[00:00:00] Speaker 02:
Our last case this morning is Rodney Wright versus the Secretary of Veterans Affairs, 2024-1105.

[00:00:08] Speaker 02:
Mr. Leroy.

[00:00:10] Speaker 02:
May it please the court.

[00:00:14] Speaker 00:
This is a Veterans Benefits case.

[00:00:16] Speaker 00:
In claimant appellant, Mr. Rodney Wright,

[00:00:19] Speaker 00:
is entitled to receive additional compensation for his daughter BW under 38 USC 1115-1F during the period that she received Dependence Education Assistance or DEA benefits under Chapter 35 because she was a child between the ages of 18 and 23 who was pursuing a course of instruction at an approved education institution.

[00:00:42] Speaker 00:
And while 38 USC 3562 sub 2 does affect the amount of additional compensation that Mr. Wright may obtain for BW, it does not entirely bar that additional compensation as the Veterans Court incorrectly held.

[00:01:01] Speaker 03:
What is your best support for your argument that section 3562-2's bar lifts once the child exhausts their DEA benefits?

[00:01:10] Speaker 00:
So the best support for the argument is the plain statutory text in that it is silent on when the bar lifts.

[00:01:18] Speaker 00:
So if you look at the text, it says, the bar begins when the child commences the educational program.

[00:01:25] Speaker 00:
And that doesn't say anything about when the bar lifts.

[00:01:30] Speaker 01:
But I thought a different argument than the first one you were making.

[00:01:35] Speaker 00:
Yes, I'm sorry.

[00:01:35] Speaker 00:
So I believe Judge Cunningham was asking the question of when does the bar lift?

[00:01:39] Speaker 00:
So we have essentially three issues here.

[00:01:43] Speaker 00:
The first two issues are related on what does the bar mean?

[00:01:46] Speaker 00:
What benefits are barred?

[00:01:48] Speaker 00:
And then there's a third issue on

[00:01:51] Speaker 00:
no matter what it means, when does it lift?

[00:01:54] Speaker 00:
And so that's the question I was answering, is I think if you look at the plain statutory text, it doesn't say when it lifts.

[00:01:59] Speaker 00:
It just says the bar begins when the turn.

[00:02:02] Speaker 02:
Yes, but if the bar were to lift, it would provide more benefit.

[00:02:08] Speaker 02:
And doesn't that have to be expressed in the statute to give an added benefit?

[00:02:14] Speaker 00:
So I think, so when the bar lifts, the veteran would then once again receive benefits under the additional compensation under 1115.

[00:02:23] Speaker 00:
I think it is expressed.

[00:02:24] Speaker 02:
It's expressed in 1115 sub 1 sub f. Well, it doesn't say benefit will be restored.

[00:02:31] Speaker 02:
Certainly, it doesn't say... It just says, shall be a bar.

[00:02:34] Speaker 00:
So I think the best way to conceive of this is that if you look at the Supreme Court's opinion in Rudda Silver's and McDonough's recent opinion from last year, in which the Court is looking at the interaction between two benefits programs, and the Court isn't looking for express language to say, you know, let's lift.

[00:02:50] Speaker 00:
The Court is saying, we look at the title, it says about a non-duplication provision, and that's what we have here.

[00:02:55] Speaker 01:
Unlike Rudisdell, we have here a situation in which Congress seems to use other language to say that there shan't be concurrent receipt of benefits.

[00:03:10] Speaker 01:
And they didn't use that language here.

[00:03:12] Speaker 01:
They used language about commencement and without saying that the bar is lifted at any point in time.

[00:03:19] Speaker 00:
So I think what's helpful here is we don't have express language.

[00:03:23] Speaker 01:
But isn't that right?

[00:03:24] Speaker 01:
I mean, there is language in these statutes that talks about you can't have concurrent receipt.

[00:03:32] Speaker 01:
And they didn't use that language here.

[00:03:35] Speaker 01:
Instead, they used the word concurrent.

[00:03:38] Speaker 01:
And historically, different sections of the statute have provided no

[00:03:43] Speaker 01:
benefits after commencement and in another subsection have said no concurrent benefits.

[00:03:51] Speaker 01:
The first one referring to one chapter and the second one referring to other chapters.

[00:03:56] Speaker 00:
So I have two responses.

[00:03:57] Speaker 01:
First, the language here is... My summary is correct, isn't it?

[00:04:00] Speaker 00:
I think your summary is correct, but I think the context here doesn't mean that we lose on this issue.

[00:04:05] Speaker 00:
And I think there's two responses.

