[00:00:00] Speaker 04:
case is Nova v. Secretary of Veterans Affairs, 19-1680.

[00:00:04] Speaker 04:
Mr. Byrne, you requested three minutes for rebuttal time, so you may proceed.

[00:00:13] Speaker 05:
Thank you, Your Honor, and may it please the Court.

[00:00:15] Speaker 05:
Michael Byrne on behalf of the National Organization of Veterans Advocates and the Paralyzed Veterans of America.

[00:00:21] Speaker 05:
In enacting the AMA, Congress intended to give veterans

[00:00:25] Speaker 04:
Could we, given our experience with the prior case and the many issues involved, can you start off by addressing the standing issue briefly?

[00:00:34] Speaker 05:
Sure.

[00:00:34] Speaker 05:
I was going to get there very quickly.

[00:00:37] Speaker 05:
And I'd like to begin by addressing the question that Chen asked in the last case.

[00:00:44] Speaker 05:
We think that whether based on this court's decision in Goeber or the additional evidence that both organizations submitted,

[00:00:51] Speaker 05:
that NOVA and PBA have associational standing.

[00:00:54] Speaker 05:
And I'm happy to address the evidence that we submitted, but I did want to start by saying a word about Gober.

[00:00:59] Speaker 05:
You know, we recognize that there is language in Gober that can be read broadly, but we think that what's ultimately going on in Gober is that the court's decision is following from the same principle that this court recently acknowledged in the Phigenix case in which the DC Circuit set forth in the Sierra Club case.

[00:01:20] Speaker 05:
which is that as the DC Circuit explained, in many, if not most cases, the petitioner standing to seek review of administrative action is going to be self-evident and no evidence outside the administrative record will be necessary.

[00:01:33] Speaker 05:
And what's going on in Gover and is equally true here is that where the rules that are being challenged are not esoteric rules that affect only a narrow, unusual subpopulation of veterans, but rather are

[00:01:49] Speaker 05:
broad structural rules that govern the procedures that are applicable to all veterans who are bringing supplemental or initial claims through the system, we think in those circumstances it's self-evident that organizations which represent hundreds or thousands of veterans who are pursuing claims or their councils will have members who are adversely affected by those rules and therefore have standing.

[00:02:15] Speaker 01:
Um, and, and we think that the, the, the, but you don't have a case that stands for that proposition.

[00:02:23] Speaker 05:
Well, I think that the Sierra club case itself sort of stands for the proposition that, uh, in many, if not most cases, um, standing, it's going to be self evident.

[00:02:33] Speaker 05:
And I think what, what even the government, um, acknowledges is that where.

[00:02:38] Speaker 05:
where the individual seeking to establish standing is essentially the object of the rule at issue, in those circumstances they'll have standing.

[00:02:46] Speaker 05:
Now both parties recognize here that at minimum veterans are the object of the rules that issue here.

[00:02:52] Speaker 05:
And because our membership includes hundreds or thousands of veterans that are

[00:02:58] Speaker 05:
many of whom are bringing claims for benefits and pursuing those claims now under the AMA, we think that our membership includes individuals who are the object of the rules and therefore have standing.

[00:03:11] Speaker 05:
And as a result, the associations have standing as well.

[00:03:14] Speaker 05:
But we've also pointed to specific factual evidence to support our claims of standing here.

[00:03:21] Speaker 05:
And I think as an initial matter, I would encourage this court to look at that.

[00:03:26] Speaker 01:
Young members are essentially lawyers, right?

[00:03:29] Speaker 05:
Our members are not, so within the two organizations.

[00:03:33] Speaker 01:
Isn't there an affidavit that you have 107 or something?

[00:03:36] Speaker 05:
How many members do you have that are veterans?

[00:03:40] Speaker 05:
That's right.

[00:03:40] Speaker 05:
So with respect to NOVA, there are over 100 members of NOVA that are themselves veterans.

[00:03:47] Speaker 05:
For PBA, there are thousands of members who are veterans.

[00:03:51] Speaker 05:
But even within NOVA's membership, we have pointed to affidavits from NOVA members who are currently pursuing claims

[00:03:58] Speaker 05:
under the AMA, including Mr. Attick and Mr. Gross.

[00:04:03] Speaker 05:
But our evidence goes further than that.

[00:04:05] Speaker 05:
We also point, for instance, to PVA members who have been directly adversely affected by the rules at issue.

[00:04:11] Speaker 05:
For instance, in the declaration of Jamie Rudert at paragraph seven, we point to Clarence Noble, who is an individual who

[00:04:21] Speaker 05:
has appealed a claim to federal court, and while that appeal was pending, received new evidence and wanted to file a supplemental claim based on that evidence.

[00:04:29] Speaker 05:
But because of the first rule that's being challenged here, 3.2500B,

[00:04:34] Speaker 05:
He was unable to bring that supplemental claim as soon as possible.

[00:04:40] Speaker 05:
We've also pointed to individuals like Ms.

[00:04:43] Speaker 05:
Morton and Mr. Schwanker who, because of the intent to file rule, are being denied the earliest effective date for their claim.

[00:04:55] Speaker 01:
What individuals have you pointed to with regard to 3.2500 DE?

[00:05:03] Speaker 05:
Sure.

[00:05:04] Speaker 05:
So with respect to D and E, I point to a couple of things.

[00:05:08] Speaker 05:
First of all, we point to the affidavit of Mr. Chisholm, who is a NOVA member who represents clients who are affected by that rule.

[00:05:17] Speaker 05:
So Mr. Chisholm,

[00:05:19] Speaker 05:
has a client, for instance, who is in the Board of Veterans Appeals lane, basically opted for that lane before he was represented by Mr. Chisholm, and is now stuck in that lane after 15 months, would like to switch into the Supplemental Claim lane, has evidence that could bring a speedy resolution to the case, potentially.

[00:05:41] Speaker 00:
Is that client a member of NOVA?

[00:05:45] Speaker 05:
That client is not a member of NOVA as far as I'm aware, but we think that under the standard, I'm sorry?

[00:05:52] Speaker 00:
Oh, well then you're about to answer the question of why you think there's associational standard, associational standing for Chisholm.

[00:06:01] Speaker 05:
Yes, yes, Your Honor.

[00:06:03] Speaker 05:
So under the Kaplan and Drysdale case, we do think that Mr. Chisholm would have standing in this instance because Mr. Chisholm's own financial interests are affected by the rule because,

[00:06:15] Speaker 05:
Of course, many of the individuals who are represented in these claims, including Mr. Chisholm's clients, the arrangement of the contingent fee arrangement, and as a result, when a veteran is arrested... That basis would be because of Chisholm without regard to his client, right?

