[00:00:01] Speaker 06: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 06: God save the United States and this honorable court. [00:00:11] Speaker 02: Our only case for argument today is 2019-1519 Simmons v. Wilkie. [00:00:18] Speaker 02: Mr. Carpenter, please proceed. [00:00:21] Speaker 00: Thank you, Your Honor. [00:00:21] Speaker 00: This is Kenneth Carpenter appearing on behalf of Mr. Richard Simmons. [00:00:25] Speaker 00: The issue presented by Mr. Simmons' appeal is whether or not the failure to afford veterans [00:00:30] Speaker 00: the benefit of statutory presumptions in the adjudication of their claims is prejudicial per se. [00:00:37] Speaker 00: The use of applicable presumptions in the adjudication of a veteran's claim is essential to the fundamental fairness of that adjudication. [00:00:46] Speaker 00: When it's here, the VA failed to afford Mr. Simmons the benefit of either the presumption of soundness or the presumption of service connection. [00:00:55] Speaker 00: The burden of proof remained with Mr. Simmons during that adjudication [00:01:00] Speaker 00: when the VA ultimately denied his claims in 1974. [00:01:06] Speaker 00: Had the VA afforded Mr. Simmons the benefit of these presumptions, the VA and not Mr. Simmons would have had the burden of proof unless those presumptions had been rebutted by the VA. [00:01:21] Speaker 00: Thus, the failure to afford statutory presumptions is prejudicial as a matter of law because such errors affect the essential fairness [00:01:30] Speaker 00: of the VA's 1974 adjudication in this case. [00:01:35] Speaker 00: The manifestly changed outcome was the entitlement of Mr. Simmons to have the adjudication of his claims with the benefit of both of the statutory presumptions which were denied. [00:01:50] Speaker 00: When a statutory presumption is not afforded a veteran in an adjudication, the essential fairness of the VA's adjudication [00:02:00] Speaker 00: must be considered indisputable. [00:02:03] Speaker 00: This is true because of the nature of the non-adversarial adjudication scheme that was created by Congress. [00:02:11] Speaker 00: Statutory presumptions relieve veterans from having to produce specific evidence to establish a specific point at issue, in this case, the elements of a claim for service connection. [00:02:26] Speaker 00: Because the VA failed to afford them, [00:02:29] Speaker 00: Mr. Simmons in 1974 had an erroneous adjudication of his claims that required him and not the VA to meet the burden of proof. [00:02:41] Speaker 00: Therefore, the failure to afford Mr. Simmons the benefit of those statutory presumptions must be prejudicial as a matter of law. [00:02:51] Speaker 00: Here the Veterans Court found clear error in the board's analysis of both statutory presumptions at appendix [00:02:58] Speaker 00: pages seven and eight. [00:03:01] Speaker 00: The Veterans Court further found that the board failed to address the manifestly different component at appendix 11. [00:03:10] Speaker 00: The Veterans Court made a clear error when it undertook to take due account of the rule of prejudicial error by performing its analysis of the manifestly different outcome on behalf of the board [00:03:27] Speaker 00: which the court had found. [00:03:30] Speaker 02: Mr. Carpenter, this is Judge Moore. [00:03:33] Speaker 02: Are you suggesting that there is no harmless error analysis that the Court of Veterans' Appeals is capable of performing? [00:03:43] Speaker 00: No, Your Honor, I am not. [00:03:46] Speaker 00: I am suggesting that in this particular case, when the error was found for the failure to afford the benefit of two statutory presumptions, [00:03:58] Speaker 00: that analysis was made with that finding. [00:04:05] Speaker 00: In other words, that the inherent error, or excuse me, the inherent prejudice that derives from being deprived of those statutory presumptions subsumes, if you will, the prejudicial error analysis [00:04:24] Speaker 02: and the need to take any further... Mr. Carpenter, this is Judge Moore again. [00:04:29] Speaker 02: The problem I'm having with your argument is that there are three separate prongs that the veteran is required to prove, and that the error the board committed in not applying the presumptions goes to the second of the three prongs, but as the government has very effectively argued, the third prong, which requires a showing [00:04:54] Speaker 02: of nexus between the present disability and the in-service injury hasn't been established and is unaffected by the failure to have granted the presumptions. [00:05:05] Speaker 02: And so in a case such as this, where you have