[00:04:07] Speaker 00:
The first is it says, the commencement of the program is when the bar begins.

[00:04:12] Speaker 00:
It doesn't have anything in the text saying when the bar would lift.

[00:04:15] Speaker 00:
It's just silent on that.

[00:04:16] Speaker 00:
It doesn't say it's a permanent bar.

[00:04:17] Speaker 00:
It doesn't say forever and for all benefits.

[00:04:20] Speaker 00:
And then you have the statutory title, which in run-of-sill it also says is a permissible source of meaning.

[00:04:25] Speaker 00:
It says it's called the non-duplication of benefits.

[00:04:28] Speaker 00:
And so here, when you have a dependent who has received all the chapter 35 benefits she's entitled to receive, and it's done,

[00:04:36] Speaker 00:
but she's still in school there is no non-duplication because she's not receiving chapter 35 benefits the veteran, the veteran parent could once again support the child through the additional compensation benefits under 1115 sub 1 sub f so I think if you look at the fact there's no express language saying it's a permanent bar no express language saying it'll never lift and the statutory title

[00:05:03] Speaker 00:
I think that gets you to a very reasonable interpretation that once the program is done, the bar will lift.

[00:05:09] Speaker 03:
Can you point to anything in the legislative history that directly supports your reading of the statute?

[00:05:15] Speaker 00:
I don't have anything in the legislative history that directly supports it, although I don't think that

[00:05:19] Speaker 00:
the Veterans Court's recitation of the legislative history was particularly helpful either way to be candid.

[00:05:23] Speaker 00:
I think that if you look at the plain statutory text, you look at the title, you have to, I think, interpret it this way.

[00:05:31] Speaker 00:
In this statutory silence, you have the word commencement, you have no express provision saying it doesn't lift,

[00:05:36] Speaker 00:
You have the title saying non-duplication.

[00:05:38] Speaker 00:
And then another textual indication is they define in, for purposes of both bars, what's triggering this is the person, is the child commencing the program.

[00:05:51] Speaker 00:
And it defines this person as an eligible person over the age of 18 by reason of pursuing a course in an educational institution.

[00:06:00] Speaker 00:
And so they're defining this trigger as, oh, this is a person who's pursuing this education.

[00:06:04] Speaker 00:
They've commenced it.

[00:06:05] Speaker 00:
I think by defining it that way when they say, you are a person pursuing this program, I think that is a textual indication, not expressed.

[00:06:13] Speaker 00:
It certainly doesn't

[00:06:14] Speaker 00:
resolve it conclusively.

[00:06:16] Speaker 00:
But I think it's another permissible indication saying it's when you are pursuing the program.

[00:06:20] Speaker 00:
And so when you don't have these benefits anymore, when you're not pursuing the program anymore, the bar should lift.

[00:06:25] Speaker 00:
And I think this is all as a background point.

[00:06:27] Speaker 00:
We have the pro-veteran canon.

[00:06:29] Speaker 00:
It's the Supreme Court in Ruddicell affirmed that it exists.

[00:06:32] Speaker 00:
And in Ruddicell, they said if the statutes were not ambiguous, the pro-veteran canon would come into play.

[00:06:40] Speaker 00:
You know, there's probably statutory ambiguity if you don't think that these these kind of implicit references and the using the title.

[00:06:48] Speaker 00:
If you think at least it's ambiguous, then it should go our way under the pro-veteran canon.

[00:06:52] Speaker 00:
I think my friends at the DOJ in terms of

[00:06:56] Speaker 00:
the pro-veteran canon point, you know, I think it's telling that they cite from Redisil the concurring and the dissenting opinion casting shade on the pro-veteran canon, not the majority opinion expressly recognizing that the canon still exists and can come into play when you have statutory ambiguity.

[00:07:11] Speaker 00:
So that was the bar lifting issue.

[00:07:15] Speaker 00:
There's the other issue in the case before you get to that of what does

[00:07:20] Speaker 00:
what benefits are barred by 3562.

[00:07:24] Speaker 00:
And so our position, excuse me, is that the subsection two bar of 3562 under our primary interpretation only bars, in the statutory language, increased rates or additional amounts of compensation.

[00:07:42] Speaker 00:
And you can understand what that term means when you compare it to the statutory language in the exact same statute, the subsection one bar, which is a different bar.

[00:07:55] Speaker 00:
That one, the subsection one bar, prohibits subsequent payments of compensation.

[00:08:00] Speaker 00:
So you have a prohibition on subsequent payments of compensation on the one hand, on the bar that's not directly at issue.

[00:08:06] Speaker 00:
And then you have a bar in section two on increased rates or additional amounts of compensation.

