[00:00:00] Speaker 03:
and start with number 212032, Morris against McDonough.

[00:00:10] Speaker 03:
Mr. Carpenter.

[00:00:16] Speaker 04:
May it please the court?

[00:00:17] Speaker 04:
Kenneth Carpenter appearing on behalf of Mr. Lewis Morris.

[00:00:21] Speaker 04:
This appeal, Your Honors, is controlled by the provisions of 38 USC 7261A3B

[00:00:30] Speaker 04:
which is the scope of review provisions.

[00:00:33] Speaker 00:
I'm sorry to interrupt Mr. Carpenter, but I can't see you.

[00:00:38] Speaker 00:
Courtroom Deputy, you're supposed to be turning the camera so that my view is of Mr. Carpenter and not just myself on the screen.

[00:00:50] Speaker ?:
OK.

[00:00:50] Speaker 04:
IT is making that adjustment now.

[00:00:51] Speaker 04:
I believe I had just pointed out that I believe that this

[00:00:54] Speaker 04:
matter is controlled by the provisions of 7261A3B, which unambiguously provides that the Veterans Court shall hold unlawful and set aside decisions of the Board of Veterans' Appeals found to be contrary to constitutional right to the extent necessary to its decision when presented.

[00:01:14] Speaker 04:
Mr. Morris made an attempt to present a constitutional issue for the first time before the Veterans Court

[00:01:22] Speaker 04:
following a board decision denying revision of his previous regional office decisions, which denied him service connection for compensation for his psychosis.

[00:01:36] Speaker 04:
The Veterans Court mistakenly relied upon this court's decision and Maget.

[00:01:42] Speaker 04:
This court's decision and Maget does not control.

[00:01:45] Speaker 04:
Maget did give the Veterans Court discretion

[00:01:50] Speaker 04:
on whether to consider an issue for the first time when presented to that court.

[00:01:57] Speaker 03:
Why isn't it a problem, perhaps even a problem, of the Veterans Court's jurisdiction that the constitutional issue you raised attacks a different earlier

[00:02:13] Speaker 03:
board decision from the one that the board was addressing in the decision that went up to the Veterans Court in the first place?

[00:02:23] Speaker 04:
Well, because the issue, the constitutional question affects both decisions made in this case.

[00:02:30] Speaker 04:
And the earlier decision was both decisions were subject to review by the board.

[00:02:37] Speaker 04:
The board previously reviewed under one decision, and then in the decision that is on appeal, reviewed an alternative decision.

[00:02:45] Speaker 04:
Each of those decisions are in the record at appendix 24, 25, 26, and 27.

[00:02:54] Speaker 04:
Sorry.

[00:02:55] Speaker 03:
1028.

[00:02:56] Speaker 03:
So maybe my understanding is wrong.

[00:02:58] Speaker 03:
Tell me.

[00:02:58] Speaker 03:
I thought that the new constitutional argument you're making attacks an August 1970 decision because of an insufficiency of the September 1970 notice.

[00:03:10] Speaker 03:
And the board decision that went out to the Veterans Court was a separate CUE claim as to the supposed clear and uncivil error of November 1970.

[00:03:21] Speaker 03:
decision, not one concerning the pension claim.

[00:03:24] Speaker 04:
That's correct, Your Honor.

[00:03:26] Speaker 04:
And if you will note at appendix page 26, the rating decision specifically indicated that its jurisdiction was the reconsideration of the original claim received in May of 1970.

[00:03:42] Speaker 04:
All of these decisions happened within

[00:03:44] Speaker 04:
excuse me, both of these decisions happened within a three-month window before the agency.

[00:03:51] Speaker 03:
But aren't there still two distinct claims for CUE purposes, only one of which

[00:04:01] Speaker 03:
was the subject of the board decision.

[00:04:05] Speaker 03:
And therefore, how did the Veterans Court even have jurisdiction to decide a distinct C.U.

[00:04:12] Speaker 03:
or a distinct claim about the August 1970 decision?

[00:04:18] Speaker 04:
It is our position, honor, that the breadth of the constitutional infirmity here covers both decisions, since both decisions were related to the same ultimate denial of benefits for compensation.

[00:04:34] Speaker 04:
The notice in the first rating decision, which is in Appendix 25, simply informed the veteran

[00:04:43] Speaker 04:
that his other nervous condition, without identifying which nervous condition was being referred to, is a constitutional or developmental condition, not a disability under law.

