[00:00:00] Speaker 03:
24-1060 Harris versus Collins.

[00:00:04] Speaker 03:
Counsel, please proceed.

[00:00:06] Speaker 02:
Good morning.

[00:00:07] Speaker 02:
May it please the court, Kenny DeHawkis representing Mr. Harris.

[00:00:10] Speaker 02:
On his behalf, I want to thank this court for the opportunity to present his appeal.

[00:00:15] Speaker 02:
With this appeal, Mr. Harris challenges the Veterans Court's decision for primarily two errors, each of which supports a remand so the Veterans Court can correctly apply the law.

[00:00:25] Speaker 02:
First, the Veterans Court impermissibly used the presumption of regularity to make a factual finding that is not supported by any record evidence and was never made by the agency in the first instance.

[00:00:36] Speaker 02:
The Veterans Court found that the VA in 2009 mailed certain documents to Mr. Harris' address, but there's no evidence that tells us the VA had his mailing address or any mailing address.

[00:00:47] Speaker 02:
This violates 7261C and the holding and kindvation second.

[00:00:52] Speaker 02:
Similarly, the second error the Veterans Court committed presumed that certain information was included in the mailing, also without any evidence to support such a finding.

[00:01:04] Speaker 02:
The Veterans Court, again, impermissibly used the presumption of regularity to find that the mailing of the claim applications also included information telling Mr. Harris that he had one year to complete the claim.

[00:01:15] Speaker 02:
This is contrary to this court's precedent, primarily in Butler and Miley.

[00:01:19] Speaker 01:
Mr. Yajakos, one concern I have with your case is that some of these questions sound as if they're application of law to fact.

[00:01:29] Speaker 01:
And so can you help me understand how we have jurisdiction in this case?

[00:01:33] Speaker 02:
Right, Your Honor.

[00:01:34] Speaker 02:
Thank you.

[00:01:35] Speaker 02:
So we are not asking this court to review any factual findings at all.

[00:01:40] Speaker 02:
We're looking for from this court is to recognize that the Veterans Court made factual findings in the guise of the presumption of regularity for those two specific facts in particular, in addition to what was in the briefing.

[00:01:55] Speaker 02:
There was no record evidence at all that tells us what Mr. Harris's mailing address was.

[00:02:05] Speaker 02:
The Veterans Court used the presumption of regularity in order to infer that one, the VA had his address, and two,

[00:02:14] Speaker 02:
that the application forms that were sent were sent to that address.

[00:02:20] Speaker 02:
In all the other case law that this court has on this particular subject, there's always something in the record that says where it was mailed to, that there was an address, or in the case of

[00:02:33] Speaker 02:
attachments that the record itself says something was attached, even though those specific documents are not in the record.

[00:02:41] Speaker 02:
And so the presumption of regularity can fill a lot of gaps, but it can't invent facts, which is what the Veterans Court did here.

[00:02:48] Speaker 01:
Is it possible that under the facts of this particular case, where it was a form that was being sent, that it seems to me that

[00:03:00] Speaker 01:
the Veterans Court would look at the facts of the particular case in order to determine whether the presumption applies.

[00:03:08] Speaker 01:
Maybe some of the facts in this particular case are different from the other cases, including that it was blank forms.

[00:03:16] Speaker 01:
either sent or not sent.

[00:03:18] Speaker 01:
And I believe that the document, there's some document that has at least the city identified in which the veteran lived.

[00:03:29] Speaker 01:
Why wouldn't that be enough?

[00:03:30] Speaker 01:
And again, the concern I have is it feels very factual to me.

[00:03:35] Speaker 01:
And I wonder whether it's something I'm even supposed to be considering.

[00:03:41] Speaker 02:
Correct, Your Honor.

[00:03:41] Speaker 02:
I agree that we know from what the record shows that these forms were sent.

[00:03:46] Speaker 02:
I mean, that's obviously the main dispute about whether or not that happened.

[00:03:51] Speaker 02:
But we know that this person wrote in the record that I sent these forms.

[00:03:56] Speaker 02:
We know that there is a city and state.

[00:03:58] Speaker 02:
But beyond that, we don't know what address the VA had for Mr. Harris.

[00:04:03] Speaker 02:
And we don't know whether it was a correct address.

[00:04:05] Speaker 02:
And we definitely don't know where these documents were sent.

