[00:00:00] Speaker 00: Next case for argument is 20-2067, Lynch versus McDonough. [00:00:05] Speaker 00: Mr. Lippman, you may begin now. [00:00:07] Speaker 00: Thank you. [00:00:09] Speaker 05: Thank you, Your Honor. [00:00:10] Speaker 05: Mark Lippman here on behalf of the appellant, Joe Lynch. [00:00:15] Speaker 05: We've argued that the opinion in Ortiz versus Principi is fundamentally flawed and should be overturned by the circuits and bank courts. [00:00:27] Speaker 05: Ortiz failed to give effect to the operative phrase, approximate balance, overlook the relevant legislative and regulatory histories of former section 3007B, now 5107B, and section 3102 of the regulations. [00:00:48] Speaker 00: And furthermore... Let me interrupt you just because time is short. [00:00:52] Speaker 00: This is Judge Prost. [00:00:54] Speaker 00: It would really help... [00:00:56] Speaker 00: I know this is predominantly all the focus is on the language and the statute and the reg and how it's been interpreted by various judicial opinions. [00:01:05] Speaker 00: But what would help me understand what's going on here is what are you saying about this case, for example? [00:01:12] Speaker 00: I mean, this person, I think I got my facts right, two private physicians, two VA physicians who critiqued the private physicians and their conclusions not being supported by the facts they included. [00:01:24] Speaker 00: Court of Claims looked at that. [00:01:26] Speaker 00: You challenged the weight, the way the BVA decided to weigh it. [00:01:32] Speaker 00: And then you also made an argument about how it's luck of the draw and do you think this could have come out differently if you had another [00:01:40] Speaker 00: person at the board. [00:01:41] Speaker 00: So what would happen in this case? [00:01:44] Speaker 00: What would you apply in this case? [00:01:46] Speaker 00: I assume you're seeking a favorable outcome. [00:01:50] Speaker 00: What would you say to get over what the fact finding was at the board here? [00:01:57] Speaker 05: Okay, just one thing clear. [00:01:59] Speaker 05: I did not represent the veteran at the Veterans Court level. [00:02:03] Speaker 05: He argued pro se. [00:02:05] Speaker 05: some of the arguments I would have. [00:02:07] Speaker 00: All right. [00:02:07] Speaker 00: Well, OK. [00:02:08] Speaker 00: But the facts are the facts, or at least the board's fact finding is the board's fact finding. [00:02:13] Speaker 00: So what would you say under the, OK. [00:02:16] Speaker 00: I'm sorry. [00:02:16] Speaker 00: You tell me. [00:02:17] Speaker 05: Yeah, sure. [00:02:19] Speaker 05: I would say that the Veterans Court misinterpreted and misapplied 5107B and 3.102. [00:02:31] Speaker 05: And as far as saying, [00:02:34] Speaker 05: harmless error, I'm not sure if that's where you're going. [00:02:36] Speaker 00: No, it's not where I'm going. [00:02:38] Speaker 00: I'm like, you think that the board, if your view of the statute is correct, an alternative to Ortiz, how would that be applied in this circumstance? [00:02:50] Speaker 00: Do you think under the facts here, your client should necessarily get what he was seeking, which is an increased, you know, PTSD benefit? [00:03:00] Speaker 00: I mean, you've got two examiners on one side, two physicians, two on the other, and the two VA physicians, or at least one of them, critiqued and said, here's why you shouldn't rely on the other stuff. [00:03:15] Speaker 00: Under your view of how Ortiz should have come out, what would the rule be that you're applying to this case, and how would it be applied? [00:03:26] Speaker 05: Okay, the rule I would say is that if there is credible evidence [00:03:30] Speaker 05: on both sides of the evidentiary scale, then unless the evidence clearly and obviously weighs in favor of the government, the reasonable doubt rule should apply and the veteran should be... Okay, so can we apply that here? [00:03:46] Speaker 00: I know you don't do fact-finding and neither do we up here, but applying it here, you had two psychiatrists [00:03:52] Speaker 00: saying, yes, this is serious, but their notes and the reliance on it, the board concluded, really didn't support what they were saying. [00:04:02] Speaker 00: And then you had two VA examiners coming out differently. [00:04:06] Speaker 00: So on that record, you say, no, there's no weighing because it's two to two. [00:04:12] Speaker 00: The veteran should win. [00:04:14] Speaker 00: Or I'm just seeing how you would apply, what tests you would use and how it would be applied in this circumstance. [00:04:24] Speaker 05: Well, I think I articulated the test, and I do believe that there is credible evidence on both sides of the scale. [00:04:32] Speaker 05: Now, I think you're referring to the one that attempted to discredit one of our, the psychiatrist, the treating psychiatrist's opinion. [00:04:43] Speaker 05: The psychologist that did that actually misstated the record. [00:04:47] Speaker 00: And so I think that would inform... Okay, but if the test is there's credible evidence on both sides, then under the benefit of the doubt, the veteran should win? [00:05:00] Speaker 00: No. [00:05:03] Speaker 05: I'm sorry, Your Honor. [00:05:06] Speaker 05: Did I cut you off? [00:05:07] Speaker 05: Go ahead, please. [00:05:08] Speaker 05: I'm sorry. [00:05:09] Speaker 05: I'm worried about... I believe that consistent with the text, [00:05:14] Speaker 05: And more importantly, with the legislative and regulatory history, the rule should be that if there's credible evidence on both sides, then unless the evidence clearly and obviously weighs in favor of the government, the veterans should win under the reasonable doubt rule. [00:05:36] Speaker 02: I don't understand how you get that out of the statute. [00:05:39] Speaker 02: That seems to me [00:05:40] Speaker 02: a reinterpretation of the statute to make it say something which it doesn't say. [00:05:45] Speaker 02: I mean, there's been a lot of discussion about this in the cases and in the briefs in this case, but why