[00:00:00] Speaker 01:
Case is number 2012-68, Shuford is against Wilkie.

[00:00:04] Speaker 01:
Mr. Cameron.

[00:00:07] Speaker 03:
Yes, Your Honor, thank you.

[00:00:09] Speaker 03:
Your Honor, this appeal involves the legal issues of whether the Veterans Court and the Board had the subject matter jurisdiction to decide Mrs. Shuford's appeal in the way that they did.

[00:00:24] Speaker 03:
Both the Court and the Board denied her

[00:00:30] Speaker 03:
earlier effective dates for the granted accrued benefits claim.

[00:00:35] Speaker 03:
And they did so in what we believe was in proper manner in reconsidering the VA's prior grant of a service connection issue.

[00:00:52] Speaker 03:
We believe that there's no legal authority

[00:00:56] Speaker 03:
for doing so and that they both acted without jurisdiction in an ultra-virus manner.

[00:01:23] Speaker 03:
The VA had clearly granted Mrs. Schuford's claim on the service connection issue and she appealed only the earlier effective date issues.

[00:01:35] Speaker 03:
The Board's errors and the Veterans Court's errors consisted primarily of misinterpreting the effective date statute and regulation, particularly

[00:01:51] Speaker 03:
the regulation at 3.400 to essentially interpret when entitlement arose to mean when service connection arose.

[00:02:05] Speaker 03:
And we believe that that's some misinterpretation of law because there's a significant difference between when service connection arose and when entitlement

[00:02:18] Speaker 03:
under the effective date regulation arose.

[00:02:22] Speaker 03:
Entitlement under the effective date regulation means when the disability was manifested and diagnosed.

[00:02:32] Speaker 03:
And that's quite a bit different from the issue of when service connection arose.

[00:02:40] Speaker 03:
In fact, I believe that when service connection arose simply means when to be a granted service connection.

[00:02:48] Speaker 03:
So we don't really believe that there's any legal basis for the misinterpretation and for the reconsideration of the service connection issue.

[00:03:01] Speaker 02:
Mr. Cameron, this is Judge Toronto.

[00:03:04] Speaker 02:
Can I ask you for the very, very narrow and specific question?

[00:03:09] Speaker 01:
Certainly.

[00:03:09] Speaker 02:
The board refers to the 2014 opinion of Dr. Desser

[00:03:17] Speaker 02:
as a VA medical opinion.

[00:03:21] Speaker 02:
Did the VA solicit that opinion?

[00:03:23] Speaker 02:
Did you solicit?

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

[00:03:25] Speaker 03:
It's not a VA opinion.

[00:03:26] Speaker 03:
It was a private opinion.

[00:03:28] Speaker 02:
OK.

[00:03:28] Speaker 02:
That was what the rest of the record suggested to me.

[00:03:31] Speaker 02:
So I was a little bit bewildered about that reference.

[00:03:35] Speaker 02:
Let me ask you another question.

[00:03:40] Speaker 02:
On what law did you rely

[00:03:46] Speaker 02:
for your assumption that the board, when asked to decide the date of eligibility, was bound by the subsidiary determination of service connection from the regional office, notwithstanding that there are, I guess,

[00:04:13] Speaker 02:
statutory provisions relevant here that say the board is supposed to base its decision on the entire record in the proceeding and consideration of all the evidence and material of record and applicable provisions of law, which, if there were nothing else, might well suggest that the board was right in thinking that when asked to determine the date of eligibility

[00:04:44] Speaker 02:
It was free to decide an issue as the service connection that was contrary to the way the regional office had decided it.

[00:04:56] Speaker 03:
What do you mean by date of eligibility?

[00:05:02] Speaker 02:
When, that is, that the board, you asked the board to, I'm sorry, not eligibility, I'm sorry, effective date.

[00:05:11] Speaker 03:
I'm sorry.

[00:05:15] Speaker 03:
The effective dates are controlled by the statute and the regulation at 3.400, which simply provides that the effective date is required to be the latter of the date of the application or the date when the disability entitlement arose.

[00:05:35] Speaker 03:
And that means when the disability began.

[00:05:37] Speaker 03:
And in Mr. Schuford's case, his disability began

[00:05:41] Speaker 03:
you know, well before his application was filed.

