[00:00:00] Speaker 03:
Our next case for argument is 22-1264 Baudette v. McDonough.

[00:00:05] Speaker 03:
Ms.

[00:00:05] Speaker 03:
Bae, please proceed.

[00:00:07] Speaker 05:
May it please the court?

[00:00:09] Speaker 05:
The Veterans Court erred in granting the Bodev's petition for writ of mandamus, particularly given that it completely failed to grapple with the meaning of the term medical determinations.

[00:00:19] Speaker 05:
This is not just some throwaway or even ancillary term that can be ignored, like the Veterans Court did.

[00:00:24] Speaker 05:
Rather, Congress dedicated an entire subsection of the statute to specifying that caregiver act decisions are to be considered medical determinations.

[00:00:34] Speaker 05:
This is the crux of the merits of this appeal.

[00:00:36] Speaker 05:
And as we demonstrated in our briefs, and as Judge Falvey noted in dissent, VA's interpretation is the only one giving meaning to that term and the only one that does not belie common sense.

[00:00:47] Speaker 05:
The Bodeps have posited that the term medical determinations could refer to what's colloquially called the Colvin rule as set forth in a Veterans Court case.

[00:00:58] Speaker 05:
But as we demonstrated in our briefs, there's several problems with this.

[00:01:02] Speaker 05:
One is that there was no reason for Congress to have wanted to ensure that the Colvin rule applied to caregiver program decisions, given that they already applied to all board decisions.

[00:01:13] Speaker 05:
and that there was no reason to specifically invoke the Colvin rule in terms of just the Caregiver Act.

[00:01:21] Speaker 05:
And as we noted in our briefs, it would make no sense at all that Caregiver Act decisions are to be considered medical decisions.

[00:01:27] Speaker 02:
I have two questions.

[00:01:28] Speaker 02:
I understand your Colvin rule point.

[00:01:31] Speaker 02:
But my question to you is, should I really be looking, am I supposed to be looking and saying, what does this word mean?

[00:01:37] Speaker 02:
Or am I really supposed to, by this case, be looking at determining

[00:01:40] Speaker 02:
Is it Congress's intent to not have judicial review for caregiver entitlement fairly discernible from the statute?

[00:01:50] Speaker 02:
Isn't that the question I should be focusing on?

[00:01:53] Speaker 05:
I think that there needs to be a focus on both.

[00:01:56] Speaker 05:
I think it's a cardinal role.

[00:01:58] Speaker 02:
I think it's your answer to the question.

[00:02:01] Speaker 05:
Well, as the Supreme Court, and I think this court has stated, primacy of text is first overall.

[00:02:09] Speaker 05:
And it's a cardinal rule that words in a statute should not be rendered mere subplussage, especially whereas here it's not just some throwaway or ancillary term.

[00:02:19] Speaker 05:
And as to Your Honor's question about the VJRA and whether there was an intent to displace Caregiver Act decisions from the scope of board review, I would say that

[00:02:31] Speaker 05:
The VA's interpretation is consistent with both the VJRA and with the congressional intent to displace that.

[00:02:37] Speaker 02:
Are you aware of any other statutes that purport to limit judicial review of agency action based on reference to words in a regulation?

[00:02:45] Speaker 02:
I mean, I searched.

[00:02:46] Speaker 02:
I couldn't find any.

[00:02:47] Speaker 02:
Have you found any?

[00:02:48] Speaker 05:
I'm not aware of specific cases to that effect, but I don't think that that is even remotely fatal because, as I said before, medical determination has to mean something.

[00:03:00] Speaker 05:
It's not something that can simply be ignored.

[00:03:03] Speaker 02:
I think that, again, given the- It just seems like an odd way to do it.

[00:03:08] Speaker 02:
I mean, let me back up a minute, too.

[00:03:10] Speaker 02:
It's under the heading construction.

[00:03:12] Speaker 02:
What do you think construction, that kind of heading usually means?

[00:03:16] Speaker 02:
And are you aware of any- I mean, I couldn't find any statutes either that limited judicial review in that kind of section.

[00:03:24] Speaker 05:
I think that here, it's under the heading construction, and I think that means basically what it purports to mean, which is that all decisions under the Caregiver Act, whether they may seem in lamest terms to be medical determinations or not,

[00:03:39] Speaker 05:
are to be considered medical determinations.

[00:03:41] Speaker 05:
And the only way in which that makes sense and that would give effect to both that phrase and congressional intent is for that to refer to the VA regulation, which predated both the VJRA and the passage of that statute.

[00:03:54] Speaker 05:
There's simply no other reason for that phrase to be in there.

[00:03:57] Speaker 05:
And not just that phrase, but that entire subsection.

[00:04:01] Speaker 04:
And that even accords with the... Well, it just seems...

[00:04:06] Speaker 03:
strange.

[00:04:07] Speaker 03:
I'm not saying it's wrong.

[00:04:09] Speaker 03:
I think this is a very hard case.

[00:04:11] Speaker 03:
But it seems strange to determine that the strong presumption of paper of judicial review is overcome by a section that uses the term medical determination because Congress must have known about this regulation and used it that way.

[00:04:28] Speaker 03:
If that is the entire intent of that section and you're saying there can be no other intent for it,

[00:04:35] Speaker 03:
Why wouldn't they just say, no judicial review?

[00:04:37] Speaker 03:
Because the problem is, you all could change your rank any time.

[00:04:41] Speaker 03:
And then how would that affect that statutory section?

[00:04:45] Speaker 03:
So why wouldn't Congress just have said, no judicial review?

[00:04:47] Speaker 03:
If that's really 100% of the reason, and you can think of no other reason, the word medical determination would be in the caregiver act in that way.

[00:04:55] Speaker 05:
Well, I mean, first, I don't see any other way that medical determination could be construed in the Caregiver Act.

[00:05:02] Speaker 05:
I think it's important to note that medical determination is a term of art as used in the regulatory, in VA's regulatory framework, and I'm not aware of medical determinations being used any other way.

[00:05:13] Speaker 03:
Do you think the word medical determination in the Caregiver Act is consistent with the term of art in the way the VA uses it?

[00:05:19] Speaker 03:
Absolutely.

[00:05:20] Speaker 03:
Okay, well why don't we look at the regulation itself?

[00:05:23] Speaker 03:
Okay.

[00:05:23] Speaker 03:
So 20.104B, right?

[00:05:26] Speaker 03:
That's what we're talking about, correct?

[00:05:28] Speaker 03:
Yes.

[00:05:30] Speaker 03:
Okay, so the second sentence says, the board's appellate jurisdiction extends to, are you with me there?

[00:05:37] Speaker 03:
Yes.

[00:05:38] Speaker 03:
The board's appellate jurisdiction extends to questions of eligibility for, among other things,

[00:05:44] Speaker 03:
domiciliary care.

[00:05:45] Speaker 03:
What does that mean?

[00:05:49] Speaker 05:
You know what VA has interpreted it to mean, but I would assume that to mean that it's the care of the veteran in their domicile or residence.

[00:05:58] Speaker 05:
In home care?

[00:05:59] Speaker 05:
I would assume so.

[00:06:00] Speaker 03:
That's correct.

[00:06:01] Speaker 03:
So is that not exactly what the Caregiver Act is setting out to provide?

[00:06:08] Speaker 03:
Isn't the Caregiver Act, the entire purpose of it,

[00:06:10] Speaker 05:
The purpose of the Caregiver Act is to provide certain benefits to the caregivers of veterans who are eligible.

[00:06:24] Speaker 03:
Is it for in-home care to the veteran?

[00:06:28] Speaker 05:
Yes, it is related to in-home care of the veteran.

[00:06:30] Speaker 03:
So you have the first sentence or second sentence of your regulation that says the board has appellate jurisdiction over

[00:06:39] Speaker 03:
for the veteran.

[00:06:40] Speaker 03:
And then you're saying the next sentence says medical determinations are not matters for the board's jurisdiction.

[00:06:46] Speaker 03:
And so you're saying Congress intended to somehow do away with the first sentence of your regulation by saying in-home care to the veterans is not actually subject to board jurisdiction, even though this very regulatory section says it is.

[00:07:02] Speaker 05:
Well, I think the fact that it says again in the third sentence of the regulation that medical determinations are beyond the board's jurisdiction is more specific than the general.

[00:07:15] Speaker 03:
More specific than the domiciliary care work which read directly on the Caregiver Act and the nature of the services provided thereby.

[00:07:23] Speaker 05:
But again, the Caregiver Act is regarding care of veterans by their caregivers, but it does have that phrase, construction and medical determinations.

