[00:00:00] Speaker 01:
Scott versus McNaughton.

[00:00:24] Speaker 01:
Okay, who's now?

[00:00:28] Speaker 01:
Good morning.

[00:00:30] Speaker 01:
You may proceed.

[00:00:36] Speaker 00:
May it please the Court, Jennifer Lebrock-Nall for veteran appellant Curtis Scott.

[00:00:41] Speaker 00:
This appeal is about whether the Veterans Court has discretion to refuse to substantively address an issue appealed below.

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In particular, Mr. Scott appealed the Board's failure to comply with the requirement that it must provide an adequate statement of reasons and bases

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that it satisfied its duty to assist.

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There are two independent reasons why the Veterans Court erred.

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First, the Veterans Court does not have discretion to refuse to consider this issue as a matter of law.

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And second, the testify... Do we have jurisdiction to be here in this case?

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Are we talking about an application of law to facts?

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No, Your Honor.

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This is not an application of law to facts.

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This is whether or not

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as a matter of law, the Veterans Court has the discretion to refuse to consider an issue.

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And under SIMS, the Supreme Court case that addressed Social Security Benefits, Social Security Benefits Appeal, the agency review of a decision where it's non-adversarial and here where it's pro-claimant should not

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have an issue exhaustion, judicially created issue exhaustion applied to that case.

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Could I understand the facts here?

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If I understand correctly, the request for a hearing was raised the first time before the board, but then it wasn't raised in the first appeal to the Veterans Court.

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Yes, Your Honor.

[00:02:09] Speaker 01:
And the second time around, it wasn't raised before the board, but it was raised before the Veterans Court.

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Is that correct?

[00:02:17] Speaker 00:
I respectfully disagree, Your Honor.

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Below in the board, that issue was at issue in front of the board.

[00:02:24] Speaker 01:
No, I understand your contention that it was at issue, but it wasn't explicitly raised before the board the second time around, right?

[00:02:32] Speaker 00:
Yes, Your Honor.

[00:02:32] Speaker 00:
It was not explicitly raised.

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But in the record at A183, the recertification document shows that

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box 10 was checked showing that an appeal, that a hearing was requested and denied.

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This issue was squarely in front of the board.

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And on remand from the Veterans Court, the board has an obligation to re-adjudicate the matter anew.

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And this issue was reasonably raised by the record.

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It's a statutory requirement that the board adequately provide a statement, provide an adequate statement of reasons and bases.

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And the board did not do that.

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The fact that this issue was a similar error occurred previously does not change the fact that this issue did happen, that this error did happen in front of the board in 2012.

[00:03:25] Speaker 01:
Well, I guess the question is, we've interpreted sims some.

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And we have the Robinson case, which says that certain things raised by the record have to be addressed by the Veterans Court.

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The question or the board.

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And the question is here, does this fall into that category?

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It does seem to be a procedural objection to the lack of hearing, which is a little bit different than requiring that the Board and the Veterans Court consider certain pieces of evidence that might bear on the question of whether a particular condition was service-connected.

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The question I have is how far should we go in saying that they have to scour the record to find every possible

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issue?

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Well, Your Honor, under Robinson, this court wrote that if it's reasonably raised by the record and the form nine, the appellant, the veteran checked the box that they were appealing all issues, then there is not an issue exhaustion problem.

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Under Robinson,

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the veterans court held at the factual issue that wasn't reasonably raised by the record here the veterans court has not addressed at all whether this issue was reasonably raised by the record and as a matter of law it is reasonably raised by the record the board specifically addressed this though with clear error and the veterans court should have come to a decision whether or not as a factual problem is that the issue was raised and it was addressed

[00:05:00] Speaker 02:
And it wasn't raised after that.

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I mean, your client had two different occasions upon which to raise the issue, but chose not to do it, or didn't do it.

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So, Your Honor, had the veteran lost in the first appeal to the Veterans Court, this issue would have been waived.

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But because the Veterans Court remanded, the board had an obligation to re-adjudicate a new.

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and at that time in all procedural issues anything really recently raised by the record that's the problem here right here you're going to not raise the issue before the before the the the uh... better your honor the before the before the board uh... decline explicitly told the board that he was incarcerated and the board

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scheduled him for hearing a full year before his parole date, his first possible parole date.

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And the board did not do anything to assist as required to comply with the duty to assist.

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And your client argued against that at that point, but not after that?

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Your Honor, at that point the client was pro se.

