[00:00:00] Speaker 02:
Our next case for argument today is 22-1863, Castro versus McDonough.

[00:00:10] Speaker ?:
Mr. Carpenter, please proceed whenever you're ready.

[00:00:19] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Albert Castro.

[00:00:24] Speaker 01:
Mr. Castro seeks the following relief from this court in this appeal.

[00:00:28] Speaker 01:
He asked first that this court find that the Veterans Court had a duty upon receipt of his January 23, 2016 letter to the Veterans Court that was date stamped by the Veterans Court as having been received on February 1, 2016, which is found in Appendix 96 to 97, that that document should have been docketed by the Veterans Court as correspondence as a possible notice of appeal.

[00:00:56] Speaker 01:
and then issuing an order for Mr. Castro to advise the court as to whether or not he did or did not desire to appeal the board's October 2015 decision.

[00:01:10] Speaker 01:
Had that been done, all of the various additional circumstances that took place in this court, or excuse me, in this case, over the next number of years up until the... Okay, so Mr. Carpenter, let me just make sure, because this is one of the messier procedural cases that I've seen.

[00:01:30] Speaker 02:
Oh, yes it is.

[00:01:31] Speaker 02:
So, let me just make sure I understand a little bit about what happened from a factual standpoint.

[00:01:36] Speaker 02:
So, Mr. Castro served in the U.S.

[00:01:39] Speaker 02:
Navy and then he filed a claim some years later for PTSD.

[00:01:45] Speaker 02:
He did.

[00:01:46] Speaker 02:
And that claim was sort of repeatedly denied in various bodies.

[00:01:53] Speaker 02:
at various locations.

[00:01:56] Speaker 02:
But ultimately, it was granted, correct?

[00:01:59] Speaker 02:
It was.

[00:01:59] Speaker 02:
And so the ultimate conclusion is that he does, in fact, have PTSD, that it was, in fact, a result of his service.

[00:02:08] Speaker 02:
Correct.

[00:02:09] Speaker 02:
And he is now receiving benefits.

[00:02:12] Speaker 02:
Yes.

[00:02:12] Speaker 02:
And this case is about whether or not he should have gotten benefits back to an earlier date and time based on one of his filings.

[00:02:22] Speaker 01:
not just whether the benefits should have started in what year did the benefits actually start at what year I believe it was 20 I Think it's February 2nd 2016 2015 that's correct So it'd be the difference between October of 2011 the date that he filed his original claim and the date of the

[00:02:50] Speaker 01:
presumed date of reopening.

[00:02:53] Speaker 02:
Okay, so there's no question he's got PTSD.

[00:02:55] Speaker 02:
There's no question it's related to his military service.

[00:02:58] Speaker 02:
The only question is what is the date on which his benefits should have begun?

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

[00:03:04] Speaker 02:
Okay, and so why do you think it should go back to October 11 or October of 2011?

[00:03:12] Speaker 01:
Because we believe, Your Honor, that the his

[00:03:17] Speaker 01:
Correspondence with the Veterans Court constituted January 23rd 2016 and that's an appendix 96 to 97

[00:03:33] Speaker 01:
and that was date stamp received by the Veterans Court.

[00:03:36] Speaker 01:
The Veterans Court in response to that correspondence merely forwarded to the Board of Veterans Appeals with no instructions and no directions to the board as to what to do with that documentation and no direct response to Mr. Castro.

[00:03:51] Speaker 01:
As a consequence, Mr. Castro presumed that his board decision was final.

[00:03:58] Speaker 01:
But it was not in fact final, because if there was in fact an appeal, then that would have suspended the finality until the disposition of his appeal.

[00:04:09] Speaker 01:
That never happened because the Veterans Court did not docket that correspondence as a notice of appeal.

[00:04:17] Speaker 01:
There is currently no case law or statutory provision that addresses specifically this circumstance.

[00:04:27] Speaker 01:
This Court has found in a number of cases that when a notice of appeal is misfiled,

[00:04:32] Speaker 01:
uh... with the agency or with the board that that misfiling counts as a filing with the court here however we're talking about a direct correspondence that was within one hundred twenty days from the case about whether his new member twenty-fifteen finally is that the one

[00:04:59] Speaker 02:
Is that the one that you're arguing was an appeal that therefore made the October 2015 decision not be final?

[00:05:07] Speaker 02:
Is it November 15th filing?

[00:05:11] Speaker 02:
Are November 2015 filing?

[00:05:12] Speaker 02:
I'm just trying to keep track in my head of which ones you're talking about because the government has argued you forfeited some of these arguments by not specifically making them below.

