[00:00:32] Speaker 02: May it please the court, Kenneth Carpenter appearing on behalf of Mr. Horace Worley. [00:00:36] Speaker 01: Mr. Carpenter, at page 6 of your opening brief, you seem to say that Deloach creates a legal right for an appellant not to be subjected to a remand. [00:00:49] Speaker 01: Where does Deloach say that? [00:01:00] Speaker 02: Well, Your Honor, I believe [00:01:02] Speaker 02: What I was attempting to say was that Deloach implicates the legal right not to be subjected to a remand. [00:01:09] Speaker 02: Not that it excludes remand as a possibility. [00:01:14] Speaker 01: Obviously, the judgment... But where does Deloach say that? [00:01:19] Speaker 02: That it creates that right? [00:01:23] Speaker 02: Well, I believe it says it at page 1377 that I cited too. [00:01:29] Speaker 02: We believe that Mr. Worley had [00:01:32] Speaker 02: a right as a matter of law to a reversal and not to a remand. [00:01:37] Speaker 02: That a remand has the express purpose of developing the record to the ultimate determination of entitlement. [00:01:45] Speaker 04: In this case... The board in this case, though, sort of said two things. [00:01:52] Speaker 04: Well, the Veterans Court, it said the board provided inadequate reasons or bases for its exclusive reliance on Ms. [00:01:59] Speaker 04: Donnelly's assessment. [00:02:01] Speaker 04: And it said, go back and provide more explanation. [00:02:06] Speaker 04: And then it also seemed to open the door to further development of evidence. [00:02:09] Speaker 04: These are two completely different concepts in my mind, one of which is fully supported by Adams and other cases. [00:02:17] Speaker 04: And that's namely that the CABC can say, I can't review this because you didn't explain to me why Ms. [00:02:24] Speaker 04: Donley's testimony ought to carry the day. [00:02:28] Speaker 04: I mean, she's only a nurse practitioner. [00:02:29] Speaker 04: She's not even a doctor. [00:02:31] Speaker 04: Why is her testimony standing alone so persuasive? [00:02:35] Speaker 04: It's somewhat superficial in nature and what really is going on here? [00:02:40] Speaker 04: That to me seems like a legitimate exercise for a court. [00:02:43] Speaker 04: Anytime they're receiving an opinion, the depths of which they don't understand and can't ascertain because it's too cursorily written, isn't it okay for them to say, I need more explanation because I don't understand this? [00:02:58] Speaker 02: In the normal course of an appeal, [00:02:59] Speaker 02: As to a question of fact, I believe that that is correct, Your Honor. [00:03:04] Speaker 02: However, in the context of a statutory presumption in which that presumption has attached, based upon the plain language as this Court interpreted the statute, that the presumption attaches when there is no notation at the entrance to service. [00:03:21] Speaker 02: As a result, Mr. Worley had the benefit of that presumption until that presumption was rebutted. [00:03:28] Speaker 02: We were in the rebuttal stage, if you will, of whether or not that presumption would continue. [00:03:35] Speaker 04: And in this context, when... I'm sorry, I thought this was a question about whether or not the migraine disorder was aggravated during service. [00:03:46] Speaker 04: That's correct, but that's the second... So that's not the same issue as a presumption based on soundness when you come in. [00:03:54] Speaker 04: So I thought this was more of an aggravation case. [00:03:57] Speaker 02: No, I'm sorry, Your Honor. [00:03:58] Speaker 02: I believe that the distinction that this court made in Wagner was that the presumption issue is the second prong of the presumption of soundness. [00:04:09] Speaker 02: So this is a presumption of soundness question. [00:04:12] Speaker 02: It goes to the second prong of the presumption of soundness. [00:04:18] Speaker 03: Let me see if I can understand. [00:04:19] Speaker 03: You're saying there are really two pieces here. [00:04:22] Speaker 02: Yes. [00:04:22] Speaker 03: So he didn't note that he had headaches in his entrance [00:04:27] Speaker 03: So the VA has to look at two things. [00:04:31] Speaker 03: One, whether he really did have pre-existing headaches. [00:04:34] Speaker 03: And I don't think you're challenging that anymore, although that was the subject of a lot of ink spilled below and a lot of time because your client was claiming he didn't. [00:04:43] Speaker 03: But you're not challenging the conclusion that the VA has established that he had headaches beforehand, right? [00:04:52] Speaker 03: i wouldn't know if i don't know i believe we're still challenging that that's just not hard one of the proceed you're challenging that there's enough evidence to support the conclusion there's not enough evidence to support the conclusion that the c a b c reached i was correct i'm saying i'm conceding that for the purpose of this argument oh okay well that's no that's just what i want to be clear so you're just talking about aggravation so your position is just this goes to judge moore's question [00:05:22] Speaker 03: That even though he should have put it on his entrance exam and he didn't, and we've established that he had headaches early on, the VA still has to establish that those headaches that he had starting at age seven were not aggravated during his years of service. [00:05:41] Speaker 02: That's correct, Your Honor. [00:05:42] Speaker 02: However, let me clarify. [00:05:43] Speaker 03: You're saying that they didn't do that. [00:05:47] Speaker 04: Well, and that's my question. [00:05:50] Speaker 04: I'm sorry. [00:05:51] Speaker 04: But she hit the nail on the head and articulated it obviously better than I apparently had. [00:05:55] Speaker 04: But Ms. [00:05:56] Speaker 04: Donley said, quote, they clearly and unmistakably existed prior to service and were not aggravate and were not aggravated beyond their natural progression due to service. [00:06:10] Speaker 04: So that is this nurse practitioner. [00:06:13] Speaker 04: And that to me is [00:06:15] Speaker 04: I thought what I understood you mainly to be appealing. [00:06:21] Speaker 04: Am I wrong? [00:06:22] Speaker 02: I mean, it's... I believe, I hesitate to say this, but I believe that you are not correctly interpreting our position. [00:06:31] Speaker 02: Our position is that the second prong of the presumption of soundness, the question of whether or not the government met by clear and unmistakable evidence a showing that the condition was not [00:06:45] Speaker 02: They have to prove a negative. [00:06:47] Speaker 04: She testified to it. [00:06:49] Speaker 04: She affirmatively said that clear and unmistakable. [00:06:53] Speaker 04: And so the board relied on that and the Veterans Court said that's conclusory. [00:07:00] Speaker 04: Granted, it's a nurse practitioner. [00:07:02] Speaker 04: It's not even a doctor. [00:07:03] Speaker 04: I need more explanation. [00:07:05] Speaker 04: I need you to go back. [00:07:06] Speaker 04: It may well be. [00:07:08] Speaker 04: That the state of the evidence of record doesn't support what they did. [00:07:12] Speaker 04: I guess where I was hoping you and I were going to go in this discussion. [00:07:15] Speaker 04: I'll just lay it all out for you is that I don't see any problem with the remand and I think anytime reviewing court feels like it can't understand the decision in part because the decision isn't adequately explained. [00:07:27] Speaker 04: So