[00:00:04] Speaker 05:
three seven eight.

[00:00:06] Speaker 05:
Veterans Warriors versus the Secretary of Veterans Affairs.

[00:00:11] Speaker 05:
Mr. Lee please proceed.

[00:00:15] Speaker 01:
Good morning and may it please the court.

[00:00:17] Speaker 01:
Timothy Lee on behalf of Petitioners.

[00:00:19] Speaker 01:
Petitioners challenge seven parts of VA's final rule on the caregiver program.

[00:00:24] Speaker 01:
I understand that there is a pending motion on standing but in my limited time I will focus on three of seven challenges because petitioners are confident on standing.

[00:00:32] Speaker 02:
Could we discuss a couple of these standing issues?

[00:00:38] Speaker 02:
Setting aside in person each time the supervision, instruction, protection definition.

[00:00:47] Speaker 02:
What about the 70% disability rating for a serious injury?

[00:00:53] Speaker 01:
Yes, Your Honor.

[00:00:55] Speaker 01:
Petitioners have standing for the 70% service connection requirement because Timothy Chilson has a 60% disability rating, and he requires assistance with multiple ADLs, and he also requires assistance with supervision or protection because he has a seizure disorder.

[00:01:11] Speaker 01:
He plans to file a new application within a few months of any successful PW challenge to the rule.

[00:01:17] Speaker 02:
Okay.

[00:01:18] Speaker 02:
Your supplemental declaration seemed to be trying to map on to the old regulation version of the definition for serious injury.

[00:01:28] Speaker 02:
And I was trying to understand, do you think that you need to establish that Mr. Chilson could satisfy the old version of the serious injury regulation?

[00:01:40] Speaker 02:
Or is your position simply that

[00:01:43] Speaker 02:
Today's rule requires a 70% disability rating, and Mr. Chilson just has a 60% rating.

[00:01:50] Speaker 02:
But for this new regulation 70% requirement, Mr. Chilson would qualify under the new rule.

[00:01:58] Speaker 01:
Correct.

[00:01:59] Speaker 01:
The latter, Your Honor.

[00:02:00] Speaker 01:
The final rule is currently in effect.

[00:02:02] Speaker 01:
If Mr. Chilson files an application, he won't be evaluated under the old rule.

[00:02:06] Speaker 01:
He will only be evaluated under the new rule.

[00:02:09] Speaker 01:
And so he has standing.

[00:02:10] Speaker 02:
What about the in-state requirement?

[00:02:13] Speaker 02:
The other side says, well, you aren't harmed.

[00:02:17] Speaker 02:
Mr. Rie is not harmed by the in-state regulation because he was already denied these benefits to enter this program under the prior version of this rule.

[00:02:36] Speaker 01:
We disagree, Your Honor.

[00:02:38] Speaker 01:
The same analysis applies.

[00:02:39] Speaker 01:
If Mr. Ray applies under the 2021 rule, which he actually did apply, he's rejected based on the final rule.

[00:02:46] Speaker 01:
And so if he applies again or if he applied into 2021, he's not evaluated under the old rule.

[00:02:52] Speaker 01:
The old rule is irrelevant to the analysis because he is standing under the new rule.

[00:02:56] Speaker 01:
And there's no bar on reapplication.

[00:02:58] Speaker 01:
There's no claim preclusion aid.

[00:03:00] Speaker 01:
a veteran could apply again in the future and there's no dispute that he would be evaluated under the new rule and not the old rule.

[00:03:08] Speaker 05:
So it's good enough according to your view of standing if he would have standing to apply but for the problematic terms.

[00:03:19] Speaker 05:
It's irrelevant whether he necessarily would have qualified for benefits under the old rule because it's no longer in effect.

[00:03:25] Speaker 01:
Correct your honor.

[00:03:29] Speaker 01:
Unless the court has further questions on standing, I will go to the merits.

[00:03:33] Speaker 05:
I will say I'm having trouble finding any declaration that supports the three of seven.

[00:03:38] Speaker 05:
If once you get to the very end, which is your seventh one, is there a declaration that points to that and someone who would be particularly

[00:03:47] Speaker 05:
impacted by three of seven daily life activities?

[00:03:52] Speaker 01:
Yes, Your Honor.

[00:03:52] Speaker 01:
Jason Wright has standing to challenge the unable to self-sustain requirement.

[00:03:56] Speaker 01:
That one is actually, there's two ways to qualify under unable to self-sustain.

[00:04:01] Speaker 01:
One is the three of seven ADLs and the other is a continuous need for supervision.

[00:04:06] Speaker 05:
He's in the continuous category, that's three of seven.

[00:04:09] Speaker 05:
So how do I address whether the three of seven is right or wrong since you don't have a

[00:04:14] Speaker 05:
person who would be impacted by that particular portion.

[00:04:18] Speaker 01:
Well, BW disagrees that we do have several veterans who are affected by more than three ATLs.

[00:04:28] Speaker 05:
I don't have any declarations in this case to that extent.

[00:04:32] Speaker 01:
Yes, Your Honor.

[00:04:33] Speaker 01:
We have a declaration from Todd Cervello.

[00:04:39] Speaker 01:
He, one moment.

[00:04:51] Speaker 01:
Yes, Todd Cervello, he has 100% disability rating due to PTSD and TBI, and he requires assistance for all of his ADLs.

[00:05:00] Speaker 01:
And VA has also indicated that Todd Cervello reapplied under the 2021 regulation, and it was denied.

[00:05:06] Speaker 02:
But he satisfies the three or more ADL provision, because he's, in his declaration, identified

[00:05:16] Speaker 02:
I don't know, four or five different ADLs that he needs help with.

[00:05:20] Speaker 02:
Correct, Your Honor.

[00:05:21] Speaker 02:
So he's not being harmed by a requirement that you have to have three or more ADLs, because in fact he satisfies that.

[00:05:30] Speaker 01:
Well, it's the VW's position that he satisfies the requirements and he should qualify for the program, but the VA, however, has denied his application.

[00:05:40] Speaker 01:
if he's not eligible for benefits, then he has standing.

[00:05:44] Speaker 01:
And so the issue with standing is not that.

[00:05:45] Speaker 05:
He doesn't have standing to challenge the three of seven if the three of seven isn't the reason they denied him.

[00:05:53] Speaker 05:
If it has no impact on his personal situation, then he doesn't have standing to challenge that.

[00:05:58] Speaker 01:
Well, actually.

[00:05:59] Speaker 05:
That should be injury in fact.

[00:06:01] Speaker 05:
He doesn't have an injury in fact by virtue of that particular section.

[00:06:05] Speaker 01:
It is a little bit unclear which part of the regulation he was denied under.

[00:06:10] Speaker 01:
And so VA is not particularly clear on the reasons why the veterans are denied.

[00:06:15] Speaker 01:
They might list a laundry list.

[00:06:16] Speaker 05:
Why don't we let you get to the mayor?

[00:06:17] Speaker 05:
He's got a lot to cover.

[00:06:19] Speaker 01:
Yes, Your Honor.

[00:06:20] Speaker 05:
You want to start with in need of personal care services?

[00:06:23] Speaker 01:
Yes.

[00:06:24] Speaker 01:
The first challenge to VA's final rule is that

[00:06:28] Speaker 01:
The final rule challenge redefines the statutory requirements that have been in need of personal care services.

[00:06:34] Speaker 01:
The statutory text expressly defines in need of personal care services at 38 USC section 1720 G A to C.

[00:06:43] Speaker 01:
because it states that a veteran is in need of personal care services because of an inability to perform ADLs, a need for supervision or protection, or a need for regular or extensive instruction, or such other matters as the secretary considers appropriate.

[00:07:01] Speaker 01:
But the final rule states that for a veteran to be in need of personal care services, that veteran must require in-person services.

[00:07:09] Speaker 01:
This violates the plain text of the statute, which expressly states that a veteran is in need of personal care services because the veteran has a need for such services.

[00:07:19] Speaker 02:
This is the family caregiver program, right?

[00:07:23] Speaker 02:
Correct, Your Honor.

[00:07:23] Speaker 02:
And it seems like the

[00:07:29] Speaker 02:
This is contemplating having a family member in the person's home that can provide daily, consistent caregiving in a way that, and provide that person compensation for that so that that person, I don't know, doesn't need to be outside the home to do a different job.

