an earlier effective date, you are capitated by the date of the application.

[00:14:07] Speaker 04:
and can only by statute go back one year.

[00:14:10] Speaker 04:
So he couldn't go all the way back to 2002.

[00:14:12] Speaker 01:
Right.

[00:14:13] Speaker 01:
So that's why he had to bring it up to the 2008 filing so that he could get the... Yes.

[00:14:17] Speaker 04:
And what must be understood here is that this is part of an ongoing claim.

[00:14:22] Speaker 04:
If there was no ongoing claim here, then Judge Chin's concern is correct.

[00:14:29] Speaker 04:
The VA is not on notice, but the VA was on notice.

[00:14:33] Speaker 04:
The VA had gotten a 2008 notice of disagreement with the initial rating assigned.

[00:14:39] Speaker 04:
And under the Veterans Courts Analysis in Rice,

[00:14:42] Speaker 04:
That required the VA to consider the raised issue of extra schedule or rating as part and parcel of that original 2002 claim.

[00:14:52] Speaker 01:
So what rule would you have us construct in this case?

[00:14:57] Speaker 01:
Would it be any time that the veteran in a different proceeding or under a different rubric raises something

[00:15:06] Speaker 01:
even if he feels to pursue it and feels to request retroactive payment in that case, they should still consider it in any other proceeding he's got.

[00:15:16] Speaker 01:
I'm worried about what the rule is coming out of this case if you prevail.

[00:15:21] Speaker 04:
Well, Your Honor, the rule already exists in Comer.

[00:15:24] Speaker 04:
This court said in Comer when the issue of extra scheduler is raised,

[00:15:31] Speaker 04:
then that issue has to be considered with what's going on at the time in which it was raised.

[00:15:37] Speaker 01:
If your client had not filed for increased TDIU in December 2009, would you still be here contending that they should have considered it as part of the 2008 case?

[00:15:49] Speaker 04:
I would because he filed the same VA form prior to the time that he had been granted service connection.

[00:15:58] Speaker 04:
which put them on the same notice that they got in 2009 that he was unable to work.

[00:16:04] Speaker 01:
What form are we talking about here?

[00:16:05] Speaker 04:
The VA form 8940.

[00:16:06] Speaker 01:
And when was that filed?

[00:16:09] Speaker 01:
2002, I believe.

[00:16:11] Speaker 01:
And he filed March 2003.

[00:16:13] Speaker 04:
March 2003, that's correct, Your Honor.

[00:16:15] Speaker 04:
and at that time he was not service-connected.

[00:16:18] Speaker 04:
So technically it was a premature filing, but it was nonetheless noticed to the VA of an inability to work due to what will in the future become a service-connected disability.

[00:16:30] Speaker 06:
And what if there were no TDIU filings in this particular file, in this particular matter, but nevertheless

[00:16:38] Speaker 06:
here in his appeal to the BBA, he said that he had to retire from his job in 92 due to back problems.

[00:16:48] Speaker 04:
Is that enough?

[00:16:48] Speaker 04:
I believe that reasonably raises the issue and I believe that that's precisely what this court held in Comer.

[00:16:54] Speaker 06:
Why couldn't we just decide the case on this?

[00:16:57] Speaker 06:
That this was, put the BBA on notice, that it also had to consider TDIU.

[00:17:05] Speaker 04:
We certainly could, Your Honor.

[00:17:07] Speaker 04:
But I believe that the way in which the decision was made below, what Judge Hagel did below was to say that a new appeal was required.

[00:17:17] Speaker 06:
Well, I think he or the Justice Department are pointing out that when Mr. Palmatier did receive TDIU benefits,

[00:17:27] Speaker 06:
in April 2011, dating back to December 2009, that would have been the time and place for Mr. Palmatier to say, wait a second, I want my GDIU to go all the way back to 2002 when I made my original filing, and don't cut me off just to December 2009.

[00:17:47] Speaker 04:
Well, that might have been the time to alert the VA to that, but technically speaking,

[00:17:53] Speaker 04:
The only option that was available under 5110, 38 USC 5110, was the one-year look-back window from 2009.

[00:18:01] Speaker 01:
So you're saying the TDIU claim filed in December 2009 adjudicated in April 2011 could not have been the vehicle for him to get the relief you're seeking here.

