[00:00:00] Speaker 01:
for argument is 18-1764 Blythe versus Wilkie.

[00:00:41] Speaker 02:
Let's wait for the other side to get federal.

[00:00:44] Speaker 02:
I thought I'd get an early advantage.

[00:00:52] Speaker 01:
OK, we're ready to go.

[00:00:53] Speaker 02:
Good morning.

[00:00:55] Speaker 02:
Good morning, Your Honors.

[00:00:56] Speaker 02:
My name is Mark Lippert, representing the appellant.

[00:01:00] Speaker 02:
We have argued that the case Massey really has no legs to stand on.

[00:01:06] Speaker 02:
There's no textual support in 38 USC 7104 or 38 CFR 20.202.

[00:01:14] Speaker 02:
That would support distinguishing between pro se and represented claimants.

[00:01:22] Speaker 02:
There's also no legislative or regulatory history to support this distinction.

[00:01:30] Speaker 02:
And even if we look at policy, which is the last factor,

[00:01:34] Speaker 02:
that the court generally looks at and interpreting statutes and regulations doesn't support Massey either.

[00:01:45] Speaker 01:
But isn't it universally applied?

[00:01:48] Speaker 01:
Or don't we at least think about that as an adjudicatory body or even an administrative agency?

[00:01:54] Speaker 01:
I'm looking at it a different way than you.

[00:01:57] Speaker 01:
You're looking at it as if someone who is represented gets treated differently.

[00:02:01] Speaker 01:
I look at it as if whether a pro se litigant, whether one arguably at least thinks about cutting a little slack given that the person is unrepresented, isn't that an acceptable way to proceed to give that pro se defendant a little leeway?

[00:02:22] Speaker 02:
No, I don't think that's the right way to look at it.

[00:02:26] Speaker 02:
I think that you have to look at it as

[00:02:29] Speaker 02:
The VA is a non-adversarial inquisitorial system.

[00:02:34] Speaker 02:
It's not like anything as an adversarial system.

[00:02:41] Speaker 02:
I think that's hard.

[00:02:41] Speaker 02:
It's a hard concept to get because American jurisprudence is overwhelmingly, predominantly adversarial.

[00:02:51] Speaker 02:
And so what we think of it when we start attacking something so unique, what we're not used to, is consciously or unconsciously or subconsciously

[00:02:59] Speaker 02:
We tend to slip in adversarial concepts.

[00:03:04] Speaker 02:
The point is that it's the VA's primary duty to identify issues and to develop the record.

[00:03:13] Speaker 02:
The attorneys are participants.

[00:03:17] Speaker 02:
They're not adversaries of the VA.

[00:03:21] Speaker 02:
They're working together, at least that's the way it's supposed to be, to try to get the veteran all of his entitled benefits.

[00:03:28] Speaker 01:
But at some point, shouldn't, whether the adjudicatory body is the CABC or us, have the ability to say, you've got to have raised this below?

[00:03:39] Speaker 01:
If not, it's a ping pong.

[00:03:41] Speaker 01:
I mean, your client's case, I think, has already gone back twice.

[00:03:44] Speaker 01:
I mean, it's been around for a lot of years.

[00:03:47] Speaker 01:
And to allow new issues to be raised at the CABC level just means there's going to be another bounce back.

[00:03:54] Speaker 02:
Well, not necessarily.

[00:03:56] Speaker 02:
In other words,

[00:04:01] Speaker 02:
The court here should have addressed, I mean, they spent more time going over the issue exhaustion analysis rather than dealing with the merits.

[00:04:10] Speaker 02:
If you look at the pages of the Veterans Court.

[00:04:13] Speaker 01:
Well, isn't it something that somebody below should have adjudicated before the CABC?

[00:04:16] Speaker 01:
Yeah, it should have been the board.

[00:04:18] Speaker 01:
Yeah, the board should.

[00:04:19] Speaker 01:
So the relief would be appropriate if exhaustion had no applicability here.

