[00:00:00] Speaker 01: The next case for argument is 21-1817, Bonner versus McDonough. [00:00:03] Speaker 01: Mr. Bonner, don't get too comfortable. [00:00:08] Speaker 01: We're ready for you whenever you are. [00:00:10] Speaker 02: Thank you. [00:00:11] Speaker 02: May it please the court, counsel? [00:00:14] Speaker 02: Public policy, law in considerations of moral duty support, providing dependency and indemnity compensation to the families of service members who are fatally injured in the line of duty. [00:00:27] Speaker 02: A serviceman or service person can follow a call to military service that is frequently very dangerous with a clear conscience that if the cost of his service is his life, his spouse and children will be taken care of by laws administered by the Veterans Administration. [00:00:47] Speaker 02: The life, career, and service of the veteran in this case, Emmett Bonner, whose 37 years of service in the Navy, including combat in World War II, [00:00:58] Speaker 02: Korea and Vietnam is a credit to the greatest generation. [00:01:02] Speaker 02: He died in 1975 at age 57, three years after his retirement of a covered herbicide disease and of exposure to ionizing radiation at an H-bomb detonation in Wichita. [00:01:21] Speaker 02: The veteran's court below stated, quote, the veteran almost certainly died from NHL. [00:01:28] Speaker 02: That's at appendix five, long nine. [00:01:31] Speaker 02: The protection Congress has provided for veterans and their families was erroneously denied to Emmett Bonner's widow by the VA for 20 years. [00:01:41] Speaker 01: Our time is limited. [00:01:44] Speaker 01: I appreciate and respect everything that you've said so far, but we're still constrained by our case law and the law in this area. [00:01:52] Speaker 01: So let me go directly to that, which is, if we're talking about a CUE, clear and unmistakable error, [00:02:00] Speaker 01: It's kind of an uphill battle for everyone because the standard requires the record based, the era be based on the record and the law that existed at the time. [00:02:12] Speaker 01: And I think the time here is 1976. [00:02:15] Speaker 01: So even the evidence, I guess I'm not clear on what your argument is as to why even the possible misdiagnosis here seems to be based on a report in 1995. [00:02:30] Speaker 01: That report didn't exist in 1976. [00:02:32] Speaker 01: So even if we accept that report, [00:02:37] Speaker 01: How can we say that the RO made a clear and unmistakable error in 1976? [00:02:44] Speaker 01: They're familiar with the CUE law, and that's what we're bound by. [00:02:50] Speaker 02: Yes, Your Honor. [00:02:51] Speaker 02: We also have raised the issue of the claim is still open due to a constitutional error of lack of notice. [00:03:00] Speaker 01: I understand that. [00:03:02] Speaker 01: If you were not to prevail on that lack of notice issue, then you agree that under CUE law, you would not have a viable claim here. [00:03:11] Speaker 02: No, I don't agree with that at all, Your Honor. [00:03:13] Speaker 02: The facts that were found at the RO in 1976 were found by violating a statute or rule 3.312, which is a procedural rule that requires [00:03:32] Speaker 02: the Veterans Administration, defined cause of death, exercising sound judgment, looking at all the facts and considering especially autopsy reports. [00:03:43] Speaker 02: And if the court looks, I believe it's page 35 of the appendix, 36, it's the rating decision that was made then that clearly violates 3.312. [00:03:56] Speaker 02: There's no showing at all. [00:03:59] Speaker 02: that the entire files looked at. [00:04:01] Speaker 02: There's no mention at all, for example, of the exposure to ionizing radiation. [00:04:06] Speaker 02: There's no discussion in the... Were those just for my own clarification? [00:04:10] Speaker 01: I really don't know what the answer is. [00:04:11] Speaker 01: Were those regulations in effect in 1970? [00:04:14] Speaker 02: As a matter of fact, that's one of the points I'd actually like this Court to address. [00:04:18] Speaker 02: Yes, in 1961. [00:04:19] Speaker 02: 1961 is as far back as I could trace, 3.312. [00:04:25] Speaker 02: And that regulation [00:04:28] Speaker 02: It says that the cause of death shall be determined by exercise of sound judgment. [00:04:37] Speaker 02: So it's a procedural mandate on the Veterans Administration to exercise sound judgment without request of speculation considering [00:04:45] Speaker 02: all the facts of the case, particularly autopsy reports. [00:04:48] Speaker 02: None of that was done. [00:04:50] Speaker 03: So what was it in the record that existed that you're saying that the VA did not consult and consider in 1976? [00:04:58] Speaker 03: That would have made it undebatably clear that the veteran had died from non-hotcakes. [00:05:08] Speaker 02: I would say it's the National Naval Medical Center's autopsy report has in it [00:05:15] Speaker 02: Take a look, please, at page 21 of the government's brief. [00:05:20] Speaker 02: Excuse me. [00:05:20] Speaker 02: I'm sorry. [00:05:21] Speaker 02: I'm not the government anymore. [00:05:24] Speaker 02: Of the petitions or appellants brief. [00:05:27] Speaker 02: Page 21. [00:05:28] Speaker 02: I've listed there a- Is there something in the JA? [00:05:33] Speaker 02: Appendix 32 to 33 is where it is. [00:05:39] Speaker 02: Well, the document itself, the National Naval Medical Center's autopsy protocol, [00:05:45] Speaker 02: is at appendix 32 to 33. [00:05:46] Speaker 02: The excerpted pieces from it that I listed with bullet points are on page 21 of our brief. [00:05:56] Speaker 02: And it is uncontroverted in the record that all of these facts exist. [00:06:02] Speaker 02: Our point is that 3.312, as of 1961, requires sound judgment, considering especially autopsy reports. [00:06:12] Speaker 02: Now, what happened there is it's appendix 30. [00:06:20] Speaker 01: But is your point, I'm not quite clear what your point is. [00:06:24] Speaker 01: If they had looked at [00:06:26] Speaker 01: You're