GARCIAMEDINA v. MCDONOUGH
Oral Argument — 03/07/2023 · Case 22-1104 · 26:37
0:00
Judge Hughes
The next case is No. 22-11-04, Mr. DeHopkis.
0:08
Sorry, I should have known how fast I was going to go.
0:12
Appellant Attorney (Kenneth H. Dojaquez)
Can you correct me?
0:14
DeHopkis, Your Honor?
0:15
DeHopkis.
0:16
Appellant Attorney (Kenneth H. Dojaquez)
Thank you, Your Honor.
0:25
May it please the Court?
0:27
Before getting into our argument, I want to just emphasize that we have to keep in mind the unique aspects of this appeal.
0:34
Number one, it is a clear and unmistakable error issue.
0:37
And what that means is that the evidence will not change, and we're restricted to what the evidence and the law at the time of the decision being challenged was.
0:47
And number two, in that same vein, the facts of this case are undisputed.
0:54
The Veterans Court at Appendix 3 at the top clearly notes that the evidence demonstrates a,
1:05
a mild amount of pain throughout the entire range of motion,
1:08
and that the examiner identified mild, was additionally limited by pain.
1:18
What we also know is that the Board determined that under the current law, 4.38 CFR 4.59 would entile painful motion in the shoulders to a 20% rating.
1:29
So the only question that remains in this appeal is the pure legal issue of was there a change in law between 2003,
1:36
and the present.
1:38
And we believe that because of that unique circumstance of this particular issue,
1:43
that the Veterans Court was required to address that legal issue as opposed to remanding it.
1:49
We see this case as akin to Adams, where the appellant there argued...
1:56
Judge Hughes
Can I just ask you about, I mean this is a non-profit decision, right, because it's a remand, so how does it satisfy the living criteria?
2:04
I get that your argument is...
2:06
I'm entitled to a decision from the Veterans Court instead of a remand,
2:12
but the rest of the living criteria don't seem to be met here.
2:16
I mean, even if you have a pure legal issue, it has to be something that's going to escape review or the like,
2:21
but you could very well get benefits for your client on a remand.
2:25
Appellant Attorney (Kenneth H. Dojaquez)
I disagree with that, Your Honor.
2:28
Judge Hughes
Do you agree that your client would get benefits on a remand?
2:31
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
2:32
And because, as I began, this is a Q case.
2:36
And so the law and the facts will not change.
2:39
The Board has already determined that the law, there was a change in law in 2016.
2:45
The Veterans Court's order was explicit to only better explain that legal ruling.
2:51
The Veterans Court did not say, reassess that legal determination,
2:55
determine whether that's actually what the law says, and then make a new decision.
3:00
And so the Veterans...
3:01
Judge Stark
Isn't that implicit in the remand?
3:03
They're saying, you have not given an explanation.
3:06
So we, the Veterans Court, can't do our review.
3:09
You need to give us a better explanation.
3:11
Doesn't that leave open the possibility that they will fail to give an explanation
3:15
because the law, in fact, was not what the Board asserted it was?
3:21
Appellant Attorney (Kenneth H. Dojaquez)
I don't read the case to imply that, Your Honor.
3:27
Judge Stark
So your argument is it's a complete charce?
3:29
Yes, Your Honor.
3:30
Appellant Attorney (Kenneth H. Dojaquez)
Absolutely.
3:31
The VA has been consistent in their approach.
3:35
And granted, this is outside the record in this case,
3:38
but I can tell you from experience, with my Veterans,
3:41
I have about a dozen on a similar issue,
3:44
and the VA is steadfast that there was a change in law in 2016
3:50
and that it was required prior to that time to assign this 10% rating,
3:55
as the Board said here, irrespective of the diagnostic code assigned.
3:59
And so the remand order here is the only thing that it's going to give,
4:05
Mr. Garcia at Medina, is a different explanation for the same outcome.
4:10
And we point to that the Veterans Court's order, again,
4:17
does not say or even imply that you can come to a different conclusion,
4:21
only that it failed to adequately support its determination.
4:25
And even though the Veterans Court did,
4:27
and we acknowledge that it did allow us to present.
