[00:00:00] Speaker 02:
that the manual on its face covers him.

[00:00:04] Speaker 02:
Yes, Your Honor.

[00:00:05] Speaker 02:
But they didn't apply the manual to him.

[00:00:08] Speaker 01:
Yeah, they did not do so correctly.

[00:00:10] Speaker 01:
The Board of Veterans' Appeals and the court discussed inside of the manual and then didn't follow it.

[00:00:15] Speaker 02:
But how can you call the manual a substantive rule of law or a substantive provision when we said in Gray that they're not, at least for purposes of review?

[00:00:29] Speaker 01:
In Gray and in DAV, those were direct rule challenges.

[00:00:33] Speaker 01:
It was a different context than this.

[00:00:35] Speaker 01:
Gray, at least in our reading of it, Gray and DAV leave the door open for precisely this kind of challenge, that it is a substantive rule.

[00:00:43] Speaker 01:
This does have the force and effect of law.

[00:00:46] Speaker 01:
It's different than what the court found to be interpretive rules in DAV and in Gray

[00:00:52] Speaker 01:
Because both of those provisions were interpreting existing regulations and statutes and were found to be interpretive.

[00:01:00] Speaker 01:
We're arguing in this case that it's different.

[00:01:02] Speaker 01:
Because there's nothing on point for Thailand veterans and because this is VA's stated policy, not only in the M21 but in the other places cited in our pleadings, that this is VA's policy on the matter.

[00:01:14] Speaker 01:
And because it creates a substantive right, the M21 does in fact control here and does bind VA.

[00:01:22] Speaker 01:
There does not seem to be any contention, and I don't want to put words in V's mouth, but I'm not reading any contention that VA adjudicators at the regional office level are bound by the M21.

[00:01:35] Speaker 01:
And because it is a substantive rule, the board should be so bound as well, just because it's found in the M21.

[00:01:43] Speaker 02:
But I thought you conceded in your brief that it doesn't bind the board.

[00:01:49] Speaker 01:
The M21 writ large.

[00:01:51] Speaker 01:
does not bind the Board of Veterans' Appeals.

[00:01:54] Speaker 01:
But a substantive rule can still be found.

[00:02:00] Speaker 01:
It can still be found in the M21.

[00:02:02] Speaker 01:
It can be placed in there.

[00:02:03] Speaker 01:
The M21, DAV and Gray stand for the proposition that the M21 doesn't bind the board, and that's based on some regulatory authority.

[00:02:11] Speaker 00:
The rationale of it does, even though the manual doesn't itself bind.

[00:02:18] Speaker 00:
Where does the binding nature

[00:02:22] Speaker 01:
I'm sorry, Your Honor.

[00:02:24] Speaker 01:
The fact that this is a substantive rule, the fact that this is VA's policy, pronouncement, because this is the only place where it's found.

[00:02:33] Speaker 00:
The policy is embraced in the rule, right?

[00:02:37] Speaker 01:
I'm sorry, Your Honor.

[00:02:38] Speaker 00:
The policy is embraced in the terms of the manual, the presumption that's created the manual?

[00:02:45] Speaker 01:
Essentially, yes.

[00:02:46] Speaker 01:
It's not quite a presumption.

[00:02:48] Speaker 00:
Um, it doesn't matter.

[00:02:49] Speaker 00:
Doesn't, doesn't the presumption created a manual deal with having been assigned to duty at the perimeter?

[00:02:56] Speaker 01:
It does.

[00:02:57] Speaker 00:
It, it, it follows through the, wasn't there a fact finding that your client wasn't assigned to duty at the perimeter?

[00:03:03] Speaker 01:
There, that was not that, that fact finding, uh, I don't, I don't believe so.

[00:03:11] Speaker 01:
Your honor, the facts in the case.

[00:03:12] Speaker 00:
I thought the facts were that your, your, your client was.

[00:03:16] Speaker 00:
at the perimeter walking around or from time to time, but his assignment, his duty assignment station was that he was not assigned at the perimeter.

[00:03:26] Speaker 01:
And that's the nub of the case, Your Honor.

[00:03:28] Speaker 01:
That's the heart of the case.

[00:03:29] Speaker 00:
That was a fact-finding that he was not assigned the border.

[00:03:32] Speaker 00:
In order to earn the presumption under the manual, you'd have to be assigned at the perimeter.

[00:03:38] Speaker 01:
But that's not what the Veterans Court found.

[00:03:39] Speaker 01:
The Veterans Court found him competent and credible to place himself on the perimeter and under the provisions of the... Placing him physically being at the perimeter as opposed to assigned to duty.

[00:03:48] Speaker 00:
Presumably some people were assigned to patrol the perimeter or to go out and spray the weeds at the perimeter or whatever.

[00:03:55] Speaker 01:
Yes, Your Honor.

[00:03:57] Speaker 01:
That's all found in the M-21, but the M-21 is more than that.

[00:04:00] Speaker 01:
The M-21 provision says that on a facts found basis, if a Thailand veteran puts himself on the perimeter,

[00:04:07] Speaker 01:
which Mr. Hudick did.

[00:04:08] Speaker 00:
OK.

[00:04:09] Speaker 00:
So another fact that stuck in my mind was the fact finding that none of the relevant chemicals were ever present at this base at the time your client was assigned there.

[00:04:24] Speaker 01:
Your honor is referencing the archivist's report from 2014.

