[00:00:00] Speaker 02:
case for argument is 22-2179, Dean versus McDonough.

[00:00:07] Speaker 01:
Can I ask you a first question?

[00:00:08] Speaker 01:
I just want to know, how often does this happen that you argue two separate cases, one right after the other?

[00:00:15] Speaker 01:
It's happened to me on multiple occasions, unfortunately or fortunately, depending upon your point of view.

[00:00:26] Speaker 03:
May it please the court?

[00:00:27] Speaker 03:
Kenneth Carpenter appearing on behalf of Mr. Lester Dean.

[00:00:31] Speaker 03:
Mr. Dean presents a question of whether or not he did or did not receive a judicial review before the Veterans Court on the question that he presented.

[00:00:45] Speaker 03:
There is no dispute in this record that the Board of Veterans Appeals decision did not address the issue of entitlement to special monthly compensation.

[00:00:56] Speaker 03:
uh... case law uh... at least as characterized by the uh... veterans court uh... was the controlling case for excuse me was based upon the veterans court decision in robinson but the veterans court decision in robinson pertains to normal claim a claim for

[00:01:21] Speaker 03:
anything other than special monthly compensation.

[00:01:25] Speaker 03:
And why is that true?

[00:01:26] Speaker 03:
Because it has been the long standing policy of the VA that special monthly compensation issues do not require an application and they do not require a claim.

[00:01:39] Speaker 03:
They are raised by the Secretary's duty to assist to develop evidence.

[00:01:46] Speaker 03:
The Veterans Court, in one of its earliest decisions in Akles, made clear that the Veterans Court was not even going to look at the case in which the VA had not undertaken that inquiry.

[00:01:59] Speaker 03:
What happened in this case was that the Veterans Court

[00:02:03] Speaker 03:
based upon Robinson, imposed the duty on Mr. Dean to identify the evidence.

[00:02:13] Speaker 03:
In the context of special monthly compensation, it is the VA's duty, and on review, it is the board's duty to make that inquiry.

[00:02:25] Speaker 03:
And the case law that was relied upon ended up with- Well, I guess I don't understand that you frame this issue as

[00:02:32] Speaker 02:
he didn't get judicial review.

[00:02:35] Speaker 02:
And that's, I mean, the CAVC, the board talked about it.

[00:02:40] Speaker 02:
The CAVC talked about what the board did and said the board was right.

[00:02:46] Speaker 02:
And the appellant, because the appellant has appointed any of

[00:02:52] Speaker 02:
based on PTSD.

[00:02:56] Speaker 02:
So I guess I don't understand why you're saying there wasn't judicial review.

[00:03:01] Speaker 02:
Are you saying because they said he wasn't entitled and they should have said he was entitled?

[00:03:07] Speaker 03:
I'm saying he was entitled to a decision from the Veterans Court on the question of law presented.

[00:03:15] Speaker 03:
Was there or was there not a responsibility on the part of the board to make the ACALS inquiry as to whether or not the evidence of record supported the entitlement to a... And the CABC answered the question, the negative.

[00:03:36] Speaker 01:
Are you saying they didn't answer the question because they framed it in terms of Mr. Dean did not show?

[00:03:44] Speaker 03:
Yes.

[00:03:45] Speaker 03:
And moreover, Your Honor.

[00:03:47] Speaker 01:
What if we interpret that as meaning the record does not show?

[00:03:52] Speaker 03:
If I could just get back to Judge Proof's question for a moment.

[00:03:56] Speaker 03:
The Board of Veterans Appeals decision, which is in the record at 40, Appendix 40,

[00:04:08] Speaker 03:
It did not address the issue of special monthly compensation.

[00:04:15] Speaker 03:
It did not address the issue of whether or not PTSD alone could have supported a TDIU rating to support the assignment of special monthly compensation under 1114S1.

[00:04:31] Speaker 03:
So that's why I say we didn't have judicial review because the issue we put before the Veterans Court was Mr. Dean's right as a matter of law to have the issue of special monthly compensation under 1114S1 examined.

[00:04:52] Speaker 03:
There was no examination by the board.

[00:04:55] Speaker 00:
That was an error of law.

