[00:00:04] Speaker 04:
The first arguing case this morning, there are two consecutively.

[00:00:10] Speaker 04:
The first one is No.

[00:00:11] Speaker 04:
17-1840, Poole v. Wilkie.

[00:00:14] Speaker 04:
Mr. Atty.

[00:00:15] Speaker 04:
Atty.

[00:00:23] Speaker 00:
May it please the Court.

[00:00:25] Speaker 00:
Practically speaking, there is only one question in this particular appeal.

[00:00:32] Speaker 00:
Does the Court

[00:00:33] Speaker 00:
the Veterans Court have jurisdiction or lack jurisdiction over the July 2016 board decision in the companion case.

[00:00:41] Speaker 00:
As goes the court's decision in that case, so goes the court's decision in this case.

[00:00:47] Speaker 00:
In any scenario, in answering that question, this court need not reach the merits to decide whether the Veterans Court used the correct legal standard in deciding a writ of prohibition.

[00:01:01] Speaker 00:
In the first scenario, the court could say in the companion case that the Veterans Court did not have jurisdiction over the July 2016 BVA decision.

[00:01:10] Speaker 00:
And in that case, the only element that we argue exists for a writ of prohibition in a jurisdictional context is the question of jurisdiction.

[00:01:19] Speaker 00:
Since that question disappears or fades away with the denial of jurisdiction, there's no need to issue or address or reach the merits of what the elements are of a writ of prohibition.

[00:01:30] Speaker 01:
request in the first case for a writ of prohibition, still a viable case.

[00:01:36] Speaker 01:
Isn't this moot?

[00:01:37] Speaker 01:
You've asked for a writ of prohibition to enjoin the RO from going forward, but they've already gone forward.

[00:01:48] Speaker 00:
There is, if I'm understanding your question, Judge Lynn, there's one scenario where the court would need to consider a writ of prohibition.

[00:01:59] Speaker 00:
And it's not the merits that would be necessary.

[00:02:01] Speaker 00:
It's whether or not the circumstances have changed.

[00:02:04] Speaker 00:
Because the board went ahead and developed this case on remand while we were arguing for jurisdiction at the Veterans Court, they have essentially usurped the court's jurisdiction.

[00:02:16] Speaker 00:
That is not an issue if the court says there's no jurisdiction on the companion case, because then it just kind of moots the issue.

[00:02:25] Speaker 00:
But if the court finds that there is jurisdiction,

[00:02:29] Speaker 00:
It also, it not really moots it, but it becomes a question of whether Cerullo applies.

[00:02:34] Speaker 01:
But what, what, what relief did you request in your real control of the issue?

[00:02:41] Speaker 00:
We asked the Veterans Court to tell the board not to develop the issue that we were appealing and to preserve the status quo.

[00:02:49] Speaker 00:
But that issue has already been developed.

[00:02:52] Speaker 00:
I would disagree respectfully, Your Honor.

[00:02:54] Speaker 00:
The issue that was developed, and we would not have probably appealed to this Court

[00:02:58] Speaker 00:
on this prohibition issue, had the February 2017 supplemental statement, a case that was issued on remand, addressed the actual issue that was remanded.

[00:03:08] Speaker 00:
So the court remanded the board.

[00:03:12] Speaker 00:
The board remanded back to the regional office to consider this question of whether or not the veteran's lymphoma, which caused his death, was directly related to service.

[00:03:22] Speaker 00:
That was the remanded issue.

[00:03:24] Speaker 02:
No, I don't think that's true.

[00:03:26] Speaker 02:
The question is whether, the central question here is whether there's a final judgment that with respect to one of these claims that allows you to go to the Veterans Court or whether there's not a final judgment in which case you can't go.

[00:03:48] Speaker 02:
And if you look at

[00:03:50] Speaker 02:
Appendix 78, which is the board remand from 2016, it looks to me as though they remanded both theories or both claims for further development.

[00:04:02] Speaker 02:
Why is that wrong?

[00:04:04] Speaker 00:
I read the board decision a little bit differently, Your Honor.

[00:04:07] Speaker 00:
I read the board decision.

[00:04:08] Speaker 00:
It talked, and I believe it was the early part, and I can pull it out and get you the exact citations to the page numbers.

