[00:00:00] Speaker 01: Ms. [00:00:00] Speaker 01: Odom. [00:00:03] Speaker 01: Thank you, Judge Newman, and may it please the court. [00:00:06] Speaker 01: I'm Amy Odom. [00:00:07] Speaker 01: I represent Mrs. Kennedy. [00:00:09] Speaker 01: The Veterans Court aired on page 12 of the appendix when it held that nothing in the law established the delegation of authority to issue fast letter with a liberalizing law from the secretary to the director of pension and fiduciary services. [00:00:29] Speaker 01: Section 2.6 and the presumption of regularity are the two laws that establish this delegation of authority. [00:00:38] Speaker 01: This was a legal error, misinterpretation of 2.6, coupled with reliance on an erroneous rule of law. [00:00:47] Speaker 01: The misinterpretation of 2.6 lies in the Veterans Court's holding that only the principal deputy undersecretary for benefits could give the director of pension and fiduciary service [00:00:59] Speaker 01: the authority to issue the fast letter. [00:01:01] Speaker 01: That's simply not true. [00:01:02] Speaker 01: The undersecretary of benefits can bypass the principal deputy undersecretary of benefits and authorize the director of pension and fiduciary services directly to issue a rule like we see in the fast letter. [00:01:15] Speaker 04: Are you maintaining your argument about the meaning of a VA issue, whether a VA issue has to be binding on the VA? [00:01:23] Speaker 01: Yes, Your Honor. [00:01:24] Speaker 01: There were two errors of law here. [00:01:26] Speaker 01: The first was [00:01:28] Speaker 01: what the parties principally dispute, which is whether the director of pension and fiduciary services had delegated authority to issue the FAFSA letter. [00:01:37] Speaker 01: The second error of law was the Veterans Court's interpretation of 3.114A, the term issue, to mean only rules that are binding on the agency as a whole, including the board. [00:01:48] Speaker 01: I can start with that error if that's what the court is principally interested in. [00:01:55] Speaker 01: Please do talk about it. [00:01:57] Speaker 01: Section 3.114A aims to remedy the unfairness that arises when the VA is unable to grant a benefit under the current laws and a new rule is issued that then allows the VA to grant the benefit. [00:02:15] Speaker 01: And that's exactly what happened here. [00:02:17] Speaker 01: So whether the unfairness arises doesn't depend on whether the [00:02:23] Speaker 01: rule is binding on the board or other parts of the VA. [00:02:27] Speaker 01: It's really whether it's binding on the line adjudicators, the adjudicators who make the determination in the first instance. [00:02:33] Speaker 01: And here, there's no dispute that it was. [00:02:35] Speaker 00: Well, Castle, is your interpretation of the VA issue that you just mentioned consistent with what you said to the Veterans Court? [00:02:41] Speaker 00: I thought there was some inherent inconsistency here. [00:02:44] Speaker 01: Well, yes, Your Honor. [00:02:45] Speaker 01: We argued to the Veterans Court in supplemental briefing after the oral argument that a VA issue is something that has to be binding. [00:02:53] Speaker 01: We never suggested that it had to be binding on the board or in the agency as a whole. [00:02:57] Speaker 01: What we meant by binding means it couldn't just be like a memo from an RO adjudicator to his buddies saying, this is how I think we should decide the cases. [00:03:06] Speaker 01: It has to come from a place of apparent authority. [00:03:09] Speaker 01: There is no real dispute here that the director of pension and fiduciary service, the head of the part of the VA that's responsible for administering the DIC department, [00:03:19] Speaker 01: had apparent authority to issue guidance and rules to the adjudicators on the front line. [00:03:26] Speaker 01: That's exactly what they've done here with this rule. [00:03:29] Speaker 01: And in fact, taking a step back and looking at the big picture here, VA continues to follow this rule this day. [00:03:38] Speaker 01: They've incorporated it into the M21, the VA adjudication procedures manual. [00:03:42] Speaker 01: The current director, six months after the Veterans Court's decision here, [00:03:48] Speaker 01: made clear that she did so at the undersecretary's direction. [00:03:54] Speaker 01: And like the Veterans Court found, the approved by the secretary part of 3.114 can be established through delegations of authority. [00:04:05] Speaker 01: And so when the director of pension and