[00:00:00] Speaker 05: Our next case for argument is 21-2088, Penley versus McDonough. [00:00:08] Speaker 01: May it please the court? [00:00:09] Speaker 01: Kenneth Carpenter appearing on behalf of Ms. [00:00:12] Speaker 01: Tracy Penley. [00:00:14] Speaker 01: Ms. [00:00:14] Speaker 01: Penley's case deals with two questions of interpretation of rules of law created first by this court in implicit denial, and secondly, the issue of exhaustion rule of law, beginning with the [00:00:28] Speaker 01: implicit denial rule, the Veterans Court made a clear error of law by affirming the board's use of the implicit denial rule. [00:00:38] Speaker 01: The implicit denial rule is, in essence, a notice provision. [00:00:43] Speaker 01: It requires that there be a basis for a reasonable person [00:00:48] Speaker 01: to have concluded that there was a decision by the VA on the question of whether or not there was entitlement to a rating based upon unemployability. [00:01:01] Speaker 01: Ms. [00:01:02] Speaker 01: Penley never received a rating decision, never received a notice that the VA had ever addressed or decided the question of entitlement to TDIU. [00:01:12] Speaker 03: As a consequence, she never received a rating decision. [00:01:16] Speaker 01: On TDIU, that's correct. [00:01:18] Speaker 01: Oh, on TDIU. [00:01:18] Speaker 01: On TDIU, on the issue of TDIU. [00:01:21] Speaker 01: Obviously, had she, then there would be no implicit denial rule. [00:01:24] Speaker 03: She received a rating decision, but it was based on the right hip prosidensis. [00:01:28] Speaker 01: Right. [00:01:28] Speaker 01: And the ratings decisions that she received, Your Honor, were dealing with issues of reduction of rating, and then ultimately an increase in rating [00:01:39] Speaker 05: The first decision was based upon whether or not... If her TDIU claim was based exclusively on the right hip disability, and if her right disability was adjudicated as only 30% disabling, how could she secure TDIU benefits? [00:01:58] Speaker 05: through 4.16b, Your Honor, by referral to the director for a review as to whether or not her disability alone from- A 30% disability on a single- a single disability, like rated at 30%, are you telling me that could still result in complete unemployability? [00:02:21] Speaker 05: Yes, Your Honor. [00:02:22] Speaker 05: Such that she could get benefits? [00:02:23] Speaker 01: Yes, Your Honor. [00:02:24] Speaker 04: Any- Regulation also points out that [00:02:27] Speaker 04: You know, you're not entitled to TDIU absent a finding of a disability rating at 60% or higher. [00:02:34] Speaker 01: No, you're not. [00:02:35] Speaker 01: That's under 416A. [00:02:37] Speaker 01: Under 416B, it says at any rating. [00:02:42] Speaker 01: and that the rating, if it doesn't meet the requirements of A, can be considered but must be considered by the director of compensation under the provisions of 416B. [00:02:52] Speaker 04: So even if the right hip was rated at 10%, you would still be saying, well, there needs to be a TDIU consideration. [00:03:05] Speaker 01: Yes. [00:03:06] Speaker 01: Well, not needs to be a consideration, but the director would be responsible for making a determination as to whether or not that 10% rating... It needs to be kicked over to the director every single time there's a rating lower than 60%. [00:03:20] Speaker 01: Well, under the case law before the Veterans Court, I believe it now says where there's a reasonable possibility that the condition could have resulted in unemployability. [00:03:31] Speaker 04: What would be the theory behind a 10% rating having, nevertheless, a theory for total disability in an unemployability context? [00:03:43] Speaker 01: Many of the diagnostic codes assign ratings for, for instance, in muscle conditions movement. [00:03:55] Speaker 01: And that does not necessarily extend to how that movement would or would not impact an ability to secure or follow substantial gainful occupation. [00:04:05] Speaker 04: I thought there's case law that says [00:04:08] Speaker 04: As a general matter, if you get a rating of less than 100%, then that's also an implicit denial of