[00:00:26] Speaker 04:
Okay, the next argued case is number seventeen, nineteen sixty-eight Robinson against Wilkie.

[00:00:33] Speaker 04:
Mr. Carpenter, when you're ready.

[00:00:44] Speaker 00:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Benny Robinson.

[00:00:49] Speaker 00:
Before I start my argument, Your Honor, I'd like to just reinforce or

[00:00:55] Speaker 00:
make sure that the court, this panel, is aware of the context in which this case arose because it is unusual from the type of case that this court normally receives.

[00:01:06] Speaker 00:
This was not an original adjudication.

[00:01:09] Speaker 00:
This was not a case in which Mr. Robinson made a claim and the VA went through the duty to assist and develop it in order to arrive at a decision as to whether or not he should or should not be awarded benefits.

[00:01:22] Speaker 00:
This happened as a result of what they call a Nehmer review.

[00:01:25] Speaker 00:
Nehmer comes from a class action lawsuit in which the VA conceded, confessed, settled the case.

[00:01:35] Speaker 00:
And part of that settlement was that they would periodically do reviews when additional conditions were added to the list of diseases for the statutory presumption.

[00:01:48] Speaker 00:
And so what happened was is that the VA went and looked back

[00:01:53] Speaker 00:
at what had taken place in Mr. Robinson's case because he had in fact made a prior application and had been denied for Agent Orange benefits, which then triggered the NEMA review, which then required a decision.

[00:02:08] Speaker 00:
And it is in that context in which it is in the look back that we have the extraordinary circumstances which took place in this case, which were that a VA cardiologist who was treating Mr. Robinson

[00:02:22] Speaker 00:
ordered a specific test that would determine whether or not his disability had increased in severity.

[00:02:31] Speaker 00:
And for reasons that are not explained by the record, 14 months went by before that examination took place.

[00:02:39] Speaker 00:
When they did the NEMA review, they found that the initial degree of severity should be 30% based upon the records and that the condition should be increased from the date

[00:02:52] Speaker 00:
of the test results that came back showing the increase.

[00:02:57] Speaker 00:
That then gives rise, that is the background, if you will, to this particular appeal.

[00:03:02] Speaker 00:
The Veterans Court made three specific errors.

[00:03:04] Speaker 05:
Can I interrupt you?

[00:03:05] Speaker 05:
I just have a factual question.

[00:03:09] Speaker 05:
Yes.

[00:03:09] Speaker 05:
At JA71, there is what I think is the physician's analysis of the veteran.

[00:03:16] Speaker 05:
And this, it says about middle of the page,

[00:03:21] Speaker 05:
that the patient is known to have coronary artery disease.

[00:03:25] Speaker 05:
He had a single vessel coronary angioplasty in 2003.

[00:03:30] Speaker 05:
It just kind of confused me because I thought the results of the test were to show that he had coronary artery disease.

[00:03:39] Speaker 05:
And so I didn't understand why this is referring to him having this disease in 2003.

[00:03:46] Speaker 00:
Well, that's why I brought up the context of this, because it is a surgery.

[00:03:50] Speaker 00:
That's why I asked the question.

[00:03:51] Speaker 05:
It was kind of the context.

[00:03:54] Speaker 00:
Eventually, in the record, they changed the effective date back to the date of that surgery, because the NEMA rules require, which is the first regulation that the court relied upon,

[00:04:09] Speaker 00:
is to give the benefit back to the date in which the medical records show that it arose.

[00:04:15] Speaker 00:
The original date selected, I believe it was 2005, was an incorrect date because they didn't look all the way back in and that has been eventually corrected.

[00:04:25] Speaker 00:
So the effective date is back to 2003.

[00:04:28] Speaker 00:
But what we're dealing with here is the original adjudication that assigned a 30% rating and then a 60% rating based upon the date of that

[00:04:38] Speaker 00:
test result that verified, corroborated the fact that his condition had, under the VA rating schedule, increased in severity and justified a 60% rating.