fiduciary service said in the M21, I'm doing this at the undersecretary's direction, [00:04:13] Speaker 01: That in itself shows that VA has continued to follow the rule, that it's an authoritative rule, and that it's exactly the kind of rule that 3.114A is aimed at. [00:04:25] Speaker 00: How would you have us interpret the phrase VA issue? [00:04:29] Speaker 01: VA issues any directive. [00:04:31] Speaker 01: It's a rule of general applicability. [00:04:34] Speaker 01: So it need not be binding? [00:04:36] Speaker 01: It need not be binding on the whole of VA. [00:04:39] Speaker 01: It does need to be binding on [00:04:42] Speaker 01: VBA adjudicators, which it is, say, it's just like the M21. [00:04:46] Speaker 01: The NOVA case says that... Did you argue that below? [00:04:51] Speaker 04: I'm just, I'm having a hard time, because honestly, I looked at your brief, and you have several different iterations of how to interpret it. [00:05:01] Speaker 04: Binding on the board, binding on the relevant part of the VA, and there's some that just say, doesn't have to be binding, and then there's [00:05:11] Speaker 04: And your papers below just say binding on the VA. [00:05:16] Speaker 04: I'm just struggling a little bit. [00:05:17] Speaker 01: Well, by binding with the VA, perhaps it was an inartful way to say it has to be binding on the VA adjudicators. [00:05:25] Speaker 01: We know already that certain guidance documents, such as the M21, are not binding on the board. [00:05:30] Speaker 01: They're not binding on the whole VA. [00:05:32] Speaker 01: But they are binding on the line adjudicators. [00:05:35] Speaker 01: And so in NOVA, this court explained that the rules of general applicability in that they [00:05:44] Speaker 01: They control the outcome of the adjudication of a claim. [00:05:47] Speaker 01: And here there's no dispute. [00:05:48] Speaker 01: And in fact, the record demonstrates clearly that the fast letter rule controlled the outcome of the adjudication of this claim. [00:05:56] Speaker 01: Mrs. Kennedy was denied three times before the issuance of this fast letter. [00:06:01] Speaker 01: And then based on the fast letter, VA granted the claim the fourth time. [00:06:07] Speaker 01: This is true even though there was even a negative nexus opinion in the record during the prior denials. [00:06:15] Speaker 01: And NOVA came out after the supplemental briefings here, which made clear that even if a rule isn't binding on the board, it may still be an authoritative rule in that it's a rule of general applicability that controls the outcome of an adjudication of a claim. [00:06:32] Speaker 01: So as we explained on page 15 of our reply brief, [00:06:37] Speaker 01: It was the Veterans Court who added that extra step that it also has to be binding on the board. [00:06:42] Speaker 01: And that's inconsistent even with VA's own regulations, which provide that VA issues are not binding on the board. [00:06:49] Speaker 01: So under that logic, there could never be a VA issue that would qualify under 3.114A, because no VA issues are ever binding on the board. [00:07:01] Speaker 05: But for this case, is it correct that [00:07:04] Speaker 05: What you're asking for, the only relief you're now asking for is one year retroactivity. [00:07:11] Speaker 01: Right. [00:07:11] Speaker 01: We're asking for application 3.114A so that Mrs. Kennedy gets that extra year of benefits. [00:07:18] Speaker 05: And so there is no relevance to the previous petitions and denials. [00:07:26] Speaker 05: I'm sorry. [00:07:27] Speaker 05: Can you repeat that? [00:07:28] Speaker 05: There is much in the record before us as to the procedures that got us to this stage. [00:07:37] Speaker 05: But now to understand what is in fact before this court, it's the one year. [00:07:44] Speaker 01: Yes, Your Honor. [00:07:45] Speaker 01: Yes, Your Honor. [00:07:46] Speaker 01: I mentioned the prior denials to show that this rule was something that really did affect the outcome of the adjudication of this claim in all DIC claims. [00:07:55] Speaker 05: You're relying on the prior denials as support for retroactivity? [00:08:02] Speaker 01: The prior denials show that this fast letter, which the VA conceded is the only reason why they granted the claim, was in fact a rule of general applicability that dictated the outcome of the adjudication of this claim. [00:08:17] Speaker 01: It's not something that was, you know, [00:08:21] Speaker 01: a memo from, like I said, one RO adjudicator to another suggesting