[00:00:00] Speaker 04:
This is Santiago Gallagher versus the Secretary of Veterans Affairs, 2020-22-31.

[00:00:09] Speaker 04:
Council, would you pronounce your name for us, please?

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

[00:00:19] Speaker 00:
My name is Bill Hopkins.

[00:00:20] Speaker 04:
Bill Hopkins.

[00:00:21] Speaker 04:
Thank you.

[00:00:22] Speaker 04:
We're ready when you are.

[00:00:40] Speaker 00:
Good morning.

[00:00:41] Speaker 00:
May it please the court.

[00:00:42] Speaker 00:
On behalf of Mr. Galavez, I do want to thank the court for this opportunity to present his appeal.

[00:00:48] Speaker 00:
The issue before the court is the correct interpretation of the Veterans Court Rule 28A.

[00:00:54] Speaker 00:
Specifically, Mr. Galavez reads this rule to create a low burden to raise an issue on appeal that must also include argument in support of that issue.

[00:01:04] Speaker 00:
Rather than read this rule to create a low burden, the Veterans Court instead impermissibly restricted the scope of Mr. Galvez's appeal by selectively reading his pleadings in a way that limited the issue he actually presented to his detriment.

[00:01:22] Speaker 00:
Instead of reading his brief to identify the issue he presented, which was the scope of the 1985 claim,

[00:01:30] Speaker 00:
The court instead interpreted his brief to raise a separate issue, whether an informal claim had been presented.

[00:01:37] Speaker 04:
Why do we have jurisdiction of this appeal?

[00:01:41] Speaker 04:
Your Honor, jurisdiction doesn't relate to facts, whether he argued his mental issue at the time he was claiming because of an ulcer.

[00:01:58] Speaker 00:
There certainly are a lot of facts involved in this, Your Honor.

[00:02:03] Speaker 00:
However, we believe that the issue here is how the Veterans Court interpreted its rule to require that the issue raised in, or rather to read the issue and how it was raised in his opening brief.

[00:02:23] Speaker 03:
What interpretation of the rule did they do?

[00:02:25] Speaker 03:
I mean, it seems to me that you're

[00:02:28] Speaker 03:
objecting more to their application of the rule rather than their interpretation of the rule.

[00:02:33] Speaker 00:
Right, Your Honor.

[00:02:34] Speaker 00:
So the way that the Veterans Court interpreted his rule to require more than just simply stating an issue under 28A-3, state the issue, and then under 28A-5 to also present an argument with contentions with respect to that issue.

[00:02:58] Speaker 00:
And the issue, again, was highlighted several spots in the brief, precisely the same.

[00:03:05] Speaker 03:
Well, there was a header, and it's in the table of contents.

[00:03:09] Speaker 03:
But there's nothing else, right?

[00:03:11] Speaker 03:
Am I missing something?

[00:03:13] Speaker 00:
There was a header, Your Honor, and then there was a statement of the issue, which was verbatim, what was in the header in the table of contents.

[00:03:21] Speaker 00:
And then the bullet point one,

[00:03:25] Speaker 00:
the argument, this is what the argument is.

[00:03:27] Speaker 00:
And it was listed three times precisely the same.

[00:03:30] Speaker 03:
But there was no substantive discussion under the header in the text of the brief, right?

[00:03:36] Speaker 00:
There was, Your Honor.

[00:03:36] Speaker 00:
Yes.

[00:03:38] Speaker 00:
In the brief, beginning on page 50 of the appendix,

[00:03:55] Speaker 00:
You can see first on page 53, statement of the issues, which is as required by the rule under rule 28A3, a statement of the issue presented.

[00:04:08] Speaker 00:
And then again, under the argument, the exact same issue and then his contentions as to why the scope of that 1985 claim.

[00:04:18] Speaker 00:
I'm sorry, where under the argument?

[00:04:21] Speaker 00:
The argument, Your Honors, begins on page

[00:04:26] Speaker 00:
55 and extends through 58, and then, of course, the other issue on page 59.