a rating higher than the rating you've been given, including a TDIU rating. [00:04:24] Speaker 04: Am I misunderstanding the law? [00:04:27] Speaker 01: I cannot, Your Honor, off the top of my head, recall a case that says it in that fashion. [00:04:34] Speaker 04: Locklear doesn't say it like that? [00:04:38] Speaker 04: As a general matter, when you receive a rating that's less than 100%, that's an implicit denial of a rating higher than the rating you were given, up to 100%, including TDOU. [00:04:52] Speaker 04: That Locklear doesn't say that? [00:04:54] Speaker 04: Or you don't remember? [00:04:54] Speaker 01: Well, I believe there is. [00:04:56] Speaker 01: No, Your Honor, you're correct. [00:04:57] Speaker 01: There is language in Locklear that says that. [00:04:59] Speaker 01: I'm sorry. [00:04:59] Speaker 01: I thought you were talking about this court's case law. [00:05:01] Speaker 04: Well, we're talking about implicit denials. [00:05:03] Speaker 04: And we ourselves have recognized that you can have implicit denials. [00:05:09] Speaker 04: And I guess what I'm trying to understand right now is, [00:05:13] Speaker 04: I'm trying to locate what is the legal issue as to this implicit denial question that we have jurisdiction here. [00:05:25] Speaker 04: I was having trouble figuring out, based on your blue brief, what is it that we can actually consider here given that we're restricted and constrained from considering applications of law to fact. [00:05:39] Speaker 01: Well, the question becomes whether or not it was raised before the agency. [00:05:45] Speaker 01: And if it was raised before the agency, then there should have been a decision. [00:05:50] Speaker 01: It was raised before the agency. [00:05:54] Speaker 01: And the board, in its decision, expressly found, let me get the specific statement, in the board decision on appeal, [00:06:09] Speaker 01: It said, upon review of the record, the board finds that the veterans' February 1996 application, her original application, raised an informal claim of TDIU. [00:06:21] Speaker 01: Thus, the board finds the veterans' February 1996 application included a claim for TDIU. [00:06:29] Speaker 04: Nobody's disputing that. [00:06:30] Speaker 04: The question is, what is the legal question that we can review here as to what [00:06:40] Speaker 04: found, which was that there was an implicit denial of the informal TDIU clause. [00:06:46] Speaker 01: In order to make that finding, Your Honor, consistent with this court's jurisprudence in both Adams and De Schotel, [00:06:52] Speaker 01: There has to be a basis for a reasonable person to understand that there was a decision. [00:06:59] Speaker 01: And in this case, there was no reasonable basis in the record for Ms. [00:07:04] Speaker 01: Penley to understand that the VA had ever decided the question of TDIU after the board [00:07:13] Speaker 01: Acknowledge that it had been presented. [00:07:15] Speaker 01: I'm sorry, Your Honor. [00:07:16] Speaker 00: That's OK. [00:07:16] Speaker 00: I'm sorry for interrupting you, but I wanted to make sure I got to ask my question, which is why isn't that a question of application of law to fact? [00:07:23] Speaker 00: What you described, which is saying that she did not have implicit notice or didn't have notice, why isn't that a question of application of law to fact or a factual question? [00:07:36] Speaker 01: Because this is a rule of law, and this court has jurisdiction over rules of law to determine whether or not that rule of law was correctly applied. [00:07:46] Speaker 01: And in order to be correctly applied under this court's jurisprudence, there must be evidence that a reasonable person would have been on notice based upon the notices that were given her during the adjudication that there was [00:08:03] Speaker 01: a decision that denied her TDIU. [00:08:06] Speaker 01: And if I could just go over with, Your Honor, the specific decisions that were made. [00:08:11] Speaker 01: The decisions that were made in this case are in the record at 41 to 42, February 1997 decision. [00:08:21] Speaker 01: That decision was on a reduction of rating. [00:08:24] Speaker 