[00:05:45] Speaker 03:
So, you know, his effective date should have been the date of his 1977 application.

[00:05:55] Speaker 03:
And are you asking me why the board shouldn't have gone back behind the service connection decision or should have gone behind the service connection issue by the regional office?

[00:06:11] Speaker 02:
What was the legal authority for saying that the board could not ask the service connection question when it was being asked by you to grant many years more of benefits?

[00:06:37] Speaker 03:
Okay.

[00:06:39] Speaker 03:
All right, we believe that the board was bound by that prior service connection decision because no one appealed it.

[00:06:50] Speaker 03:
Mrs. Shuford did not appeal it.

[00:06:55] Speaker 03:
There was no authority to do that.

[00:07:00] Speaker 03:
The system is based on this notion that the board decides appeals of issues that were denied

[00:07:09] Speaker 03:
and the service connection issue in this case was clearly granted.

[00:07:15] Speaker 03:
It was granted based upon the VA's implicit and explicit findings that she had properly proved that the veteran was entitled to benefits based on the evidence that had been submitted prior to his death.

[00:07:32] Speaker 03:
This whole process is inconsistent with the notion

[00:07:37] Speaker 03:
the veteran or the claimant is entitled to two bites at the apple.

[00:07:41] Speaker 03:
I mean, if the VA denies service connection, she can appeal.

[00:07:49] Speaker 03:
But the VA cannot appeal itself.

[00:07:55] Speaker 03:
Or on the other hand, if service connection is granted for at the VA, then she has no reason to appeal that issue.

[00:08:05] Speaker 02:
Is your understanding that the Secretary could have in fact appealed the service connection determination under the CUE standard?

[00:08:19] Speaker 02:
Clear and unmistakable errors.

[00:08:21] Speaker 03:
Could the Secretary have appealed the grant of service connection issue?

[00:08:26] Speaker 03:
Yes.

[00:08:27] Speaker 03:
No, I don't believe so because it's a favorable decision.

[00:08:30] Speaker 03:
I think that's inconsistent with the entire system.

[00:08:35] Speaker 02:
I guess my understanding has been maybe, just correct me if I'm wrong, that the secretary is entitled under the statute and the regulations to appeal a veteran favorable decision under the clear and unmistakable error standard.

[00:08:57] Speaker 02:
Is that wrong?

[00:09:01] Speaker 03:
I think that there are, in limited cases,

[00:09:03] Speaker 03:
For example, in cases of fraud or very rare cases, I think that the VA can do that.

[00:09:14] Speaker 00:
What provision of the statute talks about the VA's right to appeal?

[00:09:19] Speaker 03:
In that limited context?

[00:09:26] Speaker 03:
Yeah.

[00:09:29] Speaker 03:
I don't recall that.

[00:09:32] Speaker 03:
I didn't review that, to be honest with you, because I didn't believe it applied in this case.

[00:09:39] Speaker 03:
Because I didn't see any evidence that there was evidence of fraud or any improper action here.

[00:09:48] Speaker 00:
I guess your argument, to put the best space on it, is that what the board did was to effectively allow the VA

[00:09:58] Speaker 00:
to appeal a decision that was favorable to the veteran, right?

[00:10:04] Speaker 03:
That's correct.

[00:10:05] Speaker 03:
That's right.

[00:10:07] Speaker 03:
Well, the board did it on its own, essentially without notice to anyone.

[00:10:18] Speaker 03:
And the first indication we had, of course, was the board's decision that they were doing that.

[00:10:29] Speaker 03:
But that's correct.

[00:10:32] Speaker 01:
Well, what the board did was to not extend the effective date to that which Mrs. Schuford was requesting.

[00:10:42] Speaker 01:
Isn't that right?

[00:10:44] Speaker 01:
They didn't change the question of entitlement otherwise.

[00:10:50] Speaker 03:
That's right.

[00:10:53] Speaker 03:
The board did not grant her an earlier effective date, denied an earlier effective date.

[00:10:59] Speaker 03:
But it denied her earlier effective date, essentially without looking at the evidence in the record which proved that his hypertensive condition existed prior to 2001.

[00:11:16] Speaker 03:
That is to say that the medical evidence in the record that proved that his entitlement under 3.400 arose prior to 2001.