[00:04:09] Speaker 02:
And that's our primary dispute with what the Veterans Court did is that they inferred using the presumption of regularity that VA did have his correct address and that they sent these forms to that address.

[00:04:23] Speaker 03:
What's the legal issue?

[00:04:26] Speaker 03:
So we can't resolve fact questions.

[00:04:29] Speaker 03:
We also can't resolve applications of law to fact.

[00:04:31] Speaker 02:
Correct.

[00:04:32] Speaker 03:
So explain to me as clearly as you can what the legal issue is that you think we ought to be reviewing in this case.

[00:04:39] Speaker 02:
It's twofold, Your Honor.

[00:04:40] Speaker 02:
One is that the Veterans Court impermissibly used the presumption of regularity to infer.

[00:04:47] Speaker 03:
Impermissibly used.

[00:04:48] Speaker 03:
Well, before you even finish, that sounds like application of law to fact.

[00:04:53] Speaker 03:
So what's the legal issue?

[00:04:55] Speaker 03:
Because I can't review application of law to fact.

[00:04:56] Speaker 02:
Right.

[00:04:57] Speaker 02:
So the legal issue is that the Veterans Court, Your Honor, made a finding of fact in the first instance in violation of 7261C.

[00:05:06] Speaker 02:
And that finding was that the VA had the correct mailing address and that they sent the forms to that address.

[00:05:15] Speaker 02:
There was no finding by the board.

[00:05:17] Speaker 02:
There was no finding.

[00:05:18] Speaker 02:
There's no record evidence whatsoever of Mr. Harris's address in 2009.

[00:05:24] Speaker 02:
And so the Veterans Court exceeded its jurisdiction, which is the primary issue that we have with this decision.

[00:05:35] Speaker 03:
Where is it that the Veterans Court exceeded its jurisdiction?

[00:05:39] Speaker 03:
Show me where you think it is that they did that.

[00:05:49] Speaker 02:
So page six of the appendix, your honor.

[00:05:59] Speaker 02:
No, not page six.

[00:06:01] Speaker 02:
I'm sorry, page five.

[00:06:13] Speaker 02:
The presumption apply in looking at the paragraph beginning with crediting this argument.

[00:06:22] Speaker 02:
The presumption applies, it makes little sense to presume that VA discharges duty to mail the formal application, but not to presume its discharges duty to mail it to the proper address and with the required notice.

[00:06:34] Speaker 02:
So here, again, the Veterans Court is leveraging the presumption of regularity to make a finding of fact that, again, one, the VA had his address, and two, that it was sent to that address.

[00:06:48] Speaker 02:
In addition to that, with the second error, they doubled down and made another finding of fact that the required notice of the time limit for submitting the application per the regulation was included with that mailing when the evidence only shows that the two forms, the 526 and the 4138, were sent.

[00:07:08] Speaker 01:
So your assertion of the legal error is that the Veterans Court erred by making this fact finding in the first instance.

[00:07:18] Speaker 02:
Correct, John.

[00:07:19] Speaker 01:
Where is that your opening brief?

[00:07:41] Speaker 03:
Page 13.

[00:07:42] Speaker 02:
Page 13, Your Honor.

[00:07:43] Speaker 02:
Right.

[00:07:43] Speaker 02:
So the Veterans Court aired when it expanded the presumption to allow facts not in the record.

[00:07:49] Speaker 02:
And then we cite primarily to kind for the proposition that they can't make findings of fact in the first instance.

[00:07:55] Speaker 02:
That was one of the primary issues in that case in addition to extra record evidence.

[00:08:03] Speaker 02:
And then at the bottom of 14, the Veterans Court ruling serves to allow the court to infer additional facts not in the record when applying the presumption of regularity.

[00:08:12] Speaker 02:
And that's really the focal point of our dispute with this decision, is that there is no record evidence to lean on to make this finding.

[00:08:22] Speaker 02:
And as we know from Kine and we know from other jurisdictional statutes, 7252A, which was cited in Kine, 7261C, 7104A, which is the board's jurisdiction,

[00:08:32] Speaker 02:
They have to make determinations based on the record.

[00:08:35] Speaker 02:
The presumption of regularity is useful to make certain presumptions, but they have to be based in evidence and not just pure speculation, which is what happened here.

[00:08:47] Speaker 02:
And even more egregious, we think the board didn't even make any of these findings whatsoever.

[00:08:54] Speaker 02:
The entirety of the board's findings was that

[00:08:59] Speaker 01:
Do I remember correctly, though, that the argument that was made below to the Veterans Court was that the board erred by applying the presumption of regularity?

