[00:00:00] Speaker 04:
The next argued case is number 22, 1447, Bean against McDonough, the Secretary of Veterans Affairs, Ms.

[00:00:10] Speaker 04:
Zajac.

[00:00:11] Speaker 04:
Thank you.

[00:00:13] Speaker 04:
You're ready.

[00:00:15] Speaker 00:
Thank you, Your Honor.

[00:00:16] Speaker 00:
May it please the Court, my name is Jennifer Zajac, and I represent the veteran Wilfred D. Bean and his pursuit of VA disability benefits based on service connection for generalized anxiety and major depressive disorder.

[00:00:28] Speaker 00:
The Veterans Court had jurisdiction to address this issue, and this court has the authority to review whether it had jurisdiction based on Cook.

[00:00:38] Speaker 00:
Mr. Bean is before the court today following a Veterans Court decision that ignored Cogburn, Clemens, and Travestead, and that 38 USC 7104A requires the board to address all questions in unbounder.

[00:00:51] Speaker 03:
Mr. Jack, let me ask you one question to sort of get to the end here.

[00:00:54] Speaker 03:
In your brief, when you saw it mandamus, you asked for an order directing.

[00:01:02] Speaker 03:
Well, let me ask you, is that the first time you represent Mr. Bean when he appealed to the Veterans Court?

[00:01:07] Speaker 03:
Yes, Your Honor.

[00:01:09] Speaker 03:
OK.

[00:01:09] Speaker 03:
All right.

[00:01:11] Speaker 03:
You saw it mandamus, and you said send it back for a decision on the unadjudicated claims, correct?

[00:01:18] Speaker 03:
Yes, Your Honor.

[00:01:19] Speaker 03:
It looks to me like in your brief, you're asking us to, you say the court should therefore reverse the Veterans Court's decision and order the VA to grant Mr. Bean his service-connected benefits.

[00:01:34] Speaker 03:
I don't think we have the authority to do that.

[00:01:36] Speaker 03:
I think if we agree with you, we could vacate the decision of the Veterans Court and remand for further proceedings as appropriate.

[00:01:46] Speaker 03:
But I don't think we can

[00:01:47] Speaker 03:
We can grant the benefits, order the VA to grant the benefits.

[00:01:51] Speaker 03:
Wouldn't you agree that's beyond our jurisdiction?

[00:01:53] Speaker 00:
Your Honor, I think in certain cases this court has gone beyond just remanding.

[00:01:57] Speaker 00:
For example, in Cushman, this court crafted a remedy that was applicable for that particular case.

[00:02:04] Speaker 00:
And in another case recently, this court remanded not just back to the Veterans Court, but then remanded with specific instructions for the board to remand to the regional office to address this issue.

[00:02:15] Speaker 00:
When this court is looking at its jurisdiction to- Well, yes, I agree to address the issue.

[00:02:20] Speaker 03:
But you ask us to- that we order the VA to grant Mr. Bean his service-connected benefits.

[00:02:27] Speaker 03:
We can't do that.

[00:02:30] Speaker 00:
I believe the court has the authority to do so under the broad language of the remand as appropriate.

[00:02:36] Speaker 00:
And the remand would be to order the benefits to be granted because the regional office has already made all the factual findings that are necessary for the grant to take place.

[00:02:48] Speaker 00:
The regional office already found that Mr.

[00:02:51] Speaker 00:
being had an anxiety diagnosis while in service, the regional office has already found that he has the current diagnosis, and the regional office has already found that there is a connection between the two.

[00:03:02] Speaker 00:
That all of these steps have taken place, the regional office just hasn't put it all together to give him the grant.

[00:03:07] Speaker 00:
They've never made this decision, and since it has all taken place, the idea to remand it back with instructions for it to re-adjudicate something that

[00:03:16] Speaker 00:
in a different scenario has already adjudicated seems like a waste of everybody's time.

[00:03:23] Speaker 02:
The first presentation of the claim for current disability based on anxiety, depression, in your view, was when?

[00:03:36] Speaker 02:
1997, Your Honor.

[00:03:38] Speaker 02:
And suppose

[00:03:43] Speaker 02:
We didn't think that that was right, let alone whether, you know, we can think about whether it's right.

[00:03:49] Speaker 02:
What would be the next occasion when that claim was made?

[00:03:55] Speaker 00:
In 2007, Your Honor, when Mr. Bean comes back and requests that the regional office reopen the claim for PTSD, he also specifically makes a claim for anxiety and depression.

[00:04:06] Speaker 00:
And the VA even acknowledges this in the letter that it sent to him, the VCAI letter.

[00:04:12] Speaker 00:
It acknowledges that there is a separate claim for anxiety and depression.

