[00:00:00] Speaker 03:
The next case is number 22-11-04.

[00:00:24] Speaker 04:
Thank you, Your Honor.

[00:00:25] Speaker 04:
May it please the court?

[00:00:28] Speaker 04:
Before getting into our argument, I want to just emphasize that we have to keep in mind the unique aspects of this appeal.

[00:00:34] Speaker 04:
Number one, it is a clear and unmistakable error issue.

[00:00:37] Speaker 04:
And what that means is that the evidence will not change, and we're restricted to what the evidence and the law at the time of the decision being challenged was.

[00:00:48] Speaker 04:
And number two, in that same vein, the facts of this case are undisputed.

[00:00:53] Speaker 04:
the Veterans Court at Appendix 3 at the top clearly clearly notes that the evidence demonstrates a mild amount of pain throughout the entire range of motion and that the the examiner identified mild

[00:01:16] Speaker 04:
was additionally limited by pain.

[00:01:19] Speaker 04:
What we also know is that the board determined that under the current law, 38 CFR 4.59 would entile painful motion in the shoulders to a 20% rate.

[00:01:29] Speaker 04:
So the only question that remains in this appeal is the pure legal issue of was there a change in law between 2003 and the present.

[00:01:38] Speaker 04:
And we believe that, because of that unique circumstance of this particular issue, that the Veterans Court was required to address that legal issue as opposed to remanding it.

[00:01:49] Speaker 04:
We see this case as akin to Adams, where the appellant there argued, can I just ask you about, this is a non-competitive decision, right?

[00:02:01] Speaker 03:
Because it's a remand.

[00:02:05] Speaker 03:
I get that your argument is you're entitled to a decision from the Veterans Court instead of a remand.

[00:02:11] Speaker 03:
But the rest of the Williams criteria don't seem to be met here.

[00:02:16] Speaker 03:
I mean, even if you have your legal issue, it has to be something that's going to escape review or the like.

[00:02:22] Speaker 03:
But you could very well get benefits for your client on a remand.

[00:02:26] Speaker 04:
disagree with that your honor and the reason yes your honor and because because as I as I began this is a Q case and so the law and the facts will not change the board has already determined that

[00:02:41] Speaker 04:
that the law, there was a change in law in 2016.

[00:02:45] Speaker 04:
The Veterans Court's order was explicit to only better explain that legal ruling.

[00:02:51] Speaker 04:
The Veterans Court did not say, reassess that legal determination, determine whether that's actually what the law says, and then make a new decision.

[00:03:00] Speaker 02:
And so the veterans- Isn't that implicit in the remand?

[00:03:03] Speaker 02:
They're saying, you have not given an explanation, so we, the Veterans Court, can't do our review.

[00:03:09] Speaker 02:
you need to give us a better explanation doesn't that leave open the possibility that they will fail to give an explanation because the law in fact was not what the board asserted it was.

[00:03:19] Speaker 04:
I I don't read the I I don't read the case to to to imply that your honor and Absolutely the the VA has been consistent in their in their approach in not and granted This is outside the record in this case, but I can tell you from experience with my veterans I have about a dozen on a similar issue

[00:03:44] Speaker 04:
the VA is is is is steadfast that there was a change in law in 2016 and That it was required prior to that time to assign this 10% rating as the board said here irrespective of the diagnostic code assigned and so the the remand order here is only the only thing that it's going to give mr. Garcia Medina is a different explanation for the same outcome and I

[00:04:11] Speaker 04:
And we point to that the Veterans Court's order, again, does not say or even imply that you can come to a different conclusion, only that it failed to adequately support its determination.

[00:04:26] Speaker 04:
And even though the Veterans Court did, and we acknowledge that it did allow us to present.

[00:04:31] Speaker 03:
I mean, I get your argument that isn't the problem with this is the Veterans Court can't discern the basis for the VA's legal argument here.

[00:04:41] Speaker 03:
And it's sending it back and telling the board to look at this.

[00:04:44] Speaker 03:
And if the board wants to continue this argument, then it has to provide a more detailed explanation.

[00:04:50] Speaker 03:
And if the board gets it back and say, oh, well, we don't really have anything, maybe we're wrong, it can change its mind.

[00:04:58] Speaker 03:
You're saying they're not going to, but the Veterans Court doesn't know that, and we don't know that.

