[00:00:00] Speaker 02:
We have four cases on the docket today.

[00:00:02] Speaker 02:
Our first case is appeal number 21-2175, Maddox v. McDonough.

[00:00:11] Speaker 02:
Mr. Carpenter, whenever you're ready, you can proceed.

[00:00:13] Speaker 03:
May it please the court, Kenneth Carpenter on behalf of Mr. Maddox.

[00:00:26] Speaker 03:
The issues before this court are quite different.

[00:00:32] Speaker 03:
The first issue deals with process.

[00:00:34] Speaker 03:
The VA currently operates under two adjudicatory procedures.

[00:00:39] Speaker 03:
The first is currently referred to as legacy, the former process.

[00:00:43] Speaker 03:
The second is the process known as the AMA, which is the new adjudicatory process.

[00:00:51] Speaker 03:
The question before this court today is whether or not in the transition from one to the other, the obligations under the AMA apply.

[00:01:02] Speaker 03:
Specifically in this- Mr. Carpenter?

[00:01:04] Speaker 02:
Yes, sir.

[00:01:04] Speaker 02:
Can I just interrupt you?

[00:01:05] Speaker 02:
Is your argument just a little bit more narrow, which is whether Section 5104

[00:01:10] Speaker 02:
applies in your case?

[00:01:12] Speaker 02:
Absolutely.

[00:01:13] Speaker 02:
To the board's decision?

[00:01:14] Speaker 03:
To the board's decision.

[00:01:15] Speaker 03:
It is that small piece of the new adjudicatory process that we believe commences when there is a final legacy decision that has been issued.

[00:01:25] Speaker 03:
And that imposes, because the decision was made after the enactment of the AMA, to the board to provide the notice provided for by Congress in 5104B.

[00:01:38] Speaker 03:
Well, I think A and B.

[00:01:40] Speaker 02:
I understand the government to be contending that 5104 doesn't apply to any board decisions, even those that clearly fall under the AMA, where even if the secretary's decision fell within that time period that it was under the AMA, nonetheless, the board's decision would not be subject to 5104.

[00:02:00] Speaker 02:
So what's your response to that argument?

[00:02:03] Speaker 03:
Well, it's in direct conflict with the presidential opinions from the Veterans Court.

[00:02:08] Speaker 03:
But more importantly, it's in conflict with this court's precedent in Cummings.

[00:02:12] Speaker 03:
This court's decision in Cummings specifically said that this court recognized that the board was obligated to provide notice under the prior provisions of this statute, prior to its amendment.

[00:02:25] Speaker 03:
It seems illogical and unreasonable for the

[00:02:30] Speaker 03:
Congress to have added on these specific requirements and not intended them to apply.

[00:02:36] Speaker 03:
And the reason that intent is clear is because Congress in both 5104A and in 7104, the board's jurisdictional statute, used the same opening phrase, nearly verbatim, subject to decisions of the secretary under 511.

[00:02:53] Speaker 03:
A board decision is a decision of the secretary under 511.

[00:02:59] Speaker 03:
When you read the board's jurisdictional statute, this court has interpreted that statute to mean one review by the secretary of the decision of the secretary.

[00:03:10] Speaker 03:
So in a very somewhat schizophrenic way, Congress is referring to the board as both the board for its jurisdictional purposes

[00:03:19] Speaker 03:
and acting as the agent of the Secretary in reviewing the decision of the Secretaries as an administrative appellate.

[00:03:34] Speaker 02:
the secretary the authority to delegate the decisions of the secretary to the board or somebody else.

[00:03:41] Speaker 02:
And also says that the decisions of those delegated decisions shall be as if they were the decisions of the secretary.

[00:03:48] Speaker 03:
Absolutely are.

[00:03:51] Speaker 04:
You answered Judge Stoll's question.

[00:03:53] Speaker 04:
Did you have more to say?

[00:03:56] Speaker 03:
No.

[00:03:59] Speaker 03:
The way in which this court has viewed the board is that the board is acting as the agent of the secretary, making decisions under the mandatory language of 7104 to provide one review of the decision of the secretary.

[00:04:15] Speaker 04:
And 7104 was what I wanted to make sure I understood your view on, because it does seem to distinguish between decisions of the secretary and decisions of the board.

[00:04:24] Speaker 04:
So how do you square that with your argument?

