[00:00:00] Speaker 02:
Number 21, 2341, Deschner versus McDonough.

[00:00:05] Speaker 02:
Mr. Carpenter.

[00:00:06] Speaker 03:
Can it please the Court, Count Carpenter appearing on behalf of Mr. Deshner.

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Before I begin, I must apologize to the Court for having overlooked a footnote in the government's brief at page 8 of their brief.

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It was at the very end of the statement of proceedings.

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In that footnote, the Secretary indicates clearly that the VA now disagrees with the Veterans Court's conclusion that Mr. Deshner would have

[00:00:35] Speaker 03:
been ineligible for scheduler TDIU between the periods of March 2015 and June 2016 if his tinnitus and PTSD were considered to be one disability.

[00:00:47] Speaker 03:
But it seems to me, Your Honor, that that addresses both of the issues that we wish to present to the Court this morning, dealing with the chennery question and with the merit question of whether or not there was or was not a misinterpretation of 4.16.

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is as regards the Chenery issue, the basis for the board's remand in this case on the issue of TDIU prior to the date of June 14th.

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I'm trying to be clear in my own mind what you're drawing from the government's concession.

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The concession is that he'd be eligible for it, but he'd still have to prove his inability to work.

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Well, he would have met the scheduler requirements as he did with the single disability rated 70, which was granted by the board back to the date of June 2016.

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There's an approximate three year period prior to that date in which the board made a determination that it lacked jurisdiction to continue to consider the issue of TDIU and remanded on the basis of a purported lack of jurisdiction.

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We appealed to the Veterans Court and presented to the Veterans Court the question of whether or not the board was obligated to at least have considered under 4.16A2.

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But the concession only goes to, it only has impact, if you turn out to be right, on your construction of common etiology.

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Is that right?

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I don't believe so, Your Honor, because the way that the regulation is written, and I will concede that it is a very long run-on sentence and hard to follow, but it is a provided section after a colon, which is then followed by two descriptors of what constitutes eligibility for TDIU, one being a 70% rating

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with two or more disabilities, one of which is rated at least 40, but a single disability rated at 60% if two or more disabilities are at least, excuse me, are rateable at 60%.

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The decision by the Veterans Court was that Mr. Deshner could not rely upon that provision, but only could rely upon the latter provision of that sentence of 416 before you get to the question of common etiology.

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And in fact, what Judge Peach said was that it was necessary to consider the non-compensable hearing laws

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in order to determine eligibility for a combined 70, which Mr. Deshner clearly does not meet and was not seeking.

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He was presenting to the court an error of law made by the board

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for the failure to consider and apply an applicable provision of law, which was under the plain language of 4.16, an alternative means of obtaining the scheduler criteria.

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It is the continuation or the last sentence if you will of the statement of proceedings below before they begin their summary of argument and it's set out for about a half a page continuing on to page 9 with just one additional line.

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The government points out there that the Veterans Court, I think, found that you did not present your calm mediology argument to the board.

[00:04:35] Speaker 03:
That's correct, John.

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Do we have jurisdiction to review the Veterans Court's determination that you did not present the argument to the board?

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Well, I believe you do, Your Honor, if the Veterans Court relied upon a misinterpretation of the regulation.

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And the government, in our view, has conceded

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that, in fact, the Veterans Court did make a misinterpretation of that portion by including the requirement to have the third disability, the noncompensable hearing loss, considered before you got to the question of common etiology.

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Wait a moment.

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I'm not understanding.

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How is it that if you didn't raise an issue, that even if the board addressed it, that we have jurisdiction over it?

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You have jurisdiction, Your Honor, over the question of interpretation.

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The question of interpretation was presented below and is presented before this Court.

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The Veterans Court question of interpretation was presented.

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Whether or not the board, in the first instance, had jurisdiction over the entire question of TDIU, including the alternative basis for creating scheduler eligibility under 4.

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4.16a.

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4.16a has several alternative ways in which a veteran can qualify for the scheduler rating.

