[00:00:00] Speaker 02: The first case today is 2014-7108, Herbert v. McConnell. [00:00:07] Speaker 03: Mr. Cameron, please proceed. [00:00:14] Speaker 03: We're appealing the Veterans Court's misinterpretation of consumption of regularity in addressing the question of whether to be a properly mailed August 2003 rating decision. [00:00:28] Speaker 03: We believe that the court, the Veterans Court, applied an incorrect test in requiring that the Veterans pro se evidence must indicate that the purpose of the request was the result of an irregular VA mailing. [00:00:47] Speaker 03: And that places a burden on an unlicited person who is not going to know whether [00:00:58] Speaker 03: You know, the VA's mailing has been irregular or irregular. [00:01:02] Speaker 03: All he knows is he hasn't received what he thinks he should have received on his claim. [00:01:08] Speaker 03: And so he sends his correspondence in. [00:01:12] Speaker 03: I would also point out when Mr. Herbert called the VA in the appeal period for the rating decision, that he informed the VA regional office that he wanted to appeal. [00:01:28] Speaker 03: On that day, it appears that the original office planned to send him a copy of it in Iowa. [00:01:36] Speaker 03: And within approximately six days, the same person appears to have reviewed the claims file and decided, concluded that there was not a VF-19 in the file and they had not received an appeal. [00:01:54] Speaker 03: Well, that was not one pending, and so they sent [00:01:57] Speaker 03: VA form 9 to the veteran so that he could complete his appeal. [00:02:03] Speaker 03: Our contention is that where the VA recognizes that the veteran needs to file a VA form 9 to complete his appeal, that's a recognition by the VA that it's received his NOD and has issued a second case on the claim. [00:02:21] Speaker 03: Because we know under the statute [00:02:23] Speaker 03: The veteran is not required to file his VA form 9 for formal appeal until after he files his notice of disagreement and after the VA has issued the required statement of the CACS. [00:02:34] Speaker 01: One of the things that I found difficult to ferret out here was to keep the various strains of his various claims straight. [00:02:45] Speaker 01: He had made a number of claims going back, I guess, to 1993. [00:02:48] Speaker 01: Well, 1993. [00:02:52] Speaker 01: ultimately made a claim in 2000, but made several different claims, including one as to which there was a denial, I guess, in February 2002 regarding the back and left knee, and a statement of the case ultimately in March 2003. [00:03:12] Speaker 01: So it wasn't clear to me whether the [00:03:18] Speaker 01: the appeal that they were referring to in the little cryptic note on the piece of paper was an appeal from that denial and statement of the case, or an appeal from something that happened in August, I guess, of 2003. [00:03:32] Speaker 01: Can you enlighten us at all on that? [00:03:35] Speaker 03: I can. [00:03:35] Speaker 03: I think I can. [00:03:36] Speaker 03: You're referring to the February 2002 rating decision, 8182. [00:03:41] Speaker 01: Right, which then, I guess, gave rise [00:03:44] Speaker 01: Or perhaps it didn't, because there was then a request for reopening that intervened. [00:03:49] Speaker 01: But there was a statement of the case that was issued in March 2003. [00:03:53] Speaker 03: That was all that claim. [00:03:56] Speaker 01: Right. [00:03:57] Speaker 01: Now, I guess my question is, the natural assumption would be if the VA is the official that's making a determination that this is something as to which he needs a Form 9, [00:04:10] Speaker 01: The assumption would be that that official would know that this is right for an appeal, which would be where there's an SMC, right? [00:04:18] Speaker 03: Where an SMC is issued within the last 60 days of the last one year, where the veteran has the potential to file a timely formal appeal in response to it. [00:04:31] Speaker 03: But in the same case that you're referring to, the March 2003. [00:04:38] Speaker 01: He just asked, what's the state of mind [00:04:40] Speaker 01: case. [00:04:42] Speaker 01: So there are several different cases going on at the same time. [00:04:46] Speaker 01: So it wasn't clear to me, I guess what I'm saying, it wasn't clear