[00:00:00] Speaker 03:
The next and final case is number 21, 1928, Sheppard versus McDonough.

[00:00:06] Speaker 03:
Okay, Ms.

[00:00:07] Speaker 03:
Hoffman, you can begin.

[00:00:11] Speaker 00:
May I please the court?

[00:00:13] Speaker 00:
My name is Megan Hoffman and I represent William Sheppard.

[00:00:18] Speaker 00:
The VA claim system is pro-veteran and non-adversarial.

[00:00:23] Speaker 00:
Most veterans, including Mr. Sheppard, are not represented by attorneys when they're making their claims.

[00:00:28] Speaker 00:
So the system has some safeguards for them.

[00:00:31] Speaker 00:
And one of those is that when the board wants to dismiss a case because of jurisdiction, it has to give a veteran notice and an opportunity to be heard on that jurisdiction.

[00:00:40] Speaker 00:
The veterans whose claims are closed can reopen them with new immaterial evidence.

[00:00:45] Speaker 00:
And according to both statute and law from this court, new immaterial evidence is jurisdictional.

[00:00:52] Speaker 00:
So section 20.101b,

[00:00:55] Speaker 00:
offers protections to veterans whose claims could be dismissed for jurisdiction.

[00:00:59] Speaker 00:
And that includes requests to reopen, because that's a jurisdictional question for the Board of Veterans Affairs.

[00:01:05] Speaker 00:
But the board never notified Mr. Sheppard of the possible jurisdictional defect it saw in his case.

[00:01:12] Speaker 00:
It dismissed his case.

[00:01:13] Speaker 00:
It didn't give him notice on an opportunity to be heard.

[00:01:16] Speaker 00:
And the Veterans Court then held

[00:01:18] Speaker 00:
that what the board did was correct, and the regulation did not apply to requests to reopen.

[00:01:23] Speaker 00:
So that was wrong for two main reasons.

[00:01:26] Speaker 00:
The first is that the regulation's plain language is unambiguous.

[00:01:30] Speaker 00:
It implies to all jurisdictional issues.

[00:01:33] Speaker 00:
And the second is that the board unfairly surprised Mr. Shepherd with a jurisdictional issue, and then it denied him a marriage review of the evidence.

[00:01:40] Speaker 00:
Because of the Veterans Court's holding, Mr. Shepherd did not get the one appeal on the merits of the law guarantee

[00:01:47] Speaker 00:
The plain language applies to request to reopen for new and material evidence.

[00:01:51] Speaker 00:
It is not ambiguous.

[00:01:53] Speaker 00:
It requires the board to give notice and a chance to be heard before it dismisses for lack of jurisdiction.

[00:01:58] Speaker 00:
And the board didn't do that.

[00:02:00] Speaker 00:
It denied Mr. Shepard's request to reopen and dismissed the case without giving him a chance to tell the court how the evidence he had already submitted was new and material.

[00:02:10] Speaker 00:
And then the Veterans Court ignored the regulations plain language.

[00:02:14] Speaker 00:
The Veterans Court held the regulation did not apply to request to reopen because those claimants are aware from the start that UN material evidence is an issue.

[00:02:24] Speaker 00:
And because of that, it said the board didn't raise the jurisdictional issue on its own and therefore the regulations notice requirements didn't apply.

[00:02:32] Speaker 00:
But the Veterans Court was wrong.

[00:02:34] Speaker 00:
The board did raise the jurisdictional issue because the AOJ had already reopened the claim.

[00:02:40] Speaker 00:
So Mr. Sheppard believed the issue was settled, and Mr. Sheppard was appealing on the merits.

[00:02:46] Speaker 03:
But the board resurrected him at year 11.

[00:02:48] Speaker 03:
What about the board's harmless error-holding?

[00:02:51] Speaker 03:
Even if you assume that in this situation there should have been notice, how was the veteran harmed by that?

[00:02:59] Speaker 03:
He was given the opportunity for a hearing before the board.

