[00:00:16] Speaker 03:
OK, the next case before the court is Garcia versus Wilkie.

[00:00:40] Speaker 03:
Case number 181032.

[00:00:43] Speaker 03:
It is an appeal from a decision of the Court of Appeals for Veterans Claims.

[00:00:54] Speaker 03:
Can you tell me how to pronounce your name?

[00:00:56] Speaker 02:
I'm Bill Lesperance.

[00:00:57] Speaker 03:
Lesperance.

[00:00:59] Speaker 03:
OK.

[00:01:00] Speaker 03:
You want five minutes for rebuttal?

[00:01:02] Speaker 03:
All right.

[00:01:03] Speaker 03:
You may begin.

[00:01:04] Speaker 02:
Thank you.

[00:01:08] Speaker 02:
May it please the Court?

[00:01:10] Speaker 02:
Mr. Hockey knows more about the Cook case, 318-53, than I'm ever going to know.

[00:01:18] Speaker 02:
And all I can tell the court is this may be an example of no good deed goes unpunished.

[00:01:27] Speaker 02:
The veteran in this case served two years back during the Korean War era, got an honorable discharge, got an appropriate amount of rank, never gotten any trouble.

[00:01:41] Speaker 02:
And if that hadn't happened, we wouldn't be here.

[00:01:48] Speaker 03:
You may be right.

[00:01:51] Speaker 02:
The person at the Appeals Management Center office in Cleveland that decided to have the doctor rewrite her opinion couldn't figure out how he got an honorable discharge, how the veteran got an honorable discharge.

[00:02:07] Speaker 02:
Because if he was schizophrenic at the time,

[00:02:11] Speaker 02:
He would have gotten in trouble.

[00:02:13] Speaker 02:
He wouldn't have been able to do it.

[00:02:15] Speaker 02:
Wouldn't have been able to complete his tour.

[00:02:16] Speaker 02:
So here we are.

[00:02:18] Speaker 03:
And yes, that's one of the things that the board was looking at.

[00:02:26] Speaker 03:
But even if we think that what the, and I don't know about this appeals management center or their authority, but even if we think that what happened stunk,

[00:02:38] Speaker 03:
to use a blatant term.

[00:02:40] Speaker 03:
In other words, that they shouldn't have manipulated the doctor's conclusions that way or suggested that the doctor's conclusions be altered.

[00:02:49] Speaker 03:
Even if we believe that's the case, how do we get around the fact that that information was in the record at least before the most recent CUE?

[00:03:02] Speaker 02:
Actually, it's only sort of true.

[00:03:05] Speaker 03:
OK.

[00:03:06] Speaker 03:
What part is true and what part's not true?

[00:03:08] Speaker 02:
The representative for the veteran at the time all that was going on in 2005 was given the information fairly late in the game, but they did file a brief in 2006.

[00:03:29] Speaker 02:
What they filed in the brief was an indicator that the person at the Appeal Management Center

[00:03:38] Speaker 02:
had given direction to the medical examiner in Albuquerque to do a little bit more.

[00:03:51] Speaker 02:
What the American Legion didn't know or didn't articulate at that time was all that language that was in the directive from the Appeal Management Center about you couldn't possibly have been right in this medical opinion.

[00:04:09] Speaker 02:
because this veteran otherwise would have been dishonorably discharged or had Article 15 disciplinary action or not completed his term of service or had some problems in the service which didn't exist.

[00:04:26] Speaker 02:
That language didn't start appearing in the record until 2010.

[00:04:31] Speaker 02:
The brief of the American Legion was in the record.

[00:04:39] Speaker 03:
But you're saying that exchange from the management center to the doctor was not in the record until 2010?

[00:04:48] Speaker 02:
It wasn't.

[00:04:49] Speaker 02:
And it started being apparent about two, three years later.

[00:04:54] Speaker 02:
That came up.

[00:04:55] Speaker 02:
There was a record in 2006.

[00:04:58] Speaker 02:
There was not a record in 2008.

[00:05:02] Speaker 02:
There was a record in 2010.

