[00:00:27] Speaker 01:
Okay, the next case is number 15, 7081, Disabled American Veterans and Veterans of Foreign Wars of the United States against the Secretary of Veterans Affairs, Ms.

[00:00:40] Speaker 01:
Hines.

[00:00:41] Speaker 03:
Thank you very much, Your Honor.

[00:00:42] Speaker 03:
May it please the Court, my name is Dori Hines and I'm appearing today on behalf of DAV and VFW with respect to the Rules Challenge.

[00:00:50] Speaker 03:
I'd like to address three issues.

[00:00:53] Speaker 03:
One, with respect to the effective date for

[00:00:57] Speaker 03:
non-form initial submissions, the second, the prohibition on tolling for non-form NODs, and the third, the increased level of specificity now required in the Nod.

[00:01:12] Speaker 03:
I'd like to go to the second issue first because it was addressed in the questioning in the last case.

[00:01:19] Speaker 03:
Now, with respect to tolling, tolling was addressed in our brief and we did argue that the

[00:01:27] Speaker 03:
the new rule 38 CFR 2201A5 is invalid because it prohibits tolling for a certain class of veterans, and that is veterans who do not submit the NOD on the form.

[00:01:44] Speaker 03:
This regulation prohibits tolling, any type of tolling or an extension for them.

[00:01:50] Speaker 02:
Does it do so expressly, or are you simply saying that because it doesn't provide for tolling?

[00:01:54] Speaker 03:
It does so expressly.

[00:01:56] Speaker 03:
And it does so expressly for that particular group of veterans, those that don't submit the form as the NOD.

[00:02:03] Speaker 00:
I took the government saying just a few minutes ago that, yes, the rule says a claimant won't get automatic tolling by virtue of filing a non-standard form NOD.

[00:02:18] Speaker 00:
But the rule doesn't additionally block and prevent any possibility of equitable tolling.

[00:02:26] Speaker 00:
a little bit equivocal about whether equitable tolling is something that would be possible for a claimant under those circumstances.

[00:02:34] Speaker 00:
But at least in terms of equitable tolling, it is his understanding of the rule that on its face doesn't bar the possibility of equitable tolling for a claimant who is in the circumstances of having filed a nonstandard form NOD.

[00:02:52] Speaker 03:
And that may be.

[00:02:53] Speaker 03:
That hasn't been the government's position before.

[00:02:55] Speaker 03:
In fact, when we briefed this issue, the government did not respond at all to our argument about Henderson and the applicability of Henderson.

[00:03:04] Speaker 03:
The regulation does say, though, that the filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing the Notice of Disagreement.

[00:03:20] Speaker 03:
And we think that's pretty clear.

[00:03:22] Speaker 03:
that there is an express prohibition on tolling, and we think that's invalid.

[00:03:26] Speaker 02:
If the government is not... Now, that assumes that there's no forms ever filed rather than a form just filed late, right?

[00:03:34] Speaker 03:
That assumes.

[00:03:35] Speaker 03:
That is the case for a veteran who does not submit the nod on the form.

[00:03:40] Speaker 03:
That's correct.

[00:03:41] Speaker 03:
And that's our challenge, is for the veteran that does not submit the form, that there should be some possibility of tolling.

[00:03:50] Speaker 03:
or of extension or some way if the veteran does not do that to get that time period.

[00:03:55] Speaker 03:
We think that's consistent with Henderson.

[00:03:58] Speaker 03:
Mr. Hockey is correct.

[00:04:01] Speaker 03:
There is no CAVC decision on point regarding equitable towing.

[00:04:07] Speaker 03:
What the CAVC has said, however, in Hannum v. Shinseki, that's docket number 113537, was that

[00:04:18] Speaker 03:
to the extent the board had said or suggested that 7105, that's the Nod provision, is jurisdictional, that was undermined by the Supreme Court's decision in Henderson.

[00:04:32] Speaker 03:
So they didn't directly rule on it, but they certainly strongly suggested that equitable tolling should apply.

[00:04:38] Speaker 03:
And we believe it should, and we believe it should require a change to that particular regulation.

[00:04:45] Speaker 02:
And this issue was not raised in that

[00:04:47] Speaker 02:
October cases, correct?

[00:04:49] Speaker 03:
That this particular issue was not raised in the October.

[00:04:53] Speaker 03:
That's correct.

[00:04:55] Speaker 03:
Now further with respect to the NOD is the specificity required by the NOD.

[00:05:01] Speaker 03:
Now this court in a number of its cases has explained what a notice of disagreement is.

[00:05:07] Speaker 03:
In the Stratt case, the Burton case, Hamilton and Rivera, this court has been very clear about what an NOD is.

[00:05:15] Speaker 03:
Strott most particularly, and that's a case from 1992, says that Congress implicitly adopted the definition of a nod that was already in place when the VCAA was enacted.

[00:05:32] Speaker 00:
What about Gallegos?

[00:05:33] Speaker 00:
Doesn't Gallegos squarely address, you know, do a statutory interpretation of 7105 and what an NOD is?

[00:05:44] Speaker 00:
Didn't Gallegos then go further and say it's open-ended, it's not an NOD, by statute is not limited to just the two things that the statute identifies?

[00:05:53] Speaker 03:
I don't think Gallegos can be read that broadly.

[00:05:57] Speaker 03:
And it certainly doesn't suggest a different result.

[00:05:59] Speaker 03:
In fact, in Gallegos, this court looked at the regulation approvingly, at the regulation that defined a nod at the time, and said that it supported the result there.

[00:06:12] Speaker 03:
The only change from what the court said in Stratt and the regulation in effect at the time of Stratt and Gallegos was in Stratt, the regulation said that the NOD should request appellate review.

[00:06:31] Speaker 03:
In Gallegos, this court looked approvingly on the exact same regulation and said that the NOD must identify

[00:06:40] Speaker 03:
a request for appellate review.

[00:06:43] Speaker 03:
That is the only difference.

