[00:00:00] Speaker 01:
Our argument today is 20-2174, Jones versus McDonough.

[00:00:06] Speaker 01:
Mr. Herron, please proceed.

[00:00:18] Speaker 03:
Good morning, Chief Judge Moore, Judge Shaw, Judge Stoll.

[00:00:22] Speaker 03:
My name is William Herron.

[00:00:24] Speaker 03:
I'm here for the veteran, Mr. Terry Jones.

[00:00:32] Speaker 03:
If you'd like for me to, I'll remove the mask.

[00:00:36] Speaker 01:
It's your choice.

[00:00:37] Speaker 01:
You can take it off if you feel more comfortable.

[00:00:39] Speaker 01:
You can leave it on if you feel more comfortable.

[00:00:41] Speaker 03:
Thank you, ma'am.

[00:00:46] Speaker 03:
All right.

[00:00:46] Speaker 03:
This morning, I would like to speak to you about pending claim and about notice and about logic.

[00:00:59] Speaker 03:
First of all, the appellant was discharged from his second tour in the Navy in August of 1973.

[00:01:04] Speaker 03:
That's at appendix 14.

[00:01:09] Speaker 03:
Two months after he had been hospitalized by a Navy psychiatrist, Dr. Rader, he was discharged two months after that.

[00:01:24] Speaker 03:
That's at appendix 12.

[00:01:26] Speaker 03:
He filed his first claim for mental condition.

[00:01:29] Speaker 02:
Excuse me, counsel.

[00:01:30] Speaker 03:
I'm sorry?

[00:01:30] Speaker 02:
I wanted to ask you a question.

[00:01:31] Speaker 02:
Yes, ma'am.

[00:01:33] Speaker 02:
In your papers, you're asserting that there was an implicit denial of your client's claim in the 2003 decision.

[00:01:41] Speaker 02:
Why wasn't that an expressed denial?

[00:01:46] Speaker 03:
It wasn't expressed as far as the pending claim is concerned.

[00:01:50] Speaker 03:
It was an expressed denial

[00:01:52] Speaker 03:
of the later claim that he filed in 2003.

[00:01:57] Speaker 02:
So your argument really hinges on whether that denial was also denying the original claim.

[00:02:08] Speaker 03:
Yes, ma'am.

[00:02:09] Speaker 03:
It hinges on whether that later denial.

[00:02:13] Speaker 02:
The 2003 denial.

[00:02:14] Speaker 03:
Yes, ma'am.

[00:02:16] Speaker 03:
Gave the veteran notice that it was also denying his earlier claim.

[00:02:23] Speaker 02:
What about case law that would say that your view is that it doesn't matter if there's case law saying that the later denial of the earlier claim effectively is a denial of the earlier claim.

[00:02:36] Speaker 02:
It doesn't matter.

[00:02:37] Speaker 02:
In your view, there has to be more notice than that.

[00:02:42] Speaker 03:
Yes, ma'am.

[00:02:43] Speaker 03:
And I'm also saying that that's what the Adams case says, that the later denial

[00:02:51] Speaker 03:
Uh, must give the veteran notice of the denial of his earlier claim.

[00:02:57] Speaker 03:
Otherwise he doesn't know, uh, to appeal.

[00:03:02] Speaker 02:
Do you agree that the 2003 decision was addressing the same medical claim that was being made in the earlier?

[00:03:12] Speaker 03:
Uh, it was addressing depression and the, um, the pending claim was, uh, one for depression as well.

[00:03:22] Speaker 03:
But at the time, nobody knew about the pending claim.

[00:03:28] Speaker 03:
The pending claim was not identified until years later, about 15 years later, after the 2003 decision.

[00:03:42] Speaker 03:
The pending claim was not identified until 2018.

[00:03:48] Speaker 03:
So that's another part of our argument, Judge.

[00:03:52] Speaker 03:
though, that there was no logic in the adjudication of a claim in 2003 that wasn't identified until 2018.

