[00:00:00] Speaker 00: Our next case for argument is 21-1968, Stevens v. McDonough. [00:00:06] Speaker 00: Mr. Brown, please proceed. [00:00:10] Speaker 02: Good morning, Your Honor, and may it please the Court? [00:00:16] Speaker 02: The issue is the propriety of the regulation 38 CFR, Section 3.304, specifically subparagraph F3. [00:00:29] Speaker 02: which was added to the regulations to ease the burden for a PTSD claimant so that one, need for a verified stressor is placed by two, fear due to the proximity of hostile forces or terrorism if confirmed by a VA psychiatrist or psychologist. [00:00:55] Speaker 02: At the time of rulemaking, the National Organization of Veterans Advocates [00:01:00] Speaker 02: presented a challenge to the court, and the court made a decision in NOVA versus Secretary of Veterans Affairs, 669 Federal Third, 1340 Federal Circuit, 1012. [00:01:15] Speaker 02: When the court decided the NOVA decision, it held that a private practitioner's opinion is only helpful when a stressor is corroborated, essentially removing any relaxation of the rule [00:01:29] Speaker 02: from 3.304F3 and places the burden back to the heightened category of the general paragraph of 3.304F, which requires credible supporting evidence that the claimed in-service stressor occurred. [00:01:46] Speaker 02: This has created two classes of case for veterans. [00:01:51] Speaker 02: The first being the relaxed burden when approved by a doctor or contractor from the VA. [00:01:57] Speaker 00: Counsel, this is so far. [00:01:59] Speaker 00: I mean, you acknowledge, I think, as you must, that the Nova case fully resolves your issue. [00:02:07] Speaker 00: So really, is there anything at all this panel could possibly give you in relief? [00:02:13] Speaker 02: Your Honor, as I briefed, I looked to the Procopio decision and the fact that this court has reversed itself in the past when it's actually been proven by experience [00:02:27] Speaker 00: Well, this is counsel. [00:02:28] Speaker 00: Counsel, you're not listening. [00:02:30] Speaker 00: The Procopio decision was in bank. [00:02:32] Speaker 00: Is there anything this panel can give you? [00:02:34] Speaker 00: We can't reverse a prior panel, right? [00:02:37] Speaker 02: No, but this panel could make a decision that the case needs to go to the court on bank. [00:02:46] Speaker 00: No, actually, we can't. [00:02:47] Speaker 00: Unless you don't know how our rules work, the in-bank court has to decide a case needs to go in bank. [00:02:53] Speaker 00: We don't have the right to decide that. [00:02:58] Speaker 02: That's right, but after this panel makes this decision, we still have the opportunity to ask for M Bank. [00:03:06] Speaker 00: Of course, of course, but there's absolutely no relief this panel can give you. [00:03:11] Speaker 00: in these circumstances. [00:03:13] Speaker 00: Basically, look, it's your 15 minutes, and if you want to keep talking throughout the entire time, or if any of my colleagues have questions, please feel free to jump in. [00:03:23] Speaker 00: But we can't give you any relief whatsoever, and so that's why you're probably not likely to get very many questions, right? [00:03:31] Speaker 00: Because [00:03:32] Speaker 00: you're sort of presenting something to people who can't do anything about it. [00:03:36] Speaker 00: Now, the in-bank court could do something about it, and you're preserving your right to take it to the in-bank by having brought it. [00:03:44] Speaker 02: Thank you, Your Honor. [00:03:45] Speaker 02: I think that that's likely true. [00:03:51] Speaker 00: Okay, is there anything further you want to add? [00:03:58] Speaker 02: I just want to make sure that none of my arguments are waived by not bringing them. [00:04:03] Speaker 00: So I'm making sure that I counsel every single argument in your brief is preserved and you may bring it to the in bank court. [00:04:12] Speaker 02: Well, thank you, your honor. [00:04:13] Speaker 02: Um, I guess I would just then say that as long as my case is preserved for the unbanked court, I don't know