[00:00:02] Speaker 02: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 02: God save the United States and this honorable court. [00:00:12] Speaker 05: Good morning, ladies and gentlemen. [00:00:15] Speaker 05: We have two cases consolidated, 19-1916, George versus Wilkie, and 20-1134, Martin versus Wilkie. [00:00:27] Speaker 05: Mr. Kopperder, good morning. [00:00:30] Speaker 00: Thank you very much. [00:00:31] Speaker 00: Thank you very much, Your Honor. [00:00:32] Speaker 00: May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Kevin George. [00:00:37] Speaker 00: The error of the Veterans Court in this case was its reliance upon this Court's decision in Jordan. [00:00:44] Speaker 00: Although this Court's decision in Jordan was based upon a change in law, this Court's decision in Jordan does not apply. [00:00:52] Speaker 00: This Court's decision in Wagner controls, and there was no change in law as a result of this Court's decision in Wagner. [00:01:00] Speaker 05: Mr. Coppola, what about DAV? [00:01:07] Speaker 00: DAV does not apply either, Your Honor, because the Wagner case does not represent a change in law. [00:01:14] Speaker 00: The Jordan case does represent a case of a change in law. [00:01:19] Speaker 00: And if Mr. George's allegation of Q would have been based upon the Jordan case, then both DAV and Jordan would apply. [00:01:30] Speaker 00: since Mr. George's allegation was based solely upon the statute and this court's interpretation of that statute in Wagner, neither DAV nor Jordan applies. [00:01:43] Speaker 01: Mr. Carpenter? [00:01:45] Speaker 01: Yes, sir. [00:01:47] Speaker 01: So as I take it, I think your position is that the statute on its face said what it said and that it was such a clear [00:01:59] Speaker 01: understanding of the law that it was the true state of the law at the time of the initial decision. [00:02:06] Speaker 01: Do I understand that correctly? [00:02:09] Speaker 00: Yes. [00:02:09] Speaker 00: Yes, Your Honor, you do. [00:02:13] Speaker 01: Okay. [00:02:13] Speaker 01: What about the existence of the VA regulation that had the later found incorrect interpretation in it? [00:02:22] Speaker 01: What do we do with that? [00:02:25] Speaker 00: Well, your honor, I think you simply recognize it for what it is, as this court did in Jordan. [00:02:30] Speaker 00: This court recognized that the VA's general counsel had corrected the mistake in interpretation made by the secretary when he promulgated that regulation. [00:02:43] Speaker 00: He issued a presidential opinion, which invalidated that regulation because the secretary's interpretation [00:02:51] Speaker 00: was in direct conflict with the plain and unambiguous language of 38 USC section 1111, formally 311, because the secretary's regulation only required that one of the two prongs of the statute be applied. [00:03:07] Speaker 00: And that was clearly a mistaken interpretation. [00:03:11] Speaker 00: Wagner on the other side. [00:03:14] Speaker 01: That's all right. [00:03:15] Speaker 01: How do I, in future cases, [00:03:19] Speaker 01: know when this rule would apply. [00:03:22] Speaker 01: How do I know that the interpretation that was given by the VA was so wrong, you know, so as to make it so it wasn't the true state of the law at the time of the initial decision such that Q would apply in future decisions? [00:03:42] Speaker 01: It seems like I'm concerned there's a slippery slope there in knowing when this would apply. [00:03:48] Speaker 00: I can appreciate that, Your Honor. [00:03:51] Speaker 00: I would say that it is a question of an analysis of what it was that the statute said. [00:04:00] Speaker 00: And if the statute was, as this statute is, so unquestionably plain on its face that there were two specific requirements imposed by Congress upon the Secretary [00:04:16] Speaker 00: before the presumption of soundness could be rebutted, then the interpretation or the plain language of the statute controls and supersedes any interpretation that would have been made by the secretary to the contrary. [00:04:34] Speaker 00: But I would also suggest, Your Honor, that your concern is [00:04:39] Speaker 00: I don't want to say unfounded, but less likely to come up in the future simply because the facts of this case are such that we have a judicial interpretation by this court in Wagner of what the statute always meant. [00:05:00] Speaker 04: Mr. Carpenter, just getting back to your understanding of Jordan, [00:05:09] Speaker 04: In Jordan, our court said that now invalidated regulation 3.304 was the first commentary on section 1111. [00:05:21] Speaker 04: And in fact, it