[00:00:00] Speaker 01:
Now we've got a little bit of an unusual circumstance this morning because we're hearing three separate cases consolidated together with three different advocates.

[00:00:11] Speaker 01:
The cases are 15-7061, 15-7021, and 15-7025.

[00:00:19] Speaker 01:
Mr. Vellettini?

[00:00:24] Speaker 01:
Now, each of you, since you're arguing separately, might want to start off by telling us precisely what issues you're dealing with in terms of this appeal.

[00:00:34] Speaker 00:
Absolutely.

[00:00:34] Speaker 00:
Good morning.

[00:00:35] Speaker 00:
I may please the court.

[00:00:36] Speaker 00:
Francesco Valentini for Petitioners American Legion et al.

[00:00:39] Speaker 00:
in case number 15-7061.

[00:00:42] Speaker 00:
Our petition raises two issues.

[00:00:44] Speaker 00:
The first issue is the VA rules changes to the informal claim system at the claim initiation stage.

[00:00:53] Speaker 00:
The second issue is the redefinition by the VA of the scope of a claim that the VA will deem raised when he received an application.

[00:01:03] Speaker 00:
As the Supreme Court and this Court have long recognized, Congress intended the Veterans Benefit System to be as informal and not adversarial as possible.

[00:01:12] Speaker 00:
That informality is especially critical at the claim initiation stage, when the veteran is almost invariably unassisted by counsel and is, in fact, statutorily prohibited from paying for counsel.

[00:01:24] Speaker 01:
Do you want to tell us, just for purposes of understanding the background, what the prior system was and what the differences are in the regulation now that's been implemented?

[00:01:34] Speaker 00:
For over eight years, a pillar of the informal system that Congress have put in place and the VA has implemented

[00:01:41] Speaker 00:
has been the principle that a veteran will not be deprived of the full extent of his earned benefits just because the first submission requesting those benefits is made through a narrative submission as opposed to a standardized form.

[00:01:56] Speaker 00:
The veteran could submit an informal submission, a narrative submission, just a letter,

[00:02:01] Speaker 00:
and alert the VA that he was raising intended to seek benefits.

[00:02:06] Speaker 00:
And at that point, the process would begin.

[00:02:09] Speaker 00:
And so long as the veteran would perfect his claim within one year, the veteran would then be entitled to the effective date as of the date of the informal claim.

[00:02:20] Speaker 00:
The VA's regulations depart from that core principle that had been the law for eight years.

[00:02:26] Speaker 00:
And for that reason, they're contrary to statute.

[00:02:28] Speaker 02:
Can I ask you, suppose that

[00:02:31] Speaker 02:
just put aside for a minute an important argument that you make which is that that core principle essentially got codified in the statute by various forms of reenactment so that for purposes of this question assume that there's no statutory bar to the new intent to file form requirement.

[00:02:58] Speaker 02:
Why

[00:02:59] Speaker 02:
What is your argument for why that new requirement is unreasonable, arbitrary and capricious in APA form?

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

[00:03:09] Speaker 00:
Judge Toronto, as you mentioned, we have an important statutory argument, a contrary-to-law argument.

[00:03:14] Speaker 00:
But aside from that argument, I take your question to focus on the second part, so the Chevron Step 2 or Arbitrary and Capricious Review.

[00:03:21] Speaker 00:
The new rule is arbitrary and capricious because the VA has failed to draw a rational connection, and is required to do under State Farm Supreme Court precedent, between its asserted goal of administrative efficiency

[00:03:35] Speaker 00:
And the policy choice is selected to implement that goal, which is to require, not just make optional, but require standardized forms in order to establish an effective... The point of a standardized form is uniformity, is it not?

[00:03:50] Speaker 03:
That's the idea of standardization.

[00:03:52] Speaker 00:
No, absolutely.

[00:03:53] Speaker 03:
So how is that not a rational connection?

[00:03:56] Speaker 00:
We are not taking issue with the fact that the introduction and offering standard forms as an option is a rational decision and we in fact favor the dissemination and the encouragement of the use of... You're missing the point of my question.

[00:04:12] Speaker 03:
I'm saying as opposed to an option, standardization would require a mandatory

[00:04:20] Speaker 00:
But standardization cannot be achieved in this case.

[00:04:24] Speaker 00:
There's statutory constraints that prevent standardization from happening, because the VA has an independent statutory and also self-imposed regulatory duty.

[00:04:33] Speaker 03:
But we're on Judge Toronto's hypo.

[00:04:36] Speaker 03:
And you simply pass that over by saying, right, but.

[00:04:42] Speaker 03:
But if you just say that, then by saying right, you've conceded your entire hypothetical argument.

[00:04:49] Speaker 03:
and move back to the statutory, is that what you're doing?

[00:04:52] Speaker 00:
No, that's not, with respect, I don't think that's what I'm doing.

[00:04:56] Speaker 00:
We think that statutory standardization is a goal and is a legitimate goal for the VA, but there are limits on how much standardization is just possible within this system.

[00:05:07] Speaker 01:
But we're talking about, I'm sorry, go ahead.

[00:05:10] Speaker 00:
And those limits are imposed by 1501A, which requires that the VA still look at all the submissions that come in.

[00:05:17] Speaker 03:
But you're falling back to your statutory argument.

[00:05:21] Speaker 03:
Have you abandoned your argument under the hypothetical?

[00:05:26] Speaker 03:
That is a chevron argument.

[00:05:28] Speaker 00:
No.

[00:05:29] Speaker 00:
No, Your Honor, I've not abandoned that argument because... I mean, the government says...

[00:05:35] Speaker 02:
there is an efficiency gain, I think page 31 or 32 of its brief, from having a single form that clearly communicates, either filled out on the telephone or it's filled out online or filled out on paper, but a single form that eliminates work that would otherwise have to be done by the VA to figure out whether

[00:06:02] Speaker 02:
they had one of these starting forms, and why is that all by itself not sufficient to meet a quite low threshold for arbitrary and capriciousness?

[00:06:14] Speaker 00:
Precisely, because the premise of that argument is work that would otherwise have to be done by the VA, as you just said, but that work has to be done by the VA in any event under 1502.

[00:06:23] Speaker 02:
But previously, is it not right that when they got a handwritten letter

[00:06:30] Speaker 02:
And they were evaluating it for purposes of deciding whether it started the effective date clock.

[00:06:38] Speaker 02:
They would have to scrutinize it to figure out if it said enough about the condition, because that they've sort of dropped out.

[00:06:46] Speaker 02:
But there used to be some analysis of more than name, social security number, and I'm going to file a claim.

[00:06:55] Speaker 02:
So why doesn't that make things easier?

[00:06:58] Speaker 02:
Which I take as the principal point that they

[00:07:00] Speaker 02:
raised for saying here's why it's rational and I know you're eager to answer so go ahead.

[00:07:04] Speaker 00:
Because that requirement that a specific condition had to be defined within the informal submission was entirely self-employed by the VA.

[00:07:16] Speaker 00:
So what we are arguing is that the new rule is arbitrary and capricious, not just because the previous rule may have been inefficient.

[00:07:25] Speaker 00:
The point is that the new rule, the efficient way to accomplish the goal that the VA is as fixed for itself,

[00:07:31] Speaker 00:
is simply to say we will no longer require the identification of a specific condition just as the intent to file form which they have introduced does.

[00:07:40] Speaker 00:
All we are saying is that the efficient way to address their policy goal and the only rational way and the way that does not impose unneeded and unnecessary formalities on vulnerable veterans

[00:07:52] Speaker 00:
is to require exactly the same kind of information that is required on the intent to file form just to accept it if it's written on plain paper as opposed to formal paper, since the VA has to review that plain paper statement anyway.

[00:08:04] Speaker 01:
So in certain respects, the position you're advocating is one kind of along the line.

[00:08:08] Speaker 01:
You want to take what you like about the VA regulation, the changes that you like, but then also expand them to be the form of the previous system.

[00:08:17] Speaker 01:
Is that what you're advocating?

[00:08:19] Speaker 00:
I'm not sure I would frame the request in those terms, Your Honor.

[00:08:22] Speaker 00:
I would say that what we are advocating is for the VA not to add the requirements that a standardized form be used, but just leave them open as an option, because making that option a requirement is a policy choice which is arbitrary and capricious.

[00:08:37] Speaker 01:
What about the phone call aspect of it that was added?

[00:08:40] Speaker 01:
I mean, doesn't that make it very easy for claimants to pursue this?

[00:08:44] Speaker 01:
process, I mean, in fact, in certain respects, easier.

[00:08:47] Speaker 01:
I mean, what we're talking here is what action creates the placeholder for being able to go back one year in terms of benefits, if you prevail on the benefit question, right?

[00:08:57] Speaker 01:
Right.

[00:08:58] Speaker 01:
So isn't it, in certain respects, really much easier to deal with the new system than it was the old?

[00:09:04] Speaker 00:
Again, we don't take issue with the fact that the new system does incorporate some overdue

[00:09:12] Speaker 00:
aspects of modernization to the VA system.

[00:09:14] Speaker 00:
We don't take issue with that proposition.

[00:09:16] Speaker 00:
The proposition that we take issue with is just that those changes are required to the exclusion of other systems which, if one is to consider a rational system that does not unnecessarily penalize vulnerable veterans, must be in place.

[00:09:32] Speaker 01:
But if you recognize that certain changes are

[00:09:34] Speaker 01:
are overdue, that's because part of that is the need for uniformity and the need for clarity so that it is a more efficient system.

[00:09:43] Speaker 01:
So if that's the case, why aren't the regulations as they've been constituted sufficient to at least under the reasonable standard?

[00:09:50] Speaker 00:
Because we're not asking to strike down all the regulations that have been imposed.

[00:09:54] Speaker 00:
All we are asking to strike down and hold unlawful is the requirement that only those new systems be used since continuing certain aspects, limited aspects.

[00:10:03] Speaker 00:
of the informal placeholder system would add no work to the VA and would maintain an option open to vulnerable veterans who will be penalized and are being penalized by the current regulations.

[00:10:15] Speaker 00:
I see a kind of my rebuttal time.

[00:10:18] Speaker 01:
Judge Toronto has another question.

[00:10:19] Speaker 02:
I do want to hear about the second issue, but if somebody else is going to address that, I'm happy to wait for that.

[00:10:28] Speaker 00:
I think it was very briefly just say that.

[00:10:32] Speaker 01:
Go ahead.

[00:10:32] Speaker 01:
It's no problem with the clock.

[00:10:34] Speaker 01:
Keep going.

[00:10:34] Speaker 00:
Thank you.

[00:10:36] Speaker 00:
The VS rulemaking also makes clear that it will not develop

[00:10:40] Speaker 00:
an applicant's medical disability claim for a given medical condition until that specific medical condition is actually expressly raised, or there is a complication of a condition which has been raised, no matter how unambiguous the evidence of record that the VA is totally required to review makes that condition.

[00:11:01] Speaker 02:
I may be misremembering, so I think you just said that what the VA has said is that

[00:11:08] Speaker 02:
it will not develop the evidence on, let's call it, the unrelated second condition.

[00:11:17] Speaker 02:
I think we're on the same page about what that is, right?

