[00:00:00] Speaker 01: first case for the day is 22-1089, Buffkin v. McDonough. [00:00:06] Speaker 01: Mr. Carpenter, please proceed. [00:00:08] Speaker 03: May it please the court? [00:00:09] Speaker 03: Count Carpenter appearing on behalf of Mr. Buffkin. [00:00:12] Speaker 03: As a preliminary matter, I'd like to advise the panel that the supplemental briefing that was ordered in the Thornton case has been completed and is available to this panel if the panel deems that appropriate. [00:00:23] Speaker 01: Is this case [00:00:25] Speaker 01: Identical to and likely therefore resolved by the Thornton case. [00:00:29] Speaker 03: I believe it is. [00:00:31] Speaker 04: What about Rome? [00:00:32] Speaker 04: Rome raises, if not the same, a similar issue. [00:00:34] Speaker 04: I know it's not you. [00:00:35] Speaker 04: Oh, Rome, yes. [00:00:36] Speaker 04: But it's your, it's your, I don't know if it's your partner or your colleague, it's Mr. DeHawkbis. [00:00:40] Speaker 04: Is it the same issue too? [00:00:42] Speaker 03: No, I believe the issue is slightly different in Rome. [00:00:46] Speaker 04: Well, there's two issues in Rome, right? [00:00:47] Speaker 03: Yes. [00:00:47] Speaker 04: But the second one seems to be very similar to this. [00:00:51] Speaker 04: The other one is about tallying up [00:00:53] Speaker 04: positive and negative, but we've already decided that in Maddox. [00:00:58] Speaker 04: And so I just want to make clear, to the extent the second issue in Rome, if it's not the same, it's almost identical to this one, right? [00:01:08] Speaker 03: If you're only looking at the second issue, that would be true, Your Honor, absolutely. [00:01:16] Speaker 03: This matter deals with a question of statutory interpretation, specifically the provisions of 38 USC 7261B1, specifically as they regard the role and responsibility of the Veterans Court to take to account of the Secretary's application of the provisions of 5107B. [00:01:39] Speaker 03: We believe that the answer is clearly found within the language used by Congress in 7261B1. [00:01:46] Speaker 03: The first phrase of that statute as amended in 2002 includes the same language that was in the original version. [00:01:56] Speaker 03: That phrase requires that this process take place when the Veterans Court is making its determinations under 7261A. [00:02:09] Speaker 04: Why doesn't the fact that it incorporates the first phrase and making the determinations under subsection A also incorporate the standard of review in subsection A? [00:02:21] Speaker 03: Because the Congress has asked the Veterans Court to take on additional review responsibilities separate from those that are outlined in 7261A. [00:02:32] Speaker 03: In 7261A, it is a review of the actions of the secretary and the board as it relates to the matter that was appealed from the board to the Veterans Court. [00:02:47] Speaker 03: And it is predicated upon issues that were presented. [00:02:51] Speaker 03: In this case, we're dealing with a separate statutory provision in which Congress purposefully amended the scope of review, and as this court indicated in Deloge, it altered that standard of review. [00:03:05] Speaker 04: Why wouldn't the logic of that argument also extend to the harmless error, the prejudicial error decision in B2 then? [00:03:14] Speaker 03: I believe it does, but I believe that they are [00:03:18] Speaker 03: complementary additional tasks. [00:03:22] Speaker 04: But if that's true, then it would require the Veterans Court to look at the entire record and determine if there's any error, whether raised by the veteran or not, and determine what was prejudicial. [00:03:34] Speaker 04: That is correct. [00:03:35] Speaker 04: We already held that you have to raise arguments of prejudicial error to the Veterans Court or they're forfeited. [00:03:43] Speaker 03: If you have, Your Honor, I'm sorry. [00:03:45] Speaker 03: I don't recall that this court has addressed that issue in that manner. [00:03:51] Speaker 03: The question of presentation. [00:03:52] Speaker 04: Well, I guess what I'm asking, even if we hadn't, I mean, this provision you're talking about, it's at least where we'd be requiring the Veterans Court to look and