[00:00:00] Speaker 03: And that leads to our third case, number 21-2202, Altgeld v. Collins. [00:00:07] Speaker 02: Thank you, Your Honor. [00:00:08] Speaker 02: And may it please the Court. [00:00:10] Speaker 02: Mrs. Altgeld respectfully submits that the Veterans Court erred when it held that an informal original claim essentially must already be reduced to writing when made. [00:00:22] Speaker 02: The Veterans Court erred because until more restrictive regulations took effect in March 2015. [00:00:27] Speaker 03: So where is the oral? [00:00:30] Speaker 03: You say that an oral claim reduced to writing by the VA would qualify. [00:00:38] Speaker 03: That's basically your position, right? [00:00:40] Speaker 03: That's the way of getting around Rodriguez. [00:00:44] Speaker 02: Not necessarily an oral claim reduced to writing, Your Honor, but a communication or action. [00:00:48] Speaker 03: A communication that gets reduced to writing. [00:00:50] Speaker 03: The reduction to writing could occur by the VA. [00:00:53] Speaker 03: It doesn't have to be by the claimant, right? [00:00:55] Speaker 02: That's correct, Your Honor. [00:00:56] Speaker 03: Okay. [00:00:57] Speaker 03: So where here is there some indication that there was a communication of a claim to the VA, which was recorded by the VA as a claim? [00:01:08] Speaker 03: I'm just not seeing that. [00:01:10] Speaker 02: At a minimum, on March 22, 2010, Captain Altgeld submitted to what was put into VA's record, the administrative record, as an Agent Orange Program Compensation and Pension Examination Consult, appendix 67 to 70. [00:01:29] Speaker 02: We're on appendix page 70. [00:01:31] Speaker 02: It's being assessed that Captain Altgeld had difficulty with higher level cognitive functions and balance impairment that [00:01:40] Speaker 02: as the claim. [00:01:41] Speaker 03: How is that a claim? [00:01:45] Speaker 02: It is an indication of Captain Altgeld's intent to apply for compensation. [00:01:51] Speaker 02: His submitting to a compensation and pension examination, Robert. [00:01:55] Speaker 02: And certainly, if your honor disagrees, I would note that Mrs. Altgeld is not asking this court to reach the up or down determination, whether [00:02:07] Speaker 02: in this case on the facts that was sufficiently indicating an intent to apply for benefits to be considered an informal original claim, but instead to remove the obstacle of the Veterans Court's categorical prohibition against anything but something already reduced to writing, constituting an informal original claim. [00:02:31] Speaker 02: And then what Mrs. Obdelt is requesting is that this court set aside that ruling [00:02:37] Speaker 02: remand for the Veterans Court than to address in the first instance, including to consider whether that determination, that more factual determination, should go back to the Board of Veterans Appeals for first instance adjudication under what Mrs. Altgeld submits as the correct understanding of pre-15 version of 38 CFR section 3.155A, any communication or action. [00:03:02] Speaker 01: Your understanding of that regulation is that there never has to be a writing or that the writing can occur sometime after the effective date of the application. [00:03:16] Speaker 02: In the initial brief to this court, at that time it was Captain Altgeld, took the position more broadly it could be something that was never reduced to writing. [00:03:27] Speaker 02: On further review here of the presence of Rodriguez, I could see where even a non-plural communication or action that was never reduced to writing could get gobbled up by that reasoning in Rodriguez. [00:03:42] Speaker 02: And so Mrs. Altgeld's position is that a communication or action later reduced to writing is enough, or can be enough rather. [00:03:51] Speaker 01: And therefore, your view is [00:03:53] Speaker 01: the effective date of the application can predate the date of the writing, correct? [00:03:59] Speaker 02: Yes, Your Honor. [00:04:01] Speaker 02: And the reason for the distinction or the distinguishing fact why Rodriguez is different is that a statement that was not reduced to writing, an oral statement, devolved into a he said, they said situation that in