[00:00:00] Speaker 03:
Our first case for today is 21-2081, Groves versus McDonough.

[00:00:07] Speaker 03:
Is it Lorges?

[00:00:10] Speaker 03:
How do I say her name?

[00:00:10] Speaker ?:
Lorges.

[00:00:11] Speaker 03:
Lorges.

[00:00:12] Speaker 03:
Ms.

[00:00:12] Speaker 03:
Lorges, please proceed.

[00:00:14] Speaker 03:
And you may take your mask off of the podium if you wish.

[00:00:18] Speaker 00:
Thank you, Chief Judge Moore, and may it please the court.

[00:00:22] Speaker 00:
Caroline Lorges on behalf of appointed amicus curie.

[00:00:26] Speaker 00:
This court should recognize automatic stays upon a veteran's request in order to uphold the important underlying principles of the veteran's claim system.

[00:00:36] Speaker 02:
Indefinitely?

[00:00:39] Speaker 00:
Your Honor, the Secretary's concerns of an indefinite stay are overblown.

[00:00:45] Speaker 00:
Veterans have everything.

[00:00:47] Speaker 01:
Well, here we are.

[00:00:48] Speaker 01:
This has been going on for 10, 20 years.

[00:00:51] Speaker 00:
Yes, the secretary characterizes Mr. Groves' requests for a stay as indefinite or seeking to stay the case for 15 years.

[00:01:00] Speaker 00:
But that's simply not the case.

[00:01:02] Speaker 00:
Mr. Groves has been litigating this case for years in an effort to have his requests for a stay acknowledged and respected by the board.

[00:01:13] Speaker 01:
But what did he say?

[00:01:15] Speaker 01:
You characterize him as saying that he asked the request to state an order to fully develop and correct the factual record.

[00:01:22] Speaker 01:
I don't see any support for that.

[00:01:24] Speaker 01:
And I also looked in the record before us, and I don't see his request that we have copies of them.

[00:01:32] Speaker 01:
If I'm mistaken in that, please correct me.

[00:01:35] Speaker 01:
But what did he say when he requested these stays?

[00:01:39] Speaker 00:
Yes, Your Honor, he requested that.

[00:01:41] Speaker 01:
Have you looked at his request?

[00:01:43] Speaker 00:
Based on the board's decision, yes.

[00:01:46] Speaker 00:
And how the board can.

[00:01:47] Speaker 01:
You haven't looked at the actual request, just the board decision?

[00:01:50] Speaker 00:
I do not have a copy of the actual letter.

[00:01:53] Speaker 00:
However, the letters were characterized by both the board and the Veterans Court on which we are relying.

[00:02:00] Speaker 03:
Where could we find how the board characterized his request?

[00:02:04] Speaker 03:
Where would you point me to for that?

[00:02:08] Speaker 03:
Because like Judge Dyke, I was struggling to find where he explained his rationale for wanting to enjoin further action.

[00:02:17] Speaker 03:
And you make several representations in your brief about what his rationale was.

[00:02:23] Speaker 03:
Also, like Judge Dyke, struggling to find where in the record that is the case.

[00:02:27] Speaker 03:
So where are the boards of opinion, did you say?

[00:02:30] Speaker 00:
Understood, Your Honor.

[00:02:31] Speaker 00:
In the board's decision, they characterize his letters as simply not- What page?

[00:02:36] Speaker 00:
I can provide a citation on rebuttal.

[00:02:40] Speaker 01:
There's a reference on it in appendix three in the middle of the page.

[00:02:45] Speaker 01:
This is the Veterans Court opinion.

[00:02:49] Speaker 01:
He said he joined, this is the middle of the page, he joined the RO and the board from further action regarding the VRE claims due to destruction of records and repeated constitutional and due process violations.

[00:03:02] Speaker 01:
But I don't see any reference in the Veterans Court opinion or the board's opinion that he

[00:03:08] Speaker 01:
requested to stay so that he could develop further evidence, which you say in your brief.

[00:03:13] Speaker 01:
What's the support for that?

[00:03:16] Speaker 00:
Your Honor, that's based on correspondence with Mr. Groves, as well as his supplemental.

[00:03:20] Speaker 01:
Well, where?

[00:03:21] Speaker 01:
I mean, what's your record's support for it?

[00:03:25] Speaker 00:
The supplemental briefing in this case, he does specify on page 9 that correction of illegal records

[00:03:37] Speaker 00:
is one of the main basis for his request first day.

[00:03:42] Speaker 03:
On page nine.

[00:03:44] Speaker 00:
Of the supplemental informal brief.

[00:03:52] Speaker 03:
Where is it?

[00:03:53] Speaker 03:
Top of the page?

