[00:00:04] Speaker ?:
Thank you.

[00:00:29] Speaker 04:
OK, the next argued case is number 18, 1283, Zotorella, against the Secretary of Veterans Affairs.

[00:00:50] Speaker 04:
Mr. How do you pronounce your name?

[00:00:54] Speaker 00:
Dohacus.

[00:00:55] Speaker 04:
Dohacus.

[00:00:56] Speaker 04:
Yes, ma'am.

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

[00:00:58] Speaker 04:
Proceed.

[00:01:00] Speaker 00:
Well, thank you very much.

[00:01:02] Speaker 00:
On behalf of Mrs. Autorella, we appreciate this opportunity to present our case.

[00:01:07] Speaker 00:
May it please the court?

[00:01:08] Speaker 00:
We raised two issues on appeal here.

[00:01:10] Speaker 00:
The first, I think most important, is the jurisdiction of the Court of Appeals for Veterans Claims to find facts in the first instance when performing its statutory required harmful error analysis.

[00:01:24] Speaker 00:
This really turns on the meaning of Section 38 USC, Section 7261C within the scope of that review.

[00:01:34] Speaker 00:
The second issue is whether the court erred in failing to apply the natural effects presumption articulated in Mayfield v. Nicholson and confirmed in Vasquez-Flores.

[00:01:49] Speaker 00:
As we talked about in our brief, the entire premise of the harmless error analysis

[00:01:54] Speaker 00:
as articulated both at the U.S.

[00:01:56] Speaker 00:
Supreme Court and this Court and in the Veterans Court, is predicated on a desire to allow courts to dispose of appeals without needless remands.

[00:02:04] Speaker 00:
And I think we all agree that that's a very worthwhile goal.

[00:02:11] Speaker 00:
However, these courts have also explained that the idea of the harmless, harmful error, or at least a part of it,

[00:02:20] Speaker 00:
is to ensure that the appellant has a fairness in the process and a meaningful opportunity to participate.

[00:02:29] Speaker 00:
The rule announced in this court in Melichick, I'm hoping I'm pronouncing that correctly, discusses at length the APA's rule of prejudicial error and ends up finding that the court, the Veterans Court, has the authority to conduct de novo review of facts, even where the Board of Veterans Appeals

[00:02:49] Speaker 00:
never considered any of those.

[00:02:51] Speaker 04:
But you're not disputing that the veteran knew what he should file.

[00:02:56] Speaker 00:
I am disputing that, ma'am.

[00:02:57] Speaker 00:
Yes, ma'am.

[00:02:59] Speaker 00:
When you look at the record, and I know that we can't, you guys can't look at facts, but when you look at the record.

[00:03:05] Speaker 03:
We're not you guys.

[00:03:06] Speaker 03:
We're the United States Court.

[00:03:08] Speaker 00:
Yes, ma'am.

[00:03:09] Speaker 00:
Yes, sir.

[00:03:12] Speaker 00:
So when you look at the record, and we identified on our brief

[00:03:21] Speaker 00:
On page 13, our opening brief, there were three statements from his representatives.

[00:03:26] Speaker 00:
And Mr. Zottirella never made any overt statement on his claim.

[00:03:32] Speaker 00:
The first two talked about asking for an increased rating.

[00:03:37] Speaker 00:
The issue was whether he could reopen a previously denied claim.

[00:03:42] Speaker 00:
And the law requires that to do that, you must present new and material evidence.

[00:03:47] Speaker 00:
The court found that the VA had never informed Mr. Zottarella what he needed to tell the VA in order to reopen his claim or substantiate his claim.

[00:03:57] Speaker 00:
So all along, Mr. Zottarella had been presenting evidence and asking for, through his representatives, an increased rating for his hearing loss, which implies that he has already been service-connected and he's just asking for the proper rating.

[00:04:13] Speaker 00:
His third representative, which we labeled as DAV3, and this is page 24 of the appendix, argued or stated the only significant issue to be resolved is whether the veteran was in fact exposed to acoustic trauma in service.

[00:04:29] Speaker 00:
In fact, the issue was whether he had a nexus from his exposure to acoustic trauma to his current disability.

