[00:00:00] Speaker 03:
Good morning, ladies and gentlemen.

[00:00:05] Speaker 03:
The court has four cases before it this morning, only three of which are being argued today.

[00:00:10] Speaker 03:
The first case is a Cree versus Wilkie.

[00:00:16] Speaker 03:
It is case number 171749.

[00:00:21] Speaker 03:
And it is an appeal from the United States Court of Appeals for Veterans Claims.

[00:00:29] Speaker 03:
Ms.

[00:00:30] Speaker 03:
Bennett, I understand you want two minutes for rebuttal?

[00:00:33] Speaker 02:
Yes, Your Honor.

[00:00:34] Speaker 03:
Okay, you may begin.

[00:00:38] Speaker 02:
May it please the Court?

[00:00:39] Speaker 02:
This appeal is about requiring the Board to abide by a fair process.

[00:00:44] Speaker 02:
There are three criteria governing effective withdrawal of an appeal under 38 CFR Section 20.204 B1.

[00:00:54] Speaker 02:
The withdrawal must be explicit

[00:00:56] Speaker 02:
unambiguous, and done with a full understanding of the consequences on the part of the claimant.

[00:01:02] Speaker 01:
When you say those are three requirements, you're not reading from the regulation, right?

[00:01:08] Speaker 02:
Correct, Your Honor.

[00:01:08] Speaker 02:
I'm not reading from the regulation.

[00:01:10] Speaker 02:
The three criteria are an interpretation of the regulation by the Veterans Court that's been put forward in the DeLizio case and more recently in the presidential Warren v. McDonald case.

[00:01:21] Speaker 02:
But I would agree that the regulation itself is silent.

[00:01:24] Speaker 01:
Do we have to decide whether that

[00:01:27] Speaker 01:
three-part interpretation is in fact a proper interpretation of one or the other of the two regulations that you've relied on here?

[00:01:38] Speaker 02:
I would submit that the court has to adopt some interpretation.

[00:01:42] Speaker 02:
I think the VA's brief cites to a number of non-precedential decisions that have recently been put forward by the Veterans Court where you see that there is some disparity in terms of how this rule is being applied.

[00:01:55] Speaker 02:
And this court is free to reinterpret it differently than the Veterans Court.

[00:01:59] Speaker 02:
But at a minimum, I think this court has to interpretation the regulation.

[00:02:02] Speaker 02:
So there is some guidance both to the board and to claimants who are in this situation.

[00:02:09] Speaker 03:
So it's your view that the interpretation of the regulation as applied by the board was unreasonable?

[00:02:20] Speaker 02:
There was no application of the legal standard, the three criteria by the board.

[00:02:25] Speaker 02:
There were absolutely no factual findings as to what the veteran did or did not understand.

[00:02:31] Speaker 02:
And so we would argue it's not a misapplication, it's that there's no application and that's erroneous and cannot shield the VA from further review.

[00:02:40] Speaker 03:
When I look at this transcript on which you rely, I feel like I'm coming in in the middle of a conversation.

[00:02:48] Speaker 03:
It appears that there was at least some understanding on the part of the hearing officer that something was going to be withdrawn.

[00:03:03] Speaker 03:
Where did that come from?

[00:03:04] Speaker 02:
I would agree with Your Honor.

[00:03:05] Speaker 02:
Unfortunately, whatever conversation may have been had was not on the record as was required by the regulation.

[00:03:12] Speaker 02:
What seems to have happened is that the

[00:03:15] Speaker 02:
representative who was not an attorney, he was assigned by the disabled veterans association of America, had some sort of off the record discussion with the hearing officer.

[00:03:25] Speaker 02:
We have no indication that that conformed to what Mr. Acree understood, what he wanted to happen.

[00:03:32] Speaker 02:
And I believe if Mr. Acree were

[00:03:35] Speaker 02:
being called to testify.

[00:03:36] Speaker 02:
I mean, we can't rely on this, but he would say that he never intended to give up certain claims, especially the PTSD claim and the claim for Gulf War hazards.

[00:03:45] Speaker 02:
Those were incredibly important to him.

[00:03:47] Speaker 02:
His representative had some sort of conversation with the hearing officer on the record.

[00:03:52] Speaker 02:
He said yes, and then it was over.

[00:03:54] Speaker 02:
And I think that that just illustrates the need for the questions from the hearing officer to be coming directly to the veteran.

[00:04:01] Speaker 02:
And were there to be some clarification of,

[00:04:04] Speaker 02:
You understand this is being given up forever, or not forever, but you understand that you are giving up this claim.

[00:04:09] Speaker 02:
You understand what the consequences of this withdrawal are.

[00:04:13] Speaker 02:
Are you on any substances today that would prevent you from agreeing to what we understand is occurring?

