[00:00:01] Speaker 04:
Here we are.

[00:00:01] Speaker 04:
Okay.

[00:00:03] Speaker 04:
20, 1892.

[00:00:06] Speaker 04:
Hayes against McDonough.

[00:00:10] Speaker 04:
Okay.

[00:00:11] Speaker 04:
Mr. Dojaskis.

[00:00:14] Speaker 04:
And you may remove your mask if you wish while you're arguing.

[00:00:20] Speaker 00:
Thank you, Your Honor.

[00:00:25] Speaker 04:
May I proceed?

[00:00:27] Speaker 00:
Good morning and may it please the Court.

[00:00:29] Speaker 00:
On behalf of Mr. Hayes, I do want to thank the Court for this opportunity to present his appeal.

[00:00:34] Speaker 00:
I will focus my argument today on three points.

[00:00:37] Speaker 00:
First, I will discuss how the Veterans Court's definition of exposure is legally erroneous.

[00:00:43] Speaker 00:
Second, I will explain why the law prohibits the Board from acting as its own expert witness and instead requires the Board to rely upon competent

[00:00:52] Speaker 00:
expert evidence when analyzing scientific information.

[00:00:56] Speaker 00:
And finally, I will discuss why the duty to assist requires the board to obtain the entire report at issue here.

[00:01:03] Speaker 00:
But first I would like to highlight just a couple pertinent facts.

[00:01:07] Speaker 00:
The government does acknowledge that herbicides that were last used in the Korean DMZ in December of 1969

[00:01:14] Speaker 00:
The VA accepts through its regulations that herbicides can remain in the environment because they extended the time period for presumptive exposure until August of 1971.

[00:01:25] Speaker 03:
Is your entire exposure theory, I get it that it's based on residuals, but is it just that it was within six weeks of the cutoff?

[00:01:35] Speaker 00:
No, Your Honor.

[00:01:35] Speaker 00:
The premise of the argument is that Mr. Hayes presented evidence that the half-life of the herbicides

[00:01:44] Speaker 00:
exist and remain in the environment up to at least nine years after the last use, half of the herbicides would have been dissipated, but still at least half, we think, remained in the environment.

[00:02:00] Speaker 00:
The problem is that the Veterans Court's definition that they relied upon to deny his claim and find that he was not exposed required direct contact or

[00:02:16] Speaker 00:
handling of the herbicides.

[00:02:18] Speaker 03:
My concern is that Congress did make a decision based on the belief that residuals could exist, and they set a deadline.

[00:02:29] Speaker 03:
And it just feels like you're just asking us to extend that congressionally imposed deadline.

[00:02:35] Speaker 00:
Not at all, Your Honor.

[00:02:36] Speaker 00:
What we're asking is that in case-specific situations that

[00:02:41] Speaker 00:
experts review the evidence, review the situation, and determine based on the characteristics of the chemical and the particulars of that veteran's service whether exposure could or did happen.

[00:02:58] Speaker 02:
I'm having the same problem that Judge O'Malley is having.

[00:03:01] Speaker 02:
It seems to me that your evidence in this case was solely limited to the fact that he was in the DMZ and the DMZ was sprayed, which is exactly the same sort of evidence that leads to the presumption.

[00:03:16] Speaker 02:
And if there were something more here, perhaps you would have proved actual causation, but I'm wondering how it is that the same evidence that leads to the presumption can also lead to

[00:03:31] Speaker 02:
a conclusion of actual exposure.

[00:03:35] Speaker 00:
Your Honor, I would just ask that you consider a similar situation with radiation exposed veterans, where there are presumptions that certain activities expose veterans to radiation, but the regulation also recognizes, and I'm looking at 38 CFR 3.311, that in some instances,

[00:03:56] Speaker 00:
the amount of radiation that they could have been exposed to would entitle them to the benefit of becoming a radiation-exposed veteran.

[00:04:06] Speaker 00:
We're not asking the court certainly to expand the presumptive period even by six weeks, not even a day.

