[00:00:12] Speaker 02: Our next case is Clark McCartney versus the Secretary of Veterans Affairs. [00:00:18] Speaker 02: 2021, 1007. [00:00:20] Speaker 02: Ms. [00:00:22] Speaker 02: Chantille, is it? [00:00:57] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:01:01] Speaker 00: VA called for a medical opinion by a specialist in radiation illnesses. [00:01:05] Speaker 00: What it got was an opinion by an unspecialized nurse who name-dropped a cardiologist. [00:01:11] Speaker 02: And the Veterans Court held us too late to argue that VA needs to- Well, you say name-drop, but the name of a cardiologist was on the document. [00:01:19] Speaker 00: Yes, Your Honor, the name of the cardiologist was on the document. [00:01:22] Speaker 00: with no other context. [00:01:23] Speaker 00: It is signed by a nurse and the author is listed as a nurse. [00:01:29] Speaker 00: Veterans like Mr. McCartney have never been required to bring substantial compliance challenges before the board. [00:01:34] Speaker 00: That's because it's always been the board's duty and not the veteran's to ensure substantial compliance. [00:01:40] Speaker 00: And that's an affirmative duty. [00:01:42] Speaker 00: The presumption of competence does not excuse the board from ensuring compliance. [00:01:46] Speaker 00: That's because a competent examiner won't always satisfy a board's remand order. [00:01:50] Speaker 00: There are two different questions. [00:01:52] Speaker 00: The first question is whether this person is competent. [00:01:55] Speaker 00: We'll presume that, and we haven't challenged it. [00:01:58] Speaker 00: But the second question, did the AOJ follow the board's instructions? [00:02:03] Speaker 00: That's a question the presumption of competence can't answer. [00:02:06] Speaker 00: That's a substantial compliance inquiry, and there's no presumption of compliance. [00:02:10] Speaker 00: It's the board's affirmative duty to ensure it. [00:02:14] Speaker 00: And Matthews tells us that it's a substantial compliance issue when the board renegs on its remand orders, when the board fails to perform its affirmative duty. [00:02:24] Speaker 00: This is not a dispute about whether the nurse or the cardiologist provided a competent opinion. [00:02:29] Speaker 00: And it's not a factual dispute about whether they might be close enough to the board's remand orders. [00:02:34] Speaker 00: The Veterans Court ended that line of questioning when it held, it doesn't matter who wrote Mr. McCartney's opinion. [00:02:39] Speaker 00: And we don't know. [00:02:40] Speaker 00: This is a legal question for the court. [00:02:43] Speaker 00: Does the board have a duty to ensure VA complies with its remand orders for a specialist? [00:02:49] Speaker 00: Stigall's made this clear for years, of course. [00:02:51] Speaker 00: It's basically canon. [00:02:53] Speaker 00: Yes, it does. [00:02:54] Speaker 00: But the Veterans Court says it doesn't here. [00:02:56] Speaker 00: The Veterans Court says Frankway controls here. [00:02:59] Speaker 00: And Mr. McCartney's lost his Stigall rights. [00:03:02] Speaker 00: But Frankway isn't about substantial compliance at all. [00:03:05] Speaker 00: Frankway is about the requirements for challenging competence, not substantial compliance. [00:03:09] Speaker 00: And Frankway is not an exception to Stigall. [00:03:13] Speaker 00: This court should hold that the board has a duty to ensure substantial compliance with its remand orders in all respects, including when it remands for a specialist. [00:03:23] Speaker 03: Could you get to the argument regarding fair process? [00:03:27] Speaker 00: Sure, Your Honor. [00:03:29] Speaker 00: So Mr. McCartney received a 90-day letter. [00:03:32] Speaker 00: And by the time he had received it, the board had already denied his claim. [00:03:38] Speaker 00: His 90-day letter set forth his right [00:03:42] Speaker 03: the beginning of his opportunity to ensure certain rights for himself, including- I thought he got the notice, and then nine days later, he got the final decision. [00:03:55] Speaker 00: Mr. McCartney, the 90-day letter was mailed four business days before the board denied his claim. [00:04:03] Speaker 00: So he received, in practice, Mr. McCartney, who lives in California, received the letter from the board before, [00:04:11] Speaker 00: after the board had already denied his claim. [00:04:13] Speaker 00: So his 90 day, his period to exercise his rights. [00:04:16] Speaker 03: So how do we distinguish Bryant in this case? [00:04:21] Speaker 00: Bryant, your honor, raises the issue of fair process for Mr. McCartney. [00:04:28] Speaker 00: Bryant reminds us that Mr. McCartney, like Mrs. Bryant, had a right to exercise [00:04:40] Speaker 00: these rights, including a hearing or asking