was, quote unquote, the initial interpretation of section 1111. [00:05:27] Speaker 04: And so therefore, our court treated that regulation as an official interpretation. [00:05:39] Speaker 04: that was then later changed by the VA general counsel presidential opinion. [00:05:44] Speaker 04: And so therefore, in fact, what we were looking at in that case was a change in interpretation of the law that resulted in denying Mr. Jordan a cue claim in that instance because changes in interpretation of law are outside the scope of what can be considered a valid cue claim. [00:06:10] Speaker 04: So in that sense, I don't think we can necessarily go along with you here on your understanding of Section 1111 being so plain on its face that there never really was an interpretation in the first instance, given that our court in Jordan already said there was in fact a quote unquote initial interpretation of Section 1111 as represented by Regulation 3.304. [00:06:40] Speaker 00: Your Honor, I agree with everything that you said. [00:06:42] Speaker 00: I simply differentiate that the interpretation that was made by the Secretary in his regulation was the first interpretation of that statute by the Secretary. [00:07:00] Speaker 00: And that implicated the change in law provisions of the statute and [00:07:09] Speaker 00: that was the regulation for VAQ rather than BVAQ, which was discussed in DAV and then was found to be a valid regulation based upon that change in law language. [00:07:26] Speaker 04: The question here... I'm sorry, Mr. Carpenter, I didn't quite follow what you said and I want to make sure I do understand what you're saying. [00:07:35] Speaker 04: Are you saying that [00:07:37] Speaker 04: there's some kind of substantive distinction in how the Q claim regulation for the VA operates compared to the Q claim regulation for the BVA? [00:07:52] Speaker 00: No, Your Honor, I'm sorry. [00:07:53] Speaker 04: Because the words are the same. [00:07:55] Speaker 00: Oh, yes, they are, Your Honor, and they are to be applied the same way. [00:08:00] Speaker 00: What I am saying is that the prohibition that exists in those two regulations [00:08:07] Speaker 00: about change in law applies when you attempt to make an allegation of Q, as was done in Jordan, based upon that change in law. [00:08:20] Speaker 00: That is not what Mr. George's allegation of Q was, nor can it be imputed to have been as the Veterans Court did. [00:08:30] Speaker 00: Mr. George's allegation of Q was based solely upon the failure of the board in 1977 to have correctly applied the statute. [00:08:46] Speaker 05: You can finish your answer, Mr. Carpenter. [00:08:49] Speaker 00: Actually, I had, Your Honor, and I was about to say I'd like to reserve the balance of my time. [00:08:55] Speaker 05: We will save it for you, Ms. [00:08:57] Speaker 05: Odom. [00:09:00] Speaker 03: Thank you, Your Honor, and may it please the Court. [00:09:02] Speaker 03: To pick up where Mr. Carpenter left off, to understand what a change of law is for purposes of Q, it's important, or a change in interpretation of law, it's important to read that term in context of what is Q. And Q is an undebatable error. [00:09:23] Speaker 03: And here, there's no dispute that [00:09:26] Speaker 03: In 1970, when the secretary decided Mr. Martin's case, the RO had cut off, severed, an entire portion of the statute that required clear and unmistakable evidence of aggravation. [00:09:39] Speaker 03: It cannot be debatable that that was an error. [00:09:43] Speaker 03: And in fact, the government is not debating that here. [00:09:46] Speaker 03: So when you're thinking about a change in interpretation of law, you have to see it in context of what is the cue. [00:09:53] Speaker 03: The statute or reg is ambiguous. [00:09:56] Speaker 03: and later it's interpreted in a way that is inconsistent with VA's application of it, it can't be undebatable that VA's otherwise reasonable application of the law or regulation of the statute was error. [00:10:09] Speaker 03: But when here, the statute is absolutely clear and the secretary lobs off half of that statute, there can't be any debate that the failure to apply Congress has clearly expressed will with error. [00:10:23] Speaker 03: So change in interpretation of law can't be a decision where the court simply restates what is already clear from the text of the statute as it did here in Wagner. [00:10:31] Speaker 03: This is really consistent, actually, with the regulatory language indicating that an otherwise correct application of the statute is in queue when there's a later change in interpretation. [00:10:44] Speaker 