[00:00:00] Speaker 02:
Frank Waite vs. Waite.

[00:00:43] Speaker 01:
Good morning, Your Honors.

[00:00:44] Speaker 01:
May it please the Court, William Milliken for Appellant Ernest Franceway.

[00:00:48] Speaker 01:
The Veterans Court in this case erroneously expanded the presumption of competency into a presumption of specialization, a presumption that every medical examiner chosen by the VA has specialized knowledge

[00:01:04] Speaker 01:
in the particular area required by the veteran at issue.

[00:01:07] Speaker 02:
So if you had your druthers, and there was no presumption applied here, how would this, and again, assuming, which is a big assumption, that it wasn't waived in the first instance, but how would this issue play out under these facts?

[00:01:25] Speaker 02:
It got sent back for specialists, and one of those specialists was an orthopedic person.

[00:01:33] Speaker 02:
internist, in the other words, I don't know what.

[00:01:37] Speaker 02:
I'm trying to see what the relevance of the presumption is in your view, or the absence of it.

[00:01:42] Speaker 02:
What happens?

[00:01:44] Speaker 02:
He raises a concern, what?

[00:01:46] Speaker 02:
That you should have sent it to two orthopedic specialists as opposed to one orthopedic specialist and one internist?

[00:01:55] Speaker 01:
Well, to answer your honor's question about how it should play out, I think that if a border manned order specifically requires an opinion or an examination from a specialist, then when that examination or opinion is rendered, the VA needs to do something to document the fact

[00:02:11] Speaker 01:
that the examiner is a specialist in the necessary area.

[00:02:15] Speaker 02:
Well, maybe I'm wrong on the facts.

[00:02:19] Speaker 02:
On the remand, one of the people, the person that examined him was an orthopedic specialist, right?

[00:02:25] Speaker 02:
I thought your complaint was about the second person who actually didn't examine him but reviewed the file was not a specialist.

[00:02:34] Speaker 01:
So the orthopedist's opinion on remand by the VA's own admission did not comply with the remand order, because the orthopedist, Dr. Sturer, did not reconcile his opinion with the lay testimony and the record from Mr. Princeway's friend.

[00:02:52] Speaker 01:
And the board actually did not even mention Dr. Sturer's 2014 opinion in its decision.

[00:02:57] Speaker 01:
So the board recognized as well that this was not compliant.

[00:03:01] Speaker 01:
And so the only sort of operative

[00:03:04] Speaker 01:
opinion that we have after the 2013 remand order is from the internist, Dr. Schechter, and there's no evidence in the record indicating that Dr. Schechter had any specialized knowledge concerning lower back conditions.

[00:03:17] Speaker 02:
Okay, so back to my question about, thank you for that.

[00:03:20] Speaker 02:
How does this play out then under your, the system, the way you think the system should work?

[00:03:25] Speaker 01:
So our position is that if a remand order requires a specialist, when whatever examiner is chosen to give the opinion, gives the opinion, they should attach their CV to the opinion, or they should write a few sentences explaining why they are a specialist.

[00:03:44] Speaker 01:
And I think it would be up to the board.

[00:03:46] Speaker 04:
This is very confusing, because there seem to me to be two separate issues here.

[00:03:50] Speaker 04:
One is compliance with the remand order.

[00:03:52] Speaker 04:
which is unique to this case, and the other one is what the presumption does, which is a general issue which has come up before.

[00:04:02] Speaker 04:
Are you arguing both of those points?

[00:04:05] Speaker 01:
We're arguing both, Your Honor.

[00:04:07] Speaker 01:
Our narrower argument, however, is that when a remand order, as here, expressly requires a specialist, the duty to ensure substantial compliance obligates the board to ensure that a specialist is, in fact, procured.

[00:04:22] Speaker 01:
And it can't rely on the presumption of competency to absolve it of the duty to comply with that affirmative burden.

[00:04:31] Speaker 01:
So our narrower position is that where and only where, as here you have a remand order requiring a specialist, there has to be some evidence in the records supporting the idea that the examiner has the specialized knowledge that the board was asking for.

[00:04:48] Speaker 02:
So just carrying through.

[00:04:50] Speaker 02:
So why, one thing you suggested is that it had, in this narrow circumstances at least, it had to be automatic that any person that opined had to include in the record their CV.

[00:05:08] Speaker 02:
Why couldn't he have just asked for it?

[00:05:11] Speaker 02:
I mean, you know, just as a matter of course, what is the problem with saying if there's a specialist and there's any question there is?

[00:05:20] Speaker 02:
Because they do list what their kind of area of specialization or whatever is.

[00:05:26] Speaker 02:
Is there a big deal, big difference in your mind between them including the CV and the record and your client having to, if he has any concerns about it, given he knows one's an internist and one's not asking for?

[00:05:41] Speaker 01:
I think the reason for requiring an affirmative showing is because the board has this recognized affirmative duty to ensure compliance with remand orders.

[00:05:50] Speaker 01:
And the reason that these burdens fall on the VA in the VA benefits context, it's a very paternalistic system.

