[00:00:04] Speaker 03:
Okay, the next argued case is number 17, 2564, Federico against Wilkie.

[00:00:11] Speaker 03:
Mr. Mammon.

[00:00:19] Speaker 00:
Good afternoon, Your Honors, and may it please the Court.

[00:00:22] Speaker 00:
I am Nathan Mammon on behalf of the Air Force veteran, Robert Federico.

[00:00:26] Speaker 00:
The material facts of this case are not in dispute.

[00:00:30] Speaker 00:
Mr. Federico served at one of the seven Royal Thai Air Force bases where Agent Orange or a dioxin-based herbicide was used.

[00:00:37] Speaker 00:
He was a munitions specialist.

[00:00:39] Speaker 00:
His barracks were 30, 35 yards from the perimeter, and he worked at a bomb dump that was near the perimeter.

[00:00:44] Speaker 00:
And most significantly, he traveled daily along the perimeter road of that Air Force base to go to and from his place of work.

[00:00:53] Speaker 00:
This appeal concerns a legal standard that is the basis for the Veterans Court's denying

[00:00:58] Speaker 00:
Mr. Federico benefits in view of these undisputed material facts.

[00:01:03] Speaker 03:
First, the Veterans Court... A legal standard, you say, or isn't it the fact of exposure that was debated?

[00:01:11] Speaker 00:
It was a... The board's decision and the Veterans Court's decision was based on whether they viewed him as falling within the presumption of exposure that would apply under the M21.1 manual provision.

[00:01:23] Speaker 00:
And so they looked at the facts

[00:01:24] Speaker 00:
undisputed facts here and answered the question, will we apply the presumption under M21.1 provision, specifically the provision that says if the veterans serve near the perimeter of the Air Force base.

[00:01:36] Speaker 00:
And the basis for the board's decision here, which the Veterans Court affirmed, was that we can't apply this presumption

[00:01:42] Speaker 00:
that because he traveled, focusing on the traveling along the road, we can't apply this presumption that he was exposed because he traveled on the road, because that would mean anyone who ever went in or out of the base would otherwise fit within that presumption.

[00:01:57] Speaker 00:
First, that is not what the M211 manual provision actually requires.

[00:02:02] Speaker 04:
It doesn't require any amount of temporal... There's no question that that was an unfortunate statement on their part, because it's just wrong.

[00:02:13] Speaker 04:
Then what?

[00:02:15] Speaker 00:
Well, Your Honor, I don't think it's just, I mean, it is unfortunate, it is wrong, and it was legally significant.

[00:02:19] Speaker 00:
That was the basis for the court's decision of denying benefits here.

[00:02:24] Speaker 00:
They said, because they didn't dispute the fact that he had traveled along that perimeter route, they said, well, because we're not going to say that that is enough, or not even that they're not saying that's enough, because we're not going to interpret it that just being in or out of the perimeter is enough, we're not going to concede herbicide exposure in this case.

[00:02:42] Speaker 00:
Now that was legally wrong, and it was the outcome determinative in this case.

[00:02:48] Speaker 00:
Had the court conceded that he was exposed to herbicide, he has one of the illnesses that is also presumed to be associated with dioxin or Agent Orange, and Mr. Federico would have been entitled to benefits.

[00:03:05] Speaker 00:
So the board and the Court of Appeals for Veteran Claims got wrong the interpretation of the manual.

[00:03:09] Speaker 00:
That's very clear, we submit.

[00:03:11] Speaker 00:
They also got wrong the fact that the outcome here is inconsistent with how the board has evaluated similar cases on indistinguishable facts, where veterans have also traveled the perimeter road.

[00:03:24] Speaker 02:
Is it your view that interpretation of the Veterans Manual is a question of law, of which we have jurisdiction?

[00:03:29] Speaker 00:
Yes, Your Honor.

[00:03:31] Speaker 00:
And I would submit that if you look at this court's decision just this Monday in the Hudick case, Judge Newman, I know you were on the panel for that case,

[00:03:41] Speaker 00:
It addressed the question of, well, under GRAE and DAV, the board's not required to apply the manual, and that's true.

[00:03:47] Speaker 00:
But if the board does apply the manual... But the manual has no force and effect of law, right?

[00:03:53] Speaker 00:
I don't know if that's correct, Your Honor.

[00:03:55] Speaker 02:
The board's... Do you know what I mean by force and effect of law?

[00:03:57] Speaker 02:
If it's not bound to apply it, it doesn't have the force and effect of law.

[00:04:00] Speaker 00:
Well, it certainly has a force and effect of law with the VA.

[00:04:02] Speaker 00:
And there is a question of, which I think is being currently debated, what's the force and effect of law at the board.

[00:04:06] Speaker 02:
Well, our jurisdictional statute, unless I'm mistaken, gives us

[00:04:10] Speaker 02:
authority to interpret statutes and regulations.

