[00:00:00] Speaker 01:
Today, 2562 Rule vs. Wilkie.

[00:01:01] Speaker 01:
Please proceed, Mr. Carpenter.

[00:01:04] Speaker 04:
May it please the Court, Kenneth Carpenter, appearing on behalf of Theresa Rule.

[00:01:08] Speaker 04:
Also at council table is Frances Jackson, who was counseled before the Veterans Court.

[00:01:14] Speaker 04:
In this case, Your Honor, there was no explicit denial of DIC or dependency indemnity compensation benefits to Mrs. Rule made in the VA's August 10, 1984, letter, which appears at appendix

[00:01:31] Speaker 02:
or a question of fact?

[00:01:33] Speaker 04:
I believe it's a question of law, Your Honor, because it focuses on whether or not this was or wasn't, as a matter of law, an explicit denial.

[00:01:45] Speaker 04:
And an explicit denial requires notice to the veteran, or in this case, the claimant, of the action that was taken that affected benefits.

[00:01:57] Speaker 04:
the failure to make any reference whatsoever to DIC benefits precludes the finding as a matter of law.

[00:02:06] Speaker 04:
Because in order to communicate, to put Ms.

[00:02:09] Speaker 02:
Moore... I mean, I agree with you that in the ordinary sense, an explicit denial, you would think it would expressly reference the claim, the DIC claim, and then say, we're denying that.

[00:02:21] Speaker 02:
And that's not what's in that August 10 letter.

[00:02:24] Speaker 04:
That's correct.

[00:02:25] Speaker 02:
But I'm just trying to figure out

[00:02:27] Speaker 02:
whether that analysis I just did is a fact question or a legal question.

[00:02:32] Speaker 02:
And just because you say it's a matter of law, that can't be right.

[00:02:38] Speaker 02:
That still doesn't quite suffice for me to know why it's a legal question.

[00:02:44] Speaker 04:
Well, as we pointed out in our briefs, there was a specific regulation at 3.103E that required notice.

[00:02:53] Speaker 04:
And that that notice explained

[00:02:56] Speaker 04:
what they did.

[00:02:57] Speaker 04:
There is no explanation in the August 10, 1984, letter of what they did and what the board was permitted to do by the decision below.

[00:03:08] Speaker 02:
Maybe for an explicit denial as a matter of law, you have to actually identify the claim you're denying.

[00:03:15] Speaker 02:
Maybe that would be the legal battle.

[00:03:19] Speaker 01:
At least sufficient to provide notice to the veteran, right?

[00:03:22] Speaker 01:
Yes.

[00:03:22] Speaker 01:
It could have different names, different words could be used, but

[00:03:26] Speaker 01:
but it would have to be sufficient to provide notice to the veteran.

[00:03:31] Speaker 04:
That's correct, Your Honor.

[00:03:32] Speaker 03:
Isn't that an application of law to fact, though?

[00:03:35] Speaker 04:
No, I do not believe it is, Your Honor, because we are not talking about something that happened in 1984.

[00:03:41] Speaker 04:
We are talking about a retrospective judgment on the part of the board that, in the words of the board and the words of the Veterans Court, construed the language to mean something.

[00:03:55] Speaker 04:
There is no legal principle that allows the board in giving adequate notice of an explicit denial to do that by inference, to do that by suggestion.

[00:04:09] Speaker 03:
But determining whether something is an explicit denial involves fact-finding.

[00:04:17] Speaker 03:
Or that's at minimum.

[00:04:20] Speaker 03:
And maximum, it's application of law to fact.

[00:04:23] Speaker 04:
I would respectfully disagree with that analysis, Your Honor, because in this case, what we're talking about is informing Mrs. Rule about what happened.

[00:04:33] Speaker 03:
Right there, when you say informing Mrs. Rule, isn't this case really about notice and it's a constitutional issue as opposed to a question of law or fact?

[00:04:47] Speaker 03:
Are you dealing with the constitutional issue due process?

[00:04:50] Speaker 03:
whether the explicit or implicit denial provides adequate notice?

