[00:00:04] Speaker 02:
We will hear argument next in number 211226, Gay against McDonough.

[00:00:12] Speaker 02:
Mr. Brown.

[00:00:14] Speaker 03:
Good morning, your honor.

[00:00:15] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
May it please the court?

[00:00:21] Speaker 03:
Shirley Gay married Alvin Gay after World War II and remained married to him when he went away to war again, to the Korean War.

[00:00:33] Speaker 03:
And then after his return, he passed away as a disabled veteran.

[00:00:40] Speaker 03:
Mr. Gay sought benefits for hearing loss in his right ear, essentially from the 1950s until his death in 2013.

[00:00:54] Speaker 03:
Mrs. Gay is now the replacement stand-in claimant

[00:01:03] Speaker 03:
And she's been to the Court of Appeals for Veterans Claims.

[00:01:10] Speaker 03:
She's had remands from both.

[00:01:12] Speaker 03:
And the case went back on appeal when her claim for his hearing loss was denied again at the Board of Veterans Appeals after the remand.

[00:01:24] Speaker 03:
And then the denial at the Board of Veterans Appeals was affirmed at the Court of Appeals for Veterans Claims.

[00:01:33] Speaker 03:
Essentially, our argument has been that during the romance, the VA was instructed to get medical opinions about the cause of the veterans hearing loss, which stems from a lifetime of

[00:02:00] Speaker 03:
ear infections with a perforation.

[00:02:02] Speaker 02:
Can I just interrupt you?

[00:02:03] Speaker 02:
As you know, our jurisdiction is limited to legal questions and your brief, I think rightly, tries to identify a legal question, which as I understand it is that you think as a result of the Supreme Court's decision in the Regent's case, the analysis that the Veterans Court affirming the board conducted

[00:02:27] Speaker 02:
on whether to look at this, some factual aspect of the Cattaro fevers, how one says it, and whether it had an obligation, the board, to inquire into that on the facts of this case, or more legally, whether the Robinson standard

[00:02:53] Speaker 02:
for defining when such an obligation is triggered is incorrect, particularly, as I think you argue, now implied by regents.

[00:03:09] Speaker 02:
We don't get to decide the factual or as applied questions of whether the record really did contain enough evidence to trigger the Robinson standard.

[00:03:21] Speaker 02:
I think you are arguing in your blue brief

[00:03:23] Speaker 02:
that there's something wrong with the standard that was actually applied, legally wrong, now.

[00:03:30] Speaker 02:
You know that, right?

[00:03:34] Speaker 03:
I didn't argue that there was a mistake made at the Court of Appeals for Veterans Claims in the memorandum decision.

[00:03:42] Speaker 03:
My argument was simply that maybe the goalpost got moved by the regents' case and the decision in regents.

[00:03:49] Speaker 03:
and the fact that it was decided during that kind of intervening period of time between the issuance of the memorandum decision and our time limit to file a motion to reconsider.

[00:04:01] Speaker 03:
Since that case had been decided during that period of time and it came out

[00:04:07] Speaker 03:
from the Supreme Court as a slip opinion, I immediately filed the motion to reconsider based on the fact that this decision had been issued by the Supreme Court.

[00:04:17] Speaker 02:
But just so I understand it, the only legal contention you're making to us is that if we look at regents, we should now say that the Robinson standard is wrong.

[00:04:32] Speaker 02:
Have I misunderstood that?

[00:04:35] Speaker 03:
I'm arguing my case by saying that Robinson moved the goalposts.

[00:04:43] Speaker 03:
Chief Justice Roberts specifically addressed the issue of a clean slate or a dirty slate.

[00:04:52] Speaker 03:
So when he said that they're not writing on a clean slate, then an agency has an obligation to look at the issues that are brought up

[00:05:05] Speaker 03:
within the record.

[00:05:06] Speaker 03:
And in this case, what I'm saying is that the Cattaro fever was always in the record.

[00:05:12] Speaker 02:
And it's in the testimony from the Board of... What difference do you see between the Robinson standard and the words you just used to

[00:05:24] Speaker 02:
to describe what you take out of Regents.

[00:05:27] Speaker 02:
Isn't Robinson itself, doesn't it say, the board's obligation is precisely to attend to both what the claimant has presented, the arguments, and also what is evident from the record.

