[00:00:00] Speaker 01:
Our next case for argument is 24-1543, Hamill versus Collins.

[00:00:05] Speaker 01:
Ms.

[00:00:06] Speaker 01:
Burbank, please proceed.

[00:00:08] Speaker 02:
Good morning, and may it please the court.

[00:00:10] Speaker 02:
The Appeals Modernization Act fundamentally altered the procedure for veterans' benefits appeals.

[00:00:16] Speaker 02:
In its changes, the statute abrogates the existing common law doctrine of implicit denials.

[00:00:22] Speaker 02:
Because veterans must make more choices, more specific choices at the point of the initial decision,

[00:00:29] Speaker 02:
about whether and how to appeal a decision, they need more information to have sufficient notice and a fair opportunity to be heard.

[00:00:36] Speaker 01:
So let me ask a question.

[00:00:37] Speaker 01:
The new statute, 5104B, which articulates, I think it's seven, is it seven different, yeah, seven different things about which the veteran has to get notice, right?

[00:00:52] Speaker 01:
One of the problems I have with your argument

[00:00:55] Speaker 01:
is that you think this veteran doesn't have an appealable decision to the board until it's gotten all seven.

[00:01:03] Speaker 01:
Is that fair?

[00:01:04] Speaker 02:
I think, Your Honor, it has to have enough notice that the veteran, the claimant, can understand all seven.

[00:01:15] Speaker 02:
It doesn't have to be seven different.

[00:01:17] Speaker 01:
Well, but I don't understand.

[00:01:18] Speaker 01:
This is what I'm confused about.

[00:01:20] Speaker 01:
OK, suppose that one

[00:01:23] Speaker 01:
Suppose that only one of them was missing of the seven.

[00:01:26] Speaker 01:
You can even pick which one, right?

[00:01:28] Speaker 01:
An explanation of how to obtain access to evidence used in making the decision.

[00:01:32] Speaker 01:
Suppose that's the only thing missing from a decision.

[00:01:34] Speaker 01:
Are you saying that the veteran does not at that point have a decision which it can appeal to the board and say to the board, I have a decision.

[00:01:43] Speaker 01:
They told me the claim they're adjudicating.

[00:01:45] Speaker 01:
They told me how they're adjudicating.

[00:01:47] Speaker 01:
They told me what evidence they used.

[00:01:50] Speaker 01:
But they didn't tell me this, so send it back for a fuller analysis that complies with all seven requirements.

[00:01:59] Speaker 01:
Are you saying that the veteran does not have that option of going to the board under those circumstances?

[00:02:04] Speaker 01:
I think I understand, Your Honor.

[00:02:05] Speaker 01:
No, that is not Mr. Hamill's position.

[00:02:07] Speaker 01:
But Mr. Cooley, it does seem to be, because Mr. Hamill's position seems to be

[00:02:11] Speaker 01:
that there isn't an appealable board decision unless all seven of these are satisfied.

[00:02:17] Speaker 01:
And I am sort of surprised if that's what you're asking for, because that doesn't seem to make sense.

[00:02:22] Speaker 02:
That surprise makes sense and Mr. Hemel is not asking for that.

[00:02:25] Speaker 02:
When there's an explicit decision and there's something wrong with the notice, this is very common.

[00:02:31] Speaker 02:
You appeal to the board, the board says,

[00:02:33] Speaker 02:
there's 5104 deficiencies, remands it back.

[00:02:36] Speaker 02:
That's totally fine.

[00:02:38] Speaker 03:
So not as if all seven factors in AMA 5104B are equal.

[00:02:43] Speaker 02:
That's right.

[00:02:44] Speaker 03:
Your arm could be implicitly addressed.

[00:02:47] Speaker 03:
It sounds like you're conceding.

[00:02:48] Speaker 02:
I think that's right.

[00:02:50] Speaker 02:
That when there's an explicit decision and you can extrapolate, for example.

[00:02:54] Speaker 02:
Yeah.

[00:02:54] Speaker 03:
Which factors need to be explicit in Mr. Handel's view?

[00:02:58] Speaker 02:
So particularly there has to be enough so that

[00:03:03] Speaker 02:
a veteran can understand what evidence and legal structure the secretary used.

[00:03:10] Speaker 02:
And again, in the case of a denial, what elements were not satisfied leading to the denial.

[00:03:17] Speaker 02:
So here, Mr. Hamill has a request to reopen.

[00:03:23] Speaker 02:
There is, as Judge Jacobs said in his dissent, there's no hint of any explanation of whether the VA actually

[00:03:33] Speaker 02:
recognize that as a request to reopen, whether there was a, yeah.

[00:03:38] Speaker 03:
So I should stay away from saying what you're implying.

[00:03:42] Speaker 03:
But factor one under the new statute is identification of the issues adjudicated.

[00:03:47] Speaker 03:
Would you say that at minimum, at least that needs to be explicitly identified in the decision in order for, in a post AMA world, there to be an appealable order?

[00:04:01] Speaker 02:
Yes, Your Honor.

[00:04:03] Speaker 02:
The veteran has to understand which issues were adjudicated, and if that's not in the explicit decision.

[00:04:09] Speaker 04:
You're starting to say something a little different.

[00:04:11] Speaker 04:
If a veteran would understand, that sounds just a little bit different than what Judge Stark's question posed, which was, does the identification of the different issues or claims need to be explicitly stated in the decision?

[00:04:26] Speaker 04:
And then you came back and said, well, as long as the veteran understands what the issue is, yes, it's got to be in there.

