[00:00:00] Speaker 03:
We have four argued cases this morning.

[00:00:03] Speaker 03:
But before we go to the arguments, we have the pleasure of the admissions of our law parties to the bar of this court.

[00:00:11] Speaker 03:
And I think Judge O'Malley has a motion.

[00:00:15] Speaker 02:
Yes.

[00:00:15] Speaker 02:
I have the privilege of doing the first motion today.

[00:00:20] Speaker 02:
And I move the admission of DeMaio Cheyanne Gash, who goes by Cheyanne.

[00:00:26] Speaker 02:
He's a member of the bar and is in good standing with the highest courts of California and New York.

[00:00:32] Speaker 02:
And I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications.

[00:00:38] Speaker 02:
And I have more than just knowledge of his credentials, because he has been working with me throughout the course of this year.

[00:00:46] Speaker 02:
Cheyenne is much older than he looks, but he was a child prodigy, which is why his resume is as full and developed as it really is.

[00:00:57] Speaker 02:
He worked for about nine years or eight years as a programmer at Microsoft before even going to law school.

[00:01:05] Speaker 02:
He went to NYU.

[00:01:07] Speaker 02:
After law school, he clerked for Judge Grewal when he was a judge on the court in the Northern District of Ohio and then judged, not Ohio, that's me, Northern District of California.

[00:01:20] Speaker 02:
And then Judge DeVia, also for the Northern District of California, and then worked for a few years as an associate at a law firm before coming to the court.

[00:01:30] Speaker 02:
So he's had a lot of experience, and now he's had experience with us.

[00:01:35] Speaker 02:
And he's been a pleasure to have around and has really added a lot to chambers.

[00:01:40] Speaker 02:
So I move his admission with pleasure.

[00:01:44] Speaker 03:
Your motion is granted, Judge O'Malley.

[00:01:47] Speaker 03:
Mr. Gosch.

[00:01:48] Speaker 03:
Welcome to the bar of this court.

[00:01:52] Speaker 05:
Here is your right hand.

[00:01:54] Speaker 05:
Do solemnly swear that you will comport yourself as an attorney and counsel of this court, up rightfully and according to law, and that you will support the Constitution of the United States of America.

[00:02:05] Speaker 03:
Thank you.

[00:02:06] Speaker 03:
And I now have three motions.

[00:02:08] Speaker 03:
The first of these is I move the admission of my law clerk, Abigail Colella, who's a member of the bar.

[00:02:16] Speaker 03:
and is in good standing with the highest court of the state of New York.

[00:02:20] Speaker 03:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:02:26] Speaker 03:
Second, I move the admission of Laura Dalbaugh, who is a member of the bar and is in good standing with the highest court of the state of Tennessee.

[00:02:35] Speaker 03:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:02:42] Speaker 03:
And then finally, I move the admission of James Anglin Flynn,

[00:02:46] Speaker 03:
who's a member of the bar and is good standing with the highest courts of New York and the District of Columbia.

[00:02:52] Speaker 03:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:02:58] Speaker 03:
Now, that's the formal minimum necessary to get admitted to a bar.

[00:03:05] Speaker 03:
However, in the case of each of you, you far surpassed the minimum.

[00:03:11] Speaker 03:
You've been an enormous help to me this year.

[00:03:15] Speaker 03:
You have qualifications that pretend that you're going to do exceptionally well in your future.

[00:03:25] Speaker 03:
Two of you are going on to clerk on the DC Circuit, and Abby is going to join the firm.

[00:03:34] Speaker 03:
And you're all wonderful law clerks.

[00:03:37] Speaker 03:
It's been a great pleasure to have you this year.

[00:03:40] Speaker 03:
So with that said, you can now take the oath.

[00:03:46] Speaker 03:
Okay, our first case this morning is number 171686, Anuga versus O'Rourke.

[00:04:16] Speaker 03:
Uh, and Ms.

[00:04:19] Speaker 03:
Stitler.

[00:04:20] Speaker 03:
Is that how you pronounce it?

[00:04:21] Speaker 03:
Stitler.

[00:04:22] Speaker 01:
Stitler.

[00:04:24] Speaker 03:
Pardon me?

[00:04:24] Speaker 01:
Stitler.

[00:04:26] Speaker 03:
I'm sorry, I didn't know what you said.

[00:04:28] Speaker 01:
Stitler.

