[00:00:25] Speaker 00:
All right, the next case before the court.

[00:00:30] Speaker 00:
Do we have?

[00:00:33] Speaker 00:
Next case before the Court of Shields versus McDonald, case number 161072.

[00:00:39] Speaker 00:
This is an appeal from the decision of the Court of Veterans' Appeals.

[00:00:47] Speaker 00:
Mr. Walsh, you want five minutes for rebuttal?

[00:00:51] Speaker 01:
Yes, Your Honor.

[00:01:02] Speaker 00:
Okay, you may begin.

[00:01:04] Speaker 01:
If it please the court, I'm Robert Walsh.

[00:01:06] Speaker 01:
Mr. Shields apologizes because of his nature of his injury.

[00:01:10] Speaker 01:
It's very difficult for him to travel.

[00:01:12] Speaker 01:
He had a fractured pelvis and he doesn't really get on well.

[00:01:19] Speaker 01:
Also, Mr. Cushman is listening today.

[00:01:23] Speaker 01:
He's been interested in this case and he's in ill health and I wanted to say hello to him.

[00:01:30] Speaker 01:
Thanks to the court for

[00:01:31] Speaker 01:
bringing us on for oral argument.

[00:01:34] Speaker 01:
This case, as you notice, is pretty old.

[00:01:36] Speaker 01:
It's been going on for over a decade.

[00:01:40] Speaker 00:
It's a pretty complicated factual pattern, that's for sure.

[00:01:43] Speaker 01:
At the time, I've been doing this work on veterans benefits down at the regional office level for 30 years.

[00:01:52] Speaker 01:
Now in 2008, as the court knows, the law changed and you could actually get paid for doing that work.

[00:01:58] Speaker 01:
In my office, the largest recovery we ever had for a veteran ended up being pro bono publico because it was six months before the law changed.

[00:02:07] Speaker 01:
But in bringing these cases and in working down there, this sort of error, these notice failures, have been a persistent annoyance.

[00:02:21] Speaker 01:
And after we changed our address, they became more difficult.

[00:02:26] Speaker 01:
But since the institution of the Veterans Benefits Management System, since the computer has taken over and pushed the human factor out, I think a lot of the workers knew what our addresses were.

[00:02:38] Speaker 01:
And the system would go to print a label that was wrong, and I think they would override it.

[00:02:42] Speaker 01:
They're not anymore.

[00:02:43] Speaker 01:
And now, instead of having two of these a year, we're having two of these a week.

[00:02:49] Speaker 00:
Mr. Welsh, your gray brief was a bit of a tirade against the Veterans Administration.

[00:02:57] Speaker 00:
And don't get me wrong, I'm sure there are plenty of reasons for complaint.

[00:03:02] Speaker 00:
Having said that, most of what you talk about in that gray brief

[00:03:05] Speaker 00:
doesn't have anything to do with this case.

[00:03:07] Speaker 00:
And we are not Congress, we're not the Veterans Administration, we're not even the executive.

[00:03:15] Speaker 00:
I will understand that.

[00:03:16] Speaker 00:
So we have to look at the facts of this case.

[00:03:18] Speaker 01:
We have the cards that we have been dealt.

[00:03:20] Speaker 01:
Yes, ma'am.

[00:03:21] Speaker 00:
Right.

[00:03:21] Speaker 01:
And we have a factual question.

[00:03:24] Speaker 01:
Well, but the question also is, our council, our veterans, our veterans representatives entitled to actual notice

[00:03:34] Speaker 01:
each and every time.

[00:03:36] Speaker 01:
He's mulling for application.

[00:03:38] Speaker 04:
I thought that at the important time here in the 2003-2004 time frame, your client notified the VA that his former representative, American Legion, severed relationships.

[00:03:58] Speaker 04:
So that notice here that had to be given was noticed only to him.

[00:04:02] Speaker 04:
And the regulation, I think, says that it's supposed to be sent to the address of record.

[00:04:10] Speaker 04:
And the factual finding here is we don't have any reason to think it wasn't.

[00:04:21] Speaker 04:
And if, indeed,

[00:04:24] Speaker 04:
It was sent to the address of record and the VA didn't receive notice that that address was defective, because in this instance, unlike others, it didn't get the mail returned.

