[00:00:00] Speaker 01:
We have one case on the calendar this morning.

[00:00:04] Speaker 01:
Service Women's Action Network versus the Secretary of Veterans Affairs.

[00:00:08] Speaker 01:
2014-71-15, Ms.

[00:00:13] Speaker 01:
Nogueira.

[00:00:17] Speaker 01:
Please proceed.

[00:00:33] Speaker 03:
May it please the court?

[00:00:35] Speaker 03:
As you know, this case involves the VA's denial of a rulemaking petition that seeks to reform the adjudication of disability compensation claims for rape survivors in the military.

[00:00:46] Speaker 03:
The VA's denial is arbitrary and capricious for one simple reason.

[00:00:51] Speaker 03:
The VA's letter provides conclusory assertion, not reason, for denying the petition.

[00:00:57] Speaker 06:
Let me ask you a question.

[00:00:59] Speaker 06:
I don't find any mention.

[00:01:00] Speaker 06:
I couldn't have missed it.

[00:01:02] Speaker 06:
of the Department of Defense's separate policy, which they've instituted and extensively revised over the last three, four years, the sexual assault prevention and response policy.

[00:01:17] Speaker 06:
It's both service, DOD-wide and then service-wide within the services having their own.

[00:01:24] Speaker 06:
Has the VA examined and taken into account any of that?

[00:01:28] Speaker 03:
I'm not familiar with the VA's review

[00:01:32] Speaker 03:
SAFC policy, Your Honor.

[00:01:37] Speaker 03:
The question here is whether the denial and the reasons given in the denial.

[00:01:43] Speaker 06:
I understand.

[00:01:45] Speaker 06:
But if the question is also time, place, manner kinds of things about comparing combat to military service, then it seems to me that if the DOD is articulating problems and articulating specific required solutions to them,

[00:02:02] Speaker 06:
that it indicates a background of what the service is like.

[00:02:08] Speaker 03:
Yes, Your Honor.

[00:02:09] Speaker 06:
It would follow that... Did you not raise it at all within the petition or elsewhere?

[00:02:15] Speaker 03:
No, Your Honor.

[00:02:18] Speaker 03:
Our petition is focused on the regulations under 3.304 and the evidence standards that the VA has articulated in

[00:02:32] Speaker 03:
at five.

[00:02:34] Speaker 06:
Well, you're not satisfying my question, but I'll ask the government as well.

[00:02:39] Speaker 03:
I would be happy to follow up with supplemental briefing on that question.

[00:02:42] Speaker 06:
Well, do you understand what I'm saying?

[00:02:44] Speaker 06:
That maybe I'm not clearly articulating myself.

[00:02:48] Speaker 06:
If the VA is denying, actually affirmatively articulate that military service in general is unlike

[00:03:01] Speaker 06:
specific combat service, because geez, once we know that you were in a combat zone at a specific time, then we can presume certain things about your service.

[00:03:15] Speaker 06:
It seems to me that they're saying, obversely, well, if you were just in the service, then you weren't exposed necessarily to certain conditions, and the DOD

[00:03:28] Speaker 06:
is saying in its separate policy, yes, these conditions exist service-wide, and you have to do something about them.

[00:03:37] Speaker 06:
You didn't raise any of that?

[00:03:40] Speaker 03:
No, Your Honor.

[00:03:43] Speaker 03:
Specifics on?

[00:03:45] Speaker 00:
Well, I think your petition points out, and I think the VA doesn't dispute, that there's

[00:03:50] Speaker 00:
a widespread problem with MST in the service.

[00:03:54] Speaker 00:
Is that correct?

[00:03:55] Speaker 04:
Yes, Your Honor.

[00:03:56] Speaker 00:
It may not go to the details of this new policy and the like, but as far as I can tell, nobody's disputing the widespread existence of a problem with MST in the service.

[00:04:08] Speaker 03:
Yes, Your Honor.

[00:04:09] Speaker 03:
I don't believe that's in dispute.

[00:04:13] Speaker 03:
What is in dispute is... Can I ask you this?

[00:04:16] Speaker 00:
Because this is what I find the most difficult.

[00:04:20] Speaker 00:
in terms of the letter denying the petition.

[00:04:23] Speaker 00:
I mean, the secretary's brief certainly elaborates much further on its reasoning.

[00:04:30] Speaker 00:
But it is not clear to me from the letter that VA understands that the circumstances language of that statute could extend to full service as opposed to specific instances of service.

[00:04:46] Speaker 00:
Do you have any views on that?

[00:04:48] Speaker 00:
Do you think that they

[00:04:49] Speaker 00:
Because I asked, because it seems to me that if the secretary mistakenly understands circumstance retire some specific slice of service as opposed to all service, then that seems to be a legal error in the reading of that statute.