[00:06:45] Speaker 03:
I don't think that Gallegos can be read to suggest that any other condition that the VA wants to put on the NOD is appropriate.

[00:06:55] Speaker 00:
But I think what it did say is that there's a gap in the statute that the VA can fill.

[00:07:01] Speaker 00:
I agree with you that the VA doesn't have unfettered discretion to add any particular additional requirement, but it

[00:07:10] Speaker 00:
would have to come within the bounds of what may be deemed reasonable under the Chevron framework.

[00:07:16] Speaker 00:
Isn't that a fair reading of Gallegos?

[00:07:18] Speaker 03:
I don't believe it is.

[00:07:19] Speaker 03:
If there was a gap to be filled, it was quite tiny.

[00:07:22] Speaker 03:
It was going from should request appellate review to must request appellate review.

[00:07:27] Speaker 03:
And what Gallegos could not do was change what Strzok said.

[00:07:32] Speaker 03:
Strzok came 10 years before and said Congress implicitly adopted a definition of the NOD

[00:07:40] Speaker 03:
when enacting specific legislation, VCAA.

[00:07:43] Speaker 03:
And when the VCAA was adopted, it was done and the trigger was the NOD to get into the appellate process.

[00:07:52] Speaker 03:
Congress necessarily considered the NOD because it was adopted as part of the VCAA process and allowing veterans to have judicial review.

[00:08:03] Speaker 03:
Strzok recognized that.

[00:08:05] Speaker 03:
Gallego's decision, unfortunately, does not.

[00:08:08] Speaker 03:
It doesn't discuss Strahd.

[00:08:10] Speaker 03:
It doesn't even consider Strahd.

[00:08:12] Speaker 03:
That implicit definition of Nod recognized by Congress needs to continue to be recognized by the VA.

[00:08:19] Speaker 03:
If the requirements of the Nod are going to be changed by statute, it must be done by Congress.

[00:08:25] Speaker 03:
It cannot be done by VA because of Strahd and because of the other cases that say that, Burton, Hamilton, and Rivera, which also recognize that the NOD is supposed to be something simple

[00:08:38] Speaker 03:
and basic, triggering the appellate process and getting the veteran from the decision phase to the appeal phase.

[00:08:49] Speaker 02:
And so how would this new system not comply with that principle?

[00:08:54] Speaker 03:
Well, if you look at the form itself, the specificity now required by the form.

[00:09:00] Speaker 03:
And we can see the form.

[00:09:03] Speaker 03:
The NOD form is at the Joint Appendix A293,

[00:09:08] Speaker 03:
It's also in the appellate record at A-253.

[00:09:12] Speaker 03:
Now, instead of a veteran submitting, potentially, a letter to the VA that says, I disagree with the decision that you made on March 7, 2016.

[00:09:23] Speaker 03:
Full stop.

[00:09:25] Speaker 03:
Now, instead, this veteran must submit this form that requests a lot of additional information.

[00:09:33] Speaker 03:
And in particular, one problematic area

[00:09:37] Speaker 03:
In commenting on the proposed rules, and you'll find that at JA 27, the government said it would not be necessary for a claimant to describe the area of disagreement.

[00:09:50] Speaker 03:
Okay, that's what was said during the rulemaking.

[00:09:53] Speaker 03:
But if you look at the form, and the form again, at JA 293, the form tells veterans VA will consider the form complete at a minimum

[00:10:08] Speaker 03:
if it indicates, among other things, the area of disagreement.

[00:10:12] Speaker 03:
So the form says exactly what the comment said the veteran doesn't have to provide.

[00:10:22] Speaker 03:
In addition, the regulation.

[00:10:24] Speaker 02:
What if the VA just adopted a use of a form, but the form had to say, had to list the date of the decision and the request to appeal from that decision, but they wanted it on a form?

[00:10:38] Speaker 03:
Your Honor, we are not opposed to the use of forms.

[00:10:41] Speaker 03:
And I don't think any of the petitioners, as counsel for PE said at the very beginning, are opposed to the use of forms.

[00:10:48] Speaker 03:
Forms are beneficial, and they've been used by VA to initiate claims for decades.

[00:10:55] Speaker 03:
So we are not opposed to that.

[00:10:56] Speaker 03:
The form, though, should be consistent with the implicit definition adopted by Congress.

[00:11:02] Speaker 03:
And there should be some provision where a veteran who does not fill out the form

[00:11:08] Speaker 03:
can get that deadline told.

[00:11:11] Speaker 03:
That deadline can't be made jurisdictional.

[00:11:13] Speaker 03:
So if that was the situation, then I think we would be fine with an NOD form.

[00:11:22] Speaker 03:
The other issue I'd like to address is the effective date.

[00:11:26] Speaker 03:
And this is at the other end of the claim process, which is the effective date for initiating your claim as opposed to the date for the NOD.

[00:11:38] Speaker 03:
The effective date provision has been changed.

[00:11:43] Speaker 03:
In the past, a veteran could file an informal claim, and that claim would allow the veteran to have an effective date.

[00:11:50] Speaker 03:
Now, the veteran is required to file the form in order to get the effective date.

[00:11:54] Speaker 03:
And the problem is not the form.

[00:11:57] Speaker 03:
The problem is eliminating the time period from an informal submission until the actual formal claim or formal form

[00:12:07] Speaker 03:
is filed and the loss of benefits for that time period.

[00:12:11] Speaker 03:
And that is what we are petitioning, that change.

[00:12:16] Speaker 03:
Now, the government argues that by statute, it can require forms to initiate claims.

[00:12:25] Speaker 03:
And we don't believe that's true.

[00:12:27] Speaker 03:
The government relies on 38 USC 5101 for that proposition.

[00:12:34] Speaker 03:
That is titled Claims and Forms.

[00:12:37] Speaker 03:
And it says that a specific claim in the form prescribed by the secretary must be filed, but the end of it is what's significant in order for benefits to be paid.

