[00:00:00] Speaker 02:
The most argued case is number 21-2334, Pirage Against McDonald's.

[00:00:07] Speaker 02:
Mr. Dohakis.

[00:00:09] Speaker 00:
Good morning, and may it please the court.

[00:00:11] Speaker 00:
Kenny Dohakis for the appellant.

[00:00:13] Speaker 00:
I think it appropriate to begin where we ended in our reply brief, in that the secretary asked his court to accept that a single passage

[00:00:20] Speaker 00:
from a single report in one house of Congress should inform us what all members of Congress meant when they promulgated 5110G in 1962.

[00:00:30] Speaker 00:
But as Exxon Mobil cautions, that is not how the courts are to interpret statutes.

[00:00:35] Speaker 00:
Rather, the actual words that were put in the statute inform us what it means.

[00:00:40] Speaker 00:
And when, as here, Congress provides an additional year of retroactive benefits for a liberalizing law, this court must not allow the VA to invent additional restrictions that are not found in the statute.

[00:00:53] Speaker 03:
This is especially true where Congress explicitly--"

[00:01:00] Speaker 03:
I've been thinking about what veteran who succeeds in establishing eligibility necessarily based on some law enacted by Congress would not be set to have eligibility based on a liberalizing law.

[00:01:25] Speaker 03:
At some point, that law didn't exist, and then it does, and the veteran prevails under it.

[00:01:32] Speaker 03:
So that would be universal, wouldn't it, if the only focus were the substance of the law as opposed to the act of creation?

[00:01:43] Speaker 00:
No, Your Honor.

[00:01:45] Speaker 00:
I think, to assuage your concerns, 1110

[00:01:50] Speaker 00:
for combat veterans.

[00:01:51] Speaker 00:
I think it's 1131 for non-combat veterans.

[00:01:56] Speaker 00:
Establishes the general requirements for establishing benefits, that you have an injury, disease, and service that results in disability, and you prove that they're related.

[00:02:06] Speaker 03:
So at some point, 1110 and 1131,

[00:02:09] Speaker 03:
didn't exist.

[00:02:10] Speaker 03:
And when they did exist, they were liberalizing laws.

[00:02:13] Speaker 00:
But those existed prior to 5110G, Your Honor.

[00:02:16] Speaker 00:
And so I would submit that by looking at when Congress created, as they said, a new provision of law to uniformly control effective dates, that because the amendment to 5110 came after,

[00:02:36] Speaker 00:
And two, in the 5110 itself, under subsection A, it's when the benefits manifest, facts found, or the date of application.

[00:02:49] Speaker 00:
But I don't read and I would not ever argue that every single time a veteran is entitled to or proves compensation that it's liberalized.

[00:02:58] Speaker 03:
Obviously, it cannot possibly mean that.

[00:03:01] Speaker 03:
So then the question is, what

[00:03:03] Speaker 03:
must it mean?

[00:03:05] Speaker 03:
And I guess the only real alternative that I'm focusing on is that it must mean that the enactment at the time of the enactment, either in VA or in Congress, switched an ineligibility to an eligibility.

[00:03:22] Speaker 03:
It has to be focused on the performative act of

[00:03:29] Speaker 03:
of creating a new basis of entitlement at that time.

[00:03:35] Speaker 03:
Because I can't think of another meaning.

[00:03:37] Speaker 00:
I don't believe so, Your Honor.

[00:03:39] Speaker 00:
And I didn't brief.

[00:03:40] Speaker 00:
And I apologize.

[00:03:41] Speaker 00:
I'm not entirely read up on what is a liberalizing law.

[00:03:46] Speaker 00:
As we mentioned in our reply brief, Ortiz dealt with that issue.

[00:03:49] Speaker 00:
But I understand liberalizing law to mean that they, in some way, make it easier to prove your benefit.

[00:03:56] Speaker 03:
Liberalizing is not in 5110G, right?

[00:03:59] Speaker 00:
No, Your Honor.

[00:04:01] Speaker 03:
It is... This is just getting benefits pursuant to an act or administrative issue.

[00:04:11] Speaker 03:
Yes, Your Honor.

