[00:00:00] Speaker 01:
Our next case is Janie Hughes, Assistant Secretary of Veterans Affairs, 2024-2080.

[00:00:08] Speaker 01:
Ms.

[00:00:11] Speaker 01:
Clements, good morning.

[00:00:14] Speaker 04:
Thank you.

[00:00:14] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 04:
This case comes before you today on a very narrow but very critical issue at the Veterans Court, which is the proper standard of review under which the Veterans Court reviews the

[00:00:28] Speaker 04:
reasons and bases, the explanation for the denial that the Board of Veterans' Appeals gave.

[00:00:34] Speaker 04:
It's something that, oddly, has never been directly addressed by either this court or the Court of Appeals for Veterans' Claims that I have found in the words, the standard of review for reviewing reasons or bases is.

[00:00:46] Speaker 04:
However, the Court of Appeals for Veterans' Claims from the beginning has been reviewing it de novo.

[00:00:55] Speaker 01:
The question of the adequacy

[00:00:57] Speaker 01:
of the board's statements, facts question, application of law to fact beyond us?

[00:01:05] Speaker 04:
It is not, Your Honor.

[00:01:06] Speaker 04:
And that is because what we're doing here is we're actually not asking anything about the specific facts involved in this case or the adequacy of the board statement or reasons or bases.

[00:01:17] Speaker 04:
All we're talking about here is the standard of review that the court applied when reviewing those reasons or bases.

[00:01:24] Speaker 04:
And the court specifically said,

[00:01:27] Speaker 04:
Reviewing for an error in the reasons or bases is under clear error, not de novo.

[00:01:33] Speaker 04:
Clear error is for factual findings, which they had also said earlier in the decision.

[00:01:38] Speaker 04:
However, reasons or bases cannot be clear error.

[00:01:43] Speaker 04:
Reasons or bases is laid out in 71041.

[00:01:47] Speaker 04:
The idea is that it's the first accountability check for the board from the court.

[00:01:52] Speaker 04:
The court can't look at factual findings or legal findings

[00:01:56] Speaker 04:
unless it's sure it understands what the board did in the first place.

[00:01:59] Speaker 04:
So the threshold thing that the court needs to do is to review the statement of reasons or bases and decide for itself whether it makes sense to it or not.

[00:02:09] Speaker 02:
It's not something that- Reasons or bases are the facts that it relied on to reach its conclusion.

[00:02:17] Speaker 02:
Isn't that entirely a factual

[00:02:19] Speaker 02:
matter?

[00:02:20] Speaker 02:
I mean, that's what you were arguing below.

[00:02:22] Speaker 02:
I mean, you were making factual arguments about the record and what inference issues come from the record and what the record indicated, right?

[00:02:30] Speaker 04:
Well, I mean, that was one way to view it.

[00:02:31] Speaker 04:
And that was how the court viewed it.

[00:02:33] Speaker 04:
Some of our legal questions that we phrase as legal questions that the court saw more as factual findings.

[00:02:39] Speaker 04:
But the reasons or bases, factual findings are part of the reasons or bases.

[00:02:43] Speaker 04:
But the reasons or bases

[00:02:44] Speaker 04:
is the reasoning.

[00:02:45] Speaker 04:
It's the logic.

[00:02:47] Speaker 02:
Where in the record did you argue to the Veterans Court that the board's decision didn't include sufficient detail and explanation, which I think would be what you're saying is your legal argument now.

[00:02:59] Speaker 04:
It's actually not.

[00:03:00] Speaker 04:
And I apologize that I haven't been clear enough.

[00:03:03] Speaker 04:
I'm not trying to argue here that the board's statement of reasons or basis in this case was or was not adequate.

[00:03:09] Speaker 04:
That is not something for this court to decide.

[00:03:12] Speaker 04:
All I am saying here is that it matters what standard of review is used, and that the court here.

