[00:00:00] Speaker 01:
Our next case is Leon Davis versus Secretary of Veterans Affairs, 2024-1412.

[00:00:06] Speaker 01:
Mr. Dorjkos.

[00:00:08] Speaker 01:
Thank you, Your Honor.

[00:00:12] Speaker 04:
May it please the Court?

[00:00:13] Speaker 04:
Kenny Dorjkos for Mr. Davis.

[00:00:15] Speaker 04:
On behalf of Mr. Davis, I do want to thank this Court for the opportunity to present his appeal.

[00:00:20] Speaker 04:
Resolution of the issues in this appeal are important

[00:00:23] Speaker 04:
to give claimants certainty on when to expect decisions on their claims and appeals.

[00:00:29] Speaker 04:
And claimants need clarity on the proper procedure for challenging these benefits of determinations.

[00:00:35] Speaker 01:
That sounds like you want advice from your opinion.

[00:00:41] Speaker 01:
Your counsel has already gotten his rating for frostbite.

[00:00:47] Speaker 04:
Well, Your Honor, the frostbite issue that the Secretary raised in their briefing

[00:00:54] Speaker 04:
a part of the overall appeal that was presented to the board.

[00:00:58] Speaker 04:
As we explained in our briefing, all parties agree it is undisputed that the 2020 Notice of Disagreement specifically asked the board to address SMC ratings from 2008.

[00:01:12] Speaker 04:
And if we look at the record, specifically on page 61, that... Well, it's not... We don't have jurisdiction to consider.

[00:01:22] Speaker 00:
what the notice of disagreement actually included.

[00:01:26] Speaker 00:
That's not a legal issue.

[00:01:28] Speaker 04:
It is not, Your Honor.

[00:01:29] Speaker 04:
Well, it may be a legal issue.

[00:01:31] Speaker 04:
As we explained in our briefing, Percivali last year raised the issue of whether a document being a notice of disagreement is a question of law.

[00:01:42] Speaker 04:
But here, the facts are undisputed.

[00:01:45] Speaker 04:
Page 61 of the appendix

[00:01:47] Speaker 04:
The NOD specifically asked for a determination of SNC ratings from 2008.

[00:01:53] Speaker 00:
The board decision on... But not on this particular disability, of the frostbite disability.

[00:02:00] Speaker 04:
It just generally asked, Your Honor, for SMC ratings based on the 2008 claim that all agree was before the board.

[00:02:09] Speaker 04:
Looking on page 71 of the brief, the board very explicitly articulated the issue and said that it would take jurisdiction of both the rating and effective date.

[00:02:20] Speaker 04:
Then we look at the JMR, which was the court's order where the parties agreed that the board was to address the SMC rating

[00:02:28] Speaker 04:
in conjunction with the 2008 claim, which was not the frostbite, which was the lumbar spine and other issues.

[00:02:35] Speaker 04:
And then the secretary in his own brief on page 11, that third bullet point at the top, agrees that Mr. Davis asked the board to consider SNC from 2008.

[00:02:46] Speaker 04:
For a different disability.

[00:02:51] Speaker 00:
That's really the dispute here, as something we don't have jurisdiction over.

[00:02:56] Speaker 00:
That's what the board determined.

[00:02:57] Speaker 04:
Well, the board, Your Honor, had jurisdiction of the proper rating from the 2008 claim, as well as a later claim for the frostbite.

[00:03:07] Speaker 04:
And this is the central issue in this appeal, is what is the nature of an SMC entitlement?

[00:03:13] Speaker 04:
It is found in section 1114 from subsections L, K is a different one, but K through T, which is a continuation from the scheduler ratings, the Veterans Court and the Secretary seem to read those as two different entities.

[00:03:31] Speaker 04:
whereas the statute itself treats all of them as a rating.

[00:03:35] Speaker 04:
We cited the case law with staged ratings from the Veterans Court.

