[00:00:01] Speaker 05:
Veterans case, and a patent case from the District Court.

[00:00:06] Speaker 05:
And our first case is James Abels versus the DVA, 2018, 1484, Ms.

[00:00:17] Speaker 05:
Geyser.

[00:00:33] Speaker 01:
Good morning, and may it please the Court.

[00:00:35] Speaker 01:
My name is Alexandra Geyser, and I represent U.S.

[00:00:38] Speaker 01:
Army veteran James Abels.

[00:00:40] Speaker 01:
The two core issues in this case are the Veterans Court's misinterpretation of the word relevant and misinterpretation of the phrase reasonable possibility of helping to substantiate the claim and the statutory duty to assist.

[00:00:55] Speaker 01:
This Court, in Moore v. Shinseki, says that these records

[00:00:59] Speaker 01:
are relevant on their face because they relate to the benefits Mr. Abels is claiming.

[00:01:04] Speaker 01:
That alone triggered the duty to assist.

[00:01:07] Speaker 04:
What do you say, though, about the government's argument that Goltz against Shinseki has a two-part test, not just the one-part test for which you're arguing?

[00:01:21] Speaker 04:
I'm pointing, as I'm sure you're familiar with,

[00:01:25] Speaker 04:
the language at page 1321 of Goltz, which says relevant records for the purpose of 1503A, are those records that relate to the injury for which the claimant is seeking benefits.

[00:01:36] Speaker 04:
That's your argument.

[00:01:37] Speaker 04:
And have a reasonable possibility of helping to substantiate the veteran's claim.

[00:01:42] Speaker 04:
It sounds like a two-part test, not the one-part test for which you're arguing.

[00:01:46] Speaker 01:
O'Connell.

[00:01:47] Speaker 01:
Your Honor, we are arguing for both parts of the test as this Court articulated in Goltz.

[00:01:53] Speaker 01:
The language comes from two different parts.

[00:01:56] Speaker 04:
In what respect are you saying that the Veterans Court misapplied that test?

[00:02:05] Speaker 04:
If you are adopting the two-part test as opposed to the one-part test, how did they misapply the legal standard, which is what our question has to be?

[00:02:14] Speaker 01:
Sure.

[00:02:15] Speaker 01:
This court's jurisprudence is clear that if records relate to the benefits being claimed, then they have a reasonable possibility of helping to substantiate that claim.

[00:02:27] Speaker 01:
In Goltz, the problem was that the records he wanted to obtain were social security records related to back pain from a car accident, which the court determined had no reasonable possibility of helping to substantiate his claim for PTSD before the VA.

[00:02:45] Speaker 01:
So here, Mr. Abel's private medical records relate to his shoulder and knee claims, for which he's claiming benefits.

[00:02:53] Speaker 04:
Right.

[00:02:53] Speaker 04:
But that really is part one of the test, right, is does it relate to the same injury or the same part of the body that's injured?

[00:03:02] Speaker 04:
That, how does that deal with part two?

[00:03:07] Speaker 01:
Sure.

[00:03:07] Speaker 01:
So part two.

[00:03:08] Speaker 04:
Unless you're folding part two into part one and saying if part one is satisfied, then part two is necessarily satisfied.

[00:03:14] Speaker 04:
I'm not saying that, are you?

[00:03:15] Speaker 01:
I think as a practical matter, that's how it works out, Your Honor.

[00:03:18] Speaker 01:
In the Sullivan case, this court determined that the duty to assist applied for a VA examination that determined there was no current injury.

[00:03:30] Speaker 01:
So as a practical matter, it was unlikely that those records were going to help to substantiate the claim.

[00:03:38] Speaker 01:
because they related to the injury being claimed, there was at least a reasonable possibility that they would help to substantiate the claim.

[00:03:47] Speaker 01:
So I agree that as a legal matter, it's been set forth as a two-part test, which I think makes sense based on the way that the statute is written.

[00:03:56] Speaker 01:
It distinguishes a little bit between the general duty to assist, which is where you get the reasonable possibility language, and then the specific duty to assist when it relates to private medical records

[00:04:07] Speaker 01:
versus service medical records versus VA medical examinations, the statute is expansive.

[00:04:13] Speaker 04:
And where in the Court of Appeals decision do you see the court having misapplied that legal standard, adopted a different and erroneous legal test?

[00:04:27] Speaker 01:
Yes, it's on Appendix Page 11, Your Honor.

[00:04:33] Speaker 01:
The court errs on both prongs of the test, is what we're arguing.

[00:04:38] Speaker 01:
So the first error is determining that the records weren't relevant, even though they relate to the benefits being claimed.

[00:04:46] Speaker 01:
But then the second error does relate to prong two, which you brought up.

[00:04:50] Speaker 05:
Isn't the question of relevance a fact question, evaluating evidence?

[00:05:00] Speaker 01:
Often it is.

[00:05:01] Speaker 01:
Here it's a question as a matter of law.

[00:05:03] Speaker 01:
So what this court said in Goltz is that the Veterans Court is allowed to look at the evidence before it to determine if records that seem irrelevant, so don't relate to the claim, may in fact have a reasonable possibility of helping us substantiate the claim.

[00:05:21] Speaker 01:
To your question, Judge Bryson, the Veterans Court made

[00:05:26] Speaker 01:
misinterpreted the statute and made an unlawful initial factual finding, determining that the records had, quote, no possibility of substantiating Mr. Ebel's claim.

[00:05:38] Speaker 01:
But this court said in more that it fails to understand how the Veterans Court, without examining the records, can have any ideas to whether they would or would not, on the merits, support the claim.