for a hearing, new representation, submitting additional evidence, and whatnot. [00:04:53] Speaker 00: Now, interestingly, when Miss Bryant requested her period of time in order to exercise her rights, did that specifically [00:05:05] Speaker 00: during the 90-day period. [00:05:07] Speaker 00: She wanted, on purpose, to exercise those rights during the 90-day period because there is a substantial difference between exercising those rights before the 90-day period, before a case has been submitted to the board. [00:05:20] Speaker 00: Because in that case, all of those rights happen at the AOJ level. [00:05:23] Speaker 00: It's a different kind of hearing. [00:05:24] Speaker 00: The evidence is treated differently. [00:05:26] Speaker 00: It probably would perpetuate the SSOC hamster wheel. [00:05:30] Speaker 00: Whereas once the 90-day letter is received by the claimant, [00:05:35] Speaker 00: That is the beginning of the period of time to exercise those rights. [00:05:38] Speaker 02: 1304 doesn't apply to the situation, does it? [00:05:42] Speaker 02: At least according to the Williams case, which thoroughly deals with it. [00:05:48] Speaker 00: The Williams case, Your Honor, the Veterans Court instructed us in Williams that 1304A does not apply in this case. [00:05:56] Speaker 00: This court did affirm that in a non-presidential Rule 36 opinion. [00:06:02] Speaker 00: We have argued that we do believe that Williams was wrongly decided. [00:06:06] Speaker 00: But even taking Williams into account that 1304A doesn't apply, Mr. McCartney still had the rights, and we know this under Quinn and their statutory, 7107B, right to a hearing before the board, right to even a second hearing before the board, even if his first hearing was before the board already, and it wasn't. [00:06:27] Speaker 00: We know from that that when [00:06:30] Speaker 00: Regardless of whether 1304A applies, the statutes do, and his statutory rights certainly do. [00:06:36] Speaker 00: And he was given the reasonable expectation by the words of the 90-day letter he received that he can exercise those rights and begin exercising them at the time that he received the 90-day letter. [00:06:47] Speaker 00: What he didn't know was that the board had already denied his claim and foreclosed his ability to exercise those statutory rights. [00:06:54] Speaker 00: That's why it's a fair process violation, Your Honor. [00:06:57] Speaker 02: You devoted most of your time [00:06:58] Speaker 02: argument to 1304, which you now admit doesn't apply. [00:07:05] Speaker 00: We don't admit that doesn't apply, Your Honor. [00:07:08] Speaker 00: We do believe that Williams was wrongly decided. [00:07:10] Speaker 02: You're saying it should apply. [00:07:13] Speaker 00: We do believe it should apply, yes, Your Honor. [00:07:15] Speaker 00: But regardless of that issue and regardless of the Veterans Court's holding in Williams, Mr. McCartney had his fair process rights violated as well. [00:07:27] Speaker 00: In Mr. Williams' case, he had 42 days to exercise his rights. [00:07:32] Speaker 00: Mr. McCartney had zero days. [00:07:34] Speaker 00: I think it was 42 days. [00:07:38] Speaker 00: Maybe don't hold me to that exactly. [00:07:39] Speaker 00: But Mr. McCartney had absolutely no opportunity to exercise those rights. [00:07:43] Speaker 03: Can you show us anywhere in the record that supports that statement you just made? [00:07:50] Speaker 00: I'm sorry, Your Honor. [00:07:50] Speaker 00: I'm having a terrible time hearing. [00:07:52] Speaker 03: Can you point us anywhere in the record that supports your argument? [00:07:55] Speaker 00: I argued that in my reply brief, Your Honor. [00:07:59] Speaker 00: So that was, I went through an explanation, the US Postal Service normal delivery times and whatnot, so that by the time Mr. McCartney had received his 90-day letter, he couldn't even have responded to it in time for the board to get his response in before the board had denied his claim. [00:08:22] Speaker 00: If Your Honors have no addition, oh, I'm sorry. [00:08:24] Speaker 02: We will save your rebuttal time. [00:08:28] Speaker 00: Thank you, Your Honor. [00:08:32] Speaker 02: Ms. [00:08:32] Speaker 02: Koenig, is it? [00:08:35] Speaker 02: Koenig. [00:08:41] Speaker 02: Koenig. [00:08:41] Speaker 02: We'll follow your lead. [00:08:46] Speaker 02: We'll put an omelette over it. [00:08:53] Speaker 01: Good morning, Your Honors, and may it please the court. [00:09:00] Speaker 01: First, the appellant here argues that France way is not about substantial compliance, and we strenuously disagree with that characterization. [00:09:10] Speaker 01: The veteran's court decision at page six indicates that the veteran raised a substantial compliance issue, essentially