you don't have reasons and bases in order to review. [00:07:30] Speaker 04: There isn't a problem with a remand for that purpose. [00:07:33] Speaker 04: Here, I'll tell you, I think the board went too far. [00:07:35] Speaker 04: I think they also opened the door to the introduction of new evidence, and I don't think the VA gets a do-over on its proof. [00:07:43] Speaker 04: If the VA below wants to say Nurse Donnelly's testimony alone was enough because here's why, that's fine. [00:07:49] Speaker 04: But what they don't get to do is supplement the record. [00:07:52] Speaker 04: So I actually think there's a mistake here that has occurred, and maybe a modification to the remand order is necessary. [00:07:58] Speaker 04: But I don't see how you can convince me that a remand itself in its entirety isn't appropriate. [00:08:07] Speaker 02: Respectfully, Your Honor. [00:08:09] Speaker 04: I appreciate that, Your Honor. [00:08:11] Speaker 04: I'm in a place that you should at least be modestly happy about. [00:08:14] Speaker 02: A half a loaf is better than no loaf, Your Honor. [00:08:17] Speaker 02: I certainly agree with your analysis and your conclusion about the overreach that was taken by the Veterans Court. [00:08:28] Speaker 04: by suggesting that further... Because then the Adams Court expressly said the remand was proper if it's based on the record as it now stands. [00:08:39] Speaker 04: That's a direct quote from Adams. [00:08:41] Speaker 04: Yes. [00:08:41] Speaker 04: So the Adams Court, which previously allowed a remand for more explanation of reasons and bases, it seems to me carved out the propriety of such a remand as being limited to reasons and bases and not introduction of new evidence. [00:08:57] Speaker 04: So I guess I'm a little concerned the Veterans Court went too far to the extent to open the door for the VA to start a whole new building of a case against your client, but I don't see any problem under Adams with a remand for more explanation. [00:09:10] Speaker 02: Well, and we are certainly concerned about that, Your Honor. [00:09:13] Speaker 02: However, our primary concern is the nature of the legal benefit that accrued to my client when he received the benefit of the presumption of soundness. [00:09:24] Speaker 02: That presumption [00:09:25] Speaker 02: at law needs to be taken away from him and the only way that that presumption can be taken away from him is if there is clear and unmistakable evidence and a conclusory statement even by a VA examiner that there was clear and unmistakable evidence does not meet that legal standard as a matter of law. [00:09:46] Speaker 04: That's a question of application of law to fact that I can't reach if the VA, if the Veterans Court said [00:09:54] Speaker 04: This statement is there. [00:09:56] Speaker 04: Maybe it is based on record evidence. [00:09:58] Speaker 04: It's not for me to sort through that record evidence and try to figure it out. [00:10:02] Speaker 04: That's something the board, the Veterans Court shouldn't even be doing that. [00:10:04] Speaker 04: The board is the institution that ought to be doing that in the first instance. [00:10:08] Speaker 02: Not in the context of the rebuttal of a presumption, Your Honor. [00:10:12] Speaker 02: The Veterans Court has held in the Miller case that a statement even by a medical professional that there is clear and unmistakable evidence is not enough [00:10:23] Speaker 02: to meet the legal standard that was imposed by Congress. [00:10:27] Speaker 02: The legal standard imposed by Congress is clear and unmistakable evidence, not an opinion or a conclusion of a medical professional that there is clear and unmistakable evidence, but a demonstration based upon factual medical evidence that is in the record that supports the conclusion that the condition was not aggravated beyond its normal progression. [00:10:53] Speaker 02: The issue that's being presented in this appeal is a question of whether or not the VA gets to have another opportunity to rebut the presumption. [00:11:05] Speaker 02: The Veterans Court order cuts off the Secretary's responsibility under law to rebut the second prong of the presumption by saying, I can't understand what you said in your decision. [00:11:21] Speaker 01: So maybe you did. [00:11:22] Speaker 02: Sorry? [00:11:22] Speaker 01: So maybe you did. [00:11:27] Speaker 01: Maybe you did rebut. [00:11:31] Speaker 01: I can't understand it. [00:11:32] Speaker 02: So maybe you did. [00:11:33] Speaker 02: Except that maybe you did is not sufficient to meet the requirements to rebut. [00:11:40] Speaker 02: In other words, the secretary gets one opportunity and one opportunity only to rebut. [00:11:46] Speaker 02: and it is binary they either did or they didn't and when the court reviews de novo whether the veterans court reviews de novo whether or not that legal standard of clear and unmistakable evidence was met that showing is either met or it's not met upon a de novo review and when the court short-circuited that de novo review process by saying I can't determine [00:12:12] Speaker 02: based upon a concession from the government that they couldn't determine is, as a matter of law, a failure to rebut. [00:12:23] Speaker 03: I think I understand your argument. [00:12:25] Speaker 03: What I'd like you to show me or tell me is I certainly appreciate the point that Judge Moore was making and is it your view that you preserved or made that argument on appeal? [00:12:40] Speaker 02: Well, I will confess, I did not intentionally make it. [00:12:45] Speaker 03: In other words, even if a remand were otherwise warranted here under Adams or whatever, at a minimum, the board should not, the CABC should not have allowed on remand for the potential. [00:13:02] Speaker 04: Я не знаю, я думал, господин карпинер, вы не сговорили, что это неправильное для них, чтобы открыть и купить второе блюдо на апельсине? [00:13:12] Speaker 04: Да, да, я сделал, господин, но... Я думал, что вы предпочитали, что они не могут купить второе блюдо на апельсине и представить новую evidenцию. [00:13:20] Speaker 04: И я это сделал, господин, но... И вы не изменили это как две отдельные аргументы, но... И я не изменил. [00:13:24] Speaker 02: Я не думал, что это было на своем. [00:13:25] Speaker 02: Я думал, что это было на своем. [00:13:26] Speaker 02: Но я пытался подчинить с судом, что это не была моя интенция, чтобы подчинить это. [00:13:30] Speaker 02: Моя интенция, как я просто разговаривал с директором Волок, [00:13:32] Speaker 02: was to make clear that the burden when shifted by statute is a burden that must be resolved and the failure to resolve it by a reasons or bases determination by the court and a concession by the government is a tacit admission that the burden was not met and if the burden was not met [00:13:56] Speaker 03: That argument I understand, whether I agree with it or not. [00:14:00] Speaker 03: I certainly understand your argument, so I don't mean to cut you off, but just going back to the issue we were discussing with Judge Moore about the ability of the board to develop the record further on remand. [00:14:14] Speaker 03: We had lots of veterans cases and we're always sending it back for more information. [00:14:21] Speaker 03: They violated the duty to assist, they should have done another medical exam, I mean constantly. [00:14:26] Speaker 03: So is there something about, is there a view, and I think the government kind of alludes to this, that