[00:04:29] Speaker 03:
Stitler.

[00:04:30] Speaker 03:
Ah, okay.

[00:04:33] Speaker 03:
Go ahead.

[00:04:34] Speaker 01:
May it please the Court.

[00:04:36] Speaker 01:
This appeal involves a single legal question.

[00:04:38] Speaker 01:
Did the Veterans Court use the correct test when it applied law of the case doctrine to avoid considering

[00:04:45] Speaker 01:
Ms.

[00:04:46] Speaker 01:
Anwar's arguments.

[00:04:48] Speaker 01:
The answer to that question is no.

[00:04:50] Speaker 01:
Under Section 7261, and indeed the government's own description of the law of the case doctrine in its brief, the Veterans Court cannot apply law of the case doctrine to avoid considering a new argument by a veteran.

[00:05:05] Speaker 01:
That's not the test the Veterans Court applied here.

[00:05:09] Speaker 01:
The Court never considered whether Ms.

[00:05:12] Speaker 03:
Anwar raised- Why can't the Veterans Court?

[00:05:15] Speaker 03:
use the law of the case.

[00:05:19] Speaker 01:
Section 7261 clearly lays out jurisdiction for the Veterans Court.

[00:05:23] Speaker 01:
It says the Veterans Court shall set aside factual findings that are clearly erroneous.

[00:05:30] Speaker 01:
And then Section 7261 also includes a number of express exceptions to that statutory mandate.

[00:05:36] Speaker 01:
There's an exception.

[00:05:38] Speaker 01:
The Veterans Court does not need to consider findings that are not material.

[00:05:41] Speaker 01:
The Veterans Court does not need to consider findings that are not

[00:05:44] Speaker 01:
necessary to the Veterans Court decision that are not presented by the veteran.

[00:05:49] Speaker 01:
But the statute does not include a law of the case exception.

[00:05:54] Speaker 02:
Did the Veterans Court, I know it mouthed the words law of the case, but did it really apply law of the case and say it couldn't go back and reconsider it?

[00:06:04] Speaker 02:
Or did it say, we're just not going to rethink something we already did?

[00:06:09] Speaker 01:
The Veterans Court said that it was applying law of the case to avoid consideration of an issue that had been previously adjudicated.

[00:06:15] Speaker 01:
It never considered whether those arguments were the same.

[00:06:19] Speaker 01:
And if it had, the arguments were different.

[00:06:20] Speaker 01:
And so the analysis that the Veterans Court applied in its first appeal is inapplicable to the arguments the Veterans Court made, that Ms.

[00:06:30] Speaker 01:
Anwar made in her second appeal.

[00:06:33] Speaker 01:
And so even if the Veterans Court had, as you suggest,

[00:06:39] Speaker 01:
applied law of the case, sort of mouth the words law of the case in order to bring in its analysis from earlier, that analysis would be inapplicable to the arguments the Veterans Court made.

[00:06:53] Speaker 01:
And under the express statutory language of Section 7261, that's not permitted because the Veterans Court needs to consider all of the factual challenges by the veteran.

[00:07:04] Speaker 02:
So there's never finality with respect to any conclusion that the Veterans Court reaches on a particular claim?

[00:07:12] Speaker 02:
Excuse me?

[00:07:13] Speaker 02:
So there's never going to be finality on a decision that the Veterans Court reaches with respect to a particular claim?

[00:07:20] Speaker 01:
No.

[00:07:21] Speaker 01:
Of course, if the Veterans Court reaches its final decision, there would be finality.

[00:07:24] Speaker 01:
But also, the statute includes these escape valves.

[00:07:28] Speaker 01:
For example, the materiality escape valve can be used

[00:07:32] Speaker 01:
to avoid considering the same argument or alternatively the Veterans Court could incorporate its analysis from earlier and avoid applying the same analysis.

[00:07:43] Speaker 04:
Well isn't that what law of the case is?

[00:07:45] Speaker 04:
It's we've already decided this and we're not going to reconsider it.

[00:07:49] Speaker 04:
That's just reincorporating its analysis from earlier.

[00:07:52] Speaker 01:
That's true but it only applies if the argument is the same.

[00:07:56] Speaker 04:
Well it seems, I'm a little confused by what you're saying about the argument the same because

[00:08:00] Speaker 04:
It seems to me you have a legal issue that they can't use law of the case at all based upon your reading of 7261.

