Ah Next case is Owen Boseman versus the Secretary of Veterans Affairs 2015-7020. Mr. Laquas. Good morning, Your Honours, and may it please the Court. The Veterans Court aired when it excused the Board of Veterans Appeals clear failure to consider relevant evidence and support for Mr. Boseman's claim. 38 U.S.C. Section 7104A imposes upon the Board of Veterans Appeals a duty independent of any argument specifically raised by the claimant to look at all the evidence of record and make its decision based on the entire record before it. But didn't the three opportunities to raise that and fail to do so? The argument, regardless of the arguments raised at the Veterans Court, this evidence, the 2005 VA examination, was before the Board at the time it made its decision. Therefore, contrary to the Veterans Court's interpretation of the law, the Board of Veterans Appeals had a full and fair opportunity to consider the impact of the 2005 VA examination on its decision
. Your complaint is that the Board did not mention the 2005 decision? Our complaint is that the Board arrived at a finding that Mr. Boseman's impairments were related to substance abuse rather than PTSD without adequate consideration of this 2005 VA examination, which specifically states that his substance abuse is related to his PTSD. Because the Board, the Board in its decision, I'm looking at, I think this is 116 of the appendix, it says, in adjudicating the claim, the Board has reviewed all of the evidence in the Veterans Claims file, including any found in virtual VA in the 2005 exam was part of that file. But the Board never made any explanation as to why it found the 2002 VA examination's findings more probative than the 2005. Is your problem here the way the Veterans Court rejected this argument, not just because, because it seems to me that if the Veterans Court had said, you know, the Board said that thing that my colleague just quoted, and they considered all the evidence, we have to presume that they considered the 2005, I think it's the 2005 Dr. Sherport, and said, we'll presume that they considered it and rejected it and relied on the 2002. You wouldn't be here, would you, because that would be the Veterans Court saying that there was an adequate reasons and bases, and we can't review that. That would be correct, Your Honor. That would be an entirely different situation. What we have here is the Veterans Court not reaching the merits of the Board of Veterans Appeals decision by using their issue. Exactly, Your Honor
. And I'm struggling a little bit with this because I do think that it seems to me that they may have legally expanded the scope of the issue, Proclusion Rule, erroneously. But I'm wondering whether that's actually true, or it's just a misapplication of the issue, Proclusion Rule, which even if we disagreed with would still be an application of law to fact that we can't review. Well, the reason that the reason it's not an application of law to fact is that here we have 7104A, which directs the Board to look at the 7th, regardless of what arguments are raised. Issue Proclusion cannot apply to something that the Board was supposed to address whether or not the Veteran raised it in the first place. Sims Proclusion. Well, but that's, I'd like to get away from talking about the viability of the issue Proclusion Rule altogether. I know you disagree with that, I think it's contrary to Sims. But let's assume that it's a good rule. I'm worried that they've expanded it to go beyond issue Proclusion to evidence Proclusion. And it seems to me that assuming that we accept that issue Proclusion is a good rule, even if the Board is required to look at everything in and articulate all legal theories, the issue Proclusion could still preclude it on a legal theory that was never raised until the Veteran Court. But here the legal theory is, and the legal argument is all about an earlier effective date, right? And so you've raised this all throughout, and all you've said to the Veteran Court was they didn't consider this piece of evidence
. And that's not a new legal argument, is it? No, that's correct, Your Honor. It's not a new legal argument. It seems to me that that's an improper use of issue Proclusion. But does it go beyond the line of an improper application to an improper legal interpretation? I think that this Court can interpret the rule, and I think that that's what President says in Sims. And I think it's more consistent with this Court's precedent in Robinson that, and the recent case of Scott, that when it comes to the Board's duty to consider evidence, an argument based on a failure to comply with that duty, issue Proclusion cannot apply to that situation. Because of the existence of 7104. There's no new legal issue that's being raised for the First Amendment. Precisely. He'll feed just additional argument, evidentiary argument, in favor of that legal argument that's already been raised to the Board. That's exactly correct, Your Honor. There is no need
. Just to pick up. So what you're saying is what you're saying that 7104 prevents the exhaustion rule from being used when evidence is involved. Is that it? That's right, because the Board needed to do this, whether or not the veteran raised the argument to the Board about the evidence, because the Board needed to consider that evidence, and as part of that consideration determining its relevance, and how that would affect its ultimate decision, there is no question of exhaustion in this case, because the issue was before the Board of the Time it made its decision in light of the statute passed by Congress. So you would say that maggot or maje doesn't speak to this, it speaks to legal issues. I would argue first that in that case, in that case, we had not a question of looking at evidence, but two legal issues that were raised. Well, first of all, that case came before Sim, so I would argue that Sim, let's assume Sim did not overrule that case. I think Scott here is instructive because Scott looks at a narrow exception to the rule in Sim's, where if there is a procedural issue, something that would have been on the veteran to raise in the first place, upon being notified, you have not renewed your request for a hearing, he didn't then come back and say. What about the fact here, Mr. Arthur, that we have a little bit of an unusual, but a little bit of a different situation. We are not here talking about a direct appeal up from the BVA, where the CAVC said, no, you didn't raise this before the BVA. We are looking at this in the setting of a situation where there was a joint motion for remand, very specifically pointing the board to two issues, one of which the TDIU wasn't before us anymore, but isn't that a different situation here? I mean, what is wrong in that situation of applying the exhaustion requirement to a fact? Two responses to that, Eron, are first and foremost, the joint motion for remand in this case, expressly left open the board's duty to look at all of the evidence of record, conduct a critical examination of the justification for its prior decision, and address all issues of fact and law presented on the record
