[00:00:02] Speaker 04:
Our first case today, 2016-1463, DAV versus the Secretary of Veterans Affairs, Mr. Stoltz, please proceed.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:21] Speaker 01:
Before the November 2015 change to the M21 manual, Gulf War veterans could qualify for service-connected benefits for their illness where it either

[00:00:33] Speaker 01:
lacked inclusive ideology or lacked inclusive pathophysiology.

[00:00:39] Speaker 01:
Now, because of VA's changes to the M21, VA requires that both criteria be satisfied in order to establish service connection for a medically unexplained chronic multi-symptom illness.

[00:00:55] Speaker 03:
Let me ask you a question.

[00:00:56] Speaker 03:
Why didn't you

[00:00:59] Speaker 03:
ask that this case be combined with Goodman, or at least argued together with Goodman at the same time?

[00:01:05] Speaker 01:
The case, Your Honor, in Prezl, the Goodman case, has this question in it.

[00:01:11] Speaker 01:
But there's a separate basis as well.

[00:01:14] Speaker 01:
In that case, we're also arguing that the medical examiner rendered an opinion that was not on an individual basis.

[00:01:20] Speaker 01:
It seemed to us that that was a specific case or controversy, whereas this was a cleaner

[00:01:25] Speaker 01:
a challenge to the change to the M-21.

[00:01:28] Speaker 01:
That was our thinking at least.

[00:01:29] Speaker 03:
I mean, except that you've got the jurisdictional overlay here that half the briefing is spent on, right?

[00:01:36] Speaker 01:
Correct.

[00:01:37] Speaker 01:
Yes, Your Honor.

[00:01:37] Speaker 03:
And you wouldn't have that in the Goodman case.

[00:01:41] Speaker 01:
Well, again, because the Goodman case really asks another question, and this was the way that it was in addition to this one, we thought if this one was able to go first,

[00:01:53] Speaker 01:
It would lay more groundwork for Mr. Goodwin's case, if that makes some sense.

[00:01:59] Speaker 01:
OK.

[00:01:59] Speaker 01:
VA, Your Honors, also precluded veterans, wholesale veterans with sleep apnea, from establishing on a case-by-case basis that their condition is a medically unexplained chronical disease.

[00:02:11] Speaker 04:
Is the VA manual binding?

[00:02:14] Speaker 01:
It is, Your Honor.

[00:02:15] Speaker 01:
It is.

[00:02:16] Speaker 01:
On who?

[00:02:16] Speaker 01:
It is binding on adjudicators at the regional offices, which is truly where the rubber meets the road.

[00:02:23] Speaker 01:
in the VA system, that is where the millions of claims get filed every year, or the over a million claims get filed every year, that the goal for veterans, of whom the class is millions, is going to get the overwhelming majority of their decisions, is at the regional office and at the DRO levels.

[00:02:44] Speaker 04:
Yes, but under what authority is the manual binding?

[00:02:49] Speaker 01:
The manual is binding as a direction of the secretary under 3.100.

[00:02:53] Speaker 01:
It has been read as binding.

[00:02:56] Speaker 01:
It's not binding on the board, right?

[00:02:59] Speaker 01:
Your Honor, I really would argue that it is under the statute.

[00:03:03] Speaker 01:
I believe that 19.5 contravenes the 7104 statute.

[00:03:06] Speaker 01:
But be that as it may, that is an argument that does not have to win the day for us to establish that the M21 provision is binding on the adjudicators and therefore a substantive rule because it is

[00:03:17] Speaker 01:
taking away the individual rights at the agency level, which again is where the rubber meets the rope in the VA adjudication system.

[00:03:28] Speaker 01:
So while we do argue, and I would argue, that 19.5 is not in accordance, or I would argue two things.

[00:03:35] Speaker 01:
19.5 is being read overly broadly, as we said in our pleadings.

[00:03:39] Speaker 01:
The board

[00:03:40] Speaker 01:
is bound to adjudicatory changes like this, but perhaps not the procedural side.

[00:03:46] Speaker 02:
But if we find that the manual doesn't fall under 552A1, then there's no jurisdiction here, correct?

[00:03:56] Speaker 01:
The interpreted versus substantive would be a harder row.

[00:04:02] Speaker 01:
But the court could still review.

