[00:00:00] Speaker 02:
Good morning, all.

[00:00:01] Speaker 02:
Before we begin our proceedings, this is kind of unusual for us.

[00:00:05] Speaker 02:
So we're sitting in a different venue as we do once a year.

[00:00:09] Speaker 02:
So on behalf of the panel, I just wanted to express our gratitude to the Circuit Court and the District Court and all of their judges and all of their administrative staff who have been so helpful in accommodating us today.

[00:00:22] Speaker 02:
So thank you, Deb.

[00:00:23] Speaker 02:
And thank you for the advocates, some of whom had to travel maybe a little farther than they usually would to get to an argument in our court.

[00:00:30] Speaker 02:
The first argument this morning is 181183, DeLisio versus Wilkie.

[00:00:36] Speaker 02:
Mr. Porco, whenever you're ready.

[00:00:38] Speaker 02:
Did I mispronounce your name?

[00:00:40] Speaker 03:
You said it correct, Your Honor.

[00:00:41] Speaker 03:
Thank you very much.

[00:00:45] Speaker 03:
Good morning, Your Honors.

[00:00:46] Speaker 03:
I'm Chris Rolda-Porco here on behalf of the appellant.

[00:00:49] Speaker 03:
Thank you for this opportunity to be here.

[00:00:50] Speaker 03:
It's a privilege to be here before you today to represent Mr. DeLisio.

[00:00:55] Speaker 03:
It was now nearly four decades after he filed his initial claim in 1980 for VA disability benefits due to his military service, including disabilities caused by his exposure to Agent Orange, as well as a motor vehicle accident incurred in service.

[00:01:08] Speaker 03:
And this is now five decades after his service in Vietnam in the late 60s.

[00:01:13] Speaker 02:
But at least I understand the frustration when we see it in all these cases.

[00:01:16] Speaker 02:
But at least in your client's case, at least, he's had some success.

[00:01:21] Speaker 02:
in his travels up and down the system, right?

[00:01:24] Speaker 02:
So you're just, tell us what you're seeking today that he hasn't yet been successful in maintaining.

[00:01:29] Speaker 03:
Absolutely, Your Honor.

[00:01:30] Speaker 03:
And I'm certainly not here to restate what's already been submitted in the briefs and all that.

[00:01:34] Speaker 03:
But I would like to, obviously, clarify certain arguments and respond to some made by the appellee, Secretary of Veterans Affairs.

[00:01:39] Speaker 03:
And you're right, he has received VA disability benefits.

[00:01:44] Speaker 03:
As you put it, he's received some success.

[00:01:47] Speaker 03:
But there's still,

[00:01:49] Speaker 03:
there's still a bit of a gap as far as when his initial claim was filed to the date he was granted 100% disability benefits.

[00:01:56] Speaker 03:
I believe he's service connected 100% back to 88, if I remember correctly.

[00:02:03] Speaker 03:
And again, his initial claim was 1980.

[00:02:04] Speaker 03:
And what was before the Veterans Court back in 2011 was this 1980 claim, which was never adjudicated.

[00:02:12] Speaker 03:
That was remanded.

[00:02:14] Speaker 03:
That went to the board.

[00:02:14] Speaker 03:
That's what's before the court today.

[00:02:16] Speaker 01:
Looking at what issues are left, and the ones you presented to the court today, I'm having a hard time seeing that we actually have jurisdiction in this case.

[00:02:25] Speaker 01:
And it seems to me that you're raising the issue of the adequacy of a medical report.

[00:02:30] Speaker 01:
And the question I have related to that is, that's a question of fact.

[00:02:35] Speaker 01:
And you're asking us to simply reweigh the facts that have already been determined below.

[00:02:41] Speaker 03:
Well, Your Honor, in regards to that and in regards to the jurisdictional question whether or not this court has jurisdiction, obviously that is a predominant question here.

[00:02:50] Speaker 03:
What I'd like to turn the court's attention to on that matter is its reliance on Neves Rodriguez.

