[00:00:00] Speaker 01:
Please proceed as soon as you're ready.

[00:00:12] Speaker 01:
I'm John Cameron.

[00:00:13] Speaker 01:
I'm representing Mr. Diggs today.

[00:00:16] Speaker 01:
We are appealing today the Veterans Court's legal error in failing to interpret what Mr. Diggs believes were substantive appeals

[00:00:27] Speaker 01:
in accordance with the... Exactly.

[00:00:29] Speaker 04:
Is that a legal error versus a factual finding with respect to whether certain materials were enough to constitute a substantive appeal?

[00:00:41] Speaker 01:
I'm trying to understand the distinction you're trying to make.

[00:00:44] Speaker 01:
Right.

[00:00:44] Speaker 01:
Well, I think that it turns on the test.

[00:00:49] Speaker 01:
I think that the Veterans Court was concerned about seeing specific allegations of error

[00:00:56] Speaker 01:
in that formal appeal.

[00:00:58] Speaker 01:
Whereas under the Rivera test, the veteran merely has to state that he wants to continue the appeal, and he has to inform the board of the error that he wants the board to correct.

[00:01:11] Speaker 00:
So are you arguing that the error is a misapplication of the law to the facts of the case?

[00:01:18] Speaker 01:
No, Your Honor.

[00:01:19] Speaker 01:
We're arguing that it's the court's legal error in applying

[00:01:27] Speaker 01:
the wrong law.

[00:01:28] Speaker 03:
So let me try and help you.

[00:01:30] Speaker 03:
My recollection is that you argued that the Veterans Court here erred in applying Gibson.

[00:01:36] Speaker 03:
And when I read Gibson, I agree with you that it seems to require more than Rivera did.

[00:01:43] Speaker 03:
And so by relying on Gibson, you think the board has erred in its legal test.

[00:01:52] Speaker 03:
Is that right?

[00:01:53] Speaker 03:
Is that summarized?

[00:01:54] Speaker 01:
That's correct.

[00:01:55] Speaker 01:
And that the court also erred

[00:01:57] Speaker 01:
in relying on Gibson.

[00:01:59] Speaker 03:
Right, the Veterans Court.

[00:02:00] Speaker 01:
I'm sorry.

[00:02:00] Speaker 01:
I said Moore.

[00:02:01] Speaker 01:
I believe that if the Veterans Court and the Moore had applied the Rivera test.

[00:02:07] Speaker 03:
And so I've read both, Gibson and Rivera.

[00:02:10] Speaker 03:
And Gibson does require Moore.

[00:02:14] Speaker 03:
And we rejected that in Rivera, the Moore.

[00:02:17] Speaker 03:
But the problem for you that I see is that while this Veterans Court decision cites Gibson and doesn't cite Rivera,

[00:02:25] Speaker 03:
It nonetheless only cites Gibson for the statement that there's no indication in the March 1995 report that reflected any disagreement with the November SOC.

[00:02:42] Speaker 03:
Then they cite Gibson.

[00:02:44] Speaker 03:
That's actually a correct statement of law.

[00:02:45] Speaker 03:
That's exactly what Rivera says.

[00:02:47] Speaker 03:
All the veteran has to do is express disagreement.

[00:02:50] Speaker 03:
And so while Gibson does go on and require very specific allegations of what you disagree with, the Veterans Court in this case didn't cite Gibson for those specific allegations.

[00:03:04] Speaker 03:
It cited Gibson only for the proposition that the veteran here didn't express any disagreement at all.

[00:03:11] Speaker 03:
And that is correct law under Rivera.

[00:03:13] Speaker 03:
That is the test of Rivera.

[00:03:14] Speaker 03:
The veteran has to express disagreement.

[00:03:16] Speaker 03:
So how did the veteran err?

[00:03:19] Speaker 03:
How did the Veterans Court err in reliance on Gibson in light of the fact, unless I'm misreading their opinion, but I only read their opinion as relying on Gibson or citing it to say the veteran has to express disagreement?

[00:03:33] Speaker 01:
Well, I think under Rivera, he has to inform the VA that he wants to continue his appeal and inform the VA of what error he wants the board to correct.

[00:03:46] Speaker 01:
I don't think that the Veterans Court addressed that, those issues.

[00:03:51] Speaker 04:
But didn't the Veterans Court conclude that there was no or that the board found no expression of error or expression of disagreement?

[00:04:04] Speaker 01:
The court did find that, did make that finding.

