[00:00:13] Speaker 04: Our next case is number 19-1220, Sports versus Wilkie. [00:00:49] Speaker 04: Mr. Hontos. [00:00:55] Speaker 03: Thank you, Your Honor. [00:00:55] Speaker 03: Good morning. [00:00:56] Speaker 03: May it please the Court, Alex Hontos, on behalf of the veteran Nile T. Sports, Jr. [00:01:02] Speaker 03: The Court should reverse because the Secretary misinterpreted the rule of competency of lay evidence. [00:01:08] Speaker 03: This rule is embodied in 38 USC 1154 and 38 USC 5107. [00:01:15] Speaker 03: And this Court's precedence in cases like Jan Rowe, [00:01:18] Speaker 03: Davidson and Buchanan. [00:01:21] Speaker 03: In this case, there was no finding, there was no assessment by the secretary that the conditions that Mr. Sports tried to provide evidence about, neck and back conditions, were complex. [00:01:35] Speaker 03: That finding does not exist. [00:01:37] Speaker 04: What's missing here? [00:01:38] Speaker 04: The word complex? [00:01:39] Speaker 04: I mean, they certainly said that he lacked [00:01:43] Speaker 04: Medical training, this is the bill at 28, relaxed medical training or qualification to diagnose a cervical or lumbar spine disability. [00:01:52] Speaker 04: In other words, it's specific to the particular disability. [00:01:56] Speaker 04: What's missing? [00:01:58] Speaker 03: It's the threshold determination that that condition and that the subject of his testimony was not simple, was complex. [00:02:08] Speaker 03: If you look at Robinson, this court's decision... They have to use the word complex? [00:02:12] Speaker 03: Well, I don't think there's a necessarily magic words situation here, but there has to be that... But it's specific to the particular condition that's being diagnosed. [00:02:20] Speaker 04: It's not a general statement, which would be contrary to jandro in these other cases, that you can't consider lay evidence in for a diagnosis. [00:02:29] Speaker 04: It's just saying, he can't diagnose this particular condition. [00:02:35] Speaker 04: What's wrong with that? [00:02:37] Speaker 03: Well, I think the... [00:02:39] Speaker 03: under eleven fifty four as the court well knows this evidence comes in lay evidence must be considered if that's the case then i don't think it's too much to add lay evidence has to be considered if the lay evidence isn't competent is incompetent correct that's the exception to the general rule but the general rule is lay evidence is considered and if that's the case then it should be clear in the record [00:03:00] Speaker 03: that the secretary has assessed the specific evidence and provided some determination at step one, a threshold analysis, that it is a complex condition beyond the ken of a layperson. [00:03:12] Speaker 03: In Jan. [00:03:13] Speaker 03: footnote four, this court gave an example. [00:03:15] Speaker 03: It said something like cancer might be beyond the ken of a layperson and could be zeroed out. [00:03:21] Speaker 03: That evidence is not considered by the secretary on a competency basis. [00:03:26] Speaker 03: contrast that with a broken leg. [00:03:28] Speaker 03: That evidence could be amenable to a determination and to testimony. [00:03:34] Speaker 03: And in this case, there was no determination that these specific conditions [00:03:39] Speaker 03: are more like cancer or more like a broken life. [00:03:42] Speaker 01: I'm having a little bit of trouble with some of the terminology here. [00:03:46] Speaker 01: What specifically is the evidence that reading the board, I think the most natural way, the board said was not competent? [00:03:59] Speaker 03: Well, the evidence of the board, okay, he tried, the veteran in reporting to his doctors, and it's in the medical reports, basically said, my neck, my back pain, existed from the very severe car accident that I experienced in service. [00:04:19] Speaker 01: That evidence was- So the evidence is his assertion about a causal connection. [00:04:25] Speaker 03: Correct. [00:04:26] Speaker 03: That was the evidence that was excluded. [00:04:27] Speaker 01: Because he could testify my lower back, my upper back perched like Dickens. [00:04:33] Speaker 03: Absolutely. [00:04:34] Speaker 01: My movement is very painful. [00:04:37] Speaker 03: Right. [00:04:37] Speaker 01: So it's the next step of, did he offer testimony, propose to assert that my disc has collapsed, something about the physical condition of the inside of the spine. [00:04:57] Speaker 03: He didn't go that far. [00:04:58] Speaker 01: That wasn't in the medical... So it's the testimony or the evidence, the