[00:12:50] Speaker 03:
Requiring the form is required for ultimate payment, not for initiation.

[00:12:56] Speaker 03:
And the other parts of the statute support that.

[00:12:59] Speaker 03:
If we look at 5102A, application forms, it says,

[00:13:06] Speaker 03:
Upon request by any person claiming or applying or expressing an intent to claim or apply for a benefit, the Secretary shall furnish all instructions and forms necessary to apply.

[00:13:20] Speaker 01:
You know what's troubling about this.

[00:13:23] Speaker 01:
Here we have a record.

[00:13:24] Speaker 01:
We don't know how complete the record is, but the record seems to be split between

[00:13:29] Speaker 01:
veterans and veterans representatives who say, at last the forum is easier.

[00:13:34] Speaker 01:
We don't have to worry about this and that.

[00:13:36] Speaker 01:
The forum tells us what we need to tell you.

[00:13:39] Speaker 01:
And so we're glad to have the forum.

[00:13:42] Speaker 01:
The other, there are also statements saying this is confusing and disadvantageous.

[00:13:48] Speaker 01:
And these conflicting positions, we're told, were balanced by the VA to try and figure out where the greater good is.

[00:13:58] Speaker 01:
and how to decide that that's wrong is very difficult on the record.

[00:14:05] Speaker 01:
I can see that it's easier for a court to consider that maybe it's a bit too rigid in view of other statutory provisions, that all of the entire structure of the veterans laws must be veterans friendly and you should provide flexibility.

[00:14:22] Speaker 01:
But where are we with all this?

[00:14:25] Speaker 01:
The conflict as to whether forms are better or worse,

[00:14:29] Speaker 01:
Is it too rigid or not?

[00:14:33] Speaker 01:
Is there flexibility based on the statute that the courts can announce?

[00:14:37] Speaker 01:
And we know that your associations are active in representing veterans.

[00:14:43] Speaker 01:
It would be interesting to know if there are changes in view based on your positions.

[00:14:50] Speaker 03:
At least for DAV and VFW, there is no change of view.

[00:14:54] Speaker 03:
And in response, I would say two things.

[00:14:57] Speaker 03:
Forms are required, and we have no objection to a form being required for benefits to be paid.

[00:15:06] Speaker 03:
What we object to is the now and new mandatory nature of a form to initiate a claim.

[00:15:14] Speaker 03:
We think that is inconsistent with the statute that provides that a veteran claims or applies, indicates an intent to apply, and then the form is provided.

[00:15:27] Speaker 03:
and then the procedure goes on.

[00:15:29] Speaker 03:
So the very first thing is a claim or application followed by the form.

[00:15:34] Speaker 03:
And we have no problem with that and the mandatory nature of the form at that time.

[00:15:40] Speaker 02:
Our objection... This issue was definitely raised in the October cases, correct?

[00:15:46] Speaker 03:
The issue of the early effective date and the elimination of the informal system was addressed.

[00:15:51] Speaker 03:
I don't think that it was as clearly addressed

[00:15:54] Speaker 03:
a response to the government's statutory position with respect to 5101.

[00:16:00] Speaker 03:
There were many arguments about Chevron deference if the system is consistent with the statute.

[00:16:07] Speaker 03:
That is absolutely true.

[00:16:09] Speaker 03:
And we agree with those arguments.

[00:16:12] Speaker 03:
The issue I wanted to bring to the court's attention is a specific response to the government's reliance on 5101 and the system overall.

[00:16:23] Speaker 03:
Our view is the statute sets forth a scheme.

[00:16:27] Speaker 03:
That scheme has been adopted and ratified.

[00:16:30] Speaker 03:
The Congress changes the veterans' rules fairly often.

[00:16:34] Speaker 03:
And again, when the veterans, the BCAA was enacted, it did so.

[00:16:41] Speaker 03:
And again, when the Congress amended the VA statute to eliminate the concept of well-grounded claim.

[00:16:50] Speaker 03:
Congress did that in response to decisions from the CAVC and this court and changed that.

[00:16:55] Speaker 03:
They amended the statute and in doing so, they looked at 5201, 5202 and they amended parts of that statute.

[00:17:02] Speaker 03:
What they didn't change though was the system in general as it was in place.

[00:17:08] Speaker 03:
That is, a claim can be initiated by the veteran in any way, in an informal way that's been used by the VA for almost a century.

[00:17:19] Speaker 03:
That was not changed.

[00:17:21] Speaker 03:
It was certainly ratified, and it's certainly consistent with the actual statutory language.

[00:17:27] Speaker 03:
So our view is, in view of the statutory language, the practice and the ratification by Congress of this system that the VA, by regulation now, eliminating early effective dates for veterans who don't file on a form is invalid.

[00:17:45] Speaker 01:
Okay.

[00:17:46] Speaker 01:
Thank you.

[00:17:46] Speaker 01:
We'll save you rebuttal time, and let's hear from the government.

[00:17:53] Speaker 04:
Please the court.

[00:17:56] Speaker 04:
Yes, the specificity argument was presented in some detail, both in the briefs and at the oral argument in October.

[00:18:02] Speaker 04:
I want to begin, though, before I address specificities.

[00:18:05] Speaker 02:
What was the statutory argument even addressed?

[00:18:08] Speaker 02:
I actually don't.

[00:18:09] Speaker 04:
I'm sure counsel will help me out here.

[00:18:10] Speaker 04:
I don't actually remember.

[00:18:13] Speaker 04:
I think I may have heard, and it may be in the briefs, this idea that 5101 is somehow limited to the idea that a claim

[00:18:22] Speaker 04:
is something different than an application.

[00:18:26] Speaker 04:
Our position is you read 5101 and 501A4 together and they provide 5101A1 a specific claim and the form prescribed by the secretary must be filed in order for benefits to be paid.

[00:18:40] Speaker 04:
In 501A2 the secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws to include the forms of applications by claimants under such laws.