[00:04:57] Speaker 00:
So your issue is you were entitled

[00:04:59] Speaker 03:
Review at the board you're not contesting that you did get the review you're asking for at the Veterans Court No, you're I'm saying because I didn't get because the board error by failing to address special monthly compensation based upon the evidence of record that raised it

[00:05:19] Speaker 03:
that when I asked the Veterans Court to find error, instead of finding error, they affirm.

[00:05:28] Speaker 03:
And all they affirm, I understand what they talk about.

[00:05:31] Speaker 00:
I'm sorry, in affirming, but you didn't like that decision on the merits, but the Veterans Court was conducting judicial review in reaching an affirmance decision, correct?

[00:05:43] Speaker 03:
well with all due respect your honor i do not believe they were at least as i understand judicial review as i understand judicial review the the court is reviewing the actions of the board in this case a vermin of error was a failure to act i'm sorry to interrupt it so that means what you asked the veterans court to do was to remand to the board and that was the only thing the veterans court could properly do

[00:06:10] Speaker 00:
Because all you really wanted was for the board to decide if you get SMC?

[00:06:16] Speaker 03:
Well, I was asking the court to find under its case law that the board was required

[00:06:24] Speaker 03:
to address this issue.

[00:06:26] Speaker 02:
And the board said it wasn't required under these circumstances to address it.

[00:06:31] Speaker 02:
And the CABC addressed it.

[00:06:32] Speaker 03:
Oh, I'm sorry.

[00:06:33] Speaker 03:
The board did not say that.

[00:06:35] Speaker 01:
But the Veterans Court said the board did not have to address it.

[00:06:40] Speaker 01:
That's correct.

[00:06:41] Speaker 01:
Now, just to clarify, was the issue presented to the board?

[00:06:45] Speaker 01:
Or is the argument that the board on its own should have considered SMC because they're obligated to do so?

[00:06:53] Speaker 03:
The latter.

[00:06:54] Speaker 01:
That's what I thought.

[00:06:55] Speaker 01:
Yes.

[00:06:56] Speaker 01:
And so in response to that, the Veterans Court said, no, there wasn't enough here to show that they were obligated to do so, so we're not going to read it.

[00:07:05] Speaker 03:
Why can't they do that?

[00:07:06] Speaker 03:
Because they relied on Robinson that imposes the burden on the veteran to point to that evidence.

[00:07:13] Speaker 03:
The reason that the Veterans Court affirmed was because the Veterans Court said that Mr. Dean had not pointed to the evidence.

[00:07:23] Speaker 01:
Where did they cite Robinson?

[00:07:26] Speaker 01:
Excuse me, at... And do they expressly say that Mr. Dean had the burden?

[00:07:43] Speaker 03:
They did, Your Honor.

[00:07:44] Speaker 03:
Let me find it here.

[00:07:45] Speaker 01:
Oh, I see.

[00:07:46] Speaker 01:
It's on page 8.

[00:07:48] Speaker 03:
Yes.

[00:07:49] Speaker 03:
Sorry.

[00:07:49] Speaker 03:
That's correct.

[00:07:51] Speaker 01:
But they're not citing a part of Robinson.

[00:07:54] Speaker 03:
Oh, I'm sorry.

[00:07:55] Speaker 03:
They do it earlier, Your Honor.

[00:07:56] Speaker 03:
It's at appendix page 6 when they're describing the law.

[00:08:06] Speaker 02:
and the first sentence says the board is required to consider all theories of entitlement the benefits either raised by the claimant or reasonably raised by the record and they cite their own problems they are saying under the circumstances in terms of what the rating was there was none coming up on the board to recently raise it on behalf of the veteran and the CABC said

[00:08:31] Speaker 02:
That's the case.

[00:08:32] Speaker 02:
Those are the circumstances.

[00:08:33] Speaker 02:
You may disagree with the answer.

[00:08:36] Speaker 02:
You may not like it.

[00:08:38] Speaker 02:
What you're fighting is you're saying under these circumstances,

[00:08:42] Speaker 02:
They were obligated to raise it on their own.

[00:08:44] Speaker 03:
No, Your Honor.

[00:08:45] Speaker 03:
I'm relying upon the Veterans Court's own case law.

[00:08:50] Speaker 03:
It's the Veterans Court's case law, beginning with Akles and then going to Bradley and then going to Bowie, that specifically ultimately address in Bradley and Bowie

[00:09:02] Speaker 03:
what the responsibility of the board's inquiry is, and in both Bradley and Bowie, in the same type of special monthly compensation, said that the case had to go back to the board to address the issue.