[00:04:07] Speaker 04:
So what exactly do you think constitutes the expression of disagreement?

[00:04:13] Speaker 01:
I think that the disagreement was reflected in both the March 95 and the May 1995 statements in which the veteran stated that he believed he was entitled to service connection for his mental disorder.

[00:04:27] Speaker 04:
Okay, but that's not a statement.

[00:04:30] Speaker 04:
That doesn't come from the veteran himself.

[00:04:33] Speaker 04:
He's being quoted, correct?

[00:04:35] Speaker 01:
He's being quoted, Your Honor.

[00:04:36] Speaker 01:
His statements are being quoted by a VA employee, and it's added to the record.

[00:04:41] Speaker 04:
Did you actually raise the May 1995 examination report below?

[00:04:45] Speaker 01:
Your Honor, I think we did.

[00:04:48] Speaker 01:
I don't think that we emphasized it, but I think we raised all those pleadings.

[00:04:56] Speaker 01:
OK.

[00:04:58] Speaker 01:
We also believe that the Veterans Court erred in not addressing the regulation that required the board to provide notice of inadequacy.

[00:05:11] Speaker 01:
before the board dismissed Mr. Diggs' appeal.

[00:05:17] Speaker 01:
Both parties argued that issue and the Veterans Court failed to make any finding or decision on that issue.

[00:05:32] Speaker 01:
I'd like to reserve the rest of my time.

[00:05:35] Speaker 03:
Okay, Mr. Cameron.

[00:05:37] Speaker 03:
Ms.

[00:05:37] Speaker 03:
Cruiser.

[00:05:48] Speaker 02:
Good morning, Your Honors.

[00:05:49] Speaker 02:
May it please the Court?

[00:05:50] Speaker 02:
Mr. Diggs appeals a decision of the Veterans Court that affirmed two April 2014 Board's decisions.

[00:05:56] Speaker 02:
As Mr. Diggs has withdrawn his argument regarding steering unmistakable error in the second Board decision, obviously the only remaining issue for the Court is the argument regarding the earlier effective date.

[00:06:07] Speaker 02:
The Court should dismiss this appeal for lack of jurisdiction, but I would

[00:06:13] Speaker 03:
I think would agree with my assessment that Gibson does have statements in it that require a level of specificity that we rejected in Rivera.

[00:06:23] Speaker 03:
Isn't that right?

[00:06:24] Speaker 02:
Gibson does refer to, it quotes I believe the statute that says that in the substantive appeal there should be specific allegations of error or fact of the law which was interpreted in Rivera in a single issue case to mean

[00:06:40] Speaker 02:
you know, a certain level of specificity beyond a disagreement with or desire to appeal is not required, which as the court pointed out in the Veterans Court decision did not purport to apply any level of specificity beyond what's required in Rivera to these documents.

[00:07:01] Speaker 00:
So is a statement of appeal to a VA employee enough?

[00:07:06] Speaker 02:
Your Honor, the statutes and regulations require that the substantive appeal be filed by the veteran with the regional office, or by the veteran or representative, and that it set out certain requirements.

[00:07:20] Speaker 02:
In Rivera, those requirements were defined to be expression of disagreement or desire to appeal for a single issue.

[00:07:27] Speaker 02:
A statement of a veteran talking to a VA employee for a purpose other than appeal

[00:07:35] Speaker 02:
in not making any kind of expression.

[00:07:37] Speaker 00:
Even if the VA employee goes back to the office and says the veteran wants to appeal?

[00:07:45] Speaker 02:
We're not precluding that there could be circumstances where a veteran could make an oral statement and then it could end up, you know, being considered.

[00:07:53] Speaker 00:
Okay, so here we have a veteran who's mentally ill who tells the VA employee, I want to appeal.

[00:08:02] Speaker 00:
Why isn't that one of the circumstances that you think would be permissible?

[00:08:08] Speaker 02:
Well, first of all, I'm not indicating that would be a broad rule.

[00:08:14] Speaker 02:
The statute does make very clear that there are filing requirements to making a substantive appeal.

[00:08:19] Speaker 02:
I simply did not want to rule out some kind of factual circumstance not before us here.

[00:08:24] Speaker 04:
Well, there was a report that was actually submitted to the VA, correct?

[00:08:30] Speaker 02:
What occurred was,

[00:08:32] Speaker 02:
In determining for the veterans and competency, a field examiner went to met with him and his wife twice to see if the wife should be the payee for his pension benefits.