[00:18:51] Speaker 04:
We've always interpreted

[00:18:53] Speaker 04:
There's always been a requirement prior to this rulemaking to submit a form for new claimants.

[00:18:58] Speaker 04:
That's not changed.

[00:18:59] Speaker 02:
Yeah, but they didn't have to submit the form to be a placeholder for purposes of the effective date of the claim.

[00:19:06] Speaker 04:
There was an effective date result associated with regulations that allowed effectively informal claims or, as we call them now, intense defilements.

[00:19:16] Speaker 02:
How could those regulations have ever been a reasonable interpretation of the statute if you say the statute

[00:19:22] Speaker 02:
is mandatory and means something different than those regulations?

[00:19:25] Speaker 04:
That's an interesting question.

[00:19:27] Speaker 04:
Thank you.

[00:19:28] Speaker 04:
And I know that's the last thing I should have said.

[00:19:30] Speaker 04:
I've taught appellate advocacy before.

[00:19:32] Speaker 04:
But something that I thought about too.

[00:19:35] Speaker 04:
I would answer it this way.

[00:19:37] Speaker 04:
I think actually the regulations this time actually are more consistent with the regulations than they may have been once upon a time.

[00:19:44] Speaker 04:
But that being said,

[00:19:46] Speaker 02:
You mean the regulations now are more consistent with the statute?

[00:19:50] Speaker 04:
They more mirror the idea behind the statutes, which tie compensation to applications and complete applications under 5101.

[00:19:57] Speaker 04:
Your effective date is the date of your application.

[00:20:00] Speaker 04:
It doesn't say the date of your incomplete application.

[00:20:02] Speaker 04:
It says the date of your application.

[00:20:04] Speaker 04:
So in order to allow a statutory argument that Congress envisioned some sort of placeholders would have this court require

[00:20:14] Speaker 04:
It would have to read incomplete into the term application in 5110.

[00:20:17] Speaker 02:
Which is what the VA apparently had done before.

[00:20:19] Speaker 04:
In their regulations, the VA has often extended benefits.

[00:20:26] Speaker 04:
And they're doing it today.

[00:20:27] Speaker 04:
Here's an example, Your Honor.

[00:20:28] Speaker 04:
I wake up this morning and I want to file a claim.

[00:20:31] Speaker 04:
I'm a veteran.

[00:20:32] Speaker 04:
It's a hypothetical.

[00:20:35] Speaker 04:
But I'm a veteran and I want to file a claim.

[00:20:37] Speaker 04:
Under the old rules, I want to file a claim.

[00:20:39] Speaker 04:
I can write it down on a piece of paper.

[00:20:41] Speaker 04:
I go down to my postal service.

[00:20:42] Speaker 04:
I find out where the postal guy lives.

[00:20:44] Speaker 04:
I send it to him.

[00:20:45] Speaker 04:
He gets it.

[00:20:46] Speaker 04:
The VA gets it in three or four days.

[00:20:48] Speaker 04:
And that could be a placeholder.

[00:20:49] Speaker 04:
The VA responds under 5102 with my application.

[00:20:53] Speaker 04:
I fill it out.

[00:20:53] Speaker 04:
I send it in.

[00:20:55] Speaker 04:
That was actually what I could do in March of last year.

[00:20:59] Speaker 04:
This morning, I wake up.

[00:21:00] Speaker 04:
I want to figure out, how do I file a claim?

[00:21:02] Speaker 04:
I call the VA up.

[00:21:03] Speaker 04:
How can I file a claim?

[00:21:05] Speaker 04:
Well, let me connect you to our claims person.

[00:21:07] Speaker 04:
You tell them you want to file the claim.

[00:21:09] Speaker 04:
They take their information over the phone.

[00:21:11] Speaker 04:
And your effective date is that day.

[00:21:13] Speaker 04:
So under the new system, your effective date is as early as the day you wake up to try to figure out you want to file a claim if you make a phone call.

[00:21:21] Speaker 04:
Now, I recognize, Your Honor, the concerns you have about homeless veterans.

[00:21:27] Speaker 04:
VA has, as I was reminded between the arguments, an outreach program to try to help.

[00:21:32] Speaker 01:
And you never file the completed form on your hypothetical?

[00:21:37] Speaker 04:
You do file.

[00:21:37] Speaker 04:
So under the rules,

[00:21:38] Speaker 04:
You work with the VA person on the phone who actually types out the information for the form into the form for you while you're on the phone.

[00:21:46] Speaker 04:
They ask you the questions.

[00:21:47] Speaker 04:
What's your social security number?

[00:21:49] Speaker 04:
What's your this?

[00:21:49] Speaker 04:
What's your that?

[00:21:50] Speaker 04:
And they fill out the information there.

[00:21:52] Speaker 04:
When you say under the rules, that happens.

[00:21:54] Speaker 04:
New rules.

[00:21:55] Speaker 04:
The rules actually say that?

[00:21:57] Speaker 04:
There's a rule for phone.

[00:21:58] Speaker 04:
That's one of the great perks of the new rule is we weren't eliminating the idea of placeholders.

[00:22:05] Speaker 04:
We were updating them to be

[00:22:08] Speaker 04:
commensurate with modern technology.

[00:22:11] Speaker 02:
So the idea is... Well, you were eliminating placeholders.

[00:22:14] Speaker 02:
What you were saying is... We're changing placeholders.

[00:22:17] Speaker 02:
Well, you're eliminating placeholders.

[00:22:19] Speaker 02:
You're saying that the form is filed when it gets filed, but you can do it by phone.

[00:22:25] Speaker 04:
No, there's actually a placeholder aspect to this as well.

[00:22:29] Speaker 04:
So you can go on, you call the person and you give them a minimal amount of information.

[00:22:37] Speaker 04:
That's your placeholder.

[00:22:37] Speaker 04:
It's almost like you wrote it out yourself.

[00:22:40] Speaker 04:
Then you get the form in the mail that's more expansive, and you fill that out.