[00:04:03] Speaker 02:
That's what this case is about, isn't it?

[00:04:06] Speaker 01:
The M21 is binding.

[00:04:07] Speaker 01:
But even if the M21 is found not to be binding,

[00:04:09] Speaker 01:
The change is in complete contravention of the plain language of the statute and regulation on point.

[00:04:15] Speaker 01:
So I believe that the court could still reach that VA's interpretation is wrong.

[00:04:20] Speaker 01:
And again, it's something that may be brought up again in the President Goodman case.

[00:04:25] Speaker 01:
But the interpretation is still clearly arbitrary and capricious, because the change is seen at page 100 of the record.

[00:04:33] Speaker 01:
VA strikes out the word or, which is what is in the actual regulation.

[00:04:38] Speaker 01:
And they just write and.

[00:04:40] Speaker 04:
But if I view that as simply interpretive and not a change, since there is a negative predicate at the beginning of that clause, it says without conclusive pathophysiology or etiology.

[00:04:56] Speaker 04:
So if I view the or as an and because of the without, you're in a negative space.

[00:05:03] Speaker 04:
It's saying you can't have this or this.

[00:05:05] Speaker 04:
If I say you can't have peas or carrots,

[00:05:08] Speaker 04:
Or if I say to my children, you can't have ice cream or cookies, I don't think that they're going to go eat cookies and believe they're not going to get in trouble.

[00:05:19] Speaker 04:
If I say to the kids that, right?

[00:05:20] Speaker 04:
I mean, you know, if you tell your children no ice cream or cookies, you think they're going to go have one?

[00:05:26] Speaker 04:
and feel totally safe in doing so.

[00:05:28] Speaker 04:
My 16-year-old might try, because he fancies himself a lawyer.

[00:05:31] Speaker 01:
I was going to say, Your Honor, it depends on how good of lawyers your kids might be.

[00:05:36] Speaker 01:
But my answer to that, Your Honor, would be that for years, that since the training letter in 2010 that's at Record 8, for years, the Department of Veterans Affairs gave this reading as disjunctive.

[00:05:50] Speaker 01:
It said, pathophysiology or ideology, it also

[00:05:55] Speaker 01:
Four years.

[00:05:56] Speaker 01:
Left this up on a case by case basis and relied on medical evidence.

[00:06:00] Speaker 04:
All of a sudden... You're saying for years they read it disjunctively.

[00:06:03] Speaker 04:
What is your evidence that they did so?

[00:06:05] Speaker 04:
Was there a regulation that said the contrary of the current regulation?

[00:06:09] Speaker 01:
The regulation always said or.

[00:06:11] Speaker 01:
The training letter at record eight makes a very strong indication that what they were trained to do was to look at the ideology.

[00:06:17] Speaker 01:
And if the ideology was... If the ideology part was met,

[00:06:24] Speaker 01:
then they could find a MUCMI, a medically unexplained multi-symptom illness.

[00:06:28] Speaker 01:
The manual mimicked the language of the regulation and the manual was fine when it did so.

[00:06:35] Speaker 01:
Then in the throes of litigation in 2015, they decided through a series of emails that are all part of the record that they needed to make a change.

[00:06:44] Speaker 01:
That change has the substantive effect of changing VA's

[00:06:49] Speaker 01:
that is found, again, at record eight and is found in the original way the manual read, VA's policy, whether or not, Your Honor... Is it a substantive change?

[00:06:56] Speaker 01:
It's a substantive change.

[00:06:57] Speaker 01:
How?

[00:06:58] Speaker 01:
Because before, Your Honor, before, under the reading of the plain language of the regulation and the way VA had implemented it, a veteran comes in and has to prove only one of these things.

[00:07:08] Speaker 02:
Okay, I get that, but the result is the same, isn't it?

[00:07:11] Speaker 02:
I mean, it's no cash, no credit.

[00:07:15] Speaker 01:
No, Your Honor.

[00:07:16] Speaker 01:
I would say, Your Honor, that it is not the same.

[00:07:19] Speaker 01:
Because in order to win under the reading of the plain language of the regulation before VA decided to change the regulation, before that, if you have a doctor that says, look, we understand how this condition.

[00:07:32] Speaker 01:
For example, rheumatoid arthritis is the example, because that's the example that in the emails throughout this, and we'll touch on it, I'm sure, in the President Goodman case, rheumatoid arthritis, he was able to meet one part of that.