[00:05:04] Speaker 02:
And that's when this document started becoming obvious.

[00:05:11] Speaker 03:
So is your argument not so much that you should be allowed to raise a due process claim at any point in time, but you should be allowed to raise a due process claim after an initial CUE decision if there's evidence that the information that's relevant to the due process claim was not produced or not provided to the veteran?

[00:05:40] Speaker 02:
That's correct.

[00:05:40] Speaker 02:
And it wasn't provided to the veteran initially.

[00:05:43] Speaker 02:
When that directive came out in the middle of 2005, it was never sent to the veteran or his representative.

[00:05:51] Speaker 02:
They only discovered sometime during the next year when their briefing was done in 2006.

[00:05:59] Speaker 02:
But I didn't discover it until a couple of years later, because I didn't see it in that original record.

[00:06:06] Speaker 03:
But there's a different question between whether you saw it and whether it was in the record.

[00:06:11] Speaker 02:
Yeah.

[00:06:12] Speaker 02:
Well, no, it wasn't in the record.

[00:06:14] Speaker 02:
The American Legion's brief was in the record.

[00:06:18] Speaker 02:
But the part of the language I never saw about that directive that was being sent to the Albuquerque regional office, that language about how the veteran could not possibly have

[00:06:32] Speaker 03:
I don't mean to cross-examine you here, but are you saying you didn't see it or it wasn't in the record?

[00:06:39] Speaker 02:
It wasn't in the record.

[00:06:40] Speaker 03:
OK.

[00:06:42] Speaker 02:
And Mr. Hockey is not saying anything wrong here, because from the look of it, the American Legion at some point finally did see this.

[00:06:53] Speaker 02:
But the part that they put in their brief doesn't go to what we've been talking about.

[00:06:58] Speaker 03:
Then why didn't you argue that this was a newly discovered evidence case?

[00:07:02] Speaker 02:
Because it was.

[00:07:05] Speaker 03:
But you never argued that way.

[00:07:09] Speaker 03:
Both of these briefs talk about the two exceptions to the finality rule.

[00:07:13] Speaker 03:
One of them is newly discovered evidence.

[00:07:16] Speaker 03:
But you never made that point.

[00:07:17] Speaker 03:
You didn't say it was newly discovered.

[00:07:19] Speaker 02:
Well, it just didn't seem to me that it should be necessary.

[00:07:23] Speaker 02:
It just seems to me that after Henderson, it just should not be necessary.

[00:07:29] Speaker 00:
Do you think that that might still be available to you, a new and material evidence claim, not a clear and unmistakable error?

[00:07:35] Speaker 02:
Probably, but we have a situation now where we have a deceased veteran.

[00:07:39] Speaker 02:
It's going to be a little hard to get him a medical exam.

[00:07:43] Speaker 02:
And I've been trying to argue that for about the last five years.

[00:07:48] Speaker 02:
I probably would have abandoned the age of the case in order to get the widows some benefits, but I just can't get to a feel of a new medical exam.

[00:07:59] Speaker 02:
He died in 2012.

[00:08:01] Speaker 03:
Why?

[00:08:01] Speaker 03:
I mean, I understand what Henderson says, and that it talks about how this is a very veteran-friendly context, and that's how we should interpret it.

[00:08:12] Speaker 03:
But I don't really understand why Henderson is directly relevant to this question.

[00:08:18] Speaker 02:
Well, it is, because what you have in that Cook case, you have a...

[00:08:26] Speaker 02:
I taught school for a brief time, and it kind of reminds me of trying to get all the crayons in the right box, the right colors in the right box.

[00:08:36] Speaker 02:
But it's a case management kind of an opinion and a case management kind of activity that's going on there.

[00:08:47] Speaker 02:
It's not the same level of activity as trying to see if we're going to serve the better.

[00:08:53] Speaker 02:
It's just not.

[00:08:55] Speaker 02:
And what I saw when I saw Mr. Hockey's brief was a great job trying to do the right thing, but it's the wrong thing.

