[00:00:51] Speaker 01:
Next case is the National Organization of Veterans Advocates for Assistant Secretary of Veterans Affairs 2015-7-024.

[00:01:00] Speaker 01:
Mr. Carpenter.

[00:01:05] Speaker 04:
May it please the court, Kenneth Carpenter, appearing on behalf of the National Organization of Veterans Advocates.

[00:01:16] Speaker 04:
This is a rulemaking challenge

[00:01:18] Speaker 04:
concerning the implementation of the statutory provisions of 38 U.S.C.

[00:01:23] Speaker 04:
5121A, which involves the process for the substitution of an appellant in a pending matter before the VA.

[00:01:36] Speaker 04:
Congress created this statute with the clear and unambiguous intent of eliminating what Congress perceived as unnecessary administrative hurdles

[00:01:48] Speaker 04:
that existed under the prior process.

[00:01:50] Speaker 01:
But Mr. Carpenter, what in the regulation is inconsistent with the statute?

[00:01:59] Speaker 04:
There are two provisions.

[00:02:01] Speaker 04:
The first appears at 38 CFR 3.1010C and D.

[00:02:09] Speaker 04:
and the second appears at 38 CFR 20.1302 and 20.900A2.

[00:02:18] Speaker 04:
In the administrative, excuse me, in the Section 3 provisions, they deal with the requirement that all individuals seeking to be substituted must be qualified by the VA.

[00:02:35] Speaker 04:
We have no problem with

[00:02:37] Speaker 04:
dependents being qualified.

[00:02:39] Speaker 04:
It is the relationship between the qualification for persons who have already been qualified as dependents by the VA and, in particular, the provisions at Part 20, which require, first, that the VA dismiss an appeal and, second, provides that the matter will be returned by the Board by the administrative agency.

[00:03:08] Speaker 04:
The administrative hurdles are that these individuals have already been qualified.

[00:03:14] Speaker 04:
There are, in fact, two classes of dependents under the VA system, dependents who are recognized as dependents.

[00:03:21] Speaker 01:
But the statute doesn't say except for those previously qualified.

[00:03:24] Speaker 04:
No, it does not, Your Honor.

[00:03:26] Speaker 04:
The question here is... There's no inconsistency.

[00:03:29] Speaker 04:
With respect, there is, Your Honor.

[00:03:31] Speaker 04:
The inconsistency is that because there is a recognized class,

[00:03:36] Speaker 04:
by both statute and procedure in which the VA recognizes dependents prior to the veteran's death.

[00:03:44] Speaker 04:
In those circumstances, with veterans who are receiving compensation or pension, for compensation purposes, they have to be rated at least 30 percent for their service-connected disability or disabilities, and then their dependents are qualified by the VA to enhance the amount of compensation.

[00:04:05] Speaker 04:
As a consequence,

[00:04:06] Speaker 04:
this class of dependence is already known to the VA.

[00:04:10] Speaker 04:
Under the regulatory scheme that has been created by these new regulations, the VA imposes... But dependency changes from time to time, doesn't it?

[00:04:20] Speaker 01:
Or can it not?

[00:04:21] Speaker 04:
Certainly, Your Honor.

[00:04:22] Speaker 04:
And the only thing that's relevant is dependency at time of death.

[00:04:26] Speaker 04:
And those dependents are identified within the system because those dependents will be

[00:04:33] Speaker 04:
the veteran will have been receiving additional compensation in the form of service-connected compensation or pension because of those identified dependents.

[00:04:46] Speaker 04:
Those dependents are not going to vary at time of death.

[00:04:50] Speaker 04:
They're going to be exactly the same individual

[00:04:53] Speaker 04:
And the VA knows that within its system because the VA is paying additional amounts of compensation.

[00:05:01] Speaker 02:
They're paying, but it's always possible that there has been some event, such as a remarriage or whatever, that has changed the dependency status of the previous dependents, but hasn't been reported to the VA.

[00:05:18] Speaker 04:
But with respect, Your Honor, the lack of reporting to the VA is not relevant to whether or not that dependent relationship existed at time of death.

[00:05:27] Speaker 02:
No, no.

[00:05:28] Speaker 02:
But it may be that, for example, take the following case.

[00:05:31] Speaker 02:
And I'm not sure exactly how this would work out in practice.

[00:05:34] Speaker 02:
But just generically, someone is getting a compensation that includes compensation for dependence.

