[00:00:00] Speaker 03:
Our first case is William Moore versus Secretary of Veterans Affairs, 2023, 1867, Mr. Dohawkis.

[00:00:11] Speaker 01:
Yes, Your Honor.

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

[00:00:12] Speaker 01:
May it please the Court.

[00:00:15] Speaker 01:
Kenny Dohawkis for repellent.

[00:00:17] Speaker 01:
On behalf of Mr. Moore, I want to thank this Court for the opportunity to present his appeal.

[00:00:21] Speaker 01:
Here we have the Veterans Court decision, which affirmed the board's decision, but did so contrary to law.

[00:00:28] Speaker 01:
There are two issues presented with similar errors.

[00:00:30] Speaker 01:
The Veterans Court mistakenly affirmed the board's determination that prior board decisions had adjudicated issues that, as a matter of law, it could not have.

[00:00:39] Speaker 01:
And the Veterans Court also engaged in prohibited first instance fact finding.

[00:00:44] Speaker 01:
I'd like to start with the TDIU matter.

[00:00:47] Speaker 01:
What this boils down to is that the board determined that the TDIU rating is moot because Mr. Moore is already receiving currently SNC ratings, which were higher than the TDIU.

[00:00:59] Speaker 04:
I'm sorry.

[00:00:59] Speaker 04:
I'm confused.

[00:01:01] Speaker 04:
We're talking about here the 2013 board decision.

[00:01:07] Speaker 01:
The decision I just referenced, Your Honor, is the decision on appeal, the 2021 decision.

[00:01:12] Speaker 01:
OK.

[00:01:13] Speaker 01:
And there, the board determined that TDIU is moot because Mr. Moore is currently receiving more than a total rating.

[00:01:20] Speaker 01:
But the Veterans Court affirmed because it determined that the 2013 decision had implicitly denied TDIU when it disposed of the PTSD rating.

[00:01:30] Speaker 04:
And our primary.

[00:01:31] Speaker 04:
In 2013, they were reviewing the 2001 RRO decision.

[00:01:36] Speaker 04:
Is that right?

[00:01:37] Speaker 01:
I believe either the 2001 or 2006, because there was a couple of.

[00:01:41] Speaker 04:
Well, that makes a difference, which is

[00:01:43] Speaker 01:
Well, the PTS, it should be the 2001, your honor.

[00:01:50] Speaker 01:
And although there was a later 2006 adjudication that is per argument, it's not necessarily relevant to what this court is dealing with the issue.

[00:01:59] Speaker 01:
But it had revised a prior 1968 claim on the basis of Q, which is partly is one of the main thrust of our argument for why an earlier effective date is available.

[00:02:11] Speaker 01:
However, while an appeal was pending for Mr. Moore's PTSD rating, Mr. Moore filed a TDIU application.

[00:02:21] Speaker 01:
The VA at that time told him, we are not going to make a decision on this.

[00:02:27] Speaker 01:
So they didn't issue a decision.

[00:02:29] Speaker 01:
But more importantly, the board's decision that's before this court.

[00:02:34] Speaker 04:
The 2001 decision didn't address TDIU.

[00:02:37] Speaker 04:
Is that correct?

[00:02:38] Speaker 01:
It did not, Your Honor.

[00:02:40] Speaker 01:
Right.

[00:02:40] Speaker 01:
And neither did the 2006, in March of 2006.

[00:02:43] Speaker 04:
Well, it's questionable, it's the 2006 decision, but I'm not understanding what that has, the 2006 decision has to do with what's before us now.

[00:02:54] Speaker 04:
That wasn't appealed either in 2013 and the 2013 board decision or the 2015 board decision, right?

[00:03:01] Speaker 01:
Well, it was, Your Honor, because what happened was is in 2001, the evidence raised an entitlement to a TDIU.

[00:03:10] Speaker 01:
Then later, the VA issued a decision in OAS.

[00:03:12] Speaker 04:
I'm sorry, you're confusing me, because you said that the 2001 decision

[00:03:17] Speaker 04:
was before the board in 2013, which was remanded and then came back in 2015.