[00:04:20] Speaker 02:
And it would take really 30 seconds.

[00:04:23] Speaker 02:
It would not be administratively burdensome and would

[00:04:26] Speaker 02:
guarantee that a claimant, someone who's not a sophisticated litigant and in this situation, someone who didn't have legal counsel, wouldn't end up after that hearing unsure as to what had happened and what he had given up.

[00:04:41] Speaker 01:
Do you think that there is a similar kind of requirement when the withdrawal is submitted on a piece of paper?

[00:04:50] Speaker 01:
And if, I mean, I don't see that in the regulation.

[00:04:53] Speaker 01:
That is, the regulation says in writing, and it doesn't say, and you must also, I don't either have a certificate that says, I fully understand everything, and I work with the kind of language you use, I'm not on impairing medications or something.

[00:05:12] Speaker 01:
Why would there be more at an oral hearing than in writing?

[00:05:17] Speaker 02:
I understand the regulation just states certain information that must be provided to withdraw the claim.

[00:05:26] Speaker 02:
I'd submit that the standard should be different because when you're submitting something in a writing, you have time to go ask questions of someone.

[00:05:35] Speaker 02:
You have time to think about it.

[00:05:36] Speaker 02:
You have time to maybe research and make sure that you're comfortable with what it is that you're signing.

[00:05:41] Speaker 02:
You're affirmatively making the submission.

[00:05:43] Speaker 02:
I think a really good analogy is a settlement agreement that's done

[00:05:47] Speaker 02:
you know, in the courtroom or in the midst of a proceedings.

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If you have a settlement agreement that's in writing, that's submitted to the court, you have the text of what the parties have agreed to.

[00:05:57] Speaker 02:
And you can presume that there's informed consent and that everyone is entering into this willingly.

[00:06:02] Speaker 02:
But when a settlement agreement is put on the record in court, very often there's a discussion with the court that everyone has agreed to these terms.

[00:06:11] Speaker 02:
There are no misunderstandings because the last thing that

[00:06:14] Speaker 02:
A court presiding over a case that's settled wants to happen is that people are not sure as to what it is they've agreed to.

[00:06:20] Speaker 02:
So just the nature of submitting something in a writing, which has kind of built into it informed consent and- The veteran himself does not have to sign this writing, right?

[00:06:33] Speaker 02:
No, his representative could sign the writing.

[00:06:37] Speaker 03:
So is it your position that to the extent that we're off the record conversations, that those off the record conversations actually

[00:06:43] Speaker 03:
violated the writing requirement?

[00:06:47] Speaker 02:
There was no writing and I think the writing requirement just doesn't apply in this case.

[00:06:51] Speaker 02:
If the representative had had these conversations with the hearing officer, gone back to his client, they had written it all down and he'd signed it and they'd submitted it, we wouldn't be here today.

[00:07:02] Speaker 02:
We're here today because we have no confirmation that the veteran actually

[00:07:07] Speaker 02:
stood what was transpiring in the middle of this hearing, where people are nervous and you have a person of authority on the bench.

[00:07:14] Speaker 02:
And just saying yes and not delving into that further, I'd submit, is an error under the controlling precedent of the Veterans Court.

[00:07:25] Speaker 03:
The Red Reef points to a CD or a disc that was submitted to the hearing officer beforehand.

[00:07:33] Speaker 03:
And the implication is that somehow that

[00:07:37] Speaker 03:
could be read to narrow what the party wanted to discuss.

[00:07:43] Speaker 03:
I can't find that in the record or any reference to it in the record.

[00:07:47] Speaker 03:
Do you have access to that CD or disc?

[00:07:49] Speaker 02:
I've never seen that CD or disc.

[00:07:51] Speaker 02:
What I would say is that even if you assume that the disc stands for what the VA says it stands for, you perhaps have something that is

[00:08:01] Speaker 02:
express and unambiguous, but it still doesn't get to what the claimant did or did not understand was happening on the day of that hearing or whether he even had the capacity to understand what was happening at the hearing.

[00:08:14] Speaker 02:
And so the whole error here that is really critical, and this is bottom of page three of the appendix, top of page four, is that the Veterans Court acknowledged Alisio, never suggested there was anything wrong with this standard, said first two criteria are met and we find them

[00:08:30] Speaker 02:
met very strongly.

[00:08:31] Speaker 02:
So we need not address the third factor.

[00:08:34] Speaker 02:
And that is the error.

[00:08:35] Speaker 02:
That cannot be the rule that in some situations, the board has to apply all three factors.

[00:08:41] Speaker 02:
And in other situations, it can only apply two and then stop and not worry about whether or not the claimant understood.

[00:08:47] Speaker 03:
But did the court really say we don't need to address the third factor?