[00:04:14] Speaker 00:
All we're asking is that in this situation, Mr. Hayes presented

[00:04:19] Speaker 02:
evidence that some residual... But it's the same evidence that would support the presumption.

[00:04:25] Speaker 02:
There's nothing additional, right?

[00:04:27] Speaker 02:
I mean, for example, if he hit

[00:04:29] Speaker 02:
come in and said, I served in this town.

[00:04:34] Speaker 02:
This was sprayed three months before I went there.

[00:04:40] Speaker 02:
The residuals would still be there.

[00:04:42] Speaker 02:
I walked around the town.

[00:04:45] Speaker 02:
Sure, that would be different.

[00:04:46] Speaker 02:
But the problem I'm having is he didn't say anything like that.

[00:04:50] Speaker 02:
He just said, I served in the DMZ.

[00:04:53] Speaker 02:
The DMZ was sprayed.

[00:04:55] Speaker 02:
That's the same thing that leads to the presumption.

[00:04:57] Speaker 00:
Yes, in large degree it is, Your Honor.

[00:05:00] Speaker 00:
But again, I think in this situation, certainly some of the facts of his particulars are not in the record.

[00:05:06] Speaker 00:
That's the problem.

[00:05:08] Speaker 00:
Yes, Your Honor.

[00:05:09] Speaker 00:
But our problem with the Veterans Court's decision is how they determined exposure was not proven by requiring handling or direct contact.

[00:05:18] Speaker 03:
And we just don't think that the law... But how are we to say that that is harmful, even if we

[00:05:25] Speaker 03:
disagree with that definition, because when there was no evidence.

[00:05:29] Speaker 03:
I mean, your only evidence was a study from Missouri over a four-year period in the eighties that the Veterans Court found had no connection to his actual time or location of service.

[00:05:42] Speaker 03:
So the problem is that there was just no evidence other than, as Judge Dyke says, what would lead to the presumption.

[00:05:52] Speaker 00:
Yes, Your Honor.

[00:05:53] Speaker 00:
I think that that's

[00:05:55] Speaker 00:
I think that that's more or less correct.

[00:05:57] Speaker 00:
But again, I think that our biggest problem is just how the Veterans Court defined exposure to be limited to contact or handling.

[00:06:05] Speaker 00:
And certainly by the way that the VA and Congress has allowed exposure to occur after the use in Vietnam case, obviously there was much more use for years, that kind of definition for exposure is simply not in accordance with the law.

[00:06:22] Speaker 00:
I would like to point out, though, that even aside from the erroneous definition of exposure, the other two errors that the board committed and that the Veterans Court affirmed would provide relief to Mr. Hayes.

[00:06:42] Speaker 00:
Here, the board mistreated this evidence by acting as its own expert.

[00:06:48] Speaker 00:
In doing so, it determined that Mr. Hayes was not exposed to the herbicides.

[00:06:54] Speaker 00:
The board further erred by failing to recognize the VA's legal obligation to obtain the entire report.

[00:07:00] Speaker 00:
And instead of enforcing the board's legal obligations, the Veterans Court condoned the board's erroneous treatment and did so by allowing the board to act as its own expert.

[00:07:12] Speaker 00:
But just like the board is not competent to make findings that require medical training and knowledge, the board is not competent to make findings that require training and knowledge in chemicals and environmental science.

[00:07:25] Speaker 00:
And for this reason, we ask that the court endorse and expand the holding in Colvin v. Derwinsky and find that the board may not act as its own expert witness in any field, not just medical.

[00:07:38] Speaker 03:
I still, I'm having a hard time understanding how they did that when, when their conclusion was that there was just no evidence.

[00:07:46] Speaker 03:
And they, they, you keep saying that they required direct handling, but they, but they even said, or anything that would suggest that he came into direct contact, such as have been being there when it was being sprayed.

[00:08:00] Speaker 03:
But, but that was just an example.

[00:08:02] Speaker 03:
And then they went on to say that the only evidence was his location.

[00:08:08] Speaker 00:
Right, Your Honor.

[00:08:09] Speaker 00:
And that is evidence enough.

[00:08:11] Speaker 00:
And that is sufficient to prove exposure.

