[00:00:00] Speaker 03:
Our first argument of the morning is docket number 22-1528, Sippl's versus McDonough.

[00:00:09] Speaker 03:
Let's see here.

[00:00:10] Speaker 05:
Is it Sippl's or Seifel's?

[00:00:11] Speaker 05:
Seifel's, Your Honor.

[00:00:12] Speaker 03:
Seifel's.

[00:00:13] Speaker 03:
Thank you.

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

[00:00:14] Speaker 03:
Thank you.

[00:00:14] Speaker 03:
Okay.

[00:00:15] Speaker 03:
And Mr. Dohaquiz?

[00:00:18] Speaker 05:
Yes, Your Honor.

[00:00:19] Speaker 03:
Okay, you reserve three minutes, yes?

[00:00:20] Speaker 05:
Yes, Your Honor.

[00:00:21] Speaker 03:
Okay, please begin whenever you're ready.

[00:00:25] Speaker 05:
I want to thank the court for this opportunity to present his appeal today.

[00:00:33] Speaker 05:
Before this court is an appeal from the Veterans Court on an issue of clear and mistakeable error and what law applies when the board reviews that error.

[00:00:45] Speaker 05:
The Veterans Court held, like Judge Toast did in Percivali, that because the legal issue was not settled at the time of the prior AOJ decision, it cannot be cued.

[00:00:54] Speaker 05:
But just as this court found Judge Toast's ruling in Percivali wrong, it should also find his ruling in this case wrong.

[00:01:01] Speaker 05:
And we emphasize that Judge Tote essentially made the same ruling in both this case and in Percivali.

[00:01:07] Speaker 05:
Although Q cannot lie where there has been a change in law, this court held that in Percivali, that Q can be based on the plain meaning of the regulation, regardless of later changes in law or later decisions by the agency or a court.

[00:01:21] Speaker 03:
I guess the question is, what does it mean?

[00:01:24] Speaker 03:
for there to be a legal-based cue based on just the language of the regulation alone.

[00:01:32] Speaker 03:
I guess it sounded like to me from your briefing that if you felt like if there is one correct interpretation, then any other interpretation would be cue.

[00:01:49] Speaker 03:
Is that kind of the way to

[00:01:52] Speaker 03:
capture your understanding?

[00:01:54] Speaker 05:
Yes, Your Honor.

[00:01:55] Speaker 03:
And so therefore, if we were to read the Burton Veterans Court opinion as announcing the correct interpretation, I think that's debatable.

[00:02:06] Speaker 03:
But let's say it did.

[00:02:08] Speaker 03:
Then you're saying that that just retroactively applies to the 2004 RO decision here.

[00:02:15] Speaker 03:
And because that decision in 2004 did not apply the Burton interpretation,

[00:02:22] Speaker 03:
the VA was, that was clearly an unmistakable error.

[00:02:28] Speaker 05:
Mostly, Your Honor, I would not classify it as a retroactive application of the Burton Ruling.

[00:02:37] Speaker 05:
There was really no Burton Ruling in 2004.

[00:02:40] Speaker 05:
That's correct, Your Honor.

[00:02:41] Speaker 05:
What we had in 2004, relative to this issue, were two sources of law.

[00:02:47] Speaker 05:
One was the old general counsel opinion 9-98.

[00:02:51] Speaker 05:
which I think we all agree compels the VA to consider, and we would go so far as to say, separately rate his limited motion.

[00:02:58] Speaker 05:
That's been well established since, as Percivali pointed out.

[00:03:02] Speaker 03:
We will assume for the moment that the Court concludes that the VA General Counsel 1998 opinion is not so clear as to whether 4.59 applies to non-arthritis claims.

[00:03:19] Speaker 05:
I do not read or necessarily argue that 9-98 by itself compels 4.59 to apply to non-arthritic joints.

[00:03:32] Speaker 05:
I think that the issue is or was in 2004 unsettled.

[00:03:38] Speaker 05:
There was no official authoritative legal ruling, either by the general counsel or by any court, that compelled the VA to apply 4.59.

[00:03:49] Speaker 05:
But equally, there was no legal rule that said they did not have to.