[00:07:33] Speaker 03:
And where Judge Stoll was going to go before I interrupted her is, what about the very next sentence?

[00:07:39] Speaker 03:
Typical example of these issues, issues which are medical determinations, include whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered.

[00:07:51] Speaker 03:
similar judgment treatments about and similar judgment treatment decisions.

[00:07:57] Speaker 03:
I don't understand how the Caregiver Act falls within those examples.

[00:08:03] Speaker 03:
Whether someone is entitled to in-home care is different from whether they should be bathed versus fed versus clothed versus there's two different issues.

[00:08:12] Speaker 03:
Are you entitled to in-home care at all?

[00:08:14] Speaker 03:
And then

[00:08:15] Speaker 03:
What are the specific forms of in-home care should be entitled to?

[00:08:18] Speaker 03:
And it seems like your regulation makes it crystal clear that the question of domiciliary care in general is for board review, but specific questions about the nature of the particular acts being provided would be the kinds of medical determinations that the board doesn't review with specificity.

[00:08:34] Speaker 05:
And I agree that there are... Do you agree with that?

[00:08:37] Speaker 05:
Do you agree with that?

[00:08:39] Speaker 05:
Yes, except for the fact that it just says typical examples.

[00:08:42] Speaker 02:
It's not a comprehensive listing of everything that... What about the sentence above it where it says, medical determinations such as determinations of the need for an appropriateness of specific types of medical care and treatment for an individual.

[00:08:55] Speaker 02:
And then it gives examples.

[00:08:56] Speaker 02:
I mean, we can't just say medical determinations means anything in light of these two sentences in this regulation, right?

[00:09:04] Speaker 05:
Well, I mean, I think the reason that you could say that medical determinations means anything under the Caregiver Act or Caregiver Act decisions is because, again, Congress specifically... No, no.

[00:09:13] Speaker 02:
You're under the Caregiver Act.

[00:09:15] Speaker 02:
You're trying to say that the medical determination as used under the Caregiver Act is the same thing defined here in your regulation.

[00:09:23] Speaker 02:
So I'm just asking, in your regulation,

[00:09:27] Speaker 02:
don't we have to look at the word medical determinations and read it in light of the other language in the regulation?

[00:09:34] Speaker 02:
Which is quite expensive, actually.

[00:09:36] Speaker 05:
It is, but it's not, I think, restrictive.

[00:09:40] Speaker 05:
It says typical examples or such as.

[00:09:43] Speaker 03:
So it's giving examples of types of things that might... Yes, but whether you're entitled to in-home care doesn't fall into the such as.

[00:09:52] Speaker 03:
It isn't of the same...

[00:09:56] Speaker 03:
And so what about this language should Congress have taken away that whether someone needs in-home care or not is a medical determination as opposed to the type of in-home care that they're going to receive?

[00:10:14] Speaker 05:
Well, I mean, I think that, you know, again, there is this language in the regulation giving examples of types of medical determinations or descriptions of medical determinations, but I still think you can't get away from the fact that Congress had to have meant something by medical determinations, and there's no other plausible explanation for it.

[00:10:32] Speaker 03:
But you want me to assume by implication that what they meant was this was the type of medical determination that you articulate in the regulation.

[00:10:40] Speaker 03:
But that same regulation says domiciliary care decisions are appealable to the board.

[00:10:45] Speaker 03:
And that's exactly what the Caregiver Act is.

[00:10:47] Speaker 03:
So I'm really struggling.

[00:10:49] Speaker 03:
Given, quite frankly, I think your argument's very confusing.

[00:10:53] Speaker 03:
Because forget about the Caregiver Act.

[00:10:56] Speaker 03:
If I was asked to interpret this regulation on its face, forget about the Caregiver Act.

[00:11:01] Speaker 03:
I would conclude domiciliary care and whether it should be awarded or not is clearly something the board has jurisdiction over.

[00:11:08] Speaker 03:
Do you agree with that?

[00:11:09] Speaker 03:
If the caregiver actor can use the word medical determination, would you agree that there is no doubt it falls within the first portion of this regulation?

[00:11:20] Speaker 05:
I think that the reason that not all of the decisions under the Caregiver Act absent that language would fall under the regulation is because the very first part of the Caregiver Act does say the point of the Caregiver Act is to give assistance to the family givers, not define whether to... I think the hypothetical was setting aside the Caregiver Act, would you agree?

[00:11:41] Speaker 02:
Right.

[00:11:41] Speaker 02:
I mean, that's not... It's a hypothetical.

[00:11:43] Speaker 02:
Could you address the hypothetical?

[00:11:44] Speaker 05:
Yes, and I think if it were just strictly addressing the need for domiciliary care or the type of domiciliary care, that would be the case.

[00:11:53] Speaker 05:
But in this case, we're not addressing specifically the domiciliary care, but whether the caregivers get certain benefits and assistance when the veteran is already under that domiciliary care.

[00:12:05] Speaker 05:
So I don't think it's exactly the same thing.

[00:12:08] Speaker 01:
Before we run out of time here, I've got a more fundamental question for you.

[00:12:13] Speaker 01:
And that is, why is the regulation, put aside the Caregiver Act, why is the regulation 104A consistent with the statute?

[00:12:24] Speaker 01:
What in the statute authorizes this regulation?

[00:12:28] Speaker 05:
In the PCSC or in the VJR?

[00:12:31] Speaker 01:
I mean, medical care is a benefit, okay?

[00:12:34] Speaker 01:
The statute makes benefits reviewable by the board.

[00:12:37] Speaker 01:
How is it that this regulation is valid?

[00:12:41] Speaker 01:
Put aside the whole caregiver question.

[00:12:43] Speaker 01:
What in the statute authorizes this regulation?

[00:12:48] Speaker 01:
What part of the statute is being construed in this regulation to foreclose medical care determinations from review by the Board and by the Veterans Court?

[00:13:00] Speaker 05:
Well, this regulation, again, which predates the VJRA for some years, has been valid since before the VJRA and has been continued to see.

[00:13:09] Speaker 01:
What do you mean it's been valid?

[00:13:11] Speaker 01:
Why?

[00:13:12] Speaker 01:
Why is it valid?

[00:13:13] Speaker 01:
What provision of the statute authorizes this regulation?

[00:13:17] Speaker 05:
Well, the VJRA, again, post-dated the regulation.

[00:13:21] Speaker 05:
And the VJRA, as such, Congress was presumably aware of this regulation when it enacted the VJRA.

[00:13:28] Speaker 05:
And under the regulation, certain types of decisions were never subject to board review.

[00:13:33] Speaker 05:
And then consequently, when the VJRA came out and gave Veterans Court jurisdiction over board decisions, it already accounted for and encapsulated.

[00:13:42] Speaker 03:
I think that maybe we're not

[00:13:45] Speaker 03:
getting clear communication.

[00:13:47] Speaker 03:
So unless I'm mistaken, I think that what Judge Dyke is asking you is, what statutory section gave the VA the authority to decide the board would have no review over some things, like medical determinations?

[00:13:59] Speaker 03:
What statutory section allowed the VA to carve out jurisdiction from otherwise a very broad grant jurisdiction in the statute itself?

[00:14:09] Speaker 03:
Is that what you would?

[00:14:09] Speaker 04:
Yes.

[00:14:10] Speaker 03:
I thought that was what you were getting at.

[00:14:11] Speaker 03:
So this has nothing to do with the media.

[00:14:14] Speaker 03:
Forget the Caregiver Act in its entirety.

[00:14:18] Speaker 03:
Where did Congress give the Secretary the authority to decide it wouldn't have jurisdiction over certain questions?

[00:14:25] Speaker 05:
I'm not sure exactly the genesis of the original VA regulations.

[00:14:30] Speaker 02:
Do you know if the implementing statutes are that the regulation identifies?

[00:14:35] Speaker 05:
I don't have that available.

[00:14:37] Speaker 02:
It's 38 USC section 511 and 38 USC 7104.

[00:14:45] Speaker 05:
Right.

[00:14:45] Speaker 05:
And 511 does hold that decisions of the VAR to be held as conclusive and final with certain exceptions, such as those enumerated in section 72 of the VJRA.

[00:14:56] Speaker 05:
And I think the predecessor to 511 was section 211.

[00:15:00] Speaker 05:
And 511 is still good law and is still on the books.

[00:15:04] Speaker 05:
And again, I would say that the VJRA.

[00:15:06] Speaker 02:
But what language in there are you relying on?

[00:15:10] Speaker 02:
for support for the authority to make medical determinations not appealable.

