Good morning everyone. First I have your case this morning is number 13, 70, 65, Andrews against Shinseki. It's a carpentry. We have police court carpentry appearing on behalf of Mr. Edward Andrews. An issue in this case is whether or not the implicit denial rule, which is a rule that was created by this court in the Dishodell case and be used as a defense or a basis for denial of a request for revision based upon clear and uninstable error. The implicit denial rules strikes me that this has gotten a little convoluted. I mean under the showtale, as I understand it, there's an implicit denial. There's been a decision here on the TDIU plan. Then the question when you challenge that is Q is whether the evidence of a record that was before the board at the earlier time in 1983-1985, unmistakably established TDIU. It strikes me that it's that simple. I agree that the board here didn't seem to address that question directly. They seemed to say, well, there was no Q because there was a decision which doesn't make much sense. On the other hand, it strikes me that you didn't really argue the evidence to the board here. That's the problem I'm having. So help me with that. When you say I didn't argue the evidence, you didn't argue that the evidence established Q
. Well, what we are evidence was there in 80-85, whatever it was. Well, I believe we did, Your Honor, and what we argued to the board was that the error, the clear and uninstable error, was in the original rating decisions failure to consider and apply the provisions of 4.16b. I don't understand that that's the error. If there was one, was in not finding that there was TDIU based on the evidence that was in the record. Correct, Your Honor. And you have to use that regulation as the mechanism to make that analysis. Okay. So show me where that was. Because that's not, I looked at the arguments that you made before the board and before the evidence court. And I didn't really see that you made the argument that the evidence unmistakably established TDIU. Well, the way in which both the request for revision was framed and the argument before the veterans court was whether or not the board had correctly applied 4.16b, which is the same allegation of error in the ratings decision in 1983. And the opening, Mr. Oh, I'm sorry, I had to have a place. Okay
. So the opening brief to the veterans court specifically addressed the question of whether or not the board correctly applied 4.16b, which means that they apply that in the opening brief, get the citation for your own. It's at 57 to 70 specifically at pages 63 to 65. Mr. Carpenter, I, so I understood part of your Q claim and to be and you'll let me know if I'm right that the board. There was an implicit claim for TDIU that was made in 1983 and it wasn't decided. And I understood that to be part of your Q claim. And although you didn't exactly phrase it this way on appeal, one of the things that is bothering me, and I'm wondering if you can speak to it. And if you can't speak to it here on appeal, then maybe we could get supplemental briefing or something. But one of the things bothering me is the board as a factual matter below held that there was no implicit claim for TDIU that was made. But if there was, it was equally implicitly decided. And I almost felt like it was somewhat tongue and cheek and what bothered me about it is, how can the board say it implicitly decided something that it says in the same breath was never argued or raised or before them. And so I don't know if judicial stop all is the right rubric, but what's bothering me about this case is the board's internally contradictory statements and implicit denial requires as a predicate someone to have looked at and adjudicated the issue. And if the board made a fact finding that the issue wasn't presented, I don't know how they could then say it was implicitly denied. And so I don't know if it's a real deal of silence. But so I guess my question to you is, you didn't exactly frame it this way in your brief
. But can you talk to me about whether or not you think that there ought to be some sort of, I don't know if judicial stop all is the right word because this is an administrative agency, but whether there is some problem with the board's ability to do that. And whether or not that is what you would think of as part of your appeal. Well, I believe it is inherently part of this appeal because it goes to the question of how the implicit denial rule is used. It is my understanding as you just articulated that the implicit denial rule is the predicate for determining that finality exists. And the board did make somewhat inconsistent determinations. And I think the distinction they were trying to make was as there was no explicit adjudication of TDIU. But there was an implicit denial. Now, may have some giving the board more credit than they deserve. But it seemed to me that that was the distinction that they were making that they acknowledged that TDIU was raised by the evidence. Really, no, wait, on J-A-50, do you have your appendix handy? This is the board's opinion on J-A-52. At the bottom of J-A-52, do you see the words even if? Give you a second. Let me know when you're with me. Bottom of 50. Oh, isn't it? Yes, I do. Even if the board accepts, which it does not, that the evidence of record at the time of the 83 rating decision should have been interpreted as an implicit TDIU claim. Okay, so is that not a fact finding by the board that there was a factual matter? They do not interpret this record as raising an implicit claim
. Because if that's what that fact finding is, which is the way I interpret it, I find it really troubling that they can later claim that something that was never presented to them was nonetheless in silence implicitly denied by an opinion of there. And I believe that that is a correct statement, but it is so well concealed, your honor, in the decision that we normally look to the findings of fact, which are at J-A-48. And those findings of fact are simply that the rating decision granted a 10% rating, and then that it implicitly denied the entitlement to a rating of 10% for PTSD, including a PTSD rating, which is... And in fact, whether or not this is an argument that you believe that you are fairly raising. I mean, honestly, your answer to me right now almost suggests that you don't think I'm reading the board opinion properly. And if that's so, I'm really glad to hear you tell me so because I don't want to go off on a crazy tangential by myself. No, your honor. The difficulty with this decision is that under the Richardson case below, the Veterans Court has said that the determination of financial aid is not a good thing. But the reality has to be made first, and that was the way that Mr. Andrews pled his claim, saying that all you decided in that rating decision in 1983 was the scheduler aspect, and not the extra scheduler aspect. And it was reasonably raised by the evidence that existed at the time, and you should have adjudicated it. They made its termination that, as you just quoted in the decision, that they concluded that it had not been raised and or decided, and yet they made a finding a fact that it was implicitly denied. Our entire argument, both to the.