[00:05:04] Speaker 00:
That seems to require a remand.

[00:05:07] Speaker 04:
Yes, Your Honor.

[00:05:08] Speaker 00:
And that's the problem is in their brief, they certainly disavow that reading and say that this

[00:05:15] Speaker 00:
statute could apply, but they chose in their discretion not to use it for various reasons.

[00:05:21] Speaker 03:
No, Your Honor.

[00:05:23] Speaker 03:
In the denial letter, the VA appears to argue that it does not have the statutory authority to promulgate a presumption similar to the fear-based PTSD regulation.

[00:05:33] Speaker 03:
It misunderstands its authority under Section 1154A.

[00:05:36] Speaker 00:
Well, can you tell me where it says it doesn't have the authority?

[00:05:39] Speaker 00:
This is what I find puzzling.

[00:05:40] Speaker 00:
You say it's very clear that they think they don't have the authority.

[00:05:43] Speaker 00:
I don't find it that clear that way.

[00:05:46] Speaker 04:
Of course.

[00:05:47] Speaker 00:
I don't find it that clear on their side either that they think from the denial that they have the authority but they exercise their discretion to deny.

[00:05:55] Speaker 03:
At the bottom of the third page, Your Honor, the VA discusses how under Section 1154A it must consider places, types, and circumstances and then follows that by saying the VA, excuse me,

[00:06:07] Speaker 03:
military sexual trauma is not indisputably associated with places, types, and circumstances.

[00:06:11] Speaker 03:
The suggestion in that paragraph is that the request to initiate a rulemaking would fly in the face of Section 1154A.

[00:06:23] Speaker 03:
That is not the case.

[00:06:24] Speaker 03:
Plainly, the text of the statute is permissive.

[00:06:26] Speaker 03:
It's a general grant of authority.

[00:06:28] Speaker 03:
It's not a limiting proviso.

[00:06:30] Speaker 03:
It only directs the VA to give, in each case, due consideration to the places, types, and circumstances.

[00:06:35] Speaker 03:
The legislative history of that statute only backs up the idea that the purpose of the statute is to ensure individual adjudication for veterans who lack records is in no way limiting the VA's authority to promulgate a presumption or to begin a rulemaking process.

[00:06:54] Speaker 03:
And the legal precedent within this circuit also supports that theory.

[00:06:59] Speaker 00:
But in their brief, they certainly

[00:07:01] Speaker 00:
at least state on the record that they understand that they do have the authority to do this kind of thing.

[00:07:10] Speaker 00:
They've just declined to do so.

[00:07:14] Speaker 03:
Yes, Your Honor.

[00:07:16] Speaker 03:
Again, the question here, though, is whether the VA's denial letter was reasoned.

[00:07:20] Speaker 03:
The denial letter clearly misunderstands the authority granted to it under Section 1154A.

[00:07:31] Speaker 03:
The denial letter also misunderstands the fear-based PTSD regulation.

[00:07:38] Speaker 03:
As the VA's own letter admits, that regulation is, in fact, similar to the proposed regulation in the petition for rulemaking.

[00:07:50] Speaker 01:
The agency alleges... You've argued that the VA letter shows discriminatory animus.

[00:07:59] Speaker 01:
Animus is an antagonism showing of ill will.

[00:08:02] Speaker 01:
Where is the discriminatory animus?

[00:08:06] Speaker 01:
Whether one could argue with the letter or not, I don't see the animus in there.

[00:08:14] Speaker 03:
Yes, Your Honor.

[00:08:15] Speaker 03:
Under Village of Arlington, departures from the normal procedure evince discrimination.

[00:08:21] Speaker 03:
under the equal protection clause, but the court does not need to reach that issue in this case.

[00:08:25] Speaker 06:
If we don't reach equal protection, can you still prevail or can we still roll in your favor or not?

[00:08:31] Speaker 03:
Yes, Your Honor.

[00:08:32] Speaker 03:
In this case, the VA denial letter has misunderstood facts in law and ignored important factors.

[00:08:40] Speaker 06:
Let's be candid.

[00:08:41] Speaker 06:
I think your equal protection argument is by far weaker.

[00:08:45] Speaker 06:
Are you going to stand and argue for it now or rest on your?

[00:08:50] Speaker 03:
Yes, Your Honor.

[00:08:52] Speaker 03:
The equal protection argument is there for a reason.

[00:08:57] Speaker 03:
Absolutely, the regulation is discriminatory and violates the Constitution.

[00:09:06] Speaker 03:
But to the extent that the court is reticent to get into constitutional matters, it's clear that the denial letter violates the APA's

[00:09:19] Speaker 03:
requirement that the agency offer reasoned explanation.

[00:09:24] Speaker 06:
Well, okay.