[00:03:55] Speaker 03:
Bottom of the page?

[00:03:57] Speaker 03:
I think I'm on page nine of the supplemental.

[00:04:12] Speaker 00:
He states in the middle of the page, this failure to correct the illegal records is one of the main bases upon which Mr. Groves invoked his right to stay the proceeding, because without a fair, developed record, there can be no fair adjudication.

[00:04:33] Speaker 01:
What does he mean by illegal records?

[00:04:37] Speaker 00:
Mr. Groves disputes the accuracy of the records in this case.

[00:04:42] Speaker 00:
For example, based on my review of the record, the board in its 2017 decision called into question his ability to travel, which was one of the basis on which his very benefits were denied.

[00:04:59] Speaker 00:
In a 1999 Texas Veterans Commission report, they noted that the veteran was stranded.

[00:05:07] Speaker 00:
at his residence.

[00:05:08] Speaker 00:
So providing additional evidence along these lines may help further bolster his claim.

[00:05:18] Speaker 01:
Did he request a hearing before the board in the most recent round?

[00:05:26] Speaker 01:
As I understand the board regulations, you don't get a hearing unless you request it.

[00:05:31] Speaker 01:
Did he request a hearing?

[00:05:33] Speaker 00:
your honor the secretary may be able to speak better to the specific facts of that.

[00:05:38] Speaker 01:
I think you know in performing the role of amicus it requires that you familiarize yourself with the record including the record before the board so that you can help us answer these questions.

[00:05:52] Speaker 00:
Understood your honor.

[00:05:56] Speaker 00:
The fear of indefinite stays is overblown because the veterans have an incentive

[00:06:01] Speaker 00:
to continue their claims to resolution.

[00:06:05] Speaker 03:
The veterans have every incentive to get their benefits because they are relying... But if that were true in this case, my understanding of why the VRE benefits were denied is because of Mr. Grove's failure to participate

[00:06:23] Speaker 03:
in the evaluation.

[00:06:24] Speaker 03:
Is that right?

[00:06:26] Speaker 00:
Yes, Your Honor.

[00:06:26] Speaker 00:
The VRE benefits were denied because he was unable to travel to the location of the RO in order to have his VRE evaluated.

[00:06:35] Speaker 03:
But didn't they then move the location to make it more convenient for him and offer him multiple additional opportunities that were closer to home to be evaluated?

[00:06:45] Speaker 00:
Yes, Your Honor.

[00:06:46] Speaker 00:
I believe that those locations were still 250 miles away from his home.

[00:06:52] Speaker 00:
Which is, if the Veterans Commission report is correct that he was stranded at his home, still a very difficult burden to do so.

[00:07:03] Speaker 00:
The final March 2016 decision appointment that this case stems from was not closer to his home and was not providing him with funds in order to travel to or from the location.

[00:07:24] Speaker 03:
And did he make this argument that the location, though closer to my home, is still not possible for me to get to?

[00:07:34] Speaker 00:
Yes, Your Honor.

[00:07:35] Speaker 00:
He articulated that multiple times throughout his

[00:07:39] Speaker 00:
meetings and he also articulated the fact that he felt abandoned by the VA because they were unable to come up with an accommodation for him.

[00:07:48] Speaker 03:
Is it your view that in order when he's seeking benefits for vocational rehabilitation and employment services that if he I guess I guess what is it that you view the VA as being required to do in this case?

[00:08:07] Speaker 03:
Do you

[00:08:08] Speaker 03:
Do you believe that they absolutely have an obligation to come to his home if he says he can't travel there?

[00:08:13] Speaker 00:
The VA has the obligation to provide reasonable accommodations and to take into account the circumstances of the veteran himself.

[00:08:24] Speaker 00:
So in this case, providing some sort of home evaluation, there was one home evaluation representative was sent.

[00:08:34] Speaker 00:
However, Mr. Groves was not given notice ahead of time and did not have a productive valuation at that time.

[00:08:43] Speaker 01:
But is this issue about the denial of the benefits before us or is the only issue before us whether they should have stayed the decision?

[00:08:55] Speaker 00:
The Veterans Court didn't properly participate in de novo finding of fact when they found that the board, that there was no prejudice in the board not applying.

[00:09:11] Speaker 03:
Well, but they're allowed to make fact findings in the context of their harmless error jurisdiction.

[00:09:16] Speaker 03:
They have express statutory jurisdiction to make harmless error assessments, which requires them to make de novo fact findings, and that's all

[00:09:25] Speaker 03:
within their jurisdiction as afforded to them by Congress, by statute.

[00:09:29] Speaker 03:
So what's wrong with them having done that?