[00:04:16] Speaker 00:
But that regional office decision that granted him PTSD doesn't bother to ever address the separate issue.

[00:04:25] Speaker 02:
be a benefit, I mean, in a colloquial sense, to Mr. Bean if he got relief in the form that as of 2007 or six, he had, in fact, a claim for anxiety depression caused disability.

[00:04:45] Speaker 02:
And that has never been adjudicated or does any benefit to Mr. Bean depend on that claim having gone back to his 1997 filings?

[00:04:58] Speaker 00:
Your honor, the benefits to Mr. Bean, if this court was to find that the claim was starting in 2006, 2007, would be a separate service connection and the rater could determine whether the

[00:05:13] Speaker 00:
symptomatology that he is expressing with the depression and with the anxiety is separate from the already granted service connection for PTSD, which there are several medical opinions that say that these symptoms are separate.

[00:05:25] Speaker 00:
And so he could be receiving service connection for both, and that's under Boggs, that the idea is that these are not all just service connection for mental disability, but are specific diagnoses that are entitled to service connection.

[00:05:37] Speaker 02:
So it could provide an incremental benefit to him.

[00:05:41] Speaker 02:
Yes.

[00:05:41] Speaker 02:
OK.

[00:05:44] Speaker 00:
So Mr. Bean's claim here is really quite simple.

[00:05:47] Speaker 00:
After waiting for the decision since 1997, he wrote in 2012 to the secretary that he had unadjudicated pending claims, just like this court recently stated he should do in May.

[00:05:59] Speaker 00:
And as the veterans court also instructed him to do into Carlo and Ingram, the regional office did issue a decision in response to its filing, but failed to address the specific question that Mr. Bean has raised.

[00:06:11] Speaker 00:
Why do I not have a decision yet on service connection for anxiety and depression?

[00:06:16] Speaker 02:
So it seems to me that the veterans court here said,

[00:06:23] Speaker 02:
in the reconsideration opinion, we don't have jurisdiction to address

[00:06:31] Speaker 02:
whether that the contention that Mr. Bean had a unadjudicated claim because the board didn't rule on that.

[00:06:40] Speaker 02:
Assume that that's just incorrect as a matter of law because the Veterans Court obviously, I think, obviously has jurisdiction to address a claim that was made to the board that the board, and the argument is to the Veterans Court, the board incorrectly declined to consider.

[00:06:58] Speaker 02:
Then the question is, take as just a premise for this, that at least that much is wrong and it needs to go back.

[00:07:10] Speaker 02:
What more, maybe short of award Mr. Bean benefits, can or should we do?

[00:07:18] Speaker 00:
Short of awarding him the benefits outright, the other ideal remedy would be to remand for the Veterans Court.

[00:07:26] Speaker 00:
with orders to remand to the board, to remand to the regional office, to issue a decision on Mr. Bean's claim for service connection for anxiety and depression.

[00:07:40] Speaker 02:
option to consider after saying the Veterans Court got it wrong and saying it didn't have jurisdiction, that the Veterans would be, the Veterans Court has to say, well, was this claim in front of the board?

[00:07:52] Speaker 02:
I'm not actually sure there's any dispute at all about that.

[00:07:56] Speaker 02:
So perhaps the next would be to remand to the board for the board to consider the contention that Mr. Bean had an unadjudicated claim, whether it's a 1997 claim or a 2007 claim,

[00:08:10] Speaker 02:
for service-connected disability benefits based on anxiety and depression.

[00:08:18] Speaker 00:
The board actually acknowledges that that claim was made and had the opportunity to make that statement and just decided not to do so.

[00:08:26] Speaker 00:
So if everybody is in agreement that the Veterans Court had jurisdiction to tell the board to go back and do what it was supposed to do, then that would be an alternative remedy to say to the board, you need to address this.

[00:08:41] Speaker 00:
But there is case law that says if the board believes that there's a pending claim, the correct remedy for the board is to actually remand it for the regional office to adjudicate it in the first instance.

[00:08:52] Speaker 02:
But that's an argument that you could make to the board, right?

[00:08:55] Speaker 00:
That it should remand?

[00:08:56] Speaker 02:
Yes.

[00:08:58] Speaker 00:
Yes?

[00:09:00] Speaker 04:
To be clear, what is the ultimate relief that's being requested?

[00:09:06] Speaker 04:
Is it to take the 100% rating

[00:09:09] Speaker 04:
back to 1997?

[00:09:12] Speaker 00:
No, Your Honor.

[00:09:13] Speaker 00:
It would be to take the 70% rating back to 1997.

[00:09:18] Speaker 00:
From the standpoint of he received the 100% rating based on total disability, individual unemployability.

