[00:00:00] Speaker 02:
Our first case this morning is Jackie Keene versus the Secretary of Veterans Affairs, 2023-2407.

[00:00:07] Speaker 02:
Mr. Strong.

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

[00:00:14] Speaker 00:
May it please the Court.

[00:00:15] Speaker 00:
I'm Thomas Strong with Veterans Legal Advocacy Group for Jackie Keene.

[00:00:20] Speaker 00:
This case concerns three errors, two by the VA and one by the Veterans Court, that prejudiced Mr. Keene.

[00:00:29] Speaker 00:
The VA failed to notify Mr. Keene that checking direct board review would abandon conclusive evidence of a current disability he'd submitted a month earlier.

[00:00:41] Speaker 00:
Second, the VA failed to clarify his intended docket even though his NOD was ambiguous and direct review conflicted with his submission of evidence.

[00:00:52] Speaker 00:
Third,

[00:00:53] Speaker 00:
Sensing unfairness, the Veterans Court raised the duty to clarify under Edwards spontaneously, but the Veterans Court erred by finding Mr. Keen's intended docket unambiguous, even though the board failed to make a finding about his intent de novo.

[00:01:11] Speaker 00:
Despite these errors,

[00:01:13] Speaker 00:
The secretary says that Mr. Keene waived his right to argue notice and ambiguity, even though two cases that raised the issues, Edwards and Cook, were decided after Mr. Keene briefed his case at the Veterans Court.

[00:01:27] Speaker 02:
Well, he opted for direct review, right, which meant no further evidence.

[00:01:33] Speaker 02:
So he opted for an advantageous procedure, and now he's saying, I don't

[00:01:42] Speaker 02:
like the consequences.

[00:01:44] Speaker 00:
So on the form, he did check the box that said direct review.

[00:01:49] Speaker 00:
But 20.202f, which the secretary is empowered to create under USC 7107, which Congress gives the VA the right to allow him to change lanes, allows him to change lanes if his intent is unclear.

[00:02:06] Speaker 00:
And in cases where

[00:02:08] Speaker 00:
like Edwards, Edwards holds that you can use extraneous evidence to make a finding about intent beyond just what was on the form.

[00:02:17] Speaker 00:
That is evidence of intent that cuts against Mr. King.

[00:02:21] Speaker 02:
But his submission of evidence before... Did he argue that there was an ambiguity in the lower court?

[00:02:28] Speaker 00:
In the lower court, he did not.

[00:02:30] Speaker 02:
Well, isn't that forfeited?

[00:02:32] Speaker 00:
I don't think so, because under foresheet, he's allowed to bring, because Edwards was decided after, Edwards held that he was able to use extraneous evidence, evidence that was submitted earlier, to show intent

[00:02:52] Speaker 00:
And because it was decided after he briefed the case at the Veterans Court, for she allows for an intervening change in law, it allows him to raise those arguments here.

[00:03:04] Speaker 01:
Well, it did appear that in his reply brief to the Veterans Court, he made a version of an Edwards type argument in the sense that he argued that there was a conflict between his submission of evidence

[00:03:20] Speaker 01:
and then subsequently filing a nod form requesting direct review.

[00:03:26] Speaker 01:
So in that way, there's a conflict between some submitted evidence and the nod form, which was like Edwards, right?

[00:03:35] Speaker 01:
Right.

[00:03:35] Speaker 01:
But the distinction here is Edwards did it at the same time.

[00:03:40] Speaker 01:
The evidence was attached to the nod form.

[00:03:44] Speaker 01:
So with one submission, it was,

[00:03:48] Speaker 01:
it was inherently contradictory in seeking direct review while at the very same time submitting the evidence.

[00:03:58] Speaker 01:
Here, the evidence was submitted several months before the Nod form was filed.

[00:04:03] Speaker 01:
Is that right?

[00:04:05] Speaker 00:
Several months before that, yes.

[00:04:06] Speaker 00:
And that raised the confusion.

[00:04:08] Speaker 01:
But the problem there, I think, for your side is that the Nod form alone is just simply asking for direct review.

[00:04:19] Speaker 01:
And if we were to agree with you that his earlier submission of evidence in a separate filing created some kind of duty to clarify on the VA, you're asking for a rule where every time there's a nod form filed seeking direct review, the board would be obligated to go looking around through the

[00:04:43] Speaker 01:
claimant's file to see if he had submitted any evidence previously.

[00:04:48] Speaker 01:
And I don't think that's what 20.202f is going for when it puts the obligation to clarify on the VA.