[00:09:31] Speaker 00:
Under Tadlock and McDonough, the court should not have found factually that Mr. Groves did not provide a reason for his stay when the underlying board decision simply held that the letters did not constitute a withdrawal of his appeal.

[00:09:49] Speaker 03:
Why?

[00:09:49] Speaker 03:
When you assess harmless error, you may very well have to address facts

[00:09:53] Speaker 03:
that exceed the scope of the board's review on an actual case, because you're now assessing harmless error, which is a different issue necessarily than exactly what was presented to the board.

[00:10:05] Speaker 03:
And the VA has been given constant, Congress gave them express jurisdiction over harmless error analyses in the first instance, de novo.

[00:10:14] Speaker 03:
So why?

[00:10:15] Speaker 03:
What is wrong with them deciding whether he was prejudiced or not?

[00:10:18] Speaker 03:
What is wrong with them?

[00:10:19] Speaker 03:
making a decision about whether he could or couldn't travel or whatever.

[00:10:22] Speaker 03:
Whatever it is that they did, from a factual standpoint, why is that erroneous in your view?

[00:10:29] Speaker 00:
The Veterans Court in this case applied too high of a standard, particularly when there was no standard for Mr. Groves to meet at the time when he requested his stay.

[00:10:41] Speaker 00:
He did expressly what Hamilton requested, which was identifying the claims in writing that he wished to say.

[00:10:49] Speaker 00:
And he even quoted the Hamilton language in his letters.

[00:10:55] Speaker 00:
At the time, there was no standard for him that he was required to meet.

[00:11:01] Speaker 01:
But again, we don't have the letters.

[00:11:03] Speaker 01:
So we don't know exactly what he said.

[00:11:06] Speaker 00:
Yes, this is based on the Veterans Court's findings of fact, Your Honor.

[00:11:12] Speaker 03:
Where in the Veterans Courts finding a fact are you pointing?

[00:11:17] Speaker 03:
Direct me to what you want me to look at.

[00:11:28] Speaker 00:
If you look at the respondent's informal brief and appendix in this case.

[00:11:34] Speaker 03:
Respondent, so the government's brief?

[00:11:36] Speaker 00:
Yes, that's correct.

[00:11:37] Speaker 03:
The government's brief at where?

[00:11:39] Speaker 03:
The supplemental brief or their original brief?

[00:11:42] Speaker 03:
The original brief.

[00:11:42] Speaker 03:
Okay, original government brief, yes.

[00:11:50] Speaker 00:
They describe at APPS 03 to 04 at the bottom the letters.

[00:12:19] Speaker 01:
But again, that doesn't tell us what he said in joining the agency from any further adjudication of his clients.

[00:12:29] Speaker 01:
But why?

[00:12:30] Speaker 01:
What was his theory?

[00:12:37] Speaker 00:
At the time there was no standard that Mr. Groves was required to meet and that's why the court in this case should hold a clear standard regardless of the test because both the Veterans Court and the Board and Veterans need that guidance.

[00:12:57] Speaker 00:
The simple fact alone that Mr. Groves had a 2012 decision from the Veterans Court that came to a contradictory result shows the need for guidance.

[00:13:10] Speaker 00:
I would like to reserve my further time in rebuttal.

[00:13:12] Speaker 03:
Of course, no problem.

[00:13:13] Speaker 00:
Thank you.

[00:13:14] Speaker 03:
Let's hear from the government.

[00:13:17] Speaker 03:
Mr. Pixley, please proceed.

[00:13:19] Speaker 02:
Thank you.

[00:13:20] Speaker 02:
May I please report?

[00:13:22] Speaker 02:
I will start off by answering the questions that the court posed for supplemental briefing and argument.

[00:13:28] Speaker 03:
Well, I'd like you to start.

[00:13:29] Speaker 03:
I think that the standard that the CAVC

[00:13:34] Speaker 03:
was applying to whether or not a stay should be granted is incorrect.

[00:13:41] Speaker 03:
To the extent that they read Hamilton as requiring a potentially indefinite stay, I think that would be inconsistent with the law in sort of every analogous area I can imagine, not to mention the fact that we're not even bound by Hamilton.

[00:13:55] Speaker 03:
So it's kind of irrelevant now that we're here.

[00:13:58] Speaker 03:
Why don't you start by telling me what the standard should be for what

[00:14:05] Speaker 03:
board ought to be thinking about when it's assessing a request for a stay?

[00:14:09] Speaker 02:
Yes, ma'am.

[00:14:12] Speaker 02:
Our position, we agree.

[00:14:13] Speaker 02:
We believe that Chief Judge Bartley, in her concurring opinion, interpreted Hamilton correctly and stated that a veteran, when a veteran requests a stay, there is no automatic right to a stay.

