[00:00:00] Speaker 02:
Number 21-1868, Jeffrey versus Misana, Mr. DeHakla.

[00:00:07] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:00:10] Speaker 00:
On behalf of Mr. Jeffrey, I first want to thank the Court for this opportunity to present his appeal.

[00:00:16] Speaker 00:
This case is really quite simple and asks the Court to decide what happens when the VA awards a benefit.

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More specifically, what are a claimant's options with respect to his appeal rights when the VA awards that benefit?

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We emphasize that by correctly applying Section 5109A and this court's holding in purple, Mr. Jeffries need hold and this court need not address or reach any of the other issues or arguments presented.

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The Veterans Court erroneously held that because the VA assigned an effective date using clear and unmistakable error, the ratings assigned are forever insulated from review.

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This cannot be right.

[00:00:58] Speaker 00:
Before the RO revised its prior decision and adjusted the effective date of Mr. Jeffrey's compensation award to begin in 2006, Mr. Jeffrey was not entitled to nor did he ever receive any compensation for that time period from 2006 to 2009.

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The law, properly understood, quite sensibly, does not force Mr. Jeffery into the last resort of seeking cue relief just to review an entirely new, non-final determination.

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The Veterans Court and the government in their briefing seem to misunderstand what actually happened in 2013 when VA revised the 2010 decision on the basis of clear and unmistakable error.

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When the RO found a clear and unmistakable error,

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and awarded compensation for his long bar spine effective from 2006.

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Again, VA awarded a new benefit with new ratings from 2006.

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Clear and unmistakable error is limited to reversing or revising only final decisions by the AOJ or the board.

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Here, the VA never adjudicated entitlement to compensation from 2006 to 2009 for his lumbar spine until the 2015 AOJ decision.

[00:02:19] Speaker 00:
Even more compelling, the statute that directs that the 2015 decision has in quoting 5109A subsection.

[00:02:28] Speaker 03:
Mr. Joe, again?

[00:02:29] Speaker 04:
Yes, Your Honor.

[00:02:31] Speaker 04:
So I understand when Mr. Jeffrey was awarded

[00:02:35] Speaker 04:
the 2006 effective date for his claim.

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Was there anything about the change in effective date for his benefits that somehow logically could be said to have impacted the outcome of his rating?

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I mean, is there a nexus between

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changing an effective date and then the possibility of impacting the rating percentage in this case?

[00:03:09] Speaker 00:
In this case, not necessarily, Your Honor.

[00:03:13] Speaker 00:
As opposed to affecting what the severity of this condition is,

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the adjustment of the effective date required the VA to make a new award for that new time period.

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And that's what he appealed.

[00:03:31] Speaker 04:
He appealed the initial rating and on page... I just wanted to confirm that from your side's view, there really isn't any kind of nexus, any kind of connection between the changing of the

[00:03:50] Speaker 04:
of the effective date and the possible reading for a particular injury?

[00:04:00] Speaker 00:
Not necessarily, Your Honor, but I think that... You're saying not necessarily, and I think the answer is just no.

[00:04:09] Speaker 04:
At least there's nothing in this record that would suggest

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Now that the rating is effective as of 2006, in fact, that benefit of being granted an earlier effective date somehow now impacts what the rating could have or should have been.

[00:04:33] Speaker 04:
That seems like an independent separate inquiry that relates to other facts that are,

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unrelated to the assignment of an effective date.

[00:04:48] Speaker 00:
Are you going to say not necessarily again, or are you just going to agree?

[00:04:51] Speaker 00:
Well, to clarify, Your Honor, I think that in reading the Secretary or the government's brief, they are focusing on the rating assigned in the 2010 decision.

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And so when you look at what rating was assigned in 2010, then the adjustment of the effective date does not

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there's no connection or nexus, as you described it, to that decision.

[00:05:17] Speaker 00:
But when they adjust the rating back to 2006, the VA is required not only to determine the proper effective date, but under 5110, 38 U.S.D.

[00:05:27] Speaker 00:
5110, also review on a FAXCOM basis

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What is the severity?

[00:05:35] Speaker 02:
So your argument is that automatically when they set aside the effective date on ground of cue, that opens up the whole decision, and they have to now make a new rating determination.

[00:05:47] Speaker 00:
Yes, Your Honor.