. So the board was actually expressly directed to comply with all of those statutory duties on remand. There's really nothing additional that could have been done to trigger the board's duties to comply with the statutes that are already on the plunder. If we apply this exhaustion rule here, isn't it going to either require the veterans when they agree to a joint remand motion to list specifically every single piece of evidence they won't reconsider? Or when it goes back to the board and file another brief to the extent they have an opportunity saying every single piece of evidence or to say, look at everything. That's right, Eron. I mean, the thing that's difficult for me about this case is that it seems like it's hard to tell one way or another because the board didn't specifically say it, but they had the record before it. So we would normally, I think, presume that they did look at this and just didn't find the 2005 report persuasive. And seems like the veteran's court should have said that on the merits. If that's what they thought, rather than use this loophole to duck the merits argument. And I, you know, I think that's correct. Your honor. We're not we don't know exactly what the veterans court may have found
. They may have found that the board's failure to discuss this 2005 examination was prejudicial because on remand, the board might find that the 2005 examination was more provative, you know, but that's not before the court, of course, because the veterans court went around this issue entirely using this exhaustion rule. And the fact of the matter is, Your Honor, there's only one statute that gives the board jurisdiction to make a decision on a claim and that's 7104. And Congress could have if they wish to when they passed the VJRA put a second statute right beside that saying for cases coming back from the veterans court, the board's duties are narrowed. They only need to address what the veterans court did, but Congress chose not to do so. No, that's okay. You're right. Okay. I'll tell you about that. So if the panel has no further questions, I'll simply reserve the remainder of my time for a bottle. We'll do that Mr. Murrow
. Thank you, Mr. Hawking. Please, Court. So I guess we're talking about this case in terms of whether or not the veterans court precluded somebody or affirmed the board's failure to consider evidence, which I think in response to Judge's use of own observations calls into question the presumption that the board and Judge Charles noted the beginning with respect to the site to the record. The presumption that the board did consider all the evidence in the court. But they didn't say that. I'm sure you listened to the questions. It seems to me a little troubling that they're extending this issue preclusion rule, which I think we're being called on to a rule altogether. I'm not sure that that's correct, but they're extending it to a pretty far extreme that's going to, in essence, require veterans to do some kind of specific pleading on remands or on the like about every single specific piece of evidence. They want the board to look at in terms of their argument. And that seems to me to be an awful burden imposed on veterans, particularly a lot of them that are underrepresented
. Why isn't this issue preclusion rule confined only to legal arguments that weren't raised in time instead of evidentiary arguments in support of a legal argument that has been raised? Well, the decision here could have been better in the sense that it could have described specifically what had already been done by the board. And in this case, when you look at the entire record, it's clear that in 2012 the board looks at this question of whether he's, whether Mr. Boseman's entitled to an increased, remember, he's already been service connected and that's had a rating going back to 93. So the precise question after the first board's decision, which found that he was 70% entitled from February 2003 on, but 50% prior, was whether he was entitled to 70% for the 18 months prior to February 2003. That was the issue that was raised and the argument raised before the veterans court was that there was evidence in the record with respect to the 2002 medical opinion that suggested that perhaps he had the medicine was causing him problems, but they couldn't tell what the medicine was that the board was referring to. Was it the medicine that he was taking for his PTSD, which would seem to suggest perhaps maybe he deserved an increase, or was it recreational drug use that was causing this? So that's the issue that's presented. And so that's the issue that's for us. I understand all this. If the veterans court had said, you know, the board looked at all this and they even though they didn't specifically cite the 2005 report, they presumably looked at it. And their decision rejecting in the earlier effective date is not clearly aronious and sort of by evidence that be fine, but they didn't say that they said it weighs in favor of those invoking exhaustion doctrine, not to even considered the argument about whether there was a reason some basis deficiency or not citing the 2005 thing. That seems to me to be different than just saying they probably considered it without citing it
. I think that the argument that see as I understand the argument that was presented to the veterans court, it was that there was an error in not understanding that the 2005 document was a was an interpretation of the 2002 document. But the issue before the point that's a new legal argument, I think it's a new. Can I just step back from the facts in this case? Do you agree that it's not appropriate to apply this issue exhaustion rule to evidentiary pieces of evidence that have maybe weren't specifically pointed out, but were in the record and the board was required to look at? I think that generally no, but I could see possibly exceptions depending upon the nature of the argument. Well, if the evidence are pointing to implicate a new legal theory, of course, and that's issue preclusion because it's a new legal theory. But here, there's no new legal theory. Everybody's arguing about effective date. The VA was certainly on notice that that's what the veteran was arguing about. He just pointing to a new piece of evidence saying I'm not sure though. Frankly, when you read the entire briefing before this court, there's suggestion that the argument really is turning into a secondary service connection argument that by reading the 2005 opinion that's a suggestion that's not what the veterans court says. The veterans court doesn't say that. No, the veterans court just said that they weren't going to entertain this new argument, but you're right
. They don't say that in the case. It is not a new legal argument though. It's a new evidentiary argument. Well, to the extent someone is arguing that a 2005 medical opinion actually supports an argument in behalf of secondary service connection, that's a new claim to new issue to new argument. So, you know, that that would be subject to issue preclusion and I'm prepared to address that, but. Well, no, but that's not. I mean, the veterans court didn't phrase it that way. No, the veterans court doesn't in turn said this is an piece of evidence that they didn't specifically point out to the board and therefore we're going to apply exhaustion. And my response to the if that is a correct reading of what happened here, I know you dispute that somewhat. But that's a correct reading. Then isn't the implication of the board of the veterans court decision that they think issue exhaustion can apply to evidentiary to the requirement to consider all the evidence at the second time. I mean, if that's the reading, then then you know, that would you think that's a correct reading if that's the reading. I don't think that's a I don't think that's a correct reading, but I don't think that's what happened. I do think that what happened here is simply that the veterans court determined that the issue before them, the issue before the board at the whole the whole time was this 18 month period about increased service connection. And then that was what the board addressed and that the 2001 and 2002 medical opinions were more probative of that period of time than was a 2005 medical opinion. And so therefore it's not an error in the part of the court to not, or to the board to not reference 2005. So that would be great and you would definitely win if that's what the veterans court had said or at least I think you would definitely win. Sorry. But they didn't say that and they're using this procedural loophole in a way that to me if we continue to allow the veterans court to do this and allow the secretary to argue this issue preclusion rule in a broad way. And so that's why the veteran court seems to burn veterans in a way that the system wasn't intended to do. But here's the problem. And there's ways to deal with this without you know reversing