[00:04:10] Speaker 03:
But that's the second part of our argument.

[00:04:12] Speaker 03:
Our first argument is that there was not any notice.

[00:04:21] Speaker 03:
So it was 23 years later in 2002 that the appellant filed for service connection for depression.

[00:04:33] Speaker 03:
It's important to note that at the time he did not know.

[00:04:36] Speaker 03:
Nobody knew that he had a pending claim at that point in time.

[00:04:44] Speaker 02:
The veteran knew he had a pending claim, right?

[00:04:46] Speaker 03:
No ma'am.

[00:04:48] Speaker 03:
He didn't know.

[00:04:49] Speaker 03:
Because when he filed his original claim in 1979, he attached Dr. Rader's report.

[00:04:59] Speaker 03:
That's the psychiatrist that had hospitalized him while he was in service.

[00:05:06] Speaker 03:
He attached that medical report as part of his claim.

[00:05:14] Speaker 03:
And he requested that his claim be

[00:05:18] Speaker 03:
adjudicated based on that medical report.

[00:05:23] Speaker 03:
And the medical report turned out to have more than one condition in it.

[00:05:29] Speaker 03:
The medical report diagnosed him with immature personality disorder, but it also

[00:05:41] Speaker 03:
diagnosed him with depression.

[00:05:43] Speaker 03:
And that's what was missed.

[00:05:47] Speaker 03:
He didn't know and neither did the rating agency at that point in time.

[00:05:55] Speaker 04:
Mr. Herron, wouldn't the fact that the 2003 R.O.

[00:06:01] Speaker 04:
rating office had before it the entire claims file, wouldn't that make it clear

[00:06:10] Speaker 04:
as to what had happened in 1979 and then in 1980.

[00:06:18] Speaker 03:
Well, Judge, they had the entire file at that point in time.

[00:06:24] Speaker 03:
But as far as notice is concerned, what they are supposed to do, according to the Adams case that was cited by this court in 2009, they're supposed to give the

[00:06:41] Speaker 03:
the veteran sufficient notice in the later decision the two thousand three decision sufficient notice so that he knows that they're denying his uh... pending claim as well and uh... but it is that the the two thousand three decision or a decision and correct me if i'm wrong please i think didn't did it not flow from a

[00:07:07] Speaker 04:
December of 2002 request to reopen?

[00:07:12] Speaker 03:
Yes, sir, it did.

[00:07:13] Speaker 03:
It was about five months later.

[00:07:16] Speaker 03:
So there was a five or six month gap in time between the time they filed in 2002 and the time that the regional office denied the claim in 2003.

[00:07:35] Speaker 03:
And that denial was an express denial, of course, but it was a denial of the 2002 application.

[00:07:43] Speaker 03:
It didn't deny the pending claim.

[00:07:48] Speaker 04:
I was just looking now.

[00:07:50] Speaker 04:
Where in the record is the record that we have before us in the appendix, the 2002 application?

[00:07:59] Speaker 04:
Do we have that in front of us?

[00:08:03] Speaker 03:
Appendix 18, I believe it is, Judge.

[00:08:07] Speaker 03:
Appendix 18.

[00:08:09] Speaker 03:
Yes, sir.

[00:08:14] Speaker 03:
And then if you'll note that in that application, he was not represented.

[00:08:25] Speaker 03:
And he asked the

[00:08:29] Speaker 03:
regional office to obtain his medical treatment records.

[00:08:34] Speaker 03:
And they did, but they only obtained the current records.

[00:08:40] Speaker 03:
That's Appendix 19.

[00:08:43] Speaker 03:
So they did obtain some records, but certainly not the earlier records.

[00:08:52] Speaker 01:
So, Council, at page 18, you have this 2002

[00:08:58] Speaker 01:
request to reopen, right?

[00:09:00] Speaker 03:
Yes ma'am.

[00:09:01] Speaker 01:
And then at page 20, you have the decision, I think the rating decision, where it expressly denies a claim for major depressive disorder.