[00:03:24] Speaker 04:
I'm not understanding what the 2006 decision has to do with this.

[00:03:29] Speaker 01:
The reason why that's pertinent is because it was the only mention of TDIU ever until this board's decision issued in 2021.

[00:03:38] Speaker 01:
And all that the VA ever said was, we're not going to adjudicate it.

[00:03:42] Speaker 01:
That's the reason that we bring it up.

[00:03:43] Speaker 01:
And that's why it's important because without a decision,

[00:03:46] Speaker 01:
It could never have been before the board, which goes to the merits of what the Veterans Court found.

[00:03:53] Speaker 04:
The 20 to 2006 decision, according to you, wasn't before the board anyway.

[00:03:58] Speaker 04:
Correct, Your Honor.

[00:03:59] Speaker 04:
Okay.

[00:04:00] Speaker 04:
So the question is how they handled the 2001 decision.

[00:04:06] Speaker 01:
I'm sorry, Your Honor, say that again.

[00:04:07] Speaker 04:
The question is how they handled the 2001 decision.

[00:04:09] Speaker 04:
Correct, Your Honor.

[00:04:10] Speaker 01:
Yes.

[00:04:11] Speaker 01:
And it was never mentioned there.

[00:04:14] Speaker 01:
But the reason, and I think it's important, I want to emphasize why the 2006 decision is important because with implicit denial, there's a line of cases where if the VA bifurcates a TDIU rating from a scheduler rating, disposition of the scheduler cannot also

[00:04:31] Speaker 01:
Normally under the general rule that the secretary cited in his briefing under Locklear There is a general rule that most of the time when when you're given a rating less than total then it's reasonable that most folks would be put on notice that the TDIU raising was addressed but Locklear specifically

[00:04:50] Speaker 01:
and the facts of this case support also that when the VA separates them and here they did it by saying we're not going to issue a decision on TDIU then when it gets to the board the board couldn't have addressed it because it was never denied

[00:05:05] Speaker 01:
granted anything.

[00:05:06] Speaker 01:
There was no SOC.

[00:05:08] Speaker 01:
There was no substantive appeal.

[00:05:09] Speaker 01:
So it was still pending at the VA.

[00:05:12] Speaker 01:
And that's why the 2006 AOJ decision is important.

[00:05:15] Speaker 02:
But the- What if we disagree with your view of the 2006 letter as somehow bifurcating TDIU for the VA to decide at some other day?

[00:05:29] Speaker 02:
What does that do to your case?

[00:05:31] Speaker 01:
I don't think it does anything your honor because again there is no statement of the case.

[00:05:36] Speaker 02:
Well a lot of your argument in your briefing at least seems to be premised on the idea that there was bifurcation and because there was bifurcation and therefore the TDIU remains pending and still alive and it's never been resolved.

[00:05:52] Speaker 02:
So it seems like

[00:05:55] Speaker 02:
That theory, at least to the extent it's tied to the idea that there was some kind of bifurcation act in 2006, that at least would go away, right?

[00:06:08] Speaker 01:
If the court disagrees, Your Honor, that there was no bifurcation, then it's relevant only to the extent that that's our underlying merits argument that the Veterans Court never addressed.

[00:06:21] Speaker 01:
The error that the Veterans Court made here, which is before this Court, is it affirmed in violation of Chinnery on a basis that the Board didn't.

[00:06:31] Speaker 01:
The Board said your TDIU is moot because you are currently receiving a higher rating than TDIU.

[00:06:38] Speaker 01:
The Veterans Court said we affirm because it was implicitly denied in 2013.

[00:06:44] Speaker 01:
And implicit denial, as we talked about in our brief, is fact heavy.

[00:06:48] Speaker 01:
None of these facts were developed by the board.

[00:06:49] Speaker 01:
7261C.

[00:06:51] Speaker 02:
Well, when we go back to the 2013 board decision and specifically look at what Mr. Moore said during the 2012 hearing before the board, he said he is satisfied with a 70% rating.

[00:07:08] Speaker 02:
And so he doesn't care about that.

[00:07:10] Speaker 02:
The only thing he cares about now is an effective filing date.

