[00:00:00] Speaker 03:
We will hear argument in number 21-1784 Robinson against McDonough.

[00:00:06] Speaker 03:
Mr. Knox, please begin whenever you're ready.

[00:00:11] Speaker 02:
Thank you, Your Honor, and may it please the court.

[00:00:14] Speaker 02:
This morning I'd like to address two errors that the Veterans Court made below.

[00:00:19] Speaker 02:
The first was to assess under an erroneously restricted standard whether the law of the case doctrine applies.

[00:00:27] Speaker 02:
The second was to treat whether an agency-issued document constitutes a quote-unquote decision as presenting a question of fact when it presents a question of law.

[00:00:40] Speaker 03:
And so the issue I'd like to address first is law of the case, which... Mr. House, can I interrupt and ask you about something that I remain quite puzzled by?

[00:00:51] Speaker 03:
I think I understand.

[00:00:53] Speaker 03:
what the consequence is of your prevailing on your August 1979 argument, or at least what you say the consequences, which is that there's a still pending claim sitting there that has never been ruled on.

[00:01:10] Speaker 03:
And that would, in your view, push any date, at least potentially back to that.

[00:01:17] Speaker 03:
I do not understand what the consequence is

[00:01:23] Speaker 03:
You win on the proposition that the September 1997 board decision saying something about the July 1975 decision being the last final decision.

[00:01:38] Speaker 03:
Um, I do, I need the connection made for how that benefits you.

[00:01:44] Speaker 02:
Yes, your honor.

[00:01:45] Speaker 02:
And so the question is whether the class final decision occurred in 1975 or 1980.

[00:01:52] Speaker 02:
And it's that 1980 that's a problem because it's after 1979.

[00:01:55] Speaker 02:
And so these two issues are related in that respect, where if the 1997 board decision has resolved that the most recent prior final decision had occurred in July 1975, then that does open the door for 1979 earliest effective dates.

[00:02:14] Speaker 02:
Where if the 1979 proceedings had become final in 1980,

[00:02:19] Speaker 02:
Mr. Robinson would have a problem pursuing an earlier effective date than he currently has.

[00:02:25] Speaker 03:
And so... So, as I understand it, you need, actually, to prevail on the law of the case point in order for you to prevail on the 1979 point.

[00:02:37] Speaker 03:
Yes, Your Honor.

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

[00:02:40] Speaker 02:
And so, while the case is a doctrine that, as this appeal illustrates, is significant to many of our country's military veterans,

[00:02:49] Speaker 02:
their VA claims as here can span decades.

[00:02:52] Speaker 02:
And with VA staff cycling out, cycling in, you often end up with the result being that the benchmarks without this and the goalposts without this law of the case anchor being pushed back.

[00:03:06] Speaker 02:
And so here what Mr. Robinson is requesting is that the court correct the Veterans Court's error as to whether under the law of the case doctrine that 1997 board decision did settle

[00:03:19] Speaker 02:
that the most recent prior final decision that he received from VA on this claim occurred in July of 1975.

[00:03:27] Speaker 02:
And on the correct standard for invoking the law of the case doctrine, it involves whether the matter has been actually decided.

[00:03:41] Speaker 02:
And that casts a pretty wide net because it encompasses both

[00:03:46] Speaker 02:
a matter being either expressly decided or decided by necessary implication.

[00:03:51] Speaker 02:
And so the Veterans Court's error here was to essentially lock off the by necessary implication.

[00:03:58] Speaker 02:
It held that the law that to get the benefit of the law to the case doctor, Mr. Robinson had to show that the 1997 board decision had specifically or expressly decided an issue.

[00:04:12] Speaker 02:
And that makes a difference.

[00:04:14] Speaker 02:
for reasons including that the board in 1997 had to address when the most recent prior final decision had been issued.

[00:04:24] Speaker 02:
The basis of its jurisdiction depended on that answer, and so did the scope of its duty to consider whether any of the evidence that had been added to Mr. Robinson's administrator records since the prior final decision was material.