[00:05:03] Speaker 01:
Isn't there also a possibility that the Veterans Court would

[00:05:07] Speaker 01:
this fine.

[00:05:11] Speaker 01:
I'm sorry I'm not sure even if the board provided the reason that there's review by the veterans court.

[00:05:19] Speaker 04:
Yes, Your Honor.

[00:05:20] Speaker 04:
And that's, again, after another remand.

[00:05:22] Speaker 04:
But again, the veterans, the secretary, both at the board and at the Veterans Court, is steadfast in their position that there was a change in law, that prior to 2016, the 20% rating for the shoulder.

[00:05:37] Speaker 03:
Well, I mean, it does have to be treated that, I know you don't agree, but that the secretary is right.

[00:05:42] Speaker 03:
And so the board goes back, actually explains why it believes that.

[00:05:46] Speaker 03:
And it comes back up, and the Veterans Court agrees with the Secretary.

[00:05:50] Speaker 04:
Absolutely, Your Honor.

[00:05:50] Speaker 04:
That's a potential.

[00:05:53] Speaker 04:
But we want a decision, and a decision from the Veterans Court that we could potentially challenge here before this Court, and to settle this question once and for all.

[00:06:02] Speaker 03:
I think that's what the Veterans Court wants, too.

[00:06:05] Speaker 03:
It just is not going to rule on a question that it can't discern what the Secretary's legal existence is.

[00:06:13] Speaker 04:
yes your honor I think that's that's that's a way to read the Veterans Court's decision but again we would we would we would argue as we did in our briefing that that the Veterans Court reviews de novo all legal issues and so whatever explanation

[00:06:34] Speaker 03:
The Veterans Court does reasons and, I mean, you know this, they do reasons and basis revans all the time.

[00:06:39] Speaker 03:
And a lot of them are on legal issues.

[00:06:42] Speaker 04:
Yes, Your Honor.

[00:06:43] Speaker 04:
But if I'm here.

[00:06:45] Speaker 03:
I get it.

[00:06:45] Speaker 03:
And a lot of them are in key cases, too.

[00:06:47] Speaker 03:
I mean, I don't, this would open up a huge loophole to our finality here, if you're allowed to immediately appeal a Veterans Court remand in a key case just because it's a legal issue.

[00:07:00] Speaker 04:
I don't agree with that entirely, Your Honor.

[00:07:03] Speaker 04:
I do think it would definitely open up more decisions to this Court's review.

[00:07:09] Speaker 04:
But I think this one is very unique because, as we pointed out in our briefing,

[00:07:15] Speaker 04:
And this, I think, really is the critical aspect that brings it within the Adams exception, is that the facts are undisputed, and they are favorable to the veteran.

[00:07:28] Speaker 04:
We know, based on the board's decision, that the painful motion...

[00:07:34] Speaker 03:
Is that the same thing as the Williams phenomenon?

[00:07:38] Speaker 04:
Yes, Your Honor.

[00:07:39] Speaker 04:
And in Adams, this court found jurisdiction because he alleged and argued that he was entitled to a decision because the evidence did not rebut the presumption of sound condition.

[00:07:53] Speaker 04:
And here, we are arguing that we are entitled to a decision because the law does not support the board's legal ruling.

[00:08:03] Speaker 04:
But again, the facts here are undisputed.

[00:08:07] Speaker 04:
He has painful motion.

[00:08:09] Speaker 04:
We know that under the current interpretation of the law, he's entitled to a 20% rating.

[00:08:14] Speaker 04:
And so the only question is whether there was a change in law such that he is barred under George

[00:08:20] Speaker 04:
from asserting that interpretation.

[00:08:25] Speaker 04:
We think that is a unique enough situation that it would not entail a whole bunch of other Q issues.

[00:08:31] Speaker 04:
Because in other Q issues, there's some question, typically, as in many of the cases or all of the cases.

[00:08:38] Speaker 03:
I still don't understand why the remand is necessarily fruitless.

[00:08:43] Speaker 03:
The secretary's position is that it wasn't changed in the law by the Senate, so you don't get Q benefits.

[00:08:49] Speaker 03:
But the Veterans Court said to the Secretary, you haven't explained at all why you think this was a change in the law.

[00:08:55] Speaker 03:
And you need to explain that to us so we can rule on that issue.