[00:11:20] Speaker 02:
I didn't remember that that's what the VA had said, only that in developing whatever the evidence in the investigation of claim one reveals, some of what it reveals will have to be

[00:11:38] Speaker 02:
filed with a second claim with an accordingly later effective date, but not that they wouldn't develop the evidence.

[00:11:49] Speaker 00:
Well, they would develop the evidence only based on the first condition, because the scope of the claim as redefined in 3.155D2 will just be limited to that first condition.

[00:12:00] Speaker 00:
There will be no occasion for the VA to even inform the veterans.

[00:12:03] Speaker 00:
the veteran who does not know about his entitlement to benefits under the second condition.

[00:12:08] Speaker 02:
Do you happen to have a Federal Register citation for what you're describing as the limitation on what the VA will be doing if a second condition arises in the course of submissions on claim number one?

[00:12:32] Speaker 00:
The new regulation 3.155D2J38 in this case says that once VA received a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of that adjudication.

[00:12:48] Speaker 00:
And then it goes on to say, VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition, as well entitlement to any additional benefits or complication of the claimed condition.

[00:13:01] Speaker 02:
Right.

[00:13:02] Speaker 02:
But I took that language to mean that it would adjudicate only conditions related to condition number one, but not that in the course of that it wouldn't develop the evidence.

[00:13:18] Speaker 02:
for condition number two, if it came to it, it would just tell the claimant, this is about the knee and not the elbow, and in this case, the knee and the elbow conditions are unrelated, so you only filed about the knee, and if you've got a claim about the elbow, you've got to file a new claim, and a new starting date would arise.

[00:13:38] Speaker 02:
Have I misunderstood what

[00:13:40] Speaker 02:
what the VA has indicated.

[00:13:41] Speaker 00:
Well, the VA has not indicated anywhere under the regulations now that it would actually inform the veteran as to that separate condition.

[00:13:49] Speaker 00:
At page 42 of their brief, I think they make quite clear that under the final rule, only an issue that is not what they call no factual medical... I'm sorry, could you repeat what you said?

[00:13:58] Speaker 01:
You said they've made it clear.

[00:13:59] Speaker 01:
You're citing the brief.

[00:14:00] Speaker 00:
At page 42, I'm sorry.

[00:14:02] Speaker 00:
They say under the final rule, an issue that has no factual medical or causal relationship to any of the symptoms or conditions identified on the standard form, by that they mean basically the second condition in Judge Taranto's hypothetical, would not be considered part of the claim.

[00:14:18] Speaker 00:
At that point, if a condition is not considered part of the claim, there is nothing that the VA is required to do.

[00:14:24] Speaker 00:
They've not acknowledged any requirement to do anything.

[00:14:27] Speaker 01:
All we're saying... And how does this differ from what existed in the prior system?

[00:14:30] Speaker 01:
because I think there might be some dispute between the parties in terms of how the VA handled this historically.

[00:14:35] Speaker 00:
Right.

[00:14:36] Speaker 00:
There is some dispute between the parties about how the VA has handled this kind of issue in the past, largely because, as we know from the Robertson line of cases, Maraj, Andrews, and

[00:14:48] Speaker 00:
Comer and most recently Harris, the VA has been extremely recalcitrant about giving full effect to this court's Robertson decision.

[00:14:54] Speaker 00:
What we read Robertson to say is to stand for the proposition, which is what he actually said, that the VA must develop all potential claims.

[00:15:04] Speaker 00:
And what they're saying in their brief is, no, Robertson does not require us to develop all potential claims that are raised by the evidence, it only requires us to

[00:15:14] Speaker 00:
to adjudicate, say, ancillary benefits or complications of actually expressly raised claims.

[00:15:22] Speaker 01:
Robeson, as I recall, involved TDIU, which one could at least, I think, fairly argue was kind of a separate issue.

[00:15:29] Speaker 01:
It's not a completely separate claim, but it's a claim for something that builds on to the claim that was initially requested.

[00:15:36] Speaker 01:
Did any of the other cases you just referenced

[00:15:38] Speaker 01:
deal with really different conditions and completely different claims, or were they also kind of TDIU issues?

[00:15:45] Speaker 00:
No, they were not all TDIU issues.

[00:15:47] Speaker 00:
This court has repeatedly reminded the VA that Roberson is not limited to its facts, and it's not limited to TDIU.

[00:15:54] Speaker 00:
Most destructive, I believe, is this court's recent decision in Harris, recent from a couple of years ago, where this court held that Harris

[00:16:03] Speaker 00:
applied in a situation in which the veteran went in for an Agent Orange Registry exam, which is a very wide-ranging exam where a number of different conditions are tested.

[00:16:14] Speaker 00:
And as part of that examination, the veteran only submitted a form that basically said, signed a form that said this is an application for benefits.

[00:16:22] Speaker 00:
That's all it said.

[00:16:23] Speaker 00:
The veteran did not identify any specific condition on that form.

[00:16:27] Speaker 00:
or otherwise.

[00:16:28] Speaker 00:
Now, separately, the VA generated an Agent Orange Registry form, which listed a number of one condition, dermatitis in particular.

[00:16:37] Speaker 00:
And then the question arose whether that expressive intent applied for benefits accompanied by evidence generated by the VA was sufficient to trigger Roberson and the duty to develop the claim.

[00:16:52] Speaker 00:
And the scores say yes.

[00:16:53] Speaker 00:
Harris said,

[00:16:55] Speaker 00:
Yes, Roberson does apply under those circumstances and remanded to the VA to adjudicate the claim.

[00:17:00] Speaker 01:
What happens if you have a claim for something, a problem with your knee and it turns out there's some evidence in the record that you've got some symptoms of PTSD?

[00:17:10] Speaker 01:
Is it your view that under the prior system the VA having uncovered some suggestion of PTSD would have then treated that initial claim and adjudicated it as if

[00:17:21] Speaker 01:
PTSD was a separate aspect of that claim, or would they have just required a new claim to be filed?

[00:17:28] Speaker 00:
Right.

[00:17:28] Speaker 00:
What I think Roberson requires would have required the VA to identify that claim and ask the veteran whether he wanted to pursue that claim.

[00:17:36] Speaker 00:
That is the duty to develop the claim, which is reflected in Roberson.

[00:17:39] Speaker 00:
Now, one thing I want to make clear is we're not saying that any sort of medical condition that somehow arises on the evidence is subject to this Roberson duty to develop.

[00:17:49] Speaker 00:
What we are saying is that conditions

[00:17:52] Speaker 00:
that are an ambiguous on the face of the evidence and for which entitlement to benefit is also an ambiguous on the face of the evidence are subject to this duty.

[00:18:02] Speaker 03:
The VA says, and it's brave, that they would broadly construe the scope of all symptoms or conditions identified on the application form.

[00:18:13] Speaker 03:
And I take that as making me feel warm and fuzzy, except that they cite to the Federal Register

[00:18:22] Speaker 03:
14 and 15 in the appendix, and I don't entirely derive that sentence out of the Federal Register.

[00:18:35] Speaker 03:
What's your take on it?

[00:18:37] Speaker 03:
Because if they, if you say in passing, you know, I'm making a claim on my knee, and by the way, I took a shrapnel round in my elbow,

[00:18:50] Speaker 03:
and I can't move my arm, it would seem that the VA under this sense would say, oh, there's a claim, we've got to develop it.

[00:18:58] Speaker 00:
Well, perhaps it would if the claim is actually, if that condition is specifically identified on the application.

[00:19:05] Speaker 00:
What we're taking issue with is the VA's position that if a specific condition is not... Well, you gave me a perhaps.

[00:19:12] Speaker 03:
Are you saying it would under the reg?

[00:19:15] Speaker 00:
Under the record, I believe if a condition is specifically identified.

[00:19:21] Speaker 01:
But in Judge Wallach's hypothetical, it wasn't specifically identified.

[00:19:24] Speaker 03:
They're saying, I have a claim on my knee.

[00:19:27] Speaker 03:
But by the way, when my knee got hurt, the shrapnel also hit my elbow, and I can't seem to use my hand.

[00:19:34] Speaker 00:
My understanding of their position is that if the application were to actually mention, and they all meant the application, not the evidence, if the application specifically mentioned, or not specifically mentioned,

[00:19:45] Speaker 00:
a symptom, they take the position that, at least as a matter of principle, they would develop it.

[00:19:51] Speaker 00:
But the duty to develop comes up in a different context, which is the veteran knows that he may be entitled to benefits for one condition, but just doesn't know that he may be entitled to benefits for another condition.

[00:20:02] Speaker 00:
So that condition is not on the application.

[00:20:05] Speaker 00:
But it's clear on the face of the evidence before the agency that the veteran also has that separate condition.

[00:20:13] Speaker 00:
And it's also clear to the agency that there is service connection and that the veteran is entitled to the benefit.

[00:20:18] Speaker 00:
The VA says under Roberson, we have no duty to do anything at all with that claim.

[00:20:22] Speaker 00:
We're saying, no, you have a duty to develop that claim.

[00:20:24] Speaker 03:
But they say they would broadly construe the scope of all symptoms or conditions identified in the application form.

[00:20:34] Speaker 03:
So if the vet identifies that symptom,

[00:20:40] Speaker 00:
That's correct, but the vet has no idea he may be entitled to benefits for that symptom, may simply not identify that symptom.

[00:20:48] Speaker 00:
The problem is that veterans are not, this is a very formal system that assumes that the veteran may not know the exact extent of his legal rights.

[00:20:56] Speaker 01:
Is your concern here, I mean there are two ways this can go, would you be satisfied

[00:21:01] Speaker 01:
If it was clear that the VA had an obligation or intended to then tell the veteran, if new material is uncovered, you need to file a claim on this.

[00:21:11] Speaker 01:
Or is your concern and your insistence on the fact that that has to be considered as part of this claim, because we're talking about the date of the filing and how much

[00:21:20] Speaker 01:
payment the veteran is actually going to get out of this particular claim.

[00:21:23] Speaker 00:
Do you understand my question?

[00:21:24] Speaker 00:
Yes, we would prefer if you were... Our position should be considered part of the same claim because the whole duty that is consistent with the origin and the concept of the Roberson duty, which is the veteran submitted a form and said that expressed intent to apply for benefits and it is that intent that we think Roberson requires

[00:21:45] Speaker 00:
to include all conditions.

[00:21:47] Speaker 00:
We think that's a principal way to resolve this case.

[00:21:50] Speaker 00:
Of course, as an alternative, if the VA, if the court were to hold it, the second claim that the VA at least has a duty to alert and develop and alert the veteran to the need of initiating, of filing a separate application, of course, that would be better than what the VA recognizes as a duty right now.

[00:22:07] Speaker 01:
Okay.

[00:22:08] Speaker 01:
Thank you.

[00:22:08] Speaker 01:
We've held you way beyond your time.

[00:22:10] Speaker 01:
We'll restore three minutes of rebuttal and hear from your colleagues.

[00:22:14] Speaker 01:
Thank you.

[00:22:18] Speaker 03:
But you're only going to get a minute now.

[00:22:22] Speaker 06:
That may be a good thing, depending on how it goes.