[00:22:44] Speaker 04:
That form is very similar to the form that's always been required to fill out.

[00:22:47] Speaker 04:
Alternatively, if you have access to a computer, I mean, I know it's, you know, the reason we do this is because most of our veterans actually use computers to communicate with the VA, as the court knows, and the clerk's office does when dealing with proceeds.

[00:23:01] Speaker 04:
They like to use computers.

[00:23:03] Speaker 01:
Yeah, unless you're homeless.

[00:23:04] Speaker 04:
unless you're homeless.

[00:23:05] Speaker 04:
But the same concerns, Judge Newman, about homelessness would also affect written communications through the mail.

[00:23:12] Speaker 04:
That's why we, in response to the rulemaking, the proposed rule actually kind of eliminated with the sort of paper communication method.

[00:23:22] Speaker 04:
And it was brought to our attention by the service organizations and others that, what about people who are homeless?

[00:23:26] Speaker 04:
What about people that don't have access to computers?

[00:23:29] Speaker 01:
What's troublesome is that it seems that for, I don't know how,

[00:23:33] Speaker 01:
what percentage or how rare it is, but for those veterans who don't, for whatever reason, get into the system, schools out, there's no way that they can recover.

[00:23:44] Speaker 04:
See, we disagree.

[00:23:45] Speaker 04:
VA is actively engaged.

[00:23:47] Speaker 01:
Well, that was a question, not a statement.

[00:23:49] Speaker 01:
Then I would disagree.

[00:23:50] Speaker 01:
This is what we get from the briefs, from the record that you sent us, that however, whatever it is, for those veterans who, for whatever reason, don't

[00:24:02] Speaker 01:
put themselves into the system.

[00:24:04] Speaker 01:
Maybe they don't know to telephone somebody and that it will be filled out over the phone.

[00:24:10] Speaker 01:
Maybe they don't know any of this.

[00:24:11] Speaker 01:
But they send, as has been done for decades, they write a letter and say they got it wrong.

[00:24:17] Speaker 01:
That seems to be the general knowledge and, in fact, the information that comes from the board.

[00:24:26] Speaker 04:
So if I may answer that, that's why we have built-in safeguards into these regulations.

[00:24:32] Speaker 04:
Example in the claims process, if the individual doesn't have access to something but sends in the document, actually under the statute 5102, which is incorporated into the regulation 3.155, the VA is required to assist that person to help complete the form.

[00:24:49] Speaker 04:
They are required to send them the information necessary to complete the form and follow up.

[00:24:54] Speaker 04:
If they send them the form and if it comes back,

[00:24:59] Speaker 04:
And VA feels that it's incomplete.

[00:25:00] Speaker 04:
VA cannot close that.

[00:25:02] Speaker 04:
It has to under 3.155B3 help the veteran identify what's missing in order for them to complete their application.

[00:25:09] Speaker 04:
And there's a similar requirement under 19.24B for the notice of disagreements.

[00:25:13] Speaker 04:
If you've submitted an incomplete form, the VA, you are not out of luck.

[00:25:18] Speaker 04:
If your form is incomplete, the VA is on the clock to help you fix it.

[00:25:23] Speaker 04:
Now, that's slightly different, as I said, from the situation.

[00:25:25] Speaker 00:
I'm sorry.

[00:25:25] Speaker 00:
What do you mean by on the clock?

[00:25:27] Speaker 00:
Because just in terms of understanding 5102, if a claimant files an incomplete but standard claim form, then the secretary notifies the claimant of that?

[00:25:40] Speaker 00:
Yes.

[00:25:40] Speaker 00:
And then after that, the claimant has one year to respond to the secretary's notification that the form is incomplete?

[00:25:49] Speaker 00:
OK, yes.

[00:25:49] Speaker 04:
Under 5102C, I believe it is.

[00:25:52] Speaker 04:
The time period is after the... I think under 5102C, the time period of one year starts from the date that they get the application.

[00:26:05] Speaker 04:
But within that, the regulation builds in an additional safeguard that says if you submit an incomplete application, the VA will tell you what's missing.

[00:26:12] Speaker 04:
I'm not sure if the 60-day or one year... Yeah, actually, I think that is.

[00:26:17] Speaker 04:
I think it's 60 days or one year, whichever is longer.

[00:26:21] Speaker 04:
Because sometimes you might not get back to the person within the one year period.

[00:26:24] Speaker 04:
So there's an alternate 60 day period that would have 60 days to respond in order to keep everything moving along.

[00:26:31] Speaker 04:
But again, the one thing that was discussed earlier, and I'll be perfectly frank, that I don't think directly covered by the regulations is this tolling stuff.

[00:26:45] Speaker 04:
And there's, in the NOD context, not in the claim context,

[00:26:48] Speaker 04:
having to do with the claim context.

[00:26:50] Speaker 04:
But as we explained earlier, we believe that what VA is trying to do there is to provide, if the VA said essentially, we're not going to make these forms mandatory, then efficiencies are reduced.

[00:27:02] Speaker 04:
So we need to balance the equation.

[00:27:06] Speaker 04:
And in any rulemaking, that's what the agency does, have to balance the interest of the entire process against the individual claimants.

[00:27:13] Speaker 04:
And that's what they did here and came up with all kinds of safety nets to try to help the individual claimants

[00:27:18] Speaker 04:
And in our opinion, have not ruled out, nor could they rule out application of Henderson to the NOD period for purposes of board review.

[00:27:26] Speaker 04:
But they don't want to encourage people to simply file non-standard forms when they've been provided the standard forms as part of their decision.

[00:27:34] Speaker 04:
So they have language in the regulation that discourages that behavior.

[00:27:38] Speaker 04:
We think that's perfectly acceptable.

[00:27:40] Speaker 04:
And it doesn't preclude a board or a veterans court or this court from imposing some kind of tolling on that process.