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When the board granted a 70%- Is what you're saying that because the issue of the availability of the rating was raised below that you can make new arguments here in support of that rating?

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I can't make new arguments here.

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I can make new arguments before the Veterans Court, which we did.

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And that new argument had to do with the fact that the board said it lacked jurisdiction.

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And we challenged that on the basis that 4.16A2 provided an alternative means other than just a single rating at 70% for his PTSD for establishing his scheduler eligibility in the approximate year and a half earlier.

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And that the board had a statutory obligation to apply that applicable provision of law.

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7104A makes it clear that the board is required to consider all potentially applicable provisions of law, which was the issue that was before them under the question of TDIU, the only statutory regulatory provision.

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There are plenty of cases where the Veterans Court doesn't consider an issue which wasn't properly raised, right?

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That's correct, Your Honor, but that's under the question of issue preclusion.

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There is only one issue here, and that is an issue of TDIU.

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There are alternative theories for entitlement to TDIU that there should be no reason why a veteran should be prohibited from presenting those when the board was obligated by statute to consider all of those alternative theories.

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When the board said it didn't have jurisdiction, didn't it mean only with respect to extra scheduler TDIU?

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And do you agree that they don't have jurisdiction initially over a request for extra scheduler TDIU?

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Well, I don't, and I did not argue that in the brief, but it is not material to the question here.

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The question here is that the Veterans Court denied Mr. Deshner the opportunity for judicial review as to whether or not he was or was not entitled to have the board consider 4.16A2.

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Is that what happened?

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Was that a denial?

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Did the board simply say it did not have to decide that common etiology issue?

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We believe that it was a denial, Your Honor, and if it was not an explicit denial... Is it incorrect that the board said we don't have to decide this?

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Well, they said that they could not decide it, and that seems to me to be the difference, Your Honor, and they're also asserting that they could not because they did not have jurisdiction.

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Okay, well then, the issue is that they did not decide that issue.

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They did not decide the issue of the year and a half under 4.16A2.

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That's correct.

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And we believe that they had a statutory obligation under 7104A to consider that applicable provision before they decided to issue the remand.

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In other words, there was a about 18-month window here in which the board could have, as it did with the PTSD at 7.

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That's what the Veterans Court sent back down to the board.

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That's one of the decisions that it's to make.

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But, Your Honor, we believe that that is not lawful under their statutory obligation to consider potentially applicable provisions of law.

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They considered one provision of 4.16 and decided that, yes, the board had made an error and that TDIU was

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eligible, excuse me, that the board had not made an error by granting TDIU under 416 because PTSD was rated at 70% alone.

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But in that year and a half prior, he was rated at 50% and 10% for the tinnitus.

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those two combine under the combined rating table and meet the criteria for A2 for being considered under 416 as a single disability.

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And that was the legal error.

[00:10:15] Speaker 04:
If we decide that this appeal is not right, why wouldn't you be able to bring those arguments at a later time?

[00:10:21] Speaker 04:
I mean, all of your arguments.

[00:10:22] Speaker 03:
Well, other than the delay, Your Honor, we certainly would be able to bring them.

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And as a matter of fact, because... The only question here is delay.

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Yes, Your Honor.

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Mr. Deshner was continuously prosecuting this case in order to get the maximum benefit available.

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That's what... What authority do you have that stands for the proposition that you cannot find rightness if delay is involved?

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Well, the authority that we rely upon is the Secretary's own statement of public policy in which, at 4.103,

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of the VA's regulation.

[00:11:02] Speaker 04:
But you don't have a legal case for that.

[00:11:06] Speaker 03:
Well, there are several Veterans Court cases that say that that regulation imposes a duty to maximize on the part of both the VA in the first instance and the board in the second instance.

[00:11:18] Speaker 02:
This may be that this is not a rightness issue, but it seems to be a finality issue.

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in the sense that there's no final judgment that you're not entitled to TDIU.

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We believe that it cannot be a finality issue as a matter of law because there was an alternative basis for consideration.

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And at the very least, he was entitled to a decision by the board saying no.