[00:04:34] Speaker 03:
So where are your contentions in support of what you put in the statement of issues?

[00:04:41] Speaker 00:
The contentions, Your Honor, are, again, from page 55 through 58.

[00:04:46] Speaker 00:
And those four are how we describe or explain

[00:04:51] Speaker 00:
the basis for our assessment that the 1985 claim should have included within its scope the mental health or psychiatric disability.

[00:05:03] Speaker 03:
Is there anything other than the statement on page 58 that say it reasonably identifies?

[00:05:12] Speaker 03:
It says in turn presents an informal claim.

[00:05:18] Speaker 03:
Is there anything more than that?

[00:05:21] Speaker 03:
I'm sorry.

[00:05:22] Speaker 03:
The second paragraph, last line.

[00:05:26] Speaker 03:
I'm sorry, Your Honor.

[00:05:27] Speaker 03:
Is there anything more in all of these pages that you're saying supports that informal claim assertion other than the last sentence of the second paragraph?

[00:05:39] Speaker 00:
on page 58.

[00:05:40] Speaker 00:
No, you're wrong.

[00:05:41] Speaker 00:
And that's really one of the major issues that we have with this is that that statement was actually a quote taken from Shea B. Wilkie, where this court was ruling on and actually clarified how the courts are to determine and how the VA is to determine the proper scope of a claim.

[00:06:03] Speaker 03:
There's some confusion here.

[00:06:04] Speaker 03:
The question is, did you really assert

[00:06:08] Speaker 03:
a claim about an informal claim?

[00:06:10] Speaker 03:
No, Your Honor.

[00:06:12] Speaker 03:
OK.

[00:06:12] Speaker 03:
Never.

[00:06:14] Speaker 01:
So why isn't the Veterans Court's decision that you didn't adequately raise the issue itself a fact question, which is beyond our jurisdiction?

[00:06:27] Speaker 00:
That question, your honor, is very difficult to answer.

[00:06:30] Speaker 00:
And I think the best way that I can help this court try to understand why it is a legal issue is kind of twofold.

[00:06:39] Speaker 00:
Number one is the literal interpretation of the rule requires simply that you identify the issue and then contentions as to why that issue is correct, or your interpretation, or your argument to that issue.

[00:06:55] Speaker 00:
Number two is.

[00:06:57] Speaker 01:
Because it's not misinterpreting the rule to say that your argument has to be identified and sufficiently elaborated, right?

[00:07:05] Speaker 00:
Well, it is because the standard under the rule, we believe, is that you simply identify the issue and provide contingence.

[00:07:18] Speaker 00:
And what the Veterans Court did instead was to contort what was put in the issue, the statement of the issue,

[00:07:27] Speaker 00:
and pull, as Judge O'Malley identified, a single statement, which was a quote from another case, to say, no, you argued for an informal claim.

[00:07:38] Speaker 00:
And the second problem with the way that they interpreted this is that Mr. Galavez, to date, has not received a decision on the issue to which he presented.

[00:07:48] Speaker 00:
And under the statutory jurisdiction 7261, the Veterans Court shall provide a decision on the issue presented.

[00:07:57] Speaker 00:
And Mr. Gallabas has not received that decision.

[00:08:00] Speaker 03:
I guess what I'm trying to understand is that how could this be asserted other than as an informal claim?

[00:08:07] Speaker 03:
I mean, where did you assert an informal claim with respect to this broader psychological condition?

[00:08:16] Speaker 00:
Your Honor, we never asserted that he filed an informal claim.

[00:08:20] Speaker 00:
From the beginning, the entire issue was- The Veterans Court thought you did.

[00:08:25] Speaker 03:
And so what I'm saying is, how could this be anything other than saying that it's an informal claim?

[00:08:32] Speaker 03:
Where did you assert a formal claim for a psychiatric disability in connection with his ulcer?

[00:08:40] Speaker 00:
I understand your question, Your Honor.

[00:08:42] Speaker 00:
So number one.

