[00:00:00] Speaker 01:
Our first case for argument today is 21-1904, Davis versus McDonough.

[00:00:07] Speaker 01:
How do I say your name, counsel?

[00:00:09] Speaker 03:
DeHawkes, your honor.

[00:00:10] Speaker 01:
Mr. DeHawkes, please proceed.

[00:00:14] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
May it please the court?

[00:00:15] Speaker 03:
Kenny DeHawkes for appellant.

[00:00:17] Speaker 03:
Mr. Brian Davis.

[00:00:19] Speaker 03:
This appeal asks the court to answer a single question.

[00:00:22] Speaker 03:
Must the Veterans Court wait for the board to interpret regulation before that regulation is right for interpretation at the court?

[00:00:31] Speaker 03:
The answer must be no, especially when it's here, the VA has affirmatively chosen not to interpret the regulation at all stages of the claim and appeal.

[00:00:41] Speaker 03:
The best place to start is with the court's decision.

[00:00:44] Speaker 03:
The Veterans Court held, and I'm looking at Appendix 7, that remand is required for the board to adequately describe its standards for comparing and assessing the terms of the regulation in the first instance.

[00:00:57] Speaker 03:
But this is not a corrected statement of the law.

[00:01:00] Speaker 03:
The only legal authority relied upon is its own case law that makes this same legal error.

[00:01:06] Speaker 03:
But as we know, this court is not bound by decisions from the Veterans Court.

[00:01:10] Speaker 05:
Can I, sorry to interrupt, but you argue, do you not, that the Veterans Court had to, i.e.

[00:01:16] Speaker 05:
was required to interpret the regulation in the first instance?

[00:01:20] Speaker 03:
Yes, Your Honor.

[00:01:21] Speaker 05:
What's your support for that?

[00:01:24] Speaker 03:
Primarily, Your Honor, we rely on 7261, its jurisdictional scope of review statute, which says that when presented, they will, shall, interpret regulations within an appeal.

[00:01:39] Speaker 05:
Now, we reckon that- Well, it says a little more than that.

[00:01:41] Speaker 05:
It says as to the extent necessary to its decision.

[00:01:46] Speaker 05:
And if it's sending a remand, that sort of takes it out of that, right?

[00:01:50] Speaker 03:
It can, Your Honor.

[00:01:51] Speaker 03:
However, particularly in this case, and I want to emphasize that this case is a bit unique because we have a situation, as we emphasize repeatedly in our briefing, where the Secretary has not offered any interpretation for the regulation.

[00:02:06] Speaker 03:
And looking at Kaiser v. McDonough, this court, through a couple different opinions,

[00:02:13] Speaker 03:
indicates that when there's no interpretation entitled to deference, when there's no deference afforded, whether because the secretary does not offer an interpretation or that interpretation is not reasonable, the pro-veteran canon applies.

[00:02:28] Speaker 03:
Secondly,

[00:02:31] Speaker 03:
Again, as we emphasize repeatedly in our brief, from the beginning of this claim, Mr. Davis has never been told how to achieve a specific rating, whether it be a 30% or 60% rating, based on the words that the secretary put in his regulation.

[00:02:49] Speaker 03:
Not when they created the regulations.

[00:02:52] Speaker 05:
Except the remand is going to give him another medical exam, right?

[00:02:57] Speaker 05:
Yes, sir.

[00:02:59] Speaker 05:
How does an arguable advisory opinion here, when we don't even know what the facts that we're dealing with are, why is that necessary?

[00:03:10] Speaker 05:
I mean, I don't think anybody's arguing that the CAVC couldn't have done it if it saw a need to do it.

[00:03:16] Speaker 05:
But how is that necessary or required here when we don't even have the underlying facts upon which this whatever interpretation is relevant would be applied?

[00:03:28] Speaker 03:
Yes, Your Honor, thank you.

[00:03:30] Speaker 03:
The facts of the case, we argue, are not relevant to this specific legal question.

[00:03:37] Speaker 03:
The legal question is twofold.

[00:03:39] Speaker 03:
One, is Mr. Davis entitled to an interpretation of the regulation?

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at this stage with this record before the Veterans Court, where there's no deference afforded to the Secretary.

[00:03:53] Speaker 05:
And again, just picking up where we started, and you're saying that they violated 7261.

[00:04:01] Speaker 05:
By not doing that?