[00:04:37] Speaker 00:
So I would say in answer to your question that he did not know what he needed to present and the board never determined that he did.

[00:04:46] Speaker 00:
The court did at the very last stage of the process of this appeal.

[00:04:54] Speaker 00:
So when we consider the harmless error analysis, we must keep in mind that 7261

[00:05:04] Speaker 00:
C, directs that in no instance shall the Court of Appeals of Veterans Claims conduct de novo fact review.

[00:05:12] Speaker 00:
And when you look at the structure of the statute, this court in Melichick talked about the fact that there was a directive to review the record on appeal and use that as a basis to find that the court could, in fact, conduct a de novo review.

[00:05:33] Speaker 00:
However, we could not find any case that specifically discussed 7261C in the context of a harmless error analysis.

[00:05:43] Speaker 00:
There are plenty of cases, both at this court and at the lower court, which talks about Chenery doctrine and the fact that the Veterans Court is not allowed to conduct a de novo review in the merits-based section or stage of deciding the appeal,

[00:06:02] Speaker 00:
But nothing we could find ever discussed how that applies to a harmless error analysis.

[00:06:07] Speaker 02:
How do you respond to the argument that the language, take due account of the rule of prejudicial error, which is directed to the Court of Veterans' Appeals, must include how can the Court of Veterans' Appeals take account of the rule of prejudicial error without considering some fact-finding?

[00:06:29] Speaker 00:
There can be fact findings that they, well, they can clearly find that a fact made by the board was clearly erroneous.

[00:06:38] Speaker 00:
And so.

[00:06:39] Speaker 02:
But what, so you're saying that in a situation where the Court of Veterans' Appeals is considering the rule of prejudicial error, they have to always make sure the board has actually considered the prejudicial error issue and made fact findings thereon before they can consider it.

[00:06:57] Speaker 00:
No, ma'am.

[00:06:58] Speaker 00:
There's no predicate that the board had to have considered harmless error.

[00:07:03] Speaker 02:
But doesn't harmless error, to the extent it has a fact-finding, you're saying that the board has to make the fact-finding in the first instance.

[00:07:09] Speaker 02:
That's what your argument is, right?

[00:07:11] Speaker 00:
Not whether there was harmless error.

[00:07:14] Speaker 00:
The fact-finding that the board has to make first is the basis for determining that it was harmless error.

[00:07:20] Speaker 02:
So if the... Why would the board even go into that without considering the harmless error doctrine?

[00:07:26] Speaker 00:
Well, I agree that it's rare, but there are situations, and there have been other cases.

[00:07:32] Speaker 00:
And I think Fletcher was one.

[00:07:35] Speaker 00:
Not Fletcher.

[00:07:37] Speaker 00:
We cited into our brief at least one case where the court upholds the board's decision based on some other fact, something that the board had already considered.

[00:07:49] Speaker 00:
in another section, not necessarily pertinent to that specific issue, but the board had already considered that fact and said, this is what we find.

[00:07:57] Speaker 00:
And so we would argue that the court could use those other facts to uphold or to find harmless error.

[00:08:08] Speaker 00:
In the context of harmless error, there's not only fact finding that can find something harmless.

[00:08:13] Speaker 00:
If the veteran was not eligible for the benefit by the matter of law, the court can perform that function under its jurisdiction and find harmless error, even if there was an egregious error.

[00:08:25] Speaker 00:
Or if, you know, for some other legal reason, the veteran was not entitled to it or was not harmed by it, then they could find harmless error without going into the very detailed fact finding

[00:08:38] Speaker 00:
that is not the purview of the Veterans Court.

[00:08:42] Speaker 02:
Now, you agree that Mlechek, I don't know how to say it either, Mlechek?

[00:08:47] Speaker 02:
Mlechek?

[00:08:48] Speaker 02:
I don't know how to say it.

[00:08:49] Speaker 02:
Mlechek and Newhouse resolve this question against your client, right?

[00:08:54] Speaker 00:
Yes, ma'am.

[00:08:54] Speaker 00:
We agree with that.