[00:08:13] Speaker 00:
And so our position is that the bar that applies here prohibits the veteran from receiving an increase in the rate of what he would be getting, an increase in the amount of what he's already getting.

[00:08:25] Speaker 00:
With the subsection two bar, Congress freezes in time the amount of benefits the veteran is getting under 1115 once the child begins receiving the chapter 35 benefits.

[00:08:38] Speaker 00:
And I think it's a very sensible statutory framework, because Congress is choosing a middle ground between two extremes.

[00:08:47] Speaker 00:
Congress could have come up with a regime that says, once you receive chapter 35,

[00:08:52] Speaker 00:
Once the child receives Chapter 35 benefits, the veteran doesn't get anything further for the child.

[00:08:58] Speaker 00:
That's a pretty extreme position.

[00:09:00] Speaker 00:
They could also have another extreme position just saying, we're not going to adjust this at all.

[00:09:04] Speaker 00:
We're just going to be blind to the fact that the child is now getting a substantial benefit under Chapter 35.

[00:09:09] Speaker 00:
That might be seen as overly generous, as too spendy.

[00:09:12] Speaker 00:
They chose a middle ground position that says, we're just going to freeze you in time.

[00:09:17] Speaker 00:
The benefits that you got before the child entered the educational institution and received Chapter 35, that's what you get.

[00:09:23] Speaker 00:
You don't get any increases above that while the child is receiving those benefits.

[00:09:29] Speaker 00:
And again, I think the clearest indication of that is that in the two bars of Section 3562, they use different language to describe what is barred.

[00:09:41] Speaker 00:
You have to read that text together.

[00:09:43] Speaker 00:
Subsection 1 is barring subsequent payments of compensation.

[00:09:47] Speaker 00:
If that were the text that applied to Mr. Wright in this case, we would be losing, we would lose.

[00:09:53] Speaker 00:
Subsequent payment as a compensation seems pretty clear to me to mean any amount from the program, but that's not what they used.

[00:09:59] Speaker 00:
In subsection two, the bar that applies to Mr. Wright, they use the term increased rates or additional amounts of compensation reflecting

[00:10:09] Speaker 00:
you get what you had before, we don't add to that.

[00:10:12] Speaker 00:
For example, a cost of living increase which Congress passes year over year in the VA must calculate and apply for this program under 1115.

[00:10:21] Speaker 00:
And now my friends at DOJ, they ask the court essentially just to ignore subsection one.

[00:10:27] Speaker 00:
They say look only at the plain text of subsection two and specifically they even narrow in on

[00:10:34] Speaker 00:
the prohibition on receiving additional amounts of compensation.

[00:10:38] Speaker 00:
And they say that plaintiff's day resolves the case in their favor.

[00:10:41] Speaker 00:
But that's not how statutory interpretation works.

[00:10:44] Speaker 00:
One, the additional amounts of compensation language there is paired with the prohibition on increased rates.

[00:10:51] Speaker 00:
So you have increased rates and additional amounts of compensation.

[00:10:55] Speaker 00:
That's what's barred.

[00:10:56] Speaker 00:
That's indicating an increase from a baseline.

[00:10:59] Speaker 00:
You also have to pair it, again, with what subsection one says.

[00:11:03] Speaker 00:
My friends at DOJ wants the court not to look at subsection one, but you have to interpret the entire statute as a whole in the same section.

[00:11:10] Speaker 00:
And again, subsection one says a prohibition on subsequent payment of compensation.

[00:11:16] Speaker 00:
So that's our primary interpretation.

[00:11:19] Speaker 00:
I addressed the primary interpretation.

[00:11:20] Speaker 00:
I've addressed the bar lifting.

[00:11:21] Speaker 00:
I wanted to make one final point in the opening and a reserve rebuttal.

[00:11:26] Speaker 00:
And that's, again, a point on, does the bar lift?

[00:11:29] Speaker 00:
And so I have a hypothetical that will explain why it must be the case that the bar lifts.

[00:11:36] Speaker 00:
So in the definition of child that applies to these programs, and this is at

[00:11:43] Speaker 00:
page one of our statutory addendum.

[00:11:49] Speaker 00:
Actually, I'm sorry.

[00:11:50] Speaker 00:
So we excerpted it.

[00:11:52] Speaker 00:
So another portion of the definition of child.

[00:11:56] Speaker 00:
It includes a child who is incapable of providing for themselves if that incapacity arises before they turn the age of 18.

