[00:00:00] Speaker 05:
My last case this morning is Norah Lewis versus the Secretary of Veterans Affairs, 2023-12-98.

[00:00:08] Speaker 05:
Mr. Raven, when you're ready.

[00:00:13] Speaker 05:
Thank you, Your Honor.

[00:00:15] Speaker 02:
I apologize for my voice this morning.

[00:00:17] Speaker 05:
That's all right.

[00:00:18] Speaker 05:
Some of us have the same problem.

[00:00:22] Speaker 02:
May it please the Court, Sean Raven for the veteran, Norah Lewis,

[00:00:27] Speaker 02:
And in this appeal, this is an appeal regarding a regulation from the Department of Veterans Affairs.

[00:00:34] Speaker 02:
And the regulation is 38 CFR 3.344.

[00:00:38] Speaker 06:
Excuse me.

[00:00:41] Speaker 06:
Your argument is that the 2016, I guess, decision of the board is void of an issue, correct?

[00:00:50] Speaker 02:
The actual rating, no, the argument is that the initial rating reduction is void ab initio.

[00:00:56] Speaker 02:
So the board has nothing that it can cure.

[00:00:59] Speaker 02:
Okay.

[00:01:00] Speaker 02:
Yes.

[00:01:01] Speaker 06:
I'm sorry, the decision of the IRO is void ab initio.

[00:01:05] Speaker 06:
Yes.

[00:01:06] Speaker 06:
Now let me ask you this.

[00:01:07] Speaker 06:
We had before us a March

[00:01:10] Speaker 06:
twenty-two twenty-twenty-one decisions aboard.

[00:01:14] Speaker 06:
And that's what went up before the Veterans Court and now it's on appeal to us.

[00:01:19] Speaker 06:
Assuming for the moment that the 2016 R.O.

[00:01:24] Speaker 06:
decision had in it what's in the twenty-twenty-one board decision, would you be making the argument that

[00:01:35] Speaker 01:
I'm not sure if I'm understanding the question correctly.

[00:01:42] Speaker 01:
I'm sorry, it's convoluted.

[00:01:44] Speaker 06:
You have the 2016 R.O.

[00:01:47] Speaker 06:
decision.

[00:01:47] Speaker 06:
Correct.

[00:01:48] Speaker 06:
You say that decision is void because it does not address the items that had to be addressed in 3.344, correct?

[00:01:57] Speaker 06:
That's correct.

[00:01:58] Speaker 06:
Now, then looking at the board decision from 2021 after the two

[00:02:05] Speaker 06:
that board of remands, if that was the decision,

[00:02:11] Speaker 06:
that had been decided in 2016.

[00:02:13] Speaker 06:
In other words, if the 2016 RL decision read as the 2021 board decision reads, would you be saying that the 2016 RL decision is void of initiative?

[00:02:28] Speaker 02:
Yes, we would.

[00:02:29] Speaker 02:
But that wasn't the argument that was made down below.

[00:02:31] Speaker 02:
I think I know where you're going with this.

[00:02:34] Speaker 02:
I think that you're going to say that the board's decision subsumes the RL rating decision.

[00:02:40] Speaker 06:
No, I'm not saying that.

[00:02:41] Speaker 06:
I'm just saying, assuming that the RO had said in 2016 what the board said in 2021, in other words, if it was the exact same decision, would you be saying that that RO decision was void ab initio?

[00:03:00] Speaker 06:
Yes.

[00:03:00] Speaker 06:
Why?

[00:03:02] Speaker 06:
Because it talks about, at pages 32 and 33 of the appendix, we have a discussion of the

[00:03:09] Speaker 06:
of life against the reference in 3.344.

[00:03:13] Speaker 06:
It seems to be a very complete decision.

[00:03:15] Speaker 06:
I'm wondering how, if the board had said all that in 2016, you would say it's void.

[00:03:23] Speaker 02:
I would say it's void because it doesn't consider later, as the two remands show, it didn't consider later evidence that came in.