[00:03:54] Speaker 01:
And that's really what- What is your view on any non-presidential opinions coming out of the Veterans Court that held that

[00:04:05] Speaker 01:
the regulation was not applicable to someone who didn't have arthritis.

[00:04:10] Speaker 01:
Would those be authoritative in your view?

[00:04:13] Speaker 05:
No, Your Honor, because they're non-precedential.

[00:04:15] Speaker 05:
And under the court's rules and just general jurisprudence, they don't apply outside of the specific holding in that case.

[00:04:24] Speaker 05:
And to the extent that they're wrong, a later formal interpretation that is binding, that is presidential, would control.

[00:04:32] Speaker 05:
And so even though the court may have gotten it wrong in non-precedential opinions, that interpretation does not reach back.

[00:04:40] Speaker 05:
and as Burton suggested.

[00:04:43] Speaker 01:
So these are contemporaneous, like opinions that were written maybe shortly before or shortly after 2004.

[00:04:50] Speaker 01:
Non-clarified, non-presidential.

[00:04:56] Speaker 05:
Non-presidential, Your Honor, we think has no bearing on how to interpret the regulation.

[00:05:01] Speaker 01:
Even though in those situations the Veterans Court was

[00:05:07] Speaker 01:
interpreting the regulation.

[00:05:08] Speaker 01:
Your view is, because it's non-presidential, you can't treat that as the law that existed at the time of the 2004 decision.

[00:05:19] Speaker 05:
That's correct, Your Honor.

[00:05:20] Speaker 01:
Could you, though, on the other hand, treat it as something that at least, at a minimum, shows that it's not clear and unmistakable that the Burton Rule applied?

[00:05:30] Speaker 05:
No, Your Honor, because if it's contrary to what the regulation says, then it is clear and unmistakable error.

[00:05:38] Speaker 05:
And so we're bound by the words of the regulation.

[00:05:43] Speaker 05:
In 4.59, whether Burton officially, unambiguously says that it applies to non-arthritic joints or not, which I think it does,

[00:05:53] Speaker 05:
or not is what controls.

[00:05:57] Speaker 05:
And just because a prior non-precedential, non-binding decision got that wrong, that decision does not bind anybody at the VA.

[00:06:07] Speaker 03:
Well, I guess we're trying to understand what does it mean to be undebatable error.

[00:06:13] Speaker 03:
And my understanding of the Veterans Court opinion here is that it looked at the face of 4.59 and its language

[00:06:23] Speaker 03:
and felt like just on its face it's not so undebatably clear that it applies to non-arthritis claims and it goes beyond arthritis claims.

[00:06:39] Speaker 03:
And what I'm trying to figure out is what was wrong with that analysis.

[00:06:43] Speaker 03:
We have to go back in time to 2004.

[00:06:47] Speaker 03:
So we pretend Burton doesn't exist.

[00:06:50] Speaker 03:
And just based on what an RL adjudicator had, and let's take it for granted for right now, that there was no settled meaning.

[00:07:00] Speaker 03:
There was no controlling meaning.

[00:07:02] Speaker 03:
and you're that ROI adjudicator, why do we necessarily say that no reasonable mind, no reasonable adjudicator of the VA at the time could have read 4.95, 4.59 to be just about arthritis?

[00:07:22] Speaker 03:
The first words out of the regulation is it's talking about arthritis and therefore it looks arthritis-centric.

[00:07:33] Speaker 05:
It is your honor and and I mean I would point out to that the title of the regulation is limited or painful motion It doesn't have anything to do with arthritis But that aside we're just like now though.

[00:07:45] Speaker 03:
I mean, it's a different inquiry What is correct and incorrect as a matter of law after exhausting all?

[00:07:52] Speaker 03:
Interpretive tools and then come back to interpretation.

[00:07:55] Speaker 03:
In fact, this is something much more limited to try to figure out whether something was so

[00:08:03] Speaker 03:
un-debatably clear that no reasonable mind without any guidance would have believed one thing over another.

[00:08:12] Speaker 05:
Right, Your Honor.

