[00:00:04] Speaker 03:
Okay, we have four arguments this morning.

[00:00:07] Speaker 03:
The first one is Appeal Number 17-2236, Mayo versus Wilkie.

[00:00:15] Speaker 03:
Mr. Carpenter, whenever you're ready.

[00:00:18] Speaker 02:
Thank you, Your Honor.

[00:00:18] Speaker 02:
May it please the Court, Kenneth Carpenter, appearing on behalf of Doris Mayo.

[00:00:23] Speaker 02:
The Veterans Court has consistently interpreted the provisions of 38 CFR 4.16b to require a referral to the Director of

[00:00:32] Speaker 02:
compensation services at the central office of the VA for a decision on the merits in the first instance on a question of an extra schedule or total rating.

[00:00:43] Speaker 02:
The decision of the Veterans Court in this case affirmed the board's decision on the merits, which was made without a referral.

[00:00:52] Speaker 02:
This was a clear error and inconsistent with both the interpretation of the regulation and the case law of the Veterans Court.

[00:01:01] Speaker 02:
The board denied the accrued benefit claim of Mrs. Mayo without there having been a referral and a decision in the first instance by the director.

[00:01:16] Speaker 02:
The Veterans Court in Fisher clearly held that where there was extraneous circumstances presented that the director might consider that a referral to the director

[00:01:28] Speaker 02:
on the subject matter of the appeal was required.

[00:01:32] Speaker 02:
The Stanton case, the Veterans Court held that the veteran's testimony that he or she was unable to obtain employment due to service-connected disability was sufficient to meet the threshold requirement for the entitlement to an extra schedule or total raise.

[00:01:47] Speaker 00:
Mr. Carpenter, I'm not sure I understand exactly what your position is with respect to the role that's to be played by the board or the regional office in making

[00:01:57] Speaker 00:
any kind of threshold determination before sending the case to the director.

[00:02:03] Speaker 00:
As I read the bowling against Principi case, the court seemed to be saying that this was a determination initially to be made by the board or the regional office.

[00:02:19] Speaker 00:
And if the board or regional office determined that the case was not one which warranted

[00:02:26] Speaker 00:
being submitted to the director, then that determination would be made by the board or the regional office and subject to a clear error analysis.

[00:02:37] Speaker 02:
But that decision would be whether or not there was the threshold requirements to make the referral, not the merit determination.

[00:02:45] Speaker 00:
But isn't the determination as to whether there's a threshold basis, doesn't that entail making at least an initial merits type decision?

[00:02:56] Speaker 02:
No, Your Honor.

[00:02:57] Speaker 02:
The threshold determination is simply whether or not there's a reasonable basis, a plausible basis in the record to make a referral.

[00:03:06] Speaker 02:
And under the Stanton case, that was met when Mr. Mayo, prior to his death, said that he couldn't work due to his service-connected disability.

[00:03:15] Speaker 02:
That required the referral, and by requiring the referral, it required a decision by the director.

[00:03:22] Speaker 00:
So your argument then is that here,

[00:03:25] Speaker 00:
The mistake that was made was that the board did not correctly assess the strength of his case for purposes of referral.

[00:03:37] Speaker 02:
Didn't follow the case law of the Veterans Court in the Stanton case that required that a referral be made when there is prima facie evidence, in this case from the veteran in his late testimony, that he was unable to work due to his service-connected disability.

[00:03:53] Speaker 02:
They then went on to make the threshold determination, which is mandated by the terms of the regulation, to only be made by the director.

[00:04:01] Speaker 00:
But the threshold determination, I gather, is made by the board or the regional office as to whether there's enough evidence to be a plausible case.

[00:04:12] Speaker 02:
Right.

[00:04:12] Speaker 02:
And so the correct decision by the board in this case, had they concluded that there wasn't threshold

[00:04:18] Speaker 02:
evidence in this case, was that there was no threshold evidence to make that referral.

[00:04:23] Speaker 02:
And that would have been the issue appealed to the board.

[00:04:26] Speaker 02:
Instead, the final decision that was made was on the merits that there was no entitlement to the extra schedule or total rating.

[00:04:36] Speaker 03:
Could you talk a little bit about the Thone case?