[00:04:03] Speaker 05:
Yes, Your Honor.

[00:04:04] Speaker 05:
So is that your entire?

[00:04:05] Speaker 03:
Not the entire argument, Your Honor.

[00:04:06] Speaker 03:
The second part of that is fair process and due process, primarily fair process.

[00:04:11] Speaker 03:
Mr. Davis is entitled, through this court's case law and also the Veterans Court's case law, to have participation within his claim

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meaningful participation which he cannot do if he never knows the standard.

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And by interpreting the regulation before it goes back to the board, Mr. Davis now knows what the standard is for achieving so that when the examination occurs, he's able to talk to the examiner, he's able to present evidence after the exam,

[00:04:49] Speaker 03:
and present argument to the board before his claim is adjudicated.

[00:04:53] Speaker 02:
I mean, if your argument prevails, doesn't that mean that every time the veteran decides he or she wants an official interpretation from the Veterans Court, that they can get that before they have to go through a board adjudication?

[00:05:06] Speaker 03:
Not necessarily, Your Honor.

[00:05:07] Speaker 03:
That is the logic of your argument, right?

[00:05:09] Speaker 03:
That is a logical next step, yes.

[00:05:12] Speaker 02:
Well, that's not the way the system is set up, though.

[00:05:14] Speaker 02:
The system is set up.

[00:05:16] Speaker 02:
You go to the RO, you go to the board, you go to the Veterans Court.

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And here, the Veterans Court said, board, you didn't do a good enough job.

[00:05:21] Speaker 02:
Give them another medical examination and look at it again.

[00:05:24] Speaker 02:
It's essentially a reasons and basis remand.

[00:05:28] Speaker 03:
Not entirely, Your Honor.

[00:05:29] Speaker 03:
Again, I think that that is a logical next step argument, which I'm sure many advocates would be happy to present should this court find in our favor.

[00:05:39] Speaker 03:
But we want to emphasize that under the facts of this case, they are unique in that, number one, the secretary has not offered an interpretation that is subject to deference.

[00:05:51] Speaker 02:
Maybe the secretary thinks the writing schedule is plain and that they don't need to offer an interpretation.

[00:05:57] Speaker 03:
But they didn't say that, Your Honor.

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All they said was is that the board.

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They're going to leave it to the board.

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The board is the instrument of the secretary.

[00:06:05] Speaker 03:
Your Honor, I would disagree with that, respectfully.

[00:06:07] Speaker 03:
The board does not speak for the secretary.

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Its own regulations say that its decisions are binding only on the particular.

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What I mean in that way, the board doesn't issue decisions that necessarily get our deference.

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The board, however, if it's a decision granting an award in favor of your client, is the final word.

[00:06:27] Speaker 03:
It can be, Your Honor.

[00:06:28] Speaker 02:
Let me ask you this.

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I mean, we're talking about your legal argument.

[00:06:32] Speaker 02:
Why is this case even within our jurisdiction?

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This is a remand order.

[00:06:36] Speaker 02:
And you haven't shown that you're going to necessarily be prejudiced on remand.

[00:06:42] Speaker 02:
In fact, you may very well win on remand because you get a new medical exam showing your client's entitled to the higher rating.

[00:06:51] Speaker 03:
We are prejudiced, Your Honor.

[00:06:52] Speaker 03:
Well, first to start, we do believe it is illegal.

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decision.

[00:06:56] Speaker 02:
There was a legal issue.

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That doesn't mean it's, you know, we don't have automatic interlocutory appeal over Veterans Court's decisions.

[00:07:04] Speaker 02:
You have to meet our Williams Criteria.

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And they're very hard for Veterans to meet because the remands usually will, unless there's some legal rule that was established that will definitely injure them below, you don't get an appeal remands.

[00:07:19] Speaker 02:
And here, all the court did was send it back and say, get a new medical exam and take a look at this again.

[00:07:24] Speaker 03:
Your Honor, we do think that there was more to it than just that.

[00:07:28] Speaker 03:
That is a big part of the remand.

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And the evidence development is a distinct and separate part of the remand order.

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The legal issue that the court decided, again, is that a remand is required for the board to interpret the regulation.

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And the board's interpretation of the regulation has no bearing whatsoever on what the meaning of the regulation is.

[00:07:53] Speaker 03:
The courts review the secretary's proffered interpretation.