making the same argument that the appellant makes here, [00:09:23] Speaker 01: that the remand had asked for an appropriate medical specialist and that Mr. Fransway did not, in fact, receive an opinion from an appropriate medical specialist. [00:09:32] Speaker 01: The Veterans Court, in considering that substantial compliance, still held that Mr. Fransway had an obligation under the presumption of competence to raise the issue before the board. [00:09:45] Speaker 01: And although the Veterans Court decision, or I'm sorry, this court's decision did not specifically address substantial compliance, the Veterans Court [00:09:52] Speaker 01: decision certainly did. [00:09:54] Speaker 01: And in both decisions, the court and the Veterans Court found that there is still an obligation for the veteran to raise this issue, for the veteran to request information regarding the qualifications of the VA examiner. [00:10:11] Speaker 04: Can I just see if I understand your point here is that while it may not be universally true that substantial compliance with a remand order is subject to [00:10:28] Speaker 04: the Frank Way timing of assertion rule. [00:10:33] Speaker 04: In this case, they amount to the same thing because the order with which compliance is at issue is in order about relevant competence. [00:10:47] Speaker 01: That is correct, Your Honor, because the claim that is being made in this case is that the qualifications of the VA examiner, [00:10:57] Speaker 01: the person who was chosen by the VA to give the medical opinion was not sufficient or not in compliance with the remand order, it's still, the claim is about the qualifications of the VA examiner. [00:11:09] Speaker 01: And this court in Frankway explicitly held that even in the context of a remand, even in the context of a remand order for an appropriate medical specialist, that that obligation on the veteran to challenge the qualifications before the board still applies. [00:11:27] Speaker 01: And this court's decision is consistent with the decision in Parks and the decision in Sickles and the other cases in which we cited in our brief that have similarly held that there is an obligation on the veteran to raise the issue before the board, to at least request the information of the qualifications of the exam. [00:11:48] Speaker 04: But Frank Way, to some extent, was an effort to put Parks and Sickle behind us [00:11:57] Speaker 04: because there was some question of whether those decisions had gone too far. [00:12:02] Speaker 01: Yes, Your Honor. [00:12:04] Speaker 01: It is certainly more recent than of those other decisions. [00:12:07] Speaker 04: Is there even an en banc footnote in it? [00:12:10] Speaker 01: There is, Your Honor. [00:12:11] Speaker 01: The en banc footnote says that this should be considered a requirement rather than a presumption of competence. [00:12:19] Speaker 01: But there is still a requirement on the veteran to raise the issue in the first instance before the board. [00:12:27] Speaker 03: And that's to prevent surprise, bringing up the argument later. [00:12:34] Speaker 03: In this situation, the only issue that they were concerned with was the competency issue. [00:12:42] Speaker 03: And are you saying that by not giving an opportunity to respond to that, that the VA was somehow surprised? [00:12:55] Speaker 01: Well, Your Honor, I [00:12:57] Speaker 01: The veteran certainly had an opportunity to respond to the competency issue, or at least to request information regarding the competency issue. [00:13:06] Speaker 03: There's a lot of... Well, the veteran here was giving notice that said you have X amount of days in which to raise the issue, but apparently the decision had already been made at that point. [00:13:18] Speaker 01: Well, Your Honor, I would argue that that letter is not the critical [00:13:26] Speaker 01: time period in which the veteran had to discuss this issue. [00:13:29] Speaker 01: The veteran received a supplemental statement of the case in March. [00:13:34] Speaker 03: The letter was in error, right? [00:13:36] Speaker 01: It was a mistake. [00:13:38] Speaker 01: The letter errantly is cited to 2013-04, yes. [00:13:42] Speaker 01: But the letter was simply a notice that the case had resumed its place on the board's docket. [00:13:48] Speaker 01: But the veteran received a supplemental statement of the case in March of 2018, five months before the board decision. [00:13:55] Speaker 01: And the regulations that do apply on remand 1931, 1938, and 2302, those regulations all are dealing with the supplemental statement of the case. [00:14:07] Speaker 01: That is the critical portion of this process on remand. [00:14:12] Speaker 01: The veteran received the supplemental statement of the case. [00:14:15] Speaker 01: It