[00:00:00] Speaker 03:
two zero one seven dash one eight three one shirk versus or work mr carpenter please proceed thank you very much your honor may it please the court and carpenter appearing on behalf of mr adam shirk the uh... congress provided certain conditions for special monthly compensation for compensation over and above the scheduler rating mister carmen let me ask you this thirty eight cfr uh... three point three five two a

[00:00:30] Speaker 04:
deals with aid and attendance, quote, to protect the claimant from hazards or dangers incident to his or her daily environment.

[00:00:45] Speaker 04:
Correct.

[00:00:46] Speaker 04:
What proof is in the record of incidental hazards or dangers in the facility where he's?

[00:00:54] Speaker 03:
The court order of involuntary commitment.

[00:00:59] Speaker 04:
Yes.

[00:01:00] Speaker 03:
So?

[00:01:01] Speaker 03:
Well, I don't think it is a so, Your Honor, because the involuntary commitment in this case would not have happened but for the psychiatric condition.

[00:01:09] Speaker 04:
No, no, no, no.

[00:01:10] Speaker 04:
You're not answering my question.

[00:01:12] Speaker 04:
What incidental hazards or dangers exist in the facility?

[00:01:17] Speaker 04:
What proof is there of that?

[00:01:19] Speaker 03:
Oh, inside the facility?

[00:01:20] Speaker 03:
Yes.

[00:01:20] Speaker 03:
No, there is none, Your Honor.

[00:01:22] Speaker 03:
But it is not required that those daily hazards be incident in the facility.

[00:01:29] Speaker 03:
It is that his service-connected disability required the care in such an environment.

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That it has to be in a facility that is required by the service-connected disability.

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The service-connected disability is what requires the care and assistance on a regular basis to protect the claimant from the hazards or dangers

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incident to his or her daily environment.

[00:01:57] Speaker 01:
Yes, but there are multiple fact findings in this case that in this instance, Mr. Shirk was not involuntarily committed to protect him from danger.

[00:02:06] Speaker 01:
He was involuntarily committed to protect others from him causing them danger.

[00:02:11] Speaker 01:
That is correct, Your Honor.

[00:02:12] Speaker 01:
And under Oregon law, it expressly says that his involuntary commitment is to protect others.

[00:02:17] Speaker 01:
I don't see anything in 3352

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that says regular aid and assistance is necessary to protect other people from him harming them.

[00:02:29] Speaker 01:
It says expressly to protect him from harm.

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And our assertion is that this care was not required to protect others, although that was the reason for the court order.

[00:02:43] Speaker 01:
It's the only reason specified in the record, and it's expressed fact-finding below.

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except that fact-finding is not consistent with the evidence of record.

[00:02:53] Speaker 01:
The evidence of record is... But I don't get to do that, right, Mr. Carpenter?

[00:02:57] Speaker 01:
The only way you have any legal issue here is that you need to convince me that 3352 extends not just to protecting him, but also extends to protecting others.

[00:03:09] Speaker 01:
Because otherwise, your case is entirely one of fact, and I can't review fact.

[00:03:14] Speaker 01:
I agree.

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So the only way you can prevail that I can see is if you convince me that 3352

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extends to protecting other people from him harming them, and I don't see how that language in this regulation can be construed that way.

[00:03:28] Speaker 03:
Well, Your Honor, I don't believe that that description of protecting other people is, in fact, what is required by the regulation.

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What is required by the regulation is that the service-connected disability, in this case, a psychiatric disease,

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at page 17 and 16 of the Joint Appendix.

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At Joint Appendix 17, the commitment order specifically indicates that there was a finding of a mental disease and dangerousness, and thus jurisdiction was appropriate.

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And then later it says that the board also received evidence that Mr. Shirk was affected by a mental disease

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as demonstrated by the underlying facts of this case.

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So it is that underlying disease, the service-connected disability.

[00:04:23] Speaker 01:
He may have a disease, but the facts in this case are he was involuntarily committed because he was a danger to others.

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There are no fact findings in this case that suggest he was a danger to himself.

[00:04:34] Speaker 01:
There are no fact findings.

[00:04:36] Speaker 01:
No, Your Honor.

[00:04:37] Speaker 01:
And you can't be asking me to make one.

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And I am not.

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You're asking me to find because he is paranoid schizophrenic, he therefore is necessarily a danger to himself.

[00:04:46] Speaker 01:
Is that what you're asking me to find?

