[00:00:00] Speaker 02:
First case today is Sean Rabin versus the Secretary of Veterans Affairs, 2022-2104, Mr. Carpenter.

[00:00:12] Speaker 00:
May I please?

[00:00:13] Speaker 00:
Clark and Carpenter appearing on behalf of Mr. Raven.

[00:00:16] Speaker 00:
This appeal, Your Honors, meets the Williams criteria set out by this Court because the Veterans Court made a separate and dispositive decision which required reversal and did not require remand.

[00:00:29] Speaker 00:
The Veterans Court found clearly and indisputably

[00:00:35] Speaker 00:
that the board had made an error of law on the basis for its denial for Mr. Ravenstein.

[00:00:43] Speaker 00:
Based upon that finding.

[00:00:44] Speaker 01:
But just because there's an unnecessary remand, that doesn't give you the right to appeal to this court, right?

[00:00:51] Speaker 01:
You can wait until the issue's resolved and then bring it up when it's final.

[00:00:57] Speaker 00:
No, Your Honor, but I do not believe that that's the case here because there was a disposition of the appeal by the Veterans Court which required reversal.

[00:01:09] Speaker 00:
Based upon the finding of error, reversal is required and not remand.

[00:01:14] Speaker 00:
An examination in this case of the remand is required.

[00:01:17] Speaker 00:
to determine whether or not there was any basis in law for such a remand.

[00:01:22] Speaker 00:
This remand was based upon a statutorily covered favorable finding of fact by the board.

[00:01:33] Speaker 01:
Veterans Court said there wasn't, that there was an issue about whether there was a favorable finding.

[00:01:38] Speaker 00:
No, Your Honor.

[00:01:38] Speaker 00:
What the Veterans Court said was is that there was a dispute between the parties, which we contest.

[00:01:44] Speaker 00:
There was not a dispute between the parties.

[00:01:47] Speaker 00:
Mr. Craven did argue that he was entitled as a matter of law to the benefit of that favorable finding of fact.

[00:01:54] Speaker 00:
But he did not dispute what was meant by it.

[00:01:58] Speaker 00:
It was only the secretary that disputed it.

[00:02:01] Speaker 00:
And that is a dispute.

[00:02:03] Speaker 00:
But that dispute is not relevant to the disposition of the appeal.

[00:02:07] Speaker 01:
Why not?

[00:02:08] Speaker 01:
I mean, if he didn't satisfy the one-year requirement, and if there isn't a finding that he satisfied the one-year requirement, then he wouldn't be entitled to an attorney's fee.

[00:02:19] Speaker 00:
favorable finding a fact comes into play that he had a valid fee agreement.

[00:02:24] Speaker 00:
They could not have made a valid fee agreement determination under the secretary's own regulations if he didn't meet the statutory and regulatory requirements for a valid fee agreement, which is an agreement that was entered into... You're asking us to rule as a matter of law on an issue which is a fact issue which was sent back for remand determination by the board.

[00:02:49] Speaker 00:
it was sent back to give the board another bite of the apple to revisit whether or not it really meant that this was a favorable finding of fact.

[00:03:00] Speaker 00:
That remand has no legal effect on the outcome of the appeal.

[00:03:06] Speaker 00:
Regardless of what was said by the board on remand, the statute does not give another bite of the apple to the board to revisit that.

[00:03:18] Speaker 00:
In fact,

[00:03:19] Speaker 00:
Congress contemplated that such a favorable finding of fact would only be rebutted in the future by later VA adjudicators which were required to rely upon and follow that favorable finding of fact.

[00:03:33] Speaker 00:
This is a do-over for the VA.

[00:03:36] Speaker 00:
There is no statutory provision that the VA gets another bite of the apple, particularly on a fee decision.

[00:03:43] Speaker 00:
There was only one basis in this case.

[00:03:45] Speaker 01:
You are asking us, Mr. Carpenter, to say there was no ambiguity in the board finding.

