[00:00:00] Speaker 02:
Our next argued appeal is docket number 24-1386, Young v. Collins.

[00:00:07] Speaker 02:
Mr. Dohaquez, whenever you're ready.

[00:00:34] Speaker 04:
Thank you, Your Honor.

[00:00:34] Speaker 04:
May it please the Court?

[00:00:35] Speaker 04:
On behalf of Mr. Young, I want to thank this Court for the opportunity to present this appeal.

[00:00:40] Speaker 04:
This appeal asks the Court to determine whether the VA may lawfully apply 5109A or 3.105A to a decision before establishing the finality of the decision under attack.

[00:00:51] Speaker 04:
In all cases, the board must make a finding of fact or law that the challenge decision is final before it can proceed to cue.

[00:00:59] Speaker 04:
This is not in dispute.

[00:01:02] Speaker 04:
Mr. Young asked this court to find that a final decision is jurisdictional to a cue determination, and VA must establish that it is final before it can properly apply a cue.

[00:01:12] Speaker 04:
Mr. Young does not ask this court to

[00:01:15] Speaker 04:
find that the board must always exhaust every single possible non-finality before moving towards Q, but rather when it's raised at any time in the proceeding, including at the Veterans Court, that that issue is available for review and the Veterans Court must consider that?

[00:01:34] Speaker 00:
I have a problem up front.

[00:01:38] Speaker 00:
The CAVC opinion is clear, I think, that the court refused to decide this finality issue.

[00:01:47] Speaker 00:
They applied exhaustion.

[00:01:49] Speaker 04:
They did, Your Honor.

[00:01:50] Speaker 00:
They said, we're not going to decide that.

[00:01:51] Speaker 00:
And then it was amusing, if you will, dictum talking about they didn't think much of the argument.

[00:01:58] Speaker 00:
But they said, we're not deciding that issue.

[00:02:01] Speaker 00:
Your appeal presumes, I think, that the CAVC actually decided the issue incorrectly.

[00:02:08] Speaker 00:
And you're appealing as a question of law under our jurisdiction that incorrect legal interpretation.

[00:02:16] Speaker 00:
But there hasn't been a decision.

[00:02:19] Speaker 00:
The only decision on that issue was that you failed to exhaust.

[00:02:23] Speaker 00:
Therefore, the CABC would not write an opinion dealing with that topic.

[00:02:30] Speaker 00:
So the only legal decisions coming out of that

[00:02:38] Speaker 00:
the opinion or the first one which nobody doubts that the case goes back for that reason and the second one is that you have exhaustion prevented the CAVC from even deciding your argument.

[00:02:54] Speaker 00:
So there's there's at least two... I realize the government didn't make this argument in its brief.

[00:03:01] Speaker 00:
It also assumed that the CAVC's dicta is a holding

[00:03:08] Speaker 00:
And I have a problem.

[00:03:10] Speaker 00:
I can't find a legal issue on this point you're talking about for us to deal with.

[00:03:17] Speaker 00:
And as I read your reply brief, if that issue is not here, the appeal's over.

[00:03:25] Speaker 00:
You don't have any other challenge, because your exhaustion challenge is mixed up in, entirely mixed up in your view that the CAVC decided the finality issue decided incorrectly.

[00:03:39] Speaker 00:
So the conclusion... Where's the final decision?

[00:03:43] Speaker 00:
Where's the actual holding in the opinion below?

[00:03:49] Speaker 04:
On page 8 of the appendix, Your Honor, the very last sentence, the portion of the decision... Page 8?

[00:03:57] Speaker 04:
Yes, Your Honor, the portion of decision, the board's decision denying

[00:04:01] Speaker 04:
on non-queue, the effective date is affirmed.

[00:04:04] Speaker 00:
And so the determination affirmed the... That's affirmed because your argument challenging that was not reached.

[00:04:14] Speaker 04:
That's correct, Your Honor, but this Court does have jurisdiction to address issues that were passed over by the Veterans Court and it also... Excuse me?

[00:04:23] Speaker 00:
What was passed over?

[00:04:25] Speaker 00:
Where's the holding?

[00:04:26] Speaker 00:
Your argument is that the CBC made a holding

[00:04:31] Speaker 00:
directly on your point that the BBA does not have a legal obligation in every Q case to establish finality?

[00:04:40] Speaker 00:
Well, it... It expressly refused to greet that argument.

