[00:00:00] Speaker 03:
We will hear argument next in case number 251106, Batiste against Collins.

[00:00:08] Speaker 03:
Mr. Jones.

[00:00:09] Speaker 01:
That's correct.

[00:00:12] Speaker 01:
May it please the court, this is Mr. J. Brian Jones, and I'm here on behalf of Mr. Frank Batiste.

[00:00:22] Speaker 01:
The issue in this case revolves around whether or not to give just a little bit of a factual background, when the veteran initially applied for pension in this case, he checked no, checked the box no, that he did not need aid and attendance. And then later on in 2016, he submitted an aid and attendance examination and the regional office granted the claim.

[00:01:00] Speaker 01:
And so we filed for an early effective date, arguing that he made an informal claim back in 2006, which has been continuously prosecuted.

[00:01:11] Speaker 01:
And the board in this, you know, it was denied. We went up to the board, and the board essentially held that because he checked no on the box, that he did not clearly identify the benefits sought.

[00:01:33] Speaker 03:
stop at what he checked in that box and in fact did look at the medical evidence and concluded or found probably is the right term that that medical evidence did not give rise to a basis for an aid and attendance claim so that it went beyond the box to do the thing you do to see if a claim not, in fact, expressly presented is essentially sufficiently lurking in the underlying evidence.

[00:02:08] Speaker 01:
That is true. However, as we pointed out in our brief, it seems like that the board in that finding was greatly influenced by the fact that the veteran checked no on the box. And that seemed to greatly influence the board and how it read the evidence.

[00:02:26] Speaker 03:
Why would that be improper? I mean, if was not sort of a legal question.

[00:02:35] Speaker 03:
It was essentially, do you need this kind of daily in-home assistance? And the veteran who said no, who knows more about this, presumably, than anybody else, is that really not part of the evidence about whether he actually does need it?

[00:02:54] Speaker 01:
At the time, not later.

[00:02:56] Speaker 03:
Well, at the time...

[00:03:00] Speaker 01:
First of all, as we pointed out, that the evidence that was submitted at the time, first of all, the only records that ever mentioned unemployability, which is basically what the board held, was the Social Security records. I mean, the records from Newkirk Neurology showed that the veteran ambulates with a cane. Records from Dr. Hebert showed that the veteran cannot walk without a walker. And in both of those records, there's no talk about whether or not the veteran is a camp worker.

[00:03:30] Speaker 01:
Social Security records indicated that the veteran uses a rolling walker. The same Social Security records also indicated that the veteran had issues addressing and undressing himself, and that the veteran, when he moved back to Louisiana, had to stay at first with a friend and then stay in a shelter at the VA's expense due to needing assistance.

[00:03:50] Speaker 03:
Where is that piece of evidence in the appendix?

[00:03:53] Speaker 01:
Yeah, okay, records from Dr. David Hebert, I think is, let me make sure.

[00:04:00] Speaker 01:
Well, first of all, records from Newkirk Neurology is appendix 67 through 69. And records from Dr. David Hebert is 78 to 82.

[00:04:28] Speaker 01:
Okay. And also the records where the Social Security records that indicated the veteran uses a rolling walker, I believe is on appendix page 60.

[00:04:40] Speaker 01:
And the Social Security records that the veteran had issues addressing and addressing himself, and that the veteran moved back to Louisiana to stay at first with a friend and then stay in a shelter. The VA's expense due to needing assistance is on APPX 54. Okay?

[00:04:55] Speaker 01:
All right. And...

[00:04:57] Speaker 01:
Also, if you take a look at the 2016 grant.

[00:05:04] Speaker 01:
I believe 54, that's correct. Let me make sure I have that number correct.

[00:05:15] Speaker 01:
That is the Social Security decision which granted the veterans Social Security rights.

[00:05:21] Speaker 03:
That decision starts on 48, and this is 48.

[00:05:24] Speaker 01:
And so I think if you get 154, it talks about, I'm not sure. 154, I think it talks about dressing and addressing himself. He had to stay at first with a friend. And then on APPX 60 of those Social Security records, it says he uses a rolling ball.