[00:08:08] Speaker 04:
But then you're going on, and it seems to me you're suggesting they use law of the case incorrectly.

[00:08:13] Speaker 04:
Is that a different argument?

[00:08:16] Speaker 01:
I think they're related arguments.

[00:08:18] Speaker 01:
The first is that they can't use law of the case at all.

[00:08:21] Speaker 04:
At all.

[00:08:21] Speaker 04:
And the second is law of the case, as applied to the particular facts here, was done improperly.

[00:08:29] Speaker 01:
The second would be that they applied the wrong standard for law of the case.

[00:08:33] Speaker 04:
Assuming that... What wrong standard did they apply?

[00:08:36] Speaker 01:
They only considered whether Ms.

[00:08:38] Speaker 01:
Anwar's... had made... resolved... excuse me.

[00:08:43] Speaker 01:
They only considered whether Ms.

[00:08:45] Speaker 01:
Anwar's arguments pertained to the same issue.

[00:08:47] Speaker 01:
It never actually considered whether Ms.

[00:08:49] Speaker 01:
Anwar was making new arguments.

[00:08:51] Speaker 01:
What was really new about the argument?

[00:08:53] Speaker 01:
So in the first appeal, Ms.

[00:08:55] Speaker 01:
Anwar

[00:08:56] Speaker 01:
challenged the adequacy of the 2011 VA examination.

[00:09:00] Speaker 02:
Right.

[00:09:01] Speaker 02:
And they found out that it, and they concluded that it was inadequate.

[00:09:04] Speaker 01:
And her specific arguments related to that examination were that, among other arguments, was that there was no evidence of disability.

[00:09:18] Speaker 01:
And her second appeal, she challenged the same

[00:09:22] Speaker 01:
the same examination and the adequacy of that same examination.

[00:09:26] Speaker 01:
But she never, she raised a new argument and she challenged a different factual finding, excuse me, a different statement of the examiner in that argument, specifically whether the, specifically whether the,

[00:09:49] Speaker 01:
the examiner's statement that there was no evidence of service connection was correct.

[00:09:56] Speaker 01:
And so those are two separate arguments and the Veterans Court never considered that second argument.

[00:10:03] Speaker 01:
And under section 7261 and also the government's conception of law of the case, its description of law of the case in its own brief, law of the case can only be applied to

[00:10:16] Speaker 01:
arguments that have been previously raised not to sort of on this issue by issue basis and I There's a I could sense that there's a little bit of confusion maybe when I say this is the government's test for law of the case and it's different versus whether law of the case should be allowed at all and Here law of the case is not appropriate but in practice as the government describes law of the case that would be

[00:10:47] Speaker 01:
In different situations, for example, if Ms.

[00:10:50] Speaker 01:
Honwell had actually raised the same argument, then maybe the Veterans Court use of law of the case as a shorthand to incorporate its analysis from earlier would have been essentially harmless, because it would have already considered that argument.

[00:11:03] Speaker 01:
But that's not what happened here.

[00:11:05] Speaker 02:
Assuming they can apply law of the case, the second question of whether they did it properly, isn't that just applying

[00:11:17] Speaker 02:
the law to the facts and something that we don't have jurisdiction to review?

[00:11:20] Speaker 02:
I disagree.

[00:11:21] Speaker 01:
The second question is actually, what is the proper test for law of the case for the Veterans Court to apply?

[00:11:26] Speaker 01:
And that is a question that you have jurisdiction over, whether the Veterans Court applied the correct test.

[00:11:31] Speaker 01:
And then here, that question resolves around, is the correct test for law of the case in the Veterans Court context on an argument by argument basis or an issue by issue basis?

[00:11:45] Speaker 03:
And what do you contend that it is outside of the veteran's context?

[00:11:49] Speaker 01:
Excuse me?

[00:11:50] Speaker 03:
What do you think the test is outside of the veteran's context?

[00:11:55] Speaker 03:
If there's a tort case, for example, and there's a determination of liability on appeal and a remand for a new trial on damages, and in the interim, the plaintiff thinks up different arguments as to why

[00:12:11] Speaker 03:
are the defendant thinks of different arguments as to why there is no liability.

[00:12:15] Speaker 03:
Does the court have to consider those new arguments?