[00:04:13] Speaker 03:
Which, if you focus only on the substance of an act or issue, is every veteran who gets benefits.

[00:04:21] Speaker 03:
Otherwise they couldn't get benefits.

[00:04:25] Speaker 03:
I think, Your Honor, that women can't focus on the substance of the act or agency issue.

[00:04:35] Speaker 03:
It has to focus on the enactment, the act of creating this.

[00:04:43] Speaker 00:
I think the answer to that question, Your Honor, is that

[00:04:47] Speaker 00:
The creation, when Congress, 110 aside, the general basic principles of establishing compensation or pension or 1151, DIC, other benefits, because I would argue that because those pre-existed, they should not fall underneath the rubric of

[00:05:05] Speaker 00:
this statute, 5110G.

[00:05:08] Speaker 00:
But when Congress doesn't really create new entitlements, I mean they certainly could, but I am not aware of any new entitlement to a new benefit.

[00:05:19] Speaker 00:
What they do is when they pass a new law, for instance the PACT Act was passed in August just a few months ago, and they've made it easier

[00:05:28] Speaker 00:
like they did in 1116 here, for certain veterans to establish entitlement to benefits.

[00:05:34] Speaker 00:
So they said, we don't need you to produce evidence that this occurred to you, or that this disease is caused by your service.

[00:05:42] Speaker 00:
We now are just going to presume that it is.

[00:05:44] Speaker 00:
That is what we read 5110G to refer to when it says, awarded pursuant to any act.

[00:05:53] Speaker 00:
But again, 1110.

[00:05:56] Speaker 00:
is the general statutory authority for establishing benefits.

[00:06:02] Speaker 00:
And that should not and cannot apply to any act as it's read in 5110G.

[00:06:12] Speaker 00:
And I would point to, Your Honor, that when we look at the statute,

[00:06:17] Speaker 00:
The rest of 5110 tells us why Congress did not intend for the veteran or the claimant to meet the qualifications when the act was promulgated.

[00:06:29] Speaker 00:
And as we cited in our brief, there are numerous times when Congress wanted the veteran to file within a year of qualifying, and they said so.

[00:06:42] Speaker 00:
So B4A.

[00:06:46] Speaker 00:
An award of pension is awarded up to a year, if the veterans applies, within one year of such date becoming permanently and totally disabled.

[00:06:55] Speaker 00:
B, C, Section 1151, again, that's for treatment, negligent treatment and others, where the date of such injury was suffered is received within one year from such date.

[00:07:08] Speaker 00:
And 1151.10.D, again, for a

[00:07:14] Speaker 00:
DIC application or death pension if it's received within one year of the date of death and then of course the increased rating which we under be to a I'm sorry Well the increased rating where if you file within a year of the increase or worsening

[00:07:31] Speaker 00:
they're going to retroactively pay you back to the date of worsening.

[00:07:36] Speaker 00:
But if you wait more than a year in that case or in any of these cases, then you don't get the benefit of that.

[00:07:41] Speaker 00:
You have to have filed within that year in order to get the benefit of the retroactive benefit.

[00:07:46] Speaker 00:
So if, for instance, you had an 1151 claim and you waited three years to file the claim, you don't get a retroactive award.

[00:07:55] Speaker 00:
But if you waited 11 months or 12 months, you would get the benefit of that effective date.

[00:08:01] Speaker 00:
And that, to me, is the most compelling reason why 5110G must be read the way that we are submitting, because Congress did not put in there that you have to submit or do anything within a year of anything.

[00:08:18] Speaker 00:
They just said that if it's awarded and pursuant to the act, then they're going to pay you back up to a year

[00:08:25] Speaker 00:
but no earlier than the act itself.

[00:08:27] Speaker 00:
And that's, of course, assuming within the general restrictions of in accordance with the facts found, which as we've talked about in our briefing, although this court has not yet interpreted what that means, we think that we agree with what the Veterans Court said, that it's basically when the disability manifests itself.

[00:08:45] Speaker 00:
So you have to have

[00:08:46] Speaker 00:
the impairments present in order to qualify for payment at that time.

[00:08:51] Speaker 03:
This is a slight detour.