[00:05:45] Speaker 02:
A year before that person's death, the previous dependent is now no longer a dependent, but the recipient of the check doesn't report the change in status to the VA, so that at the time of death, the VA, according to its records, shows that person's a dependent, but in fact, that person isn't.

[00:06:06] Speaker 02:
And if the VA looks again, the VA sees that, aha, this person is not a dependent at the time of death.

[00:06:12] Speaker 02:
Isn't that at least a plausible scenario?

[00:06:14] Speaker 04:
No, it is not, Your Honor.

[00:06:17] Speaker 02:
We have.

[00:06:18] Speaker 04:
Well, go ahead.

[00:06:20] Speaker 04:
Because the ineligibility of a dependent isn't the criteria.

[00:06:27] Speaker 04:
It is the eligibility of the dependent.

[00:06:30] Speaker 02:
Well, if the eligibility of the dependent turns into ineligibility prior to the death of the veteran but isn't reported, wouldn't that create this scenario?

[00:06:39] Speaker 02:
No, Your Honor.

[00:06:40] Speaker 04:
That person would be ineligible to be substituted.

[00:06:43] Speaker 02:
Well, that's right, but the VA wouldn't know that.

[00:06:46] Speaker 02:
In other words, if the VA is presuming that the veteran has reported and would have reported in 100% of the cases a change in dependency status, and therefore they don't ask at the time of the veteran's death, that person continues to receive the benefits that would have been paid to the veteran, right?

[00:07:06] Speaker 04:
Well, in the first place, these benefits are all paid to the veteran.

[00:07:11] Speaker 04:
They are not paid to the dependent.

[00:07:14] Speaker 02:
In Social Security, dependents... Well, after the dependent, after the veteran dies, the continuing benefits go to the, or the accrued benefit, I guess, goes to the survivor, right?

[00:07:26] Speaker 04:
Well, not necessarily, Your Honor.

[00:07:27] Speaker 02:
But that's why the survivor's in the case, to try to get some benefit from the... There are two different categories of

[00:07:36] Speaker 04:
There are benefits that are derived based upon an appeal that is pending for the veteran, which is regular or normally referred to as accrued benefits.

[00:07:49] Speaker 04:
But their dependency benefits are independent benefits based upon either a service-connected cause of death or based upon a veteran being totally disabled.

[00:08:00] Speaker 04:
Those benefits are separately applied for by the dependent with a separate application form.

[00:08:06] Speaker 04:
This process allows the qualifying dependent to step into the shoes of the appellant.

[00:08:15] Speaker 04:
And the question here is the delay in the process by trying to, by delaying the determination of a fact that has already been determined.

[00:08:28] Speaker 04:
To take your example, for instance,

[00:08:30] Speaker 04:
In what NOVA is proposing is the invalidity of this regulation.

[00:08:35] Speaker 04:
If the regulation recognized this distinction, and in their form they said, identify whether you have been previously recognized by the VA as a dependent.

[00:08:49] Speaker 04:
The VA simply needs to check that off.

[00:08:52] Speaker 04:
They either are or they aren't.

[00:08:53] Speaker 04:
There is no disruption, particularly in terms of appeals pending before the board.

[00:08:58] Speaker 04:
There is no need for the...

[00:08:59] Speaker 00:
I'm sorry to interrupt you, but this question is relevant to what you're talking about.

[00:09:05] Speaker 00:
In your blue brief at page 13, footnote 3, you say that when a child reaches majority or there is death or divorce or remarriage, dependents are removed or added.

[00:09:17] Speaker 00:
What I want to know is how is this information updated and is there ever a delay in updating that information?

[00:09:24] Speaker 04:
There is not supposed to be a delay.

[00:09:27] Speaker 04:
in my experience, occasions when there are in fact delays.

[00:09:31] Speaker 00:
And why are there delays?

[00:09:32] Speaker 04:
Because the veteran does not make that report.

[00:09:36] Speaker 04:
But you see, Your Honor, what we're talking about here is whether or not the individual would be qualified to be substituted.

[00:09:43] Speaker 04:
If that child becomes an adult, they are disqualified from dependent status.

[00:09:50] Speaker 00:
Could that be why the statute specifically says that any person who wants to be substituted has to provide evidence?

[00:09:59] Speaker 04:
Well, I don't believe so, Your Honor, because the evidence of dependency is the trigger.

