[00:00:00] Speaker 04:
The next case is Beck v. McDonough.

[00:00:03] Speaker 04:
Councilor Carpenter, you have reserved five minutes of your time for rebuttal.

[00:00:07] Speaker 04:
Is that correct?

[00:00:07] Speaker 04:
I have.

[00:00:08] Speaker 04:
All right.

[00:00:08] Speaker 04:
You may proceed.

[00:00:11] Speaker 01:
May it please the Court, Countess Carpenter appearing on behalf of Wanda Beck.

[00:00:15] Speaker 01:
Mrs. Beck is the substituted appellant in this matter for her deceased husband.

[00:00:21] Speaker 01:
The issue on appeal in this matter concerns the scope and applicability of the rule of law concerning issue exhaustion.

[00:00:29] Speaker 01:
Mr. Beck appealed the effective date of the assignment of his award for compensation for his disability from major depressive disorder.

[00:00:40] Speaker 01:
The board's November 20, 2019 decision denied an earlier effective date prior to October of 2013.

[00:00:50] Speaker 01:
Thus, it is clear that there was only one issue that was before both the board and before the Veterans Court.

[00:00:57] Speaker 01:
And that issue was the question of effective dates.

[00:01:05] Speaker 02:
about this.

[00:01:07] Speaker 02:
So here, as I understand it, I don't understand any alternative.

[00:01:13] Speaker 02:
There isn't a general question of effective date.

[00:01:17] Speaker 02:
There is, rather, a question whether there was a pre-2013 unadjudicated claim.

[00:01:26] Speaker 02:
Before the board, the argument was there was such an unadjudicated

[00:01:35] Speaker 02:
claim in the March claim, the pension claim, as interpreted in light of the later developments, most importantly.

[00:01:50] Speaker 02:
Veterans Court there was a discussion of two separate possible unadjudicated claims.

[00:01:57] Speaker 02:
The principal one that was discussed is the 2007 filing, whether that was an unadjudicated

[00:02:06] Speaker 02:
unadjudicated claim.

[00:02:08] Speaker 02:
And that was the first thing that the Veterans Court talked about under the heading of Shay.

[00:02:18] Speaker 02:
And then it talked about a little bit about

[00:02:30] Speaker 02:
on the separate possible unadjudicated claim 2005.

[00:02:35] Speaker 02:
Now, if that's the right way to think about it, then why isn't it right that issue preclusion indeed readily applies to the 2007 unadjudicated claim?

[00:02:49] Speaker 02:
Because that had never been presented to the board.

[00:02:52] Speaker 02:
But then it gets harder.

[00:02:55] Speaker 02:
about whether issued preclusion applies for the idea of the assertion that there was a March 2005 unnoticed case.

[00:03:07] Speaker 02:
There's a lot of evidence to that.

[00:03:09] Speaker 01:
Yes.

[00:03:11] Speaker 01:
And I think that does encapsulate the dilemma of the lower court making the determination on issued preclusions because

[00:03:23] Speaker 02:
Issue exhaustion.

[00:03:25] Speaker 01:
I'm sorry.

[00:03:25] Speaker 01:
Issue exhaustion.

[00:03:26] Speaker 01:
I'm sorry.

[00:03:29] Speaker 01:
Based upon some conflicting descriptions within this court's case law, but also the question of the precision of what we're talking about here versus an issue versus an argument.

[00:03:48] Speaker 01:
Underpinning is whether something is or isn't a new argument.

[00:03:55] Speaker 02:
It is hard.

[00:03:56] Speaker 02:
That's why I guess I've translated this into its component parts.

[00:04:01] Speaker 02:
Well, into are you asserting that there was an unadjudicated claim?

[00:04:07] Speaker 02:
Because that's the only way I can see how you get the effective date back.

[00:04:11] Speaker 02:
You don't have a CUE.

[00:04:13] Speaker 02:
you need an unadjudicated claim.