[00:03:31] Speaker 02:
that demonstrated that Mr. Lewis had psychiatric symptoms of suicidal ideation.

[00:03:38] Speaker 02:
And that was the purpose for those two prior remants, to show that the radio decision that was made in 2016 didn't have that evidence.

[00:03:45] Speaker 02:
Had the board's decision been complete and had the board's decision included that, then there wouldn't have been any basis for the parties to agree to two remants.

[00:03:55] Speaker 06:
But this... It seemed that that 2021

[00:04:00] Speaker 06:
2021 board decision is very complete.

[00:04:03] Speaker 06:
It talks about all of the various examinations going back to

[00:04:08] Speaker 06:
2010 through 2016?

[00:04:11] Speaker 02:
Even if you believe that the most recent board decision, which was on appeal to the Veterans Court, satisfied all the regulations for rating reduction, the problem is that under the regulation under 3.344, the rating decision under 3.105E

[00:04:31] Speaker 02:
The rating decision itself has to have that information in it.

[00:04:34] Speaker 02:
And when it doesn't, when the board reviews that... That's what I'm saying.

[00:04:38] Speaker 06:
I understand your argument, but what I'm saying is, you're saying basically if the 2021 decision doesn't help because it's not the board decision, it's not the RO decision.

[00:04:50] Speaker 06:
Correct.

[00:04:51] Speaker 06:
And I'm saying if the RO had said in 2016,

[00:04:57] Speaker 06:
what the board said in 2021, you might disagree with the merits, but would you say it's void ab initio?

[00:05:03] Speaker 06:
You could have a quibble with whether it got it right or wrong, but I don't see how you'd have your void ab initio argument, because it seems everything was addressed.

[00:05:14] Speaker 02:
Well, I would respectfully disagree.

[00:05:16] Speaker 02:
But if you see that the board's decision contained all that information, then

[00:05:22] Speaker 02:
and the rating decision did not contain that information, if you were to switch them, then you might find or believe that that rating decision shouldn't be void ab initio because it complies with all the requirements of 3.105E and 3.344A.

[00:05:40] Speaker 02:
But the argument is that because the rating decision doesn't contain that information, the board can't cure that.

[00:05:47] Speaker 02:
the board is looking to see whether or not the rating reduction was done in accordance with law.

[00:05:51] Speaker 02:
If the rating reduction wasn't done in accordance with law, then that rating decision is void.

[00:05:57] Speaker 02:
It can't cure it.

[00:05:58] Speaker 02:
It can't correct it, which is a big difference from other cases like an increased rating claim for veterans, because increased rating claims or service connection claims, normally board decisions subsume the regional office decisions under the de novo review.

[00:06:14] Speaker 03:
So I see this word all the time, but I don't understand what the word subsume means.

[00:06:18] Speaker 02:
It takes the place of.

[00:06:19] Speaker 02:
It's as if the regional office decision is completely gone.

[00:06:23] Speaker 02:
It's void.

[00:06:23] Speaker 02:
It doesn't exist anymore.

[00:06:27] Speaker 03:
Even though it... So it's assumed it means displaces.

[00:06:31] Speaker 02:
I respectfully would say that, to take the place of.

[00:06:35] Speaker 03:
Okay.

[00:06:36] Speaker 02:
So the Board of Veterans' Appeals, even though it's the Veterans of Appeals, it actually has de novo review.

[00:06:43] Speaker 02:
And that's what the Secretary's argument is, is that when

[00:06:46] Speaker 02:
the board makes a decision, it subsumes the RO's decision.

[00:06:50] Speaker 02:
But the appellant's argument is that the rating decision has to contain this information.

[00:06:56] Speaker 02:
It has to follow the procedures.

[00:06:58] Speaker 02:
And that when the board reviews the regional office decision, it determines whether or not the regional office decision complied with all the procedural and substantive requirements of reducing a veteran's rating.