[00:09:05] Speaker 02:
I mean, it's one thing to do the right job trying to do the right thing, but it's just the wrong thing.

[00:09:15] Speaker 02:
And I think that's all we have here.

[00:09:18] Speaker 02:
We also have a whole different problem.

[00:09:20] Speaker 02:
I mean, there's a whole other side of this issue.

[00:09:23] Speaker 02:
a little bit perplexed that the Veterans Court, after that argument last year, did what they did with this case.

[00:09:31] Speaker 02:
Because the real underlying issue from day one in this case, and this is including what the American Legion was seeing back in 2005 and 2006, is this veteran never got a real hearing.

[00:09:45] Speaker 02:
I mean, he had a physical hearing where the party showed up and they told their story.

[00:09:51] Speaker 02:
But he never had a real adjudication of this case.

[00:09:54] Speaker 02:
It never happened.

[00:09:56] Speaker 02:
It was always a question of missing records.

[00:09:58] Speaker 02:
It was always a question of not having the right evidence before the board because of the missing records.

[00:10:05] Speaker 02:
And the American Legion couldn't figure out what to do with it.

[00:10:08] Speaker 02:
And one of the reasons why we had some of the procedural issues that occurred back in 2006, 2007, and 2008

[00:10:16] Speaker 02:
was that we were trying to figure out how do you get the evidence in this case before the board.

[00:10:21] Speaker 02:
It's one of those cases where all the records got burned in that fire.

[00:10:24] Speaker 02:
Right.

[00:10:24] Speaker 03:
We've been having all kinds of problems with that fire in 1973.

[00:10:27] Speaker 02:
And we've all seen that.

[00:10:29] Speaker 02:
But in this particular case, we found a couple of warning reports that were corroborating.

[00:10:35] Speaker 02:
which we put into the record, and we tried to build a case that said if you look at the record as a whole, it makes sense.

[00:10:42] Speaker 03:
Do you believe that in those missing records that it would have shown that there was some disciplinary issue during his time in service?

[00:10:50] Speaker 02:
No, it wouldn't.

[00:10:51] Speaker 02:
What it did show was that he went on sick call and there was the psychiatrist.

[00:10:56] Speaker 02:
He went on sick call and it was psychiatric.

[00:10:59] Speaker 02:
That's what it would show.

[00:11:01] Speaker 02:
What we did show with the morning reports was that he went on sick call.

[00:11:05] Speaker 02:
That's as far as we can get with that.

[00:11:07] Speaker 02:
But if we actually had medical records, it would show that he went on sick call for psychiatric purposes.

[00:11:14] Speaker 02:
I'm never going to get that.

[00:11:16] Speaker 02:
It was 1954, and the records have been destroyed.

[00:11:20] Speaker 02:
It's not going to happen.

[00:11:22] Speaker 03:
OK, if you're into your rebuttal, I'd like to save the rest of it.

[00:11:32] Speaker 01:
May I please report?

[00:11:34] Speaker 01:
I have no reason to question Mr. Les Prince's recollection of what was in the claims file in 2005, but Veterans Court found, based upon a review of the record, including the brief that was filed before the board in 2006, that indeed the AMC remand request was in the claims file.

[00:11:55] Speaker 01:
The 2006 American Legion brief quotes from it.

[00:12:00] Speaker 01:
If you look at

[00:12:02] Speaker 01:
There's actually in the third paragraph in the bottom an actual quote from the same page containing this language.

[00:12:16] Speaker 01:
There's discussion on the following page about finding the report inadequate for the failure to address positive evidence of record.

[00:12:25] Speaker 00:
And what's the page in the Veterans Court decision?

[00:12:30] Speaker 01:
It's page 10, appendix 11, where the Veterans Court actually talks about this.

[00:12:35] Speaker 01:
Page 10 of the decision, but it's at appendix 11.

[00:12:41] Speaker 01:
And they refer to the fact that it's actually quoted.

[00:12:47] Speaker 01:
And it is the quote that's contained in the brief

[00:12:52] Speaker 01:
can be drawn right from the appendix, from the remand, which is at 59.

