[00:00:00] Speaker 01:
Our next case for argument is 22-1491, Percivali.

[00:00:06] Speaker 01:
Did I say that right?

[00:00:07] Speaker 01:
OK, Percivali versus McDonough.

[00:00:10] Speaker 01:
Mr. Lopez Morales.

[00:00:12] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:14] Speaker 00:
Cesar Lopez Morales on behalf of Mr. Percivali.

[00:00:17] Speaker 00:
This appeal involves a highly fractured decision of the Embank Veterans Court.

[00:00:22] Speaker 00:
That decision affirmed the board's denial of my client's request for revision

[00:00:27] Speaker 00:
of his disability rating in 1971.

[00:00:29] Speaker 01:
Well, I'd certainly agree, highly fractured.

[00:00:32] Speaker 01:
There's an awful lot of opinions, and I had trouble sort of figuring out.

[00:00:35] Speaker 01:
But it seems like there's a clear majority overall that the board made an error.

[00:00:39] Speaker 01:
Is that fair?

[00:00:40] Speaker 00:
That's right, Your Honor.

[00:00:41] Speaker 00:
Multiple errors, if I may, at that.

[00:00:44] Speaker 01:
And then, well, I guess it depends on who you ask as to what the error was.

[00:00:48] Speaker 01:
But they made an error.

[00:00:49] Speaker 01:
And then there's this question about whether that error was harmless or not.

[00:00:54] Speaker 01:
There are three judges that said it was harmless.

[00:00:58] Speaker 01:
Is that right?

[00:00:59] Speaker 00:
So Your Honor, there are two.

[00:01:01] Speaker 00:
So you're exactly right, Chief Judge Moore, that a majority, six judges of the Embank Veterans Court, agreed that Mr. Percivali had a legally recognizable Q claim that was never adjudicated by the board.

[00:01:13] Speaker 00:
So you have the error of rewriting the claim, and you do have the error

[00:01:18] Speaker 00:
that the basis for the denial of the claim was wrong because there had been no change in the interpretation of a statute of regulation.

[00:01:26] Speaker 00:
Then when it comes to harmless error, you actually have two judges, judges Laura and Jaquie.

[00:01:31] Speaker 01:
Three for two different reasons, right?

[00:01:33] Speaker 00:
That's right.

[00:01:33] Speaker 01:
Yeah, OK.

[00:01:35] Speaker 01:
Oh, I'm sorry.

[00:01:36] Speaker 01:
Go ahead.

[00:01:36] Speaker 00:
No, and those two judges,

[00:01:40] Speaker 00:
basically did what we would consider was a full-on analysis of the unaddressed Q claim by looking at the relevant regulations, the diagnostic codes.

[00:01:49] Speaker 00:
Concededly, they examined the medical records in 1971 and made a determination.

[00:01:55] Speaker 00:
And then you have judge.

[00:01:56] Speaker 03:
I don't understand how you count the three judges who disagreed with the majority holding in determining what the relief should be.

[00:02:08] Speaker 03:
I just don't understand that.

[00:02:09] Speaker 03:
You had six judges who say it's error, and then all of a sudden in determining the relief, you count three judges who say it wasn't error.

[00:02:19] Speaker 03:
How's that possible?

[00:02:21] Speaker 00:
Your honor, we're not saying that.

[00:02:23] Speaker 00:
So you're exactly right that there's the opinion by Chief Judge Bartley that says.

[00:02:28] Speaker 03:
I guess I'm asking you, isn't that itself an error to be counting the three judges who disagreed with the majority?

[00:02:36] Speaker 03:
in determining what the relief should be.

[00:02:38] Speaker 03:
How can it be that when you get to that stage, all of a sudden you disregard the majority holding that was error?

[00:02:44] Speaker 00:
That's exactly right.

[00:02:45] Speaker 03:
We have three judges who say, well, we wouldn't grant any relief because there was no error.

[00:02:49] Speaker 03:
You can't count those votes that way.

[00:02:50] Speaker 00:
I completely agree, Your Honor.