isn't the simple test, the one that's in the statute itself, that if there's an approximate balance, the veteran wins? [00:06:00] Speaker 02: And you pointed out, I think perhaps correctly, that this equipoise notion [00:06:07] Speaker 02: is not all that the statute is about. [00:06:10] Speaker 02: It's saying if there's an approximate balance, the veteran wins. [00:06:13] Speaker 02: So why are we making it so complicated and reinterpreting it and trying to redefine the statute? [00:06:20] Speaker 02: Why isn't that a sufficient test in and of itself, approximate balance? [00:06:26] Speaker 05: Well, it is, Your Honor. [00:06:27] Speaker 05: And I apologize if I articulated it. [00:06:30] Speaker 05: I was just looking at it from both sides. [00:06:32] Speaker 05: In other words, yes. [00:06:34] Speaker 05: Approximate balance is the test, the burden of proof for claimants and that's not equipoise and that's clear from the test. [00:06:42] Speaker 05: I was just looking at from the side of the government. [00:06:46] Speaker 05: I mean, I think it's pretty clear. [00:06:48] Speaker 02: You said the test is approximate balance and apply that test and stop worrying about the equipoise notion which has crept into the law. [00:06:59] Speaker 02: Why isn't that satisfactory to you? [00:07:02] Speaker 05: It would be satisfactory as long as the court got rid of the preponderance of the evidence standard for the government. [00:07:08] Speaker 05: That's the problem. [00:07:09] Speaker 02: Well, what do you mean? [00:07:10] Speaker 02: I mean, the statute says the preponderance of the evidence that the veteran has the burden to prove, right? [00:07:20] Speaker 05: On the merits? [00:07:21] Speaker 05: No. [00:07:21] Speaker 05: No, the government, no. [00:07:22] Speaker 05: I mean, if you're talking about burden of persuasion, I mean, just so we can be clear, the veteran has the burden of production under SCOZIN. [00:07:32] Speaker 05: Once he meets that burden, then we're going into the merits, the burden of persuasion. [00:07:37] Speaker 05: And based on the reasonable doubt and the benefit of the doubt rule, all the veteran has to approve on his burden of proof is approximate balance. [00:07:53] Speaker 00: And I look at it at the flip side as saying the government would need to... Where does SCOZIN, you mentioned SCOZIN, is that what SCOZIN says that the burden, the only burden the veteran has is to put forth any credible evidence as strong as... What did you, what you just said, does that come out of SCOZIN? [00:08:10] Speaker 05: No, that comes out of the legislative and regulatory history and I'd be happy to refer you to the joint appendix if that's [00:08:19] Speaker 05: Relevant I mean the way I looked at it is approximate is a somewhat ambiguous term. [00:08:24] Speaker 02: It definitely means less than Even or balance or equipoise, but just how much less is unclear And I think it is unclear and the more we try to define it the more trouble we create it seems to me and that the standard ought to be approximate balance the veteran has the burden of establishing his or her claim and [00:08:47] Speaker 02: And he or she can meet that burden by establishing that the facts are in approximate balance. [00:08:57] Speaker 02: Why isn't that simple? [00:08:59] Speaker 02: And that's what it is. [00:09:00] Speaker 02: And that's what the board and the RO and the Veterans Court ought to be doing. [00:09:08] Speaker 05: Again, that is acceptable to the appellant with the one caveat that you have to get rid of them in this [00:09:16] Speaker 05: analytical framework, you would have to get rid of the preponderance of the evidence language that applies to the government. [00:09:26] Speaker 05: Otherwise, you're running, otherwise, it's incoherent. [00:09:29] Speaker 02: What do you mean? [00:09:30] Speaker 02: What do you mean it applies to the, you mean something that said that it places the preponderance of evidence burden on the government, which it seems to make it consistent with the statute. [00:09:40] Speaker 02: That's wrong. [00:09:43] Speaker 02: Exactly. [00:09:44] Speaker 02: But the vet satisfies the burden by showing approximate bounds. [00:09:49] Speaker 02: That's a simple statement of what the statute says, right? [00:09:53] Speaker 05: Agreed. [00:09:53] Speaker 05: Agreed. [00:09:54] Speaker 05: And that you disapprove the language of preponderance of the evidence for the government. [00:09:59] Speaker 05: And we would be satisfied. [00:10:02] Speaker 05: Because I can't tell you how many times in board decisions, just as an afterthought, that the board, I'm sorry, Aaron, if I could just finish this one statement. [00:10:12] Speaker 05: that I can't say how many times the board says the proponents of the evidence is against the veterans claim, therefore the reasonable doubt rule is not for application. [00:10:24] Speaker 05: It's a tired cliche and it needs to go. [00:10:28] Speaker 05: I'm sorry, Your Honor, I interrupted you. [00:10:30] Speaker 00: Well, why doesn't that adequately, I mean, you know, Ortiz clearly struggled and they recognize this isn't, you know, this isn't a numbers game. [00:10:40] Speaker 00: I mean, you started off by saying if the veteran puts forth credible evidence and the government puts forth credible evidence. [00:10:46] Speaker 00: I don't know what that means. [00:10:48] Speaker 00: I mean, I don't know if the evidence would be equal, somewhat equal, really not equal. [00:10:55] Speaker 00: I mean, fact finders do weighing of evidence all of the time. [00:11:00] Speaker 00: The weighing of the evidence is a critical part of their fact finding. [00:11:04] Speaker 00: So I don't know why you don't need, I mean, it doesn't even, it helps you to say, okay, the government has to make some affirmative showing that's stronger than the veterans in order, that's another way of looking of how you get an approximate balance, because we all agree it's not an equal balance. [00:11:27] Speaker 00: So that the government has to show something more. [00:11:30] Speaker 