[00:07:58] Speaker 03:
but only, as Kaiser v. Wilkie emphasized, that when it emanates from those actors using those vehicles understood to make authority... I don't know what you mean when you say the board doesn't have any role in interpreting regulations.

[00:08:10] Speaker 02:
That's exactly what they do.

[00:08:12] Speaker 02:
They look at the record, they apply the regulations to the facts of the case, and they make an outcome.

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And if you don't like the board's interpretation, you can appeal it back up to the Veterans Court.

[00:08:21] Speaker 03:
True, Your Honor.

[00:08:22] Speaker 03:
But again, before the decision is given, Mr. Davis is entitled to meaningful participation, which he cannot achieve under this court's remand order, under the Veterans Court's remand order, because he cannot know, based on the regulation that applies to him, how to achieve a specific rating.

[00:08:45] Speaker 03:
The two standards, considerable and severe, as we talked about in our briefing below and highlighted in our briefing here, are essentially the same thing.

[00:08:53] Speaker 03:
There's no daylight between those two words when you look at their plain dictionary definition.

[00:08:59] Speaker 03:
These are also not words of art or something that's within the expertise like a unemployability or marginal employment, as we see in some of these other terms.

[00:09:11] Speaker 02:
Is the rating schedule in the appendix?

[00:09:17] Speaker 03:
It is not your honor, but it is quoted in our briefing, the opening brief to the Veterans Court, an appendix 24.

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And you can see the 30% rate is assigned where there is certain symptoms, which the board favorably found he had, all of those, productive of considerable impairment of health.

[00:09:55] Speaker 03:
And the 60% is assigned for symptoms that are productive of severe impairment of health.

[00:10:03] Speaker 01:
Council, am I correct that for us to order the Veterans Court to proper a construction or for us to proper construction, whatever, you have to overcome not only Williams and whether or not this is

[00:10:21] Speaker 01:
a case over which we have jurisdiction.

[00:10:25] Speaker 01:
But also, didn't the Veterans Court expressly find that you waived this argument by not raising it until your reply brief, and they therefore weren't going to do it?

[00:10:35] Speaker 01:
So I have to find against both of those.

[00:10:38] Speaker 01:
I have to find that you've met all the Williams standards and that the court below was somehow wrong in concluding that you waived the argument.

[00:10:49] Speaker 03:
Not exactly, Your Honor.

[00:10:52] Speaker 03:
There are two primary bases for why Mr. Davis is harmed by this.

[00:10:58] Speaker 03:
And number one is the fair process issue.

[00:11:03] Speaker 03:
But the second is simply that he's entitled, under extending some of the case law that

[00:11:10] Speaker 01:
From this floor... Well, that doesn't make any sense at all.

[00:11:14] Speaker 01:
That argument is... it makes no sense.

[00:11:17] Speaker 01:
For you to say that somehow the jurisdictional statute entitles him to a legal or statutory interpretation even if he didn't raise it and the board found it waived.

[00:11:27] Speaker 01:
You're trying to tell me that the jurisdictional statute that permits them to reach issues requires them to even if they determine the party waived them.

[00:11:35] Speaker 01:
Is that your argument?

[00:11:36] Speaker 03:
No, Your Honor, that's not my argument.

[00:11:38] Speaker 03:
I apologize.

[00:11:40] Speaker 03:
I misunderstood your question.

[00:11:41] Speaker 03:
I thought you were asking about the fair process that the Veterans Court had found Mr. Davis had waived a fair process argument.

[00:11:51] Speaker 03:
Our argument from the beginning, and particularly in the reply brief, when the Secretary

[00:11:57] Speaker 03:
in his brief asked for a remand, we emphasized in our reply brief in response to his argument that we are entitled to an interpretation prior to it remand the remand going back.

[00:12:11] Speaker 03:
We agree that this case has to go back to the board for additional fact-finding because the evidence is insufficient to determine whether he meets any criteria for the regulation.

[00:12:22] Speaker 03:
The real issue for Mr. Davis is we don't know what the standards are.

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And we cannot know until he's been denied.

[00:12:30] Speaker 01:
So that's your fair process argument, correct?

[00:12:33] Speaker 03:
In part, Your Honor, yes.

[00:12:34] Speaker 01:
And that's the argument that they found you waived?

[00:12:37] Speaker 03:
Yes, Your Honor.

[00:12:39] Speaker 01:
OK.