[00:08:54] Speaker 03:
In some areas of law that I once knew a tiny bit about, there are incredibly important differences between having an injury and it manifesting.

[00:09:06] Speaker 03:
Is that of any relevance here?

[00:09:09] Speaker 00:
It is, Your Honor.

[00:09:10] Speaker 00:
And as we talked about in our brief,

[00:09:13] Speaker 03:
So let's say here, having a disability in a manifesto.

[00:09:17] Speaker 03:
Is that?

[00:09:20] Speaker 00:
I think under this court's precedent in Saunders, that disability cannot exist unless it's manifested.

[00:09:29] Speaker 00:
There has to be an impairment.

[00:09:31] Speaker 00:
That's how this court has equated or defined disability, to be an impairment.

[00:09:38] Speaker 00:
So turning back to the language, the only restriction is that the award must be pursuant to the act or the administrative issue.

[00:09:50] Speaker 00:
And the secretary really does her best to try to cram in a lot into these two words.

[00:09:57] Speaker 00:
But if you look at what those two words mean, Black's Law Dictionary defines pursuant to mean, and they list several different examples, but in compliance with, in accordance with,

[00:10:07] Speaker 00:
as authorized by.

[00:10:09] Speaker 00:
And we think that that's a common sense meaning.

[00:10:11] Speaker 00:
Webster's has a similar, they don't have pursuant, but the pursuant to is as a synonym according to.

[00:10:20] Speaker 00:
And we think, again, that's a common sense interpretation.

[00:10:24] Speaker 02:
Tell us how this applies in this case.

[00:10:27] Speaker 00:
So that's the restriction, Your Honor, pursuant to.

[00:10:30] Speaker 00:
So long as the award is made pursuant to.

[00:10:33] Speaker 00:
The government argues that those two words mean that at the time the act was made, the veteran, the claimant, has to have qualified for the benefits.

[00:10:42] Speaker 02:
And how does it apply to this veteran?

[00:10:45] Speaker 00:
So this veteran was awarded based on 1116 and the new presumptions that were afforded to him from Congress.

[00:10:53] Speaker 00:
He's a Vietnam veteran.

[00:10:55] Speaker 00:
The 1116 presumes that he was exposed to herbicides and that his cancer is related to that exposure.

[00:11:04] Speaker 00:
And more importantly, as we talked about, that his disease, the cancer itself, was incurred during his service in Vietnam.

[00:11:16] Speaker 02:
It seemed to me that this was what this was all about.

[00:11:20] Speaker 02:
Is there something special, something unique,

[00:11:23] Speaker 02:
about this, the enactments that related to herbicide exposure and the presumption that the illness, the disability was incurred perhaps years, many years, decades before anything became manifest.

[00:11:40] Speaker 02:
Are you arguing that there's anything different about that?

[00:11:44] Speaker 00:
I think in the facts of this case, yes, Your Honor.

[00:11:47] Speaker 00:
I think because of the nature of the herbicide presumptions and the 1116, and incidentally 1117 and some of the go for it, the new PACDAC may use a similar language where the disease is presumed to have been incurred during service.

[00:12:04] Speaker 00:
And that's taken right from the statute, shall be considered to have been incurred in or aggravated by such service.

[00:12:14] Speaker 00:
And incurred, as we talked about in our brief, means it happened, essentially, is the easy way to describe that.

[00:12:21] Speaker 00:
Now, we recognize that the VA has the option under 1113 to rebut that presumption.

[00:12:27] Speaker 00:
They didn't necessarily do that.

[00:12:29] Speaker 00:
They just awarded his benefits without really trying to establish when the

[00:12:35] Speaker 00:
the prostate, whether the prostate cancer was incurred.

[00:12:38] Speaker 00:
We're not suggesting that they should.

[00:12:40] Speaker 00:
But the incurred, I'm sorry, the pursuant to language, again, common sense, plain meaning, looking primarily to blacks as authorized by in accordance with or in compliance with.

[00:12:53] Speaker 00:
I see I'm into my rebuttal time.

[00:12:55] Speaker 00:
So if there are no other questions, I'll preserve the rest of my time.

[00:13:03] Speaker 00:
May I please the court?