clear they didn't look at the autopsy report. [00:06:29] Speaker 01: And if they were to have looked at this report, it's indisputably clear that they would have reached the diagnosis that was offered in 1999. [00:06:39] Speaker 02: They would have found that persuasive evidence exists that non-Hodgkin's lymphoma [00:06:47] Speaker 03: uh... was uh... suffered by the veteran indeed in this court was found that it's uh... almost certain i mean if you want to get a twenty six it talks about most likely possibility being hodgkin's disease right yes it would be the problem so where in the in this same report does it really clear and decisive that they meant when they said most likely hodgkin's disease wasn't really what they meant what they really meant to say was not hodgkin's disease [00:07:16] Speaker 02: The problem, if I may, with that analysis is that it's that binary either-or analysis that does not take into account the first line of 3.312, which is that contributory causes of death also are sufficient for a service connection. [00:07:35] Speaker 02: So whether or not he had Hoskins' disease, that's fine. [00:07:39] Speaker 02: As we pointed out in the court below and every chance we've gotten, [00:07:43] Speaker 02: It's not an either or inquiry. [00:07:45] Speaker 02: Just to be really simple-minded, you can have both? [00:07:49] Speaker 02: Absolutely. [00:07:49] Speaker 02: It's called composite lymphoma. [00:07:52] Speaker 02: I have documents for the National Cancer Institute, National Institute of Health, that I've cited previously. [00:07:58] Speaker 01: So what in this autopsy report are you saying indisputably establishes? [00:08:04] Speaker 02: Okay, the fact that the majority of the cells are bizarre cells not totally characteristic of Reed Sternberg cells. [00:08:11] Speaker 02: I'm sorry, are you reading from A32? [00:08:13] Speaker 02: I'm reading from page 21 of our brief. [00:08:16] Speaker 02: I could get appendix 32 and find it in there too. [00:08:19] Speaker 01: Appendix 32? [00:08:20] Speaker 01: What page are you briefed them usually? [00:08:24] Speaker 02: It's on page 21 of our opening brief, which I have excerpted this. [00:08:29] Speaker 02: There was an entire litany here of reasons that the diagnosis of Hodgkin's disease [00:08:39] Speaker 02: uh... is uh... basically self-impeaching at the at the side of the lymphomas are going to be hodgkins or non-hodgkins there is a ton of evidence here there was non-hodgkins non-hodgkins can be considered as a a contributory cause of death none of the items here on page twenty three have been controverted by the government uh... and our appeal is that the VA was required [00:09:03] Speaker 02: to particularly consider autopsy reports and didn't do it at all. [00:09:10] Speaker 02: If you look at page 34 of the record, there is the rating decision. [00:09:22] Speaker 02: The rating decision makes no mention at all of the autopsy protocol, despite being mandated to do so. [00:09:33] Speaker 02: So what we're saying is that the facts that the VA used were procedurally, they didn't follow the right procedure to do it. [00:09:40] Speaker 02: And if they had, they would have seen all of these reasons, which I can enumerate. [00:09:46] Speaker 01: Let me move you on, because time is limited to kind of the second piece of your argument, which is the failure of notice, the lack of notice. [00:09:55] Speaker 01: Yes. [00:09:55] Speaker 01: If we agree with the Veterans Court that the universe of documents that were sufficient to provide notice [00:10:03] Speaker 01: were the 21-523, the ARRO decision from 1976, the notice of appellate rights. [00:10:13] Speaker 01: What is missing in these documents? [00:10:16] Speaker 02: What's missing is the rating decision, which is on page 34 of the appendix. [00:10:23] Speaker 02: That rating decision was never served. [00:10:26] Speaker 02: on the widow. [00:10:29] Speaker 02: The first time the widow became aware of it was in 1995. [00:10:33] Speaker 02: We raised this with the Veterans Court and with the government. [00:10:39] Speaker 02: The government has never provided any proof at all or even any contradiction that this document was not served on the widow. [00:10:49] Speaker 03: The VA form at 836 [00:10:52] Speaker 03: indicates that the rating occurred on February 9th, 1976. [00:10:57] Speaker 02: Yeah, that's the top right-hand corner here. [00:11:00] Speaker 03: Right. [00:11:01] Speaker 03: So it does provide a date on... Sure. [00:11:05] Speaker 02: They rated it and they stuck it in their file. [00:11:07] Speaker 02: They sure didn't give it to us. [00:11:09] Speaker 03: But I guess what we're trying to figure out is, isn't that enough for at least that component of what we've held is a required element for sufficient notice of denial of a claim? [00:11:23] Speaker 02: A notice has to be delivered to the widow. [00:11:28] Speaker 02: The widow never saw this document. [00:11:30] Speaker 03: Right. [00:11:30] Speaker 03: And well, I don't recall anything from our case law that [00:11:34] Speaker 03: demands that the actual rating form be submitted to the claimant. [00:11:40] Speaker 02: I see your point. [00:11:42] Speaker 03: With respect to that... Just the date of the decision has to be communicated as well as the fact that the claim had been denied and the basis for the denial as well as appeal rights. [00:11:53] Speaker 02: The only evidence of that, which respectfully... Take a look, please, at appendix page 36. [00:12:01] Speaker 02: It would be useful to see that. [00:12:03] Speaker 03: This is the VA form. [00:12:05] Speaker 02: That's the VA form disallowing. [00:12:08] Speaker 02: That would be the only place from which the widow would have known that there was a rating decision at all. [00:12:14] Speaker 02: And the only place that appears on that form is the top right hand corner. [00:12:17] Speaker 02: If you take a look at the form there, the top right hand corner in box number 10 remarks. [00:12:22] Speaker 02: Now recall this is being sent to a service