[00:08:43] Speaker 00:
In our statement of issue, in the header, in the table of contents, et cetera, very explicitly said that the board erred by failing to identify the communication, the 1988 communication, that the lay evidence reasonably identified a disability

[00:09:03] Speaker 00:
as a residual of his ulcer, and the 1985 claim included a request for benefits for a psychological disability.

[00:09:11] Speaker 00:
Now, he filed a formal application of V8 form 526 for the ulcer disability in 1985.

[00:09:20] Speaker 03:
So how did that include a claim for psychiatric disabilities connected to the ulcer?

[00:09:27] Speaker 00:
Because, again, the 1985 claim was still active in 1988.

[00:09:32] Speaker 00:
He had filed the appeal, the VA form 9, the substantive appeal to the board.

[00:09:38] Speaker 00:
And it was that document where he said, oh, my ulcer is causing me psychiatric problems.

[00:09:46] Speaker 00:
And I believe it was a nervous condition, I think, is how he termed it.

[00:09:55] Speaker 00:
And when we look at Shea, particularly Shea, but also Sellers, that was the issue there, was that the veteran had filed a formal application and evidence in Shea.

[00:10:06] Speaker 00:
It was medical evidence.

[00:10:08] Speaker 00:
In this case, we were asserting lay evidence is also sufficient.

[00:10:12] Speaker 03:
Again, where do you say that the 1985 claim was itself a formal claim for psychiatric benefits?

[00:10:20] Speaker 03:
And you're saying we're supposed to say that it's the later claim that somehow made

[00:10:26] Speaker 03:
A claim for 1985?

[00:10:29] Speaker 00:
Your Honor, the 1985 claim was for disability compensation resulting from his ulcer.

[00:10:37] Speaker 00:
And later, during the pendency of that claim, and as we know that under 3156B, all evidence that is produced with respect to that claim is deemed submitted with that claim.

[00:10:51] Speaker 00:
While that claim was still pending, or at least the appeal was still active, he then asserted, and also the ulcer is causing me a psychiatric disability, a nervous condition as he termed it.

[00:11:06] Speaker 00:
under established case law, Clemens in particular, that particularly with psychiatric disabilities, the veteran is not really competent to give a diagnosis, but rather he describes.

[00:11:19] Speaker 00:
And I think that in Shea, this court clarified that at least with a degree of generality, they need to identify some condition or disability.

[00:11:30] Speaker 00:
And that's what the argument was presented in the opening brief.

[00:11:35] Speaker 03:
OK, so this is exactly what you put in your reply brief that the Veterans Court said was new.

[00:11:44] Speaker 00:
Yes, Your Honor.

[00:11:44] Speaker 00:
That was the clarification that we provided because we recognized that the, well, for one, the secretary in his reply asserted that there was no intent.

[00:11:58] Speaker 00:
And so we explained that intent is not needed because there never was a second claim.

[00:12:04] Speaker 00:
It was always alleged and argued that the issue was.

[00:12:09] Speaker 03:
And this is the part that's missing from your opening brief.

[00:12:14] Speaker 00:
Yes, Your Honor, it wasn't clear, but it's not missing.

[00:12:18] Speaker 00:
I think that particularly the issue is what I really think that the rule is focused on is the statement of the issue is that the 1985 claim necessarily included a request for disability from a psychological disorder.

[00:12:35] Speaker 00:
And that is the issue.

[00:12:38] Speaker 00:
And whether the contentions which are present, again, the rule only requires that it be present, the clarification was needed in part in large degree because we had not fully or adequately explained why the 1985 claim was still pending.

[00:13:05] Speaker 04:
Counsel, would you like to save the remainder of your time?

[00:13:08] Speaker 04:
I do, Your Honor.

[00:13:25] Speaker 02:
May it please the court, the secretary is seeking this court's affirmance of the Veterans Court's decision.

[00:13:30] Speaker 02:
The Veterans Court properly applied its own rules, rule 28, to decline to consider an argument raised for the first time.

[00:13:42] Speaker 04:
Did I hear you say we should affirm?

[00:13:44] Speaker 02:
Yes.

[00:13:45] Speaker 04:
Not dismiss?