[00:04:59] Speaker 04:
So there was no indication in that notice of a disposition of the original claim for compensation for the psychosis.

[00:05:09] Speaker 04:
In the next notice, which was the subject matter of the Q challenge, the notice in that decision, which is at Appendix 28, simply indicates that they had determined that basic eligibility for pension had been found effective May of 1970.

[00:05:31] Speaker 04:
So in point of fact, neither of these decisions ever addressed

[00:05:38] Speaker 04:
the question of service connection for schizophrenia.

[00:05:42] Speaker 04:
But more importantly, the notices gave no indication that there had been a denial of that condition.

[00:05:50] Speaker 04:
Therefore, as a constitutional matter, his original claim remained pending because there was either no adjudication of that claim for compensation, or if there was, in fact, implicitly,

[00:06:07] Speaker 04:
or inferentially a decision denying that claim, then the decision that was made was never conveyed to Mr. Morse as a constitutional matter in order for him to exercise his appellate rights to appeal such a denial.

[00:06:28] Speaker 04:
And he has been in that circumstance now for approaching almost 70 years, or excuse me, 50 years,

[00:06:36] Speaker 04:
at this point from 1970 to the present.

[00:06:40] Speaker 04:
And we believe that he was entitled to relief from the Veterans Court under the specific scope of authority that is provided under 7261A3B.

[00:06:52] Speaker 04:
Because this was a holding by the board.

[00:06:58] Speaker 04:
Excuse me.

[00:07:05] Speaker 04:
that was the result of a proceeding that had a constitutional defect and that he had the right under his appeal and under the jurisdiction and the scope of review of the Veterans Court to have that challenge addressed by the Veterans Court.

[00:07:22] Speaker 04:
And the Veterans Court did not afford him that opportunity.

[00:07:26] Speaker 04:
That decision was inconsistent with this court's decision in Inray Bailey.

[00:07:31] Speaker 04:
This court was confronted with the same situation in Bailey in which this court was presented for the first time on appeal a question of constitutional implication, a denial of due process.

[00:07:45] Speaker 04:
In that case, this court found that it did indeed have jurisdiction and an obligation to consider that question for the first instance.

[00:07:55] Speaker 04:
This particular statute has not been interpreted by either court.

[00:08:00] Speaker 04:
uh... seventy two ninety two was interpreted by this court in bailey but no reference was made or was it necessary to have been made to seventy two sixty one eighty three capital b therefore this is a question of first impression for this court as to what the obligation is of the veteran court veterans court when presented for the first time with a constitutional question

[00:08:26] Speaker 04:
We believe it.

[00:08:27] Speaker 02:
Mr. Carpenter, it's your position that we should say that the Veterans Court is obligated to address any constitutional claim that is raised for the first time, regardless of what happened at the board level.

[00:08:41] Speaker 02:
Yes, Your Honor.

[00:08:42] Speaker 02:
And what about legal questions that are not constitutional questions?

[00:08:47] Speaker 02:
Does your interpretation of 7261 extend to non-constitutional legal questions that were not raised at the board level?

[00:08:55] Speaker 04:
Well, Your Honor, mine certainly would, but it's really not necessary for this court to address that question in this case, because this case was only about the presentation of a constitutional question and not a question of law.

[00:09:09] Speaker 02:
How, if at all, could we write an opinion that agrees with your position on constitutional questions that didn't have the necessary implication that all legal questions could be raised for the first time at the Veterans Court level?

[00:09:23] Speaker 04:
well you know i i believe that it would have that implication i'm simply suggesting that there is no need for this court to directly address that i would be more than happy to have this court address that question but in all candor i do not believe that it's necessary however having said that

[00:09:40] Speaker 04:
We also rely upon the Supreme Court's recent decision in Carr, which we believe does address that issue, but again in the Constitution of raising a constitutional question on appeal from an administrative agency, the sister agency of the Department of Veterans Affairs, the Social Security Administration.

[00:09:59] Speaker 03:
But also the Court went out of its way to define what it was deciding and to confine its holding to non-statutory

[00:10:10] Speaker 03:
exhaustion.

[00:10:11] Speaker 04:
That's correct.

[00:10:12] Speaker 04:
In the Carr case, that is correct.

