[00:00:00] Speaker 01:
1928.

[00:00:36] Speaker 01:
Mr. Rosado, we're ready when you are.

[00:00:39] Speaker 01:
And, well, actually, you're Mr. Burlbridge, correct?

[00:00:43] Speaker 01:
Yes, Your Honor.

[00:00:44] Speaker 01:
All right.

[00:00:44] Speaker 01:
And you reserve five minutes of rebuttal time.

[00:00:46] Speaker 04:
That's correct.

[00:00:49] Speaker 04:
May it please the Court, Adam Burlbridge on behalf of veteran appellant, Robert Trofiat.

[00:00:54] Speaker 04:
Your honors, the veteran court reversibly aired in two ways, thus requiring a remand in order to create a factually sufficient record for review and to apply Diagnostic Code 7806 under its proper interpretation.

[00:01:07] Speaker 01:
First, the court misinterpreted- Before we get a little too far, can you explain why we have jurisdiction in this case?

[00:01:14] Speaker 01:
Aren't there two arguments at the bottom that we apply the facts to the law differently than what happened below?

[00:01:22] Speaker 04:
No, Your Honor, not at all.

[00:01:24] Speaker 04:
This court certainly has jurisdiction over the case for multiple reasons.

[00:01:27] Speaker 04:
First, the Veterans Court itself.

[00:01:29] Speaker 01:
Even if we follow your argument to the very end, doesn't that put us in a position of making a factual finding that really should have been done below?

[00:01:37] Speaker 04:
No, Your Honor, and yes, you should not be making the factual finding.

[00:01:42] Speaker 04:
And you're correct that the factual finding should have been made below.

[00:01:45] Speaker 04:
It should have been made by the board in the first instance.

[00:01:48] Speaker 04:
However, in this case, the board didn't look at the requisite factual findings at the time because this court changed the law in Johnson.

[00:01:55] Speaker 04:
Pre-Johnson, there was a per se rule such that

[00:01:59] Speaker 04:
for a treatment to qualify a systemic therapy on the diagnostic code 7806, it must have a corticosteroid.

[00:02:06] Speaker 04:
However, after this court decided Johnson, that was no longer the case.

[00:02:10] Speaker 01:
Johnson made clear that topical treatments such as Clotrimosol 1% could be- You want us to find that the application of a topical cream is a systemic treatment?

[00:02:23] Speaker 04:
No, Your Honor, I want you to find that the factual record reviewed by the Veterans Court was insufficient for review.

[00:02:32] Speaker 01:
That's reweighing the facts.

[00:02:35] Speaker 04:
No, Your Honor, because the Veterans Court never had the facts before.

[00:02:38] Speaker 04:
The Veterans Court never had the dispositive factual question at issue in this case.

[00:02:43] Speaker 02:
What facts do you think that the board should have looked at that aren't in the record?

[00:02:47] Speaker 04:
The board should have looked at whether his topical treatment, clitrimosal 1%, affected his body as a whole.

[00:02:53] Speaker 04:
Johnson is crystal clear on that.

[00:02:55] Speaker 04:
And so is Burton.

[00:02:57] Speaker 04:
Burton is a controlling, presidential case for the Veterans Court.

[00:03:00] Speaker 02:
But the court did consider that argument.

[00:03:04] Speaker 02:
Next to last paragraph of its opinion, it specifically mentions that you argue that, or you attempt to the extent you state that, unlike Johnson, he does argue the topical application had a broad systemic effect.

[00:03:18] Speaker 02:
It goes on to say no argument is presented here.

[00:03:21] Speaker 04:
You're referring to the court's decision, not the board's, correct?

[00:03:23] Speaker 02:
Yeah, yeah.

[00:03:24] Speaker 02:
I mean, the court has made a finding that to the extent you're arguing that this topical application had a systemic, or to the extent you could argue that, you didn't actually present an argument on that point.

[00:03:35] Speaker 04:
Yes, Your Honor.

[00:03:36] Speaker 02:
Explaining the rest of the opinion, which admittedly could have been better, more clearly written, talking about how he didn't get a court of steroid.

[00:03:45] Speaker 02:
Because that was the argument that was presented to the Veterans Court, that he was getting a court of steroid.

[00:03:51] Speaker 02:
And the Veterans Court found the board's decision on that point was correct.

[00:03:57] Speaker 02:
So what you're left with is arguing now that a topical appointment

[00:04:03] Speaker 02:
that isn't a quarter steroid, that's not applied over his whole body, is somehow systemic.

