CCK Delivers Oral Argument at Federal Circuit Regarding Herbicide Exposure in Thailand
Factual and Procedural History
Mr. Hudick served honorably in the United States Air Force from September 1962 to July 1983. During his service, he was stationed at the Udorn Royal Thai Air Force Base (“Udorn”) in Thailand from January 1967 to January 1968. In April of 2006, he was diagnosed with prostate cancer and filed a claim for service connection shortly thereafter. Mr. Hudick claimed that his prostate cancer was due to herbicide exposure in Vietnam, explaining that while he was stationed at Udorn, he regularly traveled to Tan Son Nhut Air Base in Vietnam. In July of 2006, VA requested records from the National Personnel Records Center showing that he had physically set foot in Vietnam. The records were unable to verify his presence in Vietnam, and his claim was then denied in November of 2006. Mr. Hudick appealed this denial to the Board of Veterans’ Appeals.
Following his appeal, VA issued a new Compensation and Pension Service Bulletin (“Compensation Bulletin”) acknowledging that between February 28, 1961 and May 7, 1975, there was significant use of herbicides on the fenced perimeters of military bases in Thailand. VA concluded it would concede herbicide exposure on a facts-found basis where a veteran could establish by “credible evidence” that he had served near the perimeter of particular Air Force bases, including Udorn, during this time period. Additionally, VA revised its Adjudication Procedures Manual M21-1 (“M21 Manual”). The revision recites steps for evaluating claims of herbicide exposure for veterans with service in Thailand during the Vietnam Era. Specifically, adjudicators must “determine if a veteran served at one of the enumerated airbases in Thailand during the Vietnam Era as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of the security police squadron, or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence”. If the above is established, then exposure should be conceded on a direct, facts-found basis.
*Disclaimer: The audio recording included above begins midway through the oral argument.
Board of Veterans’ Appeals Decisions
In May of 2012, the Board remanded Mr. Hudick’s claim for further consideration based on the new Compensation Bulletin and M21 Manual revisions. In doing so, the Board directed the Regional Office to inform Mr. Hudick of the evidence required to establish service connection for his claim based on herbicide exposure and explain the manual procedures for Thailand veterans. Additionally, the Board told the Regional Office to request additional information from the Department of Defense or Joint Services Records Research Center and then adjudicate his claim for service connection for prostate cancer. The records obtained were still unable to verify whether Mr. Hudick was exposed to herbicides while at Udorn. However, Mr. Hudick submitted additional statements explaining his duty location at the munitions storage area two miles from the main support base on the outer perimeter, and his job responsibilities which involved frequent contact with aircrafts that had direct exposure to herbicides.
In September of 2015, the Board issued a second decision in which it determined the initial remand was unnecessary and denied Mr. Hudick’s claim. In its decision, the Board acknowledged his assertions that he had served temporary duty assignments in Vietnam, but determined there was no evidence to confirm that he had in-country service. As to herbicide exposure in Thailand, the Board found that Mr. Hudick was competent to report his work-related duties, but such evidence was outweighed by review of his service records and exhaustive research efforts, which resulted in conclusions that contradicted his own. The Board concluded the latter was the most probative evidence in the appeal and therefore found that Mr. Hudick was not near the base perimeter at Udorn on a regular basis. Furthermore, the Board asserted that regardless of if he placed himself at the perimeter, the historical data showed that herbicides were not used in Thailand until long after he was at Udorn.
CCK Appeals to the Court
CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied entitlement to service connection for prostate cancer due to herbicide exposure. CCK argued that the Board committed prejudicial legal error by failing to analyze the credibility of Mr. Hudick’s lay statements. CCK further asserted that the Board erroneously required him to provide corroborating evidence to establish that he served near the perimeter of Udorn. As to both arguments, CCK contended that the Board failed to adequately explain its conclusions.
CAVC Affirms the Board’s Denial
The Court disagreed with CCK’s arguments and instead affirmed the Board’s decision that denied Mr. Hudick entitlement to service connection for prostate cancer due to herbicide exposure. The Court concluded that because the Board weighed Mr. Hudick’s statements against the other evidence of record, this implied that the Board found his statements to be credible. However, the Court held that he was not entitled to any presumption of exposure based on service in Vietnam or Thailand. While he insisted that he performed temporary assignments in Vietnam, the Court credited the Board’s contrary finding. Moreover, although Mr. Hudick credibly placed himself along the perimeter at Udorn, veterans who served in Thailand during the Vietnam Era are not entitled to any presumptive service connection. The Court also determined that the M21 Manual is not binding on the Board and the Board found evidence that clearly demonstrates that herbicides were not used on any United States Air Force base in Thailand until April 1969, after he was at Udorn.