find [00:04:06] Speaker 04: look in specifically at a specific piece of the evidence and see whether the Veterans Court really did it properly. [00:04:12] Speaker 04: You wanted to do de novo. [00:04:14] Speaker 04: The Secretary wants the same standards as Ada applied. [00:04:19] Speaker 04: But if we're following the logic, and I think we have to because you know one and two are in the same section, [00:04:25] Speaker 04: Wouldn't it be an extraordinary thing for Congress to order an appellate court to review the entire record of administrative proceedings and determine if there was any error of legal evidentiary or the like, and then determine whether it was harmless or not, even if that error hadn't been presented to them? [00:04:47] Speaker 03: Well, if your question is limited to just B2, I think that could be interpreted as a significant stretch. [00:04:56] Speaker 03: However, I would point out to the court that when Congress amended this provision, it added a second phrase, a phrase that comes directly from 7252B, the Veterans Court's jurisdictional statute. [00:05:13] Speaker 03: And that language explicitly provides that the review shall be made based upon the record of proceedings before both the secretary and the board. [00:05:24] Speaker 03: I don't see any other way to interpret that other than that's the entire record of proceedings. [00:05:29] Speaker 04: Well, it may be made based upon the entire record, but it still doesn't necessarily suggest that the Veterans Court has a sui sponte obligation to do a de novo review. [00:05:39] Speaker 04: And if Congress intended an appellate court to undertake such a de novo function, you would have thought that they would have made it much more explicit than this, the way it's done here. [00:05:53] Speaker 03: I don't disagree with that. [00:05:56] Speaker 04: I mean, let me just, and I'm getting hung up on B2, but didn't all B2 is prior to the inclusion of B2. [00:06:03] Speaker 04: I don't know, was B2 in the original? [00:06:06] Speaker 04: It just, it mimics the rule of prejudicial error. [00:06:09] Speaker 04: that's applicable to every other federal appellate court in the country. [00:06:13] Speaker 04: We all have to apply the rule of prejudicial error. [00:06:17] Speaker 04: And we are obligated to undertake a de novo review of the record. [00:06:22] Speaker 04: So why do you think Congress intended for the Veterans Court to do that? [00:06:26] Speaker 03: because of the very manner in which this was raised to Congress in 2002, because of the concerns that were expressed that the Veterans Court was not reversing decisions that should have been reversed. [00:06:40] Speaker 03: Now, frankly, Congress went further in amending to add B1 [00:06:46] Speaker 03: But in doing so, they explicitly provided that that review would be precisely what you described, based upon the entire argument. [00:06:55] Speaker 01: My concern is that C actually says, in no event. [00:07:00] Speaker 01: And so I think that they're kind of summing up, in no event shall findings of fact made by the secretary or board be subject to trial de novo by the Veterans Court. [00:07:08] Speaker 01: So I feel as though Congress [00:07:11] Speaker 01: Maybe the language in B could have been not as clear as we would have liked if it was in isolation. [00:07:19] Speaker 01: But when you add C in, it seems like Congress is coming over the top to make sure that the CAVC isn't conducting de novo fact finding. [00:07:28] Speaker 03: And I agree with you on the fact finding. [00:07:30] Speaker 03: I would submit, however, Your Honor, that taking into account of the Secretary's application does not require fact finding. [00:07:38] Speaker 03: It does require an assessment [00:07:41] Speaker 03: of whether or not this provision was correctly applied. [00:07:46] Speaker 02: In other words. [00:07:46] Speaker 02: What about whether it was just applied? [00:07:48] Speaker 02: Could it be? [00:07:49] Speaker 02: I mean, I agree with you. [00:07:50] Speaker 02: It does say before the Secretary and the Board of Veterans' Appeals. [00:07:54] Speaker 02: But what makes it that they have to make sure? [00:07:56] Speaker 02: Why do you think they have to make sure it was