[00:06:36] Speaker 05:
Well, it's because of his relationship with his client.

[00:06:41] Speaker 01:
He would lose some beefs, so he has standing.

[00:06:45] Speaker 05:
That's right.

[00:06:47] Speaker 05:
So it's basically the way that the court has looked at this would be to say, does he have an Article III injury?

[00:06:53] Speaker 05:
And of course, the loss of fees would be sufficient to establish that Article III injury.

[00:06:57] Speaker 01:
And then the second part of the question is, is from a credential standpoint... A loss of potential fees in Gaplin and Drysdale, it was like an admitted loss of fees.

[00:07:08] Speaker 05:
Well, it's true that in Kaplan and Drysdale, they indicated that it would be a certainty that if the money at issue was recovered, that the council would therefore benefit.

[00:07:22] Speaker 05:
But I don't think that the court's opinion turned on that certainty.

[00:07:24] Speaker 05:
And of course, standing is never required certainty of recovery.

[00:07:31] Speaker 01:
You have to move on.

[00:07:33] Speaker 01:
What is the specific

[00:07:35] Speaker 01:
Do you have a specific veteran with regard to your challenge to a 3.156B?

[00:07:42] Speaker 05:
With regard to that, we don't.

[00:07:44] Speaker 05:
But in a sense, that's unsurprising because the issue that arises from that is one that falls from the fact that an individual is not aware of the fact that the VA has constructively received evidence.

[00:07:59] Speaker 05:
And so it's essentially unsurprising that we can't point to a veteran who is aware that they're being harmed by that because the whole problem with the rule is that it basically prevents a veteran from becoming aware that the VA has constructively received that evidence.

[00:08:16] Speaker 05:
I want to make sure that I have time to address the merits.

[00:08:19] Speaker 05:
So with this panel's permission, I'll turn there next.

[00:08:22] Speaker 05:
There's a number of rules that we challenge in this case.

[00:08:25] Speaker 05:
I'd like to at least make sure I get through the first couple.

[00:08:30] Speaker 05:
With respect to the first rule, which is 3.2500B, that's a rule by which the VA forbids individuals who are vindicating their right to appeal to federal court to file supplemental claims during the pendency of their federal court appeals.

[00:08:47] Speaker 05:
And we think that that's incompatible with the text of the AMA, which envisions that individuals would have the right to bring supplemental claims

[00:08:55] Speaker 05:
as soon as the adjudication of their initial lane choice is completed.

[00:09:00] Speaker 05:
And we get that from two components of the statute.

[00:09:04] Speaker 01:
Isn't the problem created by the effective date statute, 5110?

[00:09:13] Speaker 05:
Well, first of all, I think that 5110 does address when an effective date would be... If you just look at 51,

[00:09:24] Speaker 01:
If you look at subsection D and E, there is a protection of the effective date for appeals from the BVA and from the CAVC.

[00:09:39] Speaker 01:
Your problem is that there's not a subsection F and a subsection G that deal with the Federal Circuit and the U.S.

[00:09:47] Speaker 01:
Supreme Court.

[00:09:48] Speaker 05:
Well, we think, if anything, that that helps us because we think what it envisions is that the VA would expect that individuals who have supplemental evidence would be proceeding with their supplemental claim after completion of the notice of disagreement right after the BVA renders the decision or at most after the CAVC renders the decision.

[00:10:08] Speaker 05:
But we think that 5104C

[00:10:11] Speaker 05:
provide strong evidence that the expectation of Congress was that individuals could bring their supplemental claims immediately following the adjudication of whatever their initial land was.

[00:10:21] Speaker 00:
Mr. Burns, this is Judge Jen.

[00:10:24] Speaker 00:
Wouldn't it be inevitable that any supplemental claim that a claimant would desire to file after a BVA adjudication and then appealing that to the federal courts, wouldn't that be a supplemental claim

[00:10:40] Speaker 00:
that's necessarily filed under 5104CB, supplemental claims filed more than one year after the... So I think one... Isn't that right?

[00:10:55] Speaker 00:
I mean, how would it ever be in federal court inside of one year of the initial denial?

[00:11:01] Speaker 05:
No, that's right.

[00:11:03] Speaker 05:
So that's one way to read it.

[00:11:05] Speaker 05:
One way to read it would be to say that section B there clearly envisions that you could bring a supplemental claim while a federal court appeal is pending.

[00:11:16] Speaker 00:
Well, it doesn't quite say that, but you are right to the extent that 5104CB is unconditional in that sense, in that it just says,

[00:11:32] Speaker 00:
at any time, you know, in any case more than one year has passed, you may file a supplemental claim period.

[00:11:38] Speaker 00:
And then.

[00:11:38] Speaker 05:
That's right.

[00:11:38] Speaker 05:
But we think there's an even easier way.

[00:11:40] Speaker 00:
The question you're referring to in 5110 that there are certain windows of time during that post one year period where you'll, you have one year after a BVA decision or within one year of a CAVC decision that you may file a supplemental claim and have your effective date preserved.

[00:12:02] Speaker 05:
Right.

[00:12:03] Speaker 05:
I mean, I think VA reads that provision basically to be applicable only in the instance in which you did not first satisfy the conditions in 501 for CA.

[00:12:16] Speaker 05:
And ultimately, we think that there's an easier way to get to this answer just by looking at the text of 501 for CA2, which sets forth two things.

[00:12:29] Speaker 05:
One, that when you bring a claim within one of the lanes,

[00:12:33] Speaker 05:
You can't bring a claim, a supplemental claim until that the initial lane has been adjudicated and it's followed up by language.

[00:12:46] Speaker 01:
Could I just stop you there?

[00:12:47] Speaker 01:
Let's assume that a veteran pursues the route after he's been denied by the agency of original jurisdiction and he files a nod and he goes to the BVA.

[00:12:59] Speaker 01:
And let's assume

[00:13:00] Speaker 01:
hypothetically, at least, that the BVA renders its decision within one year from the date that the nod was filed for one day to the original decision.

[00:13:11] Speaker 01:
And so let's assume the veteran then has the right to file a supplemental claim.

[00:13:15] Speaker 01:
There's no question about it, right?

[00:13:19] Speaker 05:
Yes.

[00:13:19] Speaker 01:
In that case, there's the... Let me finish.

[00:13:23] Speaker 01:
Yes.

[00:13:24] Speaker 01:
The veteran says she was.

[00:13:25] Speaker 01:
I'm kind of surprised that the BVA could act that fast, but they did.

[00:13:30] Speaker 01:
And so I got my final decision at the BVA, and what I'm going to do is file a supplemental claim.

[00:13:36] Speaker 01:
So he files a supplemental claim, and the next day, he files a notice of appeal to the Court of Appeals for Veterans Affairs.

