[00:00:00] Speaker 05:
Our next case is Robert Laird versus the Secretary of Veterans Affairs, 2024-1263.

[00:00:05] Speaker 05:
Ms.

[00:00:07] Speaker 05:
Malinowski, good morning.

[00:00:11] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
Mr. Laird is a Marine who spent two and a half years in Vietnam, where his job was piecing together bodies to identify them.

[00:00:20] Speaker 02:
He identified over 2,000 dead Marines, including some of his friends.

[00:00:26] Speaker 02:
This appeal concerns his resulting psychiatric disorder, which he claimed in 2000.

[00:00:33] Speaker 02:
He was service-connected for the psychiatric disorder, but he appealed his rating.

[00:00:39] Speaker 02:
The board mistakenly treated his request for an appeal as an increased rating claim.

[00:00:45] Speaker 02:
This matters because it changed the record under review.

[00:00:51] Speaker 02:
Appeals of initial ratings decisions need to be decided based on all the evidence of

[00:00:56] Speaker 02:
But in this case, because the board thought it was considering a claim for increase, it limited its review to the 12 months before the claim for increase, which is also called the one-year look back period.

[00:01:09] Speaker 05:
But the question is harmless error.

[00:01:11] Speaker 05:
Yes.

[00:01:11] Speaker 05:
And isn't that an application of law to fact?

[00:01:17] Speaker 05:
And do we therefore not have jurisdiction?

[00:01:21] Speaker 02:
You have jurisdiction.

[00:01:22] Speaker 02:
There are two reasons.

[00:01:24] Speaker 02:
The court made a mistake of law when it rubber stamped the board's use of the limited look back period.

[00:01:31] Speaker 02:
But also the board, or the Veterans Court, exceeded its jurisdiction.

[00:01:35] Speaker 05:
That gets to whether it's a harmless error.

[00:01:38] Speaker 05:
You say the board made a mistake, but is it harmless?

[00:01:43] Speaker 05:
And doesn't that require going into the facts?

[00:01:50] Speaker 02:
So the board.

[00:01:56] Speaker 02:
It's not an evaluation of facts, or it's only an evaluation of the facts to the extent that these factual findings are a product of a mistake of the law.

[00:02:11] Speaker 03:
OK, so just going back to this.

[00:02:14] Speaker 03:
Veterans Court says that the board aired should have considered this as a notice of appeal, right?

[00:02:22] Speaker 03:
Yes.

[00:02:23] Speaker 03:
A notice of disagreement.

[00:02:25] Speaker 03:
And then says, but it doesn't matter anyway because the veteran would not have been successful in getting an earlier effective date, right?

[00:02:35] Speaker 03:
Correct.

[00:02:35] Speaker 03:
And you say that in doing that, the Veterans Court considered all the evidence.

[00:02:41] Speaker 03:
And so how can we say that there's an error?

[00:02:45] Speaker 03:
How can we review the harmless error determination?

[00:02:49] Speaker 03:
I'm having a hard time with that same question.

[00:02:51] Speaker 02:
So are you asking whether the Veterans Court shall?

[00:02:56] Speaker 03:
I'm trying to figure out if we have jurisdiction.

[00:02:59] Speaker 03:
And specifically, I'm asking how can we review the harmless error determination by the Veterans Court when

[00:03:08] Speaker 03:
It's a question of application of law to fact.

[00:03:13] Speaker 02:
It's not an application of law to fact.

[00:03:15] Speaker 02:
It's a question of law, of whether the Veterans Court chose to use the correct law, the law for the appeals or the law for increased ratings.

[00:03:24] Speaker 02:
And another way to phrase it is when the board, or when the Veterans Court found that the board could have reached the same conclusion on other permissible grounds, and it does say these words, other permissible grounds,

[00:03:37] Speaker 02:
Well, we know that the board conducted a limited evidence review.

[00:03:43] Speaker 02:
So the Veterans Court was saying the board's findings, somehow, whatever it found would have been on permissible grounds.

[00:03:51] Speaker 02:
Well, it was never permissible grounds because it was conducted in the context of this limited look back period.

[00:03:57] Speaker 02:
So the board or the Veterans Court was rubber stamping the board's use of the limited look back period.