[00:08:50] Speaker 03:
Or did the court say that when the first two factors are so clearly apparent that we can infer that the third factor was satisfied?

[00:09:01] Speaker 02:
It said that the board was not required to delve into further analysis and that the explanation provided is adequate.

[00:09:11] Speaker 02:
Respectfully, it's never going to be the case where the first two factors can be so strong that you can presume the third factor because you have no indication one way or the other what the veteran actually thought.

[00:09:25] Speaker 02:
It would have taken very little to just simply ask you understand that you are

[00:09:30] Speaker 02:
giving up these claims, and here are the claims that you're giving up, and then there would be a record as to what the veteran understood.

[00:09:36] Speaker 02:
But just saying yes can never get you to satisfy the third factor that someone actually understood.

[00:09:44] Speaker 03:
To the extent that we find that the court properly cited the legal standard and then made a finding that the legal standard was satisfied, do we have the jurisdiction to review that conclusion?

[00:09:58] Speaker 02:
I think you absolutely have jurisdiction.

[00:10:00] Speaker 02:
We have no indication at the board level that this controlling legal standard, a rule of law was ever applied.

[00:10:08] Speaker 02:
The board never mentioned the three criteria in Delizio, never made any findings.

[00:10:13] Speaker 02:
The only thing that the board wrote is that the withdrawal is effective without giving any indication as to how they got there.

[00:10:20] Speaker 02:
And then the Veterans Court in reviewing how the board may have got there said, well,

[00:10:25] Speaker 02:
You know, looking at this, we think the first two criteria satisfied need not reach the third.

[00:10:30] Speaker 02:
And I would really direct.

[00:10:33] Speaker 01:
Yes.

[00:10:34] Speaker 01:
We don't have jurisdiction to review what the board did, only legal interpretations that the Veterans Court adopted.

[00:10:45] Speaker 02:
I would agree.

[00:10:46] Speaker 02:
But I would say that in the Martin v. McDonald case, which is 761 F third,

[00:10:52] Speaker 02:
At 1369, this court said, this court's jurisdiction allows us to determine whether a veteran's court decision may have rested on an incorrect rule of law, and moreover, to determine that the correct rule of law requires factual determinations missing from the board's decision.

[00:11:09] Speaker 02:
And so here, we believe that

[00:11:12] Speaker 02:
everything that happened below rested on an incorrect rule of law.

[00:11:16] Speaker 01:
Yes, go ahead.

[00:11:16] Speaker 01:
What was the incorrect rule of law?

[00:11:19] Speaker 01:
We don't get to decide everything that happened below.

[00:11:22] Speaker 01:
We get to decide whether the Veterans Court, I think the language in Martin, building on Collin Antonio, I can't ever say that case's name, is that

[00:11:34] Speaker 01:
Where the Veterans Court decision may well have rested on a legal error, we can determine whether what it did did, in fact, rest on a legal error.

[00:11:48] Speaker 01:
And what is the legal error?

[00:11:50] Speaker 01:
Is it that the Veterans Court, at the top of page three is it, said DeLisio and at the bottom of page three seems to have changed the

[00:12:02] Speaker 01:
three-part test into a two-part test.

[00:12:05] Speaker 02:
Exactly.

[00:12:05] Speaker 02:
Reading out the third requirement is the legal error and excusing the board from doing the full analysis required by the... Suppose that we didn't think that the regulations required in all circumstances what DeLisio said in that sentence in DeLisio.

[00:12:32] Speaker 01:
Do we have an independent basis for saying that the apparent inconsistency between the top of page three and the bottom of page three is a legal error?

[00:12:46] Speaker 02:
I would answer yes, because it's problematic in this case that the Veterans Court is saying that there can be some sort of factual determination between situations where there is some confusion and situations where there

[00:13:02] Speaker 02:
not, that that standard would be incredibly difficult to apply and would be incorrect and unfair to the claimant in a non-adversarial setting when the VA is required to really help the veteran get through this process rather than put the burden on them to demonstrate some sort of confusion in order to have the protections under that federal regulation.

[00:13:28] Speaker 03:
You're just about into your bottle.

[00:13:29] Speaker 03:
You want to keep the rest of your time?

[00:13:31] Speaker 02:
Yes, I'll reserve my time.

[00:13:32] Speaker 00:
Good morning, and may it please the court.

[00:13:46] Speaker 00:
Mr. Ackery essentially asked the court to review factual findings over which this court lacks jurisdiction, at least with respect to the withdrawal argument.

[00:13:54] Speaker 00:
And in any event, the court reached the right result.

[00:13:58] Speaker 03:
Clearly, if repartest is what's appropriate,

[00:14:03] Speaker 03:
And the court had said, we look at every part, and we make factual findings as to every part.

