[00:00:31] Speaker 05: Okay, the next argued case is number 15-70-78. [00:00:35] Speaker 05: So is, again, speak Donald. [00:00:38] Speaker 05: Ms. [00:00:38] Speaker 05: Helm. [00:00:54] Speaker 02: May I please the court? [00:01:00] Speaker 02: This is a case [00:01:02] Speaker 02: This is a veteran's appeal, and this is a case, a straightforward case of statutory construction. [00:01:07] Speaker 02: Now, as this court knows, many veteran's appeals that come before this court are a narrow issue of whether this court has jurisdiction to entertain the appeal because of the relatively narrow scope standard of appeal for veteran's cases. [00:01:23] Speaker 02: And this is a case that I think we can all agree is one that is interpreting the statute as to the duty to assist a veteran. [00:01:32] Speaker 02: In this case, the appellant, Robert Sovis, is appealing the 2015 CAVC decision, which was affirming the Board of Veterans Appeals denial of his claims for benefits for dementia due to ionizing radiation. [00:01:49] Speaker 02: This appeal directly raises the question about the scope of the legal obligation imposed on the VA under the statutory duty to assist. [00:02:01] Speaker 02: The appellee's arguments focus almost exclusively on the issue of jurisdiction, whether his court has jurisdiction to entertain this question. [00:02:08] Speaker 02: The appellee's arguments that the Federal Circuit repeatedly refuses to hear appeals challenging the fulfillment of the duty to exist ignores the bulk of cases in which the Federal Circuit exercises jurisdiction, where the Court of Veterans Appeals resolution of the duty to assist turned directly on an interpretation [00:02:29] Speaker 02: of specific statutory language, as it does here. [00:02:33] Speaker 02: Now here, the duty to assist the main statute, 5103A, A1, imposes a duty to assist a claimant in obtaining evidence necessary to substantiate a claimant's claim. [00:02:46] Speaker 02: As you know, there's an exception, and the exception is 5103A2. [00:02:51] Speaker 02: The exception provides if no reasonable possibility exists that such assistance would aid in substantiating the claim. [00:02:59] Speaker 04: So which words was the Veterans Court interpreting there? [00:03:02] Speaker 02: The Veterans Court was interpreting the if no reasonable possibility exists. [00:03:07] Speaker 02: And the Veterans Court interpreted those words incorrectly by imposing a requirement that is more strict than that. [00:03:15] Speaker 02: They imposed a requirement that it must be reasonably helpful. [00:03:19] Speaker 02: And as we lay out in our brief, having a reasonable possibility that something might substantiate a claim and requiring that something might be reasonably helpful [00:03:29] Speaker 02: in substantiating that claim are two different things. [00:03:32] Speaker 03: So you're saying, Ms. [00:03:32] Speaker 03: Helm, this represents, in your view, a misinterpretation of the statute. [00:03:36] Speaker 02: Exactly. [00:03:37] Speaker 02: And to elaborate a little bit on the distinction between those two things, I think it might be helpful to analogize to an evidentiary rule of discoverability versus admissibility. [00:03:53] Speaker 02: There's no reasonable possibility that something exists. [00:03:56] Speaker 02: that's more akin to a discovery standard. [00:03:59] Speaker 02: Something might be discoverable, but you don't know whether there will be a reasonable possibility. [00:04:03] Speaker 02: You don't know whether it's going to be admissible, and you don't know whether that discover, potentially discoverable information is going to be helpful, whether it will ultimately be admissible in court. [00:04:13] Speaker 02: Those things, it was a legal error for the court to interpret that construction to require a reasonably helpful standard. [00:04:24] Speaker 02: Now, the court in so doing [00:04:26] Speaker 02: It was a short opinion. [00:04:28] Speaker 02: The Veterans Appeals Court, it was a four page opinion. [00:04:31] Speaker 02: And in that case, it relied on one case, no less than five times, and particularly cited that case for this interpretation. [00:04:39] Speaker 02: Now, that case was Hilkert. [00:04:42] Speaker 02: There's nowhere in that case that uses the reasonably helpful language. [00:04:49] Speaker 02: And I think part of the error here might have come from the fact that that case was [00:04:56] Speaker 02: interpreted at the time where there is the requirement that a veteran have a well