[00:00:00] Speaker 04:
We have four cases for argument this morning.

[00:00:04] Speaker 04:
The first is Schulman v. Collins, number 23-2003.

[00:00:10] Speaker 04:
Mr. DeHawkes, when you're ready.

[00:00:15] Speaker 03:
Thank you, Your Honor.

[00:00:15] Speaker 03:
May it please the Court?

[00:00:16] Speaker 03:
On behalf of Mr. Schulman, I'd like to thank this Court for the opportunity to present his appeal.

[00:00:22] Speaker 03:
Before this Court, it is an appeal that asks to find that the Veterans Court erred when it found it did not have jurisdiction over Mr. Schulman's appeal.

[00:00:32] Speaker 03:
The primary issue in here in this case is what the board did in its 2021 decision.

[00:00:38] Speaker 03:
As Mr. Shulman argued in his opening brief, there was a rating decision that was appealed to the board where there were two different periods of service, 2000 to 2003, which the AOJ initially found was honorable, later overturned that, and then a 2003 to 2007 period of service.

[00:00:55] Speaker 03:
Mr. Shulman asked the board to overturn the AOJ's

[00:01:01] Speaker 03:
illegal finding that the first period of service was not honorable and then to address the service connection disability issues.

[00:01:10] Speaker 03:
The Veterans Court's decision, I'm sorry, the Board's decision only addressed the 2003 to 2007 period of service and either implicitly affirmed the AOJ's finding.

[00:01:20] Speaker 04:
What did the Board say with regard to the service, the honorable service thing?

[00:01:24] Speaker 04:
Did it send it back for another look?

[00:01:27] Speaker 03:
It only, Your Honor, it only addressed the second period of service.

[00:01:31] Speaker 03:
And that's where the real dispute in this case is.

[00:01:34] Speaker 03:
Because under VA law, a veteran can receive benefits for a period of honorable service, even though a later or subsequent period was dishonorable.

[00:01:43] Speaker 03:
The AOJ initially found that he had honorable service.

[00:01:47] Speaker 03:
That was binding under the new AMA statutes.

[00:01:50] Speaker 03:
And then the AOJ overturned that favorable finding.

[00:01:53] Speaker 03:
And that's really the determination that was sent up to the board

[00:01:57] Speaker 03:
in the Notice of Disagreement.

[00:02:00] Speaker 03:
So when the Board's decision only talked about remanding that second period of service, it essentially either under

[00:02:21] Speaker 04:
What did the board do?

[00:02:24] Speaker 04:
The board remanded, right?

[00:02:26] Speaker 04:
The board said, on that second period of service, take another look.

[00:02:32] Speaker 04:
We think it might be honorable.

[00:02:34] Speaker 04:
Yes, Your Honor.

[00:02:35] Speaker 04:
Okay.

[00:02:35] Speaker 04:
So the first period is already honorable, and the second period is the point of contention on whether that's honorable or not.

[00:02:43] Speaker 03:
No, Your Honor.

[00:02:44] Speaker 03:
The second period of service is not before any court.

[00:02:47] Speaker 03:
That was remanded.

[00:02:48] Speaker 04:
That's what I mean.

[00:02:49] Speaker 04:
That's what the board did.

[00:02:51] Speaker 04:
Correct.

[00:02:51] Speaker 04:
And it didn't address the underlying service connection issue.

[00:02:55] Speaker 03:
It did not for that period of service.

[00:02:59] Speaker 03:
But as we pointed out in the briefing, the first period of service was initially found to be honorable, which means he is now eligible for...

[00:03:10] Speaker 04:
What are you trying to get from us?

[00:03:12] Speaker 04:
I mean, even if the Veterans Court had addressed this, they would have remanded all of it back to the board and ought to the RO, which is where it's all at anyway, right?

[00:03:20] Speaker 03:
No, Your Honor.

