[00:00:00] Speaker 03:
Good morning, everyone.

[00:00:02] Speaker 03:
The first argued case this morning is number 17-2181, Cook against Wilkie.

[00:00:10] Speaker 03:
Ms.

[00:00:11] Speaker 03:
Thomas.

[00:00:15] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:00:18] Speaker 01:
The decision of the Veterans Court in this matter should be set aside because 38 U.S.C.

[00:00:23] Speaker 01:
Section 7... Let's speak up a little bit.

[00:00:25] Speaker 01:
I apologize, Your Honor.

[00:00:26] Speaker 01:
The decision of the Veterans Court in this matter should be set aside because 38 USC section 7107B does not require the Board of Veteran Appeals to grant upon request a new hearing, an additional hearing, every time the Veterans Court remands a case.

[00:00:44] Speaker 04:
Well, it's ambiguous, isn't it?

[00:00:47] Speaker 04:
And you've got, even though we have de novo authority over decisions of the Veterans Court, that's a specialized court.

[00:00:57] Speaker 04:
They had a three-judge panel that unanimously found against you.

[00:01:02] Speaker 04:
You've got a pretty uphill battle.

[00:01:05] Speaker 01:
We don't believe the statute is ambiguous, Your Honor.

[00:01:08] Speaker 01:
In fact, there's been no reading of the language of the statute taken as a whole set forth by the Veterans Court or Mr. Cook or the amicus nova that both contends with all of that language as a whole and puts forth a plausible explanation of how that language could yield the result that the court reached here.

[00:01:26] Speaker 01:
The statutory language refers to only two activities of the board.

[00:01:31] Speaker 01:
On the one hand, deciding any appeal, and on the other hand, affording the appellant an opportunity for a hearing.

[00:01:37] Speaker 05:
It's the precise language of the statute.

[00:01:41] Speaker 05:
Want to read it to us?

[00:01:42] Speaker 01:
I can just recite it.

[00:01:43] Speaker 01:
The board shall decide any appeal only after affording the appellant an opportunity for a hearing.

[00:01:49] Speaker 01:
As I was saying, that language describes two activities.

[00:01:55] Speaker 01:
deciding any appeal and affording an opportunity for a hearing.

[00:01:58] Speaker 05:
Before a decision, isn't that the word?

[00:02:01] Speaker 01:
No, not before a decision, Your Honor, before deciding any appeal.

[00:02:04] Speaker 01:
The requirement the statute sets forth is simply that the one activity, affording the appellant an opportunity for a hearing, must precede in time the other activity, deciding any appeal.

[00:02:18] Speaker 01:
So long as the board observes that required chronology, it meets the plain language requirement of the statute.

[00:02:25] Speaker 04:
You're saying even with a remand, it's the same appeal?

[00:02:29] Speaker 01:
I'm sorry, Your Honor.

[00:02:30] Speaker 04:
You're saying even with a remand, it's the same appeal?

[00:02:34] Speaker 01:
Yes, Your Honor.

[00:02:34] Speaker 01:
And that's required both by the statutory and regulatory framework that governs the appeal process and by the precedents of this court interpreting what constitutes an appeal to the board.

[00:02:46] Speaker 05:
But when there's a remand from the CAVC, the board decision is vacated and a new decision is required under the precedent of the CAVC.

[00:02:56] Speaker 01:
It's true that the board is deciding the appeal again.

[00:02:59] Speaker 05:
Oh, a new decision is required.

[00:03:03] Speaker 01:
Yes, it's a new decision, but the statute doesn't require a hearing per decision.

[00:03:08] Speaker 01:
The statute simply requires... Before deciding.

[00:03:12] Speaker 05:
Yes, and... So if you've had a decision and the decision has been

[00:03:16] Speaker 05:
torn up and thrown away, vacated.

[00:03:18] Speaker 01:
Yes.

[00:03:18] Speaker 05:
And you're starting fresh.

[00:03:20] Speaker 01:
No, Your Honor, you're not.

[00:03:21] Speaker 01:
Because while the decision... You could be.

[00:03:24] Speaker 01:
Well, that would be quite anomalous in light of the manner in which courts normally handle, in any court system, handle remand.

