[00:00:47] Speaker 00:
Okay, the next argued case is number 15-70-80, Paralyzed Veterans of America against the Secretary of Veterans Affairs, Ms.

[00:00:56] Speaker 00:
Blauhut.

[00:00:57] Speaker 04:
Thank you, Your Honor.

[00:00:58] Speaker 04:
Good morning, Your Honor.

[00:00:59] Speaker 04:
If you may please the Court.

[00:01:00] Speaker 04:
My name is Linda Blauhut.

[00:01:01] Speaker 04:
I represent Paralyzed Veterans of America as the petitioner, and at council table with me is Jennifer Sajak, also of Paralyzed Veterans of America.

[00:01:10] Speaker 04:
I think the Court is probably well aware this is a well-litigated petition, and we are one of five petitioners in this matter.

[00:01:16] Speaker 04:
And so I would like to just spend a few minutes on things that distinguish our petition, our positions.

[00:01:20] Speaker 04:
That was going to be my first question.

[00:01:23] Speaker 04:
The first, Your Honor, is that we have a broad global concern in the APA test to apply here.

[00:01:32] Speaker 04:
The VA and the agency is looking for sort of an isolated, you know, what we're doing is a perfectly rational, reasonable interpretation.

[00:01:41] Speaker 04:
And we think there is a broader APA problem here

[00:01:44] Speaker 04:
requires the court and that the agency should have looked at a greater number of factors, such as the relevant factors is the language we see, the consistency of their behavior, substantiation of the factual basis underlying the rulemaking, which is of course a big one for us because we don't see any factual substantiation of the claims the agency makes, and then other important aspects of the problem.

[00:02:10] Speaker 04:
And one thing that I think is very important to remember is that the claims process and the appeals process are part of a continuum.

[00:02:18] Speaker 04:
You cannot isolate one from the other.

[00:02:20] Speaker 04:
What happens at the claims level will necessarily affect what happens at the appeals level and potentially what ultimately happens in judicial review as these cases work their way through the system and come up to the courts.

[00:02:32] Speaker 04:
So even if we're gaining so-called efficiencies, which we question at the claims process level,

[00:02:38] Speaker 04:
And we now have a situation.

[00:02:40] Speaker 04:
The VA went to Congress a couple weeks ago with a new budget.

[00:02:42] Speaker 04:
They have a 400,000 case backlog at the board level.

[00:02:46] Speaker 04:
So an effort to create some systemic change in one part of the system necessarily should be considering all parts of the system.

[00:02:56] Speaker 04:
Something that gets you a tiny efficiency over here but gains you no efficiency or creates a greater problem in a later part of your system is not considered important aspects of the problem.

[00:03:06] Speaker 03:
OK, so why wouldn't the efficiencies that are created

[00:03:09] Speaker 03:
here, translate to over here.

[00:03:12] Speaker 04:
Well, I think the backlog that they're talking about is one demonstration.

[00:03:15] Speaker 03:
I also think, Your Honor, that there are a lot of unintended... Well, didn't they say that the main purpose, or one of the main purposes of this efficiency was to deal with the backlog?

[00:03:25] Speaker 04:
Well, it depends on whose backlog you're defining, I think.

[00:03:28] Speaker 04:
I think they count a backlog at the front end of the system very differently from how they measure a backlog at the peels part of the system.

[00:03:39] Speaker 04:
Somebody processing a piece of paper or an electronic file faster at the front door does not mean that there's no appeal of that or that those issues aren't considered later, that they don't balloon into an appeal later on.

[00:03:52] Speaker 04:
That's just the beginning part of the claim system.

[00:03:54] Speaker 03:
But if they are processed more quickly and if they are processed in a way that gives more uniformity, that provides specific details so everybody knows what they're dealing with, wouldn't that

[00:04:09] Speaker 03:
also translate to efficiencies at the appellate end?

[00:04:13] Speaker 04:
Not necessarily, Your Honor.

[00:04:14] Speaker 04:
And I question the premise that everybody knows what they're dealing with.

[00:04:19] Speaker 04:
No petitioner in any of these matters opposes standardized forms.

[00:04:24] Speaker 04:
And our understanding is that most people do use them.

[00:04:26] Speaker 04:
And that's fantastic.

[00:04:28] Speaker 04:
However, I think it is important when looking at actions of this agency, certain government agencies are created

[00:04:37] Speaker 04:
to provide, to dispense a public good, to spread out the resources of the government, and efficiencies in a broad what benefits the government best.

[00:04:47] Speaker 04:
And think about the FCC auctioning spectrum or something like that.

[00:04:50] Speaker 04:
In those instances, then we can put the efficiency of the government maybe on a higher level.

[00:04:57] Speaker 04:
In the case of the VA, the VA is a very different situation.

[00:05:01] Speaker 04:
Congress has given individual veterans who meet the criteria, who have served our country,

[00:05:06] Speaker 04:
the right to seek certain benefits.

