[00:00:04] Speaker 03:
The first case for argument this morning is 14-7117, Allen v. McDonald.

[00:00:10] Speaker 03:
Mr. Morton, whenever you're ready.

[00:00:14] Speaker 00:
Court please, my name's Meyers Morton and I want to apologize in advance.

[00:00:19] Speaker 00:
I'm sort of hard of hearing so I sometimes speak too loudly and if I do that I apologize.

[00:00:25] Speaker 00:
I represent a widow of a Vietnam veteran.

[00:00:29] Speaker 00:
who's the epitome of the hero.

[00:00:30] Speaker 00:
He's a Bronze Star recipient.

[00:00:33] Speaker 00:
He was service-connected for PTSD and hearing loss.

[00:00:37] Speaker 00:
He also, when he was in Vietnam, was soaked with Agent Orange, which led to prostate cancer.

[00:00:43] Speaker 00:
He was 100% service-connected also for prostate cancer.

[00:00:49] Speaker 00:
There's enough medical evidence in this record to show that he died.

[00:00:53] Speaker 00:
from the prostate cancer, either led to his brain cancer or it contributed to his demise.

[00:00:59] Speaker 03:
But I'm sure you appreciate that the difficulty is that that's not really our job here on appeal.

[00:01:08] Speaker 03:
I mean, this case was done on the VA and at the Board and at the Veterans Court and they evaluated the evidence.

[00:01:17] Speaker 03:
and that's not really what we're in a position to do here.

[00:01:20] Speaker 00:
Yes, Your Honor.

[00:01:21] Speaker 00:
I'm not asking the Court to evaluate the evidence.

[00:01:24] Speaker 00:
My whole argument is the law requires the Secretary to make a shall.

[00:01:34] Speaker 00:
It's 38 USC 511.

[00:01:37] Speaker 00:
The Secretary shall decide all questions of law and fact necessary to make a decision.

[00:01:43] Speaker 00:
And Virginia law apparently, I'm a Tennessee lawyer, I'm not a Virginia lawyer, but Virginia law apparently says on a death certificate which was the reason the board gave to turn down her claim for compensation because the Virginia death certificate does not say prostate cancer led to his death.

[00:02:05] Speaker 00:
So that wasn't the only ground upon which... It's the first one, it's the very first paragraph.

[00:02:10] Speaker 02:
So even if it were true that the doctor who signed the death certificate wasn't authorized by Virginia law to sign the death certificate, you don't dispute that the doctor was qualified to practice medicine and make medical determinations, do you?

[00:02:28] Speaker 00:
Well, in Tennessee, Virginia law said the doctor had to be the primary care physician at the end of life, and she wasn't.

[00:02:35] Speaker 00:
The doctor, Hamadi, wasn't his doctor three months before his death.

[00:02:40] Speaker 00:
She's a Tennessee doctor, she's not a Virginia doctor.

[00:02:44] Speaker 00:
Virginia law says it has to be, it reads that way, but I don't even know if that was the law when he died.

[00:02:53] Speaker 00:
And my point is the law says this federal agency is required to make that determination if this certificate is legal and valid.

[00:03:03] Speaker 00:
And they didn't.

[00:03:04] Speaker 00:
They completely ignored the issue.

[00:03:06] Speaker 00:
Maybe it was inconvenient.

[00:03:08] Speaker 00:
Maybe it was too much work.

[00:03:09] Speaker 00:
But my whole point, my whole argument is the law says they shall decide all questions of law and fact necessary to make a decision.

[00:03:19] Speaker 00:
And the board

[00:03:20] Speaker 00:
clearly relied upon that death certificate.

[00:03:22] Speaker 00:
Without the death certificate, there's an approximate balance of positive and negative evidence.

[00:03:27] Speaker 01:
But didn't the Veterans Court expressly find that Dr. Hamadi was in charge of Ms.

[00:03:32] Speaker 01:
Allen's care at the time of his death?

[00:03:34] Speaker 01:
I thought that I remember that expressly in their opinion.

[00:03:38] Speaker 01:
And that's a fact-finding, and we can't unravel those.

[00:03:41] Speaker 01:
We have no jurisdiction to.

