[00:00:16] Speaker 04:
Our next case for argument is 24-1075 Crawford versus Collins.

[00:00:43] Speaker 04:
If it's easier for you, Mr. Wells, you can sit at council table.

[00:00:46] Speaker 04:
I think.

[00:00:47] Speaker 04:
You want to come to the podium?

[00:00:49] Speaker 04:
I appreciate it.

[00:00:49] Speaker 04:
Whatever works for you.

[00:00:51] Speaker 01:
Thank you, ma'am.

[00:00:52] Speaker 01:
Thank you, Your Honor.

[00:00:54] Speaker 01:
Just as getting old is imprecise.

[00:00:59] Speaker 04:
I wouldn't know.

[00:01:02] Speaker 01:
Please proceed.

[00:01:09] Speaker 01:
May it please the court, we're here today on another Blue Water case that perhaps started with Procopio and has gone on since the Blue Water Navy Act.

[00:01:19] Speaker 01:
And the issues today are.

[00:01:20] Speaker 01:
legal in nature.

[00:01:21] Speaker 01:
It's not factual, as my friend Mr. Bruskin would say.

[00:01:25] Speaker 01:
I guess the first question is did the board use the correct standard?

[00:01:29] Speaker 01:
If so, if not, was the court below and error not holding them to that correct standard?

[00:01:37] Speaker 01:
I think the second issue goes more to

[00:01:43] Speaker 01:
which basically is a functional abandonment of the consideration of the facts and an inability to explain why they didn't do the facts.

[00:01:52] Speaker 01:
Now, if I could briefly address, I think, what was probably the most egregious of it.

[00:01:59] Speaker 01:
In the case before the board, we presented buddy statements from the pilot of a helicopter that took

[00:02:10] Speaker 01:
Mr. R took Mr. Crawford to Denon.

[00:02:14] Speaker 01:
Denon, he had business to deliver some documents there.

[00:02:17] Speaker 00:
But isn't this all fact-based?

[00:02:20] Speaker 00:
Your Honor.

[00:02:21] Speaker 00:
Where he was is a question of fact beyond our jurisdiction.

[00:02:26] Speaker 00:
That's excellent.

[00:02:27] Speaker 00:
The definition of offshore is statutory.

[00:02:30] Speaker 01:
It is excellent.

[00:02:31] Speaker 00:
And that would give jurisdiction over.

[00:02:33] Speaker 01:
That's an excellent question.

[00:02:34] Speaker 01:
And if you give me about a second just to tie it all together, because this is what I say when I talked about the functional

[00:02:39] Speaker 01:
abandonment of consideration, which implicates all kinds of fundamental fairness and due process concerns, which are certainly legal issues.

[00:02:47] Speaker 01:
But in this particular case, what the board did was ignore the facts.

[00:02:54] Speaker 01:
Ignore the fact that the pilot of an aircraft knows where he's going.

[00:02:58] Speaker 01:
Now, I think we've got to assume that the pilot knew he was going to Da Nang.

[00:03:02] Speaker 01:
He could only go to South Vietnam, North Vietnam, or China.

[00:03:05] Speaker 01:
And if it had been the latter two, he'd have been shot down.

[00:03:09] Speaker 01:
Against that, the board applied a lack of evidence in the shipboard deckwalk.

[00:03:17] Speaker 01:
Well, the problem with that is, first of all, it's pretty well settled.

[00:03:20] Speaker 01:
The absence of facts, again, this is a legal issue, absence of facts is not facts, or absence of evidence is not evidence.

[00:03:29] Speaker 01:
Secondly, the guiding directive for that particular

[00:03:35] Speaker 01:
A deck log, or how to do a deck log, I did enough of those when I was in the Navy, doesn't require that kind of detail.

[00:03:44] Speaker 01:
You cannot put into a deck log everybody that leaves that ship.

[00:03:49] Speaker 01:
When you think about a carrier in a war zone launching 75 to 80 sorties a day,

[00:03:56] Speaker 01:
of combat sorties and sorties, logistic sorties of this kind, it just doesn't make sense.

[00:04:02] Speaker 01:
So I think what implicates the legal issue here, Judge Laurie, in response to the question I was hoping you were asking, is that when you abandon the facts, that is a legal issue.

[00:04:17] Speaker 01:
For example, if the board had found that the grass out there in Lafayette Park is orange with purple polka dots,

[00:04:26] Speaker 01:
That would be a legal issue.

[00:04:28] Speaker 01:
Even though we say it's factual, we know, because we have evidence of pictures, we have evidence of personal experience, that it's not really a factual issue.

[00:04:38] Speaker 01:
There's facts and there's no facts.

[00:04:41] Speaker 01:
There's facts and there's speculation.

[00:04:43] Speaker 01:
And that's what the board did, was engage in speculation.

[00:04:49] Speaker 01:
But to go even to more of a legal issue,

[00:04:52] Speaker 01:
is they use the wrong standard.

[00:04:54] Speaker 01:
How do we know that?

[00:04:55] Speaker 01:
The limits and baselines that are part of the Joint Appendix.

[00:05:02] Speaker 01:
If you look at Joint Appendix number 9, page 91, and compare it with even the ship locator tool on Joint Appendix 62, you'll see that they look at just about the same.

[00:05:19] Speaker 01:
The line does not start at the coastline.

[00:05:22] Speaker 01:
It starts at the baseline, which runs before the out-and-out silence.

