[00:00:00] Speaker 04:
Before we get started, I just want to express our appreciation for District Court Judge Chun coming to help us with our docket and join us here at the Federal Circuit to hear these cases.

[00:00:12] Speaker 04:
We're really grateful that you're here.

[00:00:15] Speaker 04:
Okay, now our first case for argument is 24-1343, Christopher Lee versus Collins.

[00:00:22] Speaker 04:
Mr. DeHawkes?

[00:00:24] Speaker 00:
Thanks, Your Honor.

[00:00:26] Speaker 00:
May it please the court?

[00:00:28] Speaker 00:
On behalf of Mr. Chris Folley, I want to thank this court for the opportunity to present his appeal.

[00:00:33] Speaker 00:
Mr. Chris Folley is a prevailing party because the Veterans Court remanded his claim for a hearing loss so that the board can consider record evidence that he argued suggested his tinnitus was a component of that hearing loss.

[00:00:48] Speaker 00:
As explained in the opening brief, Kelly B. Nicholson controls.

[00:00:53] Speaker 00:
In Kelly, the Veterans Court remanded because it found

[00:00:56] Speaker 00:
that his claim was never limited to a single diagnosis, and permitted the appellant on remand to ask the board to address a different diagnosis.

[00:01:04] Speaker 04:
But one difference here is the Veterans Court indicated that it was uncertain as to whether all of his claims were addressed, and that he might have, is it tonight?

[00:01:17] Speaker 04:
How do you say that?

[00:01:18] Speaker 00:
I think both are permissible, Your Honor.

[00:01:20] Speaker 00:
I say tinnitus.

[00:01:21] Speaker 04:
OK, I'm going tinnitus.

[00:01:25] Speaker 04:
In any event, they weren't sure if it's possible he had implicitly raised a claim for tinnitus.

[00:01:31] Speaker 04:
And so they sent it back.

[00:01:32] Speaker 04:
So how is it error?

[00:01:33] Speaker 04:
Because the lower court could have concluded that no, the board could have concluded that no, he did not do an adequate job of alerting us to the possible claim for tinnitus, in which case the remand wouldn't have been a proper thing to do, right?

[00:01:48] Speaker 00:
Right, Charlotte.

[00:01:49] Speaker 00:
So the reason why this is error is because the

[00:01:55] Speaker 00:
The foundation of the argument was that this evidence was before the board.

[00:02:00] Speaker 00:
And keep in mind that the board remanded specifically for this examination

[00:02:04] Speaker 00:
The examination disclosed the tinnitus.

[00:02:06] Speaker 00:
And then the board didn't comment on the tinnitus.

[00:02:09] Speaker 00:
And so the foundation of the error is that the record evidence suggested this connection.

[00:02:15] Speaker 00:
And whether it's reasonably raised or not is kind of a secondary issue.

[00:02:21] Speaker 00:
But the error, as in Kelly v. Nicholson, was that the board was required to review all of the record evidence.

[00:02:27] Speaker 04:
I thought in Kelly there was a change in law.

[00:02:29] Speaker 04:
Was there a change in law in Kelly?

[00:02:32] Speaker 04:
And that change in law was what necessitated the remand.

[00:02:35] Speaker 04:
So that seems like a very different case.

[00:02:38] Speaker 00:
Not exactly, Your Honor.

[00:02:39] Speaker 00:
There was a change in law, but the ruling of the court says,

[00:02:45] Speaker 00:
They talked about the VCA change, but the ultimate conclusion of this court was that the VA was obligated to consider all evidence of record before deciding whether his claim was well-grounded.

[00:02:57] Speaker 00:
And that formed the basis of the remand order, or at least that's what this court determined formed the basis of the remand order and not the change in law.

[00:03:05] Speaker 00:
And so they found that the remand was predicated upon the board's failure to review all of the evidence, which is essentially what happened here.

[00:03:13] Speaker 04:
But the CAVC wasn't sure that they had failed to review all of the evidence because they indicated expressly in their decision they were not finding this as an error and they were not deciding

[00:03:25] Speaker 04:
that he had raised it, they wanted to send it back to the board to think about.

[00:03:27] Speaker 04:
So what if the board said he had not properly raised it, that there was not sufficient information in the file to conclude that there was a separate claim for tinnitus?

[00:03:39] Speaker 04:
What if that had been the result?

[00:03:40] Speaker 04:
Would you still be arguing that the CAVC's decision to remand for that consideration was a victory for your client under those circumstances?

[00:03:50] Speaker 00:
Your honor, are you asking before this appeal or after the remand if the board found it was not reasonably raised?

[00:03:57] Speaker 04:
I am saying we have a CAVC decision that sends it back for consideration of whether something was reasonably raised.

[00:04:07] Speaker 04:
You're saying we should get attorney's fees for that, for that CAVC decision.

[00:04:12] Speaker 04:
Now if

[00:04:13] Speaker 04:
when they sent it back, with the exact same language of this decision, if the board had concluded that tonight's claim was not reasonably raised, do you still think you should get attorney's fees for the CAVC decision that sent it back?

[00:04:30] Speaker 04:
for that consideration.