widow. [00:12:25] Speaker 02: and they center this form. [00:12:27] Speaker 02: If you look at that box, maybe seasoned jurists of Veterans Law would be able to decipher what looks like RAL-T 2-9.76. [00:12:37] Speaker 02: That's hardly noticed that there was a rating decision on February 9, 1976, nor what the content of it is. [00:12:46] Speaker 02: So it's insufficient notice, Your Honor. [00:12:47] Speaker 02: The widow would have no idea looking in the remarks column and seeing that. [00:12:52] Speaker 01: But she knows she's got notice of what the decision is. [00:12:56] Speaker 02: What she gets is this thing saying disallow disability or death claim with a check box. [00:13:04] Speaker 02: So maybe she can get from that the idea that well, it's been disallowed. [00:13:08] Speaker 02: The problem with that is it's misleading. [00:13:10] Speaker 02: And here's why. [00:13:10] Speaker 02: There's a presumption of regularity that applies to the Veterans Administration that people either [00:13:17] Speaker 02: generically, at least used to believe, or being, though, it enjoys its presumption of regularity. [00:13:24] Speaker 02: Widow gets this thing. [00:13:27] Speaker 02: Assuming that she can figure out that this is a denial, it doesn't say dependency indemnity compensation anywhere on this at all. [00:13:36] Speaker 02: The only place, even something we mostly like. [00:13:38] Speaker 04: There was only, she had only one claim pending, right? [00:13:42] Speaker 02: That's it. [00:13:42] Speaker 04: But it was denied, so this is not like the facts. [00:13:45] Speaker 02: There was a disability year, there was a pension claim floating around at the same time too. [00:13:50] Speaker 01: Well, right on top, the name of the form is a disallowance form. [00:13:54] Speaker 02: Yeah, disallowance, sure. [00:13:56] Speaker 02: She gets a disallowance. [00:13:57] Speaker 02: Something got disallowed, disability death claim. [00:13:59] Speaker 02: Maybe it's the DIC. [00:14:01] Speaker 02: She looks at it and says, OK, I guess my claim, whichever ones I have out there, has been denied. [00:14:06] Speaker 02: Now she has to decide whether or not to appeal it. [00:14:09] Speaker 02: And with respect to that, that's where our notice issue is. [00:14:13] Speaker 02: If you're a service widow, well, the government has a presumption of regularity. [00:14:19] Speaker 02: They must have looked at this very carefully. [00:14:21] Speaker 02: They must have looked at its entire service records. [00:14:24] Speaker 02: No. [00:14:25] Speaker 02: Appendix 34, the rating decision, shows that didn't happen. [00:14:29] Speaker 02: They must have considered our claim the way we filed it. [00:14:32] Speaker 02: Her claim, in black and white there on page 35 of the appendix, it appears so. [00:14:39] Speaker 01: We're not re-litigating the sufficiency or the correctness of that in this context. [00:14:46] Speaker 01: Your claim is that she didn't have notice, and therefore the claim is still open. [00:14:51] Speaker 01: Right. [00:14:51] Speaker 01: So arguments with respect to [00:14:54] Speaker 01: whether this was informative enough, and yada da. [00:14:56] Speaker 01: I mean, that's the basis for her to have appealed it, not the argument, not basis for you to say she didn't have enough notice. [00:15:05] Speaker 02: She doesn't know whether to appeal unless she's given [00:15:08] Speaker 02: This court in rural versus Wilkie dealt with that. [00:15:13] Speaker 02: Sufficient notice to be constitutionally sufficient has to provide the party being ruled against with sufficient notice to understand the reasons for the denial and not be misleading. [00:15:27] Speaker 02: It's misleading in that the widow was not told that her claim was being considered only for Hodgkin's disease. [00:15:34] Speaker 02: She wrote down cancer. [00:15:35] Speaker 02: So when she gets a denial, [00:15:37] Speaker 02: She understands that her cancer claim has been denied. [00:15:40] Speaker 02: Later on, the VA says, no, we didn't read it as a cancer claim. [00:15:43] Speaker 02: We just read it as a Hodgkin's disease claim. [00:15:45] Speaker 02: Therefore, we're denying her claim. [00:15:47] Speaker 02: So that's what happened in this case. [00:15:49] Speaker 02: Number two is she thinks, well, he must have done a really good job of obeying 3.312, or whatever the requirement of due diligence. [00:16:00] Speaker 02: And there was no due diligence at all. [00:16:02] Speaker 02: Let me ask you this. [00:16:03] Speaker 02: Take a look at page 34. [00:16:07] Speaker 02: This is supposed to be the rating decision that's enforced right now. [00:16:13] Speaker 02: upon which benefits of 20 years worth of DIC, that's almost $600,000, are being denied. [00:16:20] Speaker 02: And there's hardly due diligence showed here or compliance with 3.312. [00:16:25] Speaker 02: So sending this disallowance, disability, or death claim to the widow. [00:16:30] Speaker 04: Can I ask about one of the alternative arguments or grounds that I think the Veterans Court articulated on not the CUE claim, but the notice, which [00:16:44] Speaker 04: Let's put this under the heading of subsumed. [00:16:48] Speaker 04: So why is it wrong to say that the 1995 RO and 2001 board decisions did in fact answer the question that you say was still outstanding, which is the question, did Admiral Bonner have non-Hodgkins when he died? [00:17:12] Speaker 04: With respect to subsuming it, I do have. [00:17:15] Speaker 04: And the theory is, if it did answer it, then even if an answer to that question wasn't final in 76, it's been final for 20 years. [00:17:26] Speaker 02: So that's a ground versus question. [00:17:27] Speaker 02: I have something on that right here. [00:17:30] Speaker 02: As an assignment of error with respect to the Veterans Court's decision, on appendix page 10, the Veterans Court [00:17:40] Speaker 02: uh, opines, uh, uh, that the, uh, doctrine of delayed subsuming applies to the widow's post federal circuit Q motion. [00:17:48] Speaker 02: So after we were here