[00:05:27] Speaker 01:
That was why it was so important to consider what was in that State Department publication limits and baseline.

[00:05:36] Speaker 01:
And again, I would refer you to the joint appendix

[00:05:45] Speaker 01:
It should have been a little bit better organized on that.

[00:05:48] Speaker 01:
I apologize.

[00:05:49] Speaker 01:
Joint appendix number 86, where it shows the various points, and it shows their actual distance to the mainland.

[00:05:58] Speaker 01:
And none of those are 12 nautical miles as the board held.

[00:06:01] Speaker 03:
I'm sorry.

[00:06:02] Speaker 03:
None of them are what?

[00:06:02] Speaker 03:
Did you say?

[00:06:04] Speaker 01:
None of them are what?

[00:06:04] Speaker 01:
None of them are 12 nautical miles from shore as the board held.

[00:06:09] Speaker 01:
Board said 12 nautical miles from shore?

[00:06:11] Speaker 01:
No.

[00:06:12] Speaker 03:
Well, the government.

[00:06:14] Speaker 03:
has said in its brief that the board's reference to shore in that context was effectively a slip of the tongue, that everybody agrees that the distance is the boundary line that is described, the baseline described by Congress, plus 12 months.

[00:06:35] Speaker 03:
So that is undisputed.

[00:06:38] Speaker 03:
And in fact, as I read the regional office's decision

[00:06:43] Speaker 03:
They used that as their baseline.

[00:06:46] Speaker 03:
So setting aside, if it was, a slip of the tongue by the board, is there any indication that anybody applied the wrong legal standard?

[00:06:57] Speaker 01:
Judge, if I may respectfully disagree, there was one time

[00:07:02] Speaker 01:
I would say that, yeah, that's possible that that particular board member got it wrong.

[00:07:09] Speaker 01:
But there were three different references in there.

[00:07:15] Speaker 01:
And I can get the patient numbers if you'd like, but it was in the board opinion three different times where they used the 12 miles from shore standard.

[00:07:24] Speaker 01:
And so I think that's more than just a slip of the tongue.

[00:07:28] Speaker 01:
Even if it was a slip of the tongue, as we all know, we're limited to the record.

[00:07:34] Speaker 01:
I mean, I could probably give you a lot of details as to why I don't think it's a slip of the tongue, but that wouldn't be proper.

[00:07:41] Speaker 01:
The record itself says 12 miles from shore.

[00:07:45] Speaker 01:
We've had, I'm sorry, I just went off and started to do what I said I wasn't going to do.

[00:07:53] Speaker 01:
I think if you look at the rejection of the debt reckoning track on Joint Appendix 40, that is, in fact, some more evidence that this was not a slip of the tongue.

[00:08:11] Speaker 01:
Because if you look at JA 40,

[00:08:18] Speaker 01:
I'm sorry, let me get to it here.

[00:08:22] Speaker 01:
If you look at JA-40, it basically will say, shows that the area and the dot where the ship was at 0300 is way more, is off the coastline.

[00:08:36] Speaker 01:
This was before the board.

[00:08:37] Speaker 01:
Okay.

[00:08:39] Speaker 01:
If they hadn't used it, and I guess what I'm trying to say,

[00:08:42] Speaker 01:
is if they used the proper standard, they would have said, hm, OK, well, this obviously isn't 12 miles from shore.

[00:08:48] Speaker 01:
It's obviously somewhere else.

[00:08:50] Speaker 01:
But they kept using 12 miles from shore.

[00:08:53] Speaker 03:
OK, what is the provenance of this particular document?

[00:08:58] Speaker 03:
Because it's marked in the lower left-hand corner, Military Veterans Advocacy, which is, I take it, a group you're associated with.

[00:09:07] Speaker 01:
Yes, Your Honor.

[00:09:08] Speaker 03:
Right.

[00:09:08] Speaker 03:
Where does this particular information come from?

[00:09:13] Speaker 01:
Yes.

[00:09:13] Speaker 01:
And if you'll notice on the right, there's another logo, the NASA Blue Water Navy Vietnam Veterans Association.

[00:09:19] Speaker 01:
Right.

[00:09:19] Speaker 01:
I can't read that one, but I'll take your word for it.

[00:09:23] Speaker 01:
I know, Your Honor.

[00:09:24] Speaker 03:
Well, that's fine.

[00:09:27] Speaker 01:
And Blue Water Navy is part of the Military Veterans Advocacy.

[00:09:31] Speaker 01:
Where it comes from is the commander of the Blue Water Navy actually did the debt reckoning.

[00:09:38] Speaker 01:
on this chart on JA-40.

[00:09:41] Speaker 01:
I believe that's in the record.

[00:09:45] Speaker 01:
His name is Michael Yates.

[00:09:47] Speaker 01:
He's a former Navy and worked with us strongly on getting the Blue Water Navy situation adopted, helped us prepare for Prokofio, and so on and so forth.

[00:09:59] Speaker 01:
I actually have checked his chart and his belief here, and it's accurate.

[00:10:07] Speaker 01:
No question that this chart was accurate.

[00:10:11] Speaker 01:
Part of the problem was the board obviously didn't understand nautical issues, because they said it doesn't correlate to the deck wall.

[00:10:18] Speaker 01:
It does.

[00:10:19] Speaker 01:
If you look at it, the ship was in an underway replenishment mode.