[00:18:15] Speaker 04:
That's correct.

[00:18:16] Speaker 04:
And if the court please, I believe we have to try to get away from referring to it as a claim.

[00:18:23] Speaker 04:
It is not a claim.

[00:18:24] Speaker 04:
It's an issue within the issue of the original claim for service-connected compensation, which has been pending since 2002.

[00:18:33] Speaker 01:
Is this all in one place?

[00:18:35] Speaker 01:
I mean, you know, we've got a little chart here, and it's got so many boxes of the different filings.

[00:18:40] Speaker 01:
Are you satisfied that the VA, the administration of these claims is sufficient?

[00:18:46] Speaker 01:
so that looking at another separate, I know you don't want to call it a claim, but he's got these TDIU things going on there.

[00:18:53] Speaker 01:
Is that part and parcel of what's before any adjudicator or any claim dealing with Mr. Palmintero?

[00:19:02] Speaker 04:
Yes it is, and it is with every other veteran once the issue is raised.

[00:19:07] Speaker 04:
Once it is put out there that there is an inability to work related to the service-connected disability or disabilities.

[00:19:14] Speaker 01:
Why don't we, we'll be on your time when we store two minutes of rebuttal and let's hear from the government.

[00:19:31] Speaker 00:
Your Honor, may it please the court?

[00:19:33] Speaker 00:
The court should dismiss Mr. Palmatier's appeal because the board's conclusion that his appeal concerned only the effective date for the 40% rating for his back is a finding of fact.

[00:19:44] Speaker 00:
And that cannot be adjudicated by this court.

[00:19:49] Speaker 00:
Mr. Palmatier's brief appears to contend that this case turns on a legal standard that lets the board bifurcate issues.

[00:19:59] Speaker 00:
But that's not what happened here.

[00:20:00] Speaker 00:
Mr. Palmatier presented the claims separately to the board.

[00:20:06] Speaker 00:
Specifically, he filed the initial back claim in 2002.

[00:20:09] Speaker 00:
Then he filed a TDIU claim in 2003.

[00:20:13] Speaker 00:
Then in October of 2008 when he received a 0% rating for his lower back disability and he subsequently filed a notice of disagreement in December of 2008.

[00:20:22] Speaker 06:
Are you saying in his appeal to the board in 2010 he was essentially barred from being able to raise a TDIU claim?

[00:20:31] Speaker 00:
We're not saying he was barred from being able to raise a TDIU claim.

[00:20:34] Speaker 00:
We're saying that he took it out of the claims stream.

[00:20:37] Speaker 00:
by filing a separate claim for TDIU in 2009 and by not raising it.

[00:20:42] Speaker 06:
But he could have, theoretically, and that's what the debate is, did he really do it in the appeal.

[00:20:48] Speaker 06:
But theoretically, he could have said, I want to appeal the effective date of my 40% rating.

[00:20:55] Speaker 06:
And I also want a TDIU.

[00:20:59] Speaker 06:
He could have said both things in his appeal to the board.

[00:21:02] Speaker 00:
Yes, Your Honor.

[00:21:03] Speaker 06:
And then the board would have had to consider it.

[00:21:05] Speaker 00:
Yes, Your Honor.

[00:21:06] Speaker 06:
And then the next question is, okay, did he actually do that here?

[00:21:09] Speaker 00:
No, Your Honor.

[00:21:10] Speaker 00:
Instead, he brought this

[00:21:12] Speaker 00:
He brought, this is not a case about what the board bifurcated.

[00:21:16] Speaker 00:
This is the fact that Mr. Palmatier presented a separate, instead of in his 2008 notice of disagreement, he doesn't mention TDIU at all.

[00:21:26] Speaker 01:
Yeah, but the problem is, I mean, even for sophisticated lawyers, the system is kind of daunting.

[00:21:33] Speaker 01:
And here, he brought to the board's attention.

[00:21:37] Speaker 01:
I mean, he filed this 2009 thing, and what if he discovers after the fact, whoops, this isn't going to get me what I need, because this only gives me TBIU prospectively, and I want to get it retroactively.

[00:21:49] Speaker 01:
And the only way I can do that is have the board consider it as part of the other claim, right?