[00:08:56] Speaker 00:
We are arguing that that was incorrect and does not take into consideration 7261C.

[00:09:03] Speaker 00:
And I know that the panel is bound by precedent.

[00:09:06] Speaker 00:
And so we're urging an in-bond proceeding to review that and consider the role of 7261C within the context of prejudicial error analysis or harmless error analysis.

[00:09:19] Speaker 04:
So they agree that it was an error.

[00:09:24] Speaker 04:
What, in your view, should happen next?

[00:09:28] Speaker 04:
You're asking for a reversal, is that right?

[00:09:33] Speaker 04:
that the requested benefits should be granted, or are you requesting another opportunity at the record?

[00:09:42] Speaker 00:
Ma'am, we are not asking for a grant of benefits.

[00:09:45] Speaker 00:
The stage of his appeal when it came to the court was trying to reopen a previously denied claim.

[00:09:54] Speaker 00:
We would ask for a reversal simply by, well, we would ask that you vacate the Veterans Court's decision because they exceeded their jurisdiction

[00:10:02] Speaker 00:
and remand it for a new decision that does not involve a de novo fact-finding, which probably would end up in being a remand for Mr. Zottarello to have another opportunity to present his reopened claim.

[00:10:19] Speaker 04:
And in a situation like that... Well, then that would be de novo fact-finding, would it not?

[00:10:24] Speaker 00:
At the board, ma'am.

[00:10:25] Speaker 04:
Yes.

[00:10:25] Speaker 00:
Yes, ma'am.

[00:10:26] Speaker 00:
which the board is permitted to do and actually is required to do by statute.

[00:10:30] Speaker 00:
That's within their jurisdiction.

[00:10:32] Speaker 00:
The Veterans Court cannot perform the de novo review.

[00:10:36] Speaker 00:
And in this case, I think it would be appropriate because, as I mentioned, he never knew what he needed to tell the VA to substantiate his claim.

[00:10:48] Speaker 00:
He all along said, I'm trying to get an increase.

[00:10:51] Speaker 00:
One representative said that he was trying to show that he was exposed to acoustic trauma.

[00:10:57] Speaker 03:
And I think that the danger inherent in the de novo fact finding is highlighted here because... The board below determined that your client had actual knowledge of what he needed to submit.

[00:11:17] Speaker 03:
That's a fact, isn't it?

[00:11:19] Speaker 03:
That's a factual determination.

[00:11:23] Speaker 00:
The board determined that?

[00:11:25] Speaker 00:
We can't review that.

[00:11:27] Speaker 03:
I'm looking at Judge Kramer's opinion.

[00:11:33] Speaker 03:
The August statement fully articulates the new material evidence standard and argues that appellants evidentiary submissions constituted new material evidence, thus demonstrating actual knowledge.

[00:11:47] Speaker 00:
Yes, Your Honor.

[00:11:49] Speaker 00:
The court determined that.

[00:11:51] Speaker 00:
The board never made that determination that he had actual knowledge.

[00:11:55] Speaker 00:
The Board of Veterans' Appeals, the agency never addressed that issue.

[00:12:01] Speaker 00:
They did say there was harmless, any error is harmless, which I would argue one doesn't tell us anything.

[00:12:08] Speaker 00:
and two, was not substantiated or may not be substantiated because there was no meat to that and the reasons and bases was lacking to allow the court proper review of that decision.

[00:12:19] Speaker 00:
The fact that Mr. Zottarella knew what he was required to submit to prove his claim was made first by the Court of Veterans' Appeals and not by the board.

[00:12:32] Speaker 04:
They didn't pull that out of the air?

[00:12:34] Speaker 04:
I mean, this is really the problem with the

[00:12:37] Speaker 04:
the appeal, it seems that they did say it was error, but he had knowledge, so it didn't harm us.

[00:12:45] Speaker 04:
And I haven't heard the answer to that.

[00:12:48] Speaker 04:
There must have been something before the board or the court for them to think that the veteran knew what else he needed to provide.

[00:12:58] Speaker 00:
Yes, Your Honor.

[00:12:59] Speaker 00:
The court cited to his representative statement

[00:13:02] Speaker 00:
that I mentioned earlier on page 24 of the appendix.