[00:09:15] Speaker 02:
I don't believe that's the argument was, Your Honor, that the board did apply the presumption of regularity.

[00:09:23] Speaker 01:
That was the argument made by the veteran in this case.

[00:09:27] Speaker 02:
to the Veterans Court, Your Honor.

[00:09:29] Speaker 01:
That's right.

[00:09:30] Speaker 01:
So now arguing that the board didn't apply the presumption of regularity seems inconsistent.

[00:09:35] Speaker 02:
No, Your Honor.

[00:09:36] Speaker 02:
We're not arguing that the board did not apply the presumption of regularity.

[00:09:39] Speaker 02:
They did.

[00:09:40] Speaker 02:
But they did it incorrectly.

[00:09:42] Speaker 02:
And in the Veterans Court, when it was reviewing the application of this law,

[00:09:49] Speaker 02:
went a step further and inferred additional facts that, one, weren't made by the board and, two, are unsupported by the record.

[00:09:56] Speaker 02:
And what Mr. Harris primarily argued to the Veterans Court was that the board's determination wasn't based on any evidence at all.

[00:10:06] Speaker 02:
And he was essentially, he was primarily asking for the Veterans Court

[00:10:10] Speaker 02:
to look at the duty to assist.

[00:10:11] Speaker 02:
Of course, that's not before this court.

[00:10:14] Speaker 02:
The Veterans Court instead found that there was no duty because it just went ahead and found all the facts, as opposed to ordering the VA to investigate what actually happened and determine what the process is, for instance.

[00:10:27] Speaker 02:
We don't even know what the process is because there's no evidence of record that tells us what the process is.

[00:10:33] Speaker 02:
The Veterans Court relied on 3.155A as a

[00:10:39] Speaker 02:
legal mechanism for triggering the presumption of regularity, but we don't know what the process is.

[00:10:44] Speaker 02:
We do know that they sent something.

[00:10:47] Speaker 02:
They sent the two forms.

[00:10:48] Speaker 02:
That's the extent of the evidence that the evidence shows in this case.

[00:10:54] Speaker 02:
We don't know how they do it, what is included with it, who is sent to.

[00:10:58] Speaker 02:
None of these additional processes are included in the record.

[00:11:04] Speaker 02:
And I think that when you compare that to O'Banion, which the secretary

[00:11:08] Speaker 02:
provided supplemental authority to, this is kind of more of a correct way of

[00:11:18] Speaker 02:
the Veterans Court or the board establishing the presumption where they relied on the M21 to determine what the process is.

[00:11:26] Speaker 02:
And they said, this is the process that was used.

[00:11:29] Speaker 02:
Right now, we just know that a process was used to send these forms somewhere.

[00:11:33] Speaker 02:
And beyond that, we don't know anything else.

[00:11:36] Speaker 02:
The Veterans Court inferred a lot of facts that were beyond its jurisdiction.

[00:11:40] Speaker 04:
Counsel, isn't that asking this court to look behind the curtain and fact-find?

[00:11:46] Speaker 04:
in a way that this court doesn't have jurisdiction to do?

[00:11:50] Speaker 02:
No, not at all, Your Honor.

[00:11:51] Speaker 02:
We are not asking this court to make any factual determinations.

[00:11:54] Speaker 02:
We are simply asking this court to recognize that the Veterans Court

[00:11:57] Speaker 02:
exceeded its jurisdiction when it found, as a factual matter, both that there was an address of record and that the forms were sent to that address, and then, secondarily, that these attachments, notice of the time limits, was also included.

[00:12:15] Speaker 02:
Again, none of these are based on record evidence.

[00:12:17] Speaker 02:
None of these are affirmances of board fact finding.

[00:12:20] Speaker 02:
These were all done by the Veterans Court using the presumption of regularity in an improper way to make findings of fact.

[00:12:28] Speaker 02:
in the first instance.

[00:12:29] Speaker 02:
So we're not asking this court to look at what the facts are, just to recognize that the Veterans Court determined the facts on its own in the first instance.

[00:12:40] Speaker 03:
OK, you want to save the rest of your time for rebuttal?

[00:12:42] Speaker 02:
I do, Your Honor.

[00:12:42] Speaker 02:
Thank you.

[00:12:42] Speaker 02:
Let's hear it from the government.

