[00:00:00] Speaker ?:
Okay.

[00:00:34] Speaker 01:
Next case is Roberto Sanchez Navarro for Assistant Secretary of Veterans Affairs 2015 7075.

[00:00:43] Speaker 01:
Ms.

[00:00:46] Speaker 01:
Simpson.

[00:00:51] Speaker 05:
Good morning, Your Honors.

[00:00:53] Speaker 05:
If it pleased the Court, the issue before the Court today is whether the Veterans Court erred in its interpretation of

[00:01:01] Speaker 05:
38 CFR 3.304 F3.

[00:01:03] Speaker 01:
Isn't the question whether the case was final, and therefore whether we have jurisdiction?

[00:01:12] Speaker 05:
Well, there are two issues.

[00:01:13] Speaker 01:
But to the extent that... Well, we don't get to the second issue if the case wasn't final.

[00:01:18] Speaker 05:
Understood, Your Honor.

[00:01:19] Speaker 05:
To the extent that the court has jurisdiction, the appellant cements that it does.

[00:01:25] Speaker 05:
And as we argued in our brief, this court remanded

[00:01:32] Speaker 05:
Previously, December 24, 2014, remanded this case back to the Veterans Court to make a specific decision as to whether the veterans in-service stressors were consistent with the place, time, and circumstances of treatment.

[00:01:49] Speaker 02:
In general, a remand by the Veterans Court to the board is a non-final decision which is not reviewable by us.

[00:01:55] Speaker 02:
Why is this different?

[00:01:57] Speaker 05:
Well, the reason why it's different, first of all,

[00:02:02] Speaker 05:
To the extent that we have a clear and final legal decision, when the lower court remanded it to the board, they made an interpretation of the law which will, if allowed to go forward with this remand to the board, will have a substantial risk that the board will move this issue

[00:02:31] Speaker 04:
What is that substantial legal risk?

[00:02:33] Speaker 05:
The substantial legal risk is that the question on appeal today, whether this proviso is a question of law for the court to decide or a question of fact for the VA to decide.

[00:02:46] Speaker 03:
What would prevent us from deciding that after a remand and a final judgment?

[00:02:52] Speaker 05:
If the case is remanded and it goes back to the board, the legal question will be avoided altogether because

[00:02:59] Speaker 05:
The lower court, the veterans court, is telling the board that it is a factual question under the law.

[00:03:06] Speaker 05:
And the claim could also be decided to the veterans detriment in the lower court.

[00:03:14] Speaker 04:
But if it's decided to the veterans detriment, and you appeal to the veterans court, and you say, one, the board decided this erroneously a matter of fact, and two, the veterans court should have decided this as a matter of law, and you lose, it's going to come back to us, isn't it?

[00:03:27] Speaker 05:
It could eventually come back.

[00:03:30] Speaker 04:
Then how does it decide off question of law that can't be raised later on appeal after final judgment?

[00:03:38] Speaker 04:
To the extent that the... I mean it seems to me you're arguing that since it's a legal question we should short circuit the remand process

[00:03:50] Speaker 04:
and decide it now so you don't have to go through the remand.

[00:03:53] Speaker 04:
But we've rejected that argument on numerous occasions as meeting the Williams criteria.

[00:04:01] Speaker 04:
Haven't we?

[00:04:03] Speaker 05:
Well, in this case, the Veterans Court is telling the board that the law is contrary to what this court instructed the Veterans Court to do.

[00:04:20] Speaker 04:
So there's also the question of... Even if that's the case, it's still a non-final order.

[00:04:27] Speaker 04:
The extent of what you're asking us is pretty remarkable.

[00:04:32] Speaker 04:
It would be that any time the court remands to the board with an incorrect statement of law, you can immediately appeal, even if you could

[00:04:43] Speaker 04:
address that legal argument later on appeal.

[00:04:46] Speaker 04:
It may be that that legal argument becomes unnecessary because you win on remand.

[00:04:51] Speaker 04:
That's why we have this non-final order principle that it goes back to the board and they may award you benefits.

[00:04:59] Speaker 04:
And then this appeal would have been obviated altogether.

[00:05:03] Speaker 05:
So to the extent that that's the case, there's also the question of whether

[00:05:10] Speaker 05:
the Veterans Court failed to comply with the mandate of this court.

[00:05:15] Speaker 05:
And that is a legal question that this court does have jurisdiction over.

[00:05:21] Speaker 05:
And to the extent that they did, the law requires strict compliance.

[00:05:26] Speaker 04:
But we still would have jurisdiction to hear that after final appeal, wouldn't we?