[00:04:15] Speaker 00:
I have it in front of me, a little bit of A78.

[00:04:18] Speaker 00:
It initially talked about that before the first round, actually the second round before the board in the 2014 decision that the board... Remanded for both, right?

[00:04:29] Speaker 00:
Correct.

[00:04:29] Speaker 02:
And that... And then when they do the subsequent remand, which I guess is set forth at A80, they say that the Schmidt opinion should be considered, right?

[00:04:45] Speaker 02:
But the Schmidt opinion

[00:04:46] Speaker 02:
is limited to the shoulder theory, isn't it?

[00:04:50] Speaker 00:
It's not, Your Honor.

[00:04:51] Speaker 00:
The Schmidt opinion addressed several different theories of service connection of the cause of death.

[00:04:57] Speaker 00:
It said one theory was that it materially contributed, that the service-connected shoulder injury materially contributed to the cause of death from lymphoma because it prevented the ability to get the full benefit of the lymphoma treatments.

[00:05:11] Speaker 00:
And as a result, he died from a lymphoma that he probably would have been cured.

[00:05:15] Speaker 00:
That was one theory that Dr. Schmidt opined about.

[00:05:18] Speaker 00:
She also opined that there was a direct connection to the shoulder injury and that she argued that the, or she opined that the shoulder injury led to the lymphoma as a matter of medical causation or medical nexus.

[00:05:34] Speaker 00:
And those are two separate issues.

[00:05:36] Speaker 00:
What the mold?

[00:05:38] Speaker ?:
Go ahead.

[00:05:39] Speaker 04:
I'm sorry.

[00:05:39] Speaker 04:
Your theory then is that it should not have been remanded, should have been decided on the record.

[00:05:45] Speaker 04:
And if, in fact, the record was inadequate, because it was one-sided, then everything's over.

[00:05:53] Speaker 04:
Are you better off?

[00:05:55] Speaker 04:
Would you have been better off?

[00:05:58] Speaker 04:
If I'm understanding correctly, Judge, you're saying that... I'm trying to understand what, with this writ of prohibition, what the goal would have been had it not been remanded.

[00:06:13] Speaker 00:
The writ of prohibition was meant to protect the issue that we were appealing to the Court.

[00:06:19] Speaker 00:
We see them as two separate issues.

[00:06:20] Speaker 00:
We see the issue being remanded as this question of the direct link between lymphoma and military service.

[00:06:26] Speaker 00:
That was the remanded issue.

[00:06:27] Speaker 00:
We see the issue that was denied by the board in that July 2016 decision as a denial.

[00:06:35] Speaker 00:
You don't need to develop that first remanded issue if, in fact, your

[00:06:41] Speaker 00:
unless you're denying the other issue, which is the one that Dr. Schmidt specifically opined about, saying that the treatment from lymphoma was not, he was not able to get the full benefit of the treatment from lymphoma because of the shoulder injury.

[00:06:54] Speaker 02:
Yeah, but what's the basis for saying that that claim was rejected?

[00:07:00] Speaker 02:
It seems to me

[00:07:01] Speaker 02:
that in remanding, they're very clear to consider the opinion of Dr. Schmidt, which came in 2016 after the 2014 remand.

[00:07:16] Speaker 02:
And why are they not supposed to consider both theories on the remand?

[00:07:21] Speaker 00:
I think the way I read the board decision, Your Honor, is that it didn't talk about reviewing the Dr. Schmidt opinion in the context of

[00:07:30] Speaker 00:
the issue that we're appealing.

[00:07:31] Speaker 00:
It talked about reviewing it.

[00:07:32] Speaker 02:
It doesn't distinguish.

[00:07:34] Speaker 02:
It's very clear that colleges must address the opinion offered by Dr. Schmidt.

[00:07:41] Speaker 02:
And it goes on and is clear that that opinion has to be considered.

[00:07:46] Speaker 02:
And that opinion primarily addresses the shoulder theory.

[00:07:52] Speaker 00:
In the context of the board remand, though, saying to address the question of direct service connection, the mention of Dr. Schmitz or reviewing Dr. Schmitz's opinion

[00:08:00] Speaker 00:
necessarily becomes related to that.

[00:08:02] Speaker 00:
And so she rendered several opinions on several issues.