[00:22:26] Speaker 06:
May it please the court, Doug Groszinski for Veterans Justice Group.

[00:22:30] Speaker 06:
My principal focus is intended to be on the notice of disagreement, but of course, we'll be happy to discuss our position on any of the other issues.

[00:22:41] Speaker 06:
Petitioners are here today because the VA has gone well beyond requiring standardized forms.

[00:22:48] Speaker 06:
I think all of the petitioners agree that standardization at any level is an appropriate action for the Secretary to continuously consider.

[00:22:58] Speaker 06:
And this particular action of standardized forms, in principle, is very beneficial to both the veteran and the VA.

[00:23:06] Speaker 06:
However, the Secretary has gone well beyond that in this.

[00:23:09] Speaker 01:
Well, why don't you tell us on the Notice of Disagreement what the prior practice was and how the regulations changed that prior practice.

[00:23:17] Speaker 06:
The prior practice is illustrated in the Joint Appendix 334, which is a Notice of Disagreement, which I happen to have produced, that specifically states and identifies... On what page?

[00:23:32] Speaker 02:
I'm sorry.

[00:23:32] Speaker 02:
334.

[00:23:32] Speaker 06:
334, okay.

[00:23:36] Speaker 06:
It's the last entry in the Joint Appendix.

[00:23:41] Speaker 06:
334 and then subsequent approval of that notice of disagreement on the following three pages.

[00:23:48] Speaker 06:
It was very clear and accepted for the decades that I've been in this business that the determination that you had to identify was the date of the rating decision.

[00:24:00] Speaker 06:
That's the determination was the rating decision, not the issues within the rating decision.

[00:24:07] Speaker 06:
And as you can see, this

[00:24:09] Speaker 06:
Notice of disagreement is two sentences essentially says, we disagree with the rating decision dated and wish to appeal the issues therein.

[00:24:22] Speaker 02:
Do I understand?

[00:24:23] Speaker 02:
Well, let me just ask you, in the new regime, the new regulatory regime, can you fill in the box on the form that says essentially what your 334 letter said?

[00:24:38] Speaker 02:
I disagree with and seek review of all of the decision contained in that decision?

[00:24:44] Speaker 06:
Absolutely not, Your Honor.

[00:24:46] Speaker 06:
And as a matter of fact, as I will point out later, the Form 9, which has been required for decades, we have actually back into the 60s at least, which is subsequent, which is the downstream perfection of the appeal,

[00:25:01] Speaker 06:
contains such a box.

[00:25:03] Speaker 06:
Is that after the statement of the case?

[00:25:05] Speaker 02:
The regional office has done its statement of the case.

[00:25:08] Speaker 06:
Yeah, the process that we're talking about is you receive a rating decision.

[00:25:11] Speaker 06:
You have one year to file a notice of disagreement.

[00:25:14] Speaker 06:
Then following a notice of disagreement, the VA will eventually prepare a statement of the case, which by statute is required to discuss the issues within the rating decision.

[00:25:28] Speaker 06:
That's 7105D3.

[00:25:30] Speaker 06:
then the now appellant can perfect that appeal by filing a VA form 9, which has been required for decades, as I said.

[00:25:40] Speaker 06:
On the VA form 9, there are two check boxes, even though it's recently been moved from the top to the bottom.

[00:25:46] Speaker 06:
One check box says, I want to appeal all the issues in the statement of the case and any subsequent supplemental statement of the cases.

[00:25:56] Speaker 06:
And the second box says, I only wish to appeal the following issues.

[00:26:00] Speaker 06:
That is completely contrary to the logic in the brief by the secretary and the rulemaking in that the more specific requirement for the perfection allows you to check a box that says all.

[00:26:16] Speaker 06:
When you're allowed to have paid counsel to advise you.

[00:26:21] Speaker 06:
And in many cases, my advice is we don't want to appeal them all.

[00:26:26] Speaker 06:
We want to appeal these, because these are the ones that were wrong.

[00:26:31] Speaker 06:
upfront in the current case the NOD form does not contain an all box.

[00:26:38] Speaker 06:
It asks you for the date.

[00:26:39] Speaker 01:
You're talking about the new system under the regulation.

[00:26:42] Speaker 06:
The new form which is cited in the brief I get all the numbers wrong but the new form it does not have that box.

[00:26:49] Speaker 02:
I remember seeing the new form somewhere do you have a but now I can't find it is it

[00:26:55] Speaker 02:
We have a copy of it here.

[00:26:56] Speaker 02:
Oh, it's not in the papers.

[00:26:58] Speaker 06:
It wasn't in mine.

[00:27:00] Speaker 06:
It was an omission on my part.

[00:27:01] Speaker 06:
It actually does not contain a box at all.

[00:27:04] Speaker 06:
It has blanks where you have to identify the issue you wish to appeal.

[00:27:09] Speaker 06:
And it has four boxes in the middle.

[00:27:12] Speaker 06:
The form number is VA 210958.

[00:27:14] Speaker 06:
And it also asks for the date of the rating decision.

[00:27:22] Speaker 06:
but then it has in the middle, area of disagreement, the check boxes are service connection, effective date, evaluation, disability, or other.

[00:27:30] Speaker 06:
And it tells you you have to list those issues.

[00:27:33] Speaker 02:
So I actually said, I think it's maybe in the third case, JA 295.

[00:27:37] Speaker 02:
Is that it?

[00:27:39] Speaker 02:
I think that's what I'm looking at.

[00:27:40] Speaker 02:
This is, what was it, form?

[00:27:43] Speaker 02:
958.

[00:27:46] Speaker 02:
Yes.

[00:27:46] Speaker 02:
Yeah, it is.

[00:27:48] Speaker 06:
And as you will see, the issue there is,

[00:27:51] Speaker 06:
It is a more specific, the specification is the issue that we have.

[00:27:55] Speaker 06:
You have an unrepresented veteran largely who is prohibited by statute from getting and arranging paid counsel and he's asked and required now under penalty of permanent deprivation to identify the specific issues that he or she disagrees with.

[00:28:15] Speaker 06:
It's particularly troubling

[00:28:17] Speaker 06:
when you're appealing the failure to address an issue, which I will represent in my practice is largely the issues that we are raising because the rating decision did not address something.

[00:28:32] Speaker 02:
So in this case... And this form, if we're looking at the same thing, in the middle column itemizes service connection, effective date, evaluation of disability, other.

[00:28:48] Speaker 02:
and the problem I gather is that you don't think that that allows somebody just to write all in the left column and the breakdown into three plus a catch-all might be misleading demand too much in in the filing of the notice absolutely absolutely not your honor you cannot I would submit under the

[00:29:15] Speaker 06:
the brief as well as the specifics of the rule itself.

[00:29:19] Speaker 06:
You must specify the issues or those issues are lost.

[00:29:24] Speaker 06:
And that is our complaint.

[00:29:27] Speaker 03:
If you over check what's the result, that is, the veteran sits down and just checks all the boxes.

[00:29:34] Speaker 06:
Well, you still have to have the specific area of disagreement.

[00:29:37] Speaker 06:
And the specific area of disagreement may be you did not consider

[00:29:42] Speaker 06:
For example, M21 section so-and-so Q.10, which tells you that you're supposed to do something because I'm a Thailand Agent Orange claimant.

[00:29:54] Speaker 06:
All right.

[00:29:56] Speaker 06:
Just putting in here all.

[00:29:58] Speaker 03:
Just putting in specific area of disagreement.

[00:30:01] Speaker 03:
I didn't get the benefits to which I was entitled.

[00:30:04] Speaker 06:
I believe that is very clear.

[00:30:06] Speaker 06:
That is exactly what the rulemaking is trying to prevent, in other words.

[00:30:11] Speaker 06:
Or why change it?

[00:30:12] Speaker 06:
Why change it at all?

[00:30:13] Speaker 06:
Now, in practice, good practitioners don't just put in the example I showed you.

[00:30:18] Speaker 06:
That was under short-term, we needed to get something in the whole placeholder.

[00:30:22] Speaker 06:
We will explain why we believe, all right?

[00:30:24] Speaker 06:
But the real telltale here is the VA's own practice and history.

[00:30:29] Speaker 02:
Can I just say, I mean, so there's a, I think I'm reading correctly in the new regulation, 2201A-4,

[00:30:38] Speaker 02:
There's a sentence that says, if the claimant wishes to appeal all of the issues decided by the agency of original jurisdiction, the form must clearly indicate that intent.

[00:30:50] Speaker 02:
Doesn't that indicate that putting the word all in that box will suffice?

[00:30:57] Speaker 06:
Your Honor, I will submit that very few of any veterans read the regulation before filling out this form.

[00:31:06] Speaker 06:
There is no all on here.

[00:31:08] Speaker 06:
Their explanation for this is that this is required to save them process to be efficient.

[00:31:16] Speaker 06:
I submit that putting all on here under the explanation given will not end up in the same result.

[00:31:24] Speaker 01:
But I may be talking about something else, but also I understood the regulation, and Mr. Hockey can correct me if I'm wrong when we hear from him, that under 19.24B1 it also says that if the

[00:31:38] Speaker 01:
the form is inadequate or incorrect, the claimant does not have to cure or correct its form unless the VA informs him that his form was incomplete and requests clarification.

[00:31:52] Speaker 01:
Is that your understanding?

[00:31:53] Speaker 01:
So if you get a form that says all that you say would be treated as inadequate, the VA can't just throw it away or reject it.

[00:32:00] Speaker 01:
It's required to go back to the claimant and tell him or her

[00:32:05] Speaker 01:
that this is inadequate for such and such reasons and give him a chance to prove it.

[00:32:09] Speaker 06:
But then we've defeated the entire purpose for the rulemaking.

[00:32:12] Speaker 06:
Because if you have a form which is so unclear and ambiguous that you have to ask for clarification, what's the difference between that form and the notification on a letter already?

[00:32:24] Speaker 03:
Would you be happy if your opposing counsel stood up and said, indeed, all will suffice, and if we're not happy with it, we'll ask further questions?

[00:32:35] Speaker 06:
I would accept that if it was actually written in the regulation or if there was some formal... Well, he says that's my client's interpretation.

[00:32:46] Speaker 06:
No, I don't believe that... Spread on the record?

[00:32:51] Speaker 06:
It's still misleading because I would accept if they swapped the forms, all right, put a box.

[00:32:57] Speaker 06:
You have an unrepresented veteran who is

[00:33:00] Speaker 06:
getting documents he doesn't understand, in some cases still one-liners that say, you know, we didn't see it in your service record, goodbye.

[00:33:07] Speaker 06:
And there's no box on here that says, I'm just disagreeing with everything.

[00:33:12] Speaker 06:
And the write-up here is not.

[00:33:14] Speaker 06:
The brief does not say, oh, just put all in there.

[00:33:16] Speaker 06:
It defends the specificity.

[00:33:18] Speaker 03:
You know, we see so many submitted appeals in which we ask, what is your

[00:33:28] Speaker 03:
specific claim or Mr. Carpenter's nodding, and it simply says they violated the Constitution.

[00:33:37] Speaker 03:
And we scan, you know, we delve into the record to see if what it is, it's in there.

