[00:00:00] Speaker 03:
First case is Brown v. McDonough, 21-2238.

[00:00:07] Speaker 03:
Mr. Dajakis, you reserve three minutes of your time for rebuttal, correct?

[00:00:11] Speaker 04:
Yes, Your Honor, thank you.

[00:00:12] Speaker 03:
Okay, we're ready when you are.

[00:00:15] Speaker 04:
Okay.

[00:00:15] Speaker 04:
May it please the Court.

[00:00:16] Speaker 04:
On behalf of Mr. Brown, I'd like to first thank this Court for the opportunity to present his appeal.

[00:00:22] Speaker 04:
This appeal boils down to a single question.

[00:00:24] Speaker 04:
are the 2011 request for benefit and the 1977 application for benefits the same?

[00:00:32] Speaker 04:
If so, Mr. Brown asks this court to find that when the board determined the scope of the 2011 request for benefits, it also determined the scope of the 1977 request for benefits.

[00:00:41] Speaker 03:
Kelser, can you first address the issue of jurisdiction?

[00:00:45] Speaker 03:
Do we actually have jurisdiction in this case?

[00:00:47] Speaker 04:
Yes, Your Honor.

[00:00:47] Speaker 03:
There's been a remand by the lower court

[00:00:50] Speaker 03:
And we have a pretty firm rule that we do not take an appeal, that we don't exert exercise of jurisdiction in cases where there's a remand below.

[00:01:00] Speaker 03:
There's no finality here.

[00:01:02] Speaker 04:
Typically, Your Honor, yes, there is no finality in a remand order.

[00:01:07] Speaker 04:
However, this case satisfies the rules set forth in Williams.

[00:01:11] Speaker 04:
As we explained in our brief, the legal ruling that we are looking for this court to review is the Veterans Court's order

[00:01:20] Speaker 04:
for the board to review an unreviewable finding of fact.

[00:01:25] Speaker 04:
As we argued there and as I was getting into, there was only one claim adjudicated by the VA throughout this entire claim stream.

[00:01:37] Speaker 04:
When they granted the benefits in 2016, the VA very explicitly adjudicated the 1977 claim.

[00:01:44] Speaker 04:
That fact is undisputed.

[00:01:46] Speaker 04:
the board determined that that claim, which was adjudicated in 2016 and later reviewed both by the higher level reviewer and the board, included a request for radiculopathy and the TDIU rating.

[00:02:00] Speaker 04:
That fact is undisputed.

[00:02:02] Speaker 04:
And under this court's, as articulated in Connolly v. Peek, the application of law to the undisputed facts is a question of law.

[00:02:12] Speaker 04:
And so when the Veterans Court made a

[00:02:16] Speaker 04:
ordered the board to look again at these findings that violated Mr. Brown's right to have a presumed, the finding of fact in his favor under fit under 38 USC 5104.

[00:02:32] Speaker 03:
Are you going to be making these arguments on remand?

[00:02:38] Speaker 03:
Which arguments John?

[00:02:39] Speaker 03:
The ones that you're making now.

[00:02:40] Speaker 04:
On remand to the board.

[00:02:42] Speaker 04:
Yes.

[00:02:43] Speaker 04:
We certainly can.

[00:02:45] Speaker 04:
But our biggest problem with what the Veterans Court did is that the board is bound by the order of the Veterans Court.

[00:02:52] Speaker 04:
It must re-adjudicate the scope of the 1977 claim, regardless of whether it agrees with our argument under 51048 or the law of the case.

[00:03:02] Speaker 01:
But if you ultimately don't prevail on that argument, assuming that we were to dismiss, and you don't prevail on that argument before the board or the CABC,

[00:03:14] Speaker 01:
You can still raise that argument when you come back here, can't you?

[00:03:18] Speaker 04:
I think so, yes, your honor.

[00:03:22] Speaker 01:
So that's not an argument that is lost by virtue of our failing to decide it now.

[00:03:30] Speaker 04:
The argument is not lost, your honor, but his legal right to the protections of 5104A and the legal right to the protections under the law of the case doctrine are forever gone.

