[00:00:04] Speaker 01:
The next case for argument is 147106, Cooper v. McDonnell.

[00:00:40] Speaker 03:
Mr. Carpenter, it's good to see you back.

[00:00:42] Speaker 03:
Another nice tie.

[00:00:44] Speaker 03:
Thank you.

[00:00:46] Speaker 03:
I can't do bow ties.

[00:00:49] Speaker 03:
I always like the ones you wear.

[00:00:52] Speaker 04:
May it please the court.

[00:00:52] Speaker 04:
Kenneth Carpenter appearing on behalf of Mr. Leo Cooper.

[00:00:56] Speaker 04:
This case, Your Honor, deals with the Veterans Court's addressing or not addressing the rule of law created in its own precedent in a case called Robinette.

[00:01:07] Speaker 04:
The Veterans Court, in its decision, correctly noted

[00:01:10] Speaker 04:
that in 2000, with the Congress's enactment of the Veterans Claims Assistance Act, that Congress separated the secretary's notification duties by moving the former 5103 small a. Mr. Carver, how do you deal with, I think the central issue is Vasquez-Loris versus Shinseki.

[00:01:35] Speaker 03:
And that Robinette, to the extent it conflicts with that, is no longer a good law.

[00:01:48] Speaker 04:
Well, certainly this court can make that decision.

[00:01:53] Speaker 04:
We disagree with that.

[00:01:55] Speaker 04:
We believe that the provisions of 5102b remain intact.

[00:02:05] Speaker 04:
and those provisions are what the former language of 5103 small a included prior to the enactment of the BCAA and that reliance upon Vasquez-Flores or any of the other cases that interpret the current version of 5103a missed the point

[00:02:27] Speaker 04:
of the precedent that was created by the veterans court in Robinette.

[00:02:31] Speaker 01:
I don't understand that argument simply because we don't miss our court isn't we're not compelled to follow what the veterans court says and so we you know it's it's one thing if you argue we feel to follow our own precedent but you're arguing that our court didn't have the authority to reach the conclusions it reached in Vasquez and other cases because

[00:02:52] Speaker 01:
the rule of law and Robinette precluded us from doing so?

[00:02:56] Speaker 04:
Oh, no, no, no, Your Honor.

[00:02:57] Speaker 04:
I'm sorry.

[00:02:57] Speaker 04:
If that's what you understood me to say, then I misspoke.

[00:03:01] Speaker 04:
What I was trying to say is that the Veterans Court erred when it failed to realize that its own precedent created a separate and independent duty under the provisions that were formerly 5103 small a and are now in 5102 small b. But if the Veterans Court

[00:03:23] Speaker 01:
presumed or assumed or read our precedent is overruling Robinette or not being consistent with Robinette, then they would not only be allowed to, but would be compelled to not follow Robinette, but to follow our precedent, right?

[00:03:37] Speaker 04:
And that would be true, except that there is a presidential opinion, as opposed to in this case a non-precedential opinion,

[00:03:43] Speaker 04:
in the Davis case which in fact accepted the rule in Robinhead as being distinguishable from the enactment of the VCA as it relates to the notification duties that are required under 5103 small a under the current version.

[00:04:02] Speaker 04:
Under the former version and under the current version as it continues to exist in statute there is an independent

[00:04:11] Speaker 04:
obligation.

[00:04:12] Speaker 04:
Now this court certainly does have the authority, as I believe Judge Wallach was suggesting, to simply say that we disagree with that interpretation and that we reject the Robinette interpretation.

[00:04:24] Speaker 04:
But the error that was created in this case is that Judge Sholan did not address that issue.

[00:04:30] Speaker 04:
Judge Sholan treated this as though it were a 5103 small a issue and totally disregarded

[00:04:38] Speaker 04:
the precedent that exists both in Robinette and in Davis that adopt that interpretation that there is a separate and independent duty to notify when the VA is put on notice of specific evidence.

[00:04:53] Speaker 00:
No, it seems to me as if these cases and the history that we've

[00:04:59] Speaker 00:
of the duties notified has really turned on what it is that the veteran was supposed to be notified of.

[00:05:07] Speaker 00:
And here is it as simple as that when the veteran said that this arose during service that he never provided medical evidence and that all they had to tell him was that's very interesting but we can't take your word for it.

[00:05:25] Speaker 00:
Get some doctor to tell us this.

[00:05:27] Speaker 04:
Yes, Your Honor.

[00:05:29] Speaker 04:
And that's the holding in Robinette that when, as in this case... They did that here.