[00:07:09] Speaker 03:
So does the board have the authority

[00:07:14] Speaker 03:
to say, let's suppose it says, oh, I look at the rating decision.

[00:07:19] Speaker 03:
The rating decision didn't address an issue.

[00:07:22] Speaker 03:
That's a violation of 3.105e because the rating agency actually has to address every material fact and 3.344 makes a particular fact material and so the RO made a mistake.

[00:07:37] Speaker 03:
Does the board have the authority to say, but we are looking at all of the evidence that was in front of the RO

[00:07:45] Speaker 03:
And it is clear to us as de novo fact-finders that that particular fact required by 3.344 was in fact met.

[00:07:58] Speaker 03:
And therefore to say, so the RO's procedural mistake

[00:08:05] Speaker 03:
is of no consequence.

[00:08:07] Speaker 03:
We're not going to avoid what the RO did and say start over with you know because it's now three years later because it takes a long time to get to a board decision and the reduction is going to have to be reversed and for that three-year period it goes back up to 70 instead of down to 30 and even though we think in fact the reduction is correct.

[00:08:31] Speaker 02:
So to answer your question, the procedural safeguards were put in place for veterans.

[00:08:36] Speaker 02:
Veterans have a tremendous benefit.

[00:08:39] Speaker 02:
Standards are very reduced for them.

[00:08:41] Speaker 02:
When the board notices that a rating decision does not comply with law, does not comply with the law, it has no choice but to find that that rating decision, reducing the disability rating, is void ab initio.

[00:08:54] Speaker 02:
It doesn't exist.

[00:08:56] Speaker 02:
It didn't follow the procedural or substantive safeguards meant to give veterans the opportunity of due process of law, of notice of the information evidence that's going to be used

[00:09:07] Speaker 02:
to reduce the disability ratings and the opportunity to respond to that.

[00:09:10] Speaker 02:
That was 3.105E and 3.344.

[00:09:13] Speaker 02:
That's the purpose of its procedural due process.

[00:09:16] Speaker 02:
So when the board sees the evidence and says, well, the rating decision is wrong.

[00:09:21] Speaker 02:
The rating decision didn't contain all the information.

[00:09:24] Speaker 02:
The board can't cure that by saying, well, here's what we find different about the board.

[00:09:29] Speaker 02:
Here's what we find differently.

[00:09:30] Speaker 02:
And here's why, even though we have a different basis for what finding reduction is.

[00:09:36] Speaker 03:
Is there some statutory or regulatory provision in support of what you just said was a constraint on what the board can do?

[00:09:50] Speaker 03:
Procedural mistakes are very commonly

[00:09:53] Speaker 03:
treated as harmless.

[00:09:57] Speaker 02:
This is a case of first impression.

[00:09:59] Speaker 02:
And as such, it relies upon the case law that was put, that's presidential from the Veterans Court, Kitchens, Brown versus Brown.

[00:10:09] Speaker 06:
In Kitchens, there was a decision of the Veterans Court reviewing the board decision.

[00:10:15] Speaker 06:
And in Kitchens, the Veterans Court said the Board's decision didn't do it.

[00:10:22] Speaker 06:
It's not really what we have here.

[00:10:24] Speaker 02:
So the Veterans Court only reviews Board decisions.

[00:10:30] Speaker 02:
It doesn't review regional office decisions.

[00:10:32] Speaker 02:
So when reviewing the Board decisions, we look at 7104D under 38 USC, which is the reasons or bases requirement for Board decisions to contain reasons or bases.

[00:10:43] Speaker 02:
And what the secretary is arguing is that under 7104D, the board has to provide reasons or bases to show that rating reductions were done in accordance with law.

[00:10:53] Speaker 02:
But the regulation still applies to regional offices, and regional offices have to issue rating decisions that comply with the laws.

[00:11:01] Speaker 06:
One question I read in your rebuttal a little bit.