.. But I guess tell me how I get at this, because I can't do fact findings, and I get that. I don't like it, but I get it. So the question to me is, how in what way does my court have the ability to give the relief that you're seeking? Is it that there is some sort of legal doctrine? Maybe should I be looking at implicit denial as a legal issue? I mean, it seems factual, like a fact finding to me. So help me figure out a way to think about this. I believe the route is this court's interpretation of its own traditionally created rule of implicit denial, and that as Judge Dyke indicated, the implicit denial rule is limited to simply determining finality, and they can't do both. They can't use the implicit denial rule as a basis to deny the Q claim, which is what we presented below, that they misused that, and what we're presenting in this appeal, that they misused the implicit denial rule as a mechanism to deny a request for revision. But see, I'm not with you on that. I'm just going to be honest with you. I'm not with you on the idea that implicit denial can never be used to reject a request for revision as a matter of law. The problem I'm having, though, which is, I think, nonetheless, helpful to your cause, is that implicit denial can't be used in the face of their own fact findings to the contrary, their own fact findings that would make the notion of implicit denial inherently as a matter of law wrong. And so that's the problem I'm having. So I thought I said, I realize it's near the argument that you're making, but not necessarily squarely on point with it. And so I'm trying to figure out if it's a if it's a stopple concept, if it's bothering me, and I don't know if I have the authority to go to it, and if I do have the authority to go to it under what rubric am I able to reach this conclusion? Well, I think this court has the authority and the jurisdiction to review its own traditionally created rule of law and determine whether or not both the veterans court in affirming the board and the board in its action correctly utilized that rule of law. Well, your argument is isn't that the board should have looked at the evidence to see whether TDIU had been established on mistaken. Yeah
. And that, I mean, it's that simple. And clearly based on the portions of the decision that judge more review and also based on the material on page 54, they didn't do that. Now, but the question I have, the problem is did you argue that they should? Well, I believe that that was what we were intending to do by indicating to the veterans court in our second argument that the board misused the implicit denial rule that they could not use the implicit denial rule in the manner in which they did. And what the lower court found is clearly the case they should implicit denial means this a decision. Then the question becomes is that decision cue because the record established TDIU. But if as judge more pointed out that decision was not final, then under Richardson, you're dealing with a pending claim that they didn't do what they should have done, which is to look at the evidence and see if it established TDIU. Well, I absolutely agree with that, but I think they also failed to determine whether or not this was a pending claim because based upon the finding that judge more have to do with anything. I don't understand that implicit denial means there's been a decision. There's no pending claim anymore. The only way to go after is we said explicitly is by Q. And my question under Q is whether the evidence shows TDIU. Mr. Carvinder, I mean, you're explaining it in a very confusing way. Let me see if you think that what I'm about to say is something that you would agree with, which is that if we were to conclude that they never implicitly denied it as a matter of law because you can't implicitly deny something when you state the contrary of it, then it was never adjudicated. This isn't technically, it's a cue claim for failure to adjudicate, not a cue claim for adjudicating improperly. I think to be fair, you may have raised both of those arguments is that the way you would try to claim you said you failed to deny it
. And if you've got for goodness' dates, if you're going to say you did deny it, you did deny it wrongly in contradiction of 4.16. That's correct, sir. Yes. And I see that I'm waiting to find a problem. I'll say if you're a vital time, Mr. Carvinder, you need to explore these issues. Good morning, your arsmen. Please support. The problem going to judge his question is that he didn't in his cue claim say what one would normally expect to say in a cue claim. He didn't say the evidence clearly established the TDIU. This is the evidence that wasn't given the way it should have been given or whatever. And he's entitled to TDIU. All he said was the regional office 1983 failed to consider it. So the board addressing that specific cue claim that yes, it did. And that's it
. And the board stopped there because that's all that the board was asked to do is to address that specific cue claim. So the problem here and the reason it's gotten so confusing is because the claim that was brought, the cue claim that was brought doesn't actually bring a cue claim. It doesn't say what it needed to say to actually alleged cue. All it said was you didn't raise it. And the question of what that cue claim raises is a question of fact. And this court clearly stated that in Ellington versus he's the question of what is in a claim is the question of fact. And this court doesn't have jurisdiction to alter that the board here. And I direct the court's attention to to an appendix page. This is this the board said and I'll quote the specific and only allegation of error is that the July 1983 rating decision failed to sympathetically read the appellance claim for disability composition for PTSD to include entitlement to TDIU. To a title you writing based on unemployability. So that was the only cue claim right if he had raised some other cue claim if he had said I should have gotten TDIU the evidence clearly established the TDIU the board would have said something different. Okay, but wait, but then let's look at page J.A. 27, which is his brief. Below and look at the layoffs sentence on that page. Pursuant to either of these regulations, a sympathetic reading of Mr
