[00:00:21] Speaker 02:
Okay, the next argued case is number 15-7035, Andrews against the Secretary of Veterans Affairs.

[00:00:29] Speaker 02:
Mr. Carpenter.

[00:00:31] Speaker 01:
May it please the court?

[00:00:32] Speaker 01:
Kenneth Carpenter, pairing on behalf of Mr. Edward Andrews.

[00:00:36] Speaker 01:
The court please, we believe that this court's February 2014 decision

[00:00:42] Speaker 01:
was clear and unambiguous in its holding.

[00:00:45] Speaker 04:
I sure didn't think I'd see you back here on this particular case.

[00:00:48] Speaker 01:
Well, I sure didn't either, Your Honor.

[00:00:54] Speaker 01:
I confess to not understanding the ruling below.

[00:00:58] Speaker 01:
I believe I understood the ruling here, but apparently... The ruling below had the flavor of the Italian one of these, which luckily will not appear on the record.

[00:01:14] Speaker 01:
That was certainly my impression, Your Honor.

[00:01:21] Speaker 01:
And I'm here to answer any questions.

[00:01:24] Speaker 04:
I've yet to see you spellbound before, but apparently you succeeded.

[00:01:27] Speaker 01:
You succeeded.

[00:01:31] Speaker 01:
I think we've made our position perfectly clear in the briefs.

[00:01:35] Speaker 01:
I'm not sure what else it is I can say, other than the fact that I believe... I was just curious.

[00:01:40] Speaker 04:
One of the things you didn't move for here, and of course, oral motions are always welcome, is to have this case reassigned to a different judge on remand.

[00:01:48] Speaker 04:
Do you think that might be necessary?

[00:01:49] Speaker 04:
Do you think that your client can continue to get all of the proper adjudication below, if it goes back to the same judge?

[00:02:03] Speaker 04:
I just put you in an awkward position.

[00:02:07] Speaker 01:
Sorry.

[00:02:07] Speaker 01:
Yes.

[00:02:09] Speaker 04:
But I'm not really sure that's... You could just say we're not making that motion, and that's OK.

[00:02:14] Speaker 01:
Well, I'm not sure it's necessary, Your Honor.

[00:02:16] Speaker 01:
I believe that this was a complete misreading of what this court did.

[00:02:24] Speaker 01:
And it was an effort to divine a resolution other than the one that was intended by this court.

[00:02:31] Speaker 01:
And I believe if this court

[00:02:34] Speaker 01:
reaffirms its earlier decision that there isn't going to be a problem below.

[00:02:41] Speaker 01:
It's not my place, but I feel like it was the non-precedential holding that apparently suggested that there was

[00:02:55] Speaker 04:
Just out of curiosity, can you enlighten me?

[00:02:58] Speaker 04:
Sometimes we get one-judge decisions out of the Court of Veterans' Appeals, and other times we get multi-judge decisions out of the Court of Veterans' Appeals.

[00:03:08] Speaker 04:
And in the first paragraph of this one, he concludes that this is only worthy of a one-judge decision.

[00:03:14] Speaker 04:
And yet I find it curious, it's clear from his opinion, he doesn't take lightly refusal to follow a mandate of the court.

[00:03:24] Speaker 04:
And I guess what are the standards by which the Veterans Court decides what ought to be a one-judge versus a multi-judge decision?

[00:03:30] Speaker 04:
Because I would think the refusal, the overt explicit refusal to follow the mandate of the appellate court

[00:03:40] Speaker 04:
might be one of those grounds that is not of such mundane common general resolution that it might have warranted more than a one-judge resolution.

[00:03:48] Speaker 01:
The court below, in a case called Frankel versus Dawinsky, in the very early days of that court, decided what would distinguish between a single-judge decision and a panel decision.

[00:03:58] Speaker 04:
I knew you would have the answer for me, Mr. Carpenter.

[00:04:01] Speaker 04:
So what does that case say?

[00:04:02] Speaker 01:
It sets out, I believe, six different criteria

[00:04:11] Speaker 01:
that new law is being made, that the case is an issue of relative simplicity.

[00:04:17] Speaker 04:
And those are the kinds of- So is it relatively simple to acknowledge and expressly refuse to apply the mandate of the appellate court?

[00:04:25] Speaker 04:
Does that define- it doesn't define simple case in my mind.

[00:04:30] Speaker 01:
Well, no, Your Honor.