[00:08:12] Speaker 05:
And so my response to that is, in George, the Supreme Court, as pointed out from Percivali, and I'm reading here from Percivali, it is clear from the Supreme Court's decision in George that the correct Q inquiry is simply whether the original decision was a correct application of a binding regulation

[00:08:30] Speaker 05:
That's the inquiry.

[00:08:32] Speaker 05:
If the regulation's ambiguous, it's irrelevant to what is its meaning.

[00:08:38] Speaker 05:
Once an authoritative source, whether it's a general counsel opinion by the VA, or a presidential decision by one of the courts, or as in George, a regulation which interpreted the statute, once that interpretation is issued, that's when it's binding.

[00:08:56] Speaker 05:
That's the interpretation.

[00:08:57] Speaker 03:
So I'm doing some best points going forward.

[00:08:59] Speaker 05:
Well, no, Your Honor, because, again, going back to Glover, the Veterans Court for the very first time interpreted the regulation and said, based on this interpretation, there was no cue.

[00:09:14] Speaker 05:
And this court affirmed and endorsed that rule of law that we can interpret it today

[00:09:22] Speaker 05:
in an appeal addressing whether the cue was committed under the correct interpretation of that regulation.

[00:09:30] Speaker 03:
And so the inquiry is what does the regulation... I think the trouble I'm having with this is that you seem to be thinking an erroneous interpretation is automatically a clear and erroneous, a clear and unmistakable error.

[00:09:48] Speaker 03:
And I don't think that's necessarily true here under the circumstances.

[00:09:52] Speaker 03:
I think the kind of error we're looking for, even for a legal-based error, has to be clear and unmistakable.

[00:10:02] Speaker 03:
And so there's a higher threshold that you have to persuade the VA with when it comes to a legal-based error.

[00:10:14] Speaker 03:
That's true, Your Honor.

[00:10:17] Speaker 03:
That's why I'm trying to understand what was so wrong about what the Veterans Court did here when they were searching through that regulation and thinking to themselves, well, it's not so undebatably clear in 2004, even if in 2011 there was a definitive interpretation.

[00:10:36] Speaker 03:
Back in 2004, when there was no settled meaning, why was it so

[00:10:41] Speaker 03:
extra very clear that this regulation could only be understood one way such that it was clear and unmistakable error to read it a second way.

[00:10:52] Speaker 05:
The error is not in how the AOJ interpreted the regulation.

[00:10:57] Speaker 05:
The error is, or could have interpreted the regulation.

[00:11:00] Speaker 05:
The error is that the regulation requires the VA to rate, to apply 4.59 to all joints, whether there's arthritis or not.

[00:11:11] Speaker 05:
We know that because that's what the ruling in Burton says.

[00:11:13] Speaker 05:
And I think that just an analysis of the language from the regulation compels that result.

[00:11:21] Speaker 01:
I have a hard time understanding why you're not asking for a retroactive application burden.

[00:11:27] Speaker 01:
Like, now that we know it, it's so clear the government changed its position.

[00:11:31] Speaker 01:
And now that we know it and it's so clear, it should be applied and the regulations should be read as if it always was read that way.

[00:11:40] Speaker 01:
Right?

[00:11:41] Speaker 05:
I am not asking, Mr. Cyples is not asking for a retroactive application.

[00:11:47] Speaker 05:
What we're asking the court to do is to assess what did 4.59 say and what did it require in 2004 when there was no authoritative binding interpretation by any agency or court opinion.

[00:12:06] Speaker 05:
We can't ignore burdens holding because it's reality.

[00:12:11] Speaker 05:
And so I think I struggled in arguing this for that specific reason because, again, in Grubber, the court contemporaneously interpreted the regulation.

[00:12:24] Speaker 05:
And I don't think that there's any reason to treat the two cases differently.

[00:12:28] Speaker 05:
when an interpretation is done while reviewing for Q on a regulation that's never been interpreted.

[00:12:36] Speaker 01:
I hear what you're saying.

