[00:00:00] Speaker 04:
Our final case for argument today is 24-1919.

[00:00:03] Speaker 04:
Lone's Dale versus Hunter.

[00:00:10] Speaker 04:
Mr. Lone's Dale, please proceed.

[00:00:12] Speaker 04:
Am I saying your name right?

[00:00:13] Speaker 02:
You are pretty good.

[00:00:14] Speaker 02:
It's Lone's Dale, yes, Judge.

[00:00:15] Speaker 04:
Oh, Lone's Dale.

[00:00:16] Speaker 02:
You got it.

[00:00:16] Speaker 04:
No, I wasn't saying.

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

[00:00:18] Speaker 02:
Close enough for me.

[00:00:20] Speaker 04:
Okay, Mr. Lone's Dale, please proceed.

[00:00:22] Speaker 02:
Thanks, Judge.

[00:00:22] Speaker 02:
Let me get on your good side.

[00:00:23] Speaker 02:
I like what you said about baseball.

[00:00:26] Speaker 02:
because the game was played like it was about bases.

[00:00:29] Speaker 02:
It wasn't about hitting balls over the fence.

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And I don't know how they kept score, but I know the score was kept based upon the number of bases you had and not how many times you crossed the plate.

[00:00:40] Speaker 02:
And I want to get in the court's wheelhouse then and talk about Williams versus Peak.

[00:00:50] Speaker 02:
That's what I'm going to talk about today.

[00:00:53] Speaker 02:
The Veterans Court,

[00:00:54] Speaker 01:
I just want to know, what is the sole issue on appeal?

[00:00:57] Speaker 01:
Let's start there.

[00:00:59] Speaker 01:
I like baseball too, but I just want to start identifying what the sole issue is on appeal here.

[00:01:04] Speaker 02:
The issue on appeal is a kind of continuance.

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B, a disallowance.

[00:01:16] Speaker 01:
I don't understand.

[00:01:17] Speaker 01:
Do you all understand?

[00:01:20] Speaker 02:
In 2010, the

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RO continued the claim for increase twice.

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And those were continuances by the plain language of the order.

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Continued at the lower rate and denied an increase rating.

[00:01:44] Speaker 02:
Nothing was denied, Your Honor.

[00:01:46] Speaker 02:
It was it just strictly continued.

[00:01:48] Speaker 03:
Are we misunderstanding the legal effect of when they say we're continuing it at 10%?

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That means your request for more than 10% was denied because they're continuing it at the lower amount.

[00:02:01] Speaker 03:
Isn't that a fair reading of what they're doing?

[00:02:03] Speaker 02:
Not quite.

[00:02:04] Speaker 02:
It it it.

[00:02:05] Speaker 02:
What's the?

[00:02:06] Speaker 02:
That's their point.

[00:02:07] Speaker 02:
That's they're saying that the while you you've asked for this this to be increased and we're.

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that we're not increasing it, we're continuing it.

[00:02:18] Speaker 02:
They didn't disallow it.

[00:02:20] Speaker 03:
No, they didn't disallow the claim because you already have established entitlement to a certain percentage.

[00:02:25] Speaker 03:
They are not increasing it, which means they are disallowing the increase portion.

[00:02:31] Speaker 03:
Isn't that correct?

[00:02:33] Speaker 02:
They're not disallowing anything, Judge.

[00:02:35] Speaker 02:
The notice to the parties is that

[00:02:40] Speaker 03:
Let me put it as plainly as I can.

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If you have a 10% rating and you come in and say, I think I'm entitled to a 50% rating,

[00:02:50] Speaker 03:
And their decision comes back and says, no, we're going to continue at 10%.

[00:02:57] Speaker 03:
Doesn't that at least implicitly deny the increase to 50%?

[00:03:01] Speaker 03:
No, Your Honor.

[00:03:03] Speaker 04:
So I have kids.

[00:03:04] Speaker 04:
I have four of them.

[00:03:05] Speaker 04:
And they come up frequently in oral argument.

[00:03:07] Speaker 04:
So if my child said, can I have two cookies?

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And I said, no.

[00:03:11] Speaker 04:
I said, you can have one cookie.

[00:03:14] Speaker 04:
I believe I have spoken clearly.

[00:03:16] Speaker 04:
Have I not spoken clearly?

[00:03:17] Speaker 02:
You've spoken clearly, Judge.

[00:03:19] Speaker 04:
Well, if I tell him you can have one cookie when he asks for two cookies, that is a denial of the second cookie.

[00:03:25] Speaker 02:
It would be to him, I'm sure.

[00:03:26] Speaker 04:
That would be a... And so the problem here is you said, can I have more than 10%?

[00:03:32] Speaker 04:
And they said, you can have 10%.

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And they give you reasons why you can't have more, right?

[00:03:40] Speaker 03:
These decisions do say that the increases are warranted.

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They do indicate that there was evidence and that the evidence did not reach the threshold to get to the next level.

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That's the rationale, but judge.

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They're continuing it because of that.

[00:04:00] Speaker 02:
They're not disallowing it.

