[00:00:00] Speaker 00:
Our first case this morning is Yvonne Cruz versus Dennis McDonough, case 2021 through 2030.

[00:00:10] Speaker 00:
Mr. Carpenter, you're reserving, I understand, five minutes of time for rebuttal.

[00:00:15] Speaker 01:
That's correct.

[00:00:16] Speaker 00:
All right, sir.

[00:00:16] Speaker 00:
You may proceed.

[00:00:17] Speaker 01:
Thank you very much, Your Honor.

[00:00:18] Speaker 01:
To please the court, Count Carpenter appearing on behalf of Mrs. Hughes.

[00:00:22] Speaker 01:
Mrs. Hughes' appeal presents an issue of first impression regarding the interpretation of 38 USC 5121A.

[00:00:31] Speaker 01:
This case turns on the question of whether or not to qualify as a substituted claimant under 5121A.

[00:00:40] Speaker 01:
you are or are not filing a derivative claim under the previous version of the statute, 5121A, which limited the ability of a survivor to proceed.

[00:00:53] Speaker 01:
When Congress enacted 5121A, they created a separate path for claimants whose claims previously died when they died to have their claim completed or their appeal.

[00:01:09] Speaker 01:
In this case, Mrs. Hughes made application to the VA to be substituted in her husband's claim that was within the appeal period for the filing of a notice of disagreement on a grant of a total rating or a 100% rating for his service-connected schizophrenia.

[00:01:31] Speaker 00:
Why is it that we should not find that Ms.

[00:01:34] Speaker 00:
Crew's two allegations is not a new claim?

[00:01:40] Speaker 01:
Because to begin with.

[00:01:44] Speaker 00:
There was not a claim pending when she substituted.

[00:01:49] Speaker 01:
No, Your Honor.

[00:01:50] Speaker 01:
She substituted to complete Mr. Cruz's appeal.

[00:01:54] Speaker 01:
And she stepped into his shoes and had every right that Mr. Cruz had.

[00:02:00] Speaker 01:
And Mr. Cruz would have had the right to challenge the effective date assigned based upon a previous clear and unmistakable error.

[00:02:08] Speaker 00:
He never did do that.

[00:02:09] Speaker 01:
before he passed away that's right but he had when he passed away there was no q q claimed pending no your honor but what was pending was the question of whether or not the effective data signed was correct and he was allowed to step into that appeal right

[00:02:26] Speaker 02:
Yes, if you want.

[00:02:28] Speaker 02:
I'm a little fuzzy on the details, but there was a 2009-2010 board decision that granted them 100%, but it only allowed the effective date to be, was it 2009?

[00:02:40] Speaker 02:
2009.

[00:02:41] Speaker 02:
And that was what she stepped in to appeal and say it should be earlier than 2009.

[00:02:45] Speaker 02:
That's correct.

[00:02:46] Speaker 02:
So she was allowed to carry that appeal out.

[00:02:48] Speaker 01:
Yes, she was.

[00:02:49] Speaker 02:
But she wants to make a new argument that

[00:02:53] Speaker 02:
And this is where I'm a little confused.

[00:02:55] Speaker 02:
She's not arguing that the 2010 decision is subject to Q, is she?

[00:02:59] Speaker 02:
No.

[00:03:00] Speaker 02:
Because that's still live.

[00:03:01] Speaker 02:
It's not a final decision.

[00:03:02] Speaker 02:
So she's arguing that the 1961, is it 1961?

[00:03:06] Speaker 01:
I believe it's 1961.

[00:03:07] Speaker 01:
The effective date was 1961.

[00:03:09] Speaker 02:
OK, it was subject to, contained Q. Yes.

[00:03:13] Speaker 02:
But that wasn't part of the appeal of the 2010 decision, was it?

[00:03:19] Speaker 01:
i believe it was your honor because q has been accepted uh... at what number one q is not a client he was a procedural device and that procedural device can be used to establish that a plane has been

[00:03:33] Speaker 01:
of the finality of that claim has been undone.

[00:03:36] Speaker 02:
Well, I get your argument on that point.

