[00:00:00] Speaker 04:
The next case for argument is 24-1461, Bumgarner versus Collins.

[00:00:08] Speaker 04:
Mr. Wells, good morning.

[00:00:09] Speaker 04:
Please proceed.

[00:00:12] Speaker 00:
Good morning, Your Honors.

[00:00:13] Speaker 00:
John Wells on behalf of Anita Bumgarner, who is the widow of Sergeant First Class Clifford Bumgarner, United States Army retired.

[00:00:22] Speaker 00:
In 2009, this court in Cushman v. Shinseki ruled that the due process clause attaches to veterans' benefits.

[00:00:32] Speaker 00:
And of course, you would think that when you look to due process, the veterans should certainly get as much as you can.

[00:00:39] Speaker 00:
But the question then becomes, what process is due?

[00:00:43] Speaker 00:
In this particular case, quite a bit more than you would have, say, post AMA.

[00:00:48] Speaker 00:
Under the AMA, the duty to assist is not attached.

[00:00:52] Speaker 04:
Can I stop you here just for purposes of the audience?

[00:00:55] Speaker 04:
Why don't we talk a little?

[00:00:56] Speaker 04:
Let me start by saying, as you know, our standard of review in these veterans cases is extremely limited.

[00:01:03] Speaker 04:
So the facts may be on your side, or you may think they're on your side, but that's not relevant to our proceeding today, because we decide only questions of law.

[00:01:12] Speaker 00:
You're exactly right, Your Honor.

[00:01:16] Speaker 00:
specific standard review for veterans cases, which is very narrow.

[00:01:23] Speaker 00:
However, included within that standard review is constitutional issues, such as due process.

[00:01:28] Speaker 04:
Yes.

[00:01:29] Speaker 04:
I mean, a lot of people throw words like constitutional or due process around.

[00:01:33] Speaker 04:
So most of our cases say, yes, due process is covered, but this is clearly not sufficient.

[00:01:39] Speaker 04:
Let me just also spend a minute just to the background of your case.

[00:01:42] Speaker 04:
is a little interesting in terms of your client's husband served in Panama and other places and the allegation here is that his ultimate death a number of years ago was a result of his exposure to Agent Orange.

[00:01:57] Speaker 04:
That's correct.

[00:01:58] Speaker 04:
And as you know, we've got statutory provisions and court cases that ascribe a presumption if you die of certain causes that you get Agent Orange.

[00:02:08] Speaker 04:
But your client's husband does not fall within those categories where there's a presumption given his service in Panama.

[00:02:15] Speaker 00:
That's correct, Your Honor.

[00:02:16] Speaker 00:
This is not a presumption case.

[00:02:17] Speaker 00:
It's a direct exposure case under 38 U.S.C.

[00:02:20] Speaker 00:
1113.

[00:02:21] Speaker 00:
I think I got that right.

[00:02:23] Speaker 00:
Uh, it's, uh, and we say it's directly exposed.

[00:02:26] Speaker 00:
Now this is where the problem comes in because in building an evidentiary case, and of course evidentiary matters.

[00:02:33] Speaker 00:
can offend due process if the standard evidentiary practices are not found, is you have to lay out a factual predicate or a foundation to show that, in fact, the evidentiary is not found.

[00:02:45] Speaker 04:
So where is the denial of due process that rises to the level of a constitutional violation?

[00:02:49] Speaker 00:
I'm sorry, Your Honor.

[00:02:50] Speaker 04:
Where is the denial of due process in terms of your clients?

[00:02:54] Speaker 00:
Let's start with the two-month rule, that the Board of Veterans' Appeals seem to apply to

[00:03:03] Speaker 00:
The problem with the two-month rule is it's not in statute.

[00:03:07] Speaker 00:
It's not in regulation.

[00:03:09] Speaker 00:
It was an administrative rule that was included in the M-21 adjudication manual, which is not binding on the board or on anybody else.

[00:03:17] Speaker 04:
Okay, I'm a little confused about the two-month issue because you did raise it in blue.

[00:03:23] Speaker 04:
But then in gray, in your reply brief, you say that the two-month requirement the government's talking about is a red herring.

[00:03:33] Speaker 04:
Yes, it is.

[00:03:34] Speaker 04:
But you were the one that brought it up in your opening brief, arguing that the CAVC read an impermissible requirement on the duty to assist statute.

