[00:00:00] Speaker 05: We are privileged to have sitting with us this morning, Chief Judge Renee Bum of the District of New Jersey. [00:00:08] Speaker 05: Welcome, Judge. [00:00:09] Speaker 05: Thank you, Judge. [00:00:10] Speaker 05: We have five cases on the calendar this morning. [00:00:13] Speaker 05: We had six. [00:00:13] Speaker 05: One was withdrawn and settled yesterday. [00:00:16] Speaker 05: Today we have two from the Court of Veterans' Appeals, one from the District Court, one from the PTAB, and one from the [00:00:26] Speaker 05: MSPD. [00:00:28] Speaker 05: That case and one of the veterans cases are submitted on the briefs and will not be argued. [00:00:34] Speaker 05: Our first case is Joshua Evans versus the Secretary of Veterans Affairs, 2023-2356. [00:00:40] Speaker 05: Mr. DeWakos. [00:00:43] Speaker 00: Good morning, Your Honor. [00:00:46] Speaker 00: Thank you, and may it please the Court. [00:00:47] Speaker 00: On behalf of Mr. Evans, I do want to thank this Court for this opportunity to present his appeal. [00:00:53] Speaker 00: I'd like to summarize four points at the outset. [00:00:55] Speaker 00: that I think will help the court understand these issues. [00:00:59] Speaker 00: Three deal with the resolution of the TDIU matter. [00:01:02] Speaker 00: Number one, the board denied the claim under the mistaken belief that there was no increased rating claim pending, and TDIU can only be within the scope of an increased rating claim. [00:01:12] Speaker 00: The Veterans Court, number two, denied the appeal because Mr. Evans only asked for TDIU as part of his PTSD claim, a fact finding that was never made by the board [00:01:23] Speaker 00: as we argued violates Chenery and 7261C. [00:01:26] Speaker 00: Number three, TDIU is within the scope of any claim so long as it is explicitly or reasonably raised before a final decision on a claim or an appeal. [00:01:37] Speaker 00: The fourth point concerns the scope of the 2010 claim. [00:01:40] Speaker 00: I don't want to focus on that today unless the court wants to, but I would like to stay focused on the TDIU. [00:01:47] Speaker 00: But to that point, because 4.71A directs the VA to separately raid neurological abnormalities resulting from a spine injury, when these are present, the nerve impairments are always within the scope of a spine claim as a matter of law. [00:02:03] Speaker 02: I was a little confused by the briefing, so can I just say what I think this case is about in English and then you can tell me if I'm right or not. [00:02:14] Speaker 02: You're trying to get fact date the 2017 date for TDIU. [00:02:19] Speaker 02: Prior to that, yes, Your Honor. [00:02:20] Speaker 02: And your argument is that it shouldn't be limited to the PTSD claim in which it was asserted, but it should claw back [00:02:29] Speaker 02: to the other disability claims you had for other stuff before that time? [00:02:33] Speaker 00: Correct, Your Honor. [00:02:34] Speaker 00: Primarily the left leg nerve impairment, which the VA determined was, well, we know it was filed at least in 2012. [00:02:44] Speaker 00: That's acknowledged. [00:02:46] Speaker 00: That's undisputed. [00:02:46] Speaker 02: But what was the status of that claim in 2017 when you filed the TDIU claim? [00:02:52] Speaker 00: It was under appeal before the board, Your Honor. [00:02:57] Speaker 00: I believe the substantive appeal was filed, but it all happened right around that same time. [00:03:03] Speaker 00: Regardless, a notice of disagreement had been filed. [00:03:06] Speaker 00: It was in appellate status waiting for a decision from the board when the TDIU claim was initially submitted. [00:03:15] Speaker 00: And what happened here is that when I became involved, I looked at the record. [00:03:22] Speaker 00: I noticed that he had this pending claim. [00:03:25] Speaker 00: And we had talked, and he had indicated that the NERV issue had contributed to it. [00:03:31] Speaker 00: So we wrote the board immediately and told them that the pending claim before the board should address a TDIU rating. [00:03:44] Speaker 00: The secretary, by the way, acknowledges that on page 8 of his brief. [00:03:49] Speaker 00: He doesn't point to that point in time, but after the court remanded the first decision because the board ignored that argument, the secretary says at