how we might be able to adjudicate these claims. [00:08:30] Speaker 01: It was an authoritative directive from the director of pension and fiduciary services that controlled the outcome of the claim. [00:08:41] Speaker 04: Did you at any point try to let the [00:08:47] Speaker 04: Does Veterans Court understand that when you were saying binding on the VA, you only meant binding on the VA adjudicators? [00:08:58] Speaker 01: Well, we argued. [00:08:59] Speaker 01: I don't have the full supplemental brief before me, but we did argue. [00:09:03] Speaker 04: It's in the appendix. [00:09:06] Speaker 01: Yeah, there's partial of our supplemental briefs. [00:09:09] Speaker 01: And we did argue that the general counsel opinion saying that M21 provisions are not binding was actually incorrect because they do come from the direction of the undersecretary for benefits and that therefore any determination that the fast letter couldn't count as an issue under 3.114 because it was not binding on the board. [00:09:37] Speaker 01: was incorrect. [00:09:39] Speaker 01: We did argue below that it was a... That's a different argument though, right? [00:09:43] Speaker 01: I mean, it's different because there you're arguing, no, no, this is binding on the... Well, we did argue that it could be an instruction of the secretary under 7104, the fast letter, and the M21. [00:09:55] Speaker 01: But like I said, after the supplemental briefs came out, I think only like two days before the veteran's court's decision came out, NOVA came out, that said that in [00:10:07] Speaker 01: even though it's not binding on the board, a rule can be determinative of the adjudication of the claim. [00:10:15] Speaker 01: And so when we're looking at 3.114, that's really what counts is whether the rule dictates the outcome of the claim, not whether it's binding on the board or whether it's binding on other parts of the VA, for example, the Veterans Health Administration. [00:10:32] Speaker 01: The way that the Veterans Court's rule and interpretation of 3.114 goes, the logical conclusion is that it's not a VA issue under 3.114 unless it's binding on the Veterans Health Administration. [00:10:45] Speaker 01: It's got to be binding on the agency as a whole. [00:10:48] Speaker 01: But why would a rule about retroactive benefits have anything to do with the Veterans Health Administration? [00:10:54] Speaker 00: We also... Can you explain to me why NOVA would impact the meaning of VA issue here? [00:11:01] Speaker 01: NOVA impacts the meaning of VA issue insofar as it defines what a rule of general applicability is and how it affects VA adjudication. [00:11:12] Speaker 01: So NOVA made clear that it does not have to be binding on the board to actually affect a veteran's or a claimant's substantive rights and dictate the outcome of a claim. [00:11:22] Speaker 01: And that, again, is what 3.114A is concerned with, rules that the agency issues [00:11:30] Speaker 01: whether formally or informally, that dictate the outcome of a claim. [00:11:35] Speaker 01: And whether it's binding on the board or not has no impact on whether it's going to dictate the outcome of a claim because it's binding on the RO adjudicators. [00:11:47] Speaker 01: We also did point in our brief to many instances in which the board itself has applied the rule, noting explicitly that [00:11:56] Speaker 01: in some cases noting explicitly that even though it wasn't binding on it, the board itself, it was binding on RO adjudicator, so the board then felt compelled to apply it. [00:12:09] Speaker 00: If we find that your challenge to the Veterans Court's interpretation of VA issue fails, could you still prevail in this appeal? [00:12:21] Speaker 01: I think that if we can prevail on the delegated authority issue, we can still prevail. [00:12:27] Speaker 01: Because if we're correct that this rule was issued at the secretary's approval, then it's necessarily binding to the extent that it needs to be. [00:12:40] Speaker 01: RO adjudicators and other employees of the VA must follow the secretary's directions. [00:12:49] Speaker 01: And so if the secretary [00:12:51] Speaker 01: or if the secretary through the director of pension of fiduciary services has approved this rule, I don't see how someone can say that it's not an issue, a VA issue that... Because it's binding on the VA? [00:13:06] Speaker 01: Because it's binding on the adjudicators. [00:13:10] Speaker 04: Well, that's presuming that we agree with you on that issue, right? [00:13:15] Speaker 04: That's presuming that you are successful on the meaning of issue. [00:13:20] Speaker 04: as you've argued before this court. [00:13:24] Speaker 01: It's presuming that we prevail on the delegation issue, because otherwise the court would be saying even though this was issued at the secretary's direction, it's not a VA issue because it's not binding on anybody. [00:13:39] Speaker 01: But we think that the binding rule itself is incorrect. [00:13:43] Speaker 01: The binding interpretation, the interpretation 3.114A, [00:13:46] Speaker 01: that it has to be binding on the agency as a whole is incorrect. [00:13:49] Speaker 04: What if we agree with the government that traditionally it stopped from making the argument about what an issue is because below you argued that the issue had to be binding on the VA. [00:14:00] Speaker 04: Then do you have other arguments that would allow you to succeed on a field? [00:14:11] Speaker 01: Well, again, I lean back on I can't see how something that comes from the secretary or approved by the secretary isn't something that 3.114 speaks directly to. [00:14:23] Speaker 01: And again, I would say that we did not argue that it has to be binding on the agency as a whole. [00:14:34] Speaker 01: We argued that it has to be binding on VA, meaning it can't just be [00:14:40] Speaker 01: some informal memo coming from adjudicator. [00:14:43] Speaker 01: It has to be an authoritative document, which is what this was. [00:14:52] Speaker 01: And I see I'm into my rebuttal time. [00:14:59] Speaker 05: Thank you. [00:15:21] Speaker 05: Okay. [00:15:22] Speaker 05: We can see you. [00:15:23] Speaker 05: Can you see us all right? [00:15:24] Speaker 02: I can see your honors. [00:15:27] Speaker 02: Yes. [00:15:28] Speaker 02: Thank you. [00:15:28] Speaker 02: Can you hear me all right? [00:15:30] Speaker 05: Yes. [00:15:30] Speaker 05: All right. [00:15:31] Speaker 05: Ms. [00:15:31] Speaker 05: Fomenkova for the secretary. [00:15:33] Speaker 05: Please proceed. [00:15:35] Speaker 02: Good morning. [00:15:35] Speaker 02: May it please the court. [00:15:38] Speaker 02: In this case, the Veterans Court agreed with Mrs. Kennedy on the legal question, the interpretation of what 3.114 requires in order to have a VA issue approved [00:15:50] Speaker 02: or directed by the secretary. [00:15:53] Speaker 02: Where the veterans' courts disagree with Mrs. Kennedy is on the application of that interpretation to this fast letter at issue. [00:16:02] Speaker 02: And that question fundamentally is beyond the scope of this court's review. [00:16:06] Speaker 02: The court reviews legal interpretations. [00:16:09] Speaker 02: It does not review the application of that interpretation to the facts. [00:16:14] Speaker 02: And I want to address upfront the question that was addressed with Ms. [00:16:19] Speaker 02: Odom. [00:16:19] Speaker 02: as to whether or not she argued below that it needed to be binding. [00:16:23] Speaker 02: She absolutely did. [00:16:25] Speaker 02: And we see that at appendix pages 79, 83, and 87. [00:16:28] Speaker 02: She argued that it had to be directed from or approved by the secretary and is binding on VA, period. [00:16:38] Speaker 02: And specifically argued that it was binding on the board because it was an instruction to the secretary on appendix page 83. [00:16:46] Speaker 02: And again, on appendix page 87. [00:16:48] Speaker 02: whether she sort of subjectively intended that to be a more limited argument. [00:16:54] Speaker 02: I think the objective evidence... I'm sorry. [00:16:57] Speaker 04: I'm trying to catch up with you. [00:16:58] Speaker 04: Did you say on page A83? [00:17:00] Speaker 04: 83, yes. [00:17:01] Speaker 04: 83. [00:17:04] Speaker 04: Can you identify, maybe just a little slower, where you're looking at on that page? [00:17:11] Speaker 02: Yeah. [00:17:13] Speaker 02: It's the paragraph that starts on page appendix 83. [00:17:17] Speaker 02: it says further under 38 USD section 7104C fast letter 1304 is binding on the board because it is an instruction of the secretary. [00:17:27] Speaker 02: Thank you. [00:17:30] Speaker 02: And again, the same argument is repeated on page 87 of the appendix. [00:17:35] Speaker 02: At the very top of that page, she argues an instruction from the secretary that the substance of the nature, the board was bound by it. [00:17:43] Speaker 02: So I think there's no question. [00:17:45] Speaker 04: So it's your view then that because of [00:17:47] Speaker 04: You know, when it was suggested that