[00:00:00] Speaker 03:
Person with number 22, there is 2082.

[00:00:04] Speaker 03:
Lucas versus McDonough.

[00:00:07] Speaker 03:
Okay, Mr. de Hockless.

[00:00:11] Speaker 02:
Good morning, your honor.

[00:00:17] Speaker ?:
Okay.

[00:00:22] Speaker 02:
Good morning, may it please the court.

[00:00:24] Speaker 02:
On behalf of Mr. Biggis, I want to thank this court for the opportunity to present his appeal.

[00:00:30] Speaker 02:
With this appeal, we asked the court to find that the Veterans Court committed two errors and would have determined that his claim did not reasonably raise a rating for his hearing loss disability under 38 U.S.C.

[00:00:43] Speaker 02:
3.321b.

[00:00:45] Speaker 02:
Importantly, this is not, as the government and the Veterans Court has framed the issue, an issue with an entitlement to a rating under this regulation.

[00:00:54] Speaker 02:
Here is this court to recognize that the Veterans Court, by requiring that he identify something exceptional about his disability, overstepped the question presented, which was whether the board is required to discuss a potentially applicable regulation, I'm sorry, applicable rating under 3.321B,

[00:01:13] Speaker 02:
Just last week, this court reiterated in Thomas V. McDonough that 7104D requires that the board, quote, must address in its written statement all regulations that are made potentially applicable through the assertions and issues raised in the record.

[00:01:31] Speaker 02:
This is Mr. Vickus's argument.

[00:01:33] Speaker 03:
So you don't like the phone case in the Veterans Court, right?

[00:01:38] Speaker 03:
You think that the standard that it applied for extra schedule ratings is incorrect.

[00:01:44] Speaker 03:
Am I understanding what you're saying correctly?

[00:01:47] Speaker 02:
No, Your Honor.

[00:01:48] Speaker 02:
We are not asking to assess the standard for an extra schedule or rating, or even for a referral for an extra schedule or rating.

[00:01:55] Speaker 02:
What this case is about is that the Veterans Court applied the merits of whether to refer an extra schedule or rating to whether the record reasonably raises an entitlement.

[00:02:10] Speaker 02:
And again, as Thomas re-emphasized,

[00:02:14] Speaker 02:
If a regulation is made potentially applicable, then the Board has the obligation to address it.

[00:02:21] Speaker 02:
Here, the Board never mentions the regulation once and never discusses anything about extra schedule of ratings.

[00:02:29] Speaker 02:
The Veterans Court's primary error is that it applied the rulings in Thune and Long when it should have applied the rulings in Beringer.

[00:02:39] Speaker 02:
Beringer, the Veterans Court, which ruled in Bonk,

[00:02:42] Speaker 02:
I'm quoting here on page 246 of that decision, because we are assessing whether the potential applicability of 3.321b was reasonably raised by the facts in this case.

[00:02:55] Speaker 02:
and not whether referral actually is warranted, we need not conduct the Thune analysis.

[00:03:01] Speaker 02:
And what the Veterans Court did here is that it applied the Thune analysis, the elements of Thune, the elements in long, which are basically the same, to whether the regulation was made potentially applicable, thus triggering the board's obligation under 7104D to discuss it.

[00:03:21] Speaker 03:
Do you agree that the Thune standard is the correct standard?

[00:03:29] Speaker 02:
I have some problems with some parts of Thune, Your Honor, but I think that for the purposes of this appeal, it's not before the court.

[00:03:40] Speaker 02:
But I do think that

[00:03:42] Speaker 02:
Some of the terminology in Thun is a little problematic.

[00:03:46] Speaker 02:
As we discussed in our briefing here, Thun focuses on symptoms when it should be focusing on impairment, functional impairment, and disability.

[00:03:57] Speaker 02:
But again, the issue here is not whether Thun is the standard to refer it, but whether the regulation was made potentially applicable.

[00:04:07] Speaker 02:
Again, in the words of Thomas,

[00:04:09] Speaker 02:
because of the nature of the facts of his case and the record before the board.

[00:04:15] Speaker 00:
You're not suggesting that the question of potential applicability doesn't require considering

[00:04:33] Speaker 00:
How could it not?

[00:04:35] Speaker 00:
Something that's potentially applicable does depend on what the meaning of that something is.

[00:04:42] Speaker 02:
There's two parts to the regulation, Your Honor.