when you go back for more information, you have to be looking for information that only helps the veterans, not for search for the truth. [00:14:42] Speaker 03: The government seems to allude to that, and I assume you would embrace that, so I would like you to tell me why that's so. [00:14:49] Speaker 03: Well, I do embrace that, Your Honor, but in the context... Like, if it went that... I mean, let me just make this argument deeper. [00:14:58] Speaker 03: It goes back to the board. [00:14:59] Speaker 03: We're trying to figure out whether your client merits this or not. [00:15:04] Speaker 03: And usually, as I said, in veterans cases, we're looking for more information, and that information is under the rubric of we're assisting the veteran to make his case. [00:15:13] Speaker 03: But in this instance, if it goes back to the board and the board says, I've got these two opinions, and this one is pretty conclusive, this one isn't, [00:15:22] Speaker 03: the right thing to do was to really hire an expert in this. [00:15:26] Speaker 03: So they can really give us, take these two opinions and tell us whether there isn't a strong basis or a presumed basis that this aggravation should count for the veteran. [00:15:41] Speaker 03: What's the problem with that? [00:15:42] Speaker 03: I guess I'm a little nervous about cutting off the ability on remands to allow the [00:15:49] Speaker 03: board and the VA to develop the record more, because that's what we do all the time to help veterans. [00:15:56] Speaker 02: And this appeal does not seek that limitation. [00:15:59] Speaker 02: This appeal seeks the limitation solely in the context of when a statutory presumption, in this case the presumption of soundness, has attached. [00:16:10] Speaker 02: And it is the development of evidence that is only negative to the veteran that would rebut that presumption. [00:16:18] Speaker 02: He got the presumption as soon as his medical physical failed to note that he had a pre-existing condition of migraine headaches, which at best circles back to when he was age seven. [00:16:33] Speaker 02: But in this case, Your Honor, the record before the board and the record before the Veterans Court was two previous medical doctors who stated that they could not resolve the question of aggravation [00:16:46] Speaker 04: without resorting to speculation which means the veteran should win because that's correct assumption as a matter of law so if two doctors say i can't conclude that service did not aggravate his migraine condition well first off there's no doubt his migraine condition worsened [00:17:04] Speaker 04: There is no doubt about that in the record. [00:17:06] Speaker 04: The question is, even the nurse Donley admitted that, she just said the normal progression of the disease may be to get worse over time and it might just be the normal progression of the disease and not the fact that he was subject to stress in the military during his service. [00:17:25] Speaker 04: I lost my train of thought, I didn't know where I was going. [00:17:28] Speaker 02: I had a question. [00:17:29] Speaker 04: I spent too long rambling, sorry. [00:17:32] Speaker 02: The opinion from the nurse practitioner Donnelly was simply speculative and as a speculative opinion as to what might be the natural progression is not, as the law requires, clear and unmistakable evidence. [00:17:46] Speaker 03: Well tell me, can we go back to first square? [00:17:50] Speaker 03: I understand the pre-existing and whether or not he had it beforehand. [00:17:54] Speaker 03: But if I'm in the service for two years and I have something that was wrong with me beforehand. [00:18:00] Speaker 01: Yes. [00:18:01] Speaker 03: What is the presumption? [00:18:03] Speaker 03: I mean, and then I'm in the service for two years and then 20 years later I come back and I make a claim and my condition has gotten really, really bad. [00:18:13] Speaker 03: So it's presumed that even though I had it before during the two years that I was in service, it's presumed that that made it worse. [00:18:26] Speaker 03: And what about, do you divide it by the intervening years? [00:18:29] Speaker 03: Let's assume the claim is filed 20 years later. [00:18:31] Speaker 03: Yes, I do, Your Honor. [00:18:34] Speaker 02: I believe that this is all explained in this court's decision in Wagner, in which Judge Dyke went back through the history, the legislative history of the presumption that took different forms up until the form at 311 and now 1111. [00:18:50] Speaker 02: And the conclusion in Wagner was is that the turning point or the triggering point for the establishment of the presumption [00:18:59] Speaker 02: is whether or not a condition is or is not noted on the entrance exam. [00:19:05] Speaker 02: That is on the government. [00:19:08] Speaker 02: If the government, even though you may have had a pre-existing condition, does not note that condition because you present without any appearance of having a pre-existing condition, fails to make the adequate inquiry and note that you have a pre-existing condition, then that failure [00:19:28] Speaker 02: affords the veteran the benefit of a presumption that when he or she entered service, they were of sound condition. [00:19:35] Speaker 03: I assume you know a hell of a lot more about this than I do. [00:19:39] Speaker 03: So do you, everything's done by forms, I mean I assume. [00:19:42] Speaker 03: Yes. [00:19:42] Speaker 03: Do you happen to know, I'm just curious, so that's not part of the record, if the form when you're enlisting or being, I mean, that medical form about pre-existing, if it asks about whether you've had headaches in the past or migraines in the past, and if it does, [00:19:58] Speaker 03: And the veteran does not check that box or says no. [00:20:05] Speaker 03: Does that still mean that it's the burden is on the government to establish that? [00:20:11] Speaker 03: I'm just wanting you to clarify. [00:20:13] Speaker 02: Yes, I believe it does in terms of the form itself. [00:20:17] Speaker 02: Obviously that form over time has changed composition, but I believe that this is a report in which the [00:20:27] Speaker 02: medical examiner is supposed to inquire of pre-existing conditions. [00:20:33] Speaker 04: Mr. Carpenter, I have another question. [00:20:35] Speaker 04: Chief Judge Prost asked a question posing as a hypothetical, suggesting that if 20 years later, you know, somebody expresses. [00:20:43] Speaker 04: But in this case, just to make sure I understand the facts, he served on active duty on multiple occasions through January of 2005, and he started seeking treatment prior to 2000, during 2008 for these migraines, [00:20:56] Speaker 04: and filed his claim in 2009. [00:20:58] Speaker 04: So we're talking about at most four years between the end of his service and his application for benefits, not even when he started seeking treatment, but his application for benefits in this case. [00:21:07] Speaker 04: And I guess part of what made me think about that was I could see and couldn't you, it being a factual question that we would have no authority over ultimately. [00:21:17] Speaker 04: But let me give you a for example. [00:21:19] Speaker 04: A veteran served in the military in the 1940s and in the year 2000, [00:21:24] Speaker 04: In the year 2000, he's developed hearing loss. [00:21:28] Speaker 04: Couldn't you imagine that the passage of time, a doctor could say, given the passage of time and the