[00:00:32] Speaker 03:
We're ready whenever you are.

[00:00:38] Speaker 01:
I have a housekeeping question for you, just to help me understand.

[00:00:43] Speaker 01:
Throughout the blue brief, there are places where Mr. Flores highlights sections of the brief.

[00:00:52] Speaker 01:
Is there a reason for that?

[00:00:55] Speaker 01:
It didn't say whether it was confidential or what?

[00:00:58] Speaker 04:
I'm sorry, which brief, Your Honor?

[00:01:01] Speaker 01:
The blue brief.

[00:01:02] Speaker 01:
I mean, I can hold it up and let's see what I'm talking about, the gray highlighting.

[00:01:08] Speaker 04:
I believe, Your Honor, that was a result of an Adobe feature.

[00:01:12] Speaker 04:
I don't believe that Mr. Flores, when submitting that document, intended to submit a highlighted section.

[00:01:19] Speaker 04:
Oh, okay.

[00:01:20] Speaker 04:
I apologize for it.

[00:01:22] Speaker 03:
But you know what we're talking about.

[00:01:24] Speaker 04:
I mean, there are these gray lines.

[00:01:26] Speaker 04:
In the paper copy that was delivered to us, I believe that that was unintended by us.

[00:01:32] Speaker 04:
Oh, OK.

[00:01:32] Speaker 01:
So I couldn't figure out why it was?

[00:01:35] Speaker 02:
No, I apologize for that.

[00:01:36] Speaker 02:
You shouldn't do that.

[00:01:37] Speaker 02:
I mean, you should be careful that the paper copy is a keen copy.

[00:01:40] Speaker 02:
Yes, sir.

[00:01:41] Speaker 04:
It makes it hard to read, among other things.

[00:01:43] Speaker 04:
I understand that we will not do that again.

[00:01:44] Speaker 04:
I apologize for that confusion.

[00:01:48] Speaker 01:
On page six of the Blueprint, Mr. Flores

[00:01:50] Speaker 01:
It says that he suffered several back injuries while serving as a police officer.

[00:01:56] Speaker 01:
How was he injured, and what was the nature and extent of his injuries, and where's that in the record?

[00:02:03] Speaker 04:
Are you referring, Your Honor, to Mr. Flores' post-service police career injuries?

[00:02:09] Speaker 01:
I'm sorry?

[00:02:09] Speaker 01:
Post name?

[00:02:10] Speaker 01:
Yeah, his police injuries, yeah.

[00:02:12] Speaker 04:
I don't have details about Mr. Flores' injuries when he was serving as a police officer.

[00:02:17] Speaker 04:
I do know that he served for 30 years as a detective.

[00:02:20] Speaker 04:
which was obviously a physically intensive career, but I'm not aware of these specific injuries that he suffered, although we are aware that Mr. Flores entered that profession with back pain already.

[00:02:36] Speaker 01:
Wait a minute, but it's in the record.

[00:02:39] Speaker 01:
We've got a Texas workers' comp report is what I see there, but it doesn't give me a lot of detail.

[00:02:48] Speaker 01:
Says he had been employed and was on light duty and so on.

[00:02:51] Speaker 04:
Yes, Your Honor.

[00:02:51] Speaker 04:
I don't know what specific events Mr. Flores experienced when he was serving as a police officer that caused those additional back injuries.

[00:02:59] Speaker 04:
We can ask Mr. Flores and advise the court in a supplement.

[00:03:03] Speaker 01:
Oh, the record's the record.

[00:03:08] Speaker 04:
Okay.

[00:03:08] Speaker 04:
Well, may it please the court, Your Honors.

[00:03:10] Speaker 04:
This case is about a dispute created and then adjudicated to Novo solely by the Veterans Court.

[00:03:15] Speaker 04:
The question is whether the Veterans Court overstepped its scope of review and violated Chenery when it tried a dispute that wasn't before it.

[00:03:22] Speaker 04:
Mr. Flores told the Board that he hurt his back two ways in service.

