[00:00:00] Speaker 02:
The next case is Shaw versus Collins, number 24-1070.

[00:00:03] Speaker 02:
Mr. Niles, when you're ready.

[00:00:06] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 03:
And may it please the court, John Niles of Carpenter Chartered for Mrs. Shaw.

[00:00:13] Speaker 03:
And as always, when I appear as an officer of this court, I mention the latter because this is an appeal that has problems.

[00:00:20] Speaker 03:
And what I hope to do this morning is to spend about 90 seconds going through Mrs. Shaw's affirmative argument and then discussing those problems.

[00:00:27] Speaker 03:
And with hope, persuading Your Honors that her affirmative position survives each.

[00:00:34] Speaker 03:
Mrs. Shaw's principal position is that the Veterans Court are in ordering dismissal.

[00:00:39] Speaker 03:
The Veterans Court has jurisdiction to review board denials, and that includes jurisdiction to review board denials that are implicit.

[00:00:48] Speaker 03:
When the board

[00:00:50] Speaker 03:
passes through a threshold issue on its way to deciding another issue that resides conceptually downstream of it.

[00:00:58] Speaker 03:
The board's decision as to that downstream issue then also reflects that the board has decided the issue at the threshold.

[00:01:05] Speaker 02:
And so here, the problem with this is that may apply in general direct appeal before decisions, but this is a cue claim.

[00:01:14] Speaker 02:
And there are different rules for cue claims.

[00:01:16] Speaker 02:
Andre says you have to specifically allege the error, right?

[00:01:21] Speaker 03:
There are differences between Q claims and other contacts, Your Honor.

[00:01:25] Speaker 03:
But this particular upstream downstream relationship is not one of them.

[00:01:30] Speaker 03:
The Veterans Court has chosen to adopt the Article III case or controversy requirements, including that it considers advisory opinions to be prohibited.

[00:01:38] Speaker 03:
And so in order then to reach whether to revise the September 1968 rating decision for Q, first of all, the Veterans Court must

[00:01:49] Speaker 03:
be able to show or must be able to reach and pass through the issue of whether the September 1968 rating decision has become final.

[00:01:57] Speaker 02:
And if it's not a final decision, there's no Q claim because it's still alive.

[00:02:03] Speaker 02:
You could file a separate challenge to the 1980s.

[00:02:07] Speaker 02:
If the 1968 decision was still alive, you could file a notice of disagreement to the board, right, if it was still alive.

[00:02:15] Speaker 02:
You don't attack it under a cube theory, though.

[00:02:18] Speaker 02:
I'll even go a step further back, Your Honor, and there are several different options.

[00:02:22] Speaker 02:
No, no, you don't have to go a step further.

[00:02:23] Speaker 02:
Your problem is, and I get your problem, your problem is that if you have a theory as to why the 1968 decision is no longer final,

[00:02:35] Speaker 02:
If Mr. Shaw was still alive, you could raise it under a regular route.

[00:02:40] Speaker 02:
But you can't.

[00:02:41] Speaker 02:
All Mrs. Shaw can do is step in and try to get the benefits for the claims that are pending, right?

[00:02:47] Speaker 02:
And the only theory still pending is a Q claim.

[00:02:52] Speaker 03:
Or then a DiCarlo communication made to the regional office in the first instance saying that September 1968 written decision is non-final.

[00:03:00] Speaker 02:
I'm sorry, I didn't understand that.

[00:03:01] Speaker 02:
Say that again.

[00:03:02] Speaker 03:
Yeah, so there is no prescribed form for saying that there is a pending unadjudicated claim or issue.

[00:03:11] Speaker 02:
Sure, but.

[00:03:13] Speaker 02:
Mr. Shaw has to do it.

[00:03:15] Speaker 02:
Is there another vehicle out there that you think is that he is actually made this, that she can step in the shoes of doing it?

[00:03:22] Speaker 02:
Because it's not going to be in this Q claim.

[00:03:24] Speaker 02:
His Q claim did not raise a finality theory.

[00:03:27] Speaker 02:
In fact, a Q claim can never raise finality theory because the premise of Q is that there's a final decision and a Q claim is a collateral attack on that final decision.

[00:03:37] Speaker 03:
In the appendix 117, Mr. Shaw, through counsel before the board, said that this is final.

[00:03:42] Speaker 03:
Right.

[00:03:43] Speaker 03:
That's right.

