[00:00:01] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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We will hear argument first in number 19-2448, Beck against Wilkie.

[00:00:19] Speaker 03:
Mr. Carpenter, please begin when you're ready.

[00:00:22] Speaker 02:
Thank you very much, Your Honor.

[00:00:23] Speaker 02:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Corey Beck.

[00:00:28] Speaker 02:
The statutory presumption in this case found at 38 USC section 1112A1 is a burden shifting presumption once triggered.

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It is undebatable in this case that the presumption was triggered.

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Once the presumption was triggered, the burden shifted to the secretary to rebut the presumption in accordance with the provisions of 38 USC 1113.

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Because the presumption

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was triggered and was not rebutted, Mr. Beck was entitled as a matter of law to an award of service connection for his post-service disability from schizophrenia.

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Section 1112.

[00:01:09] Speaker 01:
Mr. Carpenter, Mr. Carpenter, this is Judge Hughes.

[00:01:11] Speaker 01:
I just want to stop you and hit on what I think is my key problem with your argument.

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You say that it is undisputed that the presumption was triggered.

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Why is that true?

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It is true, Your Honor, because all that is required is that there be a chronic disease as listed in the statute and regulation that is identified in the record.

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The fact that there are other diagnoses in the record is not relevant to whether or not this statute was operational based upon the undisputed facts

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of Mr. Beck's hospitalization immediately following service for a period of more than 21 days for a pilot.

[00:02:03] Speaker 01:
Let me just interrupt you on that.

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This is a presumption of service connection, right?

[00:02:11] Speaker 01:
It's not a presumption of disability manifestation or whatever you want to call it.

[00:02:19] Speaker 02:
Oh, I'm sorry, Your Honor.

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If that is the qualification you're putting on it, I disagree.

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I believe it is a presumption of service connection because of the uniqueness of this statute.

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This statute applies.

[00:02:33] Speaker 01:
Sure, sure.

[00:02:34] Speaker 01:
No, no, no, no.

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I get you.

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But I guess my question is the presumption here is not that the disease exists.

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It's that the disease is connected to service, right?

[00:02:47] Speaker 02:
No, Your Honor, that is presumed.

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This is the problem that I have with your argument, because this is a presumption.

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This is the plain language of the statute, right?

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A says, for the purposes of section 1110.

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And then it goes through, and we're talking about, I guess, well, one of those.

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Are we talking about A1?

[00:03:09] Speaker 02:
Yes, Your Honor.

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We're talking about A1.

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And then at the end, it said, it should be considered to have been incurred or aggravated by service.

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So it's a presumption of one of those diseases or conditions being connected to service.

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It doesn't say that the disease itself is presumed to exist just by the mere existence of the medical record.

[00:03:28] Speaker 02:
I respectfully disagree, Your Honor.

[00:03:31] Speaker 01:
Well, then where in the plain language of that statute does it say that just mere submission of a single evidentiary piece of evidence that the disease is presumed to have occurred?

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Isn't that a condition predicate for the presumption applying?

[00:03:46] Speaker 02:
No, Your Honor, because in this case, it only pertains to diseases which are present to a degree of 10% disability post-service.

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In this case, as opposed to... Sure, but don't you have to prove that before you get the presumption under the service connection?

[00:04:10] Speaker 02:
Yes, Your Honor, and the undisputed facts in this case prove that.

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He was hospitalized for a psychosis.

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The board found that the undisputed facts did not prove that.

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The board found that the facts were in dispute and found against your client.

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That may have been wrong, but that's a factual question that was for the board to decide, isn't it?

[00:04:33] Speaker 02:
No, Your Honor, it was not.

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It was a legal question based upon whether or not there was evidence of a chronic disease, in this case, a psychosis,

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and a psychosis that had manifested to a degree of 10% disability following service.

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By the nature of his hospitalization for more than 21 days, under VA regulations, a condition is considered totally disabling, obviously more than 10%, for that period of hospitalization.

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As a consequence, we have met all of the factual predicates to trigger this presumption.

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And this presumption, different from the 105A presumption of service connection for a disease or injury present in service, this is a disease or injury that is present post-service and has manifested a disability to a degree of more than 10%.