[00:03:41] Speaker 04:
he only gets this one chance because the Veterans Court has already reviewed the board's prior decision.

[00:03:47] Speaker 04:
And that is the harm, that is the legal right that he is asserting here to this court that that statute and that rule of law apply to his case.

[00:04:01] Speaker 04:
And the Veterans Court has asked the board to violate precedent and the Congress's mandate that it is a binding finding.

[00:04:09] Speaker 01:
But wouldn't that argument

[00:04:11] Speaker 01:
be applicable to any case in which you're arguing that there should have been a disposition in the veteran's favor by the Court of Appeals for Veterans' claims, and there wasn't.

[00:04:25] Speaker 01:
And instead, they remanded.

[00:04:26] Speaker 01:
It seems to me you're saying that procedurally, he's been forced to go through a process that he should not have been forced to go through.

[00:04:35] Speaker 04:
I don't think that our argument would apply to every situation, particularly where there are findings of fact at issue.

[00:04:43] Speaker 04:
Perhaps it was some legal rulings.

[00:04:44] Speaker 04:
But I would draw the court's attention to its ruling in Dombach.

[00:04:52] Speaker 04:
And we cited this case in our briefing.

[00:04:56] Speaker 04:
Then the Veterans Court remanded Mr. Dombach's appeal

[00:05:02] Speaker 04:
telling the board that a certain statute, 1154B, did not apply to his case.

[00:05:08] Speaker 04:
And this court held that that shifted the evidentiary burdens.

[00:05:14] Speaker 04:
And that was a final legal determination by the Veterans Court.

[00:05:18] Speaker 04:
And we think this case falls within the gambit of that ruling.

[00:05:22] Speaker 04:
It's somewhat similar.

[00:05:23] Speaker 04:
It's not the same as the government pointed out in their briefing.

[00:05:27] Speaker 04:
The Veterans Court did not interpret a statute.

[00:05:32] Speaker 04:
issue a ruling that shifted the evidentiary burdens on remit.

[00:05:36] Speaker 01:
Now, Dombach, if I recall, it was pre-Williams, right?

[00:05:42] Speaker 01:
Williams is the case that we all are familiar with that set out the rule that the presiding judge just articulated.

[00:05:49] Speaker 01:
So I'm wondering if there's anything post-Williams that would indicate that a situation like this, or even such as Dombach, would

[00:05:59] Speaker 01:
avoid, would lead to the conclusion that a decision without a remand has to be made by this court.

[00:06:08] Speaker 04:
I'm not familiar with any case law post Williams, Your Honor, but I do think that looking at Williams and kind of the whole series of cases that led up to Williams, Dombach informed its decision

[00:06:19] Speaker 04:
and was kind of incorporated.

[00:06:20] Speaker 04:
I read Williams to kind of reiterate all of the case law that talked about final determinations within a remand order.

[00:06:32] Speaker 04:
And I read Dombach to still be good law, because again, it's a legal determination that shifts the evidentiary burden on remand.

[00:06:42] Speaker 04:
And to reiterate, and this to me is the most important aspect that I want to get across to this court, is that the legal right to not have this reviewed

[00:06:54] Speaker 04:
is guaranteed under statute by Congress and under precedent in the law of the case doctrine.

[00:07:00] Speaker 04:
And the Veterans Court order takes that legal right away from Mr. Brown forever, even though he has the opportunity to present it to the board.

[00:07:08] Speaker 04:
And if the board ignores it, present it to the Veterans Court, and eventually come back here, he lost that right forever.

[00:07:15] Speaker 04:
And those are legal rights that are guaranteed to him, again, by Congress and by precedent, both in this court and the United States Supreme Court.

[00:07:25] Speaker 04:
And that really boils down to what the harm is in the Veterans Court's ruling.

[00:07:36] Speaker 04:
And just to touch again on the third aspect of Williams, or the third element of Williams, that there's a substantial risk that this decision will not survive a remand.

[00:07:48] Speaker 04:
Mr. Brown cannot unring this bell.

