[00:00:00] Speaker 04:
We ask this court to squarely address whether 7252 extends Veterans Court jurisdiction to all board decisions, regardless of the scope of their relief.

[00:00:10] Speaker 04:
Since Tyrus, we have known that Veterans Court jurisdiction extends to a final board decision.

[00:00:15] Speaker 04:
There's no dispute of that.

[00:00:16] Speaker 04:
We know that a final board decision is a written decision that clearly and definitively denies a issue that was raised in appeal to the BVA.

[00:00:26] Speaker 04:
We all know that we agree on that.

[00:00:27] Speaker 04:
Nobody disputes that what a final decision is or that the Veterans Court has jurisdiction over a final decision.

[00:00:33] Speaker 04:
The question, and in fact, we do argue that it was a final decision.

[00:00:37] Speaker 04:
The court may or may not agree with us on that.

[00:00:39] Speaker 04:
They may or may not agree that that July 2016 decision is final based on our theory.

[00:00:44] Speaker 04:
And if they don't, then the question remains, is this nonetheless a decision of the board?

[00:00:49] Speaker 04:
And I think that if you ask the secretary, they're going to say, no, it's not a decision because it's silent.

[00:00:55] Speaker 04:
silent on the question of the theory that was not remanded to the regional office.

[00:01:02] Speaker 04:
Because it was silent, they're going to say that Howard and Kirkpatrick control.

[00:01:06] Speaker 04:
And I think that that's a significant statement there, because Howard and Kirkpatrick don't talk about silence.

[00:01:13] Speaker 04:
Howard says that if you have two issues, we're on appeal to the Veterans Court with the board decision.

[00:01:20] Speaker 04:
And the board decision addressed one of those, clearly addressed it.

[00:01:25] Speaker 04:
The Q claim was not addressed.

[00:01:27] Speaker 04:
In other words, it was not talked about in the decision.

[00:01:29] Speaker 04:
And because the issue was not addressed, the court sent it back saying, essentially saying no jurisdiction.

[00:01:36] Speaker 04:
But in reality, what they were doing was a justiciability decision right there, saying that it's not ripe or the administrative remedy hasn't been exhausted.

[00:01:47] Speaker 04:
Kirkpatrick is,

[00:01:49] Speaker 04:
Um, interesting too, because Kirkpatrick has two issues in it.

[00:01:55] Speaker 04:
And one of those, the court came out and said, you know, this, the board had a, they had appealed this issue that the board did not have jurisdiction to address something.

[00:02:03] Speaker 04:
And the court came out and said, following Howard, following Ledford, um, you didn't raise that issue.

[00:02:08] Speaker 04:
You didn't present it.

[00:02:09] Speaker 04:
So under Ledford, it's not there.

[00:02:11] Speaker 04:
The board did not address its jurisdiction.

[00:02:13] Speaker 04:
So under Howard, you know, that same justiciability concern is not there.

[00:02:17] Speaker 04:
But what Kirkpatrick did.

[00:02:19] Speaker 04:
What Kirkpatrick did is it said that the decision is, the remand is not a decision because it does not grant or deny relief, right?

[00:02:29] Speaker 04:
And that's exactly what it said.

[00:02:30] Speaker 04:
And that comes from 7104D3, those three elements that shall be in a board decision.

[00:02:39] Speaker 04:
Now, 7104D1 says that it shall include reasons and bases as well.

[00:02:45] Speaker 04:
And we know that when a board decision does not include reasons and bases,

[00:02:49] Speaker 04:
The Veterans Court does not come down and say, this is not a decision.

[00:02:53] Speaker 04:
They say it's a decision that we can't review, a kind of justiciability analysis.

[00:02:58] Speaker 04:
And we're saying that there should be no difference with 7104D3, that the board shall put in these statements denying or granting appropriate relief.

[00:03:08] Speaker 04:
But when they don't, it doesn't deprive the Veterans Court of jurisdiction.

[00:03:12] Speaker 04:
It raises the issue of justiciability.

[00:03:15] Speaker 04:
We think this is a critical distinction, even though sometimes the difference between just jurisdiction and just disability seems to be sometimes academic.

[00:03:23] Speaker 04:
I think it creates a real opportunity as we see in these reasons and bases remands.