[00:04:46] Speaker 02:
And I actually am suggesting that the second part of the regulation may touch on whether it's made potentially applicable.

[00:04:55] Speaker 02:
When you look at the regulation, it says, ratings shall be based upon their average impairments and earning capacity.

[00:05:03] Speaker 02:
To record justice, and I skipped a little there, to record justice to the exceptional case where the scheduler evaluation is inadequate to rate a service-connected disability, the director of compensation is authorized to approve an extra scheduler rating.

[00:05:19] Speaker 02:
Then it goes into what does that look like.

[00:05:22] Speaker 02:
This second part is what the Director of Compensation, this is the Thune Test.

[00:05:27] Speaker 02:
The Director of Compensation is applying the second part of that regulation.

[00:05:31] Speaker 02:
After one, it's been either explicitly raised by the veteran or reasonably raised and made potentially applicable by the facts of the case.

[00:05:40] Speaker 02:
And then the board or the RO refers it to the director.

[00:05:45] Speaker 02:
So we don't even get to film or the long test until it's been referred to the director.

[00:05:50] Speaker 00:
I'm sorry.

[00:05:51] Speaker 00:
How is, in your view, the board supposed to determine whether this is potentially applicable?

[00:06:00] Speaker 02:
Well, very great question, Your Honor.

[00:06:03] Speaker 02:
And that really gets to the heart of our disagreement with how the court treated Mr. Viggis.

[00:06:08] Speaker 02:
The key words that we think the court ought to focus on is starting with to a court justice where the scheduling evaluation is inadequate to rate a service-connected disability.

[00:06:22] Speaker 02:
That's the key language.

[00:06:23] Speaker 02:
That's what potentially triggers or makes potentially applicable this regulation to a rating disability.

[00:06:31] Speaker 02:
And this case, I think, and I know that the court is not

[00:06:35] Speaker 02:
really looking at the facts as applied or the specifics of whether it is, but when you have some of the factors that we think should be considered, or when, like here, he has a disability.

[00:06:49] Speaker 02:
The board, the court, even the government, we all agree that he has a disability, a functional impairment that limits him at work and in his normal life.

[00:07:00] Speaker 02:
The board made that finding on page 40.

[00:07:03] Speaker 02:
well it's a no your honor it's enough to raise the potential applicability and and it's it's a very fine distinction but one that as thomas reiterated it's perhaps non-existent i think it is i think your honor that the importance of

[00:07:21] Speaker 02:
The distinction is that the board has to make these determinations first.

[00:07:26] Speaker 02:
What determinations?

[00:07:27] Speaker 02:
Whether the referral is appropriate.

[00:07:29] Speaker 02:
Whether 3.321 applies.

[00:07:33] Speaker 03:
But it has nothing to do with whether an extra schedule or rating is appropriate.

[00:07:36] Speaker 03:
You're saying anytime there's a disability you have to refer it.

[00:07:39] Speaker 03:
to see if there's an extra schedule or rating?

[00:07:41] Speaker 02:
No, Your Honor.

[00:07:42] Speaker 02:
I'm saying that when the regulation is made potentially applicable, as we believe it is in this case, but whether it is or not is not before the court here.

[00:07:52] Speaker 02:
What's before the court here is the legal standard that the Veterans Court applied to find that it was not.

[00:07:59] Speaker 03:
I'm baffled.

[00:07:59] Speaker 03:
I don't understand what the board or RA was supposed to be determining

[00:08:06] Speaker 03:
in connection with the referral.

[00:08:08] Speaker 03:
What are they supposed to decide?

[00:08:10] Speaker 02:
So the referral is based in part on the theme analysis and the exceptional nature of the disability.

[00:08:20] Speaker 02:
We don't dispute that here in this case.

[00:08:23] Speaker 02:
What this case is about is that the board never made that determination.

[00:08:30] Speaker 02:
And the Veterans Court, when it said that the board was correct in not addressing the potential applicability of this regulation, used the wrong standard by requiring Mr. Vickas to prove up that he should have been referred.

[00:08:47] Speaker 02:
And the standard again is that the scheduler evaluation is inadequate to rate a single service-connected disability.

[00:08:56] Speaker 02:
So when the evidence suggests or indicates, as we outlined in our brief, as even Thune discusses, Behringer uses the same language, indicate or suggest that the scheduler evaluation is inadequate

[00:09:11] Speaker 02:
3.321 becomes potentially applicable.