[00:04:40] Speaker 02:
And here I'll mention that at appendix page 64, the board concluded that the July, 1975 rating decision was quote unquote, the last final rating decision denying service connection for psychiatric disorder.

[00:04:55] Speaker 02:
And so as a result is Mr. Robinson's contention that the veterans court could under the correct actually decided standard conclude that the 1997 board decision did actually decide.

[00:05:07] Speaker 02:
that Mr. Robinson's July 1975 rating decision was his most recent prior final decision.

[00:05:13] Speaker 01:
Mr. Niles, the government argues that the Veterans Court in 2000 did not decide whether that factual finding by the court about 1975 did not decide even by implication whether it was correct.

[00:05:30] Speaker 01:
They didn't even address it because it was remanding on the juriality.

[00:05:35] Speaker 01:
And so what is your argument for how that issue could have been decided by implication by the Veterans Court?

[00:05:44] Speaker 02:
Yes, Your Honor.

[00:05:44] Speaker 02:
And there's, uh, Mr. Robinson has presented both the 1997 board decision of establishing the law of the case.

[00:05:51] Speaker 02:
And he has at this court consider what he has also asserted as the 2000, year 2000 Veterans Court decision, establishing the law of the case as being the alternative to that.

[00:06:02] Speaker 02:
In 2000 and today, the Veterans Court has no jurisdiction to disturb a favorable board determination.

[00:06:09] Speaker 02:
And so here, this determination.

[00:06:12] Speaker 01:
So you're not answering my question.

[00:06:15] Speaker 01:
You're just relying on the board decision.

[00:06:17] Speaker 01:
Is that what I'm hearing correctly?

[00:06:19] Speaker 01:
I want to know where you think the Veterans Court or you just, you're agreeing with me, I guess, that the Veterans Court could not have, by implication even, addressed the date in the 1999 board decision.

[00:06:32] Speaker 01:
Correct?

[00:06:34] Speaker 02:
The Veterans Court could have addressed it, but could not have done anything to disturb it, Your Honor.

[00:06:39] Speaker 02:
And there is.

[00:06:40] Speaker 01:
But did they address it?

[00:06:41] Speaker 01:
Because your argument, I think, is that the Veterans Court erred by saying that they had just specifically expressly addressed the issue.

[00:06:51] Speaker 01:
And you want, say, all the cases prior to that, it includes making a decision by implication.

[00:06:56] Speaker 01:
But I don't see where they made the decision by implication.

[00:06:59] Speaker 01:
I need your help to see that, if you want me to rule on that basis.

[00:07:04] Speaker 02:
And so the Veterans Court did.

[00:07:08] Speaker 02:
in its 2000 decision, and I beg the court's patience for a moment as I pull up the Veterans Court decision from 2000, which starts at appendix page 59.

[00:07:29] Speaker 02:
It does not directly say that the 1997 board decision decided this matter.

[00:07:37] Speaker 02:
But it does go through the analysis of the 1997 board decision, which, which did.

[00:07:44] Speaker 02:
And so Mr. Robinson is reading the veterans.

[00:07:47] Speaker 01:
I don't, I don't see that.

[00:07:49] Speaker 01:
Show me where it is to relay it.

[00:07:50] Speaker 01:
It's in just pages eight 59.

[00:07:52] Speaker 01:
All right.

[00:07:53] Speaker 02:
So appendix at page 60.

[00:07:56] Speaker 02:
Okay.

[00:07:57] Speaker 02:
And so there's a, the first full paragraph on that page begins to reopen a finally disallowed claim and they're the.

[00:08:06] Speaker 02:
The Veterans Court goes into and sort of repeats the 1997 board decisions analysis that stepped through these more than a dozen different pieces of evidence that had been added to the record, the administrative record, since July 1975, including this letter from a psychiatrist, Dr. Kenneth Newman, dated April 1980.

[00:08:27] Speaker 02:
And then in that letter going on,

[00:08:30] Speaker 02:
And so it's in that vein that the Veterans Court is referring to the September 1997 board decision and even saying in the concluding sentence to that letter that in its September 1997 decision, the board determined that that letter was not material.

