[00:00:01] Speaker 02: Hampton against McDonough, 22-1359. [00:00:04] Speaker 02: Mr. Raven, whenever you're ready. [00:00:11] Speaker 05: Good morning. [00:00:12] Speaker 05: May it please the court. [00:00:15] Speaker 05: Sean Raven for Selena Hampton. [00:00:17] Speaker 05: The Veterans Court held that under this court's holdings and broadened bond, the Board of Veterans Appeals may address evidence received within one year of a raid decision in order to find in the first instance [00:00:29] Speaker 05: that such evidence is neither new nor material as defined by 38 CFR 3.156b. [00:00:36] Speaker 05: This is a misinterpretation of 3.156b, and it's contrary to this court's holdings in bond, broad, and length. [00:00:47] Speaker 05: Based on this court's decisions, the board does not have jurisdiction in the first instance to find that evidence received within one-year marine decision is either new or material. [00:00:59] Speaker 05: The board's jurisdiction is limited to determining whether VA received evidence within one year of rating decision. [00:01:05] Speaker 05: If so, it must remand to the regional office to issue a rating decision in the first instance, and this is because of this court's holdings in Bonn-Barrard-Wang, and also because under 38 USC 7104A, a veteran is entitled to one right to appeal. [00:01:24] Speaker 04: uh... but i'm sorry i'm not going to talk about it whether something is new material is that a clean yes when you have one of the right for that [00:01:35] Speaker 04: No, I get the general provision that they've got a right to appeal on claims, but why is whether a specific piece of evidence, new material, a claim? [00:01:48] Speaker 04: It's just additional evidence in support of a claim. [00:01:51] Speaker 05: But it's one right to review on appeal. [00:01:58] Speaker 05: So when you file new material evidence, [00:02:04] Speaker 05: It's not necessarily defined necessarily as a claim. [00:02:11] Speaker 05: It can't be a claim, right? [00:02:12] Speaker 04: It's evident in support of the existing claim. [00:02:15] Speaker 05: It's evident in support of the claim, but the board can't make that decision in the first instance because it denies the veteran the right to appeal. [00:02:21] Speaker 05: There's no waiting decision. [00:02:22] Speaker 05: So when you file a new material evidence, the court has held both in bond and broad that VA must determine. [00:02:28] Speaker 05: It's not the board that has to determine, it's VA. [00:02:31] Speaker 05: Because when VA issues a decision, it gives the veteran the right to file a notice of disagreement. [00:02:37] Speaker 02: The regulation, is it that uses the expression VA? [00:02:41] Speaker 02: Is that right? [00:02:42] Speaker 05: 3.156B. [00:02:45] Speaker 05: The regulation itself, I don't think it uses, doesn't say VA. [00:02:52] Speaker 05: It says, sorry. [00:02:55] Speaker 05: New material evidence received prior to the expiration of the appeal period prior to the appeal decision, if a temporary, if time has been filed, will be considered as having been filed in connection with the claim, which was pending at the beginning of the appeal period. [00:03:08] Speaker 02: So you don't find the language in that that identifies which of the two organs, the agency of original jurisdiction, the RO, [00:03:18] Speaker 02: or the board has to consider it, right? [00:03:21] Speaker 05: Right. [00:03:21] Speaker 05: I don't. [00:03:22] Speaker 05: But findings, in fact, can't be made in the first instance by the board. [00:03:28] Speaker 05: When the board sees that new evidence has been [00:03:31] Speaker 05: I believe there's even a veteran's case on point, if I can submit additional after the argument, that says that when the board identifies that VA has received evidence within one year of a decision, it has to remand to the regional office to make a finding in that first instance about whether that evidence is new and material. [00:03:53] Speaker 04: I mean, I would have thought if there was a case so directly on point, the Veterans Court would have applied it and we wouldn't be here. [00:04:00] Speaker 05: I think this is a novel issue. [00:04:02] Speaker 05: It might be an issue that the court has to interpret 3.156b4. [00:04:06] Speaker 05: I thought there was a case. [00:04:07] Speaker 05: It might be Evans. [00:04:08] Speaker 05: It might be Winters. [00:04:10] Speaker 05: But I'd have to find out what that was previously. [00:04:16] Speaker 02: But putting aside case law, is there a regulation or statute that says that, I thought you said something like, the board cannot make factual findings in the first instance? [00:04:29] Speaker 05: No, it can't make factual findings in the first instance because it has to. [00:04:33] Speaker 02: What regulation or statute? [00:04:35] Speaker 05: Well, I think it's 38 C 7104, the right to one review on appeal. [00:04:42] Speaker 05: But the board is reviewing tribunals. [00:04:45] Speaker 05: It reviews de novo. [00:04:47] Speaker 02: Right. [00:04:47] Speaker 02: But if, as I think suggested earlier, a claim at issue is the TDIU claim, then the board is reviewing that claim with a, let's call it an expanded evidentiary record. [00:05:05] Speaker 05: Right. [00:05:07] Speaker 05: It's my understanding that the board can't make these findings in the first instance. [00:05:11] Speaker 05: That's why it goes back to the regional office in both Barad and Bond. [00:05:15] Speaker 04: I'm just presupposing your argument when you say the board can't decide in the first sentence where something is new and material and that's not what 3.156 says. [00:05:26] Speaker 04: is not so broad as to say that the board can't make any kind of factual determination. [00:05:31] Speaker 04: Why isn't the correct rule? [00:05:32] Speaker 04: Because in these 3.156 cases, you already have a decision on the claim, right? [00:05:37] Speaker 04: That's the basis for it, that evidence that comes in can relate back to this claim if it's submitted within a year. [00:05:44] Speaker 04: So presumably these cases often are already on appeal to the board. [00:05:49] Speaker 04: No? [00:05:51] Speaker 04: I mean, let's just assume they are. [00:05:53] Speaker 04: Then why isn't it, if it's before the board, the board's obligation to look at this evidence and say, yes, it's new material, in which case it probably does have to go back. [00:06:01] Speaker 04: I think the government probably agrees with that. [00:06:03] Speaker 04: But if it's not new material, then there's no reason to remand it because it's not relevant to the pending claim. [00:06:10] Speaker 05: Well, the board can't, in this particular case, first of all, if you look at the facts, [00:06:14] Speaker 05: as I recall