[00:00:01] Speaker 04:
We will hear argument in number 21, 1210, Alaniz versus McDonough.

[00:00:11] Speaker 04:
Mr. Dojakes, please begin when you're ready.

[00:00:18] Speaker 03:
Yes, thank you, Your Honor, and may it please the Court.

[00:00:21] Speaker 03:
On behalf of Appellant, I do want to thank the Court for this opportunity to present his appeal.

[00:00:26] Speaker 03:
This appeal concerns one issue.

[00:00:28] Speaker 03:
How does the Veterans Court make a determination under 7261B2 that an error is prejudicial?

[00:00:36] Speaker 03:
More specifically, we're asking this court to answer two questions.

[00:00:40] Speaker 03:
Do some errors have the natural effect of producing prejudice, and if so, does this one?

[00:00:46] Speaker 03:
Or, if no error can have the natural effect of producing prejudice, under what framework should the Veterans Court assess prejudice?

[00:00:55] Speaker 03:
To date, there's not much guidance.

[00:00:57] Speaker 03:
In Tadlock, this court recently held that whenever reviewing harmless error, the Veterans Court cannot make de novo findings a fact.

[00:01:04] Speaker 03:
Under existing precedent, the court has primarily reviewed whether the Veterans Court must review for harmless error.

[00:01:11] Speaker 03:
And in Simmons, this court rejected the appellant's attempt to create a per se rule of prejudice in that case because it could lead to a finding of harm where under the totality of the record, no harm exists.

[00:01:24] Speaker 03:
And here we ask this court to find that some errors, in particular the one committed by the board, has the natural effect of producing prejudice.

[00:01:33] Speaker 03:
To understand why, we need to look at the specific error committed by the board.

[00:01:38] Speaker 03:
On page 12 of the appendix, we see quite clearly that the board erred by finding that a regulation 3.317 does not apply solely because his illness had a diagnosis.

[00:01:53] Speaker 03:
But pursuant to 38 USC 1117 and 3.317, Gulf War veterans, like the appellant, for Gulf War veterans, VA must pay compensation for any qualifying chronic disability.

[00:02:10] Speaker 03:
And the regulation defines that as one that is either undiagnosed or, as applies to this case, a multi-MUCMI.

[00:02:23] Speaker 03:
where either the etiology or cause or the pathophysiology of the illness is inconclusive.

[00:02:30] Speaker 03:
And this is the Veterans Court's ruling in Stuart V. Wilkie.

[00:02:36] Speaker 04:
The Veterans Court... Mr. DeHakos, this is Judge Taranto.

[00:02:41] Speaker 04:
Are you asking us to say that the Veterans Court has authority to

[00:02:53] Speaker 04:
create kind of natural effect of non-case specific rules, that that's the legal principle you want us to articulate, or do you want us to articulate a principle that under the regulation at issue here,

[00:03:13] Speaker 04:
there is a more categorical, not all factors, case by case, harmlessness rule that applies?

[00:03:26] Speaker 03:
Your Honor, I think both really.

[00:03:28] Speaker 03:
I think primarily what we're looking for is a ruling whether the Veterans Court can find some errors and actually produce prejudice.

[00:03:38] Speaker 03:
And as we talked about in our briefs,

[00:03:40] Speaker 03:
They've done that in Vogan, in Vasquez, Florida.

[00:03:44] Speaker 03:
They've identified these errors where they naturally produce prejudice.

[00:03:49] Speaker 04:
So just to continue this, so at the level of the legal proposition that the Veterans Court can recognize some errors as naturally producing

[00:04:06] Speaker 04:
prejudice without more case-specific inquiry, that principle is not actually in dispute.

[00:04:16] Speaker 04:
Because you said the Veterans Court has in fact recognized that principle by doing so in some context.

[00:04:24] Speaker 03:
Yes, Your Honor, that is true.

[00:04:28] Speaker 03:
in those two cases.

[00:04:29] Speaker 03:
And I would ask that, well, I think what we're asking for primarily is a confirmation from this court that that is appropriate, or more specifically, that in this case, by ruling that a regulation does not apply without assessing the two elements, the two separate elements, that it naturally produces prejudice.