01: and that her claim was denied because she failed to report. [00:08:30] Speaker 01: The next decision is May of 1997 at pages 43 to 44. [00:08:35] Speaker 01: That decision was that an evaluation greater than the current rating of 10% was not just denied, but the condition was decreased to 0%. [00:08:51] Speaker 01: Therefore, at that point, there was no mention of anything that would have inferred a decision on TDIU. [00:08:59] Speaker 01: And finally, in 1999, the decision was to grant her, from her reduced rating of 0%, a 30% rating. [00:09:09] Speaker 05: And in that discussion- Just out of curiosity, when she was reduced to a 0% rating, do you really read the regulation as permitting a person who is entitled to a 0% rating to also simultaneously get TDIU? [00:09:27] Speaker 01: I do, Your Honor. [00:09:29] Speaker 01: You do? [00:09:29] Speaker 01: I do, because- Zero. [00:09:31] Speaker 05: Zero rating. [00:09:31] Speaker 05: You have zero- Oh, I'm sorry. [00:09:34] Speaker 01: I'm sorry. [00:09:34] Speaker 01: No, I misunderstood the question. [00:09:37] Speaker 01: that when it is reduced to zero, I don't believe there could be a reasonable expectation. [00:09:43] Speaker 01: But Ms. [00:09:44] Speaker 01: Penley was challenging that reduction and had challenged the reduction by introducing evidence that that condition had worsened. [00:09:56] Speaker 01: And there were multiple submissions. [00:09:58] Speaker 05: When it was reduced to zero, which it was, [00:10:02] Speaker 05: Why wasn't that an implicit denial of her TDIU as well, since you can't get TDIU when you have zero disability? [00:10:10] Speaker 01: Because the claim had not ended. [00:10:12] Speaker 01: The claim was ongoing as to what the appropriate rating was, and that reduction to zero was corrected by restoring her rating [00:10:23] Speaker 01: to 30%. [00:10:24] Speaker 01: And upon the restoration of that, then the issue of TDIU continued to be part and parcel of. [00:10:31] Speaker 05: So they should have reconsidered the implicit. [00:10:33] Speaker 05: Are you saying even if there was an implicit denial of TDIU when they rated her at 0, that they should have had to reconsider that when they changed her rating to 30? [00:10:43] Speaker 01: Yes, Your Honor. [00:10:45] Speaker 01: Because the concept here, particularly as it relates, [00:10:49] Speaker 01: to the issue exhaustion question of 3.156b is whether or not this was a pending claim. [00:10:55] Speaker 01: And if this was a pending claim from the date of the original claim in January of 1996, then that new evidence, which was never considered, particularly as to the references in the record to her inability to work, which is in Appendix 33, stating that the last date she worked was October of 1995. [00:11:19] Speaker 05: So Mr. Carpenter, it seems like your challenge to me is really one of whether or not there can ever be implicit denial of a TDIU claim. [00:11:33] Speaker 05: How could there be? [00:11:33] Speaker 05: The rule that you would like us to adopt, how could there ever be implicit denial of a TDIU claim? [00:11:39] Speaker 01: Respectfully, I'm just asking this court to follow the existing case law, which says that a reasonable person must have been able to understood that there was a denial of TDIU by the VA. [00:11:54] Speaker 01: No VA rating decision ever did that. [00:11:57] Speaker 01: No notice that she was ever provided indicated that, so that she or any other reasonable person would be able to determine that TDIU had been denied. [00:12:07] Speaker 01: I'm sorry, I'm into my rebuttal time. [00:12:08] Speaker 01: I'd like to reserve the back. [00:12:10] Speaker 05: No problem. [00:12:11] Speaker 05: OK, counsel for the government. [00:12:14] Speaker 02: May it please the court. [00:12:15] Speaker 02: I'd like to start with a jurisdictional issue, because I believe that this court has squarely addressed the type of argument the appellant just made here at the lectern, which is, at what point does this court have jurisdiction over rule of law issues? [00:12:28] Speaker 02: And has this court explained in Wilsey [00:12:30] Speaker 02: that the