[00:12:18] Speaker 01:
There's some case law that suggests that outside of the Veterans Court context, it is on an issue by issue basis.

[00:12:24] Speaker 01:
And so the challenger can't raise new challenges, new arguments to challenge the same issue.

[00:12:33] Speaker 03:
But that's not the case.

[00:12:34] Speaker 03:
So what you're arguing is that basically that the veterans context ought to be different and that it ought to be

[00:12:41] Speaker 03:
on an argument-by-arguments basis rather than an issue-by-issue basis.

[00:12:45] Speaker 01:
That's correct.

[00:12:46] Speaker 01:
And the reason for that is Section 7261.

[00:12:48] Speaker 01:
And then, of course, the policy considerations underlying law of the case are different in the context of the Veterans Court than they are in other contexts.

[00:12:58] Speaker 04:
I mean, 7261 is just a general jurisdiction granting provision, isn't it?

[00:13:05] Speaker 01:
It's a general jurisdiction grant, but it's actually a little unusual compared to other jurisdiction grants in that

[00:13:09] Speaker 01:
there are a number of these express exceptions that really cabin in the... Like what?

[00:13:17] Speaker 01:
For example, the requirement that the Veterans Court shall consider factual findings unless they are necessary to its jurisdiction, unless they are not necessary to the Veterans Court, excuse me, or unless they are not presented by the veteran.

[00:13:34] Speaker 01:
There's also, the Veterans Court does not consider

[00:13:38] Speaker 01:
factual findings that are not adverse to the claimant.

[00:13:42] Speaker 01:
And so all of these express exceptions in the statute suggest that Congress actually intended to define the Veterans Court jurisdiction with more precision than in a normal case.

[00:13:56] Speaker 04:
Such as the Veteran Court.

[00:13:57] Speaker 04:
Is there anything in the legislative history to suggest that they're adopting a variant rule of law of the case, like the one you're suggesting?

[00:14:07] Speaker 01:
I think that the language of the statute is enough.

[00:14:10] Speaker 01:
You don't need to reach the legislative history here.

[00:14:14] Speaker 04:
But the language of the statute doesn't say anything about law of the case.

[00:14:17] Speaker 04:
I mean, isn't that a kind of background, very generally applicable legal principle that's applied to different courts and different tribunals across the federal system?

[00:14:29] Speaker 04:
Don't we assume that Congress is enacting legislation with that backdrop in place?

[00:14:34] Speaker 01:
I think you typically would, except in this case, the statute does include all these express exceptions that define the jurisdiction much more narrowly.

[00:14:45] Speaker 04:
And how does that work in your favor?

[00:14:46] Speaker 04:
If we think that Congress is enacting different rules for the Veterans Court by enacting these exceptions, then don't you think that if they didn't want law of the case to apply, they would have put that one into?

[00:15:00] Speaker 01:
Exactly, Your Honor.

[00:15:02] Speaker 01:
If they had one in law's case to apply, they could have included it expressly.

[00:15:05] Speaker 04:
No, if they didn't want it to apply.

[00:15:06] Speaker 04:
You said they put in a lot of explicit provisions that are different than general jurisdictional principles.

[00:15:15] Speaker 04:
So for the ones that they don't want to put in, don't we assume that Congress intended general principles to apply?

[00:15:21] Speaker 01:
I should be clear here.

[00:15:23] Speaker 04:
I mean, isn't that clear from the Supreme Court?

[00:15:26] Speaker 04:
decisions and Sanders and, I forget what the other one, where I think that this court initially adopted a different version of harmless error.

[00:15:36] Speaker 04:
And then the Supreme Court reversed and said, no, the general APA principles or the general common law, not common law, the APA principles of harmless error should apply.

[00:15:46] Speaker 04:
I mean, shouldn't that analysis apply the same way here?

[00:15:49] Speaker 01:
I don't think it should.

[00:15:50] Speaker 01:
And the reason is because, actually, the Congress adopted principles

[00:15:58] Speaker 01:
that are also common law principles.

[00:16:00] Speaker 01:
For example, this requirement that a finding be necessary to the court's decision or presented by the veteran.

[00:16:07] Speaker 01:
The requirement of the factual finding that is challenged be presented by the veteran suggests includes waiver in its jurisdictional statute.

[00:16:17] Speaker 01:
And that's a little bit unusual.

