[00:00:41] Speaker 02:
So the next argued case is number 19, 2184, Procopio against the Secretary of Veterans Affairs.

[00:00:50] Speaker 02:
Mr. Wells, you're ready.

[00:00:53] Speaker 00:
Good morning, Judge Newman, Judge Moore, and Judge Chen.

[00:00:56] Speaker 00:
It's always good to appear before you.

[00:00:59] Speaker 00:
If I may please the court, in January of this year, beginning of this year, this court gave Al Procopio a pathway to benefits by finding that he served within the Republic of Vietnam.

[00:01:11] Speaker 00:
At the end of this year, as we near the end of the year, he is still not getting those benefits.

[00:01:16] Speaker 00:
The only intervening factor was an act of Congress which took effect on July, excuse me, June 25th of this year.

[00:01:24] Speaker 00:
What Congress did was give a separate and distinct pathway so that now we were dealing with two pathways.

[00:01:31] Speaker 00:
The Secretary chose to use the second pathway as a means of limiting or rather eliminating that first pathway.

[00:01:40] Speaker 00:
And we think that that was not correct.

[00:01:42] Speaker 00:
First of all, the key word that's used in the first section 1116A is that they were adding a section.

[00:01:51] Speaker 00:
They did not amend.

[00:01:52] Speaker 00:
They did not repeal.

[00:01:54] Speaker 00:
They did not modify section 1116.

[00:01:57] Speaker 00:
They added a section, a separate and distinct pathway.

[00:02:00] Speaker 00:
But in doing so, the secretary's interpretation was that we were going to go ahead, or he was going to go ahead and cut off that first pathway.

[00:02:09] Speaker 00:
There are minor differences between the areas in the first pathway, the territorial sea, second pathway, term offshore.

[00:02:18] Speaker 04:
And actually, can we first turn to whether we have the authority to review this at this stage?

[00:02:24] Speaker 00:
Your Honor.

[00:02:25] Speaker 04:
I guess on one hand, the argument from the government is that by imposing a stay, a temporary stay, this is just a pause on administering all these claims.

[00:02:37] Speaker 04:
There's going to be a lot of claims.

[00:02:39] Speaker 04:
And so the agency is trying to get its administrative ducks in a row, and then it's going to move forward.

[00:02:47] Speaker 04:
But in the end, there's nothing final per se in the sense that

[00:02:52] Speaker 04:
No burdens have been imposed.

[00:02:54] Speaker 04:
No rights have been adjudicated.

[00:02:56] Speaker 04:
And so this is therefore not something that could be regarded as a final agency action.

[00:03:03] Speaker 04:
Could you respond to that?

[00:03:04] Speaker 00:
Certainly.

[00:03:04] Speaker 00:
I'm glad you brought that up, Your Honor.

[00:03:06] Speaker 00:
It certainly is final.

[00:03:08] Speaker 00:
We've had at least a dozen people that we know of that have passed away during the pendency of the state.

[00:03:14] Speaker 00:
It's certainly final to them.

[00:03:16] Speaker 00:
But if you look at other actions,

[00:03:22] Speaker 00:
closed one of the pathways.

[00:03:24] Speaker 00:
It closed the pathway by Procopio.

[00:03:27] Speaker 00:
Now, one of those factors deals with airspace.

[00:03:29] Speaker 00:
And Judge Chenet's oral argument, first oral argument, I think you raised that issue, is would Procopio apply to airspace?

[00:03:36] Speaker 00:
And the answer, I think, we gave you at the time.

[00:03:38] Speaker 00:
And the correct answer is yes, it would.

[00:03:40] Speaker 00:
In the legislative history of 1116A, it eliminates the airspace for anyone that flew over the territorial sea.

[00:03:50] Speaker 00:
So we have that type of final agent action.

[00:03:53] Speaker 00:
It closed off the pathway.

[00:03:54] Speaker 00:
Questions are, was this a final agency action?

[00:03:58] Speaker 00:
I think it was.

[00:03:59] Speaker 01:
You've got to have... When you say it closed off the pathway, you're talking about 1116A did that, but you're not appealing 1116A.

[00:04:07] Speaker 01:
That's correct.

[00:04:08] Speaker 01:
You're appealing a stay.

[00:04:11] Speaker 00:
That's right.

[00:04:11] Speaker 01:
So whether this closed off the path to airway veterans receiving benefits isn't at all what you're appealing, and nor is that interpretation at all relevant to the stay.

[00:04:23] Speaker 00:
And actually, Your Honor, I think we're tied up on the word stay.

[00:04:25] Speaker 00:
We're appealing the policy.

[00:04:28] Speaker 00:
And the policy of that, as came out in the Secretary's 1 July memo, just happens to cut off any pathway under 1116.