this point he argued a combination of orthopedic and PTSD causes unemployability, citing Appendix 53. [00:04:07] Speaker 00: and then argued that the appeal should include three issues, high rating for lumbar, that's not before the court, radiculopathy, and TDIU. [00:04:16] Speaker 05: He asserted that it's a TDIU. [00:04:17] Speaker 05: Isn't there a jurisdictional issue here, application of law to fact? [00:04:21] Speaker 00: No, Your Honor. [00:04:22] Speaker 00: What we're asking this court to do is look at, number one, the Veterans Court violated Chenery first when it changed the basis of the, it affirmed on a different basis than the board. [00:04:34] Speaker 00: The board said that you cannot [00:04:36] Speaker 00: There was no increased rating claim pending, therefore Rice does not apply. [00:04:40] Speaker 00: The Veterans Court on the other hand held that his request for TDIU only was based on his PTSD. [00:04:48] Speaker 00: That fact was never adjudicated by the board and it certainly was not relied upon when it denied the appeal in 2021. [00:04:58] Speaker 00: So number one, we want this court to acknowledge that they violated Chenery. [00:05:01] Speaker 00: But two, that they also violated their statutory jurisdiction when they made that finding a fact. [00:05:06] Speaker 00: And they also made the finding a fact that when they addressed some evidence, there was an expert evidence that we had submitted to the VA. [00:05:15] Speaker 00: And they went into detail about what that evidence did or did not say. [00:05:19] Speaker 00: That is a clear factual determination that the board never touched, never even really addressed. [00:05:26] Speaker 00: when it was discussing the TDIU matter. [00:05:30] Speaker 00: The board essentially said, as a matter of law, you cannot be earlier than 2017, which is wrong. [00:05:36] Speaker 00: And that's the other part of this appeal, is that the law says, Roberson, Comer, Murphy to slightly different issue. [00:05:45] Speaker 00: But Roberson and Comer are on point in that when TDIU is either explicitly, as we did here, or implicitly raised, as in those cases, [00:05:57] Speaker 03: It's within the scope of that claim. [00:06:04] Speaker 00: So page 89 of the appendix, your honor. [00:06:06] Speaker 00: And again, these are things that the board didn't address and the Veterans Court did. [00:06:12] Speaker 00: So I understand that this court cannot review facts to law. [00:06:15] Speaker 00: But page 89 of the appendix, we very clearly wrote [00:06:19] Speaker 00: The appeal before you is for the left leg. [00:06:22] Speaker 00: We want you to also consider TDIU rating in conjunction with that appeal. [00:06:28] Speaker 00: That was the first time. [00:06:29] Speaker 00: The board ignored it. [00:06:30] Speaker 00: We got a remand to address it. [00:06:33] Speaker 00: Or they've got a remand from the Veterans Court. [00:06:35] Speaker 00: There was some other procedural events that happened. [00:06:40] Speaker 00: But then when it came back up, again, page 8 of the secretary's brief, page 53, 51 to 54, they cite [00:06:48] Speaker 00: They acknowledged that we raised it to the board that we wanted them to consider TDIU with the left leg nerve claim. [00:06:56] Speaker 00: And so it was, so long as it's raised with that claim, before a final decision is made, either on a claim as in Roberson or on appeal here, it's within the scope of that claim. [00:07:10] Speaker 02: OK. [00:07:11] Speaker 02: We seem to be jumping back and forth, and I'm getting a little confused between your Chenery argument and then your other argument. [00:07:17] Speaker 02: Let's go back to the Chenery argument. [00:07:19] Speaker 02: The board, February 2021, held that one, there was no claim for an increased raising pending on appeal when the TDIU claim was filed. [00:07:28] Speaker 02: Two, the TDIU was a separate claim of entitlement and not a claim based on an increase in severity for the existing service-connected disability. [00:07:36] Speaker 02: And three, even if the board were to assume entitlement, should have arose earlier, a grant of benefits cannot occur before the claim was made. [00:07:46] Speaker 02: What did the board what did the court of veterans claims? [00:07:51] Speaker 02: What is their fact-finding that you say was beyond what the board