[00:00:00] Speaker 04: The next case is Robert L. Cash versus the Secretary of Veterans Affairs, 2024, 1811. [00:00:11] Speaker 04: Ms. [00:00:11] Speaker 04: Castlewalker, you have a similar issue. [00:00:15] Speaker 00: Similar, Your Honor. [00:00:17] Speaker 00: Good morning, Your Honors, and may it please the court. [00:00:20] Speaker 00: Ms. [00:00:20] Speaker 00: Johanna Castlewalker on behalf of Mr. Robert L. Cash. [00:00:24] Speaker 00: This case presents three separate paths to remand. [00:00:27] Speaker 00: Cook, the constructive possession doctrine, and the meaning of submit under section 7113. [00:00:33] Speaker 02: Before you get into your arguments, can you tell me the status of the supplemental claim that Mr. Cash filed and the AOJ denied on June 2024? [00:00:47] Speaker 02: Was there a higher level review request filed or a board nod [00:00:54] Speaker 02: Appeal filed. [00:00:56] Speaker 00: There is no board nod appeal filed. [00:00:58] Speaker 00: So I think what Your Honor is getting at is whether this case is moot and it's not. [00:01:03] Speaker 00: After the AOJ denial, Mr. Cash sought higher level review. [00:01:09] Speaker 00: In that review process, the higher level review actually found that on the supplemental claim, there was a duty to assist error, sending it back to [00:01:20] Speaker 00: the VA adjudicator to look at the case again. [00:01:23] Speaker 00: Ultimately, that claim was denied. [00:01:25] Speaker 00: But I do think that that process speaks to the inadequacy of just sending back a VA's claim to VA adjudication, as opposed to allowing these legal issues to be fully aired before the court. [00:01:39] Speaker 02: So the denial of the supplemental claim has been undone. [00:01:42] Speaker 02: And now that supplemental claim is back pending before the AOJ. [00:01:46] Speaker 02: Is that right? [00:01:47] Speaker 00: It was pending before the AOJ, and it has since been denied. [00:01:51] Speaker 00: And Mr. Cash is considering what his next appeal options will be for the denial of that supplemental claim. [00:01:56] Speaker 02: I see. [00:01:58] Speaker 02: Could possibly file a mallet. [00:02:00] Speaker 00: He could possibly file a nod. [00:02:01] Speaker 00: And I think that that's one of the things in consideration. [00:02:04] Speaker 00: I think that as your question is getting at, though, it would require the filing of a nod and board adjudication of that supplemental claim on the revised record in order to moot this case. [00:02:16] Speaker 00: And because that hasn't happened, this appeal still presents a live controversy before the panel. [00:02:23] Speaker 03: But wouldn't he get to the relief that he seeks if he was to file a nod now? [00:02:30] Speaker 00: I think it's possible that he would get the relief that he seeks if he files a nod now. [00:02:35] Speaker 00: But I think a key feature of the AMA, and I think one that the secretary agrees with, is that the creation of multiple lanes for appeals, the purpose of that was not just deficiency, but also to give veterans choice. [00:02:47] Speaker 00: And Mr. Cash has chosen to proceed with this appeal before this court. [00:02:51] Speaker 00: and then to pursue the supplemental claim in front of the VA adjudicator. [00:02:57] Speaker 00: He has not yet chosen to file a board review, perhaps because of the difficulties that he's had. [00:03:02] Speaker 03: Should we consider that he has access to relief through an alternative process? [00:03:09] Speaker 00: I think this court can consider it, but I don't think it has any meaningful impact on the way that this court should actually resolve the case. [00:03:17] Speaker 00: And I think that's because when you consider the mootness doctrine, the question that this court is presented with is whether it could provide any relief whatsoever. [00:03:27] Speaker 00: And at this point, this court can still provide the relief that Mr. Cash is seeking, and that's re-adjudication of his claims before the board. [00:03:34] Speaker 04: Counsel, this case differs from the previous one. [00:03:38] Speaker 04: I believe in that your client did not opt for direct review. [00:03:44] Speaker 04: That's correct, Your Honor. [00:03:46] Speaker 04: And under the 10b option, he could submit additional evidence. [00:03:55] Speaker 04: And the question is whether he submitted it or not. [00:03:59] Speaker 04: He's arguing that [00:04:03] Speaker 04: based on a February submission. [00:04:07] Speaker 04: He's identifying that and saying that's a submission. [00:04:12] Speaker 04: Isn't that the issue before us? [00:04:14] Speaker 00: I don't think that's quite right. [00:04:15] Speaker 00: And I think that what I'm struggling with is the word identify. [00:04:18] Speaker 00: I think that the secretary points to identify as this very capacious language that I do think