[00:09:25] Speaker 06:
Since you say you want to rest as well on the equal protection argument, you'd agree that the classification is not based on gender, right?

[00:09:35] Speaker 06:
Could be either gender.

[00:09:37] Speaker 03:
Not facially, Your Honor.

[00:09:40] Speaker 06:
Okay.

[00:09:41] Speaker 06:
So discriminatory purpose has to be demonstrated in this circumstance.

[00:09:45] Speaker 06:
Isn't that right?

[00:09:46] Speaker 06:
Yes, Your Honor.

[00:09:48] Speaker 06:
What's the discriminatory purpose of the rule?

[00:09:57] Speaker 03:
The purpose of the rule is to treat MST survivors differently than other veterans who have the exact same medical condition.

[00:10:08] Speaker 06:
Being aware of the consequences isn't enough to establish a discriminatory purpose, correct?

[00:10:17] Speaker 03:
Yes, Your Honor, but they're not aware of the different treatment.

[00:10:23] Speaker 03:
It is, in fact, their purpose to effectuate that different treatment.

[00:10:29] Speaker 03:
I see I'm running out of my allotted time.

[00:10:32] Speaker 03:
If I could quickly just mention the stakes at issue.

[00:10:36] Speaker 03:
The VA's denial falls on the shoulder of veterans who have survived rape and sexual assault during their service, only to be told that they cannot access the same benefits for the exact same medical condition

[00:10:47] Speaker 03:
In the face of all this, the VA still provides no reasoned explanation for its denial, and therefore the court should therefore vacate and remand back to the agency.

[00:10:57] Speaker 03:
Thank you very much.

[00:10:58] Speaker 01:
Thank you, Ms.

[00:10:59] Speaker 01:
Rivera.

[00:11:00] Speaker 01:
Ms.

[00:11:00] Speaker 01:
Kidd Miller.

[00:11:09] Speaker 05:
Good morning, and may it please the court?

[00:11:11] Speaker 05:
This court recognized since 2003 decision in Nova, a decision that neither petitioners nor Miki recognized.

[00:11:17] Speaker 06:
Ms.

[00:11:18] Speaker 06:
Miller, I have a bunch of questions, so let's go into it, okay?

[00:11:23] Speaker 06:
The petitioners assert in their petition that MST-related PTSD claimants experienced substantial delays in reaching a final determination.

[00:11:41] Speaker 06:
In 2011, appeals process took an average of 1,123 days from the time the veteran filed her or his notice of disagreement to disposition by the BVA.

[00:11:59] Speaker 06:
A remand from the BVA added an additional 427 days to the process before the veteran resolved her claim.

[00:12:07] Speaker 06:
What's the average time for combat-related PTSD?

[00:12:10] Speaker 05:
I don't know what the equivalent time period is for combat or for other claims.

[00:12:18] Speaker 05:
Of course, as this Court knows, fully developing and adjudicating many VA claims can take a period of years.

[00:12:26] Speaker 06:
I asked you for the average.

[00:12:27] Speaker 06:
Did you know that you don't know the average time for combat PTSD?

[00:12:31] Speaker 05:
I do not.

[00:12:32] Speaker 06:
Do you acknowledge there's a difference between the two?

[00:12:34] Speaker 05:
I do not because I don't know what the numbers are.

[00:12:40] Speaker 05:
it would be understandable if combat claims can be processed more quickly because of the typical availability of information regarding a veteran's combat with the enemy that is found in service records as opposed to these types of claims where VA acknowledges the information that is needed to corroborate the stressor is typically not going to be found in service records.

[00:13:07] Speaker 06:
I have lots of questions.

[00:13:07] Speaker 06:
I don't want to use that for your time to not get answered.

[00:13:10] Speaker 06:
In your red brief, you say that 7 and 8, starting in 2005, VA has engaged in an effort to improve the adjudication of MST-related claims beyond promulgation of 3.304 F5 by issuing guidance and instituting substantial number of training programs and so on.

[00:13:32] Speaker 06:
These efforts are working and continue today.

[00:13:36] Speaker 06:
By working, do you mean improving from a particular level or do you claim that victims of MST now obtain completely fair treatment from the VA?

[00:13:46] Speaker 05:
By working, we refer to a number of different measures of improvement.

[00:13:50] Speaker 05:
Among them, an improvement from a 75% accuracy rate for adjudication of these claims in 2011 to 86% in 2013, which is explained at page 116 of the record.

[00:14:05] Speaker 05:
is on par with the average accuracy rate for adjudication of all claims across the VA system.

[00:14:12] Speaker 06:
It also refers to... If that's true, then there's research from the American Civil Liberties Union and the Service Women's Action Network Report entitled Battle for Benefits.

[00:14:30] Speaker 06:
And that indicates that the St.