[00:05:43] Speaker 02:
And in this case, the Veterans Court, affirming the board, applied that standard and said on this crucial question of service connection, I'm sorry, no, of connection of the ear ailment, ear degradation to catarro fever, that is not actually apparent from the record.

[00:06:09] Speaker 02:
Isn't the Robinson standard essentially the Regents standard already?

[00:06:16] Speaker 03:
I made the argument because the language is different, and pursing the language based on the fact that I believe that Chief Justice Roberts broadened what the existing law was by saying simply that they're not writing on a clean slate.

[00:06:39] Speaker 03:
If they're not writing on a clean slate, they need to look at what's in the record.

[00:06:45] Speaker 03:
It gives us one more bite at the apple.

[00:06:47] Speaker 02:
What do you think the clean slate or blank slate language means?

[00:06:53] Speaker 02:
In the regions.

[00:06:56] Speaker 02:
The meaning was, we once had this policy, we're now changing the policy.

[00:07:01] Speaker 02:
And when you change policy A to something else, you have certain obligations to do two things.

[00:07:08] Speaker 02:
Attend to the fact that policy A had two parts, not one part.

[00:07:12] Speaker 02:
And second, that somebody might've relied on policy A.

[00:07:16] Speaker 02:
So what's the counterpart to the blanks, the not on a blank slate here, since there's no change of policy here?

[00:07:28] Speaker 03:
There's no change in policy and there's no reliance.

[00:07:33] Speaker 03:
These people didn't give something up because they were following an existing policy.

[00:07:40] Speaker 03:
These people have consistently asked for the benefit that they've been asking for.

[00:07:46] Speaker 03:
But in this case, I'm just going to the broader language from Chief Justice Roberts, where he actually talks about that.

[00:07:57] Speaker 03:
Chief Justice Roberts also, he went back to the same case that we briefed for Mrs. Gay, and that's the State Farm case.

[00:08:09] Speaker 03:
And he's looking at just whether something was entirely overlooked.

[00:08:13] Speaker 03:
And in this case, the contral fever is not mentioned.

[00:08:17] Speaker 03:
in the responses to the remand.

[00:08:22] Speaker 03:
There's some confusion here because we have lay people from rural Oklahoma talking about a fungal infection that started in the South Seas during World War II.

[00:08:36] Speaker 03:
And I know I'm getting back to the facts, but the facts showed that he was treated for pneumonia and they call it catarro fever.

[00:08:45] Speaker 03:
And there's testimony in the hearing record, on the first page of the hearing record, at page 199 of the appendix, where I think it's the daughter is testifying about the fact that he had pneumonia.

[00:09:00] Speaker 03:
He developed a hole in his ear, and he's been having drainage ever since.

[00:09:05] Speaker 03:
And so the daughter wasn't alive at the time.

[00:09:09] Speaker 03:
This predates the daughter's.

[00:09:11] Speaker 03:
And the marriage to the wife hadn't happened for another four years.

[00:09:15] Speaker 03:
However, that's the story the family knew.

[00:09:18] Speaker 03:
That's the family the story told when they were at the agency level going through their hearing.

[00:09:24] Speaker 03:
And then what happened was on the application for benefits and on the application to reenlist into the military to go to the Korean War, the veteran himself said, I've had weepy ears my whole life.

[00:09:40] Speaker 03:
This is a problem that's gone on forever.

[00:09:43] Speaker 03:
But as we know with the VA,

[00:09:45] Speaker 03:
There's two statutes, 38 USC 1111, 38 USC 1153.

[00:09:52] Speaker 03:
If it's not listed on the initial application to join the military, then it's 1111.

[00:10:03] Speaker 03:
So that gives the burden shift to the agency.

[00:10:06] Speaker 03:
And the burden shift to the agency shows the agency has to prove by clearing unmistakable evidence, one, that it didn't pre-exist,

[00:10:15] Speaker 03:
or that it did pre-exist, and two, that there was no aggravation.

[00:10:19] Speaker 03:
So under that burden shift, I think they've met their burden shift when they came back and said, well, look, we went out and hired experts, and the experts said that he told us that it pre-existed.