CCK Delivers Oral Argument at the Federal Circuit
CCK continued to appeal to the next highest court: the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), where CCK partner, Zachary Stolz, delivered an oral argument on October 3, 2018. Here, CCK argued that the Court violated Mr. Hudick’s due process rights by allowing VA to ignore its own internal policies and rules providing a presumption of service connection in the circumstances at issue here. CCK did not suggest the Federal Circuit consider how the Board weighed evidence, but asked the Circuit to consider whether the Board and the Court erred by ignoring the M21 Manual.
Federal Circuit Agrees with CCK’s Arguments
CCK argued, and the Federal Circuit agreed, that both the Board and the Court violated Mr. Hudick’s due process rights. Specifically, the process followed was defective and unfair because the Board, and the Court, ignored specific procedural rules. The Federal Circuit held that VA cannot ignore its own rules, in this case the M21 Manual. The Board’s first remand was for Mr. Hudick’s claim to be readjudicated according to the procedures of the M21 Manual. However, the Board never finalized its remand order as the second Board decision concluded remand was unnecessary and adjudicated the claim without resort to the M21 Manual. Therefore, the Federal Circuit determined that the Veteran did not receive a fair review of his appeal because the Board refused to apply the very rules it told Mr. Hudick would govern his adjudication.
Additionally, the Federal Circuit determined that the M21 Manual concedes herbicide exposure if a veteran provides credible evidence showing that they were otherwise near the air base perimeter of Udorn in Thailand, which Mr. Hudick clearly did. Therefore, the Federal Circuit concluded that VA should have conceded exposure based on the M21 Manual as it does not require him to provide corroborating evidence, just credible evidence, which he did. Furthermore, Mr. Hudick fell within VA’s timeline of herbicide exposure as indicated in the Compensation Bulletin, which should have been considered as well. The Federal Circuit found that Mr. Hudick should have prevailed under the proper adjudicatory framework based on the facts already found by the Board. Accordingly, remand for further consideration of the facts relating to his service was not necessary. The Federal Circuit reversed the Board’s denial of Mr. Hudick’s claim and remanded his case for purposes of finalizing an appropriate award of benefits.
Judge O’Malley: That the manual, on its face, covers him, right?
Zachary Stolz: Yes, your Honor.
Judge O’Malley: But they didn’t apply the manual to him.
Zachary Stolz: Yes, they did not do so correctly. The Board of Veterans Appeals and the Court discussed inside of the manual and then didn’t follow it.
Judge O’Malley: Okay, but how can you call the manual substantive rule of law or a substantive provision when we said in Gray that they’re not at least for purposes of review?
Zachary Stolz: In Gray and in DAV, those were direct rule challenges so it’s a different context than this. In Gray, at least in our reading of it, Gray and DAV leaves the door open for precisely this kind of challenge. That it is a substantive rule. This does have the force in effect of law. It’s different than what the court found to be interpretive rules in DAV and in Gray because both of those provisions were interpreting existing regulations, statutes and were found to be interpretive.
We’re arguing in this case that it’s different because there’s nothing on point for Thailand Veterans and because this is VA’s stated policy, not only in the M21 but in the other places cited in our pleadings, that this is VA’s policy on the matter. And because it creates a substantive right, the M21 does in fact control here and does bind VA.
There does not seem to be any contention, and I don’t want to put words in VA’s mouth, but I’m not reading any contention that VA adjudicators at the Regional Office level are bound by the M21. And because it is a substantive rule, the Board should be so bound as well just because it’s found in the M21.
Judge O’Malley: But I thought you conceded in your brief that it doesn’t bind the Board?
Zachary Stolz: The M21 writ large does not bind the Board of Veterans’ Appeals, but a substantive rule can still be found in the M21. It could be placed in there. The M21 DAV and Gray stand for the proposition that the M21 doesn’t bind the Board and that’s based on some regulatory –
Judge Clevenger: The rationale of it does even know the manual doesn’t itself bind? Where does the binding nature–
Zachary Stolz: The fact that– I’m sorry, Your Honor. The fact that this is the substantive rule. The fact that this is VA’s policy pronouncement, because this is the only place for –
Judge Clevenger: The policy is embraced in the rule, right?
Zachary Stolz: I’m sorry, Your Honor.
Judge Clevenger: The policy is embraced in the terms of the manual. Presumption has created a manual.
Zachary Stolz: Essentially, yes. It’s not quite a presumption.
Judge Clevenger: Does it matter? Doesn’t the presumption created a manual ideal with every man assigned to a duty at the perimeter?
Zachary Stolz: It does. It follows through the –
Judge Clevenger: Wasn’t there a fact aligning that your client wasn’t assigned a duty at the perimeter?