[00:04:25] Speaker 01:
It would be sent back, right?

[00:04:27] Speaker 01:
OK.

[00:04:28] Speaker 01:
Well, that was my point that to allow a system that never allows any exhaustion to be accounted for even at the CAVC level means that there's just going to be a constant bounce back of cases.

[00:04:46] Speaker 01:
I mean, that's what will have to happen here in your case if you were to prevail, right?

[00:04:50] Speaker 01:
Be set back again.

[00:04:52] Speaker 02:
No.

[00:04:53] Speaker 02:
What would happen is

[00:04:55] Speaker 02:
the case would be remanded back to the Veterans Court to decide the merits.

[00:05:00] Speaker 02:
They could say, there's no error, or it's Harmer's error.

[00:05:03] Speaker 02:
We just want to make sure that we're able to argue.

[00:05:05] Speaker 01:
You don't think the CAVC, if it gets this issue that hasn't been litigated or adjudicated or considered by the BVA, is going to feel compelled to remand it back to them?

[00:05:17] Speaker 02:
No.

[00:05:18] Speaker 02:
No.

[00:05:18] Speaker 02:
I mean, the question is whether or not, what they raise is whether it was

[00:05:24] Speaker 02:
whether the examinations were adequate.

[00:05:28] Speaker 00:
Is that a factual question?

[00:05:31] Speaker 00:
I would have thought that that's been treated as a factual question.

[00:05:34] Speaker 00:
And therefore, it has an initial matter for the board to address, not for the CAVC to address.

[00:05:42] Speaker 02:
No, they both.

[00:05:45] Speaker 02:
They would both address it.

[00:05:46] Speaker 02:
In other words, whether or not the issue.

[00:05:48] Speaker 00:
Can the CAVC address a factual question in the first instance?

[00:05:55] Speaker 02:
I mean, they would if the... I mean, I'm not sure if I understand what you mean by a factual issue.

[00:06:05] Speaker 02:
I mean, I understand the distinction, but the court addresses the adequacy of the examination issues all the time, whether they've been raised below or not.

[00:06:16] Speaker 05:
Are you saying this was new information that arose at that stage that hadn't previously

[00:06:23] Speaker 05:
had an opportunity to be presented?

[00:06:26] Speaker 02:
No.

[00:06:27] Speaker 02:
What happened here is he did raise this issue below, before the board.

[00:06:31] Speaker 02:
And if you look at the court's analysis, they acknowledged it.

[00:06:36] Speaker 02:
They said that he raised the issue, but he didn't renew the issue the next time around.

[00:06:41] Speaker 05:
Are you talking about raising an issue or raising evidence related to the issue?

[00:06:47] Speaker 02:
No.

[00:06:47] Speaker 02:
There wasn't new evidence on that point, no.

[00:06:52] Speaker 05:
So what would be different if it were remanded back?

[00:07:01] Speaker 02:
Well, there was new evidence.

[00:07:05] Speaker 02:
I apologize.

[00:07:06] Speaker 02:
Before the second denial, the appellant raised

[00:07:18] Speaker 02:
the issue of the adequacy of the exams because there wasn't a personal exam.

[00:07:26] Speaker 02:
It was ultimately remanded.

[00:07:29] Speaker 02:
They got another record review for the psychologist.

[00:07:35] Speaker 02:
And I believe he argued it, saying that basically the first VA examiner who personally examined it was more probative than the one that

[00:07:48] Speaker 02:
the subsequent one that didn't examine it, didn't examine the client.

[00:07:52] Speaker 02:
So I mean, I think he raised it.

[00:07:55] Speaker 02:
But since that's a factual show, I didn't argue that for this court.

[00:07:59] Speaker 02:
But I mean, if you look at this as a typical case, it's really pretty insidious what the Veterans Court did.

