ATILANO v. MCDONOUGH
Oral Argument — 04/06/2021 · Case 20-1579 · 41:49
0:01
Judge Taranto
The United States Court of Appeals for the Federal Circuit is now open and in session.
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God save the United States and this honorable court.
0:10
Judge Lourie
Good morning, ladies and gentlemen.
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We have four cases on the calendar this morning.
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A veteran's case, a case from the PTAB, a case from the district court, and an employee case from the MSPB.
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The latter will not be argued and will be submitted on the briefs.
0:29
The first case is Atalano v. McDonough, 2020, 1579.
0:37
Mr. Raven, please proceed.
0:41
Appellant Attorney (Sean A. Ravin)
Thank you, Your Honor.
0:43
May it please the court, good morning.
0:45
Sean Raven appearing for the veteran, Mr. Jesus Atalano.
0:48
The issue before the court is whether the Veterans Court properly interpreted 38 U.S.C. Section 7107B
0:54
to require that an appellant personally appear and participate in a hearing before the Board of Veterans' Appeals.
1:00
Mr. Jesus Atalano.
1:02
He is a veteran with honorable act of service to include service in Vietnam.
1:05
At the time of his scheduled hearing in 2016, Mr. Jesus Atalano was service-connected for post-traumatic stress disorder,
1:13
which the Department of Veterans Affairs rated as 70% of savings.
1:17
Judge Lourie
Mr. Raven, this is Judge Lurie.
1:20
Let's look at the statute.
1:21
You cited B, but there's also E, E2.
1:28
As the chairman may afford the appellant an opportunity to participate in a hearing,
1:33
through the use of facilities and equipment in lieu of a hearing held by personally appearing.
1:40
And that would suggest that personally appearing is the default requirement,
1:46
and that that is underlined by looking at the regulation that says a hearing will not normally be scheduled
1:54
solely for receiving an argument by a representative.
2:00
Why don't we defer?
2:03
To the agency interpreting its own statutes.
2:09
Appellant Attorney (Sean A. Ravin)
Your Honor, deference is appropriate only if the plain language of the statute is ambiguous.
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And in this case, the plain language of 38 U.S.C. Section 7107B is simply that a hearing must be afforded to the appellant.
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And I'm sorry.
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The Board shall decide any appeal only after affording the appellant an opportunity for a hearing.
2:40
The section of the statute that you are referring to actually involves logistical management.
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It only talks about how a hearing is to be conducted and how a calendar is to be conducted.
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Hearings have to be held somewhere.
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They have to be held either in person or they have to be held electronically.
2:58
Judge Lourie
But that helps to construe what the word appellant means.
3:05
Sure.
3:05
Actually, we all know that most litigants are represented by counsel.
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But this is a case where the agency has a statute and can make its own rules.
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And so E does more, doesn't it, than just deal with facilities and equipment?
3:27
Appellant Attorney (Sean A. Ravin)
Your Honor, I would disagree with that and say respectfully that that is purely about logistical management.
3:34
Consider that Mr. Atalano is just severely displeased.
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He's a disabled veteran.
3:37
The plain reading of the statute allows all veterans to have hearings,
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regardless of whether or not they're capable of appearing themselves.
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The reading of the statute, as interpreted by the Veterans Court,
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would basically prevent any veteran who is disabled, severely disabled,
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and unable to personally appear and participate,
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would basically prevent them from having the hearing,
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from having the opportunity.
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And so E does more, doesn't it, than just deal with facilities and equipment?
4:10
And that's what I was getting to in the introduction,
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is that Mr. Atalano was rated as 70 percent disabled for a psychiatric disorder.
4:19
And such a disability rated under 30 CFR 4.130 diagnostic code 9411
4:26
clearly indicates how severe this disability is.
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And in the reply brief, I clearly indicated what Dr. Trippi found in her report
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or that Mr. Atalano suffers from memory loss, short and long-term memory loss,
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has impaired concentration, his mind wanders easily.
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So, in effect, the interpretation by the Veterans Court would basically prevent disabled veterans from having hearings.
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If you must actively participate and be present at a hearing,
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you're basically preventing anyone who's bedridden physically
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or anyone mentally who is incapable of assisting counsel
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or even being competent to testify from holding a hearing and introducing sworn testimony from witnesses,
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whether it's an expert witness like a doctor or a lay witness, like a buddy or even a family member.
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These are so important.
5:24
It's so important.
5:26
It's an opportunity to present to the veterans law judge.
5:34
Judge Taranto
Mr. Raven, this is Judge Taranto.
5:37
Can I just ask you this?
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Assuming that the term appellant just means the party
5:46
and doesn't really answer the question of what is supposed to happen at the hearing,
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and it just says an opportunity for a hearing,
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why isn't it left to the agency to determine which, in various circumstances,
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of three possibilities?
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Well, there are a number of possible things that could happen at a hearing.
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This hearing is to do.
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One is to provide testimony from the claimant as a witness.
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A second is testimony from other witnesses.
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And the third is argumentation of a legal sort from a representative.
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Why isn't that left to the agency?
