[00:00:00] Speaker 01: We have four argued cases this morning. [00:00:03] Speaker 01: The first is number 23, 1827, Harris v. McDonough. [00:00:08] Speaker 01: Mr. DeHawkwes. [00:00:11] Speaker 03: Good morning. [00:00:11] Speaker 03: May it please the court. [00:00:13] Speaker 03: Kenny DeHawkwes, court appellant. [00:00:14] Speaker 03: On behalf of Mrs. Harris, I want to thank this court for the opportunity to present her appeal. [00:00:19] Speaker 03: For this court's appeal, I'd ask the court to reiterate the rule of law for determining the scope of a claim. [00:00:26] Speaker 03: Mrs. Harris challenges the Veterans' Court's decision as it relates only to the rules of law it applied when it affirmed the VA's determination with respect to the scope of the 2013 claim of her late husband. [00:00:40] Speaker 03: The undisputed facts show that before the Board first reviewed the 2013 claim for increased ratings, Mr. Harris formally requested a TDIU rating for his service-connected disabilities. [00:00:52] Speaker 01: Okay, that happened in 2018, right? [00:00:55] Speaker 03: That's correct, Your Honor. [00:00:56] Speaker 01: Okay. [00:00:57] Speaker 01: So why does that claim for an increased rating, which is what TDIU is, relate back to 2013? [00:01:06] Speaker 01: There's a specific fact-finding [00:01:10] Speaker 01: both by the board and approved by the Veterans Court, that the record didn't contain evidence of unemployability sufficient to raise a TGI you claimed before 2018. [00:01:23] Speaker 03: That's correct, Your Honor. [00:01:25] Speaker 03: And that's the issue that we're challenging, was that the Board and the Veterans Court both misapplied the law by looking for a request prior to 2018, as opposed to looking at all of the evidence of record [00:01:41] Speaker 03: that has been assembled prior to the decision. [00:01:44] Speaker 03: Under 3.156B, and this court's precedent, as well as Rice v. Shinseki, which of course this court is not bound by, but the Veterans Court is, the issue of a total of a TDIU rating, when explicitly raised as part of an appeal, relates back to the then pending claim. [00:02:04] Speaker 00: Isn't Rice only relevant to an initial disability rating rather than an increased rating claim? [00:02:09] Speaker 03: It does not, Your Honor. [00:02:11] Speaker 03: And the reason for that is that the new and material evidence regulation, 3.156B, which in 2018, we recognize that this is now within the AMA, but when the evidence was submitted in 2018, it was still within the legacy and that regulation applied. [00:02:29] Speaker 03: That regulation does not differentiate between an initial rating claim and an increased rating claim. [00:02:34] Speaker 03: It just says claim. [00:02:36] Speaker 03: And when the evidence is new material, or potentially new material, [00:02:42] Speaker 03: Excuse me, under this court's precedent, going back to Bond as one of the earlier cases, the VA has an obligation under that regulation to assess whether it is new material to that claim. [00:02:55] Speaker 02: You split off your TDIU claim from the rest of your 2013 claim, assuming they're all the same claim, when you sought higher level review, right, in 2020? [00:03:10] Speaker 02: Therefore, this TDIU appeal is within the Appeals Modernization Act track of appeals, and it's not part of the legacy system of appeals anymore. [00:03:24] Speaker 02: Isn't that right? [00:03:25] Speaker 02: It is today, Your Honor. [00:03:26] Speaker 03: However, when the evidence was submitted, the then applicable law was 3.156b. [00:03:35] Speaker 02: How can 3.156b, which, as I understand, applies to legacy claims, [00:03:40] Speaker 02: have relevance here when you jumped off of the legacy system and moved this TDIU request into the AMA system? [00:03:52] Speaker 03: Because when the evidence was submitted in 2018, Your Honor, the law required that that evidence be treated as if it were surveyed by the 2003 claim. [00:04:03] Speaker 02: But you have the choice of whether to maintain a legacy system appeal [00:04:08] Speaker 02: or elect to enter the Appeals Modernization Act appeal system, right? [00:04:14] Speaker 02: That's correct, Your Honor. [00:04:15] Speaker 02: So once you make that choice, then doesn't the law