[00:12:38] Speaker 01:
Hypothetically, if this interpretation and Burton's was one that was so clear, and maybe there was no contrary interpretations ever having been made by the government or by the Veterans Court as affirmed by the Federal Circuit,

[00:12:58] Speaker 01:
Maybe then I could understand your point.

[00:13:01] Speaker 01:
But my problem is that, in this case, it doesn't seem undebatable how it would have been interpreted in 2004 because of the existence of these other, albeit non-practice, opinions that interpreted it differently, combined with

[00:13:22] Speaker 01:
the fact that even during Burton, the government changed its position.

[00:13:25] Speaker 01:
And it wasn't until the government changed its position that the interpretation in Burton became clear.

[00:13:30] Speaker 01:
So why don't those things show that it is debatable what would have happened in 2004?

[00:13:35] Speaker 05:
Because we're not, Your Honor, we're not looking at whether the interpretation is or is not debatable.

[00:13:40] Speaker 05:
We're looking at whether the

[00:13:43] Speaker 05:
The error is undebatable.

[00:13:45] Speaker 05:
And to look at that, we have to know what the regulation requires, which requires the court to apply the plain meaning of the regulation.

[00:13:54] Speaker 02:
I'm not sure I understand the difference between saying the interpretation was wrong and that there was an error.

[00:14:01] Speaker 02:
That distinction moves me.

[00:14:04] Speaker 05:
Under the cue, Your Honor, and under the case law, the analysis is if an error factor law

[00:14:12] Speaker 05:
was made that would have manifestly changed the outcome.

[00:14:17] Speaker 05:
And here, if they applied the wrong interpretation of the regulation, and by applying the correct interpretation, he would have been entitled to additional ratings, then he's established a clear and unmistakable error.

[00:14:31] Speaker 02:
What forced you to attribute to Ferguson and Lipton-Fells

[00:14:38] Speaker 02:
both of which have language in them that suggests that the regulation applies to arthritis exclusively.

[00:14:50] Speaker 05:
Your Honor, my response, as we said in our reply brief, is that those two cases only dealt with arthritis.

[00:14:57] Speaker 05:
They did not consider a non-arthritic joint.

[00:15:01] Speaker 05:
In particular, Lichtenfeld talks about Diagnostic Code 5003 and 4.59, and Ferguson was looking at Diagnostic Code 5002.

[00:15:10] Speaker 02:
But I think if I were a regional office employee looking at those cases,

[00:15:17] Speaker 02:
I think I would probably read that language as suggesting that the regulation is limited to arthritis, particularly when read in light of the language of the regulation, which in the first sentence talks about arthritis.

[00:15:32] Speaker 05:
That may be, Your Honor, but if it's contrary to what the regulation says, it's irrelevant.

[00:15:38] Speaker 02:
That's the question.

[00:15:43] Speaker 02:
But the problem is that regulation, it seems to me,

[00:15:47] Speaker 02:
ambiguous.

[00:15:49] Speaker 02:
It's language.

[00:15:49] Speaker 02:
You wouldn't dispute that, I take it.

[00:15:52] Speaker 05:
I would not dispute a charter.

[00:15:55] Speaker 02:
Right.

[00:15:55] Speaker 02:
So can a arguably

[00:15:59] Speaker 02:
erroneous interpretation at the time of an ambiguous statute be clear and unmistakable error?

[00:16:07] Speaker 02:
That's the question.

[00:16:07] Speaker 02:
Yes, Your Honor.

[00:16:08] Speaker 05:
And that's our position.

[00:16:09] Speaker 05:
And if we affirm what the Veterans Court did here, then that means that for every single ambiguous regulation, there can never be cue until somebody has looked at it, the court has looked at it, or the general counsel has looked at it and said, this is now what the regulation means.

[00:16:26] Speaker 05:
And I don't think that that's what Congress envisioned

[00:16:29] Speaker 05:
when they created a clear and unmistakable error to carve out an entire swath of laws that are ambiguous, via regulations, are filled with ambiguity.

[00:16:41] Speaker 05:
And it's hard to parse through all these kinds are notwithstanding and finding the best interpretation that the courts are required to do.

[00:16:52] Speaker 05:
But I understand.