[00:05:22] Speaker 02:
So I'm just trying to sort of pin you down so I know exactly which documents you're saying are the ones that resulted in a non-final decision.

[00:05:32] Speaker 01:
We believe that his February 4, 2016 correspondence to the court

[00:05:40] Speaker 03:
constituted a potential notice of appeal, which suspended as a matter of...

[00:06:03] Speaker 03:
document as a possible notice of appeal and you just agreed with Judge Moore's question and you said the November 2015 communication is a notice of appeal.

[00:06:13] Speaker 03:
Are you arguing all three are notices of appeal or are you just trying to make sure?

[00:06:17] Speaker 01:
What I'm saying, Your Honor, is that within the 120-day period from the date of the board's decision, the October 2015 decision, there was

[00:06:30] Speaker 04:
correspondence received by the Veterans Court on multiple occasions that would have indicated that there was a potential appeal.

[00:06:53] Speaker 01:
Let me just go to the actual documents as opposed to my notes, Your Honor.

[00:06:56] Speaker 01:
I apologize.

[00:06:58] Speaker 01:
That's a good thing.

[00:07:28] Speaker 01:
I believe that the best one is the one that I started with.

[00:07:31] Speaker 04:
January 23rd, 2016?

[00:07:34] Speaker 01:
Yes, Your Honor.

[00:07:35] Speaker 01:
Page 96?

[00:07:35] Speaker 01:
Yes.

[00:07:36] Speaker 01:
And that that was date stamp received by the Veterans Court on February 1st, 2016.

[00:07:43] Speaker 02:
But here is, am I wrong about this?

[00:07:46] Speaker 02:
Isn't this issue still pending before the CABC and docket number 21-6507?

[00:07:52] Speaker 02:
So isn't this an issue that hasn't actually been resolved by the lower tribunal yet?

[00:07:57] Speaker 01:
I do not believe so, Your Honor, because what has been stayed is an expectation that Mr. Castro will come forward and show that that document was a notice of appeal.

[00:08:13] Speaker 01:
That then puts the burden on him to have made that showing how many years later after the correspondence was made.

[00:08:23] Speaker 01:
What I'm suggesting is that that improperly shifts the burden to the veteran, that the veteran should have been put on notice by the Veterans Court in 2016.

[00:08:33] Speaker 02:
But how is this a question of law?

[00:08:35] Speaker 02:
Unfortunately, and I'm just going to say this for the students, benefits, we don't have the right to review fact-bindings in these kinds of cases.

[00:08:42] Speaker 02:
We can only review legal questions.

[00:08:45] Speaker 02:
And whether something constitutes a notice of appeal or not is a question, a fact.

[00:08:50] Speaker 02:
And so we surely can't look at that January 23rd, 2016 document and make an assessment as an appellate court about whether factually that is or is not qualified as a notice of appeal.

[00:09:02] Speaker 02:
So we have to, all we can do is review whatever the CABC did do on legal questions, right?

[00:09:07] Speaker 02:
So how do we give you the relief that you're seeking under those circumstances?

[00:09:11] Speaker 01:
Well, I believe that that relief is possible based upon a finding of law

[00:09:16] Speaker 01:
that the correspondence based upon a legal determination that correspondence from a pro se veteran in this system to the veterans court that would possibly be a notice of appeal

[00:09:36] Speaker 01:
suspends the finality of that board decision.

[00:09:40] Speaker 02:
And then in this case... Under what law?

[00:09:42] Speaker 02:
Like, what regulation are we interpreting?

[00:09:45] Speaker 02:
What statute are we interpreting?

[00:09:47] Speaker 02:
How can I do what you're asking?

[00:09:53] Speaker 01:
It goes to 7266, the notice of appeal statute, which authorizes

[00:10:03] Speaker 01:
persons adversely affected by a board decision to seek review by the Veterans Court.

[00:10:09] Speaker 01:
And upon the receipt of a notice of appeal, the board decision that is being appealed becomes non-final until such time as the Veterans Court makes a disposition on that notice of appeal.

[00:10:25] Speaker 01:
And it is that suspension of finality that undermines the various and assundery proceedings that were undertaken by a pro se appellate who is suffering from a psychiatric disability to proceed to reopen a claim, to establish that he has in fact submitted new and material evidence,

[00:10:46] Speaker 01:
to establish that he is in fact entitled to that and then he brings a separate claim because he thinks that the board decision in 2015 was final and so he brings a cue action.

[00:10:59] Speaker 01:
That cue action then ends up in two consolidated cases in front of the Veterans Court.

[00:11:06] Speaker 01:
One that deals with the effective date of the grant of service connection on a claim to reopen.