[00:07:15] Speaker 02:
Right.

[00:07:17] Speaker 02:
That does feel like he, you know, he is, I suppose the master of his claim and appeal is abandoning anything related to the rating side of his claim.

[00:07:29] Speaker 02:
And he's focused purely on trying to get an earlier effective day.

[00:07:33] Speaker 01:
He was, Your Honor, but two points to that.

[00:07:36] Speaker 01:
One is, again, the TDIU was not before the board because there was never a statement of the case.

[00:07:41] Speaker 01:
There was never a substantive appeal.

[00:07:43] Speaker 01:
So regardless of what he communicated, the board could not have addressed TDIU.

[00:07:48] Speaker 01:
There was never a decision.

[00:07:50] Speaker 01:
And the RO again in 2006 told him, we will not adjudicate TDIU.

[00:07:55] Speaker 02:
They didn't say we're denying it.

[00:07:57] Speaker 02:
Was this whole TDIU and possible increased rating through TDIU basically severed from the claim stream as soon as he said, the only thing I need and care about is an earlier effective date?

[00:08:11] Speaker 01:
No, Your Honor, because again, he can't

[00:08:14] Speaker 01:
he can't ask the board to do something they have no legal authority to do.

[00:08:18] Speaker 01:
And if the board had understood it to say that, then the proper remedy under the statute and regulations would have been to refer that to the RO to deal with it in either a statement of the case or some other notice.

[00:08:30] Speaker 02:
Well, I thought that's what the board did in 2013.

[00:08:33] Speaker 02:
It remanded the effective date question back to the RO.

[00:08:37] Speaker 01:
But it never had jurisdiction, your honor, over the TDIU rating issue because it was bifurcated.

[00:08:44] Speaker 01:
Again, assuming the court agrees that that happened.

[00:08:46] Speaker 04:
If it didn't, suppose it didn't happen.

[00:08:48] Speaker 04:
Do you lose?

[00:08:52] Speaker 01:
Perhaps.

[00:08:54] Speaker 01:
But again, the error that the Veterans Court made is it went to, it affirmed on grounds different than what the board made.

[00:09:02] Speaker 01:
And the board said it's moot because you are currently receiving more than 100%.

[00:09:07] Speaker 01:
The Veterans Court affirmed because it was implicitly denied in 2013.

[00:09:11] Speaker 01:
That was never subject to a decision by the AOJ, by the board.

[00:09:16] Speaker 01:
Mr. Moore, the first time he gets this notice that there was an implicit denial determination is at the Veterans Court.

[00:09:22] Speaker 01:
And his only option at that point is to appeal to this court, which can't review facts.

[00:09:27] Speaker 01:
And so from a due process,

[00:09:29] Speaker 01:
and just a statutory imperative, he has to be told at some point so that he can challenge those findings.

[00:09:37] Speaker 01:
What's the fact issue?

[00:09:39] Speaker 01:
The fact issue is the implicit denial of the entire analysis, your honor.

[00:09:43] Speaker 01:
What was the claim that was adjudicated?

[00:09:45] Speaker 01:
What was communicated to him?

[00:09:47] Speaker 01:
Whether it was sufficient notice under this court?

[00:09:51] Speaker 01:
And I found Steele, which was issued a couple of weeks ago, which reaffirmed the implicit denial and talks about in Cogburn and some of the other cases in Adams, where there's a lot of fact finding, or at least there's some facts to law, as to whether or not a specific notice

[00:10:08] Speaker 01:
give sufficient information to the claimant that he can be deemed by law to have been on notice that that claim was also denied.

[00:10:18] Speaker 01:
None of that happened until the Veterans Court made that determination and now we're here, which again, this court cannot review facts at all.

[00:10:27] Speaker 01:
So he will never get a chance to challenge those fact findings before any tribunal, which is not how the system's set up and is contrary to the jurisdiction of, well, the board and the court.

[00:10:38] Speaker 04:
So what the Veterans Court is saying, as I understand it, is that under Comer and Roberson, the appeal from the 2001 decision, both in 2013 and 2015, necessarily included a claim for TDIU because it had a substantive claim to PTSD, correct?