[00:10:23] Speaker 01:
It was coming down at a gentle south-southwest

[00:10:27] Speaker 01:
When you're in an underway replenishment, you've got about 200 foot separation when you're dealing with a carrier.

[00:10:36] Speaker 01:
It's 100 foot, 120 foot with a destroyer and a span wire connecting you all together.

[00:10:42] Speaker 01:
You don't want to change course at speed.

[00:10:44] Speaker 01:
So under a normal situation, that carrier probably would not have gone into the designated area.

[00:10:48] Speaker 01:
But in that special operations of underway replenishment, it did.

[00:10:52] Speaker 01:
And if you notice, if you look at the deck logs, once they had the breakaway,

[00:10:56] Speaker 01:
wasn't long before they turned around and headed back up north, because they did want to keep those carriers away from any short batteries that the Vietcong or the NDA would have had.

[00:11:07] Speaker 01:
I hope that is responsive to what you're asking.

[00:11:15] Speaker 01:
Starting to get into my rebuttal time.

[00:11:17] Speaker 01:
Do you all have any other questions, Your Honors?

[00:11:21] Speaker 04:
No.

[00:11:21] Speaker 04:
We'll save the rest of your time for rebuttal.

[00:11:23] Speaker 01:
Thank you, Chief Monahan.

[00:11:43] Speaker 02:
May it please the court?

[00:11:44] Speaker 02:
This court should dismiss most of the challenges that Mr. Crawford brings before the court.

[00:11:50] Speaker 02:
The one arguable legal question, which my friend Mr. Wells discussed with you, Judge Bryson, is whether or not the Veterans Court erred by not acquiring the board to apply the correct standard.

[00:12:01] Speaker 02:
The board used the term shore once.

[00:12:03] Speaker 02:
I think it's understandable given that the Blue Water Navy Act statutory definition of the covered waterways is titled determination of offshore waterways.

[00:12:13] Speaker 02:
And so I think it is a normal offhand use of the word shore to say we are determining 12 nautical miles from the shore.

[00:12:22] Speaker 04:
There's no indication aside from- Did they otherwise use the word baseline?

[00:12:27] Speaker 04:
That's the standard they should have used, right?

[00:12:29] Speaker 04:
12 miles from the baseline.

[00:12:30] Speaker 02:
Is that correct?

[00:12:31] Speaker 02:
They did not use the word baseline.

[00:12:32] Speaker 02:
They did before they got to the analysis, though.

[00:12:35] Speaker 02:
Both the RO and the supplemental statement of the case, the board, and the Veterans Court recited the fact that they were operating under the Blue Water Navy Act definition of offshore waterways in fact.

[00:12:45] Speaker 04:
Where did the board do it?

[00:12:48] Speaker 02:
Appendix 26.

[00:12:49] Speaker 02:
Sure.

[00:12:49] Speaker 04:
Appendix 26.

[00:12:51] Speaker 02:
The bottom of the page, before it gets to its analysis, it says, on January 1, 2019, the Gouwadar Navy Act went into effect, extending the existing presumption of herbicide, Cajun orange exposure under 1116 to include Vietnam veterans who served offshore than 12 nautical miles of the Republic of Vietnam during the period beginning.

[00:13:13] Speaker 04:
Yeah, but that doesn't demonstrate, does it?

[00:13:16] Speaker 04:
It doesn't seem to me to clearly demonstrate an understanding that the 12 miles should be measured from the baseline rather than from the shore.

[00:13:24] Speaker 02:
Well, I suppose that's true, although the fact that it is applying the statutory points, which do.

[00:13:31] Speaker 04:
Well, it's mentioned the right statute, for sure.

[00:13:33] Speaker 04:
But I mean, look, where the 12 miles is to be measured from has kind of be bopped around, right, in time, hasn't it?

[00:13:43] Speaker 04:
We may have said sure, and Congress may have said no, not sure, baseline.

[00:13:47] Speaker 04:
Right?

[00:13:48] Speaker 02:
Well, so I mean, I think it's telling.

[00:13:49] Speaker 02:
In Mr. Crawford's brief, he keeps saying that the RO and the board relied on a 12 miles from the coast.

[00:13:56] Speaker 02:
That's not what they were doing.

[00:13:58] Speaker 02:
I think sure is a natural offhand reference to the eligible waters under the Blue Water Navy Act.

[00:14:03] Speaker 04:
But more importantly here- If that were true, would Congress have needed to come along and

[00:14:07] Speaker 04:
statutorily change what we said?

[00:14:10] Speaker 02:
Yes, because I think what qualifies as the baseline is determined by islands and different geographic features and is complicated.

[00:14:21] Speaker 02:
And that's why Congress didn't leave it up to interpretation in the Blue Water Navy Act.

[00:14:25] Speaker 02:
It said geographic points.

[00:14:27] Speaker 02:
So I think it's also important here to remember that the RO and the board were expressly relying on the part of VA that does military records research

[00:14:36] Speaker 02:
who looked at all of the available evidence to determine.

[00:14:40] Speaker 04:
Is the baseline at the shore or further out in the water?

[00:14:47] Speaker 02:
And Mr. Wells and I had a conversation about that earlier.

[00:14:50] Speaker 02:
I think it's from the baseline.

[00:14:51] Speaker 02:
I mean, that is the express terminology used.

[00:14:53] Speaker 02:
It does not answer my question.

[00:14:54] Speaker 02:
I don't think the baseline and the shore are necessarily synonymous with each other, Your Honor.