distinction is whether the Veterans Court applied the correct rule of law at all, whether it was even eligible for application, in which case this court can review that question. [00:12:40] Speaker 02: But if the question is how that rule of law was applied when there is no question that the rule was available and relevant, that is something that is beyond this court's jurisdiction. [00:12:49] Speaker 02: And as Ms. [00:12:49] Speaker 02: Penley explained in her briefing in an argument here, that is really the thrust of her argument [00:12:54] Speaker 02: the application of the implicit denial rule, whether or not the notices Ms. [00:12:58] Speaker 02: Penley received would have put a reasonable person on notice that her TDIU claim had been denied, that is the thrust of her disagreement with the proceedings before the board and the Veterans Court. [00:13:07] Speaker 02: And that is something this court lacks jurisdiction to review. [00:13:11] Speaker 02: There are a handful of arguments that theoretically could be within this court's jurisdiction. [00:13:15] Speaker 02: I just want to quickly address them to make sure that the government's position on those is understood. [00:13:20] Speaker 02: There is a question, potentially, as to whether implicit denial rule was available at all. [00:13:25] Speaker 02: That is something that did come out, at least, through Ms. [00:13:27] Speaker 02: Penley's reply brief at page 7, where she said the issue is whether the board erred by implying the implicit denial rule in the first place, not whether the test was applied correctly. [00:13:37] Speaker 02: But on the main point there, as this court said in Monroe, an express discussion of any informal claims is not necessary for a denial. [00:13:44] Speaker 02: Obviously, a claim can be denied implicitly without an explicit discussion. [00:13:47] Speaker 02: That's the entire point of the rule. [00:13:50] Speaker 02: There is also some illusion in Ms. [00:13:53] Speaker 02: Penley's brief, although not directly. [00:13:54] Speaker 02: She made this point more directly below to the Veterans Court, that the point that this court made in the Andrews decision in 2016, which was unpublished at 646, Fed Appendix 101, [00:14:07] Speaker 02: made the point that if VA took the position that there was never an informal claim presented at any point during the proceedings, VA can't then turn around and say, oh, but in fact, it was implicitly denied as well. [00:14:18] Speaker 05: Why isn't the question of law that Mr. Carpenter is raising on behalf of his client this question about whether or not any rating less than 100% should automatically be understood to be a decision on TDIU? [00:14:35] Speaker 05: That is a question of law, right? [00:14:37] Speaker 02: That could potentially be a question of law, Your Honor. [00:14:39] Speaker 05: Because the Veterans Court has held that as a legal principle. [00:14:40] Speaker 05: And in fact, it's laid out on page six and seven of the opinion in this case. [00:14:44] Speaker 05: We've never said that. [00:14:45] Speaker 05: We have never held that as a matter of law, any rating decision that is less than 100% implicitly denies TDIU. [00:14:52] Speaker 02: That is correct, Your Honor. [00:14:53] Speaker 05: And that is one of his arguments. [00:14:55] Speaker 05: Is it? [00:14:55] Speaker 02: That is one argument that could be fairly read from the briefing, Your Honor. [00:14:58] Speaker 02: And what I would point to. [00:14:59] Speaker 02: Where is that in? [00:15:00] Speaker 02: Ms. [00:15:00] Speaker 02: Penley's briefing. [00:15:02] Speaker 04: Well, Your Honor, they're challenging the Locklear rule. [00:15:06] Speaker 02: I don't understand them to be challenging Locklear directly. [00:15:09] Speaker 02: I think what Ms. [00:15:09] Speaker 02: Penley was saying, as Chief Judge Moore suggested, was that you cannot interpret this categorically, that there has to be some amount of discretion and flexibility. [00:15:17] Speaker 02: I believe that that is consistent with the jurisdictional argument the government's making, that here it's a misreading of the Veterans Court decision to say they were