binding on the board means something, I mean, binding on the VA means something less than binding on the board, that a person reading this brief would not understand that, given these two sentences that you've given us at page A83 and A87. [00:18:07] Speaker 02: I think that's right. [00:18:08] Speaker 02: I think that the objective interpretation of the briefing below is that he argued that it was binding on the board, and certainly the Veterans Court [00:18:17] Speaker 02: That's how the Veterans Court understood her argument and explicitly on Appendix Page 9 adopted, said that it was adopting her interpretation on the legal question. [00:18:31] Speaker 02: The Veterans Court said, we agree with the appellant scenario or definition of the term VA issue. [00:18:37] Speaker 02: However, we disagree with her application of that definition to Fact Letter 1304. [00:18:41] Speaker 02: And I want to talk a little bit through [00:18:46] Speaker 02: specifically on her argument that I think collapses authority into approval here. [00:18:52] Speaker 02: Her argument is that sort of establishes a binary, that either something is ultra-virus and unauthorized, or it is necessarily approved by the secretary. [00:19:03] Speaker 00: And this regulation, and he accepted... If we agree to affirm, can we do it without reaching whether the FAST letter was issued with the approval of the secretary? [00:19:13] Speaker 00: Do we need to reach that issue? [00:19:17] Speaker 02: I think no. [00:19:20] Speaker 02: We argued that that was sufficient and the court doesn't need to reach the binding question. [00:19:25] Speaker 02: But I think conversely, if the court agrees that Mrs. Kennedy has waived the sort of suggestion that it need not be binding on the entire VA, then that is also a separate and independent reason why it can be affirmed. [00:19:40] Speaker 02: And so I think sort of either from is [00:19:43] Speaker 02: is an independent lever that can lead this court to approve, affirm the Veterans Court decision below. [00:19:52] Speaker 02: So she'd have to prevail on both in order to prevail. [00:19:58] Speaker 02: We only have to prevail on one in order to prevail. [00:20:02] Speaker 00: What's your interpretation of VA issue? [00:20:04] Speaker 00: I just want to get that out for completeness. [00:20:07] Speaker 02: So the VA issue is, I think it's the same definition that the secretary offered below. [00:20:14] Speaker 02: and the veteran court identifies on appendix page eight, it's any document issued from VA, its administrations or other staff offices. [00:20:25] Speaker 02: And the point that I was getting to is that VA, its practice, it recognizes the possibility that you can have VA issues that have been approved by the secretary and other VA issues that have not been approved by the secretary. [00:20:40] Speaker 02: And that's why the language in this regulation is meaningful. [00:20:43] Speaker 02: that it identifies that you have to have a VA issue. [00:20:47] Speaker 02: But that VA issue has to also be approved by the secretary. [00:20:50] Speaker 02: And so Mrs. Kennedy's arguments about authority and that sort of presumption of regularity means that this was a VA issue. [00:21:01] Speaker 02: It was not issued by the director as an ultra-virus action. [00:21:05] Speaker 02: It was a John Smith issue. [00:21:06] Speaker 02: It was a VA issue. [00:21:08] Speaker 02: But it requires also approval by the secretary. [00:21:12] Speaker 04: I'm sorry, could you repeat that? [00:21:15] Speaker 04: It requires also? [00:21:17] Speaker 02: Approval by the secretary. [00:21:20] Speaker 02: But the regulation says that it must be a VA issue that is approved by the secretary or at the secretary's direction. [00:21:28] Speaker 02: And we see this distinction not only in this regulation, but, for example, in the manual provisions. [00:21:34] Speaker 02: The manual provisions are VA issues, but they're VA issues that have not been approved by the secretary. [00:21:40] Speaker 02: Historically, there have been other manuals that had some provisions that were approved by the secretary. [00:21:45] Speaker 02: That's identified in the VA general counsel opinion that we cite on pages 21 and 22 of our brief. [00:21:53] Speaker 02: It specifically draws this distinction. [00:21:55] Speaker 02: The VA used to have a general administrative manual that had a chapter that specifically had provisions that were approved by the secretary, and it clearly designated [00:22:06] Speaker 02: I mean, when