[00:09:16] Speaker 02:
Well, Bowie, I think, is close to this, but I think clearly distinguishable.

[00:09:21] Speaker 02:
Because there, they said the record had evidence to suggest that PTSD alone

[00:09:27] Speaker 02:
might have supported TBIU.

[00:09:29] Speaker 02:
And in this case, at least if it's the conclusion of the fact-finders of people in record or whatever, an issue which I doubt we have the authority to review, they thought there was not enough, there wasn't evidence in the record to suggest that PTSD alone would have supported TBIU.

[00:09:47] Speaker 03:
But there was evidence as a matter of law based upon the court's presidential decision in Bradley.

[00:09:53] Speaker 03:
The court's presidential decision in Bradley recognized that

[00:09:58] Speaker 03:
The veterans, or the rating of 70 percent for a psychiatric disability triggered the obligation to make that inquiry and remanded that issue back to the board to address in the first instance because the board did not address it.

[00:10:17] Speaker 03:
In Bowie, they clarified that when as here there is a grant of

[00:10:27] Speaker 03:
TDIU based upon multiple service-connected disabilities, that it's the obligation of the board to determine whether any combination, and you use the combination in Bradley, a PTSD rating of 70% requires that inquiry.

[00:10:46] Speaker 03:
Now, the Veterans Court can't make it.

[00:10:50] Speaker 01:
Sorry.

[00:10:51] Speaker 01:
I want to interrupt for a second.

[00:10:52] Speaker 01:
I just want to make sure I understand the implication of your argument, which would be that I guess the board in all of these cases would have to say, we consider it SMC, but it's not appropriate.

[00:11:04] Speaker 01:
In any circumstance where it's possible there might be some remote chance of being able to have SMC, where do you draw the line?

[00:11:12] Speaker 01:
I'm just curious.

[00:11:15] Speaker 03:
Well, Your Honor, quite candidly, the Veterans Court discusses that in its original case in Aigles and why it's incumbent in this system that the VA take that initiative to make that critical examination.

[00:11:31] Speaker 03:
but in Bradley they go a step further and they say that the evidence is already in the record when you've got one disability rated at 70 that then could be the basis for a single disability rated total to trigger the entitlement to special monthly compensation.

[00:11:54] Speaker 01:
It feels like you're relying on law that already exists and just feels that it wasn't applied properly in this case.

[00:12:00] Speaker 03:
Which is precisely why I frame this in terms of having been denied judicial review.

[00:12:07] Speaker 03:
I presented a question of law that raised the question of whether or not the board did or did not err in failing to apply.

[00:12:17] Speaker 03:
The answer I got for my appeal was that Mr. Dean had not pointed

[00:12:24] Speaker 03:
to the evidence in the record.

[00:12:27] Speaker 03:
That wasn't Mr. Dean's responsibility in the context of special monthly compensation.

[00:12:33] Speaker 00:
Didn't you also get the answer that the SMC issue is not reasonably raised by the record?

[00:12:39] Speaker 00:
Didn't the Veterans Court also say that?

[00:12:41] Speaker 03:
And that is an error of law, Your Honor.

[00:12:44] Speaker 03:
It is completely inconsistent with their holding in Bradley.

[00:12:47] Speaker 00:
Why isn't that a question of application of settled law

[00:12:51] Speaker 03:
to facts that we don't have jurisdiction over whether whether this particular record reasonably raises the possibility of essence but with respect your honor that wasn't the issue that i presented to the veterans court now clearly this is a unique situation in which we have a board decision that is being appealed on the basis of what they failed to do and to me if i'd file an appeal and present that issue then i am entitled to a

[00:13:21] Speaker 03:
Yes or no answer.

[00:13:22] Speaker 03:
They did or they didn't have an obligation to do it.

[00:13:26] Speaker 03:
The board have an obligation.

[00:13:28] Speaker 00:
I'm sorry, I thought the Veterans Court clearly said the board did not have an obligation.

[00:13:34] Speaker 00:
You don't like that answer, but isn't that the answer you got from the Veterans Court?

[00:13:38] Speaker 03:
I don't believe that's the answer that I got, Turner.

[00:13:57] Speaker 04:
Good morning, Your Honor.