[00:08:05] Speaker 00:
And if the board had come down and said, we also want to have them comment on whether or not the shoulder injury contributed to the cause of death from lymphoma because it didn't allow him to take full benefit of lymphoma treatments, then we probably wouldn't be here today because I would agree with you that it directly addressed and directly remanded.

[00:08:26] Speaker 00:
Certainly wouldn't be here on the writ of prohibition.

[00:08:28] Speaker 00:
We might still be here on the jurisdictional question

[00:08:30] Speaker 00:
in the companion case, because that's a slightly different issue.

[00:08:34] Speaker 00:
I don't understand that.

[00:08:35] Speaker 02:
I mean, if the remand covered both theories, there's nothing wrong with what the Veterans Court did and no basis for setting the decision aside.

[00:08:46] Speaker 02:
Isn't that correct?

[00:08:48] Speaker 00:
I don't.

[00:08:48] Speaker 00:
This kind of gets into the jurisdictional argument in the companion case, Your Honor.

[00:08:55] Speaker 00:
The fundamental flaw in that decision on that

[00:08:58] Speaker 00:
piece of the companion case.

[00:09:00] Speaker 00:
But it addressed my statement.

[00:09:02] Speaker 00:
Is that not correct?

[00:09:03] Speaker 02:
If, in fact, the board remanded to have both theories considered, there's nothing wrong with the decision of the Veterans Court.

[00:09:19] Speaker 00:
Yes.

[00:09:20] Speaker 00:
We would still argue that there is something wrong with that because

[00:09:23] Speaker 00:
because of the fact that we put into evidence an opinion which addresses a issue which the board should decide whether or not to accept that opinion under 5125.

[00:09:35] Speaker 00:
And remanding it to get an additional opinion on that issue is, in our opinion, development to deny.

[00:09:42] Speaker 00:
Now, that gets into the merits of what the board did.

[00:09:46] Speaker 02:
That's not a final decision, right?

[00:09:49] Speaker 02:
Because then it would just be a remand on all the issues.

[00:09:52] Speaker 02:
And we don't have jurisdiction to review something which is not final.

[00:09:58] Speaker 00:
This court always has jurisdiction to review a decision on jurisdiction by the Veterans Court.

[00:10:04] Speaker 00:
And we believe that the Veterans Court erred in saying that they do not have jurisdiction over a final decision.

[00:10:09] Speaker 00:
7252 is clear in talking about jurisdiction extends to decisions, and the issue of finality

[00:10:16] Speaker 00:
only comes into play when we're talking about the timeline under 7266.

[00:10:20] Speaker 00:
That's the only time finality comes into play.

[00:10:22] Speaker 00:
I'm sorry, I really don't understand what you're saying.

[00:10:25] Speaker 02:
If there's a remand here to consider both issues, what is it that's wrong?

[00:10:31] Speaker 02:
What should the Veterans Court have done?

[00:10:34] Speaker 00:
The Veterans Court should have

[00:10:35] Speaker 00:
allowed the appeal to proceed on the board's failure to address the medical opinion that we presented.

[00:10:42] Speaker 00:
We presented a competent, credible medical opinion establishing... Sure, and they said, go consider it.

[00:10:47] Speaker 00:
The board doesn't have the authority to go back and get evidence to corroborate a medical opinion.

[00:10:52] Speaker 00:
In fact, 5125 says that unless there's some basis for finding it lacks competence or credibility, which they never articulated any basis,

[00:11:00] Speaker 00:
that they have the discretion to accept that.

[00:11:02] Speaker 00:
And we believe they should.

[00:11:04] Speaker 00:
And that's the issue that we are appealing in the substance of the companion case.

[00:11:08] Speaker 00:
When we get to the merits of the companion case, we're appealing that the court should have entertained whether or not it was proper to remand or proper to address the theory that Ms.

[00:11:20] Speaker 00:
Poole

[00:11:22] Speaker 00:
raised, which is the service connection of the, I'm getting myself confused now a little bit, but that's the portion that we wanted the court to consider was whether or not the board acted properly in remanding to consider its theory while there is evidence of a theory that could establish service connection and end the claim right there and the board made no comment on the credibility or competency of that opinion.

[00:11:44] Speaker 01:
Is it your position that the board made a decision on your theory of the case?