[00:13:47] Speaker 02:
The jurisdictional question, Your Honor, is a close one.

[00:13:50] Speaker 02:
This case is on all fours with this court's prior decision in Carbino, where the court did entertain jurisdiction and rule on the merits to affirm.

[00:14:01] Speaker 02:
So following Carbino, this court could do the same in this instance.

[00:14:07] Speaker 03:
I may have made it more confusing walking through his

[00:14:13] Speaker 03:
places he says his opening brief flagged this issue.

[00:14:18] Speaker 03:
So why isn't the heading or the statement of issues in his opening brief sufficient to assert this 1985 formal claim?

[00:14:31] Speaker 02:
Yes, Your Honor.

[00:14:31] Speaker 02:
So the identification of issues is not sufficient.

[00:14:35] Speaker 02:
Rule 28 has both subsection A3 and subsection A5.

[00:14:41] Speaker 02:
The Veterans Court rule 28A3 requires that the opening brief shall contain a statement of the issues.

[00:14:46] Speaker 02:
And as Your Honor notes, there was an identification of this formal claim theory in the opening brief.

[00:14:52] Speaker 02:
But rule 28A5 goes on to require, and I quote from the rule, an argument beginning with a summary and containing the appellant's contention with respect to the issues and the reasons for those contentions with citations to the authorities

[00:15:06] Speaker 02:
and pages of the record before this agency.

[00:15:10] Speaker 02:
Pursuant to that rule and this court's well-established interpretation of the Veterans Court Rule 28, as well as its own federal rule of appellate procedure 28, it is not enough to simply identify an issue.

[00:15:25] Speaker 02:
A party has to develop that issue.

[00:15:27] Speaker 02:
Arguments that are not sufficiently developed or not developed at all, this court has held in its Smith-Kline decision, are waived.

[00:15:36] Speaker 02:
which is exactly what the Veterans Court found in this case.

[00:15:39] Speaker 02:
It's not enough to simply throw out an idea.

[00:15:44] Speaker 02:
Smith Klein talks about the following things being insufficient.

[00:15:48] Speaker 02:
A perfunctory allegation, a mere statement of disagreement, a mere assertion of error, a passing reference to an issue, or a skeletal argument are all insufficient to preserve that argument for purposes of an appeal.

[00:16:02] Speaker 02:
And that's what we have here, right?

[00:16:04] Speaker 02:
an identical sort of statement of position or statement of issue in the table of contents and then again in the later header.

[00:16:13] Speaker 02:
But there's no actual development of that argument.

[00:16:16] Speaker 02:
And as the Veterans Court held, not only was there no development of the formal claim theory in the opening brief, but the formal claim theory raised for the first time in the reply was also inconsistent with the position taken in the opening brief.

[00:16:30] Speaker 02:
So there really was no argument

[00:16:33] Speaker 02:
that the Veterans Court was somehow on notice that this was Mr. Galavez's position.

[00:16:40] Speaker 03:
In fact, on page 58 on the appendix, he specifically said this raises an informal claim, right?

[00:16:54] Speaker 02:
Correct.

[00:16:54] Speaker 02:
So to give the panel some comparisons, page 58, as Your Honor notes,

[00:17:01] Speaker 02:
expressly argues that the 1988 statement raised an informal claim.

[00:17:07] Speaker 02:
Then on Appendix 90, Mr. Galvez asked the court to find that the 1985, I'm sorry, let me back up for a second.

[00:17:17] Speaker 02:
In Appendix 58, which is the opening brief, Mr. Galvez argues that the 1988 statement raised an informal claim.

[00:17:27] Speaker 02:
Fast forward to the reply brief.

[00:17:29] Speaker 02:
Appendix 83, table of contents, knowledge as a change in position.

[00:17:34] Speaker 02:
85 to 86, he then says, directly contrary to the opening brief, Section 3.155A does not apply.

[00:17:44] Speaker 02:
And he's not seeking an informal claim for benefits.

[00:17:48] Speaker 02:
That's directly contrary to the position taken on Appendix 58 in the opening brief.