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Appellant Attorney (Sean A. Ravin)
Well, the agency is promulgating regulations
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to interpret the claimant as a witness.
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They're not going to interpret the statute.
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But the plain meaning of the statute indicates that an appellant has the right to a hearing.
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The way that the secretary has interpreted it, if you notice, there is no B.
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There's only the appellant appearing personally for the hearing and C,
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which is the appellant's representative under the statute.
7:00
Presumably, you're looking at the section of 20.700 that allows the VA
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or allows the board to hear argument, which is not evidence, which is not testimony.
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The secretary clearly has the right to promulgate regulations,
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but the argument is that the Veterans Court improperly interpreted the statute.
7:19
Judge Taranto
Can I ask you this?
7:22
Do you get any benefit out of the history,
7:27
some of which I think is recited in the Veterans Court's opinion in Cook,
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which I think says something about Congress when it wrote 71,
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07B said it was codifying a regulation that was in place at the time
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and the regulation in place at the time perhaps made clear by its terms
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that the hearing was for argument, was for testimony or argument,
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which would maybe tend to suggest that the personal presence of the veteran was not.
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Appellant Attorney (Sean A. Ravin)
I would agree with you.
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And I think that,
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and Congress felt that it was so important that veterans have the right to have a hearing
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to submit testimony, sworn testimony from witnesses as well as from themselves
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if they wish to appear, that they codified it.
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And I agree with what you're saying about the history being beneficial
8:29
and demonstrating that the Veterans Court interpretation is erroneous.
8:33
Judge Stoll
Mr. Raven, this is Judge Stoll.
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I mean, following up on this same line,
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do you think that the definition of hearing in the agencies,
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regulations, that's at 38 CFR 20, is helpful to you?
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It says, hearing on appeal is defined as a hearing conducted after a notice
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of a disagreement has been filed in which testimony is presented concerning the determination
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or determinations by the agency of original jurisdiction being appealed.
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It doesn't identify, for example, whose testimony it's talking about.
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Appellant Attorney (Sean A. Ravin)
I think that that would be.
9:14
That would be helpful.
9:14
And it certainly would be helpful to demonstrate that the veteran's personal appearance
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and personal participation was not required.
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The whole purpose of the hearing is to list the testimony.
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And that's clearly in the Secretary's regulations.
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And that's at 20.700B, purpose of a hearing.
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The purpose of a hearing is to receive argument and testimony.
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Judge Taranto
Mr. Raven, what do you do with 20.702D,
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which I think...
9:44
It says that if you ask for a hearing and without advance notice you don't show up,
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the board, yes, the board will deem the request withdrawn and will cancel it.
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Appellant Attorney (Sean A. Ravin)
20, that's clearly logistical management.
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If no party show up, and it's very common at the board
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and the central office in Washington, D.C.,
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for people to request, for persons to request a personal hearing
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and then not show up on the day of the hearing.
10:15
I think that it was almost like 90%.
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90% of people who request hearings never show up.
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And in that case...
10:22
Judge Taranto
I'm sorry, nobody shows up or just the veteran doesn't show up?
10:28
Appellant Attorney (Sean A. Ravin)
No, I would say, I've done this on the statistics, obviously.
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This is not a part of...
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This is only anecdotally.
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We're counsel to provide testimony.
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I've seen that I've gone through my time.
10:51
Judge Stoll
I would like to ask a question, which is,
10:58
I know that you put a lot of stock into saying that the appellant is not the client.
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I'm not sure who you think the appellant is other than the claimant.
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I wanted to ask, so the one concern I have with that, among others,
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is that the regulation that I cited to you about the definition of a hearing
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also defines the appellant, for example,
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and says it's a claimant who has filed an appeal
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and it defines also a claimant as a person who has filed a claim.
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I mean, it seems pretty darn clear that, you know,
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the appellant doesn't include the appellant's attorney.
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What were you thinking appellant meant?
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Were you thinking that it included the attorney,
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or was it something more nuanced than...
11:44
Appellant Attorney (Sean A. Ravin)
Your Honor, when the term appellant is used,
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I think it's used interchangeably to mean both the person,
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like Mr. Jesus Atalano, as well as his representative.
11:54
If you were to look at 38 U.S.C. Section 7107-D1,
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in effect at the time of the hearing back in 2016,
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that provision says an appellant may request that a hearing before the board
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be held at its principal location or at a facility of the department
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located within the area served by a regional office of the department.
12:15
Surely, that doesn't mean only Mr. Jesus Atalano, Mr. Atalano,
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could request that.
12:21
Judge Stoll
Well, you said the attorney.
12:23
May I interrupt you?
12:24
I think what it means is that the attorney can request on the appellant's behalf
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and that your argument might be that the attorney may be present
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at the hearing.
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At the hearing on the appellant's behalf,
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but not necessarily that the appellant should be defined to include the appellant's attorney.
12:43
Appellant Attorney (Sean A. Ravin)
I would just point out that the way that the statute is written,
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I think it's consistent to say appellant means both the attorney and the attorney's...
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the appellant personally and the appellant's representative.
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Judge Stoll
I respectfully agree with that,
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but let me ask you one more question, which I think is pretty important.
