[00:00:01] Speaker 04: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 04: God save the United States and this honorable court. [00:00:10] Speaker 02: Our first case for argument today is 21-1045, Smith-Montanez versus McDonoughhue. [00:00:17] Speaker 02: Please proceed. [00:00:21] Speaker 03: Thank you, Your Honor, and may it please the court. [00:00:24] Speaker 03: 38 CFR, Section 3, 312C3, [00:00:29] Speaker 03: provides important process to the survivors of our country's fallen military veterans. [00:00:36] Speaker 03: C3 requires the Department of Veterans Affairs carefully to consider as a contributory cause of a veteran's death any service-connected disease, quote-unquote, involving active processes affecting vital organs. [00:00:52] Speaker 03: What Ms. [00:00:53] Speaker 03: Smith-Montanez seeks is a per se rule of reasonableness. [00:00:58] Speaker 03: She argues that when a US military veteran dies while having compensably service-connected hypertension, that per se raises a reasonable possibility that C3 applies when a survivor claims the veteran's death was service-connected. [00:01:15] Speaker 00: Mr. Niles, this is Judge Prost. [00:01:17] Speaker 00: So I guess maybe that's your answer to my question. [00:01:21] Speaker 00: My question went to the fact that the board [00:01:24] Speaker 00: found that the veteran service-connected hypertension did not cause or contribute to death. [00:01:30] Speaker 00: And the Veterans Court reached the same conclusion. [00:01:33] Speaker 00: So I have had a hard time figuring out how this factual determination is eligible for review. [00:01:42] Speaker 00: So is your answer somehow related to the fact that you want us to interpret a reg as a legal matter to be a per se rule? [00:01:52] Speaker 00: Yes, Your Honor. [00:01:53] Speaker 03: This case is fundamentally about process where what 312C3 provides is this careful consideration. [00:02:03] Speaker 03: And the board is under a legal obligation to address all potentially applicable regulations. [00:02:10] Speaker 03: And so what Ms. [00:02:11] Speaker 03: Montanez seeks is this per se rule of reason on this thing that when a U.S. [00:02:15] Speaker 03: military veteran again dies while having compensably service-connected hypertension that you have this at least [00:02:23] Speaker 03: reasonable connection to the disease involving active processes affecting vital organs. [00:02:29] Speaker 02: Council, this is Judge Moore. [00:02:31] Speaker 02: Did you raise 3312 and this careful consideration provision before the board? [00:02:38] Speaker 03: No, Your Honor. [00:02:41] Speaker 03: Ms. [00:02:42] Speaker 03: Montanez at that point was proceeding pro se. [00:02:45] Speaker 03: And there is actually no requirement that a pro se appellant raise an argument to the board so long as the record reasonably raises it. [00:02:54] Speaker 03: And so the, to be more precise perhaps, the legal role that she is speaking is a per se rule of reasonableness about the record raising this issue. [00:03:04] Speaker 03: That when the record shows the military veteran died of being compensably service connected for hypertension. [00:03:10] Speaker 03: then the board must address whether 312C3 applies. [00:03:18] Speaker 02: Council, can you explain to me how it is that you think the record-raised entitlement such as the board should have been on notice? [00:03:27] Speaker 03: Yes, Your Honor. [00:03:28] Speaker 03: I'd like to do that by highlighting her argument on the ordinary meaning of the terms [00:03:35] Speaker 03: or the words in C3 phrase involving active processes affecting vital organs. [00:03:41] Speaker 03: And I think it'd be helpful to look at those words in reverse orders, starting with this vital organ, which is here the heart. [00:03:49] Speaker 03: And there can be just no dispute that the heart is necessary or pertaining to life, and so is a vital organ. [00:03:56] Speaker 03: And so then moving backwards from there to the word affecting, [00:04:00] Speaker 03: Well, VA recognizes in its schedule for rating disabilities that hypertension is a disease of the heart. [00:04:07] Speaker 03: Hypertension is high arterial blood pressure, and it increases one's risk for heart disease. [00:04:14] Speaker 03: And so then moving backwards from there to involving active processes, and this I think maybe speaks more directly to your question, having a compensable rating evaluation for hypertension, signifies that the veteran has hypertension [00:04:29] Speaker 03: symptoms that are sufficiently severe that VA has determined that for an average veteran, they would impair earning capacity. [00:04:39] Speaker 03: And so what she's arguing then is that this at least reasonably raises, that having this compensable hypertension at death, whether the veteran's hypertension is characterized by this activity, this pumping of arterial blood at high pressure [00:04:55] Speaker 03: that in turn produces the degeneration or deterioration of the heart. [00:05:00] Speaker 03: And so then pulling all that together, which she's respectfully submitting, is that a veteran's death while having compensably service-connected hypertension per se