[00:04:31] Speaker 01:
But it does seem to me quite candidly that, unfortunately, another order from this court is going to be necessary.

[00:04:40] Speaker 01:
to affirm what you did the last time and that Mr. Andrews has been placed at another lengthy delay in getting a very clear question that this court directed the board to address.

[00:04:55] Speaker 01:
And I don't know how the board could possibly address it pursuant to this court's order if the case was affirmed.

[00:05:03] Speaker 04:
I'm going to ask you a very strange question now.

[00:05:06] Speaker 04:
But is there any way we can resolve this case entirely right now on appeal?

[00:05:10] Speaker 04:
And the reason I ask is because what our prior decision expressly said is the record in 1983 seemed far stronger for TDIU than the record did in 91 when the government granted.

[00:05:23] Speaker 04:
The government acknowledged that at the end of their brief and did not dispute the state of the record vis-a-vis those two positions.

[00:05:30] Speaker 04:
So if I am to conclude this is a pending and unadjudicated claim that was never implicitly denied,

[00:05:36] Speaker 04:
If I were to conclude that again, then

[00:05:40] Speaker 04:
Is there any reason to send this back down, or isn't the state of this record undisputed such that if TDIU were warranted in 91, it's also unequivocally under the undisputed facts of record warranted for 83?

[00:05:53] Speaker 04:
I'm not looking to make any fact findings.

[00:05:56] Speaker 04:
I would never do that as an appellate judge.

[00:05:58] Speaker 04:
But if the record is completely undisputed, and if the government itself has adjudicated the worthiness of this veteran for TDIU, is there any reason to even send it back anywhere?

[00:06:09] Speaker 01:
No, Your Honor.

[00:06:10] Speaker 04:
Maybe I should send it back for a counting of some sort.

[00:06:13] Speaker 01:
Well, it would be a direction to the lower court to direct the board to instruct the secretary to make the award based upon the undisputed facts in the record and to change the current effective date from I believe it's 1991 to 1983, or the date that that claim in the 1983 decision was made.

[00:06:35] Speaker 01:
And no, I do not see any reason.

[00:06:37] Speaker 01:
And I felt that that was the resolution.

[00:06:40] Speaker 01:
And I, frankly, was a bit blindsided below when there was requests for supplemental briefing on issues that did not seem to me to have any relevance to the disposition that was made by this court.

[00:06:53] Speaker 01:
And that this court had, in fact, made a clear legal determination both on the record in the oral argument and in this court's decision.

[00:07:05] Speaker 01:
Mr. Andrews would be grateful to receive that, just to bring this to the end.

[00:07:12] Speaker 01:
This is the third time Mr. Andrews is before this court trying to get relief.

[00:07:18] Speaker 01:
And the error in the first case was model.

[00:07:22] Speaker 01:
I did not properly plead it.

[00:07:25] Speaker 01:
I attempted to plead it before the court for the first time, the first iteration of this case.

[00:07:31] Speaker 01:
This court clarified that.

[00:07:32] Speaker 01:
That has been precedent in this court for more than a decade.

[00:07:36] Speaker 01:
We're now back here for the third time, simply trying to get the benefit of what we thought we received when we were here last time.

[00:07:46] Speaker 02:
Thank you, Your Honor.

[00:07:49] Speaker 02:
OK.

[00:07:49] Speaker 02:
Thank you, Mr. Carpenter.

[00:07:51] Speaker 02:
Ms.

[00:07:51] Speaker 02:
Rose.

[00:08:09] Speaker 03:
May I please the court?

[00:08:11] Speaker 03:
I'd like to start by bringing the discussion back.

[00:08:13] Speaker 04:
Is Mr. Carpenter wrong about one fact?

[00:08:15] Speaker 04:
Isn't this actually the fourth time this case has been before us?

[00:08:19] Speaker 03:
I believe that is correct.

[00:08:21] Speaker 04:
It's actually the fourth time.

[00:08:23] Speaker 03:
And I think that there are more than one fact.

[00:08:24] Speaker 04:
It might be wrong, but I thought maybe it's the fourth time.

[00:08:27] Speaker 04:
All the law clerks are nodding yes.

[00:08:30] Speaker 04:
But speaking of facts that Mr.

[00:08:33] Speaker 03:
Indeed, and there are many ways in which we're going to discuss errors that Mr. Andrews, through his counsel, may have created the confusion that brings us here today.