[00:11:12] Speaker 01:
But a claim to reopen as a matter of law is predicated on a previously disallowed claim.

[00:11:18] Speaker 03:
There was no previously disallowed claim here.

[00:11:31] Speaker 03:
in that November 2015 correspondence that there was a clear and unmistakable error.

[00:11:37] Speaker 03:
Doesn't that mean?

[00:11:39] Speaker 01:
He does, Your Honor.

[00:11:40] Speaker 01:
And he thought that there was a clear and unmistakable error because that was a final board decision.

[00:11:45] Speaker 01:
But if that final, if that board decision was not final because there was a notice of appeal submitted to the Veterans Court, then no Q claim can lie.

[00:11:55] Speaker 01:
Yes, he did try to assert

[00:11:57] Speaker 03:
But you're saying the notice of appeal would have occurred at a later time than the letter urging Q. Because it did, because we're talking the letter asserting Q was the first communication.

[00:12:14] Speaker 01:
I'm saying that the assertion of Q has to be predicated based upon the case law with a final decision.

[00:12:22] Speaker 01:
There was no final decision.

[00:12:24] Speaker 03:
My question to you is, does it matter that his assertion of Q... No, it does not matter.

[00:12:30] Speaker 01:
I'm sorry, Your Honor.

[00:12:31] Speaker 03:
I apologize.

[00:12:32] Speaker 03:
I didn't answer my question.

[00:12:34] Speaker 03:
I just wanted to make sure I asked it correctly.

[00:12:37] Speaker 03:
And so you're saying the timing doesn't matter.

[00:12:40] Speaker 01:
No.

[00:12:40] Speaker 01:
What matters is, was there or wasn't essentially a prima facie reason to believe

[00:12:48] Speaker 01:
that there was non-finality in the board's decision.

[00:12:52] Speaker 01:
And that exists in this record because there was this communication.

[00:12:58] Speaker 02:
I absolutely agree with you.

[00:12:59] Speaker 02:
The problem is I don't see how that is anything other than a fact-finding that I don't have the authority to make.

[00:13:05] Speaker 02:
And so I don't know what to do about it.

[00:13:06] Speaker 02:
I mean, we have these situations, like with Mr. Castro, where we've got an honorable veteran that served his country and ended up with PTSD.

[00:13:16] Speaker 02:
And unfortunately, at a time when the government wasn't recognizing PTSD.

[00:13:20] Speaker 02:
And so these veterans were not getting the benefits that they deserved when they deserved them.

[00:13:24] Speaker 02:
But Congress did not see fit to give me fact-finding review authority.

[00:13:28] Speaker 02:
Because you know, I find for you every day of the week, Mr. Carpenter.

[00:13:31] Speaker 02:
But I don't have that power.

[00:13:33] Speaker 02:
So I don't see how I get past my own limitations, which only allow me to address legal errors in this kind of case.

[00:13:41] Speaker 02:
I don't see how I can get around that.

[00:13:42] Speaker 01:
Well, Your Honor, you're reviewing

[00:13:44] Speaker 01:
a decision of the Veterans Court that made legal determinations regarding two pending appeals that were consolidated.

[00:13:53] Speaker 01:
And in one, they affirm.

[00:13:56] Speaker 01:
They cannot possibly have affirmed because they had no jurisdiction.

[00:14:00] Speaker 01:
You can't have jurisdiction over a question of effective date on a reopened claim if there was no previously disallowed claim as a matter of law.

[00:14:11] Speaker 01:
And the Veterans Court affirmed that decision.

[00:14:14] Speaker 01:
That was an error of law.

[00:14:16] Speaker 01:
That error of law affects the consolidated case in which the court has now opened below another proceeding.

[00:14:25] Speaker 01:
And if that proceeding proceeds only on the basis of whether or not the document submitted was or was not a notice of appeal, the likelihood is Mr. Castro is going to lose on that issue because that misframes the issue as a matter of law.

[00:14:42] Speaker 01:
Then we're back here for another appeal on that case.

[00:14:46] Speaker 01:
And poor Mr. Castro here, like a tennis ball, is being bounced back and forth across the net

[00:14:52] Speaker 01:
in which the institutions that are supposed to be protecting him are simply not doing their job.

[00:14:59] Speaker 01:
And I believe this court has jurisdiction to order the Veterans Court to recognize their own error of law in not taking appropriate action back in 2016.

[00:15:13] Speaker 01:
If that determination is made,

[00:15:16] Speaker 01:
then that means the board's decision was not final and nothing that happened in these other proceedings is relevant.

[00:15:38] Speaker 05:
May it please the court and the UO with the Justice Department here for the Secretary of Veterans Affairs.

