[00:00:00] Speaker 03:
And that leads to our final case this morning, number 231182, Garrett versus McDonough.

[00:00:59] Speaker 03:
Please, Mr. Luck.

[00:01:05] Speaker 00:
Thank you, Your Honors.

[00:01:06] Speaker 00:
Good morning, and may it please the Court.

[00:01:09] Speaker 00:
Adam Luck, appearing on behalf of Appellant Runnett Jr.

[00:01:13] Speaker 00:
Garrett.

[00:01:14] Speaker 00:
The central issue in this case is when a favorable finding of fact made by a VA adjudicator actually becomes binding on subsequent VA adjudicators under 38 USC 5104A and 38 CFR 3.104C.

[00:01:29] Speaker 00:
So suppose that the remand goes forward to the board, right?

[00:01:37] Speaker 03:
And do you have an argument before the board that the Q inquiry is improper at that point?

[00:01:44] Speaker 00:
We have argued before the board already, Your Honor, when this case was on its way up, that the VA has already made three binding favorable findings of fact that establish entitlement to service connection.

[00:01:56] Speaker 03:
That's a different question.

[00:01:58] Speaker 03:
Do you have an argument, if we hold that a remand is proper, let's assume we address the merits, do you have an argument before the board that the Q issue is forfeited or gone or not before them or not on ground for ruling in favor of the VA?

[00:02:23] Speaker 00:
Yes, Your Honor.

[00:02:23] Speaker 00:
So in this case, under Section 5104A or 3.104C, those binding favorable findings are already bound.

[00:02:32] Speaker 00:
And it's only when additional evidence is added to the record that VA may readdress those binding favorable findings and determine whether they have been rebutted by evidence

[00:02:42] Speaker 00:
of clear and unmistakable evidence, rather, that establishes a clear and unmistakable error in that original finding.

[00:02:49] Speaker 02:
Can't they look for clear and unmistakable error based on the record as it exists?

[00:02:56] Speaker 00:
Well, Your Honor, that would actually have a chilling effect for appeals going forward.

[00:03:02] Speaker 00:
For one thing, that's not how the Board understood

[00:03:06] Speaker 00:
its burden under 3.104C or 5104A.

[00:03:09] Speaker 00:
We know that from the board's decision where it blindly accepted the two favorable findings of fact of in-service

[00:03:16] Speaker 00:
and current disability, and it didn't address those, whether they were based on clear and unmistakable error or not.

[00:03:21] Speaker 00:
It just accepted those as binding automatically.

[00:03:24] Speaker 00:
There should be no reason why the favorable nexus finding should be any different.

[00:03:28] Speaker 02:
Now, if it's contradicted in the very findings, the document with the findings that you like, isn't it?

[00:03:38] Speaker 00:
Well, the contradiction is not controlled by Section 3.104C or 5104A.

[00:03:44] Speaker 00:
The favorable findings are.

[00:03:46] Speaker 00:
And those favorable findings are what is controlling going forward.

[00:03:50] Speaker 00:
Those are what are binding on the board moving forward.

[00:03:52] Speaker 01:
But don't you think that makes this case a little different from your normal case, where we're just dealing with a decision or something from the RO that exclusively consists of favorable findings?

[00:04:05] Speaker 01:
Isn't this case different?

[00:04:06] Speaker 01:
This is a very unique case, Your Honor.

[00:04:08] Speaker 01:
And so I guess, what would prohibit the, where is there support for the notion that the Veterans Court was prohibited from remanding this case under the circumstances of this case, which you acknowledge are a little odd.

[00:04:24] Speaker 00:
Absolutely, Your Honor, and that's because the regional office in the July 2019 made the three favorable findings that established entitlement to service connection.

[00:04:31] Speaker 03:
Okay, but that's just saying that the issue which we just talked about, that you can present

[00:04:38] Speaker 03:
to the board on remand is going to survive the remand.

[00:04:41] Speaker 03:
So I don't see how under those circumstances you have a final judgment that's reviewable by us.

[00:04:47] Speaker 03:
The same issue will survive the remand.

[00:04:50] Speaker 03:
You can make it.

[00:04:52] Speaker 00:
Well, I will direct this Court's attention to its recent decision from just a few weeks ago in Chavez v. McDonough.

[00:04:57] Speaker 03:
I'm familiar with it, but that's different.

[00:05:00] Speaker 03:
There was an argument there that there was a right to a decision without a remand.

[00:05:05] Speaker 00:
Mr. Garrett has the exact same right to a decision without a remand.

[00:05:09] Speaker 03:
Where does that come from?

[00:05:10] Speaker 00:
because he has already satisfied entitlement to service connection.

[00:05:14] Speaker 00:
This isn't just Mr. Garrett's argument.

[00:05:15] Speaker 00:
The secretary has conceded that on page 11 of his brief.

[00:05:19] Speaker 03:
I don't understand what you're talking about.

