[00:00:09] Speaker 02: We will hear argument next in number 157055, Evans against McDonald. [00:00:33] Speaker 02: Ms. [00:00:33] Speaker 02: Booth. [00:00:34] Speaker 01: Thank you, your honor. [00:00:35] Speaker 01: If it please the court, my name is Sandra Booth. [00:00:37] Speaker 01: I'm appearing on behalf of the appellant, Ron Evans. [00:00:40] Speaker 01: Mr. Evans presents a very narrow legal issue today, but it's one which is of great interest in the veterans community. [00:00:47] Speaker 01: And that is under the Russell's CUE test, the third prong, which requires a manifest change in the outcome. [00:00:55] Speaker 01: What is that manifest change where the error under the first two prongs of the Russell test [00:01:01] Speaker 01: was simply the failure of the agency to recognize that the claim existed with the consequence that the agency did not make a merits decision. [00:01:10] Speaker 04: This is based on a theory that the VA, RO, did not make an adjudication on the informal TDIU claim back in 1988. [00:01:21] Speaker 04: Is that right? [00:01:23] Speaker 01: It's correct, Your Honor. [00:01:25] Speaker 01: Under the court's jurisprudence in Roberson and certainly by Schodl, [00:01:31] Speaker 01: There was an implicit denial. [00:01:33] Speaker 04: That's what I'm trying to figure out. [00:01:35] Speaker 04: If your facts with Mr. Evans line up with the Roberson case, if here there was a ruling by the board that there was implicit denial, which the Veterans Court affirmed, and you're not challenging, or I'm not sure you can challenge it. [00:01:55] Speaker 04: So with an implicit denial, that means that necessarily [00:02:01] Speaker 04: There was a finding that the VA did do a ruling on the merits in denying the TDIU claim in 1988. [00:02:09] Speaker 01: I would disagree with that, Your Honor. [00:02:13] Speaker 01: The regional office, the rating decision, which denied CUE in the first instance, made an express finding that there was no TDIU raised. [00:02:25] Speaker 01: That finding was, and since it wasn't raised, therefore, [00:02:29] Speaker 01: There was no error, clear and unmistakable or otherwise. [00:02:33] Speaker 01: That finding was reversed by the Board of Veterans' Appeals in 2011. [00:02:37] Speaker 01: The board found that there was a TDIU claim presented on the record. [00:02:45] Speaker 01: So at that point, there is no merits decision on the record. [00:02:49] Speaker 01: plainly shows there was never a merits decision made. [00:02:53] Speaker 04: I guess I'm confused. [00:02:54] Speaker 04: What did the board mean then when the board went on to say that not only was there an informal TDIU claim presented in 1988, but that in fact the RO acted on it through an implicit denial. [00:03:09] Speaker 04: What does implicit denial mean? [00:03:12] Speaker 04: Is that somehow something different under the law than an express denial? [00:03:17] Speaker 01: Oh, yes. [00:03:18] Speaker 01: I believe it is, Your Honor. [00:03:19] Speaker 04: Where in our case law have we made that distinction between an implicit denial on the merits versus an explicit denial on the merits? [00:03:30] Speaker 01: Well, actually, I think in Roberson, the court held that the agency error was not a denial of TDIU, but rather the agency's failure to address the claim, which is exactly what happened here. [00:03:44] Speaker 04: Are you saying that when the agency implicitly denies a claim, it has not adjudicated the claim? [00:03:54] Speaker 01: Correct. [00:03:55] Speaker 01: Correct, it has not. [00:03:56] Speaker 04: Then what is the meaning of an implicit denial if it's not an adjudication? [00:04:03] Speaker 01: The court has stated in several cases, most recently I think in the January decision in Coburn, that implicit denial is essentially a notice provision. [00:04:12] Speaker 01: It advances the interest of finality. [00:04:17] Speaker 01: The veteran is implicitly notified that for whatever reason his benefits have been disallowed. [00:04:28] Speaker 01: And therefore finality attaches. [00:04:30] Speaker 01: Under Roberson and also Andrews and DeShuddle, although they don't expressly get to this issue, which is I think why we're here today, [00:04:42] Speaker 