united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court good morning ladies and gentlemen we have four patients on the council this morning veterans we to defer to the agency i am just putting its own statute your honor the differences is appropriate only if the plain language of the statute that is surely about the just commencement consider that mr at the llano is a severely disabled veteran the plane the plane reading of the statute allows all veterans to have hearings regardless of whether or not they're capable of appearing themselves the reading that the reading of the statute has as interpreted by the veterans court would basically basically prevent any veteran who is disabled severely disabled and unable to personally appear and participate with  basically prevent them from from having a hearing it would front them from having the opportunity to submit testimony from live witnesses and that's what i was going to in the introduction is that mr palumbo was rated as mind wanders easily so in effect the the interpretation by the veterans court would basically prevent disabled veterans from having hearings if you must actively participate and be present at the hearing you're basically preventing anyone who's bedridden witness like a doctor or a late witness a buddy or even a family member this is the hearings are so important in this series are just so important it's an opportunity to present hearing means the party and doesn't really answer the question of what is supposed to happen at the hearing and it just says an opportunity for a hearing why isn't it left to the agency to determine which in various circumstances of three possible things that could happen at a hearing this hearing is to do one is to  regulations but the argument is that the bedrooms court improperly interpreted the statute requires can i get can i start and i ask you this can do you get any benefit out of the history some signing a regulation that was in place at the time and the regulation in place at the time perhaps made clear by its terms that the hearing was for argument was for testimony  or argument which would maybe tend to suggest that the personal presence of the veteran was not required i would agree with you and i think that congress tells that it was so important that the veterans have the right to have a hearing to submit testimony sworn testimony from witnesses as well as from themselves if they wish to appear that they call to fight it and i agree with what think that that would be helpful and it certainly would be helpful to demonstrate that the veterans personal appearance and personal participation is not required the whole purpose of the hearing is to elicit testimony and that's and that's clearly that's clearly an secretar canceling sure twenty that's clearly logistical management if no party show up and it's very common in the board and the central office in washington d c for people to request for persons to request a personal show no i would say i would i don't quote me on this on the on the on the obviously this is not a record this is only anecdotal and i would say that but nobody would show up as opposed to this particular department located within the area served by regional office of the department surely that doesn't mean only mr his disciple on a mr clinton could request that it met the ernie i interrupt you i think what it means is that the attorney can attend the hearing i don't see in your briefs where you've challenge this part this part of the veterans court holding on appeal can you address that and if you think you have  and you have not challenged the current court's decision i have not challenged that alternative or for that because that wasn't the basis for the betterment squirts decision  i stand and i respectfully would argue that that is the plain meaning issue and it's the issue of the plain meaning i did not get into several different simply because i understand that it's very very difficult for you to what's key here is that even if this court determines in contrast to the veterans court that the statutory language does not unambiguously favor the veterans court's interpretation the regulations nonetheless make clear that mr  especially important because section seven thousand one hundred and five does explicitly delegate authority to the v a to prescribe regulations regarding hearing and representation   try to be clear about the st part i don't see anywhere in seven hundred dollars that says if you do not ask if you do not appear personally you shall not get a hearing i don't think does appear to refer to the veteran or claimant but the regulation itself in such subsection seven hundred dollars and sprinkled throughout parts twenty of the regulation does actually make a very clear distinction  i'm hearing what you're saying is not really answering my question the appellant is is the party now in this context the party is always a natural person and so it's the party if  appellant in the federal rules of appellate procedure it could be a corporation of the corporation would never have to appear personally so i'm not quite sure and lawyers rep or representatives represent their parties and there's lots of language and all kinds of legal context that says the appellant argues well the appellant may never even read read the pleading or the brief you mean the representative is speaking on behalf of the party i'm just not sure how much mileage one gets out of a dispute about the meaning of the appellant it's plainly the claimant who is the party but then the question is where do the regulations say that person must a the appearance and let's put that aside for appearance in the sense of personal preference press the presence of the individual and then the regulations say well sometimes we're not going to have it if you don't appear but where where does the regulation say if you do not appear and this is i think what the nd part of the veterans court opinion seems to say and maybe the board