CCK Delivers Oral Argument at CAVC Regarding Jurisdiction Over Veteran’s TDIU Claim
On April 30, 2019, CCK delivered an oral argument at the Court of Appeals for Veterans Claims (CAVC) in Washington, D.C. To watch a video recording of the argument that took place, click here.
Bailiff: All rise. Oyez, oyez, oyez! The United States Court of Appeals for Veterans Claims is now in session. The Honorable Robert N. Davis presiding. All who have business before this Court draw near and you shall be heard. God bless the United States and this honorable Court.
Judge Davis: Good morning. I’m Chief Judge Davis. To my right is a Judge Bartley, to my left to Judge Falvey. We are here today in the matter of Adams against Wilkie, docket number 18-2049, to consider whether the Court has jurisdiction over the Board referral of a TDIU issue. Would both counsels for the parties please note your appearance for the record?
Amy Odom: Amy Odom, with the law firm of Chisholm Chisholm & Kilpatrick for Mr. Adams, and with me at counsel table is Alyse Galoski and Bradley Hennings, also representing Mr. Adams.
Judge Davis: Thank you, Ms. Odom.
Fred Balker: Fred Balker and Kenneth Walsh for the Secretary of Veterans Affairs, Your Honor, from the Office of General Counsel
Judge Davis: Thank you, Mr. Balker, Mr. Walsh. Are both parties ready to proceed?
Amy Odom: Yes, Your Honor.
Judge Davis: Each party will have 30 minutes to present your respective arguments. Counsel for the appellant, do you wish to reserve a portion of your time for rebuttal?
Amy Odom: Yes, Your Honor, we would like to reserve 10 minutes.
Judge Davis: Okay. Counsel for the appellant you may proceed.
Amy Odom: Thank you, Chief Judge Davis and may it please the Court. The Board erred in this case when it found that it did not have jurisdiction over the matter of entitlement to TDIU. This Court has jurisdiction to review the Board’s determinations as to its own jurisdiction. And the Court can and should correct the Board’s error in this case because not doing so would result in undue delay in the resolution, Mr. Adams’ entitlement to TDIU, and it would permit the Board to insulate its conclusion from review by this Court
Judge Davis: Ms. Odom, is there a law or statute or a case that gives the Court jurisdiction here?
Amy Odom: Well, you can get the jurisdiction, this Court can get the jurisdiction by two ways.
First, through 7252, which gives this Court jurisdiction to review decisions of the Board. And then if the Court were to disagree that the Court has jurisdiction under 7252, the Court could always find jurisdiction in the All Writs Act, which provides this Court with jurisdiction to preserve its own jurisdiction over its future jurisdiction. But we think that it’s really 7252, which provides this Court with jurisdiction to review the Board’s decisions. And this is a decision because it is an order granting appropriate relief or denying relief. Relief, in this case, isn’t the award or denial of benefits, it’s the acceptance or rejection of jurisdiction.
We know that the Court has jurisdiction to review that and that is considered a decision under the statute because the Court has done it many times. The Court did it in Kirkpatrick where the Court reviewed the Boards finding that it didn’t– I’m sorry, not Kirkpatrick. In King, where the Court reviewed the Board’s determination that it didn’t have jurisdiction.
Judge Falvey: You mentioned Kirkpatrick, why isn’t this case just like that, other than it’s a remand? Why isn’t that the logic of Kirkpatrick the same logic that should apply here?
Amy Odom: Because in Kirkpatrick, there wasn’t an affirmative decision from the Board that it lacked jurisdiction over the matter. In fact, in Kirkpatrick, the Court, I’m sorry, the Board necessarily accepted jurisdiction over the matter, because it remanded it. But we know from Young that the Board’s determination that a matter must be referred rather than remanded is, in fact, a determination that it lacks appellate jurisdiction over the matter because it hasn’t been adjudicated by the AOJ.
And in fact, if you look at the Board decision, that’s exactly what the Board said in this case, that it didn’t have jurisdiction over what it called a new claim for TDIU in 2000 that was submitted in 2018, because it hadn’t been adjudicated by the agency of a regional jurisdiction or the regional office.
That is exactly what this Court reviewed in Young. The only difference between Young, in this case, is that in Young, it was attached to a denial of benefits. But the fact that it was attached not to a denial of benefits, but it remand order in this case, can’t insulate the Board’s erroneous jurisdictional determinations from this Court’s jurisdiction.
Judge Falvey: Well, it doesn’t matter in your view.
Amy Odom: It does not matter that it was attached to a remand order as opposed to an order denying benefits.
Judge Bartley: So, 7252 does just refer generally to our authority to review Board decisions, but 7266, I believe, it talks about our authority to review final decisions of the Board. Now, if you think that we have jurisdiction here, explain why like step by step, given that this is a referral.