pleaded claim, and as we know, that's no longer the law. [00:05:03] Speaker 02: So it's not the case that the veteran has to show that certain evidence would be reasonably helpful in substantiating their claim such that the claim needs to be well pleaded. [00:05:13] Speaker 02: Any case law that discusses that is an apposite here because we no longer have that well pleaded requirement. [00:05:20] Speaker 04: So what if a veteran said, well, I saw a documentary on PBS last year. [00:05:25] Speaker 04: I think it was on Frontline. [00:05:27] Speaker 04: and it was talking about the relationship between radiation and dementia. [00:05:32] Speaker 04: Do you think the duty to assist would kick in and the VA would have to try to sort through PBS's files on the internet for trying to find that documentary on Frontline? [00:05:47] Speaker 02: I'm just assuming the facts that you said. [00:05:49] Speaker 04: This is a hypothetical, yeah. [00:05:50] Speaker 02: Hypothetically, Judge Chen? [00:05:51] Speaker 02: No, I don't think [00:05:53] Speaker 02: absent further facts that the VA had also discussed it or something else had arisen in a context. [00:05:58] Speaker 02: No, I don't think that would necessarily raise that requirement. [00:06:01] Speaker 02: And that sort of goes to what I think is a little bit of a red herring that actually makes the argument in their brief that we are arguing that the medical evidence, the medical documents, should have been looked at by the VA and should have been considered in their duty to assist solely because the veteran put them forward. [00:06:19] Speaker 02: And that's not the argument here. [00:06:23] Speaker 02: we explained that the veteran did put them forward, put abstracts of the articles forward, and made it clear that they would have been adequately available. [00:06:30] Speaker 02: But in fact, it was the VA itself that put the issue before the court. [00:06:34] Speaker 02: And that was when the VA examiner examined the patient and explained that there is a correlation in the scientific literature between dementia and exposure to radiation. [00:06:53] Speaker 02: the medical literature is uncertain enough that one cannot be absolutely clear on this issue. [00:06:59] Speaker 04: The board made a fact finding that Mr. Sovis wasn't exposed to radiation during his time of service, right? [00:07:13] Speaker 04: The board made that finding. [00:07:15] Speaker 04: I'm not saying that that actually is reality, but the board made that finding. [00:07:18] Speaker 04: Is that right? [00:07:19] Speaker 02: Well, what actually the board said [00:07:21] Speaker 02: and I think this is a little bit confused by the briefing, the board made the finding that, I can look up the exact language, the board made a finding that he wasn't directly exposed. [00:07:36] Speaker 02: And I believe he says, this is page A174 of the appendix, at best he had indirect contact with nuclear materials. [00:07:46] Speaker 02: And what Appellee has done here, I think, has conflated the word direct [00:07:51] Speaker 02: with a direct requirement for having a direct service connection? [00:07:55] Speaker 04: I'm looking at a 174 to 175, which is pages 7 and 8 of the board decision. [00:08:02] Speaker 04: And there's a sentence here. [00:08:04] Speaker 04: It's kind of the windup sentence. [00:08:06] Speaker 04: It says, in light of the foregoing, the board finds that this non-combat veterans lay statements, when weighed against the other evidence of record, do not support his assertion of being exposed to radiation. [00:08:20] Speaker 04: So I'm not saying that's right. [00:08:25] Speaker 04: I'm not saying that's wrong. [00:08:26] Speaker 04: But just the plain language of that statement sounds pretty definitive. [00:08:33] Speaker 02: So to the extent that you're saying that's a factual finding that you don't have jurisdiction to review, I would argue that earlier on, as part of this factual finding, he explains at best he had indirect contact with nuclear materials. [00:08:46] Speaker 02: And then in explaining how to view the medical articles, [00:08:50] Speaker 02: says that therefore, altogether, when weighed against the other evidence, does not support an assertion of being exposed to radiation. [00:08:58] Speaker 02: I think if you, in part, this finding is predicated on a misinterpretation of what the duty to assist requires. [00:09:06] Speaker 02: And if you say that this comprises an evaluation of whether the duty to assist was fulfilled, and