[00:13:57] Speaker 04:
Then may it please the court.

[00:13:59] Speaker 04:
This court lacks jurisdiction to consider this case, because at bottom, what Mr. Dean is doing is challenging the factual determination that nothing in the record reasonably raised his eligibility for TDIU based on a single case.

[00:14:13] Speaker 02:
Well, can you just talk about the cases he's talked about and included in this group, the Akers and maybe Bradley, and how this differs from Bradley?

[00:14:22] Speaker 04:
Sure, I mean we don't disagree with Akers nor Bradley.

[00:14:27] Speaker 04:
Bradley said that SMC has to be considered even if there's no separate claim raised specifying that the veteran is seeking SMC.

[00:14:34] Speaker 04:
We certainly agree with that.

[00:14:36] Speaker 02:
So what's the threshold for when they have to look at it?

[00:14:41] Speaker 04:
The threshold comes from Robinson.

[00:14:44] Speaker 04:
The board must adjudicate claims that are reasonably raised by the record.

[00:14:49] Speaker 04:
Robinson did not specify that that had to do with ordinary claims versus SMC claims, so there's no difference.

[00:14:55] Speaker 04:
The threshold is that the claims have to be reasonably raised by the record.

[00:15:01] Speaker 04:
All that happened here was that the Veterans Court looked at this and said the claims were not reasonably raised by the record.

[00:15:11] Speaker 04:
A 70% rating alone could be the basis for a TDI you claim if you show unemployability.

[00:15:22] Speaker 02:
If you look at... Okay, so what's the difference between the Baxiren and Bradley in terms of... I'm just trying to understand what this threshold is of reasonably great.

[00:15:33] Speaker 04:
So in Bradley, we...

[00:15:46] Speaker 04:
I was not as familiar with Bradley, but I know in the Bowie case for the Veterans Court, there was a distinction there.

[00:15:55] Speaker 04:
And Bowie goes farther than Bradley.

[00:15:57] Speaker 04:
But even if you're looking at Bowie, in that case, there was a distinction because there had been evidence in the record that the PTSD in this Veterans case was

[00:16:13] Speaker 04:
made the veteran unemployed, but there was an issue of unemployability.

[00:16:16] Speaker 04:
To distinguish that here, Mr. Dean did not point to anything in the record that showed that his TDIU, that his PTSD alive.

[00:16:29] Speaker 02:
One of the questions here is, who has to comb the record looking for that evidence?

[00:16:34] Speaker 02:
You're saying that that evidence could be relevant.

[00:16:38] Speaker 02:
And is the distinction that Imbui, I don't know if Imbui, the board itself raised it or the veteran raised it.

[00:16:47] Speaker 02:
Is that what the distinction is?

[00:16:48] Speaker 02:
Like, who has the obligation to comb the record to see if there's any potential unemployability there?

[00:16:55] Speaker 04:
Right, and we would agree with Mr. Dean that before the board, the board does have an obligation to comb the record for SMC if it's at all reasonably raised.

[00:17:08] Speaker 04:
If there's any evidence in the record of unemployability, if in addition to that evidence of unemployability, if there's some mathematical combination of the disabilities that could

[00:17:21] Speaker 04:
lead to an SMC rating then the board would be obligated to consider that absent any claim from the veterans saying I'm asking for SMC that's not required.

[00:17:34] Speaker 01:
So your view is that the board didn't have to comb the record because Mr. Dean on appeal to try to show that the board should have combed the record wasn't able to show that the evidence existed to

[00:17:47] Speaker 01:
Is that what your position is?

[00:17:48] Speaker 04:
Right, because on appeal to the veterans for this... That seems a little weird, right?

[00:17:53] Speaker 01:
I mean, in a way to say that because the board would have had the duty to comb, we're going to go ahead and if they don't follow that duty, we're going to shift the burden onto the veteran?

[00:18:05] Speaker 04:
It's because the system changes a bit at the Veterans Court.

[00:18:10] Speaker 04:
And the board and all proceedings before the VA, it's a non-adversarial system.

[00:18:16] Speaker 04:
But when we get to the Veterans Court, it's a court of lots, a court of an appeal very similar to this court.

[00:18:22] Speaker 04:
And there are rules in terms of the burden of persuasion before that court.