[00:08:42] Speaker 03:
And the appropriate starting point for today's discussion is the 2005 Q-Motion, which was drafted by Mr. Carpenter.

[00:08:50] Speaker 03:
It was not a pro se filing.

[00:08:52] Speaker 03:
And the reason that that's important is because this is Q. It's not a direct appeal.

[00:08:57] Speaker 04:
I thought the appropriate point of discussion would be the lower court's refusal to follow the mandate of the court.

[00:09:04] Speaker 04:
Didn't we order him to remand this case to the VA?

[00:09:09] Speaker 04:
Isn't that what the opinion was quite short?

[00:09:12] Speaker 04:
I don't think I'm misremembering it.

[00:09:14] Speaker 03:
The opinion was very short.

[00:09:15] Speaker 03:
And while it did contain a remand order,

[00:09:19] Speaker 03:
It is the obligation of the Veterans Court, like every court.

[00:09:22] Speaker 03:
And of course, this is a fundamental principle of jurisdiction.

[00:09:25] Speaker 03:
And this is something that the Supreme Court has addressed, for example, in Insurance Corporation of Ireland in 1982.

[00:09:34] Speaker 03:
But long before that, in 1884, in the Mansfield decision, that before a court can undertake an action, it must assure itself that it has jurisdiction to do so.

[00:09:48] Speaker 03:
And here, there was no jurisdiction.

[00:09:51] Speaker 03:
Again, this is a cue motion.

[00:09:54] Speaker 03:
It's a specific type of error.

[00:09:55] Speaker 03:
It's a collateral attack on a final judgment.

[00:09:58] Speaker 03:
And as such, there's a heightened pleading requirement.

[00:10:00] Speaker 04:
But the cue motion was that the agency failed to adjudicate.

[00:10:05] Speaker 04:
Isn't that correct?

[00:10:06] Speaker 03:
Failed to consider TDIU.

[00:10:08] Speaker 04:
Correct.

[00:10:09] Speaker 04:
Failed to adjudicate the TDIU claim.

[00:10:11] Speaker 04:
And we ordered the agency to do exactly that.

[00:10:17] Speaker 04:
I don't understand the confusion.

[00:10:20] Speaker 04:
We ordered them to do exactly what Mr. Carpenter alleged they failed to do because we concluded they hadn't done it.

[00:10:30] Speaker 03:
The disconnect, Your Honor, is that this court didn't have the authority to make that remand order.

[00:10:38] Speaker 03:
And I'm going to explain to you why.

[00:10:39] Speaker 03:
The reason is that the role of interpreting a claim

[00:10:45] Speaker 03:
is a fact-finding determination, and this is well-established and moody.

[00:10:49] Speaker 04:
Time out.

[00:10:49] Speaker 04:
Everybody agrees.

[00:10:50] Speaker 04:
The claim here was failed.

[00:10:53] Speaker 04:
The Q claim raised by Mr. Carpenter was that the agency failed to adjudicate the implicit TDIU claim, correct?

[00:11:01] Speaker 03:
That was recognized at every level, and the RO, starting with the RO, the response was it was implicitly denied, and that is entirely consistent with this court's lineup cases in Deschotel and Adams.

[00:11:13] Speaker 04:
OK, that's actually incorrect.

[00:11:15] Speaker 04:
This claim pending for 15 years before the first time the government alleged it was implicitly denied.

[00:11:21] Speaker 04:
This claim, this case, most of the time the government said the claim was never implicitly raised.

[00:11:28] Speaker 04:
And the court told us that we were both wrong.

[00:11:30] Speaker 04:
Please don't interrupt.

[00:11:31] Speaker 04:
Don't interrupt.

[00:11:31] Speaker 04:
And that's understandable because Robertson had not been decided by that time.

[00:11:36] Speaker 04:
And the government was consistently, as it did in Roberson,

[00:11:40] Speaker 04:
arguing for a very, very, very high level of particularity to recognize any sort of claim being made by the veteran.

[00:11:49] Speaker 04:
So I'm not faulting the government, to be clear, because it was operating under a different legal standard than we clarified in Roberson at the time it made those determinations.

[00:12:00] Speaker 04:
Because if you are going to argue to me that you recognize an implicit claim pre-Roberson

[00:12:06] Speaker 04:
I actually have the government's brief right here in front of me in Roberson, and the government explains quite clearly what it thinks must exist in the record for there to be an implicit claim that it would have any obligation to adjudicate.