[00:03:38] Speaker 02:
But the problem I'm still having is the proceeding that was still live, which allowed her to sub in, was a challenge to the 2010 board decision.

[00:03:50] Speaker 02:
It wasn't a challenge to the 1961 decision, the 1960 decision.

[00:03:54] Speaker 01:
But if Mr. Cruz had been alive, Mr. Cruz would have been able to assert Q on his own behalf.

[00:04:02] Speaker 02:
Wouldn't he have had to file a separate claim of Q with the RO?

[00:04:06] Speaker 02:
No, Your Honor.

[00:04:07] Speaker 02:
Are you sure?

[00:04:08] Speaker 01:
I am absolutely certain I have done it hundreds of times myself.

[00:04:12] Speaker 01:
And that Q claim has been accepted and has been adjudicated.

[00:04:17] Speaker 02:
But you would have had to file the Q claim.

[00:04:19] Speaker 02:
Like, if you're going from, first of all, was the decision, the 1960 decision, it's just an RO decision, isn't it?

[00:04:26] Speaker 02:
Yes, that's right.

[00:04:27] Speaker 02:
Right, so you would have had, on appeal from the 2010 board decision, you can't tell, or the 2010 RO decision, when you go to the board, you can't tell the board that the 2010 decision is, you have to go back to the RO.

[00:04:42] Speaker 02:
No, you have to tell the regional office.

[00:04:43] Speaker 01:
You have to go to the regional office.

[00:04:45] Speaker 01:
And that's what she did.

[00:04:46] Speaker 02:
That's a new claim.

[00:04:47] Speaker 01:
No, Your Honor, it is part of her notice of disagreement with the effective date assigned based upon an allegation that there was a clear and unmistakable error in the 1960 decision, which unlawfully reduced his previously assigned 100% rating for his schizophrenia to 70%.

[00:05:04] Speaker 02:
Do you have a case for the notion that you can, as part of an ongoing appeal to a later board decision, that you can raise Q

[00:05:14] Speaker 02:
as an alternative legal theory for why that decision is not final.

[00:05:18] Speaker 02:
I mean, this sounds like it runs up against Rusek.

[00:05:21] Speaker 01:
Well, it can't run up against Rusek, Your Honor, because Rusek was a decision that was based upon 5121 small a. And the language in Rusek, contrary to the way in which it was quoted in the court's decision, was that even if

[00:05:39] Speaker 01:
5121 because Mr. Rusek passed away.

[00:05:44] Speaker 01:
Mrs. Rusek brought a Q claim that is allowed by VA regulation to establish her entitlement to DIC.

[00:05:53] Speaker 01:
So when she makes her claim for DIC, I'm sorry.

[00:05:56] Speaker 02:
No, no.

[00:05:57] Speaker 02:
I'm just trying to think this through.

[00:05:59] Speaker 02:
So you're not, let me make sure you're not going as far as I think you might be going.

[00:06:04] Speaker 02:
You're not saying because

[00:06:06] Speaker 02:
there's always potential cue claims out there to challenge incorrect decisions, even if they're final, and that there's no time period to file them.

[00:06:18] Speaker 02:
So there are technically still a lot that a survivor can come in at any stage, because the veteran could come at any stage and file a cue claim.

[00:06:29] Speaker 02:
Well, to the extent that- OK, let me ask you this hypothetical.

[00:06:31] Speaker 02:
Let me just, because that may have been a little unclear.

[00:06:35] Speaker ?:
OK.

[00:06:35] Speaker 02:
All this had become final.

[00:06:37] Speaker 02:
He'd lost all this, and he passed away.

[00:06:40] Speaker 02:
He hadn't filed a Q claim at all.

[00:06:42] Speaker 02:
There was no case pending whatsoever.

[00:06:44] Speaker 01:
Absolutely.

[00:06:44] Speaker 02:
Do you think she can come in and say, well, because my husband could have filed a Q claim on effective date to the 60 decision, I still can do it?

[00:06:54] Speaker 01:
No, Your Honor.