Zachary Stolz: That fact finding — I don’t believe so, Your Honor. The facts in the case-
Judge Clevenger: I thought the facts were that your client was at the perimeter walking around the or from time to time but in his duty assignment station was that he was not assigned at the perimeter?
Zachary Stolz: And that’s the nub of the case, Your Honor. That’s the heart of the case. It’s-
Judge Clevenger: But that was a fact-finding. He was not assigned at the border and in order to earn the presumption under the manual, you’d have to be assigned at the perimeter.
Zachary Stolz: But that’s not what the Veterans Court found. The Veterans Court found him competent and credible to place himself on the perimeter and under the provisions of–
Judge Clevenger: The case of him physically being at the perimeter as opposed to assigned a duty. I presume some people were assigned to patrol along perimeter or go out and spray the weeds at the perimeter or whatever.
Zachary Stolz: Yes, Your Honor. That’s all found in the M21, but the M21 is more than that. The M21 provision says that on a facts found basis, if a Thailand veteran puts himself on the perimeter, which Mr. Hudick did.
Judge Clevenger: Okay. Another fact that’s stuck in my mind was the fact-finding that none of the relevant chemicals were ever present at this base at the time your client was assigned there.
Zachary Stolz: Your Honor’s referencing the archivist report from 2014.
Judge Clevenger: And that was the nub of the archivist report, correct?
Zachary Stolz: The archivist report does have a sentence in there, in his e-mail that says that herbicides were not sprayed at Udorn until 1969 which post-dates when Mr. Hudick was there. However, that’s contrary to VA’s policy. VA stated instruction in the M21 concedes herbicides.
Judge O’Malley: So the manual starts at 1961?
Zachary Stolz: I’m sorry, Your Honor.
Judge O’Malley: The manual starts at 1961.
Zachary Stolz: Yes, it contemplates the entire Vietnam Era, which does cover Mr. Hudick.
Judge O’Malley: So, as I understand, the dispute here is not whether he would fall within the terms of the manual, but whether the manual is binding on the VA or on the Board.
Zachary Stolz: Yes, Your Honor, he unquestionably falls under the manual. That is what we are saying. And that the manual does – it binds the Board or at the very least, Your Honor, it binds the adjudicators at the Regional Office level. Again, I don’t believe there is a dispute and if it binds the adjudicators, it puts Thailand veterans into a bit of a bind because the only place that VA has announced the policy of how they’re really going to deal with Thailand Veterans is in this M21 provision on its website consistent with the CHECO report. Because it does, again, Your Honor, as we stated in our briefs, satisfy the test laid out for what constitutes a substance of rule. It should bind the Board.
Judge O’Malley: It constitutes the substance of rule because this is the only place that the policy of the VA as to how they’re going to treat these veterans is set for?
Zachary Stolz: I was at that’s the strongest point for it being a substantive rule.
Judge O’Malley: Alright. What other points are there?
Zachary Stolz: The three-part test contemplates the agency’s characterization of the action whether it is contemplated in the federal regulations and whether it has binding effects. TR has pointed it all stems from the fact that this is the only place where it is announced, but it does bind and the fact that Step 1 is irrelevant because it’s not published in the federal register but that’s not fatal to the test.
Judge Newman: Just to be clear, is your view that if the manual is binding, there are no remaining questions raised by the government?
Zachary Stolz: My view is that in fairness, the government tried to throw this into a weighing of evidence type of question but that’s not how– right.
Judge Newman: Yes, that is pervasive in the argument.
Zachary Stolz: Right, and I know that they will speak more to that but this is not a weighing of the evidence case because the substantive rule as Judge O’Malley points out is the only place where the Thailand provisions are found and should be the end of the matter. There should not have been this further development. Once he met the M21’s requirement which he does when he credibly placed himself in Thailand’s during the relevant time period, that should’ve been the end of the matter. That’s our contention. Yes, Your Honor.
Judge Newman: Well. Let’s see hear from the government. You may save your remaining time.
Zachary Stolz: Thank you, Your Honor.
Judge Newman: Mr. Yale.
Mr. Yale: May it please the court. I first would like to address the issue of whether or not this is a substantive rule. There’s really no daylight between the provision here and the provisions in DAV or Gray. When you go through the three-part test, it’s the same analysis. The VA’s characterization of this manual provision has always been that it’s not binding, there is never a notice and comment here–
Judge Newman: What’s the point of such a rule if no one need follow it?
Mr. Yale: Well, it’s essentially a factual shortcut for the initial agency decision-makers. It’s informal guidance to those decision-makers when they’re getting claims in that they can look at this manual provision and see that for example, if you held certain positions on these Thailand Air Force bases that the government should concede exposure, but we think the DAV and Gray are very similar in terms of the analysis as to whether or not this is a substantive rule.