[00:04:28] Speaker 03:
Well, unfortunately, it's one of those many squares that are not entirely square from Congress in the language that it uses, which is why I mentioned that it refers to one review of the secretary's decision by the secretary.

[00:04:43] Speaker 03:
So the by the secretary has to refer to the board itself.

[00:04:48] Speaker 03:
So the decision is, excuse me, the mandate of Congress is that the board as a construct shall be the appellate body which reviews upon perfection of an appeal under the legacy system a decision by the secretary.

[00:05:03] Speaker 04:
Is there a statutory definition of what is a legacy claim?

[00:05:07] Speaker 03:
No, there is not, Your Honor.

[00:05:09] Speaker 03:
This is essentially what we were left with when Congress in 2017 enacted the AMA and then delayed its implementation until February 2019.

[00:05:19] Speaker 03:
And it is that February 2019 date that becomes the demarcation for the transition from legacy to the AMA.

[00:05:30] Speaker 03:
The question here is, when does a legacy decision end?

[00:05:36] Speaker 04:
Well, and I may have this wrong, but in that the note to Section 101 in Section 6, there's definitions.

[00:05:46] Speaker 04:
And there seems to be a definition there of legacy claims.

[00:05:50] Speaker 04:
And it says the legacy claim means a claim for which the notice of a decision under Section 5104 was provided by the secretary before the date set forth in Section 2S.

[00:06:03] Speaker 04:
Is that applicable here?

[00:06:05] Speaker 03:
Well, it is to the extent that that's what defines Mr. Maddox's appeal to the board as a legacy appeal.

[00:06:14] Speaker 03:
The question is, when that legacy appeal ends with a final decision from the board under the AMA, because this decision was decided after February 19, 2019,

[00:06:27] Speaker 03:
What is the board's obligation from a notice perspective?

[00:06:31] Speaker 03:
I would suggest that there are two separate notices.

[00:06:33] Speaker 03:
The first notice is the one that keeps it in legacy until it's finished.

[00:06:39] Speaker 03:
The second notice is at the end.

[00:06:41] Speaker 03:
And the problem is, is Congress simply provided no guidance as to how we deal with that transition.

[00:06:48] Speaker 02:
One of the concerns I had was, in the same note that Judge Stark was referring to, there's that Section 5 treatment of legacy claims.

[00:06:57] Speaker 02:
And there, it refers to a statement of the case.

[00:07:00] Speaker 02:
Yes.

[00:07:01] Speaker 02:
It says, upon the issuance to a claimant, the statement of the case occurring on or after the applicability of the date specified in paragraph 1.

[00:07:10] Speaker 02:
Well, the statement of the case isn't coming from the board.

[00:07:13] Speaker 02:
The statement of the case is coming from the RO.

[00:07:16] Speaker 03:
Right.

[00:07:17] Speaker 03:
And the reference to statement of the case is relevant because Congress made specific opt-in provisions for veterans or claimants who have their claims or appeals in the legacy system.

[00:07:31] Speaker 03:
to when they receive the statement of the case to opt in, or coming back from the board when they receive a supplemental statement of the case where the denial is continued in whole or in part.

[00:07:43] Speaker 03:
And that allows the case to either stay in legacy and be completed in legacy, or gives the veteran the option to opt in.

[00:07:51] Speaker 02:
Well, what about, I think the government relies on this very provision to suggest that this note shows that section 5104, when it's referring to a decision of the secretary, is only referring to the RO's decision.

[00:08:06] Speaker 02:
Because this is talking about a statement of the case.

[00:08:10] Speaker 02:
How do you respond to that?

[00:08:11] Speaker 03:
They're absolutely correct.

[00:08:13] Speaker 03:
That refers only to the decision of the secretary in the issuance of a statement of the case or a supplemental statement of the case.

[00:08:22] Speaker 03:
That notice has already been provided under the former provisions.

[00:08:26] Speaker 03:
This case is about when the legacy appeal ends.

[00:08:30] Speaker 03:
And it must end.

[00:08:31] Speaker 03:
There must be some finality to the legacy system.

[00:08:35] Speaker 03:
And that happened here in Mr. Maddux's case.

[00:08:38] Speaker 03:
at the time in which Mr. Maddux was confronted with a final board decision after the AMA, which then gave him two options.

[00:08:45] Speaker 03:
He could either appeal to court, as he was forced to do, because he didn't have the notice under 5104B to inform him about filing a supplemental claim

[00:08:56] Speaker 03:
before the agency and there's no question that the VA provides in its own regulations that after a final board decision coming from legacy that the veteran is entitled then to go back within one year and file a supplemental claim.