03: There's no debate here that there wasn't an otherwise correct application of the statute. [00:10:50] Speaker 04: This is Judge Chun. [00:10:52] Speaker 04: This is Judge Chun. [00:10:54] Speaker 04: The concern I have is in Jordan, we were dealing with the very same statute that we're dealing with here, Section 1111, the presumption of soundness. [00:11:07] Speaker 04: And in that case, we did not make any fine distinctions between really bad interpretations of the statute and then [00:11:19] Speaker 04: fair but ultimately deemed incorrect interpretations of the statute. [00:11:25] Speaker 04: All we said there was that regulation that the VA had initially promulgated was, in fact, an initial interpretation of the statute, Section 1111. [00:11:36] Speaker 04: And so, therefore, what we had in that case, and as we have in this case, is we're looking at a change in interpretation of that statute. [00:11:48] Speaker 04: In Jordan, we said you cannot get a Q through that change in interpretation. [00:11:56] Speaker 04: And in fact, as I understand the regulation for Q dating back to way prior to the codification of Q by Congress, it had always excluded from Q a change in interpretation of the law. [00:12:14] Speaker 04: And in Jordan, we've already said that [00:12:16] Speaker 04: what happened with respect to this presumption of soundness, there wasn't a change in interpretation. [00:12:25] Speaker 04: So I don't know how we can get to where you want to get to under these circumstances. [00:12:34] Speaker 03: Your Honor, I think that my response is two-part. [00:12:38] Speaker 03: First, I would respectfully disagree with the characterization of what happened in Jordan. [00:12:43] Speaker 03: Jordan really wasn't about what happened in 1111. [00:12:47] Speaker 03: Jordan was solely about what happened with the regulation itself. [00:12:51] Speaker 03: The only issue, the only allegation of Q in that case was that the regulation, once VA invalidated it, that invalidation was retrospective. [00:13:01] Speaker 03: the court in Jordan didn't pass at all on what 1111, not the regulation, but 1111 required back then. [00:13:09] Speaker 03: In Patrick, the non-published decision in Patrick, this court made that distinction and found it to be crucial, and that's what's crucial in this case as well. [00:13:22] Speaker 03: Secondly, moving on to the language of 3.105 prior to statutory codification, that is the language that says that [00:13:32] Speaker 03: Q isn't a change in interpretation, but as I was saying previously, that has to be read in context of what is Q. And Q is an undebatable error. [00:13:46] Speaker 03: An error can't be debatable where maybe the statute is regular, excuse me, the statute or regulation is ambiguous or unclear and somehow, but it's absolutely undebatable here. [00:14:01] Speaker 03: where the VA just ignored the second half of the statute. [00:14:05] Speaker 03: And in fact, if you look at the rating decision at issue here, it's clear that they didn't apply the statute at all. [00:14:11] Speaker 03: They required evidence of establishing in-service aggregation, which is not required under 1111. [00:14:20] Speaker 03: Had they applied 1111 in 1970, they would have granted Mr. Martin's claim. [00:14:28] Speaker 01: This is Judge Stoll. [00:14:30] Speaker 01: I hear what you're arguing. [00:14:32] Speaker 01: I want to just take you to a slightly different place, if you don't mind. [00:14:36] Speaker 01: Section 711 was created by Congress in order to create Q. And at the time, there was a regulation in place, which was 3.105. [00:14:52] Speaker 01: And the 1996 version had language in the preamble about [00:14:57] Speaker 01: that cue not being applicable where there was a change in law or a Department of Veterans Affairs issue, and then it referred to Section 3.114. [00:15:09] Speaker 01: What is the import of the reference to Section 3.114 in that language? [00:15:17] Speaker 03: Well, Your Honor, my understanding of 3.114 is that a change of law or VA issue is an actual substantive change in the law. [00:15:26] Speaker 03: And 3.114 only applies when there's an actual substantive change that is significant enough to create a new cause of action. [00:15:33] Speaker 03: It creates a new entitlement to benefits. [00:15:36] Speaker 03: And that's clearly not what happened here. [00:15:38] Speaker 03: 1111 has not changed. [00:15:41] Speaker 03: And Wagner's interpretation of it, although in our opinion is not entirely relevant to the analysis here, only stated what 1111, only restated the law. [00:15:54] Speaker 03: at the time, which was 1111. [00:15:56] Speaker 