[00:04:27] Speaker 00:
And that was the nub of the archivist's report, correct?

[00:04:31] Speaker 01:
The archivist's report does have a sentence in there in his email that says that herbicides were not sprayed at U-Dorn until 1969, which post-tates when Mr. Hudick was there.

[00:04:40] Speaker 01:
However, that's contrary to VA's policy.

[00:04:42] Speaker 01:
VA's stated instruction in the M21 concedes herbicides.

[00:04:46] Speaker 02:
What do you mean?

[00:04:47] Speaker 02:
I see.

[00:04:48] Speaker 01:
It concedes herbicides were used.

[00:04:49] Speaker 02:
So the manual starts at 1961.

[00:04:51] Speaker 01:
I'm sorry, Your Honor.

[00:04:52] Speaker 02:
The manual starts at 1961.

[00:04:53] Speaker 01:
Yes.

[00:04:54] Speaker 01:
It contemplates the entire Vietnam era, which does cover Mr. Hueter.

[00:04:57] Speaker 02:
So as I understand it, the dispute here is not whether he would fall within the terms of the manual, but whether the manual is binding on the VA or on the board.

[00:05:11] Speaker 01:
The dispute is, yes, Your Honor, he unquestionably falls under the manual.

[00:05:15] Speaker 01:
That is what we are saying.

[00:05:17] Speaker 01:
and that the manual does, it binds the board, or at the very least, Your Honor, it binds the adjudicators at the regional office level, of which, again, I don't believe there is a dispute.

[00:05:27] Speaker 01:
And if it binds the adjudicators, it puts Thailand veterans into a bit of a bind because the only place that VA has announced the policy of how they're going to really deal with Thailand veterans is in this M21 provision on its website consistent with the Chico report.

[00:05:45] Speaker 01:
And because that's the only place, and because it does, again, Your Honor, as we say in our briefs, satisfy the test laid out for what constitutes a substantive rule, it should bind the board.

[00:05:55] Speaker 02:
And it constitutes a substantive rule because it's the only place, this is the only place that the policy of the VA as to how they're going to treat these veterans is set forth.

[00:06:12] Speaker 01:
I would say that's the strongest point for it being a substantive rule.

[00:06:16] Speaker 02:
All right, what other points are there?

[00:06:17] Speaker 01:
Well, going through the agency, the three-part test contemplates the agency's characterization of the action, whether it's contemplated in the federal regulations and whether it has binding effects.

[00:06:30] Speaker 01:
To Your Honor's point, it all stems from that, from the fact that this is the only place where it is announced.

[00:06:35] Speaker 01:
But it does bind.

[00:06:37] Speaker 01:
And the fact that step one is irrelevant because it's not published in the federal register, but that's not fatal to the test.

[00:06:44] Speaker 03:
Just to be clear, is your view that if the manual is binding, there are no remaining questions raised by the government?

[00:06:58] Speaker 01:
Well, my view is that the government, in fairness, the government tried to throw this into a waning of evidence type of question, but that's not how... Right.

[00:07:10] Speaker 03:
Yes.

[00:07:11] Speaker 03:
That is pervasive in the argument.

[00:07:14] Speaker 01:
Right.

[00:07:15] Speaker 01:
And I know that they will speak more to that.

[00:07:18] Speaker 01:
But this is not a wang of the evidence case, because the substantive rule, as Judge O'Malley points out, is the only place where the Thailand provisions are found and should be the end of the matter.

[00:07:31] Speaker 01:
There should not have been this further development.

[00:07:36] Speaker 01:
Once he met the M21's requirements, which he does when he credibly placed himself in Thailand during the relevant time period, that should have been the end of the matter.

[00:07:44] Speaker 01:
That's our contention.

[00:07:44] Speaker 01:
Yes, your honor.

[00:07:49] Speaker 03:
Okay.

[00:07:50] Speaker 03:
Well, let's hear from the government and we'll save you remaining time.

[00:07:52] Speaker 03:
Thank you, your honor.

[00:08:01] Speaker 04:
Mr. Yale.

[00:08:03] Speaker 04:
May it please the court.

[00:08:05] Speaker 04:
First, I'd like to address the issue of whether or not this is a substantive rule.

[00:08:10] Speaker 04:
There's really no daylight between

[00:08:12] Speaker 04:
The provision here and the provisions in DAV are gray.

[00:08:16] Speaker 04:
When you go through the three-part test, it's the same analysis.

[00:08:20] Speaker 04:
The VA's characterization of this manual provision has always been that it's not binding.

[00:08:27] Speaker 04:
There is never a notice and comment here.

[00:08:30] Speaker 03:
What's the point of such a rule if no one need follow it?

[00:08:35] Speaker 04:
Well, it's essentially a factual shortcut for the initial agency decision makers.

[00:08:41] Speaker 04:
It's informal guidance to those decision makers when they're getting claims in that they can look at this manual provision and see that, for example, if you held certain positions on these Thailand Air Force bases, that the government should concede exposure.

[00:08:59] Speaker 04:
But we think that DAV and Gray

[00:09:02] Speaker 04:
are very similar in terms of the analysis as to whether or not this is a substantive rule.

[00:09:08] Speaker 02:
Well, part of my problem is that with DAV and Gray, the government argued it's not a substantive rule for purposes of saying you can't challenge it, you can't challenge the rule on its face and said, but

[00:09:24] Speaker 02:
It's okay, because if there's any concerns about the rule or the application of the rule, that can be addressed in an individual case when the manual is actually applied to an individual.