[00:09:15] Speaker 02:
And again, as this court re-emphasized last week in Thomas, the board, not the court, the board has the obligation to tell Mr. Vickis whether they will or will not refer his case to the director for an extra schedule or evaluation.

[00:09:42] Speaker 02:
the government in its brief

[00:09:48] Speaker 02:
So pointing to the government's brief on page 18, its header there says that the Veterans Court properly determined that Mr. Vickas's hearing loss did not merit referral for an extra schedule or evaluation.

[00:10:02] Speaker 02:
This is the crux of our argument.

[00:10:04] Speaker 02:
The Veterans Court was focused on whether a referral was wanted and not whether the borrower was required to tell him first

[00:10:12] Speaker 02:
that the referral was or was not warranted.

[00:10:15] Speaker 02:
The Veterans Court reviews decisions of the board.

[00:10:18] Speaker 02:
It does not do, it cannot make determinations in the first instance.

[00:10:22] Speaker 02:
And whether a specific issue or the potential applicability of a regulation is warranted is the only question that was before the Veterans Court.

[00:10:35] Speaker 02:
And not whether a referral should have been made or not.

[00:10:40] Speaker 00:
Can I ask you where?

[00:10:42] Speaker 00:
In your opening brief for the Venon court, did you present the argument you're now making that this potentially applicable standard is based on this indicated or suggest

[00:11:06] Speaker 00:
something where you define a standard that is different from, let's take a look at whether you're, whatever the veterans court did, in the ballpark of the actual standard for an extradition.

[00:11:23] Speaker 02:
Yes, Your Honor.

[00:11:23] Speaker 02:
Thank you.

[00:11:24] Speaker 02:
And I do apologize by counsel before me.

[00:11:27] Speaker 02:
I'm used to having the table next to me, so I'm having to hold my...

[00:11:34] Speaker 02:
Starting on page 56 of the appendix, second paragraph, or the bottom paragraph, it is well settled that the board decision consider all relevant evidence and discuss all potentially applicable laws and regulations.

[00:11:50] Speaker 02:
He cites to Majid and Shafrath, and I would point out that Thomas relied heavily upon the ruling in Shafrath.

[00:11:59] Speaker 00:
Then the next paragraph.

[00:12:01] Speaker 00:
The question is getting beyond this phrase potentially applicable.

[00:12:05] Speaker 00:
I think you're suggesting there's a legal error in the Veterans Court for giving that phrase too high, too demanding a meaning.

[00:12:15] Speaker 00:
Exactly, Your Honor.

[00:12:17] Speaker 00:
What is the meaning that you...

[00:12:18] Speaker 00:
told the Veterans Court it should have applied, or it should apply.

[00:12:22] Speaker 02:
Well, it's Shaffrath, which is the law which was binding.

[00:12:25] Speaker 02:
It's also Berenger, which he didn't cite to Berenger in his briefing, but it's the same standard.

[00:12:30] Speaker 02:
Berenger also cites to Shaffrath.

[00:12:33] Speaker 02:
And it is that when the record, when the record, when the potential applicability of a regulation is raised by the facts of the case or the record, the board has the obligation.

[00:12:49] Speaker 00:
each other.

[00:12:50] Speaker 00:
I hear those words.

[00:12:51] Speaker 00:
Facts and letters make it potentially applicable as essentially contentless until you define it.

[00:12:58] Speaker 00:
So repeating the words doesn't help.

[00:13:01] Speaker 00:
I see, Your Honor.

[00:13:02] Speaker 02:
So what the veteran argued to the Veterans Court, what the appellant argued, page 58 of the appendix, he raises again that his hearing

[00:13:16] Speaker 02:
creates an impairment in the ability to carry out activities of daily living as well as work activities.

[00:13:23] Speaker 02:
And then the next paragraph, when the rating criteria do not otherwise discuss, let alone account for these effects, the issue of referral for extra schedule rating is rates.

[00:13:37] Speaker 02:
And so here what he's arguing is what we're arguing here is that going back to the regulation again,

[00:13:46] Speaker 03:
When the schedule of evaluation is inadequate to rate the disability, then it's been reasonably raised, the regulation is made potentially applicable, and... If it is supposed to determine potential applicability, the veterans court says it's not potentially applicable because he never argued that there were different symptoms, which is a requirement under THM.