[00:11:29] Speaker 01:
Okay, let's hear from the other side and you have rebuttal time.

[00:11:37] Speaker 03:
Okay.

[00:11:38] Speaker 03:
Thank you.

[00:11:39] Speaker 01:
Thank you.

[00:11:40] Speaker 01:
Mr. Hellman.

[00:11:44] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:11:46] Speaker 00:
This Court should dismiss the appeal here for lack of jurisdiction because... Mr. Hellman, which provision of the statute limits the Board, the VA's right to appeal a favorable RO decision?

[00:12:01] Speaker 04:
It's 38 USC 7252A, Your Honor, that says the Secretary may not seek review of Veterans Board's decisions.

[00:12:11] Speaker 00:
Okay, so I guess the argument here is that when the board inquired into the correctness of the service connection determination made by the RO, that was effectively allowing the VA to appeal a decision favorable to the veteran.

[00:12:32] Speaker 00:
So what's your response to that?

[00:12:34] Speaker 04:
Our response is that that's a mischaracterization of what happened.

[00:12:38] Speaker 04:
Similar to what Judge Newman pointed out previously, the benefits here were granted to Mrs. Shuford, and those benefits are not at issue.

[00:12:48] Speaker 04:
What Mrs. Shuford was asking for was an earlier effective date for additional benefits, and it was that earlier effective date that the board denied, and the board and the Veterans Court here clearly looked at a different

[00:13:03] Speaker 04:
provision, the statutory provision 5121, which talks about accrued benefits that a claimant is entitled to based on the benefits that would have been due to the veteran.

[00:13:15] Speaker 04:
The veteran here and Mrs. Shuford as an accrued benefits claimant did get benefits for Mr. Shuford's HCVD.

[00:13:26] Speaker 04:
Whether that was correct or not is something that the Secretary can't appeal as we just pointed out.

[00:13:33] Speaker 02:
But just to be clear, I mean, your position is and seems to me, I guess I understand the board decision to say we're not taking away the benefits you got, but we are rejecting a necessary premise for those benefits and in rejecting them,

[00:13:54] Speaker 02:
We will not extend them.

[00:13:56] Speaker 02:
We're going to leave in place what you got.

[00:13:58] Speaker 02:
But had the RO followed the law, according to the BVA, there would have been no benefits at all.

[00:14:06] Speaker 02:
The heart benefits, not the other one.

[00:14:10] Speaker 04:
Right?

[00:14:11] Speaker 04:
That's an implication.

[00:14:13] Speaker 04:
But the of what the board said, but I think because of the statutory

[00:14:22] Speaker 04:
requirements that once the benefits are granted, the secretary can't appeal them.

[00:14:26] Speaker 04:
The effect is that... Can I just get back to that?

[00:14:33] Speaker 02:
You cited 7252, which is about the secretary appealing to the Veterans Court, not appealing from an RO to the BVA, right?

[00:14:43] Speaker 04:
Yes.

[00:14:44] Speaker 02:
Okay.

[00:14:44] Speaker 02:
So why doesn't the

[00:14:49] Speaker 02:
uh... that that there's uh... in the regulation three point one oh five i think in the old old version that is not at the current version says that previous determinations which are final and binding including decisions of service connection will be accepted as correct in the absence of clear and unmistakable error why didn't doesn't that imply what i think is now

[00:15:16] Speaker 02:
since 2017 and 2019 under the Appeals Modernization Act maybe is even more expressed that in the absence of clear and unmistakable error, the board really is bound by a specific service connection determination and issue determination when it's pro-veteran.

[00:15:46] Speaker 04:
First, Your Honor, Ms.

[00:15:47] Speaker 04:
Schupert does not argue that in her brief.

[00:15:51] Speaker 02:
I understand.

[00:15:52] Speaker 04:
I don't think the language can be read as broadly as to say that the VA is bound on all the issues.

[00:16:02] Speaker 02:
I mean, I realize I'm moving around a little bit.

[00:16:10] Speaker 02:
Would you agree that under the

[00:16:14] Speaker 02:
Appeals Modernization Act, new Section 5104, Cap A, would, in fact, impose a standard.

[00:16:24] Speaker 02:
It says, any finding favorable to the claimant, as described in 5104B4 in this title, shall be binding.