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I read the...
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the Veterans Court's decision to rest on two independent bases.
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One is that Section 7107 is unambiguous and requires Mr. Atalano to have been at the hearing.
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And you do clearly challenge this on appeal.
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But there's a second alternative basis that starts at page A9 of the record.
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And they...
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the Veterans Court says, assuming Section 7107 is ambiguous and Chevron deference applies,
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the...
13:37
the agency regulations reasonably require that Mr. Atalano attend the hearing.
13:41
I don't see in your briefs where you've challenged this part...
13:46
this part of the Veterans Court's holding on appeal.
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Can you address that?
13:52
And if you think you have challenged this part of the Veterans Court's decision,
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could you show me where that is in your blue brief?
14:01
Appellant Attorney (Sean A. Ravin)
Your Honor, I did not challenge that.
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I did not challenge the argument that Chevron deference...
14:07
would require deference to the Secretary's regulations.
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And the reason for that is I just...
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is that Mr. Atalano's position is that the plain language of the statute is clear.
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It clearly requires the appellant, including the appellant's attorney,
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to present testimony, whether from the appellant or from the appellant's witnesses.
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And the court did not...
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the Veterans Court...
14:28
the Veterans Court's decision is not based on Chevron deference.
14:31
It's based on the plain meaning of the statute.
14:34
Judge Stoll
So, hypothetically, if I were to disagree with you on that,
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and I were to think that it were ambiguous,
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then you have not challenged the Veterans Court's decision.
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Appellant Attorney (Sean A. Ravin)
I have not challenged that alternative or that,
14:50
because that wasn't the basis for the Veterans Court's decision.
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It's...
14:55
And I respectfully would say that...
14:56
Judge Stoll
It's an alternative.
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It says any alternative.
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That's their alternative holding.
15:02
Appellant Attorney (Sean A. Ravin)
I understand, and I respectfully would argue that it's a plain meaning.
15:09
And it's the issue of the plain meaning.
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I did not get into Chevron.
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I did not get into Chevron deference,
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simply because I understand that it's very, very difficult for...
15:19
to demonstrate that there's...
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under the standard to show that deference shouldn't be according to the Secretary.
15:27
Judge Stoll
Thank you.
15:31
Judge Lourie
Thank you, Mr. Raven.
15:34
You've essentially consumed your time answering questions,
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but we'll give you three minutes back for rebuttal.
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Ms. Bitt.
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Appellee Attorney (Sosun Bae)
May it please the court.
15:49
We request that this court affirm the decision of the Veterans Court,
15:52
importantly, and as Judge Stoll pointed out,
15:56
the Veterans Court had two alternative bases for its finding.
16:00
And I think what's key here is that even if this court determines,
16:04
in contrast to the Veterans Court,
16:06
that the statutory language does not unambiguously favor the Veterans Court's interpretation,
16:13
the regulations nonetheless make clear that Mr.
16:16
Adelano was present or required to be present at his own hearing,
16:20
at least in the absence of a prior good governance.
16:22
And I think it's important to note,
16:30
as Judge Stoll just noted,
16:32
that Mr.
16:33
Adelano is not challenging that the VA Regulation 20.700 is a permissible construction of the statute,
16:43
should the court read it to be ambiguous.
16:45
And this is especially important because Section 7105 does explicitly delegate authority to the Veterans Court.
16:52
And I think it's important for the VA to prescribe regulations regarding hearing and representation rights.
16:58
Judge Taranto
Ms.
17:00
Bay, this is Judge Taranto.
17:02
I wouldn't have thought,
17:04
actually,
17:04
that the 700 Regulation actually answers the question,
17:08
but why doesn't the 702 answer the question?
17:12
Appellee Attorney (Sosun Bae)
Your Honor,
17:13
Judge Taranto
Just to try to be clear about the first part,
17:18
I don't see anywhere in 700 that says,
17:23
if you do not ask,
17:25
if you do not appear personally,
17:27
you shall not get a hearing.
17:29
I don't think words with that meaning ever appear,
17:35
including in 700 ,
17:37
which says,
17:39
if you appear,
17:41
you get one.
17:42
But if is different from only if.
17:45
Appellee Attorney (Sosun Bae)
Yes,
17:46
Your Honor,
17:47
I agree and understand.
17:48
And I think that reading 700 and 702 both lead to a question,
17:54
a clear understanding that Mr.
17:57
Adelano would have been required to attend his hearing,
17:59
at least in the absence of good cause.
18:01
And the reasons are as following.
18:03
For one,
18:04
Mr.
18:05
Adelano states that the statute does not,
18:09
well,
18:10
he states that the statute clearly does not require an appellant to show at his own hearing.
18:15
But in that case,
18:16
he is conflating or combining appellant and appellant representative into the word appellant.
18:22
And again,
18:22
I think at best,
18:23
the word appellant would be ambiguous,
18:26
even though I agree with Judge Stull,
18:29
who was pointing to the definitions that appellant does appear to refer to the veteran or claimant.
18:33
But the regulation itself in subsection 700 and sprinkled throughout part 20 of the regulations does actually make a very clear distinction between an appellant and an appellant's representative.
