[00:00:14] Speaker 03:
The next case for argument is 14-7131, Romero versus McDonald.

[00:00:21] Speaker 03:
Give anyone a chance to get settled.

[00:00:23] Speaker 03:
Mr. Carpenter, whenever you're ready.

[00:00:38] Speaker 04:
May it please the court, Count Carpenter on behalf of Paul Romero.

[00:00:43] Speaker 04:
There are two issues in this case.

[00:00:44] Speaker 04:
The first deals with this court's rule of law created concerning deemed denied or implicitly denied claims.

[00:00:55] Speaker 04:
The position of the appellant is that the lower court and the board erred by relying upon this rule to dispose of the request for revision request.

[00:01:12] Speaker 04:
I'm sorry.

[00:01:12] Speaker 03:
Is it your view that this rule, which you accept as a rule, just doesn't apply in TDIU context?

[00:01:19] Speaker 04:
To the contrary, Your Honor, it requires the filing of a request for revision.

[00:01:24] Speaker 04:
But that's all it does.

[00:01:26] Speaker 04:
All that the rule does is to say that if there is a question of there being a pending claim,

[00:01:34] Speaker 04:
then that rule, the implicit denial or deemed denied rule, comes into play.

[00:01:40] Speaker 04:
If it is found that there was an intervening decision that disposed of that claim, then it would be considered by rule to have been denied.

[00:01:52] Speaker 04:
If denied, it's a final decision and it's subject to revision.

[00:01:56] Speaker 04:
There is no connection after that in the consideration of whether or not there was or was not a clear and unmistakable error in that final decision.

[00:02:06] Speaker 04:
To the contrary, this court's decision in Roberson controls the disposition when there is a issue that was not fully developed to its optimum before the claim was decided on its merits.

[00:02:21] Speaker 04:
And as a result of that,

[00:02:22] Speaker 04:
This court said in Roberson that that would be a clear and unmistakable error, that there would be a final decision based upon the pre-articulation of the implicit denial rule, that the issue was there, but it was not adjudicated.

[00:02:39] Speaker 04:
But the court said in Roberson that is not a pending claim.

[00:02:45] Speaker 04:
The decision that was made was a final decision, and that decision is subject to revision

[00:02:51] Speaker 04:
based upon the rule established in Hodge.

[00:02:54] Speaker 04:
The rule established in Hodge is that the VA has a duty to fully and sympathetically develop a claim to its optimum before deciding it on the merits.

[00:03:06] Speaker 04:
The claim in this case is a claim for increased compensation.

[00:03:10] Speaker 04:
The VA granted scheduler increase to 70 for a portion and from August 2002 forward, a 100% scheduler rating.

[00:03:19] Speaker 04:
For some 13 months prior to August of 2002, the remaining issue was entitlement to extra scheduler.

[00:03:27] Speaker 04:
In this case, the board and the Veterans Court acknowledged that an implied claim for an extra scheduler total rating, or TDIU, was raised by the evidence.

[00:03:37] Speaker 04:
That was not adjudicated.

[00:03:40] Speaker 04:
When it was not adjudicated under this court's rule in Roberson,

[00:03:44] Speaker 04:
That was a clear and unmistakable error.

[00:03:47] Speaker 04:
It was never referenced, Your Honor, that the existence of entitlement to an extra scheduler total rating under 4.16A, which is required when you meet the scheduler requirements, in this case of 70 percent for a service-connected disability,

[00:04:10] Speaker 02:
Triggered consideration of that on an exercise.

[00:04:22] Speaker 02:
That's contrary.

[00:04:27] Speaker 04:
Well, there was a final decision.

[00:04:34] Speaker 04:
Under Roberson, it was not an adjudication.

[00:04:37] Speaker 04:
It was a clear and unmistakable error.

[00:04:40] Speaker 04:
Because Roberson says, if you don't decide the issue.

[00:04:45] Speaker 04:
The board cannot make a legal determination that there was an adjudication when in fact there is nothing in the record.

[00:04:53] Speaker 02:
Is that a question of law or fact?

[00:04:55] Speaker 02:
I understood it to be a factual question.

[00:04:57] Speaker 02:
Whether it was decided by the lower.

[00:04:59] Speaker 02:
uh... i believe in the context of this court holding robertson dealing with extra-schedular consideration that is a question of law whether you're telling me whether or not did not given issue in the question of law and if it's a question of fact then you admit that that i was that absolutely what we're talking about here are you

[00:05:22] Speaker 03:
It's not intuitively obvious to me that there's a distinction between a decision and an adjudication.