[00:14:32] Speaker 06:
Paul Regional Office, for example,

[00:14:35] Speaker 06:
granted 25.8% of MST-related PTSD claims during 2012 fiscal year.

[00:14:41] Speaker 06:
And during that same time, the LA regional office granted 88.5% of MST-related claims.

[00:14:50] Speaker 06:
How do you explain the large inconsistency in grant rates?

[00:14:54] Speaker 06:
And would you agree that it's due in part, at least, to the high degree of leeway that MST adjudicators have in deciding those PTSD claims?

[00:15:04] Speaker 05:
Well, I am not sure that I can explain with respect to individual ROs, but what I can tell you is that this particular report, these exact statistics, were before the Secretary when making the decision here whether to continue with training efforts that are narrowing the gap between men and women, between MST claims and other PTSD claims, the decision whether to continue with that training that is working or whether to effectively eliminate any requirement for corroborating evidence.

[00:15:32] Speaker 05:
VA as part of its decision again had this information before it and explained in its decision letter the types of training that is providing to regional offices to help ensure greater... Does Minnesota get the same type of training as California?

[00:15:49] Speaker 05:
Pardon me?

[00:15:49] Speaker 06:
Does Minnesota get the same type of training as California?

[00:15:52] Speaker 05:
Yes, I presume so.

[00:15:53] Speaker 05:
It's nationwide training effort.

[00:15:55] Speaker 06:
What explains the distinction, 60% distinction?

[00:15:59] Speaker 05:
Well, I think that there's a lot of different things that could explain the distinction.

[00:16:04] Speaker 05:
First, I want to note that variation alone doesn't necessarily mean inaccuracy.

[00:16:09] Speaker 05:
There could be a lot of differences, reasonable and realistic differences for variations between regional offices.

[00:16:16] Speaker 05:
This extent, this degree of variation,

[00:16:19] Speaker 05:
did cause concern for VA.

[00:16:21] Speaker 05:
And VA was aware of this issue prior to the petitioner's rulemaking.

[00:16:25] Speaker 05:
And that is, in part, what led it to initiate these various training programs that are nationwide.

[00:16:31] Speaker 06:
When did those training programs go into effect?

[00:16:34] Speaker 05:
Most of them went into place around 2011.

[00:16:37] Speaker 05:
And then there were some newer ones that came along in the years following.

[00:16:41] Speaker 05:
The largest bulk of the training came from, began around 2011.

[00:16:47] Speaker 06:
And this was fiscal 2012.

[00:16:49] Speaker 06:
Have those numbers narrowed between, say, Minnesota and California?

[00:16:55] Speaker 05:
I don't know about those two specific regional offices.

[00:16:58] Speaker 05:
Some of the training efforts that VA is undertaking are, for example, assigning all military sexual trauma PTSD claims to what it calls its special operations lane of adjudication so that now the most experienced, most

[00:17:16] Speaker 05:
knowledgeable adjudicators are handling the military sexual trauma claims.

[00:17:21] Speaker 06:
Let me shift the focus then.

[00:17:24] Speaker 06:
In your red brief at 11, you say, although there's no reason to expect that grant rates for MST-related claims will or should be the same as the overall grant rate for PTSD claims, VA training efforts closed it to within six points.

[00:17:44] Speaker 06:
My question is, in looking at this, is why shouldn't the MST rates be higher?

[00:17:50] Speaker 06:
At least in cases of sexual assault, wouldn't they all, at least, for all intents and purposes, always be severe psychological trauma as opposed to combat in which it's not always severe psychological trauma.

[00:18:10] Speaker 06:
Some people think combat is fun.

[00:18:13] Speaker 05:
Your Honor, your question presumes that the claims are being denied because of lack of a nexus between, did this sexual assault cause PTSD?

[00:18:25] Speaker 05:
But of course, the claims are denied for a wide variety of reasons.

[00:18:29] Speaker 05:
There are claims that are denied because the individual doesn't have sufficient evidence of having PTSD, even if they can substantiate an in-service

[00:18:40] Speaker 05:
sexual assault.

[00:18:41] Speaker 05:
Other claims are denied because people never show up for their examination that they're ordered to go to with the VA doctor.

[00:18:48] Speaker 05:
So we don't have statistics at this point in the process, which again, the focus on training and likewise the focus on keeping better statistics and record keeping on these claims started around 2010, 2011.

[00:19:05] Speaker 05:
And I don't know that we have them available down to the level of being able to explain why all of that variation exists.

[00:19:12] Speaker 05:
Variation is apparent.

[00:19:13] Speaker 06:
Hang on.

[00:19:15] Speaker 06:
I have too much to let you go too long.

[00:19:18] Speaker 06:
In your red brief at 15, you say, their proposed rule would distinguish MSG-related claims from all other PTSD claims, including those filed by veterans who feared hostile military or terrorist activity, those who were engaged in combat, and those who were prisoners of war.

