[00:00:03] Speaker 00:
And good morning, everyone.

[00:00:05] Speaker 00:
The first argued case this morning is number 17, 2387 Lawson against Wilkie.

[00:00:13] Speaker 00:
Mr. Attick.

[00:00:23] Speaker 03:
May it please the court.

[00:00:25] Speaker 03:
Mr. Lawson requests that the court set aside the entire judgment of the Veterans Court and demand the appeal.

[00:00:31] Speaker 00:
Mr. Attick, the law has changed.

[00:00:33] Speaker 00:
There are new rules and new regulations.

[00:00:36] Speaker 00:
Bring us up to date on what's happened.

[00:00:39] Speaker 03:
In this particular case, Your Honor, since?

[00:00:42] Speaker 00:
Well, because as I observed the new rules, the VA said that the claim should be refiled and that it was straightforward.

[00:00:53] Speaker 00:
Has that happened?

[00:00:55] Speaker 03:
I'm not aware of a claim has been refiled.

[00:00:57] Speaker 00:
I don't know that there is a need for Mr. Lawson to- Does that mean it hasn't been refiled?

[00:01:02] Speaker 03:
I don't know that it has or has not been refiled as a supplemental claim at the agency level.

[00:01:06] Speaker 00:
Doesn't that make an enormous difference if it's automatic?

[00:01:12] Speaker 00:
It appears

[00:01:14] Speaker 00:
at least whatever the guidelines are, as if it might automatically be granted if refiled and yet you're asking us to decide the merits?

[00:01:25] Speaker 03:
I don't know that it would be automatically decided because currently the Secretary has put a stay.

[00:01:30] Speaker 00:
We don't know if it hasn't been attempted and didn't those guidelines come out a while ago?

[00:01:36] Speaker 00:
I don't know the date.

[00:01:37] Speaker 00:
I'll ask the VA.

[00:01:38] Speaker 03:
My understanding, Your Honor, is that the stay is still in place.

[00:01:42] Speaker 03:
and that the board and the agency are not deciding Blue Water Navy cases as a result of the Procopio decision until they've developed the guidelines and released them.

[00:01:50] Speaker 03:
I'm not aware of any cases that have been recently decided beyond the Veterans Court remanding cases to the board to address that issue, as should have happened had that been the law at the time of this case when it was at the Corps.

[00:02:03] Speaker 00:
If he doesn't meet the definition of Blue Water,

[00:02:08] Speaker 00:
And from your briefs, it looked as if it was clear that it was in the territorial waters.

[00:02:17] Speaker 00:
Then you're asking, it seems to me the question is what happens in this period between the act of Congress and the effective date set by Congress.

[00:02:27] Speaker 00:
And that's an issue that needs to be or might need to be resolved if there are no regulations.

[00:02:35] Speaker 03:
I'm not sure.

[00:02:36] Speaker 03:
Respectfully, Your Honor, I'm not sure I understand your point.

[00:02:39] Speaker 03:
I apologize.

[00:02:40] Speaker 03:
I'm not following.

[00:02:42] Speaker 00:
All right.

[00:02:42] Speaker 00:
Tell us what you think you need to tell us.

[00:02:46] Speaker 03:
Well, I think, Your Honor, that the court must remand the current issue.

[00:02:49] Speaker 03:
If this was the law of the case at the time of the Veterans Court decision, it certainly would have remanded.

[00:02:54] Speaker 03:
And certainly, because there's been a change in law and because that old decision in the board in 2015

[00:03:01] Speaker 03:
relied on the old law.

[00:03:03] Speaker 03:
And third, because the facts of this case compel a different decision or a different outcome under the new law in Procopio, a remand is appropriate for the board to address that issue.

[00:03:15] Speaker 04:
As facts go, your client was a carrier sailor on a vessel that was in the territorial waters.

[00:03:24] Speaker 04:
That's uncontested, isn't it?

[00:03:25] Speaker 03:
To my understanding, it is not reasonably disputed that he was in the territorial waters of the Republic of Vietnam, either on the Hancock or the Banh Ami-Rachar.

[00:03:32] Speaker 03:
And I don't know if there's any reasonable dispute.

