[00:00:00] Speaker 04:
Next case for argument is 23-2408, Babson versus Collins.

[00:00:08] Speaker 04:
Mr. Niles, please proceed.

[00:00:10] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:00:13] Speaker 03:
The Veterans Court urged, because it misinterpreted 38 USC, Section 7105D, to require an appellant to identify an issue that the VA's lower tribunal expressly addressed.

[00:00:27] Speaker 03:
Section 7105D does not require

[00:00:30] Speaker 03:
an appellant to identify an issue that the lower tribunal expressly addressed.

[00:00:34] Speaker 03:
It instead exists alongside 38 USC section 7104A which defines the board's jurisdiction as embracing all questions in a matter which is subject to decision and opposes essentially a pleading requirement where section 7105D requires the appellant at risk of dismissal to identify the

[00:00:57] Speaker 03:
issue that the appellant is bringing up then for appeal.

[00:01:02] Speaker 04:
Isn't the case that was adjudicated here, the complaint here, I may be wrong, but his challenge of the effective date.

[00:01:13] Speaker 04:
for the ANA for pension.

[00:01:16] Speaker 04:
And that's the case, the issue that went up and down, and that the issue of the remaining, arguably remaining compensation issue from 1993 was raised for the first time on this long remand.

[00:01:32] Speaker 04:
You put it before the board and the board didn't address it.

[00:01:36] Speaker 04:
Is that, am I missing something here?

[00:01:38] Speaker 04:
But what was being adjudicated and what the board and the CABC and perhaps the RL thought they were adjudicating was this claim with respect to the effective date of the ANA.

[00:01:50] Speaker 03:
I do believe there is confusion here and has been confusion here.

[00:01:54] Speaker 03:
Mr. Batson, since 1993, he went in for surgery to VA.

[00:01:58] Speaker 04:
Yeah, there's no doubt.

[00:01:59] Speaker 04:
There's an issue with respect to what was preserved and what was done in 1993.

[00:02:04] Speaker 04:
But I'm focusing on what was adjudicated in the case before us.

[00:02:11] Speaker 03:
The case before us, and this is really the question here.

[00:02:14] Speaker 03:
So for years, the up and down and up and down, the issue that was expressly addressed by VA and the courts was special monthly pension.

[00:02:24] Speaker 04:
Was it the ANA dealing with the pension and the effective date of that ANA?

[00:02:29] Speaker 03:
Yes, Your Honor.

[00:02:30] Speaker 04:
And did it involve the argument that you say was not disposed of in the 1993?

[00:02:36] Speaker 04:
That's an issue.

[00:02:38] Speaker 04:
That may be an issue.

[00:02:39] Speaker 04:
You may win.

[00:02:40] Speaker 04:
You may lose.

[00:02:41] Speaker 04:
But is it not a different issue than the one that was adjudicated in the claim before us?

[00:02:49] Speaker 03:
So Mr. Batson's position?

[00:02:51] Speaker 04:
Can you not answer yes or no?

[00:02:54] Speaker 03:
I'm having trouble making sure that I understand the question.

[00:02:57] Speaker 03:
So perhaps I should just ask a rephrase, Your Honor.

[00:02:59] Speaker 03:
Well, let me rephrase it.

[00:03:01] Speaker 04:
OK.

[00:03:03] Speaker 04:
The claim before us deals with the effective date of the 1993 A&A.

[00:03:10] Speaker 04:
And is that not separate and distinct from the claim, which you may or may not have, with respect to whether or not your claim for compensation in 1993 was ever adjudicated?

[00:03:22] Speaker 03:
Thank you, Your Honor.

[00:03:23] Speaker 03:
I believe I now understand your question.

[00:03:25] Speaker 03:
The issue that is before this court is not special monthly pension or special monthly pension on the basis of aid and attendance.

[00:03:34] Speaker 03:
It is instead is Mr. Batson's entitlement to adjudication from the board of his right to adjudication from the regional office of compensation.

[00:03:45] Speaker 03:
So pension and compensation are different benefits.

[00:03:48] Speaker 03:
And a veteran is entitled only to the grant.