[00:09:24] Speaker 04:
And in 1990... No, you wouldn't touch the date for the 100%.

[00:09:28] Speaker 04:
You would just take the 70% back?

[00:09:31] Speaker 00:
Yes, Your Honor.

[00:09:32] Speaker 04:
That was requested.

[00:09:33] Speaker 00:
Yes.

[00:09:34] Speaker 00:
At the point in time that Mr. Bean makes this original claim, he was still working.

[00:09:39] Speaker 00:
So the TDIU would not go back all the way.

[00:09:43] Speaker 02:
Can I ask you this?

[00:09:44] Speaker 02:
So there was an April, 2020 regional office rejection of a CUE claim.

[00:09:53] Speaker 02:
And in the course of that rejection, the regional office said, Mr. Bean did not in fact have an, a unadjudicated claim.

[00:10:04] Speaker 02:
That regional office decision of April, 2020 is final because it wasn't appealed.

[00:10:12] Speaker 02:
Why does that not stand in the way that it's the finality of that regional office determination?

[00:10:21] Speaker 02:
Why does that not stand in the way of any further contention on your part that Mr. Bean did in fact have an unadjudicated claim?

[00:10:32] Speaker 00:
Couple responses, Your Honor.

[00:10:35] Speaker 00:
First would be by raising the issue to the board before that regional office decision even came out, Mr. Bean put the question of whether he has unadjudicated pending claims into appellate status.

[00:10:47] Speaker 00:
And so the only way that that particular issue can become final is with a board decision.

[00:10:52] Speaker 00:
The regional office can't assess that because the board hasn't made a decision on that particular part of the issue.

[00:10:59] Speaker 00:
The second would be Mr. Bean didn't raise this claim.

[00:11:02] Speaker 00:
This was a construction of the regional office.

[00:11:05] Speaker 00:
And so to attribute what the regional office did on its own without Mr. Bean making that claim.

[00:11:11] Speaker 02:
I'm sorry, making what claim?

[00:11:14] Speaker 00:
What the regional office considered to be a motion for revision based on CUE for the pending

[00:11:21] Speaker 00:
that the 97 rating decision did not consider whether he had a pending claim, that Mr. Bean didn't raise this at no point.

[00:11:30] Speaker 00:
And it legally doesn't actually make sense because the 97 claim is the original claim.

[00:11:37] Speaker 00:
And so there wouldn't ever be any clear and unmistakable error of a pending claim with the original claim.

[00:11:43] Speaker 02:
And finally the... Because the one necessary premise for clear and unmistakable error is a decision that was clearly and unmistakably erroneous.

[00:11:51] Speaker 02:
And you're saying there just was never a decision.

[00:11:53] Speaker 00:
Exactly.

[00:11:53] Speaker 02:
And I understand that, right?

[00:11:55] Speaker 00:
Okay.

[00:11:55] Speaker 00:
And then my final point would be that the regional office's statement has to be read in the context of what the regional office was trying to decide, which was a motion for clear and unmistakable error.

[00:12:06] Speaker 00:
And so the

[00:12:08] Speaker 00:
review of that is entirely different than what the regional office or the board would do when you're considering looking back at whether the issue has actually been pending and looking for moving forward.

[00:12:23] Speaker 00:
The regional office in that April 2020 decision overstepped its bounds by even making a decision or making any sort of statement regarding that because the issue was before the board and therefore in appellate status and the regional office couldn't touch it.

[00:12:38] Speaker 03:
You're saying, so you're saying Ms.

[00:12:39] Speaker 03:
Zajac, basically, in your view, the April 4, 2020 decision that you've been discussing with Judge Serrano is really not relevant because the issue of appending unadjudged claim was already before the board or had been before the board in 2019 because

[00:13:00] Speaker 03:
Mr. Bean had gone back following the board's 2012 suggestion to the RO, had said, citing the Q regulation, I have an unadjudged claim.

[00:13:12] Speaker 03:
It was denied.

[00:13:13] Speaker 03:
He got an SOC out of it, and then he came back up.

[00:13:17] Speaker 03:
So you're saying we don't need to think about the April 2020 decision.

[00:13:22] Speaker 00:
Exactly, Your Honor.

[00:13:24] Speaker 04:
Exactly.

[00:13:26] Speaker 04:
OK, let's hear from the other side.

[00:13:28] Speaker 04:
Thank you, Your Honor.

[00:13:32] Speaker 01:
Thank you, Your Honor.

[00:13:33] Speaker 01:
May it please the court?

[00:13:35] Speaker 01:
The court should either dismiss for lack of jurisdiction or affirm.

[00:13:39] Speaker 01:
We actually agree with opposing counsel that the regional office has already made all of the relevant determinations that need to be made in this case.