[00:02:52] Speaker 00:
Now I understand your point.

[00:02:54] Speaker 00:
And that actually goes to the principal argument that we've presented here.

[00:02:59] Speaker 01:
It's my hardest choice here.

[00:03:02] Speaker 01:
Who do I send this back to?

[00:03:03] Speaker 01:
I mean, technically, I have to send it back to the Veterans Court.

[00:03:06] Speaker 01:
But I think it should go all the way back to the board.

[00:03:09] Speaker 01:
Do you think it should go back to the Veterans Court for them to somehow reassess the harmless error standard?

[00:03:16] Speaker 01:
Or do you agree it should go back to the board

[00:03:19] Speaker 00:
fact-finding in the first instance on this key point uh... you know i agree it should go back to the board for several reasons one is fact-finding another one is judged i pointed out uh... you can't count the the judge alan judgment concurrence for purposes of the remedy you already have a holding that mister first of all you had a viable legally viable claim that was never adjudicated and the veterans court and this court have already stated time and again

[00:03:47] Speaker 00:
that when there is a properly raised Q claim before the board and the board has failed to pass on it, the proper remedy is for the Veterans Court to remand that claim back to the board.

[00:03:59] Speaker 04:
So, and that's... Councillor Morales, what's our standard of review here?

[00:04:04] Speaker 00:
So, Your Honor, our standard of review is de novo review of all questions of legal errors.

[00:04:11] Speaker 04:
So, if it's de novo,

[00:04:13] Speaker 04:
Does it matter that we have this fracture in the opinions below?

[00:04:19] Speaker 00:
Your Honor, it doesn't matter for purposes of our argument, because a six-judge majority already concluded there was error.

[00:04:27] Speaker 00:
Those errors are subject to the novel review.

[00:04:30] Speaker 00:
But when it comes to the remedy, then because there is an unaddressed cue claim under this court's precedence, such as in Andre versus Principi, Ledford versus West,

[00:04:41] Speaker 03:
uh... the veterans court's own precedence in lampers to speak and and many others the only course of action there when you have an unaddressed you claim is to send it back to the board for adjudication well i mean that's not quite true i mean it could be a harmless error but you don't have a majority here making a harmless error determination even the three who found harmless error the reasoning of those things wrong

[00:05:08] Speaker 00:
you know i i agree with that uh... that said with respect to the the second point i would make is the harmless air determination of course it's cabinet by the veterans courts own jurisdiction and and so that inquiry has to be consistent within the arm of their determination if they said look we've looked at this record and there's no way on this record that the board finds it but i don't read any of the either of the to armless air decisions the same

[00:05:37] Speaker 00:
We would agree with that, Your Honor.

[00:05:40] Speaker 00:
I guess the only caveat I would make is when there is no opinion by the board on this specific Q claim that has been raised, the Veterans Court doesn't have jurisdiction to reach the merits of that Q claim.

[00:05:53] Speaker 03:
I don't think that's right.

[00:05:54] Speaker 03:
I think that the harmless error

[00:05:56] Speaker 03:
requires them to look at the entire record, even though our decision hasn't been rendered on that.

[00:06:01] Speaker 03:
And they could say, based on this record, there is no way that the board could possibly find Q. It seems to me that's permissible.

[00:06:09] Speaker 03:
But they didn't do that.

[00:06:10] Speaker 00:
I agree, Your Honor.

[00:06:11] Speaker 00:
They did not do that.

[00:06:13] Speaker 01:
You agree they didn't do that?

[00:06:15] Speaker 01:
But do you agree that they could do that?

[00:06:17] Speaker 00:
Our position is that they could not have.

[00:06:19] Speaker 00:
And Judge Dyke, for example, I'm guessing you're relying on cases like Tadlock and many other cases that do empower the Veterans Court in certain circumstances to look at the record and make a determination.

[00:06:32] Speaker 00:
But our point is, Andre, I encourage your honors to look at Andre versus Principi, is very clear that when there is an unaddressed cue claim, the Veterans Court just doesn't have the board decision, which is a statutory requirement.