[00:04:45] Speaker 04:
It did, Your Honor, but it did so erroneously because as a jury... So where did it hold?

[00:04:50] Speaker 00:
Where is the holding that you're appealing?

[00:04:53] Speaker 04:
The holding on the finality issue, Your Honor, is again, I think that they affirmed the earlier or the...

[00:05:04] Speaker 00:
They affirmed the BVA effective date because the BVA effective date didn't consider your finality argument, and they didn't have to because you didn't raise it.

[00:05:14] Speaker 00:
So there was no other challenge to the BVA finality ruling.

[00:05:18] Speaker 00:
Your only challenge to the BVA finality ruling was that they failed to establish their authority.

[00:05:26] Speaker 04:
Well, the board did make the specific finding.

[00:05:29] Speaker 00:
The way the opinion is structured

[00:05:33] Speaker 00:
It takes your argument and says, wait a second.

[00:05:35] Speaker 00:
When we get to this effective date, finality issue, we're going to decide whether or not you've exhausted.

[00:05:44] Speaker 04:
Well, but our position, Your Honor.

[00:05:46] Speaker 00:
Right.

[00:05:46] Speaker 00:
And so I just don't see it, Mr. Dolaquist.

[00:05:49] Speaker 04:
So our position, Your Honor, is that they have no discretion to refuse to consider it because it is jurisdictional.

[00:05:56] Speaker 00:
It's jurisdictional to the board to have- That presumes you're right on the merits issue.

[00:06:03] Speaker 04:
wrong on the merits well if if we're wrong on the merits issue if this court has been no decision on the merits issue if there's

[00:06:12] Speaker 04:
I'm sorry, I think we're speaking across each other.

[00:06:15] Speaker 04:
If this court finds that the final decision is not jurisdictional to addressing CUE at the board, then yes, we agree that the court should either dismiss or affirm the Veterans Court's decision.

[00:06:32] Speaker 00:
I just don't get it.

[00:06:34] Speaker 00:
You're raising a legal argument here.

[00:06:38] Speaker 00:
CAVC made a terrible mistake.

[00:06:41] Speaker 00:
It listened to my argument, and it decided against me.

[00:06:44] Speaker 00:
And it said, no, the BVA does not have to establish finality.

[00:06:48] Speaker 00:
And you're challenging this.

[00:06:50] Speaker 00:
And there's nothing I see in that opinion that is the holding that you're challenging.

[00:06:55] Speaker 00:
So what the Veterans Court did... There's a perfect explanation for why it affirmed the effective date from the board order, because absent your legal argument, there's nothing wrong with the board order.

[00:07:07] Speaker 04:
So there is, Your Honor, and I understand now more clearly what your question is going towards.

[00:07:15] Speaker 04:
The Veterans Court took jurisdiction over a CUE where there was none.

[00:07:18] Speaker 04:
And so when the board exceeds its jurisdiction and the court also does that... No, no, no.

[00:07:26] Speaker 00:
You're not talking about the first round.

[00:07:27] Speaker 00:
We all agree on the remand.

[00:07:30] Speaker 00:
well if there was no jurisdiction in the first place your honor there's no legal basis for doing what the board doesn't have an obligation that you want to impose on it to in a Q case to review for finality and everything they'll have that obligation and that's not jurisdictional well that's

[00:07:46] Speaker 04:
Well, they do, Your Honor, and they often do.

[00:07:49] Speaker 04:
The final decision is a predicate to see you.

[00:07:52] Speaker 00:
I'm using up too much.

[00:07:54] Speaker 00:
I understand, Your Honor.

[00:07:55] Speaker 00:
Finally got my point.

[00:07:56] Speaker 04:
I understand your point, Your Honor.

[00:07:57] Speaker 04:
And that's really, and that's our point, is that the final decision is a predicate to any application of this statute or the regulation.

[00:08:08] Speaker 04:
And the cases we cited, starting with George, this court, in a different... Let me ask you this.

[00:08:14] Speaker 03:
Yes, Your Honor.

[00:08:14] Speaker 03:
that every time a Q challenge to a final decision is filed, that there is an inherent challenge that that decision is not final and adjudicated?

[00:08:31] Speaker 03:
Not at all, Your Honor.

[00:08:31] Speaker 03:
And then what's the point of your argument?

[00:08:33] Speaker 03:
So the point of the argument seems to be that if the board

[00:08:38] Speaker 03:
What's the result if the board looks at this, or the RO, whoever the QTAC is properly raised to, looks at it and says, oh, this is not a final decision?