. Andrews claim for disability compensation and the evidence then of record. This is what they're characterizing his claim should have led to an extra scheduler rating based upon unemployability because the evidence showed his inability to work due to his service connected post trauma stress disorder. How is this not him raising exactly what you said he never raised or made him. So, most importantly, because the board said that one and only allegation error was it was failed. Did they fail to raise it? So that's a fact finding the board said what I'm sorry. The part I just quoted the board said, are you reading which board opinion is this the J.A. 48 one the same one that Mr. Carpenter and I were looking at. Yes, okay, and what I'm looking at J.A. 50 50 the middle paragraph. Yes, the board said the specific and only allegation of error is and then it gets the board goes on. Okay, go on. Go ahead. Tell me what the rest of it is that the July 1983 rating decision failed to sympathically read the appellant plan for disability compensation for PTSD to include entitlement to TDIU
. So, the board is saying there's one error here. It's a failure to to consider TDIU. So the board responds to that and says, well, the regional office did consider TDIU and they implicitly deny this. But the board doesn't respond to it and says the regional the board's response is the part I read as a factual matter they find that he didn't implicitly create a claim for TDIU in 1983. And so they wouldn't have to decide why do I have to decide something that wasn't actually raised. I mean, that's part of fathering me is they expressly find he didn't make a claim and it's really hard to predicate an implicit denial on a factual statement that predicate that you do. So, I didn't raise this claim. The board did both. We agree with Mr. Carpenter here. If you look to the board's finding a fact on joint epinix 48, the board said the rating decision implicitly denied entitlement. There is no fact finding here to say it wasn't raised. Yes, but we have to the implicit denial will we have to look at it right and we have to say what I mean didn't we create me right. Didn't we create this implicit denial role out of whole cloth. So if it's a legally created doctrine by our court. Don't we have a right to look at the parameters not necessarily the application to an individual case that might be a lot of fact. But as a legal matter is the board permitted to say one thing it wasn't raised and we didn't decide it. But if it was raised we implicitly decided. It has a factual matter here the board didn't make a finding a fact that it wasn't raised. Sure it did. It's under the finding effect on page 48 it doesn't say it wasn't raised. Are you telling me that the only thing I should ever look at in a board opinion is the two bullet points at the beginning. That's the rest of the opinion is it's not viable. Those are findings. The fact why isn't this also a finding effect. It wasn't raised there was no implicit TDIU claim in 83. First of all, because they didn't actually say here is a finding effect it wasn't raised. The court could look at which it does not and say that's a finding effect. Because it says which it does not which is what you're on our pointing to on page 53 that the board was making two findings here. One that it wasn't raised and one that it was implicitly. You say that is so it's my interpretation but let's look at the first sentence of the veterans court opinion. That's exactly where I was going to turn here
. But as a legal matter is the board permitted to say one thing it wasn't raised and we didn't decide it. But if it was raised we implicitly decided. It has a factual matter here the board didn't make a finding a fact that it wasn't raised. Sure it did. It's under the finding effect on page 48 it doesn't say it wasn't raised. Are you telling me that the only thing I should ever look at in a board opinion is the two bullet points at the beginning. That's the rest of the opinion is it's not viable. Those are findings. The fact why isn't this also a finding effect. It wasn't raised there was no implicit TDIU claim in 83. First of all, because they didn't actually say here is a finding effect it wasn't raised. The court could look at which it does not and say that's a finding effect. Because it says which it does not which is what you're on our pointing to on page 53 that the board was making two findings here. One that it wasn't raised and one that it was implicitly. You say that is so it's my interpretation but let's look at the first sentence of the veterans court opinion. That's exactly where I was going to turn here. Let's go there. It's not the first sentence forgive me it's on page two. I think you're going to go to the same exact thought as me. Page two at the top. In the decision on appeal the board denied Mr. Andrews assertion of Q on two alternative basis. First the board found the claim for benefits of unemployment. Did not constitute an implicit claim for TDIU. So that the veterans court interpreted the board as not making just those fact findings at the beginning that you mentioned. But also explicitly that sentence that I thought looked like a fact kinding they thought it was too. Yes and the veteran's court didn't affirm on that basis the veteran's court affirmed on the second basis. Right because they put because right after that basis they say although the board offered little rationale for this finding. Right. I mean it's it's sort of but I guess the heart of my problem isn't what basis to the veterans court affirm on is. Is this judicially created implicit denial role which says veterans don't get a benefit that they sought. Even though the board might not speak to it implicitly denied