[00:33:47] Speaker 06:
Absolutely, Your Honor, and that is what VA is saying they're not going to do anymore.

[00:33:51] Speaker 06:
That's the inefficiency they're trying to remove.

[00:33:53] Speaker 06:
If indeed that

[00:33:56] Speaker 06:
The whole purpose of the NOD portion of this rulemaking is to become more efficient than you need to swap the forms.

[00:34:05] Speaker 06:
Say all, that's the whole purpose.

[00:34:06] Speaker 06:
They're violating, the point here is statutory.

[00:34:10] Speaker 06:
Congress was very explicit.

[00:34:11] Speaker 06:
This is a three-step process.

[00:34:13] Speaker 06:
I think both sides agree that three-step process could be better as a two-step process.

[00:34:17] Speaker 06:
But it is a three-step process.

[00:34:19] Speaker 06:
We can't change it.

[00:34:20] Speaker 06:
VA should not be able to change it for administrative efficiency

[00:34:25] Speaker 06:
as already found by this court in 2003 in two separate cases, the PVA case, 345 F3rd, and also the DAV case, where efficiency was given for shortening the one-year period to 30 days and also for authorizing the board on its own to initially review evidence.

[00:34:52] Speaker 06:
They said it was efficiency.

[00:34:53] Speaker 06:
We need to shorten things.

[00:34:54] Speaker 06:
What they haven't said in this, other than pointing that out to you as well, what they also haven't identified is any alternatives to all this tumult.

[00:35:05] Speaker 06:
They don't even index their own files.

[00:35:08] Speaker 06:
Talk about inefficiency.

[00:35:10] Speaker 06:
Index the files, everyone could find these files.

[00:35:12] Speaker 06:
You can't find a form inside of a 10,000 page file any quicker than you can find my one page letter.

[00:35:19] Speaker 01:
Well, just because there's more work to be done doesn't necessarily mean that this isn't an appropriate first step.

[00:35:25] Speaker 01:
I mean, I take your point, but that doesn't really get us to where you need to be.

[00:35:29] Speaker 06:
Well, but there are no contemplation of alternatives.

[00:35:35] Speaker 06:
They jump to this in reaction.

[00:35:36] Speaker 06:
And that is a technical requirement of a rulemaking like this, is to have a factual basis.

[00:35:43] Speaker 06:
They've identified lots of problems.

[00:35:45] Speaker 06:
We agree they have all those problems.

[00:35:47] Speaker 06:
What they didn't say was,

[00:35:48] Speaker 06:
And we've looked at this, and we can save 14 days out of our 22-day average to route mail from the mailroom to a desk by they just say, we have a problem.

[00:35:59] Speaker 06:
We're going to require all these forms.

[00:36:02] Speaker 06:
As a strictly APA matter, this rulemaking fails because there's no evidence for anything.

[00:36:08] Speaker 06:
Specifically, the NOD was based on evidence from a regional office that was found to have been cooking the books.

[00:36:16] Speaker 06:
Nothing else was provided.

[00:36:18] Speaker 06:
As a matter of fact, the use of Form 9, that form now takes from the time they fill out that Form 9 to it actually gets certified to the board, is twice as long as it is from use of the NOD without the form to when they actually issue an SOC.

[00:36:38] Speaker 01:
Can I ask you, Mr. Hocky may know the answer to this, I'm not sure, but maybe it's in the record, what's the volume we're talking about here nationally?

[00:36:46] Speaker 01:
annually?

[00:36:47] Speaker 06:
I believe the board's report that I just cited, those statistics from the 2014, shows that they're expecting about 60 to 70,000 appeals.

[00:36:57] Speaker 06:
So those will be the four nines.

[00:36:59] Speaker 06:
The NODs are somewhat larger than that because they get whittled down.

[00:37:02] Speaker 06:
So we once had a million claim backlog.

[00:37:06] Speaker 06:
Appeals were

[00:37:08] Speaker 06:
less than half of that, if I recall.

[00:37:11] Speaker 06:
But you're talking 100,000, maybe more.

[00:37:14] Speaker 06:
But in that range, probably several hundred thousand as we move forward.

[00:37:19] Speaker 06:
The point is, the evidence that was not cited, the facts that have been going back 20 years, it's always taken longer to work the Form IX, which has all the attributes that they're now attributing to the NOD form, than it has to process

[00:37:38] Speaker 06:
the nod form notice of disagreement.

[00:37:41] Speaker 06:
Therefore, the evidence underlying the entire premise either does not exist or cuts against.

[00:37:48] Speaker 06:
Thank you.

[00:37:51] Speaker 01:
And we'll restore your rebuttal as well.

[00:38:07] Speaker 04:
May I please the court?

[00:38:08] Speaker 04:
Kenneth Carpenter appearing on behalf of the National Organization of Veterans Advocates.

[00:38:12] Speaker 04:
To begin with your question, Judge Prost, the National Organization of Veterans Advocates has two problems with this regulation that we would like the court to address.

[00:38:21] Speaker 04:
The first is that the filing is mandatory and not permissive on their standardized form.

[00:38:28] Speaker 04:
In other words, standardized form is fine, but why must it be mandatory?

[00:38:33] Speaker 04:
Why must all veterans be required to do that?

[00:38:37] Speaker 04:
in the preceding 60 plus years that the statute has been in place and the statute is 38 USC section 7105.

[00:38:47] Speaker 04:
The process has been you file a notice of disagreement with the decision that is made.

[00:38:52] Speaker 04:
The VA responds with a statement of case, you complete your appeal.

[00:38:56] Speaker 04:
I know of no other administrative process that requires an appellant to affirm twice that they wish to appeal.

[00:39:06] Speaker 04:
But that is the statutory requirement under 7105.

[00:39:09] Speaker 02:
Tell me the notice of agreement and then the later thing.

[00:39:11] Speaker 04:
And then the later.

[00:39:12] Speaker 02:
But tell me, so if they file a notice of disagreement with the written decision, at that point, the regional office or the original jurisdiction office, whatever it's currently called, can, upon reviewing its initial decision, actually change its mind?

[00:39:35] Speaker 02:
right and yes right well so in fact they're mandated to do that doesn't that mean that it makes perfect sense to have a two-stage process because the statement of the case may actually be different from the from the written decision and indeed more favorable to the veteran well if you're asking for my personal opinion as to whether it makes sense no your honor it makes absolutely no sense it is a redundant system that made sense when there was no judicial review

[00:40:03] Speaker 04:
because you were trying to make sure that everything was put into the pot, if you will, to go for the only review that you were going to get by the Board of Veterans' Appeals.

[00:40:15] Speaker 04:
There was no appeal after the Board of Veterans' Appeals.

[00:40:17] Speaker 04:
You simply had to start over with new and material evidence.

[00:40:21] Speaker 02:
Well, maybe you can just tell me why my current picture of this is wrong.

[00:40:27] Speaker 02:
So my current picture is the regional office issues a written decision

[00:40:33] Speaker 02:
The veteran says, I disagree with effective date or something.

[00:40:39] Speaker 02:
The regional office says, in making, in reviewing, in writing up the statement of the case, says, oh, I now see that I was wrong about this, so I'm now giving you more than I was giving you the first time.

[00:40:55] Speaker 02:
The veteran still disagrees now with a somewhat more favorable but not favorable enough.

[00:41:02] Speaker 02:
statement of the case and now files an appeal where the grounds of that appeal are actually narrower than the grounds of the notice of disagreement.

[00:41:12] Speaker 02:
Is that not the way it works or is that unreasonable?

[00:41:16] Speaker 04:
And that does work in that particular circumstance.

[00:41:19] Speaker 04:
Where it doesn't work is where you have multiple claims that are being made.

[00:41:23] Speaker 04:
And one of the things that I think is important for this court to really focus in on in examining this regulation is what the statute says.

[00:41:32] Speaker 04:
The statute at 7105 says is that the notice of disagreement is intended for a single purpose, to initiate an appeal.

[00:41:41] Speaker 04:
What it doesn't say, unfortunately, is what you're initiating that appeal from.

[00:41:48] Speaker 04:
In order to understand that, you have to read the preceding section, which is 7104, which is that the Secretary makes one decision that may be reviewed, and that review is conducted by the Board of Veterans' Appeals.

[00:42:02] Speaker 04:
So what we're appealing, if you will, is the decision.

[00:42:07] Speaker 04:
What is problematic in my view with the VA's form is that nowhere in the form does it say identify the decision with which you have your disagreement.

[00:42:20] Speaker 04:
That's all that the notice of disagreement is required to do by statute.

[00:42:25] Speaker 04:
What it does instead is to create a subset of descriptors

[00:42:31] Speaker 04:
such as issues, and nothing in the statute says that you're appealing issues, and then it says areas of disagreement.

[00:42:42] Speaker 04:
Now we end up having three different concepts, and then you throw the third in, which this court did in the earlier questioning of my colleagues, which talks about claims, when there are multiple claims.

[00:42:55] Speaker 04:
Are you expressing disagreement with a claim, or are you expressing disagreement with a decision?

[00:43:01] Speaker 04:
My suggestion is that the only way that 7105 can be read is that you are expressing disagreement with the decision of the Secretary, because it is the decision of the Secretary under 7104 which is being appealed for review by the Board of Veterans' Appeals.

[00:43:19] Speaker 04:
Therefore, all that is required and should be required by a VA standardized form is to say that I express disagreement

[00:43:29] Speaker 04:
with the decision made to deny, with the decision made by the VA.

[00:43:37] Speaker 04:
To go into any more detail takes out of play the second step, which is contemplated by Congress, which is for the VA to take a second look once disagreement has been identified or expressed by the veteran.

[00:43:53] Speaker 04:
Mr. Carpenter.

[00:43:54] Speaker 04:
Yes, sir.

[00:43:55] Speaker 03:
You were willing earlier to give us your personal opinion on something, so you've thought about this

[00:44:01] Speaker 03:
as a big picture for a lot, can't the VA legitimately balance overall benefits for all veterans against an increased difficulty for certain individual veterans?

[00:44:16] Speaker 04:
No.

[00:44:17] Speaker 04:
I think that's fundamentally an apposite to the notion.

[00:44:24] Speaker 03:
Even though, in my question, overall, it's clearly ways in favor

[00:44:31] Speaker 03:
of all vets.

[00:44:33] Speaker 04:
Well, because I don't believe it does clearly open it.

[00:44:35] Speaker 04:
No, no, but can't they do that?

[00:44:37] Speaker 04:
No, I do not believe they can, Your Honor, because it's this statute.

[00:44:43] Speaker 04:
We're dealing with 7105, and the only instruction we have from Congress is that the function of 7105A for the notice of disagreement is the single function of initiating an appeal.

[00:44:57] Speaker 04:
to start the appeal process, the start your engines at the Indianapolis 500.

[00:45:04] Speaker 04:
That's all you're dropping the flag to let the VA know, to simply put them on notice that the veteran wishes to appeal.

[00:45:14] Speaker 04:
There is no other purpose served by the notice of disagreement.

[00:45:17] Speaker 04:
And the creation of this mandatory form starts itemizing the things that you must have

[00:45:24] Speaker 04:
And if you don't have them, then we're going to consider them waived.