[00:04:33] Speaker 02:
Right.

[00:04:33] Speaker 02:
Yes.

[00:04:33] Speaker 02:
The answer is yes.

[00:04:34] Speaker 02:
I wanted to be clear that I'm not asking for sort of a magic words analysis of, you know, does it does it use like a separate section of it?

[00:04:42] Speaker 02:
of its decision to say, here are the issues adjudicated, list one, two, three, four, as long as it's in the explicit decision.

[00:04:49] Speaker 04:
It has to be there.

[00:04:51] Speaker 04:
It has to be there somewhere.

[00:04:52] Speaker 04:
You say it has to be there.

[00:04:53] Speaker 04:
What is the it?

[00:04:55] Speaker 02:
B1, the identification of the issues adjudicated.

[00:04:58] Speaker 02:
So in answer to that question.

[00:04:59] Speaker 01:
Constructive discharge, or COD, whatever those words are.

[00:05:03] Speaker 01:
Character of discharge, yes.

[00:05:04] Speaker 01:
Yeah, that has to be in there somewhere.

[00:05:06] Speaker 01:
It has to be in there that that was an issue that they were adjudicating, even if

[00:05:12] Speaker 01:
It isn't maybe fully fleshed out.

[00:05:15] Speaker 01:
Even if maybe the other seven factors, six factors aren't met, if at least it's clear the board adjudicated that issue because they expressly said so, then he can go to the board and say inadequate decision, didn't meet the notice requirements, go back down and address the other six requirements.

[00:05:32] Speaker 01:
But at least he's on notice that he has, that there is an issue that the board addressed.

[00:05:37] Speaker 01:
Is that fair?

[00:05:39] Speaker 02:
you should say yes I'm just making sure that there's no yes your honor that is fair in this circumstance too there's the there's the problem of the reopening so it's not just that the COD issue was addressed Mr. Hamill needs to know did you reopen the claim and address it on the merits or did you say there was no new and material new and relevant evidence and that's the decision so the identification of the issue addressed

[00:06:05] Speaker 02:
whether it's COD or request to reopen, yes, there has to be that identification and there's no identification here.

[00:06:12] Speaker 03:
What I'm understanding is on the list of seven, from that answer you're saying it's not enough just to explicitly check the box for number one, identification issues adjudicated, you say explicitly

[00:06:26] Speaker 03:
At least some other factor of the remaining six also has to be identified.

[00:06:30] Speaker 03:
Maybe it's number five, the elements that were not satisfied leading to the denial.

[00:06:35] Speaker 02:
Yes, Your Honor.

[00:06:36] Speaker 02:
Number five was exactly the one I was going to go to next.

[00:06:39] Speaker 03:
So one and five have to be explicit.

[00:06:42] Speaker 03:
And just by the way, that means even if every reasonable person reading the board decision would know that one and five were decided, if it's not explicitly said that one and five are done,

[00:06:54] Speaker 03:
then you don't have an appealable order, right?

[00:06:56] Speaker 03:
That's your position.

[00:06:59] Speaker 02:
I'm not sure of the hypothetical in which you could understand those things without it being explicit.

[00:07:04] Speaker 02:
That's the point.

[00:07:04] Speaker 04:
Let me give you a hypothetical then.

[00:07:06] Speaker 02:
Yeah.

[00:07:06] Speaker 04:
What if a claimant seeks an increased rating for some disability and also is claiming a TDIU?

[00:07:18] Speaker 04:
Right.

[00:07:19] Speaker 04:
And then the VA comes back and says, OK.

[00:07:23] Speaker 04:
Mr. Klement, we had a medical examination done and we've looked at your condition and we just don't see any evidence for any increase in your rating.

[00:07:34] Speaker 04:
And so your current rating is at 40% and your request for an increased rating is denied, period.

[00:07:43] Speaker 04:
The decision doesn't say anything about TDIU and doesn't give any reasoning for why a TDIU itself expressly was denied, but all the reasoning

[00:07:54] Speaker 04:
that was provided in the RO decision, including the weighing of the evidence and everything else with respect to the claim for an increased rating is all there.

[00:08:05] Speaker 04:
It's all satisfied.

[00:08:07] Speaker 04:
Would you say, aha, the TDIU claim is still out there pending?

[00:08:14] Speaker 04:
We don't have a final appealable decision on the TDIU.

[00:08:17] Speaker 04:
Or would you say, just as a matter of pure common sense, of course the TDIU claim was also denied once the VA denied the claim for increased rating?

[00:08:31] Speaker 02:
If the decision rationale, for example, the reasons why the increased rating is denied also identifies the elements that aren't

[00:08:43] Speaker 02:
sufficient for the TDIU because they're the same, then I think there may be space for saying, no, we handled the entire claim.

[00:08:51] Speaker 01:
Wait, wait, wait.

[00:08:53] Speaker 01:
Stop.

[00:08:54] Speaker 01:
Just to stop.

[00:08:57] Speaker 01:
You're saying some conflicting things, and I just want to be clear about what you're saying.

[00:09:01] Speaker 01:
So are you saying that a veteran would have notice, even now when this notice statute exists,

[00:09:09] Speaker 01:
and says what a board decision has to have in it to be a final board decision, you're saying a veteran with no lawyer, no law, this is an unsophisticated veteran who doesn't have a lawyer, is going to know that one of his enumerated claims was denied even though there's no actual mention whatsoever anywhere in an opinion of that particular claim.

[00:09:31] Speaker 02:
I may have misunderstood Judge Chen's hypothetical.

