[00:00:01] Speaker 05:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:10] Speaker 04:
Good morning, ladies and gentlemen.

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We have four cases on the calendar this morning.

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A veteran's case, a case from the PTAP, a case from the district court, and an employee case from the MSPB.

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The latter will not be argued and will be submitted on the briefs.

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First case.

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is Adelano versus McDonough, 2020, 1579.

[00:00:38] Speaker 04:
Mr. Raven, please proceed.

[00:00:42] Speaker 01:
Thank you, Your Honor.

[00:00:43] Speaker 01:
May it please the Court, good morning.

[00:00:45] Speaker 01:
Sean Raven appearing for the veteran, Mr. Jesus Adelano.

[00:00:49] Speaker 01:
The issue before the Court is whether the Veterans Court properly interpreted 38 U.S.C.

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Section 7107B to require that an appellant personally appear and participate in a hearing before the Board of Veterans' Appeals.

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Mr. Jesus Sattelano is a veteran with the honorable act of service to include service in Vietnam.

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At the time of his scheduled hearing in 2016, Mr. Jesus Sattelano was service connected for post-traumatic stress disorder, which the Department of Veterans Affairs rated as 70% of savings.

[00:01:18] Speaker 04:
Mr. Raven, this is Judge Laurie.

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Let's look at the statute.

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You cited B, but there's also E, E2.

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Does the chairman may afford the appellant an opportunity to participate in a hearing through the use of facilities and equipment in lieu of a hearing held by personally appearing?

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And that would suggest that personally appearing is the default requirement.

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And that is underlined by looking at the regulation that says a hearing will not normally be scheduled

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for receiving, solely for receiving an argument by a representative.

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Why don't we defer to the agency interpreting its own statutes?

[00:02:10] Speaker 01:
Your Honor, the deference is appropriate only if the plain language of the statute is ambiguous.

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And in this case, the plain language of 38 USC section 7107

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D is to simply that a hearing must be afforded to the appellant.

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And the board shall decide any appeal only after affording the appellant an opportunity for a hearing.

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The section of the statute that you are referring to actually involves logistical management.

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It only talks about how a hearing is to be conducted and how a calendar is to be conducted.

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hearings have to be held somewhere.

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They have to be held either in person or they have to be held electronically.

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But that helps to construe what the word appellant means.

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Surely we all know that most litigants are represented by counsel, but this is a case where the agency has a statute and can make its own rules.

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he does more, doesn't it, than just deal with facilities and equipment?

[00:03:28] Speaker 01:
Your Honor, I would disagree with that and say respectfully that that is surely about logistical management.

[00:03:34] Speaker 01:
Consider that Mr. Atalano is a severely disabled veteran.

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The plain reading of the statute allows all veterans to have hearings, regardless of whether or not they're capable of appearing themselves.

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The reading of the statute as interpreted by the Veterans Court would basically prevent any veteran who is disabled, severely disabled, and unable to personally appear and participate, would basically prevent them from having the hearing.

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It would prevent them from having the opportunity to submit testimony from live witnesses.

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And that's what I was getting to in the introduction.

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is that Mr. Dattolano was rated as 70% disabled for a psychiatric disorder.

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And such a disability rated under 38 CFR 4.130, Diagnostic Code 9411, clearly indicates how severe this disability is.

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And in the reply brief, I clearly indicated what Dr. Trippi found in her report

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that Mr. Atalano suffers from memory loss, short and long-term memory loss, has impaired concentration, his mind wanders easily.

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So, in effect, the interpretation by the Veterans Court would basically prevent disabled veterans from having hearings.

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If you must actively participate and be present at a hearing, you're basically preventing anyone who's bedridden physically

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or anyone mentally who is incapable of assisting counsel or even being competent to testify from holding a hearing and introducing sworn testimony from witnesses, whether it's an expert witness like a doctor or a lay witness, like a buddy or even a family member.

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Hearings are just so important.

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It's an opportunity to present

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hearing testimony, sworn testimony to the board member, to the veterans law judge.

[00:05:35] Speaker 05:
Mr. Raven, this is just Toronto.

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Can I just ask you this?

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Assuming that the term appellant just means the party and doesn't really answer the question of what is supposed to happen at the hearing.

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And it just says an opportunity for a hearing.

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Why isn't it left to the agency to determine which in various circumstances of three possible things that could happen at a hearing this hearing is to do?

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One is to provide testimony from the claimant as a witness.

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A second is testimony from other witnesses.

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And the third is argumentation.

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of a legal sort from a representative.

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Why isn't that left to the agency?

[00:06:35] Speaker 01:
Well, the agency is promulgating regulations to interpret the statute, but the plain meaning of the statute indicates that an appellant has the right to a hearing.