[00:08:43] Speaker 02:
In the course of those interviews, he made statements indicating that he had filed a claim.

[00:08:48] Speaker 02:
So it does not even go to the example the court made where he told the VA employee specifically that he wanted to appeal.

[00:08:56] Speaker 02:
He simply referenced the fact that he had made a claim.

[00:08:59] Speaker 04:
Well, he referenced the fact that he made a claim and that it was on appeal, right?

[00:09:05] Speaker 02:
In the May 1995 statement, I believe he mistakenly indicated he had a case at the Court of Veterans' Appeals.

[00:09:16] Speaker 02:
In the March 1995 report, the examiner stated, he has filed a claim for service connection regarding his mental disorder.

[00:09:27] Speaker 02:
which seemed to be a kind of a factual statement as to what benefits he might be, could receive potentially.

[00:09:33] Speaker 04:
Let's talk about the practical reality here.

[00:09:36] Speaker 04:
There is no doubt that he suffered from this mental illness all the way back to the time of his service, correct?

[00:09:44] Speaker 02:
He's been awarded service connection going back to November 1997, that's correct.

[00:09:50] Speaker 04:
Okay.

[00:09:50] Speaker 04:
So, I mean, so this is just a question of, it's not a question of whether he

[00:09:55] Speaker 04:
really should have been entitled to it.

[00:09:56] Speaker 04:
It's a question of whether there's some procedural defect that's going to present him from getting what he really should have gotten.

[00:10:03] Speaker 02:
The question is whether his earlier claim that he made and then failed to file a substantive appeal became final.

[00:10:13] Speaker 04:
Right.

[00:10:14] Speaker 04:
That's what I'm saying.

[00:10:15] Speaker 04:
Had he filed that appeal, there's no doubt that the earlier date would apply.

[00:10:22] Speaker 02:
It's a question of how far earlier would go because of the earlier claim that he made that was dismissed.

[00:10:26] Speaker 02:
That's correct.

[00:10:29] Speaker 02:
Going back to the jurisdictional question, however, Mr. Diggs is only raising questions of fact and how the Veterans Court... How do we interpret Rivera now?

[00:10:41] Speaker 00:
Are you saying that there has to be a substantive filing that with counts and

[00:10:50] Speaker 00:
separated paragraphs, statements in jurisdiction.

[00:10:52] Speaker 00:
It's got to be that?

[00:10:55] Speaker 02:
No, Your Honor.

[00:10:57] Speaker 02:
Pursuant to the statute of regulations, the substantive appeal needs to be filed with the regional office.

[00:11:01] Speaker 02:
It can be either the Form 9 or correspondence raising similar issues.

[00:11:05] Speaker 02:
Under Rivera, when there's a single issue, the veteran needs to send... It doesn't technically have to be filed.

[00:11:10] Speaker 04:
It could just be a letter.

[00:11:11] Speaker 02:
Correct.

[00:11:11] Speaker 02:
But I'm filing in the sense of affirmatively sending it to me.

[00:11:16] Speaker 04:
Call up on the phone and say I want to appeal?

[00:11:19] Speaker 02:
I'm not sure if that would be sufficient.

[00:11:23] Speaker 00:
What about an e-mail?

[00:11:24] Speaker 02:
Oh, you know, the regulations says it should be in writing, actually.

[00:11:27] Speaker 02:
So I believe that... What about an e-mail?

[00:11:32] Speaker 02:
I think that would be another factual determination that the board would need to consider there.

[00:11:38] Speaker 02:
However, these differ, these circumstances that you're raising differ because here the veteran took no action to appeal.

[00:11:43] Speaker 02:
He happened to speak to this field examiner

[00:11:46] Speaker 00:
in the situation regarding whether his wife should... But the record reflects that he was harboring an understanding that an appeal was pending.

[00:11:58] Speaker 02:
The record reflects that he knew he had filed a claim.

[00:12:02] Speaker 02:
I think these factual issues, though, kind of raise the problem of why there is a formal appeal process in the first place.

[00:12:09] Speaker 02:
The veteran receives a decision, then they file a notice of disagreement.

[00:12:12] Speaker 02:
And they get the statement of the case that sets out more facts than law for them to understand why the regional office made the decision.

[00:12:19] Speaker 02:
And then they have the option of filing a substantive appeal.

[00:12:22] Speaker 02:
It can be corresponded, something in writing.

[00:12:25] Speaker 02:
However, trying to figure out what a veteran meant by offhand statements that he made to VA employees simply is paranoid schizophrenic.

