[00:00:00] Speaker 02:
Our next case is number 23, 1562, Cooke versus McDonough.

[00:00:05] Speaker 02:
Okay, Mr. Jeter.

[00:00:07] Speaker 04:
May it please the court, good morning.

[00:00:09] Speaker 04:
My name is Chris Jeter, along with my co-counsel Robert Legg.

[00:00:11] Speaker 04:
We represent Lewis Cooke, the appellant.

[00:00:14] Speaker 04:
This case really is about one word, finality.

[00:00:16] Speaker 04:
And the Veterans Court below erred when it failed to recognize the finality that attaches to board decisions that are not appealed throughout the claims process.

[00:00:24] Speaker 00:
Isn't this appeal really a factual dispute, though, over whether the 1976 disability is the same as the service-connected disability?

[00:00:33] Speaker 04:
No, Your Honor, it's not.

[00:00:34] Speaker 04:
And the reason I say that is because this Court has made it clear, and it sure has proven that material facts are not in dispute.

[00:00:40] Speaker 04:
Really, the question is, it turns on an issue of law that will hear the case.

[00:00:45] Speaker 04:
And in this case, not only are the facts not in dispute, there's really not even facts.

[00:00:48] Speaker 04:
There are three decisions.

[00:00:50] Speaker 02:
Well, but it doesn't seem as though that's correct because the VA is saying that the disability condition in 1976 and the disability condition later were different because the first one encompassed this nervous condition and the second one didn't.

[00:01:10] Speaker 04:
Right?

[00:01:11] Speaker 04:
Well, Your Honor, I would submit that that argument is foreclosed by the March 2020 board decision that gave the thyroid disability an earlier effective date to 1975.

[00:01:19] Speaker 04:
By giving an earlier effective date, it was essentially adjudicated that it was the same disability.

[00:01:24] Speaker 04:
Otherwise, it couldn't have been given an earlier effective date.

[00:01:27] Speaker 03:
But the later board and the Veterans Court found to the contrary.

[00:01:32] Speaker 03:
And we're reviewing that veterans court decision.

[00:01:36] Speaker 03:
If that factual determination that these are two different disabilities between the pension and the service-connected one is correct, and we can't review it, then the decision is correct, isn't it?

[00:01:51] Speaker 04:
Well, Your Honor, under 38 CFR 3.104, that disability rating was final once it was made in 1975.

[00:01:58] Speaker 02:
And the issue of- But if it's not the same disability determination, then the regulation doesn't apply.

[00:02:05] Speaker 04:
Respectfully, the March 2020 board decision essentially ended that question because it gave an earlier effective date to the thyroid in 1975.

[00:02:14] Speaker 04:
It had to be the same disability.

[00:02:15] Speaker 03:
I would also point out... No, it didn't.

[00:02:17] Speaker 03:
There were multiple disabilities for the...

[00:02:20] Speaker 03:
the pension benefit that resulted in the 60%.

[00:02:24] Speaker 03:
The thyroid was one of them.

[00:02:25] Speaker 03:
That's why it got all the way back to whatever date you're talking about.

[00:02:29] Speaker 03:
But it didn't have to mean that it was the exact same constellation of disabilities for both decisions.

[00:02:39] Speaker 03:
Why isn't it true that if the original pension benefits had the thyroid plus a mental condition that resulted in 60%,

[00:02:49] Speaker 03:
And the later rating said that thyroid, whichever rating we're going to give it, also dates back to that original thing, but didn't say anything about the mental, that they're the same thing.

[00:03:02] Speaker 03:
Of course, the thyroid alone dates back to that date, because that's what they said.

[00:03:08] Speaker 03:
But it's still a different rating, because the earlier one indisputably covered more than just the thyroid, right?

[00:03:17] Speaker 03:
Well, Your Honor, but the board in March 2020... Answer my question.

[00:03:20] Speaker 03:
The pension-related benefit was not based solely on the thyroid, right?