[00:15:00] Speaker 03:
And particularly if you view the shore as the coast of the mainland itself, as opposed to islands, for example.

[00:15:06] Speaker 02:
Except that Black's dictionary defines shore as the line between the high water and low water marks along the coast.

[00:15:14] Speaker 02:
Well, I understand.

[00:15:15] Speaker 02:
Coast is a less precise term.

[00:15:17] Speaker 03:
If I say this weekend I'm going out to the Delaware shore, I'm talking about the beach that's part of the mainland, not island.

[00:15:26] Speaker 02:
But there's no indication that the board was using that sort of offhand terminology for shore.

[00:15:32] Speaker 02:
It had just recited the Blue Water Navy Act.

[00:15:34] Speaker 02:
And it, in fact, had information before it that the researchers who certainly know exactly where

[00:15:41] Speaker 02:
the line is drawn in the statute.

[00:15:43] Speaker 02:
Those researchers had determined that the USS Hancock and Ranger had not entered into the territorial waters.

[00:15:49] Speaker 02:
And so that is the evidence that the board was relying on.

[00:15:52] Speaker 02:
The idea that the board should have done its own sea charting exercise seems pretty far afield here.

[00:15:58] Speaker 02:
We want the board members to be relying on the knowledgeable experts within the VA and the military who provide the evidence of where ships were to determine whether or not they entered into the eligible offshore waterways.

[00:16:12] Speaker 02:
The other thing is that it's unclear to me how the allegation that the board used the wrong standard.

[00:16:23] Speaker 03:
Let me make sure I've got the right references for the material that the board was relying on.

[00:16:29] Speaker 03:
You're referring, I take it, to the material at app 55, 56,

[00:16:37] Speaker 03:
57, 58, and up to 60.

[00:16:41] Speaker 03:
Is that the material that the borders were relying on?

[00:16:46] Speaker 02:
I mean, I think they relied on through 65, Your Honor.

[00:16:51] Speaker 02:
I think 63 through 65 are about the helicopters, but the other waters.

[00:16:58] Speaker 02:
And there, the military.

[00:16:59] Speaker 03:
That's it, right.

[00:17:02] Speaker 03:
what we have in the record, representing what the board was relying on when it made its decision.

[00:17:08] Speaker 02:
Right.

[00:17:08] Speaker 02:
And the deck logs and the other things that I believe these researchers relied on were also in the record before the board.

[00:17:15] Speaker 02:
But I don't think the board member did an independent determination, his own C-charting exercise, if you will.

[00:17:21] Speaker 02:
He relied on

[00:17:23] Speaker 02:
the experts within VA who compare the deck logs and the other information to make us on determination.

[00:17:31] Speaker 04:
Is there a dispute counsel about whether the material being relied on in like the 56, 57, the 60, whatever range, whether that properly calculated from what we might think of as the shore, i.e.

[00:17:44] Speaker 04:
the sort of beachfront area, or did it properly calculate from what everyone would

[00:17:50] Speaker 04:
say is the baseline, which is the point that is supposed to be.

[00:17:53] Speaker 04:
Is there a dispute between the parties about what it was actually calculating in these documents?

[00:18:00] Speaker 02:
I don't believe so.

[00:18:01] Speaker 02:
Mr. Crawford's brief does not suggest that that evidence was using the wrong standard.

[00:18:07] Speaker 02:
The allegation that there was a wrong standard use here seems to be simply from the board's one usage of the word shore.

[00:18:14] Speaker 04:
But again, and I was going to- Well, the problem is it had zero usages at the word baseline.

[00:18:18] Speaker 02:
Right.

[00:18:18] Speaker 02:
But it also didn't use the word coast.

[00:18:20] Speaker 02:
So I think the question, as we call it, perhaps regrettable, arguable mis-speak.

[00:18:24] Speaker 02:
Should it have used the word baseline?

[00:18:26] Speaker 02:
That would be clearer.

[00:18:27] Speaker 04:
But I think it is still... Well, I mean, you do agree that the fact they used the word shore is incorrect.

[00:18:33] Speaker 02:
I don't know, Your Honor, because the statute says the 1116A says it is determining the eligible offshore waterways.

[00:18:41] Speaker 02:
Offshore.

[00:18:41] Speaker 02:
So 12 nautical miles offshore.

[00:18:43] Speaker 02:
Correct.

[00:18:43] Speaker 02:
So not onshore.

[00:18:44] Speaker 02:
Offshore.

[00:18:45] Speaker 02:
Right, Your Honor, but so... So not the shore, but off of the shore.

[00:18:48] Speaker 02:
Correct?

[00:18:49] Speaker 02:
Correct.

[00:18:49] Speaker 04:
Those geographic points... So is it correct or is it incorrect to say shore?

[00:18:55] Speaker 02:
I don't know the answer to that, Your Honor.

[00:18:57] Speaker 04:
How could you not?

[00:18:58] Speaker 04:
If the statute says we're going to measure from a place offshore, we're going to take it offshore, then being on the shore can't be the correct place to measure.

[00:19:06] Speaker 02:
I see what you're saying, Your Honor.

[00:19:07] Speaker 02:
Yes, I mean, that is why we said it was a regrettable misfeed by the board.

[00:19:11] Speaker 02:
But there's still no indication that the board member looked at any of the points where the USS Hancock

[00:19:18] Speaker 02:
was and said, well, you are not within 12 miles of any incorrect standard.