[00:06:47] Speaker 00:
to then look at the record and adjudicate the claim on its own.

[00:06:50] Speaker 00:
So our position is there was no determination, but in any event.

[00:06:54] Speaker 03:
So you mean that harmless error can't apply in a Q case?

[00:06:57] Speaker 03:
What's the basis for that?

[00:06:59] Speaker 00:
No, Your Honor.

[00:07:00] Speaker 00:
It certainly applies.

[00:07:02] Speaker 00:
And I apologize if I'm not being clear.

[00:07:04] Speaker 00:
The harmless error determination certainly applies in a Q case where the Q claim, the specific claim, has been adjudicated by the board.

[00:07:14] Speaker 00:
And in that circumstance, the Veterans Court does have the authority to look at the record.

[00:07:18] Speaker 03:
What's the basis for saying harmless error doesn't apply where there has been no decision?

[00:07:23] Speaker 03:
As long as the proper standard is applied, the Veterans Court looks at the record and says, well, there's no possible way here that anybody on this record could find harmless error.

[00:07:35] Speaker 03:
Isn't that exactly what they're supposed to do?

[00:07:37] Speaker 03:
Under the harmless error standard is to say, well, there's no way that this could come out differently, so we're not remanding it.

[00:07:44] Speaker 00:
So your honor, it depends on what the analysis would be.

[00:07:49] Speaker 00:
So when there is no board decision, the Veterans Court just doesn't have the jurisdiction to make that harmless error analysis.

[00:07:57] Speaker 00:
Why not?

[00:07:58] Speaker 03:
The harmless error statute is general.

[00:08:01] Speaker 03:
It says harmless errors to be applied in every case.

[00:08:05] Speaker 03:
And the Supreme Court has said that in every case.

[00:08:07] Speaker 03:
Why are two cases different?

[00:08:10] Speaker 00:
I don't think it's about the Q case, Your Honor.

[00:08:13] Speaker 00:
I think it's about the Veterans Court's authority.

[00:08:15] Speaker 00:
So the obligation to take account prejudicial error presupposes that the Veterans Court has the authority to take account of that prejudicial error.

[00:08:25] Speaker 00:
And the only basis for the Veterans Court's authority to review a claim, whether it's on the merits or as part of the harmless error inquiry,

[00:08:35] Speaker 00:
is that there has been a board adjudication on that claim.

[00:08:38] Speaker 01:
I certainly understand your argument.

[00:08:42] Speaker 01:
But do you have to win vis-a-vis Judge Dyke's questions?

[00:08:46] Speaker 01:
Do you have to win that the Veterans Court can never review harmless error in a cue claim to prevail in this case?

[00:08:53] Speaker 01:
Because I ask that.

[00:08:55] Speaker 01:
Because I think in this particular case, you could argue a narrower point that would leave the bigger question for a later day, which is in this case,

[00:09:05] Speaker 01:
the Veterans Court would have to review the medical records and determine whether they clearly show arthritis or not.

[00:09:09] Speaker 01:
And that's clearly a fact finding that nobody made that is not in the nature of a no reasonable person could conclude harmless error concept here.

[00:09:18] Speaker 01:
So do you have possibly a narrower ground that doesn't require us to decide the bigger question?

[00:09:22] Speaker 00:
We do, Your Honor.

[00:09:23] Speaker 00:
And we do make that point very clearly in our briefs.

[00:09:27] Speaker 00:
And footnote four of Andre makes that very point.

[00:09:31] Speaker 00:
when a cue claim as here rests on factual allegations such as an examination of the medical records.

[00:09:38] Speaker 01:
So your view of Tadlock, as I understand it, isn't that there can't be a harmless error analysis, is that the board doesn't have the authority to make specific narrow fact findings in the first instance about this kind of matter.

[00:09:51] Speaker 00:
That's exactly right, Your Honor.

[00:09:54] Speaker 00:
I'm happy to address what we think is the key legal error that goes to the crux of the case, which is the basis for the board's denial as a matter of law.