[00:04:31] Speaker 00:
Absolutely, Your Honor, because the precedent establishes that it's prevailing party at the court.

[00:04:37] Speaker 00:
And what happens after remand is irrelevant.

[00:04:40] Speaker 00:
Whether they win or lose on remand is irrelevant.

[00:04:42] Speaker 00:
The prevailing party determination is looking at what happened at the court and not what happened after the remand.

[00:04:50] Speaker 04:
Well, that's very troubling to me, because there are times when we get cases where we find the opinion from the lower tribunal to be

[00:05:00] Speaker 04:
less than fully complete such that we're a little nervous and we can't make fact findings in the first instance and so we send those kinds of things back for further information.

[00:05:10] Speaker 04:
Are you saying that's a victory for which EJA fees would be awarded because we need more information from the decision maker than what they provided in the decision?

[00:05:20] Speaker 00:
So I think the distinguishing

[00:05:22] Speaker 00:
The distinguishing aspect of those, Your Honor, is the law distinguishes between a case where, like here, where the Veterans Court does not retain jurisdiction and one where the court does retain jurisdiction.

[00:05:36] Speaker 00:
And so in your example where this court were to send something back, I'm assuming it means that it comes back to this court and then you apply those laws.

[00:05:45] Speaker 02:
Then because this court would- Not necessarily.

[00:05:48] Speaker 02:
It's a relatively rare thing that we remand but retain jurisdiction.

[00:05:52] Speaker 00:
Right, Your Honor, but the case law does distinguish between the situation where the court retains jurisdiction and then the veteran loses at the agency.

[00:06:01] Speaker 00:
In that case, there is no prevailing party because at the veteran's, it comes back to the veteran's court and so the veteran would then

[00:06:10] Speaker 00:
lose on the merits.

[00:06:12] Speaker 00:
But where the action at the court is done, they do not retain jurisdiction, it goes back to the agency, then that's when we stop looking at what happened and determining whether there was a prevailing party or not.

[00:06:26] Speaker 02:
So does your point about the irrelevance of what happens after the remand mean that even though your client has now prevailed,

[00:06:37] Speaker 02:
on getting some of the benefits that you cannot now get the fees for the appeal that resulted in the, was it February, 2023 Veterans Court ruling?

[00:06:53] Speaker 02:
That that's history and you can't get those now simply because you actually have prevailed on the tinnitus claim.

[00:07:03] Speaker 00:
If I understand your question, Your Honor, correct.

[00:07:05] Speaker 00:
The outcome at the board after the remand has no bearing on whether each of these are available in his appeal at the Veterans Court.

[00:07:16] Speaker 00:
So the law looks only at what was the order of the Veterans Court.

[00:07:21] Speaker 02:
Right, so I think you're going to give the same answer.

[00:07:25] Speaker 02:
I just want to clear.

[00:07:26] Speaker 02:
So you've gotten an award of benefits at VA.

[00:07:31] Speaker 02:
Suppose you think, well, it was 10%.

[00:07:34] Speaker 02:
It should have been 20%.

[00:07:35] Speaker 02:
And then you bring it up.

[00:07:37] Speaker 02:
And you end up back in the Veterans Court.

[00:07:40] Speaker 02:
And you get your 20%.

[00:07:45] Speaker 02:
Do you get fees?

[00:07:47] Speaker 02:
And let's again suppose, are you a prevailing party at that point for purposes of what I'm going to call, in my hypothetical, the second visit to the Veterans Court only?

[00:07:59] Speaker 02:
Or can you look back and get to be called a prevailing party in

[00:08:08] Speaker 02:
the first Veterans Court appearance, because that was actually a necessary step in your getting to where you are with a true prevailing.

[00:08:17] Speaker 00:
I think I understand your question, Honor.

[00:08:19] Speaker 00:
And in my review of the case law, I'm not aware of that specific fact occurring.

[00:08:25] Speaker 00:
I think that the way that the law is written, the statute's written, and the way that the case law treats it is that we look at each proceeding

[00:08:34] Speaker 00:
independent of anything else that has happened.

[00:08:37] Speaker 00:
Obviously, if there's additional appeals to higher courts, that would play a role.

[00:08:42] Speaker 00:
But in your question, Your Honor, the second appeal would entitle the veteran to Egypt fees for the work performed in that appeal only.

[00:08:53] Speaker 00:
assuming of course it's a prevailing party and in your scenario there was an award of additional benefits.

[00:08:59] Speaker 00:
But that second proceeding would not have any bearing on this proceeding.

[00:09:03] Speaker 02:
This proceeding looks only at... So getting back then to the discussion of this proceeding, does your argument depend on our essentially looking behind what the Veterans Court said it was doing

[00:09:19] Speaker 02:
and concluding it was really doing more than it said.

[00:09:24] Speaker 00:
It does, Your Honor.

[00:09:24] Speaker 00:
And that's what the case law supports, is that this court reviews prevailing party de novo, and it looks essentially at what was the predicate of the error, notwithstanding what the Veterans Court said it was.

[00:09:37] Speaker 00:
And particularly in Kelly, they said it was not.