[00:08:45] Speaker 02:
And so it's that analysis beginning with 1975 and going forward that by implication does decide the issue.

[00:08:53] Speaker 02:
The 2000 Veterans Court decision as well as 1997 board decision doing so.

[00:09:00] Speaker 02:
Although to repeat, the 2000 Veterans Court decision could not have disturbed that.

[00:09:07] Speaker 04:
Mr. Niles, I don't understand what difference it makes on the legal standard based upon your argument about what the board decision says.

[00:09:16] Speaker 04:
You're not arguing, I don't think that the board decision explicitly decided anything.

[00:09:21] Speaker 04:
You're arguing that it explicitly decided that 1975 was the last decision on the merits.

[00:09:28] Speaker 04:
So what are we looking at in terms of, are you just trying to get a legal hook to say we have jurisdiction here?

[00:09:36] Speaker 04:
Because it seems to me that even under the standard you're offering, it makes no difference as to how we look at the 97 document.

[00:09:45] Speaker 02:
Ultimately, Your Honor, that is Mr. Robinson's decision.

[00:09:48] Speaker 02:
The 1997 board decision decided that July 1975 was the most recent prior final denial.

[00:09:54] Speaker 02:
But the reason we're drawing this in maybe

[00:09:56] Speaker 02:
Angel is answering that.

[00:09:57] Speaker 04:
Isn't that really your problem, though?

[00:09:59] Speaker 04:
Because what you're asking us to look at is factually what the 1997 document decided, and we can't do that.

[00:10:07] Speaker 04:
And in fact, the board and the Veterans Court later came along and said the 1997 decision didn't decide this at all.

[00:10:14] Speaker 04:
And if you look at the 1997 decision, it may say that the 75 decision was the last decision on the merits, but it also specifically references a claim to be open.

[00:10:26] Speaker 04:
And a final decision on that.

[00:10:28] Speaker 04:
And that's what the board has used and the Veterans Court has used in your case as the final decision in 1980.

[00:10:35] Speaker 04:
Isn't that correct?

[00:10:38] Speaker 02:
Your Honor, it is precisely to that concern that we have been doing the stance of requesting only that this court

[00:10:45] Speaker 02:
reverse the erroneous legal standard?

[00:10:48] Speaker 04:
But again, I don't understand.

[00:10:49] Speaker 04:
Let me ask you this.

[00:10:50] Speaker 04:
If the board and Veterans Court are correct, that 97 document factually references the claim to reopen in 1979 and a final decision refusing to reopen because there is no material new evidence, doesn't that 1980 decision become the final decision in this case and prevent any earlier effective date than you have?

[00:11:15] Speaker 02:
If that is all that the Veterans Court, the extent of the analysis that the Veterans Court were charged to perform, then yes.

[00:11:23] Speaker 02:
But it is not, because the Veterans Court also had to look at, hey, was there a decision by necessary implication here?

[00:11:31] Speaker 04:
And what Mr. Robbins said- We don't understand any of that.

[00:11:35] Speaker 04:
Let's just assume, I mean, we probably disagree with this factual description of the 97

[00:11:39] Speaker 04:
decision, board decision, but let's just assume it recognizes that there was a 1979 kind of reopen and a 1980 decision declining to reopen because there's no material evidence or insufficient grounds.

[00:11:54] Speaker 04:
Factually, that's correct.

[00:11:56] Speaker 04:
Where does that leave you with regard to your asserted legal error in the veteran support's decision?

[00:12:02] Speaker 04:
What difference would it make?

[00:12:04] Speaker 02:
And there we would need to move to whether that September 1979 document that Mr. Robinson received constitutes a decision.

[00:12:13] Speaker 04:
And you're pivoting and not answering my question on the first issue about why law of the case matters here.

[00:12:24] Speaker 02:
I apologize.

[00:12:25] Speaker 02:
I may be misunderstanding your question.