[00:11:51] Speaker 00:
Yes, that is our opinion.

[00:11:53] Speaker 00:
Where is that decision?

[00:11:55] Speaker 00:
There are no words in that particular July 2016 that says... Usually that's how the board decides things.

[00:12:02] Speaker 00:
Yes, 7104D provides three elements that shall be in a board decision.

[00:12:06] Speaker 00:
Adequate reasons and bases is 7104D1 and 7104D3 says that there must be a grant of appropriate relief or denial of relief.

[00:12:17] Speaker 00:
Now when the court

[00:12:18] Speaker 00:
looks at cases where the board has not put in that first element, that reasons are bases.

[00:12:22] Speaker 00:
The court has never, to my knowledge, come back and said, we don't have jurisdiction because the board didn't address reasons and bases.

[00:12:29] Speaker 00:
They say we have jurisdiction, but they eventually remand it back so that they can get a clear decision to review.

[00:12:35] Speaker 01:
But even if there wasn't a fulsome explication of their reasoning, there had to have been a decision.

[00:12:43] Speaker 01:
Where is the decision articulated in the board's opinion?

[00:12:48] Speaker 00:
The decision in the board's opinion by making a decision to remand for a legal theory that does not need to be developed unless it is denying the other theory.

[00:12:57] Speaker 00:
That's the decision.

[00:12:58] Speaker 01:
It does not.

[00:12:58] Speaker 01:
So you're saying they implicitly deny your theory.

[00:13:03] Speaker 00:
I'm saying that they did not come out and say we are denying.

[00:13:06] Speaker 00:
I'm not saying they implicitly denied it.

[00:13:08] Speaker 00:
I'm saying they did not explicitly.

[00:13:10] Speaker 00:
And I think there's a subtle difference there because I think that it goes to the heart of the court's jurisdiction under 7252.

[00:13:15] Speaker 00:
The idea was to

[00:13:17] Speaker 01:
take the BVA and the secretary out of this splendid isolation from judicial review and to allow the court to review decisions of the board and the board can't... How can you say that in light of the fact that in the board they made it very clear that in the remand that there was no specific theory identified or set forth.

[00:13:40] Speaker 01:
They simply requested that Dr. Schmidt's opinion be reviewed completely and

[00:13:48] Speaker 01:
on whatever issue happens to be present.

[00:13:54] Speaker 00:
In 2009, the board issued a decision that the court came back in a memorandum decision and said, you didn't address the issue of 1310 DIC, of Section 1310 DIC.

[00:14:05] Speaker 00:
The silence by the board in that case did not deprive the court of jurisdiction.

[00:14:09] Speaker 00:
In fact, it gave jurisdiction and it was symbolic of error.

[00:14:13] Speaker 00:
In 2014, when the board issued a decision that didn't address the adequacy

[00:14:18] Speaker 00:
of the medical opinion as it was supposed to under the terms of its own remand.

[00:14:22] Speaker 00:
The court looked at that and didn't say that this is we lack jurisdiction because the court was silent on or the board was silent on this.

[00:14:29] Speaker 00:
We have jurisdiction and the board's required to address it.

[00:14:32] Speaker 00:
And we say the same thing here is that even though the board did not come out and say we are denying Ms.

[00:14:37] Speaker 00:
Poole's legal theory, they effectively did just that and that's what she's appealing.

[00:14:42] Speaker 00:
The board cannot hide and evade judicial review by choosing not to express a decision

[00:14:48] Speaker 00:
In the same way, it can't evade judicial review by choosing not to express reasons and bases under 7104D1.

[00:14:53] Speaker 01:
Well, you think you will have judicial review ultimately when the case is fully decided, which I understand it has been.

[00:15:02] Speaker 01:
And to that extent.

[00:15:03] Speaker 01:
So you have a chance to review all of these issues, including your theory and whatever other theories are contained in that decision, correct?

[00:15:13] Speaker 00:
To that extent, it's a question of justiciability.

[00:15:16] Speaker 00:
And that's what we're saying is that there's a fine difference.

[00:15:18] Speaker 00:
If we go back and look at all these decisions, and I can get into this more in the companion case, but if we look at all these decisions, whether it's Ledford, whether it's Howard, whether it's Kirkpatrick, whether it's Tyroos, the driving concern underlying all those are issues that are traditionally justiciability and not jurisdiction.