[00:09:39] Speaker 00:
And this court found that it was a prevailing party.

[00:09:42] Speaker 03:
I'm glad you turned to the issue of the legal standard.

[00:09:47] Speaker 03:
Kind of the general question is whether

[00:09:49] Speaker 03:
the Veterans Court applied the correct legal standard.

[00:09:52] Speaker 03:
And on that issue, I noticed that your briefing doesn't discuss Winters or the Robinson versus O'Rourke cases.

[00:10:01] Speaker 03:
And a question I had for you is, do you agree that those cases apply here?

[00:10:08] Speaker 00:
We do not, Your Honor.

[00:10:08] Speaker 00:
Those two cases are distinguishable, and I'll explain here.

[00:10:13] Speaker 00:
So I'll start with the easy one, I think.

[00:10:19] Speaker 00:
Winters said that there was no prevailing party because there was no error at all.

[00:10:28] Speaker 00:
This court said that there was, quoting here, Winters has not identified a timing or other requirement that the VA allegedly violated.

[00:10:36] Speaker 00:
by not having provided notice under Ratliff prior to the Veterans Court.

[00:10:42] Speaker 00:
So there was nothing for the board to have done.

[00:10:45] Speaker 00:
That remand order was specifically because there was a prior proceeding that was still pending that would have affected the second proceeding, and so they sent that one back.

[00:10:54] Speaker 03:
But did those cases at least articulate the correct legal standard to apply?

[00:10:59] Speaker 00:
They did, Your Honor.

[00:11:00] Speaker 00:
So yes, they do articulate the correct legal standard.

[00:11:02] Speaker 00:
But I think to the extent that those cases describe the legal standard, then yes, that legal standard would apply.

[00:11:11] Speaker 00:
But they were simply just announcing what was already settled law on the issue.

[00:11:16] Speaker 00:
And didn't the Veterans Court report to apply winters?

[00:11:20] Speaker 00:
They cited two winters in support.

[00:11:24] Speaker 00:
But the way I read the Veterans Court decision is they leaned heavily on blue.

[00:11:28] Speaker 00:
V. Wilkie, which is their own precedent.

[00:11:31] Speaker 00:
And then they cited to some of the precedent from this court as additional authority.

[00:11:38] Speaker 00:
But really, they seem to have leaned most heavily on Blue V. Wilkie, as I understood their decision.

[00:11:46] Speaker 00:
And in Robinson, I will admit Robinson was a little tricky for me.

[00:11:51] Speaker 00:
But as far as I can read it, Robinson is distinguished, will be, because the appellant in that case raised a legal issue that was not presented to the board.

[00:12:01] Speaker 00:
And this court said that it was not legal error for the board not to have considered a legal argument never made.

[00:12:09] Speaker 00:
And quoting, in other words, the remand required the board to consider a legal argument that it could not have considered through no fault of its own.

[00:12:19] Speaker 00:
But this case, like Kelly, is to consider evidence that was before the board that the board actually asked for, ordered development of, and was silent on the tinnitus diagnosis.

[00:12:32] Speaker 00:
And just like in Kelly, where there was additional medical evidence which showed a different diagnosis,

[00:12:38] Speaker 00:
The error was in failing to review the entire record under 5107.

[00:12:45] Speaker 02:
Is the following a fair characterization of the distinction you just made that it is not enough if the Veterans Court remands where it is clear that there was no error?

[00:13:06] Speaker 02:
covering, in your view, I think, both of the two cases you just talked about, and that your position may be as long as the remand was to figure out whether there was an error, you're still a prevailing party, even though the Veterans Court has not in itself determined that there was an error.

[00:13:35] Speaker 02:
as long as there was a possibility that the board committed error before coming to the veterans court.

[00:13:42] Speaker 00:
I would add to that, Your Honor, the requirement that Kelly, and really that I think Davis recognizes, that this has to be prompted in some way upon the argument by the veteran.

[00:13:56] Speaker 00:
So if the veteran never mentions it and the veteran's court's to respond to it

[00:14:01] Speaker 00:
as in winters.

[00:14:03] Speaker 02:
Right, but we have that, right?

[00:14:05] Speaker 02:
I mean, mentioned it in the Veterans Court or in the board?

[00:14:10] Speaker 00:
The veteran, the appellant, has to have presented this argument to the court in

[00:14:16] Speaker 00:
And as I read the case law, the error is predicated upon the argument, which shows that the board in some way made an error.

[00:14:25] Speaker 00:
And that's what Kelly says, and that's what happened here.

[00:14:28] Speaker 00:
The appellant argued that the evidence showing tinnitus was not considered, whether or not it establishes a reasonably raised claim or entitlement.

[00:14:37] Speaker 02:
But do you think that this standard I was just articulating is actually the standard in our cases or would require an alteration of what we said?

[00:14:47] Speaker 02:
Because I thought our cases say a remand in order to qualify the veteran as a prevailing party must, in fact, be predicated on the Veterans Court's own determination, explicit or implicit, that there was an error, not

[00:15:05] Speaker 02:
There may be an error.