[00:21:55] Speaker 00:
Well, Your Honor, we would disagree with that statement.

[00:21:57] Speaker 00:
Mr. Palmatier actually had a number of options available to him.

[00:22:01] Speaker 00:
At the point of at least 2010,

[00:22:03] Speaker 00:
He had an attorney advising him, and it was the attorney that filled out the substantive appeal from the supplemental statement of the case.

[00:22:14] Speaker 00:
At that point, he could have at any point asked for the two claims to be joined.

[00:22:18] Speaker 00:
He could have appealed to 2009.

[00:22:20] Speaker 01:
Could he have just added one sentence and said, I want TDIU 2?

[00:22:24] Speaker 00:
Yes, Your Honor.

[00:22:26] Speaker 00:
But he didn't do that and here he was not seeking a higher rating.

[00:22:29] Speaker 01:
Don't we have cases, Mr. Carpenter mentioned Comer and I think Roberson is also, Roberson, the Roberson case is another one that really I think state clearly that it's

[00:22:41] Speaker 01:
not incumbent on the veteran to use magic words or to make such a claim.

[00:22:47] Speaker 01:
If he puts the VA on notice, so tell me if I'm misreading these cases, if the VA is on notice that the service connection thing, which is adjudicating and giving him compensation for, has resulted in him inability to engage in substantial gainful employment,

[00:23:05] Speaker 01:
The VA has got to look at that.

[00:23:06] Speaker 01:
Even if he doesn't have to use the words TDIU, he doesn't say, I have a TDIU claim.

[00:23:11] Speaker 01:
Don't our cases say that?

[00:23:12] Speaker 00:
Well, Your Honor, those cases are presented in the context of seeking a higher rating, which at this point in the adjudication of his claim, his attorney specifically stated that he was only seeking the effective date for the 40% rating for his back.

[00:23:26] Speaker 00:
And here, Mr. Palmatier had his claim was developed that those cases

[00:23:31] Speaker 01:
robertson uh... become i i i i do you disagree with the answer that mister carpenter gave me to my question that there's no magic number that he could i mean the t d i u is it predicated necessarily a hundred percent disability rating yet that that forty percent lower back and i don't know if it's in combination with the athma disability or just separately could have qualified him for t d i u

[00:23:55] Speaker 00:
I believe so.

[00:23:55] Speaker 00:
There's no precise formula as Mr. Palmatier was saying.

[00:23:58] Speaker 01:
So he was seeking a higher rating.

[00:23:59] Speaker 01:
He got a higher rating.

[00:24:00] Speaker 01:
He went from 10% to 40%.

[00:24:02] Speaker 01:
And he says in his Form 9, he puts the VA on notice that I haven't been able to work because of my back problems since 1992.

[00:24:11] Speaker 01:
What more under our caseload does he have to do in order to tell the board, you should look at this?

[00:24:18] Speaker 00:
Well, Your Honor, he had a separate adjudicated claim.

[00:24:20] Speaker 00:
He elected, rather than in 2008 to say that he was seeking TDIU, he took it out of the claim stream and filed the 2009 claim.

[00:24:28] Speaker 01:
So I don't understand your answer to that question.

[00:24:30] Speaker 01:
I'm sorry.

[00:24:30] Speaker 01:
Because if your answer is otherwise they would have considered that.

[00:24:35] Speaker 01:
enough to bring this to their attention, but because he had a separate claim, it wasn't enough.

[00:24:41] Speaker 01:
It doesn't feel right to me.

[00:24:45] Speaker 01:
So the VA goes through the thought process of saying, well, we would have considered this, but obviously he must know what a TDIU means because he's filed his other claim.

[00:24:54] Speaker 01:
So we're not going to give him the benefit of the doubt here in this context because he already had the other claim.

[00:24:59] Speaker 01:
What's going on here?

[00:25:00] Speaker 00:
No, Your Honor.

[00:25:00] Speaker 00:
The fact is that under Tyreuse, the board can actually bifurcate claims.

[00:25:05] Speaker 00:
Here, Mr. Palmatier bifurcated his own claim.

[00:25:09] Speaker 00:
He filed a separate claim.

[00:25:11] Speaker 00:
Instead of keeping them together, he removed it from the claim stream.

