[00:00:01] Speaker 02:
We've got two cases for argument this morning, and then we will take a break before we hear our third case.

[00:00:08] Speaker 02:
The first case this morning is 147060 Lamb v. McDonough.

[00:00:13] Speaker 02:
Mr. Carpenter.

[00:00:16] Speaker 00:
Good morning, Your Honor.

[00:00:17] Speaker 00:
May it please the Court, Kenneth Carpenter, appearing on behalf of Mr. Carl Lamb.

[00:00:21] Speaker 00:
The Veterans Court mistakenly interpreted the provisions of 38 CFR 3.251 p.a.

[00:00:29] Speaker 00:
as it existed in 1957 to mean that a veteran cannot assert as an adequate reason for failing to report for a scheduled VA examination his lack of notice from the VA of that examination.

[00:00:43] Speaker 00:
Further, the lower court required that there be a showing of fault on the part of the VA as a reason for the veteran's failure to report.

[00:00:51] Speaker 02:
Well, that's your main argument, right?

[00:00:53] Speaker 02:
I mean, that's your legal question.

[00:00:55] Speaker 02:
And I guess I'm having a hard time seeing it

[00:00:58] Speaker 02:
I mean, this wouldn't necessarily be true in all cases, but it seems to me that the reference to fault in this circumstance seemed perfectly appropriate and unique to these circumstances to the extent that he says he didn't get the notice.

[00:01:14] Speaker 02:
What's the next question you ask then to ascertain whether or not he had a reasonable, inadequate reason to report?

[00:01:21] Speaker 00:
Well, in this case, Your Honor, the record is clearly documented.

[00:01:25] Speaker 00:
that the VA's notice was returned to them as undeliverable, and that that was well documented in the file that not only one attempt at notice was made, but a second attempt at notice was made.

[00:01:37] Speaker 02:
So your view is that that was an adequate reason in and of itself?

[00:01:41] Speaker 02:
If it's sent to an address and it's returned, then that satisfies the regulatory language of without adequate reason?

[00:01:48] Speaker 00:
Yes, Your Honor, because there is a documented evidence in the file

[00:01:53] Speaker 00:
that the VA's attempt to notify him to report were unsuccessful and that therefore there was no actual knowledge on the part of the veteran that could impute the sanction that was imposed.

[00:02:06] Speaker 00:
The sanction that is imposed by this regulation is that if you fail to report when you have been notified, then you lose the benefits until you report.

[00:02:17] Speaker 03:
So is that what you want us to interpret the regulation to report?

[00:02:21] Speaker 03:
to say that anytime there's an absence of actual notice that there's always sufficient cause or reason?

[00:02:29] Speaker 00:
Well, I'm not sure that that's necessary in this case because of the way in which the case was decided below.

[00:02:36] Speaker 00:
The case was decided below by saying that there needed to be a showing of fault and that they... What precise language are you relying on to say that there needed to be a showing of fault?

[00:03:03] Speaker 00:
You mean in the Veterans Court decision?

[00:03:05] Speaker 00:
Yes.

[00:03:05] Speaker 00:
Not in the regulation?

[00:03:07] Speaker 00:
Okay.

[00:03:52] Speaker 00:
The lower court at pages three and four of its decision said that the board had determined that the appellant's failure to receive notice of the examination and the subsequent suspension of benefit was not due to the fault on the part of the VA.

[00:04:10] Speaker 00:
So the lower court embraced the board's determination that there needed to be a showing of fault by the VA.

[00:04:19] Speaker 03:
But in context,

[00:04:21] Speaker 03:
isn't that really relating to the fact that what they found was that the fault was on the claimants.

[00:04:29] Speaker 03:
In other words, the claimant knew about his obligation to notify the VA of change of address.

[00:04:33] Speaker 03:
He had done it in the past.

[00:04:35] Speaker 03:
But this time, he didn't notify of any change of address.

[00:04:39] Speaker 03:
He didn't explain why he didn't receive the notice that was admittedly sent to his current address.