[00:07:45] Speaker 01:
Because of the emails and because of the change, the substantive change, now that appellant no longer is entitled to service connection.

[00:07:52] Speaker 01:
There is a very real, very tangible case that shows that under one reading, it is liberal.

[00:07:59] Speaker 01:
And under this re-promulgation of the rule, it is no longer liberal.

[00:08:05] Speaker 02:
So is your argument that the change here is at 552A1D?

[00:08:15] Speaker 02:
that this is a substantive rule of general applicability?

[00:08:18] Speaker 01:
Yes.

[00:08:20] Speaker 02:
Why doesn't it fall under 552A2C, Administrative Staff Manuals and Instructions?

[00:08:28] Speaker 01:
Because of the effect.

[00:08:29] Speaker 01:
Because it has the legislative effect.

[00:08:31] Speaker 02:
But this is a manual.

[00:08:34] Speaker 01:
It is a manual.

[00:08:35] Speaker 01:
It is a manual, but it really is important, I think, Your Honor, for me to highlight that this manual

[00:08:43] Speaker 01:
It is my understanding that this manual is a Bible, if you will.

[00:08:46] Speaker 01:
It is the manual for adjudicators.

[00:08:49] Speaker 01:
Because of their workload, because of the way this area of law changes, the M21 is on an adjudicator's desk or on a DRO's desk.

[00:08:59] Speaker 01:
And again, this is my characterization of something.

[00:09:02] Speaker 01:
And it is what they look at.

[00:09:03] Speaker 01:
They are going to look at this.

[00:09:05] Speaker 01:
They are going to see the word and, and that is what they are going to go with.

[00:09:09] Speaker 01:
They're not going, and that's going to happen thousands of times a day.

[00:09:13] Speaker 03:
of prior instances in which determinations were made that specific diseases were covered in an individual case, like rheumatoid arthritis or Parkinsonism or something else where the etiology is unknown, even though the pathology is definable?

[00:09:34] Speaker 01:
There are none of record, Your Honor.

[00:09:36] Speaker 01:
I would be happy to go and look for those if it is of interest to the court.

[00:09:40] Speaker 01:
There are none of record the rheumatoid arthritis case

[00:09:42] Speaker 01:
It is really demonstrative.

[00:09:46] Speaker 01:
I think VA's rendered thousands of adjudications.

[00:09:51] Speaker 03:
I am... Well, I mean, you're taking the position that we shouldn't be looking at the face of the regulation and how it's worded because from a grammatical standpoint, you have a little bit of a problem there.

[00:10:02] Speaker 03:
You're saying that we need to look at how they told everybody to interpret that regulation in the past.

[00:10:09] Speaker 03:
And what I'm trying to understand is, do we have actual concrete evidence that it was interpreted in a different way?

[00:10:14] Speaker 01:
There is none of record, Your Honor.

[00:10:15] Speaker 01:
Again, I'd be happy to look for some of those and submit those, if it would be in the court's interest.

[00:10:20] Speaker 03:
OK.

[00:10:23] Speaker 01:
If there are no further questions at this time, I'll yield the rest of my time for rebuttal.

[00:10:26] Speaker 01:
It looks like I'm getting into it.

[00:10:28] Speaker 04:
OK, thank you very much.

[00:10:29] Speaker 04:
I should respond.

[00:10:37] Speaker 00:
May it please the court.

[00:10:38] Speaker 00:
I'll start, if I may, with explaining why the revisions here are merely interpretive and are not themselves substantive rules with the force and effect of law.

[00:10:50] Speaker 04:
Before you do that, is it correct that this is not binding?

[00:10:56] Speaker 00:
We agree with the characterization that it is binding on the regional office employees who are adjudicating the claims, but it is not binding

[00:11:05] Speaker 00:
on the board, as we see in regulation 19.5.

[00:11:09] Speaker 00:
And in the reply brief, DAV points to the statute in 7104 and references instructions of the secretary, but the VA adjudication manual qualifies as instructions to the regional offices, which are separate from the board, and so it's not instructions to the board.

[00:11:28] Speaker 00:
And in fact, the instructions to the board language

[00:11:31] Speaker 00:
is referring to a term of art really that is a type of guidance that VA no longer issues.