[00:13:08] Speaker 00:
But again, the statement is that he was, here's evidence showing that he was exposed to trauma in service, which is one part of proving service connection.

[00:13:18] Speaker 00:
To reopen the claim, he needs material evidence.

[00:13:22] Speaker 00:
The issue originally was denied because he did not have a nexus, a connection between the acoustic trauma and his current disability.

[00:13:31] Speaker 00:
So he presented evidence for one part that was not an issue.

[00:13:36] Speaker 00:
He didn't need to show evidence that he was exposed to trauma in service.

[00:13:40] Speaker 00:
He needed to show that he had a nexus opinion.

[00:13:44] Speaker 00:
And the danger is highlighted here because Mr. Zottirella never got a chance to get a second review on appeal.

[00:13:52] Speaker 00:
The veterans, the board's statutory jurisdiction requires, I'm sorry,

[00:13:59] Speaker 00:
Yes, the board's jurisdictional statutes require one decision on appeal, and the court is precluded from finding de novo facts for this very reason.

[00:14:09] Speaker 00:
At a very late stage, for a veteran who had three different representatives who all presented different things to the board, who himself was pro se, is at a distinct disadvantage when the court conducts a de novo review

[00:14:26] Speaker 00:
And this court cannot review facts.

[00:14:28] Speaker 00:
So he's stuck without being able to prove his claim at all, really, because of the nature of when the facts were made and how the jurisdiction of each higher level addresses that.

[00:14:45] Speaker 04:
Let's hear from the VA.

[00:14:48] Speaker 04:
Yes.

[00:14:48] Speaker 04:
I'll say it one more time.

[00:14:55] Speaker 04:
Mr. Christy.

[00:14:57] Speaker 04:
You see the problem when actually the VA agrees or concedes or whatever that there was error.

[00:15:06] Speaker 01:
Yes, Your Honor.

[00:15:07] Speaker 01:
So the secretary at the Veterans Court conceded that there was error committed by the board.

[00:15:12] Speaker 01:
So the question remaining before the Veterans Court was whether that error committed by the board caused prejudice to Mr. Zottarella.

[00:15:19] Speaker 01:
Mr. Zottarella's position is that

[00:15:22] Speaker 01:
The board had to consider in the first instance whether its error, it did not know it was committing, caused prejudice to Mr. Zottirella, which makes no sense and would completely nullify this.

[00:15:33] Speaker 04:
No, but counsel says that he didn't know to provide all of the things that he should have provided in the atmosphere, the obligation of a veteran sympathetic regime.

[00:15:47] Speaker 04:
Shouldn't he have had another opportunity rather than saying,

[00:15:52] Speaker 04:
We're not going to look at it anymore.

[00:15:56] Speaker 01:
I'm sorry.

[00:15:56] Speaker 01:
I'm not sure I understand your honor.

[00:15:58] Speaker 04:
I'm trying to understand, now that we know that there was error, conceded error, and you're trying to decide whether it's harmless, and so counsel says it was harmful.

[00:16:09] Speaker 01:
So counsel made that argument at the Veterans Court, and the Veterans Court made a decision as a matter of fact, which Mr. Zadarella's counsel has just conceded.

[00:16:18] Speaker 01:
This court does not have jurisdiction to review the factual matter.

[00:16:21] Speaker 01:
that the Veterans Court determined no, Mr. Zottirella had actual knowledge and rejected the arguments presented to the Veterans Court that he lacked that knowledge.

[00:16:35] Speaker 01:
But this panel is absolutely bound by Newhouse and Milicic, which I also don't know how to pronounce.

[00:16:42] Speaker 01:
And Mr. Zottirella has not presented any arguments that would

[00:16:48] Speaker 01:
caused this Court to take an en banc review and to reconsider those, those decisions.

[00:16:55] Speaker 01:
And I believe before, mentioned by counsel this morning, he's never asked for an en banc review.

[00:17:02] Speaker 01:
So this is the first time he's even asserting that an en banc review is necessary to overturn Newhouse Malichick.

[00:17:10] Speaker 02:
He might petition for rehearing it, May.

