[00:00:00] Speaker 04:
Case number 22-1885, Mowbray versus McDonough.

[00:00:05] Speaker 04:
McDonough.

[00:00:06] Speaker 04:
All right, that's only McDonough.

[00:00:09] Speaker 04:
Okay, McDonough, say your name, counsel.

[00:00:10] Speaker 04:
Dohomkus, your honor.

[00:00:11] Speaker 04:
Mr. Dohomkus, please proceed.

[00:00:14] Speaker 00:
Good morning, and may it please the Court.

[00:00:15] Speaker 00:
On behalf of Mr. Moberly, I wish to thank the Court for this opportunity to present its appeal.

[00:00:20] Speaker 00:
With this appeal, we ask that this Court determine when a decision occurs from the Board of Veterans' Appeals.

[00:00:27] Speaker 00:
More specifically, we ask this Court to find that because 38 USC 7102 directs the Board,

[00:00:34] Speaker 00:
member to prepare a report and 7104 directs the board to mail a copy of that report to the claimant at his last known address.

[00:00:42] Speaker 00:
A decision cannot occur until the mailing to the last known address is completed.

[00:00:48] Speaker 02:
What about the language of the statute that says something like the decision is mailed?

[00:00:54] Speaker 02:
Doesn't that mean that there's already a decision before it's mailed?

[00:01:03] Speaker 00:
The statute, Your Honor, and I'll just, after reaching a decision, the board shall promptly mail a copy to the claimant.

[00:01:10] Speaker 00:
Right.

[00:01:11] Speaker 02:
So since it says after reaching a decision, the board shall promptly mail.

[00:01:15] Speaker 02:
So the decision preexists the mailing.

[00:01:18] Speaker 02:
So how can it be that there's no decision if there's no mailing?

[00:01:22] Speaker 00:
Your Honor, I think, and this is something that is very nuanced, I admit.

[00:01:27] Speaker 00:
But what we have to do is we have to consider the difference between 7102

[00:01:32] Speaker 00:
7104.

[00:01:32] Speaker 00:
7102 directs the board member to create a report of its determinations.

[00:01:40] Speaker 00:
That's the determinations that are on the findings of fact, conclusions of law under 7104D1.

[00:01:47] Speaker 04:
Then the decision itself is finalized.

[00:02:01] Speaker 04:
minutes, you get a do-over.

[00:02:03] Speaker 04:
Sorry for holding you up.

[00:02:05] Speaker 04:
Please, go ahead.

[00:02:06] Speaker 00:
Thank you, Your Honor.

[00:02:08] Speaker 00:
So Judge Stoll, the answer to your question I think lies in the distinction between what 7102 requires and what 7104 requires.

[00:02:16] Speaker 00:
And 7102 is the directive to make a determination on the proceeding.

[00:02:23] Speaker 00:
in accordance with 7104D.

[00:02:25] Speaker 00:
And then 7104D in turn directs the Board of Veterans' Appeals to make findings of fact and of law on material issues presented to it and on the record.

[00:02:36] Speaker 00:
And so the determination, I think that there's an inter

[00:02:41] Speaker 00:
Interchange of terminology here where yes in the in the general sense a decision has been made on those specific Findings of fact and law, but they're really determinations Under 7102 they prepare the report.

[00:02:56] Speaker 03:
It's a tortured reading of 7104 I mean D says you're gonna make a decision it's gonna have these facts and he says

[00:03:03] Speaker 03:
that you're going to, after reaching a decision in the case, you're going to mail it to the claimant at his or her last known address, which was done here.

[00:03:13] Speaker 03:
It was mailed.

[00:03:14] Speaker 03:
The decision's dated March.

[00:03:19] Speaker 03:
of me, March 20, 2018.

[00:03:21] Speaker 03:
The mailing post stamp is March 22, 2018.

[00:03:25] Speaker 03:
To the address, they have on record your client provided.