[00:03:18] Speaker 02:
Doesn't the standard of review, even under your theory, depend on what the question is?

[00:03:24] Speaker 02:
I mean, it does.

[00:03:26] Speaker 02:
OK, so what are you saying the question is where we'd apply a de novo standard?

[00:03:30] Speaker 04:
The question is, do I understand as the court

[00:03:34] Speaker 04:
what the board did here.

[00:03:35] Speaker 04:
Do I understand fully?

[00:03:38] Speaker 04:
Am I really able to get to these factual findings and legal findings through the explanation that the board gave?

[00:03:47] Speaker 02:
That's the argument you made, that there was insufficient specifics in the board's decision for you to understand what it was saying?

[00:03:58] Speaker 04:
Yes.

[00:03:59] Speaker 04:
We started with legal arguments.

[00:04:01] Speaker 04:
The board shouldn't have done this.

[00:04:02] Speaker 04:
The board shouldn't have done that.

[00:04:04] Speaker 04:
And then we went to the insufficiency of the reasons or bases, which basically said, really, the reason we brought all these different legal theories is because we can't tell what the board did here.

[00:04:15] Speaker 04:
There were facts that the board was spewing that we just couldn't figure out where they came from, whether they were extra record, what they were.

[00:04:22] Speaker 04:
So our argument towards the end of our original CAVC brief is about why these reasons or bases are inadequate.

[00:04:31] Speaker 04:
brought that up.

[00:04:32] Speaker 04:
The court looked at, first of all, our legal arguments, decided they were more like factual arguments.

[00:04:37] Speaker 04:
That's not really on the table here today.

[00:04:39] Speaker 04:
The concern is that then when they turn to the reasons or bases, they said, OK, well, these we review for clear error.

[00:04:46] Speaker 04:
And then they clearly did so.

[00:04:48] Speaker 04:
In the section on adequate statement of reasons or bases, they said, there's a plausible basis in the record for what the board did, but that's clear error.

[00:04:56] Speaker 04:
And they said, Mrs. Hughes has not shown that the board clearly erred.

[00:05:00] Speaker 04:
And that's clear error.

[00:05:01] Speaker 04:
And the thing is that at the Court of Appeals for Veterans Claims, something like, well, actually, I know exactly, 83% of cases are remanded one way or another, usually for reasons or bases errors.

[00:05:13] Speaker 04:
But at the same time, only a couple of dozen cases every year are reversed for clear error.

[00:05:18] Speaker 04:
So it makes a huge difference at this court whether you're reviewing something for clear error

[00:05:23] Speaker 04:
or reviewing something de novo or without deference.

[00:05:27] Speaker 02:
So what's your best case of ours where we called the reasons and bases for de novo review of the reasons and bases?

[00:05:37] Speaker 04:
What is what I'm looking for here from you?

[00:05:40] Speaker 04:
What I would love from this court.

[00:05:42] Speaker 02:
No, not what you're looking for.

[00:05:43] Speaker 02:
I'm sorry.

[00:05:43] Speaker 02:
What we've done in the past that would support your theory here.

[00:05:46] Speaker 04:
Well, it's interesting, because you have definitely talked about reasons or bases in a general sense in the importance of the role that it plays at the Veterans Court, Thomas versus McDonough, Sickles versus Shinseki, Deloach versus Principe, basically talking about how important reasons or bases are and how it's the court's job to make sure that the board does it.

[00:06:13] Speaker 04:
not specifically laying out what the standard of review for that would be, but that it's a statutory obligation for the board to provide an adequate statement of reasons or bases.

[00:06:23] Speaker 04:
And so it's appropriate for the court to make whatever decision regarding whether it thinks it fully understands what the board was getting at before it can even get to factual findings or legal findings.

[00:06:37] Speaker 03:
Are you arguing for de novo review?

[00:06:39] Speaker 03:
Is that what you're?

[00:06:40] Speaker 04:
Yes.