18:48
Therefore,
18:49
undercutting Mr.
18:51
Adelano's arguments,
18:51
that the appellant can encompass the representative,
18:54
subsection A,
18:55
subsection D of 700,
18:58
distinct what is the appellant.
19:01
Judge Taranto
I'm hearing what you're saying is not really answering my question.
19:05
The appellant is,
19:07
is context.
19:11
The party is always a natural person.
19:13
And so it's the party.
19:14
If,
19:15
if you said appellant in the federal rules of appellate procedure,
19:18
it could be a corporation and the corporation would never have to appear personally.
19:22
So I,
19:24
I'm not quite sure.
19:25
And,
19:25
and lawyers rep or representatives represent their parties.
19:29
And there's lots of language in all kinds of legal context that says the appellant argues,
19:34
well,
19:34
the appellant may never have even read,
19:36
read the pleading or the brief.
19:38
You mean the representative is speaking on behalf of the party.
19:42
So I,
19:42
I'm just not sure how much mileage one gets out of a dispute about the meaning of the appellant.
19:49
It's plainly the claimant who is the party.
19:52
But then the question is,
19:54
where do the regulations say that person must appear in person at the hearing?
20:02
Unknown
Um,
20:05
Appellee Attorney (Sosun Bae)
the regulation does not say that that person must appear in person,
20:09
but it does state in subsection B is that the purpose of the hearing is to receive not just argument,
20:15
but testimony,
20:16
and that it is contemplated that the appellant and witnesses,
20:20
if any,
20:20
will be present.
20:21
And that accords with,
20:23
um,
20:23
section seven,
20:24
one Oh seven,
20:25
um,
20:25
E,
20:26
which talks about the appellant personally appearing.
20:28
So I think between seven,
20:30
one,
20:30
Judge Taranto
I'm not,
20:31
I'm not quite sure what to do with this language of it is contemplated that,
20:36
um,
20:36
the,
20:37
the,
20:38
um,
20:39
veterans court first said that the statute unambiguously requires the appearance.
20:44
And let's put that aside,
20:46
um,
20:46
from an appearance in the sense of personal preference,
20:50
prep presence of the individual.
20:52
And then the regulations say,
20:55
well,
20:55
um,
20:56
sometimes,
20:57
Unknown
um,
20:58
Judge Taranto
we're not going to have it if you don't appear,
21:01
but where,
21:03
where does the regulation say,
21:05
if you do not appear,
21:07
and this is,
21:08
I think what the second part of the veterans court opinion seems to say,
21:13
and maybe the board said,
21:15
um,
21:16
that we just have a rule.
21:17
If you don't appear,
21:19
you are not entitled to have any kind of hearing,
21:22
including for the other two purposes,
21:24
argument from a representative or non-party witness,
21:28
um,
21:29
testimony.
21:31
Appellee Attorney (Sosun Bae)
Your honor.
21:31
I think that the board decision actually,
21:34
um,
21:34
I don't,
21:34
I think the veterans court,
21:36
um,
21:37
it may be brushed over the issue of the good cause issue,
21:40
um,
21:41
holding,
21:41
I think just that Mr.
21:43
Adelano had not even established good cause.
21:45
So it sort of didn't matter in that case,
21:47
but the board,
21:48
I think did state in its decision that if an appellant had shown good cause,
21:53
um,
21:53
in advance for why he not appear or why he could not appear,
21:57
I think in,
21:58
um,
21:58
accordance with 700 B and seven Oh two D that,
22:02
um,
22:02
the hearing may,
22:03
may have been able to go on.
22:04
So I,
22:05
I think the board did address that.
22:07
And so I,
22:08
I think that our reading of 700 B,
22:11
especially taken in conjunction with seven Oh two D,
22:14
which your honor is cited,
22:15
um,
22:16
contemplates basically that the appellant is expected to be present.
22:20
I,
22:20
I understand your honors,
22:21
um,
22:23
that it's not an only if,
22:24
but that the appellant is expected to be present,
22:26
but there is,
22:27
um,
22:28
I,
22:28
I don't know what the exact term is.
22:30
Exception will go room,
22:32
um,
22:32
regarding that there may be good cause,
22:35
um,
22:35
that could be shown for the appellant not being present and that a hearing
22:39
will not normally be scheduled solely for the purpose of receiving argument.
22:43
Um,
22:44
and maybe,
22:45
um,
22:45
for the appellant not to be there,
22:47
but there,
22:47
there does seem to be some space in the regulation for situations where an
22:52
appellant has demonstrated,
22:53
uh,
22:53
good cause,
22:54
but here,
22:55
Mr.
22:55
Adelano,
22:56
um,
22:56
it's undisputed that Mr.
22:57
Adelano never showed good cause before the hearing,
23:00
despite the board's,
23:02
I think,
23:02
multiple attempts.
23:03
Judge Lourie
This is judge Laurie.
23:06
Um,
23:07
I,
23:07
I,
23:08
I saw it argued that the board has limited resources and wants to,
23:14
uh,
23:14
uh,
23:15
ration them to,
23:16
um,
23:17
uh,
23:18
uh,
23:19
to deal with people who are going to show up and argue,
23:22
uh,
23:23
and contribute to the argument of their cases.