[00:13:45] Speaker 01:
And so his case goes up, and it goes on review.

[00:13:49] Speaker 01:
The law, 5104C, permits that, does it not?

[00:13:55] Speaker 05:
That it permits him to go up on appeal to the DABC at that point?

[00:14:00] Speaker 01:
Yes, it permits him to file a supplemental claim.

[00:14:04] Speaker 01:
Yes.

[00:14:05] Speaker 01:
Then pursue judicial review in a federal court so that his proceeding will be going in front of the federal court at the same time that his supplemental claim will be adjudicated back at the RO.

[00:14:20] Speaker 05:
Yeah, that's right.

[00:14:22] Speaker 01:
Let me think.

[00:14:24] Speaker 05:
Sure, I'm sorry.

[00:14:25] Speaker 01:
The statute permits that on its face, right?

[00:14:30] Speaker 01:
But the regulation would bar such, you know, if you were at a later point in time.

[00:14:40] Speaker 01:
What's the rationale for allowing one and denying the other?

[00:14:45] Speaker 05:
We agree, Your Honor, that there is no basis to permit one and not permit the other based on the accident of how long the BVA decision would take.

[00:14:57] Speaker 01:
So let me just ask one other question.

[00:15:00] Speaker 01:
Can you figure out what's going on here?

[00:15:02] Speaker 01:
There's obviously this whole problem of your client having his rights to vindicate himself through judicial review at our court, the Supreme Court,

[00:15:14] Speaker 01:
being interfered with in my judgment as a creature of the effective date statutes that could have been cured.

[00:15:21] Speaker 01:
The government seems to have recognized, the Veterans Affairs seems to have recognized that something smells in Denmark, as Shakespeare said.

[00:15:30] Speaker 01:
And so in their brief they said, hang on everybody, we're going to fix this with a regulation.

[00:15:38] Speaker 01:
And so by the time the government comes in a little later, they say, whoops,

[00:15:42] Speaker 01:
We haven't been able to do a regulation, but what we're going to do is give you a non-binding policy directive that is issued by the secretary to all the agencies of initial jurisdiction saying go ahead and just preserve the effective date for folks that go on to the federal circular Supreme Court, right?

[00:16:09] Speaker 01:
Isn't that what that policy memo says?

[00:16:12] Speaker 05:
Yes.

[00:16:12] Speaker 05:
That's correct.

[00:16:14] Speaker 01:
Does this cure the problem or what, when you have an agency that is backpedaling away from its regulation while at the same time trying to defend it as a matter of law, what does that do to us in our review authority under 502?

[00:16:33] Speaker 05:
Sure.

[00:16:34] Speaker 05:
I think, well, I think two things.

[00:16:38] Speaker 05:
It does not affect

[00:16:40] Speaker 05:
I think it does not affect this court's jurisdiction because it doesn't cure the problem in its entirety.

[00:16:45] Speaker 05:
While it does protect the effective date, it doesn't alter the fact that individuals are still being prevented from filing a supplemental claim as soon as possible.

[00:16:54] Speaker 05:
And so individuals who have to await the resolution of their federal court appeal process will still lose, you know, will still not receive their benefits from ultimately filing supplemental claims for several years.

[00:17:07] Speaker 05:
So there's no cure to that process.

[00:17:09] Speaker 05:
But I think what it does do is the fact that the government has backpedaled essentially with respect to a key component of the rule suggests that the rule as originally promulgated did not effectively consider all of the issues and should be vacated for further consideration.

[00:17:24] Speaker 04:
Okay.

[00:17:25] Speaker 04:
Mr. Byrne, yeah, we've used up all your rebuttal time.

[00:17:29] Speaker 04:
Let's go ahead and hear from the other side and I'm going to restore you back to three minutes of rebuttal, okay?

[00:17:35] Speaker 05:
Appreciate that, Your Honor.

[00:17:36] Speaker 05:
Thank you.

[00:17:36] Speaker 05:
Yes.

[00:17:37] Speaker 04:
So let's hear from Mr. Grimaldi now.

[00:17:41] Speaker 03:
Good morning, Your Honors.

[00:17:42] Speaker 03:
May it please the court that we respectfully request that the court dismiss or deny this petition.

[00:17:48] Speaker 03:
And if Your Honors would like, I can start off by speaking with standing because that's been the first issue that's been addressed today.

[00:17:54] Speaker 03:
And the point that counsel has made is that there is this concept that standing should, in these situations with associational standing,

[00:18:04] Speaker 03:
should be self-evident in most cases.

[00:18:08] Speaker 03:
If that is the situation here, why is it when evidence has been submitted by these organizations, they're still unable to demonstrate that their individual members would have standing to sue on their own?

[00:18:20] Speaker 03:
This is certainly not a case that standing is self-evident, if that's even a concept, this idea that self-evidence is sufficient, because when the evidence was actually submitted,

[00:18:33] Speaker 03:
It did not show that standing was available for these particular individuals.

[00:18:41] Speaker 00:
What about PVA, what about Rudert, paragraph seven?

[00:18:50] Speaker 03:
This is the... I apologize.

[00:18:52] Speaker 00:
Okay, I'm sorry.

[00:18:53] Speaker 00:
This is relating to the regulation 3.2500B, the ability to file a supplemental claim while judicial review is pending.

[00:19:00] Speaker 00:
And as I understand it, there was a Mr. Rudert, who at paragraph seven talked about a Clarence Noble, who had appealed a claim to federal court and also then received new evidence and wanted to file a supplemental claim during the pendency of federal court review but was denied that ability.

[00:19:20] Speaker 00:
So that would be an example of somebody that's been harmed, that's a member of PVA,

[00:19:29] Speaker 00:
by this regulation denying the abilities to do a simultaneous supplemental claim in judicial review.

[00:19:37] Speaker 03:
Right, Your Honor.

[00:19:38] Speaker 03:
And I guess the problem that we would be having with the general, I believe Mr. Rudert is the general counsel, if I'm remembering correctly, is submitting an affidavit regarding the actions of another individual and what they can or cannot do.

[00:19:51] Speaker 01:
He's sworn under oath that he could go to jail.

[00:19:54] Speaker 01:
If he is misrepresenting noble, he would go to jail.

[00:19:59] Speaker 03:
And that's a fair point, Your Honor.

[00:20:04] Speaker 01:
Why don't you just take Rudert on his face as being an accurate and truthful representation of what Noble, the member, is saying?

[00:20:15] Speaker 01:
And I agree with you, Your Honor.

[00:20:18] Speaker 01:
Given that, why has not PVA made standings with 2500B?