[00:27:47] Speaker 00:
So is it fair for you

[00:27:48] Speaker 00:
the court to read the rule as the rule says you don't enjoy, as a claimant, automatic tolling if you file an informal NOD.

[00:27:58] Speaker 00:
However, there's nothing in this rule that bans the possibility of equitable tolling for a claimant under those circumstances after looking at all the larger facts and circumstances surrounding the untimely official form.

[00:28:13] Speaker 04:
I think that's a reasonable interpretation of the rulemaking, Your Honor.

[00:28:17] Speaker 04:
It specifically changed the scope of the board's review with respect to the 20.201A5 filing, the standard form filing.

[00:28:28] Speaker 04:
They removed the authority for the board to determine adequacy, compliance with the requirements for an NOD, because it's now on the form.

[00:28:38] Speaker 04:
So that makes sense, you don't need to do it.

[00:28:39] Speaker 04:
But they retained the right, they retained the role of the board to determine timing.

[00:28:44] Speaker 04:
And when you have the responsibility to determine timing, you have the full panoply of timing.

[00:28:49] Speaker 00:
I can't remember.

[00:28:50] Speaker 00:
Did you talk about the requirement, the other side's argument that the requirements in the new NOD demand a lot more substantive information than what was required before?

[00:29:03] Speaker 04:
OK.

[00:29:03] Speaker 04:
I only said, I think I started out.

[00:29:06] Speaker 04:
I'll move to that now, if you will.

[00:29:08] Speaker 04:
I started out by indicating that that was an area that was thoroughly hashed out in the earlier panel.

[00:29:13] Speaker 02:
So before you move, then let's pin down what my question originally was that started us down this road, and that is that the other, in the other panel, the argument was never made that the statute does not mandate the system that you're using now.

[00:29:31] Speaker 04:
This is in terms of NODs or the claims, I'm sorry?

[00:29:39] Speaker 02:
In terms of using the

[00:29:42] Speaker 02:
form to initiate the claim.

[00:29:43] Speaker 04:
Oh, no.

[00:29:44] Speaker 04:
That argument was to be, as I recall, the argument about whether or not the VA had the authority to require these claims and what was going to happen with the old informal claim rule 3.155, those were all thoroughly addressed in the briefs.

[00:29:59] Speaker 04:
But at oral argument, the panel was a little more interested in the reasonableness of the agency's actions.

[00:30:05] Speaker 04:
The other side attempted to present argument about the statute.

[00:30:10] Speaker 04:
We didn't go down that road very long.

[00:30:13] Speaker 04:
We mainly focused on the reasonableness aspect of it.

[00:30:16] Speaker 02:
But you think in the briefs, you went down there?

[00:30:18] Speaker 04:
It was always in the briefing.

[00:30:19] Speaker 04:
Yeah, the briefs in this case, all five briefs are very similar.

[00:30:21] Speaker 04:
I can almost tell you the differences.

[00:30:23] Speaker 04:
One difference is in DAV, as was just indicated by counsel, they have this argument about, they made a Hamilton argument, or I mean the Hamilton, Henderson argument, and a Hamilton argument.

[00:30:36] Speaker 04:
That one hit close to the bone.

[00:30:40] Speaker 04:
23 years, I stood before this court in Argonne-Hamilton, or something like that.

[00:30:48] Speaker 04:
So that aspect of the NOD, I do think, was new.

[00:30:52] Speaker 04:
I don't recall that being subject to the challenges of NOVA and the infection justice group.

[00:30:57] Speaker 04:
They were more concerned about the specificity concerns.

[00:30:59] Speaker 04:
Why are we asking about knees?

[00:31:02] Speaker 04:
DAV has this idea, in which we'll now discuss, if the court would like, about Hamilton and Straub.

[00:31:10] Speaker 04:
which we don't think actually, their argument doesn't stand up.

[00:31:17] Speaker 04:
The point of the Straat Hamilton cases was trying to determine when the Vectors Court would start hearing cases.

[00:31:24] Speaker 04:
It was a new court, 1988, and Congress imposed a sort of limitation on the cases they could hear by what they called the note, 38 USC 7251 note, jurisdiction-conferring NOD, as they described it.

[00:31:41] Speaker 04:
And that was simply designed to have the court address new cases, not cases that had already been subject to board hearings years and years before.

[00:31:49] Speaker 04:
Only a new claim, which was appealed into the system after the effective date of the statute, the VJRA, November 18, 1988.

[00:32:00] Speaker 04:
And so the issue for this court in Stra and in Hamilton was whether

[00:32:08] Speaker 04:
Certain documents which nobody disputed were VA Form 1-9 forms for substantive appeals could constitute NODs.

[00:32:16] Speaker 04:
And the analysis in Hamilton was all about the process that takes place when you appeal a claim in the VA system.

[00:32:24] Speaker 04:
And the idea being that it starts with a notice of disagreement.

[00:32:27] Speaker 04:
It's followed by the preparation of a statement of the case by the VA explaining more fulsomely the basis for the denial at the regional office level.

[00:32:36] Speaker 04:
or agency of original jurisdiction, as the statutory term is, and then followed by the filing of a substantive appeal, often referred to and in those decisions referred to as the VA form 19, which is the number of the form that most people file and still continue to use to file today for purposes of confirming their appeal.

[00:32:55] Speaker 04:
Once that document is filed, the VA form 19, then the case is certified.

[00:33:00] Speaker 04:
But there's a lot of stuff that goes on before the case is certified for the board.

[00:33:03] Speaker 04:
That's what I meant to say, the board.

[00:33:05] Speaker 04:
And one of those things is that after a notice of disagreement is filed, the regulations require the agency of original jurisdiction, the RO, to reconsider the case.

[00:33:15] Speaker 04:
They need to do, and partly this is because as part of the NOD process, the claimants are actually allowed to submit new evidence.

[00:33:23] Speaker 04:
So that if the, an example, I think maybe one we even used in the past was, if the NOD

[00:33:29] Speaker 04:
denied the accrued benefits claimant, her claim, because she could not establish that she was actually married to the deceased veteran.