[00:05:22] Speaker 03:
We have an issue.

[00:05:24] Speaker 03:
I understand what the issue is.

[00:05:25] Speaker 03:
You're saying that they can't find Q at this point, and you can make that argument on the remand of the board.

[00:05:34] Speaker 03:
What is it in the statute or the regulations that prohibits a remand

[00:05:40] Speaker 00:
for the board to consider that issue.

[00:06:03] Speaker 01:
So it's a forfeiture argument, like they should have made this earlier and they can't make it again.

[00:06:07] Speaker 01:
They had their chance before the board and the CABC.

[00:06:10] Speaker 00:
The VA has not met its burden under 3.104C or 5104A.

[00:06:15] Speaker 03:
So that same argument exists on the remand, doesn't it?

[00:06:21] Speaker 00:
The remand from the Veterans Court provides no benefit to Mr. Garrett because he is already entitled to serve connection.

[00:06:26] Speaker 03:
That's a different question.

[00:06:26] Speaker 03:
The remand may be unnecessary, but that doesn't create finality.

[00:06:32] Speaker 00:
Section 38 U.S.C.

[00:06:33] Speaker 00:
1110 provides that the government will pay compensation when the veteran is entitled to service connection.

[00:06:41] Speaker 00:
It is not discretionary.

[00:06:42] Speaker 00:
And because Mr. Garrett is entitled to service connection, 38 U.S.C.

[00:06:46] Speaker 00:
1110 mandates compensation.

[00:06:51] Speaker 03:
Well, that's an argument for compensation.

[00:06:53] Speaker 03:
It's not an argument against a remand.

[00:06:56] Speaker 00:
I think a remand in this case, Your Honor,

[00:06:59] Speaker 00:
merely changes the issue on appeal from whether Mr. Garrett is entitled to benefits, which he already is.

[00:07:11] Speaker 00:
He already is service-connected.

[00:07:13] Speaker 00:
He has established the three favorable findings necessary.

[00:07:16] Speaker 00:
The Barron's Court's remand changes that inquiry to whether he remains entitled to benefits.

[00:07:24] Speaker 00:
because right now those favorable findings remain binding the VA has not met its burden.

[00:07:31] Speaker 02:
No one has ever analyzed, I don't think, whether there is clearly not a mistake or error to rebut the favorable finding.

[00:07:41] Speaker 02:
that you find in the RRO document.

[00:07:44] Speaker 02:
Has anybody done that analysis yet?

[00:07:46] Speaker 00:
That's precisely Mr. Garrett's point, Your Honor, is that it's VA's burden to do so in order to rebut a finding that is already rebinding it.

[00:07:54] Speaker 02:
On what basis would we say that there was no discretion to send it back to have that analysis undertaken?

[00:08:05] Speaker 00:
Well, two points, Your Honor, because

[00:08:08] Speaker 00:
Again, Mr. Garrett, I'm going to sound like a broken record here, Mr. Garrett's already entitled to benefits.

[00:08:13] Speaker 00:
That's just to determine.

[00:08:16] Speaker 02:
I think you're misreading the regulation.

[00:08:19] Speaker 02:
It says the finding is binding on all future adjudicators

[00:08:25] Speaker 02:
Unless it's rebutted and essentially shown to be clearly mistaken error, isn't that what it says?

[00:08:31] Speaker 00:
That is what it says, and that is VA's burden, and VA has not satisfied its burden, so it remains binding.

[00:08:37] Speaker 00:
And this understanding that it is an overt act, an affirmative finding by VA is what is required in order to rebut a finding.

[00:08:45] Speaker 00:
So again, the central issue in this case is when these findings actually become binding, it's Mr. Garrett's position that they become binding the instant they are made, and they are only no longer binding

[00:08:54] Speaker 00:
once V.A.

[00:08:55] Speaker 00:
satisfies its burden by showing clear and unmistakable evidence that establishes it.

[00:09:01] Speaker 02:
But when you say they become immediately binding, I'm hearing you suggest, but help me if I'm wrong, time stops at that point and the V.A.

[00:09:11] Speaker 02:
can't rebut because they're already bound by the earlier finding.

[00:09:14] Speaker 02:
That can't be what you're saying.

[00:09:16] Speaker 00:
It just means it has not rebutted them yet, Your Honor.

[00:09:19] Speaker 00:
So in this case, it has made favorable findings.

[00:09:23] Speaker 00:
And the unless portion of that statute and that regulation has not been triggered.

[00:09:27] Speaker 02:
And now there's a remand to allow that to be triggered, at which you have your procedural and substantive argument.

[00:09:35] Speaker 00:
Well, that remand is adverse to Mr. Garrett because

[00:09:38] Speaker 00:
He is already entitled to benefits.

[00:09:40] Speaker 02:
I agree it's adverse to him.

