[00:00:00] Speaker 04:
The next case for argument is 22-1311, Fritz v. McDonough.

[00:00:06] Speaker 04:
Good morning, Mr. Carpenter.

[00:00:08] Speaker 01:
Good morning, Your Honor.

[00:00:10] Speaker 01:
May it please the Court, Ken Carpenter, appearing on behalf of Mr. James Fritz.

[00:00:15] Speaker 01:
At issue in this case is the lower court's decision that Mr. Fritz, in his argument to the Veterans Court, presented a new theory of Q.

[00:00:26] Speaker 01:
That did not happen.

[00:00:28] Speaker 01:
Mr. Fritz simply made a vermin to specific vermin of error about how the board applied the same regulation that was the basis for the single theory of Q.

[00:00:42] Speaker 03:
which was that the original decision failed to correctly apply 3.303 B. Can we review a Veterans Court determination of whether a new Q claim has been presented to the Veterans Court on appeal to the Veterans Court?

[00:00:58] Speaker 01:
Well, I believe this court did that in Andre.

[00:01:01] Speaker 01:
to establish the rule that was made by the Veterans Court that you could not present one.

[00:01:08] Speaker 03:
So we can evaluate looking at the theory that was originally presented when the Q claim was filed to the VA and then read the

[00:01:19] Speaker 03:
your Veterans Court brief and then try to slice and dice and figure out for ourselves, I don't know, perhaps in a de novo way whether or not the Veterans Court correctly concluded that there was something in your brief to the Veterans Court that was new and different from what was presented in the original Q claim?

[00:01:39] Speaker 01:
I think the distinction here is that the decision in Andre was based upon the presentation of a clearly separate

[00:01:49] Speaker 01:
theory of Q that was not presented to the agency.

[00:01:54] Speaker 01:
The theory of Q in this case was presented to the agency, was reviewed by the board, and that is finite.

[00:02:05] Speaker 01:
That is within the single theory presented.

[00:02:10] Speaker 01:
The question here for this court's review is whether or not the Veterans Court properly determined that arguments that were made

[00:02:19] Speaker 01:
About the error made by the board could as a matter of law Constitute a different theory of Q. So I think the distinction is is this court would not be reviewing the original Q Allegation but be reviewing what the board did versus what in terms of their application of me what the Veterans Court did

[00:02:43] Speaker 01:
what the Veterans Court did in reviewing what the board did in terms of its application of the regulation at issue.

[00:02:52] Speaker 01:
And the allegation made before the Veterans Court was focused exclusively on- I'm trying to remember.

[00:02:58] Speaker 03:
I thought your lead argument was the Veterans Court did not apply the rule from Andre in terms of determining whether or not a new Q claim had been impermissibly presented to the Veterans Court.

[00:03:12] Speaker 01:
what we believe that they incorrectly use the rule in Andre because the rule in Andre refers to the presentation of a separate theory of Q. There is no separate theory of Q

[00:03:26] Speaker 01:
being presented to the Veterans Court for the Veterans Court to rule on.

[00:03:30] Speaker 01:
The Veterans Court here was only asked to rule on whether or not the board did or did not correctly apply the same regulation that was the basis for the allegation.

[00:03:41] Speaker 03:
I guess my concern is that bottom just boils down to a requirement.

[00:03:47] Speaker 03:
You're asking us to

[00:03:49] Speaker 03:
necessarily do some kind of assessment on what the scope of the original Q claim was to figure out whether what was argued in your Veterans Court brief falls within the scope of that original Q claim.

[00:04:04] Speaker 03:
And that starting to sound like application of law to fact.

[00:04:08] Speaker 01:
And if this court understood my briefing to ask that, that is my fault for not making it clear.

[00:04:18] Speaker 01:
What we were trying to present, what I believe we presented, was that it was error for the Veterans Court to determine that a vermin of error based upon the board's failure to correctly apply 3.303b constituted, or could at law constitute, a new theory of Q. This has nothing to do- I'm not following what you're saying here.