first symptoms, there's no evidence that this was aggravated during service. [00:21:40] Speaker 04: So I guess what I'm suggesting is, couldn't what Judge Prost is pointing out in a hypothetical, [00:21:47] Speaker 04: be factored in by the doctor to a conclusion he may or may not reach about the natural progression of the human body or a disease and into, therefore, his or her reasoned analysis about whether service could have aggravated a condition or whether the condition really and truly is the natural result of normal aging or something like that. [00:22:09] Speaker 04: Couldn't that be something that a doctor could factor in to his opinion? [00:22:13] Speaker 02: It certainly is. [00:22:14] Speaker 02: The legal question is whether or not [00:22:17] Speaker 02: That factor arises to the formidable level of that is undebatable. [00:22:24] Speaker 02: Right. [00:22:24] Speaker 04: Whether it's clear and... Clear and unmistakable. [00:22:27] Speaker 04: Right, right, right. [00:22:27] Speaker 02: That is the legal criteria. [00:22:28] Speaker 04: But it seems to me that there is a place for the analysis that Chief Judge Pross was suggesting. [00:22:34] Speaker 04: It's in the doctor and the medical analysis of whatever condition it is and the effect the passage of time would have and in fact the amount of the passage of time too. [00:22:44] Speaker 04: All of that seems factual to me. [00:22:46] Speaker 04: It seems like the doctor could take that into account and articulate it in the formation of their opinion. [00:22:51] Speaker 02: I don't think there's any question about that, Your Honor. [00:22:53] Speaker 02: However, it is the uniqueness of the context in which this veteran was in, in which the failure to note the migraines at entrance to service gave him the benefit of the presumption until the VA was able to take that presumption away by rebuttal [00:23:10] Speaker 04: Yes, but along the lines of what Chief Judge Pross is suggesting, I think if Nurse Donnelly wasn't a nurse, but an ear, nose and throat doctor, and this was hearing loss, and if the ear, nose and throat doctor said, ah, well, this person had such and such a condition, and hearing loss is expected to deteriorate by, you know, 5% annually, four years have passed, it actually only deteriorated by 3%, this person beat the odds, [00:23:39] Speaker 04: I think the doctor could thus conclude that there is no evidence to support the idea it was aggravated by service. [00:23:46] Speaker 04: If anything, they seem to have ended off better off than they should have under the natural progression of the disease, and therefore I conclude that this was not aggravated by service. [00:23:54] Speaker 04: I feel like that's all something that can happen regardless of whether it's noted on the form if you are accepting, which you did for purposes of this appeal, that the condition pre-existed service. [00:24:05] Speaker 04: You've accepted for purposes of this bill that the condition preexists in service. [00:24:09] Speaker 02: But Your Honor, I think your last qualification of accept that it wasn't noted is simply contrary to this court's case law in Wagner. [00:24:18] Speaker 02: It is Wagner that dictates the interpretation of how the presumption works. [00:24:24] Speaker 02: And the presumption works, it is automatic. [00:24:28] Speaker 02: It is conferred upon the vector. [00:24:29] Speaker 04: Yes, but a doctor could overcome it with clear and unmistakable evidence if he proves that the normal hearing loss per year is 5% and you've had less than that, therefore there's no doubt in his mind it is clear that this is the normal progression of your disease and not something that was aggravated. [00:24:45] Speaker 02: And you're absolutely right, Your Honor. [00:24:47] Speaker 02: And in the first instance, before the VA and before the Board, the Secretary has the right to make that case. [00:24:56] Speaker 03: Yeah, and they didn't hear it. [00:24:57] Speaker 02: And he didn't. [00:24:58] Speaker 03: Our fall, we've gone way beyond, will restore your rebuttal. [00:25:11] Speaker 00: Good morning, Your Honors, may it please the Court. [00:25:14] Speaker 00: I'd like to start by just discussing the record briefly because I think there were a few statements made in the colloquy with my colleague that distorted the record a little bit. [00:25:23] Speaker 00: The CAVC here did not... He did it, not us. [00:25:27] Speaker 04: Not passing blame on anybody. [00:25:29] Speaker 00: I'm all hypotheticals. [00:25:30] Speaker 00: So the court did not find that Nurse Donnelly's opinion was conclusory or inadequate to rely upon, to find that the aggravation part of 1111 had been rebutted. [00:25:40] Speaker 00: It simply agreed with the secretary that the board's failure to discuss Dr. Hughes' inability to offer an opinion was at least contradictory evidence that the board needed to address, acknowledge and explain [00:25:53] Speaker 00: how it reached its conclusion despite the existence of that inconclusive opinion. [00:25:57] Speaker 01: Is there a difference between inadequate reasoning and factual clarification? [00:26:02] Speaker 00: No, I think they're part and parcel of the same in this instance. [00:26:06] Speaker 00: I don't think that's necessarily true across the board. [00:26:09] Speaker 00: But in this instance, the failure to explain the apparent contradiction between the two opinions results from a failure apparently to acknowledge and weigh Dr. Hughes's [00:26:21] Speaker 00: Inability to opine against nurse Donnelly's opinion. [00:26:25] Speaker 04: To be clear, Dr. Hughes, she said, as I understand it, she's unable to say they weren't aggravated because this record doesn't contain sufficient medical evidence for which someone can make that conclusion. [00:26:39] Speaker 04: Right. [00:26:40] Speaker 04: So when you say unable to opine, I just want to make sure that you're not being a little bit misleading. [00:26:45] Speaker 04: with the evidence because she says she's unable to opine because this evidence this record would not allow a medical practitioner to opine. [00:26:53] Speaker 04: So I think the board it seems fair then doesn't it for the CDC to say okay well when a doctor says on the evidence medical evidence presented you can't reach this conclusion she can't reach this conclusion because she doesn't have enough evidence and then some nurse comes along later and says oh well I can reach the conclusion. [00:27:12] Speaker 04: I mean, it seems fair for the CAVC under those circumstances to send it back and say, you know, it'd be really nice if you reconciled that. [00:27:20] Speaker 01: I agree, Your Honor, the secretary... But do they get to flesh it out with facts? [00:27:25] Speaker 00: If necessary to understand, if the board determines that it can't understand the basis for either Dr. Hughes' opinion that the medical record that she reviewed was inadequate, or they can't understand Nurse Donnelly's views as to why the medical record presented to her was adequate, [00:27:41] Speaker 00: then I think the CAVC was suggesting that the duty to assist would require the board to seek additional evidence, seek clarification perhaps. [00:27:51] Speaker 04: But you're not assisting at that point because there's a presumption that he wins. [00:27:55] Speaker 04: If the record is in equipoise, as you just suggested, because you suggested if neither opinion conclusively carries water based on the state of the