. I mean, if that's the reading, then then you know, that would you think that's a correct reading if that's the reading. I don't think that's a I don't think that's a correct reading, but I don't think that's what happened. I do think that what happened here is simply that the veterans court determined that the issue before them, the issue before the board at the whole the whole time was this 18 month period about increased service connection. And then that was what the board addressed and that the 2001 and 2002 medical opinions were more probative of that period of time than was a 2005 medical opinion. And so therefore it's not an error in the part of the court to not, or to the board to not reference 2005. So that would be great and you would definitely win if that's what the veterans court had said or at least I think you would definitely win. Sorry. But they didn't say that and they're using this procedural loophole in a way that to me if we continue to allow the veterans court to do this and allow the secretary to argue this issue preclusion rule in a broad way. And so that's why the veteran court seems to burn veterans in a way that the system wasn't intended to do. But here's the problem. And there's ways to deal with this without you know reversing. Because frankly what the board did here, which is really what what's that issue was proper. They looked at the issue that was presented. They focused on the pertinent probative evidence cited the fact that they had, I mean the problem here is not with the board. The problem is with the veteran court and the secretary urging this issue preclusion rule at the veteran court and the veteran court buying off on it. But a remand, it doesn't just encourage the secretary to expand the use of this even more. It depends on what grounds you affirm. I mean, I know this could be sensitive, but we can't affirm what grounds that the veterans court didn't rely on. You could find that any remand at this point isn't necessary because the board did, the agency did what it was supposed to do here. So you're suggesting it sounds to me like your harmless hair. You mean what you didn't put in your briefs? No, but that's because to be problematic with our jurisdictional statute anyway. We, you know, we look at this case as one suggesting that a new issue was being raised, consistent with what the Fetchon Court said, despite the fact that the argument is that evidence wasn't considered really what's being argued here as a basis for increased in the rating
. Because frankly what the board did here, which is really what what's that issue was proper. They looked at the issue that was presented. They focused on the pertinent probative evidence cited the fact that they had, I mean the problem here is not with the board. The problem is with the veteran court and the secretary urging this issue preclusion rule at the veteran court and the veteran court buying off on it. But a remand, it doesn't just encourage the secretary to expand the use of this even more. It depends on what grounds you affirm. I mean, I know this could be sensitive, but we can't affirm what grounds that the veterans court didn't rely on. You could find that any remand at this point isn't necessary because the board did, the agency did what it was supposed to do here. So you're suggesting it sounds to me like your harmless hair. You mean what you didn't put in your briefs? No, but that's because to be problematic with our jurisdictional statute anyway. We, you know, we look at this case as one suggesting that a new issue was being raised, consistent with what the Fetchon Court said, despite the fact that the argument is that evidence wasn't considered really what's being argued here as a basis for increased in the rating. And the two pertinent contenders are in this medical. So I understand your point. I just want to be very clear about and make sure I know where you are on this point because I think you agreed that if the veterans court interpretation of issued preclusion extends to a rule that would allow it to refuse to consider argument about certain pieces of evidence unless they were specifically raised to the board on remand by the veteran. And that that's an incorrect legal interpretation of issue preclusion. I'm going to respond as long as it pertains to a legal issue that has been raised. That's the presumptive. If the legal issue has been raised, the fact that on appeal after a remand, after a remand, the veteran points to evidence that was in the record that was supposed to have been considered, but may not have been specifically pointed out by the veteran. That is not far from the issue preclusion. I could see a situation where what you're suggesting is that without having statutes in the case law provide the claimant with the opportunity to identify the weakness in the board's decision. And they go back and they have the opportunity under the particular case in the veteran court precedent with respect to post remand submission of evidence and argument to do that. And they don't
. And the two pertinent contenders are in this medical. So I understand your point. I just want to be very clear about and make sure I know where you are on this point because I think you agreed that if the veterans court interpretation of issued preclusion extends to a rule that would allow it to refuse to consider argument about certain pieces of evidence unless they were specifically raised to the board on remand by the veteran. And that that's an incorrect legal interpretation of issue preclusion. I'm going to respond as long as it pertains to a legal issue that has been raised. That's the presumptive. If the legal issue has been raised, the fact that on appeal after a remand, after a remand, the veteran points to evidence that was in the record that was supposed to have been considered, but may not have been specifically pointed out by the veteran. That is not far from the issue preclusion. I could see a situation where what you're suggesting is that without having statutes in the case law provide the claimant with the opportunity to identify the weakness in the board's decision. And they go back and they have the opportunity under the particular case in the veteran court precedent with respect to post remand submission of evidence and argument to do that. And they don't. And whether you call it issue preclusion or whether you call it finally deciding a final waiver of an opportunity that a situation could arise in which the veteran court would be within its discretion to say, no, this type of