for the AMA type appeals apply to your appeal? [00:04:25] Speaker 02: It does going forward, Your Honor. [00:04:27] Speaker 03: But looking backwards, we look at the law at the time that the action occurred. [00:04:33] Speaker 03: And when that action occurred, [00:04:35] Speaker 03: 3.156b was in effect and required the VA to treat that evidence submitted in 2018 as if it were submitted with the then pending 2013 claim. [00:04:47] Speaker 02: My real problem here is that before the Veterans Court, you didn't make the argument that you're now making to this court. [00:04:57] Speaker 02: As I understand what you argued to the Veterans Court or your prior counsel, it was an argument that [00:05:05] Speaker 02: A TDIU request had been implicitly raised before 2018 because there was cogent evidence of unemployability in the record. [00:05:17] Speaker 02: And there was no argument to the Veterans Court that a TDIU request made while a claim stream is open makes the TDIU request part and parcel of that original filed claim. [00:05:33] Speaker 02: Am I understanding what was argued to the Veterans Court correctly? [00:05:37] Speaker 03: You are, Your Honor. [00:05:38] Speaker 03: However, I have two responses to that. [00:05:40] Speaker 03: Excuse me. [00:05:42] Speaker 03: Number one is to the board. [00:05:43] Speaker 03: The veteran argued that Rice, Vish, and Secchi controls. [00:05:47] Speaker 03: And the underlying basis of Rice, Vish, and Secchi was 3.156. [00:05:52] Speaker 02: But for whatever reason, counsel chose to take a different legal strategy and make a different legal argument to the Veterans Court. [00:06:03] Speaker 02: than what was made to the board. [00:06:06] Speaker 02: And so I don't understand how this court can claim that the Veterans Court committed some type of error when the Veterans Court did nothing more than or needed to do anything more than actually address the argument that was made to it. [00:06:24] Speaker 03: And my second response, Your Honor, is that the Veterans Court is always required to apply the law. [00:06:29] Speaker 03: And when they made this decision, when they affirmed the board's determination that there was no cogent evidence of unemployability, it misapplied the law because Mr. Harris had specifically requested a TDIU rating. [00:06:43] Speaker 03: The cogent evidence of unemployability [00:06:45] Speaker 03: under Comer, which is the case where that language comes from, arises only when the veteran does not specifically request a TDIU rating. [00:06:54] Speaker 03: So the law looks at, requires under Wilberson and Comer for the VA to sympathetically develop the claim to its optimum, and part of that is to review the entire record, and if the veteran [00:07:07] Speaker 03: affirmatively request the TDIU rating, they're done. [00:07:12] Speaker 02: Why was the argument that you're making now to us made to the Veterans Court? [00:07:16] Speaker 02: Do you know? [00:07:17] Speaker 02: I do not know, Your Honor. [00:07:18] Speaker 02: I cannot speak to that. [00:07:21] Speaker 03: My guess is that they were responding to what the board said in that there was no cogent evidence of unemployability as opposed to [00:07:29] Speaker 03: The response which we're making here is that the law didn't require that. [00:07:33] Speaker 03: The law has only required that the issue. [00:07:36] Speaker 00: What is your best argument for why the argument making now in appeal has not been forfeited? [00:07:43] Speaker 03: Well, as we pointed out in our reply brief, Your Honor, under the amended 7292, this court has case jurisdiction. [00:07:53] Speaker 03: I don't think there's any doubt that this falls within that. [00:07:57] Speaker 03: Or maybe I'm misspeaking there, but when we're looking at the why [00:08:05] Speaker 03: It wasn't forfeited. [00:08:07] Speaker 03: Number one is that the Veterans Court, again, was required to correctly apply the law. [00:08:12] Speaker 03: And the law when it made its decision included Rice, which was binding on that court. [00:08:17] Speaker 03: It included Murphy from this court, which discusses the reasonable expectations when looking at the scope of a claim. [00:08:24] Speaker 01: It sounds as though you're saying there can't be a forfeiture. [00:08:27] Speaker 