[00:09:42] Speaker 02:
So maybe you had a final error, but that doesn't help you on the merits, does it?

[00:09:47] Speaker 01:
I'm just trying to understand.

[00:09:48] Speaker 01:
Is your argument on the merits purely a process argument that they had their chance before the BVA?

[00:09:54] Speaker 01:
These favorable findings came out of the RL.

[00:09:57] Speaker 01:
They had the chance at the BVA to challenge them.

[00:09:59] Speaker 01:
They had it under CUE.

[00:10:00] Speaker 01:
They had a chance at the court of veterans' claims.

[00:10:03] Speaker 01:
And their failure to challenge that constitutes a waiver.

[00:10:07] Speaker 01:
So they can't get a second bite at the apple based on a remand.

[00:10:11] Speaker 01:
Is that your argument?

[00:10:12] Speaker 00:
Yes, Your Honor.

[00:10:13] Speaker 00:
3.104C creates a binary system for favorable findings.

[00:10:20] Speaker 00:
That binary system is one in which the finding is made and binds VA adjudicators and then

[00:10:26] Speaker 00:
If there is a showing by VA, VA meets its burden and rebuffs that finding, it's not binding.

[00:10:33] Speaker 00:
If VA does not, it remains binding.

[00:10:35] Speaker 01:
But you're saying that they waived their right.

[00:10:39] Speaker 01:
You're not saying, there's been no dispositive resolution of whether or not they met the burden.

[00:10:47] Speaker 01:
You're saying they forfeited the opportunity.

[00:10:49] Speaker 00:
Correct.

[00:10:50] Speaker 00:
And I would inquire, let's say on remand, the board never addresses it.

[00:10:55] Speaker 00:
We go back to court, we go back to the board, back to court, back to court.

[00:10:58] Speaker 00:
And the board just never addresses it.

[00:11:00] Speaker 00:
Does that, that places Mr. Garrett in this limbo where he has satisfied all elements of service connection and yet cannot get granted service connection because of more than the rest of it.

[00:11:11] Speaker 00:
I beg your pardon?

[00:11:12] Speaker 00:
You can make that argument on the remit, right?

[00:11:15] Speaker 00:
True, Your Honor, but again, Mr. Garrett is entitled to benefits now.

[00:11:18] Speaker 00:
The remand... Why?

[00:11:21] Speaker 03:
What's the argument as to why the remand to consider this issue is improper?

[00:11:28] Speaker 00:
His argument is that he is entitled to benefits without a remand.

[00:11:32] Speaker 00:
Why?

[00:11:32] Speaker 00:
Because he has already satisfied the elements necessary for service connection, Your Honor, in July 2019.

[00:11:39] Speaker 00:
That's an argument that can be made in every case.

[00:11:42] Speaker 00:
Well, these are favorable findings that are binding on the board.

[00:11:45] Speaker 00:
It can't be made in every case.

[00:11:46] Speaker 00:
Because again, to Your Honor's point, this is a unique case in which there are three binding favorable findings that satisfy all three elements necessary for service connection.

[00:11:54] Speaker 00:
We don't see that in every case.

[00:11:56] Speaker 00:
This is a unique case.

[00:11:58] Speaker 00:
But it's the interpretation of 3.104C and 5104A that require those favorable findings to remain binding unless they have been rebutted.

[00:12:07] Speaker 00:
And here they have not been rebutted.

[00:12:09] Speaker 03:
So that binary system... That to me is how your argument just wipes out the finality rule.

[00:12:13] Speaker 03:
There's never a case in which there's going to be a lack of finality.

[00:12:20] Speaker 03:
You can argue in any case that you're entitled to benefits now, so the lead and the end is improper.

[00:12:27] Speaker 00:
No, Your Honor, because in other cases there are factual items that need to be addressed.

[00:12:31] Speaker 00:
Whether a veteran was exposed to Agent Orange, for example, you know, with boots on the ground or within the presumptive areas, something like that.

[00:12:40] Speaker 00:
There's not that in this case.

[00:12:41] Speaker 00:
What is in this case are three binding favorable findings.

[00:12:44] Speaker 00:
So there is not that in this case.

[00:12:45] Speaker 01:
Except there are other findings in this case that go exactly the other way.

[00:12:48] Speaker 01:
That's also in the record part of the evidence, right?

[00:12:51] Speaker 00:
And those findings are not binding on any future unicator.

[00:12:54] Speaker 00:
Only the favorable ones are.

[00:12:55] Speaker 03:
That's the issue.

[00:12:58] Speaker 00:
Well, exactly, Your Honor, and that's why he is entitled now.

[00:13:00] Speaker 00:
Mr. Garrett has satisfied those elements necessary for service connection.

[00:13:06] Speaker 00:
And again, under that binary system, it either is rebutted or is not, and here it has not been rebutted.

[00:13:13] Speaker 02:
Where did you argue that the VA waived its opportunity to show clear, non-mistakable error?