[00:03:38] Speaker 04:
This court has not yet had an opportunity to address this specific issue, but they recognize that when we're looking at, when the VA is looking at a particular rating, it can and does look at the life of the claim and determine, based on very specific points in time, how severe that disability is and what rating is appropriate for it under 1114.

[00:04:02] Speaker 04:
There's no basis in law to distinguish an SMC rating from any other rating because they're all just telling the VA how much money to pay, how much compensation to give the veteran based on the severity of a service-connected disability.

[00:04:18] Speaker 04:
Um, in Grantham, which the Veterans Court relied on in large part, the issue was, uh, the ruling here in this court was that the effective date and rating are downstream to the service connection determination.

[00:04:33] Speaker 04:
That makes perfect sense because when the claim was filed has no bearing on a determination of whether a disability was, uh, results from an injury or disease from service.

[00:04:45] Speaker 04:
But once we're looking at the rating,

[00:04:47] Speaker 04:
In this case, as a perfect example, Mr. Davis waited nearly 15 years for this decision to come.

[00:04:53] Speaker 04:
It's now been well over 15 years.

[00:04:57] Speaker 04:
And the severity of his condition has fluctuated even by the board's own findings.

[00:05:02] Speaker 04:
And so from a logic standpoint and from a workability standpoint, it doesn't make any sense for the board to just make an announcement that

[00:05:11] Speaker 04:
Over the last 15 years, yes, you met the criteria for aid and attendance or some other SMC rating.

[00:05:17] Speaker 04:
But we're not going to tell you when.

[00:05:19] Speaker 04:
And now we're going to ask the AOJ to try to figure that out and then come back to us if you're not happy.

[00:05:26] Speaker 04:
And let's look at all of this time again and make the same fact findings that should that.

[00:05:31] Speaker 04:
I don't understand any of this.

[00:05:33] Speaker 02:
Why not?

[00:05:37] Speaker 02:
If the RO has made a decision that there's no entitlement to SMC, they wouldn't have gone on and said the rating would have been effective as of this date.

[00:05:48] Speaker 02:
And so if you appeal to the board the straight question of entitlement to SMC, there's no decision.

[00:05:56] Speaker 02:
There may not be anything in the record, but there's certainly no first decision by the RO on the date of entitlement.

[00:06:04] Speaker 02:
So why doesn't, when that goes up to the board, the board can say, no, RO, you've got it wrong.

[00:06:10] Speaker 02:
This veteran is entitled to SMC.

[00:06:12] Speaker 02:
They've met this determination and send it back to the RO to examine the facts in the file to show the date that entitlement rose.

[00:06:21] Speaker 04:
And they certainly, that is a method for the board to do that, your honor.

[00:06:25] Speaker 04:
But under 7104A, the board's jurisdiction extends to all questions within the rating matter.

[00:06:32] Speaker 04:
And at least two of those questions are the severity and when in time the disability was of that severity.

[00:06:39] Speaker 04:
Now, the board can remand.

[00:06:41] Speaker 02:
I have a feeling that if we go with you, we're going to cure in a different case.

[00:06:46] Speaker 02:
because you can use it to your advantage another way, that if the board did this in the first instance of that, that would violate the rule that there has to be two decisions by the agency on questions of fact, and that it should have gone back to the RO in the first instance.

[00:07:01] Speaker 04:
So that particular question, Your Honor, has already been answered by the Veterans Court and the general counsel's own opinion.

[00:07:09] Speaker 04:
And Bernard, which we cited to in our opening brief,

[00:07:12] Speaker 04:
The Veterans Court interpreted 7104A and said that the jurisdiction of the board extends to all questions in a matter.

[00:07:22] Speaker 04:
Under the General Counsel's opinion interpreting that, which the Veterans Court endorsed in Bernard, the board has jurisdiction but has to make a determination on whether they can address those questions in the first instance without prejudicing the veteran.

[00:07:39] Speaker 04:
The veteran can waive that, which Mr. Davis did here.