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The way that the secretary has interpreted it, if you notice, there is no B. There's only the appellant appearing personally

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for the hearing, and C, which is the appellant's representative under the statute.

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I presume that you're looking at the section of 20.700 that allows the VA or allows the board to hear argument, which is not evidence, which is not testimony.

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The secretary clearly has the right to promulgate regulations, but the argument is that the Veterans Court

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improperly interpreted the statute requires.

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Can I ask you this?

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Do you get any benefit out of the history, some of which I think is recited in the Veterans Court's opinion in Cook, which I think says something about Congress when it wrote 7107B said it was codifying

[00:07:44] Speaker 05:
a regulation that was in place at the time and the regulation in place at the time perhaps made clear by its terms that the hearing was for argument, was for testimony or argument, which would maybe tend to suggest that the personal presence of the veteran was not required.

[00:08:11] Speaker 01:
I would agree with you, and I think that Congress felt that it was so important that veterans have the right to have a hearing to submit testimony, sworn testimony from witnesses as well as from themselves if they wish to appear, that they codified it.

[00:08:26] Speaker 01:
And I agree with what you're saying about the history being beneficial in demonstrating that the Veterans Court interpretation is erroneous.

[00:08:34] Speaker 02:
Mr. Raven, this is Judge Stoll.

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I mean, following up on this same line, do you think that

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The definition of hearing in the agency's regulations, that's at 38 CFR 20, is helpful to you.

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It says hearing on appeal is defined as a hearing conducted after a notice of disagreement has been filed in which testimony is presented concerning the determination or determinations by the agency of original jurisdiction being appealed.

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So it doesn't identify, for example, whose testimony it's talking about.

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I think that that would be helpful.

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And it certainly would be helpful to demonstrate that the veteran's personal appearance and personal participation was not required.

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The whole purpose of the hearing is to elicit testimony.

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And that's clearly in the secretary's regulations.

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And that's at 20.700 B, purpose of a hearing.

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The purpose of a hearing is to receive argument and testimony.

[00:09:36] Speaker 05:
Mr. Raven, what do you do with 20.702D, which I think says that if you ask for a hearing and without advance notice you don't show up, yes, the board will deem the request withdrawn and will cancel it.

[00:10:00] Speaker 01:
Sure.

[00:10:01] Speaker 01:
That's clearly logistical management.

[00:10:03] Speaker 01:
If no party show up, and it's very common at the board,

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in the central office in Washington, D.C.

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for people to request, for persons to request a personal hearing and then not show up on the day of the hearing.

[00:10:15] Speaker 01:
I think that it was almost like 90% of people who request hearings never show up.

[00:10:19] Speaker 01:
And in that case, the secretary... No, I'm sorry.

[00:10:23] Speaker 05:
I'm sorry.

[00:10:24] Speaker 05:
Nobody shows up or just the mayor doesn't show up.

[00:10:27] Speaker 01:
And no, I would say, don't quote me on the statistics, obviously.

[00:10:35] Speaker 01:
This is only anecdotally, and I would say that.

[00:10:37] Speaker 01:
But nobody would show up as opposed to this particular situation where counsel and a medical expert showed up to provide testimony.

[00:10:49] Speaker 01:
I've seen that.

[00:10:50] Speaker 01:
I've gone through my time.

[00:10:52] Speaker 02:
I would like to add a couple more questions.

[00:10:56] Speaker 02:
I have a question for you, which is I know that you put a lot of stock into saying that the appellant is not the claimant alone, I guess.

[00:11:05] Speaker 02:
I'm not sure who you think the appellant is other than the claimant.

[00:11:09] Speaker 02:
I wanted to ask, so the one concern I have with that, among others, is that the regulation that I cited to you about the definition of a hearing also defines the appellant, for example, and says it's a claimant who has filed an appeal

[00:11:26] Speaker 02:
And it defines also a claim, and it's a person who has filed a claim.

[00:11:29] Speaker 02:
I mean, it seems pretty darn clear that, you know, the appellant doesn't include the appellant's attorney.

[00:11:36] Speaker 02:
What were you thinking appellant meant?

[00:11:38] Speaker 02:
Were you thinking that it included the attorney, or was it something more nuanced than?

[00:11:44] Speaker 01:
Your Honor, when the term appellant is used, I think it's used interchangeably to mean both the person, like Mr. Jesus Sotolano,

[00:11:52] Speaker 01:
as well as his representative, if you were to look at 38 USC section 7107D1, in effect at the time of the hearing back in 2016, that provision says an appellant may request that the hearing before the board be held at its principal location or at a facility of the department located within the area served by regional office of the department.

