[00:00:00] Speaker 03: 2317 Wolf versus McDonough, Mr. Hoffman, whenever you're ready. [00:00:10] Speaker 01: May it please the court. [00:00:13] Speaker 01: The veteran, Ronnie Wolf, was fraudulently induced into a divorce from a person he was never married to. [00:00:19] Speaker 01: He died a few months later. [00:00:21] Speaker 01: That divorce prevented his wife of 10 years, Luanne Wolf, from being recognized as his eligible spouse. [00:00:28] Speaker 01: The fraud was proven in an Oklahoma court, but a few months after the board's decision. [00:00:34] Speaker 01: The VA and the Veterans Court know that Mrs. Wolf was entitled to benefits five years before VA started paying them. [00:00:41] Speaker 01: But because of the fraud, Mrs. Wolf lost $60,000 in benefits she is entitled to. [00:00:46] Speaker 03: Just to be going forward though, after that period, she is collecting her benefits now, right? [00:00:53] Speaker 01: Yes, Your Honor. [00:00:54] Speaker 01: We're talking about a gap of five years. [00:00:56] Speaker 01: But once the fraud was proven, she did move to reopen her claim. [00:01:00] Speaker 01: And the date that she moved to reopen her claim, she did start receiving benefits. [00:01:05] Speaker 00: Did Rhonda Matthews receive payment social? [00:01:11] Speaker 01: Not that I've ever seen, Your Honor. [00:01:14] Speaker 01: And I do have Mr. James Ronnie Wolf's full record. [00:01:19] Speaker 01: And I've never seen any evidence that she's been paid any VA benefits. [00:01:23] Speaker 01: OK. [00:01:25] Speaker 01: The VA and the Veterans Court know the board's denial was based on fraud. [00:01:30] Speaker 01: And this is about whether a fraud against a veteran and his wife should allow the VA to continue denying benefits that the claimant is statutorily entitled to. [00:01:40] Speaker 01: The VA and the Veterans Court both misinterpreted the board's rules on reconsideration so that the board can only reconsider grants based on fraud, but not denials. [00:01:50] Speaker 01: And that is arbitrary and capricious. [00:01:53] Speaker 01: The VA made two choices. [00:01:54] Speaker 02: First. [00:01:55] Speaker 02: As I understand it, I think at least one of your main arguments is that the agency's implementation of the statute and its regulation is arbitrary because it allows for correction of fraud where the veteran, I guess the board relied on fraudulent material submitted by the veteran in order to grant [00:02:24] Speaker 02: Is that right? [00:02:25] Speaker 02: And you say that there should be a likewise provision for the denial of benefits. [00:02:30] Speaker 02: Otherwise, the agency's regulation is arbitrary. [00:02:34] Speaker 02: Is that your main position? [00:02:38] Speaker 01: Yes, Your Honor. [00:02:39] Speaker 01: And the reason it's arbitrary is because of the two choices. [00:02:42] Speaker 01: First choice was that the board or the VA, excuse me, decided they're going to reconsider some decisions that are based on fraud. [00:02:52] Speaker 01: But then they made a second choice. [00:02:54] Speaker 01: And that second choice was that, and this is what they can't provide a rational explanation for, is that they chose to reconsider only grants, but not denials. [00:03:03] Speaker 01: And they can't provide a rational explanation for that because the only explanation for making that choice was to win against otherwise entitled veterans that Congress intended to be paid benefits. [00:03:14] Speaker 03: Well, Mr. Hoffman. [00:03:18] Speaker 03: Go ahead. [00:03:18] Speaker 03: Sorry. [00:03:19] Speaker 03: Go ahead. [00:03:21] Speaker 03: Oh, no, no, you go ahead. [00:03:22] Speaker 03: Okay. [00:03:23] Speaker 03: I guess even if there were arguably a need for symmetry here, if that's the appropriate word, she gets caught if the government, you get reconsideration if there's been fraud on her part against the government and your argument for symmetry. [00:03:44] Speaker 03: should be, wouldn't that be that if the government commits fraud against her, then she would be entitled to benefits? [00:03:53] Speaker 03: And while that's not provided for in the regulation, that would be covered arguably under due process or Cushman or that sort of thing too. [00:04:03] Speaker 03: So it seems to me there is some symmetry in the system. [00:04:06] Speaker 03: It's just not the kind of symmetry you would want, which starts implicating fraud by third party. [00:04:14] Speaker 03: So am I understanding it correctly? [00:04:17] Speaker 01: Yes, Your Honor. [00:04:18] Speaker 01: I would go a little further and say it's not symmetry that's so important. [00:04:24] Speaker 01: It's that Congress wants the VA to fix any of its decisions based on fraud, third party or not. [00:04:30] Speaker 01: And you can see that there's a lot of statutes that Congress says, fix fraud, fix grants of fraud. [00:04:37] Speaker 01: They and you're right, it would be under due process. [00:04:40] Speaker 01: And if it was a VA employee that committed fraud against Mrs. Wolf that caused her board denial, she would have been able to get under Rule 904, which is now Rule 1000. [00:04:50] Speaker 01: They would have vacated her board decision for VA fraud. [00:04:53] Speaker 03: Right. [00:04:54] Speaker 03: So the circumstance we're talking about here for your argument that it's arbitrary involves the government then having to go out and investigate allegations of fraud by the claimant involving third parties. [00:05:15] Speaker 03: And that, in my experience, significantly expands the scope [00:05:21] Speaker 03: of where the government would need to go in terms of adjudicating these benefits, right? [00:05:28] Speaker 03: I mean, you seem like my concern here. [00:05:31] Speaker 01: I see your concern, Your Honor. [00:05:32] Speaker 01: Actually, the government doesn't have to do anything more than it already does. [00:05:36] Speaker 01: 38 USC 5107 says it is the claimant's responsibility to present and substantiate their claim. [00:05:43] Speaker 01: If the claimant's going to allege fraud, the claimant better be ready to prove that to the board. [00:05:48] Speaker 01: And also the VA is already dealing. [00:05:51] Speaker 03: In this case, it seems more straightforward than most. [00:05:55] Speaker 03: But you're right, she has the bet. [00:05:58] Speaker 03: But in your view, in this pro-claiming system, wouldn't the government have to, I don't know how it would adjudicate claims of fraud dealing with third parties that it has no jurisdiction over or no authority over? [00:06:14] Speaker 