[00:13:19] Speaker 00:
Yes, Your Honor, they had the bite of the apple.

[00:13:21] Speaker 00:
But where did you argue that there's a waiver or forfeiture?

[00:13:28] Speaker 00:
brief to the Veterans Court, we argued that he has already satisfied the elements necessary and the VA has waived the opportunity to show clear and unmistakable error.

[00:13:40] Speaker 00:
I don't believe so, Your Honor.

[00:13:41] Speaker 00:
We've opposed our arguments to this Court as the Board's, excuse me, the Veterans Court's error in satisfying or interpreting through people.

[00:13:52] Speaker 02:
We don't think that the Veterans Court had discretion to remand, but if there is a remand, you've not said

[00:13:58] Speaker 02:
On that remand, the VA has further forfeited its opportunity to be heard.

[00:14:03] Speaker 02:
Have you?

[00:14:04] Speaker 00:
I don't think there's discretion to remand, Your Honor, because of your status.

[00:14:06] Speaker 00:
I know that.

[00:14:07] Speaker 00:
I told you it was going to sound like a broken record.

[00:14:09] Speaker 02:
If we disagree, have you made a secondary argument that even on a remand, the VA has no opportunity to show a clear and unmistakable error?

[00:14:20] Speaker 00:
not in those expressed terms, Your Honor, but the Veterans Court often cannot, has repeatedly held, I should say, that it cannot disturb factual findings favorable to the veteran.

[00:14:33] Speaker 00:
So this does fall in, again, a very unique case, Your Honor, in which the three favorable findings, it dictates when they become binding or not.

[00:14:44] Speaker 00:
And it's Mr. Garrett's position that they have not yet become binding.

[00:14:49] Speaker 03:
You want to save your rebuttal time here?

[00:14:51] Speaker 00:
Yes, Your Honor.

[00:14:54] Speaker 03:
Okay, Ms.

[00:14:55] Speaker 03:
Welch.

[00:15:02] Speaker 04:
Good morning, and may it please the Court.

[00:15:05] Speaker 04:
Mr. Garrett does not make a colorable claim that he has a right to avoid a remand.

[00:15:09] Speaker 04:
In fact, the only way his argument works is that the Veterans Court has to decide a case

[00:15:14] Speaker 04:
where the board failed to make an initial factual finding on an incorrect evidentiary record.

[00:15:20] Speaker 04:
So to begin with Judge Dyke's question at the very beginning, you asked, will they still have a CUE argument on remand?

[00:15:27] Speaker 04:
Yes, they can make an argument about clear non-mistakable error if the court remanded, if this is remanded back to the board and the board makes a decision and in fact they say there was clear non-mistakable error and that there was no favorable finding.

[00:15:38] Speaker 04:
In fact, they can make that argument again to the Veterans Court that there is no clear non-mistake clear.

[00:15:43] Speaker 03:
And they can make the forfeiture argument too, right?

[00:15:45] Speaker 04:
They could, Your Honor.

[00:15:47] Speaker 04:
But the fact of the matter is that there is just no factual decision in the first instance in this case.

[00:15:54] Speaker 04:
We're playing in this space right now where we're saying there was a favorable finding, but in fact it's unclear that there was.

[00:16:00] Speaker 04:
If you look at the record on page 38, it says specifically there was no nexus, and then in the summary on page 39, very next page just a couple sentences later, they say there's service connection.

[00:16:12] Speaker 04:
So on the facts of the record specifically, it's not clear whether or not there was actually a favorable finding.

[00:16:20] Speaker 04:
if this would go how Mr. Garrett wanted it to go and specifically say that these favorable findings, once they happen, are binding forever, that doesn't make any sense with Congress's intent.

[00:16:32] Speaker 04:
Congress would not have had the favorable finding provision with the specific... I'm a little confused by what you're saying.

[00:16:38] Speaker 01:
Are you saying that on remand you're going to say you can challenge this is not a favorable finding?

[00:16:46] Speaker 01:
On your brief on page 21, you say the correct threshold evidentiary question, you're talking about the remand, is whether the internally inconsistent favorable finding was refitted by CUE.

[00:16:58] Speaker 01:
So I thought the government was conceding that you're going to have to show CUE on the remand.

[00:17:03] Speaker 04:
Yes, right.

[00:17:04] Speaker 04:
We will have to show CUE.

[00:17:05] Speaker 04:
I was just pointing out the fact that on the record itself, while it does appear to be a favorable finding, it doesn't mean that there is a favorable finding forever.

[00:17:14] Speaker 04:
Here, if we show CUE,

[00:17:16] Speaker 04:
then there would not be a favorable finding forever.

[00:17:19] Speaker 04:
So I might have misspoken a way, but what I'm trying to say is that just because there is perhaps a favorable finding now, it doesn't mean that a favorable finding actually really existed.