[00:04:08] Speaker 04:
Is your contention that the board didn't review your whole claim, as I understand it, turns on the proposition that the board ignored the June 11, 2011 exam?

[00:04:26] Speaker 04:
Is that correct?

[00:04:28] Speaker 01:
Yes.

[00:04:29] Speaker 04:
But if you look at the record, and I'm not, I can't get into the facts here, but the proposition is you look at the record, look at pages 1450, 2024 through 2028, there are certainly there references to the June 11, 2011 exam, June 2011 exam, June 9th was the exam.

[00:04:58] Speaker 04:
Isn't wasn't that before the board?

[00:05:00] Speaker 04:
How can you say it wasn't considered?

[00:05:04] Speaker 02:
Because the board made explicit at the bottom of appendix 17 in the last full sentence that it had limited review of the evidence to evidence that receipt was received within one year prior to the date of the receipt of the October 2012 claim.

[00:05:20] Speaker 02:
It has told us that it did not review any evidence before October 2012 or for October 2011.

[00:05:28] Speaker 04:
But what do we do with the references, though, that I cited to that exam, the June 2011 exam?

[00:05:36] Speaker 02:
So where are the references coming from again?

[00:05:39] Speaker 04:
It's pages, let's see, 1450 of the appendix, 2024, and 2026 through 2028.

[00:05:51] Speaker 04:
These are prior.

[00:05:53] Speaker 04:
I think 1450.

[00:05:55] Speaker 04:
is a board reference.

[00:05:58] Speaker 04:
The board refers to it.

[00:06:00] Speaker 04:
And the other sites are examinations that were before the board.

[00:06:06] Speaker 02:
Those are prior board decisions?

[00:06:07] Speaker 04:
Yes.

[00:06:08] Speaker 02:
The board needed to reconsider in this decision because this was a different question.

[00:06:14] Speaker 02:
They were looking at different issues in the prior board decisions.

[00:06:18] Speaker 02:
Now that they've reached the question of whether this October 2012 filing was an appeal or a rating decision, the questions of what's relevant changed.

[00:06:29] Speaker 04:
But doesn't, I guess getting back to the discussion you were having with Judge Lorne and Judge Stone, it seems to me that just our colloquy here that we're having really seems to make it clear that we're talking about application of law to fact.

[00:06:47] Speaker 04:
It's hard for me, given the dialogue we've been having, to conclude that this isn't application of law to fact, this whole question of the June 2011 exam not being considered.

[00:07:02] Speaker 04:
That's the whole crux of that point, right?

[00:07:04] Speaker 02:
We would respectfully disagree.

[00:07:06] Speaker 02:
And I want to turn now to the question about the fact-finding error.

[00:07:10] Speaker 04:
That's in a statement where the board says, because that finding remains intact, there's no way for Mr. Laird to obtain an effective date, right?

[00:07:23] Speaker 04:
But isn't that just a situation of the court commenting on the evidence?

[00:07:29] Speaker 04:
Here's what the evidence says.

[00:07:31] Speaker 04:
I don't see a fact finding there by the court, which is what your complaint is, right?

[00:07:35] Speaker 02:
Yes.

[00:07:38] Speaker 04:
Explain where the court there is making an impermissible fact finding.

[00:07:45] Speaker 02:
When the court says that there's no way for Mr. Laird to obtain an effective date earlier than what has already been awarded, the board told us that it had not looked at that June 2011 exam.

[00:07:59] Speaker 02:
In order for the Veterans Court to find there was no way that he could have received an earlier effective date, it necessarily had to have reviewed that exam.

[00:08:06] Speaker 02:
There's no other way.

[00:08:09] Speaker 04:
But there's no indication that there was a review of that exam by the Veterans Court.

[00:08:14] Speaker 04:
I mean, it just seems to me the Veterans Court is commenting on the finding with respect to the October, was it 2013, where they said here was where the 70% rating was established, right?

[00:08:30] Speaker 04:
It seems to me that what you have here is the Veterans Court, just in light of that, commenting on the evidence, not making a finding on its own.

[00:08:45] Speaker 02:
No, this was a finding.

[00:08:46] Speaker 02:
The finding that there was no way he could have received an earlier effective date than what was already awarded.