would have a broader definition than the definition of submit that we are urging for. [00:04:30] Speaker 00: I think maybe to just zoom back a little bit and see the two separate issues that we're pressing for that would have properly put Mr. Cash's evidence before the board. [00:04:39] Speaker 00: is the constructive possession doctrine, and then the meaning of submit under section 7113, which defines the proper timelines for submitting evidence to the board. [00:04:49] Speaker 00: I'd like to start with the constructive possession. [00:04:51] Speaker 03: But your client's arguing he did submit. [00:04:54] Speaker 03: And he submitted by reference. [00:04:57] Speaker 03: Isn't that constructive possession? [00:05:00] Speaker 00: I think there are two ways to think about it. [00:05:02] Speaker 00: I think one is just looking at section 7113 as a matter of statutory interpretation, looking at the word submit, asking how do we understand the ordinary meaning of submit, and does submit include putting the board on notice of a document that is already in Mr. Cash's claims file? [00:05:21] Speaker 00: We think that it does. [00:05:22] Speaker 03: I think that just reference to the evidence is submission. [00:05:27] Speaker 00: Right, exactly. [00:05:28] Speaker 03: And I think that the secretary's- But in order to do that, the evidence has to be there. [00:05:33] Speaker 00: Right. [00:05:33] Speaker 03: The evidence, I think there's- And that's who you argue constructed possession. [00:05:38] Speaker 00: I think that that is- I think the arguments are separate, because there's no dispute here that this evidence was also within the board's actual possession. [00:05:48] Speaker 00: I think a helpful way to think about this is that even though Mr. Cash had multiple claim streams, [00:05:54] Speaker 00: All of those claim streams link back to a single claim file. [00:05:58] Speaker 00: So even though this February 22 evidence was timely submitted in support of a separate, albeit related, claim stream, that evidence was contained within the board's actual possession through Mr. Cash's claims file. [00:06:10] Speaker 00: So I think if this court [00:06:12] Speaker 00: resolves the issue under the question of how do we understand the ordinary meaning of the word submit under section 7113. [00:06:19] Speaker 00: You don't necessarily have to resolve the constructive possession doctrine because in this case there is no dispute that this was in the actual possession of the board and that the board had actual notice of it as a result of the addendum that was filed in support of Mr. Cash's notice of disagreement. [00:06:36] Speaker 04: But the word submit is still in the regulation. [00:06:40] Speaker 00: I think that's right. [00:06:41] Speaker 00: And I think if you deploy the tools of construction that this court uses to understand the ordinary meaning of a term in the statute, you start first with the word. [00:06:51] Speaker 00: You start with the ordinary meaning of the word. [00:06:53] Speaker 00: And in particular, you look at the ordinary meaning of the word at the time of the statute's enactment. [00:06:58] Speaker 00: In our brief, we identified over 50 years worth of dictionary definitions, including one that was published in 2014, just three years before the AMA was enacted. [00:07:08] Speaker 00: And it supports our interpretation of submit, which means to not only to formally deliver a document to a particular entity, but also to reference or present it for consideration before that entity. [00:07:23] Speaker 04: Well, it was submitted in February 22, wasn't it? [00:07:26] Speaker 00: Our position is that it was submitted multiple times. [00:07:29] Speaker 00: It was submitted in February 22 in support of claim stream one. [00:07:33] Speaker 00: And then it was resubmitted with Mr. Cash's notice of disagreement for the claim. [00:07:37] Speaker 04: So aside from constructive notice, there was actual submission? [00:07:41] Speaker 04: And is that within the appropriate time frame? [00:07:46] Speaker 00: Yes, because our view of what the second time that he submitted that document was when he filed his notice of disagreement and included an addendum in that notice of disagreement that said, and I'll give you the exact text of this. [00:08:01] Speaker 00: The veteran asked the board review the evidence he submitted in support of his claims for the other conditions because they relate to his claims for these conditions. [00:08:08] Speaker 00: which is why the veteran selected the evidence submission lane. [00:08:12] Speaker 00: It is not only that he submitted this evidence with his notice of disagreement, which there's no dispute that section 7113 [00:08:19] Speaker 00: contemplates that a veteran could submit additional evidence, quote, with his notice of disagreement. [00:08:24] Speaker 00: But Mr. Cash said, this is the exact reason why I chose the evidence submission lane, because I have this other evidence that I timely submitted in support of my related condition. [00:08:34] Speaker 00: And I think that it's also relevant to the claimant issue here. [00:08:38] Speaker 00: The secretary does not dispute the relevance, does not dispute that it's reasonable. [00:08:41] Speaker 02: Can you slow down just a little bit? [00:08:42] Speaker 02: Sure. [00:08:42] Speaker 00: Sorry. [00:08:43] Speaker 02: I appreciate it. [00:08:45] Speaker 02: What if there had been no addendum? [00:08:47] Speaker 02: then would you be making the argument that the February 22 submission was submitted with the nod? [00:08:57] Speaker 00: I do think that's the key distinction between the submission argument and the constructive possession doctrine. [00:09:02] Speaker 02: I could just get an answer to my question. [00:09:05] Speaker 00: not under our submit argument. [00:09:07] Speaker 00: So under the second argument as to whether the meaning of submit. [00:09:11] Speaker 02: Before we get back to constructive possession, which I have some problems with, I want to keep exploring this submission idea. [00:09:21] Speaker 02: Does your submission theory, is it premised at least in part on the fact that here, [00:09:29] Speaker 02: Mr. Cash did actually physically submit evidence to the VA, as opposed to what if in February 2022, instead of submitting some evidence and articles and other statements, Mr. Cash in February 2022, in [00:09:48] Speaker 02: with respect to his related claim, said something like, I have some doctor records in a Seattle hospital that are very relevant to my claim. [00:10:01] Speaker 02: Go look at it. [00:10:04] Speaker 02: Would that have counted as a submission for purposes of your not addendum? [00:10:12] Speaker 02: Saying, please refer to my February 2022 filing. [00:10:17] Speaker 02: Would that count as those records inside that Seattle hospital as having been submitted with the nod? [00:10:26] Speaker 00: I think it really depends on what stage at which Mr. Cash or any veteran had said that. [00:10:32] Speaker 00: I think if in the parallel claim stream. [00:10:34] Speaker 02: Let's stick with my hypothetical. [00:10:36] Speaker 00: Sure. [00:10:36] Speaker 00: If in the parallel claim stream, Mr. Cash had said that before the board, I think that that would not count as a submission in his related claim stream. [00:10:45] Speaker 00: I think if he had two parallel [00:10:47] Speaker 00: claim streams and the first of which was still before the VA adjudicator where there was a duty to assist in play and those medical examination records became part of his file for that other claim stream under the duty to assist. [00:11:02] Speaker 00: I think that would be within his claims file and if he later referred back to the claims file that would be entirely appropriate. [00:11:09] Speaker 00: So I do think to answer maybe the core of your question, our submit theory turns upon the documents actually already being within the claims file, and whether they're made part of that. [00:11:20] Speaker 02: I mean, to put a point on it, your case is a stronger case, I think, than the hospital records in Seattle, or the records having somehow [00:11:37] Speaker 02: appeared in the claims file without any submission by the claimant. [00:11:42] Speaker 02: Here, we have the claimant actually having done a submission, and then with the nod, making a reference. [00:11:52] Speaker 02: And for purposes of this appeal, I think we can assume it's a clear reference to that actual prior submission. [00:11:58] Speaker 02: So the next question is, can we say that [00:12:05] Speaker 02: that that earlier submitted evidence was effectively submitted along with the nod, given the clear reference to the earlier submission. [00:12:14] Speaker 00: Judge, can I think you're exactly right that this case is the easier case? [00:12:18] Speaker 00: I think I just urged that caveat. [00:12:20] Speaker 02: It still might not be good enough. [00:12:22] Speaker 00: I think that as your question suggested, though, there is no dispute about whether this addendum was reasonably clear. [00:12:31] Speaker 00: The board had actual notice of these documents. [00:12:35] Speaker 00: They were in actual possession of these documents. [00:12:37] Speaker 00: And I don't actually take the secretary to really be disputing it. [00:12:40] Speaker 00: And they seem to be disputing something else entirely, which is that it would reimpose [00:12:44] Speaker 00: the duty to assist, which I think is wrong for all of the things you say in that brief. [00:12:48] Speaker 00: I am cognizant of my time, and I would like to save some for rebuttal. [00:12:52] Speaker 00: But if this court has any questions from my opening presentation, I'm happy