[00:04:38] Speaker 03:
As I understand it, we've already interpreted a particular regulation, 3.321B1,

[00:04:46] Speaker 03:
But also we commented on 4.16b and one could read Thun as saying that this court has already found that the plain language of those regulations don't call for the board or the RO to simply make a threshold determination of whether there's a plausible basis, but in fact call for those entities to first decide for themselves whether

[00:05:15] Speaker 03:
They believe an extra scheduler is warranted, and if so, then they send it on to the director.

[00:05:21] Speaker 02:
And I believe if that were in fact the correct interpretation, then the decision of the Veterans Court in the cases that are cited in my brief were wrongly decided.

[00:05:32] Speaker 02:
So it would seem to me that it would be up to this court to decide that the rule in THUN applies here.

[00:05:39] Speaker 02:
I do not believe the rule in THUN applies here because the language of the regulation in 3.321B1 is significantly different than the language in 4.16B.

[00:05:52] Speaker 02:
The language in 3.321B as the court decided in THUN had two specific threshold requirements that were

[00:06:01] Speaker 02:
the basis for determining whether or not a referral needs to be made.

[00:06:05] Speaker 02:
There is no such criteria outlined in the plain language of 416B.

[00:06:11] Speaker 02:
And the language of 416B in the Fisher-Stanton bowling as well as the wages case, which was recently decided in 2015, says that that decision is to be made by the director.

[00:06:25] Speaker 02:
Now under this regulatory scheme... Just getting back to Thun.

[00:06:30] Speaker 03:
In order to decide the meaning of 3.321b in that case, we also consulted 4.16b and engaged in some kind of interpretive

[00:06:42] Speaker 03:
exercise it as to the meaning of 4.16b, didn't we?

[00:06:46] Speaker 02:
I do not believe you did, Your Honor, or at least that's not the way that I read THON, and I was counsel in THON.

[00:06:51] Speaker 02:
Right, I know you were.

[00:06:55] Speaker 03:
But there was a discussion of 4.16b.

[00:06:56] Speaker 02:
There was a discussion of 4.16b.

[00:06:57] Speaker 03:
There was a quote in the language of 4.16b.

[00:07:00] Speaker 02:
And the relevant portion of that discussion was is that both regulations required a referral to be made to the director or the undersecretary in the case of

[00:07:11] Speaker 02:
3.321b for a decision on the question of entitlement to extra scheduler consideration in 3.321b and entitlement to an extra scheduler total rating in 416b.

[00:07:25] Speaker 02:
They are simply two separate criteria as outlined, and even though there is reference in THUN, it was more contextual for the sense of

[00:07:35] Speaker 02:
Both of these regulations required a referral to the central office to make the ultimate decision and precluded in both cases the decision being made by the agency of original jurisdiction or the board in the first instance.

[00:07:54] Speaker 00:
But as I understand the language from Thun, the determination as to whether the claimant

[00:08:04] Speaker 00:
is unemployable by reason of the service-connected disabilities is one that's made by the board of the regional office.

[00:08:12] Speaker 00:
Isn't that right?

[00:08:15] Speaker 00:
Before a referral is made.

[00:08:18] Speaker 00:
No, Your Honor.

[00:08:19] Speaker 00:
Well, the language, the sentence that I'm focusing on from Thorn says the plain language of the regulation requires such referrals, the referral to the director.

[00:08:31] Speaker 00:
to be made only when it has been determined that the claimant is unemployable by reason of service connected disabilities.

[00:08:37] Speaker 00:
That determination being made by the regional officer of the board, right?

[00:08:41] Speaker 02:
Well, Your Honor, that couldn't be the language from THUN because THUN deals not with... Well, I'm actually reading that's exactly the language from the case.

[00:08:52] Speaker 02:
Do you have a copy of the opinion?

[00:08:54] Speaker 02:
I do, but I did not bring it with me.

[00:08:57] Speaker 02:
I'm sorry.

[00:08:58] Speaker 02:
Well, trust me, that's the language of the case.

[00:09:00] Speaker 02:
But my point is that the language of the regulation does not go to unemployability under 3.321b.

[00:09:09] Speaker 02:
3.321b is for an extra scheduler when the rating criteria is inadequate to adequately compensate the veteran at the scheduler rating.

[00:09:21] Speaker 02:
3.321b deals with scheduler ratings and whether you can get more than what the scheduler rating calls for on what they call an extra scheduler basis.

[00:09:32] Speaker 02:
It does not go to an extra scheduler total basis, only 416 does.

[00:09:38] Speaker 02:
And 416 language is different than the language in 3.321b1.

