[00:00:00] Speaker 04:
for argument is 21-2077 Carter versus McDonough.

[00:00:05] Speaker 04:
All right counsel how do I say your name?

[00:00:11] Speaker 04:
Dohacus.

[00:00:13] Speaker 04:
Mr. Dohacus please proceed.

[00:00:15] Speaker 02:
Thank you your honor may it please the court.

[00:00:17] Speaker 02:
On behalf of Mr. Carter I want to thank this court for the opportunity to present its appeal.

[00:00:21] Speaker 02:
We do wish to emphasize, as we did in our briefs, that for the purposes of this appeal only, Mr. Carter does not challenge the factual findings of the board or the court and reserves the right to and intends to in the future challenge these factual matters at the agency as necessary.

[00:00:36] Speaker 02:
So this appeal presents a question of statutory interpretation.

[00:00:40] Speaker 02:
Namely, we ask this court to decide what Congress meant when it prohibited payment of compensation for an injury that is a result of

[00:00:50] Speaker 02:
the person's own willful misconduct.

[00:00:53] Speaker 03:
Here, the unsputed facts demonstrate that the actual cause of Mr. Carter's head injury was the excessive- Can you point me in the Veterans Court decision where you think it made an incorrect legal interpretation as opposed to an incorrect application of the standard to the facts?

[00:01:12] Speaker 02:
Yes, Your Honor.

[00:01:15] Speaker 02:
On Appendix 6, at the very last two sentences,

[00:01:21] Speaker 02:
Balancing this evidence, the board determined that the head injury resulted from, I'm sorry, appendix seven.

[00:01:32] Speaker 02:
Second to last sentence of the first paragraph.

[00:01:35] Speaker 02:
The board applied the correct legal standard, and we can't say that its factual conclusions are clearly wrong.

[00:01:41] Speaker 02:
And the legal standard that the Veterans Court applied here was that the

[00:01:49] Speaker 02:
probable consequences of someone's actions are the same as his own willful misconduct.

[00:01:55] Speaker 03:
Where do you get that?

[00:01:56] Speaker 03:
It's not here.

[00:01:57] Speaker 03:
Is that what's in the board's decision?

[00:02:00] Speaker 02:
There's nothing explicit that says that, Your Honor.

[00:02:03] Speaker 03:
So you're making up your interpretation of the Veterans Court decision, but it doesn't say that.

[00:02:10] Speaker 02:
It doesn't explicitly say that, Your Honor.

[00:02:11] Speaker 02:
However, the only way that the court could have affirmed the board's decision was to equate the two based on the findings by the board.

[00:02:20] Speaker 03:
Now, the board- Why is that?

[00:02:22] Speaker 03:
All they have to determine is, did his willful misconduct cause his injury?

[00:02:26] Speaker 03:
And they determined that his injury is a result of his resisting arrest.

[00:02:31] Speaker 02:
That's not what the board said, Your Honor.

[00:02:33] Speaker 02:
On page 25 of the appendix, the board specifically found

[00:02:39] Speaker 02:
Another MP then struck the veteran with a nightstick, resulting... Can we just stick with the Veterans Court decision?

[00:02:47] Speaker 02:
That's what we're reviewing.

[00:02:49] Speaker 02:
We can, Your Honor, but this is the fact that was affirmed and as I... Well, we don't care about the facts that are affirmed because we can't review those.

[00:02:56] Speaker 03:
Correct, Your Honor.

[00:02:57] Speaker 03:
And we can't even review the application of the law.

[00:02:59] Speaker 03:
You have to show that somehow your legal interpretation that excludes any injuries caused by a third party is a correct legal interpretation.

[00:03:10] Speaker 02:
Yes, Your Honor.

[00:03:11] Speaker 02:
And again, going back to the quote that I just referred to on Appendix 7, the board applied the correct legal standard and

[00:03:18] Speaker 02:
We can't say that its factual conclusions are wrong.