23:25
Um,
23:26
uh,
23:27
are there any data in the record,
23:29
uh,
23:30
to show what,
23:32
what percent of appeals have hearings and what don't,
23:37
so that we might have a feeling for how scarce the resources are and whether
23:43
that's really a relevant consideration.
23:45
Oh,
23:46
Appellee Attorney (Sosun Bae)
your honor.
23:47
I'm not sure that there is any data in the record that,
23:50
that shows what percentage,
23:52
um,
23:52
of,
23:54
um,
23:55
of board appeals go to a hearing,
23:57
but I,
23:58
I think that the board,
23:59
um,
24:00
to my understanding at least does act in accordance with seven Oh seven B,
24:04
which says that the board will essentially afford the appellant an opportunity for hearing.
24:09
Um,
24:10
and so I,
24:11
I would expect that appellants who request hearings and that,
24:14
that seems to be what happened in this case will be given the opportunity for a hearing
24:18
as,
24:19
as Mr.
24:19
Adelano was.
24:20
And in fact,
24:23
this is something that we've been discussing multiple times.
24:23
And I think the veterans court also does talk about,
24:26
and this is,
24:27
um,
24:27
I,
24:28
I think sort of sideways to your honors question that,
24:31
um,
24:32
at least in terms of numbers and percentages,
24:35
the veterans court cited to,
24:37
um,
24:38
the cook case,
24:39
um,
24:39
which had a good bit of legislative history,
24:42
talking about the purpose of a board hearing and that hearing from the,
24:45
and that giving the board member the opportunity to personally interact with the appellant was the purpose of the board hearing.
24:52
And actually did lead to a larger percent.
24:55
Judge Stoll
Ms.
24:56
Bay,
24:56
I thought that when I read that opinion,
24:57
I thought it said that the purpose of the hearing was to give the veteran an opportunity to present his case live before the board.
25:04
And there was also some discussion about how,
25:06
uh,
25:07
statistically,
25:07
uh,
25:08
your chances of success seem to increase when you have an opportunity to present live witnesses,
25:13
not just the veteran.
25:14
Um,
25:15
I,
25:15
I did not read it as you are saying it was for the purpose of the board to be able to ask questions of the veterans.
25:21
Appellee Attorney (Sosun Bae)
Your honor.
25:23
Um,
25:23
I was taking from the quotation from the cook case where I think the statistics your honor is referring to states that an apparent appellant's personal appearance before the board makes a significant difference in achieving favorable resolution of the claim.
25:38
And I was,
25:38
we were reading that to state that the appellant personally being there before the board was what made the difference.
25:44
And,
25:45
um,
25:45
it,
25:46
it does also,
25:47
um,
25:47
quote from the Arneson case,
25:49
which states that it's the veterans.
25:51
And,
25:52
that the appellant has the opportunity to personally address those who will find facts and make credibility determinations.
25:57
And that,
25:58
um,
25:58
the board is the hearing is also so that the board can,
26:01
um,
26:02
give claimants the information necessary for the development of their claims.
26:06
And I,
26:06
I know it's,
26:07
it's not in our group,
26:08
but I,
26:08
so next question is,
26:10
is,
26:10
Judge Stoll
uh,
26:11
get here.
26:11
Mr.
26:12
Atulano since 2010 has had a 70% disability rating for PTSD.
26:17
And I believe a TDIU.
26:19
Um,
26:22
can that be good cause for why he doesn't have to appear in court personally,
26:27
and instead could be represented by his counsel?
26:31
Appellee Attorney (Sosun Bae)
Well,
26:31
your honor.
26:32
Um,
26:32
first I would state that I think that that's a factual question,
26:35
but secondly,
26:36
um,
26:37
I don't think we ever have stated or argued,
26:39
and I don't think the veterans court has ever stated or argued that Mr.
26:43
Um,
26:43
Atulano's TDIU or 70% disability could never be good cause or is impact not good cause.
26:50
I think that what the veterans court was saying,
26:52
and what the board was saying below that is that Mr.
26:55
Atulano had not shown good cause.
26:57
And
26:57
I,
26:58
I saw that.
27:00
I read that.
27:01
Judge Stoll
I understand.
27:01
But the framework,
27:03
you know,
27:03
maybe the framework that they applied was wrong because they said there wasn't good cause without any explanation of why there wasn't good cause.
27:12
For example,
27:13
you know,
27:13
there,
27:14
they just said no good cause without just lumped him in with five other people who were also by the same counsel.
27:22
Without looking at his individual circumstances and determining whether he had good cause for not being present.
27:30
I don't see any analysis whatsoever of his 70% PTSD and TDIU rating from 2010 in their analysis of good failure to show good cause.
27:44
Appellee Attorney (Sosun Bae)
Um,
27:44
your honor.
27:45
I agree that there was not,
27:46
um,
27:47
a specific factual analysis as to,
27:50
um,
27:50
Mr.
27:50
Atulano's disability level vis-a-vis good cause.