correctly applied instead of just applied? [00:08:00] Speaker 02: And then the normal rules of evidence apply or review apply, which here would be whether there is an erroneous fact [00:08:08] Speaker 03: And I think the answer to that lies in the reason that judicial review was created. [00:08:13] Speaker 03: Congress made clear that they were creating judicial review to oversee the decision-making of the secretary, to ensure that the statutory process that they created, which is fundamentally different than any other process, and the underpinning, the anchor, the foundation, is the benefit of the doubt. [00:08:38] Speaker 01: OK, well, whether or not the Secretary properly applied the Benefit of the Doubt Rule in a given case, isn't that effect-finding? [00:08:45] Speaker 03: No. [00:08:46] Speaker 01: No? [00:08:46] Speaker 03: No, I do not believe it is, Your Honor. [00:08:48] Speaker 03: As the way in which this statute is written, Congress took the broad brush of the phrase, to take due account of. [00:08:59] Speaker 03: The same phrase that they used with- No, forget the take due account of. [00:09:03] Speaker 01: Under 5107, [00:09:05] Speaker 01: B, which is the benefit of the doubt, the secretary shall consider all information lay in medical evidence of record. [00:09:11] Speaker 01: When there's an approximate balance, the secretary should give the benefit of the doubt to the claimant. [00:09:15] Speaker 01: You don't think that that is a fact finding? [00:09:19] Speaker 03: No, Your Honor. [00:09:20] Speaker 03: I do not. [00:09:21] Speaker 03: Particularly when you examine it. [00:09:22] Speaker 01: Do you have a case of errors that supports your view that whether or not the secretary applied the benefit of the doubt correctly is a question of law? [00:09:30] Speaker 03: No, Your Honor. [00:09:32] Speaker 03: But that is part of what this court [00:09:35] Speaker 03: is going to be required to address in interpreting this statute. [00:09:39] Speaker 03: This statute either does what Mr. Buffkin and Mr. Thornton are urging this court to say that it does, or it is simply redundant. [00:09:54] Speaker 04: So let me ask you this. [00:09:56] Speaker 04: You seem to, I think, just suggest that [00:10:00] Speaker 04: Underlying fact findings the Veterans Court can't make de novo fact-finding correct so they can only review the board's fact findings for clear error Is what you're saying? [00:10:09] Speaker 04: the gist of what you're saying is [00:10:13] Speaker 04: once the board has made these fact findings and tallied up the evidence and said we find this credible, we find this not credible, this is supportive, this isn't supportive, the Veterans Court can only touch that for clear error. [00:10:24] Speaker 04: Correct. [00:10:25] Speaker 04: But they can look at whether, you know, that the board properly considered all that to apply to benefit of the doubt. [00:10:33] Speaker 03: That would be correct, Your Honor, and I think it's more that [00:10:37] Speaker 03: I would put it more strongly. [00:10:38] Speaker 03: It's not that they can take a look. [00:10:40] Speaker 03: They must take a look. [00:10:42] Speaker 03: Right. [00:10:42] Speaker 04: But in this case, didn't you argue that they didn't apply the benefit of the doubt properly? [00:10:47] Speaker 04: And the Veterans Court said no. [00:10:50] Speaker 03: And they did so under their determination under A. But as I read B. No, no, no. [00:10:55] Speaker 04: But the determination under A, you agree that they can't get to the factual findings. [00:11:00] Speaker 03: That's correct. [00:11:00] Speaker 04: Or anything but clear air. [00:11:01] Speaker 04: What beyond that, they're just looking to see whether the board properly applied the law of the benefit of the doubt, which we know what that is now, to the facts of the case. [00:11:13] Speaker 03: Well, except that, Your Honor, this court in Deloge said that the intent of Congress was to require a searching review. [00:11:21] Speaker 03: And that searching review. [00:11:22] Speaker 04: No, no, I get this. [00:11:23] Speaker 04: This is what I'm trying to get at is in this case, it was raised. [00:11:27] Speaker 04: And I think what you're trying to get at is