[00:12:39] Speaker 01:
But the- You want to use the rest of your time for rebuttal?

[00:12:42] Speaker 03:
I will reserve the rest of my time.

[00:12:45] Speaker 03:
Yes, Your Honor.

[00:12:45] Speaker 03:
Thank you.

[00:12:47] Speaker 04:
Ms.

[00:12:47] Speaker 04:
Kramer?

[00:12:50] Speaker 04:
May it please the-

[00:12:53] Speaker 04:
May it please the court.

[00:12:54] Speaker 04:
The remand order here is a non-final determination and thus unreviewable by this court.

[00:13:00] Speaker 05:
Well, kind of the problem here, and I hadn't realized it, frankly, until I took a deeper dive into this case, is that in addition to Williams, we've got other cases and some point in some directions and some point in others.

[00:13:13] Speaker 05:
And your argument would be that the ones that point in his direction are distinguishable from this.

[00:13:19] Speaker 05:
So how do you distinguish Stevens?

[00:13:21] Speaker 05:
Sure.

[00:13:23] Speaker 04:
Stevens was...

[00:13:28] Speaker 04:
The argument was that there would be inappropriate evidentiary development, which here isn't the argument.

[00:13:38] Speaker 05:
Well, isn't he saying that he's going to be going around in circles trying to develop an evidentiary record where he really doesn't know the details of the standard that he needs to apply to that evidentiary record?

[00:13:53] Speaker 04:
As Chief Judge Moore mentioned, that argument was waived below, and the Veterans Court didn't reach it.

[00:14:01] Speaker 04:
That particular fair process argument was waived.

[00:14:03] Speaker 05:
Was it styled as a due process argument in Adams and Stevens?

[00:14:07] Speaker 05:
I don't recall.

[00:14:08] Speaker 05:
I don't know the answer to this question.

[00:14:10] Speaker 05:
I'm not fading yet.

[00:14:11] Speaker 04:
No, it was, I think, styled just as an exception to the Williams factors in that it was a final decision, and that would

[00:14:21] Speaker 04:
be unreviewable after a remand.

[00:14:24] Speaker 01:
I mean, am I right in remembering the facts in Stevens?

[00:14:28] Speaker 01:
Shouldn't your response be that in Stevens, the entire case was capable of resolution without remand and therefore without additional factual development, whereas here, this case has to go back no matter what for factual development?

[00:14:43] Speaker 04:
Absolutely, Your Honor.

[00:14:47] Speaker 04:
None of the Williams factors are met here.

[00:14:49] Speaker 04:
There is no clear final legal decision that is adverse to the claimant.

[00:14:55] Speaker 04:
And there is no substantial risk that the legal issue will be unreviewable after remand.

[00:15:01] Speaker 04:
Even if this court were to find that the Williams factors were not met, you should affirm the Veterans Court remand.

[00:15:11] Speaker 04:
It was a lawful.

[00:15:13] Speaker 04:
garden variety, reasons for bases, remand for the board.

[00:15:17] Speaker 05:
But what if the CABC here had made a specific legal conclusion with respect to the standard to be applied, right?

[00:15:26] Speaker 05:
And then remanded it.

[00:15:28] Speaker 05:
Would that change your position in terms of whether or not that's reviewable by us at this stage?

[00:15:34] Speaker 04:
No, Your Honor.

[00:15:35] Speaker 04:
And I would point to Donnellan, which speaks of the classic case of a non-final order.

[00:15:41] Speaker 04:
which is where the argument is not that the claimant has a legal right not to undergo a remand, but rather that the remand proceeding should be conducted under a different legal standard than that ordered by the Veterans Court.

[00:15:56] Speaker 04:
And I think that's analogous to the situation here, because he's essentially arguing that the Veterans Court should have accepted his standard or proffered a different one than it did, which was to decline to offer a standard.

[00:16:10] Speaker 04:
And so I think it's analogous to Dunnellen.

[00:16:15] Speaker 04:
If the court has no further questions, I will rest there.

[00:16:20] Speaker 00:
OK, thank you, Ms.

[00:16:21] Speaker 00:
Kramer.

[00:16:22] Speaker 00:
OK, counsel, you have some rebuttal time.

[00:16:26] Speaker 03:
Thank you, Your Honor.

[00:16:29] Speaker 03:
Just to want to emphasize that even without the fair process harm, there is still the fact that we assert that Mr. Davis is entitled to an interpretation without deference now.