[00:15:43] Speaker 05:
There are basically two overarching issues in this case.

[00:15:45] Speaker 05:
One relates to waiver forfeiture.

[00:15:47] Speaker 05:
We title it jurisdiction in our briefs.

[00:15:49] Speaker 05:
But that's the first issue where we contend that Mr. Castro has waived many of the arguments that he is currently raising here on appeal.

[00:15:57] Speaker 05:
And this court is precluded from considering them, particularly his arguments related to the AMA.

[00:16:02] Speaker 05:
The second issue is, and this assumes that the court has jurisdiction, of course, is whether Mr. Castro's reading of the AMA and its application in this case is correct.

[00:16:11] Speaker 05:
Mr. Castro's counsel has not really raised those arguments here on appeal, so we will sort of diminish our focus on that.

[00:16:17] Speaker 05:
What I do want to focus on is, Judge Morrison, with your questions about what's the primary issue here.

[00:16:22] Speaker 05:
I do think you're correct.

[00:16:23] Speaker 05:
The primary issue relates to what is the proper effective date for Mr. Castro's grant of PTSD and TDIU benefits.

[00:16:31] Speaker 05:
The VA and the board conferred him a starting date, an effective date of February 2nd, 2016.

[00:16:38] Speaker 05:
The Veterans Court affirmed that decision based on prevailing law within the Veterans Court based on cases like Warren and Sears, which indicate that when you reopen a claim, the starting date or the effective date is generally the date at which you reopen the claim.

[00:16:54] Speaker 05:
Here, there's no dispute that Mr. Castro

[00:16:56] Speaker 03:
reopened his claim on February 2nd, 2016.

[00:17:15] Speaker 03:
would then change the timing, right?

[00:17:18] Speaker 05:
So that's sort of the second question.

[00:17:19] Speaker 05:
And I think, Judge Stoll, you're correct.

[00:17:21] Speaker 05:
It's sort of focused on whether that issue is still pending below as part of the Veterans Court's adjudication as you

[00:17:26] Speaker 05:
know the Veterans Court separated out that portion of the case and is now adjudicating that issue.

[00:17:31] Speaker 05:
So the argument that Mr. Carpenter, my friend on the other side, is raising now seems a bit premature because it's presently pending below.

[00:17:38] Speaker 05:
And what he's insisting that this court do is usurp the Veterans Court's role in making that initial determination in the first instance.

[00:17:46] Speaker 02:
It's pending below in the form of a Q claim, right?

[00:17:50] Speaker 05:
So it's taken sequentially.

[00:17:52] Speaker 05:
First, whether it is a notice of appeal, and if it is, you can't bring a Q claim because the claim is non-final.

[00:17:58] Speaker 05:
But assuming it isn't a notice of appeal, then the Veterans Court would have to address the Q portion of it.

[00:18:05] Speaker 02:
Okay, so this was a very difficult case to wrap my head around.

[00:18:12] Speaker 02:
So just to make sure, so you're telling me what's still pending below.

[00:18:15] Speaker 02:
And this is at the veterans court, not the board, right?

[00:18:19] Speaker 02:
Correct.

[00:18:20] Speaker 02:
He's a question of whether or not the January 23rd 2016 filing should be construed as a notice of appeal.

[00:18:30] Speaker 02:
Correct.

[00:18:31] Speaker 02:
And that's what's still pending below for resolution in the first instance?

[00:18:35] Speaker 02:
That is correct.

[00:18:36] Speaker 02:
And what standard is the CABC using to make that determination?

[00:18:43] Speaker 05:
I'm going to presume it's de novo because it's a question of law.

[00:18:46] Speaker 05:
It's going to be interpreting its own rules as to what constitutes a notice of appeal.

[00:18:50] Speaker 05:
There are two subparts to that.

[00:18:51] Speaker 05:
Subpart A is this mechanical feature.

[00:18:53] Speaker 05:
What was included within the notice?

[00:18:57] Speaker 05:
I think the Veterans Court has already held, mechanically he's met all the requirements of subpart A. Then the second part under the Veterans Court's rule, subpart B, is based on the contextual indicators, what was Mr. Castro's intent.

[00:19:10] Speaker 05:
And that's where the Veterans Court initially said, well, the board's correct that it doesn't seem that Mr. Castro's intent actually was to file a notice of appeal, but then on

[00:19:19] Speaker 05:
that in hindsight after a motion for conservation vacated that decision said you know what the board can't make that determination in the first instance we're going to open a separate case and we're going to make that determination for ourselves so that's what's on appeal now.

[00:19:30] Speaker 03:
And why, what's the hold up in resolving that case?