[00:06:55] Speaker 02:
So you're just saying that you can use Q as an alternative

[00:06:59] Speaker 02:
grounds for an earlier effective date, even if that had never been raised by the veteran in his appeal to the RO.

[00:07:08] Speaker 02:
But I'm still having a little trouble with that, because he would have had to raise it to the RO.

[00:07:13] Speaker 01:
Right.

[00:07:13] Speaker 01:
And that's where I was trying to go, Your Honor.

[00:07:15] Speaker 01:
In the notice of disagreement, that's where the allegation of clear and unmistakable error was made.

[00:07:21] Speaker 01:
And the regional office,

[00:07:23] Speaker 01:
initially rejected it, and we eventually had to get them to be compelled by the Veterans Court to accept her as a substituted appellant.

[00:07:34] Speaker 01:
And then the regional office itself adjudicated the question of clear and unmistakable error.

[00:07:40] Speaker 01:
They made a decision that there was no clear and unmistakable error.

[00:07:45] Speaker 01:
And at that point in time, Mrs. Cruz.

[00:07:48] Speaker 02:
OK, I understand why you're saying that.

[00:07:50] Speaker 02:
Can we back up just one second?

[00:07:51] Speaker 02:
The notice of disagreement was to the 2010 RO decision.

[00:07:59] Speaker 01:
On the effective data side.

[00:08:01] Speaker 01:
And that was initially rejected because Mr. Cruz had died before the one year.

[00:08:09] Speaker 01:
And I get that.

[00:08:10] Speaker 02:
They were wrong on that.

[00:08:11] Speaker 02:
They had to accept that.

[00:08:12] Speaker 02:
That makes perfectly sense.

[00:08:14] Speaker 02:
But the decision from the RO, he had never raised any argument whatsoever that the 1960 decision contained Q. He had not.

[00:08:26] Speaker 01:
No, Your Honor.

[00:08:27] Speaker 01:
No.

[00:08:28] Speaker 01:
And we're not making any assertion that he is.

[00:08:30] Speaker 02:
The question is how is she subbing in to finish processing of a claim that he has never raised?

[00:08:38] Speaker 01:
Because part and parcel of any claim is the effective date assigned.

[00:08:42] Speaker 01:
It's one of the basic elements of a claim.

[00:08:45] Speaker 01:
The effective date assigned was incorrect as a matter of law because there was a pending claim before that can be established by a clear and unmistakable error in an unlawful reduction.

[00:08:59] Speaker 00:
It sounds to me like you're asking us to establish

[00:09:06] Speaker 00:
is based on the provenance of a claim that's fought by a substitute.

[00:09:12] Speaker 00:
As long as that claim can be traced back to something that was pending or to an earlier dispute, then in your argument, that's enough.

[00:09:25] Speaker 00:
But that's not what the statute says, does it?

[00:09:28] Speaker 01:
I respectfully disagree, Ron.

[00:09:30] Speaker 01:
That's exactly what the statute says.

[00:09:32] Speaker 01:
The statute that was created by Congress that allowed for substitution said that a veteran's claim would no longer die and that the substituted claimant would be able to come in and complete either a claim pending or an appeal.

[00:09:46] Speaker 00:
To complete pending claims.

[00:09:48] Speaker 01:
That's correct.

[00:09:49] Speaker 01:
And part of the pending claim here.

[00:09:51] Speaker 00:
The question here is whether the claim that she brought

[00:09:54] Speaker 00:
was pending or not.

[00:09:56] Speaker 00:
And you're saying, well, it was pending because I can trace it back to an earlier date.

[00:10:02] Speaker 00:
Whereas, well, let me ask you this question.

[00:10:06] Speaker 00:
Is a Q claim a standalone claim with its own set of legal

[00:10:14] Speaker 00:
requirements and factual considerations.

[00:10:17] Speaker 01:
The Veterans Court has held that there is no such thing as a Q claim.

[00:10:22] Speaker 01:
There is no independent Q claim.

[00:10:25] Speaker 01:
It is a procedural device to determine whether or not there was a previous error made that would render a previous decision non-final and allow for the previously pending claim to be part of it.