[00:15:17] Speaker 05:
Well, I do believe that, at the very least, and I know that this is not in the statute, but in the claims court, the court decided in 1985 in Slotnik that the reason for 211, which is the predecessor to 511, was to prevent technical and complex medical determinations engendered in such claims from burdening the courts with the obligation of judicial review.

[00:15:41] Speaker 05:
So again, this is a very longstanding history of medical determinations not

[00:15:45] Speaker 05:
being subject to board review and that was not nullified by the VJRA and the Caregiver Act Congress.

[00:15:52] Speaker 02:
But what language in the VJRA are you relying on for that conclusion that it wasn't nullified?

[00:15:58] Speaker 05:
Because Congress had presumptive knowledge of that regulation, and so there was nothing in the VJRA that would have nullified absent language or intent to do so, what was then 2.11 and what's now 5.11, as well as the VA regulation, given that they would have already had

[00:16:16] Speaker 05:
knowledge of that.

[00:16:18] Speaker 02:
Doesn't Section 511 say the Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary, right?

[00:16:31] Speaker 05:
Yes.

[00:16:31] Speaker 02:
So it's any provision of benefits.

[00:16:32] Speaker 02:
Do you agree the Caregiver Act is providing benefits?

[00:16:37] Speaker 05:
It is providing certain benefits to the caregivers.

[00:16:40] Speaker 02:
And the veteran?

[00:16:42] Speaker 05:
I think, specifically, it's providing the benefits to the caregivers.

[00:16:45] Speaker 05:
But the veterans are part of it, too.

[00:16:46] Speaker 02:
Which can affect those benefits to the veteran, right?

[00:16:48] Speaker 02:
Sure.

[00:16:49] Speaker 02:
OK.

[00:16:50] Speaker 03:
I have a question that isn't related to the language, but it's more related to process.

[00:16:55] Speaker 03:
Can you please help me understand what the current state of these issues are with regard to ongoing cases?

[00:17:07] Speaker 03:
For example, in debris.

[00:17:09] Speaker 03:
Someone said that as of, I think, November of 2022, more than 430,000 notices of appeal rights were extended to veterans because of decisions under the Caregiver Act.

[00:17:24] Speaker 03:
So I want to know if you can help me understand what is the current state of that.

[00:17:31] Speaker 03:
And I don't mean each individual decision, of course.

[00:17:33] Speaker 03:
I just mean roughly how many.

[00:17:35] Speaker 03:
That was as of November of 2022, or more than a year fast forward, how many notices

[00:17:39] Speaker 03:
have been issued.

[00:17:41] Speaker 03:
What is the status of those cases?

[00:17:43] Speaker 03:
Are they docketed?

[00:17:44] Speaker 03:
Are people filing them?

[00:17:46] Speaker 03:
Has the board decided some?

[00:17:47] Speaker 03:
I mean, what's going on now?

[00:17:49] Speaker 03:
Because if I understand the facts right, prior to this mandamus, the board was never deciding Caregiver Act-related cases.

[00:18:00] Speaker 03:
And that now, there's been a slew of notices and other things.

[00:18:05] Speaker 03:
I want to know the lay of the land.

[00:18:06] Speaker 03:
What is the impact of this been?

[00:18:09] Speaker 05:
So my understanding from talking to the VA about this is that, as you mentioned, they did decide to not stay the court's order on the mandamus.

[00:18:20] Speaker 05:
And so they did start to allow board appeals of PCAFC decisions.

[00:18:25] Speaker 05:
And as you noted, that there's been somewhere north of 400

[00:18:30] Speaker 05:
appeals and decisions issued by the board and the most of them were actually... Sorry, 400, not 400,000.

[00:18:44] Speaker 05:
I don't have that with me.

[00:18:47] Speaker 05:
What I have is that as of some months ago, there were 400 something decisions by the board.

[00:18:52] Speaker 03:
Oh, that's decisions by the board.

[00:18:54] Speaker 03:
Oh, okay.

[00:18:55] Speaker 03:
Keep in mind, there's going to be decisions by the board and notice to people who may be eligible to bring cases before the board, right?

[00:19:01] Speaker 03:
It's red brief number 15, page 15.

[00:19:19] Speaker 03:
yes I think in the footnote text says there have been the veteran VA has sent out over 430,000 notices to veterans and caregivers

[00:19:32] Speaker 05:
Yes, but that includes any veterans and caregivers who at any time had applied to their caregiver program.

[00:19:37] Speaker 05:
So I don't know exactly how many of those people who were sent notices decided to appeal to the board.

[00:19:44] Speaker 05:
But what we do know is that the board has issued somewhere north of 400 decisions as of a few months ago.

[00:19:52] Speaker 01:
How have those come out?

[00:19:53] Speaker 05:
Most of them were actually just remands for the purposes of curing notice and or obtaining a more specific statement because I think that most of those decisions that were appealed to the board had been issued prior to the Veterans Court's decision in mandamus and so I don't think that those decisions were

[00:20:10] Speaker 05:
necessarily set up for a board review, so they had to remand back for things such as curing notice or issuing a statement of the case for the board to be able to fully consider it.

[00:20:20] Speaker 02:
In other words, they had to provide a more fulsome analysis of why there was a denial.

[00:20:26] Speaker 05:
or a notice, but I think as my numbers have been that there are only, as of at least the end of 2002, that there were only seven actual grants by the board.

[00:20:39] Speaker 03:
2002?

[00:20:41] Speaker 05:
Sorry, 2022.

[00:20:41] Speaker 05:
OK, all right.

[00:20:43] Speaker 03:
Yes.

[00:20:44] Speaker 03:
There are seven grants?

[00:20:45] Speaker 05:
At least, yes, as of several months ago.

[00:20:48] Speaker 05:
Although, apparently, two of those grants were subsequently vacated.

[00:20:56] Speaker 05:
And then the remaining five grants were grants for higher tier stipends.

[00:21:01] Speaker 05:
So very free.

[00:21:02] Speaker 03:
What happened in Mr. Baudet's case?

[00:21:04] Speaker 05:
So what happened in Mr. Baudet's case is that the Baudets, I think, tried to appeal to the board.

[00:21:10] Speaker 05:
They filed a notice of disagreement, which is a precursor to

[00:21:14] Speaker 05:
appealing to the board.

[00:21:16] Speaker 05:
And after the BoDETs had filed their petition, the VA determined to issue a statement of the case and reconsider the eligibility.

[00:21:27] Speaker 05:
And the BoDETs were found eligible.

[00:21:29] Speaker 05:
So they never actually did appeal to the board or receive a board decision.

[00:21:33] Speaker 03:
Oh, OK.

[00:21:33] Speaker 03:
So just out of curiosity.

[00:21:36] Speaker 03:
Why is it that that doesn't move this case?

[00:21:39] Speaker 05:
There's a few reasons.

[00:21:40] Speaker 05:
I think the biggest one is that this is certainly something that's capable of evading review, particularly since the VA is not allowed to appeal from board decisions.

[00:21:50] Speaker 05:
So it would be a harm capable of evading review and certainly capable of occurring again, given that this is not just a decision by the Veterans Court that applies to the bow debts, but applies

[00:22:00] Speaker 05:
across to the entire caregiver act.

[00:22:03] Speaker 05:
So I think that's one reason it wouldn't be mooted.

[00:22:05] Speaker 05:
Another reason is that, at least my understanding and counsel can correct me if I'm mistaken, but that another claimant was added to the class for the purposes of ensuring that this wasn't mooted.

[00:22:18] Speaker 03:
Okay, so another question I have with regard to this is why didn't the board act?

[00:22:27] Speaker 03:
And how long did it take for the mandamus was sought.

[00:22:31] Speaker 03:
And what I mean by that is if the board believed it had no jurisdiction over the caregiver appeal, why didn't it dismiss the caregiver appeal for lack of jurisdiction?

[00:22:42] Speaker 03:
Why did it do nothing?

[00:22:45] Speaker 01:
We have to follow up on that 104.

[00:22:47] Speaker 05:
My understanding, obviously I can't speculate as to the board's internal process, but my understanding is that the Bodets try to

[00:23:07] Speaker 05:
looking for where I put this.

[00:23:09] Speaker 01:
They tried to run the matter in the board, but the board didn't do anything, right?

[00:23:14] Speaker 05:
Yes, they tried to appeal to the board.

[00:23:16] Speaker 05:
The board did not act, I believe, because the VA never issued a statement of the case

[00:23:22] Speaker 05:
And then after the petition, the VA issued the Bodez favorable decision in response to the Bodez notice of disagreement.