assertion that this is attributable to my jumping out of a plane with an 80-pound backpack, and I forget whether he also attributed it to the car accident. [00:05:13] Speaker 03: Correct, yeah. [00:05:14] Speaker 03: The only thing that was missing here was Nexus evidence. [00:05:16] Speaker 03: It was undisputed he was in a severe car accident in service. [00:05:20] Speaker 03: It is undisputed that he has serious back pain and has undergone multiple surgeries because of it. [00:05:25] Speaker 03: So the Nexus evidence, he was trying to provide. [00:05:28] Speaker 03: That came in through his reports to a VA medical examiner. [00:05:32] Speaker 03: They're in the joint appendix, we cite them, where he basically said, this happened, and I've been experiencing the same pain since 1979 when I was in that severe car accident. [00:05:41] Speaker 04: It's just the time proximity. [00:05:43] Speaker 03: I'm sorry, Your Honor? [00:05:44] Speaker 04: It's the time proximity. [00:05:47] Speaker 03: It's the time proximity? [00:05:48] Speaker 03: Yes. [00:05:50] Speaker 03: He says, I experienced that since 1979, and that evidence was the evidence that was zeroed out. [00:05:57] Speaker 03: The secretary didn't put it on the scale at all, didn't weigh it at all. [00:06:01] Speaker 03: And I think that that comes back to this court's precedence. [00:06:06] Speaker 03: And in cases like Jandreau, Jandreau said, it's not sufficient for the secretary to simply say that medical evidence is required. [00:06:12] Speaker 02: Well, the board did. [00:06:15] Speaker 02: take into account and credit Mr. Sports' testimony that he's been suffering back pain since 1979. [00:06:23] Speaker 02: It did. [00:06:24] Speaker 02: It's just a question of whether [00:06:27] Speaker 02: In the board's view, did Mr. Sports say something enough that his degenerative disc disease that he's currently suffering from, is he competent to say that that was caused by that motor accident in 1979? [00:06:44] Speaker 03: And that's the very question. [00:06:47] Speaker 03: That's what we want clarity in the record. [00:06:49] Speaker 03: And that's what Jan Groh, Buchanan, and Nicholson, and Robinson are all about. [00:06:53] Speaker 04: I don't understand why it's not clear. [00:06:56] Speaker 04: I mean, the board said he's not competent to diagnose this particular condition. [00:07:03] Speaker 03: To get to that step, one has to make a threshold determination that this is a complex condition beyond the can of a layperson. [00:07:12] Speaker 03: And that's what we're saying didn't happen here. [00:07:14] Speaker 03: We want the secretary to have to, if it's going to zero out evidence, the secretary should have to put in the record, consistent with 1154 and this court's precedents, a statement that these conditions are complex. [00:07:25] Speaker 03: These conditions are, in fact, beyond the Kennevale person. [00:07:28] Speaker 03: That's not here. [00:07:29] Speaker 03: The Veterans Court acknowledged it wasn't here. [00:07:33] Speaker 03: The secretary below did not argue that it was here. [00:07:37] Speaker 03: The Veterans Court, as you know, went right to this harmless air analysis. [00:07:42] Speaker 01: Address that, would you? [00:07:44] Speaker 01: As I read it, and just correct me if I'm reading it incorrectly, the Veterans Court said, [00:07:52] Speaker 01: We do kind of read the board, at least as not explicitly, I think was the Veterans Court's word, saying you're not competent to testify, to make an assertion about this causal connection. [00:08:09] Speaker 01: But you, the veteran, have not, for prejudicial error purposes, and I'm now going to summarize, given us any hint of how you could even possibly be competent. [00:08:22] Speaker 01: And therefore, you haven't met some threshold of establishing prejudicial error from the omission that we will say is actually in the board decision. [00:08:33] Speaker 01: That is, we do think there's an omission, but you haven't given us a hint about why it could matter. [00:08:39] Speaker 03: I think this gets to the prejudicial error, if you will. [00:08:45] Speaker 03: And this is where there was this conflation by the Veterans Court of the substantive standard under 1154. [00:08:51] Speaker 03: And remember, the only thing that was missing was Nexus evidence. [00:08:55] Speaker 03: His claim would have been granted, but for Nexus evidence. [00:08:58] Speaker 03: He tried to provide that. [00:08:59] Speaker 03: It was zeroed out. [00:09:01] Speaker 03: And the Veterans Court nonetheless concluded that because he