[00:15:36] Speaker 02:
Under your theory, you're creating a terrible situation for veterans, which is addressed to some extent by Judge Newman's dissent in Tyroon.

[00:15:45] Speaker 02:
You're saying that you have to parse these decisions and look for an implicit denial.

[00:15:51] Speaker 02:
And if there's an implicit denial of a claim, you have to seek review at that time or forfeit the ability to do so later.

[00:16:02] Speaker 02:
So it seems to me you're creating a nightmare for veterans and their counsel trying to figure out where there's an implicit denial of a claim that they have to appeal immediately or they can wait.

[00:16:15] Speaker 02:
Whereas if you look for explicit language, at least somebody can tell that there's been a decision on the claim and that they have an obligation to appeal.

[00:16:25] Speaker 00:
And two things to that, Judge.

[00:16:28] Speaker 00:
The first thing is that the board can choose what it writes and doesn't write.

[00:16:30] Speaker 00:
And so requiring it to put into writing a decision granting or denying relief, it can evade judicial review by not doing that.

[00:16:39] Speaker 00:
But the second piece of that is we don't think that we're creating confusion for veterans or difficulty for veterans.

[00:16:44] Speaker 00:
What we think we're doing in this argument

[00:16:46] Speaker 00:
is we are opening up the opportunity for the- You know what's interesting?

[00:16:49] Speaker 02:
Under Tyrone, if there's a final decision with respect to a claim, you have to appeal it right then.

[00:16:57] Speaker 02:
You can't wait.

[00:16:58] Speaker 02:
So under your theory, in this case, where you agree there's no explicit statement, you're creating a situation where the veteran must read that decision, find an implicit denial, and appeal immediately at the risk of forfeiting the claim by not appealing.

[00:17:15] Speaker 02:
No, Your Honor, we're not saying that because of the fact that Tyrone says, isn't it, that if there's a final decision with respect to a claim, you've got to appeal.

[00:17:24] Speaker 00:
Tyrus said if there's a clear and definitive denial and within those cases where there's not a clear and definitive denial.

[00:17:30] Speaker 02:
So we're going to be trying to decide whether there's a clear and definitive denial in which case you have to appeal or whether there's something less than a clear and definitive denial in which case you may appeal but don't have to?

[00:17:40] Speaker 00:
This court should not decide that, Your Honor.

[00:17:42] Speaker 00:
The Veterans Court should under the theory of justiciability.

[00:17:45] Speaker 02:
You're creating a distinction.

[00:17:47] Speaker 02:
So that the veteran has to say, well, is this a clear denial or not a clear denial?

[00:17:51] Speaker 02:
And maybe I have to appeal if it's a clear denial, but I don't have to appeal if it's not a clear denial?

[00:17:56] Speaker 02:
I mean, seriously, what a mess.

[00:17:58] Speaker 00:
I don't see it the same way, Your Honor, because I see the veteran being faced with a decision from the board that may or may not be clear.

[00:18:06] Speaker 00:
And if it's clear, then this isn't an issue.

[00:18:07] Speaker 00:
Tyreuse controls.

[00:18:08] Speaker 00:
We know what a final decision is based on Tyreuse.

[00:18:10] Speaker 00:
But if it's not clear, the veteran is in the conundrum that Judge Newman talked about in the Tyreuse dissent.

[00:18:15] Speaker 00:
And that's resolved by saying that 7252 covers all decisions of the board and let the court sort out the justiciability.

[00:18:22] Speaker 00:
Is it ripe?

[00:18:23] Speaker 00:
Is it moot?

[00:18:23] Speaker 00:
Has a remedy been exhausted?

[00:18:26] Speaker 00:
All of those different questions that the Veterans Court is in a great position, a far better position than this court to address those because of the sheer numerosity of the decisions it faces.

[00:18:36] Speaker 04:
Just to be sure I understand your position, you would foreclose the possibility of confirmatory

[00:18:45] Speaker 04:
medical evidence to confirm service connection and take the chance that as a final decision on facts which we can't review, that the Veterans Court would decide against the evidence that's been provided as being too equivocal or indecisive or whatever they might choose to say, that that seems to be what you're asking for.

[00:19:15] Speaker 04:
And perhaps as a view as to how to approach these complex issues, something can be said for it.