or something different and new? [00:07:57] Speaker 00: Beyond what the board so page 12 the appendix your honor that that the full paragraph the evidence points to it Mr.. Evans points to regard as an employability links it not to the left leg radiculopathy But to PTSD and then at the end of it [00:08:14] Speaker 00: or I'm sorry, then it goes into, that's the primary issue that the book, I'm sorry, page 11. [00:08:25] Speaker 02: Well, how is that different than what the board said in terms of the consequence, where they said it wasn't about, it wasn't tied to any of these other things? [00:08:35] Speaker 02: So it's a matter of record it was tied to the PTSD. [00:08:38] Speaker 02: Nobody was disputing that. [00:08:39] Speaker 02: Correct, Your Honor. [00:08:40] Speaker 02: Right. [00:08:40] Speaker 02: So I don't quite understand that. [00:08:43] Speaker 00: So the initial filing, he said, as a pro se, unrepresented veteran, I have PTSD, which was service-connected, and I can't work. [00:08:52] Speaker 00: And so he asked for it for the condition that was service-connected. [00:08:56] Speaker 00: When he hired me, I looked at it, I talked to him, and he realized, oh, I can claim it before the nerve is service-connected. [00:09:05] Speaker 00: And that's what we did. [00:09:07] Speaker 00: The service-connection issue was before the board, and we asked them to consider it. [00:09:12] Speaker 04: When did you ask that? [00:09:14] Speaker 00: The first time before it was around 2017, I'm not sure the exact date, Your Honor. [00:09:19] Speaker 04: I think it was 2018. [00:09:20] Speaker 00: Or maybe 18, but it was before the very first board decision that was later vacated and before the board's remand. [00:09:28] Speaker 00: which predated the final decision that's now before this court. [00:09:32] Speaker 00: So it was raised at least three different times to the board that he was asking for this rating as part of the neurological abnormality. [00:09:44] Speaker 00: And what the board did, to your point, Judge Pros, [00:09:49] Speaker 00: What the board did was said, as a matter of law, we cannot go earlier than 2017 because there was no increased rating claim pending to attach it to. [00:10:02] Speaker 00: And what the Veterans Court said is, well, that's not entirely correct. [00:10:06] Speaker 00: You can because Rice kind of does that. [00:10:09] Speaker 00: But in this case, you didn't raise it as part of the NERV claim. [00:10:14] Speaker 00: And those are two very different rulings. [00:10:16] Speaker 00: One is a legal determination that there cannot ever be a claim. [00:10:20] Speaker 00: And two is that under these facts, you did not do this. [00:10:25] Speaker 00: And so by changing the basis of the determination, [00:10:31] Speaker 00: the Veterans Court first violated Chenery, and then also, while doing that, determined facts in the first instance, which the board never did. [00:10:39] Speaker 00: And the secretary points to some fact finding by the agency below the board. [00:10:45] Speaker 00: The board is one who makes final decisions. [00:10:47] Speaker 00: But even so, those determinations were based on an entirely different fact set where they were looking at. [00:10:55] Speaker 02: Can we go back to Judge Laurie's first question, which is the law of facts? [00:10:59] Speaker 02: Rice is the centerpiece of this case. [00:11:02] Speaker 00: Yes, Your Honor. [00:11:02] Speaker 02: You're not contending that Rice was wrongly decided. [00:11:06] Speaker 02: You're contending that the CAVC improperly applied the principles articulated in Rice. [00:11:14] Speaker 00: Correct, Your Honor. [00:11:15] Speaker 02: Okay. [00:11:16] Speaker 02: Why is that a lot of facts? [00:11:21] Speaker 00: Mike, let me back up. [00:11:23] Speaker 00: Let me back off of that just a bit, Your Honor. [00:11:26] Speaker 00: Our contention is that when the scope of the claim was looked at, that the Veterans Court misapplied Murphy from this court, Rice from its own court, Comer, and Roberson in saying essentially that, in affirming the board's determination, [00:11:45] Speaker 00: And again, we have to look at what the board did here. [00:11:48] Speaker 00: Yes, the Veterans Court did a lot of things in violation of the Chenery and its jurisdictional statute. [00:11:53] Speaker 00: But