[00:10:18] Speaker 04:
And to that extent, I suppose we have to presume that the follow up to the statutory questions would be left for another day.

[00:10:28] Speaker 04:
But the fact of the matter is that I believe that the same kind of implication arises from that.

[00:10:35] Speaker 04:
that if there is a reason for the court to take consideration of the constitutional question, then by implication, there should be a right to present it in the first instance on a statutory basis.

[00:10:51] Speaker 04:
But that's not before this court.

[00:10:53] Speaker 04:
What is before this court is whether or not Mr. Morris, or excuse me, whether the board, excuse me, the Veterans Court,

[00:11:02] Speaker 04:
in denying him the right to have his appeal considered in the first instance.

[00:11:06] Speaker 04:
I'll reserve the balance of my time, unless there's any further questions from the panel.

[00:11:12] Speaker 03:
Thank you, Mr. Parker.

[00:11:13] Speaker 04:
Thank you very much.

[00:11:26] Speaker 03:
Mr. Wisser?

[00:11:27] Speaker 01:
Yes, sir.

[00:11:28] Speaker 03:
OK.

[00:11:29] Speaker 03:
Please begin whenever you're ready.

[00:11:35] Speaker 01:
Morning, Your Honors.

[00:11:35] Speaker 01:
May it please the Court.

[00:11:37] Speaker 01:
There is no dispute here that Mr. Morris's claim of constitutional infirmity for his notice was newly raised to the Veterans Court.

[00:11:45] Speaker 01:
And there's no dispute that the Veterans Court exercised its discretion not to hear that claim, and that the exercise of its discretion is something that is not revealable in this Court under the Dickens precedent that we cited in our brief.

[00:11:57] Speaker 01:
The only viable argument that Mr. Morris makes here

[00:12:00] Speaker 01:
is that somehow the Veterans Court was compelled to decide a constitutional issue that may have been presented to it in the first instance, not presented below to the board.

[00:12:10] Speaker 00:
Council, this is just more.

[00:12:11] Speaker 00:
You indicate that you believe the exercise of the discretion is not reviewable by this court?

[00:12:18] Speaker 01:
Your Honor, we're taking that from the Dickens case, 814 F3 at 1361, where there is a... That's irrelevant.

[00:12:26] Speaker 00:
The Maggot case

[00:12:28] Speaker 00:
At 202 after 1370 most frequently cited in this set of briefing, which is directly on point.

[00:12:36] Speaker 00:
It expressly says that it will be reviewed independently at the appellate level.

[00:12:41] Speaker 01:
Your Honor, what MAGA was deciding was whether the Veterans Court had discretion in the first instance to consider newly raised claims.

[00:12:50] Speaker 01:
There, the Veterans Court had initially held that it was precluded as a whole from deciding such issues.

[00:12:55] Speaker 01:
And this court reversed and said, no, you can always determine in the first instance whether or not to waive that.

[00:13:01] Speaker 00:
What does that have to do with the portion I'm citing?

[00:13:03] Speaker 00:
Do you have the case handy?

[00:13:05] Speaker 00:
Turn to page 1378, please.

[00:13:10] Speaker 01:
Yes, Your Honor.

[00:13:12] Speaker 00:
On page 1378 of that decision, it says, although the decision whether to invoke the doctrine is a matter of discretion on balancing the interests at stake, the decision itself is reviewed independently at the appellate level.

[00:13:28] Speaker 00:
And then it cites back to Ledford, and it says, reviewing decision to invoke exhaustion rule as a matter of law.

[00:13:36] Speaker 00:
And the next sentence is, the Supreme Court used the same independent standard in McCarthy.

[00:13:41] Speaker 00:
So why doesn't Maggot control, given that it is an earlier case, and why doesn't it stand for the proposition that not only do we have the obligation to review, but we review it independently as a matter of law, whether or not they properly exercise their discretion?

[00:13:57] Speaker 01:
Yes, Your Honor.

[00:13:58] Speaker 01:
I understand the point.

[00:13:59] Speaker 01:
All I can do is point to Dickens as well.

[00:14:01] Speaker 01:
Of course, we have two panel decisions.

[00:14:04] Speaker 00:
Dickens came after Maggot.

[00:14:05] Speaker 01:
It did, Your Honor.

[00:14:06] Speaker 01:
But we have to reconcile since, as Your Honor well knows, we cannot have a panel overruling a prior panel.