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If a claim could be resolved in the veteran's favor,

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and there's a remand, our cases say that there's no finality under those circumstances.

[00:12:03] Speaker 02:
Why doesn't that apply here?

[00:12:06] Speaker 03:
Well, it doesn't apply here for several reasons, John.

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First and foremost is that in this case, the only issue that was before the board, besides the question of whether there was a 3.156B violation, was the issue of TDIU.

[00:12:20] Speaker 03:
That's the only issue.

[00:12:22] Speaker 02:
I don't think you're responding to my question.

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We have said, even though it's not a jurisdictional requirement, there's a finality requirement here.

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And given the remand and the possibility that he would secure PDIU under other theories, why is there not a lack of a final judgment here?

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Because I do not believe that that is the proper reading of this court's determination on issue preclusion.

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This court's issue preclusion?

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You're precluding consideration of an alternative theory that would have been... You're not addressing the finality issue.

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If a claim hasn't been finally resolved adversely to the veteran, we don't review a veteran's court decision until the claim has been finally resolved.

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But in this context, Your Honor, what you're doing is permitting the Board to bifurcate issues without authority.

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There is no legal authority for the board to bifurcate an issue once the issue is before them on TDIU, and they make a favorable disposition on that question of TDIU.

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But that is only a partially favorable.

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It's just like when the VA does not grant the maximum scheduler benefit.

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The veteran is entitled to appeal that to the Veterans Court and not have it subdivided out.

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as to whether or not there is or is not an entitlement to the next higher rating.

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In this case, the next higher rating for Mr. Deshner would have been a TDIU in this one year, or excuse me, in this year and a half period.

[00:13:57] Speaker 04:
Well, maybe that type of division can occur whenever you have an extra schedule or a TDIU and a schedule or a TDIU, because those are two different forms of relief.

[00:14:08] Speaker 03:
Well, with respect, Your Honor, I do not believe that's an accurate reading of the regulation.

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I believe the accurate reading of the regulation is that A and B are simply to decide when there is no scheduler rating met at all, then it must go to the director for a decision.

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But in this case, the veteran met the scheduler requirements by

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the decision of both the board and the Veterans Court to determine entitlement to that TDIU based upon the assignment of a 70% rating and TDIU.

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So once the schedule of requirements were met, there is no reason

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send it back to have another VA decision-maker who is separate and apart from the normal VA decision-makers make a determination that is then separately appealable back.

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The only justification for that is delay.

[00:15:05] Speaker 04:
The issue is before... That may be correct, but the belief that you're seeking, you already see that.

[00:15:13] Speaker 03:
With respect, Your Honor, he did not.

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He did not get a decision on his entitlement to TDIU under all potentially applicable provisions of law.

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I will.

[00:15:26] Speaker 02:
Before you sit down, just one clarifying question.

[00:15:29] Speaker 02:
When you say that these two conditions had a common ideology, you're not contending that they resulted from a single combat incident, just that both?

[00:15:41] Speaker 03:
No, that the phrase common ideology is broad enough to include a circumstance in which, during the course of combat,

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he experienced damage to his hearing.

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Different combat incidents.

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It could have been different, could have been the same.

[00:15:59] Speaker 02:
Okay.

[00:15:59] Speaker 02:
All right.

[00:16:00] Speaker 02:
We'll give you two minutes for rebuttal.

[00:16:03] Speaker 02:
Let's see.

[00:16:03] Speaker 02:
Mr. Jordan.

[00:16:06] Speaker 00:
May it please the court.

[00:16:07] Speaker 00:
This court should dismiss.

[00:16:08] Speaker 02:
Is there a finality issue here?

[00:16:11] Speaker 00:
Yes, we believe there's a finality issue because there's a remand below with respect to 4.16B extra scheduler TDIU and also with PTSD in which the board could extend his effective date for PTSD back later, in which case he could potentially meet the scheduler threshold under 4.16A.

[00:16:34] Speaker 04:
I think Mr. Carpenter's arguing that the underlying facts for whatever is on remand or what's being reviewed right now has already been decided.