[00:05:31] Speaker 04:
The question of whether... Whether the court and the board complied with our mandate.

[00:05:40] Speaker 05:
Procedurally, the question is right now.

[00:05:44] Speaker 05:
The remand would go back to the board.

[00:05:48] Speaker 05:
A different decision, presumably, would be made.

[00:05:51] Speaker 05:
Then it would be appealed back to the Veterans Court.

[00:05:56] Speaker 05:
We're beyond the point in time when that issue is right for this court to address whether the mandate was complied with, to the extent that because in this case, the court

[00:06:10] Speaker 05:
gave a very specific instruction to the Veterans Court, which was to make a decision as to whether the historical facts of time, place, and circumstance are consistent with the Veterans Claims strategy.

[00:06:25] Speaker 04:
So if after remand and again on final appeal, you determine that the Veterans Court didn't comply with our mandate and you make that argument to us, we can address it, can't we?

[00:06:35] Speaker 05:
Well, there's a second part of the mandate rule, which is

[00:06:39] Speaker 05:
that if there's no undecided issues before the Veterans Court, they don't have discretion to be remanding.

[00:06:49] Speaker 05:
This question of whether it was a, the question of law was already decided here at the Federal Circuit.

[00:06:57] Speaker 05:
The Federal Circuit said to the Veterans Court, you, Veterans Court, make this decision.

[00:07:03] Speaker 05:
You, Veterans Court, make this decision.

[00:07:05] Speaker 05:
It is a question of law for the Veterans Court to make.

[00:07:07] Speaker 05:
There were no other issues.

[00:07:09] Speaker 05:
except the question of this 3.304 F3.

[00:07:13] Speaker 04:
Even if you're right, I don't think you are, but even if you are, that's all reviewable after appeal, isn't it?

[00:07:20] Speaker 04:
After remand and final decision.

[00:07:24] Speaker 05:
The question of mandate is right for appeal today.

[00:07:29] Speaker 04:
I don't know why you're saying this word right.

[00:07:31] Speaker 04:
It's not whether it's right or not.

[00:07:33] Speaker 04:
It's whether it's a final decision or fits within the narrow Williams criteria suitable for a review, which

[00:07:39] Speaker 04:
And that narrow non-final review criteria has to include the factor that it becomes unnecessary.

[00:07:49] Speaker 04:
It will essentially be overtaken after a remand.

[00:07:52] Speaker 04:
And that's not the case here.

[00:07:55] Speaker 04:
I mean, obviously if you win it is, but that's the case always if you win.

[00:08:01] Speaker 04:
I mean, are you saying that our mandate was so clear that it was

[00:08:04] Speaker 04:
you know, an exceptional circumstance and an abuse of discretion for the Veterans Court to remand further?

[00:08:10] Speaker 04:
If so, that sounds awful like a mandamus petition, not a direct appeal that fits within the narrow Williams criteria.

[00:08:19] Speaker 05:
Well, Your Honor, we're not arguing a mandamus petition.

[00:08:23] Speaker 05:
We are appealing the petition.

[00:08:24] Speaker 02:
Are you arguing that the remand was frivolous?

[00:08:28] Speaker 02:
Under, yeah.

[00:08:31] Speaker 02:
The issue of the scope of the mandate

[00:08:34] Speaker 02:
is not open to doubt.

[00:08:36] Speaker 05:
That is our argument.

[00:08:37] Speaker 05:
And to the extent that the direction to the court is completely clear, and there's no other issue to be decided, the court should not have remanded to the board for any decision as to the question of whether the veterans and service stressors are consistent with the place, time, and circumstances of service.

[00:09:01] Speaker 05:
is a question of law, not a question of fact, for the board to decide as the Veterans Court stated in their decision that is on appeal today.

[00:09:12] Speaker 01:
Ms.

[00:09:12] Speaker 01:
Simpson, in your remaining time, assuming we agree with you on jurisdiction, do you have a further point to make?

[00:09:19] Speaker 05:
Yes, Your Honor.

[00:09:20] Speaker 05:
Thank you.

[00:09:21] Speaker 05:
To the extent that when the court remanded to the board,

[00:09:26] Speaker 05:
and said that it was a question of fact for the board to decide this question of the consistency with the place, time, and circumstances of the veterans and service dressers.

[00:09:37] Speaker 05:
The fact is, it is a question of law that these issues are, as this court pointed out, the proviso is the first thing that has to be addressed when we're talking about PTSD claims under 3.304 F3.

[00:09:53] Speaker 05:
So first, the legal question of whether

[00:09:55] Speaker 05:
The inservice dressers are consistent with the place, time, and circumstance of service.