[00:04:02] Speaker 04:
One of the most difficult things, though, is that I don't even think we have jurisdiction to look at this question.

[00:04:06] Speaker 04:
I mean, I think we're engaging you on the merits of what a prior decision did or did not hold.

[00:04:14] Speaker 04:
But I think that's a fact question that was already resolved and that we don't actually even have our right to delve into it.

[00:04:21] Speaker 04:
I mean, even

[00:04:22] Speaker 04:
I mean, we're challenging you on whether they even got it wrong, but I'm not positive.

[00:04:26] Speaker 04:
How do we have jurisdiction to review that?

[00:04:29] Speaker 02:
It's interpretation of law, Judge.

[00:04:30] Speaker 02:
That's what I was talking about.

[00:04:32] Speaker 04:
It seems to be an interpretation of what they meant when they said continued in a particular decision.

[00:04:37] Speaker 04:
That doesn't feel legal in nature.

[00:04:40] Speaker 02:
Well, the problem is that the Veterans Court is looking at that and saying that it's an adjudication.

[00:04:51] Speaker 02:
And under the law and under this court's ruling in Williams v. Peek, there has to be a disallowance before there's an adjudication.

[00:05:03] Speaker 03:
Isn't whether there was a disallowance at most

[00:05:07] Speaker 03:
I mean, it sounds to me like whether there's a disallowance is a factual question, isn't it?

[00:05:13] Speaker 02:
Whether there's a disallowance?

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Yeah.

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It's the essential element to finding an adjudication.

[00:05:19] Speaker 03:
No, I understand that.

[00:05:20] Speaker 03:
But is whether there's a disallowance a factual question?

[00:05:24] Speaker 02:
It is.

[00:05:25] Speaker 03:
I think we don't have jurisdiction to review any of that.

[00:05:29] Speaker 02:
But the problem is, Judge, that this was... Even if they got it wrong, right?

[00:05:33] Speaker 02:
They don't even get it wrong.

[00:05:35] Speaker 02:
They just completely

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ignore the controlling rule of law and jump to the conclusion that an adjudication occurred.

[00:05:45] Speaker 01:
What is the legal error that you're contending happened here?

[00:05:50] Speaker 02:
That an adjudication was determined by the Veterans Court without the essential element of a disallowance.

[00:06:04] Speaker 02:
No disallowance was found and

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And they even adopted what the board did.

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The board was even told on remand to look for a disallowance, come back and show us where this claim has been disallowed or finally denied, they said.

[00:06:29] Speaker 02:
And the board still didn't come back with a disallowance.

[00:06:34] Speaker 02:
And they still didn't come back with a denial.

[00:06:37] Speaker 02:
They just came back and said this claim has been adjudicated without making the essential determination that they need to make under 3.160 subparagraph D and which this court said they need to make in Williams v. Can I just ask you this?

[00:06:56] Speaker 03:
I mean, even if all of that is correct, that there's a specific

[00:07:04] Speaker 03:
We don't have jurisdiction to decide that, do we?

[00:07:09] Speaker 03:
That's a question, at best, of application of a rule to the specific facts of this case.

[00:07:14] Speaker 02:
It's interpretation of 3.160.

[00:07:18] Speaker 03:
Tell me what's the interpretation.

[00:07:20] Speaker 03:
I agree with your interpretation that they have to determine whether there was a disallowance or not.

[00:07:25] Speaker 03:
Right.

[00:07:26] Speaker 03:
And so, even assuming that's correct, the question is, did they

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properly apply that interpretation to the facts of this case?

[00:07:35] Speaker 02:
The answer is no.

[00:07:36] Speaker 03:
Great.

[00:07:36] Speaker 03:
That's your argument.

[00:07:37] Speaker 03:
The problem is we don't have jurisdiction over those arguments because that is application of a rule of law to the particular facts of the case.

[00:07:45] Speaker 02:
They're interpreting the word adjudication as not requiring the rule of law.

[00:07:53] Speaker 02:
They're finding an adjudication with no... Where do you say... Ignoring the rule of law entirely.

[00:08:01] Speaker 03:
I don't understand that.

[00:08:04] Speaker 03:
Where do you see an interpretation that says the board

[00:08:08] Speaker 03:
doesn't have to determine whether there was a final adjudication.

[00:08:12] Speaker 02:
That's precisely what they do.

[00:08:14] Speaker 02:
And they treat... No, no, no, no, no.

[00:08:15] Speaker 03:
Where do you say that?

[00:08:16] Speaker 03:
That's what they say the rule of law is.

[00:08:17] Speaker 03:
It doesn't matter to us whether it's adjudication or not.

[00:08:20] Speaker 03:
We're going to find this claim final.

[00:08:22] Speaker 03:
If they said that, that that's what this law is, then they would be wrong.

[00:08:28] Speaker 03:
But they didn't say that.

[00:08:29] Speaker 03:
They said the right rule of law.

[00:08:31] Speaker 03:
You just think they applied it improperly here.

[00:08:33] Speaker 02:
Is that right?

[00:08:36] Speaker 02:
Partially.

[00:08:38] Speaker 02:
They didn't say what the right rule of law.