[00:12:54] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:12:56] Speaker 00:
I heard a lot of questions from my friend on the other side about this Court's jurisdiction, and it is our position that the veteran is asking this Court to apply the presumption of regularity to the facts of this case, which is an issue that is outside this Court's jurisdiction to consider.

[00:13:13] Speaker 00:
Essentially, what the Veterans Court did is it stated the well-established law that the presumption of regularity

[00:13:19] Speaker 00:
presumes that in the absence of clear evidence to the contrary, public officers have properly discharged their official duties.

[00:13:26] Speaker 00:
In this case, looking at the evidence, the facts of the case, the Veterans Court found that the presumption was not rebutted, that the absence of an address or a cover letter having the address and the absence of a blank form in the file

[00:13:42] Speaker 00:
were just insufficient as a factual matter to rebut the presumption of regularity.

[00:13:46] Speaker 03:
Well, I think that what most of the oral argument focused on was an argument that the Veterans Court has been making some fact findings in the first instance in this case regarding those issues.

[00:14:01] Speaker 03:
I mean, we agree, don't we?

[00:14:02] Speaker 03:
The Veterans Court, apart from harmless error, can't make fact findings.

[00:14:05] Speaker 03:
That's true, isn't it?

[00:14:06] Speaker 03:
Yes.

[00:14:07] Speaker 03:
So can you respond to his precise argument that was made and most of our time was spent on this morning about whether the Veterans Court made fact findings in the first instance?

[00:14:17] Speaker 00:
The Veterans Court did not make any fact findings in the first instance.

[00:14:21] Speaker 00:
The Veterans Court never said that there was an address in the file that would have been a fact finding.

[00:14:28] Speaker 00:
Rather, the Veterans Court applied the presumption of regularity based solely on the legal requirement in 3.155

[00:14:36] Speaker 00:
which requires that an application form will be forwarded.

[00:14:40] Speaker 00:
That's what the Veterans Court did.

[00:14:42] Speaker 00:
There was no fact finding.

[00:14:44] Speaker 03:
But how can you forward something if you don't have the person's address?

[00:14:50] Speaker 00:
First of all, there could have been an address in the file.

[00:14:54] Speaker 00:
I believe there was just a question of whether there was a cover letter that had the address.

[00:14:59] Speaker 00:
But regardless, the presumption functions.

[00:15:02] Speaker 03:
But are we to presume that a file has an address in it?

[00:15:07] Speaker 03:
His argument is this veteran's file doesn't even have his address in it.

[00:15:12] Speaker 03:
So how can you presume?

[00:15:14] Speaker 03:
I think that if the address had been in the file,

[00:15:18] Speaker 03:
then we could presume that the Veterans Court mailed it to his address as part of the presumption of regularity.

[00:15:23] Speaker 03:
But if there's not even an address in the file, how do we presume the Veterans Court mailed it to an address that isn't in the file?

[00:15:31] Speaker 03:
And you're saying I don't have to, because if the Veterans Court found his address was in the file, we've got to agree that's a new fact finding.

[00:15:38] Speaker 03:
I don't see anything like that in the board's decision.

[00:15:40] Speaker 03:
So if we have to conclude

[00:15:42] Speaker 03:
the Veterans Court determined that his address was in the file, that would be a new fact finding by the Veterans Court, which they can't do.

[00:15:50] Speaker 03:
So how do I get past all of this?

[00:15:52] Speaker 03:
I'm having trouble seeing my way through it.

[00:15:55] Speaker 00:
Correct.

[00:15:55] Speaker 00:
Again, the Veterans Court did not make a fact finding that there was an address in the file.

[00:16:00] Speaker 00:
The Veterans Court presumed, based on 3.155A, that because the regulation says an application form will be forwarded, that an application form

[00:16:11] Speaker 00:
was indeed forwarded.

[00:16:13] Speaker 00:
There was no necessity.

[00:16:14] Speaker 03:
OK.

[00:16:15] Speaker 03:
On page five of the Veterans Court's opinion, it says, I'm going to give you a chance to get it up.

[00:16:32] Speaker 03:
On page five, I'm starting with a paragraph crediting this argument regarding the address.

[00:16:36] Speaker 03:
Do you see that one?

[00:16:37] Speaker 03:
Yes.

[00:16:37] Speaker 03:
Crediting this argument regarding the address, along with Mr. Harris's assertion, the record must affirmatively show the formal application was accompanied by notice.