[00:03:44] Speaker 00:
And I brought that up because both the board and the court had relied on coming to the conclusion

[00:03:53] Speaker 00:
Mrs. Bumgarner had not established her case.

[00:03:57] Speaker 04:
But I thought by the end of, by Gray, by your reply brief, we had kind of narrowed this case to eliminate this two-month rule argument.

[00:04:06] Speaker 04:
Because even you, I think, say, well, it doesn't really matter.

[00:04:11] Speaker 04:
Because the records that we were seeking, whether they were for two months or for two years or 12 years,

[00:04:16] Speaker 04:
do not have enough specificity that would have established what your client was trying to establish here.

[00:04:23] Speaker 00:
It does not matter, but it matters only because both the board and the court relied on it to deny the client.

[00:04:33] Speaker 00:
If the board had said, there is no such thing as a two-month rule, and I think we all agree there is no such thing as a two-month rule, and just decided on the merits,

[00:04:42] Speaker 00:
or said, yes, you should have gone ahead and sent a request to the JSRRC, I think they call it something else now, JSRRC asking for an opinion as to whether or not there could have been exposure.

[00:04:55] Speaker 00:
That's what they should have done.

[00:04:57] Speaker 00:
But they didn't do that.

[00:04:58] Speaker 01:
What's the legal question before us on appeal related to the two-month rule, if anything?

[00:05:04] Speaker 00:
Let's go back to the basis of due process.

[00:05:06] Speaker 00:
If you're going to rely on something, as the board did and the court did, then you've got to have notice and an opportunity to be heard.

[00:05:13] Speaker 00:
That's the basis.

[00:05:14] Speaker 01:
So are you asking us in this appeal to decide whether the two-month rule is a violation of due process rights of veterans and their survivors?

[00:05:24] Speaker 00:
application of the two-month rule in this particular case, because I've never seen it outside of Bluewater.

[00:05:30] Speaker 01:
The application of it would be outside of our jurisdiction, would it not, because that would require consideration of the facts?

[00:05:38] Speaker 00:
Not in this case, Your Honor, because what happened was they said she never

[00:05:45] Speaker 00:
complying with the two-month rule, and because she never complied, we're not going to ask anything from the JSRRC.

[00:05:52] Speaker 00:
Who could have come up and said, yeah, Agent Orange wasn't down.

[00:05:56] Speaker 01:
So I think maybe I'm confusing you and me together.

[00:05:59] Speaker 01:
What, if anything, is the question of law related to the two-month rule that we need to decide in this appeal?

[00:06:06] Speaker 00:
Was there notice and opportunity to be heard for the claimant in this case?

[00:06:13] Speaker 00:
to, one, know that the two-month rule was out there, and two, give an opportunity to comply with it.

[00:06:21] Speaker 04:
In this particular case, you didn't argue that.

[00:06:23] Speaker 04:
I mean, this case has been litigated.

[00:06:24] Speaker 04:
Firstly, I can't see where the two-month rule, your arguments with respect to the two-month rule, were raised before the CAVC.

[00:06:32] Speaker 04:
You see a position that it was preserved and the arguments were made?

[00:06:35] Speaker 04:
Yes, it was raised.

[00:06:38] Speaker 04:
OK.

[00:06:41] Speaker 04:
The CAVC and the board looked at, I mean, your client had to show something.

[00:06:47] Speaker 04:
Leaving aside the two-month rule, there was lots of other evidence in the record.

[00:06:52] Speaker 04:
She came up with studies.

[00:06:54] Speaker 04:
She came up with her testimony, and I think the testimony of her son.

[00:06:57] Speaker 04:
And the board concluded, and the CAVC agreed, that all of that was insufficient.

[00:07:04] Speaker 04:
So if you're conceding that this two-month rule, that the data there wouldn't have shown anything because they don't keep records on the specificity of what's in barrels that people are carrying around, what does it matter?

[00:07:18] Speaker 04:
I mean, isn't this at a minimum a harmless error case?

[00:07:21] Speaker 00:
No, it is not a de minimis error because the court said

[00:07:25] Speaker 00:
And the board said there was no need to go to the JASRRC, who makes the determination on the presence of Agent Orange, because she did not comply with the two-month rule.

[00:07:36] Speaker 00:
I think that's perhaps the most important thing, other than the fact that the board, in applying evidentiary standards, and again, I'm aware

[00:07:48] Speaker 00:
Definitely aware of the limitations of the court here on what you can study, but what you can rule on.