[00:03:02] Speaker 03:
He declined the hearing.

[00:03:04] Speaker 03:
You not, in your brief, indicated any evidence that he would have submitted.

[00:03:10] Speaker 03:
in response to the issue of reopening at the board, how can it be that there's not a harmless error criterion that's applicable in this context?

[00:03:29] Speaker 00:
Yes, Your Honor.

[00:03:31] Speaker 00:
First off,

[00:03:33] Speaker 00:
The Veterans Court's harmless error analysis was unlawful because it assumed the evidence that wasn't there.

[00:03:41] Speaker 00:
And the evidence that wasn't there was what Mr. Shepard would have been able to argue on the issue of new and material evidence.

[00:03:48] Speaker 03:
I don't understand what you're saying.

[00:03:49] Speaker 03:
Harmless error.

[00:03:50] Speaker 03:
You, as the person arguing for a reversal, have the obligation to establish harmful errors.

[00:04:01] Speaker 03:
And the board found that there was no showing of harmful error.

[00:04:06] Speaker 03:
What's wrong with that?

[00:04:09] Speaker 00:
So I want to go back to the first part that were the second part of the question that you just asked me, which is that there was no evidence or that there that no one had ever pointed to any evidence that Mr. Sheppard had submitted that was new material.

[00:04:29] Speaker 00:
nine through 14, or possibly 10 through 14 of his brief, he points to his counsel at that time, cited to, you know, pages and pages and pages of records, which would have established a nexus and therefore service connection for both of the claims that were on appeal at the board.

[00:04:49] Speaker 00:
So that's factually incorrect.

[00:04:55] Speaker 00:
And then the second thing is that the Veterans Court is prohibited

[00:05:03] Speaker 00:
have provided or the argument that he would have provided on his behalf if he knew that he was actually arguing from new and material evidence for reopening based on that instead of service connection on the merits.

[00:05:16] Speaker 02:
But you didn't tell the Veterans Court or give any kind of indication to the Veterans Court of what evidence could have been offered and therefore that that's what makes the error harmful.

[00:05:29] Speaker 02:
It's not that you didn't offer it at the board.

[00:05:31] Speaker 02:
But when you argue air to the Veterans Court, you can't just argue air.

[00:05:35] Speaker 02:
You have to show how it was harmful.

[00:05:37] Speaker 02:
That burden remains on you.

[00:05:39] Speaker 02:
And the Veterans Court found that you didn't meet it.

[00:05:41] Speaker 02:
And I mean, we don't even have jurisdiction to review the factual question of whether there was harmless air, right?

[00:05:50] Speaker 00:
Very true, Your Honor.

[00:05:51] Speaker 00:
And in this court, that's certainly not what

[00:05:54] Speaker 00:
So to go back to what happened at the Veterans Court, Mr. Shepard did submit evidence and he didn't point to evidence that was new and material.

[00:06:06] Speaker 03:
Okay, but where's the legal error by the Veterans Court in finding that this was not prejudicial, that it was harmless error?

[00:06:17] Speaker 03:
Where's the legal error in that?

[00:06:20] Speaker 00:
Your honor, the legal error is that Mr. Shepard was, is that the Veterans Court did not give him the opportunity and therefore it assumed the evidence that he would have submitted in his behalf if he knew that he was arguing for new and material evidence for reopening based on fact.

[00:06:40] Speaker 00:
And so according to Sullivan v. McDonald, which is this court's case, the Veterans Court can't engage in that kind of improper appellate fact-finding.

[00:06:50] Speaker 00:
It's simply not something that it can do.

[00:06:54] Speaker 00:
And there's a long line of cases to include McGee, Moore, and Sullivan.

[00:06:59] Speaker 00:
That's sort of the trifecta for the proposition that that's something that the Veterans Court cannot do.

[00:07:16] Speaker 00:
And so that's the harmful error.