[00:12:18] Speaker 04:
Would you like me to turn to that and read it to you?

[00:12:21] Speaker 03:
Your Honor, I think that we're now conflating whether or not an implicitly raised claim that has been recognized by the government as such can be implicitly denied.

[00:12:32] Speaker 03:
And those are two separate principles.

[00:12:36] Speaker 03:
An implicitly raised claim puts the VA on notice of what it must adjudicate.

[00:12:41] Speaker 03:
An implicit denial provides notice to the veteran of what has been adjudicated.

[00:12:46] Speaker 04:
And as the Veterans Court in Ingram addressed, when a veteran claims... Do you not see the absurdity if the government's position for more than a decade is you didn't raise a claim and thus there was no action for us to take?

[00:13:00] Speaker 04:
Which is soon.

[00:13:01] Speaker 04:
That was the government's position for a decade.

[00:13:03] Speaker 04:
And then they do this about face after Roberson, when we make it clear that yes, in fact, there actually was a claim here, because we make it clear what the implicit claim standard is.

[00:13:13] Speaker 04:
Now the government says, oh, boy.

[00:13:15] Speaker 04:
All right, well, maybe there was implicit claim here.

[00:13:17] Speaker 04:
But if there was, well, back then we implicitly denied it.

[00:13:20] Speaker 04:
I mean, is that not sort of the worst kind of hindsight reconstruction of what actually occurred?

[00:13:27] Speaker 04:
It sure feels that way to me.

[00:13:30] Speaker 03:
The government must, of course,

[00:13:32] Speaker 03:
recalibrated arguments in response to presidential orders from this court.

[00:13:36] Speaker 03:
But I want to get back to presidential orders of this court that determine the outcome of this case.

[00:13:43] Speaker 03:
And that is that the Veterans Court's decision should be affirmed.

[00:13:47] Speaker 03:
And that is that a cue motion that is written by counsel, as this one was, a very sophisticated counsel in VA benefits law, that there is no liberal construction of that claim.

[00:14:00] Speaker 03:
Every step of the way, the VA

[00:14:02] Speaker 03:
The VA has understood Mr. Andrews' Q allegation to be limited to, and Mr. Andrews agrees with this in his brief at page one, that the VA failed to adjudicate TDIU.

[00:14:15] Speaker 04:
And as Judge Dyke... That's right.

[00:14:17] Speaker 04:
And that's why in the last order, we remanded to the Veterans Court and ordered them to remand to the VA to adjudicate exactly that claim.

[00:14:27] Speaker 03:
But the court didn't disconnect.

[00:14:29] Speaker 03:
I really don't get what you're saying.

[00:14:31] Speaker 03:
The disconnect is, as this court held in Andrews in 2005, a Q motion, council cannot allege before the Veterans Court a new Q theory.

[00:14:45] Speaker 03:
If it hasn't been alleged before the R or the board, it is waived at the Veterans Court.

[00:14:49] Speaker 04:
But you keep telling me the Q theory that Mr. Carpenter raised was they failed to adjudicate.

[00:14:54] Speaker 04:
We agreed and said go back and adjudicate.

[00:14:56] Speaker 04:
Where is the lack of jurisdiction in that?

[00:14:59] Speaker 04:
That was the precise cue claim he raised.

[00:15:02] Speaker 04:
They failed to adjudicate this.

[00:15:04] Speaker 04:
And we agreed and said, yes, they failed to adjudicate it.

[00:15:07] Speaker 04:
Go back and adjudicate it.

[00:15:08] Speaker 03:
Actually, Your Honor, I don't think that, with all due respect, you can read the 2014 decision as stating, as explicitly as you are today, that those points.

[00:15:20] Speaker 00:
The first point is... If it is, if it does say that.

[00:15:24] Speaker 00:
It says how it was meant.

[00:15:26] Speaker 00:
then what is your response to that?

[00:15:29] Speaker 00:
Because I understand what you're saying.

[00:15:31] Speaker 00:
You're saying that Mr. Carpenter didn't raise a clear and unmistakable error argument with respect to adjudication, that the board didn't properly adjudicate the issue.

[00:15:42] Speaker 00:
But what we're saying to you now is the decision in 2014 found that the board did not adjudicate

[00:15:51] Speaker 00:
the issue and now needs to do so.

[00:15:54] Speaker 00:
Do you have a response to that?

[00:15:56] Speaker 03:
I do, Your Honor.