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OK, Mr. Carpenter, let me try one more time and let me see if I've got your argument.

[00:05:44] Speaker 01:
I think I do.

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Your position is that if the veteran submits evidence of a chronic disease becoming manifest to 10%, that this regulation then flips the burden to the VA to disprove that underlying condition.

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That's a presumption of disability once evidence is submitted.

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That is correct, Your Honor.

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Other than the fact that this is a statute,

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and not a regulation.

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There is a regulation that implements the statute, but this is a statute created by Congress that uniquely provides for presumptive service connection for a disability which manifests itself as a result of a chronic disease at a rating of 10% or more post-service.

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And your view is that the presumption is not just for service connection, but a presumption that the disease occurred if

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any kind of like prima facie evidence is presented?

[00:06:42] Speaker 02:
Yes, Your Honor, because of the very wording of the statute.

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If we disagree with your reading of the statute and find that this is simply a presumption of service connection statute and that in order to gain the presumption, you still have to prove the predicate underlying fact of the chronic disease,

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then where are we in this case?

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Because the board looked at the evidence and found that the evidence didn't support a finding of a chronic disease.

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Is that not unrevealable now in a Q case?

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I don't believe so, your honor, because even if the court were to make that determination, the Veterans Court in this case did not address that issue.

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The Veterans Court presumed

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that my interpretation was correct and said, even if it was correct, that this would have been a harmless error.

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Therefore, remand is required by this court if the court adopts that interpretation to send it back to the Veterans Court to make that determination in the first instance based upon whether or not there is an adequate statement of reasons or bases by the board

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to support that determination.

[00:08:02] Speaker 04:
Mr. Carpenter, your reference to the harmless error determination by the appellate court raises the question in my mind as to whether, given the case law in our court saying that harmless error determinations are not reviewable by this court under 7292, whether this is a case

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in which there is no jurisdiction in our court because of the way that the Veterans Court decided the case, that is to say, on the basis of a harmless error ruling.

[00:08:36] Speaker 02:
Well, Your Honor, the problem with that with the decision made below is that the decision made below was predicated upon a, I guess, judicial concession that even assuming that the interpretation

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or the allegation of vermin of error by Mr. Beck in his briefing was correct that that would have been a harmless error.

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The problem is that there was no analysis by the Veterans Court as to why that should be presumed.

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The question that I have is since the jurisdictional provision

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requires an issue of law on which the Court of Appeals for Veterans Claims based its decision.

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Here, the Court of Appeals for Veterans Claims appears to have based its decision on the determination of harmless error without reaching the question of law that we've been discussing, the scope of Section 1112.

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Isn't that right?

[00:09:51] Speaker 02:
Well, no, I don't think it's right because the court expressly said that they were assuming that the decision or the vermin of error was correct.

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Which is another way of saying, is it not another way of saying that we don't have to decide whether it's correct or not?

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We will assume that it's correct and then we will rule

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on a different ground to it.

[00:10:21] Speaker 02:
And that is correct, Your Honor, and that's why the challenge here is whether or not the Veterans Court relied upon a misinterpretation.

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An interpretation that requires the finding, the predicate for the cue, and I realize I'm going over my time, is that there would not have been a artificially different outcome.

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there would have been a manifestly different outcome under the correct interpretation.

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Therefore, a question of law is being presented in this case, which is critical for this court to address because as Judge Hughes indicated, if my interpretation is correct, then as a matter of law, Mr. Beck was entitled and the original adjudication to an award of service-connected compensation

[00:11:16] Speaker 02:
without having to demonstrate anything more than there was medical evidence of a identified chronic disease that had manifested to a degree of 10% or more.

[00:11:28] Speaker 03:
Mr. Carpenter, this is Judge Toronto.

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Do you dispute that even if your view of 11-12 is right that 11-13 allows a rebuttal to

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the premise that you say triggers 11-12?

[00:11:47] Speaker 02:
To the extent that you are suggesting that 11-13 applies, I agree.

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There is nothing in this record either in the original adjudication or in the review of the request for revision by Mr. Beck

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in the board's decision denying that revision in which there was any suggestion that the presumption had been rebutted.