[00:05:59] Speaker 01:
The veterans are often pro se.

[00:06:02] Speaker 01:
They don't necessarily know what to ask for or how to ask for it.

[00:06:05] Speaker 02:
And so the system... I understand what you're saying.

[00:06:08] Speaker 02:
It all sounds good.

[00:06:09] Speaker 02:
But if a person isn't competent or isn't savvy enough to know what to ask for, it's a lot more complicated to figure out what to do once you've gotten the information.

[00:06:20] Speaker 02:
So I'm not sure somebody's not savvy enough or not interested or not attuned enough

[00:06:26] Speaker 02:
to look at the titles of these people and say, hey, I'm not sure there are specials.

[00:06:31] Speaker 02:
How is that person arguably savvy enough to then evaluate these CVs for these people that probably go on for pages?

[00:06:40] Speaker 01:
Well, I think the key is that if the CV is provided, then the CV is in the record, and the agency has satisfied its duty to

[00:06:49] Speaker 01:
sort of provide all of the information that's necessary for the veteran to substantiate or not their claim.

[00:06:56] Speaker 01:
And so this wouldn't even be an issue on appeal to the Veterans Court because we would have documentation in the record suggesting that the person was in fact a specialist.

[00:07:05] Speaker 01:
Here we don't have that.

[00:07:07] Speaker 01:
There's no evidence one way or another as to whether Dr. Schechter, the internist, has

[00:07:13] Speaker 01:
this required specialized knowledge.

[00:07:16] Speaker 02:
Well, do we know what that is?

[00:07:17] Speaker 02:
I mean, in the remand order, was the board at all clear, or it was the CABC demanded to the board or the board?

[00:07:24] Speaker 01:
So the remand order issue is from the board.

[00:07:26] Speaker 01:
That's an appendix 1046.

[00:07:30] Speaker 01:
I'm sorry.

[00:07:31] Speaker 02:
So is there any clarity?

[00:07:33] Speaker 02:
I mean, I don't know.

[00:07:34] Speaker 02:
Do you know necessarily what they meant by the word specialist?

[00:07:39] Speaker 01:
I think that we can pretty easily infer that it meant a specialist in orthopedics, and the reason is Mr. Frantzway's brief to the board, which is found that appendix 1052, this is the brief that prompted the 2013 remand order, he specifically asked for a board-certified specialist in orthopedics, and it was

[00:08:01] Speaker 01:
based on that filing that the board issued this remand order which required an opinion from an appropriate medical specialist.

[00:08:08] Speaker 01:
And I think it's significant that the board's remand order used that word because this term specialist, it has a very particular meaning in these proceedings.

[00:08:18] Speaker 02:
I'm sorry, I appreciate it, but I'm going to cut you off just so I can move on to the next, because I have two more little areas to explore.

[00:08:25] Speaker 02:
One is that, OK, moving on to the big picture argument and away from the little specialist argument that's unique to this case.

[00:08:34] Speaker 02:
So what is your view on the presumption of competency?

[00:08:38] Speaker 02:
Is what that requires, therefore, and is it satisfied that every time the board has a medical professional looking at any

[00:08:47] Speaker 02:
claimant that they put forth in the record that person's CV is that how you think this presumption of competence which competency which you've complained about ought to be corrected

[00:09:02] Speaker 01:
I think that it should be up to the agency in the first instance to decide how to make this showing that they're relying on competent medical evidence, which is evidence provided by someone who's qualified to render medical diagnoses.

[00:09:15] Speaker 01:
It could be something as simple as a CV.

[00:09:18] Speaker 01:
It could be the examiner writing a few sentences as part of the opinion, this is why I am competent to opine on this particular condition.

[00:09:28] Speaker 01:
And I'd note that before this court's presumption of competency cases, the VA in fact provided examiners CVs quite often as a matter of course when they issued these sorts of opinions.

[00:09:43] Speaker 04:
But suppose we were to say that this overall presumption of competence only requires one thing.

[00:09:50] Speaker 04:
And I think this would be consistent with the cases.

[00:09:52] Speaker 04:
And the one thing is that the veteran raised the competency issue.

[00:09:57] Speaker 04:
If the veteran wants information about the CV, there's an obligation under the duty to assist to give that to them.

[00:10:06] Speaker 04:
What is the problem with that regime?

[00:10:09] Speaker 01:
We think that under the duty to assist it makes more sense to put the burden on the VA to put some kind of evidence and again it doesn't have to be extensive but just some evidence supporting the idea that the examiner is competent.

[00:10:25] Speaker 04:
So what's the big problem with saying if the veteran has a problem about competency he's got to raise the issue?

[00:10:32] Speaker 01:
So under RISO and its progeny as they operate now, it's not just that the veteran has to raise the issue.

[00:10:38] Speaker 04:
The veteran has... You're going contrary to my assumption.

[00:10:41] Speaker 01:
Oh, I'm sorry.

[00:10:42] Speaker 04:
Those cases do not preclude that interpretation that the only requirement is that the veteran raise the issue.