[00:08:07] Speaker 05:
Well, assuming that the foundation of how well we're trying to come out is that the veteran had appropriate due process opportunity,

[00:08:17] Speaker 05:
and all the rest of it, and to understand that if there was some reasonable basis, some change in the veterans' situation or in the evidence produced, to assure that there was an opportunity for that to be considered.

[00:08:35] Speaker 05:
But I'm looking here to find where those events may have occurred, and I can't find them in your argument.

[00:08:44] Speaker 02:
Where we raised the issue?

[00:08:46] Speaker 02:
I don't think I understand your question.

[00:08:48] Speaker 05:
Do I understand what it is that would be different on a remand?

[00:08:57] Speaker 02:
The difference on a remand would argue to the board that the second psychologist's opinion, which was just based on a record review, should not be considered adequate.

[00:09:09] Speaker 02:
And that therefore, the other VA examiner, Dr. Berg, who did review,

[00:09:16] Speaker 02:
who did perform a personal examination and did the record review and made it came to an affirmative opinion of service connection would be followed.

[00:09:27] Speaker 05:
But that was considered.

[00:09:28] Speaker 05:
That evidence was already there.

[00:09:32] Speaker 05:
That isn't anything that it was excluded.

[00:09:35] Speaker 05:
Is that right?

[00:09:37] Speaker 02:
I mean, the board

[00:09:46] Speaker 02:
I don't believe that the board may have considered it, but I don't think the board did it correctly.

[00:09:50] Speaker 02:
And that's why we're at the court.

[00:09:53] Speaker 02:
I mean, there's a lot of times when the board makes a decision and considers it and goes wrong.

[00:09:58] Speaker 02:
And so that's why that we were arguing it, that how can you have a valid psychiatric examination without interviewing the client?

[00:10:08] Speaker 01:
But the argument in this case is that you had your offer.

[00:10:11] Speaker 01:
There was an opportunity to challenge that.

[00:10:13] Speaker 01:
when this case was here before, this is the third time around that it's come up the chain, right?

[00:10:18] Speaker 01:
And you sought a joint remand with the government to consider Dr. Berg or Ms.

[00:10:24] Speaker 01:
Berg or whatever, and that if you were challenging the other opinions at that time, that should have been part of the basket.

[00:10:31] Speaker 01:
That's helpful to your client, not hurtful, to get him to raise the concerns promptly so that he can get his case adjudicated, right?

[00:10:41] Speaker 01:
I agree.

[00:10:42] Speaker 01:
And why did you not?

[00:10:44] Speaker 01:
Are you claiming that that initial remand, you did preserve it, and you did raise it below at the board?

[00:10:51] Speaker 02:
Yes, we did.

[00:10:51] Speaker 02:
Or that you didn't?

[00:10:51] Speaker 02:
Yeah, if you look at the answer to your question, the last one, is we did.

[00:10:58] Speaker 00:
If you look at the... This is the footnote in the October 2016.

[00:11:03] Speaker 02:
No, there's one on the joint appendix page 130.

[00:11:10] Speaker 02:
It said, in light of the above, service connection.

[00:11:14] Speaker 02:
I'll wait till you guys get there.

[00:11:16] Speaker 02:
This is the last full paragraph.

[00:11:19] Speaker 01:
130.

[00:11:22] Speaker 02:
It says, in light of the above, service connection for Mr. Blythe's sleep disorder should be granted.

[00:11:33] Speaker 02:
The only opinion to be based upon an examination of the veteran rather than simply review of the service medical records

[00:11:40] Speaker 02:
concludes that primary insomnia began while Mr. Blythe was on active duty.

[00:11:47] Speaker 02:
As set forth in the Joint Motion Berging Man, the lack of an actual examination of Mr. Blythe rendered prior examinations inadequate.

[00:11:55] Speaker 02:
As the only opinion regarding the sleep disorder, and there are two different disorders, there's the sleep apnea, but the psychological disorder is the sleep disorder, based upon actually seeing Mr. Blythe in person, his favorable service connection must be granted.