[00:04:59] Speaker 00:
So two things.

[00:05:01] Speaker 00:
One, whenever the VA raises a preclusionary bar, sua sponte, the Supreme Court has said that the adjudicator needs to be extremely careful when you raise a preclusionary bar.

[00:05:14] Speaker 00:
So I think that that is important.

[00:05:20] Speaker 00:
I don't think, I think that this kind of carries, this kind of has an interplay with our notice argument, where if he has really good notice on the form, there's not going to be a lot of situations where the VA has to do clarification.

[00:05:35] Speaker 00:
An ounce of notice is worth pounds of clarification later.

[00:05:39] Speaker 00:
Had the NOD been clear that it was retroactive when Mr. King signed up for direct review and that description, if the VA had been clear, there's not really a need to clarify because he wouldn't have selected direct review because his actions would have been consistent with his filing this conclusive evidence.

[00:06:01] Speaker 03:
Your argument sounds kind of like hindsight.

[00:06:05] Speaker 03:
You're looking back as to what the events that occurred and given interpretation to them.

[00:06:13] Speaker 03:
But did your client choose a particular ramp and there's no ambiguity as to what happens if you choose that ramp, that option?

[00:06:25] Speaker 00:
So he checked the box.

[00:06:28] Speaker 00:
Most certainly, he did.

[00:06:29] Speaker 00:
But it's not the 20.202.

[00:06:31] Speaker 03:
And then the box gives explicit instruction.

[00:06:34] Speaker 03:
What happens if you check this box?

[00:06:36] Speaker 03:
It's a warning.

[00:06:38] Speaker 00:
Under 20.202f, what it says is that it's not about his selection on the form.

[00:06:45] Speaker 00:
It's about whether his intent is unclear.

[00:06:47] Speaker 00:
That's what the court is looking to.

[00:06:49] Speaker 00:
And because he submitted this extraneous evidence, we're arguing that the court should interpret Edwards to allow the consideration of that.

[00:06:58] Speaker 01:
Was my earlier comment correct, that every time that a veteran files a not form selecting direct review,

[00:07:07] Speaker 01:
Your rule would require the VA to go looking through the file to see if there's any possible earlier submissions that would conflict with the selection of a direct review.

[00:07:19] Speaker 00:
I don't know how the VA carries out its processes.

[00:07:22] Speaker 00:
I don't know if they're.

[00:07:23] Speaker 01:
Well, that's what you're asking or demanding that the board have did here.

[00:07:28] Speaker 01:
Oh, Mr. Keene selected direct review.

[00:07:33] Speaker 01:
Well, I'm not so sure.

[00:07:35] Speaker 01:
just because he selected it, it's possible that there might be something in the file that suggests otherwise.

[00:07:42] Speaker 01:
I need to go look now to see what he has filed, if anything, before the filing of this not.

[00:07:49] Speaker 01:
Oh, now I see that six months prior, he did in fact file some evidence.

[00:07:54] Speaker 01:
So maybe now there's a conflict between

[00:07:56] Speaker 01:
whether or not he really does want direct review.

[00:07:59] Speaker 01:
That seems like the chain of steps that you are insisting that the board go through every time a nod form that selects direct review has been filed.

[00:08:10] Speaker 00:
So I actually don't think that that would be the case because the VA, when he filed that evidence, it immediately responded to that evidence by filing a form, sending him notice.

[00:08:21] Speaker 00:
So it's already doing that.

[00:08:22] Speaker 00:
So it sent him a notice immediately following that evidence.

[00:08:26] Speaker 01:
It sent him a notice telling him that you need to... Right, but there was nothing attached to the nod signaling to the board that

[00:08:34] Speaker 01:
there was some evidence that had previously been filed or submitted.

[00:08:40] Speaker 00:
And that gets to notice, whether the nod with the evidence, whether that provides good notice to him.

[00:08:45] Speaker 00:
But I think that the VA was on notice, and I think that we know that because it responded with a form.

[00:08:51] Speaker 00:
As soon as he filed that evidence, it responded him with a form saying, hey, you need to file your nod in order for us to continue on with this case.

[00:08:59] Speaker 00:
And so then he filed his nod, and that nod was inconsistent with his submission of evidence.

[00:09:04] Speaker 00:
So his intent was unclear.

[00:09:05] Speaker 00:
So under 20.202f, the board should have made a finding about his unclear intent in the first instance.

[00:09:15] Speaker 00:
And then the court could have

[00:09:19] Speaker 00:
weighed the evidence.