[00:02:56] Speaker 03:
It's the appendix at page three where the Veterans Court is stating that it has never required VA medical examiners to perform a complete review of the entire claims file or state they've done so in every instance.

[00:03:10] Speaker 03:
So what we're saying here before this court is that the Veterans Court misconstrues the law and what is required.

[00:03:19] Speaker 03:
And in particular, with Nieves Rodriguez, the operative words in that is in every instance.

[00:03:25] Speaker 03:
So what the Veterans Court is saying is that since it doesn't require that in every case, that it's never required.

[00:03:32] Speaker 03:
That's one of the legal issues.

[00:03:36] Speaker 02:
So you're saying they were wrong on the law

[00:03:38] Speaker 02:
That statement is incorrect as a matter of law because they should.

[00:03:46] Speaker 02:
The law requires that they provide a complete review of the entire claim and state that they have done so.

[00:03:54] Speaker 03:
What we're arguing, Your Honor, is that the Veterans Court is relying on Nieves Rodriguez to say that it doesn't require a medical examiner to state in every instance they've reviewed the entire claims file.

[00:04:07] Speaker 03:
That's a misinterpretation of the law in that there are instances in which a review of the entire record is required.

[00:04:16] Speaker 00:
And those instances, are you saying that under particular factual circumstances, they should have to look at the entire record?

[00:04:26] Speaker 00:
That's how I read your brief.

[00:04:27] Speaker 00:
Because, for example, on the bottom page 16, you talk about the facts of this case support a requirement

[00:04:36] Speaker 00:
that the VA medical examiner must do a complete review of the claim?

[00:04:41] Speaker 03:
Well, and I believe I may be seeing where you're going there.

[00:04:45] Speaker 03:
That's applying the law to the facts, which is also not something that the court has jurisdiction for.

[00:04:51] Speaker 03:
I guess what I'm predominantly arguing is that there is a requirement in some instances for the VA medical examiner to review the entire claims file.

[00:05:01] Speaker 00:
What are those instances?

[00:05:04] Speaker 03:
Well, again, that's

[00:05:05] Speaker 03:
I mean, that's a hypothetical, of course, and that's going beyond.

[00:05:08] Speaker 00:
Not a hypothetical, because you're asking us to rule in this case that there should have been a complete review and that your case is one where a complete review should have occurred.

[00:05:17] Speaker 00:
So what are the circumstances you're talking about?

[00:05:20] Speaker 03:
Sure.

[00:05:20] Speaker 03:
Well, in this particular instance, and I've mentioned it in the briefs, that the claim is files over 9,000 pages long.

[00:05:28] Speaker 03:
There's a lot of medical history there.

[00:05:30] Speaker 03:
There's a lot of lay statements from the veterans.

[00:05:31] Speaker 03:
So we've seen the VA medical examiner opinions, and there are

[00:05:35] Speaker 03:
Several of them that were after the most recent remand from the Veterans Court.

[00:05:39] Speaker 03:
We see some of the documents they referenced, but we don't know if they actually reviewed all of those lay statements by the veteran.

[00:05:46] Speaker 02:
There are potentially two issues here.

[00:05:48] Speaker 02:
One is, have they actually reviewed the stuff?

[00:05:51] Speaker 02:
They didn't say, we haven't reviewed the entire claim.

[00:05:54] Speaker 02:
I thought the other piece of this is really not whether or not they've actually reviewed it, but whether or not they have to state that they've actually reviewed it.

[00:06:03] Speaker 02:
You know, we'll write an opinion, maybe on this case.

[00:06:06] Speaker 02:
And we wouldn't state routinely, and we've reviewed every single document in this record.

[00:06:11] Speaker 02:
We just don't say that.

[00:06:12] Speaker 02:
I think everyone assumes that we've probably or likely done that, at least with respect to the relevant documentation.

[00:06:19] Speaker 02:
So I think in this case, it's not even a matter that you know that they haven't looked at it.

[00:06:24] Speaker 02:
It's just that you want them to say affirmatively, we have looked at every single document.

[00:06:32] Speaker 02:
And I don't know, where does that requirement come from?