[00:12:06] Speaker 00:
So you can conceive of a situation where you have a child who meets that definition, who reaches the age of 18, but who wants to try to go learn a vocation at a trade school that would be covered by chapter 35.

[00:12:20] Speaker 00:
So say the child does that, receives a month of chapter 35 education, and then learns, I can't do it.

[00:12:26] Speaker 00:
I can't do it.

[00:12:27] Speaker 00:
I'm not able to complete this program.

[00:12:29] Speaker 00:
I'm not capable of doing this for a physical or mental incapacity for whatever reason.

[00:12:34] Speaker 00:
Under the DOJ's view, that would forever cease the parent from obtaining additional compensation for that child, because they are a child who is qualified for Chapter 35.

[00:12:46] Speaker 00:
They've commenced a program.

[00:12:47] Speaker 00:
They've received Chapter 35 benefits.

[00:12:50] Speaker 00:
And that's it.

[00:12:51] Speaker 00:
So I don't think Congress would have intended that cruel result, certainly not in a veteran's case.

[00:12:56] Speaker 00:
And if they did, we would have expected far more expressed language.

[00:13:00] Speaker 03:
Aren't you leaving out the possibility of whether or not the benefits were exhausted by the child in your hypothetical?

[00:13:07] Speaker 00:
I don't think I'm leaving out the possibility that they're exhausted because under the VA's view, the commencement of the program is what triggers the bar.

[00:13:17] Speaker 00:
So it's like once they commence, they say they can't, you, the parent, can't get additional compensation anymore.

[00:13:24] Speaker 00:
And we're saying once it's ended, once you're done, once you're not pursuing the educational program anymore,

[00:13:30] Speaker 00:
Pretend Chapter 35 doesn't get involved anymore.

[00:13:34] Speaker 00:
You're back to just Section 1115.

[00:13:36] Speaker 00:
And with that, I would like to reserve for rebuttal.

[00:13:40] Speaker 02:
We'll give you two minutes for rebuttal.

[00:13:41] Speaker 02:
Thank you.

[00:13:43] Speaker 02:
Ms.

[00:13:44] Speaker 02:
Grob.

[00:13:55] Speaker 04:
May it please the Court, on behalf of the Secretary of Veterans Affairs, Douglas Collins,

[00:14:00] Speaker 04:
We submit that the Veterans Court did not err in its interpretation of either sections 3562 or 1115.

[00:14:04] Speaker 04:
Mr. Wright, claimant appellant here, is not entitled to additional compensation for dependency for his now adult child who is between the ages of 18 and 23 and elected Chapter 35 benefits.

[00:14:20] Speaker 04:
We get there through the plain language of the statutes.

[00:14:23] Speaker 04:
VA is authorized to pay two types of benefits.

[00:14:27] Speaker 04:
for adult children of veterans pursuing higher education.

[00:14:30] Speaker 04:
The first is under 1115.1f.

[00:14:33] Speaker 04:
That encompasses a broader group of eligible adult children than chapter 35.

[00:14:40] Speaker 04:
That's a veteran under 1115.1f would receive an additional amount for if they have a disability of 30% or higher for an adult child pursuing higher education.

[00:14:55] Speaker 04:
If that adult child

[00:14:56] Speaker 04:
chooses then to elect Chapter 35 benefits and is part of a narrower group of adult children, those who are not, who are the child of either a veteran who is deceased or a veteran who is totally disabled.

[00:15:12] Speaker 04:
Once that election is made under Chapter 35, there's no duplication of benefits pursuant to Chapter 35, Section 3562.

[00:15:23] Speaker 01:
Could you help me with the statute 3562?

[00:15:27] Speaker 01:
Is the government's view that subsection one and two both apply here or not?

[00:15:42] Speaker 04:
No.

[00:15:43] Speaker 04:
Subsection one is addressed to the adult child of a veteran who has died.

[00:15:52] Speaker 04:
BW, in this case, her veteran father is still alive.

[00:15:57] Speaker 04:
So it would not apply to the adult child here.

[00:16:00] Speaker 04:
We fall under subsection two, which applies to instances where the veteran is still alive, totally disabled and still alive, or it would also encompass a surviving spouse who's receiving other.

[00:16:18] Speaker 04:
other benefits.

[00:16:21] Speaker 01:
Subsection two applies to total disability and subsection one only applies to death.

[00:16:28] Speaker 04:
Yes, so in subsection one, to the subsequent payments of compensation, dependency, indemnity compensation, or pension based on the death of a parent to an eligible person over 18.

[00:16:41] Speaker 01:
It's sort of confusing as to why would you limit subsection one to the death

[00:16:48] Speaker 01:
and not include permanent disability?