[00:12:16] Speaker 01:
Surely, that doesn't mean only Mr. Jesus Atalano, Mr. Atalano could request that.

[00:12:21] Speaker 02:
It meant that... Attorney, can I interrupt you?

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I think what it means is that the attorney can request on the appellant's behalf and that your argument might be that the attorney may be present at the hearing on the appellant's behalf, but not necessarily that the appellant should be defined to include the appellant's attorney.

[00:12:46] Speaker 01:
I would just point out that

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The way that the statute is written, I think it's consistent to say the appellant means both the attorney and the attorneys, the appellant personally, and the appellant's representative.

[00:12:59] Speaker 02:
I respectfully agree with that.

[00:13:01] Speaker 02:
But let me ask you one more question, which I think is pretty important.

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I read the Veterans Court's decision to rest on two independent bases.

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One is that Section 7107 is unambiguous.

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and requires Mr. Atalano to have been at the hearing.

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And you do clearly challenge this on appeal.

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But there's a second alternative basis that starts at page A9 of the record.

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And the Veterans Court says, assuming Section 7107 is ambiguous and Chevron deference applies, the agency regulations reasonably require that Mr. Atalano attend the hearing.

[00:13:42] Speaker 02:
I don't see in your briefs

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where you've challenged this part of the Veterans Court's holding on appeal.

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Can you address that?

[00:13:52] Speaker 02:
And if you think you have challenged this part of the Veterans Court's decision, could you show me where that is in your blue brief?

[00:14:02] Speaker 01:
Your Honor, I did not challenge that.

[00:14:04] Speaker 01:
I did not challenge the argument that Chevron deference would require deference to the Secretary's regulations.

[00:14:11] Speaker 01:
And the reason for that is I just

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is that Mr. Altalano's position is that the plain language of the statute is clear.

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It clearly requires the appellant, including the appellant's attorney to present testimony, whether from the appellant or from the appellant's witnesses.

[00:14:26] Speaker 01:
And the court did not, the Veterans Court, the Veterans Court's decision is not based on chevron deference, it's based on the plain meaning of the statute.

[00:14:34] Speaker 02:
So hypothetically, if I were to disagree with you on that,

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and I were to think that it were ambiguous, then you have not challenged the Veterans Court's decision.

[00:14:46] Speaker 01:
I have not challenged that alternative or that because that wasn't the basis for the Veterans Court's decision.

[00:14:55] Speaker 01:
And I respectfully say that.

[00:14:57] Speaker 02:
It says any alternative.

[00:15:00] Speaker 02:
That's their alternative holding.

[00:15:05] Speaker 01:
I understand and I respectfully would argue that it's a plain meaning issue and it's the issue of the plain meaning.

[00:15:11] Speaker 01:
I did not get into Chevron deference simply because I understand that it's very, very difficult to demonstrate that there's under the standard to show that deference shouldn't be according to the Secretary.

[00:15:30] Speaker 02:
Okay.

[00:15:30] Speaker 02:
Thank you.

[00:15:32] Speaker 04:
Thank you, Mr. Raven.

[00:15:34] Speaker 04:
You've essentially consumed your time answering questions, but we'll give you three minutes back for a bottle.

[00:15:41] Speaker 04:
Ms.

[00:15:42] Speaker 04:
Bick.

[00:15:47] Speaker 00:
Thank you, Your Honor.

[00:15:48] Speaker 00:
May it please the Court, we request that this Court affirm the decision of the Veterans Court.

[00:15:54] Speaker 00:
Importantly, and as Judge Stoll pointed out, the Veterans Court had two alternative bases for its finding.

[00:16:01] Speaker 00:
I think what's key here is that even if this court determines, in contrast to the Veterans Court, that the statutory language does not unambiguously favor the Veterans Court's interpretation, the regulations nonetheless make clear that Mr. Atalano was present or required to be present at his own hearing, at least in the absence of a prior good cause notification, which he clearly and undisputedly did not make.

[00:16:28] Speaker 00:
And again, I think it's important to note, as Judge Sol just noted, that Mr. Atalano is not challenging that the VA Regulation 20.700 is a permissible construction of the statute should the court read it to be ambiguous.

[00:16:45] Speaker 00:
And this is especially important because Section 7105 does explicitly delegate authority to

[00:16:53] Speaker 00:
the VA to prescribe regulations regarding hearing and representation.

[00:16:59] Speaker 05:
Ms.

[00:17:00] Speaker 05:
Baez, this is Judge Toronto.

[00:17:03] Speaker 05:
I wouldn't have thought actually that the 700 regulation actually answers the question, but why doesn't the 702D answer the question?