[00:15:57] Speaker 03:
And that is that that binding is a factual finding that this Court has not empowered to make.

[00:16:04] Speaker 03:
Congress limited this Court's ability to make factual findings.

[00:16:08] Speaker 03:
And this Court has held repeatedly, and Moody and others, that determining what claims are raised by a cue motion in other pleadings is a factual matter.

[00:16:17] Speaker 03:
So what the Court has attempted to do in 2014

[00:16:21] Speaker 00:
There's no disagreement about what Q claim was raised.

[00:16:24] Speaker 00:
What Q claim do you think was raised at the 2004 Q paper that Mr. Carpenter submitted?

[00:16:31] Speaker 00:
It's at JA 30.

[00:16:33] Speaker 00:
What do you think it is?

[00:16:34] Speaker 03:
That there was a failure to consider TDIU.

[00:16:37] Speaker 03:
But, and this also is relevant to a case that my colleague Mr. Hockey argued yesterday, Evans v. McDonald.

[00:16:48] Speaker 03:
And Mr. Andrews also states this, that there's two separate Q assertions that we're talking about here.

[00:16:54] Speaker 03:
There's a Q assertion that the RO failed to consider something, and there's a Q assertion that in not awarding TDIU, the 1983 RO got it wrong, and that that error was undebatable.

[00:17:08] Speaker 03:
And Q is a heightened standard that must be pled with specificity.

[00:17:12] Speaker 03:
And so the burden is on Mr. Andrews, as the veteran, to explain

[00:17:18] Speaker 03:
the RO in the first instance here, because this is an RO decision that's being sought revision, how the evidence of record in 1983, undebatably established that he was entitled to TDIU.

[00:17:34] Speaker 04:
Wait, if he has an unadjudicated claim,

[00:17:37] Speaker 04:
If it was never implicitly denied, why does he have to establish that the evidence of record unequivocally entitles him to that?

[00:17:46] Speaker 04:
Why isn't he entitled to an adjudication in the first instance under the preponderance of evidence standard that typically applies?

[00:17:54] Speaker 03:
Because, Your Honor, this is not a lie of appeal.

[00:17:57] Speaker 03:
And the court has established that when TDIU is not awarded,

[00:18:02] Speaker 03:
And NOAA direct appeal is sought, as here, that the proper avenue is Q. And it didn't decide that the proper avenue was Q so that it could blow open Q, which is, of course, very limited to an unmistakable

[00:18:18] Speaker 03:
clear and unmistakable error.

[00:18:20] Speaker 04:
It did so because it recognized as this court's... Q is something that has been developed by statute, right?

[00:18:27] Speaker 04:
I mean, it's a statutory section.

[00:18:28] Speaker 04:
Correct.

[00:18:29] Speaker 04:
It allows the veteran to bring to us a problem in the process below.

[00:18:36] Speaker 04:
So why can't the problem be their failure to adjudicate my claim?

[00:18:41] Speaker 03:
Because that is inconsistent with the precedent of this court

[00:18:48] Speaker 03:
including that.

[00:18:50] Speaker 04:
I thought that's what Judge Dyck's second Andrew opinion actually expressly said.

[00:18:54] Speaker 04:
If you want to challenge, because you argued, you all argued by the way, that this case was still arguably pending and unadjudicated and we had no jurisdiction over it for that reason.

[00:19:06] Speaker 04:
And what Judge Dyck said is, no, you can go back and file a Q claim directed to just this, their failure to adjudicate.

[00:19:13] Speaker 04:
And then we would have jurisdiction over it.

[00:19:16] Speaker 04:
So he sort of acquiesced in the government's argument that we didn't have jurisdiction to decide that issue right then.

[00:19:21] Speaker 04:
But the proper vehicle, so I mean I have to feel a little sorry for Mr. Carpenter because it seems to me he did exactly at every stage of this process what we told him to do to properly put this issue before the court.

[00:19:33] Speaker 04:
And now your argument is that still didn't properly put the issue before the court.

[00:19:38] Speaker 03:
That's right.

[00:19:38] Speaker 03:
And the reason is that

[00:19:40] Speaker 03:
as soon as Mr. Andrews received his 2006 R.O.