[00:05:28] Speaker 03:
Correct.

[00:05:29] Speaker 03:
But is it your view that, yeah, there was a decision here.

[00:05:33] Speaker 03:
They decided no, but they didn't adjudicate it.

[00:05:37] Speaker 03:
They decided it without adjudicating it.

[00:05:39] Speaker 03:
Can you explain to me what that means?

[00:05:42] Speaker 04:
What that means is that there were two issues that needed to be decided.

[00:05:47] Speaker 04:
Entitlement to the scheduler rating, which they decided should be increased to 70%.

[00:05:52] Speaker 04:
The next issue was whether there was entitlement based upon that increase to an extra schedule or rating.

[00:05:58] Speaker 03:
And they decided that issue.

[00:06:00] Speaker 03:
They did not decide that issue.

[00:06:01] Speaker 03:
I thought you said they decided it but didn't adjudicate it.

[00:06:04] Speaker 04:
Well, as Judge Moore points out, the board found that it had been adjudicated, but it had been adjudicated under the board's analysis based upon the implied or deemed denied rule.

[00:06:18] Speaker 04:
That deemed denied rule cannot create an adjudication where there was no adjudication.

[00:06:24] Speaker 04:
That's the error of law here.

[00:06:27] Speaker 01:
In your view, what would that original decision have to say to satisfy Roeverson?

[00:06:37] Speaker 04:
In order to satisfy Roeverson, it would have to acknowledge the existence that once the veteran met the schedule or requirement under the regulation,

[00:06:45] Speaker 04:
that he was entitled to extra schedule or consideration and make a specific determination that he was able or unable to follow substantial gainful occupation as a result of his service-connected disability.

[00:06:58] Speaker 04:
And they did not do that.

[00:07:00] Speaker 04:
There is no reference in that decision in 2002 that discusses 4.16,

[00:07:07] Speaker 04:
discusses extra scheduler, or even acknowledges the fact that as a result of the increased scheduler rating, the provisions of 4.16 apply.

[00:07:19] Speaker 04:
If I could shift to the question of interpretation of 4.16, which we also allege as error in this case.

[00:07:26] Speaker 04:
We believe that the Veterans Court, by affirming the board's decision, relied upon the board's misinterpretation of 4.16.

[00:07:35] Speaker 04:
specifically that the, because the veteran in the words of the board was in fact working, that the mere fact of working was excluded consideration of his inability to secure or follow gainful occupation as a result of his service-connected disability.

[00:07:59] Speaker 04:
That's at direct odds with the plain language of the regulation.

[00:08:03] Speaker 04:
4.16a provides that a veteran may work and may in fact have what is called marginal employment under the regulation.

[00:08:12] Speaker 04:
Marginal employment is defined as

[00:08:15] Speaker 04:
uh... income that does not exceed the poverty line.

[00:08:19] Speaker 03:
Yeah, but the sentence in which you point out on J-58, I think that's what you're referring to, where they reference the fact that he was in fact working, is preceded by a direct quote from the regulation.

[00:08:33] Speaker 03:
So they obviously knew that was the standard, right?

[00:08:39] Speaker 04:
But that's the point, Your Honor.

[00:08:40] Speaker 04:
That is not the standard.

[00:08:41] Speaker 03:
I'm talking about the standard where they say, they quote the standard as being unable to secure and follow substantial gainful occupation, blah, blah, blah.

[00:08:50] Speaker 03:
That's the standard in the Reg.

[00:08:52] Speaker 04:
That's part of the standard in the Reg.

[00:08:54] Speaker 04:
But the Reg defines the ability to work as being included in the inability to secure or follow substantial gainful occupation.

[00:09:07] Speaker 04:
The disconnect here is that in the VA's own regulation,

[00:09:10] Speaker 04:
it says that a veteran may in fact be able to work and have income so long as that income from that work does not exceed the poverty level.

[00:09:26] Speaker 02:
almost besides the point because they found that there was no evidence from 2002 regarding whether or not he was gainfully employed.

[00:09:36] Speaker 02:
Your argument is what it means to be gainfully employed and even if I agree with everything you're saying there I don't see how it results in your client prevailing because what they said in 2000 there was no evidence in 2002 about his income from those

[00:09:52] Speaker 02:
people of employment he had, and once there was evidence from that point forward, he was 100% totally disabled.

[00:09:59] Speaker 02:
Once there was evidence, not of the 2002 quantity of employment, what else?

[00:10:05] Speaker 04:
The analysis required under 4.16, in this case in the 13-month window from July 2001 to August of 2002, is to determine whether or not he had more than marginal income.