[00:04:37] Speaker 00:
And I think that is the most important thing.

[00:04:41] Speaker 00:
The court and Congress, working separately, gave us two pathways.

[00:04:47] Speaker 00:
One has been turned off.

[00:04:48] Speaker 01:
I'm looking at the Secretary's memo.

[00:04:49] Speaker 01:
It's on Appendix Page 1.

[00:04:52] Speaker 01:
Where does it cut off the pathway through 1116?

[00:04:57] Speaker 00:
Very interesting because it doesn't actually address one one six one one one six and perhaps it should but what it does How do you know it cuts off claims that would be allowed to be?

[00:05:09] Speaker 00:
to warrant benefits under one one one six Because it has put a halt on any claim brought under one one one six we have the one one one six claims were fairly easy under any definition of

[00:05:26] Speaker 00:
the territorial sea and I met with the secretary in April the documents that we presented are here in the appendix and basically 85 approximately 85 percent of all the ships that have been completed without working on the state because everybody agrees that the ships that were in the harbors or within 12 nautical miles of land okay

[00:05:49] Speaker 00:
were covered by Procopio.

[00:05:51] Speaker 00:
They haven't stayed.

[00:05:52] Speaker 00:
People have died.

[00:05:54] Speaker 00:
Other people may or may not ever be contacted.

[00:05:59] Speaker 00:
But the airspace becomes relevant when you look at the fact that somebody in the airspace over the territorial sea will no longer be able to get covered.

[00:06:12] Speaker 00:
Why?

[00:06:13] Speaker 00:
Because the secretary has contended that 1116A

[00:06:17] Speaker 00:
actually replaces 1116.

[00:06:19] Speaker 00:
And Your Honor, I would point you to page four of the appendix, appendix four, where there's a memorandum from the Venice Benefits Administration that confirms that.

[00:06:34] Speaker 02:
The secretary says in the documents that reach us that this change of law is overwhelming their resources in terms of handling the work, the statutory change.

[00:06:50] Speaker 02:
And so he imposes a six-month delay in effectiveness.

[00:06:57] Speaker 02:
And also, and one aspect which I thought was curious,

[00:07:02] Speaker 02:
or requires that the claims be refiled.

[00:07:05] Speaker 02:
But is your understanding of all of these proceedings that on January 1st it goes back to

[00:07:15] Speaker 02:
handling with all, it doesn't say that nothing is happening in this period of the stay.

[00:07:22] Speaker 02:
It's a more matter of priorities and then burdens.

[00:07:27] Speaker 02:
Is that correct?

[00:07:28] Speaker 00:
I didn't mean to interrupt you, Judge.

[00:07:29] Speaker 00:
I thought you were finished.

[00:07:30] Speaker 00:
It's interesting that you bring that up, because there's nothing in the statute that prevents the Secretary from extending the stay.

[00:07:37] Speaker 00:
He said he's not going to, but he told me in April that he was going to move forward with Procopio.

[00:07:42] Speaker 00:
But to answer your specific questions, the statement

[00:07:45] Speaker 00:
that they say that they have been overwhelmed, and so on and so forth, we consider it complete balderdash.

[00:07:51] Speaker 00:
That's the most polite word I can call for it.

[00:07:52] Speaker 00:
If you look at appendix 6 through 8, I'm sorry, appendix 8 through 10, we will show you that on the deck logs, these adjudication decisions make about a three to five minute decision.

[00:08:09] Speaker 01:
That deck log says they're in the Territorial C. Yes, but it takes the VA 18 months to issue a docket number in a case.

[00:08:15] Speaker 01:
So three to five minutes to you and I are apparently not three to five minutes to the VA.

[00:08:20] Speaker 01:
That's meant as a criticism of then you don't think about it.

[00:08:22] Speaker 00:
I understand that.

[00:08:23] Speaker 00:
We offered the system with it.

[00:08:25] Speaker 00:
We offered to bring our director of research up at our expense.

[00:08:28] Speaker 00:
And the secretary agreed to that.

[00:08:29] Speaker 00:
Everything seemed like it was going on track.

[00:08:32] Speaker 00:
But even with the VA, if you look in the long says Territorial C or on Appendix 7 where it says,

[00:08:38] Speaker 00:
Nantong Harbor, or on Appendix 8, where it says Danong Harbor in the midnight to 4, even the VA can make that decision in minutes.

[00:08:47] Speaker 01:
Well, and that's one of the things that concerns me is that the explanation the government gives for why these states are necessary, it seems to me the only substantive reason is because we're not sure exactly where the 12-mile limit is, and we may have to issue regs, or we may have to ask Congress

[00:09:07] Speaker 01:
But there's no question that the vast majority of these veterans whose cases have been stayed, they're not in dispute.