4:31
Judge Hughes
I mean, I think your argument that isn't the point of this is,
4:35
the Veterans Court can't discern the basis for the VA's legal argument here,
4:40
and it's sending it back and telling the Board to look at this.
4:44
And if the Board wants to continue this argument,
4:47
then it has to provide a more detailed explanation.
4:50
And if the Board gets it back and says,
4:52
oh, well, we don't really have anything, maybe we're wrong,
4:55
it can change its mind.
4:58
You're saying they're not going to,
4:59
but the Veterans Court doesn't know that, and we don't know that.
5:03
Appellant Attorney (Kenneth H. Dojaquez)
I...
5:04
Judge Stoll
Isn't there also a possibility...
5:05
Is there a possibility that the Veterans Court would find the reasoning deficient
5:10
and then your client would be able to be successful?
5:13
Appellant Attorney (Kenneth H. Dojaquez)
I'm sorry, Your Honor, I'm not sure I understand.
5:15
Judge Stoll
Even if the Board provided the reason, then there's review by the Veterans Court.
5:19
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
5:20
And that's, again, after another remand.
5:22
But, again, the Veterans, the Secretary, both at the Board and at the Veterans Court,
5:28
is steadfast in their position that there was a change in law,
5:33
that prior to 2016,
5:36
the 20% rating for the shoulder.
5:38
Judge Hughes
Well, I mean, it also could be true that the...
5:39
I know you don't agree, but that the Secretary is right.
5:41
And so the Board goes back, actually explains why he believes that,
5:46
and it comes back up, and the Veterans Court agrees with the Secretary.
5:49
Appellant Attorney (Kenneth H. Dojaquez)
Absolutely, Your Honor.
5:50
That's a potential, but we want a decision,
5:55
and a decision from the Veterans Court that we could potentially challenge here before this Court,
6:00
and to settle this question once and for all.
6:02
Judge Hughes
Well, I think that's what the Veterans Court wants, too.
6:04
It just isn't...
6:05
It's not going to rule on a question that it can't discern what the Secretary's legal basis is.
6:14
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
6:15
I think that's a way to read the Veterans Court's decision.
6:20
But, again, we would argue, as we did in our briefing,
6:24
that the Veterans Court reviews de novo all legal issues.
6:28
And so whatever explanation...
6:31
Judge Hughes
I mean, that's their standard of review.
6:32
That's true for all legal issues.
6:34
The Veterans Court does reasons...
6:36
I mean, you know this.
6:37
They do reasons and basis rebands all the time,
6:39
and a lot of them are on legal issues.
6:42
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor, but if I'm...
6:44
Judge Hughes
I get it.
6:45
And a lot of them are on key cases, too.
6:47
I mean, I don't...
6:48
This would open up a huge, you know, loophole to our finality here at the Freedom of the Senate.
6:54
You're allowed to immediately appeal a Veterans Court remand in a key case
6:59
just because it's a legal issue.
7:00
Appellant Attorney (Kenneth H. Dojaquez)
I don't agree with that entirely, Your Honor.
7:03
I do think it would definitely open up more decisions,
7:07
to this Court's review.
7:09
But I think this one is very unique
7:11
because, as we pointed out in our briefing,
7:15
and this, I think, really is the critical aspect
7:19
that brings it within the Adams exception,
7:23
is that the facts are undisputed,
7:26
and they are favorable to the veteran.
7:28
We know, based on the Board's decision,
7:30
that the painful motion...
7:32
Judge Hughes
When you say Adams exception, I don't...
7:34
Is that the same thing as the...
7:37
Yes, Your Honor.
7:39
Appellant Attorney (Kenneth H. Dojaquez)
And in Adams, this Court found jurisdiction
7:42
because he alleged and argued that he was entitled to a decision
7:47
because the evidence did not rebut the presumption of sound condition.
7:52
And here, we are arguing that we are entitled to a decision
7:57
because the law does not support the Board's legal ruling.
8:03
But, again, the facts here are...
8:06
are undisputed.
8:07
He has painful motion.
8:08
We know that under the current interpretation of the law,
8:12
he's entitled to a 20% rating.