. Let's go there. It's not the first sentence forgive me it's on page two. I think you're going to go to the same exact thought as me. Page two at the top. In the decision on appeal the board denied Mr. Andrews assertion of Q on two alternative basis. First the board found the claim for benefits of unemployment. Did not constitute an implicit claim for TDIU. So that the veterans court interpreted the board as not making just those fact findings at the beginning that you mentioned. But also explicitly that sentence that I thought looked like a fact kinding they thought it was too. Yes and the veteran's court didn't affirm on that basis the veteran's court affirmed on the second basis. Right because they put because right after that basis they say although the board offered little rationale for this finding. Right. I mean it's it's sort of but I guess the heart of my problem isn't what basis to the veterans court affirm on is. Is this judicially created implicit denial role which says veterans don't get a benefit that they sought. Even though the board might not speak to it implicitly denied. Is that really something that ought to extend to a circumstance as a matter of law where the board itself acknowledges the claim wasn't before the veterans agency. I'm not sure as a matter of law the implicit denial role which we created ought to extend to a circumstance where the board itself believes the claim wasn't made. The problem with that we try to describe in detail in our brief in our second argument that if the board can't if it as a matter of law it can't be implicitly denied then we're left with the situation where all the veteran does say. Right you didn't consider it and let's let's say the board and down the altar the alternative finding here and say you're right it wasn't considered it wasn't considered that's an error. But it can't be cute it can't be cute because that error doesn't lead to anything it's just like a failure to assist the discord address on bonkers. It's not outcome determined exactly let me see if I can clarify this a little bit. The under implicit denial whatever his claim was it was denied in 1983 that denial could have been based on two things one that he didn't raise TDIU claim at all or two that the evidence didn't establish TDIU if he did raise such a claim did the what has been the government's argument is the government argue that he didn't properly raise the TDIU claim. In 1983 and therefore it was properly denied or was the government are even based on the second that even if he raised the claim the evidence didn't support. Because of the nature of his cute claim the government didn't address that distinction the government said he didn't make that claim that claim you're describing that cute claim that would have been viable. He didn't raise but that's not true. He certainly raised the first of those two he said that we we did what the veteran did raise in 1983 a Q claim and the extent that the board said he didn't raise a Q claim they were wrong and the government said it the evidence shows that it wasn't cute because that's the second question and it's not the first to the second question. Yes. So does the government agree that he raised a TDIU claim in 1983? No that's a fact question that the board found no what did you argue below the June argue that he didn't raise a Q claim. Well there was no argument there was no argument to that at all before the veteran's court because that wasn't that wasn't raised by the evidence because the board had found it was in push the deny. Why would we just send this back to the veteran's court and tell them what there was an implicit denial here we've already held that you've got to address two questions. One was the RTDIU claim properly raised in 1983 and two if it was properly raised does the evidence show TDIU appropriate way to get to that conclusion would be for Mr
. Is that really something that ought to extend to a circumstance as a matter of law where the board itself acknowledges the claim wasn't before the veterans agency. I'm not sure as a matter of law the implicit denial role which we created ought to extend to a circumstance where the board itself believes the claim wasn't made. The problem with that we try to describe in detail in our brief in our second argument that if the board can't if it as a matter of law it can't be implicitly denied then we're left with the situation where all the veteran does say. Right you didn't consider it and let's let's say the board and down the altar the alternative finding here and say you're right it wasn't considered it wasn't considered that's an error. But it can't be cute it can't be cute because that error doesn't lead to anything it's just like a failure to assist the discord address on bonkers. It's not outcome determined exactly let me see if I can clarify this a little bit. The under implicit denial whatever his claim was it was denied in 1983 that denial could have been based on two things one that he didn't raise TDIU claim at all or two that the evidence didn't establish TDIU if he did raise such a claim did the what has been the government's argument is the government argue that he didn't properly raise the TDIU claim. In 1983 and therefore it was properly denied or was the government are even based on the second that even if he raised the claim the evidence didn't support. Because of the nature of his cute claim the government didn't address that distinction the