[00:00:00] Speaker 01: I'd like to start today by welcoming Judge Scarzy. [00:00:05] Speaker 01: We're very excited to have him sit with us today. [00:00:07] Speaker 01: It's always a great pleasure for us to get to have district court judges, and especially one with as much experience in our relevant fields as he has. [00:00:17] Speaker 01: So thank you for joining us today. [00:00:20] Speaker 01: Thank you very much. [00:00:21] Speaker 01: OK, our first case for argument is 23-2358, Harrington v. Collins. [00:00:27] Speaker 01: Council, how do I say your name? [00:00:29] Speaker 03: Dohacus, Your Honor. [00:00:30] Speaker 01: Mr. Dohacus, please proceed. [00:00:32] Speaker 03: Thank you, Your Honor. [00:00:33] Speaker 03: May it please the Court, Kenny Dohacus, representing the Appellant. [00:00:37] Speaker 03: On behalf of Mr. Harrington, I want to thank this Court for the opportunity to present his appeal. [00:00:42] Speaker 03: We are here seeking a ruling that recognizes the proper standard of review under 38 CFR 4.20 when the VA selects an analogous code for an unlisted condition. [00:00:53] Speaker 03: Mr. Harrington asked this court to find that although the identification of specific diagnoses and symptomatology may be factual, the determination under 4.20 that an unlisted condition is closely related to a listed one is a question of law. [00:01:08] Speaker 01: So whether you fall within a listed condition is a question of fact. [00:01:12] Speaker 03: Yes, Your Honor. [00:01:13] Speaker 01: Then how could, whether you aren't within a listed condition, but you're analogous to one, how can that be anything other than a question of fact? [00:01:20] Speaker 01: It seems even more facty than the first question. [00:01:25] Speaker 03: I disagree with that, Your Honor. [00:01:26] Speaker 03: I think that when we're looking at whether it is closely analogous, we're looking at a specific term in, I'm sorry, closely related, we're looking at a specific term in the regulation which has a very specific definition, which is a regulatory interpretation matter. [00:01:41] Speaker 03: Then looking at the findings of fact made by the board, which become undisputed at some point after it's been filtered through the Veterans Court's clearly erroneous review, we're looking purely at whether those specific findings of fact match the definition under the regulation of closely related. [00:02:04] Speaker 01: You're looking at whether specific findings of fact meet a definition under closely related. [00:02:10] Speaker 01: At best, that sounds like application of law to fact then, right? [00:02:14] Speaker 03: It can be, Your Honor, and I wanted to, in preparing for this, we will [00:02:20] Speaker 00: You just answered her question by saying it can be. [00:02:22] Speaker 03: Well, let me explain. [00:02:25] Speaker 00: So maybe I think for you to still have jurisdiction be proper here, tell us why you think it would not be. [00:02:31] Speaker 03: Yes, so in preparation, and I will offer supplemental authority after briefing, [00:02:37] Speaker 03: We ran across Miller v. Fenton, 474 U.S. [00:02:42] Speaker 03: 104. [00:02:45] Speaker 03: This is a case that deals with this specific question of when a question is legal or factual. [00:02:54] Speaker 03: Is this one of our cases? [00:02:57] Speaker 03: This is a Supreme Court case, Your Honor. [00:02:59] Speaker 03: The court considered whether a confession's voluntariness should be a legal or factual question. [00:03:07] Speaker 03: And they highlighted that although there are many factual... When was it decided? [00:03:10] Speaker 03: 1985, Your Honor. [00:03:12] Speaker 01: Seems a little late for supplemental authority, doesn't it? [00:03:17] Speaker 01: Supplemental authority, like a Rule 28J letter, is usually something that you bring because it came up recently and you didn't have access to it when you wrote your blue brief. [00:03:28] Speaker 03: Correct, Your Honor. [00:03:29] Speaker 01: OK, all right, well, keep going. [00:03:31] Speaker 03: And we raise this because it reinforces the primary argument in looking at whether it's a factual or a legal issue. [00:03:42] Speaker 03: It's assessing which entity, the fact finder, the board, or the appellate court is in a better position to make those kinds of determinations. [00:03:52] Speaker 01: Do you think you need to be [00:03:56] Speaker 01: Do you think our decision of whether or not a particular DC code is appropriate is correctly deemed a question of fact? [00:04:10] Speaker 03: When it's a listed condition, Your Honor, it is absolutely a question of fact. [00:04:15] Speaker 03: Because the fact finder says you have arthritis, there's a diagnostic code for arthritis. [00:04:19] Speaker 03: It has to be that. [00:04:20] Speaker 03: There's no other option. [00:04:21] Speaker 00: And although it is a... Why would it not be a question of fact for a condition that is not listed? [00:04:27] Speaker 03: Again, Your Honor, because looking at which typically the courts have