[00:06:36] Speaker 03:
Well, again, just looking at the Neve's Rodriguez case, it talks about that it's not required to state in every case that there's been a complete review.

[00:06:45] Speaker 03:
So just by going with that, there's an inference.

[00:06:48] Speaker 02:
Or state that they have done so in every instance.

[00:06:51] Speaker 03:
Again, in every instance, the opposite word.

[00:06:53] Speaker 03:
So there's an inference there.

[00:06:55] Speaker 03:
that it's not required in every instance to review or state that you've reviewed the entire claims file.

[00:07:03] Speaker 01:
And that's because of the underlying facts of the particular cases, right?

[00:07:09] Speaker 01:
Well, of course.

[00:07:10] Speaker 01:
Each case would be.

[00:07:11] Speaker 03:
And those are factual findings, and they're outside our jurisdiction.

[00:07:15] Speaker 03:
Yes, Your Honor.

[00:07:17] Speaker 03:
It's outside this court's jurisdiction whether or not in this particular case

[00:07:21] Speaker 03:
that the VA medical examiner should have reviewed the entire claims file.

[00:07:25] Speaker 03:
But again, that's applying a lot of the facts.

[00:07:27] Speaker 03:
I'm just saying, just based on the legal argument alone, that the VA medical examiner is required to state that they've reviewed the entire claims file.

[00:07:36] Speaker 03:
So that is an issue.

[00:07:37] Speaker 00:
Do you agree, though, that you're saying that the VA medical examiners have to perform a complete review and state that they have done so in some circumstances, right?

[00:07:49] Speaker 03:
I'm sorry, can you repeat that, Your Honor?

[00:07:50] Speaker 00:
Do I understand correctly that your position is that the VA medical examiners have to perform a complete review or state as much in particular circumstances?

[00:08:00] Speaker 03:
Yes, Your Honor.

[00:08:00] Speaker 00:
Then what is wrong with the in-every-instance language that you've identified?

[00:08:08] Speaker 03:
Well, what is wrong is that the Veterans Court here misconstrues it to say that it's

[00:08:15] Speaker 03:
since it's not required in every instance that it's never required.

[00:08:19] Speaker 03:
So that's the legal issue that we're arguing today, is that how the Veterans Court interpreted those words in this case.

[00:08:29] Speaker 02:
Can I ask you about, there's another issue in this case that you've raised, and the government, I think,'s position is that you waived it.

[00:08:36] Speaker 02:
But it has to do with noncompliance with the remand order here.

[00:08:40] Speaker 02:
So why don't you first take on why that isn't waived?

[00:08:43] Speaker 02:
In other words, can you identify

[00:08:46] Speaker 02:
where it was raised in the record below.

[00:08:48] Speaker 02:
And two, if it was, talk about the merits of that.

[00:08:52] Speaker 03:
Are you talking about where it was raised in the most recent Veterans Court case?

[00:08:56] Speaker 03:
Yeah.

[00:08:58] Speaker 03:
Well, I don't have the Veterans Court briefs in front of me, but I do believe that issue was raised at that level.

[00:09:05] Speaker 02:
So how do you think they failed to just

[00:09:07] Speaker 02:
Leaving that aside for a moment.

[00:09:09] Speaker 02:
You're saying the board failed to comply with the previous remand by the CAVC, right?

[00:09:16] Speaker 03:
Yes, Your Honor.

[00:09:17] Speaker 02:
How so?

[00:09:18] Speaker 03:
A lot of it does hinge on the inadequate medical examinations and what was required pursuant to them.

[00:09:27] Speaker 02:
Is that the same issue?

[00:09:28] Speaker 02:
Does that allied with the issue we've just been discussing about whether or not the board stated that they had reviewed the entire file?

[00:09:35] Speaker 03:
It is very similar, Your Honor, yes.

[00:09:38] Speaker 01:
Yes.

[00:09:39] Speaker 01:
So Counselor, you really don't know whether the entire medical file was reviewed or not?