[00:03:26] Speaker 03:
That's a factual issue.

[00:03:28] Speaker 03:
Right.

[00:03:28] Speaker 03:
We can't review.

[00:03:29] Speaker 03:
And the board found that it did cover more than just the thyroid.

[00:03:33] Speaker 04:
But you're talking about the December 2021 board decision.

[00:03:36] Speaker 03:
Whatever date it is.

[00:03:37] Speaker 04:
But that was after the March 2020 board decision.

[00:03:39] Speaker 03:
But the March 20 decision did not say that the only disability rated in the 1976 was the thyroid, did it?

[00:03:50] Speaker 03:
No.

[00:03:50] Speaker 03:
It said the thyroid portion relates back.

[00:03:53] Speaker 03:
It didn't say anything about whether the thyroid was the only thing that was related.

[00:03:58] Speaker 03:
So how does that help your argument?

[00:03:59] Speaker 04:
Well, I would submit, Your Honor, that the March 2020 board

[00:04:02] Speaker 04:
Could it could have decided that it could have decided that there were two disabilities because this is they don't have to.

[00:04:08] Speaker 03:
They're talking about the thyroid.

[00:04:10] Speaker 03:
They weren't being asked to rate the mental disability were they.

[00:04:13] Speaker 04:
Well that was the only one that was mentioned in March 2020 was a thyroid disability.

[00:04:18] Speaker 04:
We have to assume that the board they're the medical experts that they considered

[00:04:21] Speaker 04:
all of these arguments, all of these facts, and they only listen.

[00:04:24] Speaker 03:
I mean, the evidence, or at least the description of all of this in the record, is that the thyroid is service-connected, but the mental disability that was covered in the original service, or the pension, sorry, I'm going to get my terms mixed up, was not service-connected.

[00:04:40] Speaker 03:
I'm sorry, you're asking this question again, I'm sorry.

[00:04:44] Speaker 03:
At least from what I see in the record, the VA has determined that that original pension benefit covered a thyroid condition and at least a mental condition.

[00:04:54] Speaker 03:
It might have been one other one.

[00:04:56] Speaker 03:
The thyroid has been found to be service-connected.

[00:04:58] Speaker 03:
The mental condition is never found to be service-connected.

[00:05:02] Speaker 03:
Right?

[00:05:02] Speaker 03:
That's there.

[00:05:04] Speaker 03:
Correct.

[00:05:04] Speaker 03:
And so when they're trying to rate the thyroid condition as a loan, that's never been rated at 60%.

[00:05:15] Speaker 03:
The original service-connected pension-related benefit was not based solely on a thyroid.

[00:05:19] Speaker 03:
It was based on a thyroid-plus-mental condition that gets you to 60.

[00:05:25] Speaker 04:
Again, I would just admit that that isn't in the record in March 2020.

[00:05:28] Speaker 04:
It only talks about a thyroid.

[00:05:29] Speaker 04:
And that thyroid was given 60% in 1975.

[00:05:33] Speaker 02:
But in 2020, what they determined was that the earlier claim included thyroid.

[00:05:38] Speaker 02:
It didn't determine that the earlier claim was limited to thyroid.

[00:05:43] Speaker 02:
It really didn't address the question that we're dealing with now, and that is whether the whole range of disabilities in 1976 was the same as we're dealing with now.

[00:05:58] Speaker 04:
Well, there's only one rating code.

[00:06:01] Speaker 04:
whether it's non-service-connected or service-connected.

[00:06:03] Speaker 04:
There's only one rating code for the disability.

[00:06:05] Speaker 04:
So by being given a 60% rating in 1975 and then being given an earlier effective date in 2020, it's an acknowledgment that it was the same disability.

[00:06:14] Speaker 04:
That's our position.

[00:06:15] Speaker 00:
So counsel, was Mr. Cook ever service-connected for a nervous condition or a psychiatric condition?