Judge O’Malley: Part of my problem is that with DAV and Gray, the government argue that it’s not a substantive rule for purposes of saying, “You can’t challenge it. You can’t challenge the rule on its face,” and said, “But it’s okay because if there’s any concerns about the rule or the application of the rule, that can be addressed in an individual case when the manual is actually applied to an individual. So that’s what we have now.
Mr. Yale: Sure. Sure, Your Honor. Well, you can make a 72-92 challenge to a particular portion of the manual, but here, the petitioner is not saying that we should strike this rule as being contrary to law, this provision. In fact, that would not help Mr. Hudick in this case. What he’s saying is that, “We’re okay with the manual provisions for Thailand veterans. We just want the VA to be applying it in a manner more favorable to Mr. Hudick.”
Judge O’Malley: In a manner that is consistent with it on its face. That’s not what he’s saying. He’s not saying, “I want a better version of the manual,” he’s saying, “I want the manual.”
Mr. Yale: Correct, which goes back to that involves the weighing of evidence. As we landed on our brief-
Judge O’Malley: You didn’t argue that he didn’t fit within the bounds of the manual.
Mr. Yale: We did, in fact, argue that. We argued that the VA followed the manual. Even though it’s nonbinding, the VA followed the manual provisions and it found that he didn’t hold the positions of dog handler, security, individual–
Judge O’Malley: But it found that there was, in fact, credible evidence that he served at the perimeter.
Mr. Yale: The VA actually found that the evidence and the Board looked at it and found that actually when you weighed all of the evidence, the lay evidence was outweighed by other evidence including the records finding that Mr. Hudick did not have his duties regularly served on the base perimeter. As well as the factual finding concerning herbicide exposure that there was no spraying of herbicides—
Judge O’Malley: That part on its face is inconsistent with the manual, right?
Mr. Yale: Correct.
Judge O’Malley: The manual says 1961 to 1974.
Mr. Yale: But it’s not inconsistent in that there was uncertainty as to whether throughout all of those bases there was spraying on a particular base. When you go through the manual–
Judge O’Malley: That’s what the whole purpose of what a presumption is, right?
Mr. Yale: That is correct if there was a statutory presumption or presumption based upon a regulation. That’s not what this is. This is based on direct service connection. It’s trying to get to the point of whether or not a veteran was exposed to herbicides. And, the manual provisions while they-
Judge O’Malley: We can debate whether the manual’s binding. What I’m having a problem with is when you tell me that 1961 to 1974 is presumed covered and now you say, “But you know what? We only have to start it at ’69,” and that that’s somehow is consistent with the manual. That’s my problem. I think we can debate whether the manual’s binding but the manual says what it says.
Mr. Yale: Correct, the manual says what it says but again, as we point out in our briefs, if you follow through the manual questions, if you don’t hold these certain positions, and if the evidence demonstrates that you didn’t have regular duty on the perimeter, you then go to additional questions which is what actually happened here.
They reached out to the record center and the record center provided records regarding these issues. If you look at, for example, joint appendix 100 and 101, the joint record center provided facts and that’s based upon the fact that while the manual was not binding on the Board, the VA still followed the provisions of the manual and the Board in its analysis and its opinion, still went through the analysis there.
So, even if for some reason the court were to find the provisions as binding which there’s a regulation saying these manual provisions are not binding. The VA’s never treated this as binding. There still was no error here and so even—
Judge O’Malley: I’m still having a hard time. The Board found his evidence, of service near the perimeter to be credible, correct?
Mr. Yale: Correct.
Judge O’Malley: Right, and the manual says if credible evidence establishes service near the perimeter during this entire time-frame then we presume exposure. So why are we going to these other sources of data if the manual says don’t do it?
Mr. Yale: Well, because I don’t think the manual says as long as you have one credible piece of credible evidence, you automatically stop there. They were weighing all of the evidence of record and that’s consistent with the VA’s–
Judge Clevenger: In terms of the weighing of that evidence, what happens to your case if we take the fact that the herbicides weren’t found there until ’69 if we take that fact out – that disappears –
Mr. Yale: I think it gets to, still on the weighing of evidence–
Judge Clevenger: What then would there be on the record to show that the Harrow and the DVA properly applying the regulation came to the correct conclusion?
Mr. Yale: Well, because they went back and the Joint Records Office, looked at it, and found that the records demonstrated that Mr. Hudick’s position did not have him regularly operating on the perimeter. The only piece of evidence–
Judge O’Malley: What if we don’t go to Step 2? Because it sure looks like Step 1 is supposed to be the end of the inquiry. What if we conclude that going to Step 2 was neither appropriate nor necessary? So that the manual says what it says, he falls within the bounds of the manual, and relying on evidence to undercut the manual itself isn’t consistent with the manual. So then where are you?