thing should have been raised to the board brought to its attention made some to the agency along the lines of even when the board already has an obligation to consider that. I think you get, I mean, you get back to the question of how reasonable the evidence rate is raised with respect to the issue that's presented. So a factor in the analysis would be, well, if it's really obvious that they should have picked this up, then the board should have picked it up. And the fact that the appellant didn't raise it to them doesn't matter. The board should have picked it up. If it's less obvious, then the things we point out to our brief respect to mandate rule and other things like that can factor in to the veteran's court's decision as to whether or not enough is enough. The remand processes should end because everyone had an opportunity to make their arguments and they did and they didn't make that argument. Well, let's say hypothetically, in this case, the veteran's court had found the board air because it didn't look at this 2005 report. So there's no dispute that they didn't look at it unlike here where I think actually they probably did and just discarded it. Let's just assume the board specifically did not look at it and the veteran's court found that that's an air. And that's probably a reasons and basis remand or some other kind of remand
. And whether you call it issue preclusion or whether you call it finally deciding a final waiver of an opportunity that a situation could arise in which the veteran court would be within its discretion to say, no, this type of thing should have been raised to the board brought to its attention made some to the agency along the lines of even when the board already has an obligation to consider that. I think you get, I mean, you get back to the question of how reasonable the evidence rate is raised with respect to the issue that's presented. So a factor in the analysis would be, well, if it's really obvious that they should have picked this up, then the board should have picked it up. And the fact that the appellant didn't raise it to them doesn't matter. The board should have picked it up. If it's less obvious, then the things we point out to our brief respect to mandate rule and other things like that can factor in to the veteran's court's decision as to whether or not enough is enough. The remand processes should end because everyone had an opportunity to make their arguments and they did and they didn't make that argument. Well, let's say hypothetically, in this case, the veteran's court had found the board air because it didn't look at this 2005 report. So there's no dispute that they didn't look at it unlike here where I think actually they probably did and just discarded it. Let's just assume the board specifically did not look at it and the veteran's court found that that's an air. And that's probably a reasons and basis remand or some other kind of remand. But then they go on and say, but even though that's an air because the veteran refused didn't specifically raise this piece of evidence at the board, we're going to apply issue preclusion. Is that a proper interpretation of issue preclusion? Probably not. Okay, I just want to see how far you're pushing it. I understand why you don't want to concede that you can never use issue preclusion for evidentiary things because I like you. I might find some rare things. This one seems if you assume that the board didn't consider a step too pro. But again, I think as your honours pointed out earlier, you have Bernclaw and Hartman that are present in this court. And the presumption is that it was considered, especially when there's some suggestion by the board that they did consider it and even though they didn't analyze it, it makes perfect sense that it wasn't analyzed. It seems like that would have been the better argument for the secretary to make to the veterans court and for the veterans court to buy off on rather than this extension of issue preclusion. Possibly. I'll be back in a few minutes
. But then they go on and say, but even though that's an air because the veteran refused didn't specifically raise this piece of evidence at the board, we're going to apply issue preclusion. Is that a proper interpretation of issue preclusion? Probably not. Okay, I just want to see how far you're pushing it. I understand why you don't want to concede that you can never use issue preclusion for evidentiary things because I like you. I might find some rare things. This one seems if you assume that the board didn't consider a step too pro. But again, I think as your honours pointed out earlier, you have Bernclaw and Hartman that are present in this court. And the presumption is that it was considered, especially when there's some suggestion by the board that they did consider it and even though they didn't analyze it, it makes perfect sense that it wasn't analyzed. It seems like that would have been the better argument for the secretary to make to the veterans court and for the veterans court to buy off on rather than this extension of issue preclusion. Possibly. I'll be back in a few minutes. Thank you, Mr. Hawke. I'm Mr. Alakwa has a few minutes. The question for whether or not exhaustion can apply to any particular argument is whether or not the issue was presented to the board under 7104A, not under the pleadings by the veteran and the veterans court, not by the pleadings by the veteran to the board. The issue is whether 7104 place and the evidence of record places the issue before the board. What we have here, you heard the discussion between the colloquy, between Judge Hughes and Mr. Hawke. And I'm thinking to the tail end of that discussion, are you saying there could never be a situation where the exhaustion doctrine could properly be applied to prevent a new issue from being raised? For example, say you had a joint remand motion and an order following that motion and it very specifically spelled out said, all right, the board is to go back and look at items of evidence ABCD and E no more than that. And then following that the board looks at ABCD and the case comes back up and the veteran raises F. Now would you say that in that situation, even you could not have exhaustion as a bar? It would depend your honor on whether or not the prior board decision was vacated and its entirety
. Thank you, Mr. Hawke. I'm Mr. Alakwa has a few minutes. The question for whether or not exhaustion can apply to any particular argument is whether or not the issue was presented to the board under 7104A, not under the pleadings by the veteran and the veterans court, not by the pleadings by the veteran to the board. The issue is whether 7104 place and the evidence of record places the issue before the board. What we have here, you heard the discussion between the colloquy, between Judge Hughes and Mr. Hawke. And I'm thinking to the tail end of that discussion, are you saying there could never be a situation where the exhaustion doctrine could properly be applied to prevent a new issue from being raised? For example, say you had a joint remand motion and an order following that motion and it very specifically spelled out said, all right, the board is to go back and look at items of evidence ABCD and E no more than that. And then following that the board looks at ABCD and the case comes back up and the veteran raises F. Now would you say that in that situation, even you could not have exhaustion as a bar? It would depend your honor on whether or not the prior board decision was vacated and