[00:23:31] Speaker 05:
So I think that the board didn't consider the appeal because the VA didn't respond to the notice of disagreement.

[00:23:38] Speaker 05:
I do believe that in other cases, so there are the Bodez decision where the board never issued a decision

[00:23:43] Speaker 05:
My understanding is that, unfortunately, I don't have the case names in front of me.

[00:23:47] Speaker 05:
But there were other claimants in a similar situation to the Beaudet where their case did make it to the board.

[00:23:53] Speaker 05:
And the board did issue a decision predating the Veterans Court's order that it did not have jurisdiction under the PCC to consider their cases.

[00:24:02] Speaker 03:
And I realize that you had a lot to have to prepare for today.

[00:24:06] Speaker 03:
So if you don't know this, don't worry.

[00:24:07] Speaker 03:
It's kind of a very tangential question.

[00:24:09] Speaker 03:
But do you know how long it was?

[00:24:10] Speaker 03:
I don't know the timing in this case.

[00:24:13] Speaker 03:
So the Voguex filed a notice of appeal at some point.

[00:24:19] Speaker 03:
And you're saying the VA didn't respond to that notice of appeal?

[00:24:23] Speaker 03:
Am I understanding those facts right?

[00:24:27] Speaker 05:
Yes, my understanding is that the board

[00:24:30] Speaker 05:
first went through the clinical appeals process, was denied at both levels.

[00:24:36] Speaker 05:
Apparently, they sought to appeal the final VHA clinical appeals process in August of 2019, and then... That sought to appeal...

[00:24:46] Speaker 03:
that to the board?

[00:24:47] Speaker 03:
Is that the appeal to the board August of 2019?

[00:24:50] Speaker 05:
That is what the Bodex brief states, yes.

[00:24:54] Speaker 05:
And they cite appendix 1267 to 1273 and then didn't receive a response and then approximately 10 or 11 months later filed a petition for rid of mandamus.

[00:25:11] Speaker 03:
So why

[00:25:15] Speaker 03:
Why didn't you seek to expedite this field or get a say?

[00:25:19] Speaker 03:
I'm baffled.

[00:25:21] Speaker 03:
I'm truly baffled.

[00:25:22] Speaker 03:
If the government thought it should prevail, why in the world would you all send 430,000 notices to people saying they have appeal rights?

[00:25:32] Speaker 03:
I have to say, I know I'm not supposed to maybe look at that as evidence that you thought your case was weak.

[00:25:39] Speaker 03:
But I don't know how else to interpret it, because you've now created a scenario

[00:25:42] Speaker 03:
in which you gave 430,000 veterans an expectation of review when you're claiming they shouldn't have one.

[00:25:50] Speaker 03:
I feel like that makes it harder to overturn the apple cart since you put some horses on it and took it into an impoverished area.

[00:26:00] Speaker 05:
Yes.

[00:26:01] Speaker 05:
I mean, certainly that was, without divulging too much about the internal process, certainly that was something that was discussed whether to seek a stay.

[00:26:09] Speaker 03:
But you didn't even ask for expedited appeal.

[00:26:12] Speaker 03:
So you now only get 430,000 notices.

[00:26:15] Speaker 03:
That's more than a year ago.

[00:26:17] Speaker 03:
You've got over 400 decisions, some of which awarded benefits.

[00:26:20] Speaker 03:
So what now if we say there's no review, those veterans now lose the benefits that the board decided they were entitled to because it turns out the board never had review authority and therefore shouldn't have overturned the negative ruling that they got?

[00:26:34] Speaker 05:
My understanding is that the board's, I think, very few number of grants of higher level benefits would not be reversed at this point.

[00:26:44] Speaker 03:
But your data is only as of the end of 2022 and we're now at the end of 2023.

[00:26:49] Speaker 05:
Yes, I don't have the exact numbers of grants.

[00:26:52] Speaker 03:
Could I ask you to get that and submit it to the court?

[00:26:54] Speaker 05:
I will try to look for that, yes.

[00:26:56] Speaker 03:
I mean, after this.

[00:26:57] Speaker 03:
I don't mean during this.

[00:26:58] Speaker 03:
No, yes.

[00:26:58] Speaker 03:
I mean, make a submission to the court that gives me updated numbers on, if possible, the number of notices and appeals that have been sent out, the number of cases filed with the board, if that's possible.

[00:27:11] Speaker 03:
Whatever is obtainable.

[00:27:12] Speaker 03:
I'm not asking for Herculean efforts, Ms.

[00:27:14] Speaker 03:
Bae.

[00:27:15] Speaker 03:
I'm just saying whatever the VA can provide in the way you seem to know readily that there have been 400 decisions as of the end of 2022.

[00:27:22] Speaker 03:
and that seven of them awarded benefits.

[00:27:25] Speaker 03:
So obviously, that was ascertainable.

[00:27:27] Speaker 03:
Is there any way to update that information to reflect through the current time?

[00:27:32] Speaker 05:
Yes, I will certainly.

[00:27:33] Speaker 03:
But not Herculina, right?

[00:27:35] Speaker 03:
And if you could update that, that would be useful.

[00:27:38] Speaker 01:
Is there an answer to the question of why you didn't seek a stay?

[00:27:42] Speaker 05:
Yes, I believe that it was in conjunction with the Secretary himself and with the agency and DOJ to decide and go forward and not seek the stay.

[00:27:55] Speaker 05:
We did not believe that the stay would be successful, so we just decided to go ahead and appeal.

[00:28:00] Speaker 02:
What about expediting?

[00:28:02] Speaker 02:
Why was there no attempt to expedite?

[00:28:05] Speaker 05:
I believe the idea was discussed briefly.

[00:28:07] Speaker 05:
I can't answer why we determined to simply go through a regular level of appeal but I do think that this also highlights and I know this is

[00:28:16] Speaker 05:
delving into a different area of the case, but about also the whole issue of the baudette's right to mandamus outside of the merits and their ability to have sought review, which actually would have come to a speedier resolution had they brought a 502 petition instead.

[00:28:31] Speaker 01:
Let me ask you about 502.

[00:28:34] Speaker 01:
There's no regulation that's being reviewed.

[00:28:37] Speaker 01:
It's just an interpretation of the regulation.

[00:28:40] Speaker 05:
Well, there's no regulation.

[00:28:41] Speaker 01:
So does 502 apply to interpretations of regulation?

[00:28:45] Speaker 05:
I think that 502 would apply because 502 allows direct review for actions of the secretary in which sections 552A and 553

[00:28:56] Speaker 05:
take place.

[00:28:57] Speaker 05:
And 553, to my knowledge, just has to do with rulemaking, not the regulation published itself.

[00:29:03] Speaker 05:
And VA did undergo a rulemaking process and did state specifically in both its 2015 and 2020 final rules that- Are there cases under 553 that have allowed interpretations that came out of rulemaking to be reviewed?

[00:29:19] Speaker 05:
I'm not aware of a specific

[00:29:23] Speaker 05:
case to that point, but I do say I will say that 502 allows review in this court directly of VA rulemaking, so I don't think it's necessary that VA would have had to implement a specific review.

[00:29:37] Speaker 05:
So you don't have a case?

[00:29:38] Speaker 05:
I don't have a case in front of me.

[00:29:40] Speaker 05:
I also know that in the Sullivan case, which is a related case that stayed but addressing a very similar issue, what the Sullivans did is petition VA for rulemaking, finding that

[00:29:52] Speaker 05:
that PCAFC decisions were subject to board review, and VA denied that, and the Sullivans are using that as the nexus for their argument.

[00:30:01] Speaker 04:
But that didn't happen here.

[00:30:01] Speaker 05:
That didn't happen here, but again, we're not contending that the Beaudets would have had to petition for rulemaking, but rather that it could have relied on the VA's 2015 and or 2020 rulemakings as

[00:30:12] Speaker 05:
the impetus for their 502 petitions.

[00:30:16] Speaker 05:
And again, I would say that even if they had petitions for rulemaking, I think that this court addressing the issue directly would have led to a speedier resolution than going through the VA in the first place.

[00:30:25] Speaker 01:
So why wasn't the regulation amended after the Caregiver Act?

[00:30:30] Speaker 05:
You mean 20.104?

[00:30:33] Speaker 01:
I don't think that there was any reason to amend the regulation after the caregiver... There's been some reasons to amend the regulation given that it seems not to apply to this situation.

[00:30:43] Speaker 05:
Well, we certainly, I mean, VA's understanding is that the regulation does apply to this situation.