even if it's not raised. [00:11:30] Speaker 04: Yes. [00:11:30] Speaker 04: But this case, it was raised. [00:11:32] Speaker 03: Yes. [00:11:32] Speaker 04: So we don't need to address that question. [00:11:35] Speaker 04: The only question that before us then is whether the Veterans Court properly signed off on the board's application of the benefit of the doubtful here. [00:11:43] Speaker 04: And that's an application of law, the fact that we can't touch. [00:11:46] Speaker 04: Right. [00:11:47] Speaker 04: I said that. [00:11:51] Speaker 03: if you are looking at it through the prism of the board's factual determinations. [00:11:56] Speaker 03: I would suggest that when Congress used the phrase to take to account of, it was asking for a much more searching review of the record to examine, as you suggested earlier, the entire record to look for errors that were not presented, to ensure that the benefit of the doubt, when applicable, is applied. [00:12:18] Speaker 03: And when it is not applied, [00:12:20] Speaker 03: that Congress gave the authority to the Veterans Court in 2002 to reverse decisions. [00:12:27] Speaker 03: I say I'm way into my rebuttal time, and I'd like to reserve the ballot. [00:12:31] Speaker 00: No problem. [00:12:31] Speaker 00: Ms. [00:12:31] Speaker 00: Kramer? [00:12:33] Speaker 00: May it please the court? [00:12:34] Speaker 00: I'd like to circle around to some topics that have already been discussed. [00:12:39] Speaker 00: We entirely agree that B is cabin by A, that the language is very clear. [00:12:47] Speaker 00: that it's in the context of the review under section A, and that the same standard of review applies, that there is no. [00:12:54] Speaker 04: Here's my issue with this, is B2, or sorry, B1, under your view, becomes pretty duplicative of everything in A, doesn't it? [00:13:09] Speaker 04: A already requires the Veterans Court to review the board's factual determinations, its legal analysis, and the like. [00:13:18] Speaker 04: the Veterans Court to determine whether the board properly applied the benefit of the doubt rule. [00:13:23] Speaker 04: So if that's the case, why do we have it repeated again in B1? [00:13:27] Speaker 00: So I think what B1 does is very similar to taking into account a prejudicial error in that it gives the Veterans Court the ability to reverse if [00:13:42] Speaker 00: It's clearly erroneous, and there's no other way to read the factual record regarding the benefit of the doubt. [00:13:48] Speaker 00: So I think that reversal as opposed to just merely remanding. [00:13:52] Speaker 00: And I think if you want to take a look at the Mariano case. [00:13:55] Speaker 04: So in your view, if B1 didn't exist, if they found that the board had legally are implying the benefit of the doubt rule, the best they could do is vacate and remand. [00:14:04] Speaker 04: But under this, take due account if they find the board's clearly erred in finding facts here. [00:14:13] Speaker 04: And once you throw out the erroneous facts, the benefit of the doubt clearly weighs in favor of the veteran. [00:14:19] Speaker 04: The Veterans Court can just enter an order saying grant the veteran benefits. [00:14:24] Speaker 00: Yes, I think that it could reverse it in that matter exactly. [00:14:27] Speaker 02: One question, which is, what about a more searching review, even of arguments that weren't presented well? [00:14:39] Speaker 02: I mean, it does say, shall we do the record of the secretary and the proceedings before the secretary and the board, and shall take into account of the secretary's application. [00:14:51] Speaker 02: So does that mean we go back? [00:14:54] Speaker 02: that they should, excuse me, the Veterans Court of Appeals, should go back and look at not just what happened at the board, but also at the secretary level. [00:15:04] Speaker 00: I think they can consult the full agency record, but I don't think they can make new fact findings. [00:15:09] Speaker 02: I think if you look at- No new fact findings, but they could look to see whether the benefit of the doubt rule was applied? [00:15:15] Speaker 00: I think they could look to see whether it was applied. [00:15:17] Speaker 02: And whether it was applied