[00:07:41] Speaker 04:
He specifically asked for a determination from that date, from the 2008 date.

[00:07:47] Speaker 04:
But the veteran can waive that.

[00:07:49] Speaker 04:
And the board can, if it grants the full benefit, find that any error is harmless.

[00:07:55] Speaker 04:
That's consistent with Bernard.

[00:07:56] Speaker 04:
And the general counsel's- Do they have to?

[00:07:58] Speaker 04:
I'm sorry, Your Honor?

[00:07:59] Speaker 02:
Do they have to?

[00:08:00] Speaker 02:
The question is- The board looks at this record and says,

[00:08:05] Speaker 02:
Oh, you got this wrong.

[00:08:06] Speaker 02:
There's certainly enough evidence in here that at some point in time, this person was entitled to higher SMC ratings.

[00:08:15] Speaker 02:
And it's a huge, complicated cascading chain of ratings.

[00:08:19] Speaker 02:
And I understand that you're arguing for a bunch of them all the way up.

[00:08:24] Speaker 02:
And the board looks at it and says, we can't tell from this record when they became entitled to some of the earlier ones.

[00:08:32] Speaker 02:
which is what you need for the later ones.

[00:08:34] Speaker 02:
And they say, R.O., you go look at this.

[00:08:36] Speaker 02:
They can do that, right?

[00:08:37] Speaker 04:
They can, your honor.

[00:08:39] Speaker 04:
But the mechanism.

[00:08:40] Speaker 03:
Isn't that what they did here?

[00:08:41] Speaker 04:
But the mechanism for doing so is not to ignore the appeal, but to remand either under the duty to assist in order to develop evidence necessary to substantiate the claim or to give some indication to the veteran that that part of the claim, that that appeal is being adjudicated.

[00:08:59] Speaker 02:
Is your argument here that

[00:09:02] Speaker 02:
The board just says you're entitled to it, and it didn't tell the RO that it needs to figure out the effective date?

[00:09:09] Speaker 02:
The argument here, Your Honor.

[00:09:11] Speaker 02:
Because how else would the RO know that it has to determine the effective date?

[00:09:15] Speaker 02:
I assume that the board's decision somehow got transmitted to the RO because they did issue a decision on effective date.

[00:09:22] Speaker 04:
They did, Your Honor.

[00:09:23] Speaker 04:
The issue here is that the Veterans Court said the board did not have jurisdiction

[00:09:29] Speaker 04:
to consider SNC ratings back to 2008, or to in some way articulate and address the specific issue raised in the Notice of Disagreement.

[00:09:40] Speaker 04:
That's the sole issue.

[00:09:41] Speaker 04:
A lot of the other discussion we just went into about how this is done and what mechanisms are not really part of the overall picture, but the specific issue here is that the Veterans Court made a ruling on jurisdiction that the board did not have to address that.

[00:09:58] Speaker 04:
And that that's something that comes later.

[00:10:01] Speaker 02:
Wait a minute.

[00:10:01] Speaker 02:
There's two different, you just shoved two different concepts into that sentence.

[00:10:06] Speaker 02:
The board didn't have jurisdiction or the board didn't have to address it.

[00:10:10] Speaker 02:
Those are two different things.

[00:10:12] Speaker 02:
What did the Veterans Court say?

[00:10:14] Speaker 04:
The Veterans Court said.

[00:10:16] Speaker 04:
I thought the board just didn't address it.

[00:10:18] Speaker 04:
They did not draw it.

[00:10:19] Speaker 02:
And did they say they didn't have jurisdiction to address it or they didn't address it?

[00:10:23] Speaker 02:
They didn't address it, Your Honor.

[00:10:25] Speaker 02:
And on appeal, the Veterans Court said, we don't have jurisdiction because the board didn't address this.

[00:10:31] Speaker 02:
This is very, very complicated, this SFC stuff.

[00:10:37] Speaker 02:
And it's not as familiar to me as the regular service-connected benefits stuff.