[00:10:06] Speaker 00:
I think that can be addressed very quickly.

[00:10:09] Speaker 00:
Recall that, according to the board, Mr. Percivali's key claim.

[00:10:13] Speaker 03:
You've already won on that.

[00:10:15] Speaker 03:
You've already won.

[00:10:16] Speaker 03:
I mean, there's a majority of the Veterans Court that says you're right about that.

[00:10:20] Speaker 00:
That's right, Your Honor.

[00:10:21] Speaker 00:
And we're happy for this court to affirm that.

[00:10:25] Speaker 00:
There are a lot of other cases where that question is coming up.

[00:10:32] Speaker 00:
And at least one of the judges disagrees with that view.

[00:10:37] Speaker 00:
So there's a little bit of confusion in the Veterans Court.

[00:10:39] Speaker 00:
But we're exactly right that there were right as a matter of law.

[00:10:42] Speaker 00:
And we're only asking this court

[00:10:45] Speaker 00:
to affirm that portion and then, as Chief Judge Moore pointed out, to remand it back to the board for adjudication of Mr. Percivali's actual key claim.

[00:10:54] Speaker 04:
Is there any reason why we should remand it back to the Veterans Court?

[00:11:00] Speaker 00:
We don't think so, Your Honor, for the reasons I pointed out earlier.

[00:11:03] Speaker 04:
Are we constrained in any way in sending it back to the board?

[00:11:09] Speaker 00:
Your Honor, I guess.

[00:11:13] Speaker 00:
the only reason why you would be constrained is because you already have a a majority of the court saying that there was no adjudication of the q claim uh... and our our position is that it is up to the board to make the initial fact-finding uh... to evaluate the the the medical records and and that authority belongs to the board by statute as chief judge more pointed out that you are going to miss if i have a right it's not that we're constraint that were compelled to send back

[00:11:43] Speaker 00:
That's exactly right, Your Honor.

[00:11:45] Speaker 00:
And our request is for this Court to vacate the judgment below and direct the Veterans Court to remand the case back to the Board for adjudication in the first instance of Mr. Percivali's actual claim.

[00:11:59] Speaker 00:
So if there are no further questions, I'm happy to reserve the remainder of my time for rebuttal.

[00:12:05] Speaker 01:
Okay.

[00:12:05] Speaker 01:
Thank you, Counsel.

[00:12:06] Speaker 00:
Thank you, Ruth.

[00:12:08] Speaker 01:
Counsel, how do I say your name?

[00:12:09] Speaker 01:
Mr. O. Mr. O. Please proceed.

[00:12:12] Speaker 02:
Thank you, Your Honor, and may it please the Court.

[00:12:15] Speaker 03:
I think the sort of winch... Isn't it clear that the Veterans Court doesn't know how to count here?

[00:12:21] Speaker 03:
I mean, there's a majority decision saying there was error here, and then when it gets to relief, they count the dissenters from that proposition in determining what the relief should be.

[00:12:30] Speaker 03:
How can that possibly be right?

[00:12:31] Speaker 02:
Judge Dyke, I will grant you that the Veterans Court's decision is a bit confusing and fractured, but let me...

[00:12:38] Speaker 02:
Let me present our position as to how this court can affirm the Veterans Court's judgment.

[00:12:43] Speaker 02:
Number one.

[00:12:44] Speaker 03:
But just before you do that, just answer my question.

[00:12:46] Speaker 03:
How could you count the dissenters from a majority decision in determining relief?

[00:12:52] Speaker 02:
I think what they did was they came out with a six-judge majority as to what the ultimate judgment would be, meaning the ultimate outcome on relief.

[00:13:03] Speaker 02:
But you are correct, Judge Dyke, that

[00:13:05] Speaker 02:
there were six judges that took the view that the board misconstrued Mr. Percivali anyway.

[00:13:11] Speaker 02:
And you're not challenging that?

[00:13:13] Speaker 02:
I actually am challenging that, Your Honor, and that's sort of the crux.