[00:04:11] Speaker 02:
And the Veterans Court said you didn't even make an argument on that point to them in the first place.

[00:04:17] Speaker 04:
multiple points, I'd like to address them all.

[00:04:18] Speaker 04:
To start with the waiver argument, the Veterans Court found that the argument was waived because it found that the arguments were undeveloped.

[00:04:25] Speaker 04:
Well, of course the arguments were undeveloped because Mr. Tropic never had an opportunity to put on the requisite factual findings under the appropriate interpretation of Diagnostic Code 7806.

[00:04:34] Speaker 04:
That's because when the board reviewed his case, it was pre-Johnson's decision from this court.

[00:04:41] Speaker 04:
The legal standards changed, the evidentiary standards changed, such that Mr. Tropic has never had a full and

[00:04:46] Speaker 04:
I don't understand.

[00:04:47] Speaker 02:
So you're arguing that the Veterans Court decided the case upon an incomplete factual record?

[00:04:54] Speaker 04:
Yes, Your Honor, certainly.

[00:04:56] Speaker 02:
I'm not sure that that's still a question within our jurisdiction about whether the Veterans Court gets to decide whether the factual record is sufficient or not.

[00:05:05] Speaker 02:
That's a reasons and bases remand, and we don't have jurisdiction over those kind of arguments.

[00:05:10] Speaker 02:
So if you had presented that argument squarely to the Veterans Court and said, the record below is insufficient, and the Veterans Court had said, no it's not, that argument wouldn't be within our jurisdiction either.

[00:05:24] Speaker 02:
And that seems to me like the argument you're making today, even though it's not what I thought was the argument you were making in your brief.

[00:05:30] Speaker 04:
Your Honor, if you look at joint appendix page 2150, it's very clear that the veteran in this case raised this issue to the court.

[00:05:39] Speaker 02:
Now I'm not asking you that question about raising it.

[00:05:41] Speaker 02:
Isn't an argument that the record was insufficient the type of argument that the reasons and bases remand from the Veterans Court to the board to provide additional reasons and bases and to develop the record?

[00:05:55] Speaker 02:
Those are application of law to fact that we don't get a review.

[00:05:59] Speaker 04:
Your Honor.

[00:06:00] Speaker 04:
I don't disagree because in this case, it's clear that the Veterans Court misinterpreted 7806.

[00:06:07] Speaker 02:
Let me back up and I appreciate you're probably handling this pro bono and I appreciate that.

[00:06:12] Speaker 02:
But it is indisputable that we don't get a review, a Veterans Court decision, whether to remand for additional reasons and basis.

[00:06:23] Speaker 02:
Yes, sir.

[00:06:24] Speaker 02:
It sounds to me that that's exactly what you're arguing, that the Veterans Court should have remanded this to the board to expand the record and take another look at it.

[00:06:34] Speaker 02:
Your Honor.

[00:06:35] Speaker 02:
Is that what you're arguing, that the Veterans Court should have remanded this to the board to allow additional evidence and take another look?

[00:06:42] Speaker 04:
That's one argument, but we have multiple arguments.

[00:06:44] Speaker 02:
Move one to one that seems more likely within our jurisdiction.

[00:06:48] Speaker 04:
That sounds great.

[00:06:49] Speaker 04:
So Diagnostic Code 7806 again changed the evidentiary standards under which Mr. Tropic had an opportunity to put his case on and to show

[00:06:59] Speaker 04:
that his case met the requisite legal standards and factual standards changed between the board decision and the Veterans Court's decision, such that the Veterans Court had a duty to look at the board's decision and interpret the diagnostic code correctly.

[00:07:17] Speaker 02:
OK, but I'm still not seeing anything within our jurisdiction because it sounds to me like you're saying, well, the legal standard changed and the court should have either remanded it to the board to apply it again or should have itself applied it differently.

[00:07:32] Speaker 02:
Again, all application of law and effect.

[00:07:35] Speaker 02:
There's no dispute over what the legal standard is, right?

[00:07:41] Speaker 04:
I don't know that that's necessarily the case, because in this case, Your Honor, the Secretary has argued that the factual record is complete.

[00:07:49] Speaker 04:
And it's sufficient for this court and the Veterans Court to pass judgment on whether or not Mr. Tropiac's topical treatment affected his whole body.

[00:07:57] Speaker 04:
That factual finding is nowhere in the board's decision below.