[00:06:40] Speaker 04:
What we would love from this court is a clear statement that when the Court of Appeals for Veterans Claims reviews the adequacy of a statement of reasons or bases by the Board of Veterans Appeals to see whether it comports with the statutory responsibilities laid out in 38 U.S.C.

[00:06:56] Speaker 04:
7104 D.1, that it does so de novo.

[00:07:00] Speaker 04:
It does so without deference.

[00:07:02] Speaker 04:
Because the court is the first person to make this

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This is like harmless error.

[00:07:07] Speaker 04:
It's not something that the board looked at necessarily.

[00:07:10] Speaker 04:
It's something that it's the court's job to look at.

[00:07:12] Speaker 04:
There's nothing necessarily for them to give deference to in terms of is this statement adequate.

[00:07:18] Speaker 04:
Instead, it's the first thing that the court does in terms of I need to make sure that this makes sense to me.

[00:07:25] Speaker 04:
And we believe that not only does it just make sense that that would be de novo, but we also believe that 7261

[00:07:34] Speaker 04:
basically compels that.

[00:07:36] Speaker 04:
Oddly, the veterans court quoted or cited to 7261A4 when saying that the review of reasons or bases is for clear error.

[00:07:48] Speaker 04:
But all that A4 says is a finding of material fact.

[00:07:54] Speaker 04:
Hold unlawful set aside if the finding is clearly erroneous.

[00:07:57] Speaker 04:
We think that reasons or bases is better encapsulated in A1, which says,

[00:08:04] Speaker 04:
First it says, decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions.

[00:08:11] Speaker 04:
But then it goes on to say, and determine the meaning or applicability of the terms of an action of the secretary.

[00:08:16] Speaker 04:
So we think that, first of all, it is a relevant question of law, because statutory compliance with 7104D1 is a question of law.

[00:08:24] Speaker 04:
However, we also think that this determine the meaning or applicability of the terms of an action of the secretary

[00:08:31] Speaker 04:
is part of the court's job that they need to just look at de novo rather than deferring to the board presumably would think that its explanation was adequate.

[00:08:40] Speaker 04:
So if it did and the court deferred to it each time.

[00:08:44] Speaker 02:
Well, the problem I'm seeing is that their adequacy can mean two different things in this context.

[00:08:49] Speaker 02:
And the government says there's this first step where was the board's decision to include sufficient detail and explanation.

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And that's a version of whether it was adequate.

[00:09:02] Speaker 02:
But then there's yet another adequacy, which goes to did the evidence support

[00:09:09] Speaker 02:
what the board concluded with respect to the factual record.

[00:09:13] Speaker 02:
So I think we're mushing up the two, because I mean, reasons are bases.

[00:09:18] Speaker 02:
Sometimes, historically, the board has said nothing.

[00:09:22] Speaker 02:
And so it's been remanded by us, or it's been remanded from the CABC.

[00:09:27] Speaker 02:
Sometimes they said a little, but clearly not enough to discern the path which they used to get to where they got.

[00:09:35] Speaker 02:
That's the first thing about sufficient detail and explanation.

[00:09:40] Speaker 02:
Here, as I read the record, there's a lot of detail and explanation.

[00:09:44] Speaker 02:
And you're saying it's inadequate to support the conclusion they reached.

[00:09:47] Speaker 02:
And that's a different question.

[00:09:49] Speaker 02:
That's the second part of the test that the government articulated.

[00:09:52] Speaker 04:
I actually disagree, and I'll explain why.

[00:09:54] Speaker 04:
With the two-part process, we don't really consider that a two-part process of reviewing the reasons or bases.

[00:10:01] Speaker 04:
The first part that the secretary described is reviewing the adequacy of the statement of reasons or bases.

[00:10:06] Speaker 04:
Do I understand what's going on here?