[00:04:48] Speaker 01:
It sounds like that's what you're asking me to find.

[00:04:50] Speaker 03:
Well, to the extent that, that is implicit in a finding of not guilty by reason of insanity that is presented in a criminal proceeding that is predicated entirely upon the service-connected disability.

[00:05:04] Speaker 03:
The relationship between special monthly compensation... You're saying a lot of words that don't respond to my point.

[00:05:10] Speaker 01:
You want me to find as a factual matter that his diagnosis automatically makes him a danger to himself.

[00:05:16] Speaker 01:
That's the only way you can.

[00:05:17] Speaker 03:
Yes, Your Honor, I am.

[00:05:19] Speaker 03:
That the nature of paranoid schizophrenia is such that it presents an obvious... I'm not a psychiatrist, and there are no fact findings in the record to support what you've just said.

[00:05:30] Speaker 01:
No fact finder in this record said what you just said.

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And they did make fact findings expressly

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that his involuntary commitment was to protect others because he was an arsonist.

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So that's in the record.

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But what you'd like me to find, while it may sound sensible and seem very logical to me, and even have intuitive appeal to me, given his particular mental health diagnosis, I'm not a doctor.

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And I'm an appellate court judge with no ability to review fact findings.

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And I'm not asking you to review the fact finding.

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I'm asking you to find that just as there is no evidence in the record

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that says that this involuntary commitment was for anything other than to protect other citizens from Mr. Shirk.

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There is no fact finding that contradicts that it was the severity of his service-connected disability that caused him to be found not guilty by reason of insanity and involuntarily committed.

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And that the very nature of an involuntary commitment is the relationship between the service-connected psychiatric disability

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and his, for lack of a better term, involuntary incarceration.

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Mr. Carpenter, correct me if I'm wrong, but are you not seeking special monthly compensation to cover necessary aid and attendance for your client?

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That's what it's for, is it not?

[00:07:02] Speaker 03:
Well, I'm not quite sure what you mean as you phrased it, but you are using the words that exist in the regulation.

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If somebody doesn't need aid and attendance, they can't get special monthly compensation.

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Is that not correct?

[00:07:17] Speaker 03:
That is correct, Your Honor.

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But in this case, it is clear that he needs aid and attendance for his service-connected disability.

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And he gets it for free.

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Yes.

[00:07:29] Speaker 03:
So what's it designed to cover?

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The fact that he needs the additional aid and attendance.

[00:07:36] Speaker 04:
There is no... No, no, no, no.

[00:07:38] Speaker 04:
There is no... What additional aid and attendance?

[00:07:41] Speaker 04:
He gets aid and attendance.

[00:07:43] Speaker 01:
Well, let me ask you a question to see if I can help clarify this, because I understand, and I think you do too, Judge Wallach's point, but I'm wondering if this veteran was diagnosed instead with PTSD and needed to be hospitalized in a VA mental psychiatric facility because he was threatening to kill himself as a result of night terrors that he was having due to PTSD, despite the fact that he would be incarcerated, getting three square miles a day, have nurses and doctors watching him around the clock, he would be qualified for special

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would he be qualified for compensation for regular aid and attendance in your view under those circumstances?

[00:08:21] Speaker 03:
Yes.

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Because it is the nature of the service-connected disability.

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Even though Mr. Carpenter, there's no out-of-pocket expenses paid by him.

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That's correct.

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Let me ask you.

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I understood you'd be arguing that

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that or Mr. Schert to be arguing that his involuntary commitment to the Oregon State Hospital is a matter of law entitled to SMC, ANA benefits.

[00:08:52] Speaker 02:
That's correct.

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That's your position.

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That is my position.

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That is the only reasonable interpretation and that the interpretation relied upon by both the board and by the Veterans Court

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attempts to impose exclusions or exemptions from a n a so you would say you would say you don't under your view correct me if i'm wrong please you would say that you do not have to get into the circumstances of his condition just the fact that he was involuntarily committed itself act as a matter of law entitles him to this benefit that is correct because of the nature of his service-connected disability

[00:09:32] Speaker 03:
If he had a physical disability that required him to be in hospital care for his treatment, then that qualifies him for ANA.

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It qualifies him for the aid and attendance additional benefit.

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The additional benefit is only provided when there is a relationship between the service-connected disability and the need for aid and attendance.

[00:09:58] Speaker 04:
Supposing your client took that extra money and he hired an attendant.