correctly? [00:15:20] Speaker 00: I think whether it was applied correctly gets into, as was discussed earlier, a factual issue of weighing of the evidence. [00:15:32] Speaker 02: And so the Veterans Court couldn't review that? [00:15:37] Speaker 02: They could review it, couldn't they? [00:15:40] Speaker 00: We need to actually answer her question. [00:15:41] Speaker 00: Yes. [00:15:42] Speaker 00: Sorry. [00:15:43] Speaker 00: I may be misunderstanding your question, and I apologize if that's the case. [00:15:50] Speaker 00: asking the Veterans Court to do? [00:15:51] Speaker 02: To review the benefit of the doubt determination by the secretary and the board for under clearing the standard, let's say, if that's where you're confused. [00:16:02] Speaker 00: I'm afraid I might still be confused. [00:16:06] Speaker 04: I don't want to speak for you, but I think Judge Stone might be asking this, whether that means they can reach back and review the decisions of the regional office rather than the board acting for the secretary. [00:16:17] Speaker 04: Because the decision of the board is the decision of the secretary too, right? [00:16:21] Speaker 00: Right. [00:16:21] Speaker 00: So I think, sorry, I was misunderstanding your question. [00:16:24] Speaker 02: The fact that the regulation first, the secretary as being separate from the board, suggested to me that maybe we would go back further and look at the RO's decision, not me, but the veterans. [00:16:34] Speaker 00: I think it's referring to the decision of the board in that the board acts for the secretary and also that the provision has to do with the review of board decisions, the scope of review of board decisions, not the scope of review of RO decisions. [00:16:51] Speaker 02: Isn't it redundant? [00:16:53] Speaker 00: Why would it say the board and the secretary? [00:16:58] Speaker 00: to look at some of the factual aspects that were before the secretary that perhaps the board didn't explicitly mention its analysis but might be relevant to the benefit of the doubt review. [00:17:11] Speaker 04: So if the RO had made factual findings that the board didn't explicitly call out, the Veterans Court could look at them to determine whether there was clear error and therefore the benefit of the doubt rule had been not properly applied. [00:17:27] Speaker 00: Right. [00:17:28] Speaker 04: Really? [00:17:33] Speaker 04: I'm not sure you want to concede that. [00:17:36] Speaker 00: Yeah. [00:17:36] Speaker 00: I think I might be misunderstanding. [00:17:38] Speaker 00: I apologize. [00:17:40] Speaker 00: I think I've gotten a little turned around. [00:17:42] Speaker 04: Well, I think, yeah. [00:17:47] Speaker 04: I mean, I don't want to make your argument for you. [00:17:50] Speaker 04: You should be doing it. [00:17:52] Speaker 04: It seems to me that the Veterans Court reviews and its jurisdiction has reviewed the decisions of the board, which is the decision of the secretary. [00:18:01] Speaker 00: Right. [00:18:01] Speaker 00: And I thought I was saying that I apologize if I got turned around. [00:18:05] Speaker 00: It reviews the decision of the board. [00:18:07] Speaker 00: That's what the jurisdictional statute says. [00:18:12] Speaker 00: That's what the jurisdictional statute that section 7261. [00:18:15] Speaker 04: And if it finds that the board had improperly failed to consider factual determinations made by an adjudicator at the regional office, would it reach out and look at those conclusions and making this determination under B? [00:18:30] Speaker 04: Or would it simply vacate and remand because the board hadn't properly considered the record and given a proper reasons and basis for making its determination under B? [00:18:42] Speaker 00: I think it was vacate and remand. [00:18:43] Speaker 01: But I thought you said that the whole point of B was to allow reversal by the CABC and not to require vacate and remand. [00:18:50] Speaker 00: So it depends on the situation. [00:18:52] Speaker 00: I think the Mariano case really describes both situations very well. [00:18:58] Speaker 00: So in that case, this was a Veterans Court opinion from a few years back. [00:19:07] Speaker 00: There were two issues where the benefit of