[00:12:28] Speaker 04:
My question is, if the 97 decision is read as recognizing a claim to reopen in 1979 and a denial of that claim to reopen in 1980, which is what does that transfer to the board found here, then what difference does it make your argument about legal error in the court's application of law in the case?

[00:12:50] Speaker 04:
Because there's a factual finding that nobody can deserve, or at least we can't deserve,

[00:12:56] Speaker 04:
that there's a 1980 claim denial, which is, would be the final claim denial.

[00:13:01] Speaker 02:
I very much appreciate the follow-up, Your Honor.

[00:13:03] Speaker 02:
I think I finally understand Your Honor's question.

[00:13:06] Speaker 02:
If there is a finding, a determination that July 1975 was the final, the most recent final rating decision here, then it does not matter for purposes of earlier effective dates, doubling its earlier effective date, whether there was also a decision

[00:13:25] Speaker 02:
in 1979 or 1980, the most recent prior final decision had been in 1975.

[00:13:30] Speaker 04:
And so that's- You're still not accepting my hypothetical.

[00:13:34] Speaker 04:
The 1980 decision denying a claim to reopen is the most recent final decision denying a claim to reopen.

[00:13:42] Speaker 04:
Doesn't that cut off any argument to go being one with the board, the court already gave you and the board?

[00:13:51] Speaker 04:
If that's true, if that 1980 decision is a denial of a claim to reopen, then the characterization as a 75 claim is a final decision on the merits is not inconsistent with a denial of a claim to reopen, which is, as you know, not a decision on the merits, but a denial of a claim to reopen.

[00:14:13] Speaker 04:
They're entirely consistent with each other, and that's what the board and the Veterans Court later found in this case.

[00:14:21] Speaker 02:
And I am pushing back, Your Honor, because if the 1975 decision never did become, and so maybe I need to stop here and pushing back and say if there is a, if I, under this premise where April 1980 is the most recent final decision period in its sentence, then yes, Mr. Robinson then has a problem going back earlier than 1992.

[00:14:42] Speaker 02:
And so that is why we are pushing back on whether

[00:14:46] Speaker 02:
if the Veterans Court applied the correct legal standard here in assessing the law of the case, because we believe that if it, because it did not, it has at least a reasonable possibility.

[00:14:57] Speaker 02:
And so there is a reason to remand for the Veterans Court to in the first instance.

[00:15:01] Speaker 02:
So this court is not in the first instance.

[00:15:03] Speaker 04:
I don't understand why it is a question of implicitly or explicitly.

[00:15:08] Speaker 04:
You're arguing about what the decision explicitly says.

[00:15:11] Speaker 04:
And the decision explicitly says that the 1975 decision was the final decision on the merits, but it also explicitly says that a claim to reopen was denied in 1980.

[00:15:24] Speaker 04:
So again, I don't understand what any purported legal error in the Veterans Court's decision means for your case has applied.

[00:15:33] Speaker 04:
You're arguing about the facts of what the 1997 decision says, which we can't review.

[00:15:41] Speaker 02:
And I apologize for possibly muddying this.

[00:15:45] Speaker 02:
What we are arguing and trying to argue here is that the 1975 decision, let's adopt the premise that it did not expressly decide 1975 was the most recent private final decision.

[00:15:58] Speaker 02:
It still had to, by necessary implication, address this because the basis of its jurisdiction, whether it's 3156A or B, depended on that.

[00:16:05] Speaker 02:
And so with the scope of its obligation to consider,

[00:16:10] Speaker 02:
whether any much any evidence has been added was new.

[00:16:13] Speaker 02:
And I see that I'm into my rebuttal time.

[00:16:16] Speaker 03:
Thank you, Mr. Niles.

[00:16:17] Speaker 03:
We will restore your rebuttal time and hear from his acres now.

[00:16:23] Speaker 00:
Thank you, your honor.

[00:16:24] Speaker 00:
And may it please the court.

[00:16:25] Speaker 00:
I'll start with the law of the case issue.

[00:16:28] Speaker 00:
Mr. Robinson's argument should be rejected for two reasons.