[00:03:35] Speaker 03:
Even if there was a reasonable dispute on remand, Mr. Lawson's first action at the board would be to request the very records that he's complaining of not receiving here so that he could establish the presence in the territorial waters.

[00:03:48] Speaker 03:
So that remand would moot the issues currently before this court.

[00:03:53] Speaker 03:
And the court would be able to decide

[00:03:55] Speaker 03:
or postpone the decision on that issue should it survive on remand.

[00:03:59] Speaker 03:
The law of the case doctrine certainly, as this court found in Dow Chemical v. Nova, the court has never applied the law of the case doctrine in a case where there's been a substantive change in the law.

[00:04:12] Speaker 03:
And so the only action the court can take at this point is to remand.

[00:04:16] Speaker 03:
I don't know that this case is affected by the legislation because it was directly affected by Procopio.

[00:04:21] Speaker 03:
I'm not sure whether or not it is affected by the legislation.

[00:04:25] Speaker 03:
because it's clearly affected by the decision in Procopio.

[00:04:28] Speaker 01:
Well, both you and the party's sort of supplemental submission that we received, you suggest a remand.

[00:04:36] Speaker 01:
And I think the government also suggests a remand as one of the possible options.

[00:04:44] Speaker 03:
Yes, Your Honor.

[00:04:44] Speaker 03:
We believe a remand is appropriate.

[00:04:46] Speaker 03:
And we believe the government, I'm not sure they clearly took a position in support of remand.

[00:04:51] Speaker 03:
Because we weren't able to agree on remand, but I believe that it's not legitimately or reasonably disputed that there's a basis for a remand here at this point.

[00:05:01] Speaker 03:
Your honor, I would like to point out that in terms of the Joint Status Report, the government has argued that there's some dispute over the diagnosis of diabetes type 2.

[00:05:11] Speaker 03:
And I just want to point out that there's no medical requirement.

[00:05:14] Speaker 03:
In fact, you can be diagnosed with both diabetes type 1 and type 2 at the same time.

[00:05:19] Speaker 03:
really is a red herring in this case.

[00:05:21] Speaker 01:
As I understand it, if the case is remanded, I guess the possibly, and we'd have to hear from the government, possibly the three issues were, number one, territorial waters were the ships in that area, and that could probably pretty easily be determined.

[00:05:38] Speaker 01:
And then the question of diabetes type two or type one, and then the question of the heart condition.

[00:05:45] Speaker 01:
Those seem to be the three door opening issues to get you into the presumption.

[00:05:50] Speaker 03:
Is that correct?

[00:05:51] Speaker 03:
Those would be the elements of the presumption.

[00:05:54] Speaker 03:
And I don't believe, I believe the board found, as a matter of fact, that in 2003, there's records in 2000 showing the diagnosis of type 2.

[00:06:03] Speaker 03:
There's also records showing a type 1 diabetes, but they're not mutually exclusive diagnoses.

[00:06:08] Speaker 03:
You can have both conditions.

[00:06:10] Speaker 00:
Well, a lot of time has passed.

[00:06:12] Speaker 00:
That diagnosis of type 2 diabetes has had no further attention since the initial raising it.

[00:06:21] Speaker 00:
And apparently the VA is saying, I don't know what they said, that they did or didn't accept the evidence at that point.

[00:06:29] Speaker 00:
There's been no further submission as to what kind of diabetes it is.

[00:06:36] Speaker 03:
We believe it's resolved in the record that he has type 2 and type 1 diabetes, Your Honor.

[00:06:39] Speaker 03:
And so I don't know that we would need to address that any further.

[00:06:43] Speaker 03:
Furthermore, the board has already decided that issue.

[00:06:46] Speaker 03:
And to go back behind a favorable finding of fact, I don't know that there's any basis in the law to allow the government to do that at the board.

[00:06:54] Speaker 03:
Third, because there was a diagnosis of type 2 diabetes within the time of the claim, then that is sufficient to establish the elements for service connection.

[00:07:03] Speaker 03:
What happens to that?

[00:07:04] Speaker 03:
If for some reason type 2 diabetes later went into remission, the board, I'm sorry, the VA could address that in terms of its rating or in a later reduction of rating should that be necessary.

[00:07:14] Speaker 04:
But in terms of service.

