[00:00:00] Speaker 00: 20-1072, Zebio versus Wilkie. [00:00:05] Speaker 00: It is an appeal from the Court of Veterans Claims. [00:00:09] Speaker 00: And we're going to begin with Mr. Stolls. [00:00:14] Speaker 00: Are you ready? [00:00:15] Speaker 04: I am, Your Honor. [00:00:16] Speaker 04: Thank you. [00:00:17] Speaker 00: You may proceed. [00:00:19] Speaker 04: Good morning, and may it please the court. [00:00:21] Speaker 04: The board knew about the NAS report. [00:00:24] Speaker 04: The Veterans Court aired. [00:00:25] Speaker 01: This is Judge Toronto. [00:00:26] Speaker 01: I want to stop you right there. [00:00:29] Speaker 01: How do we know that? [00:00:32] Speaker 01: I look at the board, and you said this repeatedly, and I still can't get it, so I really would like to understand this. [00:00:40] Speaker 01: When I look at the board's opinion, there's a reference to regulations, to the authority to have regulations coming out of NAS reports, but I don't see any reference to the 2014 report. [00:00:52] Speaker 01: Even if I look back at the regulations at the Federal Register entries from 2016, [00:01:01] Speaker 01: 17 and 2016 where the regulations were enacted. [00:01:08] Speaker 01: There's no specific reference, as far as I can tell, from searching to the 2014 update. [00:01:13] Speaker 01: I'm not sure that it's an important part of your argument, but you make it rather central, including in your opening sentence today. [00:01:21] Speaker 04: Two places for sure, Your Honor, that are very obvious. [00:01:24] Speaker 04: One, Appendix 66, the board references the NAS report [00:01:28] Speaker 04: And also, it was conceded at oral argument before the CABC. [00:01:32] Speaker 01: Can you show me where the board references the 2014 update? [00:01:38] Speaker 04: It does not specifically say the 2014 update, Your Honor, but it does discuss the National Academy of Sciences and scientific information and references 1116. [00:01:50] Speaker 00: It's just in a boilerplate, right? [00:01:53] Speaker 00: It's not actually discussing it. [00:01:56] Speaker 01: It's not even citing it, is it? [00:01:59] Speaker 04: We cite this, Your Honors, for the proposition and for the point that the Board had knowledge that this existed. [00:02:09] Speaker 04: And again, it was conceded at oral argument at the CAVC. [00:02:14] Speaker 04: There was never a question in this case that the Board, and more importantly, truly, is that the agency [00:02:21] Speaker 04: including the Board of Veterans' Appeals, has direct knowledge of this report. [00:02:27] Speaker 01: I thought that the concession was that the agency does, which doesn't necessarily mean the board does. [00:02:35] Speaker 01: Well, if the agency does, I would submit, Your Honor, that the board does. [00:02:39] Speaker 01: Well, do you have the... Does the joint appendix contain the transcript of this concession you're referring to? [00:02:47] Speaker 04: Yes, Your Honor. [00:02:48] Speaker 04: I believe so, Your Honor. [00:02:58] Speaker 01: I'm sorry to make a big deal out of it, but you rather centrally feature this idea of what the board knew as a potential limiting principle for your argument. [00:03:10] Speaker 01: And I keep looking for where this point is established. [00:03:17] Speaker 04: Well, I do want to stress to your honor that the [00:03:24] Speaker 04: really the linchpin of the argument is that the agency knows about this. [00:03:28] Speaker 04: Because putting aside Mr. Eusebio's specific case, the agency has knowledge of this NAS report. [00:03:34] Speaker 01: But now you really do start to face the kind of where does this end concerns that lurk about this case. [00:03:49] Speaker 01: It really is one thing to say, [00:03:51] Speaker 01: the board, the particular board judges who were writing this actually knew about it and didn't attend to it. [00:04:00] Speaker 01: And another thing to say that somewhere in this mammoth agency is this report along with lots of other things. [00:04:11] Speaker 04: This is this and the dissent frankly hits this head on. [00:04:15] Speaker 04: This is not something that's buried [00:04:19] Speaker 04: somewhere in a library far, far away. [00:04:21] Speaker 04: The NAS report, when you Google NAS and VA, you get a hit for this. [00:04:29] Speaker 04: The board has, in my experience as a veteran advocate, and cited more importantly, cited in our opening brief and