[00:14:12] Speaker 01:
And Dickens itself cited both to Maggot as well as to Cook.

[00:14:15] Speaker 01:
And I'm looking at 1361 there.

[00:14:18] Speaker 01:
It said, because the decision to invoke the doctrine is a discretionary one,

[00:14:21] Speaker 01:
Its application is largely a matter of application of law of fact, a question over which the court lacks jurisdiction.

[00:14:27] Speaker 01:
So I believe the only plausible way to reconcile these two statements, which we have to do, is to understand that what Maggot was saying was that the decision as to whether the Veterans Court even has power in the first instance to invoke issue exhaustion is a legal matter that this court has the ability to address.

[00:14:45] Speaker 00:
There's no way to reasonably interpret the Maggot decision that way.

[00:14:48] Speaker 00:
The paragraph upon which I'm reading from begins

[00:14:51] Speaker 00:
Whether the doctrine of exhaustion should be invoked thus entails a case by case analysis of the competing individual and institutional interests, including whether the Veterans Court should use its authority to remand the matter as appropriate to the board.

[00:15:05] Speaker 00:
Although that decision, whether to invoke the doctrine as a matter of discretion upon balancing the interested state, the decision itself is reviewed independently at the appellate level.

[00:15:14] Speaker 00:
Those two sentences back to back cannot possibly be read the way you would like me to read them.

[00:15:19] Speaker 00:
And whatever it is that the other case says, this one comes first, and I have to follow it.

[00:15:26] Speaker 01:
I understand, Your Honor.

[00:15:27] Speaker 01:
I've offered our position as to how the reconcilable understanding this court may have a different view.

[00:15:31] Speaker 01:
At the end of the day, it's not a dispositive issue in terms of the standard of review that this court is going to apply.

[00:15:36] Speaker 01:
And I'd like to address that point as well.

[00:15:40] Speaker 01:
as opposing counsel said, that this is an issue of first impression as to how to deal with constitutional claims that are raised for the first time at the Veterans Court.

[00:15:48] Speaker 01:
And respectfully, it's simply not.

[00:15:50] Speaker 01:
I mean, Maggot addressed that specifically at 1378 to 79.

[00:15:54] Speaker 01:
Its holding said specifically that Veterans Court jurisdiction over both constitutional claims and statutory claims, both of which were presented in that place, it was a due process claim specifically just like the one here.

[00:16:06] Speaker 01:
Both of those are within the Veterans Court jurisdiction to consider, if raised in the first instance on appeal, but both are within the Veterans Court's discretion to decide how to handle.

[00:16:17] Speaker 01:
And this court in Scott decision, 15 years later, affirmed that understanding of Maggot as being correct, quoted Maggot and said, yes, it said that if you have either constitutional or statutory claims, both are within the Veterans Court's jurisdiction,

[00:16:33] Speaker 01:
But the Veterans Court does have discretion to consider both the first instance or to say that no, they have not met the exhaustion requirements, so they should not be considered.

[00:16:43] Speaker 01:
So that question is simply one that we believe has been decided and is not really before this panel.

[00:16:51] Speaker 03:
Can you address something that I guess I view as something of a threshold question is whether, not whether the constitutional versus other kind of issue is one over which the Veterans Court has jurisdiction.

[00:17:09] Speaker 03:
But the jurisdictional question, whether

[00:17:12] Speaker 03:
this constitutional claim because it attacks a different earlier board decision from the one that the board decision on appeal decided is simply outside the Veterans Court's jurisdiction in this case.

[00:17:33] Speaker 01:
Yes, Your Honor.

[00:17:34] Speaker 03:
Are you adverting to that, I think, in a footnote?

[00:17:38] Speaker 01:
I believe, Your Honor, in our response brief, we presented that issue as an alternative ground.

[00:17:43] Speaker 03:
Oh, as an entire alternative ground.

[00:17:44] Speaker 01:
Yes, Your Honor.

[00:17:45] Speaker 01:
And I want to be careful here, because we did not cross-appeal.

[00:17:47] Speaker 01:
So we're not formally advocating for reversal of the Veterans Court's decision on that ground.

[00:17:52] Speaker 03:
It would still be a dismissal of the appeal.

[00:17:54] Speaker 01:
It would be, Your Honor.