[00:03:21] Speaker 03:
It would have been remanded back to the board in order for it to make a determination on the Notice of Disagreement that was submitted to it.

[00:03:29] Speaker 04:
Once Mr. Shulman filed his Notice of Disagreement... Had the RO ever ruled on the service connection issues for the second period of service?

[00:03:37] Speaker 03:
I don't, but not before the board's decision.

[00:03:39] Speaker 04:
And the board would have sent it back.

[00:03:41] Speaker 04:
I'm sorry, Your Honor.

[00:03:42] Speaker 04:
And the board would have sent it back.

[00:03:43] Speaker 04:
It would all be back before the RO.

[00:03:46] Speaker 03:
It may very well, but what's important to keep in mind in this case, and the Veterans Court's last ruling, the last memorandum decision, appendix 141, points to this later determination that addressed a later 2022 claim.

[00:04:05] Speaker 03:
this appeal started at least as early as 2019 and potentially goes back to 2017.

[00:04:12] Speaker 03:
And so when the board refused or ignored the contentions on the compensation benefits for that first period of service, it was essentially affirming the denial of the benefits from that earlier date.

[00:04:30] Speaker 03:
And without intervention by the court,

[00:04:32] Speaker 03:
There's no, Mr. Schulman is not going to be able to get that issue addressed.

[00:04:38] Speaker 03:
Right now, all he has is a grant of benefits from a 2021 claim, which post-dates this board's decision and post-dates the claim by at least two years, again, up to four years, and a denial of benefits on that same 2022 effective date.

[00:04:55] Speaker 03:
So without resurrecting this appeal at the court and ordering the board to address it,

[00:05:01] Speaker 03:
the Mr. Shulman is going to lose out on at least two, possibly four years of benefits.

[00:05:07] Speaker 03:
And that's why this appeal was filed.

[00:05:09] Speaker 03:
And that's why we are seeking guidance from the court.

[00:05:11] Speaker 04:
Are any earlier effective aid in the appeal stream that actually awarded him benefits based upon this argument?

[00:05:21] Speaker 03:
Because there was, well, there may not have been continuous pursuit.

[00:05:27] Speaker 03:
Because the way that the VA

[00:05:30] Speaker 03:
received these claims, they called it a new claim, they rejected a supplemental claim, they asked for a 526, which under the effective date rules under 5110, that's the date of claim.

[00:05:41] Speaker 03:
And so the

[00:05:46] Speaker 03:
And the second period of service, again, is not really at issue here because the first period of service was found to be honorable.

[00:05:53] Speaker 03:
And as the procedural history in this case really highlights, the VA keeps telling him... Can you just tell me where we are now?

[00:05:59] Speaker 04:
I know the subsequent stuff isn't part of the record, but you seem to know it.

[00:06:03] Speaker 04:
What does he have now?

[00:06:04] Speaker 04:
He has a grant of service connection for the underlying conditions you saw in this original?

[00:06:11] Speaker 03:
only the ptsd ok the other ones have been denied and they are but you're not going to appeal the right direction i think they've all been admitted appealed in some administrative manner uh... actually didn't update it exactly where they are in the process but they're somewhere before the in their what effective date are they for uh... twenty november twenty twenty one is the current data claim for each of those the grant of benefits the effective date is november twenty twenty one

[00:06:38] Speaker 03:
and I believe that when that grant happened there was a supplemental claim file that addressed only the rating and so there may or may not even be an effective date issue depending on

[00:06:50] Speaker 03:
There's still some unclarity on how that happens.

[00:06:54] Speaker 04:
OK, let me get back to what's going on in this case.

[00:06:56] Speaker 04:
Because I'm not even sure that I understand what legal argument you're making that gives us jurisdiction.

[00:07:02] Speaker 04:
Because it seems to me that the Veterans Corps looked at the specific board decision and said the only thing the board decided here was the honorable service issue.

[00:07:13] Speaker 04:
And it remanded that.