that's a factual determination, then I think every statutory misinterpretation of the duty [00:09:20] Speaker 02: would be unreviewable before this court because, ultimately, by the time you get to interpreting the statute, there will have been factual findings below. [00:09:29] Speaker 02: We're not arguing this factual finding on its face on this record. [00:09:33] Speaker 02: We're arguing that the duty to assist was not interpreted correctly. [00:09:38] Speaker 04: I guess I'm just trying to understand what can be done for your client if, in fact, we have an unreviewable finding that kind of breaks the chain on service connection. [00:09:51] Speaker 04: when there's a finding that there's not been any kind of exposure to radiation. [00:09:57] Speaker 04: So whether or not there is some kind of medical connection between radiation and dementia, I don't know how that ultimately helps Mr. Sovis get veterans' benefits. [00:10:13] Speaker 02: Well, I think in this case, all this court can do is consider, and all that we're requesting that this court do is consider a remand [00:10:20] Speaker 02: specifically on a very narrow issue, specifically instructing the VA to get those articles and to examine them. [00:10:28] Speaker 04: And then how would that ultimately advance Mr. Sovis' cause when we have a fact finding that there's been no exposure to radiation? [00:10:38] Speaker 02: Well, I think they say that exposure was indirect at best. [00:10:44] Speaker 02: And under a correct duty to assist, if they examine the evidence that they should have examined in the first instance, [00:10:50] Speaker 02: and that changes anything, then that changes anything below. [00:10:53] Speaker 02: I don't think the court needs to adjust these considerations here in order to remand solely on the misinterpretation of the statute. [00:11:11] Speaker 02: I'm happy to entertain other questions. [00:11:14] Speaker 02: I also wanted to address and mention briefly the Appellee's cases [00:11:19] Speaker 02: Most of the Appellee's cases that they cite are distinguishable here on one basic premise. [00:11:25] Speaker 02: This is not a case where the claimant is acting only in a passive role. [00:11:29] Speaker 02: And thus, explaining the duty to assist does not encompass a duty to prove a claim for such a passive claimant. [00:11:36] Speaker 02: Appellee spends a great number of pages citing the types of cases that I'm sure you're aware of, the Wood v. Derwinsky case, the Gage v. McDonald case, [00:11:46] Speaker 02: that explain the interaction between the veteran and the VA. [00:11:50] Speaker 02: This is not a one-way street. [00:11:51] Speaker 02: The veteran doesn't impose upon the VA a boundless search for records that may prove futile if the evidence is not relevant. [00:12:00] Speaker 02: I don't think any of those cases need to be considered here, and I don't think they're relevant here at all, because this is absolutely not that situation. [00:12:07] Speaker 02: This has not been a one-way street. [00:12:10] Speaker 02: This is not a passive claimant. [00:12:12] Speaker 02: Upon a basic review of the record, this court [00:12:16] Speaker 02: the court below, sorry, issued a supplemental statement of the case describing what the veteran's examiner had done. [00:12:23] Speaker 02: And in direct response to that, Mr. Sovis went out and obtained what he thought they were explicitly asking him to obtain and submitted to that to the VA. [00:12:34] Speaker 02: The VA then didn't do any of the things that were required under the statute to inform the veteran that his application was incomplete. [00:12:42] Speaker 02: to assist him in obtaining the evidence that he had specifically put before them and asked that he obtain. [00:12:48] Speaker 02: And though I don't think adhering to any of that case law is relevant for this very narrow question before the court. [00:12:58] Speaker 05: Okay, let's hear from the other side. [00:12:59] Speaker 05: We'll save your rebuttal time. [00:13:02] Speaker 05: Thank you. [00:13:05] Speaker 05: Ms. [00:13:06] Speaker 05: Rose. [00:13:19] Speaker 01: May it please the court, I would like to start by briefly addressing the argument on jurisdiction. [00:13:23] Speaker 01: And I think that the important thing here to remember is that when this court looks at its jurisdictional boundaries, it examines the substance of the issue presented, not a party's characterization of that. [00:13:34] Speaker 01: So the reason that the government here argued