[00:10:52] Speaker 04:
What's the problem with putting the burden on the veteran to raise the issue?

[00:10:57] Speaker 01:
We would say, again, that given the duty to assist, and as with most issues going to the substantiation of a claimant's claim, that the burden to produce the necessary evidence should be on the VA, not the veteran.

[00:11:11] Speaker 04:
I'm not talking about producing evidence.

[00:11:13] Speaker 04:
I'm talking about just raising the issue.

[00:11:16] Speaker 01:
Well, I think that the issues are intertwined because... No, but you've got to stick with my hypothetical.

[00:11:23] Speaker 04:
My hypothetical is no burden.

[00:11:25] Speaker 04:
on the veteran to produce any evidence or do anything except to say, I challenge the competency.

[00:11:32] Speaker 01:
I think that that would be a far better system than the one that is currently in operation.

[00:11:38] Speaker 01:
But I think that, again, I'd like to go back to the point that even if that were the current regime,

[00:11:45] Speaker 01:
and even under the current regime as it exists under Rizzo, that wouldn't resolve this case where there is a remand order that explicitly requires a specialist.

[00:11:54] Speaker 03:
And I appreciate it.

[00:11:56] Speaker 03:
Isn't it pretty unusual to require an agency to prove that one of its actors has competence

[00:12:04] Speaker 03:
Judging from the firm you're in, you're probably a patent attorney.

[00:12:07] Speaker 03:
You file an application to the Patent Office.

[00:12:10] Speaker 03:
Do you ask the patent examiner to cite his or her bona fides?

[00:12:15] Speaker 03:
That's pretty unusual.

[00:12:17] Speaker 01:
Well, Your Honor, the role that these examiners play in these VA benefits proceedings is really more like the role of an expert witness.

[00:12:25] Speaker 01:
That's how the Veterans Court has articulated their role.

[00:12:29] Speaker 01:
And I would note that when a veteran submits a private medical examiner's opinion in support of a claim, the VA in fact requires that examiner to substantiate their qualifications.

[00:12:40] Speaker 01:
The VA says otherwise we can't assess whether the opinion is entitled to any weight.

[00:12:44] Speaker 01:
And our point is just that it should work both ways.

[00:12:47] Speaker 01:
It should be the same when the VA produces an opinion from someone who is essentially acting as an expert witness in one of these sorts of proceedings.

[00:12:56] Speaker 02:
Back to your narrower issue, I have a concern about whether or not it was appropriately preserved.

[00:13:04] Speaker 02:
And in your brief, your response to the waiver argument just refers to pages, appendix 111, I think, to 117.

[00:13:15] Speaker 02:
Maybe you had something in mind, because I've combed through those pages, and I'm not seeing where this issue is preserved.

[00:13:22] Speaker 01:
So at Appendix 116, Mr. Frantzway argued that Dr. Schechter's... Why don't you pull the page up so you can tell me where on the page it is, because there's a lot of words on this page.

[00:13:38] Speaker 01:
The second full paragraph, the paragraph begins, Mr. Fransway asserts once again that VA has yet to provide him an adequate examination and opinion.

[00:13:49] Speaker 01:
And then it goes on to discuss the deficiencies in the opinion.

[00:13:53] Speaker 01:
And we think that under the liberal standard applicable to veterans filings in the board,

[00:13:58] Speaker 01:
The reference to an inadequate examination is best read as a challenge to the qualifications of the examiner, particularly given that Mr. Frantzway had previously asked for a board-certified specialist.

[00:14:12] Speaker 02:
Well, here's the concern I have about that.

[00:14:14] Speaker 02:
That's the lead sentence of a paragraph.

[00:14:16] Speaker 02:
And in English, at least, they used to teach you sort of like this.

[00:14:19] Speaker 02:
The meat for the bones is provided thereafter.

[00:14:22] Speaker 02:
And there's nothing.

[00:14:23] Speaker 02:
There are a lot of details there, none of which go to the point you're making.

[00:14:27] Speaker 02:
The other point I'd make, and I'm mistaken, I mean a lot of, and we have a number of cases that refer to a pro se claimant, but in this instance, there was a lawyer involved, right?

[00:14:40] Speaker 01:
He was represented by counsel, however, this court's precedents say that veterans filing should be construed liberally even when they are represented by counsel.

[00:14:49] Speaker 02:
Yeah, but there's another step, but there's also the step about pro se litigants and construing that, and this was performed by an attorney, right?

[00:14:57] Speaker 01:
But I'd like to say also that even setting aside, even if you disagree with us about whether the issue was raised before the board, the government's waiver argument is really a repackaged version of its argument on the merits.

[00:15:11] Speaker 01:
Because our position is that under the duty to ensure substantial compliance, if a remand order requires a specialist, the affirmative burden is on the VA to demonstrate that the person is a specialist.

[00:15:24] Speaker 01:
It's not on the veteran to say to the board, this person isn't a specialist.

[00:15:30] Speaker 01:
And so we think that the waiver issue really just collapses into the merits of whether

[00:15:36] Speaker 01:
a remand order that requires a specialist imposes... Well, isn't there something called harmless?