01: in a veteran's case, and that's not the law. [00:08:32] Speaker 01: We've held in the past that there can be forfeiture for failure to raise arguments. [00:08:38] Speaker 03: I believe, the way that I read Morgan, Your Honor, that the decision is what, or rather the case is what [00:08:47] Speaker 03: the issue. [00:09:02] Speaker 03: Morgan pointed out that this was a kind of a new argument that hadn't been addressed by any other court. [00:09:10] Speaker 03: But here, this is well-established, long-standing case law for 20 years from Rice. [00:09:16] Speaker 03: Bond has been around for over 10 years. [00:09:20] Speaker 03: And Murphy has been in play for a couple of years now. [00:09:22] Speaker 01: But I don't understand, coming back to the merits, Ron. [00:09:26] Speaker 01: I don't understand how your argument is consistent with Gaston. [00:09:30] Speaker 01: where we held that a TDI, you claim, is a claim for an increased rating, and that the rules for increased ratings mean that you can only go back for one year if the condition justifying the increased rating occurred during that one year period. [00:09:47] Speaker 01: So it seems to me that Gaston is potentially on point and is a rejection of your theory that you can go all the way back to 2013. [00:09:58] Speaker 03: John, Gaston? [00:09:59] Speaker 03: does apply, obviously, it is the law, but it first requires us to ascertain what is the date of claim. [00:10:08] Speaker 03: And here, particularly bond, and I didn't discuss bond in my briefing, but as I was preparing for this, we talked about 3.156B and its application, but bond is very similar on the facts, where a TDIU rating was raised, like in rice, after a rating increase had been denied, [00:10:28] Speaker 03: And this court held specifically that it can be both, that it can be new and material evidence, even though the regional office treats it as a new claim. [00:10:38] Speaker 00: And when we already- Can you respond to Judge Dike's question about how you distinguish Gaston? [00:10:43] Speaker 01: So Your Honor, Gaston is- You agree, first of all, that a TGIU claim is a claim for an increased rating, right? [00:10:51] Speaker 01: Um, it can be your honor. [00:10:55] Speaker 01: Yes. [00:10:55] Speaker 01: And in this case, it is, it is a request. [00:10:58] Speaker 01: It is a request for an increase. [00:11:00] Speaker 01: Under Gaston, can you assert that you can get an effective date that goes back to 2013? [00:11:07] Speaker 01: It seems to be directly and consistently. [00:11:09] Speaker 03: Yes. [00:11:10] Speaker 03: Well, it's not your honor, because again, the 2013 claim was pending before the board. [00:11:16] Speaker 03: While it was pending, Mr. Harris then told the board, yes, you have these claims pending. [00:11:21] Speaker 03: I'm asking for a higher rating. [00:11:23] Speaker 03: And now I'm also asking for the highest rating, which is a TDI rating. [00:11:27] Speaker 01: I don't understand what you're saying. [00:11:29] Speaker 01: I mean, you're asking for an effective date many years earlier than the time at which a claim was made or the evidence of record [00:11:40] Speaker 01: And my response to that, Your Honor, is that the 2018 submission was not a claim. [00:11:55] Speaker 03: It was evidence submitted as part of the 2013 claim. [00:11:59] Speaker 03: where he was already asking for a higher rating. [00:12:02] Speaker 01: But I thought there was a claim for an increased rating a moment ago. [00:12:05] Speaker 03: Well, what I said, Your Honor, was that it can be an increased rating. [00:12:09] Speaker 03: And in this case, it was part of his increased rating, which had started in 2013. [00:12:14] Speaker 03: And that's what Rice was about. [00:12:16] Speaker 01: That's what Bob was about. [00:12:17] Speaker 01: I do not understand what you're saying about Gaston or how you can, under Gaston, how you can go back to 2013. [00:12:24] Speaker 01: I don't get it. [00:12:25] Speaker 03: Well, I think the response, Your Honor, is that the evidence of unemployability was simply showing the VA that in addition to looking at higher scheduler ratings, we also have to look at TDIU ratings. [00:12:39] Speaker 03: That's what Comer was talking about. [00:12:41] Speaker 