[00:00:00] Speaker 03:
everyone.

[00:00:01] Speaker 03:
The first argue case this morning is number fifteen seventy ten, Brian against McDonald, Mr. Levinson.

[00:00:12] Speaker 01:
Good morning honorable judges.

[00:00:17] Speaker 01:
I'm Jared Levinson here representing Mr. Brian.

[00:00:22] Speaker 01:
Today Mr. Brian comes here because he meets the three requirements for the writ of mandamus in this case.

[00:00:30] Speaker 01:
Mr. Brian will show that the VA has made an absolute arbitrary and systematic refusal to meet its duties in its consideration of his VA benefits claims.

[00:00:46] Speaker 03:
Mr. Lemelson, excuse me.

[00:00:49] Speaker 03:
Maybe we're both going to ask for the same clarification.

[00:00:51] Speaker 03:
One of the points that you made was that there had been a hundred percent rating from 30 years ago

[00:00:59] Speaker 03:
And apparently the government recognizes that.

[00:01:04] Speaker 03:
What happened to that?

[00:01:05] Speaker 01:
Your honor, the government refuses to recognize that 100% rating.

[00:01:09] Speaker 01:
The government has arbitrarily refused to recognize that rating.

[00:01:17] Speaker 01:
The rating, your honor, was issued way back in 1979.

[00:01:20] Speaker 01:
78, excuse me.

[00:01:25] Speaker 01:
the government the ratings simply disappeared into the government system and there may be a good reason for that your honor for many years dental ratings which by the way represent only two percent of VA benefits claims were kept completely separate from all the other

[00:01:41] Speaker 01:
benefits claims.

[00:01:43] Speaker 02:
If Mr. Levinson doesn't mandamus require a lack of another remedy, isn't he getting another remedy?

[00:01:50] Speaker 01:
No, Your Honor.

[00:01:51] Speaker 02:
Something in February and isn't their proceedings still pending?

[00:01:57] Speaker 01:
Your honor, the problem is those proceedings have been pending forever and it is because of the intentional misconduct of the government which I will discuss in detail and I will provide this court with a timeline of events which will show conclusively

[00:02:12] Speaker 01:
that there is no way that this is a mere delayed case.

[00:02:16] Speaker 02:
And are these facts questions beyond our jurisdiction?

[00:02:19] Speaker 01:
No, Your Honor, because the question you hear is whether there's an adequate remedy.

[00:02:24] Speaker 01:
And these are not fact questions, Your Honor.

[00:02:26] Speaker 01:
They are established facts.

[00:02:27] Speaker 01:
They are established matters of law, in fact, because if you look at the actions taken by the government,

[00:02:33] Speaker 01:
They are tantamount to an arbitrary and capricious refusal and meet the legal standard.

[00:02:38] Speaker 01:
Also, Your Honor, there's a fundamental due process question here under the Fifth Amendment, because when you are denied adequate due process, the court can then consider the application of facts and law and law to facts in this kind of a situation.

[00:02:53] Speaker 01:
Here, the deprivation of due process, as the court will see, is extreme, including, by the way, the complete denial

[00:03:01] Speaker 01:
regarding Mr. Bryant's dental care, the complete denial of any appeals process whatsoever, either on the clinical side or on the non-clinical side.

[00:03:11] Speaker 01:
When Mr. Bryant went to file an appeal, he was met with a complete slam door in his face by the GA Regional Council.

[00:03:19] Speaker 01:
He was denied all, I repeat, all appellate rights that are guaranteed under VA law.

[00:03:25] Speaker 03:
Have you made sure that I understand that 100% rating?

[00:03:29] Speaker 03:
The government says that that

[00:03:31] Speaker 03:
was for medical treatment purposes not for compensation purposes.

[00:03:36] Speaker 03:
What happened since 1978?

[00:03:39] Speaker 03:
Was any attempt made to follow up on that one aspect which

[00:03:46] Speaker 03:
from the way you presented it, is this positive of what is now before us?

[00:03:52] Speaker 01:
Your Honor, let me explain a little bit about that rating, and let me explain a little bit about the government's arguments regarding the nature of that rating, because that requires an understanding and clarification of how the VA system works.

[00:04:09] Speaker 01:
First of all, Mr. Brian did not know that he had a compensable rating until 2008.

[00:04:14] Speaker 01:
He was told by a VA employee in the Baltimore office that he had a 99.14 rating at 100%.

[00:04:21] Speaker 01:
That's the first he'd ever heard of a compensable rating.

[00:04:25] Speaker 01:
That rating was probably in all likelihood lost in the system because the dental ratings were kept separate for so many years.

[00:04:33] Speaker 01:
But your question goes to a more important point.

[00:04:36] Speaker 01:
And that is how the VA works and the meaning of those dental rating sheets that the government relies on.