government said he didn't make that claim that claim you're describing that cute claim that would have been viable. He didn't raise but that's not true. He certainly raised the first of those two he said that we we did what the veteran did raise in 1983 a Q claim and the extent that the board said he didn't raise a Q claim they were wrong and the government said it the evidence shows that it wasn't cute because that's the second question and it's not the first to the second question. Yes. So does the government agree that he raised a TDIU claim in 1983? No that's a fact question that the board found no what did you argue below the June argue that he didn't raise a Q claim. Well there was no argument there was no argument to that at all before the veteran's court because that wasn't that wasn't raised by the evidence because the board had found it was in push the deny. Why would we just send this back to the veteran's court and tell them what there was an implicit denial here we've already held that you've got to address two questions. One was the RTDIU claim properly raised in 1983 and two if it was properly raised does the evidence show TDIU appropriate way to get to that conclusion would be for Mr. Andrews to specifically raise that Q challenge and you can still do that now you could have done it anywhere along the way here as soon as the regional office said the only thing I see here is you're saying. We've they failed to consider TDIU you said no that's not my that wasn't what I was trying to say what I was trying to say is that it's been implicitly denied which is what he's saying now that it's been implicitly denied and it was they were wrong to do so he could have brought that in the Q claim anywhere along the way. I heard you say he can do it now yes and it seems it must be clear that there is concern as far as this veteran is concerned that this particular issue was not explored to the full depth to which it might have been at least from the dates at which might have might have been attributed to this fall into the category of a situation that's happened from time to time where the VA has taken the case. Back and essentially started again to assure that every issue that affects this veteran is properly considered at the appropriate level we can we may as has been mentioned put it back through the chain but there is a concern not just as to how the broad principles of implicit denial work but also how they apply. In this particular case and I have the sense that perhaps the VA appreciates that in this particular case there were issues that might have been given more complete or more thorough or different treatment along the path that got us here. It's beyond this court jurisdiction but we have a footnote describing what else was in the record then to give a flavor for the sense that we don't think there's any cue here in this decision. What is not beyond our jurisdiction to say we're not clear what the veteran's court was saying so we're sending it back to them to tell us what they're saying. Well that's certainly true your honor but if beyond this court jurisdiction is like the second point I was going to raise it's certainly beyond this court jurisdiction to say what was raised in the cue claim. The board found and the veterans court affirmed that the only claim brought here that's not what they are saying. The suggestion is we can't figure out what you did here. What you should have done is determine whether they raised a cue claim and then whether on the evidence the cue claim was established and we'd like you to tell us what your views are about that. And it may result in a decision that it's not reviewable because it's a fact termination but right now you can see we're struggling trying to figure out what happened below here in these very confusing word in the veterans court decisions. It is incredibly confusing your honor but the reason it's incredibly confusing is because of the cue claim that's in here. The board looked at the cue claim and said the only thing you seem to be raising despite that language that judge more points you the only thing you seem to be raising is a failure to consider. So yes we think it hasn't considered and that ends the matter and that's confusing because the cue claim itself didn't say enough and that's a question of fact. So it wouldn't be right to send it back through the process that ultimately wouldn't help the veteran what would help the veteran if there is cue
. Andrews to specifically raise that Q challenge and you can still do that now you could have done it anywhere along the way here as soon as the regional office said the only thing I see here is you're saying. We've they failed to consider TDIU you said no that's not my that wasn't what I was trying to say what I was trying to say is that it's been implicitly denied which is what he's saying now that it's been implicitly denied and it was they were wrong to do so he could have brought that in the Q claim anywhere along the way. I heard you say he can do it now yes and it seems it must be clear that there is concern as far as this veteran is concerned that this particular issue was not explored to the full depth to which it might have been at least from the dates at which might have might have been attributed to this fall into the category of a situation that's happened from time to time where the VA has taken the case. Back and essentially started again to assure that every issue that affects this veteran is properly considered at the appropriate level we can we may as has been mentioned put it back through the chain but there is a concern not just as to how the broad principles of implicit denial work but also how they apply. In this particular case and I have the sense that perhaps the VA appreciates that in this particular case there were issues that might