[00:04:53] Speaker 05:
So the decision that was corrected from 2005 to 2003, that was for the 30%?

[00:05:01] Speaker 00:
Well, they eventually gave it, excuse me, they were required to give him 100% because of the surgery and then I believe they reduced it down to 30 after the surgery.

[00:05:10] Speaker 05:
So can you give me the context of exactly what this case is about?

[00:05:15] Speaker 00:
What this case is about is there is a 14-month time period in the record prior to the adjudication in which a VA cardiologist ordered tests because the patient exhibited some symptoms

[00:05:30] Speaker 00:
that he thought warranted further testing.

[00:05:32] Speaker 00:
Those tests, when administered 14 months later, verify that he met the qualifications for the 60% rating.

[00:05:41] Speaker 03:
But Mr. Carpenter, isn't this a question of fact as to whether the board was correct that there was no proof as of February 06 that he had this condition?

[00:05:58] Speaker 03:
In fact, the court said that the veteran stated he was doing very well as of February 2006.

[00:06:11] Speaker 03:
And so it's not for us, as you know, to look at the evidence as of a particular date and override the board and the court.

[00:06:24] Speaker 00:
What you say is correct.

[00:06:27] Speaker 00:
The application in this case is incorrect.

[00:06:31] Speaker 00:
The application of that bar to consideration in this case is incorrect because the Veterans Court made three legal errors.

[00:06:43] Speaker 00:
They mistakenly concluded that the provisions of 3.816C applied and they do not.

[00:06:51] Speaker 00:
that Veterans Court said that the principles of equity do not apply, and they do, and that Section 38 CFR 17.33A2 exists independently of the Veterans Benefit Scheme, and it has no application to the assignment of an effective date under 5110B3.

[00:07:10] Speaker 00:
5110B3 specifically says, Your Honor,

[00:07:20] Speaker 00:
that an effective date is to be assigned in accordance with the facts found.

[00:07:27] Speaker 00:
The question in this case is, are these the facts found that there was a 14-month delay in awarding the 60% rating because the VA did not follow 17.33A2 and promptly provide the medical test that had been ordered?

[00:07:47] Speaker 03:
17.33 is a very general, basic provision.

[00:07:53] Speaker 03:
It doesn't deal with determining effective dates.

[00:07:57] Speaker 00:
With respect, Your Honor, I believe that that is the same error that the Veterans Court made.

[00:08:01] Speaker 00:
I believe you are incorrect because the statute, Congress specifically said that you assign the effective date in accordance with the facts found.

[00:08:12] Speaker 00:
So if you do not take into consideration the provisions of this statute,

[00:08:17] Speaker 00:
in which the VA imposed upon itself a burden to promptly provide medical treatment and medical tests, then you are ignoring Congress's mandate to consider the facts.

[00:08:31] Speaker 00:
And then that's where the equity portion of this comes into provision to potential application here.

[00:08:39] Speaker 00:
This court this week on Tuesday or Wednesday, I'm sorry, I don't remember which date now, decided the Burris case.

[00:08:46] Speaker 00:
and the Burris case specifically dealt with the question of equity and found in the circumstances in the Burris and Thompson cases that equity did not apply for the relief that was sought there.

[00:09:01] Speaker 00:
However, this court at pages 15 and 16 of the SLIP opinion specifically says that

[00:09:15] Speaker 00:
There are circumstances it said, excuse me, it is clear that the Veterans Court has authority to grant certain forms of non-substantive equitable relief required to enable the court to carry out its statutory grant of jurisdiction.

[00:09:31] Speaker 00:
We believe that that is applicable in this case.

[00:09:35] Speaker 00:
Now obviously we didn't have the benefit of that case law at the time in which we wrote the briefs in this case.

[00:09:41] Speaker 00:
But what that decision says,

[00:09:44] Speaker 00:
is that the Veterans Court overstates the matter when it says, as it did in this case, that it has no equitable powers.

[00:09:53] Speaker 00:
It clearly does have equitable powers.

