[00:00:00] Speaker 01:
Our last case forward of the morning is Belger versus Collins.

[00:00:04] Speaker 01:
And Counselor Niles, you have reserved three minutes of your time for rebuttal.

[00:00:09] Speaker 01:
Yes, Your Honor.

[00:00:10] Speaker 01:
All right, you may begin.

[00:00:23] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:00:26] Speaker 00:
The Veterans Court erred in this case because it may not invoke issue exhaustion to bar consideration of an issue that an appellant has presented to VA's Board of Veterans' Appeals.

[00:00:39] Speaker 00:
And once an appellant presents an issue to the board, that issue remains presented.

[00:00:45] Speaker 00:
That is so no matter whether it is the board's first time deciding that issue or after any number of orders of vacator and remand from the Veterans Court for the board to decide that issue again.

[00:00:58] Speaker 02:
You're talking about the matter of the July of the January 29, 2020 letter.

[00:01:04] Speaker 02:
Yes, Your Honor.

[00:01:05] Speaker 02:
That's what we're talking about.

[00:01:06] Speaker 02:
Yes, Your Honor.

[00:01:07] Speaker 02:
That's, I guess, an appendix 24.

[00:01:10] Speaker 02:
So you're saying that that was not considered, that letter was not considered by the board, is that correct?

[00:01:20] Speaker 00:
It was not considered by the board in the decision underlying this appeal.

[00:01:24] Speaker 00:
And so it was considered by the board in the decision, or the 2020 decision, or whether it was or not doesn't matter.

[00:01:31] Speaker 00:
Can you speak up a little bit?

[00:01:32] Speaker 00:
Oh yes, Your Honor, I apologize.

[00:01:34] Speaker 00:
In January 2020, Mr. Belger argued for 2002 effective dates for his service-connected headaches and psychiatric condition.

[00:01:44] Speaker 00:
The board then issued a 2020 decision that the Veterans Court later vacated.

[00:01:50] Speaker 00:
When on remand from the Veterans Court, the issue of earlier effective date than 2017 returned to the board for headaches and for the psychiatric condition.

[00:02:02] Speaker 00:
That issue that Mr. Belger had raised in January 2020 remained presented to the board.

[00:02:10] Speaker 00:
The board failed to address it.

[00:02:11] Speaker 00:
And so when Mr. Belger

[00:02:15] Speaker 00:
Mr. Belcher did not argue the... It was a limited remand, right?

[00:02:19] Speaker 05:
The Veterans Court specific, and it was a joint motion.

[00:02:22] Speaker 05:
So you all agreed, let's remand this to the board to look at X. And now you're saying the board also should have looked at Y. The board didn't preclude you from looking at Y, did it?

[00:02:33] Speaker 05:
It just said, it just didn't address it because you didn't ask it to look at Y.

[00:02:38] Speaker 00:
The board did not address it.

[00:02:40] Speaker 00:
And if the board had said that we are not addressing it because you did not tell us to look at it, that would have been a different fact.

[00:02:46] Speaker 05:
I mean, why wouldn't the board comply with an order from the court that says we're remanding this for the limited purpose of X, which is what the parties agreed to?

[00:02:56] Speaker 05:
Why would the board issue a decision on stuff that it had already addressed?

[00:03:00] Speaker 00:
Full credit to the board.

[00:03:01] Speaker 00:
The board is in a very difficult position.

[00:03:04] Speaker 00:
It gets over 100,000 appeals per year.

[00:03:08] Speaker 00:
And they do their best, but they do make mistakes.

[00:03:11] Speaker 00:
And this is an error in a situation.

[00:03:14] Speaker 01:
Just look at it this way.

[00:03:15] Speaker 01:
Just because of the workload that you talk about, it seems to me that that would compel a lawyer representing a veteran before a hearing like this to make the arguments.

[00:03:28] Speaker 01:
But it wasn't argued.

[00:03:29] Speaker 01:
It wasn't argued before the board.

[00:03:32] Speaker 01:
So what's the board supposed to do?

[00:03:35] Speaker 01:
come up with its own arguments and try to make sure it argues every applicable issue that comes before it?

[00:03:43] Speaker 00:
No, Your Honor.

[00:03:43] Speaker 00:
And my understanding is that that is the interpretation of the Carter case that the Veterans Court applied in this case.

[00:03:53] Speaker 00:
This is different, right?

[00:03:54] Speaker 00:
So in Carter, you had a board decision come out.

[00:03:57] Speaker 00:
There were issues A and B argued.