have been given more complete or more thorough or different treatment along the path that got us here. It's beyond this court jurisdiction but we have a footnote describing what else was in the record then to give a flavor for the sense that we don't think there's any cue here in this decision. What is not beyond our jurisdiction to say we're not clear what the veteran's court was saying so we're sending it back to them to tell us what they're saying. Well that's certainly true your honor but if beyond this court jurisdiction is like the second point I was going to raise it's certainly beyond this court jurisdiction to say what was raised in the cue claim. The board found and the veterans court affirmed that the only claim brought here that's not what they are saying. The suggestion is we can't figure out what you did here. What you should have done is determine whether they raised a cue claim and then whether on the evidence the cue claim was established and we'd like you to tell us what your views are about that. And it may result in a decision that it's not reviewable because it's a fact termination but right now you can see we're struggling trying to figure out what happened below here in these very confusing word in the veterans court decisions. It is incredibly confusing your honor but the reason it's incredibly confusing is because of the cue claim that's in here. The board looked at the cue claim and said the only thing you seem to be raising despite that language that judge more points you the only thing you seem to be raising is a failure to consider. So yes we think it hasn't considered and that ends the matter and that's confusing because the cue claim itself didn't say enough and that's a question of fact. So it wouldn't be right to send it back through the process that ultimately wouldn't help the veteran what would help the veteran if there is cue. There actually is cue here is to have a cue claim file that says I mean he's entitled to TDIU for the following specific reason address that on the merits not to say you fail to consider TDIU that's the allegation you made here. Why why and I'm not trying to pin you down you know when I'm doing that I'm not trying to figure this out so why why help me understand why because he alleged that the client was entitled to unemployability benefits and there are a couple of places in this record where I guess what some of the physicians talked about him being unemployable or something like that right I mean there's a couple of things. The instances in the record at that time to where the words unemployable or not able to hold a job or something came up so that's clearly the evidence upon which everybody is talking about like. So I guess are you saying that that evidence on its face isn't strong enough to establish entitlement to the benefit and that's why but that's the thing I don't when was that decided or where was that decided that's what it was troubling me. It wasn't because he hasn't raised I mean that's that's the problem if we can we can I turn the court's attention to join panic page 91 which is the regional office decision first denying this cue claim and the head heading in that decision. The issue the regional office was considering is whether a clear and unimesticable error was made in the rating decision dated July 28th 1983 for failing to consider extra schedule our unemployability so the regional office like the board saw the only issue being raised here is did we fail to consider it. That's the problem is looking at the cue claim what did he actually raise in his cue claim that's very confusing because the implicit denial rule says that it was denied. Yeah right and I think what they should have done clearly is to say well let's first decide whether we raised a cue claim whether was sufficient evidence there I would have thought that the evidence was enough to raise a T.E.I. U. claim. In the second question which nobody seems to have addressed so far as I can tell is whether the evidence of record that that was sufficient to establish T.E.I. U
. There actually is cue here is to have a cue claim file that says I mean he's entitled to TDIU for the following specific reason address that on the merits not to say you fail to consider TDIU that's the allegation you made here. Why why and I'm not trying to pin you down you know when I'm doing that I'm not trying to figure this out so why why help me understand why because he alleged that the client was entitled to unemployability benefits and there are a couple of places in this record where I guess what some of the physicians talked about him being unemployable or something like that right I mean there's a couple of things. The instances in the record at that time to where the words unemployable or not able to hold a job or something came up so that's clearly the evidence upon which everybody is talking about like. So I guess are you saying that that evidence on its face isn't strong enough to establish entitlement to the benefit and that's why but that's the thing I don't when was that decided or where was that decided that's what it was troubling me. It wasn't because he hasn't raised I mean that's that's the problem if we can we can I turn the court's attention to join panic page 91 which is the regional office decision first denying this cue claim and the head heading in that decision. The issue the regional office was considering is whether a clear and unimesticable error was made in the rating decision dated July 28th 1983 for failing to consider extra schedule our unemployability so the regional office like the board saw the only issue being raised here is did we fail to consider it. That's the problem is looking at the cue claim what did he actually raise in his cue claim that's very confusing because the implicit denial rule says that it was