03: Wagner didn't create any new entitlement to benefits. [00:16:01] Speaker 03: So I think that the language that you point to Judge Stoll referencing 3.114 is also good support for our position that this wasn't a change in interpretation of law, even as VA understands an interpretation of law, what an interpretation of law means. [00:16:24] Speaker 01: something else, which is that, I mean, as we all know, you know, Q is different than other areas in the law in that it provides for a collateral attack on a final judgment. [00:16:34] Speaker 01: It's really rare to find that. [00:16:36] Speaker 01: So when Congress passes a law that says that it's going to allow for collateral attack of a final judgment, shouldn't we look for Congress to expressly said that that includes where an interpretation [00:16:51] Speaker 01: or where the law has changed. [00:16:53] Speaker 01: I mean, normally, you know, under Supreme Court precedent, when the law changes, it's only going to apply to cases that are still pending. [00:17:02] Speaker 01: It won't apply to cases where the final judgment has been entered. [00:17:07] Speaker 01: So I hope you understand the importance of my question, which is really that should we have to look for express intent from Congress in this situation where it's so different from the typical state of the law? [00:17:23] Speaker 03: No, Your Honor, not in this case, because... Please continue to answer questions. [00:17:30] Speaker 03: Thank you. [00:17:31] Speaker 03: Congress didn't really say much at all about what constitutes Q in 711 or 5109A. [00:17:37] Speaker 03: Instead, it codified what the body of law existing at the time was. [00:17:45] Speaker 03: And that body of law included, for example, the Burger case, where the Veterans Court [00:17:51] Speaker 03: interpreted 3.105 and said that if a regulation or a statute is clear on its face, then that wouldn't be a change of interpretation. [00:18:05] Speaker 03: So I don't think we need to look for explicit intent from Congress here. [00:18:14] Speaker 03: And in terms of retroactive applicability, again, we don't think that Wagner [00:18:21] Speaker 03: Wagner really plays into this analysis at all. [00:18:24] Speaker 03: It's all about the plain language of 1111 or 311 as it existed in 1970. [00:18:29] Speaker 03: But even in a case that wasn't really discussed in the briefing, but T, the Supreme Court said that when the court's precedents require a decision at the time the decision is made, it's not really a change in law. [00:18:40] Speaker 03: Here, 1111 required Wagner to be decided the way that it was. [00:18:45] Speaker 03: So it wasn't, in fact, a change of law. [00:18:47] Speaker 03: Thank you. [00:18:49] Speaker 05: Thank you, Ms. [00:18:50] Speaker 05: Odom. [00:18:50] Speaker 05: We'll save your time. [00:18:52] Speaker 05: Ms. [00:18:52] Speaker 05: Koenig. [00:18:55] Speaker 02: Thank you. [00:18:56] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:18:59] Speaker 02: Appellant's counsel here would have us ignore and or abrogate binding Supreme Court precedent, Federal Circuit precedent, as well as Veterans Court precedent in favor of following the unpublished decision in Patrick, which is in conflict with that binding precedent. [00:19:14] Speaker 02: Now just to pick up where counsel sort of left off in the last argument, the Supreme Court here in, the Supreme Court in Rivers in fighting Harper acknowledged that principles of finality require that when there's been a new judicial pronouncement of law, that that new pronouncement, while it may [00:19:40] Speaker 02: say what the law has always meant, still only applies retroactively to cases that are open on direct review. [00:19:47] Speaker 02: It does not apply to cases which are final. [00:19:49] Speaker 05: Now, that Supreme Court... This is Judge Laurie. [00:19:55] Speaker 05: Didn't I hear Mr. Coppenter and maybe Ms. [00:19:58] Speaker 05: Odom say they're not arguing that there was a change of law? [00:20:03] Speaker 02: Well, they do argue that, Your Honor, but as Judge Tun acknowledged, [00:20:10] Speaker 02: Our case, this court's case in Jordan stated that the regulation 3.304 provided the first commentary and the initial interpretation of section 1111. [00:20:21] Speaker 02: So this court has already stated that there was an initial interpretation and so Wagner's decision on the interpretation of 1111 must be considered a change [00:20:38] Speaker 02: in interpretation in light of Jordan. [00:20:42] Speaker 02: Now, the Supreme Court's decisions on finality were discussed in this court's decision in DAV versus