hadn't met the underlying 1154 standard, apparently, that that was insufficient for purposes of showing harm. [00:09:13] Speaker 04: Yeah, but the heinous error finding is a fact finding, isn't it? [00:09:17] Speaker 03: It is a fact finding. [00:09:17] Speaker 03: We're not asking this court. [00:09:18] Speaker 03: The court lacks jurisdiction to revisit a proper finding on prejudicial error. [00:09:24] Speaker 04: How can we rule for you if we don't revisit that issue? [00:09:27] Speaker 03: Because the court certainly has jurisdiction to look at the application or the interpretation of the prejudicial error standard. [00:09:34] Speaker 03: And if you look at what the Veterans Court here did, the Veterans Court didn't say, well, let's assume there was error with respect to this slay testimony. [00:09:42] Speaker 03: But there was overwhelming evidence, for example, and I'm just giving a hypothetical. [00:09:47] Speaker 03: There was overwhelming evidence that he didn't have this condition. [00:09:51] Speaker 04: So you're suggesting that the Veterans Court had to say something more about [00:09:57] Speaker 04: and that was the legal error in the decision? [00:10:01] Speaker 03: I'm saying that the Veterans Court conflated the prejudicial error test with the substantive test under 1154. [00:10:07] Speaker 03: That the Veterans Court didn't make what you would ordinarily see in sort of a belt and suspenders, prejudicial error analysis. [00:10:16] Speaker 03: The Veterans Court said, because Mr. Sports, a pro se veteran with a traumatic brain injury, didn't, at their RO level, [00:10:25] Speaker 03: provide additional evidence that he was competent to testify prophylactically and preemptively that there was no prejudicial error. [00:10:33] Speaker 03: And what we're saying is that's not the standard. [00:10:35] Speaker 03: That hollows out 1154. [00:10:37] Speaker 03: 1154 is meaningless if a veteran has to prophylactically provide [00:10:43] Speaker 03: Two pieces of evidence. [00:10:44] Speaker 03: One, the fact that the veteran wants to testify about, my back has been hurting like the Dickens since I got in that car accident. [00:10:53] Speaker 03: And footnote to fact one, I'm competent to testify about that because I'm a doctor. [00:10:57] Speaker 03: I'm competent to testify about that because it's a simple condition. [00:11:01] Speaker 03: That standard is totally inconsistent and is the functional and practical effect of the secretary's ruling here and the secretary's position to this court. [00:11:10] Speaker 03: And so we asked that the court take that into consideration. [00:11:13] Speaker 03: It's not too much to ask for the secretary to have to explain, in clear terms, why it's going to zero out someone's evidence in the face of 1154. [00:11:23] Speaker 03: I see that I'm in my rebuttal time. [00:11:26] Speaker 03: I'll serve further questions. [00:11:34] Speaker 04: Okay. [00:11:34] Speaker 04: Mr. Lovegrove. [00:11:41] Speaker 00: May it please the court, the assumption behind this appeal that the board somehow zeroed out, or excluded, or disregarded, or failed to consider Mr. Sports' late testimony is demonstrably incorrect. [00:11:55] Speaker 00: The record shows that the board considered the late testimony, that the examiner considered the late testimony, and made a factual determination that such testimony did not support a finding of service connection. [00:12:10] Speaker 04: There wasn't help. [00:12:12] Speaker 04: That it wasn't competent. [00:12:14] Speaker 00: That it wasn't competent to support the Nexus, that portion of the service connection. [00:12:19] Speaker 02: So for purposes of Nexus, that late testimony was zeroed out because it was deemed incompetent. [00:12:25] Speaker 02: Well, it wasn't zeroed out, Your Honor, because- For purposes of establishing service connection, Nexus? [00:12:30] Speaker 00: Well, it was considered in the sense of, can this evidence demonstrate the nexus portion of it? [00:12:36] Speaker 00: And they made a determination that, no, it wasn't competent. [00:12:39] Speaker 04: I don't understand what your argument is. [00:12:40] Speaker 04: I mean, the board basically said that he's not competent to testify about this particular condition. [00:12:48] Speaker 04: And therefore, we're not going to give any weight to the testimony. [00:12:52] Speaker 04: That's the proposition that you have to defend. [00:12:55] Speaker 04: I don't know why you're running away from it. [00:12:57] Speaker 00: Well, we're not running away from it, Your Honor. [00:12:59] Speaker 00: We're