[00:12:10] Speaker 02:
I mean, I really think the better support is just creating obstacles just so that the decision can get affirmed.

[00:12:23] Speaker 02:
I mean, the lawyers did their job.

[00:12:26] Speaker 00:
And this document was before the joint motion for remand?

[00:12:31] Speaker 00:
The second joint motion for remand.

[00:12:34] Speaker 02:
Right.

[00:12:35] Speaker 02:
Right.

[00:12:36] Speaker 02:
This was the thing.

[00:12:39] Speaker 02:
I believe it was before the second board denial in December of 2015.

[00:12:43] Speaker 02:
Yes.

[00:12:43] Speaker 02:
No.

[00:12:44] Speaker 02:
So I don't see where we have to constantly keep raising the argument.

[00:12:51] Speaker 02:
The point is pretty clear that we don't believe that psychological examinations, when you do not interview a client, are adequate.

[00:13:00] Speaker 02:
I mean, how many times do you need to say that?

[00:13:06] Speaker 01:
We're into your rebuttal.

[00:13:07] Speaker 01:
Why don't we hear from the government?

[00:13:21] Speaker 03:
Good morning.

[00:13:21] Speaker 03:
Good morning, and may it please the court.

[00:13:23] Speaker 03:
Anbach review is unwarranted, and the judgment should be affirmed.

[00:13:27] Speaker 03:
With respect to the colloquy that you've, this morning, thus far, is really focused on factual issues, which are, of course, beyond the court's jurisdiction.

[00:13:35] Speaker 03:
The issues that the briefs have focused on are really twofold.

[00:13:38] Speaker 01:
One is whether or not... No, I know that, but can you engage in the argument he was making there?

[00:13:45] Speaker 01:
I mean, so leaving aside for a moment that you would say if the real issue he was raising in this case was error because we had in fact preserved the issue and the CAVC was wrong, leaving aside whether we have jurisdiction to review that.

[00:13:59] Speaker 01:
Why is he wrong?

[00:14:01] Speaker 01:
about the fact that he did raise it before the BBA?

[00:14:05] Speaker 03:
Well, Your Honor, in the Veterans Court's decision below, ages seven to eight of the appendix, it walks through the opportunities that Mr. Blythe had to raise the new argument.

[00:14:16] Speaker 03:
The new argument being that these other medical evaluations were inadequate.

[00:14:21] Speaker 03:
And the two opportunities that it focuses on are, one, in the July 2016 joint motion for a remand,

[00:14:29] Speaker 03:
which post dates the document that he directed your attention to a moment ago.

[00:14:33] Speaker 03:
And that's on pages 82 to 86 of the appendix.

[00:14:36] Speaker 03:
And secondarily, when the remand went back to the board, and there were proceedings before the board in the first instance to consider the issues, the board.

[00:14:46] Speaker 01:
That was in 2016 or 2017?

[00:14:48] Speaker 03:
That was after July 2016.

[00:14:49] Speaker 03:
It was remanded to the board.

[00:14:52] Speaker 03:
And at page 132 of the appendix, you have Mr. Blythe's brief.

[00:14:56] Speaker 03:
an October 2016 brief.

[00:14:59] Speaker 03:
And the Veterans Court discussed that, acknowledged that he had made arguments about the medical evaluations and the evidence that was before the board, but that he did not make the specific argument that he made before the court in the first instance.

[00:15:15] Speaker 03:
So the Veterans Court properly construed the record as saying that this indeed was a new argument.

[00:15:21] Speaker 03:
And in that regard, it's appropriate to invoke the issue exhaustion principle.

[00:15:26] Speaker 03:
The court said on page 8 of the appendix, it was referring to the October 2016 brief, that although Mr. Blythe had argued that the opinions of Dr. Burton and Dr. Thaler were not based upon an examination of Mr. Blythe, the court noted that this was primarily an argument that Ms.

[00:15:46] Speaker 03:
Bird's opinion was sufficient and not that the others were inadequate.