[00:19:34] Speaker 05:
I think it's because Mr. Kashgar will appeal to this court.

[00:19:37] Speaker 02:
But no, but that's a separate case that's on a parallel track.

[00:19:41] Speaker 02:
That case shouldn't be staked because of us.

[00:19:43] Speaker 05:
Right, but I think one of his arguments as part of this case was that it's super confusing.

[00:19:48] Speaker 05:
I grant you each judgment.

[00:19:49] Speaker 02:
This is like the messiest one of these I've ever had.

[00:19:52] Speaker 05:
It's extremely messy.

[00:19:53] Speaker 05:
It's a transfer for me as well.

[00:19:54] Speaker 05:
So reading the briefs, I had to read it multiple times.

[00:19:56] Speaker 05:
But I think what Mr. Castro is arguing is

[00:19:58] Speaker 05:
stay the first case because what I'm arguing in the second case will eradicate what's going on in the Veterans Court.

[00:20:05] Speaker 05:
Like we can basically just make it move because if you accept my argument here, whatever's happening below with the Veterans Court is irrelevant.

[00:20:14] Speaker 03:
So you're saying that Mr. Castro asked for the Veterans Court to stay that case but they're going to determine whether the

[00:20:23] Speaker 03:
I guess, January 2016 letter was, in fact, a notice of appeal?

[00:20:29] Speaker 05:
I don't know if he asked.

[00:20:30] Speaker 05:
I know he filed a motion for stay on one of the dockets.

[00:20:33] Speaker 05:
What I do know is the Veterans Court said, after it separated one of the consolidated cases and said, we're going to establish whether the January 23 letter is a notice of appeal, said, we're going to treat this as a separate appeal, and we're going to address the case in due course.

[00:20:50] Speaker 05:
And then what happened was Mr. Castro filed a motion for stay pending appeal to this court.

[00:20:55] Speaker 03:
So I asked you, I said, did the veterans word stay in?

[00:20:59] Speaker 03:
And you're saying you don't know whether they stay in the case or not.

[00:21:02] Speaker 03:
Do you know a stay request was made?

[00:21:04] Speaker 05:
I know a stay request was made.

[00:21:05] Speaker 05:
I don't see a stay entry on the docket of the 20, whatever the... Why stay that?

[00:21:11] Speaker 02:
That case, that's the potential to resolve everything, and then I wouldn't be sitting here in this mess.

[00:21:16] Speaker 05:
I think there's a possibility that that could happen.

[00:21:19] Speaker 05:
But the Veterans Court did separate out.

[00:21:22] Speaker 02:
Here's the thing.

[00:21:23] Speaker 02:
I'm just going to tell you my feelings about this case.

[00:21:27] Speaker 02:
My feelings about this case are as follows.

[00:21:30] Speaker 02:
Who cares that in November of 2015, Mr. Castro, who was pro-safe, wrote the words clear and unmistakable error, or clear and unmistakable whatever.

[00:21:40] Speaker 02:
He doesn't know.

[00:21:41] Speaker 02:
He's not a lawyer.

[00:21:42] Speaker 02:
He's a veteran with PTSD.

[00:21:45] Speaker 02:
So if we're looking at what his intent was, how is his intent in that document not clearly, clearly to demonstrate that he thinks he should win and that they wrongly decided his case in October 2015?

[00:22:00] Speaker 02:
I don't see how the Veterans Court below, when they do get to this issue, could reach any conclusion other than that.

[00:22:07] Speaker 03:
And also the January 2016 letter, which was sent to the Veterans Court requesting reopening and or review for his PTSD claim.

[00:22:18] Speaker 02:
Why wouldn't that be understood to be a noticeable?

[00:22:20] Speaker 02:
I mean, I know I can't make these fact findings in the first instance, counsel, but you seem like a very reasonable man.

[00:22:26] Speaker 02:
Why don't you settle this?

[00:22:28] Speaker 02:
Seriously.

[00:22:29] Speaker 02:
I know the government feels like it should never settle anything, but why not settle this?

[00:22:33] Speaker 02:
You got a veteran with PTSD.

[00:22:34] Speaker 02:
And you've got a guy who clearly repeatedly filed stuff wanting to show that the decision was wrong.

[00:22:40] Speaker 02:
So how is that not?

[00:22:42] Speaker 02:
Why aren't we just looking at this?

[00:22:44] Speaker 02:
What kind of a situation is this?

[00:22:45] Speaker 05:
Well, Judge Moore, the important point, I think, from our perspective, and this is Justice Department perspective, is that there is an adjudication still going on below that's currently within the purview of the DA.