[00:09:12] Speaker 02:
What about the argument the government makes, they argue that because section 7104

[00:09:19] Speaker 02:
already specified what the board's decision has to require.

[00:09:23] Speaker 02:
That supports the interpretation of 5104 as not applying to board decisions.

[00:09:31] Speaker 03:
It simply ignores the opening phrase in both 5104A and 7104A, subject to the decisions of the secretary under 511.

[00:09:41] Speaker 03:
The decision of the board, as has been interpreted by this court, is a decision of the secretary under 511.

[00:09:48] Speaker 03:
If it's a decision of the secretary under 511, then it is necessary for the 5104B notice to be provided.

[00:09:55] Speaker 03:
I see I'm almost completely out of the time before I'm into my rebuttal, but I would very much like to get to the second issue, which is 5107B.

[00:10:02] Speaker 03:
5107B, we believe, has been clearly defined by the Veterans Court as a standard of proof.

[00:10:11] Speaker 03:
And it either is the only standard of proof in the VA adjudicatory system, or it's not.

[00:10:18] Speaker 03:
There is no role or function for the preponderance of evidence standard of proof.

[00:10:24] Speaker 03:
There equally can be no question that preponderance of evidence is a standard of proof.

[00:10:28] Speaker 03:
And that when the VA, or the board in this case, insinuates that into this process, it undermines the clear intent of Congress to provide a unique and special standard of proof, as was described in Gilbert.

[00:10:43] Speaker 03:
This is not an issue.

[00:10:44] Speaker 04:
Do you dispute that the VA is acting as a fact finder?

[00:10:51] Speaker 03:
Actually, I do, Your Honor, because I do not believe the role is to be a fact finder in the adversarial context, that they are not sitting as triers of fact.

[00:11:06] Speaker 04:
The government says your position essentially is all you would have them do is count up the number of pieces of evidence.

[00:11:14] Speaker 04:
You deny that, but what would you let them do under your reading?

[00:11:17] Speaker 03:
Well, but the problem with trivializing that, Your Honor, is that this is about the only standard of proof that's been provided by Congress.

[00:11:26] Speaker 04:
I just want to understand, what does you think the VA is allowed to do in their role as whatever we're going to call them?

[00:11:33] Speaker 03:
They are required under their duty to assist to obtain pertinent evidence to substantiate the claim under their 3.104A statement of policy.

[00:11:43] Speaker 03:
They are to develop that evidence to determine every benefit that can be awarded under law.

[00:11:50] Speaker 03:
then they are to apply the focus of that or analysis of that evidence under the positive evidence or the negative evidence.

[00:12:01] Speaker 03:
Congress only gave them two options.

[00:12:04] Speaker 03:
Evidence that they develop is either positive, which must favor the grant, or negative, which is evidence which must

[00:12:11] Speaker 03:
undermined they can label each piece of evidence positive or negative and then they just count up how much no then they must determine in the language provided by Congress whether or not that evidence is or is not in approximate balance and the flaw here is when you cross the line and misuse a concept like preponderance of evidence which is to say as they did in this decision that we need not apply the benefit of the doubt

[00:12:38] Speaker 03:
There was no intention on Congress to not apply the benefit of the doubt.

[00:12:43] Speaker 03:
This process is the benefit of the doubt is to be awarded when the evidence is in approximate balance.

[00:12:50] Speaker 03:
And that's the information the claimants are entitled to when they get their decision from the board.

[00:12:55] Speaker 00:
Mr. Farmer, how is the determination made as to whether evidence is in approximate balance?

[00:13:01] Speaker 00:
Say we have item A, which is for the veteran, item B, which is against the veteran.

[00:13:08] Speaker 00:
There's two items, but how do we determine whether they're in approximate balance?

[00:13:14] Speaker 03:
Well, Your Honor, to be perfectly candid, there is no instruction from Congress as to how one does that.

[00:13:20] Speaker 03:
The only instruction from Congress is in 5107 that on any matter that is material to a determination in a case, so it can be as to an issue or as to the ultimate grant,

[00:13:32] Speaker 03:
The benefit of the doubt shall be afforded by the secretary when there is an approximate balance.

[00:13:37] Speaker 03:
So the adjudicatory responsibility is not to be the trier of fact, but to be the determiner of whether or not.