[00:03:51] Speaker 00:
I am not, Your Honor.

[00:03:52] Speaker 01:
I am asking you to find as a matter of- If there was ambiguity in the board finding, then why can't we have a remand to determine what the right interpretation is?

[00:04:01] Speaker 00:
Because there's no relevance to that determination in terms of the issue presented in the appeal to the Veterans Court.

[00:04:12] Speaker 00:
The board made a single disposition that there was no entitlement to a fee because he didn't have a board decision on the issue of TDIU.

[00:04:23] Speaker 00:
The secretary conceded that was not the correct legal standard, and the board found, or excuse me, the Veterans Court found that the board had error.

[00:04:32] Speaker 00:
Once that disposition of the only issue on appeal, which was, was there a valid basis for denial, was found to have been an error,

[00:04:42] Speaker 00:
then reversal and not remand was required.

[00:04:45] Speaker 00:
Remand is required to develop additional relevant evidence.

[00:04:49] Speaker 00:
Here we have a case in which Mr. Raven's appeal was disposed of by the concession of the secretary, and he was entitled as a matter of law to a reversal.

[00:05:02] Speaker 00:
And that's a legal question that this court should consider on appeal from a final decision that there was board error.

[00:05:14] Speaker 00:
Obviously, if this panel does not agree, then it will dismiss the appeal, unless there's further questions from the panel.

[00:05:22] Speaker 02:
Thank you, Mr. Carpenter.

[00:05:24] Speaker 02:
We will say the rest for you.

[00:05:27] Speaker 02:
Mr. Gold.

[00:05:39] Speaker 03:
Good morning.

[00:05:40] Speaker 03:
May it please the court.

[00:05:41] Speaker 03:
Having asked the Veterans Court to remand this case, the appellant now asks the Veterans Court to remand the case.

[00:05:50] Speaker 03:
The appellant now asks this court to find that it could not have been remanded and it should not have been remanded in the first instance.

[00:05:57] Speaker 03:
As we know on Appendix 150, the appellant has actually asked the Veterans Court to remand his case.

[00:06:04] Speaker 03:
Now before this court, the claimant must prove that he fits the Williams criteria, the three-factor test.

[00:06:11] Speaker 03:
We think the application of Williams to this case shows that the request here

[00:06:16] Speaker 03:
does not pass by the Adams rule against finality.

[00:06:20] Speaker 03:
The remand was a non-final decision, and the appeal should be dismissed for lack of jurisdiction in this case.

[00:06:25] Speaker 03:
The only legal decision by the Veterans Court below was the decision that the Court had erred when it found there was a non-final decision in 2010.

[00:06:32] Speaker 03:
The Secretary conceded before the Veterans Court, and that issue is not under dispute right now.

[00:06:37] Speaker 03:
In order to satisfy the Williams criteria, that same legal decision must have been adverse to the party now seeking relief.

[00:06:45] Speaker 03:
But Mr Raven won on that issue.

[00:06:47] Speaker 03:
He won.

[00:06:48] Speaker 03:
He asked for that issue to be reversed and he won.

[00:06:51] Speaker 03:
Therefore that issue cannot solve the Williams Criterion.

[00:06:54] Speaker 03:
In that situation we have to look for another clear and final decision of a legal issue.

[00:06:59] Speaker 03:
And in the four page Veterans Court decision

[00:07:02] Speaker 03:
There is none.

[00:07:03] Speaker 03:
That is the only legal decision that the Veterans Court made.

[00:07:06] Speaker 03:
And following that, they found that there was ambiguity in the court below requiring a remand and to understand further what this sentence valid, that it was a valid fee agreement, actually meant.

[00:07:19] Speaker 03:
Now, we do believe there is ambiguity.

[00:07:20] Speaker 03:
The court wants to explore that.

[00:07:21] Speaker 03:
We're welcome to do so.