[00:07:51] Speaker 04:
Once, without intervention by this court,

[00:07:54] Speaker 04:
He will never again receive his legal right to an unreviewable, favorable finding of fact.

[00:08:00] Speaker 04:
And all that matters in this case is that Mr. Brown has a legal right to not have to relitigate this issue, the scope of the 1977 claim.

[00:08:12] Speaker 04:
And the Veterans Court order takes that right away from him.

[00:08:18] Speaker 04:
If there are no further questions, then I will save the bulk of my time for rebuttal.

[00:08:24] Speaker 04:
and see what the government has to say.

[00:08:27] Speaker 04:
Thank you.

[00:08:27] Speaker 03:
Thank you, Kelsey.

[00:08:29] Speaker 03:
Kelsey Ackers?

[00:08:30] Speaker 02:
Yes.

[00:08:30] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:08:32] Speaker 02:
The Court should dismiss this case for lack of jurisdiction under this Court's well-established rule of finality.

[00:08:39] Speaker 02:
As this Court held in Williams and all of the cases that we set in our brief thereafter, this Court generally does not review non-final remand determinations from the Veterans Court.

[00:08:48] Speaker 02:
especially like this court held in Williams, when the Veterans Court remands for the purpose of additional factual findings as a predicate to the Veterans Court reviewing the issues that are presented to it.

[00:08:59] Speaker 02:
That's exactly what happened here.

[00:09:01] Speaker 02:
At the Veterans Court, the parties argued or briefed whether 38 CFR 3.156c applied

[00:09:09] Speaker 02:
to the claim here, whether there was an earlier effective date.

[00:09:12] Speaker 02:
The Veterans Court found that there were no factual findings on the issue made by that board, and the board is the entity responsible for making factual findings as to the scope of the claim.

[00:09:24] Speaker 02:
That's established case law cited at page 21 of our brief.

[00:09:28] Speaker 02:
Because the Board never made the requisite factual findings, the Veterans Court couldn't review the legal issues that were presented on appeal.

[00:09:36] Speaker 02:
And so this was the perfect example of the Veterans Court using its remand authority to gather more facts at the Board so that it could review the arguments that Mr. Brown is now making.

[00:09:47] Speaker 02:
In this case, Mr. Brown would have to show that the three Williams factors are present to overcome the rule of finality.

[00:09:54] Speaker 02:
We've briefed it extensively, but he doesn't meet any of those factors, most obviously the factor that there has to be a clear and final legal determination.

[00:10:04] Speaker 02:
The Veterans Court here did not make a legal determination.

[00:10:07] Speaker 02:
It held it was precluded to do so based on the board's lack of factual findings.

[00:10:12] Speaker 01:
Well, suppose he's right on the merits of his claim that

[00:10:16] Speaker 01:
The effect of the proceedings to date have been to create, in effect, a factual determination as to the scope of the 1977 claim in his favor.

[00:10:29] Speaker 01:
If he's right about that, then why isn't it the case, as he says, that forcing him to go through a further remand for factual determination that's irrelevant to the ultimate determination of the case

[00:10:44] Speaker 01:
is, in effect, taking away the benefit of that kind of automatic factual determination, which should be law of the case.

[00:10:52] Speaker 02:
Well, if it were law of the case, Your Honor, it's never been stated on paper.

[00:10:56] Speaker 02:
Notably, Mr. Brown never cites where the board made this factual finding.

[00:11:00] Speaker 01:
OK, but you're saying now that, well, he doesn't have that clear right.

[00:11:07] Speaker 01:
But accept my hypothetical that suppose we were to conclude he's right about the merits.

[00:11:12] Speaker 01:
He shouldn't have to go.

[00:11:14] Speaker 01:
you know, deal with this factual dispute again.

[00:11:19] Speaker 01:
Is it the case that that means, as he says, that he doesn't now have to go back through the remand process and back through the CAVC?

[00:11:29] Speaker 01:
Or is there a reason that you think that he does?

[00:11:32] Speaker 01:
And if so, why?

