[00:00:03] Speaker 00:
Department of Veterans Affairs, 2021-2278.

[00:00:09] Speaker 00:
Is it Ms.

[00:00:15] Speaker 00:
Funding?

[00:00:17] Speaker 04:
Yes, Your Honor.

[00:00:18] Speaker 00:
I noticed there's another Amanda on the brief.

[00:00:21] Speaker 00:
That's not you.

[00:00:23] Speaker 04:
Oh, it was me, Your Honor.

[00:00:24] Speaker 00:
Honest.

[00:00:26] Speaker 04:
Since briefing, I have since been married.

[00:00:28] Speaker 04:
Congratulations.

[00:00:30] Speaker 04:
Thank you very much.

[00:00:33] Speaker 00:
Please proceed.

[00:00:35] Speaker 04:
May it please the Court, Amanda Sunday, Your Honors, appearing on behalf of disabled Army veteran Robert F. Frick.

[00:00:44] Speaker 04:
The question of law before this Court today is whether the Veterans Court may address a theory of clear and unmistakable error or cue that was brought before and unaddressed by the agency

[00:00:58] Speaker 04:
in the first instance.

[00:01:00] Speaker 04:
Under this court's jurisprudence, the answer to that question must be no.

[00:01:06] Speaker 00:
The veteran- Cue is a question of fact, or at least application is a lot of fact.

[00:01:11] Speaker 00:
And clear and unmistakable isn't something that we deal with.

[00:01:17] Speaker 04:
That is correct, Your Honor.

[00:01:19] Speaker 04:
And in Andre versus Principi,

[00:01:21] Speaker 04:
this court held that for the Veterans Court to conduct a review of a theory of cue in the first instance would be to run afoul of its statutory prohibition against fact-finding.

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And that is precisely what happened here.

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Now, the Secretary concedes.

[00:01:41] Speaker 02:
Can I just ask this?

[00:01:42] Speaker 02:
So tell me which, which any?

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if any part of this understanding is wrong.

[00:01:47] Speaker 02:
My understanding is that before the board, you made a cue claim on presumption of soundness.

[00:01:58] Speaker 02:
Maybe you made a

[00:02:00] Speaker 02:
Cue claim based on the presumption of aggravation?

[00:02:03] Speaker 02:
I tend to think not, but you went to the Veterans Court and said you did.

[00:02:09] Speaker 02:
That you had a presumption of aggravation based cue claim before the board.

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And the Veterans Court, rather than saying you actually didn't raise that before the board, effectively said to you, well, let's assume that you made it.

[00:02:28] Speaker 02:
We don't see any harmless error in the board's failure to address it because legally it must be rejected based on a perfectly affirmable board finding on the aggravation component of presumption of soundness.

[00:02:51] Speaker 02:
So there's no Veterans Court violation of Chenery by making its own fact findings.

[00:02:59] Speaker 02:
It was affirming the board's finding on an element that was necessary to any presumption of aggravation CUE theory you had.

[00:03:11] Speaker 02:
Tell me what's wrong with what I just said.

[00:03:13] Speaker 04:
Your Honor.

[00:03:15] Speaker 04:
The legal error contained within the Veterans Court's analysis on the harmless error point is that at the time the Veterans Court's decision was issued, this court had decided George versus McDonough two months prior.

[00:03:29] Speaker 04:
And from that decision, we know that in 1961, the presumption of soundness had no second prong.

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So for the Veterans Court to state that,

[00:03:39] Speaker 04:
An analysis on the second prong of the presumption of soundness can effectively cover review of any cue under the presumption of aggravation is legally incorrect.

[00:03:52] Speaker 02:
So why isn't the relevant point that the board now, not 1961, but the current board decision that went to the Veterans Court said

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found that on the presumption of soundness, we can't see that there was an aggravation error.

[00:04:16] Speaker 02:
way back when, in 1961, on the aggravation element.