[00:04:15] Speaker 02:
Is the VA manual either of those two things?

[00:04:18] Speaker 00:
It is a regulation, Your Honor, and certainly it was... It's a regulation?

[00:04:21] Speaker 02:
I don't know that I appreciated that.

[00:04:23] Speaker 02:
The manual is in fact a regulation?

[00:04:24] Speaker 00:
Well, Your Honor, it's not a regulation in your decision and you wrote for the court in DAV.

[00:04:29] Speaker 00:
It's not a regulation promulgated under Notice of Common Rulemaking in accordance with that provision.

[00:04:34] Speaker 00:
But certainly the Board applied it here.

[00:04:36] Speaker 00:
And if the Board is going to apply...

[00:04:39] Speaker 02:
So we say it's not a regulation, but it is a regulation.

[00:04:41] Speaker 02:
Our jurisdiction is really limited, and it's limited to interpreting statutes and interpreting regs unless there's a constitutional challenge.

[00:04:50] Speaker 02:
And so if you're going to say yes, but they misinterpreted it to be a manual, I don't know that that fits neatly.

[00:04:58] Speaker 02:
I welcome your arguments on how that fits neatly into our very narrow jurisdiction.

[00:05:02] Speaker 02:
I lament the narrowness of our jurisdiction in these cases quite frequently, but it is what it is.

[00:05:09] Speaker 02:
the VA manual of regulation within the scope of our jurisdiction?

[00:05:14] Speaker 00:
I'll offer two responses to that.

[00:05:16] Speaker 00:
First, the court can't interpret statutes and regulations, but it also has a duty or a jurisdiction of 7292 to evaluate decisions that are arbitrary and capricious.

[00:05:26] Speaker 00:
I'll note that.

[00:05:27] Speaker 00:
But to your Honor's question about whether this is within the court's jurisdiction,

[00:05:34] Speaker 00:
Again, I'll point to its unpublished case from this Monday, but point to the Hudick decision, where that's what this court exactly did.

[00:05:40] Speaker 00:
The court said that while the VA, or rather the Veterans Court, is not obligated to apply the manual, should they choose to, as they did in this case, they must apply it correctly.

[00:05:49] Speaker 00:
And I submit that's no different than any abuse of discretion standard case that comes up before this court.

[00:05:54] Speaker 00:
A district court may not have to do something, but if the district court is going to take an action, they have to take an action in accordance with the law.

[00:06:00] Speaker 00:
They have to make a legally right choice.

[00:06:02] Speaker 02:
And the board's decision to apply... Might that be called application of law to facts?

[00:06:07] Speaker 02:
The way you just described it?

[00:06:07] Speaker 00:
Well, Your Honor, in this Court's decisions in Connolly v. Peek and Crudifer v. Shulkin, it was clear that where the material facts are not in dispute, and the adoption of a particular legal standard would dictate the outcome of this decision, this Court will treat the application of law to undisputed facts as a question of law.

[00:06:25] Speaker 02:
I'm just confused, because for me, I just didn't see this case as very complicated.

[00:06:29] Speaker 02:
It seemed to me that Mr. Frederico,

[00:06:31] Speaker 02:
was challenging the board fact-finding whether or not his travel along the perimeter road established exposure or didn't establish exposure.

[00:06:39] Speaker 02:
And that, I don't see how that can be contorted into anything other than a fact-finding.

[00:06:46] Speaker 00:
You know, I suspect he's not challenging the board's fact-finding.

[00:06:49] Speaker 00:
The board's fact-finding were clear that they accepted the fact that he had traveled along the perimeter.

[00:06:53] Speaker 02:
The question is... Whether or not traveling along the perimeter established exposure to the herbicides.

[00:06:59] Speaker 02:
That's my understanding of the fact-finding.

[00:07:01] Speaker 00:
The fact-finding, where a term for fact-finding to a legal conclusion was whether, based on those facts, was he entitled to the presumption under M21.1 that he had been exposed.

[00:07:13] Speaker 04:
But that's applying law to facts, isn't it?

[00:07:16] Speaker 00:
Well, the question of whether he was entitled to the presumption of 21.1 is a question of what does that presumption mean.

[00:07:21] Speaker 00:
And again, I'm referring back to the court's decision in the colony versus Peek.

[00:07:25] Speaker 00:
This is a pure question of what that presumption means as a legal matter.

[00:07:28] Speaker 00:
And you don't have to look at the facts of Mr. Federico's case.

[00:07:32] Speaker 00:
Once you determine what that presumption means, the Board and the Court of Veterans Claims are obligated to provide.

[00:07:39] Speaker 04:
Well, you have two regulations that are relevant.

[00:07:42] Speaker 04:
1154, Pertham, and 38.

[00:07:46] Speaker 04:
Well, that's the statute.