[00:07:55] Speaker 01:
Correct, Your Honor.

[00:07:55] Speaker 01:
That is one of the intents.

[00:07:57] Speaker 02:
So I guess what I'm trying to understand is, why wouldn't the Family Caregiver Act be understood as having an in-home person providing this care in a face-to-face kind of a way?

[00:08:10] Speaker 01:
Right, Your Honor.

[00:08:11] Speaker 01:
So the statute actually expressly addresses this specific issue.

[00:08:15] Speaker 01:
It defines the term caregiver.

[00:08:19] Speaker 01:
term family caregiver and the term family member and it explicitly provides that a family member does not need to reside with the veteran in order to qualify as a family caregiver but if the caregiver is not a family member then that that caregiver must reside with the veteran so it's really okay and then there's references in here on

[00:08:41] Speaker 02:
making under the statute the stipend amount won't be less than what would be paid by a commercial in-home health care facility paying one of their employees.

[00:08:54] Speaker 02:
And that seems to further bolster the idea that this is an in-home caregiving kind of program.

[00:09:02] Speaker 01:
Yes, so VA confuses the services of a home health care entity with the definition for in-person personal care services.

[00:09:11] Speaker 01:
And so, you know, the services of a home health care aide and a commercial home health care aide may or may not be in-person.

[00:09:20] Speaker 01:
That's not established in the record.

[00:09:23] Speaker 01:
It could also be not in-person.

[00:09:24] Speaker 01:
And in contrast, the statute itself expressly defines personal care services and in need of personal care services.

[00:09:31] Speaker 01:
So the meaning of the statute is clear that in need of personal care services simply means that the veteran needs personal care services and not that a veteran who may need personal care services is disqualified simply because those services may not be in person.

[00:09:48] Speaker 05:
Well, so what I understand the definition at number four

[00:09:53] Speaker 05:
of personal care services to be is it says covered veteran under B means services that provide the veteran the following.

[00:10:03] Speaker 05:
So it's talking about the type of services like assistance with one or more ADL.

[00:10:11] Speaker 05:
Why isn't the word personal itself

[00:10:15] Speaker 05:
Why isn't it totally reasonable for the government to interpret the word personal in the personal care services as as requiring the in-person part?

[00:10:25] Speaker 01:
Well first your honor and under Chevron step one.

[00:10:27] Speaker 01:
We wouldn't go to whether the government's Interpretation is reasonable or not because the statute itself is clear it defines personal care services But it doesn't for the statute to be clear it would have to say that

[00:10:40] Speaker 05:
the services can be provided either in person or not in person.

[00:10:46] Speaker 05:
For the plain language to clearly govern, it would have to be the conclusion that no one reading this statute would otherwise reasonably believe that Congress left that question open, right?

[00:10:59] Speaker 05:
Isn't that the way we look at it for step one?

[00:11:01] Speaker 05:
I just don't see any language that clearly says the services can be performed outside the home, for example, which is what you would like me to do.

[00:11:10] Speaker 01:
Well, actually, yes, Your Honor, there is language in the statute that shows that the services can be provided outside the home.

[00:11:15] Speaker 01:
For example, there is the program for caregiver general support services.

[00:11:20] Speaker 01:
And the statute actually.

[00:11:21] Speaker 05:
Well, no, that talks about the fact that the caregiver can be trained in order to provide personal care services outside the home.

[00:11:29] Speaker 05:
The caregiver's training can occur outside the home.

[00:11:32] Speaker 05:
That doesn't talk at all about whether the things he is trained or she is trained to do would have to occur in a home.

[00:11:40] Speaker 01:
Actually, petitioners disagree on that point, because the program for caregiver general support services also uses the term personal care services in exactly the same way.

[00:11:50] Speaker 05:
Oh, oh, oh, I'm sorry.

[00:11:51] Speaker 05:
You're now talking about the more general and not the family one.

[00:11:55] Speaker 01:
Yes, so there's the family, the program for caregiver, there's a program for comprehensive assistance to family caregivers.

[00:12:03] Speaker 01:
That's part A of the statute.

[00:12:05] Speaker 05:
I thought you were talking about, because I remember there's a portion of this statute

[00:12:08] Speaker 05:
that says the family caregiver can be trained to provide the personal care services remotely or over the internet or whatever.

[00:12:16] Speaker 05:
And I thought that was what you're, that's not what you're talking about.

[00:12:20] Speaker 01:
Yes, separately the VA also provides, the statute also states that the

[00:12:26] Speaker 05:
What are you talking about right now?

[00:12:28] Speaker 05:
What are you talking about right now, which is where you say, show me which section of the statutes I have right here indicates that personal care services can be performed outside the home.

[00:12:39] Speaker 01:
Yes, so that's part B of section 1720G, little letter B. And so in part B, it provides for a program for general caregiver support services.

[00:12:52] Speaker 01:
And it uses the exact same setup as in part A. And it says that the veteran requires personal care services because of an inability to perform one or more ADLs, need for supervision or protection,

[00:13:05] Speaker 02:
And so here, I'm sorry, can you point me to where in the statute?

[00:13:10] Speaker 05:
You're going fast, so we're just trying to catch up with you.

[00:13:12] Speaker 02:
Where in the general care support services subsection are you?

[00:13:17] Speaker 01:
Yes, it's 38 USC section 1720 G B2.

[00:13:25] Speaker 04:
B3A2, right?

[00:13:29] Speaker 04:
Or B2.

[00:13:30] Speaker 01:
B2, yes, your honor.

[00:13:32] Speaker 04:
OK.

[00:13:32] Speaker 01:
And it says, for purposes of this subsection, a covered veteran is any individual who needs personal care services because of an inability to perform one or more activities of daily living, a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury.

[00:13:50] Speaker 01:
And so these first two factors are the same exact factors as in the Part A statute.

[00:13:55] Speaker 01:
And so VA has said that even if a veteran doesn't qualify for the Program for Care

[00:14:03] Speaker 05:
program for the caregiver program the caregiver can still elect to receive benefits under Part B of the statute and the same section so I will tell you I find this to be the most confusing argument in the case so I'm glad you're focusing on it I guess I don't understand how the word personal care services

[00:14:25] Speaker 05:
here in the same statute could have a different meaning than earlier.

[00:14:29] Speaker 05:
Why isn't it reasonable to assume that this B2 provision also requires in-person?

[00:14:37] Speaker 01:
Neither of them require in-person.

[00:14:38] Speaker 05:
I understand that you would like that to be the result.

[00:14:40] Speaker 05:
And I'm agreeing with you that I think everything has to be construed consistently.

[00:14:45] Speaker 05:
Correct, Your Honor.

[00:14:47] Speaker 05:
wouldn't it be perfectly reasonable for the VA to say this one, just like the other one requires in-home support?

[00:14:54] Speaker 01:
Yes, Your Honor.

[00:14:55] Speaker 01:
If I may, I can point you to section 1720 G, B1, and it says that

[00:15:01] Speaker 01:
the program for a caregiver support services includes caregivers who do not reside with the veteran.

[00:15:06] Speaker 01:
And so that supports that.

[00:15:08] Speaker 05:
Yes, but the caregiver doesn't reside with the veteran.

[00:15:10] Speaker 05:
That doesn't mean they don't come to the house.

[00:15:11] Speaker 05:
I mean, haven't you ever had an elderly family member that has nursing services come to the home to provide support and that kind of thing?

[00:15:18] Speaker 05:
In fact, that person doesn't live with them.

[00:15:20] Speaker 05:
doesn't preclude them from getting support.

[00:15:22] Speaker 01:
Correct.

[00:15:22] Speaker 01:
It suggests that the caregiver does not need to be present in the home.

[00:15:27] Speaker 05:
No, it doesn't suggest that at all.

[00:15:28] Speaker 05:
It just suggests they don't have to live with them.

[00:15:30] Speaker 05:
Where exactly does it suggest the caregiver doesn't have to be present to provide the care services?

[00:15:38] Speaker 01:
You're correct, Your Honor.

[00:15:40] Speaker 01:
It doesn't say those exact words.

[00:15:42] Speaker 01:
But the statute here also uses the word in person.