[00:13:04] Speaker 00:
This court should decline Mr. Perich's invitation to strike down section 3.114A.

[00:13:10] Speaker 00:
The VA's regulation gives effect to 5110G's statutory limitation by granting an earlier effective date only when the enactment of the liberalizing act or administrative issue makes the veteran newly eligible for a benefit.

[00:13:22] Speaker 00:
This court should uphold section 3.114A just as it did in Evans and affirm the veteran's court's decision.

[00:13:28] Speaker 03:
Is there any

[00:13:31] Speaker 03:
difference between saying that if we were to say the statue itself

[00:13:40] Speaker 03:
does not apply unless the disease was, the disability was manifested at the time of the enactment of the substantive provision on which, that made the difference between ineligibility and ineligibility.

[00:14:01] Speaker 03:
Do we need to say anything about the regulation?

[00:14:04] Speaker 03:
I haven't figured out whether that's the only thing that would matter in this case.

[00:14:10] Speaker 03:
Is there more in the regulation that you're asking us to bless?

[00:14:18] Speaker 00:
I don't think so, Judge Toronto.

[00:14:21] Speaker 00:
So Mr. Paradich is asking this court to strike down the regulation.

[00:14:26] Speaker 00:
Our position is that the only reasonable way to interpret the statute is that which is reflected in the regulation, which I think is consistent with what

[00:14:34] Speaker 03:
Your honor just said does the regulation require more than what I just said, which I said something only about what was true on the date on the effective date of the let's just call it a liberalizing law without getting into what that means.

[00:14:51] Speaker 03:
there's more on the regulation, something about continuation of the disability until the time of the claim.

[00:14:58] Speaker 03:
We don't have to worry about that.

[00:14:59] Speaker 00:
That's not an issue in this case because Mr. Peredich does not contend that he could meet the first part, which is that the disability had been manifest at the time of the statute, the regulations enactment.

[00:15:13] Speaker 00:
So in that sense, I don't think the court needs to go any farther to consider the second portion of the regulation, which isn't an issue here.

[00:15:20] Speaker 02:
From what you say, there's no circumstance in which the one year would apply.

[00:15:25] Speaker 02:
Is that right?

[00:15:26] Speaker 02:
I'm trying to understand.

[00:15:27] Speaker 02:
It seemed to me this was specific to 5110G and herbicide exposure.

[00:15:36] Speaker 02:
You're saying that that should not be treated any differently from anything else?

[00:15:41] Speaker 00:
So 5110G applies to the presumption created in 1116 dealing with herbicide exposures in the same way that it applies to other liberalizing statutes.

[00:15:54] Speaker 00:
So 1116 is an example of a liberalizing statute.

[00:15:57] Speaker 00:
There are other liberalizing statutes.

[00:15:59] Speaker 00:
And our position is that, just as with any other liberalizing statute, the claimant has to be eligible for the liberalized benefit at the time of enactment to be eligible for this additional year under 5110G.

[00:16:17] Speaker 00:
So in that sense, there's nothing distinctive about 1116.

[00:16:23] Speaker 00:
The focus on the word incurred is not relevant in that the definition of service connection that Congress gives in section 101, parenthesis 16, also uses the word incurred.

[00:16:40] Speaker 00:
That's talking about service connection, which is a separate element from effective date.

[00:16:44] Speaker 00:
So the focus on the word incurred is misplaced in our view.

[00:16:49] Speaker 00:
The question is whether the pursuant to any act or administrative issue limiting the threshold requirement for Section 5110G is satisfied here, and it's not.

[00:17:04] Speaker 00:
And that's why the Secretary should prevail here.

[00:17:08] Speaker 00:
I'd also direct the court's attention to Ortiz, which came up only briefly.

[00:17:12] Speaker 00:
It's entirely consistent with our argument.

[00:17:16] Speaker 00:
Ortiz's construction or description of the legislative history is, we agree with it entirely.

[00:17:24] Speaker 00:
Ortiz said the purpose of 5110G was to give claimants a brief extra period, become aware of

[00:17:32] Speaker 00:
of a change, that purpose would not make sense if you're talking about a claimant who wasn't eligible at the time of the change and Ortiz quotes some of the same legislative history that we rely on.