[00:07:55] Speaker 00:
But in this particular case, there was a circumstantial evidence case built, as Your Honor pointed out.

[00:08:01] Speaker 00:
However, they did not look at the circumstantial evidence.

[00:08:06] Speaker 00:
They looked at individual blocks.

[00:08:09] Speaker 02:
Take, for example... What particular circumstantial evidence are you contending was not examined?

[00:08:16] Speaker 00:
It was not examined, Your Honor, in the totality.

[00:08:20] Speaker 00:
Individual blocks were looked at.

[00:08:22] Speaker 02:
So you are agreeing that the various pieces of circumstantial evidence were considered, but you're indicating that you don't feel like it was all put together as one puzzle?

[00:08:32] Speaker 02:
Is that kind of what you're contending?

[00:08:34] Speaker 00:
Pretty much, Your Honor.

[00:08:35] Speaker 00:
And here's the problem.

[00:08:37] Speaker 00:
Take, for example, the 152 pages or whatever it was of shipping documents showing that the agent worm was shipped to Panama.

[00:08:46] Speaker 00:
By itself, it proves that it was shipped to town.

[00:08:50] Speaker 00:
It does not prove that the veteran was exposed.

[00:08:54] Speaker 00:
Then you look at the second piece of evidence where the veteran actually says, but I moved barrels of Agent Orange.

[00:09:01] Speaker 00:
And he would know that as a senior NCO on military police, what was being sprayed on the perimeter, number one.

[00:09:08] Speaker 00:
Number two, there's orange stripes on the barrels.

[00:09:10] Speaker 00:
I think if you look at the appendix, I want to say appendix 40,

[00:09:14] Speaker 00:
You'll see pictures of barrels inbound with orange stripes on it.

[00:09:18] Speaker 00:
Number three is the fact that he had a disease that could be presumptive for Agent Orange.

[00:09:25] Speaker 00:
If you look at those blocks one at a time, except perhaps block number two, that's pretty conclusive I would think, you don't get the full picture.

[00:09:34] Speaker 00:
You have to pull it together.

[00:09:37] Speaker 00:
And that's the way we do circumstantial evidence, as you'll understand.

[00:09:41] Speaker 00:
You know, you can't go into court on a murder case and say, well, there's a knife and it had blood on it, and then without going and saying, yes, we tested the blood, and yes, it belonged to the

[00:09:52] Speaker 04:
I think you appreciate, as you've indicated earlier in the argument, that you're stumbling right into our problem with the standard of review.

[00:10:03] Speaker 04:
Because what you're talking about now is really not only do we not have jurisdiction over questions of fact, we don't have jurisdiction over applications of law to fact.

[00:10:14] Speaker 04:
So what you just said in the past four minutes, as eloquent as it may have been, seems to be quintessentially what is beyond our jurisdiction in these cases.

[00:10:24] Speaker 00:
And I appreciate the eloquent comment, Your Honor.

[00:10:26] Speaker 00:
But the problem is, at what point does this rise to a due process violation?

[00:10:33] Speaker 00:
And if you sit there, do not look at the evidence in tow, okay?

[00:10:41] Speaker 00:
And if you take a rule, a two-month rule, and rely on that, even though it really doesn't exist, that is a due process violation.

[00:10:51] Speaker 00:
Green versus McDonough, and I'm into my work all the time, but Green versus McDonough basically says, if you're going to

[00:10:59] Speaker 00:
rely on something to take away somebody's benefits or be proud of their benefits.

[00:11:04] Speaker 00:
then you've got to give notice and opportunity to be heard.

[00:11:08] Speaker 00:
That was not the time.

[00:11:09] Speaker 01:
Can I just ask you, at the last two pages of your blue brief, you have an argument about 38 USC 1310.

[00:11:18] Speaker 01:
I don't understand.

[00:11:19] Speaker 01:
That may be within our jurisdiction.

[00:11:21] Speaker 01:
It's a question of law.

[00:11:22] Speaker 01:
But I don't quite understand what you're alleging the error is there.

[00:11:25] Speaker 00:
Well, it doesn't even come into effect, really, unless we find that

[00:11:31] Speaker 00:
that he was exposed to age in orange.

[00:11:35] Speaker 00:
So I understand your confusion, I think.