[00:17:29] Speaker 01:
it because if you are able to establish that by CUE.

[00:17:34] Speaker 04:
Yes, Your Honor, that's correct.

[00:17:35] Speaker 04:
If we are able to establish that.

[00:17:37] Speaker 01:
Have you ever seen an issue like this where you've got an irreconcilable inconsistency in a two-page document?

[00:17:48] Speaker 04:
Your Honor, not in any of these cases where these Williams factors are dealt with in terms of whether or not something is reviewable, I would point out that this case is from the early days of the AMA, and before the AMA board review was de novo.

[00:18:03] Speaker 04:
So the favorable findings before the AMA weren't binding on the board.

[00:18:07] Speaker 04:
This was a new concept.

[00:18:08] Speaker 04:
It is possible that the board just might have made a mistake here, and that's what was argued below.

[00:18:13] Speaker 04:
We're not arguing that now, we're arguing that we could prove clear, no mistake, of error, but it is... And it's based on the record, does it exist?

[00:18:20] Speaker 01:
Yes, Your Honor, yes.

[00:18:21] Speaker 01:
Okay, because there's also confusion in this case, which I've not seen before either, because there's stuff that went on shortly after that that's not part of this record.

[00:18:29] Speaker 04:
and that's the problem I pointed out at the top that in fact the decision that was made was not made on the correct record.

[00:18:36] Speaker 04:
They included a July 27 medical examination.

[00:18:39] Speaker 04:
The record closed on July 2.

[00:18:41] Speaker 04:
The Veterans Court didn't say whether or not that was prejudicial, but they did tell the board, you need this time to look at the correct record.

[00:18:47] Speaker 04:
So in this case, if the Veterans Court was forced to not remand and take a look specifically at what's happened here, they would have to make a determination both where facts were never found determining

[00:19:00] Speaker 04:
what was wrong in terms of page 38 where it says there wasn't a favorable fighting on page 39, and they would also have to determine it on an incorrect record.

[00:19:08] Speaker 04:
So it's not clear here, and to make the Veterans Court do that in the first instance, that's not the Veterans Court's purview.

[00:19:14] Speaker 04:
It's not their purview in the first instance to make factual determinations, and the record is not clear for them.

[00:19:20] Speaker 04:
That's why they asked the board to go back.

[00:19:22] Speaker 01:
And does this go back to the RO or just to the board?

[00:19:25] Speaker 04:
Just to the board, Your Honor.

[00:19:26] Speaker 04:
The board would look at the RO decision and

[00:19:29] Speaker 04:
figure out, because what the board could have done in this case, and they didn't obviously, is they could have addressed the fact that the RO seemed to be doing a contradictory finding.

[00:19:37] Speaker 04:
They didn't do that, and that's why we sit here today with, as you said, a very unique set of actual scenario here where it's strange that it's clear that there was a discrepancy in the record, but the board just doesn't comment on it.

[00:19:50] Speaker 01:
But did anybody make the argument below, and if not, why not, that this isn't really a favorable finding?

[00:19:56] Speaker 01:
We don't know what this animal is because it's a complete contradiction.

[00:20:00] Speaker 01:
That wasn't made by the government at any point, right?

[00:20:02] Speaker 04:
No, no.

[00:20:04] Speaker 04:
Below the argument that was made by the secretary was that there was a typo in terms of just the final page of the RO decision where it says that there was a connection.

[00:20:16] Speaker 04:
So I think by

[00:20:19] Speaker 04:
arguing that it was a typo, there would be some sort of argument that, in fact, a favorable finding wasn't made, just because if there was a typo, then it wouldn't be a favorable finding.

[00:20:28] Speaker 04:
Like I said, we're not arguing specifically that no favorable finding was made.

[00:20:32] Speaker 04:
We're just arguing that clear, non-mistakable error could rebut the fact that

[00:20:38] Speaker 04:
no favorable finding exists.

[00:20:40] Speaker 04:
The problem is we simply don't know.

[00:20:43] Speaker 04:
And the veterans court recognizes that they say that there's contradictory findings.

[00:20:46] Speaker 04:
There's a favorable finding, but there's also a contradictory finding.

[00:20:49] Speaker 01:
Why couldn't all of this have been adjudicated while it was before the court of veterans claims, which would have obviously obviated the need for a remand?

[00:20:58] Speaker 01:
Because nothing new and different about what the arguments made here.

[00:21:01] Speaker 01:
Why wasn't this already taken care of?

[00:21:03] Speaker 04:
This couldn't have been taken care of at the Veterans Court, Your Honor, for the two reasons I've stated.

[00:21:07] Speaker 04:
First of all, the Veterans Court couldn't make an additional determination on the record, because the record was unclear.

[00:21:12] Speaker 04:
They needed the board specifically to say why they said there was no service connection.

[00:21:16] Speaker 04:
And on the facts here, there were two differing factual sets on appendix 38 and 39.