[00:10:07] Speaker 04:
The second part, where they say, is this adequately supported by the record, that's just reviewing the facts, reviewing the findings of fact and the findings of law for clear error.

[00:10:17] Speaker 04:
It's not part of the reasons or bases.

[00:10:19] Speaker 04:
It's the next step in the adjudication process.

[00:10:23] Speaker 04:
It does sound confusing because there is a lot of detail in that board decision.

[00:10:30] Speaker 04:
Looking at a lot of these decisions below, what we're really missing here are some logical bridges and some source material for some of the most important findings that the board made.

[00:10:41] Speaker 04:
So what we were looking at is that

[00:10:45] Speaker 04:
Ultimately, even if the board put many, many, many words on many, many pages, there were certain things that were not explained sufficiently.

[00:10:54] Speaker 04:
Either way, in this case, we don't have to decide at this court whether the board adequately provided a statement of reasons or basis or not.

[00:11:03] Speaker 04:
We just think it would be very important for the CABC to have guidance from this court saying, by the way, when you're doing this, this is not for clear error.

[00:11:12] Speaker 04:
This thing later, when you're reviewing the findings of fact and the findings of law, that's clear error.

[00:11:18] Speaker 04:
But when you first just try to decide what the board is saying and whether it makes sense to you, that needs to just be de novo, because that's your job.

[00:11:25] Speaker 04:
And that's what you do first.

[00:11:27] Speaker 02:
Is that what you were saying?

[00:11:28] Speaker 02:
Were you arguing before the Veterans Court that we have no idea what the board was saying, that we don't understand the basis upon which the board reached its conclusion?

[00:11:37] Speaker 02:
We were more specific than that, that it's not.

[00:11:39] Speaker 02:
Yeah, you were challenging the inferences and their factual conclusions.

[00:11:42] Speaker 02:
It was all about the facts, right?

[00:11:45] Speaker 04:
Well, we think that some of the inferences were not, and that some of the factual findings came from nowhere.

[00:11:51] Speaker 04:
And we were concerned about the boards, where the board is allowed to get facts from, and where the board is allowed to.

[00:11:58] Speaker 04:
There's a lot of TDIU, total disability due to individual unemployability case law, specifically about how

[00:12:06] Speaker 04:
The reasons or bases are not supposed to be just speculation.

[00:12:09] Speaker 04:
They're not supposed to be envisioning a job.

[00:12:11] Speaker 04:
They're not supposed to be conjecture.

[00:12:14] Speaker 04:
They're supposed to be explanation.

[00:12:16] Speaker 04:
And the most important logical bridges need to be done.

[00:12:20] Speaker 04:
And so this is a fairly common argument that we say, look, I guess we kind of get what the board is getting at.

[00:12:28] Speaker 04:
But we think that some parts of it are still left unexplained.

[00:12:33] Speaker 04:
Mrs. Hughes didn't understand where some of this information came from, from where the board started.

[00:12:39] Speaker 04:
The board started by saying these are the facts, and then got somewhere that she didn't understand how they got there.

[00:12:46] Speaker 04:
So that was the problem with the racism bases.

[00:12:49] Speaker 02:
Well, she didn't understand their factual, their findings, or she didn't understand their conclusions based on those facts.

[00:12:56] Speaker 04:
She understood that the conclusion was a denial.

[00:12:58] Speaker 04:
That part of it was clear.

[00:13:01] Speaker 04:
She didn't understand why the board made particularly important legal findings about her late husband's ability to be employed, et cetera.

[00:13:12] Speaker 04:
Given the evidence, how did that lead them to this conclusion?

[00:13:16] Speaker 04:
And so that was her concern below.

[00:13:19] Speaker 04:
And so that's what we brought to the court.

[00:13:21] Speaker 04:
And then we're very surprised to see that the court said that they would review that for clear error, because that had just never been even in question, really, because there's nothing to defer to.

[00:13:34] Speaker 03:
So we say de novo review.