8:14
And so the only question is whether there was a change in law
8:17
such that he is barred under George
8:20
from asserting that interpretation.
8:23
That is a...
8:25
We think that is a unique enough situation
8:27
that it would not entail a whole bunch of other Q issues
8:31
because in other Q issues, there's some question, typically,
8:35
as in many of the...
8:36
Well, all of the...
8:37
Judge Hughes
I still don't understand why the remand is necessarily fruitful.
8:42
The Secretary's position is that it was a change in law, I assume,
8:46
so you don't get Q benefit.
8:48
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
8:49
Judge Hughes
But the Veterans Court said,
8:50
the Secretary, you haven't explained at all
8:52
why you think this was a change in the law,
8:55
and you need to explain that to us
8:57
so we can rule on that issue.
9:00
Appellant Attorney (Kenneth H. Dojaquez)
My response, Your Honor,
9:01
is that it's a de novo review by the Veterans Court.
9:05
Judge Hughes
That doesn't mean that the Court isn't entitled to the Secretary's...
9:09
fully explained views in the decision it's reviewing.
9:12
Appellant Attorney (Kenneth H. Dojaquez)
Well, and the Secretary was represented by the General Counsel, and he...
9:17
Judge Hughes
I mean, this happens all the time, not just in the VA context,
9:19
but in any court review of agency decisions.
9:22
If we find a basis for the agency's decision
9:25
not to be discernible by the record,
9:28
even if it's a legal conclusion,
9:29
we will sometimes send it back
9:31
to get their fully explained legal reasoning.
9:34
Appellant Attorney (Kenneth H. Dojaquez)
Absolutely, Your Honor.
9:35
But again, I think that in this unique context
9:37
where the facts are undisputed,
9:39
the facts are favorable, and...
9:41
Judge Hughes
Sure, the facts are favorable,
9:42
but they still have to decide,
9:43
the Veterans Court still has to decide
9:46
the legal issue of whether it's a change in the law or not,
9:49
and it hasn't gotten the fully explained views
9:53
of the Secretary on that legal issue.
9:54
Appellant Attorney (Kenneth H. Dojaquez)
And the Secretary had an opportunity at the Veterans Court,
9:58
and I would submit that if the...
9:59
Judge Hughes
The Secretary at the Veterans Court
10:01
is different from the Board, isn't it?
10:05
Appellant Attorney (Kenneth H. Dojaquez)
It's the same...
10:06
No, Your Honor, it's the same Secretary.
10:08
Judge Hughes
I mean, it's the Secretary,
10:09
but it's, you know, it's not the Board of Judges,
10:13
it's the Office of General Counsel.
10:15
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
10:16
Judge Hughes
Wasn't the Court entitled to the views of the Board?
10:21
Appellant Attorney (Kenneth H. Dojaquez)
It's entitled to the views of the Secretary
10:24
in the matter of the interpretation of a regulation, Your Honor,
10:28
and whether deference is afforded
10:30
depending on where we are
10:32
and whether it's a regulation or statute.
10:34
Judge Hughes
Not only did it have a whole lot of administrative law to do,
10:35
but if the Secretary came in
10:37
and gave a more...
10:39
a more wholesome explanation
10:40
that's not contained in the Board's decision,
10:43
wouldn't you be arguing that's a chenary violation?
10:45
Appellant Attorney (Kenneth H. Dojaquez)
No, Your Honor, I would not,
10:46
because the underlying determination remains the same.
10:50
If they change their reasoning for affirming...
10:52
Well, that's what I mean.
10:53
Then yes, but if they're...
10:54
Judge Hughes
There's no reasoning at...
10:55
Let's take this hypothetical,
10:57
because I think this is what the Veterans Court found.
10:58
There's not any legal reasoning here in the Board's decision.
11:01
I need to see the legal reasoning in order to review it.
11:04
If there's no legal reasoning,
11:06
then the Secretary can't come in
11:07
through the Office of General Counsel,
11:09
and provide legal reasoning
11:11
that wasn't in the decision at all.
11:13
That violates chenery.
11:18
Appellant Attorney (Kenneth H. Dojaquez)
I don't...