01: The court each time focuses on the failure to address the claim. [00:04:48] Speaker 01: Andrews says that it's the failure to address the claim, which is properly challenged by CUE de Schotel, says that the implicit denial of the claim, where the claim has been implicitly denied, if the veteran believes that the agency improperly failed to address its claim. [00:05:12] Speaker 01: which is what happened here, then his remedy is to either file a direct appeal, which Mr. Evans did not, or to file a request for CUE in an attempt to reopen. [00:05:24] Speaker 04: Let me ask this. [00:05:25] Speaker 04: If we were to conclude that as a legal matter, an implicit denial is the legal equivalent of an express denial, then what would be left of your appeal? [00:05:48] Speaker 01: I think there would be very little left of the appeal at that point. [00:05:53] Speaker 01: But in order to reach that conclusion, I believe you would have to overrule Roberson. [00:06:00] Speaker 03: Ms. [00:06:01] Speaker 03: Booth, you haven't, though, challenged. [00:06:03] Speaker 03: I mean, do you dispute that an implicit denial took place here? [00:06:11] Speaker 01: No, Your Honor. [00:06:11] Speaker 01: We agree that an implicit denial arose as a matter of law. [00:06:15] Speaker 03: So you're asking us, though, to say that an implicit denial, in the words of what Judge Chen was saying, that an implicit denial is not really a denial. [00:06:26] Speaker 03: And you haven't made that argument in the brief anywhere. [00:06:29] Speaker 01: Well, the implicit denial arises as a matter of law, certainly under De Schotel. [00:06:37] Speaker 01: That's our argument. [00:06:39] Speaker 01: We're not disputing the finality attached under the implicit denial theory. [00:06:44] Speaker 01: That's correct. [00:06:46] Speaker 01: But the argument is that where the agency never reaches the merits because the agency didn't realize the claim was pending. [00:06:54] Speaker 03: But the agency is deemed to have realized it was pending via the fact of an implicit denial. [00:07:02] Speaker 03: I mean, that necessarily takes care of it, doesn't it? [00:07:05] Speaker 01: No, I don't believe so, Your Honor. [00:07:07] Speaker 01: I think the implicit denial arises by operation of law. [00:07:12] Speaker 01: not because the agency has clearly articulated or even declared. [00:07:18] Speaker 03: But it can arise. [00:07:19] Speaker 03: Assume that's the case. [00:07:20] Speaker 03: It does arise by operation of law. [00:07:22] Speaker 03: Still, it's there as a denial, which means, I think, that the claim has been addressed and denied. [00:07:30] Speaker 01: Well, it's been addressed, and the denial arises as a matter of law. [00:07:34] Speaker 01: The CUE then, one has to proceed down through the three prongs of the Russell test. [00:07:42] Speaker 01: you know, what's the error? [00:07:44] Speaker 01: And the error here is the VA's failure per Roberson to recognize the claim, the failure to develop the claim to its optimum as Roberson states, which is the clear and unmistakable error in the case. [00:08:05] Speaker 02: So I was focusing, I guess, a little bit on the Veterans Court opinion on page 6, which says, [00:08:11] Speaker 02: The board simply determined that the appellant's argument that the RO committed CUE in failing to adjudicate the issue of TDIU must fail as TDIU was indeed considered and implicitly denied. [00:08:27] Speaker 02: That sounds to me, in the April 1988 rating decision, that sounds to me like something more than implicit denial for finality purposes that the [00:08:41] Speaker 02: board, the Veterans Court is saying, the board concluded that it was actually considered and denied without discussion, but considered rather than some fictional, legal, it must be deemed denied even without consideration. [00:09:06] Speaker 02: Which leaves one wondering whether there's a Roberson issue [00:09:11] Speaker 02: here at all, or Roberson, is that how it's said? [00:09:13] Speaker 02: Roberson, sorry. [00:09:16] Speaker 01: I don't think the court, I don't think that once it was determined that the claim was presented on the record and the regional office to this day denies that it