the secretary approves something, it's not hidden. [00:22:10] Speaker 02: The VA has no incentive to play coy about that. [00:22:15] Speaker 02: It's clearly indicated on the face of the document that this is a VA issue that is not only authorized, but also specifically approved by the secretary. [00:22:24] Speaker 02: Excuse me. [00:22:29] Speaker 02: In this case, the fact that it's a VA issue means that Mrs. Kennedy did get these DIC benefits, and we're not disputing that she's allowed and entitled to those DIC benefits now, in part as a result of the procedures that were in this past quarter. [00:22:43] Speaker 02: But in order to get a retroactive effective date, that regulation requires that it not only be a VA issue, but that that VA issue be approved by the Secretary. [00:22:54] Speaker 02: And that's the piece that the Veterans Court found was missing here. [00:22:59] Speaker 02: sort of the regulations that Mrs. Kennedy points to on appeal, section 2.6, that doesn't establish that approval. [00:23:09] Speaker 02: And the presumption of regularity does not establish that approval. [00:23:11] Speaker 02: That establishes that it's a VA issue, but not that it's a VA issue that was approved by the secretary. [00:23:17] Speaker 02: And I want to note sort of two other things in particular based on her argument today. [00:23:24] Speaker 02: You know, she referenced apparent authority all the time. [00:23:28] Speaker 02: That's not a thing in the government. [00:23:30] Speaker 02: The government doesn't operate in a world of apparent authority. [00:23:32] Speaker 02: The government operates in a world of actual authority. [00:23:35] Speaker 02: And so I think it's telling that her argument is based on apparent authority, because that's just not a thing that exists when we talk about authority in the government. [00:23:46] Speaker 02: And the second thing I wanted to clarify was her reliance on NOVA. [00:23:50] Speaker 02: I think NOVA has nothing to do with this case, respectively. [00:23:53] Speaker 02: The sort of whether or not a manual provision that hasn't been approved by the secretary may still nevertheless be subject to direct review in this court under Section 502. [00:24:05] Speaker 02: That was what Nova was answering, and that's a separate question. [00:24:10] Speaker 02: That direct review did not require it to be approved by the secretary, and this court found that the fact that it wasn't approved by the secretary was therefore not dispositive. [00:24:19] Speaker 02: But this regulation plainly does require approval by the secretary. [00:24:24] Speaker 02: And so the fact that Mrs. Kennedy recognizes that manual provisions or this pass letter, the VA has issues that are not approved by the secretary, that is the determinative question under this regulation. [00:24:40] Speaker 02: And so respectfully, Nova, I think it's [00:24:43] Speaker 02: the Veterans Court correctly held sort of just tangential to the issues that were raised in this case and the issue that is being interpreted here. [00:24:55] Speaker 02: So happy to answer any other questions from the court, but I think our bottom line is that, you know, the Veterans Court adopted Mrs. Kennedy's interpretation on the legal question, which is subject to this court's review, and therefore she can't now claim error in sort of [00:25:13] Speaker 02: that the Veterans Court adopted the thing that he urged them to adopt. [00:25:17] Speaker 00: So counsel, are you arguing for a judicial stopple here? [00:25:20] Speaker 00: I just want to make sure I have a full correct understanding of your argument. [00:25:25] Speaker 02: I mean, I think that there is sort of a number of prudential doctrines that the court has adopted over the years that amount to this idea that if you were the reason that this was the court adopted [00:25:40] Speaker 02: this or did this, that you can't then come in and claim error in what you yourself urge the court to do. [00:25:47] Speaker 02: So I think that sort of to the extent that the court reaches the binding question, Mrs. Kennedy does have a problem with advancing error there, given that it's sort of a direct about space to what she argued below and whether that, you know, we call that traditional software, we call that waiver. [00:26:03] Speaker 02: I think there are different things that the court can call it that [00:26:07] Speaker 02: land in the same place that you just can't do that. [00:26:12] Speaker 02: But alternatively, that the court can also decide this issue just