[00:00:00] Speaker 03:
We will hear argument next in number 241200, Evans against Collins.

[00:00:08] Speaker 03:
Mr. Devakis.

[00:00:10] Speaker 01:
Thank you, Your Honor.

[00:00:10] Speaker 01:
May it please the court?

[00:00:12] Speaker 01:
On behalf of Mr. Evans, I want to thank this court for the opportunity to present his appeal.

[00:00:17] Speaker 01:
This appeal asks the court to review two regulations that the Veterans Court misinterpreted.

[00:00:23] Speaker 01:
First, the Veterans Court misinterpreted 38 CFR 3.318

[00:00:27] Speaker 01:
to exclude pending increased rating claims from those that may include an emir-related disease within its scope.

[00:00:35] Speaker 01:
This is contrary to the plain language of that regulation and the Secretary's own rulemaking comments in the Federal Register.

[00:00:43] Speaker 01:
The appeal also asks the Court to consider whether a report of examination that demonstrates an uncompensated disability resulting from a previously rated injury supports an informal claim.

[00:00:55] Speaker 01:
The board's fact finding shows that prior to 1996, Mr. Evans was rated only for a nerve disability that resulted from his combat injuries.

[00:01:06] Speaker 01:
But the 1996 examination disclosed the presence of impairment in the shoulder joint that had not been before compensated.

[00:01:14] Speaker 01:
Under these undisputed facts, we believe that the presence of this new impairment that has not been compensated

[00:01:23] Speaker 01:
represents an increase under the regulation.

[00:01:27] Speaker 01:
This is so because under 1110... Can I just ask?

[00:01:31] Speaker 03:
As you know, our jurisdiction is limited to some subset of what normal appellate review and agency action would be.

[00:01:44] Speaker 03:
Basically, we cannot touch factual findings and applications of

[00:01:51] Speaker 03:
relevant legal principles, two facts.

[00:01:53] Speaker 03:
We just can't do it.

[00:01:55] Speaker 03:
And the principle, or at least the first, I think, argument by the government, and I think adopted by the Veterans Court, is that as a matter of fact, there was not the requisite that required basis to say that there was an informal claim for this.

[00:02:20] Speaker 03:
Why is that not a factual question that we are jurisdictionally disentitled to touch?

[00:02:29] Speaker 03:
And I think you agreed in your gray brief that if that's right, then the other arguments fall away because the other arguments about the regulation and the Nehmer class settlement depend on this.

[00:02:45] Speaker 01:
That's correct.

[00:02:46] Speaker 01:
Yeah, the Nehmer regulation requires some claim, and there's still a dispute between the parties, whether a pending claim versus a finally decided claim.

[00:02:57] Speaker 01:
But here, notwithstanding the board's fact-finding, as we understand the law, when a new disability develops, it is an increase

[00:03:11] Speaker 03:
period, if it's not under the plain interpretation of- It doesn't have to be an increase over, in this case, the original, was it 1968 or 69?

[00:03:23] Speaker 03:
68, yes.

[00:03:24] Speaker 03:
68 assessment, rather than an increase in the mid-90s of something that, of the condition in the early 90s.

[00:03:35] Speaker 03:
The time of the informal claim has to be an increase over the original

[00:03:41] Speaker 03:
going all the way back to 68.

[00:03:43] Speaker 03:
And I thought that's what the Board of Veterans' Appeals, as affirmed by the Veterans' Court, said just wasn't there.

[00:03:52] Speaker 01:
Well, and they did say that, Your Honor, but again, that is a legally erroneous conclusion because the development of a shoulder joint impairment that is separate from the rated nerve impairment

[00:04:06] Speaker 01:
is a different and additional disability.

[00:04:09] Speaker 01:
So basically what the VA had rated in 1968 was a pure nerve impairment.

[00:04:17] Speaker 01:
The diagnostic code used was 8513, which is under 38 CFR 4.124A, which rates neurological disabilities.

[00:04:26] Speaker 01:
The condition and the additional impairment that was disclosed in the 1996 examination

[00:04:33] Speaker 01:
was limitation of motion or loss of functioning in the shoulder joint, which is under 4.71A, as we talked about in our briefing.

[00:04:42] Speaker 01:
VA regulations, in particular 4.21 and 4.27, recognize that these different diagnostic codes represent different

[00:04:55] Speaker 01:
disabilities as a matter of law.

[00:04:58] Speaker 01:
And when you just look at the way that part four is structured, each of the different body systems are separately discussed and show different impairments.

