[00:00:00] Speaker 03:
Our next case is Darryl R. Blanton versus Wilkie, case number 19-2009.

[00:00:09] Speaker 03:
Mr. Carpenter, are you ready to proceed?

[00:00:12] Speaker 03:
I am, Your Honor.

[00:00:14] Speaker 03:
And you reserve five minutes of time for rebuttal, correct?

[00:00:16] Speaker 03:
Yes, I do.

[00:00:18] Speaker 03:
OK, you may go ahead, please.

[00:00:20] Speaker 01:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Darryl Blanton.

[00:00:25] Speaker 01:
I'd like to begin the argument by discussing this court's inbound decision in Cook.

[00:00:30] Speaker 01:
specifically that that inbox decision by this court did not have cause to, nor did it, interpret the provisions of 38 USC 519A.

[00:00:43] Speaker 01:
The court in Cook did not rely upon an examination of the language as this case requires of that statute, but rather relied upon the tenets of Russell to demonstrate

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why the prior decision in Hare should be overruled on the basis that it remained pending.

[00:01:06] Speaker 01:
In Cook, the court applied the law of Q as it understood it to be based upon the very issue that is being presented by this court, which is whether or not that is or is not a holding in the Russell case and its subsequent progeny as to the question of the

[00:01:28] Speaker 01:
requirements to establish a claim of clear and unmistakable error.

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The issues in Cook were whether or not to overrule the decision in Hare, the grave procedural error, and whether that renders a decision non-final by the Department of Veterans Affairs.

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And secondly, whether or not if Hare is overruled, can the duty to assist constitute a violation of, excuse me, constitute clear and unmistakable error

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under the statute as written.

[00:02:01] Speaker 01:
Although the decision in Cooke is just a- Councilor Carpenter?

[00:02:04] Speaker 03:
Yes, Your Honor.

[00:02:05] Speaker 03:
This is Judge Raina.

[00:02:07] Speaker 03:
It seems to me that the argument that you're raising, that we've addressed it, and the argument was rejected in the Cooke case.

[00:02:18] Speaker 03:
Why is it that's the case here?

[00:02:21] Speaker 01:
Well, as I was explaining, Your Honor, it's not the case because the Cooke case did not have occasion

[00:02:26] Speaker 01:
to examine the language of the statute.

[00:02:31] Speaker 01:
The Cook case only examined the existing understanding of clear and unmistakable error as represented by Russell and its progeny.

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The discussion in Cook was not necessary to address the question of the interpretation of

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the statute as is being asked by Mr. Blanton in this case.

[00:03:00] Speaker 03:
You're saying that the portion of the Cook case that would arguably apply to your case is just dicta?

[00:03:08] Speaker 01:
Yes, Your Honor, it is, because it relies upon dicta.

[00:03:13] Speaker 01:
And that is the very point of law that is presented by Mr. Blanton's appeal, whether or not the

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holdings or presumed prior presumed holdings in Russell and its progeny including Cook constitute dictates because there was nothing required in the Russell case for the discussion of or the establishment of the very specific requirements that were extracted

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from the then language of the regulation at 3.105 parens a. And the question in Cook was only about whether or not this court should or should not overrule heir and whether or not a duty to assist violation could constitute it given the current understanding of the law.

[00:04:12] Speaker 01:
And at that point, everyone accepted the proposition that

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Russell was properly decided, and that when Congress adopted essentially the exact language from the regulation, that that same case law would apply equally to the statute, which is essentially the discussion of 5109A in Cook by the in-bunk decision.

[00:04:42] Speaker 02:
Mr. Carpenter?

[00:04:44] Speaker 02:
Yes, Your Honor.

[00:04:45] Speaker 02:
Yes.

[00:04:45] Speaker 02:
At 1345 of Cook, we stated, we conclude that decisions of this court and the Veterans Court, concluding that a clear and unmistakable error at the RO level must be outcome determinative and must be apparent from the evidence of record at the time of the original decision, are supported by the language of the statute and its legislative history.

[00:05:09] Speaker 02:
And then subsequently, in the Wilsey case,

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At page 1371, we stated the rule of law for determining if Q is present is stated in Decisions of the Veterans Court.

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And we went on from there.

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We quoted the test was subsequently adopted in substance in Cook v. Principe.