applying a categorical rule. [00:15:26] Speaker 05: The Veterans Court relied... Because is Mr. Carpenter correct in his representation to us about 4.16B, namely that it expressly permits TDIU awards at the director's discretion, even for disabilities that are rated below 60%, say? [00:15:43] Speaker 02: It could, Your Honor. [00:15:44] Speaker 02: And I would point you towards the first decision that's at issue here in the appendix, and that's [00:15:51] Speaker 02: Appendix 49 to 51, because I believe if you look at those, you will see that both avenues for TDIU benefits were implicitly addressed and rejected in that decision. [00:16:02] Speaker 02: So obviously, we know the primary basis for TDIU is that you have to have a single disability rated at 60% or a combination of disabilities where one is rated at least 40%. [00:16:12] Speaker 05: OK, slow down. [00:16:13] Speaker 05: I'm just taking a minute to catch up with you. [00:16:15] Speaker 02: Certainly. [00:16:15] Speaker 05: What am I looking at at 49 to 51? [00:16:17] Speaker 02: So starting at Appendix 49. [00:16:19] Speaker 05: Yes. [00:16:20] Speaker 02: We have the rating decision. [00:16:22] Speaker 05: OK, which one is this? [00:16:24] Speaker 05: There were multiple decisions. [00:16:25] Speaker 02: So this is the April 1999 decision, Your Honor. [00:16:28] Speaker 02: This is the first of the two decisions that both the board and the Veterans Court said constituted the implicit denial. [00:16:34] Speaker 02: And the implicit claim was raised, or the informal claim was raised in 1996 at the start. [00:16:38] Speaker 02: So this is the first decision that the board pointed to in stating, here is the first notice that a reasonable person would have understood implicitly denied TDIU. [00:16:47] Speaker 02: And the board said it's for two reasons, and we can see those reasons right in this document. [00:16:51] Speaker 02: At 49, it says the rating is 30%. [00:16:55] Speaker 02: VA also goes out of its way to say, we're expressly not giving you a higher 60% rating because, and then describes the symptoms and the reasons why 60% is not present. [00:17:06] Speaker 05: And so that covers- But they're not saying we're not giving you 60% because we don't find you're unemployable. [00:17:11] Speaker 05: We're not giving you 60% because you don't have this femur thing, whatever. [00:17:14] Speaker 05: No, no, no. [00:17:14] Speaker 02: That's correct, Your Honor. [00:17:15] Speaker 02: But going to your Honor's question about the two paths for TDIU. [00:17:19] Speaker 05: Right. [00:17:20] Speaker 05: So it seems to me that a normal person reading this wouldn't necessarily understand we're giving you 30, we're not giving you 60 for this specific reason as necessarily saying you don't get TDIU. [00:17:32] Speaker 02: But to answer your Honor's question about the alternative path, [00:17:35] Speaker 02: If you flip to the second page on Appendix 50, it also references here, we have determined that your claim, I'm reading the last sentence of the first paragraph here, we have determined that your claim does not warrant submission to the VA central office for extra schedule or rating. [00:17:50] Speaker 02: Because there is no evidence of unusual disability factors that preclude application of regular schedule. [00:17:55] Speaker 05: And that goes to the heart of 4.16B, right? [00:17:59] Speaker 02: That's correct, Your Honor. [00:18:00] Speaker 05: which is exactly what they would do, that there's a policy that the VA should, when they see reason to, submit something under 60% to the secretary. [00:18:13] Speaker 05: And this is an express statement in the rating decision that we've looked, and there's nothing special that warrants this extra scheduler consideration, and we're not sending it to there. [00:18:23] Speaker 05: So if his only hook is 4.16b here, which it is, [00:18:28] Speaker 05: here is a clear statement that you don't qualify under 4.16b. [00:18:32] Speaker 05: And that's the notice, which is all that's required. [00:18:35] Speaker 02: That is correct, Your Honor. [00:18:36] Speaker 02: And if the court requires even more, we can see that