[00:00:00] Speaker 00:
We have three argued cases this morning the first is number 22 1869 of s versus McDonough Sunday May it please the court Amanda Sunday appearing on behalf of disabled veteran her BD fest the veterans courts air can be found in the appendix at page 7 where it states that ultimately

[00:00:25] Speaker 00:
Because the board addressed only the issue of whether the March 1972 filing constituted a notice of disagreement, and because the issue of defective notice was not within the scope of the appeal before the board, the court does not have jurisdiction to address that question.

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The Veterans Court confused its discretion to hear a novel legal argument with its jurisdiction to review a decision of the board.

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And the Secretary views the Veterans Court's decision as a proper discharge of jurisdiction under the issue-exhaustion doctrine.

[00:01:03] Speaker 00:
But this cannot be the case, because the Veterans Court's holding and the Secretary's position violate this Court's authority in Magyay v. West.

[00:01:13] Speaker 03:
Could we sort of get to the merits so we understand what the argument is?

[00:01:19] Speaker 03:
In the opening brief, you say that under our case law, that the failure to give notice of appeal rights renders the decision, the 1971 decision, non-final.

[00:01:36] Speaker 03:
As I read your reply brief, you're not pursuing that argument because the government points out that the 1971 regulation says that failure of notice does not create lack of finality.

[00:01:50] Speaker 03:
And you're arguing instead that the good cause exception applies.

[00:01:55] Speaker 03:
Am I reading your briefing correctly?

[00:01:59] Speaker 00:
Your Honor, yes, insofar as the opening brief and what position was contained there.

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In response to the secretary's argument that the regulations exten at the time did not provide for equitable tolling based on failure to provide appellate rights, Mr. Vest's position is that equitable tolling is not relevant to this case.

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And that is because the rating decision itself never became final.

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Thus, the one-year clock within which to file an appeal never began to run.

[00:02:28] Speaker 03:
You're not relying on the good cause exception?

[00:02:32] Speaker 00:
No, Your Honor.

[00:02:34] Speaker 03:
So what renders it non-final then?

[00:02:37] Speaker 00:
The failure to include appellate rights with the September 1971 decision.

[00:02:43] Speaker 03:
But the regulation from 1971 says that doesn't render it non-final.

[00:02:48] Speaker 00:
Your Honor, the regulation from 1971 is 38 CFR 3.103.

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And that does require notice of appellate rights be included with a final decision.

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The Secretary is referencing

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a separate provision, which pertains to equitable tolling, which would be the time in which to file an appeal from a final decision.

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So Mr. Vest is not invoking the good cause exception.

[00:03:15] Speaker 00:
His position would be just like in AG versus P, where this court took jurisdiction and presided over a substantial lease.

[00:03:22] Speaker 03:
Is your theory that the Secretary is misreading the 71 regulations?

[00:03:27] Speaker 00:
No, Your Honor, not that the Secretary is misreading them, but that that particular regulation for equitable tolling is not applicable.

[00:03:35] Speaker 00:
Because the 1971 decision never became final, just like the decision in AG, where this court reviewed the Veterans Court's decision, which only related to a theory of clear and unmistakable error, a collateral attack of an old rating decision, this court, sui sponte, reviewed the rating decision and found

[00:03:56] Speaker 00:
It did not comply with the same regulation extent in Mr. Vest's case in 1971.

[00:04:02] Speaker 00:
So it's not that equitable tolling would be invoked or the good cause requirement just as in AG.

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The decision itself never became final.

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And so when Mr. Vest filed with the agency in 2019, he was drawing the agency's attention to the fact that the old rating decision had not in fact become final.

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The agency denied Mr. Vest's claim.

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This is a denial of entitlement to an earlier effective date or retroactive compensation.

[00:04:30] Speaker 04:
So Mr.... Could I just ask a question about what's really going on here?

[00:04:36] Speaker 04:
The claim that we're talking about is the claim for compensation for tinnitus, right?

[00:04:42] Speaker 00:
Yes, Your Honor.

[00:04:43] Speaker 00:
OK.

[00:04:44] Speaker 04:
Now, in order for the board to operate on a claim, there has to be a nod.

[00:04:53] Speaker 04:
The nod is like a jurisdictional vesting document.

[00:05:00] Speaker 04:
There's been a holding that the February, actually March, they treat it as March 1972 letter from your client to the secretary did not constitute a nod as for tinnitus, correct?

[00:05:18] Speaker 00:
Yes, Your Honor.

[00:05:19] Speaker 04:
And you have not appealed that holding?

[00:05:25] Speaker 04:
You have not challenged that whole thing.

[00:05:27] Speaker 04:
In fact, the board, the CAVC, treated that point as being abandoned because you didn't challenge it.

[00:05:36] Speaker 00:
Yes, Your Honor.

[00:05:38] Speaker 04:
If there is no nod as to tinnitus, how can the board have made a mistake in not considering the finality?

[00:05:47] Speaker 04:
And how could, if there is no jurisdiction over the tinnitus claim at all at the BVA,

[00:05:54] Speaker 04:
As the CAVC held, there's no jurisdiction in it over that claim.

[00:06:01] Speaker 04:
And so why isn't the CAVC decision, which dismissed your appeal for one of jurisdiction, correct?

[00:06:11] Speaker 00:
The notice of disagreement conferring jurisdiction to the board was filed here in June 2020.

[00:06:17] Speaker 00:
So Mr. Vest approached the agency, evinced a belief that the 1971 rating decision had not become final.

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The theory was that there was a pending notice of disagreement filed in 1972.

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That's a theory of entitlement to an earlier effective date, much like defective notice, much like clear and unmistakable error.

[00:06:36] Speaker 00:
So that's simply a theory.

[00:06:38] Speaker 00:
So that theory was raised to the agency.

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The agency denied.