[00:09:44] Speaker 03:
That's exactly right, Your Honor.

[00:09:46] Speaker 03:
Without the VA medical examiner stating that, we don't know that.

[00:09:49] Speaker 03:
So that's why that declarative statement is helpful to know exactly whether or not they did review it.

[00:09:58] Speaker 03:
I mean, otherwise, we're speculating that they reviewed it or not.

[00:10:01] Speaker 03:
And I understand, Your Honor, you're

[00:10:03] Speaker 03:
You don't, in your opinion, say, well, you've reviewed all of the documents before the court.

[00:10:07] Speaker 03:
It's assumed you have.

[00:10:09] Speaker 03:
But in this particular instance, excuse me, in this particular.

[00:10:13] Speaker 01:
It seems to me that you can make that argument in all cases.

[00:10:20] Speaker 01:
You can say, well, the opinion doesn't go into this particular area.

[00:10:26] Speaker 01:
And because of that reason, I don't think that the

[00:10:29] Speaker 01:
that the court reviewed, or that that part of the file was ever actually reviewed.

[00:10:35] Speaker 01:
And Your Honor, that goes to correct the problem.

[00:10:36] Speaker 03:
We don't know what the VA medical examiner reviewed.

[00:10:38] Speaker 01:
You're pitching the speculation to the court.

[00:10:41] Speaker 03:
Well, Your Honor, the speculation is what the VA medical examiner reviewed.

[00:10:45] Speaker 03:
And we don't know that without them stating that they have.

[00:10:47] Speaker 02:
Well, isn't there some sort of presumption of validity?

[00:10:50] Speaker 02:
I mean, in some of our opinions, for example, we will put in at the end, if we think of it.

[00:10:55] Speaker 02:
And we've considered all the other appellant arguments and find them unpersuasive.

[00:10:59] Speaker 02:
Sometimes we do that.

[00:11:01] Speaker 02:
Sometimes we don't.

[00:11:03] Speaker 02:
But I think we're assuming that everyone assumes that we've reviewed all of the issues before us and considered that and reached our resolution.

[00:11:12] Speaker 02:
So I guess I'm having a hard time.

[00:11:14] Speaker 02:
You're advocating what would be a rule, which is the CAVC, the Veterans Appeals, has to state affirmatively that they've reviewed

[00:11:25] Speaker 02:
We don't accept that they've reviewed the relevant material.

[00:11:28] Speaker 02:
They have to state it.

[00:11:30] Speaker 02:
If not, we send it back, right?

[00:11:33] Speaker 02:
That's what you're saying?

[00:11:34] Speaker 03:
Well, Your Honor, what we're saying is that the VA medical examiner is required to, at least in certain circumstances, review the entire claims file.

[00:11:43] Speaker 03:
In those circumstances, they have to state they've done so.

[00:11:46] Speaker 03:
And that is what the Veterans Court even said, basically.

[00:11:50] Speaker 02:
Well, what they have to do, and I think we all agree, is they have to consider the issues and they have to give a reasons and bases for deciding one way and not the other.

[00:12:00] Speaker 02:
And you can argue whether they've done that or not here, but I think it's likely that they have, or that at least it's not reviewable by us and the CAVC thought they had, right?

[00:12:10] Speaker 03:
Well, even from what you're asking, Your Honor, I believe that still goes into speculation of what they have and have not reviewed.

[00:12:15] Speaker 03:
But I see that I'm in my rebuttal time, Your Honor.

[00:12:17] Speaker 03:
So for now, I'll defer to counsel.

[00:12:40] Speaker 04:
Good morning.

[00:12:41] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:12:43] Speaker 04:
This Court lacks jurisdiction over Mr. DeLisio's appeal because the only thing he's challenging is the factual determinations by the Board or, at the very most, the application of law to fact by the Veterans Court.

[00:12:56] Speaker 04:
As this Court has pointed out, the determination of whether a medical opinion is adequate or not is a factual determination that the Board makes in the first instance and the Veterans Court reviews for clear error.