[00:13:46] Speaker 00:
But can it fairly be said there's an approximate balance if one of the pieces of evidence is not at all credible, whoever it's for or against, and the other piece is very credible?

[00:14:00] Speaker 00:
So you have two pieces of evidence, but one is very strong and one is very weak.

[00:14:05] Speaker 00:
Is that an approximate balance?

[00:14:07] Speaker 03:
No, Your Honor, that's not.

[00:14:08] Speaker 03:
And that's not what 5107 is addressing.

[00:14:12] Speaker 03:
In that circumstance, if the evidence is entirely on the side of favorable, or as this court said in Lynch, that it is persuasive to one side or the other, then that's the end of the matter.

[00:14:30] Speaker 03:
The question under 5107 or the standard of proof is for those cases that fall in the massive middle, where the evidence is not clear.

[00:14:41] Speaker 03:
And the evidence doesn't have to be in exactly approximate balance, as this court indicated.

[00:14:49] Speaker 03:
But you must use that standard of proof.

[00:14:52] Speaker 03:
The VA must use that standard of proof.

[00:14:55] Speaker 03:
And when they don't, as they didn't hear, that's a clear error of law.

[00:14:59] Speaker 03:
I'm sorry.

[00:14:59] Speaker 03:
I'm almost completely through my rebuttal time.

[00:15:02] Speaker 02:
We have still a lot of questions.

[00:15:03] Speaker 02:
We'll give you some more time on rebuttal.

[00:15:05] Speaker 02:
Let's hear from the government.

[00:15:07] Speaker 01:
May it please the court?

[00:15:09] Speaker 01:
I guess I will address the issue regarding the notice required under the AMA first.

[00:15:16] Speaker 01:
Our view of the law is that those AMA provisions, those notice provisions in the statute, do not apply to Mr. Maddox's legacy appeal.

[00:15:25] Speaker 01:
We have several reasons for that view, and we believe the Veterans Court got it right.

[00:15:30] Speaker 01:
Number one, we believe that Mr. Maddox's view of that notice provision is not supported under the text of the statute.

[00:15:37] Speaker 01:
We have applicability provisions enunciated in section 2x of the AMA.

[00:15:42] Speaker 01:
We believe those speak to the instances in which the notice provisions would apply to a legacy claim.

[00:15:48] Speaker 01:
Mr. Maddox's claim does constitute a legacy claim, so we think section 2x should be decisive on that question.

[00:15:55] Speaker 01:
The second problem we have with Mr. Maddox's view is that it would create broad inconsistencies throughout Title 38.

[00:16:03] Speaker 02:
Namely... I'm going to interrupt you for a minute.

[00:16:06] Speaker 02:
How should we read the language in the case of a decision by the secretary under Section 511 of this title?

[00:16:14] Speaker 02:
That's Section 5104.

[00:16:16] Speaker 02:
That language is very broad.

[00:16:18] Speaker 02:
And of course, Section 512 says that the secretary can delegate the decision-making to the board, but that decisions by the board would be viewed as if decided by the secretary.

[00:16:32] Speaker 02:
So why isn't this broad language?

[00:16:35] Speaker 02:
decision by the secretary under Section 511, where some of that decision authority has been given to the board.

[00:16:41] Speaker 02:
Why isn't this broad language covering the board's decisions?

[00:16:44] Speaker 01:
I would agree with you, Your Honor, and Section 512 is not something that I had thought of, but I will point the court to, for example, Title 38, Section 7104, because I do think

[00:16:54] Speaker 01:
To the extent there is any concern about what constitutes the decision of the secretary, it's helpful to look at other parts of Title 38 and see how the term or the phrase, the statutory phrase, decision by the secretary, has been used throughout the rest of the applicable statutes under Title 38.

[00:17:13] Speaker 01:
For example, 7104, we see that how that statute is written, and this is subpart A,

[00:17:19] Speaker 01:
It defines a section 511A decision by the secretary as subject to one review on appeal

[00:17:29] Speaker 01:
to the secretary.

[00:17:30] Speaker 01:
And then it creates a distinction.

[00:17:32] Speaker 01:
It says, final decisions on such appeals shall be made by the board.

[00:17:36] Speaker 01:
So we think that statutory language seems to create an understanding that decision by the secretary is supposed to be viewed as something different than a decision by the board.