[00:04:39] Speaker 04:
What, as a constitutional matter, is defective about that notice?

[00:04:45] Speaker 01:
On a similar fact pattern, I had a client who was also a friend.

[00:04:51] Speaker 01:
And in the claims file, just as I discovered this statement of the case, I discovered a rating.

[00:04:56] Speaker 01:
This isn't in the record, is it?

[00:04:58] Speaker 01:
A rating.

[00:04:59] Speaker 01:
So I called Detroit, and they said, oh, the rating is in the file, but we never mailed it.

[00:05:06] Speaker 01:
The worker agreed.

[00:05:07] Speaker 01:
But that's not in the record before.

[00:05:09] Speaker 01:
No, but it's analogous to this.

[00:05:12] Speaker 02:
Your problem, I think, Mr. Walsh, is our standard of review.

[00:05:18] Speaker 01:
This is absolutely.

[00:05:21] Speaker 01:
a question of, again, it goes to the credibility of the veteran.

[00:05:27] Speaker 01:
But then when you look at the mangled and tortured record on beyond that, all the failures of notice, that the agency agrees.

[00:05:36] Speaker 01:
My friends agree.

[00:05:37] Speaker 01:
The other ones.

[00:05:38] Speaker 00:
Yes.

[00:05:38] Speaker 00:
You point to sloppiness.

[00:05:40] Speaker 00:
And where there was sloppiness after the relevant point in time here, they fixed it and sent it back.

[00:05:48] Speaker 00:
Right?

[00:05:49] Speaker 00:
Several times.

[00:05:50] Speaker 00:
But in this particular case, we have a mailing that on its face went to the address of record that was provided.

[00:05:58] Speaker 00:
And there is a presumption that when you have a reference to the mailing, and it's clear that the mailing occurred, that there was a presumption of regularity with respect to that mailing.

[00:06:10] Speaker 00:
And we have no evidence that it didn't go to that address.

[00:06:16] Speaker 01:
Well, I'm saying

[00:06:18] Speaker 01:
And I think, I hope, I'm crystal clear, I think the presumption with the Veterans Benefits Administration at this moment in time, saddled with their COBOL and all their problems, systemic problems, with their databases not talking to each other, I think it's a presumption of irregularity.

[00:06:39] Speaker 01:
I think it's a presumption that, and what's the cure here?

[00:06:44] Speaker 01:
You know, Mr. Shields lost 14 years.

[00:06:47] Speaker 01:
He never got to his merits argument.

[00:06:49] Speaker 01:
All I'm saying is what was practiced.

[00:06:51] Speaker 01:
And what practice was in this class of cases is we would get in touch with the regional office, and we would go over it.

[00:06:58] Speaker 01:
And most of the time, they would reissue the document and restart the clock.

[00:07:03] Speaker 01:
And I think in a non-adversarial system, I don't think that's an unreasonable fix.

[00:07:08] Speaker 01:
The veteran would have lost a year on proceeding with his merits.

[00:07:15] Speaker 01:
And Mr. Shields has had relief.

[00:07:17] Speaker 01:
He's at 90%.

[00:07:18] Speaker 01:
He's getting paid at 100% now.

[00:07:21] Speaker 01:
But the one issue he wanted to adjudicate and litigate was his earlier effective claim, his vigil claim.

[00:07:30] Speaker 01:
He hasn't been able to get to that.

[00:07:31] Speaker 00:
So what you want us to do is to basically wipe out any presumption of regularity or the mailing rule and impose an alternative mailing rule for all

[00:07:43] Speaker 01:
Well, in this type of situation, because the man has testified under oath several times that he didn't get it.

[00:07:53] Speaker 01:
He didn't receive it.

[00:07:53] Speaker 02:
But we have a factual determination that he did.

[00:07:58] Speaker 02:
That's our problem.

[00:07:59] Speaker 02:
I mean, we have a standard review.

[00:08:02] Speaker 01:
But then we have a pattern of conduct here.

[00:08:06] Speaker 01:
We used to say out in the desert, this is a goat rope.

[00:08:09] Speaker 01:
I mean, and I'll say another thing here.

[00:08:13] Speaker 01:
There's a chilling effect by this class of cases.