[00:03:22] Speaker 03:
We don't get to review that latter part.

[00:03:25] Speaker 02:
No, Your Honor, but we have to understand what those factual conclusions are.

[00:03:29] Speaker 04:
So can I just understand, under your construction of willfulness conduct, is it your view, because on page 25, you sent me to the facts of the case.

[00:03:40] Speaker 04:
And what the facts of the case that were found here is during the arrest, he became combative and struck one of the arresting military policemen.

[00:03:47] Speaker 04:
Another military policeman then struck the veteran with a nightstick, resulting in his injury.

[00:03:52] Speaker 04:
Is your view of the interpretation of willful misconduct, that willful misconduct would cover, for example, if the veteran himself broke his hand when he punched the military officer, that that injury to his hand would be the result of his own willful misconduct.

[00:04:08] Speaker 04:
But is it your view that a construction of willful misconduct does not include

[00:04:13] Speaker 04:
the action that was taken that was necessary to subdue him after he struck the military policeman and any injury that resulted from the action that was undertaken to subdue him.

[00:04:25] Speaker 04:
Is your view of the interpretation of willful misconduct that would only apply to him breaking his hand when he punched someone, but it wouldn't apply to any harm he suffered when they subdued him?

[00:04:37] Speaker 02:
Not necessarily, Your Honor.

[00:04:39] Speaker 04:
Help me understand your interpretation of willful misconduct.

[00:04:43] Speaker 04:
that it would at least include the broken hand.

[00:04:45] Speaker 02:
Yes, absolutely.

[00:04:46] Speaker 02:
That's his own willful misconduct.

[00:04:49] Speaker 04:
But it doesn't include actions that were taken that were necessary to subdue him as a result of his resisting arrest.

[00:04:58] Speaker 04:
It does not extend to those injuries that he suffered in the course of that.

[00:05:02] Speaker 04:
Is that your view of willful misconduct?

[00:05:04] Speaker 02:
For the most part, that is correct, Your Honor.

[00:05:06] Speaker 02:
And I think I would caveat that with the fact that- You're equating injury with misconduct.

[00:05:13] Speaker 03:
But that's not what the statute says.

[00:05:16] Speaker 03:
It's injuries resulting from willful misconduct.

[00:05:19] Speaker 03:
So it contemplates the willful misconduct.

[00:05:22] Speaker 03:
I mean, the board has to make some kind of factual determination that this followed as a matter of proximate cause.

[00:05:29] Speaker 03:
That's a factual determination, or at least in application, a lot of fact.

[00:05:33] Speaker 03:
We can't review any of that.

[00:05:35] Speaker 03:
But are you saying that in order to avoid having to pay compensation, the conduct,

[00:05:43] Speaker 03:
The action that caused the injury has to be the veteran's own action.

[00:05:49] Speaker 03:
Yes, Your Honor.

[00:05:50] Speaker 03:
But the statute doesn't use that terminology.

[00:05:53] Speaker 03:
It uses the term willful misconduct, which is a broader term.

[00:05:57] Speaker 02:
The willful misconduct, Your Honor, forms the basis for determining how to identify what caused the injury or disease.

[00:06:10] Speaker 02:
The key term, because the phrase that's in the statute, Your Honor, is that the... Let me ask you another hypothetical.

[00:06:17] Speaker 03:
Say that the service member is at some kind of bar on base, assuming there's anything that's covered by the in-service thing.

[00:06:28] Speaker 03:
I don't want to get in a fight about whether it's in-service or not.

[00:06:31] Speaker 03:
And he throws the first punch, and the second punch comes back and breaks his jaw.

[00:06:36] Speaker 03:
Is that second punch not the result of his willful misconduct?

[00:06:40] Speaker 03:
No, Your Honor.

[00:06:41] Speaker 03:
So you're equating injury with willful misconduct.

[00:06:46] Speaker 03:
No, Your Honor.