[00:14:08] Speaker 03:
I think you're right.

[00:14:09] Speaker 03:
We wouldn't have jurisdiction over that.

[00:14:11] Speaker 03:
The real question, though, is the question that Judge Toronto posed, which is, what is our obligation vis-a-vis interpreting this regulation and its meaning?

[00:14:20] Speaker 00:
Your Honor, yes, I'd like to address that.

[00:14:23] Speaker 00:
On page three of the appendix is the pertinent passage I think Judge Toronto referred to.

[00:14:28] Speaker 00:
The board was making a factual finding that is reviewed by the Veterans Court for clear error.

[00:14:33] Speaker 00:
And the analysis that the Veterans Court applied was to look at whether there was an adequate statement, adequate explanation of the reasons or basis for the decision.

[00:14:42] Speaker 00:
So the Veterans Court's analysis was focused on whether the board said enough to reach this conclusion that Mr. Ackery had withdrawn his claims.

[00:14:52] Speaker 00:
And what it said was, in this situation, in this case, it actually uses those words, in this case, it was not necessary

[00:15:00] Speaker 00:
for the board, it's not erroneous for purposes of making that adequate explanation of the withdrawal finding to explain and reach an affirmative decision as to whether or not Mr. Ackery understood the consequences.

[00:15:13] Speaker 03:
But it's clear they collapsed a three-part test into a two-part test, right?

[00:15:18] Speaker 00:
Well, Your Honor, I would agree.

[00:15:19] Speaker 00:
As the Veterans Court said, the board did not reach a specific factual finding as to whether or not Mr. Ackery understood the consequences.

[00:15:27] Speaker 00:
I think our position is that

[00:15:28] Speaker 00:
That is not legally erroneous.

[00:15:29] Speaker 00:
And for purposes of jurisdiction, I do want to make sure that it's clear that the Veterans Court's jurisdiction here is to look at basically two things.

[00:15:38] Speaker 00:
Was there a clear error with respect to this factual finding?

[00:15:42] Speaker 00:
And secondly, alternatively, was there an adequate explanation of the reasons or basis for the decision?

[00:15:48] Speaker 00:
Both of those are factual determinations.

[00:15:50] Speaker 03:
Right, but the clear error has to depend on the legal standard that's governing the factual determinations, right?

[00:15:57] Speaker 00:
Yes, your honor.

[00:15:57] Speaker 00:
That's correct.

[00:15:58] Speaker 00:
And, and, but the, the, there's what the board did here, consistent with the regulation was adopt a factual finding that was consistent with what the regulation requires, which as the, uh, appellant concedes, the regulation is silent as to what it takes to effectively withdraw a claim.

[00:16:15] Speaker 00:
And the board did make a factual finding.

[00:16:17] Speaker 00:
Um, the board on page 11 of the appendix did say under the heading of finding a fact and noted the fact that Mr. Acre had testified before the hearing officer during this hearing.

[00:16:27] Speaker 00:
that a transcript was of the record, and that a request to withdraw had been made.

[00:16:33] Speaker 00:
And that is a sufficient fact finding.

[00:16:34] Speaker 00:
The board doesn't need to cite DeLisio specifically.

[00:16:37] Speaker 00:
That is not the board's obligation.

[00:16:38] Speaker 03:
Well, I mean, the question is, and we still have to go back to first principles here.

[00:16:41] Speaker 03:
I mean, are you backing away from DeLisio as a governing legal standard?

[00:16:46] Speaker 00:
No, Your Honor.

[00:16:47] Speaker 00:
I think we're not, as we've said in our brief, we're not really taking issue with DeLisio.

[00:16:50] Speaker 00:
But we don't believe that in this case, the board.

[00:16:53] Speaker 03:
But you're saying the board doesn't have to apply it in every case.

[00:16:55] Speaker 00:
Well, I'm not saying that the board doesn't have to apply it.

[00:16:57] Speaker 00:
What I'm suggesting is that the board does have to apply the regulation.

[00:17:02] Speaker 00:
And the board complied with that obligation.

[00:17:05] Speaker 00:
What DeLisio really does, if you look at the way the Veterans Court has interpreted DeLisio since it was handed down in 2010 in a series of non-published decisions, some of which we cite in our brief, I believe, page 27, is that it's taken really a practical approach.

[00:17:20] Speaker 00:
It's looking at situations where maybe the veteran has said something inconsistent in the record,

[00:17:24] Speaker 00:
Maybe something has been said that's contradictory or ambiguous as to whether the veteran intentionally withdraws.

[00:17:31] Speaker 00:
In those situations, the Veterans Court has found on a clear air basis, it's appropriate to remand for the board to make further factual findings.