[00:15:50] Speaker 03:
So that was a reasonable construction of the record that the court

[00:15:55] Speaker 03:
used in order to arrive then.

[00:15:56] Speaker 01:
But what you just directed our attention to on a 132, appendix 132, the court has granted two motions for remand.

[00:16:05] Speaker 01:
In the first remand, the parties agreed that examinations that relied upon a review of the service medical records alone without examining Mr. Blythe were inadequate.

[00:16:18] Speaker 01:
But you're suggesting that doesn't mean that those examinations themselves were inadequate, but had to do with

[00:16:24] Speaker 01:
Dr. Bergs?

[00:16:26] Speaker 01:
Your Honor, yes.

[00:16:29] Speaker 03:
My suggestion is that the Veterans Court considered this document, interpreted it as saying, really, the argument that he's making is that Dr. Misberg, her opinion should have been considered and relied upon rather than the others, because there was an examination.

[00:16:47] Speaker 03:
And notwithstanding that cursory statement that he did not preserve the issue,

[00:16:52] Speaker 01:
Well, what is the issue?

[00:16:53] Speaker 01:
I mean, the adequacy.

[00:16:54] Speaker 01:
I mean, he made the argument that they didn't examine him personally, so they should not be given credit.

[00:17:01] Speaker 01:
That was an issue in play, was it not?

[00:17:04] Speaker 03:
Well, Your Honor, I don't think it was in play.

[00:17:06] Speaker 03:
I think that the Veterans Court recognized that, particularly when you had the joint motion for remand, the joint motion for remand recognized the parties together, represented by counsel on both sides, identified an issue that needed to be addressed on remand.

[00:17:21] Speaker 03:
And the joint motion for remand in and of itself is it's incumbent on the parties to identify specifically and clearly identify what issues need to be addressed before the board.

[00:17:31] Speaker 03:
When it was sent back to the board, the board is then evaluating that issue.

[00:17:36] Speaker 03:
Now, of course, that does not deprive the veteran or Mr. Blythe from then making the argument that he made later before the board.

[00:17:45] Speaker 03:
But the entire purpose of issue exhaustion is to make sure

[00:17:48] Speaker 03:
that in the first instance, the board in this case considers all of the issues.

[00:17:53] Speaker 03:
And that's notwithstanding the duty to assist or the duty to construe pleadings in a liberal manner, which the court addressed in Robinson.

[00:18:01] Speaker 00:
I guess I'm confused about.

[00:18:03] Speaker 00:
So let me try to identify the following scenario.

[00:18:08] Speaker 00:
Let us suppose, and I think you disagree with this and maybe even the Veterans Court disagreed with it, that in November 2015, I'm looking at 130 and 132,

[00:18:18] Speaker 00:
that at that point, this is still in front of the board for the December 2015 board ruling, so hence before that second joint motion on remand.

[00:18:31] Speaker 00:
Suppose that this document did in fact make the argument that each of what, two of the three examinations other than Ms.

[00:18:41] Speaker 00:
Berg that did not involve a personal examination, I think Dr. Hamm did because he was doing the

[00:18:49] Speaker 00:
the sleep study, that those examinations were not just inadequate relative to Ms.

[00:18:57] Speaker 00:
Burgs, but in fact were simply inadequate.

[00:19:00] Speaker 00:
And then the board decides what it decides.

[00:19:06] Speaker 00:
There's an appeal.

[00:19:07] Speaker 00:
You agree that there should be a remand on whatever the subject of the remand was.

[00:19:17] Speaker 00:
Does that agreement on remand require that the argument that was already had been decided by the board based on 130, by assumption,

[00:19:31] Speaker 00:
and was part of his appeal to the Veterans Court be renewed or is a remand something that can be to address an aspect of the record that really ought to be addressed before the whole set of arguments is addressed by the Veterans Court?

[00:19:51] Speaker 03:
Your Honor, I think the answer is it may depend on the circumstances.