[00:16:18] Speaker 01:
And that's why we think that these common law concepts that aren't included

[00:16:27] Speaker 01:
should be the presumption that they do not apply in this context.

[00:16:35] Speaker 01:
If there are no questions, I'd like to reserve the rest of my time for rebuttal.

[00:16:39] Speaker 03:
Okay, thank you.

[00:16:41] Speaker 03:
Mr. Green.

[00:16:53] Speaker 00:
Good morning.

[00:16:54] Speaker 00:
May it please the court

[00:16:55] Speaker 00:
I'd like to first address the issue of the statute, 7261.

[00:16:59] Speaker 00:
And then I'd like to spend a few moments, if I may, explaining to the court that the arguments to which Ms.

[00:17:06] Speaker 00:
Induga contends the Veterans Court to properly apply the law of the case doctrine were actually raised and addressed by the Veterans Court in 2014.

[00:17:14] Speaker 00:
First, with respect to the statute, nothing on the face of the statute requires the Veterans Court to keep addressing an issue that it has resolved.

[00:17:25] Speaker 03:
hear the issue.

[00:17:27] Speaker 03:
Let's put that aside.

[00:17:28] Speaker 03:
Let's assume that if it's the identical argument that it doesn't really make any sense to say that the Veterans Court can't use law of the case to prevent it from keeping to revisit the same identical argument again and again.

[00:17:43] Speaker 03:
So let's put that aside.

[00:17:45] Speaker 03:
Her backup argument seems to be that if there is an identical issue but a different argument

[00:17:53] Speaker 03:
that that shouldn't fall under the law of the case doctrine for purposes of the Veterans Court, which is an argument that does seem to make a difference in the sense that if you have a resolution of service connection and you're trying to come back and argue for a different treatment of that, that's not something that's been considered before.

[00:18:21] Speaker 00:
Well, if I may, Your Honor, I'll answer that question by going directly to the argument that the Veterans Court addressed in 2014.

[00:18:28] Speaker 00:
And to do that, I want to refer the Court to page 102 of the Joint Appendix, if you have it handy, the last sentence of the last four paragraphs.

[00:18:38] Speaker 00:
And there, the Court said this.

[00:18:40] Speaker 00:
Moreover, the April 2010 and November 2011 examiners specifically mentioned that they reviewed the claims file, which contains all documents associated with a veteran's disability claim.

[00:18:51] Speaker 00:
And thus, the review of the claims file would necessarily include a review of the evidence purportedly overlooked.

[00:18:57] Speaker 00:
And what the Veterans Court here in 2014 is saying, consistent with what the examiner said in their opinions and consistent with what the board in 2010 stated in its instructions for the remand, is that if the document or evidence was in the claims file, the examiner considered it.

[00:19:16] Speaker 03:
Yeah, but your problem with that is that we have cases saying that we're not supposed to apply a harmless error doctrine that requires us to examine the facts and make factual determination.

[00:19:27] Speaker 03:
And that seems to be what you're asking us to do.

[00:19:29] Speaker 03:
What about the more general principle, the question of whether she's correct that in the veteran's context, the law of the case doctrine ought to be a bit different and ought to be argument-specific rather than issue-specific?

[00:19:43] Speaker 00:
So two points on that, Your Honor.

[00:19:46] Speaker 00:
The court can look at confined in a number of cases a recitation of the standard for law of the case that fits either side's argument.

[00:19:58] Speaker 00:
For example, in Augustine, this court said that which has been decided and didn't narrow it down to issues or arguments.

[00:20:05] Speaker 00:
I think it's a case specific analysis that the court needs to do.

[00:20:10] Speaker 00:
The second point I would say is your honor referred to a case by the Supreme Court

[00:20:15] Speaker 00:
I would refer this court to the Forche on Bonk opinion from 2002, in which the veteran urged this court to adopt a more lenient standard for waiver.

[00:20:27] Speaker 00:
And this court declined, stating that, in that respect, the veteran's court shouldn't be treated differently from any other court.

[00:20:37] Speaker 00:
And in making that determination, the court rejected the argument that the proclamant nature

[00:20:43] Speaker 00:
of the VA administrative system compelled this more lenient standard.

[00:20:49] Speaker 00:
So I would, to answer Your Honor's question, I would point the court to Forsey and also to the different ways that this court has stated this case.