Amy Odom: Well, it’s a final decision by the Board in so far, as it found that it didn’t have jurisdiction over this issue. It’s not final as to the merits of type TDIU. But we’re not asking the Court to review the merits of the claim. We’re asking a Court to review the Board’s final determination that it lacked jurisdiction over the matter of TDIU. We can see from this notice that we submitted that that final decision has had an effect on the proceedings below that the regional office has, in fact, treated that as a brand-new claim. That was submitted in 2018. It has issued a new rating decision. And in the statement of the case that came following the Board’s remand of the issue of the higher rating for the knee, we can see that there is no mention of TDIU or whatsoever. That was the final decision as to the Board’s jurisdiction and the procedural posture of the claim.
Judge Davis: So, Rice makes it clear that a TDIU request is not a free-standing claim. So, how and why did the Board refer this? I mean, it seems like it’s a clear mistake.
Amy Odom: It is.
Judge Davis: Why are you all here? Couldn’t this have been resolved?
Amy Odom: Yeah. We believe that it could have been resolved by different joint resolutions. But as we understand it, it’s the Secretary’s position, simply that this Court has no power to review it. It’s the Secretary’s position that simply because it was attached to a remand order, that decision is insulated from this Court’s review. I don’t understand, we don’t understand, the motion to dismiss to argue that it was proper or correct for them to refer the matter rather than remand it, but simply that the Court lacks jurisdiction.
Judge Bartley: So, as to what I guess I call some earlier case law. I’m thinking particularly of Link, and there might be one or two others that talk about the fact that we can’t address an issue that was referred. Have those just been overcome by other decisions or how would you characterize that?
Amy Odom: My understanding of Link and those earlier cases that deal with this Court’s ability to address the merits of a determination is the underlying claim. So, in other words, in this case, it would be the Court’s ability to address the merits of the TDIU entitlement. But that’s not what we’re arguing here. Link didn’t talk about whether the Court has jurisdiction in the first place to review the Board’s determination that it doesn’t have jurisdiction, that’s Young. In fact, the Court wouldn’t be able to review the Board’s determinations as to TDIU in this case, because it didn’t make any. It erroneously found that it was a brand-new claim that had to be adjudicated by the AOJ before it could even look at it, and that’s why we’re here today.
Judge Falvey: Isn’t TDIU back before the Board now?
Amy Odom: It’s not. TDIU was denied in a rating decision. We submitted a notice of disagreement. We’re now waiting for a statement of the case. And it’s important to point out that in terms of the prejudice to Mr. Adams, coming from the Board’s mistake, is that we now have to wait something like 521 days from the date of the notice of disagreement to now get a statement of the case. That comes from the Board Chairman’s 2018 fiscal year report. If the Board had properly remanded the matter, rather than referred it and treated it as a brand-new claim, we would be looking at a return to the Board and a decision on the merits in 467 days. So far, it’s 600 days, with the RO decision, the rating decision, the notice of disagreement, and the SOC to even get the SOC in this case, so you can see the prejudice there.
Furthermore, if you look at the rating decision, it didn’t say anything about referral to the Director of Compensation. And since Mr. Adam’s combined rating right now is 50%, he wouldn’t qualify for just what we call schedular TDIU under 4.16a, as go to 4.16b. That’s an added delay. Now we have to wait a total of 1,800 days from the date of the claim to the Board decision because this was treated as a brand-new claim just to get the referral to the Director, so just for the Board to remand it again. And then we’re looking at a minimum of according to, again, the Board’s own statistics, 467 days to get the case back up to the Board. That doesn’t even account for any delay that might be contributed to by the process of going through the Director under 4.16b.
Judge Davis: Ms. Odom, let’s assume for purposes of argument that the Court has jurisdiction to hear this. What corrective action could the Court take, and how would that impact the time frames that you’ve just indicated to us?
Amy Odom: The Court could do one or two things. It could modify the Board’s decision to show a remand rather than a referral. I believe that that’s what happened in Young. Or the Court could vacate the Board’s decision on jurisdiction or reverse it and remand for the Board to either adjudicate the claim on the merits or remand it for further development or consideration by the Director. Another important thing here to point out is that in 2018, when the case is before the Board, we had not only the private vocational opinion showing that Mr. Adams is unable to work, is essentially excluded from the labor market due to his service-connected disabilities. We also had a VA exam, showing that he can’t even do sedentary work due to his service-connected disabilities. Now, that’s not in the record before you because there’s not a record before you yet. But it is the 2018 exam that’s referred to in the rating decision in the statement is the case that was in our notice.
All the evidence is there to grant this man, TDIU. But we are now stuck in this quagmire, if you will, of just nobody really paying attention to this claim, or where it’s supposed to be procedurally. The whole time this is happening, Mr. Adams is being deprived of the benefit that in our opinions, is established by the evidence and there’s no interest being paid on it while we work out where this claim is supposed to be and who’s supposed to deal with it.
Now, to your question of how would that add to the timelines we’ve discussed, it’s impossible to say exactly what the timeline would be from the remand, from the Court today to the Court’s decision, to the remand to the Court, and so on and so forth. But if I were a betting woman, I would put my money on less than 1,800 days.