[00:05:50] Speaker 01:
So this was error because not only was it an improper initial factual finding,

[00:05:56] Speaker 01:
But the Veterans Court lacks the medical expertise that's required to know whether current medical records could possibly prove nexus.

[00:06:07] Speaker 01:
That goes against not only the facts and more, but also against a Veterans case called McClendon, which basically illustrates that as it relates to CFR 3.159,

[00:06:23] Speaker 01:
medical expertise is required to make medical judgments and so here what the court did is it took the veterans statement discussing the contents of the records and made an ultimate factual determination on the merits even though the board had never weighed whether or not these private medical records were relevant.

[00:06:45] Speaker 01:
So this court said in Sullivan, the second part of Sullivan, that

[00:06:50] Speaker 01:
That exceeds an appellate court's jurisdiction.

[00:06:53] Speaker 01:
It, under no circumstances, can make an initial factual finding.

[00:06:57] Speaker 04:
Well, let me ask you about that, because that bears on the question, I guess, ultimately of harmless error.

[00:07:06] Speaker 04:
And here, the Veterans Court did make a finding of harmless error with respect to the failure of the board to discuss the medical records issue.

[00:07:18] Speaker 04:
I take it that after Sanders and Newhouse, it's pretty clear.

[00:07:26] Speaker 04:
Tell me if you disagree.

[00:07:27] Speaker 04:
But it seems to me pretty clear that one area in which the Court can make a factual determination is in determining whether there's harmless error.

[00:07:39] Speaker 04:
Would you agree with that?

[00:07:40] Speaker 01:
Yes, Your Honor, here the Veterans Court did not make a harmless error determination as it related to relevance and the duty to assist.

[00:07:49] Speaker 01:
They only made the prejudicial error analysis on the reasons and basis argument that appears on appendix page 12.

[00:07:59] Speaker 01:
And so I think that there are a couple of different ways to parse that legal error.

[00:08:04] Speaker 01:
Initially, getting it wrong that the duty to assist wasn't triggered

[00:08:09] Speaker 01:
is certainly a prejudicial error because it means that the veteran is not going to get his private medical records, which we've been able to obtain and would be happy to send to the Veterans Court on remand.

[00:08:23] Speaker 01:
He won't even have those records reviewed.

[00:08:25] Speaker 01:
So the reasonable possibility that they could substantiate his claim doesn't get fulfilled.

[00:08:31] Speaker 01:
So that's certainly prejudicial.

[00:08:33] Speaker 01:
I think second, though, maybe the more legal question

[00:08:37] Speaker 01:
is whether there's harmless error if, as in Goltz, records that aren't relevant and don't have a reasonable possibility of substantiating the claim aren't retrieved.

[00:08:50] Speaker 01:
And we would agree with this court's holding in Goltz that if they're not relevant and they don't have a reasonable possibility of helping to substantiate the claim, not getting them is harmless error.

[00:09:00] Speaker 01:
Here, though, that's not what happened.

[00:09:03] Speaker 01:
Does that answer your question?

[00:09:05] Speaker 01:
Thank you.

[00:09:05] Speaker 03:
Yes.

[00:09:06] Speaker 03:
You also suggest that there was an error in failing to satisfy the duty of CIS by not obtaining his military medical records, but as I understand it, the holding below is that basically you didn't give sufficient information for the government to have identified anything else.

[00:09:28] Speaker 03:
Where is it that you think the veteran at some point alerted the government to the presence of

[00:09:36] Speaker 03:
other records that they didn't obtain?

[00:09:38] Speaker 00:
Sure.

[00:09:39] Speaker 01:
So that's on appendix pages 108 to 109.

[00:09:43] Speaker 01:
That's actually the second time that the veteran identifies it.

[00:09:46] Speaker 01:
So he initially raises this in 2009.

[00:09:50] Speaker 01:
And then there are a series of grants and remands dealing with his ear claim as well.

[00:09:56] Speaker 04:
In what form did he raise the location of the military records issued before his testimony before the board?

[00:10:05] Speaker 01:
Sure, he raised it, I believe, in his initial claim.

[00:10:08] Speaker 01:
I'm not exactly sure.

[00:10:10] Speaker 04:
Do you know where that is in the record?

[00:10:12] Speaker 01:
I don't right now, but I'd be happy to bring it on your bottle.

[00:10:15] Speaker 04:
OK, yeah, thanks.

[00:10:18] Speaker 00:
So he raises it in 2009.

[00:10:19] Speaker 00:
OK, wait, I'm sorry.

[00:10:21] Speaker 00:
I'm on pages 108 and 109.

[00:10:23] Speaker 03:
What is it that you think that he said that alerts the government to the presence of military records?

[00:10:31] Speaker 01:
Sure, so these are the court martial records.

[00:10:35] Speaker 01:
Everything in the government.

[00:10:38] Speaker 03:
Yes, but so here's the problem I have.

[00:10:40] Speaker 03:
To the extent that you identified a location, it seems to me the government went to each of those locations and searched for medical records and could find none.

[00:10:49] Speaker 03:
Then otherwise, it seems to me all the veterans said as well, my records could be, have been sent to a court martial proceeding.

[00:10:57] Speaker 03:
He alerted the government to no information about who the court martial proceeding would have been of.

[00:11:03] Speaker 03:
Or it seems specifically exactly where the court martial even took place or the exact dates of the court martial.

[00:11:09] Speaker 03:
I feel as though if we were to agree with you, we would be creating a really overwhelming burden and placing it upon the government that if the veteran alleges that his military records could have been moved to Europe.