[00:04:24] Speaker 02:
And once the board, I forget what the date is, 2019 or something, makes that finding about the aggravation component of the presumption of soundness, why wasn't the Veterans Court acting correctly in saying, well, that has to defeat any current Q claim you have based on the presumption of aggravation?

[00:04:47] Speaker 04:
Because, Your Honor, the Veterans Court's imputation of overlap between the two statutes is an incorrect interpretation of their function.

[00:04:56] Speaker 04:
Under this Court's holding in Wagner v. Principi, under the Veterans Court's holding in Horn v. Shinseki, relying on Wagner to state that

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The term aggravation as used between the two statutes is mere linguistic overlap.

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That an inquiry under one statute does not carry relevance to the inquiry under the other.

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This court laid out a concise blueprint in Wagner

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for the agency to understand that it begins its inquiry as to the application of either presumption by scrutinizing the enlistment examination, and from there it goes one way or the other.

[00:05:34] Speaker 04:
The Veterans Court lays out the statutes as a Venn diagram with overlap on the aggravation element.

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However, it is different.

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Under the presumption of soundness,

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The agency is scrutinizing whether the government has appropriately proffered evidence of non-aggravation.

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In contrast, under 353, the government is scrutinizing whether the veteran has met the increase in disability component sufficient to come within the presumptive protection of the presumption of aggravation.

[00:06:05] Speaker 03:
The burden is different.

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when you consider the second prong of the soundness presumption versus the aggravation presumption.

[00:06:15] Speaker 03:
But haven't we said that a concept of aggravation is identical for both purposes?

[00:06:21] Speaker 04:
Yes, Your Honor, this court has said that that concept is the same.

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But to your point, one is a rebuttal standard, and the other one is the veteran establishing an increase in disability component.

[00:06:34] Speaker 03:
Sorry, is your contention here that the Veterans Court erred in putting a burden in the wrong place, or is it just that they saw overlap between the two concepts of aggravation?

[00:06:48] Speaker 04:
Your Honor, our position is that the Veterans Court in effect stated, we have evidence from the agency of non-aggravation sufficient under the second prong of soundness.

[00:07:00] Speaker 04:
Therefore, the board's error is harmless because Mr. Frick could have never established

[00:07:05] Speaker 04:
the increase in disability component sufficient to trigger the presumption of aggravation.

[00:07:11] Speaker 04:
This is not how the statutes were meant to function.

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This court was highly specific in Wagner that they are distinct and separate inquiries.

[00:07:20] Speaker 03:
OK, but where I'm getting lost is how is the board wrong?

[00:07:26] Speaker 03:
Give me a sense as to how

[00:07:28] Speaker 03:
It could be that just because the government was able to meet its burden on the second prong, that it doesn't logically follow inexorably that your client couldn't meet his burden if we were applying the presumption of aggravation.

[00:07:46] Speaker 04:
Through the analysis of the Veterans Court, which we now know from George was incorrect, the Veterans Court was stating that clear and unmistakable evidence of non-aggravation had been proffered by the government sufficient to rebut the second prong of soundness and completely curtail application of the presumption of aggravation.

[00:08:04] Speaker 04:
The reason it is so critical that these inquiries be kept separate and distinct is because a veteran would never be able to establish the increase in disability component under the presumption of aggravation with the way the Veterans Court has framed this analysis.

[00:08:22] Speaker 04:
The veteran would be up against clear and unmistakable evidence of non-aggravation from the first inquiry, the presumption of soundness inquiry,

[00:08:31] Speaker 04:
This would, in every case, curtail application of the presumption of aggravation.

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And so it cannot be harmless error for the agency to simply address one theory of cue that was brought before it under the presumption of soundness.

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And Judge Toronto, I understand your concern regarding the cue pleadings.

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However, this was the one point over which the Veterans Court exercised de novo review, whether or not cue was sufficiently pled.

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with respect to both theories.

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Had the Veterans Court deemed it that Mr. Frick had not pled Q under the presumption of aggravation, it would have had to dismiss without prejudice.