[00:15:47] Speaker 05:
But only when it's talking about educational services.

[00:15:51] Speaker 01:
Exactly.

[00:15:52] Speaker 01:
So Congress knew how to use the word in person when Congress meant to.

[00:15:56] Speaker 01:
And Congress expressly provided that VA should provide in-person training to the caregivers.

[00:16:02] Speaker 01:
But Congress did not require that the personal care services be provided in person

[00:16:07] Speaker 02:
But you know, what's good for the goose is good for the gander, in the same way that there's nothing in the statute that says, well, clearly the Congress understood how to refer to remote-based things.

[00:16:25] Speaker 02:
And nowhere in this statute does it suggest that the personal care services provided to a veteran can be somehow done remotely.

[00:16:37] Speaker 01:
It doesn't say one way or the other about whether that's allowed.

[00:16:46] Speaker 02:
Do you have another rule you want to focus on?

[00:16:49] Speaker 01:
Yes.

[00:16:52] Speaker 01:
Just finishing up on the in-person

[00:16:56] Speaker 01:
challenge, we believe under step one that the pro-veteran candidate should also be considered at all the tools of statutory construction should be considered before finding that the statute is truly ambiguous.

[00:17:09] Speaker 02:
Did you argue that in your brief?

[00:17:12] Speaker 01:
Yes, your honor.

[00:17:12] Speaker 02:
At step one?

[00:17:14] Speaker 01:
Sorry?

[00:17:14] Speaker 01:
At step one.

[00:17:15] Speaker 01:
Yes, that's in our reply brief.

[00:17:24] Speaker 02:
I don't remember it in your blue brief.

[00:17:32] Speaker 01:
It's on page two of the reply brief, the great brief.

[00:17:37] Speaker 01:
How about the blue brief?

[00:17:41] Speaker 01:
Your honor, it is in the step two analysis in the blue brief.

[00:17:44] Speaker 01:
Okay, it's in step two.

[00:17:50] Speaker 01:
The next challenge to VA's final rule is that the final rule combines two stat... Sorry.

[00:17:59] Speaker 01:
is that the final rule redefines the statutory requirement that a veteran have a serious injury.

[00:18:04] Speaker 01:
The statutory text expressly defines a serious injury at 38 USC section 1720.

[00:18:09] Speaker 05:
No, it just says including the following.

[00:18:12] Speaker 05:
It says that a serious injury includes traumatic brain injury, other mental health disorders, right?

[00:18:20] Speaker 01:
Yes, Your Honor.

[00:18:21] Speaker 05:
But suppose that my mental health disorder was just something quite simple and not very serious.

[00:18:29] Speaker 05:
like ADHD or something.

[00:18:30] Speaker 05:
And I'm not saying that's never serious.

[00:18:32] Speaker 05:
Please don't misunderstand me.

[00:18:33] Speaker 05:
But suppose my version of it.

[00:18:35] Speaker 05:
Or in fact, some people can have traumatic brain injury and be rated 0% disabled, correct?

[00:18:41] Speaker 01:
Correct.

[00:18:41] Speaker 05:
Meaning it really doesn't have any significant impact on their life function, or they would have gotten some disability rating for it.

[00:18:49] Speaker 05:
So the statute clearly isn't meaning to encapsulate all examples of those things that are in the including category.

[00:18:58] Speaker 05:
So why isn't the word serious injury and then those things in the parentheses, the types of injuries, which if serious enough, are the type that would give rise to these benefits?

[00:19:10] Speaker 01:
Uh, well, the statute doesn't say if serious enough.

[00:19:14] Speaker 05:
What's a serious injury?

[00:19:15] Speaker 01:
Yes, correct, Your Honor.

[00:19:16] Speaker 05:
But not all mental health disorders are serious injuries.

[00:19:21] Speaker 01:
Based on the plain text of this statute, all TBIs, psychological traumas, or other mental health disorders are serious injuries.

[00:19:28] Speaker 05:
Other mental health disorders is a really broad category, right?

[00:19:32] Speaker 05:
So you're saying all mental health disorders are considered serious injuries for which people are eligible for these benefits.

[00:19:39] Speaker 01:
Well, in that case, you would go back to one of the canons where you would maybe look at the third term and analyze it in comparison to the first two terms.

[00:19:49] Speaker 01:
So the mental health disorder is similar to a TBI or other psychological trauma.

[00:19:54] Speaker 01:
And so just because a veteran has a serious injury doesn't mean that the veteran will get benefits.

[00:19:59] Speaker 01:
The veteran still needs to satisfy the requirements for ADLs or a need for supervision or protection.

[00:20:05] Speaker 01:
And so this statute says that a serious injury includes TBI, even if the TBI is rated at less than 70%.

[00:20:12] Speaker 03:
In fact, there's no- But what if the TBI is rated zero?

[00:20:16] Speaker 01:
Yes, it does.

[00:20:17] Speaker 03:
It covers that too?

[00:20:19] Speaker 01:
The definition for serious injury is in the statute and covers that TBI.

[00:20:24] Speaker 01:
But that doesn't mean that the veteran qualifies for benefits.

[00:20:28] Speaker 02:
Right.

[00:20:28] Speaker 02:
OK.

[00:20:29] Speaker 02:
So the parenthetical, in your view, defines serious injury.

[00:20:34] Speaker 02:
Correct, Your Honor.

[00:20:35] Speaker 02:
Any rated TBI is a serious injury, in your view.

[00:20:41] Speaker 02:
Correct.

[00:20:42] Speaker 02:
There must be a service connection or a TBI.

[00:20:44] Speaker 02:
What if it's some other kind of injury other than the three itemized ones?

[00:20:51] Speaker 02:
How would we know when someone has a serious injury?

[00:20:58] Speaker 02:
Let's say the veteran has a bum knee.

[00:21:02] Speaker 02:
How is the VA going to determine whether the knee injury, ailment, condition is of a quality that it is a serious injury?

[00:21:15] Speaker 01:
Well, in that case, the petitioners don't have a standing, don't have a position on whether one of the injuries that are not specifically listed requires a service connection, specific disability rating or not.

[00:21:29] Speaker 01:
That rule wasn't promulgated by the VA.

[00:21:32] Speaker 05:
So just to be clear, is it your argument then that the word serious injury must include any version of a mental disorder, any version of a traumatic brain injury,

[00:21:46] Speaker 05:
And then when it comes to all other kinds of injuries, what happens?

[00:21:52] Speaker 05:
I mean, then what?

[00:21:55] Speaker 05:
How does the VA, the VA has to determine if they're serious or not, right?

[00:21:58] Speaker 05:
Because the word including doesn't mean, and it excludes everything else.

[00:22:02] Speaker 05:
It means including at least these items.

[00:22:04] Speaker 01:
Correct.

[00:22:05] Speaker 01:
That's BW's, that's the petitioner's position that the serious injury must include at least a TBI.

[00:22:12] Speaker 01:
or other mental disorders that are comparable to the TBI.

[00:22:14] Speaker 05:
No, but that's not reasonable.

[00:22:16] Speaker 05:
Other mental disorders that are comparable to the TBI.

[00:22:19] Speaker 05:
Why?

[00:22:20] Speaker 05:
That's not what the statute says.

[00:22:21] Speaker 05:
It says, or other mental disorders.

[00:22:23] Speaker 05:
So that would theoretically include any mental disorder.

[00:22:26] Speaker 05:
If you're saying comparable to the TBI, you're doing that only by virtue of the word serious, which means you're trying to give meaning to that word.

[00:22:36] Speaker 05:
There are lots of mental health disorders that are not similar to a TBI, right?

[00:22:42] Speaker 01:
It's based on the statutory tool where the third item in a list is not considered to be everything, but should be looked at in context of the first two elements of the list.

[00:22:54] Speaker 01:
And so it's based on the statutory text itself.

[00:22:58] Speaker 02:
So is it your view that

[00:23:00] Speaker 02:
The term serious injury is partially unambiguous and partially ambiguous, partially unambiguous in the sense that it itemizes three things that can be serious injuries.

[00:23:11] Speaker 02:
But then for any other kind of injury, like a knee condition, the serious injury term is ambiguous.