[00:11:05] Speaker 06:
I'm sorry.

[00:11:06] Speaker 06:
It's undisputed, isn't it, that the

[00:11:09] Speaker 06:
Woodward did not consider any evidence that had not been before the R.L.

[00:11:15] Speaker 06:
There's no question of improperly considering new evidence.

[00:11:20] Speaker 02:
Actually, I would dispute that.

[00:11:22] Speaker 02:
I see my time is almost up.

[00:11:23] Speaker 02:
But just really quickly, the basis of the two remands that the board didn't consider the mental examination showing suicidal ideation demonstrates that the board is considering evidence that the regional office didn't.

[00:11:35] Speaker 02:
That's the key to this, is that the two joint motions for remand showed that the board didn't discuss this because this was evidence.

[00:11:42] Speaker 06:
The difference between discussing it and having it before

[00:11:46] Speaker 02:
that's what i was talking about in that case and then you're right and then the president raise any evidence that was after reading this is the day of the rain decision that was that that was that was the and the rest of the time mister

[00:12:03] Speaker 00:
Thank you, may it please the court.

[00:12:04] Speaker 00:
The dispositive regulation here is not 38 CFR 3.344, but 38 CFR 20.1104.

[00:12:11] Speaker 00:
That's the regulation that says a board decision subsumes any prior decision of the VA.

[00:12:18] Speaker 00:
And it's a basic... 20. what?

[00:12:20] Speaker 00:
20.1104.

[00:12:20] Speaker 00:
What does subsume mean?

[00:12:26] Speaker 04:
It includes and becomes

[00:12:28] Speaker 00:
So it replaces the prior decision.

[00:12:31] Speaker 00:
Obviously, the original decision of the RO is still within the record.

[00:12:36] Speaker 00:
It isn't expunged necessarily, but the actual decisional document and the reasoning and description and fact finding, the board document replaces whatever had come before.

[00:12:49] Speaker 00:
And it's a basic principle of administrative law.

[00:12:52] Speaker 00:
VA has a much more thoroughly developed process than many agencies, but at any agency, if you have an initial decision by some decision maker within the agency, and then an individual who's affected by that decision requests further review or appeal, whether to the administrative head or somebody the agency has set up,

[00:13:10] Speaker 00:
That is still internal to the agency.

[00:13:12] Speaker 00:
It's still internal to the agency's decision-making process.

[00:13:15] Speaker 00:
And the board's decision is the culmination of VA's decision-making process on every issue that a claimant might raise before VA.

[00:13:23] Speaker 00:
That's why the Veterans Court only has jurisdiction to review board decisions.

[00:13:27] Speaker 03:
So let me just tell you what is bothering me.

[00:13:32] Speaker 03:
It seems to me that 3.105E expressly says that the rating agency, that's the regional office, has to make certain findings and document, basically,

[00:13:45] Speaker 03:
um, things that are material.

[00:13:47] Speaker 03:
3.344 says some things are material.

[00:13:50] Speaker 03:
Um, on the facts here, the RO did not make a finding about one of those facts.

[00:13:57] Speaker 03:
Um, that's a violation.

[00:14:00] Speaker 03:
Now, the question is, why is that not remediable?

[00:14:05] Speaker 03:
In the meantime, between 2016, when the reduction is made, and ultimately 2021, when the board decides, the benefits have actually been reduced, right?

[00:14:25] Speaker 03:
Yes.

[00:14:26] Speaker 03:
not in keeping with what the point of the special rules for reducing ratings are designed to do to say, well, for five years, you're going to have to wait.

[00:14:40] Speaker 03:
You're going to have to live on less.

[00:14:42] Speaker 03:
We'll give you the money back if it turns out that you're right about it.

[00:14:47] Speaker 03:
But there's a reason for these special burdens in 3.105 and 3.344.

[00:14:54] Speaker 03:
Um, so it seems odd to say, um, under the general rule 1104 of the board with this word subsumed that we then ignore what the rating agency did.