[00:03:33] Speaker 05:
If we vacate a decision and remand a case, we call for a new decision.

[00:03:39] Speaker 05:
A new decision.

[00:03:40] Speaker 01:
Yes, Your Honor, but not necessarily a new trial or a new evidentiary hearing.

[00:03:44] Speaker 05:
Well, I know that, but the statute says before deciding.

[00:03:49] Speaker 05:
So let's come back to the point that Judge Lurie made suggesting that there is an ambiguity here in the statute.

[00:03:57] Speaker 05:
Yes, Your Honor.

[00:03:58] Speaker 05:
There's an ambiguity in the statute, and the Secretary hasn't promulgated a regulation.

[00:04:04] Speaker 05:
So you have no regulation to stand on to point to for an interpretation.

[00:04:10] Speaker 05:
You don't have a consistent past practice to point to.

[00:04:14] Speaker 05:
You have an argument in this case, a litigation-driven argument for an interpretation.

[00:04:21] Speaker 05:
And the CAVC rejected your interpretation as a litigation-driven interpretation with no regulation and no history behind it.

[00:04:31] Speaker 01:
As an initial matter, Your Honor, the Veterans Court didn't.

[00:04:34] Speaker 05:
And so in that setting, and you've waived, you're not making any deference argument on appeal.

[00:04:39] Speaker 01:
We're not making a deference argument, Your Honor.

[00:04:41] Speaker 05:
So you're making a fresh statutory interpretation argument on appeal.

[00:04:45] Speaker 01:
We are, Your Honor.

[00:04:46] Speaker 01:
The Veterans Court did not find that the VA's position below was not entitled to deference because it didn't correctly characterize the VA's position.

[00:04:58] Speaker 01:
The Veterans Court incorrectly stated that the VA's position was that the statute bars a hearing on rehab.

[00:05:07] Speaker 05:
Why does that matter for the issue in front of us, which is the correct interpretation of the statute, with the Secretary having no regulation to stand on, no past consistent practice to stand on, but just a fresh argument out of the box?

[00:05:24] Speaker 01:
Because I think it matters.

[00:05:25] Speaker 05:
That doesn't take account of Gardner v. Brown.

[00:05:29] Speaker 01:
Well, because, Your Honor, I think it matters why there is no long-standing, precise practice on this particular question, because the board had no reason to think that this statute provided the role of it.

[00:05:43] Speaker 05:
I mean, we found cases.

[00:05:44] Speaker 05:
There are lots of cases from the past where there have been remands and there have been additional hearings beyond the one hearing that you want to grant.

[00:05:54] Speaker 05:
Your argument is that all that's just fine and dandy, but it should be purely discretionary in the hands of the BVA.

[00:06:02] Speaker 05:
But you give us no constraints on that discretion.

[00:06:06] Speaker 05:
There are constraints.

[00:06:07] Speaker 05:
You haven't suggested any in your brief what the contours of that discretion would be.

[00:06:13] Speaker 05:
And as you well know, the CAVC reminded you, in its opinion, that you can promulgate a regulation.

[00:06:22] Speaker 05:
As a matter of fact, if you look at what's happened since, a new statute has been enacted that speaks of a hearing in the first instance, itself ambiguous.

[00:06:34] Speaker 05:
And the Congress asked you to promulgate a regulation to interpret that statute, and you haven't done so.

[00:06:40] Speaker 01:
Actually, regulations have been promulgated to interpret the new statute, Your Honor.

[00:06:46] Speaker 01:
In August of this year, the Secretary sent forth... August of this year?

[00:06:52] Speaker 01:
Yes.

[00:06:52] Speaker 01:
But the issue here, Your Honor, is returning again to the language of the statute that we don't believe that the board had any reason to think that the statute required a hearing as a matter of right upon the remand of any case from the Veterans Court to the board.

[00:07:08] Speaker 01:
Therefore, there was no reason for the board to issue a policy or a regulation stating that the statute does not require a hearing as a matter of right.

[00:07:19] Speaker 01:
Frankly, the problem here is that the Veterans Court mistook silence in the sense that the statute simply doesn't address this particular issue for ambiguity.

[00:07:31] Speaker 01:
There is no ambiguity in what the statute requires.