[00:08:16] Speaker 01:
And now I'm getting two of these a week.

[00:08:18] Speaker 01:
This is not now once a year or twice a year.

[00:08:21] Speaker 01:
The VBMS system is dysfunctional.

[00:08:24] Speaker 01:
And it's at Chernobyl.

[00:08:25] Speaker 01:
And I can't fix it.

[00:08:27] Speaker 01:
The secretary's trying to fix it.

[00:08:28] Speaker 01:
He told us at the court conference that before he leaves office, he's going to get rid of COBOL.

[00:08:34] Speaker 01:
COBOL was invented, as you saw in the brief, about a mile away from my office by Grace Hopper.

[00:08:41] Speaker 01:
It's old enough to collect Social Security, and it's still putting the address labels on our mail here.

[00:08:47] Speaker 01:
And we're all in the same canoe going over Niagara Falls.

[00:08:52] Speaker 01:
But this was the first, this is, I brought this case on.

[00:08:57] Speaker 01:
And I'm paying for it, not the client.

[00:08:59] Speaker 01:
We brought this case on because this is a whole class of case that has now become pandemic.

[00:09:06] Speaker 01:
And you're going to have, this was the first drop in Noah's flood.

[00:09:11] Speaker 01:
But we're in the monsoon now, and in a year or two, you're going to have 100 of these.

[00:09:15] Speaker 04:
Can I ask you a question?

[00:09:16] Speaker 04:
What do you think that we ought to rule here?

[00:09:23] Speaker 01:
That when a veteran says, hey, I didn't get it, you know,

[00:09:31] Speaker 04:
What?

[00:09:32] Speaker 04:
I'm sorry.

[00:09:33] Speaker 04:
Was it October of 2004 that he filed his notice of appeal?

[00:09:37] Speaker 01:
Well, but I did.

[00:09:38] Speaker 01:
I wrote to the regional office, and I also filed a VA 9.

[00:09:43] Speaker 01:
And I said, look.

[00:09:45] Speaker 01:
And they could have accepted that.

[00:09:46] Speaker 01:
Sometimes they would accept it, a late filing with the circumstances.

[00:09:51] Speaker 01:
But in this case, they came back, and they said, no, absolutely not.

[00:09:54] Speaker 01:
We're not going to.

[00:09:56] Speaker 01:
We went on with it.

[00:09:57] Speaker 04:
Did you have an opportunity at that time to request an extension of the due date?

[00:10:06] Speaker 01:
Well, you know, that was the point with, of course, we didn't have a moral argument, but Judge Hagel, he says, look, these veterans, and there's tens of thousands of them now, I'm warning you, the system is out of control.

[00:10:19] Speaker 04:
I know, but as Judge O'Malley said, we don't do this for mass regulations.

[00:10:27] Speaker 01:
How could he ask for an extension when he didn't discover the statement of the case with a 60-day time limit on it until a year later when I got the claims file?

[00:10:38] Speaker 04:
I thought that the regulation allows for good cause extensions to be sought even after the time has run.

[00:10:44] Speaker 01:
Well, what we asked was to restart.

[00:10:46] Speaker 01:
Am I wrong with that?

[00:10:47] Speaker 01:
I think, effectively, we did ask for the clock to restart.

[00:10:51] Speaker 01:
And we got a snippy response from the regional office.

[00:10:56] Speaker 01:
No, we're not going to do it.

[00:10:58] Speaker 01:
Whereas it's discretionary.

[00:10:59] Speaker 01:
It's totally within the discretion of the, there's no guidance.

[00:11:03] Speaker 01:
It's in with the discretion of the staff.

[00:11:05] Speaker 01:
And some staffers will reissue and restart the clock, and some tell us no.

[00:11:10] Speaker 01:
And this is one where they, unfortunately, they told us no.

[00:11:14] Speaker 01:
This veteran, when I, shortly before this time, had been homeless, I mean, he was having a lot of problems.

[00:11:23] Speaker 00:
All right, you're into your rebuttal time.

[00:11:24] Speaker 00:
You want to save it?

[00:11:25] Speaker 01:
All right.

[00:11:25] Speaker 01:
Thank you.

[00:11:35] Speaker 03:
Good morning.

[00:11:35] Speaker 03:
May it please the court?