[00:30:49] Speaker 05:
And certainly, if this court determines to uphold the veteran's choice decision, I can't say what VA or Congress will do in response to that.

[00:30:57] Speaker 05:
But at the time that the PCAFC and its amendments were passed, VA's interpretation was that subsection C

[00:31:06] Speaker 05:
referred to the rule and, therefore, exempted PCAFC decisions from board review, and, therefore, there was no reason to amend it.

[00:31:14] Speaker 01:
Do you think it is normal, of course, that an agency, given a confusing regulation, which on its place appears not to apply to caregiver decisions, would amend the regulations to fix it?

[00:31:24] Speaker 01:
Well, I... That didn't happen.

[00:31:25] Speaker 01:
I don't understand why.

[00:31:26] Speaker 01:
Well, again, I disagree.

[00:31:28] Speaker 01:
Instead of this interpretation in the Federal Register, very strange.

[00:31:31] Speaker 05:
I can't speak to exactly why VA didn't amend, but I would disagree that the regulation is confusing.

[00:31:38] Speaker 05:
It specifically does exempt medical determinations from board review and Congress specifically construed Caregiver Act decisions as medical determinations.

[00:31:48] Speaker 05:
I see if the court has no more questions, I'm not sure if I get any time on the phone.

[00:31:54] Speaker 03:
You need to get all your votes.

[00:31:55] Speaker 03:
All right, thank you.

[00:31:55] Speaker 03:
It's an important case.

[00:31:56] Speaker 03:
We want to try and figure it out.

[00:31:57] Speaker 03:
Thank you.

[00:31:57] Speaker 03:
Thank you.

[00:31:59] Speaker 03:
Tell me how to say your name, counsel.

[00:32:02] Speaker 00:
Timofia.

[00:32:03] Speaker 00:
Oh, you're going to have to say it again.

[00:32:05] Speaker 00:
I have some story.

[00:32:06] Speaker 03:
Timofia.

[00:32:06] Speaker 03:
Mr. Timofia.

[00:32:08] Speaker 03:
Please proceed.

[00:32:13] Speaker 00:
Thank you, Ana.

[00:32:13] Speaker 00:
It may please the court.

[00:32:15] Speaker 01:
I'd like to focus on this question.

[00:32:18] Speaker 01:
What about 104A?

[00:32:19] Speaker 01:
Is that a valid regulation, please, to one side, to caregiver A?

[00:32:25] Speaker 00:
Your Honor, we haven't challenged the regulation.

[00:32:27] Speaker 01:
I understand.

[00:32:28] Speaker 01:
The question is, is it valid?

[00:32:30] Speaker 00:
We're not sure.

[00:32:31] Speaker 00:
We're not sure it is.

[00:32:32] Speaker 00:
We don't think it's valid if the issue were before the court.

[00:32:36] Speaker 00:
The regulation itself sets two states.

[00:32:38] Speaker 01:
So if you win, the regulation falls too?

[00:32:42] Speaker 00:
I'm sorry, Your Honor?

[00:32:42] Speaker 01:
If you win this case, the regulation falls as well?

[00:32:48] Speaker 00:
We can, it could, but we can also win this case even with the regulation in the books, and I'm happy to explain how that could be.

[00:32:55] Speaker 01:
OK, do that.

[00:32:56] Speaker 01:
Tell me what the difference is between the regulation and the interpretation of the regulation in terms of statutory authority.

[00:33:03] Speaker 00:
Absolutely, Your Honor.

[00:33:04] Speaker 00:
So if we look at the regulation, as I think Chief Jeshmore already observed, it expressly says that the board's appellate jurisdiction extends the questions of eligibility, such as for hospitalization, for home and domiciliary care, and also for devices.

[00:33:18] Speaker 01:
You're not addressing my question.

[00:33:19] Speaker 01:
My question is statutory authorization for the regulation.

[00:33:25] Speaker 01:
Forget about parsing the regulations applied in the Caregiver Act.

[00:33:29] Speaker 01:
What is the statutory authority for this regulation and how does it differ from the interpretation that the VA has placed on the regulation with respect to the Caregiver Act?

[00:33:40] Speaker 00:
So Your Honor, the statute that the regulation self-cites as authority, it cites Section 511A and Section 7104.

[00:33:49] Speaker 00:
We think the regulation actually seems inconsistent with Section 7104, because that section says that all final decisions for the Secretary shall be made by the board.

[00:33:58] Speaker 00:
And then this regulation withdraws a subset of decisions from the board's jurisdiction.

[00:34:04] Speaker 00:
So in that sense, it does seem inconsistent.

[00:34:06] Speaker 00:
But this court doesn't actually need to invalidate the regulation.

[00:34:10] Speaker 01:
We have to worry about being consistent.

[00:34:14] Speaker 01:
And if your victory in this case is going to throw out the regulation, that lends even more significance to what we're doing.

[00:34:24] Speaker 03:
you know that is right but I think we we can actually work without I think you didn't file a 502 action challenging this regular we did not and you didn't argue in your brief anywhere that I could see that this regulation is invalid is that correct you want to that is correct we are not challenging the regulation I was I was answering judge that question as to now am I also correct in understanding that this regulation could stand

[00:34:50] Speaker 03:
completely and continue to be operable whether valid or not for another case to decide potentially but it has nothing to do with your argument because your argument is the words medical determinations and the Caregiver Act aren't predicated on this regulation.

[00:35:07] Speaker 00:
Absolutely one, and for two reasons.

[00:35:09] Speaker 00:
One deals with regulation, one deals with the actual language of Section C-1.

[00:35:13] Speaker 00:
So regulation itself, the scope of what constitutes a medical determination on regulation is very narrow.

[00:35:18] Speaker 01:
What's the distinction between the two?

[00:35:20] Speaker 01:
I'm trying to understand.

[00:35:22] Speaker 01:
If we're going to render a decision in your favor, I want to know whether the effect of that decision down the road is going to invalidate 104A.

[00:35:30] Speaker 01:
What's the distinction?

[00:35:32] Speaker 01:
Is there an argument for preserving 104A?

[00:35:35] Speaker 01:
while invalidating this interpretation that includes the Caregiver Act within 104 Act?

[00:35:42] Speaker 00:
Yes, Your Honor.

[00:35:43] Speaker 00:
So looking at the Caregiver Act, Section C1 actually, it doesn't say that all decisions on the Caregiver Act shall be medical determination.

[00:35:50] Speaker 00:
It only says decisions affecting the furnishing of assistance or support shall be medical determination.

[00:35:56] Speaker 00:
That's a discrete set of decisions concerning the provision of care or treatment.

[00:36:00] Speaker 00:
it doesn't actually extend to determinations of eligibility, which often have nothing to do, involve no medical judgment.

[00:36:06] Speaker 00:
For instance, whether caregiver is a stepchild of the veteran, whether he is non-family member living with a veteran, and therefore is a family member under the statute, that involves no political judgment or judgmental treatment.

[00:36:20] Speaker 00:
So those eligibility determinations are not actually reviewed, or the review of those is not prohibited under section C1.

[00:36:28] Speaker 00:
And then the regulation itself, the meaning of what constitutes medical determination under the regulation is there in error.

[00:36:35] Speaker 00:
It's really just the judgmental treatment decisions.

[00:36:38] Speaker 00:
And so there can be medical decisions that are not really judgmental treatments.

[00:36:43] Speaker 00:
I mean, the board reviews questions of disability, reviews such questions, which are medical, such as whether a veteran has PTSD, whether the veteran has depression.

[00:36:53] Speaker 00:
That has never presented a problem for the board.

[00:36:56] Speaker 00:
If you look at the understanding of medical elimination under the rag and under Colvin, it's a very narrow subset of decisions which are based on the clinical physicians' treatment decisions that the board actually does not have the expertise to review.

[00:37:09] Speaker 00:
And then the regulation itself actually, again, it vests the board with jurisdiction over questions of eligibility for hospitalization, for common domiciliary care, for devices such as wheelchairs.

[00:37:19] Speaker 03:
Is your argument, so in this case, the Bogats were

[00:37:26] Speaker 03:
In fact, not even granted the decision by the board, but suppose that it had been dismissed.

[00:37:32] Speaker 03:
Is your argument that in the Bodez case, since their claim was to give entitlement to domiciliary care in general, that that would have been appealable?

[00:37:41] Speaker 03:
Even under this regulation?

[00:37:43] Speaker 00:
We believe that under this regulation, it should have been appealable.

[00:37:46] Speaker 00:
Because what the VA's decision was, the VA said that they were not eligible.