them. [00:06:16] Speaker 04: I don't want to get back into the facts of this case. [00:06:18] Speaker 04: You know we can't review facts. [00:06:19] Speaker 04: Why isn't that a correct statement of the law that I just made? [00:06:22] Speaker 05: If the board has jurisdiction over an appeal and there's no material evidence that had been submitted for it, [00:06:34] Speaker 05: In certain circumstances, I would think that the board may be able to look and determine whether or not that's new and material evidence. [00:06:43] Speaker 05: But that's not how it generally has happened, and that's not how I read the court's decisions in Bond and Barad. [00:06:48] Speaker 05: When you talk about VA, the regional office or the board, [00:06:53] Speaker 05: The VA is generally understood as the regional office in the context of most decisions. [00:06:58] Speaker 04: Well, I think there's some imposition in both the way the agencies use that decision and the way the court uses it and the way we use it sometimes. [00:07:06] Speaker 04: But I take your point. [00:07:08] Speaker 04: But again, you want to get into the facts. [00:07:12] Speaker 04: Didn't at some point the board and the Veterans Court find that this board decision that denied her claim for an increase on her migraines [00:07:20] Speaker 04: implicitly also denied an increase in TDIU, because it saw this evidence. [00:07:26] Speaker 04: And that's a determination of what that later board decision said. [00:07:31] Speaker 04: We can't review that, right? [00:07:33] Speaker 04: You can't review that. [00:07:35] Speaker 04: Right? [00:07:35] Speaker 04: So if the board is allowed to consider whether something is new and material when the case is pending before the board as a matter of law, [00:07:45] Speaker 04: then that's what happened here and you're done. [00:07:48] Speaker 04: You win only if 3.156 requires the RO in the instance of every single piece of evidence in an examination report, a visit to the doctor or something that occurred from the denial of the claim, [00:08:02] Speaker 04: where a year after, the RO has to issue a decision on every single one of those pieces of evidence and say, this is new material or not. [00:08:09] Speaker 05: Yes, exactly. [00:08:10] Speaker 05: It does. [00:08:10] Speaker 04: And where in 3.156 does it say that? [00:08:13] Speaker 05: I think it's Bond and Barad. [00:08:14] Speaker 05: I think that when VA receives new material, when VA receives evidence, it has to examine that evidence within that one year period to determine whether or not it's new material. [00:08:23] Speaker 04: Does Bond and Barad specifically say that the RO has to do it or that it has to be considered? [00:08:29] Speaker 05: noted that on the road but his language of the uh... however if you look at the arguments used by prior counsel we've all made the arguments about the regional office but let me ask you a different type that occur you know what if you know because he submitted this evidence [00:08:44] Speaker 04: to the RO in support of the increased migraine claim. [00:08:48] Speaker 04: And the RO denied it. [00:08:49] Speaker 04: Why couldn't we view that as the RO implicitly denying that this evidence was new and material for purposes of the still pending TDIU claim? [00:08:59] Speaker 05: Well, implicit denial has never been applied to new material evidence claims. [00:09:04] Speaker 05: And basically, I think if you have implicit denial applied to new material evidence claims, you basically abrogate this court's decisions in bond and barrage. [00:09:14] Speaker 05: you have to have a decision. [00:09:15] Speaker 04: I think that was... No, but I'm not saying that just because a decision was issued after evidence that could have been new material was submitted, the evidence implicit denial. [00:09:25] Speaker 04: But if you have a decision that specifically addresses the evidence that was submitted, the examination report, whatever, [00:09:33] Speaker 04: then, and does it for purposes of the scheduler rating and says, this doesn't warrant an increase. [00:09:38] Speaker 04: In those circumstances, it's not that you are assuming that they saw it and dismissed it without any recognition that it was submitted. [00:09:46] Speaker 04: Here, they saw it. [00:09:48] Speaker 04: They already saw this evidence and still refuse an increase in the scheduler rating. [00:09:54] Speaker 04: So why wouldn't we implicitly assume [00:09:56] Speaker 04: but they also found it not new material for purposes of the TDIU, because they saw the evidence. [00:10:02] Speaker 04: I grant you, if there's a case where they didn't mention the evidence at all, they'd be in trouble. [00:10:08] Speaker 04: But that's not this case, is it? [00:10:09] Speaker 05: Implicit denial is a doctrine that allows the regional office and the board to deny something without providing reasons or bases or a notice or due process of law to a veteran. [00:10:18] Speaker 05: If you say that implicit denial can be used to deny a new material evidence claim, [00:10:23] Speaker 05: then every case where a decision has been made on a subsequent case on the same issue implicitly denied that they didn't care about it. [00:10:31] Speaker 04: Not if they didn't specifically address the evidence. [00:10:34] Speaker 04: If they didn't specifically address the evidence, then they haven't shown that they've considered this evidence. [00:10:40] Speaker 04: But that's a key distinction, isn't it? [00:10:42] Speaker 05: I would disagree. [00:10:43] Speaker 05: I would respectfully disagree. [00:10:46] Speaker 05: Why? [00:10:47] Speaker 05: Because implicit denial, first off, [00:10:48] Speaker 05: I think implicit denial denies the due process of law, and it conflicts with bond and burial. [00:10:54] Speaker 04: There are implicit denial doctrines. [00:10:55] Speaker 04: So I know you all would like to get rid of them altogether, but they're out there. [00:10:59] Speaker 04: They can be applied. [00:11:01] Speaker 04: And the basis for them is that sometimes the board has considered stuff, and implicitly they must have rejected another theory in the ways they articulated the denial for the specific evidence they addressed. [00:11:13] Speaker 04: So why wouldn't that reach to the same question of new material? [00:11:18] Speaker 04: Let's not get into the dispute about whether they looked or not. [00:11:21] Speaker 04: I think there are some underlying disputes here, but I want to talk about the law. [00:11:24] Speaker 04: If they specifically looked at the pieces of evidence that could qualify as new and material, in the context of deciding her claim for an increased scheduler rating and said, this isn't good enough to get you a higher rating or get you any kind of higher rating, why