[00:00:00] Speaker 00:
The next argued case is number 2017-62, Tadlock against the Secretary of Veterans Affairs, Mr. Harris.

[00:00:12] Speaker 00:
Mr. Henness.

[00:00:15] Speaker 03:
Thank you, Judge Newman, and may it please the court.

[00:00:18] Speaker 03:
My name is Carl Henness, and I represent the appellant Howard L. Tadlock Jr.

[00:00:24] Speaker 03:
The review process that Congress created for veterans' benefit claims

[00:00:28] Speaker 03:
is supposed to place a thumb on the scale in favor of veterans like Mr. Tadlock.

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But two heirs by the divided Veterans Court below turned that uniquely pro-veteran process on its head and made it harder for Mr. Tadlock to receive the disability benefits he deserves.

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First, the Veterans Court exceeded its authority by making a factual finding the Board had not made and by affirming the Board's decision

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based on that entirely new ground.

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Second, the Veterans Court refused to invalidate the regulation covering medically unexplained chronic multi-symptom illnesses, which directly conflicts with its authorizing statute.

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I'd like to begin with the first error, which requires this court to vacate the Veterans Court's decision with instructions to remand Mr. Tadlock's case to the board.

[00:01:24] Speaker 02:
As you know, by statute, the Veterans Court is required to consider the rule of prejudicial error when evaluating board decisions.

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And so therefore, there are times where the Veterans Court permissibly may affirm a board decision even though the Veterans Court at the same time identifies some kind of error in the board's judgment.

[00:01:54] Speaker 02:
Can you explain to me how, under what circumstances is it appropriate to apply that in a way that doesn't violate the Chenery Doctrine?

[00:02:10] Speaker 03:
Absolutely, Judge Chin.

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So in this court's decisions in Newhouse and Lechick, which the government principally relies on, this court has held that when the board decides an issue,

[00:02:22] Speaker 03:
and the Veterans Court find that the board aired, then the Veterans Court is in position to consider whether that air is harmless on that point.

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So the Veterans Court has to kind of be driving in the same lane that the board was driving in, so to speak.

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But by contrast, this court's decisions in Henley, Mayfield, and Winters establish that when the Veterans Court finds that the board aired in deciding one issue,

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The Veterans Court cannot use harmless air to find facts and affirm the board on an entirely different ground that the board had not considered.

[00:03:00] Speaker 02:
And therein lies the rub.

[00:03:03] Speaker 02:
Can you put a little more detail in your answer when you say things like the Veterans Court needs to be in the same lane as the board decision and the Veterans Court can't go to a different ground than the board's decision?

[00:03:20] Speaker 02:
If you can imagine that kind of terminology is a little vague, and I think we need a little more precision in terms of understanding how these two principles coexist.

[00:03:34] Speaker 03:
Sure.

[00:03:34] Speaker 03:
So I think that as far as when it's permissible, a good example is this court's decision in Newhouse.

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The Veterans Court's harmless air analysis was related to the same issue the board decided.

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The board decided the case based on notice.

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The Veterans Court found that it erred, but yet it also affirmed on harmless error based on whether the veteran had received proper notice.

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And in that situation, harmless error, it's no surprise.

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The veteran has fair notice of what is going to be considered by the Veterans Court.

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Here, by contrast,

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The Veterans Court weighed medical evidence that the board had not weighed.

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It applied a provision the board had not applied.

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And it made a dispositive medical finding the board had not made on an issue the parties had not briefed.

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So, you know, whatever the line is, this case falls far outside the line.

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And you're putting a veteran in a position where

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You know, and veterans are often, you know, proceeding pro se in these kind of cases where they have to anticipate arguments that the Veterans Court may, Sue Espante, come up with to reject their claim.

[00:05:02] Speaker 02:
I think I agree with you instinctively that there's something strange in the Veterans Court

[00:05:08] Speaker 02:
independently canvassing the record and then interpreting the record and drawing inferences from it to arrive at a particular fact finding that there were no overlapping symptoms or signs in this case.

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But what if the board, in making its various findings in this particular case, had found that in interpreting all the medical evidence in the record,

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the board had found that Mr. Tadlock suffered from only one condition, a single symptom.

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It didn't necessarily, and also assumed that the board didn't key off on that fact finding to conclude that his benefits claim should be denied.