[00:19:26] Speaker 04:
But isn't that where you are taking us?

[00:19:31] Speaker 04:
That if, in fact, we granted your request for prohibition, then the additional evidence, which was not in your favor, would not have been obtained.

[00:19:46] Speaker 04:
and that would end it.

[00:19:48] Speaker 04:
You're saying you necessarily might win, but that's hard to say.

[00:19:52] Speaker 04:
Let's hear from the other side.

[00:19:56] Speaker 04:
Yes, Your Honor.

[00:20:09] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:20:12] Speaker 03:
On this question of the rate of prohibition,

[00:20:15] Speaker 03:
The only question, legal question, is whether the Court was correct to deny that.

[00:20:21] Speaker 03:
The Court was for the reasons that this panel has identified.

[00:20:26] Speaker 03:
There has been no final decision.

[00:20:28] Speaker 03:
There's been no decision.

[00:20:29] Speaker 03:
There's been only a remand order.

[00:20:30] Speaker 03:
And under Kirkpatrick and Tyreuse, a remand order is not appealable.

[00:20:35] Speaker 04:
Well, they say the remand was improper.

[00:20:39] Speaker 04:
Isn't that what would have to be decided in order to grant the writ?

[00:20:43] Speaker 04:
Doesn't that underlie the request?

[00:20:45] Speaker 03:
that does underlie the request, but the standard for issuing the writ has two prongs.

[00:20:50] Speaker 03:
One is a clear and indisputable right, and whether a remand is improper, it would have to be a clear and indisputable right.

[00:21:01] Speaker 03:
So the remand would clearly and indisputably have been improper.

[00:21:04] Speaker 03:
But more importantly, Your Honor, the there needs to be no alternate way of obtaining relief.

[00:21:11] Speaker 03:
And here there's the

[00:21:13] Speaker 03:
avenue of direct appeal that Ms.

[00:21:14] Speaker 03:
Poole can always avail herself of when, if for whatever reason her claim is denied, she can appeal that as all the veterans cases that come before this court do.

[00:21:25] Speaker 03:
Typically in that order, she can appeal it to the Veterans Court and then up to this court.

[00:21:29] Speaker 03:
So there's no reason to issue the writ because basically they're seeking a substitute for the standard of valid process.

[00:21:45] Speaker 03:
Your Honor, our position is there's only one theory, and the remand covered that.

[00:21:51] Speaker 02:
There are two theories.

[00:21:52] Speaker 02:
One is the shoulder injury, which was service-connected, prevented her husband from having the good health that would have prevented the lymphoma.

[00:22:06] Speaker 02:
The other one is direct connection to the lymphoma.

[00:22:09] Speaker 02:
Both of those theories were remanded, right?

[00:22:15] Speaker 02:
Your Honor, it's easy.

[00:22:17] Speaker 02:
Why is the answer not yes?

[00:22:19] Speaker 03:
The answer is because our position is that the question that was remanded is whether the shoulder injury caused the lymphoma.

[00:22:28] Speaker 03:
Now, they say that there are two different theories.

[00:22:30] Speaker 03:
Our position is that there's only

[00:22:34] Speaker 03:
There may be different theories, but there's only one question that was remanded for additional evidence.

[00:22:38] Speaker 02:
There's been no decision by the Veterans Court on either of those two theories, the shoulder theory or the direct connection theory.

[00:22:46] Speaker 03:
That's correct, Your Honor, yes.

[00:22:47] Speaker 02:
So both of those theories will be open in a later appeal, right?

[00:22:51] Speaker 03:
Yes.

[00:22:57] Speaker 03:
And that's one of the reasons why the writ was properly denied.

[00:23:01] Speaker 04:
You know, the extraordinary delays that we are seeing in a lot of these proceedings shouldn't be ignored.

[00:23:08] Speaker 04:
If you're on a path and get up to a certain stage through the RO, through the BVA, and to the Veterans Court, one can hope for resolution.

[00:23:21] Speaker 03:
Yes, Your Honor.

[00:23:22] Speaker 03:
And this case has sort of wound its way through several remands.

[00:23:26] Speaker 03:
The last remand, though, that was a joint remand where the parties agreed that the

[00:23:31] Speaker 03:
The board didn't properly consider whether the death was etiologically related to service, and the parties agreed that it should be remanded.