[00:19:24] Speaker 02:
It simply said, all of the naval deck logs show that your ship was far outside.

[00:19:31] Speaker 02:
And the only evidence you presented that your ship entered is at appendix page 40.

[00:19:35] Speaker 02:
It could not verify where that map came from, nor could it verify the data it was showing.

[00:19:41] Speaker 02:
And in fact, the board made a credibility determination that that one point inside of the territorial sea, which, again, that map is from Mr. Crawford's organization, the one that's represented.

[00:19:54] Speaker 04:
Where the board on page 27 used the word from shore

[00:19:58] Speaker 04:
Here's where it seems, unless I'm mistaken, I think here's where it's relying upon those pages 56, 57, and I'm just a little uncertain.

[00:20:07] Speaker 04:
It says, after determining each ship's location from deck logs and other official records, it was determined by VA researchers that neither ship was 12 nautical miles or closer to the Vietnam shore.

[00:20:20] Speaker 04:
Where can I actually see the determination by the VA researchers?

[00:20:24] Speaker 02:
At 56, appendix 56.

[00:20:31] Speaker 04:
Page 56.

[00:20:32] Speaker 02:
I'm sorry, one getting past that.

[00:20:35] Speaker 02:
I'm sorry, 60, Your Honor.

[00:20:37] Speaker 02:
So 60 is the determination as to the USS Ranger.

[00:20:41] Speaker 02:
And 61 is the determination as to the USS Hancock.

[00:20:44] Speaker 04:
So walk me through it.

[00:20:47] Speaker 04:
On page 60, which you said is the determination as to the USS Ranger, where exactly is it the veteranship did not travel in the territorial waters of the Republic of Vietnam?

[00:20:57] Speaker 04:
Is that the determination right there?

[00:20:58] Speaker 02:
Yes, Your Honor.

[00:21:00] Speaker 02:
And there's no contention.

[00:21:02] Speaker 02:
in Mr. Crawford's brief that these researchers were using the wrong standard.

[00:21:07] Speaker 02:
There's no contention that the supplemental statement of the case, which expressly relies on that, and references the Blue Water Navy Act at appendix page 57, was using the wrong standard.

[00:21:17] Speaker 02:
The only allegation

[00:21:19] Speaker 02:
that there was an incorrect standard as the one reference to shore by the board.

[00:21:23] Speaker 02:
The Veterans Court did not find that to be.

[00:21:27] Speaker 04:
How do we know?

[00:21:28] Speaker 04:
I mean, they just say territorial waters.

[00:21:31] Speaker 04:
How do we know where they were measuring from to determine what constituted the territorial waters?

[00:21:51] Speaker 02:
I mean, there is a map that is provided at appendix page 62, which shows where the Blue Water Navy ship locator dashboard had demarcated the territorial waters versus the blue water that's covered versus the brown water.

[00:22:09] Speaker 02:
I'm not a map reader myself, Your Honor.

[00:22:12] Speaker 03:
So is that blue area, that is the territorial water, or the territorial waters plus 12 miles?

[00:22:19] Speaker 02:
That's how I understand it.

[00:22:20] Speaker 03:
Which of those is it?

[00:22:22] Speaker 03:
What's that?

[00:22:22] Speaker 03:
I'm sorry.

[00:22:22] Speaker 03:
Which of those is it?

[00:22:23] Speaker 02:
I think it's the outer boundary there.

[00:22:25] Speaker 03:
So territorial waters plus 12 miles.

[00:22:28] Speaker 02:
Well, the territorial waters are the 12 miles.

[00:22:30] Speaker 02:
12 miles from a baseline is the territorial waters that are covered by the blue water.

[00:22:33] Speaker 03:
Well, but there's a baseline, and then you go 12 miles from the baseline.

[00:22:38] Speaker 03:
So my question is, is this marking the baseline, or is it marking 12 miles beyond the baseline?

[00:22:45] Speaker 02:
I think it shows both, Your Honor.

[00:22:46] Speaker 02:
The outer line is the 12 miles.

[00:22:48] Speaker 02:
So the ship needs to enter that outer line.

[00:22:51] Speaker 02:
We're looking at 62.

[00:22:52] Speaker 03:
I'm looking at 62.

[00:22:53] Speaker 03:
62 has orange, which is mainland, as I understand it.

[00:22:59] Speaker 02:
Oh, I'm sorry.

[00:23:00] Speaker 02:
My map is in black and white, Your Honor.

[00:23:02] Speaker 02:
My map is in black and white, so I apologize.

[00:23:04] Speaker 04:
I think orange says under the legend, brown water.

[00:23:07] Speaker 04:
Right?

[00:23:07] Speaker 04:
Does it say brown water under the legend for orange?

[00:23:10] Speaker 04:
See there on the bottom left?

[00:23:12] Speaker 04:
The legend.

[00:23:15] Speaker 04:
I think that's the country, but the legend is a little confusing.

[00:23:18] Speaker 04:
It says brown water.

[00:23:19] Speaker 04:
It sure is, because I think brown water is not the ocean, right?

[00:23:23] Speaker 03:
Whatever it is.

[00:23:24] Speaker 02:
Correct.

[00:23:25] Speaker 03:
OK.

[00:23:27] Speaker 02:
I mean, I think it could be the bays and harbors, though, Your Honor.

[00:23:29] Speaker 02:
So I don't want to say entirely.