[00:17:38] Speaker 00:
We don't have those facts.

[00:17:39] Speaker 01:
I think we're all kind of getting at the same worry here.

[00:17:45] Speaker 01:
The Delizio language says A, B, and C.

[00:17:50] Speaker 01:
Do you agree that A, B and C are required by one or the other of these two regulations?

[00:17:59] Speaker 00:
No, Your Honor.

[00:17:59] Speaker 00:
I don't believe that they are.

[00:18:00] Speaker 01:
So you are disagreeing with Delicio's statement, the sentence, forget about the, as applied in Delicio, it's statement, the sentence as a legal interpretation of 2204 or 3103.

[00:18:17] Speaker 00:
Well, Your Honor, to your question about whether it's required, the plain language of the regulation does not require those findings.

[00:18:23] Speaker 01:
You know that's not the question.

[00:18:25] Speaker 00:
Well, Your Honor, I just want to be clear that we're not taking issue with those findings as with the Delicio formulation.

[00:18:32] Speaker 03:
As long as we don't have to apply it.

[00:18:35] Speaker 00:
Well, Your Honor, I think the question comes down to the way that the Veterans Court has applied those criteria have not been a hard and fast rule that the Board in every single case

[00:18:46] Speaker 01:
So you are taking issue with the sentence in DeLisio as a straightforward interpretation of what these regulations require?

[00:18:58] Speaker 00:
Well, I think DeLisio, Your Honor, I think I do want to make sure I answer your question, but the DeLisio itself was actually not interpreting the language in the regulation.

[00:19:08] Speaker 00:
DeLisio was actually dealing on it.

[00:19:09] Speaker 00:
It analyzed the situation in which a purported withdrawal had occurred prior to a regional office decision.

[00:19:16] Speaker 01:
So it wasn't really grappling with the decision of... So you may want to characterize it as dictum.

[00:19:24] Speaker 01:
I'm asking, do you agree with the proposition that those three requirements must be met for there to be a withdrawal other than... Yes.

[00:19:33] Speaker 00:
Yes, Your Honor.

[00:19:34] Speaker 00:
I think we do.

[00:19:34] Speaker 00:
We're not challenging it.

[00:19:35] Speaker 00:
We're not challenging it.

[00:19:36] Speaker 01:
So if you take that as a given, then how do you square that with the bottom sentence of page three, which says,

[00:19:46] Speaker 01:
In this case, the first two parts, even generously, the first two parts satisfy the third part.

[00:19:53] Speaker 00:
Well, Your Honor, what I think the Veterans Court was determining was, again, whether or not the board had adequately made an explanation, made sufficient factual findings to provide for meaningful judicial review.

[00:20:05] Speaker 00:
That was the prism through which the Veterans Court looked.

[00:20:07] Speaker 00:
It was applying that standard to determine whether, if it was explicit and unambiguous

[00:20:13] Speaker 00:
And based on the record, in the absence of any other indication in the record that Mr. Ackery did not understand the consequences of what was happening here.

[00:20:20] Speaker 03:
So in other words, if one and two are clearly satisfied, you don't need three anymore.

[00:20:25] Speaker 00:
Well, I think that's what the Veterans Court found with respect to this case.

[00:20:29] Speaker 00:
And in our position is that that was not an error.

[00:20:32] Speaker 00:
And more broadly, this court doesn't have jurisdiction to review that determination because it really is not.

[00:20:37] Speaker 01:
Given that the first two requirements are what they are, which is explicit

[00:20:42] Speaker 01:
and unambiguous, tell me a case in which those two can be met and yet the third might not be.

[00:20:52] Speaker 00:
Well, Your Honor, I think the closest perhaps analogous case that would respond to that question.

[00:20:58] Speaker 01:
I'm sorry, if this is, if that's true in this case.

[00:21:04] Speaker 01:
What's the distinction?

[00:21:05] Speaker 00:
Well, Your Honor, I would draw the court's attention to the Ford decision by the Veterans Court's 2015 case.

[00:21:11] Speaker 00:
It was cited on page 27 of our brief.

[00:21:14] Speaker 00:
And in that case, the veteran had argued that he sought to contest the finding that he had withdrawn his claim.

[00:21:27] Speaker 00:
The veteran had said yes when he had asked if he wished to withdraw his claim.

[00:21:30] Speaker 00:
And the Veterans Court said,

[00:21:32] Speaker 00:
In that case, the veteran on appeal before the Veterans Court had not demonstrated that he didn't understand the consequences.

[00:21:40] Speaker 00:
So there had not been an explicit finding made by the board.

[00:21:43] Speaker 00:
That's really what I think Mr. Ackery's argument is driving at.

[00:21:47] Speaker 00:
How much does the board need to explain in order to meet these standards?

