[00:00:00] Speaker 01:
The first case is Thomas Snyder versus the Secretary of Veterans Affairs, 2024, 1862, Mr. Dorcas.

[00:00:12] Speaker 00:
Thank you, Your Honor.

[00:00:13] Speaker 00:
May it please the court?

[00:00:15] Speaker 00:
On behalf of Mr. Snyder, I want to thank this court for the opportunity to present his appeal.

[00:00:19] Speaker 00:
Mr. Snyder urges this court to hold, it is agency error for the board to produce a decision that lacks findings of fact and conclusions of law sufficient to allow judicial review on the record before it.

[00:00:32] Speaker 00:
Mr. Snyder is a prevailing party here because the Veterans Court remanded his claim for an earlier effective date because the board failed to fully develop the record before making a final decision.

[00:00:43] Speaker 00:
On the merits, the board found that Mr. Snyder was not entitled to an earlier effective date than October 2014 and the Veterans Court remand order directed it to address whether he was entitled to a 2012 effective date based on the same record evidence.

[00:01:00] Speaker 00:
The Veterans Court's finding found Mr. Snyder is not a prevailing party because, according to its order, it was only to address an argument not raised at the agency.

[00:01:11] Speaker 00:
But this ruling ignores binding precedent and the rest of its remand order.

[00:01:16] Speaker 02:
What is the precedent that you think that that?

[00:01:19] Speaker 00:
So the primary precedent, Your Honor, is Davis and Kelly, and of course the other Motorola and some other courses, cases.

[00:01:27] Speaker 00:
But the two cases that I think are most helpful here are Davis and Kelly.

[00:01:32] Speaker 02:
In particular, Kelly was the one where we said the Veterans Court, despite having said it wasn't finding a board error, necessarily must have done so.

[00:01:46] Speaker 02:
And that dividing line is a line that the Veterans Court recognized as an important dividing line.

[00:01:56] Speaker 02:
But it found that this case was on the other side of the line from Kelly.

[00:02:00] Speaker 02:
that it really didn't necessarily find board error.

[00:02:05] Speaker 00:
Why is that wrong as a matter of law?

[00:02:10] Speaker 00:
It's wrong, Your Honor, because if we look at the remand order in Kelly, it's remarkably similar to the remand order here.

[00:02:18] Speaker 00:
We have a record where the board was looking at an effective date.

[00:02:25] Speaker 00:
And it selected one date.

[00:02:27] Speaker 00:
There was record evidence before the board that indicated or suggested that he may be entitled to an earlier date.

[00:02:35] Speaker 00:
That evidence was not raised to the board, granted, and the court recognized that.

[00:02:41] Speaker 02:
I don't remember.

[00:02:41] Speaker 02:
And Kelly, did the veteran argue to the board for the earlier

[00:02:48] Speaker 02:
effective date.

[00:02:50] Speaker 02:
Here, the veteran did not do that.

[00:02:52] Speaker 02:
It said 2014, there was an argument, but there was no argument for a 2012 date.

[00:02:58] Speaker 02:
Do I have those dates right?

[00:02:59] Speaker 02:
That's correct, John.

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

[00:03:00] Speaker 02:
And so the Veterans Court said, now you're arguing it.

[00:03:02] Speaker 02:
You have a new argument.

[00:03:04] Speaker 02:
We could say there's an issue exhaustion problem, and just say affirm.

[00:03:09] Speaker 02:
But we're going to give you the benefit of a remand and direct the board to consider it.

[00:03:15] Speaker 02:
Why is that?

[00:03:17] Speaker 02:
implicitly a finding of administrative error.

[00:03:20] Speaker 00:
So when we look at what happened in Kelly, Your Honor, in Kelly it wasn't an effective date, it was a service connection claim, but there were two separate diagnosis in the medical records.

[00:03:30] Speaker 00:
The board addressed one and ignored the other and the Veterans Court remanded to address that second diagnosis.

[00:03:37] Speaker 00:
And this court

[00:03:38] Speaker 00:
found that because it was already of record and the board was already looking at the service connection, that the veteran was a prevailing party.