[00:23:33] Speaker 03:
I know enough about geography to know that Cambodia is in between Cambodia and the sea.

[00:23:41] Speaker 02:
Now that you've explained the coloring, I agree with you.

[00:23:43] Speaker 02:
It seems to be showing the... So all I say is I cannot tell from looking at this exactly if it is showing the baseline or if it is showing...

[00:23:53] Speaker 02:
the territorial waters.

[00:23:53] Speaker 02:
I believe, given that the legend for the outer strips says blue water, it is showing what is the eligible offshore water.

[00:24:00] Speaker 04:
Well, because you're assuming they measured from the right place.

[00:24:02] Speaker 02:
Well, there's been an allegation that they didn't, that the researchers didn't, or that the RO didn't.

[00:24:07] Speaker 02:
The allegation here is that the board member didn't do so because of the reference to shore.

[00:24:12] Speaker 02:
That's the challenge that Mr. Wells is raising here.

[00:24:15] Speaker 02:
And the Veterans Court simply didn't find

[00:24:17] Speaker 02:
any evidence to support the contention that the board, though it used the word sure, was applying anything but the correct standard based on the evidence that was presented.

[00:24:27] Speaker 04:
They used the word sure, which indicates they're applying the wrong standard by using the word sure.

[00:24:32] Speaker 04:
You pointed us to these pages.

[00:24:34] Speaker 04:
and said, okay, they may have misspoken, but they then demonstrated what they were relying upon, which you pointed us to these pages, and you suggested this material, what they rely upon clarifies that they didn't do it erroneously.

[00:24:48] Speaker 04:
So they didn't have to allege this material was erroneous.

[00:24:53] Speaker 04:
You pointed us to this in order to use this to overcome the clear mistake.

[00:25:00] Speaker 04:
in the board's opinion.

[00:25:01] Speaker 04:
And I'm, so you're the one who has to prove to me that this demonstrates that the board was not measuring from shore.

[00:25:09] Speaker 04:
He doesn't have to prove to be the other way around because the board said the wrong thing.

[00:25:15] Speaker 04:
And so if you're going to point me to this material, this material has to make it clear to me that even though they had a slip of the tongue, they measured from the right place.

[00:25:22] Speaker 04:
And so I'm struggling to see that.

[00:25:24] Speaker 02:
Well, I mean, one thing would be if looking at appendix page 40, which is the map that Mr. Crawford relies on, which shows arguably the only data point to suggest that either of his ships entered the eligible offshore waterways.

[00:25:38] Speaker 02:
That map is from the MVA, the Blue Water Navy Vietnam Veterans Association.

[00:25:44] Speaker 02:
So I assume that Mr. Crawford accepts the territorial sea marker in that map.

[00:25:50] Speaker 04:
What page are we on?

[00:25:51] Speaker 02:
Appendix page 40.

[00:25:52] Speaker 02:
This is the map that.

[00:25:54] Speaker 02:
Mr. Crawford relies on to show that for one moment in time, he alleges the USS Hancock entered what he considers the territorial waters of Vietnam.

[00:26:06] Speaker 02:
It is unclear.

[00:26:07] Speaker 02:
The board said, this is an outlier.

[00:26:09] Speaker 02:
It couldn't rely on this.

[00:26:10] Speaker 02:
It did not find it credible and persuasive.

[00:26:12] Speaker 02:
The Veterans Court found no clear error in that.

[00:26:14] Speaker 02:
So that's not something this court can review.

[00:26:16] Speaker 02:
There has been no suggestion.

[00:26:18] Speaker 02:
that had the board applied the right standard versus applying the wrong standard, that there would be more data points to suggest that he had entered the territorial seas of Vietnam.

[00:26:30] Speaker 02:
There's no argument that these other plot points on this map from the USS Hancock are within the correct definition of the offshore waterways versus the incorrect standard.

[00:26:41] Speaker 02:
So again, it comes down to just this one data point.

[00:26:44] Speaker 02:
And it is the only time the USS Hancock entered

[00:26:48] Speaker 02:
what Mr. Crawford believes to be the territorial sea.

[00:26:51] Speaker 02:
So this suggestion that there was a wrong standard applied doesn't seem like it would change the fact that the board did not find this evidence of the USS Hancock entering the territorial sea to be credible and persuasive evidence, which this court obviously can't overturn.

[00:27:07] Speaker 04:
Well, I don't know, because now you're sort of wading into a harmless error argument that wasn't made by anyone and that I think would necessitate some fact finding, which I surely can't do.

[00:27:18] Speaker 02:
Well, I don't think this court can make a harmless air analysis.

[00:27:21] Speaker 02:
But again, we don't believe that the board applied the wrong standard.

[00:27:24] Speaker 02:
The Veterans Court did not agree with Mr. Crawford that the board had applied the wrong standard.

[00:27:29] Speaker 04:
And again, the only evidence that- What do I do if it's unclear?

[00:27:33] Speaker 04:
You tell me, objectively in the law, what do I do if it's unclear to me whether the board applied the correct standard or not?

[00:27:40] Speaker 02:
Well, I think the problem is that's really a reasons and bases question.

[00:27:43] Speaker 02:
Did the board sufficiently explain that it was applying the Blue Water Navy Act standard?

[00:27:49] Speaker 02:
The Veterans Court found that it did, and that it set forth that it was applying the Blue Water Navy Act standard, and it was riding on evidence.

[00:27:56] Speaker 04:
But don't I review that de novo?

