[00:00:00] Speaker 02:
Our next case is Lester Serrano versus the Secretary of Veterans Affairs, 2021-13-97.

[00:00:49] Speaker 02:
Good morning, Mr. Carpenter.

[00:00:50] Speaker 00:
Thank you, Your Honor.

[00:01:04] Speaker 00:
May it please the Court, Kenneth Carpenter, appearing on behalf of Mr. Lester Serrano.

[00:01:10] Speaker 00:
The issue in this case is whether or not the Veterans Court erred by applying the

[00:01:16] Speaker 00:
by failing to apply the more liberal issue exhaustion rule adopted by this court in its decisions in both Scott and Bozeman.

[00:01:27] Speaker 00:
Although the Veterans Court's memorandum does cite to Scott, it did not apply the rule as adopted by this court in Scott and neither did it cite nor apply the rule adopted by this court in Bozeman.

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We believe that that results

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in an error as a matter of law by the Veterans Court having affirmed the decision of the board by having failed to consider the issue presented by Mr. Serrano before the Veterans Court by failing to consider and apply the less strict requirement for issue... Exactly how is it stricter though?

[00:02:05] Speaker 04:
I'm having a hard time following.

[00:02:07] Speaker 00:
I'm sorry?

[00:02:07] Speaker 04:
I said exactly how do you claim it is stricter, the application?

[00:02:13] Speaker 00:
Well, because in this case, the court considered only the fact that Mr. Serrano was represented by an attorney and the fact that he had apparently told an adjudicator that the VA had discussed with him the need for toe amputation.

[00:02:30] Speaker 00:
That's the criteria under the former very strict issue exhaustion requirement.

[00:02:41] Speaker 00:
Excuse me.

[00:02:41] Speaker 00:
The issue exhaustion requirement adopted by this court in Scott required an analysis of all of the evidence that was of record in a liberal manner to determine whether or not in the context of VA benefits that the lesser requirement, the more liberal requirement, and that requirement was based in Scott upon this court's decisions in Roberson

[00:03:10] Speaker 00:
Robinson and Comer that require the Veterans Court to look at all of the evidence.

[00:03:15] Speaker 04:
But this isn't a question of what evidence they have to look at.

[00:03:18] Speaker 04:
This is a question of what legal arguments were actually raised based on that evidence, right?

[00:03:26] Speaker 00:
In Scott, the Scott court said, based upon this court's decision in Roberson, Robinson, excuse me, that while Comer was a pro se case on its face,

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the direct appeal of the regulation imposed an obligation on the board to read the filings of the claimant in a liberal manner, regardless of whether the claimant was represented by an attorney.

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So clearly, that is a different standard that is a less restrictive standard than the fact that it wasn't simply presented.

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And in this context, we're talking about the qualification for compensation under 1151, not compensation for service connection

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for a disease or injury that was incurred while on active duty.

[00:04:11] Speaker 02:
This is something... The court below said that Mr. Serrano waived his informed consent challenge.

[00:04:19] Speaker 02:
Isn't that a question of fact, which is beyond our jurisdiction?

[00:04:24] Speaker 00:
No, Your Honor, that's a question of law because this court, as well as the Veterans Court, have interpreted the regulations

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that require a consent to be informed.

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There is no waiver provision in the law for the waiver of that informed consent.

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That informed consent is a mandatory requirement for the determination of whether or not the consent to the action performed by the VA provider was in fact informed by the veteran

[00:04:58] Speaker 00:
at the time in which they received the medical services uh... the veterans court did not look to all of the evidence that supported his entitlement the compensation under section eleven fifty one even though the specific issue of informed consent had simply not been raised by mister sarana the veterans court applied a strict issue it wasn't raised by him because addicted his consent

[00:05:27] Speaker 02:
He said, you can take off my toe, but not my leg.

[00:05:33] Speaker 00:
But, Your Honor, the plain language of the VA's regulations require more than that statement.

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And that was why the issue was raised

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by the overall or overarching issue that was presented, which was entitlement to 1151 compensation.

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Included in that is whether or not the VA performed its obligation to provide an informed consent.

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The Veterans Court, we believe, applied the stricter rule and abandoned this court's rule in Scott.

[00:06:09] Speaker 00:
Scott explained that there are significant differences.

[00:06:12] Speaker 03:
Mr. Carpenter, can I go back to a question that you were asked by Judge Laurie?

[00:06:17] Speaker 03:
He asked you whether the question of whether the Court of Veterans Appeals decision to invoke the doctrine of issue of exhaustion, why is that not a question of fact?