[00:11:25] Speaker 03:
Go find them.

[00:11:26] Speaker 03:
I don't see any specificity.

[00:11:29] Speaker 03:
Unfortunately, the veteran cannot recall the name of the court-martialed individuals or the precise location of the dates or anything.

[00:11:36] Speaker 03:
And so it just seems way too ambiguous to suggest that this puts a burden on the government.

[00:11:42] Speaker 01:
Respectfully, he does identify at least one person, Sergeant Brewer, who he believes was required to.

[00:11:48] Speaker 03:
No, Sergeant Brewer was not a person who was being court-martialed.

[00:11:51] Speaker 03:
Sergeant Brewer was just someone else who he thought was another potential witness.

[00:11:55] Speaker 03:
And what he said is, and I think Sergeant Brewer either retired somewhere in Germany or somewhere in California.

[00:12:00] Speaker 03:
There were two different people.

[00:12:01] Speaker 03:
One, he said, I think they retired to Germany.

[00:12:03] Speaker 03:
The other, he said, I think they retired to California.

[00:12:05] Speaker 03:
And that was not the person.

[00:12:08] Speaker 03:
who he believes was being court-martialed.

[00:12:12] Speaker 03:
It was rather another witness.

[00:12:13] Speaker 03:
So the records wouldn't have been associated with Sergeant Brewer.

[00:12:18] Speaker 03:
So now are you suggesting that if a veteran identifies a person who might know something about where records could possibly be located, that the military has an obligation to go find that retired person and question them in order to satisfy its burden?

[00:12:33] Speaker 01:
No, Your Honor.

[00:12:34] Speaker 01:
What I'm suggesting is that when the veteran identifies

[00:12:36] Speaker 01:
categories of records, the word all in the statute requires that the government look at each type of category.

[00:12:45] Speaker 01:
In its formal finding of unavailability, the government only looked at clinical treatment records.

[00:12:51] Speaker 01:
It did not even make a cursory attempt to look at

[00:12:54] Speaker 01:
courts martial records.

[00:12:56] Speaker 03:
But I'm suggesting that you didn't identify them with specificity.

[00:12:59] Speaker 03:
If a veteran says, go find my medical records, the government does not have an obligation to go to every possible VA clinic in the world to try to see if he was there.

[00:13:11] Speaker 01:
No, but a simple Google search reveals

[00:13:13] Speaker 01:
one Sergeant Brewer who was in Germany during the 1960s and could have reasonably been him.

[00:13:20] Speaker 03:
So the government doesn't have... But Sergeant Brewer is not alleged to be the person, by your client, not alleged to be the person who was being court-martialed.

[00:13:28] Speaker 03:
Your client suggested that his medical files could be with the court-martial files.

[00:13:32] Speaker 03:
Those would not be files in Sergeant Brewer's possession or in the name of Sergeant Brewer.

[00:13:38] Speaker 03:
They'd be in the name of whoever the court-martial proceedings were about.

[00:13:41] Speaker 01:
Presumably, but we don't know that.

[00:13:43] Speaker 01:
Mr. Abels has asked his congressman for help.

[00:13:46] Speaker 01:
He's tried to separately identify and locate Mr. Brewer, but he has an uphill battle in that he doesn't have any more information than the VA does.

[00:13:56] Speaker 04:
As to this issue, I understand that this service medical records issue was not raised before the CAVC.

[00:14:03] Speaker 04:
Is that correct?

[00:14:04] Speaker 01:
Yes, Your Honor.

[00:14:05] Speaker 04:
It wasn't raised?

[00:14:06] Speaker 04:
Correct.

[00:14:06] Speaker 04:
So how can it be the case that the CAVC made a legal error

[00:14:11] Speaker 04:
which is the predicate for our review on an issue that wasn't even raised.

[00:14:16] Speaker 01:
Sure.

[00:14:16] Speaker 01:
So the CAVC determined that Abel's claim had been properly adjudicated and that all of the relevant evidence was before it.

[00:14:28] Speaker 01:
And we would argue that as a matter of law, that's incorrect.

[00:14:32] Speaker 04:
You mean it's incorrect for them to say that there was not a legal error in that

[00:14:40] Speaker 04:
the way the case has been presented to them, and you say that if there was an issue that wasn't presented to them as to which you think there was a legal error, then their adoption, their affirmance of the board is itself legal error?

[00:14:57] Speaker 04:
Is that what you're saying?

[00:14:58] Speaker 01:
So yes, 7292 and Morgan would indicate that this court can fix legal error wherever it exists.

[00:15:06] Speaker 01:
We would argue the main legal error occurred in the private medical records sphere.

[00:15:11] Speaker 01:
But under Sullivan, this court did exercise jurisdiction over a duty to assist claim that was not specifically made to the Veterans Court because it was likely to occur on remand.

[00:15:21] Speaker 01:
And so what we would like is to remand on the private medical records, which we have and would like to send to VA,

[00:15:28] Speaker 01:
And then additionally, to remand on the duty to assist with regard to his service medical records.

[00:15:35] Speaker 05:
Ms.

[00:15:35] Speaker 05:
Geiser, your time has expired, but since you've been answering a lot of questions, we'll give you two minutes for rebuttal.

[00:15:41] Speaker 01:
Thank you, Judge.

[00:15:43] Speaker 05:
Mr. Gamaldi.

[00:15:51] Speaker 02:
May it please the Court?

[00:15:52] Speaker 02:
Good morning, Your Honors.