[00:04:46] Speaker 01:
So just- OK.

[00:04:48] Speaker 04:
What you're saying, your real theory is that the board, the CAVC, for us to review what the CAVC did.

[00:04:56] Speaker 01:
The Veterans Court in this case looked at the arguments presented by Mr. Fritz to them as being a new theory of cue because of the arguments that were made

[00:05:09] Speaker 01:
in the vermin of error by the board in its application of 3.303.

[00:05:16] Speaker 04:
So how is that not what Judge Chen was concerned about in terms of our standard of review and reviewing the application of the law of that?

[00:05:26] Speaker 01:
because it isn't a question of the application of law to the Q claim.

[00:05:32] Speaker 01:
That is the important distinction here.

[00:05:34] Speaker 01:
The Q claim, excuse me, the theory of Q, not the Q claim, the theory of Q presented

[00:05:42] Speaker 01:
to the agency as the basis for reversal or revision was based upon the single theory of the VA's failure in its original decision to correctly apply to deny the veteran the benefit of the regulatory presumption of service connection.

[00:06:00] Speaker 04:
If we had to reach the merits of this case, would we not be deciding whether the CAVC was correct in saying that the arguments made by the board

[00:06:11] Speaker 04:
that there was a new argument made to the CABC that had not been made to the board.

[00:06:16] Speaker 04:
Would we not have to resolve that question?

[00:06:20] Speaker 01:
No, Your Honor, because there was no... Let me pry it this way.

[00:06:28] Speaker 01:
Any appellant seeking judicial review of a board decision

[00:06:32] Speaker 01:
is entitled to judicial review based upon a vermin of error made by the board in its application of the applicable law.

[00:06:43] Speaker 01:
That applicable law in this case happens to be the same regulation.

[00:06:47] Speaker 01:
What the Veterans Court did was to deny Mr. Fritz judicial review by saying that those were a new theory of cue.

[00:06:57] Speaker 04:
So in order to decide this case and that the CABC was an error, we would have to decide the question about whether they were right or wrong in construing what was appealed to them as being new or different from what was said to the board.

[00:07:12] Speaker 01:
No.

[00:07:13] Speaker 01:
I'm sorry, Your Honor.

[00:07:14] Speaker 01:
Well, clearly, I apologize for not making myself clear.

[00:07:20] Speaker 04:
Do they not have to decide that?

[00:07:21] Speaker 04:
I mean, do we not have to say anything about whether this was new and different than what was before the board?

[00:07:26] Speaker 01:
No, Your Honor.

[00:07:27] Speaker 04:
OK, so what do we have to just?

[00:07:29] Speaker 01:
You have to decide whether or not Mr. Fritz had the right to present the legal arguments that he presented to the Veterans Court based upon error by the board.

[00:07:41] Speaker 01:
The error by the board alleged was that the board failed to correctly apply these regulations, and that this specific regulation, 3.303b, is a regulatory presumption that includes specific elements

[00:07:58] Speaker 01:
that are necessary to trigger that presumption.

[00:08:01] Speaker 01:
And those were the elements that we allege the board did not correctly apply in doing its analysis of whether there was cue by the original VA decision.

[00:08:13] Speaker 02:
Is the Q, are you maintaining that you can present a new Q theory to the Veterans Court that you did not apply to the board?

[00:08:21] Speaker 01:
Absolutely not, Your Honor.

[00:08:22] Speaker 02:
And are you contending that we get to decide whether or not there was a new Q theory presented to the Veterans Court?

[00:08:30] Speaker 01:
The latter part of your question, the answer is yes.

[00:08:35] Speaker 01:
I do believe that this court has the authority to determine whether or not the Veterans Court made an error of law by characterizing the averments of error made to the board about the board's review.

[00:08:53] Speaker 01:
as a new theory of Q. They were not a new theory.