[00:04:42] Speaker 01:
And this goes to the problem in this case, Your Honors.

[00:04:45] Speaker 01:
The government constantly misrepresents what documents mean and the state of the law and how VA administrative matters work.

[00:04:53] Speaker 01:
This is critical to understand in understanding why the government's representations regarding this rating are false.

[00:05:01] Speaker 01:
And here's why.

[00:05:02] Speaker 01:
The government relies on an argument that the dental rating sheets that are in the file somehow represent a disability rating on the VBA side.

[00:05:14] Speaker 01:
Here's what needs to be understood.

[00:05:16] Speaker 01:
There are two branches to the VA.

[00:05:18] Speaker 01:
The VHA, the Health Administration, and the VBA, the Benefits Administration.

[00:05:24] Speaker 01:
The problem is the forms that the government submitted are never to be used for disability ratings purposes.

[00:05:31] Speaker 01:
The government represents that that's what they represent.

[00:05:34] Speaker 01:
They do not.

[00:05:35] Speaker 01:
And the authority for that, the legal authority for that, can be found in VA's fast letter 1042, which came out in 2010.

[00:05:45] Speaker 01:
In that fast letter, the head of the compensation department stated that the forms that the government is relying on are never to be used for ratings purposes.

[00:05:56] Speaker 01:
They're only used for treatment purposes.

[00:05:58] Speaker 01:
In other words, they are in no way, shape, or form to find any disability rating or any limitation on a disability rating, like the 9914 rating that exists in Mr. Bryant's case.

[00:06:09] Speaker 01:
Those dental rating sheets that the government put in the file, according to Fast Letter 1042, are simply to be used for treatment purposes.

[00:06:18] Speaker 01:
What that means is you go into a dental clinic, they're like an intake sheet.

[00:06:22] Speaker 01:
The government, the employees there, the dentists who look at you initially, they determine first of all, are you eligible for dental care?

[00:06:31] Speaker 01:
Then they determine what dental care you need and then ultimately they use those sheets to pass on to the financial arm of the VHA to get payment for the services provided.

[00:06:42] Speaker 01:
You will note that there is no diagnostic rating on those sheets.

[00:06:46] Speaker 01:
And there is no percentage rating like 99.14% to 100%.

[00:06:50] Speaker 01:
That's because according to Fast Letter 1042, those sheets are never to be used for that purpose.

[00:06:55] Speaker 01:
A rating for disability purposes only comes from the VBA.

[00:07:00] Speaker 04:
And it comes from... Mr. Levinson, I think what we're trying to decide today, I think, is whether the Veterans Court was correct in denying your mandamus petition.

[00:07:11] Speaker 04:
Because the Veterans Court believed, when it wrote the decision last year,

[00:07:15] Speaker 04:
that your client still had other alternative avenues of relief through all your various claims that are in various stages, whether they're at the RO or maybe on appeal to the BVA.

[00:07:30] Speaker 04:
And so I think that's the first question we have to decide before we even try to get into the merits of whether the VA correctly or incorrectly did something to safeguard your client's claims.

[00:07:43] Speaker 04:
Why was the Veterans Court wrong in concluding that

[00:07:47] Speaker 04:
You can still go, your client can still go through the regular appeals process, whether it's through the RO or whether it's through the board, or ultimately back up to the Veterans Court on appeal from an adverse board decision.

[00:08:02] Speaker 04:
So what is your response to that technical legal question?

[00:08:07] Speaker 01:
Your Honor, the answer to that technical legal question is to look at what constitutes an adequate alternative

[00:08:14] Speaker 01:
and also a close look at the process that has gone on in this case.

[00:08:19] Speaker 01:
which indicates that those avenues are foreclosed by the disingenuous nature of the VA's conduct, which has been designed to delay this case forever and ever.

[00:08:30] Speaker 04:
Could you explain to me one thing, which was that, as Judge Laurie indicated earlier, the RO issued a decision in February 2015, right?

[00:08:40] Speaker 04:
Correct.

[00:08:41] Speaker 04:
And the RO's decision seemed to be relating to the very same claims of service-connected injuries

[00:08:49] Speaker 04:
that you had appealed the year before, or in 2013, and then ultimately, rather than waiting for the board to review that adverse decision in 2013, you filed a mandamus petition last year.

[00:09:09] Speaker 04:
You filed a mandamus petition last year to the Veterans Court, right?

[00:09:14] Speaker 04:
And then the Veterans Court denied that mandamus petition,

[00:09:17] Speaker 04:
believing under the impression that if you had just continued on with the appeal process down at the board you would ultimately get a decision on the merits and then perhaps if needed ultimately get to the Veterans Court.

[00:09:32] Speaker 01:
I understand the question.

[00:09:33] Speaker 01:
Let me explain to you why we filed the writ.