to answer those, of course. [00:12:57] Speaker 04: We will save you time. [00:12:59] Speaker 00: Thank you, Your Honor. [00:13:00] Speaker 04: Mr. Hawking. [00:13:07] Speaker 01: The counsel has it right. [00:13:10] Speaker 01: It's the duty to assist. [00:13:11] Speaker 01: That's what we're all overlooking. [00:13:13] Speaker 01: The question in 5103A has always been, what is the VA supposed to do? [00:13:20] Speaker 01: When the VCA was issued back in 2001, that statute tells the claimants what the VA will do when they get a claim, and it will go out and collect evidence. [00:13:29] Speaker 01: And that very statute, even before it was modified by AMA, distinguished between what the VA will do in terms of when something is identified for the VA and when something is submitted. [00:13:40] Speaker 01: And then when you look at the AMA and the change it made to introduce subsection D, that clearly says, no duty to assist on part of the board. [00:13:48] Speaker 01: So the question we have here is, when the board gets an NOD, [00:13:53] Speaker 01: And there's evidence that doesn't comply with 7113's, the other part of the AMA, requirements that the evidence be provided to the board as part of the NOD or after the NOD. [00:14:05] Speaker 01: What do we do? [00:14:06] Speaker 04: It doesn't say after. [00:14:08] Speaker 04: It says within 90 days. [00:14:10] Speaker 01: Within 90 days. [00:14:12] Speaker 04: Does within mean only after? [00:14:15] Speaker 04: Or could it include 90 days before? [00:14:19] Speaker 04: Because it was submitted. [00:14:21] Speaker 04: within the 90 days before, in February. [00:14:25] Speaker 01: It was submitted to the VA within the 90 days before or within the year before, but it wasn't submitted within the 90 days after. [00:14:35] Speaker 01: And I look at 7113 as clearly suggesting that the within is the NOD trick, because there's no reason why the board would pay attention to this until they actually get an NOD. [00:14:47] Speaker 04: Actually, it's not within the 90 days before. [00:14:51] Speaker 04: Because the NLD was in June, and February is more than 90 days. [00:14:56] Speaker 01: So well, I think that the statute has to be read, 7113, has to be read that submission to the NLD triggered this. [00:15:03] Speaker 02: I'm not sure what Mr. Cash is arguing necessarily as invocation of a now-defunct duty to assist in post-AMA, because here, [00:15:16] Speaker 02: He is not asking the board to go looking for records, to go obtaining and unearthing records. [00:15:27] Speaker 02: He's simply letting the board know that it should also be considering submissions that were just done a few months prior to the nod. [00:15:39] Speaker 02: And so therefore, there's no [00:15:42] Speaker 02: searching for records like we typically think about with respect to a duty to assist. [00:15:49] Speaker 01: Well, I disagree, Your Honor. [00:15:51] Speaker 01: I mean, identifying a record to the VA as part of a particular claim, you say, oh, I'm at a VA clinic in Louisville, and I think I got a record there. [00:16:06] Speaker 01: The VA has to go get it, right? [00:16:08] Speaker 01: It's still a VA document. [00:16:10] Speaker 01: So within the VA's possession, it would fall probably at that level. [00:16:14] Speaker 02: For purposes of this appeal, government has made no argument or claim that [00:16:18] Speaker 02: It doesn't know where the prior evidence submission is, or there's a lack of clarity as to what the evidence may be, or the burden that would be put upon the board in order to just simply get the evidence that's already in the claims file that this person already submitted just a few months before. [00:16:38] Speaker 01: Because all of those questions are irrelevant. [00:16:41] Speaker 01: What we have here is the AMA changed the playing field. [00:16:45] Speaker 01: We stood before this court for 15 or 20 years trying [00:16:48] Speaker 01: come up with a response to the questions that the panel had asked about what is going on with the slog that's going on at the board. [00:16:56] Speaker 01: And that slog mainly was, folks get before the board, introduce new evidence, board sends it back to the RO, starts again, and we're back. [00:17:04] Speaker 01: So Congress was working on this, along with the veterans service organizations and veterans representatives, and came up with the AMA. [00:17:11] Speaker 02: And clearly the AMA cut off the time to file evidence [00:17:15] Speaker 02: within 90 days after filing the nod. [00:17:18] Speaker 02: After that, no more evidence. [00:17:20] Speaker 02: And that's a perfectly understandable, rational way to run the board appeal business. [00:17:26] Speaker 02: But we're not talking about evidence that was submitted months after the nod was filed. [00:17:34] Speaker 02: We're talking about evidence that was filed