[00:05:08] Speaker 04:
If they are entitled, they meet the criteria.

[00:05:11] Speaker 04:
So while the VA may distribute those benefits as efficiently as possible, they can't elevate the efficiency over, it doesn't trump the individual veteran's ability to get their benefit.

[00:05:24] Speaker 04:
So if there's something in the claims process, so if most are using the farms, fantastic, but you can't leave behind the veteran who doesn't.

[00:05:32] Speaker 04:
And that's what we're concerned about here.

[00:05:35] Speaker 05:
Didn't they try to accommodate that by allowing people to do something called an intent to file scheme where there's three different ways to notify the VA of your intention to file and one of them including calling designated VA personnel?

[00:05:53] Speaker 04:
Your Honor, I submit and I apologize for the way this will sound.

[00:05:58] Speaker 04:
I know from my personal client base, they've not had past success with calling the VA for things.

[00:06:04] Speaker 04:
You know, offering a telephone line may not calm the concerns of many veterans.

[00:06:11] Speaker 04:
The intent to file a process may be a very, very good process.

[00:06:14] Speaker 04:
I'm more concerned about injured veterans in VA hospitals and about veterans who don't file the standard NOD form exactly correctly.

[00:06:24] Speaker 04:
And one of our arguments, of course, has to do with 38 CFR 3.157, which is sort of a safety net provision.

[00:06:31] Speaker 04:
It's a very, very specific provision

[00:06:34] Speaker 04:
had to do with veterans who are maintained in VA hospitals, not maintained, pardon me, veterans who sought VA healthcare or had VA hospitalizations.

[00:06:42] Speaker 04:
These were veterans who were already service-connected, so their interaction with the system was pretty well established.

[00:06:50] Speaker 04:
They were known to the agency.

[00:06:52] Speaker 04:
And I apologize.

[00:06:53] Speaker 04:
We've had an example of a case.

[00:06:56] Speaker 04:
And I apologize.

[00:06:57] Speaker 04:
I don't have the citation right in front of me.

[00:06:58] Speaker 04:
We're happy to provide it, of course.

[00:07:00] Speaker 04:
Judge Mormon, just last year, in fact, on March 24th of last year, issued a single judge opinion describing the functioning of 3.157B, which is what we're talking about.

[00:07:11] Speaker 04:
And in that particular case, there was a veteran with a lot of mental disabilities.

[00:07:15] Speaker 04:
He was in and out of VA hospitals.

[00:07:17] Speaker 04:
And in that, the judge lays out the functioning of the regulation and then remanded to the board because there was a possibility that the veteran's date of service connections could have an earlier effective date, up to three years earlier, based on his hospitalizations.

[00:07:33] Speaker 04:
That has been lost under the young.

[00:07:37] Speaker 04:
By removing 3.157B, which is what they've done in this rulemaking, they've lost that.

[00:07:41] Speaker 04:
Another example, a hypothetical situation that might demonstrate

[00:07:46] Speaker 04:
the effect of the loss of this regulation is say a PBA member.

[00:07:51] Speaker 04:
We have members with severe disabilities and catastrophic disabilities who are often getting their care from VA.

[00:07:58] Speaker 04:
Say the PBA member, he's service-connected, his service-connected condition is worsening, he begins seeking care in the VA hospital, say he's hospitalized for six or seven months and then he passes away.

[00:08:08] Speaker 04:
His spouse, prior to March of last year, his spouse would be entitled to a DIC benefit

[00:08:14] Speaker 04:
based on the service-connected cause of death.

[00:08:17] Speaker 04:
But prior to last March, she would also have been entitled to an accrued benefit, a statutory benefit under 38 USC 5121, because that hospitalization would have created a pending claim at date of death.

[00:08:30] Speaker 04:
Since there can be no more pending claim based on a VA hospitalization, that spouse would not now be entitled to that statutory benefit.

[00:08:37] Speaker 04:
So I just wanted to bring to the court's attention that there are unintended consequences and other winners and losers, so to speak,

[00:08:44] Speaker 04:
in the changes that VA has implemented.

[00:08:47] Speaker 03:
So you started out by saying you were going to tell us exactly how these cases differ from the other cases that are pending.

[00:08:55] Speaker 03:
And I think you got way off of that.

[00:08:58] Speaker 03:
So the first thing you said is that there were global APA issues.

[00:09:04] Speaker 03:
But I don't understand how that wasn't raised by the other cases.

[00:09:10] Speaker 03:
It may not have been articulated exactly the same way.

[00:09:14] Speaker 04:
Our concern is that the relevant factors be considered that include the consistency of the agency's actions, the history of the statutes.

[00:09:22] Speaker 04:
The current situation, we have no statistics on whether this program has been effective or not, how effective it might be without the mandatory nature.