[00:19:35] Speaker 06:
How would the proposal distinguish MST-related claims from all other PTSD claims?

[00:19:42] Speaker 05:
It would make MST-related claims the only claim where the claimant is not required to show, meet any kind of evidentiary threshold for proving the oppressor.

[00:19:57] Speaker 00:
So I think this is where it relates to the questions I was asking your friend.

[00:20:02] Speaker 00:
And I understand your point here.

[00:20:05] Speaker 00:
If it's established that MST is prevalent throughout the circumstances, wouldn't that statute allow VA to make that determination and do precisely that?

[00:20:18] Speaker 00:
Say, the circumstances of MST are prevalent throughout, and so we're not going to require corroborating evidence.

[00:20:27] Speaker 00:
We're going to allow lay testimony to suffice as a stressor.

[00:20:31] Speaker 00:
It's the same question I asked you.

[00:20:35] Speaker 00:
One, do you think VA could do that within the authority of the statute?

[00:20:39] Speaker 00:
And two, do you think that the Secretary understood that at the time of the denial?

[00:20:43] Speaker 00:
Because it's not clear to me from that letter that the Secretary did.

[00:20:49] Speaker 05:
I do not think that the Secretary could implement the regulation proposed by the petitioners precisely as it was proposed by them.

[00:20:57] Speaker 00:
But no, that's not what I'm asking.

[00:20:59] Speaker 00:
So hypothetically, let's say,

[00:21:01] Speaker 00:
And I think these facts are undisputed anyway, but you get really, really good studies that say, particularly women in military service are subject to MST at substantially higher rates than the general population.

[00:21:18] Speaker 00:
This is where presumptions come from for VA for everything.

[00:21:20] Speaker 00:
You know this, PTSD, Agent Orange, all these kind of things.

[00:21:24] Speaker 00:
But when they do those studies, they don't find it specific to a certain type of combat-related service or on a ship or on a sub.

[00:21:31] Speaker 00:
It's consistent throughout.

[00:21:34] Speaker 00:
And so looking at that, the secretary says, it is so prevalent, and it is so much higher than the prevalence in the general public.

[00:21:45] Speaker 00:
And the evidence is so hard to come by.

[00:21:47] Speaker 00:
We're going to establish a presumption.

[00:21:50] Speaker 00:
And it's not really even a presumption.

[00:21:53] Speaker 00:
We will allow lay testimony alone, the person's own testimony, to suffice as a stressor.

[00:22:01] Speaker 00:
Is that within VA's legal authority?

[00:22:03] Speaker 05:
Yes, VA could do that.

[00:22:04] Speaker 05:
And as Your Honor pointed out, it would not be technically a presumption to be a relaxed evidentiary standard.

[00:22:09] Speaker 05:
But VA here did not act arbitrary and capricious by failing to do that, to essentially assume or presume.

[00:22:18] Speaker 00:
So I understand your brief more fully articulates that rationale.

[00:22:23] Speaker 00:
Do you think their letter shows that reasoning?

[00:22:27] Speaker 00:
I mean, I'm looking, you can look at the same place we just looked at on pages three and four of the letter, and it's very close as to whether they think they can do that or they think that the same circumstances is equivalent with every instance of military services beyond the statute.

[00:22:45] Speaker 05:
Well, I think you have to read, this is three and four of the letters, six and seven of the record.

[00:22:50] Speaker 05:
in the full context here.

[00:22:52] Speaker 05:
So the paragraph begins, this is the last paragraph on page six, it's responding specifically to the rule that the petitioners proposed.

[00:23:01] Speaker 05:
And explaining that that rule does not, because that rule does not contain any kind of time, places, and circumstances requirement, that that is part of the reason, well that was the reason VA was denying it.

[00:23:13] Speaker 05:
And VA makes the point that, and VA and petitioners are in agreement here, that sexual assault is not

[00:23:21] Speaker 05:
necessarily associated with any particular time, place, a submarine, a base camp, it can happen anywhere.

[00:23:28] Speaker 05:
And that's inherently the challenge here and the one with

[00:23:34] Speaker 05:
about which petitioners and the VA fundamentally disagree about how you deal with that.

[00:23:39] Speaker 05:
Fundamentally, the VA system requires proof of claim.

[00:23:43] Speaker 05:
This court held in NOVA that the evidentiary burden in this exact regulation is consistent with the time, places, and circumstances requirement.

[00:23:52] Speaker 05:
It's not arbitrary and capricious.

[00:23:55] Speaker 05:
And so VA has decided to deal with this challenge of the fact that sexual assault can happen.

[00:24:03] Speaker 05:
at virtually any time and any place by enacting this very relaxed rule.