[00:25:14] Speaker 01:
But the separate claim is, I think, undisputed.

[00:25:17] Speaker 01:
The separate claim does not get him what he's seeking.

[00:25:20] Speaker 01:
He prevailed on the second claim, but he only got prospective relief.

[00:25:25] Speaker 01:
It did not cover the period between 2002 and 2009 that wasn't part and parcel, and it could not have been of the second claim.

[00:25:32] Speaker 00:
We don't know that, Your Honor.

[00:25:33] Speaker 00:
He didn't file an appeal.

[00:25:35] Speaker 00:
There are many things Mr. Palmatier simply didn't do.

[00:25:39] Speaker 00:
He could have filed an appeal of the 2009 claim and said, I want to stay pending the resolution of my 2008 back claim.

[00:25:47] Speaker 00:
that he would be making the same type of argument had he been basically saying I've had this informal claim to TDIU since 2002.

[00:25:56] Speaker 00:
I can't say with certainty he would have been successful, but I think Tyreuse says that he still needs to do something.

[00:26:02] Speaker 00:
Here there was no error on the board's part by taking Mr. Palmatier took TDIU out of the claim stream when he requested a separate adjudication.

[00:26:11] Speaker 00:
He was under counsel of an attorney.

[00:26:13] Speaker 00:
He never sought to rejoin them.

[00:26:15] Speaker 00:
He never filed an appeal of the 2009 TDIU adjudication and he didn't explicitly raise it here.

[00:26:22] Speaker 01:
I was saying that under the 2009 case he could have

[00:26:25] Speaker 01:
gotten retroactive, retrospective relief after 2002?

[00:26:29] Speaker 00:
Well, Your Honor, it seems as if, I don't know for certain what would have happened, but it seems like the same types of arguments he's raising under Roberson and Comer, he's basically claiming that he had an informal claim.

[00:26:40] Speaker 00:
Put it differently, if he had in his 2008 notice of disagreement said, I'm entitled to TDIU,

[00:26:48] Speaker 00:
the board had ultimately given him TDIU effective 2008.

[00:26:52] Speaker 00:
If we were dealing with that kind of appeal, he would still be arguing that I've had an informal claim pending back to 2002.

[00:27:01] Speaker 00:
So I think the arguments are exactly the same.

[00:27:04] Speaker 00:
The difference is here he took TDIU out of the claim stream, had an opportunity to have it adjudicated or join it back or do something to preserve these issues.

[00:27:15] Speaker 00:
and he didn't and you know in this court when people file appeals and they don't identify obviously a different system than the VA system you are limited to the issues that you request that you seek appeal on.

[00:27:27] Speaker 01:
But don't our cases say that you don't have to explicitly raise a claim for TDIU?

[00:27:33] Speaker 00:
but here mr palmitier affirmatively did that this isn't a case where we have that he never did that.

[00:27:38] Speaker 00:
Here he sought TDIU removed it from the claim stream and never sought appeal and then under the counsel of the attorney who filled out his form in 2010 never sought to rejoin these claims or to make it clear.

[00:27:52] Speaker 05:
Hypothetically we looked at his board appeal form in 2010 that we see a statement that's equivalent to

[00:28:02] Speaker 06:
I want you, the board, to consider TDIU.

[00:28:07] Speaker 06:
In addition to, I want you to consider the effective date of the 40% grant.

[00:28:12] Speaker 06:
If we read the appeal form that way, then would you agree that the board was obligated to consider TDIU?

[00:28:20] Speaker 00:
I don't think the board was explicit, and I think the board would have to take into account the fact that he submitted the separate claim in December of 2009.

[00:28:27] Speaker 01:
So it seems like you're combining the two.

[00:28:29] Speaker 01:
I mean, you're suggesting if he hadn't filed the separate claim, he'd be in a better state than he is now.

[00:28:35] Speaker 00:
Yes, Your Honor, but he affirmatively filed that claim and affirmatively took it out of... I mean, there's nothing in this file that... Well, they didn't take it out of it because then you're criticizing him.

[00:28:45] Speaker 01:
You're saying he took it out of the appeal stream, but then he never pursued it.

[00:28:49] Speaker 01:
Well, maybe he didn't pursue it because he wanted to put it back in the other box.