[00:05:09] Speaker 01:
So when you have a limitation of motion within a joint, it is always a different impairment from a nerve disability.

[00:05:18] Speaker 01:
Now we recognize that, as we talked about in a reply brief,

[00:05:23] Speaker 01:
The VA still has to go through the process, and this is where the secretary really focused a lot of their argument on, the VA still has to go through the process of evaluating the claim and determining yes or no, this is a different disability that can be compensated under 4.25B.

[00:05:42] Speaker 01:
But that's not what 3.157 looks for.

[00:05:45] Speaker 00:
Counsel, maybe just to also do this for the benefit of some people in the room.

[00:05:51] Speaker 00:
And you talked a little bit with Judge Taranto about it.

[00:05:53] Speaker 00:
But could you just explain at a high level what are the limitations on our jurisdiction?

[00:05:59] Speaker 00:
Because that's very important to the inquiry here.

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

[00:06:02] Speaker 01:
So this court's jurisdiction, at least with respect to Veterans Court decisions, is limited to legal questions only.

[00:06:09] Speaker 01:
So this court cannot review fact-binding.

[00:06:11] Speaker 01:
and it cannot review facts to law except that under at least Groves v. Peek, as we pointed out in the reply group, the application of undisputed fact to the law is a question of law.

[00:06:23] Speaker 01:
And so generally what we look for is whether the Veterans Court misinterpreted a law or relied upon a misinterpretation as generally how this court's case law has construed the 7292 jurisdiction.

[00:06:36] Speaker 01:
And so, and that's important for the audience.

[00:06:40] Speaker 01:
Here, obviously, there's a question about whether the shoulder impairment is different than a nerve impairment.

[00:06:48] Speaker 01:
But again, under the interpretation of the various law regulations that the secretary has created, each of those different impairments are

[00:07:01] Speaker 01:
different from each other at least enough so that under 3.157 when we have more impairment from the service injury in the shoulder joint now as opposed to just the nerve which was rated then that would represent an increase and under Massey's interpretation of this regulation that would indicate that an increase had occurred from the 1968 rating.

[00:07:25] Speaker 01:
And what we know from the record

[00:07:29] Speaker 01:
I believe it's on page 56 of the record.

[00:07:34] Speaker 01:
The diagnostic code used was 8513, and that diagnostic code is only for nerve impairment.

[00:07:43] Speaker 01:
There's no mention of a 4.71A diagnostic code, which in the shoulder would have been 5201.

[00:07:51] Speaker 01:
And there's no discussion in the rating decision that talks about, other than the fact that he was shot in the shoulder, that injury caused impairment, rateable impairment in the nerves.

[00:08:04] Speaker 01:
So understanding the undisputed facts, again, the board's fact finding confirmed by the Veterans Court that this 1996 examination report demonstrated additional impairment in the shoulder joint

[00:08:19] Speaker 01:
That represents an increase at least enough to trigger an informal claim under this regulation.

[00:08:25] Speaker 03:
Why don't you say something about the other regulatory issue, the NEMA-related one?

[00:08:32] Speaker 03:
NEMA being the name of a case back in the, what time frame?

[00:08:38] Speaker 03:
Late 80s to early 90s, right?

[00:08:40] Speaker 01:
Late 80s, yeah.

[00:08:42] Speaker 01:
And in NEMA, for the audience, just a quick recap.

[00:08:46] Speaker 01:
Congress passed laws recognizing the use of herbicide, Agent Orange, as most people know it.

[00:08:51] Speaker 01:
And the VA kind of drugged their feet in implementing it.

[00:08:54] Speaker 01:
There's a class action, which is still going on to this day, unfortunately, trying to force the VA to implement these rules.

[00:09:02] Speaker 01:
Mr. Niemer was the named appellant in that class action.

[00:09:11] Speaker 01:
So the result of that is that the VA promised in the settlement agreement to create these special rules whereby if you have a claim, and these are under 3.816.

[00:09:22] Speaker 01:
This one focuses on C2.

[00:09:25] Speaker 01:
There's two provisions two subsections whereby if the So subsection C1

[00:09:37] Speaker 01:
reads that if the claimant's application or other supporting statements and submissions may reasonably be viewed under the standards governing compensation claims as indicated in intent to apply for the compensation, or subsection two VA issued a decision.

[00:09:53] Speaker 01:
So the Veterans Court in their decision on page 12 of the appendix held that Nehmer footnote one could not apply to an informal increased rating claim and

[00:10:05] Speaker 01:
Quoting here, because coronary artery disease has not been coded in a rating decision for the brachial plexus condition.