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In June 2020, Mr. Vest filed a notice of disagreement which vested jurisdiction in the board to preside over the matter of his entitlement to disability benefits for tinnitus.

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When the board denied, Mr. Vest appealed to the Veterans Court.

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So the Veterans Court was faced with a situation where it has, number one, a notice of disagreement filed on or after November 1988.

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It was filed in June 2020.

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The Veterans Court did not dispute that point.

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And number two, a final decision of the board.

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with respect to the larger matter of disability benefits for tinnitus.

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Because the board's jurisdiction was not limited solely to the theory of entitlement of whether a notice of disagreement was pending or not.

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The board is vested with jurisdiction to preside over all questions in a matter.

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When a veteran's objective is disability compensation, the matter is entitlement to disability benefits.

[00:07:39] Speaker 00:
So the board denied Mr. Vest's entitlement to disability benefits.

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So the Veterans Court had a notice of disagreement filed automatically.

[00:07:47] Speaker 04:
Well, you're arguing it's irrelevant that there never was a nod as to actually to the September, December issue.

[00:07:58] Speaker 03:
But you're saying that there was a nod in 2020 with respect to that.

[00:08:02] Speaker 03:
Yes, because in 2000- 50 years later.

[00:08:05] Speaker 00:
Well, because the agency's decision in 2019 rendered it final when the agency found there was no notice of disagreement.

[00:08:15] Speaker 00:
So that can be understood as a denial of entitlement to an earlier effective date.

[00:08:19] Speaker 00:
The agency said, no further word from us on the tinnitus issue.

[00:08:23] Speaker 00:
That document didn't constitute a notice of disagreement.

[00:08:26] Speaker 00:
No more action will be taken.

[00:08:27] Speaker 00:
That denial did not come until 2019, and it was appealed

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via the June 2020.

[00:08:34] Speaker 00:
Within one year, that was appealed to the board.

[00:08:37] Speaker 03:
So the board's jurisdiction was not limited to- Where do we find in the record the 2020 notice of disagreement?

[00:08:47] Speaker 00:
That would be in the appendix at page 65, Your Honor.

[00:08:51] Speaker 00:
65?

[00:08:52] Speaker 00:
Yes.

[00:08:53] Speaker 03:
Your Honor.

[00:09:07] Speaker 04:
Well, and the question is whether or not that the March 72 letter, actually it's a March 72 stamp on a February letter, right, whether that constituted a nod.

[00:09:20] Speaker 04:
And the answer was no.

[00:09:21] Speaker 04:
It's not a nod.

[00:09:22] Speaker 00:
Yes.

[00:09:23] Speaker 04:
And you don't appeal that.

[00:09:25] Speaker 03:
This doesn't seem to be a new nod.

[00:09:28] Speaker 03:
This seems to raise the question that Judge Clevenger just mentioned.

[00:09:34] Speaker 00:
Well, Your Honor, when?

[00:09:35] Speaker 00:
The veteran's objective is disability benefits.

[00:09:38] Speaker 00:
Specific language may be included in a notice of disagreement.

[00:09:41] Speaker 03:
But to be clear, there is no non that was filed with respect to the decision that you are seeking to review here now.

[00:09:55] Speaker 00:
Notice of disagreement, Your Honor, would be that nod that you are referencing.

[00:10:00] Speaker 03:
This conveying jurisdiction... Because it says whether the March 10 letter constitutes a nod.

[00:10:07] Speaker 00:
Yes, Your Honor, but this question is one question within the broader matter of entitlement to disability benefits.

[00:10:14] Speaker 00:
The board's jurisdiction empowers it to preside over all questions in a matter.

[00:10:19] Speaker 04:
The Veterans Court recognizes- To start off, the issue has to get in play with a nod.

[00:10:24] Speaker 04:
The whole subject matter, entitlement, effective date, whatever, for tinnitus, there has to have been a nod as to that claim in order for the BVA or the CAVC to operate on the subject matter.

[00:10:40] Speaker 04:
The subject matter includes the question of whether there was an effective notice.

[00:10:44] Speaker 04:
But there has been no nod with respect to the 72 letter.

[00:10:55] Speaker 04:
The only potential nod was the 72 letter, and it has been adjudicated not to be a nod.

[00:11:03] Speaker 04:
I mean, I might have agreed with that, but you chose not to challenge that.

[00:11:07] Speaker 04:
Can I just ask one question which puzzled me, which I think what

[00:11:10] Speaker 04:
Your prayer for relief to us is for us simply to vacate the CAVC decision, send it back, and tell them they have discretion to entertain the argument.

[00:11:22] Speaker 04:
And they should exercise that discretion one way or the other.

[00:11:25] Speaker 04:
That's your here.

[00:11:27] Speaker 04:
But the end game is you want an earlier effective.

[00:11:29] Speaker 04:
You want to get back to 1971 for an effective date for the 60% tonitis, right?

[00:11:35] Speaker 00:
Yes.

[00:11:35] Speaker 00:
How do you get there?

[00:11:38] Speaker 04:
Well, just like in a- Why does the fact that there was a claim filed with no evidence of any effective hearing loss as of that date, how can you get back to that earlier date?

[00:11:53] Speaker 00:
Your Honor, it's understood that this court is not in the business of applying the law to the facts of a given case.

[00:12:00] Speaker 04:
This is outside the scope.

[00:12:02] Speaker 04:
I'm just trying to understand how the argument is put together.

[00:12:06] Speaker 04:
if you are able to establish that there was no notice as to the appeal rights?

[00:12:14] Speaker 00:
Your Honor, AG versus Peak does provide the Veterans Court with a roadmap of what it could and should have done in Mr. Vest's case.

[00:12:23] Speaker 04:
And that is because in AG... But to get the earlier effect, there has to be some merits connection with the degree of disability and all that, doesn't there have to be?

[00:12:32] Speaker 00:
Yes, Your Honor.