00: In the absence of that, [00:11:33] Speaker 00: then I don't know how you would apply approximate balance. [00:11:37] Speaker 00: What are you suggesting? [00:11:39] Speaker 00: Nothing. [00:11:40] Speaker 00: You said nothing. [00:11:42] Speaker 05: No, no, no. [00:11:43] Speaker 05: I think I believe I said, and if I did, I apologize. [00:11:48] Speaker 05: What I said was that the appellant would be happy with the approximate balance terminology for defining the veterans of burden of truth. [00:11:59] Speaker 05: And then I said that the, we feel strongly that the, looking at the flip side of the scale, that on the government side that the proponents of the evidence standard has to go. [00:12:13] Speaker 05: Now you may not want to articulate a standard, maybe it's confusing, it's more, it does more confusion than clarification, that may well be. [00:12:21] Speaker 05: But definitely the proponents of the evidence standard has to go. [00:12:25] Speaker 02: And as far as just what? [00:12:27] Speaker 02: I mean the preponderance, the notion that the government has the burden to show by preponderant evidence. [00:12:35] Speaker 02: I mean, I don't know where that came from. [00:12:38] Speaker 02: It's not in the statute. [00:12:39] Speaker 02: To me, it makes no sense. [00:12:42] Speaker 05: I couldn't agree more. [00:12:43] Speaker 05: And just to add from an analytical point of view, it just doesn't make sense. [00:12:49] Speaker 05: Because if you have it where, [00:12:54] Speaker 05: You have something less than equipoise of the evidence. [00:12:57] Speaker 05: And I don't know how you further define approximate, but it's less. [00:13:01] Speaker 05: You can't have preponderance of it. [00:13:03] Speaker 05: You can't have two standards on each side that both can be satisfied at the same time. [00:13:09] Speaker 05: Once one party satisfies its burden of persuasion, that's it. [00:13:16] Speaker 05: The other side necessarily cannot satisfy his or hers. [00:13:21] Speaker 05: That's the only way that [00:13:24] Speaker 05: this analytical framework can work. [00:13:27] Speaker 05: So when I said clear and obvious, I thought that was a way to sort of balance it, to make it the equivalent or reciprocal to approximate balance. [00:13:36] Speaker 05: But if the court feels that it's not helpful, that's fine. [00:13:42] Speaker 05: So again, approximate balance terminology is perfect, because that's the language of the statute and the regulation. [00:13:53] Speaker 05: Let's get rid of preponderance of the evidence because it's not, there's no, it has no factual footing. [00:13:59] Speaker 00: Again, I don't, preponderance of the evidence, I mean, I don't want to quibble over whether or not it's the good terminology and all of these standards are very confusing and very difficult. [00:14:09] Speaker 00: But I think it, I understand it to signify that the government has to do something affirmatively more. [00:14:17] Speaker 00: I don't think, I don't see how that hurts you. [00:14:19] Speaker 00: to say that it's the government needs to come, if not, the veteran wins. [00:14:27] Speaker 00: If the government can't come up with something more affirmative than something equal, then the veteran wins. [00:14:35] Speaker 05: Let me explain. [00:14:36] Speaker 05: Your Honor, I'm sorry to interrupt, but here's another way to look at this issue. [00:14:41] Speaker 05: And you may refer to page 26 of Appellant's opening brief, because I think I cite a legion of cases that talk about [00:14:49] Speaker 05: that equipoise, perfect evidence of the balance, is the reciprocal of preponderance of the evidence. [00:14:57] Speaker 05: And we're talking about approximate balance. [00:15:00] Speaker 05: We're not talking about equipoise here. [00:15:03] Speaker 02: The point is that if you talk about it in terms of placing the burden of proof on the secretary by preponderance, equipoise plus [00:15:15] Speaker 02: a minuscule amount is sufficient. [00:15:17] Speaker 02: And that's not the same thing as approximate balance. [00:15:22] Speaker 05: Right. [00:15:22] Speaker 05: Approximate balance, especially if you invoke the pro-veteran canon for interpreting ambiguous or uncertain language in favor of the veteran. [00:15:33] Speaker 05: That would suggest like a rough estimate, rather than as Ortiz seem to say that it means nearly the same thing. [00:15:42] Speaker 05: So there are many problems, semantically and analytically. [00:15:46] Speaker 00: Is it like preponderance because you think it only requires a miniscule showing by the Veterans Administration? [00:15:58] Speaker 00: Is that the problem, preponderance, that you don't think it's enough, that approximate is wider? [00:16:04] Speaker 05: Well, I'm trying to explain. [00:16:05] Speaker 05: If I could put it this way, that when you look at an evidentiary issue, [00:16:13] Speaker 05: and you're looking at the totality of persuasive evidence, it's a zero-sum model. [00:16:19] Speaker 05: So you have 100% of the evidence, can't have more than that, can't have less. [00:16:23] Speaker 05: That's the total universe. [00:16:25] Speaker 05: So if the government has 70% of the persuasive evidence, then the veteran necessarily has 30%. [00:16:34] Speaker 05: It's a direct inverse relationship. [00:16:37] Speaker 00: Well, I mean, Ortiz pointed out, and I don't think you would disagree, that it's hard to place numbers on this. [00:16:44] Speaker 00: In an evidentiary setting, it's not like how many pieces of paper, how many doctors on your side, how many doctors on the other side. [00:16:52] Speaker 00: It's quality and not quantity often. [00:16:54] Speaker 00: It's the persuasive value of certain people and certain things. [00:17:00] Speaker 00: It's really hard to put this in a numbers game, is it not? [00:17:05] Speaker 05: True enough, but the reason I use the numbers game just to illustrate the point that there are direct reciprocals. [00:17:14] Speaker 05: True, you can't put a, you know, when we're dealing with language, you can't define it