[00:23:45] Speaker 03:
When it was remanded, Ms.

[00:23:46] Speaker 03:
Poole did put in additional evidence, and then the board remanded to obtain even further evidence.

[00:23:54] Speaker 03:
And this goes to your earlier point, Judge Newman, that you made that.

[00:23:57] Speaker 03:
The board's duty here is to develop

[00:23:59] Speaker 03:
to make an informed medical opinion, and that's what the Board was doing, and trying to sort of shortcut that process and stop it only after Ms.

[00:24:09] Speaker 03:
Poole put in her favorable evidence, which Ms.

[00:24:13] Speaker 03:
Poole thinks is sufficient, but we don't have a decision from the Board whether it's sufficient or not.

[00:24:18] Speaker 03:
And the Board is in a better position to obtain additional evidence, make a decision, and then have that be appealed in the ordinary courts.

[00:24:25] Speaker 04:
Ginsburg But they didn't obtain it.

[00:24:28] Speaker 04:
Just looking at it in not just an ideal world, but more often than not, the RO or the board would have obtained medical opinion, but they didn't.

[00:24:40] Speaker 03:
They didn't.

[00:24:41] Speaker 03:
Well, that's why they remanded.

[00:24:43] Speaker 03:
And that's what Ms.

[00:24:46] Speaker 03:
Poole was trying to prevent was seeking the rate of prohibition.

[00:24:49] Speaker 03:
Yes.

[00:24:49] Speaker 04:
That is why they remanded.

[00:24:51] Speaker 04:
However, they didn't fulfill that obligation.

[00:24:55] Speaker 04:
Why should this petitioner?

[00:24:57] Speaker 04:
bear the burden of, again, months or years, I think, of back and forth when there was this slippage at the beginning?

[00:25:10] Speaker 03:
Your Honor, in this case, the agency is doing what it's statutorily obligated to do to evaluate the veteran's claim.

[00:25:19] Speaker 03:
And several times, the case has been remanded because the board improperly denied service connection under

[00:25:28] Speaker 03:
one statutory basis, and the Veterans Court said that you need to go and look under the other statutory basis.

[00:25:35] Speaker 03:
The process is, unfortunately, drawn out, but it does allow for submission of additional evidence, which Ms.

[00:25:42] Speaker 03:
Poole here benefited from, from being able to submit the Schmidt opinion.

[00:25:46] Speaker 04:
And so... Well, they didn't benefit from the negative opinions.

[00:25:50] Speaker 03:
Well, there's been no decision yet on that, Your Honor.

[00:25:53] Speaker 03:
And that's exactly our point.

[00:25:55] Speaker 03:
This hasn't been adjudicated by the board in a decision that the Veterans Court then reviewed.

[00:26:00] Speaker 03:
Are you sure?

[00:26:01] Speaker 03:
Well, looking at the remand order, as Judge Dyke pointed out on page 78 of the appendix, it just says remand.

[00:26:07] Speaker 03:
This is not like the case in Tyreuse where there's a clear decision on one claim and a remand on the other.

[00:26:14] Speaker 03:
There's only a remand here.

[00:26:22] Speaker 03:
It has no further questions on the writ of prohibition case.

[00:26:27] Speaker 03:
I'd like to reserve the remainder, well, to step down and address the other case after my colleague has a chance to.

[00:26:36] Speaker 04:
I'm just trying to think through.

[00:26:37] Speaker 04:
We have a veteran-friendly atmosphere.

[00:26:41] Speaker 04:
We have an environment.

[00:26:43] Speaker 04:
This Petitioner did what was required, provided a medical opinion.

[00:26:51] Speaker 04:
Until we went through this hierarchy of up and down the scale, finally, the board is doing what it should have done in the beginning.

[00:27:02] Speaker 04:
Now, who bears the burden of those delays?

[00:27:06] Speaker 04:
Again, looking at the statutory obligation to resolve doubt in favor of the veteran.

[00:27:14] Speaker 03:
Your Honor,

[00:27:16] Speaker 03:
Evidence that Ms.

[00:27:17] Speaker 03:
Poole put in was only put in in 2016 after eight years of up and down remands.

[00:27:30] Speaker 03:
The claim goes back.

