[00:00:00] Speaker 01:
Our next case for argument is 24-1299, Bush versus Collins.

[00:00:05] Speaker 01:
Mr. Dohakis, please proceed.

[00:00:09] Speaker 03:
Morning, may I please the court?

[00:00:10] Speaker 03:
On behalf of Ms.

[00:00:11] Speaker 03:
Bush, I want to thank this court for the opportunity to present her appeal.

[00:00:15] Speaker 03:
This appeal asked the court to interpret 38 CFR 3.302b and determine whether the Veterans Court applied the correct interpretation.

[00:00:24] Speaker 03:
This appeal centers really on four words, shown by the evidence.

[00:00:29] Speaker 03:
The Veterans Court misinterpreted the regulation when it permitted inferences to take the place of an evidentiary showing.

[00:00:36] Speaker 02:
The regulation provides them- Are you arguing that this regulation requires direct evidence and circumstantial evidence isn't sufficient?

[00:00:47] Speaker 03:
I am not.

[00:00:49] Speaker 02:
And the reason for that is- Well, if that's the case, then why isn't that's what's happening here?

[00:00:54] Speaker 02:
There's circumstantial evidence in the form of what they relied on that this veteran was depressed and unhappy because his wife was cheating on him, right?

[00:01:06] Speaker 02:
And they use that to make the ultimate factual finding, drawing the inference that you seem to object to, that there was a reason other than mental unsoundness.

[00:01:19] Speaker 02:
And I don't really understand your argument unless it says you can't rely on circumstantial evidence to make a factual finding.

[00:01:28] Speaker 03:
That is our argument, Your Honor.

[00:01:30] Speaker 02:
And when you look at the regulations... When you just said you couldn't, or that you could rely on circumstantial evidence, are you now saying that in order for the VA to have displaced the presumption of mental and soundness here, there would have had to have been something from the veteran or some specific statement that said,

[00:01:49] Speaker 02:
And this is very sad and very tragic.

[00:01:52] Speaker 02:
And I don't mean to make light of any of this, because this is a very difficult issue.

[00:01:56] Speaker 02:
And frankly, the regulation seems to me to be out of step with our kind of modern thinking about death by suicide.

[00:02:03] Speaker 02:
But nonetheless, we're not arguing about whether the regulation is valid or not.

[00:02:07] Speaker 02:
The regulation says, if there is evidence showing an adequate motive

[00:02:15] Speaker 02:
for the suicide, then the presumption of mental soundness can be displaced, right?

[00:02:20] Speaker 02:
I didn't put it directly, but we know what we're talking about.

[00:02:23] Speaker 02:
And I think your argument is that evidence has to be direct evidence in the form of maybe the veteran left a suicide note.

[00:02:32] Speaker 02:
Maybe he told one of his friends.

[00:02:34] Speaker 02:
Maybe he told his therapist.

[00:02:36] Speaker 02:
I'm going to kill myself because my wife is cheating on me.

[00:02:39] Speaker 02:
Is that your position that there has to be something that direct?

[00:02:42] Speaker 03:
That is our position, Your Honor.

[00:02:44] Speaker 02:
But that goes against all normal rules of evidence and fact-finding and the like, where we always allow inferences to be made from circumstantial evidence.

[00:02:55] Speaker 02:
That's particularly probably true in a case like this, where somebody may not leave a suicide note, may not consult with somebody.

[00:03:03] Speaker 02:
In fact, that's probably what's going to happen more likely or not.

[00:03:06] Speaker 02:
What is there in the language of that regulation that suggests it has to be direct evidence, not circumstantial evidence?

[00:03:13] Speaker 03:
Well, as we said, Your Honor, adequate motive, no adequate, sorry, no reasonable adequate motive for suicide is shown by the evidence.

[00:03:22] Speaker 02:
Right, but you want to interpret evidence to exclude circumstantial evidence.