[00:07:15] Speaker 04:
And so therefore, there's no final decision before that.

[00:07:20] Speaker 04:
What legal issue are you saying?

[00:07:22] Speaker 04:
Are you saying that every time you present a claim for both the first, I don't know what, I forget what you were calling it, but basically, whether it's honorable service or not, the character of service thing, and then the underlying merits of the claim, if the board doesn't address the underlying merits, it's implicitly denied?

[00:07:44] Speaker 03:
uh... well that's technically correct your honor that's actually what the secretary argues is that this it the first i'd the first element to prove the first predicate is veteran status without that the entire claim is is is but it doesn't mean that they care that they've actually issued a decision on that is that they won't reach it because you haven't established the predicate that's true again for the second period of service on which had started out being dishonorable and the board remanded it

[00:08:14] Speaker 03:
but again that first period of service was already determined to be on the v a overturned that in mister shulman's opinion in with mister shoulders position without following the statutes and regulations to show clear and unmistakable error and by by overturning that he was also i think it's also very application of law that

[00:08:37] Speaker 04:
You're talking about the specifics of what the VA and the board here did, and the Veterans Court determined in its decision that it didn't have jurisdiction because all the board did was remand the character service issue and didn't reach.

[00:08:52] Speaker 04:
the actual underlying merits of the claim.

[00:08:55] Speaker 04:
If that's true, then let's just stop there.

[00:08:58] Speaker 04:
Let's accept that's true, that that's the board's correct, or that's the Veterans Court correct reading of the board's decision.

[00:09:06] Speaker 04:
Isn't that right that they don't have jurisdiction?

[00:09:10] Speaker 03:
If the board only had before it the period of service and it remanded it, then yes, that would be correct, Your Honor.

[00:09:19] Speaker 03:
However, again, there were two different

[00:09:22] Speaker 03:
issues that were brought up to the board, that first period of service, which is undisputed that the VA found to be honorable.

[00:09:30] Speaker 03:
The secretary in his brief acknowledges that in his facts.

[00:09:36] Speaker 03:
We don't think that that's a disputed fact.

[00:09:38] Speaker 03:
It's also not disputed that the VA later overturned that decision and made it dishonorable.

[00:09:44] Speaker 03:
And it's also undisputed that his notice of disagreement raised that issue specifically to the board.

[00:09:50] Speaker 03:
And so even though, yes, this court does not have jurisdiction for facts to law, it is a legal question when the facts are undisputed.

[00:09:59] Speaker 04:
Well, can you state the legal question, the rule of law you think we need to apply or to articulate that the Veterans Court got wrong?

[00:10:07] Speaker 03:
So we think that this is a bean issue, Your Honor.

[00:10:11] Speaker 03:
The veteran received a decision from the AOJ.

[00:10:14] Speaker 03:
He presented an appeal to the board.

[00:10:17] Speaker 03:
And the board either implicitly denied it or, more correctly, I think, ignored it and didn't make any findings of fact.

[00:10:24] Speaker 03:
In either case, I think this is closer to being where they just didn't address it.

[00:10:30] Speaker 00:
Can I ask you, so your rule of law, just following what you're saying, your rule of law would be whenever a lower tribunal is presented an issue and they remand and they did not address one of the issues presented, there is a right to an appeal.

[00:10:46] Speaker 00:
Would that be your argument?

[00:10:50] Speaker 03:
I don't believe in every case your honor but I think again in this case and similar cases like this where there are two distinct issues and I would say if let's say that the issues were PTSD and a knee condition and both of them were appealed and the board remanded the knee and ignored the PTSD issue.

[00:11:14] Speaker 03:
I don't think that there's any dispute that that board was required under being to have addressed that.

[00:11:19] Speaker 03:
And because of that, the Veterans Court has jurisdiction.

[00:11:23] Speaker 03:
And I think that even though we're talking about similar, I admit there are quite a bit of similarity between the issues in this case.