[00:10:39] Speaker 00:
And to show that.

[00:10:41] Speaker 00:
to succeed on a Q claim, you have to satisfy certain legal requirements.

[00:10:45] Speaker 01:
That's correct.

[00:10:46] Speaker 01:
But that is not a claim.

[00:10:48] Speaker 02:
A claim is- So you do have to identify the decision that contains the error- Which is what we- Point out the clearance.

[00:10:55] Speaker 02:
Yeah, but you're allowed to carry on his claim.

[00:10:59] Speaker 02:
And his claim was filed in 2009, right?

[00:11:02] Speaker 02:
Correct.

[00:11:02] Speaker 02:
And what was the content of that claim?

[00:11:05] Speaker 02:
Was it a new material evidence claim?

[00:11:07] Speaker 01:
No, he claimed that he was entitled to a total rating rather than the 70% rating assigned for his schizophrenia.

[00:11:13] Speaker 02:
Right, so he asked for an increase, and he filed evidence for the increase.

[00:11:18] Speaker 01:
And they found that there was a basis for the assignment of a 100% rating.

[00:11:22] Speaker 02:
But he didn't ask for an earlier effective date for either a 70% or a 100%.

[00:11:28] Speaker 01:
But with all due respect, he couldn't have done that.

[00:11:30] Speaker 01:
You can't ask for an increase claim while at the same time asking for an earlier effective date for something that hasn't happened.

[00:11:38] Speaker 01:
It is only when the VA agrees that he is entitled to the 100% rating

[00:11:43] Speaker 01:
that he is entitled to raise the issue of the final element of a claim, which is the effective date.

[00:11:51] Speaker 02:
And the effective date... Yes, I'm sorry.

[00:11:54] Speaker 02:
I'm not sure I understand.

[00:11:55] Speaker 02:
Had he been getting 70% all the way back to 1960?

[00:11:59] Speaker 01:
He had been assigned a 70% rating.

[00:12:01] Speaker 01:
It was reduced from 100% to 70 and had remained at 70.

[00:12:05] Speaker 01:
He actually had a combined

[00:12:07] Speaker 01:
90 because he had other service-connected disabilities.

[00:12:10] Speaker 00:
Mr. Carpenter, you're into your rebuttal time.

[00:12:13] Speaker 01:
I see that, Your Honor.

[00:12:15] Speaker 00:
Can I finish my answer to Judge?

[00:12:17] Speaker 00:
No?

[00:12:18] Speaker 00:
OK.

[00:12:18] Speaker 00:
I think Judge Mayer may have a question.

[00:12:22] Speaker 00:
No?

[00:12:22] Speaker 00:
OK.

[00:12:22] Speaker 00:
OK.

[00:12:24] Speaker 00:
Let's hear from Counselor Coney.

[00:12:27] Speaker 03:
Good morning, Your Honors, and may I please the Court.

[00:12:30] Speaker 03:
Because Mrs. Cruz first raised the Q claim on appeal after her husband died,

[00:12:35] Speaker 03:
She cannot substitute on that claim.

[00:12:37] Speaker 03:
And so the Veterans Court decision here should be affirmed.

[00:12:40] Speaker 03:
The plain language of 5121A.

[00:12:42] Speaker 00:
Counselor, it seems to me that the statute says that you cannot bring a, the substitute cannot bring a new claim.

[00:12:50] Speaker 00:
But your friend on the other side says that an acute claim is not a claim.

[00:12:55] Speaker 00:
What's your response to that argument?

[00:12:57] Speaker 03:
Respectfully, Your Honor, I think Andre versus Principi really settles this case.

[00:13:03] Speaker 03:
Based on the language of the Q statute and the Q regulation, this court in Andre stated that each specific allegation of Q is a separate and distinct claim.

[00:13:15] Speaker 03:
That was the language of the court used in that case.

[00:13:18] Speaker 03:
And it was based on both the language of 5109A and the regulation issue that states that each Q claim needs to be pled with specificity.