[00:11:37] Speaker 00:
And so in a prior version of 19.5, it did actually reference instructions of the secretary and that was removed when VA stopped using that type of guidance.

[00:11:47] Speaker 00:
And so now the VA's implementation of 7104 appears in 19.5 and quite clearly says that instructions that appear in, for example,

[00:11:59] Speaker 00:
the general counsel precedent opinions are binding on the board, but VA manuals, which are instructions to employees.

[00:12:06] Speaker 03:
Can you represent that the board never cites to or relies on the VA manuals when making its decisions?

[00:12:12] Speaker 00:
Well, we're not saying they wouldn't cite to it.

[00:12:14] Speaker 00:
For example, we would cite to the VA manual sometimes in seeking our deference before this court.

[00:12:20] Speaker 00:
So it is appropriate for the board to look to the manual as indicative of the VA's interpretation

[00:12:28] Speaker 00:
the VBA's interpretation, but it would not be binding on the board.

[00:12:33] Speaker 00:
And so that distinguishes this from a substantive rule where the rule, as the court explained and explained, should be, is binding law on entities outside of the agency and surely within the agency.

[00:12:48] Speaker 03:
So here we don't even have- So you're saying this is not a substantive rule change, but in the next case down the road with an individual claimant,

[00:12:57] Speaker 03:
You're then going to say, well, but it's not a substantive rule change, but we want deference.

[00:13:02] Speaker 03:
And so therefore, you have to defer to our changing the rules.

[00:13:07] Speaker 00:
Well, there's no inconsistency there, Your Honor, because we routinely seek deference.

[00:13:12] Speaker 00:
Well, courts routinely give deference to agencies, even in even more informal instances.

[00:13:17] Speaker 00:
Like our, the Supreme Court's decision in our, for example, granted deference based upon an amicus brief.

[00:13:24] Speaker 00:
The fact that we're saying it's not binding law is not inconsistent with us later saying that this is a fair and considered judgment of the secretary on a given issue.

[00:13:37] Speaker 00:
And that gets back to the crux of the difference between substantive and interpretive.

[00:13:42] Speaker 00:
The rule here is coming from 3.317.

[00:13:46] Speaker 00:
That is the binding law.

[00:13:48] Speaker 00:
That is where the substantive rights are being drawn from.

[00:13:54] Speaker 00:
The revisions here merely qualify as guidance to VA employees and interpretation.

[00:14:01] Speaker 03:
So this case is just like... So is this an interpretation of the statute or an interpretation of the regulation?

[00:14:07] Speaker 03:
Because our deference only relates to interpreting regulations.

[00:14:11] Speaker 03:
You can't back into Chevron deference because Mead makes it clear that interpretive decisions do not result in deference.

[00:14:21] Speaker 00:
Certainly, Your Honor, this is an interpretation of the regulation in 3.317.

[00:14:26] Speaker 00:
And we know that because if we just look to the analysis itself, it's drawing from the language that appears in the regulations definition of a medically unexplained illness.

[00:14:37] Speaker 00:
So we're taking the regulatory language of without conclusive pathophysiology or etiology, and the VA is providing its interpretation that because, as the court noted,

[00:14:49] Speaker 00:
there is this negative qualifier.

[00:14:51] Speaker 00:
So that translates to requiring both an inconclusive pathophysiology and an inconclusive etiology.

[00:14:59] Speaker 03:
But if it's medically unknown, I mean, there's lots and lots of conditions that, you know, whenever you say, how did I get this or why do I have this or what caused this, like Parkinsonism, rheumatoid arthritis, the answer is always, we don't know, right?

[00:15:16] Speaker 03:
We don't know.

[00:15:16] Speaker 03:
So that would seem

[00:15:18] Speaker 03:
to relate just to etiology.

[00:15:20] Speaker 03:
Just because we know how your brain gets screwed up in one of these or how your nerves get messed up in one of these doesn't mean that we know anything, that it has become medically certain.

[00:15:33] Speaker 00:
Well, as Your Honor points out, there are any number of very well-established diseases that the medical

[00:15:38] Speaker 00:
literature and that medicine simply does not know the cause of.

[00:15:42] Speaker 00:
But the genesis of the medically unexplained amendment for presumptive service connection arose because of problems in applying the undiagnosed illness presumption.