[00:08:17] Speaker 00:
And we rely on the facts that both Congress and the Secretary have expanded the time period after the last use, not when it was handled, not when it was sprayed, but when the residuals remained in the environment to allow exposure to exist.

[00:08:32] Speaker 03:
We've had plenty of cases where we've said, even after the period,

[00:08:37] Speaker 03:
The fact of residuals is a fact that can be relied upon, but it's not enough.

[00:08:43] Speaker 03:
I mean, it's one thing that is part of the entirety of the evidentiary consideration, but we've said it can't be the only consideration.

[00:08:54] Speaker 00:
And what distinguishes this case, Your Honor, I think, from those cases is that Mr. Hayes presented scientific evidence

[00:09:03] Speaker 00:
And it was an expert, excerpt, and it was incomplete, which is part of our argument here today.

[00:09:09] Speaker 00:
But it was additional evidence that spoke directly to the amount of chemicals that existed in the environment after exposure.

[00:09:19] Speaker 00:
And in the cases that I'm familiar with, and I'm not familiar with any

[00:09:23] Speaker 00:
any to date that have relied specifically on evidence such as this, it was the mere fact that there were residuals, I would agree is probably not enough.

[00:09:34] Speaker 00:
But when we combine that with scientific evidence that tends to explain or describe to the board how much actual chemical remained, then I think that that distinguishes it and requires the board to one, obtain the entire report, figure out because they did make a finding that it was incomplete

[00:09:53] Speaker 00:
and there was some missing information from the excerpt.

[00:09:56] Speaker 00:
And then to submit it to an expert to explain to the board, what does this all mean?

[00:10:02] Speaker 00:
What does this mean for Mr. Hayes when he was in the DMZ?

[00:10:05] Speaker 00:
How much exposure could he have experienced?

[00:10:10] Speaker 00:
How much chemicals remained in the environment?

[00:10:13] Speaker 00:
And was it enough to where we can be satisfied that he was or was not exposed?

[00:10:18] Speaker 00:
And that's not what happened here.

[00:10:19] Speaker 00:
Instead, the board

[00:10:21] Speaker 00:
acting again as its own expert, determined that this just didn't say anything.

[00:10:27] Speaker 00:
It didn't prove anything.

[00:10:28] Speaker 00:
One, because it was incomplete, and we acknowledge that.

[00:10:33] Speaker 00:
But the duty to assist then should have been triggered at that point to obtain the entire report.

[00:10:40] Speaker 00:
And then also the board

[00:10:47] Speaker 00:
And then also the board, again acting as an expert, determined that it just didn't give any information that was useful in their findings of fact.

[00:11:07] Speaker 00:
I point to, again, more vishanceki as controlling here, just as in Moore where the records were not obtained and the VA argued that they didn't have any obligation to look at them because they weren't relevant.

[00:11:23] Speaker 00:
this court very clearly held that until they actually reviewed the disputed records, they could not know what information was contained in them.

[00:11:31] Speaker 00:
And we argue that the excerpt provided sufficient information to at least trigger the duty to get all of those records and determine what was in it and whether or not it was pertinent and helpful to Mr. Hayes' claim.

[00:11:49] Speaker 00:
The secretary does argue that the records in Moore were claimant-specific, but I think that that is distinguishing and it overlooks the nature of the records in this case.

[00:12:02] Speaker 00:
The issue in Moore was a medical issue, so naturally the records would have been specific to the claimant and his medical situation.

[00:12:11] Speaker 00:
In this case, the primary issue is scientific in nature.

[00:12:16] Speaker 00:
So the records are potentially relevant because they contain information that speaks to the heart of the matter, which is, again, whether herbicides that have a half-life of at least nine years were present in the environment at the same time as Mr. Hayes.

[00:12:30] Speaker 00:
And I do want to emphasize again that this error is independent of any error the Veterans Court did or didn't make with regard to their definition of exposure.

[00:12:41] Speaker 00:
This is so because neither the Board nor the Veterans Court

[00:12:44] Speaker 00:
can adequately determine whether Mr. Hayes was exposed to herbicides until they obtained the entire HHS report and make such a finding.