11:20
I think it's close, Your Honor,
11:21
but I think that, again,
11:23
because it's a de novo review
11:24
and it's an interpretation of the law,
11:26
the Board said it means this.
11:28
And if the Secretary before the Court
11:33
just expands upon that and says,
11:35
you know, they could have very easily pointed to,
11:36
here's an official, authoritative policy...
11:39
Judge Hughes
I'm not talking about expanding upon that.
11:40
I think the Court says there's no reason.
11:42
I don't care whatsoever.
11:43
If the Secretary had come up with its own reasoning
11:45
and the Veterans Court had adopted that new reasoning,
11:50
just take my hypothetical that it's new reasoning,
11:52
I'm pretty sure you would be up here
11:53
saying that's a chenery violation.
11:56
Appellant Attorney (Kenneth H. Dojaquez)
I don't think I would, Your Honor, in that case.
11:58
I want a ruling on this legal issue,
12:01
and I don't think it is a chenery violation
12:03
in that specific hypothetical that you just laid out.
12:10
So...
12:10
Judge Stark
I think you began,
12:12
you began by saying the Veterans Court
12:13
was required to resolve this legal issue now
12:16
rather than remand.
12:17
If I understood you correctly,
12:18
what authority can you cite
12:20
that they were required to decide it
12:22
and didn't even have the option to remand it?
12:25
Appellant Attorney (Kenneth H. Dojaquez)
So, primarily, Your Honor,
12:27
the authority is 7261A.
12:29
And again, I recognize that it says
12:30
to the extent necessary.
12:33
What was that again?
12:35
7261A, which is their scope of review.
12:38
And it says,
12:40
shall decide all questions...
12:42
All questions of law presented.
12:45
And it...
12:46
Well, to the extent necessary to its decision
12:48
and when presented,
12:49
shall decide all relevant questions of law.
12:51
We believe that it is necessary
12:54
because, again, the facts are undisputed,
12:56
the facts are favorable,
12:57
and the resolution of this legal issue...
12:59
Judge Stark
Express statutory authority to remand as well.
13:02
Do they not?
13:03
Appellant Attorney (Kenneth H. Dojaquez)
They do, Your Honor.
13:04
But we, again, we don't...
13:07
7252A does say it's remanded as appropriate,
13:10
but our argument is that
13:12
it's inappropriate
13:12
under these unique circumstances.
13:15
Judge Stark
Finally, on the William and Adam's exception,
13:18
what is the clear and final decision of law
13:21
that, or clear and final decision
13:23
that the Veterans Court made in your view?
13:25
Appellant Attorney (Kenneth H. Dojaquez)
So, we believe that the Veterans Court's
13:28
legal ruling was that
13:29
they are unable to review
13:31
a legal determination de novo
13:35
without adequate reasons and basis
13:37
from the Veterans Court.
13:37
Judge Stark
And where do they say that
13:39
we're unable...
13:42
that we must remand,
13:43
which is what I'm hearing?
13:45
Appellant Attorney (Kenneth H. Dojaquez)
So, Appendix 8 to 9,
13:48
because the Verit failed to adequately support
13:51
its determination,
13:52
the Court finds that remand is warranted.
13:54
Judge Stark
And why isn't that just an exercise of the discretion
13:56
that they clearly have under the statute
13:58
to decide whether...
13:59
to decide the issue
14:00
or to send it back for further explanation?
14:03
Appellant Attorney (Kenneth H. Dojaquez)
Again, well, I just point you back to my...
14:06
as I opened up, Your Honor,
14:07
the facts are undisputed,
14:08
the facts are favorable,
14:09
the decision will not change from the Board.
14:12
Um, and, and, in a...
14:15
Well, I...
14:15
The decision will not change from the Board.
14:21
Appellee Attorney (Amanda L. Tantum)
May it please the Court,
14:22
the Court should decline to review
14:23
the Veterans Court's non-final order
14:25
and dismiss the appeal.
14:27
The Court has made clear
14:29
that it will consider a non-final remand order
14:31
in very limited circumstances,
14:33
none of which are presented here.
14:36
Mr. Garcia-Medina has not satisfied
14:38
the factors presented in Williams v. Principe.