[00:15:56] Speaker 00:
And essentially what happened was that there were advances in medical terminology that resulted in doctors applying diagnoses to

[00:16:04] Speaker 00:
collections of symptoms that had previously been undiagnosed.

[00:16:07] Speaker 00:
So these are the examples like chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, where there was really no understanding of how the disease presented in the body.

[00:16:18] Speaker 00:
There was no understanding of the pathophysiology or the etiology.

[00:16:21] Speaker 00:
And so Congress felt that the same challenges in establishing nexus that existed for undiagnosed illnesses would still exist

[00:16:29] Speaker 00:
for these illnesses despite the diagnosis that was effectively a diagnosis in name only.

[00:16:34] Speaker 00:
It was just a label and there was no understanding.

[00:16:36] Speaker 00:
So that's different than situations like multiple sclerosis or Crohn's disease or ulcerative colitis where there are observable structural changes in the body that are known.

[00:16:47] Speaker 00:
So the pathophysiology is known.

[00:16:49] Speaker 00:
So there aren't the same challenges in establishing nexus.

[00:16:51] Speaker 03:
The whole point is that because we don't know what this

[00:16:56] Speaker 03:
terrible herbicide exposure might have caused.

[00:16:59] Speaker 03:
If the whole point is that the presumption relates to causation, then why does pathophysiology matter?

[00:17:07] Speaker 00:
Because it provides a record for how the disease is progressing.

[00:17:12] Speaker 00:
And there are veterans who establish service connection based on MS or multiple sclerosis or other diseases for which the etiology is unknown.

[00:17:26] Speaker 00:
the VA has methods of determining nexus in those cases.

[00:17:30] Speaker 00:
So it's not the case that every time a disease is unknown, it's impossible to establish nexus.

[00:17:35] Speaker 03:
Give me an example of how you determine a nexus when there's no known etiology.

[00:17:41] Speaker 00:
Well, perhaps an example would be if the multiple sclerosis, for example, is having symptoms and also has been

[00:17:55] Speaker 00:
identified there's been plaque in the brain identified.

[00:17:58] Speaker 00:
And so you can see that at an earlier date and you can see as the disease progresses that the plaque is worsening.

[00:18:05] Speaker 00:
And so you can see that this is the same disease.

[00:18:08] Speaker 00:
You can see that this is progressing the way that multiple sclerosis would based on the medical understanding of the pathophysiology.

[00:18:16] Speaker 00:
So there is a reason why the regulation says, and this is getting back to the regulation,

[00:18:22] Speaker 00:
that this is both without conclusive pathophysiology.

[00:18:27] Speaker 03:
So you're basically saying that there isn't a way to establish nexus if you have pathophysiology, even though you have no etiology.

[00:18:37] Speaker 00:
I'm sorry, Your Honor.

[00:18:38] Speaker 00:
I'm saying that there is a way.

[00:18:40] Speaker 00:
Given the known characteristics of diseases like multiple sclerosis, even though it's not known whether it comes from genetics or whether there's a specific environmental trigger, given the fact that

[00:18:52] Speaker 00:
the medical field knows how the disease progresses, that does provide a basis for establishing nexus.

[00:18:58] Speaker 00:
And this really gets back to the fact that in an interpretive rule, the agency is looking to the language of the regulation.

[00:19:07] Speaker 00:
As the court explained in Splane, in a substantive rule, you would expect to see this sort of

[00:19:13] Speaker 00:
policy-making analysis that we're engaging in right now, whereas in an interpretive rule you're looking to the language of the regulation and you're trying to parse out that meaning.

[00:19:24] Speaker 00:
So that's what the VA did here.

[00:19:26] Speaker 02:
They looked to the language of 3.317 and they came to a perfectly reasonable... Would you say that the interpretation narrowly limited the administrative action that's taken?

[00:19:38] Speaker 00:
So it limited only the regional office adjudicators.

[00:19:41] Speaker 00:
But that would be true for any instructions to employees.

[00:19:45] Speaker 02:
And does that limitation have the force of law?

[00:19:49] Speaker 00:
No.

[00:19:49] Speaker 00:
It has the same effect as any instruction to an employee.

[00:19:52] Speaker 00:
And I would note that DAV is perfectly right that the VA is responsible for adjudicating.