[00:09:44] Speaker 02:
And I would just urge the court to compare the language of each of these regulations to confirm

[00:09:50] Speaker 02:
that my representation is correct, regardless of how it may have been framed in the decision.

[00:09:57] Speaker 02:
The regulation, in fact, for 3.321B only deals with scheduler criteria to get what would be potentially a total rating, but the predicate is not on the inability to work.

[00:10:12] Speaker 02:
It is on the inability of the scheduler criteria to adequately compensate for the symptoms and manifestations

[00:10:18] Speaker 02:
of that particular disability because the VA's rating code or rating criteria does not adequately cover those symptoms.

[00:10:29] Speaker 02:
I see that I'm into my reserve time.

[00:10:32] Speaker 02:
If there's any further questions, I'll... Okay, thank you.

[00:10:43] Speaker 03:
We'll hear from the government.

[00:10:46] Speaker 03:
Is it Ms.

[00:10:47] Speaker 03:
Cruiser?

[00:10:47] Speaker 01:
Yes, Cruiser, Your Honor.

[00:10:49] Speaker 03:
OK, very good.

[00:10:50] Speaker 01:
Thanks.

[00:10:51] Speaker 01:
Good morning, Your Honors.

[00:10:52] Speaker 01:
May it please the court?

[00:10:53] Speaker 01:
This is an appeal of a Veterans Court decision affirming a board finding that the appellant is not entitled to total disability due to individual unemployability or TDIU.

[00:11:03] Speaker 01:
Contrary to Mrs. Mayo's arguments, there is no question of statutory or regulatory interpretation for the court to resolve, and this case is not within the court's limited jurisdiction.

[00:11:12] Speaker 01:
The mere fact that Mrs. Mayo has put forth

[00:11:15] Speaker 01:
an alternative explanation or reading of 4.16b, which runs contrary to its plain language, does not create an issue of law for the court to decide.

[00:11:25] Speaker 00:
Why not?

[00:11:26] Speaker 00:
The position taken by Ms.

[00:11:29] Speaker 00:
Mayo is that as a matter of law, this regulation has to be read in a particular way.

[00:11:36] Speaker 00:
Now, you disagree with

[00:11:38] Speaker 00:
Mr. Carpenter over the reading of the regulation.

[00:11:42] Speaker 00:
Why isn't that a pure question of law suitable for our resolution?

[00:11:46] Speaker 01:
Because, Your Honor, the Veterans Court was not interpreting that statute.

[00:11:50] Speaker 01:
The fact that Mrs. Mayo on appeal has raised an alternative regulation does not mean that the lower court was making any interpretation.

[00:11:58] Speaker 01:
The Veterans Court took the language of 4.16B and applied it to the situation.

[00:12:04] Speaker 01:
The Veterans Court reviewed the board's factual determinations and how the board weighed the evidence.

[00:12:08] Speaker 01:
and decided that there had been no clear error.

[00:12:10] Speaker 01:
The Veterans Court did not make any holdings about the referral process or how the terms of the statute should be interpreted.

[00:12:17] Speaker 01:
This court has already held, for example, that an interpretation cannot mean the mere application of a statute to the facts of the case, just based on the court's jurisdictional statute.

[00:12:30] Speaker 03:
What if the board's application of the regulation is premised

[00:12:38] Speaker 03:
necessarily on a particular conception of that regulation.

[00:12:41] Speaker 03:
Maybe not articulated, but the logic of their decision making is necessarily based on understanding the regulation as requiring the board to make a merits-based determination right there on the extra scheduler question, and not just a mere threshold question of whether there's a plausible basis for an extra scheduler that would then warrant

[00:13:08] Speaker 03:
referring the matter to the director.

[00:13:11] Speaker 01:
Well, Your Honor, the board applied the terms of the statute which states that... The regulation.

[00:13:17] Speaker 01:
Yes, the regulation.

[00:13:18] Speaker 01:
The board applied the terms of the regulation which state that veterans that have been deemed to be unemployable by reason of their service-chanted disability should have their cases referred to the director.

[00:13:28] Speaker 01:
The board simply put that mandate to determine the unemployability and made factual determinations on that matter which the veterans court

[00:13:37] Speaker 01:
upheld.

[00:13:38] Speaker 01:
There's no argument about differing interpretations of the process before the Veterans Court.

[00:13:46] Speaker 01:
The plain language of the statute clearly shows that there must be a determination of unemployability before a referral is made.