[00:10:01] Speaker 05:
It deals with historical facts that are already established, as this court instructed in its prior decision.

[00:10:07] Speaker 05:
The historical facts are the place, time, and circumstance.

[00:10:11] Speaker 05:
Those are already established by the veteran service record that he served from 1958 to 1959 in Korea in the Army along the... You're arguing that there's no fact issue involved here?

[00:10:24] Speaker 05:
There is not, with regard to the question of place, time, and circumstance.

[00:10:28] Speaker 05:
There is not.

[00:10:29] Speaker 05:
Because the facts are already established.

[00:10:31] Speaker 05:
The court does not have to make the ultimate determination of whether the facts occurred, whether this event was true.

[00:10:39] Speaker 04:
They still have to make the determination that those historical facts show stressors consistent with the manner of his service, right?

[00:10:46] Speaker 05:
Actually, it's the other way around.

[00:10:48] Speaker 05:
What the court has to determine is whether the claim stressors

[00:10:53] Speaker 05:
are consistent with the place, time, and circumstances.

[00:10:56] Speaker 04:
But that's a factual determination, isn't it?

[00:11:01] Speaker 04:
How is that a legal determination?

[00:11:02] Speaker 05:
Because the facts are already established.

[00:11:05] Speaker 04:
The basic facts are established, but you still have to determine whether the history of his service is consistent with his stressors.

[00:11:16] Speaker 05:
And those are also established.

[00:11:18] Speaker 05:
His stressors are in the record.

[00:11:20] Speaker 04:
But the connection between the two

[00:11:23] Speaker 04:
Just because all those are established doesn't mean the connection between the two is a legal conclusion.

[00:11:28] Speaker 04:
It's still a factual question, isn't it?

[00:11:30] Speaker 05:
I don't think that it is, Your Honor, because this is an element of the rule.

[00:11:37] Speaker 04:
This is an element that must be shown in order to... There are all kinds of rules that have factual elements.

[00:11:43] Speaker 05:
Yes, and there are more factual elements in this rule, but this is not one.

[00:11:48] Speaker 04:
In fact... What's your support for the notion that

[00:11:50] Speaker 04:
a connection between historical circumstances and the type of stressor is a legal question.

[00:11:56] Speaker 05:
Calusa versus Brown, another case decided by the Veterans Court, where they found that it is a legal determination.

[00:12:04] Speaker 05:
Calusa was a combat PTSD case, which predates this section of the PTSD rule.

[00:12:17] Speaker 05:
case, it was decided under 38 USC 1154B.

[00:12:22] Speaker 05:
And it's a similar determination.

[00:12:24] Speaker 05:
The court decided whether the combat stressors were consistent with the circumstances, conditions, or hardships of service.

[00:12:33] Speaker 05:
That's what the statute says, 1154B.

[00:12:37] Speaker 05:
So in Colusa... And they said that was a legal determination?

[00:12:40] Speaker 05:
The Veterans Court made the legal determination in that case.

[00:12:43] Speaker 04:
No, they said that conclusion specifically was a legal conclusion.

[00:12:48] Speaker 05:
Well, they made the decision.

[00:12:49] Speaker 05:
They made the legal decision in Caloosa.

[00:12:52] Speaker 04:
What legal decision did they make?

[00:12:54] Speaker 05:
They found that the veteran stressors were consistent with the circumstances, conditions, or hardships of service.

[00:13:00] Speaker 05:
And that wasn't determined by the board.

[00:13:02] Speaker 05:
It was determined by the court.

[00:13:04] Speaker 05:
So similarly, in this case, the regulation was developed in a similar

[00:13:14] Speaker 05:
pattern as this combat rule, which said circumstances, conditions, or hardships of service.

[00:13:21] Speaker 05:
Under 3.304 F3, the court has to determine whether it's consistent with the places, types, and circumstances of service.

[00:13:30] Speaker 05:
And after that, once the legal determination has been made, then it would have to be remanded back to the VA for a medical opinion.

[00:13:41] Speaker 05:
to determine whether the stressors support the PTSD.

[00:13:43] Speaker 04:
Wait a minute.

[00:13:44] Speaker 04:
So you're saying that even if the Veterans Court makes its legal determination, there still has to be a remand?

[00:13:50] Speaker 04:
And how can it possibly be non-final under Williams, or final under Williams?

[00:13:54] Speaker 04:
Because there still has to be a remand.

[00:13:56] Speaker 05:
Because it's not the jurisdiction of the VA to make the legal decision.