[00:05:48] Speaker 00:
And that's what the statute requires in the portion of PIRCLE, which talked about putting the veteran in the same situation as if the correct decision had been made.

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And the statute, again, and quoting here, the decision has the same effect if the decision had been made on the date of the prior decision.

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So we're not just adjusting the effective date and fixing that.

[00:06:15] Speaker 00:
The VA is required to tell us now by looking at the evidence that existed between 2006 and, in this case, 2009, how severe was his lumbar spine, because they had never told him that yet.

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All that the VA had made a determination of was beginning in 2009, this is how severe your disability, your lumbar spine disability is.

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So, in order to correctly revise the decision, they must not only adjust the effective data, but also tell us this is the severity of your condition.

[00:06:52] Speaker 00:
And it's that second part of that determination that Mr. Jeffrey appealed to the board when he said your 10% is too low from 2006, and you should also assign an award for my radiculopathy.

[00:07:12] Speaker 00:
So again, once the VA revised the prior decision with respect to the board compensation for the lumbar spine,

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That 2010 decision is no more and was replaced by the 2015 revision.

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The Veterans Court overlooked the subsection of Section 5109A that directs the decision, essentially replaces the prior decision that was done in error.

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This means that the entire decision and not just one aspect is appealable.

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In purple, this court emphasized the importance of 5109A-B that a decision that revises, quote, has the same effect as if the decision had been made and highlighted that it had quoted that subsection three times in its prior ruling in purple one.

[00:08:07] Speaker 00:
The key point this court noted was that the board's finding of Q changed the factual and legal background of the entitlement to benefit.

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A big portion of that change in factual and legal background was that the VA made a new determination and made a new award of benefits for his lumbar spine disability from 2006 to 2009.

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What the Veterans Court overlooks is that prior to 2015, the RO again had never awarded any benefits

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for the spinal disability that covered the time period from 2006 to 2009.

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And contrary to the government's argument, Mr. Jeffrey never asked the VA to reverse revise or otherwise review any rating assigned in the 2010 rating decision.

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Rather, he only asked the VA to review the 10% rating assigned beginning in 2006.

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And the assignment of that rating did not happen until the RO correctly applied 3.156C in their 2015 decision.

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And again, not to beat a dead horse, but I do want to emphasize that the 2010 RO decision never considered or adjudicated the amount of compensation available for the lumbar spine from 2006.

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The first time that this benefit was awarded was in 2015, and this award came with all the legal rights to challenge that determination under 7105.

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And that statute permits the claimant to appeal any specific determination upon receipt of notice.

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So we asked this court to find that the Veterans Court erred in its decision that Mr. Jeffrey is not permitted to appeal the 10% rating assigned in the 2015 RO decision.

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The Veterans Court misapplied 5109A and misread PURPLE by failing to recognize that the 2015 decision essentially replaced the 2010 AOJ decision with respect to the lumbar spine claim.

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And the corrective application of 5109A and PURPLE means that when VA awarded a 10% rating from 2006, this represented the very first time that determination was made

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Therefore, Mr. Jeffrey is permitted to directly appeal his determination and is not limited to showing cue.

[00:10:38] Speaker 03:
Okay, thank you, Mr. Nahafaz.

[00:10:41] Speaker 03:
Mr. Carhartt?

[00:10:45] Speaker 01:
May it please the court?

[00:10:48] Speaker 01:
I will begin with the issue that my colleague on the other side focused on.

[00:10:56] Speaker 01:
VA does not

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dispute in principle, the idea that the 2015 R.O.

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decision decided for the first time to grant Mr. Jeffrey benefits between 2006 and 2009.

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It also impliedly concluded that he was entitled to a 10 percent rating for that 2006 to 2009 period, extending back the

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As the effective date was extended back, so too was the rating evaluation determination.

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We also don't dispute that Mr. Jeffrey was permitted to directly appeal the 2015 RO decision to the extent that it addressed this new issue of benefits entitlement between 2006 and 2009.

[00:11:48] Speaker 01:
We would understand that really to be an argument that he was entitled to a staged rating, that there was some difference between his symptomology between 2009 and 2010, which had already been adjudicated by the 2010 RO decision on one hand, and his symptoms between 2006 and 2009, which were adjudicated in the first instance by the 2015 RO decision.