Judge Bartley: Now, does the Court’s more recent decision in Harper have any impact here?
Amy Odom: Harper is relevant to the extent that it demonstrates that the Board does have jurisdiction over the issue of TDIU as part and parcel of a claim for an increased rating, and so it helps to illustrate the error in this case that the Board made, once the Court establishes that it has jurisdiction.
Judge Falvey: Doesn’t it also go back to my question previously, that TDIU is before the Board.
Amy Odom: Yes.
Judge Falvey: Right now, because of Rice and Harper.
Amy Odom: That’s right. We agree.
Judge Falvey: Going back to Chief Judge Davis’s question, then what would you have us to do?
Amy Odom: I’m sorry. It is not before the Board right now. I apologize. It was before the Board in its 2018 decision, but it has made the erroneous affirmative decision that it was not.
Judge Falvey: Right. But is it a part of the increased rating claim for the knee?
Amy Odom: It is. The Board had said nothing and had simply remanded the increased rating for the knee, and had not made the erroneous determination that it lacked jurisdiction because the TDIU was a brand-new claim. We wouldn’t be here today because there wouldn’t be this affirmative, harmful–
Judge Falvey: So, there’s an SSOC now, right? It’s back at the Board for the increased rating claim on the knee. We’re to presume that the Board’s going to ignore Rice and Harper and not look at TDIU and take some action now.
Amy Odom: Board has already ignored Rice and Harper.
Judge Falvey: Right, but it’s back to the Board, when it gets back to the Board.
Amy Odom: Well, the Board found that it’s not going to be back in front of the Board. It found it’s a brand-new claim that requires adjudication by the AOJ in a rating decision.
Judge Falvey: Right. When that gets to the Court on a final Board decision, we can look at that error.
Amy Odom: You can but what the Court said in Young is that it wants to avoid that kind of thing. The Court want and Young, the Court made clear it was–
Judge Falvey: That’s dicta, though and where they talk about that, isn’t it?
Amy Odom: I’m not sure that I would agree that it’s dicta but I would point out that it’s a really important and important concern. We just went over the numbers of how long this is going to take now. 1,800 days if we let it just sit as a brand-new claim.
Judge Falvey: It’s not just sitting, right? On referral, they actually moved faster than the remand. Didn’t the Secretary in a notice in June, was it a June 2018, the regional office issued a rating decision denying the TDIU. That’s the referred TDI you, right?
Amy Odom: Yes.
Judge Falvey: They moved faster than the remand which–
Amy Odom: Right, and it’s now been five, six, seven, eight, nine– Nine months from the notice of a disagreement that we haven’t gotten a statement of the case, and according to VA’s own statistics, we’re going to have to wait 521 days to even get the statement of the case.
Judge Falvey: So, you’re saying it’s unreasonably delayed, bring a petition for a writ. You referenced the All Writs Act as having jurisdiction, but you didn’t argue that in your briefs, right?
Amy Odom: That was in response to the Court’s question of how Monk has any impact on the Court’s jurisdiction in this case.
Judge Bartley: But if we would find that we don’t have jurisdiction, then how could a petition that is based on our potential jurisdiction ever succeed?
Amy Odom: You have potential jurisdiction over the merits of the TDIU claim. That is what I understand to be what you would look at to determine whether the Court has potential future jurisdiction for purposes of AWA. But again, we don’t think you even need to go there, because we think a decision that the Board lacks jurisdiction is a decision under 7252, over which the Court has jurisdiction, and that the Court’s precedent supports this beginning with Marsh in 1998. In that case, the Board found that it didn’t have jurisdiction, because there was an untimely notice of disagreement, and this Court reviewed that determination.
That kind of goes to your point, Judge Falvey. If the Court were to decide that it wasn’t going to get involved because in the Court’s view, TDIU is before the Board, again, we’d be in a similar situation where the Board could do something like a notice with disagreement that’s filed, that includes two claims gets up to the Board and the Board takes jurisdiction over one but then erroneously says, “We don’t have jurisdiction over the second one, because it wasn’t mentioned in the notice of disagreement or something about the notice of disagreement, so we’re going to refer it back to the AOJ.” Then we could get stuck in this cycle of the Boards, just erroneously referring, referring, and always avoiding this Court’s review. In Marsh, the Court made pretty clear that it is wary of that kind of thing, the Board’s own action affecting this Court’s jurisdiction and to deprive the Court of jurisdiction to review that action. For those reasons, we ask the Court to find that it has jurisdiction to review the Board’s determination that a referral is appropriate to deny the Secretary’s motion to dismiss and modify or reverse the Board’s decision. Thank you.
Judge Davis: Mr. Balker, is your position that there was no mistake by this being referred?
Fred Balker: No, Your Honor, we have not briefed the merits of this issue yet that the Secretary has not yet taken a position on whether the referral was error. The Secretary’s position, Your Honor, is even if the referral was error, it’s premature to review what the Board has done because there’s no final decision on the right knee rating claim.