[00:13:36] Speaker 03:
Then what?

[00:13:39] Speaker 03:
Can we decide it, or it needs to be remanded?

[00:13:41] Speaker 03:
What's your view on that?

[00:13:43] Speaker 04:
I think at that point, it needs to be remanded, because then it's an application of the correct standard of review

[00:13:48] Speaker 04:
to whether the reasons or bases are adequate, which is a mixed law fact question that this court has said.

[00:13:55] Speaker 04:
It doesn't do that part, which is fair, because there's a lot of facts involved in it.

[00:14:02] Speaker 04:
So what would be great here would be just to say, look, this is how this is done.

[00:14:06] Speaker 04:
It's your job to look at this directly.

[00:14:10] Speaker 04:
It also says under 7261A1 that you just do this.

[00:14:14] Speaker 04:
You're not going to be deferring to the board on whether the board made sense.

[00:14:17] Speaker 04:
You just decide for yourselves, de novo.

[00:14:21] Speaker 03:
I want to understand what you're saying.

[00:14:23] Speaker 03:
So you're saying that the explanation, I think one of the things you said, that the explanation that there's other jobs available that he could do is not sufficiently substantiated.

[00:14:31] Speaker 04:
That was part of our argument below, yes.

[00:14:35] Speaker 03:
So just trying to think ahead, is it your view that on de novo review,

[00:14:44] Speaker 03:
There has to be an analysis of how they came to the idea that there were other jobs available.

[00:14:49] Speaker 03:
We believe that- For apologizing to the social security.

[00:14:51] Speaker 04:
Right, right.

[00:14:53] Speaker 04:
No, we believe that under de novo review, there's at least a pretty good chance that it would look different, especially because there's such a gulf between the court's decisions on reasons or basis adequacy versus the court's decisions on clear error.

[00:15:09] Speaker 04:
I can't say here today exactly what the court would have done differently, because starting from the wrong standard of review just reshapes the entire way that you look at the entire case before you.

[00:15:21] Speaker 04:
But at the same time, I'm in my rebuttal time.

[00:15:24] Speaker 01:
You are not in your rebuttal time.

[00:15:26] Speaker 01:
You have used your rebuttal time.

[00:15:28] Speaker 04:
I did that again?

[00:15:29] Speaker 04:
I did that last time I was here.

[00:15:31] Speaker 01:
We will give you two minutes for rebuttal.

[00:15:32] Speaker 04:
Thank you.

[00:15:33] Speaker 04:
I'm so sorry, Your Honors.

[00:15:34] Speaker 04:
Thanks.

[00:15:35] Speaker 04:
All right.

[00:15:36] Speaker 01:
Just have a seat.

[00:15:43] Speaker 00:
Morning, Your Honors, and may it please the Court.

[00:15:45] Speaker 00:
I want to start first addressing Judge Prost's question about what exactly was argued below.

[00:15:51] Speaker 00:
So Mrs. Hughes, before the Veterans Court, made four arguments.

[00:15:56] Speaker 00:
You can see these in the table of contents for her brief on page 116, and it's also summarized in the Veterans Court decision on page 11.

[00:16:03] Speaker 00:
But the arguments were that the decision was based on mere speculation.

[00:16:08] Speaker 00:
that it relied on newly developed facts, that the board took notice of extra record facts, and that the opinion or the decision was derived from the board providing its own expert opinion.

[00:16:22] Speaker 00:
None of those arguments are about the adequacy, that is, whether there was sufficient detail in the board's decision.

[00:16:31] Speaker 00:
All of those arguments are about the substance

[00:16:35] Speaker 00:
So the board had a very lengthy 10, 11 page explanation of why it made the determination that it did that Mr. Hughes was not entitled to TDIU earlier.

[00:16:47] Speaker 00:
These arguments are based on the contents, whether they relied on the wrong facts, extra facts.