[00:09:21] Speaker 00:
It could have found whether that evidence, whether the board did it right.

[00:09:24] Speaker 00:
But instead, the board did not make that finding.

[00:09:29] Speaker 00:
And because it did not make that finding, the board de novo, or excuse me, the Veterans Court, made that finding de novo.

[00:09:36] Speaker 00:
And that exceeded its jurisdiction.

[00:09:38] Speaker 00:
And this court has an unwaverable, independent obligation to assess whether the Veterans Court had jurisdiction in this case.

[00:09:46] Speaker 00:
And our argument is that it did not.

[00:09:51] Speaker 03:
Are you arguing that under 38 CFR, section 20, 202 F, that your client was entitled at unclear notice, a notice of uncertainty?

[00:10:08] Speaker 00:
Exactly.

[00:10:08] Speaker 00:
That is exactly.

[00:10:09] Speaker 03:
We're arguing that under 20.202 F. Do you have any citation to any cases that would say that that's a reversible error?

[00:10:18] Speaker 00:
Well, yeah, I have at least one citation where the board, once this happens, the board, I look through all the cases at the board that cite Edwards.

[00:10:32] Speaker 00:
And so those cases, I mean, there's a lot of them.

[00:10:35] Speaker 00:
And they all show that this was either raised by the board or

[00:10:40] Speaker 00:
This, this intent finding was raised by the board and then consistent with USC 7107 and the authority to allow the veteran to change lanes that Congress gave the VA is that it's allowing veterans to make a change and saying, okay,

[00:10:57] Speaker 00:
You submitted this evidence.

[00:10:59] Speaker 00:
Your intent was unclear.

[00:11:01] Speaker 00:
We're not going to make you wait five years and then go all the way back to the end of the line, which defeats the purpose of the AMA.

[00:11:08] Speaker 00:
It's supposed to be speedy.

[00:11:10] Speaker 00:
But if there's not clear notice, and you have to go all the way to the back of the line, or you have to appeal all the way up to the federal court.

[00:11:16] Speaker 01:
The VA sent Mr. Keen a letter after Mr. Keen submitted the nod, right?

[00:11:24] Speaker 01:
And the letter from the VA

[00:11:26] Speaker 01:
pretty explicitly stated, you select a direct review, you cannot submit evidence to the board.

[00:11:33] Speaker 00:
There was a nod.

[00:11:38] Speaker 01:
And immediately after the nod, the VA sent a letter to Mr. King.

[00:11:44] Speaker 01:
And in that letter, it said to Mr. King, based on your selection, we understand you to have elected to do direct review with the board.

[00:11:54] Speaker 01:
So you cannot submit any evidence to the board.

[00:11:58] Speaker 00:
So that goes to notice.

[00:11:59] Speaker 00:
Yes, he did send that.

[00:12:01] Speaker 00:
And our distinction would be that, OK, that does not tell him that this evidence is going to be excluded retroactively.

[00:12:11] Speaker 00:
So he didn't have notice.

[00:12:12] Speaker 00:
And if you don't know what evidence is going to be considered by the board, you can't mark it.

[00:12:16] Speaker 03:
I thought it warned him exactly that.

[00:12:18] Speaker 03:
I'm sorry?

[00:12:18] Speaker 03:
I thought that notice was exactly a warning

[00:12:21] Speaker 03:
that you've taken an option to where you cannot submit any additional evidence and none will be considered.

[00:12:28] Speaker 00:
Right.

[00:12:29] Speaker 00:
And so the key point in this case is that whether evidence is excluded, whether notice was given that evidence was going to be excluded from the date of the rating decision or is additional evidence from the date of the NOD.

[00:12:46] Speaker 00:
And so that letter that Judge Ken is speaking to

[00:12:50] Speaker 00:
is it is consistent with the idea, no more additional evidence.

[00:12:54] Speaker 00:
But we still don't have a reference point about whether no additional evidence from the date that he filled out the NOD or from the reading.

[00:13:02] Speaker 02:
Most of the amount of time you wanted to save for rebuttal, you can continue or save it.

[00:13:08] Speaker 00:
I'll save it.

[00:13:08] Speaker 00:
Thank you, Your Honor.

[00:13:10] Speaker 02:
Mr. Hoffman.

[00:13:18] Speaker 04:
May it please the court.

[00:13:20] Speaker 04:
First, let's talk about what we were just talking about, which is this evolving argument about the time of the notice.

[00:13:28] Speaker 04:
And I think looking at four documents in the appendix sort of clarifies everything here.