[00:04:00] Speaker 00:
went up to the Veterans Court, remanded.

[00:04:03] Speaker 00:
There was no additional arguments raised before the board and then appealed back up to the Veterans Court.

[00:04:08] Speaker 00:
And for the very first time before the Veterans Court, you had issues C, D, and E argued.

[00:04:13] Speaker 00:
That's one set of facts.

[00:04:15] Speaker 00:
Here, by contrast, you have the earlier effective date, effective date earlier than 2017 for the headaches and for the psychiatric condition that were before the board and argued going back to 2002 in January 2020.

[00:04:29] Speaker 00:
And that entitlement retroactive to 2002 remained before the board then in 2021.

[00:04:36] Speaker 00:
Now, the joint motion for partial remand.

[00:04:41] Speaker 05:
How did the board rule against you on that?

[00:04:44] Speaker 00:
In 2020, in the vacated decision.

[00:04:46] Speaker 00:
And because it was vacated.

[00:04:47] Speaker 05:
So they ruled against you.

[00:04:48] Speaker 05:
No, but this is the problem.

[00:04:49] Speaker 05:
They sent it back for a limited purpose, which didn't include looking at that part of the 2020 decision, right?

[00:04:58] Speaker 00:
No, Your Honor.

[00:04:59] Speaker 05:
And so the reason why- Well, where in the remand does it say reconsider that conclusion, too?

[00:05:04] Speaker 00:
The joint motion for partial remand.

[00:05:06] Speaker 00:
The reason why it was a partial remand instead of a full remand is that the board in 2020 had remanded an issue and had made favorable findings, and these are in different claims.

[00:05:16] Speaker 00:
As far as the issue of entitlement to an effective date before 2017, there's no limitation on the board's obligation to reconsider the earliest effective date that the law allows prior to 2017.

[00:05:29] Speaker 00:
If the parties had agreed to excuse the board from revisiting the 2002 to 2004 period, the way that the joint motion for partial remand would have read

[00:05:41] Speaker 00:
would be that Mr. Belger agrees to dismiss or does not challenge the part of the board's decision that denied entitlement to an effective date from 2002 to 2004, and the parties then- But you didn't re-argue it.

[00:05:54] Speaker 05:
Clearly, the limited motion to remand doesn't necessarily constrain the board from reaching other issues, but you at least have to raise it to them, don't you?

[00:06:04] Speaker 00:
No, Your Honor.

[00:06:05] Speaker 00:
And that's the fundamental position here,

[00:06:09] Speaker 00:
once an argument, once an issue has been presented to the board.

[00:06:12] Speaker 05:
So they have to issue a new decision even though the Veterans Court didn't say anything about it.

[00:06:17] Speaker 05:
You didn't say to relook at it.

[00:06:19] Speaker 05:
It's not part of the case anymore.

[00:06:22] Speaker 05:
They've got to reach back in to look at all the documents that have been filed before them that they've made decisions on and reconsider them and reissue a new decision when there's a read-in so that you can challenge them to the Veterans Court.

[00:06:34] Speaker 05:
Isn't it your obligation to say, this is still alive, too, and we want you to consider it?

[00:06:41] Speaker 00:
Unique Proclaimant system it is not it is instead the board's duty and to this extent It's not in the briefs, but 38 CFR section 20.104 sees that if the board has concerns that it that That something is properly before it for decision in terms of having jurisdiction.

[00:07:02] Speaker 00:
It has to write to the appellant

[00:07:03] Speaker 00:
and give the appellant a 60-day opportunity to respond, a hearing on that issue.

[00:07:08] Speaker 02:
Mr. Cowles, what about the fact that you filed, after the remand decision, you filed a motion for reconsideration.

[00:07:17] Speaker 02:
And the board came back, I guess, February of 2022, and addressed this January 29, 2020 letter that you're complaining about, you're saying was not addressed.

[00:07:32] Speaker 02:
What's the problem?

[00:07:33] Speaker 02:
I mean, you eventually got a decision and a motion for reconsideration that was directed at what you're saying hadn't been addressed.

[00:07:43] Speaker 00:
In Meyer v. Brown, M-A-Y-E-R v. Brown, 37-F-3-6-18, a 1994 decision of this court, this court held that rulings on board reconsideration, there are rulings by the board chairman.

[00:07:57] Speaker 00:
They are not reviewable before the Veterans Court or higher.

[00:08:01] Speaker 00:
And there is a very meaningful distinction at the board between the initial board decision and the board chairman's decision as to whether to grant reconsideration.

