Okay. The next argued case is number 157035, Andrews against the Secretary of Veterans Affairs. Mr. Carpenter. May the police court can Carpenter pairing on behalf of Mr. Edward Anders. The court, please, we believe that this court's February 2014 decision was clear and unambiguous in its hold. I sure didn't think I'd see you back here on this particular case. Well, I should have neither, Your Honor. I confess to not understanding the ruling below. I believe I understood the ruling here, but apparently... Oh, if you can move below, had the flavor of the Italian one of these, which luck would not appear on the record. Oh. That was certainly my impression, Your Honor
. And I'm here to answer any questions. I have to see you spellbound before, but apparently... You succeeded. I think we've made our position perfectly clear in the briefs. I'm not sure what else it is I can say other than the fact that... I believe... I'm just curious, one of the things you didn't move for here, and of course, all motions are always welcome, is to have this case reassigned with a different judge on remand. Do you think that might be necessary? Do you think that your client can continue to get all of the proper adjudication below, if it goes back to the same judge? I just put you in an awful position. Sorry
. Yes. But I'm not really sure that... Did you say we're not making that motion, and that's okay? Well, I'm not sure it's necessary, Your Honor. I believe that this was a... A complete misreading of what this court did, and it was an effort to define a resolution other than the one that was intended by this court. And I believe that this court reaffirms its earlier decision that there isn't going to be a problem below. It's not my place, but I feel like it was the non-presidential holding that apparently suggested that there was... Just had a curiosity. Can you enlighten me? Sometimes we get one judge decisions out of the court of Veterans Appeals, and other times we get multi-judge decisions out of the court of Veterans Appeals
. And in the first paragraph of this one, he concludes that this is only worthy of a one-judge decision. And yet, I find it curious, as clear from his opinion, he doesn't take lightly refusal to follow a mandate of the court. And I guess what are the standards by which the Veterans Court decides what ought to be a one-judge versus a multi-judge decision? Because I would think the refusal, the overt explicit refusal to follow the mandate of the... A penalty for... It could be a court. Might be one of those grounds that is not of such mundane common general resolution that it might have warranted more than a one-judge resolution below. The court below, in a case called Frankl versus Duinsky, in the very early days of that court, decided what would distinguish between a single judge decision and a panel decision. I knew you would have the answer for me, Mr. Carpenter. So what does that case say? Well, it sets out, I believe, six different criteria that new law is being made, that the cases an issue of relative simplicity, and those are the kinds of.
.. So is it relatively simple to acknowledge and expressly refuse to apply the mandate of the appellate court? Does that define... It doesn't define simple case in my line. Well, no, Your Honor, but it does seem to me quite candidly that unfortunately another order from this court is going to be necessary to affirm what you did the last time, and that Mr. Andrews has been placed at another lengthy delay in getting a very clear question that this court directed the board to address. And I don't know how the board could possibly address it, pursuant to this court's order, if the case was affirmed. I'm going to ask you a very strange question now, but is there any way we can result this case entirely right now on appeal? And the reason I ask is because what our prior decision expressly said is, the record in 1983 seemed far stronger for TDIU than the record did in 1991 when the government granted. The government acknowledged that at the end of their brief and did not dispute the state of the record vis-a-vis those two positions. So if I am to conclude this is a pending and unadjudicated claim that was never implicitly denied, if I were to conclude that again, then is there any reason to send this back down or isn't the state of this record undisputed such that if TDIU were warranted in 1991, it's also unequivocally under the undisputed facts of record warranted for 83. I'm not looking to make any fact findings. I would never do that as an appellate judge, but if the record is completely undisputed, if the government itself has adjudicated the worthiness of this veteran for TDIU, is there any reason to even send it back anywhere or maybe I could send it back for accounting, that's what I'm saying. Well, it would be a direction to the lower court to direct the board to instruct the secretary to make the award based upon the undisputed facts in the record and to change the current effective date from 1981 to 1983 or the date that that claim in the 1983 decision was made. And no, I do not see any reason
. And I felt that that was the resolution. And I frankly was a bit blindsided below when there was requests for supplemental briefing on issues that did not seem to me to have any relevance to the disposition that was made by this court. And that this court had in fact made a clear legal determination both on the record in the oral argument and in this court's decision. And I, Mr. Anders would be grateful to receive that just to bring this to the end. This is the third time Mr. Andrews is before this court trying to get relief. And the error in the first case was mine. I did not properly plead it. I attempted to plead it before the court for the first time, the first iteration of this case. This court clarified that that has been precedent in this court for more than a decade. We're now back here for the third time simply trying to get the benefit of what we thought we received when we were here last time. Thank you, Mr. Carpenter. Mr
. Rose. May I please the court? I'd like to start by bringing the discussion back. Carpenter wrong about one fact. Isn't this actually the fourth time this case has been before us? I believe that is correct. It's actually the fourth time. And I think that there are more than one fact. I thought maybe it's the fourth time. My every all the law clerks are not in yes. But speaking of facts that Mr. In deed and there are many ways in which we're going to discuss errors that Mr. Andrews through his council may have created the confusion that brings us here today. And the appropriate starting point for today's discussion is the 2005 Q motion which was drafted by Mr. Carpenter. It was not a pro-state filing. And the reason that that's important is because this is Q
. I thought the appropriate point of discussion would be the lower courts refusal to follow the mandate of the court. Didn't we order him to remand this case to the VA? Isn't that what the opinion was quite short? I don't think I'm misremembering it. The opinion was very short. And while it did contain a remand order, it is the obligation of the veterans court like every court. And of course this is a fundamental principle of jurisdiction. And if this is something that the Supreme Court has addressed for example in insurance corporation of Ireland in 1982. But long before that in 1884 in the Mansfield decision that before a court can undertake an action, it must assure itself that it has jurisdiction to do so. And here there was no jurisdiction. Again, this is a Q motion. It's a specific type of error. It's a collateral attack on the final judgment. And as such, there's a heightened pleading requirement. The Q motion was that the agency failed to adjudicate. Isn't that correct? Fail to consider TDIU correct. Fail to adjudicate the TDIU claim
. And we ordered the agency to do exactly that. I don't understand the confusion. We ordered them to do exactly what Mr. Carpenter alleged they failed to do. Because we concluded they hadn't done it. So what the does connect your honor is that this court didn't have the authority to make that a remand order. And I'm going to explain to you why the reason is that the role of interpreting a claim is a fact finding the termination. And this is well established. I'm going to have to move the time out. Everybody agrees. The claim here was failed. The Q claim raised by Mr. Carpenter was that the agency failed to adjudicate the implicit TDIU claim correct. That was recognized at every level. And the arrow starting with the arrow, the response was it was implicitly denied