[00:09:34] Speaker 02:
I thought there was sort of a, there was no explanation of what was going on.

[00:09:38] Speaker 02:
But if there's no mention at all of TDIU, when there was a claim for TDIU and there's no indication that they ever reached the TDIU issue under 5104.

[00:09:47] Speaker 02:
No, not no indication they ever reached it.

[00:09:49] Speaker 02:
So you've got to be precise.

[00:09:50] Speaker 02:
There was no discussion of the, that this was an identification of the issues adjudicated.

[00:09:57] Speaker 02:
TDIU is not, if TDIU is not identified as an issue adjudicated in the explicit decision, if there is not,

[00:10:05] Speaker 02:
identification of the elements of the TDIU tonight.

[00:10:08] Speaker 01:
Yeah, I'm just not going to agree with you on all the other stuff.

[00:10:10] Speaker 01:
The elements, I'm not even going to agree with you on number five.

[00:10:13] Speaker 01:
And here's why.

[00:10:14] Speaker 01:
I think it, suppose the board says we, even in this case, we'll take your exact case.

[00:10:22] Speaker 01:
Suppose the board said, and we've also considered your COD requests and they are denied with no explanation.

[00:10:31] Speaker 01:
You don't have, you haven't satisfied board and testified number 5, you surely have an appealable decision to go to the board and those circumstances and you'll say to the board, they didn't meet the notice requirements.

[00:10:41] Speaker 01:
I have no idea why they denied my claim.

[00:10:44] Speaker 01:
The fact that it was mentioned, the fact that the board is saying we're denying it.

[00:10:48] Speaker 01:
It seems to me enough to put the veteran on notice, they now have an appealable issue.

[00:10:52] Speaker 02:
Yes, absolutely.

[00:10:53] Speaker 02:
Because that's an explicit decision.

[00:10:55] Speaker 02:
And now we're just in eight.

[00:10:56] Speaker 02:
You failed to comply with 51-04.

[00:10:58] Speaker 02:
It's an appeal to the board.

[00:10:59] Speaker 03:
Well, if you're agreeing with that, then I think your position is that the explicit decision, the only one of these seven factors that needs to be explicitly on the face somewhere in the decision is number one.

[00:11:16] Speaker 03:
And all the others,

[00:11:18] Speaker 03:
It'd be better if they're there, but maybe if you reasonably understand them, maybe various different.

[00:11:24] Speaker 02:
If you have that explicit, if you have number one explicitly, the rest is just an appeal to the board.

[00:11:28] Speaker 02:
That's right, Ron.

[00:11:29] Speaker 04:
I think the facts of this case, if the discharge status item was mentioned somewhere in the RO's decision, but then there's no actual formal commentary that, oh, by the way, your request for an upgrade of discharge status is denied,

[00:11:49] Speaker 04:
Just the fact that it was identified, that would satisfy factor one of new 5104, and that would be enough to tell the veteran, okay, not only do I have an appealable decision on my service-connected claim, I also now have an appealable decision on my discharge.

[00:12:09] Speaker 02:
When you say mention your honor, if it's identified as one of the things being adjudicated, then yes, that would be enough.

[00:12:17] Speaker 02:
That doesn't happen here.

[00:12:18] Speaker 01:
You mean if it's in the background section.

[00:12:20] Speaker 01:
Oh, there was this claim.

[00:12:21] Speaker 01:
and never mentioned again, maybe not enough, but what if at the tail end of the thing it says, and we have rejected all of the veterans claims.

[00:12:27] Speaker 01:
Then even though it's not mentioned in the, we've rejected all the veterans claims, it was mentioned up above.

[00:12:33] Speaker 01:
So it was clearly on the table for resolution.

[00:12:37] Speaker 01:
And even though they didn't say, and we reject the COD claim, they're saying we rejected all of the claims.

[00:12:42] Speaker 01:
Like that would be enough, wouldn't it?

[00:12:43] Speaker 01:
Right.

[00:12:43] Speaker 01:
Your honor, if there's a list and to be clear, let me,

[00:12:46] Speaker 01:
I didn't let you answer.

[00:12:48] Speaker 02:
No, I was answering.

[00:12:50] Speaker 02:
Yes.

[00:12:50] Speaker 02:
If there's a list of here are your claims and then at the end it says, and we're rejecting everything else, that is explicit.

[00:12:57] Speaker 01:
But to be clear, you're not saying that that would be okay.

[00:13:01] Speaker 01:
that would still fail to comply with the notice requirement, but what it would do is trigger for the veteran go to the board now and complain that they didn't do fulfill the notice requirement.

[00:13:11] Speaker 02:
Right.

[00:13:11] Speaker 02:
You have an explicit decision that you can appeal to the board and one of your arguments to the board would presumably be a 5104 deficiency.

[00:13:19] Speaker 04:
I want to return to my TDIU hypothetical.

[00:13:24] Speaker 04:
I mean, in my example in which the RO decision gives, you know, a full evaluation

[00:13:31] Speaker 04:
the increased rating claim, and then gives all the detailed reasons for why the VA is denying that claim.

[00:13:40] Speaker 04:
And of course, all of the reasoning and logic behind the denial of that claim would necessarily equally apply to the denial of a copending TDIU claim.

[00:13:55] Speaker 04:
Initially, it sounded like

[00:13:58] Speaker 04:
you were saying, well, maybe that's a circumstance where you don't actually have to say the magic word TDIU in the decision.

[00:14:05] Speaker 04:
But are you actually, I want to get your final answer on that.