03: That's what Roberson was talking about. [00:12:43] Speaker 03: That TDIU can be raised with cogent evidence of unemployability in Comer. [00:12:48] Speaker 03: or it can be raised by affirmatively requesting it from the veteran. [00:12:53] Speaker 03: And that's what Mr. Harris did here. [00:12:56] Speaker 03: I'm about out of time, so if there are no more questions, I will reserve the rest. [00:13:01] Speaker 01: Thank you, Your Honor. [00:13:04] Speaker 01: Mr. Carhartt. [00:13:20] Speaker 03: The Veterans Court's opinion should be affirmed because first, Mrs. Harris has waived the argument she raises before this Court by failing to raise it before the Veterans Court, and second, the Veterans Court did not err when it awarded an effective date of April 16, 2018 for Mrs. Harris's TDIU rating. [00:13:40] Speaker 03: So first on the waiver point, I'll respond to Mr. Gohakos' argument about jurisdiction. [00:13:47] Speaker 03: I think he's conflating jurisdiction with waiver. [00:13:52] Speaker 03: This court, as Judge Jike suggested, has recognized that waiver does apply in veterans' cases. [00:13:57] Speaker 03: If a veteran doesn't raise an argument, that's a separate question from whether the court has jurisdiction. [00:14:02] Speaker 03: Even though the court has jurisdiction, there's still the question of whether the issue was raised before the Veterans Court. [00:14:06] Speaker 03: Here it wasn't. [00:14:07] Speaker 03: And here you have a situation where not only was the argument not raised, but Mrs. Harris asked the Veterans Court to do something very specific, which is look at the evidence in the record and assess whether it constituted cogent evidence of unemployability. [00:14:20] Speaker 03: The veterans courts of the board did that and didn't err in doing so. [00:14:25] Speaker 03: And now Mrs. Harris is raising a completely different argument on appeal. [00:14:29] Speaker 00: Is it correct that Mr. Harris was not represented by an attorney until 2018? [00:14:33] Speaker 00: Is that correct? [00:14:34] Speaker 03: He was represented by an attorney in 2018. [00:14:36] Speaker 03: But not until 2018? [00:14:39] Speaker 03: Before 2018, he was represented by a representative through a veterans service organization. [00:14:46] Speaker 03: So I think as far as I know, it's true that the attorney representation started in 2018. [00:14:50] Speaker 03: But at the Veterans Court, Mrs. Harris was represented. [00:14:54] Speaker 03: So the issue we're talking about now was when she was represented and relates to a period when she was represented. [00:15:01] Speaker 03: If there are no further questions about waiver, I'll move to the merits briefly. [00:15:06] Speaker 03: So here, there's a factual finding that there's no cogent evidence of unemployability prior to 2018. [00:15:12] Speaker 03: And that's dispositive in our view. [00:15:16] Speaker 03: With respect to this argument about 3.156b, Mr. DeHakos has developed the argument a little further, a little argument than he did in his briefs. [00:15:24] Speaker 03: Ultimately, though, the Veterans Court and the board did look at this evidence of this newly submitted evidence. [00:15:33] Speaker 03: It assessed the claim to have been submitted, and it awarded TDIU, or the RL actually, awarded TDIU. [00:15:41] Speaker 03: So this is not a case like Coma or Robeson where the VA and the board and the Veterans Court doesn't consider newly submitted evidence. [00:15:51] Speaker 03: It's a case where the Veterans Court and the board considered the evidence and then applied the appropriate regulatory provisions related to effective dates, which aren't even raised in Mrs. Harris's opening brief before this court. [00:16:08] Speaker 02: But in Comer, didn't we say that TDIU requests are not a freestanding claim? [00:16:14] Speaker 02: They shouldn't be looked at in that manner? [00:16:17] Speaker 02: They're a claim for increase. [00:16:19] Speaker 02: I think that's right. [00:16:20] Speaker 02: But once we say it's not a freestanding claim, then we have to characterize, well, then what is a TDIU request? [00:16:28] Speaker 02: And then why wouldn't the logical conclusion be that a TDIU request, while an initial claim is open, [00:16:38] Speaker 02: makes the TDIU