[00:00:00] Speaker 03: Our next case is my bill, Mrs. McDonough, 22-2298. [00:00:07] Speaker 03: Mr. Carpenter, you have reserved five minutes of time for rebuttal. [00:00:10] Speaker 03: Is that? [00:00:11] Speaker 01: I have, Your Honor. [00:00:12] Speaker 01: Thank you. [00:00:13] Speaker 01: May it please the court, Kenneth Carpenter, appearing on behalf of Diane. [00:00:16] Speaker 03: We understand that you filed a motion to supplement the record. [00:00:21] Speaker 03: Is that correct? [00:00:21] Speaker 01: I did, yes. [00:00:22] Speaker 03: And you did that when? [00:00:24] Speaker 03: This morning? [00:00:25] Speaker 01: No, I'm sorry. [00:00:26] Speaker 01: I filed a motion. [00:00:28] Speaker 01: No, I don't believe I did in this case. [00:00:29] Speaker 01: I'm sorry. [00:00:30] Speaker 03: It's your motion. [00:00:32] Speaker 03: What's the motion? [00:00:35] Speaker 00: The motion is to amend the record to add six pages that we cited in our brief. [00:00:40] Speaker 00: It's the reply brief of the letters. [00:00:41] Speaker 03: OK, we grant the motion. [00:00:42] Speaker 03: The pages will be added. [00:00:44] Speaker 03: You may proceed, Mr. Kirkland. [00:00:50] Speaker 01: Sorry, I lost my place here. [00:00:54] Speaker 01: I'm Kenneth Carpenter appearing on behalf of Ms. [00:00:56] Speaker 02: Diana Meydel. [00:00:58] Speaker 02: Ms. [00:00:58] Speaker 02: Meydel's case exemplifies both the need and the importance of the 1998 rule of law created by the Veterans Court in its decision in Stigall, which provides that a remand [00:01:13] Speaker 04: Are you just asking us here to apply law to the facts of the case? [00:01:17] Speaker 04: Or if not, what specific legal issue are you asking us to review? [00:01:22] Speaker 02: Well, the legal error was the Veterans Court not following its own precedent in Stigall to recognize that the remand decision in 2012, which was the basis for the joint motion for remand in 2012, [00:01:37] Speaker 02: 2020 controlled the disposition of the question that was addressed by the court which was whether or not there was or was not a claim in 2012 your honor the court or excuse me the board specifically addressed in that board remand and that the [00:02:01] Speaker 02: 1994 notice that was provided for the original claim for hearing loss was defective. [00:02:11] Speaker 02: And that further, that August 1993 claim for service connection had been pending for. [00:02:19] Speaker 04: So how do you distinguish the diamond case? [00:02:24] Speaker 02: I don't believe the Diamond case has any application here because of the requirement of the Veterans Court under its own case law to afford the appellant an enforceable right to the terms of a remand in this case that was [00:02:44] Speaker 02: negotiated by the parties that referred to a board remand that took place in 2012. [00:02:51] Speaker 02: And that board remand in 2012 was dispositive of the question that was addressed by the court rather than the question that was addressed by the parties in terms of whether or not the 2020 remand required the matter to go back to the board for compliance. [00:03:11] Speaker 02: The 2012 board remand specifically indicated that Ms. [00:03:19] Speaker 02: Meydel's case, her initial claim for service connection, had been pending since August of 1993. [00:03:25] Speaker 02: That's in Appendix 42. [00:03:27] Speaker 02: It is also noteworthy in this case that the VA's own examination as part of that original [00:03:36] Speaker 02: August 1993 claim was a VA examination for hearing loss that specifically noted at page 22 of the appendix as part of that examination for the original claim that the veteran suffered from tinnitus. [00:03:53] Speaker 02: But the relevant portion of the board's remand was, at Appendix 43, that it directed the agency of original jurisdiction to re-adjudicate the issues of both hearing laws and tinnitus in light of the fact that the December 1993 rating decision was non-final. [00:04:13] Speaker 03: That's a controlling. [00:04:15] Speaker 03: It seems that in order to address these arguments that you're bringing up, that it is an application of law to fact. [00:04:24] Speaker 03: And we don't have jurisdiction to entertain those type of issues. [00:04:32] Speaker 02: That is generally the rule, Your Honor, but the Congress amended this court's jurisdiction to include rule of law jurisdiction. [00:04:40] Speaker 02: And this case involves a rule of law that was created by the Veterans Court in 1998 in the Stigall case. [00:04:48] Speaker 02: And that rule of law was applicable, argued