[00:09:15] Speaker 04:
And so the Veterans Court... I think what I'm about to ask is just a

[00:09:20] Speaker 02:
different version of what we've been talking about.

[00:09:24] Speaker 02:
So suppose we were to say the Veterans Court was mistaken in addressing any cue claim based on presumption of aggravation, even though you asked it to do so, and so should have said there just was never a cue claim pled to the board.

[00:09:49] Speaker 02:
You can now go back and you can actually go and plead it.

[00:09:53] Speaker 02:
In fact, let's suppose that.

[00:09:55] Speaker 02:
What could you say in that, that wouldn't be necessarily defeated by the final adjudication of rejection of acute claim based on presumption of soundness?

[00:10:18] Speaker 04:
Your Honor, I want to clarify your questions.

[00:10:22] Speaker 04:
I can answer it most appropriately.

[00:10:24] Speaker 04:
Are you stating, if the Veterans Court's decision were to stand, what would you do?

[00:10:30] Speaker 02:
Let's suppose you now had a cue claim of presumption of aggravation that you could make fresh.

[00:10:38] Speaker 02:
Wouldn't that necessarily be defeated by your current loss on the presumption of soundness?

[00:10:47] Speaker 04:
No, Your Honor, it would not.

[00:10:50] Speaker 04:
Because the inquiries under 311 and 353, as they were in 1961, are separate, we're reviewing the agency's decision through the lens of how those statutes were at the time.

[00:11:02] Speaker 04:
We know that under 311, evidence of non-aggravation was required to rebut it.

[00:11:08] Speaker 04:
Under 353, however, if the increase in disability component is shown by the veteran, it can only be rebutted

[00:11:17] Speaker 04:
by a specific finding that any increase in disability was due to its natural progression.

[00:11:24] Speaker 04:
The Veterans Court has since interpreted the specific finding element to be even more onerous than clear and unmistakable evidence.

[00:11:34] Speaker 04:
So a 353 pleading, if brought today or tomorrow, would not be defeated by a loss on the presumption of soundness point.

[00:11:43] Speaker 02:
And the fact that we're looking through the lens of clear and unmistakable error in which it has to be, I forget the phrase, but something like manifest that the bottom line result would have been different.

[00:11:59] Speaker 02:
That doesn't change the analysis, the analysis you just gave.

[00:12:05] Speaker 04:
It does not, Your Honor.

[00:12:06] Speaker 04:
And I hesitate to invite this court, just as we believe the Veterans Court shouldn't have done, to review the Q pleadings and to review the 1961 RO decision.

[00:12:18] Speaker 04:
However, a manifestly different outcome, it is Mr. Frick's position, would have been shown had 353 been properly applied.

[00:12:28] Speaker 04:
The undisputed facts in this case do not show that the government ever made a specific finding of any increase in disability being due to its natural progression.

[00:12:39] Speaker 04:
Now, the Veterans Court's primary error here was its plenary review of the RO's decision for Q. And its analysis is contained in the appendix at pages 10 to 11.

[00:12:51] Speaker 04:
This contains all of the hallmarks of fact-finding.

[00:12:55] Speaker 04:
The Veterans Court surveyed the evidence of record extant in 1961, service treatment records, separation examination, to hold that on its face the 1961 RO decision does not appear to contain

[00:13:09] Speaker 04:
error, and it also held that the evidence weighs against a finding of Q. It is appropriate for the Board of Veterans Appeals to have made such a finding with respect to the presumption of aggravation.

[00:13:22] Speaker 04:
It is legally untenable for the Veterans Court to have made such a finding.

[00:13:29] Speaker 04:
As this court held in Andre, doing so runs afoul of the statutory prohibition against fact-finding

[00:13:36] Speaker 04:
and renders meaningless the Veterans Court's jurisdictional statute requiring a final board decision.

[00:13:42] Speaker 03:
I may be completely confused, but didn't you ask the Court of Appeals for Veterans Claims to do exactly what they did?