[00:04:53] Speaker 03:
And those two cases in particular, and Tadlock,

[00:04:57] Speaker 03:
in a more general sense, kind of show us why that is so.

[00:05:01] Speaker 03:
Because the board still has more work to do.

[00:05:04] Speaker 03:
As we talked about in our brief, 3.103A requires the board to fully develop the claim before denying it.

[00:05:13] Speaker 03:
The duty to assist requires the board to attempt, make reasonable attempts to obtain evidence that is necessary to substantiate the claim.

[00:05:23] Speaker 03:
And by short-changing this, the board has essentially said,

[00:05:28] Speaker 03:
has shut off an entire category of legal authority for benefits for the appellant here without giving any information to the court or to the appellant as to whether there can be entitlement shown or, as the board said, because it's diagnosed, this regulation cannot apply.

[00:05:58] Speaker 04:
Well, what do you make of what, if I'm remembering right, you'll correct me if I'm not, the kind of Supreme Court, let's call it a warning that the Veterans Court being closer to a larger number of claim, Veterans Claims cases is much better positioned than our court is to,

[00:06:28] Speaker 04:
to do harmless error analysis and why would that not apply to making the veterans court rather than this court the right one to figure out context by context whether there ought to be something like natural effect categorical rule.

[00:06:54] Speaker 03:
Your Honor, I would respond by saying that the caution that you're referring to in Senseki v. Sanders was not a wholesale prohibition.

[00:07:07] Speaker 03:
It was more of a, I think, a statement that most of the time, the Veterans Court is better equipped, particularly when it's a very, a situation that is more

[00:07:24] Speaker 03:
dependent upon the specifics of veteran's disability benefits.

[00:07:29] Speaker 03:
But I think in this case, the type of error that was committed by excluding a statute for a legally erroneous reason, I'm sorry, a statute and a regulation, and not going through the process of making a determination, making findings a fact, that can never be, that's something that any court can find produces prejudice.

[00:07:53] Speaker 03:
or naturally produces prejudice.

[00:07:55] Speaker 03:
I don't think that this is one of those types of cases that is beyond the realm of any court.

[00:08:03] Speaker 04:
Just so I understand, I guess I'm remembering the lay of the land here to be something like the following, that the regulation at issue, let's say, has three requirements.

[00:08:16] Speaker 04:
The board may have gotten requirement number one wrong

[00:08:22] Speaker 04:
But the Veterans Court said it's perfectly plain that there's no evidence of either requirement two or three.

[00:08:29] Speaker 04:
Why is that not a easy case for lack of prejudice?

[00:08:37] Speaker 03:
Your Honor, the Veterans Court, to be clear, did not say that there is no evidence.

[00:08:42] Speaker 03:
They said simply that the appellant did not point to any evidence.

[00:08:46] Speaker 03:
And I would respond to that by saying that in

[00:08:51] Speaker 03:
particularly in Sanders and the case that it relied on quite heavily to code, sorry, code K codes.

[00:09:02] Speaker 03:
What they talked about there was that often it's very clear to the reviewing court that the error was harmful.

[00:09:12] Speaker 03:
And if that's the case, there's no obligation on the appellant to do anything.

[00:09:21] Speaker 03:
looking here for, but if the harm is not clear, and this is in Sanders on page 410, at 410, but if the harm is not clear or evident, then and only then does the appellant have the burden of explaining why the erroneous ruling caused harm.

[00:09:39] Speaker 03:
And so what I read that to say is that the court must first look to see is the error clear and evident based on what happened here.

[00:09:50] Speaker 03:
And I would submit that when an error naturally produces prejudice like this one does, then there's no obligation on the veteran or the, I'm sorry, the appellant to explain why it does because it's evident.

[00:10:14] Speaker 03:
And to get back to the point that you raised initially, Your Honor,

[00:10:17] Speaker 03:
So the error is that just to be very clear on what the board failed to do was that you can prove a presumption of benefits that whatever disability you're suffering from, the VA will presume that it was related to your service if it is undiagnosed, which doesn't apply here, or if the etiology is inconclusive or the pathophysiology is inconclusive.