[00:09:36] Speaker 01:
And this is very important because the circumstances that led to this make it clear why we were not getting to the BVA.

[00:09:43] Speaker 01:
And that's why we filed the writ, because the RO was intentionally acting bizarre and not letting us get there, a pattern of behavior which continues to this day.

[00:09:51] Speaker 01:
That's why I say the timeline of events is critical here.

[00:09:56] Speaker 01:
Mr. Brian's case was heard by the BVA and remanded back to the RO back on February 22, 2013.

[00:10:05] Speaker 01:
I received an acknowledgement letter from the RO of my representation on the 21st of March.

[00:10:13] Speaker 01:
The remand decision was issued in August of 2013.

[00:10:17] Speaker 01:
It should have been expedited back within 30 days.

[00:10:21] Speaker 01:
is still not back there today.

[00:10:23] Speaker 01:
Why?

[00:10:25] Speaker 01:
Well, we filed, interestingly enough, a response to that decision.

[00:10:31] Speaker 01:
That response was lost, and they claim never received.

[00:10:35] Speaker 01:
In October, we visited the RO.

[00:10:39] Speaker 01:
We were given very few answers, and we were treated in the most violent manner imaginable.

[00:10:45] Speaker 01:
In November 21st,

[00:10:47] Speaker 01:
Mr. Brian received a call from a supervisor at the Baltimore Varroa.

[00:10:52] Speaker 01:
That supervisor was referred to me.

[00:10:54] Speaker 01:
His memorandum, Your Honor, that was written was in the file.

[00:10:59] Speaker 01:
I'd like to read to you what he wrote on November 21, 2013.

[00:11:02] Speaker 01:
Also, I informed him, that would be me, that I will reactivate the appeal and the folder will be certified and returned to the BVA.

[00:11:12] Speaker 01:
In other words, Your Honor,

[00:11:14] Speaker 01:
The file was supposed to be returned in November of 2013.

[00:11:19] Speaker 01:
We made repeated requests to return that file.

[00:11:23] Speaker 01:
It was never returned.

[00:11:24] Speaker 01:
And by April of 2014, after innumerable phone calls, letters to the BVA asking them to intervene because they have a concomitant duty to follow up on their own remand,

[00:11:36] Speaker 01:
All they did was refer the letters back to the RO with nothing more.

[00:11:40] Speaker 01:
Nothing was done by anybody.

[00:11:43] Speaker 01:
And that's why we filed the writ, because we were misled time and time again that this particular file would be returned.

[00:11:50] Speaker 01:
It was never returned.

[00:11:51] Speaker 04:
And was the Veterans Court wrong when it says that the claim was certified for appeal to the Board of Veterans Appeals on May 9, 2014?

[00:11:59] Speaker 01:
Your Honor, they're correct.

[00:12:01] Speaker 01:
It was.

[00:12:01] Speaker 01:
And you know what?

[00:12:02] Speaker 01:
It's still not there.

[00:12:04] Speaker 01:
It's still not back there, and there was no explanation.

[00:12:07] Speaker 01:
And after the proceedings in the CAVC, I contacted the general counsel of the VA, the counsel who handled the case.

[00:12:14] Speaker 01:
And he told us there was no reason for the file to be held up.

[00:12:17] Speaker 01:
And then he sent me another email telling me the file had been sent out for processing.

[00:12:24] Speaker 01:
For processing.

[00:12:26] Speaker 01:
Instead of sending it back to the BVA, it was sent out for processing.

[00:12:30] Speaker 01:
And apparently, it's still being processed today.

[00:12:33] Speaker 01:
And as for the decision in February, if you look at that decision, it is utterly ridiculous.

[00:12:39] Speaker 01:
One of the things they decided, completely contrary to all known black letter law, is that Mr. Bryant received an expedited appeal to the BVA because he was found to be suffering from financial hardship.

[00:12:52] Speaker 01:
The RO then took that decision

[00:12:54] Speaker 01:
and argues and concludes that they can use that date, the date of his expedited appeal to the BVA as a reason to cut off his back benefits before that date.

[00:13:05] Speaker 01:
In other words, any benefits he would get would come from 2012 forward.

[00:13:08] Speaker 03:
When you say cut off, was he receiving any benefits?

[00:13:14] Speaker 01:
The point is, Your Honor, that when you apply for VA benefits,

[00:13:17] Speaker 01:
As of the date that you file, that's when your back benefits would begin.

[00:13:21] Speaker 03:
So if the case is decided... So you're saying it was the entitlement that was cut off?

[00:13:25] Speaker 01:
The entitlement was cut off based on the fact that the BVA granted him a waiver of financial hardship so he could have an expedited hearing.

[00:13:32] Speaker 01:
In other words, they used his financial hardship as an excuse to create more financial hardship because he was given an expedited appeal before the BVA.