[00:16:54] Speaker 03:
You've used up all your time, and we'll try to give you a little time for the final.

[00:16:59] Speaker 03:
Thank you, Your Honor.

[00:17:00] Speaker 03:
All right, let's hear from the government.

[00:17:14] Speaker 04:
Thank you.

[00:17:14] Speaker 04:
Good morning, and may it please the court.

[00:17:16] Speaker 04:
In George V. McDonough, the Supreme Court held that clear and unmistakable error must be based on the record and the law that existed at the time of the prior VA decision.

[00:17:26] Speaker 04:
This unambiguous holding does not distinguish between a first interpretation or a change in interpretation.

[00:17:32] Speaker 04:
It simply means that a legal development that post dates that comes after the initial decision that is under review cannot be a basis for Q.

[00:17:41] Speaker 04:
Here, that means that Mr. Cyples cannot establish Q in a 2004 rating decision based on a legal development that happened seven years later in 2011.

[00:17:52] Speaker 04:
And the court should affirm as a result.

[00:17:54] Speaker 02:
Let me see if I understand the effect of Burton, given the way Burton came up.

[00:18:03] Speaker 02:
As I understand Burton, it was not a decision of the Veterans Court that the regulation was

[00:18:12] Speaker 02:
clearly applicable beyond arthritis.

[00:18:15] Speaker 02:
It was the Veterans Court.

[00:18:16] Speaker 02:
What the Veterans Court was saying, as I read it, is the Secretary has come in and said, this is the way we now read this regulation, and we will defer to the Secretary's interpretation.

[00:18:30] Speaker 02:
What significance do you attach to the fact that that was not a court decision saying, this is the regulation properly read, but rather, this is an issue that we will defer?

[00:18:42] Speaker 02:
And a second part of that question is, to the extent that you know, was the Secretary saying, or was there anything in the record of Burton indicating that the Secretary's position was a new position from the Secretary, or was this the Secretary saying, this has been the proper reading of the regulation all along?

[00:19:04] Speaker 04:
So I'll start with the second question, Judge Bryson.

[00:19:08] Speaker 04:
This was a new position by the secretary.

[00:19:11] Speaker 04:
The facts of Burton demonstrate that, because initially before the Veterans Court, the secretary took the position that Section 459 does not apply outside the arthritis context.

[00:19:22] Speaker 04:
and the Veterans Court by a single judge agreed.

[00:19:26] Speaker 04:
The single judge said that is a reasonable interpretation of 459.

[00:19:30] Speaker 03:
How do we know that position is attributable to the VA secretary and not just the RO adjudicator?

[00:19:36] Speaker 03:
I mean, obviously it was the RO adjudicator who denied

[00:19:40] Speaker 03:
the claim under 4.59 based on an understanding that it doesn't apply to non-arthritis claims.

[00:19:46] Speaker 03:
And then in the middle of the stream of litigation, then the VA stepped in and adopted a different interpretation.

[00:19:57] Speaker 03:
But how do we know that the initial interpretation was the VA secretary's interpretation and not just a line adjudicator?

[00:20:06] Speaker 04:
The question is in burden itself.

[00:20:08] Speaker 04:
Yeah.

[00:20:09] Speaker 04:
I'm not sure we know that, but I do think that by the time it gets to the Veterans Court, the Secretary develops an agency position on the meaning of the regulation.

[00:20:20] Speaker 02:
Go ahead.

[00:20:21] Speaker 04:
Please finish.

[00:20:22] Speaker 04:
So just to finish my answer to your question, Judge Bryson.

[00:20:25] Speaker 04:
So initially, the Secretary took the position that 459 applies only to arthritis.

[00:20:30] Speaker 04:
The Veterans Court single judge adopted that interpretation as a reasonable interpretation of the regulation.

[00:20:37] Speaker 04:
The veteran then petitioned for a panel decision.

[00:20:40] Speaker 04:
And at that stage, the secretary changed the position and said 459 should apply to non-orthritis claims as well.

[00:20:50] Speaker 04:
And at that point, as you correctly pointed out, the Veterans Court then said, that is also a reasonable interpretation of this regulation, which admittedly is quite ambiguous.