[00:45:28] Speaker 04:
And that converts this non-adversarial system into a gotcha adversarial system, which is not the intent of Congress.

[00:45:36] Speaker 04:
The intent of Congress with the initiation of an appeal was simply to put the VA on notice.

[00:45:42] Speaker 04:
It is no more complex than that, and they have created a level of complexity

[00:45:48] Speaker 04:
that makes it difficult, quite candidly, for attorneys to understand how to do this.

[00:45:53] Speaker 02:
How do I, as an attorney... Mr. Carpenter, can I ask, what is your take on the question we were discussing earlier about whether writing the word all, or saying something in the relevant boxes to the effect, everything you said in your written description is wrong from A to Z.

[00:46:16] Speaker 02:
or just all.

[00:46:17] Speaker 02:
I disagree with it all.

[00:46:18] Speaker 02:
I mean, I guess this has been in effect now for six months.

[00:46:21] Speaker 02:
I don't know whether you have any experience or whether... Oh, yes.

[00:46:24] Speaker 04:
I have filed literally hundreds of these.

[00:46:26] Speaker 02:
I mean, I realize this is not part of the record in the rulemaking, but are they accepting those?

[00:46:30] Speaker 02:
Or, as the Chief Judge said, writing back and saying this is not acceptable, do better?

[00:46:36] Speaker 04:
They have been writing back saying it's not acceptable because they don't like my attachments because my attachments don't fit into their form.

[00:46:45] Speaker 04:
that they want answers to 10A.

[00:46:48] Speaker 04:
And when I say C, attachment, and I outline specifically in several pages.

[00:46:54] Speaker 04:
Well, maybe that's an incorporation problem rather than a. Well, I don't believe it is, Your Honor, because the problem is they want it to fit into their box.

[00:47:05] Speaker 03:
And if it doesn't.

[00:47:06] Speaker 03:
Mr. Chairman, have you tried saying, yeah, we disagree with all of it?

[00:47:10] Speaker 02:
Without attachments.

[00:47:11] Speaker 03:
Without attachments.

[00:47:12] Speaker 04:
No, Your Honor, because I am concerned about waiving.

[00:47:17] Speaker 04:
Because if I say all, and this is where the precision, the use of precision in our description of what we're dealing with here in terms of decision versus issue versus claim is critically important.

[00:47:34] Speaker 04:
Because this court has recently issued an opinion that deals with issue exhaustion.

[00:47:41] Speaker 04:
And issue is what's identified in the Notice of Disagreement.

[00:47:45] Speaker 04:
Decision is not what's identified there.

[00:47:48] Speaker 04:
And this is the setup for issue exhaustion and issue waiver.

[00:47:54] Speaker 04:
And that's not the intent of 7105.

[00:47:56] Speaker 04:
7105 has a single limited purpose to initiate the appeal.

[00:48:03] Speaker 04:
To try to respond to your question,

[00:48:05] Speaker 02:
I'm not even sure which question is pending, but I'm interested in what you have to say.

[00:48:11] Speaker 04:
The one about whether or not to answer the no box would be sufficient.

[00:48:15] Speaker 04:
I'm not sure in my view that there is a quote problem with that.

[00:48:22] Speaker 04:
However, I do not believe that it is required by or should be required by this court or to permit the VA to even require that.

[00:48:32] Speaker 04:
as part of a notice of disagreement form.

[00:48:36] Speaker 04:
All the notice of disagreement form should be saying is there was a decision made or I received notice from the VA on this date and I express disagreement and wish to initiate an appeal.

[00:48:49] Speaker 04:
Ironically, they have taken that out of their form.

[00:48:53] Speaker 04:
There is no longer in the form any requirement to express a desire to appeal.

[00:48:59] Speaker 04:
So they have made a form that is very convenient and no doubt will be very efficient for the VA, but it is not what is contemplated by the statute.

[00:49:10] Speaker 04:
What is contemplated by the statute is a single concept, which is to initiate an appeal.

[00:49:16] Speaker 01:
Thank you.

[00:49:16] Speaker 04:
Thank you very much, Your Honor.

[00:49:29] Speaker 03:
May I please escort?

[00:49:35] Speaker 05:
I thought, frankly, that I heard several this morning already.

[00:49:38] Speaker 05:
Everyone agrees that something needs to be done.

[00:49:42] Speaker 05:
Everyone agrees that standardization is perhaps a good way to do it, taking advantage of the technological advancements we've had since 1921, including the telephone.

[00:49:52] Speaker 05:
But what I've heard today, frankly, are a lot of concerns about hypothetical situations.

[00:49:58] Speaker 05:
What I've heard are a lot of potential as applied challenges down the road.

[00:50:03] Speaker 05:
But every time I think we talk about what the regulations do, we find out that the regulations don't do what has been suggested in the briefs.

[00:50:11] Speaker 05:
The regulations don't walk away from Comer, Roberson, or any of those other cases at all.

[00:50:17] Speaker 02:
Just to start being concrete about it and, I guess, working backwards, since we were just talking about the notice of disagreement, what do you

[00:50:28] Speaker 02:
What is the VA's position, I guess, first about what the form itself actually requires?

[00:50:35] Speaker 02:
And at least I'm quite focused on this question.

[00:50:39] Speaker 02:
Can the veterans say all and not more?

[00:50:42] Speaker 02:
And I guess Mr. Carpenter answered my question about how are things going now?

[00:50:49] Speaker 02:
And he says he's getting some...

[00:50:53] Speaker 02:
reaction from the VA saying, no, this is not a good enough form.

[00:50:56] Speaker 02:
You have to do something.

[00:50:57] Speaker 02:
Can you clarify what you think is actually required by this form?

[00:51:01] Speaker 05:
I can answer the first question for sure, Your Honor, because it's plainly in the regulation.

[00:51:04] Speaker 05:
The second answer about what Mr. Carpenter's been experiencing, I don't know.

[00:51:08] Speaker 05:
If he thinks he's satisfied the requirement in the regulation, which is to identify the issues by adding an attachment rather than putting a line in there, I would suspect maybe somebody at that RO needs to be talked to.

[00:51:19] Speaker 05:
But as far as what's required and whether somebody can answer

[00:51:23] Speaker 05:
The question in the NOD by saying all, I refer the court, I think as Judge Proce mentioned, to 20.2014, in which the form says, if the claimant wishes to appeal all of the issues decided by the agency of original jurisdiction, the form must clearly indicate that intent.

[00:51:40] Speaker 05:
So our understanding of this regulation is if somebody says all, then they've just appealed all.

[00:51:45] Speaker 02:
Can I ask you, I guess, a procedural question?

[00:51:48] Speaker 02:
Is my understanding right that if we thought that the form

[00:51:53] Speaker 02:
required some clarification to make that clear that that would have to be done by rulemaking?

[00:52:01] Speaker 05:
Well, can I just say this?

[00:52:04] Speaker 05:
I would have appreciated knowing that there was a concern about some box on the forum prior to coming here today.

[00:52:09] Speaker 02:
So let me ask you, what was the state of the comment of the record in the rulemaking about comments?

[00:52:18] Speaker 02:
Did somebody say,

[00:52:20] Speaker 02:
Part of the problem, there's an argument that the form simply shouldn't be required, the kind of thing that Mr. Carpenter was arguing about decisions and issues and claims and against tradition and so on.

[00:52:30] Speaker 02:
But the particular argument that at least we've been focusing on a little bit here about whether a simple I disagree with everything would suffice, was that a comment put to the VA with respect to this form?

[00:52:47] Speaker 05:
The comments that I recall being

[00:52:50] Speaker 05:
related to the NOD issue were all about specificity, not so much that someone couldn't respond to the form by saying all, or that there was a box missing, like there is on the VA form 9, that says all.

[00:53:03] Speaker 05:
In fact, frankly, when I heard the argument, I thought there was a box on this form that said all.

[00:53:08] Speaker 05:
And I can say that, although I am not the secretary, or even with the department, the secretary has been made aware of the desire by at least certain people to have a box on the form.

[00:53:17] Speaker 05:
And I don't think even the court needs

[00:53:20] Speaker 05:
Say any more about that, although the court is free to, obviously.

[00:53:23] Speaker 02:
Well, except that if this is a form that veterans, often uncounseled, will be reading, and it is not, I would say, apparent on the face of the form that that would suffice.

[00:53:35] Speaker 02:
The form tends to suggest that something more is required.

[00:53:40] Speaker 02:
Hence my question, if all would suffice, does the VA have to go through notice and comment rulemaking to change the form?

[00:53:48] Speaker 02:
Was this form specifically adopted as part of the regulation, or was there a kind of incorporation by reference of a form?

[00:53:58] Speaker 05:
Yeah, I'm going to stand here and say I don't think we need to do any further rulemaking on this to change the form.

[00:54:04] Speaker 05:
And I'll also refer back to, I think maybe Judge Crost mentioned this reg as well, 1924B.

[00:54:13] Speaker 05:
The intent of this regulation with respect to the NOD is if the VA thinks that they don't understand the response,

[00:54:19] Speaker 05:
It's incumbent upon the VA to go back to the claimant and clarify that.

[00:54:24] Speaker 05:
So that if somebody puts all on, that's going to be good enough.

[00:54:28] Speaker 05:
And if the RO has some concern about that, it's up to the RO to go back to the individual and say, what do you mean by all?

[00:54:34] Speaker 05:
Which I hope would not be a question ever asked.

[00:54:36] Speaker 05:
But if it was, that would be the mechanism by which they would do it.

[00:54:40] Speaker 01:
No, I know.

[00:54:40] Speaker 01:
But Judge Taranto's point is obviously that that's fine in terms of the person that's aggressive enough

[00:54:46] Speaker 01:
exhausted enough to just write everything across the form, but the concern is that somebody seeing this form will just get discouraged and not appreciate that all would suffice.

[00:54:57] Speaker 01:
So that's the point I think we're talking about.

[00:55:00] Speaker 05:
Well, I mean, I can say this, Your Honor, point taken about if there isn't a box on there for all, I don't think that, but I can answer the question standing here as to whether or not

[00:55:10] Speaker 05:
That would require an additional rulemaking.

[00:55:12] Speaker 05:
Maybe it would.

[00:55:13] Speaker 05:
It sounds like we wouldn't get any opposition if we did it.

[00:55:18] Speaker 03:
Let me ask you some questions about your opponent's briefs.

[00:55:22] Speaker 03:
The American Legion contends that the final rule abandons the VA's ability to adjudicate benefits for any medical condition that's not specifically identified and not related to the claims file.

[00:55:36] Speaker 03:
Is that correct?

[00:55:37] Speaker 05:
That's their contention, as I understand it.

[00:55:40] Speaker 03:
The American Legion claims that the final rule will likely have a disproportionate impact on the most disadvantaged vets, the blind, the elderly, the poor, and will save the VA no work.

[00:55:57] Speaker 03:
That's a quote from them.

[00:55:59] Speaker 03:
They say the VA must still review informal submissions as they are received, and as consequence,

[00:56:09] Speaker 03:
this workload is going to be the same.