said, as we argued in our briefs, that when the appellate court is either a better or the agency in this case is not the better entity to make that kind of determination, there's no real expertise that's involved in determining whether it's closely related under the regulation. [00:04:54] Speaker 03: uh... you wouldn't seem like there's more expertise involved here in trying to come up with an analogous code wouldn't be more expertise than just applying that standard code of the facts no your honor the expertise is used to determine the diagnoses and and the underlying facts of what is what is a veteran diagnosed with what kind of condition uh... what are symptoms what are his impairments what are his disabilities and those all go into finding an analogous code and then those go into [00:05:22] Speaker 03: the factual underpinnings, and then the legal question becomes whether it's closely related to A, B, or C, depending on whatever situation the veteran is finding themselves in. [00:05:35] Speaker 04: You indicated in your brief this is a question of regulatory interpretation. [00:05:39] Speaker 04: What needs to be interpreted in 420? [00:05:41] Speaker 04: What's the ambiguous language that needs to be interpreted as a matter of regulatory interpretation? [00:05:47] Speaker 03: Well, we don't assert that anything's ambiguous, Your Honor, but we do think that the court needs to initially address what is closely related under the regulation and what are the outer bounds of that within the regulatory definition using the normal tools of interpretation as outlined in Kaiser and Loper-Brite. [00:06:06] Speaker 03: So that is the primary phrase that needs to be interpreted. [00:06:11] Speaker 03: And then whether an unlisted condition is closely related to another, then again, we're asserting is a legal question as opposed to factual. [00:06:20] Speaker 04: And I'm sorry, what's the primary phrase that needs to be interpreted? [00:06:23] Speaker 03: Closely related. [00:06:24] Speaker 03: So the beginning of the regulation, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury. [00:06:33] Speaker 03: And then it gives some guidance on kind of [00:06:37] Speaker 03: what to do with that. [00:06:38] Speaker 03: But the primary phrase is closely related. [00:06:41] Speaker 03: And what does that mean? [00:06:42] Speaker 04: And isn't closely related going to depend on a case-by-case basis? [00:06:48] Speaker 03: Well, certainly, each case is going to be dependent upon, again, the facts, undisputed facts, as found by the board. [00:06:55] Speaker 04: So how would you contend the court should construe the phrase closely related? [00:07:04] Speaker 04: I mean, it's a question of regulatory interpretation. [00:07:06] Speaker 04: What are the other words that get plugged in there? [00:07:08] Speaker 03: So again, it's focused on primarily a disease or injury, and then the regulation gives some additional information, affected functions, anatomical location, and symptomatology. [00:07:23] Speaker 03: Those would help to reinforce what does that phrase mean in determining whether, again, under a legal ruling, a unlisted condition is analogous to one of the listed ones. [00:07:37] Speaker 04: And aren't those all questions of fact? [00:07:42] Speaker 03: Again, Your Honor, our position is that the facts are found by the board that identifies the diagnoses, the symptomatology, the impairments in disability. [00:07:52] Speaker 03: And then once those are established, they become undisputed. [00:07:55] Speaker 03: This court has recognized numerous times that application of undisputed facts to the law is a question of law. [00:08:01] Speaker 03: And we think, again, that because the Veterans Court, which, by the way, [00:08:07] Speaker 03: a couple decades of experience in this particular field because that's all they look at. [00:08:14] Speaker 03: So even though, yes, the agency in normal district courts and normal other courts and jurisdictions don't necessarily specialize, this one does specialize. [00:08:24] Speaker 03: And so again, I think that that leans towards making a finding that the veteran, that is a legal question as opposed to a factual one. [00:08:39] Speaker 03: Um, if there are no other questions, I will preserve the rest of my time for rebuttal. [00:08:43] Speaker 01: Okay, very good. [00:08:44] Speaker 01: Thank you, Council. [00:08:46] Speaker 01: Council, how do I say your name? [00:08:48] Speaker 02: Maeger. [00:08:49] Speaker 01: Mr. Maeger, please proceed. [00:08:51] Speaker 02: Thank you, Your Honor. [00:08:52] Speaker 02: May it please the Court. [00:08:53] Speaker 02: The Veterans Court correctly held that the assignment of a particular diagnostic code when rated by analogy is not a pure legal question to be reviewed in OVO, but is properly subject to review under the arbitrary coercion and abuse of discretion standard. [00:09:07] Speaker 01: Council on the other side made a bunch of arguments as he stood here at the podium that weren't familiar to