[00:15:53] Speaker 02:
The Secretary respectfully requests that this Court dismiss the appeal or in the alternative affirm.

[00:15:58] Speaker 02:
the decision of the Veterans Court.

[00:16:00] Speaker 02:
If Your Honors wouldn't mind, I'd like to first approach the Western orthopedics records, the private records, and then the service medical records, sort of the order that was my colleague addressed.

[00:16:10] Speaker 02:
OK, please.

[00:16:10] Speaker 04:
Before we get to that, let me just ask you on the jurisdictional question.

[00:16:14] Speaker 04:
The appellant is arguing that the court applied the wrong legal test on the question of whether there is

[00:16:27] Speaker 04:
a pertinent and irrelevant injury.

[00:16:32] Speaker 04:
That seems to me to be a legal question.

[00:16:36] Speaker 04:
If that's what the court did.

[00:16:39] Speaker 04:
Well, they're saying that the court did that, that the court made a legal error.

[00:16:44] Speaker 04:
Now, they may be wrong in that

[00:16:47] Speaker 04:
The test they propose may not be right or the court may not have committed said legal error.

[00:16:53] Speaker 04:
But isn't the argument that the court committed a legal error itself a legal argument that we have jurisdiction to attend to?

[00:17:01] Speaker 02:
And, you know, I apologize, Your Honor.

[00:17:03] Speaker 02:
The name of the case is escaping me.

[00:17:04] Speaker 02:
But this Court is tasked with looking at the crux of an argument.

[00:17:08] Speaker 02:
What is the argument actually saying, not how it's framed?

[00:17:11] Speaker 02:
So certainly, anyone can frame any argument to be a legal question.

[00:17:15] Speaker 02:
But we need to look at what actually is being argued here.

[00:17:18] Speaker 02:
And what's being argued here is a misapplication of the Goal standard to the facts of this case.

[00:17:26] Speaker 02:
That's application of law to fact.

[00:17:28] Speaker 02:
So look behind the actual statements that this is a pure legal question, to quote them from their brief.

[00:17:34] Speaker 02:
And you see that we're talking about.

[00:17:35] Speaker 04:
Well, I have to say, I was a little surprised at the appellant's position with respect to Goals this morning.

[00:17:40] Speaker 04:
Because I had thought that their position was that Moore established that

[00:17:45] Speaker 04:
there is really only one test, which is, is the injury the same injury or the same location in the body?

[00:17:55] Speaker 04:
Today, they seem to be saying, well, no, that Goltz is correct, that there are two different components of the test, but at least with respect to the position they took in the brief, as I understood it, it seems to me that's a pure legal question.

[00:18:08] Speaker 04:
Is there a one-part test or a two-part test?

[00:18:12] Speaker 02:
There is a two-part test.

[00:18:13] Speaker 04:
Well, maybe there is and maybe there isn't, but that's a legal question.

[00:18:17] Speaker 04:
Sure.

[00:18:18] Speaker 02:
Well, Your Honor, if the allegation was that a wrong test was used, that there was a different legal test that should have been used, yes, Your Honor, I agree with you that there would be jurisdiction.

[00:18:28] Speaker 02:
It's not how I read the briefing.

[00:18:30] Speaker 02:
I certainly read the briefing that they skipped goals in the opening brief.

[00:18:34] Speaker 03:
Well, that's OK, because you skipped more in your reading.

[00:18:37] Speaker 02:
I did.

[00:18:38] Speaker 02:
Preparing for this argument, I immediately regretted that, Your Honor, because I should have addressed it.

[00:18:42] Speaker 02:
Moore did come first.

[00:18:43] Speaker 02:
Goals came after.

[00:18:44] Speaker 02:
And we do believe that Goals is the correct standard.

[00:18:48] Speaker 02:
My research has shown is that the case that is often cited here- Oh, wait.

[00:18:51] Speaker 03:
If Moore came first and Goals came after, and you're saying Goals is the correct standard, you say that as though they are different standards.

[00:18:56] Speaker 03:
And then that couldn't be- Oh, no.

[00:18:58] Speaker 02:
I apologize, Your Honor.

[00:18:59] Speaker 02:
Yes.

[00:19:00] Speaker 02:
May I clarify our view on Moore, then?

[00:19:02] Speaker 02:
Yes.

[00:19:02] Speaker 02:
No, Moore was applying the Goals standard.

[00:19:07] Speaker 02:
Certainly one important difference here.

[00:19:11] Speaker 03:
Right.

[00:19:12] Speaker 02:
If the test is equivalent, Your Honor, it's the same test.

[00:19:19] Speaker 02:
Certainly what they're looking at in more was very different than what they were looking at in goals.

[00:19:24] Speaker 02:
And the reason why first was that there was a misinterpretation of a regulation in more.

[00:19:31] Speaker 02:
There was an issue about mental illness.

[00:19:33] Speaker 03:
But here, she is my understanding that your opponent is arguing there's a misinterpretation of the definition of relevant.

[00:19:42] Speaker 03:
Correct.

[00:19:43] Speaker 03:
Well, that's a legal question.

[00:19:45] Speaker 03:
If what the meaning of the word relevant is, as it appears in the legal text, it seems to me is certainly a legal question.

[00:19:53] Speaker 03:
And so she's suggesting that under Moore, the case law indicates that

[00:19:59] Speaker 03:
You satisfy the test for relevance if it is a medical record related to the exact same injury for which you're seeking compensation, full stop.

[00:20:09] Speaker 03:
Goltz went further, is my understanding of her argument, in elaborating on the test, in a scenario where the person is seeking medical records that are related to a different injury than the one being sought disability records for.