[00:11:34] Speaker 03:
But again, there was a distinct determination by the AOJ to overturn a favorable finding that allowed him to receive compensation for that period of service

[00:11:44] Speaker 03:
And the board never mentioned it one time in its decision.

[00:11:47] Speaker 03:
And it is that determination that Mr. Schulman seeks review by the Veterans Court with an order to tell the board to address it on the earlier 2019 claim.

[00:11:59] Speaker 03:
I'm about up to my rebuttal time.

[00:12:02] Speaker 03:
But if there are no other questions, then I'll save the rest for after this.

[00:12:06] Speaker 03:
Thank you.

[00:12:07] Speaker 04:
Thank you.

[00:12:09] Speaker 04:
Mr. Golden.

[00:12:24] Speaker 01:
Good morning.

[00:12:24] Speaker 01:
May it please the court?

[00:12:26] Speaker 01:
I think the courts identified the issue here, which is that we have a case where there's been a divergence into multiple appeal streams, and they're getting somewhat confused.

[00:12:34] Speaker 01:
If the court will permit me, I'd just like to run through the history a little bit to explain why we are where we are right now and where the other claims are in the process before the VA, the board, and the Court of Veterans Claims.

[00:12:46] Speaker 01:
So as my opposing counsel correctly noted, there were two periods of service from August 2000 to August 2003.

[00:12:52] Speaker 01:
at which point the veteran was stopped, lost and continued through to December 2003.

[00:12:58] Speaker 01:
And that's the critical point where these cases have diverged.

[00:13:04] Speaker 01:
If the VA has found that that first period was honorable and has given a character service rating in favor of the veteran, those cases are progressing through the VA system.

[00:13:16] Speaker 01:
There has been also a service connection determination with respect to 2000 to 2003 in favor of the veteran as of 2022, where he's received service connection for PTSD, he was denied service connection for other claims, and he has appealed those claims, and that appeal is processing, I believe, before the board right now.

[00:13:33] Speaker 01:
Separately, there have been decisions regarding his second period of service, which was supposed to be until December 2003, but because he went absent without leave has continued through to 2007.

[00:13:43] Speaker 01:
That is the period that was before

[00:13:48] Speaker 01:
Court of Veterans Court before the board in May 2021, before the RO in November 2020.

[00:13:55] Speaker 01:
And there is some confusion in the situation as the board points out, as the Veterans Court points out.

[00:14:00] Speaker 01:
There have been times from Mr. Shaw's case where there have been either duplicate filings or there have been two different letters that in this case, because of multiple filings appealing potentially the same decision,

[00:14:11] Speaker 01:
there have been some disagreements and I believe it is now at this point between the various positions and rulings of the board and the court of veterans claims we're finally getting a position where we know where these two streams are.

[00:14:24] Speaker 01:
Mr Shuman received a letter in November 2020 that told him that his entire cabinet service was being deemed dishonorable

[00:14:31] Speaker 01:
The veterans court, the board then correctly noted this was a conflict of an early decision.

[00:14:35] Speaker 01:
It came out just after the board's remand, finding the opposite, that he had at least some honorable service.

[00:14:42] Speaker 01:
And therefore they put him back into position.

[00:14:45] Speaker 01:
In May, 2021, the board said, well, the only, you've already found honorable character service for 2000, 2003.

[00:14:52] Speaker 01:
Let's look at 2003 to 2007.

[00:14:54] Speaker 01:
We need to remand that down for your character service.

[00:14:58] Speaker 01:
before we can get to questions of service connections, so on, for the second period of service.

[00:15:03] Speaker 01:
So that's where we are.

[00:15:04] Speaker 01:
That's the decision that was before the Veterans Court.

[00:15:06] Speaker 01:
It was thinking about remand.

[00:15:08] Speaker 04:
What you just said, I just want to clarify that.

[00:15:11] Speaker 04:
So I get the board decision at issue here is remanding the second period of service for a service of character review.