[00:10:14] Speaker 01:
And this represents subsection C2, a decision.

[00:10:19] Speaker 01:
It does not speak to subsection C1, which is where an application or other supporting statements, application referring to the claim, may be reasonably viewed as incorporating these herbicide-related diseases.

[00:10:33] Speaker 01:
And we know from there, again, from the secretary's federal register entry when he created this regulation, that these are long-standing VA policy provides that when disability compensation is claimed, this is not restricted to original or initial claims as was held by the board, the Veterans Court, and in the secretary's briefing, but just a disability compensation claim

[00:11:02] Speaker 01:
which an increased rating is, VA must make a formal rating decision as to each disability that was either claimed or noted in the veteran's record.

[00:11:12] Speaker 01:
And this emphasized point, noted in the veteran's record, that's where the special rule under the Nehmer footnote, the impetus of this rule.

[00:11:22] Speaker 01:
So if while a claim is pending,

[00:11:25] Speaker 01:
or before a claim was decided, if it had been decided, any records disclosed one of these herbicide-related diseases before it was added to the list of presumptive conditions, which is ischemic heart disease, coronary artery disease was in 2010, then

[00:11:43] Speaker 01:
the regulation recognizes that that claim, whether still pending or decided, would have included that herbicide-related disease.

[00:11:53] Speaker 01:
And if it's later, after it was added a presumptive condition, disclosed or discovered and adjudicated, the effective date relates back to that time period.

[00:12:04] Speaker 01:
So what's required under this regulation is the presence in the record of an herbicide-related disease

[00:12:12] Speaker 01:
after a claim has been initiated and either an

[00:12:18] Speaker 01:
after a claim has been initiated and before a decision is made.

[00:12:22] Speaker 01:
It does not require a decision because the next decision, which in this case was when they granted the ischemic heart disease, then that decision would have included it or if it had already happened in the past prior to the addition to the presumptive list, then it relates back to that effective date.

[00:12:42] Speaker 00:
So I'm having some trouble seeing where we are in the world of either factual determinations or application of law to fact.

[00:12:50] Speaker 00:
Can you succinctly explain to me why you think there was a legal interpretation here that pits you within our jurisdiction to review?

[00:13:00] Speaker 01:
So there's, I think, at least two, Your Honor.

[00:13:04] Speaker 01:
Number one is when a new impairment develops

[00:13:12] Speaker 01:
that has not yet been rated, it represents an increase in that originally rated injury as a matter of long.

[00:13:20] Speaker 01:
And so the veteran was shot in combat.

[00:13:24] Speaker 01:
He was rated for the nerve impairment in his left arm.

[00:13:28] Speaker 01:
Several decades later, he comes back and now he can't lift his arm at all at the shoulder.

[00:13:33] Speaker 01:
The shoulder joint has lost range of motion.

[00:13:37] Speaker 01:
That is a different impairment that is in addition to the nerve impairment as a matter of law.

[00:13:44] Speaker 01:
That's our legal argument for that.

[00:13:47] Speaker 01:
And when that happens under 3157, that additionally represents an increase.

[00:13:55] Speaker 01:
Increase doesn't mean that the nerve has to have gotten worse.

[00:13:58] Speaker 01:
It means that there has to be additional disability subject to compensation.

[00:14:03] Speaker 01:
And it's, again, indicates that a worsening has occurred, not demonstrates that a worsening has occurred.

[00:14:10] Speaker 01:
Demonstrating and pyramiding under 4.14 is the process of adjudicating the claim, not triggering an informal claim.

[00:14:22] Speaker 03:
Thank you.

[00:14:22] Speaker 03:
You've used a bunch of your rebuttal, but we will restore the time.

[00:14:29] Speaker 03:
We'll get from the cover.

[00:14:40] Speaker 02:
Good morning, Your Honor, and may it please the Court.

[00:14:43] Speaker 02:
The Court should dismiss this appeal because, as the Court recognizes, we are in the world of application of law to fact or simply fact findings.

[00:14:52] Speaker 02:
In the case as to whether there is an informal inquisiting claim that impers a claim for ischemic heart disease, that is based on a fact finding that the Veterans Court reviewed for a clear error made by the Board at Appendix 65

[00:15:09] Speaker 02:
that Mr. Evans presenting to a VA facility in 1996 did not establish that he had a worsened condition than what was evaluated and found to be service-connected in 1968.

[00:15:24] Speaker 02:
That is a fact question that this court recognized en masse that is dispositive of the court's ability to review it under the limited jurisdiction in 7292.