[00:15:07] Speaker 02:
We're going to send it back from the board to tell us that.

[00:15:10] Speaker 00:
I think, Your Honor, the best way I can answer that question is to say that it really does depend on what was argued.

[00:15:18] Speaker 00:
and what was the obligations of the board in relation to that argument.

[00:15:24] Speaker 00:
And so to determine whether there is an error or not by itself, I would agree is normally not sufficient.

[00:15:32] Speaker 00:
But when the veteran or the appellant raises an issue and the remand order follows up on that as it did here, then it would be prevailing party.

[00:15:41] Speaker 04:
Thank you.

[00:15:42] Speaker 04:
Thank you, Your Honor.

[00:15:43] Speaker 04:
I'll restore some of your rebuttal time.

[00:15:45] Speaker 04:
Let's hear from Ms.

[00:15:47] Speaker 04:
Baldwin.

[00:15:49] Speaker 01:
How do I say your last name?

[00:15:50] Speaker 01:
Did I say that right?

[00:15:50] Speaker 01:
Auburn?

[00:15:51] Speaker 01:
Auburn, yes.

[00:15:51] Speaker 01:
Auburn.

[00:15:52] Speaker 01:
Thank you, Your Honor.

[00:15:55] Speaker 01:
Good morning.

[00:15:55] Speaker 01:
May I please support?

[00:15:57] Speaker 01:
The Veterans Court correctly determined that Mr. Chris Fooley was not a prevailing party within the meaning of the Aegis statute, precisely because the remand wasn't predicated on administrative error.

[00:16:06] Speaker 01:
And the Veterans Court reached this determination, as Your Honors have just discussed, by following this court's well-established standard on that point.

[00:16:14] Speaker 01:
Although Mr. Chris Fooley is framing his appeal as a legal question,

[00:16:19] Speaker 01:
So as an initial matter, I think it's important to discuss the fact that this court doesn't have jurisdiction to review what's really being discussed, which is an application of the IJA statute to the facts.

[00:16:28] Speaker 01:
No alternative standard has been put forward, and I don't think that the standard is really in question.

[00:16:33] Speaker 02:
What was the case that your colleague on the other side you mentioned where I think he said The Veterans Court said we weren't doing X, but this court said oh, yes, you were I believe that was the Kelly case Okay, so yeah, was that also an application question?

[00:16:50] Speaker 01:
We have decided the Kelly case discussed so there in the Kelly case as my colleague discussed

[00:16:59] Speaker 01:
the extent to which the board decision had disregarded evidence on the record of a second diagnosis to support the veterans claim in that case.

[00:17:09] Speaker 01:
And even though the Veterans Court explained that its remand had not been predicated on error, this court found that because there was error in the record that it was in fact, or rather there was evidence on the record, that that was an implicit error and remanded for reconsideration in light of that decision.

[00:17:25] Speaker 01:
It's the secretary's position that that is not the case here because this question of tinnitus is not clear from the record in the way that Mr. Chris Foley has argued both here today and in the brief.

[00:17:41] Speaker 01:
And the standard is clear that we obviously first start by looking at what the Veterans Court characterized its remand as.

[00:17:49] Speaker 01:
And here it was not predicated on error.

[00:17:51] Speaker 01:
But the secondary question, of course, is whether it's implied.

[00:17:54] Speaker 04:
But I guess I don't understand how it's not implied despite their discounting of

[00:18:00] Speaker 04:
the fact that they were finding administrative error.

[00:18:03] Speaker 04:
If you send it back and say, hey, it looks like there might be an unadjudicated claim here, how is that not an implicit finding of error, especially when it turns out later the board agrees, yes, there was an unadjudicated claim?

[00:18:17] Speaker 01:
Yes.

[00:18:17] Speaker 01:
So how is that not error?

[00:18:19] Speaker 01:
It's not error because.

[00:18:20] Speaker 01:
I mean, it is error.

[00:18:22] Speaker 01:
So I suppose it is.

[00:18:23] Speaker 04:
Actually, technically, it's an error.

[00:18:25] Speaker 04:
Like, technically, there was an error.

[00:18:26] Speaker 04:
The board admitted an error.

[00:18:28] Speaker 04:
because they found that they had an unadjudicated claim.

[00:18:31] Speaker 04:
There was implicitly raised claim in the medical examiner's identification of tinnitus, which the board had in front of it.

[00:18:38] Speaker 04:
And we all know that the veteran doesn't have to raise a claim for it to be implicitly raised.

[00:18:43] Speaker 04:
It suffices if the medical records that the VA has demonstrates

[00:18:48] Speaker 04:
a disability, right?

[00:18:49] Speaker 01:
Absolutely, Your Honor.

[00:18:50] Speaker 01:
And I think the question here is really whether that was resolved at the point that the Veterans Court was considering the arguments made by Mr. Christopher Foley on his appeal from the board determination.

[00:19:00] Speaker 01:
And the Veterans Court had a question about whether it had been properly raised.

[00:19:04] Speaker 01:
So this is merely for the purposes of IJA fees, whether he's a prevailing party or not.