[00:06:20] Speaker 04:
No.

[00:06:21] Speaker 04:
He was not.

[00:06:23] Speaker 04:
But our position is that the December 2021 decision

[00:06:27] Speaker 04:
did not respect the finality that should have attached the March 2020 decision, which gave an earlier effective date to the thyroid back in 1975, which has to acknowledge it's the same disability, and it should be warranted the same percentage.

[00:06:39] Speaker 03:
Yeah, it's the same thyroid disability that was part of the constellation of benefits or disabilities for the service connection one.

[00:06:46] Speaker 03:
But it's not completely coextensive.

[00:06:50] Speaker 03:
There were other disabilities rated under that 60% service.

[00:06:55] Speaker 03:
So the fact that you can date

[00:06:57] Speaker 03:
One portion of it back to 1976 doesn't mean it gets the same rating.

[00:07:03] Speaker 03:
It just gets the same effective date.

[00:07:05] Speaker 03:
And you still have to show that the thyroid alone is 60% disabling.

[00:07:11] Speaker 03:
Because VA has never determined that the thyroid alone is 60% disabling, has it?

[00:07:17] Speaker 03:
It didn't do it in the service-connected pension.

[00:07:20] Speaker 03:
It didn't do it in that 2020 decision.

[00:07:22] Speaker 03:
And it certainly didn't do it in its later decision.

[00:07:25] Speaker 04:
I'll acknowledge that the March 2020 decision only talks about the filing.

[00:07:28] Speaker 03:
Yes.

[00:07:29] Speaker 03:
But it doesn't say it's rated at 60%.

[00:07:30] Speaker 03:
It just gives you an effective date back then.

[00:07:33] Speaker 04:
That's right.

[00:07:35] Speaker 04:
But our argument is that by being retroactive to 1975.

[00:07:38] Speaker 03:
Well, there's a difference between effective date and the rate of disablement.

[00:07:44] Speaker 03:
That's not even a word.

[00:07:45] Speaker 03:
Sorry.

[00:07:46] Speaker 03:
The table of ratings, right?

[00:07:49] Speaker 03:
You acknowledge that.

[00:07:50] Speaker 03:
You can get an effective date and it can go up or down.

[00:07:54] Speaker 03:
So even if it had been 60%, they could have shown that it had decreased.

[00:08:01] Speaker 03:
Obviously, there's different regulations and stuff involved.

[00:08:03] Speaker 03:
We're not going to get into that.

[00:08:05] Speaker 03:
But they had never determined that the thyroid condition alone was 60%.

[00:08:10] Speaker 04:
Well, the March 2020 position is silent.

[00:08:14] Speaker 04:
I agree that it's silent on the other disabilities.

[00:08:16] Speaker 03:
It's also silent on whether the thyroid condition is

[00:08:22] Speaker 03:
Entitled to a 60% rate.

[00:08:24] Speaker 03:
It's true.

[00:08:24] Speaker 03:
That's true.

[00:08:24] Speaker 04:
It does not discuss that but but by being by giving an early effective date Our argument is that it's at 60% because that's what it was in 1975.

[00:08:32] Speaker 03:
I mean the marks, but it's not the same disability no, no, no answer this if there's a factual dispute that a Legitimate factual dispute and you think the only does I don't know how you can actually dispute that

[00:08:46] Speaker 03:
that the disability in the service-connected pension was not a multiple set of conditions.

[00:08:53] Speaker 03:
It's on the record.

[00:08:54] Speaker 03:
So they're different conditions.

[00:08:57] Speaker 03:
One is two or three conditions.

[00:09:00] Speaker 03:
And the thyroid alone, which is now service-connected, it's just different.

[00:09:04] Speaker 03:
If that's a factual dispute, we don't have jurisdiction, right?

[00:09:07] Speaker 03:
I agree with that.

[00:09:09] Speaker 03:
OK.