[00:17:12] Speaker 02:
Pardon?

[00:17:13] Speaker 02:
He might petition for re-hearing a bank if this court issues its decision.

[00:17:17] Speaker 01:
Which would certainly be within his.

[00:17:19] Speaker 02:
He has the entitlement to do that.

[00:17:21] Speaker 01:
Right.

[00:17:21] Speaker 01:
I didn't mean to assert your honor that he somehow waived it.

[00:17:24] Speaker 01:
It's just this panel obviously is bound by it.

[00:17:27] Speaker 01:
And if he wants on-bank review, which is necessary in order to overturn those decisions, it's incumbent upon him to request it.

[00:17:35] Speaker 03:
How many times?

[00:17:37] Speaker 03:
How many times?

[00:17:38] Speaker 03:
Did he have an opportunity to present his case?

[00:17:42] Speaker 03:
When I look at a summary of what's happened through the years, he had many opportunities to prove his case.

[00:17:49] Speaker 03:
How many times?

[00:17:51] Speaker 01:
Your Honor, I would have to review exactly how many times I've... You need too many to count.

[00:17:57] Speaker 01:
Well, more than a few.

[00:17:58] Speaker 01:
Too many to remember.

[00:18:00] Speaker 01:
And importantly, that opportunity has still not been closed.

[00:18:04] Speaker 01:
Mr. Zotarella, should he come forward with new and material evidence that would prove this causal nexus, he may still come forward and present that and reopen his previously denied claim.

[00:18:15] Speaker 04:
When you say come forward, you mean before what, the BVA?

[00:18:18] Speaker 04:
regional office?

[00:18:20] Speaker 01:
I believe he would come forward at the regional office level, and then if denied, it would go.

[00:18:25] Speaker 01:
No, I'm sorry.

[00:18:27] Speaker 01:
If he wants to reopen this claim, I believe that's done at the board.

[00:18:30] Speaker 01:
I may have misspoken.

[00:18:31] Speaker 01:
But in any event, if he possesses new and material evidence that meets the standard, he can come tomorrow and present that to the VA and attempt to have his case reopened, which is

[00:18:47] Speaker 01:
Part of the reason why under 2111, this court can't do anything anyway, because this court is bound to look at whether or not any error would affect Mr. Zottarello's substantial rights.

[00:18:58] Speaker 01:
So the question is, does he have evidence that could substantiate the causal nexus between his hearing loss and his service?

[00:19:07] Speaker 01:
And he's not identified any.

[00:19:09] Speaker 01:
He's not made an attempt to identify any.

[00:19:11] Speaker 01:
He has stated, well, I could have collected this type of evidence, but he's not alleged that this type of evidence actually exists.

[00:19:18] Speaker 01:
So at the end of the day, whether it was harmless error at the Veterans Court level or harmless error here, there's no difference in his substantial rights.

[00:19:27] Speaker 01:
But Mr. Zottarelli is incorrect that 7261B and C, when read together, would preclude the Veterans Court from making factual determinations in the first instance.

[00:19:40] Speaker 01:
7261C discusses findings of facts made by the secretary, which would presume that the findings of facts were one, actually made, and two, were solely within the authority of the board to make.

[00:19:55] Speaker 01:
Findings of prejudice, as this court has held repeatedly, as the Supreme Court in Sanders has discussed,

[00:20:03] Speaker 01:
are not the type of findings that are solely delegated to the secretary at the board level or at the regional office level.

[00:20:16] Speaker 01:
Mr. Zotarella's second argument based on Mayfield is also not with merit.

[00:20:22] Speaker 01:
Mr. Zotarella contends that the Veterans Court ignored the Mayfield natural effects test, but that test

[00:20:29] Speaker 01:
was determined and decided by the Supreme Court in Sanders, in which the court said that while the Veterans Court may be able to continue to rely on generalized non-binding assumptions, those assumptions are non-binding and must be supported by case-specific evidence.

[00:20:51] Speaker 01:
So the Veterans Court still had the obligation to go through on a case-by-case basis in light of the record in front of it

[00:20:57] Speaker 01:
and make a determination as to prejudice.