Rodriguez, this court was concerned with VA ever intending to create with this very big [00:04:21] Speaker 02: federal agency expecting folks there to remember what was said, to write down what was said, and then as different folks within that agency work on the claim, be able to refer to that. [00:04:31] Speaker 02: But when, as here, there has been a reduction to writing of whatever communication or action is from the veteran that leads to whatever comes, it's there. [00:04:41] Speaker 02: And it's easily referable to folks later, such as here, appendix page 67 to 70, the March 22, 2010. [00:04:49] Speaker 02: Agent Orange Program Compensation and Pension Examination Council. [00:04:53] Speaker 01: That was one of the issues that Rodriguez relied on, but it also relied on 3.1p's definition of claim, right? [00:05:04] Speaker 01: Which is a formal or informal communication in writing. [00:05:10] Speaker 02: Yes, Your Honor. [00:05:10] Speaker 02: So before 2015, the 38 CFR section 3.1p [00:05:15] Speaker 02: defined claim application as a formal or informal communication in writing, not been specifying whether it's something that had already been reduced to writing at the time or later was reduced to writing. [00:05:25] Speaker 02: And so that is how Mrs. Altgeld is distinguishing that aspect of Rodriguez and its reliance on 3.1p, where in Rodriguez, he had an oral statement that was never reduced to writing. [00:05:37] Speaker 03: When you say it could be reduced to writing later, do you mean contemporaneously or like five years later? [00:05:47] Speaker 02: certainly contemporaneously would be enough by VA. [00:05:51] Speaker 04: I could see- If it was contemporaneous, wouldn't you just look at the writing? [00:05:58] Speaker 02: Altgeld's position is yes, absolutely. [00:06:01] Speaker 03: The VA's position is that a VA writing would qualify, right? [00:06:06] Speaker 02: That's right. [00:06:06] Speaker 02: So here, at least part of the issue, I understand, and my friend will correct me if I'm wrong, but my understanding is that one of the reasons for the denial here is that it was a [00:06:15] Speaker 02: an examiner who made this note and not Captain Altgeld himself. [00:06:20] Speaker 02: But in terms of whether Captain, well in terms of whether the examiner. [00:06:25] Speaker 03: So come back to my question. [00:06:27] Speaker 03: Is part of your position that would have to be a contemporaneous writing or could five years later be sufficient? [00:06:34] Speaker 02: Five years later could be sufficient under the correct circumstances. [00:06:38] Speaker 02: However, that would, it would be a real problem to prove. [00:06:41] Speaker 02: Absolutely it would be for the appellant for the claimant in that case. [00:06:46] Speaker 02: And it would have to be [00:06:49] Speaker 02: I don't want to go so far to say it would have to be. [00:06:50] Speaker 03: That would seem to be pretty contrary to the purpose of the regulation to have a writing to say that it could be recorded five years later. [00:06:59] Speaker 02: Well, what I'm thinking of, Your Honor, is that VA does a lot of examinations. [00:07:03] Speaker 02: It contracts out a lot of examinations. [00:07:05] Speaker 02: These examiners are very busy. [00:07:06] Speaker 02: And so if there is a circumstance where a VA employee or a VA contractor does not get around the same day to writing up notes, [00:07:14] Speaker 02: But has the mental capacity and the mental recollection to be able to accurately transcribe that down the road, then as a principle of at least what's permitted under the law, that would work. [00:07:27] Speaker 03: When, in your view, was the communication reduced to writing here? [00:07:32] Speaker 02: Here, it was no later than when the March 22, 2010 Agent Orange Program Compensation and Pension Examination Consult was typed up, Your Honor. [00:07:44] Speaker 02: And that, I believe, was on Appendix page 70. [00:07:47] Speaker 02: But it would have been in 2010, fairly contemporaneously to when it occurred. [00:07:53] Speaker 01: Because the oral application, you would say, happened when? [00:07:56] Speaker 01: During that actual visit to the doctor? [00:07:59] Speaker 02: Yes, Your