couldn't you assume that they also looked at it for purposes of TDIU? [00:11:44] Speaker 05: I don't think you can, because even if there is a decision on a subsequent claim, that doesn't extinguish the secretary's obligations under 3.156b. [00:11:55] Speaker 05: So if a subsequent claim that's considered can't extinguish the requirements under 3.156b, then implicit denial also can't extinguish it. [00:12:06] Speaker 05: And that's the novel issue before the court. [00:12:08] Speaker 03: Mr. Raven, if you look at Pemex 300, [00:12:14] Speaker 03: which is the June 23rd, 1999 regional office rating decision that's at stake here. [00:12:24] Speaker 03: At the bottom it says AT&T IU not found. [00:12:29] Speaker 03: Yes. [00:12:29] Speaker 03: What does that mean? [00:12:31] Speaker 05: It's my understanding that this is going to be a code sheet to a rating decision. [00:12:34] Speaker 03: And then on this code sheet... A code sheet, I mean it doesn't suggest that somebody looked to see if IU was there when it says not found. [00:12:44] Speaker 05: That would indicate that as part of the code sheet, they've determined that individual unemployability was not found. [00:12:51] Speaker 05: But it doesn't necessarily. [00:12:52] Speaker 05: But again. [00:12:53] Speaker 03: So if they have looked at the two pieces of evidence that you claim they're supposed to look at to decide whether there's new material, right? [00:13:03] Speaker 05: Yes. [00:13:03] Speaker 03: And it's new. [00:13:05] Speaker 03: There's no question that the evidence, both the May 3 letter and the medical report, was new to the record. [00:13:14] Speaker 03: And it's material to the question of whether or not you're entitled to IU, TDIU, because if the ratings, if the percentage ratings got knocked up, you would be there. [00:13:26] Speaker 03: So I was just wondering, why isn't this showing that the RO here did exactly what you're telling them they're supposed to do? [00:13:33] Speaker 05: If you look on page 301, 302, 303, you see this is entire rating decision. [00:13:40] Speaker 05: I want to explain. [00:13:41] Speaker 05: as I know, and VA might have a different opinion, that if you see on page 301, it says the issues that are covered in this rating decision, one through four. [00:13:51] Speaker 05: Individual employability is not covered in one through four. [00:13:55] Speaker 03: If you look at decision... You see one through four, but my point is that they look at the evidence you're talking about, the VA examination of May 27, 1999, [00:14:06] Speaker 03: And they clearly looked at the letter because the letter is what asked for a service connection for hypertension. [00:14:12] Speaker 05: Sure, but looking at the evidence for one claim is not the same as looking for TDIU. [00:14:17] Speaker 05: And as I understand it on the code sheet, if you were to have a code, every coach, every rating decision has a code sheet. [00:14:24] Speaker 03: So that's just a spoiler claim. [00:14:25] Speaker 03: If you look at the basis for which you would have an IU claim, [00:14:30] Speaker 03: which would be that your ratings on your existing conditions have been hiked up to the right level, and they don't hike them up to the right level. [00:14:41] Speaker 05: Right? [00:14:42] Speaker 05: I'm sorry, I don't understand the question. [00:14:43] Speaker 03: Well, I mean, entitlement to IU, when they say not found, if they had in their rating decision agreed with you that you were entitled to a higher percentage for your migraines and your urinary, you might have got up to the numbers [00:15:00] Speaker 03: TDIU. [00:15:02] Speaker 03: Correct. [00:15:02] Speaker 03: And they wouldn't have said not found. [00:15:04] Speaker 05: But that's usually boilerplate on almost all rating decisions I've ever seen, is that even if you had increased rating for tinnitus, which is capped at 10%, they still would put IU not found because that's sort of like, it's on the template. [00:15:16] Speaker 03: Have you ever seen IU not found in a rating decision where the rating clearly entitled them to TDIU? [00:15:23] Speaker 05: Absolutely. [00:15:25] Speaker 05: Sure. [00:15:26] Speaker 05: But you would see the issue in the body of the rating decision where it says issue, evidence, and decision about what the issue is. [00:15:34] Speaker 05: But even so, again, the regulation of 3.156b requires that even if the... So I understand what you're coming from. [00:15:43] Speaker 03: Frankly, I had a lot of trouble understanding what your case is from your brief. [00:15:47] Speaker 03: But I gather you were saying that you want us to interpret 3.156b to say that [00:15:53] Speaker 03: Only the IRO, and under no circumstances can the board say that the evidence is not new material? [00:16:01] Speaker 05: In the first instance. [00:16:03] Speaker 05: That's correct, Your Honor. [00:16:04] Speaker 04: And you base that in the text of 3.156? [00:16:06] Speaker 05: And this court's decisions of what the court has said in broad and broad. [00:16:10] Speaker 04: But let's just assume those decisions don't decide this specific issue. [00:16:14] Speaker 05: I would say that. [00:16:17] Speaker 05: The whole scheme for VA, the whole framework, is that decisions are made by the regional office and you have the right to appeal them. [00:16:26] Speaker 05: If the board makes a decision in the first instance that wasn't made by the regional office, your only ability to appeal is to file an appeal to the veteran support. [00:16:35] Speaker 02: Can I ask you this question? [00:16:38] Speaker 02: Assume with me that if I look at the appendix 305, which is, I think, your May statement requesting further review by the RO. [00:16:53] Speaker 02: Right. [00:16:53] Speaker 02: And that doesn't mention TDIU as I read it. [00:16:56] Speaker 02: It mentions the various individual things. [00:17:00] Speaker 02: We're matching a list of four issues that's in the June 23, 1999 Paro decision, the migraines, the UTI, the GERD, and the hypertension. [00:17:16] Speaker 02: Is it possible [00:17:19] Speaker 02: I don't mean theoretically or abstractly, but given the appropriate standards that you could meet TDIU standards, even if everything found in this June 23rd as to the four individual claims is accepted. [00:17:40] Speaker 02: That is only the 30% disabling migraine, etc. [00:17:44] Speaker 02: Could you still get TDIU when nothing else is above 30% disabling or even at all? [00:17:52] Speaker 05: Yes, under 38 CFR 4.16b, you don't need to meet the schedule requirements [00:17:58] Speaker 05: of 4.16A, which are usually around 60 to 70%, to have a scheduler TDIU. [00:18:05] Speaker 05: You can get an extra scheduler TDIU under 4.16B, but you also would see that adjudicated in