[00:05:35] Speaker 01:
There are numerous notices in the record where they tell the veteran, if you have any information or medical opinions or medical suggestions that you think are relevant, please provide or, you know, buy, provide.

[00:05:49] Speaker 04:
And there is no dispute.

[00:05:51] Speaker 04:
on Mr. Cooper's part that those notices were sent.

[00:05:55] Speaker 04:
The dispute on Mr. Cooper's part is that under Robinette, there has been determined under the statute to be a separate duty that when the VA is put on notice, and in this case they were placed on notice in two different circumstances, first in a VA examination and then in testimony before the board in 2011.

[00:06:15] Speaker 04:
In those circumstances, under the rule of Robinette, the government is put on notice that potentially favorable evidence exists.

[00:06:24] Speaker 04:
The requirement of Robinette is not that the VA go get that evidence, but that the VA recognize that that evidence is relevant and that notice is given of the relevance of that evidence with a direction that that evidence should be submitted.

[00:06:41] Speaker 01:
If the VA has told

[00:06:45] Speaker 01:
Mr. Cooper repeatedly, if you have any medical evidence that you think is relevant to this, you should come forward with it.

[00:06:52] Speaker 01:
Please come forward with it.

[00:06:54] Speaker 01:
So isn't it at a minimum duplicative for them to have said, and this is again in a particular circumstance because he refers to something to do it.

[00:07:04] Speaker 01:
The second question that I'll let you respond is that

[00:07:08] Speaker 01:
In this instance, years later in 2011, he got a remand from the board and they provided him a new thorough medical exam, right?

[00:07:19] Speaker 01:
What else would that notice have resulted in when he's already gotten subsequent to that?

[00:07:26] Speaker 01:
He was awarded a brand new medical exam so that they could evaluate all of it.

[00:07:31] Speaker 04:
Because the medical exam, without the opinion from this surgeon,

[00:07:35] Speaker 04:
at least as represented in the testimony by Mr. Cooper, that this surgeon told him that the reason that that surgery was necessary was because of what happened in service.

[00:07:46] Speaker 01:
That wasn't quite as definitive as that was.

[00:07:52] Speaker 04:
I don't know precisely what it was, but from a legal point of view, that was the relevance of the evidence because it potentially provided the necessary nexus.

[00:08:03] Speaker 04:
the relationship between his post-service disability and what happened to him in service.

[00:08:09] Speaker 04:
That arose in a context in which the events changed.

[00:08:15] Speaker 04:
The problem with just giving generic notice, as this court has affirmed, is all that is required is that it doesn't provide context.

[00:08:24] Speaker 04:
The rule in Robinette says that when you have a specific context,

[00:08:28] Speaker 04:
When the government is put on notice of the existence of potentially favorable evidence, they at least have to tell the veteran that the veteran needs to go out and get that evidence.

[00:08:39] Speaker 04:
And that's the piece that is missing and is required by the Veterans Court's interpretation of the statute.

[00:08:47] Speaker 01:
Well, I don't know what generic notice means.

[00:08:50] Speaker 01:
But even though the notice covers a lot of things because they want to be comprehensive, it seems to me that the notice in these various letters is quite specific.

[00:09:00] Speaker 01:
If you have any medical information, medical records, medical statements that support your claim, please provide them.

[00:09:07] Speaker 01:
Right?

[00:09:08] Speaker 04:
That's what it says, Your Honor.

[00:09:09] Speaker 04:
But with respect, frankly, to a pro se veteran, that information is meaningless.

[00:09:17] Speaker 04:
because what is missing here is the medical opinion that correlates the post-service disability to the injury or disease that happened.

[00:09:26] Speaker 03:
What I'm looking at is JA81, which it says the veteran claimed that the surgeon who had performed his ventral hernia at Great Lakes Naval Base told him there is a possibility.

[00:09:43] Speaker 03:
That's pretty weak.

[00:09:46] Speaker 03:
The veteran claims that the surgeon told him there's a possibility.

[00:09:51] Speaker 04:
But the rule under Robinette says that if there is such a possibility, then the government at least has the obligation, the independent duty, to tell them that if that exists, you should go get it and submit it to us.

[00:10:06] Speaker 04:
It doesn't put any burden on the VA to go get that information.

[00:10:10] Speaker 04:
It puts the only burden on the VA to get whatever he could.

[00:10:15] Speaker 04:
That's right, Your Honor, but to get whatever he could without the context of what was arisen in that examination that you cite to at JA81 or in the testimony before the... According to their record, he's the one who told the recording doctor that the surgeon told him that.

[00:10:34] Speaker 04:
That's correct, Your Honor, and that provides the context.