[00:09:12] Speaker 01:
Mr. Procopio, we know exactly where he was.

[00:09:14] Speaker 01:
He was well within the 12-mile limit, no matter how you define the 12-mile limit.

[00:09:17] Speaker 00:
Yes, ma'am.

[00:09:19] Speaker 01:
So it seems a bit arbitrary to have stayed all claims.

[00:09:22] Speaker 01:
But wait, the flip side of that is they were only stayed for six months while the VA, an agency which is absolutely struggling to do right by our veterans, and in my view, not unfortunately doing right by our veterans,

[00:09:37] Speaker 01:
they're struggling to, I don't know what to do.

[00:09:39] Speaker 01:
Six months is a very short period of time.

[00:09:41] Speaker 01:
I understand, not short for everybody, not short for Vietnam veterans who served a long time ago and who are actually sick, which is why they fall within this statute.

[00:09:49] Speaker 01:
So trust me, you've got me on all of that.

[00:09:52] Speaker 01:
But I just don't know what to do with such a short stay.

[00:09:56] Speaker 00:
I trust you, Judge Moore, but I'm not sure that I trust the Secretary to maintain six months.

[00:10:01] Speaker 01:
Well, you said there's no outer limit, but the statute does have an outer limit.

[00:10:04] Speaker 01:
It says he can only stay things until the Secretary commences implementation of 1116A.

[00:10:10] Speaker 00:
That's correct, Your Honor.

[00:10:11] Speaker 00:
And as you pointed out, it takes him 18 months to do a docket number.

[00:10:14] Speaker 00:
So, you know, we could be looking at six months,

[00:10:17] Speaker 00:
18 months, two years, we don't know.

[00:10:19] Speaker 01:
That was what I was wondering.

[00:10:19] Speaker 01:
Why isn't the implementation date the effective date?

[00:10:22] Speaker 01:
I mean, the effective date is the date the statute goes into effect, which is January 1, 2020.

[00:10:28] Speaker 01:
So if the government stands up and agrees that the implementation is the effective date, which is kind of what I understood from their brief, then the secretary would not have authority to extend stays.

[00:10:44] Speaker 00:
different reading of the statute, it actually says that he can start those states on January 1, 2020.

[00:10:51] Speaker 00:
But the implementing regulations is the end product, but we don't know when that's going to happen.

[00:10:56] Speaker 00:
Now, maybe the secretary will lift it on January 1.

[00:10:58] Speaker 01:
Well, you say implementing regulations, but I don't think that that's right.

[00:11:03] Speaker 01:
I mean, he's implementing the statute

[00:11:06] Speaker 01:
Isn't he going to be processing claims and issuing benefits?

[00:11:09] Speaker 01:
Is it your view that the government is going to wait?

[00:11:13] Speaker 01:
You need to stay by the podium.

[00:11:15] Speaker 01:
That's OK.

[00:11:16] Speaker 01:
Your voice won't be picked up and recorded properly if you walk away.

[00:11:20] Speaker 01:
But isn't it the case that the secretary and the VA has to start processing and awarding payment under 1116A effective January 1st?

[00:11:32] Speaker 00:
You would think so.

[00:11:34] Speaker 00:
We all agree that he was going to get his benefits back in the Procopio decision.

[00:11:38] Speaker 00:
He was remanded back from the Court of Appeals of Veterans Claims, and his claim is stayed.

[00:11:45] Speaker 00:
I don't think there's any guarantees.

[00:11:47] Speaker 00:
I'm sure that Mr. Broskin in good faith is going to come up and say,

[00:11:51] Speaker 00:
Look, I've been told that they're going to lift it on January the 1st.

[00:11:54] Speaker 00:
And certainly, that statements have been made.

[00:11:57] Speaker 00:
But that just means we have to see.

[00:11:59] Speaker 01:
Well, and here's the thing.

[00:12:00] Speaker 01:
I hate to tell you this.

[00:12:01] Speaker 01:
I mean, we're much quicker than the VA.

[00:12:03] Speaker 01:
But we're not instantaneous.

[00:12:06] Speaker 01:
We're into November.

[00:12:09] Speaker 01:
I'm a little worried by January 1, your complaint is moot if we can't act with that degree of expedience.

[00:12:16] Speaker 00:
And that might be the case, Your Honor, and something we've considered.

[00:12:18] Speaker 00:
But at the same time,

[00:12:21] Speaker 00:
Even if the decision comes out in December or January that's favorable to us, it will prevent any further extensions or the addition of any additional stays.

[00:12:31] Speaker 00:
Your Honor, I'm into my rebuttal time.

[00:12:33] Speaker 00:
I'm so sorry for that.