[00:04:15] Speaker 01:
That's correct.

[00:04:15] Speaker 02:
It seems to me that saying that there was a 2005 unadjudicated claim is a different issue from saying that there was a 2007 unadjudicated claim.

[00:04:32] Speaker 01:
Let me try approaching it this way.

[00:04:35] Speaker 01:
To me it is easy to understand in the context of Q because Q is a specific pleading prerequisite.

[00:04:45] Speaker 01:
You must specifically allege your basis.

[00:04:49] Speaker 01:
There is no corresponding pleading requirement for asserting an entitlement to an earlier effective date.

[00:04:59] Speaker 01:
So in the context of the

[00:05:01] Speaker 01:
broad spectrum of earlier effective date, we believe that it is inappropriate to use this rule of law to constrain an appellant from being able to present any argument that is supported by evidence in the record.

[00:05:21] Speaker 01:
because there is no burden on the part of Mr. Beck to have presented arguments.

[00:05:28] Speaker 01:
To the contrary, Congress has imposed the burden on the board to review all of the evidence and all applicable provisions, excuse me, all potentially applicable provisions of law and regulation for which pending claim

[00:05:44] Speaker 01:
individually or multiple, would apply.

[00:05:49] Speaker 01:
And that simply didn't happen here.

[00:05:51] Speaker 01:
And that was the error of law that was being presented by Mr. Beck in his appeal to the Veterans Court.

[00:06:00] Speaker 01:
It is true that if you wish to segregate these and say below there was not a presentation on the issue of both

[00:06:13] Speaker 01:
pending claims, that is a correct statement.

[00:06:16] Speaker 01:
But does that constitute a basis to deny Mr. Beck the right to judicial review of the board's decision to determine whether the board acted in compliance with its 7104A duty?

[00:06:32] Speaker 01:
That seems to us to be the difference between what is proper in excluding or precluding

[00:06:41] Speaker 01:
and denying judicial review and clearly the result here is he didn't get reviewed the arguments that he presented because they were characterized by the lower court as being new arguments.

[00:06:57] Speaker 01:
They are not new arguments because the overarching argument was only effective date.

[00:07:03] Speaker 01:
They were new issues about what constituted an earlier effective date or the right to an earlier effective date, which should have been considered by the Veterans Court on the merits as opposed to exercising what it referred to

[00:07:20] Speaker 01:
as its discretion in the interest of judicial efficiency to not consider those issues.

[00:07:28] Speaker 01:
Because all this does is to recycle this back for another presentation, particularly available now under the AMA, to present this all over again.

[00:07:39] Speaker 01:
and it doesn't yet judicial resolution the issue of earlier effective it only forces the veteran to go back and presented a new in a but more precise leading conference part of the premise of the entire issue exhaustion doctor

[00:08:05] Speaker 03:
There are certain things that you're not going to be allowed to present for the first time to the Veterans Court.

[00:08:13] Speaker 03:
There are things that really should have been presented for the first time to the board or to the VA in some capacity before raising it to the Veterans Court.

[00:08:26] Speaker 03:
So I guess my point is if we take your argument too far, it would eliminate the issue exhaustion principle.

[00:08:35] Speaker 01:
well don't let me hold you back from doing but having said that i'd believe that the premise for the constraint upon the veterans court was based upon and assert that it conclusion by this court that there was a pleading requirement

[00:08:56] Speaker 01:
uh... in the eight regulations wrote relative to the a nine under the legacy system requiring the identification of the issue no longer exists under the a m a

[00:09:12] Speaker 01:
And so as a consequence, that underpinning for why the Veterans Court should be constrained does not any longer exist in VA regulation.

[00:09:24] Speaker 01:
And therefore, it seems to me that without that underpinning, that what we are suggesting is that it is not appropriate to have issue exhaustion, or excuse me, issue preclusion, whatever my terminology is, I apologize.