[00:10:48] Speaker 03:
the board never reached that question.

[00:10:50] Speaker 03:
And in order for the court to then find that it's harmless, I would submit that that requires them to assume a fact had been made that neither of those have been proven.

[00:11:04] Speaker 03:
And again, circling back to Tadlock, the veterans court can't make findings of fact whether explicitly or inferred

[00:11:13] Speaker 03:
or presumed because that's left for the board.

[00:11:16] Speaker 03:
And that to me is the heart of this, the harm that exists in this error is that the veteran and the court never got the benefit of the agency's explanation for the facts.

[00:11:30] Speaker 03:
And more specifically, the veteran didn't get his, a fully developed claim before the board

[00:11:39] Speaker 03:
because we don't know whether there was more information out there that was needed.

[00:11:42] Speaker 03:
We don't know what facts the board would have found.

[00:11:45] Speaker 03:
And again, to reiterate, the court is assuming that these facts were not in his favor.

[00:11:53] Speaker 01:
Counsel, earlier you mentioned the Simmons case.

[00:11:55] Speaker 01:
Can you tell me how you distinguished that case?

[00:12:00] Speaker 03:
Yes, thank you, Your Honor.

[00:12:01] Speaker 03:
So Simmons was a

[00:12:04] Speaker 03:
request to find, per se, that the misapplication of a presumption of sound condition was naturally produced prejudice.

[00:12:14] Speaker 03:
And what this court ruled is that that is not the type of error that would always, per se, cause harm.

[00:12:27] Speaker 03:
And I'll answer your question, Your Honor, if you'll permit.

[00:12:34] Speaker 03:
Please go ahead, yes.

[00:12:36] Speaker 03:
Okay.

[00:12:36] Speaker 03:
So what the Simmons Court said was the reason that that one can't be a per se rule or I would say more specifically that would naturally produce prejudice is because there can be other situations.

[00:12:49] Speaker 03:
There's the nexus.

[00:12:51] Speaker 03:
It's talked specifically about a nexus because that regulation does not speak directly to nexus as to specifically whether the condition, the disability is related to service.

[00:13:02] Speaker 03:
In this case, it does.

[00:13:04] Speaker 03:
By finding the regulation applies, the veteran automatically gets granted benefits.

[00:13:10] Speaker 03:
So there's nothing else more that, there's not other findings that have to be, that are outside of this statute or regulation.

[00:13:20] Speaker 03:
The second distinguishing characteristic I would say is that in that one, in Simmons, it was within the context of clear and unmistakable error, which under current precedent requires the claimant to demonstrate that

[00:13:33] Speaker 03:
manifestly different outcome would have occurred.

[00:13:36] Speaker 03:
And because the nexus element is not proven by that statute, he could not prevail.

[00:13:43] Speaker 03:
In this case, again, there's still the duty to assist still applies where it doesn't in the cure non-stakeable error context.

[00:13:51] Speaker 03:
And the presumption guarantees or mandates entitlement to benefits.

[00:14:00] Speaker 04:
Okay, you have gone into your rebuttal time, but we will restore the three minutes for rebuttal and hear from the government now.

[00:14:10] Speaker 04:
Thank you.

[00:14:11] Speaker 00:
Thank you, Your Honor.

[00:14:13] Speaker 00:
May it please the Court, the Court should dismiss Mr. Alaniz's appeal or affirm the Veterans Court decision on appeal.

[00:14:20] Speaker 00:
In Mr. Alaniz's reply, he withdrew a number of arguments that we understood were made in his opening brief.

[00:14:28] Speaker 00:
and explain that he did not intend to make them and he clarifies other arguments made.

[00:14:32] Speaker 00:
For example, he explained that his arguments about the purported interpretation by the Veterans Court of 38 CFR 3.317, he wasn't claiming that the board misinterpreted that provision.

[00:14:48] Speaker 00:
However, during his argument, I heard a claim that the board had aired

[00:14:57] Speaker 00:
on this ground.

[00:14:58] Speaker 00:
Also, there was a reference to the Veterans Court making factual findings, and on the reply brief at page four, Mr. Alanis states that he is not arguing that the Veterans Court made factual findings outside of its jurisdiction, which were the subject of the Tadlock decision.