the determination of the board was that he cannot file a claim. [00:11:58] Speaker 00: There was no claim pending to attach TDIU to because it was not an increased rating claim. [00:12:05] Speaker 00: And that's wrong. [00:12:06] Speaker 00: That's not Rice. [00:12:07] Speaker 00: That's not Murphy. [00:12:08] Speaker 00: That's not Roberson. [00:12:09] Speaker 00: That's not Comer. [00:12:10] Speaker 00: All of those stand for the proposition that the evidence [00:12:15] Speaker 00: developed during the entire life of the claim informs us what the scope of that claim is. [00:12:20] Speaker 00: So that's the Rice legal error that the board made. [00:12:23] Speaker 00: The Veterans Court compounded that by affirming that, but then also affirming the ultimate decision [00:12:32] Speaker 00: But in doing it in a way that violates Chenery in its jurisdiction. [00:12:36] Speaker 05: But the question whether Evans implicitly raised the TDIU claim prior to February 2017 is law or fact? [00:12:47] Speaker 05: Is fact? [00:12:49] Speaker 00: Prior to 2017, Your Honor, or 2021? [00:12:51] Speaker 05: 2017. [00:12:55] Speaker 00: It is not, Your Honor. [00:12:57] Speaker 00: I think that, again, this is Roberson. [00:12:59] Speaker 00: This is just an application of Roberson and Comer. [00:13:01] Speaker 00: And the secretary, well, first, that question needs to go back to the board. [00:13:08] Speaker 00: That's what we asked for in our brief. [00:13:10] Speaker 00: We're not asking this court to solve that question because it is fact-finding. [00:13:14] Speaker 00: It is, what is the scope of the claim that was pending before the board when it made the 2021 decision? [00:13:21] Speaker 00: The board never got to that question. [00:13:24] Speaker 00: It said, we can't go earlier than 2017 because there was no increased rating claim. [00:13:30] Speaker 00: And then the Veterans Court stepped in and did the job of the board [00:13:34] Speaker 00: Wrongly, we, you know, again, this court's not going to look at what their fact-finding was, but just based on page eight of the secretary's brief, there's some doubt as to what the court's fact-finding was. [00:13:46] Speaker 00: So we want this to go back to the board for one, to correctly apply Rice, Roberson, Comer, Murphy, and two, to tell us what the scope of that claim was. [00:13:59] Speaker 00: Yes, Your Honor. [00:13:59] Speaker 00: I will reserve the rest unless there are any other questions. [00:14:02] Speaker 05: We will give you three minutes. [00:14:04] Speaker 00: Thank you, Your Honor. [00:14:10] Speaker 05: Mr. Hawking. [00:14:13] Speaker 01: May I please escort? [00:14:15] Speaker 01: There's no tennery issue in this case. [00:14:17] Speaker 01: There is a rice issue. [00:14:19] Speaker 01: This case is all about what does rice mean, argued before the board and the veterans court and before this court. [00:14:26] Speaker 01: Mr. Evans suggests that rice means something that rice doesn't hold, which is, and let me just tell you what rice holds. [00:14:33] Speaker 01: Rice holds that if someone is pursuing a new claim or a claim for increase, and during the course of the development of that claim, evidence comes for that the individual is unemployable under the TDIU unemployability regulation. [00:14:51] Speaker 01: The effective date for a subsequent award for the TDIU would be the same as the date that started that particular claim, whether it be a new claim or a claim for increase, and Rice goes into some explanation about why that is. [00:15:06] Speaker 01: What this case is about is an attempt, and before I say what this case is about, Rice has a situation in which the basis of the TDIU is the same as the basis of either the new claim or, in that case, the claim for increase. [00:15:23] Speaker 01: So what we have in this case is lots of different claims are being pursued at different times. [00:15:29] Speaker 01: Some are physical, involving the legs and the lumbar spine. [00:15:33] Speaker 01: And one is mental, involving post-traumatic stress disorder. [00:15:37] Speaker 01: And it is the post-traumatic stress disorder disability that forms the basis for the award by VA in this case of TDIU, and that's at Appendix 99. [00:15:49] Speaker 01: And it's clear that that RO says, and RO, I will just say as an aside, is a very