[00:12:33] Speaker 04:
I mean, we're not talking about somebody who's able to even understand all the rules and regulations, right?

[00:12:41] Speaker 02:
I think there's two issues there.

[00:12:43] Speaker 02:
One is that the law does provide that the claimant himself does not need to file the substantive appeal.

[00:12:49] Speaker 02:
It can be a representative, a legal guardian.

[00:12:52] Speaker 02:
If he's incompetent, it could be the fiduciary or a net's friend or the claimant himself.

[00:12:55] Speaker 02:
So there is space in the law for people who are under conditions of incompetency to still go forward through a more formal appeal process.

[00:13:02] Speaker 02:
There's not a carve out to make oral statements to appeal.

[00:13:07] Speaker 03:
Don't you want to return to your position

[00:13:10] Speaker 03:
that all of these things regarding whether he did enough in any individual case is a question of fact, or at best, application of law to fact, and not the overarching legal question?

[00:13:22] Speaker 02:
Yes.

[00:13:22] Speaker 02:
I would like to return to that, Your Honor.

[00:13:25] Speaker 02:
Good plan.

[00:13:27] Speaker 02:
As you know, reviewing a challenge to a factual determination or a challenge to a law regulation as applied to the facts is beyond the jurisdiction of this court.

[00:13:36] Speaker 02:
The only issue is whether these specific documents, in fact, contain the requisite contents to be a substantive appeal.

[00:13:44] Speaker 02:
This is not a question, a legal issue, as to whether a document that does not express disagreement could ever be a substantive appeal or how the statute should be interpreted.

[00:13:55] Speaker 02:
It's simply a question as to what the specific contents of this document show about his intent to appeal, which is a question of fact.

[00:14:03] Speaker 02:
There is no different legal interpretation of any

[00:14:06] Speaker 02:
statute law regulation advanced by Mr. Diggs that would make the document a substantive appeal.

[00:14:12] Speaker 02:
Mr. Diggs simply disagrees with how the board and the Veterans Court interpreted the content of the document and what import they gave to the facts about how it was created.

[00:14:23] Speaker 02:
Mr. Diggs would only want this tort to find that the 1995 documents adequately identified errors that he wanted the board to correct.

[00:14:32] Speaker 02:
And that's a factual determination.

[00:14:36] Speaker 02:
Furthermore, as we've discussed, Rivera was about what level of specificity was required.

[00:14:44] Speaker 02:
Here, the Veterans Court did not require any level of specificity that conflicted with Rivera.

[00:14:48] Speaker 02:
And the Veterans Court did not purport to apply any different tests that would conflict with Rivera.

[00:14:55] Speaker 02:
There's no difference of interpretation of the law between Mr. Didge and the Veterans Court.

[00:14:59] Speaker 02:
The only difference is what Mr. Didge believes factually should be read from the content

[00:15:04] Speaker 02:
of the documents, namely that these statements show that he wanted to appeal.

[00:15:08] Speaker 02:
And that is a factual question that is beyond the jurisdiction of this court.

[00:15:15] Speaker 00:
Well, it may be factual as to whether the statements were ever made.

[00:15:20] Speaker 00:
But what about the interpretation of whether any statement at all, any verbal statement at all, would be satisfactory under Rivera?

[00:15:32] Speaker 02:
That's a different question, Your Honor.

[00:15:33] Speaker 02:
Is that a legal question?

[00:15:36] Speaker 02:
The question of whether a verbal statement could ever, for instance, as the statute says, it should be made out in writing, the question of whether a verbal statement could ever be an appeal would be a legal question.

[00:15:51] Speaker 02:
However, Mr. Didge does not argue in this case that a verbal statement should be an appeal.

[00:15:57] Speaker 02:
He asserts that

[00:15:58] Speaker 02:
the 1995 documents meet the requisite veto test to be a substantive appeal.

[00:16:04] Speaker 02:
He simply disagrees factually with how they were interpreted, that they were interpreted not to be a substantive appeal.

[00:16:10] Speaker 02:
He asserts that the statements were in writing and were submitted to the regional office, which the Veterans Court disagrees with and says that's not what occurred and that's a misrepresentation of the document.

[00:16:26] Speaker 02:
Furthermore, any suggestion that the principles regarding reading the veteran's documents liberally or not applying a Four Corners Test are really not raised by the situation.

[00:16:41] Speaker 02:
And those cases regard when the board does not look at other evidence or theories that were not raised in a substantive appeal document.