[00:03:50] Speaker 04:
I understand.

[00:03:52] Speaker 04:
But this case that went up and down, did it deal with whether or not this should be compensation or pension?

[00:04:00] Speaker 04:
Or did it not deal exclusively with the effective date of the ANA, which was issued under pension?

[00:04:07] Speaker 04:
Until April 2018, it was pension, pension, pension.

[00:04:10] Speaker 04:
OK, and then 2018, so this case we're talking about has been up and down and up and down.

[00:04:17] Speaker 04:
And now in 2018, it's back at the board.

[00:04:20] Speaker 04:
So you acknowledge that for the first time with respect to this particular appeal, this particular complaint, you now bring in something different.

[00:04:32] Speaker 04:
Or no?

[00:04:32] Speaker 04:
Is that?

[00:04:33] Speaker 03:
That's correct.

[00:04:34] Speaker 03:
In April 2018.

[00:04:35] Speaker 04:
OK.

[00:04:36] Speaker 04:
So my question is, you raised it as an argument before the board, and the board didn't even address it.

[00:04:42] Speaker 04:
Why didn't you appeal the board decision then?

[00:04:44] Speaker 03:
The board decision was a remand order.

[00:04:46] Speaker 03:
And this court's precedence that they're currently understood at the Veterans Court.

[00:04:50] Speaker 04:
So you think the error here was that the board should have adjudicated this new argument

[00:04:58] Speaker 04:
while with the case on remand, because you raised a new and additional argument that, hey, there's this 1993 thing hanging out that was never adjudicated.

[00:05:09] Speaker 04:
So you think that's the way the system compels?

[00:05:12] Speaker 03:
No, Your Honor.

[00:05:13] Speaker 03:
There's a slight tweak here.

[00:05:15] Speaker 03:
Mr. Batson is not saying that the August 2018 board erred by not addressing this argument.

[00:05:21] Speaker 03:
Instead, when the board remanded this case back to the regional office, there's no form that the VA has prescribed

[00:05:27] Speaker 03:
to request adjudication of the long unadjudicated issue.

[00:05:31] Speaker 03:
And so when this case went back to the regional office in August 2018,

[00:05:35] Speaker 03:
At that point, appendix pages 148 to 158, there's this request for adjudication of this compensation issue.

[00:05:42] Speaker 01:
I'm sorry, that was a request made to the RO or the board?

[00:05:45] Speaker 03:
The request that was directed to the board.

[00:05:48] Speaker 03:
And it might be a problem for Mr. Batson that he... And then, I'm sorry, and then what happened?

[00:05:52] Speaker 03:
What is the appendix, I'm sorry, 148 to 158?

[00:05:55] Speaker 03:
It's the April 2018 argument.

[00:05:58] Speaker 01:
Right, and then what happened?

[00:05:59] Speaker 03:
And so then what happened is the case went back to the regional office.

[00:06:03] Speaker 03:
The regional office reviews the record.

[00:06:05] Speaker 03:
And you can see this at appendix page 170, where the September 2019 regional office decision says in the evidence listed that it's booked at the entire claims file, which would have included in appendix 148 to 158 that request for adjudication for the compensation issue

[00:06:24] Speaker 03:
And so the regional office now has reviewed this request for adjudication, does not grant this request for adjudication.

[00:06:30] Speaker 03:
And Mr. Batson then files a notice of disagreement with the board seeking adjudication of this compensation issue.

[00:06:38] Speaker 03:
And that's Appendix page 182.

[00:06:40] Speaker 04:
What is the legal authority for your saying that the RO was compelled based on the submission you made to the board?

[00:06:48] Speaker 04:
to now adjudicate for the first time the question of the 1993 compensation line?

[00:06:59] Speaker 03:
It is the concept that any claim that is before the VA then is due adjudication by the VA.

[00:07:10] Speaker 03:
And so, Your Honor, construing the VA form 526 that Mr. Batson

[00:07:15] Speaker 03:
filed in 1993 to encompass this.

[00:07:18] Speaker 04:
OK.

[00:07:18] Speaker 04:
Well, let's say I have a complaint, and it's for I want 100% disability for a dislocated shoulder.