[00:10:32] Speaker 03:
And he said that that was from scarlet fever when he was a child.

[00:10:37] Speaker 03:
But we also have this testimony about the

[00:10:42] Speaker 03:
and the evidence in the record of him having the catarro fever, which the testimony called pneumonia, that caused the hole in the ear to start, from which the weeping became a constant problem.

[00:10:54] Speaker 03:
The treatment records show that the treatment started for that in 1947 and halfway in between during that break in service.

[00:11:03] Speaker 03:
But that doesn't mean that's when it started.

[00:11:06] Speaker 03:
And the fact that nobody addressed the catarro fever and nobody looked at the catarro fever is interesting because even at the time, Chief Judge Davis, now Senior Judge Davis, said this is an antiquated term.

[00:11:19] Speaker 03:
And he put that in a footnote in his memorandum of opinion.

[00:11:22] Speaker 03:
And I think that the government briefed that, too, in their brief.

[00:11:27] Speaker 03:
They actually quote what Chief Judge Davis said about the fact that this is an antiquated term.

[00:11:33] Speaker 03:
And the fact that it's an antiquated term coupled with the fact that it's not mentioned specifically.

[00:11:41] Speaker 03:
But the pneumonia is in the testimony.

[00:11:44] Speaker 03:
And the story that daddy told the daughter is that it's been in their mind from the start that he got pneumonia in the Navy during World War II, that he was treated.

[00:11:57] Speaker 03:
And the records show that.

[00:11:58] Speaker 03:
But they didn't call it pneumonia.

[00:11:59] Speaker 03:
They called it cataral fever.

[00:12:02] Speaker 03:
And just as a side note,

[00:12:04] Speaker 03:
The treatment notes for the pneumonia do say that a chest X-ray showed that there was inflammation in the lungs at the time that he was treated for the catarro fever.

[00:12:22] Speaker 01:
One of the problems, sir, with cases like this, which we're now talking about the facts of this case, and your argument is that the CAVC made a mistake

[00:12:33] Speaker 01:
when they didn't appreciate what you're saying, when they concluded that the Cattaro condition, that there was not apparent in the record that that had led to his hearing loss.

[00:12:48] Speaker 01:
So I've said it once or twice before to counsel like you, if you don't win,

[00:12:56] Speaker 01:
At this court, it's because you didn't have a legal argument that the conversation you had with the presiding judge, which wasn't Robinson really giving in the veteran setting the degree of review that the Supreme Court required in regents in an APA setting, because the CAVC does require

[00:13:18] Speaker 01:
that issue is not raised by the veteran nonetheless have to be looked at if they're apparent.

[00:13:23] Speaker 01:
So if this court concludes that you're not going to win on the legal issue, that the standard that was used was Robinson was wrong, you have to explain to your client that the reason why she didn't prevail is because the CAVC stopped you on the fact issue.

[00:13:45] Speaker 01:
I mean, I'm hearing you talking.

[00:13:47] Speaker 01:
And if I were a CAVC judge, I might have said, I think you made a good case that there was a sufficient connection between the Cattaro fever and the hearing loss.

[00:13:58] Speaker 01:
But by the law, it doesn't allow me to listen to that argument on the facts.

[00:14:04] Speaker 03:
Your Honor, I appreciate that fact.

[00:14:06] Speaker 03:
And I understand.

[00:14:07] Speaker 01:
Because I think lots of clients, lots of veterans or veteran survivors, have trouble

[00:14:13] Speaker 01:
appreciating and understanding what the role of this court is in that whole process.

[00:14:19] Speaker 01:
As you well know, from your experience, the factual issues that are tied up in assessing veterans' claims are complex.

[00:14:29] Speaker 01:
And when Congress created this court, it said, we want the keeper of the fact to be the CAVC, a newly created court that would ride herd on the regional offices and the BVA

[00:14:41] Speaker 01:
the place where you go to say, well, I got the facts wrong.

[00:14:44] Speaker 01:
And so that court, over what, 30 years, 40 years, has developed real expertise in feeling where there are mistakes in facts.

[00:14:55] Speaker 01:
This court doesn't have any experience with feeling those factual distinctions.