reply briefs, has used this before. [00:04:41] Speaker 04: It was commanded, the agency was commanded by Congress [00:04:44] Speaker 04: to rely on this and to have it created by the National Academy of Sciences. [00:04:48] Speaker 04: This is something that the agency knows well about. [00:04:50] Speaker 04: It was in its purple book, which has been cited. [00:04:52] Speaker 04: The board knew about it in the manual that it uses. [00:04:55] Speaker 04: This is far from some obscure, as Sellers said, the unguided safari. [00:05:02] Speaker 04: This is far from something that is just so far outside of the realm of the department's knowledge. [00:05:08] Speaker 04: It's something that is utilized truly every day in Agent Orange cases. [00:05:13] Speaker 00: To help you out a little bit, didn't Judge Allen specifically cite something where he said the secretary conceded at oral argument before the court that the board was actually aware of it? [00:05:25] Speaker 00: Yes, Your Honor. [00:05:28] Speaker 01: Yes, Your Honor, he did. [00:05:30] Speaker 01: And just to double check, do we have that transcript or no? [00:05:38] Speaker 04: Yes, Your Honor, I apologize. [00:05:41] Speaker 04: I'm looking for it. [00:05:44] Speaker 04: And Judge Allen's dissent. [00:05:45] Speaker 00: Besides to the transcript at page eight notes, footnote three? [00:06:05] Speaker 00: Yes. [00:06:07] Speaker 00: Is that in the appendix? [00:06:11] Speaker 04: It's an appendix. [00:06:16] Speaker 00: It's a citation to the YouTube video link. [00:06:20] Speaker 01: Yes, it's in the... Okay, I think I understand the lay of the land, whatever the answer actually is. [00:06:33] Speaker 04: Okay. [00:06:34] Speaker 04: To move along, and importantly for this court's holding, the land case that recently came out, [00:06:44] Speaker 04: indicates that the court should, or really supports the proposition that we are making in our pleadings, that the Veterans Court should have asked if VA had knowledge of the NAS report. [00:06:54] Speaker 04: It did. [00:06:56] Speaker 04: Whether the board or VA writ large does, it did. [00:06:58] Speaker 04: It had actual knowledge. [00:07:00] Speaker 04: And then, did that report contain relevant information supporting an indication that Mr. Eusebio's thyroid condition is related to Agent Orange exposure and service? [00:07:10] Speaker 04: A direct relationship is not required, and that's the Veterans Court's legal error here. [00:07:16] Speaker 04: By requiring evidence specific to Mr. Eusebio, the Veterans Court required a stronger connection to place evidence before the board than the law requires to trigger a medical opinion. [00:07:24] Speaker 01: Can I just, can you start kind of at the foundation, which is why is any constructive possession doctrine permissible under the statute? [00:07:40] Speaker 04: Because under the statute, under the board statute or under the court statute? [00:07:50] Speaker 01: Well, I guess there are sort of two, at least a number of statutory provisions. [00:07:54] Speaker 01: The one the government starts with is 7252 and 7261, which is the Veterans Court review statute about limiting its decision to the record for the secretary and the board. [00:08:11] Speaker 01: I think that's probably the primary argument that the government makes, and the record is the actual record the argument goes, not things that were not put before the board. [00:08:27] Speaker 01: Right. [00:08:28] Speaker 04: And that, Your Honor, is I read the Secretary's argument [00:08:34] Speaker 04: there to say, essentially, what they've been arguing for many years, which is that the record is only what is obtained in the claims file. [00:08:40] Speaker 04: And Bell dispensed with that at the very early stages of judicial review. [00:08:46] Speaker 04: And then many cases came down interpreting the statute. [00:08:50] Speaker 01: And so it is... Just to... Bell is a Veterans Court case, not a case from us, right? [00:08:55] Speaker 04: It is, Your Honor. [00:08:56] Speaker 04: In the Lang case, this court [00:09:00] Speaker 04: did rely on Bell. [00:09:02] Speaker 04: And so I would also rely on Lang. [00:09:04] Speaker 04: I would also rely, as we did in our pleadings, on the Gould's case for what is relevant. [00:09:11] Speaker 04: And so relevant evidence does come in. [00:09:14] Speaker 04: And it's not related just, it doesn't have to just be in the four corners