[00:03:42] Speaker 00:
And I'm not asking the Court to make any to question their fact-finding.

[00:03:47] Speaker 00:
the board didn't even touch the illegality of the Virginia death certificate.

[00:03:52] Speaker 00:
They didn't even touch it.

[00:03:54] Speaker 00:
The Veterans Court, I mean, they ignored the issue.

[00:03:57] Speaker 03:
If the board of the Veterans Court had relied exclusively or predominantly on the issue of what the death certificate said, not the underlying conclusion, then I guess I could see your concern.

[00:04:11] Speaker 03:
But given, as Judge Moore alluded to, that there wasn't

[00:04:15] Speaker 03:
a reliant on the death certificate as a death certificate, it was really on a lot of medical evidence in the record, including that this person who signed it was a physician.

[00:04:27] Speaker 03:
But they didn't per se say, death certificate says this, that's the end of the story, right?

[00:04:33] Speaker 00:
That's where this court's decision in Cushman comes in.

[00:04:36] Speaker 00:
It's in the record.

[00:04:38] Speaker 00:
It tainted the record.

[00:04:40] Speaker 03:
Any reasonable, trier fact... Well, in Cushman, the facts were a little different, as I recall, right?

[00:04:46] Speaker 03:
I mean, in Cushman, that was... It was one question, and the one fact that everybody relied on was clearly a tainted fact.

[00:04:53] Speaker 03:
Here, this is just one piece of the record and there's other lots of medical evidence that the Board and the Veterans Court relied on that was different than this.

[00:05:03] Speaker 03:
So this is really beyond Cushman in terms of what you're alleging, is it not?

[00:05:08] Speaker 00:
I understand your Honor, but the medical evidence is evenly balanced.

[00:05:11] Speaker 00:
There's an approximate balance.

[00:05:13] Speaker 03:
That's what you may say, but we don't evaluate.

[00:05:18] Speaker 03:
The problem is, I'm sure you know, we have a very limited authority in these cases, and it doesn't include looking and re-evaluating the evidence.

[00:05:29] Speaker 00:
That's correct, Your Honor, and I'm not asking you to.

[00:05:31] Speaker 00:
I'm saying that there's an issue.

[00:05:34] Speaker 00:
on whether or not this tainted evidence is valid in Virginia law and they ignored it.

[00:05:40] Speaker 02:
But the problem is, in Cushman there actually was an altered medical document, right?

[00:05:45] Speaker 02:
I mean, so that there was a...

[00:05:48] Speaker 02:
a false statement in the medical record.

[00:05:51] Speaker 02:
And here, you're saying that perhaps, and you don't even know for sure because if Dr. Hamadi was actually licensed in Virginia to also practice law, you're not limited to, I mean, practice medicine, you're not limited to only one state necessarily if you get authorized to practice in other states, or if you're practicing in a federal facility, it's possible.

[00:06:10] Speaker 02:
that she's authorized because of her federal connection to the VA.

[00:06:14] Speaker 02:
I mean, you're just guessing that she couldn't sign this, right?

[00:06:19] Speaker 00:
That's correct, but the law says the secretary shall decide that.

[00:06:25] Speaker 00:
That's my point.

[00:06:27] Speaker 00:
The board ignored the issue.

[00:06:30] Speaker 02:
The court of appeals put the... But you're not saying that there's anything about

[00:06:35] Speaker 02:
the opinion that Dr. Hermadi expressed in the form of a death certificate that is tainted or improper in any way.

[00:06:43] Speaker 02:
You're just saying that because it's on a death certificate that somehow they shouldn't have been allowed to consider it.

[00:06:48] Speaker 00:
Your Honor, I'm saying that she wasn't authorized by the Virginia law, apparently,

[00:06:53] Speaker 00:
to sign and give an opinion on the decedent's cause of death.

[00:06:58] Speaker 00:
In Virginia law, she can't do that.

[00:07:01] Speaker 00:
She's a Tennessee doctor.

[00:07:03] Speaker 00:
She's not a Virginia doctor.

[00:07:05] Speaker 00:
I'm not licensed in Virginia, so I've been committing malpractice to give my client advice about Virginia law.