27:53
Of course,
27:53
there wasn't the board decision itself,
27:55
but,
27:56
um,
27:56
I think that both the board and the veterans court were acting,
28:00
um,
28:00
in accordance with the regulation by sort of,
28:03
I think they were stating essentially that Mr.
28:05
Atulano had not shown good cause,
28:07
had not filed or submitted anything.
28:10
It has to show good cause.
28:12
Well,
28:12
in 700 B and,
28:15
uh,
28:16
B basically states that,
28:17
um,
28:18
request for representatives to alone,
28:20
um,
28:20
to personally appear alone may be granted if good cause is shown and whether good cause has been shown will be determined by the presiding member.
28:28
it,
28:29
I,
28:29
I think that the board and the veterans court would have been presuming that the good cause being shown meant that somebody had to make the showing of good cause,
28:37
whether it be the appellant or the representative.
28:40
Um,
28:40
and here,
28:41
again,
28:42
yeah.
28:43
Judge Stoll
What do you make of the,
28:44
uh,
28:45
regulations definition of hearing,
28:47
which is quite broad.
28:48
I mean,
28:49
I,
28:49
I think here that to me,
28:51
the question of who is the appellant only goes so far.
28:56
I don't think that's the right word to focus on here in seven,
28:59
one F seven,
29:00
and a better word to focus on is hearing.
29:02
And,
29:03
um,
29:03
what about how the regulations that defines hearing to include,
29:08
um,
29:10
uh,
29:10
providing the testimony of witnesses?
29:13
Um,
29:13
there's also other regulations that say that a claimant or can be represented by,
29:19
uh,
29:20
a,
29:20
you know,
29:21
an attorney who's,
29:22
you know,
29:23
has certain credentials.
29:24
Um,
29:25
why,
29:26
why isn't that broad definition of hearing also something to be taken into account when looking at the regulations and understanding,
29:34
you know,
29:34
whether these regulations actually contemplate that you're not entitled to a hearing at which your representative would question your expert witness,
29:43
unless you are present with,
29:45
uh,
29:46
personally present as well.
29:48
Appellee Attorney (Sosun Bae)
Well,
29:49
your honor,
29:50
I think that,
29:50
um,
29:51
I don't think that anything in part or subpart 700,
29:54
um,
29:55
is in conflict with the broader definition of the hearing,
29:59
which can include argument and questioning of other witnesses.
30:02
I think that,
30:03
um,
30:05
that,
30:05
uh,
30:05
subsection B of part 700,
30:08
especially in conjunction with,
30:09
as judge Laurie pointed out,
30:11
um,
30:12
subsection E of the statute,
30:13
uh,
30:15
contemplate that the appellant will personally be present.
30:17
However,
30:18
the,
30:18
um,
30:19
regulation also states that other witnesses are contemplated to be present if there are any other witnesses,
30:25
and that it is also for argument.
30:27
So I don't think that the regulation,
30:29
the requirements of the regulation that the appellant is expected to be present,
30:33
um,
30:34
precludes there being argument or argument from the representative and testimony from other witnesses.
30:39
But it does,
30:40
it seemed to center the appellant's presence and,
30:43
uh,
30:43
testimony of the appellant.
30:45
And that,
30:45
I think,
30:45
accords with the history alluded to by the Veterans Court.
30:49
And again,
30:49
here,
30:50
it does even give the caveat that,
30:53
um,
30:53
a hearing can be used just to,
30:55
uh,
30:56
if I may just finish my sentence,
30:57
personally present argument if good cause is shown.
31:00
Sorry,
31:00
Your Honor.
31:01
Matthew,
31:01
no worries.
31:02
Judge Stoll
Yeah,
31:02
I would like,
31:03
we were asking you a lot of questions and appreciate your answers.
31:06
Um,
31:06
I would like one last question.
31:08
Um,
31:09
my,
31:09
my question is,
31:11
um,
31:11
you said earlier,
31:12
you said that the regulation requires good cause,
31:15
uh,
31:16
in order to be able to,
31:17
uh,
31:18
have the,
31:19
uh,
31:20
appellant not present for the hearing.
31:22
But when I look at 20.700 ,
31:25
it seems to differentiate between argument and testimony.
31:29
Good cause seems to only apply to attorney argument.
31:32
When it,
31:33
that sentence about good cause is referring to when there's just going to be attorney argument.
31:40
Do you disagree with that?
31:42
Appellee Attorney (Sosun Bae)
Um,
31:43
the good cause,
31:44
um,
31:46
it says
31:49
Judge Stoll
alone to personally present argument to members of board may be granted if good cause is shown.
31:54
Appellee Attorney (Sosun Bae)
Yes,
31:55
Judge Stoll
Your Honor.
31:56
That doesn't relate to hearings,
31:58
right?
31:58
Where testimony is going to be provided.
32:00
It's just for appearances alone,
32:02
alone to personally present argument as opposed to testimony.
32:07
Appellee Attorney (Sosun Bae)
It does,
32:08
um,
32:09
appear to,
32:10
um,
32:10
be specifically cabined to request by appearances,
32:14
uh,
32:14
by representatives alone.