of the claims file, as the secretary asserts. [00:09:21] Speaker 04: And that is supported by 7252. [00:09:26] Speaker 04: Again, this court really [00:09:30] Speaker 04: required a direct relationship, which is a pre-adjudication kind of standard. [00:09:37] Speaker 04: Mr. Eusebio, importantly, was not trying to establish his entitlement to benefits before the CAVC. [00:09:43] Speaker 04: He's seeking an examination as a threshold matter and asking that his ability to get that exam based on all the evidence the board knew about and VA knows about. [00:09:51] Speaker 04: To paraphrase this court in McGee, the NAS report is not applicable to Mr. Eusebio's case because it is dispositive. [00:10:00] Speaker 04: It is applicable because it is relevant. [00:10:04] Speaker 00: Are you saying that the medical examination and his desire for medical examination is part of what the agency was required to do under the duty to assist? [00:10:21] Speaker 00: Yes, Your Honor. [00:10:25] Speaker 00: Okay, go ahead. [00:10:26] Speaker 00: I cut you off. [00:10:27] Speaker 00: You can finish what you were saying. [00:10:29] Speaker 04: No, and I do have a... No, I can reserve the rest of my time for rebuttal. [00:10:35] Speaker 04: Thank you, Your Honors. [00:10:36] Speaker 00: Okay. [00:10:39] Speaker 00: Okay, let's hear from Mr. Hockey. [00:10:42] Speaker 02: May I please the court? [00:10:45] Speaker 02: Before I begin my presentation, I just want to address the points that Mr. Stolls just made in order. [00:10:51] Speaker 02: Number one, his point about whether or not this particular report was before this board. [00:10:57] Speaker 02: The answer to that is no, and it's clear on Appendix 8, where the court identifies that, quote, the appellant does not assert nor does the record reflect that he submitted the 2014 update to the board or requested that the board consider it in relation to his claim. [00:11:13] Speaker 02: The passage that we discussed with respect to the dissent refers to the board writ large. [00:11:19] Speaker 02: And that goes to, I can't remember if Judge Wallach or Judge Trano's point, that here, the VA [00:11:27] Speaker 02: Conceded that the you know board at writ large in other words there were folks in the board that had seen had maybe had some Exposed to this report, but but there was no evidence on this record that the particular board judge here did and in fact Had that been the case I would have thought that they would have remanded under the first prong of the Bell rule which is premised on whether or not an actual submission was made because of indeed a [00:11:54] Speaker 02: the board had possession of it or had then provided the report under bell one, its failure to be included in the record on appeal would have been resolved by a remand back to the board for clarification. [00:12:10] Speaker 02: So that's the answer to number one. [00:12:14] Speaker 02: This is Judge Wallach. [00:12:15] Speaker 02: Yes, Judge Wallach. [00:12:17] Speaker 03: Wouldn't any competent board member be aware of it? [00:12:21] Speaker 02: I mean, I obviously can't respond to that. [00:12:25] Speaker 02: It's a 2014 report. [00:12:27] Speaker 02: It is currently being reviewed by folks within VA who are charged with looking at that kind of information to determine whether changes need to be made to the presumptive regulations for exposure to Agent Orange. [00:12:42] Speaker 02: Those are not the board judges. [00:12:44] Speaker 02: So generally, it's outside their bailiwick. [00:12:47] Speaker 02: So the only way any board judge, I think, [00:12:49] Speaker 02: would necessarily become aware of it as if somebody raised it to them. [00:12:54] Speaker 00: Wait, wait. [00:12:55] Speaker 00: This board, their whole job is analysis of veterans' claims. [00:13:00] Speaker 00: And this report has not only been with the agency, but it has been the subject of much litigation, as has all of the Agent Orange issues. [00:13:12] Speaker 00: I mean, how could it be that someone whose job is to analyze veterans' claims wouldn't know? [00:13:21] Speaker 02: Your Honor, again, this is a report from 2014. [00:13:23] Speaker 02: The board has this case, I believe, in 2017. [00:13:28] Speaker 01: The report is not... Just to be clear, I thought the 2014 report didn't come out until 2016. [00:13:34] Speaker 01: Oh, I'm sorry. [00:13:36] Speaker 01: You're right. [00:13:36] Speaker 02: It