record, then he wins. [00:28:07] Speaker 04: So you're not assisting him by getting more evidence at that point. [00:28:11] Speaker 04: I don't see how you predicated on the duty to assist. [00:28:14] Speaker 00: Respectfully, I disagree that the evidence is in equipoise. [00:28:18] Speaker 00: The board has not found the evidence to be in equipoise and the Veterans Court did not say we're sending this back because the evidence sure looks like it's in equipoise. [00:28:26] Speaker 00: It simply said you haven't explained the reason why you're trusting Nurse Donnelly's opinion. [00:28:31] Speaker 03: I don't remember. [00:28:32] Speaker 03: Did the board applied [00:28:35] Speaker 03: at least purported to apply the correct standard, right? [00:28:38] Speaker 03: I don't think that's in the dispute. [00:28:39] Speaker 03: So the board, did the board actually conclude this is sufficient to establish clear and unmistakable or clear and convincing evidence that the presumption has been rebutted? [00:28:51] Speaker 00: Yes, Your Honor. [00:28:51] Speaker 00: It concluded that the progression of Mr. Worley's migraines was due to the natural progression based on Nurse Donnelly's opinion to that effect. [00:29:00] Speaker 03: And they didn't, but the, and the CABC said we can't accept that because you haven't [00:29:05] Speaker 03: told us why that stands alone. [00:29:09] Speaker 03: Right. [00:29:10] Speaker 00: At appendix seven and eight, the Veterans Court explains that it agrees simply with the secretary's concession that the board's failure to address Dr. Hughes' opinion and reconcile the two renders the decision inadequate under 7105. [00:29:23] Speaker 01: I understand why they would want an analysis of the two opinions. [00:29:31] Speaker 01: But what I don't get is how [00:29:35] Speaker 01: seeking new evidence outside of those opinions, assist the veteran. [00:29:42] Speaker 00: Well, I think we're speculating about what the board could do under the statute of regulation when it reviews the evidence. [00:29:50] Speaker 00: If the board failed to recognize Dr. Hughes's... You're speculating. [00:29:54] Speaker 01: We're deciding. [00:29:55] Speaker 00: Well, the Veterans Court's opinion, I think, recognizes that quite frequently the reason why things are remanded is because [00:30:04] Speaker 00: there needs to be additional evidence. [00:30:08] Speaker 00: But they didn't say that. [00:30:09] Speaker 00: Well, I think what they said is not tied to a statute of regulation. [00:30:14] Speaker 00: I think it was somewhat just reflective of the fact that remands almost always include the possibility that the evidence would prove inadequate. [00:30:21] Speaker 04: But here's my problem with this argument. [00:30:23] Speaker 04: This argument would then allow the secretary or the government to appear in front of us in every case or to go to the CAVC on every case to say, [00:30:32] Speaker 04: We think the board had adequate evidence to reach its conclusions. [00:30:35] Speaker 04: And if you disagree, remand so we can put more in. [00:30:39] Speaker 04: That's what you're asking for. [00:30:40] Speaker 04: That is the rule that you're asking for. [00:30:42] Speaker 04: If you don't agree, we made our case. [00:30:44] Speaker 04: We had the burden of proof and we had a high presumption we had to meet to satisfy it. [00:30:48] Speaker 04: And if you don't think we satisfied it based on the record, remand to give us another chance to do so. [00:30:52] Speaker 00: Respectfully, I disagree, Your Honor. [00:30:54] Speaker 00: The VA is not going... Wait, how is that not the result? [00:30:58] Speaker 00: The VA doesn't seek evidence to adverse to veterans. [00:31:03] Speaker 00: It seeks the evidence necessary to decide claims. [00:31:07] Speaker 00: And simply, the Veterans Court's statement here, that additional evidence may be necessary if the record is inadequate for the board to provide an explanation for its determination. [00:31:19] Speaker 03: But if the record is Adam's, how does that square with Adam's? [00:31:21] Speaker 03: Listen, Adam's, as your friend suggested, exactly say the same thing. [00:31:25] Speaker 03: We have jurisdiction. [00:31:27] Speaker 03: And it's because we don't have that they allow for new evidence. [00:31:33] Speaker 03: Wasn't that Adam's case? [00:31:36] Speaker 00: No, Your Honor, I don't think so. [00:31:37] Speaker 00: I think Adam's has certainly been interpreted post-Adam's as providing this court jurisdiction to review the remand order because the Veterans Court had said it didn't have authority to remand in that circumstance. [00:31:49] Speaker 00: And that's also how the court in Ebel distinguished Stevens and Deloach [00:31:54] Speaker 03: But isn't the statement that Mr. Carpenter or Judge Moore, somebody made this statement about Adams which held, deprived the Mr. Adams of his claimed right to a decision in his favor on the record as it now stands. [00:32:09] Speaker 00: I think the problem is with that articulation of the Williams test in these circumstances is that as the court was worried in Ebel, that sort of articulation would swallow the narrow rule, narrow exception to finality. [00:32:24] Speaker 00: Mr. Worley contends that there was a legal determination here that the VA gets to another shot to rebut the presumption. [00:32:33] Speaker 00: But the Veterans Court never says that. [00:32:35] Speaker 00: It never interprets 1111. [00:32:37] Speaker 00: It simply applies 7104D and said there was inadequate reasons and bases. [00:32:42] Speaker 00: And so I think the problem is if a veteran can show up with a remand order and articulate some way in which his rights have been affected, [00:32:54] Speaker 00: because he has a right to judgment on the record as it exists, then he would always get this court's review. [00:33:01] Speaker 00: The problem here is that Mr. Worley is not entitled to judgment on the record as it exists now. [00:33:08] Speaker 00: The board found that the aggravation problem had been rebutted. [00:33:11] Speaker 00: The Veterans Court did not disagree with that. [00:33:13] Speaker 00: It simply said, we as a reviewing court cannot review your determination. [00:33:17] Speaker 00: We need you to explain it to us better so that we can review it. [00:33:21] Speaker 00: So he would be asking... So they're asking for an explanation. [00:33:26] Speaker 01: That's fine. [00:33:27] Speaker 01: Yes. [00:33:28] Speaker 01: Does that mean that the explanation is, well, we went out and got new experts and here's what we decided? [00:33:34] Speaker 00: Well, I think the explanation would need to start with, okay, we're going to explain our view of Dr. Hughes' opinion because that's the opinion that they overlooked. [00:33:43] Speaker 00: If for some reason that they couldn't understand Dr. Hughes' opinion or something in Dr. Hughes' opinion [00:33:49] Speaker 00: made them unable to understand Nurse Donnelly's opinion. [00:33:52] Speaker 00: It is possible that to get to the right answer, they would need to go back to one of the two of them, or ask another medical examiner a specific question to develop the evidence necessary to reach the correct result. [00:34:04] Speaker 01: So they look at the record as it stands, and they say, gee, Dr. Hughes's opinion rebuts Nurse Donnelly's opinion, and as a consequence, [00:34:20] Speaker 01: We just can't decide. [00:34:22] Speaker 00: I think that would be incorrect, Your