before the nod was filed. [00:17:39] Speaker 02: So the question then becomes, it's less than clear to me, what is the burden on [00:17:45] Speaker 02: the board to look at the very evidence that had already been submitted. [00:17:49] Speaker 01: I think the question is, did Congress place a burden on the claimant as part of the AMA when they pick a process for review? [00:17:57] Speaker 01: Does the claimant have a burden to make sure that the record before the board is what Congress said it's going to be? [00:18:03] Speaker 01: And 7113C2, which is that issue here, says that the evidentiary record for the board shall include evidence submitted by the appellant [00:18:15] Speaker 01: and is wrapped, if any, with the Notice of Disagreement, evidence submitted, if any, within 90 days. [00:18:22] Speaker 01: The evidence here was submitted prior. [00:18:24] Speaker 01: So by statutory definition of 7113, that evidence is not before the board. [00:18:29] Speaker 01: There can be no error. [00:18:30] Speaker 02: Well, what if the Nod addendum here had said, I hereby incorporate by reference the evidence that I submitted just a few months prior, February 2022, [00:18:44] Speaker 02: No. [00:18:45] Speaker 03: It has to be. [00:18:46] Speaker 03: What if that evidence is in the file? [00:18:48] Speaker 03: No. [00:18:49] Speaker 03: That's the case here. [00:18:50] Speaker 01: It has to be submitted directly to the board. [00:18:52] Speaker 01: That's the whole point, how we're going to make this system work without reverting to the board. [00:18:55] Speaker 02: What if the addendum had included a hyperlink to some evidence? [00:18:59] Speaker 02: To what? [00:19:01] Speaker 02: To, I don't know, to a website that contains all kinds of evidence, a particular web page. [00:19:08] Speaker 02: To its file, let's say. [00:19:09] Speaker 01: That's an interesting question for a future regulation. [00:19:13] Speaker 01: But right now, I'm going to go with what we have before us, which is what was submitted was information about another claim stream, and not even precise information at that. [00:19:24] Speaker 01: But I have another claim stream, and there may be information related to that that's helpful to you. [00:19:29] Speaker 01: That's what Council Reg, it said. [00:19:30] Speaker 02: What if the addendum had included a citation to a Federal Circuit opinion? [00:19:39] Speaker 02: would end up saying, well, this Federal Circuit opinion does a very deep discussion about the medical science that's relevant to my case. [00:19:50] Speaker 02: I'm not giving you a copy of the opinion, but I'm giving you the site. [00:19:55] Speaker 02: It sounds like a leak. [00:19:56] Speaker 02: Is that evidence submitted with the nod? [00:19:59] Speaker 01: No, that doesn't sound like evidence. [00:20:02] Speaker 02: With all due respect, it doesn't sound like... You have to take my hypothetical. [00:20:09] Speaker 02: We're talking about clear citations to things that can be called up on the computer. [00:20:18] Speaker 02: And you're saying, no, that is not going to be counting as evidence submitted with a nod. [00:20:24] Speaker 01: I look at this from a visual perspective. [00:20:26] Speaker 02: Right, you need it to be a physical copy of some kind of document that is submitted with the knot, literally, and nothing else. [00:20:35] Speaker 02: You have to submit it. [00:20:36] Speaker 02: And nothing else. [00:20:36] Speaker 01: You can't identify it. [00:20:38] Speaker 01: So far, all the hypotheticals are, I'm identifying something, which then triggers, Your Honor, the chain of events that you described in the first argument, which is, well, what do I do now? [00:20:49] Speaker 01: Look, there's some information there. [00:20:50] Speaker 01: Well, let's go find it. [00:20:51] Speaker 01: Those are steps. [00:20:53] Speaker 01: And what do those steps mean? [00:20:55] Speaker 01: they mean the duty to assist. [00:20:57] Speaker 01: That's what this means. [00:20:58] Speaker 01: That's why constructive possession falls away. [00:21:00] Speaker 01: All of that, which is premised on the duty to assist, as the court said in Nuzubio, this whole process, [00:21:08] Speaker 03: Why do you keep saying that the VA has to go find it or go locate it? [00:21:12] Speaker 03: It's already in the file. [00:21:14] Speaker 01: The board has to go find it, your honor. [00:21:15] Speaker 01: But it's already in the file. [00:21:17] Speaker 01: No, it's not in the board's possession. [00:21:20] Speaker 01: That's what the AMA is designed to do to prevent the slog. [00:21:23] Speaker 01: We're going to go right back to the slog. [00:21:25] Speaker 01: Oh, you go look for it, board. [00:21:27] Speaker 01: You have a duty to assist. [00:21:28] Speaker 01: You need to go find it. [00:21:29] Speaker 01: I don't care if you have to go