to me that they were referring to a case as to which there had not yet been a statement of the case. [00:04:53] Speaker 01: Right. [00:04:56] Speaker 03: I think that when he went, you know, it is a cryptic note. [00:05:01] Speaker 03: I agree with that. [00:05:02] Speaker 03: But when he called in August 2004, that March 2003, [00:05:10] Speaker 03: in a 2002 claim were finally denied. [00:05:14] Speaker 03: I mean, there was no appeal possible at that point because he was required to file his VA form 9 on that claim by March of 2004. [00:05:25] Speaker 03: It started by May of 2004. [00:05:27] Speaker 03: So in August of 2004, when he called about a different claim, [00:05:34] Speaker 01: Well, that's the question, I guess. [00:05:36] Speaker 01: Was he calling about a different claim? [00:05:37] Speaker 01: What claim was he calling about? [00:05:39] Speaker 01: This wasn't clear to me in the record. [00:05:41] Speaker 01: I think that it wouldn't serve him any useful purpose to call about the earlier claim. [00:05:46] Speaker 01: But he wouldn't necessarily know that. [00:05:50] Speaker 01: And presumably, unless the VA official who took the call and wrote the note had looked at the record, they wouldn't know that the time had expired for that case. [00:06:03] Speaker 03: Well, assuming that they had the claims file, so I assume that they did look at the claims file, if they told him what he needed to do in the scripted note. [00:06:19] Speaker 03: You see, what I'm saying is on that day, on August 2004, he has no viable claims except the one the 2003 denial. [00:06:34] Speaker 03: Because the 2002 breaking decision is already finally denied. [00:06:38] Speaker 01: But it wouldn't make sense to send him a Form 9 at that point, would it? [00:06:42] Speaker 01: I mean, wouldn't it? [00:06:43] Speaker 01: Isn't the problem at that point that he hasn't had a notice of disagreement, which would have triggered the statement of the case, which in turn would have given him a right of appeal? [00:06:54] Speaker 03: Right. [00:06:54] Speaker 03: But that's not my point, Your Honor, is that this descriptive note, as you call it, creates [00:07:01] Speaker 03: in a regularity, a glaring irregularity in terms of whether he's supposed to file a nudge to this agreement or he's required to file a v8 form 9. [00:07:10] Speaker 03: And when the Veterans Court considered his rebuttal to evidence, you know, the court looked at this document and said that, you know, it says it referred, it sent him a new copy of the denial letter, but the court didn't refer to the, you know, the part of the [00:07:29] Speaker 03: you know, the cryptic note that says that, you know, to be required to file a VN-49 to complete his appeal. [00:07:36] Speaker 03: So what I'm saying to you is this document on its face in the claims file during the appeal period of that rating decision creates a glaring contradiction or irregularity and it's not possible to tell us what happened. [00:07:57] Speaker 02: The problem is, doesn't that fall into the category, even if I were to agree with you, of things that aren't within our jurisdiction to decide? [00:08:07] Speaker 02: I mean, they found the presumption of regularity had not been rebutted here. [00:08:11] Speaker 02: And you're saying it should have been rebutted because he called in and told them he didn't have a copy of the decision. [00:08:18] Speaker 02: Well, they held that as an evidentiary matter, that wasn't enough. [00:08:22] Speaker 02: That's really what's at issue in front of us. [00:08:24] Speaker 02: And that's not that bad application of law of fact. [00:08:27] Speaker 02: I don't see how that's a legal question. [00:08:29] Speaker 03: I think, though, there's more to it. [00:08:31] Speaker 03: I think it's based on an interpretation, a misinterpretation. [00:08:35] Speaker 03: Of what? [00:08:35] Speaker 03: Of the presumption of irregularity, that the evidence would need to indicate that it was a result of an irregular mailing. [00:08:44] Speaker 03: I mean, that almost places a specific burden on the veteran to point out that his correspondence or his contact was for the purpose of showing irregularity in the VA's mailing. [00:08:59] Speaker 03: And I think that unduly limited the very important consideration of the rebuttal evidence. [00:09:07] Speaker 