Honor. [00:34:23] Speaker 00: If, in fact, Dr. Hughes' opinion rebuts Nurse Donnelly's, then the presumption applies, and Mr. Worley will get his service connection. [00:34:30] Speaker 03: It wouldn't be... So what are the circumstances in which they'd have to embellish the record? [00:34:36] Speaker 00: If they can't understand something that Nurse Donnelly or Dr. Hughes says in their opinion, or if something in the contradiction between the two [00:34:44] Speaker 00: It requires a medical explanation. [00:34:46] Speaker 03: I mean, again, I'm speculating here. [00:34:48] Speaker 03: They said may result in a determination that a new medical opinion is warranted. [00:34:52] Speaker 03: Does that sound like we might have to get an interpreter here to review the record here as kind of an expert to help us interpret this? [00:35:00] Speaker 00: Well, I would suggest that if the board on remand said, well, the secretary hasn't rebutted on this record, so we're going to go get another opinion that maybe would rebut it. [00:35:10] Speaker 00: Mr. Worley would have a good claim on appeal to the Veterans Court that what the board did... That's what they said. [00:35:17] Speaker 03: The court concludes that the board should make a determination in the first instance and notes that such deliberation may result in a determination that a new medical opinion is warranted. [00:35:30] Speaker 00: But it doesn't explain for what that new medical opinion would be. [00:35:33] Speaker 00: If there is something that they simply cannot reconcile between the two medically, they can't understand something about the progression [00:35:40] Speaker 00: Or they find that neither of the two docked. [00:35:42] Speaker 00: Something in one of the two. [00:35:43] Speaker 03: Well, they obviously can't reconcile them. [00:35:44] Speaker 03: They say different things. [00:35:46] Speaker 03: So there's no way to wreck what. [00:35:47] Speaker 00: It is possible. [00:35:48] Speaker 00: I mean, so Nurse Donnelly's opinion was based on a different record than Dr. Hughes' opinion. [00:35:52] Speaker 00: And again, we're speculating as to how the board could reconcile the two. [00:35:56] Speaker 00: The fact is, it did not do so, and that's the reason for the remand. [00:36:02] Speaker 00: So, I mean, I think the problem. [00:36:06] Speaker 03: The government sought a joint remand here. [00:36:09] Speaker 00: We agreed to the remittance. [00:36:13] Speaker 00: Why? [00:36:13] Speaker 00: So where you have a presumption, the way that the secretary explained it in the secretary's brief below, and I would just point the court to Appendix 128, because I think the secretary explained it better than I would if I didn't quote him, was, an opinion that the medical record is insufficient to opine on aggravation is effectively an opinion that a gap in the evidence exists. [00:36:35] Speaker 00: And that's exactly the kind of gap that a presumption fills. [00:36:38] Speaker 00: Dr. Hughes' opinion would appear to be evidence that supports Mr. Worley's claim, but the board didn't address it. [00:36:46] Speaker 00: The board didn't explain why it disagreed with that premise, and it needs to do so. [00:36:52] Speaker 00: And it may be that it can't. [00:36:53] Speaker 00: And if it can't, then Mr. Worley will get his benefits. [00:36:56] Speaker 00: But the board, in the first instance, has to find facts with respect to Dr. Hughes' opinion and reconcile that with... And is one of those facts potentially a gap exists? [00:37:06] Speaker 00: Yes, Your Honor. [00:37:07] Speaker 03: If the two opinions... Anything in the secretary's submission suggests that you should go out and get a new medical opinion on remand? [00:37:22] Speaker 03: Or the possibility that that would be? [00:37:26] Speaker 00: I'm not sure if the secretary suggested that they would do so. [00:37:32] Speaker 00: I think they certainly... I think the secretary disagreed with [00:37:37] Speaker 00: the notion that certainly we did in our brief that the secretary would go out with a sort of bias view towards developing whatever evidence necessary to rebut this presumption the secretary doesn't develop evidence in order to deny claims. [00:37:53] Speaker 00: But I don't think that there I would have to go back and look at the secretary's brief again to know if there's a suggestion that based on the duty to assist or some other regulation the development of necessary evidence would be a possibility. [00:38:07] Speaker 03: Now at some point, somebody suggested statutes or regulations that say this. [00:38:12] Speaker 03: Maybe you started off by alluding to that. [00:38:14] Speaker 03: Is there some regulatory or statutory basis for the board, for the CABC to have said, if we're going to remand it to the board, we can't rely on the, we have to give them the leeway explicitly to get more evidence? [00:38:30] Speaker 00: No, I mean they don't, they don't cite, the Veterans Court doesn't cite one. [00:38:33] Speaker 00: I think it emanates from the duty to assist. [00:38:35] Speaker 00: and the fact that remands often are helping the veteran make up for a shortfall in the evidence, or there's some unexplained, especially where there's a 7104D problem, there's something unexplained. [00:38:48] Speaker 03: Yeah, but this case is a little different than that. [00:38:50] Speaker 00: That's true. [00:38:50] Speaker 00: I mean, I think the rebutting the presumption is slightly different than other remands, but I think that it's difficult to cut off the VA's ability to develop evidence that's necessary simply because we're [00:39:05] Speaker 00: dealing with a rebuttal of a presumption. [00:39:08] Speaker 00: If the board can't understand something, and this court says, well, you cannot ask for additional evidence, then the board is left with the inability to answer questions it may need to answer to get to the... The board didn't say it couldn't. [00:39:21] Speaker 04: The board said that Ms. [00:39:24] Speaker 04: Dunley's testimony conclusively, clearly, and whatever established this. [00:39:29] Speaker 04: So the board did have an opinion that the standard had been met here, [00:39:34] Speaker 04: It's just the CAVC said, you never addressed Dr. Hughes' testimony and the secretary agreed and it's directly contradictory to Ms. [00:39:43] Speaker 04: Donnelly and you have to take that head on as part of your analysis. [00:39:48] Speaker 04: So I guess that seems to me a very different case than if the board had said, we can't make a decision based on the evidence of record. [00:39:57] Speaker 04: Here the board said it could. [00:39:58] Speaker 04: I see no error in the CAVC saying, well then explain it. [00:40:02] Speaker 04: And then the board has to explain it. [00:40:03] Speaker 04: What I do see you have a problem with, though, is the board saying, ah, yes, we see the problem. [00:40:07] Speaker 04: You're right. [00:40:07] Speaker 04: We shouldn't have made that conclusion based on the record as it stood at that time. [00:40:12] Speaker 04: So now let me get new evidence. [00:40:15] Speaker 00: I agree. [00:40:15] Speaker 00: I agree that that would be a certain, a good claim that Mr. Oley could bring if the board were to do that. [00:40:20] Speaker 04: I mean, as we're standing here, hasn't the CAVC invited? [00:40:25] Speaker 00: I don't think so. [00:40:26] Speaker 00: I think the CAVC was not specific enough in its statement. [00:40:29] Speaker 03: How could it be more