[00:27:32] Speaker 03:
Ms.

[00:27:32] Speaker 03:
Poole, to the extent that she prevails, will receive dependency and indemnity compensation going back to 2004 at the date of her husband's death.

[00:27:44] Speaker 03:
process is sometimes longer than ideal, but as evident here, the additional time allowed Ms.

[00:27:51] Speaker 03:
Poole to find a medical opinion that she believes is favorable, and she was able to put that in in 2016.

[00:27:58] Speaker 03:
The board's continuing to develop that because the medical opinion that she provided doesn't address, it says that the lymphoma may have been caused by the shoulder injury, but it's not clear.

[00:28:12] Speaker 03:
And so the board, under its duty to

[00:28:14] Speaker 03:
Develop an informed to make an informed decision is continuing to develop that I believe these are when they're remanded.

[00:28:21] Speaker 03:
They are expedited.

[00:28:22] Speaker 03:
So the board is The the board has obtained has issued I believe a supplemental statement of the case and has issued a 90-day letter to miss pool and so I believe the decision is forthcoming shortly 90-day letter saying what saying that

[00:28:45] Speaker 03:
I believe this is in Article 37, that it's been remanded, that her appeal is being handled expeditiously, that she has 90 days, or until the board issues a decision to submit additional argument or evidence.

[00:29:05] Speaker 03:
But typically, a 90-day letter means that a decision is coming very shortly.

[00:29:12] Speaker 04:
OK.

[00:29:13] Speaker 04:
Thank you.

[00:29:17] Speaker 04:
Mr. Attick, a couple of minutes of rebuttal, if you like, and we can proceed with the next case.

[00:29:22] Speaker 04:
We're sort of overlapping with it.

[00:29:24] Speaker 00:
I would like to revisit very briefly, if I could, a couple of questions from Judge Dyke.

[00:29:28] Speaker 00:
Your Honor, you asked why we saw this as remanding one issue or not, as opposed to remanding both issues.

[00:29:35] Speaker 00:
And if you look at Appendix 60 at the board decision, at the very top, it is talking about the 2012 opinion that the court has already found inadequate, talks about it addressing three theories.

[00:29:46] Speaker 00:
The next paragraph,

[00:29:47] Speaker 00:
goes into saying it's, however, in the joint motion, they only found it inadequate as to that one theory.

[00:29:53] Speaker 00:
So the board identified three theories.

[00:29:55] Speaker 00:
The remand said that it was inadequate as to the other.

[00:29:57] Speaker 00:
And then it proceeded to remand to develop that theory that was inadequate.

[00:30:02] Speaker 00:
Our read of that is a clear signal to Ms.

[00:30:04] Speaker 00:
Poole that they are denying her legal theory because they're developing another one, that they don't need to develop unless they have already decided, without writing it down, possibly, that this

[00:30:17] Speaker 00:
issue has no merit.

[00:30:18] Speaker 00:
Otherwise, they would not be developing extraneous evidence on an issue.

[00:30:23] Speaker 00:
It's exactly like Tyre-Roose in the sense everything else is the same in Tyre-Roose, except we don't have that clear and definitive denial.

[00:30:30] Speaker 00:
In Tyre-Roose, you have presumptive service connection of a lung and direct service connection of a lung disorder.

[00:30:35] Speaker 00:
And the board denied, clearly and definitively denied, direct service connection of a lung and remanded for presumptive.

[00:30:42] Speaker 00:
If the facts in Tyre-Roose are changed and the board just remands for presumptive,

[00:30:46] Speaker 00:
The issue is still there, is that denial of the direct service connection, even though it's silent, I suppose is the word, even though the board did not explicitly say what it was supposed to say under 71-04-D3, then the veterans should still have had the opportunity to appeal that.

[00:31:04] Speaker 00:
And I think that's what Tyrus is saying, except that with the clear and definitive finality, it gives the 120-day limit under 7266.

[00:31:12] Speaker 00:
The other thing I would like to point out in regards to the 90-day letter is that it was issued

[00:31:16] Speaker 00:
uh... in may of two thousand sixteen uh... and we respond to that by providing the evidence that we've provided in this case in february two thousand seventeen uh... there was a supplemental statement of the case and i'm not aware of any further action by the board on this case at this time