[00:19:57] Speaker 02:
Then why make the interpretation at all?

[00:19:59] Speaker 02:
Again, I asked you if the interpretation narrowly limits the administrative action.

[00:20:05] Speaker 00:
It does limit the- It narrowed it, didn't it?

[00:20:08] Speaker 00:
It does limit the regional office, Your Honor, but it does not... And does that have force of law?

[00:20:14] Speaker 00:
No, it does not.

[00:20:16] Speaker 03:
It's just the way that an instruction... But in answer to his question, it was a narrowing, correct?

[00:20:20] Speaker 00:
We will say it was a narrow limitation of the regional office, but that still is only one part of the VA.

[00:20:27] Speaker 00:
The VA also includes the board, and simply because, the court said in Spleen, simply because it isn't any instruction to an employee

[00:20:36] Speaker 00:
is binding on that employee of the agency.

[00:20:39] Speaker 00:
But that does not mean that it has the same force of law as a regulation would, as a true regulation like 3.317, which is binding across the board.

[00:20:49] Speaker 03:
The language that you're now saying was just a mistake about if it's diagnosable that it can't be covered, that is directly at odds with not just the statute, the language of the statute, but the purpose of the statute.

[00:21:04] Speaker 03:
And you're just saying, oh, well, that was a mistake.

[00:21:06] Speaker 03:
We didn't mean it.

[00:21:08] Speaker 03:
But by definition, you would be interpreting your regulation to be directly at odds with the statute.

[00:21:15] Speaker 00:
Right?

[00:21:15] Speaker 00:
Well, I think the way we described it in our brief is not so much that it's a mistake, but it results from the VA's internal use of diagnosable as shorthand.

[00:21:26] Speaker 00:
And I'll agree that that is not the ideal way to make that point.

[00:21:30] Speaker 00:
But it does get the job done.

[00:21:33] Speaker 03:
Well, when you say it gets the job done, the question is, does it get a job done consistent with the statute or not?

[00:21:39] Speaker 03:
I mean, it makes it seem like when you say using it as shorthand, that's exactly the shorthand that Congress was worried about.

[00:21:46] Speaker 00:
Well, no, Your Honor, because the VA is still acknowledging that by using shorthand, I mean it's shorthand for both undiagnosable and medically unexplained.

[00:21:57] Speaker 00:
And the real crux though of the sleep apnea analysis was that the numerous VA employees were asking questions about when to provide a medical examination despite an existing diagnosis of sleep apnea.

[00:22:13] Speaker 00:
So this was essentially, even within the questions that were being asked, there was essentially an understanding that sleep apnea itself is not a medically unexplained disease.

[00:22:23] Speaker 00:
And so the VA, in addition to noting

[00:22:26] Speaker 00:
that this does not qualify for presumptive service connection and the court need look no further than the plain meaning of sleep apnea to see that there is in fact a known pathophysiology and a known cause for sleep apnea so it would not qualify.

[00:22:41] Speaker 03:
Why didn't you just say that instead of saying because it has a diagnosis?

[00:22:47] Speaker 00:
Well, Your Honor, that would have perhaps been better but that's in the plain meaning of sleep apnea itself.

[00:22:54] Speaker 00:
And again, the live manual process is designed to be a flexible, constantly changing process in which the VA is responding to questions from employees in which the VA is providing guidance as necessary.

[00:23:11] Speaker 00:
So this is not perhaps the type of formal situation that would be presented had the petitioner sought, for example, a petition for rulemaking in which this court would then be able to

[00:23:23] Speaker 00:
review, this court would certainly have jurisdiction over a denial or partial denial of a petition for rulemaking.

[00:23:29] Speaker 00:
And in that scenario, the petitioner would have already presented their arguments to the VA, thus providing VA the chance to, on the record, describe it in full as reasons.

[00:23:40] Speaker 04:
Is the VA manual a statement of general policy or interpretation of general applicability formulated and adopted by the agency?

[00:23:48] Speaker 00:
In some provisions, may very well be.

[00:23:50] Speaker 00:
The provisions that we're dealing with here, we think better qualify as interpretations of the regulation.

[00:23:56] Speaker 00:
And so they're interpretations within a VA staff manual that are discussed most specifically in 552A2 and thus omitted from this court's jurisdiction in Section 502.