14:42
There is no clear and final decision,
14:45
on a legal issue from the Veterans Court,
14:48
and the other factors in Williams
14:50
are not satisfied either.
14:52
Mr. Garcia-Medina has not highlighted
14:55
any particular statement from the Veterans Court
14:57
that is a decision on a rule of law
14:59
or addressing the validity or interpretation
15:01
of any statute or regulation.
15:06
What the Veterans Court did
15:08
in remanding to get a more thorough statement
15:13
of the reasons and bases
15:14
from the...
15:15
The Board is certainly something
15:17
that it is authorized to do
15:20
and under 38 USC 7252 can do as appropriate.
15:27
As an able, the Court should determine
15:31
that it should not review a remand
15:33
when the Veterans Court has found
15:35
a statement of reasons and bases to be inadequate.
15:39
In that case, there was no legal issue,
15:42
therefore the Court did not have jurisdiction to consider.
15:46
Similarly, in Grantham v. Brown,
15:50
a remand for an adequate statement of reasons or bases
15:54
dealing with the applicable law and regulation
15:58
is something that the Court declined to review.
16:01
Certainly, there's no resolution of the legal issue
16:04
that would adversely affect Mr. Garcia-Medina
16:08
and, in addition,
16:11
it's simply a burden that Mr. Garcia-Medina has asserted.
16:16
It's not something that renders
16:20
the Veterans Court's decision sufficiently final
16:22
for the Court to review,
16:23
as the Court noted in Williams.
16:26
And the third...
16:26
Judge Stark
In this case, is the Board free
16:28
to reach a different decision on the remand?
16:31
Appellee Attorney (Amanda L. Tantum)
I believe that the Board is instructed
16:34
to provide more detailed reasons,
16:37
adequate reasons and bases of its statements
16:40
about VA policy at the time of the original decision in April.
16:46
I believe that the Board is instructed to provide
16:46
a more detailed rating decision in April 2003
16:49
and its statements about the change in policy
16:54
from the policy that applied in April 2003.
16:59
And if the Court...
17:01
Judge Stoll
So is that a yes or a no?
17:03
Appellee Attorney (Amanda L. Tantum)
Oh, can the Board...
17:04
The Board is instructed to provide an adequate statement of reasons and bases
17:09
related to those...
17:11
Judge Stoll
So it's not going to know if the Board changes the remand
17:15
and will differentiate it?
17:16
Absolutely.
17:16
Do you think that they agree?
17:18
Appellee Attorney (Amanda L. Tantum)
I mean, I think they...
17:20
In making an adequate statement of reasons and bases,
17:23
it perhaps could explain more thoroughly
17:26
its decision about the policy.
17:28
But I think that that's all that the Court is...
17:31
Judge Stark
So are you agreeing that there's no way
17:34
that the Veteran can win at the Board here?
17:38
All he's going to win is a better explanation
17:41
of why he loses?
17:42
Appellee Attorney (Amanda L. Tantum)
It sounds...
17:44
The Court's review of the Board's decision
17:46
was frustrated.
17:47
It failed to adequately support its determination.
17:51
So it seems like the Board will need to
17:56
just simply provide an adequate statement
17:59
for that determination, not change its determination.
18:02
But will...
18:03
Does he stand any chance of winning before the Board?
18:07
If the Board is simply explaining better the bases,
18:11
then it sounds like that is a no.
18:13
Judge Stark
I'm surprised by the answer.
18:16
I would have thought that it was implicit
18:18
when you sent something back for a better explanation
18:21
that if, upon further review,
18:23
the Board realizes it doesn't have a better explanation,
18:26
that the outcome would be different.
18:28
But you disagree with that.
18:30
Appellee Attorney (Amanda L. Tantum)
Well, I think if it's simply providing an adequate statement
18:33
of reasons and bases for its determination, then...
18:37
Judge Hughes
What happens if he goes back and looks into it
18:39
and realizes it has no basis whatsoever for its argument?
18:43
Appellee Attorney (Amanda L. Tantum)
I mean, it does sound like that...
18:45
Judge Hughes
I think that presumably there's nothing that prohibits
18:50
the Secretary from changing his mind.