[00:17:46] Speaker 02:
So in your view, is there any relation to the presumption of service connection for herbicide exposure?

[00:17:56] Speaker 02:
And when the particular illness, such as the cancer that takes so many years to grow, is recognized, it looked on the face of it as if there was some particular consideration that was being given to the nature of the disease that takes so long to become manifest, but now by statute existed at the time of exposure.

[00:18:24] Speaker 00:
Right.

[00:18:25] Speaker 00:
So 1116, the goal of it was to resolve these long running complicated debates that were attempting to connect with medical evidence the exposure that veterans had in Vietnam to later disabilities.

[00:18:40] Speaker 00:
And what Congress did was say, we're not going to require each individual veteran to show evidence of

[00:18:48] Speaker 00:
that complicated medical relationship, we're going to make it easier for veterans by creating this presumption of service connection.

[00:18:55] Speaker 00:
What that presumption said is that when a disability such as prostate cancer later manifests itself, we're going to make it easier for veterans to show that the ultimate

[00:19:05] Speaker 00:
origin of that disability was service-connected.

[00:19:08] Speaker 00:
There's a presumption of exposure to herbicides if you served in Vietnam, and there's a further presumption of service connection once you have that exposure.

[00:19:17] Speaker 02:
I read it that way, but doesn't that fit with the one-year retroactivity for that class of climate?

[00:19:27] Speaker 00:
Only for those whose disability had manifested itself at the time of the enactment of the... What do you mean by manifested?

[00:19:35] Speaker 02:
By the time a particular cancer or prostate cancer is diagnosed, it's been there for quite a while.

[00:19:45] Speaker 02:
So what do you mean by manifested itself?

[00:19:47] Speaker 00:
There has to be medical evidence of, so in the case of prostate cancer, it's a malignant tumor.

[00:19:53] Speaker 00:
That's the distinguishing feature of prostate cancer.

[00:19:56] Speaker 00:
There has to be medical evidence of that malignant tumor existing.

[00:19:59] Speaker 00:
That's how, in this case- Remember, there can be two things.

[00:20:03] Speaker 03:
What if the medical evidence comes in year 15 and the medical evidence says, in year one, you had it?

[00:20:11] Speaker 03:
Which date counts?

[00:20:12] Speaker 00:
That would be a different case.

[00:20:14] Speaker 00:
So Evans has a footnote talking about this in the context of PTSD.

[00:20:20] Speaker 00:
What Evans said is, you don't need to have been diagnosed with PTSD, but you need to have had symptoms of PTSD at the time of the enactment.

[00:20:29] Speaker 02:
Would that indeed be different?

[00:20:31] Speaker 02:
Isn't that the very distinction that this statute is trying to draw?

[00:20:36] Speaker 02:
Say, you can go back one year and no more, even though you obviously

[00:20:41] Speaker 02:
by the time the cancer is diagnosed.

[00:20:43] Speaker 02:
It's been growing for a while.

[00:20:46] Speaker 00:
No, Your Honor, I don't think so.

[00:20:48] Speaker 00:
I think what the, well, there are two different statutes.

[00:20:52] Speaker 00:
There's 1116 and there's 5110G.

[00:20:54] Speaker 00:
So what 1116 was trying to accomplish only related to service connection.

[00:20:58] Speaker 00:
1116 could have said something about earlier effective dates for diseases that take a long time to develop.

[00:21:05] Speaker 02:
Well, it does.

[00:21:05] Speaker 02:
It says you can't have an earlier effective date, but you can have one year.

[00:21:09] Speaker 00:
Well, that's what 5110G says, which was enacted decades before.

[00:21:14] Speaker 00:
So we don't think that 5110G was trying to change the way effective dates were calculated for long-running diseases or for long, slow-developing diseases.

[00:21:24] Speaker 00:
We're saying 5110G was thinking about a different problem, which is veterans who perhaps

[00:21:31] Speaker 00:
Perhaps you have prostate cancer.

[00:21:34] Speaker 00:
Take this example.

[00:21:35] Speaker 00:
You have prostate cancer in 1993 after serving in Vietnam.

