[00:00:00] Speaker 03:
for argument is 25-1107, Lyman v. Collins. Good morning. Did you pronounce your client's name correctly?

[00:00:12] Speaker 00:
Limon, Your Honor.

[00:00:16] Speaker 00:
Thank you. And may it please the Court, Kenny DeHocas for Mr. Limon. On behalf of Mr. Limon, I want to thank this Court for the opportunity to present his appeal. This appeal asks the Court to again consider How 38 CFR 3.156B affects the finality of a claim. The dispositive facts are not in dispute.

[00:00:34] Speaker 02:
VA issued a decision... Can we talk about finality?

[00:00:36] Speaker 00:
We can, Your Honor.

[00:00:38] Speaker 02:
So... At grade brief page 4, you say, quote, if Mr. Limon agrees to the... Mr. Limon agrees to the extent that if a subsequent appeal is available, this court lacks jurisdiction, end quote.

[00:00:54] Speaker 02:
So that's telling me that if we believe that there's a subsequent appeal available on the 2006 date, then we should dismiss this appeal.

[00:01:09] Speaker 00:
Absolutely, Your Honor.

[00:01:10] Speaker 03:
And that's what the government said is the circumstance here.

[00:01:14] Speaker 00:
That's what they argue, Your Honor, yes. I will, again, as that statement says, we are unclear still, even under this court's precedent or Williams and subsequent cases, whether he must appeal this determination now or whether he must wait for the remand proceedings. There is other case law, Tyrus to be, which is probably the most glaring, where if the veteran does not appeal, and he should have, then he loses the right to assert his benefits.

[00:01:43] Speaker 03:
Was that in the circumstances of this case, where the case is still alive? I mean, the CABC split it, and it remanded part of it, but that doesn't mean that the rest of it just disappears from the face of the earth. That still remains, the 2006-2007 issue, still remains as part of the case, correct?

[00:02:03] Speaker 00:
Well, we don't believe so, Your Honor. And again, I think that's why we filed this appeal to get guidance from this court whether that is or is not the case. Like in Tyrooze, there was a claim that was denied for a specific disability. They denied one disability. legal part of it under one legal theory. The other legal theory was remanded, and this court held that you must assert your appeal at that point on the denied portion of it. And as we've argued in our brief, there are two separate time periods that are at issue here.

[00:02:35] Speaker 00:
There's a 2006 to 2011 time period.

[00:02:38] Speaker 02:
What is the name of the case you're referring to?

[00:02:41] Speaker 00:
Tyroo's... Is that in your brief? It is not, Your Honor, and I do apologize. Is it a precedential of our court? Yes, Your Honor. Could you spell it?

[00:02:53] Speaker 00:
T-Y-R-U-E-S, I believe.

[00:02:56] Speaker 03:
And the issues were the same here? Does it play on this case?

[00:03:01] Speaker 00:
Well, we didn't cite it, Your Honor, because it's not directly on point.

[00:03:05] Speaker 00:
Tyrooze was a case where there was a specific claim that was adjudicated by the board, the Veterans Court remanded, and the facts are not, these are generalized, but the Veterans Court remanded under one legal theory, say, direct service connection, and denied on another, say, presumptive service connection. And this court held that he must present his appeal on the denied portion, and even though the remanded portion was sent back to the VA.

[00:03:35] Speaker 00:
And so that's how we looked at this case.

[00:03:37] Speaker 02:
Can you give us the citation to this so-called non-cited case to us?

[00:03:44] Speaker 02:
I can, Your Honor. And what's the spelling again? T-Y-R-U-E-S.

[00:03:47] Speaker 00:
E-S.

[00:04:16] Speaker 03:
Well, maybe you can come up with it after.

[00:04:18] Speaker 00:
I can, Your Honor. I can certainly look for it after.

[00:04:21] Speaker 03:
Well, I hate to speak about the case, which I don't know what it's about.

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

[00:04:26] Speaker 03:
But it seems to me that even as you've described it generally, it seems a bit different than the facts here. Here you had two separate claims. They're somewhat intertwined.

[00:04:38] Speaker 03:
And...

[00:04:39] Speaker 03:
your position rests on the fact that he would not be able to, if it goes back on remand, and let's assume, hypothetically, the board says no on the 2013 effective date, the CAVC says no on the effective date, that you can't press the 2006 piece of it as well?

[00:04:56] Speaker 00:
Not at the Veterans Court, Your Honor, but certainly, well, if the Veterans Court affirms the 2013 and says... Yeah, they've already decided the 2006.