may have come out in 2016. [00:13:38] Speaker 02: But the point, Judge O'Malley, is that report is not designed to inform board judges. [00:13:46] Speaker 02: It's designed to inform [00:13:47] Speaker 02: agency regulation people. [00:13:50] Speaker 02: The other side of the, if you will, rulemaking or the distinction between rulemaking people who do not, they're not board judges and the board side of the House who are adjudicators of individual claims. [00:14:03] Speaker 02: So there's no requirement, there's frankly no system really in place outside the purple book. [00:14:12] Speaker 02: Now the purple book is a method by which [00:14:15] Speaker 02: folks in the board are advised of things. [00:14:18] Speaker 02: But in this case, the purple book that's been submitted to the court came out after the board decision. [00:14:24] Speaker 02: So I mean, that's what the Veterans Court noted, too. [00:14:26] Speaker 02: You can't look at a purple book entry that post-dates the board decision to say that the board wasn't aware of the purple book. [00:14:35] Speaker 00: But the rule that you're proposing is not simply one that says, well, maybe if this comprehensive report didn't [00:14:44] Speaker 00: get there in time for this particular board to analyze it, that we shouldn't find that it was in their constructive possession. [00:14:52] Speaker 00: The rule that you're proposing is that these kinds of things would never be in the board's constructive possession. [00:14:59] Speaker 00: So that even if the agency and the board had reviewed these things multiple times in the past, that you can't say that this particular board had constructive possession of it, right? [00:15:14] Speaker 02: Well, there's a couple of ways I need to answer that, Your Honor, frankly. [00:15:18] Speaker 02: Yeah, that would have been an argument we would make, and did make, in our red brief, and that we do believe is with respect to these non-claim documents. [00:15:27] Speaker 02: Remember, the Bellinist progeny really relate to claim documents, not sort of medical treaties or analyses of other things. [00:15:37] Speaker 02: And over the years, the Ductions Court has dealt with attempts [00:15:42] Speaker 02: to impose knowledge or possess constructive receipt, if you will, of these sort of non-claim specific documents on the VA. [00:15:51] Speaker 02: But the way they've handled that is through application of the standard that was articulated by Bell and over the years applied by the Veterans Court, and most recently by this court in Lange. [00:16:05] Speaker 02: So that's the sort of history of what we're dealing with here. [00:16:11] Speaker 00: So are you saying that you could never have a, when you call them non-claim documents, I assume you mean that don't relate to either medical history or his precise service, that you could never have a non-claim document that would be relevant? [00:16:31] Speaker 02: That would be, that wasn't submitted or, [00:16:36] Speaker 02: Or was the board or RO was made aware of? [00:16:39] Speaker 02: And the basis of that is 5103 A, the duty to assist provision. [00:16:45] Speaker 00: Now you're saying the RO wasn't made aware of it. [00:16:47] Speaker 00: So you're telling me that ROs don't know about this report? [00:16:50] Speaker 02: Well, yeah, I would think that I would speculate that ROs probably don't know. [00:16:58] Speaker 02: In fact, I would speculate that of the two types of reviews, the board might be more likely to know. [00:17:04] Speaker 02: But the point is in 5103A, if you look through the various subsections that... And remember, 5103A came after Bell. [00:17:13] Speaker 02: They set forth the requirements that the VA has for obtaining documents. [00:17:18] Speaker 02: And those requirements are conditioned on being made aware of the documents. [00:17:22] Speaker 02: And that's what Congress says plainly in those statutes that the VA will gather relevant documents that they're made aware of. [00:17:30] Speaker 02: And that even extends, frankly, to the claim documents [00:17:33] Speaker 00: You know, that aren't really... Doesn't 5103A say that the examples aren't limiting there? [00:17:40] Speaker 02: I'm referring simply to the plain language of the instruction Congress imposed on the VA, which says, we will, VA, go out and get documents that the claimant makes you aware of. [00:17:52] Speaker 02: Now, I actually have more to say to