[00:09:39] Speaker 01:
uh... in the context of a non adversarial systems in which congress has expressedly imposed a burden on the board of veterans appeals to consider all evidence of record and all potentially applicable provisions of law and regulation in order to arrive at a non adversarial resolution as to the entitlement of the benefit and the benefit here is an earlier effects whether it is on the basis of one

[00:10:08] Speaker 01:
pending claim or multiple pending claims or some other theory that maybe was not fully explored, presented by the veteran in a non-adversarial system.

[00:10:21] Speaker 01:
I see that I'm going into my rebuttal time.

[00:10:23] Speaker 04:
I'd like to reserve the balance if that's possible.

[00:10:36] Speaker 00:
Yes your honor may I please the court.

[00:10:39] Speaker 00:
This court lacks jurisdiction to consider the Veterans Court application of issue exhaustion law to the facts of this case.

[00:10:46] Speaker 00:
All that happened here was that the Veterans Court determined

[00:10:49] Speaker 00:
that Mr. Beck was raising a legal argument for the first time before the Veterans Court.

[00:10:54] Speaker 00:
It applied the balancing test that this court has set forth in Magic Cook, Dickens, and several other cases, and simply decided not to consider the issue when balancing the interest of the veteran versus the interest of judicial efficiency.

[00:11:10] Speaker 00:
This court lacks jurisdiction to...

[00:11:15] Speaker 02:
The Bozeman case is one of the cases discussed here.

[00:11:19] Speaker 02:
And that is a result of an exercise of jurisdiction.

[00:11:24] Speaker 02:
And the result was to say there's actually a legal limit on issue exhaustion in a particular circumstance.

[00:11:34] Speaker 02:
Why would it not be a legal question for us to examine whether the Veterans Court applied

[00:11:58] Speaker 02:
composing terms.

[00:11:59] Speaker 02:
And I guess I'm thinking, in particular, there might be a distinction between the 2005 unadjudicated claim.

[00:12:08] Speaker 02:
And it might matter here, because even if it is the 2005 unadjudicated claim, a certain might well fall within those remits.

[00:12:20] Speaker 00:
Yes, so in Bozeman the court did exercise jurisdiction.

[00:12:25] Speaker 00:
The issue there was a little bit broader because it was about whether issue exhaustion could be applied to evidence already in the record versus a legal argument.

[00:12:40] Speaker 00:
And the court narrowly held that citation of record evidence in support of a legal argument that has been properly preserved for appeal that

[00:12:50] Speaker 00:
Issue exhaustion cannot be involved in that.

[00:12:53] Speaker 02:
I guess the thought that I'm trying to explore is whether that is a applicable description of the 2005 unasserted claim issue because the April 2005 treatment note, is that what it's been called, was in the record in support of an assertion claim.

[00:13:18] Speaker 02:
made to the board, namely, I should have a March 2005 effective date because there's a claim that I made for this and it's never been adjudicated.

[00:13:30] Speaker 02:
Why doesn't, and the Veterans Court treated the issue, applied issue exhaustion to that as well, right?

[00:13:41] Speaker 00:
I disagree on a little bit on that.

[00:13:45] Speaker 00:
I think that the 2005, yes, it was in the record as a piece of evidence, but what was new before the Veterans Court and what the Veterans Court focused on as the new thing was the Shea argument.

[00:13:59] Speaker 00:
The Veterans Court said we didn't say we're applying issue exhaustion not considering the 2005 claim at all, just that we're applying issue exhaustion to this Shea-based argument because the council failed to raise Shea before the board.

[00:14:17] Speaker 00:
So it is about a legal argument.

[00:14:20] Speaker 00:
And this court has distinguished legal argument versus the very narrow exception in Bozeman for citation of existing record evidence.

[00:14:30] Speaker 00:
We're not arguing that the Veterans Court couldn't have looked at that 2005 pension application filing.

[00:14:39] Speaker 00:
Certainly, they could have.

[00:14:41] Speaker 00:
that wouldn't even come under issue adoption because it clearly was mentioned before the board.