on the fact that there's no dispute that the regulation requires this approval. [00:26:22] Speaker 02: And Ms. [00:26:23] Speaker 02: Kenney doesn't dispute that even before this court. [00:26:27] Speaker 02: She agreed to that below, and she continues to agree to that here. [00:26:30] Speaker 02: And the application of that requirement in her regulation that everybody agrees exists [00:26:36] Speaker 02: um, you know, the veterans court found was not met here and, and frankly, sort of that application of law for disagreement with that application of law to facts is, is something that is, um, beyond the scope of this court's review. [00:26:49] Speaker 02: And that is, is an independent reason why the court can either dismiss this appeal or, or form the veterans court decision below. [00:26:58] Speaker 05: Well, I'm still having trouble drawing the line between all of these generalizations and this particular case. [00:27:06] Speaker 05: that the petition was finally granted. [00:27:08] Speaker 05: It was identical to the petition that had been denied three previous times. [00:27:16] Speaker 05: Where should the line be drawn in terms of entitlement? [00:27:25] Speaker 02: is that she is entitled to DIC benefits and she has those and there's no dispute that she will continue to receive DIC benefits. [00:27:32] Speaker 05: Entitlement has decided, yes, you're entitled. [00:27:35] Speaker 05: I'm just looking at the date from which the applications of entitlement are measured. [00:27:45] Speaker 05: Why shouldn't it go back to the petitions that were initially denied before the fast letter? [00:27:54] Speaker 02: So will you not go back to those petitions, Your Honor? [00:27:56] Speaker 02: And I don't think Mrs. Kennedy is arguing that we do. [00:27:59] Speaker 02: Those became final. [00:28:01] Speaker 02: Those previous claims, she did not appeal them. [00:28:04] Speaker 02: And so they became final. [00:28:06] Speaker 02: And so the general rule at VA and by statute is that your effective date is the date that you submit your new claim. [00:28:15] Speaker 02: And that's the effective date that she currently has. [00:28:18] Speaker 02: In order to get this retroactive effective date that's the exception to that rule, [00:28:23] Speaker 02: You have to have, you know, a liberalizing VA issue that is approved by the secretary. [00:28:30] Speaker 02: And so that's the piece that she doesn't have. [00:28:32] Speaker 02: So she got the DIC benefit that was an authorized fast letter. [00:28:35] Speaker 02: What she doesn't get is the exception to the effective date rule, an order to get it as much or less effective date, because this fast letter was not approved by the secretary as that exception requires. [00:28:51] Speaker 05: No, I agree. [00:28:52] Speaker 05: That is a very simple, straightforward answer. [00:28:56] Speaker 05: And meanwhile, we have all of these elaborate procedures ending up here discussing all sorts of aspects that don't apply to Mrs. Kennedy. [00:29:07] Speaker 05: And to look for the principles that the VA is establishing or the position that was taken, it's hard for me to see where [00:29:21] Speaker 05: The line would be drawn as a generalization as opposed to this particular case. [00:29:32] Speaker 02: I'm not sure I fully understand the court's question, but I'll try to answer it this way and you'll let me know if I don't address it. [00:29:40] Speaker 02: I think the line is that you have to have approval by the secretary. [00:29:44] Speaker 02: It has to be a VA issue that is approved by the secretary and the VA [00:29:50] Speaker 02: sort of recognizes that some VA issues are approved by the secretary and other VA issues are not. [00:29:57] Speaker 02: And so if you have a VA issue that has been approved by the secretary, then that might allow you to get a retroactive effective date. [00:30:05] Speaker 02: But if you don't have a VA, if your VA issue is not one that has been approved by the secretary, then you can't get a retroactive effective date as a result. [00:30:16] Speaker 02: I think that's the general principle. [00:30:21] Speaker 05: Okay, any more questions? [00:30:22] Speaker 05: Any more questions? [00:30:24] Speaker 05: Okay, thank you counsel. [00:30:48] Speaker 01: Okay, Ms. [00:30:49] Speaker 01: Odom. [00:30:51] Speaker 01: Thank you, Your Honor. [00:30:52] Speaker 01: So the government has conceded that this was a VA issue. [00:30:55] Speaker 01: That's what they said below as well. [00:30:57] Speaker 01: As we argued in our