03: This case happens, I think to me, maybe an unusual case where you've got a paper record. [00:06:22] Speaker 01: Yes, your honor. [00:06:23] Speaker 01: Now, in this case, it's a little different because the VA has already recognized that it was fraud and granted her benefits once they saw the fraudulent evidence, just not the five years that she's missing. [00:06:33] Speaker 01: The VA already has a system in which it deals with entities outside of itself and outside of the claimant. [00:06:41] Speaker 01: There's a whole system for claims that are contested. [00:06:45] Speaker 01: For instance, it's not terribly uncommon [00:06:49] Speaker 01: where a veteran passes away and we find out that he or she has three or four spouses. [00:06:56] Speaker 01: It's not uncommon that someone has to prove that they are the child of a veteran. [00:07:01] Speaker 01: The VA is equipped to do this and while there's no doubt it can be a little bit more difficult than you're straight up, hey, this person is married, no fraud involved, you know, Congress didn't limit [00:07:15] Speaker 01: the VA's inquiries into things by just how hard it is. [00:07:19] Speaker 01: There are, of course, limitations based on efficiency. [00:07:22] Speaker 01: But here, they're not going to have to do too much. [00:07:26] Speaker 01: They don't even have to go get private records that would prove the fraud unless the claimant told the VA, this is where you can get the records. [00:07:33] Speaker 01: Even the duty to assist is only going to apply if the claimant does their part to present and substantiate the claim under 38 USC 5107. [00:07:45] Speaker 01: Furthermore, the VA has also had situations. [00:07:49] Speaker 01: Congress has already had the VA. [00:07:51] Speaker 03: At that point, I actually hadn't even considered it. [00:07:54] Speaker 03: So if we said you were correct and fraud by third party was something the government had to recognize, then in connection with the petitioner pursuing that claim, an argument, an allegation that someone committed fraud that precluded he or she from getting the benefits, [00:08:14] Speaker 03: the government would have to assist the claimant in that pursuit? [00:08:21] Speaker 01: I think if the... I do think that if they made it during the original claim, I'm not so sure if that would happen, if the duty to assist would attach, for instance, in a motion for reconsideration, which is [00:08:35] Speaker 01: You can recognize a motion for reconsideration as something that it's really on the claimant to prove to the court or to the board why they need to reconsider. [00:08:43] Speaker 00: What if the motion could be granted under one subsection, but not upon the subsection that the motion claims as the basis? [00:08:57] Speaker 01: Are you referring to the dissent, Your Honor? [00:09:01] Speaker 00: Yes. [00:09:02] Speaker 01: So, I think if, because veterans are not required to plead too specifically, and that would be, I mean, Mrs. Wolf isn't going to know the difference between Section 904 and Section 1000. [00:09:15] Speaker 01: There's no way. [00:09:17] Speaker 01: There is, I think that the board should go with whatever section is the most favorable for the veteran. [00:09:23] Speaker 01: However, in this case, and I love what the dissent said, the dissent recognizes this is reprehensible, the dissent says that the VA has to fix this somehow, however, [00:09:32] Speaker 01: Section 904, its fraud provision is also only for grants of benefits. [00:09:36] Speaker 01: And due process, we have a problem because it's a third party. [00:09:41] Speaker 01: The third party can't really violate Ms. [00:09:43] Speaker 01: Wolf's due process rights. [00:09:46] Speaker 03: Well, I agree with that, Mr. Kevil. [00:09:48] Speaker 03: But I think, and this may be part of what Judge Rainer's inquiry was about, subsection A talks about upon allegation of obvious error of fact or law. [00:10:00] Speaker 03: I mean, I know this wasn't pressed as a basis, but it seems like maybe it should have been. [00:10:09] Speaker 03: I mean, that this provision is the one that might take care of the egregious cases where at some point, this doesn't have a time limit. [00:10:19] Speaker 03: So if it becomes clear, [00:10:22] Speaker 03: and enough time to file for reconsideration that there has been an obvious error or fact in law, it seems like subsection A would be the one to run the truck through. [00:10:35] Speaker 03: And I know that wasn't raised here, but why am I wrong about that? [00:10:43] Speaker 01: Subsection A, Your Honor, the way, and it's hard to tell because there's just very little case law on this, but subsection A, the way VA interprets it is to be more like a cue claim. [00:10:52] Speaker 01: Now, there are regulations that say you can't treat a motion for reconsideration like a cue claim, but they're only talking about procedurally. [00:10:59] Speaker 00: Ultimately, subsection A... But that is not a cue claim. [00:11:04] Speaker 00: It just says upon the allegation of obvious error in fact of law. [00:11:09] Speaker 00: And the standard of proof on a cue claim is much more rigorous [00:11:13] Speaker 00: I'm wondering if you file a motion under C, and the VA is looking at this, and they're looking at not an allowance, but they go, there's a denial here, and there's obviously, you know, something very wrong has occurred here. [00:11:27] Speaker 00: We have this state finding of fraud, and we ourselves have already decided that she was qualified all along. [00:11:35] Speaker 00: And why should not the VA say, we're going to go ahead and review this under A? [00:11:43] Speaker 01: If they're going to interpret that regulation how it's written, Your Honor, I would agree with you. [00:11:49] Speaker 01: I think that they should reconsider it under A also, and I believe... Well, that presents a problem. [00:11:54] Speaker 03: Counsel does it not that she was represented and this was never pressed or raised below. [00:12:01] Speaker 03: So don't you think that under these, I mean, you press C valiantly, you know, you've done a good job making whatever argument you could come up with, but is it up to the government? [00:12:14] Speaker 03: I mean, you're the one that pressed the claim even for, you know, is it up to the government to come up with different provisions in order you allow it when you haven't made that argument? [00:12:25] Speaker 01: No, Your Honor, she did not file under A, B, or C. She just filed a motion for reconsideration. [00:12:31] Speaker 