reasonably raises whether the veteran's hypertension was a service-connected disease involving active processes affecting vital organs. [00:05:17] Speaker 04: Mr. Now, this is just Toronto. [00:05:20] Speaker 04: Can I ask you this? [00:05:22] Speaker 04: You've been speaking only of what was called kind of the first part of the subsection or the paragraph three language and haven't said anything about the part that begins from the viewpoint of weather. [00:05:41] Speaker 04: As I understood the Veterans Court decision, [00:05:45] Speaker 04: It was applying the record reasonably raised standard of the Robinson cases and whatnot and finding that putting aside, it wasn't disputing that a heart problem affects a vital organ, but was saying what the record would have to reveal is some, something about the condition being [00:06:14] Speaker 04: having debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease of the primary cause. [00:06:30] Speaker 04: And on that, it seems right, I guess, to say that the regulation really does, [00:06:41] Speaker 04: require not just the affecting vital organ piece, but this kind of effect on resistance to whatever the primary cause is. [00:06:51] Speaker 04: And then it found that there was no such thing in the record. [00:06:54] Speaker 04: So can you address that piece of it? [00:06:58] Speaker 03: Happy to, Your Honor. [00:07:03] Speaker 03: Ms. [00:07:03] Speaker 03: Smith-Montanez views C3, paragraph 3, as [00:07:08] Speaker 03: putting out there a sequential analysis essentially in terms of whether the record reasonably raises this issue such that the agency must address it. [00:07:18] Speaker 03: And here I'll pause to say that a big thrust of our argument here is that the court was doing too much work. [00:07:24] Speaker 03: That this ultimately is a question that once the C3's applicability is reasonably raised really needs to go back to the agency for it to determine in the first instance. [00:07:33] Speaker 04: Well, just to put the point perhaps a little more concisely, why isn't it true that the record does not reasonably raise this unless there's something in the record that actually does suggest that this heart problem, the vital organ problem, produces this systemic weakening that renders the veteran materially less capable of resisting the primary cause? [00:08:03] Speaker 03: Well, her argument is about process where so long as she, so long as the veteran had died of a compensated service connected hypertension that then reasonably raises whether 3-3-12-C3 applies and the board had to then say something about it where [00:08:29] Speaker 03: I understand, and I'll pause here to say that I understand that what the Veterans Court concerned was that not whether there was anything in the broader administrative record that would meet this after the comma or this debilitating effects language, but rather what was put in the record of proceedings to the Veterans Court when Ms. [00:08:47] Speaker 03: Smith-Montanez was concentrating on this first step of what she sees as the two-step analysis, the first step being where the board erred [00:08:58] Speaker 03: in not addressing the regulations applicability. [00:09:00] Speaker 03: And so what she is asking is that the matter go back to the board and, if necessary, back to the agency of original jurisdiction at the agency to then make that determination for everything, the debilitating effects that act as a common language. [00:09:24] Speaker 03: Because she's recently, and again, she's recently submitting, I'm sorry, respectfully submitting that when a U.S. [00:09:33] Speaker 03: military dies while having compensably service-connected hypertension, that per se raises a reasonable possibility of C3 applying. [00:09:41] Speaker 03: The Veterans Court, she understands, held contrary to that, she respectfully requests reversal. [00:09:48] Speaker 03: and remand for proceedings that would be consistent then with this per se rule of reasonableness that she is requesting. [00:09:55] Speaker 03: And I would ask to reserve the remainder of my time unless Your Honors have any further questions. [00:10:01] Speaker 02: No problem. [00:10:02] Speaker 02: Mr. Niles will reserve it. [00:10:03] Speaker 02: Ms. [00:10:03] Speaker 02: Fleming, please proceed. [00:10:07] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:10:11] Speaker 01: Your Honor, though the petitioner's argument has evolved today to seeking a per se rule, [00:10:18] Speaker 01: Up to this date, the petitioner's focus has been on the regulatory interpretation. [00:10:25] Speaker 01: However, their argument that the regulation was misapplied by the board and later the Veterans Court is based on an underlying premise that, in fact, there was evidence before the board that should have been enough to persuade it to consider in more detail hypertension [00:10:47] Speaker 01: as a contributory cause of death. [00:10:49] Speaker 01: However, as the court has pointed out, the board did in fact expressly consider whether hypertension was a cause of Mr. Bunker-Solar's death. [00:10:59] Speaker 01: Based on his experience, the board determined and the Veterans Court affirmed that