[00:03:50] Speaker 00:
And it really focused on the fact that they were looking at that specific question of entitlement to benefits based on a diagnosed disability.

[00:03:59] Speaker 00:
and that it was already of record.

[00:04:02] Speaker 00:
Here, the board was looking specifically at the effective date and the- Specifically, 2014 requested effective date, right?

[00:04:11] Speaker 03:
That is specifically what you requested.

[00:04:14] Speaker 03:
And so when you ask for a 2014 date, I'm not sure why it was incumbent on the board to wonder if there were any other possible earlier dates than 2014 beyond your specifically requested 2014 date.

[00:04:29] Speaker 00:
The law requires, Your Honor, and Roberson in particular, this court held, that the board must fully develop the claim before it issues a final decision.

[00:04:39] Speaker 00:
The remand order here is specifically cited to Roberson.

[00:04:42] Speaker 00:
And I recognize that the court, in its Egypt decision, didn't agree with us in how Roberson applies.

[00:04:52] Speaker 00:
But the board does have an obligation to fully develop the record.

[00:04:56] Speaker 03:
Robinson not really the right case to be thinking about.

[00:05:00] Speaker 03:
I mean, your arguments would seem to apply to the case of Robinson where, in your view, the board would have needed to have developed

[00:05:12] Speaker 03:
the record adequately in order to consider any and every possible advantage Mr. Robinson could have gained in terms of benefits.

[00:05:23] Speaker 03:
But there we concluded, as the Veterans Court concluded, that there was a brand new issue that was raised for the first time before the Veterans Court.

[00:05:33] Speaker 03:
And rather than applying the issue of exhaustion, which the Veterans Court could have easily and clearly done, it elected to remand that newly raised issue back to the board.

[00:05:45] Speaker 03:
And we said that showed that there was no evidence of any administrative error.

[00:05:51] Speaker 03:
If anything, that was...

[00:05:53] Speaker 03:
grace that was given to Mr. Robinson, just as it appears to me that grace was given here to Mr. Snyder to permit a brand new issue that had never been raised before to be considered in the first instance, but not by the Veterans Court, by the board.

[00:06:08] Speaker 03:
So why isn't Robinson really the right model of how to think about your case?

[00:06:16] Speaker 00:
Two points on that, Your Honor.

[00:06:18] Speaker 00:
On page 986 of the Robinson, the court says it does not suggest that a remand predicated on exercise of discretion can never confer prevailing party, which is what we have here.

[00:06:32] Speaker 00:
The second point is in Robinson, the issue presented to the board was the rating assigned for the disability.

[00:06:42] Speaker 00:
When the veteran got to the veteran's court, the attorney raised an effective date argument, and the court remanded only the effective date.

[00:06:51] Speaker 00:
And this court specifically pointed that out, distinguished it from Kelly in saying, you know, in Kelly, we had the record presenting two alternatives to the claim that the board was actually looking at.

[00:07:02] Speaker 00:
In Robinson, on the other hand, the veteran only presented the rating issue to the board.

[00:07:08] Speaker 00:
The board ruled on it.

[00:07:10] Speaker 00:
They didn't challenge the rating issue.

[00:07:12] Speaker 00:
but instead raised a challenge on the effective date.

[00:07:14] Speaker 00:
And the court, giving grace, as you indicated, said, we're going to send it back and let you look at the or argue the effective date matter.

[00:07:22] Speaker 00:
So the distinguishing characteristics between Robinson and Kelly is that in Kelly, the record contains.

[00:07:31] Speaker 03:
Are you ultimately disputing the Veterans Court view that your request for a 2012 effective date

[00:07:41] Speaker 03:
to the Veterans Court was a newly raised issue?

[00:07:47] Speaker 03:
Because that's what they said.

[00:07:49] Speaker 03:
So I don't recall your briefing disputing that.

[00:07:58] Speaker 00:
I want to be careful here, Your Honor, because I think that there's some confusion in the case law, both at this court and the Veterans Court.

[00:08:05] Speaker 00:
It's not confusing.