last time, told file this Q motion, we filed it. [00:17:53] Speaker 02: Uh, the veterans court did not develop why it cited, uh, to this doctrine. [00:17:57] Speaker 02: It did not even use the word delayed subsuming, but merely footnoted the CFR citation applicable to the VA in this court's 2000 Brown versus West decision. [00:18:08] Speaker 02: Veterans Court ruled that this delayed subsuming was to the effect the 1976 RO decision, unappealed, was thereafter subsumed in the 2001 board decision. [00:18:21] Speaker 02: This court in Brown, which is 203 Fed Thread at 1381, stated, in addition, a board decision that considers a collateral attack on a final unappealed RO determination can subsume [00:18:35] Speaker 02: the unappealed RO determination under certain circumstances. [00:18:39] Speaker 02: I get to the certain circumstances momentarily. [00:18:42] Speaker 02: This court continued in Brown, in a case in which the board's decision subsumes an unappealed RO determination on collateral attack, the veteran may not challenge the original RO determination as continuing clear and unmistakable error, but must proceed before the board and urge that there was clear and unmistakable error in the board decision that subsumed [00:19:05] Speaker 02: the unappealed oral determination. [00:19:08] Speaker 02: As to proceeding in Q before the board, we did that. [00:19:11] Speaker 02: We filed and directed our Q motion with the board. [00:19:16] Speaker 02: It's on Appendix 97. [00:19:18] Speaker 02: Appendix 97 is our Q motion. [00:19:23] Speaker 04: I'm sorry. [00:19:23] Speaker 04: I just wanted to direct. [00:19:25] Speaker 04: So I want to put Q completely to one side for now. [00:19:29] Speaker 04: Because you have two paths along which you're trying to get relief. [00:19:33] Speaker 04: One is you did have a Q claim. [00:19:36] Speaker 04: I mean, you had a meritorious Q claim. [00:19:39] Speaker 04: But wholly apart from that, you have this separate path in which you say, there's still a live issue. [00:19:47] Speaker 04: There has been no final adjudication. [00:19:50] Speaker 04: There wasn't one. [00:19:52] Speaker 04: There still hasn't been one. [00:19:54] Speaker 04: Therefore, we can actually judge the answer to the NHL question. [00:19:59] Speaker 04: without this extremely demanding standard of Q, the way we would have done on an original appeal. [00:20:07] Speaker 04: That's the piece that I'm trying to understand. [00:20:09] Speaker 04: Why is it not the case that even if notice was inadequate in February of 1976, that the question of whether Admiral Bonner had NHL was answered in 95 and 2001, [00:20:28] Speaker 04: So that question has been finally answered for 20 years. [00:20:35] Speaker 02: My answer to that would be it didn't survive this court's opinion last time we were here. [00:20:41] Speaker 02: George Archer's opinion. [00:20:44] Speaker 02: was that at the behest of the government, by the way, so the court didn't make this up on its own. [00:20:50] Speaker 02: It was urged to do this by the government so that the appellants can't clatterly attack this decision. [00:20:59] Speaker 02: It is to file a Q petition. [00:21:03] Speaker 02: So the court ruled that we should do that. [00:21:05] Speaker 02: So the court was either sending us on a fool's errand, which I don't believe the court was doing, and did so at [00:21:12] Speaker 02: the instance of the government. [00:21:14] Speaker 02: So the reason we're here now, this whole case has been laundered through this court, sent back out by this court at the government's request to file a Q-motion, which we've done. [00:21:23] Speaker 02: With respect to the absolutes assuming, though, between the 1975 claim and the 1901 board decision, that was the board decision that we appealed to this court. [00:21:40] Speaker 02: And this court said, file a Q-motion about it. [00:21:43] Speaker 02: So that's what we did. [00:21:44] Speaker 02: And we filed a Q-motion on page 97 of the record with the Department of Veterans Affairs, Board of Veterans Appeals of Washington, D.C., and filed a Q-motion with them and concurrently with the Department of Veterans Affairs regional office. [00:21:59] Speaker 02: Not only that, but the Department of Veterans Affairs regional, excuse me, the board, and I'll pass this up if I may, but we're not. [00:22:08] Speaker 02: The board, after we filed our Q-motion with the board, which is what the subsuming cases say you should do, and it's what we did do, the board said they don't have any jurisdiction on this or any other matter, and referring it to the board. [00:22:24] Speaker 02: I gave a copy of it. [00:22:26] Speaker 02: I'm sorry, it's not in the appendix. [00:22:27] Speaker 02: It's in page 170 of the record on appeal, and it's referred to in our brief. [00:22:36] Speaker 02: I give it a copy to opposing counsel. [00:22:38] Speaker 02: May I pass it just one copy of a record 170 or not, if it would be useful to you? [00:22:45] Speaker 01: It's germane. [00:22:47] Speaker 01: So it's not in the appendix? [00:22:49] Speaker 02: It's not in the appendix, but it is in the record of appeal. [00:22:51] Speaker 02: I don't need it. [00:22:52] Speaker 02: I allege in the brief that the board sent it back down. [00:22:56] Speaker 01: OK. [00:22:56] Speaker 01: I think that's sufficient. [00:22:58] Speaker 01: All right. [00:22:58] Speaker 01: Well, we're way beyond your time. [00:23:00] Speaker 01: We'll reassure some of you about it later. [00:23:02] Speaker 02: Thank you. [00:23:02] Speaker 02: For the reasons that we do. [00:23:04] Speaker 02: OK. [00:23:04] Speaker 02: Thank you very much. [00:23:06] Speaker 02: to have an Occam's razor argument coming up for you on rebuttal. [00:23:13] Speaker 01: Excuse me, Mr. Bonner? [00:23:14] Speaker 01: It's easy to forget, but put your mask back on. [00:23:16] Speaker 01: Oh, sorry. [00:23:17] Speaker 01: Thank you. [00:23:18] Speaker 00: Please proceed. [00:23:19] Speaker 00: Thank you. [00:23:19] Speaker 00: Good morning, and may it please the court. [00:23:22] Speaker 