[00:06:47] Speaker 03:
I think that- Why not?

[00:06:48] Speaker 03:
Because clearly getting punched in the face when you threw the first punch is a result of your willful misconduct.

[00:06:56] Speaker 02:
It is not, Your Honor.

[00:06:57] Speaker 02:
It is the result of the other person making

[00:07:00] Speaker 02:
a free will choice to respond.

[00:07:03] Speaker 02:
We do not have to respond when somebody punches us.

[00:07:07] Speaker 03:
Yes, but isn't it, if you use just general proximate cause language, if you start a fight, you're likely to get punched in the face.

[00:07:17] Speaker 02:
Yes, Your Honor.

[00:07:17] Speaker 02:
That is a probable consequence.

[00:07:18] Speaker 03:
That's a proximate cause of your willful misconduct.

[00:07:22] Speaker 03:
Isn't that all the standard is?

[00:07:24] Speaker 02:
No, Your Honor.

[00:07:25] Speaker 03:
Wearing the statute or wearing the legislative history, does it suggest it's tighter than that?

[00:07:31] Speaker 02:
We don't need, we didn't get into the legislative history here, Your Honor.

[00:07:35] Speaker 02:
But when we look at the plain words, as we outlined in our brief, this exact phrase has been interpreted by the Supreme Court at least twice, and once in the context of another veterans benefit statute.

[00:07:46] Speaker 02:
And in Brown v. Gardner, they said that the phrase, as a result of, means that it must be the direct cause of.

[00:07:55] Speaker 02:
And in Barrage.

[00:07:56] Speaker 03:
But that doesn't exclude external causes.

[00:08:01] Speaker 02:
We think it does, Your Honor.

[00:08:02] Speaker 00:
Well, doesn't the statute refer to the proximate cause?

[00:08:05] Speaker 00:
Does it mention proximate cause?

[00:08:07] Speaker 00:
No, Your Honor.

[00:08:07] Speaker 00:
The statute does not.

[00:08:09] Speaker 02:
The regulation uses a proximate cause, but only with respect to, if you look at, I believe it's C3 of the regulation.

[00:08:20] Speaker 02:
It talks about the proximate causation with respect to determining what is willful misconduct.

[00:08:27] Speaker 02:
And that's where the key differentiation is.

[00:08:29] Speaker 02:
When we look again at 1151, after Brown v. Gardner, the Congress amended that statute and kept in the language of result of treatment by the VA.

[00:08:42] Speaker 02:
And then we also see a proximate cause requirement later on in that statute.

[00:08:48] Speaker 02:
We don't see the distinction here.

[00:08:50] Speaker 00:
So proximate cause doesn't apply to this situation?

[00:08:52] Speaker 00:
No, Your Honor.

[00:08:53] Speaker 00:
But no causation?

[00:08:54] Speaker 00:
No, Your Honor.

[00:08:54] Speaker 02:
Only with respect to determining

[00:08:57] Speaker 02:
whether the willful misconduct occurred and determining whether the veteran's behavior, actions, conduct was in fact willful.

[00:09:08] Speaker 02:
That's what we define in 3.1.

[00:09:10] Speaker 04:
I understand.

[00:09:11] Speaker 04:
In 3.1 and 3, it says willful misconduct will not be determinative unless it is the proximate cause of the injury.

[00:09:20] Speaker 04:
Why isn't his willful misconduct in this case the proximate cause of his injury?

[00:09:26] Speaker 04:
He resisted arrest.

[00:09:27] Speaker 04:
In order to subdue him, they had to take an action that ultimately caused him harm.

[00:09:32] Speaker 04:
Whether that harm came in the form of them holding his arms behind his back, and they maybe dislocated his shoulders in an attempt to stop him from continuing to punch them, or whether it came in the form of them having to use a nightstick to subdue him after he had already punched them.

[00:09:48] Speaker 04:
Why isn't the result of his injury, no matter what the form of the injury was,

[00:09:54] Speaker 04:
a result of his willful misconduct.