[00:21:51] Speaker 03:
Are you saying the burden is on the veteran to say he didn't understand?

[00:21:56] Speaker 00:
Well, I think in Ford, that seemed to be what the Veterans Court held.

[00:22:00] Speaker 00:
I'm not suggesting that that would be the case in every situation.

[00:22:02] Speaker 03:
Is that consistent with the veteran-friendly canon?

[00:22:05] Speaker 00:
Well, Your Honor, the veteran-friendly canon would not really be implicated, I think, on this question.

[00:22:12] Speaker 00:
I think if the veteran is challenging a board decision on appeal, there is a burden on the veteran to show that there was some sort of clear error.

[00:22:20] Speaker 00:
In the Ford case, and I believe in that case, the veteran

[00:22:25] Speaker 03:
So you're saying the standard should be explicit, unambiguous, and the veteran hasn't brought anything forward to indicate that he didn't understand?

[00:22:35] Speaker 00:
Your Honor, I'm not suggesting that's the case.

[00:22:36] Speaker 00:
I think what the Veterans Court has done with this standard is to apply it in not any sort of rigid formula per se.

[00:22:46] Speaker 00:
What it has done is asking whether the board, on a case-by-case basis, has properly considered the evidence before it.

[00:22:53] Speaker 03:
And you're...

[00:22:55] Speaker 03:
how veterans are supposed to know how to act.

[00:22:57] Speaker 03:
How do board members know what standard their conduct is to be measured by?

[00:23:03] Speaker 00:
Well, the board is, what we have here, I just want to focus on the language and the regulation because the VA in promulgating this regulation did not specify how these withdrawals made during a hearing are supposed to be affected.

[00:23:15] Speaker 00:
And that's important to, especially when you look at the purpose of that.

[00:23:18] Speaker 00:
There were two changes made in 2003.

[00:23:21] Speaker 00:
One was to allow for an on the record

[00:23:23] Speaker 00:
withdrawal during hearing, but the other was to let a veteran's representative do the withdrawing for the veteran.

[00:23:28] Speaker 00:
I think the rule that Mr. Acree is advocating would really complicate that process, in part because if you have a veteran's representative who's speaking on behalf of the veteran, we want that to count for something if the veteran's... But in this case, the veteran's representative didn't really speak on behalf of the veteran.

[00:23:45] Speaker 03:
representative on behalf of the veteran.

[00:23:49] Speaker 03:
You just say, because he was there, we need to assume.

[00:23:51] Speaker 00:
Well, Your Honor, actually, there are several references in the record where the veteran's representative did speak on pages 147 and 148.

[00:23:59] Speaker 00:
What you see is, and I do want to respond to your initial question, I think, earlier about the middle of the conversation, because I would agree that that's the way this transcript reads.

[00:24:08] Speaker 00:
You have the judge beginning the hearing and saying,

[00:24:11] Speaker 00:
I understand that certain claims you wish to withdraw.

[00:24:15] Speaker 00:
Now, there may well have been, as you could very reasonably infer from that transcript, there was a conversation that occurred prior to the hearing beginning.

[00:24:22] Speaker 00:
My understanding is that that is not uncommon in board hearings where you may have an off-the-record conversation.

[00:24:28] Speaker 00:
It's not a violation of a regulation to which I'm aware.

[00:24:31] Speaker 00:
But what's important?

[00:24:32] Speaker 03:
You would think that a careful judge or hearing officer would come on the record and describe in detail the conversation that occurred off the record if they wanted it to be an on-the-record

[00:24:42] Speaker 00:
Well, Your Honor, I think in fairness to the judge here, I think that is what he attempted to do by making sure that the veteran was listing out the claims, asking if he wished to withdraw them.

[00:24:54] Speaker 00:
The answer was yes.

[00:24:56] Speaker 00:
But then what follows from that is also relevant because you have the judge referring to the other claims that were still in contention and a discussion ensued with that.

[00:25:07] Speaker 00:
He asked the representative, have I got it correct?

[00:25:09] Speaker 00:
And of course I'm paraphrasing, have I got it correct?

[00:25:11] Speaker 00:
The representative said, yes, yes, Judge.

[00:25:14] Speaker 00:
And that's in the record as well.

[00:25:15] Speaker 03:
Well, if you agree that there's two steps to this process, what does the regulation require?

[00:25:21] Speaker 03:
And then the second would be the one that we wouldn't have, essentially, jurisdiction over with respect to factual findings.

[00:25:30] Speaker 03:
Certainly, we'd have jurisdiction over saying, if the regulation requires three things and you never mentioned the third, that there is a

[00:25:39] Speaker 03:
a problem in the record with respect to the ultimate conclusion.

[00:25:42] Speaker 03:
But how would you have us write this?

