[00:00:00] Speaker 00: The next argued case is number 18, 2083, Archbold against the Secretary of VA, Ms. [00:00:07] Speaker 00: Booth. [00:00:08] Speaker 01: Thank you, Your Honor. [00:00:09] Speaker 01: If it please the Court, Sandra Booth, on behalf of Mr. Archbold. [00:00:14] Speaker 01: Finality did not attach to the August 1953 rating decision. [00:00:18] Speaker 01: That implicates the question of the meaning of the notice regulation at former [00:00:24] Speaker 01: 38 CFR 3.7. [00:00:27] Speaker 01: Relevant to this appeal are the meaning of the terms requirement of the notice of decision and reasons therefore and provisions. [00:00:38] Speaker 01: VA did not inform Mr. Archbold in its August 1953 letter of the decision on any particular claim. [00:00:46] Speaker 01: It told him only that his [00:00:48] Speaker 01: prior rating, a convalescent rating at 100%, which he knew was going to eventually be reduced, had been reduced to 20%. [00:00:57] Speaker 01: It did not identify any of the claims involved. [00:01:01] Speaker 01: It did not identify what rating had been assigned to any particular claim. [00:01:06] Speaker 01: In fact, VA had also service-connected him for two different disabilities, being the right and left thighs, where the thigh scars for [00:01:17] Speaker 01: donor sites for the skin grafts on his hands that notice did not notify him either that VA was no longer rating him or that just simply had dropped off the rating for his facial injuries, which he had been service-connected for. [00:01:40] Speaker 01: The issue then, I think, Your Honor, is what must the VA disclose to the veteran at the time it makes a decision. [00:01:48] Speaker 01: This is not an implicit denial case because there is no denial. [00:01:53] Speaker 01: Mr. Archbold, his claim was granted. [00:01:58] Speaker 01: The issue is whether or not notice of the decision and reasons for it and the additional language of provisions allows the agency to do no more than say, [00:02:10] Speaker 01: your overall rating will be reduced to 20% without informing him of the very essential issue of what claims are actually being rated, how that decision was reached. [00:02:26] Speaker 01: The canons of construction require giving meaning to every word and phrase in the regulation or statute. [00:02:33] Speaker 01: The phrase provisions, in our view, means at the very least [00:02:38] Speaker 01: the VA has to identify the particular claim that has been decided and that in a case where the issue is the rating, that it also must identify and disclose to the veteran the rating assigned to that particular claim. [00:02:56] Speaker 01: This court's recent decision in rule, I think, is very instructive and [00:03:01] Speaker 01: perhaps even authoritative on that question, rule construed a 1982 notice regulation that does not track word for word with 3.7. [00:03:14] Speaker 01: However, it contains the same essential elements and particularly notice of the decision and notice of the provisions of the decision. [00:03:24] Speaker 01: In that case, [00:03:25] Speaker 01: Although the court limited its holding in view of the fact that the Veterans Court said that there had been an explicit notice in that case, the court therefore did not go on to look whether or not this might be an implicit denial case. [00:03:47] Speaker 01: Arguably, it may have been, but nobody raised that, and the Veterans Court didn't rely on it. [00:03:55] Speaker 01: In that context, rule then construed what was required for notice to be explicit. [00:04:04] Speaker 01: And I would submit that notice is either implicit or explicit. [00:04:09] Speaker 01: And in this case, Mr. Archbold's notice was intended to be or should have been an explicit notice and rule held at the very least. [00:04:20] Speaker 01: At the very least, the VA must identify the claim. [00:04:27] Speaker 01: Because the VA did not provide an adequate notice and our view that finality did not attach to that rating decision, it should remain pending to this day. [00:04:40] Speaker 01: All of the subsequent adjudications with respect to CUE. [00:04:46] Speaker 01: are void because there is no final decision to revise. [00:04:52] Speaker 01: There's no final, CUE does not lie in that circumstance