[00:20:27] Speaker 03:
Well, Your Honor, I would say that this would suffer from the same problems that we found with Mr. Schwanker and Ms.

[00:20:32] Speaker 03:
Morton's declaration.

[00:20:34] Speaker 03:
It's not enough to just allege that there is something they want to do, but we want to see some sort of, we think the court should see some sort of evidence supporting that this action can be undertaken.

[00:20:46] Speaker 03:
You know, for example, you have a situation with Mr. Schwanker and Ms.

[00:20:51] Speaker 01:
Morton.

[00:20:52] Speaker 01:
What do you mean by showing that the action could

[00:20:55] Speaker 01:
What more would the noble have to say to satisfy your task to show that something could be happening?

[00:21:05] Speaker 02:
Now, tell me the words that need to be added to noble and then I'll know what you're talking about.

[00:21:12] Speaker 03:
Well, I guess some identification of the new evidence that he has received.

[00:21:18] Speaker 03:
For example, when we took a look at the claims files of Ms.

[00:21:23] Speaker 03:
Ms.

[00:21:23] Speaker 03:
Morton and Mr. Schwanker, we didn't necessarily agree that they could undertake the actions that they say that they want to undertake.

[00:21:30] Speaker 03:
Now, I'm not saying that they're being untruthful in their declarations.

[00:21:34] Speaker 03:
What I'm saying is that we very much disagree with the post...

[00:21:39] Speaker 03:
Oh, I understand it.

[00:21:41] Speaker 03:
I want to make very clear.

[00:21:42] Speaker 03:
That's why I want to, like, explicitly say, Your Honor, that we are not taking that position, and we don't want to take that position.

[00:21:49] Speaker 02:
But what we think... You're saying it's not enough for nobody to say, I have new evidence.

[00:21:55] Speaker 01:
You're saying, what is the evidence identified?

[00:22:00] Speaker 02:
Correct.

[00:22:01] Speaker 02:
Yes.

[00:22:03] Speaker 02:
Yes, to see if... You don't believe him when he says he has new evidence.

[00:22:11] Speaker 03:
We want to make sure that new evidence is sufficient, is new and material to support a supplemental claim, which is a legal question, Your Honor, not a factual one, as to whether or not Mr. Noble has... That, though, I mean, you can bring a new and material evidence claim that would pass, you know, muster for, you know, a challenge to follow, and yet have it determined, I'm sorry, the judge said that wasn't new or material.

[00:22:41] Speaker 03:
Correct.

[00:22:43] Speaker 01:
I just want to push you a little bit on this because it's something that's going to come out of the hearing tomorrow, but you are requiring a degree of specificity with regard to the evidence that goes well beyond a general vermin on your own that has the evidence.

[00:23:00] Speaker 02:
Are you not?

[00:23:02] Speaker 03:
Yes, Your Honor.

[00:23:03] Speaker 03:
I think that that's a fair way to phrase it.

[00:23:05] Speaker 03:
We are asking for specificity as opposed to statements of intent

[00:23:11] Speaker 03:
so that there is something in the record to show that the individual not only wants to undertake the action that they say they want to undertake, but actually can meet the requirements of taking that action once the... That then blends into the merit of the action the person wants to bring.

[00:23:34] Speaker 03:
Yes, it gets very close to the merits, Your Honor.

[00:23:37] Speaker 03:
It does.

[00:23:38] Speaker 03:
And we can see that.

[00:23:40] Speaker 03:
And that's why we do point out in our briefing that PVA, unlike NOVA, has declarations that are very close to being able to support the evidence.

[00:23:52] Speaker 03:
Whereas the NOVA declarations are talking about, in theory, these rules potentially hurting all veterans, so thus hurting the individual veteran, Mr. Attick, who submitted the declaration.

[00:24:04] Speaker 03:
So it is about specificity.

[00:24:07] Speaker 03:
as opposed to just generalized statements.

[00:24:12] Speaker 03:
And where does that come from?

[00:24:13] Speaker 01:
It comes from... The law on associational standing provides some degree of specificity because the organization has to have a member that they identify who is going to allege personal harm.

[00:24:33] Speaker 01:
The personal harm is defined by Friends of the Earth and Lujan, is it not?

[00:24:44] Speaker 03:
I'm sorry, Your Honor.

[00:24:46] Speaker 03:
I didn't hear that last time.

[00:24:50] Speaker 01:
What I'm saying is that you are asking for a very rigorous standard of personal harm under what I believe is, you're saying, Friends of the Earth, Lujan.

[00:25:03] Speaker 01:
is the test for finding personal harm.

[00:25:07] Speaker 03:
Right.

[00:25:09] Speaker 03:
And looking at Lujan, Your Honor, it does say that the object of the provision here is, if I'm remembering it correctly, not to replace the conclusory allegations that are in the complaint with just conclusory allegations in the affidavit.

[00:25:22] Speaker 03:
There is this intent in Lujan to provide more than just conclusory statements.

[00:25:31] Speaker 03:
you know, supporting evidence as well, Your Honor.

[00:25:34] Speaker 03:
And we would also say that this is consistent with Laidlaw, which looked not only about whether the individuals had concerns about pollution, but were actually looking at the activities regarding the actual pollution itself and the harm from the pollution.

[00:25:49] Speaker 03:
So it's more about concern, less about concern, and more about whether there's actual harm.

[00:25:54] Speaker 03:
And we think that this type of evidence would show that actual harm.

[00:25:58] Speaker 01:
So let me ask you a question on 32500D, pardon me, B, the last sentence, which bars the filing of a supplemental claim once you are in front of a federal court.

[00:26:15] Speaker 01:
You heard my statement earlier.

[00:26:19] Speaker 01:
I read the 5104C, a veteran who has timely

[00:26:26] Speaker 01:
gone from the RO on a knob to the BBA, and he would be lucky enough to get a decision by the BBA within one year, would be free to file a supplemental claim.

[00:26:39] Speaker 01:
Isn't that correct?

[00:26:41] Speaker 03:
Yes, if it's within one year, absolutely.

[00:26:43] Speaker 01:
Okay, that's correct.

[00:26:44] Speaker 01:
So then he files his supplemental claim.

[00:26:47] Speaker 01:
Shortly after filing his supplemental claim and within the time frame, he files a notice of appeal to the Court of Appeals for Veterans Affairs.

[00:26:55] Speaker 01:
So his case goes in front of a federal court.

[00:27:01] Speaker 01:
In this hypothetical, his supplemental claim will be adjudicated administratively while he is being adjudicated in the federal court, right?

[00:27:12] Speaker 03:
Yes, hypothetically.

[00:27:14] Speaker 01:
That law is positive.

[00:27:18] Speaker 01:
That is a real wide possibility provided by the statute.