was, it's a stretch to then conclude that a merits decision was made [00:09:41] Speaker 01: where the regional office to this day does not know that there was a claim. [00:09:44] Speaker 02: But how do we say that as opposed to, I mean, maybe the Veterans Court, which has much broader reviewing authority than we do in particular on factual determinations and applications of law to fact, which we can't do in a case like this not involving constitutional claim. [00:10:00] Speaker 02: How do we question what the RO, whether the board was wrong in characterizing what the RO did in April of 1988? [00:10:11] Speaker 01: Well, because I think it comes back to what the Robertson case requires. [00:10:17] Speaker 01: The implicit denial, I don't think the agency can be said to secretly in its mind be making a denial and that the veteran should be, that the implicit denial and notice provisions give the veteran notice that his claim has been denied just because the agency doesn't recognize, doesn't recognize it, does not even know there is a claim there. [00:10:42] Speaker 01: Once there was a determination by the board that there was in fact a claim made, then I think the board's jurisdiction at that point stopped because there is no adjudication in the record. [00:10:57] Speaker 01: There is no trace of an adjudication on the merits in the record. [00:11:01] Speaker 01: I believe the board could only have remanded the case back to the regional office for the purpose of making that initial adjudication. [00:11:12] Speaker 01: on the merits. [00:11:17] Speaker 02: You are into your rebuttal. [00:11:19] Speaker 02: So if you want to save your time, I think you reserve five minutes. [00:11:24] Speaker 02: Yes. [00:11:25] Speaker 02: Thank you. [00:11:33] Speaker 00: May I please support? [00:11:38] Speaker 00: We think the Veterans Court [00:11:40] Speaker 00: fully explored the issue that was presented in this case, as did the board, and construed the claim of Q as broadly as it could given the attempted. [00:11:57] Speaker 04: Could we get to the question of implicit denial? [00:11:59] Speaker 04: Sure. [00:12:00] Speaker 04: And just curious, does it encompass perhaps more than one thing? [00:12:06] Speaker 04: And what I mean by that is an implicit denial could be [00:12:10] Speaker 04: a situation where the agency actually does consider and evaluate a particular claim, but then denies it on the merits. [00:12:20] Speaker 04: It just does it implicitly, not expressly. [00:12:23] Speaker 04: That could be category one. [00:12:25] Speaker 04: And then maybe category two is some kind of deemed denial as a matter of law, where almost as a matter of legal fiction, the agency actually considered everything [00:12:39] Speaker 04: and denied it, but it didn't actually do any evaluation. [00:12:44] Speaker 04: What I'm wondering is, how do you understand what is encompassed by the term implicit denial? [00:12:53] Speaker 00: I think both of those examples could be encompassed within the definition of implicit denial. [00:13:00] Speaker 04: If you say that, then how do we know what happened here? [00:13:04] Speaker 00: So the idea behind implicit denial, as the court explained in Deschotel [00:13:09] Speaker 00: and it's progeny, if you will, it's a notice provision. [00:13:14] Speaker 00: It came about in response to the pending claim theory, where claimants would come in years after a claim was denied and suggest that a claim was made to the regional office that was never adjudicated. [00:13:30] Speaker 00: So then we got to the situation where, in some of the decisions by this court, there were remands [00:13:38] Speaker 00: holding that the claim was pending. [00:13:40] Speaker 00: Subsequent to that pending claim theory, we argued, no, although there may have been a claim which was impliedly raised or maybe even expressly raised, but when you read the decision, it's clear that although the regional office didn't clearly reject it or expressly reject it, any reasonable person reading the decision would come to the conclusion that it was rejected. [00:14:06] Speaker 00: the example being an individual who was seeking 100% rating for something and is awarded a 30% rating. [00:14:14] Speaker 