[00:16:54] Speaker 04:
We're talking about what pool of money is barred, right?

[00:16:58] Speaker 04:
So when the adult child elects Chapter 35 benefits, educational benefits, if their veteran parent is deceased, they would theoretically be otherwise entitled to receive other compensation by virtue of the death of their parent, the pension and other things

[00:17:15] Speaker 04:
that spin out.

[00:17:16] Speaker 01:
It goes beyond the payments you would get in terms of distance.

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

[00:17:19] Speaker 04:
And so if the veteran had passed and the adult child elected Chapter 35 benefits, they would be electing those Chapter 35 benefits and forgoing what other compensation they might have received just by virtue of being the surviving child of a veteran who passed.

[00:17:40] Speaker 04:
Whereas in subsection two, when the veteran is still alive,

[00:17:45] Speaker 04:
but totally disabled, the bar would be to the veteran receiving benefits for the child.

[00:17:56] Speaker 04:
So now the child is an adult.

[00:17:58] Speaker 04:
The child has elective chapter 35 benefits.

[00:18:01] Speaker 04:
The veteran now can no longer receive increased rates or additional amounts of compensation because of such person, the child.

[00:18:15] Speaker ?:
OK.

[00:18:19] Speaker 04:
We get there, I know my friend across the aisle does not, submits that Chapter 1115 is not applicable.

[00:18:27] Speaker 04:
But the purpose of Section 3562 is to bar the duplication of benefits.

[00:18:33] Speaker 04:
Both the benefits in Chapter 35 and the benefits in 1115 are designed to assist an adult child of a veteran in the pursuit of higher education.

[00:18:45] Speaker 04:
Mr. Wright essentially concedes that point in arguing that the bar should only apply to the cola on 11 and 15, 1f.

[00:18:55] Speaker 04:
If the cola that would increase the benefit under 11, 15, 1f concerns a duplication of benefits, the cola, then the principle on which the cola is adjusting would also encompass

[00:19:13] Speaker 04:
educational benefits.

[00:19:14] Speaker 04:
There's no other statutory section in the scheme that would be triggered by the duplication of benefits clause other than 1115.

[00:19:23] Speaker 01:
But his stronger argument seems to be that this is not borrowing the resumption of benefits once the educational program payments come to an end.

[00:19:37] Speaker 04:
So that argument

[00:19:38] Speaker 04:
Mr. Wright hinges on the silence of any resumption of benefits in Section 3562.

[00:19:43] Speaker 04:
Silence, as Judge Laurie questioned my friend across the aisle, does not authorize the payment of benefits.

[00:19:55] Speaker 04:
It's clear from the statutory scheme that when Congress intended benefits to resume,

[00:20:00] Speaker 04:
or for there to be conditions upon which benefits could resume, they so provided.

[00:20:06] Speaker 04:
Our brief starting at page 33 outlines numerous other sections within Title 38, where Congress expressly provided for the resumption of benefits

[00:20:23] Speaker 04:
once two competing benefits were no longer concurrent.

[00:20:28] Speaker 04:
And they would typically provide for benefits a bar for, quote, a period.

[00:20:33] Speaker 04:
Or they, if not using a phrase like for a period or for a duration, they would provide conditions and process upon which the bar would lift and other benefits could resume.

[00:20:46] Speaker 04:
None of that exists in Chapter 35 or anywhere else in Title 38.

[00:20:52] Speaker 03:
Does the legislative history support your argument that the 3562 bar is permanent?

[00:20:59] Speaker 04:
Does it lift?

[00:21:01] Speaker 04:
I would agree with my friend across the aisle that the legislative history is not dispositive.

[00:21:06] Speaker 04:
But the Veterans Court does go into it in some depth.

[00:21:10] Speaker 04:
And there was an earlier version, one of the earliest versions, of this Chapter 35 benefits.

[00:21:16] Speaker 04:
that did provide for a period, benefit a bar for a period.

[00:21:20] Speaker 04:
And there was concern about the administrative burden that that would impose upon the VA.

[00:21:27] Speaker 04:
If the bar can be imposed and lift and imposed and lift, that would create more work than was the benefit of the statute.

[00:21:37] Speaker 04:
Now, there's not corresponding discussion in the legislative history that we're going to

[00:21:42] Speaker 04:
adopt something expressly to address that concern, but that concern was raised in Congress when the bar was adopted.

[00:21:52] Speaker 01:
I thought that the Veterans Court was pointing to earlier versions of legislation which included two provisions.