[00:27:24] Speaker 01:
Your regulation,

[00:27:26] Speaker 01:
will prohibit the filing of the same notice, the same supplemental claim if the veteran had filed his notice of appeal to the CABC before he filed the supplemental claim and would deny the filing of that claim.

[00:27:45] Speaker 01:
What's the difference?

[00:27:48] Speaker 01:
I mean, if the statute allows what the rule denies,

[00:27:55] Speaker 01:
then the rule can't survive.

[00:27:58] Speaker 03:
Well, it absolutely can, Your Honor.

[00:28:00] Speaker 03:
The point of the rule is to increase efficiency in the system.

[00:28:04] Speaker 01:
Now, what the rule, the AMA does... What efficiency?

[00:28:08] Speaker 01:
What's the difference?

[00:28:10] Speaker 01:
I mean, let's assume, in my hypothetical, that in my case, that where you had your supplemental claim filed, and then you later filed your notice of appeal,

[00:28:24] Speaker 01:
And the federal circuit takes the case up in time.

[00:28:27] Speaker 01:
And the fact that the next guy that comes along two days later does the same thing except he foolishly files his notice, his supplemental claim, after he files his notice of appeal.

[00:28:40] Speaker 01:
The two cases are going to be adjudicated simultaneously exactly the same.

[00:28:46] Speaker 01:
What's the difference?

[00:28:48] Speaker 01:
what your honor this this that you know i would like government the statute allows the inefficiency of the statute allows the co pendency nothing in the nothing in bed and supreme court law denies uh... parallel administrative proceedings and judicial proceedings at the same time so what's the rationale how can i i don't see how your regulation can survive

[00:29:18] Speaker 01:
is trying to bar something that's factually allowed.

[00:29:23] Speaker 03:
Well, Your Honor, I started saying there's two things, and now I think there's actually three things to respond to here.

[00:29:29] Speaker 03:
Thank you.

[00:29:31] Speaker 03:
So the three things that I believe to say here are, the first are, is that the AMA itself is a line drawing exercise.

[00:29:41] Speaker 03:
It is an attempt to decrease the inefficiencies that existed in the last system.

[00:29:46] Speaker 03:
inefficiencies that this court is well aware of.

[00:29:50] Speaker 03:
Now, did the AMA eliminate every possible inefficiency?

[00:29:55] Speaker 03:
No, because what it is, is it's a balancing act.

[00:29:57] Speaker 03:
It's a balancing act between decreasing inefficiencies and checking on the rights of the individual claimants.

[00:30:08] Speaker 03:
And sometimes you have to balance those off.

[00:30:10] Speaker 03:
What Congress

[00:30:12] Speaker 03:
And VA has done here is drawn a line in this band and given some rights that can occur within the first year and then some rights that cannot occur in the first year.

[00:30:23] Speaker 03:
And the points that I would like to make about those is, first, that one-year mark is based on the statutory text.

[00:30:30] Speaker 03:
And I just want to list these off before I get into them.

[00:30:33] Speaker 03:
Secondly, the... Let me get it.

[00:30:36] Speaker 01:
Your first argument is that the AMA is an imperfect statute

[00:30:41] Speaker 01:
eliminate some inefficiencies but not all.

[00:30:45] Speaker 01:
One of the inefficiencies that it failed to eliminate was the right to have co-pending federal and judicial administrative and federal judicial review under my hypothetical.

[00:30:57] Speaker 01:
That's an inefficiency it failed to cure, right?

[00:31:02] Speaker 01:
Yes, that would be true.

[00:31:03] Speaker 01:
So your first argument is the statute couldn't cure all the inefficiencies and it left one behind.

[00:31:09] Speaker 01:
So what's the next argument?

[00:31:11] Speaker 03:
I'm sorry, Your Honor, but that's not an accurate characterization of my argument.

[00:31:15] Speaker 03:
I would like to add to it so the court gets a better explanation of it.

[00:31:19] Speaker 03:
The point of it, Your Honor, is a balance.

[00:31:22] Speaker 03:
It's not an imperfect statute.

[00:31:24] Speaker 03:
It is a good statute that has line drawing in it.

[00:31:28] Speaker 03:
Just like the lane switching rule, which is very similar, why can you change lanes within the first year but not after the second one, seconds, you know, into the second year?

[00:31:38] Speaker 03:
And the reason simply is that the Congress and VA are allowing for some inefficiencies in the system to protect the individual claims.

[00:31:48] Speaker 01:
I buy that the statute can certainly draw lines.

[00:31:52] Speaker 01:
And what my discussion with you, I think, has proved is that they drew a line that allows bars, co-pendency, and administrative and federal, in some instances, but doesn't bar it in others.

[00:32:08] Speaker 01:
Now, my question is, what's the rationale for barring one and approving the other?

[00:32:15] Speaker 01:
The regulation, because on its face it is inconsistent with one aspect of the statute, doesn't the regulation have to explain why it made this distinction?

[00:32:29] Speaker 03:
And Your Honor, this goes into the second point, I guess, Your Honor, is that this is based in the actual text of 5104C.

[00:32:37] Speaker 03:
Because if you look at 5104C, it talks about actions being able to undertake in the first year in paragraph A. In paragraph B, it talks about the ability to, you know, the different lanes and talks about sequentially, not in succession, but it limits it to the first year.

[00:32:58] Speaker 03:
So it's Congress that wrote in this requirement that things occur sequentially within the first year.

[00:33:08] Speaker 03:
It is not VA who has created this rule, excuse me, that concept.

[00:33:13] Speaker 03:
The VA has issued a provision or a rule in implementing that concept itself.

[00:33:22] Speaker 01:
You know, as to why...

[00:33:26] Speaker 01:
So on point two, which is really calling on point one, then you're saying basically the distinction is that Congress says it's okay to have inefficiencies, as you called them in the first year, but not thereafter.

[00:33:40] Speaker 03:
That is part of the answer.

[00:33:42] Speaker 03:
And there's also text in the final rule that I would point you to.

[00:33:48] Speaker 03:
That's part of the test where?

[00:33:51] Speaker 03:
There's language on appendix page eight.

[00:33:55] Speaker 03:
talking about the specific comments that were addressed in concurrent election and talking about how it is inefficient to have, and I think this court understands that it's inefficient to have two different bodies reviewing something at the same time and how it would be confusing to have parties, you know, this court reaching a conclusion to one case while the supplemental claim is being adjudicated and another perhaps reaching a different

[00:34:22] Speaker 03:
it's a different reason.

[00:34:24] Speaker 03:
Right there, the VA is understanding that there is an inefficiency in the system that they want to address.

[00:34:31] Speaker 01:
But the VA could not... Not to use up all your time.