below by both parties. [00:04:54] Speaker 03: Maybe if the case is directed to [00:04:56] Speaker 03: the issue you're talking about, but here your entire argument is about the disagreement that you have over what the board and the Veterans Court did with a particular remand order. [00:05:10] Speaker 02: Yes, Your Honor, because that's the essence of the rule of law. [00:05:14] Speaker 02: It is akin to the law of the case that when a remand makes a specific instruction, that instruction is enforceable. [00:05:24] Speaker 02: And in this case, the 2012 board made an explicit remand to re-adjudicate [00:05:31] Speaker 02: both claims. [00:05:33] Speaker 02: So the question of whether or not there was a formal or informal claim for tinnitus is irrelevant. [00:05:40] Speaker 02: And that was the basis upon which the decision was affirmed below. [00:05:46] Speaker 02: That decision to affirm was done in direct opposition to the rule of law that was created by that court. [00:05:54] Speaker 02: in Stigall. [00:05:55] Speaker 02: And we're asking this court to interpret that rule of law as created by the Veterans Court and determine that that rule of law was both applicable to and controlled the disposition of the appeal below. [00:06:10] Speaker 02: That is a question of law, Your Honor, that I believe is within this court's jurisdiction. [00:06:19] Speaker 02: This case, Your Honor, has been continuously pursued now into its fifth decade over a period of entitlement to compensation for tinnitus, which has already been conceded and determined by the agency, effective in 2007. [00:06:36] Speaker 02: The only question here is whether or not there was or was not an original claim [00:06:41] Speaker 02: for Tinnitus in 1993. [00:06:43] Speaker 02: The Board of Veterans' Appeals disposed of that issue by finding that that claim was still pending and that the agency of original jurisdiction was required to re-adjudicate, which it ultimately did. [00:06:57] Speaker 02: And in the 2014 decision, the Board of Veterans' Appeals [00:07:03] Speaker 02: found that the veteran was entitled to the benefit of the adjudication of both claims for tinnitus and hearing loss. [00:07:19] Speaker 02: Question before this court is whether or not the inquiry that was made by the Veterans Court should have been made under the auspices of the rule of law set out in Stigall, specifically whether or not there was compliance with the June 20 joint motion for remand, which required the board to [00:07:40] Speaker 02: reconcile its finding that there was no claim with the Board of Veterans Appeals remand decision in 2012. [00:07:49] Speaker 02: We believe that this court, consistent with the notion of [00:07:57] Speaker 02: The law of the case should apply this judicially created rule of law to prevent, as has consistently been going on here, the re-litigation of issues that were already previously disposed of. [00:08:11] Speaker 02: Now, this is a legacy appeal. [00:08:15] Speaker 02: Congress, with the enactment of the AMA, has resolved this issue by creating a specific statute which says that a favorable finding of fact [00:08:26] Speaker 02: is binding unless there is clear and convincing evidence to the contrary that that finding of fact was incorrect. [00:08:34] Speaker 02: In this case, there was a finding of fact made by the board which is only enforceable in terms of the enforceability of the 2012 board remand. [00:08:47] Speaker 02: We believe that that supports [00:08:53] Speaker 02: Ms. [00:08:54] Speaker 02: Meydel's appeal and that she is entitled to a vacature of the decision below and an order from this court adopting and elaborating upon the requirement of the VA Veterans Court, excuse me, to enforce remand orders of the board. [00:09:18] Speaker 02: Unless there's further questions, I'll reserve the balance of my time. [00:09:32] Speaker 00: May it please the court. [00:09:33] Speaker 00: This court lacks jurisdiction over the appeal. [00:09:36] Speaker 00: Ms. [00:09:36] Speaker 00: Modell's claim is at bottom a challenge to the board's jurisdiction, or a challenge to the board's application of law to fact, determining whether the board's actions complied with the requirements of the remand. [00:09:46] Speaker 00: But as Your Honor was mentioning, this court has already decided in a presidential opinion diamond that the issue of VA's substantial compliance with the remand order is one that involves application of law to fact, which this court lacks jurisdiction over under 7292. [00:10:04] Speaker 00: That's the essential argument. [00:10:06] Speaker 