[00:13:00] Speaker 01:
So you would compare the language at appendix 131 with language at appendix 59.

[00:13:09] Speaker 01:
And particularly a rationale for this finding appears

[00:13:17] Speaker 01:
right there under the opinion request where he's asking, the AMC is asking the doctor to please provide, quote, a rationale for this finding.

[00:13:24] Speaker 01:
So I think all the evidence suggests and the Veterans Court found that it was in the record below.

[00:13:31] Speaker 01:
The question here was, or in the briefs, was simply whether or not a third exception to finality exists based upon an argument raised to the Veterans Court last year.

[00:13:42] Speaker 01:
And our position is no.

[00:13:44] Speaker 03:
So you're saying, as a matter of fact, he couldn't have made a newly discovered evidence claim because, or at least the Veterans Court has already made a finding that it wasn't newly discovered evidence.

[00:14:00] Speaker 01:
To the extent he would make a new immaterial evidence claim based upon this particular evidence, I would speculate but suspect that the court would find that that wouldn't be valid because that evidence was already in the record.

[00:14:14] Speaker 01:
That doesn't preclude him from making a different new material evidence claim based upon different new material evidence, which is an allowable exception to the finality rule.

[00:14:22] Speaker 03:
What do we do with the fact that any evidence of whether he was either disciplined during service or had psychiatric treatment would have been destroyed in the fire?

[00:14:36] Speaker 01:
So the discipline part wasn't destroyed.

[00:14:40] Speaker 01:
at least there was no record of it and there was record that he had been receiving promotions so as I understand the record certain service records were not destroyed but other records to include all the medical records that would have been created during service were destroyed as part of the 73 fire so the point that the AMC was making was generally when they are confronted with these questions of paranoid schizophrenia there's some evidence in the record that the individual had

[00:15:09] Speaker 01:
behavioral issues during service, which at the time may not have been attributed to a mental condition, but then later can form positive supporting evidence for a finding that the condition arose in service.

[00:15:20] Speaker 01:
And here, based upon those records that were available, including his exit and commendations and promotions and good service, the AMC individual, the regional office branch, raised questions about the medical report, which based

[00:15:39] Speaker 01:
pretty much clearly on the history reported by the veteran found that there could be any services.

[00:15:43] Speaker 03:
Is that a norm that they don't just accept a doctor's conclusions, that they can go back in and criticize those conclusions?

[00:15:54] Speaker 01:
So I would respond differently, Your Honor.

[00:15:57] Speaker 01:
I would say, actually, what happened here was a perfect example of how the system should work.

[00:16:02] Speaker 01:
Because it's also the case, and I think the court would probably look back at some of the veterans cases it's had over the years

[00:16:08] Speaker 01:
that you could have a situation where the regional office faced with this type of medical opinion, which does pretty much attribute the finding to history, the regional office would give it a lower probative value and simply discount it and say this other record evidence is what we would call negative evidence, evidence not supporting the claim, overcomes the probative value of the medical record.

[00:16:31] Speaker 01:
Here, what the AMC did was what we think

[00:16:35] Speaker 01:
was a nice thing, they looked at it.

[00:16:37] Speaker 01:
The reviewing official said, look, when I look at the record evidence, I'm left with no reason to give any probative value to your opinion.

[00:16:45] Speaker 01:
Can you change my mind and send it back and ask for that individual to?

[00:16:51] Speaker 01:
So if that doctor had responded to that request and said, no, no, this particular type of schizophrenia is the kind of thing that wouldn't necessarily show up in good service reports, he might be able to have functioned perfectly well.

[00:17:04] Speaker 01:
And so it's not unusual for there to be, in my opinion, onset and in service yet, not have any kind of outward manifestations at the time.

[00:17:14] Speaker 01:
Now had that been the response from the doctor, you now have a very probative opinion that that RO could look at and say, service connection notwithstanding what I would otherwise consider to be negative evidence.

[00:17:24] Speaker 03:
It looks like instead the doctor just punted and said, oops, OK.

[00:17:27] Speaker 01:
I don't have anything in response.