[00:09:14] Speaker 03:
Yes ma'am.

[00:09:15] Speaker 01:
But you're saying that denial isn't sufficient?

[00:09:21] Speaker 01:
Why is that denial not sufficient?

[00:09:23] Speaker 03:
Well what we're saying, Judge, is that

[00:09:27] Speaker 03:
Not so much that the denial itself was not sufficient, but that the board didn't make the determination whether the veteran was on notice by that denial.

[00:09:45] Speaker 03:
That's a factual inquiry.

[00:09:49] Speaker 01:
I don't understand that.

[00:09:50] Speaker 01:
The rating officer report says

[00:09:55] Speaker 01:
Based on the evidence reviewed, major depressive disorder is denied.

[00:10:03] Speaker 01:
How could somebody not be on notice that major depressive disorder is denied when it says expressly major depressive disorder is denied?

[00:10:12] Speaker 01:
What am I missing?

[00:10:13] Speaker 03:
I must be misunderstanding something.

[00:10:15] Speaker 03:
He was on notice that his 2002 claim for depression was denied.

[00:10:22] Speaker 03:
Yes, ma'am.

[00:10:23] Speaker 03:
We're not saying that he was.

[00:10:25] Speaker 03:
The question is whether that gave him notice that his pending claim, a claim that he didn't even know that existed at that point in time, was also being denied.

[00:10:38] Speaker 02:
What about the fact that page 820 says that, you know, in discussing the

[00:10:45] Speaker 02:
reasons for the decision, and in particular the service connection for major depressive disorder.

[00:10:50] Speaker 02:
It says, a review of your claims folder shows that a rating decision dated March 5, 1980 denied service connection for immature personality disorder.

[00:11:00] Speaker 02:
And then it goes on.

[00:11:02] Speaker 02:
So therefore, just following up on Judge Schall's question, why doesn't the reference to the review of the claims folder suggest that under Williams, our case law in Williams,

[00:11:13] Speaker 02:
What was happening here was a denial of a later claim, which also denied the exact same claim that it made earlier.

[00:11:23] Speaker 03:
It denied the exact same condition.

[00:11:25] Speaker 02:
Right.

[00:11:27] Speaker 02:
But it's looking, it says a review of your claims folder.

[00:11:31] Speaker 02:
So suggesting, and the claims folder included the 1979 claim.

[00:11:39] Speaker 03:
Well, it did, but it wasn't known at that time.

[00:11:42] Speaker 03:
because it was only in 2018 that the board found that the claim had been pending all that time.

[00:11:52] Speaker 03:
That pending claim had not been recognized until 2018.

[00:11:57] Speaker 02:
So your view is that Williams is inapplicable in this case.

[00:12:01] Speaker 02:
Williams holds that final adjudication of identical second claim subsumed the identical claim and constitutes a final adjudication of the initial claim as well.

[00:12:12] Speaker 02:
Right?

[00:12:12] Speaker 02:
Why doesn't that apply here?

[00:12:15] Speaker 02:
Ma'am?

[00:12:15] Speaker 02:
Why would that case law not apply here?

[00:12:19] Speaker 03:
Well, because for one thing, at the time, in 2003, the pending claim was not known.

[00:12:27] Speaker 03:
It was not identified until 2018 by the board.

[00:12:31] Speaker 03:
The board declared that claim to be pending and declared it to have been unadjudicated.

[00:12:40] Speaker 02:
Even though the identical claim was adjudicated later and our case law says if there's an earlier claim that's pending and then an identical claim is decided on for the same disorder that in fact it is adjudication of the initial claim, even if it's unknown, you would say if it's unknown that that can't apply.

[00:13:02] Speaker 03:
Yes, ma'am.

[00:13:03] Speaker 03:
That's right.

[00:13:04] Speaker 01:
Council, one more question.

[00:13:05] Speaker 01:
I think part of the problem for me is

[00:13:07] Speaker 01:
that in 2018, the board expressly found, and this is a fact finding, and this is at page 75 of the appendix, that the VA did not properly adjudicate the broader claim of service connection for a psychiatric disability filed in 1979 until much later.