[00:19:09] Speaker 01:
It doesn't speak to whether, ultimately, a tinnitus claim had properly been raised.

[00:19:13] Speaker 01:
The point that we are in this sort of timeline, that question had not yet been answered.

[00:19:18] Speaker 01:
And there's veterans' court case law that makes clear that simply raising the claim for hearing loss

[00:19:25] Speaker 01:
doesn't, as a matter of law, bring tinnitus into the picture?

[00:19:28] Speaker 04:
Well, no, but the medical records expressly said tinnitus.

[00:19:31] Speaker 04:
The medical examination record that the board actually ordered, the VA writing officer ordered that there should be this medical exam, that record says tinnitus on its face, right?

[00:19:43] Speaker 01:
It mentions tinnitus.

[00:19:45] Speaker 01:
So then the question is whether that amounts to a claim for tinnitus when it's a distinct disability from hearing loss.

[00:19:51] Speaker 04:
I'm confused.

[00:19:53] Speaker 04:
I thought that a claim is implicitly made anytime the medical record evidence gives reason to demonstrate that the veteran has a potential disability.

[00:20:06] Speaker 04:
Am I misunderstanding the nature of the implicit claim case law?

[00:20:13] Speaker 01:
I'll say no, but I think more importantly, in this context, what matters is when the Veterans Court was reviewing the appeal from the board, whether the Veterans Court had enough information to say, OK, a claim for tonightus has been raised or not.

[00:20:30] Speaker 01:
Because it decided that it hadn't, it was appropriate to rename it.

[00:20:34] Speaker 04:
What basis could there be, given this set of facts, for the failure to identify that tonightus claim?

[00:20:41] Speaker 04:
what good faith basis like you're saying the Veterans Corp was uncertain.

[00:20:46] Speaker 04:
And that was the way they wrote the opinion.

[00:20:49] Speaker 04:
But I'm saying how could they be uncertain?

[00:20:51] Speaker 04:
The facts of these cases are overt.

[00:20:53] Speaker 04:
There are times, by the way, when I get cases

[00:20:57] Speaker 04:
and somebody wants me to make a fact finding that seems indisputably correct.

[00:21:02] Speaker 04:
But I really think the lower tribunal should make it in the first instance.

[00:21:06] Speaker 04:
So even though I'm completely convinced an error has been made and a fact finding should be rendered in this favor, I nonetheless send it back and let the lower tribunal do it in the first instance.

[00:21:16] Speaker 04:
But I'm, in those cases, often completely 100% convinced an error has been made.

[00:21:22] Speaker 04:
So just saying, well,

[00:21:23] Speaker 04:
I'm not going to conclude an error has been made here, but hey, go take a look at this.

[00:21:27] Speaker 04:
It feels like something I'm kind of familiar with.

[00:21:29] Speaker 04:
And that usually means I think an error has been made, right, even though I am not calling it an error on its face.

[00:21:35] Speaker 04:
So why wouldn't that suffice?

[00:21:37] Speaker 01:
So I guess I would say that if Mr. Christoforoli viewed that as an error, the board's decision to remand as an error, then the proper remedy would have been to appeal that remand decision.

[00:21:49] Speaker 01:
Here we're sort of beyond that.

[00:21:51] Speaker 04:
I don't understand.

[00:21:52] Speaker 04:
We're talking about whether the CAVC recognized an error in the board's failure to address the tinnitus claim, correct?

[00:22:02] Speaker 04:
Yes, absolutely.

[00:22:03] Speaker 04:
And so the CAVC, I'm saying to you, what do you tell me on the facts of this case?

[00:22:11] Speaker 04:
what reasonable basis the CAVC could have for being confused about whether a tinnitus claim had been raised, given that it is expressly referenced in the medical records.

[00:22:22] Speaker 04:
And we both agree that that reasonably raises a claim.

[00:22:25] Speaker 01:
Absolutely.

[00:22:26] Speaker 01:
So the initial claim was for hearing loss.

[00:22:29] Speaker 01:
And that was what Mr. Christofoli appealed.

[00:22:31] Speaker 01:
That process began in 2015.

[00:22:32] Speaker 01:
I think at that time, he even expressly disclaimed having tinnitus.

[00:22:36] Speaker 01:
It wasn't until 2020 on remand

[00:22:40] Speaker 01:
with a request for further medical records that tinnitus first surfaced.

[00:22:44] Speaker 01:
And it was as a diagnosis in his file.

[00:22:47] Speaker 01:
The government doesn't dispute that.

[00:22:49] Speaker 01:
But it didn't rise to the level of making a new claim for tinnitus.

[00:22:54] Speaker 01:
And so it's not error.

[00:22:55] Speaker 01:
Who says it didn't rise to the level?

[00:22:56] Speaker 04:
I mean, the board has concluded it did, right?

[00:22:59] Speaker 01:
The board has concluded it did rise to the level.

[00:23:01] Speaker 01:
It has since concluded it did.