[00:16:48] Speaker 02:
Here, there's simply a situation where the veteran did not timely file a substantive appeal at all.

[00:16:57] Speaker 02:
Finally, if the court concludes that there is jurisdiction, the Veterans Court properly found no error in the board's decision.

[00:17:07] Speaker 02:
The Veterans Court properly found this document was not filed by Mr. Diggs, was not created by him, and did not contain any disagreement or a desire to appeal.

[00:17:16] Speaker 02:
Any argument that these statements could constitute an appeal would really

[00:17:24] Speaker 02:
contravene the appellate system that is set up for the veteran through the acts of congress and regulations.

[00:17:31] Speaker 02:
The statutes 38 USC 7105 A and B and the regulations clearly show that the appeal must be in writing.

[00:17:38] Speaker 02:
It must come from the veteran himself or someone representing his interests, which is obviously to make sure that the veteran does have an intent and consent to appeal.

[00:17:47] Speaker 02:
Furthermore, as the court has noted, these statements do not show any

[00:17:52] Speaker 02:
disagreement with what the regional office did or a desire to appeal.

[00:17:55] Speaker 02:
And trying to figure out what he meant in these statements definitely shows the pitfall of trying to construe documents as an appeal that do not come through the appellate process.

[00:18:06] Speaker 02:
So therefore, if there's no further questions, I conclude that the court should dismiss for lack of jurisdiction or affirmatively appeal the Veterans Court.

[00:18:14] Speaker 02:
Thank you.

[00:18:16] Speaker 03:
Mr. Cameron?

[00:18:18] Speaker 01:
Yes, Your Honor.

[00:18:20] Speaker 01:
I would like to respond that

[00:18:22] Speaker 01:
I don't believe in meeting the Veterans Court decision that it ever did address the Rivera standard of whether Mr. Diggs raised the issue of what claim, if any, he wanted the board to correct.

[00:18:36] Speaker 01:
So I think that the legal standard that Rivera required wasn't addressed.

[00:18:45] Speaker 01:
Even though the court did address the question of disagreement with me,

[00:18:51] Speaker 01:
with the statement of the cash in the writing decision.

[00:18:54] Speaker 01:
I would also like to point out that in 1995, the regulation at 20.301 of Title 38 at page 3317 of the appendix provides that the substantive appeal may be filed by claimant or is representative or fiduciary or another person acting as next friend.

[00:19:21] Speaker 01:
did not require that those people file the claim.

[00:19:25] Speaker 01:
I think that the important issue is not necessarily who filed the claim, but that the document found its way into the claims file within the appeal period.

[00:19:38] Speaker 01:
And given that the Board and the VA had a duty to liberally construe all the documents within the claims file, then the Board was required to look at that

[00:19:47] Speaker 00:
dot those documents and determine whether they were in fact a valid substantive appeal or whether there was an adequate that's and that's a problem with the case even if the board had looked at at all these facts and i have i had another citation to the record where the veteran or the v a employees says that hit hit that mr dix had told him that his claim is presently pending in the veterans court of appeals and to me that indicates that there's some sort of understanding that he had that he had an appeal but

[00:20:17] Speaker 00:
Putting all that to a side, when the VA considers all of these different facts and says, does this rise to an intent to appeal or does this rise satisfy Rivera?

[00:20:31] Speaker 00:
And they say yes or no, they're applying law to the facts of the case.

[00:20:36] Speaker 00:
And that, we don't have jurisdiction over that particular issue.

[00:20:42] Speaker 00:
And you need to rise above that.

[00:20:45] Speaker 00:
You need to show when you're running out of time, and I don't want to, well, no, you have a good amount of time left.

[00:20:52] Speaker 00:
You need to show how this is a legal question before us.

[00:20:57] Speaker 00:
Otherwise, we can't review the arguments that you've made.

[00:21:01] Speaker 01:
Right.

[00:21:02] Speaker 01:
I understand, Your Honor.

[00:21:03] Speaker 01:
OK.

[00:21:03] Speaker 01:
But I don't recall the board actually addressing the standard in Rivera.

[00:21:08] Speaker 01:
Perhaps it did, but I don't recall it.

[00:21:14] Speaker 01:
All right.

[00:21:16] Speaker 01:
I don't have any further argument.

[00:21:18] Speaker 01:
Thank you.

[00:21:19] Speaker 03:
Okay, we thank both counsel for their argument.

[00:21:21] Speaker 03:
The case is taken under submission.

[00:21:24] Speaker ?:
All rise.