[00:00:44] Speaker 03:
Our next case is Rene D. Klaus versus Secretary of Veterans Affairs 2017-2087.

[00:00:51] Speaker 03:
Is it Mr. Atick?

[00:00:55] Speaker 03:
Mr. Atick, Your Honor.

[00:01:03] Speaker 03:
Atick.

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

[00:01:04] Speaker 01:
May it please the Court.

[00:01:05] Speaker 01:
In our briefs, we provide three legal theories how this Court can extend relief to Ms.

[00:01:10] Speaker 01:
Klaus.

[00:01:11] Speaker 01:
When it comes to our strongest argument, though,

[00:01:14] Speaker 01:
that the November 2015 board vacator has no lawful effect because it was not properly served on her attorney, the secretary has no response.

[00:01:23] Speaker 01:
In fact, in their motion to remand at, I believe it's Docket 17, pages 2 and 8, they concede that the vacator decision was not sent to the last known address.

[00:01:36] Speaker 03:
You talk about how she can best proceed with her claim.

[00:01:41] Speaker 03:
Can't you best

[00:01:42] Speaker 03:
get her claim adjudicated by trying it on remand at the board level or at the RO level?

[00:01:51] Speaker 01:
No, Your Honor, we don't.

[00:01:53] Speaker 01:
There's two reasons for that.

[00:01:55] Speaker 01:
At the Veterans Court, we can make two arguments that will change the landscape on remand to the board.

[00:02:02] Speaker 01:
And the first is arguing to the Veterans Court

[00:02:05] Speaker 01:
that throughout this process, and we've only provided evidence since 2015 forward, but throughout this appeal and throughout this claim, the Secretary has continually failed to serve us with notice.

[00:02:16] Speaker 01:
So we can better prosecute Ms.

[00:02:18] Speaker 01:
Klaus's claim and appeal if we have notice.

[00:02:20] Speaker 03:
The fact is, the case has been remanded.

[00:02:22] Speaker 03:
The decision has been vacated, right?

[00:02:26] Speaker 01:
Our position, respectfully, Your Honor, is that it has not, because it was not properly served, that vacator has no lawful effect.

[00:02:32] Speaker 00:
The second thing that we can argue at the Veterans Court... What substantive relief are you looking for based on the fact that we're not properly providing notice?

[00:02:43] Speaker 01:
In terms of substantive relief at the Veterans Court, Your Honor?

[00:02:46] Speaker ?:
Anywhere.

[00:02:47] Speaker 01:
At the Veterans Court, we're asking, and we're going to make two arguments if we have the opportunity to reach the merits, is that nine of the 11 compensation and pension exams that were used to decide those claims were inadequate.

[00:02:57] Speaker 01:
And that substantive relief will allow the court to send it back to the board to get us adequate exams.

[00:03:03] Speaker 01:
As it stands now, if this court affirms the Veterans Court, the Veterans Court issues a mandate, we go back into the board with a closed record because our extension time had passed.

[00:03:14] Speaker 01:
We had no idea that extension time was granted, so the record is closed.

[00:03:18] Speaker 01:
And we're going back into 11 inadequate exams, nine of which are currently before the board.

[00:03:23] Speaker 01:
And so we're in a position where we're now arguing before the board against nine inadequate exams.

[00:03:28] Speaker 01:
We could have remedied that.

[00:03:29] Speaker 00:
Your understanding that if you were to go back to the board after it vacated its decision, your time for supplementing the record, which you asked for, is over and that you won't be able to supplement the record, notwithstanding the fact that you didn't get notice.

[00:03:47] Speaker 01:
Yes, Ron.

[00:03:47] Speaker 01:
We would have to move.

[00:03:49] Speaker 00:
Is it lack of notice something where you should get a procedural cure?

[00:03:53] Speaker 00:
I thought that that was the more typical type of relief somebody would get from lack of notice is an extension of time.

[00:04:03] Speaker 01:
We could request an extension if this Court affirms the Veterans Court and it goes back to the Board.

[00:04:08] Speaker 01:
We could request an extension of time given the lack of service.

[00:04:12] Speaker 01:
And that would be up to the Board to determine whether we state a good cause.