[00:07:16] Speaker 04:
Appendix 107, they say type 2.

[00:07:19] Speaker 03:
Yes, Your Honor.

[00:07:20] Speaker 03:
The board says it.

[00:07:21] Speaker 03:
Mr. Lawson testified to it that he had that diagnosis.

[00:07:25] Speaker 03:
I don't think there's any reasonable dispute that he had anything but a diagnosis of type 2 and type 1 diabetes.

[00:07:32] Speaker 03:
The government has also argued that Mr. Lawson has never raised a claim for presumption of Agent Orange exposure.

[00:07:38] Speaker 03:
And I would like to point out that's incorrect.

[00:07:41] Speaker 03:
At appendix 113.

[00:07:42] Speaker 03:
That's in his appeal.

[00:07:44] Speaker 03:
In his original 2009, well, in an original claim tree.

[00:07:47] Speaker 04:
Yeah, 2010.

[00:07:52] Speaker 04:
Appendix 104.

[00:07:59] Speaker 04:
He hinted, why do you think the VA decided

[00:08:02] Speaker 04:
case incorrectly, and he hand wrote all that.

[00:08:05] Speaker 03:
Yes, and even before that, Your Honor, in Appendix 113, he asked if there was not sufficient information to grant him the presumption, he asked for a comp and pen exam to address the claim of direct.

[00:08:18] Speaker 03:
So that issue is there.

[00:08:19] Speaker 03:
And even if it wasn't there, the board considered it reasonably raised because they addressed it in the decision.

[00:08:24] Speaker 03:
So Mr. Lawson meets all the bases for the exception to the law of the case doctrine.

[00:08:29] Speaker 03:
And Mr. Lawson asked the court to exercise its discretion considering two factors.

[00:08:35] Speaker 03:
And the first factor is factors involving the parties.

[00:08:38] Speaker 03:
The government has produced no reason, no less a compelling reason, why an immediate decision on the constitutional issue before the court on the question of direct exposure requires an immediate decision of the court.

[00:08:50] Speaker 03:
And put on the other side of that, the equities involving Mr. Lawson, he's a 72-year-old

[00:08:54] Speaker 03:
a Vietnam veteran who's been fighting since before Haas was issued.

[00:08:58] Speaker 03:
A year before Haas was issued was when he filed his first claim and he's continuously pursued it through the entire 12-year period.

[00:09:05] Speaker 03:
Now that he has an opportunity in light of Procopio to resolve that issue of presumptive service connection, there's no basis in the equities and in terms of equity, Mr. Lawson asked the court to exercise its discretion to remand.

[00:09:18] Speaker 00:
I agree in light of Procopio, but I'm still concerned after the act of Congress.

[00:09:24] Speaker 00:
and the guidelines issued by the VA, which says all you have to do if you're on this list is refile your claim.

[00:09:33] Speaker 00:
And you say that hasn't happened.

[00:09:37] Speaker 03:
I'm not aware if Mr. Lawson has filed his claim or has not filed his claim.

[00:09:41] Speaker 03:
We've reached out to find out.

[00:09:42] Speaker 00:
Is this something that you ordinarily would have been aware of in your relationship as counsel, or was this an independent action?

[00:09:50] Speaker 03:
I've reached out to Mr. Lawson to find out, and I have not yet heard back.

[00:09:54] Speaker 03:
And I don't know the reason that I have not yet heard back.

[00:09:56] Speaker 03:
I typically do.

[00:09:58] Speaker 03:
But I don't know that his claim would even be adjudicated if he did file a supplemental claim at this point, because the stay is still in place.

[00:10:05] Speaker 03:
At this time, I believe there was testimony before Congress just in the last three weeks about whether or not that stay should or should not stay in place.

[00:10:12] Speaker 03:
I don't know how this is all turning out.

[00:10:13] Speaker 03:
I did not see the issue in the legislation affecting Mr. Lawson's

[00:10:20] Speaker 03:
because I saw more direct impact of Procopio requiring a remand, as it would have had he been at the court.

[00:10:26] Speaker 00:
Do you know what looked to me as what the VA was providing was a straightforward administrative procedure that would cut through all of this noise?