[00:25:45] Speaker 03:
Would you have us write it to say the regulation requires what DeLisio says and then say, but we can't question at all whether or not they comply with that legal standard?

[00:25:58] Speaker 00:
Your honor, I don't think that this court needs to reach that obviously for the jurisdictional reasons that I mentioned, because this really is a factual finding.

[00:26:04] Speaker 00:
And especially if you look at that language in this case,

[00:26:07] Speaker 00:
that the Veterans Court used, it is really the application of law to fact.

[00:26:11] Speaker 00:
I think in terms of writing a decision, I don't think that the court... We're not taking issue with DeLisio, and I don't think there's really any dispute as to the DeLisio formulation.

[00:26:22] Speaker 03:
But I do think we take issue with... But you cite a whole bunch of board cases that seem to ignore the third prong.

[00:26:28] Speaker 00:
Well, not all of them.

[00:26:29] Speaker 00:
And I just... To be clear with respect to Ford, I'm not sure... The answer is yes, you do.

[00:26:34] Speaker 00:
Well, we cite a number of cases where the D'Alessio formulation has been applied and it's been applied in a manner which is rather flexible.

[00:26:41] Speaker 00:
And I think that is really, I think our position is that that application works well.

[00:26:47] Speaker 00:
It leaves it to the discretion of the hearing officer largely to determine on a case by case basis as to what is appropriate.

[00:26:54] Speaker 00:
I think that the rule that Mr. Acre argues would really frustrate that process to some degree.

[00:26:59] Speaker 01:
Can I ask on that question?

[00:27:02] Speaker 01:
I should probably know this by now, can and do board hearings sometimes take place with only the representative there and not the veteran?

[00:27:12] Speaker 00:
Your honor, I don't know.

[00:27:14] Speaker 00:
I know that the veteran would have the opportunity to testify if he or she wanted.

[00:27:19] Speaker 00:
Your question is whether the veteran could be completely absent.

[00:27:21] Speaker 00:
I'm not sure.

[00:27:23] Speaker 01:
Because I keep thinking when I look at the regulation it lays out what's to be done in writing and I think it's agreed here that as to our writing there's no requirement for further inquiry into whether

[00:27:38] Speaker 01:
the veteran understood what was being submitted in writing.

[00:27:43] Speaker 01:
And, you know, so I asked myself, why should it be any different when the thing is done orally?

[00:27:48] Speaker 01:
And one circumstance, I guess, occurs to me to think about is what if the veteran isn't even there and the representative makes the withdrawal, which the 2003 modification of the regulation expressly contemplates?

[00:28:02] Speaker 01:
So is that a fictional scenario or is that a real world scenario?

[00:28:06] Speaker 00:
Well, Your Honor, I can't speak to whether or not that really is the case or if veterans don't appear.

[00:28:10] Speaker 00:
So I don't know the answer to that.

[00:28:11] Speaker 00:
But I do think, first of all, with respect to the Delicio language, that the Veterans Court has applied that to situations involving a written submission as well as an oral one.

[00:28:20] Speaker 00:
I think Mr. Ackery's argument seems to be that we should have a different standard for hearing withdrawal versus a written withdrawal.

[00:28:26] Speaker 00:
Our position is that really complicates things.

[00:28:29] Speaker 01:
And especially when you do have the... So you said the Veterans Court has applied it to written withdrawals as well?

[00:28:36] Speaker 00:
Yes, Your Honor.

[00:28:36] Speaker 00:
And I think this is another indication that the deletio formulation that the Veterans Court set out was not attempting to sort of adopt a really new formulation that would apply just to the oral withdrawals, because it's a 2010 decision, but it cites a number of cases that predate a 2003 change to the regulation.

[00:28:56] Speaker 00:
And at that point, you could only withdraw in writing.

[00:28:58] Speaker 00:
So there were four cases that the Veterans Court cited in Delicio, several of which, I believe three of which, actually predated that change.

[00:29:05] Speaker 00:
So the Veterans Court did not understand that it was adopting a rule that's specific to the hearing situation.

[00:29:12] Speaker 03:
Before you sit down, let me ask you a question.

[00:29:13] Speaker 03:
On page 148 of the appendix, the hearing officer says, or the judge says, part of going on the record

[00:29:22] Speaker 03:
It was indicated that additional documentary evidence was going to be submitted together with a waiver of regional office consideration.

[00:29:31] Speaker 03:
And we will accept that evidence into the record.

[00:29:33] Speaker 03:
What does that mean?

[00:29:35] Speaker 00:
Your Honor, I think this goes to the question you asked earlier about a CD.

[00:29:38] Speaker 00:
And my understanding is, and I don't know what's on the CD, and I haven't personally looked at it, but I think this particular reference on page 148 is to the veterans' desire to provide a disc to the judge.