[00:16:56] Speaker 00:
That goes to the substance, and I did not hear any dispute from my friend on the other side that the substance can be either clear error if we're looking at facts,

[00:17:07] Speaker 00:
or de novo if we're talking about a legal error.

[00:17:11] Speaker 00:
But that's an entirely different question than the adequacy of the reasons or vices, which is basically whether those reasons are sufficiently clear and detailed for a claimant to make an informed decision, either as to whether to seek judicial review and for that later judicial review for the court to have enough information in front of it

[00:17:36] Speaker 00:
to determine whether there was any error in the board's decision.

[00:17:41] Speaker 00:
We actually don't dispute that that part when we're talking about adequacy in terms of

[00:17:49] Speaker 00:
whether there's sufficient information in the decision to understand it, we don't dispute that that should be something like a de novo review.

[00:17:58] Speaker 00:
Our dispute here is that that question is not raised by this case, because in this case, the Veterans Court

[00:18:07] Speaker 00:
saw the arguments that Ms.

[00:18:09] Speaker 00:
Hughes raised as not going to the adequacy, but rather going to the substance, the facts, perhaps the application of law to facts.

[00:18:19] Speaker 00:
And it treated it as such.

[00:18:21] Speaker 00:
So the standard of review for the adequacy of reasons are based, these never came up here.

[00:18:29] Speaker 02:
The problem seems to me that this word adequacy is kind of fluid.

[00:18:35] Speaker 02:
And so when you use adequacy, it opens up, without further explanation, it opens up the door, because any challenge, a regular challenge to the facts or to the application of law to facts could also be turned by someone to be the decision was inadequate, the analysis was inadequate, because they disagree with the conclusion.

[00:18:57] Speaker 02:
I don't know about that.

[00:19:00] Speaker 00:
I understand what you're saying.

[00:19:01] Speaker 00:
It's a tricky word to try to use, especially here when we have two parts.

[00:19:06] Speaker 00:
The statute itself doesn't use that language.

[00:19:09] Speaker 00:
7104D says, each decision of the board shall include a written statement of the board's findings and conclusions, and the reasons are basis for those findings and conclusions.

[00:19:19] Speaker 00:
on all material issues of fact and law presented on the record.

[00:19:23] Speaker 00:
So it doesn't use that word.

[00:19:24] Speaker 00:
That's a judicially derogatory word.

[00:19:26] Speaker 02:
Well, the cleanest case is if the board just said nothing about it.

[00:19:29] Speaker 02:
Right.

[00:19:30] Speaker 02:
That's the cleaner case where you've got to remand because they've got clearly, and that's de novo.

[00:19:35] Speaker 02:
That would be de novo.

[00:19:36] Speaker 02:
If we're looking at it, we're saying, was there any reason or basis given?

[00:19:40] Speaker 02:
The harder case is a little more than that, the so-called inadequacy, like they said

[00:19:47] Speaker 02:
three sentences, but it really didn't deal with it.

[00:19:50] Speaker 02:
I'm having a hard time with that second class, where they said something, but we say under a de novo review that this wasn't adequate.

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

[00:20:01] Speaker 00:
So that is on the Veterans Court to determine in that first step.

[00:20:07] Speaker 00:
It's just about if there's enough information, period, to determine what they said, as opposed to the substantive

[00:20:17] Speaker 00:
content of what they said.

[00:20:20] Speaker 00:
So in your situation, three sentences might be enough if three sentences is all that's required to explain a fairly simplistic concept in a way that someone could understand why the board decided what it did and could decide whether to seek judicial review.

[00:20:39] Speaker 00:
In other instances on a more complicated concept, it might take longer.

[00:20:45] Speaker 00:
I mean, either way, in this case, there was, as I said, an incredibly lengthy discussion by the board on why it determined that TDIU was not warranted.

[00:21:02] Speaker 01:
So you would have us dismiss?

[00:21:06] Speaker 00:
Yes.