[00:14:30] Speaker 02:
And the appropriate standard,

[00:14:35] Speaker 02:
is that the board has inherent authority to manage its docket under 38 USC section 7107.

[00:14:45] Speaker 02:
And this includes issuing stays.

[00:14:49] Speaker 02:
This was the holding of the Veterans Court in the Ramsey decision that we cited in our supplemental brief.

[00:14:56] Speaker 02:
That authority to issue stays is not unlimited.

[00:14:59] Speaker 02:
And that was stated in Ramsey in addition to another Veterans Court case called Roboto.

[00:15:08] Speaker 03:
Do you believe the board, for example, could choose to issue an indefinite stay?

[00:15:14] Speaker 03:
Do you believe that's within the scope of their inherent authority?

[00:15:19] Speaker 02:
The board's inherent authority to issue an indefinite stay, is that the question?

[00:15:24] Speaker 03:
Yes.

[00:15:24] Speaker 03:
Do you believe the board has the inherent authority to issue an indefinite stay?

[00:15:33] Speaker 02:
A stay decision would be fact specific.

[00:15:44] Speaker 02:
Theoretically, I would answer yes.

[00:15:50] Speaker 02:
That decision would be reviewable by the Veterans Court.

[00:15:54] Speaker 03:
Who, just out of curiosity, would bring that challenge to the Veterans Court?

[00:15:58] Speaker 03:
If the board issued an indefinite stay, how would that ever be reviewed?

[00:16:05] Speaker 02:
So that would be reviewed by the Veterans Court under 38 USC 72.

[00:16:08] Speaker 03:
No, who would bring the challenge?

[00:16:10] Speaker 03:
If the veteran asked for an indefinite stay and the board granted it, do you think the veteran is going to challenge that to the Veterans Court?

[00:16:18] Speaker 03:
No.

[00:16:19] Speaker 03:
If the board issued an indefinite stay, which the veteran had requested, is the government going to come in and contradict the board and somehow bring an appeal?

[00:16:27] Speaker 03:
And if so, what would the jurisdictional basis be for the government to do so?

[00:16:31] Speaker 03:
How exactly is the Veterans Court going to review this indefinite stay?

[00:16:37] Speaker 02:
Well, I admit that example that the court is asking, that hypothetical.

[00:16:43] Speaker 02:
I can't imagine a situation where

[00:16:46] Speaker 02:
the board would have a reason to issue an indefinite stay because the board also has an obligation, VA has an obligation, to adjudicate these claims in a timely fashion.

[00:16:59] Speaker 02:
So to put them on hold forever might come up against its statutory obligation to resolve veterans' claims.

[00:17:08] Speaker 02:
So is there a possible reason, indefinite?

[00:17:13] Speaker 02:
Yeah.

[00:17:14] Speaker 02:
have trouble thinking of that circumstance or who might appeal that.

[00:17:20] Speaker 02:
But in any event, in answer to the court's question, again, the Ramsey decision, Roboto has said that the board's VA's authority to issue stays is not unlimited.

[00:17:37] Speaker 02:
And it is reviewable by the Veterans Court under an abuse of discretion standard.

[00:17:42] Speaker 01:
OK, but what's going on here?

[00:17:44] Speaker 01:
What did he say in his request?

[00:17:47] Speaker 01:
Are you familiar with it?

[00:17:49] Speaker 01:
Have you looked at it?

[00:17:50] Speaker 02:
Yes.

[00:17:51] Speaker 02:
What did he say?

[00:17:51] Speaker 02:
Yes.

[00:17:52] Speaker 02:
Mr. Groves, in October, October 17, 2016, wrote a letter to the board.

[00:18:00] Speaker 01:
And he said, quote, This is not in the record before us, right?

[00:18:05] Speaker 02:
The actual letter is not in the record.

[00:18:06] Speaker 02:
But the language of his request is cited in the decision.

[00:18:11] Speaker 02:
He enjoins you from any further adjudication of his claims, period.

[00:18:17] Speaker 02:
That was the only reason given.

[00:18:19] Speaker 02:
OK.

[00:18:20] Speaker 03:
So his request didn't explain in order to further develop the record?

[00:18:26] Speaker 03:
I mean, I assume that his request is actually in the record.

[00:18:30] Speaker 03:
It just isn't provided to us.

[00:18:31] Speaker 03:
Is that correct?

[00:18:32] Speaker 02:
Yes, that's correct.

[00:18:36] Speaker 01:
Through the record before the board, but not in the?

[00:18:40] Speaker 02:
That is correct.