[00:23:21] Speaker 01:
It may or may not be ambiguous, but we know that the final rule itself disqualifies a veteran with TBI service connection for TBI based on the rating, even though the statute plainly contemplates that a TBI is included as a serious injury.

[00:23:37] Speaker 02:
OK.

[00:23:37] Speaker 02:
So if the rule had said 10% disability rating qualifies as a serious injury, you would say that's invalid.

[00:23:51] Speaker 01:
Correct, Your Honor, based on the plain text of the statute.

[00:23:57] Speaker 05:
OK.

[00:23:57] Speaker 05:
Is there another provision you want to get to?

[00:24:00] Speaker 05:
Why don't you get to need for supervision, protection, or instruction?

[00:24:04] Speaker 05:
Because that seems like an odd duck one to me.

[00:24:08] Speaker 01:
Yes, Your Honor.

[00:24:09] Speaker 01:
The statutory text at 38 USC section

[00:24:12] Speaker 01:
1720G-A2C expressly states that a supervision or protection relates to neurological impairment or other injury, and regular or extensive instruction relates to an impairment to a veteran's ability to function in daily life.

[00:24:27] Speaker 01:
But VA's final rule replaces the statutory text with VA's own definition that a veteran must have an impairment that directly impacts personal safety on a daily basis.

[00:24:38] Speaker 01:
VA claims they combine these two statutory criteria because they cannot distinguish between them.

[00:24:44] Speaker 01:
But a court cannot waive the ambiguity flag because a statute might seem unclear on a first read.

[00:24:49] Speaker 01:
There's also no text in the statute to support that a veteran must have an impairment.

[00:24:53] Speaker 05:
Well, two little i doesn't say anything about daily basis, right?

[00:24:57] Speaker 05:
But three little i actually uses the words daily life.

[00:25:03] Speaker 05:
Maybe the daily life component would be okay for the regular extensive instruction or supervision because that's what that statutory section says but for two little I It doesn't say anything about in daily life well petitioners disagree about the three little I as well because I

[00:25:21] Speaker 01:
That text states that a veteran may qualify for benefits based on a need for a regular or extensive instruction due to an impairment to the ability to function in daily life.

[00:25:31] Speaker 01:
For example, a veteran with children.

[00:25:33] Speaker 05:
So the reason I think that you have a great case on three little i.

[00:25:36] Speaker 05:
I don't know what you're about to say, but I feel like you're going off in a direction different than I want to, so I'm going to take you where I want, which is... That doesn't say anything about safety.

[00:25:44] Speaker 05:
It just says seriously impaired.

[00:25:46] Speaker 05:
It doesn't say you have to have a risk, a safety risk.

[00:25:49] Speaker 05:
You can be seriously impaired without necessarily having a safety risk.

[00:25:53] Speaker 01:
Correct.

[00:25:54] Speaker 01:
For example, a veteran with children.

[00:25:56] Speaker 01:
The safety risk might be to the veteran's children as opposed to the veteran himself.

[00:26:02] Speaker 01:
And so that would qualify under the statute.

[00:26:05] Speaker 01:
But the final rule requires that the risk to safety be to the veteran himself.

[00:26:10] Speaker 01:
And so that is contrary to this subsectional statute.

[00:26:15] Speaker 02:
So are you saying that it's still safety-centric?

[00:26:19] Speaker 01:
It may or may not be.

[00:26:20] Speaker 01:
But at least it's not a requirement that it be

[00:26:24] Speaker 01:
the veterans' personal safety.

[00:26:25] Speaker 05:
Well, three little i doesn't say anything about safety.

[00:26:28] Speaker 05:
That new sort of safety, only two little i does.

[00:26:33] Speaker 01:
Yes, Your Honor.

[00:26:35] Speaker 02:
I mean, aren't there other daily life functions that would be seriously impaired that have nothing to do with safety?

[00:26:41] Speaker 05:
Like, for example, I can't shower or use the toilet or whatever.

[00:26:45] Speaker 05:
I mean, those seem pretty significant.

[00:26:46] Speaker 05:
Those seem like serious impairments to me, but they don't necessarily have anything to do with safety.

[00:26:51] Speaker 01:
Correct, Your Honor.

[00:26:53] Speaker 05:
Okay, well, is there any other one you want to hit upon?

[00:26:58] Speaker 05:
Your time is so badly over, but if you want to hit on one more, we'll give you a free beat.

[00:27:02] Speaker 01:
Go ahead.

[00:27:03] Speaker 01:
Maybe I'll just quickly summarize the last three.

[00:27:07] Speaker 01:
For the geographic residence requirement, the text states that when geographic residence matters, it matters for the benefit amount.

[00:27:15] Speaker 01:
So geographic residence should not matter for eligibility.

[00:27:18] Speaker 01:
And for the GS scale requirement, it states that the benefit amount shall be a commercial rate for a home health care entity.

[00:27:24] Speaker 01:
And the GS scale is neither a commercial rate nor a home health care entity rate.

[00:27:29] Speaker 01:
And lastly, for the 100% assistance with ADLs and the inability to self-sustain requirements, the text does not contemplate excluding veterans who require 99% assistance for all ADLs.

[00:27:41] Speaker 01:
And so in closing, the statute would rarely or would be truly ambiguous after the court applies all the tools of construction.

[00:27:48] Speaker 01:
And so no deference should be given to VA under Chevron step one.

[00:27:52] Speaker 05:
And under Chevron step two, the- OK, your version of quickly and my version of quickly are definitely not the same.

[00:27:59] Speaker 05:
Thank you, Your Honor.

[00:28:00] Speaker 05:
Thank you.

[00:28:01] Speaker 05:
Let's go ahead and hear from the government.

[00:28:06] Speaker 05:
Is it Ms.

[00:28:07] Speaker 05:
Bae?

[00:28:08] Speaker 05:
Yes.

[00:28:09] Speaker 05:
Ms.

[00:28:09] Speaker 05:
Bae, please proceed.

[00:28:14] Speaker 00:
May it please the court.

[00:28:15] Speaker 00:
My intention is to, I think, touch on the same issues that Mr. Lee just touched on.

[00:28:21] Speaker 00:
As your honor stated, there are many issues here.

[00:28:23] Speaker 00:
So in the interest of time, that was my plan, unless the court has course questions on the other.

[00:28:28] Speaker 02:
Do you agree Mr. Chilson has standing to challenge the 70% rating for serious injury?

[00:28:33] Speaker 00:
We think that if the court decides to accept Mr. Chilson's supplemental declaration, which I think that petitioners moved to file like four or five days ago, then I think that we probably wouldn't be able to contest standing on that anymore.

[00:28:48] Speaker 00:
If the court determines that such submission is untimely, then we would think his original declaration does not.

[00:28:54] Speaker 00:
Why not?

[00:28:54] Speaker 05:
His original declaration says he was 60% disabled and that he couldn't perform lots of daily life functions.

[00:29:01] Speaker 00:
His original declaration, at least to my reading, appeared to say that he was recently discharged and that he didn't qualify under the 60%.

[00:29:11] Speaker 00:
However, as we stated in our supplemental brief,

[00:29:17] Speaker 00:
Mr. Chilson was actually discharged in 2018, and that would have been under the old version of the regulations.

[00:29:23] Speaker 05:
But why is that relevant?

[00:29:24] Speaker 05:
Why isn't Mr. Lee correct?

[00:29:26] Speaker 05:
The question isn't would you have gotten benefits under the old version, but rather does this, which is now in effect, prevent you from getting benefits but for the error he's arguing you would get?

[00:29:39] Speaker 00:
I think that Mr. Lee's

[00:29:42] Speaker 00:
Point on that makes sense.

[00:29:44] Speaker 00:
And that's why I think that if the court considers the supplemental declaration, then we would not contest standing on that ground anymore.

[00:29:51] Speaker 00:
Because I think the supplemental declaration is a lot clearer on the nature of his discharge and his plan to reapply in a way that the First Secretary said.

[00:29:59] Speaker 05:
I just want to make it really clear for my purposes when you said his position makes sense.

[00:30:04] Speaker 05:
What I was referring to is the fact that his argument, I have to prove injury, in fact, from this regulation.

[00:30:12] Speaker 05:
And I can show that but for these problematic terms, this veteran would be awarded benefits.