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But nevertheless, very clearly, undisputedly made that very fact finding.

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And then we had a Veterans Court that said, well,

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as it did here, we don't like the fact that the board made a ruling that was based at least in part on a conclusion that this was a, that Mr. Tadlock's diagnosis was not an undiagnosed diagnosis.

[00:06:23] Speaker 02:
It doesn't have to be an undiagnosed diagnosis, but nevertheless, the board made a very clear fact finding here that there's only a single symptom in the record.

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And so therefore, for that reason alone,

[00:06:37] Speaker 02:
the denial of benefits should be affirmed.

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Would that be appropriate?

[00:06:42] Speaker 02:
Would that be an okay application of the harmless error doctrine?

[00:06:50] Speaker 03:
Judge, I think that it would depend on the circumstances, to be honest, in which the board made that finding in that instance.

[00:06:58] Speaker 02:
Okay, so this could be a circumstance where that would be okay and then a circumstance where that would not be okay.

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So, you know, this court has held that, you know, if the board provides the complete, you know, factual predicate for, you know, the harmless error analysis, but in a different, you know, context of that is okay.

[00:07:19] Speaker 03:
In this case, you know, a finding of one symptom without, you know, this particular overlapping signs and symptoms also wasn't at issue before the board.

[00:07:29] Speaker 03:
No one had, you know, really raised it in this kind of non... I understand that.

[00:07:33] Speaker 03:
Please stick with the hypothetical.

[00:07:35] Speaker 03:
Absolutely.

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So, in this case, I mean, if the board just made an offhanded comment about, you know, a symptom without showing that it had, you know, necessarily focused on that particular issue, and that particular issue is not before the board, in that instance, I think that affirming on that ground would not be proper, and it would be proper to send back for the board to make the relevant fact-finding in the first instance.

[00:08:03] Speaker 03:
And that, you know, I mean,

[00:08:05] Speaker 03:
coming back to your original question really you know on where the line is between when can be veterans court a firm on harmless air and when can it not uh... the government like no case from this court allowing the veterans court to use harmless air to reach an entirely new ground uh... that the board had not considered or to make dispositive medical findings and i think that that's another uh... to the extent new house in what chick are relevant and we think they are distinguishable

[00:08:35] Speaker 03:
uh... on the you know whether the veterans court could reach harmless air there those are also notice violations which require no special expertise by contrast here uh... we have a medical finding after apparently weighing medical evidence uh... and and that even further because that is within the board in the regional office i mean that's within their expertise

[00:09:02] Speaker 03:
to weigh that medical evidence in the first instance.

[00:09:06] Speaker 02:
I understand everything you just said and, you know, it may well be that in this particular instance the Veterans Court went too far on these facts.

[00:09:14] Speaker 02:
But what I'm asking you is to help the court try to devise a line of up to what point may the Veterans Court use this statutory authority of considering prejudicial error.

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And that's why I'm asking you to perhaps alter the fact pattern that we have in front of us in a way that you would imagine that that would be a permissible use.

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But of course, your facts are different.

[00:09:47] Speaker 03:
I fully concede that if the board had provided the complete factual predicate to the Veterans Courts Harmless Air Analysis, that that does not raise chenri issues.

[00:10:03] Speaker 03:
You know, the rule that we are advancing and we think is reflected in this Court's, you know, decisions in Henley, Mayfield and Winters is that the Veterans Court cannot use harmless air to reach an entirely different ground that the Board had not considered.

[00:10:19] Speaker 02:
Well, I guess what I'm wondering is why wouldn't that be affirming on a different ground?

[00:10:25] Speaker 02:
If the ground that the Board ultimately settled on was the fact that in its view this was

[00:10:33] Speaker 02:
not an undiagnosed illness.

[00:10:36] Speaker 02:
And you need to be an undiagnosed illness to qualify.

[00:10:39] Speaker 02:
And the Veterans Court said, well, that's not a right understanding of either the regulation or the statute.

[00:10:45] Speaker 02:
But nevertheless, I see that the board also, in its considered judgment, made a very real fact finding in interpreting the medical record evidence that there was only a single symptom here.

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So the error

[00:11:02] Speaker 02:
The legal error of the board and its understanding of the statute and regulation is immaterial because the veteran doesn't qualify for these benefits based on this other fact finding.