[00:17:45] Speaker 02:
But even if you also argue that 7104 has

[00:17:50] Speaker 02:
somewhat overlapping and 7104 D somewhat overlaps with the notice provisions of 5104?

[00:17:58] Speaker 01:
I do think it sort of does overlap but I think that the mere fact that a separate statute exists regarding what notice provisions are required to be provided by the board should indicate that that notice provision applies to the board and

[00:18:11] Speaker 01:
and that there is a separate statute, 5104B in this case, that would apply to the regional office in this case.

[00:18:19] Speaker 01:
Because to the extent those two statutes exist and are meant to apply to the same entities, they would be duplicative.

[00:18:26] Speaker 01:
And so it would create some perfluity throughout the statute.

[00:18:28] Speaker 01:
So we think it's best read.

[00:18:29] Speaker 01:
Separately.

[00:18:31] Speaker 01:
A couple other things that I think might be helpful is section 5103A, which is part of the AMA, refers to the 5104 provision that we're talking about in this case.

[00:18:42] Speaker 01:
And it specifically refers to 5104 notices as decisions or notices of decision by the agency of original jurisdiction.

[00:18:51] Speaker 01:
And so, Judge.

[00:18:53] Speaker 02:
Where is that?

[00:18:53] Speaker 02:
You said 5103.

[00:18:55] Speaker 02:
Which part?

[00:18:56] Speaker 01:
A subpart E, I believe.

[00:19:03] Speaker 01:
And so again, we think that when it says it refers to 5104 decisions, and it also uses language, notices of agency of original jurisdiction, that phrase, and this goes to your question, Judge Stark, that phrase, agency of original jurisdiction, actually is defined in the AMA.

[00:19:21] Speaker 01:
It's definition 34.

[00:19:22] Speaker 01:
That provision was added into the statute with the promulgation of the AMA.

[00:19:28] Speaker 01:
And if the court were to turn to 19 CFR 20.3, that has been a regulatorially defined phrase.

[00:19:36] Speaker 01:
And if you look at the regulatory definition of agency of virtual jurisdiction, it specifically doesn't include the board.

[00:19:42] Speaker 01:
It says.

[00:19:42] Speaker 02:
Yeah.

[00:19:43] Speaker 02:
I have a question, though, which is that to a certain extent, this could be argued against you.

[00:19:47] Speaker 02:
Because here, where they have to refer to notice

[00:19:51] Speaker 02:
for Agency of Original Jurisdiction.

[00:19:54] Speaker 02:
Isn't that more narrow than if clearly Section 5104 only applied to the Agency of Original Jurisdiction, then you wouldn't have to have this added language here in Section 5103AE.

[00:20:09] Speaker 01:
Well, I guess our view is that when 5103A subpart E refers to section 5104, that informs our understanding of what a 5104 decision notice is.

[00:20:24] Speaker 02:
I understand.

[00:20:25] Speaker 02:
That's one way to interpret it.

[00:20:26] Speaker 02:
But another way to interpret it, I would think, could be that by having more limiting language in this part of the statute, it shows, in fact, that 5104 is broader than just this limited example.

[00:20:41] Speaker 02:
I'm just wondering if you have a response to it, either based on the phraseology in 5103A or anything else.

[00:20:47] Speaker 01:
Not at the moment, Your Honor, I apologize.

[00:20:50] Speaker 01:
But I will point out, this is just one instance where we're talking about broad textual indicators throughout Title 38 that would seem to indicate that the way that we're supposed to interpret a decision by the secretary is kind of something different than a decision by the board.

[00:21:05] Speaker 01:
And the last thing I'd point to again is what I mentioned earlier, section 7104D through subpart E, which provides its own notice provisions that apply to the board.

[00:21:17] Speaker 01:
So the mere fact that a separate notice of a provision applies when it comes to decisions of the board would seem to indicate

[00:21:23] Speaker 01:
that the 5104 notice provisions wouldn't necessarily apply to decisions by the board and if there's any question on even that statutory argument the agency has defined it officially and that's on 38 CFR section 3.2400A where it does say that a decision by the secretary refers to initial decisions by the VA and that's

[00:21:46] Speaker 01:
consistent with all the broad textual information.

[00:21:50] Speaker 01:
It's 38 CFR, section 3.2400, subpart A.

[00:21:56] Speaker 01:
And so when it defines a decision by the secretary, it refers to initial decisions with the VA.