[00:14:11] Speaker 04:
Because that is kind of a classic example of where the implicit denial rule would come into play.

[00:14:18] Speaker 04:
It's sort of like, at best, there's just harmless error here.

[00:14:25] Speaker 04:
it's so painfully clear that all of the reasoning and logic would be identical to the denial of the TDIU claim.

[00:14:36] Speaker 02:
Right.

[00:14:36] Speaker 02:
So Mr. Hamill's argument is that 5104 does require the explicit identification of the issues adjudicated and in your hypothetical

[00:14:47] Speaker 02:
that is not sufficient for an implicit denial.

[00:14:49] Speaker 02:
However, as an alternative, this court can say, this is not a TBIU case, we don't want to go that far.

[00:14:57] Speaker 02:
This court could rule in the alternative that implicit denials under the AMA cannot extend to

[00:15:06] Speaker 02:
whether a claim has been reopened, for example, right?

[00:15:09] Speaker 02:
You need to have enough to understand whether in fact the claim was reopened or was.

[00:15:16] Speaker 01:
That makes no sense.

[00:15:17] Speaker 01:
I'm sorry.

[00:15:18] Speaker 01:
But the idea that we could somehow split the baby and say implicit denial doesn't apply when it's asked for reopened, but it does apply when you're asking for an increased rating and nothing is mentioned.

[00:15:30] Speaker 01:
The fact, if you base, if you have grounded,

[00:15:33] Speaker 01:
your position in the AMA and the statutory change, there is nothing I see in this statutory language that supports the split the baby approach you just tried to hand to Judge Chen, which makes no sense for me.

[00:15:45] Speaker 02:
By the way, that's a friendly question.

[00:15:55] Speaker 02:
fight with friendly hypotheticals, I was simply saying, I understand that this is not a TDIU case.

[00:16:02] Speaker 02:
And the facts of this case, they're so devoid of similar reasoning in all of the seven factors.

[00:16:08] Speaker 02:
You don't have to go that far to understand that Mr. Hamill did not receive an implicit denial in May 2021.

[00:16:15] Speaker 02:
Thank you.

[00:16:37] Speaker 00:
Good morning, Your Honors.

[00:16:38] Speaker 00:
May it please the court?

[00:16:40] Speaker 00:
Before I turn to the question of the implicit denial post AMA specifically, I do want to highlight the fact that there are multiple alternative paths to affirmance of what the Veterans Court did here that don't traverse through the implicit denial question, including both mootness and the alternative adequate means under mandamus.

[00:17:01] Speaker 00:
And so if the court didn't want to address the implicit denial rule at all, it can still affirm the decision of the Veterans Court.

[00:17:09] Speaker 04:
And just curious, all of this is really the backdrop is all these veterans trying to get a new decision on their discharge status.

[00:17:20] Speaker 04:
And in the VA expressly telling everyone,

[00:17:24] Speaker 04:
We're working our way through making sure all these different people get their, you know, discharge status review with a decision on that.

[00:17:34] Speaker 04:
Where's that?

[00:17:35] Speaker 00:
So I think both.

[00:17:37] Speaker 00:
Right.

[00:17:37] Speaker 00:
So Mr. Hamill originally got some explicit denials that he didn't appeal.

[00:17:42] Speaker 00:
And then in 2024, there were the liberalizing changes in the regulation.

[00:17:46] Speaker 00:
in terms of the circumstances in which when you have an other than honorable discharge, the VA will nevertheless... So a year or more has passed and where are we now with that work that the VA has promised to do?

[00:18:01] Speaker 00:
I'm not sure how many people have requested re-examination.

[00:18:05] Speaker 00:
So the regulation when it was liberalized, it specifically said that if you want to come back and sort of ask us to revisit your character of discharge determination in light of these liberalizing changes, we will do that.

[00:18:18] Speaker 00:
So I don't have the numbers of how many people have asked for that.

[00:18:23] Speaker 01:
Just like a housekeeping matter sort of.

[00:18:25] Speaker 01:
So whatever, if we do decide this implicit denial question, this only affects

[00:18:31] Speaker 01:
post AMA cases, right?

[00:18:34] Speaker 01:
So implicit denial has existed all the way prior to the AMA and the AMA is relatively recent.

[00:18:41] Speaker 01:
And so let me give you, for example, if we get some veteran that says, oh, my claim from 1960 that you didn't expressly address

[00:18:50] Speaker 01:
Now I'm going to say it wasn't implicitly denied.

[00:18:53] Speaker 01:
That's not going to be affected by anything we do today, correct?

[00:18:56] Speaker 01:
Because the AMA did not expressly indicate that it is retroactive and that the veterans should have always gotten this level of notice.

[00:19:05] Speaker 00:
That's right.

[00:19:05] Speaker 00:
I think that even if the court were to abolish the implicit denial rule post AMA, that would maintain sort of so long as we have legacy claims, the legacy rules apply.

[00:19:17] Speaker 00:
Now, I don't think the court should abolish the implicit denial rule post AMA either.

[00:19:21] Speaker 00:
And I think sort of in terms of the argument we heard this morning, it was a significant retreat from the argument we saw in the briefs and one that really effectively accepts

[00:19:34] Speaker 00:
the implicit denial world and just challenges the facts of this case and the application of those.

[00:19:40] Speaker 04:
That's for sure.

[00:19:41] Speaker 04:
I think, yes, maybe their position today is a little different from what they briefed.

[00:19:48] Speaker 04:
But their position quite clearly would be a dramatic haircut on the implicit denial rule.