[00:24:07] Speaker 00:
And again, DAV in its reply brief says that

[00:24:11] Speaker 00:
there's a presumption of reviewability of agency action and we don't dispute that, but this type of interpretation by the agency is reviewable and indeed will better assist the court with a better and more complete record in a appeal from a petition for a rulemaking or in an individual veteran's case.

[00:24:30] Speaker 04:
So just to be clear, you think that the statements in the VA manual that were made in this case

[00:24:36] Speaker 04:
fall under 552A2B, which are statements of policy or interpretation, or no, C, which is administrative staff manuals, right?

[00:24:45] Speaker 04:
And you think since it falls under 552A2C, it can't fall under 552A1D.

[00:24:51] Speaker 04:
Do you think those are exclusive?

[00:24:55] Speaker 04:
Because when you said some things in the VA manual could be, but we think this one is an interpretation,

[00:25:02] Speaker 04:
Well, my problem with maybe it could be sometimes is that kind of contradicts your statutory interpretation argument, because as I understand your argument, it's either under 2C, and we don't have review authority, or it's under A1D, and we do have review authority.

[00:25:23] Speaker 04:
So can you revisit your view?

[00:25:25] Speaker 04:
What is the government's position

[00:25:27] Speaker 04:
on whether something in the VA manual is something over which we have review authority.

[00:25:32] Speaker 00:
I think my time is almost up.

[00:25:33] Speaker 00:
May I answer?

[00:25:35] Speaker 00:
So a couple answers.

[00:25:40] Speaker 00:
In the jurisdictional analysis, your honor is completely right that because this appears in the staff manual, this falls under 552A2C.

[00:25:50] Speaker 00:
And so the question I was getting at before, is this interpretive or a statement of general policy, is both of those are examples of rules that are not substantive rules.

[00:25:59] Speaker 00:
And so if the assumption is that a substantive rule that appears in the M21 adjudication manual could still be substantive, we're setting that to one side.

[00:26:10] Speaker 00:
And we're saying, so long as it is an interpretive rule or a statement of general policy that appears in the staff manual.

[00:26:16] Speaker 04:
For jurisdictional purposes, you're saying if there's something in the VA manual

[00:26:20] Speaker 04:
that amounts to a substantive rule of general applicability that we would then have review authority over it?

[00:26:27] Speaker 00:
Potentially, although even then, given the fact that the manual itself is not binding on the board, we think that there are- Not binding on the board and also not published in the Federal Register.

[00:26:36] Speaker 04:
Precisely, Your Honor.

[00:26:37] Speaker 04:
And not authorized, well, I guess it is authorized by law.

[00:26:40] Speaker 04:
You have a right to adopt things in the manual.

[00:26:43] Speaker 00:
So I'd say the short answer to your question, Your Honor, is that you are right.

[00:26:47] Speaker 00:
The M21 manual does fall under

[00:26:49] Speaker 00:
A552A2C.

[00:26:54] Speaker 04:
You have some rebuttal time, Mr. Stultz.

[00:27:06] Speaker 01:
Thank you.

[00:27:10] Speaker 01:
Listening to VA's argument, it does seem clearer now, or clearer perhaps than it did before,

[00:27:20] Speaker 01:
that there is no longer a dispute of whether or not what happened at record 100 and what happened with sleep apnea, perhaps even more egregiously since it is an entire condition that VA now reads out or now has changed the regulation not to allow anymore, that this is an administrative limiting.

[00:27:41] Speaker 01:
And because it is an administrative limiting, it is a substantive change in the law.

[00:27:46] Speaker 01:
They crossed out the word and, they crossed out the word or, put an and,

[00:27:50] Speaker 02:
I would agree with you if the result of this limitation, this new limitation that we're talking about, if it achieved a different result.

[00:28:03] Speaker 02:
But it seems to me that the result is the same.

[00:28:08] Speaker 01:
Your honor, I think that the record, it's discussion.

[00:28:11] Speaker 02:
Whether something is inconclusive for this week, for A or for B, and the reading combination, the result is the same if

[00:28:19] Speaker 02:
if it's inconclusive for both.

[00:28:23] Speaker 02:
So that's where you began to lose me.

[00:28:27] Speaker 02:
And maybe you can focus on that.