. And that is entirely consistent with this court's line of cases and gesture tell and add them. Okay, that that that's actually incorrect. This claim pendant for 15 years before the first time the government alleged it was implicitly denied. This claim discase most of the time the government said the claim was never implicitly raised. And the court told us that we were both wrong. And that's understandable because Robertson had not been decided by that time. And the government was consistently as it did in Robertson arguing for a very, very, very high level of particularity to recognize any sort of claim being made by the veteran. So I'm not faulting the government to be clear because it was operating under a different legal standard than we clarified in Robertson at the time it made those determinations. Because if you are going to argue to me that you recognize an implicit claim pre-Robertson, I actually have the government's brief right here in front of me in Robertson. And the government explains quite clearly what it thinks must exist in the record for there to be an implicit claim that it would have any obligation to adjudicate. Would you like me to turn to that and read it to you? Your Honor, I think that we're now conflating whether or not an implicitly raised claim that has been recognized by the government as such can be implicitly denied. And those are two separate, two separate principles. An implicitly raised claim puts the VA on notice of what it must adjudicate. An implicit denial provides notice to the veteran of what has been adjudicated. And as the veteran's court and ingram address, when a veteran claims you not see the absurdity, if the government's position for more than a decade is you didn't raise a claim and thus there was no action for us to take
. Just soon, that was the government's position for a decade. And then they do this about face after Robertson when we make it clear that yes, in fact there actually was a claim here because we make it clear what the implicit claim standard is. Now the government says, oh boy, all right, well maybe there was implicit claim here but there was, well back then we implicitly denied it. I mean, is that not sort of the worst kind of hindsight reconstruction of what actually occurred? It sure feels that way to me. The government must of course recalibrate its arguments in response to presidential orders from this court, but I want to get back to presidential orders of this court. That determine the outcome of this case and that is the veteran's court's decision should be affirmed. And that is that a Q motion that is written by council as this one was a very sophisticated council in VA benefits law, that there is no liberal construction of that claim. Every step of the way the VA has understood Mr. Andrews' Q allegation to be limited to and Mr. Andrews agrees with this and has briefed page one that the VA failed to adjudicate KDIU and as Judge Dye. That's right and that's why in the last order we amended to the veterans court and ordered them to remean to the VA to adjudicate exactly that claim. But the court can't disconnect. I really don't get what you're saying. The disconnect is, as this court held in Andrews in 2005, a Q motion council cannot allege before the veterans court a new Q theory. If it hasn't been alleged before the RO or the board, it is waived at the veterans court. But you keep telling me the Q theory that Mr. Carpenter raised was they failed to adjudicate. We agreed and said go back and adjudicate. Where is the lack of jurisdiction in that? That was the precise Q claim he raised. They failed to adjudicate this. And we agreed and said yes, they failed to adjudicate it. Go back and adjudicate it. Actually, Your Honor, I don't think that with all due respect, you can read the 2014 decision as stating, as closely as you are today, that those points. The first point that it is with that is that it sounds how it was meant. Then what is your response to that? If that fails, because I understand what you're saying. You're saying that Mr. Carpenter didn't raise a clear, uninstalleable error argument with respect to adjudication that the board didn't properly adjudicate the issue. But what we're saying to you now is the decision in 2014 found that the board did not adjudicate the issue and now needs to do so. So what do you have a response to that? I do, Your Honor, and that is that that binding is a factual finding that this court is not empowered to make Congress limited this court's ability to make factual findings. And this court has held repeatedly in Moody and others that determining what claims are raised by a Q-motion and other pleadings is a factual matter
. But you keep telling me the Q theory that Mr. Carpenter raised was they failed to adjudicate. We agreed and said go back and adjudicate. Where is the lack of jurisdiction in that? That was the precise Q claim he raised. They failed to adjudicate this. And we agreed and said yes, they failed to adjudicate it. Go back and adjudicate it. Actually, Your Honor, I don't think that with all due respect, you can read the 2014 decision as stating, as closely as you are today, that those points. The first point that it is with that is that it sounds how it was meant. Then what is your response to that? If that fails, because I understand what you're saying. You're saying that Mr. Carpenter didn't raise a clear, uninstalleable error argument with respect to adjudication that the board didn't properly adjudicate the issue. But what we're saying to you now is the decision in 2014 found that the board did not adjudicate the issue and now needs to do so. So what do you have a response to that? I do, Your Honor, and that is that that binding is a factual finding that this court is not empowered to make Congress limited this court's ability to make factual findings. And this court has held repeatedly in Moody and others that determining what claims are raised by a Q-motion and other pleadings is a factual matter. So what the court has attempted to do in 2014? There's no disagreement about what Q-clam was raised. What Q-clam do you think was raised in the 2004 Q paper that Mr. Carpenter submitted, it's at J-A-30? What do you think it is? That there was a failure to consider T-D-A-U. But, and this also is relevant to a case that my colleague, Mr. Hockey, argued yesterday, Evans, the McDonald, and Mr. Andrews also states this that there's two separate Q-assertions that we're talking about here. There's a Q-assertion that the RO failed to consider something, and there's a Q-assertion that in not awarding T-D-A-U, the 1983 RO got it wrong and that error was undefaitable. And Q is a heightened standard that must be pled with specificity, and so the burden is on Mr. Andrews, ask the veteran to explain to the RO in the first instance here, because this is an RO decision that's being sought revision, how the evidence of record in 1983, undividably established that he was entitled to T-D-A-U. If he hasn't on a judicated claim, if it was never implicitly denied, why does he have to establish that the evidence of record unequivocally entitles him to that? Why isn't he entitled to an adjudication in the first instance under the proponderance of evidence standard that typically apply? Because you're under this is not a live appeal, and the court has established that when T-D-A-U is not awarded and no direct appeal is sought as here, that the proper avenue is Q, and it didn't decide that the proper avenue was Q, so that it could blow open Q, which is, of course, very limited to an unmistakable, clear and unmistakable error. It did so because it recognized that the court has this court. Q is something that has been developed by statute, right? I mean, it's a statutory section. Correct. It allows the veteran to bring to us a problem in the process below, so why can't the problem be their failure to adjudicate my claim? Because that is inconsistent with the precedent of this court, including that I thought that I put Judge Dijk's second Andrew opinion actually expressly said, if you want to challenge, because you argued, you all argued, by the way, that this case was still arguably pending and unadjudicated, and we had no jurisdiction over it for that reason. And what Judge Dijk said is, no, you can go back and file a Q claim directly to just this, their failure to adjudicate