significant entity within the VA claim process. [00:15:59] Speaker 01: It is below the board. [00:16:00] Speaker 01: But if there's no appeal, it is the final agency action. [00:16:03] Speaker 01: It's like a district court judge's pronouncement that doesn't get appealed. [00:16:07] Speaker 01: It's not worth less simply because it doesn't get appealed. [00:16:11] Speaker 01: So that's what Rice says. [00:16:14] Speaker 01: And what Mr. Evans is arguing here is, well, the board and the Veterans Court misapplied Rice because I have this pending leg nerve claim out there. [00:16:26] Speaker 01: And it was live at the time the PTSD award came. [00:16:30] Speaker 01: So I should be able to look to that claim and then follow it back in time to when it originated for purposes of the affected date of my TDIU, notwithstanding that there's no evidence of record suggesting that that leg injury had anything to do with the TDIU award. [00:16:47] Speaker 01: In fact, at the reply at 7, [00:16:50] Speaker 01: Mr. Evans concedes that he's never challenged the idea, to your point, Your Honor, of whether the evidence suggested, prior to 2017, TDIU. [00:17:02] Speaker 01: It's only at the submission of the claim in 2017 when Mr. Evans, unfortunately, was hospitalized at the end of 2016 for a PTSD episode. [00:17:11] Speaker 01: And then when he was released, submitted a claim. [00:17:13] Speaker 01: And in that claim for increase, because he had, at that point, been already awarded a couple of years earlier a 50% claim, it had been [00:17:21] Speaker 01: He had asked for a decision review officer review, which is a higher level review in that initial office. [00:17:27] Speaker 01: He had asked for one of those in 2012, and it was denied. [00:17:31] Speaker 02: Are we talking about PTSD? [00:17:32] Speaker 01: Yes, we're talking about the history of the PTSD. [00:17:35] Speaker 01: And so at that point in 2012, 2014, the lumbar spine claim, that had been denied and wasn't being pursued. [00:17:44] Speaker 01: It was over. [00:17:45] Speaker 01: The PTSD claim had been denied, wasn't being pursued, it was over. [00:17:49] Speaker 01: The right leg nerve claim, same thing. [00:17:51] Speaker 01: The only thing alive was this left leg claim, and it had been denied because he had failed to identify that he actually had it. [00:17:57] Speaker 01: There had been no evidence in the record, according to the VA, that he was actually suffering from it. [00:18:01] Speaker 01: So no present disability. [00:18:03] Speaker 01: He had challenged that, and was continuing to challenge that, and did until about 2020 when the board finally granted that benefit. [00:18:10] Speaker 01: So when the PTSD incident arises causing Mr. Evans to be hospitalized in 2016, he submits a new claim in the beginning of 2017. [00:18:21] Speaker 01: And in that claim, he actually asked for both an increase and TDIU, which is granted. [00:18:32] Speaker 01: I'm going to change that fact for a second to demonstrate how Rice would operate. [00:18:36] Speaker 01: Let's say he comes in and just asked for the increase. [00:18:40] Speaker 01: And in the course of developing that increased claim, the VA determines that he's actually unemployable. [00:18:47] Speaker 01: Maybe it happens a year later, two years later. [00:18:50] Speaker 01: When they go ahead to award the damages under Rice, notwithstanding the fact that he didn't actually identify TDIU in that 2017 claim, he gets the benefit under Rice of [00:19:02] Speaker 01: the 2017 date for the TDIU award. [00:19:05] Speaker 01: That's how Rice works. [00:19:06] Speaker 04: And that's what happened here, isn't it? [00:19:08] Speaker 01: Well, it didn't have to happen here, because he actually asked for both. [00:19:11] Speaker 04: So there's no Rice here. [00:19:13] Speaker 01: Rice doesn't even get implicated. [00:19:14] Speaker 01: But the hypothetical I just explained would be how Rice would work. [00:19:19] Speaker 04: And that's how it would work. [00:19:22] Speaker 04: And your position is that Evans is trying to make this a legal issue, when in fact it isn't. [00:19:31] Speaker 01: I would actually say he's trying to suggest that rice means something it doesn't. [00:19:36] Speaker 01: So to the extent he's making an argument that rice stands for a proposition that it doesn't stand