[00:04:56] Speaker 04:
I think that would be true, Your Honor, if there weren't the VA regulations that we cited in our brief, because the VA regulation at 3.103E is a regulatory obligation to provide notice.

[00:05:09] Speaker 01:
Was this in effect at the time of this letter, the burial letter?

[00:05:12] Speaker 01:
Was that regulation in effect at the time of the burial letter?

[00:05:14] Speaker 01:
Yes, it was.

[00:05:15] Speaker 01:
So your view is we can

[00:05:18] Speaker 01:
We do have authority to review interpretations of regulations by the agency.

[00:05:23] Speaker 04:
Correct.

[00:05:23] Speaker 01:
And the agency is interpreting this regulation in a way for it to suffice to provide notice even though there's no mention of the claim and nothing in the three sentence letter which would convey to any reasonable person that that claim was being resolved in that letter.

[00:05:39] Speaker 01:
and that that is really an interpretation of the regulation because it goes to what amounts to notice of the denial.

[00:05:46] Speaker 04:
That's correct, Your Honor, and I believe that same analysis applies to their regulation of 3.160 that talks about whether or not a decision has been finally adjudicated.

[00:05:58] Speaker 03:
The underlying problem for this... Is it 3.103E?

[00:06:02] Speaker 03:
Isn't that a due process regulation?

[00:06:08] Speaker 04:
It certainly is, Your Honor.

[00:06:09] Speaker 04:
But it is a regulatory due process.

[00:06:11] Speaker 03:
Why don't you better serve starting off by saying we have a constitutional issue here, as opposed to creating somewhat doubt as to whether we have the issue you're raising as one of application of law.

[00:06:25] Speaker 04:
Well, it's my understanding, Your Honor, that if a case can be resolved on the basis of regulatory or statutory obligations, then it should be resolved on those narrower issues

[00:06:37] Speaker 04:
before going to a constitutional argument.

[00:06:40] Speaker 04:
The second problem is, is no constitutional argument was raised below.

[00:06:44] Speaker 03:
So I would have to... I'm looking at it more also in terms of a jurisdictional hurdle here.

[00:06:49] Speaker 03:
If we don't have a question of law, then, you know, according to whether we have jurisdiction.

[00:06:57] Speaker 04:
And I just see this... But anyway... Well, but let me follow that up, Your Honor, with the fact that what both the Board did

[00:07:06] Speaker 04:
and the Veterans Court did by affirming what the board did was to create a rule of law that heretofore has not existed.

[00:07:14] Speaker 04:
The notion of an ability to construe language to be an explicit denial.

[00:07:21] Speaker 04:
I know of no statute or regulation within this scheme that uses that phraseology, an explicit denial.

[00:07:30] Speaker 04:
The notion of an explicit denial comes from 3.103e.

[00:07:36] Speaker 04:
where you're putting the veteran on notice so the veteran can know whether or not, in this case, she was required to appeal.

[00:07:44] Speaker 04:
And it's that failure to appeal that is the basis for preventing Mrs. Rule from getting the earlier effective date back from the mid-2000s to 1984.

[00:07:58] Speaker 01:
This letter obviously doesn't reference the DIC benefits.

[00:08:03] Speaker 01:
And in fact, the DIC benefits were part of a separate application.

[00:08:08] Speaker 01:
It's a little confusing, but I understand they become part and parcel of the pension application, whereas the burial application was different from the pension application.

[00:08:18] Speaker 01:
So this letter, which is responding to the burial application, it's not even responding to the application for which the DIC benefits would have attached.

[00:08:27] Speaker 01:
But when I read these three sentences, I guess what I walk away with is the conviction that what the government is trying to do is as a matter of law say, if we make a predicate fact finding, which we did in the burial denial, the predicate fact finding being that it wasn't due to service condition.

[00:08:44] Speaker 04:
Correct.

[00:08:44] Speaker 01:
That we have thus explicitly denied all other claims you may have filed, even though not mentioned, even though not tied to the exact same application.

[00:08:53] Speaker 01:
If those other claims require that same predicate fact, it's almost as though as a matter of law, they want to say it's enough for us to explicitly.