[00:17:56] Speaker 01:
And we do agree that if this Court identifies that as an issue that deserves attention, it would be within this panel's power to address that issue and determine that the Veterans Court lacks jurisdiction.

[00:18:05] Speaker 01:
And I can briefly address why we would agree that that could be an appropriate disposition of this case.

[00:18:11] Speaker 01:
There are two problems here with Mr. Morris's appeal.

[00:18:15] Speaker 01:
The first one, as Your Honor has mentioned, is that we're dealing with two different decisions.

[00:18:19] Speaker 03:
Two different earlier board decisions.

[00:18:21] Speaker 01:
Yes.

[00:18:22] Speaker 01:
Two different, not even board decisions, Your Honor, two different regional office decisions.

[00:18:26] Speaker 03:
The two 1970 August and November 1970 decisions.

[00:18:30] Speaker 01:
Yes.

[00:18:30] Speaker 01:
And I can briefly run through them just to make sure there's no misunderstanding as to what specifically the decisions were and why they're different.

[00:18:38] Speaker 01:
As counsel for Mr. Morris correctly explained, there was a single application in May that raised claims of service connection for a couple of different disabilities, some of which were granted, the psychological one which was denied.

[00:18:50] Speaker 01:
But there ended up being two separate decisions on that claim.

[00:18:53] Speaker 01:
So there was an August decision that was noticed in a September letter.

[00:18:57] Speaker 01:
That is one where the VA regional office said that Mr. Morris's claim for psychiatric disability did not have service connections.

[00:19:05] Speaker 01:
So it was not compensable as a service-connected disability.

[00:19:09] Speaker 01:
Then in November, they sent a second letter which said, I'm sorry, the regional office sent a second letter which said that they were going to grant Mr. Morris a non-service-connected pension because he served in time of war in Vietnam.

[00:19:24] Speaker 01:
They had power under the statute to grant him a pension for this psychological disability.

[00:19:29] Speaker 03:
Just so I'm clear, those are under two separate Title 38 sections.

[00:19:34] Speaker 03:
One is 1110 now, I think maybe 301 back in the day.

[00:19:38] Speaker 03:
And the other is like 1521 or something?

[00:19:40] Speaker 01:
That is correct.

[00:19:41] Speaker 01:
And they have two different entire eligibility standards.

[00:19:44] Speaker 01:
The possibility of receiving a non-service-connected pension requires service in time of war.

[00:19:50] Speaker 01:
So that is a separate standard of proof, separate facts that have to be evaluated.

[00:19:54] Speaker 01:
Obviously here, Mr. Morris did serve during the Vietnam War, and so he was eligible for the non-service-connected pension benefit for his psychological disability.

[00:20:02] Speaker 01:
The service-connected claim obviously follows the more familiar standards where you have to prove that you had an issue that developed during service or a pre-existing issue that was exacerbated.

[00:20:12] Speaker 01:
So two different claims, two different standards.

[00:20:15] Speaker 01:
We acknowledge that all were encompassed within his initial May 1970 claim, as is common, and of course,

[00:20:22] Speaker 01:
VA has the obligation to broadly interpret any claim to raise all possible claims for benefits as they did here appropriately.

[00:20:30] Speaker 01:
But at the end of the day, what we have is two independent decisions by the regional office under two different statutory thresholds for eligibility.

[00:20:39] Speaker 03:
And I do want to make this point as well that- And just to complete the picture so I have it straight, the new constitutional assertion is about a failure of notice from the August 1970 regional office decision.

[00:20:58] Speaker 03:
The board decision on appeal to the Veterans Court was about the November 1970 regional office decision.

[00:21:08] Speaker 01:
That is correct.

[00:21:08] Speaker 01:
And I'll walk through the basic history before the regional office and the board, because I also think it's important to parse out here.

[00:21:15] Speaker 01:
Mr. Morris first raised a challenge to his psychological disability claim in 2007.

[00:21:21] Speaker 01:
So he received benefits on a new claim for PTSD benefits in 2005.

[00:21:30] Speaker 01:
He filed a notice of disagreement with that claim, saying that actually his PTSD was simply a manifestation of his earlier psychological disability.

[00:21:38] Speaker 01:
And that original claim from 1970 had never been finally decided.

[00:21:42] Speaker 01:
Therefore, it remained open in the intervening 35 years.

[00:21:46] Speaker 01:
And so he wanted the initial date of his benefits to be dated from his first claim in 1970.