01: The argument A, the reason I've chosen not to present it under A, is because the VA does treat it like a Q claim, and its authority for it is under Q. Now, should it be treated like a Q claim? [00:12:44] Speaker 01: We didn't argue that it shouldn't be. [00:12:46] Speaker 01: But they are in their records. [00:12:49] Speaker 01: They've talked about not reviewing records after the board decision. [00:12:54] Speaker 01: It's supposed to be not over plowed ground. [00:12:57] Speaker 01: And that is why we chose. [00:13:01] Speaker 03: How can it not involve records where it says an allegation of an obvious error of fact? [00:13:08] Speaker 03: How would that not implicate records? [00:13:12] Speaker 03: So. [00:13:16] Speaker 01: Because, Your Honor, it wouldn't be an obvious error of fact if the record stops at the day they made the board decision. [00:13:23] Speaker 03: I know we're a role reversal here, right? [00:13:26] Speaker 03: You're making arguments in favor of the government, so maybe I ought to allow that. [00:13:31] Speaker 03: But I do think that I didn't see this argument raised. [00:13:37] Speaker 03: It hasn't been teased out. [00:13:38] Speaker 03: The government hasn't had a chance, I guess, to give its position at all, as far as I can tell. [00:13:45] Speaker 03: Am I right about that? [00:13:48] Speaker 00: Yes, Your Honor. [00:13:50] Speaker 00: Okay, so then my next question to you is, would you say that this argument has been forfeited? [00:13:56] Speaker 00: Can she go back down and just raise it on A? [00:14:01] Speaker 01: No, Your Honor. [00:14:02] Speaker 01: She raised just the motion for reconsideration. [00:14:06] Speaker 01: She... I don't think it should be forfeited. [00:14:09] Speaker 01: I'm going to point... Justice Scalia at one point said that an argument not made [00:14:15] Speaker 01: by an appellant doesn't mean that the argument is necessarily waived. [00:14:18] Speaker 01: That is the court's discretion. [00:14:21] Speaker 00: OK, but there's a difference between waiver and forfeiture. [00:14:25] Speaker 00: And a waiver is where you have an intentional abandonment, or there's intent involved to not move forward a claim. [00:14:38] Speaker 00: Whereas with a forfeiture, we don't have that. [00:14:42] Speaker 00: But anyway, it just seems to me that A would have been a way to proceed on this particular claim and maybe even succeed at it. [00:14:53] Speaker 00: And I'm amazed that A was not relied on and that you don't make that argument. [00:15:02] Speaker 00: And to be quite frank, I'm trying to [00:15:05] Speaker 00: to see here if maybe A is still available in order to correct what's clearly an obvious error of factual law. [00:15:15] Speaker 00: I mean, those are the words. [00:15:17] Speaker 00: It doesn't say Q. You know, I'm dubious whether A is premised on a Q standard of proof, which is pretty rigorous. [00:15:34] Speaker 03: Well, could I just follow up on Judge Raina's question? [00:15:37] Speaker 03: I'm not sure you gave us or him any clarification as to why there... Is there a mechanism in which he could raise it at this point? [00:15:47] Speaker 03: Can she amend her request for reconsideration or is this just, you know, the horse left the barn and there's nothing she can do to clarify or to amend the current filings? [00:16:01] Speaker 03: to include and compel at least an adjudication of that. [00:16:07] Speaker 03: Obviously, it would have to go back to the board and the CABC for them to resolve that. [00:16:12] Speaker 03: But are you clear? [00:16:13] Speaker 03: You presumably know the procedures better than I. Are you clear that there's no way that she can amend or change the pending motion to bring that in? [00:16:25] Speaker 01: Her motion, Your Honor, never specified A, B, or C. And I'm going to, I will, just real quick, I'm going to read from the appendix, page 32, about what the Board said about A. You have alleged, in essence, that the Board decision contains an obvious error factor law. [00:16:40] Speaker 01: Obvious, parentheses, or clear and mistaken error is a very specific and rare kind of error. [00:16:45] Speaker 01: That's how the VA treats A, as if it's Q. They go forward and talk about C, [00:16:51] Speaker 01: And they ended up denying... I'm sorry. [00:16:53] Speaker 03: I'm going to follow what you're saying. [00:16:54] Speaker 03: And I just found Appendix 32. [00:16:57] Speaker 03: So can you tell us where on the page you're reading from? [00:17:01] Speaker 01: Yes. [00:17:02] Speaker 01: Third paragraph down. [00:17:03] Speaker 01: So last paragraph on page 32. [00:17:05] Speaker 01: Uh-huh. [00:17:07] Speaker 01: And they go on and I'm starting with... I'm just going to start at the beginning. [00:17:10] Speaker 01: The chairman will order reconsideration on the ground of obvious error of factor law. [00:17:16] Speaker 01: Only when it's shown that the board committed an error in its decision, which, if corrected, would change the outcome of the appeal. [00:17:21] Speaker 01: Obvious, and then in parentheses, or clear and unmistakable error, is it very specific? [00:17:24] Speaker 01: And from that point, they talk about clear and unmistakable error and the rules behind clear and unmistakable error. [00:17:29] Speaker 03: But I don't understand, I mean, even if that, even assuming that, why this wouldn't satisfy clear and unmistakable error? [00:17:39] Speaker 03: A lot of allegations of fraud by third parties might not, but here you've got legal documentation. [00:17:47] Speaker 03: So where it says the alleged errors must be described with specificity and persuasive reasons must be given as to why the result would have been manifestly different from the alleged error. [00:17:59] Speaker 03: I don't see why that's such a huge hurdle for you necessarily. [00:18:02] Speaker 03: I'm not doing fact finding here on appeal. [00:18:04] Speaker 03: I'm just making the observation. [00:18:06] Speaker 01: Yeah, because the records of the fraud came after the board's decision. [00:18:11] Speaker 01: And so they wouldn't be considered when they were deciding if there was an obvious error. [00:18:16] Speaker 01: That's her problem. [00:18:17] Speaker 01: If pro records were in the record at the time the board made the decision, if the proof of fraud was there, then I think we would be arguing this under Rule 1000A and Rule 1000C. [00:18:30] Speaker 01: But since the records weren't there, [00:18:33] Speaker 00: If that's the case, then why can't you refile for reconsideration on the basis