[00:09:36] Speaker 02:
So that's what we have now.

[00:09:37] Speaker 04:
Sure.

[00:09:38] Speaker 04:
Sure.

[00:09:38] Speaker 04:
Your honor.

[00:09:38] Speaker 04:
Well, you can make a 72-92 challenge to a particular portion of the manual, but here the petitioner is not saying that

[00:09:50] Speaker 04:
We should strike this rule as being contrary to law, this provision.

[00:09:55] Speaker 04:
In fact, that would not help Mr. Hudick in this case.

[00:09:58] Speaker 04:
What he's saying is that we're okay with the manual provision for Thailand veterans.

[00:10:03] Speaker 04:
We just want the VA to be applying it in a manner more favorable to Mr. Hudick.

[00:10:09] Speaker 02:
In a manner that is consistent with it on its face.

[00:10:14] Speaker 02:
That's not what he's saying.

[00:10:15] Speaker 02:
He's not saying I want a better version of the manual.

[00:10:18] Speaker 02:
He's saying I want the manual.

[00:10:20] Speaker 04:
Correct, which goes back to that involves the weighing of evidence.

[00:10:25] Speaker 02:
As we lay down our brief... You didn't argue that he didn't fit within the bounds of the manual.

[00:10:33] Speaker 04:
We did in fact argue that.

[00:10:35] Speaker 04:
We argued that the VA followed the manual.

[00:10:39] Speaker 04:
Even though it's non-binding, the VA followed the manual provisions and it found that he didn't hold the positions of dog handler, security,

[00:10:48] Speaker 02:
But it found that there was, in fact, credible evidence that he served at the perimeter.

[00:10:55] Speaker 04:
Well, the VA actually found that the evidence and the board looked at it and found that actually when you weighed all of the evidence, the evidence, the lay evidence was outweighed by other evidence, including the records finding that Mr. Hudick did not have his duties regularly served on the base perimeter.

[00:11:18] Speaker 04:
As well as the factual finding concerning herbicide exposure, that there was no spraying of herbicides.

[00:11:25] Speaker 02:
Well, that part on its face is inconsistent with the manual, right?

[00:11:29] Speaker 04:
Well, correct.

[00:11:32] Speaker 02:
I mean, the manual says 1961 to 1974.

[00:11:35] Speaker 04:
But it's not inconsistent in that there was uncertainty as to whether throughout all of those bases there was spraying on a particular base.

[00:11:46] Speaker 04:
And so when you go through the manual... Well, that's what the whole purpose of a presumption is, right?

[00:11:53] Speaker 04:
Well, that is correct if there was a statutory presumption or a presumption based upon a regulation.

[00:11:59] Speaker 04:
That's not what this is.

[00:12:00] Speaker 04:
This is based on direct service connection.

[00:12:02] Speaker 04:
It's trying to get to the point of whether or not a veteran was exposed to herbicides.

[00:12:08] Speaker 02:
And the manual provisions, while... We can debate whether the manuals bind.

[00:12:13] Speaker 02:
What I'm having a problem with is when you tell me that 1961 to 1974 is presumed covered, and now you say, but you know what, we only have to start it at 69, and that that's somehow consistent with the manual.

[00:12:30] Speaker 02:
That's my problem.

[00:12:31] Speaker 02:
I think we can debate whether the manual is binding.

[00:12:34] Speaker 02:
But the manual says what it says.

[00:12:37] Speaker 04:
Correct.

[00:12:37] Speaker 04:
The manual says what it says.

[00:12:38] Speaker 04:
But again, as we point out in our briefs, if you follow through the manual questions,

[00:12:43] Speaker 04:
If you don't hold these certain positions, and if the evidence demonstrates that you didn't have regular duty on the perimeter, you then go to additional questions, which is what actually happened here.

[00:12:54] Speaker 04:
They reached out to the record center, and the record center provided records regarding these issues.

[00:13:05] Speaker 04:
If you look at, for example, Joint Appendix 100 and 101,

[00:13:12] Speaker 04:
record center provided facts, and that's based upon the fact that while the manual was not binding on the board, the VA still followed the provisions of the manual, and the board in its analysis, in its opinion, still went through the analysis there.

[00:13:29] Speaker 04:
So even if for some reason the court were to find that the provision is binding, which there's a regulation saying these manual persons are not binding, the VA has never treated this as binding,

[00:13:42] Speaker 04:
There still was no error here.

[00:13:46] Speaker 04:
And so even... I'm still having a hard time.

[00:13:50] Speaker 02:
The board found his evidence of service near the perimeter to be credible, correct?

[00:13:59] Speaker 02:
Correct.

[00:14:00] Speaker 02:
And the manual says, if credible evidence establishes service near the perimeter during this entire time frame, then we presume exposure, period.

[00:14:10] Speaker 02:
So why are we going

[00:14:12] Speaker 02:
to these other sources of data, if the manual says, don't do it.

[00:14:16] Speaker 04:
Well, because I don't think the manual says, as long as you have one credible piece of evidence, you automatically stop there.

[00:14:23] Speaker 04:
They were weighing all of the evidence of record.

[00:14:26] Speaker 04:
And that's consistent with the VA's.

[00:14:30] Speaker 00:
In terms of the weighing of that evidence, what happens to your case if we take the fact that the herbicides weren't found there until 69, if we take that fact out?