[00:11:33] Speaker 02:
Your Honor, I think that he still has to go back through the process, either way, because the Veterans Court remanded back to the board.

[00:11:40] Speaker 02:
And this court doesn't have jurisdiction over the application of law to facts or factual determinations.

[00:11:46] Speaker 02:
So even if, under Your Honor's hypothetical, the Veterans Court missed this factual finding that the board made, that doesn't give this court jurisdiction to review the Veterans Court's determination as to factual findings.

[00:11:59] Speaker 03:
There is an exception to the rule, correct?

[00:12:01] Speaker 03:
That's correct, Your Honor.

[00:12:05] Speaker 02:
Well, for all three of the Williams factors reasons.

[00:12:07] Speaker 02:
First, there was no legal determination.

[00:12:10] Speaker 02:
And I think it's important to pay attention to what counsel said today.

[00:12:13] Speaker 02:
He said that the court is, he's asking the court to review the Veterans Court's legal ruling of reviewing a finding of fact.

[00:12:23] Speaker 02:
So by his own words, the first Williams Factor is not met.

[00:12:26] Speaker 02:
There's not been a clear and final legal determination.

[00:12:29] Speaker 02:
We're talking about a finding of fact.

[00:12:31] Speaker 02:
The scope of the 1977 claim is a finding of fact that must be made.

[00:12:37] Speaker 02:
Under the second Williams Factor, he too cannot mean it.

[00:12:40] Speaker 02:
There's nothing that's prejudicial or harmful

[00:12:44] Speaker 02:
to Mr. Brown by sending this back to the board.

[00:12:47] Speaker 03:
If it's as obvious as Mr. Brown says... I understand his argument to be that if we send it back to the board, it's either going to vitiate or move the federal decision that they already have.

[00:12:59] Speaker 02:
Well, Your Honor, if it's as obvious as Mr. Brown says, and the board already made this factual determination, and it's sent back to the board,

[00:13:07] Speaker 02:
I would imagine the board would say, we've already made this factual determination, and they would make it again.

[00:13:13] Speaker 02:
There would be no reason for the board to change its mind if it already very clearly made this factual finding that Mr. Brown purports it to have made, even though he's never cited anything in the board's decision where it said that.

[00:13:25] Speaker 02:
Mr. Brown essentially infers that the board made this factual finding, but it's in the board's purview to actually say in the first instance,

[00:13:34] Speaker 02:
whether it did make this factual finding or whether it didn't.

[00:13:37] Speaker 02:
So he doesn't meet the second Williams Factor either.

[00:13:39] Speaker 01:
To be clear, you're not contending that if this goes back and the board should make a specific factual finding against him on the question of the scope of the 1977 claim, that he can't later go to the court

[00:13:57] Speaker 01:
the Court of Appeals for Venerable Claims and then ultimately to us and make the argument that he's making now.

[00:14:04] Speaker 02:
Of course he could and that's why he doesn't meet the third Williams Factor because no argument would be mooted.

[00:14:10] Speaker 02:
He could make the same law of the case argument at the Veterans Court and here.

[00:14:15] Speaker 02:
He could come back here and say, Your Honor, there was a legal determination by the board.

[00:14:20] Speaker 02:
It was sent back down.

[00:14:21] Speaker 02:
The board made a contrary legal determination, although it's factual determination.

[00:14:27] Speaker 02:
And they proceeded on that.

[00:14:28] Speaker 02:
So his argument's not going to be mooted, which is the third Williams Factor.

[00:14:32] Speaker 02:
So under all three of the Williams factors, Mr. Brown's appeal cannot proceed in this court.

[00:14:39] Speaker 01:
How do you distinguish Donbach?

[00:14:41] Speaker 02:
Well, I think the main distinguishing factor, Your Honor, is what Your Honor already pointed to, is that it's prior to the seminal case on the final rule of finality topic Williams.

[00:14:52] Speaker 01:
Williams called out Donbach, didn't overrule it, didn't distinguish it on its facts.

