[00:00:00] Speaker 03:
Okay, we'll now hear argument in appeal number 20-2170, Wyndham versus McDonough.

[00:00:09] Speaker 03:
Mr. Maron, please go ahead.

[00:00:13] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
Your Honors, the Veterans Court found that the board's failure to address a report of symptoms that contradicted the 2010 VA examiner's opinion was harmless error

[00:00:28] Speaker 01:
because the record did not contain competent evidence of a nexus to military service.

[00:00:34] Speaker 01:
However, this harmless error determination rested upon the wrong legal standard.

[00:00:41] Speaker 01:
Because once the board was on notice that the 2010 examination may have been inadequate, VA had a statutory obligation to provide a new and adequate examination.

[00:00:55] Speaker 01:
The veterans... Mr. Mayor, can I just... Mr. Mayor, can I stop you there?

[00:01:00] Speaker 04:
I mean, it seems to me you've raised a good point that they should have given Mr. Wyndham a new examination, but I'm a little unclear about how you raised that to the Veterans Court.

[00:01:17] Speaker 04:
You know, I have your briefs or at least portions of your briefs to the Veterans Court, and it doesn't seem like you raised an argument that suggests

[00:01:26] Speaker 04:
the VA failed in its duty to assist by providing a medical examination, you argued a reasons and bases appeal instead.

[00:01:36] Speaker 04:
Can you point to me anywhere in your briefs to the Veterans Court where you specifically told them that you thought that the examination, that they had, did not have a sufficient medical examination and it violated the duty to assist?

[00:01:52] Speaker 01:
Yes, Your Honor.

[00:01:54] Speaker 01:
From our principal brief, that would have been at appendix pages 82 and 83.

[00:02:04] Speaker 01:
These are also quoted if the court prefers to refer there at page four of our reply brief before this court.

[00:02:15] Speaker 01:
On these pages of the principal brief, we pointed out that the board

[00:02:21] Speaker 01:
failed to adequately explain its reliance on the examiner's opinion despite evidence that the examiner's explanation for fatigue, that it was due to day shift work, was contradicted by the veteran's subsequent report of symptoms.

[00:02:37] Speaker 01:
We reiterated that on the next page of that argument.

[00:02:41] Speaker 01:
And in our reply brief before the Veterans Court again pointed out that the board... Mr. Merrin.

[00:02:51] Speaker 03:
I think Judge Cleverger has a question.

[00:02:54] Speaker 02:
Yes, I just knew it would be helpful if you could cite the page in the appendix which you're referring so we can see the exact language.

[00:03:05] Speaker 01:
Yes, I'm sorry, Your Honor.

[00:03:08] Speaker 01:
The pertinent pages of the principal brief are appendix pages 80 where we pointed out that the board failed to

[00:03:20] Speaker 01:
adequately explain its reliance on the examiner's opinion despite the veteran's subsequent statement that fatigue persisted after he stopped working on the night shift.

[00:03:32] Speaker 01:
Later in the principal brief, this is at appendix pages 82 and 83, we pointed out that the board provided no reasons or basis for finding the examiner's opinion was adequate

[00:03:45] Speaker 01:
despite the question as to the adequacy of that opinion raised on the record.

[00:03:53] Speaker 01:
Continuing on to the reply brief.

[00:03:57] Speaker 03:
Mr. Maron, specifically which sentences on A82 are you quoting from?

[00:04:04] Speaker 03:
I can't find them.

[00:04:07] Speaker 01:
Of course.

[00:04:07] Speaker 01:
I'm sorry.

[00:04:08] Speaker 01:
Let me, with the court's brief indulgence,

[00:04:26] Speaker 04:
I mean, Mr. Marion, your problem is you're talking about the VA examiner's opinion.

[00:04:32] Speaker 04:
None of this addresses the adequacy of the medical opinion, and that because of this new factual evidence, they should have ordered a new medical opinion.

[00:04:46] Speaker 04:
I don't see anywhere in this as calling specifically that the Veterans Court should have ordered a remand

[00:04:55] Speaker 04:
for the VA to supply a new medical opinion.

[00:04:58] Speaker 04:
You're attacking the reasons and basins for the examiner's opinion.

[00:05:04] Speaker 01:
Your Honor, under the Veterans Court's precedence, particularly Barveen Nicholson, if the examination is inadequate, I beg your pardon, once VA has determined that a medical opinion is necessary

[00:05:23] Speaker 01:
If that opinion is inadequate, that does trigger VA's obligation to obtain that new examination.

[00:05:33] Speaker 04:
In other words, Your Honor... Absolutely, Mr. Marron, absolutely.