[00:15:01] Speaker 01:
So what you're saying to me in the last four minutes of your argument

[00:15:06] Speaker 01:
Sounds appealing, but I'm borrowed by law from ruling in your favor on those grounds.

[00:15:13] Speaker 01:
And so my point is, I think it's important for the clients, whether it's a veteran or survivor, to appreciate what the division of authority has been by the Congress in who gets to decide which kind of issue in a veteran's case.

[00:15:29] Speaker 03:
Your Honor, I appreciate everything you said.

[00:15:33] Speaker 03:
Thank you.

[00:15:35] Speaker 03:
All I would say to that is if you agree with me that the Regents case moved the goalposts, then I ask for a remand.

[00:15:45] Speaker 03:
If the cases say the same thing using different words, then I don't get one.

[00:15:52] Speaker 03:
And I understand that.

[00:15:53] Speaker 03:
But I'm here to ask you to look at that in personal language to tell me whether you agree with me that they did move the goalposts.

[00:16:03] Speaker 02:
Um, you have used your rebuttal, but you will restore the rebuttal time, but we should hear from the government.

[00:16:10] Speaker 03:
Thank you, your honor.

[00:16:33] Speaker 00:
In the VA disability compensation system, the Department of Veterans Affairs has to review and consider all theories of entitlement that are either expressly raised by the claimant or evident from the record before the Department.

[00:16:52] Speaker 00:
In this case, the claimant, Mrs. Gay, seems to try to expand that obligation to also include theories of entitlement that are merely possible or conceivable, even though no one expressly raised them and even though the record does not indicate their viability.

[00:17:09] Speaker 00:
Mrs. Gay offers nothing from Title 38 that would support that reading.

[00:17:14] Speaker 00:
And in fact, as we point out in our briefing, Title 38 supports the case law as it stands today.

[00:17:21] Speaker 00:
Instead, Mrs. Gay only points to the Regents case, a recent Supreme Court decision about the Administrative Procedure Act.

[00:17:29] Speaker 00:
And for the reasons we explained, that case really is not very relevant to the issues before the court.

[00:17:35] Speaker 00:
Number one, that is because the board and the Department of Veterans Affairs more broadly is not directly governed.

[00:17:42] Speaker 00:
by the Administrative Procedure Act.

[00:17:44] Speaker 00:
I think that's clear from both the... Right, putting that aside.

[00:17:48] Speaker 00:
Sure.

[00:17:49] Speaker 00:
So that's number one.

[00:17:50] Speaker 00:
Number two, regents dealt with a very specific scenario in which an agency has a policy and then it changes policy.

[00:17:59] Speaker 00:
And the change creates reliance interests that the agency then has to account for.

[00:18:04] Speaker 00:
That is not the situation here.

[00:18:05] Speaker 00:
And I think I heard my friend on the other side just say that there is no change in policy here.

[00:18:13] Speaker 00:
There are no reliance interests here.

[00:18:14] Speaker 00:
And if that's the case, then Regence is simply an applicant.

[00:18:17] Speaker 01:
You think Regence is limited to change in policy cases?

[00:18:21] Speaker 00:
We believe so, Your Honor.

[00:18:22] Speaker 00:
Yes.

[00:18:22] Speaker 00:
Really?

[00:18:23] Speaker 00:
Regence specifically dealt with a DHS policy, the DACA policy,

[00:18:28] Speaker 01:
Well, I realize that's the setting, but don't you think regents have a broadcast to a broader audience of APA cases than simply change in policy cases?

[00:18:37] Speaker 00:
So regents has numerous holdings.

[00:18:40] Speaker 00:
The specific point from regents that we think Mrs. Gay is raising here

[00:18:46] Speaker 00:
we think is in fact limited to change policy.

[00:18:49] Speaker 00:
So for instance, in the Regents case, the Supreme Court cited the Encino Motorcars v Navarro case, which is another APA decision based entirely on an agency changing policy and therefore shifting reliance interests because of that change in policy.

[00:19:09] Speaker 00:
So we think the part of Regents that Mrs. Gay relies on here

[00:19:14] Speaker 00:
That part only applies to a change in policy.

[00:19:17] Speaker 00:
And number three, even if the court were to consider the regents' case, we think the Supreme Court made clear there that no agency has an obligation to- So you're really arguing that Robinson is much broader than regents.