[00:07:34] Speaker 01:
In fact, the Veterans Court recognized that the plain language interpretation of the statute is simply that the board must afford at least one opportunity before deciding an appeal.

[00:07:45] Speaker 01:
It said what is not clear from the language of the statute

[00:07:48] Speaker 01:
is the result that the Veterans Court reached.

[00:07:51] Speaker 01:
And that's said twice in the course of the opinion on appendix page 13 and appendix pages 9 to 10.

[00:08:00] Speaker 01:
The problem is that the Veterans Court assumed that this statute should answer the question that the Veterans Court had.

[00:08:08] Speaker 01:
But there's simply nothing in the language or the history of it to indicate that it was intended to govern in these circumstances.

[00:08:16] Speaker 03:
So your position is that whenever the BVA decides on remand, that ends it?

[00:08:22] Speaker 03:
Absolutely not, Your Honor.

[00:08:23] Speaker 01:
Our position is that

[00:08:25] Speaker 01:
The board on remand has to consider the circumstances, the request for a hearing, and any reasons provided for the request for a hearing, and has to use what generally will probably be a good cause standard, which is the standard used by the board to decide a number of motions that are considered to be within the board's discretion, such as whether to grant an additional hearing after an appellant has missed the first one.

[00:08:52] Speaker 01:
and determine whether in those circumstances a new hearing should be granted.

[00:08:57] Speaker 01:
If the appellant appeals that determination to the Veterans Court, the Veterans Court is entitled to review that determination to decide whether the explanation justifies the result reached within an adequate level of deference.

[00:09:12] Speaker 01:
That's similar to the same approach that, for example, appellate courts take to reviewing the decisions of district courts when they decide

[00:09:19] Speaker 01:
For example, discovery disputes, which are necessarily very fact specific, and there aren't usually specific bright line rules determining what results should be reached.

[00:09:29] Speaker 01:
But nevertheless, the courts of appeals have no trouble deciding when the court has abused its discretion or when the result is within the court's discretion.

[00:09:37] Speaker 01:
So we're in no way suggesting that the board would have unfettered discretion to do whatever it wanted.

[00:09:43] Speaker 01:
That's certainly not the case.

[00:09:46] Speaker 01:
In fact,

[00:09:47] Speaker 01:
And we don't believe that this would be necessary, but we do think that the statute could, in narrow circumstances, require an additional hearing if there were, for some reason, a development in an appeal that somehow nullified the prior hearing or rendered it inadequate.

[00:10:02] Speaker 01:
So for example, if something's changed so fundamentally in the applicable legal standards between the beginning of the appeal and some later point such that the appellant couldn't have known what would be relevant, couldn't have known what testimony he needed to present,

[00:10:17] Speaker 01:
then probably there would be a strong argument that the statute itself would require a new hearing.

[00:10:21] Speaker 01:
But we don't think that it would be necessary for the Veterans Court to reach that kind of result when reviewing a decision to deny a hearing, because again, it would have what would be functionally a more stringent standard in being able to review that decision for arbitrary capricious or abuse of discretion.

[00:10:41] Speaker 03:
Let's hear from the other side.

[00:10:43] Speaker 03:
Thank you, Your Honor.

[00:10:46] Speaker 03:
Mr. Carpenter.

[00:10:51] Speaker 02:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Warren Cook.

[00:10:57] Speaker 02:
Mr. Cook, in his brief to the Veterans Court, argued specifically that the denial of a hearing was a denial of due process.

[00:11:05] Speaker 02:
The Veterans Court asked for supplemental briefings specifically to address the question of whether or not the statute in this case did or did not address the issue.

[00:11:15] Speaker 02:
The Veterans Court correctly determined that the statute did address the issue.

[00:11:20] Speaker 04:
But the statute provides for a hearing in an appeal.

[00:11:24] Speaker 02:
It does, Your Honor.

[00:11:25] Speaker 04:
Even on the remand, it's the same appeal, isn't it?

[00:11:27] Speaker 04:
So he's had a hearing.

[00:11:28] Speaker 02:
I don't believe that's correct, Your Honor.

[00:11:30] Speaker 02:
It is the same number for the appeal, but it is a different appeal.

[00:11:35] Speaker 02:
Aren't the facts the same?