[00:09:55] Speaker 05:
But does it have?

[00:09:56] Speaker 05:
I think your arguments are twofold.

[00:09:58] Speaker 05:
You first have to convince us that 38 CFR 3.813C doesn't apply in this case.

[00:10:05] Speaker 05:
And then your argument is, even if it does apply, they have the equitable power to ignore it.

[00:10:12] Speaker 05:
Which might not be the same thing as having the equitable power to have equitable tolling.

[00:10:16] Speaker 00:
No, no, with respect, Your Honor, I was with you until that last meeting.

[00:10:20] Speaker 05:
But to say, well, okay.

[00:10:22] Speaker 00:
Because it does not relate back to 3.816, because 3.816 has a single function.

[00:10:29] Speaker 00:
The only function under 816 is to ensure that the effective date goes back as far as possible.

[00:10:37] Speaker 00:
Only the effective date for the grant

[00:10:41] Speaker 00:
of benefits.

[00:10:42] Speaker 00:
And in this case, it did go all the way back and was eventually correctly applied to take the effective date back to 2003.

[00:10:49] Speaker 00:
The question here has to do with the stage rating in which from the period of, I think it's 2003 to 2006, that there was a 30% rating and then a 60% rating.

[00:11:04] Speaker 05:
The equitable toll- What, the 60% rating to go back to 2003?

[00:11:08] Speaker 00:
What?

[00:11:09] Speaker 00:
No, only wanted to go back 14 months.

[00:11:12] Speaker 00:
Or whatever the court deems to be a reasonable time for them to actually implement the text.

[00:11:18] Speaker 03:
That would be an issue.

[00:11:19] Speaker 00:
Thank you, partner.

[00:11:20] Speaker 03:
You're asking for February 2006.

[00:11:21] Speaker 05:
Are you asking for a remand for the court below to make that determination?

[00:11:28] Speaker 00:
Oh, I'm sorry.

[00:11:29] Speaker 00:
Yes, I am.

[00:11:30] Speaker 00:
I overstated.

[00:11:32] Speaker 00:
That's what Mr. Robinson is looking for, ultimately, in the outcome from this panel.

[00:11:37] Speaker 00:
Mr. Robinson is only looking, and I believe can only look, for a remand to correctly apply the law in this case.

[00:11:45] Speaker 04:
You're asking for the 14 months.

[00:11:48] Speaker 04:
Isn't that right?

[00:11:49] Speaker 00:
Ultimately, yes, Your Honor.

[00:11:51] Speaker 04:
You tell us in your brief, and I'll ask the government, that they have never represented that the 14-month delay was reasonable.

[00:12:00] Speaker 00:
Yes.

[00:12:01] Speaker 04:
They've never challenged the fact that it was not reasonable.

[00:12:05] Speaker 00:
Correct.

[00:12:06] Speaker 04:
So that that's a given, that it was not reasonable.

[00:12:10] Speaker 00:
I believe that that's uncontested in this matter, yes.

[00:12:14] Speaker 00:
And if it is in fact uncontested, then the provisions of 17.33 should be taken into consideration as part of the facts found.

[00:12:23] Speaker 00:
Because if there was an unreasonable delay in providing this test and the results of the test obviously

[00:12:32] Speaker 00:
determined that he was entitled to the 60% rating, he should be entitled based upon the facts found, being that he wasn't given that test for 14 months, should at least require consideration under 5110B3 for the facts found under both principles of equity and under the provisions of 17.33.

[00:12:54] Speaker 00:
That's correct, Your Honor.

[00:12:56] Speaker 04:
Okay.

[00:12:56] Speaker 04:
Let's hear from the government.

[00:13:03] Speaker 01:
Good morning.

[00:13:04] Speaker 01:
May it please the court?

[00:13:05] Speaker 01:
I want to start with a brief clarification.

[00:13:07] Speaker 01:
The history going back as far as the disability.

[00:13:11] Speaker 04:
Well, let's get right to the point, which I think is significant.