brief, that they were entitled to deference on that particular determination. [00:31:04] Speaker 01: But the Veterans Court never even addressed it. [00:31:06] Speaker 01: It just went on and made its own interpretation of 3.114A. [00:31:11] Speaker 01: So really, the principle dispute between the parties here at the Federal Circuit is whether it was approved by the Secretary. [00:31:18] Speaker 01: We agree with the Veterans Court's [00:31:21] Speaker 01: holding that approved by the secretary can be made through a delegation of authority. [00:31:27] Speaker 01: And then as we argued below, that delegation of authority is established here through two points through the statute giving the secretary [00:31:37] Speaker 01: the ability to delegate to the undersecretary of benefits. [00:31:43] Speaker 01: Then there's 2.6 where the secretary does just that and delegates all matters relating to veterans benefits to the undersecretary of benefits and permitting the undersecretary of benefits [00:31:56] Speaker 01: to then re-delegate that authority to any supervisory or adjudicatory employee. [00:32:04] Speaker 01: Then we look at the functional manual, and we see that the director of pension and fiduciary services is in charge of administering the DIC program, and it's the director who signed this fast letter. [00:32:19] Speaker 01: The presumption of regularity then steps in to presume that what appears regular is regular. [00:32:25] Speaker 01: The Supreme Court has held that when something appears regular and somebody does something in their official capacity, the law will presume that all acts that were necessary to give that person the authority have been done. [00:32:43] Speaker 01: The government hasn't offered any proof that the director did not have authority. [00:32:50] Speaker 01: or delegated authority to issue this rule. [00:32:53] Speaker 01: The Veterans Court pointed to nothing, showing that the director of pension and fiduciary services did not have authority to issue this rule. [00:33:01] Speaker 01: And in fact, the VA continues to apply it, has put it into the M21, and contrary to the government's position, has stated that the director did it at the undersecretaries for benefits [00:33:15] Speaker 01: direction. [00:33:16] Speaker 01: Under 2.6, that means it was done with the Secretary's approval according to the Veterans Court's holding that the approval can come from delegated authority. [00:33:27] Speaker 01: That's also at page 9 of the appendix. [00:33:35] Speaker 05: So if I agree with you, would you have any relief, any different from what you've obtained now? [00:33:43] Speaker 01: Yes, Your Honor. [00:33:44] Speaker 01: We would then get a remand for the Veterans Court to apply Ortiz and determine whether the rule was liberalizing. [00:33:50] Speaker 01: And if it is, then Mrs. Kennedy is entitled to an additional year of retroactive benefits under 3.114A. [00:34:03] Speaker 05: still the one year. [00:34:04] Speaker 05: One year, Your Honor. [00:34:05] Speaker 05: Which would then take us again to the issue that really just skirted about all of the rules about entitlement to benefits run from the date of application. [00:34:17] Speaker 01: Now under 5110G and 3.114A, there's an exception to that rule when the benefit has been granted based on a liberalizing VA issue. [00:34:29] Speaker 01: And so this case, [00:34:31] Speaker 01: If we are correct on the approval by the secretary and that it's liberalizing under the Ortiz standard, then Mrs. Kennedy would have the benefit of that exception and get an additional year of benefit. [00:34:44] Speaker 05: Okay. [00:34:44] Speaker 05: But still, that's a somewhat different question. [00:34:49] Speaker 05: Is it not? [00:34:50] Speaker 01: Well, I think that the Veterans Court's decision was on the elements of 3.114A. [00:34:57] Speaker 01: And so now we are [00:35:00] Speaker 01: Now we're appealing the veterans court that the approved by the secretary element could not be met here because the principle undersecretary of benefits did not give the director of pension and fiduciary services delegated authority. [00:35:19] Speaker 01: That's a misinterpretation of 2.6, and it ignores the presumption of administrative regularity. [00:35:28] Speaker 05: Any more questions? [00:35:29] Speaker 05: Any more questions? [00:35:30] Speaker 01: Thank you, Your Honor. [00:35:32] Speaker 05: Thank you. [00:35:33] Speaker 05: Thanks to counsel on both sides. [00:35:35] Speaker 05: The case is taken under submission.