[00:17:14] Speaker 05:
Just to try to be clear about the first part, I don't see anywhere in 700 that says

[00:17:23] Speaker 05:
if you do not ask, if you do not appear personally, you shall not get a hearing.

[00:17:30] Speaker 05:
I don't think words with that meaning ever appear, including in 700A, which says if you do appear, you get one, but if is different from only if.

[00:17:46] Speaker 00:
Yes, Your Honor.

[00:17:47] Speaker 00:
I agree and understand.

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And I think that reading 700 and 702 both lead to a clear understanding that Mr. Adelano would have been required to attend this hearing, at least in the absence of good cause.

[00:18:01] Speaker 00:
And the reasons are as following.

[00:18:03] Speaker 00:
For one, Mr. Adelano states that

[00:18:08] Speaker 00:
the statute does not uh... what he states that the statute clearly uh... does not require an appellant to show at his own hearing uh... but in that case he is conflating or combining appellant and appellant representative into the word appellant and again i think at best the word appellant would be ambiguous even though i agree with um... Judge Stull who was pointing to the definition of the appellant does appear to refer to the veteran or claimant but the regulation itself uh...

[00:18:37] Speaker 00:
in subsection 700 and sprinkled throughout part 20 of the regulations does actually make a very clear distinction between an appellant and an appellant's representative.

[00:18:49] Speaker 00:
Therefore, undercutting Mr. Atalano's argument that the appellant can encompass the representative, subsection A, subsection D of 700 distinguishes between the appellant.

[00:19:02] Speaker 05:
I'm hearing what you're saying is not really answering my question.

[00:19:05] Speaker 05:
The appellant is the party.

[00:19:10] Speaker 05:
Now, in this context, the party is always a natural person, and so it's the party.

[00:19:15] Speaker 05:
If you said appellant in the federal rules of appellate procedure, it could be a corporation, and the corporation would never have to appear personally.

[00:19:23] Speaker 05:
So I'm not quite sure, and lawyers or representatives represent their parties.

[00:19:29] Speaker 05:
And there's lots of language in all kinds of legal context that says the appellant argues.

[00:19:34] Speaker 05:
Well, the appellant may never have even read the pleading or the brief.

[00:19:39] Speaker 05:
You mean the representative is speaking on behalf of the party.

[00:19:42] Speaker 05:
So I'm just not sure how much mileage one gets out of a dispute about the meaning of the appellant.

[00:19:50] Speaker 05:
It's plainly the claimant who is the party.

[00:19:53] Speaker 05:
But then the question is, where do the regulations say

[00:19:57] Speaker 05:
that person must appear in person at the hearing.

[00:20:04] Speaker 00:
Your Honor, the regulation does not say that that person must appear in person, but it does state in subsection B that the purpose of the hearing is to receive not this argument but testimony and that it is contemplated that the appellant and witnesses, if any, will be present.

[00:20:22] Speaker 00:
And that accords with

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Section 7107E, which talks about the appellant personally appearing.

[00:20:29] Speaker 05:
So I think between 7107E... I'm not quite sure what to do with this language of it is contemplated that.

[00:20:37] Speaker 05:
The Veterans Court first said that the statute unambiguously requires the appearance.

[00:20:45] Speaker 05:
And let's put that aside for an appearance in the sense of personal presence of the individual.

[00:20:53] Speaker 05:
And then the regulations say, well, sometimes we're not going to have it if you don't appear.

[00:21:02] Speaker 05:
But where does the regulation say if you do not appear, and this is, I think, what the second part of the Veterans Court opinion seems to say, and maybe the board said, that we just have a rule.

[00:21:18] Speaker 05:
If you don't appear, you are not entitled

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to have any kind of hearing, including for the other two purposes, argument from a representative or non-party witness testimony.

[00:21:31] Speaker 00:
Your Honor, I think that the board decision actually, I think the Veterans Court maybe brushed over the issue of the good cause issue, holding, I think, just that Mr. Adelano had not even established good cause, so it sort of didn't matter in that case.

[00:21:47] Speaker 00:
But the board, I think, did

[00:21:49] Speaker 00:
state in its decision that if an appellant had shown good cause in advance for why he could not appear, I think, in accordance with 700B and 702D, that the hearing may have been able to go on.

[00:22:05] Speaker 00:
So I think the board did address that.

[00:22:07] Speaker 00:
And so I think that our reading of 700B, especially taken in conjunction with 702D, which Your Honor has cited,

[00:22:16] Speaker 00:
contemplate basically that the appellant is expected to be present.