[00:09:02] Speaker 01:
I mean, I was horrified when I'm like, they didn't even go with implicit denial.

[00:09:05] Speaker 01:
They went with explicit.

[00:09:06] Speaker 01:
Wow.

[00:09:06] Speaker 01:
That's a lot of grandiosity right there.

[00:09:08] Speaker 01:
So what, what I was looking at was thinking to myself what the best I can figure for the government is they want a rule of law that if they make a fact finding with regard to one claim,

[00:09:21] Speaker 01:
it then isn't just going to apply as a matter of law to all claims, it's going to serve as notice that all other claims for which that fact-finding would be relevant are likewise decided, even without reference to it.

[00:09:31] Speaker 04:
And when the Veterans Court affirms... Is that a fair...?

[00:09:34] Speaker 04:
I think that is a particularly accurate and precise description of what the government's, the board's position was here, and then as affirmed by the Veterans Court, which allows something to happen

[00:09:47] Speaker 01:
without any notice whatsoever to the veterans here in no point in time i've read the record and i don't see it but perhaps uh... you know between the two of you you can tell me if there's something that's right and no point in time do i see the government arguing or the board finding implicit denial if i explicit denial correct that's correct implicit denials work it's a little confusing to me is it in fact the idea that

[00:10:16] Speaker 02:
if one claim is denied and there's a predicate fact made to deny that claim explicitly, that predicate fact is necessary for some other co-pending claim of the claimant.

[00:10:32] Speaker 02:
And so therefore, by adversely making the predicate finding in the explicit denial, you have essentially, the VA has essentially implicitly denied any co-pending claim

[00:10:46] Speaker 02:
that that adverse fact finding would control.

[00:10:49] Speaker 02:
Is that how implicit denial?

[00:10:51] Speaker 04:
That's my understanding of what implicit denial is intended to be.

[00:10:54] Speaker 02:
So then following up on Judge Moore's question, it seems to me that what the government's trying to do or the VA's trying to do is expand the implicit denial theory into explicit denials by saying any predicate fact finding made in explicitly denying one claim should

[00:11:16] Speaker 02:
be deemed as an explicit denial of any other copending claim that relies on and needs such a predicate fact.

[00:11:24] Speaker 04:
That's correct.

[00:11:25] Speaker 04:
And to just follow that up, as I understand the explicit denial rule, or excuse me, implicit denial rule, it was predicated upon there having been an explicit denial in a decision.

[00:11:39] Speaker 04:
But in this case, there was no explicit denial.

[00:11:42] Speaker 02:
Why not?

[00:11:42] Speaker 02:
I thought the claimant here was asking for a certain sum for burial reimbursement.

[00:11:50] Speaker 02:
She was.

[00:11:51] Speaker 02:
And only got 10% of that and was obviously then denied the remainder.

[00:11:57] Speaker 04:
Well, the statutory and regulatory structure for burial benefits differentiates between

[00:12:06] Speaker 04:
burial benefits provided to a person who died from a non-service condition, which was at the time Mr. Rule's circumstance.

[00:12:16] Speaker 04:
And the explanation for why the lower amount was awarded and not the higher amount was because he did not die from a service-connected condition, as was determined in 1984.

[00:12:28] Speaker 04:
And that was a correct determination.

[00:12:31] Speaker 04:
Had he died from a service-connected condition, he would have been, excuse me, she would have been entitled to a higher rate of burial benefit reimbursement.

[00:12:41] Speaker 04:
And that's found in both statute and regulation.

[00:12:45] Speaker 02:
Let me ask you another question about the implicit denial doctrine.

[00:12:50] Speaker 02:
Does the implicit denial doctrine satisfy that regulation of notice 3.103, I think, where it says,

[00:12:59] Speaker 02:
You have to be notified as to, you know, that a particular claim was adjudicated.

[00:13:05] Speaker 02:
I think necessarily the implicit denial doctrine must be premised on the idea that there is, in fact, sufficient notice even though you haven't been explicitly told that the claim has been denied.

[00:13:17] Speaker 04:
That's correct.

[00:13:18] Speaker 04:
Because the issue in both implicit denial generally, and this case specifically, was notice.