[00:24:09] Speaker 05:
Could it enact some sort of what we're loosely referring to as a presumption?

[00:24:15] Speaker 05:
Yes, but it's not arbitrary.

[00:24:17] Speaker 06:
Doesn't the combat-related person, somebody says, I served in this place at this time in this unit, and you say, OK, that's enough.

[00:24:26] Speaker 06:
But you don't say that's enough.

[00:24:28] Speaker 06:
They have to demonstrate that they suffer from PTSD, for example.

[00:24:32] Speaker 06:
That is correct, isn't it?

[00:24:34] Speaker 04:
That's right.

[00:24:34] Speaker 06:
And that the person with MST has to suffer, has to demonstrate that they suffer from PTSD under any circumstances, isn't that right?

[00:24:43] Speaker 06:
And that establishment of that, of those factors, startle reaction, insomnia, all those things that go with PTSD are established by independent examination.

[00:25:02] Speaker 06:
Isn't that correct?

[00:25:03] Speaker 05:
Or an examination through VA?

[00:25:05] Speaker 06:
Yeah, that's what I mean.

[00:25:07] Speaker 06:
It's not just the person saying it.

[00:25:08] Speaker 05:
That's right.

[00:25:09] Speaker 06:
And the examiner has the ability to say, oh, you don't have a startle reaction, for example, that sort of thing.

[00:25:17] Speaker 06:
Isn't that true?

[00:25:18] Speaker 06:
So it is put to truth testing.

[00:25:20] Speaker 05:
Well, these are the questions asking about several different elements of the claim.

[00:25:26] Speaker 04:
It is, yes.

[00:25:26] Speaker 05:
And the fundamental distinction between these kinds of claims, the proof of the in-service occurrence of a stressor, the fundamental difference between these kinds of claims and the other kinds of claims, is this very point that we've been discussing, that they're not tied to any particular time.

[00:25:42] Speaker 06:
And so... Sure, but look, has the military changed that much?

[00:25:45] Speaker 06:
I mean, a basic trainee still doesn't have an expectation of privacy, do they?

[00:25:52] Speaker 06:
I don't... Okay, well, let's put it this way.

[00:25:55] Speaker 06:
If a soldier

[00:25:56] Speaker 06:
believes that he's being sexually harassed on the job, he can't go in and say, I quit, can he?

[00:26:05] Speaker 05:
Not to my knowledge.

[00:26:06] Speaker 05:
I'm not.

[00:26:07] Speaker 06:
Well, without being sent to portion of Naval prison.

[00:26:10] Speaker 01:
Are we dealing with soldiers here or veterans?

[00:26:17] Speaker 05:
We're dealing with veterans.

[00:26:18] Speaker 05:
The benefits are not awarded because someone has been sexually assaulted.

[00:26:23] Speaker 05:
They're awarded because someone is suffering from PTSD.

[00:26:26] Speaker 05:
that was caused by an in-service sexual assault.

[00:26:31] Speaker 05:
The petitioners agree and cite both in their petition and endorse the VA statistic that one in five women veterans report having been sexually assaulted and one out of 100 men.

[00:26:43] Speaker 05:
The VA has declined to presume that everyone who serves in the military was sexually assaulted and instead promulgated this very relaxed

[00:26:54] Speaker 05:
and broad-ranging way to present corroboration of a claim.

[00:26:59] Speaker 05:
It can be a post-service medical opinion.

[00:27:01] Speaker 01:
Are corroboration standards any different for women than for men?

[00:27:04] Speaker 05:
No, Your Honor.

[00:27:05] Speaker 05:
They're exactly the same.

[00:27:06] Speaker 05:
It's a facially neutral regulation, and there's been no evidence of any kind of purposeful discrimination here.

[00:27:15] Speaker 05:
So it passes the constitutional concerns that petitioners raise.

[00:27:19] Speaker 01:
Do you have any summary, final summary thoughts?

[00:27:22] Speaker 05:
No, I see that I'm past my time.

[00:27:23] Speaker 05:
I would just ask the court to hold that VA's decision to continue with its training that is working rather than revise the regulations that this court previously upheld is not arbitrary and capricious.

[00:27:35] Speaker 06:
I have some more questions.

[00:27:39] Speaker 06:
Am I correct?

[00:27:39] Speaker 06:
You're familiar with AC vision, Saki?

[00:27:42] Speaker 06:
Yes.

[00:27:44] Speaker 06:
You don't dispute the holding in AC.

[00:27:46] Speaker 06:
I think the VA is correct.

[00:27:49] Speaker 06:
is taking a position consistent with that.

[00:27:53] Speaker 05:
That lay testimony can corroborate, yes, yes, absolutely.

[00:27:56] Speaker 06:
The VA does not dispute, I'm quoting, that in the great majority of cases such incidents are not reported to military authorities and therefore such records do not exist.