[00:19:56] Speaker 04:
I mean, if the first

[00:19:58] Speaker 04:
you know, element of new 5104B has to be satisfied in every decision in order for that decision to be an appealable decision.

[00:20:06] Speaker 04:
That's pretty close to knocking out the implicit denial rule.

[00:20:12] Speaker 00:
I agree with that.

[00:20:12] Speaker 04:
So I don't think we can say here today together that, oh, this is just an application of a lot of facts now.

[00:20:20] Speaker 04:
This is what I heard you say 30 seconds ago.

[00:20:22] Speaker 00:
Sure.

[00:20:22] Speaker 00:
I think if their position, well, two things.

[00:20:26] Speaker 00:
I think the court should reject the position.

[00:20:29] Speaker 00:
We know that already.

[00:20:32] Speaker 00:
But I think sort of in the questioning back and forth, the answer sort of kept going back and forth between it needs to be explicit and the veteran has to understand and the veteran would only understand if it's explicit.

[00:20:45] Speaker 00:
And so with the implicit denial rule, it has always been a notice provision, and it has always been context specific in terms of what the veteran would actually understand.

[00:20:54] Speaker 00:
And is there enough in the decision that the veteran, a reasonable veteran would look at it and know that VA has decided not to give you what you want?

[00:21:02] Speaker 01:
Isn't it clear based on this, the new 5104, that what you just described would absolutely not satisfy the seven notice points that Congress now requires

[00:21:16] Speaker 01:
for decisions or whatever, VA decisions to have in them.

[00:21:21] Speaker 00:
Yes, and I think that's always been true.

[00:21:22] Speaker 00:
The implicit denial rule has always sort of accepted as final appealable decisions, even if you don't meet necessarily all of the elements that 5104B would require for an explicit decision.

[00:21:35] Speaker 00:
There are more boxes to check now, but the fundamental equation sort of doesn't change.

[00:21:44] Speaker 00:
there's sort of really no reason to split B1.

[00:21:48] Speaker 01:
You don't think that Congress, as evidenced by all of the history that led up to this and the adoption of 5104, was trying to make it clear that veterans must be given more and clearer notice by the VA when they make decisions adjudicating their claims?

[00:22:09] Speaker 00:
I think they do, but I think that sort of conflates

[00:22:14] Speaker 00:
you know, whether or not a decision is correct with whether or not it's appealable.

[00:22:18] Speaker 00:
And so the implicit denial rule gives you an appealable decision.

[00:22:22] Speaker 00:
When it's clear that VA has decided not to give you what you want, it puts the ball back in your court.

[00:22:26] Speaker 01:
But nowadays, now, the old rule didn't, the old version of 5104 didn't say the notice must identify the issues being adjudicated.

[00:22:36] Speaker 01:
That language wasn't in the old rule.

[00:22:38] Speaker 01:
That's correct.

[00:22:39] Speaker 01:
Okay.

[00:22:39] Speaker 01:
So nowadays, you have, I mean, and this is a non adversarial system,

[00:22:44] Speaker 01:
with an often, not always, but unsophisticated from a legal standpoint, veteran who's applying and dealing with the VA.

[00:22:54] Speaker 01:
If the veteran ever gets to see 5104 and says, oh, well, if the board issued a decision on my claim, it had to have identified the issue adjudicated because that's what the rule requires.

[00:23:06] Speaker 01:
And so my issue adjudicated now, that's what the rule requires.

[00:23:10] Speaker 01:
My issue adjudicated isn't in this claim, so I can't go to the board now.

[00:23:14] Speaker 01:
Why don't you think possibly when dealing with an unsophisticated veteran, they're not going to now, the implicit denial rule has sort of been changed by Congress because the veteran, if he even looks at the law, is going to think this decision didn't decide my case because they have to mention it expressly now according to the law and they didn't.

[00:23:36] Speaker 00:
So I think two things on that, Your Honor.

[00:23:38] Speaker 00:
One, that doesn't differentiate B1 from B2 through 7.

[00:23:42] Speaker 00:
And so if we accept the world that you can have a final appealable decision and that is flawed under B, under the rest of 5104B and that you can then raise that on appeal and say, hey,

[00:23:57] Speaker 00:
You haven't given me all of the information that Congress says I'm now entitled to have.

[00:24:02] Speaker 00:
I don't see any basis to differentiate B1 from B2 through 7 on that.

[00:24:07] Speaker 01:
You don't, really?

[00:24:08] Speaker 01:
Because that kind of seems a little bit, I can.

[00:24:13] Speaker 01:
If I'm told no to something, I understand the answer is no.

[00:24:19] Speaker 01:
I may not know the reasons why the answer is no, but I understood I've been told no.

[00:24:24] Speaker 01:
I might have arguments about why I should have been told yes.

[00:24:27] Speaker 00:
But at least I know I've been told no.

[00:24:30] Speaker 00:
And so I think that the implicit denial rule already gets at that, right?

[00:24:34] Speaker 00:
It is a fact-bound question of is there sufficient notice in the decision that a reasonable veteran would understand that he's been told no, even if the words sort of explicitly are not there.

[00:24:48] Speaker 04:
What if the AMA could be read to say no more guessing games?

[00:24:55] Speaker 04:
that, you know, we're out of the business of having an implicit denial rule, and we're not going to leave these veterans in a position where they have to deduce what the decision encompasses.

[00:25:10] Speaker 04:
And we do need, in fact, to see some actual clarity, not divine clarity, but actual clarity

[00:25:17] Speaker 04:
right there in the four corners of the RO's decision.