[00:05:51] Speaker 01:
And what we pointed... Are you saying that the Veterans Court and the board mis-evaluated all of the evidence of record connected to the 2006... Well, I think our argument is, and this is what we argued in our brief, is that if the board wouldn't have got focused on the fact that he checked no on the box...

[00:06:21] Speaker 01:
which we think effectively then precludes him from making a claim, and that seemed to be, especially if you go to APPX 12 in particular, the board basically said on APPX 12 when it decided to claim, it basically only cited, if you take a look at the first paragraph, it only cited the fact that that he checked off the box as to why it couldn't be a claim and didn't cite any of the case law that we cited in our brief.

[00:06:58] Speaker 01:
And if you also take a look, I think in APPX 13 and 14, when the board was then analyzing the evidence of whether or not it's really a claim about unemployability, it It's in response to because it's in response to a JMR because originally the board had said that, hey, the veteran can make a Q claim, and then it was sent back about, well, if you suggested he could make a Q claim, then are you really finding that there is evidence that he needed aid and attendance?

[00:07:41] Speaker 01:
And so it's in response to that would be our position on that.

[00:07:46] Speaker 02:
So just getting back to the Veterans Court decision that we're reviewing today, it says that the board was correct that even though there's a duty to sympathetically read a veteran's filings, that the fact that he indicated he needed a walker or cane wasn't enough to establish that he was seeking this form of aid because he didn't put forward any evidence that he was blind or otherwise incapacitated such that he needed assistance with activities of living.

[00:08:32] Speaker 01:
What we point out is that when the veteran himself filed his claim in 2016, he submitted an aid and attendance examination. which is, I think, is it 33 to 30? It's 2016.

[00:08:46] Speaker 01:
Right, but the point that I'm making is, Judge, is that the evaluation found that the veteran needs assistive devices for ambulation out of home with a walker and he used a cane while in his house. And then on December 13, 2016, entitlement to special monthly pension based on the need for aid and attendance was granted. And what we then argued in our brief is that this is the same factual basis as to what he submitted in 2006 because uh you know because in 2016 he you know assistive devices for ambulation out of home with the walker we have evidence that he uses a rolling walker uses a cane while in his house we have evidence that says he uses the cane while in his house so it would be inconsistent with the

[00:09:36] Speaker 02:
I thought there was more statements and evidence of the 2016 claim beyond just saying I need a walker or a cane.

[00:09:47] Speaker 01:
Let me pull up the aid and attendance examination and see.

[00:10:02] Speaker 01:
I'm sorry, the aid and attendance exam was on 36 to 37.

[00:10:14] Speaker 01:
I mean, I guess maybe you could say, you know, he checked off. Is the claimant able to feed himself? The doctor said yes, but he said sometimes he has increased arthritis of his hands and impairs his ability, but that's by history.

[00:10:35] Speaker 01:
You know... Right.

[00:10:38] Speaker 02:
You couldn't prepare his own meals. He required assistance in bathing and hygiene.

[00:10:44] Speaker 02:
He was not able to safely drive. I guess those are more specific items that were not... I think, let me see if...

[00:11:01] Speaker 01:
Yeah, and it doesn't really explain within the decision itself on APPX 35 exactly what it is. I mean, I guess one could argue that, except for the doctor checked off yes in terms of able to feed himself.

[00:11:34] Speaker 01:
Well, I think that the question would be – What is the purely legal question? I think that the legal question is that if – does the veteran – is it – when identifying the benefits sought, You're required to fully sympathetic the claim, and he doesn't have to make it explicit. And so the question is, does the board's finding that the fact that he checked off the box needing the meeting note, does that preclude him from making a claim or not?

[00:12:23] Speaker 01:
And is that consistent with...

[00:12:27] Speaker 01:
with the case law and regulations of fully sympathetically developing the claim and whether or not a claim has to be made explicit, and that would be the legal issue as we would see it.

[00:12:37] Speaker 03:
You're into your rebuttal time. You can use it now or save it.

[00:12:43] Speaker 01:
I'll save it.

[00:13:07] Speaker 00:
Good morning. May it please the Court. As the Court said in Ellington v. Peake in 2008, the interpretation of the contents of a claim for benefits is a factual issue over which we do not have jurisdiction. The question here is, is there a legal question for the Court?