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And you could also, I think, look at Natale and Morris.

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Let's assume that Russell, the language without deciding, let's assume it was dictated.

[00:05:46] Speaker 02:
Would we not have to urge our colleagues, would not Judge Raina and Judge Stoll and I have to recommend that this case be taken in bank in order to achieve the result you want?

[00:05:57] Speaker 02:
Because we'd have to be overturning all these cases of ours.

[00:06:02] Speaker 01:
Well, I certainly think that that is an alternative for this panel.

[00:06:07] Speaker 01:
However, if the panel accepts the proposition that the language in Russell, which is the language that was quoted in the Cook decision about outcome determinative, et cetera, was dicta, then dicta, relying upon dicta, does not repeat a whole thing.

[00:06:30] Speaker 02:
Let's assume you're right that it is dicta, OK?

[00:06:34] Speaker 02:
Yes.

[00:06:35] Speaker 02:
Wouldn't we not be then in the position where, as a court, we have said we're adopting that statement?

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And something can be dictated, but then if a higher court comes along and says, we adopt that as a rule of law, it's now removed from the dicta if it was that.

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So what difference does it make?

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If we have adopted the rule stated in Russell,

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As the rule of our court, what difference does it make that it was dicta in Russell?

[00:07:08] Speaker 01:
Because of the fundamental concepts of stare decisis.

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The purpose of stare decisis is to hold to prior rulings.

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The prior ruling in Russell was flawed.

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It was flawed because the litany of standards that were articulated that are especially onerous and difficult for a veteran to meet.

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are not standards that are reflected in the language of then the regulation and now the statute.

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I am asking this court... But then later, Mr. Carpenter, later in Cook, we said that it was in line with the statute.

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It was in line with the statute and the legislative history.

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And what I'm suggesting to you, Your Honor, that it can only be in alignment if the underlying dicta

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which is not stare decisis, is accepted as a holding.

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And that what I'm asking in this case is for this court to look to the plain language of the statute and see if there is any possible way that the standards can be extrapolated from that language.

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Specifically when the only thing that is clear

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and precise in the language of the statute is that it calls upon the submission of evidence to establish a clear and unmistakable error.

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None of these legal standards articulated in Russell and I will stipulate were adopted in Cook

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relate to the submission of evidence?

[00:08:53] Speaker 03:
Well, now in Cook we said that we set the requirement that the outcome be terminated and apparent from the evidence at the record at the time of the original decision.

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We said this is supported by the language of 5109A and its legislative history.

[00:09:13] Speaker 03:
So we've already made this statutory interpretation that you're asking us to take up.

[00:09:20] Speaker 01:
Well, I respectfully disagree, Your Honor, and I respectfully disagree that that was necessary for the two issues that were presented to the inbound court.

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That the notion of those principles in Russell had nothing to do with whether or not the full court should overrule the decision in air.

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and then once overruled, go to the question not of the legal standards that were articulated, but what a subsequent expansion of the Russell Doctrine did, which was to say that the duty to assist is a bar to a claim of clear and unmistakable error.

[00:10:04] Speaker 02:
Mr. Carpenter, as a settled prudential matter, in order to achieve the result you want

[00:10:12] Speaker 02:
Doesn't this issue have to go in bank to the full court?

[00:10:14] Speaker 02:
Would we not have to stay?

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Would we not, given the fact of Cook and the other cases that I mentioned and know of, would the only way we could change, achieve the result you want would be for this panel to recommend to the full court that the case be taken on bond to overrule Cook and other cases following it, right?

[00:10:39] Speaker 01:
Yes, Your Honor.

[00:10:40] Speaker 01:
And I do not mean to protest against that action.

[00:10:46] Speaker 01:
I am simply trying to clarify in response to the questions from the panel.

[00:10:51] Speaker 01:
I think you have to embrace that action.

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It's the only way one can arrive at the result you want.

[00:10:57] Speaker 01:
That I fully embrace it, Your Honor.

[00:10:59] Speaker 01:
Please do not allow my digressions to be perceived as not embracing that view.

[00:11:08] Speaker 03:
OK, I believe I heard the timer go off.

[00:11:10] Speaker 03:
Is that correct?

[00:11:12] Speaker 03:
I didn't.