[00:13:26] Speaker 01:
The eventual April 2003 denial in that matter was unappealed, became final, based on the evidence of record, and nothing suggests

[00:13:36] Speaker 01:
that the VA received either substance evidence within a year, blah, blah, blah.

[00:13:40] Speaker 01:
So I guess the question is, why isn't this 2018 board decision a conclusion that the 2003 denial was a denial that covered the 1979 claim?

[00:13:54] Speaker 03:
Well, what the board said was that depression had been

[00:14:04] Speaker 03:
considered in 2003.

[00:14:06] Speaker 03:
The board did not say that the earlier claim, the 1979 claim, had been considered in 2003.

[00:14:17] Speaker 03:
It simply said that depression was considered in 2003.

[00:14:23] Speaker 04:
But wasn't depression an element of the 1979 claim, Mr. Aaron, because I was looking at the, you look at Appendix 15,

[00:14:34] Speaker 04:
The statement in support of the claim, and this is in 1979, says, item two, psychiatric evaluation made on June 1573 with medical report.

[00:14:46] Speaker 04:
And we have that evaluation.

[00:14:51] Speaker 04:
contains a reference to possibly depression, but it says no depression, immature personality disorder.

[00:15:01] Speaker 04:
So I mean, isn't it clear that the 79 claim, which everyone knew about, embodied this claim for depression or depressive disorder?

[00:15:15] Speaker 03:
Well, the way I read the regional office's decision there, Judge,

[00:15:22] Speaker 03:
is that, um... Have you seen the R.O.

[00:15:24] Speaker 03:
decision in 80 or 2003?

[00:15:26] Speaker 03:
In 2003, the regional office was saying that there had... was saying that he had not acquired... he had not acquired depression while in service, which is contrary to the 1973 report of Dr. Rader,

[00:15:50] Speaker 04:
Well, no, I think it said the Rader Report, as I read it, stated that there was some indication of depression.

[00:16:04] Speaker 04:
But he found, on the whole, he said there was obvious anxiety and some underlying depression.

[00:16:12] Speaker 04:
This is in appendix 13.

[00:16:17] Speaker 04:
Final conclusion is that there's an immature personality disorder.

[00:16:22] Speaker 03:
That's exactly correct, Judge.

[00:16:25] Speaker 03:
And later, approximately 2018, the board found as a factual matter that depression had been overlooked back in 1980.

[00:16:42] Speaker 03:
And it could be, we don't know, but it could be because

[00:16:47] Speaker 03:
Dr. Rader emphasized immature personality disorder.

[00:16:52] Speaker 03:
He didn't set it out as prominently as he did.

[00:17:00] Speaker 03:
I mean, he didn't set out depression as prominently as he did personality disorder.

[00:17:07] Speaker 03:
So it was missed.

[00:17:08] Speaker 03:
The 1980 regional office missed it, according to the board.

[00:17:17] Speaker 03:
The board found that that claim had been pending.

[00:17:21] Speaker 03:
So.

[00:17:22] Speaker 01:
Mr. Herron, why don't we hear from the government at this point?

[00:17:26] Speaker 00:
Yes, ma'am.

[00:17:36] Speaker 00:
Is that your iPhone?

[00:17:38] Speaker 03:
I'm sorry.

[00:17:39] Speaker 01:
Oh.

[00:17:41] Speaker 03:
You don't need to remove this.

[00:17:44] Speaker 03:
Is it yours?

[00:17:44] Speaker 01:
Yes.

[00:17:45] Speaker 01:
Oh, yeah.

[00:17:45] Speaker ?:
Go ahead.

[00:18:06] Speaker 00:
Good morning, and may it please the court.

[00:18:08] Speaker 00:
We respectfully request that the court dismiss this appeal, or in the alternative, affirm the decision below for two reasons.