[00:23:02] Speaker 01:
And that later conclusion on the remand that we've been discussing

[00:23:07] Speaker 04:
doesn't doesn't weigh into what this court is required to consider for purposes of a prevailing party assessment under under the Aegis statute and I guess that's why vacation why what case law do you have that tells me I absolutely can't consider the fact that the Veterans Court said there might be an error here so I'm gonna send it back and the board said oh yeah there's an error here in what universe can I not consider the board agreeing to

[00:23:33] Speaker 04:
that not just might there have been an error, there actually was an error in deciding whether the first decision amounted to recognition of an error.

[00:23:40] Speaker 01:
I think that's the Motorola case, which separates Egypt case analyses when the remanding court retains jurisdiction versus when it doesn't.

[00:23:51] Speaker 01:
So had the Veterans Court retained jurisdiction rather than remanding and vacating the board's decision, then that later success on the merits would have factored into

[00:24:00] Speaker 01:
the Veterans Court's assessment of whether there was a prevailing party binding.

[00:24:04] Speaker 01:
Why does the Veterans Court have to retain jurisdiction?

[00:24:08] Speaker 01:
Only because that's the way.

[00:24:09] Speaker 01:
My understanding is that's the way that the Motorola Court determined a different way of assessing these cases, depending on whether jurisdiction is retained or not.

[00:24:20] Speaker 01:
So in the absence of retaining that jurisdiction, the universe sort of closes at the remand.

[00:24:27] Speaker 04:
This 2003 Motorola case, show me where in it

[00:24:30] Speaker 04:
you think it indicates that the board had to have retained jurisdiction for there to be the possibility of treating the earlier material as resulting in clarity on the later CAVC decision.

[00:24:49] Speaker 04:
I see that they mentioned there was a retention of jurisdiction during remand.

[00:24:53] Speaker 04:
But what I don't see is something that indicates that only if there's a retention of jurisdiction during remand will this apply.

[00:25:02] Speaker 01:
And that may be in that case, Your Honor.

[00:25:06] Speaker 01:
I can't call up in this moment something that says that that's precisely how it's been that case resolved this question.

[00:25:14] Speaker 01:
But I do think that subsequently, this circuit has made clear that absent a retention of jurisdiction, all that matters is that each applicant prevail on their civil claim.

[00:25:25] Speaker 01:
Where do we make that clear?

[00:25:28] Speaker 01:
you said subsequent to Motorola we've made this circuit has made it clear that's what you just said so I dare you make that clear I believe that that question came up in the Robinson case for example in 2018 and I'll apologize preemptively for not having a pin site for that precise

[00:25:45] Speaker 01:
Not precise notion, but I'm confident that it's reflected there.

[00:25:49] Speaker 02:
Can I just get you back to, let's put aside what the board said in late 2023 when it got the case back.

[00:25:58] Speaker 00:
Yes.

[00:25:59] Speaker 02:
And just thinking about what was in front of the Veterans Court leading up to the February 2023 decision.

[00:26:08] Speaker 02:
Do you agree that there is a category of case

[00:26:14] Speaker 02:
Maybe Kelly is one where we can look at what the Veterans Court said and say implicitly there was a determination of error even though it was kind of disclaimed.

[00:26:38] Speaker 01:
I agree that you can, Your Honor.

[00:26:40] Speaker 01:
And I think I agree with Mr. Chris Foley's counsel in this regard in that what matters is some combination of what the appellant was arguing and what the board, the extent to which the Veterans Court adopted that argument.

[00:26:55] Speaker 01:
And I think the Kelly case is a good example, as is this court's case in Luval, which we filed a 28-J letter on a couple weeks ago, where some combination of the merits argument that the appellant was making

[00:27:08] Speaker 01:
and the Veterans Court's adoption or sort of concern about that prompted the remand.

[00:27:15] Speaker 01:
And that needn't be precisely explicit, but I think in this case, neither Mr. Christopher's argument nor the secretary's argument was adopted.

[00:27:23] Speaker 01:
The Veterans Court very clearly said, you know, we don't know.

[00:27:26] Speaker 01:
There is this question, this fact question of whether tinnitus was reasonably raised by the record.

[00:27:31] Speaker 01:
And rather than improperly undertaking that fact-finding exercise ourself, we're going to send it back down to the board

[00:27:36] Speaker 01:
who then later concluded that it had been reasonably right.

[00:27:39] Speaker 02:
So is it relevant to us, I mean, for us to ask what exactly was the uncertainty at the time?

[00:27:50] Speaker 02:
under the implicit claim standard about whether a tinnitus claim was implicitly raised to the board by the medical records.

[00:28:00] Speaker 02:
And if we don't see how that could fail to be true, why should we not conclude that, of course,

[00:28:11] Speaker 02:
it was sufficiently raised in the medical record for the board to have to adjudicate it.

[00:28:20] Speaker 02:
And so there's just no real world gap between, there's nothing left to be uncertain about.

[00:28:28] Speaker 02:
Again, putting aside what the board later said.

[00:28:31] Speaker 01:
So if I'm understanding your honor's question correctly, it's whether this court has an obligation to ask, perhaps, could you reiterate your question that way?

[00:28:41] Speaker 01:
Answering more precisely.

[00:28:42] Speaker 01:
Right.