[00:04:16] Speaker 01:
I'm hopeful that they would do that.

[00:04:18] Speaker 01:
But the simple fact remains,

[00:04:20] Speaker 01:
is that if we are before the Veterans Court on the September 2015 Board decision, we are able to directly challenge nine compensation and pension opinions as being inadequate.

[00:04:31] Speaker 01:
And if those go back, if the Court agrees with us, the Veterans Court agrees with us that those are inadequate, it would send it back to the Board

[00:04:39] Speaker 00:
for new exams, and the- Did you, were you, was your, were you out of time at the board at the time that you finally had notice that the board's decision had been vacated and that's why you kept the appeal?

[00:04:52] Speaker 00:
I'm just trying to understand.

[00:04:53] Speaker 00:
This is a different procedural posture, so we're trying to understand why it is that this appeal is here.

[00:04:59] Speaker 00:
When you're the one who asked for the relief at the board level, you finally got it, but then you want to proceed with the appeals, the appeal.

[00:05:07] Speaker 01:
We had no knowledge of the board vacator decision.

[00:05:10] Speaker 01:
We filed an appeal off the September 2015 board decision on January 13, 2016.

[00:05:16] Speaker 01:
At the point we filed that appeal of the final September 2015 decision, we had no awareness that this 15 November 2015 vacator decision was out there.

[00:05:25] Speaker 01:
The first I learned of that was when I got the RBA, the record before the agency from the secretary in March, I believe, of 2016.

[00:05:33] Speaker 01:
And at that point, still, the Secretary did not raise the jurisdictional argument.

[00:05:38] Speaker 00:
Why didn't you at that point say, woo-hoo, I got the relief I asked for, I'm going to go back to the Board and submit the additional evidence, as you had requested?

[00:05:45] Speaker 01:
Because I didn't get the relief that I had the opportunity to seek for my client at the Veterans Court.

[00:05:50] Speaker 01:
We had an appeal of a final decision before the Veterans Court, and I could seek two remedies.

[00:05:54] Speaker 01:
I could ask the Veterans Court to say, Board and Secretary, please serve Ms.

[00:05:59] Speaker 01:
Claus's attorney as you're required to under 7104,

[00:06:02] Speaker 01:
as you're required to under 5104, as you own regulations at 103B, 103F, and 1.525D, all require that you serve Ms.

[00:06:14] Speaker 01:
Klaus's attorney.

[00:06:15] Speaker 01:
That's the first thing.

[00:06:16] Speaker 01:
The second thing is we could have gotten nine of those opinions, arguably.

[00:06:20] Speaker 01:
We would have had to persuade the court that they were inadequate, but we could have had them sent back to get adequate medical opinions on the remaining issues.

[00:06:29] Speaker 01:
that allows the board to make a decision based on adequate medical opinions.

[00:06:32] Speaker 01:
As it stands now, if this court affirms, the Veterans Court issues its mandate, the best relief that I can provide my client is to go out and pay for medical opinions that challenge each of those medical opinions put in by the board.

[00:06:46] Speaker 01:
And I don't have to do that if I can convince the court, which I'm able to do.

[00:06:49] Speaker 01:
That's an argument that I can raise.

[00:06:51] Speaker 01:
The court has frequently noticed that you can challenge the adequacy of a medical opinion before it, that it has jurisdiction.

[00:06:58] Speaker 01:
And that's the relief that we could have asked for.

[00:07:00] Speaker 03:
Have you appealed from the vacator?

[00:07:03] Speaker 01:
We have not, Your Honor.

[00:07:04] Speaker 01:
We did not appeal from the vacator.

[00:07:06] Speaker 01:
And I don't believe that we need to, in order for this Court to find that an improperly served vacator decision does not deprive the Court of jurisdiction over a final board decision that had already been filed.

[00:07:18] Speaker 01:
I don't think we need to appeal the vacator.

[00:07:20] Speaker 01:
But to a certain extent, I think it's arguable, at least, that when the Secretary moved to dismiss

[00:07:26] Speaker 01:
our appeal of the September 2015 decision by placing that vacator into the record and arguing that it was depriving the court of jurisdiction, that that gave the court the jurisdiction to at least look at it.