[00:09:57] Speaker 02:
A couple of points on that, Your Honor.

[00:09:58] Speaker 02:
Number one, I would say that if he were being subdued and he were attempting to break away and was injured, that would be, I would think, more closely the result of his own willful misconduct.

[00:10:10] Speaker 04:
However, that's what the facts are in this case.

[00:10:12] Speaker 04:
The facts are in this case that he was resisting arrest, that he took a swing and hit one of the MPs, and then another MP struck him

[00:10:23] Speaker 04:
So the facts are he was resisting arrest.

[00:10:27] Speaker 02:
But the resisting arrest did not cause, was not the cause of his injury.

[00:10:32] Speaker 02:
The cause of his injury was the MP.

[00:10:34] Speaker 02:
No, no, no.

[00:10:35] Speaker 03:
This is approximate cause determination.

[00:10:38] Speaker 03:
And clearly resisting arrest is approximate cause.

[00:10:41] Speaker 03:
There may be other causes, but this doesn't say the sole cause or anything like that.

[00:10:46] Speaker 03:
This refers to a basic tort principle.

[00:10:49] Speaker 03:
And no jury in the world would say resisting arrest and getting hit by a nightstick is not a proximate cause of resisting arrest.

[00:10:58] Speaker 03:
Right?

[00:10:59] Speaker 03:
We're not looking at a variant notion of causation.

[00:11:02] Speaker 03:
They actually use the word proximate cause.

[00:11:04] Speaker 02:
The statute does not use proximate cause, Your Honor.

[00:11:06] Speaker 02:
And that's the basis of our- The regulation does, Doug.

[00:11:09] Speaker 02:
Yes, Your Honor.

[00:11:09] Speaker 02:
But again, the regulation focuses on defining and determining whether the conduct was willful.

[00:11:16] Speaker 04:
Is your view that this regulation is inconsistent with the statute?

[00:11:21] Speaker 02:
No, Your Honor.

[00:11:22] Speaker 02:
We're not challenging the regulation in any way.

[00:11:24] Speaker 02:
All we're saying is that the regulation only addresses willful misconduct and does not extend to as a result of, and the reason we know that is because the statute does not use any kind of language that implicates proximate causation.

[00:11:39] Speaker 02:
And in Brown v. Gardner, in Barrage, the Supreme Court looking at this precise phrase of, and.

[00:11:45] Speaker 04:
But if the lower tribunals concluded that his willful misconduct is the proximate cause of the injury he suffered by virtue of being hit with a nightstick, why isn't this case over?

[00:11:58] Speaker 02:
But that's not what the lower tribunal found, Your Honor.

[00:12:01] Speaker 04:
Actually, it laid out how the definition of local misconduct talked about probable consequences and must be the proximate cause of the injury or disease.

[00:12:13] Speaker 04:
Then it went through and said when the other MP struck him, I mean, it looks to me like they made a finding to that extent.

[00:12:22] Speaker 02:
The finding, Your Honor, that we're relying on again on Appendix 25, the other MP struck the veteran with a nightstick resulting in

[00:12:29] Speaker 02:
the aforementioned head injury.

[00:12:31] Speaker 02:
So the MP smashing his skull in with a nightstick is what caused his injury.

[00:12:38] Speaker 04:
But his willful misconduct is what caused that injury to occur.

[00:12:43] Speaker 02:
No, Your Honor.

[00:12:43] Speaker 02:
The MP's actions are what caused the injury to occur.

[00:12:47] Speaker 03:
There can be more than one proximate cause.

[00:12:49] Speaker 02:
Yes, Your Honor.

[00:12:49] Speaker 02:
But again, our argument focuses on the fact that the statute

[00:12:54] Speaker 02:
is very specific when it uses the phrase, a result of, as defined by the Supreme Court in those two cases, that is a direct causation and not proximal causation.