[00:10:42] Speaker 02:
But it seems to me that you're probably right if you ask the board to decide this and you waive the right to two decisions on a factual issue that the board

[00:10:53] Speaker 02:
may be able to decide that if they want to, but I don't think they have to decide it.

[00:10:59] Speaker 04:
I respectfully disagree, Your Honor.

[00:11:02] Speaker 02:
Under 7104A, the board's jurisdiction is driven by- Again, you're getting jurisdiction versus whether they have to reach an issue.

[00:11:13] Speaker 02:
You're conflating them.

[00:11:14] Speaker 02:
And what I just said was, I think the board can do it, which means they have the authority to do it.

[00:11:20] Speaker 02:
But I don't see why they have to if the facts are not sufficient for them to decide the effective dates of this.

[00:11:26] Speaker 04:
They have to, Your Honor, because 7105 and 7104 tell them they have to.

[00:11:30] Speaker 04:
Congress said that when an appeal is presented, the board issues the final decision on that claim.

[00:11:37] Speaker 04:
Here, the board hasn't done that yet.

[00:11:39] Speaker 02:
The claim is on entitlement to SMC.

[00:11:42] Speaker 02:
The board says the RO got it wrong.

[00:11:45] Speaker 02:
You are entitled to SMC.

[00:11:47] Speaker 02:
But we don't know from when.

[00:11:48] Speaker 02:
So we're sending it back.

[00:11:50] Speaker 04:
But the specific issue raised to the board, and again, under 7104D1.

[00:11:55] Speaker 04:
I understand your argument.

[00:11:57] Speaker 04:
OK, Your Honor.

[00:11:59] Speaker 00:
So the Veterans Court rejected this appeal because it didn't have jurisdiction because there was no adverse decision against your client.

[00:12:09] Speaker 00:
And this is really a case about several layers of jurisdiction that come under different statutory frameworks.

[00:12:17] Speaker 00:
Our jurisdiction is even more limited.

[00:12:19] Speaker 00:
But the Veterans Court said, you weren't adversely affected, so we don't have jurisdiction.

[00:12:26] Speaker 04:
And that's where BEAM steps in, Your Honor.

[00:12:28] Speaker 00:
And we discussed it.

[00:12:30] Speaker 04:
In being, Your Honor.

[00:12:31] Speaker 00:
I know.

[00:12:34] Speaker 00:
But Bean may apply, or maybe Urban is a better discussion of that issue.

[00:12:40] Speaker 04:
So I think, and as we talked about in both of our briefs, Urban is very distinguishable because in Urban, the veteran never asked for the board to address the effective date of the rating.

[00:12:53] Speaker 04:
And there was a single rating.

[00:12:54] Speaker 04:
There was a TDIU issue that was presented.

[00:12:57] Speaker 04:
There was a single claim.

[00:12:58] Speaker 04:
Here, Mr. Davis presented several claims.

[00:13:02] Speaker 04:
that all started at different times and asked for different ratings over that period of time.

[00:13:07] Speaker 04:
Also, the JMR very explicitly ordered the board to say to address SMC ratings from 2008.

[00:13:14] Speaker 04:
Those facts were not present in urban.

[00:13:18] Speaker 04:
And I'm into my rebuttal time, so I'll reserve the rest of it unless there are any other questions.

[00:13:25] Speaker 01:
Thank you, counsel.

[00:13:28] Speaker 01:
Mr. Wisser.

[00:13:32] Speaker 03:
Morning, Your Honors.

[00:13:33] Speaker 03:
May it please the Court.

[00:13:34] Speaker 03:
Mr. Davis's claims history is admittedly complex, but the legal issue presented on this appeal is very simple.

[00:13:41] Speaker 03:
And it is simply, was the Board required to make a ruling on the effective date when it gave a new grant of special monthly compensation to Mr. Davis for other conditions than his prior grant of special monthly compensation?

[00:13:57] Speaker 03:
And I think, to Judge Hughes' point about some of the confusion around special monthly compensation, that may be driving a bit of the disagreement between the parties here.