[00:19:44] Speaker 03:
decision informing him that the TDIU claim had been implicitly denied in the 1983 decision, which is entirely consistent with this court's implicit denial precedent, including in Adams, which I believe it was Adams that explicitly

[00:20:02] Speaker 03:
favorably spoke of the Veterans Court's decision in Ingram that lays out very clearly why a veteran who seeks a 100% or a maximum possible benefit or believes he's raised a claim for TDIU and receives a decision less than 100% is on notice that he did not get TDIU, because TDIU is, of course, 100% rating.

[00:20:27] Speaker 03:
At that point in 2006, when he received the R.O.'

[00:20:30] Speaker 03:
's decision that said

[00:20:33] Speaker 03:
You said your claim is that there was no adjudication.

[00:20:36] Speaker 03:
Our response to your cue motion is that this claim was implicitly denied.

[00:20:41] Speaker 03:
At that point, it was incumbent upon Mr. Andrews, if he wanted to challenge the merits determination of the denial of his TDIU claim, to file a new cue claim, a specific cue claim, because as this court has held in Andre,

[00:20:55] Speaker 03:
When we're talking about an Auro's decision.

[00:20:57] Speaker 04:
Isn't the implicit deniable a creature of judicial creation?

[00:21:00] Speaker 04:
I mean, it doesn't exist in a statute or in the regs by the secretary.

[00:21:04] Speaker 04:
That's correct.

[00:21:05] Speaker 04:
So as such, wouldn't it be perfectly reasonable for us to say, when the government argues, and this would be quite a narrow holding, and I'm not sure it should be this narrow, but wouldn't it be perfectly reasonable for us to say, when the government has argued for a long period of time,

[00:21:22] Speaker 04:
that there was no claim and thus nothing for us to have had to take action on, that they are thereby not allowed to rely on the judicially created implicit denial rule thereafter to say, OK, OK, if it turns out we were wrong about the fact that there was a claim, well, then we implicitly denied it.

[00:21:40] Speaker 04:
Wouldn't it, at a minimum, be appropriate, since it is a creation of judicial manufacture for that limit to be placed upon that rule of judicial creation?

[00:21:52] Speaker 03:
I believe the reason it wouldn't be appropriate is because this court's presidential holdings would preclude such an outcome.

[00:22:02] Speaker 03:
Which one?

[00:22:03] Speaker 03:
In Andre, and this is important because collateral estoppel is a benefit to a veteran.

[00:22:10] Speaker 03:
In most cases, a civil litigant doesn't have the right to reopen a final.

[00:22:15] Speaker 04:
But which precedent?

[00:22:16] Speaker 04:
No, you said it would be contrary.

[00:22:17] Speaker 04:
The rule I just articulated would be contrary to precedent of this court.

[00:22:20] Speaker 04:
What precedent?

[00:22:22] Speaker 04:
would that will be contrary to?

[00:22:23] Speaker 03:
It would be contrary to Roberson, because Roberson says that a TDIU claim that is not expressly adjudicated is not properly appealed as an unadjudicated claim, but is properly appealed through Q. Excuse me, is properly raised through Q. Q, of course, is not an appeal.

[00:22:50] Speaker 03:
And the reason that that's important, Your Honor, is that Q, by its very nature, assumes that there has been a final decision.

[00:22:58] Speaker 03:
So you can't challenge the VA's adjudication of something through Q unless we first start from the point, as this court has explained, that Q is a collateral attack on a final judgment.

[00:23:14] Speaker 03:
So that assumes that there has been a judgment.

[00:23:17] Speaker 03:
And when you get to that framework,

[00:23:19] Speaker 03:
combined with the court's holding that the failure to raise a Q theory before the board or the RO is fatal to the attempt to raise that before the Veterans Court and that the Veterans Court in fact does not have jurisdiction over such claims.

[00:23:38] Speaker 03:
The only issue here is why Mr. Andrews, who is represented through very sophisticated counsel, hasn't filed

[00:23:47] Speaker 03:
The Q claim he now wants adjudicated, which is about the merits of his TAU denial.

[00:23:53] Speaker 04:
Can I ask you the same question that I asked Mr. Carpenter near the end, which is how, if at all possible, can we just make this case over?

[00:24:02] Speaker 03:
You can affirm, and Mr. Andrews... Okay, but that's not happening.

[00:24:04] Speaker 04:
So how, if at all possible, can we make this case over?

[00:24:07] Speaker 04:
And what I mean is, the government didn't dispute the passage in the prior decision which says the record in 83 was unequivocally stronger

[00:24:18] Speaker 04:
for this veteran of unemployability than the record in 91 the government granted.