Honor. [00:08:00] Speaker 02: The communication or action of Captain Altgeld was submitting to this compensation and pension examination. [00:08:07] Speaker 02: then presenting himself for the purpose of getting checked out and believing as a veteran suffering from these symptoms that VA would then be accepting and processing him for disability compensation. [00:08:20] Speaker 02: VA already had conferred with him regarding pension, regarding health care, and so this then is conveying his or indicating his intent to apply for compensation as well. [00:08:35] Speaker 02: Your honors, I am confident that each of you, from your questions, understand the issues in this case. [00:08:40] Speaker 02: Mrs. Holtgeld stands by her briefing. [00:08:42] Speaker 02: I'd be happy to address any additional questions your honors have. [00:08:47] Speaker 03: OK. [00:08:47] Speaker 03: Thank you. [00:08:48] Speaker 03: Thank you. [00:08:48] Speaker 03: Mr. Yale. [00:08:55] Speaker 00: Thank you, Your Honor. [00:08:56] Speaker 00: May it please the court. [00:08:58] Speaker 04: Can I ask you a quick housekeeping question? [00:09:01] Speaker 04: Your brief challenges, Mrs. Altke, outstanding. [00:09:04] Speaker 04: Are you maintaining that? [00:09:06] Speaker 00: No. [00:09:07] Speaker 00: I believe claimant had a 28-J in this case. [00:09:12] Speaker 00: I think we had a footnote in our response brief that said if within the one-year period an application was filed, they filed a 28-J with the application, subsequently VA, [00:09:26] Speaker 00: determined that Mrs. Alcott would be an eligible beneficiary for accrued benefits. [00:09:36] Speaker 00: Obviously here, the determination was that there's no accrued benefits, but short answers were no longer challenging standing. [00:09:47] Speaker 00: Just on the regulation here and the interpretation of the regulation, [00:09:54] Speaker 00: For 25 years, Rodriguez has sort of been the governing standard. [00:09:57] Speaker 00: It sets out the requirements. [00:09:59] Speaker 00: Again, in this case, it's a little confusing because on page 25, Mrs. Alka points to sort of writings that quote, memorialized oral statements. [00:10:13] Speaker 00: But she's not actually saying, the board actually went through all of these statements, applied Rodriguez, found that there was no informal claim. [00:10:23] Speaker 00: And for multiple reasons, one reason being there's no intent that [00:10:29] Speaker 00: there was any sort of request for benefits. [00:10:33] Speaker 00: And so I guess one question is, where is this writing out there? [00:10:39] Speaker 00: And we think it's clear that under Rodriguez and under the plain language of 3.1p as well as 3.11155 that [00:10:49] Speaker 00: the informal claim has to be in writing. [00:10:52] Speaker 00: And we think that the board and the Veterans Court simply abide Rodriguez here. [00:10:57] Speaker 00: We don't think it would make any sense for there to be any sort of situation where a veteran could give an oral statement and then five years later, something is memorialized. [00:11:10] Speaker 00: I mean, even in that situation, there's eventually a writing. [00:11:14] Speaker 00: That could potentially be a claim, but it's that five years later, that's the document that you would look at. [00:11:20] Speaker 00: You would look at whether the requirements of the regulations were met. [00:11:24] Speaker 00: And again, that's been the governing standard for approximately 25 years. [00:11:30] Speaker 00: We think it's a workable standard. [00:11:32] Speaker 00: And even though Ms. [00:11:35] Speaker 00: Alcott claims to not be challenging Rodriguez, we think that, essentially, that's what's going on. [00:11:42] Speaker 03: So let's talk about hypothetical, where someone comes to the VA for an examination the way this happened. [00:11:52] Speaker 03: and says specifically to the examiner, I'm making a claim for disability compensation. [00:12:02] Speaker 03: And the examiner writes that down in the medical record, says the veteran is making a claim for disability compensation. [00:12:10] Speaker 00: Is that covered by Rodriguez, or is that a different issue? [00:12:15] Speaker 00: I mean, I think to some extent it's a