00: Although Mr. Bonner raises a number of different legal arguments, a variety of arguments, [00:23:29] Speaker 00: He cannot prevail in this case unless he can convince this court that Admiral Bonner died of non-Hodgkin's lymphoma in 1975. [00:23:37] Speaker 00: That cause of death issue is the foundation upon all other legal arguments. [00:23:43] Speaker 04: Just to be clear, do you agree that it would be sufficient if it were the case that non-Hodgkins was a contributory cause, even if the Admiral also had Hodgkins? [00:24:05] Speaker 00: on this special question do you agree that these are not either or you can actually have both i'm not sure i can respond to that just around here is why number one that would be the type of factual question that would be outside this court's jurisdiction on appeal any any other uh... more importantly than that what we're talking about here is a challenge to a resolution of a q motion and in a few months we're talking about two things [00:24:34] Speaker 04: Right? [00:24:34] Speaker 04: We have a Q motion and there has never been a final determination. [00:24:38] Speaker 00: So we don't think that the final determination part can survive without Mr. Bonner also showing that Admiral Bonner died of non-Hodgkin's lymphoma. [00:24:48] Speaker 00: We think they are connected to each other. [00:24:52] Speaker 00: But if I could just respond to the prior question. [00:24:56] Speaker 00: Because this is a Q motion, what we have to do is we have to look to the evidence that existed at the time of the original decision. [00:25:02] Speaker 00: And in 1976, when the regional office first disallowed the claim, what the VA had is an autopsy report and a death certificate, both of which definitively noted that Hodgkin's disease was the cause of death and neither one of which noted. [00:25:20] Speaker 04: Be really careful about the language. [00:25:21] Speaker 04: I definitively noted that it was the, I think that goes a little bit far. [00:25:27] Speaker 04: Page 26 of the appendix has slightly softer language, doesn't it? [00:25:32] Speaker 04: The gist of his claim about the autopsy report is that when you carefully look at, what is it, page 33, I guess, of the appendix, there are warning flags there that something else might have been going on. [00:25:50] Speaker 00: That's true. [00:25:51] Speaker 00: The medical evidence here was not entirely definitive one way or another. [00:25:56] Speaker 00: But the examiner who prepared the autopsy report looked at that entirety of evidence and concluded that the cause of death was Hodgkin's disease. [00:26:06] Speaker 00: And I'm looking at page 24 of the joint appendix, where the cause of death is listed. [00:26:12] Speaker 00: There is a list there, and that is the first thing that's listed. [00:26:15] Speaker 00: And it says cause of death, colon, Hodgkin's disease. [00:26:19] Speaker 00: That is a definitive determination that that is the cause of death. [00:26:22] Speaker 04: And the- [00:26:26] Speaker 04: Is there some greater certainty that we can take from that than is reflected in the sentence on page 26 at the end of the second full paragraph? [00:26:39] Speaker 04: It was felt that the most likely possibility was Hodgkin's disease. [00:26:46] Speaker 00: Most likely. [00:26:47] Speaker 00: And as I said, there were some contradictory evidence, certain. [00:26:51] Speaker 00: But this language I would submit is no more uncertain than the language in the NIH report in 1995, which also talked about some contradictory medical evidence, some evidence suggesting Hodgkin's disease and some evidence suggesting non-Hodgkin's lymphoma and concluded that the NIH at the time favored non-Hodgkin's lymphoma as opposed to Hodgkin's disease. [00:27:17] Speaker 04: You kind of said early that when I asked you is this a either or thing, can somebody have both, that you can't really answer it. [00:27:26] Speaker 04: I forget whether you said you can't answer it or we can't answer it. [00:27:29] Speaker 04: What, if anything, in this document might [00:27:33] Speaker 04: and some of which is medical records and some of which is commentary on medical records, might give an answer one way or the other to the question, do doctors understand that you can have both of these lymph cancer problems? [00:27:51] Speaker 00: So I can't quite tell you just around to whether doctors understand that or not or whether they understood it or not in 1976. [00:28:00] Speaker 00: But what I can tell you is number one, the court cannot answer that because it's a fact question. [00:28:06] Speaker 00: Number two, if we look at the autopsy report, which after weighing the evidence, the medical evidence at the time, we believe definitively concluded that the cause of death was Hodgkin's disease. [00:28:19] Speaker 00: That was the conclusion. [00:28:21] Speaker 00: And then you look at the death certificate, which also listed Hodgkin's disease and only Hodgkin's disease as the cause of death. [00:28:31] Speaker 00: It's important to remember that neither one of those documents either listed a contributory cause of death or listed a second possible cause of death that may be a primary cause of death. [00:28:43] Speaker 00: They both [00:28:44] Speaker 00: listed Hodgkin's disease as the only cause of death. [00:28:47] Speaker 00: They didn't discuss any other types of cancer. [00:28:51] Speaker 00: They didn't mention non-Hodgkin's lymphoma, which is the issue here. [00:28:56] Speaker 00: The evidence in 1976, we believe, was definitive. [00:29:00] Speaker 00: Despite this medical uncertainty, they took the evidence, they weighed that evidence, and concluded that Hodgkin's disease was the result. [00:29:08] Speaker 00: And that is the only evidence that certainly this court can go on in a queue motion. [00:29:15] Speaker 00: But it's also the only evidence that the regional office at the time in 1976 had to go by. [00:29:22] Speaker 04: And looking at this autopsy report and looking at the death certificate... Do I remember right that NIH in 