[00:00:00] Speaker 03:
Our next case is Davis v. McDonough, appeal number 22-1247.

[00:00:05] Speaker 03:
Mr. Cacquez, when you are ready.

[00:00:11] Speaker 01:
Yes, Your Honor.

[00:00:13] Speaker 01:
Thank you, and may it please the Court.

[00:00:15] Speaker 01:
And on behalf of Mr. Davis, I want to thank this Court for hearing his appeal.

[00:00:20] Speaker 01:
Excuse me.

[00:00:22] Speaker 01:
Although the issue in Davis is obviously forefront in the prior case, I think that the ruling in Davis is a slightly simpler error that was made by the court.

[00:00:34] Speaker 01:
The Veterans Court committed three errors, but I think that the first error is the most important in that it ignored 19.31B.

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which is binding on the VA when it held that a rating decision can finalize a claim after an appeal has been initiated.

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The regulation says the agency of original jurisdiction will furnish the appellant and his or her representative a supplemental statement of the case if, and under B1, the agency of original jurisdiction

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receives additional pertinent evidence after a statement of the case, but before it is certified to the board.

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This is what happened in this case.

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The Veterans Court in our case assumed that Mr. Davis was correct in his initial allegation of error to the Veterans Court, that the evidence submitted was new and material.

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New and material evidence should be read to be at least pertinent evidence, which triggered the obligation of a supplemental statement of the case.

[00:01:39] Speaker 04:
Do you agree that your arguments based on 3.156C would seek the same effective date as your arguments based on 3.156B?

[00:01:48] Speaker 01:
It could, Your Honor.

[00:01:50] Speaker 01:
The problem with that with that Well, yes, your honor it yes, but the problem is is that before three point one five six C can apply there must be a final decision

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And we don't know if there's a final decision until we know whether 3156B and 19.31B were properly applied by the Veterans Court.

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So if there was still a pending claim, either because a supplemental statement of the case wasn't given, because the other regulations dictate that until that supplemental statement of the case is given,

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The time to file the substantive appeal and complete the appeal to the board does not start to run.

[00:02:36] Speaker 01:
Or if 3.156, Your Honor.

[00:02:39] Speaker 02:
Excuse me.

[00:02:41] Speaker 02:
Still for the moment, we said that we don't have jurisdiction because of the fact that it's an interim decision.

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In other words, we said the third prong of Williams wasn't met.

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And it goes back.

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And what you would be doing, you'd be arguing 3.156.

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the 156C issue before the board, correct?

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

[00:03:03] Speaker 02:
Would you be conceding before the board that you couldn't prevail because there hadn't been a decision in the 3.156B issue?

[00:03:16] Speaker 02:
I mean, the way you were just saying now, you would concede.

[00:03:22] Speaker 02:
I can't believe you'd concede before the board that you couldn't.

[00:03:24] Speaker 01:
Oh, absolutely not, Your Honor.

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But if this court were to affirm

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the Davis ruling and that incorrect reading of 3156B and Bond, then we would really be left with nothing.

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And so the issue of whether... You'd be left with 156C.

[00:03:43] Speaker 01:
Well, yes, Your Honor, that is true.

[00:03:46] Speaker 01:
Yes.

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And conceitedly, that would offer the potential for the earlier effective date to the 2001 claim.

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But again, we emphasize that we cannot apply 3156C unless there is a final claim.

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And if the claim is not final, either because of the misapplication of 19.31 or 3.156B,

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then there is no final decision and the new service records would not be reviewed under 3156C but under 5107B where they're required to review all the evidence of record or 7104A where the board considers the entire record.

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And so the

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The Veterans Court held that it doesn't matter what the title is on the document so long as they send some information.

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But as we outlined in our brief, the notice that comes in a statement of the case or a supplemental statement of the case informs the veteran what they can appeal to the board.

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line of precedent, and the regulations themselves say that the time to submit the substantive appeal cannot begin to run until that statement of the case or the supplemental statement of the case has been given to the veteran.

[00:05:06] Speaker 04:
Are you elevating form over substance when you're saying it has to have that statement of the case or supplemental statement of the case?

[00:05:13] Speaker 01:
No, Your Honor, because the regulation says that the agency of original jurisdiction will furnish

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the appellant a supplemental statement of the case.

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It doesn't say it may.

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It doesn't say it will furnish some response.

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It says very specifically that it will furnish the supplemental statement of the case when pertinent evidence is received between the time of the statement of the case and the time to complete the appeal, which occurred in this decision.

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The original rating decision was rendered in December

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And in May the following year, and again in October, November, depending on how the Veterans Court kind of labeled it all as October, of the following year, well within the 12 months, this additional evidence was received.

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The statement of the case was given in October.

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And within a few weeks of that statement of the case, the second batch of what the Veterans Court assumed was new and material evidence.