[00:11:18] Speaker 02:
Wouldn't that be a separate ground as you say?

[00:11:21] Speaker 02:
And so therefore that in your view, based on your lead argument as I understand it, would be impermissible application of this prejudicial error rule.

[00:11:32] Speaker 03:
It'd be a different ground, Your Honor, but it would not be on a ground that the board had not considered.

[00:11:37] Speaker 03:
If the board has brought its judgment to bear on an issue and provided the complete factual predicate, then we don't have a chennery problem.

[00:11:48] Speaker 02:
So you can do the prejudicial error analysis on a separate ground when that separate ground has all of the factual predicates developed

[00:12:02] Speaker 02:
in the record below.

[00:12:03] Speaker 02:
Is that the rule?

[00:12:08] Speaker 03:
That's right, Your Honor.

[00:12:08] Speaker 03:
When the board has actually addressed that issue, you can do it.

[00:12:13] Speaker 03:
And here, we just don't have that.

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And in fact, we don't even have briefing in the Veterans Court addressing this issue.

[00:12:20] Speaker 03:
The dissenting judge below noted that this is the latest in a line of harmless

[00:12:27] Speaker 03:
uh... aggressive harmless air analysis that this court has applied uh... so we would ask uh... this court to give effect to congress' delegations of power to vacate the veterans court's decision and to remand to allow the board to find medical facts in the first instance and i just briefly want to touch on point two uh... and the veterans court dodged the validity of this regulation based on its flawed harmless air analysis uh...

[00:12:55] Speaker 03:
But, you know, we're left with an unavoidable language that the plain language of the authorizing statute 1117 conflicts with the regulation, section 3.317A12.

[00:13:08] Speaker 03:
And we lay out the legislative history in our brief at pages 26 to 28 that Congress amended the statute in order to overturn this limitation.

[00:13:18] Speaker 02:
The veteran court didn't reach that question, is that right?

[00:13:22] Speaker 03:
It didn't reach that particular question, Your Honor.

[00:13:25] Speaker 02:
Is that right?

[00:13:28] Speaker 03:
That's right.

[00:13:30] Speaker 02:
Why would we reach it?

[00:13:33] Speaker 03:
Well, Your Honor, the Veterans Court did rely on the regulation 3.317.

[00:13:36] Speaker 03:
That's a different part of the regulation, though, than the one that you want to invalidate.

[00:13:42] Speaker 03:
Different, but I think by relying on one, you have to implicitly find that the other one doesn't apply.

[00:13:49] Speaker 03:
So there's certainly some tension in

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Having, you know, two conflicting provisions of a regulation and relying on one, you have to implicitly rely on the other.

[00:13:59] Speaker 02:
And... Why is that so?

[00:14:01] Speaker 02:
I didn't quite understand that.

[00:14:04] Speaker 02:
I mean, I didn't see anywhere in the Veterans Court opinion where it's ruling based on another aspect of the regulation was by necessity had to bless the validity of the

[00:14:20] Speaker 02:
piece of the regulation you want to attack?

[00:14:23] Speaker 03:
I think by finding that the board clearly aired that the Veterans Court accepted the valid portion of the regulation and that's 3.317A22 and you know by implication it had to reject the contradictory provision 3.317A12

[00:14:45] Speaker 03:
And so this, you know, it's a fully brief question and we think it's appropriate for resolution here.

[00:14:52] Speaker 03:
But at the very least, since the parties seem to be in some agreement, a clear statement from this court that a diagnosed but medically unexplained illness qualifies for compensation would go a long way to ensuring that veterans like Mr. Tadlock are getting the benefits they deserve.

[00:15:09] Speaker 03:
And I'll reserve my remaining time for rebuttal.

[00:15:12] Speaker 03:
Thank you.

[00:15:13] Speaker 00:
Okay.

[00:15:14] Speaker 00:
All right, thank you.

[00:15:15] Speaker 00:
We'll hear from the Secretary, Ms.

[00:15:17] Speaker 00:
Biesak.

[00:15:19] Speaker 05:
Thank you, Your Honor.

[00:15:20] Speaker 05:
May it please the Court?