[00:21:00] Speaker 01:
The Supreme Court rejected this mandatory framework that put the burden on the secretary to prove that an error was harmless and that obligated the court under certain situations to just assume that all errors had a natural effect of being prejudicial.

[00:21:25] Speaker 01:
I'm happy to address any other questions that the court has.

[00:21:28] Speaker 01:
Any more questions?

[00:21:29] Speaker 01:
Thank you.

[00:21:30] Speaker 01:
Otherwise, we respectfully request that the court dismiss for lack of jurisdiction or in the alternative affirmative.

[00:21:35] Speaker 04:
Thank you, Ms.

[00:21:36] Speaker 04:
Kapraski.

[00:21:44] Speaker 04:
Mr. DeHawkis.

[00:21:45] Speaker 00:
Yes, ma'am.

[00:21:46] Speaker 00:
Thank you.

[00:21:48] Speaker 00:
Couple things on, I'm sorry, one point on what the secretary argued.

[00:21:51] Speaker 00:
We never argued, as we said earlier, that the BVA needs to find harmless error, and that is reviewed.

[00:21:56] Speaker 00:
We argued simply that the basis for finding harmless error at the Veterans Court should be based on a fact that was already been determined by the board.

[00:22:08] Speaker 00:
Judge Laurie, you mentioned that there were many opportunities for Mr. Zottirella throughout here to prove his claim.

[00:22:13] Speaker 00:
But I would just reply to that, that he never had a meaningful opportunity to participate because he didn't know what he was supposed to tell the VA or give them.

[00:22:22] Speaker 04:
Well, I think we've now heard from the Secretary that if there's additional information, he can come in with it.

[00:22:29] Speaker 04:
Isn't that what's needed?

[00:22:31] Speaker 00:
Yes, ma'am.

[00:22:32] Speaker 04:
The only remedy that would do the Veteran any good?

[00:22:36] Speaker 00:
Yes, ma'am.

[00:22:36] Speaker 00:
Well, that's getting service connection.

[00:22:38] Speaker 00:
But if he were to present it today, his benefits would start today rather than however many years ago when he originally filed this claim.

[00:22:45] Speaker 00:
And he's losing out potentially on 10-plus years of back benefits and all of the other benefits that go along with that to include health care and some other things.

[00:22:55] Speaker 00:
Mayfield, I want to mention, and I apologize that this is at such a late stage, but I only read it last night on the plane ride over here.

[00:23:05] Speaker 00:
The Veterans Court issued a decision, Simmons v. Wilkie, docket 16-3039 on 20 September, and they confirmed that Mayfield and Vasquez-Flores, which we argued gives them the authority to apply a natural effects presumption, is still good law, and they established that they have that authority to do so under Sanders.

[00:23:33] Speaker 00:
And in my last minute,

[00:23:36] Speaker 00:
Despite the fact that the secretary asserted that Mr. Zottirella never told anybody yet what evidence he has or that he has evidence.

[00:23:47] Speaker 00:
However, when you look at Sanders, the appellant Simmons was in a similar situation, was not told what she needed to be present to reopen her claim or to prove her claim, I'm sorry,

[00:24:00] Speaker 00:
And the Supreme Court said, given the uncertainties, we believe it is appropriate to remand this case so the Veterans Court can decide whether reconsideration is necessary.

[00:24:10] Speaker 00:
It's an analogous factual situation where there was some evidence for and against.

[00:24:16] Speaker 00:
And I would just also like to point out that the Veterans Court jurisdiction requires that the benefit of the doubt apply in all cases, including under the harmless error analysis.

[00:24:28] Speaker 00:
That may or may not apply in this case, given the court's factual determination.

[00:24:33] Speaker 00:
But when the court exceeds its jurisdiction, its ruling cannot stand.

[00:24:38] Speaker 00:
And so we urge this court to overturn the decision and send it back for the court to apply.

[00:24:48] Speaker 00:
Thank you.

[00:24:49] Speaker 04:
Thank you.

[00:24:51] Speaker 04:
Thank you both.

[00:24:52] Speaker 04:
The case is taken under submission.