[00:14:43] Speaker 04:
Well, I mean, we... So that disappeared.

[00:14:46] Speaker 00:
Well, I think it gets to the same... It's still weighing on the evidence because... What then would there be in the record to show that the RO and the BVA properly applying the regulation came to the correct conclusion?

[00:15:04] Speaker 04:
Well, because they went back and the Joint Records Office looked at it and found that

[00:15:09] Speaker 04:
The records demonstrated that Mr. Hudick's position did not have him regularly operating on the perimeter.

[00:15:17] Speaker 04:
The only piece of evidence.

[00:15:18] Speaker 02:
What if we don't go to step two?

[00:15:19] Speaker 02:
Because it sure looks like step one is supposed to be the end of the inquiry.

[00:15:23] Speaker 02:
So what if we conclude that going to step two was neither appropriate nor necessary?

[00:15:29] Speaker 02:
So that the manual says what it says, he falls within the bounds of the manual, and relying on evidence to undercut the manual itself,

[00:15:39] Speaker 04:
doesn't isn't consistent with the manual so then where are you well even if there is error there i mean this is the va this is the board who is looking at it de novo and even if there was an error there it would be an error in applying a non-binding uh provision so then does that but does the manual bind the bind the regional adjudicators well i i think they are

[00:16:05] Speaker 04:
supposed to follow the manual provisions.

[00:16:07] Speaker 02:
So why wouldn't the board then remand to the RO to apply the manual?

[00:16:15] Speaker 04:
Well, again, I mean, I don't think, as I stated before, I mean, the manual is non-binding.

[00:16:23] Speaker 02:
So it's binding on the adjudicators.

[00:16:27] Speaker 04:
Well, the initial adjudicators, this is a manual of informal guidance for the VA.

[00:16:32] Speaker 04:
Factual shortcuts, for example here, to see whether or not an individual is exposed to herbicides.

[00:16:40] Speaker 02:
But to basically just give clarity and say we're not going to require all this other digging and all this other evidence if there is a presumption, right?

[00:16:50] Speaker 04:
Well, it's a factual shortcut to see whether or not the veteran has demonstrated exposure to herbicides.

[00:16:59] Speaker 04:
But the VA has never meant these provisions to bind the board or bind any tribunals.

[00:17:08] Speaker 04:
I mean, that came up in gray, I believe, as well.

[00:17:11] Speaker 04:
It's never meant to bind the VA when it goes forward

[00:17:15] Speaker 02:
Uh, in anything, in any sort of, uh, I guess what I'm having trouble with is if the adjudicators are bound by it, how could the board say that their adjudication was correct based on the procedures they're supposed to follow?

[00:17:32] Speaker 04:
Well, I guess, uh, as I mentioned before, I mean, I think that the, it's informal guidance that they're supposed to follow it, but if they don't follow it,

[00:17:42] Speaker 04:
Based upon 38 CFR 19.5, it's not binding on the board.

[00:17:48] Speaker 04:
I think in Gray and the DAV decisions, it's been found that these manual provisions were never intended to bind anyone in terms of other tribunals.

[00:18:03] Speaker 04:
And that's part of the reason why they were found not to be substantive rules.

[00:18:09] Speaker 04:
I mean, those were essentially the holdings in those cases.

[00:18:12] Speaker 04:
And part of the rationale was it was only supposed to be guidance for the informal decision makers.

[00:18:18] Speaker 04:
And if there is an error there, if an initial agency decision maker reached the wrong conclusion, it could go to the board here.

[00:18:30] Speaker 02:
There's a bill pending in Congress that would say that the VA is going to give presumptions to anybody who worked

[00:18:38] Speaker 02:
in Thailand during the Vietnam era, it needs to give a presumption to everybody who was in Thailand during the Vietnam era.

[00:18:47] Speaker 02:
And the VA has opposed that.

[00:18:50] Speaker 02:
Is that right?

[00:18:51] Speaker 04:
Well, Your Honor, I actually have heard of the bill.

[00:18:57] Speaker 04:
I don't have knowledge whether or not VA has opposed that or not.

[00:19:00] Speaker 04:
I would say that part of VA's policies on both aid

[00:19:07] Speaker 04:
herbicide exposure and spraying is to find what the scientific evidence demonstrates.

[00:19:17] Speaker 02:
So in other words, this manual was adopted.

[00:19:21] Speaker 02:
The VA is saying, we're not going to require all of that.

[00:19:26] Speaker 02:
We're not going to look into it.

[00:19:28] Speaker 02:
We're not going to require the veteran to do it.

[00:19:30] Speaker 02:
But now the VA has changed its mind and wants to be stricter.

[00:19:35] Speaker 02:
I mean, why not

[00:19:36] Speaker 02:
Pull the manual.

[00:19:38] Speaker 02:
Why not rewrite the manual rather than just say, we don't follow the manual?

[00:19:43] Speaker 04:
Well, I mean, if, for example, this was found to be a substantive rule, I guess there's an argument that the manual provision did not go through notice and comment rulemaking.

[00:19:53] Speaker 04:
And then the, you know, the provision would, I would think, be struck.

[00:19:58] Speaker 04:
But again, that would not help Mr. Hudick in this case, because then you would just go back to whether or not he can demonstrate

[00:20:05] Speaker 04:
exposure to herbicides on a direct basis.