[00:11:15] Speaker 01:
OK, continue.

[00:11:16] Speaker 01:
I'm sorry, I didn't hear.

[00:11:17] Speaker 01:
OK.

[00:11:20] Speaker 03:
You may continue.

[00:11:22] Speaker 01:
Oh, OK.

[00:11:25] Speaker 01:
Well, actually, I think this is probably a fairly decent stopping point.

[00:11:30] Speaker 01:
I think everything else that I have simply dovetails with why this panel should recommend

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to the full court that this issue be reconsidered by the full court based upon the question of whether or not the language in Russell is dicta and whether or not the language in Cook potentially is dicta as well and whether or not based upon the plain language of the statute the full court should reconsider this matter.

[00:12:07] Speaker 03:
All right, we thank you for that.

[00:12:20] Speaker 03:
Councillor Loft, oh, Gravins.

[00:12:24] Speaker 03:
Are you ready?

[00:12:26] Speaker 00:
Yes, your honor.

[00:12:27] Speaker 03:
Okay.

[00:12:28] Speaker 03:
May I please- Did I pronounce your name correctly?

[00:12:31] Speaker 00:
Yes, your honor.

[00:12:32] Speaker 00:
I'm Eric Loft-Riven on behalf of the secretary.

[00:12:36] Speaker 03:
All right, you may proceed please.

[00:12:38] Speaker 00:
May it please the court.

[00:12:40] Speaker 00:
The decision below should be affirmed for three reasons.

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First, before the Q challenge even is addressed, the court should decline to take it up in the first place because Mr. Blanton did not raise it below.

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Mr. Blanton pursued his Q claim for about 14 years in the regional office, the board, and then the Veterans Court.

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And it wasn't until he filed his brief here when Mr. Blanton made any mention of this challenge to the interpretation of the Q Statute.

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So just on that thesis alone, the decision below should be affirmed.

[00:13:14] Speaker 00:
But second, even if the court reaches Mr. Blanton's challenge to the Q framework, I believe he's conceded that his argument is foreclosed by this court's en banc decision in Cook.

[00:13:27] Speaker 00:
In that case, the court considers the precise arguments

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that Mr. Blanton, like Mr. Cook in page 1344, Mr. Cook advances three arguments in support of his position.

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First, he contends that requiring the Q analysis to be conducted on the record as it existed at the time of the original decision is flawed.

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He urges that the requirement that the error must be outcome-determinated is also flawed.

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So the court has already

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seen this episode and sitting on banks, it's decided that the existing Q framework is consistent with the statute to address these precise questions.

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And simply put, there's been nothing, no change in the jurisprudence or no change in the statute that would compel the court to reconsider this decision now.

[00:14:23] Speaker 00:
And finally, I just want to address a final argument that he makes.

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about an inconsistent pleading standard requirement, that's not what the Veterans Court determined at all.

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Mr. Blanton in that forum raised a new argument in support of his two claims and the Veterans Court simply applied its issue exhaustion law to the facts of that case and determined that its institutional interests outweighed Mr. Blanton's interest in having an argument adjudicated

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when given that the argument was unclear and undeveloped to the Veterans Court?

[00:15:05] Speaker 00:
Basically, because Mr. Blanton shows no error, the decision below should be affirmed.

[00:15:16] Speaker 00:
Given Mr. Blanton's concession that this court would need to take the case up en banc to revisit the Q framework, there's really not much else to

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to explain.

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The point of whether or not these is fixed, again, is irrelevant because the course already taken up these positions.

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It's not like it blindly applied some framework.

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It conducted an independent analysis of the precise questions that were raised here.

[00:15:56] Speaker 00:
Finally, I guess the other point I want to make is just the pure existence of Q as a remedy already demonstrates the extraordinary nature of, sorry, the extraordinary benefits that come with demonstrating Q already reflect the benevolent statutory and regulatory framework that governs veterans' claims in pretty much

[00:16:25] Speaker 00:
Most all other scenarios and administrative decision that's not appealed as final is binding and you can reopen it.

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The fact that you can reopen it in this context already reflects the special treatment given to veterans.

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Essentially what Mr. Blanton is arguing is that there should be no finality requirement and there's nothing in the statute or the regulation that would support basically the elimination of a finality requirement.