[00:13:09] Speaker 04:
under 38 USC 7292, this court does not review that.

[00:13:14] Speaker 04:
And all of the challenges that Mr. DeLizio raises go to the adequacy of the medical opinions.

[00:13:20] Speaker 00:
What about the reliance on the Nieves Rodriguez case, and in particular the argument we heard today that the board used the quote in its opinion at page appendix three, used that quote to suggest that it's never that the

[00:13:38] Speaker 00:
the medical examiner never has to indicate that they've performed a complete review of the entire claims.

[00:13:46] Speaker 04:
Let me make sure I understand your honest question.

[00:13:55] Speaker 00:
I just want to hear your response to the appellant's legal argument.

[00:13:59] Speaker 00:
He says he made a legal argument this morning.

[00:14:02] Speaker 00:
I want to hear your response to why that's not legal or why it is that the

[00:14:08] Speaker 04:
Board did not or the Court of Veterans Appeals did not do what the appellant has said that it did well, I disagree with with mr. Jalisco's argument that the court misconstrued the law in either Nivus Rodriguez or in at appendix 3 There is no requirement that the Medical examiner state affirmatively that they've reviewed the entire case

[00:14:37] Speaker 04:
And I don't think this opinion at Appendix 3 can be read to say that.

[00:14:43] Speaker 04:
You're never required to say that.

[00:14:44] Speaker 04:
I mean, the medical opinion, I think there's no magic words that it needs to use.

[00:14:53] Speaker 04:
And there's no statutory or regulatory.

[00:14:55] Speaker 01:
There's no requirement.

[00:14:57] Speaker 01:
How are we assured that relevant facts have been reviewed?

[00:15:02] Speaker 04:
Well, Your Honor, the test for the adequacy of review

[00:15:06] Speaker 04:
by looking at what evidence there is in the record that cuts counter to the conclusions that were drawn.

[00:15:13] Speaker 04:
And here, Mr. DiLisio does not identify anything in the record that would suggest that the medical examiners omitted a review of something or misunderstood some medical evidence or misapplied it.

[00:15:26] Speaker 04:
He only says that they did not review the entire claims file, but he does not point to any single bit of information that should have, in his opinion, gone the other way or changed the medical opinions.

[00:15:36] Speaker 04:
So Mr. DiLisio, he had the medical opinions here after they were issued.

[00:15:43] Speaker 04:
He was sent a letter with attaching these opinions and saying, you're free to submit any evidence, any argument.

[00:15:52] Speaker 04:
You wish he didn't do that.

[00:15:53] Speaker 04:
He still hasn't identified anything that would suggest that there's been an inadequate review here by the medical professional.

[00:16:02] Speaker 02:
Well, he complains that they didn't talk to his client.

[00:16:05] Speaker 04:
He does, Your Honor.

[00:16:08] Speaker 04:
But aside from that general statement, he doesn't identify anything that his client would have said that would have made a difference.

[00:16:15] Speaker 00:
Does he have to do that when he's limited to arguing legal errors or constitutional errors before this court?

[00:16:25] Speaker 04:
Well, exactly, Your Honor.

[00:16:27] Speaker 04:
That would be a factual determination.

[00:16:28] Speaker 04:
I think that would be unreviewable by this court.

[00:16:30] Speaker 04:
But he didn't argue that below either.

[00:16:32] Speaker 04:
He didn't argue the Veterans Court where

[00:16:34] Speaker 04:
the factual determinations to say that if only my client had the ability to speak with medical examiners, he would have provided this additional information that now undermines the validity of those two medical opinions.

[00:16:47] Speaker 04:
And the medical opinions here, they're both in the record, Appendix 150 and 153, both state that they have reviewed the medical records.

[00:16:57] Speaker 04:
And neither states that there's anything missing or something that precluded review by

[00:17:03] Speaker 04:
by the two medical professionals that they weren't able to find or get their hands on.

[00:17:10] Speaker 04:
So there's no indication here, even if this court were to reach the factual determination, which this court is precluded by statute from doing, there's no determination here.