[00:11:37] Speaker 02:
I beg your pardon?

[00:11:37] Speaker 02:
Aren't the facts the same?

[00:11:40] Speaker 02:
Well, they may or may not be, because as in this case, additional facts were developed on remand, and it was those additional facts that Mr. Cook sought to have an opportunity to comment on.

[00:11:52] Speaker 04:
So you're saying when there's a remand it's because there's a new issue, and that... Well, not necessarily.

[00:11:58] Speaker 04:
That ought to create an opportunity for a hearing.

[00:12:02] Speaker 02:
I'm not saying that categorically, but I am saying that specifically in this case, and I am saying that the rule that was adopted by the Veterans Court gives the flexibility for the veteran to seek a hearing after he or she has already been afforded a hearing when the case comes back on remand from the court, and that it is vitally important for the veteran to have the opportunity afforded to him or her by Congress to have a hearing.

[00:12:30] Speaker 02:
Congress said

[00:12:31] Speaker 02:
that there would be a hearing before the decision was made on the appeal.

[00:12:38] Speaker 02:
This is a new appeal in the sense that the appeal that was originally brought was denied.

[00:12:45] Speaker 02:
That denial was vacated.

[00:12:48] Speaker 02:
That denial allowed the appellant

[00:12:52] Speaker 02:
another opportunity to have another appeal proceeding before the board.

[00:12:59] Speaker 02:
And in that appeal proceeding, Mr. Cook had developed additional evidence and wanted an opportunity to extrapolate or to expound upon that evidence.

[00:13:09] Speaker 02:
And he would do that in a hearing the same way he would do that on a hearing on the way up.

[00:13:14] Speaker 02:
And there simply is no reasonable basis for the government's position that the statute should be interpreted in another way.

[00:13:22] Speaker 02:
In fact, the government has, at least as I read their brief and have heard their argument, articulated no legal error that was committed by the Veterans Court in arriving at its decision.

[00:13:35] Speaker 02:
And therefore, this case should be summarily affirmed by this panel because no error has been articulated.

[00:13:44] Speaker 02:
As Judge Clevender said, essentially what the government is asking for is for this court to take a fresh look

[00:13:49] Speaker 02:
They want this court to take a new look at the interpretation, but without affording this court with any assertion of clear error in the interpretation arrived at by the Veterans Court.

[00:14:02] Speaker 04:
You don't really mean a summary affirmance.

[00:14:06] Speaker 04:
Rule 36 with no opinion.

[00:14:08] Speaker 04:
You'd like a presidential holding interpreting the statute.

[00:14:14] Speaker 02:
That certainly would be my preference, Your Honor.

[00:14:16] Speaker 02:
However, I believe that without an assertion of error by the government, that there is nothing for this court... Well, the government is asserting error.

[00:14:25] Speaker 05:
They're disagreeing with the interpretation that the CABC put on the relevant statute.

[00:14:31] Speaker 05:
They're saying the statute should be interpreted to say that any veteran gets a hearing and then gets any subsequent hearing based on an exercise of discretion.

[00:14:41] Speaker 05:
That's essentially for good cause.

[00:14:44] Speaker 05:
But the issue... Am I understanding you today, Mr. Carpenter, to be embracing the decision of the CAVC?

[00:14:51] Speaker 05:
Yes.

[00:14:53] Speaker 05:
I wasn't certain that was because your position below is slightly different.

[00:14:58] Speaker 05:
But I just, we don't have to argue about that.

[00:15:00] Speaker 05:
Am I correct that typically and based on precedent from the CAVC itself, when the CAVC vacates a decision of the board,

[00:15:10] Speaker 05:
They're calling for a new decision.

[00:15:13] Speaker 02:
They absolutely are, Your Honor.

[00:15:15] Speaker 05:
And that the only way... And the force and effect of the previous decision that was vacated is gone.

[00:15:21] Speaker 02:
Is gone.

[00:15:22] Speaker 02:
Now, there are circumstances in which part of a decision can be affirmed and part of the decision can be vacated and remanded.

[00:15:31] Speaker 02:
And so it would be limited to that portion that was vacated and remanded.

[00:15:35] Speaker 02:
But as a general proposition, I believe you stated exactly correctly.