[00:15:19] Speaker 00:
As an initial matter, we note that the Veterans Court determined it was unable to find error based on Mr. Alanis'

[00:15:26] Speaker 00:
undeveloped arguments before the Veterans Court.

[00:15:29] Speaker 00:
The nature of the appellant's argument, the Veterans Court said, was unclear because he refers to both the concepts of undiagnosed illness and MUCMI, and the Veterans Court noted that it does not find error based on undeveloped arguments.

[00:15:45] Speaker 00:
The Court has also concluded that undeveloped arguments are waived, and Mr. Ellenis does not challenge the Veterans Court's conclusion that his argument was undeveloped

[00:15:54] Speaker 00:
And this is a reason that the court would lack jurisdiction.

[00:15:58] Speaker 00:
Although we did not raise this in our brief, we've noted that in the decision of Flowers v. O'Rourke, which this court issued on July 6, 2018, the court explained that when the Veterans Court found that the appellant Mrs. Flowers had failed to raise any particularized argument as to how the board erred in applying the statutes and regulations she described,

[00:16:22] Speaker 00:
the Veterans Court decision did not involve the validity or interpretation of those or any other regulations or statutes.

[00:16:30] Speaker 00:
And Mrs. Flowers, like Mr. Alanis, did not challenge whether the Veterans Court erred in applying any rule of law that imposed the initial burden of such an error.

[00:16:44] Speaker 00:
Thus, there's no need for the court to reach the question of the standard for determining whether the

[00:16:50] Speaker 00:
any alleged error was harmless.

[00:16:53] Speaker 00:
The Veterans Court could not determine what error Mr. Alaniz was asserting, but it went ahead and, you know, determined what it thought those errors, the claim might be about undiagnosed illness or MUCMI.

[00:17:14] Speaker 00:
And the Veterans Court, turning to the MUCMI question,

[00:17:21] Speaker 00:
looked at Mr. Alaniz's claim.

[00:17:24] Speaker 00:
Mr. Alaniz now has pointed out his view that the board aired in its description of 3.317 by referring to undiagnosed illness.

[00:17:36] Speaker 00:
But Mr. Alaniz made a claim of undiagnosed illness, claiming that his diagnosis psoriasis was an undiagnosed illness.

[00:17:46] Speaker 00:
He did not, in fact, raise

[00:17:48] Speaker 00:
the issue of whether it was a MUCMI.

[00:17:50] Speaker 00:
However, the board itself looked into that question and remanded it to the firm examination.

[00:17:58] Speaker 00:
And as the Veterans Court noted on page four of its decision, the examiner found that Mr. Alaniz's condition, the esauriasis, was not multi-symptom.

[00:18:14] Speaker 00:
Now, Mr. Alaniz has

[00:18:17] Speaker 00:
in this argument, has stated numerous times that there must be a, he must be entitled to compensation if the etiology or pathophysiology is inconclusive.

[00:18:30] Speaker 00:
However, he's simply referring, he's ignoring the definition of a MUCMI, in that definition in the regulation, it notes that the illness must be multi-symptom, and the Veterans Court

[00:18:47] Speaker 00:
correctly noted that the examiner had found it was not multi-symptom and Mr. Alanis had never provided any evidence that it was.

[00:18:57] Speaker 00:
Given this, there was simply no way that any purported error that was never fully explained by Mr. Alanis, there was no way that any error could have resulted in prejudice because if the board had not made the error whatever it was supposed to be,

[00:19:16] Speaker 00:
It would not have made a difference because Mr. Alley simply cannot be found to have a mock meet based on the examination in the record that the Veterans Court considers.

[00:19:29] Speaker 04:
Ms.

[00:19:29] Speaker 04:
Tandem, this is Judge Toronto.

[00:19:33] Speaker 04:
Is there anything else in the regulation that is obviously missing?

[00:19:39] Speaker 04:
The reason I ask that is something that you referred to in the footnote of your brief and that's

[00:19:46] Speaker 04:
sort of playing from the record about the board decisions and the medical examiner.