[00:11:04] Speaker 04:
Yes, sir.

[00:11:05] Speaker 04:
And that because under

[00:11:08] Speaker 04:
Comer and Roberson, that issue was necessarily implicitly before the board that there's an implicit denial.

[00:11:18] Speaker 04:
And therefore, your client should have appealed, say, the 2013 decision to the Veterans Court at that point saying, you implicitly denied my TDIU claim, and that was error.

[00:11:34] Speaker 01:
Yes, Your Honor.

[00:11:35] Speaker 01:
That's what the Veterans Court ruled.

[00:11:36] Speaker 01:
But again, the implicit denial aspect of that ruling has never been subject to any review ever until now.

[00:11:45] Speaker 01:
And Mr. Moore is entitled by statute to at least get a decision from the board, although we would argue that the AOJ, because of the one review on appeal under 7104A, he should be able to get a de novo review of those findings of fact.

[00:11:59] Speaker 01:
but at least from the board so that he can challenge them at the court.

[00:12:03] Speaker 01:
And right now these fact findings made by the Veterans Court are unreviewable because of this court's limited jurisdiction.

[00:12:10] Speaker 01:
And so what we're asking for is if that's what the Veterans Court thinks, if that's what the Secretary thinks, then the Secretary needs to make those findings a fact in the first instance and then give him an opportunity to challenge them under some form as opposed to now where they're unreviewable.

[00:12:27] Speaker 01:
But I would just highlight, Your Honor, as you said, and the Secretary has never disputed this in any of his filings.

[00:12:34] Speaker 01:
TDIU was raised as part of that appeal that was adjudicated initially, remanded in 2013 and 2015.

[00:12:42] Speaker 04:
The appeal from 2001.

[00:12:44] Speaker 01:
From 2001, yes, Your Honor.

[00:12:46] Speaker 01:
And so far, the only mention of it in any document is the 2006 letter that says we're not going to address it.

[00:12:53] Speaker 01:
And so I'm into my rebuttal time.

[00:12:56] Speaker 01:
Um, so if there are no other questions, I'll preserve the rest of my argument for them.

[00:13:02] Speaker 03:
Mr. Jody.

[00:13:10] Speaker 00:
May it please the court.

[00:13:11] Speaker 00:
This court should affirm the decision of the veterans court because it did not err in affirming the board's determination that any TDIU claim was new.

[00:13:18] Speaker 00:
Mr. Moore attacks the veterans court finding on multiple grounds, each of which fail.

[00:13:23] Speaker 00:
First, I'd like to point out that this issue of whether or not the board determined that the board decision in 2013 severed any previous claim was explicitly found by the 2021 board.

[00:13:39] Speaker 00:
And that was acknowledged by the Veterans Court in its 2023 decision.

[00:13:45] Speaker 00:
I'd also like to mention that we were talking about this 2000.

[00:13:48] Speaker 02:
Wait a second.

[00:13:49] Speaker 02:
You're saying the 2021 board decision?

[00:13:51] Speaker 02:
explicitly rejected the TDIU claim?

[00:13:55] Speaker 00:
It acknowledged that the PTSD issue was resolved in 2013 and that there was a new claim stream beginning in 2018.

[00:14:03] Speaker 02:
Well, what did it expressly say as to TDIU?

[00:14:14] Speaker 00:
I believe the 2021 board's decision is

[00:14:19] Speaker 00:
Yes, correct.

[00:14:21] Speaker 00:
Appendix page 123.

[00:14:23] Speaker 00:
And what it talks about is the PTSD rating.

[00:14:27] Speaker 02:
Right.

[00:14:27] Speaker 02:
It dismissed the issue of increased rating for PTSD, quote unquote.

[00:14:33] Speaker 02:
Is that enough to necessarily also dismiss the issue of TDIU?

[00:14:41] Speaker 00:
It is, because TDIU, at least as I understand it, is what's currently being argued for, is

[00:14:47] Speaker 00:
purely TDIU based off of PTSD, which in this case does not really make that much sense because he already got TDIU in 1997 and got a combined 100 percent scheduler rating in 1998 with an effective date of 1992.