[00:13:33] Speaker 04:
The first one, obviously, is 289.

[00:13:36] Speaker 04:
Appendix 289 is the date of the RO decision that was issued in this case.

[00:13:42] Speaker 04:
That was February 2020.

[00:13:44] Speaker 04:
Attached to that RO decision.

[00:13:49] Speaker 04:
that Appendix 297 are the instructions for the claiming, should he be dissatisfied with the decision that he was provided.

[00:14:00] Speaker 04:
In those instructions, as the court can look at the bottom half of that page, it identifies the various review options, supplemental claim, higher level review appeal to the board, and for very special claims, district courts, which don't apply here.

[00:14:14] Speaker 04:
And under the appeal to the board, under the second paragraph, it explains when you request a hearing with a veterans law judge or the opportunity to submit evidence, that's an option.

[00:14:22] Speaker 04:
You may also choose for the board to review your claim without any additional evidence or hearing, which may result in a faster decision.

[00:14:28] Speaker 04:
And on the next page, it refers to the form that you need to go out and get.

[00:14:32] Speaker 04:
This is the form that is the NOD that was submitted that is at Appendix 102.

[00:14:38] Speaker 04:
And at Appendix 102, we see

[00:14:40] Speaker 04:
at Box 11, there are three choices, just as described at the time he received the RO decision a year earlier.

[00:14:50] Speaker 04:
Direct review, evidence with a hearing, and evidence

[00:14:56] Speaker 04:
without a hearing and in evidence with a hearing.

[00:14:59] Speaker 04:
So the question in this case for the board when it got this NOD was what does he want?

[00:15:05] Speaker 04:
Which lane does he want?

[00:15:06] Speaker 04:
And the board actually follows up, as was just noted, I think by Judge Chen, on Appendix 99 with the confirmation of receipt of the NOD in which the board identifies that he chose the direct review docket.

[00:15:20] Speaker 04:
So there can be no question on this record that Mr. Keen was apprised at the time of his RO decision

[00:15:27] Speaker 04:
of the various review options that he had, including direct review evidence with a hearing and just evidence.

[00:15:34] Speaker 03:
So with respect to the option that he did choose, with respect to the option that he chose, was he entitled to a notice warning him on the evidence of what may be considered, what may not be?

[00:15:50] Speaker 04:
Well, I think that 99, appendix 99, probably qualifies for that.

[00:15:54] Speaker 04:
I'm not sure there's a requirement.

[00:15:56] Speaker 04:
The requirement, as the Veterans Court found when confronted with the argument that was presented before it, which was the board erred by not looking at certain evidence, was the duty on the board with respect to this NOD.

[00:16:09] Speaker 04:
And that's where this 20.202f provision comes in.

[00:16:13] Speaker 04:
Because there is a duty on the board to the extent the board, not the veteran, but the board is confused by the submission

[00:16:21] Speaker 04:
the board should seek clarification.

[00:16:23] Speaker 04:
That's the duty that's imposed on the board.

[00:16:24] Speaker 03:
So what is it about this case that takes him out of that, the possibility of receiving a notice?

[00:16:32] Speaker 04:
What takes him out of that, what doesn't, I would frame it slightly different.

[00:16:36] Speaker 04:
It doesn't trigger that.

[00:16:38] Speaker 03:
Excuse me.

[00:16:39] Speaker 03:
This is a requirement in the statute, right?

[00:16:42] Speaker 04:
I think it's, no, I think this is, it evolves from the statute.

[00:16:46] Speaker 03:
It's a CFR that has a providence in these statutes.

[00:16:50] Speaker 04:
The statute talks about the various review lanes and divides them up into direct review, no evidence.

[00:16:58] Speaker 04:
It's like if you think about it, it's super market.

[00:17:02] Speaker 03:
Does the statute speak to a veteran receiving a notice?

[00:17:07] Speaker 04:
No.

[00:17:08] Speaker 04:
I don't think the statute does it.

[00:17:09] Speaker 03:
That the evidence may be in jeopardy based on the ramp or the option they choose.

[00:17:14] Speaker 04:
I don't think the statute goes as far as addressing

[00:17:18] Speaker 04:
like 20.202f, I think the VA creates that regulation as a way to make sure that the right lane is picked.

[00:17:26] Speaker 03:
OK.

[00:17:27] Speaker 03:
Does a regulation, is a regulation based on the statute?

[00:17:30] Speaker 04:
Well, I think it flows from the idea that you now have this decision to make about which lane you want.