[00:22:02] Speaker 01:
One, the commencement provision and the no concurrent receipt of benefits provision suggesting that

[00:22:16] Speaker 01:
So in that sense, does not the legislative history support your position?

[00:22:22] Speaker 04:
I think it supports the position in that this statute has been amended several times over several decades and been in existence since the 50s.

[00:22:32] Speaker 04:
And that silence has never been interpreted to allow for either a concurrent payment of benefits or to the resumption of benefits upon the

[00:22:45] Speaker 04:
the end of chapter 35 or the exhaustion chapter 35 you can also look at this in the context of the size of these benefits right chapter 35 benefits it's amended on annual basis but right now it's over $1,200 a month that is a significant benefit for the recipient right so it would not lead to say an absurd result

[00:23:07] Speaker 04:
that Congress would have provided that upon election.

[00:23:11] Speaker 01:
But your theory is you're giving up a smaller benefit under B and C to get a larger benefit under F. Right.

[00:23:17] Speaker 04:
And there are consequences to that.

[00:23:19] Speaker 04:
You have to give something up to get the larger benefit.

[00:23:23] Speaker 04:
So it doesn't lead to an absurd result by any means.

[00:23:27] Speaker 04:
Now, Congress certainly could have provided for a resumption of benefits.

[00:23:32] Speaker 04:
They simply elected not to do that.

[00:23:34] Speaker 04:
That's a matter of policy for the court.

[00:23:37] Speaker 04:
Turning to the substance of Mr. Wright's arguments about what is or isn't barred, as I mentioned, Section 1115.1f is, within Title 38, the penultimate section that would be a duplication of benefits, right?

[00:23:57] Speaker 04:
1115.1f provides for assistance for an adult child pursuing

[00:24:04] Speaker 04:
Higher education as does chapter 35 so if we're going to talk about a duplication of benefits it has to apply to 1115 1f Mr.. Wright has not pointed to any other part of title 38 that it could Apply to now he suggested that it would only apply to the cola, but as I mentioned earlier I

[00:24:23] Speaker 04:
If there's a duplication of benefits for the COLA that would apply to 1115, there's no principled reason why there wouldn't be a duplication of benefits with the principle itself.

[00:24:38] Speaker 04:
We're adding a gloss on the statute that's simply not there.

[00:24:41] Speaker 04:
And you see that in Mr. Wright's brief, both in his opening brief and his reply brief, because they repeatedly rewrite the statute to suggest it says additional amounts of additional compensation.

[00:24:52] Speaker 04:
That statutory phrase does not appear anywhere in the relevant sections, right?

[00:24:58] Speaker 04:
They're trying to suggest that there's two layers of additional here, and there's not.

[00:25:03] Speaker 04:
A veteran is entitled to a basic entitlement for disability.

[00:25:08] Speaker 04:
That's section 1110.

[00:25:09] Speaker 04:
And on top of that, additional compensation for dependency.

[00:25:15] Speaker 04:
That's 1115.

[00:25:17] Speaker 04:
We go to 1115, children under the age of

[00:25:22] Speaker 04:
18 would be governed by sections B and C. Children over the age of 18 between 18 and 23 and pursuing higher education would be under 1115, 1F.

[00:25:35] Speaker 04:
Now Mr. Wright also argues in the alternative that if 1115 at 1F is barred, then some default compensation under B and C should still be available.

[00:25:49] Speaker 04:
As we argued in our brief that argument as a practical matter is should be waived because it wasn't raised in the opening brief But it's not persuasive either The definition of child in 101 provides for children under the age of 18 Those who are permanently incapacitated before the age of 18 and those were 18 to 23 and pursuing a higher education

[00:26:14] Speaker 04:
So you take that definition of child and you go to 1115.1f or 1115 as a total.

[00:26:22] Speaker 04:
That talks about what additional compensation is available for those children.

[00:26:28] Speaker 04:
Children or adult child between the ages of 18 and 23 pursuing higher education is governed by subsection 1f.

[00:26:35] Speaker 04:
We know that because that section begins with the word notwithstanding, meaning notwithstanding or despite the basic compensation in subsections b and c.

[00:26:45] Speaker 04:
It also provides for the monthly amount payable for those adult children, not an amount in addition.

[00:26:52] Speaker 01:
So I'm a little confused because I'm looking at 1115.

[00:26:56] Speaker 01:
And if I heard you correctly, I thought you said that B and C did not apply to an adult child over the age of 18.

[00:27:09] Speaker 01:
So if that were the construction, then there would be no benefits under B and C to take away.

[00:27:18] Speaker 01:
by virtue of the other subsection, other statutory section 3562.