[00:12:15] Speaker 01:
That argument would point to some factual difference in the evidence related to Mr. Jeffrey's condition between 2009 and 2010 on one hand, and 2006 and 2009 on the other hand.

[00:12:31] Speaker 01:
But that's not the argument that Mr. Jeffrey has pursued in this case.

[00:12:36] Speaker 01:
He instead raised the acute claim

[00:12:39] Speaker 01:
Um, before the board, um, he, he identified and his notice of disagreement.

[00:12:45] Speaker 01:
Um, you know, his, his only disagreement was, um, with the 2015 arrow decisions adjudication of his, his Q claim.

[00:12:54] Speaker 01:
Um, he, he, that's an appendix 43, the notice of disagreement.

[00:12:58] Speaker 01:
And he says that the 2015 RO decision didn't consider his Q claim with respect to his rating evaluation, which would naturally refer to his argument that the 2010 RO decision made some sort of clear and unmistakable error.

[00:13:16] Speaker 01:
So the argument we're making is that this issue wasn't before the board.

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This direct appeal wasn't before the board.

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Also, there's no evidence in the record suggesting that there was some difference between Mr. Jeffrey's symptoms between 2006 and 2009 on one hand, and 2009 and 2010 on the other hand.

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At no point in this proceeding, including before this court, as far as I can tell, has he developed any argument along those lines.

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And he also hasn't pointed to any evidence

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that wasn't considered by the 2010 Auro decision that's relevant to this issue that, you know, given the chance to relitigate the 2006-2009 period that he would present to the VA.

[00:14:10] Speaker 01:
So our position would be that the issue wasn't raised below and Mr. Jeffrey hasn't established any prejudicial error with respect to the stage rating, with respect to the availability of the stage rating.

[00:14:24] Speaker 01:
You know, with respect to the availability of the stage rating itself, this court's addressed that in the Risenstein decision and described it as a matter of VA policy rather than a rule of law that depends upon the facts that are found by the VA.

[00:14:43] Speaker 01:
So ultimately, this is a fact issue.

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And Mr. Jeffrey just hasn't established the factual predicate at any point in this case for that argument.

[00:14:54] Speaker 01:
Now, with respect to his argument that this case is governed by Perkel, we disagree with that for some of the reasons that Judge Chen's questions seem to be getting at, which is the lack of a logical connection between the effective date error and the rating evaluation determination.

[00:15:20] Speaker 01:
You know, our position is that Perkel was addressing

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you know, unusual facts where the court thought that the remedy of ordering the VA to consider as a remedy what effect one heir had on another was necessary to put the claimant in the same position that she would have been, but for the heir.

[00:15:43] Speaker 01:
And our breach goes into why our position is that Perkel's distinguishable and doesn't control here.

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So, for those reasons, we don't think that even under this sort of more limited argument that there was the Mr. Jeffries entitled to an adjudication with respect to the 2006-2009 period, we don't think he's entitled to relief on those grounds.

[00:16:19] Speaker 01:
If the court doesn't have any other questions on that point,

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I will move briefly into our reconsideration, our response to his reconsideration argument, which I didn't understand Mr. Dreyfus' counsel to have addressed in his opening argument.

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But our position is that there's nothing in the record suggesting that the VA failed to carry out its reconsideration obligations here.

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There was a 2010 R.O.

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decision.

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that did reconsider Mr. Jeffrey's claims gave him benefits that he didn't previously have.

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There was then a 2015 RO decision that also, you know, gave Mr. Jeffrey benefits that he didn't previously have.

[00:17:06] Speaker 01:
And Mr. Jeffrey hasn't pointed to any reason to thank or any specific evidence that the VA failed to reconsider.

[00:17:15] Speaker 01:
Typically, in a challenge under 3.156A, B, or C, the argument is about whether there's particular evidence that the VA failed to issue a responsive determination with respect to it.

[00:17:29] Speaker 01:
In this case, there's nothing along those lines.

[00:17:36] Speaker 01:
I just wanted to just make two other points with respect to the reconsideration argument to address issues raised in Mr. Jeffrey's reply brief.

[00:17:45] Speaker 01:
One is with respect to our argument that the Veterans Court did not possess jurisdiction to consider a claim other than the Q claim identified in Mr. Jeffrey's notice of disagreement.