Mr. Yale: Even if there is error there, this is the Board who’s looking at it de novo. Even if there is an error there, it would be an error in applying a nonbinding provision so then–
Judge O’Malley: But does the manual bind the regional adjudicators?
Mr. Yale: Well, I think they are supposed to follow the manual provisions –
Judge O’Malley: Okay, so why wouldn’t the Board then remand to the RO to apply the manual?
Mr. Yale: As I stated before, the manual is non-binding and –
Judge O’Malley: It’s binding on the adjudicators.
Mr. Yale: The initial adjudicators. This is a manual of informal guidance for the VA, factual shortcuts, for example here, to see whether or not an individual’s exposed to herbicides.
Judge O’Malley: But to basically just give clarities and it say, we’re not going to require all this other digging and all this other evidence if there is a presumption, right?
Mr. Yale: Right. It’s a factual shortcut to see whether or not the veteran has demonstrated exposure to herbicides but the VA has never meant these provisions to bind the Board or bind any tribunals. That came up in Gray I believe as well. It’s never meant to bind the VA when it goes forward in any sort of–
Judge O’Malley: I guess what I’m having trouble with is if the adjudicators are bound by it, how could the Board say that their adjudication was correct based on the procedures they’re supposed to follow?
Mr. Yale: As I mentioned before, I think that it’s informal guidance. They’re supposed to follow it but if they don’t follow it based upon 38 CFR-19.5, it’s not binding on the board. I think in Gray and the DAV decisions, it’s been found that these manual provisions were never intended to bind anyone in terms of other tribunals. That’s part of the reason why they were found not to be substantive rules. Those essentially are the holdings on those cases and part of the rationale was it was only supposed to be guidance for the informal decision-makers. If there is an error there, if an initial agency decision-maker reached the wrong conclusion, it could go to the Board here.
Judge O’Malley: If there’s a bill pending in Congress that would say if the VA’s going to give presumption to anybody who worked in Thailand during the Vietnam Era, it needs to give a presumption to everybody who was in Thailand during the Vietnam Era. The VA has opposed that, is that right?
Mr. Yale: Your Honor, I have heard of the bill. I don’t have knowledge whether or not VA has opposed that or not. I would say that part of VA’s policies on both herbicide exposure and spraying is to find what the scientific evidence demonstrates.
Judge O’Malley: In other words, this manual was adopted. The VA is saying, “we’re not going to require all of that. We’re not going to look into it, we’re not going to require the veteran to do it”, but now the VA’s changed its mind and wants to be stricter? I mean, why not pull the manual? Why not rewrite the manual rather than just say, “We don’t follow the manual”.
Mr. Yale: If for example this was found to be a substantive rule, I guess there’s an argument that the manual provision did not go through notice and comment rule-making. The provision, I would think, be struck, but again, that would not help Mr. Hudick in this case because then he would just go back to whether or not he can demonstrate exposure to herbicides on a direct basis. He really has to be relying upon this manual provision because there’s nothing else that he’s been pointing to. I know in his briefs he pointed to the Dioxin Act but that clearly on its face does not cover individuals who served in Thailand.
Judge O’Malley: And why wouldn’t veterans feel that they could rely on a manual, that on its face covers their circumstances?
Mr. Yale: Well, I mean part of it could be if to the extent veterans have representation or there’s been several cases that have said that these are really– it was never supposed to be– have the binding effect of law on it. So-
Judge Clevenger: But if you take a case of which there was no questions about the veteran satisfying their precise requirements of the manual and it would seem to me that in the past the veteran who showed up at their RO and said, “I was assigned at the perimeter etc, etc, etc”, that he got relieved.
Mr. Yale: Well, there are certain —
Judge Clevenger: The RO is doing its job and it is supposed to apply the manual and a person shows up, with squarely no question about it. No question about whether he was at the– now, who improperly assigned, he would assume that the RO wouldn’t grant the benefit that was being requested. I mean with the least he’s had a service connection, right?
Mr. Yale: That’s correct, Your Honor –
Judge Clevenger: There are the claims of veterans out there punitively at least who have marched to the RO, walked-in, and told by the RO that there is this manual ’cause that’s the job of the RO is to be veteran-friendly, and say, “Oh, yes. That is satisfying…” You’ll get the presumption of service naturally.
Judge Clevenger: Now, and then you take this case comes along. And this veteran comes in and goes through that procedure, and there’s some questions about whether or not he has served at the perimeter assuming that the only– isn’t that the only question about his satisfying the terms of the manual?
Mr. Yale: Well —
Judge Clevenger: Yes or no?