[00:09:30] Speaker 04:
We have no idea how many appeals are coming.

[00:09:32] Speaker 04:
But I see your point, Your Honor, that these are necessarily included in some of the other petitions.

[00:09:37] Speaker 03:
And that's my problem.

[00:09:40] Speaker 03:
And I'll ask the other side to hypothetical the other way, because none of us are on the other panels.

[00:09:45] Speaker 03:
So assume, is there just one other panel?

[00:09:50] Speaker 03:
There's just one other panel, right?

[00:09:51] Speaker 03:
But it's in multiple cases.

[00:09:53] Speaker 04:
Yes, there are three petitioners that argue before the other panel.

[00:09:55] Speaker 03:
So assume that panel comes out and rules against you, and agrees that this was not arbitrary or capricious, or that there was a reasonable basis

[00:10:07] Speaker 03:
for the change, what is left that you could argue to us where we wouldn't be bound by that determination?

[00:10:15] Speaker 04:
Well, Your Honor, that's a good question.

[00:10:17] Speaker 04:
I think that the 3.157 question was not specifically raised, although if the other panel approves of the entire rulemaking, then we probably have a really interesting en banc petition on all of our hands, right?

[00:10:30] Speaker 04:
So given what the other panel, there was a lot of

[00:10:35] Speaker 04:
on the informal claims process, the removal of the informal claims process, and I think 3.157.

[00:10:42] Speaker 03:
Which would directly address the two problems you just identified.

[00:10:45] Speaker 04:
Right.

[00:10:46] Speaker 04:
The 3.157 is, because it was one small, it doesn't fall under the huge, like I said, it's a very specific sort of a situation, but I think you're absolutely correct.

[00:10:55] Speaker 04:
If the other panel rules first, then we have a very different problem on our hands.

[00:10:59] Speaker 03:
Meaning that you

[00:11:01] Speaker 03:
you would have to go on bonk.

[00:11:03] Speaker 03:
So we would have to seek an on-bonk consideration.

[00:11:05] Speaker 03:
And the best you could get from us is we're bound by them, but we might not have come out the same way?

[00:11:11] Speaker 04:
I suppose we could ask you to hurry, maybe.

[00:11:16] Speaker 04:
I apologize, Your Honor.

[00:11:18] Speaker 03:
That's OK.

[00:11:19] Speaker 04:
But yeah, we have ended up, and I have to tell you, speaking only for us, we were unsure how the court would handle this or if we would have the same panel.

[00:11:29] Speaker 03:
Did you ask to have the cases consolidated before a single panel?

[00:11:34] Speaker 04:
The court, of course, is familiar with the DAV case.

[00:11:38] Speaker 04:
And I think you had a situation where the two filers who are here today, we followed DAV to the letter and waited to the effective date of the regulation before filing our petitions.

[00:11:51] Speaker 04:
I think the other filers did not do that.

[00:11:54] Speaker 04:
And for whatever reason, it proceeded in parallel.

[00:11:58] Speaker 04:
So we, of course, at each step, we all knew there would be related cases.

[00:12:01] Speaker 04:
So we didn't, you know, file a statement.

[00:12:03] Speaker 03:
I mean, it says that in, you know, the jurisdictional statement in this brief.

[00:12:06] Speaker 03:
I don't know whether it says it in the jurisdictional statement of the other briefs.

[00:12:10] Speaker 03:
But I did look, but I can't remember.

[00:12:15] Speaker 03:
But I guess, but you never filed a motion asking to have them consolidated or to delay those, the hearing on those?

[00:12:24] Speaker 04:
No, Your Honor.

[00:12:25] Speaker 04:
No, we did not.

[00:12:26] Speaker 04:
Well, obviously, we can't delay the hearing at this stage.

[00:12:29] Speaker 04:
And I'm honestly not sure what the correct procedural thing would have been to do, since all the parties made the clerk's office aware that the cases were related.

[00:12:38] Speaker 00:
OK.

[00:12:38] Speaker 00:
So we will have to figure that out.

[00:12:40] Speaker 00:
But meanwhile, let's hear from the government on this one.

[00:12:50] Speaker 00:
Thank you.

[00:12:50] Speaker 00:
Mr. Hoppe.

[00:12:51] Speaker 01:
Yeah, please, the clerk.

[00:12:54] Speaker 01:
So yes.

[00:12:56] Speaker 01:
The same rulemaking was heard in October in Boston.

[00:13:00] Speaker 00:
Did the government attempt to consolidate these various appeals?

[00:13:05] Speaker 01:
What happened is, in that case, the court was informed at various times through motions, although the panel wouldn't have necessarily been informed because the motions obviously take place before the signing.

[00:13:17] Speaker 01:
But the clerk's office was informed of the relationship of the parties because what happened here, as Ms.