[00:13:16] Speaker 04:
You appealed in this case?

[00:13:17] Speaker 04:
You appealed that?

[00:13:18] Speaker 02:
No, no, we haven't.

[00:13:19] Speaker 02:
But this court's jurisdiction allows this court to review whether the Veterans Court exceeded its jurisdictional authority.

[00:13:27] Speaker 02:
I know we can review it, but have you challenged it?

[00:13:29] Speaker 02:
No, no.

[00:13:30] Speaker 02:
I mean, we believe the court can

[00:13:32] Speaker 02:
you know, circumscribed jurisdiction suesponte.

[00:13:35] Speaker 02:
So, you know, analyzing the question of whether the Veterans Court exceeded its jurisdiction.

[00:13:39] Speaker 01:
I don't know that that's right.

[00:13:39] Speaker 01:
We can decide whether we have jurisdiction suesponte, but do we really have the authority to decide whether the lower tribunal did?

[00:13:48] Speaker 02:
It's an interesting procedural question.

[00:13:51] Speaker 02:
I'll tell you why is because we got the judgment.

[00:13:54] Speaker 02:
that we're defending.

[00:13:56] Speaker 02:
And so it would be weird to be appealing a judgment.

[00:13:59] Speaker 02:
Right.

[00:13:59] Speaker 04:
That was the point.

[00:14:01] Speaker 02:
So I guess, I mean, this raises a theoretical question, right?

[00:14:03] Speaker 02:
I mean, for us, it's- Well, actually, it feels very practical in this case.

[00:14:07] Speaker 01:
Not so much theoretical.

[00:14:08] Speaker 02:
We got a judgment, which is in the VA's favor, that I don't think we can appeal.

[00:14:17] Speaker 02:
And then on the backside of that, we have

[00:14:22] Speaker 02:
What we believe was an overreach by the Veterans Court as to analyzing the scope of the CUE claim below.

[00:14:30] Speaker 02:
Because the board made a finding as to what the CUE claim was.

[00:14:33] Speaker 02:
And we believe that the Veterans Court then did a jurisdictional overreach by- We kind of acknowledge that that finding was, let's say it's incorrect, the board's finding.

[00:14:44] Speaker 04:
Why don't you go back to what's the outcome here?

[00:14:47] Speaker 04:
Can we remand this to the board?

[00:14:50] Speaker 04:
And if so, should we?

[00:14:52] Speaker 04:
And if so, why?

[00:14:54] Speaker 02:
This is assuming we don't prevail.

[00:14:57] Speaker 02:
I take a judgment.

[00:14:59] Speaker 02:
Then where would it go?

[00:14:59] Speaker 02:
That's a good question.

[00:15:03] Speaker 04:
I mean, in my mind, it would still- Wouldn't you agree that the board has yet to make any type of decision as to the- We would disagree with that.

[00:15:10] Speaker 04:
The arthritis?

[00:15:11] Speaker 02:
No.

[00:15:12] Speaker 02:
So that part's true.

[00:15:14] Speaker 02:
Where we would disagree is that it misconstrued Mr. Pershvalovsky.

[00:15:17] Speaker 02:
We think they- That's another issue.

[00:15:19] Speaker 02:
That's another issue, right.

[00:15:21] Speaker 04:
But you can see that the board never had made a decision as to the disability.

[00:15:27] Speaker 02:
As to the medical records, correct.

[00:15:29] Speaker 02:
That's correct.

[00:15:30] Speaker 04:
If we were to send it back, we'd send it back on that point for the board to make that evaluation.

[00:15:38] Speaker 02:
I think there's two elements here, because Mr. Percivali's claim is, number one, based upon an understanding of the law as it existed in 1971.

[00:15:49] Speaker 02:
He hasn't proven that.

[00:15:50] Speaker 04:
That's another issue.

[00:15:53] Speaker 04:
I'm talking about...

[00:15:55] Speaker 02:
The action of the board.

[00:15:56] Speaker 02:
If the only question left is about the medical records, I do think that probably would have to go back to the board.