[00:21:40] Speaker 00:
You look into applying for benefits for service connection, think that the evidentiary hurdle is too high to overcome, and kind of put it aside.

[00:21:50] Speaker 00:
And then decades later, you learn, wait, the standard has been liberalized now.

[00:21:57] Speaker 00:
In that case, we think it's unfair to claimants to make them realize right away that there's been a change in law.

[00:22:04] Speaker 00:
They might have looked into it beforehand and given up.

[00:22:07] Speaker 00:
That's what the extra year is intending to cover.

[00:22:10] Speaker 00:
That's distinct from the situation of slow-developing diseases, which arise in other contexts.

[00:22:15] Speaker 00:
It's not just prostate cancer.

[00:22:18] Speaker 00:
It's other types of cancer.

[00:22:19] Speaker 00:
It's arthritis.

[00:22:21] Speaker 00:
there hasn't been an indication that those types of diseases are, that Congress is trying to change the general rule that before a disability manifests itself, if there's some indication that the disease has been growing for a long time, it just hasn't manifested itself, that an earlier effective date should apply.

[00:22:40] Speaker 00:
The general purpose of compensating disabilities is to

[00:22:46] Speaker 00:
functional impairment or to rectify functional impairment of earning capacity.

[00:22:51] Speaker 00:
And there's no indication of any, in the case of somebody like Mr. Peyrovich or somebody who's similarly situated, there's no indication, certainly in this record, of anything before 2011 of any manifesting of the disease.

[00:23:02] Speaker 02:
So when would the one year apply?

[00:23:04] Speaker 00:
So generally, the one year would apply to the fact pattern that I alluded to earlier.

[00:23:11] Speaker 00:
A veteran who has prostate cancer in 1993 after serving in Vietnam, 1996, there is this new regulation, this liberalizing regulation.

[00:23:22] Speaker 00:
If that veteran, he or she applies any time after 1996,

[00:23:27] Speaker 00:
So long as they were eligible in 96, which under my hypothetical they would be and remain continuously eligible, then they would get that extra year of back benefits.

[00:23:37] Speaker 02:
They couldn't go back to 1993, right?

[00:23:39] Speaker 02:
Correct.

[00:23:41] Speaker 02:
You don't see the one year as an attempt of the government to limit claims or to enlarge an opportunity.

[00:23:52] Speaker 00:
So the one year, yes, it's only one year, if that's Your Honor's question.

[00:23:57] Speaker 00:
It can't go back.

[00:23:58] Speaker 00:
You can't get more than a year of retroactive benefits.

[00:24:01] Speaker 00:
And you can't go back past the effective date of the liberalizing enactment.

[00:24:06] Speaker 02:
So if you apply eight months.

[00:24:07] Speaker 02:
Why can't you get at least up to one year?

[00:24:12] Speaker 00:
I'm sorry, Your Honor?

[00:24:13] Speaker 00:
Why can't you get?

[00:24:14] Speaker 02:
It works both ways, does it not?

[00:24:17] Speaker 02:
You can't go back more than one year at the same time

[00:24:20] Speaker 02:
If you have an illness that obviously you've had longer than the day you eventually went to see a doctor, that you're entitled to the one year, at least in this herbicide exposure context, where by definition and by statute, entitlement goes back to your service in Vietnam.

[00:24:44] Speaker 00:
So to be precise, by statute, your service connection, the service connection of the

[00:24:50] Speaker 00:
The service connection of the disability goes back to your Vietnam service in the sense that there's a presumption that the disease was incurred in Vietnam.

[00:25:01] Speaker 00:
But again, that only relates to service connection.

[00:25:03] Speaker 00:
It says nothing about the effective date, which is determined pursuant to a separate statute and a separate regulation.

[00:25:11] Speaker 00:
So again, our position is that 1116 doesn't affect the effective date at all.

[00:25:18] Speaker 00:
And the one-year limitation, that's set forth in 5110G.

[00:25:24] Speaker 00:
It's also implemented by the VA and its regulation.

[00:25:29] Speaker 00:
And so too is the limitation that you can't go back past the effective date of the liberalizing statute.

[00:25:39] Speaker 00:
Ultimately, in a situation like Mr. Peridich, he is similarly situated to other claimants who fall under the default rule in that when he was diagnosed with prostate cancer in 2011, the VA had already enacted this liberalizing change.