[00:13:26] Speaker 04:
And as I believe this Court said in Adams,

[00:13:29] Speaker 04:
that the fundamental function of the implicit denial rule is one of notice.

[00:13:34] Speaker 02:
Right.

[00:13:35] Speaker 02:
But here, the implicit denial doctrine has no play.

[00:13:40] Speaker 02:
It's completely out of this case.

[00:13:41] Speaker 02:
Wasn't argued, right?

[00:13:43] Speaker 04:
No.

[00:13:43] Speaker 02:
That's correct.

[00:13:43] Speaker 02:
Because the assertion has always been that this was an explicit denial.

[00:13:47] Speaker 04:
Well, and that's where they created a new rule of law for an explicit denial as a basis that heretofore did not exist.

[00:13:57] Speaker 04:
And then the Veterans Court

[00:13:59] Speaker 04:
permitted that by affirmative.

[00:14:02] Speaker 04:
And that's why I believe this court has jurisdiction and why this court should reverse the decision.

[00:14:07] Speaker 01:
Okay, Mr. Carpenter, you only have two minutes left, so let's hear from the government before we use up all your rebuttal time.

[00:14:21] Speaker 00:
Good morning, Your Honors.

[00:14:22] Speaker 00:
May it please the court?

[00:14:24] Speaker 00:
This is an appeal of a veterans court decision affirming a board finding the appellant is not entitled to an earlier effective date.

[00:14:30] Speaker 00:
This matter is not within the court's limited jurisdiction.

[00:14:34] Speaker 00:
This matter only concerns the application of law to fact and findings of fact.

[00:14:38] Speaker 02:
Well, I think you were here when we were having the conversation with Mr. Carpenter.

[00:14:42] Speaker 02:
So you heard what we were discussing with him about the idea that

[00:14:46] Speaker 02:
The only plausible theory for why the Board and the Veterans Court could conclude that what happened with the August 10 letter is an explicit denial is that there was a predicate fact-finding made for burial reimbursement, a completely different claim, that applied to the DIC claim.

[00:15:09] Speaker 02:
And that is the only way there could be an explicit denial.

[00:15:12] Speaker 02:
There was no actual reference to a DIC claim in that August 10 letter.

[00:15:16] Speaker 02:
And so the question is, as a matter of law, is that really a defensible rule to claim that something is an explicit denial?

[00:15:27] Speaker 00:
Your Honour, that would not be a rule of law.

[00:15:29] Speaker 00:
That is the application of law to fat.

[00:15:31] Speaker 00:
The Veterans Court did not create a new

[00:15:33] Speaker 00:
standard for notice did not state any new rule for what the law in 1984 required of a notice to a veteran.

[00:15:43] Speaker 00:
It simply found as it upheld the board and the board said the evidence supports this finding that there was an explicit denial.

[00:15:50] Speaker 00:
It read the letter, the context of the letter, what forms have been submitted, what the language used was and determined that that is sufficient to... Can you walk us through

[00:16:00] Speaker 02:
What, where the explicit denial is of the DIC claim?

[00:16:04] Speaker 02:
Because, obviously, there's no reference to the DIC claim.

[00:16:07] Speaker 00:
The August 10th letter does not say, this is for the DIC claim.

[00:16:12] Speaker 00:
It says, the evidence does not show that the veteran's death was due to a service-connected condition.

[00:16:18] Speaker 02:
So why is that an explicit denial of a DIC claim?

[00:16:22] Speaker 00:
And the Board and the Veterans Court and how it understood that language in terms of what the facts

[00:16:28] Speaker 00:
in terms of how it was read in context and the fact that there is notice of procedural and appellate rights, considered that to be sufficient as an expressed denial.

[00:16:39] Speaker 02:
Why would that be only an explicit denial of additional burial reimbursement rights?

[00:16:48] Speaker 00:
If the board in how it read the language determined that it was not in however way they were reading, it was not an implicit denial of the burial rights.

[00:16:59] Speaker 02:
You see our problem, right?

[00:17:01] Speaker 02:
We can't see anything in there.