[00:09:09] Speaker 04:
Yeah, I agree with that.

[00:09:12] Speaker 04:
But again, just going back to the three decisions that are important here, the 1975 decision, which gave the initial 60%.

[00:09:19] Speaker 03:
I mean, you would have a better argument if that 2020 decision said the 60% rating given in 1976 is retroactive to 1976, right?

[00:09:31] Speaker 03:
Then they would have explicitly said the thyroid condition and the 60% rating was retroactive.

[00:09:36] Speaker 03:
But they didn't say that.

[00:09:37] Speaker 03:
They just said the effective date is 1976, not what the rating was.

[00:09:42] Speaker 03:
Is that correct?

[00:09:42] Speaker 03:
Yeah, that's correct.

[00:09:43] Speaker 03:
That's correct.

[00:09:44] Speaker 04:
So our argument essentially is in the March 2024 decision, those issues were considered and could have been listed.

[00:09:51] Speaker 04:
But by just simply giving you an effective date, it sets it to 60% disability.

[00:09:56] Speaker 04:
So if you have further questions, I'll reserve them.

[00:09:59] Speaker 02:
OK.

[00:09:59] Speaker 02:
Thank you.

[00:10:01] Speaker 02:
Ms.

[00:10:01] Speaker 02:
Welch?

[00:10:09] Speaker 01:
Good morning, and may it please the court.

[00:10:11] Speaker 01:
Your questions hit at the only issue in this case.

[00:10:14] Speaker 01:
It deals with a factual dispute over which this court lacks jurisdiction.

[00:10:19] Speaker 03:
Is there any legal import to the fact that the 2020 decision didn't affect the reading?

[00:10:27] Speaker 03:
It just went to the effective date?

[00:10:29] Speaker 03:
I mean, is there some kind of waiver or something on the part of the VA when it's talking about the effective date for this thyroid condition?

[00:10:37] Speaker 01:
No, Your Honor.

[00:10:38] Speaker 01:
Effective date decisions are different than disability percentage determinations.

[00:10:41] Speaker 01:
It's the upstream and downstream.

[00:10:43] Speaker 01:
The effective date is the upstream, and then the disability.

[00:10:46] Speaker 03:
Is there a reason that didn't have a rating decision with it, too?

[00:10:49] Speaker 01:
Most likely because they were only asking at the time for service connection.

[00:10:54] Speaker 01:
That would be usually you would do the effective date, and then you would do the percent disability related to that afterwards, because they're, again, upstream and downstream issues.

[00:11:03] Speaker 01:
And I also wanted to specifically point out the fact that

[00:11:07] Speaker 01:
Because these effective date decisions are different than disability decisions, the silence, it means nothing.

[00:11:13] Speaker 03:
What if hypothetically, and I know that's not the case here, but what if hypothetically the only disability considered in the pension context was the thyroid, and then it had been rated as?

[00:11:28] Speaker 03:
60%.

[00:11:29] Speaker 03:
Would that then be binding with the 2020 decision, because it was the same disability, and by finding that that disability had an effective date, service-connected date, back to 1976, would you have been bound by the 60% then?

[00:11:44] Speaker 01:
It is likely, in that hypothetical, if we don't have the specific facts we do here, it is likely that that would be connected.

[00:11:49] Speaker 02:
But here, in... I thought your argument was that the regulation didn't apply.

[00:11:56] Speaker 02:
because it was a pension disability determination rather than the kind of disability determination we're dealing with here later.

[00:12:05] Speaker 01:
So the argument would be that partially that because it was a pension rating, it wouldn't

[00:12:14] Speaker 01:
Let me step back.

[00:12:16] Speaker 01:
In this case, they used that request for pension.

[00:12:19] Speaker 01:
And they looked back and they said, it's possible that this could be construed as a compensation rating because we're being most beneficial to the veteran.

[00:12:26] Speaker 01:
And it could be construed as compensation.