[00:08:09] Speaker 00:
The board chairman.

[00:08:10] Speaker 01:
And they're not reviewable by us, right?

[00:08:14] Speaker 00:
That's correct.

[00:08:15] Speaker 00:
That's correct.

[00:08:16] Speaker 00:
And the scope of what the board is deciding on whether to grant reconsideration is very limited.

[00:08:21] Speaker 00:
The board is not looking at error at all, but instead merely for obvious error or a violation of due process, errors of that severe nature.

[00:08:29] Speaker 00:
And so a denial of reconsideration, which is not reviewable, has any judicial review under Meyer versus Brown,

[00:08:36] Speaker 00:
That's not the same thing as if the board had granted reconsideration, issued a new decision, and in that new decision then spoke to the 2002 effective dates.

[00:08:55] Speaker 00:
I understand that the court has no more questions at this time.

[00:08:58] Speaker 00:
I will just very quickly revisit the joint motion for partial remand and why it is so important here that

[00:09:07] Speaker 00:
Something like 75% to 80% of appeals before the Veterans Court resolve through joint motion for remand or joint motion for partial remand.

[00:09:15] Speaker 00:
It is absolutely the grief that is necessary for the Veterans Court to go about doing its business.

[00:09:21] Speaker 00:
And the background against which appellants enter into those joint motions is that, number one, they are agreed upon negotiated instruments.

[00:09:33] Speaker 00:
And here, you have a 17-page joint motion

[00:09:36] Speaker 00:
parties were able to provide so much instruction to the board on so many issues, but when they cannot reach agreement as to one particular issue or one particular instruction, right now at the Veterans Court, they would have to throw away the entire joint motion and litigate the entire case, every single issue to judgment.

[00:09:54] Speaker 05:
I don't understand this.

[00:09:55] Speaker 05:
The whole point is, this is what you all agreed to address on remand, but it didn't preclude you from raising other things.

[00:10:04] Speaker 05:
If the Veterans Court had said, well, the only thing the board could address was the items in the joint motion to remand, and you raise the other issues that you still thought needed to be addressed, and the board didn't do it, and the Veterans Court said they didn't have to.

[00:10:18] Speaker 05:
They need to have a good legal argument.

[00:10:20] Speaker 05:
They didn't say it was preclusive.

[00:10:21] Speaker 05:
They just said you didn't raise it again.

[00:10:24] Speaker 05:
So the board had no reason to address it.

[00:10:28] Speaker 05:
Why didn't you raise it again if you wanted a new board decision on it?

[00:10:36] Speaker 00:
I do not know.

[00:10:37] Speaker 00:
I was not a representative at the time.

[00:10:39] Speaker 00:
I understand it was a non-attorney representative on remand, Disabled American Veterans.

[00:10:45] Speaker 00:
And you can see that in the copy of the board decision that is of record.

[00:10:51] Speaker 00:
In terms of what had to be argued, I would invite the court to look at joint appendix page 55.

[00:10:57] Speaker 00:
That is the penultimate page of- Page 55?

[00:11:02] Speaker 00:
Page 55.

[00:11:02] Speaker 01:
Is a penultimate page- Is this a new argument you're making?

[00:11:05] Speaker 00:
No, Your Honor.

[00:11:07] Speaker 00:
This is an argument that is brief, and this is the page in the joint appendix- I know it's brief, but was it argued below?

[00:11:13] Speaker 00:
Oh, no, Your Honor.

[00:11:16] Speaker 00:
So page 55 of the appendix is the

[00:11:19] Speaker 00:
is the page in the joint motion for partial remand that vacated the part of the 2020 board's decision that says that the board has to address all evidence and argument of record.

[00:11:33] Speaker 00:
Now, if that joint motion for partial remand... Mr. Knows, you're into your rebuttal time.

[00:11:38] Speaker 01:
Do you want to continue or you can save it?

[00:11:40] Speaker 00:
I believe I have 45 seconds left, and so I do just want to continue with one point, and then I will say...

[00:11:46] Speaker 00:
The parties could have agreed to confine the board's analysis to the evidence.

[00:11:51] Speaker 05:
But you didn't raise it.

[00:11:54] Speaker 05:
You didn't raise it.

[00:11:55] Speaker 05:
If this is the position you want us to adopt, the VA will stop agreeing to all joint remand motions forever, because they're not going to say, we agree to remand on these issues because we think something needs to be addressed.