[00:27:27] Speaker 04:
Correct.

[00:27:28] Speaker 01:
I mean, B and C don't apply to an adult child over the age of... If we adopted that construction, then we don't reach the question of the effect of 3562, right?

[00:27:40] Speaker 04:
Correct.

[00:27:40] Speaker 04:
I'm simply addressing an argument raised by Mr. Wright.

[00:27:46] Speaker 01:
Well, I've got to say I'm confused.

[00:27:50] Speaker 01:
I thought the idea was that 3562 prevented the receipt of benefits under B and C, let's say, even after the expiration of the F benefits.

[00:28:05] Speaker 01:
But you're saying that B and C never apply to a child over the age of 18 anyway.

[00:28:12] Speaker 04:
So that is our primary argument, that B and C would not apply to a child over the age of 18.

[00:28:18] Speaker 01:
If we accepted that, 35, 62 doesn't matter, right?

[00:28:26] Speaker 04:
I'm not sure I understood what you meant by doesn't matter.

[00:28:29] Speaker 01:
I thought the argument here was that B and C gave benefits to this individual child here.

[00:28:38] Speaker 01:
And that by electing to go under F,

[00:28:41] Speaker 01:
the child lost the benefits of B and C. But under your theory, B and C don't apply at all because this particular child is over the age of 18.

[00:28:53] Speaker 01:
So there's no benefit to take away because the benefit doesn't apply in the first place.

[00:28:58] Speaker 01:
What am I missing?

[00:29:00] Speaker 04:
A nuance.

[00:29:03] Speaker 04:
So our primary argument is that not B and C, but one F further down in the statutory section.

[00:29:12] Speaker 04:
is what the veteran loses when the adult child elects Chapter 35.

[00:29:18] Speaker 01:
But I thought that what the veteran loses is the B and C benefits, right?

[00:29:27] Speaker 04:
Our primary argument is that they lose F and B and C don't apply, because they would never have applied under the definition of child.

[00:29:36] Speaker 01:
OK, but if that were true, then 3562 has no role to play in this, right?

[00:29:42] Speaker 01:
Because the commencement of the study doesn't take away any benefits because you say there are no benefits in the first place.

[00:29:50] Speaker 04:
There are benefits under 1F.

[00:29:52] Speaker 02:
But don't we have to decide the case on the basis that it comes to us?

[00:29:59] Speaker 02:
3562.

[00:29:59] Speaker 02:
So regardless of the effect of 1F on B and C, we decide the case on 3562, which was the basis on which was decided below.

[00:30:15] Speaker 04:
Correct.

[00:30:15] Speaker 04:
But I think you get to the same result whether or not B and C encompasses a child under 18 or not.

[00:30:24] Speaker 04:
Right?

[00:30:25] Speaker 04:
Are 3562 bars a duplication of benefits?

[00:30:28] Speaker 04:
for adult children pursuing higher education.

[00:30:32] Speaker 04:
So first and foremost, we believe that 3562 bars 1115.1f.

[00:30:38] Speaker 04:
But even if you were to view 1115 as providing still a default measure of compensation under B and C, we would argue that it's still barred by 3562, because 3562 is a bar to quote additional amounts of compensation

[00:30:58] Speaker 04:
because of an adult child.

[00:31:01] Speaker 01:
OK, but Judge Lurie is right, correct, that the Veterans Court didn't decide that B and C were inapplicable because this child is over 18.

[00:31:10] Speaker 04:
The Veterans Court didn't decide anything about B and C because that argument was not raised below.

[00:31:15] Speaker 04:
That's why our primary argument on this topic is that the court shouldn't consider it was never raised below.

[00:31:23] Speaker 01:
But you didn't raise it either, because now you're saying B and C doesn't apply to a child over 18.

[00:31:31] Speaker 01:
So you don't need to take away any benefits, because there are no benefits in the first place.

[00:31:37] Speaker 04:
Right.

[00:31:38] Speaker 04:
But we're responding.

[00:31:42] Speaker 04:
But just to close the loop on this topic, 3562 is meant to bar additional benefits on behalf of or because of a child.

[00:31:53] Speaker 04:
So whether or not B and C provides a base level of compensation or not, all of 1115 is titled additional compensation for a dependent.

[00:32:03] Speaker 04:
So we can go back and forth on whether B and C provides some sort of default compensation, even in the absence of 1F.

[00:32:12] Speaker 04:
But I think 3562 still bars all compensation on behalf of a child.

[00:32:19] Speaker 04:
And that's the entirety of 1115.

[00:32:21] Speaker 02:
Thank you, counsel.