referenced the medical opinion and summarized the medical opinion. [00:14:20] Speaker 01: And Mr. McCartney could have, at that point, [00:14:25] Speaker 01: requested information relating to the qualifications of the examiner. [00:14:29] Speaker 04: And if there had indeed been a problem, it could have been corrected at that level. [00:14:37] Speaker 01: Yes, Your Honor. [00:14:37] Speaker 01: Or at least the issue would have been properly raised at that time. [00:14:42] Speaker 04: Could it have been corrected? [00:14:43] Speaker 04: I mean, you really do have to say something could be done. [00:14:48] Speaker 04: Otherwise, there is absolutely no point [00:14:51] Speaker 01: Yes, Your Honor. [00:14:52] Speaker 01: The veteran, by regulation, is given 30 days following the supplemental statement of the case to request additional information or provide additional information that could potentially change the outcome of the case, yes. [00:15:03] Speaker 01: And Mr. McCartney did, in fact, provide additional information during that 30-day period that he received. [00:15:11] Speaker 04: An evidentiary submission, but not a new argument, not new comments. [00:15:15] Speaker 04: Am I remembering that right? [00:15:17] Speaker 01: He provided additional information, but did not [00:15:20] Speaker 01: the information provided did not relate to the qualifications of the examiner. [00:15:24] Speaker 01: He did not challenge the qualifications of the examiner at that time, nor did he simply request [00:15:30] Speaker 01: information relating to the qualifications of the examiner at that time. [00:15:33] Speaker 04: Can I turn you to this fair process piece of it, not the frank way, substantial compliance piece, but the fair process. [00:15:42] Speaker 04: Is there a statutory right to an opportunity to submit evidence at the board level in the return circumstance presented here? [00:15:56] Speaker 01: Your Honor, I am not aware of any statutory [00:16:00] Speaker 04: Any statutory right that would grant a veteran an opportunity or specific any specific time period with which to Provided let's assume for a moment that in fact in this case before he even received The notice that the matter was back before the board the board issued his decision Does would that violate some statutory right? [00:16:30] Speaker 01: No, Your Honor, it would not. [00:16:32] Speaker 01: Because the statutes and regulations dealing with a case on remand. [00:16:38] Speaker 04: Forget about the regulations. [00:16:39] Speaker 01: But when you're dealing with a case on remand, a different set of rules applies. [00:16:46] Speaker 01: And those all focus on the supplemental statement of the case rather than once the case has gotten to the board. [00:16:56] Speaker 04: Right, but I think Ms. [00:16:56] Speaker 04: Gentile, [00:16:59] Speaker 04: emphasized the statutory. [00:17:01] Speaker 04: I forget whether she mentioned 7105 or 7107 or what? [00:17:07] Speaker 01: Your Honor, in the appellant's brief, they cite to a number of statutes, including 7105, 7107, and 59, 101 to 104, I believe. [00:17:18] Speaker 01: None of those statutes provides a right to have 90 days to submit evidence on remand. [00:17:28] Speaker 04: Forget about the 90 days. [00:17:30] Speaker 04: Do they supply a right to make a comment to or supply evidence to the board when a matter is returned to the board after a remand? [00:17:47] Speaker 01: Your Honor, my reading of the statutes is that none of them apply to cases on remand, and none of them provide the rights that Mr. McCartney has claimed in this case. [00:17:57] Speaker 01: 5901 to 5904 all discuss representation issues and the right to request changes in representation and recognition of representation and things of that nature. [00:18:09] Speaker 01: 7107 addresses the right to a hearing and says that the board shall decide any appeal only after affording the appellant an opportunity for a hearing. [00:18:23] Speaker 01: 7105. [00:18:28] Speaker 01: It does talk about providing evidence, but I believe does not address cases on remand either. [00:18:44] Speaker 01: So our opinion would be that none of the statutes that the appellant has cited in this case provide the appellant with the rights that it's claiming in this case. [00:18:55] Speaker 01: The right to fair process, as the Veterans Court decision in Williams discussed, is a right to participate in the process. [00:19:08] Speaker 01: And on remand, the focus is on the supplemental statement of the case and the 30 days following the supplemental statement of the case, which provide the veteran [00:19:20] Speaker 01: a time period of 30 days in which to submit additional evidence or request additional information or make any additional arguments. [00:19:27] Speaker 