[00:15:22] Speaker 05:
The Veterans Court here applied its harmless error statutory mandate consistent with the guidance provided by both this Court and the Supreme Court in recognizing that that mandate is very broad and that mandate

[00:15:40] Speaker 05:
requires the Veterans Court to look to the entirety of the record, not simply the specific facts relied upon by the board in its own determination.

[00:15:52] Speaker 02:
And... So it's your view that the Veterans Court can engage in a de novo fact-finding exercise where it has to meticulously review all different pieces of the record and then analyze

[00:16:08] Speaker 02:
the record and then draw inferences from the record in a way that the VA never had before.

[00:16:17] Speaker 02:
And if it reaches a conclusion that the benefits ought to be denied for some completely unrelated reason that the VA relied on, that's okay under harmless error.

[00:16:29] Speaker 05:
Your Honor, I think there are absolutely bounds to the harmless error analysis, but they were nowhere near what we get.

[00:16:37] Speaker 02:
OK, so you would agree with me.

[00:16:37] Speaker 02:
What I just said is just out of bounds.

[00:16:42] Speaker 02:
That cannot possibly be the law for harmless error.

[00:16:46] Speaker 05:
Your Honor, I think to the extent, Your Honor, that the Veterans Court is attempting to,

[00:16:57] Speaker 05:
apply raw, possibly contradictory medical data and, you know, perhaps create a diagnosis or something to that effect, I think that would certainly go beyond the bounds.

[00:17:10] Speaker 05:
But here, I would dispute that there was any fact-finding done.

[00:17:14] Speaker 02:
Okay.

[00:17:14] Speaker 02:
Well, where is the boundary finally?

[00:17:16] Speaker 02:
You led off by declaring that

[00:17:20] Speaker 02:
the scope of the harmless error inquiry is very broad.

[00:17:24] Speaker 02:
And well, I would like to know where you really think the hard bounded line is drawn.

[00:17:34] Speaker 05:
Your Honor, I think it is necessarily something of a fluid boundary.

[00:17:40] Speaker 05:
And I think that's borne out by the application both in this court and in other circuit courts of the APA

[00:17:50] Speaker 05:
harmless error standard.

[00:17:52] Speaker 05:
In some instances, the requirement is that it be clear to the reviewing body that the same result would have been affected.

[00:18:06] Speaker 05:
I think in this instance, Your Honor, there is a clear application of facts that are

[00:18:18] Speaker 05:
obvious and uncontested from the record and frankly from the board's opinion itself to the exact same question that the board itself was considering and that was whether or not the Mr. Tadlock's conditions constituted a MUCMI based on the exact same statute, the exact same language that the board was considering and that Mr. Tadlock was bound to demonstrate.

[00:18:45] Speaker 02:
Let's move to the moment.

[00:18:47] Speaker 02:
Let's assume for the moment that this court, in its review of the board's decision, concludes that there's just no question that the board turned a complete blind eye to this question of whether Mr. Tadlock was suffering from overlapping symptoms and signs.

[00:19:09] Speaker 02:
That that wasn't the focus at all of the VA and all of its instructions

[00:19:16] Speaker 02:
for medical examinations to be conducted and what the medical examiners focused on and what the board focused on.

[00:19:22] Speaker 02:
Nobody was focusing on that.

[00:19:23] Speaker 02:
Everybody else was focusing on whether this is a medically explained condition of pulmonary embolism and whether there was a specific etiology related to Mr. Tadlock's pulmonary embolism.

[00:19:37] Speaker 02:
And nothing to do with this multi-symptom question.

[00:19:43] Speaker 02:
Would it be okay under those circumstances in your view for the Veterans Court to say, well, I'm going to conduct my own review here and when I look at everything in this record as it stands, as it's been developed, really for other purposes so far, I don't see anything here that clearly convinces me, the Veterans Court, that there was in fact a multi-symptom situation here for Mr. Tadlock.

[00:20:08] Speaker 02:
So I'm going to affirm the denial for that particular reason.

[00:20:12] Speaker 02:
Would that be an appropriate use of the prejudicial error rule?

[00:20:20] Speaker 05:
Your Honor, I think it could be even under that situation.

[00:20:24] Speaker 05:
Why?

[00:20:27] Speaker 05:
What Mr. Tadlock highlighted as a problem with an expansive harmless error doctrine is that this

[00:20:38] Speaker 05:
problem of fair notice or the concern that the veteran is unaware of the elements that he isn't expected to address.