[00:34:34] Speaker 01:
It just seems to me that where your argument is taking you on this one, because you admitted that my hypothetical is correct, so that the statute permits a circumstance which the rule, if you file later to the federal appeals court, the bar, the basic answer is that

[00:34:52] Speaker 01:
Congress recognized that there, in the first year, you could have some inefficiencies that would be barred after the first year.

[00:35:00] Speaker 03:
Yes, Your Honor, that's a good summary of the answer.

[00:35:03] Speaker 00:
Mr. Grimaldi, this is Judge Chen.

[00:35:04] Speaker 00:
As I look at the statute, I do see that Congress put some restrictions in on your ability to file supplemental claims inside of that first year.

[00:35:19] Speaker 00:
That is to say whenever you've got, say, a board appeal pending.

[00:35:25] Speaker 00:
But when I look at the other type of supplemental claim in 5104CB, I don't see any conditions, any restrictions, any regulations on a claimant's ability to file a supplemental claim after that first year has expired.

[00:35:47] Speaker 00:
When I look at 5014C-A and compare it to 5014C-B, it, to my eyes, strongly indicates that after that first year expires, a claimant has an unfettered right to file a supplemental claim.

[00:36:04] Speaker 00:
And it doesn't matter if there's something pending somewhere else on review, whether it's at the Veterans Court or the Federal Circuit or the Supreme Court.

[00:36:17] Speaker 00:
Where in the statute should I look to where I would see words that would tell me, oh, I'm misunderstanding 5104CB.

[00:36:27] Speaker 00:
There actually are some restrictions on timing and ability to file a 5104CB supplemental claim.

[00:36:38] Speaker 03:
Well, Your Honor, I think that I believe it was Judge Clevenger when speaking with my colleague, hit the nail on the head that said the real problem here is about effective dates.

[00:36:48] Speaker 03:
A claimant would prefer to have their supplemental claim revert back to the original effective date.

[00:36:55] Speaker 03:
Sure.

[00:36:56] Speaker 00:
And I know that under 5110 that there are a couple windows of where you can file a supplemental claim.

[00:37:03] Speaker 00:
and enjoy the earliest effective date.

[00:37:07] Speaker 00:
And that's the one year after a BBA decision and a one year after a CABC decision.

[00:37:12] Speaker 00:
And any time outside of that, that's outside of one year from the initial denial, you will not get and enjoy that same effective date for supplemental claim.

[00:37:21] Speaker 00:
But nevertheless, I'm looking for words in the statute that I should look at that will convince me that there are certain conditions on when you can file

[00:37:33] Speaker 00:
a 5104CB supplemental claim.

[00:37:37] Speaker 00:
And I don't see it up right now.

[00:37:39] Speaker 03:
And I guess my question, my misunderstanding of your question might be is that I don't see a supplemental claim being different in one way or another.

[00:37:46] Speaker 03:
There's always a supplemental claim is a supplemental claim, Your Honor.

[00:37:51] Speaker 03:
If you look at 5104CB.

[00:37:52] Speaker 00:
So my point is, if you went ahead and got a denial from the board, an adverse decision, and then you appealed that to the CABC,

[00:38:02] Speaker 00:
and then got an adverse decision from the CAVC, we're certainly well more than a year after the decision of initial denial.

[00:38:11] Speaker 00:
And so you're well within your rights to file a supplemental claim, but you're also well within your rights to appeal that adverse Veterans Court decision to the Federal Circuit.

[00:38:20] Speaker 00:
And so what in the statute is depriving the claimant from being able to do both of those things in my hypothetical?

[00:38:30] Speaker 03:
Well, Your Honor, in the hypothetical, what prevents and how we talk about, it would be 5104C preventing doing things at the same time.

[00:38:42] Speaker 03:
Just 5104C discusses sequential.

[00:38:45] Speaker 00:
You're talking about 5104CA, right?

[00:38:50] Speaker 00:
And I'm talking about 5104CB.

[00:38:55] Speaker 00:
I agree with you that there are certain restrictions on what a claimant can do.

[00:39:00] Speaker 00:
vis-a-vis a supplemental claim in the context of 5014C-A.

[00:39:06] Speaker 00:
That is the actions you can take within one year of the initial denial.

[00:39:11] Speaker 00:
Now I'm talking about a different context.

[00:39:13] Speaker 01:
And Mr. Grimaldi just stated differently, why doesn't 5014C-B allow the veteran to file the supplemental claim that is barred by your regulation?

[00:39:28] Speaker 03:
And I'm going to apologize, Your Honor, for this entire conversation that we've been having.

[00:39:32] Speaker 03:
I thought you were talking about 5104B, not CB, and was very confused because I was looking at it.

[00:39:43] Speaker 01:
We can go back and review what you've said in that light.

[00:39:46] Speaker 01:
But I'm just asking, I think what Doug Chen's been asking, in simple terms, is when you read 5104CB,

[00:39:55] Speaker 01:
any time after the year after the original AO, somebody can file a supplemental claim.

[00:40:01] Speaker 01:
That's what it says, right?

[00:40:03] Speaker 01:
That's correct.

[00:40:04] Speaker 01:
And what that's envisioning is... Okay, so then take your regulation and take the situation where a veteran has pending before the CA, pending before a federal court, before the CABC or us or the Supreme Court, files a supplemental claim.

[00:40:27] Speaker 01:
Your rule bars it.

[00:40:30] Speaker 03:
Correct.

[00:40:32] Speaker 01:
How can your rule bar that when the statute allows it?

[00:40:37] Speaker 03:
Well, Your Honor, we would say that you would read 5104C A and B together.

[00:40:43] Speaker 03:
And since A2 talks about things being done sequentially, that would also apply in the B scenario.

[00:40:52] Speaker 03:
So what would happen in how we would envision this?

[00:40:55] Speaker 01:
You're asking us

[00:40:56] Speaker 01:
as a matter of statutory interpretation, take a statute that has two subsections, one that deals with everything that happens within one year of a decision, and one that deals with everything that happens after a year.

[00:41:09] Speaker 01:
And you're asking us to take some of the provisions out of A and stick them into B, correct?

[00:41:15] Speaker 03:
And I can tell you why I'm asking you that, Your Honor.

[00:41:18] Speaker 01:
If you look at the... You realize it's a reach, but go ahead.

[00:41:22] Speaker 03:
But if you look at the history here, Your Honor, perhaps you'll agree with us that it is in a reach.

[00:41:28] Speaker 03:
The history that we discussed in our briefing shows that when the VSOs and commentators on the proposed rules raised this concurrence issue to, excuse me, I said on the proposed rules, I'm talking about on the AMA.