[00:11:39] Speaker 01:
So that argument's contingent on you winning one of your earlier arguments?

[00:11:42] Speaker 01:
That's correct.

[00:11:43] Speaker 01:
I see.

[00:11:43] Speaker 01:
Thank you.

[00:11:44] Speaker 04:
Why don't we hold the rest of your rebuttal and we'll hear from them.

[00:11:46] Speaker 04:
Thank you, Your Honor.

[00:11:59] Speaker 03:
Good morning, and may it please the court

[00:12:01] Speaker 03:
This court should dismiss Mrs. Baumgartner's appeal for lack of jurisdiction.

[00:12:07] Speaker 03:
Mrs. Baumgartner raises six different issues, all of which involve factual determinations or application of law to fact, and none of which are resulting in this court's jurisdiction.

[00:12:18] Speaker 03:
I'd like to concentrate, I think, mostly on the two-month rule, as that was the main subject of your discourse with Mr. Wells.

[00:12:25] Speaker 03:
As you noted, simply placing the due process label on an argument doesn't bring it within this court's jurisdiction.

[00:12:31] Speaker 04:
No, but why don't we turn it into a legal question, if we can?

[00:12:35] Speaker 04:
So let's assume, hypothetically, that the board and the CABC began and ended this case by saying, we asked her for two months' worth of evidence

[00:12:45] Speaker 04:
and she didn't give it to us full stop, she loses.

[00:12:50] Speaker 04:
Would that not be a legal question?

[00:12:53] Speaker 04:
Would that be?

[00:12:55] Speaker 04:
And what's your answer to that question?

[00:12:57] Speaker 04:
Is that OK?

[00:12:59] Speaker 03:
So even assuming that, as Your Honor alluded to, that appellant didn't abandon this argument and reply, and I think that the way that

[00:13:09] Speaker 03:
Mrs. Bungartner framed that argument is certainly, I think, as you alluded to, an application of law and effect.

[00:13:15] Speaker 03:
But even assuming that this is a legal issue, I don't think that there's any developed argument on Appellant's part that would cause it to rise to the level of a due process violation.

[00:13:26] Speaker 03:
Mr. Wells alluded to meaningful opportunity and a notice to be heard and that

[00:13:32] Speaker 03:
She wasn't aware of this two-month rule until the board issued its decision, but I don't think that even delving into the facts of this case, which again we submit that the court shouldn't do, we don't think that the record supports this contention.

[00:13:45] Speaker 03:
VA in asking Mrs. Baumgartner for that two-month span of time, thereby notified her.

[00:13:53] Speaker 03:
And that is in the record at appendix.

[00:13:56] Speaker 04:
And what was her response to that?

[00:13:58] Speaker 04:
My recollection is she gave large swaths of time from Korea and somewhere else.

[00:14:04] Speaker 03:
It was a little bit puzzling.

[00:14:07] Speaker 03:
My understanding is that Mrs. Baumgartner in her response, which is at APPX 354,

[00:14:12] Speaker 03:
listed several years in Vietnam and several years in Korea.

[00:14:16] Speaker 03:
But the puzzling part, at least to me, is that all of these periods of time, in addition to being well beyond the two months, preceded Mr. Baumgartner's time in service.

[00:14:27] Speaker 03:
And our understanding is that Mr. Baumgartner did not even serve in Vietnam.

[00:14:32] Speaker 04:
But also, wasn't his claim to Agent Orange's exposure limited to Panama?

[00:14:37] Speaker 04:
Or did it also include Korea?

[00:14:40] Speaker 03:
It's a little unclear to us on that point I think that

[00:14:45] Speaker 03:
The briefing in front of this court, I think, narrows it down pretty clearly to Panama in terms of this is when Mrs. Baumgartner testified that Mr. Baumgartner stated that he carried Agent Orange Farrels and such.

[00:14:57] Speaker 03:
But I think that there's also allusions to the possibility that it was in Korea as well.

[00:15:02] Speaker 03:
But I think either way you look at it, whether it's confined to just Panama or includes Panama and Korea, the dates of Mr. Baumgartner's service are, again,

[00:15:10] Speaker 03:
well beyond the time that Mrs. Baumgartner provided to VA to give to the JSRRC.

[00:15:20] Speaker 03:
And then VA, when it issued the finding telling Mrs. Baumgartner that there was not

[00:15:26] Speaker 03:
that she hadn't provided information sufficient for that center to conduct its search.