[00:18:17] Speaker 00:
First, appellant frames this as a legal argument over the correct way to apply the implicit denial rule, when really this is simply an argument over facts, over which this court does not possess jurisdiction.

[00:18:30] Speaker 00:
Second, if the court does determine that it possesses jurisdiction,

[00:18:34] Speaker 00:
The Veterans Court correctly held that Mr. Jones received sufficient notice in 2003 that his claim for anxiety depression was adjudicated at that time, and that claim became final.

[00:18:47] Speaker 00:
Turning to my first point, this court should dismiss this appeal.

[00:18:53] Speaker 00:
Appellant has made only a factual argument.

[00:18:57] Speaker 00:
This is not a legal question.

[00:18:59] Speaker 00:
This is purely an application of law to facts.

[00:19:03] Speaker 00:
Appellant is asking the court to review whether the implicit denial rule applies in this particular factual situation.

[00:19:11] Speaker 00:
This is not a question over the validity or the interpretation of a statute, regulation, or a rule of law.

[00:19:20] Speaker 00:
And here, the court doesn't even need to get to the question of the implicit denial rule because the Veterans Court specifically stated on page four of its opinion, and this is on appendix page four,

[00:19:33] Speaker 00:
that I believe your honor quoted, nobody implicitly denied anything here.

[00:19:40] Speaker 00:
Rather, the 2003 rating decision expressly and unambiguously stated, service connection for major depressive disorder is denied since this condition neither occurred in nor was caused by service.

[00:19:56] Speaker 00:
Now, that statement on its own

[00:19:59] Speaker 00:
demonstrates that Mr. Jones's claim was denied in 2003.

[00:20:03] Speaker 00:
Even if by some chance Mr. Jones did not know in 1979 that he was filing a claim for anxiety or depression.

[00:20:14] Speaker 01:
Does the Veterans Court get to make these kinds of fact findings?

[00:20:18] Speaker 00:
No, it does not, Your Honor.

[00:20:20] Speaker 01:
So, I mean, that's what I was kind of wondering.

[00:20:22] Speaker 01:
I know we don't get to make these kinds of fact-findings.

[00:20:24] Speaker 01:
I kind of thought maybe the Veterans Court didn't either, right?

[00:20:27] Speaker 01:
That you have to look in whether the Board made the determination.

[00:20:30] Speaker 00:
Yes, and I apologize if I reference the Veterans Court making a factual determination.

[00:20:35] Speaker 00:
You are correct.

[00:20:36] Speaker 00:
It is the Board making these factual determinations.

[00:20:38] Speaker 01:
So, there's no doubt that the Veterans Court says very clearly the Board specifically denied service connection for the major depressive disorder.

[00:20:48] Speaker 01:
And they specifically say that that means the 1979 claim was no longer remained unadjudicated after the 2003 decision.

[00:20:57] Speaker 01:
But where in the 2003 decision is that specific denial?

[00:21:01] Speaker 01:
I assume you're going to point me to page 20 of the appendix.

[00:21:06] Speaker 01:
That's the 2003 decision.

[00:21:09] Speaker 00:
Yes, I also have it at supplemental appendix page 92.

[00:21:26] Speaker 00:
And on supplemental appendix page 93.

[00:21:32] Speaker 04:
I'm sorry, what did you say?

[00:21:34] Speaker 00:
Oh, supplemental appendix page.

[00:21:37] Speaker 04:
Oh, supplemental.

[00:21:38] Speaker 00:
Oh, yes.

[00:21:40] Speaker 00:
Yeah, got it.

[00:21:41] Speaker 00:
And on page 93 of that, under the second bullet point, the board says, or the regional office says, service connection for major depressive disorder.

[00:21:52] Speaker 00:
And there's the sentence in that first paragraph that states,

[00:21:55] Speaker 00:
service connection for major depressive disorder is denied since this condition neither occurred in nor was caused by service.

[00:22:02] Speaker 00:
And it specifically mentions that rating decision from 1980.