04: What would you think is the correct legal interpretation for when the presumption of regularity should be rebutted? [00:09:17] Speaker 04: How would you articulate that interpretation? [00:09:21] Speaker 03: I think that if the document creates an irregularity on its face, as is foreheld in the United States versus Rose's, that the presumption of regularity doesn't benefit the document. [00:09:35] Speaker 01: Regularity in what respect exactly? [00:09:38] Speaker 01: In other words, my understanding is that if the document has the wrong address, [00:09:43] Speaker 01: That's an irregularity. [00:09:45] Speaker 01: And it's on its face. [00:09:46] Speaker 01: You can see they obviously sent it to an address that isn't his address. [00:09:50] Speaker 01: And therefore, that's virtually proof positive that he didn't receive it. [00:09:55] Speaker 01: But what is the nature? [00:09:57] Speaker 01: The document on his face was sent to his address, it appears. [00:10:02] Speaker 01: And there's no indication that the document was not sent. [00:10:07] Speaker 01: Nothing on the face of it indicates that it wasn't sent. [00:10:10] Speaker 01: There's not an extra copy, one too many copies in the file or anything like that, which is the normal kind of irregularity in the sending process. [00:10:19] Speaker 01: What other kinds of irregularity do you think fit within this doctrine of irregularity and presumption of regularity? [00:10:29] Speaker 03: Well, I think that during the appeal period, he provided contact, he contacted the VA and [00:10:40] Speaker 03: and suggested he placed, essentially resulted in evidence being placed in his claims file, which tended to indicate that he had not received the writing decision, which suggests that the VA had not mailed it. [00:10:57] Speaker 01: Well, the question is what evidence? [00:11:02] Speaker 01: There's no evidence on the face of the documents we have that the VA didn't mail. [00:11:09] Speaker 01: The document, right? [00:11:10] Speaker 03: Under the presumption of regularity, the VAD in mail, the document. [00:11:13] Speaker 01: OK. [00:11:15] Speaker 01: And what I'm having a hard time figuring out is exactly what is the legal rule that you think should be applied and was not applied in this case to excuse or get around the presumption of regularity. [00:11:31] Speaker 01: How would you characterize that legal rule that you're asking us to adopt? [00:11:37] Speaker 03: He placed evidence, the veteran placed evidence in his claims file during the appeal period of that writing decision that tended to indicate that he had not received it and therefore the VA had not mailed it. [00:11:50] Speaker 04: Would the rule be that any time a veteran requests a copy of the RO denial letter, that is a rebuttal of the presumption that the RO letter was mailed in the first place? [00:12:02] Speaker 03: I think that that would be evidence. [00:12:04] Speaker 04: That would be rebuttal of evidence. [00:12:06] Speaker 04: Right, but so much of your case rests on the notion that there was a misinterpretation of the presumption and how one rebuts the presumption. [00:12:17] Speaker 04: We're trying to work with you to figure out what is the legal rule that you're proposing. [00:12:28] Speaker 04: Is it the rule that any time a veteran asks for a copy of the RO letter that that is a [00:12:36] Speaker 04: That rebuts the presumption that the R.O. [00:12:39] Speaker 04: letter was ever mailed in the first instance. [00:12:41] Speaker 03: I think that it would when it indicates that he hadn't received it, that the VA had not mailed it. [00:12:49] Speaker 03: But I think the most important... Well, when would it indicate? [00:12:54] Speaker 01: Judge Jen's question is too big. [00:12:56] Speaker 01: It's a heart of it. [00:12:58] Speaker 01: Is it enough, do you think, if all we have is that the veteran called and said, [00:13:04] Speaker 01: I didn't receive this letter, this notice of decision, or where is my notice of decision? [00:13:10] Speaker 01: Send me a copy, send me another copy. [00:13:12] Speaker 01: Is that enough to rebut the presumption of regularity? [00:13:17] Speaker 03: I'm not sure that that is enough to rebut, but I think that it is rebuttal of evidence. [00:13:24] Speaker 03: And in this case, the letters did