32:16
But subsection D,
32:18
um,
32:18
regarding informal hearing does in fact,
32:21
um,
32:22
provide for what would normally happen in situations where the appellant cannot or does not wish to appear.
32:28
And that's,
32:29
um,
32:29
informal arguments by audio cassette.
32:31
And so I think that again,
32:33
um,
32:33
buttresses.
32:34
Judge Stoll
It doesn't say anything about whether good cause has to be shown for test show for a hearing involving testimony.
32:39
Subsection D does not,
32:41
right?
32:42
Appellee Attorney (Sosun Bae)
It,
32:42
it does not,
32:43
but it does indicate that if the appellant cannot or does not wish to appear,
32:47
then the recourse is for the authorized representative to present oral argument by audio cassette without personally appearing.
32:55
Um,
32:56
but again,
32:57
I just,
32:57
just to conclude on this,
32:58
I'm of course happy to answer,
32:59
uh,
33:00
Can I,
33:00
Judge Taranto
can I just ask one,
33:01
one,
33:01
one question?
33:02
Um,
33:02
do I understand correctly that the statutory provision and or regulations that are at issue,
33:10
in this case have been superseded in some way by the 2017 act and the 2019 regulations under them.
33:18
And if that's right,
33:19
how much of what we would be deciding in this case would answer the questions under,
33:26
um,
33:27
the superseding,
33:29
uh,
33:30
statutory and regulatory provisions.
33:32
Unknown
Um,
33:33
Appellee Attorney (Sosun Bae)
your honor,
33:33
the,
33:34
my understanding is that a lot of this has been,
33:37
um,
33:37
superseded or at least updated pursuant to the modernization act of 2017.
33:43
Um,
33:44
I,
33:44
I have read the new statute and regulations.
33:47
Um,
33:47
I'm not intimately familiar with them.
33:49
I do believe that they have,
33:52
excuse me,
33:53
your honor,
33:53
at least the statute has made it easier for the appellant to participate in a hearing.
33:58
And interestingly,
33:59
this actually predated the pandemic by allowing the appellant to,
34:03
um,
34:03
participate in the hearing completely remotely.
34:06
So,
34:07
instead of having to go to a VA facility at all,
34:10
um,
34:10
I believe that the new statute allows for the appellant to participate from his home,
34:15
um,
34:15
which would,
34:16
I think,
34:16
take care of at least some of the issues of appellants who are too disabled to appear.
34:21
I,
34:21
I cannot unfortunately speak directly as to whether,
34:24
um,
34:25
like what else specifically is there in the statute and regulation that,
34:29
that could affect Mr.
34:30
Adelano's case.
34:31
But it,
34:31
but there has been,
34:32
um,
34:33
a fair amount of rejiggering and rehaul,
34:36
um,
34:36
of both 7107 and CFR 700,
34:39
your honor.
34:41
Judge Lourie
One,
34:41
one further question is,
34:43
okay,
34:43
doesn't the board's,
34:45
uh,
34:47
um,
34:48
interpretation mean that a disabled veteran doesn't get a hearing?
34:53
Because if,
34:54
if he can't appear,
34:56
he doesn't get a hearing?
34:58
Appellee Attorney (Sosun Bae)
Your honor,
34:59
I,
34:59
I think that,
35:00
um,
35:01
your honor's question is a little bit difficult to answer in just the generic black or black and white yes or no answer.
35:08
I think that it does not,
35:09
if your honor is referring to an appellant who's,
35:12
uh,
35:13
say undisputedly too disabled to participate in the hearing.
35:16
I think that that gets into,
35:18
um,
35:18
a lot of gray area.
35:20
That's unfortunately beyond,
35:21
um,
35:22
what we're dealing with in Mr.
35:23
Adelano's situation.
35:24
I think there are regulations and statutes that otherwise provide for,
35:28
um,
35:29
next friends or fiduciaries to stand in for claimants.
35:33
And I think that would obviously include a whole host of other details and questions,
35:37
which,
35:37
um,
35:38
would be difficult to get into in a hypothetical.
35:40
So that's,
35:40
but that's certainly one avenue for,
35:43
um,
35:43
there being able to be,
35:45
um,
35:45
fact witness testimony at a hearing,
35:47
um,
35:48
where the next friend or fiduciary might stand in for the claimant or appellant.
35:51
Um,
35:52
as far as the sort of other part of your honor's question,
35:56
um,
35:56
I,
35:57
I don't think that that it would still,
35:59
um,
36:00
per se,
36:01
uh,
36:03
eliminate the,
36:04
the ability for hearing,
36:05
um,
36:06
because 700 and,
36:08
um,
36:10
700 B and D do appear to carve out at least exceptions in which,
36:15
um,
36:16
in which,
36:17
uh,
36:18
argument can be presented at a live or videotape hearing by the appellant's representative.
36:23
And,
36:24
um,
36:24
I think the board stated that good.
36:26
Judge Lourie
Thank you,
36:27
Ms.
36:27
Bay.
36:27
I,
36:28
I think we have your answer.
36:30
Um,
36:31
Mr.