[00:03:28] Speaker 04:
We see an opportunity for the court to have a dialogue with the board to say, here's the reasons that your decision is not adequately reasoned.

[00:03:36] Speaker 04:
Here's the bases that you did not provide.

[00:03:38] Speaker 04:
And in most of those cases, the board can then go back and address them.

[00:03:42] Speaker 04:
That same opportunity is being deprived when the court doesn't clear, I'm sorry, when the board doesn't clearly come out and grant appropriate relief or deny appropriate relief.

[00:03:50] Speaker 04:
It leaves these issues in limbo.

[00:03:52] Speaker 04:
We saw that it sort of left something in limbo in Tyrus that the court resolved by saying there's a clear and definitive denial.

[00:03:58] Speaker 04:
There's other things that are left in limbo.

[00:04:00] Speaker 04:
In this particular case is what happens to Ms.

[00:04:03] Speaker 04:
Poole's legal theory.

[00:04:04] Speaker 04:
If she does not appeal it,

[00:04:06] Speaker 04:
When this other legal theory that the board develops comes back up and she appeals, is the Veterans Court going to come and say, you missed your window because the remand address?

[00:04:15] Speaker 01:
No, they're not going to say that.

[00:04:16] Speaker 01:
The government concedes that both issues are open in a subsequent appeal.

[00:04:22] Speaker 04:
The concession that I heard, or their position is the first time that I've heard that in this case.

[00:04:26] Speaker 04:
I have not seen any concession to say that before.

[00:04:37] Speaker 04:
I kind of lost my train of thought on that, Your Honor.

[00:04:41] Speaker 04:
What the Secretary is saying is that there is a theory that is remanded.

[00:04:46] Speaker 04:
But what they're not saying is that the issue, and what they were clear in saying, and what I heard was not, they did not admit or agree that Ms.

[00:04:54] Speaker 04:
Poole's legal theory was remanded.

[00:04:56] Speaker 04:
I did not hear them say it that way.

[00:04:58] Speaker 04:
And that's the thing that we have issue with.

[00:05:00] Speaker 04:
And Kirkpatrick, the appellant in Kirkpatrick.

[00:05:03] Speaker 02:
Well, I have an issue with that, too.

[00:05:05] Speaker 02:
I think the government's reading

[00:05:07] Speaker 02:
I think the board remanded both theories.

[00:05:12] Speaker 02:
And if that's true, then you don't have a problem, right?

[00:05:18] Speaker 04:
If it's true that the board remanded both theories, well, we disagree with that premise.

[00:05:23] Speaker 04:
But in that case, I believe that it really is best for the Veterans Court to make that decision.

[00:05:27] Speaker 04:
I don't think that this court should need to dive into the intricacies of what was and was not involved in the myriad of board decisions that come up to the court.

[00:05:36] Speaker 04:
I think the Veterans Court should be able to say, this isn't ripe yet.

[00:05:39] Speaker 04:
This issue's moot.

[00:05:41] Speaker 04:
This issue, they have an exhaustive administrative remedies.

[00:05:43] Speaker 04:
Or this is an issue of finality, that we don't have finality in this board decision.

[00:05:48] Speaker 04:
We're not going to address it.

[00:05:49] Speaker 04:
Or wait a minute, this has been going on for 12 years.

[00:05:51] Speaker 04:
There may not be finality, but we're going to look at the exceptions to the justiciability rule of finality.

[00:05:56] Speaker 04:
I think the Veterans Court should be able to say that.

[00:05:59] Speaker 04:
And I think with respect, that since this Court has decided a narrowly limited jurisdiction to these issues in Ledford, Howard, Kirkpatrick,

[00:06:06] Speaker 04:
that what it's done is it's foreclosed the Veterans Court's ability to develop justiciability doctrines and have that dialogue with the board to help the board improve the decisions it's making, accelerate the decisions it's making, and thus create better relief to veterans and their survivors.

[00:06:22] Speaker 04:
Played out in this case, if the court had accepted jurisdiction over Ms.

[00:06:27] Speaker 04:
Poole's appeal, it could very well come back and say that it's not justiciable for any number of theories.