[00:56:11] Speaker 03:
Is that correct?

[00:56:12] Speaker 05:
That I understand is their contention.

[00:56:14] Speaker 05:
I understand it's their contention.

[00:56:15] Speaker 05:
It's incorrect as a matter of common sense and I'll explain why.

[00:56:20] Speaker 04:
Okay, go ahead.

[00:56:20] Speaker 05:
You have a system in which a hundred percent of the claimants submit forms, submit an application on pieces of paper and they look a hundred different ways.

[00:56:32] Speaker 05:
You impose a system in which you say please just put the same information or

[00:56:36] Speaker 05:
as maybe as noted earlier, and if not, it's in the brief, maybe even less information than you used to have on this form.

[00:56:42] Speaker 05:
So we can identify it when it comes in.

[00:56:44] Speaker 05:
Oh, that's a claim.

[00:56:45] Speaker 05:
That's an NOD.

[00:56:46] Speaker 05:
That's a claim.

[00:56:48] Speaker 05:
If you now have 10% of people who are no longer following that practice, you have 90% that are.

[00:56:56] Speaker 05:
You have that much less work to do when you're going through.

[00:56:59] Speaker 05:
So yes, the VA continues to go through all the submissions to try to determine whether there is a potential claim there.

[00:57:05] Speaker 05:
90% of them are obvious on their face that they are claims and no time is being wasted trying to decipher, analyze, interpret.

[00:57:12] Speaker 05:
And although that function might still exist, it's now limited to those 10% or less, and as we expect, significantly less, of forms that, for whatever reason, are not being submitted through the forms.

[00:57:28] Speaker 05:
There's also other premises undergirding the attack on the forms, which I just a little

[00:57:34] Speaker 03:
Well, I have one more I want to... Okay.

[00:57:37] Speaker 03:
And that is, again, the American Legion, later in their brief, restates that argument in a different form, talking about disproportionate impact on veterans who are blind or have had mental incapacity.

[00:57:54] Speaker 03:
And I was wondering if that was actually correct, if the VA has some sort of

[00:58:02] Speaker 03:
statistics on who uses the informal claims process?

[00:58:07] Speaker 05:
Well, prior to this reg change, we didn't really track that very much.

[00:58:13] Speaker 05:
Now, we have since the reg change.

[00:58:15] Speaker 05:
That would obviously lead to a question about what we now know, which isn't in the record.

[00:58:19] Speaker 05:
But yeah, prior to the reg change, we wouldn't.

[00:58:22] Speaker 05:
But subsequently, frankly, we don't understand that argument.

[00:58:28] Speaker 05:
The rule change simply says,

[00:58:31] Speaker 05:
put the same information or less on a form or in a phone call or on a computer.

[00:58:37] Speaker 05:
So the argument that someone who has trouble seeing or whatever, that would apply to the old rule as well.

[00:58:43] Speaker 05:
They would have trouble writing something down on a piece of paper or doing whatever.

[00:58:47] Speaker 05:
All we're doing is saying if you use this piece of paper, we can find it a lot quicker.

[00:58:51] Speaker 01:
So what happens if I submit a piece of paper the way one could under the old system and it's just a letter and it's the same?

[00:58:58] Speaker 01:
Do they go back, they take that, they call you and they say... They send you the application package under 5102A or B. And they explain to you that that's what you have to do.

[00:59:08] Speaker 01:
To fill out this form and... So do you understand, am I understanding correctly, part of the concern raised by the other side is not only the adversity faced by having to do the form itself, but also the question of the effective date of the

[00:59:23] Speaker 01:
of the amount if you are ultimately awarded.

[00:59:27] Speaker 01:
So I just want to make sure I'm understanding.

[00:59:29] Speaker 01:
So their concern is you send a letter now, and it's perfected through the process.

[00:59:34] Speaker 01:
But if you ultimately are successful, you'll get time back.

[00:59:39] Speaker 01:
You'll get back pay from the initiation of that letter.

[00:59:43] Speaker 01:
And now they're saying that you will only get back pay from the initiation of that form that's been sent to you as a result of that letter.

[00:59:50] Speaker 05:
Or the phone call or the form that you've got from

[00:59:53] Speaker 05:
the VSO or the, the premise is that folks won't file direction.

[00:59:59] Speaker 05:
So the premise is that the old rule, people will ignore the new rule and simply continue to file the old rule and they will be putting themselves at risk for some sort of deprivation of effective date benefits because of the way, well, their main argument is an attempt under Chevron step one to stop the rulemaking by arguing that 5102C

[01:00:22] Speaker 05:
prevents the secretary from identifying what is required for purposes of an application, which would be odd given that if 5102C did that, then why would Congress have retained the authority for the secretary to do what he does in 5101, which is to specifically identify the form.

[01:00:41] Speaker 05:
So that's the main argument.

[01:00:44] Speaker 05:
When we get into the second part of it, it becomes sort of where is it fair to draw the line by requiring rather than

[01:00:53] Speaker 05:
not requiring, and I think we've already discussed the answer to that as well, without requiring, then nobody will do it and there is no efficiency gain when we really all agree that something needs to be done.

[01:01:04] Speaker 05:
And we have a fail safe step for those people who for whatever reason don't bother when they get a claim, a new claimant gets a claim.

[01:01:12] Speaker 05:
I mean, when a new claimant gets a claim, their belief is that that claimant is going to do what the old rule required and not bother to contact VA when they weren't a part of that old rule system.

[01:01:22] Speaker 05:
Why would they assume that they can do something that they were never a part of?

[01:01:27] Speaker 05:
The new claimant's going to call a VA or go on the website and say, how do I file a claim?

[01:01:33] Speaker 05:
And there are your three options to file these intents to file or go ahead and file your application, which most people actually do.

[01:01:39] Speaker 05:
They actually file the complete application.

[01:01:43] Speaker 05:
So people generally file a direction in life.

[01:01:45] Speaker 05:
You put a stop sign on a street.

[01:01:47] Speaker 05:
After a day or two, people are going to stop there.

[01:01:50] Speaker 05:
these kinds of thought processes and the suggestion that the veterans are somehow incapable of following these simple changes to the system, I don't think it's necessarily correct.

[01:02:03] Speaker 03:
Am I correct that in some circumstances where a vet is safe blind, that the VA will interview and fill in the form over the phone

[01:02:20] Speaker 03:
for that veteran.

[01:02:22] Speaker 05:
All veterans.

[01:02:23] Speaker 05:
That's eligible for every veteran, even.

[01:02:25] Speaker 03:
But that's available for that person.

[01:02:29] Speaker 05:
Yes, that's one of the options on the three.

[01:02:32] Speaker 05:
Intent to file.

[01:02:32] Speaker 05:
In the proposed rulemaking that you filled out online, the intent was to really become aggressive about standardization.

[01:02:44] Speaker 05:
Viable comments were raised during the rulemaking, and VA responded by

[01:02:50] Speaker 05:
jiggering the first step in allowing not only the submission by paper, but the submission by phone call, and of course to continue with the submission by electronic communication.

[01:03:02] Speaker 05:
So taking advantage of all of our available technologies, the veteran is, we think, in a much better position to communicate and intend to file a claim with the VA than they used to.

[01:03:15] Speaker 05:
And in fact, don't have to even

[01:03:18] Speaker 05:
identify at that stage what's necessarily wrong with them.

[01:03:20] Speaker 05:
They just need to know, am I asking for a compensation payment or for a pension?

[01:03:25] Speaker 03:
So what happens when the counselor on the V.A.

[01:03:29] Speaker 03:
end of the phone line gets it wrong in completing the form?

[01:03:34] Speaker 05:
That would be an as-applied situation, Your Honor.

[01:03:37] Speaker 05:
The rule would, this Court would, or the Veterans Court more likely would step in and say, you did something wrong on the facts of that case.

[01:03:43] Speaker 05:
And that's true of all of these questions about Roberson and Comer.

[01:03:47] Speaker 05:
Where in this regulation do we say or walk away from Comer?

[01:03:52] Speaker 05:
I think we read through language in these regulations earlier, which talk about, you know, what the VA is going to do and all of the... Can I ask you a question?

[01:03:59] Speaker 01:
Just to be clear, so we've covered the NOD issue.

[01:04:02] Speaker 01:
We've covered this intent to file and form a claim issue.

[01:04:04] Speaker 01:
So now are you moving to what's kind of the third issue, which is what you say and whether the VA has to investigate further if it

[01:04:13] Speaker 01:
Another claim is percolating that.

[01:04:15] Speaker 01:
Is that what you're going to get into?

[01:04:17] Speaker 05:
To be perfectly honest, that we can talk about.

[01:04:20] Speaker 05:
I'm not sure I intended to that.

[01:04:22] Speaker 05:
I was kind of using it as an example of an overall theme.

[01:04:25] Speaker 05:
But I'm happy to talk about that.

[01:04:28] Speaker 01:
Well, could you talk about it?

[01:04:29] Speaker 01:
I'm a little unclear on how the new system compares to the old system in terms of what you think the VA's obligation is if you file a claim and you're talking about is

[01:04:41] Speaker 01:
Judge Wallach said in his hypothetical, your knee, but somehow in there, ingrained in the evidence that's presented, is some problem with your elbow.

[01:04:50] Speaker 05:
I think that the difference between the new system and the old system is zero.

[01:04:55] Speaker 05:
There is no difference.

[01:04:57] Speaker 05:
There is no attempt by this regulation to constrain what the VA is required to do under existing regulations.

[01:05:03] Speaker 05:
If there were, you would see instead of the regulations that are listed here that are being modified, changes to

[01:05:11] Speaker 01:
Well, the suggestion is that under Robeson, if someone's reading of Robeson, in that circumstance, if there's evidence lurking in the record somewhere, it's up to the VA to develop that evidence.

[01:05:22] Speaker 01:
And presumably, that would be consumed in the initial claim itself, including the effective dates and so forth.

[01:05:30] Speaker 01:
I don't know if you were in agreement that that's what the VA did historically or is required to do historically under Robeson in those cases.

[01:05:40] Speaker 05:
Well, certainly.

[01:05:41] Speaker 05:
And I'll clarify one comment that was made about Roberson.

[01:05:44] Speaker 05:
And TDIU VA considers to be part of a claim.

[01:05:48] Speaker 01:
So that, and that's actually- But do you think, does the VA read Roberson is going beyond that in terms of any other issues or evidence that might be lurking in that claim?

[01:05:57] Speaker 05:
We do after we read Comer.

[01:06:02] Speaker 05:
So going into Comer, we had a more limited view of Roberson.

[01:06:07] Speaker 05:
Coming out of Comer, we had a different view of Roberson.

[01:06:11] Speaker 05:
And there is no change to Comer or the requirements imposed by Comer in this case.

[01:06:17] Speaker 05:
But Comer, as this court has recognized numerous times since, is not unlimited.

[01:06:22] Speaker 05:
And Robinson, the court warned that, we also do not suggest that under the regulations, the veteran is entirely relieved of his or her obligation to raise issues in the first instance before the VA.

[01:06:32] Speaker 05:
So to answer your question, Judge Pros, Chief Judge Pros, and we identify this, I think, in some detail in our brief.