[00:07:13] Speaker 00:
That's an issue.

[00:07:14] Speaker 00:
The very first reason the board gave was that death certificate.

[00:07:20] Speaker 00:
In the body of their opinion, it was the main reason that they denied this claim.

[00:07:26] Speaker 00:
I don't think the board or this federal agency should be able to ignore this law that says they shall decide all questions.

[00:07:36] Speaker 00:
I don't understand the argument where they say that this widow did not bring the issue up before the board.

[00:07:43] Speaker 00:
It's clearly she brought it up.

[00:07:45] Speaker 00:
It's in her testimony.

[00:07:46] Speaker 00:
She doesn't understand how a Tennessee doctor can sign a Virginia death certificate.

[00:07:51] Speaker 00:
And it just seems to me that if the court plays that this was an inconvenient law and they didn't want to follow it, the question the appellant is, does the federal agency require to follow the law?

[00:08:07] Speaker 00:
Thank you.

[00:08:14] Speaker 04:
May it please the court.

[00:08:15] Speaker 04:
Your honor, Mrs. Allen has raised a constitutional issue, name only.

[00:08:19] Speaker 04:
The true substance of the appeal is a challenge to a complex, to challenge the board's complex determination of a factual issue that this court cannot review.

[00:08:28] Speaker 04:
You might want to speak up.

[00:08:29] Speaker 04:
I mean, we're having a hard time hearing you.

[00:08:32] Speaker 04:
I'm sorry, Your Honor.

[00:08:34] Speaker 04:
The constitutional issue isn't raised in name only.

[00:08:38] Speaker 04:
At the bottom, this case is a challenge to the board's resolution of a complex factual issue.

[00:08:43] Speaker 02:
Well, did she raise the question in her testimony?

[00:08:46] Speaker 02:
She at least questioned how this doctor could sign a test certificate, didn't she?

[00:08:51] Speaker 04:
Yes, Your Honor.

[00:08:52] Speaker 04:
It's in her testimony.

[00:08:53] Speaker 04:
And we acknowledge there's some confusion among the board.

[00:08:58] Speaker 04:
in that path was decided whether or not what specifically she was raising.

[00:09:03] Speaker 04:
However, if we can see that it was raised before the board, the Veterans Court expressly exercised its discretion.

[00:09:10] Speaker 04:
The Veterans Court first said,

[00:09:11] Speaker 04:
It wasn't raised before the board.

[00:09:13] Speaker 04:
However, on page 15 of the supplemental appendix in the Veterans Court's opinion, it exercised its discretion and it directly resolved this issue.

[00:09:21] Speaker 04:
And it found that Dr. Pomati or the death certificate was not inappropriately signed, that it was a valid document.

[00:09:28] Speaker 04:
So we believe that section 511, to the extent it was not reached before the board, the Veterans Court directly addressed it.

[00:09:36] Speaker 02:
But did the Veterans Court actually do an analysis of Virginia law?

[00:09:40] Speaker 04:
Yes, Your Honor.

[00:09:43] Speaker 04:
The court directs attention to page 9 of the Veterans Court's opinion, which is page 15 of the supplemental appendix.

[00:09:56] Speaker 04:
And there's a full paragraph discussing whether or not Dr. Ramadi could sign the death certificate and determine that there was no issue with the death certificate.

[00:10:09] Speaker 04:
So the issue was directly considered by the Veterans Court.

[00:10:16] Speaker 04:
And beyond, if the court were to get to this issue of was there a due process violation, as discussed earlier, this case is not Cushman.

[00:10:32] Speaker 04:
As we pointed out in our brief,

[00:10:34] Speaker 04:
In Cushman, the one piece of evidence was an altered medical opinion.

[00:10:39] Speaker 04:
Here, there has been no suggestion that the death certificate does not accurately reflect Dr. Hamadi's professional medical judgment on whether or not Mr. Allen's death was service-connected.

[00:10:50] Speaker 04:
Indeed, after issuing the death certificate, she was approached subsequently by a private physician on behalf of Mrs. Allen to ask her to change her opinion, and she reaffirmed it.

[00:11:03] Speaker 04:
So there's no question that... Is that part of this record?