[00:13:55] Speaker 03:
Was there an argument to either the Board or the Veterans Court below by Mrs. Mayo that the right understanding of this regulation 4.16b requires

[00:14:06] Speaker 03:
a finding of just a mere plausible basis, an extra scheduler, and then only once that small threshold is met, then the VA is required to send it over to the director?

[00:14:20] Speaker 01:
No, Your Honor.

[00:14:20] Speaker 01:
I believe Mrs. Mayo's argument before the Veterans Court revolved around the weighing of evidence, primarily how the lay evidence was treated versus the medical evidence, which is now being crafted into a regulatory interpretation argument at this

[00:14:36] Speaker 01:
court.

[00:14:36] Speaker 01:
The path of the case below shows that Mrs. Mayo understood that the board would be making factual determinations about unemployability, and the arguments went to the weight of the lay evidence in making that unemployability determination.

[00:14:51] Speaker 01:
There was not an argument that this process should have some sort of extra step in it, and any sort of possibility of unemployability merited a referral to the director.

[00:15:03] Speaker 01:
In fact, that argument would eliminate

[00:15:06] Speaker 01:
the board's ability to take away evidence in the first instance.

[00:15:09] Speaker 01:
There's numerous cases that are cited by the board and the Veterans Court about how the evidence should be considered and that it does not always have to be taken as competent to weigh on medical questions.

[00:15:20] Speaker 01:
And that body of case law would simply be erased if any statement of a veteran that he is unable to work would merit referral to the director for the director to make a merits finding about unemployability.

[00:15:33] Speaker 01:
Mrs. Mayo's argument is

[00:15:34] Speaker 01:
based on a conflation of two different decisions.

[00:15:37] Speaker 01:
One is the factual question by the regional office or the board as to whether the veteran is unemployable by reason of the service-connected disability.

[00:15:46] Speaker 01:
If the veteran is found to be unemployable, the referral is made to the director.

[00:15:50] Speaker 01:
The director then has the ultimate power to award the rating of totally disabled.

[00:15:55] Speaker 01:
So the cases that Mrs. Mayo has cited that appear to limit the power of the board is the power of the board to award the rating.

[00:16:04] Speaker 01:
Mrs. Mayo's argument is based on conflating the power to award the rating of totally disabled and the unemployability of termination.

[00:16:11] Speaker 00:
Do you agree with Mr. Carpenter that the proper standard to apply here is the plausible basis standard, i.e.

[00:16:19] Speaker 00:
is there a plausible basis to believe that this individual is entitled to TDIU?

[00:16:27] Speaker 00:
A plausible basis being the prerequisite for a referral.

[00:16:34] Speaker 01:
I believe Bowling and Fisher do use the language.

[00:16:37] Speaker 01:
In those cases, they state that the Veterans Court was reversing the board's finding because some of the evidence suggested that there was a plausible basis for unemployability.

[00:16:50] Speaker 00:
Do you accept that as a legal construction of 4.16b?

[00:16:58] Speaker 01:
I don't accept the way that Mrs. Mayo is presenting it.

[00:17:02] Speaker 00:
OK.

[00:17:03] Speaker 00:
But I'm asking you a question as to the proper construction of 4.16b, not Mrs. Mayo's argument.

[00:17:11] Speaker 00:
And so tell me how you deal with the language from Bowling, which I think was an in-bank decision of the Veterans Court, that talks in terms of the plausible basis standard.

[00:17:28] Speaker 01:
Well, Your Honor, I believe that's the same as how the board treated the matter in this instance.

[00:17:34] Speaker 01:
The board found that by a preponderance of the evidence, Mrs. Mayo had shown that Mr. Mayo was not unemployable, was by reason of a service granted disability, because all the evidence was a lay statement that he was unable to work, that he was completely disabled.

[00:17:51] Speaker 01:
That's no different than in bowling, there is various indicia of his

[00:17:57] Speaker 01:
on the veterans' situation of employability, which the veterans' court found the board had not properly weighed.

[00:18:03] Speaker 00:
Well, you mentioned the preponderance standard, but how does that square with the plausible basis standard that was used in bowling?

[00:18:17] Speaker 00:
They seem to be two different standards to me.

[00:18:20] Speaker 01:
Well, Your Honor,

[00:18:22] Speaker 01:
In bowling, the issue in the court was that the board had not properly weighed evidence that showed that he was unemployable by reason of the surrogate disability.