[00:12:33] Speaker 00:
So in 1971, a decision was issued granting service connection for tinnitus, but assigning a non-compensable disability rating.

[00:12:43] Speaker 00:
Yes, Your Honor.

[00:12:43] Speaker 00:
And so if, in fact, that decision is viewed as not having become final, the agency would be able to look at the evidence from now back to 1971.

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And this could include any new evidence that may come in the record.

[00:12:56] Speaker 00:
to potentially look at an increased disability rating for that period.

[00:13:01] Speaker 00:
So the objective is retroactive compensation.

[00:13:04] Speaker 04:
I understand that.

[00:13:04] Speaker 00:
Yes, Your Honor.

[00:13:05] Speaker 00:
And so, just as in AG vs. Peak, the only theory that had been raised before the agency, before the Board of Veterans' Appeals, was one of clear and unmistakable error.

[00:13:15] Speaker 00:
This court recognized that it was within its jurisdiction as a federal court

[00:13:19] Speaker 00:
to Sue Espante review it and say that the original rating decision had not been confiable.

[00:13:24] Speaker 04:
But in that case, there had been, at some point in time, a nod as to the subject matter of the case.

[00:13:31] Speaker 04:
But in this case, from my perspective, you're burdened with a decision that there has never been a nod with respect to tinnitus.

[00:13:41] Speaker 04:
And if there's never been a nod with respect to tinnitus, the board has nothing to operate on within the overall subject matter, and neither does the CAVC.

[00:13:52] Speaker 03:
There's no claim pending under those circumstances.

[00:13:54] Speaker 03:
It's not a question

[00:13:57] Speaker 03:
Ignoring a new argument.

[00:13:59] Speaker 00:
It's just it's saying you don't have jurisdiction unless it's a claim has been perfected Yes, your honors, but the board is the arbiter of its own jurisdiction And the board would never have been able to dock it mr. Vest appeal where there no notice of disagreement vesting jurisdiction with Just think about what you're doing you have a situation here We're in 2014 or 15 or 16 the veteran came in later and then was able to establish based on a

[00:14:25] Speaker 04:
here in condition at that time and shortly before, an entitlement to a 60% rating.

[00:14:30] Speaker 04:
And what you're in essence saying is that for someone who has never filed a nod, let's assume that factually the March 72 letter didn't exist, because that's what the holding is, that it's nothing as to a nod.

[00:14:46] Speaker 04:
So in your theory of the case, a veteran can come in 25, 30 years later, or whatever, get a 60% rating, and then

[00:14:54] Speaker 04:
go back and say, oh, well, there was something that happened earlier that wasn't a nod, didn't put the issue in play.

[00:15:04] Speaker 04:
But 20 years later, I'm putting an issue in play, and you get a backward sweep through the records all the way back.

[00:15:10] Speaker 04:
I think that's affecting what you're arguing, correct?

[00:15:14] Speaker 00:
Yes, Your Honor.

[00:15:15] Speaker 00:
And per the Veterans Court's authority, a contention that an old rating decision never became final is outside of the ambit of an illicit freestanding finality claim.

[00:15:26] Speaker 00:
So Mr. Vest's position is that his claim was not subsumed within a 2016 decision.

[00:15:32] Speaker 00:
That granted service connection for Meniere's disease.

[00:15:35] Speaker 00:
But the claim in 1971 was for tinnitus.

[00:15:38] Speaker 00:
And so when he came to the agency- Well, Meniere's and tinnitus.

[00:15:42] Speaker 00:
Yes, Your Honor, and hearing loss as well, which the board found that the hearing loss claim from 1971 had never become final.

[00:15:50] Speaker 00:
And the board would not have been able to make that finding if Mr. Vest's claim were in fact a freestanding finality claim.

[00:15:56] Speaker 00:
So it was the board's denial that vested jurisdiction within the Veterans Court to consider its denial of entitlement to benefits.

[00:16:05] Speaker 03:
If a claim is not final,

[00:16:07] Speaker 03:
Is there still a requirement to file a notice of disagreement in order to bring the case up for an appeal?

[00:16:18] Speaker 00:
In order to bring the case up for an appeal, there must be, yes, Your Honor, some sort of.

[00:16:23] Speaker 03:
And the only way that the only NOD that you're relying on is the one at 65, Appendix 65?

[00:16:31] Speaker 00:
Yes, Your Honor, that is correct.

[00:16:33] Speaker 00:
We know from in Maget versus West that a decision of the board is binary.

[00:16:39] Speaker 00:
It is one in which benefits are granted or benefits are denied.

[00:16:43] Speaker 00:
The theory of a pending notice of disagreement is not a benefit.

[00:16:46] Speaker 00:
The board cannot deny that.

[00:16:48] Speaker 00:
The board denies benefits.

[00:16:51] Speaker 00:
And that is merely a theory of entitlement.

[00:16:53] Speaker 00:
So the board was vested with jurisdiction over the matter of entitlement to retroactive compensation for tinnitus.

[00:17:01] Speaker 00:
So when the board denied Mr. Vest's appeal, there was no indication any further action would be taken with respect to the tinnitus claim.

[00:17:08] Speaker 00:
When he appealed to the Veterans Court, the Veterans Court had jurisdiction to preside over the matter of entitlement to disability benefits for tinnitus.

[00:17:17] Speaker 00:
So it had jurisdiction.

[00:17:19] Speaker 00:
Whether it wanted to entertain a novel legal theory that was presented before it

[00:17:24] Speaker 00:
is a downstream question.

[00:17:26] Speaker 03:
OK, I think we're out of time.

[00:17:28] Speaker 03:
Can I just ask a question?

[00:17:29] Speaker 03:
Go ahead, sure.

[00:17:29] Speaker 00:
Yes.

[00:17:31] Speaker 02:
When you filed your letter arguing that the March 72 letter was a nod to the September 71 determination, isn't that necessarily premised on the view at the time that the September 71 determination was final?