[00:08:57] Speaker 01:
We weren't asking the Veterans Court to decide under that.

[00:09:01] Speaker 02:
Can you help me on the theories then?

[00:09:03] Speaker 02:
There's this specific about whether your client was prescribed certain medicine, I think, ulcer medicine, right?

[00:09:11] Speaker 01:
Yes, whether or not the prescription of medicines that were for ulcers.

[00:09:15] Speaker 02:
And was that part of the theory of Q at the board level?

[00:09:20] Speaker 01:
The theory of Q presented to the board was the same theory of Q presented to the agency in the original instance, that Mr. Fritz was entitled to the benefit of the regulatory presumption that his symptoms based upon the medications that he was receiving for an ulcer qualified

[00:09:41] Speaker 01:
under the regulation as noted as such during service.

[00:09:45] Speaker 02:
So the medication is part of the Q theory presented to the agency and to the board?

[00:09:50] Speaker 02:
Correct.

[00:09:50] Speaker 02:
And then at the Veterans Court is the medication part of the Q theory that's presented for review at the Veterans Court?

[00:09:57] Speaker 01:
No, we are not asking the Veterans Court.

[00:09:59] Speaker 01:
The Veterans Court case law is clear.

[00:10:02] Speaker 01:
They do not do a plenary review of the allegations of Q.

[00:10:06] Speaker 01:
they only look at the decision of the board.

[00:10:10] Speaker 01:
And the decision of the board to deny Q was not based upon a Q theory, but based upon a misapplication of the very regulation that was the basis for the allegation of Q. Let me take a crack at this.

[00:10:27] Speaker 03:
As I understand what the Q claim was when it was filed, it was

[00:10:34] Speaker 03:
The RO originally in 1974 didn't fairly appropriately look at

[00:10:42] Speaker 03:
all of Mr. Fritz's medical records that were during service that showed he was having all kinds of stomach problems, and he got medication for it.

[00:10:54] Speaker 03:
And so under 3.303B, he should be recognized as having had an ulcer at that time, a serious chronic ulcer.

[00:11:10] Speaker 03:
And then at the Veterans Court level, it looked like there was a moment in the Veterans Court brief where you spotlighted something and said, hey, I want you to resolve a question of law.

[00:11:27] Speaker 03:
And the question of law is this.

[00:11:30] Speaker 03:
Is the prescription of ulcer medicine during service automatically meet the

[00:11:39] Speaker 03:
you know, a chronic disease requirement as such in 3.303B.

[00:11:45] Speaker 03:
Correct.

[00:11:47] Speaker 03:
And I think the Veterans Court reacted to that by saying,

[00:11:52] Speaker 03:
I don't recall you ever in your original Q claim ever saying just that, just narrowly looking at the medicine prescribed and saying the prescription of this medicine automatically as a matter of law meets the definition of having a chronic disease under 3.303b.

[00:12:11] Speaker 03:
That's not something that the VA ever evaluated because they never saw it.

[00:12:15] Speaker 03:
So I'm not going to do it in the first instance.

[00:12:17] Speaker 03:
I'll take a look at what actually was argued, which was all of this medical evidence taking it into account in view and including countervailing evidence that suggests that he in fact didn't have a chronic ulcer at that time.

[00:12:31] Speaker 03:
And in the end, I'm not going to find any.

[00:12:34] Speaker 03:
error by the board in that instance.

[00:12:38] Speaker 03:
If I'm understanding the record and the history of this case together, I guess you're asking us to say when you and your Veterans Court brief

[00:12:49] Speaker 03:
spotlight this moment saying, I want you to resolve this question of law.

[00:12:52] Speaker 03:
Can the description of medicine automatically per se qualify as entitling this person to be deemed as having a chronic disease?

[00:13:01] Speaker 03:
That's not exactly what you said in your original Q plan.