[00:17:35] Speaker 04:
So that's the basis of it.

[00:17:38] Speaker 04:
But Congress, I don't think, dealt with it.

[00:17:40] Speaker 03:
Setting the statute aside, does the regulation require that notice?

[00:17:44] Speaker 04:
Only if it's triggered.

[00:17:45] Speaker 04:
Only what?

[00:17:46] Speaker 04:
If it's triggered by the plain language of the regulation.

[00:17:49] Speaker 04:
The plain language of the regulation requires a finding by the board of confusion.

[00:17:54] Speaker 04:
And the question in this case is, was the board confused?

[00:17:58] Speaker 04:
Now, the presumption is that the board is not confused because it

[00:18:02] Speaker 04:
handled the case as a direct review lane case.

[00:18:05] Speaker 04:
So that actually goes to the question about fact finding in the first instance.

[00:18:08] Speaker 04:
There's no fact finding by the veterans court in the first instance here.

[00:18:11] Speaker 04:
The board's already made a fact finding that this NOD is not vague because it found that there was no need to trigger 20.202f.

[00:18:18] Speaker 04:
Now, counsel argues there should be some sort of affirmative declaration in the board decision to that effect, but I don't think there's any requirement by statute or regulation for the board to

[00:18:29] Speaker 04:
metaphorically check a box about whether the form was unclear.

[00:18:36] Speaker 04:
But the regulation does impose a duty on the board to the extent the board finds it to be unclear to seek clarification.

[00:18:42] Speaker 04:
And that would be an issue that someone could take.

[00:18:44] Speaker 01:
It's a conditional obligation, right?

[00:18:46] Speaker 01:
The regulation begins with if.

[00:18:48] Speaker 01:
If.

[00:18:49] Speaker 01:
If the board cannot identify which option the claimant has selected for board review, then the board will contact the claimant and ask that

[00:18:59] Speaker 01:
claimant to clarify.

[00:19:01] Speaker 04:
And the presumption would be, if the board reviews the NOD, the case as a direct review case, which was identified on the NOD, the board wasn't confused.

[00:19:12] Speaker 04:
Now that's an issue you could take to the Veterans Court, as they did in Edwards.

[00:19:17] Speaker 01:
Right.

[00:19:17] Speaker 01:
But Mr. Strong says there was confusion here, because here Mr. Keene did submit evidence before filing the nod, and so therefore

[00:19:29] Speaker 01:
the VA, the board, had on its hands two separate filings, one with evidence, one saying, I don't want to consider evidence.

[00:19:38] Speaker 01:
So therein lies the confusion.

[00:19:41] Speaker 04:
Yes.

[00:19:41] Speaker 04:
But here, the determination about whether the NOD identifies one lane or the other is based on the NOD.

[00:19:50] Speaker 04:
And this NOD only selects the direct review option.

[00:19:54] Speaker 04:
The vector score notes a decision in Edwards in which there was confusion.

[00:19:58] Speaker 04:
where the person submitted direct review and then also submitted evidence that, on its face, would suggest perhaps some confusion.

[00:20:07] Speaker 01:
Edwards is a veteran's court.

[00:20:10] Speaker 01:
Right.

[00:20:12] Speaker 01:
correctly decided?

[00:20:13] Speaker 04:
If we didn't appeal, Edwards, I have no reason to doubt Edwards as being an error.

[00:20:19] Speaker 04:
It was a finding that, based on the four corners of that NOD, there was some confusion.

[00:20:23] Speaker 04:
And it was an example of where the board probably should have asked for clarification.

[00:20:28] Speaker 04:
Here, as the Veterans Court found, there is no confusion on the four corners of this NOD.

[00:20:34] Speaker 04:
And so the Veterans Court, in this case, did not order the board to seek clarification.

[00:20:40] Speaker 02:
So we're not dealing with Edwards here.

[00:20:42] Speaker 04:
Yes, no.

[00:20:43] Speaker 04:
Edwards has a different fact pattern, as we know.

[00:20:45] Speaker 04:
So that, in the Veterans Court's mind, triggered the obligation under the regulation.

[00:20:52] Speaker 04:
Here, there was no obligation.

[00:20:54] Speaker 04:
And to your point, Judge Chen, about the question was raised earlier, I think, when you articulated the various steps one would go through upon receipt of an NOD to determine whether there was evidence added to the record

[00:21:11] Speaker 04:
prior to the NOD, or within the 90-day period after, which is what Congress required in the AMA.