saying that, you know, this wasn't a case like in Janjer or Buchanan where the board said this can lay evidence or lay testimony can never. [00:13:09] Speaker 04: No, they related to the particular condition. [00:13:12] Speaker 00: Absolutely. [00:13:13] Speaker 00: So Mr. Sports wasn't denied service connection because there was the absence of Nexus evidence. [00:13:21] Speaker 00: Mr. Sports was denied service connection because the record evidence demonstrated the absence of a Nexus. [00:13:27] Speaker 00: Ultimately, Mr. Sports has argued that there should be more clarity in the record. [00:13:34] Speaker 00: It should be clear in the record. [00:13:35] Speaker 00: is essentially a reasons and bases challenge. [00:13:39] Speaker 00: That there wasn't a sufficient explanation as to why arthritis, spinal arthritis causation is a complicated medical condition that requires some sort of specialized knowledge. [00:13:53] Speaker 00: And that's a factual question that's beyond the court's jurisdiction. [00:13:58] Speaker 02: Is what the board [00:14:02] Speaker 02: did hear inconsistent with a non-precedential opinion from this court called Robinson, which seems to suggest that there's some two-step analytical framework that the VA needs to undertake, with step one being make a determination initially as to whether the lay witness can in fact [00:14:31] Speaker 02: credibly testify about this particular injury, about possible nexus for this injury as to whether it's a complex disease or injury versus a fairly self-evident one? [00:14:45] Speaker 00: Well, the remand order in Robinson was specific to that case, and it wasn't a precedential decision. [00:14:53] Speaker 00: The Robinson case was in a unique procedural posture because the board considered that case before this court issued the Jandro, Buchanan, and Davidson decisions. [00:15:03] Speaker 00: So it didn't have the information from this court as to what is the correct standard by which to determine the competency of lay testimony. [00:15:16] Speaker 04: Why isn't your argument that they did hear what Robinson asked for? [00:15:22] Speaker 04: They made a determination that was specific to this condition, that the veteran wasn't competent to testify to it. [00:15:29] Speaker 04: Does Robinson require anything more than that? [00:15:33] Speaker 04: No. [00:15:36] Speaker 00: I'm not sure what else to say then. [00:15:38] Speaker 00: I mean, this is a case essentially where the board did what it was supposed to do. [00:15:41] Speaker 00: It looked at the lay testimony, it analyzed it and determined whether it was competent to provide, to get Mr. Sports where he needed to be and determined that [00:15:52] Speaker 00: That it wasn't. [00:15:54] Speaker 00: It wasn't that they excluded it or refused to look at it at all. [00:15:58] Speaker 00: It just said that it wasn't competent to show what he needed it to show. [00:16:03] Speaker 01: Just to be clear, because it's not clear to me that you're taking in a distinction that I think exists and I think maybe we've been discussing. [00:16:14] Speaker 01: There are only three relevant sentences of the board decision, right, of page appendix 28. [00:16:22] Speaker 01: I thought, as I was preparing for this case, there were two separate possible interpretations, and I guess I ultimately persuaded myself the second one was not meaningfully available. [00:16:34] Speaker 01: One interpretation is, on the specific issue of causal connection, Mr. Sports is not competent to offer a view, and therefore his view counts for nothing. [00:16:48] Speaker 01: A second, and the phrase that comes after the word and, right, and does not refute, suggests maybe the board was taking it into account, weighing it against the medical evidence, so not ruling it out as incompetent, just weighing it and saying it's not enough. [00:17:09] Speaker 01: The Veterans Court clearly did not read the board opinion [00:17:14] Speaker 01: in the second way. [00:17:16] Speaker 01: It said the board treated this as not competent. [00:17:22] Speaker 01: You have an argument that under the Jandro, et cetera, standards, that view of the opinion is perfectly fine. [00:17:31] Speaker 01: But that's different from saying the board weighed the evidence and just found it insufficient. [00:17:39] Speaker 00: The distinction here is [00:17:43] Speaker 00: What the board did is it considered the evidence. [00:17:47] Speaker 00: It considered this lay testimony and made a determination. [00:17:51] Speaker 00: Does this lay testimony support the nexus determination that