[00:08:00] Speaker 04:
And the Secretary has since conceded that that factual circumstance, that factual finding is a case-by-case question of fact that must be remanded for the board to make in the first instance.

[00:08:11] Speaker 04:
The Veteran Court does not have jurisdiction to make that determination.

[00:08:15] Speaker 02:
That would have been for the Veterans Court to do, not us.

[00:08:19] Speaker 04:
Your Honor, this court has jurisdiction to review an error of law made by the Veterans Court.

[00:08:24] Speaker 02:
Not if it's an application of a law of fact.

[00:08:29] Speaker 04:
And in this case, it's not an application of a law of fact.

[00:08:31] Speaker 02:
It's a misapplication of... You just described the errors using the word application again.

[00:08:40] Speaker 02:
I'm sorry, but everything you're saying to me is you think this case changed the law.

[00:08:47] Speaker 02:
I suspect the secretary is going to say it doesn't, but I don't even think we have to get into it.

[00:08:53] Speaker 02:
You say there's a new legal standard and that the court should have remanded for further development in a different application.

[00:09:05] Speaker 02:
Is that essentially the error you think the Veterans Court made?

[00:09:09] Speaker 04:
The veteran court made that error after having misinterpreted the diagnostic code 7806 in light of Johnson, and it also made an error in its application of Warren.

[00:09:19] Speaker 04:
In this case, the veteran's court said that Warren does not apply because his therapy was not applied orally.

[00:09:27] Speaker 04:
And Johnson teaches that oral administration or the root administration is not what defines whether or not the therapy qualifies as systemic therapy under DC 7806.

[00:09:37] Speaker 04:
What qualifies a treatment as systemic therapy is whether or not the therapy affects the whole body.

[00:09:43] Speaker 04:
So, Your Honor, the court made at least two misinterpretations in a regulation that this court has jurisdiction to review.

[00:09:49] Speaker 01:
And you're referring to regulation section 4.118.

[00:09:53] Speaker 01:
Yes, Your Honor.

[00:09:54] Speaker 01:
And, okay, are you saying that they misinterpreted that regulation?

[00:09:59] Speaker 04:
Yes, Your Honor.

[00:10:00] Speaker 01:
And that's because when the law changed, the precedent changed, then the D.C.

[00:10:07] Speaker 01:
7806 changed?

[00:10:09] Speaker ?:
Correct.

[00:10:10] Speaker 01:
And that's where the word, after the word such as, intermediate systemic therapy, such as, and then it is corticosteroids and other immunosuppressive drugs.

[00:10:22] Speaker 01:
That wording, such as, now brings you into the gambit where a topical application could be considered a systemic treatment.

[00:10:33] Speaker 04:
That's correct, Your Honor.

[00:10:34] Speaker 04:
That's clear from the warning.

[00:10:35] Speaker 01:
So if we go that far, and we're branching all that up to this point, what do we do?

[00:10:40] Speaker 01:
I mean, you're asking us to make a determination that the topical application is a systemic therapy, and that's a factor funding.

[00:10:49] Speaker 04:
Your Honor, we're not asking that this court find that the topical application is a systemic therapy.

[00:10:54] Speaker 04:
We're asking this court to clarify to the Veterans Court that a topical treatment can qualify as a systemic therapy.

[00:11:00] Speaker 04:
And it must look at the facts below.

[00:11:02] Speaker 01:
Yeah, that should be done below.

[00:11:05] Speaker 02:
Where did the court say in its opinion that a topical application could never qualify as systemic?

[00:11:15] Speaker 04:
The court in this case, the Veterans Court?

[00:11:17] Speaker 04:
Yeah.

[00:11:17] Speaker 04:
On page three.

[00:11:19] Speaker 04:
of the Joint Appendix and page 3 of the decision, it's clear at the top of the last paragraph in that page that what the court did was apply a per se rule, and it looked to see whether or not his topical treatment contained a corticosteroid.

[00:11:34] Speaker 04:
That is the law before Johnson.

[00:11:39] Speaker 04:
It's page three of the Joint Appendix.

[00:11:41] Speaker 04:
It says, the appellant has failed to persuade the court that the board... Can you hang on for a second?

[00:11:45] Speaker 04:
Yes, Your Honor.

[00:11:46] Speaker 03:
Oh, you're looking at the last paragraph on that page?

[00:11:48] Speaker 03:
Yes, Your Honor.

[00:11:49] Speaker 03:
Okay, thank you.