[00:20:59] Speaker 04:
We will adopt this new interpretation going forward.

[00:21:03] Speaker 04:
So to answer your first question, if I may, about the significance, the way Bowdoin was decided is not particularly significant to how Section 459 will be applied going forward.

[00:21:17] Speaker 04:
But for Q purposes, where what we have to do is put ourselves in the shoes of the original VA adjudicator

[00:21:25] Speaker 04:
and understand the law that existed at the time of that original adjudication, I think it's hugely significant that the Veterans Court never said in Burton that the regulation, Section 459, plainly means it goes outside the arthritis context.

[00:21:41] Speaker 04:
I think it's very significant that the Veterans Court simply deferred to the Secretary's reasonable interpretation of the regulation.

[00:21:48] Speaker 04:
That shows us that it's not the kind of interpretation that can give rise to cue.

[00:21:56] Speaker 03:
So based on your opening statement, I want to make sure I understand the government's view.

[00:22:06] Speaker 03:
In Percia Valley 2, the Federal Circuit panel decision, this court said there can be error for purposes of cue just based on the language of the regulation itself.

[00:22:25] Speaker 03:
So I take it that you would agree that what that means is there can be RO applications of a regulation that are just facially erroneous, that are just undebatably clear that the RO had a misunderstanding of the regulation.

[00:22:48] Speaker 04:
Yes, there can be.

[00:22:48] Speaker 04:
And that would satisfy the Q standard?

[00:22:53] Speaker 04:
In some circumstances, certainly.

[00:22:54] Speaker 04:
And as we pointed out, if you have a situation in which what you're dealing with is a regulation that had never been interpreted before, and the RL adjudicator is going into it blind, essentially interpreting this regulation for the very first time, and that interpretation is plainly, unambiguously,

[00:23:13] Speaker 04:
clearly and unambiguously inconsistent with the text of the regulation.

[00:23:19] Speaker 04:
Yes, you certainly can have Q. What if hypothetically in Burton

[00:23:25] Speaker 03:
the Veterans Court didn't, in a presidential opinion, didn't just simply defer to the Secretary's new understanding of 4.59, but instead the Veterans Court elected to undertake a definitive interpretation and used all available interpretive tools and then concluded

[00:23:51] Speaker 03:
after that searching inquiry, the regulation is unambiguous.

[00:23:55] Speaker 03:
It includes non-authorized claims.

[00:23:59] Speaker 03:
And so therefore, it is clear.

[00:24:03] Speaker 03:
Would such a holding inform us that, well, okay, now we have an adjudication that this

[00:24:13] Speaker 03:
provision is clear and so therefore it's clear and unmistakable error for anyone at any time to have had a contrary conception of the regulation.

[00:24:26] Speaker 03:
I guess I'm trying to understand what do we mean by Q and if something is deemed to be unambiguous then it was always unambiguous, it was always clear and so why wouldn't it be

[00:24:41] Speaker 04:
So that's a very different case, Judge Chen, but I would say that even under that hypothetical scenario, Mr. Seipel still would not be able to show cue, and I say that for two reasons.

[00:24:55] Speaker 04:
The first one is when we have to look whether the error was based on the law and the facts that existed at the time of the original adjudication.

[00:25:02] Speaker 04:
We're not only looking at the text of the regulation, we're looking at the entire legal landscape surrounding that regulation.

[00:25:09] Speaker 03:
Okay, so let's assume, again, in 2004 there was no settled meaning, there was no authoritative interpretation.

[00:25:16] Speaker 03:
Okay, so in other words... He always left to his own view of trying to apply the regulation the best he can.

[00:25:28] Speaker 04:
So in other words, under this hypothetical, the Ferguson and Lichtenfeld cases that we point to also don't exist.

[00:25:35] Speaker 04:
So under that scenario, my answer would be that the court would still have to determine whether the error was undebatable based on the text of the regulation itself, which is a higher bar.

[00:25:50] Speaker 04:
If Burton were to decide the way you just described,

[00:25:54] Speaker 04:
It would be a decision that the RO committed error in 2004.