[00:21:20] Speaker 04:
And they needed the board to say why they weren't taking the RO's recommendation that there, well, the RO said there was no service connection.

[00:21:27] Speaker 04:
And then the board said that, but no one had ever addressed the fact that there was two conflicting findings.

[00:21:31] Speaker 04:
And in the first instance, the Veterans Court can't decide conflicting factual findings.

[00:21:35] Speaker 04:
And then the second prong of that is, of course, the fact that it was decided on the wrong record.

[00:21:39] Speaker 04:
And the Veterans Court said, we also can't look at a case where the board has made a determination on the incorrect record.

[00:21:46] Speaker 02:
And in terms of the record, I think you've already conceded this.

[00:21:49] Speaker 02:
I just want to be clear.

[00:21:50] Speaker 02:
If we affirm the remand, you concede that the record on which the VA would have to show clear and unmistakable error is the record that already exists as modified by the Veterans Court.

[00:22:06] Speaker 02:
You're not going to try and introduce new evidence.

[00:22:08] Speaker 04:
No, no, no.

[00:22:10] Speaker 04:
This isn't a case where I know that in some

[00:22:13] Speaker 04:
cases that deal with the Williams factors, this court does get concerned about the fact that what happens if the Veterans Administration tries to take a second bite at the apple, like Judge Crowe said.

[00:22:22] Speaker 04:
This is not a case where there's a second bite at the apple.

[00:22:24] Speaker 04:
This is simply on the same exact record, nothing additional.

[00:22:27] Speaker 04:
What was the board thinking?

[00:22:28] Speaker 04:
What was going on here with these two conflicting factual findings?

[00:22:33] Speaker 02:
And would you comment briefly on the Williams factors in light of the Chavez opinion?

[00:22:38] Speaker 02:
Is it still the government's position that we should not reach the merits of this case?

[00:22:43] Speaker 04:
It is still the government's position.

[00:22:44] Speaker 04:
As you know in the briefing, we conceded that they would meet Williams factor one.

[00:22:48] Speaker 04:
And after Chavez, we think that they might also meet Williams factor two.

[00:22:52] Speaker 04:
However, Williams factor three is where we still

[00:22:54] Speaker 04:
stand our ground and say that there is not a colorable claim that they're bringing for remand.

[00:23:01] Speaker 03:
And it's not a colorable claim because they're arguing... It's not a colorable claim that there's a right to no remand.

[00:23:06] Speaker 04:
Yes.

[00:23:07] Speaker 04:
Yes.

[00:23:07] Speaker 04:
Yes, Your Honor.

[00:23:08] Speaker 04:
And there's not a colorable claim that there's a right to avoid remand simply because of the language of the statute dealing with fable findings and clear unmistakable error itself.

[00:23:17] Speaker 04:
That statute was not written in a way that once something was binding, it was forever binding,

[00:23:22] Speaker 04:
and that someone could just continue to have a favorable finding that might have adhered on a mistake.

[00:23:29] Speaker 04:
It doesn't happen often, clearly, but it's something that Congress, if they'd wanted a favorable finding to adhere forever, they would have specifically said that.

[00:23:38] Speaker 04:
And it's not colorable to make an argument that the Veterans Court needs to decide something in the first instance where there's still factual issues.

[00:23:47] Speaker 04:
That is something that can be argued on, well,

[00:23:51] Speaker 04:
They can argue on remand why they believe clear and unmistakable error can't be found.

[00:23:56] Speaker 04:
This court under the Williams factor is under factor three.

[00:24:00] Speaker 04:
They just simply don't meet that factor.

[00:24:01] Speaker 02:
I want to make sure I understand that I'm following Williams factor three.

[00:24:08] Speaker 02:
What do you understand to be Williams factor three?

[00:24:11] Speaker 04:
There's a substantial risk that the decision would not survive remand.

[00:24:15] Speaker 02:
OK.

[00:24:16] Speaker 02:
And i.e.

[00:24:18] Speaker 02:
that the remand proceeding may moot the issue.

[00:24:20] Speaker 02:
Yes.

[00:24:22] Speaker 02:
Why?

[00:24:24] Speaker 02:
Help me understand why you think that's not met.

[00:24:27] Speaker 02:
Can you summarize that again?

[00:24:28] Speaker 04:
Yes.

[00:24:29] Speaker 04:
The remand proceeding wouldn't move the issue because on remand they can still argue that this finding should be binding or that if the veteran, if the... Okay.

[00:24:40] Speaker 02:
I think I understand what you're saying.

[00:24:42] Speaker 02:
His issue is he shouldn't have to go through a remand that he's entitled to the benefits now.

[00:24:48] Speaker 02:
you may say that's a frivolous issue, but that issue is not just a substantial risk, it would be mooted, it is mooted as soon as we room out, correct?