[00:28:42] Speaker 02:
So you have a discussion with the chief about how could it conceivably not be true that this medical record raised this claim under the implicit claim doctrine.

[00:28:53] Speaker 02:
And I want you to, I guess, answer that question, putting aside the fact that the board later concluded that, of course, it did.

[00:29:01] Speaker 02:
So what is the possible argument against the conclusion that that medical record raised this claim?

[00:29:10] Speaker 01:
I think it's appropriate for the Veterans Court to ask the question of whether there was some error, even if it was not explicitly articulated in the Veterans Court's earlier decision to remand.

[00:29:21] Speaker 01:
And that is what the Veterans Court did here in its February 2023 decision.

[00:29:26] Speaker 01:
I think it said something to the effect of

[00:29:30] Speaker 01:
Right, the board silence, this is on appendix page four, the board silence as to the tinnitus issue was not clear error and certainly not glaring error, as Mr. Christofouli asserts.

[00:29:39] Speaker 02:
Right, but just getting down to the as applied, why was it not glaring error?

[00:29:47] Speaker 01:
Right, so two parts to that answer.

[00:29:49] Speaker 01:
The first is that, and I think this is referenced, yes, in the Blue versus Wilkie case and a couple of others, that

[00:29:55] Speaker 01:
Raising the claim for hearing loss as a matter of law does not have the effect of raising a claim for tinnitus.

[00:30:00] Speaker 04:
Yes, but that's we already discussed that's not true when tinnitus is expressly identified in the medical record.

[00:30:07] Speaker 01:
So as a step so then if a claim I guess the distinction I would make is whether a claim for tinnitus has been properly raised by the record and here it's not unreasonable for the board to have concluded it wasn't given that it was.

[00:30:20] Speaker 01:
Why?

[00:30:20] Speaker 01:
Given that this next part is the part I care about.

[00:30:22] Speaker 01:
Everything you said before that is just talk.

[00:30:25] Speaker 01:
Why?

[00:30:25] Speaker 01:
Given that there was nearly a diagnosis for tinnitus well after that initial claim had been made, the notice of disagreement didn't address, didn't claim that tinnitus had not been properly adjudicated.

[00:30:39] Speaker 01:
It wasn't until the appeal.

[00:30:42] Speaker 04:
Wait, wait.

[00:30:42] Speaker 04:
But this is the problem for me.

[00:30:43] Speaker 04:
Because now you're saying that the standard isn't whether it's reasonably raised by the record.

[00:30:48] Speaker 04:
The standard is,

[00:30:50] Speaker 04:
We shouldn't conclude it's reasonably raised by the record if the notice of disagreement doesn't point out that it wasn't adjudicated.

[00:30:55] Speaker 04:
That's not the standard.

[00:30:57] Speaker 04:
The standard for an implicit claim is if it's reasonably raised by the record.

[00:31:01] Speaker 04:
So you've got to give me a reason it's not reasonably raised by the record, because the notice of agreement or failure to identify it there doesn't cause waiver of an implicitly raised claim.

[00:31:10] Speaker 02:
Agreed.

[00:31:13] Speaker 02:
I mean, is it something like you can note that there's tinnitus, but it's entirely possible the veteran could say, yeah, I get the ringing in my ear, but it's really not a problem for me, so I can't claim a disability about it?

[00:31:27] Speaker 01:
Yes, Your Honor.

[00:31:28] Speaker 01:
I think that on these facts, on this record, at the risk of repeating what I've said already, I think that it's the way that the tinnitus

[00:31:40] Speaker 01:
the tinnitus diagnosis was put on the record didn't rise to the level of putting the VA on notice that there was a claim for tinnitus to be adjudicated.

[00:31:49] Speaker 02:
Because I can imagine.

[00:31:51] Speaker 01:
Or there was a concern that it didn't.

[00:31:52] Speaker 01:
Obviously, I don't disagree that later the board found it was reasonably raised.

[00:31:57] Speaker 01:
But that sort of looking back with the clarity of the remand isn't what's critical or isn't what's instructive for the purposes of answering this prevailing party question for EJA.

[00:32:06] Speaker 01:
And I guess that's the bifurcation.

[00:32:10] Speaker 04:
OK, any further questions?

[00:32:11] Speaker 03:
Can we go back to something you said at the very beginning of your presentation?

[00:32:14] Speaker 03:
You talked about application of the proper legal standard, or whether or not the veterans court applied the proper legal standard, but then about how there isn't jurisdiction to review the actual application of it, the facts of the case.

[00:32:32] Speaker 03:
So are you saying that that second part is all academic, to the extent that's been discussed?

[00:32:37] Speaker 01:
The second part?

[00:32:38] Speaker 03:
the lack of jurisdiction.

[00:32:40] Speaker 01:
I see.

[00:32:40] Speaker 01:
I see.

[00:32:40] Speaker 01:
Well, so this is reflected in our brief as well.

[00:32:44] Speaker 01:
As an initial matter, it's the government's position that there's no jurisdiction to consider the application of the EJA statute to the facts of Mr. Christopher Foley's appeal of the veterans denial of EJA fees.