[00:06:29] Speaker 03:
And I wasn't sure I followed your answer, but when I read Bozeman, I thought Bozeman made it quite clear that

[00:06:36] Speaker 00:
that determination that is whether initially has been exhausted or not is in a question of fact uh... that we wouldn't have jurisdiction review respectfully are bozeman arose in a different context bozeman arose in the context of the question of whether or not a condition was related to service so it is a service connection issue the revisions of eleven fifty one uh...

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require negligence as a component, but they also specifically indicate that if a procedure is provided, that it must be provided with informed consent.

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It is part and parcel.

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It is inextricably intertwined with whether or not the requirements to obtain compensation based upon negligence

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And it would be, as a matter of law, negligent not to have provided an informed consent.

[00:07:38] Speaker 03:
I understand what you're saying.

[00:07:39] Speaker 03:
You're saying that the issue of whether informed consent was provided is a question of law, maybe.

[00:07:45] Speaker 03:
Or you're saying that's a legal requirement.

[00:07:48] Speaker 00:
Yes.

[00:07:48] Speaker 03:
But I'm not sure that that converts the question of whether that was properly raised into a question of law.

[00:07:55] Speaker 00:
Well, at least the way that I read the Bozeman decision,

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said that the veterans citation to evidence contained in the record for the first time to the veterans court was not a new legal argument raised.

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We contend that in this case there is only one legal argument and that is did the secretary violate the requirements of 1151 and that it

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cannot be parsed out in between an argument that must be specifically raised as to whether or not informed consent was required because informed consent is required by the secretary's own regulation.

[00:08:37] Speaker 03:
And so when something's a legal requirement, your view on when and how it should be raised might differ than whether something is a factual issue being presented for the first time.

[00:08:48] Speaker 00:
That's correct.

[00:08:48] Speaker 00:
That would be absolutely correct.

[00:08:51] Speaker 02:
Unless there are further questions from the panel, I'll reserve the balance of my time.

[00:09:21] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:09:23] Speaker 01:
Mr. Serrano's appeal fails to raise any issue that falls within this Court's jurisdiction.

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Instead, Mr. Serrano has raised a challenge to the Veterans Court's application of well-settled law to fact.

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The fact, as has already been discussed, was that the Veterans Court made two factual determinations.

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First, that Mr. Serrano did not raise the issue of defective informed consent

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before the board, and second, that that issue was not raised by the record.

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Those two factual determinations are, of course, beyond the jurisdiction of this court.

[00:10:02] Speaker 04:
As to the first, Scott would say that because that is a substantive basis for the broader claim, that there shouldn't be issue exhaustion in those circumstances, right?

[00:10:17] Speaker 01:
Well, respectfully, your honor, what the Scott court said was that if it's not a procedural issue, there is the requirement that the Veterans Court look to the record, which is exactly what they did in this case.

[00:10:30] Speaker 01:
And as Judge Laurie mentioned earlier, both the board mentioned in its determination as well as the record indicated that there was informed consent.

[00:10:41] Speaker 04:
That's what I'm saying.

[00:10:43] Speaker 04:
You said there were two things.

[00:10:45] Speaker 04:
As to the first one,

[00:10:47] Speaker 04:
They have to look to the record.

[00:10:49] Speaker 04:
So it's really only the second one that would determine whether or not the claim was exhausted, right?

[00:10:58] Speaker 01:
Well, the two things that the Veterans Court looked at was one, whether it was in fact raised by Mr. Serrano affirmatively, and then secondarily, whether or not.

[00:11:11] Speaker 04:
But under Scott, he doesn't have to raise it if it's substantive, if it goes to the substantive basis for a claim.

[00:11:17] Speaker 01:
That's correct, Your Honor, but the Veterans Court complied with that.

[00:11:21] Speaker 01:
They looked to the record.

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They looked to whether or not a substantive claim had been raised.

[00:11:25] Speaker 04:
Which is what is more important, right?

[00:11:28] Speaker 04:
Yes.

[00:11:28] Speaker 04:
So assuming that Mr. Carpenter's right, that he didn't have to affirmatively raise it for there to be an obligation to look at the record to see if it is supported, even if he's right, the board actually looked at the record.

[00:11:48] Speaker 04:
right?

[00:11:49] Speaker 04:
And said it's not supported.

[00:11:51] Speaker 01:
That's correct, Your Honor.

[00:11:52] Speaker 01:
They're included in the board's decision.