[00:13:05] Speaker 00:
Wait a minute.

[00:13:05] Speaker 00:
Look at Baraj.

[00:13:06] Speaker 00:
You referred to Justice Scalia's opinion on Baraj.

[00:13:09] Speaker 00:
And the quote is, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a non-essential contributing role in producing the event.

[00:13:22] Speaker 00:
There's no dispute here.

[00:13:24] Speaker 00:
This was more than a non-essential contributing role, right?

[00:13:28] Speaker 00:
Based on the findings here that you can't tell.

[00:13:30] Speaker 02:
Based on the findings.

[00:13:31] Speaker 00:
OK, so I don't understand how anything, how barrage using helps you.

[00:13:36] Speaker 02:
Because the ultimate holding in barrage was that it requires a direct causation.

[00:13:45] Speaker 02:
not approximate causation.

[00:13:47] Speaker 02:
And so when that phrase, a result of or the result of, as in these three different cases, ours and the two Supreme Court cases, the same phraseology, the same words, should be consistently interpreted to require a direct causation as opposed to approximate causation.

[00:14:04] Speaker 00:
So we're not supposed to follow what Justice Scalia says, is that we ignore it if it's a non-essential contributing role.

[00:14:11] Speaker 00:
That that standard doesn't apply to us because what?

[00:14:14] Speaker 00:
It's dicta.

[00:14:15] Speaker 02:
No, Your Honor, I think that that should be read in the context of the facts of that case, as opposed to what the ultimate holding is.

[00:14:23] Speaker 00:
Well, don't we read the holding as a result of the facts of this case, of the case?

[00:14:28] Speaker 02:
You do, Your Honor, yes.

[00:14:31] Speaker 02:
But barrage, again, should be read in the context of how it was presented to the court there.

[00:14:38] Speaker 04:
OK, Counsel, you're into your rebuttal time.

[00:14:39] Speaker 04:
Let's save some.

[00:14:41] Speaker 04:
Let's hear from the government.

[00:14:45] Speaker 04:
Mr. Carhartt, please proceed.

[00:14:49] Speaker 01:
May it please the court.

[00:14:51] Speaker 01:
I will begin with merits, where I've heard Mr. Gehoff was left off.

[00:14:56] Speaker 01:
To accept Mr. Carter's argument here, the court would have to conclude that Congress departed from traditional principles governing causation in enacting the relevant statutes here.

[00:15:07] Speaker 01:
and instead impose the sui generis requirement that a veteran's disability results from willful misconduct only when it's the immediate cause of the veteran's injury.

[00:15:17] Speaker 00:
Is it the government's position that as a result of, I mean, that this argument just wasn't preserved, the argument that your friend is making today about as a result of the construing that, that the board misconstrued it?

[00:15:30] Speaker 00:
Or is your view that even if that were the argument, we don't have jurisdiction because it's the application of law to that?

[00:15:37] Speaker 01:
both, Your Honor.

[00:15:39] Speaker 00:
So first, the argument wasn't... Right.

[00:15:44] Speaker 01:
So let me start from the beginning.

[00:15:46] Speaker 01:
So first, the court's jurisdiction over this issue would extend only to the very narrow, addressing whether there's this very narrow legal principle that says no matter what, under any circumstances, it can never be the case

[00:16:03] Speaker 01:
that unless something is the last link in the causal chain, unless misconduct is the last link in the causal chain, whenever there's any additional link, it is always the case that the misconduct did not result in injury.

[00:16:21] Speaker 01:
So the court would have, we don't dispute the court of jurisdiction if that were a legal principle.

[00:16:27] Speaker 01:
The problem is that argument was not raised before the Veterans Court.

[00:16:32] Speaker 01:
the focus of the Veterans Court was on factual weighing of evidence issues and not the meaning of the word result in that statute.

[00:16:42] Speaker 03:
I'm still having a hard time understanding the Veterans argument.