[00:25:20] Speaker 04:
And so, therefore, you need to actually mention the assorted different claims that are being decided in the decision.

[00:25:29] Speaker 04:
That wouldn't be an unreasonable choice by Congress, right?

[00:25:36] Speaker 00:
Yes, and I think the better reading of the AMA is to preserve the implicit denial rule.

[00:25:42] Speaker 00:
And the reason for that is because,

[00:25:45] Speaker 00:
Otherwise, so let's say you have a decision and it is obvious in this case, for example, the Veterans Court found that it was obvious there was only one way to read this decision and that was that they were not revisiting the character of discharge question.

[00:26:00] Speaker 00:
So, you know that VA is not giving you what you want.

[00:26:06] Speaker 00:
But it didn't say so explicitly.

[00:26:07] Speaker 00:
We don't have the explicit reference to a character of discharge.

[00:26:11] Speaker 00:
The options are twofold.

[00:26:12] Speaker 00:
You can either, if it's a final appealable decision, you get to go through the appeal process.

[00:26:18] Speaker 00:
There is structure and procedure where you can go back to VA and say, hey, you're not giving me what I want, but you haven't fulfilled all of the rules.

[00:26:27] Speaker 00:
You haven't given me all the information I need.

[00:26:29] Speaker 00:
Here's all the reasons why you're wrong.

[00:26:31] Speaker 00:
That's what the implicit denial rule allows you to do.

[00:26:34] Speaker 00:
Without it, they're trapped in limbo.

[00:26:36] Speaker 00:
You don't have a final appealable decision, and you're stuck either writing letters to VA to try to get them out of them, or you have to go to mandamus.

[00:26:43] Speaker 04:
And so we're... There's clarity with the requirement that element one now of 5104 has to be complied with every single time, because then you know you don't have a decision on a particular claim, because it was mentioned in the decision.

[00:27:03] Speaker 00:
But you're still trapped in them.

[00:27:04] Speaker 04:
And so then it's incumbent upon the VA to, quote unquote, do the right thing, which is to actually answer for every single different claim that is submitted by the veteran rather than sub-silencio denying claims left and right.

[00:27:23] Speaker 00:
Well, I don't think they're sub-silencio denying claims left and right.

[00:27:25] Speaker 00:
We are, as the implicit denial rule has always said, that there has to be enough explicit things

[00:27:30] Speaker 00:
that would put a person on reasonable notice that VA is also not giving you the benefits of the implicitly denied claim.

[00:27:39] Speaker 00:
But fundamentally, I think sort of, yes, it's always better if VA does everything correct and does it right every time.

[00:27:47] Speaker 04:
Well, here, let me ask the question differently.

[00:27:50] Speaker 04:
What happens to the VA if this court takes away the implicit denial rule?

[00:27:56] Speaker 04:
Is it going to be mass hysteria?

[00:27:59] Speaker 00:
I think it would be

[00:28:01] Speaker 00:
really sort of for practical reasons problematic given the continued sort of informality that the system intentionally contains.

[00:28:11] Speaker 00:
So the implicit denial rule originally grew out of the implicit claim doctrine.

[00:28:16] Speaker 01:
But the new rule, you agree the AMA requires all of this notice to be given.

[00:28:22] Speaker 01:
So the implicit denial rule is just us letting the VA not do its job.

[00:28:27] Speaker 01:
because all of these things are required.

[00:28:29] Speaker 01:
So there's no, the VA isn't doing, don't you agree that the VA has not satisfied its statutory obligation if these seven criteria are not met?

[00:28:39] Speaker 00:
Yes, but I don't think the implicit denial rule is letting the VA not do its job.

[00:28:43] Speaker 00:
I think what the implicit denial rule does is it allows veterans to continue pressing their claim with VA and to ultimately get all of the statutory mandated notice, right?

[00:28:54] Speaker 00:
I think Mr. Hamill's argument ultimately conflates

[00:28:57] Speaker 00:
a correct decision that withstands appellate review with an appealable decision that you can take through appellate review.

[00:29:05] Speaker 04:
And... I don't think they're conflating a correct decision with an appealable decision.

[00:29:10] Speaker 04:
I think they're... I think they are talking about an adequate decision, an adequately written decision with notice of an appealable decision.

[00:29:25] Speaker 04:
And so those two things

[00:29:27] Speaker 04:
are much more closely related than a correct on the merits based decision as you would put it.

[00:29:33] Speaker 00:
Sure, but I think the implicit denial rule already takes account of the adequate to put the veteran on notice decision.

[00:29:41] Speaker 00:
That is the basis for the implicit denial rule, that it's a factual determination

[00:29:46] Speaker 00:
of whether there is enough in this particular decision to put a veteran on notice.

[00:29:52] Speaker 00:
And it could be that there are circumstances where it wouldn't be and then it's not, the implicit denial rule doesn't apply.

[00:29:58] Speaker 00:
But the sort of disagreement I think that,

[00:30:04] Speaker 00:
sort of we now have with Mr. Hamill and the sort of the tension that we're playing out here.

[00:30:10] Speaker 04:
I found the post hoc application of the post denial rule, implicit denial rule in this particular case quite peculiar in how it stood apart from this court's familiarity with the implicit denial rule, which had always been used in the context of two claims that are very factually closely related.

[00:30:34] Speaker 04:
And the example of a claim for an increased rating and then an implied claim for TDIU, those are factually very closely related.

[00:30:43] Speaker 04:
And my understanding is that is the kind of instance that we have seen where we said that's like an appropriate application of the implicit denial rule.