[00:09:01] Speaker 04:
My response, Your Honor, is that it's a de novo review by the Veterans Court.

[00:09:05] Speaker 03:
The court isn't entitled to the Secretary's fully explained views in the decision it's reviewing.

[00:09:13] Speaker 04:
And the Secretary was represented by the General Counsel.

[00:09:17] Speaker 03:
This happens all the time, not just in the VA context, but in any court review of agency decisions.

[00:09:22] Speaker 03:
If we find a basis for the agency's decision,

[00:09:26] Speaker 03:
not to be discernible by the record, even if it's a legal conclusion, we will sometimes send it back to get there fully explaining legal reasoning.

[00:09:35] Speaker 04:
Absolutely, Your Honor.

[00:09:35] Speaker 04:
But again, I think that in this unique context where the facts are undisputed, the facts are favorable,

[00:09:41] Speaker 03:
And the facts are favorable, but they still have to decide, the Veterans Court still has to decide the legal issue of whether it's a change in the law or not.

[00:09:50] Speaker 03:
And it hasn't gotten the fully explained views of the Secretary on that legal.

[00:09:55] Speaker 04:
And the Secretary had an opportunity at the Veterans Court.

[00:09:58] Speaker 03:
And I would submit that if the Secretary at the Veterans Court is different than before, is that it?

[00:10:05] Speaker 04:
It's the same, no, Your Honor, it's the same Secretary.

[00:10:08] Speaker 03:
I mean, it's the Secretary, but it's, you know,

[00:10:11] Speaker 03:
it's not the Board of Judges, it's the Office of General Counsel.

[00:10:15] Speaker 04:
Yes, Your Honor.

[00:10:16] Speaker 03:
Well, isn't the Court entitled to the views of the Board?

[00:10:22] Speaker 04:
It's entitled to the views of the Secretary in the matter of the interpretation of a regulation, Your Honor.

[00:10:28] Speaker 04:
And whether deference is afforded, depending on where we are and whether it's a regulation or statute.

[00:10:34] Speaker 03:
Well, I don't know if it has a whole lot of administrative law for women, but if the Secretary can then engage

[00:10:38] Speaker 03:
no your honor I would not because the underlying the underlying determination remains the same if they change their their reasoning for affirming then yes but if they're

[00:10:55] Speaker 03:
Let's take this hypothetical, because I think this is what the veterans put down.

[00:10:59] Speaker 03:
There's not any legal reasoning here in the board's decision.

[00:11:01] Speaker 03:
I need to see the legal reasoning in order to review it.

[00:11:04] Speaker 03:
If there's no legal reasoning, then the secretary can't come in through the Office of General Counsel and provide legal reasoning that wasn't in the decision at all.

[00:11:13] Speaker 03:
That violates Chenner.

[00:11:19] Speaker 04:
I don't.

[00:11:20] Speaker 04:
I think it's closure honor, but I think that again, because it's a de novo review and it's a interpretation of the law, the board said it means this.

[00:11:29] Speaker 04:
And if the secretary before the court just expands upon that and says, you know, they could have very easily pointed to, here's an official authoritative policy.

[00:11:39] Speaker 03:
I think the court says there's no reason here whatsoever.

[00:11:43] Speaker 03:
If the secretary had come up with its own reasoning and the Veterans Court had adopted that

[00:11:49] Speaker 04:
I don't think I would your honor in that case I want a ruling on this legal issue and I don't think it is a tennery violation in that specific

[00:12:05] Speaker 04:
the hypothetical that you just laid out.

[00:12:10] Speaker 02:
So I think you began by saying the Veterans Court was required to resolve this legal issue now rather than remand.

[00:12:18] Speaker 02:
If I understood you correctly, what authority can you say that they were required to decide it and didn't even have the option to remand it?

[00:12:25] Speaker 04:
So primarily, Your Honor, the authority is 7261A.

[00:12:28] Speaker 04:
And again, I recognize that it says to the extent necessary.

[00:12:33] Speaker 04:
What was that again?

[00:12:34] Speaker 04:
7261A, which is their scope of review.

[00:12:38] Speaker 04:
And it says, shall decide all questions of law.