[00:16:46] Speaker 03:
It would strip the presumption of regularity of all practical utility.

[00:16:49] Speaker 03:
Whereas here the presumption applies, it makes little sense to presume the VA discharged its duty to mail, but not to presume it discharged its duty to mail to the proper address.

[00:17:01] Speaker 03:
So I'm just a little confused.

[00:17:04] Speaker 03:
It looks like the VA, that the Veterans Court is concluding that somehow it should presume that the VA mailed a form and mailed it to the proper address, even though the record here doesn't indicate that they had any address on file for the veteran.

[00:17:25] Speaker 03:
So how do we, that seems like a leap.

[00:17:28] Speaker 03:
I mean,

[00:17:29] Speaker 03:
You're saying that's not a fact finding, but it feels like a fact finding or a presumption.

[00:17:34] Speaker 03:
I mean, should we presume something was mailed to the proper address when the file doesn't indicate that there's an address on file?

[00:17:42] Speaker 03:
I don't know how to parse this.

[00:17:44] Speaker 03:
I'm struggling.

[00:17:45] Speaker 00:
That's really a question of whether the presumption was rebutted.

[00:17:49] Speaker 00:
So 3.155 provides the presumption in that an application will be forwarded.

[00:17:56] Speaker 00:
the absence of the address on file could, as a factual matter, rebut the presumption.

[00:18:03] Speaker 00:
I'm not necessarily saying it always does.

[00:18:05] Speaker 00:
It's quite a fact-specific determination as to whether there is.

[00:18:11] Speaker 03:
You're saying it doesn't always?

[00:18:12] Speaker 03:
So let me get this straight.

[00:18:13] Speaker 03:
Under what set of circumstances would the presumption not be rebutted?

[00:18:17] Speaker 03:
I don't have your address.

[00:18:20] Speaker 03:
You say we should presume you mailed me something, or I mailed you something, but I don't have your address.

[00:18:26] Speaker 03:
Under what circumstances would that not rebut the presumption that I mailed it to you?

[00:18:30] Speaker 03:
I don't have your address.

[00:18:32] Speaker 03:
Like you're saying it doesn't always, like give me any circumstance where that presumption would not be rebutted.

[00:18:37] Speaker 03:
If I don't have your address, how can we possibly presume I mailed you something?

[00:18:41] Speaker 00:
Well, I don't have your address is a little different than I

[00:18:45] Speaker 00:
Your address is not apparent from what we see in the record here was in the claims file.

[00:18:50] Speaker 00:
So if it's flat out, they never had an address, never knew there was an address, nothing indicated anything, that would likely rebut the presumption.

[00:19:02] Speaker 00:
But here, there are other documents in the claims file.

[00:19:04] Speaker 00:
I can't say whether they were in the claims file at the time of the call.

[00:19:07] Speaker 00:
But for example, if you look at appendix page 186, there's a document that shows Mr. Harris's address, a document that predates the call with Mr. Deese.

[00:19:18] Speaker 00:
So we're not saying complete absence of address.

[00:19:21] Speaker 00:
I think in the opening brief, the argument was about a cover sheet specifically saying what address this document was sent to.

[00:19:31] Speaker 00:
So in the reply brief, it was a little bit not clear that they were relying on a cover sheet per se.

[00:19:38] Speaker 00:
But the complete absence of an address is different than maybe there was an address, maybe there wasn't an address.

[00:19:48] Speaker 03:
Okay.

[00:19:48] Speaker 03:
So you're saying this particular claims file did have other documents that preceded this mailing, which indicated the veteran's proper address?

[00:19:59] Speaker 03:
Yes.

[00:20:00] Speaker 03:
Indicated and address which is not being disputed as There's no dispute here right that not that I'm aware.

[00:20:08] Speaker 03:
Okay.

[00:20:09] Speaker 03:
All right, so indicate the proper address So you're saying to the extent that we want to credit the presumption of regularity that it was mailed to the proper address You're saying this is a claims file that did have an address in it and

[00:20:23] Speaker 03:
And we know that because there are earlier documents that had it.

[00:20:25] Speaker 03:
So this isn't the Veterans Court making fact findings that there's no address anywhere in that file.

[00:20:31] Speaker 03:
So we're just going to presume it went to the right address, even though there's no address.

[00:20:35] Speaker 03:
You're saying that this really is application of law to fact because there were facts.