the first page here, appendix 49, is also discussing the evaluation report that was conducted on December 22, 1998. [00:18:45] Speaker 02: And the preceding pages of the appendix contain that report. [00:18:52] Speaker 02: And we can see on appendix 47, there is also discussion of her inability to work. [00:18:57] Speaker 05: So look, you've knocked it out of the park. [00:19:01] Speaker 05: You can stop talking. [00:19:01] Speaker 05: But as far as the Locklear thing goes, I am really troubled by this notion that there ought to be some, or maybe is. [00:19:10] Speaker 05: Help me understand this Locklear decision by the Veterans Court. [00:19:14] Speaker 05: and whether or not they're applying it in a way that would really eviscerate the presence of 4.16b because it can't be the case that you have to have a rating that is 100% or even over 60% to potentially be entitled. [00:19:32] Speaker 05: to TDIU. [00:19:34] Speaker 05: That can't be right, because the regulations contradict that concept. [00:19:39] Speaker 05: Is that what the Locklear case really stands for? [00:19:41] Speaker 02: That's not how we understand Locklear, Honor. [00:19:43] Speaker 02: And I believe Ms. [00:19:44] Speaker 02: Penn, this briefing is maybe over-reading Locklear and saying that it establishes some sort of categorical rule. [00:19:49] Speaker 02: The holding of Locklear was something that's actually favorable to veterans. [00:19:53] Speaker 02: which says that even if you have a notice that might plausibly be understood to deny a TDIU claim, if in the course of that proceeding, VA expressly says, wait a second, we're going to reserve judgment on the TDIU piece. [00:20:06] Speaker 02: We're going to make that a separate decision. [00:20:09] Speaker 02: that that controls. [00:20:10] Speaker 02: That was the actual holding of Locklear, that a statement, an affirmative statement from VA saying we're going to reserve judgment on TDIU controls, even if there is other evidence that might suggest an implicit denial. [00:20:21] Speaker 05: Well, of course. [00:20:21] Speaker 05: But has Locklear been read subsequently? [00:20:25] Speaker 05: to stand for a much broader proposition than what you just articulated, which is anything less than 100% is an implicit denial. [00:20:34] Speaker 02: Not that we're aware of, Your Honor. [00:20:36] Speaker 02: And I also want to point out that even though Locklear was mentioned in the Veterans Court decision here, really the foundation of this decision was Ingram. [00:20:42] Speaker 02: And Ingram is a case that this court has cited approvingly on multiple occasions as well as taking a fact-intensive approach as appropriate. [00:20:49] Speaker 05: Just so I understand, do you agree and recognize the concern that I would have with such an incredibly broad reading of Locklear that anything short of 100% or even anything short of 60% is on its face an implicit denial of TDID? [00:21:02] Speaker 05: Do you understand my concern? [00:21:04] Speaker 02: Absolutely, Your Honor. [00:21:05] Speaker 02: And the way the government understands, again, really, Ingram is the foundational decision that Locklear is applying in a specific circumstance is that [00:21:12] Speaker 02: Ingram says, if you have a prerequisite determination that is decided, that puts someone on notice that any downstream determinations have also been decided. [00:21:23] Speaker 02: So in that case, though, we were in that 416A category, where we're talking about the only available path to TDIU is a single rating, 60%. [00:21:35] Speaker 02: And what Ingram said was that [00:21:37] Speaker 02: That's a prerequisite determination to getting TDIU if you're only in subsection A. And if you don't meet that prerequisite, obviously you're not going to meet the requirements for the subsequent decision of TDIU. [00:21:49] Speaker 02: But it would be too far, and we would agree, that that does not mean that TDIU as a blanket rule is never available simply because there's a specific rating decision that's implemented. [00:21:58] Speaker 02: Obviously, that would read out the alternative path for TDIU, which is in the regulations. [00:22:02] Speaker 