in precise mathematical terms. [00:17:21] Speaker 05: Okay. [00:17:22] Speaker 05: But you still have to realize that they're reciprocal. [00:17:25] Speaker 05: In other words, the reciprocal for equipoise of the evidence, perfect equipoise of the evidence, the reciprocal that on the other side is preponderance of the evidence. [00:17:35] Speaker 05: They go together. [00:17:38] Speaker 05: So if we say, well, but here, it's something less than equipoise. [00:17:45] Speaker 00: Well, preponderance is more than equipoise, right? [00:17:51] Speaker 00: It allows you to avoid equipoise root that you're complaining about, right? [00:17:59] Speaker 05: No. [00:18:00] Speaker 05: Jeffress, would it be helpful if I submitted a letter brief? [00:18:03] Speaker 00: No, I'm not going to ask for that. [00:18:05] Speaker 00: Why don't we hear from the government? [00:18:07] Speaker 00: All right? [00:18:10] Speaker 00: Thank you. [00:18:15] Speaker 01: Thank you, Your Honor, and may it please the court [00:18:18] Speaker 01: We would emphasize that Mr. Lynch's argument here is the same one that this court considered and rejected in Ortiz 20 years ago. [00:18:25] Speaker 01: Wait a moment. [00:18:27] Speaker 02: I thought you were agreeing that some clarification of Ortiz would be useful. [00:18:32] Speaker 02: Mr. Lipman says they would be satisfied by standards saying the veteran bears the burden of proof, but it's satisfied if the veteran shows that the [00:18:45] Speaker 02: there's an approximate balance of positive and negative evidence, and that would be sufficient to them. [00:18:51] Speaker 02: Does that satisfy you too? [00:18:52] Speaker 01: It does, Your Honor, and that is consistent with the statutory language. [00:18:57] Speaker 01: I think if I understand some of the questioning from the first round of argument here, [00:19:04] Speaker 01: The issue comes into play of how that gets put into practice, particularly with the standard that the Ortiz Court adopted in evaluating this preponderance of the evidence requirement. [00:19:15] Speaker 02: The equipoise language. [00:19:19] Speaker 02: The equipoise language is wrong, right? [00:19:22] Speaker 01: Well, yes, Your Honor, and there's no disagreement there. [00:19:24] Speaker 01: As we noted in the brief, the Ortiz opinion did not establish an equipoise standard, and to the extent that Mr. Lynch argued as such in his brief, that is an incorrect reading of the Ortiz Court. [00:19:34] Speaker 01: If you actually review the Ortiz opinion and the language that it uses, it notes that approximate balance just in plain language construction contains two terms, approximate and balance. [00:19:46] Speaker 01: and notes that the balance portion is where the equipoise standard could come into play. [00:19:51] Speaker 01: That balance in the court's construction means this equal footing, this equipoise standard, but that the approximate language, the adjective there, modifies that. [00:20:01] Speaker 01: And so the Ortiz Court expressly rejected this idea that the benefit of the doubt rule only applies in this equipoise context. [00:20:10] Speaker 02: So what are we arguing about? [00:20:11] Speaker 02: If you both agree that the standard ought to be the veteran has [00:20:15] Speaker 02: the burden and if in the case of approximate balance, the veteran wins. [00:20:20] Speaker 02: Why isn't it that simple? [00:20:22] Speaker 01: Well, Your Honor, as I understand what Mr. Lynch is contending is that the- Let me just try to answer my question. [00:20:29] Speaker 02: Why isn't it you agree with that standard? [00:20:31] Speaker 02: He agrees with that standard. [00:20:34] Speaker 02: What are we fighting about? [00:20:36] Speaker 03: It's clear to me that Mr. Littman on behalf of his client [00:20:42] Speaker 03: as all of us agree that approximate balance is the test, not equipoise, and that we probably should write an opinion that says anyone who's reading or keys to require only equipoise is wrong. [00:20:57] Speaker 03: But perfectly clearly, that's not the problem in all these veterans cases. [00:21:02] Speaker 03: The problem in these veterans cases is that if the secretary can show by preponderance of the evidence [00:21:10] Speaker 03: that his side is right and the presumptive benefit of the doubt never can go to the better. [00:21:16] Speaker 03: I think Mr. Lippman could not have been more clear. [00:21:18] Speaker 03: He's telling the panel that he hopes we will recommend to the in-back court that we completely get rid of the correspondence of the evidence as a game winner for the VA. [00:21:36] Speaker 03: In all these cases, the problem is the fact that if the government can show by ponderance, which means equipoise plus peppercorn, then the benefit of the doubt rule doesn't apply. [00:21:51] Speaker 02: And that's wrong, right? [00:21:53] Speaker 03: I don't know whether that's right or wrong, but we are bound by that, in my judgment, by Ortiz. [00:22:01] Speaker 02: And I'm asking government counsel if that's wrong. [00:22:06] Speaker 03: Oh, I thought you were asking me. [00:22:11] Speaker 03: No. [00:22:11] Speaker 03: In responding to that, the government should start with where Mr. Lippman ended off saying he doesn't see any textual footing in the statute or letting the government off when it can show by preponderance on its case. [00:22:29] Speaker 03: Or maybe the government can start with the statute. [00:22:35] Speaker 01: And I'll do my best. [00:22:36] Speaker 01: to answer Judge Steig's question and to explain that I agree with virtually everything Judge Clevenger just said except for the equipoise puff plus peppercorns. [00:22:49] Speaker 01: I believe that that is not exactly how the Ortiz Court construed the language and that is where there is perhaps some tension between how Mr. Lippman is reading the cases and the government's reading of the cases and Ortiz and its progeny. [00:23:06] Speaker 02: But you agree that equipoise plus a peppercorn is wrong, right? [00:23:10] Speaker 01: Yes, Your Honor. [00:23:11] Speaker 