[00:30:55] Speaker 04:
Here we have two very different kinds of requests, one for an upgrade of discharge status,

[00:31:01] Speaker 04:
and the other service-connected benefits.

[00:31:05] Speaker 04:
And so I don't think this court has ever seen disparate claims like that where the decision on one of those disparate claims has been touted as being an implicit denial of the other disparate claim.

[00:31:18] Speaker 04:
Can you think of a federal circuit opinion that has facts even remotely like this one?

[00:31:26] Speaker 00:
Factually, I agree with you that most of the other previous examples have been sort of... I think the answer is all, not most.

[00:31:35] Speaker 00:
I think that's right.

[00:31:36] Speaker 00:
But the way that the doctrine has been talked about is that it has to be that, I think the Steele case talked about this most recently, that the finding or holding that is explicitly made has to be incompatible with sort of a grant of the other claim.

[00:31:53] Speaker 00:
And so here, what the Veterans Court held, and I think ultimately, obviously, once we get to sort of an application of law to fact question that is unreviewable, but at Appendix Page 6, the May 2021 decision more than alludes to the relationship, it turns on the fact of the COD.

[00:32:15] Speaker 00:
And so when we look at the decision here,

[00:32:18] Speaker 00:
It specifically mentions the prior character of discharge determination in the evidence that was considered.

[00:32:23] Speaker 00:
It only looks at the Chapter 17 benefits, which you only ever get to if you have a dishonorable character of discharge determination.

[00:32:33] Speaker 01:
But that's because you already had a dishonorable discharge determination.

[00:32:36] Speaker 01:
He was saying, I want you to reopen and look at that again.

[00:32:40] Speaker 01:
So, of course, the benefits piece.

[00:32:42] Speaker 01:
If you don't look at the COD question, the default is he's in constructive dishonorable discharge status.

[00:32:50] Speaker 01:
So, of course, they would only go on to decide the rest if they were oblivious to the COD thing.

[00:32:59] Speaker 01:
Oblivious.

[00:33:00] Speaker 01:
If you talk to the board judges, I missed it, sorry, my bad, the opinion they wrote would look exactly the same as what we got.

[00:33:07] Speaker 01:
There's no difference.

[00:33:07] Speaker 01:
There's nothing in the opinion that's directed to that issue.

[00:33:13] Speaker 00:
So I don't think I agree with that, Your Honor, because the board couldn't be oblivious to the character of discharge issue.

[00:33:20] Speaker 00:
Well, they knew the discharge status.

[00:33:23] Speaker 04:
There's no suggestion in the decision that they actually considered a revisiting of the discharge status.

[00:33:30] Speaker 04:
I mean, you're saying they necessarily must have because they only gave a certain type of service connection evaluation.

[00:33:37] Speaker 04:
But that equally could be based on the fact that they were just oblivious to even

[00:33:42] Speaker 04:
considering the question of whether it was appropriate to revisit the discharge status.

[00:33:49] Speaker 04:
In my view, there's two equally plausible readings of what's going on here with respect to the discharge status.

[00:33:57] Speaker 04:
I'm not saying that your interpretation is completely wrong, but at a minimum, it's ambiguous.

[00:34:06] Speaker 04:
And that's why I'm wondering, huh, is this the right way to say, well, of course it was implicitly denied because

[00:34:12] Speaker 04:
necessarily they considered the issue and dismissed it, when actually it's quite ambiguous.

[00:34:19] Speaker 04:
I understand we're talking about application of law to fact right now, but at the same time, when we're dealing with very disparate claims like this, it really makes one wonder if people should even be entertaining the application of implicit denial rule at all.

[00:34:35] Speaker 00:
I mean, what I will say is that I think what's not ambiguous is that they were not going to upgrade his character of discharge.

[00:34:42] Speaker 00:
And therefore, from a... Well, they didn't.

[00:34:45] Speaker 04:
We know that.

[00:34:46] Speaker 00:
I mean, he's actually gotten it since then.

[00:34:48] Speaker 00:
Mr. Hamill now has benefits.

[00:34:49] Speaker 00:
He went back to the military for his upgrade.

[00:34:51] Speaker 00:
But I think what is unambiguous in this decision and what the board found was that the only way to read this decision was that they were not going to give him a different character of discharge.

[00:35:05] Speaker 00:
And so that put the ball back in his court.

[00:35:06] Speaker 00:
And if he disagreed with that decision, he could then appeal it and raise

[00:35:11] Speaker 00:
all of the issues that he raises now about the sufficiency of the notice.

[00:35:16] Speaker 00:
And he could take it, for example, to higher level review and ask those questions there.

[00:35:20] Speaker 04:
Let me ask you a different question.

[00:35:22] Speaker 04:
It looked like you were about to respond to it earlier.

[00:35:25] Speaker 04:
In terms of the purpose of the implicit denial rule, you seem to be, you were about to get to the point that, well, there are so many implicit claims that are part of the system.

[00:35:40] Speaker 04:
informal claims that are hard to read or hard to discern and so in that way there are quote unquote hidden claims running around throughout the VA and so therefore the implicit denial rule is an important feature for the VA to have to address implicitly filed claims.

[00:36:04] Speaker 04:
Was that what you were trying to say?

[00:36:06] Speaker 00:
I think they're related.

[00:36:07] Speaker 04:
This is important to understand because just because veterans have the opportunity to submit claims implicitly, I'm not sure that means what's good for the vets is also good for the VA.

[00:36:27] Speaker 04:
in this vet-friendly claimant system.