05: OK. [00:22:03] Speaker 05: Anything further? [00:22:05] Speaker 02: I can address the 3.156 argument very briefly, if the Court prefers. [00:22:09] Speaker 02: I know it didn't come up in Mr. Carpenter's opening argument. [00:22:13] Speaker 02: But I would simply point out that the Court is misunderstanding Bozeman, obviously, just because an argument is- You don't need to say anything more. [00:22:20] Speaker 02: OK. [00:22:20] Speaker 02: Thank you. [00:22:20] Speaker 02: Thank you. [00:22:20] Speaker 02: Then we'll ask that the Court affirm. [00:22:24] Speaker 05: Thank you. [00:22:24] Speaker 05: Mr. Carpenter, you have some rebuttal time. [00:22:26] Speaker 01: May it please the Court. [00:22:27] Speaker 01: What the government just did was to offer a post-hoc rationalization [00:22:32] Speaker 01: that was not the basis for the board's holding. [00:22:36] Speaker 01: What you heard was what was done, or they suggest was done, in the 1999 decision. [00:22:44] Speaker 01: As I indicated in my opening argument, at Appendix 198, the Board of Veterans' Appeals decision of December 11, 2019 expressly found [00:22:59] Speaker 01: that the veterans' 1996 application raised an informal claim of TDIU. [00:23:05] Speaker 01: And thus, the board finds that the veterans' 1996 application included a claim for TDIU. [00:23:14] Speaker 01: So it was about what was in the 1996 application, and thereafter, what was in the subsequent rating decisions. [00:23:25] Speaker 01: The quoted material that is [00:23:29] Speaker 01: was referred to by the government at page 50 of the appendix applies equally to the language used by the VA in its regulation at 3.321b1. [00:23:48] Speaker 01: And that is for extra schedule or consideration where the rating schedule does not provide for a rating more than. [00:23:57] Speaker 01: And so for the government to get up here and rewrite the board's decision in argument, [00:24:05] Speaker 05: we're going to talk about this is that all fair look at page one ninety nine and two hundred exactly the document you just pointed us to i'm sorry i was picked page one ninety nine and two hundred which is exactly the document you just pointed us to where the board expressly says exactly what the government attorney just argued [00:24:27] Speaker 05: which is it goes through implicit denial, and it points to exactly the extra scheduler language. [00:24:34] Speaker 05: It goes through why, since you're only at 30%, not 60, you don't get 4.16a. [00:24:40] Speaker 05: And then it goes further on the top paragraph of 200 to explain that moreover, the board determined in that rating decision that you didn't warrant extra scheduler rating. [00:24:50] Speaker 05: I don't. [00:24:52] Speaker 01: But Your Honor, with respect, the term extra scheduler rating [00:24:56] Speaker 01: is used in 3.321B1 for a completely different purpose. [00:25:02] Speaker 01: The 3.321B is for extra scheduler consideration when the rating schedule does not meet the symptoms for the veteran service-connected disability. [00:25:18] Speaker 01: That's a different type of extra schedule consideration moved to the same administrative personnel within the VA. [00:25:26] Speaker 05: OK, so you're saying that this quote doesn't come from 4.16b. [00:25:32] Speaker 01: Correct. [00:25:32] Speaker 05: And so you don't think that it represents the government's decision [00:25:38] Speaker 05: that she was not being given TDIU. [00:25:42] Speaker 01: That's correct, Your Honor, because the opening phrase of 4.16B is, it shall be the established policy of the VA to grant TDIU when [00:25:54] Speaker 01: the requirements of TDIU are met, other than on the scheduler basis set out in A. Did you cite 4.16B in your briefs? [00:26:03] Speaker 01: No, Your Honor, I did not. [00:26:04] Speaker 01: Because the issue is, was she on notice? [00:26:09] Speaker 01: And it's about the application. [00:26:11] Speaker 01: This court has jurisdiction, because this case is about how the application. [00:26:17] Speaker 04: I just want to make clear, you didn't cite 4.16 here. [00:26:21] Speaker 05: you did not know I did not I did not okay thank you