[00:19:54] Speaker 04:
Early on, the board translated multi-symptom into multi-system.

[00:19:58] Speaker 04:
I think you'll correct me if I'm wrong.

[00:20:03] Speaker 04:
It's remand order told the medical examiner to answer the question about multi-system.

[00:20:10] Speaker 04:
I don't have any particular reason to think that that is identical to multi-symptom.

[00:20:17] Speaker 04:
It's not clear to me therefore that the record actually does contain a medical examination conclusion that this is not multi-symptom.

[00:20:31] Speaker 04:
What am I to make of that, that disparity?

[00:20:38] Speaker 00:
Your Honor, as we noted in our brief, Mr. Allen has never raised any concern with the use of the term multi-system, which, as we noted, is simply a typo.

[00:20:50] Speaker 00:
It was clear that the board was referring to a MUCMI, and it used the term multi-system.

[00:20:59] Speaker 04:
Why would it have been clear to the medical examiner that the specific question, and I think maybe in three or four different separate questions, multi-system was used if I'm remembering correct, and the medical examiner is reading the questions that,

[00:21:20] Speaker 04:
are supposed to be answered and answers those questions.

[00:21:26] Speaker 04:
Should I assume that the medical examiner understood enough about the legal context to understand that that was actually not the question that was intended because of the background law?

[00:21:42] Speaker 00:
Well, I understand that the Veterans Court understood the

[00:21:49] Speaker 00:
examiner to be speaking to the question of MUCMI when using that term.

[00:21:56] Speaker 00:
And the board, I'm looking at the board's decision here, the board certainly, when it remanded the

[00:22:14] Speaker 00:
The examiner took a look and looked at the questions that plainly relate to the question of MUCMI, such as etiology, pathophysiology.

[00:22:25] Speaker 00:
Those were the questions asked by the board.

[00:22:28] Speaker 00:
Therefore, it was apparent that the board and the medical examiner were looking at, in addition to undiagnosed illness, simply the next subsection within

[00:22:41] Speaker 04:
Right.

[00:22:43] Speaker 04:
I guess let me put the point this way.

[00:22:45] Speaker 04:
If the medical examiner were a lawyer or had been presented with the actual regulation, and you'll tell me if either of those two things is true, then the medical examiner might well have

[00:22:59] Speaker 04:
understood perfectly well that the repeated language, I think this is on A40 or something, multi-system was actually not an accurate word for the question that was intended to be asked.

[00:23:14] Speaker 04:
But while the Veterans Court and you and the board

[00:23:21] Speaker 04:
presumably understood that that was, as you say, a typo.

[00:23:26] Speaker 04:
Why would we think that the medical examiner understood that?

[00:23:33] Speaker 00:
The issues that she's looking through, the specific questions and the questions that she is looking at, she's looking at evidence of

[00:23:50] Speaker 00:
of psoriatic arthritis, she's looking at, that would be a symptom and system.

[00:24:02] Speaker 00:
There's nothing in here that would, you know, explain what a system would mean in the context of a medical examination.

[00:24:12] Speaker 00:
Therefore, certainly symptom is what a medical examiner would be, a doctor would be looking for.

[00:24:21] Speaker 04:
Okay, and I do understand that this is not a point that has been pressed on appeal, but put aside that the, for one second, the multi-symptom requirement of the regulatory conclusive presumption.

[00:24:41] Speaker 04:
Is there something else in the regulatory requirement that is, that the Veterans Court said was,

[00:24:50] Speaker 04:
was not in evidence and therefore the board error about diagnosis if indeed it was an error is harmless or is it really just this point of a multisymptom?

[00:25:05] Speaker 00:
Well, on page appendix 6, the Veterans Court also noted that Mr. Alanis had not pointed to any evidence reflecting that his psoriasis is multisymptom or that it could otherwise satisfy the requirements for a MUCMI.

[00:25:20] Speaker 00:
So in addition to the fact that it was not multi-symptom, he also had not provided evidence of any other of the requirements.