[00:20:48] Speaker 05:
Here, it has been clear from the beginning that what Mr. Tadlock is attempting to do is demonstrate that he is suffering from a MUCMI, which is defined by this statute.

[00:20:59] Speaker 05:
And all of the elements of the MUCMI are

[00:21:04] Speaker 05:
delineated in this statute.

[00:21:06] Speaker 05:
He was aware, the VA is aware of what that definition is and the various parts of it.

[00:21:15] Speaker 05:
So I think, you know, the record necessarily would be developed with the expectation that those are in mind.

[00:21:25] Speaker 05:
And so to the extent that the board then reviews that record that was developed to demonstrate a MUCMI and can say, look, there is

[00:21:33] Speaker 05:
absolutely no either evidence or frankly even allegation here that there is some other symptom that should be considered beyond the pulmonary embolism.

[00:21:45] Speaker 05:
That clearly has that element of multiple signs and symptoms within the statute that everyone was considering has not been met.

[00:21:54] Speaker 02:
So even though it wasn't at all the focus of the board's decision, even though it wasn't the focus at all of

[00:22:02] Speaker 02:
all of those instructions to do multiple medical examinations.

[00:22:10] Speaker 02:
It's still okay for the Veterans Court to pull this trigger.

[00:22:15] Speaker 05:
I want to ensure that we're talking about a hypothetical situation.

[00:22:19] Speaker 02:
I'm talking about a hypothetical for now, but maybe secretly.

[00:22:23] Speaker 02:
I also think it reflects that case.

[00:22:25] Speaker 02:
But let's just say for hypothetical purposes.

[00:22:29] Speaker 05:
I mean, to the extent that

[00:22:33] Speaker 05:
Yes, Your Honor.

[00:22:35] Speaker 05:
Frankly, I think that in that situation where we are still, to use Mr. Hennessy's phrase, talking about a single issue, which is whether or not the veteran has demonstrated a MUCMI and that there is a developed record to that question, even if the board itself fails to address that question,

[00:23:03] Speaker 05:
I think, at least potentially, it is within the harmless error purview of the Veterans Court to look to see if that question has an obvious answer.

[00:23:18] Speaker 01:
In the context... This is Judge Lidd.

[00:23:21] Speaker 01:
Yes, sir.

[00:23:22] Speaker 01:
Are you saying that whether the Veterans Court properly can

[00:23:29] Speaker 01:
use a prejudicial error analysis without violating Chenery depends on the extent to which the factual record is fully developed by the board?

[00:23:44] Speaker 05:
I think that's sort of a way of looking at it, Your Honor.

[00:23:50] Speaker 05:
I think, again, the question has to be whether the Veterans Court

[00:23:56] Speaker 05:
upon review of the record can determine for itself that the outcome is essentially inevitable.

[00:24:06] Speaker 01:
Let's be precise.

[00:24:09] Speaker 01:
We're talking about who is going to do the fact-finding and whether it is appropriate for the Veterans Court to be doing fact-finding.

[00:24:19] Speaker 01:
And I think we would both readily agree that that's not appropriate.

[00:24:24] Speaker 01:
So then the question is, well, when is it appropriate for the Veterans Court to use this prejudicial error analysis to perhaps conclude on a different basis that the same ruling would apply but without making a fact-finding?

[00:24:48] Speaker 01:
And I think we're both in agreement that it basically turns on whether the

[00:24:53] Speaker 01:
the record has been fully developed and the fact-finding has been done by the board.

[00:25:02] Speaker 05:
I think I would agree with that, Your Honor.

[00:25:03] Speaker 05:
I think that the question becomes whether the Veterans Court can make a determination that there is no essentially a factual whole or some

[00:25:17] Speaker 05:
some aspect of the question that is disputed or that requires more detail, perhaps another medical opinion, as I think was the case in Hensley.

[00:25:31] Speaker 01:
The Veterans Court could come to a different conclusion based on a different ground, provided that the factual record fully supports that.

[00:25:44] Speaker 01:
Yes, Your Honor.

[00:25:45] Speaker 05:
I think that's exactly what we're saying, and I think that's what this court was saying in Newhouse in acknowledging the entire record.