[00:29:51] Speaker 00:
that contained certain evidence.

[00:29:53] Speaker 00:
And I believe that that evidence was related to his insomnia disability claim.

[00:30:00] Speaker 00:
And so I believe that that reflects his desire to just put this CD on the record.

[00:30:07] Speaker 00:
But I don't think that's pertinent really to the question that we're talking about.

[00:30:16] Speaker 00:
Same amount of time, but thank you.

[00:30:18] Speaker 00:
For these reasons, we respectfully request the court dismiss for lack of jurisdiction or affirm the judgment below.

[00:30:23] Speaker 03:
Thank you.

[00:30:24] Speaker 03:
Thank you.

[00:30:29] Speaker 03:
Ms.

[00:30:29] Speaker 03:
Bennett, I want to ask you before you rebut what he's going to say, and I'll give you an extra minute if needed, or we can just wait to start till I've finished.

[00:30:38] Speaker 03:
But what is it you want us to say?

[00:30:43] Speaker 03:
How would you envision that we would write this opinion?

[00:30:46] Speaker 02:
Your honor, I envision that this court would write the opinion setting forth the standard, which is put forth in DeLizio and in the Warren B. McDonald case, requiring that this is the standard the board must follow.

[00:31:00] Speaker 02:
I don't think the board needs to make detailed findings as to each of the three factors to ultimately reach the place where they find the withdrawal is effective, but there has to be a recognition at the board level that

[00:31:17] Speaker 02:
to reach the conclusion that the withdrawal is effective, that there has been some record adduced that shows what the claimant did or did not understand, in particular that the claimant understood that they were giving up this claim.

[00:31:31] Speaker 03:
So you want us to say that the Licio three-part test is the most reasonable reading of the regulation?

[00:31:37] Speaker 02:
Yes, Your Honor, and make that Federal Circuit precedent.

[00:31:41] Speaker 02:
To Judge Taranto's question to my opponent as to whether the

[00:31:46] Speaker 02:
veteran would be required to attend the hearing.

[00:31:48] Speaker 02:
I don't know as a matter of procedure whether that requirement exists, but it seems that it would because you can't make factual findings, I don't think, based on what a representative or a lawyer is saying.

[00:32:08] Speaker 02:
And in the Warren B. McDonald case, we had a situation where the veteran called the VA on the phone

[00:32:14] Speaker 02:
And there's dispute as to whether he did or did not indicated that he wanted to withdraw his claims.

[00:32:20] Speaker 02:
And the Veterans Court there said that the phone call was not sufficient, that you had to inquire as to the Veterans.

[00:32:29] Speaker 02:
intent live.

[00:32:30] Speaker 01:
So I don't think that that's a hard and fast rule, but it is some indication that to make the factual findings... You made an analogy early in your argument to the way things are done in court and some idea that... Do you think that a lawyer who stands up in court and says, we withdraw counts one and six of our complaint has to have the client there and there has to be a colloquy with the district court?

[00:32:58] Speaker 02:
I think it totally depends on the type of matter.

[00:33:01] Speaker 02:
I was in a family law dispute not very long ago where we entered into a settlement on the record at an evidentiary hearing and the state court judge there directed all of the questions to our clients, not to us.

[00:33:14] Speaker 02:
And he wouldn't enter the settlement until it was clear that the clients themselves understood what they had agreed to and that they'd been properly advised by their counsel.

[00:33:23] Speaker 02:
So that's one situation in my limited experience where

[00:33:28] Speaker 02:
The court, I don't think would have taken just the lawyer's representation that everyone understood what was happening.

[00:33:38] Speaker 02:
To rebut what my opponent said during his argument, I think we heard him concede that DeLisio is the proper standard.

[00:33:46] Speaker 02:
If so, the Veterans Court cannot ignore the third requirement.

[00:33:49] Speaker 02:
We also heard my opponent go on to say that the Veterans Court found that one, criteria numbers one and two are satisfied.

[00:33:56] Speaker 02:
then the third requirement need not be met.

[00:33:58] Speaker 02:
Those two statements are internally inconsistent.

[00:34:02] Speaker 02:
We also heard him say you can infer full understanding of the consequences from the transcript.

[00:34:08] Speaker 02:
Our position is that you can never infer full understanding and knowledge of the consequences unless there is some record that would actually speak to that.

[00:34:18] Speaker 02:
We're out of time.

[00:34:19] Speaker 02:
Great.

[00:34:20] Speaker 02:
We would request that this court reverse and remand the Veterans Court.

[00:34:23] Speaker 02:
Thank you.

[00:34:24] Speaker 03:
Thank you for your pro bono service to the veteran in the court.