[00:30:18] Speaker 05:
That's all he needs to establish for standing.

[00:30:20] Speaker 05:
Is that correct?

[00:30:22] Speaker 00:
Yes, Your Honor.

[00:30:22] Speaker 00:
But given that his original declaration said that he was discharged, and as it turns out in 2018, we don't think that the first declaration sufficiently states that but for this 70% rating, he would have been accepted given that he was dismissed on grounds that had nothing to do with the 70% rating, that there might be

[00:30:41] Speaker 00:
many other factors, whatever the factors were for which he was originally dismissed that would prevent him from getting benefits in spite of the 70, or in addition to the 70% rating.

[00:30:52] Speaker 00:
But as I said, I think the supplemental declaration makes that a little bit clearer, talking about how his condition has worsened and such.

[00:30:59] Speaker 05:
Just so that I'm clear, are there any of these terms for which you believe they have still failed to satisfy the standing requirement?

[00:31:07] Speaker 00:
Well, as Your Honor mentioned, I think that

[00:31:10] Speaker 00:
the inability to perform three ADLs as part of unable to self-sustain in the community.

[00:31:16] Speaker 00:
I don't think any of their declarations specifically discuss that, as your honor noted.

[00:31:21] Speaker 00:
Secondly, I think, and I don't think we put this as clearly as we potentially could have in our supplemental motion, but in regard to the continuous requirement of unable to self-sustain, I don't think that Mr. Wright

[00:31:35] Speaker 00:
So I guess just to back track a little bit, I know this is a little bit convoluted.

[00:31:39] Speaker 02:
Yeah, I guess getting to Mr. Wright, I'm trying to understand, should Mr. Wright be in legitimate fear that he's going to get kicked out of the program?

[00:31:49] Speaker 02:
Because his issues, his dark thoughts that come upon him pretty regularly,

[00:31:59] Speaker 02:
You know, he needs someone right there, his wife at all times, when he's going through those dark experiences.

[00:32:06] Speaker 02:
But it's not constantly happening.

[00:32:09] Speaker 02:
But nevertheless, couldn't it be said that for him, he does need continuous care or someone there with him on a daily basis for protection purposes?

[00:32:20] Speaker 00:
Well, Your Honor, that's why I think that in our supplemental brief, we were not challenging Mr. Wright's standing to challenge the

[00:32:30] Speaker 00:
the functional impairment that directly impacts his ability.

[00:32:33] Speaker 00:
We're not challenging his standing on that ground.

[00:32:35] Speaker 00:
I think we're only challenging his standing on the ground of need for supervision, protection, or instruction on a continuous basis, because that specific clause only applies to the level of the stipend.

[00:32:47] Speaker 00:
It does not apply to eligibility.

[00:32:48] Speaker 00:
And Mr. Wright makes no factual allegations with regard to the amount of his stipend being reduced.

[00:32:53] Speaker 00:
as a result of that clause.

[00:32:55] Speaker 00:
And so we're not challenging his standing to be able to challenge eligibility on some of these other grounds he mentions, but he doesn't say anything about how his stipend would be reduced because he can't meet the continuous basis.

[00:33:07] Speaker 02:
So are you saying, getting back to the supervision instruction protection definition, that Mr. Wright is in fact harmed by that requirement in the regulation about

[00:33:20] Speaker 02:
personal safety on a daily basis because what he has described as his condition doesn't satisfy that regulation.

[00:33:31] Speaker 00:
We're not contesting that Mr. Wright has sufficiently established standing for veteran warriors to challenge that aspect.

[00:33:39] Speaker 02:
He's harmed by that.

[00:33:40] Speaker 00:
Well, we wouldn't concede that he's harmed.

[00:33:42] Speaker 00:
I don't think we can see that he's actually harmed without doing a factual dive into this.

[00:33:47] Speaker 00:
But I think he's established for the sufficiency of standing purposes the likelihood of harm.

[00:33:54] Speaker 00:
I think is the line that we would draw there.

[00:33:56] Speaker 00:
But again, we don't think that he has satisfied the continuous basis and unable to self-sustain because that goes to the level of the stipend rather than to eligibility.

[00:34:06] Speaker 02:
Sorry to ask this question.

[00:34:07] Speaker 02:
This is a little complicated.

[00:34:08] Speaker 02:
But if we were to strike down the regulation that defines supervision, instruction, and protection, would that necessarily destabilize the definition of unable to self-sustain?

[00:34:23] Speaker 00:
I don't believe that, so if the court were to strike down the aspect of the regulation that talks about need for supervision, protection, and instruction, I don't believe that that should

[00:34:38] Speaker 00:
negate or at least automatically negate the definition of unable to self-sustain because, for one, unable to self-sustain is not a phrase, neither the definition nor the phrase unable to self-sustain is a part of the statute.

[00:34:52] Speaker 00:
Rather, it's an exercise of VA's gap-filling abilities because all the statute does is direct VA to establish a schedule.

[00:35:01] Speaker 00:
I don't know if it uses the words here, but it essentially directs VA to establish a schedule for determining

[00:35:06] Speaker 00:
levels of stipend, depending on various factors.

[00:35:09] Speaker 00:
And so VA was within its explicitly delegated gap-filling authorities to come up with this definition of unable to self-sustain in order to reach the 100% stipend level.

[00:35:21] Speaker 00:
And then the factors it uses to determine unable to self-sustain are, again, not in contradiction to any aspect of the statute.

[00:35:31] Speaker 00:
the few aspects of the regulation that Mr. Lee discussed.

[00:35:34] Speaker 00:
Just very quickly with regard to in-person, we didn't touch on this too much in our brief.

[00:35:40] Speaker 00:
We mostly concentrated on step two of Chevron, mostly in the interest of the workout limit, to be frank.

[00:35:48] Speaker 00:
But we do think that to the extent that the statutory framework and congressional intent points

[00:35:53] Speaker 00:
one way or the other, it certainly points in favor of in-person.

[00:35:57] Speaker 02:
And we do want to point out that I think- Let's start with the in-need-of, government's interpretation of in-need-of as demanding that the personal care services be done in-person.

[00:36:13] Speaker 02:
Let's assume for the moment, I don't think that makes any sense.

[00:36:17] Speaker 02:
What's your backup argument?

[00:36:20] Speaker 00:
Sorry, I'm not sure I quite understood your question.

[00:36:22] Speaker 02:
Well, as I understand your position, you relied on the phrase in need of for in need of personal care services as the key phrase that requires the personal care services to be done in person.

[00:36:40] Speaker 02:
In need of equals in person, as I understand the government's position.

[00:36:45] Speaker 02:
Am I wrong about that?

[00:36:46] Speaker 00:
I think we pointed out that the statute does not define the entire phrase in need of personal care services.

[00:36:53] Speaker 00:
And our position is that the statutory framework as a whole supports the statement that in need of personal care services indicates that those personal care services should be in person.

[00:37:04] Speaker 05:
So in order for us to understand the government's interpretation

[00:37:10] Speaker 05:
We have to know what language it is that you believe imbues the meaning that you're asserting.

[00:37:20] Speaker 05:
So do the words personal care services standing alone in the government's interpretation require in-person performance?

[00:37:32] Speaker 00:
I think, yes, for the purposes of PCAFC, they do.

[00:37:35] Speaker 00:
Oh, they would also then.

[00:37:36] Speaker 00:
Yeah, that's a problem.

[00:37:38] Speaker 02:
You're saying personal care services in context of the general care services provision doesn't mean in person?

[00:37:48] Speaker 02:
It's the same phrase.

[00:37:50] Speaker 00:
Right.

[00:37:50] Speaker 00:
And in the same statute.

[00:37:52] Speaker 05:
I don't think I'm speaking one way or another in terms of- We Ukraine have to, because you told us we should look at the statutory context as a whole 10 seconds ago, and that's part of the same statute.

[00:38:03] Speaker 00:
It is, but there are differences in PGCSS and PCAFC.

[00:38:08] Speaker 00:
And just to make it clear, I'm not stating that VA couldn't determine that PGCSS services had to be in person.

[00:38:14] Speaker 00:
I'm stating that at least for the purposes of PCAFC.

[00:38:18] Speaker 05:
And I know that there's- But you want us to find that the words personal care services unambiguously require in person under the statute.