[00:10:09] Speaker 04:
Think they could work for him in the facility?

[00:10:15] Speaker 04:
It's for aid and attendance, is it not?

[00:10:22] Speaker 03:
I'm not sure there's anything in either the statute or the regulation that suggests that the money received is to go to that purpose.

[00:10:30] Speaker 04:
The money that is... What's it called?

[00:10:33] Speaker 04:
It's for aid and attendance, is it not?

[00:10:36] Speaker 03:
If the service-connected disability requires aid and attendance, he is entitled to additional compensation.

[00:10:43] Speaker 03:
It's just like the dependent benefit, where the veteran gets the benefit, not the dependent, because it is the veteran's entitlement to that benefit.

[00:10:54] Speaker 01:
Mr. Carpenter, you're in your rebuttal time.

[00:10:56] Speaker 01:
Do you want to use it?

[00:10:57] Speaker 03:
Yes, Your Honor.

[00:10:59] Speaker 03:
I'd like to respond.

[00:11:00] Speaker 01:
Okay, sure.

[00:11:01] Speaker 00:
Ms.

[00:11:01] Speaker 00:
Moses, please proceed.

[00:11:05] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:11:08] Speaker 00:
Your Honors are correct that this is an entirely factual matter that Mr. Shirk is challenging.

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And it gets the court into the impermissible zone of reviewing challenges to factual determinations and a challenge to the application.

[00:11:24] Speaker 04:
Talks about the law.

[00:11:25] Speaker 04:
I'm sorry, Your Honor?

[00:11:27] Speaker 04:
Rather than discussing the factual issues, which are as they are,

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I mean, I just find Mr. Carpenter's argument unsettled.

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It seems to me that aid and attendance, compensation for aid and attendance implies that the veteran is using aid and attendance.

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Do you have any alleged history or drafting history or statements of purpose or anything?

[00:12:01] Speaker 04:
I mean, it just makes no sense.

[00:12:04] Speaker 00:
Your Honor, I don't think that we even need to go beyond the regulations themselves.

[00:12:09] Speaker 00:
Certainly 3.351.

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I know what it says.

[00:12:14] Speaker 04:
That's why my mind is so boggled.

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The plain language here controls exactly what the board is required to do and exactly what the veteran is required to prove.

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And the board applied the criteria set forth in 35352.

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as 3.351 requires.

[00:12:36] Speaker 04:
So you don't have anything else for me, though?

[00:12:42] Speaker 00:
No, Your Honor.

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Nothing else is required.

[00:12:44] Speaker 04:
That wasn't my question.

[00:12:45] Speaker 04:
It's required if I ask you and you can answer it.

[00:12:48] Speaker 00:
No, Your Honor, other than the regulations, the language of the regulations themselves.

[00:12:54] Speaker 02:
Ms.

[00:12:54] Speaker 02:
Moses, as I understand it, and Mr. Carpenter confirmed this to me, I mean, I think the one point I would disagree with you on, I think there is a legal issue within our jurisdiction here.

[00:13:04] Speaker 02:
Because he says that the regulation, under the regulation, as a matter of law, once you go involuntarily to a state mental hospital like this in Oregon, you're automatically ipso facto entitled to these benefits.

[00:13:25] Speaker 02:
So I mean, I think he does make a legal argument.

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Now, whether or not it has merit is another question.

[00:13:30] Speaker 02:
But it does seem to be a legal argument in that he's saying,

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Under the regulation, once I go into the hospital, I'm entitled to the benefits.

[00:13:39] Speaker 02:
So why is that view of the regulation?

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I mean, that's what he says.

[00:13:44] Speaker 02:
He's arguing.

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Now, why is that, in your view, is that view of the regulation wrong?

[00:13:52] Speaker 00:
That view of the regulation is incorrect because, first,

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There is no presumption that's allowed for under 3.352A.

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The veteran must establish a factual need for aid and attendance.

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And 3.352A sets forth the criteria for that.

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And it does not mention confinement at all.

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There may be some circumstances under which a veteran who is involuntarily confined may be in need of aid and attendance.

[00:14:26] Speaker 00:
But what the board is required to do is to look at all of the facts of the case and determine whether the veteran actually has a need for that agent.

[00:14:37] Speaker 02:
So what you're saying is his legal argument is wrong because the statute doesn't carry the presumption that his argument suggests it does.