Gover. [00:20:53] Speaker 02: And the court in that case acknowledged that new interpretations of law only have retroactive effect on decisions [00:21:03] Speaker 02: the open and direct review and do not apply in the context of Q. Similarly, the Supreme Court or this court in Jordan has stated that the Supreme Court has repeatedly denied attempts to reopen final decisions in the face of new judicial pronouncements or even in decisions finding statutes unconstitutional. [00:21:32] Speaker 02: The court's decision in, or the appellant's argument here really is an attempt to disrupt the finality of the decisions that were issued in 1970 and 1977 in this case. [00:21:50] Speaker 02: And the court and DAV and Jordan have already addressed all of the issues that the appellants raise here. [00:22:00] Speaker 04: Ms. [00:22:00] Speaker 04: Kinnick, this is Judge Chen. [00:22:02] Speaker 04: Did the government request rehearing or rehearing in bank in the non-presidential Patrick opinion? [00:22:14] Speaker 02: Your Honor, I don't believe that there was a... I guess I'm not sure that there was a request for rehearing or rehearing on bank, but the... [00:22:26] Speaker 02: Council in that case had asked for the decision to be reissued precedentially, and the court had declined to reissue the decision precedentially. [00:22:33] Speaker 02: And I think it's, in reading the Patrick case, it's clear that it's in conflict with this court's decision in both DAV and Jordan, and those cases came first in time. [00:22:47] Speaker 02: And so I would argue that the non-precedential decision in Patrick should not be followed here. [00:22:56] Speaker 02: in favor of following the presidential decision in Jordan. [00:23:03] Speaker 01: I would like to ask you a question. [00:23:08] Speaker 01: Let's just set aside the existence of Jordan for a minute. [00:23:12] Speaker 01: And I want to ask you the same question I asked your opposing counsel, which is [00:23:21] Speaker 01: In the 1996 version of 3.105, what do you think is the import of the reference to Section 3.114 in that preamble? [00:23:39] Speaker 02: Your Honor, the reference to 3.114 appears to be [00:23:51] Speaker 01: regardless of dealing with a specific change in law, but I don't think that the reference to that, to that regulation... So, the section that says that the provisions of this section that is key will not apply where there's a change in law or Department of Veterans Affairs issue, and then it cites 3.114. [00:24:15] Speaker 01: So, you don't think that 3.114 is [00:24:19] Speaker 01: a limiting reference on that language? [00:24:21] Speaker 01: Is that what you're saying? [00:24:23] Speaker 02: I don't, Your Honor. [00:24:24] Speaker 02: And why not? [00:24:26] Speaker 02: Well, because that language was later codified and adopted into the case law and into later versions of the regulation. [00:24:44] Speaker 01: Also, the later law, I'm supposed to read this regulation as it stood in 1996. [00:24:48] Speaker 01: Well, I'm trying to understand what Congress was thinking. [00:24:51] Speaker 01: I'm supposed to think that they also understood how the agency was going to change it. [00:24:56] Speaker 02: Well, Your Honor, I simply don't think that you can read that language in the preamble of 3.105 as it existed in 1996 to only apply in the context of [00:25:09] Speaker 02: the specific situation of 3.114. [00:25:13] Speaker 02: Maybe it's listed as an example, but the language of the regulation of 3.105 doesn't limit its application to that situation from 3.114. [00:25:29] Speaker 02: And I think later regulations, including 20.1403, [00:25:40] Speaker 02: have sort of clarified or reaffirmed that Q is not available where there's been a change in interpretation of the law and must be looked at at the time of the, it must be looked at under the law that was understood at the time of the original decision. [00:25:58] Speaker 02: In this case, [00:26:00] Speaker 02: Regulation 3.304b was a valid binding regulation at the time that the secretary and the board issued the decisions in Martin and in George. [00:26:12] Speaker 02: And that valid binding regulation controls the decisions in those cases. [00:26:19] Speaker 02: And a later different interpretation of the statute cannot retroactively [00:26:30] Speaker 02: cannot retroactively change the fact that the regulation was binding and it was understood to be binding at the time of the original decisions. [00:26:45] Speaker 02: Now, the Appellant's Council argues [00:26:58] Speaker 02: that Section 1111 was so clear on its face that it was undebatable, even absent the decision in