[00:21:52] Speaker 01:
That was the first argument he raised when he received benefits for PTSD as a service-connected disability 2005.

[00:21:59] Speaker 01:
He presented that issue to the board in 2007.

[00:22:03] Speaker 01:
And he made an argument.

[00:22:05] Speaker 01:
just as he does here, but the notice he received in that August and September combined letter and notice.

[00:22:11] Speaker 01:
was defective, not for constitutional reasons, but under VA's regulations.

[00:22:16] Speaker 01:
He cited to the regulatory requirements for the notice provisions that have to be met.

[00:22:21] Speaker 01:
The board considered that issue and rejected the claim, said no, we believe that according to the notice requirements in place in 1970, it was satisfied.

[00:22:29] Speaker 01:
Of course, this was still under a CUE claim as well because of the intervening time, and that the standards for CUE had not been met.

[00:22:37] Speaker 01:
So he did not challenge that board decision further.

[00:22:40] Speaker 01:
He did not take that claim of defectiveness about the August and September decision up to the Veterans Court.

[00:22:48] Speaker 01:
Instead, he filed a new claim, where he said that the November decision, the one that granted him non-service-connected pension,

[00:22:58] Speaker 01:
He said that decision in actuality was the one that had implicitly denied his claim for service-connected benefits for his psychological disorder.

[00:23:08] Speaker 01:
And that one, he didn't even make a notice argument.

[00:23:10] Speaker 01:
He said it didn't address the substantive lay evidence.

[00:23:13] Speaker 01:
It just failed to meet the standards for addressing all the evidence in the record.

[00:23:16] Speaker 01:
It's a completely separate claim of error.

[00:23:19] Speaker 01:
That went to the board.

[00:23:20] Speaker 01:
in 2014, that's the one that proceeded up to the Veterans Court through 2019 and is now before this court.

[00:23:27] Speaker 01:
That original claim.

[00:23:28] Speaker 03:
As I understand or maybe misunderstand Mr. Carpenter's point, part of what he says is that the board decision about the November 70 decision made a decision

[00:23:44] Speaker 03:
about the earlier August 1970 decision and so and so he can.

[00:23:52] Speaker 03:
make the current constitutional claim, even though they're two different decisions.

[00:23:56] Speaker 01:
Yes, Your Honor.

[00:23:56] Speaker 01:
We would disagree with that.

[00:23:58] Speaker 01:
Certainly, they referenced the August and September decision in 1970.

[00:24:02] Speaker 01:
But what the board said there was, Mr. Morris, you have raised an argument that the November decision was an implicit denial of your claim for service-connected benefits for your psychological disability.

[00:24:14] Speaker 01:
However, you well know, because you raised this claim previously, it was actually the August-September decision that was the one that addressed your service-connection claim.

[00:24:22] Speaker 01:
This claim in November 1970 addressed something completely different.

[00:24:25] Speaker 01:
It was your claim for non-service-connected pension.

[00:24:28] Speaker 01:
And so all the board was explaining, which Mr. Morriswell knew, because he had raised this claim previously, was that you're addressing a decision that actually didn't address what you're talking about.

[00:24:38] Speaker 01:
Any denial of service-connected benefits for the psychological disability occurred in the August-September letter, had nothing to do with the November letter.

[00:24:46] Speaker 01:
That was the only point the board was making there.

[00:24:48] Speaker 02:
Doesn't the November order have some reference to reconsideration or something?

[00:24:53] Speaker 02:
And I think Mr. Carpenter mentioned this.

[00:24:56] Speaker 02:
Is that consistent with the chronology you're giving us?

[00:24:59] Speaker 01:
It does, Your Honor.

[00:24:59] Speaker 01:
But of course, the timeline for any such reconsideration had long since passed by the time he was making his claims of clear and unmistakable error with respect to those decisions 35 years later.

[00:25:10] Speaker 02:
But the November 1970 decision, I think, references reconsideration.

[00:25:14] Speaker 02:
Does it not?

[00:25:15] Speaker 01:
It does, but that's the decision.

[00:25:17] Speaker 01:
And we can look at the record of PENX 28.

[00:25:19] Speaker 01:
The decision specifically says it is granting service-connected benefits for a non-pension.

[00:25:28] Speaker 01:
Well, it doesn't say non-pension.