[00:22:20] Speaker 00:
I understand Your Honor's position that it's not an only if, but that the appellant is expected to be present, but there is

[00:22:28] Speaker 00:
I don't know what the exact term is, exception, local room, regarding that there may be good cause that could be shown for the appellant not being present and that a hearing will not normally be scheduled solely for the purpose of receiving argument and maybe for the appellant not to be there.

[00:22:47] Speaker 00:
But there does seem to be some space in the regulation for situations where an appellant has demonstrated good cause.

[00:22:54] Speaker 00:
But here, Mr. Adelano, it's undisputed that Mr. Adelano never showed good cause before the hearing, despite the board's, I think, multiple attempts to... This is Judge Laurie.

[00:23:07] Speaker 04:
I saw it argued that the board has limited resources and wants to ration them to deal with people who are going to show up and argue

[00:23:23] Speaker 04:
can contribute to the argument of their cases.

[00:23:26] Speaker 04:
Are there any data in the record to show what percent of appeals have hearings and what don't so that we might have a feeling for how scarce the resources are and whether that's really a relevant consideration?

[00:23:47] Speaker 00:
Your Honor, I'm not sure that there is any data in the record that shows

[00:23:51] Speaker 00:
what percentage of board appeals go to a hearing.

[00:23:58] Speaker 00:
I think that the board, to my understanding at least, does act in accordance with 707B, which says that the board will essentially afford the appellant an opportunity for a hearing.

[00:24:09] Speaker 00:
And so I would expect that appellants who request hearings, and that seems to be what happened in this case, will be given the opportunity for a hearing, as Mr. Atalano was, and in fact even the opportunity to reschedule the hearing multiple times.

[00:24:23] Speaker 00:
And I think the Veterans Court also does talk about, and this is

[00:24:28] Speaker 00:
I think sort of sideways to your honor's question that, at least in terms of numbers and percentages, the Veterans Court cited to the Cook case, which had a good bit of legislative history, talking about the purpose of a board hearing and that giving the board member the opportunity to personally interact with the appellant was the purpose of the board hearing and actually did lead to a larger percent

[00:24:55] Speaker 02:
Ms.

[00:24:56] Speaker 02:
Bae, I thought that when I read that opinion, I thought it said that the purpose of the hearing was to give the veteran an opportunity to present his case live before the board.

[00:25:04] Speaker 02:
And there was also some discussion about how statistically your chances of success seem to increase when you have an opportunity to present live witnesses, not just the veteran.

[00:25:15] Speaker 02:
I did not read it as you are saying it was for the purpose of the board to be able to ask questions of the veteran.

[00:25:22] Speaker 00:
Your Honor, I was taking from the quotation from the Cook case, where I think the statistics, Your Honor, is referring to states that an appellant's personal appearance before the board makes a significant difference in achieving favorable resolution of the claim.

[00:25:38] Speaker 00:
And we were reading that to state that the appellant personally being there before the board was what made the difference.

[00:25:45] Speaker 00:
And it does also quote from the Arneson case, which states that it's

[00:25:50] Speaker 00:
the veterans one opportunity to personally address those who will find facts and make credibility determinations and that the board is, the hearing is also so that the board can give claimants the information necessary for the development of their claims.

[00:26:06] Speaker 00:
And I know it's not in our group, but I- Ms.

[00:26:11] Speaker 02:
Hayes, can I just turn up the question?

[00:26:13] Speaker 02:
Is, here Mr. Atulano since 2010 has had a 70% disability rating for PTSD and I believe a TDIU.

[00:26:21] Speaker 02:
Why wouldn't that be good cause for why he doesn't have to appear in court personally and instead could be represented by his counsel?

[00:26:31] Speaker 00:
Well, Your Honor, first, I would say that I think that that's a factual question.

[00:26:36] Speaker 00:
But secondly, I don't think we ever have stated or argued and I don't think the Veterans Court has ever stated or argued

[00:26:42] Speaker 00:
that Mr. Adelano's TDIU or 70% disability could never be good cause or is impact not good cause.

[00:26:50] Speaker 00:
I think that what the Veterans Court was saying and what the board was saying below that is that Mr. Adelano had not shown good cause and CFR.

[00:26:59] Speaker 00:
I saw that.

[00:27:00] Speaker 00:
I read that.

[00:27:01] Speaker 02:
I understand.

[00:27:02] Speaker 02:
But the framework, you know, maybe the framework that they applied was wrong because they said there wasn't good cause without any explanation.

[00:27:10] Speaker 02:
of why there wasn't good cause, for example.

[00:27:13] Speaker 02:
You know, they just said no good cause without, and just lumped him in with five other people who were also by the same council without looking at his individual circumstances and determining whether he had good cause for not being present.