[00:19:33] Speaker 01:
Robinson, from coming up from the CAVC, from the Veterans Administration, isn't limited to a hypothetical that would create a change in condition type setting.

[00:19:44] Speaker 01:
You know, where analysis was changed in the process of it.

[00:19:48] Speaker 01:
So you're essentially arguing that Robinson is vastly broader.

[00:19:54] Speaker 00:
It's not so much that Robinson is broader.

[00:19:56] Speaker 00:
It's more that Robinson deals with... Robinson covers every issue.

[00:20:00] Speaker 01:
Does it not?

[00:20:01] Speaker 01:
Every fact issue.

[00:20:02] Speaker 01:
It absolutely does.

[00:20:05] Speaker 00:
Absolutely.

[00:20:06] Speaker 00:
But the standard that the Veterans Court announced in Robinson 1 and the Discord announced in Robinson 2, that standard draws from Title 38.

[00:20:14] Speaker 00:
So it is specific to the Veterans Disability Compensation System.

[00:20:19] Speaker 00:
That's not the case for regents, which deals with the APA more broadly.

[00:20:23] Speaker 00:
So we think the Robinson standard, again, as the Veterans Court announced in Robinson 1 and as Discord adopted in Robinson 2,

[00:20:31] Speaker 00:
We think that is the standard that should apply.

[00:20:34] Speaker 00:
And under that standard, there is no error here from the Court of Veterans' appeals.

[00:20:41] Speaker 02:
Now, I realize that we are limited to legal questions.

[00:20:46] Speaker 02:
But can you give a little hint about why the references

[00:20:53] Speaker 02:
in the record to pneumonia as A, having been something that Mr. Gay suffered, and B, at least testimonial evidence that somebody thought that the future ear problems were related to that, why that

[00:21:13] Speaker 02:
Doesn't meet the Robinson standard again.

[00:21:16] Speaker 02:
I will repeat Judge Clevenger So well explained that's not something we can actually decide but I'm curious what what your view on that is sure I'm happy to address it.

[00:21:29] Speaker 00:
So I'll start from your last point judge Toronto the testimony that was cited by my calling on the other side is

[00:21:38] Speaker 00:
That testimony, we read a little bit different.

[00:21:41] Speaker 00:
That is in the context of Mr. Gay's widow and Mr. Gay's daughter making an argument about a unique South Seas fungus that Mr. Gay developed during his service.

[00:21:52] Speaker 00:
That's not the same as the Cattarald fever or pneumonia argument, which is slightly different.

[00:21:57] Speaker 00:
And on the fungus issue, that South Seas fungus, that is something that the regional office and the board both looked at in depth.

[00:22:07] Speaker 02:
Right.

[00:22:08] Speaker 02:
But I guess I had understood, um, counsel for Mrs. Day to say that there was evidence of pneumonia then called cataral fever, or then one of the things that fell under the broader category, cataral fever, and also evidence that

[00:22:28] Speaker 02:
that pneumonia had something to do with the future ear problems.

[00:22:32] Speaker 02:
Did I understand you right just now to say you don't think that second piece is actually in the record?

[00:22:38] Speaker 00:
That's exactly right, Your Honor.

[00:22:39] Speaker 00:
So there is certainly a record that says Mr. Gay had cataral fever, which as we point out, that's simply an old term for a variety of respiratory conditions like pneumonia, but also like the flu or the common cold.

[00:22:55] Speaker 00:
While there is a record talking about cataral fever, there is nothing in the record to indicate cataral fever as a possible theory of entitlement for the specific disability claimed by Mr. Gay and later Mrs. Gay, which is ear damage or hearing loss.

[00:23:12] Speaker 00:
There is no inherent connection between the two.

[00:23:14] Speaker 00:
And because of that, we think the Veterans Court correctly decided that there is nothing in the record that would trigger a Robinson analysis.

[00:23:26] Speaker 00:
And we think that's absolutely correct.

[00:23:30] Speaker 02:
But in any event, it's not something we get to decide.

[00:23:33] Speaker 00:
That's right.

[00:23:34] Speaker 00:
That's right.