[00:10:05] Speaker 04:
You either have the status, you are either a qualified dependent, and there are three classes of qualified dependents, surviving spouses, dependent parents, and minor or dependent children.

[00:10:17] Speaker 04:
And the reason that I make the distinction is that you can be a disabled adult child if you become incapacitated prior to the age of 18.

[00:10:25] Speaker 04:
So there's a kind of gray area there for children.

[00:10:29] Speaker 04:
But that status is definitive.

[00:10:34] Speaker 04:
There isn't any ambiguity about that status.

[00:10:37] Speaker 04:
And that status either exists at death or it doesn't.

[00:10:41] Speaker 04:
And the best information for that, for existing dependent determinations, is whether or not the VA, in the month that the veteran died, was or wasn't paying additional compensation

[00:10:54] Speaker 00:
for those dependent.

[00:10:56] Speaker 00:
What if that information hasn't been updated and therefore it's incorrect at the time of the veteran's death?

[00:11:04] Speaker 04:
If it was not updated and that information were incorrect, that incorrectness would only go to a lack of eligibility, not for eligibility, and therefore

[00:11:21] Speaker 04:
Because they lack eligibility, they would no longer be entitled to be substituted.

[00:11:27] Speaker 04:
What we're talking about here is the process of substitution and the delay in that process of substitution.

[00:11:34] Speaker 00:
How would the board ever find out that there was a lack of eligibility if they didn't have the evidence before them?

[00:11:40] Speaker 00:
I mean, all they had was the old evidence, the old record that had been submitted.

[00:11:45] Speaker 04:
Because that record is correct.

[00:11:48] Speaker 04:
unless and until the VA determines otherwise.

[00:11:52] Speaker 04:
In other words, what I'm saying is we as advocates are always placed at a disadvantage with the VA because we're told that the VA has the presumption of regularity.

[00:12:03] Speaker 04:
The presumption of regularity in this case is that if the VA record says that the veteran has dependence of a wife and three children, then the veteran has a wife and three children.

[00:12:15] Speaker 04:
until that presumption is rebutted.

[00:12:19] Speaker 04:
Once that presumption is rebutted, those individuals are disqualified and they would be disqualified from being substituted.

[00:12:27] Speaker 04:
That is the barrier that the VA wishes to erect here to justify a delay for the substitution of individuals that they already know that they already have documented are qualified dependents.

[00:12:42] Speaker 00:
In your brief, you say that the Secretary took six years to promulgate these regulations.

[00:12:48] Speaker 00:
They did.

[00:12:48] Speaker 00:
What was the practice during those six years with respect to this?

[00:12:52] Speaker 04:
For the first several years, it was no practice.

[00:12:56] Speaker 04:
No substitutions were being permitted.

[00:12:58] Speaker 04:
Eventually, the VA drafted what they call a fast letter, which was a VA explanation as to how they would do this.

[00:13:05] Speaker 04:
And many of the things that are in the regulations were in that fast letter.

[00:13:10] Speaker 04:
When they promulgated the regulations, they took some out.

[00:13:12] Speaker 04:
They added some other ones.

[00:13:14] Speaker 04:
But Congress directed them to implement regulations.

[00:13:21] Speaker 04:
NOVA brought a cause of action in this court to compel them to do that.

[00:13:30] Speaker 01:
Mr. Coppiter, I assume you wish to say your rebuttal time.

[00:13:32] Speaker 01:
Thank you.

[00:13:34] Speaker 01:
Ms.

[00:13:34] Speaker 01:
Hosford.

[00:13:44] Speaker 03:
May I please the Court?

[00:13:46] Speaker 03:
The regulations promulgated by VA to implement Section 5121A are both consistent with the statute and are not arbitrary and capricious.

[00:13:58] Speaker 03:
They are eminently reasonable regulations.

[00:14:00] Speaker 03:
With respect to the requirement that dependents seeking to substitute submit evidence, the Court has

[00:14:10] Speaker 03:
already covered this in detail, but I'll just reiterate that as the VA noted in its final rule, the evidence before the VA is not always accurate and up to date.

[00:14:25] Speaker 03:
Oftentimes it's possible that a child, for instance, who would be entitled to dependency benefits because he or she is a college student is no longer a college student, but the claimant or the veteran never updated the record before his death.

[00:14:37] Speaker 01:
Is it your view that

[00:14:39] Speaker 01:
even aside from these hypothetical problems or inconsistencies, the regulation tracks the statute and is therefore valid?