for, that could be considered a legal question. [00:19:44] Speaker 01: And this court could say, we don't read rice that way, as the Veterans Court didn't read it in this case. [00:19:49] Speaker 01: And as we suggest in our briefs, it's not the proper way to read rice. [00:19:53] Speaker 01: Simply because someone, and it's very common in the VA that people have various claims and various stages of development [00:20:01] Speaker 01: I could have a pinky thing, and I could have a mental thing, and I could have a toe thing, all going separately through the system. [00:20:08] Speaker 02: And simply because- And he didn't ask for TDIU in connection with any of the other claims? [00:20:13] Speaker 01: He did not ask for TDIU with connection to any of the other claims prior to when he asked for it with respect to PTSD. [00:20:20] Speaker 01: Then, as counsel mentioned and referenced in the book, in the appendix, the year after, [00:20:29] Speaker 01: While he was pursuing his lay claim, he said, hey, by the way, I think that you should consider a TDIU because I think my lay claim contributed to it. [00:20:38] Speaker 04: And that's in Appendix 89. [00:20:39] Speaker 01: Yeah, that's the one that comes after in 2018. [00:20:42] Speaker 01: So by then, he'd already been in receipt of TDIU, based entirely on the PTSD. [00:20:48] Speaker 01: So the point of him doing that is to try to get an earlier effective date, to try to tie it back to one of these other things. [00:20:56] Speaker 01: Rice is not available, as we explained in our briefs, to allow that to happen. [00:21:00] Speaker 01: So this court would have to change Rice and say, it doesn't matter. [00:21:05] Speaker 01: It doesn't have to be a relationship between the basis of the claim for increase, like was the case in Rice, and the basis for the TDIU award. [00:21:13] Speaker 01: But that's where it goes. [00:21:14] Speaker 04: That's why I noticed the question earlier, which is it seems to me that the appellant is trying to make it a legal issue, i.e. [00:21:20] Speaker 04: a Rice issue, when in fact, [00:21:21] Speaker 04: Your position is it is not. [00:21:23] Speaker 01: Well, it's, I mean, yeah. [00:21:26] Speaker 01: Our position is Rice was properly applied to this case, or rather not applied to this case, because the argument was Rice requires you to give me this back date in this situation. [00:21:37] Speaker 01: And that's why we don't have a Chenery problem here, because that's the argument he put forth at the Vectors' Court and at the board. [00:21:43] Speaker 01: And at both levels, and I do believe the board does respond to this on 22, [00:21:52] Speaker 01: Thanks to when it says There was no increased rating claim on appeal The TIU was a separate claim of entitlements in itself That's not it may not be using the words that mr. Evans would prefer But that's what he's saying it the board is saying you don't and it says on the page before to Thanks, 21. [00:22:16] Speaker 01: You don't meet the rice requirement [00:22:18] Speaker 01: which is an exception to 5110. [00:22:21] Speaker 01: Maybe we should just talk about that for a second. [00:22:23] Speaker 01: 5110 is the statute that applies for effective dates. [00:22:27] Speaker 01: 38 U.S.E. [00:22:27] Speaker 01: 5110A is subsection A is the one that's generally applicable here. [00:22:32] Speaker 01: And the two prongs for that type of analysis are [00:22:35] Speaker 01: The effective date for an award is based on the date of the claim or facts found whichever is later now generally that's the date of the claim because you go and submit a claim because you've gone to a doctor and Been told you have a condition that could be related to your service you file a claim and so that's how it works sometimes it can be the opposite and that's where rice kind of steps in where the facts found for the unemployability part come after [00:23:01] Speaker 01: the date of the claim, just because that's how it was developed. [00:23:04] Speaker 01: And Rice then creates this exception to the normal statutory rule by allowing you to use the same date of the [00:23:13] Speaker 01: original claim as long as it's the same claim that forms the basis for the TDIU award. [00:23:19] Speaker 01: So that makes sense and that's why here you can't stretch rice in the way that Mr. Evans would