[00:24:57] Speaker 04:
Your Honor, I think the reason we would disagree and we think that Williams Factor 3 stops them from being heard in this court is that Williams has to mean something if

[00:25:09] Speaker 04:
The only issue that won't survive remand is the issue that you've mentioned, which is the fact that he won't be able to argue that right now he's entitled at this very moment to this favorable finding.

[00:25:19] Speaker 04:
But we would tie it to the language in Williams, which says that it's a colorable claim to avoid remand.

[00:25:25] Speaker 04:
And if Williams, as I said, is to mean anything, it has to be a colorable claim to avoid remand.

[00:25:30] Speaker 04:
Here, we simply don't have a colorable claim where he's saying that something untoward might happen, or as they said in

[00:25:38] Speaker 04:
and even in Adams, at the end of the day, a remand was granted, or the remand was allowed to go forward.

[00:25:44] Speaker 04:
So they can make an argument that there's something untoward happening or an issue, but this is not that case.

[00:25:51] Speaker 04:
And even in a case where that sort of factual scenario exists, the remand still was allowed to go forward.

[00:25:58] Speaker 03:
Do you think the point... So my impression...

[00:26:02] Speaker 03:
hearing some of these veterans cases recently is that there's a fairly frequent argument being made now that there's a right to a decision without a remand.

[00:26:12] Speaker 03:
Is the VA seeing a lot of those arguments being made, a lot of those cases being brought?

[00:26:17] Speaker 04:
Yes, Your Honor.

[00:26:18] Speaker 04:
And as I'm sure you know, the Love case that just came out, which you wrote, that you briefly touched on a hypothetical where Williams might be met.

[00:26:26] Speaker 04:
And that's a scenario where we see Williams could be met.

[00:26:29] Speaker 04:
But we are seeing more and more of these cases.

[00:26:30] Speaker 04:
And I think that's the problem with

[00:26:32] Speaker 04:
expanding Williams is, if this sort of claim is allowed to go forward under Williams, if it's considered to be this court can hear it, we continue to expand Williams where it's no longer an exception.

[00:26:42] Speaker 04:
It's just the wide role.

[00:26:45] Speaker 04:
Everyone can get in and everyone can simply make an argument that they're entitled to win without remand.

[00:26:51] Speaker 04:
Williams was set in place in the first place to streamline claims and to make sure this court was hearing things in the first instance that it had jurisdiction to hear.

[00:26:59] Speaker 01:
Do you think this is less colorable than the claim in Chavez?

[00:27:05] Speaker 04:
Yes, I do think this is less colorable than the claim in Chavez, because in Chavez, they did make the claim.

[00:27:13] Speaker 04:
He had argued that when the board fails to use the correct standard in the rating reduction case, the decision was void and the prior rating must be reinstated.

[00:27:25] Speaker 04:
here there wasn't even an incorrect standard use.

[00:27:28] Speaker 04:
There was a simple factual mismatch.

[00:27:30] Speaker 04:
We do not know in the first instance what occurred here.

[00:27:34] Speaker 04:
And for Mr. Garrett to argue that the binding nature of the fable finding that the statute just allows binding nature to be binding forever, it's the facts of this case are different from Chavez and the fact that it is not, it's

[00:27:54] Speaker 04:
It's absurd to think that a statute that has the language where it can be rebutted by clear and unmistakable error would be so binding that it can never be rebutted.

[00:28:03] Speaker 04:
It has the specific safety valve of language to say there is this option to have clear and unmistakable error.

[00:28:10] Speaker 04:
And to say that that's binding forever, it's just not colorable.

[00:28:13] Speaker 04:
So I do believe this case is less colorable than Chavez.

[00:28:17] Speaker 04:
Obviously in Chavez, they were

[00:28:19] Speaker 04:
they met the Williams factors, they were allowed to go forward, but even then, in the end, the remand, it would have been proper.

[00:28:26] Speaker 01:
I read about the argument that there was a waiver here, that in the absence of, I mean, what you acknowledged to Judge Dyke, I think that could be an argument made below.

[00:28:37] Speaker 04:
They could make a waiver argument.

[00:28:40] Speaker 04:
I don't think it would be successful on the merits just because that's not how the statute is written.

[00:28:45] Speaker 04:
Well, yeah.

[00:28:46] Speaker 01:
I mean, we're talking about whether there's a callable claim here.

[00:28:48] Speaker 01:
We don't need to have a likelihood of success on the merits.

[00:28:52] Speaker 04:
Well, I think the problem, that would be that they did not make a waiver argument here.

[00:28:56] Speaker 04:
They made an argument.

[00:28:58] Speaker 03:
The question is whether there's a callable claim to have a right to a decision of that question without a remit.

[00:29:03] Speaker 04:
Yes.

[00:29:04] Speaker 03:
And there's hardly any argument as to why.

[00:29:06] Speaker 03:
they can avoid a remand to have that issue addressed by the board.