[00:07:48] Speaker 04:
38 CFR 3.303.

[00:07:51] Speaker 04:
Are you raising that regulation?

[00:07:53] Speaker 00:
Yes, well, and so that's a step further once you get past the presumption.

[00:07:58] Speaker 00:
And our point there is, even if the board were not to apply this presumption, they're not obligated to, they did so here, but even if you were to say, well, because they weren't obligated to,

[00:08:07] Speaker 00:
That's not a question we're going to review.

[00:08:09] Speaker 00:
The question still is, they are obligated to render a decision in accordance with 1154 and 3.303.

[00:08:17] Speaker 00:
Once you stop at determining whether the presumption applies, that's only half the duty of the board.

[00:08:22] Speaker 00:
The board doesn't have to apply the presumption.

[00:08:25] Speaker 00:
They may choose that.

[00:08:26] Speaker 00:
They don't have to apply the regulation.

[00:08:27] Speaker 00:
But then they still have to evaluate these facts and determine whether this veteran was exposed.

[00:08:32] Speaker 00:
What the board did here was stop at whether they were going to apply the presumption in the first instance.

[00:08:37] Speaker 00:
They said, well, because we don't think that interpreting this presumption to be broad, we're not going to apply it and concede herbicide exposure.

[00:08:45] Speaker 00:
They didn't then go on and do the necessary step of saying, but we're going to look at the evidence that Mr. Federico presented and determine whether that evidence is sufficient to establish that this veteran was exposed.

[00:08:57] Speaker 00:
They didn't give that individual determination.

[00:08:59] Speaker 00:
And we think you can stop with the presumption that that should apply as a matter of law.

[00:09:02] Speaker 00:
That kicks in.

[00:09:03] Speaker 00:
But if it doesn't, there still is more work that the court had to do and did not do.

[00:09:09] Speaker 03:
I was going to say the difficulties, the advantage.

[00:09:14] Speaker 03:
In the course of the evolution of the herbicide exposure, there were, as far as I can tell, many scientific studies commissioned through the National Academy, many of them and others,

[00:09:28] Speaker 03:
that the agency that the government commissioned and perhaps others and that it was because of the scientific studies initially that as a matter of fact that Agent Orange had certain serious consequences, the manual was then provided that included presumptions that if exposure were established,

[00:09:56] Speaker 03:
then you didn't have to prove a causal connection between the exposure and the consequence.

[00:10:03] Speaker 03:
And so here we are, many of the arguments are now, does the presumption apply?

[00:10:10] Speaker 03:
And what I don't see on any side, and I'll ask the government particularly, that we need to know, don't we?

[00:10:20] Speaker 03:
We are the decision makers, what the premises were of the presumption.

[00:10:27] Speaker 03:
if it was that in fact a veteran whose barracks happens to be 100 feet from the perimeter, as in this case, that it's assumed that the herbicide is in the air and that it doesn't dissipate and that the oxygen or whatever or the sunlight doesn't destroy it.

[00:10:46] Speaker 03:
Actually, I think perhaps it does at a certain amount of time.

[00:10:50] Speaker 03:
And all of the scientific facts that

[00:10:54] Speaker 03:
came into these one-sentence presumptions.

[00:10:57] Speaker 03:
But how, in fact, can we decide the correctness of the application of the presumption in an arguable case?

[00:11:06] Speaker 03:
Again, my question is really for the government, without going behind it more deeply.

[00:11:13] Speaker 03:
But I appreciate that if, in fact, the veteran is entitled to the presumption, that ought to end it.

[00:11:19] Speaker 03:
And there shouldn't be this great debate of all the passage of time

[00:11:23] Speaker 03:
wait to see how long the veteran survives.

[00:11:26] Speaker 03:
So I don't know the answer to that, but I think there are a lot of unanswered questions that need to be probed.

[00:11:33] Speaker 03:
But does any of that help your case?

[00:11:35] Speaker 00:
You know, I think it does.

[00:11:36] Speaker 00:
I would think that certainly they're having debates and studies and trying to figure out the extent of

[00:11:45] Speaker 00:
harm that's associated with dioxin and Agent Orange, and that's why to give the veterans the benefit of the doubt that we want to help our veterans, that's why we have these presumptions because of the uncertainty

[00:11:56] Speaker 00:
And I think you could compare this case in the provision of M211 manual, which basically says, if you served otherwise near these Air Force bases, you're entitled to a presumption that you were exposed.

[00:12:09] Speaker 00:
Compare that with what we apply to veterans who set foot in Vietnam.

[00:12:13] Speaker 00:
That's a much stronger presumption, that's a much wider presumption that applies, that if a veteran is shown to have set foot in Vietnam during the applicable time, they're presumed to have been exposed.

[00:12:23] Speaker 00:
This manual provision has that same intent behind it, the same goal.

[00:12:31] Speaker 00:
We don't know how much exposure is required, what the effect of it is.