[00:14:49] Speaker 03:
Yes, the statute says that the person seeking to substitute shall present evidence of eligibility within one year after the veteran's death.

[00:15:00] Speaker 03:
However, even assuming there was even a hint of ambiguity in the statute, the regulation is itself reasonable.

[00:15:07] Speaker 03:
The petitioner's counsel said something about, well, we have to presume the regularity of the VA's finding of dependency.

[00:15:14] Speaker 03:
I think he has that backwards.

[00:15:16] Speaker 03:
What we're talking about is information that's submitted by the veteran, not the agency's actions or procedures.

[00:15:26] Speaker 03:
Here, if the veteran did not update the information yearly and there is no annual reporting requirement on the veteran once dependency status is

[00:15:35] Speaker 03:
is determined for purposes of his getting additional compensation when his rating is over 30 percent, then it's entirely possible that the veteran never updated the information.

[00:15:48] Speaker 03:
In fact, VA often has to handle overpayment claims for that very reason because the veteran didn't.

[00:15:54] Speaker 03:
There's no presumption of regularity that applies to the veteran's obligation to submit evidence in support of the dependency of his wife or his children.

[00:16:05] Speaker 02:
Is there a process when the veteran, sorry, the decedent survivors make an application?

[00:16:20] Speaker 02:
What weight is given to the assertion, let's say, of the spouse who may have lost the wedding certificate and so forth from 50 years ago?

[00:16:32] Speaker 02:
What weight is given and what procedure is followed in a case like that to the spouse's statement that we've been married for 50 years?

[00:16:42] Speaker 03:
Well, the application really requires the spouse to state we've been... An affidavit.

[00:16:47] Speaker 03:
All right.

[00:16:47] Speaker 03:
She... Right.

[00:16:48] Speaker 03:
She needs to be stated.

[00:16:48] Speaker 03:
She already presents an affidavit.

[00:16:50] Speaker 03:
What is often the case is

[00:16:52] Speaker 03:
that the certificate of death that must be filed when the veteran dies lists the wife as the spouse.

[00:17:01] Speaker 03:
So oftentimes, that's all that's needed.

[00:17:04] Speaker 02:
Is there any kind of regulatory provision that speaks to what degree of evidence?

[00:17:10] Speaker 02:
I mean, I could imagine, for example, that there could be a demand for evidence that very few people would be able to come up with and prove that you are the

[00:17:22] Speaker 02:
surviving son of these two people that are on my birth certificate, it's not so easy to do.

[00:17:27] Speaker 02:
Is there a regulatory provision that addresses this question of degree of proof?

[00:17:33] Speaker 03:
I don't think that there's a floor of information that must be submitted.

[00:17:39] Speaker 03:
What happens is that the person files the request to substitute, the agency looks at it.

[00:17:44] Speaker 03:
If the agency decides that further information is needed or that

[00:17:48] Speaker 03:
that there are questions that need to be answered, they will go back to the putative substitute.

[00:17:55] Speaker 03:
However, there's no requirement that if the substitute is unable to find the evidence or otherwise has trouble with it, that they won't still be able to substitute in the absence of conflicting evidence.

[00:18:08] Speaker 03:
So this is not a gotcha type situation.

[00:18:11] Speaker 03:
It's just that the agency wants to be in a position consistent with the statute

[00:18:16] Speaker 03:
of knowing that the person who has filed the request to substitute is eligible under, I think it's 3.1 thousand A1 through 5.

[00:18:28] Speaker 03:
So it's not like, my understanding is that the person will not be deemed ineligible to substitute if the evidence is no longer available unless there are competing claims.

[00:18:40] Speaker 03:
I mean, you could have a former wife, a present wife, and that sort of thing.

[00:18:44] Speaker 03:
That isn't embodied in any regulatory provision that you have?

[00:18:47] Speaker 03:
Not to my knowledge.

[00:18:48] Speaker 02:
But that's just the practice, as you understand it.

[00:18:50] Speaker 03:
Yes.

[00:18:51] Speaker 03:
All right.

[00:18:51] Speaker 03:
Yes.

[00:18:52] Speaker 03:
And I think the practice, if you look at JA1 of the appendix, you'll see that the form is very simple.

[00:19:00] Speaker 03:
And the person seeking to substitute merely needs to state their relationship to the decedent.

[00:19:06] Speaker 03:
And then it's up to the agency to get back to them if they feel further evidence is required.