like because he's saying it doesn't matter if the basis of the PTSD was different than this other claim I've got out here I just have to have this other claim out here so I should be able to benefit from an earlier effective date and our position is no. [00:23:37] Speaker 01: It has to be kind of one of the kind of [00:23:41] Speaker 01: It's one of the fundamental principles of veterans law is this concept of nexus. [00:23:46] Speaker 01: It comes up with the how do you get service connection. [00:23:49] Speaker 01: You have a present disability, you have an event in service, and you have the nexus. [00:23:52] Speaker 01: And this is kind of another way of a nexus example here within how the VA process works. [00:23:57] Speaker 01: There has to be a nexus in order for you to benefit from this exception [00:24:01] Speaker 01: to 5110, which normally says it's the latter of facts found or claim. [00:24:06] Speaker 01: And like I said, here that would have been the claim. [00:24:09] Speaker 01: But he gets the benefit of rice. [00:24:13] Speaker 01: But rice, that's all he gets. [00:24:15] Speaker 01: Or he doesn't actually get the benefit of rice here. [00:24:17] Speaker 01: But factions generally would get that kind of benefit if they met the criteria of rice. [00:24:25] Speaker 01: I think that frankly sums up our view is this is a TDIU. [00:24:30] Speaker 01: Mr. Evans was very good in immediately asking not only for an increase in 2017 but also asking for TDIU. [00:24:40] Speaker 01: He got it immediately and this [00:24:44] Speaker 01: The leg issue that's been going on is not a basis to disturb that finding. [00:24:50] Speaker 01: The Veterans Court's reference to that finding, which Mr. Evans now claims is a Chenery violation, is a classic example of a court responding to a legal argument by pointing out that the facts don't support it. [00:25:03] Speaker 01: So the way that works is he comes in and says, Rice requires my claim to be granted. [00:25:10] Speaker 01: And the Veterans Court comes back and says, no, PTSD [00:25:13] Speaker 01: was the basis for the TDIU award. [00:25:17] Speaker 01: Not your leg. [00:25:18] Speaker 01: That's not a chennery thing. [00:25:20] Speaker 01: That's just recognizing that what the RO did back in 2017 in appendix 99 and what the board said again in rejecting his Rice theory in appendix 22. [00:25:32] Speaker 01: It's what every court would say when you're confronted with, oh, this is how this works. [00:25:37] Speaker 01: As a matter of fact, that law does not apply in the way you think it does. [00:25:41] Speaker 05: So you think we have jurisdiction because this is a question of interpreting Rice? [00:25:46] Speaker 05: Or is it a question of applying Rice to facts? [00:25:49] Speaker 01: So the answer to that question, Judge Lurie, is it depends on how you interpret the blue brief. [00:25:59] Speaker 01: You could find that this is just challenging the Beckton's Court's application of Rice to the facts of the case. [00:26:05] Speaker 01: You could also say that he's arguing that Rice was, but he doesn't. [00:26:10] Speaker 01: He clearly says this, but implied in his argument is that Rice means more than it is. [00:26:15] Speaker 01: So the result could be either a dismissal or an affirmance, depending on how the court reads the blue brief. [00:26:22] Speaker 03: Can I ask this question? [00:26:23] Speaker 03: Is there any evidence in the record prior to 2017 on employability? [00:26:30] Speaker 01: Nothing that would, I think, meet what typically is unemployability. [00:26:36] Speaker 01: I would respond in this way, though, that there is evidence of what I would call employability. [00:26:45] Speaker 01: First of all, he leaves the service in 2010. [00:26:48] Speaker 01: And then for the next three years, as I understand it, and you can look at appendix [00:26:52] Speaker 01: 105 and then appendix 69, which is a 5 September 2013 exam, he indicates he's actually attending college. [00:27:03] Speaker 01: And when you read the exam or all the appendix together, it looks like he attended college for three years, presumably between 2010 and 2013. [00:27:10] Speaker 01: That's not evidence of unemployability. [00:27:12] Speaker 01: And then in 21 October 2014, which is the date that the decision review officer denied [00:27:22] Speaker 