[00:12:34] Speaker 00:
But if I can reserve the remainder of my time, I'd appreciate it.

[00:12:40] Speaker 02:
All right.

[00:12:41] Speaker 02:
Let's hear from the government.

[00:12:45] Speaker 02:
Mr. Breskin?

[00:12:47] Speaker 03:
May it please the court.

[00:12:48] Speaker 03:
To address, Your Honor, Judge Moore's question,

[00:12:51] Speaker 03:
The state expires on January 1st.

[00:12:53] Speaker 03:
VA's statements to Congress in October were that the state is going to- Does the secretary's authority to do any further stays expire on January 1st?

[00:13:01] Speaker 03:
That is what we say in our brief.

[00:13:03] Speaker 03:
When he implements the act, which is- So I know you say it in your brief.

[00:13:07] Speaker 03:
Yes.

[00:13:07] Speaker 04:
I'd like to hear a yes.

[00:13:08] Speaker 03:
Yes.

[00:13:09] Speaker 04:
OK.

[00:13:09] Speaker 04:
So this particular provision of this new law that went into effect, or that was passed in last June, that part evaporates as of June 1, 2020.

[00:13:20] Speaker 04:
January.

[00:13:21] Speaker 04:
January, as when it comes to the power to stay.

[00:13:24] Speaker 03:
When the new statutory provision becomes effective on January 1, that's when the stay.

[00:13:29] Speaker 01:
OK.

[00:13:29] Speaker 01:
Not just that's on the state.

[00:13:31] Speaker 01:
I just want to get this sound bite, you know, like I'm deposing you.

[00:13:33] Speaker 01:
And I have my question, and I have my answer, because you bind the government.

[00:13:37] Speaker 01:
And if you bind the government, I'll be very happy.

[00:13:40] Speaker 01:
So my question to you is, is it your, is it the government's position that Section 1116A stay authority, which allows the secretary to issues, stays up until implementation,

[00:13:58] Speaker 01:
of Section 1116A only allows the Secretary to issue stays up until January 1st of 2020.

[00:14:06] Speaker 01:
And after that, this statutory section at least gives the Secretary no further stay power.

[00:14:11] Speaker 03:
Yes.

[00:14:12] Speaker 01:
Thank you.

[00:14:13] Speaker 03:
And I'd like to just expand upon that a little bit, because the effective date of 1116A is January 1st.

[00:14:22] Speaker 02:
But why isn't this?

[00:14:23] Speaker 02:
This seems quite straightforward, so that's OK.

[00:14:26] Speaker 02:
But why isn't this different?

[00:14:29] Speaker 02:
This litigant, this veteran, this plaintiff brought the action.

[00:14:33] Speaker 02:
He went through the whole litigation process.

[00:14:36] Speaker 02:
He got a favorable decision from this court.

[00:14:39] Speaker 02:
The petitions from CERT were eventually not filed.

[00:14:43] Speaker 02:
It's all over.

[00:14:44] Speaker 02:
Isn't this veteran entitled to the judgment that he got from this court, whether or not there was a statute that applies to the rest of the world?

[00:14:57] Speaker 03:
Yes, Your Honor.

[00:14:58] Speaker 02:
And then why should the stay apply to him?

[00:15:00] Speaker 03:
It doesn't, Your Honor.

[00:15:01] Speaker 03:
Mr. Procopio's claim has not been finally decided by the board, but my understanding is his stay.

[00:15:06] Speaker 03:
Is that because of his stay?

[00:15:08] Speaker 03:
I mean, he hasn't been finally decided by the board because of the stay memo.

[00:15:12] Speaker 03:
Because the mandate issued here March 22, I believe it went back to the CAVC, which issued its remand to the board sometime during the summer.

[00:15:21] Speaker 03:
I believe a letter went out from the board offering to allow Mr. Procopio to submit additional evidence in support of his claim.

[00:15:27] Speaker 03:
And it just hasn't reached that final point yet.

[00:15:30] Speaker 03:
But I believe it should soon.

[00:15:32] Speaker 03:
But his claim is not covered by the stay.

[00:15:34] Speaker 03:
And the reason for that is paragraph six on appendix one says the stay does not apply or does not prevent VBA or the board from complying with any order of any court.

[00:15:45] Speaker 03:
And the remand order from this court to the Veterans Court and from the Veterans Court to the board is an order that the stay does not affect.

[00:15:53] Speaker 03:
So Mr. Procopio's claim should be decided in due course and should not be affected by the stay.

[00:15:57] Speaker 03:
I'm confused.

[00:15:58] Speaker 04:
Has the VA communicated this to Mr. Procopio?

[00:16:03] Speaker 04:
That Mr. Procopio's claim has not been part of the stay and that, in fact, it's just part of some ordinary processing of his claims?