[00:16:46] Speaker 00:
So my understanding with respect to the director of compensation services, which has been to the board and back, is that there's still fact finding going on.

[00:16:56] Speaker 00:
According to a recent remand decision from 2023, there was some investigation as to whether or not in 2014 and 2015, Mr. Deschner was able to repair classic automobiles and had a clientele.

[00:17:11] Speaker 00:
to do that and that's been remanded for further factual finding because the ultimate inquiry on whether under 4.16 B or A is whether or not he is employable or not.

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A simply requires a certain percentage threshold to be met.

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which case the board can look at that and then under B it's a different decider it's the director of compensation services but the underlying inquiry of employability is still at issue in both of those and that's still subject to fact-finding as to whether or not in 2014 and 2015

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the two years in which Mr. Deshner is seeking for TDIU eligibility is still being found with facts.

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And so there's still the possibility he'd get everything he's asking for with this remand with respect to PTSD and TDIU pursuance to 4.16B.

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And so we contend that this appeal is unripe at this time.

[00:18:05] Speaker 01:
So really, both the requests under A and under B are both proceeding at the board or at the director level.

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correct, he could win on one or both of those.

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That's correct.

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And my understanding is that under the PTSD, in which case the effective, it's remanded to the board to see whether he gets an earlier effective date.

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So if he gets an effective date of 2014, he could meet that percentage threshold.

[00:18:27] Speaker 01:
The effective date of 60% or greater.

[00:18:30] Speaker 01:
Precisely.

[00:18:31] Speaker 01:
Not the earlier date.

[00:18:32] Speaker 01:
OK.

[00:18:32] Speaker 01:
Thank you.

[00:18:32] Speaker 01:
Yeah.

[00:18:33] Speaker 02:
And the board is current.

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I don't see that as raising a ripeness issue.

[00:18:37] Speaker 02:
It may raise a finality issue.

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a claim can be right even if you have alternative theories presented elsewhere.

[00:18:46] Speaker 00:
I think it can be considered under the finality issues.

[00:18:50] Speaker 00:
Well, we framed it as a rightness issue, but finality is certainly another way to get at that underlying situation.

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So when evaluating the fit, so for rightness, what's relevant is the fitness of the issues for determination.

[00:19:06] Speaker 00:
And the first issue to consider is whether or not

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lacking in ripeness just because you've got some alternative theory that will lead you to the same result.

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That's just not an issue of ripeness.

[00:19:19] Speaker 02:
It's an issue of finality, but it's not an issue of ripeness.

[00:19:22] Speaker 00:
So in our brief, we argued for ripeness as a matter of prudence and judicial economy as to why it's improper.

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We don't have the authority to refuse to adjudicate a case that's properly before us just because we think prudentially

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that would be better to wait.

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So I think one can reach the decision of finality just on that basis.

[00:19:47] Speaker 00:
We made additional arguments under the banner of rightness, but certainly one can say this is not final and therefore we don't have jurisdiction.

[00:19:55] Speaker 00:
I think under Elkins v. Gober, one of the cases we cite, it stands for the proposition that if a claim is inextricably intertwined with something that's been remanded, there's no jurisdiction.

[00:20:07] Speaker 00:
I think arguably the PTSD is inextricably intertwined with TDIU because his PTSD is presumably a basis for his unemployability and could meet the scheduler threshold under 4.16a that would enable the board to then look at the employability inquiry.

[00:20:28] Speaker 00:
So I think that's another basis to get at this result that we have all these streams in terms of deciding the ultimate inquiry, which is TDIU, whether or not the veteran was employable in 2014 and 2015.

[00:20:42] Speaker 00:
And there's still fact-finding.

[00:20:44] Speaker 00:
There's still a lot of streams below.

[00:20:46] Speaker 00:
And this court cannot reach that issue at this time.

[00:20:50] Speaker 01:
Could you address your concession in the footnote at page eight that Mr. Carpenter directed us to?