[00:03:28] Speaker 03:
I do, Your Honor, yes, because there has to be some linkage between

[00:03:32] Speaker 03:
the act of suicide in some motive.

[00:03:35] Speaker 03:
It has to be shown.

[00:03:36] Speaker 02:
But in your view, circumstantial evidence can never show that?

[00:03:41] Speaker 02:
I mean, I find this position very, I mean, I understand you're trying to do your best for your client.

[00:03:46] Speaker 02:
But we allow circumstantial evidence in criminal cases that can result in, you know,

[00:03:54] Speaker 02:
imprisonment for life or in some states, death.

[00:03:58] Speaker 02:
If circumstantial evidence is allowed in those cases, why is it not allowed to rebut a presumption of mental unsoundness?

[00:04:06] Speaker 03:
I can't speak for the criminal aspect, Your Honor, because this particular finding is controlled by this regulation.

[00:04:13] Speaker 02:
And the words of the Secretary... Can you speak to why you think the word evidence, which has a common customary meaning in our legal tradition, in this one instance, because I'm pretty sure you would not argue this in other areas, because you would like to rely on circumstantial evidence, why in this one you read evidence as direct evidence, not circumstantial evidence?

[00:04:36] Speaker 03:
Because of the verb that's attached to it, Your Honor, is that it's shown by evidence.

[00:04:41] Speaker 03:
And we think that a showing of evidence requires direct evidence as opposed to circumstantial.

[00:04:48] Speaker 03:
And part of the reason for that is, as you indicated, the seriousness of what's happening here.

[00:04:55] Speaker 03:
Often with suicide, and of course, this is decades after this regulation was written, we have a clear understanding of what is going on.

[00:05:05] Speaker 03:
or we don't have a clear understanding of why people are doing what we're doing.

[00:05:09] Speaker 02:
What we know is that you and all of the veterans advocates should get together and petition the VA to change this rule because, frankly, it doesn't seem to match up with our current understanding of death by suicide.

[00:05:21] Speaker 02:
I mean, just the fact that he may have been unhappy because his wife was cheating on him doesn't mean he wasn't still mentally unsound.

[00:05:30] Speaker 02:
They seem to actually go together.

[00:05:32] Speaker 02:
But we're stuck with the regulation we have, not the regulation you'd like us to have.

[00:05:37] Speaker 03:
Well, I think that the regulation that we do have, Your Honor, fits in this situation and supports, at least at the Veterans Court.

[00:05:45] Speaker 02:
Can I just ask you very succinctly?

[00:05:49] Speaker 02:
If we interpret evidence to include direct and circumstantial evidence, then the Veterans Court has properly interpreted this and we should affirm, right?

[00:05:59] Speaker 03:
If it includes circumstantial evidence, then I believe you're right, Your Honor.

[00:06:06] Speaker 03:
The Veterans Court applied a correct interpretation.

[00:06:08] Speaker 01:
And I just want to clarify something for the record for Mrs. Bush's sake.

[00:06:13] Speaker 01:
There's absolutely no evidence anywhere that she cheated on her husband, correct?

[00:06:16] Speaker 01:
None at all.

[00:06:17] Speaker 01:
It was part of his mental unsoundness that he

[00:06:20] Speaker 01:
created this fiction in his mind, correct?

[00:06:23] Speaker 03:
That's correct.

[00:06:23] Speaker 01:
I just want to put that on the record for her sake.

[00:06:25] Speaker 03:
Right.

[00:06:25] Speaker 03:
And she, of course, denied it at the time and continues to deny that she was ever unfaithful.

[00:06:30] Speaker 03:
And we also know that there, at least from the findings of the VA, that were not disputed, there's no evidence linking

[00:06:40] Speaker 03:
His suicide to the fact that he shot her or that she that he thought that she committed adultery It was all and again it was all Suggested as in the terms of the board on page 65 of the appendix The evidence suggested that this could have been an adequate motive for a suicide when in fact the facts and I know the court doesn't look at facts or facts of law, but the facts are

[00:07:04] Speaker 03:
showed that he came to the place with a suicide note already prepared.

[00:07:09] Speaker 03:
She said that moments after she shot him, she looked up and then he killed himself.

[00:07:13] Speaker 03:
So this suicide note where he talked about wanting to die was already done, prepared, the idea was already formed, and he just followed through with it.

[00:07:22] Speaker 03:
So everything that happened after they met up again after his discharge

[00:07:27] Speaker 03:
had really nothing to do with his ideas or his desire to kill himself.

[00:07:34] Speaker 00:
One of the important things here for the students in this room to know is about our jurisdiction and how limited it is.

[00:07:41] Speaker 00:
Could you tell them about our jurisdiction?

[00:07:44] Speaker 03:
Yes, Your Honor.

[00:07:45] Speaker 03:
So within, at least from the Veterans Court, the court looks only at questions of law and does not look at, does not review fact finding or facts to law.

[00:07:55] Speaker 03:
However, if there are undisputed facts to the law, then the court would look at that as a legal determination.

[00:08:02] Speaker 03:
And at least in this case, we are not necessarily getting to that because our position is that the wrong law was applied.

[00:08:10] Speaker 03:
And if that's true, then we are asking the court to remand it so that the Veterans Court, potentially the board, would have to correctly apply the law.

[00:08:20] Speaker 00:
It's hard in some of these cases because we can't review facts.

[00:08:23] Speaker 00:
And we can't review application of law to facts.

[00:08:25] Speaker 00:
And all we can do is look at the law by jurisdiction.

[00:08:30] Speaker 00:
We just don't have power to do anything else, especially in a sympathetic case like this.

[00:08:35] Speaker 00:
Can I ask you something else?

[00:08:36] Speaker 00:
I was looking at, considering your legal argument on the interpretation of the regulation, and under 3.303B, it does say, whether per, actually it's B2, it says the act of suicide or bona fide attempt is considered to be evidence of mental unsoundness.

[00:08:58] Speaker 00:
Is that circumstantial or direct evidence?

[00:09:03] Speaker 00:
Well, I think I don't- Just that sentence alone because I'm looking at the meaning of the word evidence is used in that sentence.

[00:09:10] Speaker 03:
I think that would be presumptive evidence, Your Honor.

[00:09:14] Speaker 03:
I think that that's a third category.

[00:09:16] Speaker 03:
Because if you continue reading the last part of that next sentence, the act will be considered to have resulted, the act being suicide, to have resulted from mental and soundness.

[00:09:25] Speaker 03:
So this is actually a presumptive evidence, which is a different category, I think.

[00:09:28] Speaker 00:
It's different than circumstantial.

[00:09:30] Speaker 03:
Than circumstantial, or even direct.

[00:09:31] Speaker 03:
Because with a presumption, you don't need any evidence to make that fact-finding, the law does it for us.

[00:09:45] Speaker 03:
So I do want to just, I still have some time here before my rebuttal, but I do want to hit on the Secretary's alternative basis for affirmance.

[00:09:56] Speaker 03:
We believe that that would be premature, as we indicated in our briefing.

[00:10:01] Speaker 03:
The correct application of law needs to be done before we can move on to whether there was a condition that caused the mental unsoundness.

[00:10:12] Speaker 03:
When we look at the timing of this, he left the military on March 28th.

[00:10:17] Speaker 03:
April 4th is when he killed himself and tried to kill his wife.

[00:10:21] Speaker 03:
And so the timing of that, the fact that the mental unsoundness was the cause of his suicide, and the plethora of evidence of his treatment.

[00:10:29] Speaker 03:
And as the dissent from the Veterans Court pointed out, there was a diagnosis of a potentially psychosis, which would be a presumptive condition.

[00:10:38] Speaker 03:
If his suicide was, in fact, mental unsoundness, then this would need to go back at least to the Veterans Court, but probably to the board.

[00:10:46] Speaker 03:
If there are no other questions, I'll reserve the remainder of my time.

[00:10:50] Speaker 01:
Mr. Parker.

[00:11:14] Speaker 03:
May it please the Court.

[00:11:15] Speaker 03:
The Veterans Court's decision to be affirmed for two overarching reasons.

[00:11:19] Speaker 03:
First, the Veterans Court did not commit legal error in interpreting section 3.302.

[00:11:24] Speaker 03:
And second, even if it did, there's an alternative basis for affirming the Veterans Court's decision, which wasn't addressed in Ms.

[00:11:30] Speaker 03:
Bush's opening brief or meaningfully in her reply brief, which is that any error wasn't outcome determinative because there needs to be a service-connected disability in addition to there being mental unsoundness.

[00:11:45] Speaker 03:
to allow for benefits under these circumstances under this court's precedent, Dolorosa.

[00:11:53] Speaker 03:
So I'll start with... So I have a question.

[00:11:56] Speaker 01:
She's getting benefits, correct?

[00:12:00] Speaker 03:
She's now getting benefits, that's correct.

[00:12:01] Speaker 01:
So she's receiving benefits.

[00:12:04] Speaker 01:
Correct.

[00:12:04] Speaker 01:
So how could you dispute whether his unsoundness is service-connected?

[00:12:09] Speaker 01:
She's getting benefits.

[00:12:10] Speaker 03:
She's getting benefits now based on a 2012 board decision, which in turn was based on new material evidence.

[00:12:17] Speaker 03:
So.

[00:12:18] Speaker 01:
Well, the new material evidence had nothing to do with service connection.

[00:12:21] Speaker 01:
It had only to do with a psychiatrist that submitted evidence, right?

[00:12:26] Speaker 01:
What did it have to do with service connection?

[00:12:28] Speaker 03:
The new material evidence.

[00:12:29] Speaker 03:
So I'm looking at the decision.

[00:12:33] Speaker 03:
For the students' sake.

[00:12:35] Speaker 01:
So she's receiving benefits, and the US government has decided

[00:12:38] Speaker 01:
she is entitled to benefits because her husband shot her four times and committed suicide and in part of that decision includes that his mental unsoundness was related to his time in service correct or she would not be receiving benefits now so there is service connection has been

[00:12:55] Speaker 01:
established sufficient, she's now receiving benefits, correct?

[00:12:59] Speaker 03:
She's receiving benefits based upon this 2012 decision, that's correct.

[00:13:03] Speaker 01:
And so service connection has been established or she could not be getting benefits.

[00:13:08] Speaker 03:
Well, it has as of 2012, that's right.

[00:13:11] Speaker 01:
And it has as of 2012, it's not like something happened in 2012.

[00:13:14] Speaker 01:
We're talking about a man who in 1974, is that right?

[00:13:17] Speaker 01:
Yes, ma'am.

[00:13:19] Speaker 01:
Shot his wife four times, four days after getting out of service?

[00:13:22] Speaker 03:
Within a week, yes, ma'am.

[00:13:23] Speaker 01:
Shot his wife four times trying to kill her,

[00:13:25] Speaker 01:
then committed suicide.

[00:13:28] Speaker 03:
Correct.

[00:13:29] Speaker 01:
And in 2008, I think it was, is that correct?

[00:13:31] Speaker 03:
2012 was the decision, and it dated back to 2008.

[00:13:35] Speaker 01:
Because that's when she filed a petition and said, I'm entitled to benefits.

[00:13:41] Speaker 01:
So I don't understand your service-connected argument at all, because the government has determined that his suicide was, in fact, service-connected now because there's benefits being given.

[00:13:54] Speaker 03:
So I'm looking at Appendix 119, Your Honor, which is the 2012 board decision, which says, although the independent medical opinion is not conclusive as to whether this veteran's in-service depressive disorder was a factor in his suicide, the finding of a depressive disorder in service is sufficient when combined with CMI's opinion that the veteran was suppressed at the time of his suicide to warrant a determination that the precipitating mental sadness is service-connected.

[00:14:20] Speaker 01:
And so that is based largely on the fact that he had

[00:14:23] Speaker 01:
noted depression during

[00:14:32] Speaker 03:
board in 1975 found was that that depressive condition was a result of drug abuse.

[00:14:39] Speaker 03:
So the board found in 1975 that that wasn't service-connected.

[00:14:42] Speaker 03:
And the question for this court, because this is a Q case, I don't think this came up during the opening argument, clear and unmistakable error is the framework that the court's looking at this through and what the Veterans Court looked at this through.

[00:14:54] Speaker 03:
It's specific.

[00:14:55] Speaker 01:
Just to be clear, the

[00:14:56] Speaker 01:
The VA has already decided that what they did in 74 was an error, or they wouldn't be giving her benefits.

[00:15:01] Speaker 01:
Not clear, no mistake of Blair.

[00:15:02] Speaker 01:
I get you.

[00:15:03] Speaker 01:
My standard of review on whether it has to go back to an earlier point in time is much higher.

[00:15:08] Speaker 01:
But it is true, correct, that the VA has already decided that their denial of her benefits in 1974 was, in fact, a mistake, in part based on the new evidence that was submitted, but it was a mistake, that the woman, had she had all the evidence

[00:15:23] Speaker 01:
in 1974 that she had in 2008, she'd be getting benefits.

[00:15:28] Speaker 03:
I agree with you on this, Your Honor.

[00:15:31] Speaker 01:
Doesn't that make you really sad?

[00:15:33] Speaker 01:
Makes me really sad.

[00:15:34] Speaker 02:
Of course.

[00:15:36] Speaker 02:
Of course.

[00:15:36] Speaker 02:
It's really sad.

[00:15:39] Speaker 02:
I don't understand why you're spending so much time on the alternative basis for affirmance and not address

[00:15:45] Speaker 02:
It was very clear from our opening discussion colloquy that we really weren't very interested in that Why I mean if the legal argument is that this phrase when it says evidence means only direct evidence What's your response to that?

[00:16:07] Speaker 03:
I did start with fairness and I got questions about second part.

[00:16:10] Speaker 03:
I was trying to address them.

[00:16:11] Speaker 03:
We shouldn't have a doubt

[00:16:15] Speaker 03:
He asked for it.

[00:16:18] Speaker 02:
When we're at law schools, you have to be careful about what you say.

[00:16:22] Speaker 02:
We like to demonstrate the full range of questions and advocacy.

[00:16:28] Speaker 02:
I mean, isn't it true that evidence throughout the VA system can be both direct and circumstantial evidence?

[00:16:35] Speaker 03:
Yes, it is true.

[00:16:38] Speaker 03:
And in a case like this, where the issue is suicide, that becomes especially important because

[00:16:45] Speaker 03:
As some of the questions suggested, there often will not be direct evidence.

[00:16:49] Speaker 03:
In this case, the 1975 board did discuss statements from Mrs. Sheppard.

[00:16:56] Speaker 03:
It discussed a police report.

[00:16:59] Speaker 03:
So it was looking at evidence to make its conclusion.

[00:17:03] Speaker 03:
Ultimately, in the Q context, the way that evidence was weighed is beyond the scope of the review and beyond the scope of this court's jurisdiction.

[00:17:11] Speaker 02:
Can you tell me why you think this regulation makes any sense whatsoever, given our modern understanding of suicide?

[00:17:21] Speaker 02:
I mean, is it all suicide, except maybe out of the, like, you know, death with dignity stuff, out of mental unsoundness?

[00:17:30] Speaker 03:
I'll try to give some insight into how the regulation is supposed to work as I understand it.

[00:17:35] Speaker 03:
What it starts by distinguishing is between intentional acts and non-intentional acts.

[00:17:39] Speaker 03:
And the framework it sets out is, if there's not adequate requisite mens rea, then the act is not intentional.

[00:17:49] Speaker 01:
You mean like you were cleaning your weapon and it went off?

[00:17:51] Speaker 01:
Well, that's not suicide.

[00:17:52] Speaker 03:
I don't think it's just that.

[00:17:53] Speaker 03:
I think it could be a situation where somebody lost touch with reality.

[00:17:57] Speaker 03:
The phrase that the regulation uses is, did the veteran understand the consequences of his conduct, or was he overcome by an irresistible impulse

[00:18:07] Speaker 02:
I mean, I think that's the problem, right?

[00:18:09] Speaker 02:
Isn't it?

[00:18:10] Speaker 02:
And I know we're not here to do anything about this, but you can understand the consequences of, you know, death by suicide, but still be mentally under sound, can't you?

[00:18:22] Speaker 02:
But in your view, that's what they've decided here.

[00:18:26] Speaker 02:
I'm not suggesting we can do anything about it.

[00:18:31] Speaker 02:
But it's in the whole part of the regulations that don't allow veterans to get benefits based upon their own

[00:18:43] Speaker 02:
misconduct.

[00:18:45] Speaker 02:
That's right.

[00:18:45] Speaker 02:
Which is a little bit hard to understand death by suicide as that kind of misconduct anymore, although in the time it might have been.

[00:18:54] Speaker 02:
Yes.

[00:18:54] Speaker 01:
And so if I thought that the board's 2008

[00:19:00] Speaker 01:
fact findings were incorrect to the extent that they did not give her her benefits going back to when she was shot four times and her husband committed suicide.

[00:19:07] Speaker 01:
Would I be able to review that?

[00:19:09] Speaker 01:
Because I do think that they should have given her benefits back to 1975 or before.

[00:19:12] Speaker 03:
If you think the board's fact findings were incorrect, the court doesn't have jurisdiction to review fact findings under a 7292D.

[00:19:21] Speaker 03:
So if there are no further questions, we ask the court.

[00:19:28] Speaker 03:
Thank you, Mr. Carson.

[00:19:36] Speaker 03:
just a couple points your honor to judge Hughes's point I do want to

[00:19:47] Speaker 03:
to clarify a bit on my answer to your question about circumstantial versus direct.

[00:19:51] Speaker 03:
I think that although circumstantial, if the court finds that circumstantial evidence is allowed, it still needs to be grounded in something.

[00:19:59] Speaker 03:
And here it was the way our reading of the case is that it was nearly pure speculation on the part of the board that he wanted to- That would be us evaluating an application of law to fact.

[00:20:11] Speaker 01:
that we're still out there on jurisdiction.

[00:20:13] Speaker 01:
Mr. Kahakis, you have an incredibly sympathetic case.

[00:20:16] Speaker 01:
I understand.

[00:20:17] Speaker 01:
But the legal arguments are nearly frivolous.

[00:20:20] Speaker 03:
Well, I would just point again to the court to the rest of the regulation C2, subsection C2, where it talks about reasonable doubt under 3.102.

[00:20:32] Speaker 03:
And 3.102 does say specifically that pure speculation is not a reason to deny the application of this law.

[00:20:40] Speaker 02:
That's all stuff for the RRO and the board and the Veterans Court down, not us.

[00:20:45] Speaker 02:
Right, Your Honor.

[00:20:46] Speaker 02:
You can't determine the factual basis.

[00:20:48] Speaker 02:
No, I... And you're not arguing that they misinterpreted reasonable doubt.

[00:20:53] Speaker 03:
We are not, Your Honor.

[00:20:55] Speaker 03:
But it does play a part in assessing what the evidence shows, whether it's circumstantial or direct evidence, as we suggest.

[00:21:03] Speaker 03:
And in closing, I just want to thank the court for their sympathy to Mrs. Bush.

[00:21:08] Speaker 03:
I know she's very appreciative.

[00:21:11] Speaker 01:
I thank both counsel, and this case is taken under submission.