[00:00:00] Speaker 01: We have five cases on the calendar this morning. [00:00:04] Speaker 01: One from the Veterans Court, two from the MSPB, and two from the PTAB. [00:00:11] Speaker 01: One of the MSPB cases is submitted on the briefs and will not be argued. [00:00:19] Speaker 01: The first case is James Messer versus the Secretary of Veterans Affairs, 2023-1543. [00:00:30] Speaker 01: Is it Mr. De La Cruz? [00:00:32] Speaker 03: Yes, Your Honor, De La Cruz. [00:00:53] Speaker 03: Good morning. [00:00:54] Speaker 03: I may please the court. [00:00:55] Speaker 03: On behalf of Mr. Messer, I want to thank this court for the opportunity to present his appeal. [00:00:59] Speaker 03: Before this court, we have an appeal that asks this court to consider the difference between a supplemental claim filed under 38 USC 5108 and one filed under 5104 Big C. [00:01:12] Speaker 03: I want to start with just a short overview of the undisputed facts. [00:01:16] Speaker 02: Before you start with the undisputed facts, can I just understand what your argument is that 5104C and 5110, not all supplemental claims require new and relevant evidence? [00:01:30] Speaker 02: I understand that to be the argument you're pressing here today. [00:01:34] Speaker 02: Can you point me where in your brief before the CADC you raised that argument? [00:01:39] Speaker 03: That specific argument, Your Honor, was not raised to the Veterans Court. [00:01:43] Speaker 02: However, I do- Is it fair to say that nothing even approaching that argument was raised before the CAVC? [00:01:52] Speaker 03: I don't believe that to be correct, Your Honor. [00:01:55] Speaker 03: I would direct your attention to Appendix 7, the very first sentence in the Veterans Court's decision. [00:02:01] Speaker 03: Mr. Messer argues that the board aired when it exclusively addressed whether new and relevant evidence was submitted in relation to the supplemental claims. [00:02:09] Speaker 03: And that's really the thrust of the argument is that before the board, the issue was not whether the claim should have been re-adjudicated. [00:02:18] Speaker 03: That had already been favorably decided in his favor by the higher level reviewer in the September 2019 decision. [00:02:25] Speaker 03: And he argued that the board [00:02:29] Speaker 03: was required to go beyond that, that issue had already been settled in his favor. [00:02:33] Speaker 02: But I don't see how that is the same argument or even closely similar to the argument you're making here about the statute, whether new and material evidence is required for reopening for the last one year. [00:02:48] Speaker 02: But in any event, the government makes the argument of forfeiture in your gray brief. [00:02:53] Speaker 02: And I'm not even sure that I saw anything where you dispute that point. [00:02:59] Speaker 02: I mean, you say in your gray, well, yeah, that we have jurisdiction over your appeal. [00:03:05] Speaker 02: But that's not the argument the government was making. [00:03:08] Speaker 02: It was making a forfeiture argument. [00:03:10] Speaker 02: Just because we have jurisdiction doesn't mean we've preserved an argument or are immune from consequences of forfeiture, right? [00:03:19] Speaker 03: Yes, Your Honor, that's correct. [00:03:20] Speaker 03: However, in our reply brief, yes, we [00:03:25] Speaker 03: We framed it as jurisdictional, but Morgan is a controlling case law for this circuit, and it supports the proposition that [00:03:34] Speaker 03: Because the Veterans Court relied upon a misinterpretation of this regulation, this court has jurisdiction. [00:03:43] Speaker 03: And in Morgan. [00:03:45] Speaker 02: Well, we have jurisdiction over the case. [00:03:47] Speaker 02: That's not the same thing as whether or not you appropriately preserved an argument. [00:03:53] Speaker 02: Right, Your Honor. [00:03:54] Speaker 03: But the ruling in Morgan goes beyond that and talks about in [00:04:04] Speaker 03: And I'm looking on page 1364 of that decision, talks about applying the correct law to an issue properly before the court. [00:04:17] Speaker 03: Subsequent debriefing concluding in this court [00:04:20] Speaker 03: The Supreme Court issued a decision in Moody v. Netchoice, 603 US 707, where the court focused on this very issue, essentially ruling that the parties cannot waive or forfeit the proper application of the law. [00:04:39] Speaker 03: Justice Alito's concurrence in that decision pointed to two separate [00:04:43] Speaker 03: circuit decisions in the Fifth and Eleventh Circuits, Gardner v. Galetka and Caris v. Southern Pines Trucking Inc. [00:04:52] Speaker 03: And those cases, again, dealt with this issue that the law is what the law is and the Veterans Court can't [00:05:00] Speaker 03: evade the proper application or the proper interpretation of these statutes simply because the parties didn't brief it to them or argue it in the correct way. [00:05:09] Speaker 02: You're asking a lot of adjudicatory