[00:05:36] Speaker 04:
You are right.

[00:05:37] Speaker 04:
But where did you argue to the Veterans Court that the VA's decision was error because that duty was triggered and they failed to give the new medical examination?

[00:05:50] Speaker 04:
It's not in your brief to the Veterans Court.

[00:05:52] Speaker 04:
I don't understand how you can expect the Veterans Court to remand for a new medical examination when you didn't ask for them to do that.

[00:06:06] Speaker 01:
To be clear, we asked them to remand for the board to address that

[00:06:16] Speaker 01:
the Veterans 2012 statement, which called the adequacy of that examination into question.

[00:06:24] Speaker 01:
And on remand, the board may well have hypothetically articulated a statement of reasons or bases for determining that a new examination was not necessary.

[00:06:38] Speaker 04:
But you're still asking the Veterans Court to infer that you're attacking the sufficiency of the medical examination without

[00:06:46] Speaker 04:
actually making an assignment of their own appeal?

[00:06:49] Speaker 04:
Is there something that would have prevented you from putting in your brief a section that said the VA violated its duty to assist because a new medical examination was warranted here?

[00:07:00] Speaker 04:
I mean, if you would have put that in, you would have probably gotten an agreed upon remand from the secretary.

[00:07:06] Speaker 04:
I just fail to understand how you're asking the board

[00:07:11] Speaker 04:
to conjure up an argument that you're now making to us for essentially the first time on appeal?

[00:07:21] Speaker 01:
Your Honor, insofar as the briefs before the Veterans Court expressly stated that the Veterans 2012 statement

[00:07:39] Speaker 01:
raised the inadequacy of the examiner's opinion and the also argued in front of the Veterans Court that the Board had failed to address that statement, which the Veterans Court agreed had happened, that was clearly stating, a clear articulation that the

[00:08:04] Speaker 01:
board has failed to address evidence that the medical opinion of record was inadequate.

[00:08:10] Speaker 01:
As we expressly stated in our principal brief at appendix pages 82 through 83, the board provided no reasons or bases for finding that the June 2010 examiner's opinion was adequate despite the question as to the adequacy of that opinion raised on the record.

[00:08:28] Speaker 01:
And the critical point here, Your Honor, is that the proof

[00:08:33] Speaker 01:
this was raised before the court is that the dissent expressly discussed this point.

[00:08:40] Speaker 04:
The dissent... I don't understand that.

[00:08:42] Speaker 04:
Mr. Marin, I don't understand that argument at all.

[00:08:44] Speaker 04:
Just because the dissenting judge knows this well enough to raise an argument that you should have raised doesn't mean you raised it.

[00:08:53] Speaker 04:
You still haven't cited, and I don't think there is anything, you haven't cited a sentence in this brief that says the VA failed

[00:09:01] Speaker 04:
in its duty to assist by ordering a new medical examination.

[00:09:05] Speaker 04:
And by the way, have you done anything else back at the RO or the board to try to reopen this and get a new medical opinion?

[00:09:14] Speaker 04:
Because probably you're not barred from doing that.

[00:09:18] Speaker 01:
Your Honour, with regard to filing a new claim, a claim for reopening, which would be required to do that,

[00:09:30] Speaker 01:
The prejudice there is that it would not preserve the effective date of benefits.

[00:09:37] Speaker 04:
I understand that it wouldn't preserve the effective date, but assuming you're going to lose here, have you done anything to at least attempt to reopen this claim now and raise the proper arguments?

[00:09:50] Speaker 01:
Your Honor, I don't believe offhand that we have filed a claim to reopen.

[00:09:59] Speaker 01:
However, Your Honor, I see my time has nearly elapsed.

[00:10:09] Speaker 01:
I beg your pardon.

[00:10:10] Speaker 01:
I would also note that the veteran has other fuels still pending in front of VA, which we are continuing to pursue for other claims.

[00:10:27] Speaker 01:
Your Honor,

[00:10:28] Speaker 01:
With regard to Judge Peech's dissent, the salient point is she did not merely observe this issue about the duty to assist, but that the veterans briefs had in fact raised this point, as they did by invoking the adequacy of that, noting that the veteran's statement had invoked the adequacy of that 2010 examination.

[00:10:55] Speaker 01:
Your Honors, I see I have

[00:10:58] Speaker 01:
entered into the rebuttal time.

[00:11:02] Speaker 01:
If the court has any further questions presently, I'm happy to answer them.

[00:11:06] Speaker 01:
If not, may I leave it there for the moment?

[00:11:11] Speaker 03:
Yes, sure thing.