[00:16:32] Speaker 02:
Any finding shall be binding on all subsequent adjudicators within the department

[00:16:38] Speaker 02:
unless clear and convincing evidence, that's the statutory language, is shown to the contrary to rebut the favorable finding.

[00:16:45] Speaker 02:
And then the VA in 2019 adopted a new implementing regulation, 3.104C, which translates clear and convincing evidence into clear and unmistakable error.

[00:16:56] Speaker 02:
And it's done at the level of finding, not at the level of concrete award.

[00:17:07] Speaker 02:
And I guess one question I have is would that language produce the result that Mrs. Hufford is arguing for here, namely that in the absence of a CUE finding, which was not argued for or made by the BVA, the BVA really was bound by the RO service connection finding.

[00:17:35] Speaker 02:
even though it was made on an illegal basis.

[00:17:42] Speaker 04:
Your Honor, again, the caveat is that this issue hasn't been briefed and the Appeals Modernization Act doesn't apply to Ms.

[00:17:49] Speaker 04:
Schubert's claim here because it was enacted afterwards.

[00:17:52] Speaker 02:
I think there... Can I ask you about that?

[00:17:55] Speaker 02:
I saw in some briefing, I think, that you all filed in another case some reference to the VA having

[00:18:04] Speaker 02:
offered legacy claimants an opt-in choice to opt into the Appeals Modernization Act system.

[00:18:16] Speaker 02:
Was that done here?

[00:18:18] Speaker 02:
Could it have been done?

[00:18:19] Speaker 02:
Could it be done now?

[00:18:22] Speaker 04:
Nothing in the record here reflects that it was done.

[00:18:25] Speaker 04:
It certainly has not.

[00:18:29] Speaker 04:
suggested or tried to opt into it.

[00:18:32] Speaker 04:
I am not entirely certain of what the criteria are for opting in.

[00:18:38] Speaker 04:
My understanding is that there are several new tracks created by the Appeals Modernization Act.

[00:18:44] Speaker 04:
The old claims continue along their track.

[00:18:47] Speaker 04:
There's a track for new claims.

[00:18:48] Speaker 04:
And then there may be this sort of hybrid track.

[00:18:52] Speaker 04:
And I'm not certain as to what one has to do to opt into that or become a part of that.

[00:18:59] Speaker 04:
not at issue here, and Ms.

[00:19:01] Speaker 04:
Schubert hasn't made those arguments.

[00:19:04] Speaker 04:
So I can't give you a conclusive answer on that, unfortunately, Judge Stromtow.

[00:19:09] Speaker 02:
I'm sorry.

[00:19:09] Speaker 02:
I have one more.

[00:19:10] Speaker 02:
I mean, some of this is just my trying to understand aspects of the statute that I don't know like the back of my hand.

[00:19:17] Speaker 02:
So one of the things the AMA did was to repeal a statutory provision 7106

[00:19:24] Speaker 02:
which said that application for review on appeal may be made within the one-year period prescribed in 7105 by officials of the department, which suggests that at least until it was repealed, the secretary could actually appeal to the BVA.

[00:19:46] Speaker 02:
Do you know anything about this provision?

[00:19:50] Speaker 04:
I don't, but my understanding is that because this is a pro-veteran system, the secretary at the lower level is limited in what he or she can appeal.

[00:20:01] Speaker 04:
And certainly grants by the regional office of benefits are not something that can be appealed.

[00:20:07] Speaker 04:
And then as we talked about at the beginning, decisions to the veterans court can't even be appealed by the secretary.

[00:20:15] Speaker 04:
The secretary can issue

[00:20:17] Speaker 04:
opinions that are supposed to be binding on the board.

[00:20:20] Speaker 04:
So if the secretary disagrees with a particular outcome, he can try to affect change that way.

[00:20:25] Speaker 04:
But certainly at the board level and below, the secretary is very limited in what he can appeal.

[00:20:33] Speaker 02:
And you're not aware that before it was repealed, 7106 was ever actually used?

[00:20:40] Speaker 04:
I have not looked into that question, Your Honor, but I have not seen anything that suggests to me that the Secretary certainly didn't invoke it in this case, and I'm unaware of any cases where the Secretary has invoked that.