36:31
Raven,
36:32
uh,
36:32
we gave a lot of extra time to Ms.
36:34
Bay because we asked questions.
36:36
So you can take your full five minutes for rebuttal if you need us.
36:43
Appellant Attorney (Sean A. Ravin)
Thank you,
36:44
your honor.
36:45
I,
36:46
I would like to just bring two points to the conclusion and rebuttal.
36:49
The first would be to,
36:51
the first point would be to talk about Mr.
36:54
Atalano and factually what his circumstances are.
36:58
And to circle back second to judge Lori's question to the,
37:03
the secretary's counsel,
37:04
the government's counsel.
37:05
Uh,
37:06
basically under the veterans court interpretation,
37:09
a disabled veteran who can't appear doesn't get a hearing that that's very clear.
37:15
And in footnote five of the veteran veterans court decision,
37:20
it quite clearly says that there is no authority for the proposition that when a veteran can't appear,
37:25
when an appellant can't appear there,
37:27
there is no provision for hearing.
37:29
There is no discretion.
37:30
The board has no discretion to grant the hearing.
37:33
There's no good cause for that.
37:34
Even under the secretary,
37:36
Judge Lourie
he still,
37:37
he still gets an argument with representation.
37:41
So maybe he doesn't necessarily get an oral argument,
37:46
a hearing,
37:47
uh,
37:48
but,
37:49
but that doesn't mean he,
37:51
he,
37:51
he lacks due process.
37:54
Appellant Attorney (Sean A. Ravin)
Uh,
37:54
no,
37:55
your honor.
37:55
I respectfully disagree with you because there is no guarantee for argument.
38:00
There is only if it's only a good cause and shot is shown and only is that the discretion of the,
38:05
of the board member.
38:05
But further or oral argument is different than a hearing where you get to present testimony from a witness,
38:11
such as Dr.
38:12
Trippy,
38:13
who has examined the veteran and is prepared to provide answers and responses to questions.
38:18
And lay testimony is just so important and so critical in these cases.
38:22
And,
38:23
and for example,
38:24
in this case,
38:24
Mr.
38:25
Atalano's appeal was denied on the basis of the board member finding and provide actually adjudicating and finding no probative value to Dr.
38:33
Trippy's written testimony because it contained,
38:36
uh,
38:37
answers that were not,
38:38
uh,
38:39
very contained information that didn't square the law judge.
38:43
Fine.
38:49
Disabled veterans can't appear.
38:50
This interpretation,
38:52
they cannot appear and they cannot end the hearing.
38:57
Finally,
39:05
to Mr.
39:06
Atalano's conditions,
39:07
70% disabled under a psychological disability,
39:11
PTSD.
39:12
They found that,
39:14
that he had that disability.
39:15
And further,
39:16
they found he was totally disabled and entitled to individual unemployability.
39:20
Clearly,
39:21
even Dr.
39:22
Trippy found that he suffered from these,
39:24
these impairments under 38 CFR 4.1,
39:28
three L diagnostic code 94,
39:30
11,
39:30
a 70% disability rating is assigned by VA.
39:34
And they find that there are deficiencies in most,
39:37
in most areas caused by symptoms such as obsessional rituals with interfere with activities,
39:42
speech,
39:43
intermittently illogical,
39:44
obscure or irrelevant near continuous panic or depression.
39:47
These,
39:48
this is a severe disability in short.
39:51
And to conclude,
39:52
the veterans court interpretation is,
39:55
is,
39:55
is erroneous.
39:57
It's not,
39:57
it's not a correct interpretation of the plain meaning of the statute.
40:01
Judge Taranto
Mr.
40:01
Craven,
40:01
this is just Toronto.
40:02
Can I just ask one question?
40:04
I think about what,
40:05
um,
40:06
what you were just talking about,
40:09
um,
40:10
that the veterans court were correct.
40:14
Unknown
7,
40:18
Judge Taranto
1 0 7 B no,
40:36
the secretary from giving such a right.
40:39
Anyway,
40:40
it's not,
40:41
it wouldn't be contrary to,
40:43
to the statute.
40:45
It just would be in no way authorized by that provision.
40:49
Is,
40:49
is it right that the secretary cannot add to the statutory rights in favor of the veteran?
40:56
Appellant Attorney (Sean A. Ravin)
If that were to happen,
40:59
your honor,
40:59
I think that you would see it applied unevenly throughout so that some veterans who,
41:05
some,
41:05
some appellants who,
41:06
who weren't able to appear would get hearings and others would not.
41:09
Some person like Mr.
41:10
Jesus at the Lano will be left wondering why,
41:13
why wasn't he allowed to present expert testimony,
41:16
but somebody else was.
41:18
And,
41:18
and I think that there's no wiggle room from the court's interpretation and looking at footnote five,
41:23
I just think that there's no opportunity for the secretary to,
41:27
to deviate from the court's interpretation that a,
41:30
an appellant must be physically present and must participate in the hearing in order to get a hearing.
41:39
Thank you.
41:40
Thank you.
41:40
Judge Lourie
Thank you,
41:43
Mr.
41:43
Raven.
41:44
We appreciate the argument council and the cases submitted.