[00:11:06] Speaker 04:
Yeah, yes, your honor.

[00:11:07] Speaker 04:
It's in the court's, the Veterans Court's opinion that Dr. Beto Cruz submitted a letter on behalf of Mrs. Allen asking Dr. Amati to reconsider listing prostate cancer on the death certificate.

[00:11:19] Speaker 04:
And she said, again, no, I affirm my medical opinion.

[00:11:22] Speaker 02:
So again, in Cushman, there was... You're kind of overstating some of your facts here, which is making me a little uncomfortable.

[00:11:28] Speaker 02:
Like you said that the Veterans Court specifically found that she was authorized by Virginia law.

[00:11:33] Speaker 02:
It didn't make any such findings.

[00:11:34] Speaker 02:
It just said that there hadn't been enough evidence presented for them to make that determination.

[00:11:42] Speaker 02:
And if in fact it's true that the legal issue was supposed to be resolved by the board, the Veterans Court saying we don't have enough information to make that determination doesn't answer the question.

[00:11:53] Speaker 04:
If we overstated the facts.

[00:11:55] Speaker 02:
And Dr. Hermani didn't, Dr. Hermani simply refused to, or didn't act.

[00:12:00] Speaker 02:
There wasn't like an affirmative statement that I thought this through and I really think I'm right.

[00:12:04] Speaker 02:
I mean, you're overstating the facts.

[00:12:08] Speaker 04:
Your Honor, I believe on the issue of when Dr. Hermadi was approached subsequently, she declined.

[00:12:14] Speaker 04:
She was specifically asked a list.

[00:12:16] Speaker 02:
Right, and she declined, period.

[00:12:18] Speaker 04:
Yes, so she declined to change her original medical opinion.

[00:12:21] Speaker 02:
I know, but the way you're presenting it is that she went back in and rethought about it and made this

[00:12:26] Speaker 02:
profound statement that she was absolutely sure she was right.

[00:12:30] Speaker 02:
She didn't do that.

[00:12:30] Speaker 02:
She just declined.

[00:12:31] Speaker 04:
The record does not reflect what steps she took before.

[00:12:34] Speaker 02:
You have to be a little careful.

[00:12:37] Speaker 02:
You're misstating the record.

[00:12:38] Speaker 02:
Now that's twice in just a few minutes.

[00:12:40] Speaker 02:
So if you want to make your argument, make your argument, but don't tell us things in the record that aren't there.

[00:12:49] Speaker 04:
To get back to the constitutional issue is this case is distinguishable from Cushman because the substantive medical opinion is not being challenged.

[00:12:57] Speaker 04:
The death certificate reflects that.

[00:13:00] Speaker 01:
Dr. Amati's medical opinion... If there were a legal question about whether she was even a doctor,

[00:13:06] Speaker 01:
There was a question about whether she was authorized to sign, not because she was a Tennessee doctor versus a Virginia doctor, but whether she even held a valid medical license.

[00:13:15] Speaker 01:
If that was a question in dispute, would this be potentially a different case?

[00:13:23] Speaker 04:
It could, Your Honor, because then was she qualified to render an expert opinion on cause of death?

[00:13:29] Speaker 04:
And so that could be a different case, but that's not an issue here.

[00:13:33] Speaker 04:
There's no question, there's no suggestion that she's not a doctor.

[00:13:36] Speaker 04:
Not a valid doctor, she's practicing for the VA.

[00:13:43] Speaker 04:
And finally, Your Honor, as was discussed earlier, that the death certificate was one piece of medical evidence that was relied on, which also distinguished this case from Cushman.

[00:13:54] Speaker 04:
There were several medical opinions in the record, including that the cause of death was not service-connected.

[00:14:01] Speaker 04:
So the two critical distinctions between Cushman and this case is there's no question that the substantive medical opinion on the death certificate does not reflect the signing doctor's opinion, and that there was an array of evidence that was relied upon.

[00:14:16] Speaker 02:
Was Dr. Hamadi licensed to practice in Virginia?

[00:14:21] Speaker 04:
It's not on the record, and we did not verify that, Your Honor, if she held a Virginia license.

[00:14:27] Speaker 02:
So you're telling me that you don't know the answer?