[00:03:44] Speaker 03:
So there are absolutely warts in this case.

[00:03:46] Speaker 03:
Mrs. Shaw, and I will submit that this is a different way.

[00:03:49] Speaker 02:
Right.

[00:03:49] Speaker 02:
And Mrs. Shaw is not attempting to renew the Q arguments he made.

[00:03:54] Speaker 03:
That's correct.

[00:03:55] Speaker 02:
OK.

[00:03:56] Speaker 02:
Her argument is that the 1968 decision was final.

[00:04:00] Speaker 02:
It's not final.

[00:04:01] Speaker 02:
Right.

[00:04:01] Speaker 02:
That was not part of the Q claim.

[00:04:03] Speaker 02:
So no, no, that was not part of Mr. Schall's cue claim, right?

[00:04:07] Speaker 02:
It wouldn't ever be part of Mr. Schall's cue claim, because if his argument that it's not final, it wouldn't be raised as a cue claim, because it's a much harder burden for the veteran to meet.

[00:04:17] Speaker 02:
If he has an argument that there was no final decision, then he would just file a notice of disagreement, right?

[00:04:25] Speaker 02:
Or ask the RO and say, wait a minute, I still have this pending unadjudicated claim.

[00:04:31] Speaker 02:
Give me a decision on that.

[00:04:33] Speaker 03:
And I understand your honest concerns.

[00:04:35] Speaker 03:
And the only reason why I'm not saying yes, yes, yes is because I do believe that Mrs. Shaw, and this would be a different case, would be able to say, through a DeCarlo communication to the regional office,

[00:04:46] Speaker 02:
at this point going forward, that the September 1968 rating decision was never... Are you saying you think there's another vehicle out there for her to challenge the 1968 decision?

[00:04:57] Speaker 03:
Yes, you are.

[00:04:57] Speaker 02:
Then why aren't you doing that instead of trying to inject a new theory into the Q claim that was clearly not before the board?

[00:05:06] Speaker 03:
The reason is clarity as to the Veterans Court's scope of jurisdiction at this point.

[00:05:12] Speaker 02:
Well, I don't think anything's unclear.

[00:05:14] Speaker 02:
The Veterans Court can't address a cue theory that wasn't raised to the board.

[00:05:21] Speaker 02:
And if you think this stuff about the other vehicle, I'm just asking because I think there might have been for the veteran, I don't know what your view is on her.

[00:05:29] Speaker 02:
If that's out there, I hope you're going to pursue it for her.

[00:05:33] Speaker 02:
But it doesn't seem like you can suggest that because a cue claim is premised on finality, that that necessarily encompasses, as part of that cue claim, a notion that it may not have been filed.

[00:05:48] Speaker 02:
That doesn't even make any sense.

[00:05:50] Speaker 02:
Right.

[00:05:51] Speaker 02:
If you win on your argument that his 1968 claim was never finally adjudicated, then the Q claim is also improper.

[00:06:01] Speaker 02:
You can't file a Q claim against a non-final decision.

[00:06:04] Speaker 02:
Right.

[00:06:06] Speaker 02:
I mean, the answer to that is yes.

[00:06:08] Speaker 03:
The answer to that is it can be filed.

[00:06:10] Speaker 03:
It is, but what then the proper analysis would be used to be called the wrong thing.

[00:06:14] Speaker 02:
This is not the right vehicle, and you have a different vehicle, or she's in the unfortunate decision of Mr. Schall could have filed

[00:06:23] Speaker 02:
something at the RO and revive this, but because she's only gets to step in for passage of benefits on claims he had filed, she can't file a new thing.

[00:06:34] Speaker 02:
And you don't have to tell me what vehicle you think might be out there for her to step into.

[00:06:38] Speaker 02:
If you have one for her, please do it.

[00:06:40] Speaker 02:
Maybe she is entitled.

[00:06:41] Speaker 02:
Maybe the board or the RO didn't fully adjudicate his 1968 claim.

[00:06:45] Speaker 02:
That's not before us.

[00:06:47] Speaker 03:
Yes, Your Honor.

[00:06:47] Speaker 03:
So this does not sound promising then for Mrs. Shaw.

[00:06:50] Speaker 02:
Well, if there's any more arguments you want to make, you've got about eight minutes, but I don't understand the basic premise of your argument that because a cue claim always involves a finality issue, because that's the only way it is a cue claim, that somehow the board and the Veterans Court can review whether it wasn't final under a cue vehicle.