. So what the court has attempted to do in 2014? There's no disagreement about what Q-clam was raised. What Q-clam do you think was raised in the 2004 Q paper that Mr. Carpenter submitted, it's at J-A-30? What do you think it is? That there was a failure to consider T-D-A-U. But, and this also is relevant to a case that my colleague, Mr. Hockey, argued yesterday, Evans, the McDonald, and Mr. Andrews also states this that there's two separate Q-assertions that we're talking about here. There's a Q-assertion that the RO failed to consider something, and there's a Q-assertion that in not awarding T-D-A-U, the 1983 RO got it wrong and that error was undefaitable. And Q is a heightened standard that must be pled with specificity, and so the burden is on Mr. Andrews, ask the veteran to explain to the RO in the first instance here, because this is an RO decision that's being sought revision, how the evidence of record in 1983, undividably established that he was entitled to T-D-A-U. If he hasn't on a judicated claim, if it was never implicitly denied, why does he have to establish that the evidence of record unequivocally entitles him to that? Why isn't he entitled to an adjudication in the first instance under the proponderance of evidence standard that typically apply? Because you're under this is not a live appeal, and the court has established that when T-D-A-U is not awarded and no direct appeal is sought as here, that the proper avenue is Q, and it didn't decide that the proper avenue was Q, so that it could blow open Q, which is, of course, very limited to an unmistakable, clear and unmistakable error. It did so because it recognized that the court has this court. Q is something that has been developed by statute, right? I mean, it's a statutory section. Correct. It allows the veteran to bring to us a problem in the process below, so why can't the problem be their failure to adjudicate my claim? Because that is inconsistent with the precedent of this court, including that I thought that I put Judge Dijk's second Andrew opinion actually expressly said, if you want to challenge, because you argued, you all argued, by the way, that this case was still arguably pending and unadjudicated, and we had no jurisdiction over it for that reason. And what Judge Dijk said is, no, you can go back and file a Q claim directly to just this, their failure to adjudicate. And then we would have jurisdiction over it. So he sort of acquiesced in the government's argument that we didn't have jurisdiction to decide that issue right then, but the proper vehicle, so I mean, I have to feel a little sorry from Mr. Carpenter, because it seems to me he did exactly at every stage of this process what we told him to do to properly put this issue before the court. And now your argument is that still didn't properly put the issue before the court. That's right, and the reason is that as soon as Mr. Andrews received his 2006 RO decision, informing him that the TDIU claim had been implicitly denied in the 1983 decision, which is entirely consistent with this court's implicit denial precedent, including in Adams, which I believe it was Adams that explicitly favorably spoke of the veterans court's decision in Ingram that lays out very clearly why a veteran who seeks a 100% or a maximum possible benefit, or believes he's raised a claim for TDIU and receives a decision less than 100% is on notice that he did not get TDIU, because TDIU is, of course, 100% rating. At that point in 2006, when he received the RO's decision that said, you said your claim is that there was no adjudication. Our response to your Q motion is that this claim was implicitly denied. At that point, it was incumbent upon Mr. Andrews if he wanted to challenge the mayor's determination of the denial of his TDIU claim to file a new Q claim, a specific Q claim, because as this court has held in Andre, when we're talking about an RO's decision, isn't the implicit denial of a creature of judicial creation? I mean, it doesn't exist in a statute or in the reds by the secretary. That's correct. So as such, wouldn't it be perfectly reasonable for us to say when the government argues, and this would be quite a narrow holding, and I'm not sure it's even should be this narrow, but wouldn't it be perfectly reasonable for us to say, when the government has argued for a long period of time, that there was no claim and thus nothing for us to have had to take action on, that they are thereby not allowed to rely on the traditionally created implicit denial role thereafter to say, okay, okay, if it turns out we were wrong about the fact that there was a claim, well, then we implicitly denied it. Isn't wouldn't it at a minimum be appropriate since it is a creation of judicial manufacture for that limit to be placed upon that rule of judicial creation? I believe the reason it wouldn't be appropriate is because this court's presidential holdings would preclude such such an outcome, which in Andre, and this is important because collateral stop-al is a benefit to a veteran. In most cases, a civil litigant doesn't have the right to reopen a final. No, you said it would be contrary to rule I just articulated would be contrary to precedent of this court
. And then we would have jurisdiction over it. So he sort of acquiesced in the government's argument that we didn't have jurisdiction to decide that issue right then, but the proper vehicle, so I mean, I have to feel a little sorry from Mr. Carpenter, because it seems to me he did exactly at every stage of this process what we told him to do to properly put this issue before the court. And now your argument is that still didn't properly put the issue before the court. That's right, and the reason is that as soon as Mr. Andrews received his 2006 RO decision, informing him that the TDIU claim had been implicitly denied in the 1983 decision, which is entirely consistent with this court's implicit denial precedent, including in Adams, which I believe it was Adams that explicitly favorably spoke of the veterans court's decision in Ingram that lays out very clearly why a veteran who seeks a 100% or a maximum possible benefit, or believes he's raised a claim for TDIU and receives a decision less than 100% is on notice that he did not get TDIU, because TDIU is, of course, 100% rating. At that point in 2006, when he received the RO's decision that said, you said your claim is that there was no adjudication. Our response to your Q motion is that this claim was implicitly denied. At that point, it was incumbent upon Mr. Andrews if he wanted to challenge the mayor's determination of the denial of his TDIU claim to file a new Q claim, a specific Q claim, because as this court has held in Andre, when we're talking about an RO's decision, isn't the implicit denial of a creature of judicial creation? I mean, it doesn't exist in a statute or in the reds by the secretary. That's correct. So as such, wouldn't it be perfectly reasonable for us to say when the government argues, and this would be quite a narrow holding, and I'm not sure it's even should be this narrow, but wouldn't it be perfectly reasonable for us to say, when the government has argued for a long period of time, that there was no claim and thus nothing for us to have had to take action on, that they are thereby not allowed to rely on the traditionally created implicit denial role thereafter to say, okay, okay, if it turns out we were wrong about the fact that there was a claim, well, then we implicitly denied it. Isn't wouldn't it at a minimum be appropriate since it is a creation of judicial manufacture for that limit to be placed upon that rule of judicial creation? I believe the reason it wouldn't be appropriate is because this court's presidential holdings would preclude such such an outcome, which in Andre, and this is important because collateral stop-al is a benefit to a veteran. In most cases, a civil litigant doesn't have the right to reopen a final. No, you said it would be contrary to rule I just articulated would be contrary to precedent of this court. What precedent would that be contrary to? It would be contrary to Roberson because Roberson says that an, an, an, an, an, an, an, an, a TDIU claim that is not expressly adjudicated is not properly appealed as a, as an unjudicated claim, but is properly appealed for Q. Excuse me, it's properly raised for Q. Q, of course, is not an appeal. And the reason that that's important, Your Honor, is that Q by its very nature assumes that there has been a final decision. So you can't challenge the VA's adjudication of something through Q unless we first start from the point as this court has, has explained, that Q is a collateral attack on a final judgment. So that assumes that there has been a judgment. And