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And at that point the client, Mr. Scott,

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said to the board, I was unable to obtain transportation, and please reschedule.

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After the issue went up to the Veterans Court and got remanded, the board explicitly addressed this issue.

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They said that Mr. Scott requested a hearing, failed to attend, and subsequently

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told the board that he was incarcerated, which is clear error.

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And the board did not address anything that it did in terms of helping Mr. Scott for perhaps getting a teleconference set up at the jail or anything like that.

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The board did nothing.

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The record shows that there was nothing done to assist Mr. Scott.

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When the board addressed it in 2012, the board had an obligation to find anything reasonably raised by the record.

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This is reasonably raised by the record.

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The record is clear as to the order of events.

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And there is a systematic pattern of the board of the VA denying veterans their hearings when they're incarcerated.

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So when the Veterans Court remanded in the first instance, why shouldn't we view that as addressing the issue?

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your honor, the precedent in the veterans court is that when they remand, the board has an obligation to look at all issues recently raised by the record.

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And there's no notice to the veteran, unless this court decides it, there's no notice to the veteran that he had an obligation to raise every single thing that he could possibly raise.

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And he would have been foreclosed from arguing in the future that an error similar to a prior error was not properly exhausted.

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There needs to be

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some kind of notice for a new rule and publication in the Federal Register and a form provided to the veterans if there's an obligation, if there's an issue of exhaustion requirement that's going to be imposed on veterans.

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And it's inappropriate under SIMS for the Veterans Court to have created it, to create and to apply an issue of exhaustion requirement without giving proper notice prior to the veteran.

[00:08:41] Speaker 03:
uh... if you if you don't have no further questions uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:09:11] Speaker 03:
your honor is that the issue was raised the first time before the board well the the motion was to the board to back in uh... plot my time on your honor uh... back in two thousand eight the motion was made to the board itself to have you had a lot of the board that's correct you know if they have been appealed injected to the lack of a hearing that's correct totally different cases which are all

[00:09:40] Speaker 01:
I mean, I guess what I'm wondering about is what the scope of Robinson is and when issues have to be raised and when the board or the Veterans Court has to consider them because they're there in the record.

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Could you help us?

[00:09:57] Speaker 03:
Sure, Your Honor, and we can turn directly to Robinson for this, Your Honor.

[00:10:01] Speaker 03:
Robinson says that there really needs to be a balancing here, Your Honors, and I'm looking at pages 1361 to 1662, Your Honors.

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Basically, what Robinson is saying is that, yes, the court must read a claimant's filings liberally.

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That does not excuse the individual of the obligation to actually raise those issues ahead of time, beforehand.

[00:10:25] Speaker 02:
There's no question that he raised the issue at one point.

[00:10:29] Speaker 03:
Well, he made the motion, Your Honor, but he didn't say that the motion failed in its duty to assist.

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That's the actual issue.

[00:10:37] Speaker 03:
that's it now before he did read before or will you hear it i'm sorry i think it is a miscommunication that he he did raise a uh... but the motion saying uh... i would like to have my own here and that's right and i think you're

[00:10:53] Speaker 01:
And then he came back and said, I'd like to hear it, like a rescheduled hearing, right?

[00:10:57] Speaker 03:
Well, they gave him a hearing, Your Honor.

[00:11:00] Speaker 03:
He did not attend.

[00:11:01] Speaker 02:
Well, he was in jail.

[00:11:02] Speaker 02:
Correct.

[00:11:03] Speaker 02:
In fact, he said they wanted to have a, what is it, like a conference call hearing.

[00:11:10] Speaker 03:
A teleconference in Houston, Your Honor.

[00:11:12] Speaker 02:
Correct.

[00:11:13] Speaker 02:
But he was in jail, so he could not attend.

[00:11:15] Speaker 02:
And he said, no, you have to show up in person.

[00:11:18] Speaker 02:
And he was in jail.

[00:11:20] Speaker 03:
Well, Your Honor, he had said that he was in jail, yes.

[00:11:23] Speaker 00:
Told him ahead of time.

[00:11:24] Speaker 03:
Did still request a video conference hearing, which would have occurred in Houston, and he's in jail in, I believe, Huntsville, two different places.

[00:11:32] Speaker 03:
He was notified twice, as well as his representative.

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At this time, Mr. Scott was not represented by counsel, but he had a representative.

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That if he could not attend his hearing, he needed to timely request a rescheduling two weeks in advance.

[00:11:47] Speaker 03:
He did not do so despite being told that twice.