[00:05:06] Speaker 00:
Right. The 2006 has already been decided.

[00:05:08] Speaker 03:
That doesn't mean it's not in this case. It's not part of any final judgment issued by the CABC because all you've got is a remand now. The case is still alive, right?

[00:05:19] Speaker 00:
Um...

[00:05:21] Speaker 00:
Right now, as we understand the Veterans Court ruling, the 2011 claim is alive. The 2006 claim has been finally adjudicated as final and not appealed, and so that's why we think that we should have filed this appeal now.

[00:05:39] Speaker 03:
All right. Well, are you satisfied if the government says no, it's you, it's not an argument, it's a position, that this case will be subject to adjudication later on? I mean, are you just trying to...

[00:05:54] Speaker 00:
Yes, Your Honor. I'm trying to protect Mr. Limon. Now, regardless of what the Secretary says, the Veterans Court's jurisdiction, this Court's jurisdiction cannot be asserted by his position that the Board cannot review the 2006 issue.

[00:06:11] Speaker 00:
If this court does find that we have to wait until the Veterans Court addresses it again, then we're perfectly happy with that.

[00:06:21] Speaker 03:
But again, this appeal was... In addition to that, the issues are kind of intertwined.

[00:06:26] Speaker 03:
Arguably, right. I mean, the 2013 and the 2006, it's about what came in on the 2006. I mean, there is some theory in which you could need to look at both, right?

[00:06:39] Speaker 00:
I don't believe so, Your Honor. The only thing that makes them – that they have in common is that they're both trying to get benefits for Maneri's condition, which, by the way, he's already service-connected for. He's already getting benefits for. The reason why they're distinct is because the ruling on the 2006 claim was an application of 3.156B or a misinterpretation of that regulation that by finding new and material evidence was presented, that that finalizes and closes that claim.

[00:07:09] Speaker 00:
And that's not what Deal said. Deal v. Collins, which we did cite in our reply brief, which came out after the Secretary's brief was filed – That case, although it was dealing with a situation where the veteran did not present new and material evidence, deal held that by not presenting new and material evidence, that prior claim is now closed because there's nothing to do with that evidence. But it did say a different situation may be available, which is here when new and material evidence is presented.

[00:07:42] Speaker 00:
And so the Veterans Court held Appendix 5 that the claim was Reopened the appellant's claim in 2013. New and material evidence isn't necessary for a reopened claim. And so that's the legal determination that we're challenging. We're happy to wait if this court finds that we should. But to protect Mr. Limon, we filed this appeal.

[00:08:05] Speaker 01:
If there are no other questions. I think implicit what you're arguing is you agree. You didn't cite any cases in your briefing that would say that there's something that can happen in the further development of this case that would moot the issue of the 2006 effective date that you're asking us to review today. There may be this Ty Rue's case. You all can't collude to expand our jurisdiction. I get all that. But there's nothing in your brief that would support an argument that if you don't get the review today, it'll never be available.

[00:08:42] Speaker 00:
Other than Williams, Your Honor, which is the primary – which I think is the controlling case law, Williams does say that we can present these issues and that this court does have jurisdiction over them.

[00:08:54] Speaker 01:
But Williams says you have to meet all three of those prongs of Williams, and my question really goes to prong three, which is what we've been talking about, and I just don't see – Any argument? I haven't read the case you've cited today, but based on the cases in the briefing, I haven't seen anything that says this issue of the 2006 effective date will become moot or could become moot on remand.

[00:09:21] Speaker 00:
Well, it certainly could become moot, Your Honor. Obviously, if the Board denies the remanded issue and finds against him, then it would become moot. I'm not following that.

[00:09:31] Speaker 03:
Just because the CAVC has rejected that and it's not remanded it, the case isn't over.

[00:09:43] Speaker 00:
And again, Your Honor, that is an outcome that Mr. Limon would welcome. He wants to present this legal issue to this court. But again, we think that because there were two separate... periods of time here, which are different, which are distinct, the 2006 to 2011, which the Veterans Court foreclosed, and then the 2011 going forward to the current effective date issue, which they remanded. And so, again, we're here to assert or determine whether we should present this now or if he should wait until the board is done with their adjudication of the remand.

[00:10:39] Speaker 04:
Good morning. May it please the court. I am not, I will confess I'm not familiar with the Tyreus case. It looks to me like the citation is 732 F3rd, 1351. That's 732 F3rd, 1351.

[00:10:51] Speaker 03:
That's a pretty old case.