01: claims for increase for both the lumbar spine and the PTSD before the 0.17 incident. [00:27:29] Speaker 01: It's indicated that he's working as a sales associate, also not evidence of unemployability. [00:27:34] Speaker 01: Even when the claim is later pursued before the agency and a vocational expert is retained by Mr. Evans, that vocational expert [00:27:47] Speaker 01: says that the leg injuries would probably support sedentary employment, which isn't enough. [00:27:54] Speaker 01: But it's the PTSD that would support unemployability. [00:27:59] Speaker 01: But he's already indicated that. [00:28:00] Speaker 03: There's no such answer. [00:28:01] Speaker 01: Yeah, that would be the short answer. [00:28:04] Speaker 05: Thank you. [00:28:05] Speaker 05: Thank you. [00:28:05] Speaker 05: Mr. Doakes has three minutes if he needs it. [00:28:17] Speaker 00: Your Honor, to your point, whatever the record showed prior to 2017 is not before this Court. [00:28:23] Speaker 00: It's a factual matter, which is our primary issue that the Board never did that. [00:28:27] Speaker 00: The Court did. [00:28:28] Speaker 00: The Board did not. [00:28:30] Speaker 00: The Secretary is actually correct in their explanation of Rice, but he runs astray where he says that once you've requested TDIU for one or more disability, you can never change [00:28:42] Speaker 00: your basis for seeking an unemployability rating. [00:28:44] Speaker 00: When the TDIU was granted, Mr. Evans was not yet being compensated for the left leg nerve impairment. [00:28:51] Speaker 00: That's the crux of this entire argument is veterans should be allowed to change the nature of their rating when new disabilities are added because it adds additional impairment. [00:29:07] Speaker 00: As we know, Saunders interpreted disability to be functional impairment [00:29:11] Speaker 00: And so once the disability picture changes, the VA has to go back to the date of that claim, 2012 or 2010, whatever it ends up being, and reassess his entire rating. [00:29:22] Speaker 00: TDIU is not a claim. [00:29:24] Speaker 00: All the case law from the Veterans Court from this court has over and over again affirmed that TDIU is not a claim. [00:29:34] Speaker 00: It is a rating. [00:29:35] Speaker 00: And just as if they were to assign a 10%, a 40%, a 70% to any disability, and it combines to their combined rating, [00:29:44] Speaker 00: they have to consider a TDIU rating if it's raised by the veteran. [00:29:49] Speaker 00: When he told the VA, I can't work in part because of my now or soon to be service-connected nerve disability, that's what triggers the VA's obligation under Roberson, under Comer, under Rice to consider the TDIU rating when it assessed the rating of his nerve. [00:30:08] Speaker 00: Now, the board could have remanded it and said, we haven't gotten a decision from the RO. [00:30:13] Speaker 00: Let's wait to see what they say, because there is quite a bit of unknowns in there in just how severe the nerve disability is. [00:30:21] Speaker 00: But none of that analysis was done. [00:30:24] Speaker 00: The board simply said, this is not an increased rating. [00:30:27] Speaker 00: Therefore, we can't attach a TDIU rating to it. [00:30:30] Speaker 00: That's wrong. [00:30:32] Speaker 00: The secretary just confirmed that when they explained how Rice works. [00:30:36] Speaker 00: Rice is when any claim [00:30:38] Speaker 00: is pending and the veteran either explicitly asks in this case or the record reasonably raises it at any point in time. [00:30:48] Speaker 00: There's no case law and the law really doesn't support a notion that you can't go back further than when the evidence or the veteran requested that specific rating. [00:31:00] Speaker 00: The evidence tells us what the severity of the conditions are [00:31:03] Speaker 00: in combination, and when new additional disabilities are added to the picture, it requires the VA to go back, reassess everything, and determine whether an unemployability rating is appropriate. [00:31:17] Speaker 00: So that I'm out of time, and I appreciate, unless there are any questions, we just ask to vacate the decision and send it back to the board for initial fact-finding. [00:31:28] Speaker 05: Thank you, Counsel. [00:31:29] Speaker 05: We appreciate both arguments and the cases submitted.