[00:13:22] Speaker 01:
Baja correctly explained,

[00:13:23] Speaker 01:
The first three parties filed the language of 47.3, which indicates that you file your petition within 60 days of issuance of a regulation, whereas PVA and DAV followed this court's guidance in, I think, with the DAV case, in which it indicated that you could also file within 60 days of the effective date.

[00:13:40] Speaker 01:
And here, the agency intentionally created a six-month gap between the issuance of the regulation and the effective date to help get up to speed and also, hopefully, to have resolved any petitions before this court.

[00:13:53] Speaker 01:
So the overlapping briefing took place.

[00:13:58] Speaker 01:
We had all consulted the five, I guess six of us, the government and the five parties to file some more formal notice when before the brief, it was almost immediately after the joint appendix were filed in the first three, the case was counted like the next month or for the October session.

[00:14:16] Speaker 01:
So that sort of took us, you know,

[00:14:19] Speaker 01:
We thought we would have a time of a week or two after we filed the JAH to get that in because typically the court's busy and things don't get calendared immediately, but those three cases got calendared immediately.

[00:14:31] Speaker 01:
So we, you know, informed the panel up in Boston that these are the two cases that were in Hopper.

[00:14:37] Speaker 00:
All right.

[00:14:38] Speaker 00:
So let's proceed with this case and we'll have to see where it takes us because I've been wanting to ask the government what happens if at non-compliant?

[00:14:48] Speaker 00:
notice NOD is filed by a veteran.

[00:14:55] Speaker 00:
That is, it's just a letter.

[00:14:56] Speaker 00:
They got it wrong.

[00:14:57] Speaker 00:
The sort of thing that I gather happens from more often than not.

[00:15:02] Speaker 01:
The regulations would provide that if you submit something that's not even on the form, then it won't be recognized.

[00:15:10] Speaker 00:
If it's not on the form, so if someone follows the prior procedure for what happens, is that person supposed to go to the Code of Federal Regulations

[00:15:18] Speaker 00:
read them and figure out what should have been done?

[00:15:21] Speaker 01:
Well, see, what happens is that, and there's an example in the joint appendix, or actually in the full record, which the court asked for, what happens is that the actual document is attached to the decision.

[00:15:33] Speaker 01:
So when the person gets the adverse decision from the regional office, attached to the back of it are two pages of instructions telling them how to fill it out and the form itself.

[00:15:43] Speaker 01:
So it's provided with the decision.

[00:15:45] Speaker 01:
If, for some reason, and the VA is supposed

[00:15:48] Speaker 01:
in its own files, note whether they've included this information with the final decision.

[00:15:55] Speaker 01:
If the VA does not, note that.

[00:15:57] Speaker 01:
In other words, if the VA does not include the form with the decision so that the person has it when they get the decision and can fill it out, then that person can just submit a piece of paper and the VA has to accept it because they didn't serve him with proper form.

[00:16:11] Speaker 00:
The record, as you know, you responded to our request for the record.

[00:16:15] Speaker 00:
Correct.

[00:16:17] Speaker 00:
There is correspondence from veterans saying, what about a homeless person?

[00:16:22] Speaker 00:
What about this or that?

[00:16:23] Speaker 00:
Somebody who is sufficiently disadvantaged to have requested assistance from the VA in the first place.

[00:16:31] Speaker 00:
And so gets an adverse decision with a couple of pages of fine print and writes a letter, says, I want to appeal.

[00:16:38] Speaker 00:
Can you throw him out because he didn't use the form?

[00:16:44] Speaker 01:
The rules would require that eventually that person would have to submit the form.

[00:16:49] Speaker 00:
How did you get from there to there?

[00:16:52] Speaker 00:
Does he get a response?

[00:16:57] Speaker 01:
If he submits a blank piece of paper, the folks in the field, I'll clarify, the understanding is that the VA is supposed to notify him that you've submitted the wrong form.

[00:17:07] Speaker 01:
But that's not what the regulation specifically provides.

[00:17:10] Speaker 01:
There's no duty necessarily.

[00:17:11] Speaker 01:
I'm not trying to suggest that there is.

[00:17:13] Speaker 02:
And then you'll argue presumption of regularity, even though the VA can't prove they gave them the form.

[00:17:19] Speaker 01:
If the VA can't prove that they gave them the form, then they, by regulation, have to accept the piece of paper.

[00:17:27] Speaker 01:
That's plain.

[00:17:27] Speaker 01:
How do they prove it?

[00:17:29] Speaker 01:
They have to document that when they sent out the decision, in their files, they have to note that the decision was sent to include the NOD attached to the decision.

[00:17:38] Speaker 01:
box that they check?

[00:17:39] Speaker 01:
Is that how it works?

[00:17:40] Speaker 01:
It's in the VA's files that they would have a copy of what they sent out.

[00:17:44] Speaker 01:
And they would look to see that they sent the decision.