[00:04:44] Speaker 00:
Well, with all due respect, Your Honor, that requires a level of clairvoyance on the part of a veteran.

[00:04:50] Speaker 00:
to know that there has been something sent.

[00:04:54] Speaker 00:
What the VA is doing is using the retrospective look back and say, well, you knew you had an obligation to report a change of address.

[00:05:03] Speaker 00:
There's nothing in the record to indicate some reason that he changed his address.

[00:05:09] Speaker 00:
I think in fact what happened in this case is that the address they had was simply incorrect.

[00:05:16] Speaker 00:
as they send it in the notice, and it never actually got physically delivered.

[00:05:21] Speaker 00:
That's not what the factual findings are.

[00:05:23] Speaker 00:
I'm simply saying that I believe that's what happened.

[00:05:26] Speaker 00:
But that's not part of the analysis of this regulation.

[00:05:30] Speaker 00:
The regulation says that it's a failure to report without adequate reason.

[00:05:38] Speaker 00:
The adequate reason in this case was he had no knowledge that there was an examination.

[00:05:43] Speaker 00:
to circle around.

[00:05:44] Speaker 02:
But hypothetically, if we had a circumstance where somebody just went and moved to Hawaii for three years, but kept their current address in DC, and they get the notice, and he obviously doesn't receive it.

[00:05:59] Speaker 02:
They sent it, and he just hasn't received it.

[00:06:02] Speaker 02:
Clearly, he didn't get it.

[00:06:03] Speaker 02:
He can swear up and down, I never received it.

[00:06:06] Speaker 02:
In your view, is that adequate reason not to show up?

[00:06:08] Speaker 00:
No, Your Honor.

[00:06:09] Speaker 02:
In this case... So if they had sent it to the correct address,

[00:06:13] Speaker 02:
and he just for whatever reason never received it, never got it because he wasn't there or he wasn't available, that would not be adequate reason, right?

[00:06:23] Speaker 00:
Yes, but that is not the facts in this case.

[00:06:27] Speaker 00:
In this case, the record is documented that the VA sent the notice to report and got a return from the Postal Service saying that the notice was not delivered.

[00:06:42] Speaker 00:
That non-delivery in your first hypothetical, if the veteran was in fact in Hawaii, would not have changed the fact that the notice had been sent to the correct address in Washington D.C.

[00:06:55] Speaker 00:
and returned not deliverable.

[00:06:57] Speaker 00:
If it was returned not deliverable, you cannot, as the VA and the Veterans Court did in this case, impute knowledge to the veteran that he had an obligation to report.

[00:07:08] Speaker 03:
But it wasn't deliverable because there was no one there to accept it.

[00:07:11] Speaker 03:
It's not that there's no finding in the record that it was the wrong address.

[00:07:15] Speaker 00:
I understand that.

[00:07:16] Speaker 00:
And all that is in the record is the fact that it was not delivered.

[00:07:22] Speaker 00:
So there is actual evidence that the notice was not delivered to the veteran.

[00:07:29] Speaker 03:
But the findings of fact that are below is that it went to the correct address, but there was no one there to accept it.

[00:07:36] Speaker 03:
So it came back because it was sent with a

[00:07:41] Speaker 03:
a return receipt.

[00:07:43] Speaker 03:
There was no one there to accept it.

[00:07:45] Speaker 03:
He said, I just happened to be working somewhere else for six months.

[00:07:49] Speaker 03:
And that was his only explanation.

[00:07:51] Speaker 03:
So we don't have a situation in which they were put on notice that somehow it was the wrong address.

[00:07:56] Speaker 03:
There's actually a factual finding that it was the correct address.

[00:07:59] Speaker 03:
And he gave the VA that address.

[00:08:04] Speaker 00:
And the purpose of this regulation is to suspend benefits

[00:08:10] Speaker 00:
when there is notice that was achieved.

[00:08:15] Speaker 00:
Notice was not achieved in this case.