[00:11:12] Speaker 03:
Let's hear from the government now.

[00:11:14] Speaker 03:
Mr. Cho?

[00:11:15] Speaker 00:
Mr. Honor, may I please report?

[00:11:17] Speaker 00:
So on the issue of the waiver that was just discussed extensively, we have only a couple of things to say.

[00:11:25] Speaker 00:
First of all, I think the question should be

[00:11:28] Speaker 00:
Did Mr. Winham raise an argument that a new examination is required?

[00:11:34] Speaker 00:
I understand that we don't necessarily have to put specific legal labels on our arguments all the time.

[00:11:39] Speaker 00:
But really, essentially, the long and short of it is that Mr. Winham is asking before this court that the new examination should have been ordered.

[00:11:50] Speaker 00:
But in the brief submitted for the lower court, we do not see an argument

[00:11:57] Speaker 00:
that a new exemption was required due to the duty to assist.

[00:12:02] Speaker 00:
We do have some, well, just all these statements and they were cited, kind of fall short of that.

[00:12:07] Speaker 00:
And also, Your Honor, I'd like to point out that the veteran himself said, if you look into, if you take into account the veteran statement on page 39 of the appendix, he says,

[00:12:22] Speaker 00:
First, I don't know how it would be medically possible to distinguish where exactly my fatigue was coming from, given the constraints of the C&P examination.

[00:12:30] Speaker 00:
Now, on top of just the legal issue, we have the veteran himself saying, let me just back up and just start there from the beginning.

[00:12:41] Speaker 00:
During the examination, the veteran himself attributes his condition to his job.

[00:12:48] Speaker 00:
And he says, my fatigue began two to four years before

[00:12:52] Speaker 00:
this examination, and that's on page 36 to 37.

[00:12:56] Speaker 04:
Mr. Cho, this is Judge Hughes.

[00:12:58] Speaker 04:
Just wanted to stop you here.

[00:12:59] Speaker 04:
I understand you have a lot of jurisdictional procedural objections to this case.

[00:13:04] Speaker 04:
Right.

[00:13:05] Speaker 04:
And you may very well prevail because of those.

[00:13:09] Speaker 04:
But let's just go back to the board and the original medical opinion, assuming it relied largely on the fact that he worked the night shift for the finding, that that was the cause of his alleged disability,

[00:13:22] Speaker 04:
not service connection.

[00:13:24] Speaker 04:
Once the factual predicate for that was no longer valid, why wasn't a new medical exam required?

[00:13:33] Speaker 00:
Yes, Your Honor, we absolutely accept the principle stated in the second juror's opinion that there will be situations where, you know, new facts arise

[00:13:48] Speaker 00:
And in some situations, the new facts can warrant a new examination simply because at the end of the day, we were required to give the veteran an opportunity to litigate his claim.

[00:14:04] Speaker 00:
And also, we have provided adequate medical opinion.

[00:14:07] Speaker 00:
But however, there's one step before we order a new examination, there's one step of assessing

[00:14:15] Speaker 00:
the veteran's credibility, and that is what the VA is entitled to do, and also the VA has a responsibility to do, and that is a lesson from this court's decision from Waters.

[00:14:26] Speaker 00:
Once we have, as this court has said in Waters in 2010, the VA is entitled to give whatever the weight it is going to give to the veteran's conclusively statement.

[00:14:39] Speaker 00:
Now, we have a somewhat unusual statement from the veteran.

[00:14:43] Speaker 04:
Let me make it simple, though, Mr. Cho.

[00:14:45] Speaker 04:
Yep.

[00:14:45] Speaker 04:
And that's a hypothetical.

[00:14:47] Speaker 04:
Let's assume that the prior medical opinion in this case found the veteran's statement about his sleep disturbance credible and found his allegations about his service credible.

[00:15:01] Speaker 04:
But the sole basis it found to not award service connection was that it was more likely it was connected to his

[00:15:09] Speaker 04:
night work rather than service.

[00:15:12] Speaker 04:
Nothing else.

[00:15:13] Speaker 04:
There's no other reason that the medical examination found that he wasn't entitled to service connection.

[00:15:20] Speaker 04:
Once that actual predicament goes away, doesn't that medical examination become insufficient to adjudicate this case?

[00:15:29] Speaker 00:
Your Honor, in your hypothetical that is correct, if the only fact that was relied upon for a medical examination and that fact changes,

[00:15:39] Speaker 00:
then it would be appropriate if nothing else, assuming nothing else, it would be appropriate to provide a second medical examination.