[00:12:08] Speaker 05:
It goes down, and it comes back up on appeal, and you're raising entire new arguments that the board didn't address.

[00:12:14] Speaker 05:
They'll never agree to remands again.

[00:12:18] Speaker 00:
I would respectfully disagree, Your Honor, because this is limited to an argument that had been presented to the Board before the vacated decision.

[00:12:26] Speaker 00:
And if the Board were concerned, it could ask for additional briefs.

[00:12:29] Speaker 00:
In this, again, uniquely for the veteran.

[00:12:30] Speaker 04:
It didn't know to ask for additional briefs because you didn't raise the issue to them.

[00:12:35] Speaker 04:
It didn't even know you wanted it decided.

[00:12:39] Speaker 00:
And I understand that Your Honor and I disagree.

[00:12:41] Speaker 00:
And for the sake of the remaining panel members,

[00:12:45] Speaker 00:
the board should have known because it was presented to the board in January 2020.

[00:12:49] Speaker 00:
I am into my road work.

[00:12:50] Speaker 01:
Okay, I think we have your argument.

[00:12:52] Speaker 00:
Thank you.

[00:12:52] Speaker 01:
Thank you.

[00:13:05] Speaker 03:
Good morning, may I please the court.

[00:13:11] Speaker 03:
The board was not required to address Mr. Belger's argument on remand.

[00:13:17] Speaker 03:
It had no reason to know that he still had any dispute at all with the result.

[00:13:21] Speaker 05:
It could have addressed it if he'd raised it, or they could have suespante raised it, probably.

[00:13:26] Speaker 03:
Correct.

[00:13:27] Speaker 05:
If the Veterans Court had held they were precluded from raising it, or addressing it, because of the limited nature of the joint remand, that would probably be legal error, wouldn't it?

[00:13:37] Speaker 05:
It very well could be.

[00:13:38] Speaker 05:
Depending on what the remand says, but with this remand.

[00:13:41] Speaker 03:
It very well could be.

[00:13:42] Speaker 03:
But in this case, Mr. Belger had an express right to present additional arguments to the board on remand that was expressed in the joint motion for remand.

[00:13:54] Speaker 03:
His representative, he was represented by counsel the entire time, relevant time.

[00:13:58] Speaker 03:
His representative submitted a brief titled issues presented for review that did not contain any argument about 2002 effective dates.

[00:14:06] Speaker 03:
Consistent with the specific issues identified in the joint motion for remand, the parties identified other arguments about effective dates that they wanted the board to address on remand, and Mr. Belcher presented those arguments to the board on remand.

[00:14:23] Speaker 03:
The board did address his argument in April 2020.

[00:14:26] Speaker 03:
It had no reason to believe that the party remained in dispute.

[00:14:29] Speaker 03:
The party cited two portions of his January 2020 letter in the joint motion for remand that they wanted the board to address.

[00:14:37] Speaker 03:
They did not cite the portions of that letter that identified his argument about 2002.

[00:14:42] Speaker 01:
Is it your position that we have no jurisdiction over this appeal?

[00:14:47] Speaker 03:
Well, I think what this ultimately boils down to is a dispute about the board's factual finding of effective dates.

[00:14:53] Speaker 03:
In our view, the board did address his argument, repeatedly addressed his argument, both in April 2020 and the initial decision.

[00:15:01] Speaker 03:
And he concedes that the board addressed the argument at that time.

[00:15:04] Speaker 03:
But the board's explanation on remand was the same as in the April 2020 decision, that the effective dates for secondary conditions

[00:15:12] Speaker 03:
can be no earlier than the date that the VA receives the claim for those conditions.

[00:15:16] Speaker 03:
And the board explained that on remand again, explained it in the denial of his motion for reconsideration.

[00:15:23] Speaker 03:
I think this dispute is really about the board's finding over when he first presented a claim for effective dates, which is a factual dispute.

[00:15:33] Speaker 03:
So that's our position.

[00:15:35] Speaker 03:
OK.

[00:15:35] Speaker 01:
We thank you for your argument.

[00:15:42] Speaker 01:
Mr. Nowes, you have a little over two minutes.

[00:15:47] Speaker 00:
Thank you, Your Honor.

[00:15:47] Speaker 00:
May it please the court?

[00:15:49] Speaker 00:
I did not hear any argument that had not already been addressed in the briefs or through the questions from the panel or presentation this morning.

[00:15:57] Speaker 00:
And so unless this court has any further questions for Mr. Belger, I will yield the remainder of my time.

[00:16:03] Speaker 01:
Thank you very much.