Wagner. [00:27:07] Speaker 02: But actually, the decision in Wagner, this court acknowledged that the issue was a difficult one. [00:27:14] Speaker 02: And at several places throughout the decision, the court noted that Section 1111's language [00:27:23] Speaker 01: This is Judge Stoll again. [00:27:24] Speaker 01: Could you point out the particular language you're relying on? [00:27:27] Speaker 01: Because as I see it here, I'm not sure what you're referring to in WAG. [00:27:32] Speaker 01: They said it was so difficult or a close issue. [00:27:37] Speaker 02: Yes, Your Honor. [00:27:44] Speaker 02: There are a couple of places in the decision. [00:27:54] Speaker 02: At page 1093 of the case, the court states at the outset, we note that the language of Section 1111's rebuttal standard is somewhat difficult to parse. [00:28:12] Speaker 02: It also states that on its face, Section 1111 appears to be somewhat self-contradictory, and that's on the same page. [00:28:21] Speaker 02: And then in the next paragraph, [00:28:23] Speaker 02: the court states that, not surprisingly, the parties offered differing interpretations of the statute's effect. [00:28:30] Speaker 02: So I think even Wagner acknowledged that Section 1111 wasn't so clear on its face as to provide a basis for Q. But again, in addition to that, the regulation was clearly binding at the time. [00:28:51] Speaker 02: Even if 1111 could be read to be clear on its face and an undebatable error, the regulation here would still control the application of Q, as this court found in Jordan. [00:29:07] Speaker 02: Now, this court in Joyce also acknowledged that where the regulations in place at the time of the original decision imposed a different rule, Wagner does not apply. [00:29:21] Speaker 02: And the Veterans Court decision in Percival also citing Jordan acknowledged that 3.304 was the initial interpretation of Section 1111. [00:29:36] Speaker 02: And so the appellants here attempt to [00:29:47] Speaker 02: attempt to disrupt the principles of finality as issued by the Supreme Court and as discussed in DAV versus Gilbert in favor of following this unpublished decision that's in conflict with binding Federal Circuit precedent. [00:30:14] Speaker 01: Unless your owners have further questions, [00:30:16] Speaker 01: I have one. [00:30:18] Speaker 01: Hi, this is Judge Stoll again. [00:30:20] Speaker 01: On the non-presidential Patrick decision, do you read that as saying that there's a difference between arguing the case's application of law to fact versus arguing it as saying that there was a change in law? [00:30:47] Speaker 01: I'm asking for your help and understanding. [00:30:51] Speaker 02: You know, I want to know just, yeah. [00:30:56] Speaker 02: I read Patrick as a really truly a misapplication of rivers and the principles of finality. [00:31:02] Speaker 02: I think there is, it also arguably distinguishes between sort of the [00:31:15] Speaker 02: the regulatory interpretation versus the statutory interpretation. [00:31:20] Speaker 02: But the court in Jordan cited to Wagner in its decision and in finding that Wagner and the OGC opinion were a change in the interpretation of Section 1111. [00:31:37] Speaker 02: So I don't think that Jordan supports, to the extent that Patrick can be read this way, I don't think that Jordan would support [00:31:45] Speaker 02: there being a distinction between a judicial pronouncement of the law versus a regulatory interpretation of the law, as contrasted with a regulatory interpretation. [00:31:57] Speaker 04: Okay, thank you. [00:32:00] Speaker 04: Ms. [00:32:00] Speaker 04: Koenig, just one last quick question. [00:32:03] Speaker 04: I was just wondering if you're aware of any other area of the law where Congress has enacted a way to collaterally attack final judgments [00:32:15] Speaker 04: in other contexts where changes in judicial interpretations of a statute can get retroactively applied to final judgments. [00:32:28] Speaker 04: I don't know if it's something like, it could be anything, social security benefits, criminal law, anything. [00:32:34] Speaker 04: Are you aware of other fields where Congress created a regime where claimants could potentially [00:32:45] Speaker 04: revisit their earlier final judgments based on new understandings, new judicial understandings of statutes? [00:32:56] Speaker 02: Your Honor, I'm not aware of that. [00:32:59] Speaker 02: I guess this court issued an en banc decision in Forcopio somewhat recently and Congress followed that decision with a supplemental claim route which allowed [00:33:14] Speaker 02: for veterans to receive benefits based on