[00:08:49] Speaker 03:
So it's not a Q challenge.

[00:08:50] Speaker 04:
Then what?

[00:08:51] Speaker 04:
They just dismiss it, right?

[00:08:53] Speaker 04:
Then exactly, Your Honor.

[00:08:54] Speaker 04:
And that's our point.

[00:08:55] Speaker 04:
And the secretary in their brief, footnote four, laying from this court all said the same thing.

[00:09:03] Speaker 04:
If there is no final decision, there cannot be Q. And the proper result is that you dismiss it and then proceed to adjudicate whatever is left pending.

[00:09:13] Speaker 04:
And so if the veteran... Oh, no.

[00:09:15] Speaker 03:
What do you mean without refiling anything?

[00:09:18] Speaker 03:
Because then you're saying exactly what I said, which is every Q claim has an inherent claim of non-finality in it.

[00:09:25] Speaker 03:
If that's what you're saying, that's just crazy.

[00:09:28] Speaker 03:
There's no basis whatsoever in the Q statutes for that.

[00:09:30] Speaker 04:
No, Your Honor.

[00:09:31] Speaker 03:
But it sounds to me, I'll let you finish, but let me.

[00:09:34] Speaker 03:
Are you saying, if they look at this and they say, this is not final, then they directly go on and say, well, this is not final, so we're going to look at whether this establishes an earlier effective date?

[00:09:46] Speaker 03:
Or do you have to, because it's not final, the Q challenge is dismissed and you're free to re-raise another challenge to?

[00:09:55] Speaker 03:
Say that the earlier effective date is wrong because there's an unadjudicated claim out there So does it happen in the same proceeding where you all you've done is challenge Q or the two separate?

[00:10:08] Speaker 04:
It depends on where it happens obviously at the board if the board finds that that there was a pending claim it would order the regional office to issue a decision that can then be appealed and

[00:10:16] Speaker 04:
If the regional office is looking at it and they discover a pending claim, they would just adjudicate that pending claim because that claim had already been filed.

[00:10:25] Speaker 03:
So it sounds to me you're actually saying what you said you weren't saying, which is every Q challenge contains an implicit challenge that the decision being attacked is non-final and should be looked at again to determine effective date.

[00:10:37] Speaker 04:
not an implicit challenge your honor but it and I understand the semantics but I do think it's an important distinction is that it's not an it's not a challenge to the finality.

[00:10:47] Speaker 03:
You have to be raised with specificity they do what you're now saying is even though they're raised with specificity there's this inherent

[00:10:56] Speaker 03:
implicit, unsaid challenge that's somehow piggybacking on a Q claim, even though it's not anywhere in the Q claim, nor could it have been raised with the Q claim.

[00:11:08] Speaker 04:
But it's not unsaid, Your Honor.

[00:11:09] Speaker 04:
The regulation very clearly says.

[00:11:11] Speaker 03:
Yes, it is.

[00:11:12] Speaker 03:
If you want to challenge a decision as not being final and providing a basis for an earlier effective date, how do you do it?

[00:11:19] Speaker 04:
It's not with the Q claim, right?

[00:11:25] Speaker 04:
You typically would not, Your Honor.

[00:11:26] Speaker 04:
But what this case does is it recognizes that the regulation requires, and all the case law interpreting this, all the way up to the Supreme Court, that a cue only lies in a final decision.

[00:11:38] Speaker 04:
And so if the decision is not final, then there's no legal authority to address, to apply this statute, to apply this regulation.

[00:11:46] Speaker 04:
And that's why we think it's the first picture.

[00:11:47] Speaker 03:
I mean, you'd be much on much former grounds if you had just answered.

[00:11:50] Speaker 03:
Sure, if it's non-final, then the Q claim gets dismissed, and then the veteran can choose to do what with that he or she wants.

[00:11:58] Speaker 03:
But if you're saying that then the board or the RO has the obligation as part of that Q action to create a new action... I see your point, Dr. Yes, as part of the Q action, there's no further obligation.

[00:12:12] Speaker 03:
Once it's been dismissed...

[00:12:14] Speaker 03:
basically telling me practically this is what's going to happen even if you put it in different words.

[00:12:21] Speaker 03:
Let me go back to Judge Clemner's question.

[00:12:22] Speaker 03:
If we read the court's decision as refusing to address this finality argument, and it pretty clearly says it does, how do we have jurisdiction?