[00:10:19] Speaker 04:
Your honor is absolutely correct.

[00:10:23] Speaker 02:
The only evidence of record was that he had had some problems in his job, but what wasn't introduced into record was anything regarding the amount of money he was making to assess whether he was gainfully employed.

[00:10:37] Speaker 02:
That's precisely the point, your honor.

[00:10:40] Speaker 02:
But your problem is, your argument really is the VA should have assisted him.

[00:10:44] Speaker 02:
They should have recognized this

[00:10:46] Speaker 02:
deficiency in the record evidence, and they should have sought it out or prompted him to seek it out.

[00:10:52] Speaker 02:
Well, that's duty to assist.

[00:10:53] Speaker 02:
And there's a statute that says duty to assist can never be queued.

[00:10:57] Speaker 02:
We've got an in-bank case that says the same thing.

[00:10:59] Speaker 02:
Don't agree with it.

[00:11:00] Speaker 02:
Wish it wasn't there.

[00:11:01] Speaker 02:
Like to go back and undo it.

[00:11:02] Speaker 02:
Can't.

[00:11:03] Speaker 02:
Bound by all of it.

[00:11:04] Speaker 02:
So I don't see how your argument is very circular, but I know with me how it is circular, Your Honor, because- In light of the duty to assist.

[00:11:13] Speaker 04:
because it is predicated upon the standard in Roberson.

[00:11:17] Speaker 04:
The standard in Roberson is based upon the standard adopted by this court in Hodge, that Congress imposed upon the VA the duty to fully develop.

[00:11:27] Speaker 02:
I agree that... That's the same thing.

[00:11:29] Speaker 02:
They're not indistinguishable.

[00:11:30] Speaker 02:
The duty to assist.

[00:11:30] Speaker 02:
You've got to fully develop it.

[00:11:32] Speaker 02:
Or are you talking about to analyze it in decisions?

[00:11:35] Speaker 04:
I'm talking about

[00:11:37] Speaker 04:
the holding in Roberson, which adopts the rule in Hodge that says that constitutes a clear and unmistakable error.

[00:11:46] Speaker 04:
And it is that precise failure to fully develop.

[00:11:49] Speaker 02:
What do you mean fully develop?

[00:11:51] Speaker 02:
I don't understand.

[00:11:52] Speaker 04:
To go get that evidence of what his income was.

[00:11:55] Speaker 04:
And there's a statute and an in-bank case of ours that says that can't ever amount to Q. As an allegation of Q. And this court addressed that in

[00:12:06] Speaker 04:
Roberson, and it said that when the VA fails to decide an issue, that that issue, the failure to decide it, is a clear and unmistakable error.

[00:12:19] Speaker 04:
And that is, you don't have to get into the duty to assist.

[00:12:23] Speaker 02:
But the board finally decided it here.

[00:12:26] Speaker 02:
The board expressly found it was being denied.

[00:12:29] Speaker 04:
And they misuse the deemed denied because deemed denied has nothing to do with the disposition of a request for revision.

[00:12:37] Speaker 04:
It only forces the veteran to make that request for revision.

[00:12:42] Speaker 03:
See that I'm into my rebuttal time.

[00:12:58] Speaker 00:
Thank you, Your Honor.

[00:12:58] Speaker 00:
Is Mitt pleased to court?

[00:13:00] Speaker 00:
I'd like to first address Mr. Romero's argument that the use of the implicit denial rule is incompatible with the VA's duty to fully develop a claim.

[00:13:08] Speaker 00:
As an initial matter, the court has already addressed the question of whether an informally raised claim can be subject to the implicit denial rule in its decisions in Deschottel and Adams.

[00:13:18] Speaker 00:
And there's really no distinction with the TDIU claim.

[00:13:22] Speaker 00:
In fact, in the court's decision in Deschottel, it referenced its 2005 decision in Andrews

[00:13:28] Speaker 00:
and in Roberson, where it stated that it was in fact following the same principle, that once a decision is rendered, if a claimant believes a decision has not been expressly made on one claim, and here it would be TDAU, which was at issue in Andrews, that the proper course is to either directly appeal that or to raise a Q challenge.

[00:13:57] Speaker 00:
One thing also I would note is that here, while the board used the language of implicit denial,

[00:14:03] Speaker 00:
The panel has correctly noted that the 2002 RO decision did address TDIU because while Mr. Romero was granted an increase of 70% per one period, period of July 2001 through August 2002, the same decision found that Mr. Romero was entitled to a TDIU rating of 100% effective August 15, 2002 forward.