[00:20:40] Speaker 03:
There were facts in the record upon which the Veterans Court could have made this decision.

[00:20:44] Speaker 00:
They could have.

[00:20:45] Speaker 00:
Again, I can only see that the document that I pointed to on page 186, it predates the call with Mr. Deese.

[00:20:52] Speaker 00:
Whether that was in front of Mr. Deese at the time, I can't say.

[00:20:58] Speaker 03:
Is that something that, I mean, should this be remanded to the board for fact findings about all this?

[00:21:03] Speaker 00:
Well, again, Your Honor, I think we disagree as to whether this involves a fact finding.

[00:21:08] Speaker 00:
It's our position that the presumption

[00:21:11] Speaker 00:
applies that it was sent to the proper address regardless of what was or was not in the file.

[00:21:18] Speaker 03:
How can we presume that something was sent to the proper address if there literally is no address in the file?

[00:21:24] Speaker 03:
How can we presume that?

[00:21:26] Speaker 03:
You're really losing me on this.

[00:21:29] Speaker 03:
If there was no address in the file, how do we presume something was sent to the right address?

[00:21:35] Speaker 00:
Because the presumption comes just from the legal requirement in 3.155A.

[00:21:41] Speaker 00:
What you're addressing is whether there's evidence or lack of evidence to rebut the presumption, meaning the lack of address on file goes to whether the presumption is correct.

[00:21:51] Speaker 03:
The presumption is one of regularity.

[00:21:53] Speaker 03:
The presumption is not one of necessarily mailing or not mailing.

[00:21:59] Speaker 03:
They have to establish.

[00:22:01] Speaker 03:
In order for the presumption to kick in, there have to be some baseline facts that are present, right?

[00:22:08] Speaker 03:
Like some don't there?

[00:22:11] Speaker 00:
Not necessarily, because as this court said in kind and the Veterans Court has said elsewhere, it's just the legal requirement that establishes the presumption.

[00:22:20] Speaker 00:
So the presumption comes from 3.155.

[00:22:24] Speaker 00:
Whether there's other facts has to do with whether the presumption is rebutted or not rebutted.

[00:22:29] Speaker 03:
Well, who gets to decide if the presumption is rebutted?

[00:22:34] Speaker 00:
The Veterans Court or the board initially.

[00:22:36] Speaker 00:
Did the board decide that question here?

[00:22:39] Speaker 00:
Not entirely.

[00:22:40] Speaker 00:
The Veterans Court, as you know, treated the board's decision as having applied the presumption of regularity, but the board didn't.

[00:22:50] Speaker 03:
I didn't see those words in the board decision, did you?

[00:22:52] Speaker 00:
That is what I'm saying, yes.

[00:22:54] Speaker 00:
So the board didn't

[00:22:57] Speaker 03:
apply the presumption and then... So if the board didn't apply the presumption and the board made none of the underlying fact findings that would allow the board to weigh whether that presumption was rebutted because they didn't apply the presumption, then how do we let the Veterans Court do that in the first instance?

[00:23:12] Speaker 03:
Because then it does... Because to me, this question of whether it's presented rebutted or not based on what the record reveals about whether there's an address in the record, that feels like a fact finding.

[00:23:23] Speaker 03:
And so I feel like, to some extent, the Veterans Court is making those fact findings in the first instance.

[00:23:29] Speaker 03:
And I don't see them reflected in the board decision.

[00:23:32] Speaker 03:
So I don't know what to do with that, because I do believe, just like we don't have the right to make fact findings, the Veterans Court does not have the right to make fact findings but for a harmless error.

[00:23:40] Speaker 00:
Right.

[00:23:41] Speaker 00:
I agree.

[00:23:41] Speaker 00:
The Veterans Court does, however, have the ability to determine whether the presumption was rebutted on de novo review.

[00:23:50] Speaker 00:
They do have that ability.

[00:23:52] Speaker 00:
So they cannot.

[00:23:53] Speaker 03:
What gives them, if that entails fact findings, what gives them that right?

[00:23:59] Speaker 03:
Because the statute clearly says they can't make fact findings.

[00:24:01] Speaker 00:
No, I agree.

[00:24:02] Speaker 00:
They cannot make fact findings.

[00:24:03] Speaker 00:
It would have to be based on the facts in the record.

[00:24:07] Speaker 03:
As already found, not facts in the record.

[00:24:10] Speaker 03:
They can't, because making a fact finding, I mean, there's the facts on the record, but there's a difference between facts in the record and making a fact finding.