[00:11:51] Speaker 03:
You can go ahead and read it.

[00:11:52] Speaker 02:
But they cited the correct law right before that, when they're talking about Johnson and said that the use of topical steroids does not automatically mean... Yes, Your Honor, because that's the per se rule.

[00:12:07] Speaker 02:
No, but they're saying the Federal Circuit reversed that rule.

[00:12:11] Speaker 02:
The court recognizes that rule is no longer good.

[00:12:15] Speaker 04:
But that doesn't mean that it's applying the rule correctly.

[00:12:17] Speaker 04:
And I'm not saying applying to the facts of this case.

[00:12:21] Speaker 02:
You need to talk about applying your legal argument without using the word applying, because you're going to lose on jurisdiction if you talk about applying it.

[00:12:30] Speaker 02:
I don't understand how, reading this paragraph, it's not clear that they understand what the new rule is.

[00:12:36] Speaker 02:
They cite our case on this point.

[00:12:40] Speaker 04:
Your Honor, this same issue has come up again to the Veterans Court.

[00:12:48] Speaker 04:
The Veterans Court took the identical opposite tact.

[00:12:53] Speaker 04:
And what it did was it remanded on this specific drug issue here.

[00:12:56] Speaker 02:
But that's the decision the Veterans Courts get to make.

[00:13:01] Speaker 02:
Here, I mean, you go on and read the rest of this.

[00:13:03] Speaker 02:
And it is true that they're only talking about whether his treatment had a court of steroid.

[00:13:08] Speaker 02:
But that's because that's what he argued to them, that his ointment was a steroid.

[00:13:14] Speaker 04:
Your Honor, the board has a duty to assist the veteran.

[00:13:18] Speaker 04:
And in this case, the board has a duty to assist the veteran such that every treatment that he had can- But you're not arguing that a breach of the duty to assist is within our jurisdiction either, are you?

[00:13:29] Speaker 04:
No, Your Honor, what I'm telling you is that in these given circumstances, the duty to assist makes it even more apparent that the evidentiary standards have changed, such that the Veterans Court should have reviewed this decision, seen that the legal standards changed, seen that the evidentiary standards had changed, and realized that the record was insufficient for review.

[00:13:50] Speaker 01:
Okay, Mr. Judge, I think we have your argument, and I'm just letting you know that you're well into your rebuttal time.

[00:13:56] Speaker 01:
If you want to reserve, you've got about two minutes.

[00:13:58] Speaker 04:
Thank you, Your Honor.

[00:13:59] Speaker 04:
I'll reserve the remainder.

[00:14:00] Speaker 04:
All right, thank you.

[00:14:09] Speaker 01:
Attorney Krister.

[00:14:15] Speaker 00:
Good morning, your honors.

[00:14:16] Speaker 00:
May it please the court?

[00:14:18] Speaker 02:
In this case, Mr. Tropea- You agree that a topical application can be systemic in certain circumstances, right?

[00:14:25] Speaker 00:
Yes, Your Honor, that's the holding of Johnson v. Shulkin.

[00:14:28] Speaker 00:
Well, Johnson v. Shulkin only addressed topical corticosteroids, but it does say that... It doesn't, but you agree that it doesn't have to be a cortical steroid to be systemic.

[00:14:38] Speaker 02:
It can be something else, if the record shows that.

[00:14:40] Speaker 00:
Johnson v. Shulkin leaves open this window that a topical treatment can, in certain factual circumstances, be systemic therapy.

[00:14:51] Speaker 00:
And the example they use is a large-scale application to the body.

[00:14:54] Speaker 02:
I mean, so the Veterans Court decision here isn't as clear as it could be, because it does seem to say over and over again that the reason he loses is because this isn't a court of steroid, not because it's not systemic.

[00:15:10] Speaker 02:
The Veterans Court could lead one to think that they are using the wrong standard.

[00:15:16] Speaker 00:
The Veterans Court, in order to understand the Veterans Court, it's helpful to look at the arguments that Mr. Tropic made to it with his previous counsel.

[00:15:25] Speaker 00:
And all the arguments before the board, because of the Johnson v. McDonald situation, were about whether his topical treatment contained a corticosteroid or not.

[00:15:35] Speaker 00:
So then when we get to the Veterans Court decision, by the time the Veterans Court briefing was happening, Johnson v. Shulton had come out.