[00:15:50] Speaker 00:
However, as your honor may already know, there are other things as well, such as the veteran stating that his fatigue began.

[00:16:00] Speaker 04:
Sure.

[00:16:01] Speaker 04:
I think that there are additional facts here.

[00:16:04] Speaker 04:
Those are facts that are

[00:16:05] Speaker 04:
probably best explored by the board when this argument is appropriately raised.

[00:16:12] Speaker 04:
But it seems to be that the board's opinion here did rely largely on the NUTS service.

[00:16:18] Speaker 04:
And you agree that that's no longer a valid reason to deny service connection alone.

[00:16:26] Speaker 00:
Yes, Your Honor.

[00:16:27] Speaker 00:
But I want to be very careful here on exactly what the medical opinion relied upon.

[00:16:35] Speaker 00:
Because it seems to me... Well, it seems to us, Your Honor, at least from the dissenting opinion, it was not... We have been accused of just relying on a very simple couple of facts, but I think there are more... The medical opinion at issue here is more nuanced than that.

[00:16:54] Speaker 00:
The medical opinion takes into account the fact that the fatigue began three to four years before the examination.

[00:17:04] Speaker 00:
And he himself disavows that he has chronic fatigue.

[00:17:09] Speaker 00:
And he himself says, you know, I think it's because of my bus driver job.

[00:17:16] Speaker 00:
Now, in that situation, couple that with his new statement saying that, you know, I don't think it could be disproven, or he doesn't say exactly in the term, but he says along the lines of, I don't think that my claim could be disproven because of biomedical examination.

[00:17:32] Speaker 00:
In that scenario,

[00:17:35] Speaker 00:
These facts, it does not appear that the veteran himself is interested in getting a medical examination or any medical examination is necessary.

[00:17:46] Speaker 00:
In this scenario, somewhat of an unusual fact, we expect to meet that the VA was not required to arrange a medical examination when he was not asked for.

[00:18:03] Speaker 00:
We have spoken in length about how the Unham with counsel did not raise a new medical examination argument.

[00:18:15] Speaker 00:
But what we're trying to clarify here is that even before you got counsel, Mr. Unham's own statements does not appear to be... It is really not a fair statement that this

[00:18:31] Speaker 00:
He is showing interest in correcting an earlier statement, but it appears more of recanting a prior statement.

[00:18:48] Speaker 00:
in addition to his position that medical examination cannot be used to.

[00:18:55] Speaker 02:
What case can you cite that tells us that what you've just been talking about is of any relevance whatsoever?

[00:19:01] Speaker 02:
The state of mind of the veteran.

[00:19:07] Speaker 02:
Cite me a case why we should pay any attention to that in the way you're arguing it.

[00:19:13] Speaker 00:
Yes, sir.

[00:19:16] Speaker 00:
To be clear, I do not mean to suggest that Mr. Winham is a liar or... It's not my question.

[00:19:24] Speaker 00:
Yes, sir.

[00:19:25] Speaker 00:
The answer to your question, Your Honor, is a water.

[00:19:28] Speaker 02:
Yes.

[00:19:29] Speaker 02:
I've been listening to you carefully for the last seven or eight minutes, and I haven't heard you say anything of any significance other than that there is a waiver here of the duty to assist.

[00:19:42] Speaker 02:
What else do you have to add to tell us why we should affirm

[00:19:46] Speaker 02:
other than the fact that the duty to assist the requirement under 51038 to provide an exam, that that argument wasn't preserved.

[00:19:57] Speaker 00:
Yes, sir.

[00:19:59] Speaker 00:
This court has explained in waters that even though there is a duty to assist, the VA is entitled to weight the credibility and decide how much weight

[00:20:15] Speaker 00:
the VA is going to give to the veteran's statement.

[00:20:19] Speaker 02:
Yes, yes.

[00:20:20] Speaker 02:
And that's, as in water, that suggests a process.

[00:20:24] Speaker 02:
Right.

[00:20:26] Speaker 02:
The agency has considered those issues and that hasn't happened in this case.

[00:20:32] Speaker 00:
Your Honor, respectfully, I submit that the board did in fact weigh Mr. Winnan's credibility on page 71.

[00:20:42] Speaker 00:
The board does give less than, well, the board notes that he is contradicting his prior statements.

[00:20:52] Speaker 02:
How do you waive when you give, when you say someone is not competent to testify?

[00:20:58] Speaker 02:
That isn't weighing, that's excluded.

[00:21:03] Speaker 00:
Yes, sir.

[00:21:04] Speaker 00:
I recognize that the language that the,

[00:21:09] Speaker 00:
the language which this court has found problematic in quarantine.