[00:14:59] Speaker 01:
Assuming that Dombach survives Williams and the fact that Williams acknowledged Dombach would suggest that it does survive Williams, what's the distinction?

[00:15:12] Speaker 02:
Yeah, and I'm not meaning to suggest that it's overruled.

[00:15:15] Speaker 02:
It's just that it didn't go through the same analysis that Williams did.

[00:15:17] Speaker 02:
So the distinction there is the evidentiary burden was changed on the veteran.

[00:15:22] Speaker 02:
The Veterans Court made a legal ruling that made it harder for the veteran to obtain the relief that he sought.

[00:15:30] Speaker 02:
And so this court explained that because the evidentiary burden changed, that would forever change the course of that litigation.

[00:15:38] Speaker 02:
In this case, no evidentiary burden is changing.

[00:15:42] Speaker 02:
All the Veterans Court has done here is ask that a factual finding be made as to the import of the 2016 decision and 3.156 subsection C, which is exactly what Mr. Brown wants.

[00:15:57] Speaker 02:
He wants relief under 3.156 C because that would give him an earlier effective date.

[00:16:02] Speaker 02:
The Veterans Court is unable to provide the relief that he seeks until there are those factual findings made.

[00:16:09] Speaker 02:
And so, under all three of the Williams factors, Mr. Brown cannot prevail.

[00:16:14] Speaker 02:
And even if he were to somehow get past the Williams factors, the relief that he seeks is similarly outside the jurisdiction of this court.

[00:16:23] Speaker 02:
He's asking this court to tell the Veterans Court

[00:16:27] Speaker 02:
that the 1977 claim is the effective date.

[00:16:32] Speaker 02:
That finding has never been made by the Veterans Court, it's never been made by the board, and it certainly can't be a factual finding made by this court within this court's jurisdiction.

[00:16:42] Speaker 02:
So Mr. Brown's appeal fails under the rule of finality because he can't meet the three Williams factors and because the relief that he seeks is outside the jurisdiction of this court.

[00:16:52] Speaker 01:
Is the decision really a factual decision that we're being called upon to decide, or is it really a legal determination of the effect of the procedures to date?

[00:17:06] Speaker 01:
It seems to me his argument is that this is a deemed fact that's compelled to be deemed by virtue of the legal consequences of what is undisputed that has happened so far in the procedures.

[00:17:21] Speaker 02:
That is what he's arguing.

[00:17:22] Speaker 01:
The problem with that- That's not a factual finding.

[00:17:24] Speaker 01:
That's a legal determination that he is saying was erroneously made by the Court of Appeals for Veterans Claims.

[00:17:32] Speaker 02:
Well, implicit in his argument is that there have been those factual findings, which we dispute, which the Veterans Court has found were not made.

[00:17:40] Speaker 02:
If all the factual findings were made, and we were actually talking about the law of the case, then yes, perhaps it would be a legal question.

[00:17:47] Speaker 02:
But the factual findings have never been made, and I would point, Your Honors, to Appendix 7 at Note 1, for example, where the Veterans Court explained that the Board never talked about the import of the 2016 decision that Mr. Brown now claims is established fact.

[00:18:05] Speaker 02:
Well, it can't be established fact unless the board finds it.

[00:18:07] Speaker 02:
The board's purview is to find facts in these cases, and it didn't in this case.

[00:18:13] Speaker 02:
So there are no established facts, and that's exactly what warranted the remand to the board.

[00:18:21] Speaker 02:
For all those reasons, Jarna, did Jarna have a question?

[00:18:24] Speaker 00:
I did have one little question.

[00:18:25] Speaker 00:
So you typically, and I would say you and your colleagues typically say, dismiss for lack of jurisdiction or affirm.

[00:18:31] Speaker 00:
Listening to your argument, I'm assuming you're really riding the horse of dismiss for lack of jurisdiction.

[00:18:35] Speaker 00:
Is that fair?

[00:18:36] Speaker 00:
That's correct, Your Honor.

[00:18:37] Speaker 02:
I think that's the appropriate posture given what other cases have done in this situation in a veteran appeals non-final remand order.