when you get to that framework, combined with the court's holding that the failure to raise a Q theory before the board of the RO is fatal to the, to the attempt to raise that before the veterans court, and, and that the veterans court in fact does not have jurisdiction over such claims, the only issue here is why Mr. Andrews, who is represented through very sophisticated counsel, hasn't filed the Q claim he now wants adjudicated, which is about the merits of his, and I, you did not have a question that I asked Mr. Carbender near the end, which is, how, how, if it all possible, can we just make this case over? You can affirm, and Mr. Armin is not happening. So how, if it all possible, can we make this case over, what I mean is, the government didn't dispute the passage in the prior decision, which says the record in 83 was unequivocally stronger for this veteran of unemployability than the record in 91, the government granted. The government never explicitly at any point denied TDIU, and when they actually considered it for the first time in 1991, they granted it, and that record was weaker than the record they had performed in 83. So the government didn't dispute that on appeal. It actually raised it and quoted the whole thing at the end of your brief, but never disputed any of that. Never once said that's not true
. What precedent would that be contrary to? It would be contrary to Roberson because Roberson says that an, an, an, an, an, an, an, an, a TDIU claim that is not expressly adjudicated is not properly appealed as a, as an unjudicated claim, but is properly appealed for Q. Excuse me, it's properly raised for Q. Q, of course, is not an appeal. And the reason that that's important, Your Honor, is that Q by its very nature assumes that there has been a final decision. So you can't challenge the VA's adjudication of something through Q unless we first start from the point as this court has, has explained, that Q is a collateral attack on a final judgment. So that assumes that there has been a judgment. And when you get to that framework, combined with the court's holding that the failure to raise a Q theory before the board of the RO is fatal to the, to the attempt to raise that before the veterans court, and, and that the veterans court in fact does not have jurisdiction over such claims, the only issue here is why Mr. Andrews, who is represented through very sophisticated counsel, hasn't filed the Q claim he now wants adjudicated, which is about the merits of his, and I, you did not have a question that I asked Mr. Carbender near the end, which is, how, how, if it all possible, can we just make this case over? You can affirm, and Mr. Armin is not happening. So how, if it all possible, can we make this case over, what I mean is, the government didn't dispute the passage in the prior decision, which says the record in 83 was unequivocally stronger for this veteran of unemployability than the record in 91, the government granted. The government never explicitly at any point denied TDIU, and when they actually considered it for the first time in 1991, they granted it, and that record was weaker than the record they had performed in 83. So the government didn't dispute that on appeal. It actually raised it and quoted the whole thing at the end of your brief, but never disputed any of that. Never once said that's not true. There are still factual issues in play, you acquiesced in it. So can I accept that as a government's admission? Respectfully on her, you may not. The reason is that we have raised that it would be difficult, if not impossible, for, no, excuse me, let me, let me start over. It is an open question whether the 1983 record, un-debatably, establishes TDIU and the, I do not understand that issue, you raised. I'm not going to just kind of railroad over you on that issue, sorry. But suppose that I disagree with you on the unsubstantability standard, and I think the proponents of the evidence standard applies because this is an uninducated claim. Under that standard, isn't it fair to say that government hasn't disputed that the facts in 83 were strong, or is in the facts in 91? I don't think that is fair, and I think in part you can look back to our 2003 pleadings, specifically put note three on page eight, where we talk about evidence that existed in the record that may have contributed to the ARO's consideration about whether or not employability was an issue. And that included a back condition that Mr. Andrews was a pre-existing condition, and he has not been awarded service connection for it. He sought service connection for it, and that was denied prior to his 1983 claim. And in addition, there is evidence in the 1983 record of alcohol and substance abuse that was not at issue in 1994. And while these documents, frankly, aren't relevant or material to the appeal that is on a narrow issue before us, whether or not the veterans court correctly held, that it does not have jurisdiction to entertain a cue motion that was not raised by council to the board or the RO. But these factual matters are out there. There is dispute. And of course, if alcohol and substance abuse is not secondary to a service connected condition, and here there's been no finding that it is, then that cannot contribute to the basis of compensation
. There are still factual issues in play, you acquiesced in it. So can I accept that as a government's admission? Respectfully on her, you may not. The reason is that we have raised that it would be difficult, if not impossible, for, no, excuse me, let me, let me start over. It is an open question whether the 1983 record, un-debatably, establishes TDIU and the, I do not understand that issue, you raised. I'm not going to just kind of railroad over you on that issue, sorry. But suppose that I disagree with you on the unsubstantability standard, and I think the proponents of the evidence standard applies because this is an uninducated claim. Under that standard, isn't it fair to say that government hasn't disputed that the facts in 83 were strong, or is in the facts in 91? I don't think that is fair, and I think in part you can look back to our 2003 pleadings, specifically put note three on page eight, where we talk about evidence that existed in the record that may have contributed to the ARO's consideration about whether or not employability was an issue. And that included a back condition that Mr. Andrews was a pre-existing condition, and he has not been awarded service connection for it. He sought service connection for it, and that was denied prior to his 1983 claim. And in addition, there is evidence in the 1983 record of alcohol and substance abuse that was not at issue in 1994. And while these documents, frankly, aren't relevant or material to the appeal that is on a narrow issue before us, whether or not the veterans court correctly held, that it does not have jurisdiction to entertain a cue motion that was not raised by council to the board or the RO. But these factual matters are out there. There is dispute. And of course, if alcohol and substance abuse is not secondary to a service connected condition, and here there's been no finding that it is, then that cannot contribute to the basis of compensation. And that's under 38 USC 1110, and also this court's decision in Allen. And the question about these facts, this mix of facts, that is for the veterans, the VA to decide. And respectfully, Mr. Andrews has never put that merits determination at issue in a cue motion. And once he does that, that will be decided. At that point, the veteran, the VA, in its proper role as the fact-finder can evaluate all of the evidence, and of course, it has to be evidence that was contained in the 1983 record. And make a determination as to whether that 1983 record, undabatable, establishes TAU, and I'm not saying he may not be able to do that, he may. But he needs to follow the proper vehicle as outlined by this court in Roerson and Andre. But you have an uninducated claim. Why does he have to show undividedly? That's what I don't understand. If we have concluded that the claim was never adjudicated, why in the world are we raising the bar on the veteran in terms of this standard of proof he has to meet? Because a non-expressally adjudicated TDIU claim can only be raised through Q, and Q is a collateral attack of a final judgment. You cannot collateral attack a final judgment without a final judgment. Okay, thank you, Mr. Rose. Thank you, Your Honours