find it from a Federal Circuit docket or you find it from some VA claims file and another related claim or the same claims file. [00:21:36] Speaker 03: I find this case different from the duty [00:21:38] Speaker 03: to assist cases. [00:21:40] Speaker 01: Because there is no duty to assist. [00:21:42] Speaker 03: The information, it's already there. [00:21:44] Speaker 03: It's physically in the possession of the VA. [00:21:48] Speaker 01: This is the process we went through in the 90s and early 2000s that led to the slog. [00:21:53] Speaker 01: This is what Congress reacted to by saying, we're creating clear lanes here. [00:21:57] Speaker 03: So the Congress used the word submit. [00:22:00] Speaker 03: And I think you would agree that this case pretty much hinges on how we interpret that word. [00:22:06] Speaker 01: If the court is going to say. [00:22:08] Speaker 03: So the submit, if I refer to something to you, and I say, if I say something like, the $10 is in your left pocket. [00:22:17] Speaker 03: And you look there, and it's there. [00:22:19] Speaker 03: I mean, you already have it. [00:22:21] Speaker 03: I don't have to hand it to you. [00:22:23] Speaker 03: The other, again. [00:22:25] Speaker 01: This is a hypothetical, right? [00:22:28] Speaker 04: There's never any exchange between lawyers and judges. [00:22:34] Speaker 01: I just want to make that clear for the record. [00:22:36] Speaker 03: Let me make the record clear that there's no money involved in this. [00:22:41] Speaker 01: But Your Honor, you're still asking me to do something. [00:22:43] Speaker 01: I'm going to assist myself by reaching into my pocket and finding that $10 bill. [00:22:49] Speaker 01: That's a duty to assist. [00:22:50] Speaker 01: The answer that Congress provided to the slog was, [00:22:54] Speaker 01: Here are the clear lanes. [00:22:55] Speaker 01: People get in the lanes. [00:22:57] Speaker 01: Don't get in other people's lanes. [00:22:58] Speaker 01: But as counsel indicated, you can get out of a lane and get in another lane, or go through a lane and get out of a lane. [00:23:03] Speaker 01: Those are all flexible options here. [00:23:05] Speaker 01: But what you can't do is go through, get into a lane, and then say, oh, I forgot. [00:23:10] Speaker 01: I didn't bring my evidence with me. [00:23:11] Speaker 01: But, you know, go look for it. [00:23:13] Speaker 01: I mean, your hypothetical, Your Honor, would be you go to the board hearing with the evidence. [00:23:17] Speaker 01: And you show up at the board. [00:23:18] Speaker 01: And the board says, where's your evidence? [00:23:20] Speaker 01: And you say, oh, go look at this citation. [00:23:23] Speaker 01: You have to bring me the evidence. [00:23:24] Speaker 03: That's what Congress created here. [00:23:26] Speaker 03: So do you agree that this case pretty much hinges on the interpretation of the word submit? [00:23:33] Speaker 01: I think this case hinges on the application of the duty to assist that Congress clearly removed from the board after a final decision. [00:23:41] Speaker 03: Your answer is no. [00:23:42] Speaker 01: And so the answer is, well, submit will obviously answer the question too. [00:23:46] Speaker 01: The court could go back and find that he's already been provided all the relief he can get here. [00:23:50] Speaker 01: This is the unusual thing about this case. [00:23:52] Speaker 01: It provides an example of how not to use the AMA, which is what we're here today. [00:23:58] Speaker 01: Like, let's blur the lanes. [00:24:00] Speaker 01: Let's let people completely ignore what Congress said about playing by the rules when it comes to board. [00:24:07] Speaker 04: In other words, submit can include identify. [00:24:10] Speaker 01: Cannot include identified. [00:24:11] Speaker 01: Must actually give the identity report. [00:24:14] Speaker 03: Can they include refer or reference? [00:24:16] Speaker 01: No, nothing has to be given to me. [00:24:19] Speaker 01: You could hypothetically hand me the $10 now. [00:24:22] Speaker 01: If it was within a time period, that would be good. [00:24:24] Speaker 01: But you can't tell me where it is. [00:24:26] Speaker 01: You can't tell me you gave it to me before. [00:24:27] Speaker 01: You have to actually hand it to me. [00:24:28] Speaker 02: So we've got to give you another $10. [00:24:30] Speaker 02: Well, but let me just touch on. [00:24:35] Speaker 02: But the point here is really what [00:24:37] Speaker 02: What did Congress mean by the word submit? [00:24:41] Speaker 02: And I understand why you keep reaching for the, well, the other side wants this to be a duty to assist. [00:24:50] Speaker 02: And I think I've already identified why maybe that's not quite what's going on here. [00:24:56] Speaker 02: You keep shaking your head. [00:24:57] Speaker 02: I mean, the problem we