Mr. Yale: No. Because as to the first question, that’s correct. He clearly did not meet — he was not a dog handler. He was not in security.
Judge Clevenger: And that’s why I want to walk through. So he comes in the RO. And the RO would ask the questions. And in this case, they would deny him his service connection because his duty assignment wasn’t to patrol the perimeter.
Mr. Yale: As well as, there’s–
Judge Clevenger: I just– I want to nail that down.
Mr. Yale: Sure–
Judge Clevenger: Would there have been any other ground on which his application would have been denied?
Mr. Yale: There is a general category, so he clearly doesn’t meet the positions. But there is a general category if he can show that his duty was regularly on the perimeter of this Air Force Base, which is I think where a lot of the dispute’s here. There’s no dispute whether or not –
Judge Clevenger: I just want to nail down the perimeter– if there’s anything other than the perimeter that would disqualify him for the presumption at the RO.
Mr. Yale: At the RO stage, if he had demonstrated that he had regularly served –
Judge Clevenger: No. I don’t want to take the perimeter out. I want to ask, is there something else like he had to wear blue clothes? Or he had to have– be there two hours or something– some that are totally different categories.
Mr. Yale: Well, there’s obviously the time period which he met. But as for that first run, no. You’re correct.
Judge Clevenger: Okay. The reason I’m asking this is that there is the– as I understand the BVA gave credit to his testimony that he was at the perimeter.
Mr. Yale: The Board found him competent to say that he was at the perimeter.
Judge O’Malley: Not just confident. Credible.
Mr. Yale: Okay. Correct. And then they looked at other evidence and they weighed all of the evidence of the record.
Judge Clevenger: Okay, I don’t want to talk about that other –
Mr. Yale: Okay.
Judge Clevenger: So the other evidence you’re going to talk about is whether they were no chemicals there until ’69. I’m going to take that totally out of the equation. What I want to know is whether there’s any other factual data point, against the veteran other than the fact that he didn’t have the service at the perimeter.
Mr. Yale: Well, it’s the — Sure. The other factual data point was not specifically on, I guess — that I think they looked at the unit records to determine where sort of on the base these individuals were. And they didn’t find that they were regularly on the perimeter in his unit. And they also found —
Judge Clevenger: Well then what I want to come back to this sort of begins to turn on the quality or the weight that’s given by the BVA and by us in assessing the fairness of the adjudication to the veteran’s testimony that he was at the perimeter. And so that seems to me that that’s an adjudicatory fact at the BVA that it seems to be overriding the opinion of the RO on the placement at the perimeter issue. Am I wrong?
Mr. Yale: Well, I’m not sure that you’re wrong. But I also don’t think that this court under 7292 can really go back through and reweigh the evidence as found by the Board.
Judge O’Malley: Let me ask you something. Whether the policy was formal or informal, or binding or not, does that matter for due process purposes?
Mr. Yale: I would think it would matter. I’m not sure how an agency not following a non-binding provision could be a due-process violation. And I might add, as we lay down our briefs, I mean we do think that they– actually the VA actually went through and followed the policy. But you have the Board as well as the veterans court who can look at these issues. And due process only really requires notice and an opportunity to be heard. I mean Mr. Hudick has had an opportunity to be heard on these issues.
Judge Clevenger: You want us to say as a matter of law, as a matter of judicial ruling, the Secretary, the VA can ignore in its procedures at whatever stage whatever it states in the manual?
Mr. Yale: Well, I think under a 7292 challenge you have to look at the particular manual provision –
Judge Clevenger: The answer is yes. We tell the world that the Secretary is– the VA is not bound by what it states as its policy. Forget it.
Mr. Yale: Well, I wouldn’t exactly put it that way. But I take your point.
Judge Clevenger: But isn’t that where you are taking us either it’s binding or it isn’t?
Mr. Yale: Well, I think in DAV and Gray, they certainly said that these provisions are not binding. And I think that there’s a regulation stating –
Judge O’Malley: Oh, we didn’t say they’re not binding. We said the VA claims they’re not binding. And we said in those circumstances, you can’t do a pre-application challenge to those provisions. But we never said what the implication of the VA’s position on it being non-binding was other than for that purpose.
Mr. Yale: Sure. And I think in those cases as well, there has been left open the possibility of individual 7292 challenges to a particular manual provision. And to the extent that the VA has implemented a manual provision and refuses to follow it and for example that violates a statute. Say for example, it actually violated the Dioxin Act. I mean there could be a 7292 challenge essentially striking that manual provision as violating the constitution or violating another statute. But that’s not– again, that’s not what we have here.