denied. Yeah right and I think what they should have done clearly is to say well let's first decide whether we raised a cue claim whether was sufficient evidence there I would have thought that the evidence was enough to raise a T.E.I. U. claim. In the second question which nobody seems to have addressed so far as I can tell is whether the evidence of record that that was sufficient to establish T.E.I. U. I understand exactly where you're going to come from and I agree what the cue claim should have said is the record before for us establishes T.E.I. U. for these reasons these specific reasons and of course that under Andre needs to be specific explain what the error is. And then ask for a decision on that but the neither the regional office nor the board thought that's what he was asking for but what and they maybe they were confused but that's a question of fact. No it's not a question of fact whether they were confused. It's a question of fact here on it let me be clear is the question of fact what the cue claim raised I read the cue claim the same way they do I look at that cue claim and that's the joint appendix 26 to 31 I read that whole thing and it looks like what he said. So what I'm saying is you failed to consider T.E.I. U. He's not he didn't appear in this document to understand what you're on or just explain that it was that means it was implicitly tonight means it was the law that I now we need to go to the step two. But wait but that's but that's but he but he does that J.A. 27 say the quote the evidence set of record in 1983 should have led to an extra schedule of rating based on unemployment because the evidence showed his inability to work due to a service connected PTSD
. I understand exactly where you're going to come from and I agree what the cue claim should have said is the record before for us establishes T.E.I. U. for these reasons these specific reasons and of course that under Andre needs to be specific explain what the error is. And then ask for a decision on that but the neither the regional office nor the board thought that's what he was asking for but what and they maybe they were confused but that's a question of fact. No it's not a question of fact whether they were confused. It's a question of fact here on it let me be clear is the question of fact what the cue claim raised I read the cue claim the same way they do I look at that cue claim and that's the joint appendix 26 to 31 I read that whole thing and it looks like what he said. So what I'm saying is you failed to consider T.E.I. U. He's not he didn't appear in this document to understand what you're on or just explain that it was that means it was implicitly tonight means it was the law that I now we need to go to the step two. But wait but that's but that's but he but he does that J.A. 27 say the quote the evidence set of record in 1983 should have led to an extra schedule of rating based on unemployment because the evidence showed his inability to work due to a service connected PTSD. I give you I grant you that if I have to pick just one thing in that document there's no doubt the thing that jumps out at me is failure to adjudicate no doubt it's over and over and over again in that cue claim and in all the briefing and everything else. But didn't this isn't this enough isn't the fact that he did say he does have all the way back to that very document a statement saying the evidence of record showed his inability to work isn't that enough. And there's this is a veteran you know and back then back then you know I mean come on but you're looking and by the way you guys granted in T.E.I. U. just a couple years later so this isn't a case where we all agree the guys got PTSD. He looked four years he had 30 different jobs he couldn't hold them down I mean I think it's on the merits the kinds entitled you're here arguing process and that's the hard thing for me is I also think in the process how does the board say well we didn't raise it so we didn't decide it but if you did raise it wink wink we decided it you know I mean that's the part that's bothering me it's just too cute by house. I certainly understand that he was ultimately granted full benefit that doesn't mean that there was two in the 1983 decision at that time that that he was entitled at that time to all of it and reasonable people within the VA throughout have looked at this evidence and they didn't see a problem now he didn't directly appeal that you didn't give it to the unreasonable one. The real problem here is to read to think that one sentence on joining thanks 27 and to pull that out and say actually there's another claim here there's another Q claim he's raised two claims is what I understand you're on to be saying he's raised two different allegations of Q as he says he did now that's not what the regional office of the board found as a matter of fact and this court said clearly in turnia and Ellington versus peak the interpretation of the contents of a claim for benefit is a factual issue over which we do not have jurisdiction. So this court can't say now there were two claims here raised we're going to demand it to consider that second claim what the court can say is we're affirming this decision because the Q claim here didn't raise what he's now saying it raised as a matter of fact because the board found it didn't and he can raise another Q-clang which he could have done it any time. If his, if he thinks that the record in 1983 truly establishes TDIU and that the decision of the contrary is clear and understandable error, he can raise that Q-clang. We don't think it does. There's other evidence in the record as we explain in our footnote. There's evidence of a lower back disability that the regional office could have reasonably thought that was the reason he couldn't work because the work of the Olympic.