[00:24:22] Speaker 04:
The government never explicitly at any point denied TDIU and when they actually considered it for the first time in 1991 they granted it and that record was weaker than the record they had before in 83.

[00:24:35] Speaker 04:
So the government didn't dispute that on appeal.

[00:24:38] Speaker 04:
It actually raised it and quoted the whole thing at the end of your brief but never disputed any of that.

[00:24:43] Speaker 04:
Never once said

[00:24:44] Speaker 04:
That's not true.

[00:24:45] Speaker 04:
There are still factual issues in play.

[00:24:48] Speaker 04:
You acquiesced in it.

[00:24:49] Speaker 04:
So can I accept that as a government's admission?

[00:24:53] Speaker 03:
Respectfully, Honor, you may not.

[00:24:54] Speaker 03:
The reason is that we have raised that it would be difficult, if not impossible, for... No, excuse me.

[00:25:01] Speaker 03:
Let me start over.

[00:25:04] Speaker 03:
It is an open question whether the 1983 record undebatably establishes

[00:25:11] Speaker 04:
yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah

[00:25:37] Speaker 03:
I don't think that is fair, and I think in part you can look back to our 2003 pleadings, specifically footnote three on page eight, where we talk about evidence that existed in the record that may have contributed to the RO's consideration about whether or not employability was an issue, and that included

[00:25:57] Speaker 03:
a back condition that Mr. Andrews was a pre-existing condition, and he has not been awarded service connection for it.

[00:26:07] Speaker 03:
He sought service connection for it, and that was denied prior to his 1983 claim.

[00:26:13] Speaker 03:
And in addition, there is evidence in the 1983 record of alcohol and substance abuse that was not at issue in 1994.

[00:26:25] Speaker 03:
And while these documents

[00:26:28] Speaker 03:
frankly aren't relevant or material to the appeal that is on a narrow issue before us, whether or not the Veterans Court correctly held that it does not have jurisdiction to entertain a Q motion that was not raised by counsel to the board or the RO.

[00:26:45] Speaker 03:
But these factual matters are out there.

[00:26:48] Speaker 03:
There is dispute.

[00:26:49] Speaker 03:
And of course, if

[00:26:51] Speaker 03:
alcohol and substance abuse is not secondary to a service-connected condition, and here there's been no finding that it is, then that cannot contribute to the basis of compensation.

[00:27:04] Speaker 03:
And that's under 38 USC 1110, and also this court's decision in Allen.

[00:27:11] Speaker 03:
And the question about these facts, this mix of facts, that is for the VA to decide.

[00:27:20] Speaker 03:
And respectfully, Mr. Andrews has never put that merits determination at issue in a cue motion.

[00:27:31] Speaker 03:
And once he does that, that will be decided.

[00:27:35] Speaker 03:
At that point, the veteran, the VA, in its proper role as the fact finder, can evaluate all of the evidence.

[00:27:44] Speaker 03:
And of course, it has to be evidence that was contained in the 1983 record.

[00:27:51] Speaker 03:
make a determination as to whether that 1983 record undebatably establishes TDIU.

[00:27:56] Speaker 03:
And I'm not saying he may not be able to do that.

[00:27:58] Speaker 03:
He may.

[00:27:59] Speaker 03:
But he needs to follow the proper vehicle, as outlined by this court in Roberson and Andre.

[00:28:05] Speaker 04:
But if you have an unadjudicated claim, why does he have to show undebatably?

[00:28:10] Speaker 04:
That's what I don't understand.

[00:28:11] Speaker 04:
If we have concluded that the claim was never adjudicated, why in the world are we raising the bar on the veteran in terms of the standard of proof he has to meet?

[00:28:21] Speaker 03:
Because a non-expressly adjudicated TDIU claim can only be raised through Q, and Q is a collateral attack of a final judgment.

[00:28:33] Speaker 03:
You cannot collaterally attack a final judgment without a final judgment.

[00:28:40] Speaker 02:
OK.

[00:28:41] Speaker 02:
Thank you, Ms.

[00:28:41] Speaker 02:
Rhodes.

[00:28:42] Speaker 03:
Thank you, Your Honors.

[00:28:55] Speaker 01:
Your Honors, I believe we have just witnessed why the doctrine of law of the case is necessary.

[00:29:02] Speaker 01:
The government did not ask for rehearing of the 2014 decision.

[00:29:08] Speaker 01:
It didn't ask for reconsideration of the determination that was made by this court.