[00:37:51] Speaker 00:
Well, initially, they were found eligible.

[00:37:53] Speaker 00:
Then the decision in 2018, in February 2018.

[00:37:55] Speaker 03:
He took away after he had the two surgeries and couldn't show up to the appointment.

[00:38:00] Speaker 03:
So I guess what I'm saying to you is, at least in the context of this case, that your argument is it goes under the first sentence,

[00:38:10] Speaker 03:
And it would be different.

[00:38:11] Speaker 03:
Would you agree that under this regulation, the board would not have jurisdiction over it under this regulation if, for example, the question wasn't are they entitled to in-home care?

[00:38:24] Speaker 03:
But should the in-home care offer bathing services or only transportation?

[00:38:30] Speaker 03:
The nature of the precise type of treatment that he was going to get at home is

[00:38:36] Speaker 03:
Is that what would fall within the medical determinations language by virtue of the regulation?

[00:38:40] Speaker 03:
Forget about the statute.

[00:38:42] Speaker 03:
If this were just under the regulation, would you agree that individual nuanced decisions about what types of treatments he was entitled to within the home, those treatment decisions, would fall under the medical determinations rubric and not be available to the board?

[00:38:55] Speaker 00:
Your honor, yes, it's hard to speak in a hypothetical.

[00:38:59] Speaker 00:
But taking it as a hypothetical, yes, we would agree.

[00:39:02] Speaker 00:
And that's indeed the distinction.

[00:39:03] Speaker 00:
And actually, but in any case, it would be for the board to make that determination.

[00:39:08] Speaker 00:
Because the regulation says that only, I'm quoting from the 1992 version, which was in effect when the caregiver act was passed, but the current regulation says almost the same.

[00:39:17] Speaker 00:
Only the Board of Veterans' Appeals will make final decisions with respect to jurisdiction.

[00:39:21] Speaker 00:
And the regulation also says all claimants have the right to appeal a determination made by the VHA that the Board does not have jurisdictional authority to review a particular issue.

[00:39:32] Speaker 00:
Let me give you like an example based on the statute.

[00:39:35] Speaker 01:
Let me be clear about what you're saying.

[00:39:38] Speaker 01:
Are you interpreting this construction provision of the Caregiver Act as having limited applicability in terms of precluding board review?

[00:39:51] Speaker 01:
And you're saying it doesn't, even the statutory language doesn't apply to the situation that we're dealing with here.

[00:39:59] Speaker 01:
Is that the point that you're making?

[00:40:01] Speaker 00:
That is exactly right, Judge Dyke, because the statute only applies to, again, the language of a statute is to decisions affecting the furnishing of care.

[00:40:11] Speaker 00:
So these are decisions about particular type of treatment or particular type of support that the caregiver shall get.

[00:40:16] Speaker 00:
It doesn't extend the question of eligibility.

[00:40:18] Speaker 00:
If Congress wanted to approve recruitment- Wait, you're saying it doesn't.

[00:40:21] Speaker 03:
You mean the regulation doesn't.

[00:40:22] Speaker 03:
I just want to make sure I'm tracking what you're saying.

[00:40:24] Speaker 00:
No, absolutely.

[00:40:26] Speaker 00:
So the statute itself, section C1, only says that what will be considered medical determination are decisions affecting the furnishing of assistance or support.

[00:40:37] Speaker 00:
So decisions of eligibility are not really decisions affecting the treatment of support.

[00:40:43] Speaker 00:
They don't affect the provision of support or assistance.

[00:40:46] Speaker 00:
They predicate determinations.

[00:40:48] Speaker 00:
If Congress wanted to say that no decision on the caregiver program shall be reviewable by the board, it could have used the language it used in the VA Emission Act, where it says that these will be clinical determinations not subject to the board review.

[00:41:01] Speaker 00:
It didn't do it here.

[00:41:02] Speaker 00:
So this court has, in order to give meaning to Section C1, it has to actually say that the term that they reference to decisions affecting the furnishing of assistance or support is more narrow than all decisions made under the Caregiver Act.

[00:41:18] Speaker 00:
And we think that the regulation supports that construction because the regulation says the board shall have jurisdiction over decisions, questions of eligibility for hospitalization, eye patient treatment, and for other benefits administered by the Veterans Health Administration.

[00:41:35] Speaker 00:
That's the exact agency that administers the caregiver benefits.

[00:41:38] Speaker 02:
And it's your position that that language about what the board has jurisdiction over is also consistent with the VJRA, right?

[00:41:44] Speaker 00:
It is absolutely consistent.

[00:41:46] Speaker 00:
I mean, the VGRA is a general background.

[00:41:48] Speaker 00:
It says that there will be provision, there will be judicial review from all decisions by the board.

[00:41:54] Speaker 00:
And then, obviously, section 7104 says that all final decisions by the secretary shall be rendered by the board.

[00:42:01] Speaker 03:
So the-

[00:42:04] Speaker 03:
Yes.

[00:42:05] Speaker 00:
So we think that when Congress passed this law, it passed it against the general background of EGRA.

[00:42:12] Speaker 00:
And certainly, if Congress wanted to take such a momentous step as to preclude all board review and all judicial review of all decisions under the Caregiver Act, it would have used a more clear language than just said the term medical determination without explaining what it meant, without even referencing this regulation.

[00:42:29] Speaker 00:
But even if Congress really looked at the regulation, the regulation itself doesn't foreclose all decisions of eligibility from the board review.

[00:42:37] Speaker 00:
And it says that it is the board that will determine what is reviewable by the board and what is not under this regulation.

[00:42:42] Speaker 01:
We can give effect to the statute in terms of preclusion of board review, but interpret it in a way that's limited and doesn't apply to the MoDep situation.

[00:42:54] Speaker 00:
Absolutely, Your Honor.

[00:42:56] Speaker 00:
And one example is in the second level of review for the Budettes, they actually received a decision saying that the DHA could not determine whether or not Mr. Budette was unable to perform activities of a daily living because there was no in-person exam.

[00:43:12] Speaker 00:
I mean, it's hard to say how that is actually, that rationale involves some kind of clinical judgment to judge mental treatment.

[00:43:18] Speaker 00:
The first level denials that he received provided no reason whatsoever.

[00:43:22] Speaker 00:
And actually, partially responding to Judgemore, your question to my friend earlier, in terms of how many decisions were issued by the board.

[00:43:31] Speaker 00:
So we ran the same search of public databases of the board that we ran last year, and it's on page 53 of our brief.

[00:43:42] Speaker 00:
At the time, we found slightly over 250 decisions where the board remanded cases to the DHA because it actually said the decisions were conclusory and it could not have been... Did you redo that search at all?

[00:43:55] Speaker 00:
We redid that search yesterday.

[00:43:56] Speaker 00:
We came up with around 1,000 decisions.

[00:44:00] Speaker 02:
These are 1,000 decisions, many of which are remand decisions?

[00:44:04] Speaker 00:
It's 1,000 remands.

[00:44:05] Speaker 00:
1,000 remands.

[00:44:06] Speaker 00:
And I will give, actually, just one example.

[00:44:08] Speaker 00:
And we can provide citations, submit the decision to the court.

[00:44:11] Speaker 00:
There was one decision where the board said, well, the VHA denied the veterans a legibility for caregiver benefits on the basis of its regulation that this court subsequently invalidated in warrior veterans.

[00:44:28] Speaker 00:
And so the board said, well, obviously these benefits cannot be denied because the rationale was reliance on the regulation that this court has struck down.

[00:44:38] Speaker 00:
Again, that does not, there is no reason why that decision cannot be made by the board.

[00:44:43] Speaker 00:
There is nothing clinical to that decision.

[00:44:45] Speaker 00:
There is no judgmental treatment element.

[00:44:47] Speaker 00:
There is really nothing medical to such a decision.

[00:44:50] Speaker 00:
So, again, we think, even putting aside whether this regulation is valid and we did not challenge it, we think that there is a way to read the statute, both given the meaning of a narrow scope of Section C1, which does not extend to eligibility decisions,

[00:45:07] Speaker 00:
and also giving it a given meaning even to the regulation on which the government relies.

[00:45:11] Speaker 00:
So even assuming that when Congress passed this law, it intended to really codify or somehow recreate the entire scope of this regulation, this regulation only exempts from the board review a very narrow subset of decisions and expressly authorizes the board to review questions of eligibility and to make determinations what is reviewable by the board or what is not reviewable within the scope of the regulation.

[00:45:35] Speaker 03:
I'm very pleased with your argument.