[00:08:41] Speaker 02:
They didn't get to that point.

[00:08:42] Speaker 02:
They went to Williams versus Peek.

[00:08:45] Speaker 02:
Instead of going to the regulation, seeing the definition of adjudication that requires a disallow, very, very simple, short regulation says, got to have a disallowance here.

[00:08:57] Speaker 02:
Instead of doing that, they went to Williams versus Peek and said, well, this court

[00:09:03] Speaker 02:
has held that we can make this ruling without a disallowance.

[00:09:13] Speaker 02:
A continuance constitutes a disallowance.

[00:09:16] Speaker 04:
Okay, Mr. Lenzel, I think we have your argument.

[00:09:18] Speaker 04:
Is there anything different, or should we hear from the government to say what you have to say?

[00:09:21] Speaker 02:
Go ahead.

[00:09:21] Speaker 02:
Thank you very much.

[00:09:21] Speaker 04:
Okay, let's hear from the government.

[00:09:35] Speaker 00:
Good morning.

[00:09:36] Speaker 00:
Good morning, Your Honors and may it please the court.

[00:09:39] Speaker 00:
This court raised the issue of jurisdiction over this case.

[00:09:42] Speaker 00:
We would agree that this court lacks jurisdiction because what Mr. Lounsdale raises here is an application

[00:09:50] Speaker 00:
of law to facts.

[00:09:51] Speaker 01:
Does he raise a due process issue, though?

[00:09:54] Speaker 00:
He raised a due process issue in name.

[00:09:57] Speaker 00:
He claims that the VA adjudicators and the Veterans Court were biased against him.

[00:10:05] Speaker 00:
But in reality, what he is challenging is the application of law to facts and the factual findings that the VA

[00:10:13] Speaker 00:
and the Veterans Court made, he has no specific allegations concerning who or why or how they were biased other than the fact that they ruled against him.

[00:10:25] Speaker 00:
So a due process claim in name only does not give this court jurisdiction.

[00:10:32] Speaker 04:
Assuming just assume we don't agree with you for a sec and why don't you nonetheless tell us the merits of why when they said continued at 10% that was effectively a rejection of a request for a higher amount.

[00:10:49] Speaker 00:
It is essentially what you said earlier Judge Moore which is a rejection of an increase is inherently I mean a continuation is inherently a disallowance of an increase.

[00:11:02] Speaker 00:
If you look at Williams, this court said a subsequent final adjudication of a claim which is identical to a pending claim that has not been finally adjudicated terminates the pending status of the earlier claim.

[00:11:16] Speaker 00:
A claim, a continuance of a claim is an adjudication of the claim for increase and ultimately a disallowance of the claim for increase.

[00:11:28] Speaker 00:
Do you have anything further?

[00:11:31] Speaker 00:
Nothing, Your Honor.

[00:11:32] Speaker 00:
Thank you.

[00:11:32] Speaker 00:
Okay.

[00:11:33] Speaker 00:
Mr. Longstall, you have some more time.

[00:11:38] Speaker 02:
The bias wasn't against me personally.

[00:11:40] Speaker 02:
The bias was against the claim.

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And it happens to be that this court

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did not in any way liken a continuance to a disallowance.

[00:11:53] Speaker 02:
In Williams v. Peek, it required a disallowance.

[00:11:59] Speaker 04:
Mr. Lockdell, I'm just going to say I'm really very sympathetic to the argument that you're making, which I've seen a lot of cases

[00:12:09] Speaker 04:
where it seems like a claim gets lost by an overburdened VA and they don't respond to it directly and we would wish that they would and they don't.

[00:12:23] Speaker 04:
But unfortunately, Congress did not decide that I have the authority from a jurisdictional sense to go back and look at that because here you raised the question of did they or did they not expressly address my request for an increase.

[00:12:38] Speaker 04:
The board said they did.

[00:12:40] Speaker 04:
The Veterans Court determined they did.

[00:12:43] Speaker 04:
And that's a fact question I don't have jurisdiction over.

[00:12:46] Speaker 04:
So I'm sympathetic to your argument.

[00:12:48] Speaker 04:
There are lots of times when the board seems to have dropped the ball on claims that are made.

[00:12:53] Speaker 04:
But at the end of the day, if they say they addressed it and the Veterans Court says they addressed it, we've always found we don't have jurisdiction to second guess those fact findings.

[00:13:04] Speaker 02:
Your Honor, I just wanted to point out that if you look at the way both the Board and the Veterans Court approaches that issue of this was an adjudication, they'd never ever comply with the rules and the laws.

[00:13:22] Speaker 02:
in doing that.

[00:13:23] Speaker 02:
It was just a random declaration of adjudication.

[00:13:27] Speaker 02:
And I submit to the court that that's a legal interpretation that they made, that they can do that without following the law.

[00:13:36] Speaker 04:
Okay.

[00:13:36] Speaker 04:
Thank you, Mr. Lonsdale.

[00:13:37] Speaker 04:
I thank both counsel.

[00:13:38] Speaker 04:
The case is taken under submission.