[00:06:10] Speaker 02:
You're saying the new and material evidence to be the evidence with respect to Lupus?

[00:06:14] Speaker 02:
Yes, Your Honor.

[00:06:15] Speaker 02:
Now, I could be wrong, but I think Ms.

[00:06:18] Speaker 02:
Zach is just going to say that, well, no, wait a minute.

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They couldn't use a supplemental statement of the case because this was

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material different from what was involved in the case before, and that knocks out a supplemental statement of the case, because a supplemental statement of the case can't be used for that.

[00:06:38] Speaker 02:
Maybe I'm wrong, but I think that's what the government's arguing.

[00:06:41] Speaker 01:
Yes, that is the government's argument, Your Honor, but my response to that is that the Veterans Court assumed that it was new and material.

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And it cannot be new and material unless it's related, unless it's material to the then pending claim.

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Because the definition under 3156 says that it's material to the prior pending claim.

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And so that's the assumption that we're working on from the Veterans Court.

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They did not touch or reach the issue of whether it is new and material.

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They assumed that it was.

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And with that assumption,

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we have to then treat it as at least pertinent evidence under the regulation 19.31.

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Now, if it goes back and they determine, no, it's not material and it is not pertinent, then we have a factual matter that is better left to the board or the court.

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And I would point out, too,

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that the board never really reached that issue at all.

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And the Veterans Court is making assumptions and using the harmless error rubric to foreclose or close this appeal.

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But again, we emphasize that the supplemental statement of the case cannot be replaced by a new decision when the regulation is mandatory, will furnish.

[00:07:57] Speaker 04:
Can you address the jurisdictional issue under millions in particular?

[00:08:02] Speaker 01:
Yes, Your Honor.

[00:08:03] Speaker 01:
So from my reading of the government's brief, they disputed only the third element in that it would not be mooted on remand.

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But I turn back to the issue that in order to have an application of 3156C,

[00:08:26] Speaker 01:
there has to be a final decision.

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And we don't know whether there's a final decision until we know whether the Veterans Court properly applied.

[00:08:34] Speaker 03:
But the Veterans Court has said there was a final decision, right?

[00:08:38] Speaker 01:
They did, Your Honor.

[00:08:39] Speaker 01:
But if that rests on an incorrect application or an incorrect interpretation of the regulation.

[00:08:44] Speaker 03:
Would you agree that the 3.156C decision could be reached on the assumption that it is final?

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or on the understanding that it's final, at least as determined by the Veterans Court.

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And therefore, there can be a determination, no doubt.

[00:09:00] Speaker 03:
You just don't know whether, eventually, that decision might be altered.

[00:09:07] Speaker 01:
I think that's correct, Your Honor.

[00:09:10] Speaker 01:
I would agree with that.

[00:09:10] Speaker 01:
But I would point to the language in Joyce v. Nicholson, which was cited by the government.

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And I'm looking on page 49 of that.

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And it's just after they pull the quote from Williams.

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And they say, the sole exception is where the remand action itself would independently violate the rights of the veteran.

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And we believe that the regulation 3.156B, as Mr. Carpenter argued just in the prior case, gives a substantive right to a determination that is responsive to the evidence that tells the veteran not only whether it is a new claim,

[00:09:49] Speaker 01:
If we'll recall, in Bond, the RO treated it as a new claim.

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The RO responded to the evidence and said, I don't remember what the outcome was, but this is our response to your request for a new claim.

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And this court said, and this is 1367 to 68 in Bond, the obligation persists even where, as here,

[00:10:10] Speaker 01:
The RO has concluded that the submission in question also supports a new claim for an increased rating, for neither law nor logic dictates that evidence supporting a new claim cannot also constitute new and material evidence relating to a pending claim.

[00:10:24] Speaker 03:
What about the statement in Joyce that even if two separate claims are involved, Joyce's asserted separate claims are inextricably intertwined because both claim compensation for the same disability?

[00:10:36] Speaker 03:
Isn't that the case here?

[00:10:40] Speaker 01:
To be honest, Your Honor, I really struggled with that particular passage out of Joyce.

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But again, I would point back to the language that I quoted from there, that where the remand action would violate a right of the veteran.

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And here again, we believe a substantive right is given to the veteran under 3156B that cannot be overshadowed or overlooked.

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simply because another portion of that regulation may apply.

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Mr. Davis is entitled to a determination under 3156B.

[00:11:13] Speaker 01:
He has not gotten that yet.

[00:11:14] Speaker 01:
The board said it wasn't new material.

[00:11:16] Speaker 01:
The Veterans Court assumed it was, but still didn't tell him whether it is.

[00:11:20] Speaker 01:
And now we're here before this court without having been told for now over 10 years whether that evidence is or is not new and material, which Bond says 3156B requires.

[00:11:33] Speaker 03:
OK.