[00:16:12] Speaker 03:
I'm unaware of any communication

[00:16:15] Speaker 03:
Regarding the stay between VA and Mr. Procopio, I know there was a letter in early October offering Mr. Procopio the opportunity to submit additional evidence since they had received it on remand.

[00:16:26] Speaker 03:
So the working of the case was ongoing.

[00:16:29] Speaker 03:
But I can't represent whether there's been any communication.

[00:16:32] Speaker 02:
So he's here seeking enforcement of our judgment.

[00:16:37] Speaker 02:
And apparently, it's not being enforced.

[00:16:40] Speaker 03:
Well, I would dispute respectfully that he's here seeking enforcement of his judgment.

[00:16:45] Speaker 03:
He's here on a petition under Section 502 to challenge the stay.

[00:16:49] Speaker 03:
We could have raised a standing issue.

[00:16:52] Speaker 03:
with respect to Mr. Procopio because of the stay by its plain language.

[00:16:55] Speaker 01:
But you couldn't with regard to everybody else, so you're just skipping it.

[00:16:57] Speaker 01:
Right.

[00:16:57] Speaker 03:
And we agreed to expedite a treatment because of the short duration of the stay, and so to save everyone the trouble and effort.

[00:17:03] Speaker 02:
So how does one cope with this morass when it's so clear, it seems, from what you say as well, that there's no real dispute as to what ought to be happening?

[00:17:13] Speaker 02:
That is enforcement of the judgment.

[00:17:17] Speaker 03:
Well, I agree.

[00:17:17] Speaker 03:
As to Mr. Procopio, the remaining petitioners, his claim should be decided, and it should not be stayed until January 1.

[00:17:25] Speaker 03:
And I don't know exactly when the board's going to issue their decision, but it's not stayed in doing so until January 1.

[00:17:32] Speaker 03:
The other petitioners simply are seeking to take advantage of the precedent set by Procopio, but not a judgment of this court.

[00:17:39] Speaker 03:
And so there, the change in law affected by the Blue Water Navy Act does come into play, and the stay authority

[00:17:46] Speaker 03:
authorizes the Secretary to stay those claims in addition to newly filed claims under the new statutory provision.

[00:17:52] Speaker 04:
Your brief suggested that come January 1 or maybe January 2, the VA is going to start issuing decisions granting or denying claims of service presumption for Blue Water Navy veterans.

[00:18:07] Speaker 03:
Is that correct?

[00:18:07] Speaker 04:
Accurate?

[00:18:08] Speaker 03:
Yes, Your Honor.

[00:18:09] Speaker 03:
As the VBA representatives testified to Congress on October 30, they're all going to be there on January 1, issuing decisions on claims that have continued through development.

[00:18:20] Speaker 03:
But until the final guidance is in place and the final lines have been drawn, they cannot make a final determination on each and every claim.

[00:18:28] Speaker 03:
And so that was part and parcel of what they have been attempting to do in the sixth month

[00:18:34] Speaker 03:
So there's some guidance document you say VA will be issuing very soon.

[00:18:39] Speaker 03:
Yes, guidance and training that they're going to be giving to all the VBA claims adjudicators.

[00:18:44] Speaker 04:
When is the guidance document coming out?

[00:18:46] Speaker 03:
Well, there have been some guidance documents that have been issued.

[00:18:49] Speaker 03:
There are some open questions that they're still grappling with, such as we noted

[00:18:53] Speaker 03:
in the fact section of our brief, where exactly the line between Cambodian waters and Vietnamese water should be drawn, given the language in the statute.

[00:19:02] Speaker 03:
So there are some issues that they're still figuring out.

[00:19:06] Speaker 03:
But the training and guidance should all be done in time for them to begin issuing decisions on January 1.

[00:19:11] Speaker 03:
So in the next seven weeks, you're saying?

[00:19:13] Speaker 04:
Yes, sir.

[00:19:14] Speaker 04:
What about a notice of proposed rulemaking?

[00:19:17] Speaker 04:
Where's that?

[00:19:18] Speaker 03:
I don't know exactly.

[00:19:19] Speaker 03:
I know they are working on the regulations.

[00:19:22] Speaker 04:
But the Blue Water Navy Act is- So the VA believes, though, that it can handle all these claims while in parallel doing a rulemaking process?

[00:19:32] Speaker 03:
Well, I believe it's VA's position that the veterans should not be required to wait while they go through a formal notice of common rulemaking, which can obviously take a long time and

[00:19:43] Speaker 03:
Section 2C1 of the Blue Water Navy Act contemplated that the VA could- Right.