[00:13:15] Speaker 04:
The government is not saying that they acted reasonably in the 14-month delay.

[00:13:22] Speaker 04:
Isn't that correct?

[00:13:24] Speaker 02:
Well, we're not commenting one way or the other on that.

[00:13:26] Speaker 02:
I think one thing that needs to be made clear on this is that scheduling the ECG in this case is a two-way street.

[00:13:33] Speaker 02:
We're not sure if the source of the delay the entire time was Mr. Robinson himself.

[00:13:46] Speaker 02:
You're saying there was no opportunity to... I'm saying that Mr. Robinson has never come forward and said, okay, on these dates, I tried to make these appointments and I couldn't do it.

[00:13:58] Speaker 02:
If we look back at February 23rd, 2006, that's when he went to the cardiologist for the first time.

[00:14:04] Speaker 02:
He said that he was in good health, but he experienced slight chest pains or twinges.

[00:14:10] Speaker 02:
When he went back in November of 2006, it really had nothing to do with his heart condition.

[00:14:15] Speaker 02:
It had everything to do with blood clots in his legs.

[00:14:18] Speaker 02:
He'd been previously hospitalized in Texas for a week.

[00:14:20] Speaker 04:
None of that is before us.

[00:14:22] Speaker 04:
I'm really trying to focus on what seems from everything that we've seen.

[00:14:28] Speaker 04:
I have yet to see the government say they acted reasonably in not making the appointment until 14 months later.

[00:14:36] Speaker 04:
And that the basis for the previous remand from the Veterans Court was to determine whether or not

[00:14:46] Speaker 04:
the delay was reasonable, was it not?

[00:14:49] Speaker 02:
Mr. Robinson has never alleged, he's never argued that he tried to make these appointments and was unsuccessful or unable to do so at the VA.

[00:14:57] Speaker 04:
He hasn't had to.

[00:14:58] Speaker 04:
He has a 14-month delay.

[00:15:00] Speaker 04:
I can't see where the government ever says that's routine, that's standard.

[00:15:06] Speaker 04:
He has a burden to overcome to show that that's unreasonable.

[00:15:11] Speaker 04:
On its face, it's

[00:15:14] Speaker 04:
unusual delay for someone with the problems that uh... were represented okay they were found as i don't know if it's unusual i i i i'm not sure about that again i don't know the circumstances of the cause of the delay back to the bb and remit so to ascertain whether or not the fourteen months was due to mister robinson would do the government that was the basis for the remit from the veterans court

[00:15:43] Speaker 04:
Now, what's the answer to the question?

[00:15:44] Speaker 02:
Well, respectfully, Your Honor, even if, okay, let's assume that this hypothetical and this hypothetical, the government was the sole source of the 14-month delay.

[00:15:54] Speaker 02:
Even if that notion were true, it still doesn't allow Mr. Robinson to be entitled to a higher effective disability rating absent any medical evidence.

[00:16:06] Speaker 04:
And so again, it would- Now we get to this interpretation of the statute and the regulation.

[00:16:12] Speaker 04:
of the obligation of the government to respond expeditiously to the veterans.

[00:16:19] Speaker 02:
But I think, Your Honor, and this is what I wanted to start with, was a minor clarification.

[00:16:23] Speaker 02:
And Mr. Robinson's counsel did try to lead with this.

[00:16:26] Speaker 02:
These circumstances are not like a normal claimant who has filed a claim and then seeks care in order to build his or her case.

[00:16:34] Speaker 02:
This was a situation in 2003 where Mr. Robinson experienced a heart attack.

[00:16:40] Speaker 02:
From January 2003 to May 2003, he was diagnosed as having 100% disability rating for coronary artery disease.

[00:16:48] Speaker 02:
In May 2003, it goes to 10%.

[00:16:51] Speaker 02:
It was never 30%.

[00:16:52] Speaker 02:
So from May 2003 until April of 2007, it was 10%.