If the right knee rating claim has returned to the Board, the Board could and because of how has submitted evidence of unemployability probably should determine whether he’s entitled to a TDIU as part of the right knee claim. Similar to what the Court reviewed in Harper when the Board refused to exercise jurisdiction over TDIU. The Court said, “No, that was improper, because Mr. Harper is entitled to the highest benefit or a decision on the highest benefit available for his PTSD claim, he’s claiming a higher rating for PTSD.” The same would be true in the upcoming Board decision assuming the unlikely case that he withdraws his appeal on the right knee. This rating claim does now return to the Board, as you could see it from the notice that Mr. Adams has filed.
Judge Bartley: Now, Mince talks about essentially, that whenever the Board declines jurisdiction, it has to give sufficient reasons or bases, did it do so here?
Fred Balker: Secretary would argue that Mince would apply to a final Board decision that declined to exercise jurisdiction. The difference, Your Honor, would be that in Mince and in King, the Board declined to exercise jurisdiction and in doing so effectively denied a claim. In King, in fact, the Court said that the Board’s denial of the appellant’s claim was based exclusively on the rationale that it did not have jurisdiction. And Mince as well, the 1151 issue that you were referring to the Board said it would– we’re stopping the 1151 claim, we’re not going to decide it. So, it’s essentially denying it because it lacked jurisdiction. So, because it was denying a claim under 7104, it was required to provide an adequate statement of reasons or bases, but 7104 doesn’t refer to preliminary or interlocutory decisions such as referral. I would agree with the Board.
Judge Bartley: But you wouldn’t– Your view of this as confining Mince and King to those particular situations which I admit are fairly unique. Wouldn’t that result in what the appellant is complaining could happen here? Is that– “Okay. We don’t have jurisdiction to review a referral, instead of remanding from now on, you can just refer everything and nothing in it.” And isn’t there some point at which this becomes kind of ridiculous? We don’t have any authority. It just doesn’t make sense to me.
Fred Balker: The difference in Secretary’s view, Your Honor, is a referral as a decision or a determination, saying, the Board doesn’t have jurisdiction yet. But–
Judge Bartley: Yes, but under 7261, the Board’s 71– I forgot the statute. The reasons or bases statute, which for some reason that’s escaping my brain right now. But doesn’t the Board have a requirement to provide reasons or bases irrespective actually, of whether it’s a referral or a remand or whether it’s the kind of decision that we would have jurisdiction over?
Fred Balker: Your Honor, the statute says that each decision of the Board shall include: Part one, a written statement of the Board’s findings and conclusions and reasons or bases; Part two, an order granting or denying relief. So, our view is that it’s referring to a decision of the Board, which a referral is not a decision. So 7104(d)1 does not apply to a referral of a Board, a Board referral, or a Board remand.
Judge Bartley: Without any explanation, the Board could start referring everything, as I said, with no reasoning,
Fred Balker: I don’t believe that 7104(d) covers Board referrals, Your Honor. I believe it would probably be something that a claimant should pursue under the All Writs Act because this, hypothetically describing sounds like an arbitrary refusal to adjudicate a claim, which I think is not the situation here. Here the Board was saying, “It’s too early to adjudicate this claim.” and even if the Board was wrong in saying that, when the appropriate time for the Court to review, it would be if the Board said it in the context of denying the right knee claim. Because that’s when Mr. Adams will get a final decision determining whether or not he’s entitled to a TDIU as part of his right knee claim on the rise.
Judge Bartley: Explain to me, how we would– why a petition for a writ such as you’re suggesting, how would our decision as to such a thing sound? What would it say?
Fred Balker: I believe claimant who thinks something is wrongly referred could follow a writ saying their claim has been unreasonably delayed under the track analysis. Or I think the Court would have the ability to review a writ saying that the Board or the regional office is not acting expeditiously because a claim should have been remanded by the Board or illustrates a new claim if it had been remanded by the Court before, so that the expeditious processing continues below.
In this case, though, I believe that the correct approaches is that appellant should exhaust in his administrative remedies, argue to the Board as he’s done that TDIU is part of his right knee claim, and receive a final decision from the Board, which as he has a 12 docket number and it has previously been remanded from the Court, so it’s getting expeditious treatment. It should come fairly soon. I don’t know if I have an exact time frame on that, but–
Judge Bartley: Well, irrespective of whether we have jurisdiction, let’s pretend we didn’t exist. And you were reading the Board decision. Would you say that it had properly applied Rice and Harper in referencing only the 2018 claim for TDIU?
Fred Balker: Your honor, in referencing only that it is hard to tell because it doesn’t say what the application says. For example, if the application said, hypothetically speaking, “I’m entitled to a TDIU because I have PTSD.” Then the Board might have been preceding correctly. But we haven’t addressed the merits of that issue yet. That’s not what the application says. So– but the Board didn’t provide any explanation. So, you’re correct. It’s difficult to determine from that short bit of language on the front of this document that the Board issued. Why it determined it was a separate claim as opposed to part of the right knee.