01: We would agree that equipoise plus a mere peppercorn is wrong. [00:23:14] Speaker 01: But we disagree that that is the standard that Ortiz created. [00:23:16] Speaker 03: Your point is, you're taking out a context when I said the equipoise plus a peppercorn defines what a preponderance of the evidence is. [00:23:28] Speaker 01: Oh, Your Honor, we would disagree with that, at least in the context of how Ortiz had defined preponderance of the evidence standard. [00:23:35] Speaker 03: Ortiz didn't put any gloss on what a preponderance of the evidence is. [00:23:40] Speaker 03: He just said, where the evidence preponderates in favor of the government, then the veteran can't get the benefit of the doubt. [00:23:49] Speaker 01: That's true. [00:23:50] Speaker 01: And as we understand the distinction here, though, there is a logical contradiction between evidence that is approximately in balance and evidence that preponderates in favor of one party or the other. [00:24:03] Speaker 01: under a plain language construction of the statute, which is what Ortiz engaged in, that whatever meaning Congress could have intended under the phrase approximate balance, it's simply illogical to say that a given set of evidence can be both in approximate balance while also preponderating in favor of one party or the other. [00:24:24] Speaker 01: Those are two distinct legal concepts and that Congress could not have intended that conceptual overlap with the plain language it chose [00:24:32] Speaker 01: by offering approximate balance. [00:24:34] Speaker 01: And in terms of the statutory interpretation, that's further supported by the preceding subsection of 5107A, which still states clearly that the claimant has the responsibility to present and support a claim for benefits of any kind. [00:24:52] Speaker 01: And so it would be very odd for Congress to have on the first subsection affirmed [00:24:58] Speaker 01: that the claimant has the responsibility to present and support a claim for benefits. [00:25:02] Speaker 01: And in the second subsection, create without any sort of clear textual indication that that responsibility in essence is satisfied by a set of evidence where the evidence, the weight of the evidence and the persuasive value of the evidence weighs against the claim. [00:25:23] Speaker 01: that those are two distinct legal concepts, conceptual concepts, and that's really the essence of the Ortiz opinion to say, as Ortiz said, and I think this panel has also understood and grappled with, that these are not mathematical concepts. [00:25:39] Speaker 01: These are qualitative evaluations, particularly in the veteran's benefit context. [00:25:44] Speaker 01: You're evaluating medical information. [00:25:47] Speaker 01: You're evaluating credibility of the witnesses. [00:25:50] Speaker 01: There is not a strict mathematical formula here, and this approximate balance may allow for a certain gray zone where there is evidence in favor of one party or the other, but what the Ortiz Court said quite reasonably is that you don't need to make a very fine-grain distinction of the evidence within this approximate balance framework. [00:26:10] Speaker 01: That would be extremely difficult. [00:26:11] Speaker 01: It would make the administration of these claims much more difficult. [00:26:15] Speaker 01: What you can say very clearly is that [00:26:17] Speaker 01: If the fact finder is persuaded after a review of all the evidence that the evidence weighs in favor clearly by one party or the other by preponderance of the evidence standard, then the evidence by definition is not an approximate balance under any construction of that term. [00:26:33] Speaker 01: And therefore, it is a clear bright line standard that's easy to adjudicate that sets out the standard for all of the board's regional offices and veterans court to apply. [00:26:46] Speaker 00: You used the word, let me just clarify, because there are a lot of words being thrown around here. [00:26:50] Speaker 00: I mean, I was following you. [00:26:52] Speaker 00: You somehow, you were saying, did you say you have to show that it clearly persuades or that it persuades? [00:27:02] Speaker 01: With that, it persuades, Your Honor, and I apologize if I inserted a word unintentionally there. [00:27:08] Speaker 01: The standard for the preponderance of the evidence is that the fact finder is persuaded by the weight of the evidence that a fact is more likely to be true than not. [00:27:17] Speaker 02: And so... Well, that seems to ignore the approximate balance test. [00:27:21] Speaker 02: Because as Judge Plevenger pointed out, preponderance means equality plus a peppercorn. [00:27:30] Speaker 02: And that's not what the statute says. [00:27:31] Speaker 02: So that seems to me to be a very confusing way of stating the proposition that's incorporated in the statute. [00:27:40] Speaker 01: Well, Your Honor, as we read the Ortiz opinion, it provides some flexibility for the fact finder to make a determination that there is some muddiness in the evidence. [00:27:50] Speaker 02: Isn't my statement right? [00:27:54] Speaker 02: The quality, I thought you agreed with it, the quality plus the peppercorn in terms of preponderance on the government is not faithful to the statute. [00:28:02] Speaker 02: It has to be that the veteran wins in the case of approximate balance, not just the government a little bit has better evidence than the veteran. [00:28:16] Speaker 01: And we do not understand, though, the Ortiz [00:28:18] Speaker 01: opinion to create that sort of requirement for the fact-finding. [00:28:22] Speaker 01: And in the experience of the VA in putting the standard into effect, the general practice is that if there is some ambiguity or relative equal weighting of the evidence, that is when the benefit of the doubt rule applies. [00:28:37] Speaker 01: But in practice, it is incumbent upon the government and as the Skozen Court recognized to shift the burden of persuasion, [00:28:47] Speaker 01: such that the government does have to provide some sort of gap in