[00:32:26] Speaker 02:
Mr. Leroy, we'll give you your three minutes, all three minutes.

[00:32:34] Speaker 01:
Could you just begin by dispelling my confusion about this?

[00:32:37] Speaker 01:
The government's argument is that B and C don't apply to this child at all.

[00:32:42] Speaker 01:
That was not decided by the Veterans Court.

[00:32:47] Speaker 01:
And you disagree with it, right?

[00:32:48] Speaker 01:
You believe that B and C do apply to children over 18, right?

[00:32:52] Speaker 00:
That's right.

[00:32:52] Speaker 00:
So I'll do my best to dispel the confusion.

[00:32:54] Speaker 00:
So we have two arguments for what is bark.

[00:32:57] Speaker 00:
Our alternative argument, our backup argument,

[00:33:00] Speaker 00:
is only subsection 1F of 1115 is barred by 3562.

[00:33:09] Speaker 00:
We didn't specifically articulate this below.

[00:33:12] Speaker 00:
We think it's fairly encompassed because we're asking the question of what benefits are Mr. Wright entitled to.

[00:33:17] Speaker 00:
But even if we didn't present it enough below to survive forfeiture, we think the court can address it.

[00:33:23] Speaker 00:
It's a pure question of law that's been briefed here.

[00:33:26] Speaker 01:
under this but the government is saying if I understand there is a BNC doesn't apply to this situation at all because the child's over 18.

[00:33:35] Speaker 01:
That's not the basis for the decision.

[00:33:36] Speaker 01:
You disagree with that.

[00:33:38] Speaker 01:
You say there are BNC benefits.

[00:33:40] Speaker 01:
Yes.

[00:33:41] Speaker 01:
Unless there is a forfeiture under 3562.

[00:33:44] Speaker 00:
Right.

[00:33:44] Speaker 00:
Yes.

[00:33:45] Speaker 00:
So here's why.

[00:33:47] Speaker 00:
1115, every benefit that is given to a veteran for the child is defined as child.

[00:33:54] Speaker 00:
The definition of child is in 38 USC 101 sub 4, and that includes a child who is over the age of 18 who is pursuing education.

[00:34:05] Speaker 00:
So when 1115 1B and C say the veteran gets a certain amount of money for a child, that includes a child who is pursuing education, then

[00:34:16] Speaker 00:
1115 sub 1 sub F. So after B and C says, notwithstanding the other provisions, if you have a child who is over 18 pursuing education, you get extra money, $240.

[00:34:30] Speaker 00:
Other B and C.

[00:34:33] Speaker 00:
Well, so it would be under F, because F says notwithstanding B and C, you get $240.

[00:34:38] Speaker 00:
Now, this is under our alternative way to decide this case.

[00:34:43] Speaker 00:
We say 3562, what it really does is targets F and says F goes away.

[00:34:51] Speaker 00:
You don't get the extra benefits for the child under F. You're back to B and C, which is about roughly $100 a month for the child.

[00:34:59] Speaker 00:
So still a substantial benefit.

[00:35:00] Speaker 00:
for the veteran to receive to pay for the child.

[00:35:03] Speaker 00:
So I wanted to make a couple of other points.

[00:35:06] Speaker 00:
First, two on the bar lifting.

[00:35:09] Speaker 00:
My friends didn't address the hypothetical that I presented that the definition of child, this is 38 USC 101 sub 4A Romanet 2.

[00:35:19] Speaker 00:
The definition of child includes a child who has become permanently incapable of self-support before the age of 18.

[00:35:27] Speaker 00:
Under their view, if that child were to try to

[00:35:30] Speaker 00:
obtain vocational training at a trade school, which is covered by chapter 35, and then fails, doesn't receive benefits anymore, the veteran parent would no longer receive any compensation to support that child.

[00:35:41] Speaker 00:
That cannot be the result that Congress intended.

[00:35:44] Speaker 00:
That's a cruel result.

[00:35:45] Speaker 00:
We would expect clear language like that, especially in a veteran's benefits case.

[00:35:50] Speaker 00:
My final point of the court's indulgence is just that they don't have an explanation for why the bar in sub one and sub two of 3562 uses different language.

[00:36:01] Speaker 00:
It uses different language for what is barred.

[00:36:04] Speaker 00:
Our interpretation, our primary interpretation here, is the only thing that gives meaning to those two different bars.

[00:36:11] Speaker 00:
Thank you, Your Honors.

[00:36:12] Speaker 02:
Thank you to both counsel.

[00:36:14] Speaker 02:
The case is submitted and that concludes today's arguments.