[00:10:36] Speaker 03:
I'm not aware that that's happening and that was never, to my knowledge, offered to us by the government.

[00:10:40] Speaker 03:
Well, the government will be able to tell us.

[00:10:43] Speaker 00:
All right, we'll find out.

[00:10:45] Speaker 03:
Preserve the remaining time for rebuttal.

[00:10:46] Speaker 00:
Thank you.

[00:10:56] Speaker 02:
This is Rose.

[00:10:58] Speaker 02:
Good morning, Your Honors.

[00:10:59] Speaker 02:
May I please the court?

[00:11:00] Speaker 04:
Is there a procedure in place at the VA now?

[00:11:03] Speaker 02:
A procedure in place?

[00:11:03] Speaker 02:
Well, that has a couple of components.

[00:11:07] Speaker 02:
There is a stay for newly filed or newly claims to reopen old claims that is in effect through January, at the beginning of January.

[00:11:18] Speaker 02:
But for cases that are remanded, they are currently being processed.

[00:11:25] Speaker 02:
Here we have

[00:11:26] Speaker 02:
two components.

[00:11:27] Speaker 04:
So what you're saying is we should remand it then?

[00:11:31] Speaker 02:
The government's position is that the presumptive theory should be remanded.

[00:11:35] Speaker 02:
However, the direct theory of service connection for Agent Orange exposure has been fully briefed and the efficiencies would tend towards it being appropriate for the court now to affirm that piece of the opinion on the presumptive theory but to remand for consideration of

[00:11:57] Speaker 02:
excuse me, to affirm on the direct theory, but to remand on the presumptive theory of service connection.

[00:12:05] Speaker 02:
And the reason that we think that that's appropriate is because there is a large number of these cases that are going to be influxed.

[00:12:12] Speaker 02:
The VA is very overtaxed with this.

[00:12:15] Speaker 02:
Everything about the direct theory has been briefed.

[00:12:18] Speaker 02:
The arguments have been made.

[00:12:20] Speaker 02:
It's fully briefed before the court.

[00:12:21] Speaker 02:
And rather than having

[00:12:24] Speaker 02:
Go back to the VA, reconsidered by the board, reconsidered by the Veterans Court if needs be.

[00:12:29] Speaker 02:
We think it would be appropriate to affirm on the direct theory, but remand on the presumptive theory of service connection.

[00:12:36] Speaker 04:
What's the difference in his case?

[00:12:38] Speaker 04:
What's the difference?

[00:12:39] Speaker 02:
The difference is that he may or may not meet the requirements for presumptive service connection.

[00:12:48] Speaker 04:
Does the government contest that he was on board the Hancock and the Bonhomme?

[00:12:52] Speaker 02:
We do not contest that he was on board the Hancock and the Bonhomme.

[00:12:58] Speaker 02:
But there is still an unresolved question as to whether or not those ships were in

[00:13:06] Speaker 02:
in the territorial waters as defined by Procopio or more specifically in the offshore waters as defined by the... You're saying that's unknown, whether the ships were in the territorial waters?

[00:13:17] Speaker 00:
Surely that's known, surely that's within the military records.

[00:13:21] Speaker 00:
It is within the military... Records as to whether they were or weren't.

[00:13:25] Speaker 00:
And I didn't see anywhere the VA saying no, they were not within the territorial waters during his shore duty.

[00:13:33] Speaker 02:
Well, first of all, remember that everything that was adjudicated below was before Procopio and the Blue Water Navy Act.

[00:13:39] Speaker 02:
So that wouldn't have been something that the VA wouldn't have addressed.

[00:13:42] Speaker 04:
So what was the vessel that Procopio served on?

[00:13:43] Speaker 02:
What vessel?

[00:13:44] Speaker 02:
I don't know what vessel Mr. Procopio served on.

[00:13:47] Speaker 00:
It's in the record.

[00:13:48] Speaker 00:
He stated the vessel.

[00:13:49] Speaker 02:
Are we talking about Mr. Lawson?

[00:13:52] Speaker 00:
No, Procopio.

[00:13:53] Speaker 00:
I'm sorry, Procopio.

[00:13:54] Speaker 02:
I don't know.