00: So that person's clearly, I noticed that their argument about why they deserved 100% was considered and rejected because they only received 30%. [00:14:22] Speaker 00: So the two sort of evolved together in the implicit denial. [00:14:26] Speaker 00: So Judge Chen, both of your examples of where the record, when you look back at it, as was the case here, when [00:14:35] Speaker 00: board and court looked back at what the regional office did in 1988, especially in the context of the mental disability in which the ratings for mental disabilities somewhat mirror ratings for TDIU. [00:14:49] Speaker 00: The court said that anybody who was expecting extra scheduler relief in the form of a 100% extra scheduler award for the disability that he was seeking, but who only received a 30% rating when the very scheduler rating itself [00:15:03] Speaker 00: is premised on the same concept in terms of the mental disability of ability to function in the world and workplace and whatnot, which is distinguished from other scheduler ratings, which more physical elements are determined. [00:15:17] Speaker 00: The rating schedule is determined by flexibility and this kind of things. [00:15:21] Speaker 00: With the mental though, it is about ability to function, which is very similar to the same kinds of standards that are used for the TDIU awards. [00:15:30] Speaker 00: So in this case, [00:15:31] Speaker 00: We think the Board and Veterans Court properly noted, as they did in the evidence, that it was reasonable for Mr. Evans to understand in 1988 that his request for extra schedule or relief in the form of 100% rating would have been denied or was denied, in fact was denied, implicitly in the decision below. [00:15:50] Speaker 04: So on this record, the findings by the Veterans Court and the Board of Veterans Appeals was that the TDIU [00:16:01] Speaker 04: possibility claim was in fact considered and evaluated and it was denied but it was just denied implicitly. [00:16:10] Speaker 00: Is that? [00:16:12] Speaker 00: That's I think part one of what the board and Veterans Court did. [00:16:16] Speaker 00: I think part two was that they went ahead and actually looked at the evidence and said in any event in this case the evidence doesn't show total disability based upon individual employability. [00:16:27] Speaker 00: That's the [00:16:27] Speaker 04: That was the next part, and that's the part where the Veterans Court in Banque was debating whether Mr. Evans was in fact, it was undebatable that he was in fact unemployable back in 1980. [00:16:46] Speaker 04: And also a little bit of what is the proper legal inquiry. [00:16:51] Speaker 04: But that would be based on a prior denial of a TDIU, not a non-adjudication of the TDIU. [00:17:02] Speaker 00: Yeah, in order to get the Q, you have to have a Q of a finally decided denial, yes. [00:17:08] Speaker 00: So it makes sense to do that second. [00:17:10] Speaker 04: Right, but just so I understand, Roberson. [00:17:14] Speaker 00: Roberson is a pleading? [00:17:17] Speaker 00: Roberson, I call it Roberson. [00:17:19] Speaker 04: All right. [00:17:20] Speaker 04: For now, we'll call it Roberson. [00:17:22] Speaker 04: In five minutes, I'll call it Roberson. [00:17:24] Speaker 00: There are plenty of cases in the best case. [00:17:26] Speaker 04: For now, Roberson. [00:17:28] Speaker 04: That's a Q claim case, right? [00:17:32] Speaker 04: Where it was found that the VA never adjudicated the TDIU. [00:17:37] Speaker 04: And then under a Q claim theory, this court sent the case back to the VA to finally evaluate the never before [00:17:49] Speaker 04: adjudicated TDIU, is that right? [00:17:51] Speaker 00: So Roberson is about pleading. [00:17:54] Speaker 00: So in Roberson, which was a Q claim, the idea is that not only does the Hodge fully develop claim argument theory that VA is required to do, and in Hodge, it was expanded to articulating what the pro se plaintiff is trying to argue what the claim is. [00:18:19] Speaker 00: Subsequent, then, to Hodge-Robertson, the corrections court held, well, that liberal construction of the pleadings doesn't apply to the actual record pleadings that are at issue in a queue proceeding. [00:18:33] Speaker 