[00:12:44] Speaker 04:
Presented and and it well to the extent necessary to its decision and when presented shall decide all relevant questions of law We believe that it is necessary Because again the facts are undisputed the facts are favorable and the resolution of this legal issue

[00:13:03] Speaker 04:
They do, Your Honor, but we, again, we don't, 7252A does say it's a revend as appropriate, but our argument is that it's inappropriate under these unique circumstances.

[00:13:16] Speaker 02:
Finally, on the William Hager Adams exception, what is the clear and final decision of law that, or clear and final decision that the veterans court made in your view?

[00:13:25] Speaker 04:
So we believe that the Veterans Court's legal ruling was that they are unable to review a legal determination de novo without adequate reasons and bases from the Veterans Court.

[00:13:38] Speaker 02:
And where do they say that?

[00:13:39] Speaker 02:
That we're unable, that we must remand, which is what you're saying.

[00:13:45] Speaker 04:
So appendix 8 to 9.

[00:13:49] Speaker 04:
Because the Barrett failed to adequately support his determination, the court finds that remand is warranted.

[00:13:54] Speaker 02:
And why isn't that just an exercise in the discretion that they clearly had under the statute to decide whether to decide the issue or to send it back for further explanation?

[00:14:03] Speaker 04:
Well, I just point you back to my, as I opened up, Your Honor, the facts are undisputed.

[00:14:09] Speaker 04:
The facts are favorable.

[00:14:10] Speaker 04:
The decision will not change from the board.

[00:14:13] Speaker 04:
And in a, well, the decision will not change from the board.

[00:14:21] Speaker 00:
the court should decline to review the Veterans Court's non-final order and dismiss the appeal.

[00:14:28] Speaker 00:
The court has made clear that it will consider a non-final

[00:14:31] Speaker 00:
remand order in very limited circumstances, none of which are presented here.

[00:14:36] Speaker 00:
Mr. Garcia Medina has not satisfied the factors presented in Williams v. Principe.

[00:14:43] Speaker 00:
There is no clear and final decision on a legal issue from the Veterans Court, and the other factors in Williams are not satisfied either.

[00:14:52] Speaker 00:
Mr. Garcia Medina has not highlighted any particular statement from the Veterans Court that is a decision on a rule of law or addressing the validity or interpretation of any statute or regulation.

[00:15:06] Speaker 00:
What the Veterans Court did in remanding to get a more thorough statement of the reasons and bases from the board is certainly something that it is authorized to do and under 38

[00:15:22] Speaker 00:
USC 7252 can do as appropriate.

[00:15:28] Speaker 00:
As in ABLE, the court should determine that it should not review a remand when the Veterans Court had found a statement of reasons and bases to be inadequate.

[00:15:39] Speaker 00:
In that case, there was no legal issue.

[00:15:42] Speaker 00:
Therefore, the court did not have jurisdiction to consider the appeal.

[00:15:47] Speaker 00:
Similarly, in Grantham v. Brown, a remand for a statement of

[00:15:52] Speaker 00:
an adequate statement of reasons or bases dealing with the applicable law and regulation is something that the court declined to review.

[00:16:02] Speaker 00:
Certainly there's no resolution of the legal issue that would adversely affect Mr. Garcia Medina and in addition it's simply a burden that Mr. Garcia Medina has asserted from remand proceedings is not something that

[00:16:20] Speaker 00:
renders the veterans court decision sufficiently final for the court review, as the court noted in Williams.

[00:16:26] Speaker 00:
And the third.

[00:16:27] Speaker 02:
In this case, is the board free to reach a different decision on the remand?

[00:16:31] Speaker 00:
I believe that the board is instructed to provide a more detailed reasons, adequate reasons and bases of its statements about VA policy at the time of the original decision in April, rating decision in April 2003.

[00:16:49] Speaker 00:
and its statements about the change in policy from the policy that applied in April 2003.

[00:16:58] Speaker 00:
And if the court... Can the board... The board's instructed to provide an adequate statement of reasons and bases related to those statements.

[00:17:19] Speaker 00:
I mean, I think they, in making an adequate statement of reasons and bases, it perhaps could explain more thoroughly its decision about the policy.

[00:17:29] Speaker 00:
But I think that that's all that the court is.

[00:17:32] Speaker 02:
So are you agreeing that there's no way that the veteran can win at the board here?

[00:17:39] Speaker 02:
All he can get always going to win is a better explanation of why he loses.