[00:19:47] Speaker 04:
I'm just trying to satisfy my own paranoia that the VA is not going to wait until final regulations issue before they ultimately process and decide on- That is not the VA's position.

[00:19:58] Speaker 02:
That is not the VA's intention.

[00:20:00] Speaker 02:
But here again, this veteran hasn't brought a class action.

[00:20:03] Speaker 02:
And apparently, he hasn't received the relief that the court assigned.

[00:20:10] Speaker 03:
Mr. Procopio, right.

[00:20:11] Speaker 03:
But he should be in due course, Your Honor.

[00:20:13] Speaker 03:
And his relief is not being affected by this day.

[00:20:17] Speaker 03:
His decision should be issued, I would hope, very soon by the board.

[00:20:22] Speaker 01:
It would have been nice if they had gotten it out before today, wouldn't it?

[00:20:26] Speaker 01:
It would have.

[00:20:27] Speaker 01:
Yeah.

[00:20:29] Speaker 04:
So as you, I just want to understand,

[00:20:33] Speaker 04:
Whose court is the ball in with respect to Mr. Procopio?

[00:20:36] Speaker 04:
You suggested earlier that perhaps the board was waiting on a submission of further evidence from Mr. Procopio.

[00:20:43] Speaker 04:
Is that where we are now, or is the ball really in the board's court, the BVA's court, where the BVA has everything it needs, and now it needs to render a decision on Mr. Procopio's claim?

[00:20:54] Speaker 03:
It's in the board's court.

[00:20:55] Speaker 03:
That's my understanding.

[00:20:55] Speaker 03:
As the BVA sent out a notice to Mr. Procopio that he had 90 days to submit additional evidence, he could waive that time, and the board would move to an immediate adjudication.

[00:21:05] Speaker 03:
And he did waive that time, and so the board has moved to adjudicating his claim.

[00:21:10] Speaker 02:
Were you in the courtroom for the appeal, for Copia appeal argued earlier this week?

[00:21:18] Speaker 03:
No, but I am aware of it.

[00:21:19] Speaker 02:
Well, and it left me with the impression that they were arguing with him to establish that he was within the territorial waters.

[00:21:28] Speaker 02:
You say that that's over?

[00:21:31] Speaker 03:
Well, I don't know the specific location of his service.

[00:21:35] Speaker 03:
I do believe Mr. Lawson, it was unclear from the records whether he had type 1 or type 2 diabetes.

[00:21:40] Speaker 03:
And so there were other factual questions that needed to be determined on remand.

[00:21:45] Speaker 03:
Certainly, a stay is a rather blunt instrument.

[00:21:48] Speaker 03:
And there are veterans who service records may show that they were within visual distance of land.

[00:21:55] Speaker 03:
And I don't know the facts in Mr. Lawson's case well enough to say whether he falls within that or not.

[00:22:01] Speaker 03:
But the line drawing that is required under the Blue Water Navy Act will be complete by January 1.

[00:22:06] Speaker 03:
And in addition, the VA is undertaking a massive scanning of all Navy deck logs held by the archives so that they can be fed into an electronic tool that the claims adjudicators can use to very quickly determine whether or not someone's served within the geographic boundaries

[00:22:25] Speaker 03:
of the Blue Water Navy Act.

[00:22:26] Speaker 03:
So there's a lot that is ongoing in order to expedite the treatment of these claims, including, I would assume, Mr. Lawson's claim.

[00:22:33] Speaker 03:
Again, though, Mr. Lawson's claim will be remanded, presumably, by this court.

[00:22:37] Speaker 03:
Or if it's remanded, it would not be affected by this day, similar to Mr. Picopio's claim.

[00:22:44] Speaker 02:
OK.

[00:22:44] Speaker 02:
Anything else?

[00:22:45] Speaker 02:
Anything else?

[00:22:47] Speaker 04:
Do we have the power to review this?

[00:22:49] Speaker 04:
Because it's, at minimum, an interpretive rule.

[00:22:54] Speaker 03:
Your honor, we would dispute that it's an interpretive rule at all.

[00:22:57] Speaker 03:
I think the stay memorandum itself simply applies the authority given in section two of the Blue Water Navy Act.

[00:23:06] Speaker 03:
If it was an interpretive rule of general applicability, it would fall under 552A1 and would be reviewable.

[00:23:13] Speaker 03:
Our position is there's nothing interpreted in this stay memorandum.

[00:23:17] Speaker 03:
The memorandum says you can stay claims related to service covered by 1116A and for the diseases covered by that.

[00:23:24] Speaker 04:
But did the secretary have to engage in some kind of interpretation of the new law that, in his view, grants him this authority to do these kinds of stays to claims that preexisted the law that passed in June?

[00:23:36] Speaker 03:
I don't believe so, Your Honor.