[00:12:31] Speaker 03:
We only have jurisdiction over

[00:12:35] Speaker 03:
legal issues that were raised or relied on by the Veterans Court.

[00:12:39] Speaker 03:
And if they explicitly said they weren't reaching it, then they weren't relying on it.

[00:12:45] Speaker 04:
So the legal rule, Your Honor, is that they don't have to do it.

[00:12:48] Speaker 04:
And so because it's a jurisdictional question, it can be raised at any time.

[00:12:54] Speaker 04:
by the court, by any party, including even at this court or the Supreme Court.

[00:12:58] Speaker 04:
And so if it's a jurisdictional mandate, then it can be raised any time, and the court has to address it and has to establish whether or not there was jurisdiction in the very first place.

[00:13:10] Speaker 04:
And that's, you know, we decided this court's case law supports that.

[00:13:14] Speaker 03:
So in every Q case going forward, from now through the end of time, even if it hasn't been addressed, at the RO, the board, or the Veterans Court,

[00:13:22] Speaker 03:
You can come in here and say, oh, this really is an acute claim because that's not a final decision.

[00:13:27] Speaker 03:
And since it's jurisdictional, we can raise it to you, the second appellate court, for the first time.

[00:13:33] Speaker 04:
Yes, Your Honor, unfortunately.

[00:13:35] Speaker 04:
But again, that's the way that the regulation is written.

[00:13:38] Speaker 04:
That's what the Secretary wanted when he wrote this regulation.

[00:13:41] Speaker 04:
And remember, this regulation precedes everything.

[00:13:45] Speaker 04:
It's very clear that it requires a final and binding decision.

[00:13:49] Speaker 04:
I see that I'm into my rebuttal time.

[00:13:51] Speaker 04:
So if there are no other questions, I'll reserve the remainder of it.

[00:13:54] Speaker 02:
OK, thank you.

[00:14:05] Speaker 01:
Good morning.

[00:14:05] Speaker 01:
May it please the court?

[00:14:07] Speaker 01:
I'll jump right into your question, Judge Clemenger.

[00:14:09] Speaker 01:
I'm happy to sign up to your view of things.

[00:14:12] Speaker 01:
I think that the way we framed our brief was in recognition of cases like Bozeman, where there was the Veterans Court invoking issue exhaustion, and the government came and argued to this court that there was no jurisdiction

[00:14:27] Speaker 01:
because that issue wasn't decided and this court decided that in fact what the Veterans Court had done was misinterpret issue exhaustion and the test because the issue in that case it had determined was a substantive issue that should not have been

[00:14:43] Speaker 01:
found to have not been exhausted.

[00:14:45] Speaker 01:
And so I think we were addressing the issue on the merits to make clear that there's no merit to it before we got to the question of whether or not issue exhaustion was properly invoked.

[00:14:56] Speaker 01:
But we fully agree this court should dismiss this appeal.

[00:15:00] Speaker 01:
because this court does not have jurisdiction to review the Veterans Court's application of issue exhaustion.

[00:15:07] Speaker 01:
I don't think that Mr. Young, in his brief, identifies any misstatement of the standard for issue exhaustion.

[00:15:14] Speaker 01:
He simply disagrees with the way it was applied here.

[00:15:20] Speaker 00:
What is it that you are now taking the position that there was no decision on the legal question that he's presenting to us?

[00:15:28] Speaker 01:
Sure, yes, Your Honor.

[00:15:29] Speaker 00:
And because there was no legal decision that they relied on below, then we don't have a jurisdiction to reach that.

[00:15:39] Speaker 00:
Now, my understanding was that if we reach that conclusion, Young was saying the case is over, that that wipes out his challenge to the holding that he had failed to exhaust.

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

[00:15:53] Speaker 01:
Yes, and I think we wanted to be extra clear to make sure that to the extent this court were to somehow decide that it was going to reach the question of whether or not any statute requires the VA or the board to undertake an audit for potential non-finality,

[00:16:11] Speaker 01:
that there was no statutory or regulatory basis for that.

[00:16:14] Speaker 01:
Because I think, as Judge Yu's question recognized, that would really destroy the unique nature of Q. It's supposed to be a specific and rare kind of error that's plagued with specificity.

[00:16:26] Speaker 01:
If there was this freestanding challenge to finality implicit.