18:52
Appellee Attorney (Amanda L. Tantum)
It doesn't.
18:52
That's not what I see in the Veterans Court decision.
18:54
No, that if there were no reasons or bases,
18:58
I think that's possible.
18:59
Judge Hughes
The Secretary didn't have a basis for his decision
19:01
and can't reach that decision.
19:03
Right.
19:04
Appellee Attorney (Amanda L. Tantum)
In this case, the discussion...
19:06
Judge Hughes
It sounds like this is a fairly longstanding policy,
19:10
and so there must be some reason it wasn't just described.
19:13
So it's not likely to change.
19:15
Appellee Attorney (Amanda L. Tantum)
Right.
19:16
And I agree that the way that the Board described it
19:20
as being a longstanding policy at the time of April 2003
19:23
and then a policy that was put in place in May 2016,
19:30
it seems that there's background
19:32
that simply wasn't discussed in depth.
19:34
And so that's what I think the Veterans Court
19:38
is looking for from the Board.
19:40
If the Court did review the remand order,
19:45
it should certainly affirm the Veterans Court's decision
19:49
because the Veterans Court has the power to remand as appropriate,
19:52
and it's certainly appropriate to obtain a more detailed explanation,
19:58
including for legal issues.
20:02
Judge Stark
Would it have been within the Veterans Court's authority here
20:05
to go ahead and decide the legal issue now without a remand?
20:09
Did it have that option?
20:10
Appellee Attorney (Amanda L. Tantum)
It had that option.
20:11
Judge Stark
And how do we know that it recognized it had that option?
20:17
Appellee Attorney (Amanda L. Tantum)
Well, I think it's simply by...
20:25
Judge Stark
As I understand it, your friend is arguing
20:27
that they thought they were compelled by law to remand here,
20:33
and that that's the legal decision that was made.
20:36
I assume you disagree with that.
20:38
Appellee Attorney (Amanda L. Tantum)
I disagree.
20:39
It's certainly the only discussion,
20:42
which is on pages 8 and 9 of the appendix,
20:45
is that the Court concludes that the Board provided
20:47
inadequate reasons or bases for its decision,
20:49
and there's no discussion by the Veterans Court
20:52
about its own authority to remand
20:55
or any decision on a legal issue at all.
21:03
I wanted to note that the George V. McDonough Supreme Court decision
21:10
is in line with what the Veterans Court has done here.
21:16
They're...
21:16
The idea that there is a...
21:19
That Q does not encompass a subsequent change in law
21:24
or change in interpretation of law
21:26
makes it certainly necessary to determine questions
21:31
of changes in interpretation of law.
21:34
And we believe that Mr. Garcia-Medina
21:43
has not satisfied the Williams factors
21:45
for the Court to review the non-final decision
21:50
of the Veterans Court.
21:52
The Court has no further questions.
21:55
We request that the Court decline to review
21:58
the Veterans Court's non-final order
22:00
and dismiss the appeal, or otherwise affirm.
22:03
Thank you.
22:04
Judge Hughes
Question solved.
22:10
Okay.
22:11
Thank you, Your Honor.
22:13
Appellant Attorney (Kenneth H. Dojaquez)
So I want to begin where the questioning
22:16
with the government was about the remand order itself
22:20
and just urge this Court,
22:21
Judge Hughes
can you address Judge Frost's question?
22:23
Is your argument that the Veterans Court didn't think
22:26
he could decide it,
22:27
that it wasn't allowed to decide the issue,
22:30
or just wanted to send it back?
22:33
I thought your argument wasn't that the Veterans Court
22:38
didn't know...
22:39
It wasn't that the Veterans Court didn't know
22:40
that it could decide the issue.
22:42
Your argument is the Veterans Court has to decide it
22:44
because it's a pure legal issue.
22:46
Yes, Your Honor.
22:47
Is it the second one?
22:48
Appellant Attorney (Kenneth H. Dojaquez)
It is the second one,
22:49
that they have to decide it.
22:50
Judge Hughes
You're not saying the Veterans Court was confused
22:52
about its legal authority to decide remand or not.
22:57
The Veterans Court knew it couldn't decide...