[00:15:41] Speaker 02:
I mean, even if you're right, I'm not sure I see why it's collapsed because when it went back down...

[00:15:48] Speaker 02:
and nobody says anything, then the assumption is that that person waived their right because they presumably were satisfied that the specialist portion of the remand and kind of everything else that isn't mentioned here was okay.

[00:16:05] Speaker 02:
So even if technically we were to adopt your legal regime and say they were required in the first instance to provide

[00:16:13] Speaker 02:
the CV or something with regard to these people, didn't you have to preserve it in any way, shape, or form?

[00:16:22] Speaker 01:
Well, I think the preservation that we – I see I'm out of time.

[00:16:26] Speaker 01:
No, please.

[00:16:27] Speaker 01:
I think the preservation that we had to do was to raise the issue of substantial compliance with the Veterans Court.

[00:16:35] Speaker 01:
And in addressing our substantial compliance argument, the Veterans Court didn't say, oh, no, there is evidence in the record that this person was a specialist as required to the manned order.

[00:16:47] Speaker 01:
Instead, it said, it doesn't matter that there's no evidence.

[00:16:50] Speaker 01:
We're entitled to assume that the internist was a specialist, because there's this general presumption that the VA chooses qualified medical examiners.

[00:16:58] Speaker 01:
And we think that that legal point, that it's allowed to use the presumption of competency to assume that Dr. Schechter was a specialist, that's the legal point that we're asking the court to reach on appeal.

[00:17:11] Speaker 01:
And we think that was properly preserved.

[00:17:13] Speaker 02:
Thank you.

[00:17:24] Speaker 00:
Good morning, Your Honors.

[00:17:25] Speaker 00:
May it please the Court?

[00:17:26] Speaker 00:
Perhaps I can work backwards, Your Honor.

[00:17:28] Speaker 00:
So what happened in talk about preservation first, as Your Honors are familiar with our brief, we do argue that there is no jurisdiction here because this issue was not preserved.

[00:17:39] Speaker 04:
This issue being what issue?

[00:17:41] Speaker 04:
Because I understand there are two separate arguments here.

[00:17:44] Speaker 04:
One is the general rule about the presumption of competency, and the second one is the remand order issue.

[00:17:52] Speaker 04:
Correct.

[00:17:53] Speaker 04:
So when you say this issue was not preserved, what is this issue?

[00:17:57] Speaker 00:
We believe there's really one issue here, Your Honor, and that issue is substantial compliance with the remand order by the board.

[00:18:05] Speaker 00:
The crux of the dispute between the parties here is that the VA, on remand, did not substantially comply with the board's remand order.

[00:18:15] Speaker 04:
Okay, so that issue was raised, right?

[00:18:17] Speaker 00:
That issue was raised to the Veterans Court.

[00:18:20] Speaker 00:
And the Veterans Court found that it had been waived because it had not been raised to the board below.

[00:18:24] Speaker 00:
And that's the page 116 of the record that Your Honors were just discussing with my colleague.

[00:18:31] Speaker 00:
And on that page, we're looking at

[00:18:34] Speaker 00:
talking about whether or not the opinion itself is adequate, the substance of the opinion is adequate.

[00:18:42] Speaker 00:
We're not talking about on page 116 in the argument arguing that the internist is not a competent individual to, is not an appropriate medical specialist, excuse me, and therefore there was no compliance with the remand order.

[00:18:56] Speaker 00:
So our position is

[00:18:59] Speaker 00:
Consistent with the Veterans Court decision that this issue had not been raised, this issue of a lack of reasons and bases provided as to why there was substantial compliance with the remand order.

[00:19:10] Speaker 00:
Why were there no reasons and bases provided by the board?

[00:19:13] Speaker 00:
Because the issue was not raised to the board.

[00:19:15] Speaker 00:
What Mr. Franque is alleging is that there is basically he's faulting the board for not responding to an argument he never raised.

[00:19:24] Speaker 00:
No, that's a double negative there, Your Honor.

[00:19:26] Speaker 04:
I'm sorry.

[00:19:27] Speaker 04:
I'm not understanding what issue wasn't raised about the remand order.

[00:19:32] Speaker 04:
He complained that there wasn't compliance with the remand order and the Veterans Court addressed that issue on the merits, right?

[00:19:42] Speaker 00:
No.

[00:19:42] Speaker 00:
If I can turn to page nine of the appendix, Your Honor.

[00:19:52] Speaker 00:
And on page 9 of the, this is the Veterans Court decision itself, on the second to last paragraph, we start with the word finally.

[00:20:00] Speaker 00:
And that's where the court is saying that there is an argument posed by Mr. Franque that there is failure to ensure substantial compliance with the remand order.

[00:20:12] Speaker 00:
And then the following paragraph, the court says, initially, the court notes that the VA benefits for the presumption that has properly chosen a person who is qualified to provide a medical opinion.

[00:20:22] Speaker 00:
The appellant does not argue, nor does the record reflect that he raised the issue for a while.