not consider all of the evidence in that it did not consider that at the same [00:13:32] Speaker 03: time that the VA sent him a copy of his rating decision, they also sent him a VA Form 9 requiring to file ads, which suggests, contrary, a situation that the VA had already received his NOD and issued a statement of the case. [00:13:50] Speaker 04: Why would the sending of a Form 9 suggest that the veteran didn't receive a copy of the RO denial letter back in August 2003? [00:14:02] Speaker 03: I think that it would suggest that he had already filed his NOD to it, or that he had treated this cryptic note as his NOD to that rating decision. [00:14:16] Speaker 02: Okay, do you want to save some time before we go to Mr. Cameron? [00:14:20] Speaker 02: Okay. [00:14:20] Speaker 00: Thank you. [00:14:21] Speaker 02: Mr. DeGioia? [00:14:33] Speaker 05: Good morning, and may it please the court. [00:14:36] Speaker 05: The parties agree on a few key points in this case, which I think are critical. [00:14:40] Speaker 05: First of all, there's no dispute about the applicable legal standards. [00:14:45] Speaker 05: We indicated in our brief that the appropriate legal standard was whether there's been clear evidence for about the presumption of regularity. [00:14:51] Speaker 05: And in his reply brief at page three, Mr. Herbert acknowledges that's a test. [00:14:55] Speaker 02: So I guess the question is what [00:14:58] Speaker 02: could constitute clear evidence regarding the presumption of regularity. [00:15:03] Speaker 02: Is it the government's view that suppose that the veteran had called the agency six times over the span of two weeks saying, I still don't have this. [00:15:15] Speaker 02: I don't want my appeal period to run out. [00:15:16] Speaker 02: Can you fax it to me? [00:15:18] Speaker 02: Can you email it to me? [00:15:20] Speaker 02: And he keeps calling back and saying, I still haven't gotten it. [00:15:22] Speaker 02: Here's the address. [00:15:23] Speaker 02: Here's the fax number. [00:15:24] Speaker 02: I suppose there was this overwhelming evidence of record that he hadn't received it. [00:15:30] Speaker 02: He was trying to diligently pursue his rights. [00:15:33] Speaker 02: Would that alone be enough if you look back in your file and you see, well, the address is correct in here. [00:15:39] Speaker 02: I don't know why you didn't receive it. [00:15:40] Speaker 02: Would that be enough? [00:15:43] Speaker 05: Your Honor, I'm not sure that that still would be enough. [00:15:46] Speaker 05: I think that's still within the category of non-receipt. [00:15:49] Speaker 05: And under this Court's precedent and under the Veterans Court precedent, non-receipt alone [00:15:54] Speaker 05: Now there may be some other ground that that veteran could pursue. [00:16:00] Speaker 02: What precedent of ours says non-receipt is not enough? [00:16:04] Speaker 05: The Miley case from the court in 2004 would be that case. [00:16:08] Speaker 02: And what exactly does it say? [00:16:10] Speaker 02: Because it was my understanding that the standard that you're asserting is appellate asserts non-receipt and provides clear evidence. [00:16:19] Speaker 02: Of what? [00:16:20] Speaker 02: That's what I need to understand. [00:16:21] Speaker 02: Of what? [00:16:21] Speaker 02: Clear evidence of the fact that it must not have occurred in a regular way, the mailing. [00:16:29] Speaker 05: Right? [00:16:30] Speaker 05: That's correct. [00:16:31] Speaker 02: Oftentimes... Can't his repeated phone calls over and over with a sense of urgency convey that? [00:16:37] Speaker 02: Can't that be not just an assertion of not received, but evidence of the fact that something must have happened because he failed to receive it? [00:16:47] Speaker 05: Well, I think the fact that he's repeatedly calling [00:16:50] Speaker 05: would just again indicate not received. [00:16:52] Speaker 05: And there could be other grounds. [00:16:53] Speaker 05: If the VA knows that the deadline is approaching and does not respond to that request in a timely manner, there could be an argument before the RO that the VA didn't properly assist the veteran or didn't properly respond to the veteran. [00:17:10] Speaker 05: That would be a different claim than the presumption of regularity. [00:17:12] Speaker 05: The presumption