[00:17:00] Speaker 02:
The service connection for Nehmer class members like Mr. Robinson for coronary artery disease was not established until 2010.

[00:17:08] Speaker 04:
It's not before us on this appeal.

[00:17:11] Speaker 02:
But I understand.

[00:17:11] Speaker 02:
But I think if we're talking about the VA's duty or its obligation to assist a veteran in asserting or creating evidence for his or her claim, we have to look back and remember that in 2006, 2007, there was no claim pending.

[00:17:28] Speaker 04:
You told the Veterans Court,

[00:17:30] Speaker 04:
that the BVA automatically without discussion gave him the effective date when the tests were conducted.

[00:17:39] Speaker 04:
So he asked the Veterans Court for an earlier date.

[00:17:43] Speaker 04:
The Veterans Court sent it back to the BVA to consider his situation of the earlier examinations.

[00:17:54] Speaker 04:
That was the issue on this appeal as to whether the 14-day

[00:17:59] Speaker 04:
14-month delay was reasonable or not.

[00:18:03] Speaker 04:
And it made quite a large impression on me that the government has never, as far as I could see, taken the position that it was reasonable to delay 14 months before conducting the tests that were ordered by the cardiologist.

[00:18:21] Speaker 04:
That was the basis for the remand.

[00:18:24] Speaker 02:
Now, where are we?

[00:18:26] Speaker 02:
Well, I think you're saying that the central issue in this case is this 14-month delay.

[00:18:31] Speaker 02:
I see the issue a slight bit differently.

[00:18:34] Speaker 02:
The central issue in this case is Mr. Robinson is seeking a higher disability rating for those 14 months, which would in effect be a monetary award based purely on speculation.

[00:18:47] Speaker 02:
There's no evidence that would justify it.

[00:18:49] Speaker 04:
That wasn't the basis of the Veterans Court's remand?

[00:18:54] Speaker 04:
They didn't say, figure out how sick he was during that 14-month period.

[00:19:00] Speaker 04:
They said, look at these dates that you, the VA, didn't mention, apparently may not even have known existed.

[00:19:09] Speaker 02:
Well, I think, Your Honor, they actually said, I mean, part of their remand was, what does the medical evidence show with regard to the stage rating that should have been effect for these various time periods?

[00:19:20] Speaker 04:
That's what they were looking at.

[00:19:23] Speaker 04:
was given the statutory regulatory prompt detention in the 14-month period.

[00:19:32] Speaker 02:
I don't think there's any statute of regulation that the aim would fall a thousand times.

[00:19:38] Speaker 04:
And the regulations say that the veterans shall receive prompt detention?

[00:19:44] Speaker 02:
I think, Your Honor, if we're going to focus on 17.33,

[00:19:48] Speaker 02:
That's the patient's bill of rights.

[00:19:51] Speaker 02:
That doesn't have a binding effect on care or how it should be administered.

[00:19:55] Speaker 02:
As the board below said, it's hortatory.

[00:19:58] Speaker 02:
These are guidelines to be used by the VA.

[00:20:01] Speaker 02:
But the actual relevant regulations are found at 5110, 3.400.

[00:20:07] Speaker 04:
The VA has never argued that they acted reasonably.

[00:20:11] Speaker 04:
If they had, who knows, we might find some basis for deference.

[00:20:16] Speaker 03:
Aren't we reviewing the decision of the court?

[00:20:22] Speaker 03:
March 20, 2017, where the court notes that the board found that an effective date earlier than April 2007 was not warranted because he didn't show that he met the criteria.

[00:20:41] Speaker 03:
In other words, it's a lack of proof prior

[00:20:46] Speaker 02:
to april two thousand seven isn't that decision reviewing i believe that's essential issue your honor is that there was no proof and at the end of the day what this comes down to this request for fourteen months but it's based what it was robinson's position essentially it is one of policy it's a policy position and they said there was no proof because it has had been run but but but but but he but his what he posits what he would uh... have the court do is essentially create a policy guideline wherein

[00:21:16] Speaker 02:
Whenever a doctor thinks that a test or a diagnostic examination of some sort is necessary, that that would start the clock running.