[00:28:08] Speaker 05:
Exactly.

[00:28:09] Speaker 05:
That's the whole purpose behind this regulation is that recognition.

[00:28:13] Speaker 06:
One last thing and that is

[00:28:17] Speaker 06:
ACLU and their amicus talks about the subjective nature of assessments and invites adjudicators to assess claims according to personal biases.

[00:28:30] Speaker 06:
That was sort of that Minnesota versus California question I asked.

[00:28:35] Speaker 06:
Do you agree that the nature in which MST-related PTSD claims are adjudicated are subject to a high degree of subjectivity?

[00:28:47] Speaker 05:
The adjudication of these claims absolutely should not rest on bias of adjudicators, and that's why VA has review processes and checks in place to accuracy reviews for claims.

[00:29:05] Speaker 05:
But these kinds of claims, like many other claims throughout the system, inherently involve some discretion on the part of the adjudicator.

[00:29:14] Speaker 05:
just as adjudicators have to weigh credibility in all sorts of other kinds of claims.

[00:29:19] Speaker 05:
They weigh competing evidence and assign weight evidence, and both adjudicators and doctors have to assign ratings based on inherently subjective mental health criteria in many kinds of claims.

[00:29:35] Speaker 05:
GAO actually did a report a number of years ago on this exact

[00:29:39] Speaker 05:
inherent kind of variation and discretion in the VA system, encouraging VA to track its numbers and try to impose some restraints.

[00:29:52] Speaker 05:
But that's necessarily how the system works, and these kinds of claims are no different.

[00:30:10] Speaker 02:
May it please the court?

[00:30:11] Speaker 02:
I'd like to address a few points that were brought up just in the past argument.

[00:30:16] Speaker 02:
First, petitioners are not asking this court to implement the precise language of our rule, but rather remand it back to the agency, as the VA has clearly misunderstood its authority.

[00:30:26] Speaker 00:
Can I ask you this hypothetical?

[00:30:28] Speaker 00:
Let's presume that the VA understand all these problems, and they agree that there's a higher rate of MST in the military than out.

[00:30:39] Speaker 00:
and that they have the legal authority to enact this looser evidentiary requirement, if they want to.

[00:30:46] Speaker 00:
But they make the decision that the better way to do it is through what they said, through training, through various things to try to sensitize the adjudicators to the issue, rather than adopt what is, I'm sure you would admit, an over-inclusive presumption.

[00:31:03] Speaker 00:
Would that be arbitrary and capricious?

[00:31:06] Speaker 02:
Your Honor,

[00:31:07] Speaker 02:
petitioners believe that the letter itself was arbitrary and capricious, and that would be a fact.

[00:31:11] Speaker 00:
Well, that's why I'm asking you the hypothetical.

[00:31:13] Speaker 00:
I think we're dwelling a little too much on the precise words of the letter and not getting to the issue.

[00:31:19] Speaker 00:
I mean, there's two things here.

[00:31:21] Speaker 00:
I'm trying to get to your argument and whether you think it would be arbitrary and capricious to reject a position that you don't have to provide any corroborating evidence.

[00:31:35] Speaker 02:
The VA's position is that its training is working, and that can't be, because from 2011 to 2013, the grant rates actually declined from 55% to 49%.

[00:31:44] Speaker 02:
To the extent that petitioners believe that without a presumption... What's your authority for that?

[00:31:51] Speaker 02:
That is cited on page 31 of our opening brief and in our appendix, Your Honor.

[00:31:58] Speaker 02:
Petitioners believe that it is the discretion with all of the corroborating evidence that is required that creates this geographic lottery and inconsistent adjudication.

[00:32:07] Speaker 02:
And a presumption is exactly what is required to address this.

[00:32:10] Speaker 02:
And the VA does not disagree.

[00:32:12] Speaker 02:
The four other stressors that are correlated with causing PTSD have the presumption precisely because in the VA's direct language, they were difficult to prove and hard to prove claims.

[00:32:23] Speaker 02:
So it is inconceivable for the VA to explain that MST should be treated differently and require separate corroborating evidence when it is the reason they promulgated a fear-based PTSD presumption precisely because they couldn't point it to specific places, types, and circumstances.

[00:32:39] Speaker 02:
And Congress has mandated that these presumptions should be in the veteran's favor.

[00:32:45] Speaker 02:
Second, I'd like to address that we are not asking for a lower standard for MST survivors.

[00:32:51] Speaker 02:
We are asking for the exact same standard that veterans get when they apply for benefits for fear-based PTSD, combat PTSD, prisoner of war PTSD, and in-service personal assault.

[00:33:01] Speaker 02:
It does require a fact-finding before they get these benefits.

[00:33:05] Speaker 02:
It's a medical diagnosis.