of newly found evidence? [00:18:41] Speaker 01: Because newly found evidence has to be serviced to partner records, Your Honor, under B. And Q doesn't allow newly found service or newly found records whatsoever, so 1000A wouldn't work in that regard, and 1000B can't work because these aren't service records. [00:18:56] Speaker 01: This is an Oklahoma State Divorce Decree and Marriage License. [00:19:01] Speaker 02: There's a separate regulation relating to Q, right? [00:19:10] Speaker 01: Yes, there is. [00:19:11] Speaker 01: There's several. [00:19:13] Speaker 02: Okay, right. [00:19:15] Speaker 02: So, and so your view is that the Statute 7103, the title of it is Reconsideration Semicolon Correction of Obvious Errors, and your position is that the agency [00:19:27] Speaker 02: when it talks about obvious errors in the regulation, they have acquitted that to Q. What other cases do you have to support that? [00:19:34] Speaker 02: Any? [00:19:35] Speaker 02: Or is it just what they said in this particular decision? [00:19:40] Speaker 01: Let me look real quick, Your Honor. [00:19:47] Speaker 01: I think the case would be Cerullo v. Derwinsky, one vet app, 195. [00:19:55] Speaker 01: Actually, it might be a lot of these, and it might just be that they were discussing it, and I'd have to go through the cases, and I'd be happy to look at them and submit an answer later if you'd like, rather than start piling through these. [00:20:09] Speaker 02: I'm just trying to understand the position. [00:20:12] Speaker 02: So you're saying that before the Veterans Court section and before the board, that Section A was argued, [00:20:23] Speaker 02: but that it wasn't argued on appeal because of your understanding that it only allowed for Q, and you didn't think Q was satisfied here. [00:20:35] Speaker 02: Do I understand that correctly? [00:20:37] Speaker 01: Yes, Your Honor, there's that. [00:20:38] Speaker 01: And I also believe that the 7103 [00:20:44] Speaker 01: has to and rule 1000 has to consider all types of fraud. [00:20:48] Speaker 01: I don't think that there's a rational explanation for it to consider one type of fraud but not the other when you're giving up nothing by considering denials due to fraud. [00:20:57] Speaker 01: The VA would still protect the public this better present a picture of like. [00:21:02] Speaker 03: This is Judge Prost. [00:21:04] Speaker 03: Just going back to the point about the reasons that it wasn't raised and what it was, I mean, you could have challenged, you should have challenged the VA's interpretation of A [00:21:17] Speaker 03: Rather than here, you are challenging. [00:21:19] Speaker 03: You're challenging the regs here. [00:21:22] Speaker 03: So it wasn't like you were shy, as you should not be, as the good advocate you are, to challenge what the VA did. [00:21:30] Speaker 03: So the same would have applied for the opportunity if you disagree, if you're correct. [00:21:37] Speaker 03: There's a Q standard, and it's too high a standard. [00:21:43] Speaker 03: That could have been challenged just as you're making the challenge under C, right? [00:21:50] Speaker 01: Yes, Your Honor. [00:21:51] Speaker 01: But I will say, like, A makes a lot of sense drafted and interpreted as Q, in part because there are times Congress told the VA that it wants to consider and reconsider its decisions. [00:22:06] Speaker 01: And it talks about relief from VA administrative errors under 38 USC 503. [00:22:10] Speaker 01: It talks about Q in 38 USC 7111, 5109. [00:22:15] Speaker 01: A, it talks about reconsideration in 7103. [00:22:19] Speaker 01: And then there's the new material service records. [00:22:22] Speaker 01: And that's a lot of what Rule 1000 does. [00:22:24] Speaker 01: Rule 1000 compiles what Congress has already made clear. [00:22:27] Speaker 01: And Congress has never really asked for the VA to just look at new records that aren't from the service. [00:22:33] Speaker 00: The question was this. [00:22:34] Speaker 00: You were reading, counselor, different parts of the regulation and all where Q is referenced. [00:22:43] Speaker 00: But I don't see Q referenced here under A. It doesn't say that. [00:22:49] Speaker 00: It doesn't even say proof. [00:22:50] Speaker 00: It says upon allegation of obvious error of fact and law. [00:22:55] Speaker 00: And throughout VA law, Q is one of the most rigorous standards that we deal with. [00:23:07] Speaker 01: I agree, Your Honor. [00:23:09] Speaker 01: And I don't know if you heard what I was pointing out was these provisions [00:23:13] Speaker 01: in rule 1000, they're not just made up by the VA. [00:23:18] Speaker 01: They come from what they have gleaned as Congress's intent. [00:23:23] Speaker 01: And the obvious error, if you look at it as Q, they're... Okay, I understand all that. [00:23:29] Speaker 00: Let me ask you a question. [00:23:31] Speaker 00: In your view, what's the track that switched the path available to your client to [00:23:39] Speaker 00: to get consideration under 20.1001A? [00:23:50] Speaker 01: I think that the Veterans Court would have to hold that the board has misinterpreted Rule 1000 [00:24:01] Speaker 01: So that A is not about Q claims, but a veteran can just submit whatever evidence that doesn't fit under B and C, and the board has to reconsider. [00:24:14] Speaker 01: I don't know how else it would be. [00:24:20] Speaker 01: It would have to be all evidence. [00:24:21] Speaker 01: And if we do that, then I don't know what the point of a new and material evidence claim would be. [00:24:26] Speaker 01: There is a point where the claimant's responsibility [00:24:30] Speaker 01: has to come in. [00:24:31] Speaker 01: And part of that point is going to be a Q claim. [00:24:35] Speaker 01: There's a reason why you can't just submit new evidence. [00:24:37] Speaker 01: Now, it's favorable. [00:24:39] Speaker 01: You submit new evidence that no one's seen. [00:24:40] Speaker 01: You get to reopen your claim. [00:24:42] Speaker 01: And that's great. [00:24:43] Speaker 01: But you don't get the benefit of an earlier effective date. [00:24:46] Speaker 00: I understand that. [00:24:47] Speaker 00: Counselor, arguing in favor of application of Q, I don't think that helps you. [00:24:54] Speaker 00: It doesn't, Your Honor. [00:24:56] Speaker 00: No. [00:24:57] Speaker 00: No, it doesn't. [00:24:58] Speaker 00: So I'm seeking a way out. [00:25:00] Speaker 00: And why am I doing this? [00:25:02] Speaker 00: I mean, because I see basically here an injustice that's contrary to VA law as a