[00:25:58] Speaker 00:
So he could have identified his eligibility for proceeding under this theory, just like any other claimant could have.

[00:26:06] Speaker 00:
The anomaly of his argument is that

[00:26:09] Speaker 00:
If we compare Mr. Peridich to somebody who proceeds under the traditional 1110 theory of service connection, that person's going to have a harder time establishing service connection.

[00:26:22] Speaker 00:
They're going to have to present medical evidence of service connection.

[00:26:25] Speaker 00:
But they're still not going to be entitled to that additional year that Mr. Peridich is entitled to.

[00:26:30] Speaker 00:
And that would be an arbitrary distinction, even accepting

[00:26:33] Speaker 00:
Mr. Perich's limiting framework whereby pre-1962 versus post-1962 would still entitle anybody post-1962 who proceeds under a theory that was first created post-1962 to recover an additional year of benefits more than somebody who actually has to prove service connection under 1110.

[00:26:55] Speaker 00:
We would submit that that's not a reasonable construction of the statute once all the traditional tools of statutory interpretation are applied.

[00:27:02] Speaker 00:
Happy to address any other questions the panel has.

[00:27:05] Speaker 00:
If not, we ask the court.

[00:27:06] Speaker 00:
Firm.

[00:27:09] Speaker 00:
Thank you.

[00:27:11] Speaker 00:
I have a lot to go through, so hopefully I can get it all in.

[00:27:14] Speaker 00:
Number one, I want to address Judge Newman's line of questioning about whether herbicides are important in here.

[00:27:22] Speaker 00:
And I point to the fact that, as the government can acknowledge,

[00:27:27] Speaker 00:
For cancer, it's when you have the cancer, because just having the cancer is a total rating under any circumstance.

[00:27:34] Speaker 00:
And 1116, as Judge Newman pointed out, does much more than what the government is saying.

[00:27:39] Speaker 00:
It's not a presumption of service connection.

[00:27:41] Speaker 00:
It is the disease specified or each additional disease that's added shall be considered to have been incurred in such service, such service referring to Vietnam or other locations, depending on where the veteran was.

[00:27:57] Speaker 00:
And so the distinction and the importance of Vietnam in 1116 is that the diseases concurred in service.

[00:28:05] Speaker 00:
So that's why this rule applies, particularly with herbicide-related diseases.

[00:28:13] Speaker 00:
The concern about giving them time to apply, Mr. Purge could have applied at any time between 2011 and 17 when he was diagnosed.

[00:28:23] Speaker 00:
There's no reason in the words of the statute that he should be precluded from benefiting from this because he wasn't diagnosed in 1990s when the law was added in.

[00:28:37] Speaker 00:
Turning to the legislative history that the government cited,

[00:28:41] Speaker 00:
They left out quite a bit.

[00:28:43] Speaker 00:
I'm running short on time, but I do want to just highlight this is a new provision of law which will provide a uniform rule governing effective dates.

[00:28:50] Speaker 00:
That was the intent of the new rule, where liberalizing laws or administrative issues are enacted or promulgated.

[00:28:58] Speaker 00:
They pointed out that prior to this, each law had its own effective dates.

[00:29:01] Speaker 00:
So there was a mismatch of effective dates, and they wanted to make it uniform.

[00:29:05] Speaker 00:
And it concludes with this subsection that

[00:29:10] Speaker 00:
This would permit payment from the effective date if it is filed within a year thereafter Speaking about the law or for a period of a year prior to the claim if it is filed at a later date there's there's nothing in this the words of the statute or even the the legislative history the Senate report that the government cited to that says you have to have qualified and known about your qualification at the time the law was passed and it very clearly says if it's filed at a later date and

[00:29:38] Speaker 00:
And I would just sum up by saying that nothing that the government has argued is found in the statute.

[00:29:48] Speaker 00:
It doesn't say anything that they have.

[00:29:50] Speaker 00:
All that they can hang their hat on are two words pursuant to which we would ask the court to find qualifies Mr. Perch and to invalidate the regulations requirement that are not found in the statute.

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