[00:18:43] Speaker 02:
It was a broad-based request to enjoin you from any further adjudication of the claim, and he cited Hamilton.

[00:18:50] Speaker 02:
That was it.

[00:18:50] Speaker 02:
A reason was not given that he needed more time to get evidence or he was having health problems or medical problems.

[00:18:58] Speaker 02:
It was simply a blank request for a stay of an indefinite

[00:19:06] Speaker 02:
Duration?

[00:19:07] Speaker 03:
OK, that's the first one.

[00:19:08] Speaker 03:
There are two, right?

[00:19:09] Speaker 03:
There's two separate times when he used this I want to enjoin you language.

[00:19:14] Speaker 03:
In the second one, did he provide any explanation?

[00:19:18] Speaker 03:
Am I right in understanding the facts that on two separate occasions, he reiterated this request to enjoin further action or further processing?

[00:19:27] Speaker 02:
Yes.

[00:19:27] Speaker 02:
As the board noted and as the Veterans Court noted, over a period of time, he issued

[00:19:35] Speaker 02:
made multiple requests.

[00:19:36] Speaker 02:
The most recent in time, that's at issue.

[00:19:41] Speaker 02:
And the board's July 2017 decision, he did not give a reason.

[00:19:48] Speaker 02:
He simply cited Hamilton.

[00:19:50] Speaker 03:
And is that true for all of his requests?

[00:19:52] Speaker 03:
I'm asking you.

[00:19:53] Speaker 03:
You're saying he made multiple requests.

[00:19:54] Speaker 03:
I was aware of at least two.

[00:19:56] Speaker 03:
Maybe there are even more than two.

[00:19:57] Speaker 03:
I don't know.

[00:19:58] Speaker 03:
We weren't provided that portion of the record.

[00:20:00] Speaker 03:
Have you reviewed all of them?

[00:20:02] Speaker 03:
Do any of them ask?

[00:20:04] Speaker 03:
or give any specificity at all?

[00:20:08] Speaker 02:
I reviewed the most recent one that's at issue here.

[00:20:14] Speaker 03:
When you say the most recent one that's at issue here, he explains that he on multiple occasions made this request, all of which appear to have been disregarded.

[00:20:24] Speaker 03:
So aren't they all on issue here?

[00:20:28] Speaker 02:
My understanding is that this veteran simply asked for, in his words,

[00:20:34] Speaker 02:
enjoying from any further adjudication.

[00:20:39] Speaker 02:
And what's at issue here is a VRE claim that was put in discontinued status because he failed to cooperate.

[00:20:48] Speaker 02:
He failed to attend his first counseling meeting.

[00:20:51] Speaker 02:
VRE is a counseling process where a veteran meets with a counselor.

[00:20:58] Speaker 02:
The veteran develops vocational, educational goals.

[00:21:03] Speaker 02:
The process works with the cooperation of the veteran.

[00:21:07] Speaker 01:
OK, but as I understand what he's saying, to the extent that I can understand it, he seems to be saying that the records on which the RO relied were, quote, illegal.

[00:21:22] Speaker 01:
That is, apparently, he contends that they're inaccurate, right?

[00:21:27] Speaker 02:
Yes, he has various claims that there's been spoliation, and he's claiming that there was, in his words, illegal litigation.

[00:21:38] Speaker 02:
It's less than clear to us what his arguments are or what he's seeking.

[00:21:47] Speaker 01:
Did he request a hearing before the board in this case?

[00:21:51] Speaker 02:
No.

[00:21:53] Speaker 02:
Not to our knowledge.

[00:21:54] Speaker 02:
He did not request a hearing before the board.

[00:21:57] Speaker 01:
So requesting, if he thought the records were inaccurate, requesting a hearing before the board, if he'd gotten the hearing, which he would have, would have given him the opportunity to show that the records were inaccurate, right?

[00:22:13] Speaker 02:
That is correct.

[00:22:14] Speaker 02:
And actually, in the...

[00:22:18] Speaker 02:
And we cite some of these regulations in our supplemental brief.

[00:22:23] Speaker 02:
There are processes and rules whereby, for example, if a veteran needs more time to perfect a claim, to request a hearing, to gather evidence, to get representation, a veteran can ask for more time, an extension.

[00:22:40] Speaker 02:
And this is under a good cause standard.

[00:22:45] Speaker 02:
So a stay, which is a complete cessation of adjudication, is not the only available tool for a veteran.

[00:22:55] Speaker 02:
A veteran can make a request if they need more time, if they're having health problems.

[00:23:01] Speaker 02:
There are existing rules which allow for that.

[00:23:07] Speaker 03:
And I think that you said... What happens in this case where, if I understand Mr. Gross's argument, it is that he was not unwilling to cooperate.