the rating decision issued by regional office. [00:18:15] Speaker 05: The rating decisions give notice to claimant about what the issues are and how to appeal them. [00:18:19] Speaker 05: Remember, these people are pro se. [00:18:22] Speaker 05: These are veterans. [00:18:23] Speaker 05: They're pro se. [00:18:25] Speaker 05: She was pro se at the time of this. [00:18:28] Speaker 05: Even if she had help from the American Legion or the VFW, these people don't have the benefit of counsel to help them to understand that the claim for increase is also a claim for increase for TDIU. [00:18:41] Speaker 05: So in a pro-claimant framework that's sympathetic to veterans, that's the whole purpose of 3.156b. [00:18:59] Speaker 01: Thank you, Your Honor. [00:19:00] Speaker 01: May it please the Court. [00:19:01] Speaker 01: The Court should dismiss Ms. [00:19:02] Speaker 01: Hampton's appeal or alternatively affirm the Veterans Court's judgment. [00:19:07] Speaker 01: The Court likes jurisdiction because the Veterans Court undertook no interpretation of Section 3.156b. [00:19:12] Speaker 01: It simply applied that section to the facts of the case. [00:19:17] Speaker 02: Just on the question of our jurisdiction, I mean, how could it not be the case that the Veterans Court decision relied [00:19:28] Speaker 02: necessarily, though perhaps implicitly, in a forcey kind of way, on a rejection of the proposition that the other side, the legal interpretation of 3.156b means what the other side says. [00:19:45] Speaker 01: So the Veterans Court impliedly rejected the argument by Ms. [00:19:53] Speaker 01: Hampton that [00:19:54] Speaker 01: the board was required. [00:19:58] Speaker 01: Well, actually, I'll go back up because I don't believe that Ms. [00:20:02] Speaker 01: Hampton made this argument we're hearing right now that seems to dominate the argument about the board having to review in the first instance. [00:20:11] Speaker 01: That's not my understanding. [00:20:14] Speaker 01: The RO. [00:20:14] Speaker 01: I'm sorry. [00:20:15] Speaker 01: I apologize. [00:20:17] Speaker 01: You could just say VA. [00:20:18] Speaker 01: That will clarify everything. [00:20:20] Speaker 01: The RO reviewing in the first instance is not an argument that I see before the Veterans Court or in the opening brief, which is why we would argue that it is waived. [00:20:34] Speaker 01: The argument that the board can't review in the first instance an argument or can't review new and material evidence is something we disagree with. [00:20:45] Speaker 01: In any event, the court has explained [00:20:50] Speaker 01: in disabled American veterans, the Secretary of Veterans Affairs, that the board acts on behalf of the secretary in making the ultimate decision on claims. [00:21:01] Speaker 01: The one review on appeal point that Ms. [00:21:05] Speaker 01: Hampton's counsel has raised is one that I think the court considered when concluding that the board considers matters on appeal under a de novo standard, a review considering all the evidence and material of the record. [00:21:19] Speaker 02: I think a question was asked before. [00:21:24] Speaker 02: Suppose that the board [00:21:28] Speaker 02: looking at this evidence, the May-June evidence, let's just call it, had said, obviously new, but we also think it's material. [00:21:39] Speaker 02: Could the board then evaluate the effect of the evidence on the underlying TDIU claim, or would the board be required to remand the matter to the RO for that application to take place? [00:21:51] Speaker 01: I believe the board could consider the [00:21:54] Speaker 01: the effect, especially in this case, the decision, as the court notes, there's a decision from June 1999, yet the one-year period after the denial of TDIU would have run until April 22,000. [00:22:14] Speaker 01: Given that extension of time, it makes sense that the board would also be able to consider any additional evidence. [00:22:22] Speaker 02: Is there authority on that, that the board can decide more than that the evidence is both new and material, but also can decide the underlying claim to which that evidence is material, even though the RO, by assumption here, has not decided that? [00:22:46] Speaker 01: Oh, I'm sorry. [00:22:46] Speaker 01: I might have misunderstood. [00:22:48] Speaker 01: I believe that probably would be [00:22:51] Speaker 01: a situation where the RO would consider that initially. [00:22:56] Speaker 02: I'm sorry, that the RO would consider it. [00:23:01] Speaker 02: My question is, could the board consider it initially, the it here being what is the answer to the TDIU yay or nay question now considering this evidence which has been determined to be new and material? [00:23:17] Speaker 02: Can the board decide that or does the board have to remand it? [00:23:21] Speaker 02: Yes. [00:23:23] Speaker 01: I'm not entirely certain, but I believe that because the board can consider all of the evidence that it could make that conclusion. [00:23:33] Speaker 04: Wait, can I ask you a hypothetical because I'm a little confused by your position here too. [00:23:45] Speaker 04: Evidence is submitted after the final RO decision and during the pendency of the one-year period. [00:23:51] Speaker 04: And the case is at the board, and the board looks at the evidence and says, this is new and material, but we're still going to deny TDIU. [00:23:59] Speaker 04: How does that give the veteran two decisions on a claim? [00:24:04] Speaker 04: It only gives them one, doesn't it? [00:24:06] Speaker 01: I believe so. [00:24:07] Speaker 04: So in that situation, if they decide it's new and material, don't they have to send it back to the RO? [00:24:15] Speaker 04: And isn't that what usually happens? [00:24:18] Speaker 01: That seems like that probably is the case. [00:24:22] Speaker 01: I'm just not certain about that. [00:24:24] Speaker 04: I mean, I know that there's situations where a veteran can waive a right to a remand and have the board consider the evidence for the first time on appeal. [00:24:32] Speaker 04: But if the veteran wants a decision from the RO on a claim when there's no material evidence that's been found, wouldn't it get sent back to the RO? [00:24:41] Speaker 01: I believe that would probably be the case. [00:24:45] Speaker 01: One of the main issues is that Ms. [00:24:49] Speaker 01: Hampton's May 1999 statement and the June 1999 examination, which is referred to by the Board and Veterans Court as a May 27, 1999 decision, that both of them were considered by the regional office in its [00:25:14] Speaker 01: at Appendix 295 and 301, and at 300. [00:25:18] Speaker 01: And as Judge Clemger noted, also the IU not found was discussed. [00:25:26] Speaker 01: And in the November 2000 decision, the