[00:20:30] Speaker 04:
It seems to me that he did tell the board that there was not substantial compliance with the remand order, right?

[00:20:38] Speaker 00:
No, Your Honor.

[00:20:39] Speaker 00:
You did not?

[00:20:40] Speaker 00:
I don't believe that that's accurate.

[00:20:42] Speaker 00:
I mean, that's certainly not what we argued otherwise in our briefing, and we haven't gotten a response otherwise.

[00:20:47] Speaker 00:
The next page, continuing the same paragraph, we have the sentence, thus the board was not required to provide a statement of reasons or bases establishing the medical examiner's competence.

[00:20:57] Speaker 04:
But that's a different question.

[00:21:00] Speaker 00:
okay i understand your point you're on it yet we're tying them together we see it as one okay but he did say before the board that there wasn't substantial compliance with the remand order right because it was inadequate yes inadequate on substance not on the competency of the examiner

[00:21:16] Speaker 04:
OK.

[00:21:17] Speaker 00:
Right.

[00:21:18] Speaker 00:
That's why we see there's one issue.

[00:21:19] Speaker 00:
I know your honor said there's two issues, one, two.

[00:21:21] Speaker 00:
But they are kind of tied together here, your honor.

[00:21:24] Speaker 00:
In order, how should this have played out, your honor, is another question that we talked about.

[00:21:28] Speaker 00:
What should have happened is that Mr. Franque, before the board, after receiving the examination report by the internist, should have at that point said it is inadequate because of the substance to it, as you did argue it.

[00:21:41] Speaker 00:
And because this internist does not qualify as an appropriate medical specialist.

[00:21:46] Speaker 02:
OK, let's move away from the waiver issue to the other.

[00:21:48] Speaker 02:
So applying whatever this presumption is, that's my question.

[00:21:54] Speaker 02:
What is the presumption?

[00:21:55] Speaker 00:
The process, Your Honor.

[00:21:56] Speaker 00:
It's about the process of selecting a medical examiner.

[00:21:59] Speaker 00:
So what we are looking at here is that, please.

[00:22:04] Speaker 02:
Let me start.

[00:22:05] Speaker 02:
The first process is his view that it should be

[00:22:11] Speaker 02:
the resume should be included, whether it's competency or whether it's specialization.

[00:22:16] Speaker 02:
Is the government's position that somebody just has to ask for it, or is the government's position, I read something historically in one of these cases, that

[00:22:28] Speaker 02:
even if you ask, we're not going to necessarily give it to you.

[00:22:32] Speaker 02:
So what is the government's view of this presumption?

[00:22:34] Speaker 00:
Correct.

[00:22:35] Speaker 00:
And the question has come up in the Mathis case prior to this, Your Honor, about I think the two different concurrences in it, recurrence by Your Honor saying that the duty to assist requires providing what asked.

[00:22:47] Speaker 00:
Yeah, we know what we said.

[00:22:48] Speaker 02:
What do you say is that the government's position that someone has to ask

[00:22:55] Speaker 00:
But then we provide it or they have to go I think in most cases the duty to assist would come into play to require the provision of the CV.

[00:23:02] Speaker 00:
There are some outlier cases that we could think of where provision of the CV would be inappropriate.

[00:23:10] Speaker 00:
One of those was one of the and I'm trying to apologize.

[00:23:14] Speaker 00:
I'm trying to find the

[00:23:16] Speaker 00:
Citation here, Your Honor.

[00:23:18] Speaker 00:
There is a board decision that was discussed in the concurrences.

[00:23:20] Speaker 00:
Here we go.

[00:23:23] Speaker 00:
And it is, I'm going to say this very slowly for the record, the Westlaw site for this is 2014 WL7740599.

[00:23:33] Speaker 00:
I apologize, these cases and the names are redacted.

[00:23:37] Speaker 00:
So I'm just going to call it the board case here.

[00:23:39] Speaker 00:
In that matter, the claimant requested the CV prior to the examination.

[00:23:46] Speaker 00:
The board found it to be an attempt to imbue certain litigation tactics and said there was no requirement at that point to provide the CV.

[00:23:58] Speaker 00:
But basically, wait until after the examination, see what the examination says, then ask for a CV if you disagree with it.

[00:24:05] Speaker 00:
That kind of situation, another situation, could be a distasteful, perhaps, request for a CV.

[00:24:09] Speaker 02:
So that's a timing thing about my question wasn't specific enough to say at what point do they have to ask for it.

[00:24:16] Speaker 00:
Well, I mean, your question to me, Your Honor, was, is there, does the duty assist require in every instance to provide the CV?

[00:24:23] Speaker 00:
And in that instance, we believe the board was correct.

[00:24:27] Speaker 00:
No, no, no.

[00:24:27] Speaker 00:
I'm sorry.

[00:24:28] Speaker 00:
Maybe I misunderstood.

[00:24:29] Speaker 00:
Oh, OK.

[00:24:30] Speaker 02:
I apologize.