[00:17:46] Speaker 01:
And if someone says later that I never got the decision, the VA looks back and can't establish through their records that there was a decision.

[00:17:54] Speaker 01:
The regulation says they're allowed to file under 20.201B, which is the old way.

[00:18:01] Speaker 01:
But to answer Judge Newman's question, eventually what will happen for the person who has been provided the form

[00:18:07] Speaker 01:
but for whatever reason doesn't fill it out and send it back.

[00:18:11] Speaker 01:
The determination, they have to at some point file the form.

[00:18:14] Speaker 01:
So the VA will have to give it to them or they'll have to get it off the internet or from a PVA or DAV or somebody.

[00:18:20] Speaker 01:
Once that's done, then they're part of the old appeal process.

[00:18:25] Speaker 01:
And the board, although the regulations have determined that the board no longer will review

[00:18:33] Speaker 01:
whether something is adequate, if the person has been provided the form, they still retain the authority to determine timing.

[00:18:39] Speaker 01:
And as part of that, they use the full panoply of tools at their disposal to determine whether somebody is delayed because they weren't provided the right form.

[00:18:48] Speaker 01:
They're still able to do that under the regulations.

[00:18:52] Speaker 03:
So you agree that all the timelines in the regulations for purposes of the veterans filings are subject to equitable tolling?

[00:18:58] Speaker 01:
I agree that the Supreme Court in Henderson has told 7266, which is the statute, obviously the court is aware, for appeals to the Vectors Court.

[00:19:08] Speaker 01:
I don't believe there's a decision yet by anybody with respect to this particular time period.

[00:19:13] Speaker 01:
I would not want to bet against the application of tolling on the NOD.

[00:19:18] Speaker 03:
Well, what's the VA's position?

[00:19:21] Speaker 01:
We would have to brief that should that issue arise.

[00:19:24] Speaker 01:
And I believe Henderson would be very instructive in our briefing process, but I don't think we formed a position as to whether or not it's tollable.

[00:19:34] Speaker 00:
Now, what happened to the Houston pilot study?

[00:19:37] Speaker 00:
That wasn't included in the record that we received.

[00:19:41] Speaker 01:
The Houston pilot study was, for a period of time, the VA added the Notice of Disagreements to the decisions to see if people would return them.

[00:19:50] Speaker 01:
You actually used them.

[00:19:50] Speaker 01:
But it was non-mandatory.

[00:19:53] Speaker 01:
because they couldn't make it mandatory, because they needed a rule to make it mandatory.

[00:19:56] Speaker 01:
So they did that.

[00:19:58] Speaker 01:
And they compiled the results of that, indicating that around 50% or so of the folks who got these NODs returned them without even being told that they had to return them.

[00:20:09] Speaker 00:
How come that wasn't included in the record?

[00:20:11] Speaker 00:
Was that an oversight?

[00:20:13] Speaker 01:
Well, we attempted to find some documentation at a summary level, but couldn't.

[00:20:18] Speaker 01:
We considered trying to determine whether we would

[00:20:21] Speaker 01:
and apologize.

[00:20:22] Speaker 01:
We actually had this conversation.

[00:20:25] Speaker 01:
The best way to prove it would be to provide all of the decisions and all of the notice of the disagreements.

[00:20:30] Speaker 01:
But we felt that was simply, first of all, the decision makers in this process never had any of that information.

[00:20:37] Speaker 01:
That was the source material.

[00:20:38] Speaker 01:
And it would have been highly burdensome because it would all have been heavily redacted because it's all personal to each individual veteran.

[00:20:45] Speaker 01:
So we didn't include

[00:20:46] Speaker 01:
that source material, like I said, primarily because the decision-makers didn't rely on the actual documents.

[00:20:52] Speaker 03:
But the decision-makers did rely on the Houston study.

[00:20:54] Speaker 01:
Well, the decision-makers had the study, yes, which indicated that people could return the form.

[00:21:01] Speaker 00:
You said it was not mandatory in Houston, and therefore how could that have shown what would have happened if it had been mandatory?

[00:21:09] Speaker 01:
I think the concerns were, well, the reason, first of all, let's step back,

[00:21:15] Speaker 01:
The rationale behind this is efficiencies gained from using standardized forms.

[00:21:20] Speaker 01:
That, the VA believes, is intuitive.

[00:21:22] Speaker 01:
We do it all the time.

[00:21:24] Speaker 01:
In fact, in the military especially, is an occupation related to forms.

[00:21:29] Speaker 01:
From the day you start, you fill out a form.

[00:21:32] Speaker 01:
To the day you leave, you fill out a form.

[00:21:34] Speaker 01:
So the concept of gaining efficiencies through the use of standardized forms wasn't one that I don't think anybody needed to necessarily verify through some kind of study.

[00:21:43] Speaker 01:
But the VA did go ahead

[00:21:45] Speaker 01:
in the NOD context and send these things out to see whether people were able to fill them out and send them in.