finish this question, because how it fits in with your question is, [00:18:01] Speaker 02: Well, are there any exceptions that VA itself recognizes as opposed to the Veterans Court? [00:18:06] Speaker 02: And the one exception is the court noted in the Lang opinion is the 1995 general counsel opinion. [00:18:14] Speaker 02: For purposes of Q, VA recognized basically the underpinnings of Bell and said, we will, for purposes of Q's concern about what the facts were [00:18:28] Speaker 02: at the time, as the court may recall, the Russell language that was adopted in the legislative history of the Q statutes, and which we, in this court, I think several times, including in the Cook case, articulated as being the standard for Q. And also in the Pierce case, you look to the record at the time, and that's what the general counsel opinion in 1995 was geared toward was, well, what happens if you come in in a Q claim and you identify a document clearly should have been in a record? [00:18:58] Speaker 02: a medical document created it around the time. [00:19:00] Speaker 02: And for whatever reason, it either wasn't in the claims file, but should have been, or it was in the claims file, and the adjudicator just missed it. [00:19:07] Speaker 02: And that's what the general counsel opinion identifies is, well, for those documents, we're going to consider them to be a part of the claims file. [00:19:15] Speaker 02: So therefore, at least providing folks with an argument of cue, not necessarily, you still have to meet the other hurdles of cue, but an argument of cue. [00:19:22] Speaker 02: So that's the sort of scope that the VA has allowed for itself with respect to these documents. [00:19:27] Speaker 02: that weren't in the claims file. [00:19:29] Speaker 02: The VA has never understood. [00:19:30] Speaker 02: I'm sorry, was there a question? [00:19:33] Speaker 03: I actually have several questions, Mr. Hockey, since you paused for breath. [00:19:39] Speaker 02: Mistake. [00:19:40] Speaker 02: That was my bad, I guess. [00:19:43] Speaker 03: Yes, indeed. [00:19:45] Speaker 03: First one is a little housekeeping question. [00:19:49] Speaker 03: In your red brief on page 21, what does footnote 9 say? [00:19:59] Speaker 02: Oh. [00:20:01] Speaker 03: Yeah, that's... Was that a concession in that wisdom? [00:20:06] Speaker 02: You know that recent Casper the Friendly Ghost commercial that Geico's using? [00:20:14] Speaker 03: Good answer. [00:20:16] Speaker 02: That's all I have. [00:20:18] Speaker 03: Are you familiar with Lang V. Wilkie? [00:20:25] Speaker 02: So I'm definitely familiar with Langsie Wilkie, and I'm prepared to talk about it at length. [00:20:31] Speaker 03: Good. [00:20:32] Speaker 03: How does your argument square with the Veterans Court's authority to take judicial notice of adjudicative and legislative facts? [00:20:42] Speaker 03: What happens if they're intervening facts? [00:20:45] Speaker 03: Does the court have to rest on a legal fiction and ignore those things? [00:20:49] Speaker 02: Oh, no, well. [00:20:52] Speaker 03: Those are my Langs. [00:20:54] Speaker 02: So I don't see Lang, well, I guess I'm not fully prepared to discuss Lang, I guess, to the extent that I thought Lang focused on the constructive receipt doctrine itself and didn't deal with what I think I understand your question, Judge Wallach, to be more of a judicial notice thing, which in our brief, our position is that adjudicative facts are not the kinds of things that judges take judicial notice of, rather it is the more [00:21:23] Speaker 02: broader facts of which these facts are not included. [00:21:28] Speaker 02: They might be someday if there was a regulation issued pursuant to the report, but at this stage there isn't. [00:21:35] Speaker 02: Although one could take advantage and look at the regulation and find that the disability here is not included, and frankly it isn't. [00:21:42] Speaker 02: That's why we're talking about direct service connection. [00:21:45] Speaker 02: My discussion of Lengue is going to be a little different and focus on this, where I started just now with my answers to Judge O'Malley's questions with [00:21:53] Speaker 02: with Bell and its progeny. [00:21:58] Speaker 02: Keep going. [00:21:59] Speaker 02: So I know it's a long week, and we're the last ones. [00:22:02] Speaker 02: But the more I read Lange, I frankly think the more Lange addresses pretty much this