[00:15:36] Speaker 00:
What is your response to the contention that in this case, it's a legal question?

[00:15:41] Speaker 02:
Your Honor, in this case, it is not a legal question because the crux of counsel office's argument is that there's an undisputed fact that there was a worsening of the condition because there is a new disability that was presented in 1996.

[00:15:57] Speaker 02:
The board's fact finding are the only undisputed facts in the record in Appendix 65

[00:16:04] Speaker 02:
the board makes no finding of there being a new disability presented in 1996.

[00:16:10] Speaker 02:
But rather, if the court were to turn to Appendix 65, the board reports essentially there that the condition that the veteran presents within 1996 is the same condition that was service-connected in 1968.

[00:16:30] Speaker 02:
For example, the board reports that Appendix 65

[00:16:33] Speaker 02:
that the board finds as a matter of fact that the initial rating was granted based on symptoms including but not limited to pain and limited function in the left shoulder and arm, which resulted in medical discharge from the service, and it cites the 1968 rating decision.

[00:16:50] Speaker 02:
The board goes on to find that although the VA treatment records appear to reflect improved symptoms from the initial award of service connection, his complaint in 1996 as a matter of fact

[00:17:01] Speaker 02:
did not suggest a worsening since the prior evaluation in 1968.

[00:17:04] Speaker 02:
So first of all, there's no legal support for the proposition that because a veteran presents with a new disability later down the road, that represents a worsening of a previous disability.

[00:17:17] Speaker 02:
But even if there were, the facts in this case do not entangle the veteran to any relief, because as a matter of fact,

[00:17:27] Speaker 02:
there was presented, there are not undisputed facts that a new disability was presented in 1996.

[00:17:36] Speaker 03:
So I'm not sure I'm understanding this quite correctly, but you would disagree with the idea that this

[00:17:47] Speaker 03:
board decision could be read to say the only thing we are really finding is that there is no new disability, which is a law-laden concept, not the underlying factual proposition that there is no physical worsening

[00:18:12] Speaker 03:
comparing 1968 to 1996.

[00:18:15] Speaker 02:
The board in this case is making a fact finding of whether there is a, as a matter of fact, a worsened condition between 1996 and original service connection in 1968.

[00:18:29] Speaker 02:
Not a legal conclusion that your honor suggests.

[00:18:34] Speaker 03:
I mean, how does that relate to the sentence about this is the highest rating for nerve damage in the minor arm without complete paralysis?

[00:18:42] Speaker 02:
That, Your Honor, suggests, again, as a matter of fact, that the veteran having presented in 1986 with, again, limited motion in the left arm and shoulder but not complete inability to move was not a worsening of the condition between 1968 and 1996 because the veteran in 68 had received the highest disability rating

[00:19:12] Speaker 02:
which the board summarized as being nerve damage in the minor arm without complete paralysis rated at a 60% rating for his gunshot wound residuals to the left shoulder, effective September 1967 at Appendix 65.

[00:19:36] Speaker 02:
Moving briefly, Your Honor, on to the,

[00:19:41] Speaker 02:
And the veteran agrees that reply brief, as Toronto pointed out, at page four of the reply brief, that if the court finds that there is any dispositive factual issue that the court could not reach with regard to whether there is a worsening condition in action 96, then the court should dismiss the appeal.

[00:20:00] Speaker 02:
The court should dismiss the appeal and not go any further.

[00:20:03] Speaker 02:
But even if the court were to proceed further and address the argument as to whether there

[00:20:10] Speaker 02:
If there is an informal increase rating claim in 1996, whether that claim actually infers a claim for ischemic heart disease, the court similarly lacks jurisdiction over that issue in this case, because the Veterans Court did not actually reach the merits of that issue as a legal matter, but rather the Veterans Court applied the jurisprudential rule that the veteran failed to develop

[00:20:36] Speaker 02:
the argument in response to the secretary's defense of the board's decision on that point.

[00:20:42] Speaker 02:
And that, as we said in our brief in cases such as Holsey, H-U-L-S-E-Y, the court has found to represent a fact issue or application of law of fact that is beyond the court's jurisdiction.

[00:20:54] Speaker 03:
The question of insufficient development is a fact question.

[00:20:57] Speaker 02:
Correct.

[00:20:58] Speaker 02:
A jurisprudential rule that the Veterans Court applies, similar to the waiver concept, failure to present arguments in an opening brief,

[00:21:07] Speaker 03:
And remind me, is that your only argument about the NEMA regulation point, aside from the point that it's not a dispute, that without a claim, the regulation doesn't apply?