[01:06:40] Speaker 05:
What VA does when they get a claim is they thoroughly examine that claim and try to figure out what all the permutations of that claim might be to include secondary service connection, related claims, misdescribed claims.

[01:06:51] Speaker 05:
Whatever the evidence suggests in the development of that claim, the VA considers that part of the claim.

[01:06:55] Speaker 05:
And that's what this regulation continues to uphold, frankly, by not saying that it doesn't.

[01:07:02] Speaker 05:
What is, I think, the genesis of a lot of the discussion about this was a comment in response to some

[01:07:09] Speaker 05:
other comment that the VA made in the preamble at 13 and 14 of the JA that says, along the lines of, of course, the VA doesn't have a responsibility to identify claims that aren't raised.

[01:07:22] Speaker 05:
Now, and that's consistent with what we understand.

[01:07:25] Speaker 05:
I just read in Robinson and Smerage, which preceded that, which also recognized that this is a non-adversarial system.

[01:07:33] Speaker 05:
And everyone likes to talk about how that it's, you know, that the VA has to play

[01:07:39] Speaker 05:
The VA is different in approaching the claimants than maybe other agencies or other entities are.

[01:07:44] Speaker 05:
But as the Veterans Court, I think keenly noted in the Ingram case, that doesn't mean that there's not responsibilities left with the claimant.

[01:07:53] Speaker 05:
And Congress agrees in retaining 38 USC 5107, which provides ultimate responsibility for the presentment of the claim as well as the submission of the supporting evidence with the claimant, not with the VA.

[01:08:07] Speaker 05:
We have to operate in a universe in which, in order for the VA to help the claimant, the claimant has to help the VA.

[01:08:14] Speaker 05:
And what we're doing here is trying to get, spur, ask a question at the early stage of the claimant that might cause the claimant to think, hmm, maybe this is what's wrong with me.

[01:08:24] Speaker 05:
Or if I say it this way, we can understand everything better, and the ball gets rolling quicker, the bus goes down the road quicker, the claims get flowing faster.

[01:08:32] Speaker 05:
But it is, in a non-adversarial process, both sides coming together to work together, like a dance.

[01:08:39] Speaker 05:
They have to work together.

[01:08:41] Speaker 05:
And all the VA is saying here is, please, help us help you.

[01:08:45] Speaker 05:
We want you to tell us what's wrong with you.

[01:08:47] Speaker 05:
During the course of the development, as this court has dealt with in previous cases, if somebody, like at a board hearing where, excuse me, at a regional office hearing where the regional office judges are supposed to ask questions, and they've come up and they say, hey,

[01:09:00] Speaker 05:
Wait a minute, what about this other thing?

[01:09:02] Speaker 05:
Did you ever think about maybe making a claim for that?

[01:09:04] Speaker 05:
Yeah, that's required.

[01:09:06] Speaker 05:
We're not talking about, in this case, the authority, I mean the development part.

[01:09:14] Speaker 05:
All we're talking about here is presentment.

[01:09:17] Speaker 02:
If you give it to us on this form.

[01:09:18] Speaker 02:
I asked earlier about my understanding, which made

[01:09:25] Speaker 02:
exactly the distinction that you're making.

[01:09:28] Speaker 02:
So I guess I want to be sure that I'm understanding it right.

[01:09:32] Speaker 02:
That there is no denial within the regulations or by you standing here today that every bit of evidentiary development that took place before these regulations still took place under the general obligation to develop evidence still has to take place

[01:09:55] Speaker 02:
The only question we can argue, I guess, about or think about whether this was a change or not is that if you develop evidence about the elbow in a claim that is filed about the knee and the elbow problem is truly unconnected to the knee, then

[01:10:18] Speaker 02:
the VA is saying, you're going to have to file a new claim on that.

[01:10:22] Speaker 02:
We're not going to give you benefits about the elbow from the effective date of the knee claim.

[01:10:27] Speaker 02:
Is that what we're talking about?

[01:10:29] Speaker 05:
And that's the way it used to work, is during the development of a claim, if a completely separately related claim was suddenly on the stage such that the RO was in a position to say, wait a minute, did you realize you have a shrapnel wound?

[01:10:49] Speaker 05:
that always required a separate claim.

[01:10:50] Speaker 05:
It didn't become part of the shoulder claim or the PTSD claim.

[01:10:55] Speaker 05:
Well, I mean, the PTSD and those kinds of things, they can sometimes be.

[01:10:58] Speaker 05:
But I think to answer your question, Judge Trano, yeah, the old system would have always required a separate claim.

[01:11:06] Speaker 05:
This is, we want to move over to the NOD stage for a second just to answer your question about how the regulations work that you had an exchange with Mr. Carpenter at the end about

[01:11:17] Speaker 05:
the value of having this two-stage appeal process.

[01:11:21] Speaker 05:
One of the values is that, and it's been going on forever, when the VA receives an NOD after a decision, and they do, under regulation, have the requirement to go through and determine, well, based upon that NOD, am I going to change my mind?

[01:11:37] Speaker 05:
I mean, the hypothetical always is, you were denied benefits because the DIC benefit, because you couldn't establish you were married, an individual,

[01:11:46] Speaker 05:
replies with an NOD saying, you never asked me for my marriage certificate.

[01:11:49] Speaker 05:
Here it is.

[01:11:50] Speaker 05:
And that case doesn't get appealed.

[01:11:52] Speaker 05:
That case, the benefits get granted.

[01:11:54] Speaker 05:
And that's the purpose, to clarify obvious errors that the RO might have made.

[01:11:59] Speaker 05:
The NOD either can point it out through an argument or the submission of evidence at that stage and thereby eliminate any need to go further before the board or whatnot.

[01:12:09] Speaker 05:
It's a very valuable step.

[01:12:11] Speaker 05:
And I can see a difference.

[01:12:13] Speaker 05:
from an advocate's perspective in which when he comes into the process, that step's already passed.

[01:12:18] Speaker 05:
And so there's a question about why was it even necessary.

[01:12:20] Speaker 05:
But from an adjudicator's perspective, the possibility of ending it early is a very legitimate basis to have the two-step approach.

[01:12:29] Speaker 05:
And there's nothing I heard here today to suggest that that should be removed.

[01:12:32] Speaker 05:
But the idea would be when that comes in and the NOD says, yeah, I know you did this with my shoulder, but you know, I also have this knee thing or whatever, then we get into this whole

[01:12:44] Speaker 05:
At that stage, what happens is it goes back to the RO, and the RO has to now adjudicate that new issue that's been identified as a separate claim.

[01:12:52] Speaker 05:
And if it happens later on in the process, after a statement of the case has been issued, regulations plainly provide that any time a new issue is raised, it's got to be the subject of a supplemental statement of the case, which then has to go back to preserve this idea of two levels of review before the RO and the board.

[01:13:07] Speaker 05:
There are lots of measures built into the system to try to

[01:13:10] Speaker 05:
help the veteran when an issue may not have been identified initially, but then somehow comes up during the process, VA is encouraged to help the veteran explore those issues, and there are mechanisms by which they are dealt with.

[01:13:24] Speaker 05:
But all we're saying is that when you get to that point where something's a new claim, just use this form so that we can tell, amidst all the other correspondence we get, this is the claim.

[01:13:34] Speaker 05:
And while I'm thinking of it in the NOD process about

[01:13:37] Speaker 05:
those forms in the NOD and filling them out, remember, the regulation plainly says those forms are attached to the final decision.

[01:13:45] Speaker 05:
So the person gets them, they're right there for them.

[01:13:48] Speaker 05:
I mean, it couldn't be more convenient to say, I disagree, send it back.

[01:13:56] Speaker 05:
Sorry about that side, but there was a point about that.

[01:14:00] Speaker 05:
And so, and if the court, I mean,

[01:14:04] Speaker 05:
Like I think we asked, or Judge Wallach asked earlier, whether it was rational to draw the line where we did, where we're trying to encourage the submission of these things, as opposed to just not encouraging them.

[01:14:13] Speaker 05:
I mean, the system, any reasonable person, I think, would say that the system would work.

[01:14:18] Speaker 05:
I think the system is working.

[01:14:19] Speaker 05:
And we don't see any statutory basis by which this thing should fall.

[01:14:25] Speaker 01:
Well, based on that, and I don't think you've already covered this, but Mr. Carpenter made the statutory argument with respect to the NOD.

[01:14:33] Speaker 01:
in terms of 7104 and 5.

[01:14:35] Speaker 01:
Galagos.

[01:14:35] Speaker 01:
Just saying, yeah.

[01:14:37] Speaker 05:
Galagos, this court's already said that there's a gap to be filled with respect to what is required in NNOD.

[01:14:45] Speaker 05:
In Galagos itself, the issue is whether there should be some sort of intent somehow.

[01:14:49] Speaker 05:
All we're saying here is, tell us.

[01:14:51] Speaker 05:
And as the regulation provides, it's like, tell us.

[01:14:55] Speaker 05:
Are you appealing your shoulder?

[01:14:56] Speaker 05:
We're not asking for diagnostic codes.

[01:14:58] Speaker 05:
We're not asking for medical opinions.

[01:15:00] Speaker 05:
Is it your shoulder?

[01:15:00] Speaker 05:
Or is it your denial of service connection?

[01:15:03] Speaker 05:
Those are very broad, top-level characteristics.

[01:15:07] Speaker 05:
Or as we discussed, is it everything?

[01:15:10] Speaker 05:
Is it all?

[01:15:12] Speaker 05:
The VA is in the business of providing claimants benefits.

[01:15:15] Speaker 05:
They're not in the business of depriving them or making it more difficult.

[01:15:18] Speaker 05:
But they are in the business here of trying to figure out a way to get people's benefits to them quicker than has been in the past.

[01:15:23] Speaker 05:
And we think we came up with a really good way to take advantage of basically the advances that have taken place in the last 100 years since some of these old regulations were written

[01:15:32] Speaker 05:
And we want to take advantage of them.

[01:15:34] Speaker 05:
And we are fully confident that the veterans community as a whole is willing to embrace this, and frankly already has.

[01:15:40] Speaker 05:
And we ask that the court uphold the rulemaking.

[01:15:45] Speaker 01:
Thank you.

[01:15:51] Speaker 01:
All right.

[01:15:52] Speaker 01:
We went way over, but why don't we give you back each three minutes, but hopefully you won't need to use them.

[01:16:01] Speaker 00:
Thank you very much.

[01:16:03] Speaker 00:
The VA has now conceded that under the new system, they must still go through all the informal submissions that come into the building.

[01:16:12] Speaker 00:
There's no dispute about that.

[01:16:13] Speaker 02:
Just a much smaller number, they hope.

[01:16:17] Speaker 00:
They argue that the number would be smaller, but there is absolutely no evidence in the rulemaking of why that would be the case.

[01:16:24] Speaker 00:
In fact, everything they say about this claim and how easier they are to use will suggest that any capable applicant who can actually be expected to use those forms will use them anyways.

[01:16:34] Speaker 00:
They will choose to use them.

[01:16:36] Speaker 00:
They have not been able to articulate a sensible reason in the rulemaking or today as to whether these applicants would decide to opt out of the system.