[00:15:04] Speaker 00:
And so my understanding is that there's some sort of theory that TDIU can be used to increase to 70 percent to 100 percent, which again doesn't make sense because the veteran himself at the

[00:15:15] Speaker 00:
And it's at the appendix page 69 through 72, where at the board, he's saying, I am happy with a 70%.

[00:15:23] Speaker 00:
70% PTSD totally resolves the issue of TDIU, which is another way to get in effect a 100% without having the scheduler rating of that.

[00:15:34] Speaker 00:
And so that issue was resolved.

[00:15:36] Speaker 00:
The Locklear case and the Ingram case are clear.

[00:15:38] Speaker 02:
A 70% rating, that makes you potentially eligible for TDIU.

[00:15:42] Speaker 00:
Is that right?

[00:15:45] Speaker 00:
So under the scheduler rules, I think it gets there under that scheduler rule.

[00:15:52] Speaker 00:
But as applied here, it does not apply because he already has 100% rating.

[00:15:57] Speaker 04:
But his argument is not that he's entitled to TDIU, but that it affects his monthly compensation, right?

[00:16:08] Speaker 00:
My understanding is that he's arguing there was some other TDIU claim.

[00:16:13] Speaker 00:
I don't know.

[00:16:14] Speaker 04:
No, no.

[00:16:15] Speaker 04:
But in terms of the practical result, he's saying that the special monthly compensation would be increased if he had TDIU.

[00:16:23] Speaker 04:
That's the argument.

[00:16:26] Speaker 04:
The fact that he had 100% rating doesn't make TDIU irrelevant.

[00:16:30] Speaker 04:
It just means that TDIU is indirectly relevant because it increases the special monthly compensation.

[00:16:38] Speaker 04:
Right?

[00:16:41] Speaker 00:
I don't know exactly what he was articulating.

[00:16:45] Speaker 00:
If that's what he's articulating, I think the fact that the board found that this issue was finally resolved by the PTSD decision in 2013, which said, this is 70%.

[00:16:59] Speaker 00:
It wasn't appealed.

[00:17:00] Speaker 00:
There's no cue.

[00:17:01] Speaker 00:
There's no appeal.

[00:17:02] Speaker 00:
And there was also a waiver.

[00:17:03] Speaker 04:
It seems kind of odd that something was implicitly denied, which wasn't specifically argued to the board.

[00:17:11] Speaker 04:
I mean, but the idea is that it was inherent under Comer and Roberson, right?

[00:17:16] Speaker 04:
That's your theory.

[00:17:18] Speaker 00:
And my understanding is that there were filings earlier in the 2000s regarding... No, no, no.

[00:17:23] Speaker 04:
Just answer my question.

[00:17:25] Speaker 04:
Isn't that your theory?

[00:17:27] Speaker 04:
That it was implicitly before the board under Roberson and Comer, right?

[00:17:33] Speaker 00:
Correct.

[00:17:34] Speaker 00:
In 2013, given what he had filed in the early 2000s, which culminated in the 2011 Auro decision.

[00:17:40] Speaker 04:
Are you familiar with our decision in De Schotel?

[00:17:44] Speaker 00:
That does not come to mind at this moment.

[00:17:46] Speaker 04:
It seems to be relevant here.

[00:17:51] Speaker 00:
So what occurred here is the, and from what I understand, Mr. DeHawkins to be arguing, is that... Just so I understand, are you saying that whenever the VA

[00:18:04] Speaker 02:
denies a claim for an increased rating for a service-connected injury.

[00:18:12] Speaker 02:
It necessarily, implicitly is also denying a TDIU claim without saying so.

[00:18:19] Speaker 00:
So I think there's this issue of bifurcation here.

[00:18:21] Speaker 02:
I'm just talking in the abstract, not about the facts of this case.

[00:18:28] Speaker 00:
I don't know categorically.

[00:18:29] Speaker 04:
The answer is yes, right?

[00:18:30] Speaker 04:
That's what you're arguing.