[00:28:28] Speaker 01:
Well, Your Honor, the record is replete with emails talking about a veteran's rheumatoid arthritis.

[00:28:37] Speaker 01:
And it is apparent from a reading of the record that is before the court that in those email exchanges and in the actions in November 2015,

[00:28:47] Speaker 01:
that a veteran's rheumatoid arthritis would have qualified as a medically unexplained chronic multi-symptom illness under the plain language of the regulation and the reading that DAV is saying is acceptable.

[00:29:04] Speaker 01:
And it is no longer service-connectable because now ideology and pathophysiology are required.

[00:29:11] Speaker 01:
Those prongs are both required.

[00:29:13] Speaker 01:
That is a specific example of going under

[00:29:17] Speaker 01:
The way that it was, the person wins.

[00:29:19] Speaker 02:
So before, you only needed one prong.

[00:29:21] Speaker 02:
And you're saying now you need both.

[00:29:23] Speaker 02:
Exactly, Your Honor.

[00:29:25] Speaker 02:
Exactly.

[00:29:27] Speaker 02:
But if the result of either the application of either prong is that you have inconclusiveness, then what's the difference?

[00:29:37] Speaker 01:
For example, if you followed a record of eight, if you follow that training manual, if you have a doctor come back and say, we don't know how he got it,

[00:29:47] Speaker 01:
We don't know how she got it.

[00:29:49] Speaker 01:
In other words, we don't know the ideology.

[00:29:51] Speaker 01:
You win.

[00:29:52] Speaker 01:
Or at least you get identified as a medically unexplained chronic multisymptom illness.

[00:29:56] Speaker 01:
Now, because of this substantive rule change, it comes back.

[00:30:00] Speaker 01:
We don't know where it is.

[00:30:01] Speaker 01:
OK, do we know how it's affecting the system, the pathophysiology?

[00:30:05] Speaker 01:
Because you have to have both.

[00:30:07] Speaker 01:
Before, we don't know where it came from was good enough, on a case-by-case basis at least, to get to the point of finding a medically unexplained chronic multisymptom illness.

[00:30:17] Speaker 01:
The adjudicator or the DRO would grant service connection and find a MUCMI.

[00:30:24] Speaker 01:
Now, after November 2015, you have to come back and you have to show we don't know where it came from and we don't know how it's affecting your system.

[00:30:31] Speaker 03:
But this is challengeable through an individual action where someone has one of these conditions, correct?

[00:30:39] Speaker 03:
It is challengeable.

[00:30:42] Speaker 03:
And I understand that the government says, well, then it'll last for our deference.

[00:30:45] Speaker 03:
But the problem is that the regulation that they're purporting to interpret merely parrots the statute.

[00:30:51] Speaker 03:
So they've never actually done an interpretation of the statute.

[00:30:55] Speaker 03:
And so you can't get deference for interpreting your own regulation if the regulation doesn't say anything.

[00:31:03] Speaker 01:
It is challengeable, certainly in court.

[00:31:06] Speaker 01:
It is challengeable on an individual basis.

[00:31:08] Speaker 01:
But I would urge the court to strike a doubt today

[00:31:12] Speaker 01:
Because it does narrowly limit the administrative action for the thousands, and perhaps millions, of practical veterans that are going to go to the regional offices and ask for DRO review upon whom this manual is binding in their adjudicatory decisions.

[00:31:29] Speaker 01:
And because of that, it really is important that the court strike them out.

[00:31:32] Speaker 03:
Under the court's recent decision in month, could this be challenged on a class action basis?

[00:31:39] Speaker 01:
One would think.

[00:31:39] Speaker 01:
Under this court's decision in month, of course,

[00:31:42] Speaker 01:
Well, under my reading, I'm sorry, of the decision in Monk, the Court of Appeals for Veterans Claims has a lot of work to do in figuring out the rules.

[00:31:50] Speaker 01:
I would think so.

[00:31:52] Speaker 01:
But that's a long way down the road, and it's going to be subject to a lot of decisions at the Veterans Court level.

[00:32:01] Speaker 01:
Today, there is a mechanism for this provision, for this to be struck down, and the Court should do so.

[00:32:10] Speaker 04:
Okay, I thank both counsel for their argument.

[00:32:13] Speaker 04:
The case is taken under submission.