[00:08:18] Speaker 00:
And what the VA is doing is saying that it's perfectly permissible to suspend benefits when they don't get the notice delivered.

[00:08:27] Speaker 03:
That goes back to my prior question.

[00:08:29] Speaker 03:
So what you're saying is that we should decide as a matter of law that this regulation would apply.

[00:08:36] Speaker 03:
Adequate reason for not appearing would

[00:08:40] Speaker 03:
always exist whenever there was an absence of notice, regardless of what the circumstances were.

[00:08:46] Speaker 03:
Yes, Your Honor.

[00:08:47] Speaker 03:
What if the mail had been received and the claimant just decided not to open his mail?

[00:08:53] Speaker 03:
He sat on it for six months.

[00:08:56] Speaker 00:
Then the presumption of regularity would apply that they sent the notice and it was received.

[00:09:02] Speaker 00:
The VA cannot use the presumption of regularity in this case because the notice was not received.

[00:09:07] Speaker 04:
Can I ask you, didn't we say expressly in the 2002 case, whether that reason, the adequate reason for not reporting, is adequate depends upon the reason Lamb did not receive the notice.

[00:09:21] Speaker 04:
Isn't, aside from everything else, isn't that inconsistent with the position that I think you've just articulated, that non-receipt of the notice itself is always by law adequate reason.

[00:09:34] Speaker 04:
We said it depends on why he didn't get the notice.

[00:09:37] Speaker 00:
And you're citing the earlier case?

[00:09:40] Speaker 04:
Yes, 284 F3rd at 1383, I think is the page.

[00:09:50] Speaker 00:
Well, in that case as presented, it was presented in the context of a different decision that had been made by the Veterans Court.

[00:09:59] Speaker 00:
In this case, we're dealing with a specific decision by both the Board and the Veterans Court that

[00:10:06] Speaker 00:
interprets the regulation to require or to not permit consideration of actual non-receipt and fault on the part of the VA.

[00:10:20] Speaker 00:
That is a different legal proposition than the proposition that was referenced in the earlier federal circuit case.

[00:10:26] Speaker 04:
Can I answer?

[00:10:27] Speaker 04:
This is a clear and unmistakable error case, is that right, that we have in front of us right now?

[00:10:34] Speaker 00:
The underlying

[00:10:36] Speaker 00:
claim is that the original decision should be revised based upon a clear and unmistakable error for the failure to correctly apply this regulation.

[00:10:47] Speaker 04:
And so whether there was a clear unmistakable error depends on what was in the record then.

[00:10:53] Speaker 04:
That's correct.

[00:10:55] Speaker 04:
Then being 1957.

[00:10:56] Speaker 00:
1957.

[00:10:57] Speaker 00:
And it depends upon how this regulation is interpreted.

[00:11:01] Speaker 04:
So the explanations provided subsequently about

[00:11:05] Speaker 04:
He was off working on a job and his wife was elsewhere for a while.

[00:11:10] Speaker 04:
That's interesting background but not otherwise.

[00:11:15] Speaker 00:
It's not pertinent to a consideration of whether there was or was not clear and unmistakable error for the failure to correctly apply this regulation.

[00:11:22] Speaker 04:
Can I ask you another factual question which also might be not pertinent?

[00:11:30] Speaker 04:
Was Mr. Lamb aware of the debiting of the required repayment of severance pay and when that came to a halt?

[00:11:44] Speaker 00:
He was aware of it to the extent that the compensation that was awarded was not being paid.

[00:11:51] Speaker 00:
He was not aware of it, as it were, on a schedule as to when he would then be entitled

[00:11:59] Speaker 00:
to receive the act.

[00:12:01] Speaker 04:
Again, I'm not sure whether this bears, but he submitted a letter in 1998 that said, as of August 1957, there was, I forget what it was, but 34 months left of $17 a month debiting.

[00:12:19] Speaker 04:
So that should have run out in the early summer of 1960.

[00:12:23] Speaker 00:
Yes.

[00:12:23] Speaker 04:
35 years pass before he does anything.