[00:17:04] Speaker 02:
There's no earthly way of reading an explicit denial here in that August 10 letter of the DIC claim.

[00:17:14] Speaker 00:
I understand that position.

[00:17:17] Speaker 00:
The government's position here is that the finding of what that letter meant and how it should be read is a finding of fact in the application of a lot of facts.

[00:17:26] Speaker 03:
Isn't that an interpretation of a statute?

[00:17:28] Speaker 03:
I mean a regulation and that's what we're doing.

[00:17:31] Speaker 00:
Because all the Veterans Court did was apply pursuant to the cases Fournier and Natalie versus Principi

[00:17:39] Speaker 00:
The law in 1984 did not require a statement of reasons and bases.

[00:17:44] Speaker 01:
But didn't it require notice?

[00:17:46] Speaker 01:
Didn't 3.103e require notice of the denial?

[00:17:50] Speaker 00:
Yes, there is required notice of the denial, and they felt it fit into that rubric.

[00:17:55] Speaker 01:
That's not... And so, wait.

[00:17:56] Speaker 01:
So if they had announced... Suppose this is the way the opinion read, the board and the Veterans Court.

[00:18:01] Speaker 01:
Suppose it read 3.103e requires notice of a denial

[00:18:08] Speaker 01:
We conclude that when denial of one claim articulates a fact finding, which would likewise result in the denial of other claims, those other claims are therefore expressly denied.

[00:18:27] Speaker 01:
And that absolutely satisfies the notice of the denial requirement

[00:18:36] Speaker 01:
a 3.013e.

[00:18:37] Speaker 01:
Namely, suppose the decision said we are rendering an interpretation of 3.103e, which says notice is satisfied as a matter of law when you mention a fact in one claim that would result in denial of other claims.

[00:18:58] Speaker 01:
Would that be an interpretation of 3.103e if framed that way by the Veterans Court?

[00:19:06] Speaker 00:
If that was an interpretation of 3.103e that was not applying law to fact, then that could be, but that... But wait, I guess I'd love for you, your position makes it such that there's no such thing as an interpretation of whether there's adequate notice.

[00:19:24] Speaker 01:
How, you'd give me, please, an example of what would be a Veterans Court interpretation of adequate notice that we, under 3.103e, that we would be allowed to review.

[00:19:38] Speaker 00:
In 3.103e, if they apply, if they use the terms of the statute or the, I'm sorry, the regulation and said that something that is other than what the case law of this court or its previously understood regulations, if there was something that was contrary to that and they said that was permitted, if that was an interpretation that they used, that would be reviewable.

[00:20:00] Speaker 01:
If there was- Let me give you a, for example, the word notice.

[00:20:04] Speaker 01:
If they say the word notice,

[00:20:08] Speaker 01:
We interpret the word notice as including even a hint that we're not agreeing with a claim.

[00:20:15] Speaker 01:
That would be reviewable by us, right?

[00:20:17] Speaker 00:
I'm sorry, Your Honor, I'm not sure I understand.

[00:20:19] Speaker 01:
If the Veterans Court said a veteran has notice that we're denying a claim, if we even hint in an opinion that we're denying a claim, that would be an interpretation of the word notice, and I would have the right to review that on appeal, wouldn't I?

[00:20:32] Speaker 00:
I believe that would be correct, Your Honor.

[00:20:34] Speaker 01:
I guess that's what it feels to me like they did in this case almost exactly, is they denied one claim, higher burial rights that she sought, by making a fact finding.

[00:20:46] Speaker 01:
And then they said that fact finding amounted to notice that other claims were denied.

[00:20:53] Speaker 01:
And maybe it's a little more than a hint.

[00:20:55] Speaker 01:
It's a fact finding, not so much a hint.

[00:20:57] Speaker 01:
But it's really the same thing.

[00:20:59] Speaker 01:
And the fact that they didn't call it an interpretation in their opinion makes it no less so.

[00:21:04] Speaker 01:
is my problem.

[00:21:06] Speaker 00:
Trett, I mean, yes, obviously, Your Honor, the word interpretation does not need to be in the decision for this court to have jurisdiction.