[00:14:31] Speaker 03:
To ask you about the second point, the second issue we were talking about, about how you determine whether or not somebody is eligible.

[00:14:39] Speaker 03:
The JA58 statement that says the veteran, and it quotes the parts of 4.16, and then says, because he was in fact working.

[00:14:51] Speaker 03:
That's not right, is it?

[00:14:53] Speaker 00:
but i think that uh... important thing here but that's not correct is that it's not correct that that standard by which you've got to get you however i don't believe that the board or that are court thought that it was creating a uh... rule of law under which i think that you reading would be per se not applicable at the

[00:15:19] Speaker 00:
if there was any evidence at all of employment.

[00:15:21] Speaker 03:
Instead, it's important to put the... No, but at a minimum, they're deciding this case, and they're looking at the evidence in this case.

[00:15:27] Speaker 03:
Yes, Your Honor, but they're... He's saying he doesn't qualify because he was in fact working.

[00:15:32] Speaker 03:
But that's not right, is it?

[00:15:34] Speaker 00:
It is right in the context of Q, which is the context in which this case arose.

[00:15:39] Speaker 00:
Of course, in Q, it's a collateral attack, and there are very specific requirements for showing Q. First of all, it has to be based on the evidence in the record, and you have to show that there is an error that's outcome determinative.

[00:15:51] Speaker 00:
Here, Mr. Romero is stating that he believes he should have been awarded TDIU for a certain period.

[00:16:00] Speaker 00:
However, there was evidence in the record that he was employed during that period.

[00:16:05] Speaker 00:
And so, in terms of Q,

[00:16:08] Speaker 00:
He cannot establish that it was an undebatable error that the R.O.

[00:16:15] Speaker 00:
failed to grant him S.T.A.U.

[00:16:17] Speaker 00:
for that period.

[00:16:17] Speaker 03:
If there's evidence that somebody's working, that I worked at a minimum wage job for three hours a week, so you're saying there can never be a queue because they can say, well, in fact, there was some evidence that she worked three hours a day and made minimum wage.

[00:16:35] Speaker 03:
But again, then it can't be clear and unmistakable error.

[00:16:39] Speaker 03:
In fact, that doesn't even come close to meeting the substantially harmful employment standard.

[00:16:44] Speaker 00:
It would depend on the evidence of the record.

[00:16:46] Speaker 00:
And here, there isn't an evidence that Mr. Romero was below the poverty threshold in the record that was before the RO.

[00:16:55] Speaker 03:
The problem that I'm having is that they didn't say that.

[00:16:59] Speaker 03:
The only thing they referenced, and it's preceded by the word because, which means it's sort of cause-effecting, because he was in fact working.

[00:17:08] Speaker 03:
They don't describe what it was about the working, so do you think that's really okay?

[00:17:14] Speaker 00:
On to absolutely, because the question is whether the RO unbeatably erred on that record in determining that Mr. Romero had established a rating of 70%, which again, a 70% rating recognizes, and it's intended to under 38 USC 1155,

[00:17:36] Speaker 00:
that there are ways in which the disability is affecting the occupational earnings.

[00:17:44] Speaker 00:
So there's a 70% rating for that period.

[00:17:48] Speaker 00:
And there was evidence that Mr. Romero was working.

[00:17:51] Speaker 00:
Now, Mr. Romero knew that his income was not very great.

[00:17:57] Speaker 00:
But if he believed when he got that rating decision showing that 70% rating period for one portion of the time and 100% going forward in August of 2002, his options then were to file a direct appeal, or if he failed to do that, as he did, to raise a Q challenge.

[00:18:14] Speaker 00:
But once he failed to direct appeal, where he could have made arguments about the weight of the evidence or an argument about the marginal employment, having failed to file a direct appeal, however, he is in this very narrow context of Q.

[00:18:30] Speaker 00:
which recognizes that it is an exception to the important rule of finality and therefore has various infringement requirements and must be on the evidence in the record.

[00:18:40] Speaker 00:
And for TDIU, which is a recognition that a veteran is unable to work above marginal employment

[00:18:50] Speaker 02:
Evidence in the record does.

[00:18:53] Speaker 02:
Your argument, I think, taking a long time to get to what I'll say in the summary, I think is while it may have been an error when they said that he was employed, his route was to directly appeal it.

[00:19:07] Speaker 02:
But once you're at cue, you have to show not only that maybe there's some error in the language used by the decision maker, but it would be outcome dispositive clearly and unmistakably.

[00:19:17] Speaker 02:
And that this record doesn't establish that.