[00:21:50] Speaker 00:
So it was helpful.

[00:21:52] Speaker 00:
The concerns that have been raised, here you have an organized group of regional offices in Houston and another structure.

[00:22:00] Speaker 00:
But now that this is going to be nationwide, according to the popular press, there is a shockingly harsh number of homeless veterans who therefore wouldn't get the mail, wouldn't know.

[00:22:14] Speaker 00:
that they have to consult the Federal Register and get a form, and all the rest of it.

[00:22:21] Speaker 00:
And that's why I asked, what happens if, in fact, they manage to cross this transition of letting the VA know that they think that there was a mistake, something or other wasn't considered, or something has gotten worse, or whatever, and they don't, let's say the VA says, here, fill out this form, and they don't get the mail, are they out on the street again?

[00:22:44] Speaker 00:
At present, as I understand it, there is a conscious effort, affirmative effort, to assist, to find, to fill the gaps, to facilitate the veterans of filing the claims that they feel that they ought to be filing.

[00:23:05] Speaker 00:
And the bit of the record that you sent us has

[00:23:10] Speaker 00:
commentary, some comments saying yes or the form is great makes it easier and commentary saying it's bad enough as it is and now you're imposing two pages of fine print and so on.

[00:23:24] Speaker 00:
The question in my mind is that if in fact there is, I don't want to say reasonable chance, enough of a chance that this is affecting veterans adversely

[00:23:40] Speaker 00:
How is the VA responding to that?

[00:23:42] Speaker 01:
Well, first of all, let me answer that question first, Your Honor, because it's often the case, the VA is in the mission of helping veterans.

[00:23:51] Speaker 01:
So certainly if the statistics would show after having this now been implemented a year actually, because it was implemented last March, that people were having issues communicating with the VA because of this change, then the VA

[00:24:05] Speaker 01:
would do something about it.

[00:24:07] Speaker 01:
That is our mission.

[00:24:09] Speaker 01:
Our mission is to help the veterans.

[00:24:10] Speaker 01:
We're not interested in depriving veterans of access to the VA.

[00:24:14] Speaker 01:
We're interested in trying to help them.

[00:24:16] Speaker 01:
I will respond to the predicate of your concerns about homeless veterans and other situations like that in that all along there is an element of having to have an ability to tell the VA where you are so that the VA can communicate with you.

[00:24:33] Speaker 01:
Even under the old system, you needed to have a mailbox address so that the VA could send you the decision.

[00:24:39] Speaker 01:
And you needed to have access to the postal service so that you could send them your communications.

[00:24:44] Speaker 01:
So the standardized forms doesn't change that.

[00:24:46] Speaker 01:
You still go to your postal service and instead of, and you get the form, the VA is attached to the document and you fill it out and you send it back through the same postal service.

[00:24:55] Speaker 00:
Yes, and we have seen those cases.

[00:24:57] Speaker 00:
Generally, they arise in the context of retroactive dates where there's some

[00:25:02] Speaker 00:
lost notice or lost mail can eventually inure to the benefit of a veteran?

[00:25:07] Speaker 01:
So yes, in those cases what happens is at some point in the process the veteran had a mailbox address and was communicating with the VA and then yes, the veteran goes off the grid so to speak and doesn't prosecute the claim because of their conditions.

[00:25:25] Speaker 01:
Real conditions, we're not minimizing them at all and then comes back later.

[00:25:29] Speaker 01:
And yes, there are cases and laws

[00:25:31] Speaker 01:
that are available to the veteran to try to help that veteran obtain the most maximum benefits possible under the system, given everything else, the constraints and whatnot.

[00:25:42] Speaker 01:
Those things has been suggested in all five petitions about this court's Roberson decision or Comer decision.

[00:25:51] Speaker 01:
None of those cases are affected here.

[00:25:53] Speaker 01:
The duty to assist, the duty to help, all those things survive this rulemaking.

[00:25:58] Speaker 01:
This rulemaking is simply about trying to make it

[00:26:01] Speaker 01:
easier for, in some respects, really, it is easier for the veteran.

[00:26:05] Speaker 01:
To go back to your example.

[00:26:07] Speaker 03:
Let me give you an example.

[00:26:09] Speaker 03:
We recently had a case where the veteran claimed stomach problems, and the VA took the opinion that that didn't include irritable bowel syndrome.

[00:26:19] Speaker 03:
But a veteran doesn't necessarily know what a specific diagnosis is.

[00:26:24] Speaker 03:
So what if the veteran writes stomach problems on this form?

[00:26:27] Speaker 03:
Could the VA now say that anything that doesn't

[00:26:31] Speaker 03:
fall within just a very small version of generic stomach problems is now completely excluded because the form.

[00:26:39] Speaker 01:
No, no, no.