[00:23:19] Speaker 03:
It's that he couldn't cooperate because the appointments were 250 plus miles from his home and he had no means of getting there.

[00:23:28] Speaker 03:
Just out of curiosity, I understand that's not exactly the issue in front of this court today.

[00:23:33] Speaker 03:
But what does the VA do generally in situations like this when you have potentially a veteran who isn't capable of traveling and you tell him he has to, in order to get these benefits, come to a consultation 250 miles away?

[00:23:47] Speaker 03:
What would normally happen?

[00:23:49] Speaker 03:
How does it normally operate?

[00:23:53] Speaker 02:
My understanding, which may be somewhat limited, is that the decision, for example, to put him in discontinued status was not actually made by the board.

[00:24:07] Speaker 02:
It was made by the regional office.

[00:24:09] Speaker 02:
And as I understand the VRE process, in answer to your question, I think they try to work with the veteran.

[00:24:23] Speaker 02:
I would imagine they would try to arrange transportation, because many veterans have mobility problems.

[00:24:34] Speaker 02:
My understanding is that the VA tries to go out of its way to assist the veteran in this process.

[00:24:43] Speaker 03:
I have probably a very dumb question.

[00:24:46] Speaker 03:
He is seeking vocational rehabilitation and employment benefits.

[00:24:50] Speaker 03:
What are those?

[00:24:52] Speaker 03:
They were training.

[00:24:53] Speaker 03:
They were helping him ready himself for an employment situation, not just money.

[00:25:00] Speaker 03:
This isn't like a TDIU situation where we're deciding whether you're employable, and we're deciding you're not, and therefore we're going to give you money as a result.

[00:25:08] Speaker 03:
These are benefits to help prepare a veteran to engage in productive employment.

[00:25:14] Speaker 03:
Is that right?

[00:25:16] Speaker 02:
Yes.

[00:25:16] Speaker 02:
That's my understanding is that the veteran meets with the counselor.

[00:25:21] Speaker 02:
They set goals.

[00:25:22] Speaker 02:
So it could be a vocational goal to get training, for example, to obtain some type of gainful employment.

[00:25:33] Speaker 02:
Part of the VARE program can include payment for that type of training.

[00:25:38] Speaker 02:
It can be educational goals.

[00:25:40] Speaker 02:
So it's working with a counselor to set goals.

[00:25:45] Speaker 02:
And it's a process, a cooperative process

[00:25:50] Speaker 02:
where the veteran works with a guidance counselor.

[00:25:54] Speaker 03:
But it seems inherently unreasonable to imagine that any veteran would be expected to travel 250 miles to meet with this counselor you're describing.

[00:26:05] Speaker 03:
It wouldn't be a one-time meeting.

[00:26:07] Speaker 03:
It would be sort of a continuing dialogue about how to support the veteran.

[00:26:11] Speaker 03:
And it just seems inherently unreasonable to suggest 250 miles one way, even if this veteran is in perfect health.

[00:26:19] Speaker 03:
to expect them, in order to be able to avail themselves of these benefits, to travel 250 miles each way, one way there and one way back, to have this meeting with a counselor, that just seems really bad.

[00:26:34] Speaker 02:
Well, I'm not sure that's the board in its decision.

[00:26:41] Speaker 02:
And as the Veterans Court relayed these facts,

[00:26:49] Speaker 02:
As they explained it, over a 20-year period, this was discontinued because Mr. Groves failed to cooperate.

[00:27:00] Speaker 02:
The record is not established that he's trying.

[00:27:05] Speaker 02:
It's too far to drive.

[00:27:07] Speaker 02:
He couldn't do it for that reason.

[00:27:11] Speaker 02:
The record is that he's not cooperating with this process.

[00:27:16] Speaker 02:
He's got some kind of other agenda.

[00:27:18] Speaker 02:
And this was ongoing for an extensive period of time.

[00:27:22] Speaker 03:
I've kind of taken you off case.

[00:27:24] Speaker 03:
Let me bring you back for a second and ask you.

[00:27:26] Speaker 03:
Suppose that I were to agree with you that the standard the court applied and the way in which they're reading their own Hamilton decision isn't appropriate.

[00:27:37] Speaker 03:
and that the standard that the government is advocating for, in which the board has discretion, is, in fact, the correct standard, merit-deferring discretion.

[00:27:45] Speaker 03:
Does that mean I have to vacate and remand this case?

[00:27:48] Speaker 03:
Or does that mean, in your view, I would affirm this case?

[00:27:51] Speaker 03:
Because despite the fact that the standard was wrong, the CAVC ultimately concluded there was harmless error nonetheless.