[00:14:05] Speaker 05:
This court specifically remanded for?

[00:14:09] Speaker 04:
It can't possibly be the case.

[00:14:11] Speaker 04:
that you can get an intermediate appeal to correct a legal error when a remand is still necessary to establish a claim, your ultimate claim for benefits.

[00:14:21] Speaker 04:
When the remand may resolve that altogether by ruling in favor of the veteran.

[00:14:28] Speaker 05:
With respect to the specific legal question, the remand is not necessary and will circumvent this court's previous remand order.

[00:14:38] Speaker 02:
In our remand order, we specifically contemplated that a board would have to make some of the determinations here, right?

[00:14:45] Speaker 05:
The remand order specifically ordered the Veterans Court to make... Can I answer my question?

[00:14:51] Speaker 05:
Yes, Your Honor.

[00:14:52] Speaker 02:
Our opinion contemplated, stated specifically that the board would have to make some of these determinations, right?

[00:14:59] Speaker 05:
That's correct, Your Honor.

[00:14:59] Speaker 05:
Those that would be properly within the jurisdiction of the VA.

[00:15:03] Speaker 05:
The questions of fact.

[00:15:07] Speaker 01:
Ms.

[00:15:08] Speaker 01:
Simpson, you've just about exhausted your time.

[00:15:10] Speaker 01:
We'll give you two minutes for rebuttal.

[00:15:12] Speaker 01:
Thank you, Your Honor.

[00:15:13] Speaker 01:
I'll stay here for Mr. Ashman.

[00:15:22] Speaker 00:
May it please the Court, Your Honor.

[00:15:25] Speaker 00:
The Veterans Court decision was not a final decision that this court may review.

[00:15:30] Speaker 00:
In addition to the issue of whether or not this court would ultimately have the opportunity to review the legal issue of consistency being legal or factual, with which we agree that there would ultimately be an opportunity on appeal to review that.

[00:15:46] Speaker 00:
Did Elusa say it was a legal issue?

[00:15:48] Speaker 00:
Your Honor, we're not as familiar with Colusa, but we do not believe that that

[00:15:54] Speaker 00:
issue was actually determined, whether or not consistency is legal versus factual if that specific issue was determined inclusively.

[00:16:02] Speaker 00:
I think when you come to argue, you should read the cases they sign.

[00:16:06] Speaker 00:
Yes, Your Honor.

[00:16:08] Speaker 00:
Your Honor, the second point in Williams, the Williams criteria that we don't believe is met here is that there is no adverse effect on Mr. Sanchez Navarro through the remand order.

[00:16:24] Speaker 00:
And this is because Mr. Sanchez-Nabara can obtain complete relief from the board, ultimately.

[00:16:32] Speaker 00:
There's no impediment to his claim being placed.

[00:16:38] Speaker 00:
There's no impediment being placed upon him in the advancement of his claim, Your Honor.

[00:16:44] Speaker 00:
And again, on appeal, he can appeal any adverse ruling from the board.

[00:16:49] Speaker 00:
And we think that this distinguishes the case that plaintiffs rely on Adams versus Principi.

[00:16:56] Speaker 00:
In that case, the court agreed to review that the remand was reviewable, because the Veterans Court, in that case, had dealt with the issue of, had the secretary rebutted the presumption of soundness?

[00:17:10] Speaker 00:
And the board found, excuse me, the board found, based on a doctor's opinion, that the secretary had rebutted the presumption of soundness.

[00:17:19] Speaker 00:
Now, that issue went to the Veterans Court, and the Veterans Court said, well, no, we think it's a little unclear what the doctor found.

[00:17:26] Speaker 00:
So the Veterans Court sent it back to the board to basically give the secretary a second bite of the apple in bolstering its rebuttal of the presumption of soundness.

[00:17:37] Speaker 00:
Here it's actually the opposite.

[00:17:38] Speaker 00:
What the Veterans Court is saying is,

[00:17:41] Speaker 00:
It's sending the case back to the board, but giving Mr. Sanchez-Namaro a further opportunity to develop the record on this issue of consistency.

[00:17:51] Speaker 00:
So we think that distinguishes this case from Adams, Your Honor, that actually this is beneficial to the veteran in this case to develop the record in which he has the burden in this case in establishing service connection.

[00:18:07] Speaker 00:
Unless there's no other questions on the jurisdictional piece,

[00:18:12] Speaker 00:
You're on the issue of whether or not this is a factual matter versus a legal issue consistency.

[00:18:18] Speaker 00:
The basic issue, the basic question before the Veterans Court or the board is, is there a service connection?