[00:12:55] Speaker 00:
And this should, again, be based upon competent expert evidence that considers the report.

[00:13:02] Speaker 00:
So in sum, Mr. Hayes asked this court to find that the Veterans Court legally erred in allowing the board to act as its own expert

[00:13:10] Speaker 00:
where the board is not competent to provide such expert evidence.

[00:13:14] Speaker 00:
And we also ask the court to rule that because the entire HHS report contains information that speaks to the question of whether herbicides were present in the DMZ when Mr. Hayes was there, the Veterans Court also erred in finding that VA had no obligation to obtain the entire report.

[00:13:33] Speaker 04:
Okay.

[00:13:33] Speaker 04:
Thank you.

[00:13:34] Speaker 04:
We'll hear from the government.

[00:13:35] Speaker 04:
We'll save you rebuttal time.

[00:13:36] Speaker 00:
Thank you, Your Honor.

[00:13:39] Speaker 04:
Thank you, Mr. Yale.

[00:13:55] Speaker 01:
May it please the court?

[00:13:57] Speaker 01:
The heart of this appeal is a straightforward factual issue, whether or not Mr. Hayes came forth with... No, I don't think so.

[00:14:05] Speaker 02:
I think it's a legal issue.

[00:14:07] Speaker 02:
One question is whether the board's definition of exposure, I mean, the Veterans Court definition of exposure is too narrow.

[00:14:24] Speaker 02:
And it is too narrow, isn't it?

[00:14:26] Speaker 02:
I mean, you wouldn't have to show that you were actually present when it was being sprayed in the hypothetical I gave

[00:14:34] Speaker 02:
earlier where someone said it was sprayed three days before I went to this particular town and I walked around the town, that would perhaps be sufficient evidence to show exposure, even though it wouldn't lead to the presumption.

[00:14:50] Speaker 02:
So, I mean, the definition is kind of restrictive, isn't it?

[00:14:54] Speaker 01:
Well, with all due respect, Your Honor, I don't think that the definition was coming forth with

[00:15:01] Speaker 01:
a specific bar to any other evidence other than what was catalogued here.

[00:15:07] Speaker 01:
So they gave particular examples of how you can demonstrate actual exposure to herbicides, but they didn't say these are the only ways that you can do it.

[00:15:20] Speaker 01:
And so if, for example, Mr. Hayes came forth in the record with

[00:15:26] Speaker 01:
indications or evidence that, for example, he served in a unit that was constructing something and was digging in the soil, and there was evidence that there had been herbicides buried there at some point in time.

[00:15:41] Speaker 01:
I mean, that's direct evidence that you can point to that shows, you know, exposure to herbicides.

[00:15:47] Speaker 02:
But all we have here... So someone in that situation could recover even though

[00:15:53] Speaker 02:
He wouldn't benefit from the presumption.

[00:15:55] Speaker 01:
They can't benefit from the presumption because their service is outside the period.

[00:16:00] Speaker 01:
Correct.

[00:16:01] Speaker 01:
And they're not within the unit that the DOD has determined.

[00:16:04] Speaker 01:
But that kind of evidence would be sufficient.

[00:16:06] Speaker 01:
That kind of evidence would be sufficient, but the Veterans Court fairly read that the, the Veterans Court opinion cannot really be fairly read as restricting it to just, you know, those very, very specific evidence, those examples.

[00:16:22] Speaker 01:
But those are examples that the board has been faced with, the Veterans Court has been faced with.

[00:16:30] Speaker 01:
And so, for example, just as I was saying before, if there's a factual situation where the veteran can demonstrate that, then you can establish exposure for direct connection.

[00:16:47] Speaker 01:
Essentially, all that Mr. Hayes is pointing to is the same evidence that the DOD put forth and the VA considered in the DMZ regulation.

[00:16:57] Speaker 01:
And based upon that, they established this presumption.

[00:17:01] Speaker 03:
So would you agree with my statement before that the fact of residuals, the very fact that Congress relied upon in terms of setting the presumption, that the fact of residuals remains relevant even after the presumptive period?