[00:21:13] Speaker 00:
But as we state in our briefs, for example, the cases Jelts and Mayfield, those show that if there is a situation where the question is whether language in a letter or a decision is sufficient to meet an already established test, that's simply a fact-finding matter that this court does not have jurisdiction over.

[00:21:32] Speaker 02:
What are the elements of an explicit denial in the government's view?

[00:21:40] Speaker 02:
Would it include a reference to the claim that's being denied?

[00:21:45] Speaker 00:
I don't believe there is a specific case or statute that says the claim has to be named.

[00:21:52] Speaker 00:
I think it's sufficient that

[00:21:53] Speaker 00:
for the veteran to be understood that the benefits are not going to be received or to appeal that.

[00:22:01] Speaker 02:
And if there was- So there's some inference, perhaps, in the letter from VA that can rise to a level of being an explicit denial?

[00:22:13] Speaker 02:
In this- In other words, something implicit in the context of the letter?

[00:22:19] Speaker 02:
Well- Implicit equals explicit?

[00:22:23] Speaker 00:
Well, to go, the implicit denial doctrine is not per se an application of due process.

[00:22:31] Speaker 00:
So just going in that box, there's no law that the claim has to be specifically named.

[00:22:37] Speaker 02:
However... For implicit denials, I agree.

[00:22:39] Speaker 02:
I'm trying to figure out explicit denials and what the government thinks constitutes an explicit denial and whether implicit denials in the context of a letter is good enough to be deemed an explicit denial.

[00:22:52] Speaker 02:
And that doesn't really make sense to me.

[00:22:54] Speaker 00:
In this case, that one, that sentence, the evidence does not show that the veteran's death was due to a service-connected condition denies the specific factual basis for having a DIC claim in the first place, which is a finding of service connection.

[00:23:07] Speaker 00:
You cannot be awarded DIC if the claim is not service-connected.

[00:23:13] Speaker 00:
So this is, for example, in the implicit denial cases, there's many cases.

[00:23:18] Speaker 00:
A lot of the cases are if they just deny a claim for a foot problem.

[00:23:22] Speaker 00:
What disabilities does that fall within?

[00:23:25] Speaker 00:
What does that refer to?

[00:23:26] Speaker 01:
What you just said, almost verbatim, fits into my concern about notice under the regulation.

[00:23:32] Speaker 01:
The regulation requires notice.

[00:23:34] Speaker 01:
And what you just said is that sentence about the evidence doesn't show service-connected condition.

[00:23:40] Speaker 01:
is a necessary requirement for a DIC claim.

[00:23:43] Speaker 01:
And thus, if we say that, you've got notice that we've denied your DIC claim.

[00:23:49] Speaker 01:
That's the problem.

[00:23:50] Speaker 01:
What you just said fits exactly into my concern that this very much is a regulatory interpretation.

[00:23:57] Speaker 01:
Just the word interpretation wasn't used.

[00:23:59] Speaker 01:
But what you're really asking for is a new rule of law that says notice is satisfied.

[00:24:06] Speaker 01:
when a predicate fact is decided in one claim, it provides notice that any other pending claims that might also require that predicate fact have now been explicitly denied.

[00:24:18] Speaker 01:
That's the rule of law, I feel like you're asking for in this case.

[00:24:21] Speaker 00:
Well, Your Honor, the concept of what the burial, the August Town's letter, the concept of what that meant and what claims that is specifically referring to is an issue of fact.

[00:24:35] Speaker 00:
The question of

[00:24:36] Speaker 01:
But no, not what the word notice means in 3.103e.

[00:24:39] Speaker 01:
That's not a question of fact.

[00:24:42] Speaker 00:
No, Your Honor.

[00:24:42] Speaker 00:
But the board and the veterans might... The question is, did the board and the veterans court create a new rule of law that something else was being created that was not previously the established understanding of the law?

[00:24:56] Speaker 00:
Or were they taking the law in 1984 and saying, this letter satisfies it?

[00:25:00] Speaker 00:
Obviously, our position is that it's the latter.