[00:15:39] Speaker 02:
And therefore, under the statute, we're going back to, as it were, the beginning of the appeal in order to have the appeal re-adjudicated.

[00:15:50] Speaker 02:
And the re-adjudication of an appeal following a remand from the Veterans Court is no different than... But just for purposes of statutory language, if there has been a pure vacator,

[00:16:01] Speaker 05:
then the appeal hasn't been decided.

[00:16:03] Speaker 02:
That's correct, Your Honor.

[00:16:04] Speaker 05:
There is no final... The appeal was decided.

[00:16:07] Speaker 05:
The decision was taken away.

[00:16:08] Speaker 05:
It has not been decided.

[00:16:11] Speaker 05:
So under your reading of the statute, and as I understood the CAVC reading was, then a remand situation from the CAVC, at least, there has not been a decision on the appeal and therefore you are entitled to a hearing.

[00:16:26] Speaker 02:
That's correct, Your Honor.

[00:16:28] Speaker 05:
And that the government's position... And I'm right, am I not, that if this court were to agree with the CABC that the statute is ambiguous, although this statute has been supplanted, there are still lots of cases pending.

[00:16:41] Speaker 05:
If the secretary wanted to promulgate a regulation asserting its interpretation of the statute, it would be free to do so.

[00:16:48] Speaker 05:
Of course, that could be challenged, but they could do that.

[00:16:50] Speaker 02:
That would be correcter.

[00:16:52] Speaker 02:
And there is no regulation

[00:16:55] Speaker 05:
that is wrong and then the history of this is is to me unfortunate because the statute we're dealing with emanated in a regulation many many years ago and the congress said well you should veterans should be entitled to more than a regulation should have a statute the regulation itself in my judgment was ambiguous the old book and so congress gave us an ambiguous statute in place of that and then didn't bother to interpret agency

[00:17:25] Speaker 05:
That's the, to me, the unfortunate situation we're in is that there hasn't been an interpretation previously that was promulgated in a way that we expect interpretation to be promulgated through notice and comment rulemaking.

[00:17:38] Speaker 02:
And as a consequence, the problem that the government is facing now because of this decision is a problem of their own making or their failure to act.

[00:17:47] Speaker 05:
It's a problem of accident, perhaps.

[00:17:49] Speaker 02:
Well, it seems to me, Your Honor, that the government has taken the position consistently

[00:17:54] Speaker 02:
that they can do things by caveat, by their determining that this is the way in which things will be done, including not having an opportunity for a second hearing, rather than taking their responsibility as administrators to promulgate a regulation.

[00:18:15] Speaker 05:
In fairness to the agency, I mean, as we all know from the briefing, there are thousands and thousands and thousands of cases in the backlog.

[00:18:22] Speaker 05:
And part of the difficulty here is to try to find an expeditious way to have veterans' claims properly heard and adjudicated.

[00:18:30] Speaker 02:
And I believe that that very point, Your Honor, goes to the essence of the statutory interpretation in this case.

[00:18:37] Speaker 02:
Does a veteran have a right when the case is returned from the Veterans Court to have a second hearing?

[00:18:44] Speaker 02:
And the veteran certainly has a right under this statute to have that second hearing.

[00:18:49] Speaker 02:
And more importantly, he or she has that right as a matter of due process.

[00:18:54] Speaker 02:
It is simply not due process to deny, as the board did in this case, a unilateral rejection, an arbitrary rejection.

[00:19:04] Speaker 05:
How important is Governor Brown to your argument?

[00:19:07] Speaker 05:
Governor Brown is the Supreme Court's view that in matters of statutory interpretation,

[00:19:14] Speaker 05:
Uh, if you will, if there's a benefit of a doubt in interpreting the statute, the doubt should be tipped toward in favor of the veteran.

[00:19:23] Speaker 02:
And I believe under that canon of construction that the statute was... Do you think you need Gardner and Brown in your case here to prevail?

[00:19:33] Speaker 02:
Not based upon what the lower court did.

[00:19:35] Speaker 02:
But I do believe if this were a fresh look and this court was taking a fresh look, that this court should apply the rule in Gardner and, or Brown v. Gardner.

[00:19:44] Speaker 05:
Well, did the lower court mention, or, yes, perhaps?