[00:12:36] Speaker 00:
It's about the location and whether you were at a location where this herbicide was used.

[00:12:43] Speaker 00:
And the manual has very clear steps to determine that.

[00:12:47] Speaker 00:
Under what the evidence was below, those steps were met here.

[00:12:51] Speaker 00:
And per your honor, the court's decision, the manual should have been applied in the presumption granted in this case as well.

[00:13:00] Speaker 03:
OK.

[00:13:00] Speaker 03:
Let's hear from the government.

[00:13:01] Speaker 00:
Thank you, your honor.

[00:13:07] Speaker 04:
Why isn't he right?

[00:13:10] Speaker 01:
Yes, your honor.

[00:13:11] Speaker 01:
Good afternoon, your honor.

[00:13:13] Speaker 01:
May it please the court.

[00:13:14] Speaker 01:
As an initial matter, there's been reference to presumption, and in this case,

[00:13:21] Speaker 01:
The manual provision that we're dealing with does not establish a presumption of herbicide exposure like we deal with in with regulations and statutes such as the Veterans in the Republic of Vietnam and the exposure to Agent Orange.

[00:13:38] Speaker 01:
The provision in this case provides for special consideration based on a fact basis, which means

[00:13:47] Speaker 01:
The manual in this case is serving as an evidentiary tool to assess whether or not the adjudicator looking at the evidence believes that it establishes the veteran was explored.

[00:13:59] Speaker 03:
The purpose of the manual is to avoid going through all this stuff.

[00:14:03] Speaker 03:
If you were there, that ends it.

[00:14:05] Speaker 01:
The manual provides, as this court recognized in DAV and Gray, the manual provides

[00:14:12] Speaker 01:
a means for the adjudicators to quickly process the claims.

[00:14:16] Speaker 01:
It's a collection of policies and procedures.

[00:14:18] Speaker 01:
And in this case, this particular presumption states that it's special consideration on a fact basis.

[00:14:25] Speaker 01:
So it's not an automatic presumption that if you're there on the tie base that you get the presumption or the service connection.

[00:14:35] Speaker 01:
The adjudicator assesses the facts, and if exposure

[00:14:39] Speaker 01:
is established that they served at or near the perimeter, then you move on to the causal connection.

[00:14:45] Speaker 01:
It's not the same regulatory presumptions that we deal with in veterans who actually step foot within the terrain of Vietnam.

[00:14:54] Speaker 01:
And so in this case, the board and the adjudicator looking at the provisions of the Emanuel found contrary to

[00:15:04] Speaker 01:
uh... mister federico's argument found that the facts established that he was not exposed herbicides in this case and looking at the board's opinion that was not on only based on one statement that uh... the manuals intent could have been a bus riding around the perimeter rather the board and subsequently the veterans court's opinion go through the evidence that was established in that case including uh... dvd

[00:15:32] Speaker 01:
findings stating that herbicides were not sprayed within the interior of the base or on the roads, including a road that Mr. Federico would be traveling on in the bus.

[00:15:44] Speaker 01:
And so in this case, it truly is an assessment of the evidence for which this court does not have jurisdiction.

[00:15:52] Speaker 04:
If we hold for him and reverse or vacate and remand or something,

[00:16:00] Speaker 04:
We don't run into the manual problem, do we?

[00:16:05] Speaker 04:
But if we affirm, we're going to run into the question of what's with the manual, which is upstairs somewhere, isn't it?

[00:16:15] Speaker 01:
It is, Your Honor.

[00:16:17] Speaker 01:
CERT has been granted in gray.

[00:16:20] Speaker 01:
We believe that's a distinct question, whether or not this court possesses jurisdiction under 502 to a facial challenge to the manual.

[00:16:29] Speaker 01:
In this case, the holdings of both the Veterans Court and the board were limited to the facts of this case.

[00:16:36] Speaker 01:
And the holding was limited to the facts of this case.

[00:16:39] Speaker 01:
So this court need not address whether or not the manual is in fact binding, for which this court has already found that it is not.

[00:16:47] Speaker 01:
And the case, while it has been granted, obviously no opinion has been issued.

[00:16:54] Speaker 01:
But the court could remand without addressing whether or not the manual is binding because the lower court opinion and board opinion limited to whether or not the facts were clearly erroneous or were not supported by reasons and bases.

[00:17:09] Speaker 01:
So this court need not reach the larger question.

[00:17:13] Speaker 03:
So why isn't there a presumption of exposure if you're in an open air barracks 100 feet from the perimeter?

[00:17:23] Speaker 03:
But it seems to me that what the manual was trying to do is to say that if there was reasonable exposure, you then don't have to prove causation to whatever illness you suffer 30 years later.

[00:17:38] Speaker 01:
Once exposure is established, generally the board has found that there is the causal connection.