[00:23:34] Speaker 00:
As this court made clear in Robinson 2 and the Veterans Court made clear in Robinson 1, the line between what is and is not in the record before the department, that's a highly factual question that requires a court to look at the specific disability claimed, at the record in the specific case, and then try and figure out in what way those two connect to each other.

[00:23:55] Speaker 00:
And that's the kind of analysis that this court does not have jurisdiction to review under 7292.

[00:24:02] Speaker 02:
Suppose for a minute that one understood the regent's opinion, the relevant section, to have a bearing on situations other than policy changes.

[00:24:18] Speaker 02:
Just assume that for purposes of this question.

[00:24:21] Speaker 02:
Then do you see any difference between the substance of the Supreme Court opinion's statement of an obligation for an agency to attend to something and what Robinson already requires?

[00:24:43] Speaker 00:
There might be a difference because, again, Robinson really looked specifically to Title 38.

[00:24:50] Speaker 00:
So what Robinson says, right, that the board has to, and the department more broadly, has to look not only to the arguments made by the claimant, but also to all arguments that are apparent from the record.

[00:25:04] Speaker 00:
That goes back to Section 7104, Title 38, as well as the duty to assist in 5103A.

[00:25:12] Speaker 00:
Those are specific provisions within Title 38.

[00:25:17] Speaker 00:
We don't think that those provisions and that particular standard would necessarily apply outside of the veteran disability compensation context.

[00:25:29] Speaker 00:
Let me go ahead.

[00:25:31] Speaker 01:
No, that one really wasn't the question, as I understood it.

[00:25:35] Speaker 01:
The question I understand was whether or not you might take Robinson and go try to apply it someplace else.

[00:25:40] Speaker 01:
The question was whether, in the veteran setting, isn't Robinson basically performing the same function that Regents provides?

[00:25:49] Speaker 00:
You can certainly say that.

[00:25:51] Speaker 00:
I hesitate to agree with that fully, because again, come from different contexts.

[00:25:57] Speaker 00:
They look at different statutes.

[00:25:59] Speaker 00:
But you can certainly say that they're consistent with each other.

[00:26:03] Speaker 02:
Maybe the following is clarifying.

[00:26:05] Speaker 02:
I'm not sure.

[00:26:05] Speaker 02:
So I understand that the government doesn't want, to the extent Robinson demands more than the APA, doesn't want us to be saying that Robinson demand for sort of Suez Monte agency activity

[00:26:18] Speaker 02:
is in a carryover to non-Title 38 situations.

[00:26:25] Speaker 02:
The question we have here in a way is does the Supreme Court statement of some obligation under the APA, is that possibly more demanding

[00:26:41] Speaker 02:
of then Robinson is in the Title 38 context.

[00:26:46] Speaker 02:
So that if we were inclined to say, yes, we understand the APA is not directly applicable, but in interpreting Title 38, we often look to APA principles.

[00:26:58] Speaker 02:
You think that the statement in Regents about an APA principle, if taken outside the change of policy context, demands any more than Robinson already demands in the Title 38 context?

[00:27:15] Speaker 00:
We don't think so, Your Honor.

[00:27:17] Speaker 00:
There is a long discussion, even in the Regents case itself, talking about how agencies are not obligated

[00:27:24] Speaker 00:
to address all conceivable arguments that could happen.

[00:27:27] Speaker 02:
But there's a distance between all conceivable and that's not an either or thing.

[00:27:34] Speaker 02:
Maybe the standard of evident from the record is, this is I guess the question, is evident from the record possibly under demanding if you think of the APA principle from Regents?

[00:27:57] Speaker 00:
So Evident From the Record, and again, I know that I've said it before and it may not be entirely responsive to the question.

[00:28:05] Speaker 00:
I've repeated myself too, so feel free.

[00:28:05] Speaker 00:
Evident From the Record is a standard that comes from Title 38.

[00:28:09] Speaker 00:
So it is a unique standard announced in Robinson that is specific to the Veterans Disability Compensation System.

[00:28:17] Speaker 00:
We think comparing that to regions, it's sort of like comparing apples to oranges, because they talk about different statutory schemes.

[00:28:26] Speaker 00:
Again, I suppose in many ways they're sort of consistent with each other.

[00:28:30] Speaker 00:
I'm not sure if this same situation arose in another agency and another court had to look at it under the APA standard.