[00:16:31] Speaker 00:
First, there was no violation of the law of the case.

[00:16:34] Speaker 00:
And second, the law of the case was never established.

[00:16:37] Speaker 00:
To our first argument,

[00:16:39] Speaker 00:
Even if the law of the case were established, like Mr. Robinson argues, the Veterans Court correctly determined that the board did not violate the law of the case.

[00:16:48] Speaker 00:
So even if it's the law of the case that the 1975 decision was the last final decision on the merits, the issue addressed in this appeal is not contrary to that finding.

[00:16:59] Speaker 00:
As Judge Hughes acknowledged, there's no inconsistency between what Mr. Robinson characterizes as the last final decision and what the board did here.

[00:17:08] Speaker 00:
The question in this appeal is whether Mr. Robinson's two requests to reopen were finally decided, and the court concluded that they were in that 1988 decision.

[00:17:17] Speaker 00:
And there's no inconsistency with that and the premise that the 1975 decision was the last final decision on the merits.

[00:17:26] Speaker 00:
Second, even putting aside that the law of the case was never violated, the law of the case also was never established.

[00:17:35] Speaker 00:
And we explained in our brief that's the case for at least two reasons.

[00:17:38] Speaker 00:
First, to create the law of the case, the issue must have been actually decided.

[00:17:44] Speaker 00:
And as we heard here today, Mr. Robinson doesn't seem to argue that the issue was expressly decided in the 2000 Veterans Court decision.

[00:17:53] Speaker 00:
He argues it was decided by implication, but he has not and cannot explain here today how the issue was decided by implication.

[00:18:01] Speaker 00:
And I would point, Your Honors, to our brief on page 12, the Smith intern case that explains

[00:18:08] Speaker 00:
When a decision is necessarily decided or decided by implication, Mr. Robinson simply doesn't meet that here.

[00:18:15] Speaker 00:
And then finally, for the law of the case to be created, there must be a final decision.

[00:18:20] Speaker 00:
As we've cited in our brief, the Supreme Court in the smelting case has provided that there must be a final decision.

[00:18:27] Speaker 00:
A remand order is not a final decision, and therefore, the Veterans Court decision can't create the law of the case.

[00:18:34] Speaker 00:
And I'll briefly turn to the second issue on waiver.

[00:18:37] Speaker 00:
The court should not entertain Mr. Robinson's argument that the... Sorry, Ms.

[00:18:41] Speaker 03:
Montague, can I just... Ms.

[00:18:43] Speaker 03:
Montague, can I just... So you were just talking, I think, but correct me if I'm wrong, about the 2000 Veterans Court opinion as a basis for law of the case.

[00:18:53] Speaker 03:
I understood Mr. Niles to be relying in the alternative for, on the September 1997 board decision as establishing law of the case.

[00:19:05] Speaker 03:
Maybe you already have addressed that, in which case, re-address it, please, because I missed it.

[00:19:10] Speaker 03:
In any event, please address that.

[00:19:13] Speaker 00:
Sure, Your Honor.

[00:19:14] Speaker 00:
I understand Mr. Robinson's argument to be perhaps establishing or arguing that both the 1997 and the 2000 decision created the law of the case.

[00:19:24] Speaker 00:
The 1997 decision didn't create the law of the case because, as the Veterans Court explained in the 2000 decision, it was ambiguous at best.

[00:19:34] Speaker 00:
One said that the 1975 decision was the final decision on the merits, but it also acknowledged, as Judge Hughes acknowledged during his questioning, that there was a 1980 decision denying the request to reopen.

[00:19:47] Speaker 00:
And so there was reference to both of the decisions.

[00:19:50] Speaker 00:
So to the extent that Mr. Robinson tries to characterize one as the final attempt or the, or excuse me, the final decision, it's ambiguous as to which one was the final decision, the 1980 reference

[00:20:03] Speaker 00:
was obviously later than the 1975.

[00:20:06] Speaker 00:
But either way, there's reference to both of those decisions in the board decision in 1997.