[00:18:33] Speaker 01:
And the plausible basis was about the weight of the evidence.

[00:18:38] Speaker 01:
And in this case, the board found that the weight of the evidence did not support the decision.

[00:18:43] Speaker 00:
Do you agree that evidence could be plausible without rising to the level of a preponderance?

[00:18:56] Speaker 01:
Your Honor, I think it would be the same.

[00:19:00] Speaker 01:
Really?

[00:19:02] Speaker 00:
The plausible.

[00:19:04] Speaker 00:
I would think plausible just without digging deeply into the cases on this, but plausible sounds like a lower standard to me than preponderance.

[00:19:16] Speaker 00:
Well, Your Honor, that's... Possible being kind of almost a probable cause type standard, isn't it?

[00:19:21] Speaker 01:
Your Honor, I certainly don't...

[00:19:24] Speaker 01:
That could be correct, Your Honor.

[00:19:26] Speaker 01:
That was not the issue that was addressed here.

[00:19:28] Speaker 01:
Because in any event, the lay evidence that was presented by Mrs. Mayo, the board found that it was not competent to address the medical question of what of his many health problems was causing the unemployability.

[00:19:44] Speaker 01:
So in this case, there's no question of how the evidence

[00:19:50] Speaker 01:
if there's enough evidence to get over a certain threshold because all the evidence, the only evidence Mrs. Mayo put forth was simply the lay statement of Mr. Mayo that did not address the medical question.

[00:20:02] Speaker 03:
So those... Did you walk us through the Thune opinion a little bit?

[00:20:05] Speaker 03:
Sure.

[00:20:06] Speaker 03:
As I understand it, Thune's counsel was advocating for a plausible evidence standard for a referral to the director

[00:20:20] Speaker 03:
as the right understanding of 3.321b and that this court ultimately rejected that understanding of 3.321b.

[00:20:32] Speaker 01:
Yes, Your Honor.

[00:20:33] Speaker 03:
And in doing that, this court consulted 4.16 because Thune argued that 4.16 also should be understood in that same way as having a plausible evidence standard.

[00:20:51] Speaker 01:
Yes, Your Honor.

[00:20:52] Speaker 01:
The court has, in our review, rejected Mrs. Mayo's conception of the 4.16 referral process that is now being advocated.

[00:21:01] Speaker 01:
In Thune, the court affirmed the idea that while the rating boards cannot assign the extra schedule of their rating, they may conduct initial screenings of claims and can refer to the director those claims that meet certain factual elements.

[00:21:15] Speaker 01:
Here the factual element is whether or not the veteran is unemployable

[00:21:19] Speaker 01:
by reason of the service captain disability.

[00:21:22] Speaker 03:
That would be done under a preponderance of evidence standard.

[00:21:27] Speaker 03:
Yes?

[00:21:28] Speaker 01:
Yes, your honor.

[00:21:29] Speaker 01:
But the regulation does not require, Mrs. Mayo has put forth a contention that any possibility of unemployability should be referred to the director.

[00:21:43] Speaker 01:
And the question of what is plausible basis and what is

[00:21:47] Speaker 01:
the weighting of the evidence is the factual question that goes, that the board is determining in the first instance about the weight of the evidence and how it interacts with the medical evidence, the statements of the veteran.

[00:21:59] Speaker 01:
The question of what weight various elements should be given to is the factual question that the board is deciding.

[00:22:04] Speaker 01:
That is the question that needs to be determined before a matter goes to the regional office.

[00:22:11] Speaker 01:
Ms.

[00:22:11] Speaker 01:
Mayo's argument is that any evidence that raises a question

[00:22:16] Speaker 01:
of unemployability needs to be immediately reaffirmed to the director, which goes against the plain language of the statute.

[00:22:23] Speaker 01:
And in THUN, even though it was about the other referral process in 3.321b, as Your Honors noted, although in THUN was trying to analogize to 4.16b and the court rejected that contention and specifically stated that the referral to the director of compensation services in 4.16b

[00:22:45] Speaker 01:
is to be made only when it has been determined that the claimant is unemployable by reason of service-connected disabilities and that the finding of unemployability is a condition precedent to referral to the regional office under 4.16B.

[00:22:58] Speaker 01:
So here the board made that finding of unemployability.