[00:12:28] Speaker 01:
So therefore, when you go back, that would then have a finality, as they are being more attached to it, specifically because they can go back and say, oh, this is also construed as compensation.

[00:12:39] Speaker 01:
So in that hypothetical, for instance, the compensation

[00:12:43] Speaker 01:
And they went back and found compensation tied to that.

[00:12:46] Speaker 02:
I'm confused.

[00:12:47] Speaker 02:
Let's assume that it was the same disability in 76 and later.

[00:12:52] Speaker 02:
And I know the Barron's Court decided the contrary, or arguing that that's a fact issue and we can't review it.

[00:13:00] Speaker 02:
I understand that.

[00:13:01] Speaker 02:
But let's assume that it were the same disability.

[00:13:04] Speaker 02:
Just the one, the thyroid condition, was the sole basis for the 60% rating in 1976.

[00:13:11] Speaker 02:
Do you agree that under those circumstances that it's subject then to the regulation that it can't be changed except under those limited circumstances?

[00:13:20] Speaker 01:
I would agree if it was the same exact condition and there wasn't any sort of break in the middle.

[00:13:27] Speaker 01:
The issue here is there was a break in the middle if it wasn't connected.

[00:13:32] Speaker 01:
service-connected compensation benefits back in 76, if there was a sort of break.

[00:13:37] Speaker 01:
But if there was a break.

[00:13:39] Speaker 03:
Is your answer dependent upon the fact that you could construe that 76 request as a claim for both compensation and pension?

[00:13:47] Speaker 01:
Yes, Your Honor.

[00:13:48] Speaker 01:
Yes.

[00:13:49] Speaker 01:
In this case, where they went back and they construed it as a compensation.

[00:13:53] Speaker 03:
Because then it would be an unadjudicated pending claim.

[00:13:57] Speaker 03:
Yes.

[00:13:57] Speaker 03:
And you would get the effective date all the way back to 76.

[00:13:59] Speaker 01:
Correct.

[00:13:59] Speaker 01:
Yes, Your Honor.

[00:14:00] Speaker 02:
But if that's true, I don't understand the significance of the break.

[00:14:05] Speaker 02:
I mean, if it was a service-connected disability claim, there couldn't be a break.

[00:14:11] Speaker 02:
There was no income limitation on that.

[00:14:13] Speaker 01:
Correct.

[00:14:14] Speaker 01:
Yes.

[00:14:14] Speaker 01:
Yes.

[00:14:14] Speaker 01:
And that would be the delineation.

[00:14:16] Speaker 01:
Yes.

[00:14:16] Speaker 01:
That would only be if you were talking about pension.

[00:14:18] Speaker 01:
But if it was compensation, there wouldn't have been a break, because that would be tied to income.

[00:14:22] Speaker 01:
Correct, Your Honor.

[00:14:27] Speaker 01:
OK.

[00:14:27] Speaker 01:
Is there a way I could delineate that better?

[00:14:29] Speaker 02:
We don't need to reach itself.

[00:14:32] Speaker 03:
I don't think we understand why the break you were proposing has any difference.

[00:14:36] Speaker 01:
It doesn't.

[00:14:36] Speaker 01:
It doesn't.

[00:14:37] Speaker 01:
No, it doesn't, Your Honor.

[00:14:38] Speaker 01:
For compensation, it doesn't add any difference.

[00:14:40] Speaker 03:
I apologize.

[00:14:41] Speaker 03:
I'm going to ask you one more, I think, harder hypothetical.

[00:14:44] Speaker 03:
What if the claim in 1976 had been specifically and unambiguously only a claim for pension benefits, but it was only for thyroid and it was awarded 60%?

[00:14:58] Speaker 03:
And then we get the whole string of events coming along he goes up and down and income so it gets taken away or not and then somehow in 2000 they say This thyroid connection is actually service-connected There's no under the hypothetical.