[00:20:15] Speaker 00:
I'll turn briefly to the second issue, which is the waiver issue.

[00:20:20] Speaker 00:
And our argument here is that the court shouldn't even entertain Mr. Robinson's argument that the Veterans Court applied the incorrect standard of review.

[00:20:28] Speaker 00:
As this court explained in the Logan case that's cited on page 16 of our brief,

[00:20:33] Speaker 00:
A party cannot urge a court to apply a particular standard of review.

[00:20:38] Speaker 00:
And then once the court does apply that standard of review, turn around and argue that the court improperly applied the standard of review.

[00:20:45] Speaker 00:
And that's exactly what Mr. Robinson has attempted to do here.

[00:20:51] Speaker 00:
For all those reasons, Your Honor.

[00:20:52] Speaker 04:
Sure.

[00:20:53] Speaker 04:
Just setting aside the waiver argument.

[00:20:57] Speaker 04:
What do you think is the proper standard of review for the Veterans Court in determining whether something's a decision by the RO or not?

[00:21:10] Speaker 00:
We believe, Your Honor, that Mr. Robinson, the case law that he cited in his brief, that the determination as to whether a certain document constitutes a decision has typically been reviewed under a de novo standard.

[00:21:23] Speaker 00:
And that's why we requested in the alternative, if the court doesn't believe

[00:21:27] Speaker 00:
that waiver was established here, we would ask that the court remand to the Veterans Court to apply the De Novo standard of review.

[00:21:35] Speaker 00:
We don't think the court needs to get there.

[00:21:37] Speaker 04:
Sorry, why do you think looking at a document determining whether that is

[00:21:45] Speaker 04:
that decision of the RO capable of being appealed to the board is an actual decision, or is it, am I getting it mixed up?

[00:21:53] Speaker 04:
It's not, is it, we're talking about two different things and we're talking about standard review.

[00:21:57] Speaker 04:
It's not as fairly as a purely factual decision, but that it's at least an application of law to fact that the veterans part was reviewed at OVO?

[00:22:07] Speaker 00:
Exactly.

[00:22:08] Speaker 04:
Is there, okay.

[00:22:10] Speaker 04:
And do you have, I would think that there was something out here that I was having a hard time finding something.

[00:22:17] Speaker 04:
I know that there's statutory requirements for what's a final board decision, but do you know if there's any legal task for what a final RO decision in case law or anything?

[00:22:32] Speaker 00:
Your Honor, I'm not aware of any.

[00:22:33] Speaker 00:
I think it, no, Your Honor, I'm not aware of any case law that

[00:22:39] Speaker 00:
that specifically identifies criteria or a test to make that determination.

[00:22:45] Speaker 00:
That seems a little off now.

[00:22:47] Speaker 04:
We're 30 years into the system and we don't have a standard for determining what a final decision of the RO is.

[00:22:56] Speaker 04:
I know that you probably hear is there's nothing in this at all that signifies an intent from the RO to rule on the merits of his claim.

[00:23:08] Speaker 04:
And the text on the team is very, you know, short and suggests that all they're saying is you filed the wrong application, file something else.

[00:23:18] Speaker 04:
But it's a little confusing to me that we don't have at least some case on what constitutes a final decision from a regional office.

[00:23:28] Speaker 00:
I think, Your Honor, that perhaps the reason we don't have a test or specific criteria is that it's a very factual determination.

[00:23:35] Speaker 00:
A lot of these cases have

[00:23:37] Speaker 00:
a very elongated posture and there are, like in this case, several back and forth letters and documents between the VA and the veteran.

[00:23:48] Speaker 00:
And so the posture of the proceedings is quite confusing and certainly never the same between case to case.

[00:23:54] Speaker 00:
And so there's a lot of context that might help establish whether a document constitutes a final decision or notice of disagreement or anything like that.

[00:24:06] Speaker 00:
I think a good example is page appendix 23 where the board was explaining why these certain letters didn't constitute notices of disagreement.