[00:21:24] Speaker 02:
And at that point, within 30 days of that point, this particular veteran would be entitled to a higher disability rating.

[00:21:33] Speaker 02:
And that's simply outside the regulations and statutes that govern the claims process and the claims adjudication process.

[00:21:39] Speaker 02:
So I think, again, at the end of the day, this is a policy recommendation that Mr. Robinson wants to establish.

[00:21:45] Speaker 02:
And there's simply no support in the record.

[00:21:47] Speaker 02:
It would be completely speculative to jump him from 10% to 60% at any time.

[00:21:51] Speaker 04:
That's not his argument.

[00:21:53] Speaker 04:
He agrees there's no supporting record.

[00:21:56] Speaker 04:
He says the reason there's no supporting record was because it took them 14 months to run the test that was ordered.

[00:22:02] Speaker 04:
And when the test was run, it supported the record.

[00:22:06] Speaker 02:
But what he relies upon in making that argument, Your Honor, is 17.33.

[00:22:11] Speaker 02:
Based on my research, no claimant has ever

[00:22:15] Speaker 02:
utilize that particular regulation to support a higher disability rating.

[00:22:21] Speaker 02:
In fact, if we look at the Congressional history of the Patients Bill of Rights, it makes clear that these are guidelines that were not meant to supplant federal regulations or statutes that govern the claims process.

[00:22:33] Speaker 02:
There were simply many goals.

[00:22:35] Speaker 05:
Is it really fair to say that he's relying on it to get a higher rating?

[00:22:39] Speaker 05:
It's more accurate probably to say he's relying on it to get

[00:22:43] Speaker 02:
higher reading earlier in time i think that's what i mean your honor if that was unclear he's trying to get a higher rating in time the higher rating obviously came once the easy to have been performed in april two thousand seven writing he's trying to he already has the rating of sixty percent that's not in dispute he just says it should run fourteen months long but what's in dispute is that if you had the easy g twelve months prior to ten months prior six months prior

[00:23:10] Speaker 02:
that it would have shown that he was qualified for a 60% rating.

[00:23:14] Speaker 02:
And that's purely speculative.

[00:23:17] Speaker 02:
It falls afoul of 5110.

[00:23:19] Speaker 05:
So I think no matter how you look at it... And also your position that when you look at the effective date, that that is tied to 3.81316C?

[00:23:29] Speaker 02:
Yeah, I think it is.

[00:23:30] Speaker 02:
And again, I think it has to do with the unique nature.

[00:23:32] Speaker 05:
That is the government's position.

[00:23:34] Speaker 02:
Well, I think that Mr. Robinson's counsel is attempting to separate these 3.816 and 5110.

[00:23:41] Speaker 02:
First of all, the Veterans Court addressed both and noted that Mr. Robinson had failed to put forth evidence that would be sufficient pursuant to 5110.

[00:23:48] Speaker 02:
So that is in the Veteran Court's decision.

[00:23:50] Speaker 02:
But beyond that, I think if we're looking back at this,

[00:23:53] Speaker 02:
3.816, all that did in 2010 after coronary artery disease was established as a service-connected disability for Nehmer class members.

[00:24:03] Speaker 02:
That enabled Mr. Robinson pursuant to 3.816 to be entitled for that service connection because he was a Nehmer class member.

[00:24:10] Speaker 02:
5110, though, kicks in and establishes what his exact rating would be for the relevant time period.

[00:24:17] Speaker 02:
So I don't think we can look at them separately.

[00:24:19] Speaker 02:
I certainly don't think that the Veterans Court was mistaken in relying on both

[00:24:24] Speaker 02:
3.816 and 5110.

[00:24:26] Speaker 03:
Do we have before us a decision by the court concerning the behavior of the VA?

[00:24:33] Speaker 02:
We do not, Your Honor.

[00:24:34] Speaker 02:
It's not in the record.