[00:17:48] Speaker 01:
At this time, no regulatory presumption that nexus need not be established.

[00:17:53] Speaker 01:
However, it appears the board has found the causal connection once exposure is established.

[00:18:01] Speaker 01:
In this case, the adjudicator

[00:18:03] Speaker 01:
the board and subsequently the Veterans Court found that the facts presented in this case simply did not establish that he was at or near the perimeter or was exposed.

[00:18:14] Speaker 01:
The unique fact we have in this case is that the veteran himself submitted photographs of where the munitions dump was located and a map was discussed during the

[00:18:25] Speaker 01:
hearing at the board and assessing this evidence, this factual evidence, they found that he was not at or near the perimeter and specifically made note of the fact that where he was saying the bomb dump was located was far enough outside the perimeter that it was not near the perimeter and that

[00:18:49] Speaker 01:
The DOD report specifically stated that herbicides were not sprayed within the interior of the base.

[00:18:56] Speaker 01:
So in assessing the evidence, they found that it just simply was not established in this case.

[00:19:03] Speaker 03:
As well as I've been able to consider the studies of the National Academy of Sciences and the others, and there were many, before there was any manual, before there was any presumption,

[00:19:19] Speaker 03:
but when it looked as if adverse reactions might be taking place, that there was an enormous amount of scientific evidence of how long the apparently Agent Orange, the reason that it was applied so frequently was because it had a very short life and exposure to sunlight and it didn't last in water.

[00:19:45] Speaker 03:
So it was frequently used and so

[00:19:47] Speaker 03:
all of this that went into, ultimately, the manual, which was designed to avoid litigation, such as what we have now.

[00:19:57] Speaker 03:
How can you say that it didn't establish presumptions?

[00:20:02] Speaker 03:
It may be where the limit is, or the presumption.

[00:20:06] Speaker 03:
And I'm willing to say that it is 100 feet away from the border.

[00:20:09] Speaker 03:
Is that beyond the limit?

[00:20:10] Speaker 03:
I don't know if the spray travels through the air.

[00:20:14] Speaker 03:
And I'm sure all of that has been

[00:20:16] Speaker 03:
studied to death at that time because of the number of pages that are referred to in those reports.

[00:20:25] Speaker 03:
So don't we really have to take some kind of fresh look in all fairness rather than say, well, he's 100 feet away.

[00:20:36] Speaker 03:
I have no idea what that means, but I have a feeling there's a lot of information that can be brought to bear, and if not, that maybe ought to be brought

[00:20:46] Speaker 03:
created and brought to bear.

[00:20:48] Speaker 03:
So what do we do with that?

[00:20:50] Speaker 01:
Your Honor, in this case, the board specifically referenced studies and referenced the fact that herbicides, not necessarily Agent Orange, acknowledged that they were sprayed on the perimeters of the base.

[00:21:08] Speaker 01:
However, that

[00:21:09] Speaker 01:
the herbicides, there is no indication that they were sprayed within the interior of the base, or the air base, and specifically found that Mr. Frederico did not meet the circumstances of the manual, which found that he was at or near.

[00:21:29] Speaker 01:
So he did not even reach the fact base analysis that's set forth within the manual to establish exposure.

[00:21:37] Speaker 01:
So in this case,

[00:21:39] Speaker 01:
There would be no need to remand because he cannot establish that he was at or near the perimeter.

[00:21:47] Speaker 03:
Well, it's very troubling the more we get into it.

[00:21:50] Speaker 03:
The purpose of this spraying is to totally destroy trees and brush and so on so no gorilla can hide there and shoot at you.

[00:22:01] Speaker 03:
So it isn't as if you're just putting a couple of drops of herbicide in your backyard.

[00:22:08] Speaker 03:
that the volumes of spray were enormous, which seems to be why certain well-documented consequences.

[00:22:17] Speaker 03:
When you think of it that way, open air barracks 100 feet away suddenly needs to be viewed perhaps differently.

[00:22:26] Speaker 03:
More objectively, certainly not, I would think, disposed of out of hand because you didn't prove it.

[00:22:32] Speaker 03:
You can't expect the veterans to provide this scientific proof.

[00:22:36] Speaker 01:
Your Honor, and I believe that's what I was getting to at the beginning and stating that this is not the presumption that we think with specifically regulatory presumptions or statutory presumptions.

[00:22:51] Speaker 01:
The VA has made the determination at this point in time that all that can be established is that the herbicides in Thailand were only used on the perimeter.

[00:23:03] Speaker 01:
It's not the same as in Vietnam where there seems to be an indication or there's evidence that herbicides were essentially dumped were all over the place.

[00:23:14] Speaker 01:
There are findings and why it's a fact-based analysis in Thailand is the findings at this point are that the herbicides were only used on the perimeter.

[00:23:27] Speaker 04:
Granting you that counsel.