[00:21:06] Speaker 00:
Because this issue wasn't raised, we would have this court dismissed for lack of jurisdiction, given that there's no

[00:21:13] Speaker 00:
interpretation of law had an issue here.

[00:21:17] Speaker 00:
Mrs. Hughes admits in her reply brief that she's not raising any of these other questions that are outside the court's jurisdiction, such as whether the reasons or races themselves were adequate, those kind of questions.

[00:21:28] Speaker 00:
So there's really no question here within this court's jurisdiction.

[00:21:33] Speaker 02:
In other words, it's a chill.

[00:21:34] Speaker 02:
Anything we're reviewing here under the argument she made involved a question of law to fact or question of fact?

[00:21:40] Speaker 03:
Yes.

[00:21:42] Speaker 03:
Is it helpful to say the review would be de novo if the issue were raised here?

[00:21:49] Speaker 00:
Well, that, Your Honor, would amount to an advisory opinion.

[00:21:52] Speaker 00:
Because if the issue is not raised, if it's not relevant to the decision below, then there's no reason for this court to appoint.

[00:22:00] Speaker 02:
Have we ever said that in any of our opinions?

[00:22:03] Speaker 00:
Said what, specifically?

[00:22:04] Speaker 02:
Said it's de novo.

[00:22:05] Speaker 02:
We review the question of whether or not there was adequate reasons and basis de novo.

[00:22:10] Speaker 03:
Not that I'm aware of, Your Honor.

[00:22:12] Speaker 03:
Because you're acknowledging that's the right standard.

[00:22:14] Speaker 03:
And she's saying that the problem is that there's no standard.

[00:22:20] Speaker 03:
She's making the argument it's not so much an advisory opinion as it is a recognition that it would be de novo review.

[00:22:29] Speaker 03:
But we're finding on the facts of this case that we don't reach that.

[00:22:36] Speaker 03:
You think that's purely advisory opinion?

[00:22:39] Speaker 00:
Right, because it's not reached on this case.

[00:22:41] Speaker 00:
It's not an issue where the Veterans Court conducted that review or really applied any standard.

[00:22:49] Speaker 00:
Now, I mean, we will say that fundamentally, the Veterans Court at Leets needs to think about whether there was adequacy before they go on and actually review the substance for clear error or other errors of law.

[00:23:06] Speaker 00:
So it's kind of fundamental.

[00:23:08] Speaker 00:
There's nothing requiring the Veterans Court to write out in detail.

[00:23:13] Speaker 00:
We have applied X standard.

[00:23:16] Speaker 00:
We have determined that the reasons our bases are adequate in the sense to permit an understanding of what happened and to then go on and analyze the factual and legal determinations.

[00:23:29] Speaker 00:
If there's no question about that first step of advocacy, the Veterans Court doesn't really need to go into detail on that.

[00:23:38] Speaker 03:
Because I think I can make an argument that those four things that you listed out, that they do implicate issues of insufficient reasons for the decision.

[00:23:55] Speaker 00:
Again, this sort of sufficiency adequacy gets a little bit mixed up.

[00:24:00] Speaker 00:
You know, the reasons that I listed those four reasons are about the facts and whether the facts that the board reviewed support its determination and also whether it improperly looked at facts that it shouldn't have looked at.

[00:24:20] Speaker 00:
And to me, that's all factual determination or perhaps an application of the law to the facts.

[00:24:26] Speaker 00:
But it's not really about was this enough in here to understand what was going on.

[00:24:33] Speaker 00:
It's saying we understood what was going on, but we think that it was based on information that the court should have considered, such as extra record facts, providing its own expert opinion,

[00:24:47] Speaker 00:
you know, speculating about what jobs were out there as opposed to looking to what jobs were out there.

[00:24:54] Speaker 00:
I mean, all of that is kind of about not whether there was enough information in the board's decision, but whether the board's ultimate conclusion was correct, because the argument is that it was based on all these incorrect things that it shouldn't have been looking at.