[00:13:55] Speaker 02:
But I do know that Mr. Lawson is claiming that his service on the USS Hancock, he was at Yankee Station in the Gulf of Tonkin.

[00:14:01] Speaker 02:
However, the Gulf of Tonkin

[00:14:02] Speaker 02:
is hundreds of miles wide.

[00:14:03] Speaker 02:
Yankee Station isn't within the waters as defined either under Procopio or under the Blue Water Navy Act, which would be the Controlling Act.

[00:14:12] Speaker 02:
So that's something that the process, the ship logs of the USS Hancock are currently being scanned, along with a massive effort to scan all of these ship logs.

[00:14:24] Speaker 02:
But we do know that the Hancock's records specifically were midway through being scanned.

[00:14:31] Speaker 02:
What I can tell you is that,

[00:14:32] Speaker 02:
Some ships who went to Yankee Station went down into Da Nang Harbor, which would be within the offshore waters as defined by the Blue Water Navy Act.

[00:14:43] Speaker 02:
But not all ships did.

[00:14:45] Speaker 02:
And so there's a question that needs to be resolved, a question of fact that should go back to the VA, as to whether or not he was in the waters.

[00:14:52] Speaker 02:
And if he was, certainly that's not a question of Da Nang Harbor.

[00:14:55] Speaker 04:
It's a question of the 12-mile limit.

[00:14:57] Speaker 02:
Right, but that is the question.

[00:14:59] Speaker 02:
That is the open question.

[00:15:01] Speaker 02:
And it's not in the record.

[00:15:02] Speaker 02:
And it's something that the VA should decide in the first place.

[00:15:04] Speaker 02:
Why isn't it an open question?

[00:15:04] Speaker 00:
The government has no knowledge of whether its carriers were or were not in territorial waters?

[00:15:11] Speaker 02:
Your Honor, the government does have knowledge.

[00:15:13] Speaker 02:
But remember, when we're looking at Mr. Lawson's record, none of these questions of Procopio and the Blue Water Navy Act had yet come up.

[00:15:21] Speaker 02:
This record was decided before the court's decision in Procopio and before the

[00:15:27] Speaker 02:
before Congress enacted the Blue Water Navy Act.

[00:15:29] Speaker 01:
So you're saying, Ms.

[00:15:30] Speaker 01:
Rosa, the questions that we're raising now were not relevant in the litigation below.

[00:15:35] Speaker 01:
But let me ask you, you said when you got up that we should affirm on the direct case before us and remand on the presumption question, the whole that's been opened up by Procopio, correct?

[00:15:47] Speaker 01:
Yes.

[00:15:48] Speaker 01:
But my understanding was in the briefs, you're saying that we should dismiss the direct case for lack of jurisdiction because

[00:15:56] Speaker 01:
The question there was whether there was compliance with the duty to assist.

[00:16:08] Speaker 01:
Veterans Court said there was.

[00:16:12] Speaker 01:
My view is that whether or not there was a compliance with that duty is an application of law to fact that we don't have jurisdiction.

[00:16:19] Speaker 01:
So what if the situation is that we don't have jurisdiction over the direct case?

[00:16:25] Speaker 01:
Wouldn't it be better just to flat out remand?

[00:16:30] Speaker 02:
To the extent that Mr. Lawson can establish both that he was within the offshore waters as defined by

[00:16:38] Speaker 02:
Congress and that he has type 2 diabetes.

[00:16:42] Speaker 02:
Or a heart condition.

[00:16:43] Speaker 02:
Yes.

[00:16:44] Speaker 02:
His effective date would be the same, because he's already submitted that claim and that provision was made.

[00:16:50] Speaker 02:
However, I will acknowledge, first of all, we haven't waived our jurisdictional argument.

[00:16:56] Speaker 02:
For Mr. Lawson, it would be most likely more expedient if it was remanded.

[00:17:04] Speaker 02:
And it would be to his benefit.

[00:17:08] Speaker 02:
Yes.

[00:17:08] Speaker 02:
If the case is remanded, he gets the benefit of expedited processing under the remand rules.

[00:17:14] Speaker 01:
But also, he would not be affected by the state.

[00:17:17] Speaker 01:
The direct issue might just go away.

[00:17:19] Speaker 02:
It may.