[00:28:53] Speaker 00:
But he never put anyone, I mean one would think if that was a strategy that this looks far more like he's trying to bootstrap it to his lower back claim because he failed to appeal the TDIU.

[00:29:08] Speaker 06:
You're saying that Mr. Palmajir is in an either or situation.

[00:29:13] Speaker 06:
He either pursues TDIU separate and apart from all his other interests, or they're all bound up.

[00:29:23] Speaker 06:
He pursues them all together, but he can't pursue TDIU on both tracks.

[00:29:30] Speaker 00:
I think it's been an explicit statement.

[00:29:33] Speaker 00:
He could have he could have pursued it in this case, but we simply we have an affirmative.

[00:29:38] Speaker 06:
So going back to my hypothetical, if we read something in his appeal form to the board, that our view is the equivalent of asking explicitly for TDIU to be considered in his board appeal, then the board was in fact obligated to consider TDIU.

[00:29:59] Speaker 06:
Is that right?

[00:30:01] Speaker 00:
you're right if the if the court determined that he raised a claim for tbiu then the board would have had to consider it here we simply that the record did not there that out

[00:30:13] Speaker 01:
Well, just to be clear from full circle, I think your answer to Judge Chen's question is, if he hadn't had these TDIU claims, then perhaps this statement alerting the board to the fact that he hasn't been able to work since 1992 because of his back pain would have been sufficient.

[00:30:34] Speaker 01:
But what takes it out of the box is because he had this other claim going.

[00:30:38] Speaker 00:
Yes, Your Honor.

[00:30:39] Speaker 00:
It's the fact that he removed it from the claim stream and specifically requested for it to be adjudicated separately.

[00:30:45] Speaker 01:
And this wasn't... And again, did that... But aren't we indeed adjudicating two separate things?

[00:30:51] Speaker 01:
What was adjudicated in the TVIU scheme of things filed in 2009 was the prospective relief.

[00:30:59] Speaker 01:
You can tell me why Mr. Carpenter is wrong, but I understood him today that the only relief available to the claimant in that stream would have been relief going back to 2009, but not going back to 2002.

[00:31:17] Speaker 01:
If that is the case,

[00:31:19] Speaker 01:
then we're talking about him seeking different things.

[00:31:24] Speaker 01:
He's seeking TDIU prospectively in this set of claims, and he's seeking it retrospectively in the early set of claims.

[00:31:31] Speaker 00:
But Your Honor, if they're repeating, why would he have filed these separate claims if he thought it was always a part of it?

[00:31:36] Speaker 00:
Again, Mr. Palmatier took an aggressive strategy.

[00:31:40] Speaker 01:
Well, I guess the answer to that could be fairly that it's

[00:31:43] Speaker 01:
One is kind of hard pressed to figure out how the system works and how it's going to be treated.

[00:31:49] Speaker 01:
I mean, this whole case, I mean, he had a TDIU claim in 2003.

[00:31:53] Speaker 01:
Well, he dropped that because that was before he even got anything more than a zero rating on his back claim.

[00:31:58] Speaker 01:
So it's kind of uneasy to understand why he would not have pursued this case.

[00:32:03] Speaker 01:
But maybe he filed the 2009 thinking, oh good, I'm going to be able to get TDIU back to 2002.

[00:32:10] Speaker 01:
But somewhere along the process, he figured out he's not eligible to get retrospective relief for that claim.

[00:32:17] Speaker 01:
So he's got to pursue that retrospective relief in another context.

[00:32:25] Speaker 00:
reasonable well at that point he should have done something at that point i read that that if you you need to protect your right here he was it by an attorney td i you had been identified and it was up to the it was up to the veteran you have read that to the v a and he was not there for the board to say that it was not raised

[00:32:44] Speaker 00:
in the substantive appeal to the board where his attorney checked the box.

[00:32:48] Speaker 01:
But if we can prove that the form is having sufficiently at least raised it, which I think you conceded it would have raised it if not for these other claims that were pending, which kind of undid what otherwise he would have been entitled to have it heard.

[00:33:01] Speaker 00:
I don't think it undid it.

[00:33:02] Speaker 00:
I think this is the veteran presenting the claim to the board.