1995 had some additional lab information that... No? [00:29:38] Speaker 00: I'm not sure if they had additional information. [00:29:40] Speaker 00: What they did have, though, is 20 more years of medical knowledge. [00:29:45] Speaker 00: That's correct. [00:29:47] Speaker 00: And the NIH report specifically said that their task was to review this claim with current medical understanding. [00:29:55] Speaker 00: And I'm paraphrasing here. [00:29:56] Speaker 00: That's not verbatim what they said. [00:29:59] Speaker 00: But that 20-year difference may have made a difference in terms of what the medical understanding was as to what [00:30:08] Speaker 00: The differences are between Hodgkin's disease and Hodgkin's, and not Hodgkin's lymphoma. [00:30:12] Speaker 04: I guess I'm thinking, so did the regional office in 1976 not only have the autopsy report, but the 42 slides that the NIH refers to in 1995? [00:30:23] Speaker 00: I believe that's correct. [00:30:25] Speaker 04: That they had both? [00:30:26] Speaker 00: I believe that's correct, yes. [00:30:33] Speaker 00: Going back to the cause of death issue, again, we think that that is really the foundation on which all other legal arguments rest, including the finality argument, to which I'll get in a minute. [00:30:44] Speaker 00: And there are four separate reasons why this court cannot be convinced that Admiral Bonner died of non-Hodgkin's lymphoma in 1975. [00:30:54] Speaker 00: The first one is because that is a factual determination that requires the court to review the medical record. [00:31:01] Speaker 00: um, and make determinations based on that medical record. [00:31:04] Speaker 00: And that is well outside this court's limited appellate jurisdiction under 38 USC section 72 92. [00:31:10] Speaker 00: Number two, and I've, I've already discussed this, but in a Q motion, we have to look back to the evidence that existed at the time of the original decision. [00:31:19] Speaker 04: I'm sorry. [00:31:20] Speaker 04: Can you just explain to me again, why in order to decide whether [00:31:24] Speaker 04: Um, the non Q argument in front of us, the finality, that is the lack of finality argument. [00:31:31] Speaker 04: Why, in order for us to rule on that, we need to be persuaded that the Admiral, um, died of Hodgkin's. [00:31:38] Speaker 04: Sure. [00:31:39] Speaker 04: As opposed to saying, um, goodness, there's never a final, there hasn't been a final adjudication. [00:31:45] Speaker 04: The very, the veterans court and the board need to look at that question. [00:31:50] Speaker 04: without the Q lens. [00:31:52] Speaker 04: And they haven't done it. [00:31:53] Speaker 04: And the Veterans Court seems to say at one point, it's almost certain that he died of NHL, not Hodgkin's. [00:32:01] Speaker 00: They did say that. [00:32:03] Speaker 00: They said that outside of the context of Q, Your Honor. [00:32:06] Speaker 04: Why is the finality question that we have in front of us? [00:32:12] Speaker 04: The Q obviously is affected by the factual question. [00:32:16] Speaker 04: Why is the finality question affected? [00:32:19] Speaker 00: Because Mrs. Bonner was granted DAC benefits for Hodgkin's disease in 1995. [00:32:25] Speaker 00: And the RO and the board and the Veterans Court and this court and Bonner v. Nicholson [00:32:31] Speaker 00: determined that the scope of the claim that was filed in 1975 only included Hodgkin's disease, did not include non-Hodgkin's lymphoma. [00:32:43] Speaker 00: So if we have a non-final decision, which I don't believe we do, and I'll discuss that in a minute, but if the court concludes that there is a non-final decision, there is a non-final decision as to Hodgkin's disease. [00:32:57] Speaker 00: And that is all that exists unless and until Mr. Bonner is able to prove that Admiral Bonner died of non-Hodgkin's lymphoma. [00:33:07] Speaker 00: Now, even if the court looks to it as a direct appeal, if it's non-final, it would be a direct appeal as opposed to an appeal of a cue motion. [00:33:19] Speaker 00: The cause of death issue still suffers from some of the same problems that it does in a cue challenge. [00:33:25] Speaker 00: It still has the problem that it's a factual determination. [00:33:29] Speaker 00: It still has the issue that the NIH report does not clearly establish that non-Hodgkin's lymphoma is the correct cause of death as opposed to Hodgkin's disease. [00:33:41] Speaker 00: And finally, there is the issue preclusion issue. [00:33:46] Speaker 00: We have to remember that Mrs. Bonner already filed a claim [00:33:52] Speaker 00: based on the NIH report. [00:33:53] Speaker 00: She submitted the NIH report to the VA. [00:33:56] Speaker 00: And she told the VA, based on that NIH report, that Admiral Bonner died of non-Hodgkin's lymphoma. [00:34:01] Speaker 00: That was reviewed by the RO in 1995. [00:34:04] Speaker 00: And the RO made a determination that that is incorrect. [00:34:07] Speaker 00: And that was affirmed by the board. [00:34:09] Speaker 00: It was affirmed by the Veterans Court. [00:34:11] Speaker 00: And it was affirmed by this court in Bonner v. Nicholson. [00:34:14] Speaker 04: Could you have a JA site for the 1995 RO decision [00:34:21] Speaker 04: There was no non-Hodgkin's cause at issue here. [00:34:31] Speaker 00: Sure. [00:34:32] Speaker 00: So that RO decision, and I'm sorry I misspoke, it's 1997. [00:34:36] Speaker 00: It took a few years. [00:34:38] Speaker 04: Oh, there was a claim in 1995 and it took a while. [00:34:40] Speaker 00: Exactly. [00:34:41] Speaker 04: And it took quite a long time here. [00:34:44] Speaker 00: Right. [00:34:45] Speaker 00: So that supplemental statement of the case begins on Appendix 56. [00:34:51] Speaker 00: But specifically, I'll refer you, Your Honor, to page 60 of the Joint Appendix, which is part of that statement of the case. [00:35:04] Speaker 00: And when you get there, I'll read from that, if I may. [00:35:08] Speaker 00: There is a paragraph towards the bottom that begins with general counsel precedent. [00:35:14] Speaker 00: The second sentence of that paragraph reads, [00:35:17] Speaker 00: Report from National Institutes of Health dated June 19, 1995 was submitted in support of the claimant's allegations that the cause of the veteran's death was misdiagnosed as Hodgkin's disease and contends that the cause was due to non-Hodgkin's lymphoma. [00:35:33] Speaker 00: Then there's a short discussion of that. [00:35:35] Speaker 00: And then the conclusion, and I'll start from the second to last sentence of that same paragraph. [00:35:40] Speaker 00: It reads, the report is negative for evidence confirming that the disease was ever reclassified [00:35:47] Speaker 00: to provide for a definitive diagnosis of non-Hodgkin's disease. [00:35:52] Speaker 00: Therefore, General Counsel precedent opinion 5-94, dated February 18, 1995, 1994, is not for application. [00:36:01] Speaker 00: And we have confirmation of this decision in the Veterans Court and in this Court. [00:36:07] Speaker 00: And I can redo those portions as well, Your Honor. [00:36:14] Speaker 00: If we look to the Bonner v. Nicholson decision before the Veterans Court, this is not in the Joint Appendix, but I'm looking at Bonner v. Nicholson 19 Veterans Appeals beginning at page 188. [00:36:33] Speaker 00: On page 195 of that opinion, the very end of page 195, spilling into page 196, after having some initial discussion of the NIH report, [00:36:44] Speaker 00: The veterans court concluded, and I quote, a review of the record in its entirety reveals that the board had a plausible basis to find that the cause of Mr. Bonner's death was Hodgkin's disease. [00:36:55] Speaker 00: So this is an affirmance of the decision that the cause of death was Hodgkin's disease. [00:37:00] Speaker 00: And then this court in footnote one. [00:37:05] Speaker 00: So the citation is a 497 federal third reporter, 1323. [00:37:14] Speaker 00: Footnote one, there is a short discussion of the NIH report. [00:37:20] Speaker 00: I'll read it to you. [00:37:21] Speaker 00: The footnote begins, contrary to the dissent assertion, the 1995 NIH report re-examining Admiral Bonner's condition at the time of his death was ambiguous in that his illness simulated Hodgkin's disease, but also favored a diagnosis of non-Hodgkin's lymphoma. [00:37:38] Speaker 00: This does not demonstrate that the 1975 diagnosis of Hodgkin's disease as the cause of death was indisputably incorrect. [00:37:49] Speaker 00: So that indicates that there is a preclusive effect based on these prior decisions that already looked at the very argument that Mr. Bonner is raising here. [00:38:02] Speaker 00: The issue that Mr. Bonner is raising is, does the NIH report demonstrate [00:38:07] Speaker 00: that Admiral Bonner's cause of death was non-Hodgkin's lymphoma. [00:38:12] Speaker 00: And the answer to that as the Veterans Court and this court already held in the prior round is a resounding no, because at the very least that evidence was inconclusive. [00:38:26] Speaker 00: Now, I do want to note finality for a moment as well. [00:38:32] Speaker 00: We don't think that issue would resolve the case against us. [00:38:36] Speaker 00: without the cause of death also being resolved against us. [00:38:41] Speaker 00: But this case is in no way like Ruel V. Wilkie, because in Ruel, there was a single sentence and an unrelated claim that did not identify the DAC claim at all. [00:38:52] Speaker 00: And all it said is the veteran did not die. [00:38:55] Speaker 00: And again, I'm paraphrased. [00:38:56] Speaker 00: The veteran did not die from a service connected condition. [00:39:02] Speaker 00: That's not what we have here. [00:39:03] Speaker 00: What we have here, and I think Mr. Bonner would agree with me, we have a disallowance form and a letter, both of which went to Mrs. Bonner in 1976. [00:39:18] Speaker 00: And I'll take a moment so I can... [00:39:26] Speaker 00: refer the court to the right citation. [00:39:29] Speaker 00: So that this allowance form appears on page 36 of the joint appendix. [00:39:34] Speaker 04: And the letter is the next page, right? [00:39:40] Speaker 00: So page 36 of the joint appendix. [00:39:42] Speaker 00: I'm sorry. [00:39:43] Speaker 00: Is the letter the next page? [00:39:45] Speaker 00: Well, part of the letter is the next page. [00:39:47] Speaker 00: The next page is page one of the letter. [00:39:50] Speaker 00: But a full version of the letter appears on pages 129 to 130 of the joint appendix. [00:39:55] Speaker 00: It's important to include the second page because that second page contains notice of appeal rights. [00:40:06] Speaker 00: But if I may go through that form for a moment, Your Honor, that form in box 20 towards the bottom where it says disallowance worksheet, specifically, and I'm back on page 36 of the Joint Appendix, just so it's clear. [00:40:22] Speaker 00: So box 20. [00:40:25] Speaker 00: There's a check mark where it says disallowance of DIC and request for evidence. [00:40:30] Speaker 00: So the form identifies the specific claim being disallowed. [00:40:35] Speaker 00: Then at the top, box 13, reasons for disallowance, there's a check mark next to box 06, which reads death not due to service. [00:40:43] Speaker 00: There is a reason why the claim was disallowed. [00:40:46] Speaker 00: And in box 10 remarks, it says Rating 2, 976. [00:40:52] Speaker 00: So there is an identification of the date on which the claim was disallowed. [00:40:57] Speaker 00: And then if we look to the letter, and I'll refer the court to page 129 of the joint appendix instead of page 30 just because of that second page. [00:41:11] Speaker 00: So this is the letter dated March 8, 1976. [00:41:15] Speaker 00: And it reads, we regret that we are unable to pay our claim for dependency and indemnity compensation. [00:41:21] Speaker 00: And I'll stop there for a moment. [00:41:22] Speaker 00: Again, an identification of the specific claim being disallowed. [00:41:27] Speaker 00: Because our evidence does not establish that the veteran's death was due to a disease or injury incurred in or aggravated