[00:03:26] Speaker 04:
He was kicked in the coccyx and he loaded heavy ammunition while serving as a gunnery mate.

[00:03:31] Speaker 04:
The Board only considered the coccyx injury theory of entitlement for Mr. Flores' back claim.

[00:03:36] Speaker 04:
Mr. Flores argued on appeal that the Board was required to consider the ammo loading theory.

[00:03:41] Speaker 04:
At the Veterans Court, the Secretary agreed.

[00:03:43] Speaker 04:
The board never considered the ammo loading theory or provided an examination for it, and the secretary defended that he didn't have to.

[00:03:51] Speaker 04:
The Veterans Court held that the secretary did have to consider the ammo loading theory, but found that over the secretary's objection, the secretary had already considered the ammo loading theory.

[00:04:01] Speaker 04:
The court also held that it didn't have to provide an examination.

[00:04:05] Speaker 04:
The parties agreed on a fact going into the Veterans Court's decision, and that was that the board did not consider the ammo loading theory when considering

[00:04:13] Speaker 04:
whether Mr. Flores was entitled to service connection.

[00:04:16] Speaker 02:
Your problem is that there's basically a fact finding by the Veterans Court that the board did consider the ammo loading theory and rejected it.

[00:04:31] Speaker 02:
And why does that present a legal question for us?

[00:04:32] Speaker 04:
That presents a legal question, Your Honor, because of the mandates of 7261C, which prevent the court from engaging in that fact finding in the first place.

[00:04:42] Speaker 04:
We are not asking this

[00:04:43] Speaker 04:
Your Honor, to inquire as to whether the Court... Wait a second.

[00:04:46] Speaker 02:
It prohibits the Veterans Court from making a decision as to whether the issue was addressed by the Board?

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

[00:04:53] Speaker 02:
How can that be?

[00:04:54] Speaker 02:
Excuse me.

[00:04:56] Speaker 02:
How can that be?

[00:04:56] Speaker 02:
I mean, it would seem to be one of the things that the Veterans Court should be doing, is making a determination as to whether the Board addressed a particular issue or not.

[00:05:06] Speaker 04:
The Veterans Court made a factual finding de novo

[00:05:11] Speaker 04:
when it determined that the board did something, that the agency did something, that the agency advised the court, it did not do.

[00:05:18] Speaker 04:
And that was the inquiry that overstepped the board's scope of review under 7261, Your Honor.

[00:05:25] Speaker 04:
That was a fact that neither party, that both parties agreed to, that the board did not engage in that inquiry, that the Veterans Court decided to find de novo.

[00:05:35] Speaker 04:
And that was outside of the scope of the inquiry.

[00:05:38] Speaker 03:
I'm a little confused.

[00:05:39] Speaker 03:
The Court of Veterans Claims considered whether or not the Board had adequately considered the ammo theory and concluded that it had.

[00:05:51] Speaker 03:
Why is that fact-finding in the first instance?

[00:05:55] Speaker 04:
The fact-finding wasn't the adequacy, Your Honor, of the Board's consideration.

[00:06:00] Speaker 04:
The fact-finding, Your Honor, was whether the Board considered it at all.

[00:06:04] Speaker 04:
And the agency, the Secretary, had already advised the Court that it didn't and that it, legally speaking,

[00:06:09] Speaker 04:
from the Secretary's point of view, didn't have to.

[00:06:12] Speaker 02:
And it was an issue of... You can't be binding on the Veterans Court.

[00:06:18] Speaker 02:
That happens all the time.

[00:06:22] Speaker 02:
The parties make arguments that we discard and disagree with, and we go on to consider something else.

[00:06:29] Speaker 02:
The fact that, in your view, the government conceded this doesn't mean that the Veterans Court's bound by that concession.

[00:06:34] Speaker 04:
That, Your Honor, is why Chenery is important in addition to 7261, because this was the agency not arguing that it didn't consider the ammo loading theory.