[00:13:47] Speaker 01:
They've actually decided five times explicitly on the record that there was no pending unadjudicated claim related to depression or anxiety in 1997.

[00:13:58] Speaker 01:
Let me step back a little bit to the timeline.

[00:14:00] Speaker 01:
I'm sorry, just to be clear, but the board has not.

[00:14:04] Speaker 01:
No, the board has as well, Your Honor.

[00:14:05] Speaker 01:
The board decided that question in 2012, and that's at Appendix 335, where the board discusses the fact that Mr. Bean had been raising this issue that he had a pending unadjudicated claim.

[00:14:22] Speaker 01:
And the board said, the veteran has complained that in 1997, this is in 2012, this is the board decision that Mr. Bean never appealed.

[00:14:31] Speaker 01:
Okay, so this became final.

[00:14:33] Speaker 01:
The only way to overturn this 2012 board decision is through some kind of a cue claim.

[00:14:38] Speaker 01:
The board said the veteran has complained that in 1997, the RO failed to consider evidence that he was treated for nervousness and anxiety.

[00:14:47] Speaker 01:
and then it goes on and discusses the fact that he's raising this issue, that he had anxiety and nervousness in 1997, and then it says if the veteran believes the RO made a mistake, he can allege Q in the 1997 RO decision.

[00:15:03] Speaker 01:
But before that, in 2008, this is at appendix 482,

[00:15:09] Speaker 01:
the regional office and its statement of the case also considered and discussed Mr. Bean's assertion that he had a pending unadjudicated claim and determined.

[00:15:18] Speaker 03:
Let me ask you though.

[00:15:19] Speaker 03:
You correctly quoted what the board said at 335.

[00:15:24] Speaker 03:
But then as I read it, basically the board's offering Mr. Bean a suggestion.

[00:15:31] Speaker 03:
The board's saying, if you think you have an unadjudicated claim, go and raise a Q claim, right?

[00:15:37] Speaker 01:
Correct, Your Honor.

[00:15:38] Speaker 03:
So he then, it seems to me, does that.

[00:15:44] Speaker 03:
In July of 2012, at appendix 310, he goes back to the RO, and he specifically cites the Q regulation 38 CFR 3.105A.

[00:15:59] Speaker 03:
And he says in that little paragraph there on the form 21-1438, I have an unadjudicated claim.

[00:16:10] Speaker 03:
He loses on that.

[00:16:12] Speaker 03:
The board says, no, you don't.

[00:16:16] Speaker 03:
And I'm sorry, the RO says, no, you don't.

[00:16:21] Speaker 03:
And explains, points out that he doesn't have any unadjudicated claim.

[00:16:26] Speaker 03:
And then he goes back up to the board.

[00:16:30] Speaker 03:
So the board now, in 2019, is sitting there with sort of Mr. Bean coming back after following

[00:16:40] Speaker 03:
the board's suggestion that he go get the claim.

[00:16:43] Speaker 03:
So it seems to me that the unadjudicated claim issue is before the board in 2019.

[00:16:52] Speaker 01:
Your honor, I take issue only with the way that you're reading Appendix 310, I think, is what you were citing.

[00:17:00] Speaker 01:
The language has 21, 41, 38 submission.

[00:17:04] Speaker 01:
He went to the regional office after the board issued its decision in 2012 and said that he did not consider and rejected the notion that he had a pending unadjudicated claim.

[00:17:23] Speaker 01:
And he attempts to submit a Q claim.

[00:17:26] Speaker 01:
I think it's safe to say that this is... He cites the rate.

[00:17:30] Speaker 01:
But the language that he says, and Q claims have to be specific, he says, I am requesting that the VA reconsider the issue of the effective date assigned for my service-connected post-traumatic stress disorder.

[00:17:43] Speaker 03:
under the provisions of thirty eight c f r three point one zero five so he given to you plan at the bottom he says as i agree with you stated i believe he's there address the unadjudicated claim and member he's proceeding pro se at this point he's proceed he's represented by uh... veterans organization but he's not represented

[00:18:03] Speaker 01:
at this point in time.

[00:18:04] Speaker 03:
And it seems to me that the board had before it this claim.

[00:18:12] Speaker 03:
And then it seems to me that the board kind of misreads what was before it in its 2019 decision.

[00:18:18] Speaker 01:
So I mean, the big issue with that observation, Your Honor, is that that's way beyond the jurisdiction of this court.

[00:18:25] Speaker 01:
to consider because the scope of a claim is a fact questioned.

[00:18:31] Speaker 03:
But our jurisdiction here turns on what was before the board.