[00:19:48] Speaker 02:
They did.

[00:19:49] Speaker 02:
But the government did not.

[00:19:50] Speaker 05:
They never was gratuitous?

[00:19:52] Speaker 02:
No.

[00:19:53] Speaker 02:
No, I do not believe so, Your Honor.

[00:19:55] Speaker 02:
But in my view, the correct way is to start with Gardner and not start with Chevron.

[00:20:02] Speaker 02:
that the correct way is to look at this under the canon of construction for veteran statutes and regulations, and that every veteran statute and regulation should be interpreted by this court and by the court below in the light most favorable to the veteran.

[00:20:17] Speaker 02:
And in that context, the light most favorable to the veteran is to be afforded a hearing upon remand.

[00:20:25] Speaker 02:
Unless there's further questions, I'll see my remaining 30 seconds.

[00:20:29] Speaker 03:
Thank you, Mr. Carpenter.

[00:20:30] Speaker 03:
We'll hear from Mr. Niles.

[00:20:39] Speaker 00:
May it please the court.

[00:20:44] Speaker 00:
I'll address two of the reasons why the Veterans Court's decision must be affirmed.

[00:20:49] Speaker 00:
The first is the plain text of Section 7107B, and the second, which isn't the alternative, is the Supreme Court's decision in Brown v. Gardner.

[00:20:57] Speaker 00:
And I will begin with the 7107B's plain text, which, to repeat, is that the Board shall decide any appeal only after affording the appellant an opportunity for a hearing.

[00:21:09] Speaker 00:
Much of the focus of this matter is on the phrase decide any appeal.

[00:21:13] Speaker 00:
7107b does not define those terms, and there is no dispute that when Congress does not statutorily define a term, that it intends for the terms common and ordinary meaning to control.

[00:21:25] Speaker 00:
And so I'm going to step through very quickly the common and ordinary meanings of decide any an appeal and how they fit into 7107b.

[00:21:34] Speaker 00:
The common and ordinary meaning of decide

[00:21:36] Speaker 00:
is to determine after consideration of the facts in the law.

[00:21:40] Speaker 00:
The secretary now concedes this.

[00:21:42] Speaker 00:
The common and ordinary meaning of appeal is the submission of a lower court's or agency's decision to a higher court for review and possible reversal.

[00:21:51] Speaker 00:
And the secretary now concedes this as well.

[00:21:54] Speaker 04:
You think on remand it becomes, in effect, a new appeal?

[00:21:58] Speaker 00:
Yes, Your Honor.

[00:21:59] Speaker 00:
And there's a distinction in Veterans Law between substantive appeal and appeal.

[00:22:03] Speaker 00:
And certainly on remand, it is a new submission

[00:22:06] Speaker 00:
to the board of a lower courts or agencies, that being the regional offices, decision for review and possible reversal.

[00:22:14] Speaker 00:
And there's a case of Fletcher versus Derwinsky, one vet app 394, which is from a veterans court case, but it does provide persuasive authority affirming that.

[00:22:25] Speaker 00:
And for the reasons that Nova has briefed, the common and ordinary meaning of any is simply every.

[00:22:29] Speaker 00:
And the secretary does not really dispute that either, but attempts to evade its consequences through what is a straw man argument.

[00:22:36] Speaker 00:
The secretary cherry picks one of what is several dictionary definitions of every and says that that, which is definition 1B, creates logical tension in section 7107B.

[00:22:47] Speaker 00:
But what the secretary does not mention is that in the same dictionary, definition 1A of every is each individual or part of a class or group, whether definite or indefinite number, without exception.

[00:23:00] Speaker 00:
And that makes perfect sense in 7107B, which again provides that the board shall decide

[00:23:05] Speaker 00:
or that is determined after consideration of the facts in the law, any, or that is every, or each individual without exception, appeal, or that is submission of a regional office's decision to it for a view and possible reversal only after affording the appellant an opportunity for a hearing.

[00:23:21] Speaker 04:
And so 71... Well, the board said for the purpose of submitting additional evidence.

[00:23:27] Speaker 00:
Yes, Your Honor.

[00:23:27] Speaker 04:
So is the statute limited to submitting additional evidence, or is that what all remands are about anyway?