[00:15:14] Speaker 03:
There is no pending under adjudicated claim for compensation is there a way then to still date it back to 1976

[00:15:24] Speaker 03:
if it becomes clear later that the condition is exactly the same condition and should have been given 60% in 1976?

[00:15:33] Speaker 01:
If it's the same exact condition and they look back at the facts and they do decide that it could have qualified for compensation benefits, then yes.

[00:15:42] Speaker 03:
Is that because even if the veteran had unambiguously described it as

[00:15:47] Speaker 03:
a pension request, they can still construe it.

[00:15:50] Speaker 01:
Yes.

[00:15:51] Speaker 01:
Yes.

[00:15:51] Speaker 01:
To be the most beneficial to the veteran, especially if it's just the veteran, no council.

[00:15:57] Speaker 01:
If they're saying specifically, oh, we only want pension, we're trying to help the veteran out in terms of deciding that it would be a compensation goal.

[00:16:04] Speaker 02:
The result of that analysis is the compensation never should have stopped, right?

[00:16:14] Speaker 01:
Yes.

[00:16:15] Speaker 01:
Yes.

[00:16:16] Speaker 01:
The compensation wouldn't have stopped, because it wouldn't have been tied to the income, and there wouldn't have been a break.

[00:16:23] Speaker 03:
And did he get retroactive benefits for the thyroid condition at the rate they determined it was disabled?

[00:16:30] Speaker 01:
At the 10%.

[00:16:31] Speaker 01:
And then in, I believe it was 2017, it goes up to 30% when the VA changed their rating schedule.

[00:16:36] Speaker 01:
Yes, he did.

[00:16:37] Speaker 03:
So he did get a retroactive award in 1976, just not the 60%.

[00:16:41] Speaker 03:
Correct.

[00:16:41] Speaker 01:
Yes, Your Honor.

[00:16:42] Speaker 01:
It would be the 10%.

[00:16:44] Speaker 02:
I thought 10% was not compensable.

[00:16:49] Speaker 01:
I believe it was compensable.

[00:16:52] Speaker 02:
Never mind.

[00:16:54] Speaker 02:
Anything further?

[00:16:55] Speaker 01:
No, Your Honor, if you have no further questions.

[00:16:58] Speaker 01:
The court should dismiss this appeal for a lack of jurisdiction.

[00:17:01] Speaker 02:
OK, thank you.

[00:17:07] Speaker 04:
Thank you, Mayor.

[00:17:08] Speaker 04:
I'll be brief.

[00:17:09] Speaker 04:
I'm not going to address the breaking payments, because I guess that court is not concerned about the breaking payments.

[00:17:14] Speaker 04:
I'll just reiterate briefly, if I can, that the March 2020 board decision in disability disposer here, that's where the multiple disability theory should have made its way.

[00:17:23] Speaker 04:
But the board only talked about one thyroid disability effective in 1975.

[00:17:28] Speaker 04:
Excuse me.

[00:17:30] Speaker 04:
My argument is that that rating from 1975, the fact of it means it's the same disability.

[00:17:35] Speaker 04:
So it should be given a 60% rating.

[00:17:37] Speaker 04:
So we ask that the court reverse the direction you give Mr. Cook 60%.

[00:17:44] Speaker 04:
service connector.

[00:17:44] Speaker 04:
Again, this is a case about finality.

[00:17:46] Speaker 04:
Once these disability percentages are made, they can't be undone.

[00:17:51] Speaker 04:
And that March 2020 would have been the time.

[00:17:54] Speaker 04:
And we have to assume that the board considered all these multiple disability theories and only came up with the thyroid.

[00:18:00] Speaker 04:
With that, if there are any further questions.

[00:18:04] Speaker 02:
OK.

[00:18:04] Speaker 02:
Thank you.

[00:18:04] Speaker 02:
Thank both counsel.

[00:18:05] Speaker 02:
The case is submitted.