[00:25:02] Speaker 00:
And I think the board and the veteran court felt they were

[00:25:05] Speaker 00:
purporting to do the latter, I understand that Your Honor disagrees.

[00:25:09] Speaker 00:
But in this situation, they simply stated the law in 1984 is that she was given a sufficient statement of reasons as basis under the law in 1984.

[00:25:19] Speaker 03:
So after 1984, are we or is the agency to infer all other, whether there's a denial or not?

[00:25:28] Speaker 00:
I'm sorry, Your Honor.

[00:25:31] Speaker 03:
After 1994.

[00:25:33] Speaker 00:
Yes.

[00:25:33] Speaker 03:
Is the agency to infer whether there's been a denial or not with respect to those questions?

[00:25:42] Speaker 00:
Well, the question, the issue is that in pre-Natalie versus Principi, the understanding of what was required to provide a veteran notice and denial is different than how we understand it today.

[00:25:55] Speaker 03:
It seems to me you're building an element of inference in your

[00:26:02] Speaker 03:
in your argument of explicit denial?

[00:26:07] Speaker 00:
All right, yes.

[00:26:08] Speaker 00:
The question is, this statement in the August 10th letter is not inferring what the fact question was.

[00:26:19] Speaker 00:
It's that the statement of the evidence is what is needed to deny the DIC claim, plus the notice of the procedural and appellate rights.

[00:26:26] Speaker 00:
So the question of, well, it's in a letter talking about burial benefits.

[00:26:31] Speaker 00:
is within the Board and the Veterans Court's factual understanding of how that context should be understood.

[00:26:37] Speaker 00:
The Board and the Veterans Courts are the ones making the inferences about factually how this should be understood.

[00:26:42] Speaker 03:
But if you're making an inference, then it cannot be an explicit denial.

[00:26:46] Speaker 03:
It has to be an explicit denial.

[00:26:49] Speaker 00:
Well, I think it's an understanding that the context is what makes it the explicit denial.

[00:26:55] Speaker 00:
And that's their fact finding, is what the evidence showed about that letter.

[00:27:00] Speaker 01:
I think we've covered this ground.

[00:27:02] Speaker 01:
Do you have anything else you want to hit on, or do you want to let Mr. Carpenter have his remaining rebuttal time?

[00:27:07] Speaker 00:
I will just say, even if the court would exercise jurisdiction, just simply to point out that in the briefs, the arguments regarding the formation of the DIC claim are not relevant to what the issue is here.

[00:27:21] Speaker 01:
The government has conceded that there is a DIC claim in this case, and there's no reason for us to reach that, correct?

[00:27:27] Speaker 00:
Correct.

[00:27:28] Speaker 00:
We're not saying anything.

[00:27:30] Speaker 00:
We acknowledge that the submission of the death benefits form as a matter of law created a DIC claim.

[00:27:36] Speaker 00:
So there's no issue of if the burial benefits form created that or if something else created that, the death benefits form pursuant to statute and case law is also a DIC claim.

[00:27:47] Speaker 00:
So the formation question, again, is not relevant.

[00:27:52] Speaker 00:
I will conclude then and say that the court should affirm.

[00:27:55] Speaker 00:
Thank you.

[00:27:56] Speaker 01:
Thank you.

[00:27:56] Speaker 01:
Mr. Carpenter, you have a little bit of rebuttal time left.

[00:27:59] Speaker 04:
Your Honor, I don't have anything further to offer unless there's further questions from the court.

[00:28:05] Speaker 02:
Yeah, just one quick question.

[00:28:06] Speaker 02:
I wanted to make sure that we both understand that implicit denials satisfy the notice requirement of 3.103E.

[00:28:14] Speaker 02:
Yes.

[00:28:15] Speaker 02:
So then why is it that what happened here

[00:28:22] Speaker 02:
is some kind of, because, I don't know, impermissible interpretation of 3.103e.

[00:28:31] Speaker 04:
Because the implicit denial is predicated upon an explicit denial of another benefit that is reasonably close to that benefit and requires that underlying fact.

[00:28:43] Speaker 04:
So there was an explicit denial on claim one

[00:28:48] Speaker 04:
and claim two was also implicitly denied, but not explicitly denied.