[00:19:11] Speaker 03:
that procedure has been in place since the time that the proposed rule was put in place.

[00:19:19] Speaker 00:
Once a substitution takes place and a case goes back to the board, what does it mean that the case is put in the same position in line or same place that it was before?

[00:19:29] Speaker 00:
Does the substitute party have to resubmit the papers that have been submitted?

[00:19:36] Speaker 00:
How does that work?

[00:19:36] Speaker 03:
They do not.

[00:19:37] Speaker 03:
What happens is when the

[00:19:40] Speaker 03:
The board receives notice that the decedent or that the veteran has died.

[00:19:44] Speaker 03:
The whole file is sent back to the agency of original jurisdiction where the substitution issue can be resolved.

[00:19:51] Speaker 03:
Then the entire file is sent back to the board.

[00:19:55] Speaker 03:
And wherever the board was in processing that file before it was sent for the substitution decision is where it is when it's sent back.

[00:20:07] Speaker 03:
Depending on what

[00:20:08] Speaker 03:
place you are in the process, the veteran is in the process, you'll get that same exact place.

[00:20:12] Speaker 03:
So if it was just like a month after filing and the board was merely just gathering the record together and trying to figure out what's the next step, that would be where you are.

[00:20:22] Speaker 03:
If you were two years into the process and the board was thinking about setting a hearing, then you'd get that place back.

[00:20:29] Speaker 03:
If the board was very close to decision, then you'd be at that point as well.

[00:20:37] Speaker 03:
Petitioners' Council didn't spend any time on this, but I will just briefly touch on the issue of whether or not the board could itself make the determination as to whether a dependent is an eligible substitute.

[00:20:53] Speaker 03:
If the board were to make that decision, it would deprive that dependent of their right under 38 USC 7104 to appeal that decision to the board.

[00:21:03] Speaker 03:
So the board can't review its own decisions.

[00:21:06] Speaker 03:
But if the inquiry is sent back to the agency of original jurisdiction, then if the substitute is unhappy with the decision, they will have their one review on appeal to the board.

[00:21:18] Speaker 03:
In their brief, petitioners make reference to a very narrow exception to that rule.

[00:21:26] Speaker 03:
that applies when there's an issue that's already on appeal to the board and the claimant waives their right to one review on appeal for the sole purpose of putting additional evidence on an issue that's already been resolved by the agency of original jurisdiction.

[00:21:39] Speaker 03:
Here, the agency of original jurisdiction has never decided whether this dependent is an eligible substitute.

[00:21:46] Speaker 03:
Therefore, the process that the agency has put into place where all cases are dismissed and sent back is a reasonable one and it's consistent with the statute and also protects

[00:21:56] Speaker 03:
the substitutes to a certain extent.

[00:22:00] Speaker 02:
The issue came up as to the relationship between Chevron and Gardner.

[00:22:11] Speaker 02:
We've taken a couple of runs at that issue.

[00:22:16] Speaker 02:
I'm not sure we have any global view as to that question.

[00:22:22] Speaker 02:
What is the government's position

[00:22:25] Speaker 02:
with respect to what role Chevron plays, or maybe the way to look at it is what role Gardner plays in the Chevron world.

[00:22:33] Speaker 03:
I think the government's position is consistent with the position this court has taken in Guerra and Sursley and some of those other cases that pro veteran canon of construction comes into play only when all of the Chevron analysis has already been exhausted.

[00:22:52] Speaker 02:
But doesn't that mean ultimately that

[00:22:55] Speaker 02:
at least in the context of regulatory, deciding whether regulation is consistent with the statute, that Gardner really has no role at all.

[00:23:06] Speaker 02:
It seems to me that the whole purpose of Chevron is to, in effect, take the place of ambiguity as to the meaning of a statute by substituting the agency's judgment if it's reasonable for

[00:23:24] Speaker 02:
the court's effort to resolve the ambiguity.

[00:23:27] Speaker 02:
If that, if substituting the agency's judgment is the right way to go, then that would seem to me to mean that you will, if you apply Chevron loyally, you will always come to the conclusion that there is a proper construction, it's a construction reasonably given by the agency and therefore Gardner would have no role.

[00:23:43] Speaker 02:
Is that right?

[00:23:43] Speaker 03:
That is not right.

[00:23:45] Speaker 02:
Okay, where's the role of Gardner in?