board definitely considered unemployability. [00:25:34] Speaker 01: It explained that there was a complete lack of evidence of unemployability at Appendix 275. [00:25:39] Speaker 01: The board stated that there was. [00:25:41] Speaker 04: Great. [00:25:41] Speaker 04: I mean, we're here. [00:25:42] Speaker 04: Like the board, at some point, [00:25:44] Speaker 04: and I don't think there's any dispute upon this, found that this TDIU claim and this evidence that we're talking about was considered by the board and determined not to be new material. [00:25:57] Speaker 04: And that's a fact finding. [00:25:58] Speaker 04: We can't get around that, or we can't touch that. [00:26:02] Speaker 04: But the question still is, that doesn't help you if we require that the RO to have considered it explicitly. [00:26:11] Speaker 04: Right? [00:26:11] Speaker 04: Because there's no, I don't think, apart from this, and you can address Judge Clubman's question, I'm sure you can. [00:26:17] Speaker 04: Same thing. [00:26:18] Speaker 04: Apart from this very vague reference to IU and this ratings decision, there's no discussion of TDIU. [00:26:25] Speaker 04: It's not listed as an issue. [00:26:27] Speaker 04: But the evidence is. [00:26:29] Speaker 04: So, you know, I don't know what that reference means, but assuming it doesn't actually address TDIU, then the only way you get to [00:26:37] Speaker 04: an argument that the RO properly addressed it is through the fact that it addressed it in terms of the scheduler rating and that we would have some kind of implicit denial rule. [00:26:51] Speaker 01: Yes, generally a claim for TDIU is part of a claim for increased rating for disability when unemployability is raised during the course of an appeal. [00:26:58] Speaker 01: A TDIU is a form of increased rating and therefore when the [00:27:05] Speaker 01: the RO considered an increased rating claim, it came to a conclusion that there was no increased rating warranted. [00:27:19] Speaker 02: I want to ask you the same question. [00:27:20] Speaker 02: Mr. Oliver said that one can have no individual unemployability on each of four individual or three individual scheduler ratings, the migraine at 30, the GERD at whatever, and still have the possibility of [00:27:43] Speaker 02: the non-schedular TDIU so that what the RO I guess said on June 23rd does not in fact imply, entail a rejection of a TDIU claim, which was not part of the appendix page 305 May request for reconsideration. [00:28:11] Speaker 01: The Veterans Court concluded that the Board's analysis in the November 2000 Board decision met the requirements of Bond and Brood and it certainly considered whether the statements from April [00:28:34] Speaker 01: 1999 through the November 2000 board decision, re-raised the issue of TDIU. [00:28:41] Speaker 02: That re-raised phrase is enormous mischief in this case because it could mean either of two things. [00:28:49] Speaker 02: newly provided support for, or addressed a re-asserted claim. [00:28:59] Speaker 02: And the problem is that there's all this play on the ambiguity of that term. [00:29:08] Speaker 02: And it didn't have to be pressed again, did it, after the March 1990 in order for the board to be obliged, not the board, the RO, to be obliged to consider it if 3.156B means what Ms. [00:29:26] Speaker 02: Hampton says it means. [00:29:28] Speaker 01: It didn't have to be repressed, meaning the actual subject of TDIU and unemployability did not have to be mentioned again. [00:29:38] Speaker 02: Right, what do you think had to happen in order for 3.156b, assuming it means that the RO has to, as an initial matter, consider this post-March evidence? [00:29:56] Speaker 02: What do you think? [00:29:58] Speaker 02: Is the veteran obliged to ask for that to happen to the RO? [00:30:07] Speaker 02: That is, present that request to the RO? [00:30:10] Speaker 02: Or even if not, when it gets to the board, can the veteran say, there's this post-final decision, post-RO final decision, new evidence, it's material, you've got to send that back to the board, back to the RO? [00:30:26] Speaker 01: No, I don't believe that the veteran has to [00:30:28] Speaker 01: provide a specific statement that the May 1999 claim evidence of that sort, which in this case did not even mention unemployability, has to be considered as long as it's within one year after the decision that's at issue. [00:30:46] Speaker 01: However, the board certainly did consider those questions. [00:30:51] Speaker 01: It did consider unemployability. [00:30:53] Speaker 04: Sure. [00:30:53] Speaker 04: But I mean, we're not talking about the board. [00:30:55] Speaker 04: I mean, the legal issue we have here, because there's factual findings that the board did consider this. [00:31:00] Speaker 04: Whether it's good or not, we can't touch it. [00:31:03] Speaker 04: But the legal issue we have is whether, despite the board's consideration and determination that it wasn't new and material, [00:31:10] Speaker 04: that the RO has to independently do it and do it in an explicit way that recognizes it and says this is not new material. [00:31:19] Speaker 04: And if we find that as a matter of law, that the RO has to do it in the first instance, and that the RO's decision has to specifically address the evidence and say this is not new material as to the TDIU claim, then you have an issue here, right? [00:31:37] Speaker 01: Yes, but I believe number one, the board can consider that issue in the first instance. [00:31:46] Speaker 01: And number two, Ms. [00:31:48] Speaker 01: Hampton did not even raise this argument below or even in her opening brief. [00:31:53] Speaker 01: There was nothing mentioned about the board not reviewing this question of new and material evidence in the first instance. [00:31:59] Speaker 01: And in fact, we argue that Ms. [00:32:04] Speaker 01: Hampton has [00:32:04] Speaker 01: in essence, conceded that the board did perform the necessary review, which she argued in her opening brief that the board had not done. [00:32:14] Speaker 01: This is a change in the legal basis of her argument. [00:32:19] Speaker 04: But can we just get to the legal argument that we've been talking about? [00:32:24] Speaker 04: What is the secretary's position [00:32:27] Speaker 04: on whether the RO has to do this in the first instance and has to do it in an explicit way. [00:32:32] Speaker 04: And does our decisions and Broad and Bond dictate that? [00:32:39] Speaker 04: Or does 3.156 allow, as I think is your position, for it to be done by the board? [00:32:46] Speaker 04: And what's your argument for that latter point? [00:32:49] Speaker 01: Well, I'll start with the issue raised by Ms. [00:32:53] Speaker 01: Hampton about Barode, the argument that there