[00:27:31] Speaker 02:
I don't see any analysis whatsoever of his 70% PTSD and TDIU rating from 2010

[00:27:39] Speaker 02:
in their analysis of good failure to show good cause?

[00:27:44] Speaker 00:
Your Honor, I agree that there was not a specific factual analysis as to Mr. Atalano's disability level vis-a-vis good cause.

[00:27:53] Speaker 00:
Of course, there wasn't the board decision itself, but I think that both the board and the Veterans Court were acting in accordance with the regulation by sort of, I think they were stating essentially that Mr. Atalano had not shown good cause, had not

[00:28:08] Speaker 00:
Where did they submit anything?

[00:28:12] Speaker 00:
Well, in 700 B and B basically states that requests for representatives to personally appear alone may be granted if

[00:28:23] Speaker 00:
that a cause is shown and whether a good cause has been shown will be determined by the presiding member.

[00:28:28] Speaker 00:
I think that the board and the Veterans Court would have been presuming that the good cause being shown meant that somebody had to make the showing of good cause, whether it be the appellant or the representative.

[00:28:40] Speaker 00:
And here, again... Yes.

[00:28:44] Speaker 02:
What do you make of the regulations definition of hearing, which is quite broad?

[00:28:49] Speaker 02:
I mean, I think here that, to me,

[00:28:52] Speaker 02:
The question of who is the appellant only goes so far.

[00:28:56] Speaker 02:
I don't think that's the right word to focus on here in 7107, and a better word to focus on is hearing.

[00:29:02] Speaker 02:
And what about how the regulation defines hearing to include providing the testimony of witnesses?

[00:29:14] Speaker 02:
There's also other regulations that say that a claimant can be represented by a

[00:29:21] Speaker 02:
an attorney who has certain credentials, why isn't that broad definition of hearing also something to be taken into account when looking at the regulations and understanding whether these regulations actually contemplate that you're not entitled to a hearing at which your representative would question your expert witness unless you are personally present as well?

[00:29:49] Speaker 00:
Well, Your Honor, I think that I don't think that anything in part or subpart 700 is in conflict with the broader definition of the hearing, which can include argument and questioning of other witnesses.

[00:30:03] Speaker 00:
I think that that subsection B of part 700, especially in conjunction with, as Judge Flory pointed out, subsection E of the statute, contemplate that the appellant will personally be present.

[00:30:17] Speaker 00:
However,

[00:30:18] Speaker 00:
The regulation also states that other witnesses are contemplated to be present if there are any other witnesses and that it is also for argument.

[00:30:27] Speaker 00:
So I don't think that the regulation, the requirements of the regulation that the appellant is expected to be present precludes there being arguments from the representative and testimony from other witnesses, but it does seem to center the appellant's presence and testimony of the appellant in that I think accords with

[00:30:46] Speaker 00:
the history alluded to by the Veterans Court.

[00:30:49] Speaker 00:
And again, here, it does even give the caveat that a hearing can be used just to, if I may just finish my sentence, personally present argument if good cause is shown.

[00:31:00] Speaker 00:
Sorry, Your Honor.

[00:31:01] Speaker 02:
No worries.

[00:31:02] Speaker 02:
We were asking you a lot of questions, and we appreciate your answer.

[00:31:06] Speaker 02:
I would like to ask one last question.

[00:31:09] Speaker 02:
Go ahead.

[00:31:10] Speaker 02:
My question is, you said earlier, you said that the regulation requires good cause.

[00:31:16] Speaker 02:
in order to be able to have the appellant not present for the hearing.

[00:31:23] Speaker 02:
But when I look at 20.700B, it seems to differentiate between argument and testimony.

[00:31:29] Speaker 02:
Good cause seems to only apply to attorney argument.

[00:31:33] Speaker 02:
When that sentence about good cause is referring to when there's just going to be attorney argument.

[00:31:40] Speaker 00:
Do you disagree with that?

[00:31:46] Speaker 02:
It says press for, it says alone to personally present argument to members of the board may be granted if good cause is shown.

[00:31:55] Speaker 02:
That doesn't relate to hearings, right?

[00:31:58] Speaker 02:
Where testimony can be provided.

[00:32:01] Speaker 02:
It's just for appearances alone to personally present argument as opposed to testimony.

[00:32:08] Speaker 00:
It does appear to

[00:32:10] Speaker 00:
be specifically cabin to requests by appearances by representatives alone, but subsection D regarding informal hearing does in fact provide for what would normally happen in situations where the appellant cannot or does not

[00:32:28] Speaker 00:
wish to appear, and that's informal arguments by audio cassette.