if there's any reason to keep taking your time. [00:04:29] Speaker 00: Okay, well, let's hear from the government. [00:04:31] Speaker 00: Certainly, you have a lot of rebuttal time. [00:04:34] Speaker 00: If they say anything that you feel like you need to respond to, then absolutely you can. [00:04:40] Speaker 02: Thanks, Your Honor. [00:04:48] Speaker 00: Mr. Yale? [00:04:50] Speaker 01: Thank you, Your Honor, and may it please the Court, I guess, just to briefly respond. [00:04:57] Speaker 01: because there was not a lot of colloquy there. [00:05:02] Speaker 01: You know, we think as far as this panel goes, the court should affirm the decision of the Veterans Court. [00:05:10] Speaker 01: The primary argument here, as was suggested, is foreclosed by NOVA. [00:05:17] Speaker 01: The court would need to hear [00:05:23] Speaker 01: essentially overrule Nova en banc, and we've certainly put forth a number of arguments as to why Nova was correctly decided. [00:05:35] Speaker 01: I'm certainly, you know, happy to get into those particular issues, but it sounds like as to, you know, there weren't really many questions asked as to the particular argument here. [00:05:51] Speaker 01: We certainly think that [00:05:53] Speaker 01: You know, if there even was a question as to whether or not NOVA covered the arguments here, it's very clear from the briefs based upon the fact that the primary argument is that [00:06:10] Speaker 01: 38 USC 1154 conflicts with this particular regulation with respect to PTSD. [00:06:20] Speaker 01: I mean, that issue was specifically covered by the NOVA decision. [00:06:27] Speaker 01: And so we would submit that the court should simply affirm the decision of the Veterans Court because NOVA forecloses any of these arguments. [00:06:40] Speaker 00: Okay, thank you, Mr. Yale. [00:06:42] Speaker 00: Mr. Brown, is there anything you'd like to say in rebuttal? [00:06:44] Speaker 00: Please proceed. [00:06:48] Speaker 02: Your Honor, we're dealing with a case now that is no longer a case in potentiality. [00:06:57] Speaker 02: At the time of the challenge to the rulemaking, the issues were potential in nature, whereas now we're dealing with real people. [00:07:06] Speaker 02: with real issues. [00:07:08] Speaker 02: We're dealing with a widow that's had to raise children on her own since the veteran took his life. [00:07:15] Speaker 02: And in this case, we represent her. [00:07:17] Speaker 02: And so we want to do everything we can to get her benefit. [00:07:22] Speaker 02: And she's actually a real person with real issues. [00:07:26] Speaker 02: So once again, that's why I look at Procopio, because Procopio was a case where the experience [00:07:34] Speaker 02: of the veterans who brought it added to the texture of the law in a way that wasn't viewed at the time of the Haas decision. [00:07:46] Speaker 02: So that's why we cite to Procopio in our case because it shows that experience and reality can change the original outcome of this court's decision about issues of [00:08:04] Speaker 02: benefits for Vietnam veterans and their families. [00:08:09] Speaker 02: So based on that, that is why we're requesting that this court reverse itself from the earlier NOVA decision, much in the same vein as it did when it reversed Haas in the Procopio decision. [00:08:27] Speaker 02: Because in this case, we're now dealing with real people with real problems. [00:08:32] Speaker 02: I know that this court only has authority to look at the law, not the facts, but that the facts can sometimes color the law, and that it makes it apparent that mistakes were made when earlier decisions were made. [00:08:53] Speaker 02: So I guess with that being said, I can waive any additional time, Your Honor. [00:08:59] Speaker 00: Okay, we thank both counsels. [00:09:01] Speaker 00: This case is taken under submission. [00:09:03] Speaker 00: And Mr. Brown, you have the opportunity now to make all of your arguments to the in-bank court after this opinion will issue. [00:09:13] Speaker 02: Thank you, Ron. [00:09:14] Speaker 00: Thank you.