[00:13:28] Speaker 03:
And so each Q claim is a separate and distinct claim.

[00:13:30] Speaker 03:
And that case has been cited numerous times in the Veterans Court and in this court.

[00:13:39] Speaker 03:
And I think this court's decision in RISC really

[00:13:44] Speaker 03:
really highlights that in this context, there has to be a pending Q claim, or there has to be a pending claim for the veteran to substitute into, for the veteran's spouse to substitute into.

[00:13:55] Speaker 02:
I'm still a little confused.

[00:13:58] Speaker 02:
What decision is he saying contains Q, and what is the Q that he's claiming?

[00:14:04] Speaker 02:
She's claiming.

[00:14:06] Speaker 03:
But as I understand it, the Q claim is as to the 1960 rating decision.

[00:14:11] Speaker 02:
And what did the 1960 rating decision?

[00:14:13] Speaker 02:
Is that the one that reduced it from 170%?

[00:14:17] Speaker 03:
That's correct, Your Honor, yes.

[00:14:18] Speaker 02:
And so there's nothing from 1960 until 2009 or 2010 that would have barred the veteran from raising Q as to that decision.

[00:14:31] Speaker 03:
Correct, Your Honor.

[00:14:32] Speaker 02:
So he could have in.

[00:14:35] Speaker 02:
The 2009, I take it, is he submitted evidence saying this should be increased back to 100%.

[00:14:43] Speaker 03:
Yes, Your Honor.

[00:14:44] Speaker 03:
I think that the Appellants' Council here.

[00:14:46] Speaker 02:
He could have at the same time said, and you should never reduce it at all.

[00:14:51] Speaker 02:
If he had done that, if the veteran had said, here's new evidence, and also there's Q in the 1960 decision, you know, you should give me retroactive 100% all the way back, not just based upon this new evidence, then when she subbed in, she could raise that Q-click, right?

[00:15:07] Speaker 03:
Correct.

[00:15:08] Speaker 03:
That would have been a slightly different Q claim than the Q claim that she did raise, because it would have been a Q claim for 100% rating versus a 70% rating, rather than this one, which was asking for an earlier effective date, which still argues that there's Q in the 1960 rating decision.

[00:15:24] Speaker 03:
But the Appellant's Council here relies on there being this one-year appeal period.

[00:15:28] Speaker 03:
And that period is essentially irrelevant to the acute claim, because it can be raised at any time.

[00:15:32] Speaker 03:
The acute claim is not bound to the one-year appeal period in which they would have had to file a notice of disagreement.

[00:15:44] Speaker 02:
I take it your friend's argument is that because he got an earlier

[00:15:50] Speaker 02:
The veteran got an earlier effective date with the 2010 RO.

[00:15:56] Speaker 02:
It's an RO decision in 2010.

[00:15:59] Speaker 02:
I believe it was.

[00:16:00] Speaker 02:
Let's just say 2010, so I don't get caught up into which one it is.

[00:16:03] Speaker 02:
The 2010 decision that he still had a year from that time, the veteran still had a year from that time to file a notice of disagreement.

[00:16:12] Speaker 02:
He died before he could do that.

[00:16:14] Speaker 02:
And so his widow was allowed to step in and file an appeal from anything he could have.

[00:16:20] Speaker 02:
And it seems to me that the argument is that part of that appeal could have included the effective date is wrong because this earlier decision contains Q. And is your view that you can't do that as a basis for why the effective date in the 2010 decision is incorrect?

[00:16:41] Speaker 02:
Your Honor, if- Sorry, just let me- Because he clearly could have said, I filed this claim, the effective date you gave me is wrong.

[00:16:49] Speaker 02:
And she could carry on that, right?

[00:16:52] Speaker 03:
Yes, Your Honor.

[00:16:52] Speaker 03:
If the notice of disagreement that Mrs. Cruz had filed on behalf of her husband did not contain Q, we wouldn't be here.

[00:16:59] Speaker 03:
A substitute party is allowed to process the original claim to completion.