[00:14:29] Speaker 04:
I don't know the answer right now, Your Honor.

[00:14:33] Speaker 04:
unless there's any further questions from the court, the government respectfully requests that the court either dismiss the case for lack of jurisdiction or affirm the veterans' rights opinion.

[00:14:41] Speaker 01:
Well, I have another question.

[00:14:42] Speaker 01:
So, in the section of the board's opinion that you directed us to at page nine,

[00:14:51] Speaker 01:
The board says even if Dr. Hamadi is not authorized to practice medicine in Virginia, it's not clear from the plain language of the statute that Dr. Hamadi would be disqualified from signing the death certificate because she nevertheless was a veteran treating oncologists at the time of death.

[00:15:10] Speaker 01:
That is a quintessential question of law, isn't it?

[00:15:12] Speaker 01:
I mean, if under Virginia law,

[00:15:15] Speaker 01:
the question to me is under Virginia law is a person, is a doctor allowed to sign a death certificate if they are a treating physician but not licensed to practice?

[00:15:26] Speaker 01:
And so it just seems a little strange to me that the board skirted that by saying it's not clear from the plain language of the statute.

[00:15:32] Speaker 01:
Do they have an obligation to resolve that?

[00:15:39] Speaker 04:
Your Honor, it's a question of Virginia law certainly, whether the

[00:15:45] Speaker 04:
whether Dr. Hamadi was authorized to find the death certificate.

[00:15:51] Speaker 04:
And the court there left that open.

[00:15:57] Speaker 03:
But that's the other side's point, right?

[00:16:02] Speaker 03:
I mean, they're saying the statutory violation here is that the statute quite clearly requires that the secretary decide all questions of law and fact.

[00:16:12] Speaker 03:
necessary to a decision.

[00:16:14] Speaker 03:
Now, we can argue about whether or not it's necessary for a decision or not, but given that that question was called out by the Court of Veterans Claims, it appears that that matter has some probative value in this.

[00:16:28] Speaker 04:
It could be probative to what, so the ultimate probative issue would be, was Dr. Mahdi authorized to sign this license?

[00:16:34] Speaker 04:
Was the death certificate valid?

[00:16:38] Speaker 04:
response is if the court determined the board should have decided that and they didn't decide that and that was an error.

[00:16:46] Speaker 04:
The question is was there a due process violation in that error because

[00:16:52] Speaker 04:
Going back to Cushman, the death certificate continues to reflect the issue of service.

[00:16:57] Speaker 03:
Well, let's just leave aside due process for a moment, and let's just look at the question of law, which I think is fairly presented here.

[00:17:05] Speaker 03:
I mean, you've got the statutory requirement that your friend cited to us earlier that says that the secretary shall do this.

[00:17:14] Speaker 03:
And so let's forget about due process for a second and talk about whether or not the statute was comported with.

[00:17:22] Speaker 03:
All right?

[00:17:23] Speaker 03:
So if, in fact, her qualification or disqualification for purposes of signing the death certificate was a matter that was in play, that was of some significance in the decision making here, why wasn't it incumbent under the section of the statute for the secretary to resolve that?

[00:17:44] Speaker 04:
There was the issue of was it fairly presented or was this presented before the board, before it got to the Veterans Court?

[00:17:52] Speaker 02:
Yeah, but you conceded to me that it was presented.

[00:17:58] Speaker 04:
We can see that there was an issue.

[00:18:00] Speaker 04:
There was confusion among the board.

[00:18:01] Speaker 02:
So the board didn't get exactly what she was saying, but she did say it.

[00:18:05] Speaker 04:
She did say it in her testimony.

[00:18:07] Speaker 02:
Yes.

[00:18:07] Speaker 02:
So, and if in fact, that's a tainted piece of evidence that the board should not have considered at all, what other evidence, you can't say, well, just because it's tainted, they can still look at what it says.

[00:18:20] Speaker 02:
If it's tainted, it can't be considered.

[00:18:22] Speaker 02:
So what else was there that if you don't have the death certificate at all,

[00:18:29] Speaker 02:
Is there sufficient evidence in the record for the board to make their determination?

[00:18:33] Speaker 04:
Yes, Your Honor.