[00:24:35] Speaker 02:
Certainly, Mr. Robinson has never put forth any evidence of his multiple attempts to try and receive the CCG.

[00:24:43] Speaker 02:
Our understanding is once he saw the doctor again in November 2006, the doctor noted that

[00:24:48] Speaker 02:
He was still needing to have this ECG performed.

[00:24:51] Speaker 02:
It was finally performed.

[00:24:52] Speaker 02:
And it was at that point that he went from 10% disability to 60% disability.

[00:24:56] Speaker 04:
So the government's position is that he had no entitlement to prompt testing?

[00:25:01] Speaker 02:
No, that's not our position, Your Honor.

[00:25:03] Speaker 02:
I think the position is that, I think 14 months is a significant period of time for an ECG.

[00:25:10] Speaker 04:
I'm not sure- The position is 14 months is prompt?

[00:25:14] Speaker 02:
no i'm not saying it's prompt but i'm saying the reason that was fourteen months it is something that we don't know and it was a robinson is laying the ceiling the blame at the feet of the government you know i have a record that was the basis rosemary man so now there's a record of all his requests for appointments there's nothing in the record about that your honor the simply he's never added or he's never made specific arguments or included any information that would substantiate he tried to receive therefore fourteen months is

[00:25:43] Speaker 04:
Presumed to be his fault?

[00:25:45] Speaker 02:
I'm not saying it's presumed to be anyone's fault.

[00:25:48] Speaker 02:
I'm saying that, you know, it's a two-way street.

[00:25:51] Speaker 02:
The VA can schedule something and Mr. Robinson can cancel it, can, you know, decide that he doesn't think he needs the ECG, perhaps at the time, because he was only rated as having a 10% disability.

[00:26:01] Speaker 03:
The real point is we don't need to get into the possibilities of who's to fault and how much.

[00:26:06] Speaker 03:
I agree, Your Honor, and I think that, you know, I... Simply review the court's affirmance of the boards

[00:26:13] Speaker 03:
decision that there's a lack of evidence for April 07.

[00:26:17] Speaker 02:
That's correct, Your Honor.

[00:26:18] Speaker 02:
And I think, just to address very quickly, the Wilkie case, which was just published two days ago, I think Mr. Robertson's counsel and I, we look at that case and we read it very differently.

[00:26:27] Speaker 02:
I read that case as actually supporting our position, because there the Federal Circuit did say, this court did say, the Veterans Court cannot invoke equity to expand the scope of its statutory jurisdiction.

[00:26:39] Speaker 02:
Again, the relevant statutes here in the regulations are 5110.

[00:26:43] Speaker 02:
3.400 and 3.816.

[00:26:44] Speaker 02:
And that's probably not the Wilkie case, is it?

[00:26:49] Speaker 02:
I'm sorry, the Burrows v. Wilkie case.

[00:26:52] Speaker 02:
But they established that there has to be medical evidence that would substantiate the disability rating.

[00:26:58] Speaker 02:
And here there was simply none.

[00:26:59] Speaker 02:
And that's the reason why I think the Veterans Court was correct in saying it didn't have the equitable power to give Mr. Robinson what he wanted.

[00:27:08] Speaker 02:
And I think at the end of the day, the Veterans Court correctly applied the proper regulations and statutes, which were not 17.33.

[00:27:14] Speaker 02:
If there are no further questions, I'll forgo these the rest of my time.

[00:27:20] Speaker 01:
Thank you.

[00:27:20] Speaker 04:
Thank you.

[00:27:30] Speaker 04:
Mr. Carpenter.

[00:27:31] Speaker 00:
May I please record, this court's case law has been

[00:27:35] Speaker 00:
established for some time that when a veteran presents an issue and the Veterans Court decides to ignore that issue, that that does not in any way diminish this court's jurisdiction.

[00:27:46] Speaker 00:
Mr. Robinson, in his case before the Veterans Court, presented the question of law as to whether or not 3.16 controlled the disposition of this case.