[00:15:31] Speaker 03:
Again, notified her of that at the time.

[00:15:34] Speaker 03:
So I don't think that Mrs. Bumgarner can now come and say, in the light of these two notifications by VA, that she did not have the notice of this two-month period, and therefore was deprived of a meaningful opportunity to be heard.

[00:15:48] Speaker 02:
Counsel, you point us to appendix page 354.

[00:15:51] Speaker 02:
What did you want us to take from that page?

[00:15:54] Speaker 02:
just pull that up.

[00:16:00] Speaker 03:
And Judge Prost was asking the dates that Mrs. Bumgardner provided in response to VA's request for information.

[00:16:08] Speaker 03:
So VA's request for information was at APPX 329, and it asked to provide approximate dates within a two-month time frame that Mr. Bumgardner was exposed to Agent Orange.

[00:16:19] Speaker 03:
And Mrs. Bumgardner's response on APPX 354 in the last paragraph

[00:16:25] Speaker 03:
gives the dates as between 1962 and 1975 in Vietnam, and April 1968 to August 1971 in Korea.

[00:16:36] Speaker 03:
However, as I mentioned a couple of minutes ago, Mr. Bunkerner does not appear to have served in Vietnam, and the dates that he mentions in Korea well predate

[00:16:45] Speaker 03:
his own service in Korea.

[00:16:47] Speaker 03:
And so even beyond not adhering to the two-month request that VA made of Mrs. Blumgartner, as we alluded to in our brief, those states wouldn't have actually assisted the JSRC in finding his service and medical records that could have potentially confirmed exposure.

[00:17:08] Speaker 04:
We don't have a two-month rule anymore, right?

[00:17:11] Speaker 03:
Sorry?

[00:17:12] Speaker 04:
Is there still a two-month rule?

[00:17:14] Speaker 03:
No, my understanding is that JSRC is not a component of VA.

[00:17:20] Speaker 03:
It's a separate office that VA used to work with to find records.

[00:17:24] Speaker 03:
I believe that was part of DOD.

[00:17:25] Speaker 03:
Now, I think maybe after the AMA, they moved all of that in-house, and so the record search is now done by a component of VA, and now the time span is, I believe, 120 days rather than two months.

[00:17:39] Speaker 04:
Okay, and how detailed?

[00:17:41] Speaker 04:
I couldn't discern from the record.

[00:17:43] Speaker 04:
I mean, even I think there's some concessions in the reply brief that these records aren't detailed enough.

[00:17:49] Speaker 04:
I mean, they would have had to shown here his personal exposure, I don't know, carrying barrels or whatever.

[00:17:56] Speaker 04:
Do those records have that kind of detail in them?

[00:17:59] Speaker 03:
I mean, I think the

[00:18:02] Speaker 03:
I can't speak to what the records would have said.

[00:18:05] Speaker 03:
I mean, it doesn't seem like those records, at least in Mr. Bunkerner's regular service file that already exists, I don't think the records show any exposure, which makes sense given the dates and places of his service.

[00:18:20] Speaker 03:
Could there have been a possibility that if he was exposed to Agent Orange that something may have been noted?

[00:18:25] Speaker 03:
The answer is we don't know.

[00:18:27] Speaker 03:
It would have been certainly irregular for Mr. Baumgartner to have been carrying Agent Orange barrels, I think, almost two or three decades after the government stopped using Agent Orange.

[00:18:38] Speaker 03:
So something that unusual could have been in the record if it existed.

[00:18:41] Speaker 03:
But the record as is, as the board found, all that circumstantial evidence was overwhelmingly in favor of showing that Mr. Baumgartner was not exposed to Agent Orange.

[00:18:53] Speaker 02:
How does the death certificate factor into the proof?

[00:18:56] Speaker 02:
I think there was quite a bit made in the briefing about the death certificate, and it's talking about Asian orange exposure.

[00:19:03] Speaker 02:
How do you contend that would factor into the proof?

[00:19:06] Speaker 03:
Well, so the CABC, the board actually initially

[00:19:11] Speaker 03:
issued a decision finding against Mr. Bumgarner having exposure.

[00:19:15] Speaker 03:
And then the Veterans Court actually remanded because the board had not specifically discussed a death certificate that said that his death could have been connected to Agent Orange.