[00:06:44] Speaker 04:
This was the agency informing the court of the justification for its decision.

[00:06:49] Speaker 04:
And then the court used a different justification than what the agency had told the court it did in order to affirm the agency's decision by different reasoning.

[00:06:58] Speaker 04:
The agency had explained in its briefing that it had not engaged in the ammo loading theory.

[00:07:04] Speaker 04:
and its defense of that was a legally erroneous defense under Roebuck as the Veterans Court did hold.

[00:07:12] Speaker 04:
However, the Veterans Court made a factual finding in order to justify the board's decision on a basis that the board, the agency itself, never actually provided.

[00:07:23] Speaker 04:
Your Honor, this is why under Roebuck, the Veterans Court has already held that the agency, had it not engaged in the ammo loading theory,

[00:07:34] Speaker 04:
would have committed a legal error.

[00:07:36] Speaker 04:
The Veterans Court was only able to affirm the agency's action, the agency's decision, by overstepping its scope of review under 7261 and then violating Chenery by affirming an agency decision under grounds that the agency explicitly disavowed.

[00:07:52] Speaker 04:
Under Chenery, the Veterans Court can't chisel a precise justification out of an unclear agency decision.

[00:07:57] Speaker 04:
And the Veterans Court even identified that this was not a clear agency decision.

[00:08:02] Speaker 04:
Your Honor, this is why we ask that this court hold that the Veterans Court overstepped its scope of review when it made a de novo finding of fact that the board did something that the agency identified to the court that it did not do in order to justify an agency decision under entirely new grounds.

[00:08:24] Speaker 04:
We ask this court to hold that the Veterans Court violated 7261 and Chenery and remand for the board to consider the AML loading theory and provide an examination.

[00:08:57] Speaker 00:
May it please the court.

[00:08:59] Speaker 00:
The Veterans Court did not make any de novo findings of fact or impermissibly substitute its own rationale and it correctly found no error in the board's decision not to provide a medical examination.

[00:09:13] Speaker 00:
The overall

[00:09:14] Speaker 00:
The requirement to satisfy a claim here, entitlement to compensation, is that Mr. Flores needed to demonstrate a present disability, incurrence or aggravation of a disease or injury, and then a nexus.

[00:09:28] Speaker 00:
And the condition that he was claiming was a low back condition.

[00:09:34] Speaker 00:
And the board found in the Veterans Court, in reviewing the board's decision, found that it adequately explained its rationale for finding

[00:09:43] Speaker 00:
that two of those requirements were not met.

[00:09:46] Speaker 00:
One, there was no injury whatsoever in service to the lower back and two, there was definitely no nexus because of all the other injuries that occurred in the 1990s when Mr. Flores was serving as a police officer.

[00:10:03] Speaker 03:
So is it the government's position so therefore parsing whether or not what which of the two reasons he was things that happened to him that he was alleging is not

[00:10:14] Speaker 03:
It's not the issue that was before the CA.

[00:10:17] Speaker 00:
Right, Your Honor.

[00:10:18] Speaker 00:
It's a more primary issue as to whether he made any showings whatsoever about his lower back.

[00:10:24] Speaker 00:
In respect to how it happened.

[00:10:28] Speaker 00:
Correctly.

[00:10:28] Speaker 00:
Correct, Your Honor.

[00:10:29] Speaker 00:
And I think the confusion as to the two theories that he presented comes from the fact, and this is not something that is discussed as much as it should have been probably, is that in 1967,

[00:10:40] Speaker 00:
The board already considered, and this is at Appendix 189, his theory that he injured his back lifting ammo.

[00:10:49] Speaker 00:
At Appendix 189, his contention was that he hurt his back while unloading supplies and ammunition from ships while in service in 1963.

[00:10:57] Speaker 00:
In the 1967 board decision, the board found that the back injury which, any back injury which he sustained during service is considered to have been acute and transitory.