whole. [00:25:10] Speaker 00: I mean, she was entitled to these benefits. [00:25:13] Speaker 00: There's been a fraud perpetrated. [00:25:15] Speaker 00: There's an obvious error of fact here. [00:25:20] Speaker 00: And it's obvious because a court of law has rendered an opinion that sets out the fraud. [00:25:29] Speaker 00: How do you get back in? [00:25:34] Speaker 01: And by back end, you mean arguing? [00:25:36] Speaker 00: How do you get? [00:25:39] Speaker 01: Yes. [00:25:41] Speaker 01: That the veteran system is so friendly that it will you can just submit evidence after your board decision and then the board has to reconsider it. [00:25:50] Speaker 01: I mean. [00:25:50] Speaker 01: Maybe there's some level of evidence, but those levels of evidence I think are found in B and C, but [00:25:58] Speaker 01: your interpretation of A would be any evidence that proves an obvious error in factor law, which is what new and material claims do also. [00:26:10] Speaker 01: If we could go back on earlier effective dates with new and material claims, I'd be quite happy also. [00:26:19] Speaker 01: And I mean, that would have to be what it is, all evidence that proves that the board's decision was wrong, obviously. [00:26:26] Speaker 01: can be used to get an earlier effective date and have the board reconsider its claim or its decision. [00:26:32] Speaker 01: But I don't think we need to go there because we have fraudulent evidence that influences its decision. [00:26:39] Speaker 03: We're back full circle to your argument and actually you've been pretty persuasive at least speaking for myself on the problems with subsection A. So we're left with C and again [00:26:53] Speaker 03: I just think it would be a pretty onerous burden on the government. [00:27:00] Speaker 03: I'm still not seeing the symmetry. [00:27:02] Speaker 03: So if you want to say one thing about that, if the government had committed fraud on her, which just allows the benefits, she'd clearly have a right to have that re-adjudicated and adjudicated, right? [00:27:14] Speaker 03: So you're just in a circumstance where there's some allegation of [00:27:20] Speaker 03: third-party fraud, like, you know, my neighbor stole my records and this record was included in that or something like that, right? [00:27:31] Speaker 03: I mean, the government would have to get involved in a much larger universe than it does presently or under any other circumstance. [00:27:42] Speaker 01: I don't think it would have to get to a much larger universe. [00:27:46] Speaker 01: I think it's already in that universe when it's dealing with contested claims. [00:27:50] Speaker 01: It's already in the universe of dealing with third party, not always malfeasance, but when it will reconsider based on new DOD records. [00:27:59] Speaker 01: And I want to turn real quick, and I am way over time, but just real quick, this court had a decision come out last week about a third party that caused someone to lose decades of benefits [00:28:10] Speaker 01: And that was in Taylor. [00:28:12] Speaker 01: And Taylor was just, it was just published, I think. [00:28:15] Speaker 01: Tuesday or Wednesday last week, and we just read it two days ago. [00:28:20] Speaker 01: Congress and Taylor, the court held that when Congress authorized payment to a veteran and the claimant is only asking for what Congress authorized, this is Mrs. Wolf in both instances, and the claimant could not get those authorized funds because of a third party, also Mrs. Wolf, and the impediment to receiving the funds was not the VA, also Mrs. Wolf, then the Veterans Court should equitably have stopped the VA from denying a veteran an early effective date. [00:28:43] Speaker 01: necessarily asking for equitable stopple. [00:28:44] Speaker 01: However, I would say that if the court doesn't agree with our arguments about statutory interpretation or regulatory interpretation, equitable stopple, the case should still be remanded to the Veterans Court to determine whether equitable stopple under Taylor is warranted. [00:28:58] Speaker 01: But the Taylor Court's reasoning is exactly the same as Mrs. Wolf's reasoning. [00:29:01] Speaker 01: This is someone Congress wants to... [00:29:04] Speaker 03: Yeah, we are very familiar with the Taylor case. [00:29:07] Speaker 03: So I appreciate that. [00:29:08] Speaker 03: But we're way beyond our time. [00:29:09] Speaker 03: So why don't we turn to the takers and we'll reserve some of your rebuttals. [00:29:14] Speaker 03: All right. [00:29:14] Speaker 04: Thank you. [00:29:17] Speaker 04: Thank you, Your Honor. [00:29:18] Speaker 04: And may it please the court. [00:29:20] Speaker 04: I'll start with the court's inquiry as to subsection A. And I do agree with Mr. Hoffman that that's not applicable here. [00:29:28] Speaker 04: As an initial matter, we believe that Ms. [00:29:31] Speaker 04: Wolf has waived [00:29:32] Speaker 04: intentionally abandoned this claim, and I would point, Your Honors, to page 14 of the reply brief, which says that. [00:29:40] Speaker 04: Second, I think to remedy the Court's concerns, the Board did address subsection A and... Has the filing, Counselor, has the filing originally been made under section A? [00:29:52] Speaker 00: Would this have gone forward? [00:29:54] Speaker 00: Or are you saying that A does not apply because it was waived or forfeited rather? [00:30:00] Speaker 04: The waiver argument, Your Honor, is to this Court's review of whether the Board or the Veterans Court erred by not allowing reconsideration under A. And to Your Honor's other point, our argument here is that subsection A does not apply to Ms. [00:30:17] Speaker 04: Wolf's circumstances. [00:30:19] Speaker 04: And the reason for that is because the challenge [00:30:23] Speaker 04: here by Ms. [00:30:24] Speaker 04: Wolf is to the May 2014 determination. [00:30:28] Speaker 04: There was no error of fact or law in that determination. [00:30:33] Speaker 04: As Mr. Hoffman noted, the vacatur of the divorce decree came after that decision. [00:30:40] Speaker 04: And so the facts that were before the board at the time, the probative evidence showed that the veteran was married [00:30:52] Speaker 04: to Mrs. Matthews, and so there was no error to be remedied in that case. [00:30:58] Speaker 00: On the basis of the subsequent evidence, could she go back and refile for reconsideration and say this evidence of obvious error, a fact, has come out since we were last here? [00:31:16] Speaker 04: Yes, Your Honor, Ms. [00:31:17] Speaker 04: Wolfe can file