[00:24:16] Speaker 00:
And it explains that the context is important and the board had to look at whether there was an event understanding from the parties on a particular issue and whether the document itself, even though it's not in a particular form, bared an indication that there was a rating decision.

[00:24:32] Speaker 00:
So I think it's just that there's an informal process, a lot of back and forth between the VA and the veteran.

[00:24:37] Speaker 00:
And so it's going to be a really case by case specific determination.

[00:24:43] Speaker 03:
Am I remembering right that there was a

[00:24:48] Speaker 03:
notification of appeal rights that was part of what was sent in September 1979, and that that at least weighs in the direction of maybe it actually was a decision, but that the document itself weighs in the opposite direction.

[00:25:12] Speaker 00:
That was the issue that was raised below, Your Honor, and that's correct factually.

[00:25:16] Speaker 00:
The issue as to whether the appellate rights were attached seemed to be disputed and there was some briefing on that below that's in the joint appendix.

[00:25:25] Speaker 00:
But the issue was really raised on appeal here.

[00:25:28] Speaker 00:
And I think- Sorry, not whether- I'm sorry.

[00:25:32] Speaker 03:
I'm sorry.

[00:25:32] Speaker 03:
Not whether appellate rights attached.

[00:25:34] Speaker 03:
Just like a record question.

[00:25:36] Speaker 03:
Is it accepted or clear that notification by the RO

[00:25:42] Speaker 03:
was given of appellate rights in that September 1979 communication?

[00:25:50] Speaker 00:
Yes, Your Honor.

[00:25:52] Speaker 03:
Okay, that's an option to do unless it's a decision, isn't it?

[00:25:55] Speaker 00:
I don't think so, and that's because the posture of this case, and I'll explain why, Your Honor.

[00:26:04] Speaker 00:
Beginning in August of 1979, when Mr. Robinson filed

[00:26:08] Speaker 00:
what he deemed to be his first claim, even though he later discovered a prior claim was filed.

[00:26:15] Speaker 00:
Starting at that time, there was a lot of back and forth between the VA and the veteran.

[00:26:20] Speaker 00:
The veteran was asserting that he had never filed a claim.

[00:26:24] Speaker 00:
The VA came back to him in September and said, you did already file a claim.

[00:26:28] Speaker 00:
Here it is.

[00:26:30] Speaker 00:
And it gave it to him.

[00:26:31] Speaker 00:
They also advised him and tried to help him.

[00:26:34] Speaker 00:
said, here are your appellate rights, and if you want to file new and material evidence to try to reopen that claim, you can.

[00:26:42] Speaker 00:
Mr. Robinson came back, and there was some confusion.

[00:26:45] Speaker 00:
So perhaps in the ordinary course of proceedings, it might be odd, but I think the system was really working here how it should.

[00:26:52] Speaker 00:
The VA was trying to help Mr. Robinson, who believed that he had a viable claim, and there was a lot of back and forth.

[00:27:00] Speaker 00:
I think the most important part of this case for this court

[00:27:04] Speaker 00:
is the 1980 decision that's on Appendix 94.

[00:27:07] Speaker 00:
And that decision very clearly denies the two requests to reopen.

[00:27:14] Speaker 00:
And because the requests to reopen were denied and that became final, there was no further action on that in 1980, nothing until 1992, Mr. Robinson's effective date can't be anything earlier than 1992.

[00:27:28] Speaker 00:
It's just very clear that the requests to reopen were denied.

[00:27:32] Speaker 03:
It became final, and it wasn't until 12 years ago.

[00:27:35] Speaker 03:
I'm sorry, can you elaborate on that a little bit?

[00:27:37] Speaker 03:
Tell me why it's clear that if the 1980 June denial of reopening was a denial of reopening, that it follows that Mr. Robinson can't get an effective day before 1992?

[00:27:56] Speaker 00:
Sure, Your Honor.

[00:27:57] Speaker 00:
It's because the effective date is the date of the claim.

[00:28:04] Speaker 00:
And so here, there was these two requests to reopen, right?

[00:28:10] Speaker 00:
Mr. Robinson didn't present any new and material evidence.