[00:13:41] Speaker 01:
There is no way when you look at that statute, either the black letter or the scant legislative history,

[00:13:46] Speaker 01:
That that makes sense.

[00:13:48] Speaker 03:
It's irrational.

[00:13:49] Speaker 03:
Let's hear from the government, and we'll save you a little time.

[00:13:52] Speaker 01:
OK.

[00:13:53] Speaker 03:
Thank you, Your Honor.

[00:13:54] Speaker 03:
Thank you.

[00:14:01] Speaker ?:
Ms.

[00:14:01] Speaker 00:
Sanderson.

[00:14:02] Speaker 00:
May it please the Court?

[00:14:04] Speaker 00:
This Court should affirm the decision of the... Well, first to start off, this Court does not possess jurisdiction to consider Mr. Bryant's challenge to the decision of the United States Court of Appeals for Veterans Plaintains 9, his petition for a writ of mandemons.

[00:14:16] Speaker 00:
Mr. Brian challenges only the Veterans Court's factual determination or the application of Veterans Benefit Law to Fact.

[00:14:24] Speaker 02:
Also, even if this Court found that it had jurisdiction, the Veterans Court... Is this a failure to act or saying we're going to send something back and not doing that?

[00:14:32] Speaker 02:
Are all of these alleged procedural irregularities, applications of law to fact?

[00:14:38] Speaker 00:
Well, Your Honor, the question that the Veterans Court considered, which this Court would review, is whether the writ of mandamus was warranted.

[00:14:48] Speaker 00:
And the Veterans Court considered whether there was an adequate alternative means for the veteran to seek the relief that he desires.

[00:14:59] Speaker 02:
She's saying all of the argument that we've heard sort of

[00:15:04] Speaker 02:
voice, if I may say so, about the frustrations in dealing with the VA.

[00:15:10] Speaker 02:
They're sort of beyond our jurisdiction?

[00:15:13] Speaker 00:
Yes, Your Honor.

[00:15:15] Speaker 00:
The court should consider, first of all, whether the Veterans Court properly applied the mandamus standard.

[00:15:23] Speaker 03:
So if it's beyond our jurisdiction, where does an aggrieved veteran go for relief if, in fact, whether

[00:15:33] Speaker 03:
say the files were lost and there was human error and there was not anything malicious about it.

[00:15:43] Speaker 03:
Where does a person go for relief if not to the court?

[00:15:50] Speaker 00:
typical appeals process that involves the Board of Veterans' Appeals would be the proper manner for a veteran to seek review.

[00:15:59] Speaker 03:
And if they use the file or don't respond or time goes by or something happens in 1978 that the veteran isn't informed about, the things that we have been told about and that certainly in this briefing process are now brought to the attention of the VA

[00:16:18] Speaker 03:
Where does a person go to try and straighten out, and if need be, make amends?

[00:16:24] Speaker 00:
Number one, speed is not a factor that has been found to be a factor for granting a writ of mandamus, simply wishing that you, of the process, move on more quickly.

[00:16:36] Speaker 03:
Let's just assume that the courts have authority to right wrongs.

[00:16:39] Speaker 03:
Where does a person go to, if there is a wrong, or to determine whether there's been a wrong in this

[00:16:48] Speaker 03:
case of the specific veteran accommodation that the nation is bound to.

[00:16:56] Speaker 00:
The issue that Mr. Bryan has raised is one of whether the pellet of the process in the appeals process that would be the typical process and also whether the claim processing process is moving quickly enough.

[00:17:12] Speaker 00:
And that is not one that the court has found that it would have jurisdiction to consider that would support a writ of mandamus.

[00:17:20] Speaker 00:
For example, in the Beasley case, the court noted that objections to the speed of the secretary's actions... Well, let me ask a question.

[00:17:27] Speaker 04:
What is the status of his appeal to the board from the denial of those various claims?

[00:17:34] Speaker 04:
He tried to appeal in 2013, right?

[00:17:38] Speaker 04:
And then for whatever reason,

[00:17:41] Speaker 00:
It got stuck in the VA, right?

[00:17:50] Speaker 04:
What does that mean?

[00:17:50] Speaker 04:
We just heard from the other side that it's been stuck in processing.

[00:17:56] Speaker 00:
the claim what the current that the board rendered a decision on no your honor the claim in 2015 it hasn't rendered a decision on it yet no your honor the claims file had had to remain with the regional office because for several reasons the processing that that Mr. Brian's Council has mentioned

[00:18:15] Speaker 00:
was due to processing to provide a response to Mr. Bryant's council's FOIA request.

[00:18:21] Speaker 00:
That's not in the record, but this is what processing was required for.

[00:18:26] Speaker 00:
There were also additional communications from council to the regional... Where is the file right now?

[00:18:31] Speaker 00:
with the regional office.