[00:07:25] Speaker 04:
And it goes up.

[00:07:26] Speaker 04:
It gets reversed by us.

[00:07:27] Speaker 04:
I'm denied.

[00:07:28] Speaker 04:
And it's sent back.

[00:07:29] Speaker 04:
And they've got to adjudicate the effective date of my shoulder injury.

[00:07:33] Speaker 04:
And it goes back at every step.

[00:07:35] Speaker 04:
And you get to the RO, and you say, hey, I have a claim for a foot injury.

[00:07:43] Speaker 04:
Is the RO supposed to adjudicate both the claim for the shoulder, which was in the complaint that we're dealing with?

[00:07:50] Speaker 04:
And then also, are they required to adjudicate anew this claim for a foot injury, which wasn't included in this complaint that's been going up and down the food chain?

[00:08:01] Speaker 03:
Yes, Your Lunger.

[00:08:01] Speaker 03:
So long as the veteran uses the prescribed VA form for a new formal claim for the foot injury in that case.

[00:08:08] Speaker 03:
And that is a situation where VA has a prescribed form.

[00:08:11] Speaker 03:
It's now the VA form 21-526EZ, very close to what Mr. Batson used in 1993 here, the application for pension or compensation.

[00:08:23] Speaker 03:
If the regional office in that circumstance says, hey, I don't like how you presented this foot claim, you need to use the standard form, what you did is you instead put this in argument

[00:08:33] Speaker 03:
The regional office will issue a letter to the veteran saying, you used the wrong form.

[00:08:37] Speaker 03:
Use AVA form 21.

[00:08:39] Speaker 04:
In other words, the wrong form meaning you need to file a separate and distinct and new claim over this issue.

[00:08:44] Speaker 04:
Would that be what they said?

[00:08:46] Speaker 04:
OK.

[00:08:47] Speaker 04:
So are you saying their failure here is that they didn't tell the claimant you need to use a different form and file a new claim or do something different?

[00:08:59] Speaker 03:
Either that or preferably, Your Honor,

[00:09:02] Speaker 03:
the way that Mr. Batson has presented the request for adjudication for this compensation issue is just fine, and then go ahead and issue the decision as to entitlement to the compensation going back to 1993.

[00:09:13] Speaker 04:
I don't understand the answer.

[00:09:16] Speaker 04:
Are you saying that the RO, what was the RO required to do that they did not do?

[00:09:23] Speaker 03:
The RO was required to adjudicate entitlement to this retroactive compensation.

[00:09:29] Speaker 04:
They don't have any authority to say, hey, this wasn't part of the claim.

[00:09:32] Speaker 04:
You need to file a new claim on this foot injury, because this case is about a remand for the shoulder injury, effective date, and had nothing to do with the foot injury.

[00:09:42] Speaker 04:
So you need to file another claim on this, zero, not have the authority to do that.

[00:09:46] Speaker 04:
It does have the authority to do that.

[00:09:48] Speaker 03:
And that is one reason why Mr. Batson appealed.

[00:09:51] Speaker 03:
Why Mr. Patson, I didn't hear you.

[00:09:52] Speaker 03:
Appealed, I'm sorry.

[00:09:54] Speaker 03:
So the implicit denial doctrine is alive and well.

[00:09:57] Speaker 03:
And we know that from this course.

[00:09:58] Speaker 04:
But if the RO had the authority to do that, then what is you saying that they didn't do?

[00:10:06] Speaker 04:
What is the error here?

[00:10:07] Speaker 04:
That they should have sent him a separate thing telling him that explicitly, and that they failed to do that, and that's the error here that you're appealing?

[00:10:15] Speaker 03:
That is the regional office's error that Mr. Batson appealed to the board.

[00:10:18] Speaker 03:
The board and then the veteran's court's error that he is appealing to this court is the board slammed the door in his face and refused to adjudicate that entitlement to adjudication.

[00:10:27] Speaker 04:
But you just, I thought, maybe misunderstood that you told me that the IRO had the authority to slam it in his face.