[00:17:19] Speaker 04:
There's no indication here, I'm sorry, in the record that the review was inadequate.

[00:17:24] Speaker 04:
The claims file contains a lot of extraneous information.

[00:17:28] Speaker 04:
It contains non-medical information.

[00:17:31] Speaker 04:
medical information pertaining to other ailments.

[00:17:35] Speaker 04:
There's no requirement that medical professionals have to pore through entire 9,000 page records to render a medical opinion, especially when they've both stated that they.

[00:17:46] Speaker 01:
If a veteran raises an issue on a specific, let's say, medical condition, and his argument or his position is just limited to that one particular issue,

[00:17:58] Speaker 01:
And the decision doesn't say anything about the medical examiner having reviewed the portion of the medical record that covers that specific issue.

[00:18:10] Speaker 01:
Then why wouldn't we require or find that a decision that does not say, I reviewed that portion of the medical record, why should we not find that that's deficient?

[00:18:29] Speaker 04:
Well, at the outset, because that's a factual determination.

[00:18:35] Speaker 04:
And as this court has said repeatedly, the weight of the evaluation and the weighing of evidence and drawing inferences from those are factual determinations.

[00:18:48] Speaker 04:
But I think to Your Honor's point, if there was something, if the veteran had raised a specific medical issue and the medical opinion didn't address that,

[00:18:57] Speaker 04:
That may be something that the Veterans Court could, under its clear error standard, remand back and say this is an inadequate medical opinion.

[00:19:06] Speaker 04:
Certainly this court cannot do that as a jurisdictional bar.

[00:19:11] Speaker 04:
But that's not this case here.

[00:19:12] Speaker 04:
There's not anything that Mr. Jalicio has identified that the medical examiners didn't address.

[00:19:20] Speaker 04:
And I think that even if this court were to reach the factual issues, that still doens't Mr. Jalicio's claim.

[00:19:26] Speaker 04:
I'd just like to briefly touch the issue of compliance with the remand order.

[00:19:32] Speaker 01:
Why would our review of the sufficiency of a decision be a factual issue?

[00:19:37] Speaker 04:
I'm sorry, Your Honor?

[00:19:39] Speaker 01:
Why would our review of the sufficiency of a decision be a factual inquiry?

[00:19:51] Speaker 04:
It would be the application of law to fact.

[00:19:53] Speaker 04:
You'd be applying the legal standard for the sufficiency of a medical opinion to what actually happened here.

[00:19:59] Speaker 04:
And that is also beyond this court's jurisdiction.

[00:20:02] Speaker 04:
So unless there is some error of law, and I suppose Mr. DiLisio could make the argument that there's a requirement that every medical opinion has to state that the examiner review the whole claims law.

[00:20:14] Speaker 01:
I think we've established that that's not the case, that every medical

[00:20:18] Speaker 01:
And we've also established, just talking with you, there are instances where the decision should say, we reviewed or the examiner reviewed that portion of it.

[00:20:29] Speaker 01:
Where are we in this particular case?

[00:20:31] Speaker 01:
You're saying he's not pointing to a particular issue that was not examined.

[00:20:37] Speaker 04:
That's correct.

[00:20:38] Speaker 04:
And I think going back to your hypothetical, Judge Raina, you were saying if a veteran presented a specific medical issue,

[00:20:46] Speaker 04:
and the medical opinion didn't address that.

[00:20:47] Speaker 04:
Then he could point and say, look, I specifically mentioned issue x. The opinion didn't address issue x. I think it's deficient.

[00:20:55] Speaker 04:
And either the board or the Veterans Court could address that factual determination and review that factual determination for clear error.

[00:21:03] Speaker 04:
This court, however, under its jurisdictional limit is precluded from then reweighing that application and saying, well, in this particular case,

[00:21:14] Speaker 04:
The veteran wanted issue x addressed, but that wasn't addressed.

[00:21:23] Speaker 04:
And Mr. DeLisio faces the same jurisdictional bar on the compliance with the remand order.

[00:21:28] Speaker 04:
Again, that's at the very most an application of law to fact.