[00:19:27] Speaker 03:
And then there was also a medical opinion from Dr. Koussous, who also said, made some allusion to time

[00:19:34] Speaker 03:
Mr. Bungarner's mantle cell lymphoma to exposure to Agent Orange.

[00:19:38] Speaker 03:
So the Veterans Heart remanded for the board to take notice of and discuss these two elements and the board on remand did just that.

[00:19:46] Speaker 03:
It discussed both the death certificate and the medical opinion but decided to not afford much probative weight to those because they

[00:19:54] Speaker 03:
simply assumed exposure to Agent Orange, and the medical opinion in particular, contained no medical reasoning as to why it found that it was more likely than not, or just as likely as not, that Mr. Bell Gardner's illness was tied to Agent Orange.

[00:20:12] Speaker 03:
And so the board did discuss both of these cases of evidence.

[00:20:17] Speaker 03:
placed what it found to be the appropriate amount of or lack of probative weight on that.

[00:20:21] Speaker 03:
But of course, the board's weighing with the evidence and its findings of probative value are issues that are, I think, very clearly outside of this court's jurisdiction, as Judge Post noted to my counterpart here.

[00:20:35] Speaker 03:
I'm happy to discuss any other questions.

[00:20:37] Speaker 01:
Would you just address this last point that I raised with your friend on the other side about Section 1310?

[00:20:44] Speaker 01:
I'm principally just concerned with, is that a question of law within our jurisdiction, or do we lack jurisdiction over it?

[00:20:52] Speaker 01:
You addressed it in the last two pages of your brief, but I can't tell if you think we have jurisdiction over it or not.

[00:20:57] Speaker 03:
Well, I think that Mr. Wells and I are at least in agreement that

[00:21:01] Speaker 03:
that claim is derivative of and dependent on his success on the other claims, even assuming that he could succeed on the other claims, which we think that the Agenda Court likes jurisdiction over those five arguments, but even if the court had jurisdiction, we also think that he couldn't, or that she couldn't succeed.

[00:21:18] Speaker 03:
At that point, then we think that

[00:21:20] Speaker 03:
the application of 1310 would still be an application of a lot of fact.

[00:21:25] Speaker 03:
I don't think there's really a straight allegation of pure legal error here.

[00:21:29] Speaker 03:
So I think that even if the appellant could establish a predicate for considering 1310, that would be an application of a lot of fact.

[00:21:38] Speaker 03:
And therefore, I would say this was jurisdiction.

[00:21:39] Speaker 01:
It seems like an interesting question.

[00:21:40] Speaker 01:
If you have a predicate question that has to be resolved in order to reach, let's just say for segue argument, a legal question,

[00:21:47] Speaker 01:
But we have no jurisdiction over the predicate question.

[00:21:51] Speaker 01:
Do we have jurisdiction over the sort of consequent legal question?

[00:21:54] Speaker 01:
I think that's not an easy question.

[00:21:56] Speaker 03:
I think that there's certainly potential for edge cases that are not within my sphere right now.

[00:22:05] Speaker 03:
could possibly be the case, but I think here, assuming a predicate for the first five issues or any of the first five issues is met, then I think what we still have would be an application of law and fact, but I also think that if the predicate for the first five issues was met, then

[00:22:24] Speaker 03:
then the analysis by the CVC and the board on 1310 would have probably been different to begin with.

[00:22:30] Speaker 03:
So I think, again, that sort of establishes why this isn't a pure legal question within this court's jurisdiction.

[00:22:38] Speaker 03:
Thank you.

[00:22:46] Speaker 00:
Thank you.

[00:22:47] Speaker 00:
Thank you.

[00:22:47] Speaker 00:
Your Honor, as Judge Crost asked my friend, what would happen if, in fact,

[00:22:55] Speaker 00:
The board asked Mrs. Baumgartner for the two months, and we didn't respond.

[00:23:01] Speaker 00:
Well, that's not exactly right.

[00:23:04] Speaker 00:
That's not what happened.

[00:23:07] Speaker 00:
Because the board never asked it.

[00:23:08] Speaker 00:
There was the one letter that she quoted in the appendix, I think it was appendix 329, where they said, in parentheses,

[00:23:16] Speaker 00:
give us the dates in a two-month time frame.

[00:23:18] Speaker 00:
Now, at this point, she's not represented by counsel.

[00:23:21] Speaker 00:
She probably got a claims agent.

[00:23:22] Speaker 00:
She had a claims agent, I think.