[00:24:18] Speaker 03:
They'd have to be reviewing facts that were already found by the board in weighing whether the presumption of regularity applies, right?

[00:24:27] Speaker 03:
They'd have to say, oh, the board found there is an address in the record already.

[00:24:33] Speaker 03:
Therefore, the presumption of regularity is this form was mailed to that address.

[00:24:37] Speaker 03:
That's the presumption of regularity.

[00:24:39] Speaker 03:
But if the board didn't find there's an address in the record at all, how do we let the Veterans Court make that fact finding in the first instance?

[00:24:49] Speaker 00:
Again, it's not a fact finding.

[00:24:52] Speaker 00:
It's a presumption that the

[00:24:57] Speaker 00:
that the mailing happened based on 3.155.

[00:25:00] Speaker 01:
There is no presumption.

[00:25:02] Speaker 01:
You agree that the board's opinion doesn't say we're applying the presumption of regularity to find that it was mailed, not only mailed, but mailed to the proper address, right?

[00:25:15] Speaker 00:
Right.

[00:25:15] Speaker 00:
We agree that the board didn't say they were applying the presumption.

[00:25:19] Speaker 00:
They do mention the patient's representative note, Mr. Dease.

[00:25:25] Speaker 00:
as evidence that the form had been mailed.

[00:25:30] Speaker 00:
So they do make that fact-finding note.

[00:25:32] Speaker 03:
Where do they find that?

[00:25:33] Speaker 00:
That's on page 27.

[00:25:35] Speaker 03:
I'm on page 27.

[00:25:37] Speaker 03:
Tell me exactly where.

[00:25:39] Speaker 03:
Right.

[00:25:39] Speaker 00:
The paragraph that starts, although there is no indication that the RO provided an application for benefits, despite the VAMC patient representative noting that he provided the RO with the veteran's address.

[00:25:53] Speaker 00:
in a sense that they are making a finding about the veteran's address because they're saying that the patient representative noted that he provided the RO with the address.

[00:26:01] Speaker 00:
If there was no address in the record, how could the address have been provided?

[00:26:07] Speaker 00:
So they do make that fact-finding.

[00:26:10] Speaker 03:
Okay, I'm blanking.

[00:26:12] Speaker 03:
So there's no indication the RO provided an application for benefits despite the VMAC patient representative noting that he provided the RO with the veteran's address?

[00:26:26] Speaker 03:
Yes.

[00:26:28] Speaker 00:
That to me is a fact-finding that the address was provided to the RO.

[00:26:43] Speaker 00:
And then in addition, the board notes that the representative specifically wrote that he mailed the veteran in application.

[00:26:52] Speaker 00:
And that's what the Veterans Court as well picks up.

[00:26:55] Speaker 03:
Can I just ask, I'm sorry to interrupt you, but time is short.

[00:26:57] Speaker 03:
So it says he notes that he wrote, mailed the veteran in application, as well as the statement, support a claim.

[00:27:05] Speaker 03:
Is there a third document that there's a question about whether it was also mailed?

[00:27:10] Speaker 03:
Or is this everything?

[00:27:11] Speaker 03:
Do those two documents cover everything?

[00:27:14] Speaker 00:
There was a question that Mr. Harris raised about notice of the timeline required.

[00:27:20] Speaker 00:
So when an informal claim is filed and the formal application follows it, there's a certain time period, a year, within which you have to file the formal application.

[00:27:34] Speaker 00:
So he also raised the question of whether notice was included.

[00:27:38] Speaker 00:
The Veterans Court

[00:27:40] Speaker 00:
properly determine that the presumption also goes to determine that whatever should have been included with the mailing was included with the mailing.

[00:27:49] Speaker 03:
Got it.

[00:27:50] Speaker 03:
See that?

[00:27:51] Speaker 03:
I'm comfortable with that part of the presumption.

[00:27:52] Speaker 03:
All right.

[00:27:54] Speaker 03:
Okay.

[00:27:54] Speaker 03:
Anything further?

[00:27:55] Speaker 03:
That's it.

[00:27:55] Speaker 03:
Thank you.

[00:27:56] Speaker 03:
Okay.

[00:27:56] Speaker 03:
You have a little bit of rebuttal time.

[00:28:07] Speaker 02:
I want to just bring to the Court's attention a couple things about the Veterans Court's decision, and I hope I don't run out of time.