[00:08:06] Speaker 03:
Nobody ever said anything about a 2012 effective date request.

[00:08:10] Speaker 03:
Until your appeal to the Veterans Court.

[00:08:14] Speaker 00:
Right, Your Honor.

[00:08:14] Speaker 00:
But there's a difference between issues and arguments.

[00:08:18] Speaker 00:
And so when you say they newly raised issue, the issue before the board and the Veterans Court remained the same, the effective date for the entitlement to his claim.

[00:08:27] Speaker 00:
The arguments, on the other hand, were newly raised to the Veterans Court.

[00:08:31] Speaker 00:
We completely agree with that.

[00:08:34] Speaker 00:
But it was based upon evidence that was already of record.

[00:08:39] Speaker 00:
just like in Kelly.

[00:08:40] Speaker 00:
And so there were two alternatives there that the record disclosed that the veteran represented by a non-attorney at the board didn't see.

[00:08:50] Speaker 03:
But when he went- I guess the bottom line is, what is the suggestion of administrative error that occurred here where there was no suggestion of any administrative error in Robinson?

[00:09:01] Speaker 00:
Again, Your Honor, in Robinson, the issue presented to the board was the rating, and the issue remanded by the court was effective date.

[00:09:10] Speaker 00:
And those two are different enough that it was not necessarily error in that case for the board not to have considered or addressed that.

[00:09:20] Speaker 00:
And the court simply gave grace and said, we're going to allow you to argue that and potentially obtain an earlier effective date.

[00:09:28] Speaker 00:
Here, as in Kelly, the issue

[00:09:31] Speaker 00:
before the board was the effective date.

[00:09:33] Speaker 03:
And the record at that time... When you asked at the board for a 2014 date, it was administrative error for the board to not look past 2014 for some possible potential earlier date that wasn't specifically requested to the board.

[00:09:50] Speaker 03:
Is that your argument?

[00:09:51] Speaker 00:
It is, Your Honor.

[00:09:52] Speaker 00:
Yes, Your Honor.

[00:09:52] Speaker 00:
And that's what Roberson teaches in when you're presented a claim.

[00:09:56] Speaker 00:
In Roberson, the veteran asked for a higher rating

[00:09:59] Speaker 00:
And this court said when there's evidence in the record that suggests a TDIU rating, which is a rating, it's the same issue.

[00:10:08] Speaker 03:
A board appeal case where it was a request for review of a rating decision and then.

[00:10:18] Speaker 03:
They made an argument to the board, and then our court said in Roberson, oh, well, the board needs to actually do much more than just actually look at the arguments specifically raised.

[00:10:32] Speaker 03:
The board needs to think much deeper than that.

[00:10:35] Speaker 00:
It is, Your Honor, and that's exactly what Roberson held in that under its statutory jurisdiction, 7104A, the board is required to review the entire record of proceedings before it, all evidence lay in medical

[00:10:51] Speaker 00:
apply each and every applicable or potentially applicable law, Thomas V. McDonough more recently recognized the potentially applicable regulations, and maximize or fully develop the claim before issuing a final decision.

[00:11:07] Speaker 00:
And that's where the board erred here in that it did not fully develop the claim because it overlooked this potential 2012 effective date.

[00:11:19] Speaker 00:
If there are no other questions, I will reserve the remainder of my time for rebuttal.

[00:11:24] Speaker 01:
We will save it for you.

[00:11:28] Speaker 01:
Mr. Kwon.

[00:11:34] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:11:36] Speaker 04:
Nelson Kwon from the Department of Justice, representing the Secretary of Veterans Affairs.

[00:11:44] Speaker 04:
Mr. Snyder's argument, we first point out that the Veterans Court did not remand to the board necessarily to consider an earlier effective date.

[00:11:55] Speaker 04:
The Veterans Court remanded to the board to address whether Mr. Snyder reasonably raised his argument before the board.

[00:12:04] Speaker 04:
So there's some difference in those two because

[00:12:10] Speaker 04:
the Veterans Court explicitly found that this was a new argument raised on appeal.