[00:11:38] Speaker 03:
Mr. Shields' appeal in this case revolves entirely around his disagreement with the way the Veterans Court weighed the evidence regarding his receipt of the October 2003 statement of the case, and specifically the application of the presumption of regularity

[00:11:52] Speaker 00:
Let's just talk about some big picture issues.

[00:11:55] Speaker 00:
Obviously, Mr. Walsh is very frustrated.

[00:11:57] Speaker 00:
I mean, what these lawyers do, I think, is God's work.

[00:12:01] Speaker 00:
And we've got a lot of veterans out there, many of whom are homeless, many of whom do move around, many of whom are not educated.

[00:12:11] Speaker 00:
Why shouldn't we have a rule that says, if the veteran says, I didn't get it, that be given all the bad problems that the VA has with mailing, that that ought to be the presumption instead of the presumption of regularity?

[00:12:23] Speaker 03:
Your Honor, I'm sure one could make the argument that Congress or perhaps the VA itself as a matter of regulation could change the presumption of regularity in some way, but the reality is that is not the law and it's important to put this in context also.

[00:12:37] Speaker 03:
We have a VA system where literally millions of notices and other documents are mailed out by the VA each year and so this presumption of regularity serves an important policy purpose which is to

[00:12:51] Speaker 03:
assume that these millions of pieces of mail are in fact sent to the address that's noted on the face of the document.

[00:12:59] Speaker 03:
If you didn't have this presumption of regularity, presumably, you would have a potential situation where

[00:13:05] Speaker 03:
any number of claimants who maybe missed a deadline would be able to easily raise an argument, oh, I didn't get it.

[00:13:10] Speaker 03:
And there wouldn't be a presumption.

[00:13:11] Speaker 00:
Yeah, but I mean, Mr. Walsh's point is that he has familiarity with more than a few of those many millions of mailings.

[00:13:17] Speaker 00:
And he can tell you that most of the ones that he deals with are wrong.

[00:13:24] Speaker 03:
Yes, Your Honor, that is.

[00:13:25] Speaker 00:
And in this particular case, we have evidence that there were several mailing mistakes.

[00:13:30] Speaker 03:
Your Honor, it's correct that Mr. Walsh has said that in his reply brief.

[00:13:33] Speaker 03:
As Judge Wallach noted, none of that is in the record.

[00:13:35] Speaker 03:
It doesn't relate to the claim in this case.

[00:13:38] Speaker 03:
In this case, it is correct that several years later in 2008, there was another statement of the case that was issued by the regional office that did not have the correct address on it.

[00:13:49] Speaker 03:
At that point in time, Mr. Shields had attempted to change his address from the PO box that was used for the critical October 2003 statement of the case to something else.

[00:14:00] Speaker 03:
But the important point there is the board recognized that error, corrected it, remanded it back to the regional office and directed the regional office to reissue that statement of the case, which it did, which Mr. Shields then appealed, which led to the very appeal that's before this court now.

[00:14:15] Speaker 03:
So the point is, that's an excellent example of how the board can properly apply the presumption of regularity with respect to that document.

[00:14:24] Speaker 03:
It recognized there was an issue.

[00:14:26] Speaker 03:
So it didn't apply any presumption.

[00:14:28] Speaker 03:
It remanded it, ordered it to be reissued.

[00:14:30] Speaker 04:
Can you just clarify for me, but I don't really remember when Mr. Shields filed in October

[00:14:40] Speaker 04:
2004, I guess the notice of appeal is it, or whatever the form is.

[00:14:47] Speaker 04:
I forget the form.

[00:14:48] Speaker 03:
The VA-9.

[00:14:49] Speaker 04:
Right.

[00:14:50] Speaker 04:
Can you explain, did he ask there for a good cause extension under the statute and, I guess, regulation?

[00:14:58] Speaker 04:
And if not, tell me that.

[00:15:02] Speaker 04:
If so, what was the response to it?

[00:15:04] Speaker 04:
I don't remember the details of that.

[00:15:08] Speaker 03:
Your Honor.

[00:15:09] Speaker 03:
Mr. Shields had the opportunity under the VA's regulations, it's 38 CFR section 3.109B.