[00:07:19] Speaker 00:
And it's the same harmful error that Judge Bartley, down at the Veterans Court, identified in her dissent.

[00:07:35] Speaker 00:
Your Honor, the Veterans Court ignored the regulations plain language.

[00:07:38] Speaker 00:
And it held that 20.101D's protections did not apply to request reopen because claimants are aware from the start that human material evidence is an issue.

[00:07:47] Speaker 00:
Because of that, it said, the board didn't raise the jurisdictional issue on its own and the regulations notice requirements didn't apply.

[00:07:54] Speaker 00:
But that is wrong.

[00:07:55] Speaker 00:
The board did raise the jurisdictional issue because the AOJ had already reopened the claim.

[00:08:02] Speaker 00:
The board's dismissal unfairly surprised and prejudiced Mr. Shepard.

[00:08:06] Speaker 00:
He thought he was litigating his right to service connection, not whether he had submitted new and material evidence.

[00:08:12] Speaker 00:
He thought that because his case was open, the board would give his case a full review, which includes thousands of pages of documents and evidence that he had submitted on appeal and since he had first gotten a rating decision from the VA.

[00:08:28] Speaker 00:
So it deprived him, that error deprived him of the de novo review he would have gotten if the board had not dismissed for a lack of new material evidence.

[00:08:39] Speaker 00:
So once again, the Veterans Court assumed the evidence Mr. Shepard would have submitted on his behalf.

[00:08:43] Speaker 00:
It cannot do that.

[00:08:44] Speaker 00:
And it denied him the further case development he would have gotten.

[00:08:49] Speaker 00:
He would have benefited from the duty to assist.

[00:08:52] Speaker 00:
Once his case was reopened for new material evidence, the duty to assist applies.

[00:08:57] Speaker 00:
And so he would have gotten a full review of his evidence, and he also very likely would have gotten a medical examination, which for his mental health condition, he still has never had one.

[00:09:09] Speaker 00:
Veterans are entitled to Section 20.101D's protections before their cases are dismissed for jurisdictional issues.

[00:09:17] Speaker 00:
And the Veterans Court was incorrect when it said that this regulation does not apply to request real thing.

[00:09:24] Speaker 00:
This court should hold that Section 20.101D

[00:09:27] Speaker 00:
applies to board dismissals for lack of new material evidence.

[00:09:30] Speaker 00:
It should remand this case back to the board to give Mr. Sheppard his opportunity to provide evidence proving the board's jurisdiction.

[00:09:39] Speaker 00:
And pending further questions from the court, I'll reserve the rest of my time.

[00:09:42] Speaker 03:
Okay.

[00:09:43] Speaker 03:
Thank you, Ms.

[00:09:44] Speaker 03:
Hoffman.

[00:09:45] Speaker 03:
We'll hear from Mrs. Sinani.

[00:09:51] Speaker 01:
Good afternoon, Your Honors.

[00:09:53] Speaker 01:
May it please the court

[00:09:54] Speaker 01:
I will begin with the harmless error issue first.

[00:09:59] Speaker 01:
Under the circumstances of this case, even if the Veterans Court incorrectly determined that Section 20.101D of Title 38 of the Federal Code of Regulations did not apply to Mr. Shepard's case, the court would nevertheless

[00:10:24] Speaker 01:
need to affirm the federal court's decision based on its prejudicial error findings.

[00:10:32] Speaker 01:
First of all, the court applied the correct legal standard to respect the partner's error.

[00:10:39] Speaker 01:
Mr. Shepard has not demonstrated why the court's analysis there was wrong.

[00:10:45] Speaker 01:
Pursuant to the Supreme Court decision in Sanders,

[00:10:49] Speaker 01:
The hardest error analysis involves a case-specific application of judgment based on examination of the record, and that is what the Veterans Court did.

