[00:00:00] Speaker 02:
Okay, the second appeal is docket number 23-1047, Champagne versus McDonough.

[00:00:40] Speaker 02:
Good morning, Your Honors.

[00:00:47] Speaker 00:
May it please the Court?

[00:00:49] Speaker 00:
My name is Fallon Marie Lopenzina and I'm here to represent Mr. Champagne, Julian P. Champagne, as Appellant's Counsel.

[00:00:57] Speaker 00:
There are two issues in this case, Your Honors.

[00:01:01] Speaker 00:
The first is the misinterpretation of 38 CFR 3151A.

[00:01:06] Speaker 00:
The Veterans Court misinterpreted the statute based on its, the regulations, excuse me, based on its reliance on Stewart, which found that 3151A is permissive in nature for the purposes of permitting the VA to use its discretion to elect the type of benefit being sought by the veteran.

[00:01:25] Speaker 00:
Unfortunately, Stewart and the Veterans Court misinterpretation of 3151A flies in the face of the plain language of the statute.

[00:01:34] Speaker 00:
It gives unfettered discretion to the board to determine which benefit will be awarded as opposed to the veteran, which

[00:01:41] Speaker 00:
squarely places the power, 3151A squarely places the power to elect the type of benefits thought within the control of the claimant.

[00:01:49] Speaker 02:
What statute are you talking about?

[00:01:50] Speaker 02:
3151A is a regulation, right?

[00:01:52] Speaker 00:
I'm sorry.

[00:01:53] Speaker 00:
I keep saying statute, Your Honor.

[00:01:55] Speaker 00:
My apologies.

[00:01:56] Speaker 00:
Mr. Carpenter is continually reminding me of that.

[00:01:59] Speaker 00:
I mean regulation.

[00:02:00] Speaker 00:
Okay.

[00:02:01] Speaker 02:
Thank you.

[00:02:02] Speaker 00:
So regulation 38 CFR 3151A.

[00:02:05] Speaker 00:
And thank you for bringing that to my attention.

[00:02:08] Speaker 02:
So how do you think this should work?

[00:02:11] Speaker 02:
If a veteran files a claim, what's the VA's supposed to do?

[00:02:17] Speaker 00:
This particular form that the veteran filled out was entitled

[00:02:21] Speaker 02:
I don't really want to talk about the Pax's case because you know we can't apply the law to the Pax.

[00:02:27] Speaker 02:
What's your view of what this regulation requires the VA to do?

[00:02:31] Speaker 00:
It requires the VA to adjudicate the issue of pension and service connection and then give notice to the veteran about what the greater award is and only then may the veteran elect the lesser benefit.

[00:02:44] Speaker 02:
In your view, this regulation requires that every single application that every veteran files with the VA

[00:02:50] Speaker 02:
they have to look at pension and benefits claims.

[00:02:53] Speaker 00:
Every application that is titled pension or service connection, correct?

[00:02:59] Speaker 02:
Even if there's no indication other than the title of the form that the applicant is interested in both.

[00:03:06] Speaker 00:
What other indication would the veteran have if they're filling out a form that says they're applying for both service connection or pension?

[00:03:13] Speaker 02:
This regulation, though, it doesn't say whenever a veteran fills out a claim form

[00:03:20] Speaker 02:
that could optionally serve as a claim for compensation or for pension.

[00:03:28] Speaker 02:
It just says, you know, a claim by a veteran for compensation may be considered a claim for a pension and vice versa.

[00:03:37] Speaker 00:
That's not all that it says.

[00:03:38] Speaker 00:
It says that the greater benefits will be awarded.

[00:03:40] Speaker 02:
Hold on a second.

[00:03:42] Speaker 02:
I'm just trying to understand your theory of this rule.

[00:03:45] Speaker 02:
And I think your theory of the rule necessarily requires that

[00:03:50] Speaker 02:
any claim submission by a veteran has to necessarily be considered by the VA as a claim for compensation as well as alternatively for pension and then whichever one gets the greater benefit is the one that the VA will provide.