Judge Bartley: Part of the intrinsic TDIU claim, that’s part of the increase. Yeah.
Fred Balker: Yes, your honor. But the Secretary’s view is that doesn’t prevent the Board from correcting– assuming that was an error. It doesn’t prevent the Board from correcting it, when it issues the final decision on the right knee which the right knee has returned to the Board. It doesn’t affect as in Harper when the Court said, “The Board still had to adjudicate TDIU as part of the PTSD rating claim.” There’s no reason why that wouldn’t be– The Secretary doesn’t believe the referral affects the Board’s duty to adjudicate TDIU as part of the right knee claim when it comes time to issue a final decision on that rating claim.
Judge Bartley: Okay. And when you say that TDIU is going to shortly be before the Board, do you mean that it will be before the Board explicitly or just that as it’s intrinsically part of a claim for increase, it will be before the Board? Because I was rather confused. And maybe I didn’t read it carefully enough. But I saw on remand there was a rating decision that included the eval. for the right knee and also separated out the TDIU issue. But then, on the SSOC, it addressed only the right knee and didn’t refer, I don’t think, to TDIU. So, my original question was would it be before the Board explicitly or just wrapped up intrinsically in the claim for increase?
Fred Balker: I think, the Secretary’s view as it’s part of the right knee claim as a part of the increased rating. So, the Board, if under an appellant has specifically argued that as part of his right knee claim, so we’re not going to dispute that the issue is not before the Board at this point with regards to the right knee. So, the issue is there because it’s the same claim. The TDIU is an issue of the right knee claim for him, as part of the Board’s duty to decide whether he can get the highest rating possible. But we don’t know at this point what the Board’s going to do with that because it hasn’t issued a claim. I mean, a decision on it yet. That’s why the Secretary believes there’s no jurisdiction because the Board has yet to decide whether he’s entitled to a higher rating for his right knee to include whether or not he’s entitled to a TDIU as part of that higher rating. The Secretary believes the appropriate time for him to address that is when he gets the final decision on his right knee.
Judge Bartley: Even though Rice which talked about TDIU being intrinsically part of a claim for increase was issued prior to the Board’s decision here, I believe.
Fred Balker: The Secretary’s not arguing that the Board acted correctly in referring the manner of the Secretary’s position is that there’s not a Board decision. There’s nothing final. And the appropriate time for the Court to review what the Board did on under setting 252 and under decisions such as Majette and Kirkpatrick is when there’s something final that– Assuming that the referral was wrong, it would be no different in the Secretary’s view than if the Board said something in a remand that was wrong. It’s just outside the scope of review. And even if it’s obvious, it’s just– This congress said that the Court can review Board decisions which Federal Circuit has determined to be something that grants or denies relief. And because no benefit has been granted or denied by virtue of the remand or by the referral, then setting 252 doesn’t apply yet and the Court does not have jurisdiction to review the matter.
Judge Bartley: But in Young, didn’t the Court suggest that an issue that could affect effective date should be taken up as soon as possible and not delayed?
Fred Balker: Well, the Court said in Young, your honor, that the majority opinion, the per curium said that they didn’t think that the referral would affect the effective date because it was a downstream. So, I think the dissent and the majority disagreed on whether the referral affected the effective date in that case. But the Court and Young had jurisdiction by virtue of the denial of the claim. So, when the Court was reviewing the referral, it was saying the Board, when it denied part of that claim, it didn’t do– And referred are the same claim it did so inappropriately. But under Durell, once a claim is on appeal, the Court can review all of it. Every aspect of it. That’s how the Court had jurisdiction in Young.
The Court explicitly is saying in Young; it was not deciding that it could review. It was different that the issue of whether it could review a freestanding appeal of a referral is not before it. And so, Young does not control whether the Court has jurisdiction in this case.
Judge Davis: On page 202, Mr. Balker of the Young decision in the holding, there is a note from the Court that indicates, “We note the appellant argues that the Court would have jurisdiction over any Board decision to refer a claim even if no part of the claim was denied.” And then it says, “We need not decide that issue today.” So, Young didn’t really decide the question that we have before us today, right?
Fred Balker: No, your honor. I apologize if that’s what you understood me to be saying. I meant that Young doesn’t control either way because the Court didn’t decide–
Judge Davis: Did not decide the question.
Fred Balker: Right.
Judge Davis: Right. And let me kind of pick up on what Judge Bartley was asking regarding– Let’s assume that this is not a jurisdictional issue for the Court but simply a way to determine what is the most efficient corrective measure to take for a mistake of referral. Without the Court, what would be the most efficient way to correct a mistake here?
Fred Balker: Without the Court, the most efficient way would be for appellant to argue that– as he has done, that his right knee disability causes him or contributes to unemployability, which under Rice and Comer and other cases raises that issue. That puts the issue squarely before the Board jurisdictionally when the right knee claim returns and then the Board should. If the Board decides this case properly, grant, deny TDIU or determine that further development is needed.