[00:28:17] Speaker 02:
Page five of the appendix.

[00:28:20] Speaker 02:
Just above the paragraph that was discussed, crediting this argument, if you look in the middle, it says, again, however, absent some indication to the contrary, the presumption of regularity includes the presumption that VA used the proper address.

[00:28:34] Speaker 02:
But again, there's no factual basis, no record basis for this.

[00:28:38] Speaker 03:
I think she destroyed you.

[00:28:39] Speaker 03:
She destroyed you with page 27.

[00:28:41] Speaker 03:
Where the board expressly found that the VAMAC patient representative noted he provided the RO with the veteran's address.

[00:28:50] Speaker 03:
So there you go.

[00:28:50] Speaker 03:
There's a fact finding by the board that they had, I mean, in fact, it's actually the veteran's own representative saying, hey, I gave that RO his address.

[00:29:02] Speaker 03:
So, I mean, even if that address isn't written in the file, which, by the way, it is on prior documents, I mean, you have that from the board.

[00:29:09] Speaker 03:
So how is the veteran court really making a fact binding in the first instance?

[00:29:13] Speaker 03:
They're not.

[00:29:14] Speaker 03:
They're just saying presumption applies that it was mailed as it would have been to the address that is the address on file, which

[00:29:22] Speaker 03:
seems like it was provided by the veteran's own representative.

[00:29:25] Speaker 02:
Right, John.

[00:29:26] Speaker 02:
And I'm looking in the Veterans Court's decision.

[00:29:28] Speaker 02:
I'm having trouble finding it.

[00:29:29] Speaker 02:
But I do recall that the Veterans Court addressed that specific statement and found that what they were really saying is,

[00:29:36] Speaker 02:
that the patient representative gave the veteran the RO's address, not that they gave the RO his address.

[00:29:44] Speaker 02:
And I believe it's on Appendix 3.

[00:29:46] Speaker 02:
But again, I'm having trouble finding it with the shortened time that I have here.

[00:29:51] Speaker 02:
But the Veterans Court did address that and found that it was the other way around, that they were giving the RO's address to the veteran.

[00:30:02] Speaker 02:
And if you look at what the

[00:30:06] Speaker 02:
On page 156, I think it is.

[00:30:11] Speaker 02:
what the patient representative actually wrote, it's pretty clear that the Veterans Court is correct.

[00:30:18] Speaker 02:
But regardless, again, those are factual things that the Veterans Court looked at and said that, no, that's not correct.

[00:30:24] Speaker 03:
You know what?

[00:30:24] Speaker 03:
I've got to stop you.

[00:30:26] Speaker 03:
It doesn't matter if page 156 says what you say it says.

[00:30:29] Speaker 03:
I have no authority to review fact findings.

[00:30:31] Speaker 02:
I understand that.

[00:30:32] Speaker 03:
I have a board fact finding on page 27.

[00:30:34] Speaker 02:
Right, but the Veterans Court addressed that fact finding and found that it was wrong.

[00:30:38] Speaker 02:
that the RO was actually, I'm sorry, the patron representative was given the RO's address to the veteran.

[00:30:44] Speaker 02:
And again, I'm having trouble finding exactly where that is given my limited time, but I did have some other points to make, but I'm happy to find that for you if you... Well, I mean, you're out of time, so I'll give you one minute to go even further than you already have to tell us whatever your other points are.

[00:31:00] Speaker 02:
Okay.

[00:31:00] Speaker 02:
Well, Your Honor, page 186 of the appendix, these were service records, clearly not a current address.

[00:31:07] Speaker 02:
The veteran had already left service.

[00:31:08] Speaker 02:
And so that is not anything to rely on.

[00:31:11] Speaker 02:
And I would just emphasize that the point that you were making, Your Honor, that without some address in the record, there's just no basis for establishing this.

[00:31:25] Speaker 02:
But even beyond that, even if there is an address,

[00:31:27] Speaker 02:
There's no basis for showing that the time limit to respond was included in that because, again, there's no evidence.

[00:31:35] Speaker 02:
The board didn't make that finding.

[00:31:37] Speaker 02:
The Veterans Court simply inferred that it would have been included without any basis for that.

[00:31:43] Speaker 02:
And until the notification with the time limit is included, the time to respond does not begin, and that's under 38 CFR 3.110.

[00:31:55] Speaker 03:
Okay, I thank all counsel this case is taken under submission.