[00:16:43] Speaker 03:
And he should not have to wait for the board to offer a interpretation that really is not binding on anyone.

[00:16:50] Speaker 03:
This was admitted in oral argument in Kaiser v. Wilkie to the Supreme Court that the board does not speak for the secretary.

[00:16:56] Speaker 02:
But if we allow you to do this kind of interlocutory bill, it's going to happen in every single case where there's a remand.

[00:17:03] Speaker 02:
They're going to come up here and they're going to say, you should interpret the statute in the first instance.

[00:17:08] Speaker 02:
So there's guidance.

[00:17:09] Speaker 02:
I mean, this is why we don't allow

[00:17:11] Speaker 02:
appeals from non-final orders in all cases, not just your cases, disappointed litigants always want a ruling from us on how the proceedings should be.

[00:17:23] Speaker 02:
But we don't do that when it's a non-final order.

[00:17:26] Speaker 02:
How do you distinguish this case from any of those garden variety non-final order cases?

[00:17:31] Speaker 03:
This case is distinguished, Your Honor, because, again, the Secretary made a deliberate decision not to interpret the regulation at any stage.

[00:17:40] Speaker 03:
I would submit that had the secretary... Do you think that's unique?

[00:17:44] Speaker 02:
I don't think that's unique here.

[00:17:46] Speaker 02:
The boards get appeal, you know, they get notices of disagreements filed and they look at decisions of the RO under all kinds of rating schedules that the secretary hasn't officially promulgated an authoritative interpretation of.

[00:18:01] Speaker 03:
It's not unique at the board level, Your Honor, but it is unique within, we believe, in the eyes of the law and at the court level.

[00:18:09] Speaker 03:
At the court, the secretary is free to offer an interpretation.

[00:18:13] Speaker 03:
And at that point, we now have something to go off of.

[00:18:16] Speaker 03:
We at least know that this is a starting point for what the secretary thinks the regulation means.

[00:18:22] Speaker 03:
And if we can meet that standard on remand, then we can achieve the rating and the benefits to which we think we're entitled.

[00:18:29] Speaker 03:
If we don't meet that standard and we think that standard's wrong, then we're free to pursue it at court to try to get that standard changed.

[00:18:37] Speaker 02:
But at least we know from the beginning... You're not precluded from making any of these arguments if you're not satisfied with what happens on the remand, are you?

[00:18:45] Speaker 03:
Well, we can make them, Your Honor, but it doesn't mean that it's going to have any effect because, again, we don't know how the VA reads the regulation and how the VA reads the regulation is going to control

[00:18:56] Speaker 02:
And if we don't know how to... We've got to get a decision from the board on how it reads the regulation.

[00:19:02] Speaker 02:
And if you win, you win.

[00:19:03] Speaker 02:
And if you don't, and you disagree with it, you can appeal.

[00:19:06] Speaker 02:
And then the secretary's got to say the board's interpretation was correct or not.

[00:19:10] Speaker 03:
That's true, Your Honor.

[00:19:11] Speaker 03:
But by that stage, if the court agrees with the secretary's interpretation, Mr. Davis is done.

[00:19:17] Speaker 03:
He's out of luck.

[00:19:18] Speaker 03:
He never got a chance to develop his case, develop his facts, develop his evidence,

[00:19:22] Speaker 03:
in a way that matches what at least the secretary has told him.

[00:19:27] Speaker 03:
But again, Your Honor, if he's unsuccessful at the court, he can never get that chance back to try to develop the evidence.

[00:19:44] Speaker 02:
was you were given insufficient opportunity to develop the evidence to show that interpretation.

[00:19:50] Speaker 02:
And you know, if the Veterans Court rejects that and you come up here and say that, you might get a remand back again.

[00:19:55] Speaker 02:
You're not barred from any of this.

[00:19:57] Speaker 02:
I mean, you just fought a really early interlocutory field to get us to decide an issue that's not even right, because we don't even have the facts before us of what condition your client has and how we would interpret it under this code.

[00:20:13] Speaker 03:
I understand.

[00:20:14] Speaker 03:
With that, we again ask this court to find in his favor and order the Veterans Court to provide him his due and fair process.

[00:20:24] Speaker 00:
Thank you.

[00:20:24] Speaker 00:
Okay, I thank both counsel.

[00:20:26] Speaker 00:
This case is taken under submission.