[00:22:57] Speaker 02:
You don't have to have that go on.

[00:22:57] Speaker 05:
You could settle this case.

[00:23:01] Speaker 05:
I think we need to let the adjudicated process happen as it relates to whether the January 23 letter.

[00:23:10] Speaker 02:
Why?

[00:23:10] Speaker 02:
That is just a fact question.

[00:23:12] Speaker 02:
That is just a in the weeds minutiae fact question related to whether or not the November 2015 document or the January 2016 document, as you said, everything's resolved in Mr. Castro's favor except this last question.

[00:23:27] Speaker 02:
What was this man's intent?

[00:23:29] Speaker 02:
The man with PTSD who's not a lawyer, what was his intent?

[00:23:31] Speaker 02:
His intent was to let you know that you got it wrong and you should have gotten his benefits.

[00:23:34] Speaker 02:
I don't know how you can stream those documents any other way.

[00:23:38] Speaker 05:
Look, Judge Moore, I grant you that if, you know, we... And if that's the case, settle this.

[00:23:41] Speaker 02:
I grant you that if we were to look at this... Why would you disaster through one more minute of this nonsense?

[00:23:45] Speaker 02:
How long has this case been going on?

[00:23:47] Speaker 05:
The first claim was filed in 2011.

[00:23:49] Speaker 05:
The second claim was filed in 2016.

[00:23:52] Speaker 05:
But I'll grant you, reasonable minds can differ on what

[00:23:55] Speaker 05:
the January 23rd letter actually was.

[00:23:58] Speaker 05:
But what happened below was the board said that wasn't an appeal.

[00:24:01] Speaker 05:
The Veterans Court initially affirmed that decision and said, look, we don't see how this constitutes a notice of appeal.

[00:24:07] Speaker 05:
And I think, actually, the part that the Veterans Court really got hung up on was the fact that Mr. Kasker said, look, I'm pursuing my claims before the VA or the RO and also the board.

[00:24:18] Speaker 05:
And then he sent it to the Veterans Court and said, I'm not sure this should have gone to you.

[00:24:21] Speaker 05:
And so that was actually some language.

[00:24:23] Speaker 05:
The Veterans Court said, well, look, this sort of is an indicator of intent on whether he wants to appeal.

[00:24:27] Speaker 05:
He's not even sure whether it should have gone to the Veterans Court.

[00:24:29] Speaker 02:
Well, why do you think he's not sure?

[00:24:32] Speaker 02:
Because he's a veteran with PTSD and not a lawyer.

[00:24:34] Speaker 02:
He doesn't know where to file it.

[00:24:36] Speaker 02:
All he knows is something's wrong, and I need my benefits.

[00:24:40] Speaker 05:
I don't want to speak too out of turn because it's not my purview, but it would be hard just in general to settle a case where you had two favorable adjudications indicating that it wasn't a notice of appeal.

[00:24:51] Speaker 02:
It's not hard to settle a case when it's the right thing to do.

[00:24:55] Speaker 05:
And the Veterans Court is addressing that issue now.

[00:24:57] Speaker 04:
I think that's the only thing I wanted to- Maybe you can answer a housekeeping question for me.

[00:25:00] Speaker 04:
Sure.

[00:25:01] Speaker 04:
So you mentioned that there was no stay on the docket list, like there's been the motion filed

[00:25:06] Speaker 04:
but the stay hasn't been entered.

[00:25:08] Speaker 04:
Has anything else happened on the docket post that motion?

[00:25:11] Speaker 04:
So it's almost like a de facto stay because there's nothing going on as far as you know?

[00:25:15] Speaker 05:
If I could, I don't know, maybe if I look at the docket today there will be a new entry, but last I checked there wasn't any further activity on that pending issue.

[00:25:26] Speaker 05:
I don't want to belabor the point.

[00:25:28] Speaker 05:
I had some prudential

[00:25:29] Speaker 05:
waiver, forfeiture arguments.

[00:25:31] Speaker 05:
We raise them in our brief.

[00:25:32] Speaker 05:
Mr. Cascio's argument under the AMA, pages 31 through 35 of our response brief, we address them there.

[00:25:38] Speaker 04:
Oh, sorry.

[00:25:40] Speaker 04:
Oh, yeah.

[00:25:41] Speaker 04:
I have a question.

[00:25:41] Speaker 04:
But yeah, you go as well.

[00:25:43] Speaker 04:
Maybe I'll sneak one in.

[00:25:44] Speaker 04:
Go for it.

[00:25:46] Speaker 04:
What about the timeline points?