[00:15:20] Speaker 04:
That thing you just said before that about whether it was mistaken or not about the entire service

[00:15:26] Speaker 04:
being dishonorable.

[00:15:27] Speaker 04:
Was that before or after this board decision?

[00:15:29] Speaker 01:
So that was before this board decision.

[00:15:31] Speaker 01:
That was the letter that was received.

[00:15:32] Speaker 01:
The letter had come out, I believe, within a few days of the November board decision.

[00:15:37] Speaker 01:
So there's a November VA letter.

[00:15:40] Speaker 01:
There's a November board decision.

[00:15:41] Speaker 01:
I think they're literally within a week of each other.

[00:15:44] Speaker 01:
The board decision is the one that then leads to... The two board decisions both agree in the exact same way.

[00:15:50] Speaker 04:
That letter came from the secretary, not the board.

[00:15:56] Speaker 04:
Is there any indication that that was before the board when it issued the remand?

[00:16:00] Speaker 01:
Yeah, exactly.

[00:16:01] Speaker 01:
That's what I believe and I appreciate the clarification.

[00:16:06] Speaker 01:
That November, November 24th decision leads to a January 2, 2021 notice of disagreement which leads to this May, that's the notice of disagreement that leads to the briefing that leads to the May 2021 board remand.

[00:16:26] Speaker 01:
That's the decision that's then appealed to the Veterans Court and that's the decision and again

[00:16:32] Speaker 01:
The argument here, as I understand it, is that when the Board and the Veterans Court were looking at this remand of character of service for the second period, they somehow implicitly denied claims for service connection for the first period of service.

[00:16:51] Speaker 01:
But as Mr. Schulman had successfully been deemed honorable for that period, those claims were not before the board at that time.

[00:16:57] Speaker 01:
Those claims were with the RO, with the VA, being processed for service connection issues.

[00:17:04] Speaker 01:
And that's what leads us, while this board remand is on appeal to the Veterans Court, the VA continues processing.

[00:17:11] Speaker 01:
Mr. Schulman, in 2022, is granted service connection with PTSD.

[00:17:15] Speaker 01:
He's denied it for other claims, and he appeals that appeal, as I understand it, is still pending before the board.

[00:17:20] Speaker 01:
If Mr. Sherman's argument is correct that somehow the Veterans Court and only the Veterans Court had jurisdiction over the service connection for the first period, then is he arguing that the VA erred when it gave him service connection for his PTSD while that appeal was still going on?

[00:17:36] Speaker 01:
I don't think that's the argument he was making.

[00:17:38] Speaker 01:
I don't think it's the argument he should make.

[00:17:40] Speaker 01:
It's against his interest.

[00:17:41] Speaker 02:
Can I just ask you, the first period is the period that he had signed up for?

[00:17:48] Speaker 02:
Yes.

[00:17:49] Speaker 02:
His enlistment.

[00:17:50] Speaker 02:
Exactly.

[00:17:51] Speaker 02:
That should have ended.

[00:17:52] Speaker 01:
That should have ended.

[00:17:53] Speaker 02:
But the army kept him in because he was in Afghanistan.

[00:17:57] Speaker 01:
That's my understanding.

[00:17:58] Speaker 02:
Was that an extension of the first or is that you're calling it a second period?

[00:18:03] Speaker 01:
That's how the VA has decided to treat it, as I understand it, to make him eligible for at least the benefits for that first period.

[00:18:11] Speaker 01:
They're treating it as a single service that ended in an honorable situation.

[00:18:16] Speaker 01:
so that if he is found, and remember, this is still an ongoing process, there has not been, because we are trying to remand this case, because we are trying to develop whether he has a defense against the absence without leave through an insanity claim because of PTSD potentially, no detonation should be made, but the VA originally said that that absence without leave was preclusive, prevented him from getting an honorable condition, therefore prevented him from getting any benefits or any VA

[00:18:46] Speaker 01:
treatment and so in order to, as I understand, the VA decided to split this and look at it to make sure that for his honorable completed contract they could provide him benefits, they could look to see if there was service connection, see if he had disability claims for that, provide him VA healthcare.