[00:06:32] Speaker 04:
But it could also come and say,

[00:06:34] Speaker 04:
that it is justiciable because it's been waiting for 14 years for a decision, and we keep having to send it back, and we keep having to send it back.

[00:06:41] Speaker 04:
The Veterans Court should be the one to make that decision.

[00:06:44] Speaker 04:
They can't, because the Veterans Court is under the impression, as Judge Greenberg said in the decision underlying this appeal, is that the board decision is not final within the meaning of 7252.

[00:06:57] Speaker 04:
And 7252 says no words of finality.

[00:07:00] Speaker 04:
Congress included no words of finality.

[00:07:02] Speaker 04:
They left that to the Veterans Court.

[00:07:04] Speaker 04:
And by leaving it to the Veterans Court to address, we enabled the board to issue better decisions.

[00:07:11] Speaker 04:
We would ask that the court find that specifically address the issue of 7252 and find that the Veterans Court has jurisdiction over all decisions of the board and that it can postpone or delay its exercise of that jurisdiction on any number of theories of justiciability and allow the court to develop its own justiciability jurisprudence.

[00:07:31] Speaker 04:
If there's no further questions.

[00:07:32] Speaker 03:
Let's hear from the government.

[00:07:40] Speaker 00:
Good morning again.

[00:07:42] Speaker 00:
Ms.

[00:07:43] Speaker 00:
Poole is asking this Court and the Veterans Court to create jurisdiction where there is none and trying to substitute justiciability for jurisdiction.

[00:07:52] Speaker 00:
Neither this Court nor the Veterans Court can do that.

[00:07:54] Speaker 00:
The statute provides judicial review of decisions.

[00:08:00] Speaker 00:
of the board.

[00:08:00] Speaker 00:
There's been no decision here.

[00:08:02] Speaker 00:
There's only been an order.

[00:08:03] Speaker 00:
As this Court said in Kirkpatrick, a decision grants or denies relief.

[00:08:08] Speaker 00:
There hasn't been that here.

[00:08:09] Speaker 00:
The board essentially punted it back for additional evidence.

[00:08:12] Speaker 00:
It's the absence of a decision.

[00:08:14] Speaker 00:
It couldn't make a decision based on the evidence, and under its statutory obligation to develop further evidence, it sent it back to the regional office.

[00:08:27] Speaker 00:
to create jurisdiction here would contravene both the statutory language and, I think as Judge Dyck pointed out earlier, it would create this regime where every interim remand order is immediately appealable when there has been no decision.

[00:08:43] Speaker 00:
Here, Ms.

[00:08:45] Speaker 00:
Poole can still get relief.

[00:08:48] Speaker 00:
The agency hasn't foreclosed her from doing that.

[00:08:51] Speaker 00:
It hasn't decided yet that she's not entitled to relief from it.

[00:08:55] Speaker 02:
She can get relief on either theory.

[00:08:58] Speaker 00:
Yes, Your Honor.

[00:08:59] Speaker 00:
And that's, I think, the confusion there that I think you and I were having earlier is it remanded her claim.

[00:09:06] Speaker 00:
And her claim, at this point, contains both theories.

[00:09:08] Speaker 02:
But you don't view it as two separate claims.

[00:09:09] Speaker 02:
You view it as one claim.

[00:09:11] Speaker 02:
Yes.

[00:09:12] Speaker 02:
But if it's two separate claims, both claims are open and a further appeal, right?

[00:09:19] Speaker 00:
Yes, Your Honor.

[00:09:22] Speaker 00:
Because there has been, unlike Tyreuse, there's been no denial of her claim.

[00:09:28] Speaker 00:
And, you know, right now there's two theories.

[00:09:31] Speaker 00:
If medical evidence comes back and proffers some etiological connection that, you know, Ms.

[00:09:39] Speaker 00:
Poole's physician hasn't thought of, she could still get relief under that.

[00:09:43] Speaker 00:
She's not foreclosed from that.

[00:09:44] Speaker 00:
More importantly, she's not foreclosed from then challenging a denial should she be denied benefits in the ordinary appellate process.