[00:20:25] Speaker 03:
Do you agree with that?

[00:20:26] Speaker 02:
Well, certainly in Goles, he was seeking a record related to a different injury.

[00:20:33] Speaker 02:
But Goles doesn't have any language in it that limits it to that application.

[00:20:38] Speaker 03:
But could Goles overrule more?

[00:20:40] Speaker 02:
I think they're consistent, Your Honor.

[00:20:41] Speaker 03:
Could be.

[00:20:42] Speaker 03:
Is it possible?

[00:20:42] Speaker 03:
I didn't ask about that.

[00:20:43] Speaker 02:
Oh, no.

[00:20:43] Speaker 02:
Is it possible?

[00:20:44] Speaker 02:
No, I believe the first case controls, Your Honor.

[00:20:47] Speaker 03:
Correct.

[00:20:48] Speaker 03:
So if the first case controls and if the first case says the relevance test is met, if it is

[00:20:55] Speaker 03:
a record that goes to the exact disability for which you're seeking compensation, exact injury, could Goltz have come along afterwards and changed that test?

[00:21:06] Speaker 02:
It cannot change the test, but I don't believe that Moore is so limited in how it's actually a written record.

[00:21:11] Speaker 04:
Why don't you tell us how you read Moore?

[00:21:13] Speaker 04:
Because I think we're going to go there, and that's important, at least, to this

[00:21:21] Speaker 02:
Absolutely, Your Honor.

[00:21:22] Speaker 02:
And certainly in Moore, there was a big difference between Moore and Goles in the present case because there was an allegation of a misinterpretation of 38 CFR 4.1 in that case.

[00:21:34] Speaker 02:
Mr. Veteran Moore suffered from a mental illness, and the way that he was rated was based upon a single action demonstrating that mental illness.

[00:21:45] Speaker 02:
But when rating mental illness, one must look at the entire history of the individual.

[00:21:50] Speaker 02:
to determine whether or not it was an isolated instant of demonstrating the mental illness or prolonged instance over time.

[00:21:57] Speaker 03:
Does the opinion say that?

[00:21:58] Speaker 03:
Does the opinion say in it, in order to assess the mental illness as opposed to a physical disability, you have to look at this entire history?

[00:22:06] Speaker 03:
Does the opinion make that distinction that you're asking us to draw?

[00:22:09] Speaker 02:
If I'm remembering correctly, I think the words I remember were abate and recur, Your Honor.

[00:22:14] Speaker 02:
I hopefully have highlighted the correct words here.

[00:22:17] Speaker 02:
Because the position that the United States took

[00:22:20] Speaker 02:
in Moore, excuse me, that the Veterans Court took in Moore was that records that predated could not be relevant to the mental illness.

[00:22:35] Speaker 02:
And that was a misinterpretation right there, Your Honors.

[00:22:38] Speaker 02:
So certainly there was jurisdiction in Moore right there.

[00:22:41] Speaker 02:
We have a misinterpretation, a misunderstanding on how to rate an individual with mental illness.

[00:22:47] Speaker 02:
Goals was certainly different.

[00:22:48] Speaker 02:
Now, Goals is talking about two different... I guess I still don't understand.

[00:22:52] Speaker 03:
I really need to understand the government's impression of the rule of law that comes from the presidential decision of Moore.

[00:23:01] Speaker 03:
And I guess I don't fully understand it yet, because I'm trying to figure out how Moore and Goltz fit together.

[00:23:08] Speaker 03:
Certainly.

[00:23:08] Speaker 03:
Because, quite frankly, the facts in this case are much, much more consistent with the facts that were present in Moore.

[00:23:15] Speaker 04:
And in particular, to follow up on Judge Moore's question, if you could focus on the language which is on 1375, which is the critical language, at least for my purposes,

[00:23:28] Speaker 04:
Of goals, Your Honor?

[00:23:30] Speaker 04:
Of goals.

[00:23:30] Speaker 04:
Okay.

[00:23:31] Speaker 04:
Talking about triplers, records are relevant on their face because Moore is seeking disability compensation for the same disability.

[00:23:42] Speaker 04:
So that's the, to me at least, that's the crux of the problem for your reading of Moore.

[00:23:50] Speaker 04:
And how do you deal with that?

[00:23:52] Speaker 04:
So if you have the West

[00:23:57] Speaker 04:
It's at the bottom of the left-hand column.

[00:24:00] Speaker 02:
Correct, Your Honor.

[00:24:01] Speaker 02:
What the distinction between goals is that it's very explicit where what Moore is talking about is sort of, it goals is specific in the sense that it considers harmless error explicitly in announcing the two-part test.

[00:24:15] Speaker 02:
Is it related to the injury?

[00:24:18] Speaker 02:
Will it help substantiate the claim?

[00:24:20] Speaker 02:
Looking at what Moore said, Moore says basically the same thing without announcing a two-part test.

[00:24:26] Speaker 02:
It certainly says that on its face, it's irrelevant because it's related.

[00:24:29] Speaker 02:
But then it goes on.

[00:24:30] Speaker 02:
It says, given that Moore was hospitalized after apparent suicide attempt and was thereafter deemed unfit retention of the military, the records of his hospitalization may well contain evidence that he suffers from a serious and perhaps chronic psychiatric disorder.

[00:24:44] Speaker 02:
So they're saying right there that these records could help substantiate his claim because his disagreement with the VA was that he had a chronic problem.

[00:24:54] Speaker 02:
not a one-episode issue.