[00:28:00] Speaker 03:
So what is your view, if I agree with you, that there is a problem with the legal standard that was being applied at the board level

[00:28:07] Speaker 03:
What is the consequence to this case?

[00:28:13] Speaker 02:
I believe that the court's question as to the appropriate legal standard.

[00:28:20] Speaker 02:
Does Hamilton set forth an automatic state requirement or not?

[00:28:25] Speaker 02:
Or is the concurrence correct?

[00:28:27] Speaker 02:
I believe that's a pure question of law.

[00:28:29] Speaker 02:
And I believe that this court can decide that.

[00:28:35] Speaker 01:
Right.

[00:28:36] Speaker 01:
But do we have to remand to have the Veterans Court apply the new and correct standard?

[00:28:45] Speaker 01:
Or can we simply affirm on the ground that Mr. Groves has failed to show harmful error from the denial of a stay because he never made an effort to present additional evidence or indicated that he had additional evidence to present?

[00:29:03] Speaker 02:
Yeah, that's a good question that we have thought about.

[00:29:07] Speaker 02:
Remand typically or often is to address some factual situation.

[00:29:12] Speaker 02:
I don't think we really have that to set forth a legal standard.

[00:29:18] Speaker 02:
If the court can decide this without remand and setting forth what the correct standard is, we think it's the concurring opinion.

[00:29:27] Speaker 03:
Yes, but we set forth the correct standard.

[00:29:29] Speaker 03:
It's not our job to then apply it to the facts of the case in the first instance, right?

[00:29:33] Speaker 03:
we have extremely narrow jurisdiction, especially in veterans cases.

[00:29:38] Speaker 03:
So if the correct standard is the board has discretion, inherent authority, you would like me to exercise that for them in the first instance on appeal?

[00:29:47] Speaker 02:
Yes, ma'am.

[00:29:48] Speaker 02:
Yes, ma'am.

[00:29:49] Speaker 02:
I think that would be appropriate to remand setting forth the correct standard in answer to your question.

[00:29:55] Speaker 03:
And so you don't think then that the harmless error

[00:29:59] Speaker 03:
determination by the Veterans Court sort of supersedes a need to remand?

[00:30:09] Speaker 02:
Well, we think the result is correct and that's why it was a concurrent opinion.

[00:30:16] Speaker 02:
Judge Bartley thought the result was correct.

[00:30:20] Speaker 02:
There is no harmless error.

[00:30:21] Speaker 02:
Even now,

[00:30:22] Speaker 02:
There is no harmless error.

[00:30:24] Speaker 03:
What do you say?

[00:30:24] Speaker 03:
There is no harmless error.

[00:30:27] Speaker 03:
You realize what you're saying is, by two negatives, no harmless error.

[00:30:31] Speaker 03:
You're saying that there is, in fact, harmful error.

[00:30:34] Speaker 03:
Oh, I'm sorry.

[00:30:35] Speaker 02:
Yes.

[00:30:36] Speaker 02:
Yeah.

[00:30:37] Speaker 02:
But my point is, this is a VRE claim.

[00:30:41] Speaker 02:
And actually, it's in discontinued status.

[00:30:46] Speaker 02:
Mr. Groves can actually come back and reapply for the VRE benefit.

[00:30:52] Speaker 02:
This may entail that he demonstrate to VA that he's going to be cooperative.

[00:31:00] Speaker 02:
It may require approval of a psychologist.

[00:31:03] Speaker 02:
But ultimately, it's a discontinued status.

[00:31:07] Speaker 02:
He can apply to get it into.

[00:31:10] Speaker 01:
OK, but the question is, can we affirm in this case if we find that the standard was wrong and that the standard should be abusive discretion and multi-factor test?

[00:31:22] Speaker 01:
Can we nonetheless affirm on the ground that Mr. Groves, according to the Veterans Court, didn't show harmful error?

[00:31:33] Speaker 01:
Or do we have to remand to have the Veterans Court and the board consider this case under the correct standard?

[00:31:44] Speaker 02:
Yes.

[00:31:45] Speaker 02:
If the court finds that the panel decision

[00:31:49] Speaker 02:
wrongly decided the Hamilton standard.

[00:31:52] Speaker 02:
And if the court agrees, let's say, with the government that it was the concurrent opinion, a remand with that direction would be appropriate.

[00:32:05] Speaker 03:
Anything further?

[00:32:06] Speaker 03:
No, definitely not.

[00:32:08] Speaker 03:
All right, let's move on.

[00:32:08] Speaker 02:
So thank you for the court's questions.

[00:32:10] Speaker 02:
Thank you.

[00:32:17] Speaker 00:
Thank you, Your Honor.