[00:25:35] Speaker 00:
Those requirements are the lack of a conclusive etiology or the pathophysiology requirement as well as we noted

[00:25:48] Speaker 00:
etiology is cause and the examiner did not move to the question of etiology or pathophysiology because the multi-symptom prong was not met.

[00:26:07] Speaker 00:
However, etiology meaning cause, the examiner certainly explained that psoriasis is an autoimmune disorder.

[00:26:16] Speaker 00:
That is the cause.

[00:26:19] Speaker 00:
There is some evidence as to other requirements for the, whether there's among me.

[00:26:27] Speaker 00:
And I also wanted to point out that the standard, and the court noted that Mr. Allen is asking the court to do exactly what the Supreme Court in Sanders advised against, which is to, in the first instance,

[00:26:45] Speaker 00:
decide whether a type of error has a natural effect.

[00:26:50] Speaker 00:
In fact, Sanders said the Federal Circuit is the wrong court to make determinations about the natural effect that certain errors may have in prejudicing a party's substantial rights.

[00:27:03] Speaker 00:
It's simply not correct for Mr. Allen to argue that the Supreme Court left that question open.

[00:27:09] Speaker 00:
Ms.

[00:27:12] Speaker 04:
Tantum, this is Judge Sorrento again.

[00:27:14] Speaker 04:
I'm not entirely sure what the boundaries of Mr. Dohacken's argument is, but suppose the argument is that what was a legal error by the Veterans Court was its own

[00:27:34] Speaker 04:
declining to consider whether this is a kind of case for which a natural effects rule would be appropriate.

[00:27:46] Speaker 04:
Not that we should make that determination, but that given that the Veterans Court has the legal authority to do that, it failed to recognize that it had that authority and should at least consider the question in this context.

[00:28:04] Speaker 00:
Well, Mr. Allen did not raise any argument before the Veterans Court that this error had a natural effect of causing him prejudice.

[00:28:13] Speaker 00:
Therefore, he's waived any argument of that sort.

[00:28:15] Speaker 00:
And there is no determination by the Veterans Court on that subject that the court could consider.

[00:28:21] Speaker 00:
The Supreme Court didn't leave open the possibility of the adoption of a

[00:28:28] Speaker 00:
per se rule and instead referring only to empirically based generalizations.

[00:28:35] Speaker 00:
And the Veterans Court is the court that could establish through seeing numerous cases whether there's a possibility of veterans not meeting evidentiary burdens in certain situations.

[00:28:51] Speaker 00:
And that's not what Mr. Alaniz is seeking

[00:28:54] Speaker 00:
to apply here.

[00:28:56] Speaker 00:
He's creating a very broad and vague standard that can't be squared with Congress's requirement that the Veterans Court take due account of the rule of prejudicial error in 38 U.S.C.

[00:29:08] Speaker 00:
Section 7261B2.

[00:29:10] Speaker 00:
The typically applied rule from civil cases, if you don't mind your honor, I'll just finish my sentence, the typically applied rule from

[00:29:23] Speaker 00:
Civil cases is simply that a claimant must explain to the Veterans Court how the error to which he points could have made any difference, as the Court and Sanders said at page 413.

[00:29:33] Speaker 00:
And if the Court has no further questions, we... I have a quick question.

[00:29:39] Speaker 02:
This is Judge Chen.

[00:29:41] Speaker 02:
I heard the proposing counsel today connect his proposed natural effects rule to

[00:29:52] Speaker 02:
the VA's duty to assist.

[00:29:55] Speaker 02:
And so therefore, if there is perhaps a hole in his case, there's nonetheless a duty to assist.

[00:30:09] Speaker 02:
Can you speak to that?

[00:30:11] Speaker 00:
Yes, Your Honor.

[00:30:13] Speaker 00:
Again, this is the type of standard that Mr. Allen is

[00:30:19] Speaker 00:
proposing would simply do away with the rule of harmless error that Congress has explained that the Veterans Court must apply.

[00:30:27] Speaker 00:
The Veterans Court has the responsibility to consider the record and consider whether this error can have any prejudice and it's up to the appellant to explain what that prejudice is.

[00:30:48] Speaker 00:
And a rule that has to do with the duty to assist and sort of a, which we understood from his reply brief that Mr. Alaniz was not raising this argument.