[00:14:07] Speaker 03:
So what's the matter with that?

[00:14:11] Speaker 02:
The problem with that again, Your Honor, is that that goes to whether referrals should have been granted.

[00:14:16] Speaker 03:
You are arguing for a potentially applicable standard.

[00:14:21] Speaker 03:
Under that standard, the Valance Court is saying it's not potentially applicable because there's no argument that the symptoms are any different than in the schedule.

[00:14:31] Speaker 02:
But as we pointed to the appendix, those three pages, 56, 58, the veteran pointed to those specific impairments where the rating schedule gives a 0% rating.

[00:14:44] Speaker 02:
He has impairment in work.

[00:14:47] Speaker 02:
As our brief lays out... I understand the rating, but that seems to be calling the theme.

[00:14:52] Speaker 03:
If you accept theme, theme says you've got to show two things, one of which is different symptoms than in the rating schedule.

[00:15:00] Speaker 03:
the defense court here said you haven't shown that therefore there's no potential applicability is there?

[00:15:09] Speaker 02:
standard would apply to potential applicability, Your Honor, then we would argue that FUN is incorrect because ratings are based on disability.

[00:15:22] Speaker 02:
The regulation talks about where the rating of the disability is inadequate, not the symptoms.

[00:15:28] Speaker 02:
You can have symptoms that do not produce disability, but you can't have disability that

[00:15:35] Speaker 02:
Well, you can have symptoms that do not cause a disability, as Saunders pointed out quite eloquently, saying that pain alone is not necessarily a disability until it causes a functional effect.

[00:15:46] Speaker 02:
And that's the main argument.

[00:15:47] Speaker 02:
That's really the thrust of our argument.

[00:15:49] Speaker 02:
I'm over my time, Your Honor.

[00:16:18] Speaker 01:
Thank you, Your Honors, and may it please the Court.

[00:16:21] Speaker 01:
This Court should affirm the Veterans Court's decision, which held that the Board was not required to discuss the issue of referral of Mr. Vickas's bi-level hearing loss for an extra-schedular evaluation.

[00:16:32] Speaker 01:
The Veterans Court applied the correct standard in determining whether the record reasonably raises an issue for extra-schedular referral, and the Board asked the Veterans Court, and the Veterans Court

[00:16:43] Speaker 01:
Additionally, does so applying the standard that Mr. Vickas had argued in his opening brief before the Veterans Court.

[00:16:50] Speaker 01:
To the extent that Mr. Vickas now asks this court to apply a different standard, Mr. Vickas has forfeited the argument.

[00:16:57] Speaker 01:
Even if this court gets to the merits of that argument, Your Honor, however, there is no basis in this court's case law for the standard that Mr. Vickas is asking this court to adopt.

[00:17:07] Speaker 01:
Mr. Vickers, during his argument just now, referenced whether the record reasonably raises entitlement.

[00:17:13] Speaker 01:
The standard is not whether the record reasonably raises entitlement, but whether the record reasonably raises that the rating criteria are adequate.

[00:17:21] Speaker 01:
That standard comes from Section 3.321, which specifically discusses whether a rating schedule is inadequate.

[00:17:28] Speaker 01:
And that makes sense.

[00:17:29] Speaker 01:
If a rating schedule is adequate, then there's no assessment that the rating schedule is inadequate for an extra schedule or rating.

[00:17:36] Speaker 01:
This standard is applied in a number of cases.

[00:17:40] Speaker 01:
The Veterans Court cited to Yancey.

[00:17:41] Speaker 01:
Mr. Vick is in his opening brief, also cited to Yancey.

[00:17:45] Speaker 00:
Mr. Vick is current.

[00:17:46] Speaker 00:
What do you think the difference is between the reason we raise this question of adequacy of the schedule

[00:17:57] Speaker 00:
I think you were saying is different at how reasonably raises entitlement.

[00:18:02] Speaker 00:
Right.

[00:18:02] Speaker 01:
The entitlement standard is... Entitlement to what?

[00:18:06] Speaker 01:
I was quoting what Mr. and Mrs. Coopers Council had just mentioned.

[00:18:10] Speaker 01:
And as they phrased it in the brief, whether the disability is more disabling than the rating

[00:18:14] Speaker 01:
assigned.

[00:18:16] Speaker 01:
That was the argument in Mr. Vickas's briefs before this court.

