[00:00:00] Speaker 01: The first case to be argued this morning is docket number 22-2293, Cooksey versus McDonough. [00:00:08] Speaker 01: Mr. DeHawkes. [00:00:10] Speaker 00: Good morning, Your Honor. [00:00:11] Speaker 01: Please begin. [00:00:12] Speaker 00: Thank you. [00:00:13] Speaker 00: May I please the court, on behalf of Mr. Cooksey, I thank this court for the opportunity to present his appeal. [00:00:20] Speaker 00: Mr. Cooksey asked this court to reinforce its holding in Scott. [00:00:25] Speaker 00: that directs the Veterans Court to provide judicial reviews, closely related theories, even when raised for the first time to that court. [00:00:34] Speaker 03: In this case in particular, could it be that we really have an application of law to facts? [00:00:39] Speaker 00: I don't believe so, Your Honor. [00:00:41] Speaker 03: OK, so explain to me why. [00:00:42] Speaker 00: And I think if we look to this court's decision in Bozeman, and although we didn't discuss it in great detail in the brief, the Secretary did raise it, and I do think that the [00:00:53] Speaker 00: The underlying issue in Bozeman and here are the same. [00:00:57] Speaker 00: What we have is a legal argument or a legal argument issue that was raised to the board that said both by the veteran and the court's JMR order, and I think that the JMR order is really critical in this case, but basically it ordered the board to consider whether the failure of the agency to follow its M21 procedures manual is evidence that rebuts the presumption of regularity. [00:01:23] Speaker 00: And so what Scott teaches us, particularly where it talks about this court's precedent in Roberson, Robinson, and Cromer, and I'm looking on page 1381 of that decision, it says, these cases thus require the Veterans Court to look at all the evidence in the record to determine whether it supports related claims for service-connected disability, here the issue being evidence to rebut the presumption of regularity. [00:01:51] Speaker 00: even though the specific claim was not raised by the veteran. [00:01:54] Speaker 00: And so this case fits squarely within Scott and later Bozeman where the primary issue presented was the M21 requires the VA to do something and the board was required by its statutes, by case law, to review the entire record searching, liberally construing everything in a way that they would be required to address [00:02:21] Speaker 01: For our jurisdictional purposes, could you in one sentence define what is the question of law that is permissible for us to review? [00:02:36] Speaker 00: Yes, Your Honor. [00:02:37] Speaker 00: And again, I go back to Bozeman because, again, I think that that case is really similar to what we have here. [00:02:44] Speaker 01: I guess one way to define the issue is what is the correct [00:02:52] Speaker 01: legal interpretation of Scott. [00:02:54] Speaker 00: Exactly, Your Honor. [00:02:55] Speaker 01: And Scott says there are certain things that the Veterans Court should not use issue exhaustion for. [00:03:06] Speaker 01: But there's other things that the Veterans Court may use issue exhaustion for. [00:03:10] Speaker 01: And now we're trying to figure out which bucket does your legal argument fall within. [00:03:17] Speaker 01: Is that a fair way to summarize things? [00:03:20] Speaker 00: Yes, Your Honor, and that's exactly how we briefed it in our briefing. [00:03:24] Speaker 00: And I would add to that that procedural errors Scott holds that they absolutely must be subject to the balancing test in all cases. [00:03:36] Speaker 00: But, and then on the other side is the closely related theories or issues where the way Scott's, the words and the holding in Scott is that the veteran's interest is always best served [00:03:49] Speaker 00: in considering issues that are closely related to the one presented. [00:03:53] Speaker 01: Scott goes a little farther than that though. [00:03:56] Speaker 01: It's closely related issues to whether there is in fact a service-connected claim for benefits. [00:04:06] Speaker 01: It appears to me that Scott is trying to draw a line between issues of substance and issues of procedure. [00:04:16] Speaker 01: Scott is trying to say, if there is a closely related claim that's not yet articulated, that is closely related to the articulated claim for benefits, then maybe that's not the sort of thing that issue exhaustion should be employed for. [00:04:33] Speaker 01: But if it's a procedural argument, and maybe that's what we have here, then of course the Veterans Court is entitled to consider issue exhaustion. [00:04:43] Speaker 01: So what is wrong with my understanding of Scott? [00:04:47] Speaker 00: Well, I think that it certainly covers claims for compensation benefits and kind of looking at the scope of that claim or certain avenues of substantiating that claim. [00:05:03] Speaker 00: But here, the issue is more about, yes, it's wrapped up in a procedure of whether or not the VA sent the [00:05:15] Speaker 00: the statement of the case. [00:05:17] Speaker 00: But I would just add that the holding in Scott says there's a significant difference between