that evidentiary balance to meet the preponderance of the evidence standard under this statute and to basically preempt the application of the benefit of the doubtful. [00:29:04] Speaker 03: Mr. Research Judge Cleminger, so what under 5107A, what's, what burden, what measure of proof does the veteran have to bring forward to win? [00:29:14] Speaker 03: The ponderance? [00:29:16] Speaker 01: So, Your Honor, what 5107A says is that the veteran must provide sufficient evidence to establish entitlement to the benefit. [00:29:24] Speaker 01: And so it is incumbent upon the veteran to provide all of the evidence necessary for the fact finder to determine that the benefit may be granted and that the particular... Was that equivalent with underage? [00:29:38] Speaker 01: No, Your Honor. [00:29:40] Speaker 01: As reading the two sections in harmony and consistent with your key's opinion, our understanding is that [00:29:46] Speaker 01: It simply requires a prima facie showing that all of the elements have at least some evidence submitted to support their existence. [00:29:56] Speaker 01: Then, of course, it's up to the VA to consider that evidence as well as to consider any contrary evidence that may be evident in the record as well. [00:30:05] Speaker 01: And that's where you get this weighing of the evidence [00:30:09] Speaker 01: such that if the VA determines that even after the veteran has produced sufficient evidence to establish a prima facie entitlement such that all of the elements are checked off and there's at least some evidence relevant to each of those elements, if nonetheless there is contrary evidence in the record, the VA can't simply ignore that. [00:30:30] Speaker 01: And that's where the preponderance of the evidence on the government can come into play or the benefit of the doubt rule can be applied to say, [00:30:38] Speaker 01: if there is contrary evidence, does that undercut? [00:30:42] Speaker 03: Am I correct that part of the law has been applied saying that all this presumption, the benefit of that will not apply if the evidence preponderates in the government's favor? [00:30:55] Speaker 03: That element of preponderance has been in the law since the 1930s or even before. [00:31:00] Speaker 03: Isn't that correct? [00:31:03] Speaker 01: That is correct, and we did not engage. [00:31:05] Speaker 03: And that the various [00:31:07] Speaker 03: refinements of the regulatory benefit of the doubt standard as it stands out in Congress, statements in the Congress was that they weren't intending to change the basic rule. [00:31:21] Speaker 01: Yes, that is correct. [00:31:23] Speaker 01: And we didn't engage at length on the legislative and regulatory history that Mr. Lynch provided in his opening brief because the statutory language has previously been found to be unambiguous. [00:31:33] Speaker 01: But that is the correct reading that there has been a consistent application of this rule for nearly 100 years and that there have only been sort of minor tweaks at the margin to ensure administrability continues to be viable. [00:31:47] Speaker 01: And on that point, as my time is getting low, I do want to make the one point in rebuttal to Mr. Lynch's argument to say that administrability of this standard is still a preeminent concern for the government here and clearly a concern for Congress as well, reviewing some of the legislative history. [00:32:06] Speaker 01: If the court were to entertain the standard that Mr. Lynch is proposing here, which would be [00:32:12] Speaker 01: that the government has some burden or obligation to establish by, as I believe I understood the rule being proposed, some sort of clear and credible evidence that the benefit should not be granted, that would essentially make the presumption that any veteran who can provide any evidence of any credibility level is entitled to benefits. [00:32:38] Speaker 01: and then the government would be obligated in every instance to then undertake some sort of more affirmative investigation and evaluation of evidence in an attempt to disprove that entitlement. [00:32:49] Speaker 01: And that is not only inconsistent with the overall statutory framework, it's inconsistent with prior precedents which say that the VA should be a fair and neutral arbiter in these application processes, that it is not the VA's job to attempt to disprove entitlement to benefits. [00:33:06] Speaker 01: The VA should be fairly weighing the evidence as an impartial government agency. [00:33:11] Speaker 01: It would also make for a much more difficult [00:33:15] Speaker 01: standard of review an application by the fact finder. [00:33:19] Speaker 01: And while Mr. Lynch may suggest that there is some difficulty in [00:33:34] Speaker 01: evaluating this preponderance of the evidence standard in light of the approximate balance, that difficulty would only be worse by imposing yet a different clear and credible evidence standard and then requiring the fact finder to make [00:33:49] Speaker 01: what would be additional sort of evidentiary weighings to try to apply this particular statutory provision that if nothing else. [00:33:57] Speaker 00: What is your response to, I think Mr. Lippman, and he can correct me if I'm misstating his position, but I think in response to a dialogue he was having with Judge Dyke said he'd be perfectly happy with nothing other than approximate balance, period. [00:34:14] Speaker 00: taking away, I mean, obviously, deleting or taking out of the case law this preponderance thing and just leaving it at approximate balance. [00:34:22] Speaker 00: Do you have a position on that? [00:34:25] Speaker 01: Yes, Your Honor. [00:34:26] Speaker 01: We would not recommend that. [00:34:27] Speaker 01: Well, it would certainly be not contrary to the statutory language. [00:34:32] Speaker 01: And I know we haven't really addressed much of the case law on the stare decisis issues. [00:34:37] Speaker 01: But I'll simply mention that one of the stare decisis [00:34:41] Speaker 01: elements is evaluating the workability of the existing