three independent issues that must be proven, a failure by the board below to afford a presumption which might establish one of them, [00:05:19] Speaker 02: doesn't help if there are separate findings that the others are likewise not established? [00:05:26] Speaker 00: Well, Your Honor, I think theoretically that is an accurate statement. [00:05:31] Speaker 00: I think in the practical or the essential fairness of an adjudication when the Congress has decided that certain facts or elements will be presumed to be true unless rebutted [00:05:49] Speaker 00: that it is incumbent upon the VA to afford those for those elements and then make their adjudication as to the final element. [00:06:00] Speaker 00: The final element was in fact contestable on the basis of the report from Dr. Palmer which spoke directly to the relationship between both the veteran's arthritis and the veteran's depression. [00:06:18] Speaker 04: Yes, Your Honor. [00:06:19] Speaker 04: This is Judge Clevinger. [00:06:21] Speaker 04: Yes, but you forfeited that argument. [00:06:24] Speaker 04: You don't raise the argument in your brief at all that the third element was shown in this case. [00:06:32] Speaker 00: No, Your Honor. [00:06:32] Speaker 04: It's too late for you to raise that now. [00:06:38] Speaker 00: And I was not intending to raise it. [00:06:40] Speaker 00: I was simply intending to respond to Judge Moore's question about the absence [00:06:47] Speaker 04: My understanding of your conundrum, Mr. Carpenter, is that you are of the view that the essential fairness issue that's involved in denying the veteran the benefit of the two presumptions is severe. [00:07:02] Speaker 04: And that once you've decided that those presumptions were not afforded, the court has been able to apply harmless air to that decision. [00:07:12] Speaker 04: But in every case, the answer is that the air is harmful. [00:07:16] Speaker 04: not that it's harmless. [00:07:19] Speaker 04: So you are arguing for the application of harmless air, but because you say, as a matter of law, in every case involving the breach of the presumptions, there is always harmful air. [00:07:34] Speaker 04: And your argument is, once harmful air is established, the veteran wins its case, notwithstanding the absence of proof on the third element. [00:07:45] Speaker 04: Do I correctly have your argument in hand? [00:07:47] Speaker 04: Am I here? [00:07:56] Speaker 04: Hello? [00:07:57] Speaker 06: Yes, you're here. [00:07:59] Speaker 02: I can hear you, Judge Clevinger. [00:08:01] Speaker 06: Did Mr. Carpenter hear me? [00:08:04] Speaker 06: It says he's on the call. [00:08:05] Speaker 06: One second. [00:08:06] Speaker 06: I'm going to pause the recording. [00:08:14] Speaker 06: Okay, you can continue. [00:08:17] Speaker 00: Judge Clevenger, I was indicating that I heard your entire description and I agree that that correctly states, accurately states, Mr. Simmons' position in this appeal. [00:08:30] Speaker 05: Thank you, Mr. Carpenter. [00:08:34] Speaker 05: You may wish to proceed with your argument. [00:08:37] Speaker 05: I'm finished with that question. [00:08:40] Speaker 00: I'm not sure unless there are further questions that I have anything further that I think would be helpful to the panel at this point. [00:08:47] Speaker 00: I believe that the summary of Mr. Simmons' position was accurately characterized by Judge Clevenger and unless there's further clarification required from the panel, I'll reserve the balance of my time for rebuttal. [00:09:05] Speaker 01: Thank you. [00:09:06] Speaker 01: Hi, this is Judge Chen. [00:09:08] Speaker 01: Mr. Carpenter, could you speak to a couple opinions? [00:09:13] Speaker 01: Yes. [00:09:13] Speaker 01: One is Holton versus Shinseki, where this court, I believe, could view that the presumptions you're discussing here, the presumptions of an in-service injury and presumptions of soundness, ultimately are not relevant to the third prong that Judge Moore was referring to before, which is [00:09:38] Speaker 01: the veteran's requirement to prove some kind of causal nexus between the current disability and the in-service injury. [00:09:48] Speaker 01: And in that instance, you know, the court and Holton, we said that the combination of these two statutory presumptions isn't enough to compensate for Mr. Holton's failure [00:10:02] Speaker 01: to establish that third prong of a causal nexus between the current injury and the in-service injury. [00:10:11] Speaker 01: And then my second question is the Supreme Court's opinion in Sanders, I'd like you to respond to the other side and the Veterans Court's reading of that