[00:23:35] Speaker 00:
Certainly, when not all remands are for the purpose of submitting additional evidence, but certainly in those circumstances, they would suffice to trigger the opportunity for a new board hearing, whether or not it's necessary, it would suffice.

[00:23:50] Speaker 00:
And so what 7107B does is unambiguously require an opportunity for a board hearing on every or each individual without exception.

[00:23:59] Speaker 00:
Submission of a regional office's decision to the board

[00:24:02] Speaker 00:
for review and possible reversal, whether that submission is on initial consideration of the substantive appeal, or after a remand back down to the regional office and return to the board, or as here.

[00:24:13] Speaker 05:
What happens if CAVC remands a case to the BVA to recalculate, make a recalculation of an arithmetic equation to provide the correct number for the benefits?

[00:24:29] Speaker 05:
And they remand it.

[00:24:31] Speaker 05:
I can imagine that happening.

[00:24:33] Speaker 05:
There's an error in the calculation.

[00:24:34] Speaker 05:
The veteran said, I'm supposed to get XML a month.

[00:24:37] Speaker 05:
And the VVA said, no, you get X minus.

[00:24:40] Speaker 05:
And so they bring the appeal up to CAVC.

[00:24:43] Speaker 05:
And the CAVC says, the veteran, you're right.

[00:24:46] Speaker 05:
We remand the case.

[00:24:49] Speaker 05:
In that case, is the remand call for a vacator?

[00:24:54] Speaker 05:
Yes or no?

[00:24:59] Speaker 00:
Your Honor, I would say yes, in terms of it's a new submission to the board of interview of the regional office.

[00:25:07] Speaker 00:
It would be a new appeal for purposes of 7107B, but this court would not need to reach... It's just a matter of the CAVC says we added the numbers up wrong.

[00:25:16] Speaker 00:
And if Your Honor disagrees with me, I will note that this court does not need to reach the circumstances here.

[00:25:21] Speaker 05:
The circumstances are not... I'm trying to pressure you a little bit on whether or not every remand should get another hearing.

[00:25:27] Speaker 05:
And the veteran says, I want to have a hearing because I like to go to hearings.

[00:25:30] Speaker 05:
I feel good about going to hearings, get to wear my medals and whatnot.

[00:25:34] Speaker 00:
And Nova's position is that this court does not need to map the outer contours of 7107B because certainly here we're well within it where there in fact has been an intervening remand back down to the regional office and return to the board.

[00:25:49] Speaker 05:
Let me ask you another question.

[00:25:51] Speaker 05:
This, you are here to embrace the decision of the CBC as is Mr. Carpenter.

[00:25:57] Speaker 05:
So you're asking us for a street affirmance.

[00:26:00] Speaker 00:
And Your Honor, I do see that my time has expired.

[00:26:02] Speaker 00:
I assume you look for me to answer your question.

[00:26:04] Speaker 05:
I think, am I correct?

[00:26:05] Speaker 05:
Am I not?

[00:26:06] Speaker 05:
I mean, you urge affirmance.

[00:26:07] Speaker 00:
Your Honor, we do urge affirmance.

[00:26:09] Speaker 00:
However, they are on slightly different grounds than the Veterans Court's decision sets forth.

[00:26:14] Speaker 00:
NOVA has the position that 7107B is unambiguous and that it's plain text.

[00:26:19] Speaker 00:
requires that Mr. Koch receive an opportunity for a new board hearing on remand and this court does not need to consider any other issue.

[00:26:27] Speaker 05:
So if we disagree with you and we believe the statute is ambiguous then we would be in a position with Mr. Carpenter then let me ask you this if the CAVC had instead of interpreting the statute the way they did which was to say every remand gets another hearing gets a hearing if you ask for it

[00:26:49] Speaker 05:
If they had adopted the government's position that the government's espousing here now, or would that have been an unreasonable interpretation of the statute?

[00:26:59] Speaker 05:
Yes, Your Honor.

[00:27:00] Speaker 05:
Assuming that the statute was ambiguous.

[00:27:03] Speaker 00:
Yes, Your Honor.