[00:13:06] Speaker 01:
But the problem with that, Your Honor, is that the case law below at the Veterans Court in the Archer case says that they will not do that very thing, that they will not review the allegations made as to whether or not there was or wasn't Q.

[00:13:22] Speaker 01:
All they will look at is whether or not the board's decision was made in accordance with law.

[00:13:29] Speaker 01:
They're only reviewing what the board did.

[00:13:32] Speaker 01:
And that's the question of law we're presenting to this court.

[00:13:35] Speaker 01:
Did they violate their own precedent in Archer by doing precisely what you described, by going beyond the averment of error and looking to the underlying allegations of cue?

[00:13:47] Speaker 01:
that they've told us they won't do that.

[00:13:51] Speaker 01:
So I can't ask them to do that.

[00:13:53] Speaker 01:
And if I can't ask them to do that, then I have to rely solely on the averment of error made in the processing of that review by the board.

[00:14:05] Speaker 04:
If the CABC is right or affirmed or whatever, are you restrained from

[00:14:13] Speaker 04:
walking over tomorrow and filing a new Q&A claim based on this question of law of the medication by itself.

[00:14:24] Speaker 01:
I do not believe I am constrained.

[00:14:26] Speaker 01:
What I am concerned that I will face is a decision by the agency that this issue has already been decided by the agency.

[00:14:35] Speaker 04:
Well, we'll talk to the agency.

[00:14:38] Speaker 01:
Thank you.

[00:14:39] Speaker 01:
Thank you very much.

[00:14:41] Speaker 00:
Good morning, Your Honor.

[00:14:42] Speaker 00:
May it please the court?

[00:14:43] Speaker 00:
The court should dismiss this appeal for lack of jurisdiction because the court does not have jurisdiction to reassess the scope of cue claims that are submitted to the board and to the Veterans Court.

[00:14:54] Speaker 00:
The Veterans Court here looked at the cue claim that was submitted to it, made a factual determination that that was different than the cue claim that was submitted to the board, just like what happened in Andre.

[00:15:05] Speaker 00:
and therefore said that it didn't have jurisdiction to, or didn't have authority to review the new Q claim.

[00:15:13] Speaker 03:
Go ahead.

[00:15:14] Speaker 04:
Just on the last point I raised with Mr. Carpenter, is he therefore exhausted out of filing a new QK because on this medication, if the CABC has concluded that that really wasn't the issue that was presented before the board, is there anything that would constrain him

[00:15:34] Speaker 04:
tomorrow filing a new Q claim based exclusively.

[00:15:39] Speaker 04:
I know it depends on what words, but in general, if that were to happen, would he be precluded from doing that?

[00:15:45] Speaker 00:
No, Your Honor.

[00:15:46] Speaker 00:
He can raise a Q claim at any time, and we cited that in our brief.

[00:15:50] Speaker 04:
And just educate me on veterans court law that the remedy that he could obtain in the Q claim universe

[00:16:01] Speaker 04:
goes back to the original one, irrespective of when he files the claim.

[00:16:06] Speaker 04:
In other words, he won't be prejudiced in terms of the time if he were to recover what he could get out of a claim filed tomorrow as opposed to the one filed five years ago.

[00:16:16] Speaker 00:
That's correct, Your Honor.

[00:16:17] Speaker 00:
If Hugh is found, it goes back to the original file date, which would be 1974 here.

[00:16:21] Speaker 00:
This is not a subsequent appeal where he's reopening the record and the effective date would be the date of the new claim.

[00:16:29] Speaker 00:
I interrupted you, Jen.

[00:16:30] Speaker 03:
Yeah.

[00:16:32] Speaker 03:
I know the law says, or the case law says, every specific different Q claim is its own Q claim.

[00:16:42] Speaker 03:
But that doesn't answer the question of how do you figure out whether one Q claim is different from another Q claim.

[00:16:48] Speaker 03:
And that seems to be the heart of the debate here, at least the one that Mr. Carpenter wants to present to us.