doctrine and also comparing it to the workability of the alternative proposed. [00:34:50] Speaker 01: And that comes from the lighting ballast control case. [00:34:53] Speaker 01: And there, this court did in fact examine the proposed alternative and found it to be less workable. [00:35:00] Speaker 01: And our position is that that's the exact same situation here. [00:35:03] Speaker 01: While it may be more faithful to the plain text of the statute to simply say the rule is approximate balance, [00:35:10] Speaker 01: it would not provide a more workable solution because these issues would still come up. [00:35:14] Speaker 01: The same thing that Ortiz decided that came up a couple of years later in the Sagan opinion that this court decided, you would still have these questions of, well, when does the rule apply? [00:35:23] Speaker 01: So it would not necessarily clarify or help the overall workability of the statutory regime to simply say approximate balance is the test and that's it because the fact finder is... Well, I thought at the beginning of your argument that you'd be satisfied with that. [00:35:40] Speaker 01: Well, Your Honor, I want to be clear that there is... The statute says approximate balance. [00:35:46] Speaker 02: What's the problem with using the statutory language? [00:35:51] Speaker 01: Your Honor, what we have here is a 20-year body of case law that has developed, beginning with Ortiz and then cases from this court as well as on down the line, that has said that approximate balance is the statutory standard. [00:36:03] Speaker 01: That is the clear text and it is unambiguous. [00:36:07] Speaker 01: But that when you put that into practice, you still have to weigh essentially what instances of evidence are not in approximate balance. [00:36:16] Speaker 01: And to go back to the point that Mr. Lippman was raising, there is this idea of reciprocal consideration. [00:36:22] Speaker 01: So it may be true that you consider what is in approximate balance when determined to apply the bench of the doubt rule. [00:36:29] Speaker 02: What do you think the test ought to be? [00:36:31] Speaker 02: Let's assume we were writing on a clean slate. [00:36:33] Speaker 02: What do you think the test ought to be? [00:36:35] Speaker 02: The statute says approximate balance. [00:36:37] Speaker 02: How do you want to interpret that or clarify that or add to it? [00:36:44] Speaker 02: What do you want? [00:36:46] Speaker 01: Your Honor, our position is that there is no better way and no more reasonable way to interpret the statute than the way Ortiz did. [00:36:53] Speaker 01: And that is simply to say that approximate balance means that there is some relative equality of the evidence [00:37:01] Speaker 01: that is not amenable to a strict mathematical formula but that if the evidence weighs in favor of either party by a preponderance of the evidence, that by just pure logic and legal definition is not an approximate balance and therefore the benefit of doubtful does not apply. [00:37:16] Speaker 01: That is the standard. [00:37:18] Speaker 02: That latter part seems to be completely inconsistent with the notion that an approximate balance of veteran wins because if all it does is put the burden on the government to show [00:37:30] Speaker 02: equality plus a peppercorn, that's not consistent with the statute, is it? [00:37:35] Speaker 01: Well, it is, Your Honor, because the benefit of the doubt rule, as it states, is to provide the benefit of the doubt to the veteran when there is an approximate balance of positive and negative evidence. [00:37:45] Speaker 01: Ordinarily, when you have that approximate balance of positive and negative evidence, the veteran would not win because [00:37:53] Speaker 01: Ordinarily, the veteran would have that burden of proof and persuasion and as this goes in court recognize what the statute does is remove at least the burden of persuasion from the veteran there. [00:38:03] Speaker 01: So saying that the benefit of the doubt rule applies when the evidence in approximate balance. [00:38:07] Speaker 01: essentially puts that burden of persuasion on the government instead of the claimant. [00:38:11] Speaker 01: And that is the benefit of the doubt, the pro-veteran effect of the statute. [00:38:16] Speaker 00: Can I just ask for clarification? [00:38:17] Speaker 00: Because this has come up like a dozen times in this. [00:38:20] Speaker 00: Does this equality plus a peppercorn, does that appear in any of our cases? [00:38:25] Speaker 00: And are you agreeing that that is the standard equality plus a peppercorn? [00:38:31] Speaker 01: No, it does not, Your Honor, appear in the cases and the government does not agree that that is the appropriate standard here in case I have not made that previously clear. [00:38:38] Speaker 01: And I would refer specifically to the Ortiz opinion for that as well because the Ortiz opinion also grappled with this idea of how strict the standard is for preponderance of the evidence. [00:38:49] Speaker 01: And the Ortiz opinion itself disclaimed this notion that it is sort of a mere feather on the balance of the scales or a mere peppercorn that [00:38:58] Speaker 01: that it does require some more substantial evidence that persuades the fact finder that the particular evidence is more likely than not. [00:39:08] Speaker 01: And that's at page 1365 of the Ortiz opinion. [00:39:13] Speaker 00: Anything further, colleagues? [00:39:15] Speaker 00: Thank you. [00:39:17] Speaker 00: Thank you, Your Honor. [00:39:18] Speaker 00: Mr. Whitman, we'll restore some time. [00:39:20] Speaker 00: Why don't we start with four minutes? [00:39:22] Speaker 00: We'll see what you need, if you have any more to add. [00:39:26] Speaker 05: Thank you, Your Honor. [00:39:26] Speaker 05: I'd like to pick up where [00:39:29] Speaker 05: Judge Clevinger was discussing, I think, Judge Clevinger, you were sort of suggesting the codification theory in favor of the government, but I don't think that really has any legs. [00:39:47] Speaker 05: If we have to determine