[00:22:02] Speaker 01:
But we don't even think the court has to get to Chevron step two in this process.

[00:22:06] Speaker 01:
We think the text of the statute, the AMA as a whole, the applicability provisions, which pronounce when a legacy claim can transition into the AMA climate, should answer that question on its own.

[00:22:19] Speaker 01:
But to the extent there's doubt, there's also regulatory language that supports it.

[00:22:23] Speaker 01:
If there are no further questions on the notice provisions.

[00:22:26] Speaker 04:
Do you make an argument that there's harmless error on this issue if there was error, or is that not something you're pressing?

[00:22:33] Speaker 01:
We have not made that argument, and we don't think the veterans court touched that issue either.

[00:22:38] Speaker 01:
We think it was treated as purely a statutory question.

[00:22:41] Speaker 01:
If it's OK with the court, I'll move on to the benefit of the doubt argument under 5107B.

[00:22:47] Speaker 01:
My friend on the other side seems to take the view.

[00:22:52] Speaker 01:
So part of my understanding of his view is that the VA or the board are precluded from doing fact finding.

[00:22:58] Speaker 01:
It could be a little bit more nuanced than that.

[00:23:00] Speaker 01:
I'm not entirely sure.

[00:23:01] Speaker 01:
But I do think that if the court were to look at the Veterans Court statutes, which are 7261, the Veterans Court review statute says that the Veterans Court must review fact findings of the board for clear error.

[00:23:13] Speaker 01:
So the mere fact that that statute says when the Veterans Court is reviewing a decision of the lower tribunal, it's reviewing findings of fact.

[00:23:22] Speaker 01:
would seem to indicate that Congress clearly contemplated that the VA and the board would do right things in fact in reaching their decisions.

[00:23:28] Speaker 01:
To the extent my friend is arguing about what the

[00:23:32] Speaker 01:
the benefit of the doubt rule should mean.

[00:23:35] Speaker 01:
My friend's argument on the other side is that because there's preponderance of the evidence language in the Veterans Court decision, that's a basis for reversal.

[00:23:43] Speaker 01:
But I think any clear reading of the board's decision and the Veterans Court's decision shows that what the board actually found was that there wasn't an approximate balance of evidence.

[00:23:54] Speaker 01:
And so regardless of how one reads

[00:23:55] Speaker 01:
Lynch or Ortiz, it satisfies the benefit of the doubt standard, regardless of the specific phraseology used.

[00:24:02] Speaker 01:
If there's any question on that, I would point the court to appendix page 16, where the court uses this is not an approximate balance evidence type case.

[00:24:13] Speaker 01:
And I would also point the court to appendix page 78, where you see the board weighing the evidence and the cases it cites, which says that, I don't want to characterize, so I'll actually just turn to it, page 78, where it says,

[00:24:33] Speaker 01:
As the examiner, and this is the middle of the page, the second long paragraph in the middle, as the examiner appears to have based the opinion on the veteran's inaccurate report of a 45 year history of psychiatric disability, the board finds the opinion to be of little probative value.

[00:24:52] Speaker 01:
clearly indicating the board saying this other contrary opinion just has very little probative weight.

[00:24:58] Speaker 01:
And then the case it cites is Manzingo, which is a Veterans Court decision.

[00:25:01] Speaker 01:
And in the parenthetical, it says, if an opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.

[00:25:09] Speaker 01:
So this really wasn't an instance where this was a close case.

[00:25:12] Speaker 01:
The board was finding that there wasn't an approximate balance of evidence, regardless of whether there's preponderance of evidence language.

[00:25:17] Speaker 01:
I think it's beside the point, because we know why the board reached its decision.

[00:25:21] Speaker 01:
We also know why the Veterans Court then affirmed it.

[00:25:23] Speaker 01:
We respectfully request that the court affirmed the Veterans Court decision.

[00:25:30] Speaker 02:
Thank you.

[00:25:33] Speaker 02:
Mr. Carpenter, you can have three minutes.

[00:25:40] Speaker 03:
Thank you, Your Honor.

[00:25:41] Speaker 03:
I am in a quandary, ethically.

[00:25:45] Speaker 03:
On Tuesday of last week, I argued this issue in a slightly different context before the Veterans Court.

[00:25:51] Speaker 03:
Before the Veterans Court, one of the members of the panel raised an amendment to the statute, which I had overlooked.