bodies that they're required to construe all aspects of a law even if a party hasn't raised an argument with respect to those aspects. [00:05:21] Speaker 02: Seems like a... [00:05:23] Speaker 02: tough road for courts to have to reach out and decide every single thing. [00:05:29] Speaker 02: I don't know how a court would even know the parameters of what they should decide in their decision, because everything is a question of law when the argument isn't raised by the party. [00:05:38] Speaker 02: But you can go ahead with your argument. [00:05:40] Speaker 03: Right, Your Honor. [00:05:41] Speaker 03: And that's my point, is that this Court's jurisdiction requires or allows this Court to review a decision of the Veterans Court on a rule of law or a statute or a regulation that was relied upon [00:05:54] Speaker 03: by the Veterans Court. [00:05:56] Speaker 03: And if it relied upon a misinterpretation, this court should correct that misinterpretation. [00:06:02] Speaker 03: Particularly in this case, where we have a new adjudicatory system within the VA, the AMA is still an infant, even though it's been around for about five or six years. [00:06:12] Speaker 03: There's still a lot for the courts to unpack with how this is supposed to process. [00:06:17] Speaker 03: And this, in particular, is a really important issue [00:06:21] Speaker 03: of whether or not you need to, each time when you're continuously pursuing a claim, present new and relevant evidence. [00:06:31] Speaker 03: We do think that this court should consider the issues, obviously. [00:06:35] Speaker 03: And in our briefing, we cited De Sullivan v. McDonald, where the veteran didn't even raise the issue, and the Veterans Court still relied upon a misinterpretation. [00:06:45] Speaker 03: This court had no problem deciding that issue. [00:06:49] Speaker 03: Linville v. West, where the issue was raised but not addressed. [00:06:54] Speaker 03: And then, of course, the statute 7292A, a rule of law, relied upon by the Veterans Court. [00:07:01] Speaker 03: But I do want to get to the merits of this matter before I run out of time. [00:07:08] Speaker 03: So Mr. Messer filed a claim. [00:07:11] Speaker 03: September 2019, the VA favorably found that he had submitted new and relevant evidence and re-adjudicated a prior claim that had been previously finally denied. [00:07:22] Speaker 03: He filed a supplemental claim. [00:07:24] Speaker 03: The VA issued a decision saying that there was no new and relevant evidence submitted with [00:07:30] Speaker 03: submitted, he appealed to the board. [00:07:32] Speaker 03: The board said that they're only required to look at whether there was new and relevant evidence submitted, and the court affirmed that. [00:07:44] Speaker 03: For supplemental claims, as we discussed in our briefing, [00:07:50] Speaker 03: The supplemental claim relates back to the initial filing. [00:07:54] Speaker 03: And once you've overcome the burden of establishing new and relevant evidence and have triggered the re-adjudication, that issue now is subject to review by the board. [00:08:07] Speaker 03: What happens here in this case is that the agency can now [00:08:13] Speaker 03: supplant the review by the board and preclude a veteran from receiving his rightful appeal under 7105 and 7104 by then saying that there, oh, now there's no new and relevant evidence submitted. [00:08:26] Speaker 02: So I thought you were reading the statute to say that it depends on whether or not it's a year later or more than a year later. [00:08:33] Speaker 02: Is that what your argument is under the statute? [00:08:35] Speaker 02: So if it's a year within a year, no new and relevant evidence is required. [00:08:42] Speaker 02: Can you tell me where we're getting that from the statutory provisions we're talking about here? [00:08:48] Speaker 03: Right, Your Honor. [00:08:49] Speaker 03: So again, under 5104C, [00:08:52] Speaker 03: And the regulations that the secretary promulgated, 3.2501A2, says that any new and relevant evidence is received by the VA before it issues a decision on a supplemental claim is considered filed with that claim. [00:09:10] Speaker 03: When we combine that with 5110, 5104C, the claim is the initiating claim in that continuously pursued process. [00:09:23] Speaker 02: What has that got to do with new and relevant evidence? [00:09:26] Speaker 03: Well, again, the regulation very specifically says that renewing relevant evidence received before the VA issues its decision is considered having been filed in connection with that claim. [00:09:38] Speaker 03: And because it's been continuously pursued under 5110, the claim is not the submission of the supplemental application. [00:09:47] Speaker 03: The claim is the initial claim that started the entire process. [00:09:52] Speaker 03: So when we look at the regulations, again, 3.103, [00:09:56] Speaker 03: Do you cite those in your brief? [00:09:58] Speaker 02: We do, Your Honor. [00:09:59] Speaker 