[00:38:27] Speaker 05:
And I think that- Then that would apply to both, just so we're clear.

[00:38:31] Speaker 05:
That it has to.

[00:38:32] Speaker 05:
There's no reasonable basis upon which you could say that in a single statute, when the word is used repeatedly, it has a different meaning.

[00:38:41] Speaker 00:
I think that the reason that one could treat them differently is because of the definition section of the statute.

[00:38:47] Speaker 00:
PGCSS only talks about caregivers, whereas PCAFC talks about family caregivers.

[00:38:56] Speaker 05:
equally clear, those family caregivers don't have to live in the home.

[00:38:59] Speaker 05:
But actually, how in the world does the fact that you happen to have the same blood relationship that I do mean that your services have to be in person, as opposed to if you don't have a blood relationship, they don't have to be in person?

[00:39:12] Speaker 00:
Well, I was actually a little bit confused as to Mr. Lee's statement that the definition says that the person doesn't need to live with the veteran.

[00:39:19] Speaker 00:
I may be missing it, but I did not see that in the definition of family caregiver, that the person doesn't need to live with the veteran.

[00:39:26] Speaker 02:
Indeed, family member.

[00:39:28] Speaker 02:
Well, the family member doesn't say family member who is a member of the family and lives with the veteran.

[00:39:35] Speaker 02:
It's only for the person that's not a member of the family.

[00:39:39] Speaker 02:
That person.

[00:39:40] Speaker 02:
that non-family member has to live with the veteran.

[00:39:43] Speaker 00:
Right.

[00:39:43] Speaker 00:
But I think Mr. Lee had said that the statute specifically said that family member meant that the person didn't have to live with the veteran.

[00:39:50] Speaker 00:
And the only reference I see to living with the veteran or not is that a family member can be someone who lives with the veteran but is not a member of the family of the veteran.

[00:39:58] Speaker 00:
And that, to us, indicates the intention for the personal care services to be in person.

[00:40:04] Speaker 05:
Wait, wait, wait.

[00:40:05] Speaker 05:
In person?

[00:40:08] Speaker 02:
Let's get back to personal care services, that term.

[00:40:13] Speaker 02:
Let's assume that this court is not going to write an opinion that says personal care services for the family caregiver program means one thing and personal care services for the general caregiver program means something else.

[00:40:28] Speaker 02:
Let's assume we've got to say it's the same thing.

[00:40:32] Speaker 02:
that phrase.

[00:40:34] Speaker 02:
If you want to point us to other terms, other phrases for the family caregiver program that really force the answer that the family caregiver program has to be done in person, then that's fine.

[00:40:47] Speaker 02:
But if you are trying to rely on

[00:40:50] Speaker 02:
just the phrase personal care services alone as being decisive, but then tell us that personal care services means something different in the general caregiver program, I don't think that's a position we can accept.

[00:41:05] Speaker 00:
Well, I think Judge Chen, you stated while Mr. Lee was speaking that there is the subsection of the statute that applies only to PCAFC about the stipend for the eligible veteran not being less than a monthly amount that a commercial home health care entity would pay.

[00:41:22] Speaker 00:
And VA, I think, explained in both its proposed and final rules that

[00:41:27] Speaker 00:
This indicates that the kind of job that they're doing would be commensurate to something a home health care aide would do.

[00:41:33] Speaker 00:
It also talks about respite care, which to my understanding, I don't think respite care is specifically defined in the statute or the regulation, but my understanding is that those would be in-person services to relieve the caregiver, such as hospital outpatient care or adult daycare or somebody coming to your home.

[00:41:49] Speaker 00:
Did you argue this?

[00:41:50] Speaker 05:
Excuse me?

[00:41:50] Speaker 00:
Did you argue this?

[00:41:53] Speaker 00:
I can't remember if we mentioned respite care in our brief, but VA definitely stated it in its proposed rule, I believe, that the term respite care was a reason to construe services as being in person.

[00:42:06] Speaker 00:
So it is something that VA relied upon in its rulemaking below.

[00:42:12] Speaker 00:
Moving on to the series.

[00:42:15] Speaker 05:
Can we just stick with this for a sec?

[00:42:17] Speaker 05:
Sure.

[00:42:17] Speaker 05:
Because I will be honest, I don't know what to do with it.

[00:42:22] Speaker 05:
Is the government's position that the words personal care services in this statute are what require the interpretation that the services be in person?

[00:42:36] Speaker 05:
Is it because of the word personal?

[00:42:37] Speaker 05:
Because that would actually make sense to me, just to be clear.

[00:42:40] Speaker 00:
That's one of the reasons.

[00:42:41] Speaker 00:
We think that there's four or five reasons under the statutory framework why it should be in person.

[00:42:48] Speaker 00:
And I think the word personal, as I think we explained in our brief and as VA explained, is certainly one of those, along with the respite care issue and the commercial home health care.

[00:42:57] Speaker 05:
But if we include under Chevron step one,

[00:42:59] Speaker 05:
that the statute is unambiguous that Congress intended them to be in person because they used the word personal care services, then you understand it applies to both, right?

[00:43:10] Speaker 05:
It applies to every way that term is going to appear.

[00:43:13] Speaker 00:
Yes, I agree.

[00:43:14] Speaker 00:
And I think that if VA, I'm not as familiar with the regulations for PGCSS, since PCAFC is what's at issue here.

[00:43:23] Speaker 00:
But I think if VA said that personal care services under PGCSS had to be in person also, I think that that would also be reasonable.

[00:43:32] Speaker 00:
I think that either way, everything in the statutory framework points to these services being in person and to the extent that it's

[00:43:44] Speaker 00:
not unambiguous.

[00:43:46] Speaker 00:
I think that it's a reasonable exercise of VA's gap-filling authority.

[00:43:49] Speaker 00:
They explained, I think, extensively in the final and proposed rules, not just its reasoning for this aspect, but its reasoning for all of the aspects.

[00:43:59] Speaker 00:
Just moving quickly to the seventh.

[00:44:00] Speaker 05:
If we have to go move to Chevron step two, what is the impact of the pro-veteran canon on this analysis?

[00:44:08] Speaker 00:
Governor, I understand that the placement of the pro-veteran canon is an issue that this Court is still very much discussing.

[00:44:17] Speaker 00:
I think that in this particular case, this Court's recent decision in Buffington v. McDonough, and we did not discuss this in our brief, but I believe that the decision came out after we filed our brief, is instructive because it states that

[00:44:32] Speaker 00:
You would defer in the face of statutory silence.

[00:44:35] Speaker 00:
And here, I think, most, if not all, of the aspects of the regulation are silent.

[00:44:40] Speaker 00:
agencies here, VA has the authority to fill gaps.

[00:44:43] Speaker 00:
And I think in a footnote to Buffington, Your Honor stated that because we hold the statutory scheme as silent, we need not resolve the party's dispute regarding the pro-veteran canon.

[00:44:52] Speaker 00:
And so to the extent that that comes into play here, I think the same rule would apply, which is that VA is exercising its gap-filling authorities rather than construing ambiguous terms.

[00:45:03] Speaker 00:
And therefore, the veterans' canon dispute wouldn't necessarily need to be resolved by this court for purposes of this particular appeal.

[00:45:09] Speaker 05:
Are there other provisions you'd like to address?

[00:45:13] Speaker 00:
I think you should go to serious injury.

[00:45:14] Speaker 00:
How about that?

[00:45:15] Speaker 00:
Sure, I can do that.

[00:45:17] Speaker 00:
With regard to serious injury... Is that term unambiguous?

[00:45:21] Speaker 00:
I think that term is not defined, and it's a reasonable exercise of VA's authority to... So we have to get to step two on this one.

[00:45:30] Speaker 05:
I think so, because there's no definition.

[00:45:32] Speaker 05:
How could you say?

[00:45:33] Speaker 05:
You couldn't say the statute otherwise requires the 70% be adopted.

[00:45:38] Speaker 00:
No, I completely agree on that.

[00:45:40] Speaker 00:
I think the statute states serious injury, and it's up to VA to define what serious injury is under its expressed delegation of authority.

[00:45:48] Speaker 02:
And here, VA came up with- Is it the VA's position that there can never be a serious injury that's less than a 70% rating?