[00:17:20] Speaker 02:
However, we do know, like I said, not every ship that went to Yankee Station would be considered within the offshore waters.

[00:17:27] Speaker 02:
So it may or may not.

[00:17:29] Speaker 02:
Certainly if he was able to establish, if he is able to establish presumptive service connection,

[00:17:34] Speaker 02:
the direct service connection theory would be mooted.

[00:17:37] Speaker 01:
But you're saying the quickest way to get to what I'll call this Procopio issue would just be a flat remand.

[00:17:44] Speaker 02:
for Mr. Lawson.

[00:17:46] Speaker 01:
And there are cases.

[00:17:48] Speaker 01:
I don't think they're precedential cases, but there are non-precedential cases of ours where we have just remanded without a reversal or a vacate.

[00:18:00] Speaker 01:
We've just said remand.

[00:18:03] Speaker 01:
And I think it's also contemplated in our operating procedures that it could be done.

[00:18:09] Speaker 04:
Frankly, I think the only really interesting question, factual question,

[00:18:14] Speaker 04:
is what happens when carriers engaged in operations against what was then North Vietnam enter into North Vietnamese waters, which are now, of course, DPRK territorial waters all up and down the coast.

[00:18:30] Speaker 04:
And what are the implications for Agent Orange contamination of the North Vietnamese waters as opposed to the South Vietnamese waters?

[00:18:39] Speaker 04:
Because at the time, they were two different

[00:18:43] Speaker 02:
Well, the Blue Water Navy Act that was enacted by Congress in June has specific coordinates that will govern whether or not a specific service member is able to take advantage of the presumptive service connection.

[00:19:01] Speaker 02:
Again, the VA is undertaking a massive effort of scanning all of those ship's logs and plotting out the paths of those ships.

[00:19:11] Speaker 02:
And so again, while we don't know

[00:19:12] Speaker 02:
standing here on this record, whether or not the Hancock or the other ships that Mr. Lawson served on were within those boundaries, that will be known soon.

[00:19:22] Speaker 02:
And to the extent that there's other questions about what happens with other waters, that's a matter for Congress and not the sport.

[00:19:31] Speaker 04:
I misspoke.

[00:19:31] Speaker 04:
Ms.

[00:19:31] Speaker 04:
Ross, what if you could just... I misspoke.

[00:19:36] Speaker 04:
I said the

[00:19:40] Speaker 04:
Oh, I followed.

[00:19:45] Speaker 01:
Good correction.

[00:19:47] Speaker 01:
What is the situation exactly?

[00:19:50] Speaker 01:
Mr. Haggs referred to the stay in effect.

[00:19:53] Speaker 01:
If you could just tell me a little bit about what this stay is that's pending.

[00:19:59] Speaker 02:
The Blue Water and Navy Act says that the Secretary may stay pending cases until January.

[00:20:08] Speaker 02:
The Secretary did that.

[00:20:10] Speaker 02:
However,

[00:20:11] Speaker 02:
That wouldn't be at issue in a remand here, because cases that are remanded from this court are not part of that state.

[00:20:21] Speaker 01:
So the pending, the stay applies to pending cases, and pending cases is defined to exclude a case such as Mr. Lawson's?

[00:20:30] Speaker 02:
Correct.

[00:20:31] Speaker 02:
So it would apply to a case that's before an RO.

[00:20:34] Speaker 02:
a claim before an RO, but it would not apply to Mr. Lawson's claim.

[00:20:40] Speaker 00:
So in that case there really is a question of duty to assist, and I still cannot understand how the duty of assist could have been met if the government refuses to say or confirm that these three tours of duty were or were not in territorial waters.

[00:21:01] Speaker 04:
It's easy enough to establish.

[00:21:02] Speaker 02:
Procopio did it with logs.

[00:21:22] Speaker 02:
that will be deciding these cases with as much speed and efficiency as possible.

[00:21:28] Speaker 01:
Are there many people in Mr. Lawson's situation who aren't in the pending category but are in the category of cases previously decided that are now in litigation or before us, sir?

[00:21:42] Speaker 02:
I don't know the exact numbers, but we can surmise that that would be a small number compared to the very large number of cases that will be

[00:21:52] Speaker 02:
new claims seeking to file at the RO level, seeking to reopen old decisions.