[00:14:06] Speaker 03:
As I understand Mr. Davis's argument, he seems to be conflating special monthly compensation as a single claim.

[00:14:13] Speaker 03:
That if you obtain special monthly compensation, that should be treated legally as one claim for benefits.

[00:14:20] Speaker 03:
And so if he discusses effective date related to the PTSD issue, that inevitably contemplates all the special monthly compensation issues that might be raised.

[00:14:30] Speaker 02:
And that would normally include an effective date if it's just one rating.

[00:14:34] Speaker 02:
Right.

[00:14:35] Speaker 02:
you got service connection for a certain disability.

[00:14:39] Speaker 02:
And then, you know, that's the first thing.

[00:14:42] Speaker 02:
And then the downstream issue is the rating.

[00:14:45] Speaker 02:
In the regular context, the

[00:14:48] Speaker 02:
RO issues of rating, it would be from X date.

[00:14:52] Speaker 03:
That's right, Your Honor.

[00:14:55] Speaker 03:
So I think the distinction between the parties here that I want to draw out is that special monthly compensation is a category of benefits.

[00:15:02] Speaker 03:
It's not one single claim.

[00:15:05] Speaker 02:
It has a bunch of different ratings in it.

[00:15:08] Speaker 03:
It does.

[00:15:08] Speaker 03:
It has different levels of compensation.

[00:15:10] Speaker 03:
It has different threshold requirements.

[00:15:12] Speaker 03:
It has different factual predicates.

[00:15:14] Speaker 03:
And so the same way we would say

[00:15:17] Speaker 03:
disability compensation for a service-connected disability is not one claim.

[00:15:22] Speaker 03:
It's a category of claims.

[00:15:24] Speaker 03:
And you might be able to show service-connected disability for a whole host of bodily injuries or disabilities or conditions.

[00:15:31] Speaker 03:
In that same way, special monthly compensation is a category of benefits.

[00:15:36] Speaker 03:
The veteran can show entitlement.

[00:15:39] Speaker 02:
I guess my question is, once you show entitlement to one of these categories,

[00:15:46] Speaker 02:
Doesn't the rate, the effective date, basically come automatically with it?

[00:15:51] Speaker 02:
I mean, it seems like you would have to determine for one of these categories that they've met this condition, and you would do so based upon evidence in the record.

[00:15:59] Speaker 02:
Is the problem, I think, that it's to get all the way to the top, or at least the bottom, whichever way you're looking at it, is you have to

[00:16:13] Speaker 02:
based on earlier ones.

[00:16:14] Speaker 02:
So it's a whole cascading thing of, well, entitlement to this SMC arose on this date, but the next one didn't come until this date, which changes the calculation date for the subsequent one.

[00:16:28] Speaker 03:
That's exactly right, Your Honor.

[00:16:29] Speaker 03:
And what we have here is we have entitlement granted for PTSD beginning in 2012.

[00:16:36] Speaker 02:
So I guess my question is, though, if the board thorough

[00:16:42] Speaker 02:
denied entitlement altogether on some of them, and granted on some of them, then the board reverses and said, no, you have entitlement.

[00:16:49] Speaker 02:
Why can't it figure out when it says you have entitlement to, I'm just going to give you random examples, even if they don't apply to this specific case, SMC 1-1, and you also showed entitlement to SMC 0.

[00:17:03] Speaker 02:
I guess that's probably L1, isn't it?

[00:17:05] Speaker 02:
No, nevermind.

[00:17:07] Speaker 02:
We're not going to get into that.

[00:17:08] Speaker 02:
Why can't if they say, well, you have entitlement to these specific ones and they must know when the entitlement arose the date, why can't they just say, which then automatically gives you entitlement to our one as of this date?