[00:25:59] Speaker 03:
And there is a note of construction in that amendment to the provisions of 38 USC 7105, which adds an E subsection.

[00:26:13] Speaker 03:
And the E subsection specifically adds to the 70

[00:26:17] Speaker 03:
Did I say 7104?

[00:26:18] Speaker 03:
It's 7104.

[00:26:20] Speaker 03:
Sorry, 7104.

[00:26:23] Speaker 03:
Notice provisions that adds the language both decision and notice in the subparagraph E. And then the note of construction

[00:26:36] Speaker 03:
makes reference to whether or not that does or does not apply to board decisions.

[00:26:41] Speaker 03:
It's frankly confusing to me.

[00:26:44] Speaker 03:
I'm not quite sure what it means.

[00:26:46] Speaker 03:
But it is a relevant matter for this court's consideration.

[00:26:51] Speaker 03:
And I felt an ethical obligation to bring it to the attention of the court.

[00:26:57] Speaker 03:
On the government's response to the federal

[00:27:02] Speaker 03:
5104B argument, it seems to me that the government simply overlooks the fact that at the end of the day, this is about what happens when legacy ends.

[00:27:14] Speaker 03:
We have no debate about what happens during legacy and that legacy is the controlling process.

[00:27:22] Speaker 03:
This board decision ended the legacy appeal.

[00:27:26] Speaker 03:
And then the veteran had the ability under the AMA to go forward.

[00:27:32] Speaker 03:
In order to go forward, he needed the notice under 5104.

[00:27:36] Speaker 03:
That's what Congress intended in creating the AMA.

[00:27:40] Speaker 03:
And that's what this court should find is the correct interpretation of 5104b.

[00:27:46] Speaker 04:
So wouldn't any notice end with the legacy and allow him to opt in to AMA if he wanted?

[00:27:53] Speaker 03:
No.

[00:27:53] Speaker 03:
No.

[00:27:54] Speaker 03:
The only notice under legacy, once the appeal is in legacy and AMA is in,

[00:28:03] Speaker 03:
applicable, the only way to get out of legacy is through a final decision or opting in with a statement of the case or a supplemental statement of the case.

[00:28:15] Speaker 03:
So there's only two ways to get into AMA.

[00:28:19] Speaker 03:
It's through the SSOC route or the end of it.

[00:28:24] Speaker 03:
And it's at the end that the veteran gets the opportunity to put the

[00:28:32] Speaker 03:
to present a supplemental claim with new and relevant evidence to continue the processing of his appeal back before the agency on the basis of the new and relevant evidence.

[00:28:47] Speaker 03:
One final note before I sit down.

[00:28:50] Speaker 03:
I would direct the court's attention to appendix 81, which is the very last paragraph of the board's decision.

[00:29:01] Speaker 03:
expressly said although the veteran is entitled to the benefit of the doubt where the evidence is an approximate balance the benefit of the doubt doctrine is in applicable where as here

[00:29:13] Speaker 03:
The preponderance of the evidence is against the client.

[00:29:17] Speaker 03:
And we believe that that is introducing a standard of proof which does not apply under 5107.

[00:29:23] Speaker 03:
And this court must direct the Veterans Court that that misinterprets 5107 to permit the board to do just that.

[00:29:32] Speaker 03:
Now, as to exactly what the board's going to do in terms of balancing

[00:29:40] Speaker 03:
evidence and determining whether it's positive or negative, that's their challenge and that's their obligation.

[00:29:45] Speaker 03:
But it has been their obligation from the beginning.

[00:29:48] Speaker 03:
One final comment before I sit down.

[00:29:51] Speaker 03:
I would direct the court's attention to the predecessor VA regulation, which I believe is at 3.103F.

[00:30:00] Speaker 03:
which is the regulatory definition of benefit of the doubt.

[00:30:05] Speaker 03:
And in that regulatory definition of benefit of the doubt, the secretary before the advent of 5107B describes just how much substantial doubt can exist and there be the right to the benefit of the doubt.

[00:30:21] Speaker 02:
Mr.. Carpenter before you sit down.

[00:30:23] Speaker 02:
Would you mind submitting just a short letter about?

[00:30:28] Speaker 02:
What you refer to just you just even include I'd be happy to listen to what you referred to about your previous CVC argument Yes, okay.

[00:30:37] Speaker 02:
Thank you very much.

[00:30:38] Speaker 02:
Thank you The cases are submitted in the briefs we thank counsel for their argument