that there was no issue of statutory interpretation raised is that the Veterans Court truly did simply address [00:13:46] Speaker 01: the argument raised by Mr. Sovis as to whether or not the board had correctly found that the duty to assist had been fulfilled, and determined that on the facts of the record, the board did not err in finding the duty to assist fulfilled. [00:14:00] Speaker 03: Mr. Sovis, the statute does speak in terms of reasonable possibility, and it is correct that the Veterans Court in its decision referred to reasonably helpful. [00:14:14] Speaker 03: Whatever you say about the strength or the weakness or in between of that argument, it does seem to present a legal question as to whether there was a statutory interpretation that was incorrect. [00:14:30] Speaker 01: We don't disagree that questions regarding the scope of the duty to assist are within this court's jurisdiction. [00:14:36] Speaker 01: However, I think that when we get to the point where it's parsing so finely, [00:14:42] Speaker 01: We're almost asking the Veterans Court to invoke magic words, and it has to track the language of the statute directly. [00:14:51] Speaker 03: Well, that would be an argument on the merits. [00:14:53] Speaker 03: But as it's pitched, doesn't it present a legal argument? [00:14:59] Speaker 01: As it's pitched. [00:15:00] Speaker 01: But again, that goes back to what the court talked about. [00:15:03] Speaker 01: And as it's pitched by Mr. Sobus, if it's characterized as a legal argument, [00:15:12] Speaker 01: Again, here, I don't think that the Veterans Court's decision really supports there was an interpretation in the manner that this court has described, for example, in talking about an elaboration of the statute or, for example, as was discussed in Forshee. [00:15:31] Speaker 01: But if the court were to reach the merits, I think that what's clear here is that the correct result would be for this court to affirm the Veterans Court's decision. [00:15:41] Speaker 01: And I want to talk about that language about reasonably helpful to substantiate a claim, because that's very important language here. [00:15:48] Speaker 01: There's a distinction between a claim and all of the underlying elements or factors that make up that claim. [00:15:57] Speaker 01: And here, Mr. Sobus' claim was for a claim for service connection for dementia based on exposure to radiation. [00:16:05] Speaker 01: And that type of claim, a direct claim for a claim, a direct claim is [00:16:12] Speaker 01: requires both first a finding that the veteran was exposed to radiation, and then only second do you reach the question of whether or not there's a nexus between the found exposure to radiation and the underlying condition. [00:16:28] Speaker 01: And so here, where the board had found, and it appears that Ms. [00:16:33] Speaker 01: Peer Services Council agrees that the board's finding that there was [00:16:37] Speaker 01: no exposure to radiation is an unreviewable factual finding. [00:16:41] Speaker 01: And I don't believe that she challenged that in her briefs. [00:16:44] Speaker 01: Where the board had found that there was no exposure to radiation, this goes to Judge Chen's question about what then could the VA have really done to assist this claimant. [00:16:56] Speaker 01: And the simple fact of the matter is that these articles, even if they could help validate a nexus between [00:17:06] Speaker 00: radiation exposure and dementia. [00:17:08] Speaker 05: But there was no dispute in terms of the fact that he was on the ship and that he was bunked adjacent to the cargo. [00:17:17] Speaker 05: And at that time, I didn't see any establishment that there is no leakage and that there is no area that one might view as exposure. [00:17:32] Speaker 05: And I didn't see that the board made a definitive finding that [00:17:36] Speaker 05: the air in that space was pure and free of any aspect of radiation? [00:17:43] Speaker 05: Are you saying that they did? [00:17:46] Speaker 01: No, however, I think this gets to a more fundamental issue relating to claims based on ionizing radiation, because there is potential for exposure to radiation any time that you're dealing with nuclear material, certainly, but also in other circumstances such as [00:18:05] Speaker 01: You know, simply flying, being exposed to the environment. [00:18:06] Speaker 05: We're not concerned with other circumstances. [00:18:08] Speaker 05: We're concerned with these circumstances. [00:18:10] Speaker 05: The