[00:04:10] Speaker 00:
Right, because that's what the regulation says.

[00:04:12] Speaker 02:
Yeah, but I just want to make clear, I just want to make clear, your initial argument was, well, when the form says

[00:04:20] Speaker 02:
this can be a claim for pension or compensation, but in fact it has nothing to do with the format of the form.

[00:04:30] Speaker 02:
That doesn't matter.

[00:04:31] Speaker 02:
This is a purely legal question that every time in your view when a veteran submits a claim, the VA has zero discretion.

[00:04:39] Speaker 02:
It has to consider it both as a possible compensation and

[00:04:44] Speaker 02:
and also pension.

[00:04:45] Speaker 00:
That's because that's what the regulation says.

[00:04:47] Speaker 02:
No, no, I just needed yes or no.

[00:04:48] Speaker 00:
Yes.

[00:04:49] Speaker 02:
Yes, so that's your question.

[00:04:50] Speaker 00:
But the form also is not just for compensation.

[00:04:53] Speaker 00:
It says application for disability compensation or nonservice-connected pension.

[00:04:59] Speaker 02:
Right, but right now we're just looking at the regulation in isolation.

[00:05:03] Speaker 02:
We're not worrying yet about Champaign's financial.

[00:05:07] Speaker 02:
So let's just talk a little bit more technically about what the regulations are.

[00:05:14] Speaker 00:
The regulation states that the greater benefit will be awarded unless the claimant specifically elects the lesser benefit.

[00:05:23] Speaker 00:
We cannot construe

[00:05:26] Speaker 00:
a regulation that says specifically elect the lesser benefit to mean that the VA gets to unilaterally use their discretion to determine what the veteran was trying to do when they submitted that form.

[00:05:42] Speaker 02:
I'm going to obviously ask the government about the third sentence, but I feel like I have to ask you about the second sentence where it says it may be considered to be a claim

[00:05:54] Speaker 02:
for pension, likewise, may be considered to be a claim for compensation.

[00:05:59] Speaker 02:
I mean, isn't your argument, isn't your argument essentially rewriting that second sentence into a veteran's claim will be considered both a claim for pension and a claim for benefits?

[00:06:17] Speaker 02:
I think that's the real question.

[00:06:23] Speaker 00:
Can you ask the question again?

[00:06:24] Speaker 02:
I mean, you said earlier that the VA has to consider that in both.

[00:06:29] Speaker 02:
So if that's what you're saying that this regulation requires, aren't you rewriting that second clause into the VA will consider an application both as a claim for benefits and as a claim for attention?

[00:06:42] Speaker 00:
No, I'm not writing it.

[00:06:43] Speaker 00:
The VA wrote it in the reg.

[00:06:45] Speaker 02:
No, no, that doesn't say what I just said, right?

[00:06:48] Speaker 02:
But that's what your interpretation of that sentence is, that it will consider it, instead of it may consider it.

[00:06:54] Speaker 00:
I'm not interpreting anything.

[00:06:55] Speaker 00:
I'm just looking at the plain language of this statute.

[00:06:58] Speaker 02:
Well, the plain language does not say will.

[00:07:01] Speaker 02:
It says may.

[00:07:04] Speaker 02:
Your interpretation is will.

[00:07:06] Speaker 02:
Is that correct?

[00:07:07] Speaker 00:
Incorrect.

[00:07:08] Speaker 02:
So your interpretation is not that they will consider both types of benefit claims?

[00:07:14] Speaker 02:
It is.

[00:07:15] Speaker 02:
You said that earlier, that it's incompetent upon the VA to consider a claim under both a benefit claim and a contingency claim.

[00:07:22] Speaker 00:
Right, because of the second sentence in the reg that the VA wrote.

[00:07:27] Speaker 02:
But that's your position.