[00:33:37] Speaker 04:
And that's what the RO said.

[00:33:39] Speaker 04:
The claimant, as part of her NOD, could attach her marriage certificate.

[00:33:43] Speaker 04:
The NOD, the agency of original jurisdiction, is required to take that evidence into account.

[00:33:47] Speaker 04:
1926 was the old regulation, 38 CFR, and they might award the benefits, thereby eliminating the need for any further appeal of the law.

[00:33:58] Speaker 04:
So it became

[00:34:00] Speaker 04:
important to this court and to the Vectors Court at the time to try to determine which of these documents is part of the process of starting the appeals was the one Congress referred to when they said notices of disagreements.

[00:34:11] Speaker 04:
There really wasn't any dispute in those cases about what these things were.

[00:34:16] Speaker 04:
They were notices of disagreements that were filed in those cases prior to November 18, 1988, but there were VA Form 1-9s, the substantive appeal documents, that were filed subsequent to that date.

[00:34:28] Speaker 04:
And the arguments in those cases were all about, well, could those qualify?

[00:34:31] Speaker 04:
And this court, especially in Hamilton, went through in a very, very thorough manner the VA appellate process.

[00:34:38] Speaker 04:
And in so doing, there is reference, actually it's in Stratt, to, well, Congress referred to NODs.

[00:34:43] Speaker 04:
But the point of that reference isn't to define for all time what an NOD is required or may contain.

[00:34:51] Speaker 04:
The point of that reference was to define for purposes of those cases whether these things were NODs as opposed to VA-419s.

[00:34:58] Speaker 04:
Now we fast forward to Gallegos in 2002, which coincidentally is a year or so after Congress repealed 7251 note.

[00:35:08] Speaker 04:
So at the time of Gallegos, we don't even have the statute that was in existence at the time of Stratton Hamilton that led to that entire analysis.

[00:35:15] Speaker 04:
In 2002, this court in Gallegos says, among other things, thus, Section 7105, which is the statute that talks about notice of disagreement,

[00:35:29] Speaker 04:
does not express a complete and unambiguous meaning for the statutory term notice of disagreement.

[00:35:35] Speaker 04:
We can only read that one way, and that answers the precise question that's raised in this case, not Stratton-DeWinsky.

[00:35:40] Speaker 04:
The question raised in this case is, can the VA, in their notice of disagreement, ask the veteran to identify the body part?

[00:35:47] Speaker 04:
And we believe we can.

[00:35:48] Speaker 04:
And that's what we're doing.

[00:35:49] Speaker 04:
And that's all we're asking for.

[00:35:50] Speaker 04:
And the form does ask for additional information if it's available to the individual.

[00:35:54] Speaker 04:
And why?

[00:35:55] Speaker 04:
Because that helps the process.

[00:35:56] Speaker 04:
The sooner we get the information,

[00:35:58] Speaker 04:
which is eventually going to have to come from the veteran anyway, the better off it is.

[00:36:02] Speaker 04:
So we ask for that information.

[00:36:03] Speaker 04:
And for example, with respect to the part on the form where it says, what is your rating or desired rating?

[00:36:08] Speaker 04:
We say, if you know.

[00:36:10] Speaker 04:
We're not holding these people to that.

[00:36:12] Speaker 04:
But if they have the information, and many of them do, that's a good time to give it to us as part of the NOD process.

[00:36:18] Speaker 04:
That's all we're doing.

[00:36:20] Speaker 04:
And we're not asking for detailed medical views about why they think that

[00:36:26] Speaker 04:
they're service-connected, if that's the issue.

[00:36:28] Speaker 04:
We're asking what is the area of your dispute.

[00:36:31] Speaker 04:
And it's to help the VA figure out in a claim, especially in a claim where there's multiple things, that they're talking about this particular claim or that particular claim.

[00:36:41] Speaker 04:
Because that is the case.

[00:36:42] Speaker 04:
Many of these cases have multiple claims.

[00:36:44] Speaker 04:
And I will add one thing.

[00:36:45] Speaker 04:
I'm going to repeat it here that I responded to at oral argument.

[00:36:48] Speaker 04:
It hasn't come up yet.

[00:36:49] Speaker 04:
But in October, I think Nova and PJG were concerned about

[00:36:57] Speaker 04:
that the forum doesn't have a box on it.

[00:36:58] Speaker 04:
What if I want to appeal everything?

[00:37:00] Speaker 04:
And we are looking into that.

[00:37:00] Speaker 04:
And as I said in October, I think we're going to see what we can do about adding that.

[00:37:05] Speaker 04:
Anything else for Mr. Hockey?

[00:37:09] Speaker 01:
Anything else?

[00:37:11] Speaker 04:
I think.

[00:37:11] Speaker 01:
OK.

[00:37:15] Speaker 01:
Good.

[00:37:15] Speaker 01:
Thank you.

[00:37:16] Speaker 01:
Thank you, Mr. Hockey.

[00:37:20] Speaker 01:
Ms.

[00:37:20] Speaker 01:
Hines.

[00:37:23] Speaker 03:
Thank you.

[00:37:24] Speaker 03:
A few points.

[00:37:26] Speaker 03:
With respect to the nod and the specificity of the nod, in 2011, this court addressed the nod and the process, the process of appealing an adverse decision in Rivera.

[00:37:43] Speaker 03:
And said, Congress believed that veterans often lacked the information necessary to pursue an appeal.

[00:37:49] Speaker 03:
Stands for the proposition that the nod is supposed to be and was always envisioned to be something simple and easy for the veteran to do.

[00:37:59] Speaker 03:
It puts the burden then on the VA to prepare a statement of the case.

[00:38:04] Speaker 03:
It's different from a typical appeal, but it is specific to a veteran's appeal.

[00:38:10] Speaker 03:
And while Mr. Hockey is correct,

[00:38:12] Speaker 03:
that for some veterans, it may be good to provide more information sooner.