[00:16:46] Speaker 03:
Is it, in your view, is he arguing that as a result of willfulness conduct means that the

[00:16:53] Speaker 03:
The injury can only result from the veteran's physical actions and can't be the result

[00:17:03] Speaker 01:
Somebody others physical actions even if it's a result of the underlying this willful misconduct That's how we understand the argument So if there's any any link in the causal chain separating what the veterans doing from the veterans disability?

[00:17:17] Speaker 03:
Then so if he's in a bar fight and he punches somebody and breaks his hand he can't get compensation for that, but if

[00:17:26] Speaker 03:
the person punches him in the face in return for him punching him, his view is he can get residuals for the face but not the hand.

[00:17:35] Speaker 03:
Even though they're the result of the same willful misconduct which is engaging in a

[00:17:41] Speaker 03:
assault.

[00:17:42] Speaker 01:
Yes, judges.

[00:17:43] Speaker 01:
That's how we understand the argument.

[00:17:45] Speaker 01:
And our response to that is two or three or several fold.

[00:17:50] Speaker 01:
One is it's inconsistent with traditional principles of causation, as reflected in tort law and other bodies of law.

[00:17:58] Speaker 01:
It's inconsistent with the barrage decision, as Judge Prost's questions seem to suggest.

[00:18:03] Speaker 01:
The barrage decision says, in essence, it quotes the restatement first of torts,

[00:18:09] Speaker 01:
and says we expect that Congress is using the standard meaning of the word result.

[00:18:19] Speaker 01:
And in the context of the law, Congress legislates against the back.

[00:18:23] Speaker 03:
What if he weren't resisting arrest here?

[00:18:26] Speaker 03:
What if we had just a simple case of over-aggressive policing or police brutality, and he did something wrong?

[00:18:33] Speaker 03:
So that's willful misconduct.

[00:18:35] Speaker 03:
But then he complied with all the

[00:18:38] Speaker 03:
commands and stuff he didn't resist and nevertheless they hit him over the head and he had an injury there is some was full of misconduct here that maybe at some stuff led to the arrest and him getting you know hit over the head right but

[00:18:56] Speaker 03:
How would you resolve that?

[00:18:58] Speaker 01:
In that case, the board would apply traditional principles of causation and ask, was the misconduct an approximate cause of the injury?

[00:19:10] Speaker 04:
A probable consequence, right?

[00:19:11] Speaker 04:
It would have to be a probable consequence.

[00:19:13] Speaker 04:
And that wouldn't be a probable consequence under the hypothetical.

[00:19:16] Speaker 01:
I think that's very possible.

[00:19:18] Speaker 01:
Yeah, under the hypothetical that Judge Hughes laid out, it sounds like that's what you're saying is correct, Chief Judge Moore.

[00:19:23] Speaker 00:
Well, what about if it's raining outside?

[00:19:25] Speaker 00:
And it rains a lot because we're in Seattle.

[00:19:28] Speaker 00:
And he slips getting into the parole car.

[00:19:31] Speaker 00:
Nothing to do with what the police did.

[00:19:34] Speaker 00:
But he slips, and he hurts himself, and he injures himself because of the weather.

[00:19:38] Speaker 00:
What then?

[00:19:40] Speaker 00:
Is that some proximate cause to his having been arrested in the first place?

[00:19:45] Speaker 01:
So the substantial factor analysis would be what tort law would apply.

[00:19:50] Speaker 01:
So it would say, was his misconduct a substantial factor in him slipping?

[00:19:57] Speaker 01:
There's a whole body of tort law developed to deal with situations like this.

[00:20:01] Speaker 01:
There are issues of intervening forces and when they become superseding cause.

[00:20:05] Speaker 00:
That wouldn't be a foreseeable consequence of him getting arrested in the first place, is that he was going to slip getting into it.

[00:20:13] Speaker 00:
I think the answer to that ought to be no.

[00:20:16] Speaker 01:
I tend to agree.