[00:10:32] Speaker 04:
But what they did wrong was not tell him, hey, sorry, you've got to file a new claim.

[00:10:39] Speaker 03:
Am I right about that?

[00:10:41] Speaker 03:
So I apologize, Ms.

[00:10:42] Speaker 03:
Stoke.

[00:10:42] Speaker 03:
I was trying to be very direct and then explain.

[00:10:45] Speaker 03:
The board, in theory, in concept, is within the scope of the regional office's authority, within the scope of authority, to reject a claim as being on the wrong form.

[00:10:55] Speaker 03:
In this case, Mr. Batson's position is that he did everything he needed to do by putting the issue, yes, not to the regional office in the first instance, but in April 2018 to the board.

[00:11:05] Speaker 03:
And that entire case came back down to the regional office in August 2018 at that point.

[00:11:11] Speaker 04:
It wasn't the case that went back down the question of what the effective date is for the ANA on pension.

[00:11:21] Speaker 04:
Wasn't that the case?

[00:11:22] Speaker 04:
So you're saying you're not acknowledging that this was an additional claim or whatever we want to call it that he raised for the first time in connection with this adjudication when it was on his way down having been adjudicated as exclusively just a claim for the effective date of the 1993 ANA pension.

[00:11:41] Speaker 03:
I suppose, Your Honor, it does not ultimately matter whether the retroactive compensation was before the board from April 2018 to August 2018.

[00:11:50] Speaker 03:
At that point, August 2018, no matter whether the board had it and then remanded it or never had it at all, as of August 2018, the case is back with the regional office.

[00:12:00] Speaker 03:
And the case includes this request for adjudication of this retroactive compensation issue.

[00:12:04] Speaker 04:
And you said the RO has the authority to deny it and say it would be OK if the RO said, hey, this is a new and different argument that wasn't part of the remand.

[00:12:15] Speaker 04:
You've got to file something different.

[00:12:18] Speaker 03:
The RO has in concept the authority to do that.

[00:12:22] Speaker 03:
Mr. Batson would submit that the RO should not.

[00:12:26] Speaker 03:
The RO instead should adjudicate this long pending unadjudicated compensation.

[00:12:33] Speaker 04:
But is that reversible error by the RO?

[00:12:36] Speaker 04:
Yes, Your Honor.

[00:12:38] Speaker 04:
So you're not saying the RO had discretion.

[00:12:41] Speaker 04:
to say, hey, you've got to file a separate claim.

[00:12:43] Speaker 04:
The issue before us is discrete.

[00:12:46] Speaker 04:
You're saying that that's legal error for the RO.

[00:12:50] Speaker 04:
If new claims come in, like the Newfoot claim complaint, at the end of a long process on remand above my shoulder, that the RO is legally compelled to adjudicate that separate claim.

[00:13:04] Speaker 03:
I will answer your honest question.

[00:13:06] Speaker 03:
I will say that this is going into the merits issue that would go to the board.

[00:13:10] Speaker 03:
that the board refused to address because it dismissed the appeal on the basis that Mr. Batson had not identified specifically or sufficiently the specific determination by the regional office.

[00:13:22] Speaker 03:
The specific answer to your honor's question is the regional office, if there is a prescribed VA form that the claimant does not use, they are in certain circumstances permitted to send that back and say,

[00:13:35] Speaker 03:
we need the specific prescribed form in a circumstance.

[00:13:39] Speaker 01:
Can I just ask you one question before before you sit down.

[00:13:43] Speaker 01:
So as I understand things and you can correct me there's a long standing regulation I think enacted in 2011 that tells the board that it shall refer

[00:13:55] Speaker 01:
uh... un-adjudicated claims to the RO and so the most you could get out of your argument here is a referral from the board back to the RO to have the RO adjudicate what you say is a claim that has been pending since August of nineteen ninety three not a new claim but a claim that has been there for thirty two years and

[00:14:22] Speaker 01:
Why if that is right?