02: You cite 5104C at page 12 and 13, right? [00:10:08] Speaker 02: Where's the regulation? [00:10:10] Speaker 03: So 3.2501 is discussed. [00:10:28] Speaker 03: So starting on the bottom of page 19, we talk about the interplay between 3.2501, 3.103, and the other statutes and regulations. [00:10:41] Speaker 03: And it continues on all the way through page 22. [00:10:45] Speaker 03: And then, of course, we follow up with that in our reply brief in response to the secretary's arguments. [00:10:57] Speaker 03: But essentially, the regulations say that the record includes all of the evidence that has been submitted, well, from the beginning of the veterans discharge from service, but as it relates to the specific issue of new and relevant evidence, the initiating claim that has been continuously perceived. [00:11:19] Speaker 03: And what the Veterans Court did in their interpretation [00:11:21] Speaker 03: is they're taking chunks of this and only looking at a very discrete period of time, which clearly violates both of these regulations that require the secretary to consider all of the evidence that has been submitted, including the new and relevant evidence under 3.2501A2. [00:11:40] Speaker 03: And then when you combine that with the favorable findings that are binding under 5104A and 20.801A, [00:11:48] Speaker 03: Once that determination's been made, it is binding on both the board and the AOJ for the life of that claim. [00:11:56] Speaker 03: Now, we recognize that, and we talked about it in our brief, that once the board makes a final decision, [00:12:02] Speaker 03: 7104B requires new and relevant evidence before the board can look at that same claim under the same facts. [00:12:09] Speaker 03: So obviously, after it's been to the board and a new supplemental claim is filed, then the veteran would, of course, be required to submit additional new and relevant evidence [00:12:21] Speaker 03: that is relevant to the final board's decision. [00:12:25] Speaker 03: Or under 3.160, a claim is finally decided if no action has been taken within the time period, which in most cases is one year. [00:12:35] Speaker 01: Now, no NODs were filed with respect to the July or September decisions. [00:12:43] Speaker 01: How does that fit in here? [00:12:45] Speaker 03: Again, Your Honor, because it's been continuously pursued, the veteran does not need to appeal those decisions. [00:12:52] Speaker 03: The NOD under 5104C says that they can, in succession, and I want to look at the language here because I think it's really important. [00:13:08] Speaker 03: In any case in which secretary renders a decision, the claimant may take any of the following actions. [00:13:14] Speaker 03: with respect to that claim, and then it lists the three options. [00:13:17] Speaker 03: And then it also says that nothing, and I'm looking at 5104C A to big B, nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph one [00:13:34] Speaker 03: in succession with respect to a claim or any issue contained within the claim. [00:13:39] Speaker 03: And so what the Veterans Court's interpretation has done here is it's violated that aspect of it by prohibiting Mr. Messer from [00:13:49] Speaker 03: from obtaining a board review under 7104A of the merits decision that the higher level reviewer who already re-adjudicated the claim found there's new and relevant evidence violates both this and the other statutes and regulations that we discussed. [00:14:09] Speaker 03: I'm into my rebuttal time, but if there are any questions, I'm happy to answer them. [00:14:13] Speaker 01: We will save the time for you. [00:14:15] Speaker 01: Thank you, Your Honor. [00:14:16] Speaker 01: Mr. Hocky. [00:14:21] Speaker 00: I'd like to unpack how we got here. [00:14:26] Speaker 00: As it turns out, Your Honor, it will actually respond to the question you just posed, which is that we're here because the court below the vector square properly applied 38 USC 7105 and the implementing regulation 38 20.202. [00:14:41] Speaker 00: And that is because both those provisions require that the individual identify in the NOD the decision that it wants the board to review. [00:14:51] Speaker 00: And in this case, the NOD that was submitted by Mr. Messer identified a November 2019 decision, identified no other decisions. [00:14:58] Speaker 00: And in the brief before the Bechshunds Court, that brief starts with the same language, asking the board to look at the November 2019 decision. [00:15:11] Speaker 00: And I'm referring first to appendix 56. [00:15:14] Speaker 00: That's the NOD. [00:15:16] Speaker 00: On the next page, appendix 57. [00:15:21] Speaker 00: First paragraph under it says, Mr. Scott, this appeal is before the board as a result of the November 2019 rating decision. [00:15:27] Speaker 02: And that November 2019, an OD stemmed from the October 2019 filing of supplementary. [00:15:34] Speaker 00: Yeah, that was the claim, a supplemental claim, for providing new and, well, attempting