[00:18:34] Speaker 01:
It turns on that the board made a determination looking at his submissions that he was raising a Q claim with respect to the earlier effective date for PTSD.

[00:18:48] Speaker 01:
The cases that they talk about, the Ingram land of cases,

[00:18:52] Speaker 01:
They all presuppose that there's a reasonable inference from the record.

[00:18:57] Speaker 01:
Like if the board is going to assume greater jurisdiction than the plain language of his submission where he's requesting, he's asserting Q with respect to the effective date of PTSD,

[00:19:10] Speaker 01:
the board would have to conclude that the record reasonably raised this other issue.

[00:19:16] Speaker 01:
But the regional office in 2008, and then again in 2010, had specific, and I want to be specific about their finding because they said there was no indication in 1997, and this is in 2008, this is a finding of the regional office, a factual finding, there's no indication that you were claiming service connection for any other disability and the examination.

[00:19:38] Speaker 01:
So there was only one

[00:19:40] Speaker 01:
exam, I believe only one examination on the record in 1997 that the regional office was considering.

[00:19:47] Speaker 04:
Hey, let me stop you there and tell you what seems to me to be unfortunate about this case.

[00:19:57] Speaker 04:
In 1997, the claim is brought.

[00:20:00] Speaker 04:
The RO holds you didn't make your case.

[00:20:04] Speaker 04:
It has an appeal.

[00:20:08] Speaker 04:
10, 15, and 20 years later, he brings the claim again, and it's granted with progressively increasing levels of disability.

[00:20:20] Speaker 04:
Essentially saying that, yes, we must have made a mistake in 1997, maybe it wasn't our fault, we didn't bring in enough evidence, but it was the same claim, the same disability that was ultimately held to make

[00:20:37] Speaker 04:
compensable.

[00:20:38] Speaker 04:
So what's before us is, therefore, why shouldn't the compensation go back to when this claim was first brought to the attention of the VA, which differentiates it from all of our cases, which hold that yes, you're entitled to a degree of retroactivity, but only measuring from when you first bring the claim.

[00:21:04] Speaker 04:
You first brought the claim, but lost

[00:21:07] Speaker 04:
and didn't appeal.

[00:21:09] Speaker 04:
Now we have all sorts of elaborate, I would say, incomprehensible to the layman of when you can bring Q, when you can appeal this, when you can appeal that.

[00:21:22] Speaker 04:
Things that I think even now, not everyone practicing in this field has deciphered.

[00:21:30] Speaker 04:
This is a fundamental policy question here.

[00:21:35] Speaker 04:
Is there not?

[00:21:36] Speaker 04:
This claim was officially brought to the VA's attention.

[00:21:42] Speaker 04:
It took them 20 years to say, yes, we got it wrong 20 years ago.

[00:21:48] Speaker 04:
And isn't the only question now as to what's to be done to compensate the veterans?

[00:21:57] Speaker 01:
I would only take issue with the one statement of fact that you just made.

[00:22:02] Speaker 01:
The VA did not say, we got it wrong in 1997.

[00:22:05] Speaker 01:
The VA has never said that.

[00:22:07] Speaker 04:
No one says we got it wrong.

[00:22:09] Speaker 04:
This came up with a different answer on exactly the same disability.

[00:22:15] Speaker 01:
No, I'm only pointing out is because it's very important, right?

[00:22:17] Speaker 01:
So this court, the fundamental, the

[00:22:21] Speaker 01:
The big case on finality was the Ambant decision from this court in 2002 in Cook v. Principe.

[00:22:28] Speaker 04:
Does the VA's position depend on whether he was able to prove they made a mistake in 1997?

[00:22:38] Speaker 04:
I think according to the record, the record was not as fully developed.

[00:22:44] Speaker 04:
So it's hard to say that on the evidence presented, it was wrong.

[00:22:50] Speaker 04:
But the ailment, the disability is the same.

[00:22:53] Speaker 04:
So in retrospect, if he had it, if he has it now, as is agreed, he had to have had it then.

[00:23:02] Speaker 01:
Your honor, again, this goes back to the basic case law as well established with respect to clear and unmistakable error.

[00:23:10] Speaker 01:
The VA looked at new medical evidence in 2006 and 2007 when he reopened his claim.

[00:23:17] Speaker 01:
That new medical evidence was not part of the record in 1997.

[00:23:22] Speaker 01:
This court looked at this question in 2002 and said, failure to assist in developing a claim cannot constitute Q.

[00:23:33] Speaker 01:
And the reason is because of statutory interpretation, the court looked at the fact that if Congress wanted to create another exception to finality, it could have done so, but it only provided two possible avenues for overturning a decision that has not been appealed, to assert Q or to reopen the claim.