[00:03:28] Speaker 03:
Is it not also your client's responsibility to always keep the court apprised as to what their current address is?

[00:03:34] Speaker 03:
Because it was returned undeliverable because he'd moved.

[00:03:38] Speaker 03:
Is it your argument that a decision written by a judge doesn't become a decision if the claimant moves and doesn't tell the court where he is?

[00:03:45] Speaker 00:
No, Your Honor.

[00:03:47] Speaker 00:
This case is distinguishable, and I get your point, but I do think that what we're asking this court to hold in this case will apply in very, very limited cases.

[00:03:58] Speaker 00:
And going forward, not very many, and I'll explain why in a minute.

[00:04:02] Speaker 00:
First off, the decision that was, the report that was put in the mailbox came back from the post office.

[00:04:08] Speaker 00:
And the post office told the VA, here's his new address.

[00:04:11] Speaker 00:
It's the exact same address where he was when the 2020 report was mailed.

[00:04:16] Speaker 00:
The exact same address when he submitted the additional evidence the year later.

[00:04:19] Speaker 04:
Yes, but he could have asked for an equitable polling, correct?

[00:04:22] Speaker 00:
He could have, Your Honor, except that he never got the report.

[00:04:26] Speaker 00:
And that's where this case is distinguishable and why we're asking for relief in the manner that we are.

[00:04:32] Speaker 04:
When you say he never got the report, like still to this day?

[00:04:35] Speaker 00:
Well, he has it now that this proceeding has begun at the court, Your Honor.

[00:04:39] Speaker 00:
But whether he got the physical report or not that was drafted in 2018 is irrelevant because the board sent a different report in 2020, and that's in response to the 2013 claim.

[00:04:52] Speaker 04:
So, and what makes this case distinguishable is... I feel like, with Judge Gansabego in the tortured part, I feel like you want a really tortured reading of a statute that makes no sense for an otherwise sympathetic set of facts.

[00:05:11] Speaker 04:
But the problem I have is there exists a remedy for the sympathetic set of facts you have, and the remedy just wasn't pursued.

[00:05:20] Speaker 00:
Your Honor, the reason that the remedy, and I think you're speaking of appealing the 2018 decision late and asked for tolling, the reason that that's not available is because a subsequent determination, a subsequent report was prepared on the exact same claim

[00:05:36] Speaker 00:
And for our understanding and what we're asking this court to interpret the statutes to say, he never got that report.

[00:05:44] Speaker 00:
And so because it's in the legacy claims processing system, the board still has to account for any additional evidence that's received before the decision has been done.

[00:05:58] Speaker 03:
If he submitted in September of 2019 a supplemental claim that references the denial, then was he not aware by September of 2019 that his 2018 claim had been denied?

[00:06:14] Speaker 03:
Was he just assuming that because he like never heard?

[00:06:19] Speaker 00:
I understand the fact that his representative put that date on the supplemental claim form, I think, is irrelevant to this question, which is, was a decision made?

[00:06:31] Speaker 00:
Whether or not the report was in the record that was given to the representative does not equate to the board performing its obligations of mailing it to his last known address.

[00:06:44] Speaker 00:
And I think it's really important that we understand that when the report came back, the VA did nothing.

[00:06:51] Speaker 00:
They didn't send it back to the new address.

[00:06:53] Speaker 00:
That's conceded by the secretary.

[00:06:55] Speaker 04:
And on N42, and I think it's the same supplemental claim that Judge Pienaar-Mengo is referring to, it expressly references that decision.

[00:07:04] Speaker 04:
So obviously, he and his representative were aware of it as of, what's the date?

[00:07:11] Speaker 03:
September 2019.

[00:07:14] Speaker 00:
Yes, but being aware of.

[00:07:17] Speaker 00:
That's true if the decision meets the standards for the statute.

[00:07:23] Speaker 00:
And our argument is that because it was never mailed to his last known address, which the VA knew, it was not a decision under the statute.