[00:27:57] Speaker 04:
That's a legal question, right?

[00:27:59] Speaker 04:
What is the legal standard?

[00:28:02] Speaker 02:
You're saying that the problem is you don't think the board adequately explained exactly how it was applying the standards.

[00:28:07] Speaker 04:
No, wrong.

[00:28:08] Speaker 04:
The problem is the board used the wrong, they actually articulated the incorrect standard by saying measured from sure.

[00:28:14] Speaker 04:
The board definitely articulated the incorrect standard.

[00:28:18] Speaker 04:
You'd like me to wash it away as a slip of the tongue, but I'm not.

[00:28:21] Speaker 04:
Unfortunately, you haven't walked me through to demonstrate to me how the opinion makes it clear that despite using the wrong words, they actually measured from the right place.

[00:28:30] Speaker 04:
And that's what I'm struggling with.

[00:28:31] Speaker 04:
So what do I do in this situation?

[00:28:33] Speaker 04:
Do I have jurisdiction?

[00:28:34] Speaker 04:
Do I not have jurisdiction?

[00:28:36] Speaker 04:
If there is this kind of confusion, do we send it back?

[00:28:39] Speaker 02:
I don't believe the court has jurisdiction.

[00:28:41] Speaker 02:
I think these are all, at their base, quintessentially factual determinations made by the board as to the evidence or, there, the application of law to facts.

[00:28:50] Speaker 04:
Is it a factual determination whether you measure from shore?

[00:28:53] Speaker 04:
Or from the baseline.

[00:28:54] Speaker 02:
No, but again, the only indication that's a legal determination.

[00:28:57] Speaker 02:
That is a legal determination.

[00:28:58] Speaker 02:
The Veterans Court reviews in the first instance and found that it had applied the correct standard.

[00:29:03] Speaker 04:
But we also review that de novo.

[00:29:05] Speaker 02:
True, Your Honor.

[00:29:06] Speaker 02:
But the fact is that the only suggestion here that the board applied the incorrect standard and that it would make a difference in this case is that one offhand reference to the word sure.

[00:29:17] Speaker 02:
And the only data point it could affect is that one dead reckoning data point, which the board found to be not credible.

[00:29:23] Speaker 02:
So a remand here to apply to more clearly expressly apply the Blue Water Navy Act standard would lead nowhere, because the only data point he presents that his ship entered the territorial waters is a map that he says shows what he believes is the territorial waters.

[00:29:39] Speaker 02:
And so it would not change the fact that the only evidence that his boat entered any definition of the territorial waters was found to be not credible and persuasive.

[00:29:50] Speaker 02:
Unless the court has any further questions, we'd ask the court to dismiss, impart, and affirm.

[00:30:10] Speaker 01:
Your Honor, if I could focus back on Appendix 40, as my esteemed colleague, Mr. Bruskin, pointed out.

[00:30:17] Speaker 01:
It does show one data point.

[00:30:19] Speaker 01:
It actually shows a lot of data points, but one data point showing inside territorial sea or the offshore area, however you want to describe it.

[00:30:27] Speaker 01:
And that's all we really have to show.

[00:30:30] Speaker 01:
But as to the accuracy of this chart,

[00:30:35] Speaker 01:
You know, we know the geographic points of the baseline because it's in the Blue Water Act.

[00:30:41] Speaker 04:
But didn't the board reject this chart and conclude that it wasn't credible and that this point that you showed that there is no evidence to support the idea that the USS Hancock was actually in that location?

[00:30:54] Speaker 01:
Judge, they rejected and said it was not credible that the pilot knew where he landed in Da Nang, Vietnam.

[00:31:02] Speaker 04:
But I can't challenge that.

[00:31:03] Speaker 04:
That's a question of fact.

[00:31:04] Speaker 04:
Well, it is.

[00:31:05] Speaker 04:
Don't squirt around it.

[00:31:07] Speaker 04:
It is.

[00:31:07] Speaker 04:
It might not be.

[00:31:08] Speaker 04:
It is.

[00:31:08] Speaker 04:
It's a question of fact.

[00:31:09] Speaker 04:
I can't decide whether it was credible or not credible.

[00:31:13] Speaker 04:
That's a question of fact.

[00:31:14] Speaker 01:
I understand that.

[00:31:15] Speaker 01:
But it also indicates due process if they apply the wrong standard.

[00:31:19] Speaker 01:
If you put in the standard that if we say this is the Federal Circuit,

[00:31:22] Speaker 01:
And the board finds that it's really a DC circuit.

[00:31:26] Speaker 01:
Something's wrong there.

[00:31:28] Speaker 01:
And it offends both fundamental fairness and due process, which is definitely a legal issue.

[00:31:34] Speaker 04:
I do not understand anything you just said.

[00:31:35] Speaker 01:
It makes no sense.

[00:31:38] Speaker 01:
Sorry.

[00:31:38] Speaker 03:
Let me ask you this.

[00:31:41] Speaker 03:
Suppose we were to conclude that the only problem in this case was the board's statement, their reference to shore.

[00:31:52] Speaker 03:
uh, think that a remand to the Veterans Court contemplating possibly a further remand to the board.

[00:32:02] Speaker 01:
Yes.

[00:32:02] Speaker 03:
Would be an appropriate remedy.

[00:32:05] Speaker 03:
And when I asked that, what I'm really asking is, do you realistically expect you would get anything from such a remand?