[00:14:27] Speaker 01:
Is there any Harmful error if there's error at all in the interpretation of 7105 here because it can already do that When mr. Batson has and I'll say that the harm is that when mr. Batson receives a September 2019

[00:14:46] Speaker 03:
decision, and this is actually in January 2020, but when he receives that regional office decision and is looking and he sees the issue of special monthly pension being adjudicated and silenced as to special monthly compensation, he is worried about implicit denial.

[00:15:04] Speaker 03:
If he does not raise his hand and file a notice of disagreement seeking adjudication of, all he wants is agency of original jurisdiction, the regional office

[00:15:16] Speaker 03:
determination of his compensation issue, but to preserve that right, and even as a support in Steele versus Collins and upholding some of the Nile Doctrine.

[00:15:25] Speaker 01:
But if there's, let's suppose, I guess we're about to find out, but if the government agrees that the RO without loss of effective date to August 1993 can, in fact, today adjudicate your

[00:15:40] Speaker 01:
that claim, either to say that it's been lost or whatever it is, then I don't understand what harm there is, even if there is error in the Veterans Court's interpretation of 71-05 as strictly limited to board review only of veterans

[00:16:07] Speaker 01:
actual decisions by the RO as opposed to either refusals to decide or failures to decide.

[00:16:14] Speaker 03:
If the government were to make that concession, which Mr. Batson would welcome, then yes, the discussion here would have changed from everything we've been saying to one of newness.

[00:16:23] Speaker 03:
And so I will look forward to hearing what my friend says and would be grateful for any time the court can resort to a rebuttal.

[00:16:29] Speaker 04:
Would there be any difference if the government conceded only that you can bottle a new claim anytime?

[00:16:36] Speaker 04:
This isn't about effective dates so that you want the time that you raised it to the board in 2018 as opposed to today.

[00:16:46] Speaker 04:
Is that what's at stake here?

[00:16:48] Speaker 03:
Yes, Your Honor.

[00:16:49] Speaker 03:
The difference is effective date.

[00:16:52] Speaker 03:
A new claim would start today.

[00:16:54] Speaker 03:
And recognition of this already pending unadjudicated claim would go back to 1993 potentially.

[00:17:01] Speaker 04:
OK.

[00:17:02] Speaker 04:
Let's hear from the Governor.

[00:17:11] Speaker 04:
Good morning.

[00:17:11] Speaker 00:
Good morning, Your Honor.

[00:17:12] Speaker 00:
May I please the court?

[00:17:14] Speaker 00:
I want to address Judge Toronto's point first.

[00:17:17] Speaker 00:
We do agree that the RO can now adjudicate this allegedly pending 1993 claim for compensation.

[00:17:26] Speaker 00:
A new claim could be filed.

[00:17:27] Speaker 00:
There's no question about effective date because if we're talking about a pending, unadjudicated claim,

[00:17:34] Speaker 00:
and if the RO were to determine that, in fact, this claim has been pending since 1993, then the effective date would be 1993.

[00:17:43] Speaker 00:
There would be nothing lost if Mr. Batten went to the RO right now, filed a new claim saying, I'm entitled to service connection for vision loss, and then

[00:17:55] Speaker 00:
The RO could deny, obviously, could grant the claim with an effective date of today, and then he could file a notice of disagreement saying the effective date should be 1993 because really this claim has been pending since 1993.

[00:18:11] Speaker 00:
Nothing.

[00:18:11] Speaker 01:
Can I just double check on something just so that I either confirm or deny that I've understood how some things relate to each other?

[00:18:20] Speaker 01:
There was discussion in the Bean decision of the Cogburn decision.

[00:18:27] Speaker 01:
And the Cogburn decision said, the Bean decision was basically about Board to Veterans Court.

[00:18:35] Speaker 01:
We're talking here about

[00:18:37] Speaker 01:
RO to board.

[00:18:38] Speaker 01:
But that's sort of a piece along the way of the analysis and being, and it cites Codburn.

[00:18:44] Speaker 01:
And Codburn, in turn, says that the board does have jurisdiction to review a RO refusal to consider a claim there, an unadjudicated claim that the RO, I think, had said too late, basically.