. And that's under 38 USC 1110, and also this court's decision in Allen. And the question about these facts, this mix of facts, that is for the veterans, the VA to decide. And respectfully, Mr. Andrews has never put that merits determination at issue in a cue motion. And once he does that, that will be decided. At that point, the veteran, the VA, in its proper role as the fact-finder can evaluate all of the evidence, and of course, it has to be evidence that was contained in the 1983 record. And make a determination as to whether that 1983 record, undabatable, establishes TAU, and I'm not saying he may not be able to do that, he may. But he needs to follow the proper vehicle as outlined by this court in Roerson and Andre. But you have an uninducated claim. Why does he have to show undividedly? That's what I don't understand. If we have concluded that the claim was never adjudicated, why in the world are we raising the bar on the veteran in terms of this standard of proof he has to meet? Because a non-expressally adjudicated TDIU claim can only be raised through Q, and Q is a collateral attack of a final judgment. You cannot collateral attack a final judgment without a final judgment. Okay, thank you, Mr. Rose. Thank you, Your Honours. Your Honours, I believe we have just witnessed why the doctrine of law, the case is necessary. The government did not ask for re-hearing of the 2014 decision. It didn't ask for reconsideration of the determination that was made by this court. We just spent 20 minutes relitigating the issue. And part of the problem here is that the government since this court issued the Roverson decision has done everything possible to create impediments to the implementation of that decision. And this panel I urge to write a presidential opinion that clarifies the holding in Roverson. As I understand the holding in Roverson, as I believe just more articulated to the government, the holding in Roverson is that if there is a pending claim and there is found to be a pending claim, then the veteran is entitled to have that pending claim adjudicated. The VA, in this case as a perfect example of it, has used the implicit denial rule to undermine their holding in Roverson, to use the implicit denial rule as a device because they read, I believe very narrowly, the decision in Roverson to mean that only can you pursue the theory in Roverson based upon an allegation of clear and unmistakable error. And therefore the burden is higher. I do not believe that that is the intent of Roverson in the case that was referred to by the government that was argued yesterday in Evans. The government put forth an argument that this court somehow overruled Roverson in cook. I do not believe that this court, when it went in Bonk, overruled this court's decision in Roverson and may perhaps this court needs to go in Bonk. To clarify the difference between the holding in Roverson and the difference in the holding in error, which is what in fact was overruled in cook. I urge this court to give Mr. Andrews resolution
. Your Honours, I believe we have just witnessed why the doctrine of law, the case is necessary. The government did not ask for re-hearing of the 2014 decision. It didn't ask for reconsideration of the determination that was made by this court. We just spent 20 minutes relitigating the issue. And part of the problem here is that the government since this court issued the Roverson decision has done everything possible to create impediments to the implementation of that decision. And this panel I urge to write a presidential opinion that clarifies the holding in Roverson. As I understand the holding in Roverson, as I believe just more articulated to the government, the holding in Roverson is that if there is a pending claim and there is found to be a pending claim, then the veteran is entitled to have that pending claim adjudicated. The VA, in this case as a perfect example of it, has used the implicit denial rule to undermine their holding in Roverson, to use the implicit denial rule as a device because they read, I believe very narrowly, the decision in Roverson to mean that only can you pursue the theory in Roverson based upon an allegation of clear and unmistakable error. And therefore the burden is higher. I do not believe that that is the intent of Roverson in the case that was referred to by the government that was argued yesterday in Evans. The government put forth an argument that this court somehow overruled Roverson in cook. I do not believe that this court, when it went in Bonk, overruled this court's decision in Roverson and may perhaps this court needs to go in Bonk. To clarify the difference between the holding in Roverson and the difference in the holding in error, which is what in fact was overruled in cook. I urge this court to give Mr. Andrews resolution. You have seen the hurdles that the government wants to impose. I was hoping that if the government were to lose on all of the legal points that it might acquiesce in the factual one, but we can't decide facts in the first instance. And if she's going to stand up here and dispute what the record in AG3 would have established or not, how can we do that? If I say it's an unachudicated claim, I don't get to adjudicated in the first instance. No, of course you don't, John. But that then re-instates this court's order from 2014, which directs the veterans court to direct the board to adjudicate that headline. I'm sorry, I thought you were saying you want us to give him resolution. I thought you meant, because I was kind of hoping the government might acquiesce in the facts since the facts of record are just so clear. And that might, we could, you know, maybe say it's undisputed that sort of thing, but it doesn't seem that they're willing to do that. Well, it more than a decade. But the most you seem to be able to get here if you get anything at all is to go back and have the VA adjudicated. Yes, Your Honor, because I believe that's what we're entitled to under-roverson. But as I think the argument here today has demonstrated, there is a clear misunderstanding on the part of the government and to this extent on the part of Judge Castle and the lower court as to the meaning of this court's decision in roverson. And that is what benefit is derived the veteran who is in fact able to demonstrate that the issue was presented and not adjudicated. It was reasonably raised either by the veteran or by a liberal reading of the evidence. And that determination was made, I believe, as a matter of law that Mr
. You have seen the hurdles that the government wants to impose. I was hoping that if the government were to lose on all of the legal points that it might acquiesce in the factual one, but we can't decide facts in the first instance. And if she's going to stand up here and dispute what the record in AG3 would have established or not, how can we do that? If I say it's an unachudicated claim, I don't get to adjudicated in the first instance. No, of course you don't, John. But that then re-instates this court's order from 2014, which directs the veterans court to direct the board to adjudicate that headline. I'm sorry, I thought you were saying you want us to give him resolution. I thought you meant, because I was kind of hoping the government might acquiesce in the facts since the facts of record are just so clear. And that might, we could, you know, maybe say it's undisputed that sort of thing, but it doesn't seem that they're willing to do that. Well, it more than a decade. But the most you seem to be able to get here if you get anything at all is to go back and have the VA adjudicated. Yes, Your Honor, because I believe that's what we're entitled to under-roverson. But as I think the argument here today has demonstrated, there is a clear misunderstanding on the part of the government and to this extent on the part of Judge Castle and the lower court as to the meaning of this court's decision in roverson. And that is what benefit is derived the veteran who is in fact able to demonstrate that the issue was presented and not adjudicated. It was reasonably raised either by the veteran or by a liberal reading of the evidence. And that determination was made, I believe, as a matter of law that Mr. Roberson raised the issue. That legal determination was resolved by this court last time. What this court needs to do this time is to clarify the difference between the holding in roverson and the judicially created holding of implicit denot. Lessons for the questions from the court. I appreciate your time. Thank you. Thank you, Mr. Carpenter. Thank you, Ms. Rose. The case is taken under submission. That concludes the argued cases for this morning. All right.