[00:15:43] Speaker 00:
So Mr. Tropiak was free to make to the Veterans Court any arguments that he had that he felt were opened by Johnson v. Shulton to the extent that he felt his topical treatment affected his body as a whole.

[00:15:54] Speaker 02:
Did he argue at that time that there should be a remand for further development of the record by the board for Johnson?

[00:16:00] Speaker 00:
Mr. Tropiat did ask for a remand.

[00:16:03] Speaker 00:
He did not ask for it in the context, I believe, that the board had made a factual error or did not have sufficient facts before it or needed to further develop the effect of the treatment on his body.

[00:16:15] Speaker 00:
He simply made a statement that, unlike the person in Johnson, I say this has a whole body effect on me.

[00:16:20] Speaker 03:
You said that he did ask for a remand?

[00:16:23] Speaker 00:
Yes.

[00:16:23] Speaker 03:
And how was that treated?

[00:16:25] Speaker 00:
The Veterans Court simply affirmed the board and thus found that there is not going to be a remand.

[00:16:32] Speaker 00:
And that's because he did not request further factual development.

[00:16:37] Speaker 00:
Whatever, now that Mr. Tropiak is bringing up this Burton case, the fact that the Veterans Court in Burton has now taken a certain interpretation of Johnson v. Shulkin or

[00:16:48] Speaker 00:
told the board that the board now needs to make more sorts of factual development does not mean there was a legal error in this Veterans Court case.

[00:16:55] Speaker 00:
The Veterans Court considered the facts that the board had, the board, the Veterans Court in this case obviously considered that the board had enough facts and affirmed it on that conclusion and found Mr. Tropiat's arguments were simply not persuasive or had been waived.

[00:17:11] Speaker 00:
That is

[00:17:12] Speaker 00:
not a question of legal interpretation of 7806.

[00:17:15] Speaker 00:
There is nothing in the Veterans Court decision that at all states that DC 7806 means that systemic therapy can only be corticosteroids or other immunosuppressive drugs.

[00:17:28] Speaker 00:
Simply rejecting the idea that he was actually using a corticosteroid is not a broad-scale rejection of Johnson v. Shulkin or Warren v. McDonald.

[00:17:40] Speaker 00:
There's also other factual issues in this case, namely that he already has a rating under DC 7804.

[00:17:46] Speaker 00:
He was given a 20% rating on the basis that his two toenails are analogous to two painful scars.

[00:17:54] Speaker 00:
What is the relevance of that?

[00:17:55] Speaker 00:
The fact is that all of Mr. Tropiat's arguments about DC 7806 necessarily impinge on the board's factual finding that DC 7804 best fits his disability picture.

[00:18:10] Speaker 00:
Veterans can't have two ratings for the same disability.

[00:18:14] Speaker 00:
So in order to get something higher under DC 7806,

[00:18:19] Speaker 00:
there'd need to be fact-finding that the board has already decided DC-7806 doesn't best fit what he has because they gave him something under DC-7804.

[00:18:28] Speaker 00:
So, because DC-7813, which covers this entire realm of skin,

[00:18:37] Speaker 00:
infections states that it should be rated based on the predominant disability and they decided that seven the board decided that 7804 best fit his predominant disability so that's another issue a factual challenge that that mr tropiac is making in this case so um there's been no statutory or regulatory interpretation of here neither of johnson v shulkin especially not of johnson v shulkin um

[00:19:02] Speaker 00:
They did not misapply Warren v. McDonald.

[00:19:04] Speaker 00:
This is not a case about whether an anti-fundal medication can, in general, ever be systemic therapy.

[00:19:11] Speaker 00:
The issue is that in Warren, it addressed a pill that was conceded to have a systemic effect, and the Veterans Court simply found here that that was not the factual situation that was addressed by this case.

[00:19:23] Speaker 00:
Therefore, this court also does not have jurisdiction to the extent he's raising new antibiotic-related arguments that was never presented to the Veterans Court.

[00:19:32] Speaker 00:
And there's also no reason for a remand.

[00:19:35] Speaker 00:
There have been no change to the law that affects Mr. Tropiac's treatment that he actually uses.

[00:19:41] Speaker 00:
Throughout the entire time period, a 0% rating has always been warranted for a veteran that uses a non-porticoid steroid topical treatment over a small area of the body.

[00:19:51] Speaker 00:
So to the extent something changes, they get to topical corticosteroids, that does not affect Mr. Tropiac.

[00:19:57] Speaker 03:
And there's no basis- Are you saying that there's Johnson v. Shulkin doesn't have any impact at all on the case?