another request for reconsideration. [00:31:21] Speaker 04: She can also file a motion to vacate or for a queue. [00:31:26] Speaker 04: Those remedies are still available to her today. [00:31:29] Speaker 02: Okay. [00:31:30] Speaker 02: Wait, I have a question for you, Counsel. [00:31:33] Speaker 02: I think my question probably piggybacks onto Jodrina's question, which is, [00:31:39] Speaker 02: I understood you to be saying that 20.1001A is limited to an obvious or a fact based on what evidence was in the record at the time of the board's original decision. [00:31:54] Speaker 02: And then it can't be based on new evidence. [00:31:56] Speaker 02: That's what I hear you to be saying. [00:31:58] Speaker 02: Am I understanding you correctly? [00:32:01] Speaker 04: That's correct, Your Honor. [00:32:03] Speaker 02: And what is your basis for saying that? [00:32:06] Speaker 04: This dates back to a case called Hazan v. Gober. [00:32:11] Speaker 04: It's 10 VetApp 511 from 1997. [00:32:16] Speaker 04: There could be previous cases. [00:32:19] Speaker 04: That's the oldest one that I'm aware of, which links the obvious error standard to the Q standard and says that there's no obvious error on the part of the board unless the evidence at the time [00:32:34] Speaker 04: considered by the board shows an obvious error. [00:32:37] Speaker 04: So we are limited to the evidence that existed at the time. [00:32:40] Speaker 04: And I would just point out as a practical matter, Your Honors, if the obvious error standard were to allow new evidence, then reconsideration would be no different than the reopening of the case, right? [00:32:56] Speaker 04: Subsection A looks at the time that the board [00:32:59] Speaker 04: made its determination and whether that determination had an obvious error of factor law based on the time. [00:33:06] Speaker 04: And I would know also, Your Honors, that Ms. [00:33:08] Speaker 04: Wolf did file a motion and reopen her case. [00:33:12] Speaker 04: The veteran or the VA granted her benefits once she demonstrated her eligibility to them after she filed a motion to reopen. [00:33:22] Speaker 04: And the most important part here, I believe, goes to Judge Prost's last question to Mr. Hoffman. [00:33:29] Speaker 04: is that I understand the panel's interest in finding where the remedy lies for Ms. [00:33:35] Speaker 04: Wolf, but this appeal is not an appeal about the effective date. [00:33:41] Speaker 04: Ms. [00:33:41] Speaker 04: Wolf did not appeal the VA's determination on her proper effective date. [00:33:46] Speaker 04: This appeal is merely whether VA's reconsideration regulations are unlawful. [00:33:53] Speaker 04: And so Mr. Hoffman and Ms. [00:33:55] Speaker 04: Wolf have argued that Congress [00:33:58] Speaker 04: intended for the reconsideration regulations to have included her circumstance, the denial of fraud. [00:34:06] Speaker 04: But the statute 7103 does not dictate when or how or under what circumstances the chairman may order reconsideration. [00:34:15] Speaker 04: It's silent. [00:34:16] Speaker 04: The statute leaves the discretion to the VA to enact reasonable regulations. [00:34:22] Speaker 04: And that's what the VA did here. [00:34:24] Speaker 04: The VA's reconsideration regulations are consistent with what Congress had previously enumerated as grounds for reconsideration, and the VA's addition of subsection C is consistent with the numerous statutes that Ms. [00:34:39] Speaker 04: Wolf cites that address fraud in the grant of benefits. [00:34:44] Speaker 04: Ms. [00:34:45] Speaker 04: Wolf has not cited any statute or any congressional intent or indication that the VA should have also [00:34:53] Speaker 04: promulgated a regulation going to the denial of benefits based in fraud. [00:34:58] Speaker 00: Isn't that the purpose of A? [00:35:07] Speaker 04: Of subsection A in the regulation journal? [00:35:10] Speaker 00: Yes. [00:35:16] Speaker 04: I'm not sure I understand Your Honor's question. [00:35:18] Speaker 00: Well, it covers the gap that you were saying. [00:35:21] Speaker 00: If you look at C, it only deals with an allegation in terms of an allowance of benefits, but not whether there's been a determination of denial. [00:35:31] Speaker 00: Why wouldn't A cover that? [00:35:34] Speaker 04: A could cover that, Your Honor. [00:35:36] Speaker 04: I could imagine a situation in which it does. [00:35:40] Speaker 04: It doesn't here because the fraud was not known at the time. [00:35:45] Speaker 03: But where you started, I think you were, I thought you were suggesting, but I wasn't clear at the outset that she has alternatives that she might pursue in order to recover this $60,000 interim benefit. [00:36:03] Speaker 03: Is that what you were saying? [00:36:04] Speaker 03: And if so, can you clarify that for me? [00:36:10] Speaker 04: Sure, Your Honor. [00:36:11] Speaker 04: I'm not representing that Ms. [00:36:13] Speaker 04: Wolf would, in fact, be entitled to the amount that she's seeking. [00:36:17] Speaker 04: I'm merely pointing out that she does have available remedies still. [00:36:21] Speaker 04: She can file another motion for reconsideration. [00:36:24] Speaker 04: She can file a motion to vacate, and she can assert Q. And so whether Ms. [00:36:32] Speaker 04: Wolf can establish entitlement under all of those is for the VA to determine in the first instance. [00:36:38] Speaker 04: But for the court's purpose in this case, Ms. [00:36:41] Speaker 04: Wolf has not shown that the regulations are inconsistent with the statute or she has not shown that Congress intended or required or mandated the VA to promulgate a regulation that covers her particular circumstance. [00:37:00] Speaker 02: Counsel, you said that she could file a motion for reconsideration. [00:37:04] Speaker 02: You're talking about this. [00:37:06] Speaker 02: same statutory provision, regulatory provision that we're talking about today, right? [00:37:11] Speaker 02: Or is there something different? [00:37:14] Speaker 04: The same one, Your Honor. [00:37:16] Speaker 02: Okay. [00:37:16] Speaker 02: And then when you talk about vacate, you're talking about the provision that was identified by Chief Judge Bartley and her dissent, right? [00:37:24] Speaker 04: That's correct, Your Honor. [00:37:26] Speaker 02: Okay. [00:37:26] Speaker 02: And what about, I just want to ask you more broadly, [00:37:29] Speaker 02: You know, in looking at Congress enacted US 38 USC 7103 and the title of it is Correction of Obvious Errors, is that kind of like analogous to Rule 