[00:16:03] Speaker 02:
But I would submit that's not the only question.

[00:16:06] Speaker 03:
So help me understand what your problem is with the majority holding.

[00:16:12] Speaker 03:
How did the Veterans Court lack jurisdiction to make a determination of whether the board made an error?

[00:16:20] Speaker 02:
The board made a finding as to what Mr. Perscivali's CUE motion was that required the board to analyze the underlying record and say, this is what Mr. Perscivali is alleging.

[00:16:31] Speaker 02:
He's alleging or he's arguing that the law was clear in 1971.

[00:16:35] Speaker 02:
And it appears to be based on retroactivity.

[00:16:38] Speaker 03:
OK, but the CABC majority said, no, that's not what his claim was.

[00:16:45] Speaker 03:
He was saying that even in 1971, under the laws that existed then, I went.

[00:16:50] Speaker 03:
And so why is it impermissible for the Veterans Court to make such a determination to analyze what the claim is and find that the board made an error in construing the claim?

[00:17:01] Speaker 02:
Because the board actually addressed that issue.

[00:17:03] Speaker 02:
That's our central position.

[00:17:04] Speaker 02:
Is the board actually addressed the issue that Mr. Pershiavalli was raising that the law was clear in 1971?

[00:17:10] Speaker 02:
And on APP?

[00:17:12] Speaker 03:
First of all, that's a fact question, which is beyond our jurisdiction to determine.

[00:17:17] Speaker 03:
But that's exactly what the Veterans Court is supposed to do.

[00:17:20] Speaker 03:
They look to see what the claim is, and they decided that the board made a mistake in characterizing the claim.

[00:17:26] Speaker 03:
How do they lack jurisdiction to do that?

[00:17:28] Speaker 02:
I think the problem is the procedural posture we're in.

[00:17:31] Speaker 02:
But I don't think that abdicates this court's role to actually review whether the Veterans Court exceeded its jurisdictional authority.

[00:17:38] Speaker 03:
Help me understand.

[00:17:39] Speaker 03:
How do they exceed their jurisdiction by saying that the board mischaracterized the claim?

[00:17:46] Speaker 02:
Yes.

[00:17:46] Speaker 02:
Yes, Your Honor, because the board actually didn't mischaracterize the claim.

[00:17:51] Speaker 02:
What was that?

[00:17:53] Speaker 02:
I understand.

[00:17:54] Speaker 02:
Judge, I understand.

[00:17:55] Speaker 02:
This is a confusing decision, but I do think there is a way we can do this, which is number one, the court has a jurisdictional statute.

[00:18:02] Speaker 02:
The court is a check on the veteran's court to determine whether they exceeded their jurisdictional authority.

[00:18:08] Speaker 03:
Suppose I agree with that.

[00:18:09] Speaker 03:
What's the jurisdictional issue?

[00:18:11] Speaker 03:
How do they state their jurisdiction?

[00:18:13] Speaker 02:
APPX 70, the board addresses Mr. Persiavalli's claim exactly as Mr. Persiavalli presented it.

[00:18:19] Speaker 03:
But that's just saying they made a mistake.

[00:18:22] Speaker 03:
That's not a jurisdictional issue.

[00:18:23] Speaker 02:
Well, just to finish the point, the Veterans Court comes in and says you didn't address this claim, and the board clearly did.

[00:18:31] Speaker 03:
If we turn to APPX page 70... You're asking us to redetermine the factual determination made by the Veterans Court.

[00:18:39] Speaker 03:
that said he did raise the claim.

[00:18:41] Speaker 03:
The court said he didn't.

[00:18:43] Speaker 03:
And now you're asking us to look at his claim before the court.

[00:18:47] Speaker 02:
All I'm asking the court to do is, to me, it's clear on the page of APPX 70 that the board addressed Mr. Percivali's claim exactly as Mr. Percivali raised it.

[00:19:00] Speaker 02:
It characterized Mr. Perscivali's claim as... For what?

[00:19:02] Speaker 03:
That's not our job.