case. [00:22:11] Speaker 02: We clearly are not pleased with the fact that Bell exists, although we have accepted a portion of it, as I just articulated. [00:22:20] Speaker 02: The portion we don't like about Bell, obviously, as the way the Veterans Court on occasion has used the Bell standard, and let me be clear, that standard really has never changed. [00:22:33] Speaker 02: More recently, some panels from the Veterans Court have described it as, as Mr. Stolls mentioned, the direct evidence or direct connection standard, but that's a label. [00:22:44] Speaker 02: The standard has always been as Judge O'Malley articulates in the Lang decision, I'm sorry, the court articulates in the Lang decision whether there's a reasonable relation, a reasonable expectation that something would have been part of the veteran's claim. [00:22:59] Speaker 02: That's the language from Bell and it's been adopted by all the courts that have applied Bell over the years. [00:23:06] Speaker 02: And when it comes to some of these documents that are not actual claims documents, [00:23:12] Speaker 02: the standards has still been applied and with a sort of conclusory language about, well, this document or that document is too tenuous because it doesn't necessarily reflect anything particular about the claimant or his claim. [00:23:27] Speaker 02: So those are all relevancy terms, is my point here. [00:23:32] Speaker 00: And so beginning from the 1992 bill... But are we supposed to... At what point is that relevancy supposed to be assessed? [00:23:39] Speaker 00: I mean, at this point, there's [00:23:41] Speaker 00: If we're just looking at this document, there's clear discussion of thyroid homeostasis and Agent Orange. [00:23:51] Speaker 00: Now, to what extent that would apply to these particular nodules, I don't think is something we should be assessing. [00:23:59] Speaker 00: We should simply be saying, could this assist in convincing the board that he was entitled to [00:24:11] Speaker 00: at least a medical exam. [00:24:13] Speaker 02: So, well, the last part of it I'll have to answer separately. [00:24:18] Speaker 02: But the first part of it, Your Honor, is exactly the question that the Veterans Court posed to itself. [00:24:24] Speaker 02: And in fact, they are the body that should be doing that, as this Court suggests in footnote four and Lang. [00:24:29] Speaker 02: They looked at this document and concluded that it did not come that close enough such that there was an error. [00:24:36] Speaker 02: They should consider that the Board erred in not considering it when it was never brought to the Board detention. [00:24:40] Speaker 02: That was the exact analysis that the Veterans Court performs in this case, as it did in Monzingo, as it did in Bowie, as it did in Goodwin. [00:24:48] Speaker 02: Our position would be this court is not in a position to step into the shoes of the Veterans Court and determine whether this particular document satisfies that standard. [00:24:58] Speaker 02: Our position would be, assuming that Bell applies altogether, and I'll get to that point in a minute, our position would be this court would simply determine whether the standard used, in other words, whether there was [00:25:11] Speaker 02: it could be reasonably expected to be connected to the veterans claim, which was the standard used here, was the appropriate standard. [00:25:19] Speaker 02: And of course, the problem I think Mr. Zubio has before this court today is, in August, this court said that very thing in Lange. [00:25:28] Speaker 02: That's the standard that this court said should be applied. [00:25:30] Speaker 02: And looking at the decision at issue here, that is exactly the standard that was applied in this case. [00:25:36] Speaker 00: So would you suggest that [00:25:40] Speaker 00: that a decision should say Manzingo doesn't really create a direct relationship claim. [00:25:48] Speaker 00: It's simply just phrasing reasonableness in a probably too narrow way. [00:25:55] Speaker 02: Well, Manzingo didn't articulate the, used the word direct. [00:26:04] Speaker 02: In fact, I think Manzingo may have quoted one of the earlier cases, whether it was Bowie or Goodwin, [00:26:09] Speaker 02: just where there was a direct relationship. [00:26:12] Speaker 02: And yes, that's a useful tool, a useful way to describe the analysis. [00:26:17] Speaker 02: In other words, what they were addressing in