04: So in your briefing, I think you acknowledged that it's possible in the abstract for the question of substantial compliance with the remand order to contain an embedded legal question. [00:10:17] Speaker 00: Yes, Your Honor. [00:10:18] Speaker 04: Do you consider the scope of a remand order to be a legal question or more of a factual question? [00:10:23] Speaker 00: The scope of remand order, our understanding is that it's a factual question. [00:10:28] Speaker 00: This court, aside from this Bergman case that we identified, has never held in a precedential decision that the scope of remand order is a question of law. [00:10:36] Speaker 00: And if it does so, you're going to expect a lot of claims. [00:10:40] Speaker 00: That is going to be a highway for claims to come here to this court. [00:10:46] Speaker 00: That also comports of how this court does, for instance, claim construction. [00:10:52] Speaker 00: what the contents of a claim are, are an issue of fact. [00:10:55] Speaker 00: This court has held that before. [00:10:58] Speaker 00: And so this is analogous to that kind of issue. [00:11:04] Speaker 00: If this court does reach the decision, if the court does determine that it has jurisdiction over it, then it should still deny Ms. [00:11:11] Speaker 00: Mydell's claim. [00:11:12] Speaker 00: It still fails. [00:11:12] Speaker 00: And that's because the construction of the remand order is not as Ms. [00:11:18] Speaker 00: Mydell presents it. [00:11:20] Speaker 00: I was actually a little puzzled by counsel's presentation of the argument. [00:11:23] Speaker 00: I don't believe that that's actually the presentation that was present in this brief. [00:11:27] Speaker 00: The remand order that's at issue in this appeal is the June 2020 remand order, which says that the board is supposed to reconcile the May 2012 decision and the January 2007 decision. [00:11:43] Speaker 00: There was a 1993 claim pending. [00:11:45] Speaker 00: According to the May 2012 decision, there was a 1993 claim pending for hearing loss. [00:11:50] Speaker 00: But then later, the court ruled in 2019 that the first time there was a claim for tinnitus was in January 2007. [00:11:58] Speaker 00: And so the remand order is just to say, is there any conflict here? [00:12:01] Speaker 00: Should we understand that these could, the earlier claim, have encompassed tinnitus? [00:12:07] Speaker 00: And the board reconciled those matters as we set forth in our brief. [00:12:11] Speaker 00: Ms. [00:12:11] Speaker 00: Meydel tries to construe this remand order [00:12:17] Speaker 00: basically read out all of the contextualizing statements and just say that, therefore, the board was required to find that tinnitus was included. [00:12:23] Speaker 00: But it wasn't, and that's not the proper construction of the remand order. [00:12:28] Speaker 00: I won't take the balance of my time if the court has no questions. [00:12:32] Speaker 03: Thank you for your argument. [00:12:33] Speaker 03: Mr. Carpenter? [00:12:36] Speaker 02: Your Honor, Ms. [00:12:37] Speaker 02: Feidell's appeal does not require this court to review the contents of the remand order. [00:12:43] Speaker 02: this court is only obligated to look at the rule of law created in Stigall. [00:12:49] Speaker 02: The rule of law in Stigall says that an appellant receives an enforceable right when he receives a remand order from either the court or the board. [00:13:00] Speaker 02: In this case, in July of 2020, there was a joint remand entered into the parties that was granted by the court. [00:13:09] Speaker 02: That joint remand order incorporated [00:13:13] Speaker 02: in its joint remand motion, the 2012 remand decision, because the 2012 remand decision specifically found that the 1993 claim was pending. [00:13:28] Speaker 02: What happened in this case procedurally was is that in 2007, Ms. [00:13:33] Speaker 02: Videl attempted to reopen. [00:13:36] Speaker 02: And eventually, that reopen claim was considered in 2012. [00:13:41] Speaker 02: And one of the findings made by the board in the 2012 decision was that this was not a reopened claim, because there had to have been a previously disallowed claim. [00:13:53] Speaker 02: So the only claim is the 1993 decision. [00:13:57] Speaker 02: We believe that that is controlled by the 2020 remand, which was entered into by the parties that incorporated the 2012 remand. [00:14:07] Speaker 02: If there's any further questions, I believe we can submit that. [00:14:10] Speaker 02: Thank you, Mr. Carver. [00:14:12] Speaker 03: We'll take the case under advisement.