[00:21:32] Speaker 04:
And moreover, he does not identify any factual area of noncompliance.

[00:21:40] Speaker 04:
He just sort of says that the board didn't comply with

[00:21:43] Speaker 04:
The remand order, but he doesn't state how.

[00:21:46] Speaker 04:
Even if he did, that would not be an issue that this court could review.

[00:21:51] Speaker 04:
If this court has no further questions, I'm happy to yield the rest of my time.

[00:21:53] Speaker 04:
And we respectfully request that they think and be affirmed.

[00:22:09] Speaker 03:
Your Honor, just a couple of points to address here on rebuttal.

[00:22:13] Speaker 03:
And it was actually, I think, also asked to me during my initial segment of a waiver of any arguments.

[00:22:21] Speaker 03:
And I just looked at my brief in the Veterans Court.

[00:22:24] Speaker 03:
There were four issues raised in the Veterans Court, which are very similar to the four raised today, whether or not the VA medical exam was adequate, whether or not the board had adequate reasons or bases for its decision.

[00:22:35] Speaker 03:
whether or not the board failed to comply with the prior remand and whether or not there was prejudicial error.

[00:22:40] Speaker 03:
So all the arguments before you today were also before the Veterans Court.

[00:22:44] Speaker 03:
So as far as a waiver, there is no waiver.

[00:22:47] Speaker 03:
Also would like to address one of the things mentioned by the secretary about whether or not Mr. DiLisio has identified any documents or anything that should support his claim that was not reviewed by the VA medical examiner

[00:23:04] Speaker 03:
I believe, Your Honor, Judge Stoll, you were point on when you said, since this court can't review factual disputes, why should he?

[00:23:13] Speaker 03:
And that's exactly what Mr. Solisio is arguing.

[00:23:15] Speaker 03:
It's not his responsibility to state what the VA medical examiner should have considered that the VA medical examiner did not consider.

[00:23:23] Speaker 03:
We're, again, focused on just the legal argument that the VA medical examiner never stated whether or not they reviewed the entire claims file so the veteran can't know what was and what was not considered.

[00:23:34] Speaker 03:
One other thing I would like to point out, and it was mentioned in the brief and the case history, is that the veteran did submit a letter to the VA in 2015.

[00:23:43] Speaker 03:
I can't remember the exact month, but a letter was sent to the VA that he had moved from Nevada to Pittsburgh at least a couple of years prior.

[00:23:53] Speaker 03:
So the medical opinions obtained in 2014 were obtained.

[00:23:57] Speaker 03:
Any notices sent to the veteran were sent to the wrong address.

[00:24:00] Speaker 03:
And I don't know if the veteran had called the VA prior to that letter in 2015 to notify them of his new address, or if there was mail forwarding and whatnot.

[00:24:08] Speaker 03:
But as to any sort of opportunity he may have had prior to those medical opinions being rendered to submit anything, he was completely unaware of that.

[00:24:16] Speaker 02:
But do you appreciate, I assume, that we're not in a position to review that?

[00:24:21] Speaker 02:
I mean, there's the presumption of soundness.

[00:24:25] Speaker 02:
we're not in a position to adjudicate whether or not he received or didn't receive that mail.

[00:24:32] Speaker 03:
Understood, Your Honor.

[00:24:33] Speaker 03:
That was just in response to the appellee secretary's arguments that the veteran had an opportunity to submit some sort of additional documentation.

[00:24:43] Speaker 03:
And this is a case where it would have been very prudent and helpful for that VA medical examiner to have actually

[00:24:50] Speaker 03:
sat down with the veteran.

[00:24:51] Speaker 03:
If the medical examiner didn't want to review 9,000 pages in his claims file, this would have been an appropriate case to have the veteran before that VA medical examiner to more clearly articulate his service-connected injuries and how they relate to his military service.

[00:25:07] Speaker 02:
Thank you.

[00:25:09] Speaker 02:
We thank both sides, and the case is submitted.

[00:25:11] Speaker 02:
Thank you.