[00:14:45] Speaker 00:
That was the focus of Mr. Beck's argument before the board.

[00:14:49] Speaker 00:
So it's not that, it's that Mr. Beck first raised shea before the Veterans Court and the Veterans Court decided not to consider a legal argument, which this court has said in Scott and in Dickens, they use specifically that terminology.

[00:15:06] Speaker 00:
legal argument and that issue exhaustion can apply to new legal arguments before the batting score.

[00:15:15] Speaker 00:
That's the distinction that I would make.

[00:15:18] Speaker 00:
on the jurisdiction, that it's just a legal argument which this court has said issue exhaustion can apply.

[00:15:26] Speaker 00:
Bringing up Shea was a new legal argument.

[00:15:28] Speaker 00:
The Veterans Court looked at it.

[00:15:30] Speaker 00:
Applying issue exhaustion law that's been well established by this court, the Veterans Court said we shouldn't consider Shea in the first instance and accordingly from the board.

[00:15:47] Speaker 00:
But if the court does decide that it has jurisdiction to consider this issue, I do want to address a little bit this.

[00:15:58] Speaker 00:
unadjudicated unadjudicated claim.

[00:16:01] Speaker 00:
I know you mentioned that there was a difference between the 2005 which was clearly in the record the 2005 pension application which Mr. Beck was then arguing should have also been considered a service connection claim and then there's also this 2007 filing which is later mentioned and we would assert that yes these were basically two

[00:16:27] Speaker 00:
two different claims.

[00:16:28] Speaker 00:
Yes, they're both sort of fall under the umbrella of effective date, but they're two entirely different considerations.

[00:16:36] Speaker 00:
One would be arguing for a 2005 effective date based on this assertion that the pension claim should have also been considered a claim for service connection.

[00:16:48] Speaker 00:
That was certainly considered below.

[00:16:51] Speaker 00:
But then there's this new argument raised, I believe for the first time before the Veterans Court, that

[00:16:58] Speaker 00:
Um, that Shea required review also of this 2007 filing, which is, is a separate, entirely separate issue that was first raised before the Veterans Court.

[00:17:12] Speaker 00:
Now, could the Veterans Court, again, that filing would have been in the overall record, so filing itself could have been considered, but this argument based on Shea was a legal argument that the Veterans Court, in its discretion, certainly could have and chose to apply issue exhaustion to.

[00:17:36] Speaker 00:
I also want to address, too, just to be clear,

[00:17:41] Speaker 00:
what the Veterans Court did here because Mr. Beck's opening brief focuses a lot on the supposed expansion of issue-involved law to reasons or basis arguments, and he asserts that that's improper.

[00:17:59] Speaker 00:
But that's not actually what happened here.

[00:18:02] Speaker 00:
The Veterans Court, as I've said, simply saw

[00:18:07] Speaker 00:
Mr. Beck as raising Shea a legal argument for the first time before the Veterans Court.

[00:18:14] Speaker 00:
They never said that issue exhaustion applies to reasons or bases.

[00:18:19] Speaker 00:
That was not the basis of their decision.

[00:18:22] Speaker 00:
They viewed Shea as a new legal argument and said just basically applying this court's precedent that issue exhaustion could apply to Shea and chose not to.

[00:18:35] Speaker 00:
considered the Shea argument.

[00:18:37] Speaker 00:
So this case really has nothing to do about whether issue in the Washington law can, should apply in a reasons or basis situation.

[00:18:53] Speaker 00:
The court has no further questions.

[00:18:55] Speaker 02:
There's one thing that Mr. Carpenter said that maybe you can help me understand.

[00:19:01] Speaker 02:
I thought I heard him say something to the effect that something changed

[00:19:13] Speaker 02:
Modernization Act that knocks out some premise for issue exhaustion.

[00:19:22] Speaker 00:
Your Honor, I apologize.