[00:24:56] Speaker 02:
So Moore, while not announcing a two-part test, takes one through the same analysis that Goulds was very explicit about afterwards.

[00:25:05] Speaker 02:
So that's how those two cases work together.

[00:25:09] Speaker 03:
So if the VA found a problem with this claim and the records could substantiate that problem that they found or be relevant to that problem, then you believe they're relevant under Moore and Goulds.

[00:25:23] Speaker 03:
Yes, because the goals test is... Okay, so let's look at page 215 of the appendix, please.

[00:25:29] Speaker 03:
What is this document that I'm looking at?

[00:25:31] Speaker 02:
This is Dr. Graves' medical examination, a VA doctor.

[00:25:43] Speaker 03:
Right.

[00:25:43] Speaker 03:
This is the medical examination.

[00:25:45] Speaker 03:
In fact, it's quoted and relied upon by the board in its decision, right?

[00:25:48] Speaker 03:
Oh, yeah.

[00:25:50] Speaker 03:
In fact, this part is quoted and relied upon.

[00:25:53] Speaker 03:
I'd say the third sentence from the bottom of that rationale paragraph, with the evidence available, there is a lack of information about his original injury and the degree of disability that exists today.

[00:26:10] Speaker 03:
So this doctor was troubled by these two things, information about his original injury and

[00:26:20] Speaker 03:
Certainly, the degree of disability that exists today is not pertaining to his original injury, right?

[00:26:26] Speaker 03:
That's pertaining to the degree of disability that exists today.

[00:26:31] Speaker 03:
How can you possibly tell me that documents from a private physician that he is consulting within the last couple of years related to this exact disability are not relevant to the degree of disability that exists today?

[00:26:49] Speaker 02:
Well, because they would be, if that was a question, still open.

[00:26:55] Speaker 03:
But that was a question based on the medical examiner.

[00:26:57] Speaker 03:
And that exact question was repeated in the board's view, which they adopted.

[00:27:01] Speaker 02:
I apologize, Your Honor.

[00:27:02] Speaker 02:
But on page 11 of the appendix, this is the VA, the Veterans Court decision.

[00:27:07] Speaker 03:
We're looking at the Veterans Court decision, the board decision.

[00:27:11] Speaker 02:
Yes, Your Honor.

[00:27:11] Speaker 03:
This is the quote in the board's decision.

[00:27:14] Speaker 02:
I completely agree.

[00:27:14] Speaker 02:
But let's recall that the Veterans Court found that the board did error.

[00:27:19] Speaker 02:
in not asking for these documents, but went through this analysis and found no prejudicial error.

[00:27:25] Speaker 02:
The reason why, specifically for the question of the current condition that Mr. Abels is currently suffering, is because the VA acknowledged his current condition.

[00:27:36] Speaker 02:
So that element of service connection, the VA conceded.

[00:27:39] Speaker 02:
And that, I can quote the sentence here in the Veterans Court decision.

[00:27:42] Speaker 03:
Wait, I'm sorry.

[00:27:43] Speaker 03:
Can the Veterans Court decision make fact, can the Veterans Court make fact findings outside of just deciding whether something's harmless error?

[00:27:50] Speaker 02:
Well, the Veterans Corps was just recognizing what the VA had conceded, Your Honor.

[00:27:54] Speaker 03:
Let's look at the board decision, because the board decision reflects what the VA decided.

[00:27:59] Speaker 03:
Isn't it?

[00:28:00] Speaker 02:
I mean, the open question that prevented Mr. Abels from receiving benefits was not current condition.

[00:28:08] Speaker 02:
It was not the incident.

[00:28:12] Speaker 02:
It was nexus.

[00:28:13] Speaker 02:
That's the problem.

[00:28:14] Speaker 02:
The court and Veterans Court says, therefore, the records of recent treatment of Appellant's left knee would be irrelevant because VA has acknowledged Appellant's current conditions.

[00:28:25] Speaker 02:
So what the Veterans Court is saying is the current condition of Mr. Abels has been conceded by VA.

[00:28:33] Speaker 02:
It is not an element of service connection that needs to be proved.

[00:28:36] Speaker 02:
What needs to be proved is service connection.

[00:28:38] Speaker 03:
I'm sorry, but I failed to understand how a sentence that says the VA acknowledges his current condition

[00:28:44] Speaker 03:
response to the concern that the medical doctor had and the board had regarding the degree of disability that exists today.

[00:28:53] Speaker 03:
I guess the sentence that you just read, it doesn't seem to me... Well, I'll keep reading because the next sentence helps as well, Your Honor.

[00:29:01] Speaker 02:
The element of service connection that appellant has yet to establish is not presence of current disability, but rather causal nexus, and goes on to quote,

[00:29:11] Speaker 02:
this Court as to about causal nexus.

[00:29:15] Speaker 04:
It's a question that I have about Dr. Graves' comments, and I don't know that you'll be able to answer it because it's really a question for Dr. Graves.

[00:29:24] Speaker 04:
He did a complete examination, I'll take it.

[00:29:28] Speaker 04:
Correct.

[00:29:28] Speaker 04:
And his examination occurred in February of 2013.

[00:29:32] Speaker 04:
Dr. Crockendorffel's investigation and examination occurred in January of 2013.

[00:29:40] Speaker 04:
So they were only a month apart, roughly.

[00:29:42] Speaker 04:
How is it that Dr. Graves is saying that the degree of disability that exists today is not known when he's just finished conducting a physical examination to determine the degree of disability?

[00:29:57] Speaker 02:
That's correct, Your Honor.

[00:29:58] Speaker 02:
What is that sentence saying?