[00:32:18] Speaker 00:
We agree with the government that a remand is appropriate in this case.

[00:32:24] Speaker 00:
We would need to vacate and remand because there can be no harmless error when he did not know the standard that he needed to meet.

[00:32:34] Speaker 00:
So Mr. Groves applied Hamilton.

[00:32:36] Speaker 03:
He quoted the exact... I don't understand how that can be the case.

[00:32:39] Speaker 03:
The lower tribunal found, the CABC found,

[00:32:44] Speaker 03:
that the board was required to grant him the stay.

[00:32:48] Speaker 03:
And then they found, nonetheless, despite that requirement, which wasn't met, there was harmless error.

[00:32:55] Speaker 03:
If we come along and say the board wasn't actually even required to grant it, what we've actually done is made the standard more difficult for the veteran, not less difficult.

[00:33:07] Speaker 03:
So how is there harmless error?

[00:33:10] Speaker 03:
I mean, how is there prejudicial error at that point in time when

[00:33:14] Speaker 03:
What we've actually done is changed the standard in a way that is to the detriment of the veteran.

[00:33:20] Speaker 03:
How in the world, if he didn't satisfy the prejudicial error standard when the standard was higher, can he meet it when the standard for him is now less advantageous?

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

[00:33:34] Speaker 00:
And the changing standard or changing the goalpost, which he thought he needed to meet.

[00:33:40] Speaker 00:
So he had a 2012 decision that

[00:33:44] Speaker 00:
the Veterans Court recognized his requests to stay and said that without further authorization, any decision would be void ab initio.

[00:33:55] Speaker 00:
And they said that the appeal must be dismissed because of that.

[00:34:00] Speaker 00:
So here he is making two similar requests based on the standard in Hamilton.

[00:34:06] Speaker 00:
And he should be provided the opportunity to meet whatever standard is articulated by this court.

[00:34:12] Speaker 01:
Okay, but if we're changing the standard in Hamilton with respect to what you need to show to get a stay, we are not changing the standard for harmless error.

[00:34:24] Speaker 01:
It's always been clear that the burden to show prejudicial error would be here on the veteran, correct?

[00:34:33] Speaker 01:
Right?

[00:34:34] Speaker 01:
Yes.

[00:34:35] Speaker 01:
Okay.

[00:34:35] Speaker 01:
And so far as I can tell, he didn't make any showing that the error was prejudicial.

[00:34:43] Speaker 00:
Because at the time, there was no such standard that required him to do so.

[00:34:48] Speaker 01:
No, there was.

[00:34:49] Speaker 01:
Hamilton didn't change the fact that it's a harmless error standard.

[00:34:56] Speaker 01:
Hamilton just articulated a standard for a stay, which was incorrect.

[00:35:02] Speaker 01:
But whether his argument is that he should have gotten a stay under Hamilton or he should have gotten a stay under the new standard,

[00:35:10] Speaker 01:
we might articulate in this case, in any event, he has to show that there's harmful error from the denial of a stay.

[00:35:18] Speaker 01:
And I don't see that he ever made any effort to show harmful error.

[00:35:23] Speaker 01:
That's the problem.

[00:35:25] Speaker 01:
And that's what the Veterans Court said.

[00:35:27] Speaker 01:
He didn't show harmful error.

[00:35:30] Speaker 01:
So that's not a change in the stay standard.

[00:35:35] Speaker 01:
We're just would be applying the existing harmless error standard, which existed

[00:35:39] Speaker 01:
before Hamilton, during Hamilton, after Hamilton.

[00:35:45] Speaker 00:
And the court is required to give process plaintiffs a sympathetic reading of their appeals.

[00:35:52] Speaker 00:
So in this case, a sympathetic reading would be understanding that he attempted to articulate the standard of a stay, that he did not understand the requirements for that.

[00:36:05] Speaker 00:
and that what was needed to show harmless error or harmful error.

[00:36:12] Speaker 00:
Therefore, it would be prudent to remand this case and to give him the opportunity to articulate that new standard.

[00:36:22] Speaker 00:
Your Honor, I see that my time is up.

[00:36:24] Speaker 00:
Are there any further questions?

[00:36:26] Speaker 03:
No, Counsel.

[00:36:28] Speaker 03:
This case is taken under submission.

[00:36:30] Speaker 03:
I just want to say, it's not very often that we request argument in a case that is uncounseled, a submitted case.

[00:36:39] Speaker 03:
And you could see by the nature of the many questions today that this case was difficult and challenging, which is why we asked for argument.

[00:36:47] Speaker 03:
I just wish you'd both come a bit more prepared for it.

[00:36:51] Speaker 03:
Thank you.