[00:45:57] Speaker 00:
It's VA's position that, for the purposes of eligibility under PCAFC, it's going to define serious injury as a 70% service connection rating and explain this, I think, again, in a lot of detail in its proposed and final rules.

[00:46:13] Speaker 02:
There needs to be some fresh- Just under the statute.

[00:46:16] Speaker 02:
I mean, the statute doesn't give us a lot.

[00:46:18] Speaker 02:
We all understand that.

[00:46:20] Speaker 02:
And the VA's got to run a railroad over there and wants clear,

[00:46:26] Speaker 02:
rules where it can find them but The question is why can't there be a serious injury?

[00:46:36] Speaker 02:
That's rated at less than 70% for example 60% I think that

[00:46:42] Speaker 00:
Under the statute itself, as Your Honor pointed out, the term serious injury isn't defined.

[00:46:48] Speaker 00:
All it does is include a series of examples.

[00:46:52] Speaker 00:
And I think we read it like the court indicated, that you wouldn't say all percent service ratings in connection with these three issues would be considered serious injuries.

[00:47:03] Speaker 00:
And so I think that VA has to make a judgment call at some point about what sort of standard to put forth as to what serious injury means for the purposes of this statute.

[00:47:11] Speaker 00:
And it explained that it considered 50 and 60, and it considered 90 and 100, and it determined that 70% best fit

[00:47:20] Speaker 00:
what they were looking for as far as serious injury, not wholly because of, but at least in part of the fact that I think 98% of the existing program already had a 70% service connection rating.

[00:47:32] Speaker 00:
They also further determined that it needed to revise the definition of serious injury because

[00:47:38] Speaker 00:
One of the spurring factors for the revision of these regulations was the 2018 passage of the Mission Act which expanded care to pre-9-eleven veterans.

[00:47:48] Speaker 05:
Mr. Lee gets himself in trouble on this provision because he can't answer the question of what a serious injury is that isn't a traumatic brain injury, psychological trauma or mental disorder.

[00:48:02] Speaker 05:
It has to be the case that Congress intended for the VA to determine how bad a knee injury is a serious injury, right?

[00:48:11] Speaker 05:
So it has to be the case that it would be, it can't be the case that it's unreasonable for you to pick a disability.

[00:48:17] Speaker 05:
number rating as opposed to having to reassess each injury in a separate capacity hearing.

[00:48:25] Speaker 05:
But the problem is, and the one thing that I have some sympathy for him on from a sort of a plain-meaning sort of scenario is, but what about the specifically enumerated examples like traumatic brain injury?

[00:48:38] Speaker 05:
Why isn't it the case that Congress was indicating that all traumatic brain injuries are in fact serious injuries?

[00:48:46] Speaker 05:
Serious injury

[00:48:47] Speaker 05:
parentheses, traumatic brain injury.

[00:48:50] Speaker 05:
Suppose no other examples were given, just serious injury, including, in parentheses, traumatic brain injury.

[00:48:57] Speaker 05:
I mean, it just sounds pretty serious to me.

[00:48:59] Speaker 05:
And so why isn't that at least always a serious injury, even if things other than specifically enumerated ones have to make the 70% mark?

[00:49:11] Speaker 00:
I think the answer to that

[00:49:15] Speaker 00:
goes back to something that your honor said to Mr. Lee, which is that a traumatic brain injury could be rated for 0% or 10%.

[00:49:21] Speaker 00:
And in these cases, that wouldn't necessarily interfere with the veteran's ability to take care of themselves or their daily lives.

[00:49:29] Speaker 05:
Well, if that's the case, he would be denied under another section, right?

[00:49:31] Speaker 05:
He wouldn't need the supervision, the protection.

[00:49:33] Speaker 05:
He wouldn't have the impairments to the daily life activities.

[00:49:37] Speaker 05:
I mean, why do we need to say a traumatic brain injury isn't a serious injury?

[00:49:42] Speaker 05:
The example you're giving would

[00:49:45] Speaker 05:
make it such that he doesn't qualify under other provisions.

[00:49:48] Speaker 05:
There are other provisions that address just how disabled he must be.

[00:49:52] Speaker 05:
This is defining the types of injuries that even open the door to the possibility of benefits, not defining the impact those injuries have to have on your life.

[00:50:03] Speaker 00:
Yes, Your Honor, and I think you said taking it alone, but I don't think you can take it alone outside of psychological trauma or other mental disorders.

[00:50:12] Speaker 00:
As Your Honor pointed out, ADHD with a 10% rating could qualify under mental disorder, and I don't think that

[00:50:20] Speaker 00:
Maybe I'm wrong, but I'm not sure even Mr. Lee would state that that is a serious injury under any sort of common sense definition of the term.

[00:50:27] Speaker 00:
And there's nothing, I think, in the framework or the statute that would counsel treating traumatic brain injury, psychological trauma, or other mental disorder differently from each other.

[00:50:38] Speaker 00:
And I think, as Your Honor pointed out, it wouldn't make sense to have one category

[00:50:43] Speaker 00:
of what defines a serious injury for those three issues and another for what defines a knee injury or something, an illness stemming out of herbicide exposure in Vietnam, that sort of thing.

[00:50:54] Speaker 00:
And so they came up with a uniform

[00:50:58] Speaker 00:
definition of serious injury, in part to address the 2018 Mission Act, and in another to address the, I think, unequal implementations that were occurring from their previous definition.

[00:51:08] Speaker 05:
OK, can I get you to move on to the need for supervision, protection, and instruction?

[00:51:12] Speaker 00:
Yes, Your Honor.

[00:51:13] Speaker 00:
And my understanding is this is one that the Court has, I think, some of the most questions about.

[00:51:21] Speaker 00:
We don't dispute that VA

[00:51:24] Speaker 00:
sort of combined these two parts of the statute for the purposes of the regulation, but we disagree that it did so in a way that narrowed basically what the statute means or unlawfully restricted the meaning of the statute.

[00:51:40] Speaker 00:
Previously, VA's regulation... Well, I guess to take a step back, the 2018 Mission Act actually added

[00:51:48] Speaker 00:
little triple I, that was not, I think, part of the original statute.

[00:51:53] Speaker 00:
And so VA needed some way to address the little triple I and its original definition under the little double.

[00:52:00] Speaker 02:
Is it fair to say that your new definition is narrower than your previous definition in the regulation?

[00:52:07] Speaker 00:
I don't think so.

[00:52:08] Speaker 00:
VA actually believes that the definition is broader than the old definition because the old definition actually cabins the neurological or other impairment or injury to a predetermined list of, I think, seven impairments.

[00:52:20] Speaker 05:
So here's my problem.

[00:52:22] Speaker 05:
Let's say three little i.

[00:52:24] Speaker 05:
Your interpretation now requires that it impacts the veteran's ability to maintain personal safety on a daily basis in Three Little Eye.

[00:52:34] Speaker 05:
Daily life right there with you 100%.

[00:52:36] Speaker 05:
But where's the safety part?

[00:52:38] Speaker 05:
Safety isn't mentioned.

[00:52:39] Speaker 05:
It's just talking about a need for regular or extensive instruction or supervision

[00:52:44] Speaker 05:
without which the ability to function in daily life will be seriously impaired.

[00:52:48] Speaker 05:
What if I can't use the toilet by myself?

[00:52:51] Speaker 05:
That would qualify as a serious impairment.

[00:52:53] Speaker 05:
It has to.

[00:52:54] Speaker 05:
And that is something to do with safety.

[00:52:57] Speaker 00:
Well, I guess without getting too much into the example, I mean, I think it could implicate safety as could most of these issues if you were to take a broad view of the veteran not being able to safely do these activities by themselves.

[00:53:12] Speaker 00:
But I think that the statute

[00:53:15] Speaker 00:
It's true that it does not specifically speak about safety, but VA construed the maintaining their safety on a daily basis together with a functional impairment to encapsulate what it thought that Congress was intending by this.

[00:53:29] Speaker 00:
Unfortunately, I can't find anything in the legislative history that says anything one way or the other about this.

[00:53:34] Speaker 00:
But I think that, again, I think at worst it would be silent on this point.