[00:17:43] Speaker 00:
It sounds that the court's review of the board's decision was frustrated.

[00:17:47] Speaker 00:
It failed to adequately support its determination.

[00:17:51] Speaker 00:
So it seems like the board will need to just simply provide an adequate statement for that determination, not change its determination.

[00:18:02] Speaker 00:
But does he stand any chance of winning before the board if the board is simply explaining better

[00:18:10] Speaker 00:
if the bases then sounds like that is a no.

[00:18:14] Speaker 02:
I'm surprised by the answer.

[00:18:16] Speaker 02:
I would have thought that it was implicit when you sent something back for a better explanation that if upon further review the board realizes it doesn't have a better explanation that the outcome would be different.

[00:18:28] Speaker 02:
But you disagree with that.

[00:18:30] Speaker 00:
Well, I think if it's simply providing an adequate statement of reasons and basis for its determination, then... What happens if it goes back and looks into it and realizes it has no basis whatsoever for its argument?

[00:18:44] Speaker 03:
I mean, it does sound like that... Presumably, there's nothing that prohibits the Secretary from changing its mind.

[00:18:52] Speaker 00:
That's not what I see in the Veterans Court decision.

[00:18:55] Speaker 00:
No, that if there were no reasons or bases, I think that's possible.

[00:18:59] Speaker 03:
I mean, if the secretary didn't have a basis for his decision, he can't reach that decision.

[00:19:04] Speaker 00:
Right.

[00:19:04] Speaker 00:
In this case, the discussion.

[00:19:07] Speaker 03:
It sounds like this is a fairly law-abiding policy.

[00:19:10] Speaker 03:
And so there must be some reason it wasn't just described.

[00:19:14] Speaker 03:
So it's not likely to change.

[00:19:15] Speaker 00:
Right.

[00:19:16] Speaker 00:
And I agree that the way that the board described it as being a long-standing policy at the time of April 2003 and then a policy that was put in place in May 2016, it seems that there's background that simply wasn't discussed in depth.

[00:19:35] Speaker 00:
And so that's what I think the Veterans Court is looking for from the board.

[00:19:41] Speaker 00:
If the court did review the

[00:19:44] Speaker 00:
The remand order, it should certainly affirm the Veterans Court's decision because the Veterans Court has the power to remand as appropriate, and it's certainly appropriate to obtain a more detailed explanation, including for legal issues.

[00:20:01] Speaker 02:
Wouldn't it have been within the Veterans Court's authority here to go ahead and decide the legal issue now without a remand?

[00:20:09] Speaker 02:
Did it have that option?

[00:20:10] Speaker 00:
It had that option.

[00:20:12] Speaker 02:
And how do we know that it recognized it had that option?

[00:20:18] Speaker 00:
Well, I think it's simply by...

[00:20:25] Speaker 02:
As I understand it, your friend is arguing that they thought they were compelled by law to remand here, and that that's the legal decision that was made.

[00:20:37] Speaker 02:
I assume you disagree with that.

[00:20:38] Speaker 00:
I disagree.

[00:20:41] Speaker 00:
Certainly, the only discussion, which is on pages 8 and 9 of the appendix, is that the court concludes that the board provided inadequate reasons or bases for its decision.

[00:20:50] Speaker 00:
And there's no discussion by the Veterans Court about its own authority.

[00:20:54] Speaker 00:
to remand or its own any decision on a legal issue at all.

[00:21:01] Speaker 00:
I wanted to note that the George V. of McDonough Supreme Court decision is in line with what the Veterans Court has done here.

[00:21:15] Speaker 00:
The idea that there is a queue

[00:21:22] Speaker 00:
does not encompass a subsequent change in law or change in interpretation of law makes it certainly necessary to determine questions of changes in interpretation of law.

[00:21:35] Speaker 00:
And we believe that Mr. Garcia Medina has not satisfied the Williams factors for the court to review the non-final decision of the Veterans Court.

[00:21:52] Speaker 00:
the court has no further questions.

[00:21:56] Speaker 00:
We request that the court decline to review the Veterans Court's non-final order and dismiss the appeal or otherwise affirm.

[00:22:03] Speaker 03:
Thank you.

[00:22:12] Speaker 04:
Thank you, Your Honor.

[00:22:13] Speaker 04:
So I want to begin where the questioning with the government was about the remand order itself, and just urge his court.