Judge O’Malley: But the VA is not going challenge its own manual. So, you’re saying is if the manual really is inconsistent with the statute, then a veteran can challenge it. But the real question here is assuming that no veteran wants to challenge it, what the veteran actually wants to do is get the benefit of it. But you’re saying that in those cases, there is no way to say that the VA should actually – even as a matter of a procedural fairness follow its own policy.
Mr. Yale: Well, again because at least for this manual provision or the ones in DAV and Gray — I mean they are non-binding. I mean there is ways to get at a Thailand presumption for veterans. Congress can for example implement a new statute.
Judge O’Malley: So why did the VA establish this Thailand presumption for veterans? I mean the whole point was that Congress was too slow in doing it. And that the VA, which is veteran-friendly, felt that they should just go ahead and create one. And they did. So then you create one, but you don’t apply it.
Mr. Yale: Well again, I think we dispute that it was not applied in this case. But it was created because they were receiving many applications from veterans who served in Thailand. And so, they implemented this manual provision as informal guidance for the initial decision-makers because they were receiving so many applications in for benefits. So that’s I think — and they were trying to get out with the manual provisions where Dioxin and those chemicals were sprayed.
Judge Clevenger: We have a line of cases I know that they’re saying that a misapplication of regulation is itself a question of law. You know there’s cases came up. We have this problem that you referred to earlier that we can’t review a factual determination. Isn’t this a case which we couldn’t decide that there was– if we decide that the manual has some applicability to the decision of this case, and that it was the guiding light for the RO, and that the BVA was actually looking at this case as to whether or not there was satisfaction of the manual’s requirements. And we conclude that there was a misapplication of that rule by the BVA, and its decision that this gentleman wasn’t entitled to the benefit or the regulation.
Mr. Yale: There are a lot of cases involving these–
Judge Clevenger: I’m just trying to be– What came to me in the way of the argument when I quickly look back in how the CAVC was looking at this decision, it did begin to look like there was a question of trying to decide whether this veteran had satisfied the requirements of the manual —
Mr. Yale: Correct–
Judge Clevenger: That if he had he would win. And it seemed to me that as a result of our discussion here today, if the fact that the chemicals weren’t put on the ground until ’69 or whatever well after the date of the manual’s applicability, if that fact comes off the record all that’s left seem to be whether or not this veteran was at the perimeter. And if he was at the perimeter, he would win.
Mr. Yale: Well, I mean the —
Judge Clevenger: Under the manual which where lies the difficult question for us is to whether or not this manual is binding. All of the decision-makers here treated the manual as something under which this veteran would prevail had he satisfied the terms and conditions of the manual. And you’ve been as in essence said that yourself, haven’t you?
Mr. Yale: Well, the —
Judge Clevenger: That’s why this case was served up. This case wasn’t served up as a binding regulation that binds, that whole question that we’ve been deciding here is in ether as we look at the problem. And I’m looking at what has actually happened in this case. The veteran went to the RO, asked for relief, must have been told that there was a manual presumptive coverage that he might or might not be entitled to. And there’s only seems to be one data point on which he failed. And if that data point was wrong, wrong, wrong, wrong, then there was a misapplication of the prevailing regulation—it would be an error of law which would review that.
Mr. Yale: But with all due respect, what is the regulation that we’re reviewing? This non-binding manual provision?
Judge Clevenger: There’s a process that at least for purposes of this case which is what we’re trying to decide in this exact case, a larger case. For purposes of this case, the agency chose to strap the manual on its own back. And you’ve said that. You said this is a question of whether or not he satisfied the manual when the fact show he didn’t satisfy the manual.
Mr. Yale: Well, I mean I think we made other arguments in this case –
Judge Clevenger: I understand that. But I mean the purpose of the oral argument is just sort of bore down and find out if there is a reversible error.
Mr. Yale: Correct. And again, I think when it comes down to it, even if you get into the manual provision it’s really a weighing of the evidence. It’s the Board, and its decision said that these facts were established, that he did not have regular service on the perimeter. I mean I take it that there is a disagreement with that. But I’m not sure how the court gets around that fact as well as the fact of when this entire provision is trying to get at who is exposed, which veterans were exposed to herbicides. And research was done finding that they were not used on these bases until 1969. I mean what may be coming out is that the manual provisions are over-inclusive and may be providing benefits to more veterans than perhaps the science shows, but that doesn’t really change the issue here as it applies to Mr. Hudick.
Judge Clevenger: I think we have the appreciation. Can we move on?
Mr. Yale: Thank you.
Judge Clevenger: Okay. Thank you, Mr. Yale. Mr. Stolz?
Zachary Stolz: Thank you, Your Honor.
Judge O’Malley: Can you address the question of being at the perimeter? Now, the manual that says other credible evidence, you say the Board found his evidence credible, but the government argues that there was contrary evidence, and so the Board had to weigh it. And so, he didn’t really have other credible evidence I guess, is their point.