[00:20:05] Speaker 03:
I'm sorry.

[00:20:06] Speaker 03:
I want to make sure I understand what you just said.

[00:20:08] Speaker 03:
You said there's been no change in the law.

[00:20:10] Speaker 03:
Are you talking about Johnson?

[00:20:12] Speaker 00:
No, I'm saying obviously Johnson v. Shulkin changed how, well, it put back how DC 7806 should be interpreted in terms of the idea that topical corticosteroids and

[00:20:25] Speaker 03:
So we change the law and then if he has a different set of facts, he could rely on that change?

[00:20:30] Speaker 00:
Yes, that's correct.

[00:20:31] Speaker 00:
And that is again the application of law to facts.

[00:20:33] Speaker 00:
So there's no basis here for the idea that if there's a factual dispute or the veteran would have liked to present different factual arguments,

[00:20:40] Speaker 00:
this case should be remanded to the Veterans Court.

[00:20:42] Speaker 00:
If this is all about facts and the application of a lot of facts, which it is, that means the appeal should be dismissed.

[00:20:48] Speaker 00:
There's no basis to further ask the Veterans Court to consider this or tell the board it looked at the wrong facts.

[00:20:54] Speaker 00:
If Mr. Tropiat now believes the board had the wrong facts or didn't use the right facts and the Veterans Court should not affirm that, that necessarily asks this court to decide that the facts were insufficient.

[00:21:05] Speaker 00:
And this court does not have jurisdiction to do that.

[00:21:07] Speaker 00:
So therefore, this appeal should be dismissed.

[00:21:09] Speaker 00:
Thank you.

[00:21:09] Speaker 01:
Thank you very much.

[00:21:12] Speaker 01:
You've got two minutes, Mr. Burbridge.

[00:21:23] Speaker 04:
Just a few points, Your Honor.

[00:21:26] Speaker 04:
As an initial point, this court has jurisdiction over the case.

[00:21:29] Speaker 04:
The Veterans Court explicitly stated that it was interpreting the regulation at issue.

[00:21:34] Speaker 04:
It interpreted DC 7806 and also looked at the law post-Johnson.

[00:21:43] Speaker 01:
Did the Johnson decision actually change the law, or did it just clarify it?

[00:21:49] Speaker 04:
It changed the law.

[00:21:50] Speaker 04:
The Burton court found that it was a change of law.

[00:21:52] Speaker 04:
This court essentially stated that it was a change of law by specifying the plain language of what systemic therapy was, topical therapy, and specifically defining therapy as treatment.

[00:22:06] Speaker 04:
Therefore, topical treatment can now qualify as a treatment that contains, or excuse me, that does not contain a corticosteroid.

[00:22:14] Speaker 01:
So you argued for remand.

[00:22:15] Speaker 01:
What is it you wanted remand for?

[00:22:18] Speaker 04:
Your Honor, we need a remand in this case so that Mr. Tropic has- Move down below.

[00:22:23] Speaker 01:
I think that before the Veterans Court, you argued that the Veterans Court should remand the matter.

[00:22:29] Speaker 01:
What was that argument?

[00:22:30] Speaker 04:
Yes, Your Honor.

[00:22:31] Speaker 04:
This is the argument that I pointed the court to earlier at J.A.

[00:22:33] Speaker 04:
2150 to 2151.

[00:22:36] Speaker 04:
Specifically, I'd like to read this.

[00:22:37] Speaker 04:
He says that here the elusive clotrimazole cream 1% may constitute a systemic therapy like or similar to a corticosteroid or other immunosuppressive drug to warrant a higher disability rating.

[00:22:50] Speaker 04:
The board did not address this issue.

[00:22:52] Speaker 04:
A remand is warranted.

[00:22:55] Speaker 04:
Your Honor, in Hensley v. West, this Court has stated that recognizing an error on part of the Board, the proper course for the Court of Appeals of Veterans Claims would have been to remand the case to the Board for further development and application of the correct law.

[00:23:10] Speaker 04:
Since the ground given by the board for its decision led to an erroneous conclusion and consequently to an insufficient factual development of the record, its decision could not be affirmed.

[00:23:19] Speaker 04:
Your Honor, that's exactly what has happened in this case based on the change of evidentiary standards post-Johnson.

[00:23:26] Speaker 04:
Your Honor, I see that I'm out of time if there are no further questions.

[00:23:28] Speaker 04:
Thank you very much for your time.