[00:16:55] Speaker 03:
Even though I know your position is we can't get into that here, we're not permitted to, because that's application of law and facts, could you use the facts of this very case to illustrate how and why it's correct to think about

[00:17:12] Speaker 03:
what was presented in the Veterans Court brief here as being a different cue claim from the one that was originally presented.

[00:17:18] Speaker 03:
So I can understand what makes one cue claim different from another cue claim.

[00:17:23] Speaker 03:
Because one could imagine that what was argued in the Veterans Court brief here as being somehow subsumed in what was presented in the original cue claim.

[00:17:33] Speaker 03:
After all, the original cue claim did, in fact, talk about the medication that he was prescribed while he was in service for all of his stomach problems.

[00:17:41] Speaker 00:
And sure, Your Honor, I think it's important to note what you said is that each Q claim has to be pled with specificity.

[00:17:49] Speaker 00:
You can't make one generalized Q claim that assumes smaller argument.

[00:17:54] Speaker 03:
It gets a little scary if one fact pattern can actually get

[00:17:58] Speaker 03:
carved up into 80 different cue claims.

[00:18:00] Speaker 03:
I mean, there's a certain point where you're slicing the baloney too thin.

[00:18:04] Speaker 00:
Sure, Your Honor, but this isn't like a claim where a party can make a claim, and then during the course of litigation, you can make new arguments, right?

[00:18:14] Speaker 00:
A cue claim has to be very specific.

[00:18:16] Speaker 00:
You have to identify with particularity and specificity, as stated in Andre, the specific, clear, and unmistakable error.

[00:18:25] Speaker 04:
So what are you saying was raised before the board?

[00:18:27] Speaker 04:
I mean, it was his medical records.

[00:18:29] Speaker 04:
There was a reference to the medication.

[00:18:31] Speaker 04:
He may have identified three things in the medical records, but one of those three things was the medication.

[00:18:38] Speaker 04:
So if the board had decided to treat the medication and just treat them individually, that would have been fine, right?

[00:18:45] Speaker 04:
There was enough specificity to include it was not the only thing he raised, but it was among the things that he raised.

[00:18:53] Speaker 04:
Isn't that specific enough?

[00:18:55] Speaker 00:
No, Your Honor.

[00:18:56] Speaker 00:
I think what he raised at the board was that there was a failure to consider 3.303b.

[00:19:02] Speaker 00:
It was very general.

[00:19:06] Speaker 00:
I would point, Your Honor, to Appendix 44.

[00:19:08] Speaker 00:
That's where he said his claim to the board is a failure to consider and apply 3.303b.

[00:19:14] Speaker 00:
So that's a very broad statement or assertion of Q. You can't later then go to the Veterans Court, make a specific argument under the general umbrella of 3.303b and say, well, I made this generic assertion of 3.303b and you didn't consider the specific argument.

[00:19:35] Speaker 00:
It's the reverse in the Q world.

[00:19:37] Speaker 00:
In the Q world, you have to make a specific particularized assertion of an error

[00:19:44] Speaker 00:
And only that.

[00:19:45] Speaker 04:
But in the record, didn't he before the board, as part of his argument, say that the records were based on a chronic condition, ulcers, the motions?

[00:19:56] Speaker 04:
Didn't he have a motion that did note that Mr. Fritz was prescribed Jelucil?

[00:20:02] Speaker 04:
in 1966 and was prescribed whatever else in November 1966.

[00:20:07] Speaker 04:
Can you call that out before the board?

[00:20:09] Speaker 00:
I believe those facts were in the record, but as it relates to his Q claim, which again, appendix 44, he doesn't call out the medication like he does at the Veterans Court.

[00:20:19] Speaker 02:
All of this was the basis for the requirement that he had to be that specific Is that the Andre decision or is that something we've said?