can't be a presumption that VA considered the evidence. [00:33:04] Speaker 01: In Barode, this is at footnote one, there was nothing in the decision that informed Barode that his missing service records [00:33:14] Speaker 01: which he contended were new and material evidence, were ever considered for any purpose. [00:33:18] Speaker 03: But what's your answer to Judge Hughes? [00:33:21] Speaker 03: Judge Hughes didn't ask you what Barrowes said. [00:33:23] Speaker 03: I'm sorry. [00:33:23] Speaker 03: He asked you whether or not you agree or disagree with your adversary whose proposition is that under 3.1.56b, it is the RO in every case that must make the determination whether proffered evidence coming in one year after the writing decision is new and material, period. [00:33:44] Speaker 03: and that the board can't do that? [00:33:49] Speaker 01: Our position is that the board can. [00:33:51] Speaker 04: You think the board can do that? [00:33:54] Speaker 04: And is that based upon the text of 3.156? [00:33:58] Speaker 01: It's based on the general references to the secretary, based upon the court's decision in Disabled American Veterans talking [00:34:10] Speaker 03: Well, just to clarify, I'm trying to get the issues in front of the court narrowed to what happened. [00:34:16] Speaker 03: Can the board look at a record like here? [00:34:22] Speaker 03: And can the board say, we believe that the RO implicitly denied the TDIU? [00:34:31] Speaker 01: Well, here the board is looking at the November 2000. [00:34:36] Speaker 03: In this particular case, the 2000 board [00:34:40] Speaker 03: which is the board that supposedly did the fact-finding. [00:34:43] Speaker 03: That board was looking at the 623.99 RO decision. [00:34:49] Speaker 03: And what I'm asking is, under the law, can the board, looking at that decision, not itself make fact findings, but simply say, we are reviewing what happened at the RO. [00:35:00] Speaker 03: And because the RO did not increase any of the percentage ratings on the established claims, [00:35:09] Speaker 03: thereby getting you up to TDIU. [00:35:13] Speaker 03: Nor did the RO make any indication that an extra scheduler reading would be appropriate by referring the matter to where it goes. [00:35:23] Speaker 03: The board is saying we think implicitly the RO did its job and denied a TDIU. [00:35:33] Speaker 01: I think the board can make that conclusion. [00:35:36] Speaker 01: And here is the 2020 board is reviewing the 2000 board's review and its review of the evidence and its determination that there was no unemployability. [00:35:56] Speaker 03: The rationale of the 2020 board is that there was an implicit denial of the TDIU. [00:36:03] Speaker 03: Right? [00:36:05] Speaker 01: The 2020 board is concluding that there's an implicit denial. [00:36:10] Speaker 03: The board whose decision got reviewed by the CABC, which is up here, that 2020 board was looking back at a 2000 board, which was looking back at a 1999 rating decision. [00:36:23] Speaker 01: Correct. [00:36:24] Speaker 03: And one of the grounds on which your side prevailed was that there had been an implicit denial of the TDIU claim. [00:36:33] Speaker 01: And that was an independent ground. [00:36:37] Speaker 03: Well, the biggest part of your brief here was that that was an independent ground. [00:36:41] Speaker 03: Mr. Raven didn't raise it, and there were you win. [00:36:44] Speaker 03: But what I'm trying to get at is we know that there was not an explicit writing in the 62399 RRO rating decision. [00:36:56] Speaker 03: It doesn't say we have reviewed your underlying claim for TDIU, which inheres in every [00:37:03] Speaker 03: decision and we've denied it. [00:37:05] Speaker 03: They don't say that. [00:37:08] Speaker 03: So if anybody's trying to argue that there's been an implicit denial, it has to be implicit. [00:37:14] Speaker 01: The explicit, I think, now a conclusion that there was no new and material evidence has been made by the 2020 board. [00:37:24] Speaker 02: Can I suggest, you said that you thought that, I think you said, that you thought that Ms. [00:37:30] Speaker 02: Hampton in the Veterans Court did not raise to the Veterans Court an argument that the obligation of 3.156B is an obligation that must be fulfilled by the RO, not by the board. [00:37:45] Speaker 02: I'm looking near the back of the appendix, the appendix page numbers. [00:37:51] Speaker 02: stop being recorded here. [00:37:55] Speaker 02: But on page 10, which is of Ms. [00:37:58] Speaker 02: Hampton's brief in the Veterans Court, which is the summary of the argument, and then exactly the same thing at page 17, [00:38:07] Speaker 02: She says, contrary to the board's conclusion otherwise, the issue of entitlement to a total rating based on individual employability could not have been implicitly denied in the November 2000 decision because the board did not have jurisdiction over that issue. [00:38:26] Speaker 02: As noted above, after the receipt of new and material evidence within one year of the March 1999 rating decision, the regional office was required to issue a new rating decision. [00:38:36] Speaker 02: It did not do so. [00:38:37] Speaker 02: Citing right 3.156B, is that not the argument being made here? [00:38:46] Speaker 01: Well, that seems to say it in a different way, and I had not noticed that statement. [00:38:53] Speaker 01: A new rating decision is not, though, what we understand as Hampton 2 have argued in their opening brief here. [00:39:03] Speaker 01: even if she did raise it to the Veterans Court. [00:39:06] Speaker 03: What does the Department want us to do with this case? [00:39:11] Speaker 03: What's the answer? [00:39:12] Speaker 01: Well, we would first argue that the Court should dismiss the appeal. [00:39:16] Speaker 01: Why? [00:39:18] Speaker 01: Because the Veterans Court has simply applied 3.156b to the facts of the case and hasn't... Well, soon we disagree with that. [00:39:25] Speaker 03: We think a legal issue is presented. [00:39:28] Speaker 01: Then, number one, Ms. [00:39:31] Speaker 01: Hampton did not address [00:39:33] Speaker 01: the alternative basis for the veterans? [00:39:35] Speaker 03: You make an argument that there was actually a fact finding here somewhere in the record that this particular piece of evidence were not new and material. [00:39:43] Speaker 03: And if that's correct, that would be the answer. [00:39:46] Speaker 03: We can't review that issue. [00:39:48] Speaker 03: Correct. [00:39:48] Speaker 03: Now where in the record is that fact finding made? [00:39:52] Speaker 03: Who said that the evidence is not new and material? [00:39:56] Speaker 03: Board, the Veterans Court concluded that the Board's statement... An appointment in the record