[00:17:53] Speaker 02:
So I guess what I'm wondering is why were you pressing the idea that that September 71 determination was final when you were arguing that March 72 letter was a nod to the VA and then to the board.

[00:18:10] Speaker 02:
But then when you got to the veterans board and you appealed the board's determination, you kind of switched forces and now said, oh, well, you know,

[00:18:22] Speaker 02:
There never could have been a legitimate nod by me because there never was a final determination in September of 71.

[00:18:29] Speaker 02:
So I can't quite follow what your strategy was.

[00:18:36] Speaker 00:
Yes, Your Honor.

[00:18:37] Speaker 00:
And speaking as counsel for the entirety of all of these pleadings and filings, at the Veterans Court, a second review of the record revealed that the decision itself had not become final.

[00:18:49] Speaker 00:
that it did not include appellate rights.

[00:18:51] Speaker 00:
That was not ascertained in 2019 when the contention was made that there was a pending notice of disagreement.

[00:18:57] Speaker 02:
So if it was non-final, then there never could have been a legitimate notice of disagreement.

[00:19:05] Speaker 00:
Well, the board viewed a notice of disagreement as pending with respect to a different decision.

[00:19:09] Speaker 00:
But yes, Your Honor, there could not have been a notice of disagreement filed within one year.

[00:19:14] Speaker 00:
The notice of disagreement was properly filed in June 2020.

[00:19:17] Speaker 02:
And the board could never have had jurisdiction over the tinnitus claim, because there was never a legitimate nod.

[00:19:28] Speaker 00:
Well, Your Honor, in 2019, when Mr. Vest approached the agency evincing a belief this rating decision had not become final, this is a claim for disability benefits for retroactive compensation.

[00:19:39] Speaker 00:
And per the Veterans Court's authority,

[00:19:42] Speaker 00:
If all theories pertain to the same benefit for the same disability, it is the same claim.

[00:19:48] Speaker 00:
So a pending notice of disagreement is a theory within the claim of entitlement to disability benefits.

[00:19:55] Speaker 00:
When Mr. Vest changed hack at the Veterans Court and argued that the decision did not contain appellate rights, so there was defective notice,

[00:20:06] Speaker 00:
This is another theory pertaining to the same benefit for the same disability.

[00:20:12] Speaker 03:
I understood what you said earlier.

[00:20:13] Speaker 03:
You still have to file, eventually, a notice of disagreement, correct?

[00:20:17] Speaker 00:
Yes, Your Honor.

[00:20:18] Speaker 03:
And you say that A65 is that notice of disagreement.

[00:20:23] Speaker 03:
And if we disagree with you and say that A65 is not a sufficient notice of disagreement, you lose, right?

[00:20:32] Speaker 00:
Well, Your Honor, the Veterans Court, in its decision,

[00:20:36] Speaker 00:
made the finding that it's bound by all things.

[00:20:38] Speaker 03:
No, no, answer my question.

[00:20:39] Speaker 03:
Yes or no?

[00:20:42] Speaker 00:
If this court were to find that the June 2020 notice of disagreement is procedurally invalid.

[00:20:49] Speaker 03:
Or doesn't raise this issue.

[00:20:54] Speaker 03:
It's not a sufficient notice of disagreement.

[00:20:57] Speaker 03:
You lose, right?

[00:21:02] Speaker 00:
If this court were to find that, yes, your honor.

[00:21:05] Speaker 00:
However, that would go against this court's jurisprudence in AG where it solely reviewed a theory of clear and unmistakable error and that was it.

[00:21:14] Speaker 00:
There, Appellants' Council only raised Q to the agency.

[00:21:18] Speaker 00:
That was the only decision, was no Q. It went to the Veterans Court, said Q. Veterans Court said no Q. On appeal to this court, this court was able to look at the decision in the first instance and find there was, in fact, effective notice.

[00:21:30] Speaker 00:
OK.

[00:21:31] Speaker 03:
I think we're about out of time.

[00:21:33] Speaker 03:
Let's move to the question.

[00:21:34] Speaker 03:
We'll give you two minutes or more.

[00:21:36] Speaker 00:
Thank you, Your Honor.

[00:21:52] Speaker 03:
Good morning.

[00:21:53] Speaker 03:
Good morning.

[00:21:54] Speaker 03:
Do you agree that A65 is not a sufficient notice of disagreement?

[00:21:58] Speaker 01:
Yes, your honor.

[00:21:59] Speaker 01:
I agree.

[00:22:00] Speaker 01:
And I agree that it also means there's no jurisdiction.

[00:22:01] Speaker 04:
But what are the consequences then?

[00:22:05] Speaker 04:
Is there any jurisdiction in the board over the tinnitus claim?

[00:22:11] Speaker 01:
So the tinnitus claim, at this point in the board, no, your honor.

[00:22:14] Speaker 01:
I don't think so.

[00:22:14] Speaker 01:
I think it would have to be acute.

[00:22:16] Speaker 04:
What we're talking about here is a tinnitus claim.

[00:22:20] Speaker 04:
for which Mr. Best has actually been granted service connection and a 60% rating at a later stage in the game.

[00:22:27] Speaker 04:
But this is all an earlier stage, right?

[00:22:29] Speaker 01:
Yes, Your Honor.

[00:22:30] Speaker 04:
So if indeed there is no nod that is existing on the tinnitus claim in order to allow the argument about the defective notice, right?

[00:22:43] Speaker 04:
And then there's no jurisdiction in the board to have dealt with that.

[00:22:47] Speaker 04:
Then there's no jurisdiction in the CAVC to deal with that, correct?

[00:22:50] Speaker 04:
Correct, Your Honor.

[00:22:52] Speaker 04:
And the CAVC posited its decision on jurisdiction and dismissed, right?

[00:23:02] Speaker 04:
It didn't affirm the decision and dismissed.