[00:17:06] Speaker 03:
The problem here comes when what she files

[00:17:09] Speaker 03:
is actually not just a notice of disagreement with the 2010 decision, but actually a Q claim as to the 1960 decision.

[00:17:17] Speaker 03:
That's where the problem comes in.

[00:17:18] Speaker 03:
Q has been described as a rare and specific type of error.

[00:17:21] Speaker 03:
We have an entire body of case law specifically on how Q is different from other claims.

[00:17:28] Speaker 03:
But so it's that.

[00:17:31] Speaker 02:
So is your point that what we have to look at, and I almost feel like we're getting sidetracked by this Q argument a little, is that what she can carry on is the processing of his 2009 claim.

[00:17:44] Speaker 03:
Yes, that's correct.

[00:17:44] Speaker 02:
And that was a claim for an increase.

[00:17:46] Speaker 02:
And she can carry on the processing of, he got that, but he didn't think the effective date was right.

[00:17:52] Speaker 02:
And so he can make any arguments for an early effective date that were permitted by that 2009 claim.

[00:18:00] Speaker 03:
That's correct, Your Honor, yes.

[00:18:02] Speaker 03:
The substitute party can continue the claim that's pending, but the Q claim isn't what was pending.

[00:18:10] Speaker 03:
There was no Q claim pending at the time of his death.

[00:18:13] Speaker 03:
And I believe.

[00:18:15] Speaker 02:
And so even if he hadn't passed, and I'll ask your friend about this too, but if the veteran hadn't died, and if he had appealed

[00:18:29] Speaker 02:
effective date from the 2010 decision relating to the 29 claim for increase.

[00:18:34] Speaker 02:
In your view, could he have raised a Q claim in that appeal, or would he have had to file a separate allegation of Q to the board alleging Q in the 1960 decision?

[00:18:46] Speaker 03:
Well, I think it would have followed the same path as what actually happened, which is that he could have raised

[00:18:54] Speaker 03:
the allegation of Q, which would have ultimately have been remanded to the RO for decision in the first place, which is what happened in this case, was that they remanded the Q claim to the RO to decide it in the first instance.

[00:19:04] Speaker 03:
But if there was an argument of Q for an earlier effective date, Mr. Cruz could have raised that at any time.

[00:19:10] Speaker 03:
It didn't have to be within that one year period necessarily following the 2010 decision.

[00:19:16] Speaker 03:
But yes, if he had raised it, again, we wouldn't be here, because then she could be continuing to process that claim to completion.

[00:19:24] Speaker 03:
But there is no claim pending at the time of his death.

[00:19:27] Speaker 03:
And that's where the problem with the language of 5121A comes in.

[00:19:31] Speaker 03:
And this court in Rusek explained.

[00:19:35] Speaker 00:
I think the question was, could he have brought it in?

[00:19:40] Speaker 00:
if he had been alive.

[00:19:43] Speaker 03:
Could he have brought it into the board in the first instance?

[00:19:46] Speaker 03:
Yeah.

[00:19:46] Speaker 03:
I think the claim would have to be decided by the RO, which is why the board, in this case, remanded to the RO the Q claim to decide the Q claim in the first instance.

[00:19:57] Speaker 02:
And so in your view, even if he had raised it, it really wouldn't have been part of the appeal of the 2010 decision.

[00:20:05] Speaker 02:
It would have been sent back to the RO as a separate Q

[00:20:09] Speaker 02:
Yes, Your Honor.

[00:20:12] Speaker 03:
Yeah, that's how I understand it, that the RO would have had to decide the Q claim in the first instance.

[00:20:17] Speaker 03:
And here, when the RO looked at the Q claim, determined that it had not been pending at the time of his death.

[00:20:23] Speaker 03:
I think the Appellant's Council

[00:20:28] Speaker 03:
claimed that during that one year period after Mr. Cruz died that his surviving spouse had every right that he had.

[00:20:36] Speaker 03:
And I think that that is a statement that's too broad.

[00:20:38] Speaker 03:
And it's a statement that's repeated in his reply brief at page three, that he was able to take any action

[00:20:43] Speaker 03:
that Mr. Cruz could have taken if he was alive.