[00:21:15] Speaker 00:
But I respectfully submit that this board's rationale contains more than just that language.

[00:21:23] Speaker 00:
It is more of an alternative.

[00:21:26] Speaker 02:
You like to talk in generalities.

[00:21:29] Speaker 02:
Tell me some language.

[00:21:31] Speaker 02:
Cite me a page in the record and give me a line or give me a quotation.

[00:21:37] Speaker 00:
to support what you're saying, please.

[00:21:39] Speaker 00:
Yes, Your Honor.

[00:21:40] Speaker 00:
On page 71 of the appendix.

[00:21:42] Speaker 02:
Yes.

[00:21:43] Speaker 02:
Thank you.

[00:21:45] Speaker 00:
The veteran service treatment records do not recite complaints, treatment, or diagnosis of fatigue in service.

[00:21:53] Speaker 00:
And later in the paragraph, it says, moreover, the veteran has not reported

[00:22:02] Speaker 00:
having chronic fatigue symptoms since service.

[00:22:05] Speaker 00:
And as noted in the June 10th, the VA examination addendum, he reported that the fatigue occurred within past three to four years and attributed this to his occupation, in his own words.

[00:22:17] Speaker 00:
And there's a statement that ends the paragraph saying that these statements directly contradict his claim that his fatigue is related to service.

[00:22:27] Speaker 00:
So this is not, Your Honor, respectfully, this is not a case in which the VA has

[00:22:32] Speaker 00:
has rejected the veteran's statement wholesale, just giving a label that because you're a layperson, you cannot provide any sort of evidence on the subject.

[00:22:44] Speaker 00:
The board does use that language that has been challenged.

[00:22:48] Speaker 00:
But in addition to that, there is some weighing of evidence and credibility assessment in this paragraph, Your Honor.

[00:22:57] Speaker 00:
Your Honor, I'm mindful of your time.

[00:22:58] Speaker 00:
And unless the panel has any more questions,

[00:23:02] Speaker 00:
We would request that we rest on our brief and especially request that the court dismiss this case for legal assistance or alternatively affirm the little court's opinion.

[00:23:17] Speaker 03:
Okay.

[00:23:18] Speaker 03:
Thank you, Mr. Cho.

[00:23:19] Speaker 03:
Let's hear some rebuttal from Mr. Marin.

[00:23:22] Speaker 03:
I believe you have some rebuttal time still remaining.

[00:23:24] Speaker 03:
Go ahead.

[00:23:26] Speaker 01:
Thank you, Your Honor.

[00:23:29] Speaker 01:
First, just to very briefly emphasize,

[00:23:32] Speaker 01:
The board is required by statute to provide an adequate statement of reasons or basis for all portions of its determination, including whether VA has satisfied its duty to assist.

[00:23:49] Speaker 01:
Here, the board decision on appeal not only didn't address the veterans September 2012 statement or include any of the analysis discussed in Waters,

[00:23:59] Speaker 01:
It didn't even address the duty to assist at all.

[00:24:04] Speaker 01:
We would also emphasize that per Emanacher that because the board is required to provide an adequate statement of reasons or bases regarding the duty to assist, and we emphasized that the board hadn't addressed evidence, the duty to assist hadn't been satisfied,

[00:24:27] Speaker 01:
The court was on note, the Veterans Court was on notice of the substance of this matter.

[00:24:34] Speaker 01:
And that's, in our view, suffice to place that duty to assist question before it.

[00:24:43] Speaker 01:
With regard to the, I beg the court's indulgence, one moment, sorry.

[00:24:56] Speaker 01:
Beyond that point, Your Honor, we would emphasize that the court has it right that when the factual predicate of the examination is called into question, that does, in fact, trigger today's duty to provide a new examination precisely because those different facts

[00:25:25] Speaker 01:
call the adequacy of that exam into question.

[00:25:30] Speaker 01:
Unless there are any further questions from the court, we would urge the court to order remand for the Veterans Court to fully assess the questions raised before it.

[00:25:54] Speaker 01:
and in particular assess whether the board's failure to address the 2012 statement rendered its implicit determination regarding the duty to assist inadequately reasoned.

[00:26:14] Speaker 01:
If there are no further questions from the court, I would thank you very much for your time.

[00:26:24] Speaker 01:
Thank you very much.

[00:26:28] Speaker 03:
Okay.

[00:26:29] Speaker 03:
Thank you, Mr. Maron.

[00:26:31] Speaker 03:
The court thanks both counsel.

[00:26:33] Speaker 03:
The case is submitted.