[00:23:29] Speaker 04:
There's a perimeter road, and the question in this case is how much time did he spend in that perimeter road compared to other people?

[00:23:42] Speaker 04:
And I was somewhat troubled by the point that your opposing counsel made early in his opening statement.

[00:23:53] Speaker 04:
The court said, similarly, the board's conclusion that the fact that Mr. Federico regularly traveled the perimeter road is not sufficient to establish exposure to herbicides is adequately supported.

[00:24:07] Speaker 04:
The board explained that such a finding would in essence negate the requirements of the manual provisions, here's the manual again, because nearly, quote, everyone within the base, unquote, would have traveled that road.

[00:24:22] Speaker 04:
and then with the citation.

[00:24:25] Speaker 04:
That sounds to me like both the court and the board were confusing two kinds of issues.

[00:24:36] Speaker 04:
One issue was, yes, the perimeter road was there, and yes, some people traveled it, maybe crossed it to get onto the base.

[00:24:45] Speaker 04:
But other people and the evidence in his case is he wrote it all the time because his dump was down at one end of the base where he had to get to in order to deal with the stuff he was handling.

[00:24:59] Speaker 04:
It doesn't sound to me like they even bothered to figure out that there could be a difference in those situations.

[00:25:06] Speaker 04:
That's a very troubling statement.

[00:25:08] Speaker 01:
And in that situation, Your Honor, one need only look to the totality of the opinion, both from the Board and the Veterans Court.

[00:25:17] Speaker 01:
While they did arguably make a general statement that that is not or could negate the provisions of the manual, the totality of the opinion establishes why.

[00:25:28] Speaker 01:
And that goes back to the DOD study stating that

[00:25:32] Speaker 01:
the uh... herbicides were not sprayed within the road and that the photograph established where they actually made a fact-finding to that extent.

[00:25:40] Speaker 02:
Didn't they express fact-finding that the herbicides were not on the roads in this case?

[00:25:45] Speaker 01:
Right.

[00:25:45] Speaker 01:
Yes, Your Honor.

[00:25:46] Speaker 02:
And that gets to... And they made that in conjunction with why they were saying therefore his travel to and from on the Premier Road once a day wasn't enough to justify or prove that he had any herbicide exposure.

[00:25:58] Speaker 01:
Yes, Your Honor.

[00:25:59] Speaker 01:
And um...

[00:26:02] Speaker 02:
I'm sorry, go ahead.

[00:26:02] Speaker 02:
Oh, no, after you, Your Honor.

[00:26:05] Speaker 02:
Well, didn't it also make a bunch of, this is the thing, this is why I'm confused, is I didn't understand this case to be a generalized finding about what would or wouldn't constitute exposure, or even what would or wouldn't constitute entitlement to the presumption.

[00:26:21] Speaker 02:
I understood this case to be quite narrow because, for example, the board went on and on at pages 19 to 20 of its opinion

[00:26:31] Speaker 02:
detailing how the drawings that were actually submitted show that, for example, where his barracks were, though only 100 feet from the perimeter, it was entirely wooded between the perimeter and his barracks.

[00:26:42] Speaker 02:
So what the board actually found, as a matter of fact, the dense foliage demonstrates that herbicides were not affecting the area between the perimeter and his barracks.

[00:26:54] Speaker 02:
If they were, there would not be the level of density that there was.

[00:26:58] Speaker 02:
And that that was a fact finding by the board

[00:27:01] Speaker 02:
that is specific to this case that has nothing to do with how close someone in a random situation might be to a perimeter or not, right?

[00:27:08] Speaker 01:
Yes, Your Honor.

[00:27:08] Speaker 01:
And that's why saying this case is unique in that we do have this dispositive evidence.

[00:27:15] Speaker 02:
And the board cited it, relied on it, made fact findings with regard to it.

[00:27:18] Speaker 02:
It didn't just rely on the manual.

[00:27:21] Speaker 02:
It made its own independent fact findings that were unique to this set of facts.

[00:27:25] Speaker 01:
Yes, Your Honor.

[00:27:26] Speaker 01:
That is exactly the government's argument in this case.

[00:27:30] Speaker 01:
Unless the court has further questions, we would ask that the court dismiss for lack of jurisdiction or affirm the Veterans Court.

[00:27:39] Speaker 03:
Mr. Any more questions?

[00:27:40] Speaker 03:
No, ma'am.

[00:27:42] Speaker 03:
Any more questions?

[00:27:42] Speaker 03:
Okay.

[00:27:43] Speaker 03:
Thank you.

[00:27:44] Speaker 03:
Thank you, Mr. Glory.

[00:27:48] Speaker 03:
Mr. Mammonet.

[00:27:52] Speaker 04:
I have to say that when we get all through looking at all of the, including the unfortunate language,

[00:28:01] Speaker 04:
I'm pretty much bothered by what's bothering Judge Moore, which is when we get right down to the bottom of this case, it looks to me like it's a case of how they weighed the facts and how they treated the question.