its entirety. And we've seen cases where, for example, the veterans court will say we affirmed the board's decision with regard to secondary service connection, but we're remanding strictly the issue of direct service connection. That could be a case where the board only needs to address direct service connection on remand. But if the veterans court and even if a joint motion for remand vacates the entire board's decision, now we have no final board decision on the issue of service connection. And 7104 is the only statute that describes what is supposed to happen in a final board decision. And the board's decision can't just be limited to certain pieces of evidence because the board also needs to look at how those pieces of evidence interact. But if that joint motion for remand, because it seems to me that if it's a narrow order, what they're going to do is not vacate. They're going to say you maybe didn't consider these five pieces of evidence properly look at them again. But if it's not vacated, then it's okay, isn't it, for the board to confine its review to those things directed by the veterans court. And unless you raise additional things, it wasn't incumbent upon the board to look for it there. I think that I agree that it's hard to not the case you have here. I agree that's not your case
. And we've seen cases where, for example, the veterans court will say we affirmed the board's decision with regard to secondary service connection, but we're remanding strictly the issue of direct service connection. That could be a case where the board only needs to address direct service connection on remand. But if the veterans court and even if a joint motion for remand vacates the entire board's decision, now we have no final board decision on the issue of service connection. And 7104 is the only statute that describes what is supposed to happen in a final board decision. And the board's decision can't just be limited to certain pieces of evidence because the board also needs to look at how those pieces of evidence interact. But if that joint motion for remand, because it seems to me that if it's a narrow order, what they're going to do is not vacate. They're going to say you maybe didn't consider these five pieces of evidence properly look at them again. But if it's not vacated, then it's okay, isn't it, for the board to confine its review to those things directed by the veterans court. And unless you raise additional things, it wasn't incumbent upon the board to look for it there. I think that I agree that it's hard to not the case you have here. I agree that's not your case. The facts are different from that, from the hypothetical that I've posited. But focus on that hypothetical and that just use was asking about. It's hard to imagine however how the veterans court could send an issue back without vacating the board's decision because 7261A says they can set aside findings and decisions. But sending it back only to look at specific pieces of evidence without vacating the board's decision. If they're doing that, then they're leaving the board's prior final denial of the claim in place. So it's difficult to imagine how the veterans court could actually do such a thing. I understand, but let's assume they can. If I assume, basically I think what we're getting at is it's a veterans court directs a specific limited remand. The board complies with that. The veteran doesn't raise any new arguments or evidence or anything while it's at the board and then tries to do it on appeal again to the veterans court after that limited remand. That seems like a proper place for issue per glution, even if it's an evidentiary issue
. The facts are different from that, from the hypothetical that I've posited. But focus on that hypothetical and that just use was asking about. It's hard to imagine however how the veterans court could send an issue back without vacating the board's decision because 7261A says they can set aside findings and decisions. But sending it back only to look at specific pieces of evidence without vacating the board's decision. If they're doing that, then they're leaving the board's prior final denial of the claim in place. So it's difficult to imagine how the veterans court could actually do such a thing. I understand, but let's assume they can. If I assume, basically I think what we're getting at is it's a veterans court directs a specific limited remand. The board complies with that. The veteran doesn't raise any new arguments or evidence or anything while it's at the board and then tries to do it on appeal again to the veterans court after that limited remand. That seems like a proper place for issue per glution, even if it's an evidentiary issue. I think it would need to be very, the veterans court would need to be very direct and specific in order for that to succeed. They would need to be in the van probably not going to agree to that kind of limited remand anyway, but hypothetically it could happen. That's correct. Thank you, Council. Thank you, Madam Chair.
Ah Next case is Owen Boseman versus the Secretary of Veterans Affairs 2015-7020. Mr. Laquas. Good morning, Your Honours, and may it please the Court. The Veterans Court aired when it excused the Board of Veterans Appeals clear failure to consider relevant evidence and support for Mr. Boseman's claim. 38 U.S.C. Section 7104A imposes upon the Board of Veterans Appeals a duty independent of any argument specifically raised by the claimant to look at all the evidence of record and make its decision based on the entire record before it. But didn't the three opportunities to raise that and fail to do so? The argument, regardless of the arguments raised at the Veterans Court, this evidence, the 2005 VA examination, was before the Board at the time it made its decision. Therefore, contrary to the Veterans Court's interpretation of the law, the Board of Veterans Appeals had a full and fair opportunity to consider the impact of the 2005 VA examination on its decision. Your complaint is that the Board did not mention the 2005 decision? Our complaint is that the Board arrived at a finding that Mr. Boseman's impairments were related to substance abuse rather than PTSD without adequate consideration of this 2005 VA examination, which specifically states that his substance abuse is related to his PTSD. Because the Board, the Board in its decision, I'm looking at, I think this is 116 of the appendix, it says, in adjudicating the claim, the Board has reviewed all of the evidence in the Veterans Claims file, including any found in virtual VA in the 2005 exam was part of that file. But the Board never made any explanation as to why it found the 2002 VA examination's findings more probative than the 2005. Is your problem here the way the Veterans Court rejected this argument, not just because, because it seems to me that if the Veterans Court had said, you know, the Board said that thing that my colleague just quoted, and they considered all the evidence, we have to presume that they considered the 2005, I think it's the 2005 Dr. Sherport, and said, we'll presume that they considered it and rejected it and relied on the 2002. You wouldn't be here, would you, because that would be the Veterans Court saying that there was an adequate reasons and bases, and we can't review that. That would be correct, Your Honor. That would be an entirely different situation. What we have here is the Veterans Court not reaching the merits of the Board of Veterans Appeals decision by using their issue. Exactly, Your Honor. And