[00:22:06] Speaker 01:
I think if I understand Mr. Jones's argument, it is that this is denying his 2002 claim

[00:22:23] Speaker 01:
for major depressive disorder, but not clearly denying the 1979 unadjudicated claim.

[00:22:31] Speaker 01:
I mean, the government's argument is this has nothing to do with the implicit denial rule because there's express denial.

[00:22:37] Speaker 01:
So address his claim that this is not, in fact, an express denial of the 1979

[00:22:43] Speaker 00:
Right.

[00:22:43] Speaker 00:
If we do go to the factual determinations that Mr. Jones's 1979 claim.

[00:22:49] Speaker 01:
I normally can't get to the factual determinations, but neither can the Veterans Court.

[00:22:53] Speaker 01:
So how does this get adjudicated?

[00:22:55] Speaker 01:
If the government comes in and says there was an express denial by the board, and we look and we're like, I don't see an express denial.

[00:23:04] Speaker 01:
That's the case.

[00:23:05] Speaker 01:
What happens?

[00:23:10] Speaker 00:
Well, that would be a question of whether

[00:23:13] Speaker 00:
the implicit denial rule was correctly applied.

[00:23:16] Speaker 00:
And in that case, the implicit denial rule looks at whether the claimant had notice.

[00:23:23] Speaker 00:
Notice of whether a particular claim was adjudicated and whether that claimant had the opportunity for due process to then appeal that claim.

[00:23:32] Speaker 00:
And so the question is, well, was it correctly applied in 2003?

[00:23:38] Speaker 00:
Did that 2003 claim

[00:23:41] Speaker 00:
denied the 1979 claim for anxiety depression.

[00:23:46] Speaker 02:
Are you saying expressly or implicitly?

[00:23:50] Speaker 02:
Could you be a little more clear?

[00:23:51] Speaker 02:
Are you saying expressly or implicitly when you're referring to the April 10, 2003 reading decision?

[00:23:59] Speaker 00:
Yes, that claim explicitly denied.

[00:24:01] Speaker 00:
Why?

[00:24:03] Speaker 00:
Because it stated major depressive disorder is denied.

[00:24:10] Speaker 00:
It also referenced the 1980 decision.

[00:24:13] Speaker 00:
That 1980 decision was looking at examining that 1973 medical report, which was attached to Mr. Jones's 1979 claim.

[00:24:25] Speaker 00:
This was a medical report conducted in Long Beach.

[00:24:30] Speaker 00:
That 1980 claim specifically references that report in Long Beach.

[00:24:36] Speaker 00:
It's saying, and then again in 2003,

[00:24:40] Speaker 00:
the regional office specifically, or I'm sorry, Mr. Jones' 2002 claim specifically states that his condition for anxiety depression began in 1966 and was treated in Long Beach.

[00:24:57] Speaker 02:
Are you relying on any case law, for example, the Williams case?

[00:25:01] Speaker 02:
Is the government relying on that?

[00:25:04] Speaker 00:
Your Honor, I don't remember if we specifically cited Williams in our brief,

[00:25:09] Speaker 00:
But yes, we are relying on the case law that states when there was an explicit denial, there was an explicit denial here.

[00:25:21] Speaker 00:
There's no need to even get to the implicit denial question.

[00:25:24] Speaker 00:
If we do get to the implicit denial question, the question is whether there was sufficient notice, and here there was.

[00:25:32] Speaker 00:
in 2003 that Mr. Jones's claim was adjudicated, and he did have the opportunity for appeal.

[00:25:39] Speaker 02:
Our court in Williams held that the final adjudication of an identical second claim also serves as an adjudication of an initial identical claim.

[00:25:49] Speaker 02:
You're not relying on that?

[00:25:50] Speaker 02:
That's what I understand.

[00:25:51] Speaker 02:
I asked you that question, and I don't think you answered it.

[00:25:58] Speaker 00:
I don't remember if we cited that

[00:26:00] Speaker 00:
case in our brief.

[00:26:01] Speaker 02:
I just want to know if right now as you're standing here, are you relying on that case?