[00:18:20] Speaker 01:
Effectively, what Mr. Vickas seems to be asking this court to argue is if the record suggests that a veteran may be entitled to a higher rating, then extra-schedular referral would be appropriate.

[00:18:31] Speaker 01:
However, in that context, extra-schedular referral would become more the norm than the exception.

[00:18:36] Speaker 01:
For example, if the rating schedule implied that it would be 0 percent, that there may be a 10 percent possibility,

[00:18:42] Speaker 01:
extra federal referral under the standard Mr. Vickas is asking this court to adopt would be appropriate.

[00:18:47] Speaker 01:
It would apply even beyond non-compensable ratings if it was 20 percent, but there may be a possibility that the record suggests a higher rating.

[00:18:54] Speaker 01:
Then again, extra federal referral under Mr. Vickas' standard would be adopted.

[00:18:59] Speaker 01:
That is not what this court

[00:19:02] Speaker 01:
That is not the case, though, that the Veterans Court was applying at the time.

[00:19:06] Speaker 01:
This simply collects cases as well.

[00:19:09] Speaker 01:
The standard is simply whether the record reasonably raises the issue to suggest that the rating schedule is adequate or inadequate.

[00:19:18] Speaker 01:
And the board, in this case, specifically determined that the ratings schedule was adequate.

[00:19:24] Speaker 01:
The board specifically held that the hearing loss was adequately contemplated by the hearing schedule.

[00:19:31] Speaker 01:
And the board also specifically said that the effects of Mr. Vikas's hearing loss was adequately contemplated by the schedule.

[00:19:38] Speaker 01:
A lot of this case comes down to a January 2018 examiner's remark

[00:19:42] Speaker 01:
in which the examiner for the hearing test that had occurred said that Mr. Vickas's hearing loss could impact his daily activities and work that required good to exceptional oral communication.

[00:19:57] Speaker 01:
That comment, the board addressed, and the board found that that was contemplated by the ratings federal.

[00:20:04] Speaker 01:
And that makes sense, because when the rating federal relates to the symptom of hearing loss,

[00:20:10] Speaker 01:
it of it accords for the fact that when one has hearing loss, one has difficulty hearing.

[00:20:17] Speaker 01:
That was the argument that Mr. Vickus was making in his opening brief before the Veterans Court.

[00:20:22] Speaker 01:
Mr. Vickus was arguing, though Doucet foreclosed that argument, that the contemplated hearing of the veteran

[00:20:28] Speaker 01:
that the examiner had noted the difficulty hearing was not within the rating schedule.

[00:20:34] Speaker 01:
The rating schedule did not adequately capture this.

[00:20:36] Speaker 01:
The board indicated that it was.

[00:20:38] Speaker 01:
And then Mr. Vickus, through a new council and his motion for reconsideration before the Veterans Court, began having this argument that a different standard should be applied.

[00:20:47] Speaker 01:
Mr. Vickus has no support for why the new standard should be applied and the facts would be pretty broad worth to be applied.

[00:20:57] Speaker 01:
In terms of the forfeiture arguments, Your Honor, we would say that even if this court were to determine that it wanted to entertain this argument, that it should not exercise the discretion to do so, this would be an exceptional argument that would have a broad effect, and it was not brief.

[00:21:16] Speaker 01:
before the Veterans Court in its opening brief.

[00:21:19] Speaker 01:
It would not have had full consideration.

[00:21:21] Speaker 01:
In addition, Mr. Vickas's argument would also potentially have the effect of calling into question whenever a noncompensable rating is issued.

[00:21:29] Speaker 01:
His arguments in his reply brief before this court indicate that Section 1110 should be read such that if the record even suggests

[00:21:39] Speaker 01:
that someone who has a service-connected ability that's not compensable may be entitled to a 10% rating, then extra schedule or evaluation should be referred.

[00:21:51] Speaker 01:
That is, again, that is not the standard.

[00:21:54] Speaker 00:
And so today's- Just to understand, I guess what I'm sitting here thinking is that you're

[00:21:59] Speaker 00:
And just tell me if I'm thinking about this wrong, that your point about the potential broad consequences has something to do with the idea that the ratings of the schedule are about averages.

[00:22:11] Speaker 00:
And by definition, you're going to have a whole lot of people who are on one side or the other, particularly on the above side.

[00:22:19] Speaker 00:
of the average and if the standard for the extra schedule or rating was that the number in the particular percentage in the schedule is too low, everybody above that average would have a claim.