the doubt [00:19:11] Speaker 00: misapplied. [00:19:12] Speaker 00: One, where there wasn't enough evidence in the record for the Veterans Court to make a determination either way, the evidence was entirely ambiguous. [00:19:22] Speaker 00: And so they vacated and remanded in that situation. [00:19:25] Speaker 00: And the other, regarding a different issue in the case, it was clear based on the record that all of the evidence was either in favor of the veteran or ambiguous. [00:19:36] Speaker 00: And so in that case, they simply reversed. [00:19:39] Speaker 00: So I think that's a very good example of what this provision does is it allows that reversal when the evidence, when the benefit of the doubt was clearly erroneously applied and the evidence very clearly weighs in favor of the veteran and that there's no other way to read it. [00:20:00] Speaker 02: What about the fact that 7261C says, in no eventual findings of fact made by the Secretary or the Board of Veterans Appeals be subject to trial de novo by the court? [00:20:10] Speaker 02: Doesn't that undermine the argument that the Secretary in Section D1 is referring only to the board? [00:20:21] Speaker 00: I don't think so. [00:20:22] Speaker 00: I think it means exactly what it says is that there's no de novo review. [00:20:26] Speaker 02: But it talks about, [00:20:28] Speaker 02: findings of fact being reviewed, findings of fact by the Secretary or the Board of Veterans' Appeals. [00:20:35] Speaker 02: I mean, I'm just, I mean, it's interesting Congress's choice of wording here in this statute. [00:20:41] Speaker 00: I agree their choice of wording is interesting. [00:20:44] Speaker 00: But I do think we're looking at a review of the board decision here. [00:20:49] Speaker 00: And that that's what the scope of review section deals with, is the scope of review of the board decision. [00:20:58] Speaker 00: So what exactly do you think the words take do account of mean? [00:21:01] Speaker 00: I think sort of along the lines of take proper consideration, make sure you pay attention to it. [00:21:11] Speaker 01: You think Congress wrote a statutory section in order to say make sure you pay attention to something that's pretty much already covered by A? [00:21:18] Speaker 00: I think so. [00:21:19] Speaker 00: I think Mr. Carpenter alluded that there had been concerns around the time that this was enacted that there wasn't enough attention being paid to the benefit of the doubt doctrine. [00:21:30] Speaker 00: And so I think this was a way of calling attention to the importance of that. [00:21:35] Speaker 01: But the benefit of the doubt doctrine would be one of the many provisions that the Veterans Court could review under A, right? [00:21:44] Speaker 01: Right. [00:21:44] Speaker 01: So you think even though it falls under A, they wanted to make sure nobody forgot about it, and so they articulated it separately in B? [00:21:51] Speaker 00: I think that and also the ability to reverse, as discussed earlier and as exemplified by the Mariano case. [00:21:58] Speaker 01: Just out of curiosity, where do you think this ability to reverse as opposed to vacate comes from? [00:22:03] Speaker 01: What is the precise language in B that leads you to the conclusion the CAVC has the authority to reverse as opposed to vacate? [00:22:10] Speaker 00: I think it comes from the parallel construction [00:22:14] Speaker 00: take to account in section B1 and section B2. [00:22:17] Speaker 00: And this court has interpreted in the context of B2 that the Veterans Court could reverse. [00:22:25] Speaker 00: And so I think similarly in B1, the Veterans Court could reverse. [00:22:31] Speaker 04: Do you mean for prejudicial error, the Veterans Court can [00:22:35] Speaker 04: a firm, even if it finds an error, despite that error, it doesn't have to remand to the board if the error is prejudicial. [00:22:43] Speaker 04: That's a provision that benefits the secretary. [00:22:45] Speaker 04: A due account provision goes the other way and allows a reversal outright rather than remand for the veteran instead of a vacate. [00:22:59] Speaker 00: Why? [00:23:01] Speaker 00: Well, I think there's a commonality that they're both judicial and administrative