[00:12:31] Speaker 04:
How is it that he did not know that checks that should have started coming were not coming?

[00:12:41] Speaker 04:
It's full stop.

[00:12:43] Speaker 00:
Well, I think it's because of a lack of understanding until 1998 that there should have been a resumption of his benefits.

[00:12:54] Speaker 00:
And to me, it's understandable because he never received benefits.

[00:12:59] Speaker 00:
In other words, this is not a case in which

[00:13:01] Speaker 04:
I can understand if he didn't know that he was supposed to have the severance pay debited and then he wouldn't have had essentially a comparison to use to say oh by now I should start getting the checks and notice their absence and do something about it.

[00:13:21] Speaker 04:
Is that what happened that he wasn't even aware that there was this repayment obligation and it was being

[00:13:27] Speaker 00:
Now, I believe he was aware that there was a repayment obligation based upon his communication in the late 1990s.

[00:13:33] Speaker 00:
But it appears... I mean, at the time, aware.

[00:13:36] Speaker 00:
At the time, no.

[00:13:38] Speaker 00:
I do not believe that he had an understanding of the offset based upon his severance pay and that it would, as it were, commence anew in 1960.

[00:13:52] Speaker 00:
But again, that's not pertinent to the question that's before this Court.

[00:13:55] Speaker 00:
which is the interpretation of this regulation.

[00:13:58] Speaker 00:
Because in the request for revision, his allegation is that this regulation was not correctly applied.

[00:14:05] Speaker 00:
If it had been correctly applied, his benefits would not have been suspended.

[00:14:10] Speaker 02:
What is the relief you would seek here if you prevailed?

[00:14:14] Speaker 02:
Thirty-eight years have passed.

[00:14:16] Speaker 00:
From 1960 to the time that he went in, I believe in 1998,

[00:14:22] Speaker 00:
for his claim for increase.

[00:14:25] Speaker 02:
Yeah, but he didn't have a subsequent re-examination through that entire period.

[00:14:31] Speaker 02:
You're saying in the absence of an examination he should just get, be able to recoup?

[00:14:37] Speaker 00:
He would be entitled to the reinstatement, I believe, of his 10% rating from 1960 to 1998.

[00:14:42] Speaker 02:
Let me hear from the government while we still have a couple minutes.

[00:14:48] Speaker 02:
Thank you.

[00:15:00] Speaker 01:
Thank you, Honors.

[00:15:01] Speaker 01:
I may pick up on your Honor's last question about his awareness.

[00:15:07] Speaker 01:
If you look at page 50 of the Joint Appendix, second paragraph, the last sentence, this is... One of the paragraphs that begins CFR 3.953?

[00:15:22] Speaker 01:
No, it starts in August of 1957.

[00:15:25] Speaker 01:
Okay, first full paragraph.

[00:15:27] Speaker 01:
First full, yes.

[00:15:28] Speaker 01:
Okay.

[00:15:28] Speaker 01:
Last sentence, and this is from Mr. Lamb.

[00:15:30] Speaker 01:
I would not expect to hear anything from the VA until June of 1960 when I would have expected to get the first check.

[00:15:38] Speaker 04:
Right, but that is actually preceded by even if I knew about the award.

[00:15:43] Speaker 04:
And I think just before that he says, actually in 1952, I never even knew that I was given a 10% award.

[00:15:53] Speaker 04:
I think he was reasonably careful in here to say,

[00:15:57] Speaker 04:
I had no idea that there was money being credited to any accounts here.

[00:16:02] Speaker 01:
Right.

[00:16:03] Speaker 01:
I mean, he originally, in this letter, claimed that he had never even been aware that he was awarded benefits.

[00:16:09] Speaker 01:
He said that the mail wasn't delivered to a different address at that time.

[00:16:13] Speaker 01:
He subsequently changed that, and there's a finding that, indeed, he did receive the notice that he had been awarded benefits.

[00:16:23] Speaker 01:
Oh, is that...