[00:11:50] Speaker 01:
Well, suppose we disagree with you and we say, yep, he raised it before the board the first time around in 2008.

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He asked for a hearing.

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He didn't need to do anything more to preserve the issue.

[00:12:01] Speaker 01:
And the question is whether he needed to raise it again thereafter.

[00:12:06] Speaker 01:
Let's suppose we say that, OK?

[00:12:09] Speaker 01:
Under those circumstances, did he have to raise it again, or was it sufficient that he raised it the first time before the board?

[00:12:18] Speaker 03:
you mean if he if you had actually raised on field veterans court on the first time but not even raised it before the board correctly didn't explicitly are you first time but he would have had a rate of the second time your honor because he did not appeal that matter before veterans court i would say i think what he here is your honor is that mister scott is asking for hearing on the fact that they existed uh... at in two thousand eight the matter was remanded by the veterans court

[00:12:48] Speaker 01:
But nothing changed about the hearing issue, right?

[00:12:50] Speaker 03:
Well, the facts were further developed, Your Honor.

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A supplemental statement of the case came out.

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Mr. Scott responded to that supplemental statement of the case.

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The facts that he's saying would have been presented on appeal the first time around back in 2008, they're outdated.

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He had an opportunity to provide new facts to the board and didn't do it if there are facts that still exist he hasn't told.

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In fact, Your Honors, today, he could file a claim.

[00:13:13] Speaker 02:
He won at the Veterans Court.

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He won remand.

[00:13:15] Speaker 03:
Correct.

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But he still had to show his claim and present his claim to the board and the RRO.

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We're going to get a remand, going back to the board, and by the way, give me a hearing.

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He didn't ask for a hearing the second time around.

[00:13:30] Speaker 02:
That's what I'm saying.

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You're saying he should have.

[00:13:32] Speaker 03:
Correct, Your Honor.

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That's absolutely correct.

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He went to the RRO.

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He went back further, and there was a further examination.

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And there was no request for a new board.

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There was no argument that the further request was improperly denied.

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There was an opportunity for Mr. Scott, through counsel, at this point he is represented, to provide facts in response to the supplemental statement of the case denying him service connection for Hepatitis C. And Mr. Scott simply didn't do any of this.

[00:14:02] Speaker 01:
What's the standard for getting a hearing?

[00:14:08] Speaker 01:
Well, he just has to request one, I believe.

[00:14:10] Speaker 01:
Well, then the fact that you're talking about didn't change that at all.

[00:14:14] Speaker 01:
I mean, all he had to do was request them.

[00:14:16] Speaker 01:
But he didn't, Your Honor.

[00:14:17] Speaker 03:
That's our point.

[00:14:18] Speaker 01:
He did not request one a second time around.

[00:14:21] Speaker 01:
Yeah, but was there a reason for him to request it since it had been denied the first time?

[00:14:27] Speaker 03:
Well, certainly he's saying that he has facts that could have been presented to the court, yes.

[00:14:31] Speaker 03:
Absolutely.

[00:14:32] Speaker 03:
It was remanded, and it was a new supplemental statement of the case, Your Honor.

[00:14:36] Speaker 03:
The old supplemental statement of the case, which he had originally requested a hearing on,

[00:14:39] Speaker 03:
was out-of-date, it was moved.

[00:14:41] Speaker 03:
There's a new finding by medical examination, new things to discuss here.

[00:14:46] Speaker 02:
That kind of goes to the merits, though.

[00:14:48] Speaker 03:
Exactly, Your Honor.

[00:14:49] Speaker 02:
Right.

[00:14:49] Speaker 02:
So he raised, by way of motion, that I want to hear him.

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That was denied.

[00:14:56] Speaker 02:
And now you are arguing he never did raise the issue that he wants to hear him.

[00:15:01] Speaker 03:
Well, I'm going to back up further here for a second.

[00:15:04] Speaker 03:
The way this went, Your Honor, was there was a request for a rescheduling of

[00:15:09] Speaker 03:
his hearing that he did not attend it was denied then there was an appeal to the veterans court well he said let me have a hearing on march two thousand nine because i'll be out of jail by then or said no we're going to have it in march two thousand eight when you're still in jail no your honor that's not actually what occurred uh... mister scott gave all indication that he was going to attend the hearing in houston in march of two thousand and uh...

[00:15:39] Speaker 03:
I'm forgetting the date right now.