Mr. Sports needs it to do in order to demonstrate, or not even demonstrate, in order to get across the line to support a claim for service connection? [00:18:09] Speaker 00: it made that determination that it was not competent to meet that. [00:18:13] Speaker 00: And because it wasn't competent and because there was also credibility issues that were mentioned later in the decision, such information could not [00:18:22] Speaker 00: somehow supplant or overcome the actual medical evidence in the record and the actual medical examiner's opinion, which took into account the possibility of Mr. Sport's late testimony and explain why such testimony wasn't going to get him across the line. [00:18:44] Speaker 00: In a sense, the medical examiner considered the lay testimony, took it at face value, and gave an opinion and explained why this testimony doesn't show causation, or why this testimony is inconsistent really with medical studies, and why his testimony is inconsistent with the medical records in the file. [00:19:14] Speaker 00: The board, in a sense, when it found that the VA examiner's opinion was the most probative, took into account that the VA examiner considered the lay testimony. [00:19:26] Speaker 00: So it's hard to say that it didn't consider it, or it said it gave it no weight, because it was part and parcel of the VA examiner's opinion, which it found to be the most probative. [00:19:38] Speaker 04: Where do we find his testimony about the nexus? [00:19:42] Speaker 00: Where do we find Mr. Sports' testimony? [00:19:45] Speaker 00: It's cited at 264 to 265. [00:19:52] Speaker 02: This is in the 2014 medical examination report? [00:19:59] Speaker 00: Yes. [00:19:59] Speaker 02: 265. [00:20:04] Speaker 04: It starts at 264. [00:20:10] Speaker 04: Where's the testimony about this point? [00:20:14] Speaker 00: Well, it says onset, you know, when he has the veteran's states, you know. [00:20:17] Speaker 00: In the lower section of 264. [00:20:19] Speaker 00: Thank you, on the lower section of 264. [00:20:22] Speaker 04: So what he testified to was that the onset was soon after the trauma. [00:20:28] Speaker 04: Yeah, he said my back hurt after this trauma, yes. [00:20:31] Speaker 04: And that testimony was considered, right? [00:20:34] Speaker 00: Yes. [00:20:34] Speaker 04: Where does he say that because of that temporal proximity, I think that was the cause? [00:20:43] Speaker 00: The closest thing in here, I mean, what he says is there's nothing that says, my arthritis. [00:20:51] Speaker 00: It's about back pain and my back problems. [00:20:54] Speaker 00: But he doesn't say, there's nothing explicit that he even says. [00:20:58] Speaker 00: to support that my arthritis was the product of this 1979 injury or this jumping. [00:21:08] Speaker 04: So he testified to the temporal proximity and that testimony was considered, right? [00:21:13] Speaker 04: Absolutely. [00:21:14] Speaker 04: And not considered to be incompetent. [00:21:16] Speaker 00: That's correct. [00:21:20] Speaker 02: We've been talking a lot about the board decision. [00:21:22] Speaker 02: Our role here is to review the Veterans Court decision, right? [00:21:27] Speaker 02: Yes. [00:21:28] Speaker 02: And veterans court decision hinges on this no prejudicial error ruling, right? [00:21:36] Speaker 02: Yes. [00:21:37] Speaker 02: And that no prejudicial error ruling is based on an assumption that this court's case law requires some kind of express separate finding, initial finding, as to whether or not [00:21:54] Speaker 02: the veteran is competent to diagnose or opine on nexus for a particular injury or disease. [00:22:06] Speaker 02: Is that right? [00:22:07] Speaker 00: The veteran's court decision does seem to suggest that, yes. [00:22:11] Speaker 00: I mean, it says that's the issue, that there wasn't an explicit determination, but the error wasn't prejudicial. [00:22:17] Speaker 02: Right. [00:22:17] Speaker 02: So I guess what I'm trying to figure out here is to affirm the veteran's court [00:22:25] Speaker 02: We don't have a ruling from the Veterans Court that's consistent with what your current position is on appeal, which is to say that your view is our case law doesn't require this extra procedural requirement. [00:22:42] Speaker 00: That's correct. [00:22:42] Speaker 00: We believe, I guess, that the Veterans Court was a little more, I guess, [00:22:51] Speaker 00: I get a little more protective or a little more careful. [00:22:53] Speaker 02: So then what would you want this court to say? [00:22:55] Speaker 02: To say that the veteran's