[00:22:21] Speaker 03:
Can you address Judge Frost's question?

[00:22:24] Speaker 03:
Is your argument that the Veterans Court didn't think you could decide that it wasn't allowed to decide the issue, or just wanted to send it back?

[00:22:33] Speaker 03:
I thought your argument wasn't that

[00:22:38] Speaker 03:
Yes, your honor and in second it is the second one that they have to decide

[00:22:59] Speaker 03:
Yes, Your Honor.

[00:23:00] Speaker 03:
It just chose not to.

[00:23:01] Speaker 03:
Absolutely, Your Honor.

[00:23:02] Speaker 03:
And you're saying it couldn't choose not to.

[00:23:04] Speaker 04:
Absolutely, Your Honor.

[00:23:04] Speaker 04:
That's our position.

[00:23:05] Speaker 04:
And if we look at Appendix 9, the big full period, given this position, the court will not now address the remaining arguments of issues raised by appellate.

[00:23:13] Speaker 04:
And so it recognizes it could have, and it just chose not to because, again, on de novo review, it assessed that it needed more explanation.

[00:23:23] Speaker 04:
And again, we strongly urge this court to read the remand order

[00:23:27] Speaker 04:
at face value, that all the court is asking or ordering from the board is to better explain its decision.

[00:23:34] Speaker 04:
And through.

[00:23:35] Speaker 01:
What about the last two sentences of the court order?

[00:23:38] Speaker 01:
I mean, it says on remand, the felon is free to submit additional argument, including the specific arguments raised here.

[00:23:45] Speaker 01:
And the board must consider that.

[00:23:47] Speaker 01:
It also says the remand is meant to entail critical examination of the justification for the decision, and the board must proceed expeditiously.

[00:23:56] Speaker 01:
It's pretty beneficial to be here.

[00:23:59] Speaker 01:
At least it's trying, right?

[00:24:00] Speaker 04:
Typically, it is, Your Honor.

[00:24:01] Speaker 04:
But again, this is a cube issue.

[00:24:03] Speaker 04:
And in a clear and unmistakable error context, the board only has jurisdiction over the specific allegation of Q raised, adjudicated by the AOJ, and appealed to the board.

[00:24:14] Speaker 04:
So the argument itself, the underlying argument, does not change.

[00:24:17] Speaker 04:
Was there a change in law such that the 20% rating for shoulder limitation of motion should have been applied in 2003?

[00:24:24] Speaker 04:
That's the only argument the board has

[00:24:27] Speaker 04:
the jurisdiction to review.

[00:24:29] Speaker 01:
If we present a different argument, then they would have to remand that for an AOJ determination.

[00:24:43] Speaker 04:
Um, yes, your honor, but again, I, I don't, we don't, we don't understand this to offer, to provide anything of substance to Mr. Garcia Medina because all that's telling the board to do is to better explain its denial.

[00:24:56] Speaker 04:
He's going to get another denial.

[00:24:57] Speaker 04:
The VA is getting steadfast in its position that there is some longstanding policy that to date in dozens of cases so far, both at the Veterans Court and in the board, they have not been able to produce a single shred of evidence to support this.

[00:25:13] Speaker 02:
Could I just ask you, following up on Judge Deese, you wrote at page one of the Blueberry, this court, us, has jurisdiction over the appeal because you're challenging the Veterans Court's legal ruling that it may not interpret the law unless or until the board provides an explanation for its legal ruling.

[00:25:33] Speaker 02:
Is that, in fact, your position?

[00:25:35] Speaker 02:
And if so, where did the Veterans Court rule that it may not interpret the law until the board provides an explanation?

[00:25:42] Speaker 04:
That is, Your Honor, and it's a bit of hyperbole.

[00:25:48] Speaker 04:
But again, I think that when we go back to appendix eight to nine, that they are unable to, that the board failed to offer.

[00:25:55] Speaker 02:
If we don't find the court of veterans claims making that legal determination at pages eight and nine, would you acknowledge that?

[00:26:03] Speaker 02:
You don't meet the Williams test.

[00:26:08] Speaker 04:
Well, I know, Your Honor, because I think when you look at the more fleshed out argument in our blue brief, we are essentially assessing that he's entitled to a ruling today on the issue as it was presented to the Veterans Court without having to wait for another denial from the board with just a better explanation.