[00:28:21] Speaker 04:
And as Judge Moore properly points out, there's some evidence that there was

[00:28:27] Speaker 04:
a strip of woods between the perimeter road and his ammunition dump and where he lived and so on.

[00:28:35] Speaker 04:
Doesn't that go to our jurisdiction?

[00:28:38] Speaker 04:
We cannot decide cases of application of law to fact, can we?

[00:28:48] Speaker 00:
Your honor, that's correct, but it does not, and that's not what we're asking.

[00:28:52] Speaker 00:
If I may comfort you on one level on what council said, that that's actually not correct about what the record says, but that's not what we need to rely on.

[00:29:00] Speaker 00:
First, the record was not that there was no herbicide used on the perimeter road.

[00:29:06] Speaker 00:
That was not what that provision says.

[00:29:08] Speaker 00:
So that wasn't actually part of what the board's decision making was.

[00:29:12] Speaker 00:
And as far as the photos that were referenced, those photos were introduced by the veteran to show where he worked.

[00:29:18] Speaker 00:
It wasn't introduced as what the location looked like when he served.

[00:29:22] Speaker 00:
And they were misinterpreted and misused by the board beyond what the veteran actually introduced them for.

[00:29:26] Speaker 00:
Now to your Honor's jurisdictional question, I don't think you have to consider that.

[00:29:29] Speaker 00:
You don't have to be bothered by

[00:29:30] Speaker 00:
what I think are misuse of the record evidence here, because what the board decided this on was saying, okay, he traveled the perimeter road.

[00:29:39] Speaker 00:
We accept that as a fact.

[00:29:40] Speaker 00:
And the Court of Appeals below said the board took that as a fact, that he traveled the perimeter road, but that's not enough.

[00:29:48] Speaker 00:
It's not enough that you travel daily on the perimeter road that the presumption doesn't apply in that context.

[00:29:54] Speaker 00:
That was the legal error that applies.

[00:29:56] Speaker 02:
Can I just ask a factual question to make sure I'm not confused

[00:29:59] Speaker 02:
On page A10, there is a quote from the board opinion that says, in spite of the veteran's suggestions otherwise, all evidence shows that any herbicide usage in Thailand was on base perimeters, not within the bases or on the roads.

[00:30:15] Speaker 02:
Is that in the sentences that follow afterwards not a fact finding by the board in this particular case

[00:30:24] Speaker 02:
that there weren't herbicide uses or at least no evidence to show herbicide uses on the roads?

[00:30:30] Speaker 00:
I think that was the board's fact finding to say there were no evidence of uses on the interior.

[00:30:34] Speaker 00:
That's what the board was saying.

[00:30:35] Speaker 00:
I know they said roads there, Judge Moore, but I think if you looked earlier at the opinion, the context of what those findings were, we're talking about use of herbicides on the interior roads.

[00:30:46] Speaker 00:
And so I think it has to be understood what the board was saying in the full context.

[00:30:52] Speaker 02:
But the very next sentence after the or on the road sentences as for the veterans contention that the crossing the perimeter and traveling on the road near the perimeter constitute herbicide exposure.

[00:31:02] Speaker 02:
The board notes everyone so everyone does it basically.

[00:31:05] Speaker 02:
So are you saying.

[00:31:06] Speaker 02:
that is distinguishing from the fact-finding on roads, that that next sentence makes it clear that when they say perimeter road, that's not the roads that they're talking about.

[00:31:14] Speaker 00:
I think that's a fair reading, Judge Moore, is that they're drawing a distinction there of, okay, we're going to decide it on this final question of, he traveled the perimeter road, is that enough?

[00:31:24] Speaker 00:
And they said, no, we're not going to say that this manual applies, concession applies, because that would mean everyone would.

[00:31:30] Speaker 00:
not looking at his particular context, his particular case of whether he was entitled to that concession or whether he had established exposure.

[00:31:38] Speaker 00:
And to the question of whether this is a presumption or not, I think that's a little bit of semantics.

[00:31:42] Speaker 00:
This court has called it a presumption.

[00:31:43] Speaker 02:
When you say he didn't get to this particular case about whether he was exposed or he... I mean, you go through all this evidence where they point to the actual photographs and they talk about the topography and they talk about what the studies show.

[00:31:54] Speaker 02:
I mean, I don't... What other... Is there some evidence

[00:31:58] Speaker 02:
that he introduced about exposure on the perimeter roads that wasn't considered or discussed or something?

[00:32:06] Speaker 00:
I didn't understand it to be disputed in the record that the herbicides were used on the perimeter.

[00:32:13] Speaker 02:
But not on the perimeter roads.