[00:09:52] Speaker 00:
Creating this jurisdiction over any sort of

[00:09:56] Speaker 00:
remand order to the Board is going to, I think as the Court said in Kirkpatrick, it's going to unnecessarily interfere in the agency's internal processing of claims in a manner unlike this Court's review of the Veterans Court remand orders.

[00:10:10] Speaker 00:
Even this Court's review of Veterans Court remand orders is typically not done.

[00:10:17] Speaker 00:
It is only a small exception under Williams where the case fits into a particular category

[00:10:22] Speaker 00:
and where the legal question can potentially be lost on remand, that this court will take jurisdiction and review.

[00:10:28] Speaker 00:
That's not the situation here.

[00:10:29] Speaker 03:
You're not arguing any Henderson issue or any threshold jurisdictional aspect, are you?

[00:10:42] Speaker 00:
We're not, Your Honor.

[00:10:43] Speaker 00:
The legal question that this court has jurisdiction to review is whether a remand order is immediately appealable.

[00:10:52] Speaker 00:
That's a legal question that this court can review.

[00:10:55] Speaker 00:
This court has reviewed and answered in both Kirkpatrick and Tyreuse.

[00:11:00] Speaker 00:
So I don't think we're arguing no jurisdiction for this court to review that legal question.

[00:11:04] Speaker 00:
We're just saying that it's been answered.

[00:11:06] Speaker 03:
OK.

[00:11:09] Speaker 00:
If the panel has no further questions, we ask that someone.

[00:11:24] Speaker 04:
Even if both issues can be appealed, both issues that are in the board decision can be appealed, there is a substantial risk.

[00:11:30] Speaker 04:
It has not happened, but there's a substantial risk that Ms.

[00:11:33] Speaker 04:
Poole could pass away and lose her entire right to that claim and the entire right to adjudicate that or see that through to finality.

[00:11:41] Speaker 04:
That could have happened.

[00:11:41] Speaker 04:
It could still happen at any time.

[00:11:43] Speaker 04:
And it happens any time that there's this protracted time period between decision, whether it's remand, grant, refer, deny, and appeal.

[00:11:51] Speaker 04:
That's the issue is Ms.

[00:11:52] Speaker 04:
Poole could die tomorrow.

[00:11:54] Speaker 04:
and she loses her right to bring that claim.

[00:11:56] Speaker 02:
Therefore, when the board made its decision... You're absolutely right that the system is disgraceful and that it shouldn't take this long to resolve a claim.

[00:12:04] Speaker 02:
You're absolutely right about that, but the remedy that you seek is not the right remedy.

[00:12:11] Speaker 04:
I understand what you're saying.

[00:12:13] Speaker 04:
To make sure that I'm clear on the remedy we're asking is we're saying that the Veterans Court should be the one to decide whether or not the issue is final, whether or not

[00:12:23] Speaker 04:
If they have, it's justiciable.

[00:12:26] Speaker 04:
I think that for this court, the question is, is 7252 limited to final decisions?

[00:12:31] Speaker 04:
And if not, let the Veterans Court make these decisions.

[00:12:34] Speaker 04:
They're in the place to be able to say, we've seen Ms.

[00:12:36] Speaker 04:
Poole's appeal.

[00:12:37] Speaker 04:
How many times?

[00:12:38] Speaker 04:
We've seen this veteran's appeal come back on remand.

[00:12:41] Speaker 04:
How many times?

[00:12:41] Speaker 04:
It's time for us to address it.

[00:12:43] Speaker 04:
The Veterans Court can't do that because of the very limited interpretation of 7252 that contradicts what Congress said.

[00:12:53] Speaker 04:
And until the court comes down and says that 7252 gives jurisdiction over all board decisions, the Veterans Court can't develop that theory of justiciability that allows it to have the better control over what appeals should be taken and what appeals should not be taken and help the board improve the process so that we don't have to wait 14 years and three remands.

[00:13:15] Speaker 04:
They can address these issues as they arise.

[00:13:18] Speaker 04:
If there's no further questions, we ask the court to find the 7252

[00:13:21] Speaker 04:
grants jurisdiction to the court over all decisions of the board without respect to finality.

[00:13:27] Speaker 03:
Thank you.

[00:13:28] Speaker 03:
Thank you both.

[00:13:29] Speaker 03:
These cases are taken under submission.