said that we just have a rule if you don't appear you are not entitled to have any kind of hearing including for the other two purposes argument from a representative or non party witness  even established good cause so it sort of didn't matter in that case but the board i think did state in its decision that if an appellant had shown good cause in advance for why he not appear or why he could not appear i think in accordance hearing despite the board's i think multiple don't so that we might have a feeling for house k s the resources are and whether that's really a relevant consideration oh you're under a lot sure that there is any data in the record that shows appellant an opportunity for a hearing and so i would expect the appellant to request hearings and that that seems to be what happened in this case will be given the opportunity for a hearing as well as mr alon i wasn't in fact given the opportunity to reschedule the hearing multiple times and i think the veterans court also does talk about and this is i think sort of sideways tear on our question that at least in terms of numbers and percentages the veterans court cited to the cook case which had a good bit of legislative history talking about the purpose of abortion bring in that hearing from the and that giving the board member the opportunity to personally interact with the  which states that it's the veterans one opportunity to personally address those who will find facts and make credibility determinations and that the board the hearing is also so that the board can give claimants the information that i think that that's a factual question but secondly i don't think we ever have stated or argued and i don't think the veterans court as of our stated or argued that mr udell out of t r u or seventy percent disability could never be good maybe the framework that they applied was wrong because they said there was a good cause without any explanation of why there wasn't good cause for example you know they just said no good cause without just lumped in man with five other people who are all the same counsel without looking at his individual circumstances and determining whether he had good cars or not be present i don't see any analysis factual analysis as to mr out a lot of disability level because of a good cause of course there wasn't a court decision itself but i think that both the board and the veterans court were acting in accordance with the regulation by sort of  requests for representatives to alone to personally of her alone may be granted in good causes shown and whether good cause dissension will be determined by the presiding member 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 whether it be the appellant or the representative and here again what do you make of good regulation definition of hearing which is and what about how the regulation defines hearings to include providing the testimony of witnesses there's also other regulations that say that a the regulations and understanding you know whether these regulations actually have been played that you're not entitled to a hearing which your representative for the question your expert witness unless you are present personally present as well will your honor i think that i don't think that anything in parts or some parts seven hundred is in conflict with the broader definition of the hearing which can include argument and questioning of be present however the regulation also states that other witnesses are contemplated to be present if there are any other witnesses and that is also for argument so i don't think that the regulation the requirements of the regulation that informal hearing does in fact provide for what would normally happen in situations where the appellant cannot or does not wish to appear in the informal arguments by audio cassette and so i think that again  the statutory provision and or regulations that are at issue in this case have been superceded in some way by the two thousand and seventeen act and the twenty one thousand regulations under them and if that's right how much of what we would be deciding in this case would answer the questions under the superseding statutory and regulatory provisions   a lot of gray area that's unfortunate beyond what we're dealing with in the start a lot of situation i think there are regulations and statutes that otherwise provide for friends and for the sheriff to stand in for claimants and i think to circle back nd to judge maurice question to the secretary's counsel the government's counsel basically under the veterans court interpretation a disabled veteran who can't appear doesn't get a hearing that that's very clear and and footnote five the veteran veterans court decision it quite clearly says that there is no authority for the proposition that when a veteran can't a parent to parent can't appear there there is no has examined the veteran and is prepared to provide answers and responses to questions and lay testimony is is just so important and so critical in these cases and for example in this case missed out a lot of the appeal was denied on the basis of the board member finding and provided actually adjudicating and finding no probative value to dr tripp he's written testimony because it contained answers that were not question contained information that didn't square with the veteran's law judge's findings so again the jury just st question is a disabled veteran can't appear under this interpretation if they cannot appear and they cannot participate activities speech intermittently illogical obscure or irrelevant near continuous panic or depression this is a severe disability and short and to conclude the veterans court i last individual the claimant appears in person why would that preclude the secretary from giving such a right anyway it's not wouldn't be contrary to to the statute it just would be in no way authorized by that provision is it right that the secretary cannot add this to the statutory right in favor of