[00:19:19] Speaker 00:
That's right, and going back to Mr. Romero's first argument, he sort of weaves these arguments together where he's trying to conflate the rule of law in Roberson with the duty to assist.

[00:19:33] Speaker 00:
If we look at what Mr. Romero is really arguing here, he's stating that any time

[00:19:40] Speaker 00:
Any time a veteran can point to a final decision and say, I think there's enough in the record to show that I established an informal claim for TDIU, but there's no expressed reference to TDIU in the decision, that not only would the veteran then establish Q, but would be eligible to a TDIU rating.

[00:20:01] Speaker 00:
But that completely ignores the second half of the Q standard, which requires an outcome determinant of error.

[00:20:10] Speaker 02:
promotes a standard under which there would be a... The argument would be, we don't know what's outcome-determinative, because, for better or worse, the record at that time doesn't contain information along the lines of, he was only working about three hours a week.

[00:20:25] Speaker 02:
It doesn't contain information upon which any reasonable person would know he was not gainfully employed.

[00:20:31] Speaker 00:
Yes, but more than that, Mr. Romero was arguing that the VA shouldn't be able to look at the evidence at the point that he's arguing that there's a Roberson error.

[00:20:40] Speaker 00:
He's saying that as long as he can establish that there's not an express statement relating to TDIU in a decision, that the veteran would be entitled to TDIU regardless of whatever evidence was in the record.

[00:20:57] Speaker 00:
Here, of course, this argument is particularly not well made because the RO's decision does, in fact, address TDAU because it was awarded for a part of the period that was under consideration.

[00:21:10] Speaker 00:
If the court has no further questions.

[00:21:16] Speaker 04:
We need to correct the record here.

[00:21:19] Speaker 04:
Notwithstanding what the government just said, the 2002 decision did not address TDIU.

[00:21:25] Speaker 04:
What the 2002 decision did when it addressed a scheduler rating of 100%, it was operating under a completely different set of regulations.

[00:21:35] Speaker 04:
Scheduler ratings for psychiatric disabilities are controlled by 38 CFR 4.130.

[00:21:41] Speaker 04:
Extra scheduler ratings

[00:21:44] Speaker 04:
which is TDIU, are controlled by 4.16a.

[00:21:49] Speaker 04:
When you grant a scheduler rating, as they did in this case in 2002, they're using the VA's schedule of ratings for disabilities, in this case a psychiatric disability, and they assigned a 100 percent disability rating going forward from August of 2002.

[00:22:07] Speaker 04:
The government is absolutely incorrect when it states to this court that TDIU was decided in 2002.

[00:22:14] Speaker 04:
It was not.

[00:22:15] Speaker 04:
It was never mentioned.

[00:22:17] Speaker 04:
Review the record.

[00:22:18] Speaker 04:
There is no reference to 4.16a, an inability to work, or TDIU in the 2002 decision.

[00:22:27] Speaker 02:
wait wait i want to know if you didn't pay j thirty and there is a question if you're in the building permanent you can't be the subject to review five years one hundred percent total occupational and social impairment that's what we're saying in ability to work that frankly a total occupational impairment why should i not conclude that decision on your employability because that's the schedule or criteria under four point one three up

[00:22:56] Speaker 04:
In order to get a 100% rating, you have to have a total social and industrial impairment.

[00:23:03] Speaker 04:
That's the scheduler requirements to assign a 100% scheduler rating.

[00:23:08] Speaker 04:
That cannot be confused with the extra scheduler total rating, which provides for an inability to work specifically without regards to social considerations.

[00:23:21] Speaker 04:
due to the service-connected disability, which is available by separate regulation under 4.16a.

[00:23:28] Speaker 04:
Those are completely different, Your Honor.

[00:23:30] Speaker 04:
And for the government to suggest otherwise is simply incorrect and disingenuous before this Court.

[00:23:36] Speaker 04:
The other consideration is that the government comes before this Court and offers a post-hoc rationalization for what the Board might have done relative to a Q analysis.

[00:23:50] Speaker 04:
There is no determination at page 59 that the conclusion about in fact working had to do with the Q analysis, with the analysis of outcome determinative or a manifestly different outcome.

[00:24:06] Speaker 04:
That is simply not what took place.

[00:24:09] Speaker 04:
All that took place was is they cited the regulation and then they said he didn't demonstrate it because he was in fact working.

[00:24:18] Speaker 04:
as Judge Proce correctly confronted the government with, that is not the legal standard.

[00:24:23] Speaker 04:
You can, in fact, work and be entitled to an extra schedule or rating under 4.16.

[00:24:28] Speaker 03:
Thank you very much, Your Honor.