Manzingo and what they addressed in Bowie were these documents that had nothing to do with a particular claimant. [00:26:24] Speaker 00: But in Bowie, that's the problem. [00:26:25] Speaker 00: Bowie was a document that applied to a different claimant as opposed to a document that essentially addresses [00:26:35] Speaker 00: everyone who was in Vietnam or exposed to Agent Orange or waters that were contaminated with Agent Orange, right? [00:26:43] Speaker 00: Isn't that different than Bowie? [00:26:45] Speaker 02: Well, I apologize. [00:26:48] Speaker 02: Goodwin was the one with the different claimant. [00:26:51] Speaker 02: But Bowie had to do with the NIOSH report. [00:26:53] Speaker 02: But both of them proceed along the same line as Bellamonzingo. [00:26:59] Speaker 02: The part of Turner that this court left in place in Lang and in this case, [00:27:04] Speaker 02: And that is this question of whether or not there was too tenuous a relationship between what was in the document and what was before the board presented by the claimant. [00:27:15] Speaker 02: And in all of those cases, and that's where the too tenuous language comes up in BOE, and it's basically been used ever since by all of these folks, simply to describe that they've looked at the evidence, they've determined that the evidence is too tenuous to say that the board erred in not considering it when it wasn't presented to the board, [00:27:34] Speaker 02: Frankly, 5103A would normally require to trigger any kind of failure on the part of the board under that statute. [00:27:43] Speaker 02: So that's that whole thing. [00:27:45] Speaker 02: To deal with the medical evidence thing, the medical evidence argument here is really a cart horse argument because the part of 5103A that imposes a requirement on VA to consider ordering, remember, 5103A only requires the [00:28:03] Speaker 02: VA to consider. [00:28:04] Speaker 02: There's no right to a medical exam under 5103A. [00:28:06] Speaker 02: There was a huge point of contention in the buildup to that statute, and Congress resolved it by basically saying, VA, you must consider it in certain circumstances. [00:28:16] Speaker 02: But the plain language of 5103A says that that consideration is premised on the record. [00:28:23] Speaker 02: And what we're discussing here today is not the determination to order a medical opinion. [00:28:27] Speaker 02: What we're discussing is what should be in the record. [00:28:30] Speaker 02: And the argument that we should focus on, well, it could be a medical exam, is simply an attempt to take what Mr. Zubio believes is a lesser standard with related to medical exams and move it up into the question that we're really facing here, which is what's the requirement for including documents? [00:28:47] Speaker 02: And that's a relevancy requirement. [00:28:49] Speaker 02: Plainly incorporated. [00:28:50] Speaker 01: Mr. Hockey, this is Judge Toronto. [00:28:53] Speaker 01: If you're asking the question whether a particular [00:28:59] Speaker 01: document that's not in the record here, the 2014 update, is too tenuous in its relation to what's going on in the claim before the agency. [00:29:15] Speaker 01: Might not the answer actually depend on whether you're talking about tenuous in relation to the merits of the claim or tenuous in relation to [00:29:27] Speaker 01: the 5103A right to secure a government furnished medical exam. [00:29:36] Speaker 01: Why would you exclude the latter? [00:29:38] Speaker 02: Well, first of all, there is no right, as I said, under 5103A. [00:29:42] Speaker 02: You have a right to have that considered. [00:29:44] Speaker 01: But the plain language of that... Right, but since consideration can be... Since the agency or the board can abuse its discretion [00:29:56] Speaker 01: in how it undertakes that or concludes that consideration, there is a right in there that can sometimes be reversed, enforced by reversal by the Veterans Court. [00:30:10] Speaker 02: Yes, but the language that Congress imposes on the Secretary is that that decision that you're discussing, whether or not there should be a medical exam order, is premised on the record, right? [00:30:22] Speaker 01: Right, but I thought we were already beyond this record point once one accepts this whole del line of cases up through, you know, our case in Lange. [00:30:34] Speaker 02: Well, no, I don't think so. [00:30:35] Speaker 02: I think the