[00:16:26] Speaker 01:
the most recent board decision.

[00:16:29] Speaker 01:
But he is clear that he, in fact, that first prior sentence is incorrect, that he didn't seem to know.

[00:16:37] Speaker 04:
Can I ask you, I guess, more on the legal question?

[00:16:41] Speaker 04:
Sure.

[00:16:41] Speaker 04:
For clear and unmistakable error, we don't get to, or rather, the board doesn't get to take and rely on new explanations not apparent in the record at the time for why he didn't get noted.

[00:16:57] Speaker 04:
If that's the case, what could constitute an adequate reason based on the record at the time in any case of returned notice?

[00:17:10] Speaker 01:
Yeah, it would have to be something indicating in the record that the VA had the wrong address would be an adequate basis or that the VA simply never sent the notice would be another example of something that on a clear and unmistakable error

[00:17:26] Speaker 01:
review could be an adequate reason.

[00:17:30] Speaker 03:
Today, the VA would send it to an alternative address, right?

[00:17:34] Speaker 01:
And he did argue if they could locate an additional address, but there were, this was an argument that was raised before the board and the board had found that the Department of Veterans Affairs had made an adequate attempt to find an alternative address.

[00:17:52] Speaker 03:
But... Meaning his parents' address?

[00:17:55] Speaker 03:
Didn't they have his parents' address?

[00:17:57] Speaker 01:
No, I think it was his prior address.

[00:17:59] Speaker 01:
He'd moved around quite a bit.

[00:18:01] Speaker 01:
I don't believe they had his parents' address, but I'm not sure about that.

[00:18:05] Speaker 01:
I think where he had argued that they should have done was contact the trailer court.

[00:18:10] Speaker 01:
This was a trailer park, and I think his argument had been they should contact the trailer court.

[00:18:15] Speaker 01:
But I believe that the finding was that wouldn't have helped him.

[00:18:21] Speaker 02:
Just as a follow up to Judge Toronto's question, so your answer is the only thing that could constitute DOE would be, in other words, fault, a demonstration of fault by the Veterans Administration.

[00:18:34] Speaker 01:
As I stand here, I can't think of how there would be something in the record.

[00:18:37] Speaker 02:
No, no, no.

[00:18:39] Speaker 02:
But that seems to be, I think Mr. Carpenter,

[00:18:43] Speaker 02:
would leap on that because his argument in this case is that there's a legal question and the legal question is the error in the application of the interpretation of this regulation to focus on fault of the government.

[00:18:58] Speaker 02:
So why is he wrong in that regard given that you've kind of agreed that the question to be asked and implied in the regulation is fault on the part of the government?

[00:19:08] Speaker 01:
No, I don't think that's correct.

[00:19:10] Speaker 01:
I think those two examples involve fault, but there could be other things such as

[00:19:13] Speaker 01:
there could be evidence that the veteran was so sick at the time that he couldn't receive the mail, which is an example that the board relies on.

[00:19:21] Speaker 01:
The board never said that support was the only way.

[00:19:25] Speaker 01:
It explicitly recognized that regardless of support, there were other circumstances that could constitute adequate reasons, such as if the veteran was sick or taking care of a hospitalized family member.

[00:19:37] Speaker 04:
And I suppose there's a difference between what could constitute an adequate reason

[00:19:43] Speaker 04:
on one hand, and what kind of adequate reason would be apparent on the record at the time, and the latter might effectively equate to fault without the foreword.

[00:19:54] Speaker 01:
Correct.

[00:19:54] Speaker 01:
I mean, we're dealing with the Q claim.

[00:19:56] Speaker 01:
I would suspect in the typical case, the veteran would notice when their benefits were cut off and would promptly come to the DBA and start the process.

[00:20:07] Speaker 01:
So we wouldn't have the 35-year gap where we have to rely on Q to go back.

[00:20:13] Speaker 01:
So that's where I think this, you know, where the limitation comes from is the cue, not from the adequate reason requirement.