[00:19:23] Speaker 00:
I'm not sure precisely what change he was referring to.

[00:19:25] Speaker 00:
That's not something that was referenced in either his opening brief or his reply brief.

[00:19:31] Speaker 00:
What distinction I would make is pro se versus counsel.

[00:19:36] Speaker 00:
There are

[00:19:37] Speaker 00:
Obviously sympathetic reading requirements when there's pro se, when a veteran is proceeding pro se, those do not apply in cases in which the veteran is represented by council.

[00:19:50] Speaker 00:
Here the veteran had been represented by a veteran service officer all the way from the beginning of everything we're talking about pre-2005 and had been represented by council before the board

[00:20:02] Speaker 00:
at the time that these effective date claims began.

[00:20:05] Speaker 00:
So council at that time chose specifically to make the effective date argument solely on the 2005 pension claim, arguing very specifically that the 2005 pension claims should have also been considered a claim for service connection.

[00:20:23] Speaker 00:
Council for whatever reason chose not to mention this other 2007 file.

[00:20:30] Speaker 00:
And the court needs to take into account that there are reasons why counsel may or may not make certain arguments and to consider just those arguments that have been presented, particularly in cases in which a veteran is represented by counsel.

[00:20:48] Speaker 03:
What should we think about as to the April 2005 note?

[00:20:52] Speaker 03:
Is that part of the March 2005 plan?

[00:20:56] Speaker 00:
As I understand it, it was filed with it or shortly after it.

[00:21:03] Speaker 00:
So certainly it was part of the record at the time that claim was considered.

[00:21:11] Speaker 00:
Whether that note actually says anything about depressive disorder is a bit questionable.

[00:21:19] Speaker 00:
The court should not delve deep into the facts here, but if you look at

[00:21:24] Speaker 00:
The appendix on page 147, the treatment note talks about a history of in-service stressors.

[00:21:30] Speaker 00:
It talks about substance abuse, but there's no real actual reference to depressive disorder.

[00:21:37] Speaker 00:
So to the extent it was in the record, it's not evident that it supports it.

[00:21:43] Speaker 04:
What's the effect of that?

[00:21:46] Speaker 04:
That the 2005 treatment note was mentioned by the petitioner?

[00:21:53] Speaker 04:
In the brief?

[00:21:56] Speaker 00:
In that it was mentioned in the brief?

[00:21:58] Speaker 00:
I mean, as this court held in Bozeman, citation to something that was in the record can be brought up for the first time before the Veterans Court, so that's...

[00:22:10] Speaker 00:
there's no problem with mentioning that or saying that it was in the record under 7104d the board required to consider all material issues of fact and lost it in it on the record so certainly if it was on the record it was on the record.

[00:22:27] Speaker 02:
With respect to the pension claim there's a

[00:22:32] Speaker 02:
Unless I'm looking at a regulation, 3.151A, which says a claim by a veteran for pension may be considered to be a claim for compensation.

[00:22:43] Speaker 02:
Does that have any?

[00:22:46] Speaker 00:
It's a maybe.

[00:22:47] Speaker 00:
It doesn't have to be, but it's a maybe.

[00:22:49] Speaker 00:
I'm sorry to interrupt.

[00:22:50] Speaker 02:
No, OK.

[00:22:51] Speaker 00:
It does not have to be, and the court addressed that in its decision and said that yes, it did recognize the existence of that regulation, but that doesn't always have to consider a pension claim as a service-connected disability claim.

[00:23:09] Speaker 00:
And in this case, the board goes through all the reasons why this didn't appear to be a service connection claim to check the box just for pension.

[00:23:17] Speaker 00:
There was an attachment form, I think part D, that just says, pension didn't fill out the attachment for compensation, all those things.

[00:23:25] Speaker 00:
So the board did consider that and determine that.

[00:23:29] Speaker 00:
But maybe in this case, Ellen, no, because it seemed fairly obvious to the board that it was just a pension claim.