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It's in the appendix at page 166.

[00:11:58] Speaker 01:
The board made a reference to the fact that informed consent was given.

[00:12:03] Speaker 01:
Now, they did not analyze that as a legal argument because it wasn't raised.

[00:12:10] Speaker 01:
At the appendix at page 71, Mr. Serrano affirmatively stated to the board that he had given informed consent.

[00:12:18] Speaker 01:
And when the Veterans Court reviewed that, they determined that those two things in conjunction, the fact that the record indicated that informed consent had been given and that Mr. Serrano said that to the board, made it such that the board did not have to address that separate legal theory because it was neither raised by Mr. Serrano nor by the record.

[00:12:51] Speaker 01:
And with regard to the other case that was earlier mentioned, the Bozeman decision, there's two points I'd like to make with regard to that decision, one of which has already been raised, which is the quote in the Bozeman case, which indicates that a question of issue exhaustion is a factual one beyond the determination of this court.

[00:13:17] Speaker 01:
That is correct.

[00:13:18] Speaker 01:
However, Mr. Serrano attempts to argue that the Bozeman case somehow supports his claim when, in fact, this court's reversal in that case was on a separate set of issues.

[00:13:34] Speaker 01:
Specifically, in Bozeman, the question was whether or not an appellant could raise to the Veterans Court, excuse me, not raise, whether or not an appellant could cite.

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new evidence to support a claim that had already been made or an argument that had already been made.

[00:13:54] Speaker 01:
As Mr. Serrano indicates in his opening brief at page 12, this was a new and independent basis to obtain relief.

[00:14:08] Speaker 01:
The argument of defective informed consent

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had not been raised and it was newly raised to the Veterans Court.

[00:14:16] Speaker 01:
That is distinguishable from the issue in the substantive issue in Bozeman, which was that it was only new evidence that was being cited to.

[00:14:27] Speaker 01:
But the legal precedent that the court highlighted in that case still stands.

[00:14:33] Speaker 01:
The question of whether or not issue exhaustion should be invoked

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is a discretionary one made by the Veterans Court that is beyond the jurisdiction of this Court.

[00:14:55] Speaker 01:
If the Court has no further questions, we would rest on the arguments in our briefs.

[00:15:01] Speaker 02:
Thank you, counsel.

[00:15:03] Speaker 02:
Mr. Coppenter has quite a bit of rebuttal time if he needs it.

[00:15:10] Speaker 00:
I'm sorry, your honor.

[00:15:11] Speaker 02:
You have quite a bit of rebuttal time if you need it.

[00:15:14] Speaker 00:
Thank you, your honor.

[00:15:16] Speaker 00:
May it please the court.

[00:15:17] Speaker 00:
It seems to me that the government's position is that informed consent can be determined because the VA said informed consent was given.

[00:15:29] Speaker 00:
That's not the legal test.

[00:15:30] Speaker 00:
The legal test of informed consent is whether or not it meets the requirements of the secretary's own regulation.

[00:15:38] Speaker 00:
Just saying so doesn't make it so.

[00:15:41] Speaker 00:
That's why this is a legal question and not a factual question.

[00:15:47] Speaker 00:
Attempting to separate informed consent, which is a necessary element to defeating a claim for benefits under 1151,

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simply cannot be separated.

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They are part and parcel of the claim for entitlement to compensation.

[00:16:06] Speaker 00:
There must be negligence, and that negligence can be demonstrated by the VA's own regulations by showing that there was no informed consent as a matter of law.

[00:16:19] Speaker 00:
And in order to meet the legal requirements for informed consent, the Secretary has identified what those requirements are by his own regulations.

[00:16:29] Speaker 00:
The distinction between Bozeman and Scott factually is an issue for this court to deal with in terms of how the question of issue exhaustion should or should not be applied in the context of an 1151 claim.

[00:16:50] Speaker 00:
Neither of those cases dealt with 1151.

[00:16:52] Speaker 00:
1151 is a statutory creation of Congress.

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that Congress will extend to veterans compensation benefits as though the condition were service-connected when the condition is not actually service-connected but is the product of negligent medical services provided by the VA.

[00:17:16] Speaker 00:
That simply cannot be separated as conveniently as either the lower court or the VA would attempt to have this court believe.

[00:17:25] Speaker 00:
Otherwise, if there's no further questions, I will surrender the balance of my time.

[00:17:29] Speaker 02:
Thank you.

[00:17:30] Speaker 02:
The case is submitted.