[00:08:51] Speaker 02:
The board didn't even consider that question.

[00:08:54] Speaker 02:
The board didn't consider whether his effective date

[00:08:57] Speaker 02:
where the effective date for his increase could have gone back to 2010.

[00:09:00] Speaker 02:
The board never find that.

[00:09:02] Speaker 02:
They never got to that question.

[00:09:04] Speaker 02:
Therefore, it had to be found by the Veterans Court for the Veterans Court to say there's no way for an earlier effective date.

[00:09:16] Speaker 02:
So the board talks about a case, Gaston v. Shinseki.

[00:09:24] Speaker 02:
It's easy to read Gastone as requiring a review of the whole record, but it doesn't say that.

[00:09:31] Speaker 02:
Gastone says the board looks at the one year look back period to see if the increase happened in that one year.

[00:09:36] Speaker 02:
And if it didn't, the analysis stops there.

[00:09:39] Speaker 02:
Because at that point, any earlier evidence is immaterial because it can't lead to an earlier effective date.

[00:09:45] Speaker 02:
It would be illogical to continue reviewing records before that date under Gastone.

[00:09:53] Speaker 02:
That's how we get to that the board has not considered any of this previous evidence.

[00:10:05] Speaker 05:
Anything further?

[00:10:07] Speaker 02:
So the Veterans Court caught the board's error, but it didn't fix the consequences of that error.

[00:10:12] Speaker 02:
The result was Mr. Laird didn't get the benefit of a full evidence review, and he lost his right to have one appeal to the board about his initial rating decision under 38 USC 7104A.

[00:10:23] Speaker 02:
We're asking this court to vacate the Veterans Court decision, remind the Veterans Court it can find facts in the first instance, and to remand to the board to review all of the evidence of record.

[00:10:34] Speaker 05:
We will save the remainder of your time if you wish for rebuttal.

[00:10:38] Speaker 01:
Thank you.

[00:10:40] Speaker 05:
Ms.

[00:10:41] Speaker 05:
Koenig.

[00:10:52] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:10:54] Speaker 00:
The question before this court is whether the Veterans Court abused its discretion in concluding that there was harmless error here because Mr. Lehrer did not properly challenge the board's factual finding.

[00:11:11] Speaker 00:
The Veterans Court did not abuse its discretion in making that determination in concluding that Mr. Lehrer did not

[00:11:22] Speaker 00:
challenge the factual finding that Mr. Leah's entitlement arose as a result of the 2013 examination, and therefore that the earliest effective date would have been October of 2013, although they gave benefits for one year prior to that.

[00:11:39] Speaker 00:
Here in this court.

[00:11:43] Speaker 03:
He challenged that he had filed, in fact, a notice of disagreement, but never challenged the findings of the board below.

[00:11:52] Speaker 03:
other findings, including when the entitlement was.

[00:11:55] Speaker 00:
That's correct.

[00:11:56] Speaker 00:
Mr. Laird challenged the nature of the claim, whether it was a notice of disagreement or a supplemental claim, but did not explain what the results of that or what the remedy for that should be or what the consequences of that might be.

[00:12:14] Speaker 00:
He did not raise, actually challenge, the factual determination that the board made.

[00:12:19] Speaker 00:
And the Veterans Court,

[00:12:20] Speaker 00:
looked to the arguments that Mr. Laird made and concluded that the contentions regarding the 2011 examination were not made in the initial briefing and that his argument, the promotion for reconsideration, relies entirely on legal arguments that were not presented before the Veterans Court in the first instance.

[00:12:41] Speaker 03:
And that's a question of application of law to fact?

[00:12:43] Speaker 00:
That's correct, Your Honor, and it's the failure of

[00:12:47] Speaker 00:
Mr. Laird to challenge that factual finding that leads the Veterans Court to find harmless error.

[00:12:55] Speaker 00:
The Veterans Court's not doing fact finding in itself.

[00:12:58] Speaker 00:
It's simply standing on the board's factual finding that Mr. Laird did not challenge.

[00:13:05] Speaker 00:
And that's well within this court's precedent to conclude that that is an application of law to fact.