[00:24:30] Speaker 02:
I'm looking at the instance where, let's assume, I mean, the first question is, do you, is it your view that the government affirmatively in every case, even if there's no request,

[00:24:41] Speaker 02:
that the government has to include that.

[00:24:43] Speaker 02:
So I assume that.

[00:24:47] Speaker 02:
So the second question would be, is it the government's view that at least, and Judge Dyke suggested this in his questioning of your friend, that at least when the complainant asks for it,

[00:24:59] Speaker 02:
Generally, you think of course it should be provided.

[00:25:03] Speaker 00:
Generally, yes.

[00:25:05] Speaker 00:
The board case I provided would be an example as to when it might not be appropriate.

[00:25:09] Speaker 02:
When there might be other circumstances.

[00:25:10] Speaker 02:
Correct.

[00:25:12] Speaker 02:
So then what happened?

[00:25:14] Speaker 02:
I mean, I'm just trying to follow through, work through this presumption of competency.

[00:25:20] Speaker 02:
Is that where the presumption in the government's view begins and ends?

[00:25:24] Speaker 02:
There's a presumption.

[00:25:25] Speaker 02:
We don't have to provide it with every single thing we do.

[00:25:29] Speaker 02:
Once they ask, yeah, of course, they ask.

[00:25:32] Speaker 02:
That's their burden.

[00:25:33] Speaker 02:
It's not an evidentiary burden.

[00:25:34] Speaker 02:
It's kind of a burden to request it.

[00:25:36] Speaker 00:
Correct.

[00:25:38] Speaker 02:
And then what happens?

[00:25:39] Speaker 02:
How is this issue adjudicated?

[00:25:41] Speaker 00:
Well, in a situation like this, where Mr. Franque is represented by counsel, it's incumbent upon Mr. Franque to then provide argument as to why this individual was not competent to provide a medical opinion.

[00:25:57] Speaker 00:
Otherwise, under 5107.

[00:25:59] Speaker 04:
Once he raises the issue, is the burden on the VA to show that the medical specialist was competent?

[00:26:08] Speaker 00:
Burden is on the, what the claimant would be trying to do would be to exclude evidence from consideration.

[00:26:16] Speaker 00:
5017 requires, B I think it is, 5017B requires consideration of all medical evidence in these cases.

[00:26:23] Speaker 00:
What the veteran would be asking to do.

[00:26:27] Speaker 04:
The Veterans Court has analogized, or maybe the board has analogized these medical examiners to expert witnesses.

[00:26:37] Speaker 04:
witness situation if you treat these as expert witnesses.

[00:26:41] Speaker 04:
The VA is relying on an expert witness.

[00:26:43] Speaker 04:
And normally in those situations, if you want your expert's testimony to be received, you have to show that the person is qualified.

[00:26:50] Speaker 04:
Correct.

[00:26:50] Speaker 04:
So why wouldn't, the veteran says, challenge the competency.

[00:26:57] Speaker 04:
treat it like a regular district court proceeding.

[00:26:59] Speaker 04:
Then the burden would be on the VA to show competency, right, to establish the qualifications of this individual.

[00:27:05] Speaker 00:
I think that would be, I mean, in that situation, Your Honor, we have already provided the CV and any information that goes along with the CV that would have information on

[00:27:16] Speaker 00:
the competency of that individual, perhaps with a specialty or what have you, the cases do discuss a need for a specific reason as to why the individual is not competent.

[00:27:29] Speaker 00:
And I think that fits with the system because the system requires consideration of all medical evidence.

[00:27:34] Speaker 00:
If we have a CV saying that an internist has experience in lower back disorders,

[00:27:40] Speaker 00:
And then we have a claimant say, the internist was not competent to provide testimony, or excuse me, an examination on my lower back disorder.

[00:27:51] Speaker 00:
It's incumbent upon the claimant at that point to say, why?

[00:27:55] Speaker 00:
What is wrong with what the CV says?

[00:27:56] Speaker 02:
OK, so in this instance, this is a little bit of a, it's not just based on general competency, like did this person go to Princeton and graduate at the top of his class.

[00:28:05] Speaker 02:
It's based on a specialization.

[00:28:07] Speaker 02:
So he comes forward.

[00:28:09] Speaker 02:
He asks for the information.

[00:28:10] Speaker 02:
You give him the CVs for these people.

[00:28:13] Speaker 02:
Clearly, it's no dispute that this person was an internist and not an orthopedic person.

[00:28:20] Speaker 02:
And then what?

[00:28:21] Speaker 02:
So he says, look, she's an internist.

[00:28:25] Speaker 02:
Everything we're talking about are back problems.

[00:28:28] Speaker 02:
In fact, an orthopedic surgeon is part of the duty to assist.

[00:28:31] Speaker 02:
You recognize that.

[00:28:32] Speaker 02:
I've been examined by that guy.

[00:28:35] Speaker 02:
That's the only guy that's examined me.

[00:28:37] Speaker 02:
So I've got a problem.

[00:28:39] Speaker 02:
I don't think this person was a specialist, appropriate specialist.

[00:28:43] Speaker 00:
Correct.

[00:28:44] Speaker 00:
That's an argument.