[00:16:31] Speaker 00:
What do we do with Andrews?

[00:16:33] Speaker 00:
Doesn't Andrews say that in a counsel Q case,

[00:16:40] Speaker 00:
The failure to raise at the BVA the point you're raising at the CBC is fatal.

[00:16:45] Speaker 01:
Yes, Your Honor.

[00:16:46] Speaker 01:
Agreed.

[00:16:46] Speaker 01:
And we cited that in our brief for that very proposition.

[00:16:49] Speaker 00:
I don't believe you cited it in your brief for that proposition.

[00:16:53] Speaker 00:
That surprised me.

[00:16:56] Speaker 00:
In fact, your brief didn't cite Andrews.

[00:17:00] Speaker 01:
You're right, Your Honor.

[00:17:00] Speaker 01:
And that is an oversight pass.

[00:17:03] Speaker 00:
But I agree, Your Honor.

[00:17:06] Speaker 00:
I mean, doesn't that end the argument?

[00:17:08] Speaker 01:
Yes.

[00:17:09] Speaker 01:
I mean, I think in recognition of that whole thing.

[00:17:12] Speaker 00:
Why isn't Judge Toth citing that?

[00:17:15] Speaker 01:
I agree.

[00:17:16] Speaker 01:
He certainly should have.

[00:17:18] Speaker 01:
I think what he was doing was he was going to the next step, which is even if we were somehow required to give a liberal construction to a Q motion filed by counsel, which you're right, Andrew says, is not, it wouldn't reach as far as Mr. Young is asking it to reach, because what he's really doing is stepping on Robinson, which says that even where a liberal construction is required, the- Robinson confirms, Andrew.

[00:17:44] Speaker 01:
Right, but the VA is not required to conceive of all possible bases for the veteran's claim.

[00:17:53] Speaker 01:
And so I think he was just simply going to that next step.

[00:17:55] Speaker 01:
But I agree with you, Your Honor, that he could have cited to Andrews, and that would have put an end to this question.

[00:18:03] Speaker 02:
If this was somehow a jurisdictional argument, then it would be appropriate to raise it at the Veterans Court level, wouldn't it?

[00:18:13] Speaker 01:
In theory, yes.

[00:18:14] Speaker 01:
But I think what Mr. Young is doing is a bit of sleight of hand.

[00:18:16] Speaker 01:
His opening sentence to you said that the Veterans Court had excused the board from determining whether or not the decision was final.

[00:18:25] Speaker 01:
That is not at all what the Veterans Court said.

[00:18:27] Speaker 01:
The board here at appendix 56 and 57 found that the 1972 and 76 decisions were final.

[00:18:35] Speaker 01:
And therefore, it could go on to adjudicate Q. What he's asking for is that if we're truly jurisdictional,

[00:18:41] Speaker 03:
then the Veterans Court wouldn't go any further.

[00:18:45] Speaker 03:
It would order the case dismissed.

[00:18:48] Speaker 01:
If the question of finality was jurisdictional?

[00:18:51] Speaker 01:
Yeah.

[00:18:51] Speaker 03:
It would just dismiss the Q case.

[00:18:54] Speaker 03:
It wouldn't go on and it wouldn't remand and it wouldn't order the RO, the board, to further look at this.

[00:19:00] Speaker 03:
It would dismiss.

[00:19:01] Speaker 03:
That's what happens when cases are jurisdictional.

[00:19:04] Speaker 03:
The action

[00:19:06] Speaker 03:
The court, the board, the RO, none of them had jurisdiction.

[00:19:10] Speaker 03:
It wipes it out.

[00:19:11] Speaker 03:
It doesn't create a new obligation to look at that decision.

[00:19:15] Speaker 03:
Right.

[00:19:16] Speaker 03:
I agree, Your Honor.

[00:19:17] Speaker 02:
But to reach that conclusion, the Veterans Court would have had to decide that, in fact, there was a rating decision that was not final.

[00:19:28] Speaker 01:
I think that's right.

[00:19:29] Speaker 01:
It could not just accept the allegation of non-finality.

[00:19:32] Speaker 01:
It would have had to go further.

[00:19:33] Speaker 02:
And I guess then you would... And so then I guess Mr. Dokas' argument is that this whole question of finality is something of a jurisdictional predicate to any and every Q claim.

[00:19:45] Speaker 01:
Well, he is, but that isn't really the issue because the court, the board found these decisions were final.