whole, I mean, I thought the point of our discussion here was what is the right standard? [00:30:41] Speaker 02: That's the argument raised in the blue brief. [00:30:43] Speaker 02: They try to argue, I mean, I guess they concede that there's a relevancy standard, but they don't really articulate what it is. [00:30:49] Speaker 02: Our position is [00:30:50] Speaker 02: I think that the standard as articulated by the veterans court in the six or so series of cases that this court went through in Lange and including in Lange, the reasonably related standard is the appropriate standard. [00:31:04] Speaker 02: The fact that, and my focus more recently in our discussion here on two tenuous is [00:31:12] Speaker 01: the sort of the conclusion that you know but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but but [00:31:42] Speaker 01: a beneficial result for the claim? [00:31:46] Speaker 02: Well, I appreciate that. [00:31:50] Speaker 02: I'm going to stick to my gun here and say, I think we need to proceed logically through this process. [00:31:56] Speaker 02: And one of the reasons I say that is because Judge Shronoff, if you accept your reading, then you've just read basically the relevancy part of the only thing that's imposed on VA under 5103A out of the statute. [00:32:11] Speaker 01: The record part or the relevancy part? [00:32:16] Speaker 02: The relevancy, because why wouldn't every veteran who's trying to seek a finding of constructive receipt say yes, because this could obviously lead to a medical opinion? [00:32:27] Speaker 00: Well, it depends on what it is. [00:32:30] Speaker 00: I mean, if you've got a knee claim, then this report is not going to be relevant. [00:32:37] Speaker 02: Well, yeah, but you wouldn't be asking for, you would be asking for some sort of like treaties report on knee claims or treaties. [00:32:45] Speaker 02: I mean, I understand that distinction, but the point is here, what we're talking about, we're not limiting, I don't believe, at least it's not my intention to limit our discussion here to this particular report on Agent Orange. [00:32:59] Speaker 02: I'm talking generally, this court issues a remand order in this case, then it would seem to be applicable to any sort of [00:33:07] Speaker 02: treaties type evidence, which is the one thing that the Bell and its project and the Investors Court has constantly been trying to address. [00:33:17] Speaker 02: If you go back and look at all those decisions, there's discussions in many of those cases, including Manzingo and including Bowie, about the concern of the administrative burden one would be placing on the board to find that a basis of error could be premised on [00:33:34] Speaker 02: the board not being aware of some treaties or similar type discussion that was never raised or presented to the board. [00:33:43] Speaker 02: We've been working really hard. [00:33:45] Speaker 00: This morning's starting to feel like the never-ending election cycle, but I think we're going to have to quit and let Mr. Stolls do the rebuttal. [00:33:55] Speaker 00: But I think your point's well made. [00:33:57] Speaker 00: We've got that in your briefing. [00:33:59] Speaker 00: Thank you. [00:34:00] Speaker 02: Thank you. [00:34:01] Speaker 00: Mr. Stolls, we went way over with Mr. Hockey, and so I will give you up to an extra three minutes, but don't feel the need to use it if you don't want to. [00:34:12] Speaker 04: I'll try not to, Your Honor. [00:34:13] Speaker 04: I just want to start by saying I am heartened by Mr. Hockey's presentation, because the daylight between us is not as far as the initial secretary's brief had me believing coming into this oral argument. [00:34:26] Speaker 04: It does appear that we agree that this direct relationship test [00:34:31] Speaker 04: is no good that the CAVC used. [00:34:33] Speaker 04: And so I would just say that if the NAS report, which was before the Department of Veterans Affairs, if it contains relevant information supporting an indication that Mr. Yusebius thyroid condition is related to Agent Orange exposure in service, then this case needs to be remanded back to the CAVC. [00:34:51] Speaker 04: Thank you, Your Honors. [00:34:53] Speaker 00: Thank you. [00:34:56] Speaker 00: All right, the case will be taken under advisement. [00:35:00] Speaker 00: This Court is adjourned. [00:35:03] Speaker 00: The Honorable Court is adjourned from day to day.