[00:20:56] Speaker 01:
What are you conceiving and does it have an impact on how we resolve this appeal?

[00:21:01] Speaker 00:
I disagree with Mr. Carpenter's characterization of the nature of that concession on page eight.

[00:21:06] Speaker 00:
Essentially, what we're saying is, so in the Veterans Court decision, they find no error in terms of the effective date finding based off of the facts before them.

[00:21:16] Speaker 00:
They determine that it was not raised, this common etiology argument, which in the briefing appears to be a new argument that was not before the board.

[00:21:26] Speaker 00:
And so they decided on that basis.

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And then as an alternative argument, they said, even if it had been raised under just the operation of 4.16, he would not meet the threshold.

[00:21:38] Speaker 00:
And we are not defending that alternative basis at this point in time.

[00:21:41] Speaker 00:
But just on the basis of failure to raise, we think the Veterans Court decision stands on its own.

[00:21:46] Speaker 00:
And the court need not deal with that alternative basis

[00:21:52] Speaker 01:
for rejecting the earlier... The alternative basis that you're not defending that beginning in March 2015 he had a 50% PTSD rating and a 10% tinnitus rating.

[00:22:05] Speaker 01:
So if he's right about common etiology and that we would add those together as a single disability, then he would be eligible for TDIU as of March 2015.

[00:22:16] Speaker 01:
That's the part that the Veterans Court didn't buy that.

[00:22:20] Speaker 01:
But you're saying the Veterans Court was wrong on that.

[00:22:22] Speaker 01:
Do I understand correctly?

[00:22:24] Speaker 00:
That's correct.

[00:22:24] Speaker 00:
Because if they're combined together and they are, in fact, one disability, it would be 60%.

[00:22:28] Speaker 00:
And so we are not defending that part.

[00:22:30] Speaker 01:
And if we agree with you that the Veterans Court got that part wrong, does that impact what our disposition of this appeal should be?

[00:22:37] Speaker 00:
It would not, because so the jurisdictional issues here are one, whether or not this interpretation of common etiology in this court is jurisdiction.

[00:22:47] Speaker 00:
And clearly, the Veterans Court never reached that issue.

[00:22:49] Speaker 00:
They explicitly said, we're not reaching it.

[00:22:51] Speaker 00:
We're not interpreting that.

[00:22:51] Speaker 00:
So a flawed interpretation is the basis for jurisdiction.

[00:22:56] Speaker 00:
That's not a way for Mr. Dushner to find jurisdiction in this court.

[00:23:02] Speaker 00:
To the extent it relies on the record raising this common ideology argument, the board didn't find that.

[00:23:08] Speaker 00:
The Veterans Court didn't find that.

[00:23:10] Speaker 00:
It explained its reasoning.

[00:23:11] Speaker 00:
It mentioned that there was a discussion of one disability in the briefs below.

[00:23:15] Speaker 00:
There was a failure to respond, and they reviewed the record.

[00:23:19] Speaker 00:
And so to the extent that the factual record shows entitlement or raise that is something this court is without jurisdiction.

[00:23:25] Speaker 00:
The only potential avenue, which it's unclear whether or not Mr. Deshner makes this argument in his brief, but charitably construing it, one could potentially see if there was an error of law for failure

[00:23:37] Speaker 00:
to interpret.

[00:23:40] Speaker 00:
However, the basis was the waiver argument.

[00:23:44] Speaker 00:
And the Veterans Court gave its reasons that explained why he didn't raise it.

[00:23:48] Speaker 00:
And effectively, Mr. Deshner is arguing because he generally, amorphously sought to hire TDIU.

[00:23:59] Speaker 00:
Therefore, that encompasses this common etiology argument, which it's not an error of law to find that.

[00:24:05] Speaker 00:
But the court only need to address that if it rejects the rightness, finality, and jurisdictional arguments.

[00:24:12] Speaker 02:
So the reason that your concession doesn't end the relevance of this appeal is that it's only for part of the period, right?

[00:24:24] Speaker 00:
So the percentages would affect the 2015 time period.