[00:25:55] Speaker 01:
I would agree, but the problem as I see it is that I don't think that's this case because I think the Veterans Court found itself without a fully developed record and made some fact findings of its own.

[00:26:14] Speaker 01:
So I'm having trouble with that.

[00:26:17] Speaker 05:
Understood, Your Honor.

[00:26:18] Speaker 05:
And I would encourage the court, probably near the end of my time, but I would encourage the court to review the board's decision.

[00:26:26] Speaker 05:
This is at the record pages 89 through, I think, about 102 or so.

[00:26:34] Speaker 05:
The board clearly asked all of the medical experts,

[00:26:43] Speaker 05:
certainly the third 2017 medical expert that it relied upon most heavily, about the existence or the likely existence of an unexplained multi-symptom illness that could be, that the pulmonary embolism could be a symptom of.

[00:27:01] Speaker 05:
The 2017 medical opinion thoroughly reviews all of Mr. Tadlock's both

[00:27:12] Speaker 05:
symptoms and argument that the pulmonary embolism itself was the source of or derived from some, I think, hypercoagulation disorder is his theory and discusses that likelihood and why.

[00:27:28] Speaker 05:
It certainly discusses the etiology of pulmonary embolisms and etiology is a really key question in this statute that provides relief for certain mukhmes.

[00:27:42] Speaker 05:
And then the board itself goes on to fully adopt that opinion to address Mr. Tadlock's theory, again, that there's some underlying hypercoagulation disorder that caused his pulmonary embolism.

[00:28:09] Speaker 05:
accredits the board or the examiner's findings that there are certain risk factors that Mr. Tadlock exhibited, that there, you know, the fact, the real issue that, or the reason that Mr. Tadlock believes that this is an unexplained illness is because there was never a conclusion as to where the blood clot that caused the pulmonary embolism

[00:28:39] Speaker 05:
originated and the medical opinion.

[00:28:41] Speaker 02:
Council, we are running out of time.

[00:28:43] Speaker 02:
Yes, Your Honor.

[00:28:44] Speaker 02:
I've been patiently listening to you for the past two minutes, but I didn't hear you focus on anything in the board opinion that relates to anything where we could say, aha, here's the board saying that Mr. Tadlock lacks a multi-symptom situation with overlapping symptoms and signs.

[00:29:08] Speaker 05:
I think that the first part of that, the multi-symptom situation is explicitly addressed.

[00:29:15] Speaker 05:
The board did ask the examiners to consider whether or not there was an underlying unexplainable multi-symptom illness and the examiner did address that.

[00:29:26] Speaker 05:
I agree and I think this is where the Veterans Court got caught up that there is not a final conclusory sentence saying and also this

[00:29:38] Speaker 02:
Okay, so before you go, can you try to identify what's the right way or what's the right framework to articulate in understanding how the prejudicial error rule coexists with the Chenery doctrine?

[00:29:56] Speaker 02:
Like what is the right scope of the application of this prejudicial error rule that does not violate Chenery?

[00:30:05] Speaker 05:
I'll certainly try, Your Honor, and I think

[00:30:07] Speaker 05:
that in my discussions with Judge Lynn, the critical, I think it does to some extent come down to this question of fact finding versus application of facts.

[00:30:20] Speaker 05:
So I would agree that the Veterans Court, sorry if I may finish the final thought.

[00:30:28] Speaker 02:
Sure.

[00:30:30] Speaker 05:
The Veterans Court is not the appropriate body to be making in the first instance

[00:30:36] Speaker 05:
determinations about medical conditions about whether or not, you know, a pulmonary embolism is diagnosed, for example, but to the extent that there is no identified hole, for lack of a better way to put it, in the factual record that the Veterans Court is within its harmless error purview

[00:31:05] Speaker 05:
to review the existing facts and to try to ascertain whether or not, based on the existing facts within the entirety of the record, it is clear that a different decision would have been reached.

[00:31:21] Speaker 05:
And I understand I'm out of time.

[00:31:22] Speaker 05:
Thank you very much for the indulgence.

[00:31:25] Speaker 00:
Well, let's see, Judge Jen, do you want to pursue this any further?

[00:31:28] Speaker 02:
No, that's OK.

[00:31:30] Speaker 02:
Thank you.

[00:31:31] Speaker 00:
OK, does anyone have any more questions for Ms.