Zachary Stolz: There’s no question that he was on the perimeter because he credibly and competently placed himself there. I think that to Judge Clevenger’s point–
Judge O’Malley: But did the Board — is that the conclusion the Board made? I know they said he was credible.
Zachary Stolz: No, Your Honor. When the Board found him competent and credible to place himself at the perimeter, that’s when he met all the requirements of the M21 provision. The discussion of it —
Judge Clevenger: What’s the manual specifically say about at the border– you have the language there in front of you?
Zachary Stolz: I do have the M21 right in front of me, Your Honor.
Judge Clevenger: What’s it say about the Board?
Zachary Stolz: So it’s as– my opposing counsel pointed out that this factual shortcut which I think strengthens Mr. Hudick’s case because this is what the VA should do –
Judge Clevenger: Just the language please?
Zachary Stolz: And that’s how it’s laid out. So step one: did that the veteran serve in the Air Force in Thailand during the Vietnam era. Yes he did. Did he serve at one of the following Royal Thai Air Force Bases? On the list is Udorn. He did. As an Air Force Security Policeman? No. Was he a dog handler? No. Was he a member of the Police Squadron? No, he was not. Those are things that the Board I believe did take into consideration. But otherwise near the base perimeter as shown by evidence of daily work, duties, performance evaluation reports, or other credible evidence, he credibly placed himself on the perimeter. If yes, which he did, concede herbicide exposure under direct facts-found basis.
Judge O’Malley: I guess my question is at this other credible evidence stage, can you weigh his credible evidence against other evidence? Or do you have to just stop the minute you have some credible evidence?
Zachary Stolz: Once he puts himself — and that’s what 1154A speaks to.
Judge Clevenger: Doesn’t the word “or” answer that question? If you say — so that’s why I want you read the basis about service at the perimeter as shown by his village assignments, etc. There’s that military that gets very specific assignments, right?
Zachary Stolz: Yes.
Judge Clevenger: And so on this particular case, there were no specific assignments saying he had to go to the border.
Zachary Stolz: Yes.
Judge Clevenger: That says his border presence can be shown by A, B, C, or D.
Zachary Stolz : Yes, Your Honor.
Judge Clevenger: So if it’s not shown by A, B, or C, then the fact that it’s not shown by A, B, or C which seem to be irrelevant if it’s shown by D.
Zachary Stolz : Yes, Your Honor.
Judge Clevenger: That would seem to me to be your argument.
Zachary Stolz : Yes, Your Honor.
Judge Clevenger: And that is what I’ve said earlier. I would think you’d be arguing now that if that’s the case and the only evidence on the record about presence at the border that is going to amount to something is his, because the fact that there was no record of A, B, or C is irrelevant if you satisfy “or”, then there has been a misapplication by the RO and the BVA of the law they chose to strap on themselves for purposes of deciding this case.
Zachary Stolz : Yes, Your Honor
Judge Clevenger: And if we see the case in that perspective, as served-up which seems to be the way the BVA and the CAVC and the government are treating it, here lies the difficult question of whether or not the pronouncement without noticing rule making constitutes a binding rule for all occasions.
Zachary Stolz : Yes.
Judge Clevenger: Definitely, you’ll need to decide that.
Zachary Stolz : Whether you need to decide that–
Judge Clevenger: No, you don’t need that — we don’t need to decide that the manual is a binding under all circumstances wherever way.
Zachary Stolz: No, you do not need to decide that, Your Honor.
Judge Clevenger: ‘Cause I find that a very difficult issue and it’s a potential problem. For example, if the only time you ever heard something said was by the Assistant Secretary who had a speech in California when he was trying to be generous to the veterans, does that automatically become a binding rule of law because it was the only place that that policy was ever mentioned? It seems to me to be troubling.
Zachary Stolz: I understand that, Your Honor. And Your Honor can decide this on narrower grounds. Judge O’Malley, I’m sorry did that answer your question? I want to make sure that I direct –
Judge O’Malley: Yes, I think so.
Zachary Stolz: Okay. Because the manual provision amounts to something, and because Mr. Hudick does meet all the requirements that VA stated in what opposing counsel just called its factual shortcut, the court’s decision should be vacated.
Judge Clevenger: Any more questions or more comments? Vacated?
Zachary Stolz: Should be– I’m sorry. The veterans courts– I’m sorry, Your Honor. Veterans courts decision should be reversed–
Judge Clevenger: Thank you.
Judge O’Malley: Okay. Okay.
Zachary Stolz : Thank you, Your Honor.
Judge Clevenger: Then you have the arguments, thank you both. Case is taken under submission.
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