[00:18:32] Speaker 04:
You're arguing because they addressed the PTSD rating, that they necessarily addressed TDIU, and it was implicit denial of TDIU, and therefore he loses.

[00:18:44] Speaker 04:
He should have appealed to the Veterans Court, right?

[00:18:47] Speaker 00:
In this case, correct.

[00:18:47] Speaker 00:
Yeah.

[00:18:49] Speaker 00:
Categorically, TDIU can encompass multiple disabilities, and that's what happened in the late 90s, where you can have three different conditions.

[00:18:55] Speaker 02:
Yeah, but we're just talking about

[00:18:58] Speaker 02:
one focused condition.

[00:19:00] Speaker 02:
And a veteran claimant is seeking an increased rating for that one condition.

[00:19:06] Speaker 02:
Say he's trying to go from 70 to 80.

[00:19:10] Speaker 02:
And then it gets denied.

[00:19:14] Speaker 02:
Nobody says one word about TDIU.

[00:19:18] Speaker 02:
As a categorical legal matter, has the VA also necessarily denied

[00:19:26] Speaker 02:
any TDIU claim for that condition.

[00:19:29] Speaker 00:
In this case, yes, because it's one condition.

[00:19:32] Speaker 00:
There's no bifurcation.

[00:19:33] Speaker 02:
I mean, I know we have case law from this court that says that when someone, a veteran, makes a claim for an increased rating, or the highest possible rating, implicit in that is a claim for TDIU as well.

[00:19:54] Speaker 02:
And so therefore,

[00:19:56] Speaker 02:
the VA needs to consider the possibility of TDIU.

[00:20:01] Speaker 02:
And I guess what I'm wondering is, is the converse necessarily true?

[00:20:06] Speaker 02:
That when a claim for increased rating gets denied, but nobody says anything about TDIU, is it always true that implicit in that denial for an increased rating for that particular condition is also a denial for TDIU for that particular condition?

[00:20:30] Speaker 02:
If it's just to make sure I understand that TDIU is denied, is there an... No, if an increased rating claim for a particular condition is denied.

[00:20:39] Speaker 04:
TDIU is never discussed.

[00:20:43] Speaker 02:
And TDIU is never mentioned.

[00:20:46] Speaker 02:
As a matter of law, has the VA also necessarily

[00:20:51] Speaker 02:
inherently, implicitly denied any TDIU for that particular condition.

[00:20:58] Speaker 02:
It has, under this... Which case says that when it comes to denials?

[00:21:04] Speaker 00:
So I think the Locklear and Ingram cases at the Veterans Court are important.

[00:21:09] Speaker 00:
Right, I'm talking about right here, the Federal Circuit.

[00:21:13] Speaker 04:
Your best case is to shuttle, which you don't know about.

[00:21:17] Speaker 00:
The cases that I'm familiar with with the Veterans Court, and there may be other cases that I'm not recalling right here on the stand, but I would think that those cases for the Veterans Court, to the extent they've been affirmed or acknowledged by other precedent, would certainly bear a note.

[00:21:35] Speaker 02:
When I asked your opposing counsel about possible abandonment of anything related to a rating, including a TDIU rating,

[00:21:43] Speaker 02:
when Mr. Moore, during the 2012 board hearing, said the only thing he cares about going forward is an effective filing date.

[00:21:53] Speaker 02:
That's earlier than what he had been awarded.

[00:21:58] Speaker 02:
I heard your opposing counsel say, well, at that point, no, there was no jurisdiction for the board to even entertain that possible attempt at abandonment.

[00:22:10] Speaker 02:
Do you have a response to that?

[00:22:13] Speaker 00:
I don't quite understand the argument because there was a 2015 board decision where the effective date was adjudicated, and that became final.

[00:22:23] Speaker 00:
And so the TDIU, which concerns trying to get a higher rating, was finally resolved in 2013.

[00:22:30] Speaker 00:
And so that effective date issue was later resolved in 2015, and there's been no Q claim since.

[00:22:36] Speaker 00:
I would also mention his PTSD.