Ms. [00:11:04] Speaker 01: Smith-Montanez did not submit enough evidence to overcome the fact that Mr. Bunker-Solar's hypertension was rated at only 10%, that it was a condition that was static for almost 20 years, and that it was not identified as the contributory cause of his death on his death certificate. [00:11:22] Speaker 01: As a result, essentially this case is about the weight that the board gave to those facts [00:11:27] Speaker 01: when it considered whether hypertension was a contributory cause of Mr. Bunker-Solars death. [00:11:32] Speaker 01: And so it is a factual determination and should be considered beyond the jurisdiction of this court. [00:11:39] Speaker 01: However, even if the court concludes that Ms. [00:11:42] Speaker 01: Smoltanez is right and the case requires interpretation of 3.312C3, we would argue there is no violation of the regulations plain meaning. [00:11:53] Speaker 01: First, because the language does not clearly require careful consideration when no evidence was submitted to show Mr. Bunker-Solar's hypertension actually affected his vital organs. [00:12:06] Speaker 01: Now, I believe Judge Moore asked Mr. Niles about this issue, and he didn't actually explain beyond the fact that hypertension was diagnosed how that condition affected his vital organs. [00:12:21] Speaker 01: In fact, what he said [00:12:22] Speaker 01: in oral arguments and in the brief for Ms. [00:12:26] Speaker 01: Montanez was that hypertension creates, quote, a risk of heart disease, which is a risk of an effect on the vital organs and not actual evidence of any such effect. [00:12:38] Speaker 01: Therefore, there could not have been any effect on his vital organs proven, nor was there any showing that that effect rendered the veteran less capable of resisting his primary cause of death. [00:12:52] Speaker 04: Which was what again? [00:12:56] Speaker 01: There were three causes listed on his death certificate, Your Honor. [00:13:00] Speaker 04: Right, there was a septic shaft renal failure and what was the first one? [00:13:04] Speaker 01: Acute respiratory distress syndrome. [00:13:06] Speaker 04: And you don't think hypertension might weaken the body to make acute respiratory syndrome harder to resist? [00:13:13] Speaker 01: Your Honor, I think there's no evidence in the record that hypertension did make acute respiratory syndrome harder for the veteran to resist in this case. [00:13:23] Speaker 01: He had it again for 20 years. [00:13:26] Speaker 01: So between his diagnosis and the time he unfortunately died of acute respiratory distress, the hypertension was not a factor in any other similar condition that was raised with the board. [00:13:42] Speaker 01: So there's no reason to suspect that in fact hypertension was actively affecting his vital organs at all, much less making his [00:13:51] Speaker 01: the condition on which he eventually died worse. [00:13:56] Speaker 04: Just to be clear, you don't mean literally that the heart problem that is hypertension was not affecting the heart, which is a vital organ? [00:14:08] Speaker 04: That can't be right. [00:14:09] Speaker 01: Well, Your Honor, the fact that hypertension affects the arteries and increases the blood pressure is a fact. [00:14:17] Speaker 01: That's a diagnostic criteria. [00:14:19] Speaker 01: But whether it actually [00:14:21] Speaker 01: affected the operation of his heart in a meaningful way, that his retina can less able to resist disease is entirely unknown. [00:14:32] Speaker 04: It just seems to me there's a rather important difference between what's happening in the first half of that sentence of paragraph three and what's required by the second half, and it seems to me you're [00:14:47] Speaker 04: The principal point has to be here about the second part of the sentence, not the first part. [00:14:56] Speaker 01: That's fair, Your Honor. [00:14:57] Speaker 01: I do agree that that is the more persuasive argument. [00:15:01] Speaker 01: I think, though, that there is a reality that [00:15:05] Speaker 01: millions of people have hypertension and control the condition. [00:15:08] Speaker 01: And while it is controlled, one can certainly argue it isn't actively affecting one's vital organs. [00:15:17] Speaker 01: And there is no evidence that that kind of effect happens for Mr. Bunker Solar. [00:15:23] Speaker 01: But even if [00:15:24] Speaker 01: The court is skeptical of the absence of such an effect. [00:15:29] Speaker 01: It's indisputable that there's been no evidence submitted that his hypertension actually rendered him less capable of resisting any of the conditions that were the cause of his death. [00:15:43] Speaker 02: Do we get to that point? [00:15:45] Speaker 02: Because I think skeptical would be a minimal way that I would put it in terms of how I feel about whether hypertension has any effect on a vital organ. [00:15:54] Speaker 02: So if the first part is met, at that point, doesn't the board have to give careful consideration? [00:16:02] Speaker 02: And that's what they're asking for here. [00:16:06] Speaker 02: So do we even get to the second? [00:16:08] Speaker 02: I mean, in this case, do we get to the second part? [00:16:13] Speaker 