[00:29:15] Speaker 01:
We've just spent 20 minutes relitigating the issue.

[00:29:21] Speaker 01:
And part of the problem here is that the government

[00:29:24] Speaker 01:
since this court issued the Roberson decision, has done everything possible to create impediments to the implementation of that decision.

[00:29:34] Speaker 01:
And this panel, I urge to write a precedential opinion that clarifies the holding in Roberson.

[00:29:42] Speaker 01:
As I understand the holding in Roberson, as I believe Judge Moore articulated to the government, the holding in Roberson is that if there is a pending claim,

[00:29:53] Speaker 01:
and there is found to be a pending claim, then the veteran is entitled to have that pending claim adjudicated.

[00:30:02] Speaker 01:
The VA, and this case is a perfect example of it, has used the implicit denial rule to undermine their holding in Roberson, to use the implicit denial rule as a device because they read, I believe very narrowly, the decision in Roberson to mean that only

[00:30:23] Speaker 01:
Can you pursue the theory in Roberson based upon an allegation of clear and unmistakable error?

[00:30:30] Speaker 01:
And therefore, the burden is higher.

[00:30:33] Speaker 01:
I do not believe that that is the intent of Roberson.

[00:30:36] Speaker 01:
In the case that was referred to by the government that was argued yesterday in Evans, the government put forth an argument that this court somehow overruled Roberson in Cook.

[00:30:49] Speaker 01:
I do not believe that this court, when it went in Bonk, overruled

[00:30:53] Speaker 01:
this court's decision in Roberson, and mayhaps this court needs to go in bonk to clarify the difference between the holding in Roberson and the difference in the holding in Heer, which is what in fact was overruled in Cook.

[00:31:09] Speaker 01:
I urge this court to give Mr. Andrews resolution.

[00:31:15] Speaker 01:
You have seen the hurdles that the government wants to impose.

[00:31:20] Speaker 04:
I was hoping that if the government were

[00:31:25] Speaker 04:
lose on all of the legal points that it might acquiesce in the factual one, but we can't decide facts in the first instance.

[00:31:31] Speaker 04:
And if she's going to stand up here and dispute what the record in 83 would have established or not, how can we do that?

[00:31:38] Speaker 04:
If I say it's an unadjudicated claim, I don't get to adjudicate it in the first instance.

[00:31:42] Speaker 01:
Of course you don't, John.

[00:31:44] Speaker 01:
But that then reinstates this court's order from 2014.

[00:31:50] Speaker 04:
which directs the Veterans Court to direct the board to adjudicate that pending claim.

[00:32:09] Speaker 04:
you know, maybe say it's undisputed, that sort of thing.

[00:32:13] Speaker 04:
But it doesn't seem that they're willing to do that.

[00:32:16] Speaker 01:
Well, in more than a decade.

[00:32:17] Speaker 04:
So the most you seem to be able to get here, if you get anything at all, is to go back and have the VA adjudicate it.

[00:32:22] Speaker 01:
Yes, Your Honor, because I believe that's what we're entitled to under Roberson.

[00:32:26] Speaker 01:
But as I think the argument here today has demonstrated, there is a clear misunderstanding on the part of the government, and to this extent, on the part of Judge Cassel and the lower court,

[00:32:38] Speaker 01:
as to the meaning of this court's decision in Roberson and that is what benefit is derived the veteran who is in fact able to demonstrate that the issue was presented and not adjudicated.

[00:32:54] Speaker 01:
It was reasonably raised either by the veteran or by a liberal reading of the evidence and that determination was made I believe as a matter of law

[00:33:06] Speaker 01:
that Mr. Roberson raised the issue.

[00:33:10] Speaker 01:
That legal determination was resolved by this court last time.

[00:33:13] Speaker 01:
What this court needs to do this time is to clarify the difference between the holding in Roberson and the judicially created holding of implicit denial.

[00:33:23] Speaker 01:
Let's search for other questions from the court.

[00:33:25] Speaker 01:
I appreciate your attention.

[00:33:26] Speaker 02:
Thank you.

[00:33:26] Speaker 02:
Thank you, Mr. Carpenter.

[00:33:28] Speaker 02:
Thank you, Ms.

[00:33:28] Speaker 02:
Rose.

[00:33:29] Speaker 02:
The case is taken under submission.

[00:33:31] Speaker 02:
That concludes the argued cases for this morning.

[00:33:36] Speaker ?:
All rise.