[00:07:31] Speaker 00:
And until a decision is made that checks all the blocks, that completes every step, not just most of the steps, but every step, a decision has not been rendered and he cannot appeal it.

[00:07:45] Speaker 02:
If we disagree with that interpretation, that's the end of the case, right?

[00:07:51] Speaker 02:
Yes, sure.

[00:07:52] Speaker 00:
Absolutely.

[00:07:53] Speaker 00:
And we understand that.

[00:07:55] Speaker 00:
I just don't even understand.

[00:08:00] Speaker 04:
The 2018 version of 7104E that you rely on says, after reaching a decision on the case, the board shall promptly mail a copy.

[00:08:12] Speaker 04:
I mean, it makes it clear that the decision

[00:08:15] Speaker 04:
has already been reached, and that a copy will be mailed.

[00:08:19] Speaker 04:
You don't have a decision until it's mailed.

[00:08:21] Speaker 04:
A copy will be mailed.

[00:08:23] Speaker 00:
Correct, Your Honor.

[00:08:24] Speaker 00:
That is the words.

[00:08:25] Speaker 00:
But again, we have to look at how 7104

[00:08:30] Speaker 00:
discusses or identifies what is being prepared.

[00:08:36] Speaker 00:
7102 says to prepare the report, which then 7104 turns into a decision.

[00:08:43] Speaker 00:
7104D says decision, 7104E says decision.

[00:08:47] Speaker 00:
But the way that we're asking this court to do is to interpret the two statutes to be talking about the written report under 7102 and that the decision does not happen until the mailing occurs.

[00:09:02] Speaker 02:
I'm having a hard time even looking at those two statutes and agreeing with you on this.

[00:09:08] Speaker 02:
To be honest, the fact that one statute refers to a report and the other one refers to a decision, to me, doesn't make it so the decision under E1 is not, in fact, a decision until after it's mailed.

[00:09:22] Speaker 00:
Yes, Your Honor.

[00:09:24] Speaker 00:
And I appreciate that.

[00:09:25] Speaker 00:
And again, it's a very nuanced argument.

[00:09:29] Speaker 04:
And you say nuanced.

[00:09:31] Speaker 04:
I say frivolous.

[00:09:34] Speaker 04:
Do you have anything further?

[00:09:35] Speaker 00:
Well, the only thing that I have left, Your Honor, is to address what the Veterans Court ruled.

[00:09:42] Speaker 00:
The Veterans Court ruled that the March 2018 board decision became final on the date that the stamp was affixed to it.

[00:09:52] Speaker 00:
They're relying on 20.1100A, which the government also relies on.

[00:09:57] Speaker 00:
But the only thing that we would address in that context is that

[00:10:02] Speaker 00:
The permanent language is that the decisions are final on the date stamped on the face of the decision, not when the date is stamped on it.

[00:10:11] Speaker 00:
And we think that that's an indication that, again, the decision has to occur before the date that's affixed to it can represent the finality of it.

[00:10:21] Speaker 03:
Well, what date would have been stamped on there other than the date that the judge signed it and said, this is my decision?

[00:10:27] Speaker 00:
Well, as happened here, a second report was prepared in 2020 on the same claim.

[00:10:35] Speaker 00:
And so the final decision date would have been the 2020 decision that was eventually appealed to the Veterans Court and is now before this Court.

[00:10:49] Speaker 00:
The other point that we would make is, as we addressed in our briefing, 3.160 talks about

[00:11:00] Speaker 00:
what is a final decision, finally adjudicated claim.

[00:11:06] Speaker 00:
Either you don't appeal or disposition on appellate review.

[00:11:10] Speaker 00:
And again, the disposition referring back to 7102, where it talks about the report shall constitute the final disposition of the proceeding.

[00:11:19] Speaker 00:
And we think that by using the same language, the same term, that the secretary in his regulation was acknowledging that the report

[00:11:28] Speaker 00:
is the decision, I'm sorry, the report is the determination and the disposition and then the decision itself occurs after all the steps have been performed under 7104.