[00:19:03] Speaker 01:
at the same time the VA is now trying to develop and the instructions of the remand are clear.

[00:19:08] Speaker 01:
The VA is to try and find as much evidence as it can to assist Mr. Schulman in making his claims, to find additional medical evidence to support his claims that could help him make a claim that would lead him to getting a character of service change so that he'd be considered honorable for the second period as well.

[00:19:25] Speaker 01:
That's what we're trying to get back to in this case.

[00:19:28] Speaker 01:
The first period for character service is final, service connection to PTSD is final, service connection to everything else has been appealed and effective dates and ratings, those are all still being processed, I understand it.

[00:19:41] Speaker 01:
So that's where we sit today.

[00:19:42] Speaker 01:
In terms of this case, it is an appeal from the Veterans Court looking at a sole remand of a sole issue on the second period of service.

[00:19:53] Speaker 01:
the argument that somehow that included the character service claims or service connection claims in the first period is simply not correct.

[00:20:00] Speaker 01:
It's simply not based on the record and it is an attempt to bring these two claims together.

[00:20:06] Speaker 01:
it prevents the VA from having made the service connection decisions it made in 2022 while its appeal was still going and actually goes contrary to the arguments Mr. Shulman himself presented to the VA if the court looks to Appendix 74 whereas one of the briefs from Mr. Shulman he himself in his own footnote argues

[00:20:27] Speaker 01:
that we must address cashless service and then remand the claim for further development in terms of service connection of issues.

[00:20:35] Speaker 01:
That's his own argument up until this point.

[00:20:39] Speaker 04:
So if we found, to the contrary, that this claim for this first period of service for the underlying benefits claims was before the board, was implicitly denied, and the Veterans Court had jurisdiction and sort of reached it,

[00:20:57] Speaker 04:
because the board didn't address it.

[00:20:59] Speaker 04:
I think at most what the Veterans Court would have done was say you should have addressed this.

[00:21:04] Speaker 04:
What's the effect of that on this case?

[00:21:07] Speaker 04:
Because I sense that there's something about effective date there, but would that change the effective date in any way?

[00:21:14] Speaker 01:
I don't understand how it essentially would send the effective date.

[00:21:18] Speaker 01:
Neither the stream has reached the point where he's making arguments as to effective dates, so

[00:21:25] Speaker 01:
I think at this point that would be a premature argument in front of the board right now because of the arguing

[00:21:33] Speaker 04:
and the only that he's been denied an effective date that no one has ruled on yet so i don't know i mean you wouldn't i assume come back and said once he gets the service connection for either period of service day because uh... the board's remand decision something was fine on therefore he can't get earlier effective date i mean the effective dates up so you can so if we're back effective date

[00:21:56] Speaker 01:
Once he gets the service connection decisions if we're back here on the effect of the issue in a later appeal it'll be because the VA's made a decision the board's looked at decision and Dunsang I'm still showing disagrees with so I'll be up here talking about whether the court the veterans court correctly is

[00:22:14] Speaker 01:
made legal decisions when it looked at the board's decision.

[00:22:17] Speaker 01:
I'm just trying to figure out what the point of this is.

[00:22:20] Speaker 01:
We essentially, frankly, it's a good question.

[00:22:24] Speaker 01:
The effort that the board was making was to get, as I see it, was to get Mr. Shaw's claims back into processing, was to get him back into trying to find the information that could help him with... The board decision that's up here, that the Veterans Court power was non-final, was in his favor, right?

[00:22:40] Speaker 04:
take another look at the second period of service, where service character discharge.

[00:22:45] Speaker 01:
Exactly.