[00:27:04] Speaker 00:
And that involves the second reason I was going to address for affirmance, which is the Supreme Court's decision in Brown versus Gardner, which requires that any interpretive doubt

[00:27:13] Speaker 05:
resolved in favor of Mr. But I mean, the CBC would have said we are intervening.

[00:27:18] Speaker 05:
We're giving credit to the veteran because the veteran can get another hearing whenever there's good cause shown.

[00:27:23] Speaker 05:
They can get as many as they want.

[00:27:25] Speaker 05:
There's no limit on the government's theory.

[00:27:28] Speaker 05:
There's no limit to the number of hearings that can be afforded a veteran.

[00:27:31] Speaker 05:
One as a right, as many after that as are necessary to properly adjudicate the claim.

[00:27:39] Speaker 00:
I see your honor, but the problem with the government's position is that although characterized as a plain text argument, it really focuses on what the secretary would like for 7107B to do and is not linked to what 7107B actually says.

[00:27:51] Speaker 00:
And getting from A to B is a real problem for the secretary because it requires essentially amending the statute from saying decide any appeal, the board shall decide any appeal only after affording the appellant an opportunity for a hearing to

[00:28:06] Speaker 00:
initially decide or finally decide a substantive appeal.

[00:28:09] Speaker 00:
And those are terms that appear in the same chapter, in the same title of the U.S.

[00:28:14] Speaker 00:
Code of 7107B.

[00:28:18] Speaker 03:
Anything else you want to add?

[00:28:20] Speaker 05:
No, thank you very much.

[00:28:21] Speaker 03:
Thank you.

[00:28:22] Speaker 03:
Thank you, Mr. Niles.

[00:28:27] Speaker 03:
Ms.

[00:28:27] Speaker 03:
Thomas, you have your photo rebuttal time.

[00:28:30] Speaker 01:
Thank you.

[00:28:32] Speaker 01:
There is absolutely no authority

[00:28:34] Speaker 01:
whether statutory, regulatory, or jurisprudential, is supporting the notion that a new appeal is initiated every time that the Veterans Court remands a case to the Board of Veterans Appeals.

[00:28:45] Speaker 01:
In fact, it is very clear from the cases of this court, including Barrera, and Grantham, that what starts a new appeal is the submission of a jurisdiction-conferring notice of disagreement.

[00:28:57] Speaker 01:
There is no such notice of disagreement submitted just upon a remand from the Veterans Court.

[00:29:01] Speaker 01:
Therefore, there's no basis for finding that a new appeal has been submitted.

[00:29:05] Speaker 01:
If the word appeal were to be redefined in such a fashion, is a very commonly used word throughout Veterans statutes and regulations, it would have wide-ranging and very negative repercussions for the way the system works, including how appeals are docketed and therefore the order in which they're heard.

[00:29:23] Speaker 01:
Second.

[00:29:26] Speaker 01:
It doesn't matter whether the board is called upon after a remand to decide the case anew.

[00:29:32] Speaker 01:
The statute only requires that a hearing or opportunity for hearing have been provided before that point, which it has been at the outset of the appeal and the same appeal.

[00:29:44] Speaker 01:
The vacator of the decision doesn't vacate the prior hearing.

[00:29:50] Speaker 01:
Lastly,

[00:29:51] Speaker 01:
The court has suggested that the secretary could simply promulgate a new regulation if the court were to affirm the decision of the CABC.

[00:30:01] Speaker 01:
And while it's true that the Veterans Court suggested that its decision could be overcome by a regulation, the court also said that it was divining the will or the intent of Congress.

[00:30:14] Speaker 01:
And we're not sure how we could promulgate a valid regulation if the intent of Congress, as interpreted by the court,

[00:30:21] Speaker 01:
was that there must be an additional opportunity for a hearing on request after every remand.

[00:30:27] Speaker 01:
For all of these reasons, Your Honors, we respectfully request that the decision below be set aside in this matter remanded for this decision on the remainder of the appeal.

[00:30:37] Speaker 01:
Thank you.

[00:30:38] Speaker 03:
Any questions for Ms.

[00:30:40] Speaker 01:
Thomas?

[00:30:40] Speaker 03:
Thank you.

[00:30:41] Speaker 03:
Thank you.

[00:30:41] Speaker 03:
Thank you all.

[00:30:43] Speaker 03:
The case is taken under submission.