me. [00:09:13] Speaker 01: I don't recall those being developed in his brief. [00:09:18] Speaker 01: Do you agree with that, or do you have a problem with it? [00:09:21] Speaker 01: And how do you feel about this 1985 Supreme Court case, which I've got the text of here, and I'm [00:09:26] Speaker 01: sort of struggling to see how it relates, and perhaps you're not. [00:09:29] Speaker 01: Are you prepared to discuss that case? [00:09:31] Speaker 02: No, Your Honor, I have not looked at that case. [00:09:33] Speaker 01: I mean, I'm going to ask him on rebuttal, so he'll tell us. [00:09:36] Speaker 01: When he figured out that he thought that case was suddenly important, because it feels like one of those things that you'd put the court on notice of, you'd put opposing counsel on notice of, so it could be the subject of discussion if you really think it is your opening point. [00:09:50] Speaker 01: And so I respect that you're not prepared to discuss it, neither am I. So go ahead. [00:09:54] Speaker 02: And that's fine, your honor. [00:09:55] Speaker 02: And I mean, I understand that sometimes things do come up in review, but I cannot address those cases that I have not seen before. [00:10:02] Speaker 02: I cannot distinguish those cases. [00:10:04] Speaker 02: I cannot say how, you know, Miller versus Fenton in 1985 case on confessions. [00:10:09] Speaker 02: would relate to any recent Supreme Court precedent in veterans cases or any of these court's decisions. [00:10:15] Speaker 00: Let me ask you a question just to level set. [00:10:19] Speaker 00: Are you asking us for a dismissal for lack of jurisdiction, or are you asking us to affirm? [00:10:24] Speaker 00: What is the relief you're seeking? [00:10:25] Speaker 02: No, we're asking you to affirm. [00:10:27] Speaker 02: Because the reason why is because what they have raised is they have said that the Veterans Court [00:10:33] Speaker 02: applied an improper legal standard itself. [00:10:36] Speaker 02: So as opposed to this court having, you know, if they were directly challenging, say, the particular rating, that this court would not have jurisdiction over. [00:10:47] Speaker 02: I think that would be pretty clear. [00:10:48] Speaker 02: But here, they're raising a legal challenge. [00:10:51] Speaker 02: But their legal challenge requires the finding that, ultimately, these issues are legal questions that should have been subject to novel review at the Veterans Court. [00:11:02] Speaker 02: And that's incorrect. [00:11:03] Speaker 02: taking even a minute looking at the record and the board decision below, it's quite clear that the board's decision was based upon questions of fact, just giving a few citations at 128 of the attendance. [00:11:16] Speaker 01: But nobody here is asking us to decide facts questions or a mixed question of law. [00:11:20] Speaker 01: In fact, the only question we have in front of us [00:11:22] Speaker 01: is what should the standard be that the Veterans Court used to review should it have been treated as a purely legal question when they were trying to decide whether it's analogous to something in the listed, you know, conditions or not, right? [00:11:39] Speaker 01: That's what we're doing. [00:11:40] Speaker 01: Okay. [00:11:41] Speaker 01: And so why don't, I think you were going there, why don't you tell us why [00:11:46] Speaker 01: you think that is not a pure question of law? [00:11:50] Speaker 02: I think that can be easily answered by looking at the board decision that was under review. [00:11:55] Speaker 02: I mean, at 128, the appendix, the board held that after review of the evidence, after a review of the evidence, the facts before it, the board finds the veterans' esophageal symptoms are more closely resembled those contemplated under DC 7346, [00:12:11] Speaker 02: and that a rating excess of 30% is not warranted. [00:12:15] Speaker 02: And the court goes through a great amount of detail, particularly the board rather, goes through a great deal of detail at 133 to 135 of the appendix, where they're looking at the other list conditions. [00:12:26] Speaker 02: And all of those are repeatedly looking at the medical evidence. [00:12:30] Speaker 02: For example, 133, outside of the June 2014 examination note of vomiting, there is no evidence of periodic vomiting, severe pain, and recurrent [00:12:41] Speaker 02: And I will apologize for my pronunciations of any medical terms in advance. [00:12:46] Speaker 02: And recurrent hematosis or melanemia and weight loss. [00:12:51] Speaker 02: Thus, diagnostic code 7305 is not for application. [00:12:56] Speaker 02: Again, at room 34. [00:12:57] Speaker 01: Well, and I mean, you're doing, yeah, I think we have this argument. [00:13:01] Speaker 01: You've done a great job with it. [00:13:02] Speaker 01: No problem there. [00:13:03] Speaker 01: You've explained to us how the board decision itself demonstrates the detailed factional nature of what's being decided. [00:13:11] Speaker 01: But apart from that, don't we have some kind of