[00:23:24] Speaker 00:
But she responded, he was here during this time, and this time was a number of years.

[00:23:31] Speaker 00:
And my friend said, well, he wasn't there during the time of the spraying.

[00:23:35] Speaker 00:
That's fine.

[00:23:36] Speaker 00:
But then all the studies and everything else that's been done on Agent Orange, both in the record and without, show that Agent Orange persists in the soil for years after.

[00:23:51] Speaker 00:
The Guam report that I think we quoted sprang stops in Guam in 1980, and yet in 2019 they still found levels of the dioxin related to the chlorinated herbicides on the island of Guam.

[00:24:05] Speaker 00:
So, you know, it's, and again, this is a tough statute.

[00:24:11] Speaker 00:
I mean, it's a tough standard to review.

[00:24:13] Speaker 00:
And I'm trying my best to come in here and satisfy you on this.

[00:24:18] Speaker 00:
It comes down to the fact that when does the failure of the board to look at all the evidence, to study all the evidence, when does that implicate due process?

[00:24:31] Speaker 00:
I mean, Congress has always said,

[00:24:33] Speaker 00:
that this entire veterans benefit system should be non-adversarial, pro-veteran.

[00:24:39] Speaker 00:
You've got the pro-veteran's can.

[00:24:41] Speaker 00:
You've got all kinds of things from them.

[00:24:43] Speaker 00:
Even in the Appeals Modernization Act, it says, hey, we want to make this easy and easy on the veteran to do.

[00:24:50] Speaker 00:
And instead, it seems like, and I'll be critical here, it just seems like that Congress, when they passed the jurisdictional statute, actually thought out to make it harder.

[00:25:01] Speaker 00:
Does a predicate issue, a factual issue, that it's required to trigger a legal issue, do you have jurisdiction to do that?

[00:25:11] Speaker 00:
I would argue that yes, you would, because otherwise you can't get to the legal issue.

[00:25:16] Speaker 00:
And that's the same problem that we're having here with what the board did.

[00:25:21] Speaker 00:
I'll go back to the circumstantial evidence.

[00:25:24] Speaker 00:
And the board always says, and I believe they said in this case also, there's no direct evidence.

[00:25:30] Speaker 00:
It doesn't have to be correct evidence.

[00:25:32] Speaker 00:
Circumstantial evidence counts.

[00:25:34] Speaker 00:
The Supreme Court found that in Holland versus United States.

[00:25:38] Speaker 00:
You have to look at the circumstantial evidence.

[00:25:40] Speaker 00:
And as Judge Cunningham pointed out, you can't do it by taking its component points and not looking at it in a totality of circumstances.

[00:25:52] Speaker 00:
Your Honors, it's always a pleasure to come before you.

[00:25:55] Speaker 00:
I do have a couple of minutes left to be happy to answer any questions.

[00:25:59] Speaker 00:
If you're ready for me to sit down, I guess I am too.

[00:26:01] Speaker 04:
Well, let me just make one point, because we have an audience here, or students, just on your point.

[00:26:06] Speaker 04:
And I take your point about the system and the frustration with the limited standard of review.

[00:26:11] Speaker 04:
But the system that Congress created has first the regional office, and they go through the record.

[00:26:19] Speaker 04:
Then there's an appeal to the Board of Veterans' Appeals.

[00:26:22] Speaker 04:
And they go through the record and make findings and conclusions.

[00:26:25] Speaker 04:
And then it goes to the court of veterans' claims, which also has jurisdiction over everything except deference to the board on facts.

[00:26:33] Speaker 04:
So you're right, it's frustrated at this level that our scope is so narrow.

[00:26:38] Speaker 04:
But that's not an indication that the veteran has no due process or no rights to be heard by.

[00:26:46] Speaker 04:
a body other than us.

[00:26:49] Speaker 00:
Yes, Your Honor, I understand.

[00:26:50] Speaker 00:
Although the two-month rule, I don't think they really had a notification on that one.

[00:26:54] Speaker 00:
But it is frustrating.

[00:26:57] Speaker 00:
I understand the court's position, and I appreciate you listening to us.

[00:27:01] Speaker 00:
We're just trying to get these vets covered.

[00:27:03] Speaker 04:
Thank you.

[00:27:04] Speaker 04:
We thank both sides.

[00:27:05] Speaker 04:
The case is submitted.