court's assumption that such a procedure requirement exists in the law was erroneous, but such a erroneous assumption is harmless because in fact the appellant's position that there is such a requirement is untrue. [00:23:18] Speaker 00: Ultimately, we believe that the case should be dismissed for lack of jurisdiction, because these are all fact questions. [00:23:24] Speaker 04: The question is, if the Veterans Court said the board made a legal error by not articulating the lack of competency more clearly or in greater detail, [00:23:41] Speaker 04: That is an issue that we could review, right? [00:23:44] Speaker 04: We don't have to accept, in these cases, a determination by the board or existence of legal error by the Veterans Board. [00:23:54] Speaker 00: That's correct. [00:23:56] Speaker 00: So can you please repeat the question? [00:24:01] Speaker 00: I want to make sure I answer it correctly. [00:24:04] Speaker 04: We have a case here. [00:24:06] Speaker 04: potentially viewing the Veterans Court as saying that the board made a legal error by not providing a more detailed explanation. [00:24:14] Speaker 04: We can review that. [00:24:16] Speaker 04: Can we not to determine whether the board, in fact, made a legal error? [00:24:23] Speaker 00: I'm not sure. [00:24:29] Speaker 01: And skip the question of prejudicial error. [00:24:32] Speaker 00: The court doesn't have to reach the question of prejudicial error. [00:24:35] Speaker 00: The court could say that there is no error to begin with. [00:24:40] Speaker 01: Can I ask you a different what can we decide question? [00:24:47] Speaker 01: Is it your view that [00:24:49] Speaker 01: although both the board and the Veterans Court talked about treating certain proffered evidence as incompetent. [00:25:01] Speaker 01: In fact, there was no evidence proffered that the board declined to look at. [00:25:12] Speaker 00: There was no evidence that the board said we are not going to look at at all. [00:25:20] Speaker 01: This, I guess, goes back to this. [00:25:22] Speaker 01: We were looking at 281, 282, where, again, everybody seems to be assuming that Mr. Sportz proffered evidence in the form of his own assertion that the board said, whether or not it said it's too weak or it's incompetent, people are assuming that he made this assertion. [00:25:49] Speaker 01: I'm not sure I see it on here. [00:25:53] Speaker 00: You don't see it because it's not necessarily explicit. [00:25:57] Speaker 00: We are considering the evidence in favor of the veteran and the veteran's assertions that this was somehow at his current condition is related to a service and a service injury. [00:26:06] Speaker 00: So taking the veteran at his word and considering the evidence in the light most favorable to the veteran, it still doesn't even get him across the line. [00:26:18] Speaker 00: Finally, just to wrap up, we respectfully request that the court affirm the decision of the Veterans Court. [00:26:28] Speaker 00: And if the court has no further questions, we rest. [00:26:33] Speaker 04: Thank you. [00:26:34] Speaker 00: Thank you. [00:26:37] Speaker 04: Mr. Hondas? [00:26:38] Speaker 03: Thank you, Your Honor, very briefly. [00:26:40] Speaker 03: There is evidence of record. [00:26:42] Speaker 03: If you look at Joint Appendix 50, 53, and 54, these are in-service treatment records where Mr. Sports is reporting his back pain, low back pain, and the like. [00:26:53] Speaker 03: There is, as the Court noted, at 264 and 265. [00:26:56] Speaker 04: But they didn't dismiss that evidence, right? [00:26:59] Speaker 04: That was considered. [00:27:01] Speaker 04: He's not incompetent to testify that he had lower back pain. [00:27:04] Speaker 04: Nobody's suggesting that he was. [00:27:06] Speaker 03: Right, but we get to this question of what did the board evaluate his evidence for? [00:27:12] Speaker 03: They said he is incompetent to testify as to nexus. [00:27:16] Speaker 04: That doesn't mean he's incompetent to testify that he had back pain soon after the trauma. [00:27:23] Speaker 04: And they did consider that evidence, right? [00:27:26] Speaker 03: Agreed. [00:27:26] Speaker 03: Agreed. [00:27:27] Speaker 03: But here's the problem. [00:27:28] Speaker 03: Nexus is not a particularly hard thing to show. [00:27:33] Speaker 03: And the secretary hasn't argued that there's some high hurdle for nexus. [00:27:38] Speaker 03: Nexus can be shown by lay evidence. [00:27:40] Speaker 03: And if the board said we're zeroing out his testimony, which is, I think, the fairest reading of what the secretary was