[00:18:25] Speaker 00:
And service connection under 3.303, that's a straightforward factual determination.

[00:18:32] Speaker 00:
Now consistency is a component of the broader service connection inquiry that has to be satisfied.

[00:18:40] Speaker 00:
And as the VA explained in its rulemaking when discussing what establishes consistency, it cites to the service connection regulation of 3.303 and then basically says these are historical facts that have to be found by looking at the service record, looking at the unit histories, that these are findings that have to be made.

[00:19:05] Speaker 00:
And we would also point out

[00:19:06] Speaker 00:
in the court's first decision in this case, the court also says that, in contrast, this is at page 1384, the first decision, in contrast, the proviso deals with historical facts, whether the claim stressor is consistent with the places, types, and circumstances of the veteran's services.

[00:19:24] Speaker 00:
So it's a factual inquiry that needs to be made by the board.

[00:19:28] Speaker 00:
And finally, we would also point out, Your Honor, that

[00:19:31] Speaker 00:
The board never actually made the record.

[00:19:33] Speaker 00:
The record was not developed under 3.303 F3.

[00:19:38] Speaker 00:
As the court noted in its first decision, the court said the board and the Veterans Court considered this case under the introductory paragraph of 3.304 F rather than under 3.304 F3 and simply determined that the Veterans' lay testimony was not credible.

[00:19:55] Speaker 00:
So when this case was first before the board, was first below,

[00:19:58] Speaker 00:
The record was not developed under the correct standard.

[00:20:02] Speaker 00:
So there isn't a record that was developed under 3.304 F3.

[00:20:10] Speaker 00:
Unless Your Honor is having any further questions, we respectfully request that the court dismiss this appeal for lack of jurisdiction or affirm the Veterans Court's opinion.

[00:20:20] Speaker 01:
Thank you, Mr. Ashman.

[00:20:22] Speaker 01:
Ms.

[00:20:22] Speaker 01:
Simpson has two minutes if you need them.

[00:20:30] Speaker 05:
Your Honor, briefly, I'd like to address the Secretary's contention that there were still factual determinations to be made under 3.303, the regulation that governs service connection.

[00:20:45] Speaker 05:
We agree that to establish service connection for any claim, historical facts have to be established.

[00:20:51] Speaker 05:
But in this case, as the appellant has already submitted to the court, those historical facts are in the record.

[00:20:59] Speaker 05:
There's no further need.

[00:21:01] Speaker 05:
This is not a factual question.

[00:21:02] Speaker 05:
And when those historical facts are in the record, as they are here, the place's types and circumstances are clear.

[00:21:10] Speaker 05:
The veteran was in Korea from 1958 to 1959 at the demilitarized zone.

[00:21:15] Speaker 05:
His military occupational specialty was a combat MOS.

[00:21:20] Speaker 05:
His record shows that he participated in guard duty along the DMZ.

[00:21:28] Speaker 05:
All of those facts are established.

[00:21:30] Speaker 05:
His stressors, which the rule does define as claimed stressors, so the presumption goes to the veteran until or unless the VA shows otherwise that they aren't true, are in the record.

[00:21:46] Speaker 05:
So there's no further factual development that needs to be done with respect to the proviso that the court

[00:21:54] Speaker 05:
said that the Veterans Court needed to determine which is what.

[00:21:58] Speaker 04:
So if all these facts are established, as you say, and there still needs to be a remand to the board to take the final step of making the determination whether he's entitled to benefits, then what's your objection to the remand?

[00:22:12] Speaker 04:
I mean, you've now, however many months you've taken up with this appeal, delayed the ultimate remand that still has to happen anyway without any real effect on what's going to happen.

[00:22:24] Speaker 05:
Your Honor, I see that my time is almost up.

[00:22:26] Speaker 05:
May I answer?

[00:22:27] Speaker 01:
Please answer the question.

[00:22:29] Speaker 05:
The problem is that the board is now able to make a separate decision as to the factual basis for these stressors and the place, time, and circumstance of the veteran's service.

[00:22:51] Speaker 05:
That's already been done.

[00:22:53] Speaker 05:
It is redundant and it leaves open the opportunity for the board to make a finding against the veteran, whereas it is not a question of fact for the board.

[00:23:04] Speaker 05:
It is a legal question for the court to make.

[00:23:09] Speaker 05:
And with that, Your Honors, I would submit respectfully that we request the court to find that the proviso under 3.304 F3 regarding the place, types, and circumstances of service as a question of the law

[00:23:22] Speaker 05:
for the Veterans Court to decide and to set aside the decision on appeal, remand for a decision consistent with.