what the law existed or what the interpretation of the benefit of the doubt and reasonable doubt rules were at the time of the Veterans Judicial Review Act of 1988, which is the touchstone for determining the reasonable doubt rule, if you turn to the Joint Appendix 80, if you would, and I'm looking at the bottom, [00:40:17] Speaker 05: I'd like to read it, because this is the 1984 congressional enactment. [00:40:23] Speaker 05: It's called the Public Law 98-542, and I'm looking at Subdivision 213, and it says, it has always been the policy of the Veterans Administration and is the policy of the United States. [00:40:38] Speaker 05: And then I jump ahead. [00:40:40] Speaker 05: When after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence to trigger that. [00:40:51] Speaker 05: So I don't think that there was some pre-existing rule that was different than the approximate balance language at the time of the enactment of the BJRA. [00:41:02] Speaker 00: I didn't understand Judge Clevenger to say that. [00:41:05] Speaker 00: He can obviously speak for himself. [00:41:07] Speaker 00: No, I didn't. [00:41:09] Speaker 03: All I was trying to say is this is a very interesting situation because the statute follows the regulation by some 70 or 80 years. [00:41:20] Speaker 03: So you have long, long practice in the agency of granting the benefit of the doubt using the preponderance of the evidence test on the government side as a test for when there could be a benefit of the doubt. [00:41:35] Speaker 03: to when the evidence could be an approximate balance. [00:41:38] Speaker 03: That's all I was trying to say. [00:41:39] Speaker 03: So you start off the story. [00:41:42] Speaker 03: Whoever created this notion of having the benefit of the doubt for the better in these cases, which we all agree is proper, that came well before Congress ever looked at it. [00:41:53] Speaker 03: And they had a long, long history of the application of that, where the agency was using the correspondence of the evidence test viewed through the lens of the case [00:42:05] Speaker 03: put on by the VA to determine whether you could say there was an approximate balance of the evidence. [00:42:12] Speaker 03: That's all I'm saying. [00:42:15] Speaker 03: And I think that, I think what I just said is undeniable. [00:42:21] Speaker 05: Okay, I just, I'm just concerned that, because this issue wasn't raised by the government and it was theirs to raise. [00:42:28] Speaker 03: I don't think that the... The first reason why I wasn't raised is that what you're asking us to do is to overrule our keys. [00:42:35] Speaker 03: And that's on the authority of this panel. [00:42:40] Speaker 03: And so most of this discussion and this oral argument belongs in a brief for seeking in-bank re-hearing. [00:42:50] Speaker 03: It's useful as a precursor for two judges to be able to think about the in-bank consequences of this case. [00:42:59] Speaker 05: Fair enough, Your Honor. [00:43:01] Speaker 05: I think it's also helpful to look at, I think some of the judges were asking where I got the clearly preponderant or credible evidence. [00:43:20] Speaker 05: And so I think you might, for those that are interested, page 72 of the joint appendix, [00:43:30] Speaker 03: You know, there's no question but what the words clearly preponderance have been dropped in here. [00:43:35] Speaker 03: There's also no question that the notion of clear preponderance is a term of art and that it exists in the law in many areas. [00:43:44] Speaker 03: If you look at 29 USC 1401C, you'll see the standard applied for reviewing arbitrators' decisions. [00:43:53] Speaker 03: If you look in the tax code, if you look at Von Drugs, the Seventh Circuit case, you'll see the same thing. [00:44:00] Speaker 03: But no one in this case has bothered to tell us what the difference between clearly preponderant and preponderant is, although an examination of the case law would let us know that. [00:44:14] Speaker 03: So we've been wandering around the dark, sort of throwing darts, if you will, at a target without the information that the parties could have given us if they wanted to have this pre-in-bank discussion in any meaningful way. [00:44:31] Speaker 05: Well, I apologize, Your Honor, if I should have provided more information. [00:44:38] Speaker 03: When you're asking us first to get rid of the clearly preponderance test as a wish, but then with a backup, you're saying, oh, you can keep it but make it clearly preponderance or preponderance plus or whatever, I would have thought you had an obligation to help us know exactly what you were talking about. [00:44:59] Speaker 03: And I would think the government shouldn't have engaged as well. [00:45:03] Speaker 05: Fair enough, Your Honor. [00:45:04] Speaker 05: And I apologize if I missed that. [00:45:07] Speaker 05: Honestly, from my research, I couldn't find any definition. [00:45:12] Speaker 05: The only definitions that I could find were on clear and convincing. [00:45:16] Speaker 05: And I think the standard is lower than that, clear and convincing. [00:45:19] Speaker 03: If you look at 29 U.S. [00:45:21] Speaker 03: Code 1401C and then jeopardize the thousands of cases that have dealt with [00:45:27] Speaker 03: are labor arbitrators who have had their decisions upset by a showing of clear proponents of the evidence? [00:45:37] Speaker 05: I'm sorry, Your Honor. [00:45:38] Speaker 05: I didn't get the 29 USC. [00:45:39] Speaker 03: 29 USC, 1401 subsection C, as in Charlie. [00:45:47] Speaker 05: My apologies, Your Honor. [00:45:48] Speaker 00: Did you have any concluding remarks, Mr. Lippmann? [00:45:53] Speaker 05: The only concluding remark I would say is that I've [00:45:57] Speaker 05: Approximate balance is, it would be acceptable appellant and to get rid of the preponderance of the evidence standard on the government side. [00:46:09] Speaker 05: And that, thank you very much. [00:46:11] Speaker 00: Thank you both very much. [00:46:12] Speaker 00: I appreciate it. [00:46:14] Speaker 00: The case is submitted.