[00:23:38] Speaker 03:
The plain language of the stay authority

[00:23:40] Speaker 03:
is that he can stay the claims that he stayed.

[00:23:43] Speaker 03:
And so it didn't require any interpretation to reach the stay memorandum here.

[00:23:48] Speaker 03:
The memorandum does not put forth any interpretation of that provision.

[00:23:53] Speaker 03:
It simply states that he was authorized.

[00:23:55] Speaker 03:
And the plain language of the statute so authorizes him.

[00:23:59] Speaker 04:
The opposing counsel mentions that, in his view, what the VA has effectively done is eliminated 116 claims and shunted everyone into

[00:24:10] Speaker 04:
1116A.

[00:24:13] Speaker 03:
What is the VA's position on this?

[00:24:16] Speaker 03:
I think with respect to service in the offshore waters, Congress's use of the term notwithstanding at the beginning of 1116A subparagraph D suggests that for sailors, their claims will be considered under the geographic boundaries of 1116AD.

[00:24:33] Speaker 03:
I think I don't know the answer with respect to service in the airspace.

[00:24:37] Speaker 03:
The Procopio decision does not, I don't believe, expressly address service in the airspace.

[00:24:42] Speaker 03:
1116 has not been repealed.

[00:24:46] Speaker 03:
And so one could imagine a claim from an airman attempting to argue that Procopio provides him with a route for presumptive service connection.

[00:24:55] Speaker 03:
But because we haven't really delved into that type of claim, I can't say for sure how this stay provision affects that claim.

[00:25:10] Speaker 03:
And the support has any further questions.

[00:25:13] Speaker 03:
Thank you, Your Honor.

[00:25:14] Speaker 02:
Thank you, Mr. Bruskin.

[00:25:16] Speaker 02:
Mr. Wells.

[00:25:19] Speaker 00:
Your Honors, I don't question Mr. Bruskin's belief in what he says, but I'm Al Procopio's lawyer.

[00:25:24] Speaker 00:
I can tell you, he stayed.

[00:25:26] Speaker 00:
Yes, we got a 90-day letter.

[00:25:27] Speaker 00:
That's something that's generated out of the Board of Veterans' Appeals.

[00:25:30] Speaker 00:
With every case, we have other Blue Water Navy veterans have gotten the same 90-day letter.

[00:25:35] Speaker 00:
And we've said, no, no more evidence.

[00:25:36] Speaker 00:
No more evidence is necessary.

[00:25:38] Speaker 00:
This is a case that should have been

[00:25:41] Speaker 00:
decided as a matter of priority, we've talked settlement with the general counsel's office, and we told them no.

[00:25:48] Speaker 00:
And if you look at the mandate, excuse me, the remand in the appendix, it basically says it's gone back to the board, and that's where it stayed.

[00:26:00] Speaker 00:
So I appreciate that Mr. Bruskin is not misrepresenting.

[00:26:04] Speaker 00:
I think he's just a little mistaken on exactly what the status is.

[00:26:07] Speaker 00:
If there's any communications to Mr. Procopio dealing with his case going forward.

[00:26:13] Speaker 01:
Just to be clear, Mr. Procopio has not been informed that his case has stayed, right?

[00:26:17] Speaker 00:
He's been informed it's been stayed, yes.

[00:26:19] Speaker 01:
By whom?

[00:26:20] Speaker 00:
By me.

[00:26:21] Speaker 00:
When the full stay came out.

[00:26:22] Speaker 01:
OK, that's just a tiny bit circular for me.

[00:26:24] Speaker 01:
I understand where you're going.

[00:26:26] Speaker 00:
I don't think anybody has specifically gotten a letter saying,

[00:26:33] Speaker 00:
Let me back up on that, because some letters have been coming out on the state.

[00:26:37] Speaker 00:
And I've got a number of water clients.

[00:26:39] Speaker 00:
I just don't remember off the top of my head whether Mr. Krook helped me or not.

[00:26:42] Speaker 01:
He did not.

[00:26:43] Speaker 01:
Well, at least I've checked the entire docket, which is supposed to contain all the filings.

[00:26:46] Speaker 01:
And he did not get a stay letter, at least according to the docket below.

[00:26:50] Speaker 01:
But not everything gets docketed.

[00:26:52] Speaker 01:
So I'm not sure.

[00:26:54] Speaker 01:
So I don't understand why you're so certain his claim has been stayed.

[00:26:59] Speaker 01:
I mean, we've all been hinting about how long it takes the veterans

[00:27:03] Speaker 01:
agency to do even the simplest of tasks.

[00:27:07] Speaker 01:
So it hasn't been before the BVA that long awaiting final resolution having been sent back from the court and having him requested, do you want to submit new evidence?