of regularity solely deals with whether in fact the decision was mailed. [00:17:18] Speaker 05: And calling several times would simply indicate non-receipt. [00:17:22] Speaker 05: The extra factor that's usually present in these cases is that oftentimes there is an incorrect address. [00:17:27] Speaker 05: So there are a lot of cases out there where the zip code is incorrect or there's no apartment number. [00:17:32] Speaker 02: Well, those are easy cases. [00:17:34] Speaker 02: I mean, nobody's disputing them. [00:17:36] Speaker 02: I'm wondering if ever there could be a sufficient record of non-receipt in the absence of an incorrect address. [00:17:43] Speaker 02: I mean, if he didn't receive it, he can't come forward and say, see, look, you got the zip code wrong when you typed it out. [00:17:49] Speaker 02: All you have is whatever copy exists in the file at the VA, right? [00:17:54] Speaker 05: That's correct. [00:17:57] Speaker 05: Sure, to answer your honest question, again, that's not the situation that's here, just to be clear. [00:18:02] Speaker 05: We don't have a record of one particular call. [00:18:05] Speaker 04: Would that back pattern be a case for tolling of the one-year period? [00:18:09] Speaker 05: Yes, that perhaps could be the argument, was that if you make repeated calls and the regional office does not respond to those in a timely manner and the regional office is aware that your deadline is approaching, then you could make the argument for equitable tolling that you diligently pursued it and these are extraordinary circumstances. [00:18:31] Speaker 05: Notably, Mr. Herbert did not push that argument here. [00:18:33] Speaker 05: It was not considered by the board or the veterans. [00:18:36] Speaker 01: So it seems to me that you're making kind of a two-part argument with respect to the presumption of regularity. [00:18:45] Speaker 01: And following up on the presiding judge's questions, the first part seems to be that there is a rebuttable presumption [00:18:55] Speaker 01: regularity with respect to mailing, which can be rebutted, for example, by having the wrong apartment number or own zip code. [00:19:02] Speaker 01: But the second part seems to be that it is essentially an irrebuttable presumption of receipt once the mailing is shown to have been regular. [00:19:11] Speaker 01: Therefore, that is to say, [00:19:13] Speaker 01: Once you see that the letter, even if you have the perfect proof that the letter actually went out and got into the hands of the postal service, there's sort of an irrebuttable presumption that it must have been Steve. [00:19:24] Speaker 01: Isn't that, is that in effect what you're saying here? [00:19:28] Speaker 01: I don't think it's absolutely irrebuttable, but again, as much equally as... But I think when you're talking with the side judge, you were saying, and that's what [00:19:38] Speaker 01: made me think that you have a different rule for the receipt issue. [00:19:42] Speaker 01: You're saying, well, that goes to receipt. [00:19:43] Speaker 01: And that's outside of the scope of the presumption of regularity that we're concerned with, because you're going to assume conclusively that once it goes out of the VA, the right address, and all indications that it's on its course to him, that the fact that it doesn't actually get into his hands is his problem, not yours. [00:20:04] Speaker 01: Is that your position? [00:20:07] Speaker 05: There may be a situation, Your Honor, where there is some evidence that the veteran is able to come forward with, even in that situation, that meets the clear evidence standard. [00:20:16] Speaker 01: Wouldn't that fall within Judge Moore's example of somebody that says, I haven't received it, I haven't received it, I haven't received it? [00:20:25] Speaker 01: That sounds like pretty good evidence that he didn't receive it. [00:20:30] Speaker 05: That's correct, Your Honor, but I guess I'm having trouble squaring that with [00:20:34] Speaker 05: Again, the precedent that's out there that says that non-receipt alone, an assertion of non-receipt, and I don't know that multiple assertions of non-receipt would be treated any differently, an assertion of non-receipt is not sufficient to rebut the presumption. [00:20:46] Speaker 05: Again, as Judge Ten pointed out, there may be in