[00:32:58] Speaker 01:
I wouldn't say that's academic.

[00:32:59] Speaker 01:
I'd say that that's the first.

[00:33:01] Speaker 01:
Those are the grounds on which we think it's appropriate for this court to not consider the appeal.

[00:33:05] Speaker 01:
I welcome the discussion, of course, that we've had about his status as a prevailing party.

[00:33:11] Speaker 03:
So in your view, what's the precise question that we have to address?

[00:33:15] Speaker 01:
The precise question I think we have to address is affirming, I suppose, this court's standard that when a remand to an administrative agency is for the purposes of giving the veteran or giving the EJA applicant the chance to make arguments for the first time before the board,

[00:33:34] Speaker 01:
that that does not confer prevailing party status.

[00:33:36] Speaker 01:
And it's our position that this case tracks very well to the Davis case, the Robinson case instances, where this court has made that clear.

[00:33:46] Speaker 03:
Thank you.

[00:33:49] Speaker 04:
All right.

[00:33:50] Speaker 04:
Thank you very much.

[00:33:50] Speaker 01:
Thank you, Your Honor.

[00:33:51] Speaker 04:
We ask that the Veterans Court of Decision be affirmed.

[00:33:54] Speaker 04:
Mr. Villescaz, we'll give you two minutes.

[00:34:03] Speaker 00:
The question that we need to ask is what other reason was there for this remand?

[00:34:08] Speaker 00:
If not to ensure that the board reviewed the entire record and if not to ensure the board adjudicated all claims that were raised by the record, there is no simply no other reason for this remand order.

[00:34:19] Speaker 00:
This is not the case where

[00:34:20] Speaker 00:
where we distinguished between Davis and Robinson and some of these others, where there was a different basis for the remand order.

[00:34:29] Speaker 00:
The Veterans Court, although it claims to have not found error, in fact sent this back to ensure that the board followed its statutes, followed its regulations to review the record and adjudicate any claims that were reasonably raised.

[00:34:45] Speaker 02:
Secretary's brief to the Veterans Court, not on the Egypt issue, but the merits that led to the February 2023 ruling, what, if anything, did the secretary say about why there was at least uncertainty about whether a claim of disability based on tinnitus was reasonably raised in the medical record?

[00:35:12] Speaker 02:
I don't think our appendix has that brief.

[00:35:15] Speaker 00:
Uh, I, I can't say, your honor, I can tell you what the, uh, what the veterans court may have said in their decision.

[00:35:24] Speaker 00:
Um, but their primary argument was that, that Mr. Christofeli had wait, had failed to raise this issue.

[00:35:31] Speaker 00:
And so issue of preclusion or issue of exhaustion should apply.

[00:35:35] Speaker 00:
Um, but again, regardless of.

[00:35:39] Speaker 00:
The argument that the secretary presents, Mr. Christofeli presented the issue, said that the record raised it.

[00:35:46] Speaker 00:
The Veterans Court sent it back to determine that specific legal requirement.

[00:35:50] Speaker 00:
And as Chief Judge Moore pointed out, it was reasonably raised.

[00:35:55] Speaker 00:
It was granted.

[00:35:56] Speaker 04:
Yeah, but you told me to ignore all that.

[00:35:58] Speaker 04:
Now, suddenly, you want to embrace it.

[00:36:00] Speaker 00:
No, Your Honor.

[00:36:00] Speaker 00:
Well, I will say that.

[00:36:02] Speaker 00:
But the point is that the Veterans Court recognized that the board had the obligation, as in Kelly, to look at all the evidence and to adjudicate these claims.

[00:36:11] Speaker 00:
And just, if I may, one last point.

[00:36:14] Speaker 00:
The prevailing party is a legal determination that this court reviews de novo.

[00:36:19] Speaker 00:
And that's scattered throughout all of the cases that were cited in the briefing.

[00:36:23] Speaker 02:
So we would ask that the veterans, or I'm sorry, we would ask that this court reverse the prevailing party determination and remand it back to... Can I just ask on that, which is, you know, isn't it odd that for purposes of prevailing party that on the normal 72-92 distinction between legal questions, I mean,

[00:36:46] Speaker 02:
the interpretation of law, legal rulings, and underlying factual determinations or applications, that you think that's just thrown out the window for Egypt?

[00:36:59] Speaker 00:
It is, Your Honor, because this court's precedent says it's a legal determination.

[00:37:03] Speaker 00:
It does caveat that it cannot review facts.

[00:37:06] Speaker 00:
But here, this is not fact-finding.

[00:37:09] Speaker 00:
This is not application of law to fact.

[00:37:11] Speaker 00:
It's looking at what the Veterans Court did and determining whether a prevailing party is present.

[00:37:18] Speaker 00:
This is, again, we

[00:37:21] Speaker 00:
We keep going back to Kelly because we think that the situations in the two cases are very, very similar enough that this court certainly has the jurisdiction to reverse.

[00:37:31] Speaker 04:
Thank you, counsel.

[00:37:33] Speaker 04:
I thank both lawyers.

[00:37:34] Speaker 04:
The case is taken under submission.