[00:07:28] Speaker 02:
If I may... And where do you locate that?

[00:07:30] Speaker 00:
If I may speak to the language in the reg so that I can explain.

[00:07:37] Speaker 02:
I know you get frustrated with me, but you interrupt me constantly.

[00:07:42] Speaker 02:
This second sentence does may, but your interpretation would convert that to will.

[00:07:49] Speaker 02:
Is that not true?

[00:07:50] Speaker 00:
No it is not.

[00:07:51] Speaker 00:
Why not?

[00:07:52] Speaker 00:
because the only reason that the language may be used is because the VA was intending to ignore the discretion to the veteran by then saying the greater benefit will be awarded unless the claimant expressly

[00:08:08] Speaker 00:
elect, specifically elect the lesser benefit.

[00:08:11] Speaker 00:
So basically the VA was saying, it can be one for either or, but we're going to determine what the greater or lesser benefit is, and then the veteran must specifically elect the lesser if that is what they choose.

[00:08:22] Speaker 00:
So the first sentence does not inert discretion to the VA, it inners the discretion to the veteran based on the second sentence in the reg.

[00:08:30] Speaker 02:
I really think that when the VA enacted this regulation,

[00:08:32] Speaker 02:
They intended for the regional office have to consider every single claim submitted by the millions of veterans under both schemes.

[00:08:43] Speaker 00:
Only when the application says disability compensation or pension.

[00:08:48] Speaker 02:
Are there different applications?

[00:08:50] Speaker 00:
There's other applications that are just for service connection disability compensation, correct.

[00:08:58] Speaker 02:
Do you have any sense of how often this one is used versus the other ones?

[00:09:03] Speaker 00:
Tens of thousands of veterans have utilized this application that says pension or service connection in order to retrieve benefits.

[00:09:14] Speaker 02:
But your argument is that the VA only has to do the analysis of both the disability claim and the pension claim if this form is used?

[00:09:26] Speaker 00:
Correct, Your Honor.

[00:09:28] Speaker 02:
And is there anything in the regulation or any other authority that would say the regulation means that with respect to this form, but not with respect to other forms?

[00:09:40] Speaker 00:
Because this regulation was enacted at the same time that that form was put into place.

[00:09:45] Speaker 02:
So the regulation would then support the... There's no reference to the form, right, than the regulation?

[00:09:54] Speaker 02:
And certainly the language that we're arguing about doesn't have any reference to any form, does it?

[00:10:02] Speaker 00:
What other purpose would the regulations serve if not to support the form that they're using to obtain benefit?

[00:10:09] Speaker 02:
I guess the concern we have, it sounds like, is that it would be strange for us to interpret this regulation on a form-by-form basis when the regulation itself says nothing about the character of any particular form.

[00:10:24] Speaker 00:
I think that we're getting away from the issue here, which is that there's a regulation in place that the VA must follow according to a CARDI, and I don't think it matters what form.

[00:10:31] Speaker 02:
I don't think we're getting away from the question because you're the one, as I understood your opening argument, that introduced the idea that it matters what kind of form that we should be

[00:10:43] Speaker 02:
that we're looking at to decide how to apply the regulations.

[00:10:46] Speaker 00:
I'm not concerning myself with other forms that other veterans apply.

[00:10:50] Speaker 00:
I represent Mr. Champagne, and this is the form that he used to apply for benefits, and this is the regulation that is extant at the time.

[00:10:58] Speaker 02:
In your argument that if it's just a form for benefits, they don't have to determine

[00:11:03] Speaker 02:
the pension benefits.

[00:11:04] Speaker 00:
No, I'm not making that argument.

[00:11:05] Speaker 00:
That's for another case and another lawyer.

[00:11:07] Speaker 00:
This is a form that my client used.

[00:11:10] Speaker 02:
We're an appellate court.

[00:11:11] Speaker 02:
We are not the initial trial factor.