[00:23:05] Speaker 01:
Furthermore, there's nothing in Bowling or Fisher that limits the board to only considering whether there's a possibility of

[00:23:14] Speaker 01:
unemployability.

[00:23:15] Speaker 01:
In those cases, the board is analyzing evidence.

[00:23:19] Speaker 03:
Quick background question.

[00:23:20] Speaker 03:
Sure.

[00:23:22] Speaker 03:
Assuming you're right that the board or the receiving office is supposed to independently determine for itself on the merits by preponderance of evidence whether or not a particular claimant deserves an extra scheduler rating, what is the purpose of doing any kind of referral to the director?

[00:23:44] Speaker 03:
at that point.

[00:23:45] Speaker 03:
There has already been a fact finding made by the VA.

[00:23:49] Speaker 03:
So why take the additional step in those situations where the board or the RO does in fact find that the evidence warrants an extra scheduler?

[00:24:01] Speaker 01:
Well, Your Honor, it has numerous positive effects, which are actually discussed in the case in the Veterans Court case wages.

[00:24:08] Speaker 01:
Having the referral process, first of all, allows that

[00:24:13] Speaker 01:
the director is the one signing the ultimate rating, which centralizes the award of those ratings in one body.

[00:24:20] Speaker 03:
But if the board or the RO decides that there shouldn't be an extra scheduler awarded, then that choice does not get referred to the director, right?

[00:24:31] Speaker 03:
The RO or the board can stop the process, but they don't have the authority to grant the extra scheduler.

[00:24:39] Speaker 01:
The board and the regional office make the fact

[00:24:43] Speaker 01:
element finding of unemployability by reason of the service-tentative disability.

[00:24:47] Speaker 01:
If that fact-finding is made, it's referred to the director.

[00:24:50] Speaker 01:
Now, the director can award the rating or could decide not to award the rating, which would also be appealable.

[00:24:57] Speaker 01:
I believe the Anderson and Wages case discussed that.

[00:24:59] Speaker 01:
But having the director award the rating allows the director to analyze what sorts of cases are being referred to

[00:25:10] Speaker 01:
be receiving these extra scheduler ratings to see if the schedule needs to be changed since the director has the power over the schedule.

[00:25:17] Speaker 01:
It eliminates all the different regional offices and boards making different determinations as to what merits the ultimate rating.

[00:25:25] Speaker 00:
If the determination is, and I'm really asking I think the same question that Judge Tendent, but if the board or the regional office makes the determination that

[00:25:38] Speaker 00:
the service-connected disability rendered the individual unemployable.

[00:25:46] Speaker 00:
What would be the basis on which the director could then do anything other than to grant TDIU?

[00:25:54] Speaker 01:
The director is not required to grant the TDIU.

[00:26:00] Speaker 00:
Since that's the requirement, as I understand it, for getting TDIU, what would the director say

[00:26:07] Speaker 00:
by way of why a person who had already been determined to be unemployable because of a service-connected disability, what would be the basis for saying that person does not get TDIU?

[00:26:19] Speaker 01:
Well, Your Honor, presumably the director could disagree that the veteran was not, was unemployable by reason, but that's... It would really be only a situation where the director would countermand the determination made by the regional officer board.

[00:26:37] Speaker 01:
Yes, Your Honor.

[00:26:38] Speaker 01:
I believe that has occurred in some of the cases.

[00:26:40] Speaker 01:
And then the individual then appealed that decision.

[00:26:44] Speaker 01:
There were questions of how the board's determination should be weighed with that.

[00:26:49] Speaker 01:
But it would be another question of simply weighing the facts for the Veterans Court and the board to make the determination of.

[00:26:57] Speaker 01:
Thank you, Your Honor.

[00:26:58] Speaker 03:
Thank you.

[00:27:03] Speaker 02:
Your Honor, I believe that the

[00:27:04] Speaker 02:
VA is incorrect as it represents the role of the VA in this process under this regulation.

[00:27:12] Speaker 02:
The VA has asserted that the role is to make the decision in the first instance and they're relying upon the language in a fund to support that view.

[00:27:22] Speaker 02:
First, that is inconsistent with the decisions that are cited in the appellant's brief in support of it is the obligation of the director to make that decision.

[00:27:33] Speaker 02:
as both Judge Chin and Judge Bryson have correctly pointed out, it makes no sense to read this regulation that the decision is made and then it's referred to the director to make the decision again.