[00:28:44] Speaker 00:
Is that enough?

[00:28:46] Speaker 00:
That would be an argument.

[00:28:47] Speaker 02:
And then what happens with that issue?

[00:28:49] Speaker 00:
The board must decide that issue, provide reasons and bases to establish.

[00:28:54] Speaker 00:
The board will make a decision as to whether the medical officer was actually competent and provide reasons and bases explaining that decision.

[00:29:02] Speaker 02:
So if the board decides that the claimant is wrong and this person was an appropriate specialist, or in the more general case, this person was competent to perform the assigned duties, then the board does have an obligation to come up for the reasons and basis for why it reached that conclusion.

[00:29:21] Speaker 02:
That's correct.

[00:29:22] Speaker 02:
Not the veteran.

[00:29:23] Speaker 02:
So it's enough.

[00:29:24] Speaker 02:
I'm trying to see where the... Well, the argument has to be put forth by the... Well, the challenge, the nature of the... Is it correct to say it's not necessarily a matter of argument?

[00:29:35] Speaker 02:
It's like the nature of the challenge or the concern or the question has to be put forth.

[00:29:42] Speaker 02:
by the veteran.

[00:29:43] Speaker 02:
Correct.

[00:29:44] Speaker 02:
Because in a run-of-the-mill case, if you provide the CV, you don't know whether the challenge would be that they went to the wrong schools or whatever, or whether it really is a question of they weren't competent to perform the kind of duties they were asked for.

[00:29:58] Speaker 00:
Yeah, because we're talking about training, education, and experience.

[00:30:01] Speaker 00:
These are the things that are considered into our common evidence.

[00:30:03] Speaker 02:
Yeah, so he comes back and says, hey to it.

[00:30:05] Speaker 02:
Hey, wait a minute.

[00:30:07] Speaker 02:
back problem.

[00:30:09] Speaker 02:
This is not in this case, but in another case that doesn't involve a remand based on specialty.

[00:30:13] Speaker 02:
But he said, I have a back problem and there's nothing on this person's CV to show that she had any expertise in that area.

[00:30:22] Speaker 02:
That's sufficient.

[00:30:23] Speaker 02:
And then the board has to come in and say why that person was.

[00:30:29] Speaker 00:
In that situation, a board could find that that internist was not competent.

[00:30:35] Speaker 00:
Circling back, of course, as Your Honor points out, that's not the case we have here.

[00:30:38] Speaker 02:
But to me, I'm less concerned in my framework here about what the decision is.

[00:30:45] Speaker 02:
I want to find out who has to come forward with what arguments.

[00:30:48] Speaker 02:
And so what you're saying, they have to identify

[00:30:52] Speaker 02:
what the question or the issue is.

[00:30:54] Speaker 02:
But then it's up to the board to provide reasons and bases to justify its assertion of competency or specialization.

[00:31:02] Speaker 00:
Right.

[00:31:03] Speaker 00:
I mean, at that point, the issue, I guess you can say, is litigated before the board.

[00:31:06] Speaker 00:
And the board must make a ruling on it.

[00:31:08] Speaker 00:
And then if there's a disagreement with that ruling, it can go to the Veterans Court.

[00:31:11] Speaker 04:
OK.

[00:31:12] Speaker 04:
Just to be clear about this.

[00:31:13] Speaker 04:
So the government's position is that all the presumption of competency does

[00:31:19] Speaker 04:
is it puts the burden on the veteran to argue a lack of competency, and that once the veteran argues lack of competency, the effect of the presumption disappears.

[00:31:30] Speaker 00:
Yeah, the veteran must rebut the presumption, Your Honor, by providing an argument.

[00:31:34] Speaker 04:
Wait, wait, wait.

[00:31:35] Speaker 04:
Rebut sounds like evidence.

[00:31:37] Speaker 04:
I'm saying, is it true that once the veteran makes the argument about lack of competency, the presumption disappears?

[00:31:45] Speaker 00:
Oh, no, the presumption is not rebutted then.

[00:31:47] Speaker 00:
I mean, that's the entire point of it, Your Honor, is that there must be an argument made.

[00:31:53] Speaker 00:
Maybe we're talking past each other here.

[00:31:56] Speaker 04:
I don't think you understand me.

[00:31:58] Speaker 04:
What I'm saying is the veteran makes an argument that there's a lack of competency, OK, and properly raises the issue that way.

[00:32:06] Speaker 04:
At that point, the presumption disappears.

[00:32:09] Speaker 04:
It has no further benefit to the VA.

[00:32:15] Speaker 00:
So long as it's a colorable argument, Your Honor, in that scenario, yes.

[00:32:18] Speaker 00:
Yeah, if he points out this person didn't have a specialization.

[00:32:22] Speaker 00:
That argument must be addressed, Your Honor.

[00:32:24] Speaker 00:
It's not enough to just say, sorry, you raised this argument.

[00:32:28] Speaker 00:
We're not going to talk about it.