[00:26:00] Speaker 04:
But Q is not bound variety error.

[00:26:02] Speaker 04:
Q has to be undebatable error.

[00:26:05] Speaker 04:
The question then becomes, as this court has explained the standard in both George and then before that in Will's EVP,

[00:26:14] Speaker 04:
Is it so clear-cut, this error, that no reasonable adjudicator could have reached the conclusion that the adjudicator here reached?

[00:26:22] Speaker 04:
That's what undebatable error means.

[00:26:24] Speaker 03:
And what I'm trying to explore with you right now is what's the delta between what I call the Chevron step one inquiry of ambiguity, non-ambiguity,

[00:26:35] Speaker 03:
And this other Q inquiry for the interpretive exercise that an RO adjudicator had to undertake in 2004.

[00:26:47] Speaker 03:
And I take it that you think the RO was burdened with a level of inquiry that's something less than the exhaustive Chevron step one inquiry.

[00:26:57] Speaker 03:
But exactly what is it that's

[00:27:01] Speaker 03:
that the auto adjudicator had to undertake in order to satisfy this reasonable mind.

[00:27:07] Speaker 03:
No reasonable mind could have understood the regulation.

[00:27:11] Speaker 04:
So I would say if you have a regulation that can be interpreted in multiple ways,

[00:27:17] Speaker 04:
And let's put 4.59 to the side for a moment, which I think is pretty clearly ambiguous.

[00:27:22] Speaker 04:
I think even my friend on the other side said as much just a few minutes ago.

[00:27:26] Speaker 03:
Could be interpreted in multiple ways.

[00:27:28] Speaker 03:
And this is where I start thinking again about Chevron and my hypothetical that Burton, the veterans court said, it can't be interpreted in multiple ways because I've just undertook the interpretive exercise to conclude that it's clear and unambiguous and can only be understood in one way.

[00:27:47] Speaker 04:
So I think it would also depend on what this hypothetical burden opinion would hold.

[00:27:53] Speaker 04:
There's one way it can hold.

[00:27:55] Speaker 04:
And it can say, this language is so clear cut that it can only mean one thing.

[00:28:01] Speaker 04:
But it can also say, this language has some ambiguities.

[00:28:04] Speaker 04:
We've used our tools of statutory and regulatory interpretation.

[00:28:08] Speaker 04:
And we've decided that this is the best way to interpret it.

[00:28:13] Speaker 04:
I think the former may be subject to cue, but the latter may not be.

[00:28:21] Speaker 04:
Because if there's multiple possible interpretations, and the secretary chose one, or it wouldn't be the secretary in this case, it would be the VA, RO adjudicator, chose one versus the other, sure, a subsequent case held that a different interpretation was the correct one.

[00:28:40] Speaker 04:
But if there are ambiguities,

[00:28:42] Speaker 04:
And if a reasonable adjudicator could possibly have reached the conclusion that the adjudicator in this case reached, then it's not the kind of undebatable error that would be subject to Q. So I don't know what to call it.

[00:29:00] Speaker 03:
It's an abbreviated form of the Chevron analysis?

[00:29:05] Speaker 03:
So instead of quick cut first take analysis and then see if the regulation hits you over the head with one understanding versus another?

[00:29:15] Speaker 04:
Sort of.

[00:29:16] Speaker 04:
I would say that the question whether the regulation is ambiguous is an important one for Q, but it's only the beginning of the analysis.

[00:29:26] Speaker 04:
because if the regulation is unambiguous, then I think you're more likely to prove Q as a claimant coming in after.

[00:29:36] Speaker 04:
You're not conceding that it would be Q. Well, not necessarily in the Chevron sense.

[00:29:42] Speaker 04:
That's right.

[00:29:42] Speaker 04:
You do have other Q requirements.

[00:29:44] Speaker 04:
For instance, it has to be outcome determinative, which is not something we've discussed at all.

[00:29:48] Speaker 04:
But if you do have an ambiguous regulation, I think as long as

[00:29:54] Speaker 04:
The RO adjudicator's position was a reasonable one within that realm of ambiguity.