[00:18:32] Speaker 04:
It still isn't at the board?

[00:18:34] Speaker 00:
Well at this point the veteran has continued to make additional communications to the regional office is now wishing to set up medical examinations and this is further development of the claim.

[00:18:47] Speaker 00:
When there's further development of the claim the file needs to remain with the regional office to

[00:18:53] Speaker 00:
include this new development that has resulted in the file not being sent to court.

[00:19:00] Speaker 00:
Now, Mr. Bryan wants to challenge the new decision.

[00:19:04] Speaker 04:
So you're saying that if the veteran is sending in submissions to the VA for this, that, and the other, that holds up the appeals process necessarily?

[00:19:13] Speaker 00:
It is holding up the movement of the claim file.

[00:19:17] Speaker 00:
The claim is continuing to be developed.

[00:19:20] Speaker 00:
The medical decisions that have been

[00:19:26] Speaker 00:
requested by the recent decision of February 20, 2015 are ones that shall be conducted and that will allow the development of claims that then the board can consider.

[00:19:40] Speaker 04:
Assume I don't know anything about the veterans administrative claim process.

[00:19:46] Speaker 04:
What is the relationship between the RO decision from February of this year and the pending board appeal that's been pending since 2013?

[00:19:59] Speaker 04:
It appears to be they're in parallel with each other in terms of seeking the same kind of benefits on the same claims, right?

[00:20:10] Speaker 00:
Although the

[00:20:12] Speaker 00:
Claim was certified for appeal to the board because of the additional claim development There there is no now that that claim would not be submitted to the board that the claim has developed Could you just explain to me what what happened?

[00:20:27] Speaker 04:
Why are we looking at a situation where there were certain claims denied?

[00:20:32] Speaker 04:
there was an appeal to the board and then I Don't know to me seemingly out of the blue now.

[00:20:39] Speaker 04:
There's a second RO decision.

[00:20:40] Speaker 04:
That's

[00:20:41] Speaker 04:
granting some benefits, but mainly denying those benefits yet again.

[00:20:45] Speaker 04:
And so I'm just trying to understand what's going on.

[00:20:49] Speaker 00:
But as Mr. Brian submitted additional materials and as additional claim development was conducted, the claims file developed and the claims file cannot be sent to the board for its consideration until the claim processing is completed.

[00:21:06] Speaker 00:
It would be inefficient for the claims not to be developed before the board reviews it.

[00:21:13] Speaker 00:
In this case, Mr. Brian has received certain of the relief that he sought.

[00:21:18] Speaker 00:
For example, his PTSD rating has increased from 10% to 30% thanks to the February 2015 decision.

[00:21:28] Speaker 00:
Similarly, there was an increase in the rating for the scars in his scalp, also from 10% to 30%.

[00:21:39] Speaker 00:
As for the claimed 30-year entitlement to a 100% rating, the

[00:21:47] Speaker 00:
decisions of the regional office in August 6, 2013 and again in February 2015 demonstrate that Mr. Bryan is simply not entitled to compensation under that code and this is because the code relates to loss of half of your maxilla or your upper jaw.

[00:22:12] Speaker 00:
The two decisions

[00:22:15] Speaker 00:
state clearly that the diagnostic and clinical evidence, the dental exams and x-rays demonstrate that he is not missing any portion of his maxilla.

[00:22:28] Speaker 03:
Well, without getting into the facts, of all of the veteran's cases that have come before us, I don't remember any where a person has been rated a hundred percent disabled before.

[00:22:43] Speaker 03:
without saying for, and that we have been told that that's all right, we'll give you medical treatment, but it doesn't count for compensation.

[00:22:53] Speaker 03:
Is there a gap in the transmission between these two branches of the VA or a failure on whose part?

[00:23:03] Speaker 03:
Did a failure on the veteran's part?

[00:23:05] Speaker 03:
Apparently he never received notice of that 1978.

[00:23:10] Speaker 03:
until just a few years ago.

[00:23:13] Speaker 00:
Well, Your Honor, we have not received any evidence of this 1978 rating either.

[00:23:18] Speaker 00:
There is no evidence presented by the veteran in his appendix that such a rating ever existed.

[00:23:24] Speaker 00:
None of the decisions that no one showed.

[00:23:28] Speaker 00:
But the government didn't deny it?

[00:23:29] Speaker 00:
There was no rating.

[00:23:30] Speaker 03:
I didn't see any denial in your brief.

[00:23:33] Speaker 03:
What you said was that this was a diagnostic code and not a competition code.

[00:23:39] Speaker 03:
If you're now telling us that this came out of whole cloth or thin air or whatever, that's

[00:23:47] Speaker 03:
Quite a new concept and quite a dramatic one.