[00:26:05] Speaker 02:
Yes.

[00:26:06] Speaker 00:
Yes, we are.

[00:26:08] Speaker 00:
Yes, that case does apply very well here because this claim for depression was, Mr. Jones made this claim for depression throughout.

[00:26:23] Speaker 00:
When the regional office denied it in 2003, it was referencing his

[00:26:29] Speaker 00:
2002 claim, which stated the claim for anxiety depression treated in Long Beach, which was a reference to that 1973 report attached to Mr. Jones's 1979 claim.

[00:26:47] Speaker 00:
So, again, this is not a legal question the appellant is raising.

[00:26:54] Speaker 00:
This is purely a factual question.

[00:26:56] Speaker 00:
The legal question

[00:26:59] Speaker 00:
here is that there was an express denial, and that was correctly determined below.

[00:27:07] Speaker 00:
Even if we do get to that implicit denial rule and that question, it was clear for two reasons.

[00:27:16] Speaker 00:
First, it was clear to a reasonable person that Mr. Jones's 2002 claim also intended to dispose of that 1979 claim for anxiety and depression.

[00:27:28] Speaker 00:
Again, he specifically referenced the anxiety and depression treated in Long Beach in his 2002 claim and that 2003 decision explicitly denied service connection for anxiety depression.

[00:27:42] Speaker 01:
Can you back up and just tell me again your understanding?

[00:27:45] Speaker 01:
What is our court's jurisdiction over fact findings?

[00:27:48] Speaker 00:
Yes, this court's jurisdiction is looking, it does not have jurisdiction over findings of fact.

[00:27:54] Speaker 00:
This court purely looks at whether

[00:27:57] Speaker 00:
It makes determinations over the validity or the interpretations of statutes, regulations, or rules of law.

[00:28:03] Speaker 00:
Unless, of course, it's related to a constitutional issue, right?

[00:28:06] Speaker 01:
Then we do have fact-finding.

[00:28:08] Speaker 01:
Yes.

[00:28:08] Speaker 01:
OK.

[00:28:09] Speaker 01:
So now, what's the Veterans Court's jurisdiction over fact-findings?

[00:28:12] Speaker 01:
What can the Veterans Court do?

[00:28:15] Speaker 00:
The Veterans Court looks to whether the board correctly made determinations

[00:28:26] Speaker 00:
in applying the law.

[00:28:33] Speaker 01:
I guess I'm trying to understand about fact findings.

[00:28:36] Speaker 01:
Does the Veterans Court have the ability to review board fact findings?

[00:28:41] Speaker 00:
No.

[00:28:42] Speaker 00:
I'm sorry.

[00:28:43] Speaker 00:
The Veterans Court does not have the ability to make its own factual determinations.

[00:28:47] Speaker 00:
The Veterans Court only looks at and reviews the board decisions.

[00:28:53] Speaker 02:
What standard did they apply?

[00:28:56] Speaker 00:
I'm not sure off the top of my head.

[00:29:01] Speaker 01:
So the Veterans Court can review the board fact findings?

[00:29:14] Speaker 00:
I guess it can.

[00:29:15] Speaker 00:
I'm sorry.

[00:29:16] Speaker 00:
The Veterans Court can review.

[00:29:20] Speaker 00:
I guess if we look at what happened here, the Veterans Court determined

[00:29:26] Speaker 00:
that the board correctly stated that there was an explicit denial.

[00:29:32] Speaker 01:
You're saying, well, correctly would sound like de novo, right?

[00:29:41] Speaker 01:
So is that the standard of review that the Veterans Court uses for fact findings that reviews board fact findings de novo?

[00:29:46] Speaker 01:
Yeah, that is correct.

[00:29:48] Speaker 01:
The Veterans Court reviews board fact findings de novo?

[00:29:55] Speaker 00:
I think I've answered that incorrectly.

[00:29:56] Speaker 04:
Page appendix three.