I'm struggling a little bit with this because I do think that it seems to me that they may have legally expanded the scope of the issue, Proclusion Rule, erroneously. But I'm wondering whether that's actually true, or it's just a misapplication of the issue, Proclusion Rule, which even if we disagreed with would still be an application of law to fact that we can't review. Well, the reason that the reason it's not an application of law to fact is that here we have 7104A, which directs the Board to look at the 7th, regardless of what arguments are raised. Issue Proclusion cannot apply to something that the Board was supposed to address whether or not the Veteran raised it in the first place. Sims Proclusion. Well, but that's, I'd like to get away from talking about the viability of the issue Proclusion Rule altogether. I know you disagree with that, I think it's contrary to Sims. But let's assume that it's a good rule. I'm worried that they've expanded it to go beyond issue Proclusion to evidence Proclusion. And it seems to me that assuming that we accept that issue Proclusion is a good rule, even if the Board is required to look at everything in and articulate all legal theories, the issue Proclusion could still preclude it on a legal theory that was never raised until the Veteran Court. But here the legal theory is, and the legal argument is all about an earlier effective date, right? And so you've raised this all throughout, and all you've said to the Veteran Court was they didn't consider this piece of evidence. And that's not a new legal argument, is it? No, that's correct, Your Honor. It's not a new legal argument. It seems to me that that's an improper use of issue Proclusion. But does it go beyond the line of an improper application to an improper legal interpretation? I think that this Court can interpret the rule, and I think that that's what President says in Sims. And I think it's more consistent with this Court's precedent in Robinson that, and the recent case of Scott, that when it comes to the Board's duty to consider evidence, an argument based on a failure to comply with that duty, issue Proclusion cannot apply to that situation. Because of the existence of 7104. There's no new legal issue that's being raised for the First Amendment. Precisely. He'll feed just additional argument, evidentiary argument, in favor of that legal argument that's already been raised to the Board. That's exactly correct, Your Honor. There is no need. Just to pick up. So what you're saying is what you're saying that 7104 prevents the exhaustion rule from being used when evidence is involved. Is that it? That's right, because the Board needed to do this, whether or not the veteran raised the argument to the Board about the evidence, because the Board needed to consider that evidence, and as part of that consideration determining its relevance, and how that would affect its ultimate decision, there is no question of exhaustion in this case, because the issue was before the Board of the Time it made its decision in light of the statute passed by Congress. So you would say that maggot or maje doesn't speak to this, it speaks to legal issues. I would argue first that in that case, in that case, we had not a question of looking at evidence, but two legal issues that were raised. Well, first of all, that case came before Sim, so I would argue that Sim, let's assume Sim did not overrule that case. I think Scott here is instructive because Scott looks at a narrow exception to the rule in Sim's, where if there is a procedural issue, something that would have been on the veteran to raise in the first place, upon being notified, you have not renewed your request for a hearing, he didn't then come back and say. What about the fact here, Mr. Arthur, that we have a little bit of an unusual, but a little bit of a different situation. We are not here talking about a direct appeal up from the BVA, where the CAVC said, no, you didn't raise this before the BVA. We are looking at this in the setting of a situation where there was a joint motion for remand, very specifically pointing the board to two issues, one of which the TDIU wasn't before us anymore, but isn't that a different situation here? I mean, what is wrong in that situation of applying the exhaustion requirement to a fact? Two responses to that, Eron, are first and foremost, the joint motion for remand in this case, expressly left open the board's duty to look at all of the evidence of record, conduct a critical examination of the justification for its prior decision, and address all issues of fact and law presented on the record. So the board was actually expressly directed to comply with all of those statutory duties on remand. There's really nothing additional that could have been done to trigger the board's duties to comply with the statutes that are already on the plunder. If we apply this exhaustion rule here, isn't it going to either require the veterans when they agree to a joint remand motion to list specifically every single piece of evidence they won't reconsider? Or when it goes back to the board and file another brief to the extent they have an opportunity saying every single piece of evidence or to say, look at everything. That's right, Eron. I mean, the thing that's difficult for me about this case is that it seems like it's hard to tell one way or another because the board didn't specifically say it, but they had the record before it. So we would normally, I think, presume that they did look at this and just didn't find the 2005 report persuasive. And seems like the veteran's court should have said that on the merits. If that's what they thought, rather than use this loophole to duck the merits argument. And I, you know, I think that's correct. Your honor. We're not we don't know exactly what the veterans court may have found. They may have found that the board's failure to discuss this 2005 examination was prejudicial because on remand, the board might find that the 2005 examination was more provative, you know, but that's not before the court, of course, because the veterans court went around this issue entirely using this exhaustion rule. And the fact of the matter is, Your Honor, there's only one statute that gives the board jurisdiction to make a decision on a claim and that's 7104. And Congress could have if they wish to when they passed the VJRA put a second statute right beside that saying for cases coming back from the veterans court, the board's duties are narrowed. They only need to address what the veterans court did, but Congress chose not to do so. No, that's okay. You're right. Okay. I'll tell you about that. So if the panel has no further questions, I'll simply reserve the remainder of my time for a bottle. We'll do that Mr. Murrow. Thank you, Mr. Hawking. Please, Court. So I guess we're talking about this case in terms of whether or not the veterans court precluded somebody or affirmed the board's failure to consider evidence, which I think in response to Judge's use of own observations calls into question the presumption that the board and Judge Charles noted the beginning with respect to the site to the record. The presumption that the board did consider all the evidence in the court. But they didn't say that. I'm sure you listened to the questions. It seems to me a little troubling that they're extending this issue preclusion rule, which I think we're being called on to a rule altogether. I'm not sure that that's correct, but they're extending it to a pretty far extreme that's