[00:10:38] Speaker 04:
And that context is, you can't prevail in this claim, Mr. Cooper, unless you provide medical nexus evidence.

[00:10:50] Speaker 01:
at least assume more sympathy from speaking for myself only, except that in this circumstance, it wasn't like that was the end of the story.

[00:10:58] Speaker 01:
It wasn't like 2002, he has an exam, he tells the whoever, my other doctor told me this and then it's just ignored and that's the end of the case and he loses his benefits.

[00:11:09] Speaker 01:
In this circumstance,

[00:11:11] Speaker 01:
This went on and he got a remand from the board and he got a full-blown new medical evaluation.

[00:11:18] Speaker 01:
And then the board relied on the findings of that, which also included whether or not there was really any nexus with regard to the hernia.

[00:11:27] Speaker 01:
So it seems like here, he clearly got

[00:11:31] Speaker 01:
consideration of any and everything that one could have considered.

[00:11:35] Speaker 04:
He most certainly did, Your Honor.

[00:11:37] Speaker 04:
And there is no objection on Mr. Cooper's part that he did not get the full assistance that he was entitled to under the law.

[00:11:47] Speaker 04:
What he didn't get was the notice required by Robinette.

[00:11:52] Speaker 04:
The Veterans Court made an interpretation of the statute that in specific circumstances, not in every circumstance, but in specific circumstance,

[00:12:01] Speaker 04:
And those are the precise circumstances of this case when the VA is put on notice of potentially favorable evidence that the VA has an independent duty, a separate duty from the duty to assist, a separate duty from the duty to notify under 5103 small a, to tell the veteran that that is precisely the kind of evidence that you need in order to prevail.

[00:12:26] Speaker 04:
They didn't do that.

[00:12:27] Speaker 04:
Now that is either an independent duty as interpreted by the Veterans Court or it's not.

[00:12:32] Speaker 04:
The Veterans Court in its decision simply didn't address that.

[00:12:36] Speaker 04:
It dealt with Davis as though the Davis decision had completely abandoned the interpretation of the statute in Robinette.

[00:12:44] Speaker 04:
But that's not the case.

[00:12:46] Speaker 04:
In fact, Judge Hagel in Davis and the panel in Davis accepted the proposition offered that under that statute, Robinette continued to be viable, but not under 5103, but under 5102, because it had been moved by Congress when it rewrote the statute.

[00:13:05] Speaker 01:
Thank you very much.

[00:13:06] Speaker 01:
Thank you.

[00:13:15] Speaker 02:
Good morning.

[00:13:17] Speaker 02:
The court should affirm the Veterans Court's judgment.

[00:13:20] Speaker 02:
First, with respect to the Robinette Rule, Mr. Kerbar argues that that rule is still in existence.

[00:13:26] Speaker 02:
But the rule that he cites was based on a prior version of the statute, a prior version of 5103A, and that version no longer exists.

[00:13:33] Speaker 01:
But if the revisions to the statute, there's no indication that the Congress was intent on limiting the rights on the duty to assist, right?

[00:13:42] Speaker 02:
No.

[00:13:42] Speaker 02:
But if you look at what, and interestingly enough, I think Davis makes this point.

[00:13:46] Speaker 02:
Davis makes clear that there is no specific notice requirement in the new 5102, which was the old 5103, with some clarification.

[00:13:56] Speaker 02:
And what Davis says is that the new 5102 simply clarified the VA's existing duties.

[00:14:01] Speaker 02:
In other words, there was in essence no duty under the prior version to provide specific notice.

[00:14:08] Speaker 00:
Looking at the specific facts here, the veteran per se undoubtedly understood when he was told you needed a contemporaneous diagnosis, which you didn't get at the time he was in the service.

[00:14:23] Speaker 00:
And, but without counsel, and he had subsequent exams and all the rest of it, but the specific point on which he was denied eventually was exactly a medical opinion on that point.

[00:14:42] Speaker 00:
And how, this is the gap that I think it is fair to say it was not so clearly filled by the VA that gave him another medical exam.

[00:14:52] Speaker 00:
But they didn't tell him you must get a competent medical opinion going back to the time he was in service rather than his current affliction.

[00:15:04] Speaker 00:
Is this, this seems to be the issue on which there was a failure of communication.

[00:15:13] Speaker 00:
And isn't the question whether in fact the veteran should have been expected to have understood that there was this one

[00:15:21] Speaker 00:
gap in the trail of evidence going back to when he was in service and that was all that he needed because he never from all of the records and all of the current exams that he had doesn't seem to be anything going back to fill that gap except he says well my doctor told me and to understand that that was too far in the area of hearsay and that he had to plug that gap.