[00:27:45] Speaker 02:
Clearly, by this regulation, and there is no statutory predicate to this regulation, this is a regulation that the secretary himself has written, and that regulation requires a decision by the director, and it requires a referral

[00:28:01] Speaker 02:
there is a complete disconnect between a decision by the board which says that there is a preponderance of evidence against the claim with the plain language of bowling and other cases which talk in terms of a plausible basis to make the referral.

[00:28:18] Speaker 03:
The regulation doesn't say plausible basis.

[00:28:20] Speaker 02:
The regulation does not, Your Honor.

[00:28:21] Speaker 02:
The case law does.

[00:28:22] Speaker 02:
And that's why this is a question of law.

[00:28:24] Speaker 03:
Well, the phone doesn't quite say it.

[00:28:27] Speaker 03:
It doesn't say plausible basis.

[00:28:28] Speaker 02:
No, Thune does not say that at all and I would suggest that the language in Thune relative to 416 is simply dicta and not controlling upon this court because this court was not looking at the language of 416 to determine the interpretation of 3.321b.

[00:28:48] Speaker 02:
Do we reject plausible basis for 3.321b?

[00:28:54] Speaker 02:
Well, certainly, I believe that's within your discretion, Your Honor.

[00:28:57] Speaker 03:
I do not... In Thun, isn't that what the court did in Thun for 3.321b?

[00:29:03] Speaker 02:
They did.

[00:29:04] Speaker 03:
Thun argued for a plausible basis understanding of 3.321b, and this court rejected that.

[00:29:10] Speaker 02:
Right.

[00:29:11] Speaker 03:
They said extra schedule referral to the director.

[00:29:14] Speaker 02:
But based upon... That's correct.

[00:29:16] Speaker 03:
You think for 4.16b, that should be

[00:29:21] Speaker 03:
read and interpreted in a very different way, where now there should be a plausible basis of threshold injected into that regulation.

[00:29:30] Speaker 02:
I'm saying that the inbound court below said plausible basis in terms of the legal standard for making the referral to the director.

[00:29:39] Speaker 02:
There was no referral to the director in this case.

[00:29:42] Speaker 02:
Therefore, the rule in bowling was violated.

[00:29:47] Speaker 03:
Was this legal issue raised below to either the Veterans Court or the BBA?

[00:29:52] Speaker 03:
The question of how to understand 4.16B and whether or not there is a mere plausible basis threshold that should be interpreted into that regulation?

[00:30:01] Speaker 02:
No, Your Honor.

[00:30:02] Speaker 02:
What was argued below was that 4.16B was not correctly applied.

[00:30:07] Speaker 02:
On the merits?

[00:30:09] Speaker 02:
On the merit determination.

[00:30:10] Speaker 02:
On the basis that they did not have the authority to make the merit decision in the first instance.

[00:30:17] Speaker 02:
It was not, it didn't get down into the weeds of the type of discussion that we're having in this case because it seemed self-evident based upon the case law that the board was not able to make that decision in the first instance.

[00:30:33] Speaker 03:
Do you have a site in the joint appendix that I could look at to get the best understanding of what was raised below in the veterans court?

[00:30:45] Speaker 00:
While you're looking, you might want to take a look at appendix 183, which is page 12 of I think it's your brief.

[00:30:53] Speaker 00:
And in the first full paragraph, the sentence, there is no plausible basis in the record before the board to support a finding that Mr. Mayo was not enabled.

[00:31:05] Speaker 00:
That may be a typo.

[00:31:08] Speaker 00:
No, it's actually correct.

[00:31:09] Speaker 00:
was not enabled to secure and follow a substantially gainful occupation by reason of his service disconnected disability.

[00:31:16] Speaker 00:
That, I take it, was the thrust of your argument.

[00:31:18] Speaker 02:
Yes, Your Honor.

[00:31:18] Speaker 00:
That they should have sent it beyond.

[00:31:22] Speaker 02:
That the correct application of 416B required that outcome.

[00:31:26] Speaker 02:
And that the outcome, and that is in our opening brief below, Your Honor.

[00:31:29] Speaker 02:
It starts at page 167 to the end of the Joint Appendix at 184.

[00:31:41] Speaker 02:
Unless there's further questions from the panel.

[00:31:44] Speaker 03:
Okay.

[00:31:45] Speaker 03:
Thank you very much, Mr. Chairman.

[00:31:46] Speaker 03:
The case is submitted.