[00:17:16] Speaker 01:
Well, I mean, it would be relevant and something to consider, but it doesn't get you where you need to go, at least upon this particular record.

[00:17:25] Speaker 03:
It's relevant but not sufficient.

[00:17:27] Speaker 01:
We think it would be, yes, relevant but not sufficient.

[00:17:31] Speaker 01:
And part of that is because

[00:17:34] Speaker 01:
Under under title eight.

[00:17:36] Speaker 01:
I mean you have to look at the veterans the facts and circumstances of the veteran service in here Just saying that there were herbicides sprayed in the DMZ and then I you know as the veteran was there afterwards That's essentially bringing in every veteran who served in that in Korea really in that period of time after the presumption and

[00:18:01] Speaker 01:
there's nothing there's nothing differentiating his service from anything else in congress is already provided the d m uh... you know that sort of the d a with the ability to craft the regulation and now with you know more recently with sort of the the actual d m c statue i mean they've set the period where they've determined that actual exposure has taken place is it your position that what the veterans court was doing and maybe it's language was a little

[00:18:31] Speaker 03:
looser than it should have been, but was setting out examples of things that would be sufficient, but they weren't saying that all of those things are necessary.

[00:18:41] Speaker 01:
Correct.

[00:18:42] Speaker 01:
That's exactly what we're saying.

[00:18:44] Speaker 01:
And there could be a situation if the Veterans Court had come forth with a rule of law that said, for example, residual exposure under no circumstances.

[00:18:56] Speaker 01:
There could be no factual situation where a veteran can come forth with evidence to demonstrate actual exposure.

[00:19:04] Speaker 01:
Some rule of law such as that may be at that point

[00:19:08] Speaker 01:
That's something that this court can review and is something that could possibly be reversed where, but that's not what they were doing here.

[00:19:16] Speaker 01:
They're just looking at this record and saying it's barren.

[00:19:19] Speaker 01:
It's barren of any evidence of actual exposure.

[00:19:22] Speaker 01:
And the Veterans Court is actually correct that what

[00:19:26] Speaker 01:
essentially is going on here is trying to expand the presumption because the fact that there's just a barren record here.

[00:19:33] Speaker 01:
So it's certainly not foreclosing in a different case on different evidence, the veteran coming forth with evidence that could establish based upon service in Korea after the presumptive period that you could establish a direct service connection.

[00:19:52] Speaker 03:
Can you think of anything other than your example of

[00:19:57] Speaker 03:
digging for construction or for burial or something other than digging in the soil?

[00:20:01] Speaker 03:
Can you think of any other example of what a veteran could show after the presumptive period?

[00:20:08] Speaker 01:
Well, if you put it into context, and as it was mentioned in the regulation when it was actually crafted, I mean, the spring here was in a relatively narrow area.

[00:20:18] Speaker 01:
I think they said it was essentially 350 yards across and essentially sort of to the south of the DMZ.

[00:20:26] Speaker 01:
And if, for example, the unit records show that the veteran was serving right where

[00:20:38] Speaker 01:
uh... there's evidence that spring was taking place or something like that but there's really no evidence even here i mean even sort of setting aside all of this and it wasn't you know it wasn't really material to the boards for the veterans court's decision the record here is is saying that the veterans served in dago which is you know i mean that's hundreds of miles from the d m c and so maybe what the veterans saying is they'd

[00:21:05] Speaker 01:
took trips or something closer into the DMZ.

[00:21:08] Speaker 01:
But there's just no evidence of anything in terms of his service in Korea that would show actual exposure.

[00:21:17] Speaker 01:
And just one point on sort of this study.

[00:21:22] Speaker 01:
First of all, that's a relative, you know, it was determined not to be relevant.

[00:21:26] Speaker 01:
So that's something the court

[00:21:28] Speaker 01:
cannot review.

[00:21:29] Speaker 02:
I'm not sure that's true.

[00:21:33] Speaker 02:
The question of relevancy is a legal question as well as a factual question.