[00:22:35] Speaker 01:
Yes, Your Honor.

[00:22:38] Speaker 01:
Thank you.

[00:22:41] Speaker 01:
And I'll also note, Your Honors, that in Mr. Vickas' opening brief, he alleged that the Veterans Court had erred with respect to an issue of fact-finding.

[00:22:50] Speaker 01:
In the government's response brief, they indicated why the Veterans Court did not engage in a first issue of fact-finding, and Mr. Vickas does not raise that in his reply brief.

[00:22:58] Speaker 01:
Additionally, during argument today, Mr. Vickas valid this court to page 18 of the government's brief, and he referred to an umbrella heading.

[00:23:05] Speaker 01:
with regard to whether the Veterans Court probably determined that Mr. Vicks's hearing loss did not merit referral for an extra schedule rating, only the government notes that in the first subheading to that argument, it's the issue that we're addressing now, whether the Veterans Court used the correct standard when it held that the record before the board did not reasonably raise entitlement to an extra schedule or rating.

[00:23:24] Speaker 01:
That is the issue.

[00:23:25] Speaker 01:
The Veterans Court did properly apply the standard.

[00:23:27] Speaker 01:
The Veterans Court applied the standard in Yancey.

[00:23:30] Speaker 01:
Mr. Vickas argued in his opening brief before the Veterans Court that Yancey was appropriate.

[00:23:35] Speaker 01:
The standard is, whether the record reasonably suggests, that the rating criteria is inadequate.

[00:23:41] Speaker 01:
The board here specifically determined that the rating criteria was adequate.

[00:23:45] Speaker 01:
And therefore, the Veterans Court properly applied the standard.

[00:23:54] Speaker 01:
if your honors have no additional questions.

[00:23:57] Speaker 03:
Okay.

[00:23:58] Speaker 03:
Thank you, Mr. Pierce.

[00:23:59] Speaker 03:
Thank you.

[00:24:03] Speaker 03:
Mr. Hawkins, you've got a couple minutes.

[00:24:09] Speaker 02:
Thank you, Your Honor.

[00:24:11] Speaker 02:
Judge Toronto, to your point about the averages, we're not suggesting that everybody who's above the average is entitled to an extra schedule rating.

[00:24:21] Speaker 02:
What we're arguing is that everybody whose disability exceeds the scheduler is entitled at least to a determination from the board.

[00:24:29] Speaker 03:
Even though they haven't satisfied the symptom requirement of thin.

[00:24:34] Speaker 02:
Yes, Your Honor.

[00:24:35] Speaker 02:
We think the rule should be that the field analysis is applied when determining whether to refer and whether the regulation is made potentially applicable.

[00:24:47] Speaker 03:
Well, Your Highness, in the first part of the analysis is to be ignored in determining whether to refer.

[00:24:53] Speaker 02:
Not to refer, Your Honor, just if it's been made potentially applicable to where the board has to discuss it.

[00:25:00] Speaker 02:
Once it's triggered its obligation to discuss it under 7104D, as interpreted by Thomas, then the board goes into the food analysis, which is currently binding law, which is the case law, which is precedent.

[00:25:13] Speaker 02:
And then they determine whether the referral is appropriate.

[00:25:17] Speaker 02:
Here, Mr. Vick has never received that determination from the board.

[00:25:21] Speaker 02:
And the court, instead of the Veterans Court, instead of looking at whether his disability exceeded the rating, looked at whether he was entitled to a referral.

[00:25:31] Speaker 02:
And we think that that is too narrow of a standard.

[00:25:36] Speaker 02:
It does not conform with Barringer, which is in-bank of the Veterans Court.

[00:25:41] Speaker 02:
which binds them, Thomas and even Bean, which was decided last year, which talks about the board's obligations under 7104A and D to discuss potentially applicable laws and regulations.

[00:25:58] Speaker 02:
And again, just to emphasize, we are just asking that every veteran, or asserting that every veteran is entitled to a decision from the board that follows 7104D, as interpreted by Thomas, and not to have to prove referral.

[00:26:15] Speaker 02:
So in closing, we would ask that the court find that the board, the court, apply to the wrong rule of law, vacate the decision, and remand it to correctly apply the law.

[00:26:26] Speaker 02:
OK.

[00:26:26] Speaker 02:
Thank you.