[00:13:22] Speaker 00:
That was Ellington v. Peake, 541 F.3D 1364. So what's the case? Ellington v. Peake.

[00:13:29] Speaker 04:
What's the site of the case?

[00:13:31] Speaker 00:
Again, the interpretation of the contents of a claim for benefits is a factual issue over which we do not have jurisdiction.

[00:13:38] Speaker 04:
And what's the site?

[00:13:39] Speaker 00:
Ellington v. Peake. Sorry, the citation, 541 F.3D 1364. And again, the question is, is there a legal question before this court? What's being put forward to this court is to determine whether or not in 2006 the evidence should be weighed in a certain way to indicate that there was a claim for special monthly compensation based on a need for aid and assistance. This is a factual issue that this court does not have jurisdiction over.

[00:14:09] Speaker 03:
Well, so I think this is my understanding of the way this usually works. It's...

[00:14:15] Speaker 03:
can't review factional determinations, we can't review applications of law to fact, so the other side has to identify some legal question that was decided. And typically that means, almost always means, that the Veterans Court opinion on its face indicates the resolution of a legal question, but not quite always. There are also circumstances where when you look at what the Veterans Court did, one can infer... an implicit resolution of a legal question.

[00:14:48] Speaker 03:
And here, the only legal question at issue is, I think, a sort of sympathetic reading or a no answer or disregarding anything but the no answer and not looking at all at the underlying medical problem. records and at least we can take a peek at whether the answer to the question what do those medical records show is sufficiently apparent even at the level of ambiguity to require that in a sympathetic reading one have found it to be sufficient and that I think is how there are a bunch of steps in that how the veteran here gets to, let's look at the records.

[00:15:39] Speaker 03:
And I realize it's quite a high burden for a veteran to, a heavy burden to carry.

[00:15:47] Speaker 03:
Why isn't there enough in the 2006 records to have at least made ambiguous whether there really was an aid and assistance prompt?

[00:16:03] Speaker 00:
Well, first of all, I'll just address part of the earlier part of that question before, and then I will come back to what in 2006 was ambiguous. Because firstly, in order to get to what you said, if there was this ruling in the Veterans Court decision that the no was itself legally dispositive or somehow stopped the need to go to aid and assistance, that might be a legal question. But that's not the holding that has happened here. The Veterans Court said, well, the board... Looking to the board's decision, they didn't just look to the snow.

[00:16:34] Speaker 00:
They looked to the evidence to determine that there was no claim here.

[00:16:38] Speaker 03:
What was implicit in the medical records?

[00:16:41] Speaker 00:
What the appellant's point was to was the need for use of a cane or walker.

[00:16:47] Speaker 03:
There was also the reference, which I have not been able to find, to something about need for help in dressing in the Social Security.

[00:17:02] Speaker 03:
and we were pointed to, I think, Appendix 54, and my eyes are not picking up that reference to dressing.

[00:17:13] Speaker 00:
I apologize, I don't have Appendix 56 in front of me. I would happily take a look at it.

[00:17:20] Speaker 03:
We can check. That was the one thing that seemed to be standing out. It's something about standing with a friend who needed help dressing. and I could just be missing it. The rest is Kane and Walker, and there's more later when it comes to 2016.

[00:17:43] Speaker 00:
The evidence in 2016 is the evidence that the board points to to say this is why you get this benefit. There was no question there. It is clear evidence that there was need of assistance in bathing and tending to hygiene needs, need of assistance in preparing meals, unable to prepare meals on his own, sometimes need of assistance to eat, and also I believe on Appendix 37, there was a note in Box 33 regarding inability to accomplish daily living items such as buying groceries, paying bills, and unable to drive itself.

[00:18:16] Speaker 00:
These are the evidence that the board pointed to when it granted on the 2016 claim. The question simply is, was any of this in the 2006 claim? Both the board and the Veterans Court and our brief have gone through this and said, well, it's not there, but even if to an element there was, we're then talking about the weighing of evidence. We're then talking about getting into the factual question of do we have jurisdiction to say this is something that is a legal question that this court can look at?