00: And this court said no. [00:18:34] Speaker 00: This court said not only, this court said you need to look back at those records to see if, liberally construed, there was such a claim raised. [00:18:42] Speaker 00: And if there was, then you need to consider it. [00:18:45] Speaker 00: So it's a little murky, but the idea is, [00:18:49] Speaker 00: Roberson doesn't mean a failure to consider equals Q. Roberson means that in reviewing a case for Q, the board and RO need to look and liberally construe not only the pleading for Q for the pro se plaintiff, but the argument that he was trying to make before. [00:19:12] Speaker 00: Did he actually make a claim for a total disability in 1988? [00:19:18] Speaker 00: But that doesn't answer the overall Q question because as this court said in Smairaj and in Andrews and other cases, Roberson didn't change this court's and the statutory requirement as evidenced in this court's decision in Cook where they thoroughly analyzed what's required for Q. That Roberson didn't change the requirements for Q in that there has to be an outcome determinant of error based upon the evidence of record at the time. [00:19:46] Speaker 00: If you look back at this case. [00:19:49] Speaker 02: Can I just ask that the Veterans Court had a part A and a part B and part A says, we don't see any problem. [00:20:01] Speaker 02: You're just going to correct everything that I say that's wrong. [00:20:03] Speaker 02: That we don't see any problem with the boards having said the TDIU claim was in fact considered and denied. [00:20:13] Speaker 02: And then part B says, what? [00:20:16] Speaker 02: Even if it hadn't been, there's no clear and unmistakable error without some basis for thinking that down the road benefits might result as opposed to clear and unmistakable error being satisfied when a claim was not a TDIU claim was not addressed. [00:20:41] Speaker 02: You have to address it. [00:20:42] Speaker 02: Is that second part? [00:20:45] Speaker 02: immaterial to the outcome here if one accepts the first part? [00:20:50] Speaker 00: I don't know if I can answer the question, Your Honor, other than to try to articulate how I understand what the Veterans Court did here, which I think is my attempt to try to respond. [00:21:01] Speaker 00: So the Veterans Court was faced with, I think, a characterization of a cue error, which was somewhat limited in the sense that the argument seems to have been [00:21:15] Speaker 00: It's enough to deserve an award of Q if I can demonstrate that Roberson wasn't followed. [00:21:25] Speaker 00: In that, I can demonstrate that the regional office should have considered TDIU. [00:21:30] Speaker 00: That seemed to have been at various stages an argument that was being raised to try to say that if I can establish a Roberson error, I have ipso facto [00:21:42] Speaker 00: satisfied my cue requirement. [00:21:44] Speaker 00: The problem with that is a Roberson error is a pleading error. [00:21:48] Speaker 02: Let me try to understand this without referring to a case. [00:21:54] Speaker 02: I understood that the error alleged was failure to consider a TDIU claim. [00:22:00] Speaker 02: And I understood the first part of the Veterans Court decision to say, [00:22:06] Speaker 02: We think the board got it right in saying there was no such failure. [00:22:10] Speaker 02: It was considered and it was denied. [00:22:14] Speaker 02: Why is there a second part of the decision? [00:22:16] Speaker 00: Because arguably... Can I just interject? [00:22:21] Speaker 04: My theory on why they kept going is that they said now that we are satisfied that the board is correct, that the RO in fact did deny the TDIU claim, [00:22:37] Speaker 04: We still think there could be something left in this appeal that says, is there a cue claim for here on the denial, that earlier denial of the TDIU by the RO in 1988? [00:22:54] Speaker 04: And now we've got to figure out what's the standard for that. [00:22:57] Speaker 04: OK, tell me why I'm wrong. [00:22:59] Speaker 00: I don't think you are, but I would add one caveat. [00:23:01] Speaker 00: The board did the same thing. [00:23:03] Speaker 00: I think the board reached the same conclusion. [00:23:06] Speaker 