[00:11:00] Speaker 01:
The court examined the record, and it noted that Mr. Shepard had not identified in either his initial or applied brief to the Veterans Court any evidence that he had submitted

[00:11:12] Speaker 01:
And the federal court also had noted that Mr. Sheppard had expressed to the board his intent to quote, not try and submit or not try and provide any new information on quote, on his claims.

[00:11:26] Speaker 01:
The Supreme Court in Sanders has instructed that these are the exact type of issues that the court should evaluate in a harmless error analysis.

[00:11:39] Speaker 01:
Mr. Sheppard

[00:11:40] Speaker 01:
Mr. Shepard's counsel just stated that he had pointed to new and material evidence that he would have submitted.

[00:11:49] Speaker 01:
That information is not included in his briefing.

[00:11:53] Speaker 01:
In his reply brief, Mr. Shepard points to evidence already on the record and asserts that the board, had it considered his claim on the merits, would have reached the decision, the conclusion, that his

[00:12:10] Speaker 01:
that his disabilities were service-connected.

[00:12:13] Speaker 01:
If we look at pages 34 and 35 of the appendix, the board did just that.

[00:12:18] Speaker 01:
It looked at the evidence that was presented when the initial claim was first denied and all the evidence since then and concluded that service connection still was not established and therefore new and material evidence was not submitted.

[00:12:34] Speaker 01:
Although Mr. Shepherd may continue to assert without any real specifics that you would have done something differently, there's no legal error in the Veterans Court examining all the relevant facts and concluding otherwise.

[00:12:47] Speaker 01:
In fact, this court lacks jurisdiction to review the Veterans Court's application of law to the facts of the case.

[00:12:53] Speaker 01:
So on that basis, the court should affirm the Veterans Court decision.

[00:12:58] Speaker 01:
I also wanted to point out that Mr. Shepherd's counsel

[00:13:01] Speaker 01:
mentioned a few cases that I believe pertain to footnote 44 in the reply brief.

[00:13:08] Speaker 01:
None of those cases, however, address the issue of harmless error.

[00:13:13] Speaker 01:
And therefore, they are inalienable.

[00:13:21] Speaker 01:
With respect to, additionally, the Veterans Court also properly determined that section 20.101D did not apply to the circumstances

[00:13:31] Speaker 01:
of Mr. Shepard's case when he was trying to reopen his place.

[00:13:36] Speaker 03:
He would agree, wouldn't you, that there can be circumstances in which this regulation would be violated by switching from a decision to reopen to a decision that there shouldn't have been any reopening in the first place.

[00:13:54] Speaker 03:
For example, if the

[00:13:59] Speaker 03:
decision to reopen involved a controversy about whether evidence was new or not.

[00:14:08] Speaker 03:
The veteran, having received a decision from the RO that the evidence was in fact new, wouldn't before the board have information that he should continue to argue the newness of the evidence.

[00:14:28] Speaker 03:
when he's arguing the merits of service connection.

[00:14:31] Speaker 03:
Those are two distinct issues.

[00:14:33] Speaker 03:
So you could have circumstances under which the failure to advise him of the jurisdictional issue would be prejudicial, correct?

[00:14:42] Speaker 01:
Your Honor, we submit that the plain language... Wait, wait, wait.

[00:14:47] Speaker 03:
No, no, no, no.

[00:14:49] Speaker 03:
Please answer my question.

[00:14:51] Speaker 01:
Your Honor, our position is that no, not in the most circumstances.

[00:14:57] Speaker 01:
No.

[00:14:59] Speaker 03:
Why not?

[00:15:01] Speaker 01:
That is based on the language of the regulation, the illustrative examples provided there in the regulatory context and as well as... Wait a second.

[00:15:13] Speaker 03:
It would be completely unfair in that circumstance to have the board say on its own that we're refusing to reopen because the evidence is not new.

[00:15:26] Speaker 03:
without giving him the opportunity to argue that it was new.

[00:15:34] Speaker 01:
Your Honor, that is precisely that those are the circumstances that were presented in this court's decision in Jackson.