[00:12:17] Speaker 04:
And if it was not reasonably raised before the board, then there was no reason to continue.

[00:12:24] Speaker 04:
And on the merits, nothing changed.

[00:12:28] Speaker 04:
Clearly, Mr. Snyder was not a prevailing party.

[00:12:30] Speaker 02:
So help me understand how what you're saying now fits with the argument that we just heard, which is that there is a

[00:12:39] Speaker 02:
clear, I'm going to state it my way and I may get this wrong, but there was a clear legal duty on the part of the board to examine the record for this particular injury to identify the right effective date.

[00:12:59] Speaker 02:
The board didn't do that and the remand here necessarily,

[00:13:09] Speaker 02:
had to rest on that finding of administrative error.

[00:13:14] Speaker 02:
What part of that is wrong?

[00:13:17] Speaker 04:
of the entire part of it as well, candidly.

[00:13:22] Speaker 04:
But the biggest part to start with is in the board.

[00:13:25] Speaker 04:
The board actually granted Mr. Snyder the relief he requested.

[00:13:31] Speaker 04:
And unfortunately, it's not in the joint appendix.

[00:13:34] Speaker 04:
But the board's decision is available on Westlaw.

[00:13:39] Speaker 04:
The Westlaw Citation is 2021.

[00:13:42] Speaker 04:
WL472-4608.

[00:13:45] Speaker 04:
So that is a huge distinction to other cases that Mr. Steiner cites, too.

[00:13:50] Speaker 02:
So did what you just say imply that the board does not have a legal duty to

[00:14:04] Speaker 02:
look at the record to see if something more favorable than the veteran requests is something the veteran is actually entitled to?

[00:14:13] Speaker 04:
In this case, because in the board's decision, the board addressed Mr. Schneider's argument asking for a 2014 effective date.

[00:14:25] Speaker 04:
And the dispute back then was whether Mr. Snyder was entitled to a 2015, a later effective date.

[00:14:35] Speaker 04:
And the board granted Mr. Snyder's request for a 2014 effective date.

[00:14:40] Speaker 04:
And now on appeal, or later on appeal, Mr. Snyder said, well,

[00:14:44] Speaker 04:
We should go to 2012.

[00:14:46] Speaker 04:
And so that is not a duty that the board had.

[00:14:51] Speaker 04:
The board was focused on the arguments presented by the party, and those were the record.

[00:14:56] Speaker 04:
And the board granted Mr. Snyder's request at that time.

[00:15:00] Speaker 02:
So in the second round before the Veterans Court, the IJA round, what did you, if anything, say to the Veterans Court to indicate that there was actually a reasonable dispute about whether the board, not that there was back in front of the board, but that there was a reasonable dispute

[00:15:29] Speaker 02:
in the 2023 board, the May 2023 board veterans court decision about whether the board had violated a duty or not.

[00:15:42] Speaker 02:
Not that that violation of duty was argued to the board.

[00:15:47] Speaker 02:
It was not argued to the board.

[00:15:49] Speaker 02:
But it's argued to the veterans court.

[00:15:51] Speaker 02:
Did you say, well, he says there's this duty.

[00:15:54] Speaker 02:
he's saying to the Veterans Court, but there really isn't.

[00:15:57] Speaker 02:
Let me tell you why there really wasn't this duty.

[00:16:01] Speaker 04:
I believe there was.

[00:16:02] Speaker 04:
I don't have the brief passage in front of me.

[00:16:06] Speaker 04:
But I recall the argument first was that there was no error.

[00:16:15] Speaker 04:
And so

[00:16:17] Speaker 04:
So this, again, as we discussed, this remand was purely to address legal arguments that Mr. Snyder raised for the first time on appeal.

[00:16:26] Speaker 04:
So there was no argument, but at the most, the court may grant, the Veterans Court may grant a remand to the board to decide whether, to determine whether Mr. Snyder reasonably raised his argument.

[00:16:41] Speaker 04:
before the board.

[00:16:42] Speaker 04:
And that was it.