[00:20:23] Speaker 01:
And I believe Mr. Carpenter today proposed the legal position that as long as the veteran does not receive a notice, that in and of itself is an adequate reason.

[00:20:37] Speaker 01:
However, in the initial LAM decision,

[00:20:40] Speaker 01:
this court expressly rejected that proposition, stating, quote, whether that reason is adequate, however, depends upon the reason Lamb did not receive the notice, end quote.

[00:20:51] Speaker 01:
And that's from page 1383.

[00:20:54] Speaker 01:
So this court's already recognized that you have to look at the ultimate reason as to why the veteran did not receive the notice of the physical examination, in that it rejected a per se rule.

[00:21:07] Speaker 01:
And if I could go back to one other point regarding the Veterans Court's decision, which Mr. Carpenter pointed you to pages three and four of the Joint Appendix, where the Veterans Court cites to the Board's decision.

[00:21:29] Speaker 01:
However, in the next paragraph, the Veterans Court goes on to indicate

[00:21:35] Speaker 01:
And the additional reason that there was no adequate reason was that the veteran had fared to keep the Department of Veterans Affairs informed about his whereabouts.

[00:21:47] Speaker 01:
And that's in the first full paragraph on page four.

[00:21:52] Speaker 01:
So it did not adopt a rule that fought automatically is an inadequate reason.

[00:22:01] Speaker 01:
It looked at the circumstances of this case.

[00:22:04] Speaker 01:
And that raises a factual issue that this Court does not assess jurisdiction to review.

[00:22:08] Speaker 04:
Can I just ask you one, where we started?

[00:22:12] Speaker 04:
Did the Board, with respect to whether he received notice of the October 1952 award, conclude anything more than it would presume that he did because it wasn't, the notice was not returned as undeliverable?

[00:22:35] Speaker 04:
contrary to his assertion, like in the letter at JA-50, we now have evidence that he actually

[00:22:58] Speaker 01:
That was what I was thinking of, Your Honor.

[00:23:02] Speaker 04:
Okay.

[00:23:02] Speaker 04:
It's several times.

[00:23:03] Speaker 04:
I mean, it recites the contention that he didn't get it and then says that this was not returned as undeliverable at JA 152 and the next one wasn't returned as undeliverable.

[00:23:14] Speaker 01:
Yes.

[00:23:14] Speaker 01:
And I believe that in an earlier, that's what I was thinking of, but I do believe that there wasn't, this was back on remand twice and I believe there was an earlier board decision in the joint appendix.

[00:23:26] Speaker 01:
where they had addressed this issue, because early on he had argued that he hadn't received the decision of award.

[00:23:33] Speaker 01:
But subsequently, I believe there's a holding, but I can't find it.

[00:23:41] Speaker 01:
If you're honest, I have no further questions.

[00:23:44] Speaker 01:
For these reasons and the reasons set forth in our brief, respectfully request this court dismiss this appeal, or in the alternative, affirm the decision of the Veterans Court.

[00:23:51] Speaker 01:
Thank you.

[00:24:00] Speaker 00:
The government reiterates the position taken by both the Board and affirmed by the lower court that unless the VA had the wrong address, that the only adequate reason would be fault by the VA.

[00:24:14] Speaker 04:
That's not... I'm sorry.

[00:24:16] Speaker 04:
Can I just ask, this is I guess the question that I asked the government's attorney

[00:24:22] Speaker 04:
Maybe that is true as a practical matter in a CUE case because the record is so constrained.

[00:24:31] Speaker 04:
Maybe it is, maybe it isn't.

[00:24:33] Speaker 04:
But even if it is, that doesn't seem to me to mean that it has interpreted the regulation to require fault since information might be supplied after the fact to explain what the record on

[00:24:51] Speaker 04:
at the time suggests is not an adequate reason, and then it turns out it is, but the agency would have had no way of knowing that at the time.

[00:25:03] Speaker 04:
The no way of knowing is critical to the CUE inquiry, but not part of other aspects of the application of the regulation.