[00:18:29] Speaker 04:
Once Mr. Dean decided to appeal the board's decision to the Veterans Court, because he was then before the Veterans Court, he had the burden of persuasion to explain his... Burden of production and burden of persuasion, right?

[00:18:44] Speaker 04:
Yes.

[00:18:44] Speaker 04:
So the Veterans Court rules, in fact, rule 28A5 of the Veterans Court, which is about the contents of the briefs, says it has to include an argument

[00:18:54] Speaker 04:
containing the appellant's contentions with respect to the issues and the reasons for those contentions.

[00:19:00] Speaker 04:
So here, he's kind of contending.

[00:19:02] Speaker 04:
He's making a contention that the board earned, but he's not supporting that with the reason why.

[00:19:08] Speaker 04:
He's not saying there was evidence of that.

[00:19:12] Speaker 04:
He has to explain why there was essentially yes.

[00:19:15] Speaker 02:
So is that what this case comes down to, the prejudicial error?

[00:19:20] Speaker 02:
I mean, even if the board, so your prejudicial error would suggest that even if the board were required to comb the record, and it didn't, when he appeals that decision, he has to point to something that they missed, that they missed because they didn't comb the record.

[00:19:38] Speaker 04:
Is that... Essentially, yes.

[00:19:40] Speaker 04:
I would agree with that.

[00:19:41] Speaker 04:
That there has to, he has to, before the Veterans Court, he has to point to something that

[00:19:49] Speaker 04:
was reasonably raised by the record that the board missed, that the board should have seen in the record that would have pointed to an eligibility for TDIU based on a single disability that then would have pointed to SMT.

[00:20:01] Speaker 02:
So is that really what the law is?

[00:20:03] Speaker 02:
I mean, we have plenty of things in the veteran space, including the duty to assist.

[00:20:09] Speaker 02:
I really don't know the answer to this.

[00:20:12] Speaker 02:
If you come in and you challenge that they didn't follow the duty to assist,

[00:20:16] Speaker 02:
Do you have to show that it was harmful error, that the assistance would have led to some award of benefits, and did it?

[00:20:24] Speaker 02:
I got a little unusual with the thing you're setting up.

[00:20:31] Speaker 01:
uh... once you get to the veterans court again i think it's different at that level than it is in terms of arguments and claims that you need to make before the RO or the board because it is a court of appeals that question though still remains i mean if someone's arguing that there is a violation of the duty to assist do they have to show prejudicial error in order to be able to have that considered by the veterans court or have the veterans court remand for the duty to assist to be provided

[00:21:01] Speaker 01:
Does the veteran have to show that they would have benefited from that duty to assist in order to be able to show prejudicial error?

[00:21:15] Speaker 04:
I am not sure, Your Honor, I don't believe so, but the duty to assist is a little bit different than what we're talking about here because this is just an evaluation of what the claim is before the board as opposed to the VA affirmatively assisting in terms of

[00:21:34] Speaker 04:
say providing a medical exam or looking for medical records.

[00:21:38] Speaker 04:
That's what I would view as what we would call the duty to assist.

[00:21:42] Speaker 04:
This is a little bit different in the sense that it's not VA assisting.

[00:21:47] Speaker 04:
It's the board as an appellate body and what it's required to look at in the record and under

[00:21:55] Speaker 04:
Robinson, both the Veterans Court case and the case that was appealed to this court, only what's reasonably raised by the record is what the board needs to consider.

[00:22:06] Speaker 02:
And if you started off by wanting to argue the jurisdictional issue in this case, is that the jurisdictional question that we don't have

[00:22:17] Speaker 02:
Yes, Your Honor.

[00:22:18] Speaker 02:
It is not a legal question.

[00:22:20] Speaker 02:
It's a factual question.

[00:22:21] Speaker 04:
Absolutely.

[00:22:22] Speaker 04:
That's a factual question.

[00:22:23] Speaker 04:
That's the way the Veterans Court considered it.

[00:22:25] Speaker 04:
They considered it as not clear error of view.

[00:22:27] Speaker 04:
This court would not have jurisdiction to go back and look at the record and say, was TDIU based on a single disability?

[00:22:36] Speaker 01:
Because the board looked at that.

[00:22:38] Speaker 01:
It's the board that would have had to look to see whether there was that evidence of unemployability, I guess.

[00:22:43] Speaker 04:
Right.