00: Look, accepting your idea, your what I'll call cabin view of Q, which we don't believe a Roberson error by itself could ever constitute Q, because it divorces the outcome determinative aspect from the discussion. [00:23:22] Speaker 00: If you have an example where the board did not address a TDIU claim that was raised, and we don't have, unlike this case, an analysis in which [00:23:35] Speaker 00: or a record upon which we could say, no, they actually did implicitly deny it. [00:23:40] Speaker 00: That should get you Q, because you haven't necessarily changed the legal relationship between the parties. [00:23:47] Speaker 02: That is how I understand what I understand the part B, starting on page six, to hold. [00:23:54] Speaker 02: And I think this gets back to what we started with here. [00:23:57] Speaker 02: Does that have any effect on this case if one accepts part A that says, [00:24:03] Speaker 02: The error alleged was failure to consider unemployability. [00:24:08] Speaker 02: There was no such failure. [00:24:10] Speaker 02: It was considered. [00:24:12] Speaker 02: I would agree that... Something that, as I understand it, I think you agree, we can't disagree with Part A because that... Because it's not really right. [00:24:22] Speaker 02: Well, it's not legal. [00:24:23] Speaker 00: Yeah. [00:24:25] Speaker 02: Is that right or is that wrong? [00:24:26] Speaker 00: Well, yeah. [00:24:27] Speaker 00: Had there been... [00:24:29] Speaker 00: I don't think any issue has been presented to this court about Part A upon which this court could opine. [00:24:36] Speaker 00: There are questions that we were talking about, about implicit denial, which I think are all correct. [00:24:44] Speaker 00: I think the analysis was correct here by both the board and the Veterans Court with respect to how implicit denial, especially in this case, would have identified the fact that, no, your argument that something wasn't considered was actually considered. [00:24:57] Speaker 04: Okay, but to finish off Judge Taranto's point, then if that is true about Part A, then there's nothing left for us to do with respect to anything that was said on Part B. I don't think you need to go there, as we indicate in our papers. [00:25:14] Speaker 04: If you do, we have a... It would be dicta. [00:25:17] Speaker 04: It would be recreational. [00:25:18] Speaker 04: It would be extracurricular. [00:25:23] Speaker 00: Yes, although it would clarify the point we would like made, which is unless the court were to find that the Q argument was broader and that that was what was being addressed, yes, you would need to go further. [00:25:42] Speaker 00: If you hold the argument to what the Q argument was, which was rejected in part A, that should be the end of the story. [00:25:51] Speaker 00: We don't think that's a valid Q argument. [00:25:53] Speaker 00: We would love the court to say it's not a valid cue argument, because you have to consider outcome determinative error. [00:26:01] Speaker 00: But we can't say anything here. [00:26:04] Speaker 00: We, the Federal Circuit, can't say anything here, because the board and the Veterans Court have already covered that base as well and denied it. [00:26:11] Speaker 03: I realize the point about not having to get to the second point where the board said, and the court affirmed the board, [00:26:21] Speaker 03: that even if you look at the evidence below, there was not enough evidence to establish clear and unmistakable error. [00:26:30] Speaker 03: Now, Ms. [00:26:30] Speaker 03: Booth said the board didn't have jurisdiction to get to that. [00:26:33] Speaker 03: She said that in a brief, I think. [00:26:35] Speaker 03: What's your argument to that? [00:26:36] Speaker 00: I've read the decisions below. [00:26:38] Speaker 00: I think this all goes to how do you interpret the Q claim that was being proffered. [00:26:46] Speaker 00: Starting with the regional office, the regional office [00:26:51] Speaker 00: bulk of the limited analysis that's contained in that decision appears to focus on the Part A. But the last line, which talks about the evidence doesn't establish anything, that there should be no change in benefits, supports a Part B