[00:07:37] Speaker 01:
Now I'm aware that the court can't reach that question unless they find that there was some lawful effect to the November 2015 vacator.

[00:07:49] Speaker 01:
In other words,

[00:07:50] Speaker 01:
If the court finds that the November 2015 had lawful effect, even though it was not properly served on Ms.

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Klaus's attorney, then the court, we believe, could reach those jurisdictions.

[00:07:59] Speaker 01:
I'm sorry, the argument as to the court's jurisdiction over a vacator decision and the propriety of 20.904 in the first place.

[00:08:06] Speaker 01:
But I don't believe that we need to get there because it's so clear that the board did not properly serve and still to this day has never served counsel properly.

[00:08:15] Speaker 01:
They have not cured it by delivering it to the last known address.

[00:08:18] Speaker 01:
Certainly the secretary did through the RBA, but by that time the appeal had been filed and we were already before the Veterans Court.

[00:08:24] Speaker 00:
So what do you think the standard is for when lack of notice can result in nullifying a decision?

[00:08:34] Speaker 01:
The standard for the Veterans Court, Your Honor?

[00:08:37] Speaker 01:
Yeah.

[00:08:37] Speaker 01:
I think the standard is to look and see was there proper notice.

[00:08:41] Speaker 01:
If there's proper notice, then I think that we're into the question of

[00:08:44] Speaker 01:
does the court or the board have the plenary jurisdiction?

[00:08:47] Speaker 00:
If there's improper notice, then I don't think that there's any... But there is an assumption there, an assumption that the decision, the order, that the party didn't receive notice of in a timely manner, that somehow results in nullifying the order.

[00:09:04] Speaker 00:
And what is your support for that?

[00:09:05] Speaker 00:
What is the law that supports that?

[00:09:08] Speaker 01:
I'm sorry, I don't understand the question.

[00:09:10] Speaker 00:
I think that your argument is that because you didn't get notice,

[00:09:15] Speaker 00:
their vacature decision is nullified.

[00:09:19] Speaker 00:
Do I understand that correctly or do I not?

[00:09:21] Speaker 01:
Because we didn't get notice that it has no lawful effect.

[00:09:24] Speaker 01:
Yes, that's our argument, Your Honor.

[00:09:25] Speaker 00:
Okay.

[00:09:26] Speaker 00:
What is your law to support the idea that it has no lawful effect because you didn't get notice?

[00:09:33] Speaker 01:
Where we're looking to in terms of Veterans Court precedent is we're looking to Cerullo primarily.

[00:09:38] Speaker 01:
And in Cerullo, the Veterans Court said that once an appeal has been filed on a final board decision,

[00:09:45] Speaker 01:
Once that notice of appeal is filed, the Veterans Court has plenary jurisdiction over the case, and the board cannot, in and of itself, take it away.

[00:09:52] Speaker 01:
Certainly, under Rule 4 of the Court's procedures, the Secretary's attorneys could have moved to remand before the Veterans Court.

[00:10:00] Speaker 01:
They could have that option.

[00:10:01] Speaker 04:
We have the option for seeking reconsideration of a board decision, and in that case, we would... But just following up on Judge Stoll's question, I think the question is, what is the law that you can point to

[00:10:13] Speaker 04:
that shows to us that a vacator decision by the board has absolutely no legal effect until that vacator is properly served on the claimant.

[00:10:28] Speaker 01:
I think we have I don't know that there's any direct case on point that says exactly that holding and to a certain extent we're asking this court to make that holding that if you do not properly serve a vacator decision that it does not deprive the Veterans Court of jurisdiction

[00:10:43] Speaker 01:
over the decision that they were trying to vacate.

[00:10:45] Speaker 01:
There's no case on point, and so we're asking for that.

[00:10:48] Speaker 01:
But I think if we look to those statutes, certainly Congress in 5104 and 7104 required the secretary to provide a notice not only to the appellant or the claimant, but to the claimant's representative at their last known address.

[00:11:01] Speaker 01:
The secretary's own regulations require that in numerous places.