[00:25:30] Speaker 01:
It says you are basically entitled to pension payment effective May 22, 1970.

[00:25:33] Speaker 01:
And then it provides the...

[00:25:39] Speaker 01:
the dates of the pension effectiveness.

[00:25:42] Speaker 01:
And so as the board determined as a factual matter, which this court is bound by, that this was referring to his separate claim that was construed from his original May application.

[00:25:54] Speaker 01:
We acknowledge they all come from the May application.

[00:25:56] Speaker 01:
But as I mentioned, VA has an obligation to identify all possible claims that could be raised.

[00:26:01] Speaker 01:
This is a totally separate claim that VA identified as encompassed within the scope of his May application, one for non-service-connected pension.

[00:26:10] Speaker 02:
Can I see something unrelated to this?

[00:26:12] Speaker 02:
Had Mr. Morris presented his constitutional argument to the board, could the board have done something about it?

[00:26:18] Speaker 02:
Could it have granted some relief?

[00:26:20] Speaker 01:
Yes, Your Honor.

[00:26:21] Speaker 01:
The claim that he made was that his notice was defective.

[00:26:23] Speaker 01:
That's something that the board hears all the time and makes decisions on all the time, whether a notice properly informed the veteran of the scope of the decision.

[00:26:32] Speaker 01:
And one thing I would note in this.

[00:26:35] Speaker 03:
I just want to, I guess, clarify something.

[00:26:37] Speaker 03:
Yes, Your Honor.

[00:26:38] Speaker 03:
It's one thing to say that the Veterans Court could decide the constitutional claim if it was presented to the board and the board ruled on it.

[00:26:52] Speaker 03:
It's another thing to say that it could present that to the board even if the board had said,

[00:26:59] Speaker 03:
Why are you talking to us about the August 1970 decision?

[00:27:03] Speaker 03:
This is about the November 1970 decision.

[00:27:06] Speaker 03:
In that situation, I guess my understanding of your Veterans Court jurisdictional argument is that if the board hadn't ruled on it, it still would not be within the Veterans Court's jurisdiction.

[00:27:23] Speaker 03:
Not because it was constitutional, but because it was about the wrong claim.

[00:27:26] Speaker 01:
That's correct, Your Honor.

[00:27:27] Speaker 01:
So there are different claims.

[00:27:29] Speaker 01:
There's also a different standard under CUE claims, specifically.

[00:27:32] Speaker 01:
I see my time has elapsed if I can provide a free answer to both questions.

[00:27:36] Speaker 01:
There's also a different standard for CUE claims, that even above and beyond normal claim differences in a CUE context, and clear precedent from this court has established this as well.

[00:27:46] Speaker 01:
Each individual argument, even if we're talking about the same claim, same decision, is nonetheless a separate claim of error that has to be presented specifically.

[00:27:55] Speaker 01:
And there's no timeline.

[00:27:56] Speaker 01:
And there's no race to judicata issue.

[00:27:57] Speaker 01:
These claims can be presented at any time.

[00:27:59] Speaker 01:
Mr. Morris can go back today and submit his claim of constitutional error regarding the August and September 1970 decision.

[00:28:07] Speaker 01:
And he can have that heard.

[00:28:08] Speaker 01:
There's absolutely no bar here.

[00:28:10] Speaker 01:
that's going to prevent these claims from being addressed by VA.

[00:28:12] Speaker 01:
And then just to return back to Your Honor's question, the board has the authority to decide if a notice is defective, whether raised under VA statute and regulatory authorities or constitutional authority.

[00:28:28] Speaker 01:
And I would simply note that the obligations VA imposes for notice requirements is actually higher than the constitutional due process standard.

[00:28:36] Speaker 01:
So that's another reason why I think the board maybe gave somewhat short shrift to some of these arguments.

[00:28:42] Speaker 01:
At the end of the day, if the VA has met its own regulatory and statutory requirements for notice of a decision, it has far exceeded anything that would be independently required under the due process clause.

[00:28:55] Speaker 01:
If there are no other questions.

[00:28:57] Speaker 03:
Thank you for your argument.

[00:28:58] Speaker 01:
Thank you, Your Honor.

[00:29:13] Speaker 04:
It appears to Mr. Morris that the government has now conceded that the issue should have been considered by the Veterans Court in the first instance under Maget, based upon the reading of Maget, which I will say in candor was not my reading of Maget, that that decision

[00:29:35] Speaker 04:
does cover constitutional questions.