[00:11:10] Speaker 00:
Spongelosis is not a residual of an injury and the evidence does not establish the existence of Spongelosis thesis and that's the condition for which service connection was initially claimed and the finding of fact was that the back condition now present in 1967 did not have its onset during the veterans military service.

[00:11:31] Speaker 03:
What's your response to your friend's arguments with regard to the agency's position and how the agency

[00:11:38] Speaker 00:
A couple of things, Your Honor.

[00:11:44] Speaker 00:
One, as Judge Dyke stated, we do, to the extent that the Secretary made an incorrect legal statement in its argument, we don't disagree with the Veteran Court's conclusion that there is only one disability claim here and only one claim with two theories.

[00:12:05] Speaker 00:
I do bring up the 1967 decision because of the procedural history, which led to the secretary making that argument, which is the only reason that he was able to bring a claim back to the VA was because he had a new injury that he was alleging in 1999, a new injury that he was kicked in the coccyx.

[00:12:27] Speaker 00:
And so that's the only reason.

[00:12:29] Speaker 03:
And all the new medical opinions before the CAVC and the board in this case all had to do with that.

[00:12:34] Speaker 01:
Correct, Your Honor.

[00:12:35] Speaker 01:
Let me ask you.

[00:12:36] Speaker 01:
Let me ask you.

[00:12:39] Speaker 01:
Oh, I suppose it's a housekeeping question, although the real question is, does the government actually give a damn about anything?

[00:12:46] Speaker 01:
Let me direct you to page four of the red brief, OK?

[00:12:52] Speaker 01:
And section two, heading A, during his service in the army from 1961 to 1964,

[00:13:03] Speaker 01:
And then underneath it says, Mr. Flores served in the Army from 1961 to 1964.

[00:13:08] Speaker 01:
And then it says at the bottom of the page, two years after he left the Army.

[00:13:12] Speaker 01:
Do you know what a DD-214 is?

[00:13:15] Speaker 01:
Yes, Your Honor.

[00:13:16] Speaker 01:
The DD-214 is at 110 in the appendix.

[00:13:21] Speaker 01:
Have you looked at it?

[00:13:23] Speaker 00:
I have.

[00:13:24] Speaker 00:
No, Your Honor.

[00:13:25] Speaker 00:
To be honest, I haven't looked at DD-214.

[00:13:27] Speaker 01:
Mr. Flores served in the United States Navy.

[00:13:31] Speaker 01:
Not in the United States Army.

[00:13:33] Speaker 01:
He didn't have a drill sergeant as his reference in the briefing, at least some of it.

[00:13:40] Speaker 01:
He probably had a drill instructor, I think they called him in the Navy, certainly in the Marines too.

[00:13:46] Speaker 01:
And this kind of sloppiness is just rife throughout it.

[00:13:52] Speaker 01:
And being an undergraduate of the drill instructor school at Fort Ord in 1969, I find it particularly irritating.

[00:14:00] Speaker 01:
But I find it particularly irritating as well

[00:14:04] Speaker 01:
that you don't bother to properly refer to somebody's service to the United States.

[00:14:14] Speaker 00:
Enough said.

[00:14:15] Speaker 00:
Okay, I apologize for that, Your Honor.

[00:14:17] Speaker 00:
If there was an oversight in how the drill instructor was referred to, I think... I'm not talking about his service.

[00:14:26] Speaker 01:
It's disrespectful.

[00:14:29] Speaker 01:
You know, when I write briefs, when I write opinions, I always refer to someone as mister or doctor

[00:14:34] Speaker 01:
whatever their proper title is.

[00:14:37] Speaker 01:
I try to avoid pejoratives and so on.

[00:14:39] Speaker 01:
This sort of thing just rates.

[00:14:43] Speaker 00:
That's the message.

[00:14:46] Speaker 00:
Thank you.

[00:14:49] Speaker 00:
And then I guess, Your Honor, I will just say that there really is no jurisdiction to consider the essence of what Mr. Flores has presented here because

[00:15:05] Speaker 00:
As Judge Dyke said, the veteran court's finding that the board adequately considered this other allegation of an injury from loading ammunition was a finding of fact from the veteran's court.