[00:11:13] Speaker 02:
And so we have to figure out the logical extent of your argument and how far it extends.

[00:11:19] Speaker 02:
And so you don't get a refuse to answer our hypothetical questions just because you don't want to.

[00:11:25] Speaker 02:
And so why would your argument be limited to people that filled out the application for compensation or a pension form

[00:11:32] Speaker 02:
based upon this regulation.

[00:11:34] Speaker 02:
If your argument is that third sentence requires the VA to determine whether a veteran is entitled to which award is higher, why wouldn't it apply to all veterans?

[00:11:46] Speaker 00:
It should apply to all veterans, but I'm here to argue on behalf of Mr. Champagne.

[00:11:49] Speaker 02:
OK, so it doesn't matter then what form this applies to.

[00:11:53] Speaker 02:
If it applies to all veterans, it applies to all veterans.

[00:11:55] Speaker 00:
What I'm saying is that this is a pro-claimant system, and when a veteran reads an application to say disability, compensation, or pension, that's what they expect to be adjudicated, one or the other.

[00:12:04] Speaker 02:
And then based on the regulation... Does it matter which form they file, or does it not matter?

[00:12:10] Speaker 02:
In this case, it matters that... Does it matter under this regulation in your interpretation?

[00:12:15] Speaker 00:
Under the regulation, it doesn't matter, no.

[00:12:17] Speaker 00:
I mean, it should be... The regulation says what it says and it should be followed regardless.

[00:12:24] Speaker 02:
You have a whole alternative argument, which I think you say is the basis for performance, that somehow the Veterans Court did its own improper fact-finding.

[00:12:33] Speaker 02:
What fact-finding did they do that was improper?

[00:12:37] Speaker 00:
There was a January 2018 rating decision that finally adjudicated the issue of whether or not the 1987 application was one for pension or service connection and it did in fact state it was for both and it denied service connection stating that the elements were not met at the time.

[00:12:54] Speaker 02:
And the board and the Veterans Court weren't obligated to follow that, were they?

[00:12:58] Speaker 00:
Well, the board was required to address the finding of fact made by the regional office because the veteran filed... I'm getting distracted.

[00:13:05] Speaker 02:
What is the finding of fact that the Veterans Court did here that is improper?

[00:13:11] Speaker 02:
What did they specifically find that you say they shouldn't have found, the Veterans Court?

[00:13:15] Speaker 00:
The Veterans Court found that there was no finding of fact made, and if there had been, that it was inconsequential.

[00:13:23] Speaker 02:
Okay, I understand.

[00:13:24] Speaker 02:
Thank you.

[00:13:25] Speaker 02:
Ms.

[00:13:26] Speaker 02:
Latham-Zena, you're into your rebuttal.

[00:13:27] Speaker 02:
Do you want to save it?

[00:13:30] Speaker 00:
Thank you.

[00:13:35] Speaker 02:
Ms.

[00:13:35] Speaker 02:
Tanton?

[00:13:37] Speaker 02:
Okay.

[00:13:38] Speaker 01:
Thank you.

[00:13:39] Speaker 01:
May it please the court?

[00:13:40] Speaker 01:
The court should dismiss Mr. Campaign's appeal based on lack of jurisdiction.

[00:13:44] Speaker 02:
Why?

[00:13:44] Speaker 02:
I mean, we're... I know you always make that argument, me and you have, but we're clearly talking about the proper interpretation of this regulation, right?

[00:13:51] Speaker 02:
And we have jurisdiction to consider that.

[00:13:54] Speaker 01:
Right, the court has jurisdiction if it finds that the Beckham's Court engaged in an interpretation of section 3.151A.

[00:14:01] Speaker 02:
Well, it at least implicitly did when it relied on this court case, which interpreted the regulation as the government wants to interpret it.

[00:14:09] Speaker 02:
So don't waste your time on the jurisdictional stuff.