60 in a district court case, would you say, under, you know, federal rules of civil procedure? [00:37:51] Speaker 04: I don't... I think, Your Honor, perhaps it's... [00:37:58] Speaker 04: somewhat analogous, but certainly the federal rules of civil procedure don't apply to the board proceeding. [00:38:04] Speaker 04: And I think that the important point here is that although the title states obvious errors, Congress did leave the discretion to the VA to determine when and how and under what circumstances to allow reconsideration. [00:38:21] Speaker 04: And so although we can look at the statute, I think Ms. [00:38:25] Speaker 04: Wolf's challenge here [00:38:27] Speaker 04: to the regulations that the regulations don't specifically cover her instance is not solved by the title of 7103. [00:38:36] Speaker 04: As we've explained earlier under subsection A, the obvious error provision for regulation, Ms. [00:38:45] Speaker 04: Wolf simply doesn't meet that subsection and so she's not entitled or eligible for reconsideration under subsection A as an obvious error. [00:38:56] Speaker 02: I understand what you're saying. [00:38:57] Speaker 02: I'm just trying to understand what Congress had in mind. [00:39:01] Speaker 02: I understand your position that Congress was allowing the agency to implement it, but even under Rule 63, which talks about fraud, it says it's fraud, misrepresentation, or misconduct by an opposing party. [00:39:15] Speaker 02: And what do you think of Judge Pro's question about if there is a [00:39:22] Speaker 02: corollary here that was missing in Part C, it would have to be, I guess, fraud by the agency or the government as opposed to fraud by some third party if there was going to be a provision that was analogous to a denial of or a grant of benefits by the board based on fraudulent evidence submitted by the appellant. [00:39:52] Speaker 04: Yes, Your Honor, I think it would certainly be difficult, I believe this was raised earlier, for the VA to enforce any fraud or investigate any fraud by third parties in this instance. [00:40:04] Speaker 04: And it's certainly the claimant's responsibility to put forth evidence that the board erred when it's arguing that reconsideration should be granted. [00:40:13] Speaker 04: I'm not sure what, I guess I would just say that [00:40:19] Speaker 04: Congress left to the VA the discretion. [00:40:23] Speaker 04: And so whether the VA believes a certain symmetry is required or maybe they've thought about it in a different way, that's for the VA to promulgate in its regulations. [00:40:35] Speaker 03: Are you familiar with a case called Cushman? [00:40:39] Speaker 03: Will we find a due process right? [00:40:41] Speaker 03: Weren't the facts in Cushman kind of close to this one? [00:40:45] Speaker 03: In other words, where someone in the VA in terms of record keeping or whatever does something intentionally to mess things up for the complainant, that constitutes a due process problem and therefore that person can seek relief. [00:41:01] Speaker 03: So that's where I do think there's symmetry, even though it may not be in this regulation. [00:41:07] Speaker 03: In other words, if the VA has committed fraud, which precludes the claimant from getting her benefits, do you not agree that there is recourse that can be had? [00:41:19] Speaker 04: Yes, Your Honor. [00:41:22] Speaker 04: Of course there would be recourse if the VA were the one to have committed the fraud. [00:41:27] Speaker 04: That would certainly be a due process question. [00:41:30] Speaker 04: I think that the difference between Cushman in this case is in Cushman there is a presentation [00:41:37] Speaker 04: altered material evidence. [00:41:39] Speaker 04: I believe it was a medical record. [00:41:40] Speaker 03: I think you're misunderstanding, at least, what I'm saying. [00:41:43] Speaker 03: I'm not suggesting that Cushman allows for due process violations committed by third parties. [00:41:50] Speaker 03: And I think even Mr. Hoffman points that out correctly. [00:41:53] Speaker 03: So I didn't suggest that that's what allows fraud to third parties. [00:41:58] Speaker 03: I was suggesting that if the government is the perpetrator of that fraud, rather than a third party, there would be relief to be had by the complainant. [00:42:07] Speaker 04: I agree with that, Your Honor. [00:42:10] Speaker 04: I believe that that would be a due process question, and I believe that VA's regulations would cover that in its 38 CFR, what's now 20.1,000, for a vacatur of a decision, which allows or speaks to the denial of due process if there's an action by the VA. [00:42:32] Speaker 04: And so, yes, I do believe that there would be recourse if there was fraud committed by the VA. [00:42:37] Speaker 04: that led to the denial of benefits. [00:42:46] Speaker 04: And the last point I'll make, Your Honors, is to Ms. [00:42:50] Speaker 04: Wolf's supplemental authority that she filed with the Taylor case. [00:42:56] Speaker 04: I would just note that Taylor is not relevant to the resolution of this appeal. [00:43:00] Speaker 04: There is obviously the material factual distinction between [00:43:04] Speaker 04: this case in Taylor is that in Taylor, it was the government, like we just were talking about, who was the party that caused the claimant to lose decades worth of benefits. [00:43:16] Speaker 04: Here, again, it was the third party. [00:43:18] Speaker 04: And also, equitable estoppel is against the adversary of one. [00:43:25] Speaker 04: Here, again, we're talking about a third party. [00:43:28] Speaker 04: So, Mr. Hoffman's argument, it would not be appropriate to remand to see if equitable estoppel were warranted here. [00:43:34] Speaker 04: because there's been no allegation that the VA was involved in the fraud that was found here. [00:43:40] Speaker 04: If there are no further questions, we ask that the court sustain the Veterans Court's decision. [00:43:44] Speaker 04: Thank you. [00:43:45] Speaker 03: Thank you. [00:43:46] Speaker 04: Mr. Hoffman, rebuttal, please. [00:43:53] Speaker 03: Mr. Hoffman? [00:43:57] Speaker 03: Are you on mute? [00:43:59] Speaker 01: Yes. [00:43:59] Speaker 01: Hello. [00:44:00] Speaker 01: Hello? [00:44:01] Speaker 03: Yes, we can hear you now. [00:44:03] Speaker 01: Okay, sorry about that. [00:44:06] Speaker 01: Your Honor, it's true the statutes never say that a denial due to fraud has to be dealt with. [00:44:13] Speaker 01: The Congress didn't say that explicitly, but they don't need to. [00:44:16] Speaker 01: Because fixing