[00:32:29] Speaker 04:
And then the VA can't say, once the veteran raises the argument, VA can't come in and say, we're entitled to a presumption that this person was competent in addressing the competency issue.

[00:32:38] Speaker 04:
You've got to assume that he's competent.

[00:32:40] Speaker 00:
At that point, the VA should substantively respond to the argument.

[00:32:43] Speaker 04:
and can't rely anymore on the presumption.

[00:32:46] Speaker 00:
I don't think the board would let it, Your Honor.

[00:32:49] Speaker 00:
If Your Honors have no further questions, thank you.

[00:33:09] Speaker 01:
Thank you your honors I'd like to the government's position doesn't sound so terrible.

[00:33:13] Speaker 04:
What's what's the problem?

[00:33:15] Speaker 04:
You'd raise the are you?

[00:33:17] Speaker 04:
If you ask for the CV and the qualifications you get it if you raise the issue It has to be addressed on the merits and the VA doesn't get any benefit from the presumption.

[00:33:27] Speaker 04:
What's so terrible about that?

[00:33:29] Speaker 01:
Your Honor, I think that's simply not how it works under Rizzo.

[00:33:32] Speaker 01:
That's not an answer to my question.

[00:33:34] Speaker 01:
That is not an answer to my question.

[00:33:35] Speaker 04:
I am saying, if that's what it is, and that's all it is, what's the problem?

[00:33:40] Speaker 01:
If that's all it is, then I think it wouldn't be as big of a problem.

[00:33:45] Speaker 01:
However, that is not how the presumption has been applied in Rizzo and its progeny.

[00:33:51] Speaker 04:
It's not just that the veteran... I guess as we said that that's what it means based on the government's confession, that would be it, right?

[00:33:57] Speaker 01:
Well, Your Honor, I think that would be inconsistent with Rizzo and Bastion and Sickles and Parks.

[00:34:04] Speaker 01:
They say not only does the veteran have to raise the issue, the veteran has to supply a specific reason for thinking that the examiner is incompetent, which is difficult.

[00:34:14] Speaker 02:
Well, I don't know what that means in some cases.

[00:34:16] Speaker 02:
If they ask for the CV and they get the CV,

[00:34:21] Speaker 02:
What do you do?

[00:34:21] Speaker 02:
I mean, the problem normally, I assume, would be on the specialization front.

[00:34:26] Speaker 02:
Like, yeah, I got the CV and it shows that this person has no experience in orthopedic surgery and that's the issue this is about.

[00:34:37] Speaker 02:
That's all.

[00:34:38] Speaker 02:
Because otherwise, how does anybody ever adjudicate it if they don't know what the source of the complaint is?

[00:34:46] Speaker 02:
So don't you think that just for everybody's sake, including the veterans, we don't swim around for 10 years on remands and so forth to just identify the challenge.

[00:34:57] Speaker 01:
Well, I think the issue is that the veteran is not going to be able to even get the CV under Rizzo and its progeny unless he can articulate a specific... We're telling you, we hold that the government agrees that you get the CV when you ask for it.

[00:35:15] Speaker 04:
And that all the veteran has to do is to say, I looked at the CV, I don't see this guy has the required specialty.

[00:35:23] Speaker 04:
And then the presumption disappears.

[00:35:25] Speaker 01:
Understood, Your Honor.

[00:35:26] Speaker 01:
I think in the mine run of cases, that would be a much better system than the one we have today.

[00:35:31] Speaker 01:
I think, however, that on these facts, where there's a remand order that specifically requires a specialist, something more is required.

[00:35:39] Speaker 01:
There has to be an affirmative showing by the VA at the board level that the remand order has been applied with.

[00:35:45] Speaker 02:
Yeah, but the trick is, and so therefore, it doesn't even have to have been preserved.

[00:35:50] Speaker 02:
That's where I'm stuck, frankly.

[00:35:52] Speaker 01:
Well, two points in response, Your Honor.

[00:35:54] Speaker 01:
First of all, as the government conceded in response to Judge Dyke's question, Mr. Fransway did raise the issue of substantial compliance, generally speaking, before the board.

[00:36:05] Speaker 01:
We think that's enough.

[00:36:07] Speaker 01:
But even if you disagree with me on that,

[00:36:09] Speaker 01:
This court has held in Sullivan v. McDonald, a case we cited in our brief, that if the Veterans Court issues a decision on a point of law, then regardless of whether the veteran argued that point below, it's properly before this court.

[00:36:24] Speaker 01:
Here, the Veterans Court decided that the presumption of competency allowed it to assume that the internist was a specialist, and that's the legal holding that we're asking this court to review and reverse.

[00:36:37] Speaker 01:
I see I'm out of time.

[00:36:39] Speaker 01:
Thank you.

[00:36:40] Speaker 01:
Thank you.

[00:36:40] Speaker 02:
We thank both sides.

[00:36:42] Speaker 02:
The case is submitted.

[00:36:43] Speaker 02:
That concludes our proceeding for this morning.

[00:36:47] Speaker ?:
All rise.

[00:36:53] Speaker 04:
The honorable court is adjourned to tomorrow morning at