[00:23:56] Speaker 01:
So unfortunately, Mr. Bean only has two options, or during this process, he only had two options under the law for overturning that decision that he did not appeal in 1997.

[00:24:09] Speaker 01:
And he pursued one of those options, which was to reopen his claim.

[00:24:13] Speaker 01:
But the problem is, when you reopen the claim, you cannot then assign a compensation for proceeding the date when you reopen the claim.

[00:24:22] Speaker 01:
The only option he has.

[00:24:24] Speaker 01:
for getting compensation between 1997 and 2006.

[00:24:27] Speaker 01:
And when he reopened his claim was through some sort of a cue claim with respect to that PTSD determination.

[00:24:35] Speaker 01:
Now he's pursuing a third possible option here.

[00:24:39] Speaker 01:
He's asserting as a matter of fact that in 1997, he also had another claim that was not adjudicated by the RO.

[00:24:49] Speaker 01:
That's a fact question.

[00:24:51] Speaker 01:
And the RO specifically looked at that question way back in 2008, again in 2010.

[00:24:58] Speaker 01:
The board looked at that question in 2012.

[00:25:01] Speaker 01:
The RO looked at that question again in 2015, and then again in 2020.

[00:25:08] Speaker 01:
Five times on the record, the RO looked at that question and said, no, in 1997, you did not have a separate unadjudicated claim for depression or anxiety.

[00:25:20] Speaker 02:
So I want to take the RO out of the picture of this at the moment and just ask, has the board said you did not have a unadjudicated claim based on anxiety, depression,

[00:25:37] Speaker 02:
in your 1997 claim.

[00:25:39] Speaker 02:
I don't think it has said that.

[00:25:41] Speaker 02:
The 335, Appendix 335 says, you say that, if you want to pursue that, go this other route.

[00:25:49] Speaker 02:
It doesn't say, and you did not in fact have that.

[00:25:53] Speaker 02:
The 2015, this is Appendix A49, appeal to the board that resulted in the 2019 board decision

[00:26:04] Speaker 02:
is extremely clear saying, I have this unadjudicated claim.

[00:26:09] Speaker 02:
The board in 2019 doesn't rule on it.

[00:26:13] Speaker 02:
The Veterans Court on reconsideration says, we don't have jurisdiction because the board didn't rule on it.

[00:26:21] Speaker 02:
That proposition that the Veterans Court doesn't have jurisdiction to hear a contention that the board failed to rule on something, that's incorrect as a matter of law, right?

[00:26:32] Speaker 01:
You're talking about the Veterans Court's decision... The decision that we are now reviewing, yes.

[00:26:38] Speaker 01:
I think I read their finding a little bit differently.

[00:26:41] Speaker 01:
I don't think I disagree with you, but the Veterans Court simply made a fact determination that the claim stream

[00:26:48] Speaker 01:
in the board's 2019 decision only dealt with the effective date of post-traumatic stress disorder.

[00:26:54] Speaker 01:
Now that's a fact determination.

[00:26:55] Speaker 01:
It sounds like you would disagree with, but that's the fact determination.

[00:27:00] Speaker 02:
I'm sorry.

[00:27:00] Speaker 02:
The appeal to the board at A49 expressly says, I have this problem with the PTSD and I separately have a unadjudicated claim.

[00:27:12] Speaker 02:
That contention was before the board.

[00:27:14] Speaker 02:
The board didn't rule.

[00:27:16] Speaker 02:
It's not correct, is it, as a matter of law, for the Veterans Court to say that because the board didn't rule on it, we don't have jurisdiction to consider whether it was incorrect that the board didn't rule on it?

[00:27:30] Speaker 01:
Well, the Veterans Court is talking about the fact that it can only consider a claim that has been presented to the board.

[00:27:37] Speaker 03:
So it's also looking at the fact- The claim was presented to the board.

[00:27:41] Speaker 03:
The Veterans Court, as I read the 2019 decision,

[00:27:46] Speaker 03:
It misread, I think, what was before it.

[00:27:50] Speaker 03:
It talks about seeking reconsideration of a board decision.

[00:27:56] Speaker 03:
There's all this discussion you didn't properly see.

[00:28:00] Speaker 03:
I'm sorry, in 2019?

[00:28:01] Speaker 03:
2019 decision.

[00:28:02] Speaker 03:
It says, Mr. Bean, you didn't properly seek reconsideration of the board decision.

[00:28:08] Speaker 03:
But he wasn't seeking reconsideration of the board.

[00:28:11] Speaker 03:
He had made it very clear he was

[00:28:14] Speaker 03:
seeking a determination from the board after he appealed from the RO to which the board had sent him by suggestion.

[00:28:25] Speaker 03:
He's saying, address my unadjudicated claim issue.