[00:19:56] Speaker 03:
And I think in this case, when you have a joint motion for remand, that actually in the

[00:20:01] Speaker 03:
July's 2016 joint motion for remand, the parties asked that the board's decision be vacated, asked that the board go back and examine a discrete issue.

[00:20:12] Speaker 03:
Under those circumstances, it is incumbent upon the parties to identify all the issues, renew an issue that may have been raised before.

[00:20:20] Speaker 03:
So assuming, and we don't agree that that 2015 pleading is construed, but you're asking me to assume

[00:20:26] Speaker 03:
that it does raise that argument expressly.

[00:20:28] Speaker 00:
So what basis is there for saying that when you go to the Court of Appeals, the Veterans Court, and you've got four arguments, and the parties say, it would really be a stupid idea to decide this matter when there's something that really needs to be supplemented.

[00:20:47] Speaker 00:
And so we agree to a remand for the supplement.

[00:20:51] Speaker 00:
the other three or four arguments that are being made, what would be the point of saying they have to be renewed before the board?

[00:20:58] Speaker 03:
Well, I think it goes back to the notion of issue exhaustion that the court was considering in Magit and that is inherent in the regulation at 20.202 in the statute, which is that even though you have this duty to construe evidence liberally, that it is incumbent upon the veteran to present issues

[00:21:20] Speaker 03:
at each stage of the proceedings and clearly identify before the board in this instance, because I think, to your question earlier, I think this is probably a factual issue.

[00:21:29] Speaker 03:
You want to have the board consider something like the adequacy of a medical examination.

[00:21:33] Speaker 00:
Right.

[00:21:33] Speaker 00:
But what I was, I guess, trying to explore is the scenario that if this November 2015 document did

[00:21:45] Speaker 00:
The first round in the board or maybe it's even the second round, but anyway, not the last round before the board did raise the issue so that the board actually did decide the issue.

[00:21:55] Speaker 00:
then when you go to the Veterans Court, you don't have a board undecided issue that you're trying to raise.

[00:22:03] Speaker 00:
You have a board decided issue, but just not repetitively.

[00:22:07] Speaker 03:
Well, Your Honor, I think it may make a difference, and I hope this answers your question.

[00:22:10] Speaker 03:
It may make a difference as to whether or not the board actually decides the issue at the earlier stage.

[00:22:16] Speaker 03:
So if an issue has been raised and the board reaches a decision on it, and then there's a remand,

[00:22:23] Speaker 03:
it may change the calculus as to whether or not the veteran has to raise it again.

[00:22:28] Speaker 03:
But in this case, the board didn't pass on it.

[00:22:30] Speaker 03:
So the problem arises where, and this kind of gets the ping pong concern, and this court's decision in Dickens is really on all fours with the facts in this regard.

[00:22:41] Speaker 03:
Because when you have a joint motion for remand, which was basically the facts in the Dickens case, the parties have to identify the issues that go back.

[00:22:51] Speaker 03:
If they don't do that,

[00:22:52] Speaker 03:
Or if they choose to wait, or the veteran chooses to wait on an objection that could have been raised at that point, then he runs the risk of a waiver.

[00:23:02] Speaker 03:
But I really do want to emphasize that the Veterans Court has discretion whether or not to hear it in the first instance.

[00:23:07] Speaker 03:
In this case, and this goes back to, I think, the jurisdictional point I was making, really the only issue that you have, apart from the en banc review issue, is his criticism of the massive case, which I'm happy to address.

[00:23:22] Speaker 03:
But really, as it relates to the Veterans Court's decision, there is no legal issue and there's no error because the Veterans Court was exercising what MAGIT says it can exercise.

[00:23:33] Speaker 03:
That is, look at the record, consider whether the veterans had an opportunity to raise the argument, and if so, decide whether or not to hear it in the first instance or to remand for that matter.