[00:15:50] Speaker 02:
Certainly, that's what he's alleging.

[00:15:53] Speaker 02:
Let me make a couple of points, Your Honor.

[00:15:55] Speaker 02:
First, of course, this Court has held on three occasions that 5103A requires what the Court has called generic notice, which although it's specific, it doesn't ride to the level of specificity that Mr. Cooper asserts.

[00:16:10] Speaker 00:
But that's the problem here, isn't it?

[00:16:11] Speaker 00:
What's generic and what's specific?

[00:16:12] Speaker 02:
Right.

[00:16:13] Speaker 02:
Now, in the Wilson case, this Court noted that

[00:16:17] Speaker 02:
5103 is in fact part of a comprehensive scheme whereby notice is provided to veterans.

[00:16:24] Speaker 02:
And part of that scheme is that after the RO issues a decision, in addition to sending what we call generic notice at the beginning of the process, for example, after the RO issues a decision on a claim, it provides notice to the veteran of the reasons for that decision.

[00:16:42] Speaker 02:
And if you look at, for example,

[00:16:44] Speaker 00:
I didn't see where the RO ever specifically said, this is what you must do.

[00:16:50] Speaker 02:
Right.

[00:16:51] Speaker 02:
Well, if you look at page 92 of the joint appendix, and that is the 2003 rating decision, the RO makes two points on that page.

[00:17:03] Speaker 02:
At the bottom of 92, the RO says, you claim that the surgeon who performed your ventral hernia surgery told you that there was a possibility that your chronic right leg

[00:17:13] Speaker 02:
right lower extremity lymphedema was related to pressure that was being applied in the right renal area as a result of your hernia.

[00:17:22] Speaker 02:
The RO noted that fact and then noted that you stated that you only filed a claim for service connection because of what the surgeon told you and that you didn't think these two conditions were related but felt that you would like to have it evaluated anyway.

[00:17:33] Speaker 02:
Of course the VA did have it evaluated, but the point is the RO certainly referenced his own statement

[00:17:40] Speaker 02:
and earlier on on that same page, the RO explained that the evidence simply doesn't show that his lymphedema was service-connected, was related to any sort of service-connected condition.

[00:17:54] Speaker 02:
My point is only that there is a... And specifically not related to the ventral... The hernia, right, right, right, exactly.

[00:18:03] Speaker 02:
My point is simply that if we're concerned about fairness to the veteran, not only is there extensive

[00:18:10] Speaker 02:
what we call generic notice provided in this case, but there was very specific notice provided by the RO not just on this occasion, but on at least two other occasions as well.

[00:18:21] Speaker 01:
And then subsequent to this, they ordered a new medical exam.

[00:18:24] Speaker 01:
That's right.

[00:18:25] Speaker 01:
There's no charge that that medical exam was not thorough or didn't look at everything.

[00:18:31] Speaker 02:
No, Your Honor.

[00:18:32] Speaker 02:
I did want to just address one

[00:18:34] Speaker 02:
One argument that I think Mr. Cooper is now making, he seems to be saying, what the Veterans Court said is that obviously the sort of specific notice that he is seeking isn't required by 5103 and Mr. Cooper didn't identify any other place within the statute or the regulations that requires that sort of specific notice.

[00:18:57] Speaker 02:
He seems to be saying now that that specific notice is required by

[00:19:03] Speaker 02:
the new 5102, which is similar or a clarification of the old 5103.

[00:19:09] Speaker 02:
First I just note that in fact in his brief at page 10, he actually stated, footnote 3, unlike the appellant in Davis, Mr. Cooper never argued that the VA's Robin obligations were transferred to 38 U.S.D.

[00:19:27] Speaker 02:
5102B.

[00:19:29] Speaker 02:
So he seemed, he in fact

[00:19:31] Speaker 02:
stated in his brief to this court that he's not making that argument.

[00:19:35] Speaker 02:
Moreover, if you look at... Well, he also says 5103A, both old and new, wasn't the only statute.

[00:19:43] Speaker 02:
Right.

[00:19:44] Speaker 02:
And so that seemed to be the provision he's relying upon.

[00:19:46] Speaker 02:
But if you look at 51, even if he did argue that 5102 now contains that specific notice requirement, that statute is plain on its face.

[00:19:54] Speaker 02:
What that statute concerns is the situation where

[00:19:56] Speaker 02:
an application for benefits on its face as missing information such as a social security number or name or something to that effect.

[00:20:04] Speaker 02:
And the VA obviously in that situation is required to notify the veteran of the missing information.