[00:23:51] Speaker 00:
But Your Honor, we noted that both the August 6, 2013 decision and the February 20, 2015 regional office decision state that Mr. Bryant is not missing any portion of his maxilla.

[00:24:06] Speaker 00:
Therefore, he could not in 1978 have been missing a portion of his maxilla, which would have

[00:24:11] Speaker 00:
entitled him to any rating for 100% disability under that code.

[00:24:16] Speaker 00:
Mr. Bryant has only referred to a computer printout that he claimed and for the first time here in this argument he claims to have spoken with someone at the VA regional office.

[00:24:29] Speaker 00:
Those are the only references anywhere to there having ever been any entitlement.

[00:24:36] Speaker 03:
I think there's something in the appendix from that date.

[00:24:40] Speaker 00:
Your Honor, there are only, in the supplemental appendix, we've included the dental rating forms at supplemental appendix 113 to 116.

[00:24:52] Speaker 03:
There was no evidence of it.

[00:24:55] Speaker 03:
You didn't say so in your brief.

[00:24:57] Speaker 03:
You just accepted it and shrugged it off.

[00:25:01] Speaker 00:
your honor the decision of the regional office the that there was no law macula and for that reason but what is the government's position that there was never uh... any in back in nineteen seventy-eight any kind of reading it there wasn't yes your honor there was never a rating in nineteen seventy-eight that this code applied and that the half of the veterans macula was lost

[00:25:29] Speaker 00:
Evidence from that time period shows only that there was dental trauma and teeth loss.

[00:25:35] Speaker 00:
And as we have pointed out, Diagnostic Code 9914 requires that you actually lose half of your upper jaw and that your teeth are lost for that reason, not that you have an impact to your teeth and then they are lost.

[00:25:49] Speaker 02:
What I hear you're saying is that this is a convoluted process and maybe it's a sluggish process and whatever the details are, they're beyond us and that the workings of the process are an administrative question not subject to judicial review either.

[00:26:10] Speaker 00:
That's correct, Your Honor.

[00:26:14] Speaker 00:
The court lacks jurisdiction to consider the factual determinations of the veteran.

[00:26:17] Speaker 03:
How can it be correct?

[00:26:18] Speaker 03:
There's no denial that this veteran was seriously injured when the hatch closed on him.

[00:26:24] Speaker 03:
There apparently is still dents in his skull and I don't know what else.

[00:26:30] Speaker 03:
And here we are, now all these years after Vietnam arguing about

[00:26:36] Speaker 03:
where the file is, or whatever it is, and how to interpret an at best ambiguous, strange document.

[00:26:47] Speaker 03:
It does look very strange when there's something that says 100% injury, and now you tell us, well, it didn't take his jaw off, just took his teeth out, or whatever factual issue you are telling us we don't get to consider.

[00:27:02] Speaker 03:
You're saying there's no

[00:27:03] Speaker 03:
obligation at this stage and particularly now before the court to try and figure it out and get it straight, whatever the right thing is.

[00:27:12] Speaker 03:
I don't know if it's veterans entitled or not, but we see one gap after another.

[00:27:19] Speaker 00:
The court does not have jurisdiction to consider the factual determinations of the veterans court, nor does it have jurisdiction to consider medical determinations of the VA.

[00:27:31] Speaker 00:
You're saying the veterans court doesn't have jurisdiction to consider medical aspects?

[00:27:37] Speaker 00:
This court does not have jurisdiction to consider the medical questions that the veterans... And this is a constitutional issue due process.

[00:27:46] Speaker 00:
The veteran did not raise a due process argument in his amended petition.

[00:27:50] Speaker 03:
Is that the veteran's position?

[00:27:52] Speaker 03:
Is that the VA's position that if the veteran doesn't raise a due process argument that he received due process?

[00:28:02] Speaker 00:
The position of the government is that

[00:28:07] Speaker 00:
Mr. Brian did not raise a due process argument before the Veterans Court, therefore there is no constitutional decision of the Veterans Court for this court to review.

[00:28:17] Speaker 00:
The Veterans Court construed

[00:28:22] Speaker 00:
The factual issue of whether Mr. Bryan would be able to receive, through the regular appeals process, a consideration of his arguments and his claim.

[00:28:34] Speaker 04:
You say we don't have jurisdiction.

[00:28:36] Speaker 04:
What about this court's decision in LAM, where we said that, yes, we can review whether or not the load was correctly decided, whether there was an alternate avenue of relief?

[00:28:50] Speaker 00:
uh... we're going to land the court noted that it was not really reviewing any facts related to whether the veteran service-connected when the disability began or the extent of the disability also uh... and the question correct your honor and I do respond only to go past my fifteen minutes of a lot of time uh... in in land the court did uh...

[00:29:16] Speaker 00:
not for lack of jurisdiction.