02: If there's a service-connected disease like hypertension that involves active processes that affect a vital organ like the heart, then there has to be careful consideration given. [00:16:24] Speaker 02: We don't know if there's any, and careful consideration is to everything that comes after, but we don't know if there was careful consideration given, do we? [00:16:33] Speaker 01: Well, I would say, first, your honor, that I would disagree that the careful consideration is required unless the evidence suggests or the petitioner argues before the board that [00:16:49] Speaker 01: there were debilitating effects and general impairment of health that would render the veteran material less capable of resisting the effects of other diseases. [00:16:59] Speaker 01: So therefore, you know, the language, which is one sentence in the regulation, should be read completely. [00:17:07] Speaker 01: And, you know, contrary to Mr. Niles's petition before the court, he's suggesting essentially reading into the regulation a multi-step test [00:17:19] Speaker 01: or a series of elements in an if-then clause that, in fact, does not exist in the regulation. [00:17:26] Speaker 01: Rather, in one sentence, the regulation discusses active processes, effects on a vital organ, and to measure the effect on the vital organ logically includes some barometer of that. [00:17:42] Speaker 01: which is whether there were debilitating effects, that language. [00:17:46] Speaker 01: So our position is that language has to be read in tandem with the effect on vital organs to be meaningful. [00:17:55] Speaker 01: And it's only once that standard has been reached that any duty of careful consideration applies. [00:18:03] Speaker 02: So is it, I guess maybe I, maybe I'm confused. [00:18:10] Speaker 02: that the extent to which they render a person materialist capable of resisting is sort of the standards for whether they are a contributory cause of death. [00:18:23] Speaker 02: Am I wrong about that? [00:18:24] Speaker 02: Or you think the second part, the general impairment of health, debilitating effects, do you think that part goes to whether they even get careful consideration or is that the standard to which careful consideration should be applied? [00:18:39] Speaker 01: Your Honor, I do think that that language actually is what must be met before the veteran is entitled to careful consideration or the court must carefully consider the service-connected condition as a contributory cause of death. [00:19:04] Speaker 01: There are other parts of this regulation that speak to what the standard for a contributory cause of death is. [00:19:14] Speaker 01: For instance, under 3.312C1, it defines contributory cause of death and sets out the standard as it must have contributed substantially or materially to the cause of death. [00:19:30] Speaker 01: So the regulation already provides [00:19:34] Speaker 01: a test for what a contributory cause of death should be. [00:19:38] Speaker 01: Here, the regulation is discussing what standard must be reached before careful consideration is due, and that is the language that we see in the subsection. [00:19:57] Speaker 02: Anything further, Ms. [00:19:58] Speaker 02: Fleming? [00:20:00] Speaker 01: Yes, Your Honor. [00:20:03] Speaker 01: point out again that, in fact, the board actually has considered, you know, with some level of care, the argument that hypertension was a contributory cause of his death. [00:20:16] Speaker 01: That is, the phrase careful consideration is inherently subjective. [00:20:23] Speaker 01: And there's no dispute that the board did consider whether hypertension was a cause of his death, and it found it did not. [00:20:33] Speaker 01: considered the evidence before them, which again included a relatively minor rating for hypertension and really no other information about how that condition affected the veteran or could have contributed to his death. [00:20:48] Speaker 01: Balanced against that, they considered that the condition had been static for a number of years, and that the death certificate did not list the condition as a contributory cause of his death. [00:20:59] Speaker 01: With those facts, the board reasonably concluded, after some level of care, that, in fact, it was not a factor that substantially contributed to his death. [00:21:10] Speaker 02: Now, whether included under some level of care, what was the level of care? [00:21:15] Speaker 02: Was it careful care? [00:21:17] Speaker 01: I think, Your Honor, what I'm suggesting is that the consideration was given. [00:21:21] Speaker 01: Was it careful consideration? [00:21:26] Speaker 02: What does that even mean? [00:21:27] Speaker 02: What is careful consideration as opposed to not careful consideration? [00:21:31] Speaker 01: Well, I think that one way of trying to define the difference between those two things is to look at the Schoonover case. [00:21:41] Speaker 01: Now, this was a case that the Veterans Court considered when the first raising of this issue was made by Ms. [00:21:52] Speaker 01: Smith-Montanez. [00:21:53] Speaker 01: And in Schoonover, the Veterans Court looked at a case where the veteran had a rating of 