02: If your opponent disagrees with you, I'm sure on rebuttal she will give us chapter and verse. [00:19:34] Speaker 01: I can only assume. [00:19:39] Speaker 01: So we believe that the Veterans Court decision, which this court affirmed, resolves the issue of the, quote unquote, 90-day rights, which Mr. McCartney is claiming. [00:19:51] Speaker 01: If your honors have any further questions, I'm happy to answer. [00:19:54] Speaker 03: Yeah, I have a question. [00:19:55] Speaker 03: Now, you argue that Bryant versus Wilkie doesn't apply in this case, because in that case, 1304 did apply. [00:20:05] Speaker 03: And in this case, it does not. [00:20:07] Speaker 03: But in Bryant, the court also went on and spoke about and says that we conclude that the board's actions in this case deprived him of his non-constitutional right to a fair process. [00:20:24] Speaker 03: So just in terms of a fair process, is Bryant distinguishable from this case? [00:20:30] Speaker 01: Your Honor, yes, I believe that Bryant is distinguishable as a factual matter because in Bryant, the appellant had indicated a desire to make additional arguments. [00:20:44] Speaker 01: And in this case, there is nothing. [00:20:46] Speaker 03: But isn't that forcing a veteran to decide early? [00:20:50] Speaker 03: what they're going to do without even knowing whether they should do that or not. [00:20:55] Speaker 03: I mean, how can you say, I'm going to raise an appeal, and I'm going to argue these three different points, and you don't even know what the ultimate decision of the board is? [00:21:10] Speaker 03: So is that are we putting too big of a burden on the veterans to decide early in the ballgame what they're going to do and to notify the VA? [00:21:21] Speaker 03: Why shouldn't we wait until they actually have the full opportunity of the time period that they've been notified that they have to make their argument? [00:21:32] Speaker 01: Your Honor, I believe, again, that the relevant time period is actually the time period after the submission of the supplemental statement of the case, which occurred in March of 2018 in this case. [00:21:45] Speaker 01: Whether the board decision came six days or 40 days or 90 days after the notice letter, after the resumption of the place on the docket, the veteran has no more information than they did at the time of the supplemental statement of the case. [00:22:02] Speaker 01: the time period. [00:22:03] Speaker 03: How do you know that? [00:22:06] Speaker 01: Because the supplemental statement of the case is the VA's. [00:22:10] Speaker 03: Maybe they could have Googled the doctor and found out that, wait a minute, there's a problem here. [00:22:16] Speaker 03: This isn't a cardiologist. [00:22:18] Speaker 03: It's a nurse. [00:22:20] Speaker 01: Well, in getting the supplemental statement of the case, the veteran could have requested the medical opinion, or the veteran could have requested the qualifications at that time period. [00:22:31] Speaker 01: And I don't believe that the veteran has argued that they. [00:22:36] Speaker 03: These aren't lawyers. [00:22:38] Speaker 03: These are just everyday people that are veterans. [00:22:44] Speaker 03: Yes, Your Honor. [00:22:46] Speaker 03: And in this case, the veteran was informed that you got X amount of days in which to appeal. [00:22:54] Speaker 03: They get that. [00:22:54] Speaker 03: And on the other hand, a few days later, they get the answer. [00:22:58] Speaker 03: It says the final decision. [00:23:00] Speaker 01: Yes, Your Honor. [00:23:01] Speaker 01: Again, the letter was simply a notice that the case was going back to the board, which was something that the veteran would have been aware of after getting the supplemental statement of the case. [00:23:11] Speaker 01: Maybe not the exact time. [00:23:12] Speaker 03: Did that letter say you have X amount of days in which to gather new information or submit new information? [00:23:20] Speaker 01: Well, Your Honor, no, it does not provide for 90 days. [00:23:24] Speaker 01: The regulation that was errantly cited in the letter still doesn't actually provide for a 90-day period. [00:23:32] Speaker 01: The regulation states that the appellant will be granted a period of 90 days following the mailing of the notice or until the date that the appellant decision is promulgated by the board, whichever comes first. [00:23:46] Speaker 01: So even the regulation itself doesn't provide a strict [00:23:49] Speaker 01: 90-day period in which to provide evidence. [00:23:52] Speaker 01: The regulation itself provides for a maximum time period of 90 days and indicates that it informs the veteran that the decision could come earlier than 90 days. [00:24:05] Speaker 01: And as we've argued, that regulation simply