important case law that governs us here that makes it difficult to conclude that this is, in fact, a factual question? [00:13:22] Speaker 01: I mean, if we did so, how could we distinguish our case law that says choosing what listed condition is a question of fact? [00:13:32] Speaker 02: Well, that's exactly it. [00:13:33] Speaker 02: I mean, the court's decision, DeLis v. McDonald, which calls this a question of fact, [00:13:39] Speaker 02: There are a number of non-precedential decisions, which we might note in our brief, but I will note that Valentine versus McDonald specifically addresses [00:13:48] Speaker 02: whether it's a question of fact in the context of section 4.20. [00:13:53] Speaker 01: So is Delease, do you think, the best case directly on point for the notion that selection of a DC is, if not purely a legal question at least, not purely a factual question, at least a question of application of law to fact? [00:14:06] Speaker 02: I think that's the best presidential decision. [00:14:09] Speaker 02: And again, Valentine versus McDonough is more on point, but it's a non-precedential decision, Your Honor. [00:14:16] Speaker 04: It seems to be appellant's argument that the facts are set by the time it gets to the board, by the time it gets to the appeals court. [00:14:28] Speaker 04: And so now we're dealing with a question of law, because the facts are already set. [00:14:31] Speaker 04: But we're still having to apply the facts that were set below to the law, correct? [00:14:37] Speaker 02: That's correct. [00:14:37] Speaker 02: And Your Honor, I'll note, in their opening brief to the Veterans Court, they had asserted that this was a matter of [00:14:45] Speaker 02: a fact to be reviewed by clear error. [00:14:47] Speaker 02: They subsequently, in their reply brief, said it's a question of law to be reviewed de novo. [00:14:52] Speaker 02: But I think even at the outset, the petitioner here had recognized that this is a question of fact, primarily. [00:14:58] Speaker 04: And it's true, isn't it, that there's not a clear case out there that says that the determination of an analogous DC code is a question of fact? [00:15:10] Speaker 02: No. [00:15:11] Speaker 02: There is no precedential decision on that. [00:15:13] Speaker 02: That is correct. [00:15:15] Speaker 01: OK, anything further? [00:15:18] Speaker 02: That's all from the United States, Your Honor. [00:15:20] Speaker 02: Thank you very much. [00:15:21] Speaker 02: Thank you. [00:15:27] Speaker 03: Just a couple points, Your Honor. [00:15:29] Speaker 03: Number one, yes, there is no precedent on this question. [00:15:32] Speaker 03: And the lease was dealing with a listed condition, tinnitus, and I believe it was, no, I'm sorry, it was the knee. [00:15:41] Speaker 03: And the court essentially ruled that they have to rate it. [00:15:45] Speaker 03: Again, there is no precedent on this specific question, which is primarily why we brought this. [00:15:50] Speaker 03: With respect to Miller, Bufkin was issued after a briefing was done, and Bufkin cited to Miller, which then led me to that case. [00:15:58] Speaker 03: But Bufkin also talked about these kinds of questions between fact and law, and so we think that that is important precedent for the court to understand as well. [00:16:10] Speaker 01: So it does sometimes happen that in the preparation for oral argument, you come across a case or an associate comes across a case or something. [00:16:18] Speaker 01: But it's really much more helpful for the court and fairer to opposing counsel if you file a 28-J letter at that point. [00:16:25] Speaker 01: Whenever it was, I'm not going to put you on the spot, but whenever it was that you came across this case, even if it was yesterday, if you're going to stand up and the first thing out of your mouth is going to be there's this important Supreme Court case we failed to address, it's not [00:16:39] Speaker 01: It's not useful for us, and it's kind of unfair to them. [00:16:41] Speaker 01: So I would ask in the future that you try to give some notice if you come up with something. [00:16:47] Speaker 01: It happens. [00:16:48] Speaker 01: It's going to happen. [00:16:49] Speaker 01: But try to give some notice. [00:16:51] Speaker 03: Absolutely, Your Honor. [00:16:52] Speaker 03: And just on the last point on that specific question, in our briefing, and I'm pointing right now to page nine of our reply brief, although it gets in a little bit more detail. [00:17:01] Speaker 03: It did say in our opening brief, we talked about the context of 4.20 [00:17:06] Speaker 03: the veteran is awarded does not require expertise that is beyond the capacity of veterans court. [00:17:11] Speaker 03: And that's really the basis for why we think this is a legal determination. [00:17:17] Speaker 03: And that's all we have. [00:17:19] Speaker 03: Unless there are no other questions, thank you very much. [00:17:21] Speaker 01: I thank both counsel for their argument. [00:17:22] Speaker 01: This case is taken under submission.