efficiency provisions. [00:23:09] Speaker 00: I don't understand. [00:23:10] Speaker 01: You said take due account. [00:23:11] Speaker 01: That just means make sure you properly reviewed it. [00:23:14] Speaker 01: If the CAVC concludes the secretary or the board didn't properly review benefit of the doubt rule, why do the words take due account suddenly magically imbue the CAVC, which does not have the power to reverse with the power to nonetheless reverse? [00:23:30] Speaker 01: You said the words, take due account of, just mean look at it properly. [00:23:33] Speaker 01: Make sure it was looked at properly. [00:23:36] Speaker 01: Why is that suddenly now imparting reversal authority? [00:23:41] Speaker 00: I mean, I think because of the parallel construction with B2. [00:23:44] Speaker 01: No, B2. [00:23:45] Speaker 01: And you're talking about the Tadlock decision. [00:23:49] Speaker 01: In Tadlock, we just said, for prejudicial error purposes, they could affirm. [00:23:54] Speaker 01: That's not the same thing as saying they could reverse. [00:23:58] Speaker 01: Those are two very different things. [00:24:02] Speaker 00: I suppose we view that differently than, Your Honor. [00:24:05] Speaker 00: I don't understand how you view it, because you're not explaining it. [00:24:09] Speaker 00: I apologize if I'm not explaining it clearly, but I think that's what the provision does. [00:24:15] Speaker 00: And if you look at Mariano, I think that's a good way of seeing how it would function in practice. [00:24:25] Speaker 00: If there are no further questions, I'll stop there. [00:24:30] Speaker 03: I'd like to begin by directing the Court's attention to the language of 7252, the jurisdictional statute of the Veterans Court, which in part A does give the power to reverse, but specifically refers to board decisions or to remand the matter as appropriate. [00:24:50] Speaker 03: In subsection B of 7252 is where the language is used in B, the introductory [00:25:00] Speaker 03: phrase for B1 and B2 and refers to the proceedings before the secretary and the board. [00:25:07] Speaker 03: It seems to me that the flaw in the government's argument to suggest that somehow B1 is only about board decisions and doesn't refer to the secretary's application is simply to ignore the plain language used by Congress. [00:25:23] Speaker 03: Congress clearly understood how to use those two terms together, and they chose not to. [00:25:28] Speaker 03: Now, precisely why they did, I'm not prepared to speculate. [00:25:32] Speaker 04: Well, it's not that because the record, which is what the Veterans Court is reviewing, is made before the secretary, which in this case, they seem to be talking about the regional offices and at the board. [00:25:44] Speaker 04: But I would assume that that doesn't mean that when reviewing a final board decision, which is all [00:25:52] Speaker 04: outside the mandamus context that the Veterans Court can review, that they can ignore the board's decision and just look back and review the RO decision de novo. [00:26:03] Speaker 04: That's not the way the system is set up. [00:26:05] Speaker 04: But they can review factual determinations made by the secretary that underlie the board's decision. [00:26:10] Speaker 03: That would be correct, Your Honor. [00:26:12] Speaker 04: But I'm not sure what difference that makes to your argument. [00:26:16] Speaker 03: Well, I think that the difference that it makes is in 7261 under a three, the language is to hold unlawful and set aside findings, and then it has a parenthetical reference to clause four, conclusions, rules, and regulations issued or adopted by the secretary. [00:26:40] Speaker 03: the board or the chairman of the board found to be. [00:26:44] Speaker 03: So it seems to me that in that language, the review is more expansive than the limiting language that seems to appear in 7252 of reviewing a board decision. [00:26:57] Speaker 04: Can I just put that, I know you're about out of time, but this question we were just entered with the government counsel about what take due account means. [00:27:06] Speaker 04: I mean, for prejudicial AR, that clearly means that they can [00:27:10] Speaker 04: in taking into account of a