[00:31:33] Speaker 00:
Biesak?

[00:31:34] Speaker 01:
No, thank you.

[00:31:36] Speaker 00:
All right.

[00:31:36] Speaker 00:
Thank you.

[00:31:37] Speaker 00:
In that case, rebuttal for Mr. Hannes.

[00:31:40] Speaker 04:
Please excuse the interruption, Judge Newman.

[00:31:42] Speaker 04:
Mr. Hannes only has about 10 seconds left to rebuttal.

[00:31:45] Speaker 00:
Oh, no.

[00:31:46] Speaker 00:
You have your full rebuttal time.

[00:31:51] Speaker 03:
Sounds good.

[00:31:51] Speaker 03:
Thank you, Judge Newman.

[00:31:52] Speaker 03:
Just a couple of quick points.

[00:31:54] Speaker 03:
I would first like to just start on the factual record.

[00:31:58] Speaker 03:
Neither before the board nor in the medical opinion,

[00:32:02] Speaker 03:
with the issue of overlapping crimes and symptoms of focus whatsoever you know this case mirrors henley or mayfield where the factual record at this point uh... is not well-developed enough for the veterans court to you know reaches and you know there is a hole in the factual record and even if there wasn't it still requires weighing the medical evidence to make a determination on them uh... and

[00:32:30] Speaker 03:
The second thing I want to say is that, you know, Judge Chen, your question is about if the board found one symptom, you know, would that be enough for the Veterans Court to affirm?

[00:32:41] Speaker 03:
And I would just like to point the court to 60 Fedreg6660.

[00:32:49] Speaker 03:
in which the VA opined that a single symptom or sign may be sufficient in certain circumstances to establish entitlement under section 3.317.

[00:33:00] Speaker 03:
So that's just another reason that this record is not ripe for reaching this issue.

[00:33:09] Speaker 03:
It needs to go to the original fact finder, the board.

[00:33:13] Speaker 02:
One last question.

[00:33:14] Speaker 02:
I think we have said that

[00:33:17] Speaker 02:
under limited circumstances, the Veterans Court may do some fact-finding, is that right?

[00:33:26] Speaker 03:
Within the context of its harmless air analysis?

[00:33:30] Speaker 03:
Right.

[00:33:32] Speaker 03:
Yes, the board, excuse me, the Veterans Court can certainly do some fact-finding related to harmless air, but this Court has also established that there are limits on that fact-finding that it can do.

[00:33:46] Speaker 03:
And how would you articulate those limits?

[00:33:50] Speaker 03:
That if the if the Veterans Court goes outside the facts found by the board, that it then has violated those limits.

[00:34:00] Speaker 03:
And I think, you know, if you look at this court, isn't that the very nature of fact finding?

[00:34:06] Speaker 03:
It is, but it's not when it's on an entirely different ground that the board hadn't considered.

[00:34:10] Speaker 03:
So that's the same thing with the you have to be the Veterans Court at least has to be driving

[00:34:16] Speaker 03:
within the same lane that the board decided the case but in this case the veterans court you know took an exit and went about a hundred miles down the road to uh... reach a question kind of out of thin air that the parties hadn't briefed and was never... I don't think we can write an opinion and talk about lanes and exits and freeways I understand but I mean I think I mean this court you know we're just asking the court to apply it's you know

[00:34:44] Speaker 03:
the precedent in Hensley, Mayfield, and Winters.

[00:34:46] Speaker 03:
And in Mayfield, the Veterans Court decided an entirely different ground that the board had not considered.

[00:34:55] Speaker 03:
In Winters, the board was not concerned with the particular ground, so this court vacated.

[00:35:00] Speaker 03:
And in Hensley, same thing.

[00:35:01] Speaker 03:
There's not a sufficient factual record, so the Veterans Court could not decide those facts in the first instance.

[00:35:10] Speaker 03:
Unless there are any questions, thank you.

[00:35:12] Speaker 00:
Any more questions for Mr. Hennis?

[00:35:15] Speaker 03:
No.

[00:35:16] Speaker 03:
Thank you.

[00:35:16] Speaker 03:
No.

[00:35:17] Speaker 00:
Okay.

[00:35:18] Speaker 00:
Thanks to both counsel.

[00:35:20] Speaker 00:
This case is taken under submission.