[00:21:18] Speaker 04:
And when I heard that question and all those steps, what was being described was the duty to assist, which, as the Court knows, was also adjusted by the AMA in 5103, capital A, subsection E, in which it does not apply to the board.

[00:21:38] Speaker 04:
That's where we are, is even to the extent someone identifies something, and we'll talk about this later, obviously.

[00:21:47] Speaker 04:
to the extent someone identifies something, in order to resolve that, the board would have to go look for it.

[00:21:53] Speaker 04:
That is quintessential duty to assist.

[00:21:56] Speaker 01:
Mr. King makes his second argument to us that the nod form itself lacks clarity.

[00:22:04] Speaker 04:
I don't recall that being made below.

[00:22:07] Speaker 04:
But again, that's why I started with the process here.

[00:22:10] Speaker 04:
Because the presumption that undergirds this question is,

[00:22:14] Speaker 04:
Could have added more evidence and because I filed an NOD a year after I got my RO decision And I did submit some evidence.

[00:22:21] Speaker 04:
I wasn't aware that maybe that didn't count Well that was told to him the day he got the RO decision.

[00:22:28] Speaker 04:
That's what we talked about with appendix 297.

[00:22:30] Speaker 01:
The VA explains to him on that very day, so there is no temporal gap here Well, assume for the moment that I agree with you that this particular M

[00:22:42] Speaker 01:
ambiguity argument was not presented below.

[00:22:48] Speaker 01:
Is the VA nevertheless considering revising its non-form form 101-82 to improve the clarity of it?

[00:22:59] Speaker 04:
I don't, I can't answer that question directly although I was, I understand that this is an old 2019 version and there are, there's a now a 2024 version which I unfortunately don't have with me so we may have already done that.

[00:23:11] Speaker 04:
But I would say in a more general way, though, the question that is raised is the one that was addressed by Congress in 7113, which defines what the record is before the board.

[00:23:26] Speaker 01:
My point is I think agencies know there's always room for improvement.

[00:23:35] Speaker 04:
Right.

[00:23:35] Speaker 04:
So are there any other questions?

[00:23:38] Speaker 02:
Thank you, counsel.

[00:23:39] Speaker 02:
We will see you later.

[00:23:43] Speaker 02:
Mr. Strong, you have some rebuttal time, about two minutes.

[00:23:47] Speaker 00:
Thank you, your honor.

[00:23:48] Speaker 00:
So just to one point about the notices.

[00:23:53] Speaker 00:
So Judge Jaquith, in his concurrence in Cook at 192, goes through the forms that are sent out when veterans get a decision and with the notices that are related to the NODs.

[00:24:08] Speaker 00:
about the NOD.

[00:24:09] Speaker 00:
He says, the form said nothing to warn the veteran that the evidence had already submitted would not be considered.

[00:24:17] Speaker 00:
The form's omissions suggest to veterans that evidence they previously submitted will be considered.

[00:24:25] Speaker 00:
And so, and he goes through not just the NOD, but he goes through a series of forms that might benefit the court to look at when it's considering this case.

[00:24:34] Speaker 00:
Another thing

[00:24:35] Speaker 00:
for the court is the statute that is implemented by 20.202f is section 7107 of Title 38.

[00:24:46] Speaker 00:
And it says, policy on changing dockets.

[00:24:49] Speaker 00:
The secretary shall develop and implement a policy allowing an appellant to move the appellant's case from one docket to another.

[00:24:57] Speaker 00:
And what the Congress is anticipating here is situations like this, where you have a veteran who's unrepresented.

[00:25:04] Speaker 00:
At the time, he was battling cancer.

[00:25:06] Speaker 00:
And he's confused.

[00:25:09] Speaker 00:
And so Congress wanted the Secretary to, in order to keep the system friendly and non-adversarial, user-friendly, it empowered the Secretary to create this regulation.

[00:25:27] Speaker 00:
Those are, I think, our key responses.

[00:25:32] Speaker 00:
And just one final point is that Cook was also, that the Veterans Court relied on, that created this period post-rating and pre-NOD, was also decided after he briefed his case at the Veterans Court.

[00:25:48] Speaker 00:
So Edwards and Cook were both decided after, so he didn't have the chance to have party presentation.

[00:25:54] Speaker 00:
With that, my time is out.

[00:25:56] Speaker 00:
Thank you so much.

[00:25:57] Speaker 02:
Thank you counsel.

[00:26:00] Speaker 02:
Thank you both counsel.

[00:26:01] Speaker 02:
The case is submitted.