[00:20:53] Speaker 00:
What is the citation to the regulation that governs the Secretary's right to appeal before the new statute?

[00:21:04] Speaker 04:
Judge Toronto was referring to 38 CFR 3.105.

[00:21:11] Speaker 04:
And I'm not sure I answered your initial questions as Toronto about how the Appeals Modernization Act

[00:21:35] Speaker 04:
provisions would apply here.

[00:21:37] Speaker 04:
I think that's certainly a hypothetical.

[00:21:39] Speaker 04:
But I think the question of effective date for additional benefits is different than the grant of benefits here to the extent that the board was required to look at it as a separate statutory entitlement and examine the statutory language.

[00:21:58] Speaker 04:
That says you have to look at the evidence in the file at the date of death.

[00:22:03] Speaker 04:
Nobody disputes here that

[00:22:05] Speaker 04:
At the date of death, there was no medical opinion linking the hypertensive cardiovascular disease to Mr. Schupert's psychiatric disorder.

[00:22:15] Speaker 04:
And the Board and the Veterans Court applied the straightforward testory language to the facts of the case and found that Ms.

[00:22:23] Speaker 04:
Schupert was not entitled to an earlier effective date.

[00:22:26] Speaker 02:
I think Mr. Cameron has made a suggestion, put aside right now kind of the

[00:22:32] Speaker 02:
the merits of the jurisdictional limit that it was a great surprise when the BVA went ahead and made its own determination of service connection, putting aside Dr. Desser's evidence.

[00:22:50] Speaker 02:
And maybe the suggestion is, or I don't remember, maybe even the express argument,

[00:22:57] Speaker 02:
was that there was a kind of a due process notice issue that he never got the chance to brief to the BVA that service connection really should be found, namely the heart problem, psychiatric disorder connection, which is I think what this is all about, should be found even if you did not have Dr. Desser's 2014 declaration.

[00:23:26] Speaker 02:
and that he was never really given a fair chance to brief that before BVA decided it.

[00:23:32] Speaker 02:
What do you say to all of that?

[00:23:35] Speaker 04:
Well, Your Honor, I just want to correct something or disambiguate something in your question.

[00:23:42] Speaker 04:
I think they're two separate

[00:23:44] Speaker 04:
issues here.

[00:23:44] Speaker 04:
One is the psychiatric disorder, which is not at issue here.

[00:23:48] Speaker 04:
The service connection and the effective date for that is not at issue.

[00:23:51] Speaker 04:
What's at issue is the linkage of that to the hypertensive cardiovascular disease and heart problems.

[00:23:57] Speaker 02:
Yeah, that's what I meant.

[00:23:58] Speaker 02:
And I think BVA said that the only basis in the record on which that connection could be made was evidence that post-dated Mr. Shuford's death, namely the 2014 Dr. Desert Declaration.

[00:24:13] Speaker 02:
or report.

[00:24:16] Speaker 04:
That's correct.

[00:24:17] Speaker 04:
And certainly that was, the board said that, so Mr. Cameron, Mr. Shoeford's counsel throughout these proceedings, had notice of that by the time the case was at the Court of Veterans claims.

[00:24:31] Speaker 02:
Right, but the Court of Veterans claims, I'm sorry, but the Court of Veterans claims does not get to make factual findings.

[00:24:38] Speaker 02:
So the question is whether he had noticed that that was an issue

[00:24:42] Speaker 02:
before the BVA decided it?

[00:24:52] Speaker 04:
Given that this is a pro-veteran system and it's somewhat one-sided, Mr. Cameron submits evidence and the BVA examines it.

[00:25:05] Speaker 04:
It's hard to say he didn't have notice, but even if there

[00:25:10] Speaker 04:
was some sort of lack of notice, for lack of a better term.

[00:25:17] Speaker 04:
Mr. Cameron doesn't point to anything to indicate that that lack of notice prejudiced his client.

[00:25:22] Speaker 04:
There's no additional evidence that he points to that he says he would have submitted had he had noticed.

[00:25:28] Speaker 04:
So certainly any error here would be deemed harmless there because aside from the 2014 Dr. Desser report, there's nothing else establishing

[00:25:38] Speaker 04:
service connection.

[00:25:40] Speaker 00:
Did the Veterans Court address this lack of notice issue?