[00:26:42] Speaker 01:
And once again, no.

[00:26:45] Speaker 01:
The reference that all five petitioners rely upon in the rulemaking in the commentary was to distinguish between the situation in which somebody comes in who is seeking benefits filed a claim for a knee condition.

[00:26:59] Speaker 01:
And they may just describe it as a knee condition.

[00:27:02] Speaker 01:
And that's another part of the record we've explained that in the specificity part for the NOD, which was challenged and discussed up in Boston, you're not required to identify that I have a medial lateral slight tear of the left or the ligament or whatever.

[00:27:17] Speaker 01:
I don't even know, although I had that evidence.

[00:27:21] Speaker 01:
But all you have to do is say, I have a knee problem.

[00:27:23] Speaker 01:
And although whatever it is that's causing your knee problem is within the scope

[00:27:28] Speaker 01:
of what the VA is supposed to do to try to figure out what's wrong with you.

[00:27:32] Speaker 01:
I know the case you're talking about, Your Honor, and there was some argument about some medical reason why irritable bowel syndrome was unrelated to the stomach that's beyond me.

[00:27:40] Speaker 01:
But the point of this regulation is that, no, those requirements, including the case you referenced, apply to the VA's development of claims.

[00:27:48] Speaker 01:
Now, what's different, and this is what the comment in the comment was, that doesn't mean that somebody who comes in and says files a claim for knees,

[00:27:58] Speaker 01:
and as having it adjudicated and developed.

[00:28:02] Speaker 01:
And as part of that adjudication says, my private doctor has some documents.

[00:28:05] Speaker 01:
Here, go get them, as the VA does under 5103, capital A. They go out and ask the doctor, could you please bring me the medical files for patient Doe?

[00:28:15] Speaker 01:
Those medical files come in, and they're all about the knee.

[00:28:17] Speaker 01:
And then there's this one document where a claimant Doe went in five years earlier to complain about his shoulder.

[00:28:25] Speaker 01:
But there's no claim for a shoulder.

[00:28:27] Speaker 01:
There's never been any suggestion by the claimant that he's ever seeking any relief from the shoulder.

[00:28:31] Speaker 01:
What the VA was concerned about was that would put some onus on the VA to somehow create a claim for shoulders when there had been no claim made.

[00:28:39] Speaker 01:
Going back to how Judge Mayer described the original NOD years ago, that hasn't changed.

[00:28:44] Speaker 01:
You have to have a claim for something.

[00:28:47] Speaker 01:
If it's the knee,

[00:28:48] Speaker 01:
the VA is going to figure out what's wrong with your knee and if you don't know how to describe it, they're going to figure out how to describe it and they're going to compensate you for it to the extent it's related to your service.

[00:28:56] Speaker 01:
That doesn't mean that simply through the process of development where something comes in and it has absolutely nothing to do with your claim or can't be arguably related to your claim.

[00:29:06] Speaker 01:
If it could be arguably related to the claim, then it would be within the scope.

[00:29:10] Speaker 01:
But if it can't be, then

[00:29:13] Speaker 01:
the VA doesn't have a duty at that point to somehow have done something with respect to that extraneous reference.

[00:29:20] Speaker 01:
That's sort of the genesis of the comment.

[00:29:23] Speaker 01:
And everyone thought, I think, in the briefing that what VA was trying to do was walk away from Roberson and Comer.

[00:29:29] Speaker 01:
And we aren't.

[00:29:30] Speaker 01:
And we said that before.

[00:29:31] Speaker 03:
So if a veteran is suffering from multiple disabilities and doesn't know what all of them are, they've really at least got to get in the ballpark?

[00:29:43] Speaker 01:
The development, they have to come in and I mean, I think most veterans know they can describe what's bothering them.

[00:29:50] Speaker 01:
I mean, something's wrong with me, my legs aren't working or my heart beats weird, you know.

[00:29:56] Speaker 01:
That's all they have to do is to identify what it is.

[00:29:59] Speaker 01:
In many of these cases, they'll have been to the doctor and had some sort of diagnosis about whatever it is that they have.

[00:30:06] Speaker 01:
And those folks obviously can just state, well, I went to the doctor and he says I have this and I think it's related to that time I jumped out of the airplane.

[00:30:13] Speaker 01:
That's the level that we're at here, which these are distinguished members of our military, and they've been through this, and they can usually tie what it is that they're complaining about.

[00:30:25] Speaker 01:
Now, folks who are undergoing mental problems, having mental issues, you know, that's always going to be a challenge for everybody on both sides, and hopefully they have help, but when they don't, and articulating the claims, when they don't, the VA tries to go in and help them figure out what it is exactly.

[00:30:41] Speaker 00:
The next case, as announced, is on the same subject matter, except that we have a different appellant.

[00:30:48] Speaker 00:
I know that you're defending both, and we have, I think, overlapped in our questions.