[00:15:41] Speaker 03:
Regardless, in the March 14th hearing.

[00:15:45] Speaker 03:
Now, it's not unusual for a prisoner to be able to attend a video conference hearing outside of the prison.

[00:15:50] Speaker 03:
Transportation needs to be arranged with the prison itself, and the prison needs to agree.

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Or the prisoner can send a representative in their place.

[00:15:59] Speaker 01:
Has this been a pervasive problem?

[00:16:00] Speaker 01:
Has this issue come up in other cases about ordering hearings while people are incarcerated?

[00:16:07] Speaker 03:
Your Honor, I'm aware of Veterans Court cases discussing whether or not an individual, excuse me, the Veterans Court gave the individual, you know, satisfied the duty to assist because the individual was incarcerated.

[00:16:22] Speaker 03:
I don't know if this is a persuasive problem, Your Honor, that hasn't come up as this is an overriding issue.

[00:16:28] Speaker 03:
This is the first matter that I'm aware of before this Court discussing this exact thing.

[00:16:33] Speaker 03:
But the issue has come up at the Veterans Court.

[00:16:35] Speaker 01:
How often do veterans get hearings by video conference when they're incarcerated?

[00:16:41] Speaker 03:
I'm not aware of any percentage along those lines, Your Honor.

[00:16:45] Speaker 03:
They are entitled to a hearing, and the VA must treat incarcerated veteran like it would treat another veteran.

[00:16:55] Speaker 03:
They must have the same rights.

[00:16:58] Speaker 03:
depending on what the prison says and what's possible, ways to get around, giving the individual a video conference.

[00:17:06] Speaker 03:
It all depends on the facts, facts that weren't developed below, Your Honors, because Mr. Scott never challenged this issue.

[00:17:14] Speaker 03:
He simply filed a motion.

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It was denied.

[00:17:17] Speaker 03:
And then he waited years before appealing it to the Veterans Court for a second time.

[00:17:22] Speaker 02:
So on this appeal before us, can you

[00:17:29] Speaker 02:
Can you show me or can you tell us how the Veterans Court weighed the Veterans' interest with those of the VA in arriving at this decision?

[00:17:40] Speaker 03:
Well, Your Honor, under the Bernklau case, there's no need to actually spell this out in the case, in the actual decision by the Veterans Court, excuse me.

[00:17:49] Speaker 03:
In the reply brief by Mr. Scott, he knows that, argues that there's some inconsistency between Maggot

[00:17:55] Speaker 03:
and Bernklau even arguing in a footnote that Bernklau is wrong.

[00:17:59] Speaker 02:
How would we review that decision, whether or not there's a nary in Wayneville's interest?

[00:18:07] Speaker 03:
Well, Your Honor, I mean, there's a presumption of regularity.

[00:18:11] Speaker 03:
There must be at first a showing by Mr. Scott that there is some compelling evidence to actually rebut that presumption before this Court could ever look at it under Bernklau.

[00:18:22] Speaker 03:
And in this situation, Mr. Scott hasn't done this whatsoever.

[00:18:25] Speaker 03:
He simply said that because there was no actual detailed case-by-case analysis of the interests, then there must be reverse.

[00:18:33] Speaker 03:
You're saying that the Veterans Court does not have to have any detail?

[00:18:36] Speaker 03:
That's correct on the burn cloud, Your Honor, yes.

[00:18:38] Speaker 03:
Now, the Bradley case that Mr. Scott raises, the Veterans Court wrote that decision before MAGIC came out.

[00:18:45] Speaker 03:
It was written in 1999.

[00:18:47] Speaker 03:
MAGIC is from 2000.

[00:18:49] Speaker 03:
So there was no presumption of regularity in that matter, because that veterans court couldn't rely upon Magic and what the law actually was.

[00:18:58] Speaker 03:
So it's a very different case than what actually happened with Burn Cloud, which came out, the veterans court came out after Magic's decision in 2000 and relied upon Magic.

[00:19:08] Speaker 03:
So therefore, there's presumption of regularity around it.

[00:19:11] Speaker 01:
So to what extent is the veterans court looking at issues in the record that weren't specifically raised by the veterans

[00:19:19] Speaker 01:
well i think that uh... robertson is a good example we've got side factor on a promise you in the beginning of this argument i would tell you about robertson in robertson the ish basic issue of the service and i was ready for a get-together robertson i didn't hear about that my question is under robertson to what extent is the veterans court finding things in the record that the veteran has been specifically raised do you have a sense of how often this is happening oh overall your honor yeah yeah just anecdotally uh... i do not your honor

[00:19:49] Speaker 03:
To be completely honest with this court, I have seen it before in cases, but I can't represent to this court that the Veterans Court is doing anything beyond what is required to do in Robinson or anything like that.