[00:28:28] Speaker 03:
And it was squarely there.

[00:28:30] Speaker 03:
Don't you agree, Mr. Sinead, that the unadjudged claim issue was before the board, following up on your discussion with Judge Toronto?

[00:28:38] Speaker 01:
I disagree, Your Honor, because the claim that he made in 2012, after the board decision in 2012.

[00:28:50] Speaker 01:
After the board suggested he make a cue claim.

[00:28:53] Speaker 01:
He made a cue claim.

[00:28:54] Speaker 01:
And his cue claim.

[00:28:55] Speaker 01:
And so that's where the law about

[00:28:58] Speaker 03:
And the Q claim, you look at the document, it includes both the effective date and he also addresses, he says, I have these unadjudicated claims, right?

[00:29:13] Speaker 03:
And the board, okay, that's point one, point two.

[00:29:17] Speaker 03:
Then the board denies that.

[00:29:18] Speaker 03:
I'm sorry, the RO denies it, right?

[00:29:21] Speaker 01:
Yes, Your Honor.

[00:29:22] Speaker 03:
Then he comes up to the board and he says,

[00:29:27] Speaker 03:
The RO turned me down on the unadjudicated claims.

[00:29:33] Speaker 03:
Here's my unadjudicated claim contention, right?

[00:29:38] Speaker 03:
So we agreed now, he has presented the unadjudicated claim contention to the board, right?

[00:29:47] Speaker 01:
He's talking about it, but he's appealing a Q claim that was about the PTSD decision.

[00:29:54] Speaker 03:
No, the Q claim in the document, and Judge Toronto walked us through it, and I mentioned it earlier, it clearly refers at the bottom to his uneducated claim.

[00:30:08] Speaker 03:
I think it's a little bit of a crab reading to say that the reference to the Q regulation in that document only is talking about a better effective date.

[00:30:21] Speaker 03:
I mean, remember, I'm amazed this Mr. Beam got as far as he did pro se for so long.

[00:30:27] Speaker 03:
But he says, he cites the Q regulation and he makes two statements, one effective date and two unadjudicated claims.

[00:30:36] Speaker 01:
He's filing a Q claim and asking for an earlier effective date for PTSD.

[00:30:42] Speaker 03:
And again, in 2006... And he's also filing a Q claim with respect to uneducated claims.

[00:30:48] Speaker 03:
That's what the board had told him to do.

[00:30:51] Speaker 01:
The board said in 2012, if you've got this... None of the fact-finders in this record have concluded that, Your Honor.

[00:30:59] Speaker 01:
The fact-finding that was done at the Veterans Court in the

[00:31:03] Speaker 03:
board level was that his claim was related to the... But you read the board's 2012 decision.

[00:31:10] Speaker 03:
It says if you think you have an unjudged duty claim, go back to the RO.

[00:31:16] Speaker 01:
It says if you think there's something wrong with that, if you think there's something wrong with 1997, you can file a Q claim.

[00:31:23] Speaker 01:
It was debatable whether he could do that because, again, what are we talking about?

[00:31:30] Speaker 01:
We're talking about possible

[00:31:32] Speaker 03:
um, error that the RO made... They said that statement though, but I think they said that statement respectfully in response to his arguments about an unadjudicated claim.

[00:31:45] Speaker 01:
I mean, it... In 2012, in his decision that he didn't appeal.

[00:31:49] Speaker 01:
where they rejected that argument.

[00:31:51] Speaker 03:
Yeah, he didn't appeal because he followed the board's suggestion and went back to the RO.

[00:31:56] Speaker 03:
The board said, if you think you've got an unadjudicated claim, go back to the RO.

[00:32:01] Speaker 03:
That's what he did.

[00:32:02] Speaker 03:
And then the RO denied it.

[00:32:04] Speaker 03:
And he came back up to the board.

[00:32:06] Speaker 03:
And there he is in 2019.

[00:32:08] Speaker 03:
And the board just overlooks the fact that the unadjudicated claim that it told him to address before the RO is now back up before it.

[00:32:19] Speaker 03:
I can't come to any of the different reading.

[00:32:22] Speaker 01:
Well, again, that's a factual determination that you're making about the extent of his claim.

[00:32:29] Speaker 03:
But we have to look, as Judge Torano was saying, we have to determine what was properly before the board.

[00:32:34] Speaker 03:
In other words, if there was something properly before the board, the Veterans Court should have addressed it.

[00:32:42] Speaker 01:
Well, as a matter of law, that issue definitely was not properly before the board, because

[00:32:47] Speaker 01:
2012, he needed to either ask for reconsideration on the board's 2012 decision, or appeal the board's 2012 decision, or assert Q in the 2012 decision.