[00:21:28] Speaker 03:
Besides that, the only argument you have is the Veterans Court never actually did any interpreting of the relevant

[00:21:36] Speaker 03:
section of the NEMA regulation, but merely the lack of sufficient development of the argument.

[00:21:44] Speaker 02:
Our principal argument, Your Honor, is that the court lacks jurisdiction over whether the in the alleged informal entry trading claim infers a claim for IHD because of the application of the jurisprudential rule on the undeveloped argument.

[00:22:00] Speaker 02:
We do go on, however, in our plea to explain that the

[00:22:05] Speaker 02:
The current effective date for Mr. Evans' IHD service connectedness of February 2010 is correct under both Nehmerfoot Note 1 and 38 CFR 3.816C2 Romanet 2 because that is the first claim, the diabetes claim of February 2010,

[00:22:32] Speaker 02:
is the first claim that the VA decided in May of 2010 following this IHD being found to be presumptively service-connected.

[00:22:42] Speaker 02:
In August of 2010, and under Nehmer footnote 1 and 3.816C2R2, the diabetes claim in February 2010 inferred a claim for IHD.

[00:22:56] Speaker 02:
And in the special Nehmer review that happened later,

[00:23:00] Speaker 02:
the February 2010 effective date is correct.

[00:23:08] Speaker 02:
If there are no further questions, we respectfully request that the court dismiss the appeal.

[00:23:12] Speaker 02:
Thank you.

[00:23:13] Speaker 01:
Thank you.

[00:23:25] Speaker 01:
Hopefully I get through all my points, Your Honor.

[00:23:27] Speaker 01:
So BBS fact finding cannot overcome the law.

[00:23:31] Speaker 01:
If the law says that it's a worsening, if the law recognizes that the development of an additional disability is a worsening of the service injury, the board's fact findings are irrelevant.

[00:23:45] Speaker 01:
If the law requires one result, then that's the result.

[00:23:49] Speaker 01:
4.25B

[00:23:51] Speaker 01:
in particular recognizes that separate disabilities from service injuries are entitled to separate ratings consistent with the anti-pyramidine rules.

[00:24:02] Speaker 01:
But again, those are all claim development which hasn't occurred here yet.

[00:24:08] Speaker 01:
With respect to the 3.816 argument, the court did mention that the reply brief was not very well written.

[00:24:20] Speaker 01:
We don't dispute that, but what we do show is that in the court's decision, it very clearly articulated the same position that we have here, which is that an increased rating claim is covered under 3.816C1I, and that when a Nehmer herbicide-related condition is in the record while a claim for increase is pending, then it's within the scope of that claim.

[00:24:49] Speaker 01:
The court says, in other words, and this is on page 12 of the appendix, going back, I read it earlier, but I think it's important to hear this.

[00:24:57] Speaker 01:
In other words, even if the increased rating claim remains pending, Nehmer footnote one does not apply under VA policy.

[00:25:05] Speaker 01:
That is a very clear rule of law that the Veterans Court applied in the alternative, assuming that if there is an increased rating claim pending,

[00:25:15] Speaker 01:
it still wouldn't matter because under the regulation, Nehmer footnote one, you cannot prevail.

[00:25:22] Speaker 01:
And so that's the legal determination that Mr. Evans is disputing.

[00:25:27] Speaker 01:
I also want to just make a quick correction, and I should have led with this.

[00:25:32] Speaker 01:
The appendix 22

[00:25:35] Speaker 01:
is actually where the 1968 rating decision is.

[00:25:39] Speaker 01:
And you'll see there that the condition, the impairment that was rated, Diagnostic Code 8530, is a neurological rating.

[00:25:47] Speaker 01:
Appendix 65, this is where the secretary talks about the board's fact finding.

[00:25:53] Speaker 01:
But as the court highlighted, the rating was for the nerve.

[00:25:59] Speaker 01:
He was at the maximum rating for the nerve, and under 4.25B and 11.10, if the shoulder became impaired as a result of this combat injury that he suffered, it would be, or at least could be, separately rated.

[00:26:14] Speaker 01:
And again, that's enough to trigger 3.157.

[00:26:17] Speaker 01:
So we would ask that the court find that he claim was filed.

[00:26:21] Speaker 01:
informally, and that the herbicide-related disease was within the scope of that claim.

[00:26:27] Speaker 01:
Thank you.

[00:26:27] Speaker 03:
Thank you.

[00:26:28] Speaker 03:
Thanks to both counsel.

[00:26:29] Speaker 03:
The case is submitted.