[00:14:12] Speaker 02:
This is not the VA's worst regulation, but it's certainly not the best regulation, because that third sentence

[00:14:18] Speaker 01:
is confusing when read in the context of the second sentence.

[00:14:31] Speaker 01:
So how do you explain that?

[00:14:34] Speaker 01:
and a claim by a veteran for pension may be considered to be a claim for compensation relates back to the veteran having first filed a specific claim on the form prescribed by the secretary as described in the first sentence.

[00:14:48] Speaker 01:
Before moving on to the third sentence, then, that may be... Sure.

[00:14:53] Speaker 02:
The may be sentence seems clearly discretionary and it seems to allow the secretary to look at the claim form and determine what the veteran is applying for.

[00:15:02] Speaker 02:
That makes sense.

[00:15:04] Speaker 02:
But if they have to give them the greater benefit of the two, then why doesn't that suggest that in every case they have to look at both?

[00:15:17] Speaker 01:
election described in the third sentence is modifying the discussion of the award, and it's illogical to, under the Doctrine of the Last Antecedent, to read it back to the consideration part, as apparently the veteran is doing here.

[00:15:36] Speaker 01:
That's a more remote word.

[00:15:39] Speaker 01:
In fact, section 3.151A should be ready.

[00:15:44] Speaker 02:
Give me an example of a situation where that third sentence would come into play, that the secretary gets an application and it's unclear what they're applying for, and they would do both calculations, disability benefits in most cases more or

[00:16:00] Speaker 02:
wrong that there are more in most cases than pension benefits.

[00:16:04] Speaker 01:
That's correct.

[00:16:04] Speaker 01:
It's my understanding that's correct.

[00:16:06] Speaker 01:
The compensation, disability compensation would be more.

[00:16:09] Speaker 01:
An example would, to start with an example of when there would be an election, my understanding is that it's possible if

[00:16:17] Speaker 01:
you obtain disability benefits, that it could limit your ability to obtain other benefits, other types of government awarded benefits, and therefore perhaps you would prefer the pension that wouldn't cut into those benefits.

[00:16:34] Speaker 01:
So that would be an example where there could be an election to take the lesser.

[00:16:38] Speaker 01:
But as for when there might have to be a determination of what's being sought here, are two things being sought here, the form has sections that have to do with your income, which would go towards the pension question.

[00:16:53] Speaker 01:
It also has questions about your disability and when did it first start.

[00:16:57] Speaker 01:
manifest and things like that that could potentially implicate a disability service connection question.

[00:17:04] Speaker 01:
So I think that would be a situation where that could come into play.

[00:17:09] Speaker 01:
In this case, in coming through the facts a bit, the board looked at the form

[00:17:16] Speaker 01:
and read the form and applied this discretion that's described in 3.151A.

[00:17:22] Speaker 01:
In fact, Mr. Champagne argued below that VA has a duty to liberally construe the filings of pro-state claimants, including the form and- You don't disagree with that, right?

[00:17:35] Speaker 02:
If you did it more than ambiguous, the VA has a duty probably to look at it under both provisions.

[00:17:42] Speaker 01:
I think that's true and there's a, in fact in this case there was a medical examination after the form was filed and there was some consideration of what the medical evidence was.

[00:17:56] Speaker 01:
When the decision came out in December 1987 it said you've been awarded pension benefits.

[00:18:02] Speaker 01:
An earlier letter said we've got your application for pension and Mr. Champagne never

[00:18:07] Speaker 01:
filed a notice of disagreement or an appeal saying, no, wait, I didn't apply for a pension.

[00:18:13] Speaker 01:
I was actually applying for service connected.

[00:18:15] Speaker 02:
Is this the only regulation that speaks to the possibility of the VA considering a claim to be either compensation or pension or both?

[00:18:26] Speaker 01:
I think this is the only one that I'm aware of.

[00:18:29] Speaker 01:
I think though it helps to read the third sentence about election in conjunction with 38 CFR 3.701A, which talks about entitlement.