[00:10:54] Speaker 04:
Yes, it is. And as we've discussed, it wasn't cited in any of the briefs, so I can't tie it into this case today. I'm happy to do something if the court believes that that's appropriate.

[00:11:06] Speaker 03:
Do you disagree with any of the observations?

[00:11:13] Speaker 04:
No, Your Honor. I think if we go particularly to the third Williams factor of danger of mootness during the remand, that's not a danger here. And so for that reason, we've cited the Joyce case and its point that where issues are inextricably intertwined, As here, where there's the same underlying injury, claimed injury, that is a situation where this court under the... Are the issues inextricably intertwined?

[00:11:43] Speaker 03:
I mean, can't we think of them completely separate in terms of the facts and the law that applies to each?

[00:11:50] Speaker 04:
Well, I think what Joyce says is that they're inextricably intertwined because it's the same underlying injury. And so that...

[00:11:58] Speaker 04:
to me, means that there's... I understand Your Honor's point insofar as there may be different evidence on effective date applicable to the two claims, the 2006 and the 2011. But ultimately, what we're trying to understand is the correct effective date for the Meniere syndrome. And so that all is tied together, and that is, to me, what Joyce stands for and why this court should stay its hand for now under Williams and address these issues immediately. on a full appeal, recognizing my friend's concern that, well, is now the right time or is now not the right time?

[00:12:35] Speaker 04:
The position we're taking here is that when it comes back, if it comes back after remand, at that point the court would be positioned to review both the Veterans Court decision with respect to the 2006 claim and also with respect to the 2011 claim.

[00:12:54] Speaker 01:
I don't know if we're going to have to consider factor one under Williams, but you seem to dispute that. But as I understand the argument, it's that the board and the Veterans Court misinterpreted 3.156B in...

[00:13:15] Speaker 01:
maybe allowing very little to be done in order to show that the new material evidence was considered. And it's analogous to, I think, our cases at Hampton and the recent case of Deal, where we've said those interpretive-type questions are questions of law that would satisfy Williams' prompt one. What's your response?

[00:13:38] Speaker 04:
Yes, Your Honor. I do agree that Deal and Hampton do provide support for that position. Our point in the red brief was focusing on sort of the way in which jurisdiction is found, not under Williams, but rather under this more typical question of whether there's an issue of legal interpretation. I do understand your point. And I think that the third William's factor is where this Court's focus should be in terms of whether or not the Court should act now or wait.

[00:14:11] Speaker 01:
If we wait, the government is reserving the right, I suppose, to argue at that time we lacked jurisdiction based on a different idea that this is really just a dispute over application of law and effect.

[00:14:23] Speaker 04:
That's right, Your Honor, and that would arise under typical principles as it would in any situation where this Court is reviewing a judgment of the Veterans Court.

[00:14:31] Speaker 03:
But the government is foreclosed from arguing, however many years from now, that he needed to have appealed the 2006 case immediately.

[00:14:41] Speaker 04:
Right. I mean, the position we're taking here is that this is not the right time, and there must be a right time. And so, yes, Your Honor, I agree with that.

[00:14:50] Speaker 03:
Thank you. Thank you.

[00:14:57] Speaker 00:
Thank you, Your Honor. Just two points. That is the Tyrus case that I was referring to.

[00:15:02] Speaker 03:
That's not a new case. It's not, Your Honor.

[00:15:04] Speaker 00:
Did Tyrus talk about Williams? It did not, Your Honor.

[00:15:12] Speaker 02:
Maybe because the Williams factors weren't relevant.

[00:15:16] Speaker 00:
Perhaps, Your Honor. But again, that goes to our position that these are two separate issues that had to have been appealed separately and remain distinct from each other. And the last point that I'll make is under Joyce, they found that it was inextricably intertwined because addressing one would disrupt the orderly process of the adjudication on the remanded issue, and that case relied heavily on Elkins, and Elkins really explained that interpretation of a statute or regulation would preclude where the veterans and Veterans Court's interpretation of a statute or regulation would preclude an award of benefits on a particular claim.

[00:15:58] Speaker 00:
A veteran might otherwise have to wait years before all of his or her claims are fully adjudicated. Resolution at this stage would actually enhance the benefits adjudication of the claim as opposed to disrupting it. The primary hold in Elkins was just that, that sometimes you don't have to wait because it does not disrupt the remand proceedings.

[00:16:24] Speaker 03:
Just for clarity, is there anything going on at this stage? The case was remanded like a year ago.

[00:16:30] Speaker 00:
Nothing yet, Your Honor, no.

[00:16:32] Speaker 03:
Thank you. Thank both sides. Case is submitted.