[00:20:45] Speaker 03:
And I don't think that's what the statute says.

[00:20:47] Speaker 03:
I think that's way too broad a reading of what the language of 5121A says.

[00:20:52] Speaker 03:
Mrs. Cruz could not have raised a new claim for a new disability or a new injury.

[00:20:59] Speaker 03:
She could not, under the language of the regulation, could not expand the claim, could not add new issues.

[00:21:05] Speaker 03:
And you're really limited to processing what it is that's pending at the time of the veteran's death.

[00:21:10] Speaker 03:
And here, there was no acute claim pending.

[00:21:13] Speaker 03:
There was no argument as to the 1960 decision pending.

[00:21:16] Speaker 03:
And so we think that the Veterans Court was correct to find that she could not complete that claim.

[00:21:24] Speaker 00:
So what do you mean by pending?

[00:21:26] Speaker 00:
Is that an issue that's been litigated or has been briefed, has been put before the court?

[00:21:34] Speaker 00:
I am concerned that we don't say that a substitute cannot bring any new claims, and then that effectively shuts out the veteran out of court.

[00:21:46] Speaker 00:
And we don't want to do that if there's something pending.

[00:21:50] Speaker 00:
So I'm concerned over how we treat the word pending here.

[00:21:55] Speaker 03:
Well, Your Honor.

[00:21:57] Speaker 03:
I think that, again, because the decision that came out in 2010 was not final at the time that the veteran died, the substituted party could have filed a notice of disagreement as long as it was within that one year period of time in order to continue that claim.

[00:22:20] Speaker 03:
to completion.

[00:22:21] Speaker 02:
So it's a claim that was filed and not final that we looked to determine the limits of what was pending?

[00:22:28] Speaker 03:
Yeah, I think you would look to whether there was a final decision.

[00:22:34] Speaker 03:
So here, because the 2010 decision was not yet final at the time that he died,

[00:22:42] Speaker 03:
that there could be a notice of disagreement filed as to that, as long as it did not contain a new Q claim.

[00:22:49] Speaker 03:
We wouldn't be here arguing if it had just been a notice of disagreement.

[00:22:53] Speaker 02:
But the 1960 decision was final, and there's been no attempt to challenge it or reopen it yet.

[00:23:01] Speaker 02:
If he had, if he'd separately filed or raised an allegation of Q, then that would be pending too.

[00:23:07] Speaker 02:
That's correct.

[00:23:08] Speaker 02:
And then she could have subbed in on that.

[00:23:10] Speaker 02:
Yes, Your Honor.

[00:23:11] Speaker 02:
Anything else?

[00:23:13] Speaker 03:
No.

[00:23:14] Speaker 03:
Your Honor, we still have no further questions.

[00:23:15] Speaker 03:
We'd ask the Veterans Court to be affirmed.

[00:23:17] Speaker 03:
Thank you.

[00:23:21] Speaker 00:
Mr. Carpenter, you have three minutes.

[00:23:23] Speaker 00:
We'll restore you to four.

[00:23:25] Speaker 01:
Thank you, Your Honor.

[00:23:26] Speaker 01:
May it please the Court, I believe that the Secretary's, excuse me, the Department of Justice attorney, misspoke or at least didn't correctly state

[00:23:37] Speaker 01:
the interpretation that the secretary has already made of 5121A.

[00:23:44] Speaker 01:
And I would refer the court's attention to 38 CFR 3.1010F2.

[00:23:49] Speaker 01:
And at F2, it specifically says involving the adjudications involving a substitute that an expansion of a claim is not permitted.

[00:24:02] Speaker 01:
And then it says that a substitute may not add an issue

[00:24:06] Speaker 01:
or expand the claim.

[00:24:09] Speaker 01:
It says, however, a substitute may raise new theories of entitlement in support of the claim.

[00:24:17] Speaker 01:
And that's precisely what she did by using the Q procedural device to establish a new theory that the veteran's claim has been pending.