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Therefore, the presumption stands because there is no proffer by the government that they rebutted the presumption based upon the criteria set out in 1113.

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And the criteria set out in 1113

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specifically make reference to the evidence necessary to make that rebuttal.

[00:12:48] Speaker 02:
And I'm sorry, I misplaced my note on what that criteria is, but there's very specific criteria in that.

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I'll cover that on my rebuttal one.

[00:13:00] Speaker 03:
Okay.

[00:13:02] Speaker 03:
You'll have your rebuttal time.

[00:13:03] Speaker 03:
I think we'll hear from Ms.

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Rose now.

[00:13:05] Speaker 03:
Thank you.

[00:13:09] Speaker 00:
Good morning, your honor.

[00:13:10] Speaker 00:
May I please the court?

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The 1989 board reviewed the evidence that was in the record according to its authority to discount the weight and probability, excuse me, probity of evidence in light of its own inherent characteristics and its relationship to the other items of evidence.

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And here what the board determined was that although there was an initial stay at a private facility that indicated a diagnosis of schizophrenia,

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When Mr. Beck was transferred to the same day as a discharge from that hospital to a VA hospital, the diagnosis was not substantiated.

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Following his hospital stay at the VA facility, he was readmitted to the original private facility within, I think, within, I think within less than two weeks.

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And again, there was no,

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confirmation of the initial diagnosis of schizophrenia.

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Instead, at the second stage, he was found to have personality disturbance that was, I think, labeled as antisocial disorder and drug addiction.

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Because this is Q, the mixed evidence here means that we cannot review whether or not the board erred in determining that

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that the complete evidence of record do not show a manifestation of schizophrenia within a year following discharge.

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And secondarily, the Veterans Court correctly held that it must take account of the rule of prejudicial error if it were to have found that a, that the presumption should have applied.

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and there was no argument made that the, or showing me that the mixed evidence in the records would be legally insufficient.

[00:15:11] Speaker 04:
Ms.

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Rose, this is Judge Bryson.

[00:15:14] Speaker 04:
Let me ask you the same question that I asked Mr. Carpenter.

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Given that the Veterans Court did not decide the question of the scope of Section 1112, but instead said, even assuming

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that the appellant's position on that was correct.

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There was still no error because there was harmless error.

[00:15:38] Speaker 04:
It was harmless.

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Why is there jurisdiction in our court to decide that, given the cases in which we have held that determinations of harmless error by the Veterans Court are not reviewable under 7292?

[00:15:58] Speaker 00:
I think Your Honor, and I recognize that we didn't make this argument.

[00:16:01] Speaker 00:
I know, and I was starting to be curious about that.

[00:16:03] Speaker 00:
I can only describe that as an oversight, but the way that the Veterans Court structured its decision, I agree with Your Honor that there would not be jurisdiction.

[00:16:19] Speaker 04:
Well, I'm just asking.

[00:16:21] Speaker 00:
I'm not sure that I've come to a conclusion.

[00:16:25] Speaker 00:
Potentially, the appellant can try to make some sort of argument about what the scope of review of prejudicial error look like, whether it's a rebuttable presumption,

[00:16:42] Speaker 00:
that could be reviewable like this court looked at in the Simmons decision earlier this year.

[00:16:51] Speaker 03:
But I think there is... This is just Toronto.

[00:16:54] Speaker 03:
I guess, I think I was hearing Mr. Carpenter suggest that in this case, the harmless error analysis of the Veterans Court was itself infected by a legal error.

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and that the merits of that contention, that the harmless error analysis rested on a legal error, required consideration of just how, I'm gonna call it, minimal the showing is that's needed to trigger 1112.

[00:17:27] Speaker 03:
Because I think, Mr. Carpenter said, on his view, there could not possibly be harmless error since the evidence for

[00:17:38] Speaker 03:
required to trigger 11, 12, couldn't possibly have been rebutted?

[00:17:44] Speaker 00:
Well, I actually think that Mr. Cumminder is arguing something slightly different.