[00:20:27] Speaker 00:
That's the Andre decision which is what this court has said and there's a whole section in the Andre decision explaining the specificity requirements and how really it benefits the veteran to be so specific because we're in a case like here where if this court were to sustain a

[00:20:43] Speaker 00:
the Veterans Court or dismiss this case for lack of jurisdiction, the veteran here can go back and assert a new Q claim.

[00:20:52] Speaker 00:
If we're in a world where a veteran can assert these really broad Q claims and a court rejects it once, then they wouldn't be able to go back and reassert Q. And so it's for the benefit of the veteran also that they have to plead with the specificity.

[00:21:08] Speaker 00:
Here, Your Honors, all of this that we've been talking about is this Court reviewing the two scopes of the claims, which, back to our original point, is outside the scope of this Court's jurisdiction.

[00:21:20] Speaker 00:
This is an application of law to fact, or perhaps just a factual determination, the scopes of the claims.

[00:21:27] Speaker 00:
So I don't think this Court even needs to compare the Board Q claim with the Veterans Court Q claim, because it's not a question of law.

[00:21:36] Speaker 00:
There's no case that says that.

[00:21:37] Speaker 00:
The appellant has cited no case that says that.

[00:21:40] Speaker 04:
Although Mr. Carpenter, I think if I heard him correctly, his first answer to that was true.

[00:21:44] Speaker 04:
That's what we did in Andre.

[00:21:46] Speaker 04:
So how come we could do it in Andre and not in this case?

[00:21:49] Speaker 00:
Well, in Andre, the court was deciding, as it said, for the first time, whether the Veterans Court could consider a new Q claim asserted for the first time at the Veterans Court.

[00:21:59] Speaker 00:
That was a question of law, the scope of the Veterans Court's authority and jurisdiction to consider a newly raised Q claim.

[00:22:06] Speaker 00:
Now that's settled.

[00:22:08] Speaker 00:
We know that the Veterans Court can't consider for the first time a new Q claim on appeal.

[00:22:13] Speaker 00:
And that's the exact situation that we're at here.

[00:22:16] Speaker 00:
We have a Q claim to the board and then we have a Q claim to the Veterans Court.

[00:22:20] Speaker 00:
The Veterans Court decided they were different.

[00:22:22] Speaker 00:
The veteran here won't be prejudiced.

[00:22:24] Speaker 00:
He can go back and assert this more particularized Q claim to the VA after this appeal.

[00:22:31] Speaker 00:
I'm going to the second.

[00:22:33] Speaker 03:
But that's something we can't review, is what you're saying.

[00:22:35] Speaker 00:
Correct.

[00:22:35] Speaker 03:
The veteran's court's determination that this was a new key phone.

[00:22:38] Speaker 00:
That's correct, Your Honor.

[00:22:40] Speaker 00:
There's no legal hook.

[00:22:40] Speaker 03:
There's no scenario where we can ever look at that?

[00:22:45] Speaker 00:
If the appellant could articulate a legal hook, a legal question, I guess perhaps I can't think of one, it's a factual determination.

[00:22:53] Speaker 00:
And it's the Veterans Court looking at one piece of paper, the Q claim, and comparing it to another.

[00:23:00] Speaker 00:
It's not a question of law that's within this court's jurisdiction.

[00:23:03] Speaker 00:
I think this court made that very clear in Andre.

[00:23:05] Speaker 03:
Did I get the procedural history of this case accurately told when I said that his original Q claim seems to be a more fact-based argument, that everything in his medical records

[00:23:22] Speaker 03:
tells a compelling story that he qualifies as having shown a chronic disease back during service under 3.303, whereas in the Veterans Court brief, he made illegal argument about what

[00:23:38] Speaker 03:
prescription of certain kinds of medicine should automatically qualify as a chronic disease under 3.3.

[00:23:46] Speaker 00:
I think that's an accurate characterization your honor and both the board and the Veterans Court noted that what this pellet seems to be doing is arguing for a reweighing of the evidence and that's not the purpose of the Q vehicle the purpose of the Q vehicles to identify the specific particularized error so to the extent that we're getting into

[00:24:05] Speaker 00:
weighing of what evidence he submitted back in 1974 or before.