[00:20:09] Speaker 02:
In Davis, the Veterans Court addressed this very argument and said that statutory provision does not require specific notice of evidence that the veteran could or should obtain to support his or her claim.

[00:20:24] Speaker 02:
So unless the court has further questions, we respect the request that the court affirms the Veterans Court's decision.

[00:20:30] Speaker 02:
Thank you.

[00:20:40] Speaker 04:
I'd like to pick up on the notion that the government suggested in relationship to this court's decision in Wilson, recognizing that the enactment by Congress was part of a comprehensive scheme.

[00:20:54] Speaker 04:
Part of that comprehensive scheme is 5102 small b. In fact, in Robinette, Judge Steinberg, in explaining why the word application as used in the then 5103 small a included the type of information evidence that was required to be discussed by the VA in a subsequent independent duty to provide notice,

[00:21:21] Speaker 04:
Judge Steinberg explained that it was part of the overall scheme to make sure that the veteran understands what's missing from their application.

[00:21:31] Speaker 01:
Can I just move you on a little bit?

[00:21:33] Speaker 01:
What relief are you seeking here?

[00:21:37] Speaker 04:
A remand to the Veterans Court to reconsider its decision, to re-adjudicate its decision in light of the holding in Robinette.

[00:21:45] Speaker 04:
Robinette was what was placed.

[00:21:47] Speaker 01:
Okay, so you're suggesting the only way you can prevail here is if we determine that the holding in Robinette, the position in Robinette, trumps all the subsequent cases and the statute and so forth.

[00:21:59] Speaker 04:
Not that it trumps it, Your Honor.

[00:22:01] Speaker 04:
We do not suggest at all that Robinette trumps.

[00:22:04] Speaker 04:
Robinette creates a separate statutory interpretation of an independent duty.

[00:22:09] Speaker 01:
It's a practical matter for purposes of what the veteran is going to get or not get out of this.

[00:22:16] Speaker 01:
I'm having a hard time tracing back what kind of relief, even if all stars aligned in his favor, he could get.

[00:22:24] Speaker 01:
Firstly, even assuming there was a doctor who made some statement to him, his surgeon, in 2002 that it may be related.

[00:22:31] Speaker 01:
So I guess they could go and try to find this doctor and get a statement now, but that would only lead, would it not, to, they're not going to give them the award based on the statement.

[00:22:41] Speaker 01:
They are going to, what are you asking for, another medical exam then?

[00:22:46] Speaker 04:
Well, no, I don't think another exam would be necessary.

[00:22:48] Speaker 04:
It would be a question of examining the opinion that was offered.

[00:22:51] Speaker 04:
And I believe you're correct that that's what is the ultimate goal here is for Mr. Cooper with the assistant.

[00:22:59] Speaker 01:
There is no opinion that was offered.

[00:23:00] Speaker 01:
I mean, the only statement we have is that the doctor said it might be related.

[00:23:06] Speaker 01:
He didn't give a diagnosis as to what the basis for that conclusion was, right?

[00:23:11] Speaker 04:
But as Judge Newman pointed out, this was a pro se veteran before the agency.

[00:23:15] Speaker 04:
When he gets before the court, he gets an attorney, but that attorney cannot submit any more evidence.

[00:23:22] Speaker 04:
That attorney cannot go out and get or find this surgeon and develop that evidence and submit it.

[00:23:29] Speaker 04:
If the court had recognized that independent duty under Robinette, then it would have been sent back for the VA to provide that notice and give him the opportunity to go find this surgeon with the assistance of his attorney

[00:23:42] Speaker 04:
and get a written report in order to test whether or not that written report is sufficient to establish the causal connection with the injury and service.

[00:23:51] Speaker 01:
But he did subsequent to that get an exam which evaluated whether there was service, which ultimately, in my history of dealing with these cases, what the veteran is typically seeking is an exam.

[00:24:02] Speaker 04:
That's correct, Your Honor.

[00:24:03] Speaker 04:
And we are not seeking another exam.

[00:24:05] Speaker 04:
We are seeking the opportunity for him to get

[00:24:09] Speaker 04:
an opportunity to locate that surgeon, get that surgeon to reduce his opinion to writing, and submit that opinion in writing, and have that considered with all of the other evidence.

[00:24:20] Speaker 04:
That's what is contemplated by Robinette.

[00:24:23] Speaker 04:
That's what's contemplated by the rule of law in Robinette, that the veteran be put on notice to have the opportunity to get that information and submit it.

[00:24:34] Speaker 04:
If he submits it and it isn't sufficient, then the veteran does not prevail.

[00:24:39] Speaker 01:
Thank you very much.