[00:20:08] Speaker 04:
So he really has to be relying upon this manual provision, because there's nothing else that he's been pointing to.

[00:20:16] Speaker 04:
I know in his briefs he pointed to the Dioxin Act, but that clearly on its face does not cover individuals who served in Thailand.

[00:20:25] Speaker 02:
And why wouldn't veterans feel that they could rely on a manual that on its face covers their circumstances?

[00:20:35] Speaker 04:
Part of it could be if to the extent veterans have representation or there's been several cases that have said that it was never supposed to have the binding effect of law on it.

[00:20:51] Speaker 00:
If you take a case in which there's no question about the veterans satisfying the precise requirements of the manual,

[00:21:00] Speaker 00:
And it would seem to me that in the past, a veteran who showed up at their RO and said, I was assigned at the perimeter, et cetera, et cetera, et cetera, that he got relief.

[00:21:12] Speaker 00:
The RO is doing this job, and it is supposed to apply the manual.

[00:21:19] Speaker 00:
And a person shows up who squarely, no question about it, no question about whether he was properly assigned.

[00:21:27] Speaker 00:
you would assume that the RO would grant the benefit that was being requested.

[00:21:31] Speaker 00:
I mean, at least you get the service connection, right?

[00:21:34] Speaker 04:
That's correct, Your Honor, and I think that happens in many cases.

[00:21:38] Speaker 00:
There's a class of veterans out there, putatively at least, who have marched to the RO, walked in, been told by the RO that there is this manual, because that's the job of the RO, is to be veteran friendly, and said, oh yes, you get the presumption of service connection.

[00:21:57] Speaker 00:
Well, and then you take this case comes along and this veteran comes in and goes through that procedure and there's some question about whether or not he was served at the perimeter.

[00:22:07] Speaker 00:
That seemed to be the only, isn't that the only question about his satisfying the terms of the manual?

[00:22:15] Speaker 04:
Well, no, because as to the first question, that's correct.

[00:22:22] Speaker 04:
It was, he clearly did not meet, he was not a dog handler, he was not in security.

[00:22:27] Speaker 00:
That's why I want to walk through.

[00:22:28] Speaker 00:
So he comes into the RO and the RO would say, ask some questions.

[00:22:34] Speaker 00:
And in this case, they would deny him his service connection because he wasn't, his duty assignment wasn't to patrol the perimeter.

[00:22:43] Speaker 00:
As well as there's... I just want to nail that down.

[00:22:46] Speaker 04:
Sure.

[00:22:47] Speaker 00:
Would there have been any other ground on which his application would have been denied?

[00:22:52] Speaker 04:
There's a general category, so he clearly doesn't meet the positions, but there's a general category if he can show that his duty was regularly on the perimeter of this Air Force base, which is, I think, what a lot of the dispute here is.

[00:23:06] Speaker 00:
There's no dispute whether or not... I just want to nail down the perimeter, if there's anything other than the perimeter.

[00:23:11] Speaker 00:
That would disqualify him for the presumption at the RO.

[00:23:15] Speaker 04:
At the RO stage, if he had demonstrated that he had regularly served on the perimeter... No, I don't want to take the perimeter out, I want to ask.

[00:23:22] Speaker 00:
Is there something else, like he had to wear blue clothes, or he had to be there two hours, or some other totally different job?

[00:23:30] Speaker 04:
Well, there's obviously the time period which he met.

[00:23:34] Speaker 04:
But as for that first prong, no, you're correct.

[00:23:38] Speaker 00:
The reason why I'm asking this is that there is, as I understand it, the BVA gave credit to his testimony that he was at the perimeter.

[00:23:48] Speaker 04:
The board found him competent to say that he was at the perimeter.

[00:23:52] Speaker 02:
Not just competent, credible.

[00:23:54] Speaker 04:
OK, correct.

[00:23:55] Speaker 04:
And then they looked at other evidence, and they weighed all of the evidence of the record.

[00:24:00] Speaker 00:
I don't want to talk about that other evidence.

[00:24:04] Speaker 00:
See, the other evidence you're going to talk about is that, well, there were no chemicals there until 69.

[00:24:08] Speaker 00:
I'm going to take that totally out of the equation.

[00:24:12] Speaker 00:
What I want to know is whether there's any other factual data point against the veteran, other than the fact that he didn't have the service at the perimeter to satisfy the... Sure.

[00:24:22] Speaker 04:
The other factual data point was not specifically on, I guess... I think they looked at the unit records to determine where

[00:24:32] Speaker 04:
sort of on the base these individuals were, and they didn't find that they were regularly on the perimeter in his unit.

[00:24:40] Speaker 04:
And they also found... Right.

[00:24:41] Speaker 00:
But then what I want to come back to, this sort of begins to turn on the quality or the weight that's given by the BVA and by us in assessing the fairness of the adjudication to the veteran's testimony that he was at the perimeter.

[00:25:00] Speaker 00:
And so that seems to me that that's an adjudicatory fact at the BVA that seems to be overriding the opinion of the RO on the placement at the perimeter issue.

[00:25:15] Speaker 00:
Am I wrong?

[00:25:17] Speaker 04:
Well, I'm not sure that you're wrong, but I also don't think that this court under 7292 can really go back through and reweigh the evidence as found by the board.

[00:25:26] Speaker 02:
Let me ask you something.

[00:25:29] Speaker 02:
Whether the policy was formal or informal or binding or not, does that matter for due process purposes?