[00:11:07] Speaker 01:
in terms of requiring that service.

[00:11:09] Speaker 01:
And so I don't see how any document where there is a requirement to serve it can have any legal effect if it's not properly served on the attorney.

[00:11:19] Speaker 04:
I know you're into rebuttal, but just really quickly, the government's red brief suggested in an alternative way that if we really need to, if we're concerned about the jurisdiction question, we should remand it

[00:11:32] Speaker 04:
down to the Veterans Court so that they could address it in the first instance because it wasn't actually addressed by them before, because it wasn't really developed before.

[00:11:43] Speaker 04:
So what do you think about that alternative suggestion by the government here?

[00:11:49] Speaker 01:
To the extent that this Court would remand to the Veterans Court to have them address the issue of the lawful effect,

[00:11:55] Speaker 01:
of the board's vacator decision being improperly served.

[00:11:58] Speaker 01:
I think that that is largely correct, that this Court can remand it and ask them to address it.

[00:12:03] Speaker 01:
Certainly, we believe we raised it at the Veterans Court, but even if we did not, even if the Court finds that we did not, we did not forfeit or waive subject matter jurisdiction.

[00:12:12] Speaker 01:
And so I think that that would be an acceptable remedy, is to have the Veterans Court address that argument in the first place.

[00:12:22] Speaker 03:
We will save the remainder of your time for a bottle if you need it.

[00:12:25] Speaker 03:
Mr. Pelkey, is it?

[00:12:27] Speaker 02:
Pelkey.

[00:12:28] Speaker 02:
Pelkey.

[00:12:30] Speaker 02:
Good morning.

[00:12:31] Speaker 02:
May it please the Court?

[00:12:35] Speaker 02:
First, I'd like to address the point Council raised regarding the Board attempting to take jurisdiction away from the Veterans Court with the vacator decision, which I think

[00:12:48] Speaker 02:
places the sequence of events out of order here.

[00:12:51] Speaker 02:
As the vacator preceded the notice of appeal that went out to the Veterans Court, the board did not undertake the vacator decision in order to deprive the Veterans Court of anything.

[00:13:01] Speaker 02:
The fact is that when the notice of appeal went up, the vacator decision was already in place, which I think isolates the issue around the question of notice that was being discussed with counsel during his argument.

[00:13:15] Speaker 04:
On notice and as to what the proper hypothetically the board issued a vacator decision and then But it didn't mail it to anybody.

[00:13:26] Speaker 04:
It just stuck it in its own files and its own office at the board and that was it With that vacator decision have any legal effect

[00:13:35] Speaker 02:
Well, I think that that fact pattern would raise questions about what the potential remedy of that outcome might be for a party if a deadline was missed or something in that way.

[00:13:47] Speaker 02:
But I don't think it necessarily nullifies the vacator, and there's no case law that supports that finding.

[00:13:53] Speaker 02:
When one looks at cases involving notice, the usual remedy for victims of improper notice or incomplete notice

[00:14:02] Speaker 02:
is to extend deadlines, to do something that puts the individual back in a position where... What is the government's theory of when a vacator decision takes legal effect?

[00:14:12] Speaker 02:
When the decision is entered.

[00:14:15] Speaker 04:
What does that mean, entered?

[00:14:18] Speaker 02:
When the court makes the order of vacator and dates it and it goes in the docket, that is when the vacator decision is made and becomes effective.

[00:14:29] Speaker 02:
in an analogous situation, because I do agree with counsel.

[00:14:31] Speaker 02:
I don't think there's anything directly on point here in the Veterans Court.

[00:14:35] Speaker 00:
What about regional circuit law?

[00:14:37] Speaker 02:
Excuse me?

[00:14:38] Speaker 00:
What about regional circuit law?

[00:14:39] Speaker 00:
Did you look for regional circuit law to answer this question?

[00:14:43] Speaker 02:
What I've looked at, it wasn't in the briefs.

[00:14:45] Speaker 02:
I came on the case substituting counsel.

[00:14:47] Speaker 02:
But I did look, for instance, at the federal rules of civil procedure, rule 77.