[00:23:05] Speaker 04:
And yet, in your brief to the CAVC, you said that court had jurisdiction.

[00:23:11] Speaker 04:
And you're arguing to us that they continue to have jurisdiction, and they had discretion to entertain this argument if they wished, and they elected not.

[00:23:22] Speaker 04:
Right?

[00:23:22] Speaker 01:
Yes, Your Honor.

[00:23:23] Speaker 01:
That was the argument I agreed.

[00:23:24] Speaker 04:
Yeah, but I understand that.

[00:23:26] Speaker 04:
First place, show me somewhere in the CAVC decision where they indicated they were exercising discretion not to hear the argument, as opposed to saying we don't have jurisdiction to reach it.

[00:23:39] Speaker 04:
Can you walk me through the CAVC decision?

[00:23:42] Speaker 01:
Yes, Your Honor.

[00:23:43] Speaker 01:
So that's pages 5 to 7.

[00:23:44] Speaker 01:
And I would agree that it doesn't say we're exercising our discretion.

[00:23:48] Speaker 01:
Those words aren't in there.

[00:23:49] Speaker 04:
What language from 5 to 7 indicates the exercise of discretion?

[00:23:56] Speaker 01:
So Your Honor, we read that the first is the Magic case, of course, which deals with the discretionary issue.

[00:24:03] Speaker 01:
Oh, there was another file in that case.

[00:24:06] Speaker 01:
Yes, and upon further reflection, even if you look at that in the appendix at 7, there's a reference to page 1376 of Magic, which is actually a discussion of Ledford.

[00:24:14] Speaker 04:
Let me come back and push it a little harder.

[00:24:16] Speaker 04:
Are you now arguing that we should affirm the case on the grounds that there was no jurisdiction here?

[00:24:25] Speaker 01:
Yes, Your Honor.

[00:24:25] Speaker 04:
Is this a merits matter?

[00:24:27] Speaker 01:
No, I think it's a jurisdictional matter, Your Honor.

[00:24:29] Speaker 01:
Because a nod was never filed.

[00:24:31] Speaker 01:
That's right, Your Honor.

[00:24:33] Speaker 04:
Okay.

[00:24:33] Speaker 04:
So you see where I'm coming from.

[00:24:37] Speaker 04:
I mean, the VA made one.

[00:24:39] Speaker 04:
You made one argument to the CAVC saying you have jurisdiction.

[00:24:43] Speaker 04:
And now you're telling me that you agree that CAVC disagreed with you and felt we didn't have jurisdiction.

[00:24:50] Speaker 04:
Secondly, you make a big implicit denial argument.

[00:24:53] Speaker 04:
You say, we shouldn't worry about this anyhow because it's been implicitly denied.

[00:24:58] Speaker 04:
And you say in your brief that the board, the CAVC, held that there was a dismissal of implicit denial.

[00:25:05] Speaker 04:
Please show me in the CAVC's decision where they made that holding.

[00:25:10] Speaker 01:
So in that opinion, that's on pages 6 to 7 when it talks about the finality of it.

[00:25:15] Speaker 01:
So it doesn't say this is implicitly denied.

[00:25:16] Speaker 01:
It talks about the finality of the July 2016.

[00:25:19] Speaker 04:
Well, then how can you say in your brief they held that?

[00:25:23] Speaker 01:
I'm sorry, Your Honor.

[00:25:24] Speaker 01:
I would have to look at the specific language.

[00:25:30] Speaker 03:
I don't understand the whole basis for the implicit denial argument.

[00:25:33] Speaker 03:
The theory is there's no claim that was ever perfected.

[00:25:36] Speaker 03:
So I don't understand how it could be implicitly denied.

[00:25:39] Speaker 01:
Well, so I think that was mainly the alternative.

[00:25:41] Speaker 01:
If there is a pending claim from September 1971, even if there were, it would have been implicitly denied with a grant of service connection at 60% effective December 10, 2015.

[00:25:51] Speaker 01:
I think you have other cases like Williams and Monroe where they talk about those issues and say if it's an identical claim, then it's implicitly not.

[00:25:58] Speaker 03:
But Judge Clevenger is right that the CAVC never addressed that.

[00:26:02] Speaker 01:
Yes, Your Honor.

[00:26:06] Speaker 04:
It just troubled me because I think your brief at page 20 was where in particular you said, well, yes, there's been a holding of implicit denial.

[00:26:15] Speaker 01:
Your Honor, my apologies if we overstated that.

[00:26:18] Speaker 04:
Well, you need to do more than apologize, I think, in a way, because it's suggested to me that the VA is worried, that they're afraid that there's some merit here when you are bouncing back and forth as to whether there's a merits case here or whether there's a jurisdictional case.

[00:26:36] Speaker 04:
And then when you manufacture a holding that just doesn't exist, it made me think, oh, you're a little frightened, right?

[00:26:47] Speaker 01:
Your Honor, I wouldn't say you were frightened, no, Your Honor.

[00:26:52] Speaker 01:
It's just an argument made.

[00:26:54] Speaker 04:
It's sort of strange here, because there was a live tinnitus claim in the system at some point in time, because an award of 60% was given, correct?

[00:27:11] Speaker 04:
Yes, Your Honor.

[00:27:13] Speaker 04:
And that came up.

[00:27:17] Speaker 04:
from a decision by an RO, right?

[00:27:20] Speaker 04:
And the award was granted.

[00:27:23] Speaker 04:
Now, at one point in time, Vest says somewhere in his briefs that they actually found a nod on the 2016 60% rating.

[00:27:30] Speaker 04:
Yes, Your Honor.

[00:27:34] Speaker 04:
So there's in the system a claim for tinnitus that had a nod, right?

[00:27:42] Speaker 01:
Yes, Your Honor.

[00:27:43] Speaker 04:
And that's operating here.