[00:18:45] Speaker 02:
And in this situation, it's... Would you read the Veterans Court decision as relying on two things? One was checking the box now, and then two, that all that the veteran identified in 2006 was the need for using a walker or cane?

[00:19:06] Speaker 02:
It's just those two items.

[00:19:08] Speaker 00:
I believe that what they're relying on is not just the two items, but the lack of a third, fourth, fifth item. Those are the items they can see in the record that are being brought to them as the argument by the appellant at the Veterans Court stage who has the burden of showing that there was something that requires the Veterans Court to overturn the board. And the board had looked at these items and said no, and there was nothing else the appellant pointed the veterans court towards. To the extent that, again, I'm first learning about it potentially now, but if there was additional evidence that was about bathing, that evidence was not presented to the veterans court, and therefore there's a waiver exhaustion question there that would apply in this situation.

[00:19:49] Speaker 00:
But it's not just these questions. What the Veterans Court is looking at is not just the factual issues, but the Veterans Court is applying this court's precedence, applying the statutes, applying the regulations to the facts of this case to say, is this legal error? Or is this a factual error of the board that I can review? And so that's the decision we are now reviewing. It's not the board's factual determination, but was the Veterans Court, as a matter of law, wrong in finding that the board did not commit those errors?

[00:20:17] Speaker 03:
The reason I started where I asking us to review the board, that's not our job. We can only get to the underlying evidence at all in a very limited way as some indication that what the Veterans Court did may have been implicitly, if not expressly, affected by a legal error. That's the higher standard.

[00:20:46] Speaker 00:
Exactly. And I think that this court in 2020 looked at this question of how far, at what point does this need, this burden to assist attached to a claim? At what point does the VA have to go beyond what's being put in front of it to say there might be something more here? And then this is the Murphy v. Wilkie case of 983 F3rd 1313, where this court explained that the proper inquiry for the VA is to determine what diagnoses, conditions, or illnesses can reasonably be understood as included in the request, and went on to say, we emphasize that this inquiry does not require that the VA embark on a fishing expedition to explore any potential condition, which the record may support as a basis for the benefits, nor does the VA have to attempt to read the mind of the claimant.

[00:21:37] Speaker 00:
The VA need only explore those conditions which may be reasonably considered in the scope of payment. Court added emphasis to the word reasonably.

[00:21:47] Speaker 00:
And that's exactly what we sort of have here. In this situation, the VA was presented with a claim for one claim in 2006. It was told that the veteran needed a walker or a cane to get around. And when asked directly in the forms, are you looking for special monthly compensation? Do you need aid and assistance? The veteran accepted no.

[00:22:11] Speaker 00:
This is a situation where the VA, while some obligations were attached, the obligation that's being set here to ignore the no, essentially, to look past that, and to look at a record that has no evidence showing aid and attendance, and somehow come to an aid and attendance bill.

[00:22:28] Speaker 02:
What if, hypothetically, since I haven't been able to identify any 54 of what the Appellants Council claims to be in that, but what if in that social security decision, There are very clear statements and findings by the Social Security Administration that this is a person that did need a lot of aid and assistance to do daily household things. In spite of the fact that perhaps in 2006 the only thing the veteran identified was that he used a walker or a cane, Would those kinds of statements and analyses and a social security decision be something that the VA would need to look at and consider and evaluate above and beyond his express statement that he was a walker?

[00:23:24] Speaker 00:
I think there's... Again, I haven't seen these statements, but hypothetically in a situation where the VA is presented with evidence that a person needs specifically aid and attendance...

[00:23:35] Speaker 00:
there's definitely going to be a situation in that possibility where the VA's duty applies. This is a paternalistic system. The VA is supposed to help veterans with their claims.

[00:23:47] Speaker 00:
I don't believe that's the situation here. I don't believe anyone's pointed to, so far, to my knowledge, before the board, before the Veterans Court, that there was this specific discussion of aid and attendance, a specific discussion of inability to do daily tasks without the assistance of another human being. And to bring that into context, aid and attendance is not simply just something that the VA can hand out almost willy-nilly, it is a statutory regulatory requirement.