[00:15:17] Speaker 03:
He could have filed a motion or made a request to enlarge the deadline to file the substantive appeal following his receipt of that statement of the case.

[00:15:28] Speaker 03:
And that deadline can be extended for good cause shown even after the deadline has passed.

[00:15:34] Speaker 04:
He would have made that motion to the regional office?

[00:15:36] Speaker 04:
To the board.

[00:15:37] Speaker 04:
To the board.

[00:15:38] Speaker 03:
No, his substantive appeal contained no such request.

[00:15:43] Speaker 03:
In fact, the board itself noted, and this is page 98 of the appendix in the board's decision, it noted that no request for an extension was included in his October 2004 substantive appeal.

[00:15:55] Speaker 04:
So, again, you're- And after the board said that, when did the board say no such request was?

[00:16:05] Speaker 03:
The board's decision was in March of 2014.

[00:16:09] Speaker 04:
Oh, but did it say at the time back in closer in time to October of 2004 you have not requested an extension?

[00:16:22] Speaker 03:
No, Your Honor.

[00:16:22] Speaker 03:
There was no discussion of that prior to the board's actual decision.

[00:16:28] Speaker 03:
So that's an excellent example of how under the regulations, as a procedural matter, Mr. Shields had the opportunity

[00:16:36] Speaker 03:
to make an argument at the time to request additional time if he thought he had a basis for doing so.

[00:16:41] Speaker 03:
And no such request was made.

[00:16:44] Speaker 03:
And getting back to the issue of the October 2003 statement of the case, the board found, as a matter of fact, that it was properly addressed, and there is no dispute here, that address on that document, Mr. Shielder's PO box, was his current address as of that time.

[00:17:01] Speaker 03:
He had no representative at that point in time.

[00:17:04] Speaker 03:
There's no indication in the file that that document was ever returned to the VA suggesting it was undeliverable.

[00:17:09] Speaker 03:
So as a matter of fact, the board and then the Veterans Court found that the presumption of regularity applied here.

[00:17:17] Speaker 03:
There was nothing to rebut it other than Mr. Shields' statement that he didn't recall receiving that document.

[00:17:23] Speaker 03:
But Mr. Shields has not pointed to any case, and we have not found one either, from either the Veterans Court or this court where

[00:17:31] Speaker 03:
Any court has held that the presumption of regularity with respect to VA mailing procedures has sufficiently been rebutted simply by a claimant saying, I don't remember receiving the document.

[00:17:43] Speaker 03:
In the few cases where it has been rebutted, there's always been some other indicia in the claim file itself to suggest that there was a problem with the mailings contemporaneous with the one in question.

[00:17:54] Speaker 03:
And there's nothing in this file from the October 2003 time period to suggest that there was anything

[00:18:01] Speaker 03:
going wrong with the mailings at that time.

[00:18:04] Speaker 03:
Unless the court has any further questions.

[00:18:06] Speaker 03:
I have a comment.

[00:18:10] Speaker 02:
I understand Mr. Walsh's frustration in his argument.

[00:18:17] Speaker 02:
And I understand your legal argument, which I've raised to him.

[00:18:24] Speaker 02:
And that is, this is a factual question.

[00:18:27] Speaker 02:
And there's a presumption as a matter of law

[00:18:31] Speaker 02:
But I think his underlying concern is articulated by the requirement that the VA act in a veteran-friendly fashion.

[00:18:45] Speaker 02:
And there's a reason for that.

[00:18:48] Speaker 02:
Society owes a debt.

[00:18:51] Speaker 02:
And Congress has set up this system to pay that debt.

[00:18:55] Speaker 02:
And the debt is incurred not because somebody's

[00:19:00] Speaker 02:
the wounded or the widow or the orphan, the language on the front of the VA office, but more because civilians are taken and put into a system which is designed to create soldiers or sailors or marines or air personnel, people who fight.

[00:19:30] Speaker 02:
Everybody has to be, everybody in the service has to be able to fight.

[00:19:36] Speaker 02:
And as a consequence, not only combat, but training, in this case jumping out of airplanes, is, as the Army says, designed to train as you fight and in consequence to put those people through both physical and mental stress.

[00:19:54] Speaker 02:
And so you have a body of people out there

[00:19:57] Speaker 02:
who have been taken out of civilian life and stressed, both physically and mentally.