[00:25:38] Speaker 04:
I would think it would matter.

[00:25:40] Speaker 04:
I'm not sure how an agency not following a non-binding provision could be a due process violation.

[00:25:50] Speaker 04:
And I might add, as we lay down our briefs, we do think that the VA actually went through and followed the policy.

[00:25:58] Speaker 04:
But you have the board as well as the veterans court who can look at these issues.

[00:26:04] Speaker 04:
And due process only really requires notice and an opportunity to be heard.

[00:26:08] Speaker 04:
I mean, Mr. Hudick has had an opportunity to be heard on these issues.

[00:26:12] Speaker 03:
You want us to say as a matter of law, as a matter of judicial ruling, the secretary, the VA can ignore in its procedures at whatever stage, whatever it states in the manual.

[00:26:29] Speaker 04:
Well, I think under a 72-92 challenge, you have to look at the particular manual provisions.

[00:26:36] Speaker 03:
The answer is yes.

[00:26:37] Speaker 03:
We tell the world that the secretary is, the VA is not bound by what it states is its policy.

[00:26:46] Speaker 03:
Forget it.

[00:26:47] Speaker 04:
Well, I wouldn't exactly put it that way, but I take your point.

[00:26:50] Speaker 03:
But isn't that where you were taking us?

[00:26:52] Speaker 03:
Either it's binding or it isn't.

[00:26:55] Speaker 04:
Well, I think in DAV and Gray, they certainly said that these provisions are not binding.

[00:27:01] Speaker 04:
And I think that there's a regulation stating that they're not binding.

[00:27:04] Speaker 02:
We didn't say they're not binding.

[00:27:06] Speaker 02:
We said the VA claims they're not binding.

[00:27:10] Speaker 02:
And we said, in those circumstances, you can't do a pre-application challenge to those provisions.

[00:27:17] Speaker 02:
But we never said what the implication of the VA's

[00:27:21] Speaker 02:
position on it being non-binding was other than for that purpose.

[00:27:26] Speaker 04:
Sure, and I think in those cases as well, there has been left open the possibility of individual 7292 challenges to a particular manual provision.

[00:27:40] Speaker 04:
And to the extent that the VA has implemented a manual provision and refuses

[00:27:50] Speaker 04:
and refuses to follow it.

[00:27:52] Speaker 04:
And for example, that violates a statute.

[00:27:56] Speaker 04:
Say, for example, it actually violated the Dioxin Act.

[00:28:00] Speaker 04:
I mean, there could be a 7292 challenge in essentially striking that manual provision as violating the Constitution or violating another statute.

[00:28:11] Speaker 04:
But that's not, again, that's not what we have here.

[00:28:13] Speaker 02:
But the VA is not going to challenge its own manual.

[00:28:16] Speaker 02:
So you're saying is if the manual really is inconsistent with a statute,

[00:28:21] Speaker 02:
then a veteran can challenge it.

[00:28:24] Speaker 02:
But the real question here is, assuming that no veteran wants to challenge it, what the veteran actually wants to do is get the benefit of it.

[00:28:33] Speaker 02:
But you're saying that in those cases, there's no way to say that the VA should actually, even as a matter of procedural fairness, follow its own policy.

[00:28:44] Speaker 04:
Well, again, because at least for this manual provision and the ones in DAV and Gray,

[00:28:51] Speaker 04:
I mean, they are non-binding.

[00:28:53] Speaker 04:
I mean, there's ways to get at a Thailand presumption for veterans.

[00:28:57] Speaker 04:
Congress can, for example, implement a new statute.

[00:29:01] Speaker 02:
So why did the VA establish this presumption, Thailand presumption for veterans?

[00:29:06] Speaker 02:
I mean, the whole point was that Congress was too slow in doing it and that the VA, which is veteran friendly, felt that they should just go ahead and create one.

[00:29:17] Speaker 02:
And they did.

[00:29:18] Speaker 02:
So then you create one, but you don't apply it.

[00:29:21] Speaker 04:
Well, again, I think we dispute that it was not applying this case, but it was created because they were receiving many applications from veterans who served in Thailand.

[00:29:33] Speaker 04:
And so they implemented this manual provision as informal guidance for the initial decision makers because they were receiving so many applications in for benefits.

[00:29:47] Speaker 04:
So that's, I think, and they were trying to get at, with the manual provisions, where dioxin and those chemicals are sprayed.

[00:29:57] Speaker 00:
We have a line of cases, I think, that say that a misapplication of regulation is itself a question of law.

[00:30:07] Speaker 00:
Those cases came up.

[00:30:08] Speaker 00:
We have this problem that you referred to earlier that we can't review a factual determinant.

[00:30:14] Speaker 00:
But isn't this a case in which we could decide that there was, if we decide that the manual has some applicability to the decision of this case and that it was the guiding light for the IRO and that the BVA was actually looking at this case as to whether or not there was satisfaction of the manual's requirements.

[00:30:40] Speaker 00:
And we conclude that there was a misapplication of that rule by the BVA in its decision that this gentleman wasn't entitled to the benefit of the regulation.

[00:30:56] Speaker 04:
There are a lot of cases involving misapplication.

[00:30:59] Speaker 00:
What came to me in the way of the argument, when I quickly looked back at how the CAVC was looking at this decision, it did begin to look like

[00:31:09] Speaker 00:
There was a question of trying to decide whether this veteran had satisfied the requirements of the manual.