[00:17:26] Speaker 03:
the board able to do that we're not saying the board is prohibited from doing that if there's a proper record and if there are actual decisions from the ro developing that record and making decisions such that it is consistent with the board's jurisdiction okay that's that's what i didn't appreciate from the briefing in this case and maybe it wasn't so apparent it seems that there's a distinction between

[00:17:49] Speaker 02:
Mr. Delhacquez is arguing the board has to do this.

[00:17:53] Speaker 02:
I think based upon a jurisdictional statute,

[00:17:57] Speaker 02:
You agree the board probably can do this without the two decisions on the factual decisions that the statute require of the veteran waves.

[00:18:06] Speaker 02:
But I think his argument is they have to do that.

[00:18:09] Speaker 02:
Why is that not correct in the government?

[00:18:11] Speaker 03:
Right.

[00:18:11] Speaker 03:
And so I think the reason he's emphasizing the sort of mandatory aspect is because of the way in which this was procedurally presented to the Veterans Court.

[00:18:19] Speaker 03:
Right.

[00:18:19] Speaker 03:
Once Mr. Davis reached the Veterans Court,

[00:18:23] Speaker 03:
he had at that time both the grant of benefits for special monthly compensation and he had the effective date decision already issued by the time he reached the Veterans Court because it only took three months for the regional office to go back on remand, issue the effective date.

[00:18:38] Speaker 03:
Now he has in a separate set of appeals challenged that and that's just right and that's on appeal.

[00:18:43] Speaker 02:
But the effective date by the 20 appealed to the RO, or to the, sorry, the Veterans Court.

[00:18:49] Speaker 02:
There's so many different agencies.

[00:18:52] Speaker 02:
What he was appealing didn't contain that effective date decision.

[00:18:56] Speaker 02:
Right.

[00:18:56] Speaker 02:
It only contained the entitlement.

[00:18:58] Speaker 03:
Right.

[00:18:58] Speaker 03:
And so, and let me lay out, because I think this is also one of the main arguments we rely on, which is we had a joint remand instruction.

[00:19:06] Speaker 03:
We had the parties stipulate to the tasks for remand.

[00:19:10] Speaker 03:
And that had two elements to it.

[00:19:12] Speaker 03:
It said, first, we have a grant for special mental compensation for PTSD-related disabilities.

[00:19:20] Speaker 03:
Mr. Davis thinks the effective date for that special monthly compensation under subsection L should be earlier.

[00:19:26] Speaker 03:
That's something we want the Board to consider on remand.

[00:19:28] Speaker 03:
Separately, Mr. Davis contends that the record contains many other bases for other forms of special monthly compensation with other factual predicates, and the Board needs to consider that issue as well.

[00:19:40] Speaker 03:
And so those were the two sets of issues that the parties agreed to.

[00:19:44] Speaker 03:
At no point did any party put in those stipulations for remand that there needs to be also an effective date evaluation for the second set of new special monthly compensation awards.

[00:19:56] Speaker 03:
Now, our point is that it's not prohibited.

[00:19:59] Speaker 02:
But there's several, aren't there?

[00:20:02] Speaker 02:
It's not just the PTSD, like the frostbite, but then there's something else, isn't there?

[00:20:11] Speaker 03:
So the frostbite yielded disabilities to both his hands and feet.

[00:20:14] Speaker 03:
And those are separate sets of special monthly compensation.

[00:20:17] Speaker 03:
There's one dealing with hands.

[00:20:18] Speaker 03:
There's one dealing with feet.

[00:20:19] Speaker 03:
There were also separate possible claims for special monthly compensation that would relate to a higher level of aid and attendance, similar to something like a nursing care situation.

[00:20:29] Speaker 03:
And then there were other situations based upon simply the combination of disabilities in various formulations.

[00:20:35] Speaker 03:
Those are all different subsections of 1114 that would entitle a veteran to disability.

[00:20:41] Speaker 02:
Where does this stand now?

[00:20:42] Speaker 02:
You said the RO issued a decision really quickly.

[00:20:45] Speaker 02:
Yes.

[00:20:46] Speaker 02:
And he's been awarded a certain rating.