[00:15:42] Speaker 03:
No, it was not the circumstances of Jackson.

[00:15:47] Speaker 03:
That's exactly why I'm asking you about the hypothetical.

[00:15:51] Speaker 03:
It's a dispute about whether evidence is new or not, which is not the same.

[00:15:56] Speaker 03:
as whether there was service connection.

[00:16:03] Speaker 01:
Correct, Your Honor.

[00:16:03] Speaker 01:
I mean, the entirety of the analysis of whether new and material evidence was submitted, of course, whether new evidence was submitted is a subpart of that analysis.

[00:16:18] Speaker 01:
The board would also determine whether the evidence is material.

[00:16:22] Speaker 01:
And understandably, there's overlap between

[00:16:26] Speaker 01:
that analysis and whether service connection was established.

[00:16:30] Speaker 03:
The board has... But newness is not an aspect of service connection.

[00:16:34] Speaker 03:
Once you reopen, newness is not being argued anymore.

[00:16:39] Speaker 03:
So if the board is going to go on newness, isn't it fair that the veteran should have notice of that and the opportunity to put in additional evidence on the newness issue?

[00:16:53] Speaker 01:
Under the regulation, as we read it based on the language and the context, that is not the interpretation that we take, Your Honor.

[00:17:05] Speaker 03:
You may have a problem with that interpretation in some future case.

[00:17:12] Speaker 01:
This court in Simms v. Shineski, 578 F3D 1332,

[00:17:19] Speaker 01:
This is not a case that we cited in our brief, but I alerted Ms.

[00:17:23] Speaker 01:
Hoffman in advance that I'm not bringing it up.

[00:17:26] Speaker 01:
The court stated that although the question of whether there is new and material evidence to reopen the claim and the question of whether upon reopening the claimant is entitled to the refreshments benefits are distinct, they are components of a single claim, which are clearly within the board's jurisdiction.

[00:17:46] Speaker 01:
and elsewhere the board has held that the board is an agent of the Department of Veterans Affairs and it has the final authority to adjudicate the claim.

[00:18:00] Speaker 01:
So regardless of what the regional office did below, the board has that responsibility

[00:18:08] Speaker 01:
to reassess whether new material evidence is admitted.

[00:18:11] Speaker 01:
Sure.

[00:18:11] Speaker 03:
That's absolutely true.

[00:18:13] Speaker 03:
But that does not bear on whether the veteran should have notice that the newness of the evidence is an issue, an issue which, in my hypothetical, he thought was resolved at the RO.

[00:18:27] Speaker 03:
And if it's going to be an issue at the board level, it seems as though the regulation says he should have notice of that.

[00:18:36] Speaker 01:
The regulation states when the board on its own initiative decides that there's a jurisdictional defect... Why isn't that precisely the hypothetical here?

[00:18:51] Speaker 02:
That the issue has been fully resolved of whether it's new or not.

[00:18:56] Speaker 02:
You don't need to readdress new to resolve whether the evidence shows service connection.

[00:19:03] Speaker 02:
that to the extent the board raises it, it is on its own initiative.

[00:19:10] Speaker 02:
There was no reason to re-raise it because the claim has been re-opened and all you're looking at is service connection.

[00:19:15] Speaker 02:
That's not the facts here.

[00:19:17] Speaker 02:
I mean, even if we get to any of this because of the harmless air analysis, but I mean, you wrote the regulation that gives these people the opportunity to do it.

[00:19:25] Speaker 02:
So if that's what you

[00:19:26] Speaker 02:
wrote, they get it.

[00:19:29] Speaker 02:
I don't understand why you're fighting this hypothetical.

[00:19:31] Speaker 02:
I know you don't want to explode the whole universe of what they get noticed on, and when it's a question that's duplicated at the opening and merit stage, it seems like you have a better argument.

[00:19:47] Speaker 02:
But if it's a question that has no relation to the ultimate merits and service connection at the end,

[00:19:54] Speaker 02:
Why wouldn't you have to give the veteran notice under your regulation?