doesn't apply in this case. [00:24:09] Speaker 01: I see that I'm over my time, but if there are any further questions, I'm happy to answer them. [00:24:14] Speaker 02: Thank you, counsel. [00:24:17] Speaker 02: Ms. [00:24:18] Speaker 02: Juneteo has some rebuttal time. [00:24:34] Speaker 00: Thank you, Your Honor. [00:24:38] Speaker 00: I've always thought of substantial compliance and competence as a Venn diagram. [00:24:45] Speaker 00: there are certain instances where maybe these two circles completely overlap. [00:24:50] Speaker 00: This isn't one of them. [00:24:51] Speaker 04: We don't need complete overlap. [00:24:54] Speaker 04: All we need is some overlap. [00:24:56] Speaker 04: Why isn't this case in the overlap area? [00:24:59] Speaker 00: Because of the specificity of the board's remand orders, Your Honor. [00:25:03] Speaker 00: The board called for a particular type of examiner. [00:25:06] Speaker 00: Now, whether that examiner is competent, whoever this person is, the nurse practitioner, the cardiologist, somebody else, whether that person is competent [00:25:14] Speaker 00: to write an exam, which is all 3.159 requires, competent to perform an examination, is a separate question from whether it's a particular type of person that the board told the AOJ to go find. [00:25:26] Speaker 00: And it's also invoking different rights and duties on behalf of the claimant and board. [00:25:31] Speaker 04: But wasn't the remand order be competent in assessing a problem here? [00:25:38] Speaker 04: What's the difference, namely the effect of exposure to radiation on the heart? [00:25:44] Speaker 00: The remand order. [00:25:45] Speaker 04: Why is that different? [00:25:47] Speaker 00: The remand order, well, it's always implicit in a remand order that a competent examiner should be found. [00:25:54] Speaker 00: This remand order also called for a radiologist or another specialist qualified to opine on the effects of radiation on the human body. [00:26:04] Speaker 00: We don't know, and this is also an important fact in Mr. McCartney's case, we don't know who wrote that opinion, which means it is impossible for the board to have insured substantial compliance with its remand orders. [00:26:18] Speaker 00: Ensuring substantial compliance isn't just words on a paper. [00:26:20] Speaker 00: That's an action. [00:26:21] Speaker 00: when we don't know who the board actually got after it called for a really particular type of person, when we don't know who the board actually got. [00:26:29] Speaker 04: Shouldn't you have put that in your response to the supplemental statement of the case? [00:26:36] Speaker 00: No, Your Honor. [00:26:37] Speaker 00: Well, at the time, I will point out factually speaking, Mr. McCartney was unrepresented, which is an important part of this because this is an ex parte system. [00:26:47] Speaker 00: But Mr. McCartney never saw his exam. [00:26:50] Speaker 00: until he had appealed to the court and received his record before the agency. [00:26:55] Speaker 00: That's the first time he ever saw his examination. [00:26:57] Speaker 00: The SSSC, while it referenced an exam, never said who wrote it and never provided a copy of the exam. [00:27:04] Speaker 04: Could he have gotten that by asking? [00:27:08] Speaker 00: If he wanted to or if he tried, it depends on when he made that request. [00:27:17] Speaker 00: VA would have had a duty, generally speaking, to, yes, to turn that exam over to Mr. McCartney. [00:27:25] Speaker 00: Now, that does get into why Mr. McCartney was harmed by his inability to submit anything at all to the board. [00:27:34] Speaker 00: Now, that is a, I do respectfully, to my opposing counsel, I do disagree with her statement that there is no statutory right in play here. [00:27:45] Speaker 00: Quinn makes it very clear that 7107, the right to a hearing before the board. [00:27:48] Speaker 00: That's a statutory right. [00:27:50] Speaker 00: VA cannot abrogate that right, even if a hearing has already taken place once. [00:27:55] Speaker 00: That's very straightforward. [00:27:57] Speaker 00: Now, at that time, during that period of time, which is some period of time after Mr. McCartney received the 90-day letter, he had the right to exercise that right to a hearing. [00:28:11] Speaker 00: Once that became impossible, [00:28:14] Speaker 00: Because the board made its decision so quickly. [00:28:16] Speaker 00: Mr. McCartney's fair process rights and his 7107 right was violated. [00:28:28] Speaker 00: Unless your honors have any additional questions. [00:28:29] Speaker 02: Thank you, counsel. [00:28:32] Speaker 02: No one ever loses points by not using up all of her time. [00:28:37] Speaker 02: We'll take the case under submission. [00:28:38] Speaker 00: Thanks, your honor.