[00:00:00] Speaker 01:
Our first case for argument is 24-2141, James v. Collins.

[00:00:03] Speaker 01:
Mr. Thomas, please proceed.

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

[00:00:07] Speaker 00:
May it please the Court?

[00:00:08] Speaker 00:
On behalf of Mr. James, I want to thank this Court for the opportunity to present his appeal.

[00:00:13] Speaker 00:
Mr. James challenges the Veterans Court's decision insofar as it dismissed entitlement to any non-diagnostic code 8100 compensation after 2018.

[00:00:24] Speaker 00:
The Veterans Court found that the board misapplied the law in how it rated his headache disorder under the analogous diagnostic code 8100.

[00:00:33] Speaker 01:
Counsel, what is the specific adverse legal ruling that you contend this court has jurisdiction to review?

[00:00:39] Speaker 00:
So the issue that we've asked this court to look at, Your Honor, is the dismissal order insofar as it precludes entitlement to all compensation authorized under 1131.

[00:00:54] Speaker 00:
So Mr. James, as we acknowledged in our reply brief more directly, did not challenge the 50% rating that was assigned under that diagnostic code.

[00:01:06] Speaker 00:
But his briefing to the court raised the general error that when it rated his headache condition, it misapplied 54.20 and this court's decision in Webb, and then also generally in failing to compensate him for

[00:01:21] Speaker 00:
excuse me, all of the resulting disabilities that came out of his headache disorder.

[00:01:27] Speaker 00:
And so when the Veterans Court was looking at the briefing, it issued an overly broad dismissal that cut off entitlement to any additional compensation other than what's allowed under the analogous diagnostic code 8100.

[00:01:40] Speaker 00:
And that violates the statutory mandate under 1131 to ensure that he's compensated for all of the resulting disabilities, not just the ones that the board analogized to the 8100 diagnostic code.

[00:01:58] Speaker 02:
Is the concern limited to headaches as opposed to the 8100 migraine headache analogy?

[00:02:06] Speaker 02:
Or are you concerned that the Veterans Court has cut off

[00:02:09] Speaker 02:
everything like even the secondary conditions like memory loss.

[00:02:13] Speaker 00:
Exactly, Your Honor.

[00:02:14] Speaker 00:
The latter.

[00:02:15] Speaker 00:
The order cuts off anything that's not covered under the 50% rating under the analogous 8100 diagnostic code.

[00:02:24] Speaker 00:
So if, for instance, the memory issues were found on remand to be compensable,

[00:02:31] Speaker 00:
then we fear that this dismissal order and looking at the way that it's worded will not allow the VA to compensate him after 2018 because of the way that the dismissal order is written.

[00:02:44] Speaker 00:
Likewise, if the VA found that he was entitled to something more than 50% under another analogous code or a TDIU or an extra scheduler rating, this dismissal order cuts off the... Can you point us to the specific language in the order that you're concerned about?

[00:03:01] Speaker 00:
So right on page two of the appendix, Your Honor, the appellant does not challenge the board's determination that he is not entitled to disability rating for headaches in excess of 50% for the period beginning September 2018, and the court will therefore dismiss the appeal as to that matter.

[00:03:21] Speaker 00:
And so part of the problem is there's not much to this order.

[00:03:26] Speaker 00:
But reading it as it's written, it essentially cuts off the appeal period to only look at the time period before September 2018.

[00:03:37] Speaker 02:
Haven't we been very clear, however, that we don't have jurisdiction to review what we've construed as an application of law to fact?

[00:03:51] Speaker 02:
namely what issues were presented to the veterans court isn't that all this you're asking us to review the finding that i don't think we have jurisdiction over uh... no your honor uh... we are not challenging

[00:04:05] Speaker 00:
the Veterans Court determination that Mr. James did not challenge the rating assigned under Diagnostic Code 8100.

[00:04:15] Speaker 00:
And I do recognize it's a very narrow distinction, but what we do challenge is that this dismissal order

[00:04:25] Speaker 00:
precludes any additional compensation which is required under 1131.

[00:04:29] Speaker 00:
And not only what the board granted the 50% rating under the analogous diagnostic code, but any other compensation.

[00:04:39] Speaker 02:
But if the Veterans Court found, in looking at your appeal, this appeal is only about 2014 to 2018, and it's not at all about post September 2018, if that's what the Veterans Court found, do we have any jurisdiction to review that?

[00:04:56] Speaker 00:
Again, I think you do, Your Honor.

[00:04:58] Speaker 00:
I think that if this court looks at the mandate under 1131 to compensate and marries it up with the rest of the decision, which told the VA to go back and correctly apply the law, determine what disability is from the headaches, what disability is compensable, that

[00:05:19] Speaker 00:
There's essentially, the law cannot allow, at least under this kind of a rule, I'm sorry, this kind of an order to cut off entitlement at a specific time when there's a potential for additional ratings and additional compensation based on the other part of the remand order.

[00:05:41] Speaker 00:
And certainly prior to 2018, Mr. James did not, and the court did not find that he limited his appeal only to a 50% rating under Diagnostic Code 8100.

[00:05:52] Speaker 00:
And the Veterans Court did not find that he was limiting his argument to only receiving compensation under that.

[00:05:59] Speaker 00:
In fact, it specifically addressed the memory issue that you referenced, Your Honor, and just generally correctly rating his disability.

[00:06:08] Speaker 01:
So if we don't read the dismissal order as broadly as you do, do you agree that the appropriate thing for us to do here is dismiss for lack of jurisdiction?