[00:30:01] Speaker 04:
The Veterans Court states, this is the middle of the first full paragraph.

[00:30:08] Speaker 04:
It says, the board's determination as to the proper effective date is a finding of fact that the court reviews for clear error.

[00:30:17] Speaker 04:
And it cites the statute.

[00:30:19] Speaker 04:
So to that extent, the court doesn't make fact findings, but it reviews for clear error a board fact finding, as I would read that.

[00:30:29] Speaker 00:
Yes.

[00:30:29] Speaker 00:
Thank you, Your Honor.

[00:30:30] Speaker 00:
That is correct.

[00:30:34] Speaker 01:
Anything further, counsel?

[00:30:36] Speaker 00:
No.

[00:30:37] Speaker 00:
For these reasons, we respectfully request that the court dismiss this appeal or affirm the decision below.

[00:30:42] Speaker 00:
Thank you.

[00:30:43] Speaker 00:
Thank you.

[00:30:45] Speaker 01:
Mr. Herron, I'll restore two minutes of rebuttal time.

[00:31:05] Speaker 03:
Well, respectfully, I would suggest that the facts that were not found here, or the fact that was not found is whether the veteran had reasonable notice.

[00:31:20] Speaker 03:
Argument was made that it should be clear to a reasonable person that his pending claim had been denied.

[00:31:31] Speaker 03:
That's the fact that wasn't decided.

[00:31:35] Speaker 03:
The board never did decide whether the 2003 claim had given the veteran reasonable notice or notice that a reasonable person would take as notice of denial of the earlier claim.

[00:31:54] Speaker 03:
That fact was never addressed.

[00:31:56] Speaker 01:
The Veterans Court found it was.

[00:31:58] Speaker 01:
Ma'am?

[00:31:59] Speaker 01:
The Veterans Court found it was.

[00:32:02] Speaker 01:
The Veterans Court expressly said the board

[00:32:05] Speaker 01:
found that, and it affirmed it.

[00:32:08] Speaker 03:
Well, the Veterans Court said that the board had found expressed denial of the claim of depression, but neither the board nor the court ever addressed whether that 1979 claim had been addressed in 2003.

[00:32:35] Speaker 01:
said, therefore, the board concluded that although the depression claim had remained pending after 1979, it, the depression claim from 1979, it no longer remained adjudicated after the 2003 rating decision.

[00:32:53] Speaker 03:
As far as depression is concerned, yes, ma'am.

[00:32:58] Speaker 03:
But whether the question, even in Williams,

[00:33:02] Speaker 03:
which wasn't briefed by either party in this case.

[00:33:05] Speaker 03:
Even in that case, the question was notice, notice to the veteran.

[00:33:13] Speaker 03:
And notice has not been determined here.

[00:33:18] Speaker 03:
If the board had determined in the manner that it is supposed to set out in Adams and in Cogburn,

[00:33:30] Speaker 03:
If it had made those determinations of the objective criteria to determine whether a reasonable person would be on notice that his earlier claim was being denied, if that had been done, then the Veterans Court could have reviewed that factual determination under clear error.

[00:33:53] Speaker 03:
But there's never been a determination of whether a reasonable

[00:34:00] Speaker 03:
veteran or a reasonable person would have known from the 2003 decision whether his earlier claim was also being denied.

[00:34:10] Speaker 03:
And that's the issue in Adams or even in Williams is whether the veteran was on reasonable notice that his earlier claim was being denied.

[00:34:23] Speaker 03:
And those are not really the same claims.

[00:34:26] Speaker 03:
It's the same medical condition, granted that.

[00:34:30] Speaker 03:
But it's not the same claim.

[00:34:32] Speaker 03:
In 2003, the veteran was filing a claim based on records that had been generated in 2003.

[00:34:41] Speaker 01:
We're way over your time.

[00:34:45] Speaker 01:
So I thank you for your argument.

[00:34:47] Speaker 01:
I thank both counsel.

[00:34:48] Speaker 01:
We're going to take this case under submission.