[00:30:00] Speaker 02:
Right.

[00:30:01] Speaker 02:
That question is not answered in the record.

[00:30:03] Speaker 02:
But thankfully, the question does not need to be answered because what prevented Mr. Abels from receiving service connection

[00:30:11] Speaker 02:
was the lack of causal nexus, not his current condition.

[00:30:16] Speaker 02:
And as we discussed in our brief on page four, the reason why the, and we quote in full on page four of our brief, the reason why causal nexus was not demonstrated by these Western orthopedics documents, why they could not be demonstrated, was because of the lay testimony of Mr. Abels, which stated that his doctor would not make a nexus determination.

[00:30:40] Speaker 02:
Well, I'm characterizing it, Your Honor.

[00:30:43] Speaker 02:
I can quote it in full if you'd like.

[00:30:45] Speaker 03:
Sure, go ahead.

[00:30:45] Speaker 03:
Why don't you tell me what he said?

[00:30:51] Speaker 03:
And what page it is in the record.

[00:30:52] Speaker 02:
It's page 183 of the record and also page 4 of our brief.

[00:30:56] Speaker 03:
183.

[00:31:07] Speaker 02:
And now what page 183 is, Your Honor, is a submission by Mr. Abels from February of 2013, so I guess a month after his meeting with the doctor.

[00:31:18] Speaker 02:
And he says, quote on page, this is page 183 and the fourth paragraph, quote, I inquired if Dr. Kay could attribute my knees, shoulder, hip, and hand conditions to my 1964 injuries in the US Army.

[00:31:32] Speaker 02:
Dr. Kay stated he could not, due to time over 40 years,

[00:31:36] Speaker 02:
no evidence of broken bones, and tissues as cartilage and tendons are difficult to affix at time of damage.

[00:31:44] Speaker 02:
However, Dr. K did state that it may be more than coincidental that I suffer such a large number of painful orthopedic issues, and a common or primary cause appears to be very reasonable deduction.

[00:31:54] Speaker 03:
So based on this is just his lay testimony.

[00:31:58] Speaker 03:
This guy isn't a doctor, and he didn't have in order to present his private military records to you, which

[00:32:05] Speaker 03:
We don't know what those private military or private records written by Dr. K actually say on this point, do we?

[00:32:13] Speaker 02:
No.

[00:32:13] Speaker 02:
And Your Honor, I just found out today that they are in possession of Mr. Abels from my colleague.

[00:32:18] Speaker 02:
And I would have loved to have seen these during the litigation.

[00:32:20] Speaker 02:
It could have informed my decision on this case.

[00:32:23] Speaker 02:
But I did not receive them.

[00:32:24] Speaker 02:
I don't know what we say.

[00:32:25] Speaker 02:
Well, we do know what they say from.

[00:32:28] Speaker 03:
But we don't know what these documents say.

[00:32:30] Speaker 03:
But we know this is the exact same injury

[00:32:33] Speaker 03:
as he's seeking a disability for.

[00:32:35] Speaker 03:
And we know that Dr. K has at least verbally, or this veteran has represented that Dr. K has at least verbally said, it's a very reasonable deduction.

[00:32:46] Speaker 03:
They all came from a primary injury.

[00:32:48] Speaker 03:
It seems more than coincidental.

[00:32:50] Speaker 03:
I mean, it seems to me that Dr. K is, according to this veteran, hedging or uncertain, maybe potentially uncertain.

[00:33:00] Speaker 03:
But he said that Dr. K did say something.

[00:33:04] Speaker 03:
about the likelihood.

[00:33:05] Speaker 03:
So why, if there is a private medical record, which has been reported to the government, to say something about the likelihood, something that is not totally clear based on the person's lay testimony, why wouldn't it be relevant?

[00:33:18] Speaker 03:
Because this is the issue that's at the heart of all of this, according to you, which is nexus.

[00:33:23] Speaker 03:
So Dr. K said something about nexus.

[00:33:26] Speaker 03:
We're not certain what he said.

[00:33:28] Speaker 03:
It tends against the veteran.

[00:33:30] Speaker 03:
But we're not certain what he said.

[00:33:31] Speaker 03:
He said something.

[00:33:33] Speaker 03:
Why isn't that reference that relevant?

[00:33:35] Speaker 02:
I would disagree with him.

[00:33:35] Speaker 02:
We're not certain what he said.

[00:33:36] Speaker 02:
We have the testimony from Mr. Abels here.

[00:33:39] Speaker 02:
This is Mr. Abels' delivering testimony, which he's permitted to do under 38 CFR 3.159.

[00:33:45] Speaker 02:
Component lay testimony would include his recitation of what his doctor told him.

[00:33:53] Speaker 04:
Well, but the doctors...

[00:33:55] Speaker 04:
Presumably, the doctor's report will not be put in exactly the same terms.

[00:34:00] Speaker 04:
It would be surprising if he uses exactly the same language that the lay witness is using.

[00:34:08] Speaker 04:
Well, let me ask you another question, if I could.

[00:34:11] Speaker 04:
To go back to a point that we touched on in your opposing counsel's argument, the determination of harmless error

[00:34:22] Speaker 04:
from the Court does seem to be limited to the failure to give reasons and explanation for the private medical records issue.

[00:34:37] Speaker 04:
It is, it, it, it, do you read what the Court has done to be addressed to Parmasar also with respect to the issue of

[00:34:49] Speaker 02:
Relevance or instead just be a determination of no relevance period without What I think the Veterans Court is doing here your honor what we believe the Veterans Court is doing my opinion doesn't matter what we think is that The board is the body that should have initially determined whether or not the Western orthopedics documents are

[00:35:12] Speaker 02:
met the goal standard.