[00:06:20] Speaker 00:
Yes, Your Honor, I do.

[00:06:21] Speaker 00:
Because I think the case law is clear that we cannot challenge the Veterans Court's finding that a certain issue is dismissed.

[00:06:29] Speaker 00:
But I think this case raises a very unique situation where

[00:06:37] Speaker 00:
It's overly broad, and it violates, again, 1131's mandate to pay him for all of his resulting disabilities.

[00:06:47] Speaker 01:
And I also assume that the only part that you were pointing us to that you thought was the over-breath part was appendix page two.

[00:06:53] Speaker 01:
So if we read the rest of it in context and disagree that it's over-broad, it sounds like you are in agreement with me that we should dismiss.

[00:07:01] Speaker 00:
Under binding case law, yes, Your Honor.

[00:07:03] Speaker 01:
OK.

[00:07:04] Speaker 01:
Anything further?

[00:07:05] Speaker 00:
I will reserve the rest of my time for rebuttal.

[00:07:09] Speaker 02:
Thank you, Your Honor.

[00:07:20] Speaker 00:
May it please the Court.

[00:07:21] Speaker 00:
Mr. James challenges the Veterans Court's remand order that dismissed his appeal as to the period following September 7th 2018 for which he already has the maximum rating allowed under Diagnostic Code 8100.

[00:07:33] Speaker 00:
The court should dismiss this appeal or alternatively affirm the Veterans Court's ruling.

[00:07:37] Speaker 00:
So I'll start with... I'll make two points.

[00:07:41] Speaker 00:
First, this is a straightforward application of law to fact under this court's precedent.

[00:07:46] Speaker 00:
And to some extent, Mr. DeHocquez agrees with that, depending on how the Veterans Court's order is read.

[00:07:53] Speaker 00:
As to how the Veterans Court's order should be read, we disagree with the breadth of Mr. DeHawquist's reading.

[00:08:03] Speaker 00:
In particular, on the memory loss point, the Veterans Court's remand is not time limited.

[00:08:10] Speaker 00:
So that's Appendix 12.

[00:08:12] Speaker 00:
As to the time period of the rating that Mr. James can get with respect to the memory loss issue,

[00:08:23] Speaker 00:
So that issue is explicitly remanded without any time limitation.

[00:08:29] Speaker 00:
And we do not see any basis in the Veterans Court's ruling to say that he's barred from seeking compensation for the post-2018 period for that memory loss rating.

[00:08:39] Speaker 00:
More generally, the Veterans Court's dismissal must be read in the context of the board's order.

[00:08:46] Speaker 00:
And what the board was saying was that Mr. James has the maximum rating under DC 8100 for the September 8, 2018 and following period.

[00:09:01] Speaker 00:
And he's not entitled to anything more than that.

[00:09:03] Speaker 00:
And all the Veterans Court is saying is Mr. James hasn't challenged that aspect of the board's order, so we're dismissing that part of the appeal.

[00:09:12] Speaker 02:
Has it ever been in dispute in this case whether 8100 and its 50% disability limit is the full extent that one can get for headaches?

[00:09:24] Speaker 02:
That is, 8100 is just an analogy for headaches, as I understand it.

[00:09:30] Speaker 02:
accepted or possibly disputed that fifty percent would still be a limit.

[00:09:34] Speaker 00:
So Mr. James has pushed back, I would say, on the board's findings about 8100 being analogous or being the analogous rating code.

[00:09:46] Speaker 00:
On the other hand, I haven't seen anything in the record suggesting what an alternative diagnostic code might be.

[00:09:52] Speaker 00:
So I'm not aware of any other diagnostic code that's been suggested as a better

[00:09:56] Speaker 00:
Analogy and I would note that mr.. James does have migraine headaches among other aspects of his headache symptoms So the board did in our view reasonably explain why DC 8100 is the most analogous code There's nothing further we asked the court dismiss or alternatively affirm.

[00:10:17] Speaker 01:
Thank you mr.. Carhartt

[00:10:25] Speaker 00:
So I want to emphasize to the court that Mr. James brought this appeal in order to clarify his rights on remand and whether dismissal allows him to obtain additional benefits.

[00:10:36] Speaker 00:
It was never his intention to cut off, to only ask for a 50% rating.

[00:10:42] Speaker 00:
And so I think this is shown in the Veterans Court's order again that directs the board on remand to look anew at all of his ratings and ensure that it is properly and accurately implementing 4.20, this court's decision in Webb, and generally the statutory mandate under 1131.

[00:11:08] Speaker 00:
Mr. James is not in receipt of the maximum available ratings.

[00:11:13] Speaker 00:
He may be under Diagnostic Code 8100, but there are other statutory and regulatory provisions that allow him to obtain an even higher rating not only under

[00:11:26] Speaker 00:
outside of the diagnostic code that the board may have selected.

[00:11:30] Speaker 00:
And so in the last point that the government brought up with him having a migraine condition as part of his disability picture, the board's findings are binding on the parties and the board found that he did not have the migraine condition.

[00:11:46] Speaker 00:
That's why it was rated by analogy.

[00:11:50] Speaker 00:
So if there are no other questions, then we would ask that the court set aside the Veterans Court's dismissal with respect to any non-diagnostic code 8100 disability compensation.

[00:12:04] Speaker 01:
Thank you, counsel.

[00:12:05] Speaker 01:
The case is taken under submission.