[00:19:51] Speaker 01:
There was no suggestion of non-finality.

[00:19:54] Speaker 01:
There was no suggestion that he hadn't received notice.

[00:19:57] Speaker 00:
There was no suggestion of any of the other hundred ways in which someone... When you say there was no suggestion that he hadn't received notice, I thought he said as to one, the 72, one of the R.O.

[00:20:08] Speaker 00:
actions, he said he didn't get the notice.

[00:20:10] Speaker 01:
But then he also said that that decision became final.

[00:20:14] Speaker 01:
And he also was bringing a cue claim, which is predicated on the decision being final.

[00:20:19] Speaker 01:
So it's not as if it's sort of a closely related legal theory that could get him to where he wanted to go.

[00:20:25] Speaker 01:
It was completely opposite to what he was telling the VA.

[00:20:29] Speaker 01:
He was saying to the VA, I have several final decisions.

[00:20:32] Speaker 01:
Right.

[00:20:33] Speaker 01:
So I don't understand the theory.

[00:20:35] Speaker 01:
I mean, as the Veterans Court noted, he could have made arguments in the alternative.

[00:20:39] Speaker 01:
He did not.

[00:20:40] Speaker 01:
So as the Veterans Court said, one stray comment that he didn't receive notice isn't sufficient to raise from an attorney.

[00:20:47] Speaker 00:
Well, the alternative argument would have been he said, this is final, but I may be wrong.

[00:20:50] Speaker 00:
It may not be final because there's this one at least incidence of lack of notice.

[00:20:55] Speaker 01:
He could have done that.

[00:20:56] Speaker 01:
But I do think it's important to note that, like with procedural issues, as this court discussed in Scott, it may have been a strategic decision not to press non-finality.

[00:21:05] Speaker 01:
And I actually think, stepping outside the record a little bit, it would have been here.

[00:21:09] Speaker 01:
Because he brought the same claim for the same disability many times.

[00:21:13] Speaker 01:
And in the 88 denial, he received that notice because he filed a notice of disagreement.

[00:21:18] Speaker 03:
Are you saying that

[00:21:19] Speaker 03:
if he had argued that this earlier one was non-final because of the lack of notice, that the finality would have been subsumed in later decisions.

[00:21:30] Speaker 03:
And so he couldn't have challenged it as a non-final decision because the same arguments had already been adjudicated.

[00:21:36] Speaker 03:
So his only real procedural path was Q.

[00:21:39] Speaker 01:
Right.

[00:21:39] Speaker 01:
And that's why I think the 2013 Q allegation did not make a non-finality argument.

[00:21:45] Speaker 01:
And I also think it explains why, before the Veterans Court, Mr. Young went from asking for the Veterans Court to remand the finality questions in his opening brief to, in his reply, asking the Veterans Court to simply order the board to give him a 1972 effective date, because he recognized that the later decisions extinguished any claim to the extent it had been unadjudicated and pending.

[00:22:10] Speaker 01:
Unless the court has any further questions, we would ask the court to dismiss or affirm an alternative.

[00:22:17] Speaker 01:
Thank you, Your Honor.

[00:22:26] Speaker 04:
Thank you.

[00:22:27] Speaker 04:
Thank you, Your Honor.

[00:22:30] Speaker 04:
Just to clarify with our response on what the actions are in a cue determination.

[00:22:38] Speaker 04:
The board determines it's final.

[00:22:40] Speaker 04:
They did that in this case.

[00:22:41] Speaker 04:
That was challenged at the Veterans Court.

[00:22:44] Speaker 04:
Once that's done, the cue action ceases and it's over.

[00:22:48] Speaker 04:
Either at that point, the normal rules apply and either the claimant can then request a decision or the VA under its statutory obligations to issue notice under 5104 would then

[00:22:58] Speaker 04:
Complete the claim if there's any duty to assist that still applies any additional laws and then they would issue notice with appeal rights and give the veteran the opportunity to file a direct appeal so the cube itself Stops once a decision is determined to not be final now when the board normally in the normal course why if if you're bringing a queue claim and

[00:23:22] Speaker 03:
Would you suggest that it's non-final?

[00:23:24] Speaker 03:
It almost smacks to me a bad faith when it's a lawyer doing it.

[00:23:27] Speaker 03:
Because a lawyer, when he or she files a QT, I'm not accusing you personally.

[00:23:32] Speaker 03:
I'm just saying hypothetically, if you are a lawyer and you bring in a Q talent, you understand that that has to be attacking a final decision.