considering closely-ridden theories and evidence that could support a veteran's claim and considering procedural issues that are collateral to the merits. [00:05:32] Speaker 00: And so that narrow reading of Scott, I think, one, ignores and evidence. [00:05:38] Speaker 00: And number two, it needs to [00:05:42] Speaker 00: be a bit more flexible in looking at non-service connection claim issues that are presented to the board. [00:05:50] Speaker 03: Do you agree that your lack of signature argument is really at heart a procedural argument? [00:05:55] Speaker 00: I do not, Your Honor. [00:05:57] Speaker 00: The way that I perceive that is evidence in the record that the VA did not follow its procedure, or did not follow the M21, and that evidence [00:06:12] Speaker 00: rebuts the presumption, or is argued that it rebuts the presumption. [00:06:15] Speaker 00: So the overall issue that was presented to the board was, you guys didn't, yes, you're presumed to have followed your procedures, but we have evidence that you didn't. [00:06:27] Speaker 00: And that rebuts the presumption. [00:06:28] Speaker 00: And again, it is wrapped up in a procedure. [00:06:34] Speaker 00: But I think if you segregate out exactly what the issue is that was presented to the board, the issue [00:06:42] Speaker 00: The Scots doctrine says that the board has to look at the entire record for closely related theories and evidence to the one that was presented. [00:06:53] Speaker 00: And the issue that was presented was that we've rebutted the presumption of regularity based on this evidence. [00:07:02] Speaker 00: And there's closely related evidence. [00:07:04] Speaker 00: You turn the page of the M21, and there's additional evidence. [00:07:07] Speaker 00: You go to the end of the statement of the case, there's no signature. [00:07:12] Speaker 00: and we think that it's the evidence that this qualifies as closely related evidence that the presumption of regularity had not been followed. [00:07:20] Speaker 01: Is there a reason why you didn't raise the signature issue to the board and you didn't argue this until you got to the Veterans Court? [00:07:34] Speaker 00: I don't know why it wasn't. [00:07:35] Speaker 00: The record [00:07:36] Speaker 00: doesn't have an answer, and the appellant at the Veterans Court didn't provide an answer. [00:07:44] Speaker 00: But my response to that, Your Honor, is that, again, the law requires the board to thoroughly review the record, [00:07:52] Speaker 00: route to thoroughly review the record seventy one or forty two adequately explain all of its findings of material fact and wall and i'm implying the board needs to come up some issues i'm trying to understand no your honor noted but again if it's closely related evidence to the issue that's presented you know in for instance you know when we look at like uh... stop sites to take specifically the kromer [00:08:16] Speaker 00: in robertson where the veteran requested the maximum rate or at least it was presumed i don't even think that the record there ever said i want the maximum rate but he asked for a higher rating and the court said that combined with evidence of unemployability required the board to consider a td are you ready likewise in robinson and hopefully i'm not mixing up robertson robinson uh... the veteran [00:08:42] Speaker 00: said I want direct service connection. [00:08:45] Speaker 03: Which argument do you consider to be closely related to your argument regarding the lack of signature? [00:08:53] Speaker 00: Your Honor, it's closely related theories or evidence. [00:08:57] Speaker 00: The additional evidence that the statement of the case was not signed [00:09:04] Speaker 00: is closely related to the global argument that the VA's failure to follow this M21 rebuts the presumption of regularity. [00:09:19] Speaker 00: Any evidence that shows they didn't follow the M21 is closely related to the legal argument presented to rebut the presumption of regularity. [00:09:33] Speaker 01: If this is not a procedural argument, what would you consider to be a procedural argument? [00:09:40] Speaker 00: I think, looking at Scott, clearly a process that the veteran... I read Scott, Your Honor, particularly because here he objected to the board's failure to reschedule his hearing. [00:09:56] Speaker 00: And I think that those kinds of situations, as Scott said, those are best addressed at the earliest possible stage. [00:10:04] Speaker 00: So he knows right away. [00:10:05] Speaker 00: I requested a hearing rescheduling. [00:10:07] Speaker 00: The board ignored it. [00:10:08] Speaker 00: And then he doesn't mention it again after one remand from the court and then going back. [00:10:15] Speaker 00: So I think that a procedural argument is the physical procedure where the veteran is or the claimant is interacting with the VA. [00:10:26] Speaker 01: the veteran here doesn't have any control over just one moment is he into his rebuttal right now okay uh... i'm sorry you're in your bottle you want to save it uh... yesterday i will save it okay thank you here from the government good morning may please the court first i think