[00:28:13] Speaker 00:
So the requests to reopen were denied in 1980.

[00:28:15] Speaker 00:
There was no further follow-up.

[00:28:18] Speaker 00:
That denial became final.

[00:28:20] Speaker 00:
And so at that point, there was no pending entitlement to any benefit.

[00:28:26] Speaker 00:
It wasn't until... I'm sorry.

[00:28:29] Speaker 03:
So this is just all about whether there was something still open and pending before the 1992 claim.

[00:28:38] Speaker 03:
That's correct, Your Honor.

[00:28:41] Speaker 03:
This is just a comment actually to both counsel.

[00:28:47] Speaker 03:
We spent hours and hours trying to figure that

[00:28:51] Speaker 03:
other elementary facts out because nobody said it with simplicity.

[00:28:57] Speaker 03:
It would be very helpful if that kind of thing was said with simplicity so we understand the mechanics of why the fight over legal issues matters.

[00:29:09] Speaker 03:
Thank you.

[00:29:11] Speaker 00:
Thank you, Your Honor.

[00:29:12] Speaker 00:
And so just to sort of wrap this up, the 1980 decision closed the request to reopen.

[00:29:20] Speaker 00:
there wasn't any additional new and material evidence that was submitted by Mr. Robinson until 1992, and therefore that's the earliest effective date that he can get.

[00:29:30] Speaker 00:
And he attempts to, by using the law of the case, to sort of get around this 1980 decision that closed off his request to reopen.

[00:29:39] Speaker 00:
The law of the case, even if it is the law of the case, addresses the 1975 decision, and in this case here,

[00:29:47] Speaker 00:
We're talking about the 1980 decision to deny the request to reopen.

[00:29:51] Speaker 00:
So the law of the case doesn't get around the 1980 decision or doesn't otherwise keep open any of Mr. Robinson's prior attempts to reopen his case.

[00:30:01] Speaker 00:
For those reasons, Your Honor, we ask that the court affirm the Veterans Court decision.

[00:30:06] Speaker 00:
Thank you.

[00:30:07] Speaker 03:
Thank you.

[00:30:09] Speaker 03:
Mr. Niles, you have, yes.

[00:30:16] Speaker 02:
Thank you, Your Honor.

[00:30:17] Speaker 02:
Just briefly, Mr. Robinson would ask that this court separate its analysis between on the one hand, did the Veterans Court err, and then number two, was that error prejudicial?

[00:30:30] Speaker 02:
And he submits the Veterans Court erred on both the law of the case issue and the scope of review issue.

[00:30:37] Speaker 02:
An error on the law of the case by invoking a too restrictive standard for assessing whether that doctrine applies

[00:30:46] Speaker 02:
truncating it from actually decided to expressly or specifically decide it.

[00:30:52] Speaker 02:
And then so long as Mr. Robinson has persuaded this court that he has at least a reasonable possibility of prevailing on the issue, that it does need to go back to the Veterans Court for it to address in the first instance under the correct legal standard.

[00:31:05] Speaker 02:
And then similarly, with respect to whether the September 1979 BA document constitutes a quote unquote decision, the context of the document is not a dispute.

[00:31:15] Speaker 02:
The text of the document is not a dispute.

[00:31:17] Speaker 02:
And he respectfully submits that under this court's case law, including Patrick versus Nicholson and Halpern versus Principi, that the question whether that document is or is not a quote unquote decision is one of law.

[00:31:31] Speaker 02:
The Veterans Court erred by treating it as one of fact.

[00:31:35] Speaker 02:
And so once again, so long as Mr. Robinson has persuaded his court that he has at least a reasonable possibility of prevailing, that the proper remedy is to instruct the Veterans Court on the correct legal standard and send back that issue for the Veterans Court to decide under the correct legal standard in the first instance.

[00:31:56] Speaker 02:
Thank you, Your Honors.

[00:31:58] Speaker 03:
Thanks to both counsel.

[00:32:01] Speaker 03:
And that case is submitted.