[00:07:17] Speaker 03:
And so the premise of bringing a motion for revision for Q is absolutely a belief that a prior decision has become final.

[00:07:25] Speaker 03:
That belief is not always correct.

[00:07:26] Speaker 03:
This is a system where something like 90% of veterans appear without representation, and attorney representation, that is.

[00:07:34] Speaker 03:
And even attorneys don't always get this right.

[00:07:36] Speaker 03:
Q is very complex.

[00:07:37] Speaker 02:
Right.

[00:07:37] Speaker 02:
But if they get it wrong, then you file using the proper procedural vehicle, not the Q claim.

[00:07:45] Speaker 03:
And I would perfectly understand that with this court's decision.

[00:07:48] Speaker 03:
On Mrs. Shaw's interpretation of the law as it is in her understanding of the law, for the board and then for the Veterans Court to address Q, there must be a final decision.

[00:08:00] Speaker 03:
And for them then to reach that issue, to avoid issuing a prohibitive advisory opinion as to whether there was clear and unmistakable error in the September 1968 rating decision here, then that has to be non-final.

[00:08:14] Speaker 03:
or rather, it has to be final.

[00:08:16] Speaker 03:
And so the issue of nonfinality is one that we are in a claim stream today, where there are a few proceedings.

[00:08:24] Speaker 03:
They've been brought up to the board, brought up to the Veterans Court.

[00:08:26] Speaker 03:
The Veterans Court is looking at this board denial of Q. And so within its jurisdiction then, it may address the finality of the September 1968 rating decision there and then without requiring now Mrs. Shaw to try to start over at the regional office and go up from there.

[00:08:42] Speaker 03:
And so, okay, I think we have your argument, Mr. Niles.

[00:08:45] Speaker 02:
Thank you, your honor.

[00:08:46] Speaker 02:
Let's hear from the government and then you can respond.

[00:08:53] Speaker 01:
Good morning and may it please the court.

[00:08:57] Speaker 01:
Your questions have reflected our position in the case that, first of all, the court needed to go no further than the abandonment analysis.

[00:09:04] Speaker 01:
The Veterans Court explicitly acknowledged that it did have jurisdiction in the case.

[00:09:08] Speaker 01:
It had jurisdiction over the Q claim that was presented to and decided by the board.

[00:09:14] Speaker 01:
The entirety of that claim was abandoned on appeal.

[00:09:18] Speaker 01:
So that everything else that, that isn't brief.

[00:09:21] Speaker 02:
Can I just ask you, what would have happened if the Veterans Court had looked at his, Mr. Shaw's actual Q claims and, and then look further in a record and said, wait a minute, the 1968 decision isn't final at all.

[00:09:37] Speaker 02:
they would then probably, would they have dismissed it for lack of jurisdiction?

[00:09:41] Speaker 02:
Because there actually isn't a final decision that you could attack under a cue.

[00:09:48] Speaker 01:
So I think the answer to that could be found in the Veterans Court's analysis in the Richards case, which is cited in BEAN.

[00:09:57] Speaker 01:
It's cited alongside the last paragraph of BEAN, and that is 20 VET App 64.

[00:10:03] Speaker 01:
There are certain types of cue claims, not the cue claim presented to the board in this case, but there are certain types of cue claims, for example, a Roberson type analysis, and it's like the one that's raised at page 175 to 120 of the appendix, where the argument is that in the decision being challenged, even though

[00:10:26] Speaker 01:
It was a decision on the claims, and it was received, and the notice of appeal rights was provided, so it could have been appealed.

[00:10:32] Speaker 01:
So it doesn't present the sort of issue that's discussed in Cooked, where it's a notice problem that prevents the appellate process from functioning.

[00:10:39] Speaker 01:
So it is a Q claim.

[00:10:40] Speaker 01:
It's presentively final.

[00:10:42] Speaker 01:
But the argument is that the clear and unmistakable error in that decision is that the VA failed to adjudicate a reasonably raised claim.

[00:10:49] Speaker 01:
So that comes up in the Roberson example, where

[00:10:51] Speaker 01:
someone is claiming one disability, and they're also saying, oh, and I can't work at all.

[00:10:57] Speaker 01:
And then the disability is resolved, but there's no TVIU claim resolved.