[00:32:31] Speaker 02:
And so I think that, again, buttresses 700... It doesn't say anything about whether a good cause has to be shown for a hearing involving testimony.

[00:32:40] Speaker 02:
Subsection D does not, right?

[00:32:43] Speaker 00:
It does not, but it does indicate that if the appellant cannot or does not wish to appear, then the recourse is for the authorized representative to present oral argument by audio cassette without personally appearing.

[00:32:56] Speaker 00:
But again, just to conclude, I'm of course happy to answer.

[00:33:00] Speaker 05:
Can I just ask one question?

[00:33:03] Speaker 05:
Do I understand correctly that the statutory provision and or regulations that are at issue in this case have been superseded in some way by the 2017 Act and the 2019 regulations under them?

[00:33:18] Speaker 05:
And if that's right, how much of what we would be deciding in this case

[00:33:24] Speaker 05:
would answer the questions under the superseding statutory and regulatory provisions?

[00:33:33] Speaker 00:
Your Honor, my understanding is that a lot of this has been superseded or at least updated pursuant to the Modernization Act of 2017.

[00:33:43] Speaker 00:
I have read the new statute and regulations.

[00:33:47] Speaker 00:
I'm not intimately familiar with them.

[00:33:50] Speaker 00:
I do believe that they have

[00:33:52] Speaker 00:
excuse me, Your Honor, at least the statute has made it easier for the appellant to participate in a hearing.

[00:33:59] Speaker 00:
And interestingly, this actually predated the pandemic by allowing the appellant to participate in a hearing completely remotely.

[00:34:07] Speaker 00:
So instead of having to go to a VA facility at all, I believe that the new statute allows for the appellant to participate from his home, which would, I think, take care of at least some of the issues of appellants who are too disabled to appear.

[00:34:22] Speaker 00:
unfortunately speak directly as to whether, like what else specifically is there in the statute and regulation that could affect Mr. Atalano's case.

[00:34:32] Speaker 00:
But there has been a fair amount of rejiggering and rehaul of both 7107 and CFR 700, Your Honor.

[00:34:40] Speaker 04:
One further question, Ms.

[00:34:43] Speaker 04:
Bucke.

[00:34:44] Speaker 04:
Doesn't the board's

[00:34:48] Speaker 04:
interpretation being that a disabled veteran doesn't get a hearing?

[00:34:53] Speaker 04:
Because if he can't appear, he doesn't get a hearing?

[00:34:59] Speaker 00:
Your honor, I think that your honor's question is a little bit difficult to answer in just the generic black or black and white yes or no answer.

[00:35:08] Speaker 00:
I think that it does not, if your honor is referring to an appellant who's

[00:35:13] Speaker 00:
say, undisputedly too disabled to participate in a hearing.

[00:35:17] Speaker 00:
I think that that gets into a lot of gray area that's unfortunately beyond what we're dealing with in Mr. Atalano's situation.

[00:35:24] Speaker 00:
I think there are regulations and statutes that otherwise provide for next friends or fiduciaries to stand in for claimants, and I think that would obviously include a whole host of other details and questions, which would be difficult to get into in a hypothetical, but that's certainly one

[00:35:42] Speaker 00:
avenue for there being able to be fact witness testimony at a hearing where the next friend or fiduciary might stand in for the claimant or appellant.

[00:35:52] Speaker 00:
As far as the sort of other part of Your Honor's question, I don't think that it would still per se eliminate the ability for a hearing because 700 and

[00:36:10] Speaker 00:
700 B and D do appear to carve out at least exceptions in which argument can be presented at a live or videotape hearing by the appellant's representative.

[00:36:24] Speaker 00:
And I think the board stated that good.

[00:36:28] Speaker 04:
I think we have your answer.

[00:36:31] Speaker 04:
Thank you, Mr. Raven.

[00:36:32] Speaker 04:
We gave a lot of extra time to Ms.

[00:36:34] Speaker 04:
Bae because we asked questions

[00:36:37] Speaker 04:
So you can take your full five minutes for rebuttal if you need us.

[00:36:44] Speaker 01:
Thank you, Your Honor.

[00:36:46] Speaker 01:
I would like to just bring two points to the conclusion and rebuttal.

[00:36:51] Speaker 01:
The first point would be to talk about Mr. Atalano and factually what his circumstances are and to circle back second to Judge Laurie's question to the Secretary's Council, the Government's Council.

[00:37:06] Speaker 01:
Basically, under the Veterans Court interpretation, a disabled veteran who can't appear doesn't get a hearing.

[00:37:13] Speaker 01:
That's very clear.