where there is not a final decision. [00:05:01] Speaker 01: The Veterans Court likewise in 1999 did not have jurisdiction to review the board's decision on CUE because that decision was void. [00:05:11] Speaker 01: There was no CUE because there was no final rating decision. [00:05:15] Speaker 01: and 7252A limits Veterans Court's jurisdiction to review of final board decisions. [00:05:26] Speaker 01: The question then is whether or not Mr. Archbold has a remedy, and the only potential remedy that he would have is recall of the judgment in the mandate of the 1999 CAVC decision and an order that the agency adjudications be set aside. [00:05:45] Speaker 01: As a general rule, we recognize that final judgments are generally not subject to collateral attack. [00:05:53] Speaker 01: That is a general rule, but it's not inflexible. [00:05:55] Speaker 01: It's not a complete bar. [00:05:58] Speaker 01: In this case, or in the Veterans Court rather, the Veterans Court itself has recalled judgments after the appeal time had expired because of lack of jurisdiction, and that's in the Snyder case that was cited. [00:06:11] Speaker 01: in the briefs. [00:06:12] Speaker 01: This court has reviewed abuse of discretion in the CAVC's denial of recall of the mandate in the Magic case. [00:06:26] Speaker 01: This court in Gonzales reviewed and affirmed the, I believe it was the FAA's [00:06:38] Speaker 01: modification of a prior final award because that award exceeded the scope of the waiver of sovereign immunity in that case. [00:06:51] Speaker 01: We think, Your Honor, that the appropriate test that balances the interests of finality with the interests of the integrity of the court, as well as fairness to the parties, is that which the Supreme Court discussed [00:07:08] Speaker 01: in United Student Aid funds. [00:07:11] Speaker 01: And that was a Rule 60B case, but 60B-4 regarding void judgments. [00:07:19] Speaker 01: And the court there said that recall of the mandate and the judgment for lack of jurisdiction ought to be limited to the [00:07:33] Speaker 01: exceptional basis of when the court lacked even an arguable basis for jurisdiction. [00:07:41] Speaker 01: This is that case. [00:07:42] Speaker 01: The Veterans Court in 1999 did not have an arguable basis for jurisdiction because of the void board decision, which relates back to the non-finality of the August 1953 rating decision. [00:08:04] Speaker 01: I will reserve the rest of my time unless the court has questions. [00:08:10] Speaker 00: Okay. [00:08:11] Speaker 01: Thank you. [00:08:16] Speaker 00: Thank you. [00:08:16] Speaker 02: Thank you. [00:08:17] Speaker 02: May it please the court. [00:08:19] Speaker 02: The Veterans Court correctly concluded that the doctrine of race judicata barred Mr. Archbold's claim of clear and unmistakable error or cue related to the application of diagnostic code 7801. [00:08:30] Speaker 02: Mr. Archbold seeks a second fight at the Apple renewing a Q claim decided in 1999 in another attempt to obtain an earlier effective date. [00:08:38] Speaker 02: Mr. Archbold's focus on the notice in the 1953 decision avoids the issue actually decided by the Veterans Court. [00:08:47] Speaker 02: The legal analysis of the Veterans Court in determining the question of race judicata correctly was correct. [00:08:56] Speaker 02: And it was based on facts. [00:08:58] Speaker 02: found by the Veterans Court, which the Court does not have jurisdiction to review. [00:09:02] Speaker 02: Mr. Archibald has only disputed element one to the race-judicata analysis of the Veterans Court, which is that the 1999 Veterans Court decision was a valid and final decision. [00:09:13] Speaker 02: The Veterans Court made factual findings and made application of law to fact in determining that the 1999 Veterans Court decision was valid and final. [00:09:25] Speaker 02: It made factual findings that the Board [00:09:27] Speaker 02: in 1997 found that the 1953 decision was final and that Mr. Archibald's 2012 claim was based on the same factual basis considered in the 1997 board decision. [00:09:38] Speaker 02: A challenge to the Veterans Court conclusion that a decision is final is a challenge to the Veterans Court's fact-finding and application of law to the