[00:16:43] Speaker 04:
And so again, those are purely factual determinations made by the Veterans Court.

[00:16:49] Speaker 04:
So the fact that Mr. Snyder is now arguing there was some kind of legal rule that was extrapolated from the Veterans Court, that is not an accurate reflection of the Veterans Court's decision.

[00:17:07] Speaker 03:
Are you familiar with the Roberson opinion?

[00:17:09] Speaker 03:
Yes, Your Honor.

[00:17:10] Speaker 03:
And how it may or may not apply to the circumstances of this case.

[00:17:15] Speaker 03:
I heard Mr. DeHawkes say that Roberson tells us that sometimes when a claimant seeks a higher rating or a earlier effective date, it's incumbent upon the board not only to address that specific argument,

[00:17:35] Speaker 03:
but also has a duty to look and see if the record supports an even earlier than requested effective date, or an even higher than requested rating.

[00:17:47] Speaker 03:
And when that does not happen, then there is some kind of administrative error.

[00:17:54] Speaker 03:
And so therefore, there is always, in that sense, an implicit claim.

[00:18:00] Speaker 03:
for a higher rating or an even higher or even better earlier effective date.

[00:18:06] Speaker 03:
And so if that's always in front of the board, then you can't really think of that as being a waived issue if the veteran raises that request for an even earlier effective date for the first time expressly in front of the Veterans Court.

[00:18:28] Speaker 03:
Can you address that?

[00:18:30] Speaker 04:
Yes, Your Honor.

[00:18:30] Speaker 04:
So again, in Roberson, there was a request for an earlier effective date or a request that was made before the board.

[00:18:41] Speaker 04:
And the issue was whether

[00:18:45] Speaker 04:
whether the board sympathetically reviewed the record to develop the claim.

[00:18:49] Speaker 04:
Here, that's not the case.

[00:18:52] Speaker 04:
Because again, in front of the board, Mr. Snyder, he asked for 2014, effective date.

[00:19:00] Speaker 04:
And again, the board granted.

[00:19:02] Speaker 04:
Mr. Snyder's request.

[00:19:04] Speaker 04:
And this is why the Veterans Corps remanded to the board to decide whether it was reasonably raised.

[00:19:14] Speaker 02:
What is a case in which we have held that the board does not have a duty to look at the record to determine the earliest proper effective date, even if

[00:19:30] Speaker 02:
that date might be earlier than anything the Veterans Court requests.

[00:19:36] Speaker 04:
We don't have that citation, Your Honor, and possibly because that is an intensively factual determination.

[00:19:43] Speaker 04:
And this is why the Veterans Court remanded to the board to see whether it was reasonably raised in the first place.

[00:19:49] Speaker 02:
Reasonably raised by the record means one thing, reasonably raised by the veteran means a different thing.

[00:19:54] Speaker 02:
Which?

[00:19:55] Speaker 04:
And here, I believe the Veterans Court meant reasonably raised by the record.

[00:20:03] Speaker 04:
And because the Veterans Court did not have the full record in front of the Veterans Court.

[00:20:10] Speaker 04:
And so whether the record in front of the board allowed the board to make such a determination, that is a factual determination.

[00:20:20] Speaker 04:
And the Veterans Court did not make any legal determination on that issue.

[00:20:27] Speaker 03:
Do we know the outcome of the remand?

[00:20:30] Speaker 03:
We do not, Your Honor.

[00:20:32] Speaker 03:
We don't even know if there was a decision by the board on remand?

[00:20:36] Speaker 04:
We do not, Your Honor.

[00:20:43] Speaker 04:
And if there are no further questions from the court?

[00:20:47] Speaker 01:
Thank you, Mr. Kwan.

[00:20:49] Speaker 01:
Mr. Dorcas has some rebuttal time.

[00:20:58] Speaker 03:
Do we know the outcome of the remand?

[00:21:00] Speaker 00:
I do not, Your Honor.

[00:21:01] Speaker 00:
Again, we're not the agents, the representative at the agency.

[00:21:06] Speaker 00:
And I apologize for not having that information ahead of time.