request part and parcel of the initial claim. [00:16:45] Speaker 03: First, that would be an extension of Rice. [00:16:50] Speaker 03: And I think that's what the Veterans Court in Rice said that with respect to initial claims. [00:16:55] Speaker 03: With respect to what? [00:16:56] Speaker 03: With respect to initial claims. [00:16:58] Speaker 03: Yeah. [00:16:58] Speaker 03: So if there's an initial service connection claim and then a TDIU claim comes in at a later, or a TDIU assertion comes in at a later date, it's part and parcel. [00:17:08] Speaker 03: That doesn't resolve the effective claim. [00:17:09] Speaker 03: Does the government agree with that? [00:17:10] Speaker 03: We haven't taken issue with that in any setting. [00:17:14] Speaker 03: Does that mean you agree with it? [00:17:16] Speaker 02: We don't disagree. [00:17:19] Speaker 02: What does the VA manual say about it? [00:17:22] Speaker 02: Pardon? [00:17:22] Speaker 03: The VA manual cites rice. [00:17:26] Speaker 02: So the VA agrees with it? [00:17:28] Speaker 03: The VA doesn't have any issues with rice as applied to initial rating decisions. [00:17:35] Speaker 03: This will require an extension of rice to a different context. [00:17:38] Speaker 03: This is the increased rating. [00:17:40] Speaker 01: Right. [00:17:41] Speaker 03: This is an increased rating situation, which, as Judge Dyck's question suggested, is governed by Gaston. [00:17:47] Speaker 03: And there's a good reason that, as Weiss notes, Weiss is very explicit in saying increased ratings are resolved by, excuse me, increased rating [00:18:01] Speaker 03: applications are governed by different regulatory provisions. [00:18:05] Speaker 03: So Rice didn't purport to apply to an increased situation. [00:18:10] Speaker 03: Gaston did. [00:18:11] Speaker 03: And there's a good reason for that because a TDIU increase theory coming in at a later stage doesn't necessarily give notice that the TDIU assertion had been made an earlier date. [00:18:27] Speaker 03: Ultimately, though, this can probably be resolved in some other case where it's clearly presented to the Veterans Court, because here you have a factual finding that there was no cogent evidence of unemployability earlier than 2018. [00:18:38] Speaker 03: And in that situation, there's no basis to say that the claimant is entitled to TDIU for a period in which they did not submit evidence of unemployability. [00:18:49] Speaker 02: That's positive. [00:18:52] Speaker 02: Could you try to describe what is the principal distinction between an increased rating application claim and an initial claim and why we would treat one different from the other when it comes to subsequently requested TDIU? [00:19:13] Speaker 02: So, again, this is beyond the scope of what the process is. [00:19:17] Speaker 02: I'm just trying to understand your point of view that there's an important distinction between those two contexts. [00:19:23] Speaker 02: And right now I don't understand. [00:19:24] Speaker 03: So what 3.4000? [00:19:42] Speaker 03: So 3.400 parentheses O is the governing regulatory provision. [00:19:48] Speaker 03: And that's what would apply, and that's what applies in the case of an increase. [00:19:53] Speaker 03: So the governing provision of subsection two, earliest date as of which, for disability compensation, earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise date of receipt of claim. [00:20:13] Speaker 03: So this seems to, [00:20:15] Speaker 03: presuppose a situation where a claim is filed [00:20:23] Speaker 03: Excuse me, an increase occurs and a claim is filed and the increase happens after the date of receipt of claim. [00:20:33] Speaker 03: So there would be an anomalous situation under this regulation if Rice applied to a situation where the, as I think Mr. Johakos is suggesting here, you had a claim [00:20:52] Speaker 03: in 2013 and then an increase occurring at some point after that claim, say 2015, that would seem to suggest that the date of claim should be controlling under this regulation, such that the TDIU claim would relate back to 2013 if you read this regulation literally, which would seem to be anomalous because you get TDIU for a period in which there is no evidence of unemployability. [00:21:20] Speaker 