[00:22:46] Speaker 02:
I guess part of the confusion is reasonably raised by the record still leaves open the question is who's got the burden to chew up, right?

[00:22:56] Speaker 02:
Right, and I think... I mean, does reasonably raised by the record mean at least the board has to comb through the record and find out if there's anything there?

[00:23:06] Speaker 04:
I mean, at base, there obviously has to be some kind of a claim of any sort that the veteran has raised before the RO and is then appealing to the board.

[00:23:18] Speaker 04:
We agree it doesn't have to specify that it's SMC, but there has to be something going on to trigger the board to even

[00:23:26] Speaker 04:
look at a case, period.

[00:23:28] Speaker 01:
How do we get more understanding of what that something is, that threshold?

[00:23:33] Speaker 01:
I think this was raised earlier by Judge Post, but you said the only way to know what that threshold is, is by looking at prior cases?

[00:23:46] Speaker 04:
Prior cases would certainly help in terms of how far, what reasonably raises something from the record.

[00:23:56] Speaker 04:
In the case of special monthly compensation, then yes, you could look at the special monthly compensation cases such as Bradley and Bowie from the Veterans Court and say, well, what's enough to raise the issue of special monthly compensation before the board?

[00:24:14] Speaker 02:
But you think that's a factual and not a legal question.

[00:24:18] Speaker 04:
I think it's a factual question in this case because all the Veterans Court did was apply Bradley, Dewey, Akers, those cases to say you didn't rate, because under those cases there has to be something reasonably raised by the record and there was nothing here reasonably raised by the record showing that a single disability could fulfill the TDIU criteria.

[00:24:44] Speaker 04:
that it was just an application of those cases to the facts here.

[00:24:49] Speaker 02:
And you're saying it just makes sense that the veteran is the one who's appealing the board decision to the CAVC, so in order to get the return, they would have to point to what's reasonably raised in the record that would require the board to act.

[00:25:03] Speaker 04:
Yes, Your Honor, exactly.

[00:25:04] Speaker 04:
At the level of the Veterans Court, they would have to point to some error that the board made, that there was something reasonably raised in the record that the board missed and didn't consider.

[00:25:14] Speaker 04:
And in this case, Mr. Dean does not bring that up at all.

[00:25:18] Speaker 04:
He doesn't point to what evidence.

[00:25:21] Speaker 04:
In fact, it's not even clear whether it's the PTSD that he's saying is a single disability or if there's some other combination out there, even at this point in the appeal.

[00:25:32] Speaker 02:
Wouldn't you, for TBIU, don't you need 100% disability on something?

[00:25:39] Speaker 02:
A single disability of 100%?

[00:25:42] Speaker 02:
That's what I understood the background of law was.

[00:25:45] Speaker 02:
in terms of what he would have to prove here.

[00:25:47] Speaker 04:
No, so the background for TDIU is from 4.16A, which is that you have to have either one disability rated at 60% or more, or two disabilities, at least one rateable at 40% or more, with a combined rating to 70% or more.

[00:26:07] Speaker 04:
Because TDIU doesn't, other than those thresholds, it doesn't turn on

[00:26:12] Speaker 02:
the percent disability rating, it turns on this phrase, which is- Let me ask you, I'm looking at S1, and I thought in S1, it said SMC if the veteran has a service-connected disability rated as total, and he has additional service-connected.

[00:26:29] Speaker 02:
So I may be wrong, but I understood that to mean that he needs one at 100%.

[00:26:36] Speaker 04:
He needs one that is rated as total.

[00:26:40] Speaker 02:
Does that mean one rated 100%?

[00:26:45] Speaker 04:
Not exactly because it's referring to 4.16a which I just mentioned before so you can have

[00:26:51] Speaker 04:
a total disability rating based on unemployability, even if the underlying disability is not compensated at 100 percent, because if you have that showing of unemployability, that meets the criteria to be considered a service-connected disability rated as total in 1114S.

[00:27:13] Speaker 04:
So it would not necessarily be that the PTSD or whatever he was claiming would have to be rated as 100%.

[00:27:21] Speaker 04:
It would be that the PTSD would be considered total disability under 4.16A or possibly 4.16B.

[00:27:31] Speaker 04:
And then that would count in 1114S as the service-connected disability rated as total.