[00:20:04] Speaker 03:
And what it is required to do in Robinson is once an issue has been raised to reasonably interpret the filings, liberally interpret, excuse me, let me take a step back here and say liberally interpret the filings of the claimant

[00:20:17] Speaker 01:
It seems to go a little bit beyond that because the issue of secondary service connection was not specifically raised in Robinson, yet we said that that had to be addressed.

[00:20:28] Speaker 03:
Right, and the Robinson court looked at the filings and liberally interpreted them saying if this individual wants service connection, they also want secondary service connection.

[00:20:38] Speaker 03:
What Mr. Scott wants is to say that

[00:20:41] Speaker 03:
There's only one issue in this case, in the supplemental statement of case, and this is on 830 in the short appendix, and that is service connection with hepatitis C. Mr. Scott wants this court and the Veterans Court to presume that when an individual raises disagreement with service connection, to presume that they're also challenging every procedural denial that occurred below.

[00:21:03] Speaker 03:
And that's far afield for Robinson, Your Honors.

[00:21:06] Speaker 03:
That's completely different.

[00:21:08] Speaker 03:
When, and turning to the reply brief for a moment, Mr. Scott argues that he challenged all the issues, pointing to the Form 9.

[00:21:20] Speaker 03:
The Form 9 that he filled out, Your Honor, was from April 27, 2006, two years before the denial of his motion for a rescheduling of his hearing.

[00:21:32] Speaker 03:
So at that point, even if that was sufficient,

[00:21:35] Speaker 03:
to say I'm challenging every single issue, including procedural issues.

[00:21:39] Speaker 03:
It was two years before the procedural denial of this case.

[00:21:42] Speaker 03:
Beyond that, Form 9 does not say all issues alone.

[00:21:46] Speaker 03:
It says, quote, I want to appeal all the issues listed in the statement of the case.

[00:21:52] Speaker 03:
And that's JA30.

[00:21:55] Speaker 03:
The statement of the case has only one issue here, as I just noted a moment ago, service connection for hepatitis C. And that's JA758.

[00:22:05] Speaker 03:
Your honor, this is very different than the situation that you've, hypothetically, you've posed, your honor.

[00:22:11] Speaker 03:
It's a procedural decision by the board, an out-of-date procedural decision, because it was remanded.

[00:22:19] Speaker 03:
The board met for a second time.

[00:22:20] Speaker 03:
It wasn't an RO and a second examination.

[00:22:23] Speaker 03:
And these facts that Mr. Scott said he would deny the opportunity to provide to the board in the first instance, he could have provided and should have provided.

[00:22:33] Speaker 03:
to the board in the second instance.

[00:22:36] Speaker 03:
If the court has no further questions, we respectfully request the court affirm the decision of the next court.

[00:22:41] Speaker 01:
Okay.

[00:22:41] Speaker 03:
Thank you, Mr. Romali.

[00:22:42] Speaker 03:
Thank you.

[00:22:44] Speaker 01:
Ms.

[00:22:46] Speaker 01:
Nall?

[00:22:50] Speaker 00:
Your Honor, Form 9 controls the appeal from the regional office to the board, and it is undisputed that Mr. Scott checked the box appealing all issues.

[00:22:59] Speaker 01:
But that regulation, that form... Was that in 2006, or did he do that later?

[00:23:04] Speaker 00:
That was in 2006.

[00:23:05] Speaker 00:
That is the only time that he was ever required under the regulations to check the box.

[00:23:10] Speaker 00:
When the board remanded to the RO, and after the Court of Appeals remanded to the board, the board said that he didn't have to do anything to... It would automatically go back up on appeal to the board.

[00:23:22] Speaker 00:
There was no form for him to fill out.

[00:23:25] Speaker 00:
There was nothing he needed to do to preserve

[00:23:28] Speaker 00:
that he checked the box appealing all issues.

[00:23:30] Speaker 00:
But that is an appeal of issues between the regional office and the board.

[00:23:34] Speaker 00:
Appealing issues of error from the board to the Court of Veterans Appeals, there's no form that he has to fill out.

[00:23:44] Speaker 00:
All there is is this certification for appeal that appears in the record at 182 and 183.