. I give you I grant you that if I have to pick just one thing in that document there's no doubt the thing that jumps out at me is failure to adjudicate no doubt it's over and over and over again in that cue claim and in all the briefing and everything else. But didn't this isn't this enough isn't the fact that he did say he does have all the way back to that very document a statement saying the evidence of record showed his inability to work isn't that enough. And there's this is a veteran you know and back then back then you know I mean come on but you're looking and by the way you guys granted in T.E.I. U. just a couple years later so this isn't a case where we all agree the guys got PTSD. He looked four years he had 30 different jobs he couldn't hold them down I mean I think it's on the merits the kinds entitled you're here arguing process and that's the hard thing for me is I also think in the process how does the board say well we didn't raise it so we didn't decide it but if you did raise it wink wink we decided it you know I mean that's the part that's bothering me it's just too cute by house. I certainly understand that he was ultimately granted full benefit that doesn't mean that there was two in the 1983 decision at that time that that he was entitled at that time to all of it and reasonable people within the VA throughout have looked at this evidence and they didn't see a problem now he didn't directly appeal that you didn't give it to the unreasonable one. The real problem here is to read to think that one sentence on joining thanks 27 and to pull that out and say actually there's another claim here there's another Q claim he's raised two claims is what I understand you're on to be saying he's raised two different allegations of Q as he says he did now that's not what the regional office of the board found as a matter of fact and this court said clearly in turnia and Ellington versus peak the interpretation of the contents of a claim for benefit is a factual issue over which we do not have jurisdiction. So this court can't say now there were two claims here raised we're going to demand it to consider that second claim what the court can say is we're affirming this decision because the Q claim here didn't raise what he's now saying it raised as a matter of fact because the board found it didn't and he can raise another Q-clang which he could have done it any time. If his, if he thinks that the record in 1983 truly establishes TDIU and that the decision of the contrary is clear and understandable error, he can raise that Q-clang. We don't think it does. There's other evidence in the record as we explain in our footnote. There's evidence of a lower back disability that the regional office could have reasonably thought that was the reason he couldn't work because the work of the Olympic... One mission that reached the last, or the penultimate, sentence of the board's decision in the age 54 says there's simply no basis for finding Q in that RO decision on that, on that basis of a failure to consider TDIU because it's discussed above any implicit claim was denied. That seems to say there can't be Q because there was an implicit denial. That's ridiculous. Doesn't make any sense. That is ridiculous and doesn't make any sense in the general concept until you look at the specific Q-clang that was raised here, which was an allegation. The problem is that doesn't make any sense. It says the EQ is failure to consider TDIU. So there's responding to that and saying, well, that Q isn't present here. That as we said, that was the whole second argument in our brief is to flesh out exactly why that kind of an allegation of Q doesn't make any sense and can't ever be Q. Just like this court didn't go. Can I have one final question? I'm not going to have to answer that question. Here's my last question. If I were to conclude as a matter of law that the implicit denial rule doesn't allow the board to say it implicitly denied something, which it simultaneously claims wasn't raised, as a matter of law that can't happen. It's too internally contradictory. And tell me what happens in this case
.. One mission that reached the last, or the penultimate, sentence of the board's decision in the age 54 says there's simply no basis for finding Q in that RO decision on that, on that basis of a failure to consider TDIU because it's discussed above any implicit claim was denied. That seems to say there can't be Q because there was an implicit denial. That's ridiculous. Doesn't make any sense. That is ridiculous and doesn't make any sense in the general concept until you look at the specific Q-clang that was raised here, which was an allegation. The problem is that doesn't make any sense. It says the EQ is failure to consider TDIU. So there's responding to that and saying, well, that Q isn't present here. That as we said, that was the whole second argument in our brief is to flesh out exactly why that kind of an allegation of Q doesn't make any sense and can't ever be Q. Just like this court didn't go. Can I have one final question? I'm not going to have to answer that question. Here's my last question. If I were to conclude as a matter of law that the implicit denial rule doesn't allow the board to say it implicitly denied something, which it simultaneously claims wasn't raised, as a matter of law that can't happen. It's too internally contradictory. And tell me what happens in this case. Nothing would change here because the veterans court didn't affirm that other finding the veterans court affirmed on the basis that it was implicitly denied. And that was the thing that was raised in the Q. But if I find as a matter of law, it wasn't implicitly denied as a matter of law because they misunderstood the implicit denial fact. But as a matter of law, just like just explained it had to have been denied to even raise Q. No, but I just found it wasn't, okay? Because if it wasn't a matter of law, they misunderstand the implicit denial. So then what? That means it's still pending, and that goes against what this court said in Roberson, I think. Because this court said that in the circumstance, when a claim is, when it claims denied and the other one's not, it's not that it's still pending, but it was implicitly denied. So if this court were to find contrary to that, then we'd be back where I believe the government actually argued that specific outcome back then, and this court found that that's not correct. I think we have a position. Thank you, Mr. Goodman. Mr. Carpenter, for the question from the court. No, I think we look forward to it. I do, too. Thank you very much, John
. Thank you both. The case is taken under submission. The court will stand in recess for 10 minutes or so. All right