Judge Davis: There’s no better way to do that. What if the appellant advised the General Counsel’s Office that this was a mistake and you all sat down and talked about it, would that get this done any quicker?
Fred Balker: I don’t believe there’s a quicker way to do it, your honor because the Board proceeds in docket order, so the Board will decide the case.
Judge Davis: So, the request for TDIU has a solely different docket number now, is that my understanding?
Fred Balker: The request for TDIU that was adjudicated in 2008 doesn’t yet have a docket number because it hasn’t completed its’ appeal to the Board on that adjudication. But the Secretary does not believe that that deprives the Board jurisdiction to adjudicate TDIU as part of the right knee claim that has returned back to the Board.
Judge Davis: Okay. So, what we have as the record is a– I have an April 9, 2018 decision from the Board. It’s about two pages. And it indicates that under the remanded issue heading it, says, “As an initial procedural matter, the veterans submitted a claim for entitlement to a total disability rating based on individual unemployability with the service-connected disabilities, TDIU in February 2018. As this issue has not yet been adjudicated by the agency of original jurisdiction, the Board does not have jurisdiction over it. And it is referred to the AOJ for appropriate action.” So, there is– I just want to make sure I understand. There’s not another docket number associated with this request?
Fred Balker: Your honor, the Board assigns the docket numbers based on the Form 9. So, because the appellant hasn’t – if you look at the notice, it adjudicated that as a left leg increase rating plus TDIU that has– He’s filed a noticee of disagreement but there’s not been a substantive appeal yet. And that’s the docket numbers are assigned based on the substantive appeal dates. So, as far as what is proceeding separately as a left knee increase rating claim with TDIU does not yet have a docket number because there’s been no completed appeal.
Judge Davis: Okay. But it likely will get another docket number. It won’t be docket number 12-16644, right?
Fred Balker: That’s correct, your honor.
Judge Davis: So, it’ll be a different docket number.
Fred Balker: Yes, your honor.
Judge Davis: Which will be taken up in a different sequence than the right knee claim is being taken up. Okay.
Fred Balker: The Secretary’s view, your honor, is that a separate docket number for left knee to include TDIU does not deprive the Board of the ability to adjudicate TDIU also as part of the right knee because the left knee claims and the right knee claims are separate claims.
You are correct that when he completes his appeal of the left knee and TDIU rating decision that he filed as his notice, that will get a different docket number. But because he’s claiming the highest rating possible for his right knee under Harper and Rice, the Board does not deprive jurisdiction to determine whether he’s also entitled to a TDIU and that the docket 12-16644 appeal of the right knee, that’s currently pending at the Board.
Judge Davis: You said the Board does not deprive?
Fred Balker: With– Oh, sorry. We do not believe that the left knee/TDIU appeal deprives the Board of separate jurisdiction to consider whether TDIU is part of his right knee claim, when it issues the right knee decision that’s forthcoming. And when that is– assuming that the Board does not grant the maximum benefit possible, including TDIU, then that will be a final denial of benefits that appellant can appeal if he chooses to the Court and the Court can decide whether the Board was correct or incorrect at that time.
The Secretary’s view is not that the Board’s actions are unreviewable forever. It’s that the time is not yet ready for the Court to review whether TDIU is part of the right knee claim because the Board has yet to issue a final decision on the matter within the meaning of Section 7252, as interpreted by the Federal Circuit as requiring there to be an order granting or denying benefits for there to be a final decision.
Judge Davis: Yeah. But the frustration I have with that, Mr. Balker, is that 1988, the Congress created this Court. And in my view, this Court’s juris– This is the only federal Court in the country that deals with issues coming out of the Department of Veterans Affairs. And if we don’t have jurisdiction over some of these issues, what happens? We’re back to 1988 or before 1988. So, I have some real problems with the Secretary’s position on this particular issue. As I read the cases and 7252, I think were there. But I understand you’re representing the Secretary and you’re articulating the position that you articulate. We would be back to pre-1988 if we left it to the Department to correct an error, it seems. It would not come to the Court. So, the Court is here for 30 years now. And you’re telling me that we have no jurisdiction to correct an error. That’s my frustration.
Fred Balker: Your honor, Congress did enact Section 7252 for the Court to review and correct errors that the Secretary has made. But under the separation of powers, what Congress said the Court has to wait to correct an error until the Secretary has had a chance to issue a final decision and possibly correct it itself. And then the Board could very well issue a decision addressing TDIU tomorrow based on whether the cases on the docket, we don’t really know exactly when that will happen. And then it will have corrected its’ error itself and the Court’s review of the remand would have been unnecessary. The Secretary’s view is just that, it’s not that the Court can’t review decisions as the Secretary makes, but it must be a final decision. The Secretary has the opportunity to correct its own errors prior to issuing a final decision. And at that point, it’s appropriate for the Court to review.
Judge Davis: So, your position obviously is that a referral decision or a remand decision is not a final decision.