[00:18:47] Speaker 02:
Thank you.

[00:18:48] Speaker 01:
Let me just ask one further question.

[00:18:50] Speaker 01:
Again, I'm on the question of the Dombach distinction that you were drawing.

[00:18:59] Speaker 01:
Would it not be the case that Mr. Dombach,

[00:19:02] Speaker 01:
had he lost his case up here, and the case had been kicked back to the CAVC and the board, would still have been able to raise the issue that he ultimately prevailed on in a later proceeding before us.

[00:19:19] Speaker 02:
Your Honor, I believe in Dombach, the court, in sort of a cursory manner, one sentence found that he would be precluded from doing so and didn't really expand on that.

[00:19:28] Speaker 02:
But I think that the important thing to note is the Williams factors.

[00:19:31] Speaker 02:
You have to meet all three of them.

[00:19:33] Speaker 02:
So even if he could have raised that later, the evidentiary burden that changed and the adversary nature of remanding, he met those.

[00:19:49] Speaker 02:
In this case, though, Mr. Brown, he could present these arguments again on appeal.

[00:19:54] Speaker 02:
He said so himself here today.

[00:19:56] Speaker 02:
So I don't.

[00:19:57] Speaker 03:
Don't involve the interpretation of a statute.

[00:20:00] Speaker 02:
That's correct, Your Honor.

[00:20:01] Speaker 02:
Exactly.

[00:20:02] Speaker 02:
Under the first Williams factor, that was clear.

[00:20:05] Speaker 02:
It's also missing here.

[00:20:09] Speaker 02:
Thank you, Your Honors.

[00:20:11] Speaker 03:
John, you see you have three minutes of rebuttal time left.

[00:20:14] Speaker 03:
Thank you, Your Honor.

[00:20:17] Speaker 03:
We have more, but that's what you had actually.

[00:20:19] Speaker 04:
Yes, I may need all of it.

[00:20:21] Speaker 04:
That's the remaining, because there was quite a bit that was discussed here.

[00:20:25] Speaker 04:
I just want to start with addressing Judge Bryson's comments.

[00:20:32] Speaker 04:
The hypothetical that you presented, Your Honor, is exactly correct.

[00:20:37] Speaker 04:
The application of undisputed fact to the law is a question of law.

[00:20:45] Speaker 04:
The legal consequence of the proceedings is that the claim granted in the 2006 agency decision was the 1977 claim.

[00:20:54] Speaker 04:
The VA never adjudicated a 2011 claim for benefits.

[00:20:59] Speaker 04:
The 2011 claim for benefits, during the process of that claim, the VA received new service records.

[00:21:06] Speaker 04:
And the VA clearly, and I point the court's attention to the appendix starting at page 86,

[00:21:14] Speaker 04:
where they granted an effective date of 1977 and very clearly articulated on appendix at 91 where they applied 3.156C.

[00:21:27] Speaker 04:
3.156C only applies after

[00:21:32] Speaker 04:
I'm sorry, C3, only applies after C1 has already been established, new service records that are relevant have been presented, and the earlier claim was reconsidered.

[00:21:44] Speaker 04:
So the board's finding with respect to what happened after 2011 directly informs what the scope of the claim that was reconsidered under 3.156 C1.

[00:21:58] Speaker 04:
It did not decide the scope.

[00:22:02] Speaker 04:
it did not mean that your honor did not the board did not make an official finding or in an explicit finding of what the scope of the claim is in those terms that's what you're arguing but the the issue case yes your honor no i what i mean is the board did not use those words it did not use that terminal but that's your case here here you're arguing that that the board made statements or findings

[00:22:26] Speaker 03:
that the 1977 claim is now the new date?

[00:22:34] Speaker 04:
No, Your Honor.

[00:22:35] Speaker 04:
And that was one of the points that I wanted to raise in response to the government.

[00:22:39] Speaker 04:
Mr. Brown has never asked this court, and does not ask this court, to assign an effective date.

[00:22:46] Speaker 04:
That question is for the board to do in the first instance.