conclusion. [00:27:06] Speaker 00: So an argument can be made that the board, the RO itself recognized that perhaps, although not required under Andrews, giving a liberal construction to the pleading, said, okay, here we're going to look at the more narrowly focused Q claim, [00:27:21] Speaker 00: the relevant analysis should be, can this individual establish that he was entitled to TDIU at the time? [00:27:28] Speaker 00: And so you could read the regional office decision to hold that. [00:27:32] Speaker 00: Clearly, you can read the board decision to hold that, because they go in and specifically do it, and then the Veterans Court. [00:27:37] Speaker 00: So with that, then no, I don't believe there would be any need for a remand. [00:27:41] Speaker 03: I believe that what was done here... But she said the board didn't have jurisdiction. [00:27:45] Speaker 00: They would have had jurisdiction, because they would have been... You could look at it two different ways. [00:27:50] Speaker 00: Either they interpreted her Q claim to include part B, or you could argue under 5109A or the 3.105 regulation, which provides the secretary with the option to raise the argument on its own motion, that that's what happened here. [00:28:06] Speaker 00: The idea would be that this issue, both A and B, have been so thoroughly addressed by both the board and the Vectors' Court that we don't feel there would be any need for a further remand. [00:28:16] Speaker 04: Mr. Hockey, I know we're out of time, and I'm sorry. [00:28:20] Speaker 04: follow up on your conception of Roberson, I'll be honest right now. [00:28:25] Speaker 04: When I read that opinion, I thought, well, maybe there's another way to get cue relief beyond what I think the Justice Department would think. [00:28:37] Speaker 04: And in a situation where, on those facts, the agency did not consider the informal TDIU claim, [00:28:48] Speaker 04: and then the person later on files a duty claim, then this court said, well, it was never considered. [00:28:59] Speaker 04: It needs to be considered. [00:29:02] Speaker 00: Roberson was raised in Cook and addressed by the court, page 1347 of 318 F3rd. [00:29:10] Speaker 00: So Cook is your anchor for the Q analysis. [00:29:15] Speaker 00: I mean, Bustos in these other cases, Pierce came first. [00:29:18] Speaker 00: argument in Cook was about Q. When can you have Q? [00:29:21] Speaker 00: Can you have an exception to the two congressionally authorized exceptions to finality other than those two? [00:29:32] Speaker 00: Great procedural error being the argument, which is akin to failure to do something, right? [00:29:38] Speaker 00: Failure to consider a TDIU implied. [00:29:43] Speaker 00: So [00:29:44] Speaker 00: I would respond, Your Honor, by saying, no, I think the court, in issuing its Cooke decision, was fully aware of its prior decision. [00:29:50] Speaker 00: And Roberson felt no reason at that time to read a third exception to finality into what had already been identified by Congress as the two exceptions, new material evidence and Q. Thank you, Mr. Hoppe. [00:30:12] Speaker 02: Ms. [00:30:12] Speaker 02: Booth, you have [00:30:14] Speaker 01: I have just a few replies to Mr. Hockey's arguments. [00:30:22] Speaker 01: First of all, I find it ironic that the government is saying that Mr. Evans should be denied the remedy of revision. [00:30:29] Speaker 01: But it only can make that argument if you first allow the government to open up the 1988 decision, insert an express decision, explain why that decision, why the agency reached that decision and snap that decision back shut until Mr. Evans now you go prove that this is clear and unmistakable. [00:30:50] Speaker 01: Comer indicated that the VA benefits system is not intended to be a stratagem for the unwary [00:30:58] Speaker 01: and that the purpose is not to defeat claims but rather to allow claims that can be allowed to under law. [00:31:07] Speaker 01: The notion that the agency may silently deny a claim, silently make an expressed denial is to me a logical 3.103 clearly implicates a written decision because it requires the agency to [00:31:24] Speaker 01: tell the veteran not only what the decision was but also to explain