[00:37:15] Speaker 01:
And in footnote five of the Veterans Court decision, it quite clearly says that there is no authority for the proposition that when a veteran can't appear, when an appellant can't appear, there is no provision for hearing.

[00:37:29] Speaker 01:
There is no discretion.

[00:37:31] Speaker 01:
The board has no discretion to grant a hearing.

[00:37:33] Speaker 01:
There's no good cause for that.

[00:37:35] Speaker 01:
even under the Secretary's office.

[00:37:37] Speaker 04:
But he still gets an argument with representation, so maybe he doesn't necessarily get an oral argument, a hearing, but that doesn't mean he lacks due process.

[00:37:55] Speaker 01:
No, Your Honor, I respectfully disagree with you because

[00:37:57] Speaker 01:
There is no guarantee for argument.

[00:38:00] Speaker 01:
There is only if it's only if good cause is shown and only is that the discretion of the board member.

[00:38:06] Speaker 01:
But further, oral argument is different than hearing where you get to present testimony from a witness, such as Dr. Trippi, who has examined the veteran and is prepared to provide answers and responses to questions.

[00:38:18] Speaker 01:
And lay testimony is just so important and so critical in these cases.

[00:38:23] Speaker 01:
And for example, in this case, Mr. Atalano's appeal was denied

[00:38:27] Speaker 01:
on the basis of the board member finding and provide actually adjudicating and finding no probative value to Dr. Trippi's written testimony because it contained answers that were not questioned or it contained information that didn't square with the veteran's law judge's findings.

[00:38:45] Speaker 01:
So again, Judge Laurie's question, if a disabled veteran can't appear under this interpretation, if they cannot appear and they cannot participate

[00:38:57] Speaker 01:
in the hearing, they get no hearing.

[00:38:59] Speaker 01:
There will be no hearing.

[00:39:01] Speaker 01:
Zero.

[00:39:01] Speaker 01:
I mean, that's it.

[00:39:02] Speaker 01:
It's finished.

[00:39:03] Speaker 01:
But circling back finally to Mr. Atalano's conditions, he was 70% disabled under a psychological disability, PTSD.

[00:39:13] Speaker 01:
VA found that he had that disability.

[00:39:15] Speaker 01:
And further, they found he was totally disabled and entitled to individual unemployability.

[00:39:21] Speaker 01:
Clearly, even Dr. Trippi found that he suffered from these impairments.

[00:39:26] Speaker 01:
Under 38 CFR 4.130, Diagnostic Code 9411, a 70% disability rating is assigned by VA when they find that there are deficiencies in most areas caused by symptoms such as obsessional rituals with interfere with activities, speech intermittently illogical, obscure or irrelevant, near continuous panic or depression.

[00:39:48] Speaker 01:
This is a severe disability.

[00:39:51] Speaker 01:
In short,

[00:39:51] Speaker 01:
And to conclude, the Veteran's Court interpretation is erroneous.

[00:39:58] Speaker 01:
It's not a correct interpretation of the plain meaning of the statute.

[00:40:01] Speaker 05:
Mr. Craven, this is Judge Truendo.

[00:40:02] Speaker 05:
Can I just ask one question, I think, about what you were just talking about.

[00:40:10] Speaker 05:
Suppose that the Veteran's Court were correct that unambiguously 7107B

[00:40:21] Speaker 05:
gives no right to a hearing unless the claimant appears in person.

[00:40:33] Speaker 05:
Why would that preclude the secretary from giving such a right anyway?

[00:40:41] Speaker 05:
It wouldn't be contrary to

[00:40:44] Speaker 05:
to the statute, it just would be in no way authorized by that provision.

[00:40:49] Speaker 05:
Is it right that the Secretary cannot add to the statutory rights in favor of the veteran?

[00:40:58] Speaker 01:
If that were to happen, Your Honor, I think that you would see it applied unevenly throughout so that some veterans, some appellants who weren't able to appear would get hearings.

[00:41:08] Speaker 01:
and others would not.

[00:41:10] Speaker 01:
Some person like me, Mr. Jesus Sattelano, would be left wondering why wasn't he allowed to present expert testimony, but somebody else was?

[00:41:18] Speaker 01:
And I think that there's no wiggle room from the court's interpretation.

[00:41:22] Speaker 01:
And looking at footnote five, I just think that there's no opportunity for the secretary to deviate from the court's interpretation that an appellant must be physically present and must participate in the hearing in order to get a hearing.

[00:41:39] Speaker 01:
Thank you.

[00:41:40] Speaker 01:
Thank you.

[00:41:42] Speaker 04:
Thank you, Mr. Raven.

[00:41:44] Speaker 04:
We appreciate the argument, counsel, and the case is submitted.