[00:25:13] Speaker 00:
Well, Your Honor, I do not believe it is critical if the regulation is interpreted to not impute

[00:25:21] Speaker 00:
or require the showing of fault by the VA because there was either an adequate reason, which has never been addressed on its face for his having not received notice.

[00:25:35] Speaker 00:
In other words, if he didn't get notice, was it an adequate reason for him to therefore have not appeared for the regulation?

[00:25:43] Speaker 00:
And what's critical in this case is that we're dealing with a regulation that imposes a

[00:25:49] Speaker 00:
critical sanction on the veteran, the termination of his benefits.

[00:25:54] Speaker 00:
Those benefits were in this case terminated for a period of more than 40 years.

[00:26:00] Speaker 00:
And as a consequence, we're asking the veteran to have some foreknowledge of what he was supposed to have done when he had no idea that he was supposed to report.

[00:26:15] Speaker 00:
This regulation says that there is an adequate reason provision that will eliminate the sanction.

[00:26:24] Speaker 00:
The exploration of the adequacy of that regulation, excuse me, of that reason was never allowed in this case because of the requirement that was imposed by both the Board and the Veterans Court that there be a showing of fault by the VA, or as suggested in the alternative,

[00:26:44] Speaker 00:
that the veteran had failed to keep them informed.

[00:26:49] Speaker 00:
There's no requirement in this regulation that the veteran keep them informed in order to avoid the sanction in this case.

[00:26:59] Speaker 03:
Do you agree with the government that despite his initial claim that he didn't receive the notice of the initial award when he was living at his prior address, that he later backed off of that and conceded that he received it?

[00:27:12] Speaker 00:
And that only has to do with whether or not he had been granted the 10 percent and that 10 percent had been suspended until the recovery of the separation pay.

[00:27:23] Speaker 03:
So he knew he was in the system and that at the end of that five-year period would be entitled to the receipt of benefits.

[00:27:33] Speaker 00:
I'm not willing to go that far, Your Honor.

[00:27:36] Speaker 00:
I think he was aware that there had been an award.

[00:27:40] Speaker 00:
I do not believe he understood the nature of the offset for the separation pay and that there was a specific time period in which those would end.

[00:27:55] Speaker 03:
Oh, that's what he actually says in his letter, the same letter where he initially claimed he didn't get it.

[00:28:02] Speaker 03:
He said, even if I had, that would just have informed me that at the end of

[00:28:06] Speaker 03:
five years, I would be entitled to benefit.

[00:28:09] Speaker 03:
He conceded that that's what it would have informed him of.

[00:28:12] Speaker 03:
And then later he said, and I got it.

[00:28:15] Speaker 00:
Well, except your honor, frankly, that's in 1998.

[00:28:17] Speaker 00:
That's when he was discovering what his rights were that he did not understand in 1957.

[00:28:24] Speaker 00:
In other words, in 1957, the VA took an action

[00:28:28] Speaker 00:
to terminate his benefits for which he got no notice of.

[00:28:33] Speaker 00:
He never was told that his benefits were suspended.

[00:28:38] Speaker 00:
What you're talking about is his actual knowledge that the benefits were being offset and that they would be restored at some point in time in the future.

[00:28:48] Speaker 00:
What Mr. Lamb was confronted with is that he didn't understand that his benefits had been terminated.

[00:28:58] Speaker 00:
In 1998, he puts in writing that he now understands what had been going on and that there was a period in time in which he should have been receiving benefits and didn't.

[00:29:11] Speaker 00:
And that's what he is trying to accomplish in this litigation is to get those benefits restored.

[00:29:17] Speaker 00:
This regulation, as interpreted, imposes a clear and vital sanction on the veteran that ought to require actual knowledge.

[00:29:28] Speaker 00:
and that the lack of actual knowledge should be an adequate reason for not reporting.

[00:29:34] Speaker 00:
Unless there's further questions.

[00:29:35] Speaker 00:
Thank you.

[00:29:36] Speaker 02:
Thank you very much.