[00:29:10] Speaker 04:
Yeah, that is the issue, Your Honor, is that they argue simply that this 3.104, without exception, allows them to have a favorable finding, and they can continue with that, and they should not have a remand.

[00:29:26] Speaker 04:
But the fact of the matter is the language of 3.104 does not say that.

[00:29:32] Speaker 04:
Because it has this clear unmistakable error valve, that is

[00:29:36] Speaker 04:
that is in existence.

[00:29:38] Speaker 04:
I think that what they argue when you mention waiver and how they didn't bring waiver up, I don't think they bring it up because they believe that the language of the statute is so clear that they're just right in the first instance and that the VA is not allowed to rebut something once it attaches.

[00:29:52] Speaker 04:
But that's simply not the language of the statute, Your Honor.

[00:29:54] Speaker 02:
I can see why expanding Williams might be a problem for the court.

[00:29:58] Speaker 02:
Is it a problem for the government?

[00:30:04] Speaker 02:
If the veteran wants to take their time to come up to us, again, I can see why that may be a problem for us.

[00:30:09] Speaker 02:
Is it a problem for the government?

[00:30:16] Speaker 04:
I suppose it would depend, which does not directly answer your question.

[00:30:22] Speaker 04:
But I think that in this case, the expansion of Williams would make it so we are defending more cases that should just be remanded.

[00:30:32] Speaker 04:
I'm here today defending a case that should be remanded in the first instance.

[00:30:36] Speaker 04:
I think that while we would be happy to continue to argue these cases, I think that it's probably better for your resources and our resources as well for the cases to just go back, because he could win below.

[00:30:47] Speaker 04:
So I think that while I'm happy to argue this, I think that he could win below, and I think that... I'm happy to be here too, just to stipulate.

[00:30:57] Speaker 04:
Yes, Your Honor.

[00:30:58] Speaker 04:
Are there any further questions?

[00:31:01] Speaker 02:
Thank you.

[00:31:02] Speaker 04:
Thank you.

[00:31:04] Speaker 04:
We ask the court to dismiss the appeal or affirm the decision of the Veterans Bar.

[00:31:07] Speaker 04:
Thank you.

[00:31:16] Speaker 00:
To briefly address a few of the items raised.

[00:31:19] Speaker 03:
I really don't understand why the Veterans Bar keeps bringing these cases up.

[00:31:24] Speaker 03:
Don't you have more important things to do than to

[00:31:30] Speaker 03:
Are you for repeatedly that there's a right to a remand?

[00:31:34] Speaker 00:
I can't speak to other cases, Your Honor, but in this case the three favorable findings have been met.

[00:31:41] Speaker 00:
And to the Secretary's point about we don't know whether there has been a favorable finding or not, the Veterans Court already resolved that and said, yes, there absolutely is a favorable finding regarding NEXIS that says that in Appendix 3 that falls under 3.104C.

[00:31:56] Speaker 00:
So there isn't a question about whether we have a favorable finding.

[00:31:59] Speaker 00:
We do.

[00:32:00] Speaker 00:
And that favorable finding is binding.

[00:32:01] Speaker 00:
And that's why this Court is here.

[00:32:03] Speaker 01:
Unless it's rebutted by a CUE.

[00:32:06] Speaker 00:
And it has not been.

[00:32:07] Speaker 00:
And that's the important distinguishing factor about this case, is that it has not been rebutted by CUE.

[00:32:13] Speaker 01:
And because VA has... And just to follow up on Judge Jike's point, I won't belabor it, but it's your client that's losing like two years of an adjudication.

[00:32:21] Speaker 01:
We all know that historically, the problem is that the adjudication of these claims takes so long.

[00:32:28] Speaker 01:
I'm assuming that nothing is happening pending this appeal.

[00:32:31] Speaker 01:
which has cost your client a year, year and a half, or whatever, if you assume you lose.

[00:32:36] Speaker 00:
Which is why this case is actually so important, Your Honor, because if this court holds that the favorable findings made under 3.14104C and 3.104A are binding immediately, just as Congress intended, so we don't have to re-litigate every single time all the issues as to whether they remain binding or not,

[00:32:55] Speaker 00:
That benefits veterans because it avoids cases like this in the future.

[00:32:58] Speaker 00:
They look at the favorable findings.

[00:33:00] Speaker 00:
Are they binding?

[00:33:00] Speaker 00:
Great.

[00:33:01] Speaker 00:
Let's move on.

[00:33:04] Speaker 00:
OK.

[00:33:05] Speaker 00:
Well, I think we're out of time.

[00:33:06] Speaker 00:
Yes, Your Honor.

[00:33:07] Speaker 03:
Thank you.

[00:33:07] Speaker 03:
Thank both counsels.

[00:33:08] Speaker 03:
The case is submitted.

[00:33:09] Speaker 03:
That concludes our session for this moratorium.

[00:33:11] Speaker 03:
Thank you.