[00:16:58] Speaker 03:
All right, anything else?

[00:17:01] Speaker 00:
No, Your Honor, not unless the panel has any questions.

[00:17:04] Speaker 03:
Does Judge Schill, Judge Stoll, any questions?

[00:17:09] Speaker 03:
I have no questions.

[00:17:12] Speaker 01:
I have no questions.

[00:17:13] Speaker 01:
Thank you.

[00:17:15] Speaker 03:
Okay, Council, we thank you for your argument.

[00:17:17] Speaker 03:
Let's hear back from Mr. Carpenter.

[00:17:19] Speaker 01:
May I please record, I'd like to use the remaining five minutes that I have or whatever time I have left

[00:17:25] Speaker 01:
to discuss the reasons why this panel should refer this matter to the full court.

[00:17:31] Speaker 01:
I think it begins with an analysis of what the provisions of 3.105A were in 1992 and had been since its inception.

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And that is that they were remedial.

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They were intended to correct a mistake made by the VA in its adjudication.

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specifically a denial.

[00:17:55] Speaker 03:
Mr. Carpenter?

[00:17:56] Speaker 03:
Yes, Your Honor.

[00:17:57] Speaker 03:
You raised this argument as the legal basis for even our jurisdiction.

[00:18:02] Speaker 03:
We can consider fact issues, as you know, and we can review questions of law dealing with statutory interpretation.

[00:18:13] Speaker 03:
Now, have you made this argument before in other cases, this same argument?

[00:18:21] Speaker 01:
I know I have made it before, Your Honor.

[00:18:23] Speaker 01:
I cannot recall whether or not that has ever gone to a panel of either court at this moment.

[00:18:31] Speaker 01:
I'm sorry.

[00:18:33] Speaker 01:
I just don't recall.

[00:18:35] Speaker 03:
Well, if you had made it before this court and had won on the issue, you certainly wouldn't remember, I would think.

[00:18:42] Speaker 01:
I most certainly would, Your Honor.

[00:18:43] Speaker 01:
I apologize.

[00:18:44] Speaker 01:
I meant simply that I do not recall having specifically made the remedial purpose argument.

[00:18:52] Speaker 03:
Well, it just seems to me that your argument doesn't have much legs.

[00:18:58] Speaker 03:
You're asking us to make a certain number of assertions or findings with respect to our prior rulings.

[00:19:08] Speaker 03:
You put up started decisis as

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at work for you as something to your advantage, when actually I think it started decisively to work to your disadvantage.

[00:19:22] Speaker 03:
You're asking us to overrule long-established law that we've applied in many cases.

[00:19:29] Speaker 03:
And it seems that this argument has already been raised and considered by this court.

[00:19:38] Speaker 01:
Well, Your Honor, with all due respect, I was counsel in Cook.

[00:19:42] Speaker 01:
And the arguments that were presented in Cook were in relationship to the two specific questions that were presented by the full court to counsel for both sides, which had to do with- You've already challenged this particular statute making these arguments, these same arguments.

[00:20:05] Speaker 01:
With respect, Your Honor, I did not.

[00:20:07] Speaker 01:
What this argument is about,

[00:20:11] Speaker 01:
is what the language of both the regulation and the statutes say, and that you cannot extrapolate from that language, which talks in terms of evidence, to mean that there are these onerous legal standards that were articulated in Russell.

[00:20:31] Speaker 01:
And in particular, I would point the court's attention to the fact that in the same regulation that is the predecessor regulation for 3.105A,

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is 3.105D.

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And 3.105D is the opposite side of the same coin in which the secretary is afforded the opportunity by clear and unmistakable error to sever a grant of service connection.

[00:21:04] Speaker 01:
But in the secretary's own language, the secretary allows himself

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to present evidence that was not of record at the time.

[00:21:17] Speaker 01:
And I presume that was my warning that I am out of time.

[00:21:21] Speaker 03:
Yes.

[00:21:22] Speaker 03:
OK.

[00:21:23] Speaker 03:
We thank you, Mr. Carpenter.

[00:21:24] Speaker 03:
We thank the parties for that.

[00:21:27] Speaker 03:
We thank all the parties for their arguments.

[00:21:28] Speaker 03:
This case is now submitted.