[00:21:39] Speaker 01:
well but here it's it's relevance as determined by applying the duty to assist in whether or not the records need to be obtained but even setting aside even even assuming for purposes of this that there is jurisdiction here on page four of the reply brief it's uh... the mister haze indicates that they actually have the study uh... you know that

[00:22:04] Speaker 01:
The language here says Mr. Hayes provided that report's cover page and its above quoted page to VA, excerpting just those two of the report's 721 pages, essentially for the VA's convenience.

[00:22:20] Speaker 01:
Looking at that in the reply brief, it seems like Mr. Hayes already has this report.

[00:22:25] Speaker 01:
It's already been determined to be relevant just based upon

[00:22:28] Speaker 01:
you know that what was excerpt but how does the duty to assist kick in here to have the VA obtain this report that the veteran already has.

[00:22:38] Speaker 01:
It's already determined to be not relevant in that I mean there's clearly no reversible error based upon upon that given the fact that it's about you know it's one page about Missouri and whatnot it's not specific at all to Korea or the service there but we just think that there can't be any

[00:22:57] Speaker 01:
reversible error when it seems that they actually even have the report here.

[00:23:02] Speaker 01:
And so in front of the board, when the board said that this report was incomplete, Mr. Hayes could have provided the entire report or could have provided it to the Veterans Court to point to if there's anything in there that could possibly point to Korea and his service and actual exposure in Korea, then that could have been identified.

[00:23:26] Speaker 01:
And so if there's nothing further, we ask that the court either dismiss for lack of jurisdiction or affirm the decision of the Veterans Court.

[00:23:41] Speaker 04:
Thank you.

[00:23:42] Speaker 04:
Thank you, Mr. Yale.

[00:23:49] Speaker 04:
Mr. Delhagras.

[00:23:51] Speaker 00:
Thank you, Your Honor.

[00:23:52] Speaker 00:
So I want to start just by reading

[00:23:55] Speaker 00:
precisely what the veteran's court ruled.

[00:23:58] Speaker 00:
Nowhere does the record indicate that the veteran directly handled any herbicides, nor does the record suggest that the veteran could have come into direct contact with herbicides.

[00:24:12] Speaker 00:
And then they give an example such as being present while nearby or being sprayed or transported.

[00:24:18] Speaker 00:
There's no way, and we would assert that there's no way that this can be read as allowing exposure outside of direct handling or direct contact.

[00:24:31] Speaker 00:
The examples are examples that are consistent with direct contact.

[00:24:35] Speaker 00:
The Veterans Court did not say exposure such as direct handling.

[00:24:40] Speaker 00:
They said he did not directly handle it or come into direct contact.

[00:24:44] Speaker 00:
And that is really the problem that we have with their rules.

[00:24:49] Speaker 00:
The fact of residuals, I'm sorry, the secretary has seemed to be rejecting, although he stepped back a bit from that, that every veteran in Korea is unable to prove exposure just because there were residuals.

[00:25:09] Speaker 00:
And I would just reply that the law does allow anyone to prove exposure through the residuals.

[00:25:15] Speaker 00:
and the secretary's position seemed to be close to asking for a presumption of non-exposure.

[00:25:21] Speaker 00:
And again, his example was digging up barrels where they were buried, which again, really is leaning towards direct exposure to the chemicals themselves.

[00:25:33] Speaker 00:
And I cannot emphasize enough that the law itself allows for exposure even after the last use.

[00:25:41] Speaker 00:
So we ask that the veteran at this court reverse the Veterans Court's definition of exposure and also find that the duty to assist was not met.

[00:25:51] Speaker 00:
Thank you.

[00:25:52] Speaker 04:
Any more questions?

[00:25:53] Speaker 04:
No.

[00:25:54] Speaker 04:
Any more questions?

[00:25:55] Speaker 04:
No.

[00:25:55] Speaker 04:
Thank you.

[00:25:56] Speaker 04:
Thank you both.

[00:25:58] Speaker 04:
The case is taken under submission.

[00:26:00] Speaker 04:
The court will stand in recess.

[00:26:10] Speaker 04:
We'll take a short few steps.