[00:23:42] Speaker 01:
Wait, so your view is that we don't have jurisdiction to review

[00:23:46] Speaker 01:
Assuming that we agree that they have some discretion that's appropriately exercised under the statute to apply an issue exhaustion principle, we don't have the jurisdiction to review the merits of that.

[00:23:59] Speaker 03:
Yes, Your Honor.

[00:23:59] Speaker 03:
I think the court's decision in Bozeman from 2016 recognized that, and the Dickens case did as well.

[00:24:06] Speaker 03:
There certainly can be legal issues that arise in the context of issue exhaustion that the court can review.

[00:24:12] Speaker 03:
Mr. Blythe is not asking the court, at least until

[00:24:16] Speaker 03:
reached the podium to examine the facts of the case.

[00:24:21] Speaker 03:
Principally, his argument is seeking to do away with the issue of exhaustion doctrine.

[00:24:25] Speaker 01:
We don't think that that requires... So why don't you respond to one of his initial arguments, which was this global argument about the adjudication of this and why it... and legal representation and how that's not this system.

[00:24:41] Speaker 03:
Sure, Your Honor.

[00:24:42] Speaker 03:
I guess there are two components to that.

[00:24:43] Speaker 03:
One is

[00:24:44] Speaker 03:
the so-called non-adversarial nature of VA proceedings.

[00:24:48] Speaker 03:
And the court in Scott considered the non-adversarial nature of VA proceedings when it reaffirmed the rule in Magit and said issue exhaustion is still a doctrine that applies and has force in the context of veterans' appeals, notwithstanding the fact that, for example, the board has to construe pleadings liberally.

[00:25:10] Speaker 03:
So the court has considered this.

[00:25:12] Speaker 03:
It does make sense.

[00:25:12] Speaker 03:
Although you do have

[00:25:15] Speaker 03:
a pro-claimant system.

[00:25:17] Speaker 03:
It does make sense, as the court has found.

[00:25:20] Speaker 05:
So let's say the claimant offers to us some facts, which on their face, if accepted, could reasonably change the result.

[00:25:32] Speaker 05:
We don't find those facts, but now there has been some sort of cloud placed on the absolute discretion whereby we have no authority

[00:25:44] Speaker 05:
to review the facts.

[00:25:47] Speaker 05:
We, on occasion, again, looking to assure that the veteran received the full procedures in a non-adversarial situation and also constitutionally, have sent it back.

[00:26:00] Speaker 05:
Why is this any different?

[00:26:02] Speaker 03:
Your Honor, it's different in the sense that the Veterans Court, well, two responses.

[00:26:07] Speaker 03:
One is, of course, we're talking here about the Veterans Court.

[00:26:11] Speaker 03:
considering issue exhaustion as opposed to this court.

[00:26:14] Speaker 03:
But really, the other main distinction is there are no new facts.

[00:26:19] Speaker 03:
There's no new evidence.

[00:26:21] Speaker 03:
This is not a situation where new evidence comes to light.

[00:26:24] Speaker 05:
The issue exhaustion... Well, we're told there's new evidence at another medical opinion, which changes the balance.

[00:26:33] Speaker 03:
Well, actually, Your Honor, I'm not sure that you could characterize

[00:26:38] Speaker 03:
Dr. Berg's opinion as new evidence because it was in the record all along.

[00:26:43] Speaker 05:
I'm not sure either.

[00:26:44] Speaker 05:
The real question is what procedure in order to assure optimum non-adversarial attention to the veterans claim that everything is considered.

[00:26:55] Speaker 03:
Well, Your Honor, the veterans courts, the way the issue exhaustion doctrine works is if there is a situation where there's new information that has come to light and there hasn't been an opportunity to raise it earlier,

[00:27:07] Speaker 03:
And it comes up, for example, let's say, at the Veterans Court.

[00:27:11] Speaker 03:
Surely, the Veterans Court can, consistent with the rule in Magic, remand back to the board to examine that evidence.