opinion as, [00:10:24] Speaker 01: saying there really aren't any bright line rules when it comes to prejudicial error. [00:10:29] Speaker 01: And you do have to evaluate all the facts and circumstances in a very case specific way. [00:10:33] Speaker 01: And so I don't see anything in Sanders that helps you. [00:10:40] Speaker 01: So if you could speak to what we've already said in Holton, which seems pretty close to the facts of your case, and then comment on Sanders, which in my reading, [00:10:53] Speaker 01: seems to box all of us in and militates against these sort of bright line rules you're urging in this case with respect to these two statutory presumptions that, as Judge Moore earlier said, really apply in the context of prong two of your in-service connection claim. [00:11:14] Speaker 01: OK, thank you. [00:11:15] Speaker 00: Yes, Your Honor. [00:11:16] Speaker 00: First, as regards the Holden case, I was counsel in Holden [00:11:20] Speaker 00: And the issue in Holton had to do with whether or not there was a misinterpretation of those statutory presumptions to the extent that they included the issue of nexus as part of that statutory presumption. [00:11:37] Speaker 00: In that case, there was not a finding, as there was in this case, that there was a failure by the VA in the first instance [00:11:48] Speaker 00: to have afforded those presumptions. [00:11:51] Speaker 00: So the question in Holton was being addressed in terms of the interpretation of the scope of the presumption. [00:12:03] Speaker 00: In this case, I believe it is distinguishable because in this case, we have a finding by the Veterans Court that both the board in the first instance [00:12:14] Speaker 00: and the original adjudication in 1974 had failed to properly consider and apply both of those presumptions. [00:12:27] Speaker 00: That error is, in my view, an error that is essential to the adjudication of the claim because, as I described earlier, the advantages that are afforded by a presumption [00:12:44] Speaker 00: specifically in reference to shifting the burden. [00:12:49] Speaker 00: In the Holton case, this court was asked to address the scope of the presumption. [00:12:55] Speaker 00: In this case, the court is being asked to address the question of whether or not a failure, a specific finding of a failure to afford those presumptions [00:13:13] Speaker 00: should be treated as a error that is prejudicial as a matter of law. [00:13:20] Speaker 00: Moving then to the question in Sanders, I believe the question in Sanders was presented in the context of what the Supreme Court referred to as a framework for deciding the question of prejudicial error and did, I agree, decide that it should be made on a case-by-case basis. [00:13:42] Speaker 00: I am suggesting [00:13:43] Speaker 00: that one of those case-by-case bases should be a rule that addresses what happens when, as in this case, there is a finding by the reviewing court that there was an error made in the failure to afford the benefit of two different statutory presumptions, and that in that limited case, [00:14:12] Speaker 00: that the prejudice should be deemed to be inherent with the failure found. [00:14:23] Speaker 04: Mr. Carpenter, it's Judge Clevinger. [00:14:27] Speaker 04: Can you hear me? [00:14:28] Speaker 00: Yes, Your Honor, I can. [00:14:29] Speaker 04: Yeah. [00:14:30] Speaker 04: With respect to your response to Judge Chan on his standards question, my question to you is whether you now, at oral argument, are forfeiting argument you made in your brief [00:14:42] Speaker 04: that Sanders is limited to cases involving notice errors? [00:14:48] Speaker 00: No, I am not, Your Honor. [00:14:49] Speaker 00: I'm sorry. [00:14:50] Speaker 00: I omitted that from my response to Judge Chen. [00:14:54] Speaker 00: I apologize. [00:14:55] Speaker 00: I do believe that the holding in Sanders was only about the question of notice errors, and the error in this case is about the failure to afford presumptions. [00:15:08] Speaker 00: Now, I certainly see that the government has a legitimate position that Saunders can be read broadly to include the treatment of all questions of prejudicial error. [00:15:21] Speaker 00: However, it seems to me that Saunders can also be read to concede that the question of prejudicial error needs to be addressed on a case-by-case basis. [00:15:35] Speaker 00: And I'm suggesting that this is a special category, if you will, of cases in which this court should adopt the rule that is being proffered by Mr. Simmons. [00:15:53] Speaker 02: Okay. [00:15:53] Speaker 02: Mr. Carpenter, since we're into your rebuttal