to the writing in which that point is made. [00:40:09] Speaker 03: An express fact-finding of this evidence is not new and material. [00:40:15] Speaker 01: Well, the Veterans Court first noted it at page four stating that the [00:40:22] Speaker 03: This is the Veterans Court decision you're talking about? [00:40:26] Speaker 01: Right. [00:40:26] Speaker 01: I'll start with the Veterans Court decision stating that, contrary to the appellant's arguments that the board decision on appeal failed to discuss whether a May 1999 statement and June 1990 exam detailing increased migraine activity constituted new and material evidence under 3.156B, the board decision addressed that evidence of record and determined that statements after the April 1999... Non-reranged. [00:40:53] Speaker 01: So right, did not re-raise. [00:40:55] Speaker 03: And if you- Why does that mean that we know that there's been a fact finding that the evidence was not new and material? [00:41:03] Speaker 03: The re-raise comment was raised in connection with the bifurcation point? [00:41:09] Speaker 01: Well, I believe it goes to both points. [00:41:11] Speaker 03: You believe that's not good enough? [00:41:13] Speaker 04: OK, I understand the- I mean, that's not what that part says. [00:41:16] Speaker 04: That seems to suggest that if there was a bifurcation, that the court didn't decide whether [00:41:23] Speaker 04: the evidence was specifically addressed or not. [00:41:28] Speaker 04: But I thought your position was that there's also an additional point in the board's decision that suggests that even if there wasn't bifurcation, that there's still enough to find implicit denial. [00:41:43] Speaker 01: Correct. [00:41:44] Speaker 01: The board made both. [00:41:46] Speaker 01: Where is that? [00:41:48] Speaker 01: Well, pages appendix 27 and 28. [00:41:52] Speaker 01: Both find that at the bottom of page 27, statements after the April 1990 marrying rating decision and before the November 2000 board decision do not re-raise the issue of TDIU. [00:42:05] Speaker 01: While the veteran continued to argue about some of the ratings assigned, she never specifically indicated that her migraines were so severe they rendered her unable to secure [00:42:14] Speaker 04: But that's all going to the bifurcation point. [00:42:16] Speaker 04: Can you just get to the paragraph that we want you to get to on page 28 and tell us why you think that supports your argument? [00:42:26] Speaker 01: There was an implicit denial if there actually was an attempt to re-raise a TDIU claim. [00:42:39] Speaker 01: then it was implicitly denied when a conclusion was reached when considering migraines that Ms. [00:42:50] Speaker 04: Hampton was not entitled to an increased rating for migraines and that- So if we find, you're going well over your time, if we find as a matter of law that the RO can implicitly deny [00:43:06] Speaker 04: a TDIU claim, this is the factual support for the notion that it did so here. [00:43:14] Speaker 04: But if we find as a matter of law that there can't be implicit denial for a TDIU claim, then this doesn't get you where you need to go. [00:43:23] Speaker 01: except that we believe that the board can reach that conclusion. [00:43:28] Speaker 01: Yes, and also that on page 27 at the top of the last paragraph the opening sentence says the board finds that TDIU was not part of the prior claim and even assuming that it was that, I'll skip ahead, implicit denial of the implicit claim for a TDIU occurred. [00:43:49] Speaker 01: So we understand that paragraph and [00:43:53] Speaker 01: at the bottom of appendix page 27 to cover both points, the new and material evidence and also bifurcation. [00:44:03] Speaker 03: You're not relying on bifurcation to prevail on this appeal? [00:44:08] Speaker 01: Well, the bifurcation is certainly a basis for the Board and the Veterans Court's conclusion. [00:44:17] Speaker 03: And I believe that because TDIU was not released... How could the TDIU claim coming May, the April claim, which is still alive at the time, how could it possibly be bifurcated? [00:44:32] Speaker 01: The April 1999 decision denied TDIU. [00:44:39] Speaker 01: Can you answer my question? [00:44:43] Speaker 03: How can it possibly have bifurcated? [00:44:45] Speaker 01: Well, the board found it was bifurcated because, number one, the TDIU claim was based on three separate, or three together, conditions, both the migraines, [00:44:58] Speaker 01: UTIs and GERD. [00:45:01] Speaker 01: So there were three bases for an argument that Ms. [00:45:06] Speaker 01: Hampton was totally unemployable, whereas her later claim was simply for migraines. [00:45:14] Speaker 01: So that was one basis of the board's conclusion and our argument as well that the TDIU claim was bifurcated. [00:45:22] Speaker 01: Also simply the fact that she never asserted that her migraines [00:45:26] Speaker 01: were so severe that she was unemployable after that April 1999 denial, as well as the fact that she didn't appeal the April 1999 denial of TDIU and simply file the new claim. [00:45:43] Speaker 01: for migraines. [00:45:44] Speaker 01: Thank you. [00:45:47] Speaker 02: I have nothing further. [00:45:51] Speaker 02: Can you just address this, that we do have the Veterans Court saying that the board in 2020 found an implicit denial back in November of 2000. [00:46:09] Speaker 02: If two things are true, then do you lose? [00:46:14] Speaker 02: The two things are the board can make that finding, and two, it can do so implicitly, not expressly. [00:46:26] Speaker 05: As I understand your question, the board said that the statements submitted by Ms. [00:46:35] Speaker 05: Hampton do not re-raise the issue of TDIU. [00:46:39] Speaker 02: It also made some statements about implicit denial. [00:46:42] Speaker 02: In 2020, it said we read the November 2000 as an implicit denial of that. [00:46:51] Speaker 02: Put aside that unfortunate re-raised language. [00:46:56] Speaker 05: Ms. [00:46:57] Speaker 05: Hampton's position would be that implicit denial, 3.156b cannot be implicitly denied. [00:47:04] Speaker 05: You cannot implicitly deny what is required by regulation to be [00:47:09] Speaker 02: a decision and i think that's what but i wanted to just to be clear you're also arguing that even if the R.O. [00:47:17] Speaker 05: could implicitly deny a board can't the board can't either because you need to have that decision that has to be has to be recognized there has to be something to indicate and that's what i believe that i'm a little confused now uh... and i'm not sure how i can get out of this confusion at one forty five but [00:47:39] Speaker 04: Are you saying that when the board denies, knowing that there's additional evidence in front of it, and it