[00:27:18] Speaker 03:
And that would be an appropriate exercise of the court's discretion to do that and to remand.

[00:27:23] Speaker 03:
That's not the rule of this case.

[00:27:25] Speaker 03:
And that's not the rule that Mr. Blythe wants the court to overturn.

[00:27:28] Speaker 03:
What he wants the court to overturn is the notion that any time a veteran makes a new argument that he did have the opportunity

[00:27:36] Speaker 03:
to raise below and did not pursue that therefore the court should hear the argument in the first instance.

[00:27:43] Speaker 03:
And the court in Magid recognized that there are important objectives of finality and judicial economy that are served by the exhaustion principle.

[00:27:54] Speaker 03:
And so getting to the point about representation by counsel, I would just observe that the court in Massey did not draw any sort of categorical rule between veterans who are represented and those who are not.

[00:28:06] Speaker 03:
What it observed is that, in that case, because the veteran was represented by counsel, in those particular circumstances, it was appropriate to invoke the issue exhaustion doctrine.

[00:28:18] Speaker 03:
Not because he was represented by counsel, but because he had an opportunity to raise his argument below, and he didn't do it.

[00:28:25] Speaker 03:
And the attorney didn't offer a sufficient justification for why he didn't do that.

[00:28:31] Speaker 03:
And the veteran's court has not interpreted Massey any differently.

[00:28:35] Speaker 03:
In some cases, it has weighed the balancing test in favor of the veteran.

[00:28:38] Speaker 03:
In other cases, it's done it the other way.

[00:28:41] Speaker 03:
But it is a flexible test.

[00:28:43] Speaker 03:
So for these reasons, we respectfully request that the court deny a banquer view and affirm the judgment below.

[00:28:49] Speaker 03:
Thank you.

[00:28:58] Speaker 02:
I wanted to follow up just with the point that Your Honor is asking about whether it was raised.

[00:29:05] Speaker 02:
page 132 of the appendix.

[00:29:08] Speaker 05:
What page?

[00:29:08] Speaker 02:
132.

[00:29:10] Speaker 05:
Oh, OK, yes.

[00:29:13] Speaker 05:
That's the one.

[00:29:14] Speaker 02:
That's the one.

[00:29:15] Speaker 02:
OK, so this one was in October of 2016.

[00:29:18] Speaker 02:
Now, if you look at the first or second paragraph, you'll read part of it.

[00:29:25] Speaker 02:
The court has granted two joint motions for remand.

[00:29:28] Speaker 02:
In the first remand, the parties agreed that examinations that relied upon review of the service medical records alone

[00:29:35] Speaker 02:
without examining Mr. Blythe were inadequate.

[00:29:40] Speaker 02:
And then if you skip down to the evidence of record contains only one medical opinion based upon an examination of the veteran and which addresses the relationship between the current sleep disorder and service, Dr. Phyllis Byrd.

[00:29:57] Speaker 02:
And then in the footnote, it just talks about the others were not based on examination.

[00:30:02] Speaker 02:
I mean, I don't even think the footnote's necessary.

[00:30:04] Speaker 02:
It's pretty clear.

[00:30:05] Speaker 02:
what his challenge is.

[00:30:06] Speaker 05:
So you're requesting a further remand.

[00:30:14] Speaker 05:
Is this veteran barred from starting again in the regional office?

[00:30:19] Speaker 02:
Well, you're never barred from, but you'd lose your effective date, which would be, since this case has been going a long time, which would be quite prejudicial.

[00:30:30] Speaker 02:
You could always file a new claim to reopen, but it would start the date.

[00:30:34] Speaker 02:
Its effective date would start the date

[00:30:36] Speaker 02:
So this case goes back to 2010, I believe.

[00:30:40] Speaker 02:
Thank you.

[00:30:44] Speaker 01:
We thank both sides.

[00:30:45] Speaker 01:
The case is submitted.

[00:30:46] Speaker 01:
That concludes our proceedings.