[00:19:02] Speaker 01:
But there's a footnote in Cogburn that's dropped that says, in DiCarlo against Nicholson, we stated that the appropriate procedure for a claimant who believes that his claim is unadjudicated is to pursue resolution of the claim by the regional office.

[00:19:19] Speaker 01:
It didn't say pursue by what means, and I think you just

[00:19:23] Speaker 01:
stated that there doesn't have to be a new claim, just some kind of communication.

[00:19:29] Speaker 01:
And are we talking about the same thing?

[00:19:33] Speaker 00:
Yes, I would agree with that.

[00:19:34] Speaker 00:
I'm not aware if there's a specific procedure by which you could do this other than file the new claim form just asserting a new claim for service connection for the same condition that he was allegedly asserting service connection for in 1993.

[00:19:50] Speaker 00:
and then allow the RO to determine, you know, argue that the effective date should be 1993 before the RO.

[00:19:56] Speaker 01:
So, I mean, all of this is making me think that there's actually nothing really at stake here, but I just want to ask, I guess, a question on what would amount to the merits of the 7105 scope question.

[00:20:08] Speaker 01:
How is that squareable with what's now 20.904 B, what I guess for a long time was 19.9 or something?

[00:20:17] Speaker 01:
in the regulation, it says, the board shall refer to the agency of original jurisdiction for appropriate consideration and handling, in the first instance, all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction, with the exception, never mind the exception.

[00:20:39] Speaker 01:
That seems to me to say,

[00:20:41] Speaker 01:
unless the regulation is exceeding its authority, that 7105 is not limited to matters that the RO has already decided.

[00:20:54] Speaker 00:
I mean, yes, that regulation does say that the board can refer.

[00:20:59] Speaker 00:
Shall refer.

[00:21:00] Speaker 01:
It doesn't have any choice about it.

[00:21:02] Speaker 00:
Right.

[00:21:02] Speaker 00:
Shall refer.

[00:21:03] Speaker 00:
I'm not sure I understand your question about how that relationship doesn't relate to something.

[00:21:07] Speaker 01:
I thought what the Veterans Court said about 7105 and your position about 7105 is that the board lacks jurisdiction to address a matter that hasn't been decided by the RO.

[00:21:23] Speaker 01:
And if it's obligated to take action by way of not dismissing but referring over a matter that has not been adjudicated, that interpretation of 7105 seems a little too strict.

[00:21:42] Speaker 00:
It's questionable whether this was an issue of jurisdiction, per se.

[00:21:49] Speaker 00:
The board says jurisdiction.

[00:21:53] Speaker 00:
It cites 7104, 2105, I believe, or 2.205.

[00:22:03] Speaker 00:
And it also cites 7105.

[00:22:05] Speaker 00:
But 7105 itself is not

[00:22:08] Speaker 01:
I don't think the word jurisdiction here has any consequence at all.

[00:22:14] Speaker 01:
The question is whether it has authority to address the matter.

[00:22:19] Speaker 01:
And his argument was that I presented this unadjudicated claim to the RO.

[00:22:28] Speaker 01:
The RO didn't adjudicate it.

[00:22:30] Speaker 01:
I would like you, the board, to do something about it.

[00:22:32] Speaker 01:
And the board said, hasn't been decided, can't.

[00:22:37] Speaker 00:
7105D, to me, seems to give the board discretion to dismiss.

[00:22:42] Speaker 00:
So the board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.

[00:22:49] Speaker 00:
That's what happened here.

[00:22:50] Speaker 00:
The NOD specified an entirely different issue, entirely a determination that was never reached.

[00:22:58] Speaker 00:
And the board then, under 7105, could have dismissed.

[00:23:02] Speaker 04:
So tell me again the specifics of how far you think we could go.

[00:23:07] Speaker 04:
I mean, do we reverse, vacate, and send it back to the board to send it back to the RO to adjudicate this other claim?

[00:23:17] Speaker 04:
What is the mechanism?

[00:23:18] Speaker 00:
I mean, if the court were to determine that the board should have exercised jurisdiction, or not necessarily a jurisdictional question, but should not have dismissed here, then

[00:23:32] Speaker 00:
Yes, it would have to go all the way back to the RO, because the board even- But do you agree with that?