[00:25:48] Speaker 04:
The Veterans Court, I don't know, Your Honor.

[00:25:51] Speaker 04:
The so-called due process argument wasn't, I don't believe was raised at the Veterans Court either.

[00:25:59] Speaker 04:
I think this is the first time it's being raised and certainly we first argued that it's waived because it wasn't preserved.

[00:26:08] Speaker 04:
due process and constitutional claims would stand on a different foot in terms of this Court's review because it's not precluded by 7292 from only looking at the interpretations of law.

[00:26:23] Speaker 04:
But there is no prejudicial error here and that's at the very least that's the test that applies.

[00:26:31] Speaker 00:
Well, I don't think it's up to us to make a determination of prejudicial error.

[00:26:34] Speaker 00:
Waiver is a different matter.

[00:26:36] Speaker 00:
Let me, before we completely run out of time here, come back to 3.105.

[00:26:43] Speaker 00:
I'm not understanding what this regulation has to do with this situation because it's talking about reopening final decisions here.

[00:26:52] Speaker 00:
And we don't have a final decision of the RO since there was an appeal from the decision.

[00:27:03] Speaker 04:
Right.

[00:27:04] Speaker 04:
To answer your question Judge, the parties aren't arguing this under 3.105.

[00:27:08] Speaker 04:
I believe it went to Judge Toronto's broader questions about the capabilities of the Secretary to appeal certain findings.

[00:27:19] Speaker 00:
Okay, but what I'm confused about is that the argument here is that the Secretary could not appeal a favorable finding.

[00:27:26] Speaker 00:
I'm trying to figure out what statute or regulation governs the Secretary's right that is before the new law.

[00:27:34] Speaker 00:
governs the secretary's right to appeal an aspect of an RO decision.

[00:27:42] Speaker 00:
The statute, as Judge Toronto pointed out, is directed only to appeals to the Veterans Court.

[00:27:49] Speaker 00:
3105, it seems to me, is only dealing with final decisions, which this is not.

[00:27:55] Speaker 00:
And so what is the provision that governs the secretary's right to appeal from an RO decision to the board?

[00:28:07] Speaker 04:
Your Honor, I don't believe there is a provision that allows for the Secretary to appeal an RO decision to the board.

[00:28:18] Speaker 04:
I think it's the veteran is the one who has the right to appeal an unfavorable decision.

[00:28:24] Speaker 04:
Favorable decisions are.

[00:28:25] Speaker 00:
It's not the statutory or regulatory limit on the right to appeal.

[00:28:29] Speaker 00:
It's just that the statute and regulations doesn't confer any right to appeal.

[00:28:35] Speaker 00:
That's my understanding.

[00:28:36] Speaker 04:
I don't think there's a path for the Secretary to appeal it under the statute or the regulation, which would have to come under a statute.

[00:28:43] Speaker 04:
So absent an explicit right in either statute or regulation, the Secretary doesn't have that ability.

[00:28:50] Speaker 04:
But because the issue wasn't brief, I'm not... Now finish your thought and I have one final question.

[00:29:00] Speaker 04:
Yes, Your Honor.

[00:29:00] Speaker 01:
uh... date again because but the issue hadn't come up in the party's briefing it would be waived and uh... there's nobody here is arguing that that the secretary that that that that she was in play well okay let me tell you what what's bothering me here is that apparently the question was raised perhaps it wasn't correctly decided in the first place even though it couldn't be appealed and therefore

[00:29:30] Speaker 01:
the request for an earlier effective date, even if otherwise supported, at least arguably supported by the facts, should not be given any favorable review.

[00:29:47] Speaker 01:
where all of this takes us in terms of what's appealed, or it wasn't that it was appealed, but it had to have been criticized.

[00:29:57] Speaker 01:
It certainly would not have been criticized by Mrs. Shuford.

[00:30:05] Speaker 04:
Yes, Your Honor.

[00:30:06] Speaker 04:
And again, whether the initial conferral of benefits on Mrs. Shuford was

[00:30:13] Speaker 04:
correct or not, that decision is not something that is being challenged or the benefits being taken away from Ms.

[00:30:21] Speaker 04:
Schuford.

[00:30:21] Speaker 04:
What she sought were additional benefits in the form of an earlier effective date, and the VA is not required to perpetuate an error that the regional office made and continue the award of benefits simply because there was a mistake in the initial award.