going to, in essence, require veterans to do some kind of specific pleading on remands or on the like about every single specific piece of evidence. They want the board to look at in terms of their argument. And that seems to me to be an awful burden imposed on veterans, particularly a lot of them that are underrepresented. Why isn't this issue preclusion rule confined only to legal arguments that weren't raised in time instead of evidentiary arguments in support of a legal argument that has been raised? Well, the decision here could have been better in the sense that it could have described specifically what had already been done by the board. And in this case, when you look at the entire record, it's clear that in 2012 the board looks at this question of whether he's, whether Mr. Boseman's entitled to an increased, remember, he's already been service connected and that's had a rating going back to 93. So the precise question after the first board's decision, which found that he was 70% entitled from February 2003 on, but 50% prior, was whether he was entitled to 70% for the 18 months prior to February 2003. That was the issue that was raised and the argument raised before the veterans court was that there was evidence in the record with respect to the 2002 medical opinion that suggested that perhaps he had the medicine was causing him problems, but they couldn't tell what the medicine was that the board was referring to. Was it the medicine that he was taking for his PTSD, which would seem to suggest perhaps maybe he deserved an increase, or was it recreational drug use that was causing this? So that's the issue that's presented. And so that's the issue that's for us. I understand all this. If the veterans court had said, you know, the board looked at all this and they even though they didn't specifically cite the 2005 report, they presumably looked at it. And their decision rejecting in the earlier effective date is not clearly aronious and sort of by evidence that be fine, but they didn't say that they said it weighs in favor of those invoking exhaustion doctrine, not to even considered the argument about whether there was a reason some basis deficiency or not citing the 2005 thing. That seems to me to be different than just saying they probably considered it without citing it. I think that the argument that see as I understand the argument that was presented to the veterans court, it was that there was an error in not understanding that the 2005 document was a was an interpretation of the 2002 document. But the issue before the point that's a new legal argument, I think it's a new. Can I just step back from the facts in this case? Do you agree that it's not appropriate to apply this issue exhaustion rule to evidentiary pieces of evidence that have maybe weren't specifically pointed out, but were in the record and the board was required to look at? I think that generally no, but I could see possibly exceptions depending upon the nature of the argument. Well, if the evidence are pointing to implicate a new legal theory, of course, and that's issue preclusion because it's a new legal theory. But here, there's no new legal theory. Everybody's arguing about effective date. The VA was certainly on notice that that's what the veteran was arguing about. He just pointing to a new piece of evidence saying I'm not sure though. Frankly, when you read the entire briefing before this court, there's suggestion that the argument really is turning into a secondary service connection argument that by reading the 2005 opinion that's a suggestion that's not what the veterans court says. The veterans court doesn't say that. No, the veterans court just said that they weren't going to entertain this new argument, but you're right. They don't say that in the case. It is not a new legal argument though. It's a new evidentiary argument. Well, to the extent someone is arguing that a 2005 medical opinion actually supports an argument in behalf of secondary service connection, that's a new claim to new issue to new argument. So, you know, that that would be subject to issue preclusion and I'm prepared to address that, but. Well, no, but that's not. I mean, the veterans court didn't phrase it that way. No, the veterans court doesn't in turn said this is an piece of evidence that they didn't specifically point out to the board and therefore we're going to apply exhaustion. And my response to the if that is a correct reading of what happened here, I know you dispute that somewhat. But that's a correct reading. Then isn't the implication of the board of the veterans court decision that they think issue exhaustion can apply to evidentiary to the requirement to consider all the evidence at the second time. I mean, if that's the reading, then then you know, that would you think that's a correct reading if that's the reading. I don't think that's a I don't think that's a correct reading, but I don't think that's what happened. I do think that what happened here is simply that the veterans court determined that the issue before them, the issue before the board at the whole the whole time was this 18 month period about increased service connection. And then that was what the board addressed and that the 2001 and 2002 medical opinions were more probative of that period of time than was a 2005 medical opinion. And so therefore it's not an error in the part of the court to not, or to the board to not reference 2005. So that would be great and you would definitely win if that's what the veterans court had said or at least I think you would definitely win. Sorry. But they didn't say that and they're using this procedural loophole in a way that to me if we continue to allow the veterans court to do this and allow the secretary to argue this issue preclusion rule in a broad way. And so that's why the veteran court seems to burn veterans in a way that the system wasn't intended to do. But here's the problem. And there's ways to deal with this without you know reversing. Because frankly what the board did here, which is really what what's that issue was proper. They looked at the issue that was presented. They focused on the pertinent probative evidence cited the fact that they had, I mean the problem here is not with the board. The problem is with the veteran court and the secretary urging this issue preclusion rule at the veteran court and the veteran court buying off on it. But a remand, it doesn't just encourage the secretary to expand the use of this even more. It depends on what grounds you affirm. I mean, I know this could be sensitive, but we can't affirm what grounds that the veterans court didn't rely on. You could find that any remand at this point isn't necessary because the board did, the agency did what it was supposed to do here. So you're suggesting it sounds to me like your harmless hair. You mean what you didn't put in your briefs? No, but that's because to be problematic with our jurisdictional statute anyway. We, you know, we look at this case as one suggesting that a new issue was being raised, consistent with what the Fetchon Court said, despite the fact that the argument is that evidence wasn't considered really what's being argued here as a basis for increased in the rating. And the two pertinent contenders are in this medical. So I understand your point. I just want to be very clear about and make sure I know where you are on this point because I think you agreed that if the veterans court interpretation of issued preclusion extends to a rule that would allow it to