[00:22:02] Speaker 02:
If the court has nothing further,

[00:22:07] Speaker 00:
recognize that the jurisdictional piece may make it difficult to... So this case has been pending for four years in the courts and how many more years is it going to take for an answer to these simple questions now presented with the statute enacted?

[00:22:25] Speaker 02:
I don't know the timing.

[00:22:27] Speaker 02:
I do know that the VA is working very hard to meet the flood of claims that is before it, and it's not trying to slow anything down.

[00:22:37] Speaker 02:
It's just inundated with a lot of claims.

[00:22:39] Speaker 04:
Well, I mean, agency discretion in one sense, but on the other hand, your obligation to the general field of blue water sailors out there

[00:22:54] Speaker 04:
whose records are available.

[00:22:58] Speaker 04:
I understand you want to just chart them all out and then plug it into a computer and be able to determine on the spot.

[00:23:05] Speaker 04:
But nevertheless, you can still pull up those logs for the dates he served.

[00:23:09] Speaker 04:
And his discharge papers will show that, I believe, and then plot out the law.

[00:23:19] Speaker 02:
Yes.

[00:23:19] Speaker 02:
And those ship records are, as of yesterday,

[00:23:24] Speaker 02:
they had been, I think, at least 50% scanned.

[00:23:27] Speaker 02:
So that's a process that is not just underway, but that may have been finished.

[00:23:33] Speaker 04:
There is one alternative.

[00:23:34] Speaker 04:
We might provide them to Council, too.

[00:23:36] Speaker 04:
If the VA is not willing to do it immediately, I imagine Council could sit down, look at those things, and see very quickly if they were within territorial waters.

[00:23:46] Speaker 04:
They show that.

[00:23:47] Speaker 02:
If the case is remanded, that's a request that he could make.

[00:23:51] Speaker 02:
Thank you, Your Honor.

[00:23:54] Speaker 00:
Thank you, Mr. Rice.

[00:23:56] Speaker 00:
Mr. Haddock.

[00:24:00] Speaker 03:
Mr. Lawson's first act on remand to the board should the court decide to remand would be A, to request the records from the VA, and then also to submit Freedom of Information Act requests to the National Archives and to the Department of the Navy to establish that.

[00:24:12] Speaker 03:
By doing so, he would moot the direct service connection issue on appeal at this court, because he would receive the very records he complains of not receiving in this appeal.

[00:24:21] Speaker 03:
So even if there's a grant, even whatever happens with the court remanding, that issue will go away in one way or another.

[00:24:27] Speaker 04:
It seems like the government was saying that they have them, and they've scanned them already, and now they're trying to work the data.

[00:24:35] Speaker 04:
But if indeed that's true, and they're scanned, it should be easy enough for you to get that stuff.

[00:24:40] Speaker 03:
I looked on National Archives.

[00:24:41] Speaker 03:
I know this is anecdotal, Your Honor, but I looked on the National Archives last night.

[00:24:45] Speaker 03:
And the years that Mr. Larson was served, lost and served, were not in the electronic publicly available yet.

[00:24:51] Speaker 03:
So we would still, as of now, need to make that request.

[00:24:55] Speaker 03:
The other concern I would have that I would just point out is while I think that remand is the fastest relief for my client, because it allows us to get access to those records individually, I don't know.

[00:25:05] Speaker 03:
I know Mr. Procopio comes before this court next Friday again.

[00:25:09] Speaker 03:
challenging the stay that is being applied too broadly to remanded cases and to new claims.

[00:25:13] Speaker 03:
So I think there's some confusion from both sides of the bar as to the scope of that stay.

[00:25:19] Speaker 03:
And certainly a remand would be the quickest way because it would allow myself or his attorney on remand to resolve the issue and move the issue frankly before the court at this time.

[00:25:27] Speaker 03:
We ask that the court set aside the judgment of the Veterans Court or simply just remand the issue to the board to re-adjudicate the matter in light of the court's decision in Procopio.

[00:25:38] Speaker 00:
Thank you.

[00:25:40] Speaker 00:
Thank you both.

[00:25:41] Speaker 00:
The case is under submission.