[00:32:13] Speaker 01:
Yes, we will.

[00:32:14] Speaker 03:
Because, uh, keeping in mind that we would be asking only for clarification.

[00:32:21] Speaker 03:
of the use of the word shore.

[00:32:23] Speaker 03:
Did they mean to say territorial waters slash baseline to refer to the statutory standard as opposed to 12 miles from the coastline?

[00:32:36] Speaker 01:
That's an interesting question, Judge Price.

[00:32:40] Speaker 01:
We would actually.

[00:32:42] Speaker 03:
Keeping in mind that the premise of my question is you don't get to litigate any of the rest of the issues in this case.

[00:32:48] Speaker 03:
That would be it.

[00:32:49] Speaker 03:
Do you get anything from that realistically?

[00:32:51] Speaker 01:
Realistically, it's better than a dismissal.

[00:32:54] Speaker 01:
And the Veterans Court may choose to then allow us to provide additional information, and I think would be appropriate on their part.

[00:33:09] Speaker 01:
So yes, we would look with favor upon a remand, Your Honor, if you would, in the Court's wisdom, be willing to do that.

[00:33:20] Speaker 01:
But, you know, I think when this whole thing came up under Procopio.

[00:33:30] Speaker 01:
and under Congress, there was some built-in confusion.

[00:33:37] Speaker 01:
I know Judge Laurie and your Bocopio concurrence said that, geez, there was some ambiguity, and it may even have gone out past what we were calling at the time the territorial sea line.

[00:33:50] Speaker 01:
And it does need to be clarified.

[00:33:54] Speaker 01:
It needs to be clarified because these types of errors are being made constantly.

[00:33:59] Speaker 03:
Well, it seems to me that the statute is about as clear as any statute ever gets.

[00:34:04] Speaker 03:
It gives you the exact coordinates of the line that is, if you're within it, you're covered.

[00:34:13] Speaker 03:
If you're not, you're not.

[00:34:14] Speaker 01:
Exactly, Your Honor.

[00:34:15] Speaker 01:
And if you'll notice since I started saying that.

[00:34:17] Speaker 03:
I don't know what clarification is needed to the guideline given by the statute.

[00:34:22] Speaker 03:
The only question is, did the board comply with the statutory requirement?

[00:34:27] Speaker 01:
The problem is,

[00:34:28] Speaker 01:
The board and, you know, with all respect to Mr. Ruskin talking about the so-called VA experts, they don't understand how to plot.

[00:34:38] Speaker 01:
They don't understand how to plot.

[00:34:41] Speaker 01:
You know, even the ship's locator tools, what it does is take the headings, for example, on appendix 32.

[00:34:48] Speaker 01:
It takes the headings, 0, 8, 1,200, 2,800 fixes, and then uses them for the ship locator tool.

[00:34:57] Speaker 01:
It does not measure the course of speed.

[00:34:59] Speaker 03:
But now we're back in the realm of pure fact.

[00:35:02] Speaker 01:
I understand, sir.

[00:35:03] Speaker 01:
I was just trying to explain.

[00:35:04] Speaker 01:
All right.

[00:35:05] Speaker 01:
In the same way, on appendix 40, we do have the latitude and longitude

[00:35:13] Speaker 01:
Mark there and it's, it's pretty, if you look at it, you know, it kind of gives you an idea.

[00:35:18] Speaker 01:
That's why I'd say, sure.

[00:35:20] Speaker 01:
We take the remand because based on this record and based on what was before the veteran or the, uh, the board, we would be able to say, look, this is, this is where it starts.

[00:35:32] Speaker 01:
It correlates completely with statute.

[00:35:35] Speaker 01:
And, uh, therefore, you know, uh, it should go to the better.

[00:35:41] Speaker 01:
Judge, and Judge Moron, I hope you don't think I was giving you a hard time.

[00:35:44] Speaker 01:
I wasn't trying to dance around.

[00:35:46] Speaker 01:
I was just trying to perhaps explain.

[00:35:48] Speaker 04:
You were doing a jig right there at the podium is what you were doing.

[00:35:50] Speaker 01:
I'm sorry?

[00:35:51] Speaker 04:
I said you were doing a jig at the podium.

[00:35:52] Speaker 04:
You were definitely dancing around.

[00:35:53] Speaker 01:
Wow, Judge.

[00:35:54] Speaker 04:
You're trying to convert fact into law.

[00:35:56] Speaker 01:
Look, when you're like this, you have to dance when you can.

[00:36:00] Speaker 01:
But I guess to me, you know,

[00:36:06] Speaker 01:
The whole problem with, perhaps, the lack of expertise at the board really does offend due process.

[00:36:11] Speaker 01:
I don't know how to fix that.

[00:36:13] Speaker 01:
I'm not sure that this court can, because it's more than just this case.

[00:36:18] Speaker 01:
But it is symptomatic of the fact that Congress intended this to be a non-adversarial system in which the veterans got the benefits they deserved.

[00:36:30] Speaker 01:
And unfortunately, through

[00:36:34] Speaker 01:
it has become anything best, Your Honor.

[00:36:38] Speaker 01:
Again, if I danced too much, I apologize.

[00:36:43] Speaker 01:
No problem, Mr. Wells.

[00:36:44] Speaker 04:
We thank both counsels.

[00:36:45] Speaker 04:
The case is taken under submission.

[00:36:47] Speaker 01:
Thank you, Your Honor.