[00:23:38] Speaker 04:
I mean, initially you gave some, I won't call it a concession, but it's, you know, what is the breadth of that concession in terms of what you think we could do?

[00:23:47] Speaker 00:
Well, when I started, I was talking about what Mr. Batson could do at this point, not necessarily what this court could do.

[00:23:54] Speaker 00:
So Mr. Batson could go to the RO and file the claim and argue a 1993 effective date, which is why this court doesn't really need to do anything with this case.

[00:24:07] Speaker 00:
There's no harm, as Judge Toronto has asked about.

[00:24:11] Speaker 00:
There's no really harm here because he could go back and make this claim that there was a 1993 pending claim for service connection.

[00:24:19] Speaker 00:
And if they read that there was a pending claim, then he could get disability benefits all the way back to 1993.

[00:24:26] Speaker 02:
What I understand you to be saying is, even if he won on this appeal, all we could do for him is give him the right

[00:24:34] Speaker 02:
to do what he can already do.

[00:24:35] Speaker 02:
I guess he wouldn't have to file a piece of paper at the RO because we would be sending that paper for him back to the RO.

[00:24:42] Speaker 00:
There might be slight procedural differences, but the ultimate outcome would be the same.

[00:24:48] Speaker 02:
Can I ask you, this may relate to the questions Judge Toronto is asking you, but you contend that it is a fundamental proposition that there must be an adjudication of a claim before it can be appealed.

[00:25:02] Speaker 02:
Mr. Batson says in his reply brief, it's not a fundamental proposition, and you don't cite any authority for what would make it a fundamental proposition.

[00:25:12] Speaker 02:
Do you have a response to that?

[00:25:14] Speaker 02:
Is it really a fundamental proposition?

[00:25:17] Speaker 02:
Of course, I'm talking about in the context of veterans' appeals.

[00:25:21] Speaker 02:
Is it truly fundamental that there must be an adjudication of a claim before it can be appealed?

[00:25:25] Speaker 00:
Sure, and we cite in our brief a number of points in the statutes and the regulations which talk about, use words like decision, that is appealed from, you know,

[00:25:38] Speaker 00:
7105 talks about a determination, 7104A talks about all questions in a matter subject to a decision by the secretary shall be subject to one review on appeal.

[00:25:52] Speaker 00:
So we think that that type of language means that there has to be some sort of decision that can then be appealed.

[00:26:06] Speaker 00:
Thank you.

[00:26:07] Speaker 00:
Thank you.

[00:26:17] Speaker 03:
Thank you, Your Honors.

[00:26:18] Speaker 03:
Two quick points.

[00:26:19] Speaker 03:
One, on the mechanism, Mr. Batson requested this court reverse the Veterans Court's affirmance with instructions to the Veterans Court to reverse the board's dismissal and remand with instructions for the board to address in the first instance the merits issue of Mr. Batson's appeal to it on the adjudication entitlement to the compensation issue.

[00:26:40] Speaker 03:
I also heard my friend not

[00:26:45] Speaker 03:
quite concede that Mr. Batson could write a letter or have what he has already put in accepted by the regional office.

[00:26:52] Speaker 01:
We could just call it a DeCarlo communication.

[00:26:55] Speaker 03:
A DeCarlo communication.

[00:26:56] Speaker 03:
Perfect, Your Honor.

[00:26:58] Speaker 03:
I would need to see the regional office accepting the DeCarlo communication that's already there as opposed to filing a new

[00:27:04] Speaker 03:
formal claim application.

[00:27:05] Speaker 03:
There is just a landmine of difficulties there, getting earlier effective dates based on them.

[00:27:09] Speaker 03:
There is a hard cap right now, understanding of VA.

[00:27:13] Speaker 03:
But if VA does accept this DiCarlo communication from April 2018 and issues a decision as to this entitlement, the earlier entitlement to compensation, then that is certainly something, again, Mr. Batson will welcome.

[00:27:26] Speaker 03:
He also would be willing and would be happy to follow up on this to put some sort of stay to see if that happens.

[00:27:32] Speaker 04:
Thank you.