[00:18:33] Speaker 04:
There are separate medical opinions from VA doctors, one of which was the chief oncologist from the VA Medical Center who reviewed the file and concluded

[00:18:46] Speaker 04:
prostate cancer did not cause death.

[00:18:48] Speaker 02:
Okay, but now we've got the problem of our level of review.

[00:18:52] Speaker 02:
If in fact we know they relied on tainted evidence, but we can't independently weigh the evidence, how can we say that in fact they can, that there's sufficient evidence in the record putting aside this death certificate?

[00:19:08] Speaker 04:
Your Honor, we would take issue with, even if the death certificate

[00:19:11] Speaker 04:
Even if this went back to the board or the RO and they decided, okay, the death certificate was not valid, it still is not painted evidence for the purpose that it was used.

[00:19:21] Speaker 04:
It was used to the medical opinion reflected on the death certificate.

[00:19:26] Speaker 04:
That medical opinion could have been on a death certificate, could have been on a separate memorandum, but the death certificate itself... Wouldn't you have to have a separate memorandum?

[00:19:34] Speaker 02:
That's the problem.

[00:19:35] Speaker 02:
Once the death certificate is an invalid document, how can the board say,

[00:19:39] Speaker 02:
Well, it's invalid as a matter of law.

[00:19:42] Speaker 02:
It is not a legal document, but we're going to consider what it says anyway.

[00:19:46] Speaker 04:
But the opinion on the death certificate is not invalid.

[00:19:50] Speaker 04:
That's the point.

[00:19:51] Speaker 04:
It's that medical judgment on the death certificate is not invalid, and that was what the difference is with Cushman.

[00:19:57] Speaker 04:
In Cushman, you had an altered medical opinion regarding the veteran's continued employability.

[00:20:04] Speaker 04:
The opinion reflected on this death certificate would be the same if it was reflected on a separate memorandum or a separate treatment record.

[00:20:15] Speaker 04:
If the death certificate is a red herring, unless there's anything further, the government respectfully requests that the battery support station be affirmed.

[00:20:32] Speaker 00:
By this record, Dr. Armani is not a Virginia doctor.

[00:20:39] Speaker 00:
And as far as the medical opinions, negative medical opinions and positive medical opinions both say it would have been best to get a biopsy.

[00:20:51] Speaker 00:
With a biopsy, we know for sure.

[00:20:53] Speaker 00:
But since we don't have a biopsy, nobody knows for sure.

[00:20:57] Speaker 01:
I don't understand your first statement.

[00:20:59] Speaker 01:
On this record, Dr. Hermani is not a Virginia doctor.

[00:21:02] Speaker 01:
I don't see any fact-finding that says this.

[00:21:04] Speaker 01:
I see the board and the Veterans Court saying it's not in evidence either way, but I don't see that that means that we accept as a factual matter that someone found she's not a Virginia doctor.

[00:21:14] Speaker 00:
Everything with her name on it has a Tennessee address.

[00:21:16] Speaker 00:
That's what I mean.

[00:21:17] Speaker 01:
I don't get to make a fact-finding on appeal.

[00:21:20] Speaker 01:
The board didn't make a fact finding that she's not a Virginia doctor.

[00:21:22] Speaker 01:
I don't get to do that on appeal because you tell me next to her name her address was Tennessee.

[00:21:27] Speaker 00:
I'm just saying the record, I mean the record reflects, doesn't reflect, the record does not reflect she's a Virginia doctor.

[00:21:35] Speaker 00:
That's what I meant to say.

[00:21:36] Speaker 00:
I'm sorry Your Honor.

[00:21:38] Speaker 00:
It just, there's nothing with every address on her medical, she treated him up to three months before his death and in every one of the VA medical records, she's Mountain Home, Tennessee is her address.

[00:21:52] Speaker 00:
That's what I meant to say.

[00:21:53] Speaker 00:
By this record, every address is a Tennessee address, your honor.

[00:21:58] Speaker 00:
That's what I meant to say.

[00:22:01] Speaker 03:
Thank you.

[00:22:03] Speaker 03:
Thank you.

[00:22:04] Speaker 03:
We thank both counsel and the cases submitted.