[00:30:39] Speaker 01:
How do they know it's an error unless the VA raises it as an error, which say, we can't appeal it, but you got it wrong?

[00:30:50] Speaker 04:
Well, the VA is not reevaluating that initial decision.

[00:30:56] Speaker 04:
The board looked anew at the claim for an entitlement for an earlier effective date as it's required to do.

[00:31:03] Speaker 04:
because it's a separate statutory entitlement.

[00:31:06] Speaker 04:
The Volkin case that we cited speaks to that.

[00:31:09] Speaker 04:
And based on that review, the board concluded that there was no entitlement here to an earlier effective date based on the plain language of 5121 that says you look at the veteran's file at the time of death and the evidence in that file.

[00:31:24] Speaker 04:
The prior decision granting the shoe hood benefits for both the psychiatric disorder, that's not an issue here.

[00:31:32] Speaker 04:
It also granted her benefits for the hypertensive cardiovascular disease as linked to the psychiatric disorder.

[00:31:39] Speaker 04:
That's not being challenged, but what she's now seeking is additional benefits on top of that.

[00:31:45] Speaker 04:
And the VA is correct to decline to award those.

[00:31:51] Speaker 04:
And this court doesn't have jurisdiction to review that application of lock the back.

[00:31:55] Speaker 04:
And for those reasons, we ask that the decision be...

[00:32:00] Speaker 04:
Mr. Dupuy would be dismissed for lack of jurisdiction, or in the alternative, be affirmed.

[00:32:04] Speaker 01:
Okay, any more questions for Mr. Hellman?

[00:32:08] Speaker 01:
No.

[00:32:10] Speaker 01:
All right, thank you, Mr. Cameron.

[00:32:11] Speaker 01:
You have your rebuttal time.

[00:32:13] Speaker 03:
Okay, Your Honor, thank you.

[00:32:14] Speaker 03:
I would like to respond briefly to these points that he's raised.

[00:32:19] Speaker 00:
Mr. Cameron, before you begin, did you represent the claimant before the Veterans Corps?

[00:32:28] Speaker 03:
I did, Your Honor.

[00:32:29] Speaker 00:
And did you raise before the Veterans Court this question of your ability to address the correctness of the RO's decision about entitlement?

[00:32:47] Speaker 03:
Yes, Your Honor, we did.

[00:32:48] Speaker 03:
And I think we took the position that there was under Section 5121, Mrs. Shuppert was required

[00:32:58] Speaker 03:
to meet her burden of proving her case based on the evidence that was in the veteran's file at the time of his death, the veteran's death.

[00:33:05] Speaker 03:
And she did so, and that's the reason that the VA granted them the claim.

[00:33:11] Speaker 00:
But did you argue to the veteran's court that she hadn't had an opportunity to argue this issue before the board because it was raised by the board's Sue Esponti?

[00:33:24] Speaker 01:
We did.

[00:33:24] Speaker 00:
Where?

[00:33:26] Speaker 00:
Is that in the record here?

[00:33:29] Speaker 00:
Is it in the appendix?

[00:33:31] Speaker 03:
It should be in the appendix.

[00:33:39] Speaker 03:
I should have referred to it in my brief also.

[00:33:41] Speaker 03:
If I could submit that to you later.

[00:33:46] Speaker 01:
Yes, you can send us a letter if you find something that we need to know.

[00:33:51] Speaker 03:
I would like to respond to this question about the board's analysis.

[00:33:59] Speaker 03:
I'm not sure, I've never seen a case where a board, where the VA has actually tried to appeal a decision, an R.O.

[00:34:11] Speaker 03:
decision, you know, except in the case of a fraud or some similar incident or a Q claim.

[00:34:18] Speaker 03:
So I think it's very unusual, but we also argued that the board's analysis of this issue, after the VA

[00:34:27] Speaker 03:
original payable finding was the imposition of a second burden of proof that the law doesn't really require.

[00:34:34] Speaker 03:
It requires only that she prove it one time, and we believe that she did prove it.

[00:34:40] Speaker 03:
That's why the VA granted the claim.