to provide new and relevant evidence to reopen the claim and get the benefits. [00:15:45] Speaker 00: Earlier in the process, Mr. Messer had submitted other supplemental claims, including the one that we're talking about here, where [00:15:54] Speaker 00: The argument later raised before the Veterans Court, vaguely, which was the Veterans Court erred because it should have looked at these earlier decisions, which doesn't explain why. [00:16:05] Speaker 00: Here today, Mr. Masters put out a theory as to why the Veterans Court was required to look at a decision that it was not. [00:16:14] Speaker 00: Actually, let me restate. [00:16:16] Speaker 00: The argument is being made that the board should have looked at a decision that it wasn't asked to look at. [00:16:22] Speaker 00: 7105 says that there's a burden on the claimant to tell the board, what decision do we want you to look at? [00:16:30] Speaker 00: This was a decision going back years. [00:16:33] Speaker 02: Well, in addition to not giving them the decision, they didn't make the argument at all. [00:16:37] Speaker 00: No, they didn't make the argument either. [00:16:40] Speaker 00: This court in Ledford years ago identified the fact that one of the basic requirements for the board review is to identify the decision that you want the board to look at. [00:16:49] Speaker 00: Interestingly, in passing the AMA, which is what we're here to talk about, 7105 was modified, amended, to actually include the same kind of identify the decision language that this court discussed in many cases, but beginning with Ledford. [00:17:09] Speaker 00: You'll recall in the case that this court had called Gallegos, this court dealt with a regulation [00:17:15] Speaker 00: which required the specific identification of the decision. [00:17:20] Speaker 00: And this court, at that point, not finding language in 7105 that was clear, determined that the VA was proper in filling a gap. [00:17:30] Speaker 00: That gap's no longer there. [00:17:31] Speaker 00: In the AMA, 7105 was modified to the language that exists today, which is the [00:17:41] Speaker 00: Notice of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees." [00:17:47] Speaker 00: And that's 7105A, no, B2, sorry. [00:17:52] Speaker 00: I think it shows up in our footnote at the end of our brief. [00:17:56] Speaker 00: So that, in conjunction with the 20.202 regulations, is what the Veterans Court relied on when the Veterans Court was confronted with arguments about the Board not reviewing earlier decisions, which the Board was never asked to review. [00:18:08] Speaker 00: So that's where we are. [00:18:11] Speaker 00: Now, before this court, the argument is an attempt to get around that obstacle that was created by Mr. Messer, not asking the board to look at these earlier decisions. [00:18:20] Speaker 00: And as I understand the argument, it's, well, with the AMA and the new continuous developmental, continuous thing which does provide a benefit to veterans who are continuously pursuing their claims by tying or allowing [00:18:37] Speaker 00: consideration of an earlier effective date, going back to the original start of the process. [00:18:42] Speaker 00: If you go through the various lanes several times and eventually you're awarded a benefit, if you've been continuously pursuing it, according to the statute and the regulations, you should be able to, depending on if you've got all your I's and cross your T's, get the effective date that would be associated with the original claim document, notwithstanding the fact that that original claim didn't result in an immediate [00:19:03] Speaker 00: That's the big change that's brought about by 5104C. [00:19:08] Speaker 00: Nothing about 5104C, though, addresses the basic requirement for reopening, which has always been new and now it's called relevant evidence. [00:19:17] Speaker 00: It used to be called new and material evidence under 5108. [00:19:19] Speaker 00: 5108 itself has been revised in conjunction with the creation of 5104C to handle this situation. [00:19:26] Speaker 01: We now have NRE. [00:19:28] Speaker 01: We now have NRE, not NME. [00:19:34] Speaker 00: I have to go back and trust all my speeches now. [00:19:38] Speaker 00: But yes, this is what we have, is new and relevant evidence. [00:19:42] Speaker 00: And there's a requirement, as 5108 plainly provides, as we look at 5108 now, if new and relevant evidence is presented or secured with respect to a supplemental claim, [00:19:53] Speaker 00: The secretary shall re-adjudicate the claim, taking into consideration all the evidence of the record. [00:19:57] Speaker 00: That's what 5108 says. [00:19:58] Speaker 00: 5104C is simply a procedural path that identifies the various paths that a claimant can take once they get a denial at the regional office. [00:20:12] Speaker 00: The first one is to file a request for higher-level review at that regional office under Section 5104B of Title 38. [00:20:19] Speaker 00: The second path that the person could take if they get a denial at the RO is to file a supplemental claim under 5108 of this title. [00:20:26] Speaker 00: And then the third path is to file a notice of disagreement under 7105 and go to the board. [00:20:31] Speaker 00: So that second path, that kind of covers the situation in which, let's say the RO says the claim is denied because you don't have any evidence of X, Y, or Z. [00:20:42] Speaker 00: And the claimant resents, I actually do have evidence of X, Y, and Z. So rather than go to the board or higher level review, he comes in with evidence of X, Y, and Z. That's the new and relevant evidence. [00:20:53] Speaker 00: And if it is new and relevant, then he may actually get his claim. [00:20:57] Speaker 00: And the 5104C and other aspects of the AMA will allow him to [00:21:03] Speaker 00: track back the effective date of that claim to the date of its original claim. [00:21:07] Speaker 00: That wouldn't have been the case without the AMA. [00:21:09] Speaker 00: The old school, as we all know, is a claim under 5108 has its own effective date because it's based on new evidence that the VA didn't have prior to that. [00:21:17] Speaker 00: So you have to start at, you know, the 5110 effective date provision says that effective dates are on the date of the claim or [00:21:26] Speaker 00: where the evidence demonstrates, whichever is later. [00:21:30] Speaker 00: So that's why in the old days you didn't get this sort of look back effective date aspect. [00:21:34] Speaker 00: But that's the big benefit of the AMA is this look back effective date thing. [00:21:38] Speaker 00: It does not change the basic requirement for new and relevant evidence. [00:21:43] Speaker 00: You need new and relevant evidence. [00:21:45] Speaker 00: So to suggest that somehow the AMA changes that, when in fact 5104C, the statute that I see Mr. Messer relies on, plainly says [00:21:55] Speaker 00: You can file a self-employment claim under Section 5108. [00:21:59] Speaker 00: Nothing about that suggests at all that you're filing it under some version of 5108 that is not 5108, something less, that you don't meet the standards of 5108. [00:22:08] Speaker 00: So it's under 5108. [00:22:10] Speaker 00: So our view is that's what it means. [00:22:12] Speaker 00: Are there any questions? [00:22:19] Speaker 01: Thank you, Mr. Hoffman. [00:22:21] Speaker 01: Mr. Hoffman, we'll give you two minutes for a bottle. [00:22:26] Speaker 03: Thank you, your honor. [00:22:28] Speaker 03: A few points. [00:22:28] Speaker 03: Number one, the secretary points to the notice of disagreement at page 56 of the appendix. [00:22:37] Speaker 03: You'll notice there the specific issue that he brought to the board was service connection for sleep apnea. [00:22:43] Speaker 03: Again, this is a pro se veteran who was acting pro se before the board and [00:22:49] Speaker 03: When he went to the board, he understood that his claim had already been re-adjudicated and gotten past the hurdle of 5108. [00:22:56] Speaker 03: And so the issue that the board was going to be looking at was service connection and not whether new and relevant evidence was submitted. [00:23:03] Speaker 03: Ledford and Gallegos and all the other case law had never considered a situation where there is a continuously pursued claim. [00:23:10] Speaker 03: So to the extent that any of those rulings touch on [00:23:14] Speaker 03: any aspect of this claim. [00:23:16] Speaker 03: We think that with the continues to pursue claim aspect, it requires some new case law from this court. [00:23:25] Speaker 03: Mr. Messer, to be clear, is not asking this court or is not asking that the board [00:23:32] Speaker 03: consider earlier decisions. [00:23:34] Speaker 03: The claim before the board had been continuously pursued, had been re-adjudicated by the higher level reviewer, and denied on its merits. [00:23:43] Speaker 03: That's what he was looking for the board to review. [00:23:45] Speaker 03: 7104A, yes, it's an appeal, but it's a de novo review of the evidence on the claim that has been continuously pursued. [00:23:56] Speaker 03: And we just emphasize again, as we pointed out in our briefing, that the secretary is asking this court to ignore 3.2501A2 and 3.103C1. [00:24:05] Speaker 03: Again, 3.2501 says very clearly that new and relevant evidence, any new and relevant evidence received before a decision on a supplemental claim will be considered as filed with that claim. [00:24:17] Speaker 03: That's how we get through the continuously pursued aspect of it. [00:24:22] Speaker 03: And yes, 5104C points to 5108, but these regulations very clearly tell us that the new and relevant evidence is part of the entire record. [00:24:32] Speaker 03: So with that, we ask that the court vacate the Veterans Court's decision and order it to correctly apply the law. [00:24:39] Speaker 03: Thank you very much. [00:24:41] Speaker 01: Thank you, counsel, and the case is submitted.