[00:13:50] Speaker 04:
Your Honor, the Veterans Court in the motion for reconsideration

[00:13:56] Speaker 04:
was, I suppose, informed that the board had never addressed this theory of Q. Under Sandel versus West, the proper recourse at that juncture would have been for the Veterans Court to remand to the board.

[00:14:08] Speaker 03:
And is remand what you asked for at that time in your motion for reconsideration?

[00:14:13] Speaker 03:
Yes, Your Honor.

[00:14:14] Speaker 04:
Yes, it is.

[00:14:14] Speaker 03:
You were not asking the court to go ahead and do this analysis.

[00:14:18] Speaker 04:
No, Your Honor, no.

[00:14:20] Speaker 04:
That would have been improper for the court to preside over this in the first instance.

[00:14:27] Speaker 04:
Now, while the veteran.

[00:14:28] Speaker 00:
Council, most of your rebuttal time is gone.

[00:14:32] Speaker 00:
Do you wish to save it or use it?

[00:14:35] Speaker 04:
I will preserve.

[00:14:36] Speaker 04:
Thank you very much.

[00:14:38] Speaker 00:
We'll give you two minutes for rebuttal.

[00:14:46] Speaker 00:
Ms.

[00:14:47] Speaker 00:
Koenig, or is it Koenig?

[00:14:49] Speaker 05:
It's Koenig, Your Honor.

[00:14:51] Speaker 00:
Koenig.

[00:14:51] Speaker 00:
All right.

[00:14:52] Speaker 00:
Thank you.

[00:14:54] Speaker 05:
The Americanized version.

[00:14:59] Speaker 00:
Oh, umlaut.

[00:15:00] Speaker 00:
Yeah.

[00:15:08] Speaker 05:
Good morning, Your Honor, and may it please the court.

[00:15:11] Speaker 05:
The Veterans Court decision in this case should be affirmed because

[00:15:15] Speaker 05:
As Your Honors have already suggested during this argument, what the Veterans Court did in this case was entirely appropriate.

[00:15:23] Speaker 05:
The Veterans Court reviewed the findings made by the Board of Veterans' Appeals and concluded that, based on those findings, that there was sufficient support in the record to reject

[00:15:42] Speaker 05:
the Q claim newly raised by Mr. Frick before the Veterans Court.

[00:15:47] Speaker 05:
As your honor suggested.

[00:15:50] Speaker 02:
Is it enough for the Veterans Court to have said that there was sufficient support for a rejection of a presumption of aggravation claim to be made?

[00:16:08] Speaker 02:
That sounds like a significant step

[00:16:11] Speaker 02:
short of what a harmless error analysis would require, which I think would be, given the finding the board made, there could not possibly be a favorable finding on presumption of aggravation.

[00:16:29] Speaker 05:
Well, Your Honor, the Veterans Court, I don't believe, specifically made a finding as to whether Mr. Frick had raised the cue claim of the presumption of aggravation before the board, but found that

[00:16:41] Speaker 05:
In light of Mr. Frick's insistence that the Veterans Court address the presumption of aggravation, that the findings that were made by the board, the findings as to the RO's decision on the aggravation prong, were sufficient to make the legal conclusion that the presumption of aggravation was not implicated here, and that

[00:17:09] Speaker 05:
And that any legal error.

[00:17:11] Speaker 02:
Just because I'm balking for the moment at the pure use of the word sufficient.

[00:17:15] Speaker 02:
Sometimes there's evidence that would be sufficient for a fact finder to find one way.

[00:17:23] Speaker 02:
But you don't know whether the fact finder would in fact make

[00:17:27] Speaker 02:
front make that finding that way and I don't think that would be Enough to say well, it's harmless error that they never made the fact-finding You have to say the evidence is such that that's not fact-finding could be made only this way yes, your honor and the Veterans Court in reviewing the board's decision concluded that I

[00:17:49] Speaker 05:
Because the concepts of aggravation are the same, that the findings that the board made on aggravation as to the presumption of soundness, as you say, were conclusive as to the presumption of aggravation.