75%. [00:22:00] Speaker 01: a death certificate that listed his service connection for hypertension as a contributory cause of his death and determined that the board did not consider hypertension as a contributory cause of death at all and that that was not enough care. [00:22:15] Speaker 01: And so it did remand in that case. [00:22:17] Speaker 01: In contrast, in this case, the court determined that there was a much more moderate [00:22:25] Speaker 01: disability rating, no indication that hypertension was a contributory cause of death. [00:22:31] Speaker 01: In that case, with the evidence before the board, it did not warrant additional care, that is, care more than was already provided. [00:22:45] Speaker 01: it's an inherently difficult to define standard. [00:22:50] Speaker 01: And we think that the best venue to determine what level of care is appropriate to the evidence raised by a case are the Board and the Veterans Court, which are the most informed about these cases and the most likely to deal with them on a day-to-day basis. [00:23:11] Speaker 01: And so the weighing of what [00:23:13] Speaker 01: amount of consideration is due should be left to those bodies. [00:23:21] Speaker 01: So I would just point out one more thing. [00:23:23] Speaker 01: The petitioner has focused on whether it's appropriate to consider the severity of the service-connected disability and whether a rating is an appropriate proxy for the severity. [00:23:38] Speaker 01: And that's, of course, important in this case because [00:23:40] Speaker 01: Mr. Bunker-Solar's hypertension was rated at the lowest possible rating, that is 10%. [00:23:47] Speaker 01: However, if you look at specifically 3.312C, the entire subsection reflects the idea of severity and the importance of looking at the rating to determine how severe a disability is. [00:24:06] Speaker 01: So for instance, in subsection [00:24:09] Speaker 01: 3.312C1 under contributory cause of death, that particular subset requires it be shown that it contributes substantially or materially and not merely be present. [00:24:23] Speaker 01: Under subsection two, specifically, it says generally minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death. [00:24:38] Speaker 01: So they're basically stating in another subsection of the same regulation that minor disabilities, that is the minor rated disabilities may not be sufficient for finding a contributory cause of death. [00:24:58] Speaker 01: And then even within subsection C3, the final sentence of that subsection acknowledges that severity [00:25:06] Speaker 01: is a key consideration by noting that ratings of 100% are assumed to be severe enough that additional analysis isn't needed. [00:25:16] Speaker 01: I hear that my time is about up. [00:25:20] Speaker 01: If there are no other questions, I'll conclude. [00:25:22] Speaker 02: Thank you, Ms. [00:25:24] Speaker 02: Fleming. [00:25:24] Speaker 02: Mr. Niles, you have some rebuttal time. [00:25:26] Speaker 02: Please proceed. [00:25:29] Speaker 03: Thank you, Your Honor. [00:25:30] Speaker 03: I'd like to return to the text of C3, because I think that Your Honor should ask questions that do speak more to the linguistics of it than I had initially addressed. [00:25:41] Speaker 03: And so this is a paragraph that begins by saying, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration. [00:25:53] Speaker 03: You then later in that same paragraph have this phrase, from the viewpoint of whether there were resulting debilitating effects, and it goes on. [00:26:03] Speaker 03: And the question, I believe, what your honors were asking essentially is to what does this language from the viewpoint of modify? [00:26:13] Speaker 03: And I would submit that the answer is careful consideration. [00:26:17] Speaker 03: And so what C3 requires then [00:26:20] Speaker 03: is that a disease involving active processes affecting vital organs receive careful consideration. [00:26:28] Speaker 03: And that careful consideration, then, the second part of this two-step process that I have been referring to would be from that viewpoint of depilitation. [00:26:37] Speaker 03: That final sentence in C3 then speaks to a special case of when the depilitation may be assumed. [00:26:44] Speaker 03: So again, later on in the analysis, [00:26:47] Speaker 03: I'll also mention just as an oh by the way point that the government had mentioned that millions of people have hypertension, are controlled for it. [00:26:57] Speaker 03: This is a rating though, or a disease for which the rating criteria bake into it, the consideration of whether hypertension is controlled. [00:27:09] Speaker 03: And so it's only after considering the, this ameliorative effects of that medication. [00:27:16] Speaker 03: that, you know, for her hypertension, that Mr. Bunker-Solar's disability still was at a level that required a compensable rating. [00:27:28] Speaker 03: And with that, I think everything else has been covered in the briefs. [00:27:32] Speaker 03: And unless the Your Honors have any further questions, I will conclude. [00:27:36] Speaker 02: I thank both Councils. [00:27:37] Speaker 02: This case is taken under submission.