time, why don't we move on to Ms. [00:15:57] Speaker 02: Akers? [00:15:58] Speaker 00: Thank you, Your Honor. [00:16:01] Speaker 03: May it please the court? [00:16:03] Speaker 03: This is Ms. [00:16:04] Speaker 03: Akers on behalf of the Department of Justice. [00:16:06] Speaker 03: The court should affirm the Veterans Court's holding that the board's failure to apply to presumptions was a harmless error. [00:16:14] Speaker 03: Mr. Simmons' proposed rule of creating a rigid mandatory presumption of error is precisely the type of rule that the Supreme Court and standards held is contrary to the Veterans Court Section 7261 Harmless Error Analysis. [00:16:31] Speaker 03: Mr. Simmons' proposed rule does not consider whether the error had an effect on the outcome of his case, as is required under a harmless error analysis, nor does his rule take into account the specific facts or the circumstances of his case. [00:16:49] Speaker 03: And in Sanders, the Supreme Court warned against applying this rigid mandatory type of rule that doesn't take into account the specific facts of the case. [00:17:01] Speaker 03: As we explained in our brief, not only is Mr. Simmons' proposed rule the type of rigid mandatory rule that the Supreme Court has already rejected in Sanders, but the proposed rule would result in futile remand because it would require the Veterans Court to remand a case where it finds any error, whether or not that error affected the outcome, and when there's no reason to believe that the result on remand would be any different. [00:17:30] Speaker 03: Now, Mr. Simmons argued today and in his brief that the error deprived him of the meaningful opportunity to participate in his, in the processing of his claim. [00:17:46] Speaker 03: But as the Veterans Court explained, beyond making that sort of conclusory statement, Mr. Simmons never explained how he lacked an opportunity to participate. [00:17:58] Speaker 03: And as the Veterans Court explained, Mr. Simmons was represented. [00:18:02] Speaker 03: He had the opportunity to advance arguments and the board specifically addressed all of his contention. [00:18:10] Speaker 03: And so in sum, we believe that the Supreme Court's holding in Sanders governs this case and unless the court has questions that we ask that the court affirm the Veterans Court. [00:18:28] Speaker 02: Okay, Mr. Carpenter, you have some rebuttal time. [00:18:32] Speaker 00: Thank you, Your Honor. [00:18:33] Speaker 00: May I please the Court? [00:18:34] Speaker 00: It seems to me that the rigidity that is being attributed to the rule proposed by Mr. Simmons is a function of the rigidity of the statutory presumption. [00:18:45] Speaker 00: Specifically, I would suggest that the rigidity is that the application of a statutory presumption is a binary error. [00:18:55] Speaker 00: It either [00:18:56] Speaker 00: was afforded, and therefore there was no error, or it was not afforded, and therefore there was an error. [00:19:05] Speaker 00: Since there was a finding by the Veterans Court that there was an error, I submit to this Court that the... Mr. Carpenter says Clem, there isn't every error binary. [00:19:17] Speaker 04: It either happened or it didn't? [00:19:20] Speaker 00: Not... Yes, Your Honor, that is correct. [00:19:23] Speaker 04: However, I would... Your Honor, is this a special binary error? [00:19:28] Speaker 00: I am, Your Honor. [00:19:30] Speaker 00: I am suggesting that it is a special binary error because it is a thumb on the scale in favor of the veteran that is provided by Congress to be afforded in every adjudication in which those presumptions are applicable. [00:19:50] Speaker 00: Both of those presumptions were applicable in this case, [00:19:53] Speaker 00: and were not afforded. [00:19:55] Speaker 00: It seems to me that the intent of Congress in creating a non-adversarial system must insist upon the Secretary applying the presumptions that are directed by the Congress to be afforded and that when the [00:20:17] Speaker 00: VA and its adjudication process does not afford them, that that has to be viewed as an adverse prejudicial effect to the essential fairness of the adjudicatory process, specifically because the nature of presumptions is the shifting of the burden of proof. [00:20:46] Speaker 00: Unless there's further questions from the panel, I'm happy to submit the matter at this time. [00:20:53] Speaker 02: Okay. [00:20:53] Speaker 02: We thank both counsel for their argument and this concludes our hearing for today. [00:20:59] Speaker 00: Thank you. [00:21:00] Speaker 06: The honorable court is adjourned until tomorrow morning at 10 a.m.