[00:14:46] Speaker 02:
So the legal argument goes away.

[00:14:48] Speaker 02:
And then once that goes away, you're in a fact issue over which we have no jurisdiction.

[00:14:54] Speaker 00:
Yes, your honor.

[00:14:55] Speaker 02:
So that's basically what you would say.

[00:14:57] Speaker 00:
Yes, your honor.

[00:14:58] Speaker 00:
And interestingly, at Mr. Shirt's reply brief at 8, he says that he's not asking or seeking or arguing that a presumption exists.

[00:15:10] Speaker 02:
Well, I would agree with that.

[00:15:11] Speaker 02:
He's asking for more than a presumption.

[00:15:15] Speaker 02:
I think he's right in that.

[00:15:16] Speaker 02:
He's saying, no, I'm not asking for a presumption.

[00:15:18] Speaker 02:
I'm asking for a free pass once I

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get involuntarily committed, the regulation says, I'm entitled to these benefits.

[00:15:27] Speaker 02:
But I understand what your argument is.

[00:15:28] Speaker 00:
Yes, Your Honor.

[00:15:29] Speaker 00:
And I think that it exposes the entire problem with this is because the position urged by Mr. Shirk would have the effect of the board abandoning its duty to look at the facts and apply the law to the facts of the case.

[00:15:45] Speaker 00:
And if the Court doesn't have any further questions, we ask that you dismiss

[00:15:51] Speaker 00:
or in the alternative, affirm the decision of the Veterans Court.

[00:15:56] Speaker 04:
Thank you.

[00:15:58] Speaker 04:
Mr. Carpenter, supposing your client has been sent to prison, there could be circumstances, as the government conceded, where he might need psychiatric care, for example, that wasn't available from an overcrowded prison facility, where I can imagine

[00:16:21] Speaker 04:
The reg would very clearly apply.

[00:16:24] Speaker 04:
But supposing, let me ask you this.

[00:16:28] Speaker 04:
Would you be able to take this position that you're taking here for someone who's committed, who doesn't need any specific aid and attendance?

[00:16:37] Speaker 04:
After all, your position is he engaged in the arson because of something caused by his military service.

[00:16:48] Speaker 03:
I'm not sure what you mean by take the position that there wouldn't be any need for that.

[00:16:55] Speaker 03:
What I am suggesting is... Any need for aid and attendance.

[00:16:58] Speaker 04:
In other words, that you could just seek the money because he's confined because of his service connection.

[00:17:06] Speaker 03:
Yes, Your Honor.

[00:17:06] Speaker 03:
That is precisely what I'm saying.

[00:17:08] Speaker 04:
And the analogy... But have there been any claims where prisoners receive veterans' benefits?

[00:17:15] Speaker 04:
Have there been

[00:17:15] Speaker 04:
aid and attendance claims under that basis?

[00:17:18] Speaker 03:
No, because Congress has specifically spoken to the issue by statute and said that when a veteran is incarcerated, which was the alternative for Mr. Shirk here, then any benefits that they're receiving are automatically reduced to 10 percent.

[00:17:35] Speaker 03:
So a veteran, while incarcerated, could not.

[00:17:38] Speaker 03:
However... Well, but they do get benefits.

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Only 10%.

[00:17:42] Speaker 03:
They're limited to the 10%.

[00:17:44] Speaker 03:
So the SMC would not come into play for a direct benefit to the veteran.

[00:17:49] Speaker 03:
But if there were a circumstance in which, during incarceration, the veteran were in need of hospital care in a facility that treated and dealt with his service-connected disability, if there were dependents

[00:18:04] Speaker 03:
those dependents could get the apportionment of the full amount of his benefit, which would include aid and attendance.

[00:18:12] Speaker 03:
And I think it's important to understand that when Congress wrote this statute at 1114, it did not make a correlation between qualifying for the benefit and using the benefit, as you suggest, quite logically, should go towards the aid and attendance that is being provided.

[00:18:31] Speaker 03:
At 1114S, for instance,

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there is a provision for being house-bound.

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And that's all it requires is that you are house-bound.

[00:18:41] Speaker 03:
And so there is no money to go towards that condition, but you do get paid additional compensation under the statutory and regulatory scheme.

[00:18:52] Speaker 03:
Unless there's any further questions from the panel.

[00:18:55] Speaker 01:
And we thank both counsel for their argument.

[00:18:56] Speaker 01:
The case is taken under submission.