[00:31:16] Speaker 00:
Oh, correct.

[00:31:16] Speaker 00:
If he had, he would win.

[00:31:18] Speaker 00:
And it seemed to me that as a result of our discussion here today, if the fact that the chemicals weren't put on the ground until 69 or whatever well after the date of the manual's applicability, if that fact comes off the record, all that's left

[00:31:36] Speaker 00:
seemed to be whether or not this veteran was at the perimeter.

[00:31:41] Speaker 00:
And if he was at the perimeter, he would win.

[00:31:44] Speaker 00:
Under the manual, which when he lied the question, the difficult question for us as to whether or not this manual is binding, all of the decision makers here treated the manual as something under which this veteran would prevail had he satisfied the terms and conditions of the manual.

[00:32:05] Speaker 00:
You've in essence said that yourself, haven't you?

[00:32:09] Speaker 00:
That's the way this case was served up.

[00:32:15] Speaker 00:
This case wasn't served up as a binding regulation that binds.

[00:32:21] Speaker 00:
That whole question that we've been deciding here is in the ether as we look at the problem.

[00:32:27] Speaker 00:
I'm looking at what was actually happened in this case.

[00:32:31] Speaker 00:
The veteran went to the RO, asked for relief, must have been told that there was a manual presumptive coverage that he might or might not be entitled to.

[00:32:42] Speaker 00:
And there's only seems to be one data point on which he failed.

[00:32:47] Speaker 00:
And if that data point is wrong, wrong, wrong, wrong,

[00:32:51] Speaker 00:
then there was a misapplication of the prevailing regulation would be an error of law, and we could review that.

[00:32:59] Speaker 04:
But with all due respect, what is the regulation that we're reviewing?

[00:33:05] Speaker 04:
This non-binding manual provision?

[00:33:07] Speaker 00:
Well, it's a process that, at least for purposes of this case, which is what we're trying to decide in this exact case, not larger case, for purposes of this case,

[00:33:18] Speaker 00:
the agency chose to strap the manual on its own back.

[00:33:25] Speaker 00:
You've said that.

[00:33:26] Speaker 00:
You said this is a question of whether or not he satisfied the manual, and the facts show he didn't satisfy the manual.

[00:33:32] Speaker 04:
Well, I mean, I think we made other arguments in this case.

[00:33:36] Speaker 00:
I understand that.

[00:33:36] Speaker 00:
But I mean, the purpose of the oral argument is to sort of bore down and find out if there is a reversible error.

[00:33:44] Speaker 04:
Correct.

[00:33:45] Speaker 04:
And again, I think when it comes down to it,

[00:33:48] Speaker 04:
even if you get into the manual provision, it's really a weighing of the evidence.

[00:33:55] Speaker 04:
The board in its decision said that these facts were established, that he did not have regular service on the perimeter.

[00:34:04] Speaker 04:
I mean, I take it that there is a disagreement with that, but I'm not sure how the court gets around that fact as well as the fact of when this entire provision is trying to get at

[00:34:18] Speaker 04:
who was exposed, which veterans were exposed to herbicides, and research was done finding that they were not used on these bases until 1969.

[00:34:28] Speaker 04:
I mean, what may be coming out is that the manual provisions are over-inclusive and may be providing benefits to more veterans than perhaps the science shows, but that

[00:34:45] Speaker 04:
doesn't really change the issue here, as applies to Mr. Hudak.

[00:34:50] Speaker 03:
I think we have the position.

[00:34:52] Speaker 03:
Can we move on?

[00:34:54] Speaker 03:
Thank you, Your Honor.

[00:34:55] Speaker 03:
Thank you, Mr. Hale.

[00:35:04] Speaker 03:
This is Jones.

[00:35:05] Speaker 03:
Thank you, Your Honor.

[00:35:09] Speaker 02:
Can you address the question of being at the perimeter?

[00:35:15] Speaker 02:
Now the manual just says other credible evidence.

[00:35:18] Speaker 02:
You say the board found his evidence credible.

[00:35:23] Speaker 02:
But the government argues that there was contrary evidence, and so the board had to weigh it.

[00:35:31] Speaker 02:
And so he didn't really have other credible evidence, I guess, is their point.

[00:35:39] Speaker 01:
There's no question that he was on the perimeter.

[00:35:43] Speaker 01:
because he credibly and competently placed himself there.

[00:35:48] Speaker 01:
I think that the, to Judge Clevenger's point.

[00:35:51] Speaker 02:
But did the board, is that the conclusion the board made?

[00:35:54] Speaker 02:
I know they said he was credible.

[00:35:57] Speaker 01:
I know, Your Honor, that when the board found him competent and credible to place himself at the perimeter, that's when he met all the requirements of the M21 provision.

[00:36:07] Speaker 00:
The discussion of it, what's the,

[00:36:12] Speaker 00:
manual specifically say about at the border?

[00:36:17] Speaker 00:
You know, the language there in front of you?

[00:36:18] Speaker 01:
I do have the M-21 right in front of me, Your Honor.

[00:36:20] Speaker 00:
What's it say about the border?

[00:36:23] Speaker 01:
So it's as my opposing counsel pointed out, this factual shortcut, which I think strengthens Mr. Hudick's case, because this is what the military should do.

[00:36:31] Speaker 01:
And that's how it's laid out.