[00:20:55] Speaker 03:
And your argument is it should be the same law of the case standard in the Veterans Court as elsewhere.

[00:21:00] Speaker 00:
Yes, Your Honor.

[00:21:01] Speaker 00:
And I've always understood issues to be broader than arguments, and I think Ms.

[00:21:07] Speaker 00:
Anwar's brief

[00:21:08] Speaker 00:
is a little confusing on that point, because on one page, she says something about referring to arguments, but then later says the same issue may encompass multiple arguments.

[00:21:19] Speaker 00:
And if she agrees that the standard applies to issues, then that would seem to cover all the arguments.

[00:21:25] Speaker 00:
And so I would refer the court also to Ms.

[00:21:28] Speaker 00:
Anwar's brief on that matter.

[00:21:30] Speaker 00:
But the reason why I brought this.

[00:21:32] Speaker 02:
But there's plenty of law that says you don't apply law of the case if an issue wasn't actually presented and considered.

[00:21:39] Speaker 00:
That's correct.

[00:21:40] Speaker 00:
And that's why I was bringing to the court's attention this excerpt from the 2014 Veterans Court decision.

[00:21:46] Speaker 00:
Because what the Veterans Court says here is that if a document or a statement was in the claims file, the examiners reviewed it.

[00:21:54] Speaker 03:
But wait.

[00:21:54] Speaker 03:
Now I'm confused.

[00:21:55] Speaker 03:
Because I thought your position was that if the issue was decided, that you can't come up with a new argument to revisit the issue.

[00:22:04] Speaker 03:
That the Veterans Court's entire reply will have the case.

[00:22:07] Speaker 03:
under those circumstances.

[00:22:09] Speaker 03:
And now you seem to be waffling about that.

[00:22:12] Speaker 03:
So let's suppose that there is an issue that was decided by the Veterans Court, but that there's a new argument the second time around.

[00:22:20] Speaker 03:
And I know you don't think that's true here.

[00:22:22] Speaker 03:
But let's assume hypothetically that that is the case.

[00:22:25] Speaker 03:
Is that new argument barred by law of the case?

[00:22:28] Speaker 00:
We believe it is.

[00:22:34] Speaker 00:
Again, here, and I apologize for the cute confusion, but here, really, the issue and the argument are the same.

[00:22:41] Speaker 00:
So Ms.

[00:22:43] Speaker 00:
Anwar.

[00:22:44] Speaker 04:
But I think the hypothetical suggests that they're different things.

[00:22:48] Speaker 04:
For instance, let's say you have a finding of no service connection.

[00:22:52] Speaker 04:
And the Veterans Court affirms no service connection for a particular alleged disability, but remands on other issues.

[00:23:01] Speaker 04:
And on remand, the veteran,

[00:23:04] Speaker 04:
makes, based on the existing record evidence, a different argument for service connection, pointing to different examination reports or the life that had never been urged before, never been considered by the board, never been considered by the Veterans Court.

[00:23:21] Speaker 04:
That seems to me somewhat different than what's going on here, but suppose that happens.

[00:23:26] Speaker 04:
Would that be barred by law of the case?

[00:23:28] Speaker 00:
It would, Your Honor.

[00:23:29] Speaker 00:
This court has considered a very similar situation in the

[00:23:34] Speaker 00:
Dukas now case that we cite in our brief.

[00:23:37] Speaker 00:
There, the Veterans Court instructed that the veteran could receive only one rating under diagnostic code 5210.

[00:23:45] Speaker 00:
It said that the board, no matter what the veteran said on remand, that the board could only award, based on law of the case, the board could only award one disability rating under that diagnostic code.

[00:23:57] Speaker 00:
So I believe that question has been addressed by the court.

[00:24:01] Speaker 00:
Here, in this case, the argument in the issue really

[00:24:03] Speaker 03:
That sounds different.

[00:24:05] Speaker 03:
That doesn't sound like a case in which there was no diagnostic rating the first time around.

[00:24:11] Speaker 03:
And then there's an argument the second time around that there's a new ground for giving out a rating.

[00:24:19] Speaker 00:
In that case, I remember correctly, the veteran was claiming that two planes of motion in her shoulder were impaired.

[00:24:29] Speaker 00:
and was seeking two disability ratings under that same diagnosis.

[00:24:32] Speaker 03:
Yeah, but that's a different question, whether you've got two disability ratings or not.