[00:19:03] Speaker 03:
That's not a jurisdictional issue.

[00:19:05] Speaker 03:
You're saying that the Veterans Court made a mistake in analyzing the claim.

[00:19:10] Speaker 03:
You know, we've said repeatedly that that's a fact determination that they made.

[00:19:14] Speaker 03:
They made the fact determination.

[00:19:16] Speaker 03:
That's within their jurisdiction.

[00:19:18] Speaker 03:
Why did they make a jurisdictional error?

[00:19:20] Speaker 02:
Right.

[00:19:20] Speaker 02:
I mean, that's the procedural route we would take to take this Veterans Court judgment and have it affirmed.

[00:19:26] Speaker 02:
But let me just

[00:19:28] Speaker 02:
offer a position here.

[00:19:30] Speaker 02:
Mr. Percivali, in order to establish CUE, number one, has to establish that the law was clear in 1971.

[00:19:37] Speaker 02:
He hasn't done that.

[00:19:38] Speaker 02:
So one way to think about it, and maybe this is an alternative route, is how do you get there?

[00:19:45] Speaker 02:
Because this court also has to take due account of prejudicial error.

[00:19:49] Speaker 02:
We've presented our best arguments as to what the state of the law was in 1971.

[00:19:54] Speaker 02:
We are going to cite the VA General Counsel's opinion in Esteban.

[00:19:58] Speaker 02:
They're going to cite Wolf and Lyles.

[00:20:00] Speaker 02:
Is that enough to say

[00:20:02] Speaker 02:
With absolute clarity under CUE standards, again, the CUE burden to establish the clarity of the law, the law then in effect in 1971, is extraordinarily high.

[00:20:12] Speaker 02:
If you send this back, is that enough to say this law was clear in 1971?

[00:20:16] Speaker 02:
I don't think it is.

[00:20:17] Speaker 02:
And I think an alternative way to get there is say it's a prejudicial error analysis.

[00:20:21] Speaker 02:
You need to establish the clarity of the law in 1971.

[00:20:23] Speaker 02:
You can't do it.

[00:20:25] Speaker 02:
There's nothing that has been raised throughout this appeal or below that would suggest the law was clear on this issue in 1971.

[00:20:32] Speaker 02:
I guess that's the alternative route.

[00:20:34] Speaker 02:
The court's not accepting our primary route.

[00:20:36] Speaker 02:
That's essentially our argument.

[00:20:37] Speaker 02:
We respectfully request the court affirm the judgment of the Veterans Court.

[00:20:43] Speaker 01:
Mr. López Morales?

[00:20:45] Speaker 00:
Just a couple of points on rebuttal, Your Honor.

[00:20:47] Speaker 00:
The government concedes that the board did not address the Q claim when it comes to applying the relevant regulations and diagnostic codes to Mr. Percivali's medical records, and the government conceded

[00:21:01] Speaker 00:
that that determination would have to be made by the board.

[00:21:05] Speaker 00:
So I think there is common ground and agreement on that.

[00:21:08] Speaker 00:
As to the last point, the 1997 general counsel opinion could not have been clear when it said that the plain terms of the regulations compelled the reading that separate evaluations and ratings needed to be.

[00:21:27] Speaker 03:
Why did he ask us to decide that question?

[00:21:29] Speaker 03:
That's what the board is supposed

[00:21:31] Speaker 03:
they'll determine, if we remand to the board, they'll determine whether in 1971 there was a clear unmistakable error or there wasn't, considering the state of the law in 1971.

[00:21:44] Speaker 03:
That's their job.

[00:21:46] Speaker 00:
I could not agree more, Your Honor.

[00:21:48] Speaker 00:
I was only responding to the government's position that this court should decide that.

[00:21:52] Speaker 00:
But I completely agree that it is for the board to adjudicate that as part of the merits of the Q claim itself.

[00:21:59] Speaker 00:
If there are no further questions.

[00:22:01] Speaker 01:
Okay, I thank both counsels.

[00:22:03] Speaker 01:
This case is taken under submission.