the [00:10:53] Speaker 02: The briefs here and the discussion this morning has demonstrated that this is, in fact, about the application that the Veterans Court made of the issue of preclusion questions, the application of law to facts of this case. [00:11:06] Speaker 02: And the case law of this court explicitly requires the Veterans Court to weigh the interests at issue in when issue of preclusion could be relevant, and that weighing [00:11:19] Speaker 02: is not subject to this court's review. [00:11:21] Speaker 01: Well, what if this case is about trying to understand the correct interpretation of Scott versus McDonald? [00:11:27] Speaker 01: Would that be something that's within our jurisdiction to consider? [00:11:31] Speaker 02: Potentially, Your Honor. [00:11:32] Speaker 02: So I think, first of all, looking at the Veterans Court's decision, there is no, and the petitioner here has pointed to no inaccurate explanation of the standards [00:11:47] Speaker 02: that the court is required to present, in fact, a court? [00:11:50] Speaker 01: Well, I understand the appellant saying that the Veterans Court incorrectly understood Scott, because in Scott, allegedly, it says any issue that's closely related to issues that were argued at the board level may be raised at the Veterans Court level and must be considered by the Veterans Court. [00:12:10] Speaker 01: And if that's the correct understanding of Scott, then there was an illegal error committed by the Veterans Court in applying the issue to Scott. [00:12:16] Speaker 01: So to that extent, [00:12:18] Speaker 01: Would that not be a question of law for us to decide that we have jurisdiction to think about? [00:12:24] Speaker 02: Your Honor, I think if the issue is, was this a situation where the Veterans Court was not even able to consider the question of issue preclusion, I think that tips over into potentially a question of pure law. [00:12:42] Speaker 02: We certainly disagree with the reading of Scott that has been presented by [00:12:47] Speaker 02: Mr. Cooksey in this case. [00:12:50] Speaker 02: First, this is, I think, a quintessential procedural question that was set out in Scott as one that is ripe for the determination of issue preclusion. [00:13:04] Speaker 02: The issues here are about whether an SSU was actually sent and about whether the veteran timely submitted his appeal. [00:13:14] Speaker 02: Those are the circumstances in which Scott says the Veterans Court should be considering issue of reclusion and weighing those interests. [00:13:22] Speaker 02: I would point this court in particular to the Dickens case, which applied Scott in a similar instance involving in that case the duty to assist and whether raising an issue that the veteran believed [00:13:41] Speaker 02: should have been encompassed in the duty to assist several appeals later on, should be entitled to issue a preclusion. [00:13:50] Speaker 02: And the court upheld the Veterans Court's application of issue of preclusion in that case. [00:13:57] Speaker 02: I briefly want to address Mr. Cooksey's understanding of Scott in the context of evidence being the relevant question. [00:14:10] Speaker 02: And I think that parses out too much exactly what the court said with respect to the types of claims. [00:14:17] Speaker 02: And the line that is specifically relevant is that there is a significant difference between considering closely related theories and evidence that could support a veteran's claim for disability benefits and considering procedural issues that are collateral to the merits. [00:14:31] Speaker 02: And I think the important phrase there. [00:14:34] Speaker 02: What are you reading from? [00:14:34] Speaker 02: I'm reading from Scott, Your Honor. [00:14:36] Speaker 02: And this is the 1381. [00:14:41] Speaker 02: And the important section of that first clause is that could support a veteran's claim for disability benefits. [00:14:52] Speaker 02: So the court was talking there about theories and evidence in support, in direct support of a claim as opposed to procedural issues that are collateral. [00:15:01] Speaker 02: So whether it's evidence, whether it's theories, if they are related to procedural issues, Scott says that the court should, the veteran's court should be considering issue preclusion. [00:15:10] Speaker 02: And then finally, I would just point the court to the Veterans Court's discussion in this case in its issue preclusion determination on Appendix 8, which thoroughly discusses all of the opportunities that Mr. Cooksey had to raise this issue and explains why the agency's interests outweigh the veterans' interests in this case. [00:15:34] Speaker 02: Unless the court has any further issues, excuse me, any questions. [00:15:38] Speaker 03: I have one final question. [00:15:38] Speaker 03: You said that there was an overarching kind of, I don't know if I'll describe it as procedural, but procedural argument made with respect to M21, and that it somehow also encompassed this signature issue they're now raising. [00:15:51] Speaker 03: Can you just respond to that? [00:15:53] Speaker 02: Certainly, Your Honor. [00:15:54] Speaker 