[00:11:43] Speaker 00:
I will reserve the rest of my time for rebuttal.

[00:11:46] Speaker 04:
Very good.

[00:11:49] Speaker 04:
Is it Beckerich?

[00:11:51] Speaker 04:
Did I say it right?

[00:11:52] Speaker 04:
Oh good, it's Beckerich.

[00:11:53] Speaker 04:
Go ahead.

[00:11:57] Speaker 01:
Good morning, Your Honors.

[00:11:58] Speaker 01:
May it please the Court.

[00:11:59] Speaker 01:
The Court should affirm the Veterans Court decision based on a straightforward reading of 38 U.S.C.

[00:12:05] Speaker 01:
7104 and 38 CFR Section 20.1100A.

[00:12:08] Speaker 01:
As Your Honors point out, the statute makes clear that the obligation to mail occurs after a decision has been rendered.

[00:12:18] Speaker 01:
In other words, the fact that there is a decision is a trigger for the obligation to mail.

[00:12:23] Speaker 01:
The statute doesn't say that the mailing of the decision

[00:12:27] Speaker 04:
uh... somehow otherwise turns a non-final decision and

[00:12:38] Speaker 04:
candidates for equitable tolling a failure to timely appeal?

[00:12:42] Speaker 01:
Absolutely, Your Honor.

[00:12:44] Speaker 01:
The Veterans Court addressed that in Boyd and says that if there's a mailing defect, that is the effect.

[00:12:49] Speaker 01:
If there's tolling of the appeal period, I believe that 38 USC 7266.

[00:12:53] Speaker 01:
Is there anything else?

[00:12:55] Speaker 04:
I have no information.

[00:12:57] Speaker 04:
OK.

[00:12:58] Speaker 04:
Please continue.

[00:12:58] Speaker 04:
You have some rebuttal time.

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

[00:13:00] Speaker 00:
I do have a few points that I just want to make sure the Court considers before their decision.

[00:13:09] Speaker 00:
In the legacy system, the record contains everything that the VA receives.

[00:13:14] Speaker 00:
And here, again, because no decision had occurred, the extra evidence should have been remanded back to the agency, the lower agency, for the supplemental statement of the case, per the statute 7105, E1.

[00:13:31] Speaker 00:
Equitable tolling is only applicable if the decision is actually made and he actually receives it.

[00:13:36] Speaker 00:
And I would just, the last point that I would make is that I would ask the court to consider that this is no different than if the VA had prepared the report and never put it in the mailbox.

[00:13:47] Speaker 00:
This is the exact same from a practical standpoint.

[00:13:52] Speaker 00:
If that had occurred, then there can be, I think it would be a stretch to say that decision had been made.

[00:13:59] Speaker 00:
Simply because the findings of fact and conclusions of law were made does not make a decision

[00:14:05] Speaker 02:
Does the statute say when it's not mailed, there's no final decision?

[00:14:11] Speaker 00:
It doesn't say that, Your Honor.

[00:14:12] Speaker 00:
But we think, again, that because 7104D has that final step of mailing it to the last known address, here we know that they VA knew of a different last known address.

[00:14:25] Speaker 00:
They never sent it to him until 2020 when they sent the second report that

[00:14:30] Speaker 00:
as we put in our brief and argued to the Veterans Court.

[00:14:33] Speaker 00:
They applied the wrong rules.

[00:14:35] Speaker 00:
They applied the wrong record.

[00:14:36] Speaker 00:
They held them to a different standard of a reconsideration under 5108 as opposed to an original claim.

[00:14:42] Speaker 00:
So with that, we thank the court and ask to set aside the court's decision and remand for a supplementary statement of the case.

[00:14:53] Speaker 04:
I thank both counsels.

[00:14:54] Speaker 04:
This case is taken under submission.