[00:07:23] Speaker 03:
But we believe that the court can quickly look at this case, determine that it does not satisfy the Williams criteria, and find that the court lacks jurisdiction over this appeal.

[00:07:31] Speaker 02:
You just indicated that the second factor is not satisfied.

[00:07:36] Speaker 02:
What about the third?

[00:07:37] Speaker 03:
Well, the third factor is not satisfied because it depends which claim we're looking at.

[00:07:42] Speaker 03:
In the briefs, Mr. Raven first of all raises this question about, well, he points to only a single legal decision, the one I just mentioned before, that the board erred regarding a final decision, that it wasn't when it actually was.

[00:07:56] Speaker 03:
There's no risk that that decision would not survive the remand because that decision will control the remand.

[00:08:03] Speaker 03:
I'm assuming that Mr. Raven is not going to appeal the decision that was in his favour and therefore if there's an issue with that decision later down the line, it can return again to the Veterans Court, it can return again to this court.

[00:08:15] Speaker 03:
So there's no risk that that issue will not survive the remand.

[00:08:18] Speaker 03:
In his brief Mr Raven argues that on 5104A the issue of whether he should have a fable of finding will not survive a remand.

[00:08:27] Speaker 03:
But that's simply not true.

[00:08:28] Speaker 03:
Mr Raven will be able to argue that 5104A does apply to his case before the board and if he loses on that issue he'll be able to appeal it to the Veterans Court and once again to this court when it's properly and rightly before this court.

[00:08:41] Speaker 03:
The Williams rule is not whether this issue could ever be before this court.

[00:08:44] Speaker 03:
It's whether the time is now and only now to look at this case.

[00:08:48] Speaker 03:
And this situation is simply just not the same as the case.

[00:08:54] Speaker 03:
If it was, no further questions?

[00:08:56] Speaker 02:
Thank you, Mr. Golden.

[00:08:58] Speaker 02:
Mr. Carpenter, this is from the Republic of Maine.

[00:09:08] Speaker 00:
I'd like to clarify the fact that the

[00:09:12] Speaker 00:
reference to remand by Mr. Raven in his opening brief was a reasons or basis remand on the question of whether or not there was a

[00:09:25] Speaker 00:
the board decision on the issue of TDIU.

[00:09:29] Speaker 00:
And he asked for reversal and only asked for that remand on a reasons or bases alternative that has nothing to do with the disposition of the question of that favorable finding.

[00:09:43] Speaker 00:
I would also direct the court's attention to the fact that this entire remand question is covered by a single paragraph

[00:09:53] Speaker 00:
at Appendix IV, in which the court essentially, sua sponte, raises the question of ambiguity.

[00:10:02] Speaker 00:
The issue of ambiguity, in our view, is inconsistent with the statutory provisions of 5104A, in which Congress expressly provided in a heretofore not available statutory provision to veterans

[00:10:20] Speaker 00:
that once an agency makes a favorable finding of fact in favor of the veteran, that that decision is binding on all future adjudicators.

[00:10:31] Speaker 00:
It doesn't say anything about the adjudicator getting an opportunity to decide whether or not he really meant that to be a favorable finding of fact.

[00:10:41] Speaker 00:
That's the only thing that can be explored on remand.

[00:10:45] Speaker 00:
And that goes beyond the disposition of the appeal.

[00:10:48] Speaker 00:
Either Mr. Raven has a right

[00:10:50] Speaker 00:
to judicial review, which includes reversal.

[00:10:55] Speaker 00:
Congress provided in 7252

[00:10:58] Speaker 00:
that remand, excuse me, reversal be made and remand only be made as appropriate.

[00:11:06] Speaker 00:
This is not an appropriate remand and should be addressed by this court as to whether or not it was in order to give finality to Mr. Raven on the favorable disposition of his appeals in which he established clear error of law by the board in the appeal below, unless there's further questions from the panel.