[00:20:50] Speaker 03:
He obtained in the board decision on appeal here.

[00:20:56] Speaker 03:
So there was the joint remand board decision in June 2022.

[00:20:59] Speaker 03:
That decision granted him special monthly compensation at the maximum financial level possible, unless he can demonstrate the need for something like nursing care, which he hasn't attempted to, and I don't think that's in dispute.

[00:21:12] Speaker 03:
So he's obtaining the maximum level of financial benefits.

[00:21:15] Speaker 03:
The dispute then is when should those benefits have begun?

[00:21:18] Speaker 03:
I believe, if I recall correctly, that the eventual RO decision in September 2022 gave him an effective date of September 2013 for those maximum level benefits.

[00:21:29] Speaker 02:
And what does he want?

[00:21:30] Speaker 03:
I believe he's still asking for something in the 08 or 09 timeframe.

[00:21:34] Speaker 03:
I'm not as familiar with the full record there.

[00:21:36] Speaker 02:
And that's on appeal to the board right now?

[00:21:38] Speaker 03:
So he's filed a notice of disagreement

[00:21:39] Speaker 03:
That went to the board.

[00:21:41] Speaker 03:
The board issued a decision denying any earlier effective date.

[00:21:44] Speaker 02:
So it's currently receiving a maximum monthly benefit.

[00:21:47] Speaker 02:
Yes.

[00:21:47] Speaker 02:
What we're talking about now is a potential past benefit.

[00:21:51] Speaker 03:
A potential back benefit for a couple years predating 2013.

[00:21:55] Speaker 01:
And that's on appeal elsewhere.

[00:21:57] Speaker 03:
It's on appeal elsewhere.

[00:21:58] Speaker 01:
So there's no case of controversy here.

[00:22:00] Speaker 03:
There is nothing before this court on that issue, Your Honor.

[00:22:02] Speaker 03:
He got a decision in 2024 from the board on that.

[00:22:05] Speaker 03:
He filed a motion for reconsideration in 2025, and that motion for reconsideration with the board is still pending.

[00:22:12] Speaker 03:
But he is receiving the full benefits.

[00:22:13] Speaker 03:
He has his effective date.

[00:22:15] Speaker 03:
He may disagree with that effective date, but he received it fairly promptly in the scheme of things.

[00:22:20] Speaker 03:
So our fundamental point is, while the board may not have been prohibited from addressing effective date in the first instance, if the record permitted such a decision, the party stipulated to the terms of the remand.

[00:22:31] Speaker 03:
That stipulation did not include a request for effective date.

[00:22:35] Speaker 00:
Well, there is a disagreement on what it's stipulated to.

[00:22:38] Speaker 03:
There is.

[00:22:39] Speaker 03:
And I think, as Your Honor noted,

[00:22:41] Speaker 03:
To the extent there's a disagreement, that's a factual question.

[00:22:44] Speaker 03:
And the Veterans Court construed the documents and made a finding of fact that, no, it did not include an effective date request for these other special monthly compensation issues.

[00:22:53] Speaker 03:
And I think from the government's perspective, it would be a challenge in the future to agree

[00:23:00] Speaker 03:
to joint remands if, having agreed on specific terms of a remand, the claimant then comes in and argues that, no, there was actually a requirement to deal with an issue not within the terms of the stipulated remand, such that it's a defect in the board decision that grants Veterans Court jurisdiction.

[00:23:18] Speaker 03:
So with that said, we will ask that the court affirm the Veterans Court's dismissal for lack of jurisdiction.

[00:23:24] Speaker 01:
Thank you, counsel.

[00:23:25] Speaker 01:
Mr. Zouhakis has two minutes.

[00:23:34] Speaker 04:
Thank you, Your Honor.

[00:23:34] Speaker 04:
I'll start with the appendix page 95, the very bottom of that.