[00:32:15] Speaker 00:
That's what I... Well, I guess the record doesn't explain or doesn't address whether the perimeter road is on the perimeter or not on the perimeter.

[00:32:22] Speaker 00:
That was not a finding below.

[00:32:23] Speaker 00:
That was no evidence presented that there was no perimeter road on the perimeter.

[00:32:28] Speaker 02:
But the... But there was no evidence that there was herbicide on the roads.

[00:32:32] Speaker 02:
I mean, I think that's the problem, right?

[00:32:33] Speaker 02:
The problem for you is that you have to establish exposure.

[00:32:39] Speaker 00:
Well, I don't think that the...

[00:32:43] Speaker 00:
There was evidence in the record that the herbicide was used on the perimeter.

[00:32:47] Speaker 00:
The photos show that the perimeter road was, we think, along the perimeter.

[00:32:51] Speaker 00:
That shows the location.

[00:32:53] Speaker 00:
But the board didn't address those facts.

[00:32:55] Speaker 00:
They didn't decide it on that basis to say that, well, the perimeter roads aren't on the perimeter.

[00:33:00] Speaker 00:
That's nowhere in the board's decision.

[00:33:03] Speaker 04:
If it looks like a duck and quacks like a duck, it's a duck.

[00:33:06] Speaker 00:
Or I can confirm your honor, yes.

[00:33:08] Speaker 04:
So if it's a perimeter road, one would think it's on the perimeter, wouldn't one?

[00:33:12] Speaker 00:
Correct.

[00:33:12] Speaker 00:
And I think the way that even in this quote that the Veterans Court had of the board's decision, I think that's what the board understood, that the perimeter road was on the perimeter, but they were going to say that's not enough because that means everyone who goes along is going to be entitled.

[00:33:24] Speaker 04:
But there are a lot of different openings in the perimeter road that would allow for quite a difference in exposure opportunities.

[00:33:33] Speaker 00:
Absolutely, Your Honor, and if I just may... If you look at the cases that the veteran or the board, cases that were cited where the board has applied, conceded herbicide exposure, found herbicide exposure, it's on facts much

[00:33:53] Speaker 00:
much less exposure than here, the instance where a veteran went in and out of a gate at least twice to the city, and that was enough.

[00:34:03] Speaker 00:
Judge Newman, to your point about whether this veteran being 100 yards or 100 feet away from the perimeter where he lived, that was enough.

[00:34:10] Speaker 00:
There was a case that we identified on the government's brief, page 23,

[00:34:14] Speaker 00:
outside of Pennix 173, where the veteran lived 150 feet away from the barracks, from the perimeter of his barracks.

[00:34:21] Speaker 02:
And that was enough.

[00:34:22] Speaker 02:
But that's why it's sounding like a fact-finding to me, because in that case, maybe there weren't pictures that showed dense foliage in between those two locations.

[00:34:32] Speaker 02:
When that 100 feet has a lot of dense foliage, that would suggest herbicides aren't reaching that particular 100 feet.

[00:34:38] Speaker 02:
Maybe the other 160 feet was a barren wasteland.

[00:34:42] Speaker 02:
We don't know.

[00:34:43] Speaker 02:
why it's starting to sound like a fact-finding to me.

[00:34:46] Speaker 00:
Your Honor, Your Honor, I appreciate that, but I think that, again, it's important to remember.

[00:34:50] Speaker 00:
And you can search a record, you will not find a single instance where there was a representation that this photo was of or were of where he was at that time.

[00:35:00] Speaker 00:
I mean, it was designed to show the layout of the base.

[00:35:03] Speaker 00:
It was taken beyond that by the board that no one that I'm aware of had ever explained that or used it in that way to say, well, this

[00:35:10] Speaker 00:
depicts what it was in 1969 when the veteran was there.

[00:35:13] Speaker 00:
This was designed to show the base.

[00:35:15] Speaker 00:
And they took it, I mean, well, there's plants there now, so there must have never been plants.

[00:35:19] Speaker 00:
The whole nature of herbicides are you apply them, things go back.

[00:35:22] Speaker 00:
You keep applying them, things go back.

[00:35:23] Speaker 00:
So I don't think that the photographs support what the government or what the board did here.

[00:35:29] Speaker 00:
But again, I don't think you need to go there.

[00:35:30] Speaker 00:
I think that you can decide this on the basis of the perimeter road.

[00:35:33] Speaker 00:
This veteran was clearly on the perimeter road.

[00:35:36] Speaker 00:
And the board's reading, the veteran court's reading of the manual

[00:35:40] Speaker 00:
is legally incorrect and cannot be sustained.

[00:35:43] Speaker 00:
And so for that reason, we'd ask that the court vacate the board's decision, the court's decision, and revamp.

[00:35:48] Speaker 03:
OK, thank you.

[00:35:49] Speaker 03:
Thank you both.

[00:35:50] Speaker 03:
The case is taken under submission.