[00:25:49] Speaker 04:
There was a question that Judge Stoll asked your opposing counsel about, did it matter whether the

[00:25:54] Speaker 04:
The Q mentioned in November of 2015 occurred before the potential notice of appeal in January 2016.

[00:26:03] Speaker 04:
Can you tell me whether it matters to you in terms of that timing one occurring before the other?

[00:26:08] Speaker 05:
I think it sort of can.

[00:26:09] Speaker 05:
It depends on how probative a fact finder wants to make that because technically a Q claim is supposed to come after the appeal is closed and the fact that Mr. Kasher bought the Q claim

[00:26:18] Speaker 05:
after the board decision became final, but before he had filed what he calls a notice of appeal now, would indicate that he thought, we're done.

[00:26:25] Speaker 05:
I'm not going to appeal it.

[00:26:26] Speaker 05:
Therefore, I'm filing my cue motion.

[00:26:28] Speaker 05:
That was in November 2015.

[00:26:30] Speaker 05:
But Judge Moore, I think I'm going to grant you your point here.

[00:26:33] Speaker 05:
He has PTSD.

[00:26:35] Speaker 05:
So maybe he just doesn't know the operative procedure.

[00:26:37] Speaker 03:
So it's kind of nonsensical to seek, given the standard and burden of proof

[00:26:42] Speaker 03:
It's a much higher bereavement proof.

[00:26:46] Speaker 03:
Much harder, correct.

[00:26:49] Speaker 03:
Right.

[00:26:52] Speaker 05:
But let me just put an endorsement here on the VA.

[00:26:55] Speaker 05:
What the VA did here, I think was exactly what it should do, which it said, look, we don't know if this is a cue motion or a reconsideration motion, or we're going to treat it as both.

[00:27:04] Speaker 05:
And then it did treat it as both, giving Mr. Castro sort of the benefit of the doubt, given that he was a pro se.

[00:27:10] Speaker 05:
So I think the VA handled that aspect of it the right way.

[00:27:13] Speaker 05:
It later got this January 23rd letter.

[00:27:15] Speaker 05:
The Veterans Court got it.

[00:27:17] Speaker 05:
It had some verbiage in there that caused the Veterans Court to doubt that that was a notice of appeal and sent it to the board.

[00:27:22] Speaker 05:
So that's how we find ourselves in the present procedural posture.

[00:27:25] Speaker 05:
If there are no further questions, we respectfully.

[00:27:28] Speaker 02:
Well, let me, you know, I actually want to ask you an AMA related question.

[00:27:31] Speaker 02:
Which is why do you think this is a dismiss for lack of jurisdiction?

[00:27:36] Speaker 02:
I mean, I isn't there a question of law here, which is whether the CDC properly applied the pre pre AMA version of the statute.

[00:27:43] Speaker 02:
Isn't that a question of law?

[00:27:44] Speaker 05:
It's generally a question of law, but I think you have to apply the principles of waiver under Foreshee, which is this court's 2002 en banc decision.

[00:27:52] Speaker 05:
And it doesn't fit under any of those exceptions to waiver.

[00:27:55] Speaker 05:
And here, I think you have a very clear indication from Mr. Castro's counsel that he actually was waiving the arguments under the AMA.

[00:28:02] Speaker 05:
If you look at page six of the Veterans Court's decision, this is footnote one, where the Veterans Court actually says, this is the last sentence,

[00:28:10] Speaker 02:
So this is prudential.

[00:28:11] Speaker 02:
You're making a prudential.

[00:28:12] Speaker 02:
It's a prudential argument.

[00:28:13] Speaker 02:
Correct.

[00:28:13] Speaker 02:
Yeah, because there's no doubt we have the authority to review it, correct?

[00:28:17] Speaker 05:
If it fits under one of those exceptions, right.

[00:28:19] Speaker 05:
Right.

[00:28:19] Speaker 05:
The court could review it.

[00:28:20] Speaker 05:
But again, this is page six of the Veterans Court decision.

[00:28:24] Speaker 05:
Note one, there's no assertion that the new statute, which is the AMA, or the rule, should apply here.

[00:28:28] Speaker 05:
So there's no assertion by Mr. Castro.

[00:28:30] Speaker 03:
Another place where- Can I ask you something else?

[00:28:32] Speaker 03:
Sure.

[00:28:32] Speaker 03:
Did you also go to Bell to cite JA205?

[00:28:35] Speaker 05:
Exactly.

[00:28:35] Speaker 05:
That's where I was going next, where he actually says, this is a legacy case, just outright in his emotion for reconsideration.

[00:28:41] Speaker 05:
So to me, that's a very clear indication that he's waiving the arguments, and he's represented by counsel at that point.