[00:27:39] Speaker 04:
And then he would also have to have other additional disabilities.

[00:27:43] Speaker 00:
I think I'm still struggling with what issue is before us and what the government's view is on it.

[00:27:50] Speaker 00:
I understand today, Mr. Carpenter is saying he asked the Veterans Court to decide, did the board have an obligation to address SMC?

[00:27:59] Speaker 00:
If that is the question he presented to the Veterans Court, did they answer it?

[00:28:04] Speaker 00:
Did they tell the board whether it had an obligation to address SMC?

[00:28:09] Speaker 04:
absolutely that in the way that uh... mister being frames that issue here is this judicial review and i think there's no question here that the veterans court address the exact issue that mister being raised before it and went into a detailed analysis about and where did the argument where does the uh... veterans court answer that question probably we agree the answer is no the board did not have an obligation to do so if you look at appendix page seven

[00:28:43] Speaker 04:
It says in the middle of the page under the discussion section, the appellant asked this court to address whether the board earned by failing to adjudicate SMC.

[00:28:53] Speaker 04:
That's precisely the issue that Mr. Dean says he raised before the Veterans Court today and that he said in his briefs.

[00:29:00] Speaker 04:
And then the file, and if so, to determine the proper remedy.

[00:29:03] Speaker 04:
And then the following sentence says,

[00:29:05] Speaker 04:
the court is not persuaded by his arguments, and then the whole rest of the decision essentially explains why the Veterans Court was not persuaded that the board erred in failing to adjudicate SMC.

[00:29:19] Speaker 04:
I'm not sure how that doesn't count as judicial review.

[00:29:23] Speaker 04:
Judicial review is basically a court's review of a lower court or an administrative body's factual or legal findings.

[00:29:31] Speaker 04:
That's exactly what happened here.

[00:29:33] Speaker 04:
And as I said, the court specifically addressed the issue that Mr. Dean raised.

[00:29:39] Speaker 04:
So in terms of the judicial review argument, we think there's no basis to support that argument.

[00:29:46] Speaker 04:
Although it seems a little bit like, although he's framed it as a judicial review argument, that his argument is more about what we've been discussing previously about recently raised by the record.

[00:30:00] Speaker 04:
I see him over time.

[00:30:00] Speaker 04:
There's no further questions.

[00:30:02] Speaker 04:
Thank you.

[00:30:09] Speaker 03:
I'd like to direct the court's attention to

[00:30:21] Speaker 03:
The November 24, 2014 rating decision, which is in the record beginning at Appendix 17.

[00:30:30] Speaker 03:
At Appendix 24, it indicates that entitlement to individual unemployability was granted effective October 16, 2012.

[00:30:45] Speaker 03:
If you continue in the appendix to appendix 27, you will see in what is called the code sheet at appendix 27, the post-traumatic stress disorder had a 70% rating from 2012.

[00:31:00] Speaker 03:
This was the evidence that was in the record at the time of the board's decision.

[00:31:07] Speaker 03:
And if you look at the additional disabilities below there, at that time, they did not qualify for SMC.

[00:31:18] Speaker 03:
But later, there was a rating decision in which he was granted additional disabilities, and that's in the record at

[00:31:44] Speaker 03:
Sorry.

[00:32:02] Speaker 03:
85 to 97.

[00:32:05] Speaker 03:
And at that time, he then met the and additional disabilities that qualify for 60% or more to trigger the application of 1114S1.

[00:32:20] Speaker 03:
And to answer your question, Judge,

[00:32:22] Speaker 03:
to the government, the Bradley decision was the decision that changed the view that you read 1114S to mean you had to have a 100% scheduler rating.

[00:32:36] Speaker 03:
The holding in Bradley was it could be either a 100% scheduler rating or a single disability that TDIU was granted for

[00:32:52] Speaker 03:
as the component for the first requirement of 1114A.

[00:32:57] Speaker 02:
Let me ask you one other quick question before the time runs out, which is, I understand from the briefing that you raised either the same or related SMC theory in a separate proceeding?

[00:33:09] Speaker 03:
There is a proceeding before the agency in which he has been repeatedly denied

[00:33:16] Speaker 03:
SMC by the agency.

[00:33:19] Speaker 03:
If this appeal is not granted, then he will have the additional avenue to proceed to deal with whether or not the agency that denied it, correctly denied it.