[00:30:01] Speaker 04:
I don't think Q can be established, because it's simply not the kind of undebatable error that can give rise to Q. With that, we ask for the court to affirm the Veterans Court's decision.

[00:30:16] Speaker 04:
Thank you.

[00:30:19] Speaker 03:
OK.

[00:30:20] Speaker 03:
Let's give Mr. Dohaka two minutes.

[00:30:25] Speaker 05:
Thank you, Your Honor.

[00:30:26] Speaker 05:
I appreciate that.

[00:30:27] Speaker 05:
I want to start by addressing your hypothetical, Judge Chen, and discussing how to interpret a regulation.

[00:30:36] Speaker 05:
When we're looking at an ambiguous or a tough to interpret regulation,

[00:30:41] Speaker 05:
That's the court's job.

[00:30:42] Speaker 05:
That's what Loper-Bright said.

[00:30:43] Speaker 05:
That's what Kaiser said.

[00:30:44] Speaker 05:
And I think that ambiguity is kind of a red herring, because whether it's ambiguous or not, under Kaiser and that analysis, and particularly now with Loper-Bright and statutes, there is no more ambiguity.

[00:30:57] Speaker 05:
It's just what is the best meaning.

[00:30:59] Speaker 05:
And so a ruling that in a regulation which would also extend to statutes that is a little unclear cannot be queued really

[00:31:10] Speaker 05:
I also want to just pull back a little bit on my concession that this regulation is ambiguous because with Kaiser, that has changed the analysis, and I think that

[00:31:30] Speaker 05:
when we look at it through the lens and through the rules of Kaiser, then it's not entirely clear that there is ambiguity here.

[00:31:35] Speaker 05:
And I think that it's more of a plain meaning of the regulation, which they didn't have the benefit of at that time.

[00:31:42] Speaker 02:
So are you suggesting that the plain meaning of this regulation is that it applies not only to arthritis, but outside the arthritis context as well?

[00:31:50] Speaker 05:
Yes, Your Honor.

[00:31:51] Speaker 05:
That's my position.

[00:31:53] Speaker 05:
And for a lot of the reasons that Burton established them.

[00:31:56] Speaker 02:
But again,

[00:31:59] Speaker 02:
Burton, the case, as opposed to Burton, the secretary's decision, was an issue of deference.

[00:32:06] Speaker 02:
Nothing in Burton, nothing since Burton, to my knowledge, has said, to the extent that we ever suggested that this regulation applied only to arthritis, how could we have done it if we were clearly wrong?

[00:32:19] Speaker 02:
I mean, that's not your position, is it?

[00:32:22] Speaker 05:
I'm not sure I understand what you're saying.

[00:32:24] Speaker 02:
Well, in other words, I'm trying to probe

[00:32:26] Speaker 02:
Your suggestion that this regulation is not and never was ambiguous.

[00:32:32] Speaker 02:
It applied across the board, notwithstanding the use of the language in the first sentence of the regulation referring to arthritis.

[00:32:40] Speaker 05:
That's my position.

[00:32:41] Speaker 05:
Yes, Your Honor.

[00:32:43] Speaker 05:
And I think that if you look at it through the rules and the analysis of Kaiser, that the courts would establish that that is the best meaning of it, also incorporating some of the guidance given in Loper-Brite.

[00:32:55] Speaker 05:
But we have to remember, too, that Burton did not overrule anything that the VA had established.

[00:33:02] Speaker 05:
And it wasn't until they showed up to court, and as the secretary just conceded up here,

[00:33:07] Speaker 05:
that it was not until they showed up to court at Burton's appeal that they established the first wrong interpretation and now the correct interpretation.

[00:33:16] Speaker 05:
And he also conceded there was no evidence of any interpretation up until that point.

[00:33:21] Speaker 05:
And so thank you for this.

[00:33:23] Speaker 05:
We just ask that the Court find that the Veterans Court misapply the rule of law with respect to Q and reverse.

[00:33:31] Speaker 05:
Thank you.

[00:33:31] Speaker 05:
Thank you very much.

[00:33:32] Speaker 05:
The case is submitted.