[00:18:39] Speaker 01:
It says a person entitled to receive pension or compensation.

[00:18:42] Speaker 01:
under more than one law or by section of a law administered by VA may elect whichever benefit regardless of whether it is the greater or lesser benefit.

[00:18:53] Speaker 01:
So I think the entitlement to receive pension or compensation comes first before the election under that section.

[00:19:00] Speaker 02:
Yeah, I guess this regulation though that we have in front of us today, 3151A, it is

[00:19:08] Speaker 02:
At a minimum, a little confusing.

[00:19:10] Speaker 02:
Maybe a lot confusing.

[00:19:12] Speaker 02:
I see you nodding your head for the record.

[00:19:15] Speaker 02:
So the first sentence, I understand.

[00:19:17] Speaker 02:
The second sentence, I understand.

[00:19:19] Speaker 02:
And then the third sentence, it feels like this movie takes a plot twist.

[00:19:25] Speaker 02:
And I'm trying to understand.

[00:19:27] Speaker 02:
It feels like your interpretation requires us to believe that there's a silent

[00:19:36] Speaker 02:
opening clause to the third sentence, and that silent clause would be something like, and when the VA does elect to run up both the compensation and pension calculation for claimants, comma, the greater benefit will be awarded.

[00:19:53] Speaker 02:
If there is... And so that's how you want us to understand this regulation now.

[00:19:59] Speaker 02:
What I just said isn't actually written in there, and now you have to explain to us

[00:20:05] Speaker 02:
Why is it compelling to think about the regulation in that way?

[00:20:13] Speaker 01:
Well, the process that's laid out in 3.1518 starts with the Veterans Filing Act form with a specific claim.

[00:20:23] Speaker 01:
The VA is undertaking the consideration that may be considered is regulatory language and passive voice like the court considered in Stallworth, Beashe and Seki and concluded it refers to VA.

[00:20:35] Speaker 01:
It doesn't refer to the veteran.

[00:20:37] Speaker 01:
I think the consideration that's then made as described in the second sentence must be

[00:20:53] Speaker 01:
must come to a conclusion that maybe there are both being sought before the third sentence comes along and the greater benefit will be awarded unless the claimant specifically elects the lesser benefit.

[00:21:08] Speaker 01:
One other point is that the

[00:21:11] Speaker 01:
The Veterans Court only relied on its conclusion about the 3.151A being permissive, not mandatory.

[00:21:22] Speaker 01:
It only dealt with the question of discretion.

[00:21:25] Speaker 01:
It didn't go into some of the other issues that the Veterans raising about election in the third Senate.

[00:21:35] Speaker 01:
It wasn't, those points aren't the interpretation that the Veterans Court relied on under 38 U.S.B.

[00:21:42] Speaker 01:
7292A.

[00:21:42] Speaker 02:
Can I just ask you a couple questions about the discussion we had with your friend about whether the claim mattered or not?

[00:21:55] Speaker 02:
Is it your view that if the veteran filed a claim on a form that just said for pension

[00:22:03] Speaker 02:
but clearly identified in the text that they were seeking service-connected disability benefits, that the VA could ignore the request for service connection just because they filed it on a form of pension benefits, or wouldn't they, with the duty to assist, have to interpret it as a claim, at least for both, but clearly tried to discern what the veterans intent was.

[00:22:29] Speaker 01:
There is discretion, I think, and 3.151A is describing that type of discretion to go outside of the title of the form.

[00:22:40] Speaker 01:
Although the first sentence does refer to a specific claim in the form.

[00:22:45] Speaker 02:
I guess what I'm getting at is, if we agreed with your friend

[00:22:49] Speaker 02:
that this wasn't permissive, that it was mandatory, it wouldn't just apply to this one claim form that has either or.

[00:22:57] Speaker 02:
It would apply to every single claim filed by every veteran.

[00:23:01] Speaker 01:
That's my understanding.