03: That's a somewhat nuanced argument, I acknowledge. [00:21:22] Speaker 03: We would have developed it further if this argument had been specifically raised before this court. [00:21:27] Speaker 03: Ultimately, though, it's in a situation like this where there's no cogent evidence of unemployability prior to the formal claim for TDIU. [00:21:36] Speaker 03: There's no reason to have to wade into that. [00:21:39] Speaker 02: What should we do about the other side's argument about 3.156b, given that the TDIU request [00:21:48] Speaker 02: entered the AMA appeal system. [00:21:51] Speaker 03: So our submission is that the VA did comply, what we argued was that the VA did comply with 3.56B. [00:22:00] Speaker 03: So we didn't contest that they had to, we said they actually did because they consider all evidence of record throughout the process. [00:22:10] Speaker 03: So even before [00:22:12] Speaker 03: Even before the election, the R.L. [00:22:14] Speaker 03: was the one that was the entity that awarded TDIU. [00:22:18] Speaker 03: So at that point, the VA itself, before the Veterans Court, looked at all the evidence of record and said, yes, you're entitled to TDIU. [00:22:27] Speaker 03: It's just that it doesn't date back before 2018. [00:22:32] Speaker 03: So no further questions. [00:22:35] Speaker 03: We ask the court. [00:22:37] Speaker 01: Okay. [00:22:37] Speaker 01: Thank you, Mr. Carr. [00:22:42] Speaker 01: Mr. DeHakwa, a little over two minutes. [00:22:46] Speaker 03: Thank you, Your Honor. [00:22:48] Speaker 03: Judge Dike, I'd like to start by addressing the questions that you had with respect to the distinction between an increase in initial rating. [00:22:57] Speaker 03: From Rice, we see that the Veterans Court held, whether expressly raised by a veteran or reasonably raised by the record, TDIU is not a separate claim, but involves an attempt to obtain an appropriate rating for a disability [00:23:10] Speaker 03: or disabilities either as part of the initial adjudication or if a disability upon which entitlement to TDIU is faced has already been found to be service-connected as part of a claim for increased compensation. [00:23:24] Speaker 03: Now the distinction that the government talked about with respect to 3.400 with an initial versus an increased rating claim [00:23:33] Speaker 03: is appropriate, but we first have to determine which identify the claim that we're looking at. [00:23:42] Speaker 03: The government concedes that they did consider the evidence under 3.156b, but that regulation also requires not only the VA to consider the evidence, but to treat it as if it were [00:23:56] Speaker 03: treated as if it were filed with the then pending claim, which the VA did not do here. [00:24:01] Speaker 03: They treated it as a new claim violating rice, and I just want to emphasize again that once the veteran obtained representation, the attorney wrote the board [00:24:11] Speaker 03: pointed specifically to Rice and said, this request for a TDIU rating is to be considered as part of the 2013 claim that you, the board, are looking at. [00:24:22] Speaker 03: And this is what Murphy talked about from this court when reviewing the scope of the claim, the reasonable expectations of the claimant. [00:24:29] Speaker 03: Once he got representation, a competent attorney, they told the VA, this now includes a request for TDIU, and that's perfectly consistent with Rice. [00:24:40] Speaker 03: Roberson, this court, confirmed that each informal claim for a rating increase included a claim for the highest possible, highest rating possible, all the way up to 100%. [00:24:52] Speaker 03: And that led to its determination that TDIU was part of that. [00:24:55] Speaker 03: And then going back to Comer, there's no reason to, well, Comer, again, was with respect to raising the issue of TDIU, again, either informally or implicitly with cogent evidence, [00:25:10] Speaker 03: or explicitly as Rice, as Bond, as Mr. Harris did. [00:25:15] Speaker 03: And we've asked that this court reverse the Veterans Court and find that the scope of the 2013 claim included it, or at the very least remand to correctly apply the law. [00:25:25] Speaker 01: OK, thank you. [00:25:25] Speaker 01: Thank both counsel and cases submitted.