Okay. The next argued case is number 157035, Andrews against the Secretary of Veterans Affairs. Mr. Carpenter. May the police court can Carpenter pairing on behalf of Mr. Edward Anders. The court, please, we believe that this court's February 2014 decision was clear and unambiguous in its hold. I sure didn't think I'd see you back here on this particular case. Well, I should have neither, Your Honor. I confess to not understanding the ruling below. I believe I understood the ruling here, but apparently... Oh, if you can move below, had the flavor of the Italian one of these, which luck would not appear on the record. Oh. That was certainly my impression, Your Honor. And I'm here to answer any questions. I have to see you spellbound before, but apparently... You succeeded. I think we've made our position perfectly clear in the briefs. I'm not sure what else it is I can say other than the fact that... I believe... I'm just curious, one of the things you didn't move for here, and of course, all motions are always welcome, is to have this case reassigned with a different judge on remand. Do you think that might be necessary? Do you think that your client can continue to get all of the proper adjudication below, if it goes back to the same judge? I just put you in an awful position. Sorry. Yes. But I'm not really sure that... Did you say we're not making that motion, and that's okay? Well, I'm not sure it's necessary, Your Honor. I believe that this was a... A complete misreading of what this court did, and it was an effort to define a resolution other than the one that was intended by this court. And I believe that this court reaffirms its earlier decision that there isn't going to be a problem below. It's not my place, but I feel like it was the non-presidential holding that apparently suggested that there was... Just had a curiosity. Can you enlighten me? Sometimes we get one judge decisions out of the court of Veterans Appeals, and other times we get multi-judge decisions out of the court of Veterans Appeals. And in the first paragraph of this one, he concludes that this is only worthy of a one-judge decision. And yet, I find it curious, as clear from his opinion, he doesn't take lightly refusal to follow a mandate of the court. And I guess what are the standards by which the Veterans Court decides what ought to be a one-judge versus a multi-judge decision? Because I would think the refusal, the overt explicit refusal to follow the mandate of the... A penalty for... It could be a court. Might be one of those grounds that is not of such mundane common general resolution that it might have warranted more than a one-judge resolution below. The court below, in a case called Frankl versus Duinsky, in the very early days of that court, decided what would distinguish between a single judge decision and a panel decision. I knew you would have the answer for me, Mr. Carpenter. So what does that case say? Well, it sets out, I believe, six different criteria that new law is being made, that the cases an issue of relative simplicity, and those are the kinds of... So is it relatively simple to acknowledge and expressly refuse to apply the mandate of the appellate court? Does that define... It doesn't define simple case in my line. Well, no, Your Honor, but it does seem to me quite candidly that unfortunately another order from this court is going to be necessary to affirm what you did the last time, and that Mr. Andrews has been placed at another lengthy delay in getting a very clear question that this court directed the board to address. And I don't know how the board could possibly address it, pursuant to this court's order, if the case was affirmed. I'm going to ask you a very strange question now, but is there any way we can result this case entirely right now on appeal? And the reason I ask is because what our prior decision expressly said is, the record in 1983 seemed far stronger for TDIU than the record did in 1991 when the government granted. The government acknowledged that at the end of their brief and did not dispute the state of the record vis-a-vis those two positions. So if I am to conclude this is a pending and unadjudicated claim that was never implicitly denied, if I were to conclude that again, then is there any reason to send this back down or isn't the state of this record undisputed such that if TDIU were warranted in 1991, it's also unequivocally under the undisputed facts of record warranted for 83. I'm not looking to make any fact findings. I would never do that as an appellate judge, but if the record is completely undisputed, if the government itself has adjudicated the worthiness of this veteran for TDIU, is there any reason to even send it back anywhere or maybe I could send it back for accounting, that's what I'm saying. Well, it would be a direction to the lower court to direct the board to instruct the secretary to make the award based upon the undisputed facts in the record and to change the current effective date from 1981 to 1983 or the date that that claim in the 1983 decision was made. And no, I do not see any reason. And I felt that that was the resolution. And I frankly was a bit blindsided below when there was requests for supplemental briefing on issues that did not seem to me to have any relevance to the disposition that was made by this court. And that this court had in fact made a clear legal determination both on the record in the oral argument and in this court's decision. And I, Mr. Anders would be grateful to receive that just to bring this to the end. This is the third time Mr. Andrews is before this court trying to get relief. And the error in the first case was mine. I did not properly plead it. I attempted to plead it before the court for the first time, the first iteration of this case. This court clarified that that has been precedent in this court for more than a decade. We're now back here for the third time simply trying to get the benefit of what we thought we received when we were here last time. Thank you, Mr. Carpenter. Mr. Rose. May I please the court? I'd like to start by bringing the discussion back. Carpenter wrong about one fact. Isn't this actually the fourth time this case has been before us? I believe that is correct. It's actually the fourth time. And I think that there are more than one fact. I thought maybe it's the fourth time. My every all the law clerks are not in yes. But speaking of facts that Mr. In deed and there are many ways in which we're going to discuss errors that Mr. Andrews through his council may have created the confusion that brings us here today. And the appropriate starting point for today's discussion is the 2005 Q motion which was drafted by Mr. Carpenter. It was not a pro-state filing. And the reason that that's important is because this is Q. I thought the appropriate point of discussion would be the lower courts refusal to follow the mandate of the court. Didn't we order him to remand this case to the VA? Isn't that what the opinion was quite short? I don't think I'm misremembering it. The opinion was very short. And while it did contain a remand order, it is the obligation of the veterans court like every court. And of course this is a fundamental principle of jurisdiction. And if this is something that the Supreme Court has addressed for example in insurance corporation of Ireland in 1982. But long before that in 1884 in the Mansfield decision that before a court can undertake an action, it must assure itself that it has jurisdiction to do so. And here there was no jurisdiction. Again, this is a Q motion. It's a specific type of error. It's a collateral attack on the final judgment. And as such, there's a heightened pleading requirement. The Q motion was that the agency failed to adjudicate. Isn't that correct? Fail to consider TDIU correct. Fail to adjudicate the TDIU claim. And we ordered the agency to do exactly that. I don't understand the confusion. We ordered them to do exactly what Mr. Carpenter alleged they failed to do. Because we concluded they hadn't done it. So what the does connect your honor is that this court didn't have the authority to make that a remand order. And I'm going to explain to you why the reason is that the role of interpreting a claim is a fact finding the termination. And this is well established. I'm going to have to move the time out. Everybody agrees. The claim here was failed. The Q claim raised by Mr. Carpenter was that the agency failed to adjudicate the implicit TDIU claim correct. That was recognized at every level. And the arrow starting with the arrow, the response was it was implicitly denied. And that is entirely consistent with this court's line of cases and gesture tell and add them. Okay, that that that's actually incorrect. This claim pendant for 15 years before the first time the government alleged it was implicitly denied. This claim discase most of the time the government said the claim was never implicitly raised. And the court told us that we were both wrong. And that's understandable because Robertson had not been decided by that time. And the government was consistently as it did in Robertson arguing for a very, very, very high level of particularity to recognize any sort of claim