prejudicial error they can affirm rather than vacate and remand, right? [00:27:17] Speaker 04: Why isn't the government's view that take into account the benefited out role means they can reverse instead of remand? [00:27:26] Speaker 04: Isn't that giving some authority to the Veterans Court in B that isn't present in A? [00:27:33] Speaker 04: Because in A, when it finds an error, it specifically says that they shall set aside the decision. [00:27:41] Speaker 04: So B is a statutory authority to do something other than setting it aside, either affirm or reverse in the face of an error. [00:27:50] Speaker 03: And I can't challenge that logic, Your Honor. [00:27:52] Speaker 03: I think that that logic is [00:27:54] Speaker 03: reasonable, however. [00:27:56] Speaker 04: So what you're talking about is not really so much about how they take it into account, but really whether you and your clients have to specifically raise it to the Veterans Court, or whether they have a sua sponte duty to review the record, which then, I guess, potentially could allow you to say they haven't followed the statute up here if they haven't done that. [00:28:21] Speaker 03: That would be correct, Your Honor. [00:28:23] Speaker 03: And the other piece of it is that in reviewing the secretary's application of 5107, it seems to my clients that what Congress did in 5107 was binary. [00:28:37] Speaker 03: If there is reasonable doubt, the secretary shall resolve that doubt in favor of the claimant. [00:28:44] Speaker 03: And when that doesn't happen, it seems to me that the only remedy is reversal. [00:28:49] Speaker 03: Remand would seem... [00:28:53] Speaker 03: unnecessary, simply because the only choice the secretary has when reasonable doubt presents is to afford it. [00:29:03] Speaker 01: And you're packing up, but I have a couple questions, if you don't mind. [00:29:06] Speaker 01: Oh, yes, ma'am. [00:29:06] Speaker 01: The questions are very basic stuff. [00:29:09] Speaker 01: Is this the only statutory section in the code related to these veterans cases that talks about prejudicial error and the CAVC's authority to look at prejudicial error? [00:29:21] Speaker 03: It's the only one that I'm aware of, Your Honor. [00:29:23] Speaker 01: And then the next question I had is, what is the difference between the record of proceedings before the secretary and the record of proceedings before the Board of Veterans' Appeals? [00:29:33] Speaker 01: And I guess what I'm getting at in specific is, is additional fact-finding or development of the record possible before the board? [00:29:42] Speaker 01: I'm trying to understand, back to Judge Stoll's earlier question, [00:29:46] Speaker 01: When B says the court shall view the record of the proceedings before the secretary and the Board of Veterans' Appeals, how is it that those two records could be different such that Congress would want to make sure both were considered? [00:29:58] Speaker 03: I'm afraid that's a long answer, but the answer... Might not to be too long. [00:30:02] Speaker 03: Well, it's long because there's a legacy answer and there's an AMA answer. [00:30:08] Speaker 03: The record is constrained under the AMA. [00:30:13] Speaker 03: The record was not constrained under legacy. [00:30:16] Speaker 03: So when you have a legacy situation, the answer is, yes, there could be additional evidence that was only considered by the board under legacy. [00:30:26] Speaker 03: That is not supposed to happen with one exception. [00:30:29] Speaker 03: There is a window under the AMA in which the veteran can submit evidence [00:30:34] Speaker 03: that wasn't previously submitted. [00:30:37] Speaker 03: I believe it's a 60-day window after you make the declaration for review, direct review by the board. [00:30:44] Speaker 03: So I hope that answers the question. [00:30:47] Speaker 01: So there are circumstances, though narrow, where the record before the secretary and the record before the board could not be identical. [00:30:55] Speaker 03: Would in fact be different. [00:30:56] Speaker 01: Yeah. [00:30:57] Speaker 03: Yes. [00:30:59] Speaker 01: Thank you. [00:31:00] Speaker 03: Thank you very much. [00:31:01] Speaker 01: This case is taken under submission.