[00:23:42] Speaker 03:
And so if you're doing that and not specifically raising

[00:23:47] Speaker 03:
an alternative argument, which maybe you can do, although there's probably some procedural hurdles of saying, but if it's not, then when you bring only a Q chain, why can't the VA take it based upon good faith that you're challenging a final decision?

[00:24:04] Speaker 04:
In part because, Your Honor, no party can waive jurisdiction.

[00:24:08] Speaker 04:
Let's set that aside.

[00:24:09] Speaker 04:
I understand you.

[00:24:10] Speaker 03:
No, no, no.

[00:24:11] Speaker 03:
Can you just stop a minute?

[00:24:12] Speaker 03:
I don't want to talk about jurisdiction because I don't think you're right about it being a jurisdictional in the sense that courts have Article III jurisdiction.

[00:24:20] Speaker 03:
I think it's about the authority of the agency.

[00:24:22] Speaker 03:
I think that's something far different than the way you're using jurisdiction.

[00:24:26] Speaker 03:
But why can't the RO or the board rely on the representation of an attorney for a veteran when he or she files a Q claim that they're attacking a final decision?

[00:24:42] Speaker 04:
So a couple reasons your honor one the law changes through the lives of these and sometimes New new case law comes out which would directly affect whether notice was provided And as you know, we've yes, but that's the case.

[00:24:55] Speaker 03:
You don't file a huge challenge You file some kind of other challenge that says there's a pending unadjudicated claim because I didn't get notice which affects my

[00:25:04] Speaker 04:
Effective and with respect to an attorney your honor.

[00:25:07] Speaker 04:
You know certainly when it gets to court often.

[00:25:10] Speaker 03:
This is attorneys, right?

[00:25:11] Speaker 03:
We're not talking about pros and stuff here and reading things and that was my comments honor this is and there was a switch in attorneys And maybe you would have done things differently than your predecessor, but you're bound by what he or she did

[00:25:23] Speaker 04:
Right, Your Honor.

[00:25:24] Speaker 04:
And that was my next point, is that this rule, and one of the reasons we brought this case was mostly to protect the pro se non-attorney represented veterans when they proceed thinking that this was a CUE.

[00:25:36] Speaker 03:
Well, you know we're not going to issue an advisory.

[00:25:38] Speaker 04:
I understand that, Your Honor.

[00:25:40] Speaker 04:
But if the ruling applies here, then certainly it would apply there.

[00:25:44] Speaker 04:
But again, we do think that it does apply across the board, and that without a final decision, there's no statutory authority.

[00:25:53] Speaker 04:
Andrews is wrong?

[00:25:55] Speaker 04:
No, Your Honor.

[00:25:56] Speaker 04:
Andrews is absolutely correct.

[00:25:57] Speaker 04:
But the reason Andrews doesn't apply is because before you get to the pleadings, there has to be a final decision.

[00:26:05] Speaker 00:
And so the pleadings have nothing to do... I thought Andrews just said in a Q case like this, where somebody's trying to... didn't make an argument in front of the BVA, wants to make an argument in front of the CABC, Andrews said it's fatal.

[00:26:17] Speaker 04:
In the CUE itself, Your Honor, not in the predicate finding of whether there's a final decision, such that the CUE statute applies.

[00:26:27] Speaker 04:
And so we don't even get to CUE if there's no final decision, and so Andrews... So you're trying to distinguish Andrews?

[00:26:33] Speaker 04:
Absolutely, Your Honor.

[00:26:34] Speaker 04:
And so Andrews applies when looking at whether there is... It's a little late, isn't it?

[00:26:38] Speaker 00:
Oral argument?

[00:26:40] Speaker 04:
Your Honor, I think our reply brief laid this out that... All of this, you can see all of this coming.

[00:26:47] Speaker 00:
Right?

[00:26:49] Speaker 04:
Your Honor, our briefing rests on this precise point that you can't get to CUE without a final decision.

[00:26:59] Speaker 04:
The only option, and if a final decision doesn't exist, is to dismiss the CUE.

[00:27:04] Speaker 04:
And so whatever Andrews requires in a motion is irrelevant to whether there is CUE in the first place.

[00:27:11] Speaker 04:
Thank you very much.

[00:27:12] Speaker 04:
Thank you, Your Honor.

[00:27:13] Speaker 04:
The case is submitted.