[00:27:46] Speaker 04:
So I think basically what Vest is trying to argue is that that fact that the tinnitus claim has been nodded into the system, from the RO to the BVA, hasn't been to the CAVC, but they think it's there.

[00:28:02] Speaker 04:
But that's sufficient in order to take AG Peek and go sweep backwards.

[00:28:08] Speaker 04:
Because AG Peek, in essence, says,

[00:28:11] Speaker 04:
sort of the worst thing you can possibly do is fail to get a notice of appeal rights.

[00:28:17] Speaker 04:
I mean, that's the feeling, because in AG Against Peak, we reached out to a spawning, right?

[00:28:23] Speaker 04:
Yes, Your Honor.

[00:28:26] Speaker 04:
So why isn't the existence of the claim upon which relief has been given 60%, why isn't that just sufficient to keep alive all this argument they're making about defective notice?

[00:28:40] Speaker 01:
So I think two things there, Your Honor.

[00:28:42] Speaker 01:
The first is that with AGV Peak, there was no jurisdictional holding.

[00:28:45] Speaker 01:
I went back and looked at the Veterans Court decision, and it appeared that the court had jurisdiction to address those issues.

[00:28:51] Speaker 01:
So it's kind of different in that respect.

[00:28:53] Speaker 04:
Well, it's not.

[00:28:53] Speaker 04:
There was a nod.

[00:28:54] Speaker 01:
Yes, exactly.

[00:28:55] Speaker 04:
But what I'm saying is there has been a nod somewhere in the system for tinnitus.

[00:29:01] Speaker 01:
Yes, Your Honor.

[00:29:03] Speaker 01:
But that decision, the November 28 decision that eventually affirmed the July 2016 decision, became final.

[00:29:09] Speaker 01:
There was no NOD with respect to that 2018 decision.

[00:29:12] Speaker 04:
There was no request for an earlier effective date for that award based on the ground that there had been a defective notice of lack of finality, yada yada, right?

[00:29:23] Speaker 01:
Precisely, Your Honor.

[00:29:23] Speaker 01:
That would have been the time on direct appeal to advance those arguments.

[00:29:27] Speaker 01:
to say we're actually entitled to an early effective date.

[00:29:29] Speaker 04:
In this case, both the board and the CAVC said, well, there is a remedy here for Mr. Vest.

[00:29:36] Speaker 04:
Can you explain to me what the theory of that remedy is?

[00:29:41] Speaker 01:
Yeah.

[00:29:41] Speaker 01:
So I think on the last page of the Veterans Court decision, it says, if you want to go back to the regional office and present this claim in the first instance about the finality, that you can do that and then proceed through the normal appellate procedure.

[00:29:53] Speaker 03:
Now, raising it would be filing a not.

[00:29:58] Speaker 01:
With respect to the, yes.

[00:29:59] Speaker 04:
Well, you would raise it with the RO, the RO would turn you down, and then you would nod the turndown.

[00:30:04] Speaker 01:
Yes.

[00:30:05] Speaker 01:
Yes.

[00:30:06] Speaker 01:
But yes, you'd go back to the regional office and file the claim in the first instance.

[00:30:11] Speaker 01:
So that's what they suggested.

[00:30:12] Speaker 04:
And it would be an AG peak type argument at the RO?

[00:30:15] Speaker 01:
And then they could flesh out all these disputes about, you know, tolling of tolling and those issues from the 1971 applicable regulations.

[00:30:23] Speaker 01:
Yes.

[00:30:23] Speaker 04:
And then we've got this regulation that says basically you're out of luck, right?

[00:30:28] Speaker 01:
That's the implication of the regulation in our reading.

[00:30:30] Speaker 04:
That's the thing that the President and Judge mentioned initially.

[00:30:32] Speaker 01:
Yes, Your Honor.

[00:30:33] Speaker 04:
And then apparently the agency has been uneven in application of that regulation.

[00:30:40] Speaker 04:
They've enforced it sometimes, but not otherwise, right?

[00:30:43] Speaker 01:
So I'm aware of board decisions where they enforced it, Your Honor.

[00:30:46] Speaker 01:
I guess I didn't see the opposite.

[00:30:50] Speaker 03:
So you're basically... By the time of AG, the regulation had been changed.

[00:30:55] Speaker 01:
Yes, Your Honor.

[00:30:56] Speaker 01:
It was changed effective January 1st, 1980.

[00:30:59] Speaker 01:
So it would have been repealed in 83, and that would have been effective as of January 1st, 1980.

[00:31:02] Speaker 04:
But from the point of view of where you are standing talking to us now, you're telling us we should affirm on the grounds that there was no jurisdiction.

[00:31:11] Speaker 04:
which is the basis, which is the way the decision is written by the CAVC, correct?

[00:31:16] Speaker 01:
Yes, Your Honor.

[00:31:17] Speaker 04:
But you're no longer arguing to us that the CAVC properly exercised its discretion to refuse to hear the argument.

[00:31:26] Speaker 01:
So that was our original take of the opinion.

[00:31:28] Speaker 01:
I understand the court's point.

[00:31:29] Speaker 01:
I understand Mr. Vest's points.

[00:31:31] Speaker 01:
Looking at it again.

[00:31:31] Speaker 04:
I'm just trying to get clear that if we wrote a big opinion here and said exactly what had happened,

[00:31:37] Speaker 04:
The government at oral arguments shifted grounds and asked us to treat the case differently than the way their brief asked us to treat the case.

[00:31:45] Speaker 01:
Yes, Your Honor, I'd be happy to submit a supplemental brief, you know, if that would be helpful to the court in terms of with respect to 1752 and the jurisdictional issues.

[00:31:54] Speaker 03:
Your position now is there was no jurisdiction because a nod with respect to the September 1971 decision had never been fought.

[00:32:05] Speaker 01:
Yes, Your Honor.