specific? [00:40:31] Speaker 03: If you're asking, you're telling to the BVA. [00:40:35] Speaker 03: What you're saying, it wasn't specific enough as if they were saying to the BVA, if you want to, you can go out and get another medical opinion. [00:40:44] Speaker 03: That's exactly what they said. [00:40:45] Speaker 00: If it said you could permit the secretary to develop additional evidence to rebut the presumption, that would be improper. [00:40:52] Speaker 00: But the necessity for an additional medical examination may arise. [00:40:56] Speaker 00: Why don't we just quote you? [00:40:59] Speaker 03: Can I ask you, the government has, I don't think the government has made this argument, but maybe in fairness to you it's because this issue wasn't teased out, but is the government, is it your view that this still doesn't give us jurisdiction on finality? [00:41:17] Speaker 03: Because even if that's our view, nothing's happened yet, so that he would be able, I mean the final factor in Williams is whether or not this is gonna moot out [00:41:29] Speaker 03: And it may moot out if he wins, but I don't think he'd complain about that. [00:41:33] Speaker 03: So if he loses and the board, it's all speculative. [00:41:38] Speaker 03: If the board goes for another opinion and if he loses based on that opinion and he comes up here, is there any doubt that he will have preserved his ability to challenge the use of that? [00:41:51] Speaker 00: No doubt at all, Your Honor. [00:41:52] Speaker 00: The court in Joyce said even where the Veterans Court makes an error of law that will govern the remand, [00:41:58] Speaker 00: that can be challenged in the appeal of the subsequent decision. [00:42:02] Speaker 00: So if the court were to believe that the Veterans Court's statement here was a misinterpretation of some statute of regulation... But why shouldn't we decide? [00:42:11] Speaker 03: Why shouldn't we make life easier? [00:42:13] Speaker 03: Why should we put everybody through the additional time it would take to do that if we have a firm view that a new medical opinion would not be... [00:42:24] Speaker 00: I think it would be for the same prudential reasons that the court doesn't usually review remand decisions. [00:42:31] Speaker 00: It encourages the judicial economy to let the process play out and have everything finally decided. [00:42:37] Speaker 00: Also, as our conversation today shows, there is some speculation in what the board could do. [00:42:43] Speaker 00: We're sort of assuming the board could take this statement and run with it in an improper manner. [00:42:49] Speaker 04: Do you have Williams with you? [00:42:50] Speaker 00: I do, Your Honor. [00:42:50] Speaker 04: Good. [00:42:50] Speaker 04: Pull it out for me. [00:42:52] Speaker 00: I have it. [00:42:53] Speaker 04: The place, it's under Keynote 4, where the test is laid out, 1A, 1B, C. You don't see where I'm talking about? [00:43:02] Speaker 04: It's near the end of the opinion. [00:43:03] Speaker 00: Yeah, I have it here. [00:43:04] Speaker 00: I don't have the keynotes. [00:43:05] Speaker 04: And you see how number three is there must be a substantial risk the decision would not survive remand, or the remand proceeding might move the issue. [00:43:13] Speaker 04: You see that? [00:43:14] Speaker 04: Yes. [00:43:15] Speaker 04: And you see there's a footnote there. [00:43:16] Speaker 04: Now let's go to the footnote. [00:43:17] Speaker 04: Footnote cites Adams as one of the examples of what would be [00:43:23] Speaker 04: problematic. [00:43:25] Speaker 04: And it says the remand order in this case is appealable only because the remand deprives Mr. Adams of his claim right to decision in his favor on the record as it now stands. [00:43:35] Speaker 04: So doesn't it seem like Williams and the third factor in Williams on it could still be appealed later that Williams itself expressly anticipated [00:43:51] Speaker 04: that if somebody couldn't have a decision on the record as it stands now, that would undermine the third prong quite substantially? [00:44:02] Speaker 00: Well, no, I mean, so Mr. Worley would need to be able to contend that he is entitled to judgment on the record as it now stands right now. [00:44:13] Speaker 00: But the Veterans Court disagreed with that. [00:44:15] Speaker 00: And for good reason. [00:44:16] Speaker 00: 7261 says the Veterans Court can't find facts in the first instance. [00:44:20] Speaker 00: And so to reconcile the two opinions on aggravation, the Veterans Court would have had to weigh the evidence to come to a determination that the aggravation prong of 1111 had not been rebutted. [00:44:31] Speaker 00: And that sort of fact finding was not at issue in Adams. [00:44:36] Speaker 00: And so there is no viable claim to benefits on the record as it exists now. [00:44:42] Speaker 00: The Veterans Court said, we can't do our clear error analysis because you haven't done the necessary fact finding. [00:44:48] Speaker 00: And so the Veterans Court couldn't find those facts in the first instance, and this Court also cannot find those facts in the first instance. [00:44:54] Speaker 00: So simply articulating, claiming, I'm entitled to benefits. [00:44:58] Speaker 04: I'm sorry, I certainly wasn't meaning to suggest by this that we would be deciding those facts in the same entrance, or the Veterans Court could. [00:45:05] Speaker 04: I was going to your jurisdictional argument and trying to explain to you that Williams itself in the very footnote attached to the third prong about [00:45:14] Speaker 04: Well, only if there's a substantial risk the issue won't be appealed, carves out Adams and this whole record question as expressly one of the things that would warrant going ahead and exercising jurisdiction. [00:45:28] Speaker 04: And so I kind of, I was meaning only to address your question about whether this should be sent back via Williams and we should wait till a later appeal to address the new evidence issue. [00:45:39] Speaker 00: I understand. [00:45:39] Speaker 00: I think as a prudential matter, the way in which Mr. Worley has articulated [00:45:44] Speaker 00: his right to have his remand reviewed takes Adams too far. [00:45:49] Speaker 00: Because the court simply saying I have a right to judgment on the record as it exists now, if that's sufficient to get through the finality exception, simply saying it, then I think the exception will swallow the rule, which is what this court was worried about, the footnote one in Adams, the footnote one in Deloach. [00:46:11] Speaker 00: It needs to be an unusual circumstance where the court will review a remand, because simply saying, I'm entitled to judgment on the record as it stands now, even though the Veterans Court couldn't review that same record, provides far too open a gateway for this court to review. [00:46:29] Speaker 04: I'm not suggesting there's a problem with remand. [00:46:32] Speaker 04: I'm suggesting that the order, that perhaps we should exercise jurisdiction to modify the order. [00:46:38] Speaker 04: If it is clear to this panel, [00:46:40] Speaker 04: That introducing a new expert to meet the standard of clear and unmistakable, or whatever the standard is, would be necessary for the board to reach that conclusion. [00:46:52] Speaker 04: And if the Veterans Court has expressly invited them to do so, it seems prudential considerations, which you just mentioned, would dictate that we say it's not okay to do so, so that