22:59
Yes, Your Honor.
23:00
It just chose not to.
23:01
Absolutely, Your Honor.
23:02
You're saying it couldn't choose not to.
23:03
Appellant Attorney (Kenneth H. Dojaquez)
Absolutely, Your Honor.
23:04
That's our position.
23:05
And if we look at Appendix 9,
23:06
the big full paragraph,
23:08
given this position,
23:09
the Court will not now address the remaining arguments
23:11
of issues raised by appellant.
23:13
And so it recognizes it could have,
23:15
and it just chose not to because,
23:17
again, on de novo review,
23:19
it assessed that it needed more explanation.
23:22
And again, we strongly urge this Court
23:25
to leave the remand order at face value,
23:28
that all the Board,
23:29
all the Court is asking or ordering from the Board
23:32
is to better explain its decision and through...
23:35
Judge Stoll
What about the last two sentences of her order?
23:38
I mean, it says,
23:39
on remand, appellant is free to submit additional argument,
23:42
including the specific arguments raised here,
23:45
and the Board must consider that.
23:46
It also says the remand is meant to entail
23:49
critical examination of the justification
23:51
for the decision,
23:52
and the Board must proceed expeditiously.
23:55
And that's pretty beneficial to you in your point.
23:58
I mean, at least it's trying, right?
24:00
Appellant Attorney (Kenneth H. Dojaquez)
Typically it is, Your Honor.
24:01
But again, this is a Q issue.
24:03
And in a clear, non-mistakable error context,
24:06
the Board only has jurisdiction
24:08
over the specific allegation of Q
24:10
raised, adjudicated by the AOJ,
24:12
and appealed to the Board.
24:14
So the argument itself,
24:15
the underlying argument does not change.
24:17
Was there a change in law such that
24:19
the 20% rating for shoulder,
24:21
or limitation of motion,
24:22
should have been applied in 2003?
24:24
That's the only argument the Board
24:26
has the jurisdiction to review.
24:29
If we present a different argument,
24:31
then it has to go,
24:33
they would have to remand that
24:34
for an AOJ determination.
24:35
Judge Stoll
I'm thinking about the specific arguments raised here.
24:37
I think they mean the evidence,
24:38
and the arguments you made
24:39
for why that legal determination is incorrect.
24:44
Appellant Attorney (Kenneth H. Dojaquez)
Yes, Your Honor.
24:44
But again, I don't,
24:46
we don't understand this to offer,
24:48
to provide anything of substance
24:50
to Mr. Garcia.
24:51
Because,
24:52
all that's telling the Board to do
24:54
is to better explain its denial.
24:56
He's gonna get another denial.
24:57
The VA is getting steadfast in its position
25:00
that there is some longstanding policy
25:02
that to date,
25:04
in dozens of cases so far,
25:06
both at the Veterans Court and in the Board,
25:08
they have not been able to produce
25:09
a single shred of evidence to support this.
25:13
Judge Stark
Can I just ask you,
25:14
following up on Judge Cheese,
25:16
you wrote at Page 1 of the Blueberry,
25:19
this Court has jurisdiction
25:21
section of the appeal because you're challenging the veterans court's legal ruling that it may not
25:27
interpret the law unless or until the board provides an explanation for its legal ruling
25:32
is that in fact your position and if so where did the veterans court rule that it may not
25:38
interpret the law until the board provides an explanation that that is your honor and that's
25:44
Appellant Attorney (Kenneth H. Dojaquez)
you know it's it's a bit a bit of hyperbole um but again i think that again when we go back to
25:50
appendix eight to nine that they are unable to that the board failed to offer if we don't find
25:56
Judge Stark
the board if we don't find the court of veterans claims making that legal determination at pages
26:01
eight and nine would you acknowledge that you don't meet the williams test um well i know your
26:10
Appellant Attorney (Kenneth H. Dojaquez)
honor because i think when you look at and when you look at the the the more fleshed out argument
26:18
in our blue brief um we are essentially assessing that he's entitled to a ruling
26:22
today
26:22
on the issue uh as it was printed presented to the veterans court without having to
26:27
wait for another denial from the board um with just a better explanation thank you