[00:14:51] Speaker 02:
Because specifically, I was looking for an instance where the court itself

[00:14:55] Speaker 02:
is responsible for making notice, so not where a party is responsible for notifying the other side fails to do so, but where the court fails to provide adequate notice of something.

[00:15:05] Speaker 02:
And in Rule 77, which involves final judgments, it explicitly says that notice does not affect the time to appeal on a final judgment.

[00:15:15] Speaker 02:
Instead, it refers back, and you can look at the appellate rules, that if there is a failure of notice from the court's office... That's for a specific circumstance, right?

[00:15:24] Speaker 02:
Right, but it's an instance where a court is responsible for notice on something that has to do with it.

[00:15:31] Speaker 00:
It's an instance, but it's got a statutory resolution for that particular instance when you're looking at a notice of appeal.

[00:15:36] Speaker 02:
Right.

[00:15:37] Speaker 00:
In preparing for today, I looked at some cases that were from regional circuits, and they seem to suggest that lack of notice that is operated to prejudice as substantial right of remedy

[00:15:51] Speaker 00:
could result in some sort of nullification.

[00:15:54] Speaker 00:
Are you familiar with that line of thought?

[00:15:56] Speaker 02:
I am, Your Honor.

[00:15:57] Speaker 02:
And I think why I don't think it's a good fit here in terms of analogy is the order that wasn't noticed is not appealable in the first instance.

[00:16:07] Speaker 02:
The vacator order is not something that could be appealed.

[00:16:09] Speaker 02:
I think the Veterans Court was correct on that.

[00:16:11] Speaker 02:
It's not a final decision, and it wouldn't come into jurisdiction.

[00:16:14] Speaker 02:
If the vacator decision had been noticed properly, what would have happened

[00:16:17] Speaker 02:
is that Ms.

[00:16:19] Speaker 02:
Klaus would have presented the evidence that she said she wanted to present.

[00:16:23] Speaker 02:
And that could have resulted in a different decision because the vacator, of course, nullified the entire previous board decision.

[00:16:30] Speaker 02:
So all six claims for relief were open again.

[00:16:33] Speaker 02:
And if she had evidence to present, it could have been presented, could have resulted in a different outcome, and then could have proceeded with a period.

[00:16:39] Speaker 00:
Could she have asked for new medical exams at that point?

[00:16:43] Speaker 02:
She could have asked for

[00:16:45] Speaker 00:
New medical exams.

[00:16:46] Speaker 00:
I understood counsel to be saying that something that Ms.

[00:16:50] Speaker 00:
Class would like is new medical exams.

[00:16:53] Speaker 02:
I think that's something she has raised now on what she wants to pursue on appeal, something that should have been ordered by the board.

[00:16:59] Speaker 02:
I think she would be able to argue that to the board on the basis of some new evidence.

[00:17:03] Speaker 00:
After the case had been vacated, do you think that she could have argued that to the board?

[00:17:08] Speaker 02:
I think that the nullification of the prior decision... Yes, sorry.

[00:17:12] Speaker 00:
Thank you.

[00:17:12] Speaker 00:
Go ahead.

[00:17:13] Speaker 00:
The nullification of the prior decision.

[00:17:14] Speaker 00:
Please go on.

[00:17:15] Speaker 02:
I'm sorry.

[00:17:15] Speaker 02:
So the nullification of prior order would... She could ask to put in the evidence.

[00:17:20] Speaker 02:
Council indicated that the records closed, but of course she could request to put in the evidence that she wanted to put in previously.

[00:17:26] Speaker 02:
I'm not aware of which counts that evidence goes to, but if it went to one of the claims where she thinks there should be more

[00:17:34] Speaker 02:
medical examination, et cetera, it could result in a different outcome at the board level.

[00:17:39] Speaker 02:
If it doesn't, at the very least, the result is a complete record for the Veterans Court.

[00:17:44] Speaker 02:
Whereas under the current scenario, Ms.

[00:17:47] Speaker 02:
Klaus wants to proceed with an appeal on the merits for the Veterans Court without the evidence that she said she needed and told the board she needed.