[00:28:37] Speaker 02:
They're consistent, at least in part, because the Title 38, what's it, 7261 or something, the judicial review standard includes the phrase, arbitrary and capricious.

[00:28:48] Speaker 00:
It does, but it also includes other standards that are not in the APA.

[00:28:51] Speaker 00:
For instance, the clearly erroneous standard.

[00:28:53] Speaker 02:
Right, but if arbitrary and capricious as a phrase,

[00:28:55] Speaker 02:
demands what Regence says it demands, then absent anything else, it ought to demand the same thing in Title 38.

[00:29:04] Speaker 00:
Yes, that's accurate.

[00:29:06] Speaker 00:
And that's essentially what this court said in Eusebio just recently.

[00:29:11] Speaker 00:
But again, I do want to emphasize again, and I know we're working under the assumption that Regence would apply, but I think it is important to remember the context in which Regence arose.

[00:29:21] Speaker 00:
Regence is a case in which an agency changed circumstances.

[00:29:25] Speaker 00:
And that is why the Supreme Court says it has to look to things outside of the record, specifically reliance interests that were created by the initial policy.

[00:29:36] Speaker 01:
That isn't the case here.

[00:29:37] Speaker 01:
Why shouldn't we understand the test in Regents to be evident from the record?

[00:29:44] Speaker 01:
I mean, the problems that the Supreme Court identified in Regents that were left unattended were evident from the record.

[00:29:51] Speaker 00:
You could, but the phrase evident from the record was not being discussed.

[00:29:55] Speaker 00:
No, no, I understand that.

[00:29:56] Speaker 01:
But I mean, if we're trying to decide whether you have apples and pears or two different kinds of very closely related apples, and both taste the same and look the same, but not exactly the same, why isn't it safe for our purposes in this court when we're really not responsible for interpreting

[00:30:17] Speaker 01:
Regents for all other agencies and all the purposes.

[00:30:20] Speaker 01:
It's the same to me.

[00:30:21] Speaker 01:
And in regents, the problems the Supreme Court had were evident from the record.

[00:30:25] Speaker 01:
And my goodness, you can't not decide those two issues.

[00:30:29] Speaker 01:
So they sent it back.

[00:30:31] Speaker 00:
Well, I certainly disagree.

[00:30:33] Speaker 00:
I certainly do not disagree that evident from the record is the appropriate standard.

[00:30:38] Speaker 00:
And if something is evident from the record, the Department of Veterans Affairs, including the board, does have a responsibility to consider it.

[00:30:44] Speaker 00:
Robinson made that clear.

[00:30:46] Speaker 00:
If we start talking about what is and is not evident from the record in this case, then we're getting into factual issues over which the score is not interesting.

[00:30:54] Speaker 00:
Right.

[00:30:54] Speaker 01:
Looking forward, when other courts have to deal with the question of what Regents means for run-of-the-mill APA cases, like when the Army Corps of Engineers makes some determinations about whether the egress is being displaced by a road that's coming by.

[00:31:10] Speaker 01:
And there was a couple of issues that were evident on the record and the Army Corps didn't decide.

[00:31:16] Speaker 01:
I mean, what sort of articulation is the government going to advance for how do you apply regents in other cases, knowing that all conceivable arguments isn't something that the agency had to address?

[00:31:30] Speaker 00:
I think we would stress the limitation that comes out of regents.

[00:31:38] Speaker 01:
If you lose in a future case, when you try to say, well, regents only applies to change in policy cases,

[00:31:45] Speaker 01:
then you say, well, how do you articulate the standard for what it is the agency has to look at?

[00:31:50] Speaker 01:
How do you come up with a rule?

[00:31:53] Speaker 01:
Congress came up with a rule for the VA saying, evident from the record, why wouldn't you advance that interpretation of regents in future cases?

[00:32:03] Speaker 00:
And I'm sorry, Judge Clevercher, you mean in future cases not involving the VA?

[00:32:07] Speaker 00:
Oh, sure.

[00:32:08] Speaker 01:
Yes, exactly.

[00:32:10] Speaker 00:
Those cases would depend entirely on the language of the APA, as well as the organic statutes relating to the particular agency in those cases.