[00:29:37] Speaker 04:
So the question here is whether or not in an independent review of the decision made by the Veterans Court, and the only decision they made was not to review on constitutional grounds, was that a correct decision?

[00:29:53] Speaker 04:
Should the Veterans Court have or have not addressed the constitutional question?

[00:29:59] Speaker 04:
And clearly, it is not simply a question of the Veterans Court has the discretion to say no.

[00:30:07] Speaker 04:
Because as Chief Judge Moore pointed out in Maget, it is a question of whether or not this court will independently review the decision not to review.

[00:30:19] Speaker 04:
And under that independent review, this court should find that the Veterans Court erred in not considering

[00:30:27] Speaker 04:
the constitutional question in the first instance.

[00:30:31] Speaker 04:
The government wants to come before this court now and argue what those constitutional parameters should or should not have been.

[00:30:38] Speaker 04:
That should have been done before the Veterans Court so that the Veterans Court could have made that decision in the first instance.

[00:30:47] Speaker 04:
And if we disagreed with the outcome of that decision, then we could have appealed that for a de novo review by this court.

[00:30:55] Speaker 04:
But now, instead, we are in the limbo of whether or not this is or isn't a proper matter for consideration.

[00:31:08] Speaker 04:
It was a proper matter for consideration.

[00:31:11] Speaker 04:
To address your question, Judge Toronto, about what was within the Veterans Court's jurisdiction, the Veterans Court's jurisdiction is premised by a final decision of the board.

[00:31:25] Speaker 04:
This was a final decision of the board that did not change the outcome of the decision that was made in the first instance based upon a reconsideration of that.

[00:31:42] Speaker 04:
All of that took place within a three-month window.

[00:31:46] Speaker 04:
That was all an adjudication of the original claim.

[00:31:50] Speaker 04:
And contrary to what the government says to you, there is no decision denying service connection for a psychosis.

[00:32:00] Speaker 04:
The original decision does not make that determination.

[00:32:05] Speaker 04:
It simply says, in the absence of any medical evidence in service relative to service connection, disability is denied.

[00:32:16] Speaker 04:
When we get to the notice of that, there is no reference to why that decision was denied or even that it was denied.

[00:32:28] Speaker 04:
The only box that is marked with an X is in reference to the pension claim.

[00:32:34] Speaker 04:
which is then, upon reconsideration in December of 1970, determined that, in fact, he is entitled to pension.

[00:32:44] Speaker 04:
But where is the reconsideration decision on the original claim and notice

[00:32:51] Speaker 04:
that gives him a due process opportunity to appeal the denial of service connection.

[00:32:58] Speaker 04:
They're in neither.

[00:32:59] Speaker 04:
And the government stands before this court and says to this panel that there are more protections afforded by the VA's regulation than there are under the Constitution.

[00:33:12] Speaker 04:
And that is certainly a true statement.

[00:33:16] Speaker 04:
But it only became effective in 1972.

[00:33:19] Speaker 04:
There was no regulation in 1970 that afforded those additional benefits.

[00:33:27] Speaker 04:
So the quandary for this veteran is, how does he get this issue before the court?

[00:33:34] Speaker 04:
The only way he can get it is through the vehicle of Q. The government is correct.

[00:33:40] Speaker 04:
We did not appeal the first denial.

[00:33:43] Speaker 04:
We went back and, in good faith, made another effort

[00:33:47] Speaker 04:
to revise based upon Q, based upon the succeeding decision.

[00:33:53] Speaker 04:
But the Q decision is the only decision that implicates the jurisdiction of the Veterans Court.

[00:34:00] Speaker 04:
And once that jurisdiction was implicated, which it clearly was, the Veterans Court had an obligation to address the constitutional question.

[00:34:10] Speaker 04:
This court must so find and must reverse the board to the Veterans Court decision to deny consideration

[00:34:17] Speaker 04:
by the Veterans Court of that constitutional claim.

[00:34:21] Speaker 04:
This case should be reversed and remanded with instructions directing the Veterans Court to consider the constitutional question.

[00:34:30] Speaker 03:
Thank you very much, Your Honor.

[00:34:32] Speaker 03:
Thank you to both counsel.

[00:34:34] Speaker 03:
That case is submitted.