[00:35:13] Speaker 04:
Right.

[00:35:14] Speaker 04:
And having failed to do so, that sort of sets up the argument that the court should have set it back for the board to go ahead and do what they're supposed to do.

[00:35:24] Speaker 04:
But they didn't do that.

[00:35:25] Speaker 02:
Correct.

[00:35:25] Speaker 02:
They did not.

[00:35:25] Speaker 04:
And the reason is, what is the justification for their having not done that?

[00:35:30] Speaker 02:
Right.

[00:35:30] Speaker 02:
So why can now the Veterans Court go ahead and do it initially?

[00:35:35] Speaker 02:
As we've already discussed today, the Veterans Court can make fact findings.

[00:35:38] Speaker 02:
And when we're talking about prejudicial error.

[00:35:41] Speaker 04:
Only in the harmless error set.

[00:35:42] Speaker 04:
Correct.

[00:35:42] Speaker 04:
But then that runs up, it seems to me, against your opposing counsel's argument that that was a harmless error was only invoked with respect to the reasons issue.

[00:35:53] Speaker 02:
But what is the second part of the goals standard?

[00:35:56] Speaker 02:
It is harmless error.

[00:35:57] Speaker 02:
Whether or not these documents could help substantiate the claim.

[00:36:01] Speaker 04:
I don't think of that as harmless error.

[00:36:03] Speaker 02:
Well, it certainly is, Your Honor, because we're saying these documents, was there a mistake that actually harmed Mr. Abels by not discussing them and not receiving them?

[00:36:15] Speaker 02:
If Your Honors have no further questions, we respectfully request the court dismiss the appeal.

[00:36:19] Speaker 05:
Thank you, Mr. Grimaldi.

[00:36:20] Speaker 05:
Thank you.

[00:36:22] Speaker 05:
Ms.

[00:36:22] Speaker 05:
Geiser, you'll have three minutes for a vote.

[00:36:25] Speaker 01:
Thank you, Your Honor.

[00:36:31] Speaker 01:
Your Honor, what we've just been discussing is the prong to error out of Goltz, that there was no way without viewing the records based on a lay summary statement of a discussion with a doctor, not medical records, that the Veterans Court, which lacks medical expertise to know what types of information could show not only current severity but service nexus for Mr. Abels' claims,

[00:37:00] Speaker 01:
This court, as far back as Moore, said it doesn't understand how the Veterans Court could know those records were not relevant or specifically, quote, had no possibility of substantiating the claim.

[00:37:17] Speaker 01:
So I think the case law is specific.

[00:37:20] Speaker 01:
And as far back as McGee, which I believe is the first duty to assist case out of this court,

[00:37:26] Speaker 01:
McGee's claim was for records that the court said very specifically may or may not tend to support his claim.

[00:37:34] Speaker 01:
But as this court explained in Goltz, citing Black's law dictionary and its definition of relevance, something is relevant if it tends to prove or disprove the claimant issue.

[00:37:45] Speaker 04:
I think what- And the Court of Appeals concluded that in this case, it didn't.

[00:37:52] Speaker 04:
It didn't tend to prove.

[00:37:54] Speaker 04:
My question to you is what is the legal issue that you, what would we say by way of the legal error that the Court of Appeals committed was, now fill in the blank.

[00:38:05] Speaker 01:
Yes, the Court of Appeals committed the legal error of making a factual finding in the first instance that medical records for which it lacked the appropriate expertise required by regulation 3.159 to review could not substantiate the claim.

[00:38:24] Speaker 01:
It is, I would argue, it's impossible for any medical professional to know whether something absolutely could not.

[00:38:34] Speaker 01:
But certainly it's impossible for an appellate court in the first instance to make a factual finding of impossibility on the merits.

[00:38:43] Speaker 01:
That is legal error, as this court explains in Sullivan, because it exceeds the appellate jurisdiction of the court.

[00:38:50] Speaker 01:
It's legal error under 3.159 because

[00:38:53] Speaker 01:
It lacks the required medical expertise to make a medical decision.

[00:39:00] Speaker 04:
Unless it's viewed as a harmless error issue.

[00:39:03] Speaker 01:
Which, Your Honor, I agree with you.

[00:39:06] Speaker 01:
It couldn't be viewed as a harmless error situation.

[00:39:08] Speaker 01:
That makes sense for the reasons and bases.

[00:39:11] Speaker 01:
On the 5103A issue, either the duty to assist the veteran attaches or it does not.

[00:39:18] Speaker 01:
If it attaches, then the failure to retrieve relevant records

[00:39:23] Speaker 01:
and to proceed with the adjudication of the claim on the merits without all the relevant information is, of course, prejudicial error.

[00:39:33] Speaker 03:
Can I ask, is one of your legal arguments that you think would be responsive to Judge Bryson potentially the definition of relevant and that this decision by the Veterans Court on its face would fly in direct contrast with the definition of relevant that was articulated in Moore and as such would create

[00:39:53] Speaker 03:
conflict in our precedent by suggesting that the very set of facts that kind of run all fours with more don't meet the definition of relevance as defined by the Court?

[00:40:02] Speaker 01:
Yes, Your Honor.

[00:40:03] Speaker 01:
I think this Court has been consistent, and I think that the Veterans Court misinterpreted this Court's precedent on the relevance issue.

[00:40:13] Speaker 05:
Thank you, Counselor.

[00:40:14] Speaker 05:
We'll take the case under review.