[00:22:45] Speaker 01:
And I don't think the government apports Mr. Schulman for seeking a second board opinion.

[00:22:50] Speaker 01:
Remember, there was a November board opinion.

[00:22:52] Speaker 01:
The May 2021 board opinion references that and says we're doing essentially the exact same thing again.

[00:22:58] Speaker 01:
And it was because this November letter had come out that it said your character of service is dishonorable for the entirety of your service, both periods.

[00:23:08] Speaker 01:
That added confusion to the level.

[00:23:09] Speaker 01:
The board noted this because we have multiple streams, but let's do now we can do is we've had two letters You've appealed them both to the board and we'll put them both back into the exact same position So now you are on track that you have the exact same Decision which is that you were going that to sit that letter saying that you were dishonorable that was wrong you weird you have your character service for

[00:23:35] Speaker 01:
Honorable for the first period we are trying to find information about the capitol service for the second period Let's put both of these board decisions both these remands for the same position It's that second decision that is on appeal right now the one that's saying let's go back there Again this argument about implicit denial.

[00:23:52] Speaker 01:
We just don't see it in the record We just don't see that wasn't what that was before the board that wasn't was in the letter in November That's simply what Mr. Sean sent arguments to the board in this I believe that was an attempt to bring multiple streams of

[00:24:06] Speaker 01:
bring a part of the stream that was before the RO into the board, into the Veterans Court, even though it wasn't properly before them.

[00:24:14] Speaker 00:
So then the goal behind doing that, to your best guess, would be to speed up the process?

[00:24:22] Speaker 01:
Either to speed up the process or maybe an assumption that here I'll get

[00:24:28] Speaker 01:
a ruling that I can then use because, of course, if there's a fable ruling in front of the veteran, that is then binding on the secretary, perhaps in very high showing.

[00:24:36] Speaker 01:
But at the same time, as the court can see, this has added confusion, this has added, if anything, delay to the whole situation because we're now here in 2025 discussing a board decision from 2021 that was asking to develop facts to determine his character of service, step one of the multi-step process of determining what benefits he's entitled to.

[00:24:56] Speaker 01:
we should have been in 2021, 2022, developing those facts instead.

[00:25:02] Speaker 01:
So there is a degree to which we would like this to go as quickly back to the hour as possible in the best ways for the court to affirm the veterans court finding of no jurisdiction, which would in turn send us back to the board's remand, which puts us back in front of the secretary, developing those facts, find that information, seeing if there's some way we can get Mr. Schulman an honorable casual service so we can get him benefits for that period of time.

[00:25:26] Speaker 01:
If there's no other questions.

[00:25:30] Speaker 01:
Thank you.

[00:25:30] Speaker 03:
Thank you, Your Honor.

[00:25:40] Speaker 03:
I want to start with the November 2020 letter that the Secretary brought up.

[00:25:45] Speaker 03:
It just simply does not do what they are claiming that it did.

[00:25:49] Speaker 03:
I'm reading here Appendix 100.

[00:25:51] Speaker 03:
The instant appeal rises from the challenge of a December 2019 administrative decision

[00:25:56] Speaker 03:
which determined that the veteran's initial period of service was honorable for VA purposes.

[00:26:01] Speaker 03:
Therefore, the issue has been re-characterized to reflect the favorable finding.

[00:26:06] Speaker 03:
This does not mention the later finding by the AOJ that reversed that decision, found it dishonorable, and then the rest of that decision goes on to remand the second period of service.

[00:26:17] Speaker 03:
Then in 2021, the dishonorable finding for the first period of service was appealed to the board

[00:26:26] Speaker 03:
in addition to the second period of service and that decision only addressed and only remanded that second period of service.

[00:26:33] Speaker 03:
It made no mention of the AOJ's second finding that the period was dishonorable and made no mention of anything else with respect to that first period of service.

[00:26:43] Speaker 03:
That is what this appeal is about.