[00:24:36] Speaker 03:
It doesn't seem to me to be a law case situation.

[00:24:41] Speaker 00:
The court in Dukas now respectfully, Your Honor, instructed the board, instructed that the board had to follow the law of the case of the Veterans Court.

[00:24:48] Speaker 00:
And that situation in the Veterans Court said only one disability rating was available.

[00:24:55] Speaker 02:
But the law of the case doctrine is discretionary, right?

[00:24:58] Speaker 02:
Correct.

[00:24:59] Speaker 02:
So there's no obligation to follow the law of the case.

[00:25:02] Speaker 00:
And that's absolutely right, Your Honor.

[00:25:04] Speaker 00:
And here, the issue in the argument, we're getting caught up in this language, but really the issue in the argument here is the same.

[00:25:13] Speaker 00:
In 2014, the Veterans Court addressed an argument by Ms.

[00:25:17] Speaker 00:
Conway that the examiners had failed to consider the evidence in the record that

[00:25:22] Speaker 00:
she believes supported finding her disability to be service-connected, specifically her own statement and the statement by her doctor from 2009.

[00:25:31] Speaker 00:
In 2016, the Veterans Court addressed the very same argument.

[00:25:36] Speaker 00:
Ms.

[00:25:36] Speaker 00:
Anwar contended that the examiners had overlooked those same statements.

[00:25:41] Speaker 00:
She just cast the argument in a slightly different way in saying that, whereas in earlier she had said the examiners didn't recognize the disability at all.

[00:25:50] Speaker 00:
In the later arguments, she said the examiners didn't recognize, didn't see any evidence to support a finding that there was a service connection.

[00:25:58] Speaker 00:
But in 2014, the Veterans Court settled the issue of, settled this issue by saying, look, if it's in the claims file, the examiners reviewed it.

[00:26:08] Speaker 00:
And so any evidence that you contend was overlooked was actually reviewed.

[00:26:12] Speaker 02:
But when you say they settled this question, that sentence in the 2014 was saying that if it was in the claims file and it related to whether there was a disability, we'll assume they looked at it.

[00:26:26] Speaker 02:
It never raised the question of service connection, right?

[00:26:33] Speaker 00:
In Ms.

[00:26:34] Speaker 00:
Anwar's brief that the Veterans Court was responding to, she did refer the court to her statements that a service connection existed for her injury or for her disability.

[00:26:45] Speaker 00:
And so in both appeals to the Veterans Court, she was pointing to the very same statements.

[00:26:53] Speaker 00:
And the Veterans Court in 2014 said, no, look, the examiners considered that evidence.

[00:27:03] Speaker 00:
And so we believe that the law of the case doctrine, the availability of the law of the case doctrine, has already been settled.

[00:27:11] Speaker 00:
And Augustine, Hudson, and Joyce, this court's already stated that the Veterans Court may rely on the doctrine.

[00:27:18] Speaker 00:
And if the court agrees with us, at this point, we submit the only thing the court has left to do is dismiss this appeal for lack of jurisdiction.

[00:27:25] Speaker 00:
Because we are getting into the application of law to fact, which of course, this court lacks jurisdiction to review.

[00:27:32] Speaker 00:
to the extent that the court considers the merits of the challenge to the Veterans Court's application of law of the case doctrine, the Veterans Court did not decline to consider any arguments in 2016.

[00:27:49] Speaker 00:
In 2014, it had already considered the argument that the incident overlooked the evidence.

[00:27:53] Speaker 02:
But did it have before it in 2014 the argument that

[00:27:56] Speaker 02:
her statements as an RN are materially different than just the statement of somebody else who's claiming an injury.

[00:28:08] Speaker 02:
That in other words, that there is a material difference in terms of the weight that should be given to her statements regarding the connection, the service connection.

[00:28:20] Speaker 00:
If I understand the question, you're asking if in 2014 she argued whether her

[00:28:25] Speaker 00:
Her own statement should be given dispositively or more probatively.

[00:28:29] Speaker 00:
I believe so.

[00:28:31] Speaker 00:
I want to look to confirm.

[00:28:33] Speaker 02:
I didn't see anything in the 2014 decision that says it addressed that.

[00:28:40] Speaker 00:
Well, in her, actually, I will refer the court to page 72 of the joint appendix under the heading Nexus Between the Veterans, Service, and Disability.