[00:32:06] Speaker 01:
There's no jurisdiction, especially when you look at the Veterans Court.

[00:32:11] Speaker 01:
That jurisdiction is based on a decision of the board.

[00:32:13] Speaker 01:
And that comes from the nod, as the court's been saying.

[00:32:15] Speaker 01:
And it just wasn't there.

[00:32:16] Speaker 01:
There was no decision on the board at that point, because it was never raised.

[00:32:23] Speaker 01:
Again, I'm happy to submit a supplemental brief.

[00:32:25] Speaker 04:
What was the CNBC trying to tell us when they said, we'll dismiss this portion of the appeal?

[00:32:30] Speaker 04:
I'm looking at Appendix 7 in the decision.

[00:32:44] Speaker 04:
They're talking here, the 72-filing was not a nod.

[00:32:49] Speaker 04:
OK?

[00:32:51] Speaker 01:
Yes, Your Honor.

[00:32:52] Speaker 04:
And he abandoned that issue, because when he got to the CAVC, he was no longer making the argument that he had made to the board.

[00:33:00] Speaker 00:
Yes, Your Honor.

[00:33:01] Speaker 04:
Was there an effective nod?

[00:33:03] Speaker 04:
So the court will dismiss this portion.

[00:33:05] Speaker 04:
Well, what portion of the appeal that was abandoned?

[00:33:10] Speaker 04:
What portion of the appeal was not abandoned?

[00:33:14] Speaker 01:
So I read that based on the Mr. Vest therefore abandoned the issue, whether the March 1972 following was a nod with the VA initial decision concerning tinnitus.

[00:33:22] Speaker 01:
Tinnitus has to refer to the September 1971 decision.

[00:33:26] Speaker 01:
So I think that's just stated again.

[00:33:27] Speaker 01:
That's been abandoned, and they dismissed that portion of the appeal.

[00:33:31] Speaker 04:
Right.

[00:33:32] Speaker 04:
But I mean, basically, that's all that has to be written in their decision to deal with the case.

[00:33:40] Speaker 04:
I agree, Your Honor, and I think that's where some of the... Well, they're just puzzled, because there's just the same way that there was more in your brief than I thought needed to be there to decide the case.

[00:33:50] Speaker 01:
Yes, Your Honor.

[00:33:50] Speaker 04:
There's more in this decision, it seems to me, that needs to decide the case.

[00:33:55] Speaker 04:
Yes, Your Honor.

[00:33:56] Speaker 04:
If there's no nod, there's no game.

[00:34:00] Speaker 01:
Yes, Your Honor, I agree.

[00:34:01] Speaker 01:
And I think in this case, one led to the other.

[00:34:08] Speaker 04:
I don't have any further questions.

[00:34:10] Speaker 03:
Anything further?

[00:34:17] Speaker 01:
If there's nothing further than yes, Your Honor, I would just affirm that yes, we believe this case can be dismissed as there's no jurisdiction to the Veterans Court.

[00:34:24] Speaker 01:
That was the proper decision of the Veterans Court, and it can be affirmed on those grounds.

[00:34:28] Speaker 01:
Thank you.

[00:34:29] Speaker 03:
Thank you.

[00:34:31] Speaker 03:
Ms.

[00:34:31] Speaker 03:
Sunday, you have two minutes.

[00:34:50] Speaker 00:
The February 2020 regional office decision finding that there was no pending notice of disagreement, therefore the claim had been finally adjudicated, signaled to Mr. Vest that no further action could be taken on his entitlement to disability benefits for tinnitus.

[00:35:06] Speaker 00:
When he filed a notice of disagreement with that decision in June 2020, his filing met all of the requirements for a notice of disagreement under 38 USC section 7105.

[00:35:17] Speaker 00:
Using a form prescribed by the secretary, Mr. Vest indicated disagreement with the determination of disability benefits for tinnitus.

[00:35:26] Speaker 00:
This vested jurisdiction in the board.

[00:35:29] Speaker 00:
If the notice of disagreement were in any way insufficient on the matter of tinnitus, the board could never have substantively entertained Mr. Vest's arguments, which it did.

[00:35:39] Speaker 00:
The Veterans Court then, in accordance with Knowles, would have had to vacate ultra-viruses any substantive entertainment of Mr. Vest's tinnitus argument

[00:35:48] Speaker 00:
that the board had within its decision.

[00:35:50] Speaker 00:
But the Veterans Court did not.

[00:35:52] Speaker 00:
And that is because the question of whether a notice of disagreement was pending, the question of defective notice, these are theories of entitlement pertaining to retroactive compensation for tinnitus.

[00:36:07] Speaker 00:
And so just as the board was empowered to decide all questions within that matter.

[00:36:14] Speaker 04:
Well, my problem is I think

[00:36:17] Speaker 04:
that what you pointed to at page 65 in the appendix as the hook to keep your case alive, which raised the question of whether that letter constituted a nod and thus whether the nod remains pending, right, is an inartful way to express, I think, what you had in mind, which was to say in your specific issue in 2020,

[00:36:46] Speaker 04:
was whether you were entitled to an earlier effective date for your award of compensation on tinnitus because you believe that the claim you made back in 71 was never finally adjudicated.

[00:37:02] Speaker 04:
It wasn't final because no notice of appeal rights had been given to you.

[00:37:07] Speaker 04:
I think that's really what that nod, what these words you're saying, these words were meant to convey, right?

[00:37:14] Speaker 04:
If you had written those words, if the 2000 nod you're pointing to had said just what I said, we're asking for an earlier effective date because of an absence of finality with a decision earlier because of the ag peak, right?

[00:37:33] Speaker 04:
If you'd said that, we would be talking about a different case, wouldn't we?

[00:37:38] Speaker 00:
No, Your Honor, because presumably the same notice of disagreement in AG solely said whether there was Q in a 1981 decision.