[00:22:50] Speaker 03:
you're going to have already made that decision.

[00:22:53] Speaker 03:
We're afraid of losing that decision.

[00:22:54] Speaker 04:
No, no, your honor.

[00:22:55] Speaker 04:
What we are saying that the board determined was that the scope of the claim included a request for TDIU rating and radiculopathy ratings.

[00:23:04] Speaker 04:
Whether he's entitled to those ratings needs to go back to the board to determine, as we pointed out in our brief, the effective date, both under 5110 and 3.156C3.

[00:23:17] Speaker 04:
and I'll quote C3 here because it was applied by the VA, is that the ineffective date

[00:23:25] Speaker 04:
on the date is effective, on the date entitlement arose, or the date VA received the previously decided claim.

[00:23:33] Speaker 04:
So there's two questions that need to get decided.

[00:23:35] Speaker 04:
When did the date entitlement arose, which has generally been construed by the courts, particularly the Veterans Court, to mean when did his disability manifest?

[00:23:45] Speaker 04:
When does the evidence show that he had disability?

[00:23:48] Speaker 04:
Or the date VA received the previously decided claim.

[00:23:51] Speaker 04:
That second part

[00:23:52] Speaker 04:
has already been adjudicated, has already been decided in Mr. Brown's favor, and that's the question that Mr. Brown is challenging here.

[00:24:00] Speaker 04:
That's the issue he's challenging here.

[00:24:02] Speaker 04:
When was the application received?

[00:24:05] Speaker 04:
Then it goes back to the board, and they determine when did his disability manifest.

[00:24:10] Speaker 04:
Because under the board's current determination, it ignored that the VA had already reconsidered his 1977 claim and started in 2011,

[00:24:21] Speaker 04:
instead of 1977.

[00:24:24] Speaker 04:
When the board made the determination that the benefits that he was granted in the 2016 decision included a request for a TDIU rating and a request for the radiculopathy rating,

[00:24:47] Speaker 04:
Just a request, not an entitlement, but a request.

[00:24:51] Speaker 04:
The application of those undisputed facts to the law under 3156C means that the two claims are identical.

[00:25:02] Speaker 04:
Essentially, whether you want to look at them as being identical or as the 2011 claim kind of falling off and being replaced by the 1977 claim, the result is the same.

[00:25:13] Speaker 04:
The VA granted the 1977 claim

[00:25:17] Speaker 04:
And when the board told Mr. Brown that that claim included the TDIU rating and the radiculopathy rating, that means that the 1977 claim required the VA to consider those ratings as well.

[00:25:33] Speaker 04:
And again, that's the very limited remedy that we're seeking from this court is to order the board to

[00:25:43] Speaker 04:
look at the 1977 claim and determine when did his disability manifest so that it can determine the proper ratings.

[00:25:53] Speaker 04:
I'd like to point out, too, that the government acknowledged that Donbach, the reason it was a legal ruling was because it made it harder for him to prove his claim.

[00:26:03] Speaker 04:
It removed a statute.

[00:26:05] Speaker 04:
The Veterans Court essentially said 1154B does not apply to you, Mr. Donbach.

[00:26:10] Speaker 04:
Here, Mr. Brown is asserting the exact same ruling from the Veterans Court.

[00:26:14] Speaker 04:
5104 CA does not apply to you, Mr. Brown.

[00:26:18] Speaker 04:
Law of the case does not apply to you, Mr. Brown.

[00:26:20] Speaker 04:
And our last point is I would, one thing that's been overlooked by all of this is that the law of the case applies to this remand order by the Veterans Court.

[00:26:33] Speaker 04:
The board is bound by this.

[00:26:35] Speaker 04:
The Veterans Court has already made a determination that

[00:26:39] Speaker 04:
No finding with respect to the scope of the 1977 claim has been made.

[00:26:43] Speaker 04:
That is incorrect as the undisputed facts applied to the law.

[00:26:47] Speaker 04:
Thank you.

[00:26:48] Speaker 03:
We have the party's arguments.

[00:26:52] Speaker 03:
We'll take them under advisement.