bunk to which he was assigned, where he resided for a good deal of time on the ship, and all the rest of it. [00:18:19] Speaker 05: I didn't see any scientific finding that there was no radiation leakage or whatever else you might call it in that atmosphere. [00:18:30] Speaker 01: Well, a leak, I think we're now [00:18:34] Speaker 01: perhaps getting into the difference between indirect exposure anytime that there's nuclear materials and something that causes a release of nuclear materials. [00:18:44] Speaker 05: No, we're getting into the findings of the board and the completeness, whether there was doubt to be resolved in favor of the veteran, the extent of the additional investigation that the board was required to, or the VA was required to do, when apparently they did not decline [00:19:04] Speaker 05: even to read the scientific references that he provided by title. [00:19:09] Speaker 05: The title is significant. [00:19:12] Speaker 05: The content of two of them, perhaps, was unknown. [00:19:16] Speaker 05: No effort by the board to review the state of the science, as far as we could tell from the record. [00:19:25] Speaker 01: I would start with that, Your Honor, that last point, because there was an effort made to review the state of the science. [00:19:32] Speaker 01: That wasn't done by the board directly. [00:19:34] Speaker 05: They're supposed to assist the veteran. [00:19:36] Speaker 05: This is not an adversary proceeding. [00:19:39] Speaker 05: This is where we're all trying to find out as well as we can what the scientific facts might be, what might be the consequences for those who, for one reason or another, might be vulnerable. [00:19:53] Speaker 05: And it's hard to find in the record that this duty was [00:19:59] Speaker 05: performed as conscientiously as one might hope? [00:20:03] Speaker 01: First of all, when Mr. Sovis made it clear that he was basing his claim not only on asbestos, which is what the VA had originally interpreted the claim to be based on, but on exposure to radiation, the board remanded for a VA examination to examine his claim and do that scientific determination that the court is concerned about. [00:20:27] Speaker 01: And specifically, that medical examiner in 2012 did review the state of the scientific evidence. [00:20:33] Speaker 01: And that can be found in the record at 137 to 141. [00:20:39] Speaker 01: After that examination had been performed, Mr. Sovas submitted these additional abstracts. [00:20:49] Speaker 01: But to be fair, one abstract does on its face [00:20:54] Speaker 01: explained that the underlying study found that there was no direct correlation between exposure to radiation and development of dementia in survivors of atomic bomb, like in Hiroshima, and that was at 155. [00:21:13] Speaker 05: We're told the record says that the board did not read, refuse to obtain the two scientific articles whose [00:21:24] Speaker 05: a caption states a relevancy of some sort. [00:21:30] Speaker 00: How does that fulfill the duty to assist? [00:21:33] Speaker 01: Because the duty to assist, as this court explained in goals, is not boundless. [00:21:37] Speaker 01: And here, where there was a predicate element that is exposure to radiation, and there was, as Judge Chen pointed out, a finding by the board that Mr. Soves had not established that he was exposed to radiation materials during service, that second element of nexus [00:21:53] Speaker 01: really isn't reached. [00:21:54] Speaker 01: The board did address the nexus element, but in this decision, it made it clear that the first element really could end the discussion. [00:22:05] Speaker 01: It went on to discuss the nexus, but there's nothing about the nexus element that could substantiate Mr. Sovis' claim, which is what the statute at 5103A requires. [00:22:17] Speaker 01: It has to be something that can help substantiate the claim. [00:22:20] Speaker 01: And where there is a factual finding that is not reviewable by this court on the first element, that Mr. Sovis was not exposed to radiation as a result of service, that second piece, even if the state of the evidence [00:22:38] Speaker 01: the medical evidence showed definitively that there could be some connection between dementia and radiation exposure. [00:22:45] Speaker 01: It would only come into play if there was a finding that Mr. Sovis had been exposed to radiation. [00:22:54] Speaker 03: So in your view, what is the proper disposition of this case? [00:22:59] Speaker 03: Assume that the