Mr. Worley doesn't have to then have that subsequent appeal. [00:47:05] Speaker 04: I mean, this is a veteran seeking a limited amount of benefits. [00:47:09] Speaker 04: For us to not exercise jurisdiction, therefore sending it back with something if we believe it's actually clearly wrong and suggesting that the board do something that we think would be legally inaccurate later on, it seems like we should exercise jurisdiction to correct that remand order. [00:47:28] Speaker 00: Well, Your Honor, I think the key in this parenthetical about the Adams case is that he's not saying he has a right to a decision on the record. [00:47:37] Speaker 00: He's saying he has a right to a decision in his favor. [00:47:40] Speaker 00: And I think that's a key distinction. [00:47:42] Speaker 00: It's important. [00:47:43] Speaker 00: Because simply saying, I have a right to a record, a decision on the record as it exists, without additional evidence, is I think what your honor is suggesting Adams stands for. [00:47:53] Speaker 00: But in Adams he was saying, I have a right for this court to reverse because I should win. [00:47:58] Speaker 00: And that is reviewable in a remand order. [00:48:01] Speaker 00: And I think to fit into that Adams exception, the court has to go too far with respect to finding facts. [00:48:07] Speaker 00: is not simply claiming that Adams wasn't saying, if you claim a right to a decision on the record without augmentation, that's reviewable. [00:48:14] Speaker 00: So I think that's the distinction I would draw between Adams and the situation here. [00:48:21] Speaker 00: Thank you, Your Honor. [00:48:28] Speaker 02: Mr. Worley appealed to the Veterans Court to answer one question and one question only. [00:48:34] Speaker 02: Did the board correctly apply the presumption of soundness? [00:48:38] Speaker 02: And the answer is no, they did not because the presumption of soundness required that the evidence be clear and unmistakable to rebut the second prong. [00:48:50] Speaker 02: When the court evaded that issue and not unreasonably concluded based upon the board's, excuse me, the VA's concession that the board had not provided an adequate statement of reasons or basis, [00:49:05] Speaker 02: that there was not clear and unmistakable evidence in this record sufficient to rebut the presumption. [00:49:12] Speaker 02: Therefore, Mr. Who acknowledged that? [00:49:14] Speaker 04: Who said there's not clear and unmistakable evidence in this record? [00:49:19] Speaker 01: They said there might be. [00:49:20] Speaker 01: We don't know. [00:49:24] Speaker 02: Which they, Your Honors? [00:49:26] Speaker 02: The Board did not say that. [00:49:28] Speaker 02: The Board definitively said there was. [00:49:30] Speaker 01: The Veterans Court said, hey, on the one hand, [00:49:34] Speaker 01: You have this nurse practitioner and that might be clear and unmistakable evidence. [00:49:42] Speaker 01: But you didn't talk about this doctor. [00:49:46] Speaker 02: No, Your Honor, I don't think that's correct. [00:49:49] Speaker 02: I don't think they said that might be clear and unmistakable evidence. [00:49:52] Speaker 01: No, that's implied. [00:49:52] Speaker 02: They said that it was not adequately explained how that could possibly be clear and unmistakable evidence in light of the existing record from Dr. Hughes [00:50:03] Speaker 02: that said just the opposite based on who said they were talking about now you saying that the c a b c the veterans court yes okay yes and and that the veterans court made the assumption that the it was not necessary to reach the ultimate question as to whether or not the board did or did not correctly apply based upon a concession of error that the board had inadequately explained [00:50:31] Speaker 03: I mean, the case law, if somebody cited it in their brief, you can still find that there's no presumption even if there's some contradiction or inconsistency as long as you explain it. [00:50:45] Speaker 03: There's no absolute foreclosure because there were two different opinions, right? [00:50:52] Speaker 02: That would be correct, Your Honor. [00:50:54] Speaker 03: However, on this... Just requiring that they explain the inconsistency, [00:51:00] Speaker 03: or the tension between the two. [00:51:03] Speaker 03: What does that automatically mean? [00:51:04] Speaker 02: Because Judge Hughes' opinion, sorry, Dr. Hughes' opinion said that it was not possible based upon the evidence in this record. [00:51:21] Speaker 02: He offered that opinion. [00:51:24] Speaker 02: Now we have a nurse practitioner making a contradictory opinion. [00:51:29] Speaker 02: That is not [00:51:30] Speaker 02: clear and unmistakable evidence in the record to rebut the presumption. [00:51:36] Speaker 02: You have essentially two conflicting opinions amongst the VA's own experts. [00:51:41] Speaker 02: And if the VA's experts disagree, then you clearly cannot, as the secretary, find as a matter of law that the evidence of record was clear and unmistakable that the condition was not aggravated during service. [00:51:58] Speaker 02: And that was their legal burden [00:52:00] Speaker 02: That was their evidentiary burden. [00:52:04] Speaker 04: Maybe she had a medical file that contained more information than Dr. Hughes. [00:52:11] Speaker 04: I don't know any of that. [00:52:13] Speaker 04: That's why they say that when they send it back, they say this contradiction has to be addressed. [00:52:18] Speaker 04: The board does not have the opportunity to properly assess the relative probative value of each opinion with respect to the aggravation prompt. [00:52:25] Speaker 04: If that was on a question that was of a finding of fact, not a question of law, [00:52:43] Speaker 02: Whether or not there is clear and unmistakable evidence to rebut the presumption is a question of law. [00:52:49] Speaker 02: You either meet that evidentiary burden or you do not. [00:52:52] Speaker 02: If you do not meet it because there is conflicting evidence in the record. [00:52:56] Speaker 04: The board didn't say you don't meet it because there's conflicting evidence. [00:52:59] Speaker 04: They said go back in what great way the probative value. [00:53:02] Speaker 04: Suppose that the backgrounds of the parties have been flipped. [00:53:06] Speaker 04: Suppose that the evidence in favor of the veteran was [00:53:10] Speaker 04: not even a nurse practitioner, but like a medical assistant or something. [00:53:14] Speaker 04: And then suppose it was a doctor on the other side. [00:53:16] Speaker 04: You've got to weigh the probative value of all of these things. [00:53:19] Speaker 04: They might be contradictory, but maybe one, you can legitimately make a fact-finding one way or the other. [00:53:25] Speaker 04: I don't think it's for this court to figure any of that out. [00:53:28] Speaker 02: Respectfully, honor, I disagree because this is raised in the context of when Congress consciously, knowingly shifted the evidentiary burden from the veteran [00:53:39] Speaker 02: to the secretary. [00:53:41] Speaker 02: And when the secretary had its burden and didn't make its burden, the veteran was entitled to have the presumption stand. [00:53:51] Speaker 01: Thank you very much, Your Honor. [00:53:53] Speaker 02: Have we aggravated your headache, Mr. Governor? [00:53:55] Speaker 02: It hasn't arisen quite the level of migraine. [00:53:57] Speaker ?: Thank you. [00:53:57] Speaker 01: That concludes our proceeding.