Fred Balker: Yes, your honor.
Judge Davis: All right.
Judge Bartley: And there’s no way to parse the Board decision. It says the Board does not abort– The issue has not yet been adjudicated by the AOJ. The Board does not have jurisdiction over it. Period. In my mind that’s a period. And it is referred. So, you’re finding it impossible to that there’s no way that we could separate out the conclusion that the Board lacks jurisdiction from it’s decision to refer the issue.
Fred Balker: Correct, your honor. It’s different than in King and Mince because the Board’s jurisdictional determination and the referral didn’t deny any benefits.
Judge Bartley: Right. But even– I mean, a lot of Courts have exceptions to these rules about not tampering with a non-final decision. I mean even the Federal Circuit has the Williams case, which if I remember it correctly, which I probably don’t, allows them to review even where the Court has remanded in cases where it’s capable of repetition but evading review or some standard like that. I mean, why wouldn’t a rule like that apply here?
Fred Balker: When Kirkpatrick, the Federal Circuit explicitly said, it was not going to extend Williams. It declined– I mean it rejected an argument from the Mr. Kirkpatrick’s to extend Williams. And its’ progeny to Board remands. The Secretary sees no reason why it shouldn’t refer to Board referrals as well. So, I think, the case that was cited in appellant’s response. It’s also one of the Federal Circuit’s exceptions to where it can review Court remands. But in Kirkpatrick, the Federal Circuit explicitly said, it was not going to extend those exceptions to finalities, to Board actions for this Court’s review. So–
Judge Bartley: As to remands?
Fred Balker: As to remands, your honor. The Secretary believes that the distinction between a remand and a referral based on jurisdiction is being overblown, I guess, is the correct way because a Board remand is also an exercise of jurisdiction. And you can’t appeal a remand by saying the Board exercised too much jurisdiction. You still have to wait for a final decision on that issue. So, what appellant is essentially arguing is that the Board exercised too little jurisdiction as opposed to too much. And both issues, remand and referrals involve either explicit as in this case or implicit determination that the Board has jurisdiction or doesn’t over what it’s doing. And so, the Secretary believes that all the case law from the Federal Circuit and from this Court, stating that the Court can’t review Board remands, should apply equally to Board referrals.
Judge Bartley: Right. Well, you’re admitting that the substantive appeal hasn’t been found yet in the case and we know from other cases and from testimony before Congress how long it takes for a substantive appeal for the case to even be certified to the Board after substantive appeal. So, any argument you’re making that that will occur with some speed in this case? I mean, if past history is a lesson, obviously, I think you’re mistaken that this will occur. Even though I understand that the VA is not prioritizing certification issues. Nevertheless, that’s a considerable delay.
Fred Balker: Respectfully, your honor, our argument is that the right knee is already back. Not that the left knee is being pre—will have a docket number anytime soon. But that because the Board hasn’t made a final decision saying that the right knee, he’s not entitled to a TDIU for the right knee, it can still do that. The Secretary’s view is that the referral doesn’t affect whether the Board can adjudicate TDIU as part of the right knee. And that’s currently back before the Board. And because it’s back, the same time considerations would have been the same as if the Board had referred TDIU.
Judge Bartley: Right. Well, the fact that it didn’t recognize that TDIU was inherent in the claim for increase the first time around, I don’t know that that bodes very well for the current adjudication before the Board.
Fred Balker: Yes, your honor. But the record has changed since then. So, we don’t want to speculate to state what the Board will do at this point. If there’s no further questions the Secretary respectfully states under Section 7252, the Court doesn’t have jurisdiction to review the Board’s referral. Thank you very much, your honor.
Judge Davis: You would like your motion to be granted.
Fred Balker: Yes, your honor.
Judge Davis: Thank you.
Amy Odom: Bottom line here is TDIU is not being adjudicated correctly. It’s not being adjudicated correctly because of the Board’s decision that it was a brand-new claim, that it didn’t have jurisdiction over. All of the parade of horribles that the Court talked about in Young, apply equally here. The only difference between Young and this case, is that in this case, the erroneous referral was attached to a remand order. The Court should not accept such a narrow and erroneous view of its jurisdiction that that one little–
Judge Falvey: Ms. Odom, but isn’t that the definition of decision that we have to go by, that the decision is just not any decision. It’s a decision that pertains to the granting or denial of a benefit. And you just don’t have that jurisdictional hook here that you had in those other cases. So, this is no different than a remand.
Amy Odom: Respectfully, your honor, I disagree. The statutory language is not a decision as a grant or denial of benefits. It’s a grant or denial of relief. And relief isn’t–
Judge Falvey: What is interpreted by the Federal Circuit? It involves an adverse decision pertaining to the granting or denial of a benefit.
Amy Odom: In Kirkpatrick, the Court, the Federal Circuit use the terms interchangeably, benefit and relief. And relief has to include the acceptance or rejection of jurisdiction because this Court has reviewed those determinations. And that’s well in line with federal appellate Court jurisprudence.