that situation where the regional office is aware, the deadline is approaching, a veteran is making a lot of requests showing diligence, perhaps, and extraordinary circumstances, there may be a case for tolling. [00:21:01] Speaker 02: Well, I don't want to focus on Tony. [00:21:03] Speaker 02: I'm trying to understand because the veteran has raised an argument about the legal standard for the presumption of regularity. [00:21:12] Speaker 02: And so I'm trying to understand exactly what the presumption of regularity entails. [00:21:18] Speaker 02: And I think that just raising the question to get to the heart of it, which is, is it only about mailing, or is it also about receipt? [00:21:27] Speaker 02: And I mean, I look at many of the veterans' court [00:21:31] Speaker 02: cases, Shute and Clark and others, and they talk about how you can rebut. [00:21:37] Speaker 02: Now, these are Veterans Court cases. [00:21:38] Speaker 02: They're not ours, for sure. [00:21:40] Speaker 02: They talk about an assertion of non-receipt standing alone does not rebut the presumption of regularity in the VA's mailing process. [00:21:48] Speaker 02: Instead, the clear evidence requirement mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by the VA that was consequential to delivery, [00:22:01] Speaker 02: And it goes on to talk about, and that's why I guess what I'm wondering is, are there circumstances beyond a tangible indication of an address inaccuracy that could give rise to a belief that the veteran really has established you didn't receive it, like those repeated phone calls, or are those just not eligible under the presumption of regularity for creating a rebuttal by the veteran? [00:22:29] Speaker 05: Before I directly address your question, I'll just note that that's not the situation that we have here. [00:22:35] Speaker 05: We just have one phone call, not repeated phone calls. [00:22:38] Speaker 02: And in addition... Yes, but if the Veterans Court or the board was working under the misimpression that evidence of non-receipt by the veteran could never meet whatever the legal standard is for the presumption of regularity, [00:22:55] Speaker 02: then even one phone call matters. [00:22:57] Speaker 02: It may be harmless error in this case or maybe not. [00:22:59] Speaker 02: But the question of what was the lower tribunal of the impression was eligible to rebut this presumption or kind of error. [00:23:08] Speaker 05: And I think, I mean, the clear evidence standard is not a rigid task. [00:23:14] Speaker 05: So this is dependent on the RO and the board [00:23:18] Speaker 05: to look at the evidence and determine in a specific situation. [00:23:22] Speaker 01: Against what legal task is what's really important? [00:23:25] Speaker 05: Well, I think that there are a lot of indicia of non-receipt. [00:23:29] Speaker 05: One is the address, which we discussed. [00:23:31] Speaker 05: Another one that's been dealt with in the case law is where, for instance, the rating decision is missing a cover sheet. [00:23:38] Speaker 05: So there's no indication of any address that it was sent to. [00:23:42] Speaker 05: Another indicia that is in the case law is that there's something abnormal in the claims file. [00:23:50] Speaker 05: Sometimes a document is missing the statement of appellate rights or there's some other attachment to the document that's missing. [00:23:58] Speaker 05: So those are the sorts of indicia that this court and the Veterans Court as well as the board have looked to in order to determine whether there's enough irregularity there to revoke the presumption of [00:24:11] Speaker 05: regularity. [00:24:13] Speaker 05: Non-received is a difficult, you know, this court's presence makes it clear that non-received is not enough, I'm your assertion, because that's more difficult to gauge. [00:24:24] Speaker 01: That's, you know, the veteran's word against... Well, suppose that the veteran lived in the Ninth Ward in New Orleans during the time of Katrina, and the mailing was perfectly [00:24:40] Speaker 01: proper mailing, proper address, everything else was sent out a week before Katrina. [00:24:46] Speaker 01: And the veteran said, I didn't receive it. [00:24:48] Speaker 01: Would that be evidence that would be sufficient to rebut the presumption of regularity, the fact