[00:23:51] Speaker 00:
And in 2012, when his appeal was recertified to the Veterans Court,

[00:23:55] Speaker 00:
The letter said that it would be decided as quickly as possible, depending on, as a factor, whether a hearing was requested, past tense.

[00:24:08] Speaker 00:
And then the form at page 183 shows that it checks the box.

[00:24:12] Speaker 00:
Was a hearing requested?

[00:24:13] Speaker 00:
Yes.

[00:24:14] Speaker 00:
There is nothing more that he was required to do to preserve this issue.

[00:24:23] Speaker 00:
Your honors asked whether there is a pattern of denying veterans hearings.

[00:24:30] Speaker 00:
If you review the Scott v. Shinseki case that appears in Mr. Scott's opening brief on page 33, footnote 12, that case has to do with a writ of mandamus where the veteran was incarcerated and requested a hearing at the jail because he was unable to get transportation.

[00:24:51] Speaker 00:
and the board said we cannot provide that to you at all.

[00:24:56] Speaker 00:
He filed a writ of mandamus, the Veterans Court remanded and said, or told the secretary, why can't you provide this?

[00:25:03] Speaker 00:
A teleconference hearing is something that you allow by backup to your video conference hearing.

[00:25:09] Speaker 00:
Why can't you allow it at the jail?

[00:25:12] Speaker 00:
And after many back and forth on this writ, eventually the secretary said in 2014 that

[00:25:20] Speaker 00:
they would allow him to have a teleconference hearing at the jail as yet another test case.

[00:25:25] Speaker 00:
There's one other test case that they acknowledge ever happened.

[00:25:28] Speaker 00:
And so in 2014 was the second time they ever allowed a veteran to have a test case of a hearing at the jail.

[00:25:38] Speaker 00:
And there is nothing in the record to indicate that Mr. Scott knew before the day of the hearing that his request to get transportation to the hearing would be denied

[00:25:45] Speaker 00:
When he told the board that he would like to reschedule because he was unable to get transportation, it should have been more artfully said.

[00:25:55] Speaker 00:
It should have had more information.

[00:25:57] Speaker 00:
But he was pro se.

[00:25:59] Speaker 00:
He didn't know better, perhaps.

[00:26:01] Speaker 00:
And the board never asked him for clarification.

[00:26:04] Speaker 00:
They never did anything to assist him.

[00:26:07] Speaker 00:
He was pro se, and they never asked him, why were you unable to get transportation?

[00:26:11] Speaker 00:
Why didn't you know that beforehand?

[00:26:13] Speaker 00:
They just denied it and said, good cause has not been shown.

[00:26:23] Speaker 00:
And also, under Robinson, the CAVC should have determined whether this issue was reasonably raised by the record as a fact.

[00:26:32] Speaker 00:
That was not decided here.

[00:26:33] Speaker 00:
And this court should vacate in remand for a finding of fact by the veterans court whether this was reasonably raised by the record, though, as a matter of law,

[00:26:43] Speaker 00:
an issue that the board is required to address, statutorily required to address, should be always reasonably raised by the record.

[00:26:53] Speaker 00:
So the Veterans Court should have addressed as a substantive issue whether or not the board provided an adequate statement of reason.

[00:27:01] Speaker 01:
Why is the board statutorily required to address the issue?

[00:27:06] Speaker 00:
The statute is 38 USC 5103A, which requires that the board

[00:27:12] Speaker 00:
assist and 38 USC 7104 D1, which requires that the board provide an adequate statement of reasons and basis.

[00:27:25] Speaker 00:
And also, looking at the decision from the Veterans Court, the language, there's two sentences with citations that address this issue.

[00:27:35] Speaker 00:
And it's not clear even that the Veterans Court was relying on issue exhaustion in this case.

[00:27:42] Speaker 00:
the presumption of regularity should not apply where you can't tell what the Veterans Court really did.

[00:27:48] Speaker 00:
The reason Mr. Scott argues that they applied issue exhaustion is that there is a citation to Maggot in line after many citations, and that is the only case they cite that allowed the Veterans Court not to address an issue.

[00:28:05] Speaker 00:
But it's possible that it's

[00:28:08] Speaker 00:
that the veterans court is just not allowing piecemeal litigation, which is not an issue of law.

[00:28:13] Speaker 00:
That's not a legal concept.

[00:28:16] Speaker 00:
If your honors have no further questions, Mr. Scott respectfully requests this court vacate and remand.