[00:20:17] Speaker 01:
I tend to agree.

[00:20:17] Speaker 01:
But there is a whole body of law that governs situations like this.

[00:20:21] Speaker 01:
And ultimately, in determining, as Chief Judge Moore's question suggested, in determining whether a particular conduct is willful misconduct, proximate cause is baked into the analysis there.

[00:20:35] Speaker 01:
So I understand Mr. Carter to not be challenging.

[00:20:39] Speaker 01:
the application of the phrase willful misconduct, or how the board and the Veterans Court interpreted the phrase willful misconduct.

[00:20:45] Speaker 01:
He seems to be saying the word result is really what his argument turns on.

[00:20:50] Speaker 01:
But in determining that there was willful misconduct here, the board and the Veterans Court essentially determined that the injury was approximate cause of the willful misconduct.

[00:21:05] Speaker 01:
So I'm happy to address any other questions the court might have.

[00:21:09] Speaker 01:
If not.

[00:21:09] Speaker 04:
Thank you, Mr. Carter.

[00:21:11] Speaker 04:
Restore two minutes of rebuttal time, please.

[00:21:16] Speaker 02:
Thank you, Your Honor.

[00:21:18] Speaker 02:
I have just three points.

[00:21:21] Speaker 02:
Number one.

[00:21:22] Speaker 02:
This is not torts.

[00:21:23] Speaker 02:
This is veterans visibility.

[00:21:25] Speaker 02:
And we understand that there's a long history and tradition.

[00:21:30] Speaker 03:
Let me ask you this, because I'm still, let me make sure I understand your legal argument.

[00:21:34] Speaker 03:
Is your argument, if the willful misconduct directly causes another individual to undertake an action that causes the injury, that's not covered?

[00:21:46] Speaker 03:
That's correct, Your Honor.

[00:21:48] Speaker 02:
And again, we point to the statutes.

[00:21:50] Speaker 02:
1131 says that the VA will pay compensation for disability incurred during service.

[00:21:58] Speaker 02:
However, the willful misconduct must be the veteran's own willful misconduct.

[00:22:06] Speaker 03:
And I think that we're overlooking and passing over this very key and important- But aren't you again conflating willful misconduct with the actual injury sufferer?

[00:22:17] Speaker 03:
And they're two different things.

[00:22:21] Speaker 02:
They are different, Your Honor, but again, the result of the veteran's own willful misconduct.

[00:22:27] Speaker 02:
So the word own requires us to read the statute so that his misconduct alone, not somebody else's, but his misconduct, must cause the injury.

[00:22:38] Speaker 03:
So in my hypothetical, where he hits somebody and breaks his hand and the other person

[00:22:45] Speaker 03:
in response hits somebody and breaks his jaw, the hand's not compensable, but the jaw is?

[00:22:50] Speaker 03:
Correct, Your Honor.

[00:22:51] Speaker 03:
Even though the whole fight is the willful misconduct?

[00:22:54] Speaker 02:
Correct, Your Honor.

[00:22:55] Speaker 02:
That's correct.

[00:22:55] Speaker 02:
And again, we just ask that we look specifically to the words of the statute with respect to jurisdiction.

[00:23:04] Speaker 02:
Judge Prost, would you raise this argument below?

[00:23:08] Speaker 03:
Not this specific argument, your honor.

[00:23:11] Speaker 03:
I mean, don't you have to raise the legal argument you're making to the Veterans Court before you make them to us?

[00:23:18] Speaker 02:
Not necessarily, your honor.

[00:23:19] Speaker 02:
And for Shea, of course, we know that we don't even have to raise the issue to the Veterans Court so long as the decision relied upon an interpretation of the statute, which is what happened here.

[00:23:30] Speaker 04:
OK, counsel, we're out of time.

[00:23:32] Speaker 04:
I thank you, counsel.

[00:23:34] Speaker 04:
This case is taken to the commission.