[00:23:02] Speaker 01:
It will be is the reading that the veteran wants.

[00:23:08] Speaker 01:
However, my understanding is that will be is

[00:23:13] Speaker 01:
putting it onto the veteran, not the VA, to make the consideration.

[00:23:19] Speaker 01:
That's not an argument that's supported by the language of the regulations, however.

[00:23:25] Speaker 02:
The Veterans Court relied on its own precedent in Stuart, correct?

[00:23:30] Speaker 02:
Right.

[00:23:30] Speaker 02:
It seems that Stuart imposes a limit on the VA's

[00:23:35] Speaker 02:
discretion under 3.151A.

[00:23:37] Speaker 02:
I think in Stewart the court at least suggested that wherever there is evidence in or submitted with the application, which VA could construe as they claim for the other benefit besides the one that it looks like the applicant is most likely applying for, in that circumstance the VA has to go through the analysis of doing both.

[00:23:59] Speaker 02:
Do you agree that that's what Stewart says?

[00:24:01] Speaker 01:
I believe, so I'm not super familiar with the Stewart decision, but yes, I think that Stewart is also saying, yes, you need to consider the contents of the form in the submission.

[00:24:13] Speaker 02:
Well, what is the government's position here?

[00:24:17] Speaker 02:
Should we say that what the regulation means is that whenever there is evidence in or submitted with the application,

[00:24:26] Speaker 02:
then the VA's discretion would be abused if the VA did not consider the application for both pension and disability benefits.

[00:24:37] Speaker 01:
I'm going to make sure I understand.

[00:24:41] Speaker 01:
I think the VA has a great deal of discretion to determine what type of claim is being asserted.

[00:24:49] Speaker 01:
Certainly looking at the evidence that's been submitted, looking at what parts of the form have been filled in and what the statements in the form are.

[00:25:00] Speaker 02:
Let me put it this way.

[00:25:01] Speaker 02:
If the form, whatever form is used, clearly asks for both, does the VA have discretion to say, we're only going to look at pension?

[00:25:11] Speaker 01:
I don't think so.

[00:25:12] Speaker 02:
That would be an abusive discretion, right?

[00:25:14] Speaker 01:
I believe so if it's really clear and... If it's really clear, I think that's easy case.

[00:25:21] Speaker 02:
What if it's unclear, if it's ambiguous, does the VA have discretion to say,

[00:25:26] Speaker 02:
This is not clear, but it's unclear, but we're only going to look at pension, for example.

[00:25:32] Speaker 01:
I don't think so, but it will be a detailed factual finding by the board.

[00:25:38] Speaker 02:
Well, the VA has a duty to assist, right?

[00:25:40] Speaker 02:
So if it's an ambiguous form, it's not discretion for the VA.

[00:25:45] Speaker 02:
They have a duty to assist the veteran in determining what type of benefit

[00:25:50] Speaker 02:
he or she is applying for, right?

[00:25:52] Speaker 02:
So if they don't do that, the veteran can challenge that as a violation of the duty to assist.

[00:25:58] Speaker 02:
They can say the VA has misconstrued the form.

[00:26:01] Speaker 02:
And those are factual determinations that are reviewed by the board and then reviewable by the Veterans Court for clear error.

[00:26:08] Speaker 02:
not by us, of course.

[00:26:09] Speaker 02:
But there's a way for the veteran to say, you got it wrong, I didn't mean to apply for pension benefits, I meant to apply for both, or I meant to apply for service connected disability benefits.

[00:26:22] Speaker 02:
There definitely is, and certainly... I assume that's what generally happens in these cases, is the VA looks at the firearm and tries to determine what they're applying for and processes.

[00:26:34] Speaker 01:
And in this case, sent a letter saying, we've received your application for pension benefits.

[00:26:39] Speaker 01:
And certainly there were many opportunities, including at the medical examination for Mr. Champagne to explain that he was not seeking pension benefits if that were in fact the case.