[00:15:25] Speaker 00:
So there's not really an issue here that this court has jurisdiction to consider.

[00:15:52] Speaker 04:
Your Honours, the Secretary has urged us to ignore what he characterized as an incorrect legal statement in his brief to the Veterans Court.

[00:16:03] Speaker 04:
The statement that the Secretary made in providing information as to what the Board considered when it made its decision is not a legal statement or a legal argument.

[00:16:17] Speaker 04:
That is a statement of fact as to what the agency itself did.

[00:16:20] Speaker 04:
And the agency is in not only the best, but really the only possible position to speak to what the agency did.

[00:16:26] Speaker 04:
Now, this was an incorrect factual statement.

[00:16:29] Speaker 04:
And under Chenery, if we can't believe the justifications for an agency's decision, then we can't really exercise judicial review of an agency effectively because the courts have to take into account with a measure of integrity what the secretary means when he says what he did.

[00:16:50] Speaker 04:
Now, that would mean that the court would otherwise be unable to review any agency action, Your Honor.

[00:16:57] Speaker 04:
And that's why it's important that the Secretary advised the Veterans Court as to exactly what he was doing when he affirmed the Board decision.

[00:17:05] Speaker 04:
And the Veterans Court identified that it would have been legal error had the Veterans Court taken that information from the agency under advisement because the Board had to consider the ammo loading theory.

[00:17:19] Speaker 04:
И это потому что мистер Форес reopened, когда он reopened his claim he also mentioned the ammunition loading theory and that that's why both the the coccyx injury and the ammunition loading theory were issues were theories of entirely all the medical opinions that he put in his private medical opinions are not about the m theory right the 26th the october 2016 medical opinion your honor did not rest solely upon the coccyx injury it did mention it

[00:17:48] Speaker 04:
but it related, it mentioned the ammo loading, the ammo loading event in service as well, and it related Mr. Flores's current back condition and degenerative back condition shown in his 1966 x-ray, which, by the way, Your Honors, was not two years after Mr. Flores led the service.

[00:18:07] Speaker 02:
Where does this medical opinion refer to the ammo loading theory?

[00:18:10] Speaker 04:
It is at Appendix 100 to 101, Your Honors.

[00:18:18] Speaker 04:
The medical expert, the author of that opinion, the October 2016 opinion, related Mr. Flores' degenerative disease, as it appeared in his 1966 x-ray, to his military service.

[00:18:32] Speaker 04:
Attributable to his military service.

[00:18:35] Speaker 02:
Where's the reference to the ammo?

[00:18:37] Speaker 04:
The ammo loading theory reference, Your Honor, is Appendix 100.

[00:18:43] Speaker 04:
Let's see.

[00:18:44] Speaker 04:
The third paragraph, the paragraph beginning with Mr. Flores entered military service in 1961.

[00:18:48] Speaker 04:
That last sentence mentions Mr. Flores' loading and unloading ammo.

[00:18:56] Speaker 04:
Your honor.

[00:19:00] Speaker 04:
It was not only the coccyx injury that was the only potential event in service that the October 2016 opinion related.

[00:19:09] Speaker 04:
to the evidence that the examiner saw in the 1966 X-ray, Your Honors.

[00:19:14] Speaker 04:
And that X-ray showed degenerative changes.

[00:19:16] Speaker 04:
Only 14 months, not two years, only 14 months after Mr. Flores left the service, which indicated to the examiner, given her expertise and 10 years of experience in the field, related to his military service, his period of military service, not just specifically to the Cox's case.

[00:19:38] Speaker 03:
Thank you.

[00:19:38] Speaker 03:
I think outside in the case

[00:19:39] Speaker 03:
Case is submitted.

[00:19:43] Speaker 03:
Thank you.

[00:19:46] Speaker 03:
The next case for argument is 19-121-0, Dr. Stefano versus LinkedIn.