[00:24:10] Speaker 00:
But that's a weighing of the evidence that's also outside of this court's jurisdiction.

[00:24:14] Speaker 00:
And the Veterans Court noted that it wasn't going to review that either.

[00:24:19] Speaker 00:
So for those reasons in general, we ask that the court dismiss this jurisdiction for a lack of, excuse me, dismiss this appeal for a lack of jurisdiction.

[00:24:26] Speaker 00:
Thank you.

[00:24:28] Speaker 04:
Thank you.

[00:24:31] Speaker 04:
Will we still have four minutes at the end?

[00:24:34] Speaker 01:
Thank you.

[00:24:36] Speaker 01:
I'd like to start first with the question of the specificity requirement.

[00:24:41] Speaker 01:
The specificity requirement does not come from Andre.

[00:24:45] Speaker 01:
The specificity requirement comes from Fugo.

[00:24:47] Speaker 01:
Fugo is a Veterans Court decision that said that in order to make an allegation of Q,

[00:24:54] Speaker 01:
The veteran or claimant must specifically identify the law that was not correctly applied or the facts that were not correctly applied or were before the agency at the time of its original decision.

[00:25:10] Speaker 01:
It does not go into the description that was given to this court by the government as to the specificity requirement.

[00:25:19] Speaker 01:
That specificity requirement ends up precluding an ability of a veteran to make a specific allegation.

[00:25:28] Speaker 01:
Now let's move to Andre.

[00:25:30] Speaker 01:
I was counsel in Andre, and I made the error of law

[00:25:35] Speaker 01:
decided after the fact that I could not raise a different theory of Q, which I clearly did in Andre.

[00:25:44] Speaker 01:
I argued before the agency one theory of Q. I got to the board and said, no, there is a different theory of Q that I want you to correct.

[00:25:54] Speaker 01:
This court affirmed and said, you can't do that.

[00:25:58] Speaker 01:
You're stuck with the horse you bet on.

[00:26:02] Speaker 01:
In this case, we described

[00:26:05] Speaker 01:
a legal error for the failure to correctly apply 303B, and we describe the factual mistakes that were made in the original decision.

[00:26:14] Speaker 01:
So we combine the two things that are required for the specific pleading requirement under FUGO.

[00:26:22] Speaker 01:
Then when we get to the board, the government kept referring to the board making a cue claim.

[00:26:31] Speaker 01:
There is no Q claim to the board except under 7111 when the decision under review is a board decision.

[00:26:41] Speaker 01:
ROQ is a different animal.

[00:26:43] Speaker 01:
ROQ requires Q in a rating decision to be decided in the first instance by the agency of original jurisdiction, which is what happened here.

[00:26:54] Speaker 01:
We presented in 2015 an allegation of Q. That allegation was denied.

[00:27:00] Speaker 01:
We appealed it to the board for a de novo review of that allegation, that theory of Q on the failure to correctly apply 3.303b.

[00:27:11] Speaker 01:
When we get to the Veterans Court, we are constrained by Archer from asking the Veterans Court to review the underlying theory of Q.

[00:27:22] Speaker 01:
That simply puts us in a box that we can't get out of.

[00:27:27] Speaker 01:
And the Veterans Court erred as a matter of law by violating its own precedent in Archer and examining the underlying theory of Q and saying that that underlying theory of Q was not the averment of error made to the Veterans Court.

[00:27:46] Speaker 01:
We said that the Veterans Court made a legal error in how they apply 3.303B because they didn't consider this medical evidence in the context of the triggering event to give him the benefit of a service-connected award of service connection.

[00:28:08] Speaker 01:
So unless there are further questions by the panel, we'll submit them there.

[00:28:12] Speaker 04:
Thank you.