by military service. [00:41:35] Speaker 00: Again, there is a specific identification of the reason why the claim is disallowed. [00:41:41] Speaker 00: And then on the next page, appendix 130, [00:41:44] Speaker 00: there is a notice of procedural and appeal rights, which is specific to the DAC claim that was disallowed. [00:41:51] Speaker 00: Those things did not exist in Ruel. [00:41:54] Speaker 00: And that case is therefore distinguishable from this one. [00:41:58] Speaker 00: And there's also this subsuming doctrine that Judge Taranto you asked about. [00:42:03] Speaker 00: Separate and apart from all of this, in 1995, again, the court [00:42:09] Speaker 00: looked at a specific request about changing the effective date of that DAC claim. [00:42:14] Speaker 00: It looked at the NIH report. [00:42:16] Speaker 00: It decided that because the cause of death issue cannot be resolved in favor of Mrs. Bonner, as well as some other issues, she cannot obtain an earlier effective date, the same earlier effective date that she seeks today. [00:42:34] Speaker 00: At the very least, this 1976 decision was subsumed by the 1997 RO decision, which was later affirmed by the board, by the Veterans Court, and by this court. [00:42:49] Speaker 01: I think your time has expired. [00:42:51] Speaker 01: Anything you have to tell us that's really essential? [00:42:54] Speaker 00: I don't think so. [00:42:55] Speaker 00: There's no further questions. [00:42:56] Speaker 00: I want to thank the court for its time, and again, thank that the court either dismissed the case or affirm the Veterans Court's decision. [00:43:05] Speaker 00: Thank you. [00:43:06] Speaker 00: Thank you. [00:43:08] Speaker 01: Mr. Bonner, I think you exhausted your time, but we'll restore two minutes of rebuttal if you need it. [00:43:18] Speaker 02: OK. [00:43:18] Speaker 02: the court to consider the Appendix 36 that this allowance claim [00:43:26] Speaker 02: The disallowance worksheet, if you look in the middle of that form, the government's trying to rely on a check box, which a service would have no idea what it is. [00:43:39] Speaker 02: And furthermore, it's in an area that looks like it's a record keeping part for the VA administrative purposes. [00:43:45] Speaker 02: Should have no idea what RAL-T 2-9.76 means either. [00:43:51] Speaker 02: So to say that this constitutes sufficient notice is basically to license the VA to cite this court's opinion that this kind of notice, this totally useless notice, I should have no idea what they did. [00:44:05] Speaker 02: They should have told her that we are considering your claim for cancer only as Hodgkin's disease, not non-Hodgkin's lung pharma. [00:44:13] Speaker 02: I'm sorry. [00:44:14] Speaker 02: And that we didn't follow 3.312, which requires sound judgment considering all of the evidence, including autopsy reports. [00:44:25] Speaker 02: So in one minute, I think I can do this. [00:44:29] Speaker 02: We have raised the collateral estoppel issue in this case and the failure to apply applicable law 3.312. [00:44:36] Speaker 02: We've raised a due process violation, which is a claim is still open. [00:44:42] Speaker 02: She wouldn't know to file an appeal. [00:44:45] Speaker 02: She said, well, the government's right. [00:44:48] Speaker 02: I guess they denied my claim. [00:44:49] Speaker 02: I have no idea that they've manhandled and denied us the procedure that we were due on this claim. [00:44:55] Speaker 02: So my Occam's razor argument, here it is and I'll sit down. [00:44:59] Speaker 02: And it's all resolved if this court finds that the 1975 claim is still open. [00:45:07] Speaker 02: because of notice, error, and it's misleading. [00:45:11] Speaker 02: And that's Ruel versus Wilkie. [00:45:13] Speaker 02: I think it does apply. [00:45:14] Speaker 02: If you read Ruel, it's right on point with this case. [00:45:19] Speaker 02: If you find it was still open, then it was, quote, pending before the VA on May 3rd, 1989. [00:45:24] Speaker 02: This is an argument that I have. [00:45:26] Speaker 02: It's the 38 CFR 3.816. [00:45:28] Speaker 02: It comprises the last pages of our opening brief and also our reply brief. [00:45:34] Speaker 02: I parsed it up. [00:45:35] Speaker 02: But here it is. [00:45:36] Speaker 02: So if you do find that one fact, then the rest of the facts are not controverted. [00:45:42] Speaker 02: I don't believe. [00:45:43] Speaker 02: The effective date of the claim is the date the claim was received by the VA that September the 9th, 1975, appendix 35. [00:45:51] Speaker 02: That date's not disputed. [00:45:53] Speaker 02: The VA shall pay such unpaid retroactive benefits to the class members of state. [00:46:00] Speaker 02: It's undisputed that the appellate is the executor of the [00:46:04] Speaker 02: widow's estate, that's appendix 48. [00:46:07] Speaker 02: Class member means a surviving spouse of a deceased veteran who died from a covered herbicide disease. [00:46:13] Speaker 02: It's not disputed that Admiral Bonner was a Vietnam veteran, nor he is deceased, nor that the widow was his surviving spouse. [00:46:22] Speaker 02: Two more pieces to it. [00:46:24] Speaker 02: Covered herbicide disease means a disease provided in 3.309A. [00:46:29] Speaker 02: And lastly, if a veteran was exposed to a herbicide agent during active naval service, [00:46:35] Speaker 02: Caller record shows two tours of duty in Vietnam, including an entire year ashore in Da Nang up by the DMZ. [00:46:44] Speaker 02: The following diseases shall be service-connected. [00:46:47] Speaker 01: I think the time is going. [00:46:49] Speaker 01: Two more minutes. [00:46:51] Speaker 02: Hodgkin's disease and non-Hodgkin's lymphoma. [00:46:55] Speaker 02: Both are covered diseases, so if the court does find [00:47:00] Speaker 02: that the case is still open, the court should do what the court did well in order for the Secretary to pay benefits. [00:47:06] Speaker 02: Thank you. [00:47:07] Speaker 01: Thank you. [00:47:07] Speaker 01: We thank both sides and the case is submitted.