[00:26:50] Speaker 01:
And I'll just note that the argument that Mr. Champagne raises about fact-finding, it isn't supported.

[00:26:58] Speaker 01:
The Veterans Court simply said it need not determine whether the agency of original

[00:27:03] Speaker 01:
jurisdiction made a finding, a factual finding that the September 1987 claim encompassed a claim for disability benefits, because the board would not be bound by that finding.

[00:27:13] Speaker 01:
So there was no fact finding.

[00:27:17] Speaker 01:
In fact, I think you- If R.O.

[00:27:19] Speaker 02:
had done a very elaborate fact-based analysis on whether his claim, and included a claim for both compensation and pension, would be okay?

[00:27:33] Speaker 02:
the board just rendered its own individual independent analysis and ignored the ROs.

[00:27:43] Speaker 01:
Yes, because the court concluded in Disabled American Veterans v. Secretary of Veterans Affairs at 419-1317 that the board is the ultimate decision-making authority on claims under 38 U.S.C.

[00:28:01] Speaker 01:
511A and 7104A.

[00:28:04] Speaker 01:
The board would be acting within its authority to do so.

[00:28:09] Speaker 01:
And finally, I'm running out of time, but I'll just note that we believe that the CDD claim that supposedly was raised in the 1987 application is not currently pending because a June 2002 regional office...

[00:28:35] Speaker 01:
And since I'm out of time almost, I will simply ask the court to just affirm the decision of the Veterans Court.

[00:28:44] Speaker 01:
Thank you.

[00:28:44] Speaker 01:
Okay.

[00:28:44] Speaker 02:
Let's give it three minutes.

[00:28:51] Speaker 00:
Thank you.

[00:28:52] Speaker 00:
I'd just like to remind the court that this is a proclamant system, and when a veteran

[00:28:57] Speaker 00:
reads a regulation, they read it as a layperson and then they expect the plain language to rule.

[00:29:04] Speaker 00:
The consequences which flow from potentially construing every application as pension and service connection are of no consequence to a veteran who reads a regulation that says it's going to be considered as one for both and then I get to choose which benefit that I want.

[00:29:21] Speaker 00:
And that's what it boils down here to, is that he filled out a form asking for both, the regulation says that both are going to be adjudicated and that he'll be given notice about which one is the greater benefit, and then he makes a specific election as to what he gets.

[00:29:38] Speaker 00:
That's really where we end up in this case, is that it's what the veteran can expect from the regulations the VA puts into place and is bound by.

[00:29:47] Speaker 00:
Not what lawyers debate about how language can be construed.

[00:29:52] Speaker 00:
It's very plain in the reg what the VA is going to do.

[00:29:55] Speaker 00:
That is, they're going to let them know what the benefit that's greater is, and then they're going to give the veteran the opportunity to make a decision about that.

[00:30:03] Speaker 00:
This is an earlier effective date case.

[00:30:07] Speaker 00:
The veteran has been waiting for over three decades for a disability compensation claim to be adjudicated by the VA, and he has consistently stated that throughout his notices.

[00:30:18] Speaker 00:
Still waiting for the compensation claim to be decided that I filed 1987.

[00:30:22] Speaker 00:
He said it many times throughout these proceedings, yet it has not been done.

[00:30:26] Speaker 00:
It is still a pending claim based on the pending claims doctrine because it was never adjudicated by the VA.

[00:30:31] Speaker 00:
So today we would ask that the court reverse the veteran's court decision and allow the board to use the correct interpretation of the regulation to determine whether or not the greater benefit is pension or service connection and give that option to the veteran so that then he can decide based on the VA's own regulation that it put into place consistent with this pro-claimant system.

[00:30:55] Speaker 00:
And that is all I have unless your honors have any more questions for me.

[00:31:00] Speaker 00:
Thank you very much.

[00:31:01] Speaker 02:
Case is committed.