[00:29:19] Speaker 00:
However, I believe the court's more recent Beasley decision explains the court's reasoning in Lamb and presents the court's determination on when it will exercise jurisdiction.

[00:29:30] Speaker 00:
It noted that in that case, the question was the scope of the legal obligation imposed on VA to assist the veteran and that the mandamus factors do not

[00:29:42] Speaker 00:
of the factual merits of the veteran's claim or the manner in which a rule governing veteran's benefits has been applied to particular facts.

[00:29:50] Speaker 00:
It also noted that in the courts of Gebhart v. Peake case, objections to speed were not found to support a jurisdictional basis.

[00:30:03] Speaker 00:
and that those arguments did not identify a legal right that required protection through a written mandamus.

[00:30:10] Speaker 00:
Also, the court noted in Beasley that whether the secretary had refused to adjudicate a claim was a factual issue and there was no jurisdiction.

[00:30:19] Speaker 04:
I think that the BVA really ought to issue an opinion this year on his claim that was pending since 2013.

[00:30:29] Speaker 04:
What has to happen to make that up?

[00:30:33] Speaker 00:
the veteran now has a rating decision from February 20, 2015.

[00:30:40] Speaker 00:
There is additional development moving forward on the issues that that decision deferred for medical examination.

[00:30:48] Speaker 00:
The veteran may appeal to the Board of Veterans' Appeals and receive the normal appellate process for consideration of that claim.

[00:31:01] Speaker 03:
Any more questions?

[00:31:03] Speaker 03:
Thank you.

[00:31:09] Speaker 03:
We've run over a bit.

[00:31:11] Speaker 03:
Let's add that to Mr. Levinson's rebuttal time.

[00:31:14] Speaker 01:
Okay.

[00:31:17] Speaker 01:
If it pleased the court on rebuttal, I'd like to make a couple of critical points here about some of the representations made by the VA's counsel here this morning.

[00:31:27] Speaker 01:
I mentioned earlier the VA has a habit of twisting apples into oranges.

[00:31:31] Speaker 01:
Let me just point out a couple of critical things that are easily proven by the record.

[00:31:35] Speaker 01:
I mentioned earlier there were emails from the General Council to May in August of 2014.

[00:31:43] Speaker 01:
Council represented that the file was being processed for new developments.

[00:31:48] Speaker 01:
If you look at those emails... Is this August 2013?

[00:31:51] Speaker 01:
You said August 2014.

[00:31:52] Speaker 01:
No, this is after the CABC reshoot its judgment.

[00:31:56] Speaker 01:
This is coming into August 26th of 2014.

[00:32:00] Speaker 01:
This is from the General Counsel's office.

[00:32:03] Speaker 01:
The General Counsel represented to me that the processing, and there's also an email to him that was included in the chain from a Baltimore representative,

[00:32:11] Speaker 01:
The processing was because they were moving to a digital environment and they were going to turn the paper files into a digital form rather than send them back to the BVA.

[00:32:20] Speaker 01:
There was no mention of any claim development.

[00:32:23] Speaker 01:
In fact, he specifically said, the general counsel, there was nothing pending.

[00:32:27] Speaker 01:
And so the processing really, according to the VA itself, was about moving to a digital environment, not about claims development, because there was nothing to develop at that point.

[00:32:37] Speaker 01:
There was no new claim on the table.

[00:32:39] Speaker 01:
Again, a misrepresentation.

[00:32:42] Speaker 01:
Further, Your Honor, the Council mentioned that there was never a constitutional claim before the Court below.

[00:32:50] Speaker 01:
I would call the Court's attention to the original writ filed in the C.M.E.C.

[00:32:54] Speaker 01:
The very first point, Henry, discussed

[00:32:57] Speaker 01:
The due process clause of the Fifth Amendment, it was all about due process under the U.S.

[00:33:03] Speaker 01:
Constitution, that whole first point heading, that whole first section.

[00:33:07] Speaker 01:
It absolutely was raised in the very first point heading before the CAE-6.

[00:33:15] Speaker 01:
What we have here, plain and simple, is an absolute denial of due process.

[00:33:22] Speaker 01:
It is clear from the record that the VA has done everything humanly possible to keep this file from going back to the BVA.

[00:33:31] Speaker 01:
Why would they do that?

[00:33:32] Speaker 01:
Because they do not want to lose this case, or perhaps they just want to keep it tied up forever.

[00:33:38] Speaker 01:
I don't know.

[00:33:39] Speaker 01:
You have to ask the VA.

[00:33:40] Speaker 04:
We just heard from the government's counsel that it's because

[00:33:47] Speaker 04:
of you continuing to file extra information or extra claims that require the file to remain in the A. And the interesting thing about that, Your Honor, is we never filed anything.

[00:34:00] Speaker 01:
That's the interesting thing.

[00:34:01] Speaker 01:
As I just said in the court, we filed nothing.