[00:25:11] Speaker 01:
Anything further?

[00:25:12] Speaker 00:
Nothing, Your Honor.

[00:25:13] Speaker 01:
Thank you.

[00:25:16] Speaker 01:
Thank you.

[00:25:16] Speaker 01:
Clements has two minutes.

[00:25:19] Speaker 04:
Thank you so much for those two minutes, Your Honor.

[00:25:24] Speaker 04:
OK, so the secretary agrees that when you're reviewing the adequacy of reasons or bases, when the Veterans Court is reviewing the adequacy of reasons or bases, they should do so de novo.

[00:25:35] Speaker 04:
This decision would not be an advisory opinion, because actually, unusually here, the court was incredibly clear about what standard of review it was going to apply to reasons or bases.

[00:25:46] Speaker 04:
Furthermore, the review for an error in the board's statement of reasons or bases is that of clear error and not a de novo review.

[00:25:51] Speaker 04:
And then in its section, it had a whole section on adequacy of reasons or bases.

[00:25:56] Speaker 04:
And the reason why it had that section is because we absolutely did argue that below.

[00:26:01] Speaker 04:
We argued the legal questions first.

[00:26:03] Speaker 04:
We argued a number of different ones because, again, we didn't know what the board had done.

[00:26:07] Speaker 04:
And so we kind of wanted to respond to a number of different possibilities because it wasn't clear to us what the board had done, which was why

[00:26:14] Speaker 04:
We also have the reasons or bases argument there at the end, which is why the court then addressed it.

[00:26:20] Speaker 04:
And in addressing it.

[00:26:21] Speaker 01:
If their standard is, as you just said, clear error, doesn't that tell us that it's fact, and therefore when it comes to us, it's application of law effect?

[00:26:34] Speaker 04:
I think that that's sort of putting the carpet before the horse.

[00:26:37] Speaker 04:
I think that if we had a situation here where the court was supposed to be using clear error, then that's absolutely true.

[00:26:45] Speaker 04:
But if the court just looked at something under clear error that was not supposed to be looked at under clear error, then that in itself is a legal error.

[00:26:53] Speaker 04:
And so that is what brings it before this court rather than being too fact heavy.

[00:27:00] Speaker 04:
Because again, the facts here really don't matter.

[00:27:02] Speaker 04:
This is a decision.

[00:27:03] Speaker 04:
I mean, it will, obviously, back below again.

[00:27:06] Speaker 04:
But this is a situation where the court several times said, we didn't show clear error in the reasons or bases.

[00:27:13] Speaker 04:
that we showed a plausible basis in her discussion of reasonable basis.

[00:27:16] Speaker 01:
You just said the facts don't matter.

[00:27:18] Speaker 01:
Ultimately, this is a case about a fact, whether this person was capable of going to employment.

[00:27:24] Speaker 04:
That is true.

[00:27:25] Speaker 04:
That is true.

[00:27:26] Speaker 04:
That is not for this court to decide.

[00:27:29] Speaker 04:
And in many ways, it's not even the CABC's decision to decide if they don't have enough information to do that.

[00:27:37] Speaker 04:
That was on the board.

[00:27:39] Speaker 04:
It may seem strange that we bring these reasons or bases arguments when there's a lot of discussion.

[00:27:44] Speaker 04:
But if we feel like there's logical bridges that have not been connected, we argue reasons or bases.

[00:27:49] Speaker 04:
And the court often agrees with us, because the board will say something, but it's still not totally clear how that happened.

[00:27:56] Speaker 04:
And I apologize.

[00:27:56] Speaker 04:
I'm out of time again.

[00:27:57] Speaker 01:
Thank you, counsel.

[00:27:59] Speaker 01:
Case is submitted.

[00:28:00] Speaker 04:
Thank you.