[00:20:00] Speaker 01:
Again, the language and the regulatory history demonstrate that the regulation applies in circumstances where there are... Here's the real problem.

[00:20:11] Speaker 01:
I get it.

[00:20:12] Speaker 02:
Here's the real problem I see with your position on this is, I think you wrote a really broad regulation and you didn't intend it to cover it because you have all these examples.

[00:20:22] Speaker 02:
But if you want it to be more limited than it is, you need to change the regulation.

[00:20:26] Speaker 02:
Because on its face, it doesn't seem like it would cover this new issue, or that it would cover this new issue, that you would have to give them notice.

[00:20:34] Speaker 02:
Maybe that's not what the secretary intended, if you look at it in the context of the regulatory history.

[00:20:39] Speaker 02:
But if you look at the plain language of the regulation, it seems like it covers it.

[00:20:48] Speaker 01:
The examples are illustrative of what circumstances are to be considered.

[00:20:54] Speaker 02:
OK, but you're not arguing, are you, for any kind of our deference or anything like that here?

[00:21:00] Speaker 02:
I mean, we've got a regulation that's pretty broad and pretty plain on its face.

[00:21:04] Speaker 02:
So I mean, if we determine that it's not ambiguous and that it plainly says when it's a jurisdictional issue,

[00:21:14] Speaker 02:
that at least is not overlapping with merits, whatever we decided, that regulation applies.

[00:21:18] Speaker 02:
The fact that you may not have intended it to apply through these examples doesn't overcome the plain language, does it?

[00:21:27] Speaker 01:
We are not arguing our deference here, Your Honor.

[00:21:31] Speaker 01:
We believe that the plain language and the regulatory context does not cover the situation here.

[00:21:38] Speaker 01:
Unless the court has any other questions for the reasons addressed here today and those addressed in our brief, we respectfully request that the court affirm the veteran court's decision.

[00:21:49] Speaker 01:
Thank you.

[00:21:50] Speaker 03:
Thank you, Ms.

[00:21:50] Speaker 03:
Sinani.

[00:21:51] Speaker 03:
Ms.

[00:21:51] Speaker 03:
Hoffman?

[00:21:56] Speaker 00:
Thank you, Your Honor.

[00:21:59] Speaker 00:
Your Honor, I like the hypothetical that you just gave opposing counsel.

[00:22:05] Speaker 00:
We agree that the veteran should be able to have notice of a problem with the nudists of his evidence.

[00:22:13] Speaker 00:
And that's exactly what happened here.

[00:22:15] Speaker 00:
Mr. Sheppard thought that he was going to be litigating service connection and instead he was hit, you know, sort of ambushed by the issue of the nudists of his evidence and what

[00:22:32] Speaker 00:
and the board's dismissal for this jurisdictional issue.

[00:22:39] Speaker 00:
Once again, Your Honor, you're also absolutely right.

[00:22:44] Speaker 00:
This is a very broad regulation, and the VA has had every opportunity to amend it.

[00:22:50] Speaker 00:
It's been in place for at least 20 years, far after Jackson was decided.

[00:22:57] Speaker 00:
I'd also take issue with what opposing counsel said with regards to the examples

[00:23:02] Speaker 00:
that the regulation lists, which are, you know, talk about notice of disagreement or a problem with the substantive appeal of VA 49.

[00:23:10] Speaker 00:
One is that the regulation is, those examples, the regulation says that these are examples, that this is not an exhaustive list, which is something that the Veterans Court sort of skipped right over.

[00:23:22] Speaker 00:
And then the second part of that is that if you want to look at the regulatory history of what the VA was attending, it actually references a case called Barnett v. Brown,

[00:23:31] Speaker 00:
that talks about moot material evidence as a jurisdictional issue.