[00:17:48] Speaker 00:
He's not making an argument about whether or not the mixed evidence in the record could be about the presumption.

[00:17:53] Speaker 00:
Instead, he's invoking a hyper-technical argument that's in the vein of head by wind tells you lose, which is unless the board specifically states that the presumption has been applied,

[00:18:07] Speaker 00:
the board cannot find that the evidence of the board, the evidence before the board cannot rebut the presumption.

[00:18:16] Speaker 00:
It's an argument that unless a presumption is first applied, it cannot be rebutted, which isn't correct.

[00:18:24] Speaker 00:
Here, the homicide determination would need to be based on all of the evidence in the record.

[00:18:32] Speaker 01:
This is Judge Hughes.

[00:18:36] Speaker 01:
Can I ask?

[00:18:37] Speaker 01:
Just assuming for hypothetical purposes, we agree with Mr. Carpenter that there's sufficient evidence in the record to invoke the presumption.

[00:18:47] Speaker 01:
You still get a rebunded under 1113, right?

[00:18:51] Speaker 01:
Correct.

[00:18:53] Speaker 01:
I've read 1113.

[00:18:54] Speaker 01:
I have it before me.

[00:18:55] Speaker 01:
It's a little unclear.

[00:18:58] Speaker 01:
What standard of proof does the VA have to meet to rebut that presumption?

[00:19:04] Speaker 01:
Is it simply a preponderance or is it a heightened standard like you often have for budding presumptions?

[00:19:12] Speaker 00:
This is not a presumption where there is a heightened standard of rebuttal and it's addressed in the regulation at 3.307.

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The expression affirmative evidence to the contrary will not be taken to require a conclusive showing but such a showing as would in sound medical reasoning and in the consideration of all

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evidence of record to support a conclusion that the disease was not included in service.

[00:19:40] Speaker 04:
So you essentially have a prima facie showing, one that would support a judgment in your favor.

[00:19:48] Speaker 00:
I apologize, Your Honor.

[00:19:49] Speaker 00:
I didn't hear the first part of your question.

[00:19:52] Speaker 04:
I'm sorry.

[00:19:54] Speaker 04:
The standard, as I understand it, coming from the regulation is that there has to be what would amount to a prima facie showing enough

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evidence that if un-rebutted would support the agency's position in order to rebut the presumption.

[00:20:13] Speaker 04:
That's what I think I understood you just saying.

[00:20:16] Speaker 00:
I want to make sure that, is your question addressed to what evidence is required to invoke the rebuttal?

[00:20:26] Speaker 04:
The rebuttal, yes.

[00:20:29] Speaker 04:
to satisfy the requirement of Section 1113 regarding rebuttal evidence, as described in Section 307?

[00:20:40] Speaker 00:
It would need to be evidence that would be sufficient to support a conclusion that the disease is not incurred in service.

[00:20:53] Speaker 00:
So if the presumption is triggered and there's

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There's no evidence for the conqueror to include that with the situation.

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There's no rebuttal.

[00:21:03] Speaker 00:
The degree of evidence that would need to be, I mean, the exact degree, it needs to at least lead to the conclusion and medical reasoning and consideration of all evidence to record that the disease is not included in service.

[00:21:21] Speaker 01:
And your view is that, no, go ahead Judge Sharma.

[00:21:24] Speaker 03:
No, no, no, no, go ahead please.

[00:21:27] Speaker 01:
I was just going to,

[00:21:28] Speaker 01:
your view is that there's sufficient evidence in the record to support a finding that the presumption would have been reported as the Veterans Court found, and that particularly on a Q challenge, that that's, you know, not something either the Veterans Court or we could get into.

[00:21:43] Speaker 00:
Yes.

[00:21:45] Speaker 00:
The board's decision, which is this discussion I think is at page 30 of the record, it weighs all of the evidence in the record relating

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to Mr. Beck's hospitalizations that happened close in time after his discharge.

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And it determined that, on the whole, that evidence did not indicate that he had manifested schizophrenia within a year after discharge.

[00:22:12] Speaker 00:
So although the board did that weighing as an initial matter to determine whether or not the presumption was triggered, I think that its analysis is equally relevant to whether or not the error was

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undebatable in a harmless error analysis.