[00:30:53] Speaker 00:
So let's move on to the next question, as brought by the disabled veterans.

[00:30:59] Speaker 00:
And the difference between them, as far as we could tell, is that to concentrate, in this case, on whatever the impact of the Houston pilot study might have been, and then to

[00:31:11] Speaker 00:
talk some more about the effect on vulnerable veterans.

[00:31:16] Speaker 00:
So let's proceed with the bit of rebuttal that concentrated, perhaps, on the Houston pilot study.

[00:31:24] Speaker 00:
And then we'll go on to the next case and ask you the rest of the questions that we'll think of between now and then.

[00:31:34] Speaker 00:
OK, so Ms.

[00:31:35] Speaker 00:
Blauwacht, you have five minutes for rebuttal.

[00:31:37] Speaker 00:
Thank you, Your Honor.

[00:31:39] Speaker 04:
I think we've established that there's really not much to look at with the Houston study because whatever study was produced that the people promulgating this rule looked at has not been made available to the rest of us.

[00:31:50] Speaker 03:
Was there a request for it?

[00:31:52] Speaker 03:
Or do you read the APA rules to say that it must just always be produced regardless of a request?

[00:32:00] Speaker 04:
Well, I guess when we saw the rulemaking record, we would have had assumed it was part of the information that the agency had considered in the rulemaking and would have been presented.

[00:32:10] Speaker 04:
I know that members of Congress apparently have requested it, and it has not been provided to them either.

[00:32:15] Speaker 04:
So I honestly have no information on what the sort of status of it is, except that we don't know how many claims.

[00:32:22] Speaker 04:
There are all those normal questions that you might have to check against it, to check your data against.

[00:32:26] Speaker 04:
We have no way to answer them because we don't know what the raw numbers were or what the report was.

[00:32:30] Speaker 04:
that was provided.

[00:32:31] Speaker 04:
I can tell you from our Houston service officer, however, that they have monthly meetings, apparently, in Houston.

[00:32:37] Speaker 04:
And apparently, there has not been any great improvement in the processing numbers in Houston itself, which I thought was sort of interesting.

[00:32:45] Speaker 04:
Just to get back to a moment, though, on the differences amongst our petitions, I do want to clarify, our petition did not cite the Roberson or Comer line of cases.

[00:32:55] Speaker 04:
I would like to go back to your question, Judge Newman, about what about the veteran who doesn't get the form or who doesn't file the form.

[00:33:04] Speaker 04:
The form is in the joint appendix at 295, beginning at 295.

[00:33:09] Speaker 04:
And under the new regulation, 19.24B4, either a veteran who does not file the form or a veteran who files the form, but maybe the VA still has some confusion about it and does not refile the form.

[00:33:23] Speaker 04:
that claim will become final under that provision.

[00:33:25] Speaker 04:
So final and unappealed.

[00:33:27] Speaker 04:
And this brings me to one other thing that distinguished our petition from others is, you know, obviously we pride ourselves on our representation of our members and other veterans nationwide.

[00:33:37] Speaker 04:
And the use of this form has created an, I'll call it an unforeseen consequence, where the VA, in order to clarify the form, is contacting represented veterans without contacting their representatives.

[00:33:51] Speaker 04:
and then either modifying their appeals and, in some cases, withdrawing their appeals.

[00:33:55] Speaker 04:
Unofficially, I've spoken to attorneys who practice in this area as well.

[00:33:59] Speaker 04:
And apparently, it doesn't matter whether the veteran is represented by a VSO or by an attorney within the system.

[00:34:05] Speaker 04:
So you have this off-the-record ex parte contact going on, which then may change the course of the appeal.

[00:34:11] Speaker 04:
Now, the stories I've heard about from my service officers, or the instances, I should say,

[00:34:17] Speaker 04:
In those cases, the service officer has been able to go back to regional office personnel and either re-institute the appeal or you'll get the appeal back in the correct status as the veteran proceeds through their claim.

[00:34:29] Speaker 04:
But we want to bring that to the court's attention because I think this, VA does a lot in a lot of areas a lot of times.

[00:34:35] Speaker 04:
This rulemaking was overlapped with another rulemaking for what they call the regulation rewrite project.

[00:34:41] Speaker 04:
So it's a huge agency.

[00:34:43] Speaker 04:
There's always a lot going on, which I think also means that maybe sometimes things get lost in the haste to do things in a particular way.

[00:34:50] Speaker 04:
And so these are the issues we wanted to bring to the court's attention, because I think they were either overlooked or unintended, yet I believe they are important to how veterans are able to prosecute their claims and appeals.

[00:35:01] Speaker 04:
And if the court has no further questions, we ask our petition be granted.

[00:35:04] Speaker 00:
OK.

[00:35:05] Speaker 00:
Thank you, Ms.

[00:35:06] Speaker 00:
Bell.