[00:23:47] Speaker 03:
There will be cases where when applying Chevron-Deferrin step one, step two is really what we're talking about here, where you come down to a case where it's a very close case, where it could be said that the VA's position was reasonable, but that also the veteran has offered an equally reasonable interpretation, and although

[00:24:13] Speaker 03:
Deference obviously is, oh, the agency, it's such a close case that the case would tip in favor of that.

[00:24:20] Speaker 02:
The closeness of the case would be with respect to the question of the unreasonableness of the agency's construction.

[00:24:28] Speaker 02:
So if I came to the conclusion that I think this agency's construction might be

[00:24:35] Speaker 02:
reasonable, but it's so far out toward the edge that it might also be unreasonable, then in that situation and in that situation alone, I would apply Gardner.

[00:24:44] Speaker 02:
That would be one situation.

[00:24:46] Speaker 02:
But presumably, if I didn't have Gardner, I would have to choose one or the other.

[00:24:50] Speaker 02:
That is true.

[00:24:51] Speaker 02:
Because these decisions are determined.

[00:24:54] Speaker 02:
You have to choose one or the other.

[00:24:55] Speaker 02:
But since I'm choosing one or the other, because even though I think they're close, one is a little better than the other, it's hard for me to see where there really is equipoise.

[00:25:03] Speaker 02:
What you're saying is, in a hypothetical situation, there might be equipoise.

[00:25:08] Speaker 02:
But other than that, Gardner really has no role in this setting, right?

[00:25:11] Speaker 03:
We would not take the position that Gardner has no role.

[00:25:16] Speaker 02:
It was a pretty small role.

[00:25:17] Speaker 02:
Would you agree with that?

[00:25:18] Speaker 03:
The court has applied it.

[00:25:20] Speaker 03:
In the way the court has applied it, it has a smaller role.

[00:25:22] Speaker 03:
OK.

[00:25:23] Speaker 01:
Thank you.

[00:25:25] Speaker 01:
Thank you, Ms.

[00:25:26] Speaker 01:
Foster.

[00:25:27] Speaker 01:
Mr. Coppenter has a little time to move up.

[00:25:34] Speaker 04:
Judge Bryson, to answer your question relative to the degree of evidence, I direct the Court's attention to the application form, which the government has conceded has not been changed since the adoption of this regulation, which is at J.A.

[00:25:47] Speaker 04:
1 and 2.

[00:25:49] Speaker 04:
If you look at J.A.

[00:25:50] Speaker 04:
2 under the instructions, there is no reference to the submission of any evidence.

[00:25:57] Speaker 04:
So all you do is complete this form and you don't submit evidence.

[00:26:01] Speaker 04:
Yet there is a regulation that says

[00:26:03] Speaker 04:
We need to do this in order for you to submit evidence to us.

[00:26:07] Speaker 02:
Well, but presumably the form is itself evidence, right?

[00:26:10] Speaker 02:
Because the form is a representation by the parties submitting the form.

[00:26:13] Speaker 04:
And there is simply a declaration as to the relationship of the deceased.

[00:26:18] Speaker 02:
But that's evidence, right?

[00:26:19] Speaker 04:
Well, Your Honor, is it evidence that is necessary to delay the process?

[00:26:27] Speaker 04:
We're talking about a process here in which an appeal that is pending before what is supposed to be an independent

[00:26:34] Speaker 04:
de novo review of an appeal of the decision of the secretary is delayed, it is in fact dismissed until such time as there is a determination.

[00:26:45] Speaker 04:
If the only evidence is a declaration that this person is the spouse, why can that declaration not be made directly to the board?

[00:26:54] Speaker 04:
And the board simply pull up the veteran's file, it's all electronic now,

[00:26:59] Speaker 04:
and they are either recognized as the spouse or they're not recognized as the spouse.

[00:27:03] Speaker 02:
Let's take something like the child was in college but may have dropped out of college.

[00:27:11] Speaker 02:
Presumably the form would require the child to indicate whether they're eligible or not, right?

[00:27:20] Speaker 04:
All it says is relationship.

[00:27:22] Speaker 04:
All that would be required is I am the son or daughter of the veteran.

[00:27:25] Speaker 00:
It actually says, I am eligible to receive accrued benefits due to the deceased claimant, and I am eligible to substitute under Section 5121A.

[00:27:34] Speaker 04:
And that is a representation that they qualify

[00:27:38] Speaker 04:
as opposed to are not qualified under the statute.