[00:17:29] Speaker 01:
In that case, then, it looked like there was no probative evidence in support of a particular claim at that time.

[00:17:35] Speaker 01:
And again,

[00:17:38] Speaker 01:
I think that was a perfectly, yes.

[00:17:40] Speaker 00:
Can I ask you this?

[00:17:42] Speaker 00:
My understanding, just tell me if I'm wrong, is that premise that on this point, on the AMC interference of constitutional proper point, the Veterans Court relied on the Hillier interpretation of the regulations saying you get one CUE when the subject of the CUE is board error.

[00:18:02] Speaker 00:
Is that right?

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

[00:18:05] Speaker ?:
OK.

[00:18:05] Speaker 00:
And I think you have a footnote in your brief that says CUE about RO error is not subject to the you get one shot rule.

[00:18:14] Speaker 00:
And that, I guess, led me to ask, at least in my mind.

[00:18:18] Speaker 01:
Why?

[00:18:18] Speaker 00:
No, no.

[00:18:19] Speaker 00:
Where is the AMC in this?

[00:18:22] Speaker 01:
The AMC is a creature of the regional office.

[00:18:25] Speaker 00:
So why is the error here a board error as opposed to an RO error?

[00:18:34] Speaker 01:
Because there was an appeal taken from the RO to the board.

[00:18:37] Speaker 01:
And then the board finally decided the issue.

[00:18:39] Speaker 01:
And at that point, the RO case is subsumed by the board's decision.

[00:18:44] Speaker 01:
And so in order to collaterally attack that decision, you need to attack the final agency level decision that was at issue.

[00:18:49] Speaker 01:
And here it was a board decision.

[00:18:51] Speaker 01:
So you're right, although the error may have been an RO level error because of the timely appeal at the time and the issuance of a final board decision.

[00:19:02] Speaker 00:
So the separate rule about CUEs can be multiple for RO errors, has a bite only for RO errors that didn't at the time get appeal to the board.

[00:19:15] Speaker 01:
Correct.

[00:19:18] Speaker 03:
You said that clearly in Cushman,

[00:19:21] Speaker 03:
he presented his due process claim as part of a CUE.

[00:19:25] Speaker 03:
But when I read Cushman, we kept talking about his CUE claims and then separately talking about his due process claims.

[00:19:32] Speaker 01:
I know that, yes.

[00:19:33] Speaker 01:
I read it similarly, Your Honor.

[00:19:35] Speaker 01:
What we're trying to do, though, is to grapple with what could Cushman mean in a world where Cook already existed.

[00:19:43] Speaker 01:
When this court, in sitting in full, says there are two exceptions to finality, and arguably dicta, addresses even a potential

[00:19:51] Speaker 01:
due process allegation, although I will say just as an aside, the allegation in Hare and in Cook, and frankly in this case, are all of a set.

[00:20:00] Speaker 01:
They're basically, they're like assistance-types arguments.

[00:20:03] Speaker 01:
Something went askew during the development phase of the case.

[00:20:07] Speaker 01:
It's not so much like in Cushman where something happened and Mr. Cushman didn't know about it.

[00:20:12] Speaker 01:
Here we have a complaint about the quality of the assistance that was provided or not provided as the

[00:20:19] Speaker 01:
case may be by the VA.

[00:20:22] Speaker 01:
And that was a known thing that could have been challenged.

[00:20:25] Speaker 03:
Am I correct that Cooke was operating under regulations or considering regulations that have since been amended?

[00:20:35] Speaker 01:
Cooke?

[00:20:36] Speaker 01:
Yes.

[00:20:38] Speaker 01:
The only post-Cooke regulations, first of all, I think Cooke was really focused on the statutes, 5108 for new evidence, 5109A and 7111 for Q.

[00:20:50] Speaker 01:
The only, I think, development regulation-wise substance in the queue would be some changes to 3.156, which is the regulation that implements 5108.

[00:21:01] Speaker 01:
But nothing that would have affected this court's decision, which was that Congress, in issuing 5108 and 5109A and 7111, authorized these two exceptions.