[00:31:04] Speaker 00:
But an argument of that sort would simply open as a per se rule would mean that no error would ever be found to be harmless.

[00:31:18] Speaker 00:
so that if the court has no further questions, we request the court dismiss the appeal for the reasons we've discussed or affirm the decision of the veterans court.

[00:31:34] Speaker 04:
Thank you.

[00:31:35] Speaker 04:
Thank you.

[00:31:36] Speaker 04:
And Mr. Dohacos, you have three minutes for rebuttal.

[00:31:42] Speaker 03:
Thank you, Your Honor.

[00:31:43] Speaker 03:
I have several points.

[00:31:44] Speaker 03:
I hope to get to them all.

[00:31:45] Speaker 03:
With regard to the multi-symptom finding, the secretary points to the examiner's statement that it is not a multi-system or multi-symptom, and I don't know that the interchangeability of those words really matters.

[00:31:59] Speaker 03:
But nothing in the board's decision said that he did not have a multi-symptom illness.

[00:32:07] Speaker 03:
And again, going back to the Statute 7261C, the Veterans Court cannot make an initial fact-line

[00:32:16] Speaker 03:
They reviewed decisions and findings of the board.

[00:32:20] Speaker 03:
And on appendix page five to six, I just want to read here because I think this is, this has been a little confused as to what exactly the Veterans Court did.

[00:32:30] Speaker 03:
To the extent that appellant asserts that his psoriasis could constitute an MUCMI pursuant to 3.317, he appears to contend that the board should have considered whether etiology or pathophysiology of his psoriasis is inconclusive

[00:32:46] Speaker 03:
And that's exactly what he argued.

[00:32:48] Speaker 03:
So the secretary's assertion that he waived some argument is not, this argument was not waived.

[00:32:56] Speaker 03:
Further down in the next paragraph, he talks about, raised for the first time in his reply brief that the examinations were inadequate, and that's the issue that the Veterans Court said was waived.

[00:33:08] Speaker 03:
Not that the regulation should apply if the etiology or pathophysiology were inconclusive.

[00:33:15] Speaker 03:
So that question was squarely before the court, and the court assumed that that was the error, but then said that it's harmless, again, ignoring that the board should have made additional fact finding.

[00:33:32] Speaker 03:
With regard to the examination that we talked about, that's just one piece of evidence that the board considers under 5107.

[00:33:38] Speaker 02:
Do you recall what the argument was before the board?

[00:33:43] Speaker 02:
Was a MUCME theory raised to the board?

[00:33:47] Speaker 03:
I do not, Your Honor.

[00:33:48] Speaker 03:
I do believe it.

[00:33:50] Speaker 03:
I won't speculate.

[00:33:51] Speaker 03:
I don't know.

[00:33:52] Speaker 03:
I just focused on what was argued to the court.

[00:33:55] Speaker 02:
My understanding was just about whether psoriasis was an undiagnosed illness.

[00:34:00] Speaker 02:
And the board concluded, no, it's not undiagnosed because it's diagnosed with psoriasis.

[00:34:06] Speaker 03:
Yes, Your Honor.

[00:34:09] Speaker 03:
That, I would say, is not necessarily fatal to this issue because the board has an obligation, statutory and regulatory, to apply all laws and to assess anything that's reasonably raised.

[00:34:27] Speaker 03:
Clearly, it was reasonably raised because the remand order asked an examiner to discuss whether it qualified for the MUCMI presumption.

[00:34:40] Speaker 03:
The duty to assist is important to this.

[00:34:47] Speaker 03:
We are not arguing that there was an error in the duty to assist, but that the duty to assist helps to inform why errors like this are naturally produced prejudice, and the Simmons Court explains why most pro se rules don't work

[00:35:08] Speaker 03:
But that analysis does not apply to this error.

[00:35:13] Speaker 03:
And it would be quite narrow errors that would be naturally producing prejudice.

[00:35:19] Speaker 04:
Thank you.

[00:35:20] Speaker 04:
Thanks to all counsel.

[00:35:22] Speaker 04:
And the case is submitted.