[00:26:46] Speaker 03:
It's that period of service that was before the board in 2021 that it failed to address.

[00:26:52] Speaker 03:
And the reason that we're bringing this is twofold.

[00:26:54] Speaker 04:
One is- Wait, when you say which period of service failed to address the first- The first period of service, Your Honor.

[00:27:00] Speaker 04:
But they've already granted service connection based upon that first period of service.

[00:27:05] Speaker 03:
They must have determined that first period of service was honorable.

[00:27:09] Speaker 03:
They did, your honor, but again, it's from a later 2021 claim and not the 2019 or the 2017 claim.

[00:27:17] Speaker 04:
Are you foreclosed from arguing anything on an effective date for that?

[00:27:21] Speaker 03:
Yes, your honor, because this board decision finally decided either it was affirmed in silence or it was simply affirmed.

[00:27:30] Speaker 04:
If it wasn't addressed, you would argue it wasn't addressed.

[00:27:32] Speaker 04:
And so therefore it was either an error or it was pending.

[00:27:35] Speaker 03:
Well, a ruling from the court would be welcome in that regard, Your Honor.

[00:27:39] Speaker 04:
This all sounds very application of law and effect to me.

[00:27:42] Speaker 03:
The issues with the AMA, as I think this court has seen and we as practitioners have seen, is that the VA right now is making all sorts of decisions, even though there are, under 5104C, bars to concurrent administrative review of the same issue.

[00:28:01] Speaker 03:
You can see here that the VA, at least three different times,

[00:28:05] Speaker 03:
review the same exact administrative issue at the a o j and the board and we don't know whether this is a final decision or not and so we're trying to preserve yes you do the veterans courts that it wasn't the final decision and therefore didn't have jurisdiction you can hold that against the v a

[00:28:22] Speaker 04:
The board did not make a decision on the first period of service in this case.

[00:28:27] Speaker 04:
They made a decision on the second period and remanded it.

[00:28:32] Speaker 04:
That's what the Veterans Court's found.

[00:28:33] Speaker 04:
They're bound by that.

[00:28:34] Speaker 04:
They're not going to argue anything.

[00:28:35] Speaker 00:
And that's the position also being taken by the government here.

[00:28:40] Speaker 03:
Well, the ruling by the Veterans Court, Your Honor, is that these issues were never before the board.

[00:28:46] Speaker 03:
And it was not that the issues were remanded with the second period of service.

[00:28:50] Speaker 04:
if that was the case not then we wouldn't be here today more before the board at all than they're not before the board they couldn't have been implicitly denied but they were before the board your honor they were decided by the election with the veterans here in the board said and that's not what the government just said you can quote if they ever say the other thing

[00:29:10] Speaker 04:
In your proceedings, you can quote from the oral argument to the Veterans Court of the board and they agreed that those issues weren't part of that board decision that was remanded.

[00:29:19] Speaker 04:
The only thing that was remanded was the second period of service, not the first period.

[00:29:26] Speaker 04:
Are you okay if that's the case?

[00:29:28] Speaker 03:
Yes, your honor.

[00:29:29] Speaker 03:
I think that that is helpful, but again, I do think that just for precision and

[00:29:36] Speaker 03:
precision is that the issues were decided unfavorably.

[00:29:40] Speaker 03:
He appealed them to the board.

[00:29:42] Speaker 03:
The board didn't address them.

[00:29:44] Speaker 03:
If they weren't decided, but in that decision, then they're still pending before the board, and the AOJ has no business adjudicating them at all.

[00:29:52] Speaker 03:
And so again, there was a lot of confusion by the board's actions.

[00:29:57] Speaker 03:
Mr. Schulman did the best he could to respond.

[00:29:59] Speaker 03:
And so we would ask that the court find that the board did have jurisdiction, should have, and are failing to do so.

[00:30:07] Speaker 03:
Thank you, Your Honor.

[00:30:07] Speaker 04:
The case is submitted.