[00:45:38] Speaker 03:
It has done a very nice job of saying how everything can be consistently interpreted.

[00:45:44] Speaker 03:
Can I ask whether you think the argument you're making today is consistent with what the Veterans Court held with regard to all of this?

[00:45:55] Speaker 03:
Because I read the Veterans Court decision as more broadly stating board

[00:46:03] Speaker 03:
review authority than what you are what you are for us today is Some caregiver act decisions may not be eligible for review Some caregiver act decisions may be and you even gave us some examples of the ones that don't involve I think you the words you used were nothing clinical.

[00:46:19] Speaker 03:
No judgmental treatment kind of thing So you you've struck a balance which is a very appealing balance to me

[00:46:27] Speaker 03:
I don't think that's what the Veterans Court held them.

[00:46:30] Speaker 03:
So I don't know that we can necessarily affirm their decision, but not their legal interpretation.

[00:46:38] Speaker 03:
Is that fair?

[00:46:38] Speaker 03:
Do you think they went further than what you argued to me today in articulating what should be subject to board review coming out of the caregiver program?

[00:46:48] Speaker 00:
I think the question, to be fair to the Veterans Court, the question before the Veterans Court was narrow.

[00:46:53] Speaker 03:
Well, be fair to the Veterans Court.

[00:46:54] Speaker 03:
They probably didn't have this level of advocacy either.

[00:46:57] Speaker 03:
No, seriously.

[00:46:59] Speaker 03:
And just like if it goes from here to the Supreme Court, you'll get even better.

[00:47:02] Speaker 00:
It is my father who argued before the Veterans Court that he did an excellent job there, but I take you on this point.

[00:47:10] Speaker 00:
But the question before the Veterans Court was, I think,

[00:47:14] Speaker 00:
quite narrow.

[00:47:15] Speaker 00:
The question was, does Section C1's reference or use of the term medical determination withdraw board review and judicial review?

[00:47:24] Speaker 00:
And on that question, I submit the Veterans Court was correct.

[00:47:27] Speaker 00:
I mean, this section does not withdraw all

[00:47:30] Speaker 00:
all board and all judicial review of all decisions under the Caregiver Act.

[00:47:34] Speaker 00:
I mean, there is no way to read the statute of the regulation to accomplish what the Veterans Administration argues.

[00:47:40] Speaker 00:
Now, the Veterans Court did not then kind of like take the next step and said, okay, you know, let us see if we can construe the statute.

[00:47:47] Speaker 00:
and give meaning to the statutory award, see if it can be read consistently, consistent with that regulation.

[00:47:54] Speaker 00:
Now, this court can do that because these are obviously legal questions.

[00:47:58] Speaker 00:
I think the secretary actually argues that the veterans court couldn't, should have done that.

[00:48:04] Speaker 00:
I mean, this court can do it because it has the expertise in construing statutes, construing regulations, and seeing that both can be reconciled.

[00:48:11] Speaker 00:
But in fairness to the Veterans Court, yes, the Veterans Court did not actually look and say, OK, how do we construe precise language of section C1?

[00:48:20] Speaker 00:
Is there a way in which our construction can be consistent with the regulation?

[00:48:25] Speaker 00:
Or does the regulation have to be struck down because it's inconsistently caregiver act?

[00:48:29] Speaker 00:
That the Veterans Court didn't do.

[00:48:30] Speaker 00:
But its decision on whether or not board review and judicial review was precluded altogether by this somewhat cryptic reference to medical determination, I mean, on that decision, the Veterans Court's correct.

[00:48:42] Speaker 03:
I'd like to ask that you and the government, if possible, coordinate some sort of either joint or simultaneous filing.

[00:48:51] Speaker 03:
Why don't we say no longer than a week, limited to, say, 10 pages to each.

[00:48:58] Speaker 03:
But where you articulate the current, I'm looking for the current state of the statistics regarding this is not an opportunity for additional argument.

[00:49:08] Speaker 03:
You can't follow up with, oh, an inaugural argument.

[00:49:10] Speaker 03:
I said this, let me clarify.

[00:49:12] Speaker 03:
just the statistics, how many, you know, how many notices of appeal, how many board decisions, how many resolutions, how many resulted in favorable outcome for whatever, but you know, statistics.

[00:49:24] Speaker 03:
Can I ask you all to hopefully coordinate a single filing and if you're, I will judge both of you if you're not capable of that, but I hope you are.

[00:49:32] Speaker 03:
If you're not capable of a single joint filing, then you can each file simultaneously within one week.

[00:49:37] Speaker 00:
You wonder that is up to the fine.

[00:49:39] Speaker 00:
We would be happy to coordinate with the secretary.

[00:49:41] Speaker 00:
Obviously, they have the data, but they have been actually providing statistics over the court, providing both statistics and the notices to us during this process.

[00:49:50] Speaker 03:
And since I'm not looking for argument, I'm looking for pure facts.

[00:49:53] Speaker 03:
I feel like you've got to be able to come together on that.

[00:49:55] Speaker 00:
Absolutely.

[00:49:56] Speaker 00:
We would be happy to work together with the government to provide that for the court.

[00:50:02] Speaker 01:
Well, yeah, she has replied.

[00:50:04] Speaker 03:
Well, no, I know, but I meant for him.

[00:50:06] Speaker 00:
Unless there are questions, I mean, about Chevron deference of Section 502, but we're happy to rest on our briefs or to set on those points.

[00:50:13] Speaker 03:
Very good.

[00:50:14] Speaker 03:
Let's give Ms.

[00:50:16] Speaker 03:
Bae her rebuttal time, please.

[00:50:18] Speaker 00:
Thank you, Your Honor.

[00:50:22] Speaker 05:
Thank you, Your Honor.

[00:50:23] Speaker 05:
Just a few points of clarification.

[00:50:26] Speaker 01:
What did you think of the suggestion?

[00:50:28] Speaker 05:
Sorry?

[00:50:29] Speaker 01:
What did you think of the suggestion about interpreting the statute?

[00:50:33] Speaker 05:
I disagree with it.

[00:50:35] Speaker 05:
I would first note that this is a new argument that I don't believe was mentioned in either of their briefs or by the veterans.

[00:50:40] Speaker 03:
This is a question of law, and we have to determine what the statute means.

[00:50:44] Speaker 03:
I could go with something different than what either of you are.

[00:50:46] Speaker 05:
Sure.

[00:50:47] Speaker 02:
And I think that... Especially where I just want to note that you have emphasized how important it is that the word medical determination has been given some meaning.

[00:50:57] Speaker 02:
And there is some meaning.

[00:51:00] Speaker 02:
So what do you think of this interpretation?

[00:51:02] Speaker 05:
I don't think that this, I don't agree with Mr. Timofeo's interpretation.

[00:51:09] Speaker 05:
It does say a decision by the secretary under this section affecting the furnishing of assistance or support.

[00:51:14] Speaker 05:
But we do believe that that encapsulates basically all assistance or support decisions under the caregiver act.

[00:51:21] Speaker 05:
These are already veterans who are receiving family caregiver support.

[00:51:26] Speaker 05:
And so everything that affects that, which is assistance for family caregivers of the eligible veterans, would fall under affecting the furnishing of assistance or support.

[00:51:37] Speaker 03:
Is this a completely new concept to you?

[00:51:40] Speaker 03:
Because if it is, maybe take a breath.

[00:51:42] Speaker 03:
It seems like a really reasonable position.

[00:51:46] Speaker 03:
And how does it not give the VA everything it wants in that the board can still decide what amounts to

[00:51:53] Speaker 03:
clinical or judgmental treatment and therefore isn't subject to review, which I think 104A says the board's entitled to decide.

[00:52:04] Speaker 03:
clinical judgment decisions in that category, but just sort of giant eligibility decisions of like the couple of examples he gave.

[00:52:12] Speaker 03:
And you're already saying those things won't be unsettled if people have gotten it.

[00:52:17] Speaker 03:
But why isn't his position?

[00:52:18] Speaker 03:
And I know you haven't had a chance to think about it.

[00:52:20] Speaker 03:
And that's a totally fair decision.

[00:52:22] Speaker 03:
But why is your answer, no, we still disagree with it?

[00:52:26] Speaker 03:
So good.

[00:52:27] Speaker 05:
Well, we think, I mean, yes, this is a new argument, so I'm sort of considering it off the cuff.

[00:52:33] Speaker 05:
But we have obviously read through the statute, and we believe that any decisions regarding eligibility, amounts of stipends, that sort of thing, are decisions affecting the furnishing of assistance or support, and therefore would all be considered medical determinations.