[00:24:30] Speaker 01:
One of the things that the board decision said was they made a review and said there was nothing pending.

[00:24:35] Speaker 01:
There was no informal claim.

[00:24:37] Speaker 01:
There was nothing that was submitted that was left unadjudicated.

[00:24:41] Speaker 01:
But that doesn't include, and then they refuse to adjudicate, the question of whether or not there was an unlawful reduction.

[00:24:50] Speaker 01:
And that was a new theory of why the 100% had been in place from 1961 until the date in which it was finally granted.

[00:24:59] Speaker 02:
We are dealing here.

[00:25:01] Speaker 02:
Sorry, Your Honor?

[00:25:04] Speaker 01:
Because it's not a claim, Your Honor.

[00:25:06] Speaker 01:
It can't be a new claim.

[00:25:08] Speaker 01:
as a matter of law, because a Q allegation.

[00:25:13] Speaker 02:
OK, I don't want to get caught up in a debate about this, but the 1960 decision was filed.

[00:25:19] Speaker 02:
Yes, it was, Your Honor.

[00:25:20] Speaker 02:
And so absent some kind of challenge to the 1960 decision, you couldn't reopen it.

[00:25:29] Speaker 01:
That's correct, Your Honor.

[00:25:30] Speaker 02:
Right.

[00:25:30] Speaker 02:
And when the veteran filed his claim.

[00:25:32] Speaker 01:
Well, I'm sorry.

[00:25:33] Speaker 01:
That's not quite correct, Your Honor, because this was an increased claim.

[00:25:36] Speaker 01:
There's no reopening requirement for increase.

[00:25:38] Speaker 01:
You can always ask for an increase.

[00:25:41] Speaker 02:
But if you wanted to say the 1960 reduction, it was a reduction.

[00:25:45] Speaker 01:
It was a reduction.

[00:25:46] Speaker 02:
If you wanted to say that was wrong and it should never have been reduced.

[00:25:49] Speaker 01:
Yes.

[00:25:50] Speaker 02:
You would have had to file a claim saying the 1960 decision contained Q.

[00:25:55] Speaker 01:
I don't think that categorical statement is accurate, Your Honor.

[00:25:59] Speaker 01:
The veteran could have.

[00:26:00] Speaker 02:
I don't want to get a debate into that.

[00:26:03] Speaker 02:
I know you disagree, but hypothetically, I want to get to the questions that I think are pertinent to here, even if you disagree on that.

[00:26:13] Speaker 02:
Let's assume that's correct.

[00:26:14] Speaker 02:
When he filed his claim in 2009, he wasn't challenging the 1960 decision.

[00:26:21] Speaker 02:
He was asking for an increase from the 70% he had to 100.

[00:26:27] Speaker 02:
Was he submitting new evidence to show the increase?

[00:26:30] Speaker 01:
Well, he had to in order to show that his disability was or should have been at 100%.

[00:26:36] Speaker 02:
So the claim he filed in 2009 was a claim for increase.

[00:26:41] Speaker 01:
Yes, Your Honor.

[00:26:42] Speaker 02:
It wasn't a claim for error in an already final decision.

[00:26:46] Speaker 01:
No.

[00:26:46] Speaker 01:
But why aren't those two separate claims?

[00:26:52] Speaker 01:
3.110 F2, in which the secretary says a substitute may raise new theories of entitlement to support the claim.

[00:27:02] Speaker 01:
The underlying claim is for his entitlement to 100% from 1961, when it was unlawfully reduced to the present.

[00:27:10] Speaker 02:
His underlying claim was a claim for increase from 70% to 100%.

[00:27:13] Speaker 01:
That's correct.

[00:27:15] Speaker 01:
And if his 100% is restored, then it has been increased.

[00:27:20] Speaker 01:
And the question is whether that was or wasn't lawful.

[00:27:24] Speaker 02:
I understand your argument.

[00:27:26] Speaker 01:
Unless there's any further questions from the panel.

[00:27:28] Speaker 01:
Thank you very much, John.

[00:27:30] Speaker 00:
We thank the parties for their arguments.