[00:53:39] Speaker 00:
And VA is reasonably construing this

[00:53:43] Speaker 00:
be a functional impairment that affects the veteran's safety, personal safety, on a daily basis.

[00:53:49] Speaker 05:
And I don't think- But Two Little Eyes says nothing about daily basis.

[00:53:54] Speaker 05:
two little i's says a need for supervision or protection so when you talk about the word protection I can imagine the safety component being relevant because protection from you know safety sounds reasonable enough but based on symptoms or residuals of neurological or other impairment or injury it doesn't say on a daily basis and since three little i and one little i both say affects daily living and two little i doesn't why would I import

[00:54:22] Speaker 05:
They know how to use daily living when they wanted to.

[00:54:24] Speaker 05:
They used it on the bookend for visions on either side, but they didn't on this one.

[00:54:30] Speaker 05:
Why would I read it in there?

[00:54:33] Speaker 00:
Because there needs to be some way for VA to determine the frequency of the need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury.

[00:54:44] Speaker 00:
I understand Your Honor's point that it states daily life or daily living in

[00:54:49] Speaker 00:
with one little eye and three little eyes.

[00:54:51] Speaker 00:
But I don't think that anyone would seriously argue that this need for supervision or protection could be once a month, and that would qualify the veteran for the program.

[00:55:02] Speaker 00:
I think that goes against the very nature of this particular family.

[00:55:06] Speaker 05:
Can I ask a question?

[00:55:07] Speaker 05:
When we're talking about these benefits, these family caregiver benefits, are they necessarily awarded financially based on the concept of 24-7?

[00:55:16] Speaker 05:
What if the veteran needs help showering

[00:55:19] Speaker 05:
But he only showers every three days.

[00:55:21] Speaker 05:
So the family caregiver helps him shower every third day.

[00:55:26] Speaker 05:
Arguably, you could say that's not daily living, because it's something that happens only every three days.

[00:55:32] Speaker 05:
So why wouldn't something like that fit in here?

[00:55:38] Speaker 00:
Because that veteran would qualify under the other prong, which is

[00:55:43] Speaker 00:
which under the first prong not two or three of that prong but one which VA has specifically stated in its proposed and final rules that those activities I think showering might be a specific or bathing would be a specific activity that's listed as an activity of daily living

[00:55:59] Speaker 00:
VA has been very clear that those don't need to take place every day, but just each time that the veteran performs those activities.

[00:56:05] Speaker 00:
So if a veteran needs help every three days, and that's how often they shower, but they need that help when they shower, then they would qualify under prong little one and the definition of inability to perform an activity of daily living.

[00:56:19] Speaker 00:
So there would be no need to address their qualification under little two and little three.

[00:56:24] Speaker 05:
Let me follow up again.

[00:56:25] Speaker 05:
I guess one of the things I'm trying to figure out is, is there a way

[00:56:28] Speaker 05:
for family caregivers to receive support or compensation or whatever for work that they don't perform daily or is it like I mean meaning okay I need to go help my family member this often is there is their compensation keyed to how much time and energy they need to spend doing this or is the compensation standardized it's

[00:56:53] Speaker 00:
This is probably maybe more complicated than I'm needing to make it, but it's sort of both.

[00:57:01] Speaker 00:
For the purposes of determining the level of compensation, whether to compensate them I think at 100% or 62.5%, that amount of time that's taken into account and the amount of effort is

[00:57:14] Speaker 00:
is part of making that qualification, which is why the definition of unable to self-sustain in the community is what VA came up with for the 100% level.

[00:57:22] Speaker 00:
For the question of eligibility, VA has made it clear that for activities of daily living that the person doesn't have to do that activity every day.

[00:57:33] Speaker 00:
And I think it's also made clear that under its definition of need for supervision, instruction, or protection, it's not that

[00:57:41] Speaker 00:
the person has to, I think VA explained, and I apologize, I don't have the exact language in front of me, that it's not that the person has to every day make sure that the veteran, like chase the veteran out the door if they have dementia and they're trying to leave the house, but rather that the person's presence or supervision or instruction is necessary because of the potentiality that the veteran would impair their safety by being able to leave the house.

[00:58:08] Speaker 00:
And that might be a little bit garbled of an example, but I think

[00:58:10] Speaker 00:
It's just that this has to be sort of a regular or pervasive thing, and not, I think, technically something that has to be done every day, as Your Honor said, something like showering.

[00:58:20] Speaker 05:
Can I ask you just for one second, or one minute or so, to touch on the residents in state, and then we'll just let you sit down after.

[00:58:28] Speaker 05:
Thank you, Your Honor.

[00:58:29] Speaker 05:
What's up, my colleagues?

[00:58:30] Speaker 00:
My case is going all day.

[00:58:31] Speaker 00:
But residents in state.

[00:58:33] Speaker 00:
For residents and state, I think that the statute is very clearly silent on that.

[00:58:38] Speaker 00:
There is nothing one way or the other in the statute that either expands Orr Cabin's eligibility for that.

[00:58:45] Speaker 00:
And given that, we would move to the gap-filling abilities of VA, which again, VA has been specifically authorized to create this program in addition to its general authority to implement regulations for the laws it administers.

[00:58:59] Speaker 00:
It explained in both its proposed and final rule the reason that it cabined eligibility to residing in a state.

[00:59:07] Speaker 00:
It thought that it wasn't feasible for itself to provide benefits outside of a state, specifically because of requirements like in-home visits, initial home care assessments, respite care, and that these things would be hard to implement in a consistent manner outside of the state, and that this, when coupled with the

[00:59:27] Speaker 00:
overall lack of demand for veterans outside of a state.

[00:59:30] Speaker 00:
And I realize that Mr. Wray is one example, but I think, as the court knows, there's always somebody on the other side of the threshold.

[00:59:38] Speaker 00:
But that in combination with the infeasibility of performing outside of a state and the relative lack of demand, that it was reasonable for them to determine to cabin the eligibility to those residing in a state, and that this was a reasonable exercise of its gap-filling powers, given that the statute did not speak one way or another on the topic.

[00:59:58] Speaker 00:
If Your Honors have no more questions, thank you for your time.

[01:00:08] Speaker 05:
Mr. Lee will restore your rebuttal time.

[01:00:11] Speaker 01:
Thank you, Your Honor.

[01:00:15] Speaker 01:
I just have two quick points to raise.

[01:00:17] Speaker 01:
For the pro-veteran canon and the personal care, what personal care means in the term personal care services.

[01:00:26] Speaker 01:
And so for the pro-veteran canon, we argued that it should apply in step one of Chevron in our grade reads.

[01:00:33] Speaker 01:
There was some intervening, concurring opinions from this court after we filed our blue brief, which raised the question of whether it was applicable to Chevron Step 1 or Chevron Step 2.

[01:00:44] Speaker 01:
And so we do not believe that we waived any argument that it would apply in Chevron Step 1.

[01:00:49] Speaker 01:
For the personal care services term, the personal and personal care services refers to that the

[01:00:57] Speaker 01:
It does not require that the personal care services be performed in person.

[01:01:01] Speaker 01:
It means that the help is personal to the veteran, and it's not public or professional help to the veteran.

[01:01:07] Speaker 01:
And personal is about what the veteran needs, not what the veteran receives.

[01:01:15] Speaker 01:
So the personal in the personal care services refers to the veteran, not the caregiver.

[01:01:21] Speaker 02:
It aren't all care services personal to the veteran?

[01:01:27] Speaker 02:
I guess I don't understand.

[01:01:28] Speaker 02:
What's the distinction you're making?

[01:01:32] Speaker 01:
There could be public services for the veteran in a hospital or other care services that are not personal to the veteran.

[01:01:40] Speaker 01:
And so the word personal, if you look at it in context of the statute, means that the veteran requires assistance with ADLs, the veteran needs supervision or protection, or the veteran needs regular or extensive instruction.

[01:01:55] Speaker 01:
And if there are no further questions, petitioners, for the reasons stated in petitioner's briefing, petitioners urge the court to set aside VA's improper requirements to the caregiver program.

[01:02:05] Speaker 01:
Thank you, Your Honors.

[01:02:06] Speaker 05:
Okay.

[01:02:06] Speaker 05:
Thanks, North Council.

[01:02:07] Speaker 05:
This case is taken under submission.