[00:18:05] Speaker 05:
And that those relying on those findings

[00:18:14] Speaker 05:
but that the Veterans Court could, in fact, rely on those findings by the board in making a legal conclusion that Mr. Frick had not implicated the presumption of aggravation.

[00:18:23] Speaker 02:
Can you address what Ms.

[00:18:24] Speaker 02:
Sunday said about how there is at least a difference in burden of proof between these two presumptions?

[00:18:33] Speaker 02:
And I think she was arguing that that actually makes a crucial difference here.

[00:18:40] Speaker 05:
Your Honor, we agree with the appellant that there is a different burden as to the two presumptions.

[00:18:48] Speaker 05:
In the presumption of soundness,

[00:18:51] Speaker 05:
The aggravation is a second prong.

[00:18:53] Speaker 05:
And as counsel said, the presumption of soundness can only be rebutted with clear and unmistakable evidence that the VA has to present clear and unmistakable evidence of a lack of aggravation.

[00:19:07] Speaker 05:
Under the presumption of aggravation, before the presumption can even be implicated in the first place, there must be some evidence of an increase in disability.

[00:19:17] Speaker 05:
And then the presumption of aggravation would

[00:19:20] Speaker 05:
kick in to presume that that aggravation that has already been shown was due to, there's a presumption that it was due to service unless there is a specific finding that it was instead due to the natural progression of the disease.

[00:19:37] Speaker 05:
And so the presumption of aggravation includes some burden shifting where the veteran has to first

[00:19:43] Speaker 05:
demonstrate some increase in disability before the presumption kicks in at all, and then the VA can still rebut the presumption that the aggravation was caused by service.

[00:19:53] Speaker 05:
Here, as the Veterans Court found, the findings in the record by the RO in 1961 and by the board in 2020, those findings did not establish that Mr. Frick had ever demonstrated any increase in disability.

[00:20:13] Speaker 05:
So there is no need for either the Veterans Court or the board to make a specific finding that it was due to the natural progression of the disease, because the presumption didn't, in fact, kick in in the first place.

[00:20:25] Speaker 05:
Instead, there was simply no evidence of aggravation.

[00:20:29] Speaker 05:
And that evidence of no aggravation was found to be sufficient to defeat the presumption of soundness.

[00:20:41] Speaker 05:
And it is also sufficient to conclusively demonstrate that there can be no presumption of aggravation.

[00:20:50] Speaker 03:
I think you told us, if I caught it correctly, that Mr. Frick insisted that the Veterans Court address his Q claim with respect to presumption of aggravation.

[00:21:02] Speaker 03:
Did I follow that correctly?

[00:21:04] Speaker 05:
In the sense that the appellant did seek reconsideration specifically on that ground.

[00:21:09] Speaker 03:
So then address, I think Ms.

[00:21:11] Speaker 03:
Sunday told us he wasn't insisting that they address the claim on the merits.

[00:21:16] Speaker 03:
He was insisting on a remand.

[00:21:22] Speaker 05:
Your Honor, I believe, just to look, the appellant's brief before the Veterans Court is in the appendix at pages 107 to 111 on this issue.

[00:21:35] Speaker 05:
I mean, the appellant does ask for a remand,

[00:21:47] Speaker 05:
But as the Veterans Court decision on reconsideration noted, there was no need for a remand because, again, all of the specific findings that would be necessary for the board to make were already made by the board's decision in 2020.

[00:22:02] Speaker 03:
And the court may or may not be right about that, but your contention that he insisted that they not remand, is that accurate or is that not accurate?

[00:22:15] Speaker 05:
Well, maybe that was a little bit of a strong statement that he insisted.

[00:22:19] Speaker 05:
But he did file for reconsideration, again, specifically on the presumption of aggravation, despite not having raised it before the board.

[00:22:28] Speaker 05:
In fact, