[00:00:00] Speaker 01:
The first case this morning is 23-2363, Davis v. Collins.

[00:00:08] Speaker 01:
Nice to see you again.

[00:00:10] Speaker 05:
Hello, Judge Proce.

[00:00:11] Speaker 05:
Good to see you too.

[00:00:13] Speaker 05:
All right.

[00:00:15] Speaker 05:
Good morning.

[00:00:16] Speaker 05:
Kenny DeHawkis for the appellant.

[00:00:17] Speaker 05:
On behalf of Mr. Davis, I want to thank this court for the opportunity to present his appeal.

[00:00:22] Speaker 05:
Well, you're here today because, once again, the Veterans Court has ignored precedent on constructive possession.

[00:00:28] Speaker 05:
The standard as announced in Lange and Eusebio is that the board must consider any evidence that predates the decision, is within the secretary's control, and is relevant and reasonably connected to the veteran's claim.

[00:00:43] Speaker 05:
I want to emphasize that the standard is relevant and reasonably connected to the claim.

[00:00:48] Speaker 05:
And I think a lot of where the court went wrong is in misconstruing that phrase.

[00:00:54] Speaker 05:
The Veterans Court ran a foul of a standard when it started asking whether it would be reasonable that a specific adjudicator would have investigated, gathered, or put evidence in the record.

[00:01:05] Speaker 05:
But here, at least with two other pieces of evidence, Mr. Davis told the board before their decision of the existence of the evidence and why he thought it was relevant and reasonably connected to his claim.

[00:01:18] Speaker 02:
Counsel, why is this not a classic example of a case applying the law to the backs?

[00:01:24] Speaker 05:
No, Your Honor.

[00:01:26] Speaker 05:
I know that the Secretary argued that, but what we see here is that the Veterans Court is layering on additional requirements for evidence in order to be constructively part of the record.

[00:01:38] Speaker 05:
For example, the Veterans Court with, again, two of the pieces of evidence, the GAO report and the letters

[00:01:46] Speaker 05:
that his attorney sent to the board.

[00:01:49] Speaker 05:
And I'm looking on page 11 of the appendix.

[00:01:53] Speaker 05:
Prior to Mr. Davis's 2019 out-of-time submission, he did not mention the GEO report.

[00:02:00] Speaker 05:
And then on page 12, again, prior to the 2019 submission, there was nothing in the record mentioning irregular mailings or irregular mailings to his counsel.

[00:02:11] Speaker 05:
This is resurrecting, as we argued in our brief, a triggering principle that was rejected by Lang.

[00:02:17] Speaker 05:
There is no requirement in law that a veteran has to raise a specific argument before a specific time.

[00:02:23] Speaker 05:
The Veterans Court here stopped looking at the filing of a notice of disagreement for any kind of argument

[00:02:31] Speaker 05:
that would potentially raise to the board this evidence.

[00:02:36] Speaker 05:
But as we, again, we outlined in our brief, the statutes very clearly require the board to consider the entire record and apply all applicable laws at 7104A.

[00:02:47] Speaker 05:
This Court and Tom has talked in great length about the meaning of that and what are applicable links.

[00:02:53] Speaker 04:
Your argument is that evidence is reasonably connected to the claim if it's relevant.

[00:02:59] Speaker 04:
Not necessarily, Your Honor.

[00:03:01] Speaker 04:
I think- No, that's right.

[00:03:03] Speaker 04:
What meaning, how do you know if, just assume for purposes of argument, that this room contains all the evidence that is in the possession of the Veterans Administration, period, millions and millions of pieces of information.

[00:03:19] Speaker 04:
And let's assume that in that millions and millions of pieces of information, there are several very relevant, i.e.

[00:03:24] Speaker 04:
probative, of truth or falsehood of your Veterans claim.

[00:03:30] Speaker 04:
So out of that morass of information, there has to be some magnet, something that attracts somebody's attention to this piece of information to find it reasonably connected.

[00:03:43] Speaker 05:
Right, Your Honor.

[00:03:43] Speaker 05:
So I think that there's two ways we can look at this.

[00:03:46] Speaker 05:
Number one.

[00:03:46] Speaker 04:
Let me finish.

[00:03:47] Speaker 04:
I'm sorry?

[00:03:48] Speaker 04:
What's the magnet?

[00:03:50] Speaker 04:
And we know that the test, which has been around forever, right?

[00:03:55] Speaker 04:
the test that comes out of the two old VA cases, and then when Lang and Subia were adopted here, right?

[00:04:01] Speaker 04:
And that test was correctly stated by the CABC.

[00:04:05] Speaker 04:
They said, this is the test we're going to apply.

[00:04:08] Speaker 04:
And so they were looking to see, what is there that your client told the agency that there was this magnet that would attract the adjudicator to this evidence?

[00:04:24] Speaker 04:
And they basically said, all you had done was to say, we didn't get a letter from the RO on the claim being denied.

[00:04:34] Speaker 04:
Right?

[00:04:36] Speaker 04:
That's the evidence in the record that supposedly is going to attract the attention of the adjudicator to these letters and to the GAO report.

[00:04:47] Speaker 05:
That's what the Veterans Court said.

[00:04:49] Speaker 04:
And the Veterans Court said it's here that's too tenuous, as we've said in other cases.

[00:04:54] Speaker 04:
The connection to the veteran's claim, the veteran's claim is that there is a rebuttal of the presumption of irregularity.

[00:05:03] Speaker 04:
The veteran's claim is that the usual rule that you're stuck with the mailing doesn't apply here because we have all this evidence of irregular mailings.

[00:05:13] Speaker 04:
Right?

[00:05:15] Speaker 04:
finding was that it was that your connection, i.e.

[00:05:19] Speaker 04:
I just didn't get the letter, doesn't connect up to the rebuttal argument.

[00:05:24] Speaker 04:
And why isn't that a question of fact?

[00:05:26] Speaker 04:
Why isn't that something that the law left to the CAVC to decide in close or difficult cases sort of where the margin falls?

[00:05:35] Speaker 05:
The reason, Your Honor, is because, at least, again, with these two pieces of evidence, the GAO report and the letter that Mr. Davis's counsel sent with respect to the counsel's irregular mailing was presented to the board before its decision, and the Veterans Court ignored that and said, you didn't... Your Honor, the GAO report also said with regard to the GAO report that it basically is irrelevant because it doesn't really deal with the question of irregular mailing.

[00:06:04] Speaker 04:
And so you've got that hill to climb with regard to the jail report.

[00:06:09] Speaker 04:
I would agree your argument is a little more pointed with regard to counsel's letters addressed to the director of the BVA and some financial administrator, correct?

[00:06:20] Speaker 05:
Correct, Your Honor.

[00:06:21] Speaker 05:
But I would dispute whether the court called the jail report not relevant.

[00:06:26] Speaker 05:
I don't think that it was clear in their decision.

[00:06:30] Speaker 04:
Even if relevant.

[00:06:32] Speaker 04:
I'm sorry, Your Honor.

[00:06:34] Speaker 04:
You can disagree with that.

[00:06:35] Speaker 04:
The government obviously disagrees with you on that point.

[00:06:38] Speaker 04:
Right.

[00:06:38] Speaker 04:
They feel that the JBC made pretty clear that the J are appropriate.

[00:06:42] Speaker 04:
Right.

[00:06:42] Speaker 05:
But nonetheless, the Veterans Court did assume that it was relevant and then said, this is not constructively before the record in large degree because Mr. Davis didn't tell the VA about

[00:06:54] Speaker 04:
the jail report or about mailing in irregularities after his NOD was filed.

[00:07:05] Speaker 05:
But he did before the board's decision and that's

[00:07:09] Speaker 05:
That's where the Veterans Court decision is contrary to the law.

[00:07:13] Speaker 05:
In Lane and Eusebio, the evidence was not mentioned until at the Veterans Court.

[00:07:17] Speaker 05:
And this court had no problem, particularly in Lane, finding that the evidence was constructively before the board when it made its decision.

[00:07:25] Speaker 05:
And Lane is even more further afield because the issue in Lane was whether there was a CUE in a 1996 decision.

[00:07:33] Speaker 05:
The board found there was not.

[00:07:35] Speaker 05:
At the Veterans Court, Mr. Lang's attorney discovered this evidence and said, hey, this might affect the finality such that Q wouldn't apply.

[00:07:44] Speaker 05:
This court overturned

[00:07:47] Speaker 05:
the Veterans Court and said, yes, 20-plus-year-old evidence that was made by a VHA examiner was constructively before the board at that time, even though it had nothing to do necessarily with CUE, but because it was reasonably connected to the Veterans claim at that time.

[00:08:07] Speaker 05:
And so the idea that we have to tell the VA about the existence of an argument or evidence is not grounded in law as we see in both Eusebio and Lane.

[00:08:21] Speaker 01:
Well, in Eusebio, it was clearly connected to what was the matter that was being adjudicated, right?

[00:08:26] Speaker 05:
I agree, Your Honor.

[00:08:26] Speaker 05:
Yes, that evidence certainly was.

[00:08:29] Speaker 05:
And here again, the argument is that there was an irregularity in the mailing.

[00:08:35] Speaker 05:
And this evidence, at least the letters that Mr. Davis's attorney sent in, we, of course, think this GAO report is also relevant.

[00:08:45] Speaker 05:
But even the other evidence, the Chisholm and Raver affidavits, which were, again, we see in Romero that it was received before the main 2019 board decision that was appealed in that case.

[00:08:58] Speaker 05:
That predates the June 2019 decision in our case.

[00:09:02] Speaker 05:
So the board had that evidence.

[00:09:04] Speaker 05:
And even if the Chisholm affidavit doesn't, the Labor affidavit identified well over 1,000 – and I had it here, but I apologize, it's not right here – but well over 1,000, I think maybe even 2,000 cases of veteran attorneys throughout the country, not just Chisholm, Chisholm, and Kirkpatrick, but other attorneys throughout – here it is – 2,072 examples of mailing failures from multiple representatives

[00:09:34] Speaker 05:
accredited to represent

[00:09:50] Speaker 05:
the exact same contentions were made.

[00:09:54] Speaker 05:
And it was a prevalent problem during that time period.

[00:09:56] Speaker 05:
And the VA has conceded that.

[00:09:58] Speaker 05:
And I think in Eusebio, there was a mention of that during oral argument.

[00:10:03] Speaker 05:
But regardless, this is how the evidence is reasonably connected to Mr. Davis's claim.

[00:10:08] Speaker 05:
And going back to Eusebio, the NAS report was not given to VA for any particular veteran's claim.

[00:10:18] Speaker 05:
The Veterans Court in our case here

[00:10:21] Speaker 05:
leaned on that in particular for the Raber and the Chisholm affidavits to say that it was not of some ilk like the NAS, and that it was not given to the VA for any particular claim or this veteran's claim.

[00:10:42] Speaker 05:
That inquiry, again, is irrelevant to whether it's reasonably connected

[00:10:45] Speaker 05:
to Mr. Davis's claim.

[00:10:48] Speaker 01:
You seem to place a lot of emphasis on the fact that this evidence, that the board had it.

[00:10:55] Speaker 01:
Did you submit it as evidence before the board?

[00:10:58] Speaker 05:
Two of them we did, Your Honor.

[00:11:00] Speaker 05:
The J.O.

[00:11:01] Speaker 05:
report was produced well before the decision.

[00:11:04] Speaker 05:
We just provided them with a copy of it and said, hey, we want you to consider this when you're looking at our appeal.

[00:11:09] Speaker 00:
But you provided it, they got it after your window was closed for submitting additional evidence, did they not?

[00:11:16] Speaker 05:
Well, we- So that's why we're here.

[00:11:17] Speaker 05:
Yes, sir.

[00:11:19] Speaker 05:
We alerted them to it after the window had closed.

[00:11:22] Speaker 05:
But the evidence was given to the VA before the decision, the AOJ's decision, which was the statement of the case.

[00:11:31] Speaker 05:
And I noted in my brief that there is a question about whether the letters that we sent.

[00:11:35] Speaker 04:
How was the GAO letter given, the GAO report?

[00:11:40] Speaker 04:
I know the letters were actually mailed to the

[00:11:43] Speaker 04:
headed the BVA into some administrative financial officer.

[00:11:47] Speaker 04:
But how did the GAO report get more hands to the agency?

[00:11:52] Speaker 05:
Two ways, Your Honor.

[00:11:53] Speaker 05:
In Romero, that same exact GAO report was given to the VA.

[00:11:59] Speaker 04:
But the GAO itself.

[00:12:00] Speaker 04:
No, no.

[00:12:01] Speaker 04:
I'm trying to find out the point in time you

[00:12:05] Speaker 04:
Is it in your December 19 submission?

[00:12:07] Speaker 05:
That's when we alerted the board to its existence and relevance.

[00:12:12] Speaker 05:
The GAO gave it to the VA years before when they were reviewing the VA's mailing.

[00:12:18] Speaker 04:
So the secretary had to... I think the presiding judge was asking when you had given the information.

[00:12:22] Speaker 04:
Right.

[00:12:23] Speaker 05:
We submitted a copy of it in December of 2019, which was after the date that the record closed.

[00:12:31] Speaker 05:
But again, the VA had that.

[00:12:34] Speaker 05:
The GEO gave a copy of that.

[00:12:36] Speaker 04:
Didn't you argue that the fact that the record closes is basically irrelevant to the question of constructive possession?

[00:12:41] Speaker 04:
It is, Your Honor, because, again, so long as it... If the record hadn't closed, then thank you, the evidence is in, and you're home free.

[00:12:47] Speaker 04:
Correct, Your Honor.

[00:12:48] Speaker 04:
You're relying on constructive possession because the record closed.

[00:12:52] Speaker 04:
Correct, Your Honor.

[00:12:52] Speaker 04:
And you had an argument about why the record wasn't closed, but you're not pursuing that here.

[00:12:57] Speaker 05:
Correct, Your Honor.

[00:12:58] Speaker 05:
The standard in both Lange and Eusebio is that it predates the decision, which all of these do.

[00:13:04] Speaker 05:
Again, we have to get around 3.156B with respect to the letters.

[00:13:09] Speaker 05:
The court didn't address that.

[00:13:11] Speaker 05:
So that's not something that they seem to have assumed in their decision that it was.

[00:13:16] Speaker 04:
Well, the board decision, the CADC decision was based on the reasonably connected issue, that element of the test.

[00:13:23] Speaker 05:
English with regard to the letter more or less your honor and and I see that I'm into my rebuttal time I would like to just save some of that for for rebuttal.

[00:13:33] Speaker 05:
Thank you

[00:13:48] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:13:50] Speaker 03:
Having missed the deadline to submit additional evidence to the board, Mr. Davis now seeks to shift the burden to the board and contends that the board was obligated to have discovered and included these three pieces of evidence at issue in its consideration of Mr. Davis's claims.

[00:14:09] Speaker 04:
But as an initial- So why wasn't December 2019, before the board issued its decision in this case,

[00:14:16] Speaker 04:
saying that he had failed to rebut the presumption of regularity.

[00:14:20] Speaker 04:
He had submitted to the board by then both his correspondence and the jail report, correct?

[00:14:28] Speaker 03:
He submitted them to the board outside of the 90-day.

[00:14:32] Speaker 03:
Well, forget about that.

[00:14:33] Speaker 03:
Well, I'm sorry?

[00:14:34] Speaker 04:
Forget about that.

[00:14:36] Speaker 04:
If he submitted within the 90 days, he would be home free, correct?

[00:14:39] Speaker 03:
Correct, Your Honor.

[00:14:42] Speaker 04:
So presumably,

[00:14:44] Speaker 04:
In a constructive possession case, as in all the other cases, for example, in Asfubio, in the cases where the evidence is being presented to the CAVC,

[00:14:54] Speaker 04:
was obviously after the record had closed.

[00:14:56] Speaker 04:
That was the problem.

[00:14:57] Speaker 04:
Your Honor, I think that there's a little bit of... I want to just answer my question.

[00:15:02] Speaker 04:
Why isn't the December 19th submission sufficient to have put the evidence in front of the board?

[00:15:07] Speaker 03:
Because, Your Honor, the doctrine of constructive possession is a legacy application that would apply before the AMA was in place.

[00:15:18] Speaker 03:
So once Mr. Davis here opted into the AMA in August of 2019, the constructive possession doctrine would no longer apply to the evidence at issue.

[00:15:28] Speaker 03:
At all?

[00:15:29] Speaker 03:
Correct.

[00:15:30] Speaker 04:
Why are we here talking about it?

[00:15:32] Speaker 03:
Well, because, Your Honor, Mr. Davis has argued that even prior to his opt-in, the board was obligated to have constructively possessed the documents at issue.

[00:15:42] Speaker 04:
When did he opt in?

[00:15:44] Speaker 03:
In August of 2019, Your Honor.

[00:15:47] Speaker 04:
So when was the board decision?

[00:15:51] Speaker 03:
The board decision was in July of 2020.

[00:15:57] Speaker 03:
So the submission that Mr. Davis provided in December.

[00:16:01] Speaker 04:
Wasn't his case pending before the board in August of 2019?

[00:16:05] Speaker 03:
It was, Your Honor.

[00:16:07] Speaker 03:
He submitted his notice of disagreement in December of 2019.

[00:16:10] Speaker 04:
If his case was pending in 2019, then why isn't the Constructive Physician, Doctor, and Applicant here, right?

[00:16:17] Speaker 03:
The constructive possession doctrine, again, is a legacy doctrine which applies before the AMA opt-in.

[00:16:22] Speaker 03:
So we're here to discuss whether these documents should have been constructively possessed by the board prior to August of 2019.

[00:16:31] Speaker 03:
But in his submission in December of 2019, the AMA rules would apply.

[00:16:38] Speaker 03:
And that's why, having missed the window of

[00:16:41] Speaker 03:
submitting evidence to the board of the AMA regulations, Mr. Davis is now trying to argue that the board should have constructively possessed the documents prior to August.

[00:16:54] Speaker 03:
But if Mr. Davis could submit evidence at any time, regardless of the 90-day window, and have that be an argument in favor of constructive possession, then the AMA 90-day window would essentially have no meaning at that point.

[00:17:09] Speaker 04:
And that's what the CABC said at the end of its opinion?

[00:17:14] Speaker 01:
Correct, yes.

[00:17:16] Speaker 01:
Can I ask, you also offer up kind of a harmless error argument at the end.

[00:17:21] Speaker 01:
And I think in gray, your friend kind of points out that if he files a supplemental claim, he could only include new and relevant evidence.

[00:17:32] Speaker 01:
And so presumably,

[00:17:34] Speaker 01:
I assumed, I understood it to be your position, that you would not concede that this was new and relevant evidence.

[00:17:42] Speaker 03:
Your Honor, we would not concede that the evidence is new or relevant.

[00:17:45] Speaker 03:
But an adjudicator, another adjudicator before the board might have a different take on whether the evidence is new or material.

[00:17:53] Speaker 03:
But to the extent Mr. Davis has new and relevant evidence, he can.

[00:17:58] Speaker 04:
Why is it not new and material?

[00:18:00] Speaker 03:
Well, again, the Veterans Court in this case and the board found that these documents were simply not relevant to Mr. Davis's claim.

[00:18:08] Speaker 04:
That doesn't have anything to do with whether it's new or material.

[00:18:13] Speaker 04:
Right, which is why we... Let's just talk about the letters.

[00:18:16] Speaker 03:
Yeah.

[00:18:17] Speaker 04:
Why aren't the two letters new and material?

[00:18:21] Speaker 03:
Well, in this case, there was no consideration as to whether the documents were new and material because, again, we were considering them under construction possession.

[00:18:30] Speaker 04:
But here, Mr. Wilkes has said he's willing to accept your invitation to file a new claim if you'll make a concession.

[00:18:42] Speaker 03:
Well, I mean, I can't speculate, Your Honor, at this time, whether an adjudicator in the VA would consider those documents to be a new material for purposes of a supplemental claim, because that isn't what the board or the Veterans Court is.

[00:18:56] Speaker 04:
Well, you're capable.

[00:18:57] Speaker 04:
agent of the government to make that decision if you wish.

[00:19:01] Speaker 04:
Well, you and I... Why are they not new in material?

[00:19:08] Speaker 03:
I can't stand here and say that they are not new and material, because it isn't something that the Veterans Court or the board considered.

[00:19:16] Speaker 03:
Because again, that isn't what was presented to them.

[00:19:19] Speaker 03:
But in this case, the Veterans Court did apply the U.S.

[00:19:23] Speaker 04:
order.

[00:19:24] Speaker 04:
Your offer in your brief that there was a way out of this was illusory.

[00:19:30] Speaker 04:
Well.

[00:19:31] Speaker 04:
Well, you knew what he was going to say.

[00:19:33] Speaker 03:
No, Your Honor, I don't believe it was illusory, because Mr. Davis is free to, after this case is over, to submit a supplemental claim and raise the argument that the evidence is new material.

[00:19:46] Speaker 03:
I, standing here today, though, wouldn't want to speculate as to whether an adjudicator would agree that the evidence is actually new material.

[00:19:55] Speaker 01:
So in other words, you can't say that it's harmless?

[00:20:02] Speaker 01:
That's the point of what you said.

[00:20:05] Speaker 01:
It matters in this case, is another question.

[00:20:08] Speaker 03:
But in this case, this court, as an initial matter, lacks jurisdiction, because the Veterans Court simply applied the UCPS standard to the facts in Mr. Davis's case.

[00:20:18] Speaker 03:
And he simply disagrees with the results here.

[00:20:21] Speaker 01:
What's your response to the claim he made 10 minutes ago, which is that it or the board misconstrued the standard under the case law?

[00:20:29] Speaker 03:
We would disagree that the Veterans Court misapplied the standard or misconstrued the standard.

[00:20:35] Speaker 03:
The Eusebio standard reaffirms that the constructive possession standard, as discussed in Lang and in Bell and in Bally, that standard is the correct standard.

[00:20:49] Speaker 03:
It is whether the evidence was within the secretary's control and whether it is reasonably expected to be part of the record.

[00:20:57] Speaker 04:
Well, that's how you decide whether it's reasonably connected.

[00:21:02] Speaker 03:
Correct.

[00:21:02] Speaker 04:
Two things.

[00:21:02] Speaker 04:
It's reasonably connected, and you prove it's reasonably connected, yes or no, by whether you would have expected it to be in the record.

[00:21:09] Speaker 04:
And that's, again, the question.

[00:21:10] Speaker 04:
How do you draw out of the millions and millions of pieces of information something?

[00:21:16] Speaker 03:
That is correct, Your Honor.

[00:21:17] Speaker 03:
And Mr. Davis here has read that reasonably.

[00:21:20] Speaker 04:
Well, Mr. Davis argued that that's a trigger.

[00:21:22] Speaker 04:
by putting some burden on the veteran to do something, hand-driver something, to attract the attention of an adjudicator to this piece of information, this needle in the haystack.

[00:21:35] Speaker 04:
He's arguing that that burden being put on the veteran to send some signal somehow, something more than just saying, I didn't get the message, I didn't get the thing.

[00:21:46] Speaker 04:
Why isn't that a trigger?

[00:21:47] Speaker 03:
The, Your Honor, the triggering

[00:21:50] Speaker 03:
that it would have to be relevant to a specific veteran's claim isn't what the Veterans Court did here.

[00:21:56] Speaker 03:
But there does have to be something more than relevance.

[00:22:00] Speaker 04:
The decision here essentially was that the two letters are not reasonably connected to his claim.

[00:22:07] Speaker 04:
That's correct, Your Honor.

[00:22:09] Speaker 04:
We have to decide, what is his claim?

[00:22:11] Speaker 04:
His claim is that the presumption of regularity was rebutted in this case.

[00:22:15] Speaker 03:
Well, Your Honor, the claim that he raised before the board was that he did not receive the notice of disagreement.

[00:22:20] Speaker 04:
That's what I'm trying to get to you.

[00:22:22] Speaker 04:
So if that's his claim, that he didn't get it, the question is, does that put the agency on notice

[00:22:30] Speaker 04:
that he was talking about a larger issue than not just getting it.

[00:22:34] Speaker 04:
He could have not gotten it for a whole lot of reasons.

[00:22:37] Speaker 03:
Your Honor, and applying the Eusebius standard, I don't suppose concluded that.

[00:22:42] Speaker 04:
And Mr. Goldberg is saying that constitutes a trigger.

[00:22:46] Speaker 04:
No, Your Honor, I disagree with that.

[00:22:48] Speaker 04:
I think the argument would be, if so, that undermines the reason.

[00:22:51] Speaker 04:
You have to find, there's something that has to trigger a reason why there's a reasonable connection between the evidence that's in the morass

[00:23:00] Speaker 03:
Yes, Your Honor, there has to be something more than just relevance.

[00:23:03] Speaker 03:
It has to be relevant and reasonably expected to be part of the record.

[00:23:08] Speaker 03:
And Mr. Davis, in page 17 of his brief, argues for simply a relevant standard that's disconnected from whether it's reasonably expected to be part of the record.

[00:23:19] Speaker 03:
And here, the Veterans Court and the board found that it was not reasonable for these pieces of evidence to be part of the record in this case.

[00:23:29] Speaker 03:
There is no reasonable connection to the veteran's claims here, and that's why the board ultimately... And what is the veteran's claim?

[00:23:39] Speaker 03:
That he did not receive the 2016 AOJ decision and that his

[00:23:46] Speaker 03:
his notice of disagreement should be considered timely despite having failed to file the notice of disagreement.

[00:23:52] Speaker 04:
But under the law, his claim that he didn't get it on time has no meaning unless he's trying to argue that the perception of regularity on government mailing doesn't apply.

[00:24:07] Speaker 03:
Well, Your Honor, again, this goes ultimately to the conclusions of the Veterans Court drew, but that would be the application of law to facts, which again is something that this Court would not have jurisdiction to review.

[00:24:19] Speaker 03:
So the Veterans Court appropriately applying these UBS standards worked for there to be

[00:24:24] Speaker 03:
a connection more than just relevance, and didn't find it.

[00:24:28] Speaker 03:
And any argument that the Veterans Court was wrong in that decision would be an application of loss of fact.

[00:24:35] Speaker 03:
But the Veterans Court here correctly applied the standard of Eusebio, which is not simply a relevant standard.

[00:24:44] Speaker 03:
It is relevant and reasonably connected to the subject.

[00:24:48] Speaker 04:
My understanding of the question in this case is, how do you decide if something, as I say, I like to think of

[00:24:53] Speaker 04:
this room connecting all this information.

[00:24:55] Speaker 04:
There are close to a billion bits of information.

[00:24:59] Speaker 04:
And we're trying to pick this one of these two letters out of that.

[00:25:02] Speaker 04:
There has to be something that forces you to say it's connected.

[00:25:07] Speaker 03:
Yes, Your Honor.

[00:25:08] Speaker 03:
And the conclusions of the Veterans Court about whether it was and wasn't reasonably connected is an application of the law to the fact.

[00:25:15] Speaker 03:
But that's not a question for this court.

[00:25:19] Speaker 03:
So really, as long as the Veterans Court correctly applied both parts of the standard, that there has to be both relevance and that the evidence has to be reasonably expected to be part of the record.

[00:25:32] Speaker 04:
Let me ask you this question.

[00:25:33] Speaker 04:
Assume that we had a case like this one in which

[00:25:39] Speaker 04:
The question was whether or not it was reasonably connected.

[00:25:41] Speaker 04:
And the record actually showed that the document was the two letters were in the possession of the BVA deciding this case.

[00:25:49] Speaker 04:
Just assume that for a moment.

[00:25:52] Speaker 04:
And yet the BVA gave the same decision saying no, no, didn't look at the evidence.

[00:25:59] Speaker 04:
It goes up to the CAVC and the CAVC affirms.

[00:26:02] Speaker 04:
So the CBC writes a clearly wrong opinion, in which they say, oh, no, no, there is no reasonable connection, even though there clearly was.

[00:26:10] Speaker 04:
And it comes up to us, and it's patently clear we still cannot reach that case.

[00:26:15] Speaker 03:
Well, Your Honor, I think that would be more similar to the Lang case that this court decided in 2020, where there was clear evidence in the record, and the court ultimately concluded that it

[00:26:30] Speaker 04:
But you said that wasn't a question about evidence being in front of the board.

[00:26:35] Speaker 04:
What I'm talking about is, I mean, whenever you say it's an application of a lot of fact, the thing that troubles me is, what happens if we all know that the CAVC blew it and made a 100% wrong decision on the facts?

[00:26:48] Speaker 04:
Are we still hamstring?

[00:26:50] Speaker 04:
I'm terribly sorry.

[00:26:51] Speaker 04:
I know that there was constructivization, but there's nothing we can do because

[00:26:57] Speaker 04:
Under your view, we can't look at the facts under the reasonable connection?

[00:27:01] Speaker 03:
Well, Your Honor, under 7292, this court doesn't have jurisdiction to review the application of law to facts.

[00:27:09] Speaker 03:
So to the extent that a case besides now.

[00:27:12] Speaker 04:
In a case in which the agency would even admit that there was a factual error committed by the CAVC.

[00:27:18] Speaker 03:
I believe even under that hypothetical, Your Honor, that this court would be bound by its own jurisdictional mandate.

[00:27:25] Speaker 03:
That isn't the situation.

[00:27:26] Speaker 02:
So what would be the best vehicle to correct the situation?

[00:27:31] Speaker 02:
Recognizing potentially that our court might not have jurisdiction, what would you say would be the best vehicle to correct it?

[00:27:37] Speaker 03:
Your Honor, to the extent that Mr. Davis believes he has new material evidence, I believe that the remedy for him under the AMA that he opted into would be to file a supplemental claim.

[00:27:49] Speaker 03:
or to pursue a Q claim, if that would be appropriate.

[00:27:52] Speaker 03:
Again.

[00:27:53] Speaker 02:
And if he had chosen not to opt into the AMA, would you believe that he would be differently positioned in front of our court right now?

[00:28:01] Speaker 03:
Arguably, Your Honor, because the constructive possession doctrine, again, is a legacy doctrine.

[00:28:09] Speaker 03:
So if he had not opted into the AMA, it may very well apply further on down the road.

[00:28:13] Speaker 03:
But once he opted into the AMA, the AMA regulations and statutes apply and govern explicitly when evidence can be submitted and how.

[00:28:23] Speaker 03:
Mr. Davis admittedly conceivably missed that that 90-day window for submitting evidence that the AMA provided him.

[00:28:31] Speaker 02:
The last question I have for you is, counsel was talking a lot about Eusebio and also Lang.

[00:28:36] Speaker 02:
I think you were starting to distinguish Lang.

[00:28:38] Speaker 02:
Is there further distinctions you want to draw with respect to that case before you sit down?

[00:28:42] Speaker 03:
Well, Your Honor, they had to do with the veterans' own medical records.

[00:28:46] Speaker 03:
And this court drew a very different line there.

[00:28:48] Speaker 03:
And I think Eusebio is also distinguishable because the court explained that they were well-known NAS reports that were specifically commissioned by Congress to look into these types of the connection between the diseases

[00:29:07] Speaker 03:
and the Agent Orange.

[00:29:09] Speaker 03:
And so these are just very different types of documents that the court has found constructively possessed than the GA report and the letters that we have in this case.

[00:29:20] Speaker 03:
If Your Honors have any further questions, otherwise we request that the Veterans Court be affirmed, Jerry.

[00:29:28] Speaker 03:
Thank you.

[00:29:28] Speaker 03:
Thank you, Robin.

[00:29:32] Speaker 01:
You don't really use it.

[00:29:33] Speaker 01:
Or we find we don't have jurisdiction.

[00:29:36] Speaker 03:
Well, yeah.

[00:29:39] Speaker 05:
Okay, I hope that's enough time.

[00:29:44] Speaker 05:
There's a lot here.

[00:29:45] Speaker 05:
I'll just start by saying that the Secretary's assertion that a constructive possession doesn't exist in AMA is not anywhere in their brief, and we would ask this Court to either order additional briefing on that point, because this is the first court hearing of this.

[00:29:59] Speaker 05:
The Veterans Court and the Secretary in their briefing

[00:30:02] Speaker 05:
said that they correctly applied constructive possession.

[00:30:05] Speaker 05:
So I don't think that that's an issue.

[00:30:08] Speaker 05:
Two, the board didn't say, the secretary argued that the board said the evidence was not relevant and then later said it was not.

[00:30:14] Speaker 05:
They never did.

[00:30:15] Speaker 05:
The board never addressed this evidence, so there are no findings by the board on the relevance.

[00:30:20] Speaker 05:
Which evidence are you talking about?

[00:30:22] Speaker 05:
Any of it you're on.

[00:30:23] Speaker 04:
And so, and Judge Clevinger, to your question, you started getting presumably they think that the letters are relevant because they only discuss the other tests.

[00:30:33] Speaker 05:
I think that's – yeah.

[00:30:35] Speaker 05:
Sure.

[00:30:35] Speaker 05:
Yes, Your Honor.

[00:30:35] Speaker 05:
I think that, at least from the Veterans Court perspective, they seem to be relevant.

[00:30:39] Speaker 05:
But how do we – how do we determine which relevant evidence is reasonably connected?

[00:30:44] Speaker 05:
And you asked this question, we didn't get to completely answer it, but I think that there's at least two situations where we can point to that say, yes, this is – in all the world of relevant evidence, these are at least reasonably connected.

[00:30:56] Speaker 05:
One is here, where we tell the board, hey, this evidence is out there.

[00:31:00] Speaker 05:
It's not like it's a mystery.

[00:31:02] Speaker 05:
We actually provided them copies of it.

[00:31:05] Speaker 05:
And so at least where the veteran tells the VA, not with the NOD, but any time prior to the board's decision, it's reasonably connected.

[00:31:14] Speaker 05:
And then, of course, if it's relevant, then it's constructively before the board.

[00:31:18] Speaker 04:
But then the question here is whether or not when you say, oh, I didn't get a mailing from the RO, whether that is basically an argument that you're trying to rebut the presumption.

[00:31:31] Speaker 04:
Right, Your Honor.

[00:31:32] Speaker 04:
Yes.

[00:31:33] Speaker 04:
And that's the cusp right here, isn't it?

[00:31:36] Speaker 05:
Well, it is, but it's not, Your Honor.

[00:31:38] Speaker 05:
The Veterans Court, again, I want to go back to what they said.

[00:31:40] Speaker 05:
And this is, I think, the clearest mark of whether a decision is wrong.

[00:31:47] Speaker 05:
Instead, in his 2008 purported NOD, January 2009 OD, only asserted.

[00:31:53] Speaker 02:
You're reading from a page.

[00:31:53] Speaker 02:
What page are you on?

[00:31:54] Speaker 05:
Oh, I'm sorry.

[00:31:54] Speaker 05:
Appendix 12, Your Honor.

[00:31:57] Speaker 04:
They only said they didn't get it, right?

[00:32:02] Speaker 04:
He did not receive.

[00:32:03] Speaker 05:
Did not receive the decision.

[00:32:06] Speaker 05:
And then he says, with no suggestion of a pattern of VA mailing irregularity with regard to his counsel, and no suggestion of a more general problem with VA mailings, it would not be reasonable for the board, et cetera.

[00:32:16] Speaker 04:
But he did tell him that.

[00:32:17] Speaker 04:
There was no suggestion that what he's really talking about is a breakdown in the mailing.

[00:32:21] Speaker 04:
And because of the breakdown in the mailing, the presumption of regularity doesn't apply.

[00:32:25] Speaker 05:
Right.

[00:32:25] Speaker 05:
But Mr. Davis did tell the board that.

[00:32:28] Speaker 05:
He told the board that in December 2019.

[00:32:30] Speaker 05:
Yes, it was after the NOD.

[00:32:33] Speaker 05:
But again, the statute, 7104A, requires the board.

[00:32:37] Speaker 05:
Secretary's own regulations, when they implemented the AMA, said there's nothing about it.

[00:32:41] Speaker 04:
And that gets into this legacy issue and whether it was too late.

[00:32:44] Speaker 04:
And the explanation at the very end of the CBC's opinion is that we allow the December 2019 ruling

[00:32:52] Speaker 04:
to come into play at a viscerate, yada, yada, yada.

[00:32:56] Speaker 05:
Well, but Your Honor, the argument was that he didn't get it.

[00:33:00] Speaker 05:
He's allowed, and I don't have the court on hand, but there is a case from this court that talks about refining the argument before the board after the filing of the appeal.

[00:33:10] Speaker 05:
Mr. Davis is authorized by statute, by the VA's regulation, as noted in their federal register, final rule, that he can present argument.

[00:33:19] Speaker 05:
His argument was that it was

[00:33:21] Speaker 05:
He was rebutting the presumption.

[00:33:23] Speaker 05:
The Veterans Court disregarded the evidence because he didn't put it in his NOD.

[00:33:29] Speaker 05:
But that's not the law.

[00:33:30] Speaker 05:
He's allowed to refine the argument.

[00:33:32] Speaker 05:
He did so in December 2019.

[00:33:34] Speaker 04:
The evidence is otherwise... This case shows, as I'm certain you know from your wide experience, that whether or not a particular piece of evidence is going to be reasonably connected to this whole test is reasonable minds could differ on that.

[00:33:52] Speaker 04:
And in the order of things, the way Congress set up the review structure here, we're not allowed, we're not supposed to overcall factual determinations that are made by the CBC.

[00:34:03] Speaker 04:
Those judges do this all the time.

[00:34:05] Speaker 04:
That's all they do, right?

[00:34:07] Speaker 04:
And so why isn't it correct that on an issue like this where the facts can vary from case to case, the Congress didn't properly put that discretion in the hands of the CBC and not in ours?

[00:34:21] Speaker 04:
Because you're basically asking us to disagree with the decision by the distinguished CAVC judges that they made a mistake here on the reasonably connected.

[00:34:33] Speaker 05:
I am not, Your Honor.

[00:34:34] Speaker 05:
I'm saying that they looked at it through the wrong lens.

[00:34:36] Speaker 05:
They applied the incorrect law.

[00:34:39] Speaker 05:
And my argument is that if they do it under the correct law, there's a good chance that they will come out in favor.

[00:34:46] Speaker 04:
But you haven't told me how you state the reasonably connected test so as to come out your way instead of the way they came out.

[00:34:53] Speaker 05:
Well, I would urge this Court to find that if the veteran tells the VA that something exists and provides them a copy of it that predated the decision, it's reasonably connected as a matter of law.

[00:35:06] Speaker 05:
There's just no reasonable argument that the VA shouldn't have to address evidence that the veteran tells them exists.

[00:35:15] Speaker 05:
And similar to Lane, this court held that VA's own medical records for that veteran are always relevant and always reasonably connected.

[00:35:25] Speaker 04:
Is this really, in the whole destructive possession doctrine comes out of it, it grows out of the duty to assist, right?

[00:35:35] Speaker 05:
Well, Eusebio certainly referred to that, Your Honor.

[00:35:38] Speaker 04:
That's where it comes from.

[00:35:39] Speaker 04:
It does.

[00:35:39] Speaker 04:
Helping the veteran.

[00:35:42] Speaker 05:
My response to that is that the statute, Your Honor, says any relevant records held by a federal department or agency that the claimant adequately identifies, the VA has a duty to assist in obtaining that.

[00:35:57] Speaker 05:
It's 5103A.

[00:35:58] Speaker 05:
I believe it's C1C.

[00:36:07] Speaker 05:
But in these are in the possession again.

[00:36:10] Speaker 05:
I don't there's no the secretary seems to concede that the VA had control of these Yes