[00:22:32] Speaker 00:
As you've mentioned, because it's this queue, there's no undebatable error here.

[00:22:36] Speaker 03:
This is Jess Toronto.

[00:22:37] Speaker 03:
Can I just return to this jurisdiction question just to make sure I understand your position?

[00:22:45] Speaker 03:
Is it now your position that we do not have jurisdiction to reach the 11-12 interpretation question?

[00:22:54] Speaker 00:
To reach the 11-12 interpretation question, that is fair.

[00:22:58] Speaker 00:
I do agree that the challenge to the harmless error analysis was framed as a legal question.

[00:23:08] Speaker 04:
I'm sorry.

[00:23:08] Speaker 04:
You said the challenge to the harmless error was, what did you say?

[00:23:11] Speaker 04:
I missed it.

[00:23:12] Speaker 00:
I believe it was framed as a legal question as to what evidence or how the

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presumption once triggered should be reviewed as whether or not it was compatible in the two contracts.

[00:23:35] Speaker 03:
So that would give us jurisdiction to address 1112 even if it was somehow through the back door of an alleged incorrect legal premise underlying the arm of error analysis.

[00:23:52] Speaker 00:
Yes, Your Honor, I apologize.

[00:23:54] Speaker 00:
I've been thinking through this jurisdictional question as we've been thinking.

[00:24:00] Speaker 00:
And I do believe that Mr. Beck in his opening brief raised a legal question that would allow the court to analyze these issues.

[00:24:11] Speaker 00:
And because the court affirms judgments and not decisions, and if it wanted to do so on the basis of the interpretation of 1112, I believe it could do so.

[00:24:23] Speaker 01:
What, I'm sorry, I'm a little confused now.

[00:24:25] Speaker 01:
What's the legal question apart from this underlying statutory interpretation question about harmless error that you think we have jurisdiction to review beyond the, because it seemed to me that the Veterans Court said whatever the interpretation, there's, you know, enough evidence here to rebut this and so it would be harmless under the Q standard.

[00:24:45] Speaker 01:
What legal issue of harmless error do we have?

[00:24:51] Speaker 00:
I don't want to misstate Mr. Beck's argument.

[00:24:56] Speaker 01:
Well, I understand, but... In the opening brief... I'm sorry, Your Honor.

[00:25:02] Speaker 01:
I just want to understand the government's position because it seems like a case, and I was a little surprised when I read the brief, that the government would have come in and argued... The court doesn't have jurisdiction because this is based upon a harmless error analysis that is entirely fact-based.

[00:25:17] Speaker 01:
And, you know, it's undisputed.

[00:25:20] Speaker 01:
jurisdiction over the factual harmless error analysis.

[00:25:24] Speaker 01:
So what legal content is there to the harmless error ruling apart from the statutory interpretation question?

[00:25:30] Speaker 01:
Or do you think those two are the same thing here somehow?

[00:25:34] Speaker 00:
No, I believe that Mr. Beck was making an argument, and we disagree with this, that if the original board does not invoke the presumption,

[00:25:49] Speaker 00:
the this is basically an automatically a prejudicial error because the presumption cannot be rebutted if it's not first invoked.

[00:26:04] Speaker 00:
And I don't we don't agree with that.

[00:26:07] Speaker 00:
And I think we've addressed that in our brief.

[00:26:09] Speaker 01:
But that's not but that's not what the Veterans Court decided.

[00:26:13] Speaker 01:
And that's not how it ruled on harmless air.

[00:26:16] Speaker 01:
Is it?

[00:26:19] Speaker 00:
That is not what the Veterans Court decided.

[00:26:22] Speaker 00:
Mr. Beck, I believe, is contending that that should be the case.

[00:26:27] Speaker 01:
That was a legal error.

[00:26:29] Speaker 00:
Okay.

[00:26:36] Speaker 03:
Do you have anything else, Ms.

[00:26:37] Speaker 00:
Rose?

[00:26:38] Speaker 00:
No, Your Honor.

[00:26:39] Speaker 00:
I don't know if the Court has no further questions as we rest on the arguments made today in our press release.