[00:28:47] Speaker 04:
Can you sum up what relief you'd like us to give you?

[00:28:50] Speaker 05:
We think the Veterans Court's decision should be affirmed.

[00:28:53] Speaker 02:
Affirmed or dismissed?

[00:28:54] Speaker 02:
Yeah.

[00:28:55] Speaker 02:
Wait a minute.

[00:28:56] Speaker 02:
Wait, you mean you didn't know my answer to that?

[00:28:57] Speaker 02:
Oh, I'm sorry.

[00:28:58] Speaker 05:
No, I spoke too quickly.

[00:28:59] Speaker 04:
Or is it?

[00:29:00] Speaker 04:
I'm glad you need some answers.

[00:29:06] Speaker 05:
You're right.

[00:29:07] Speaker 05:
Prudential waiver, it's not a jurisdictional issue, I don't think.

[00:29:14] Speaker 04:
Could be an affirmative part, dismissive part?

[00:29:17] Speaker 02:
I want to answer one way or the other.

[00:29:19] Speaker 02:
I'll see what you'd like us to do.

[00:29:20] Speaker 05:
I would say.

[00:29:21] Speaker 02:
In the red brief, you said we like jurisdiction over the same argument.

[00:29:24] Speaker 05:
I know that's what we wrote in our brief.

[00:29:26] Speaker 05:
But I do think the argument actually fits better under this waiver forfeiture, prudential considerations test.

[00:29:31] Speaker 05:
I guess I'd have to look back.

[00:29:32] Speaker 03:
Would that be an affirmative part?

[00:29:34] Speaker 05:
Yeah.

[00:29:34] Speaker 05:
I'd have to go back to Forshee to figure out how it was procedurally handled.

[00:29:38] Speaker 05:
But whatever Forshee.

[00:29:40] Speaker 02:
You'd be happy with either an affirmative or a dismissive.

[00:29:41] Speaker 05:
I would, yes.

[00:29:42] Speaker 02:
Thank you very much.

[00:29:51] Speaker 02:
three minutes.

[00:29:52] Speaker 01:
Thank you.

[00:29:52] Speaker 01:
May it please the Court, Your Honor.

[00:29:54] Speaker 01:
I thank the Court for its kind indulgence.

[00:29:56] Speaker 01:
This is a very challenging case.

[00:29:58] Speaker 01:
On behalf of Mr. Castro, I wish to thank you for encouraging the government to do the right thing.

[00:30:04] Speaker 01:
Unfortunately, I do not believe the message will be received and it will be up to you to decide how to proceed with this.

[00:30:11] Speaker 01:
What the Court has encouraged is the correct remedy.

[00:30:15] Speaker 01:
This matter should end.

[00:30:17] Speaker 01:
I have nothing further to say unless there's further questions from the

[00:30:20] Speaker 03:
I just want to know, did Mr. Castro seek stay of the Veterans Court stock?

[00:30:28] Speaker 03:
He did.

[00:30:29] Speaker 03:
Why?

[00:30:31] Speaker 00:
Because he believed that he could not prevail on the Q claim, and he believed that he would not prevail.

[00:30:40] Speaker 03:
But if he were the first to determine, just let me see, I understand that first they would determine whether in fact he filed a nuisance appeal before ever considering the Q claim.

[00:30:48] Speaker 03:
And so if they thought he fought a nose and a heel, then they would consider that.

[00:30:52] Speaker 03:
But why state that, if that's the issue, essentially, that's being presented to us?

[00:30:58] Speaker 01:
Because A, he thought there would be additional delay in making that determination.

[00:31:02] Speaker 02:
You say he thought he thought.

[00:31:03] Speaker 02:
Was he represented by counsel at that point?

[00:31:04] Speaker 01:
Yes.

[00:31:06] Speaker 01:
Yes, he was.

[00:31:09] Speaker 01:
I'm not sure it's appropriate for me to suggest that I disagree with counsel's decision, but regardless, the point is that the length of time that it would take to litigate that issue

[00:31:20] Speaker 01:
is no different, in my view, than the length of time it takes to litigate this issue.

[00:31:25] Speaker 01:
And what Mr. Castro is seeking... Well, you're litigating some good sound bites.

[00:31:30] Speaker 02:
Didn't we, though, for if you have to litigate this issue?

[00:31:34] Speaker 01:
Yes.

[00:31:35] Speaker 01:
And that's what I want to thank the panel for.

[00:31:38] Speaker 01:
Very good.

[00:31:39] Speaker 01:
That's, I think, important to Mr. Castro.

[00:31:42] Speaker 02:
We thank both counsel whose case is taken under submission.