[00:23:40] Speaker 04:
Remand is warranted for the board to provide an adequate statement of reasons or bases as to whether entitlement to SMCL is warranted prior to 2012 based on the evidence above to include whether the appeal dates back to August 2008.

[00:23:56] Speaker 04:
There is no dispute that the agreement of the parties ordered the board to discuss

[00:24:01] Speaker 04:
whether SMC was warranted to 2008.

[00:24:04] Speaker 04:
I also just want to clarify that the term effective date is not necessarily what Mr. Davis is looking for.

[00:24:14] Speaker 04:
His appeal was brought because he asked the Veterans Court to order the board to require the board to follow the JMR and address SMC to 2008.

[00:24:28] Speaker 04:
The frostbite issue was claimed in 2013 or 2012, and the lumbar spine, there was three different disabilities, lumbar spine in 2008, PTSD in 2012, and the frostbite in 2013.

[00:24:40] Speaker 04:
1114, I just want to highlight for the court, that statute, I'll just start with the first one, 1114L, if the veteran as a result of service-connected disability has suffered some different various impairments,

[00:24:58] Speaker 04:
monthly compensation shall be, and then each of the statutes subsections follows from that.

[00:25:04] Speaker 04:
So it's the service-connected disability that is of some level of severity.

[00:25:11] Speaker 04:
misunderstands our argument to be that SMC is some category.

[00:25:17] Speaker 04:
It's not its own claim.

[00:25:19] Speaker 04:
It's simply a rating.

[00:25:20] Speaker 04:
We've said that from the very beginning, starting at the board, through the Veterans Court, and even in briefing here.

[00:25:25] Speaker 04:
SMC is a rating like any other.

[00:25:27] Speaker 00:
Well, I think all the secretaries arguing is that there can be separate SMC ratings for different disabilities.

[00:25:34] Speaker 00:
It's not a unitary rating.

[00:25:37] Speaker 00:
aggregating all of the disabilities.

[00:25:39] Speaker 04:
And that's how we understand it.

[00:25:40] Speaker 04:
And that's how we argued it here.

[00:25:42] Speaker 04:
The 2008 claim had one or more disabilities that were attached to it that could be rated up to the maximum SMC rating.

[00:25:51] Speaker 00:
I actually think this whole argument is off point on the jurisdictional issue because isn't it true that the Veterans Court determined that it lacked jurisdiction?

[00:26:01] Speaker 00:
to evaluate because there was no adverse decision.

[00:26:06] Speaker 00:
And we can't go back and reinterpret what the notice of remand said.

[00:26:11] Speaker 00:
That's a factual determination.

[00:26:13] Speaker 00:
That's what you're asking us to do, to go all the way back to the board level and determine what was included in the notice of disagreement that the board decided.

[00:26:25] Speaker 00:
How can we do that?

[00:26:26] Speaker 04:
Because it's undisputed, Your Honor, as I outlined.

[00:26:29] Speaker 00:
I guess Mr. Whistler disagrees with you.

[00:26:31] Speaker 04:
Well, I can tell you in his brief, page 11 of his brief.

[00:26:36] Speaker 02:
It's application of law of undisputed facts that we don't have jurisdiction over.

[00:26:41] Speaker 02:
It doesn't turn into a legal question solely because it's undisputed.

[00:26:45] Speaker 02:
Well, it does, Your Honor.

[00:26:45] Speaker 02:
Bean said so.

[00:26:47] Speaker 02:
That's fine.

[00:26:49] Speaker 04:
I understand, Your Honor.

[00:26:50] Speaker 04:
So I would just bring the court back to Bean.

[00:26:53] Speaker 04:
This was essentially the same ruling.

[00:26:55] Speaker 04:
The veterans court said it didn't have jurisdiction.

[00:26:57] Speaker 04:
This court said it does.

[00:26:59] Speaker 04:
As in Bean, the court had jurisdiction, and we asked the court to reverse.

[00:27:05] Speaker 01:
Thank you, counsel.

[00:27:06] Speaker 01:
The case is submitted.