[00:24:20] Speaker 00:
There are decisions that are laid down in the statutes as to when VA can give this out, and VA cannot simply go beyond what is being told. Aid in attendance is not walking with a cane or with a walker will not hit those marks. Instead, the aid in attendance statutory language requires evidence such as Bedridden is one example. Blindness is another example. And then it goes through several other examples, such as inability to address oneself, inability to feed oneself, difficulty with daily tasks.

[00:24:58] Speaker 00:
That's the level of information that we're looking for in this situation. And in this situation, the board looked through it, couldn't find it, but gave the earliest date possible it could do, based on 38 U.S.C. 5110.

[00:25:12] Speaker 00:
the date that the claim for this first rose was first presented to the VA, which was the 2016 claim.

[00:25:20] Speaker 00:
And the Court of Veterans Claims looked at that and determined that there was nothing else to be done here, that everything had been done correctly. The Board had not simply looked at no and moved on. The Board had looked at the no, considered, because, again, it's part of the record. It's something the Board must at least consider. but also look to the evidence to determine, well, hang on a second, was this actually here? Could the no have been an error or misunderstanding? And determine, no, there's simply nothing in the record in 2006 that leads us to this degree.

[00:25:51] Speaker 02:
If the argument here today, I feel, is the VA must comply with the duty to sympathetically read the veterans' violence, I assume you would say, well, that's what happened here. They invoke the board and the Veterans Court. It's expressly referred to that duty and applied it.

[00:26:18] Speaker 02:
I guess in your view, that would lead to an affirm rather than a dismissal.

[00:26:22] Speaker 00:
We, first of all, as we've put in our briefs, we think that dismissal and lack of jurisdiction is the correct move here because there is no actual legal question. The question is whether there's this new legal requirement of not putting a no. It's simply just not what the result below. We can't appeal a decision that the lower court did not actually decide, and it never reached that point. But to the extent it's not a dismissal of jurisdiction, we would say that the court below should be affirmed as well.

[00:26:50] Speaker 00:
Unless the court has anything further. Thank you for your time.

[00:26:53] UNKNOWN:
Thank you.

[00:27:01] Speaker 01:
Does the court have any questions for me?

[00:27:05] Speaker 01:
No.

[00:27:06] Speaker 02:
There was a statement at 8.54 that you signed it to in the Social Security Administration decision that there was some clear findings that required...

[00:27:40] Speaker 03:
Is it possible that you were referring to a statement which is on page 14 of the Social Security Statement, which goes into the bottom of 161, that is, taking more time to dress himself?

[00:27:56] Speaker 01:
Yes, yes, yes, yes, yes, yes, that would be it. Probably, probably. I probably got the numbers slightly off.

[00:28:07] Speaker 03:
Play with possibilities because of your number four. So four is close to 14. This is 14 of the original document.

[00:28:15] Speaker 01:
Yeah, and it may be possible when I was preparing the brief, I may have got a little numbers off.

[00:28:21] Speaker 02:
Where on A61 are we? Last five lines. Six lines. Okay.

[00:28:31] Speaker 02:
I will also point out, too, that the... Did you raise this passage from H61 to either the Board or the Veterans Court? I know you're raising it to us now during this oral argument, but was this presented to either the Board or Veterans Court for that?

[00:28:54] Speaker 01:
Yes.

[00:28:55] Speaker 02:
Do you have a record of that?

[00:28:59] Speaker 01:
I don't think I attached a copy of my brief to the record. So, yes, I know I don't.

[00:29:09] Speaker 01:
I will also point out something real quick.

[00:29:14] Speaker 01:
On using the rolling walker and the walking with the cane, I think that one could infer, in fact, if you take a look at the aid and attendance examination, that an individual who has trouble with ambulation and balance, probably would need assistance with bathing, and so on and so forth. And in fact, I think that's what the aid and attendance exam that was submitted found, so I wish to point that out for your consideration.

[00:29:41] Speaker 03:
Right, and as it happens, this page 61 statement says, unable to bathe himself but taking showers.

[00:29:50] Speaker 01:
Yes.

[00:29:51] Speaker 03:
Hard to get an image.

[00:29:54] Speaker 03:
Yeah, yeah, yes.