being made by the veteran. So I'm not faulting the government to be clear because it was operating under a different legal standard than we clarified in Robertson at the time it made those determinations. Because if you are going to argue to me that you recognize an implicit claim pre-Robertson, I actually have the government's brief right here in front of me in Robertson. And the government explains quite clearly what it thinks must exist in the record for there to be an implicit claim that it would have any obligation to adjudicate. Would you like me to turn to that and read it to you? Your Honor, I think that we're now conflating whether or not an implicitly raised claim that has been recognized by the government as such can be implicitly denied. And those are two separate, two separate principles. An implicitly raised claim puts the VA on notice of what it must adjudicate. An implicit denial provides notice to the veteran of what has been adjudicated. And as the veteran's court and ingram address, when a veteran claims you not see the absurdity, if the government's position for more than a decade is you didn't raise a claim and thus there was no action for us to take. Just soon, that was the government's position for a decade. And then they do this about face after Robertson when we make it clear that yes, in fact there actually was a claim here because we make it clear what the implicit claim standard is. Now the government says, oh boy, all right, well maybe there was implicit claim here but there was, well back then we implicitly denied it. I mean, is that not sort of the worst kind of hindsight reconstruction of what actually occurred? It sure feels that way to me. The government must of course recalibrate its arguments in response to presidential orders from this court, but I want to get back to presidential orders of this court. That determine the outcome of this case and that is the veteran's court's decision should be affirmed. And that is that a Q motion that is written by council as this one was a very sophisticated council in VA benefits law, that there is no liberal construction of that claim. Every step of the way the VA has understood Mr. Andrews' Q allegation to be limited to and Mr. Andrews agrees with this and has briefed page one that the VA failed to adjudicate KDIU and as Judge Dye. That's right and that's why in the last order we amended to the veterans court and ordered them to remean to the VA to adjudicate exactly that claim. But the court can't disconnect. I really don't get what you're saying. The disconnect is, as this court held in Andrews in 2005, a Q motion council cannot allege before the veterans court a new Q theory. If it hasn't been alleged before the RO or the board, it is waived at the veterans court. But you keep telling me the Q theory that Mr. Carpenter raised was they failed to adjudicate. We agreed and said go back and adjudicate. Where is the lack of jurisdiction in that? That was the precise Q claim he raised. They failed to adjudicate this. And we agreed and said yes, they failed to adjudicate it. Go back and adjudicate it. Actually, Your Honor, I don't think that with all due respect, you can read the 2014 decision as stating, as closely as you are today, that those points. The first point that it is with that is that it sounds how it was meant. Then what is your response to that? If that fails, because I understand what you're saying. You're saying that Mr. Carpenter didn't raise a clear, uninstalleable error argument with respect to adjudication that the board didn't properly adjudicate the issue. But what we're saying to you now is the decision in 2014 found that the board did not adjudicate the issue and now needs to do so. So what do you have a response to that? I do, Your Honor, and that is that that binding is a factual finding that this court is not empowered to make Congress limited this court's ability to make factual findings. And this court has held repeatedly in Moody and others that determining what claims are raised by a Q-motion and other pleadings is a factual matter. So what the court has attempted to do in 2014? There's no disagreement about what Q-clam was raised. What Q-clam do you think was raised in the 2004 Q paper that Mr. Carpenter submitted, it's at J-A-30? What do you think it is? That there was a failure to consider T-D-A-U. But, and this also is relevant to a case that my colleague, Mr. Hockey, argued yesterday, Evans, the McDonald, and Mr. Andrews also states this that there's two separate Q-assertions that we're talking about here. There's a Q-assertion that the RO failed to consider something, and there's a Q-assertion that in not awarding T-D-A-U, the 1983 RO got it wrong and that error was undefaitable. And Q is a heightened standard that must be pled with specificity, and so the burden is on Mr. Andrews, ask the veteran to explain to the RO in the first instance here, because this is an RO decision that's being sought revision, how the evidence of record in 1983, undividably established that he was entitled to T-D-A-U. If he hasn't on a judicated claim, if it was never implicitly denied, why does he have to establish that the evidence of record unequivocally entitles him to that? Why isn't he entitled to an adjudication in the first instance under the proponderance of evidence standard that typically apply? Because you're under this is not a live appeal, and the court has established that when T-D-A-U is not awarded and no direct appeal is sought as here, that the proper avenue is Q, and it didn't decide that the proper avenue was Q, so that it could blow open Q, which is, of course, very limited to an unmistakable, clear and unmistakable error. It did so because it recognized that the court has this court. Q is something that has been developed by statute, right? I mean, it's a statutory section. Correct. It allows the veteran to bring to us a problem in the process below, so why can't the problem be their failure to adjudicate my claim? Because that is inconsistent with the precedent of this court, including that I thought that I put Judge Dijk's second Andrew opinion actually expressly said, if you want to challenge, because you argued, you all argued, by the way, that this case was still arguably pending and unadjudicated, and we had no jurisdiction over it for that reason. And what Judge Dijk said is, no, you can go back and file a Q claim directly to just this, their failure to adjudicate. And then we would have jurisdiction over it. So he sort of acquiesced in the government's argument that we didn't have jurisdiction to decide that issue right then, but the proper vehicle, so I mean, I have to feel a little sorry from Mr. Carpenter, because it seems to me he did exactly at every stage of this process what we told him to do to properly put this issue before the court. And now your argument is that still didn't properly put the issue before the court. That's right, and the reason is that as soon as Mr. Andrews received his 2006 RO decision, informing him that the TDIU claim had been implicitly denied in the 1983 decision, which is entirely consistent with this court's implicit denial precedent, including in Adams, which I believe it was Adams that explicitly favorably spoke of the veterans court's decision in Ingram that lays out very clearly why a veteran who seeks a 100% or a maximum possible benefit, or believes he's raised a claim for TDIU and receives a decision less than 100% is on notice that he did not get TDIU, because TDIU is, of course, 100% rating. At that point in 2006, when he received the RO's decision that said, you said your claim is that there was no adjudication. Our response to your Q motion is that this claim was implicitly denied. At that point, it was incumbent upon Mr. Andrews if he wanted to challenge the mayor's determination of the denial of his TDIU claim to file a new Q claim, a specific Q claim, because as this court has held in Andre, when we're talking about an RO's decision, isn't the implicit denial of a creature of judicial creation? I mean, it doesn't exist in a statute or in the reds by the secretary. That's correct. So as such, wouldn't it be perfectly reasonable for us to say when the government argues, and this would be quite a narrow holding, and I'm not sure it's even should be this narrow, but wouldn't it be perfectly reasonable for us to say, when the government has argued for a long period of time, that there was no claim and thus nothing for us to have had to take action on, that they are thereby not allowed to rely on the traditionally created implicit denial role thereafter to say, okay, okay, if it turns out we were wrong about the fact that there was a claim, well, then we implicitly denied it. Isn't wouldn't it at a minimum be appropriate since it is a creation of judicial manufacture for that limit to be placed upon that rule of judicial creation? I believe the reason it wouldn't be appropriate is because this court's presidential holdings would preclude such such an outcome, which in Andre, and this is important because collateral stop-al is a benefit to a veteran. In most cases, a civil litigant doesn't have the right to reopen a final. No, you said it would be contrary to