have here is that the word submit actually has a variance of definitions. [00:25:07] Speaker 02: And so we have to select the right one. [00:25:09] Speaker 02: And so one question could be, hey, it could mean all of the definitions, which would, in fact, encompass referring a decision maker to something for their decision maker's consideration. [00:25:24] Speaker 02: So I mean, we're just trying to think this through. [00:25:27] Speaker 02: And I understand. [00:25:30] Speaker 02: Your duty to assist argument seems to not, in my view, correctly characterize what they're asking for, at least not on the facts of this case. [00:25:41] Speaker 02: When the submission already happened, it's on a date certain. [00:25:46] Speaker 02: It's in the file. [00:25:48] Speaker 02: And I don't understand what the burden is. [00:25:51] Speaker 02: I can't see a picture in my mind about how this all of a sudden means the VA now is out to sea and is like searching for the Holy Grail around the planet. [00:26:01] Speaker 02: Where is this February 22 evidence? [00:26:03] Speaker 02: I do not know. [00:26:04] Speaker 02: I cannot find it. [00:26:05] Speaker 02: This is going to take me till past 5 PM. [00:26:08] Speaker 02: This is terrible. [00:26:09] Speaker 01: Inch by inch, this is how we expand what [00:26:14] Speaker 01: people can do under the AMA. [00:26:17] Speaker 01: Oh, this one's OK. [00:26:17] Speaker 01: They mostly have this one. [00:26:20] Speaker 01: And we got an inch. [00:26:21] Speaker 01: And then we get two inches. [00:26:22] Speaker 01: But Congress was very clear here. [00:26:24] Speaker 01: And we don't have to look anywhere farther than the duty to assist statute 5103, capital A itself, which itself uses both terms, identify and submit, and uses them differently. [00:26:36] Speaker 01: You identify stuff, VA will go get it. [00:26:38] Speaker 01: You submit stuff, VA has it. [00:26:41] Speaker 01: But you don't have to do the duty to assist to go get stuff. [00:26:45] Speaker 01: So if you submit it, and it's part of the record under 7113, and it's submitted within that time frame, because that's how the record's defined, you're good. [00:26:53] Speaker 01: So if you had followed up here, Mr. Cash, with his NOD statement saying, I have these other claim streams, there might be helpful evidence there, because that's what Appendix 2930 does. [00:27:04] Speaker 01: It just says, [00:27:05] Speaker 01: It just says, they might be helpful. [00:27:07] Speaker 01: But if you turned around and grabbed those documents and submitted them to the board, you'd be good. [00:27:12] Speaker 01: Now, what he did do is demonstrated an uncanny ability to use the system in the lanes and benefit from this court's decision, the military vet, which prohibited folks from pursuing legal avenues and continuing with regulatory avenues at the same time. [00:27:29] Speaker 01: And as a result of those actions, in other words, pursuing his COPD claim, [00:27:34] Speaker 01: and getting an actual award, and then attaching his GERD and his prostate condition claims, which are the two claims here, to that claim under a supplemental claim. [00:27:45] Speaker 01: He actually got what he wanted. [00:27:46] Speaker 01: If you look at appendix 2930, which is the addendum, counsel says what he wants. [00:27:51] Speaker 01: He wants an exam. [00:27:53] Speaker 01: He wants a review, and he wants an exam. [00:27:54] Speaker 01: He's got these exams. [00:27:55] Speaker 01: They're actually in our record. [00:27:57] Speaker 01: If you look in our record at where we cite [00:28:00] Speaker 01: already he received the medical exams. [00:28:03] Speaker 01: He already received everything that this court could give him on a remand. [00:28:07] Speaker 01: He's already received as part of the other claim stream. [00:28:11] Speaker 01: And that's because under military vet, he can pursue both at once. [00:28:15] Speaker 01: He did it here. [00:28:16] Speaker 01: He's got what he can get. [00:28:18] Speaker 01: This court can offer him no more other than some procedural order to the board to give him what he already got, which was these evaluations. [00:28:26] Speaker 01: And as the court asked earlier, as I understand [00:28:31] Speaker 01: He still has an open road there for further consideration of those direct and secondary service connection claims based on the COPD. [00:28:40] Speaker 04: Thank you, counsel. [00:28:41] Speaker 04: Thank you. [00:28:44] Speaker 04: This Castle Walker has two minutes plus. [00:28:54] Speaker 00: Thank you, Your Honors. [00:28:55] Speaker 00: I'd like to clarify the record in one respect and then make three quick legal points. [00:29:00] Speaker 00: First, this document was in the board's possession. [00:29:02] Speaker 00: The February 22 evidence was submitted in support of a separate board