[00:27:41] Speaker 02:
But presumably there would be some people that would say, oops, I can't sign this because I'm out of college.

[00:27:46] Speaker 02:
I happen to know because I've studied the matter in law school or whatever.

[00:27:50] Speaker 02:
I happen to know that I'm not qualified under the statute.

[00:27:54] Speaker 02:
But that would be a case in which the failure to file the form would correctly pick up someone who's not qualified to be

[00:28:03] Speaker 02:
receiving benefits who would otherwise be getting benefits if you just looked at the fact that they're previously received benefits, right?

[00:28:12] Speaker 02:
No.

[00:28:12] Speaker 02:
You understand what I'm saying, right?

[00:28:13] Speaker 02:
No, I do not.

[00:28:15] Speaker 04:
Because you're suggesting a process that does not exist.

[00:28:18] Speaker 04:
There is no inquiry made as you're suggesting about the status of a non-qualifying adult child.

[00:28:26] Speaker 02:
Well, I'm positing a situation in which I

[00:28:30] Speaker 02:
Having knowledge that if I drop out of college, I'm not going to get benefits.

[00:28:35] Speaker 02:
I know that.

[00:28:36] Speaker 02:
I drop out of college, and then this form comes to me after my father dies, and it says to me, are you qualified to receive benefits?

[00:28:46] Speaker 02:
Now, if I sign the form, I'm not going to sign the form because I know I'm not qualified to receive the benefits, right?

[00:28:53] Speaker 04:
No, no.

[00:28:54] Speaker 04:
See, I think that's an important distinction here.

[00:28:57] Speaker 04:
is it's not a question of being qualified to receive benefits.

[00:29:00] Speaker 04:
It's a qualified to be substituted.

[00:29:03] Speaker 02:
I understand.

[00:29:03] Speaker 02:
I misspoke when I said receive benefits.

[00:29:06] Speaker 02:
To be substituted to get the benefits, the accrued benefits of the veteran.

[00:29:09] Speaker 02:
I understand.

[00:29:10] Speaker 02:
OK.

[00:29:11] Speaker 02:
But I'm still

[00:29:14] Speaker 02:
This is a filter, right?

[00:29:16] Speaker 02:
My refusal to file this form means I don't get substituted and that's right.

[00:29:21] Speaker 02:
I shouldn't be substituted because I'm no longer qualified to be substituted.

[00:29:28] Speaker 02:
Whereas, if the VA simply looked at the file, they wouldn't know that I dropped out of college and then I could be substituted.

[00:29:37] Speaker 04:
With all due respect, Your Honor, that hypothetical is premised upon protecting the VA against some

[00:29:43] Speaker 04:
hypothetical threat to an applicant making an application for benefits to which they're not entitled.

[00:29:49] Speaker 04:
What we're talking about in substitution is the right of a qualified survivor to step into the shoes of the veteran and continue the appeal without delay.

[00:30:01] Speaker 04:
It is the delay that is attendant to taking an appeal that's pending before the board under the directions of these regulations, dismissing that appeal, and having a new administrative process

[00:30:13] Speaker 04:
undertaken before the agency, before that appeal can continue.

[00:30:17] Speaker 04:
When on their application, all they ask for is a declaration that they have a relationship to the deceased.

[00:30:24] Speaker 04:
And there is a statement, as Judge Spall referred to, that indicates that they are eligible to be substituted.

[00:30:32] Speaker 04:
If they are later determined not to be eligible to be substituted, that process of having been substituted is nullified.

[00:30:41] Speaker 04:
What we're talking about here are that class of individuals who have already been qualified by the VA.

[00:30:47] Speaker 04:
And that is predominantly surviving spouses.

[00:30:51] Speaker 01:
It is not.

[00:30:51] Speaker 01:
Do you have a final thought, Mr. Papander?

[00:30:56] Speaker 04:
Just one comment on the Gardner versus Chevron distinction.

[00:31:00] Speaker 04:
Clearly, it is the petitioner's view that Gardner has a role and should have a different role when we're talking about a rule-making challenge

[00:31:10] Speaker 04:
than for an existing regulation that has already passed the rulemaking threshold.

[00:31:18] Speaker 04:
And therefore, Gardner should apply in the first instance.

[00:31:20] Speaker 01:
Thank you.

[00:31:21] Speaker 01:
Thank you, Mr. Carpenter.

[00:31:22] Speaker 01:
We'll take the case under advisement.