the reasons for it. [00:31:29] Speaker 01: So that clearly would suggest to me that a silent decision known only to the VA is not a denial on the merits. [00:31:41] Speaker 01: We would submit that if there is to be an explicit denial or is to be an actual merits adjudication, it must be articulated someplace in the paperwork. [00:31:52] Speaker 01: that hasn't happened in this case. [00:31:56] Speaker 02: Is that a broad, what you just said, a broad challenge to the decisions of ours that do recognize this entity called an implicit denial? [00:32:09] Speaker 01: I'm sorry, I don't understand. [00:32:11] Speaker 02: Did you just make an argument that says the cases of ours that recognize that there can be a denial that is implicit are wrong? [00:32:23] Speaker 02: Or have I misunderstood what seems like a broad scope of what you just said? [00:32:27] Speaker 01: No, I'm not. [00:32:28] Speaker 01: What I'm saying is that the implicit denial arises as a matter of law. [00:32:35] Speaker 01: But none of the cases suggest that it constitutes a merits adjudication, that it was a merits denial. [00:32:43] Speaker 01: It's simply a notice provision in the interest of finality. [00:32:49] Speaker 01: But there's no suggestion that it constitutes a decision on the merits. [00:32:53] Speaker 01: And that's the clear and unmistakable error. [00:32:57] Speaker 04: But what do we do with the Veterans Court decision that Judge Toronto quoted earlier, right here in your case, where the Veterans Court described the board as finding that the TDIU claim was, in fact, considered and evaluated and denied? [00:33:16] Speaker 04: albeit implicitly, but nevertheless evaluated and denied. [00:33:20] Speaker 01: Well, I think as a matter of law that would be error because a silent decision of which there is no trace of in the record cannot be a merits adjudication. [00:33:35] Speaker 01: I would suggest that the Veterans Court was simply in error on the law in that regard. [00:33:40] Speaker 04: I didn't see you argue that in your briefs, though. [00:33:47] Speaker 02: And this is a case, I don't remember the details, but I think Mr. Hockey made reference to how in this case, the disability was a mental disability that from which maybe not a logical implication, but a reasonably strong factual implication would be if you're only 30% mentally disabled to use a shorthand, then there's basically no way we're going to find unemployability [00:34:17] Speaker 02: whereas some other scheduler disability 30% ratings might still leave you more plausibly unemployable, but not this one. [00:34:28] Speaker 01: I would disagree with that, Your Honor, disagree with Mr. Hockey, because the scheduler rating, even a total scheduler rating, is not the same standard as the TDIU rating. [00:34:40] Speaker 01: And again, that's something that was discussed in the Robertson case, so a denial of [00:34:46] Speaker 01: a higher scheduler rating. [00:34:48] Speaker 02: Right, but I guess I took his point to be at least suggesting maybe even expressly indicating that not all scheduler ratings have the same implications or lack of implications for unemployability. [00:35:03] Speaker 02: The mental disability one perhaps does. [00:35:07] Speaker 01: Well, I would disagree with that too, Your Honor. [00:35:11] Speaker 01: 4.16B clearly contemplates that unemployability may be available to a veteran who has a 30% rating. [00:35:21] Speaker 01: And I don't see any distinction in the regulations where that applies only to physical disabilities versus mental disabilities. [00:35:31] Speaker 01: I think it would require a factual assessment in each case as to whether or not [00:35:35] Speaker 01: The veteran psychiatric symptoms themselves prevented him from obtaining and retaining substantially gainful employment, but that's not a scheduler standard. [00:35:48] Speaker 02: I think your time has elapsed, unless you have a final word. [00:35:52] Speaker 02: Thank you. [00:35:52] Speaker 02: Thank you. [00:35:53] Speaker 02: The case is submitted, and we're done. [00:36:00] Speaker 00: Thank you. [00:36:02] Speaker 00: All rise. [00:36:04] Speaker 00: The honorable court is adjourned until tomorrow morning at 10 o'clock a.m.