a denial based on fraud takes you right back to the statute. [00:44:20] Speaker 01: And in this case, 38 USC 101, Wolf satisfied it. [00:44:24] Speaker 01: 38 USC 5110, Mrs. Wolf satisfied it. [00:44:26] Speaker 01: 38 USC 1310, Mrs. Wolf satisfied it. [00:44:29] Speaker 01: She is a qualified spouse who filed [00:44:32] Speaker 01: her DIC claim within one year of her husband 100% service-connected veteran passing away. [00:44:39] Speaker 01: There is no alternative. [00:44:40] Speaker 01: She's already filed for reconsideration. [00:44:42] Speaker 01: So what good is it going to do to file a second one? [00:44:45] Speaker 01: She filed it generally before she was represented, not under 1000A, B or C, just 1000. [00:44:52] Speaker 01: Vacate at the board won't work because there is no due process violation. [00:44:56] Speaker 01: And vacate brings us right back here. [00:44:58] Speaker 01: The only time they vacate a decision because of fraud is when it's a grant. [00:45:01] Speaker 01: Q can't work because there's no Oklahoma court order involved in a Q review. [00:45:06] Speaker 00: They say... Councillor, although fraud is the underlying issue here, why couldn't you proceed just on the basis of error of fact, that the fact was wrong, the facts that were considered by the board? [00:45:24] Speaker 01: Because I can't prove those facts are wrong, Your Honor, without the evidence of the Oklahoma court order. [00:45:30] Speaker 01: But you have that. [00:45:31] Speaker 01: I have that, but when they say they will review that, it looks... Sorry, Your Honor. [00:45:40] Speaker 00: Yeah, no, but I think you're stuck on the basis of a feature filing for reconsideration to be based on the fraud. [00:45:53] Speaker 00: But just leaving fraud aside, why can't you just do it on an obvious or a fact? [00:46:03] Speaker 01: I could, Your Honor. [00:46:04] Speaker 01: I just don't see how I'm going to succeed on it. [00:46:07] Speaker 01: I don't know how the board is going to just deal with, because all of a sudden, you can do that with every single board denial. [00:46:16] Speaker 01: You could submit evidence that, hey, your denial that you have from 23 years ago was wrong. [00:46:22] Speaker 01: It's obvious wrong. [00:46:23] Speaker 01: Look at this record I have that was generated yesterday. [00:46:27] Speaker 01: There is no time limit to file a motion for reconsideration. [00:46:31] Speaker 01: I mean, the board's in trouble now with how long it takes. [00:46:34] Speaker 01: I can't imagine what would happen if you could just submit whatever evidence and get the earliest possible effective date. [00:46:40] Speaker 01: It would also get around new and material evidence reopening claims. [00:46:46] Speaker 01: There'd be no point of that statute anymore. [00:46:49] Speaker 03: Mr. Hoffman, can I just move? [00:46:51] Speaker 03: Does she have any claim against the third party here who committed the fraud? [00:46:57] Speaker 03: Because while we've been discussing this, I've just been thinking about other circumstances that arise with tax problems with the IRS. [00:47:06] Speaker 03: Often there's an argument, at least, that your situation is the result of what some third party do. [00:47:14] Speaker 03: And I am thinking those issues are relieved [00:47:20] Speaker 03: by filing a state law claim or some claim against the person who perpetrated the fraud that caused you to lose this money. [00:47:27] Speaker 03: Is there any claim that's pending by your client against this other person? [00:47:35] Speaker 01: I don't think so, Your Honor. [00:47:36] Speaker 01: I don't even know if my client knows where the other person is anymore. [00:47:41] Speaker 03: Do you agree that in normal, you know, in other areas of law and other arenas normally that would be the appropriate recourse against the person who perpetrated the fraud as opposed to the government as a different party? [00:47:55] Speaker 01: I think that can be the case in a typical civil suit. [00:48:01] Speaker 01: However, here, [00:48:03] Speaker 01: Congress never said that, look, if you have recourse against a third party, that means you have no recourse against us. [00:48:12] Speaker 01: For instance, let's say VA orders someone to a medical exam. [00:48:17] Speaker 01: And at the medical exam, there's medical malpractice, and the person gets hurt. [00:48:22] Speaker 01: Not only would they be able to make a Section 1151 claim, that would not be barred, even if they were suing that medical examiner in a state court. [00:48:31] Speaker 01: There's nothing in Congress when they don't want a veteran to receive duplicate benefits has always mandated it in a statute. [00:48:38] Speaker 01: For instance, DOD benefits when you're less than 50% service connected and VA benefits. [00:48:46] Speaker 01: So it just doesn't matter. [00:48:47] Speaker 01: She's entitled to the benefits by statute that Congress wanted her to have. [00:48:51] Speaker 03: Okay, I take your point. [00:48:53] Speaker 00: Also, I think you told me at the beginning that Rhonda Matthews never did receive any payments, right? [00:49:00] Speaker 01: As far as we know, Your Honor, I just don't know why she committed the fraud. [00:49:04] Speaker 01: I don't know what she got out of it. [00:49:09] Speaker 03: Anything further? [00:49:11] Speaker 01: If I can respond to one more thing about the 7103 being left open. [00:49:14] Speaker 01: 7103 could be interpreted. [00:49:19] Speaker 01: The VA was left to figure out when to reconsider. [00:49:22] Speaker 01: And the VA did at least look at statutes and determine some of which it should reconsider. [00:49:28] Speaker 01: But what it didn't do, and it figured when it saw that Congress wanted it to reconsider some fraudulent decisions, its second decision is not rational. [00:49:39] Speaker 01: The government still, to this day, can't provide a rational explanation of why, when it decided to reconsider fraud, it would only reconsider fraud that cost it money. [00:49:49] Speaker 01: And that's why it's arbitrary and capricious. [00:49:52] Speaker 01: The court should hold that all the decisions, all decisions influenced by fraud requires reconsideration in order to uphold the confidence that the public has in VA decisions, protect the treasury, and to ensure all claimants who it knows are entitled to benefits receive them. [00:50:09] Speaker 03: My colleagues have nothing further. [00:50:11] Speaker 03: Hearing nothing, thank both counsel and the case is submitted. [00:50:18] Speaker 01: Thank you, Your Honor.