[00:28:54] Speaker 01:
Can I give you an example?

[00:28:55] Speaker 01:
Supposed a pension denial had not said because she makes too much money, but instead said because she's not service-connected.

[00:29:01] Speaker 01:
Is that a scenario where had there been both a pension and a DIC claim pending at the same time, if both of them had required service connection, you know,

[00:29:11] Speaker 01:
a single decision resolving a single application, which has two claims that both require the same predicate effect, that might be a scenario where implicit denial could be said to exist.

[00:29:20] Speaker 01:
I mean, I realize there could be other facts that point one way or the other, but is that what your meaning suggests?

[00:29:25] Speaker 01:
Yes.

[00:29:27] Speaker 02:
In her request for reimbursement for burial costs, did she make a claim that there was service connection, that death was service connection?

[00:29:37] Speaker 04:
No, Your Honor, I do not believe she did.

[00:29:39] Speaker 04:
I believe all she did was to indicate the amount of money that was expended for her husband's funeral.

[00:29:45] Speaker 04:
And they responded that you're eligible for burial benefits because his death was not from a service-connected condition at the lower rate.

[00:29:54] Speaker 02:
Because she didn't indicate that it was service-connected.

[00:29:58] Speaker 04:
No, no.

[00:29:58] Speaker 04:
Even if she had not indicated, but he in fact died from a service-connected condition, then she would be entitled to the larger burial benefit amount.

[00:30:07] Speaker 01:
Let me be really clear just about all of that.

[00:30:10] Speaker 01:
It's an application, right?

[00:30:11] Speaker 01:
Not a letter.

[00:30:12] Speaker 01:
I remember seeing an application form.

[00:30:14] Speaker 01:
I don't remember even seeing a box on it where she would have designated service connection at all.

[00:30:19] Speaker 01:
So it wasn't for her to assert one way or the other at that point whether he was service connected.

[00:30:25] Speaker 01:
So your view, if I understand it, was technically they didn't deny anything she requested.

[00:30:30] Speaker 00:
Correct.

[00:30:31] Speaker 01:
They granted her burial benefits.

[00:30:33] Speaker 01:
Now, did they grant her the most that maybe any person could have gotten under different facts?

[00:30:37] Speaker 01:
No, but that didn't amount to a denial of anything she requested.

[00:30:41] Speaker 04:
That's correct.

[00:30:42] Speaker 01:
Okay, I understand.

[00:30:45] Speaker 02:
But she didn't get everything that she requested.

[00:30:47] Speaker 02:
No, no.

[00:30:49] Speaker 04:
She didn't get everything that she could have been entitled to.

[00:30:54] Speaker 04:
As Judge Moore pointed out, there is no request in the application form to distinguish between the higher and the lower amount.

[00:31:01] Speaker 02:
Right.

[00:31:02] Speaker 02:
But she got a lower amount.

[00:31:05] Speaker 02:
She got $150 because the VA concluded that the death was not service-connected?

[00:31:11] Speaker 04:
That's correct.

[00:31:12] Speaker 02:
And how did they reach that conclusion?

[00:31:16] Speaker 04:
We don't have any idea.

[00:31:16] Speaker 04:
They didn't share that with us.

[00:31:18] Speaker 04:
I honestly don't know.

[00:31:20] Speaker 04:
would correct you that actually she got $300.

[00:31:24] Speaker 04:
She got $150 for the internment and $150 for the marker.

[00:31:30] Speaker 04:
And if you note in the record, it says $150 twice.

[00:31:35] Speaker 04:
So she got the maximum benefit that was available to someone whose death was not the result of a service-connected condition.

[00:31:44] Speaker 04:
And that was the beginning and the end of the discussion in that letter.

[00:31:48] Speaker 04:
with no reference, no mention whatsoever to DIC.

[00:31:52] Speaker 01:
Okay.

[00:31:52] Speaker 01:
Thank you, Mr. Carpenter.

[00:31:53] Speaker 01:
We thank both counsel.

[00:31:55] Speaker 01:
The case is taken to their submission.