[00:27:19] Speaker 01:
He says, no, I waived that.

[00:27:21] Speaker 01:
It hasn't been there that long.

[00:27:22] Speaker 01:
So why are you positive it's waived or stayed as opposed to they're just unfortunately slow in processing it, but they're processing it just like they should be?

[00:27:32] Speaker 00:
There are matters that were outside the record negotiations between myself and his own counsel's office that have caused me to have that rather firm opinion.

[00:27:40] Speaker 00:
And I'm sorry, it's not in the record, so we can't go into it.

[00:27:42] Speaker 00:
But it's my honest belief, so I stand here before you, that his case is not staked.

[00:27:48] Speaker 00:
I'm sorry, his case is staked.

[00:27:50] Speaker 01:
I'm sorry.

[00:27:51] Speaker 01:
No matter what happens in this case, one thing that should bring you, I would hope, great solace

[00:27:56] Speaker 01:
is the government is now bound by the statement that was very clearly made today that their interpretation of 1116A is that the Secretary's stay authority does not extend beyond January 1, not just that this stay doesn't extend beyond January 1,

[00:28:12] Speaker 01:
that the secretary would not be able to thereafter adopt another stay at that point.

[00:28:17] Speaker 00:
Circumstances change, Your Honor, and there could very well be a situation where, oh, gee, we didn't get everything scanned in time.

[00:28:22] Speaker 00:
Our deck log tool just wasn't properly developed.

[00:28:26] Speaker 00:
We're just going to have to expand it.

[00:28:26] Speaker 01:
No, no, that's not the case.

[00:28:28] Speaker 01:
We asked him about the interpretation of the statute and what authority it gave the secretary.

[00:28:33] Speaker 01:
And the government was very clear on its position.

[00:28:35] Speaker 01:
I even told him, treat this like a deposition so you understand.

[00:28:38] Speaker 01:
I'm attempting to bind you.

[00:28:39] Speaker 01:
And he did.

[00:28:41] Speaker 01:
So he obviously was authorized to come in and make that position clear.

[00:28:45] Speaker 01:
If that has any impact on the decision today, I would think that you would have great cause to have an estoppel-like argument against future states.

[00:28:54] Speaker 00:
Oh, we certainly would.

[00:28:54] Speaker 00:
And we would certainly push that.

[00:28:56] Speaker 00:
But your honors, and I'm sorry, I'm out of time.

[00:29:00] Speaker 00:
If you'll give me another moment, please.

[00:29:02] Speaker 00:
We have to look at the plain language of all the statutes and the two statutes.

[00:29:07] Speaker 00:
1116A did not give the secretary the authority to stay any claims brought under Procopio.

[00:29:16] Speaker 00:
Only gave claims brought under public law 116-23.

[00:29:21] Speaker 00:
Is this law got some internal inconsistency?

[00:29:25] Speaker 00:
Sure.

[00:29:26] Speaker 00:
We recommended against it.

[00:29:27] Speaker 00:
I will tell you that.

[00:29:28] Speaker 00:
I think I cited that in the brief.

[00:29:30] Speaker 00:
because of these internal inconsistencies and because of the stay.

[00:29:34] Speaker 00:
And everybody felt, no, except us.

[00:29:37] Speaker 00:
That wouldn't apply.

[00:29:38] Speaker 00:
And the appendix has a number of letters from Chairman Tacano, Senator Tester, et cetera, et cetera, saying, oh, gee, no, this doesn't apply to Procopio claims.

[00:29:48] Speaker 00:
And it doesn't.

[00:29:50] Speaker 00:
But the secretary has so decreed.

[00:29:52] Speaker 00:
The integrity of the legal system requires that that be corrected, if nothing else.

[00:29:57] Speaker 00:
Nothing else for Mr. Procobio, but also Mr. Harbor, who's not going to make it.

[00:30:02] Speaker 00:
He's hanging in on a sheer cousinness right now.

[00:30:06] Speaker 00:
For him, for Mike Ventus, for Mike Yates, and the other Blue Water Navy sailors who are sitting here getting sicker, closer to dying by the day, when it's a, even for the VA, three to five minute decision to say, yes, he was in Harbor.

[00:30:22] Speaker 00:
Yes, he was on a ship type that was conducting gunfire support.

[00:30:27] Speaker 00:
and the secretary about all.

[00:30:29] Speaker 00:
I'm sorry, we're running out of time.

[00:30:30] Speaker 00:
I appreciate the court's indulgence.

[00:30:33] Speaker 02:
Thank you.

[00:30:33] Speaker 02:
Thank you both.

[00:30:34] Speaker 02:
The case is taken under submission.

[00:30:36] Speaker 02:
That concludes our arguments for today.