[00:21:14] Speaker 01:
And the court's aware, when I say 5109A and 7111, those are the two

[00:21:18] Speaker 01:
separate but same Q statutes identifying Q in either a regional office decision or a board decision.

[00:21:24] Speaker 03:
Are you comfortable that the board has the authority to even consider a constitutional claim?

[00:21:30] Speaker 01:
Yeah, well, the board has a statute which specifically deals with process arguments.

[00:21:34] Speaker 01:
So, I mean, a regulation which deals with process arguments.

[00:21:39] Speaker 01:
I'm not, we're not uncomfortable with the board entertaining the idea that

[00:21:46] Speaker 01:
there was some sort of denial of process.

[00:21:49] Speaker 01:
They do that all the time.

[00:21:51] Speaker 01:
Part of the reality, though, is Matthews due process considerations generally are a backstop to something provided by statute or regulation.

[00:22:01] Speaker 01:
And our position historically, and continues to be, that the scheme developed by Congress and the VA to provide veterans assistance goes well beyond anything that Matthews would require.

[00:22:13] Speaker 01:
outside those weird cases like you had with Cushman, your process has built in gates, or gatekeepers even, that allow someone to challenge any concerns.

[00:22:24] Speaker 01:
Like in this case, had there been concern at the time, and it looks like the American Legion was aware of this AMC action but had a different view of the problem, they weren't so much concerned with the fact that the AMC asked for

[00:22:41] Speaker 01:
reconsider or an addendum to the medical opinion.

[00:22:45] Speaker 01:
Their concern at the time was that given that, and given that the doctor had changed her mind, then the duty to assist would have required the VA to go on and try to find some other doctor report that could have addressed this question.

[00:22:57] Speaker 01:
That's the gist of the briefing that they presented to the board.

[00:23:01] Speaker 01:
But the long and short answer is, no, we don't have a problem with the board.

[00:23:05] Speaker 01:
The Veterans Court statute specifically says that it can look at

[00:23:10] Speaker 01:
whether the secretary complies with the Constitution in his actions.

[00:23:17] Speaker 01:
There's that issue we discussed in another case about facial challenges, but that's not an issue here.

[00:23:23] Speaker 01:
And of course, this court has jurisdiction to address constitutional questions to the extent they're presented in a decision on appeal from the Veterans Court.

[00:23:33] Speaker 01:
So we think that

[00:23:34] Speaker 00:
Do we have jurisdiction, I don't know if it matters here, to review factual findings about waiver of constitutional arguments?

[00:23:45] Speaker 01:
I think the statute says that this court's normal prohibition against factual review is

[00:23:50] Speaker 00:
subject to this exception.

[00:23:52] Speaker 01:
Accepted when it comes to constitutional questions.

[00:23:55] Speaker 00:
Does that exception reach not just facts that go into the merits of the constitutional question, but also facts that go into whether there has been a waiver of it and therefore you don't even get to the merits?

[00:24:11] Speaker 01:
I'm not prepared at this moment to concede that point, but I recognize the question and normally I think that the initial

[00:24:20] Speaker 01:
answer would be probably, but I reserve the right to consider that further at the appropriate time.

[00:24:29] Speaker 02:
The American Legion talked about

[00:24:52] Speaker 02:
The reporter was asked to obtain a rationale for the February 05 finding and to obtain a specific declaration of claims file review.

[00:25:05] Speaker 02:
That's all.

[00:25:07] Speaker 02:
There was never any mention made by the American Legion about the pejorative language in the request.

[00:25:16] Speaker 02:
And what's really interesting about that... But isn't Mr. Hockney right that

[00:25:22] Speaker 03:
Well, your recollection of what's in the file, we can accept coming from you as an officer of the court.

[00:25:28] Speaker 03:
But we are bound by the factual determination that the Veterans Court made that it actually was in the file.

[00:25:37] Speaker 02:
But the Veterans Court doesn't specify at what point the request was in the file.

[00:25:46] Speaker 02:
I don't believe.