different issue, because part of that would be, I mean, is that the medical professional actually putting it down into writing? [00:12:24] Speaker 00: Because under the regulations, the medical examiners are generally not the ones who are being able to submit an informal claim. [00:12:36] Speaker 00: It's submitted in the wrong place, you mean? [00:12:38] Speaker 00: Well, yeah, I mean, I think in general, the law on this is that VA doesn't want its medical examiners to be the ones that are submitting the claims. [00:12:53] Speaker 00: And so it has to come from either a friend or somebody else. [00:12:56] Speaker 00: But even in that situation, even if Rodriguez, even if that could possibly be an informal claim, you'd still have to go through the elements and determine [00:13:08] Speaker 00: whether or not it meets, is it in writing, does it identify the benefits and what not, and whether or not they're actually requesting compensation from the VA for disability compensation. [00:13:21] Speaker 00: Here, none of the writings that have been identified do that. [00:13:27] Speaker 00: And the board went through all of the ones that have been identified. [00:13:32] Speaker 00: So even if there could be some hypothetical possibility that a document arising from a medical examination could be an informal claim, that doesn't exist here. [00:13:44] Speaker 00: And the board went through all of the various documents that have been pointed to. [00:13:49] Speaker 00: I mean, even just to take one step back about the Agent Orange exam, [00:13:54] Speaker 00: I mean, even the documentation for that in Appendix 71 says it has a statement that says it will be necessary for you to file a claim. [00:14:03] Speaker 00: And so even if it was, which makes it abundantly clear that whatever was going on there, there still had to be a claim submitted. [00:14:12] Speaker 01: I don't think we have jurisdiction. [00:14:14] Speaker 01: I think this is one of your other arguments. [00:14:15] Speaker 01: I don't think we have jurisdiction over whether any particular document in this case [00:14:21] Speaker 01: shows the requisite intent. [00:14:23] Speaker 01: You agree with that? [00:14:24] Speaker 01: I completely agree with that, which raises... But we do have jurisdiction over the question that you've just been sort of talking around, I think, which is can reduction to a writing of an oral statement, can that ever satisfy the informal claim requirement? [00:14:43] Speaker 01: Should we be answering that question, or is your view that's an interesting question, but it's not presented here? [00:14:49] Speaker 00: Our position would be that's a hypothetical question that doesn't exist in this case at all. [00:14:55] Speaker 00: And really what it is is a backdoor challenge. [00:14:57] Speaker 00: It's a backdoor challenge to the factual determinations of the board, who went through the only writings in this case. [00:15:03] Speaker 00: So it's a way to attempt to get around the jurisdictional bar. [00:15:08] Speaker 00: But when you do that, you're left with nothing, because there's no... [00:15:12] Speaker 00: The question about an oral statement being reduced to writing in some situation, whether that could ever be a claim, that wasn't presented to the Veterans Court. [00:15:24] Speaker 00: And it doesn't exist here, because at some point, there has to be a writing that [00:15:30] Speaker 00: the veteran or the dependent would have to point to, which would be at the end of the line, the memorialization. [00:15:38] Speaker 00: There's a writing in any of these scenarios. [00:15:41] Speaker 00: And so the only writings that have been identified, the board went through and determined it didn't meet the elements of Rodriguez. [00:15:47] Speaker 00: And so there really is no legal question at the end of the day, and certainly not on the facts of this case. [00:15:54] Speaker 00: So it's just a... [00:15:56] Speaker 00: It would essentially be an advisory opinion on some hypothetical that could possibly come out of the Rodriguez requirements. [00:16:05] Speaker 00: But Rodriguez was applied here and easily covers the documents within this particular record. [00:16:13] Speaker 00: There's nothing