[00:15:10] Speaker 00:
So I think there are two answers to that, Your Honor.

[00:15:12] Speaker 00:
The first answer, from a textual basis, the regulations about rating reductions are not unique in assigning certain tasks to the rating agency.

[00:15:20] Speaker 00:
We didn't provide a full laundry list in our briefing, but there are many decisions, or many issues, where the regulations specifically say the rating agency itself shall do it.

[00:15:29] Speaker 03:
If I do a search in the code, it comes up, I forget what, but 20 times.

[00:15:33] Speaker 00:
There are many instances.

[00:15:35] Speaker 00:
It's not unusual.

[00:15:36] Speaker 03:
And that means the agency of original jurisdiction that doesn't mean the board, right?

[00:15:41] Speaker 03:
That's correct.

[00:15:42] Speaker 03:
And even if it included the board, it would still include the first level.

[00:15:45] Speaker 00:
That's correct, Your Honor.

[00:15:47] Speaker 00:
And so, again, it's just the way VA system is set up on every issue, on issues where VA has the initial burden or issues where the claimant has the initial burden.

[00:15:55] Speaker 00:
There's always some office within VA that's assigned as the agency of original jurisdiction.

[00:16:00] Speaker 00:
to develop the record to make initial findings and to make an initial decision.

[00:16:05] Speaker 03:
Okay, so why does it not matter that there was a mistake in the reduction decision that lasted for five years just because the board later said, had you addressed, I don't know if the board quite said this, but how do you overlook that mistake?

[00:16:26] Speaker 00:
So the first thing I would say to that, Your Honor, is that the mistake here, I think, is fairly characterized as procedural, as Your Honor was suggesting earlier.

[00:16:33] Speaker 00:
It's not the case that there was a failure to address a material piece of evidence, or there was an evaluation of improper evidence, anything like that.

[00:16:42] Speaker 00:
The only issue was a failure to recite in the decision document as much detail.

[00:16:48] Speaker 03:
Well, failure to make a particular finding.

[00:16:51] Speaker 00:
In the decision document itself, we don't disagree.

[00:16:54] Speaker 00:
There was a failure to describe the particular facts that were supporting the reduction.

[00:16:58] Speaker 00:
But I will say in response, I think, to some of Mr. Lewis's arguments about due process and fairness here, all of the evidence was before the RO.

[00:17:08] Speaker 00:
There is no new evidence that was being considered.

[00:17:10] Speaker 00:
The additional information he was referencing about suicidal ideation or failure to consider, that was all submitted by the veteran.

[00:17:16] Speaker 00:
There's nothing that VA itself came up with

[00:17:19] Speaker 00:
between the RO decision and the board decision.

[00:17:22] Speaker 00:
So from a fairness perspective, none of those issues are implicated here.

[00:17:25] Speaker 00:
The question is simply, did the RO decision itself fairly document the extent of evidence that was in the record?

[00:17:33] Speaker 00:
And the board recognized it perhaps did not.

[00:17:36] Speaker 00:
But it is the board's job expressly, in the regulations and in the statutes, to do that work, right?

[00:17:42] Speaker 00:
The board has de novo fact-finding authority.

[00:17:44] Speaker 00:
Now, the board is limited to some extent.

[00:17:46] Speaker 00:
It can't go and develop new evidence that wasn't before the RO.

[00:17:50] Speaker 00:
It can't evaluate issues that had not been presented below.

[00:17:54] Speaker 00:
But the board is empowered, and for precisely this reason, to make de novo findings a fact based upon the record that the RO itself developed and any additional evidence that the veteran themselves would like to present to the board, as Mr. Lewis did here.

[00:18:09] Speaker 00:
And the de novo process, again, is meant to fully replace the original decision.

[00:18:16] Speaker 00:
And that's true of every decision that VA makes.