[00:11:33] Speaker 03:
You're into your rebuttal time.

[00:11:35] Speaker 03:
Would you like to stop here?

[00:11:37] Speaker 01:
I'll save the rest of it in response to the government.

[00:11:40] Speaker 01:
Thank you, Your Honor.

[00:11:41] Speaker 03:
OK.

[00:11:42] Speaker 03:
Let's save yours.

[00:11:43] Speaker 00:
May it please the court.

[00:11:44] Speaker 00:
I'll start on the jurisdictional issue and why the court shouldn't even reach the merits of this appeal.

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And it's under this court's strict interpretation of the final judgment rule.

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This court generally does not take jurisdiction over cases that have a non-final remand order.

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And that's exactly the circumstances that we have here.

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As Your Honor noted, we have a remand under 3.156C.

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based on the lupus assertion, so the same disability.

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It's seeking the same benefit.

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And so the veteran here could receive all of the benefits that he's seeking on appeal at the board that's currently on remand.

[00:12:21] Speaker 00:
The reason that we have this final judgment rule is for cases just like this.

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that a veteran doesn't have one claim in a forum like the Federal Circuit and the same exact claim in a forum like the board.

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And so there would be no detriment to the veteran here for this court to dismiss the appeal for lack of jurisdiction.

[00:12:41] Speaker 00:
Let the board, in the first instance, make the C determination

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And then under Joyce, as we've explained in our brief, the veteran can appeal if he loses both the B and the C determination, which may not even be necessary if he prevails at the board.

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So this court doesn't need to reach the merits.

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If the court were to reach the merits, this case is even easier than the one that the court heard a moment ago with the Pickett case, because the veteran here admitted that the 2004 rating decision

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was responsive to both of his 2003 statements.

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And I would point the court to Appendix 10, where the Veterans Court noted that.

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It said, the veteran admits that there was nothing further the VA could have said as it relates to

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the 2003 statements.

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In fact, he conceded at oral argument that the 2004 decision was responsive to both the 2003 decisions.

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So under Bond and Burrough and 3.156b, if what's required is a direct assessment of new and material evidence, the veteran here admitted that he got that.

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His only remaining claim is what Judge Cunningham asked about was this form over substance.

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And respectfully, Your Honors, that's sort of besides the point here.

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The reason we have 3.156B is to benefit the veteran and to give the veteran this assessment and determination on the new material evidence, which admittedly happened here.

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There's nothing else that's required.

[00:14:16] Speaker 00:
Had the VA titled its document differently, the same result would be the case here.

[00:14:23] Speaker 00:
And so there's really not only no jurisdiction, but no heir for this court to consider.

[00:14:28] Speaker 04:
Do you agree that the first and second Williams factors have been met, and you're just focused on the third Williams factor in terms of your argument?

[00:14:35] Speaker 00:
No, Your Honor.

[00:14:35] Speaker 00:
I think the third one is very clear.

[00:14:38] Speaker 00:
The first one, for example, whether there was a clear and final ruling on an issue of law, our argument would be this is the application of rules of law.

[00:14:47] Speaker 00:
I understand we've had some discussion on whether that's true or not.

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And so that's a little more nuanced.

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And the second factor is whether the veteran was been, excuse me, whether it adversely affects him.

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And here, he's not adversely affected by going back down to the board because he can receive all of the benefits that he's seeking on appeal either.

[00:15:12] Speaker 00:
But the third one is very clear in this case, and so I think that the court could rest on that.

[00:15:18] Speaker 00:
Thank you.

[00:15:20] Speaker 03:
Thank you.

[00:15:21] Speaker 03:
Mr. DeHaques, you still have some time.

[00:15:23] Speaker 01:
Thank you, Your Honor.

[00:15:25] Speaker 01:
So the Veterans Court did say at Appendix 10 that I had admitted that it was technically responsive, and that's the quote.

[00:15:35] Speaker 01:
And what was meant by that was, yes, they responded to the evidence.

[00:15:41] Speaker 01:
But what was said afterwards, which isn't in the appendix, but what we assert here is that bond requires more than just responding.

[00:15:50] Speaker 01:
And as we argued extensively a moment ago, that a supplemental statement of the case is required.

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It is not formal for substance.

[00:15:59] Speaker 01:
It is a mandatory obligation.

[00:16:01] Speaker 01:
The VA, again, in their own regulations put upon themselves, will furnish the supplemental statement of the case.

[00:16:08] Speaker 01:
And so whether they submitted the supplemental statement of the case, we believe is dispositive.

[00:16:18] Speaker 01:
Think that's all we have unless there are not any other put there any other questions.

[00:16:22] Speaker 01:
We ask that you Decision thank you.

[00:16:26] Speaker 03:
Okay.

[00:16:26] Speaker 03:
Thank you.

[00:16:27] Speaker 03:
Thank counsel for their argument cases are submitted