[00:21:10] Speaker 03:
I didn't see your blue brief site, Roberson.

[00:21:14] Speaker 00:
The blue brief.

[00:21:15] Speaker 00:
Are we talking about Robinson?

[00:21:18] Speaker 00:
Roberson, Your Honor.

[00:21:19] Speaker 00:
Roberson v. Principi.

[00:21:21] Speaker 01:
Actually, not Robinson.

[00:21:22] Speaker 00:
Not Robinson, the IJA case, but Roberson,

[00:21:27] Speaker 00:
case from about 20 years ago.

[00:21:30] Speaker 00:
Roberson was cited by the Veterans Court.

[00:21:33] Speaker 00:
It was cited in our EJA application as well as our merits at the Veterans Court.

[00:21:39] Speaker 00:
But the legal principle is contained in Roberson where the board must fully develop the record before issuing a final decision.

[00:21:49] Speaker 00:
I would just like to clarify that

[00:21:51] Speaker 03:
That sets us a little bit of a different argument than the argument I heard you say today, which is that embedded in any kind of request for an earlier rating is a duty on the board to look for

[00:22:09] Speaker 03:
even possibly earlier effective dates supported in the record.

[00:22:15] Speaker 03:
That question seems to be a different question than whether the record was fully developed enough.

[00:22:23] Speaker 00:
Well, I think it's the same thing, Your Honor.

[00:22:26] Speaker 00:
By fully developing the record, the board will discover, if reasonably raised, in the record.

[00:22:32] Speaker 00:
And again, the veteran cannot reason.

[00:22:34] Speaker 03:
It sounds like you're asking

[00:22:36] Speaker 03:
for your arguments in your blue brief to be interpreted as having embedded implicitly within it this other argument.

[00:22:44] Speaker 00:
Not at all, Your Honor.

[00:22:45] Speaker 03:
It's very much what you're asking the board to do.

[00:22:48] Speaker 00:
Not at all, Your Honor.

[00:22:49] Speaker 00:
What we argued in our brief is that the Veterans Court remanded the appeal because the board did not consider the evidence of the earlier 2012 claim, just like in Kelly, where they did not consider the evidence of the other diagnosis.

[00:23:04] Speaker 00:
In doing the reason that the board is required to do that is because under 7104a and this court's ruling in Roberson in particular the board must fully develop the record before deciding I'm sorry fully develop the claim before deciding it in a final decision And it's the record that reasonably raises issues not the veteran the veteran would just raise them The secretary

[00:23:33] Speaker 00:
raised a new argument here that we did not see in his brief in that when the veteran asked for a specific relief, the board has no legal obligation to look for more.

[00:23:45] Speaker 00:
So one, we would ask that this court find that he waived this argument.

[00:23:49] Speaker 00:
And two, it's not right.

[00:23:51] Speaker 00:
As I just described, 7104A, 3.103A, sympathetically developing, maximizing benefits, fully developing the record,

[00:23:59] Speaker 00:
The board is required to do this whether the veteran asked for it or not.

[00:24:08] Speaker 00:
And if that rule were in place, then a veteran who said nothing would be in a better position than one who guessed wrong because of his or her lack of understanding of this very complicated legal structure.

[00:24:23] Speaker 02:
If that proposition were as broad as I think I heard you say it, would there be any room left for issue exhaustion?

[00:24:32] Speaker 00:
There would not be, Your Honor.

[00:24:33] Speaker 00:
I mean, then it would just be what you asked for.

[00:24:36] Speaker 00:
And Magit specifically was saying that the court has jurisdiction, although discretion, to consider issues that weren't raised by the veteran, even when they asked for something very specific.

[00:24:48] Speaker 00:
And all cases following that have recognized that rule.

[00:24:53] Speaker 00:
And then I am out of time.

[00:24:55] Speaker 00:
So we would ask that this court reverse the Veterans Court decision, find that Mr. Snyder is a prevailing party.

[00:25:02] Speaker 01:
Thank you, counsel.

[00:25:03] Speaker 01:
We have your argument and the case is submitted.