appeal. [00:29:07] Speaker 00: So it is not the case that the board would have to go searching for it. [00:29:10] Speaker 00: It was filed to the board and submitted to the board in that separate claim stream. [00:29:14] Speaker 00: I'd like to make three other separate points. [00:29:16] Speaker 00: First, Judge Raina, I think you're exactly right that this case turns on the interpretation of the word submit. [00:29:21] Speaker 00: And I don't hear the secretary to offer a contrary meaning of submit that can be reconciled with this court's ordinary approach to statutory interpretation. [00:29:29] Speaker 03: So there's a lot of dictionary definitions for submit. [00:29:35] Speaker 03: How are we to filter all that and arrive at the one that you want? [00:29:40] Speaker 00: I think the first place that I would start is that you look at the ordinary meaning near the time of enactment and look at the many, many dictionaries we've pointed to over the course of 50 years that [00:29:51] Speaker 00: support that definition, which is far more capacious. [00:29:53] Speaker 00: The Secretary only points to a handful of online dictionaries that are contemporaneous and don't shed light on what Congress meant in 2017. [00:30:01] Speaker 03: So if you have reference to, that's a submission. [00:30:05] Speaker 00: That's a submission. [00:30:06] Speaker 03: And if that's the case, then the doctrine of constructive position doesn't matter. [00:30:12] Speaker 03: It doesn't have to come in. [00:30:14] Speaker 00: I think that's exactly right, Your Honor. [00:30:16] Speaker 02: What about the government's argument that [00:30:19] Speaker 02: What you're really asking for is to change the word submit to identify. [00:30:23] Speaker 02: And the statute uses identify in other places, which therefore strongly suggests that submit must be something different and other than identify. [00:30:33] Speaker 00: I think that the one word that the secretary left out is that the statute also uses the word file. [00:30:39] Speaker 00: So if we have file, we have submit, and we have identify, each of those are to be given separate meaning. [00:30:45] Speaker 00: I think identify is the low watermark of what presentation to the board could look like. [00:30:50] Speaker 00: And that would be more like the duty to assist. [00:30:52] Speaker 02: I think submit. [00:30:54] Speaker 02: So then what is it about your interpretation of submit that is something more than mere identify? [00:31:00] Speaker 00: It's that these documents are within the board's actual possession. [00:31:03] Speaker 00: And I think that the one thing that's helpful about the duty to assist is illuminating what Mr. Cash is not asking for. [00:31:08] Speaker 00: I would commend this court to look back at 5103A and see the sweeping obligations that the duty to assist imposes on VA adjudicators. [00:31:16] Speaker 00: And the meaning of submit that we're urging looks nothing like that. [00:31:20] Speaker 02: Last question, sorry. [00:31:21] Speaker 02: When are you going to make a decision [00:31:26] Speaker 02: What are you going to do with the supplemental claim denial? [00:31:30] Speaker 00: I'm not sure. [00:31:31] Speaker 00: I know that Mr. Cash obviously has to be continuously pursuing his claims, which would require him to decide which lane he needs to pursue following the supplemental claim denial within a year. [00:31:44] Speaker 00: Under that mark, I'm not sure when he would make that decision. [00:31:47] Speaker 00: But obviously, we're hoping for a decision from this court. [00:31:50] Speaker 03: If there's an alternative pathway here, there's an alternative pathway for your client to seek relief. [00:31:56] Speaker 03: then doesn't that raise some serious finality issues before us? [00:32:00] Speaker 00: I don't think that it raises finality issues because this is the scheme that Congress created that allows veterans to continuously pursue their claims administratively while also preserving in Section 7292 an option to have legal claims fully aired before this court. [00:32:17] Speaker 00: Indeed, this court is the only avenue in which he could have his claims heard by an Article 3 Tribunal as a result of the jurisdictional statute that Congress created. [00:32:27] Speaker 00: So I think interpreting this adjudicated system to essentially strip this court of jurisdiction, if it can't rule on a case fast enough, or the case can't be briefed and resolved fast enough, is something really remarkable. [00:32:38] Speaker 00: And I think we would have expected Congress to be far more expressed if it had intended that result. [00:32:43] Speaker 04: Thank you, counsel. [00:32:45] Speaker 00: Thank you. [00:32:46] Speaker 04: I think it's fair to say both of you have satisfied your respective duties to assist. [00:32:52] Speaker 04: The case is submitted.