[00:13:17] Speaker 00:
is stated in all of the case law in our brief.

[00:13:22] Speaker 00:
And I think it's telling that Mr. Laird in his opening brief explains, I think it's page 16, that this might have mattered because

[00:13:45] Speaker 00:
because he might have been entitled to a 30% rating.

[00:13:49] Speaker 00:
The consequence of Mr. Laird possibly being entitled to a 30% rating was something that was not raised in the brief to the Veterans Court.

[00:14:02] Speaker 00:
And so again, the Veterans Court here just simply did not abuse its discretion, making it our harmless error analysis.

[00:14:15] Speaker 05:
And that's a question of law or fact for us.

[00:14:21] Speaker 00:
Correct, Your Honor.

[00:14:22] Speaker 00:
For this court, that is squarely an application of law or fact that this court does not have jurisdiction to address.

[00:14:30] Speaker 00:
So unless Your Honors have further questions, we would stand on our briefs and ask the court to dismiss the appeal for lack of jurisdiction or otherwise affirm.

[00:14:39] Speaker 05:
Thank you, Counsel.

[00:14:40] Speaker 00:
Thank you, Your Honors.

[00:14:43] Speaker 05:
Ms.

[00:14:44] Speaker 05:
Malinowski has a bottle of time if you need it.

[00:14:48] Speaker 02:
Thank you.

[00:14:50] Speaker 02:
So the theft finding in this case, it was a product of a legal error, the foundational legal error of what the record review was.

[00:14:59] Speaker 02:
To the issue that he didn't raise this evidence review to the Veterans Court, he didn't have to ask the Veterans Court to use the right legal framework.

[00:15:10] Speaker 02:
The law requires a legal framework to change, and the Veterans Court has to apply the law.

[00:15:17] Speaker 02:
38 USC 72610A says the Veterans Court shall set aside decisions that are not in accordance with law.

[00:15:27] Speaker 02:
To one of the questions Judge Schall that you asked earlier, what about these prior board decisions?

[00:15:33] Speaker 02:
that had talked about the 2011 exam.

[00:15:36] Speaker 02:
7104A requires a de novo review.

[00:15:40] Speaker 02:
The board will conduct a de novo review.

[00:15:42] Speaker 02:
So whatever the prior board said about these exams,

[00:15:47] Speaker 02:
It still needs to be reviewed de novo by the board in this instance.

[00:15:51] Speaker 04:
One sort of housekeeping question.

[00:15:53] Speaker 04:
There are references in all those exams and statements referred to a 2010 exam.

[00:16:00] Speaker 04:
I think the parties agree that was an error.

[00:16:02] Speaker 04:
They were actually references to the 2011 exam, correct?

[00:16:06] Speaker 01:
Well, we don't know.

[00:16:08] Speaker 01:
We don't know.

[00:16:10] Speaker 04:
Because there's no 2010 exam on the record.

[00:16:13] Speaker 01:
We don't know what was in front of it.

[00:16:16] Speaker 04:
OK.

[00:16:20] Speaker 02:
And in any event, even if the 2013 exam was talking about the 2011 exam, the 2013 exam said his symptoms increased from the 2010 exam.

[00:16:33] Speaker 02:
But it didn't say it increased from what baseline.

[00:16:36] Speaker 02:
The 2013 exam doesn't say anything about where he started from in 2010.

[00:16:43] Speaker 02:
And finally, I would just reiterate that the board-sided Gaston V. Shinseki

[00:16:48] Speaker 02:
Because it's cited Gaston v. Shinseki, we know that the board didn't review his 2011 exam.

[00:16:53] Speaker 02:
Under Gaston, when you're looking at an increased claim, the first thing the board does is look at the 12 months before the claim for increase.

[00:17:03] Speaker 02:
If there's no increase within that 12 months period, then the analysis stops there, because there's no way that any evidence prior to that period is going to get an earlier effective date.

[00:17:13] Speaker 02:
So simply that the board told us they've conducted this limited review under Gaston tells us that they have not evaluated the 2011 exam.

[00:17:25] Speaker 02:
And unless there are any further questions.

[00:17:28] Speaker 05:
Thank you to both counsel.

[00:17:29] Speaker 05:
The case is submitted.