Judge Falvey: Although not a precedential decision, there’s a Federal Circuit case, Hobson, that addresses this very question. And although it’s not precedential, it’s certainly instructive. And Hobson came down that a referral is not a final Board decision subject to this Court’s jurisdiction.
Amy Odom: Your honor, I’m not familiar with Hobson. I would like to be. And perhaps it would be helpful if I would be permitted to review Hobson and file something with the Court about how and to what extent Hobson should apply.
Judge Falvey: Okay.
Amy Odom: But I would point out that even VA’s own regulations talk about dismissal order being part of a decision. And a referral is the same effectively as the dismissal order. It’s the Board saying, “We don’t have jurisdiction over this matter.” And in this case, it has affected the proper processing of this appeal. We’ve told the RO and we’ve said in our submissions to the RO and to the Board, this is not a new claim for benefits. And if you look at the statement of the case dealing with the knee that has been remanded, it doesn’t say anything about the vocational opinion. It didn’t say anything about the VA exam saying that Mr. Adams can’t even do sedentary employment. They’re not treating it like it’s part of the claim for the increased rating because the Board said it’s not.
Judge Falvey: Well, those are merits arguments, right?
Amy Odom: It is. But it goes to why this is a decision.
Judge Falvey: It could– Probably one of my most important questions is what service did Mr. Adams serve in?
Amy Odom: I, unfortunately, am not–
Judge Falvey: We don’t have a record. And I always like to know that. But it’s not important to the outcome of this decision and everything. But it does point out the fact that we have no record. And you’re referring to merits arguments, that really should have no bearing on whether or not this Court has jurisdiction over this referral.
Amy Odom: That’s right. And I would agree. The only thing that has any bearing on this Court’s jurisdiction is the first page of the Board decision that says, “We don’t have jurisdiction over this claim because it’s a brand-new claim.” That’s all you need. That is the decision under the statute 7104 and under 7252. And we know that from the plethora of case law from this Court in which it’s reviewed decisions by the Board saying and that it lacks jurisdiction. The Court– A federal appellate Court always has jurisdiction to review a lower tribunal’s determinations as to its’ own jurisdiction. That’s just a well-settled principle in federal appellate jurisdiction. There is no reason why that particular rule shouldn’t apply to this Court. And it’s especially important in this context where the Court, as — I’m sorry, the Board, as Judge Bartley has pointed out can just continue to evade review.
Judge Falvey: So, under that, we should– We have jurisdiction over all referrals.
Amy Odom: Yes.
Judge Falvey: To review all referrals. All referrals require reasons or bases.
Amy Odom: Yes.
Judge Falvey: A written Board decision with reasons or bases subject to appeal to this Court. Is this sort of understanding of what a referral being a final Board decision, going to make the system more efficient for the veterans?
Amy Odom: Yes, because a proper determination of what the Board has jurisdiction over will make it certainly more efficient for Mr. Adams, who now has to wait another 1,800 days to get a proper determination from the Board as to his entitlement, TDIU. And it’s true. There are a lot of referrals out there. But there are a lot of Board decisions out there, period. And not every single decision gets appealed to this Court. But it’s this Court’s obligation as Chief Judge Davis pointed out to review the VA’s and the agency’s processes and determinations. And here is–
Judge Falvey: What’s your authority for that proposition?
Amy Odom: That it’s–
Judge Falvey: That it’s our duty to look at their processes and–
Amy Odom: As part of the final Board decision.
Judge Falvey: As part of a final Board decision. Okay.
Amy Odom: And here we have a final Board decision on jurisdiction. It’s the Court’s duty to review that decision to determine whether the Court applied the law correctly. And then I– And it’s our belief that if the Board– if and when the Court gets the merits of the case, it’ll determine that the Board’s decision here is erroneous. And it’s important to point out that the Secretary is not disputing that. The Secretary is just saying, “Just give us 1,800 days to try to figure this out. And then Mr. Adams can come back if he’s still not pleased.” And the Court shouldn’t accept such a narrow view of its’ jurisdiction.
Judge Davis: So, I come back, Ms. Odom, to my question earlier. And that is if the Court exercises jurisdiction here, what does that do for the appellant?
Amy Odom: It gives Mr.– If the Court exercised jurisdiction and agrees with us on the merits, then Mr. Adams and the agency will now have to process the claim correctly as part of the increased rating for the knee. It hasn’t done so. The Court, like I said, can modify the Board’s decision as it did in Young or it can reverse the Board’s decision that it lacked jurisdiction.
Judge Davis: And there will be some savings in terms of processing time?
Amy Odom: Yes, your honor. Again, I can’t be sure of the exact numbers. But again, I can be confident that it’s less than 1,800 days. If there aren’t any other questions, we would ask the Court to deny the Secretary’s motion to dismiss.
Judge Davis: Thank you.
Amy Odom: Thank you.
Judge Davis: The case is submitted for consideration. The Court will now come down and greet counsel.
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