[00:23:36] Speaker 00:
So there's no universe in which this regulation doesn't apply to this case and to a case in which an appellate like Mr. Shepard is surprised by the newness of evidence.

[00:23:49] Speaker 00:
And all that we're asking is that this court hold the VA to what it said it was going to do for veterans like him who are usually unrepresented.

[00:24:00] Speaker 00:
On the subject of harmless error, we would ask that this court reaffirm its holding in Sullivan, that the Veterans Court cannot guess at the evidence that an appellant would have provided to the court or the argument that he would have provided to the court, which would show the court

[00:24:24] Speaker 00:
In this instance, why his evidence was new and material.

[00:24:27] Speaker 00:
And I once again, I want to draw the court's attention to the fact that Mr. Sheppard did in fact submit evidence or did in fact point to the new and material evidence in his brief to the Veterans Court.

[00:24:50] Speaker 02:
Don't you have a jurisdictional problem there?

[00:24:52] Speaker 02:
If you're arguing that the evidence that they should have looked at was in the record, and the Veterans Court looked at that record evidence and said, we don't think that establishes harmful error, then that's an application of the harmless error standard to the facts of the case.

[00:25:09] Speaker 02:
And even if they were wrong, that's not something we review, right?

[00:25:14] Speaker 00:
Your Honor, I don't agree that that's what happened here.

[00:25:17] Speaker 00:
So if you look at Appendix 11, here's what the Veterans Court said.

[00:25:22] Speaker 00:
It said, in addition, at the very top of the page, it said, in addition, Mr. Shepard has identified no newly submitted evidence that shows nexus.

[00:25:30] Speaker 00:
And then the court cited to some pages where, in fact, Mr. Shepard did not cite anything with regard to nexus.

[00:25:38] Speaker 00:
It cited pages four to nine and one to three, but actually the discussion of his new material evidence and why it showed nexus

[00:25:46] Speaker 00:
was on pages nine to 14.

[00:25:50] Speaker 00:
And we don't think that that is a, we don't think that that's a fact-finding.

[00:25:55] Speaker 00:
We think that that's simply the veterans' board.

[00:25:57] Speaker 03:
That's a fact, on your theory, that's a factual error nonetheless, right?

[00:26:02] Speaker 03:
Which we don't have jurisdiction to review.

[00:26:05] Speaker 00:
No, Your Honor, I disagree with that because it's not the, it's not, that factual error didn't actually, it didn't bear on what happened at the board.

[00:26:15] Speaker 00:
So it wasn't,

[00:26:22] Speaker 00:
When they did it, they missed that evidence, and in doing so, they didn't do notice of all the arguments that Mr. Sheppard made.

[00:26:34] Speaker 00:
As a result, they violated Section 7261B2, and that is a legal error.

[00:26:40] Speaker 00:
That is not a factual error.

[00:26:47] Speaker 00:
To the extent that the Veterans Court missed an entire argument that Mr. Shepard made or missed entire pieces of evidence that he pointed to, we disagree that that's a factual error.

[00:26:58] Speaker 00:
That's a legal error under 7261B2.

[00:27:02] Speaker 00:
So I'm almost out of time.

[00:27:06] Speaker 00:
We would ask that this court reaffirm its holding of Sullivan.

[00:27:10] Speaker 00:
We would ask that this court

[00:27:17] Speaker 00:
evidence that Mr. Sheppard would have presented if he was given the opportunity that he was due under the regulation.

[00:27:25] Speaker 00:
We ask that this court reverse the Veterans Court and remand for Mr. Sheppard to be given the proper notice and opportunity to submit evidence and argument before his case is dismissed.

[00:27:40] Speaker 00:
Thank you very much.

[00:27:41] Speaker 03:
Okay, thank you.

[00:27:42] Speaker 00:
Thank you for the questions.

[00:27:42] Speaker 03:
Thank you for the counsel.

[00:27:44] Speaker 03:
The case is submitted.

[00:27:45] Speaker 03:
That concludes our session for this morning.