[00:18:18] Speaker 00:
And I want to emphasize this point because there's no real way, I think, to cabin the argument that Mr. Lewis is making strictly to rating reductions.

[00:18:26] Speaker 00:
The argument is based upon the regulatory language that says the rating agency shall make these findings.

[00:18:34] Speaker 00:
But as I think we all agree, that's true of many, many, many findings that VA makes.

[00:18:39] Speaker 00:
And in all of those, the board has the power and authority and I think the obligation

[00:18:44] Speaker 00:
to make de novo fact findings and make the right decision when an issue reaches it, and not simply remand in perpetuity back to the RO, which is, I think, essentially what this argument would require.

[00:18:56] Speaker 03:
Well, I'm not quite sure it requires that.

[00:18:58] Speaker 03:
I mean, it's one thing to say we can make de novo

[00:19:03] Speaker 03:
findings, it's another thing to say when there's a rule put in place specifically to make sure that a particular kind of agency, rating agency action, namely, reducing the money that's coming in that the veteran is depending on, that that one actually had better be complied with before the actual reduction occurs.

[00:19:31] Speaker 03:
So it wouldn't encompass every kind of board reconsideration of whether the RO was right in granting an initial rating on something.

[00:19:44] Speaker 00:
And just to resist that, Connor, I don't know that there's a way to distinguish those two points based upon the framing that Mr. Lewis has provided.

[00:19:51] Speaker 00:
His argument is, because 3.344 says the rating agency must make these findings,

[00:19:58] Speaker 00:
Therefore, if the rating agency doesn't, then the finding and the decision is ineffective and the board's subsequent decision cannot fix that.

[00:20:08] Speaker 00:
That argument is not limited to rating reduction issues.

[00:20:11] Speaker 00:
That logic would apply to everything.

[00:20:14] Speaker 00:
Any decision

[00:20:15] Speaker 00:
that is assigned to a rating agency in the first instance that would have to be made if it is defective in some way, and that's including decisions beneficial to veterans.

[00:20:23] Speaker 00:
If that decision were defective in some way, then under that logic, the board can't fix it, and the board cannot do what it is explicitly empowered to do under statute and regulation, which is to make a new decision that subsumes the prior decision.

[00:20:38] Speaker 00:
to re-review all of the evidence in the record, make new findings a fact, and render a new decision that replaces the old one.

[00:20:45] Speaker 00:
That's exactly what the board is empowered to do.

[00:20:47] Speaker 00:
And there's nothing within the actual text of the regulations or the statutes here that suggests why the argument that because the rating agency is the one empowered to do it in the first instance means the board can't do it would be limited to rating reductions.

[00:21:00] Speaker 00:
It would apply to everything.

[00:21:01] Speaker 00:
It would upend the entire system.

[00:21:13] Speaker 00:
Just reviewing my notes for a second here.

[00:21:16] Speaker 00:
I don't think we had any other points unless the court has any other questions.

[00:21:20] Speaker 05:
Thank you, Mr. Wilson.

[00:21:22] Speaker 05:
Mr. Raven has some rebuttal time.

[00:21:34] Speaker 02:
I would respectfully disagree strongly with my colleagues.

[00:21:40] Speaker 02:
idea that rating reduction decisions are not special.

[00:21:45] Speaker 02:
There are specific regulations, 3.105E, 3.344A, which specifically applied rating reduction cases.

[00:21:57] Speaker 02:
When they are not complied with, when the secretary doesn't follow the rule of law, the rating decision is void.

[00:22:03] Speaker 02:
It cannot be cured by the Board of Veterans' Appeals.

[00:22:10] Speaker 02:
We would respectfully request that the court reverse the Veterans Court.

[00:22:14] Speaker 02:
Thank you.

[00:22:15] Speaker 05:
Thank you.

[00:22:15] Speaker 05:
Mr. Hibbert, your argument in the case of submitters.

[00:22:19] Speaker 05:
That concludes today's arguments.