[00:25:47] Speaker 02:
But in any event, they may be wrong.

[00:25:52] Speaker 02:
And it's a small distinction, but Mr. Hockey is not incorrect that the brief that was done by the American Legion talks about this request.

[00:26:06] Speaker 02:
But the request itself doesn't seem to be evident to the veteran or to the veteran's representative as far as I was concerned until a couple of years later.

[00:26:18] Speaker 02:
That's where it shows up.

[00:26:22] Speaker 02:
And you can also see, I'm going to respond to something that Judge Turano said, because it's really interesting.

[00:26:28] Speaker 02:
The end of that brief, the American Legion trial, goes for two pages into this whole issue about why is this appeals management center dealing with this thing?

[00:26:41] Speaker 02:
The appeals management center has different offices.

[00:26:44] Speaker 02:
There's one right around the corner here.

[00:26:45] Speaker 02:
And there's this one in Cleveland that did this particular case.

[00:26:50] Speaker 02:
13 years ago, whatever it is.

[00:26:52] Speaker 02:
And that is an alternative regional office.

[00:26:56] Speaker 02:
It's not the board, and it's not the regional office.

[00:27:00] Speaker 02:
The agency of original jurisdiction is Albuquerque.

[00:27:05] Speaker 02:
And the American Legion, and I did, too.

[00:27:10] Speaker 02:
I was very unhappy that this whole thing was being done by an alternative regional office that we have no connection with.

[00:27:20] Speaker 02:
At the time, and I still am, we still have this issue.

[00:27:24] Speaker 03:
Are you saying it was being handled out of the regional office in Cleveland, or simply that the AMC that reports to the regional office in Albuquerque was working on it?

[00:27:37] Speaker 02:
It doesn't work that way.

[00:27:38] Speaker 02:
The AMC does not report to the regional office in Albuquerque.

[00:27:43] Speaker 02:
It doesn't work like that.

[00:27:44] Speaker 02:
it's its own entity.

[00:27:46] Speaker 02:
And it pretends to be the same thing as the agency of original jurisdiction.

[00:27:51] Speaker 02:
It's not.

[00:27:52] Speaker 02:
And that's what that brief, the last two pages, is all about.

[00:27:57] Speaker 02:
They were issuing a statement of the case about this whole issue.

[00:28:02] Speaker 02:
And then they were rendering an opinion about this whole issue as if they were the Albuquerque agency original, regional office

[00:28:13] Speaker 02:
Agency of Original Jurisdiction, AOJ, and they're not.

[00:28:17] Speaker 02:
And there's no connection between the veteran and this thing in Cleveland at all.

[00:28:22] Speaker 02:
And it's not really an arm of the board.

[00:28:24] Speaker 02:
The board sends the paperwork to these AMC offices to have them do the secondary work, but they didn't send it back to Albuquerque.

[00:28:38] Speaker 02:
And you're right.

[00:28:38] Speaker 02:
I mean, this is exactly what was going on there.

[00:28:41] Speaker 02:
And we originally requested that this record be improved and expanded and have the thing actually decided correctly in 2007 at the regional office level.

[00:28:55] Speaker 02:
That's why it was done that way.

[00:28:57] Speaker 02:
Because all of these records were missing and we wanted the people to actually do the work that could do it.

[00:29:05] Speaker 03:
Okay.

[00:29:06] Speaker 03:
Thank you.

[00:29:06] Speaker 03:
Any last words?

[00:29:08] Speaker 02:
I do.

[00:29:09] Speaker 02:
For one second, right?

[00:29:12] Speaker 02:
You know, as we all know, the government's interest in the veterans' claim shouldn't be to win.

[00:29:17] Speaker 02:
It should be to see that justice is done.

[00:29:19] Speaker 02:
And Simon Sinek, in his book about five years ago, Start with Why, says, if we were starting with the wrong questions, if we don't understand the cause, then even the right answers will steer us wrong.

[00:29:39] Speaker 03:
Thank you.

[00:29:39] Speaker 03:
Thank you.

[00:29:43] Speaker 03:
We thank both councils.