[00:41:44] Speaker 03:
When the commentators on the AMA raised issues of concurrence,

[00:41:49] Speaker 03:
problems, going to court and filing a supplemental claim, the resolution was not for Congress to revise 5104C to make it clear that you could have concurrent federal court and a supplemental claim, but rather to add the effective date protection to 5110, which allows you to file your supplemental claim after going to the Veterans Court.

[00:42:14] Speaker 03:
So right there, it shows congressional intent

[00:42:17] Speaker 03:
that we are talking about a situation where you want to proceed sequentially, not concurrently, no matter how you're filing that supplemental claim.

[00:42:26] Speaker 03:
Otherwise, Congress would have revised the language of 5104C to clarify what their intent was to allow concurrent.

[00:42:35] Speaker 03:
They didn't do that.

[00:42:36] Speaker 03:
They just added effective date protection.

[00:42:39] Speaker 03:
And that's what the history shows.

[00:42:41] Speaker 03:
It shows the congressional intent.

[00:42:44] Speaker 04:
Now, I'm talking about... Okay.

[00:42:46] Speaker 04:
Counselor, at some point, we're going to have to move on.

[00:42:50] Speaker 04:
Any other questions from my colleagues?

[00:42:54] Speaker 04:
Real quickly, yes.

[00:42:56] Speaker 04:
Judge Clemency.

[00:42:58] Speaker 04:
Judge Clemency.

[00:43:00] Speaker 01:
I've got another one question.

[00:43:02] Speaker 01:
Under 5401CB, and more than one year after the decision, isn't it possible for a veteran to file more than one supplemental claim?

[00:43:18] Speaker 01:
You know, honestly, Your Honor, I don't know if that would be... We have supplemental claims for issues within claims.

[00:43:28] Speaker 01:
I mean, you're right.

[00:43:30] Speaker 01:
I'm just trying to test your whole notion about efficiency and all this stuff about this fancy new statute.

[00:43:37] Speaker 01:
As I read B, and you can just tell me if I'm wrong or tell me if I'm right, B would allow a veteran to have more than one

[00:43:45] Speaker 01:
After a year, more than one supplemental claim going at the same time.

[00:43:51] Speaker 03:
Correct?

[00:43:53] Speaker 03:
Because one was filed before the year was up and one was filed after the year was up?

[00:43:58] Speaker 01:
No, no, no, both are filed.

[00:43:59] Speaker 01:
No, after a year.

[00:44:00] Speaker 01:
Well, you know, well after a year.

[00:44:04] Speaker 03:
Well, the VA still has a duty to assist when there's a supplemental claim.

[00:44:09] Speaker 01:
I'm just testing your whole notion because

[00:44:15] Speaker 01:
You keep saying there are these efficiencies and co-pendency and we don't want two things happening at the same time.

[00:44:21] Speaker 01:
It's perfectly clear within the one-year timeframe, you have to go at your options one at a time and no one disagrees with that administratively.

[00:44:32] Speaker 01:
All I'm asking is after a year, isn't it possible for the veteran to have, he's no longer restricted by the requirement that he can only have one at a time?

[00:44:44] Speaker 03:
Well, he can only file a supplemental claim.

[00:44:48] Speaker 03:
My only question and why I'm hesitating in responding to you, Your Honor, is I'm not sure that that would be a separate supplemental claim as opposed to asking for more duty to assist from the VA on the supplemental claim that's already been filed.

[00:45:01] Speaker 01:
No, he's asking for different supplemental claims.

[00:45:06] Speaker 03:
Well, then it might actually be a different issue, so it might be able to pick a different lane on it, Your Honor, because the lanes that you go in go per issue.

[00:45:14] Speaker 03:
as opposed to per overall claim.

[00:45:20] Speaker 03:
But yes, I agree with you in general that once you file that supplemental claim after the year, whatever you've written on it is not the end of what you can do with your issue.

[00:45:31] Speaker 03:
You can continue that supplemental claim.

[00:45:33] Speaker 03:
Thank you.

[00:45:34] Speaker 00:
Okay, my question relates to 3.155, the intent to file supplemental claims.

[00:45:41] Speaker 00:
Assume for the moment,

[00:45:43] Speaker 00:
that the court believes they're standing, established by PVA on that one.

[00:45:48] Speaker 00:
Also assume that the court concludes that this particular regulation, it's arbitrary and capricious to treat intent to file for supplemental claims differently than for intent to file for initial claims.

[00:46:04] Speaker 00:
You, in your brief, have indicated that VA plans to propose a regulation.

[00:46:10] Speaker 00:
Who knows when?

[00:46:13] Speaker 00:
I'm trying to figure out what to do, because we have to write a decision.

[00:46:18] Speaker 00:
We could very well just straight up vacate the regulation.

[00:46:24] Speaker 00:
But if you were to tell me that the VA was about to issue some kind of notice in the coming days officially rescinding that regulation, then, well, maybe that would make my life easier.

[00:46:39] Speaker 00:
So what I'm asking is,

[00:46:42] Speaker 00:
You indicated over half a year ago, there was an intention to do something about this regulation and take care of it.

[00:46:48] Speaker 00:
And as far as I know, it's still sitting there on the books.

[00:46:51] Speaker 00:
And so therefore, as far as I know, it's still being applied.

[00:46:54] Speaker 00:
What is going on?

[00:46:55] Speaker 00:
Can you give me the current status of when you actually plan on rescinding that regulation?

[00:47:02] Speaker 03:
Unfortunately, I wish I had more to tell you today.

[00:47:04] Speaker 03:
That was our hope.

[00:47:06] Speaker 03:
But the internal process.

[00:47:08] Speaker 00:
OK, so let's move forward then.

[00:47:09] Speaker 00:
The court has to move forward because the VA apparently won't.

[00:47:16] Speaker 03:
Yes, Your Honor.

[00:47:17] Speaker 03:
I would just like to add that the VA has a lot on its plate right now with the AMA.

[00:47:22] Speaker 03:
And if within the next few weeks before a decision comes out from your honors, if we have any status update, first thing we'll do is let you know.

[00:47:32] Speaker 01:
That doesn't really help us.

[00:47:35] Speaker 01:
Let me answer this question.

[00:47:36] Speaker 01:
You will tell us that the VA is presently enforcing that regulation.

[00:47:43] Speaker 01:
They're refusing to grant intensifiers.

[00:47:50] Speaker 03:
I apologize, Your Honor.

[00:47:51] Speaker 03:
I don't have the answer to that.

[00:47:52] Speaker 01:
I don't know what they are.

[00:47:55] Speaker 01:
That doesn't do me any good at all.

[00:47:58] Speaker 01:
You knew this was coming.