[00:36:32] Speaker 01:
So step one, did the veterans serve in the Air Force in Thailand during the Vietnam era?

[00:36:38] Speaker 01:
Yes, he did.

[00:36:39] Speaker 01:
Did he serve at one of the following Royal Thai Air Force bases?

[00:36:42] Speaker 01:
on the list as U-Dorn, he did.

[00:36:43] Speaker 01:
As an Air Force security policeman, no.

[00:36:47] Speaker 01:
Was he a dog handler?

[00:36:48] Speaker 01:
No.

[00:36:48] Speaker 01:
Was he a member of a police squadron?

[00:36:49] Speaker 01:
No, he was not.

[00:36:50] Speaker 01:
Those are things that the board, I believe, did take into consideration.

[00:36:53] Speaker 01:
But otherwise, near the base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, he credibly placed himself on the perimeter.

[00:37:06] Speaker 01:
If yes, which he did,

[00:37:08] Speaker 01:
concede herbicide exposure on a direct facts found basis.

[00:37:12] Speaker 02:
I guess my question is, at this other credible evidence stage, can you weigh his credible evidence against other evidence?

[00:37:24] Speaker 02:
Or do you have to just stop the minute you have some credible evidence?

[00:37:28] Speaker 01:
Once he puts himself in the end, and that's what 1154A speaks to.

[00:37:32] Speaker 00:
Well, doesn't the word or answer that question?

[00:37:36] Speaker 00:
If you say,

[00:37:37] Speaker 00:
So that's why I want you to read the business about service as shown by his bill of assignments, et cetera, because the military gets very specific assignments, right?

[00:37:48] Speaker 00:
Yes.

[00:37:49] Speaker 00:
And so in this particular case, there were no specific assignments saying he had to go to the border.

[00:37:55] Speaker 00:
Yes.

[00:37:55] Speaker 00:
But it says his border presence can be shown by A, B, C, or D.

[00:38:04] Speaker 00:
Yes, Your Honor.

[00:38:05] Speaker 00:
So if it's not shown by A, B, or C, then the fact that it's not shown by A, B, or C would seem to be irrelevant if it's shown by D. Yes, Your Honor.

[00:38:16] Speaker 00:
That would seem to me to be your argument.

[00:38:18] Speaker 00:
Yes, Your Honor.

[00:38:19] Speaker 00:
And as what I said earlier, I would think you'd be arguing now that if that's the case, and the only evidence in the record about presence at the border that is going to amount to something is his,

[00:38:33] Speaker 00:
Because the fact that there was no record of A, B, or C is irrelevant if you satisfy or, then there has been a misapplication by the RO and the BVA of the law they chose to strap on themselves for purposes of deciding this case.

[00:38:49] Speaker 01:
Yes, Your Honor.

[00:38:51] Speaker 00:
And if we see the case in that perspective as served up, which seems to be the way the BVA and the CABC and the government are treating it,

[00:39:03] Speaker 00:
It elides the difficult question of whether or not the pronouncement, without notice and comment rulemaking, constitutes a binding rule of law for all cases.

[00:39:14] Speaker 00:
You don't need to decide that.

[00:39:19] Speaker 01:
Whether you need to decide that?

[00:39:20] Speaker 00:
We don't need to decide that the manual is binding under all circumstances for everybody.

[00:39:32] Speaker 01:
No, you do not need to decide that, Your Honor.

[00:39:35] Speaker 00:
Because I find that a very difficult issue, and it's a potential problem.

[00:39:38] Speaker 00:
For example, if the only time you ever heard something said was by the Assistant Secretary at a speech in California when he was trying to be generous to veterans, does that automatically become a binding rule of law?

[00:39:50] Speaker 00:
Because it was the only place that that policy was ever mentioned.

[00:39:54] Speaker 00:
It seems to me to be troubling.

[00:39:57] Speaker 01:
I understand that, Your Honor, and Your Honor can decide this on narrower grounds.

[00:40:02] Speaker 01:
Judge Ameli, I'm sorry, did that answer your question?

[00:40:04] Speaker 01:
I want to make sure that I direct it.

[00:40:06] Speaker 02:
Yes, I think so.

[00:40:09] Speaker 01:
OK.

[00:40:09] Speaker 01:
Because the manual provision amounts to something, and because Mr. Hudick does meet all the requirements that VA stated in what opposing counsel just called its factual shortcut, the Veterans Court's decision should be vacated.

[00:40:29] Speaker 03:
Any more?

[00:40:30] Speaker 03:
Any questions or more comments?

[00:40:33] Speaker 03:
Vacated?

[00:40:35] Speaker 01:
Should be.

[00:40:35] Speaker 01:
I'm sorry.

[00:40:36] Speaker 01:
The Veterans Court's.

[00:40:36] Speaker 01:
I'm sorry, Your Honor.

[00:40:37] Speaker 01:
The Veterans Court's decision should be reversed.

[00:40:39] Speaker 00:
You're not asking for another bite of the apple downstairs.

[00:40:42] Speaker 01:
No, the Veterans Court's decision should be reversed.

[00:40:44] Speaker 01:
Thank you.

[00:40:45] Speaker 03:
OK.

[00:40:47] Speaker 03:
OK.

[00:40:47] Speaker 03:
Thank you.

[00:40:49] Speaker 03:
Do you have the arguments?

[00:40:50] Speaker 03:
Thank you both.

[00:40:51] Speaker 03:
Case is taken under submission.