facts, as the Court concluded in Halsey v. McDonald in 2015. [00:09:52] Speaker 02: the court lacks jurisdiction to directly review the 1999 Veterans Court decision, which it appears may be what Mr. Archibald seeks. [00:10:01] Speaker 02: Applying the facts found by the Veterans Court, the Veterans Court analysis of race judicata as a legal question was proper, and Mr. Archibald doesn't challenge the legal analysis of the Veterans Court. [00:10:16] Speaker 02: Mr. Archibald then makes two arguments as to why race judicata shouldn't apply and [00:10:21] Speaker 02: They relate to his argument that the 1953 decision was not final and an argument that there was a jurisdictional defect in the 1997 board decision. [00:10:38] Speaker 02: However, neither of those arguments are ones that can be successful. [00:10:43] Speaker 02: The court lacks jurisdiction to consider the question of finality of the 1953 decision. [00:10:50] Speaker 02: It would be a challenge to the Veterans Court's fact-finding in 1999. [00:10:57] Speaker 02: In fact, it is a collateral attack on the Veterans Court's conclusion in 1999 that it had jurisdiction. [00:11:04] Speaker 02: The court explained in the Gonzales decision cited by Mr. Archibald that [00:11:13] Speaker 02: that there was one notable exception to the general rule that a collateral attack on jurisdiction is not allowed, and that was because in that case there was a question of sovereign immunity, and that's not present here. [00:11:27] Speaker 02: Mr. Archbold has claimed that a party cannot confer subject matter jurisdiction on a court. [00:11:36] Speaker 02: However, in this case, we're not [00:11:40] Speaker 02: dealing with the subject, we're not dealing with the jurisdiction of the Veterans Court. [00:11:43] Speaker 02: In the case below, we're dealing with its jurisdiction in 1999, making this a collateral attack. [00:11:52] Speaker 02: In addition, Mr. Archibald invited the error that he is stressing now. [00:11:58] Speaker 02: He argued for many years that there was Q in the 1953 rating decision, meaning that he agreed that it was a final decision. [00:12:08] Speaker 02: In addition, even if the 1953 decision was not final, it doesn't affect the decision on the DC 7801Q claim. [00:12:18] Speaker 02: As the court found in Knowles, the veteran is not required to obtain a termination on finality in order to bring a Q claim, and a claim of the need for adjudication of finality rings hollow. [00:12:37] Speaker 02: The claim that Mr. Archbold makes of a jurisdictional defect in the 1997 board decision and the 1999 Veterans Court decision is also one that the court can't review due to its factual nature. [00:12:54] Speaker 02: In addition, it represents a collateral attack on jurisdiction. [00:12:57] Speaker 02: Mr. Archbold also invited that error by moving forward with the 1997 board proceedings, although [00:13:03] Speaker 02: He now claims that the board did not have jurisdiction at that time. [00:13:08] Speaker 02: In fact, as we explained in our briefs, Mr. Archibald did raise the DC 7801Q claim in November 1991 before the board. [00:13:18] Speaker 02: And after remand, it was denied by the regional office. [00:13:21] Speaker 02: Therefore, there was a decision that would enable the board to have jurisdiction, which Mr. Archibald has claimed it did not. [00:13:31] Speaker 02: Mr. Archibald also claimed that he didn't submit a Notice of Disagreement to the 1992 supplemental statement of the case. [00:13:38] Speaker 02: There were two of those, and that means that the Board didn't have jurisdiction in 1997. [00:13:45] Speaker 02: However, as we pointed out in our brief at page 30, note 11, 38 CFR 19.38 provides that if there is remand and full relief is not awarded, [00:14:00] Speaker 02: case automatically comes back to the board and there's no need for a notice of disagreement for the board to have jurisdiction. [00:14:06] Speaker 02: And finally Mr. Archbold has claimed that there [00:14:10] Speaker 02: exceptional circumstances allowing recall of the 1999 Veterans Court mandate. [00:14:15] Speaker 02: Mr. Archibald did not file a motion to recall the 1999 Veterans Court case in that case, which was 97-326. [00:14:23] Speaker 02: Instead, he's made a collateral