[00:17:55] Speaker 02:
So it's difficult to see why the Veterans Court would want to decide on the merits in this case, because they're going to be looking at

[00:18:03] Speaker 02:
an appeal on the merits, and then sitting next to it, this flashing light from the record below that there was a request to submit more evidence that has just been shunted aside for whatever reason.

[00:18:14] Speaker 02:
And I think that that would raise questions in the veteran court's mind why we should proceed on a record that a petitioner's own litigation approach is incomplete.

[00:18:28] Speaker 02:
There's something missing in the record.

[00:18:31] Speaker 04:
I'm sorry, has Ms.

[00:18:33] Speaker 04:
Claus withdrawn that request to supplement the record?

[00:18:37] Speaker 02:
My understanding is that her case for the board is in stasis.

[00:18:45] Speaker 02:
So that would be advanced to be reopened and to proceed.

[00:18:51] Speaker 02:
So the record is closed, it's gone up on appeal, but of course there are mechanisms in place.

[00:18:55] Speaker 02:
And given the record here, I don't think that there's

[00:18:59] Speaker 02:
any serious risk of not being able to proceed with bringing forth that new evidence, reopening the case, and arguing.

[00:19:06] Speaker 02:
We're seeing not all elements of it.

[00:19:11] Speaker 03:
Thank you very much.

[00:19:12] Speaker 02:
Any further questions?

[00:19:13] Speaker 03:
Thank you.

[00:19:14] Speaker 03:
Thank you very much, Mr. Gatlin.

[00:19:16] Speaker 03:
He has further time for a bottle.

[00:19:20] Speaker 01:
Thank you, Your Honor.

[00:19:23] Speaker 01:
Throughout the course of this appeal, through Mrs. Claus's appeal, the Secretary has

[00:19:28] Speaker 01:
not served us with ratings decisions, not served us with compensation and pension opinions.

[00:19:33] Speaker 01:
They have not served us with statements of the case.

[00:19:36] Speaker 01:
They have not served us with BVA decisions.

[00:19:38] Speaker 01:
They have not served her attorney with board vacator decisions.

[00:19:42] Speaker 01:
Since this appeal has been filed, as we've noted in our proposed supplemental appendix, they have severed benefits.

[00:19:49] Speaker 01:
They have attempted to recoup benefits.

[00:19:51] Speaker 01:
They have reinstated benefits and tried to claim $51,000 in past due benefits.

[00:19:57] Speaker 01:
all without serving her attorney.

[00:19:59] Speaker 01:
And so to the extent that we could have added anything in this appeal prior to reaching the board's decision requires that the attorney be served with these documents.

[00:20:10] Speaker 01:
They weren't.

[00:20:11] Speaker 01:
They were not given to us.

[00:20:12] Speaker 01:
They were sent to the wrong addresses.

[00:20:13] Speaker 01:
The record clearly demonstrates that they were sent to prior addresses of the firm just even since 2015.

[00:20:18] Speaker 01:
And because of that,

[00:20:22] Speaker 01:
In our belief, we sit with a final decision before the Veterans Court and an opportunity to ask the Veterans Court to tell the board to follow 7104, to follow 5104, to follow the three regulations that require service of the attorney, and to serve notice to the attorney.

[00:20:37] Speaker 01:
That in and of itself is more relief than the court, than the board has given right now.

[00:20:44] Speaker 01:
As it stands right now, this could go back on mandates to the board,

[00:20:48] Speaker 01:
the board could issue its decision, deny all the benefits.

[00:20:51] Speaker 01:
I may never see a decision.

[00:20:52] Speaker 01:
I have no confidence that I will see a decision.

[00:20:55] Speaker 01:
And so I don't have any confidence that I could even timely appeal again to the Veterans Court.

[00:20:59] Speaker 01:
And that is the remedy that we seek, is an order to the court to either address, as was suggested earlier, either address the question of whether a board vacator improperly served, deprives the court jurisdiction, or to tell the Veterans Court that they erred when they found

[00:21:16] Speaker 01:
that they lack jurisdiction over a final board decision when there's been an improperly served vacator.

[00:21:22] Speaker 01:
That's the remedy we request and if there's no further questions, I yield the balance of my time.