[00:33:01] Speaker 01:
Well, why does he have to... He wasn't challenging the board's decision.

[00:33:04] Speaker 01:
He has to, as a matter of law.

[00:33:06] Speaker 03:
You know, the board told him to go back.

[00:33:09] Speaker 01:
The board says...

[00:33:11] Speaker 01:
If the veteran believes that the RO made a mistake in its decision, he can file a claim alleging clear and unmistakable error in the 1997 RO decision.

[00:33:21] Speaker 01:
It doesn't say, go file a Q claim with respect to your anxiety or depression question.

[00:33:27] Speaker 01:
It says that there's no unadjudicated claim.

[00:33:30] Speaker 03:
But I think in the context of the discussion, it's hard to escape the conclusion that what they were talking about was the unadjudicated claim.

[00:33:42] Speaker 03:
We have to look at it in the context of the dialogue that had been going on.

[00:33:48] Speaker 01:
Okay, Your Honor.

[00:33:48] Speaker 01:
I mean, you potentially disagree with the VA fact-finders on how they've interpreted this decision of the board.

[00:33:57] Speaker 03:
What if we conclude that the board erred in concluding what it had before?

[00:34:06] Speaker 01:
Okay, that would be, you would be stepping beyond your jurisdictional boundaries to make a fact determination about the extent of the claim.

[00:34:16] Speaker 01:
I think if, I mean, that's our legal position.

[00:34:21] Speaker 01:
I think at most this could be remanded to the Veterans Court to reconsider that issue.

[00:34:29] Speaker 01:
But the problem is that at the end of the day, he doesn't have a lot of,

[00:34:36] Speaker 01:
The ultimate fact determination that they're asking somebody to make about whether or not there's an unadjudicated pending claim in 1997 has already been conclusively determined in decisions that he didn't appeal.

[00:34:50] Speaker 01:
I mean, he would have to assert some kind of a cue claim with respect to the 2008 RO decision, the 2010 decision, or the board decision from 2012.

[00:35:03] Speaker 04:
Okay, I think we understand your position.

[00:35:07] Speaker 04:
Anything else you want to ask the governor?

[00:35:12] Speaker 04:
I have some rebuttal on this, did Jack?

[00:35:17] Speaker 00:
Your honors, I think you pretty much made my points for me in your questions and discussion with opposing counsel.

[00:35:23] Speaker 00:
So if your honors have

[00:35:25] Speaker 00:
Any further questions?

[00:35:26] Speaker 00:
I'd be more than happy to answer them.

[00:35:28] Speaker 00:
If not, I would concede the rest of my time.

[00:35:31] Speaker 02:
Can you say a word about our jurisdictional limits and whether those limits would make it improper?

[00:35:39] Speaker 02:
What those limits would preclude us from saying about what the paper record seems to reveal?

[00:35:51] Speaker 00:
I think that there is no question of fact here.

[00:35:54] Speaker 00:
I think that in the 2019 May board decision, it specifically acknowledges that Mr. Bean raised this issue and then it simply didn't address it.

[00:36:06] Speaker 00:
So by acknowledging that it is part of what he says, it says he argued that the board should have considered whether she should have been service connected for depression and anxiety.

[00:36:16] Speaker 00:
That is an acknowledgement that that issue was before it and it just ignored it.

[00:36:21] Speaker 00:
So I think this court is not going into whether it was a question of the scope of the claim, because the board has already told you what the scope of the claim was.

[00:36:31] Speaker 00:
It just didn't address that.

[00:36:32] Speaker 00:
So I think we don't even need to get into that part of this court's jurisdiction, because it's just the question of law.

[00:36:39] Speaker 00:
Did the board and the Veterans Court properly consider its own jurisdiction?

[00:36:43] Speaker 03:
Isn't it the case that it appears that in the April

[00:36:47] Speaker 03:
28th, 2021 decision, if I've got the date right, that the remand that the Veterans Court, the single judge order remanding to the board, where the Veterans Court said in that order, you should consider this claim.

[00:37:08] Speaker 03:
So the Veterans Court at that point was taking the position that this claim was there, correct?

[00:37:13] Speaker 00:
Yes, Your Honor.

[00:37:14] Speaker 03:
But then the judge withdrew that order, took it back, and eventually came out the way she did now, correct?

[00:37:22] Speaker 03:
Correct.

[00:37:24] Speaker 00:
I see that my time is up.

[00:37:25] Speaker 00:
Thank you very much for your time.

[00:37:29] Speaker 04:
Thank you.

[00:37:30] Speaker 04:
That concludes the court's arguments for this afternoon.

[00:37:35] Speaker 04:
Thanks to both counsels.