[00:28:53] Speaker 00:
There is an entire paragraph where she describes the evidence that she believes establishes a service connection and included in that paragraph is her own statement of her disability being service connected.

[00:29:08] Speaker 00:
So that was certainly an issue that the Veterans Court in 2014 was aware of.

[00:29:13] Speaker 00:
But in fact, the Veterans Court in 2016 did not apply the law of the case doctrine to that argument if it was raised in 2014 because

[00:29:21] Speaker 00:
the Veterans Court's 2016 decision noted that Ms.

[00:29:26] Speaker 00:
Anwar was competent to provide that opinion.

[00:29:39] Speaker 00:
no further questions for me we would respectfully request for the reasons stated today in our briefs that court either dismiss this appeal or an alternative firm judgment in favor of the secretary.

[00:29:50] Speaker 00:
Thank you.

[00:29:56] Speaker 03:
Ms.

[00:29:56] Speaker 03:
Stidler.

[00:30:01] Speaker 01:
Your Honor, the government in its oral argument asks this court to make fact findings.

[00:30:06] Speaker 01:
Fact findings it is not permitted to make

[00:30:09] Speaker 01:
under its jurisdiction.

[00:30:11] Speaker 01:
The Veterans Court never considered whether Ms.

[00:30:15] Speaker 01:
Anwar raised new arguments in her second appeal.

[00:30:18] Speaker 01:
You can see that on APPX 3.

[00:30:21] Speaker 01:
All it considered was whether the issue had already been adjudicated.

[00:30:25] Speaker 01:
Based on that, the proper remedy here is remand.

[00:30:29] Speaker 01:
There's no need for this court to consider whether Ms.

[00:30:33] Speaker 01:
Anwar's 2014 argument versus her 2016 arguments were different

[00:30:38] Speaker 01:
whether there were new factual findings by the board.

[00:30:40] Speaker 01:
That is a question for the Veterans Court to make.

[00:30:48] Speaker 04:
This sounds an awful lot like to me, like you're quibbling with the Veterans Court's conclusion that it had already addressed this same argument, and it was bound by the law of the case.

[00:31:00] Speaker 04:
Whether it considers it sufficiently similar to be bound by the law of the case,

[00:31:05] Speaker 04:
is factual, isn't it?

[00:31:06] Speaker 04:
And therefore, it's outside of our jurisdiction.

[00:31:09] Speaker 01:
I don't agree.

[00:31:10] Speaker 01:
I think that our only argument, well, obviously we disagree with their application of law of the case, but we're not asking this court to re-examine that.

[00:31:19] Speaker 01:
The way that they applied law of the case is very clear.

[00:31:22] Speaker 01:
They say the court agrees that the court previously adjudicated the adequacy of the examination, and it will not entertain the appellant's attempts to re-litigate that issue.

[00:31:31] Speaker 01:
There are no analysis and no fact findings related to the specific arguments presented.

[00:31:37] Speaker 04:
But just what you read in your description of it sounds like application of law to fact.

[00:31:42] Speaker 01:
I think there is a dispute here over the proper standard for law of the case, whether it applies to just issues or whether it applies to arguments.

[00:31:51] Speaker 01:
And they applied the law of the case as if it precluded an issue by issue basis, not an argument by argument basis, which under section 7261

[00:32:01] Speaker 01:
And as I mentioned earlier, even the government's description of law in the case.

[00:32:05] Speaker 04:
So if we conclude that it applies to an issue by issue basis, then we should either dismiss or affirm.

[00:32:15] Speaker 01:
I would, yes.

[00:32:17] Speaker 01:
I think that probably the correct thing to do would be to affirm, because there has been a challenge to the test.

[00:32:26] Speaker 01:
But that's correct.

[00:32:27] Speaker 01:
So given that the,

[00:32:30] Speaker 01:
But assuming that you agree that law of the case is on an argument by argument basis, the proper decision is to remand so that the Veterans Court can determine whether Ms.

[00:32:41] Speaker 01:
Anwar raised a new argument in her second appeal.

[00:32:44] Speaker 01:
For this reason, we request that the court remand this case.

[00:32:48] Speaker 03:
OK, thank you.

[00:32:49] Speaker 03:
Thank both counsel.

[00:32:50] Speaker 03:
The case is submitted.