[00:34:43] Speaker 03:
There was also evidence in the record, I think it was from Dr. Lopez's medical opinion, where he

[00:34:57] Speaker 03:
reviewed a prior medical opinion and he concluded, page 25 of the brief, yeah, that Dr. Heredia had related his nervousness and probable stroke back to service.

[00:35:17] Speaker 03:
And so that opinion relating the stroke back to service essentially relates his hypertension back to service.

[00:35:26] Speaker 03:
But in any event, we believe that there was evidence in the file.

[00:35:32] Speaker 03:
First, we believe that the board was improper in reconsidering this issue that she had fully proven before the regional office.

[00:35:46] Speaker 01:
Well, they didn't change it, whether they thought about it or not.

[00:35:50] Speaker 01:
It was not changed.

[00:35:52] Speaker 01:
Isn't that correct?

[00:35:54] Speaker 03:
That's right.

[00:35:55] Speaker 03:
It was not changed.

[00:35:57] Speaker 03:
It was changed in the sense that under the original grant, she was, and under the statute, she should have been entitled to all the accrued benefits that were owed to her husband at the time of his death.

[00:36:14] Speaker 03:
But, you know, because the agency ignored the 1977 application, they granted his benefits effective 2001.

[00:36:26] Speaker 03:
But when the board essentially revised the decision, the board said, well, you know, the regional office granted this, but we're not going to move it back because we don't think, you know, that she really proved her case.

[00:36:39] Speaker 03:
And so essentially the board's decision effectively denied her the benefits between 1977 and 2001 because the board didn't think she had proved her case, you know, even though the regional office did.

[00:36:56] Speaker 03:
So, but the point is, there's really no legal basis for the board to reconsider an issue that was favorably granted to her.

[00:37:11] Speaker 03:
Because I think, to answer your question, Judge Newman, the board's decision did adversely affect her, and it essentially did reverse or revise the VA's grant,

[00:37:26] Speaker 03:
If the VA had seen the 1977 application in the file, they should have assigned the 1977 effective date.

[00:37:35] Speaker 03:
But then after the Board's decision, the Board said, no, we're not going to move the effective date back because we don't think it was properly granted.

[00:37:43] Speaker 03:
So the Board did essentially revise that favorable decision and denied her benefits that she should otherwise have been entitled to.

[00:37:55] Speaker 01:
Okay.

[00:37:58] Speaker 01:
And anything else we need to know, any final words?

[00:38:05] Speaker 03:
Right.

[00:38:05] Speaker 03:
On this lack of notice of the service connection issue, you know, when we appeal the effective date issues, you know, we expected to argue, and we did argue about entitlement to early effective dates, but we had no notice.

[00:38:19] Speaker 01:
Well, continue your talk.

[00:38:20] Speaker 03:
Okay.

[00:38:20] Speaker 03:
We had no notice about the board reconsidering the service connection question.

[00:38:24] Speaker 03:
If we had,

[00:38:25] Speaker 03:
Of course, we couldn't have submitted more evidence, but we could have submitted arguments that may well have convinced the board that it was not appropriate to impose on this woman a second burden to prove the same requirement that she had to prove in order to get the benefit granted initially.

[00:38:46] Speaker 03:
So I think that's pretty much it.

[00:38:48] Speaker 03:
But I think that the board and the Veterans Court also

[00:38:54] Speaker 03:
seriously confused the question of entitlement to service connection and entitlement to under 3.40, 400, and therefore said that since she believed she wasn't entitled to service connection at the time of his death, she shouldn't be entitled to an earlier effective date under 3.400.

[00:39:15] Speaker 03:
So I think there's clearly a misinterpretation of the regulations and the statutes.

[00:39:23] Speaker 01:
Okay.

[00:39:24] Speaker 01:
Thank you.

[00:39:24] Speaker 01:
Any more questions for Mr. Cameron?

[00:39:27] Speaker 03:
Nope.

[00:39:29] Speaker 03:
No.

[00:39:31] Speaker 03:
Okay.

[00:39:32] Speaker 03:
Thank you very much.

[00:39:33] Speaker 01:
Thank you.

[00:39:34] Speaker 01:
Thanks to counsel for both sides.

[00:39:36] Speaker 01:
The case is taken under submission and that completes this panel's argued cases for this morning.

[00:39:45] Speaker 00:
The honorable court is adjourned from day to day.