rule I just articulated would be contrary to precedent of this court. What precedent would that be contrary to? It would be contrary to Roberson because Roberson says that an, an, an, an, an, an, an, an, a TDIU claim that is not expressly adjudicated is not properly appealed as a, as an unjudicated claim, but is properly appealed for Q. Excuse me, it's properly raised for Q. Q, of course, is not an appeal. And the reason that that's important, Your Honor, is that Q by its very nature assumes that there has been a final decision. So you can't challenge the VA's adjudication of something through Q unless we first start from the point as this court has, has explained, that Q is a collateral attack on a final judgment. So that assumes that there has been a judgment. And when you get to that framework, combined with the court's holding that the failure to raise a Q theory before the board of the RO is fatal to the, to the attempt to raise that before the veterans court, and, and that the veterans court in fact does not have jurisdiction over such claims, the only issue here is why Mr. Andrews, who is represented through very sophisticated counsel, hasn't filed the Q claim he now wants adjudicated, which is about the merits of his, and I, you did not have a question that I asked Mr. Carbender near the end, which is, how, how, if it all possible, can we just make this case over? You can affirm, and Mr. Armin is not happening. So how, if it all possible, can we make this case over, what I mean is, the government didn't dispute the passage in the prior decision, which says the record in 83 was unequivocally stronger for this veteran of unemployability than the record in 91, the government granted. The government never explicitly at any point denied TDIU, and when they actually considered it for the first time in 1991, they granted it, and that record was weaker than the record they had performed in 83. So the government didn't dispute that on appeal. It actually raised it and quoted the whole thing at the end of your brief, but never disputed any of that. Never once said that's not true. There are still factual issues in play, you acquiesced in it. So can I accept that as a government's admission? Respectfully on her, you may not. The reason is that we have raised that it would be difficult, if not impossible, for, no, excuse me, let me, let me start over. It is an open question whether the 1983 record, un-debatably, establishes TDIU and the, I do not understand that issue, you raised. I'm not going to just kind of railroad over you on that issue, sorry. But suppose that I disagree with you on the unsubstantability standard, and I think the proponents of the evidence standard applies because this is an uninducated claim. Under that standard, isn't it fair to say that government hasn't disputed that the facts in 83 were strong, or is in the facts in 91? I don't think that is fair, and I think in part you can look back to our 2003 pleadings, specifically put note three on page eight, where we talk about evidence that existed in the record that may have contributed to the ARO's consideration about whether or not employability was an issue. And that included a back condition that Mr. Andrews was a pre-existing condition, and he has not been awarded service connection for it. He sought service connection for it, and that was denied prior to his 1983 claim. And in addition, there is evidence in the 1983 record of alcohol and substance abuse that was not at issue in 1994. And while these documents, frankly, aren't relevant or material to the appeal that is on a narrow issue before us, whether or not the veterans court correctly held, that it does not have jurisdiction to entertain a cue motion that was not raised by council to the board or the RO. But these factual matters are out there. There is dispute. And of course, if alcohol and substance abuse is not secondary to a service connected condition, and here there's been no finding that it is, then that cannot contribute to the basis of compensation. And that's under 38 USC 1110, and also this court's decision in Allen. And the question about these facts, this mix of facts, that is for the veterans, the VA to decide. And respectfully, Mr. Andrews has never put that merits determination at issue in a cue motion. And once he does that, that will be decided. At that point, the veteran, the VA, in its proper role as the fact-finder can evaluate all of the evidence, and of course, it has to be evidence that was contained in the 1983 record. And make a determination as to whether that 1983 record, undabatable, establishes TAU, and I'm not saying he may not be able to do that, he may. But he needs to follow the proper vehicle as outlined by this court in Roerson and Andre. But you have an uninducated claim. Why does he have to show undividedly? That's what I don't understand. If we have concluded that the claim was never adjudicated, why in the world are we raising the bar on the veteran in terms of this standard of proof he has to meet? Because a non-expressally adjudicated TDIU claim can only be raised through Q, and Q is a collateral attack of a final judgment. You cannot collateral attack a final judgment without a final judgment. Okay, thank you, Mr. Rose. Thank you, Your Honours. Your Honours, I believe we have just witnessed why the doctrine of law, the case is necessary. The government did not ask for re-hearing of the 2014 decision. It didn't ask for reconsideration of the determination that was made by this court. We just spent 20 minutes relitigating the issue. And part of the problem here is that the government since this court issued the Roverson decision has done everything possible to create impediments to the implementation of that decision. And this panel I urge to write a presidential opinion that clarifies the holding in Roverson. As I understand the holding in Roverson, as I believe just more articulated to the government, the holding in Roverson is that if there is a pending claim and there is found to be a pending claim, then the veteran is entitled to have that pending claim adjudicated. The VA, in this case as a perfect example of it, has used the implicit denial rule to undermine their holding in Roverson, to use the implicit denial rule as a device because they read, I believe very narrowly, the decision in Roverson to mean that only can you pursue the theory in Roverson based upon an allegation of clear and unmistakable error. And therefore the burden is higher. I do not believe that that is the intent of Roverson in the case that was referred to by the government that was argued yesterday in Evans. The government put forth an argument that this court somehow overruled Roverson in cook. I do not believe that this court, when it went in Bonk, overruled this court's decision in Roverson and may perhaps this court needs to go in Bonk. To clarify the difference between the holding in Roverson and the difference in the holding in error, which is what in fact was overruled in cook. I urge this court to give Mr. Andrews resolution. You have seen the hurdles that the government wants to impose. I was hoping that if the government were to lose on all of the legal points that it might acquiesce in the factual one, but we can't decide facts in the first instance. And if she's going to stand up here and dispute what the record in AG3 would have established or not, how can we do that? If I say it's an unachudicated claim, I don't get to adjudicated in the first instance. No, of course you don't, John. But that then re-instates this court's order from 2014, which directs the veterans court to direct the board to adjudicate that headline. I'm sorry, I thought you were saying you want us to give him resolution. I thought you meant, because I was kind of hoping the government might acquiesce in the facts since the facts of record are just so clear. And that might, we could, you know, maybe say it's undisputed that sort of thing, but it doesn't seem that they're willing to do that. Well, it more than a decade. But the most you seem to be able to get here if you get anything at all is to go back and have the VA adjudicated. Yes, Your Honor, because I believe that's what we're entitled to under-roverson. But as I think the argument here today has demonstrated, there is a clear misunderstanding on the part of the government and to this extent on the part of Judge Castle and the lower court as to the meaning of this court's decision in roverson. And that is what benefit is derived the veteran who is in fact able to demonstrate that the issue was presented and not adjudicated. It was reasonably raised either by the veteran or by a liberal reading of the evidence. And that determination was made, I believe, as a matter of law that Mr. Roberson raised the issue. That legal determination was resolved by this court last time. What this court needs to do this time is to clarify the difference between the holding in roverson and the judicially created holding of implicit denot. Lessons for the questions from the court. I appreciate your time. Thank you. Thank you, Mr. Carpenter. Thank you, Ms. Rose. The case is taken under submission. That concludes the argued cases for this morning. All right