[00:52:47] Speaker 05:
We also believe that

[00:52:49] Speaker 05:
consistent with the Supreme Court's decision in George, that medical determination is a term of art within the VAHA.

[00:52:55] Speaker 05:
Let me give you two choices.

[00:52:57] Speaker 03:
Choice number one, the VA is affirmed.

[00:53:01] Speaker 03:
And the words medical determination are some colloquial thing.

[00:53:05] Speaker 03:
And we think your regulation does not put the domiciliary care into the nonreviewable category

[00:53:13] Speaker 03:
because it expressly exempts it from medical determination.

[00:53:16] Speaker 03:
So it seems wackadoo to think that Congress intended to overcome the strong presumption of judicial review by reference to a regulation which on its face would have these kinds of decisions fall within board review.

[00:53:29] Speaker 03:
So that's position number one.

[00:53:31] Speaker 03:
And position number two, it's the really reasonable interpretation of all things that he just advocated.

[00:53:37] Speaker 03:
Which one do you want?

[00:53:38] Speaker 05:
Um, well, I mean, if it had to come between those two, obviously, we would prefer the second to the first.

[00:53:45] Speaker 05:
But I actually do have a point.

[00:53:46] Speaker 03:
Doesn't that sound like really good, too, for everybody?

[00:53:48] Speaker 03:
Like, what's the downside?

[00:53:49] Speaker 03:
Well, I mean, I think the downside is it's simply not what Congress intended, and it's simply not how this... Okay, but I don't... You've never made what I find very interesting the administrative nightmare argument.

[00:54:01] Speaker 03:
Why?

[00:54:02] Speaker 03:
Why haven't you made the argument to us that Congress didn't intend this?

[00:54:08] Speaker 03:
because it would overwhelm the board with all of these potential new cases?

[00:54:13] Speaker 05:
I believe, and I don't have the page of the briefing exactly handy, but I did believe we did make an administrative argument that it would overwhelm the board if the VA's, if the Veterans Court's decision were to remain in place.

[00:54:25] Speaker 03:
What is the nature of, how many appeals does the board get a year?

[00:54:35] Speaker 03:
I'm not asking you, by the way.

[00:54:37] Speaker 03:
I'm not now giving you license in that filing to make arguments about how it's going to overwhelm.

[00:54:43] Speaker 03:
But you can include numbers if you would like.

[00:54:45] Speaker 03:
And of course, he has the right to weigh in, too.

[00:54:47] Speaker 03:
Here are the number of board appeals normally.

[00:54:49] Speaker 03:
Here are the number of appeals this would be, that kind of thing, to add.

[00:54:53] Speaker 03:
Because I do want to understand that.

[00:54:55] Speaker 03:
I want to understand the impact of the decision we make.

[00:54:57] Speaker 03:
But recognize that impact of the decision you make doesn't mean that everybody who gets a notice of appeal necessarily is going to be able to make a board appeal or be successful.

[00:55:08] Speaker 03:
Because these articulation gives the VA and the board the authority to decide what's in its jurisdiction and not.

[00:55:14] Speaker 03:
And all of those critical judgments, you guys would decide are not.

[00:55:17] Speaker 03:
And then they go away and they stop getting filed.

[00:55:19] Speaker 03:
As soon as you set the landscape clearly, then you're not going to have an overwhelming number of decisions.

[00:55:26] Speaker 05:
Yes, again, at least off the cuff, we don't agree, but we understand what you're coming from, and we do think it's better than invalidating the regulation completely.

[00:55:37] Speaker 03:
I do want to point out- Well, I don't think that was ever on the table.

[00:55:39] Speaker 03:
How is it invalidating the regulation on the table?

[00:55:42] Speaker 03:
There's no 502 challenge here.

[00:55:43] Speaker 05:
Oh, no, I don't think it's on the table.

[00:55:45] Speaker 05:
But I think Your Honors asked me, or Judge Dyke had mentioned that if, I think he had mentioned to the both deaths if they thought that they won the case, whether the regulation would fall.

[00:55:54] Speaker 05:
So I was just raising it as a matter of that.

[00:55:56] Speaker 05:
We don't think the validity of the regulation is on the table.

[00:55:58] Speaker 05:
And we don't think that the regulation is invalid at all.

[00:56:01] Speaker 05:
The last thing I wanted to do is just touch on the domiciliary care point.

[00:56:06] Speaker 05:
It was clarified to me by VA when Mr. Timofaya was speaking that the domiciliary, and I don't unfortunately have all the citations with me, but that the domiciliary care in the 20.104 regulation is actually not

[00:56:22] Speaker 05:
talking about family caregivers, that would be the issue in the PCAFC, but rather it's talking about domiciliary care that would be provided in the veteran's home by VA or by a separate community care provider.

[00:56:36] Speaker 02:
But it is home care?

[00:56:38] Speaker 05:
It is home care, but it is not home care from a family caregiver.

[00:56:41] Speaker 02:
And the reason why, what is the basis for thinking it's home care only, exclusively, without a family member?

[00:56:49] Speaker 05:
Again, I don't, I unfortunately don't.

[00:56:51] Speaker 02:
Like is it defined somewhere?

[00:56:53] Speaker 05:
To me, but I do know that there is a statute that... I mean, I didn't see it defined in the regulations, for example.

[00:57:00] Speaker 05:
I didn't, yeah, I mean, I'm just getting this information now, so unfortunately I don't have that at my fingertips.

[00:57:05] Speaker 05:
I do know that there is a statute that specifically

[00:57:08] Speaker 05:
deals with eligibility for domiciliary care, which would be eligible for board review under 20.104.

[00:57:16] Speaker 05:
And if it's of any interest, the statute is 38 U.S.C.

[00:57:20] Speaker 05:
1710.

[00:57:22] Speaker 05:
And that does specifically deal with domiciliary care and eligibility for that program.

[00:57:26] Speaker 05:
And so we would submit that domiciliary care, as referred to in the regulation, would be referring, presumably, to that statute and not to anything to do with the caregiver program, which again, just deals with assistance for family caregivers who are already taking care of those veterans and is just providing.

[00:57:43] Speaker 03:
This feels like a really important issue as well.

[00:57:46] Speaker 03:
And I think I'm the one who threw that call of you out of left field.

[00:57:50] Speaker 03:
I don't think there was domiciliary care up here to make that straight.

[00:57:53] Speaker 03:
So now I'm going to ask you both

[00:57:58] Speaker 03:
coordinate on the numbers, because you guys shouldn't have different numbers, right?

[00:58:02] Speaker 03:
That part should be right.

[00:58:03] Speaker 03:
You shouldn't have different numbers between the two of you on how many more decisions or whatever.

[00:58:08] Speaker 03:
But you can each file separately, 10 pages, do in seven days.

[00:58:12] Speaker 03:
And I'd like to ask you to also tell me what your interpretation of these words domiciliary care are in 104b, and where it comes from, and why you think it does or doesn't include

[00:58:30] Speaker 05:
OK, and just to clarify, that would be a joint filing just with the statistics?

[00:58:37] Speaker 03:
OK, yes.

[00:58:38] Speaker 03:
I mean, I would love it to be a joint filing on the statistics, because you shouldn't have different numbers.

[00:58:43] Speaker 03:
And I don't want to see different numbers.

[00:58:45] Speaker 03:
Yes.

[00:58:46] Speaker 03:
And then how about this?

[00:58:48] Speaker 03:
Just give me five pages, double-spaced, each, on domiciliary care.

[00:58:52] Speaker 03:
Okay, yes, we can do that.

[00:58:53] Speaker 03:
Seven days from today.

[00:58:54] Speaker 03:
We will provide... Seven days from today.

[00:58:57] Speaker 03:
Five PM.

[00:58:58] Speaker 03:
Five PM.

[00:58:59] Speaker 03:
Close the business.

[00:59:00] Speaker 03:
Seven days from today.

[00:59:01] Speaker 03:
Nobody's working late around the Christmas season.

[00:59:04] Speaker 05:
Alright, if the court has no other questions, we would just... You would love to leave?

[00:59:08] Speaker 05:
No, no, I'm happy to keep arguing.

[00:59:10] Speaker 05:
I still don't think that they fulfilled the lack of adequate means of relief.

[00:59:14] Speaker 05:
But with that, I will respectfully request that the court vacate it.

[00:59:17] Speaker 03:
You all did a fabulous job.

[00:59:19] Speaker 03:
Thank you so much.

[00:59:19] Speaker 03:
This is a really challenging case, and you both gave excellent argument.