refuse to consider argument about certain pieces of evidence unless they were specifically raised to the board on remand by the veteran. And that that's an incorrect legal interpretation of issue preclusion. I'm going to respond as long as it pertains to a legal issue that has been raised. That's the presumptive. If the legal issue has been raised, the fact that on appeal after a remand, after a remand, the veteran points to evidence that was in the record that was supposed to have been considered, but may not have been specifically pointed out by the veteran. That is not far from the issue preclusion. I could see a situation where what you're suggesting is that without having statutes in the case law provide the claimant with the opportunity to identify the weakness in the board's decision. And they go back and they have the opportunity under the particular case in the veteran court precedent with respect to post remand submission of evidence and argument to do that. And they don't. And whether you call it issue preclusion or whether you call it finally deciding a final waiver of an opportunity that a situation could arise in which the veteran court would be within its discretion to say, no, this type of thing should have been raised to the board brought to its attention made some to the agency along the lines of even when the board already has an obligation to consider that. I think you get, I mean, you get back to the question of how reasonable the evidence rate is raised with respect to the issue that's presented. So a factor in the analysis would be, well, if it's really obvious that they should have picked this up, then the board should have picked it up. And the fact that the appellant didn't raise it to them doesn't matter. The board should have picked it up. If it's less obvious, then the things we point out to our brief respect to mandate rule and other things like that can factor in to the veteran's court's decision as to whether or not enough is enough. The remand processes should end because everyone had an opportunity to make their arguments and they did and they didn't make that argument. Well, let's say hypothetically, in this case, the veteran's court had found the board air because it didn't look at this 2005 report. So there's no dispute that they didn't look at it unlike here where I think actually they probably did and just discarded it. Let's just assume the board specifically did not look at it and the veteran's court found that that's an air. And that's probably a reasons and basis remand or some other kind of remand. But then they go on and say, but even though that's an air because the veteran refused didn't specifically raise this piece of evidence at the board, we're going to apply issue preclusion. Is that a proper interpretation of issue preclusion? Probably not. Okay, I just want to see how far you're pushing it. I understand why you don't want to concede that you can never use issue preclusion for evidentiary things because I like you. I might find some rare things. This one seems if you assume that the board didn't consider a step too pro. But again, I think as your honours pointed out earlier, you have Bernclaw and Hartman that are present in this court. And the presumption is that it was considered, especially when there's some suggestion by the board that they did consider it and even though they didn't analyze it, it makes perfect sense that it wasn't analyzed. It seems like that would have been the better argument for the secretary to make to the veterans court and for the veterans court to buy off on rather than this extension of issue preclusion. Possibly. I'll be back in a few minutes. Thank you, Mr. Hawke. I'm Mr. Alakwa has a few minutes. The question for whether or not exhaustion can apply to any particular argument is whether or not the issue was presented to the board under 7104A, not under the pleadings by the veteran and the veterans court, not by the pleadings by the veteran to the board. The issue is whether 7104 place and the evidence of record places the issue before the board. What we have here, you heard the discussion between the colloquy, between Judge Hughes and Mr. Hawke. And I'm thinking to the tail end of that discussion, are you saying there could never be a situation where the exhaustion doctrine could properly be applied to prevent a new issue from being raised? For example, say you had a joint remand motion and an order following that motion and it very specifically spelled out said, all right, the board is to go back and look at items of evidence ABCD and E no more than that. And then following that the board looks at ABCD and the case comes back up and the veteran raises F. Now would you say that in that situation, even you could not have exhaustion as a bar? It would depend your honor on whether or not the prior board decision was vacated and its entirety. And we've seen cases where, for example, the veterans court will say we affirmed the board's decision with regard to secondary service connection, but we're remanding strictly the issue of direct service connection. That could be a case where the board only needs to address direct service connection on remand. But if the veterans court and even if a joint motion for remand vacates the entire board's decision, now we have no final board decision on the issue of service connection. And 7104 is the only statute that describes what is supposed to happen in a final board decision. And the board's decision can't just be limited to certain pieces of evidence because the board also needs to look at how those pieces of evidence interact. But if that joint motion for remand, because it seems to me that if it's a narrow order, what they're going to do is not vacate. They're going to say you maybe didn't consider these five pieces of evidence properly look at them again. But if it's not vacated, then it's okay, isn't it, for the board to confine its review to those things directed by the veterans court. And unless you raise additional things, it wasn't incumbent upon the board to look for it there. I think that I agree that it's hard to not the case you have here. I agree that's not your case. The facts are different from that, from the hypothetical that I've posited. But focus on that hypothetical and that just use was asking about. It's hard to imagine however how the veterans court could send an issue back without vacating the board's decision because 7261A says they can set aside findings and decisions. But sending it back only to look at specific pieces of evidence without vacating the board's decision. If they're doing that, then they're leaving the board's prior final denial of the claim in place. So it's difficult to imagine how the veterans court could actually do such a thing. I understand, but let's assume they can. If I assume, basically I think what we're getting at is it's a veterans court directs a specific limited remand. The board complies with that. The veteran doesn't raise any new arguments or evidence or anything while it's at the board and then tries to do it on appeal again to the veterans court after that limited remand. That seems like a proper place for issue per glution, even if it's an evidentiary issue. I think it would need to be very, the veterans court would need to be very direct and specific in order for that to succeed. They would need to be in the van probably not going to agree to that kind of limited remand anyway, but hypothetically it could happen. That's correct. Thank you, Council. Thank you, Madam Chair