[00:32:18] Speaker 02:
Presumably, you would fall back on important aspects of the problem.

[00:32:23] Speaker 00:
That is one of the standards that the Supreme Court has identified.

[00:32:27] Speaker 00:
But Your Honor, we also cited a case from the Ninth Circuit, the Oregon Resource Defense Council versus Thomas case.

[00:32:36] Speaker 00:
And I think the court there, and I think it's Judge Kaczynski,

[00:32:39] Speaker 00:
does a really good job explaining what the APA does and does not require.

[00:32:45] Speaker 00:
And it's the idea that when you come to a chord and you say something is arbitrary and capricious,

[00:32:51] Speaker 00:
You need a hook you need some other either Statute or regulation or policy or guidance something else that the agency had violated to make it arbitrary and capricious Arbitrary and capricious does not itself set the substantive standard.

[00:33:07] Speaker 00:
It's merely a way of analyzing agency action you still need to ground it in something and so

[00:33:14] Speaker 00:
Judge Clevinger, to your question, in a subsequent case, in an APA context coming from another agency, that would entirely depend on that hook.

[00:33:24] Speaker 00:
I think we would have to look at the APA, look at the agency's organic statute, figure out if there is something arbitrary and capricious there.

[00:33:32] Speaker 00:
If there is a change in policy, then we would really look to regents because I don't think it really applies outside of that.

[00:33:39] Speaker 00:
circumstance and again the specific part of regions that has been raised by Mrs. Gay.

[00:33:47] Speaker 00:
But we still would look to the organic statute and that's sort of what we're doing here because we have to go back to Title 38 and Title 38 fully supports the standard that was adopted in Robinson and we think that's the standard that should continue to apply.

[00:34:05] Speaker 02:
Thank you for your argument.

[00:34:07] Speaker 00:
Thank you.

[00:34:17] Speaker 02:
You'll have four minutes if you need it.

[00:34:19] Speaker 03:
Thank you, Your Honor.

[00:34:21] Speaker 03:
I'll be brief.

[00:34:24] Speaker 03:
My argument has been for this appeal that the error was made not in the memorandum opinion of the court, but in its failure to grant my motion to reconsider because of the new

[00:34:47] Speaker 03:
precedent from the Supreme court in the Regents case.

[00:34:51] Speaker 03:
And I talked about the facts of the case only to lay out what was there because we're talking about, is there a clean slate or a dirty slate?

[00:35:04] Speaker 03:
So all I was showing was that if there's something on the slate based on Chief Justice Roberts writing for, I think it's a plurality in Regents.

[00:35:16] Speaker 03:
What he says is, if they're not writing on a blank slate, then they have a duty.

[00:35:25] Speaker 03:
So if they're not writing on a blank slate, there's a duty to look at the record.

[00:35:34] Speaker 03:
So in this case, my argument is, as I've said already,

[00:35:43] Speaker 03:
that using that language, that phrasing written into the opinion of the court broadens the law as it existed at the time of the memorandum opinion.

[00:35:58] Speaker 03:
And the fact that it's broadened, that is why our facts, which show the dirty slate, indicate that we're entitled to a remand so that we can then have a decision

[00:36:13] Speaker 03:
based on this new law being considered.

[00:36:17] Speaker 03:
And the reason I talked about the cataral fever is because, as everything in the record shows, this is an antiquated term.

[00:36:25] Speaker 03:
It's a term that's not used every day.

[00:36:27] Speaker 03:
And it's not mentioned anywhere except in the treatment records.

[00:36:31] Speaker 03:
So the fact that it's not mentioned in the other medical opinions indicates maybe it wasn't considered.

[00:36:41] Speaker 03:
In a nutshell, that's our argument.

[00:36:43] Speaker 03:
If it doesn't move the goal posts, then we lose.

[00:36:49] Speaker 03:
If it did move the goal posts, then we're entitled to a remand.

[00:36:54] Speaker 03:
Just in light of the fact that the law had changed if it moved the goal posts.

[00:36:57] Speaker 03:
And I don't think anybody said that yet.

[00:37:02] Speaker 03:
And I'm ready to conclude.

[00:37:03] Speaker 02:
OK.

[00:37:03] Speaker 02:
Thank you so much.