court were to find that a legal argument has been presented along the lines that [00:23:08] Speaker 03: Ms. [00:23:08] Speaker 03: Helm discussed in a brief and oral argument, but that at the same time, we're faced with a finding that there was no exposure to radiation, both by the board and, again, that finding not disturbed on appeal to the Veterans Court. [00:23:26] Speaker 03: What do we do in that circumstance if that's the situation? [00:23:30] Speaker 03: We have a legal argument, jurisdiction for that, but if you're correct, [00:23:37] Speaker 03: Whether that argument stands or falls doesn't make any difference. [00:23:41] Speaker 03: What do we do in that situation? [00:23:43] Speaker 03: Do we affirm or do we dismiss or what, in your view? [00:23:47] Speaker 01: If there is a legal argument raised, then the court would have jurisdiction. [00:23:50] Speaker 01: So dismissal would not be appropriate. [00:23:52] Speaker 01: The correct thing to do would be to affirm. [00:23:55] Speaker 01: And I would note that it's not a harmless error type argument because that assumes that there was an error. [00:24:05] Speaker 01: But it would reflect the court's understanding that here, the duty to assist does not require the VA to obtain documents where, like here, there's a claim that requires two elements and the first element has not been met. [00:24:20] Speaker 01: Something that can help sustain the second element is not necessary. [00:24:25] Speaker 01: It's not necessary for the VA to go out and get those documents on nexus if that first element of exposure has not been found. [00:24:35] Speaker 01: If the court has no further questions, we ask that the appeal be dismissed or affirmed if the court determines it has jurisdiction. [00:24:42] Speaker 01: Thank you, Ms. [00:24:42] Speaker 01: Rose. [00:24:44] Speaker 02: Ms. [00:24:44] Speaker 02: Helen. [00:24:48] Speaker 02: I just have a couple brief points to respond to, I believe, Judge Schall and Judge Chen. [00:24:51] Speaker 02: It seems like you're over one concern that you have is this factual finding about whether Mr. Sovis had any exposure to radiation or not. [00:25:02] Speaker 02: And for this, I would point, again, [00:25:04] Speaker 02: to the notion that if you cannot challenge a statutory interpretation because of a prior factual finding, then review would be precluded in many instances that I don't believe Congress intended this court to preclude review, the very narrow issue here. [00:25:22] Speaker 02: It is not the case. [00:25:24] Speaker 02: I don't believe it is the case, as Athalie says. [00:25:26] Speaker 02: There are two prongs, and if you haven't met the first prong, the second prong is irrelevant. [00:25:31] Speaker 02: In this case, the first prong in which [00:25:34] Speaker 02: The factual finding was that at best there was indirect contact to nuclear materials, and then based on a set of reviewing the evidence, the conclusion was that there is probably no exposure to radiation. [00:25:47] Speaker 02: Here, the statutory error is conflated with the fact that proper evidence wasn't presented. [00:25:54] Speaker 02: So if you take this very narrow remand, which we believe is appropriate here to remand the issue, it's a very [00:26:01] Speaker 02: relatively light burden the VA would have to review the specific enumerated documents, which no one has argued and there's no argument in the record here or below that those documents are somehow not attainable and that any of the goals law or otherwise kicks in to say that this would be a futile search or this would not be something that could be adequately found by the VA. [00:26:24] Speaker 02: None of that applies here. [00:26:26] Speaker 02: There's no dispute they could get these records. [00:26:28] Speaker 02: If we could remand the case narrowly to look at that, then I believe [00:26:31] Speaker 02: an issue to be presented below on what the evidence then says under a proper interpretation of the statute. [00:26:38] Speaker 02: And then, if any finding doesn't change, well, I believe that's just speculative at this case, and that's not something that we're asking this court to consider. [00:26:50] Speaker 05: Any more questions? [00:26:53] Speaker 05: Thank you. [00:26:53] Speaker 05: Thank you, Ms. [00:26:54] Speaker 05: Howard, Ms. [00:26:54] Speaker 05: Rose. [00:26:55] Speaker 05: The case is taken under submission. [00:26:57] Speaker 05: That concludes the argued cases for this morning. [00:27:02] Speaker 02: Alright.