that change in the law retroactively. [00:33:20] Speaker 02: And so I think Congress in issuing that act acknowledged that absent that specific action that the change in the interpretation from Procopio could not be retroactively applied to support a Q claim. [00:33:42] Speaker 02: And so they created a [00:33:44] Speaker 02: congressional exception to the Q system, I guess, for lack of a better word. [00:33:56] Speaker 02: And I'm not aware of other specific instances, although I think they would have to be specifically created by Congress. [00:34:05] Speaker 02: And here, Congress, in passing the Q statutes, [00:34:13] Speaker 02: As this court found in DAV, it was clear that Congress intended to codify the regulations as they existed at the time and the Veterans Court decision and other case laws that existed at the time, including the Veterans Court decision in Russell, intended to codify those into the Q statutes as they were passed in 1997. [00:34:40] Speaker 02: So unless Your Honors have further questions, we would ask the court to affirm the board decisions in these cases. [00:34:46] Speaker 02: I'm sorry. [00:34:46] Speaker 05: Thank you. [00:34:48] Speaker 05: Thank you, Ms. [00:34:49] Speaker 05: Painly. [00:34:49] Speaker 05: No one ever loses points by not using up all their time. [00:34:54] Speaker 05: Mr. Coppenter has two minutes. [00:34:56] Speaker 00: Thank you, Your Honor. [00:34:58] Speaker 00: I'd like to begin by talking about the nature of the Q statutes, both of them. [00:35:04] Speaker 00: Congress created a means for a collateral attack. [00:35:09] Speaker 00: created a remedial statute. [00:35:12] Speaker 00: There is no reason that the intent of Congress should be abrogated by the dispute that has been created by the decision made by the Veterans Court. [00:35:26] Speaker 00: The Veterans Court has created an impediment to accomplishing the intent of Congress by creating a question about [00:35:36] Speaker 00: the nature of a change in interpretation. [00:35:40] Speaker 00: Which is not to say that a change in interpretation is not a bar, it is, but the question here goes to whether or not the allegation of Q made exclusively upon the statute can be impeded from being successful because of an action taken by the VA's general counsel [00:36:04] Speaker 00: to correct a clear mistake by the secretary in writing a regulation that directly contradicted the plain meaning of the statute as interpreted by this court in Wagner. [00:36:16] Speaker 00: And as a result, the remedial effect of the intent of Congress needs to be acknowledged and this court needs to reject the impediments to allowing for [00:36:29] Speaker 00: the remedy of the collateral attack when there is, as in this case, a decision made that didn't apply the regulation and the government suggests that somehow the regulation applied even though the board never relied upon the regulation. [00:36:47] Speaker 00: The board, in fact, attempted to rely upon a different statute, a statute that shifted the burden from the appellant [00:36:57] Speaker 00: excuse me, from the government to the appellant, and that the statute that applied did the reverse. [00:37:03] Speaker 00: Thank you very much, Your Honor. [00:37:06] Speaker 05: Thank you, Mr. Coppenham. [00:37:07] Speaker 05: Ms. [00:37:07] Speaker 05: Ogden? [00:37:09] Speaker 03: Thank you, Your Honor. [00:37:10] Speaker 03: I'd like to start by pointing out and responding to opposing counsel's comparison to the Blue Water Navy Act. [00:37:20] Speaker 03: That did indeed involve a new judicial understanding. [00:37:23] Speaker 03: This Court said that 1116 was [00:37:27] Speaker 03: ambiguous in Haas and then later in Procopio said it was unambiguous. [00:37:31] Speaker 03: That is a change in interpretation of law. [00:37:33] Speaker 03: That's not what happened here. [00:37:35] Speaker 03: Here, VA ignored the clear will of Congress by lobbing off half of the statute. [00:37:40] Speaker 03: Q allows for the wrong done to Mr. Martin to be righted. [00:37:44] Speaker 03: It is, in fact, a disruption of the finality of the 1970 decisions. [00:37:50] Speaker 03: It's exactly what Congress intended. [00:37:52] Speaker 03: The court should continue to do what it did in Wagner and Patrick and vacate the veterans court decision finding that Mr. Martin's allegation if he was precluded as a matter of law. [00:38:02] Speaker 03: Thank you. [00:38:04] Speaker 05: Thank you, Ms. [00:38:05] Speaker 05: Odom. [00:38:06] Speaker 05: The case is committed. [00:38:07] Speaker 05: We will run the decision in due course and it will have a presumption of soundness.