that the hurricane basically destroyed the infrastructure of the city, including presumably postal deliveries? [00:25:02] Speaker 05: Well, sir, that would show that the mailing practices of the VA were not regular. [00:25:06] Speaker 01: No, no, no. [00:25:07] Speaker 01: The VA sent a letter out. [00:25:09] Speaker 01: Everything the VA did. [00:25:10] Speaker 01: Up until they handed it over to the Postal Service, it was perfectly regular. [00:25:16] Speaker 01: But the question is, does the possibility, indeed likelihood, and their certainty that there was a problem in delivery, does that work to rebut the presumption of regularity? [00:25:29] Speaker 01: This goes right back to the question of whether the court, in saying that you need clear evidence that the VA did not follow its mailing practices. [00:25:39] Speaker 01: that you need that kind of evidence in order to revoke the presumption of regularity. [00:25:43] Speaker 01: Because my case presumes the VA followed some mailing practices. [00:25:48] Speaker 01: Do you then conclude that in my case, he loses? [00:25:52] Speaker 05: Well, the text is that the VA did not follow its mailing practices or that its mailing practices were not regular. [00:25:58] Speaker 01: And I think in your situation... No, no, the mailing practice was regular. [00:26:01] Speaker 01: Well, unless by mailing practice you include all the activities of the postal service. [00:26:05] Speaker 05: Well, I would think that mailing something to a hurricane-stricken region and expecting someone to receive it [00:26:11] Speaker 05: would be irregular. [00:26:12] Speaker 01: It was nailed a week before the hurricane. [00:26:14] Speaker 01: So the VA, in other words, the VA was totally non-culpable in this. [00:26:18] Speaker 01: And for that matter, neither was the post office culpable. [00:26:21] Speaker 01: But we can say with some assurance that the letter was not received. [00:26:25] Speaker 01: If the answer he loses, because it doesn't satisfy the test that I just read you. [00:26:31] Speaker 05: I think that would be a factor that would go into the clear evidence standard. [00:26:35] Speaker 05: predict how that would come out in the hypothetical. [00:26:37] Speaker 01: But what you're saying is that even though the VA had followed its regular mailing practices to a T, nonetheless, you could rebut the presumption of regularity. [00:26:50] Speaker 01: And if you're saying that, why isn't that test different from the test that was applied by the CAVC in this case? [00:26:58] Speaker 05: The CAVC applied the clear evidence test. [00:27:02] Speaker 01: Well, clear evidence, but against what legal standard? [00:27:05] Speaker 01: When I say test, I'm talking about the legal standard, not the probative degree of the IAS. [00:27:11] Speaker 05: Right. [00:27:13] Speaker 05: I still think that under your hypothetical, that falls under whether the mailing practices were regular. [00:27:17] Speaker 05: Even if the VA mailed it in advance of an event, if the VA has evidence that suggests that mail is not being delivered to a specific region, [00:27:25] Speaker 05: then I think that would be evidence of the mailing practice. [00:27:28] Speaker 02: Let me give you another hypothetical. [00:27:31] Speaker 02: My mailman gets angry when I park the minivan too close to the mailbox. [00:27:36] Speaker 02: Not when it blocks the mailbox, mind you, but if it's just so close as to require him to have to get out of the car as opposed to be able to lean up, put the mail in, and keep driving forward. [00:27:46] Speaker 02: He doesn't even like to have to put the mail truck in reverse. [00:27:49] Speaker 02: He leaves me tons of mean little post-it notes handwritten by him all the time. [00:27:55] Speaker 02: And in fact, verbally told me at various points when I come home, usually I've got a mailbox full of junk. [00:28:02] Speaker 02: And sometimes I come home and there's nothing in it. [00:28:03] Speaker 02: And the next day the mailman says, next time don't put that mail, that minivan there, right? [00:28:09] Speaker 02: He is clearly, unequivocally admitting to me that there are days when he doesn't deliver my mail as a penalty for my minivan being too close. [00:28:16] Speaker 02: I never complain. [00:28:17] Speaker 02: Obviously not much comes in