[00:36:30] Speaker 04:
So I just want to ask you the question.

[00:36:33] Speaker 04:
I also want you to be careful in how you respond to suggest that, oh, of course, we need an implicit denial rule so that we can clean out implicitly filed claims.

[00:36:45] Speaker 00:
Right.

[00:36:45] Speaker 00:
And I don't think I would not go that far.

[00:36:48] Speaker 00:
What I was saying is that if you trace the origins of the implicit denial rule, it comes out as an outgrowth of the implicit claim doctrine.

[00:36:57] Speaker 00:
So it's sort of named by name for the first time explicitly, and I think Deshotel.

[00:37:03] Speaker 00:
But if you look at that case, what the court says is we're just applying Andrews.

[00:37:07] Speaker 00:
And if you look at Andrews, Andrews was itself just applying Roberson, which was the recognition of the implicit TDIU claim.

[00:37:15] Speaker 00:
And so I do think they are sort of related to each other in that,

[00:37:22] Speaker 00:
given the sort of informality that we intentionally maintain in the VA system, that sort of a practical backstop that allows for some finality and repose is that if everybody understands sort of that, yeah, we've denied your claim, the ball's back in your court, you now sort of have to decide

[00:37:44] Speaker 00:
whether you're going to keep pressing it forward or not.

[00:37:47] Speaker 00:
Obviously, veterans are not required to appeal adverse decisions.

[00:37:50] Speaker 00:
Mr. Hamill didn't his first two explicit COD denials.

[00:37:54] Speaker 00:
That sort of is a practical necessity, I think, that is a backstop to the implicit claim system and the lack of formality.

[00:38:05] Speaker 01:
Okay, Council, I think that we should, we're way over time, so let's give her some rebuttal time, please.

[00:38:13] Speaker 01:
Three minutes.

[00:38:19] Speaker 02:
Thank you, Your Honor.

[00:38:21] Speaker 02:
Your Honor, I think the discussion of no more guessing games is exactly correct.

[00:38:25] Speaker 02:
The AMA creates a system where both veterans and the VA have to be much more explicit about what they're doing, and while a veteran can still have implicitly raised claims because it's informal.

[00:38:39] Speaker 04:
the old 5104B did have certain requirements for an adequate proper decision and the implicit denial rule basically runs over that to a certain extent.

[00:38:53] Speaker 04:
The requirement that you give a statement of the reasons for the decision and there is no obvious statement of reasons in implicit denial.

[00:39:03] Speaker 04:
So why, just because we're

[00:39:07] Speaker 04:
You know, decorating the 5104B tree with more ornaments now, post AMA, does that necessarily mean, oh, okay, we forget about the implicit denial rule?

[00:39:18] Speaker 02:
Yes, Your Honor.

[00:39:18] Speaker 02:
The old 5104B required

[00:39:24] Speaker 02:
Notice to be sent and a reason for the decision, but no explicit discussion of here are all your claims that we're adjudicating right here in the explicit way that 5104 be currently does.

[00:39:38] Speaker 02:
This court's decision in Steele is pretty instructive in explaining under the legacy system, you still have an explicit decision.

[00:39:45] Speaker 02:
And that explicit decision, those reasons that are explicitly given have to be enough so that the veteran understands those explicit decisions and rationale.

[00:40:01] Speaker 02:
are also understood to extend to the implicitly denied claim.

[00:40:05] Speaker 02:
And that's at page 1361 of the decision in Steele v. Collins.

[00:40:11] Speaker 02:
Now, as your owner stated, this case is really about the AMA.

[00:40:15] Speaker 02:
And so anything, any cases that are under the legacy system, this case does not reach that, right?

[00:40:24] Speaker 01:
The holding in Steele is still- So you agree with what I asked the government

[00:40:30] Speaker 01:
which is no matter what we do with this case, it is not going to affect the vast majority of cases, you know, where you have board decisions that go back to the 1960s that we still sometimes see being challenged for various reasons, that nothing prior to the AMA will be implicated by this, and that even if we were to eviscerate the implicit denial, that would only be a forward-looking thing post AMA.

[00:40:57] Speaker 01:
That's correct, Your Honor.

[00:40:59] Speaker 03:
What I take to be your refined position this morning, maybe not your preferred position, but at least a position you're offering us is that we only need to make a modification to the implicit denial rule to require all decisions to explicitly address the new factor one in 5104B.

[00:41:16] Speaker 03:
I take that as your, at least an offer you're making to us.

[00:41:20] Speaker 03:
The government says there's no textual basis for that, for us to distinguish and call out,

[00:41:26] Speaker 03:
you know, number one as opposed to two through seven in the statute.

[00:41:30] Speaker 03:
Do you have any response to that statutory textual argument?

[00:41:33] Speaker 02:
Yes, Your Honor.

[00:41:34] Speaker 02:
The implicit denial doctrine by definition does not deal with flawed decisions.

[00:41:40] Speaker 02:
It's dealing with nonexistent decisions.

[00:41:42] Speaker 02:
So as soon as you get that identification of the issues adjudicated under B1, you may now have an explicit decision that can be appealed for being flawed.

[00:41:55] Speaker 02:
which you wouldn't necessarily get with if it just lists here are all the laws that we use to make your decision, right?

[00:42:03] Speaker 02:
You do need to understand explicitly what issues have been adjudicated.

[00:42:10] Speaker 01:
Okay.

[00:42:11] Speaker 01:
Thank you, counsel.

[00:42:11] Speaker 01:
We thank both counsel.

[00:42:12] Speaker 01:
This case is taken under submission.