[00:37:46] Speaker 04:
And so... But this doesn't say whether there was Q. Well, Your Honor, that's... That's the same, what the nod said in AGP, I think, is for that case comparable to what the argument you're making here.

[00:38:01] Speaker 00:
Your Honor, that's meant to be used as an example that a specific language evincing a theory of entitlement does not limit the board to reviewing that theory.

[00:38:12] Speaker 00:
So if an appellant were to write direct service connection for tinnitus, the appellant- Let me help you a little bit more.

[00:38:20] Speaker 04:
Part of your argument is that the 1972 letter couldn't have constituted a nod

[00:38:29] Speaker 04:
because there was nothing to nod from because there wasn't a final decision.

[00:38:34] Speaker 04:
That's the argument you frame in your briefs, right?

[00:38:38] Speaker 00:
That in 2019, that determination could be appealed.

[00:38:43] Speaker 00:
The determination that there was no notice of disagreement pending, that vested jurisdiction in the board.

[00:38:49] Speaker 00:
And again, the board would not have been able to dock at the appeal if there were no notice of disagreement conferring jurisdiction.

[00:38:55] Speaker 00:
The Veterans Court noted in its decision that the board rightfully took jurisdiction over the appeal.

[00:39:02] Speaker 00:
So there was no issue that was ascertained at the board or at the Veterans Court related to no jurisdiction comparing.

[00:39:10] Speaker 04:
Well, I mean, that's clearly the hearing.

[00:39:11] Speaker 04:
The original filing clearly was a nod as to the hearing loss, and that's been found and not disputed.

[00:39:18] Speaker 04:
The question is whether or not it carried with it a nod to a second claim to NIDUS.

[00:39:23] Speaker 00:
which the Veterans Court found that that was the issue before the court.

[00:39:27] Speaker 04:
So the BVA clearly had jurisdiction initially to decide the scope of the knot.

[00:39:34] Speaker 04:
Yes.

[00:39:34] Speaker 04:
And they decided that favorably to your client as to the hearing loss, unfavorably as to tinnitus.

[00:39:40] Speaker 00:
Yes, Your Honor.

[00:39:41] Speaker 00:
And with that unfavorable decision, that can only be viewed as a denial of benefits.

[00:39:47] Speaker 00:
If it's not a denial of benefits, it's

[00:39:50] Speaker 00:
It's something I would fit outside of the maje rubric of a final decision of the board is one in which benefits are granted or benefits are denied.

[00:39:59] Speaker 00:
And with respect to tinnitus, it was not a remand.

[00:40:01] Speaker 00:
It was not a referral.

[00:40:02] Speaker 00:
It was not some sort of interlocutor.

[00:40:04] Speaker 04:
Right, but that goes to the merits of the question of whether or not the filing was a nod as to tinnitus.

[00:40:10] Speaker 00:
Yes, Your Honor.

[00:40:11] Speaker 00:
However, Ledford v. West does not stand for the notion that appellants can so effectively water down their claim via specific language included in appeal that they're no longer even seeking benefits.

[00:40:24] Speaker 04:
If I had been a board member or a CAVC member, I might have looked at that filing and said, yes, this is a sufficient nod as to tinnitus.

[00:40:35] Speaker 04:
But it's too late to do that, and that isn't the gravamen of your appeal to the CAVC or to us.

[00:40:46] Speaker 00:
Sadly.

[00:40:47] Speaker 00:
On authority from the Veterans Court, appellants can't limit the issue to where they're no longer even seeking a benefit.

[00:40:54] Speaker 00:
So in Bernard v. Brown, the appellant's position was that the only issue was whether new and material evidence had been presented.

[00:41:01] Speaker 00:
And the Veterans Court corrected the appellant and said, no, it's broader.

[00:41:04] Speaker 00:
It's the matter of entitlement to disability benefits, because it is axiomatic.

[00:41:08] Speaker 03:
But this looks like a freestanding finality claim, which Knowles and other cases say doesn't exist.

[00:41:15] Speaker 03:
You have to perfect it in a way to bring it up.

[00:41:18] Speaker 03:
And you seem to agree that the way to perfect it is to file a notice of disagreement.

[00:41:23] Speaker 03:
And if we don't find that you did that, then there's no jurisdiction in the Veterans Court.

[00:41:29] Speaker 00:
Well, if this were a freestanding finality claim, Your Honor, the board would not have been able to make the favorable determination with respect to the hearing loss issue.

[00:41:38] Speaker 00:
And the Veterans Court was bound by that.

[00:41:40] Speaker 03:
No, because there was an NOD with respect to that.

[00:41:45] Speaker 03:
The March filing was found to be a NOD as to hearing loss.

[00:41:51] Speaker 00:
Yes, Your Honor, but that was not the notice of disagreement that the board found conveyed jurisdiction upon it.

[00:41:57] Speaker 00:
It was the 2020 appeal that conveyed jurisdiction to the board to look at the matter of entitlement to disability benefits for tinnitus and to entertain that one theory.

[00:42:10] Speaker 00:
When the board decided that tinnitus issue unfavorably, this was a denial of benefits.

[00:42:15] Speaker 00:
When Mr. Vest appealed that to the court, the court was empowered to preside over the matter before the board, entitlement to disability benefits.

[00:42:24] Speaker 00:
And when he presented a novel argument to it,

[00:42:27] Speaker 00:
the Veterans Court had jurisdiction over the appeal and had jurisdiction to entertain the argument, it was ultimately up to its discretion a downstream inquiry as to whether it wanted to substantively rule on that argument or not.

[00:42:43] Speaker 03:
OK, I think we're out of time.

[00:42:45] Speaker 03:
Let's go to questions here.

[00:42:45] Speaker 03:
Thank you.

[00:42:46] Speaker 00:
Thank you.

[00:42:46] Speaker 03:
Thank you, counsel.

[00:42:48] Speaker 03:
The case is submitted.