[00:20:02] Speaker 02:
And the quid pro quo from society for doing that is the existence of the veteran-friendly system.

[00:20:12] Speaker 02:
And it's not our role.

[00:20:14] Speaker 02:
It's a legislative role to correct

[00:20:18] Speaker 02:
the underlying presumptions and burdens, that has legal burdens, in this case the review of questions of fact.

[00:20:33] Speaker 02:
And we can't do it, but I think it's fair to Mr. Walsh to recognize that he's dealing with a system which should be friendly, and it doesn't look friendly,

[00:20:48] Speaker 02:
from the things he's saying.

[00:20:51] Speaker 02:
So I'm just saying that.

[00:20:53] Speaker 02:
Thank you.

[00:20:54] Speaker 00:
You don't have to respond.

[00:20:55] Speaker 02:
You don't have to respond.

[00:20:56] Speaker 03:
Thank you, Your Honor.

[00:20:57] Speaker 03:
We would ask that the Court affirm the Veterans Court's decision.

[00:21:04] Speaker 01:
Very briefly to please the Court.

[00:21:06] Speaker 01:
You know, there are about 21 million veterans right now.

[00:21:12] Speaker 01:
The veterans bar is intimate.

[00:21:15] Speaker 01:
It's about 4,000.

[00:21:18] Speaker 01:
And most of us aren't barristers.

[00:21:21] Speaker 01:
We're solicitors.

[00:21:22] Speaker 01:
You know, we work in small towns and small offices.

[00:21:26] Speaker 01:
I have a legal assistant.

[00:21:27] Speaker 01:
She's a great young gal.

[00:21:28] Speaker 01:
She's got two master's degrees.

[00:21:31] Speaker 01:
And she estimates now she's spending 60% of her time chasing ghosts, trying to get missing documents.

[00:21:39] Speaker 01:
We have the Rumsfeld problem.

[00:21:41] Speaker 01:
I mean, we're a law office.

[00:21:42] Speaker 01:
We're not a veteran service officer.

[00:21:46] Speaker 01:
being paid by Congress and chartered by Congress that has no immunity because if they screw up, the secretary says, well, they're not our agent, and you have no recourse.

[00:21:58] Speaker 01:
I'm a licensed attorney in the District of Columbia in the state of Michigan.

[00:22:02] Speaker 01:
I have two grievance panels to worry about, and I have the courts and malpractice actions.

[00:22:10] Speaker 01:
And we're just, this practice is becoming untenable

[00:22:16] Speaker 01:
with all these missing documents.

[00:22:18] Speaker 01:
And there has to be a solution.

[00:22:20] Speaker 01:
And if what we're getting from the agency is, well, presumption of regularity, take a hike.

[00:22:28] Speaker 01:
And then I start getting service of process for the complaints because my veteran says, well, presumption of regularity, you got that.

[00:22:38] Speaker 01:
And you didn't respond and timely file my appeal.

[00:22:41] Speaker 01:
And you didn't appear at my hearing.

[00:22:44] Speaker 01:
I appeared at a hearing at the regional office a few days ago, and I was supposed to have one client, and I had three.

[00:22:53] Speaker 01:
The next week I come down, I'm supposed to have two clients.

[00:22:56] Speaker 01:
I have one because my marine with four purple hearts didn't get his notice of his hearing.

[00:23:03] Speaker 01:
And we knew we should have called him, and I told the secretary, you didn't call him.

[00:23:07] Speaker 01:
She said, I didn't call him because we're just not getting notice.

[00:23:12] Speaker 01:
This system is broken.

[00:23:14] Speaker 01:
And this is not a backlog issue.

[00:23:17] Speaker 01:
This is a systemic process issue.

[00:23:20] Speaker 01:
And I'm saying that we need to craft a remedy, or we're going to lose our bar here, because the liability is just outrageous.

[00:23:29] Speaker 01:
Can't do it.

[00:23:29] Speaker 01:
Thank you.

[00:23:31] Speaker 00:
Thank you, Mr. Walsh, for your pro bono work on behalf of the veterans.

[00:23:36] Speaker 00:
It's an honor to the profession.

[00:23:39] Speaker 00:
The case will be submitted.