attack in the current case, which is an appeal of the 2016 board decision. [00:14:31] Speaker 02: As explained in our brief, a freestanding finality challenge [00:14:37] Speaker 02: should not be allowed, as the Court concluded in Knowles. [00:14:42] Speaker 02: And none of the exceptional circumstances identified by courts in the decisions cited by Mr. Archbold exist here. [00:14:50] Speaker 02: There was no fraud or clerical mistake. [00:14:53] Speaker 02: There was no issue of sovereign immunity, as in the Court's Gonzales decision. [00:14:59] Speaker 02: And in addition, Mr. Archbold [00:15:06] Speaker 02: assertions about notice aren't ones that make sense in this context. [00:15:16] Speaker 02: Prior to February 1990, the VA was not required to provide the specificity of reasons that Mr. Archbold is claiming were required. [00:15:28] Speaker 02: And as the Veterans Court noted in 1999, the reasons provided were frequently not very detailed. [00:15:36] Speaker 02: And the Veterans Court decision, therefore, should be affirmed if the Court has no further questions. [00:15:48] Speaker 02: We again request that the Court affirm the Veterans Court decision. [00:15:54] Speaker 00: Okay. [00:15:54] Speaker 00: Thank you. [00:15:58] Speaker 00: Ms. [00:15:58] Speaker 00: Pruf? [00:15:59] Speaker 01: Thank you, Your Honor. [00:16:03] Speaker 01: Almost all of the arguments which the secretary presented represented a difference in the party's reading of the case law that's covered in the briefs. [00:16:12] Speaker 01: And unless the court has more questions about that, I would refer to the briefs. [00:16:17] Speaker 01: I would note, though, each clear and unmistakable error assertion is a separate claim. [00:16:25] Speaker 01: So a remand of one CUE theory does not give the agency, does not give the board [00:16:32] Speaker 01: jurisdiction over a separate CUE theory. [00:16:38] Speaker 01: They're just not the same thing. [00:16:40] Speaker 01: It is the same as though the court remanded a rating decision for a broken leg and the board then also took jurisdiction of a PTSD claim. [00:16:53] Speaker 01: Separate claims, each separate claim has to be the subject of a notice of disagreement or the board does not have jurisdiction over it. [00:17:03] Speaker 01: Also, one quick note about the secretary's argument that prior to 1990 and referring to the Natali case, the agency was not required to give specific reasons or bases for its decisions, not required to explain them well. [00:17:22] Speaker 01: I would note, number one, that Natali was based on a new statute and the court held that statute was not retroactive. [00:17:30] Speaker 01: That reasons or basis requirement, though, has been in the regulations going back to before Mr. Archibald's 1953 claim. [00:17:42] Speaker 01: And Natalia did not address that for whatever reason. [00:17:44] Speaker 01: I assume the parties didn't raise it. [00:17:49] Speaker 01: But even more importantly, this is not a question of whether or not the VA adequately explained its decision in 1953. [00:17:57] Speaker 01: The question is whether it adequately gave notice of what that decision was, the bare bones of what did they decide and what's the claim that was decided. [00:18:08] Speaker 01: Regardless of whether they explained it adequately, the veteran was entitled as rule holds and rule interpreted in 1982 notice reg. [00:18:20] Speaker 01: VA, at the very least, minimally has to tell the veteran what claim it's deciding. [00:18:24] Speaker 01: That didn't happen here. [00:18:26] Speaker 01: And the failure of notice interrupts the finality of the 1953 decision and voids all of the other subsequent CUE adjudications in Mr. Archibald's case. [00:18:41] Speaker 01: We would ask that the court find that the CABC abused its discretion in [00:18:49] Speaker 01: implicitly denying recall of the mandate and the judgment and that the court order it recalled and order the court below to likewise remand with an order that the agency adjudications be set aside. [00:19:03] Speaker 00: Thank you, Your Honor. [00:19:04] Speaker 00: Thank you both. [00:19:05] Speaker 00: The case is taken under submission. [00:19:07] Speaker 00: That concludes this panel's arguments for this morning.