[00:33:06] Speaker 02:
They go to a VA doctor and they receive the PTSD diagnosis.

[00:33:10] Speaker 02:
and the lay testimony of the veteran.

[00:33:12] Speaker 02:
This is not a heightened standard.

[00:33:14] Speaker 02:
This is not a special standard for MST survivors.

[00:33:17] Speaker 00:
Well, it is a little bit different standard on circumstances though, right?

[00:33:20] Speaker 00:
Because for a combat, the combat-related presumption, you know, they may not have to provide independent evidence that they were specifically in combat, but they have to go to service records or the like and show that the unit or the time or the place where they served was in combat.

[00:33:36] Speaker 02:
Correct, and petitioners agree with that rule.

[00:33:37] Speaker 02:
We do not want to read places, types, and circumstances out of it.

[00:33:41] Speaker 00:
But yours is different.

[00:33:43] Speaker 00:
I mean, yours would go to the entirety of service, which I think is permissible, but it is different, isn't it?

[00:33:51] Speaker 02:
No, I disagree.

[00:33:52] Speaker 02:
The combat presumption was promulgated because, for instance, they speak in their records of examples of which the service record may indicate that they were deployed in a specific area, but it does not have the exact dates

[00:34:04] Speaker 02:
a particular battle that occurred.

[00:34:08] Speaker 02:
And therefore, when a veteran comes back to receive their benefits, they are relying on the late testimony.

[00:34:13] Speaker 02:
Just as a veteran who was sexually assaulted, it's likely not going to stay in their service records that they reported because the DOD itself has acknowledged that 89% of veterans in the VA has acknowledged that they do not report this.

[00:34:25] Speaker 02:
But it will be in their record, for instance, that they were serving in Afghanistan at a specific time.

[00:34:31] Speaker 02:
So therefore, if the veteran says, this is where I was and this is what I deployed, that is all the places, types, and circumstances language requires and mandates.

[00:34:39] Speaker 06:
But you said you need a 31 of your blue brief for the declination from 55% to 49%.

[00:34:46] Speaker 06:
So I'm not finding it.

[00:34:48] Speaker 02:
It should be in our appendix.

[00:34:49] Speaker 02:
And we can.

[00:34:50] Speaker 06:
Yeah, I'd like to cite before we go off the bench.

[00:34:54] Speaker 02:
I will have that for you.

[00:35:02] Speaker 02:
Precisely because the VA's letter fails to address important factors such as the geographic disparity and gender disparity and misunderstand its authority under 1154A, we are asking for a remand back so that the agency can explain its denial.

[00:35:20] Speaker 02:
as my counsel has pointed out, cannot be overstated.

[00:35:24] Speaker 02:
This is the one benefit that falls mainly on the shoulders of women who have been fighting in our military.

[00:35:29] Speaker 02:
They have done the same service, fought the same wars, and are coming back and seeking the benefits that they deserve.

[00:35:35] Speaker 02:
They have the exact same medical diagnosis as their other service members with combat PTSD, fear-based PTSD, and there's no reason to believe that they should be treated any differently within an individual adjudicator's claim process.

[00:35:49] Speaker 06:
Let me just ask you one question.

[00:35:51] Speaker 06:
What I said to your opposing counsel, it would seem to me that military sexual trauma must result, you know, not recorded, but in examination, it must result in PTSD a much higher amount of the time than combat related.

[00:36:15] Speaker 06:
Are there statistics on that?

[00:36:16] Speaker 02:
We do have those statistics in our brief, Your Honor.

[00:36:19] Speaker 02:
In fact, MSD is the most highly correlated

[00:36:22] Speaker 02:
for PTSD than any other stressor.

[00:36:24] Speaker 02:
And we can get those numbers for you as well in our brief.

[00:36:28] Speaker 02:
And before I close, I would just like to address, you mentioned to my co-counsel the SAPRA report and we do... Briefly, Ms.

[00:36:36] Speaker 01:
Tuckman, because your time has expired.

[00:36:38] Speaker 02:
We do cite that on footnote 1113 and 30 to the VA's record that they did have the prevalence of sexual assault in the military before them as they were viewing the presumption.

[00:36:47] Speaker 02:
We recognize that it's a different agency, but those numbers were cited in the rule.

[00:36:51] Speaker 02:
Thank you.

[00:36:52] Speaker 01:
Are we still waiting for it?

[00:36:54] Speaker 06:
Yeah, I'm waiting for that sign.

[00:36:55] Speaker 06:
From 55% to 49% declination.

[00:36:59] Speaker 01:
You can send us a letter with that citation.

[00:37:02] Speaker 01:
Thank you.

[00:37:03] Speaker 01:
The case will be submitted.

[00:37:06] Speaker 01:
All rise.