[00:33:05] Speaker 00:
I think there were many ways he could have brought it back.

[00:33:08] Speaker 00:
Potentially there are still ways he could still

[00:33:11] Speaker 00:
seek to obtain TDIU now through a clear and unmistakable error claim or an equity claim under 5503.

[00:33:18] Speaker 00:
But the point is that it's not error for the board to determine that here where the veteran has presented TDIU separately, had it adjudicated, not appeal it, and is under the advice of an attorney to do something, to alert to the board what he wants to do to preserve his rights.

[00:33:36] Speaker 00:
I don't think that is

[00:33:37] Speaker 00:
that is not a stretch of veterans law to require him to do that here and it was not an error on the part of the board to say that there was no live claim for TDIU as of 2012.

[00:33:49] Speaker 06:
is there some rule of thumb in veterans law that we're supposed to read the veterans briefings and arguments generously, sympathetically, something like that?

[00:33:58] Speaker 00:
Sympathetically, but the cases that we talked about here, Your Honor, Roberson and Comer, were cases where you had the veteran proceeding pro se.

[00:34:04] Speaker 00:
Here we did have a veteran under the advice of an attorney who was not seeking a higher rating.

[00:34:09] Speaker 00:
He merely said, I want to appeal the 40 percent

[00:34:12] Speaker 00:
effective date from my back and who had separately asked the VA to consider the TDIU claims.

[00:34:18] Speaker 00:
So I think that we're in a different context.

[00:34:21] Speaker 00:
There is always a duty to construe it sympathetically, but as the court said in Robinson, that doesn't mean that the veteran is completely relieved of his obligation to do something.

[00:34:31] Speaker 00:
The court has no further questions.

[00:34:39] Speaker 04:
unless the panel has some specific questions.

[00:34:40] Speaker 01:
Could you just reiterate?

[00:34:42] Speaker 01:
I mean, maybe I misunderstood what you said, but what I was asking your friend here about whether or not in the December 2009 filing, he could have, that would have, I understood what you're, I understood you to be saying that he could not have gotten retrospective relief under that filing from 2002.

[00:35:00] Speaker 04:
Correct.

[00:35:01] Speaker 04:
Is that correct?

[00:35:01] Speaker 04:
If that were accepted as a claim.

[00:35:04] Speaker 04:
then that claim begins on that date but because it's a claim for increase there's an exception under 5110B that allows a look back for only one year so from 2008 to 2009 and that's the entire limitation and it's clear from this record

[00:35:21] Speaker 04:
that Mr. Palmatier has been seeking extra scheduler since 2002.

[00:35:25] Speaker 01:
And do you read Comer and Roberson as being limited to cases in which the claimant is proceeding pro se, or are there different rules available?

[00:35:40] Speaker 04:
No, and I believe this court has rejected, except in the cue context,

[00:35:44] Speaker 04:
that representation by an attorney is not the bar that the VA is urging in this case.

[00:35:53] Speaker 04:
That's simply not the law.

[00:35:55] Speaker 04:
This is supposed to be a non adversarial system.

[00:35:57] Speaker 04:
This is supposed to be a system in which the VA is the veterans advocate in the administrative process and is to be looking for these things.

[00:36:07] Speaker 04:
To look to see whether or not there is a continuous claim

[00:36:11] Speaker 04:
for the initial rating to be assigned.

[00:36:14] Speaker 04:
He placed that at issue following the original rating assigned for his back.

[00:36:20] Speaker 04:
He disagreed with the initial rating.

[00:36:22] Speaker 04:
That issue has never been resolved by the board.

[00:36:26] Speaker 04:
And part and parcel of that is the rating for extra scheduler in the 2002 to 2009 window.

[00:36:31] Speaker 05:
Do you know of a case that explicitly says that the VA is supposed to serve as the veteran's advocate?

[00:36:42] Speaker 04:
Not in those words, Your Honor, but in the sense of what you had talked about with the government in terms of the board's obligation and the VA's obligation is to read his pleadings sympathetically.

[00:36:54] Speaker 04:
To read them with an eye towards what is he trying to get, as opposed to reading them, as I believe Judge Hagel read it here, with an eye towards what he does not want.

[00:37:07] Speaker 01:
thank you thank you very much