doing here. [00:27:46] Speaker 04: No, I don't think that's correct that they zeroed out his testimony. [00:27:48] Speaker 04: To the extent that he testified to [00:27:51] Speaker 04: Causation, yes, you can say that they zeroed it out, but they didn't zero out his testimony because they did consider his testimony about the temporal relationship. [00:28:03] Speaker 03: this court has said that the issues of causation and ideology are subject to lay testimony which gets us back to the... They can be, it doesn't say they are. [00:28:12] Speaker 03: Agreed, agreed. [00:28:13] Speaker 03: But it gets us back to is this a sufficient basis to reject someone's testimony, a veteran's testimony in the face of 1154? [00:28:21] Speaker 03: And going back to the court's question about the board's language at joint appendix 28, [00:28:26] Speaker 03: Simply to say he lacks the medical training or qualification to diagnose a cervical or lumbar spine disability, that fact may be true, it may be not true. [00:28:37] Speaker 03: But before you get to that point, you have to make a determination that those are complex conditions, that those are something that are beyond the ken of a lay person. [00:28:46] Speaker 03: And that's what we're saying is fundamentally missing here. [00:28:48] Speaker 02: So if the board had added an extra sentence, [00:28:51] Speaker 02: at the top of the paragraph to say, we find that when it comes to the disease of degenerative disc disease, that's a very complex one and it requires some kind of medical training in order to diagnose or opine on etiology. [00:29:13] Speaker 02: Would that have been enough? [00:29:15] Speaker 03: That would have been enough. [00:29:16] Speaker 03: That's all we're asking for here, is that considered determination. [00:29:20] Speaker 03: And again, in light of 1154, in light of the language in Jandro that says the traditional standards for admissibility of evidence are relaxed in these cases. [00:29:29] Speaker 03: That's all we're asking for. [00:29:30] Speaker 03: Otherwise, you hollow out Buchanan, Davidson, Jandro, all of those cases. [00:29:35] Speaker 03: What do they mean if the secretary can simply say, [00:29:38] Speaker 03: And sort of assume. [00:29:39] Speaker 04: Well, what they mean is there was a blanket refusal to consider lay evidence on these questions. [00:29:44] Speaker 04: And Jan Barrow in these other cases says that wrong. [00:29:47] Speaker 04: That's wrong. [00:29:47] Speaker 04: That's a legal error. [00:29:49] Speaker 03: Agreed. [00:29:49] Speaker 03: But that's not, sorry. [00:29:52] Speaker 04: And if the board here had said we can't consider lay evidence on the question of causation, that would probably be a legal error. [00:30:02] Speaker 04: But that's not what they said. [00:30:04] Speaker 04: They said they related it to the specific condition. [00:30:07] Speaker 03: I fully appreciate that, but there are more than one way, there's more than one way to screw up 1154. [00:30:13] Speaker 03: That's the plainest way I can say it. [00:30:15] Speaker 03: One way to screw it up is to say lay testimony could never be considered. [00:30:20] Speaker 03: It's just totally insufficient under any circumstance. [00:30:23] Speaker 03: Another instance would be Jandro footnote four, a broken leg, something that a veteran can absolutely testify about nexus, etiology, causation, the whole gamut. [00:30:34] Speaker 03: If that is zeroed out without a determination that it is in fact something that is complex, then that's 1154 error as well. [00:30:42] Speaker 03: And so we understand, and I'm not here arguing that this case is on all fours with Jandro. [00:30:48] Speaker 03: Jandro did involve this sort of categorical rejection of lay evidence writ large. [00:30:52] Speaker 03: What we're saying is 1154 can be screwed up in more than one way, and this court should fix that by incorporating some kind of a requirement and clarification [00:31:01] Speaker 03: that the court just described, that you have to have the threshold determination. [00:31:06] Speaker 03: Veterans deserve it. [00:31:06] Speaker 03: If their evidence is going to be zeroed out, the least the Secretary can do is to say, we considered it, and you're not competent. [00:31:13] Speaker 03: I see my time has expired. [00:31:14] Speaker 03: Thank you. [00:31:14] Speaker 04: Thank you, Mr. Chairman. [00:31:15] Speaker 04: Was your representation pro bono here? [00:31:17] Speaker 03: It was. [00:31:18] Speaker 04: OK. [00:31:18] Speaker 04: The court thanks you very much. [00:31:19] Speaker 04: Thank you.