[00:48:00] Speaker 01:
You're unprepared.

[00:48:03] Speaker 01:
It makes a world of difference to the veterans out there about whether or not the agency has said, well, we're not going to enforce this regulation, so we're going to allow intent to file and preserve an effective date.

[00:48:21] Speaker 01:
Don't we have to assume that the agency is applying this rule?

[00:48:28] Speaker 03:
Yeah, Your Honor, we are unable to tell you whether every single regional office is not doing it, unlike the other rule that we have pointed to in our briefing.

[00:48:37] Speaker 01:
Let's put it this way.

[00:48:38] Speaker 01:
There is no instruction to the agency to cease application of the rule.

[00:48:43] Speaker 01:
There's no policy letter such as you showed us with respect to the other issue.

[00:48:49] Speaker 03:
Yeah, that's exactly where I was going, Your Honor.

[00:48:50] Speaker 03:
I think that I'm actually agreeing with you here that, unlike the other rule, we don't have a policy letter to show you.

[00:48:59] Speaker 03:
So I can't definitively state that there's someone not out there.

[00:49:02] Speaker 03:
And I understand that the position this court is putting because of that.

[00:49:08] Speaker 03:
Okay.

[00:49:09] Speaker 04:
I think that answers all our questions.

[00:49:11] Speaker 01:
You basically don't want to concede error on the merits, right?

[00:49:17] Speaker 03:
That was my understanding, yes.

[00:49:19] Speaker 03:
The VA and from the initial conversations in this case, yes, there is no concession of error with the actual regulation itself, but we will be replacing it.

[00:49:31] Speaker 04:
Any other questions?

[00:49:34] Speaker 04:
Okay, we thank Mr. Grimaldi for his argument.

[00:49:37] Speaker 04:
Mr. Burney, you have three minutes of time.

[00:49:40] Speaker 05:
Thank you, Your Honor.

[00:49:41] Speaker 05:
Let me briefly address 3.2500B again, and then I'm going to very quickly address two of the other rules.

[00:49:49] Speaker 05:
I think this court's argument has underscored some of the difficulties with the rule at issue here and why it should be vacated.

[00:49:59] Speaker 05:
But I just want to say two other things on that score.

[00:50:03] Speaker 05:
We think that the statutory language here is clear that Congress intended that both within a year and outside of the year timeframe, that individuals would have the right to file supplemental claims without regard to whether they were pursuing federal court appeals.

[00:50:18] Speaker 05:
But if this court thinks that there's any ambiguity in that, I think it's important here that the court would employ the pro-veteran canon

[00:50:27] Speaker 05:
to read any ambiguity in favor of the veteran.

[00:50:31] Speaker 05:
Here, I understand that the government now to acknowledge that there are circumstances in which individuals could concurrently be pursuing federal court appeals and supplemental claims.

[00:50:42] Speaker 05:
We think the right reading is that Congress intended that with respect to all veterans, but if there's any ambiguity, we think it should be read in favor of the veteran.

[00:50:51] Speaker 05:
You know, it's worth noting that it has been settled law for at least 20 years that individuals could pursue essentially the equivalent of a supplemental claim, the motion to reopen in the old system while pursuing their federal court appeals.

[00:51:09] Speaker 05:
Congress legislated against the backdrop of that system.

[00:51:12] Speaker 05:
If it did not speak clearly to doing away with that, and we don't think there's any clear indication of that, we think that's a further reason why the statute should be read as we suggest and the rule should be vacated.

[00:51:24] Speaker 05:
Let me briefly touch on two of the other rules.

[00:51:27] Speaker 05:
With respect to 3.2500 D&E,

[00:51:30] Speaker 05:
the lane switching rule.

[00:51:32] Speaker 05:
Here, the agency has basically drawn a line in the sand that says before one year, you can switch lanes and you can switch into any other lane.

[00:51:40] Speaker 05:
But after one year, you can't protect your effective date and the only lane that you can switch into is the supplemental claim lane.

[00:51:50] Speaker 05:
And we think that that is arbitrary here because

[00:51:53] Speaker 05:
The agency really didn't provide, just as in the rule that I think was discussed in the NBA case, the agency provided no reason decision, no reason explanation for why they drew that line at a year.

[00:52:05] Speaker 05:
Nowhere is there an explanation of why you can do it before a year and why not afterwards.

[00:52:11] Speaker 05:
And I think that as a practical matter, this results in significant inefficiencies and harms to veterans.

[00:52:17] Speaker 05:
And I think that's best indicated by the

[00:52:19] Speaker 05:
by the specific facts that are outlined in the Chisholm Declaration, where he talks about one of his clients who, before he was represented by Mr. Chisholm, elected to proceed directly to the BVA via a notice of disagreement.

[00:52:36] Speaker 05:
Eventually, he acquired representation by Mr. Chisholm, and now 15 months have passed since the same plan before the BVA.

[00:52:44] Speaker 05:
With this court's indulgence, I'll just finish my answer, if that's okay?

[00:52:48] Speaker 04:
Yes, go ahead.

[00:52:49] Speaker 05:
Thank you.

[00:52:50] Speaker 05:
So 15 months have passed, and under the rule at issue here, he can no longer withdraw from the BVA and instead switch to the supplemental claim lane, even though that would more expeditiously secure him

[00:53:08] Speaker 05:
his benefits.

[00:53:09] Speaker 05:
And so he's in a very odd situation where if he does nothing and waits for the BVA to issue a decision, then his effective date will be protected.

[00:53:20] Speaker 05:
If he then proceeds under 5110A2D, if he waits for the BVA decision and then files a supplemental claim, his effective date will be protected.

[00:53:31] Speaker 05:
But if he were to switch lanes earlier,

[00:53:35] Speaker 05:
his effective date would not be protected.

[00:53:38] Speaker 05:
And so what that does is it creates significant inefficiencies because it forces individuals to consume agency resources through the completion of the BVA process, even though it would be better for the veteran to switch into another lane, which would get them their results quicker.

[00:53:59] Speaker 05:
So it's inconsistent with the goals of timeliness and efficiency.

[00:54:03] Speaker 05:
And because the agency didn't wrestle with any of those important concerns, we think that the rule should be vacated and sent back.

[00:54:12] Speaker 04:
Okay.

[00:54:12] Speaker 04:
This is a good place to stop.

[00:54:14] Speaker 04:
We thank Mr. Byrne and Mr. Grimaldi for their arguments.

[00:54:17] Speaker 04:
This court's going to go have a five-minute recess.

[00:54:21] Speaker 04:
We'll be back at 12.01.

[00:54:24] Speaker 04:
And I ask everybody to be back ready to go at that time.

[00:54:28] Speaker 04:
Thank you.