02: So first, the M21 manual, I'll start by saying it's not binding on the board. [00:16:03] Speaker 02: So the premise I think that Mr. Cooksey's argument is based on is akin to what this court decided in Scott earlier this year where the board is required to consider regulations that are applicable or potentially applicable. [00:16:21] Speaker 02: There is no similar binding requirement on the board to consider the manual and particularly elements of the manual that have never been explicitly raised. [00:16:31] Speaker 02: I would also note that the remand order, the request for remand in this case, did not reference the manual at all, unless I'm missing it. [00:16:43] Speaker 02: I think it identified the question of whether or not the lack of the attorney's address was significant without citing the manual. [00:16:53] Speaker 02: And that is what the court, excuse me, the board addressed on remand. [00:16:59] Speaker 02: And then finally, as an overarching point, I would say that a citation to the board about a very specific issue, as we had in this case, the citation about whether the attorney's address had to be on there, should not, in essentially every case, therefore require the board to comb through the entirety of the manual to figure out whether there is something else that maybe could apply in this case. [00:17:24] Speaker 02: That is the quintessential procedural issue that should be [00:17:28] Speaker 02: fall within the balance of issue of conclusion. [00:17:34] Speaker 02: With that, we would ask that the court consider dismissing the case for lack of jurisdiction or in the alternative, affirm the Board's, excuse me, affirm the Veterans Court's application of issue of conclusion and affirm. [00:17:47] Speaker 02: Thank you. [00:17:48] Speaker 01: Okay, thank you. [00:17:50] Speaker 01: Back to Mr. DeHawkes. [00:17:52] Speaker 01: Let's give him his full three minutes. [00:17:56] Speaker 00: Thank you, Your Honor. [00:17:56] Speaker 00: I'll start with the [00:17:59] Speaker 00: I will answer the question about what is a procedural issue, but I want to start with the M21 and direct the court to NOVA 981, F3, 1360. [00:18:06] Speaker 00: We cite it in our brief. [00:18:09] Speaker 00: It says, although the board is not bound by it, quote in here, VBA staff making the initial benefits decision are bound by the policies in the manual. [00:18:17] Speaker 00: The JMR directly cited to the M21, appendix page 125. [00:18:23] Speaker 00: through 127. [00:18:24] Speaker 00: And in his brief, the veteran cited the M21 by name, and that's appendix page 130. [00:18:33] Speaker 00: So the general premise, again, is that the M21 is obligatory on the AOJ when they issue the statement of the case. [00:18:41] Speaker 00: And they have to follow those. [00:18:43] Speaker 00: With respect to what is a procedural issue, I think Scott really, although it's not [00:18:51] Speaker 00: all encompassing, it talks about issues that are collateral to the merits. [00:18:55] Speaker 00: And here we have to remember that this is not a claim for a specific benefit necessarily. [00:19:01] Speaker 00: This is a challenge or a dispute about whether an appeal was timely filed. [00:19:06] Speaker 00: And so the ruling in Scott needs to be more flexible to be able to encompass not only a claim for service connection, but specific issues of here timeliness [00:19:18] Speaker 00: or veteran status or any number of other specific legal issues that are raised during the pendency of a claim, which, as this court is well aware, can drag on for years and years and years. [00:19:31] Speaker 00: So whether an appeal is timely depends upon when the decision was made. [00:19:37] Speaker 00: when it was issued. [00:19:38] Speaker 00: And if that decision was not issued because the VA did not follow its procedures manual, because the presumption of regularity doesn't apply, then the evidence that the signature is absent when it's required by the M21 is closely related to the issue which was presented both in the JMR order from the court and to the brief to the board. [00:20:06] Speaker 00: And going back to Scott again, and I'm quoting here, it's procedural issues. [00:20:12] Speaker 00: This is not always the case. [00:20:13] Speaker 00: A veteran's interest may be best served by prompt resolution. [00:20:17] Speaker 00: And rather than further remands to cure procedural errors, that at the end of the day may be irrelevant to the final resolution. [00:20:25] Speaker 00: This is not irrelevant. [00:20:26] Speaker 00: Whether the SOC was sent, whether the presumption of regularity applies, is the crux of the entire case. [00:20:34] Speaker 00: And any evidence that is closely related to rebutting that presumption, the board is required to address it in this decision. [00:20:45] Speaker 00: And the Veterans Court is required to consider it, per Scott and later Bozeman. [00:20:52] Speaker 00: We ask that the court vacate the court's decision and order them to consider his closely related evidence and theories. [00:21:01] Speaker 00: Thank you. [00:21:01] Speaker 00: Thank you. [00:21:02] Speaker 00: Case is submitted.