[00:23:39] Speaker 00:
Thank you.

[00:23:48] Speaker 01:
Judge Serrano, if I can address the question about the AMA, I was responding to Judge Chen's question about the underpinnings for the existing case law about issue exhaustion, and was explaining that it's my understanding that that case law is predicated upon a legacy requirement that in a VA form 9, there is a specific duty imposed by regulation

[00:24:14] Speaker 01:
upon an appellant to identify issues that they wish to have presented before the board.

[00:24:23] Speaker 01:
That doesn't exist anymore because the AMA eliminated the duplicity of an NOD and a VA-9 and the interim statement of the case.

[00:24:36] Speaker 02:
That's going from the RO to the board.

[00:24:40] Speaker 01:
Correct.

[00:24:41] Speaker 01:
Now that the appeal is taken directly to the board, there is no further action in terms of a statement of case with a need for a VA-9.

[00:24:52] Speaker 01:
So that's the reference that was being made.

[00:24:54] Speaker 01:
And no, that wasn't in the briefing.

[00:24:58] Speaker 01:
As regards to the jurisdictional question, I believe that

[00:25:03] Speaker 01:
What is overlooked by the government in their assertion is that Shea was applicable law at the time in which the board made its decision on effective date.

[00:25:15] Speaker 01:
And if Shea was applicable law, then the board had a statutory obligation as a potentially applicable provision of law to address it.

[00:25:25] Speaker 01:
And clearly, it was presented in relationship to the pension claim.

[00:25:30] Speaker 01:
And the focus on Shay as being the justification is simply exemplary of why this is legal error.

[00:25:42] Speaker 01:
It's not the question of whether Shay presented a new legal argument.

[00:25:47] Speaker 01:
It's a question of whether or not

[00:25:51] Speaker 01:
there was evidence in the record, which there was, that raised the question of a pending claim.

[00:25:58] Speaker 01:
And that evidence should have been allowed to be reviewed by the board for a final decision, excuse me, by the Veterans Court for a final decision so that Mr. Beck could have taken appeal on the denial of that.

[00:26:13] Speaker 01:
Instead, Mr. Beck was denied

[00:26:16] Speaker 01:
judicial review saying that, no, these were new arguments.

[00:26:21] Speaker 01:
And as new arguments, the court was not going to consider them.

[00:26:25] Speaker 01:
And there was an affirmance without consideration of what was statutorily obligated to have been addressed by the board.

[00:26:34] Speaker 01:
Now, on the merits, the government

[00:26:37] Speaker 01:
tells this court that there are two different claims here.

[00:26:42] Speaker 01:
I'm sorry, that is absolutely and categorically wrong.

[00:26:46] Speaker 01:
There's one claim, a claim for an earlier effective date.

[00:26:51] Speaker 01:
There is no VA form for an effective date.

[00:26:55] Speaker 01:
You simply express disagreement with the effective data sign.

[00:26:59] Speaker 01:
There is no specific pleading requirement.

[00:27:02] Speaker 01:
Therefore, it is up to the board to develop evidence to substantiate the claim under 3.103A.

[00:27:11] Speaker 01:
to support the entitlement to an effective date.

[00:27:14] Speaker 01:
That didn't happen.

[00:27:16] Speaker 01:
That was a decision that was made on very narrow bases that rejected the presentation relative to the pending pension claim, and that should have been sufficient to allow for the Veterans Court to take jurisdiction, and it was an inappropriate

[00:27:36] Speaker 01:
legal decision by the Veterans Court to use issue exhaustion as the basis for the refusal to consider that issue.

[00:27:46] Speaker 01:
That issue should have been considered.

[00:27:48] Speaker 01:
There should have been a decision.

[00:27:49] Speaker 01:
This court should vacate the Veterans Court decision and remand with instructions to address that.

[00:27:56] Speaker 01:
That's it for the questions by this panel.

[00:27:57] Speaker 01:
I thank you very much for your time.