[01:16:44] Speaker 00:
That's not true.

[01:16:45] Speaker 03:
Mr. Hockey said

[01:16:47] Speaker 03:
that the idea is to make it mandatory to encourage usage, and that without that mandate, that the VA believes that it wouldn't be used.

[01:17:01] Speaker 00:
No, that's right.

[01:17:02] Speaker 03:
So that's not irrational.

[01:17:03] Speaker 03:
He identified a rational argument.

[01:17:07] Speaker 00:
I think that, I'm sorry, to be clear, they've made that assertion.

[01:17:10] Speaker 00:
What they've not said, what they've not done is provided any evidence of why any capable applicant would decide

[01:17:17] Speaker 00:
not to use the new forms or not to apply electronically and instead to submit an informal submission.

[01:17:24] Speaker 00:
All he's saying is, well, you know, what we are trying to do is just reward veterans who don't want to follow the rules.

[01:17:31] Speaker 00:
No, all we are doing is we are

[01:17:34] Speaker 00:
given an understanding and taking account of the unique predicament of many of the veterans.

[01:17:38] Speaker 00:
What we are talking about is elderly veterans who have been working with the VA system in the past and in the past they initiated their claims through an informal submission.

[01:17:48] Speaker 00:
Now they may try this again when their disability worsens or for some reason they have a new disability they want to apply for.

[01:17:57] Speaker 00:
They will send in the same informal claim.

[01:17:59] Speaker 00:
The VA will take however long it takes the VA to respond

[01:18:03] Speaker 00:
And then, because that informal claim did not establish an effective date, the veteran will be out a significant amount in benefit.

[01:18:11] Speaker 01:
Well, isn't there some time limit in the regulations with respect to how quickly the VA does have to respond and send the forms out?

[01:18:18] Speaker 01:
Is there another time frame in the regulations?

[01:18:19] Speaker 00:
I don't believe there's a regulation as to how quickly the VA must respond with respect to furnishing application forms under 51 or 2A, which is what they would do in this case.

[01:18:32] Speaker 00:
That is part of the problem.

[01:18:33] Speaker 00:
And even if there were a time limitation, and I'm pretty confident there isn't such a limitation, the problem is that an entire period of benefits would be lost.

[01:18:45] Speaker 00:
This would be a different case if, in fact, requiring the use of force would actually cause more applicants to use those forms.

[01:18:55] Speaker 00:
But as they explain, and we agree,

[01:18:59] Speaker 00:
Capable applicants already have every incentive to use these new forms.

[01:19:02] Speaker 00:
What we're talking about is what to do with folks who fall through the cracks and cannot be expected to use these forms, whether because they're elderly, disabled, have PTSD, they're homeless, their predicament are unique.

[01:19:15] Speaker 00:
And they are saying they're on their own.

[01:19:17] Speaker 00:
We are saying, no, their effective date, as it has been the case for the last 80 years, should be fixed according to the intent of the applicant and when the applicant first manifested that intent.

[01:19:27] Speaker 01:
Thank you.

[01:19:36] Speaker 06:
Judge Wallach, to answer your earlier question about how do you set the balance, this court in the DAV case at 1348 specifically and explicitly said only Congress can set the balance between the efficiency of the appeal process and the veterans due process rights, and those are the words in there.

[01:19:57] Speaker 06:
So that answers, I believe, your question.

[01:20:00] Speaker 06:
It's not up to the secretary to decide

[01:20:02] Speaker 06:
his efficiency is more important than a certain right.

[01:20:05] Speaker 06:
It is Congress, and Congress has set that in the process in 7105, which again, Mr. Hoffman... So rational basis has no bearing on this?

[01:20:18] Speaker 06:
I hesitate to say rational when we're talking about the VA process.

[01:20:22] Speaker 06:
I refer you to the court's own language of who sets the balance.

[01:20:29] Speaker 06:
The balance here, we've heard the balance hasn't been changed.

[01:20:32] Speaker 06:
Well, the balance has been changed.

[01:20:34] Speaker 06:
If you do not put an issue on the form, the NOD form, it is explicit that issue is waived.

[01:20:43] Speaker 06:
It doesn't say unless you write all in the box.

[01:20:48] Speaker 06:
So again, Mr. Carpenter's covered issues, claims, decisions.

[01:20:53] Speaker 06:
I struggle with those.

[01:20:54] Speaker 06:
I can't expect a veteran to do anything else.

[01:20:57] Speaker 06:
Mr. Hockey's mentioned all they've done in 7105 is fill a gap.

[01:21:01] Speaker 06:
What's the gap?

[01:21:02] Speaker 06:
There is no gap.

[01:21:03] Speaker 06:
It is explicit.

[01:21:05] Speaker 06:
NOD, statement of the case, that explains the issues.

[01:21:09] Speaker 06:
It must address each issue.

[01:21:11] Speaker 06:
It says each issue.

[01:21:13] Speaker 06:
Then the veteran, if this negotiation is working out, does not work, gets to pick and must identify the issues to appeal.

[01:21:23] Speaker 06:
Where's the gap?

[01:21:24] Speaker 06:
I have also not heard any response to all of ours' argument about the factual basis.

[01:21:33] Speaker 06:
These forms are supposed to be to improve the process, which we hope they do, regardless of the form they come out.

[01:21:40] Speaker 06:
But there is no evidence that they do.

[01:21:43] Speaker 06:
And indeed, all we've heard is, well, we're going to try it and see what they do, and then we're going to send them back.

[01:21:48] Speaker 06:
Where is the evidence?

[01:21:50] Speaker 06:
The only evidence is in the board's reports and the history over 20 and 30 years, not some truncated little pilot test at a facility where they found they were cooking the books.

[01:22:03] Speaker 02:
And I was a nuclear scientist.

[01:22:05] Speaker 02:
Can I ask you a question?

[01:22:06] Speaker 02:
And forgive me about the notice of disagreement.

[01:22:10] Speaker 02:
Was that one of your issues or not?

[01:22:12] Speaker 02:
Yes.

[01:22:12] Speaker 02:
OK.

[01:22:12] Speaker 02:
So were there comments during the rulemaking process that called to the VA's attention the absence and criticized said absence of a all box or something substantively equivalent to what I just asked?

[01:22:34] Speaker 06:
that veterans justice group criticized the need for specificity and that we pointed out that under the old rules and then current rules all you had to say was we want to appeal them all.

[01:22:47] Speaker 06:
It's a notice.

[01:22:48] Speaker 06:
We argued the notice issue.

[01:22:49] Speaker 06:
And this issue has been argued many, many times before your court as well as below about what the NOD was.

[01:22:55] Speaker 06:
But we did specifically in our comments to the rulemaking and I believe

[01:23:03] Speaker 06:
I don't have them with me, but we did in the Veterans Justice Group initial comments to raise the issue of the specificity.

[01:23:13] Speaker 06:
One last point.

[01:23:14] Speaker 03:
Well, I want you to finish the sentence.

[01:23:17] Speaker 06:
I was a nuclear submarine sailor.

[01:23:20] Speaker 06:
We had a rule called the 50-50-90 rule.

[01:23:23] Speaker 06:
And we used it, although we had procedures and checklists well beyond what we're talking about here.

[01:23:30] Speaker 06:
If it's a 50-50 chance,

[01:23:32] Speaker 06:
A nuclear sailor would get it wrong 90% of the time.

[01:23:36] Speaker 06:
I think that the Army and the Air Force is in similar statistical groupings.

[01:23:41] Speaker 06:
We have to look at the practical aspects of this rulemaking.

[01:23:48] Speaker 06:
And again, if the forms are meant to increase efficiency, it needs not generate more inefficiency than that.

[01:23:57] Speaker 06:
And we don't know what it will.

[01:23:59] Speaker 06:
but I would apply that rule to the best that you can.

[01:24:02] Speaker 06:
Thank you very much.

[01:24:03] Speaker 06:
Thank you.

[01:24:12] Speaker 04:
I'd like to start with Mr. Hockey's last comment about all the veteran needs to do is to say on the form I disagree.

[01:24:19] Speaker 04:
With all due respect to my colleague Mr. Hockey, there is no place on the VA's form that says I disagree.

[01:24:26] Speaker 04:
The other thing that the

[01:24:27] Speaker 04:
VA did not do was to respond as they did not in their rulemaking as or explain why this form is mandatory.

[01:24:37] Speaker 04:
Why must every veteran use this form?

[01:24:41] Speaker 04:
Why can't a veteran continue as they have for more than 60 years to simply express in writing a desire to appeal and a disagreement with the decision made by the VA?

[01:24:53] Speaker 04:
I'd like to also talk to the court about the

[01:24:56] Speaker 04:
reference made by Mr. Hockey to the Robinson decision.

[01:25:00] Speaker 04:
It's important for this court to recognize that the Robinson decision had nothing to do with issues identified in a notice of disagreement.

[01:25:08] Speaker 04:
The reason for that is, is that issues were never required to be identified in a notice of disagreement until this rulemaking.

[01:25:16] Speaker 04:
Robinson was talking about issues that were identified in either a VA-9 or in arguments to the court.

[01:25:24] Speaker 04:
on appeal from a decision of the Veterans Court.

[01:25:28] Speaker 04:
So the reliance upon Robinson is not appropriate in this rulemaking case.

[01:25:34] Speaker 04:
Additionally, the government's reliance upon Galeos is not appropriate.

[01:25:39] Speaker 04:
Galeos was a case that said that there was ambiguity in the statute because the statute does not define a notice of disagreement.

[01:25:49] Speaker 04:
The definition of a notice of disagreement has nothing to do with this rulemaking.

[01:25:54] Speaker 04:
This rulemaking is about the mandatory use of a form that is not required by the plain language of the statute.

[01:26:02] Speaker 04:
Nothing in the statute requires that a form be filed.

[01:26:08] Speaker 04:
All that is required by the statute is that the VA be put on notice that the veteran has a disagreement with the decision, which gets me back to the point of why it is important for the VA to define what they mean.

[01:26:23] Speaker 04:
There is nothing in this regulation that defines an issue.

[01:26:27] Speaker 04:
There is no other VA regulation that defines what an issue is.

[01:26:32] Speaker 04:
How is a veteran or a veteran's representative supposed to complete this form without some idea as to what is meant when it says on the form under block 10, a specific issue of disagreement?

[01:26:52] Speaker 04:
Block B is area of disagreement.

[01:26:56] Speaker 04:
Neither of those terms are defined.

[01:26:59] Speaker 04:
There is a listing under the B section with an all-encompassing other as the fourth option.

[01:27:05] Speaker 03:
Well, it says other.

[01:27:06] Speaker 04:
Please specify it.

[01:27:07] Speaker 04:
I'm sorry.

[01:27:08] Speaker 04:
Yes, it does.

[01:27:08] Speaker 04:
It says say please specify it.

[01:27:12] Speaker 04:
It is the position of NOVA that this Court should reject the rulemaking as overreaching

[01:27:18] Speaker 04:
and as not consistent with the plain language of 7105.

[01:27:23] Speaker 04:
Questions for the questions from the court.

[01:27:25] Speaker 01:
Thank you very much.