[00:17:53] Speaker 02:
Then fast forward to the end of the reply brief, appendix 89 to 90.

[00:17:57] Speaker 02:
He specifically acknowledges, again, a change in position.

[00:18:01] Speaker 02:
Characterizes it as a clarification, but it is a change in position from originally his theory of informal claim to now the theory raised in the reply brief of formal claim.

[00:18:12] Speaker 02:
It's also important to understand the Veterans Court's review of the briefs and the record in the context in which it was looking at.

[00:18:21] Speaker 02:
If we look at earlier filings, what Mr. Gallabez asserted through a representative to the VA and to the board were all informal claim theories.

[00:18:32] Speaker 02:
So it was then consistent, that his opening brief before the Veterans Court continued to assert the informal claim theory.

[00:18:39] Speaker 02:
It truly was late in the game that the

[00:18:43] Speaker 02:
that the allegation was first made, that there was a formal claim.

[00:18:46] Speaker 02:
And for that reason, the Veterans Court was within its discretion to decline to consider it.

[00:18:58] Speaker 02:
If the panel has no further questions, we ask that you affirm.

[00:19:01] Speaker 04:
Thank you, Ms.

[00:19:04] Speaker 04:
Bennett.

[00:19:04] Speaker 04:
This is Joe Hopkins.

[00:19:09] Speaker 04:
Two and a half minutes.

[00:19:14] Speaker 00:
Thank you, Your Honor.

[00:19:15] Speaker 00:
I have just a couple points.

[00:19:16] Speaker 00:
I hope I have enough time to get through them all.

[00:19:19] Speaker 00:
First off, I want to just point to the appendix at page 11.

[00:19:26] Speaker 00:
The Veterans Court ruled, specifically, the appellant raises new issues in his reply brief.

[00:19:32] Speaker 00:
And the issue never changed.

[00:19:35] Speaker 00:
The issue was always the scope of the 1985 claim.

[00:19:39] Speaker 00:
And the contentions may have been a bit unclear and not adequate and not

[00:19:49] Speaker 00:
The contentions were not as clear as they could have been, but the issue never changed.

[00:19:53] Speaker 00:
And the Veterans Court did not say until responding to our motion to reconsider that perhaps maybe there were some problems with the arguments.

[00:20:02] Speaker 00:
But again, I cannot emphasize enough that the veteran here raised a very specific issue that asked the court to determine the scope of his 1985 claim.

[00:20:12] Speaker 00:
And that issue has still not received a decision from the court.

[00:20:18] Speaker 00:
With regard to what was presented to the board, number one, it was an agent and not an attorney, and this court's case law specifically treats agents and attorney representation differently, particularly at the board.

[00:20:33] Speaker 00:
And also, it is irrelevant what was argued to the board, because the board has a legal obligation.

[00:20:39] Speaker 00:
And I point to Scott B. McDonald to adequately develop and apply all applicable laws and review the entire record when issuing a decision on appeal.

[00:20:50] Speaker 00:
And if this was an issue, a legal issue, that should have been raised by the record, then the board, regardless of who said what to the board, had that obligation.

[00:21:02] Speaker 00:
And.

[00:21:06] Speaker 00:
As far as discretion is concerned, the secretary opened up by asserting that they were correct in refusing to.

[00:21:15] Speaker 00:
It implies that there was some discretion here.

[00:21:17] Speaker 00:
The discretion with the court rests solely with whether to consider an argument not raised.

[00:21:24] Speaker 00:
They do not have discretion under 7261A to refuse to consider an argument or rather an issue

[00:21:33] Speaker 00:
that is properly raised under its rules.

[00:21:35] Speaker 00:
And in sum, I would just like to ask that this court find that the Veterans Court improperly restricted its view of its own rule to find that Mr. Galvez did not raise the issue and that you remand the decision with orders for the court to give him a decision on the issue that he presented.

[00:21:57] Speaker 04:
Thank you, counsel.

[00:21:58] Speaker 04:
We'll take the case on the submission.