[00:24:30] Speaker 00:
So if the veterans were earlier.

[00:24:33] Speaker 00:
So Mr. Gesture is seeking from 2014 to 2016.

[00:24:36] Speaker 00:
So the Veterans Court's logic applies with respect to the first year.

[00:24:40] Speaker 00:
For the second year, we are not defending that.

[00:24:42] Speaker 00:
But the court need not address that issue because the Veterans Court decision ultimately rested on a waiver argument, the failure to raise.

[00:24:51] Speaker 01:
Mr. Carpenter says there was error by the board in essentially subdividing Mr. Deshner's claim.

[00:24:59] Speaker 00:
Can you respond to that argument?

[00:25:02] Speaker 00:
I don't quite understand the division.

[00:25:09] Speaker 00:
Basically, 4.16a and b are two paths to the same ultimate benefit of unemployability.

[00:25:18] Speaker 00:
they remanded for be for uh... extra-scheduler uh... compensation and then they held that under a uh... he was uh... he did not have this effectively and ptsd which there are other reasons to get an effective date for ptsd besides just tdiu but tdiu could potentially be a product

[00:25:35] Speaker 00:
getting that of that extra schedule a date and of that apologies that earlier effective date and that's another path for him to Arrive at a determination of employability But this is all pending below and I do not believe it was an error for there to be a remand with respect to extra scheduler and a remand with respect to PTSD, which is what happened and

[00:26:01] Speaker 00:
uh... so because this appeal is not right not final this court should dismiss the appeal

[00:26:11] Speaker 00:
And then to the extent the court needs to reach jurisdictional issues, it should also dismiss the appeal because no interpretation was made.

[00:26:21] Speaker 00:
Mr. Deschner seems to be arguing, imploring this court to make an advisory opinion as to this definition of common ideology.

[00:26:29] Speaker 00:
But that is improper.

[00:26:30] Speaker 00:
The Veterans Court never opined or explicitly did not offer an interpretation.

[00:26:35] Speaker 00:
And so I believe it would not be proper for this court.

[00:26:38] Speaker 00:
I'm happy to answer any other questions with my remaining time.

[00:26:40] Speaker 02:
Okay, thank you.

[00:26:42] Speaker 02:
Mr. Carr, from your team.

[00:26:46] Speaker 03:
If I could direct the court's attention to the basis for the decision by the, excuse me, by the board.

[00:26:54] Speaker 03:
The board said prior to June 14, 2018, Appendix 64 in the board's decision, I'm sorry, Your Honor.

[00:27:03] Speaker 03:
And in Appendix 64, the basis for the remand for TDIU prior to June 14, 2016 was that prior to that date, the veteran did not meet the scheduler requirements.

[00:27:15] Speaker 03:
And then it goes on to say that the Board does not have jurisdiction to grant TDIU in the first instance.

[00:27:21] Speaker 03:
That is a misstatement of law, and that was the basis for the Board's decision.

[00:27:27] Speaker 03:
The basis for the Veterans Court's decision is found in Appendix 7.

[00:27:32] Speaker 03:
They affirmed the decision on the premise that upon fact finding that Mr. Deschner had three disabilities requiring a 70% rating.

[00:27:46] Speaker 03:
That is simply a misinterpretation of 4.16 that has been conceded by the government to be a misinterpretation.

[00:27:56] Speaker 03:
There is no necessity to have the third disability

[00:28:00] Speaker 03:
the non-compensable bilateral hearing laws considered when combining PTSD and tinnitus for a single disability rated at 60%.

[00:28:10] Speaker 03:
That was the error of law made by the board.

[00:28:13] Speaker 03:
That was the error of law made by the Veterans Court.

[00:28:16] Speaker 03:
And this court has the power and the authority to correct that error of law.

[00:28:20] Speaker 03:
Thank you very much.

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

[00:28:22] Speaker 02:
Thank you.

[00:28:23] Speaker 02:
The case is submitted.

[00:28:24] Speaker 02:
Thank you, counsel.