[00:26:45] Speaker 03:
Thank you.

[00:26:46] Speaker 03:
Mr. Carpenter, I think you have five minutes.

[00:26:50] Speaker 02:
Thank you very much, Your Honor.

[00:26:52] Speaker 02:
I'd like to begin with the language of 1113, and I agree with Judge Hughes' observation that it is very difficult to suss out from the language used by Congress what the legal standard is to rebut the presumption.

[00:27:09] Speaker 03:
I'm sorry, but this is Judge Reddick, but the regulation provides at least different words

[00:27:15] Speaker 03:
Seemingly familiar words.

[00:27:17] Speaker 02:
Just about to go there, Your Honor.

[00:27:21] Speaker 02:
Number one, the government did not assert the language in the regulation in its briefing, so they are raising an argument that was not raised in their briefing.

[00:27:30] Speaker 02:
But more importantly, the reliance upon the regulation, even if permissible, is not supportive of the government's position for two reasons.

[00:27:44] Speaker 02:
The first is that the language used in the regulation specifically refers to the question of whether something was incurred in service.

[00:27:54] Speaker 02:
The question under 1112A1 is whether or not something occurred within a post-service presumptive period.

[00:28:03] Speaker 02:
It is not whether something took place during service.

[00:28:09] Speaker 02:
And therefore, any language in the regulation

[00:28:13] Speaker 02:
would not have application to this particular statute.

[00:28:18] Speaker 02:
More importantly, on the question of what the legal standard is and whether it is as low as the secretary has written in his regulation, that cannot be supported because this regulation applies to all presumptions, or at least that is the implication

[00:28:41] Speaker 02:
of the title of the statute at 1113.

[00:28:48] Speaker 02:
And more importantly, in the context of the presumption of aggravation under 38 USC 1153, the VA has interpreted that statute by regulation to have the higher burden of clear and unmistakable evidence to rebut that presumption.

[00:29:11] Speaker 03:
Mr. Carmen, can you shed some further light on this jurisdictional question that we've been discussing?

[00:29:22] Speaker 03:
And in particular, why this isn't a case in which the Veterans Court decision relies entirely on a fact-based harmless error analysis without any kind of

[00:29:40] Speaker 03:
legal error in the picture?

[00:29:42] Speaker 02:
Well, I do not believe that the Veterans Court made any factual determination whatsoever in its harmless error analysis.

[00:29:54] Speaker 02:
It simply made reference to the Q standard for manifestly different outcome without any further statement.

[00:30:04] Speaker 02:
And to read into that, that there was some factual determination made by the Veterans Court is simply over generous.

[00:30:15] Speaker 02:
What the Veterans Court in fact said was, is that assuming that the interpretation proffered by Mr. Beck and the environment of error in the board's decision was correct, the error was harmless.

[00:30:33] Speaker 02:
That's the end of the discussion.

[00:30:37] Speaker 02:
There was no factual predicate upon which that was based.

[00:30:42] Speaker 02:
At best, it was a reference to the Q standard without any further elaboration.

[00:30:51] Speaker 02:
And as was suggested earlier in the colloquy with the government, Mr. Beck's position is that the harmless error analysis was tainted

[00:31:02] Speaker 02:
by the reliance upon a misinterpretation of the plain language of 1112, which does not carry with it any language that would suggest that there is the level of ability to contest a diagnosis of record

[00:31:32] Speaker 02:
of a chronic disease and then the question becomes was that chronic disease manifest at a degree of 10% or more and by his period of hospitalization for more than 21 days with a diagnosis of schizophrenia that meets the predicate requirement to trigger the statute.

[00:31:59] Speaker 02:
I see that I'm out of time.

[00:32:00] Speaker 02:
I will refrain from any further comment.

[00:32:04] Speaker 03:
Thank you, Mr. Carver.

[00:32:04] Speaker 02:
Unless there's questions.

[00:32:06] Speaker 03:
Sorry.

[00:32:07] Speaker 03:
Any questions, hearing none, the case will be submitted and thanks to both counsels.

[00:32:15] Speaker 02:
Thank you, Your Honors.