further. [00:16:14] Speaker 00: We ask that the court either dismiss for jurisdictional grounds or affirm. [00:16:20] Speaker 03: Thank you. [00:16:20] Speaker 03: Thank you, Mr. Hill. [00:16:22] Speaker 03: Mr. Nile. [00:16:26] Speaker 02: Thank you, Your Honors. [00:16:27] Speaker 02: First, Judge Dyke, you had asked when the compensation and pension examination report was written up. [00:16:33] Speaker 02: Appendix page 7, Does Make Plan, was written up on March 22, 2010, the same day of the examination consult. [00:16:41] Speaker 02: I would like to respond briefly to the government's position that the issue that Mrs. Altgeld has been arguing is not actually before this court. [00:16:51] Speaker 02: She respectfully [00:16:53] Speaker 02: Summits it is, at appendix page 23, the Board of Veterans' Appeals is discussing two precedents, Rodriguez's precedents to it, and then a veteran's court decision in a case called Cervello. [00:17:07] Speaker 02: And Cervello involved an increased rating claim in the context that there was a compensation and pension examination, and remarks made there, and whether those remarks that were memorialized were used to writing in the context of that compensation examination report. [00:17:22] Speaker 02: or enough to trigger proceedings for total disability based on individual unemployability. [00:17:27] Speaker 02: What then-Captain Altgeld sought to argue to the Veterans Court was the board has a statutory duty to explain adequately its reasons or bases for all material issues of ball and fact. [00:17:42] Speaker 02: Why is this case not Cervello? [00:17:44] Speaker 02: Why is this not Cervello? [00:17:45] Speaker 02: And the Veterans Court at that point then responded, this isn't Sir Bello. [00:17:49] Speaker 02: This is Rodriguez. [00:17:50] Speaker 02: And that's why I work here, distinguishing from Rodriguez, Your Honors. [00:17:54] Speaker 02: And the Veterans Court's analysis beginning with Rodriguez and then that understanding of Rodriguez, this witnesses all Celts spin on things, but polluting or infecting its analysis from there, starts at appendix page 8 and goes through at least appendix page 10, where its view of Rodriguez, where you need right off the bat [00:18:14] Speaker 02: are already reduced to writing is then shaping how the Veterans Court then is addressing the rest of the issues that were on appeal to it. [00:18:22] Speaker 02: And so then if this court were to grant relief in setting aside the Veterans Court's misinterpretation of Rodriguez, the pre-2015 versions of 38 CFR section 3.155A and 3.1P, then it's [00:18:39] Speaker 02: It has conceptually downstream determination. [00:18:41] Speaker 02: Certainly, that word verse would be set aside in turn. [00:18:44] Speaker 02: And that is the request that Mrs. Altgeld asked of this court to set aside the Veterans Court's erroneous legal ruling and to remand with instructions for the Veterans Court to re-adjudicate the case in the first instance under the correct understanding of Rodriguez and these pre-2015 regulations. [00:19:05] Speaker 01: Are you saying you presented to the Veterans Court the question of whether the regulations allow an informal claim to be initiated by an oral statement at the time it's reduced in writing? [00:19:20] Speaker 01: Was that question presented to the Veterans Court? [00:19:23] Speaker 02: I believe it's a fair question whether it was adequately presented, Your Honor. [00:19:27] Speaker 02: Absolutely. [00:19:29] Speaker 01: Does that mean you can't point me to where you presented that question? [00:19:32] Speaker 02: I can point you to Cervelo, Cervelo, Cervelo. [00:19:34] Speaker 02: But I cannot point you to this is perhaps a failing of mine in presenting the case at the Veterans Court. [00:19:42] Speaker 02: But coming in and from my perspective, seeing just completely different facts in Rodriguez and so different, not then going through the analysis and centering it on Rodriguez as well as Cervelo. [00:19:53] Speaker 02: Um, I didn't see this case as straight up based or fellow case, you know, and honestly still do. [00:19:58] Speaker 03: Thank you. [00:20:00] Speaker 02: Thank you. [00:20:01] Speaker 03: Okay. [00:20:01] Speaker 03: Thank you.