[00:22:38] Speaker 00:
I was diagnosed in nineteen ninety five and then he later got a hundred percent schedule so I don't practically understand.

[00:22:45] Speaker 00:
You know what that does in terms of an effective date you know and so I think the board and.

[00:22:53] Speaker 00:
The RO acknowledged that this does largely seem academic here.

[00:23:01] Speaker 00:
And I understand Mr. Dohaka is saying, if the idea that the TDIU based on PTSD was not implicitly denied and there's no issue there, then there's a chennery issue.

[00:23:12] Speaker 00:
But I don't see that being implicated either.

[00:23:14] Speaker 00:
Because essentially what the board in 2021 said was, we have two claim streams, one from 2018, which is what is currently before us, and then this other claim stream, which was litigating the 2000s, culminating in a 2011 RO with a 2013 and 2015 board decision.

[00:23:32] Speaker 00:
That's been final.

[00:23:33] Speaker 00:
And those facts, those findings were acknowledged by the Veterans Court, and they found on that basis.

[00:23:40] Speaker 04:
The other basis that the problem is this.

[00:23:43] Speaker 04:
you're talking about something being implicitly denied, which was never explicitly raised.

[00:23:48] Speaker 04:
That seems odd.

[00:23:50] Speaker 04:
And I'm not sure that that's, that Comber and Roberson get you there.

[00:23:59] Speaker 00:
Well, to the extent it was raised, and if he did not raise it, then, you know, then there's the question of whether or not it was just raised by Dintyev.

[00:24:10] Speaker 00:
to the extent there was a pending TDIU issue, it was resolved in 2013.

[00:24:15] Speaker 00:
And so I think the procedural history of this case is quite complex.

[00:24:21] Speaker 00:
But to the extent there was a live TDIU claim, the 2013 board decision, which said your 70% is what it is, he was fine with it, that ended it.

[00:24:31] Speaker 00:
And so that was a basis for finding a new claim stream, for finding that the issue of

[00:24:38] Speaker 00:
PTSD-related TDIU was totally resolved by 2021.

[00:24:42] Speaker 00:
And that's what the Veterans Court said in its 2023 decision.

[00:24:45] Speaker 00:
It also mentioned waiver, because in his briefing before the Veterans Court, he said, in 2011, TDIU was moot.

[00:24:51] Speaker 00:
I think it's on page 147, if I recall correctly, of the appendix.

[00:24:55] Speaker 00:
So there's an acknowledgement it's moot.

[00:24:56] Speaker 00:
And so they, in the Veterans Court in 2023, said, OK, based off of this finding from the board, based off of this

[00:25:05] Speaker 00:
this waiver or concession in our briefing, we affirm the mootness grounds.

[00:25:10] Speaker 00:
Now it did not, as in detail, talk about the sort of

[00:25:19] Speaker 00:
lack of a real monetary impact as much as the board did with respect to whether or not his hundred percent scheduler rating made this whole TDI issue academic, but it did rely on facts found before the board and it did rely on the waivers.

[00:25:34] Speaker 00:
It was a generate issue and given the fact that this was finally resolved in 2013, the board committed no error.

[00:25:43] Speaker 00:
I'm happy to answer any other questions the board may have.

[00:25:47] Speaker 03:
Thank you, Council.

[00:25:50] Speaker 03:
Are you familiar with the shuttle?

[00:26:04] Speaker 01:
I am, Your Honor, and I think that the shuttle is distinguishable primarily because

[00:26:10] Speaker 01:
The issue in DeShoto was service connection for two separate psychiatric disorders.

[00:26:14] Speaker 01:
And when one was denied, the other is implicitly denied.

[00:26:20] Speaker 04:
But here, we're not- Even though there was no explicit argument about the other one.

[00:26:24] Speaker 01:
Correct, Ron.

[00:26:24] Speaker 01:
And I think that that makes sense because from the veteran's perspective, he has psychiatric symptoms, he has psychiatric impairments, and the VA is telling him none of those are related to your service.

[00:26:35] Speaker 01:
And I think that a reasonable person can be

[00:26:38] Speaker 01:
pretty well informed that they've denied any kind of benefits for those psychiatric disorders.