[00:34:03] Speaker 01:
And as the VA counsel acknowledged... The RO decision came out of the blue.

[00:34:09] Speaker 01:
It literally came out of the blue when they filed their response brief.

[00:34:15] Speaker 01:
In other words, we knew nothing about that process.

[00:34:17] Speaker 01:
I was shocked to see that decision.

[00:34:19] Speaker 01:
So was Mr. Bryant.

[00:34:20] Speaker 01:
We knew nothing about an ongoing process to consider anything.

[00:34:25] Speaker 02:
That's what you want, the decision.

[00:34:27] Speaker 02:
You want the process to move forward.

[00:34:29] Speaker 01:
Your Honor, the process moves forward by the government following the remand directions of the BVA as required by law, not by creating a whole other process that denies Mr. Bryant most of his claims, cuts off his back benefits in 2012 as a punishment for being granted expedited treatment for financial hardship

[00:34:48] Speaker 01:
a ludicrous proposition, if ever there was one, completely defiant of the rule of law.

[00:34:53] Speaker 01:
In other words, they create their own process because they knew they had to come here.

[00:34:57] Speaker 01:
They wanted to be able to say they had done something.

[00:35:00] Speaker 01:
That's the only rational explanation for it.

[00:35:02] Speaker 01:
The fact is what they did was they created a process by which Mr. Bryant is being punished for suffering from financial hardship.

[00:35:10] Speaker 01:
They give him virtually nothing beyond what he already had and then they come here and tell you they're supplying a process that we knew nothing about and played no role in and submitted no paperwork whatsoever.

[00:35:21] Speaker 04:
So as I understand it, what you want is this

[00:35:25] Speaker 04:
appeal to finally get to the board so that the board can issue a decision.

[00:35:29] Speaker 01:
At this point, what we would like this court to do is to recognize the 99-14 rating as a matter of law.

[00:35:35] Speaker 01:
It is a purely legal question.

[00:35:37] Speaker 01:
That rating, we don't do that.

[00:35:39] Speaker 01:
Well, then in the alternative, yes, an expedited return to the BVA.

[00:35:43] Speaker 01:
But, let's remember, this rating has existed for well over 20 years, and now the BVA... Is that in the record?

[00:35:50] Speaker 01:
It is, Your Honor.

[00:35:51] Speaker 01:
If you look at that printout that came directly from the Regional Office, that's an official VA document.

[00:35:56] Speaker 01:
We didn't create that out of whole cloth.

[00:35:58] Speaker 01:
That is a document that is an official document which lists his raising at 9914.

[00:36:03] Speaker 01:
That didn't come out of nowhere.

[00:36:05] Speaker 01:
It had to come from somewhere in the VA system.

[00:36:08] Speaker 01:
We certainly didn't create it.

[00:36:09] Speaker 01:
The VA did.

[00:36:10] Speaker 01:
And it's been in existence since 1978.

[00:36:13] Speaker 01:
After 20 years, a rating becomes vested unless the rating was created by a fraudulent act of the veteran.

[00:36:19] Speaker 01:
There is no fraudulent accusation here.

[00:36:22] Speaker 03:
So to be sure that I understand the answer to Judge Chen's question, the remedy, the most likely remedy, that would be the most direct path to resolving the situation as it stands.

[00:36:39] Speaker 01:
The most direct remedy would be to grant the 9914 writing, otherwise the VA will keep it.

[00:36:43] Speaker 03:
I don't think we can do that as a matter of our jurisdiction.

[00:36:46] Speaker 03:
I assume we can't do that.

[00:36:49] Speaker 01:
There has to be some further procedure.

[00:36:53] Speaker 01:
Then the case should go directly to the BVA.

[00:36:55] Speaker 01:
The problem is the court does have the ability to recognize something that is created as a matter of law.

[00:37:00] Speaker 01:
It's a purely legal question.

[00:37:02] Speaker 01:
that the court can recognize.

[00:37:04] Speaker 01:
We're not asking the court to issue a rating.

[00:37:06] Speaker 01:
We're simply asking the court to recognize, as a matter of law, that the rating exists.

[00:37:11] Speaker 01:
In other words, we're not asking the court to make a rating determination, but rather to recognize a point of law that after 20 years, a rating becomes vested, and they can come in and tear it up and create a whole new rating and a whole new process, which would seem to me completely violative of the rule of law, due process, and many known notions that our Constitution would establish.

[00:37:31] Speaker 03:
Any more questions?

[00:37:33] Speaker 03:
Any more questions?

[00:37:35] Speaker 03:
OK.

[00:37:35] Speaker 03:
Thank you.

[00:37:36] Speaker 03:
Thank you both.

[00:37:37] Speaker 03:
Thank you, Your Honors.

[00:37:39] Speaker 03:
Thank you for your time.