[00:11:01] Speaker 01:
The way to get at that, allegedly appending TVIU claim, is to bring a Q claim as to the decision on the resolved disability, and to say, the VA failed to reasonably address all raised claims.

[00:11:14] Speaker 01:
And the way the Richards Court addresses this is to say, you bring the Q claim,

[00:11:20] Speaker 01:
The VA has to decide, was there another reasonably raised claim that was not decided and remains pending.

[00:11:27] Speaker 01:
If the VA determines that, then that pending claim is no longer part of a Q analysis.

[00:11:33] Speaker 01:
That has to be decided in the first instance.

[00:11:35] Speaker 01:
But the procedural vehicle to ask the VA to resolve whether there is

[00:11:40] Speaker 01:
a reasonably raised claim in a prior decision that wasn't addressed.

[00:11:44] Speaker 01:
You have to bring it through a Q claim, because you have all the prerequisites for an otherwise final decision.

[00:11:51] Speaker 01:
So I think that's what, when the Knowles case talks about.

[00:11:55] Speaker 02:
So your view is, I think, slightly different from

[00:11:59] Speaker 02:
Mr. Niles said if there is some evidence that somehow there are pending unadjudicated claims from 68, you would still file a Q claim and explain how that is.

[00:12:14] Speaker 02:
But Ms.

[00:12:15] Speaker 02:
Shaw probably can't do that.

[00:12:17] Speaker 01:
That's right, because under the decision in Cruz, she can't file a new Q claim.

[00:12:22] Speaker 00:
I do think that actually Q. Do you agree with the concept that there might be another vehicle for Mrs. Shaw to get relief?

[00:12:28] Speaker 00:
You don't have to tell us the specific vehicle, but is there some possibility of relief here?

[00:12:34] Speaker 01:
I am not aware of one.

[00:12:36] Speaker 01:
I don't feel I can speak to that.

[00:12:38] Speaker 02:
But if hypothetically there's a letter or something out there

[00:12:43] Speaker 02:
that after he got the final decision, he sent something to the BA that could have been construed as a notice of disagreement.

[00:12:53] Speaker 02:
If that's the case, then it's probably a pending unadjudicated claim.

[00:12:57] Speaker 01:
That would be a different scenario.

[00:12:59] Speaker 01:
I think that would be more like what Knowles refers to, where

[00:13:05] Speaker 01:
there is genuinely something that has not been acted on.

[00:13:08] Speaker 01:
But you're not aware of anything in that.

[00:13:09] Speaker 01:
I'm not aware of that.

[00:13:11] Speaker 02:
And even if you were, it doesn't matter to this case.

[00:13:16] Speaker 02:
I mean, she can present those arguments to a regional office or the board that, look, after my husband got this decision, he actually did take steps to appeal it.

[00:13:29] Speaker 02:
That's not what the record we have here, though, is.

[00:13:31] Speaker 01:
Right, the Veterans Court decision simply said it did not possess jurisdiction to address these new claims.

[00:13:37] Speaker 01:
So it didn't issue any decision at all on them.

[00:13:39] Speaker 01:
So anything that was available before is not precluded by the Veterans Court's decision.

[00:13:44] Speaker 01:
It simply said it did not possess jurisdiction.

[00:13:46] Speaker 02:
And next time, that remains true even if we affirm the Veterans Court, right?

[00:13:49] Speaker 01:
Exactly, because the court is affirming the jurisdictional decision by the Veterans Court.

[00:13:55] Speaker 02:
Anything further?

[00:13:56] Speaker 01:
Unless there are no further questions, we ask the court to affirm.

[00:13:59] Speaker 02:
Thank you.

[00:14:08] Speaker 03:
Thank you, Your Honor.

[00:14:09] Speaker 03:
That's one point to reiterate.

[00:14:10] Speaker 03:
And then, of course, we'd be pleased to answer any questions the court has.

[00:14:14] Speaker 03:
The point to reiterate is that no matter what other options there are or not or might be for Mrs. Shaw to proceed through other procedural devices, she's here now.

[00:14:25] Speaker 03:
And the question is whether the Veterans Court earned in dismissing the appeal.

[00:14:29] Speaker 03:
That is the one point I wanted to reiterate.

[00:14:32] Speaker 03:
If that report does, Chris, have no other questions, then I will relinquish the roommate over my time.

[00:14:38] Speaker 02:
Thank you.

[00:14:38] Speaker 02:
Thank you.

[00:14:38] Speaker 02:
The case is submitted.