denies a claim specifically for TDIU, but doesn't mention whether that evidence was new material or not, that it hasn't complied with 3.156 just because it hasn't said it's new material or not, even though they've explicitly considered it? [00:48:06] Speaker 05: Well, your fact pattern isn't... No, no, no. [00:48:10] Speaker 04: Answer my question. [00:48:10] Speaker 04: I don't care about the facts right now. [00:48:13] Speaker 05: In that situation, if they're deciding the same claim and that new material evidence has been received, they can go ahead and decide the claim. [00:48:19] Speaker 04: 3.156 can be implicitly decided. [00:48:24] Speaker 04: If the RO or the board rejects the claim you're raising and considers the evidence that's covered by 3.156, [00:48:36] Speaker 04: It is considered a properly entered 3.156, even if it doesn't go through the steps of saying, we have this evidence, it's not new and material, or it is new and material, but we still reject the claim. [00:48:49] Speaker 04: If they consider the evidence and they reject the claim, they've complied with 3.156. [00:48:53] Speaker 05: Yes and no. [00:48:54] Speaker 05: Yes, they've made a decision. [00:48:55] Speaker 05: Let's assume it's yes. [00:48:56] Speaker 05: Okay. [00:48:57] Speaker 04: So, and the board, let's just assume the board can do that. [00:49:00] Speaker 04: Your beef, I think, is that the RO shouldn't be able to do that. [00:49:05] Speaker 05: No, the board shouldn't be able to do that. [00:49:06] Speaker 05: Well, I mean, I don't... The RO shouldn't be able to implicitly deny. [00:49:12] Speaker 05: The RO has to issue a decision, just like you gave the scenario, and the question was, if the board found that there was no material evidence, does it have to read it? [00:49:19] Speaker 04: But if the RO legally can implicitly deny, [00:49:24] Speaker 04: the TDIU claim based upon this new evidence. [00:49:28] Speaker 04: I know you disagree with that, but let's assume we roll against you. [00:49:31] Speaker 04: Then isn't this paragraph we're talking about on page 28 a sufficient factual finding that the RO specifically did that? [00:49:40] Speaker 04: Sure. [00:49:41] Speaker ?: Absolutely. [00:49:42] Speaker 03: If an RO decision lists evidence that it's considered, and the evidence hasn't previously been in the record, it's new, isn't it, as a matter of law? [00:49:56] Speaker 05: Yes. [00:49:56] Speaker 05: It's new. [00:49:58] Speaker 03: And if the evidence relates to a claim, a different claim, it's material, isn't it? [00:50:05] Speaker 03: Correct. [00:50:05] Speaker 03: So in this particular case, we have the two pieces of evidence you're talking about. [00:50:10] Speaker 03: One is explicitly referred to in the 62399 form, right? [00:50:16] Speaker 03: Sure. [00:50:17] Speaker 03: Which is the medical record. [00:50:18] Speaker 05: Yes, Your Honor. [00:50:18] Speaker 03: And so that is of necessity, new and material. [00:50:21] Speaker 05: Yes. [00:50:23] Speaker 03: And anyone that said it's not, you'd reverse them, right? [00:50:26] Speaker 05: Yes. [00:50:27] Speaker 03: OK. [00:50:27] Speaker 03: The second piece of evidence, which is your client's letter, was not expressly listed as evidence, right? [00:50:34] Speaker 03: But it obviously was considered because the claim for hypertension was denied, correct? [00:50:40] Speaker 05: Correct. [00:50:40] Speaker 03: Is it fair to treat that letter as having been considered? [00:50:47] Speaker 05: Yes, that would be considered too. [00:50:48] Speaker 03: My letter was new and it was obviously material because it was raising hypertension as well as headaches. [00:50:56] Speaker 05: Yes. [00:50:57] Speaker 03: So I would think there can't be any discussion in this case that two pieces of evidence are not new and material. [00:51:04] Speaker 05: Yes, but there's more than just two pieces of evidence. [00:51:07] Speaker 05: In fact, in the record shows there's like [00:51:09] Speaker 05: four pieces of evidence. [00:51:10] Speaker 05: There's additional medical records. [00:51:12] Speaker 05: But the point for Ms. [00:51:13] Speaker 05: Hampton is that the regional office and this court's decisions require the regional office to explicitly make a determination, make a finding of fact and conclusion of law about whether evidence received is new material as it relates to a different claim, TDIU. [00:51:27] Speaker 05: So she introduced evidence or submitted evidence that was new. [00:51:32] Speaker 03: I understand what you want. [00:51:33] Speaker 03: You want an explicit finding reflected in the RO's decision. [00:51:38] Speaker 05: Correct. [00:51:38] Speaker 03: It shows you what it considered and you want them not only to address that in terms of the increased ratings and they're waiting for a new disability to hypertension, but you also want them to recognize the impact yes or no on TDIU. [00:51:53] Speaker 05: Correct. [00:51:54] Speaker 05: And had this been to the board, had the board been deciding increased rating for migraines and noticed that [00:51:59] Speaker 05: There was no material submitted within one year of the download of TDIU. [00:52:03] Speaker 03: So if, for example, we had a case that said, or if it had been held already, that it is okay for an RO to implicitly deny, right, by looking at the record in front of them and by not increasing the rating sufficiently to trigger TDIU, nor reflecting a request for extra schedule. [00:52:29] Speaker 05: The problem with that is that the court has already decided under Barad that a subsequent decision doesn't extinguish 3.156B's obligations on the secretary. [00:52:41] Speaker 05: So even if a subsequent decision can't extinguish the 3.156B requirements, then implicit denial cannot also extinguish 3.156B's obligations on the secretary. [00:52:54] Speaker 03: Your basic argument is that the RO can't [00:52:57] Speaker 03: An RO can't make an implicit denial of a TDIU claim. [00:53:03] Speaker 03: And in connection with that, a board looking at an RO decision can't say that's what happened. [00:53:09] Speaker 05: Correct. [00:53:10] Speaker 05: All this implicit denial, it's almost like saying that the regional office can implicitly deny reopening a claim or can implicitly find that new material evidence wasn't raised. [00:53:20] Speaker 05: And that's been previously rejected. [00:53:23] Speaker 05: And so I would ask the court just to impose on the secretary the obligation to explicitly require that the regional office, in the first instance, issue a rating decision finding whether or not evidence submitted within one year is new and material. [00:53:40] Speaker 05: Thank you. [00:53:40] Speaker 02: Thank you. [00:53:42] Speaker 02: Thanks to both counsel and cases submitted.