[00:26:46] Speaker 01:
This is different.

[00:26:47] Speaker 01:
This is the VA telling the veteran, we're not going to adjudicate this.

[00:26:52] Speaker 01:
And then the board, without mentioning it, implicitly denying it.

[00:26:57] Speaker 01:
And now the government's standing up here asking this court to rule that the board

[00:27:00] Speaker 01:
in 2021 can implicitly find that the 2013 decision implicitly denied a TDIU rating.

[00:27:08] Speaker 01:
And there's just too much implicit going on here.

[00:27:11] Speaker 01:
And Mr. Moore has left without any kind of remedy, any kind of opportunity to challenge these facts.

[00:27:18] Speaker 01:
PTSD and the TDIU are different.

[00:27:21] Speaker 01:
Here's what the board said in 2021.

[00:27:24] Speaker 01:
The veteran was awarded TDIU in 1997 with an effective date of 97.

[00:27:28] Speaker 01:
That was for a combination of disabilities.

[00:27:31] Speaker 01:
Subsequently, they talked about his current ratings where he's currently receiving SMC.

[00:27:36] Speaker 01:
Therefore, the issues concerning a TDIU are moot.

[00:27:39] Speaker 01:
It does not relate back to, it does not say a prior claim was distinguished because it was implicitly denied.

[00:27:46] Speaker 01:
It says, today, you are more than 100%.

[00:27:49] Speaker 01:
And so even if we were to address a TDIU rating, it wouldn't matter.

[00:27:54] Speaker 01:
To Judge Chen's point, I think that you're exactly right, Your Honor.

[00:27:58] Speaker 01:
Comer and Roberson stand for the proposition that TDIU can be reasonably raised.

[00:28:04] Speaker 01:
And if it were to be implicitly denied, then none of those cases would have come out the way that they did.

[00:28:11] Speaker 01:
Those cases are solid case law.

[00:28:13] Speaker 01:
They've been reaffirmed over and over and over.

[00:28:15] Speaker 01:
when it's raised, the VA has to address it.

[00:28:18] Speaker 04:
And a decision on something else does not, as a matter of law, always... Homer and Roberson say that it's implicitly raised when you raise the underlying rating.

[00:28:30] Speaker 04:
And it's not a separate claim.

[00:28:33] Speaker 04:
And so the idea is that there's an implicit denial

[00:28:38] Speaker 04:
Even though it's not explicitly raised because it's inherently part of the other claim.

[00:28:42] Speaker 01:
That's the theory, right?

[00:28:43] Speaker 01:
That is your honor.

[00:28:44] Speaker 01:
And it goes on to say that the VA owes a determination on that, on that issue, on that rating issue.

[00:28:50] Speaker 01:
And if those, if it was always implicit, implicitly denied.

[00:28:54] Speaker 01:
then Comer wouldn't exist in the way that it does.

[00:28:57] Speaker 01:
Comer, in particular, says that when you raise the issue, the VA has to issue a decision on it.

[00:29:04] Speaker 01:
And here, again, the only communication that mentions TDIU is we are not going to address it, ever.

[00:29:14] Speaker 01:
over my time, so unless there are any questions... You might finish your comment.

[00:29:18] Speaker 01:
Oh, well, the only other thing that I was going to say, Your Honor, is that to the mootness issue, I'm sorry, to 2011, post 2011, that cannot extend prior to that.

[00:29:28] Speaker 01:
And the reason that this all matters is because if he were to get a TDIU for PTSD alone from 1996 to 2005,

[00:29:37] Speaker 01:
he would go from $100 to SMCS, which is about $200 a month for those 9 to 10 years.

[00:29:44] Speaker 01:
And so it really does matter.

[00:29:45] Speaker 04:
And it doesn't matter as far as TDIU is concerned.

[00:29:49] Speaker 04:
Just it matters.

[00:29:49] Speaker 04:
It's a special month.

[00:29:51] Speaker 01:
Exactly, Your Honor.

[00:29:53] Speaker 03:
Thank you, Counsel.

[00:29:54] Speaker 03:
The case is submitted.