[00:17:59] Speaker 01:
Mr. Jeffrey's response really focuses on a separate jurisdictional limitation

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of the Veterans Court, which is that there has to be a decision of the board.

[00:18:10] Speaker 01:
But that wasn't the basis for our jurisdictional argument.

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Our jurisdictional argument related to the limited scope of Mr. Jeffries' NOD, which was focused only on his Q claim.

[00:18:23] Speaker 01:
And I also wanted to briefly address his contention that Chenery kind of that the

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The decision in chennery affects the scope of the of the veteran or this reports review.

[00:18:38] Speaker 01:
We would contend that it doesn't, you know, with respect to his reconsideration argument.

[00:18:44] Speaker 01:
Really, what we're maintaining is that there's no evidence in the record to support.

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his argument.

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So, we're not asking the court to weigh any facts or any evidence on different sides and conduct any impermissible fact-finding.

[00:18:58] Speaker 01:
We're just asking the court to recognize the lack of evidence that supports any argument that the VA failed to reconsider under 3.1560.

[00:19:12] Speaker 01:
If the

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If the court doesn't have any further questions, we ask that the court affirm the Veterans Court's decision.

[00:19:23] Speaker 03:
Okay.

[00:19:24] Speaker 03:
Thank you, Mr. Carhart.

[00:19:25] Speaker 03:
Mr. DeHakos, you have a couple minutes.

[00:19:30] Speaker 00:
Thank you, Your Honor.

[00:19:32] Speaker 00:
So, I want to start my rebuttal by addressing the Secretaries' seem to be conflicting statements that they acknowledge

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that Mr. Jeffrey is entitled to directly appeal the assigned rating in 2006, but that he didn't and instead asked to find Q in that 10% rating.

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And I would submit that the law cannot read a disagreement to raise a Q allegation when Q is not available.

[00:20:06] Speaker 00:
A Q decision is available only in a final decision which has not been appealed.

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If a disagreement is raised with respect to a determination in his notice of disagreement, which he did, then

[00:20:25] Speaker 00:
The law should read that and the board should have sympathetically read it to require or rather to raise a direct appeal under 7105 as opposed to a queue under 5109A.

[00:20:38] Speaker 00:
It makes no legal or logical sense why the board would impose upon the veteran a much more stringent standard of queuing queue when a direct appeal is available.

[00:20:50] Speaker 00:
And in addition to that, by asserting his disagreement

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with the assigned rating, again, sympathetically viewing that as the board is required to do, particularly under its regulations for the substantive appeals, that the board must identify any reasonably raised issue.

[00:21:12] Speaker 00:
And when a direct appeal is available, then the board is required as a matter of law to read that as an appeal of the assigned rating as opposed to a finding of Q.

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The secretary asserts also that never at this court or at the Veterans Court pointed to any evidence that would have required a different rating.

[00:21:38] Speaker 00:
We submit that that's not necessary.

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The issue before the Veterans Court and now here is what is the proper legal standard for the board's review of his disagreement.

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And until the proper legal standard is determined and the board applies that,

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What the evidence shows, we don't know, because the board didn't review it under a benefit of the doubt standard.

[00:22:02] Speaker 00:
They reviewed it under a clear and unmistakable error standard.

[00:22:07] Speaker 00:
And lastly, to address the Secretary of Statement about CURPL and their contention that it does not apply here.

[00:22:16] Speaker 00:
We have never argued that the 2015 decision should, which found Q, should affect any subsequent decision as it did in purple.

[00:22:27] Speaker 00:
Those facts, as they say, were quite unique to that situation.

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However, purple applies because it recognizes that the 2015 RO decision replaced the erroneous 2010 decision

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granted a new benefit, made a new determination with a new right to appeal under 7105.

[00:22:48] Speaker 00:
That, again, as we started our argument today and we'll end it with that, that is really the heart of this issue, is what happens when the board or the regional office revises a prior decision with respect to their ability to appeal those determinations which grant a benefit for the very first time.

[00:23:09] Speaker 03:
Okay, thank you, Mr. Hawkins.

[00:23:11] Speaker 03:
Thank you, Mr. Carhart.

[00:23:12] Speaker 03:
The case is submitted.