the mail that I care about. [00:28:20] Speaker 02: However, [00:28:20] Speaker 02: Suppose that there was unequivocal evidence, like the mailman actually filed an affidavit saying he threw away my mail on those days because he was angry about my minivan. [00:28:30] Speaker 02: Now, I'm a veteran and he happened to throw away my receipt of the decision in my case. [00:28:37] Speaker 02: Now, the VA couldn't have predicted by virtue of a hurricane. [00:28:40] Speaker 02: That's a national catastrophe that is well known. [00:28:43] Speaker 02: But suppose I offer this affidavit by my post office. [00:28:46] Speaker 02: employee that says he threw away all my mail for an entire week as a penalty to me and whatever, whatever, whatever. [00:28:54] Speaker 02: The VA has done nothing wrong, but it's also making a really strong case for my non-receipt. [00:29:00] Speaker 02: Would that be enough to rebut the presumption of regularity? [00:29:05] Speaker 02: I guess what I'm trying to get at is does the regularity go only to the VA's action or does it extend to other parties' actions within the branch of the government? [00:29:16] Speaker 02: like the post office? [00:29:19] Speaker 05: I think that the clear evidence test is flexible enough to take into account whether or not there is additional circumstance apart from the VA's particular mailing practices. [00:29:29] Speaker 05: I don't think an affidavit from your postal care saying that he didn't deliver the mail, I don't think that evidence would be excluded as not falling within the clear evidence test. [00:29:38] Speaker 01: Or do you think the CAVC would agree with you in that respect, given that they said [00:29:44] Speaker 01: that you need clear evidence that the VA did not follow its regular mailing practices. [00:29:49] Speaker 01: Because that sounds like it doesn't include Judge Moore's postman. [00:29:54] Speaker 05: I don't think the VA, I don't think the veterans court was necessarily trying to contemplate every single situation that could come into play. [00:30:02] Speaker 05: I think the only issue that was really presented here was whether or not the VA had followed its mailing practices. [00:30:09] Speaker 05: And so those were the facts before it. [00:30:13] Speaker 05: And that was a situation with that. [00:30:15] Speaker 05: Again, I think the clear evidence standard is flexible enough to accomplish all of it. [00:30:20] Speaker 05: And I do think that in this case, it's solely about the application of that test. [00:30:25] Speaker 02: OK, Mr. DeBoer, thank you. [00:30:26] Speaker 02: We have your argument. [00:30:28] Speaker 02: Mr. Cameron, let's give him two minutes of rebuttal time, please. [00:30:37] Speaker 03: Under the cases that you referred to earlier, including Chute, [00:30:43] Speaker 03: The courts typically recognize that when the veteran comes forward after the matter and says that I didn't receive it, that's the allegation of non-received. [00:30:59] Speaker 03: But the court has typically found that when the claims file has contained evidence during the appeal period that the veteran did not receive the [00:31:10] Speaker 03: the rating decision, and the court has typically concluded that that is clear evidence to rebut the presumption. [00:31:19] Speaker 03: Now, I believe that the problem here was a misinterpretation by the Veterans Court in applying a very narrow test on page 11, essentially, of its decision that the Veterans document or evidence would have to indicate that the purpose of his request [00:31:40] Speaker 03: was the result of an irregular mailing. [00:31:42] Speaker 03: And, you know, when somebody calls into the VA or they send a letter into the VA, you know, they don't know enough to say, well, you know, my purpose in sending this letter is I want to rebut the presumption of regularity. [00:31:59] Speaker 03: And so I think it's an improper interpretation of the presumption of regularity. [00:32:04] Speaker 03: And I think that was the problem. [00:32:07] Speaker 02: Okay, anything further? [00:32:09] Speaker 02: No, Your Honor. [00:32:09] Speaker 02: Thank you, Mr. Cameron. [00:32:11] Speaker 02: The case is taken under submission. [00:32:12] Speaker 02: I thank both counsels for their argument. [00:32:14] Speaker 03: Thank you. [00:32:15] Speaker 02: Next case.