[00:27:59] Speaker 00:
Excuse me, 3.816.

[00:28:01] Speaker 00:
3.816 does not control the disposition of this case.

[00:28:04] Speaker 00:
It only controls the date to begin the award, which they got wrong in the first instance and correctly took it back to 2003.

[00:28:15] Speaker 00:
Secondly, he presented the question of equity.

[00:28:18] Speaker 00:
The court said no.

[00:28:20] Speaker 00:
So they made a determination, Your Honor.

[00:28:23] Speaker 00:
They made a decision that they did not have equity.

[00:28:26] Speaker 00:
This court's decision in Burris calls that into question.

[00:28:30] Speaker 00:
Burris at the very least says that it does not exclude equity in all circumstances and specifically said that it applies in terms of equitable tolling and even applies in terms of equitable stopple, which implicitly overrules a presidential decision of the Veterans Court that says equitable stopple does not apply.

[00:28:53] Speaker 00:
that Mr. Robinson presented below the question of whether or not he was not entitled to the benefit of prop treatment under the provisions of 1733.

[00:29:02] Speaker 00:
The Veterans Court said he was not.

[00:29:05] Speaker 00:
That is a legal determination.

[00:29:07] Speaker 00:
So there were three specific legal determinations made by the Veterans Court, separate and apart from the fact that they found that there was no evidence to support it.

[00:29:17] Speaker 00:
And the reason there was no evidence to support it was because of the delay of the VA in getting the test.

[00:29:25] Speaker 04:
The government says that it was up to Robinson to establish that he requested earlier testing and that there was no evidence on his side.

[00:29:37] Speaker 00:
Your Honor, to be polite, that argument is bogus.

[00:29:41] Speaker 00:
There is no basis for that in the law.

[00:29:44] Speaker 00:
There is no burden on the veteran.

[00:29:46] Speaker 00:
He does not control scheduling.

[00:29:48] Speaker 00:
There is nothing in the evidence that suggests that he did not simply wait until the VA told him to show up for his appointment.

[00:29:56] Speaker 00:
And when the VA told him to show up for his appointment, he showed up for his appointment, and that appointment verified that his disability should have been rated at 60%.

[00:30:05] Speaker 00:
The overarching question here is the nature of this system.

[00:30:11] Speaker 00:
This is either a veteran-friendly system

[00:30:14] Speaker 00:
or it's a system that the government just told you about in which we shift the burden to the veteran to prove something.

[00:30:22] Speaker 00:
Mr. Robinson should not have the burden to show that he didn't cause this delay.

[00:30:30] Speaker 00:
The delay has not been disputed.

[00:30:33] Speaker 00:
The delay took place here.

[00:30:35] Speaker 00:
That implicates the provisions of 1733.

[00:30:39] Speaker 00:
The government is completely wrong when it says that the provisions of 38 USC 5110 apply to rating.

[00:30:47] Speaker 00:
They do not apply to rating.

[00:30:50] Speaker 00:
Rating is applied based upon the diagnostic code, and that is in part three of the Code of Federal Regulations.

[00:30:57] Speaker 00:
The statute at 5110

[00:30:59] Speaker 00:
pertains only to the assignment of the effective date.

[00:31:04] Speaker 00:
And it uses the congressional language that the effective date shall be determined based upon the facts found.

[00:31:11] Speaker 00:
The decision of the Veterans Court precluded consideration of the facts as they existed in the record.

[00:31:19] Speaker 00:
And the facts as they existed in the record were that the VA, without explanation, delayed getting this test for 14 months.

[00:31:28] Speaker 00:
That requires a remand by this court for consideration by the Veterans Court.

[00:31:35] Speaker 00:
Unless there's further questions from the panel?

[00:31:37] Speaker 04:
No questions.

[00:31:37] Speaker 04:
Thank you very much, Your Honor.

[00:31:39] Speaker 04:
Thank you.

[00:31:40] Speaker 04:
Thank you both.

[00:31:40] Speaker 04:
The case is taken under submission.