[00:38:18] Speaker 03:
That's not the case for all.

[00:38:20] Speaker 03:
And that is our problem with the increased specificity.

[00:38:24] Speaker 03:
It may help some, but it may hurt others.

[00:38:27] Speaker 03:
That's the problem.

[00:38:30] Speaker 02:
Would the box saying, I appeal everything suffice?

[00:38:36] Speaker 03:
Well, Your Honor, it may.

[00:38:37] Speaker 03:
And that issue was addressed in the rulemaking.

[00:38:40] Speaker 03:
It's a JA24.

[00:38:42] Speaker 03:
And Mr. Hockey is correct that at oral argument in October, he said that that was being looked into.

[00:38:50] Speaker 03:
In January of this year, the VA reissued the Nod form and did not change that.

[00:38:56] Speaker 03:
So apparently they have looked into it, but nothing has changed.

[00:39:01] Speaker 03:
The form is still as complicated and inconsistent with the regulations as it was at the beginning.

[00:39:07] Speaker 03:
And I would point something else out on the Nod form.

[00:39:11] Speaker 03:
There are two detailed pages of instructions followed by the form itself.

[00:39:16] Speaker 03:
And in all capital letters on the first page of the form at the very top, presumably where the veteran reads first, the VA instructs the veteran

[00:39:27] Speaker 03:
A desire to contest the result will constitute a notice of disagreement.

[00:39:32] Speaker 03:
While special wording is not required, the nod must be in terms which can be reasonably construed as disagreement with the determination.

[00:39:41] Speaker 03:
That language is the language of the regulation that's been superseded by the new regulations.

[00:39:48] Speaker 03:
That language is telling the veteran, all you need to do is contest the prior determination.

[00:39:53] Speaker 03:
That language could certainly be read by a veteran as saying,

[00:39:57] Speaker 03:
I don't need to provide all this information.

[00:39:58] Speaker 03:
All I need to do is tell the VA I disagree with the decision.

[00:40:03] Speaker 03:
But they can't.

[00:40:04] Speaker 03:
They'll lose their rights if they do that.

[00:40:07] Speaker 03:
Now, Mr. Hockey, I want to move to the argument that Mr. Hockey made with respect to balancing the nod and making it mandatory.

[00:40:17] Speaker 03:
There are statistics in the record that during a study in Houston, when the nod was optional, an optional nod,

[00:40:27] Speaker 03:
In the first month, 90% of recipients filled out the form.

[00:40:34] Speaker 03:
And a few months later, that was up to about 94%.

[00:40:36] Speaker 03:
So many people will do it.

[00:40:38] Speaker 03:
They get the form, they'll fill it out.

[00:40:40] Speaker 03:
Our objection is to those who can't or won't.

[00:40:45] Speaker 03:
And there should be safeguards in place consistent with how the nod has been defined as something much less than it is now and something that gives people the opportunity

[00:40:55] Speaker 03:
if they don't file, if they can't file, if they file late to get some relief.

[00:41:00] Speaker 00:
I thought there was something in the register that said it was closer to 50% using the Nod.

[00:41:07] Speaker 00:
Am I mistaken?

[00:41:26] Speaker 00:
It's okay, we'll look it up in the record.

[00:41:29] Speaker 02:
Yeah, that's my recollection of the record too, but.

[00:41:38] Speaker 03:
With respect to 5110, and this is moving to the effective date issue, Mr. Hockey argued that there was an effective date result under Section 5110.

[00:41:51] Speaker 03:
Section 5110 refers again to the application.

[00:41:54] Speaker 03:
That's true.

[00:41:56] Speaker 03:
Section 5102, Section 5101, refer to and provide when a veteran is claiming or applying, the form will be sent.

[00:42:06] Speaker 03:
That, in our view, the claim or application made at that time, before the form is sent, that should be the application that is referenced for the effective date.

[00:42:17] Speaker 03:
So you can't read Section 5110 in isolation.

[00:42:20] Speaker 03:
You have to read it together with 5101 and 5102 to look at what Congress was intending and what Congress was addressing.

[00:42:33] Speaker 01:
OK, one final comment if you have it.

[00:42:36] Speaker 03:
The final comment is with respect to notification.

[00:42:45] Speaker 03:
Mr. Huckie was asked a question about the notification under Section 5102C.

[00:42:50] Speaker 03:
And he said that he believed that was from the application.

[00:42:54] Speaker 03:
That's not true.

[00:42:55] Speaker 03:
Section 5102C is not from when the application is originally sent.

[00:43:01] Speaker 03:
It is from when VA gives notice of something that needs to be completed.

[00:43:07] Speaker 03:
That is an additional problem with the regulations.

[00:43:09] Speaker 03:
Under the new regulations, the veteran will have one year from submitting the incomplete application to provide information.

[00:43:19] Speaker 03:
the VA's position is that the application itself can provide the notice of what's missing.

[00:43:24] Speaker 03:
And that's a bit circular.

[00:43:26] Speaker 03:
If the veteran submits an application that's incomplete and already has that notice, they get nothing else, or they may get nothing else, from the VA telling them what else they need to do.

[00:43:37] Speaker 03:
The statute requires one year to provide information from the date of notice, not from when the form is

[00:43:46] Speaker 03:
submitted originally, which is what the regulations now state.

[00:43:51] Speaker 03:
So we believe those regulations, both for the incomplete application, are inconsistent with that portion of the statute.

[00:43:58] Speaker 03:
Thank you.

[00:43:59] Speaker 01:
Okay.

[00:44:00] Speaker 01:
Thank you.

[00:44:00] Speaker 01:
Thank you both.

[00:44:01] Speaker 01:
The case is taken under submission.

[00:44:04] Speaker 01:
That concludes the argued cases for this panel this morning.

[00:44:15] Speaker 04:
The Honorable Court is adjourned tomorrow morning at 10 o'clock a.m.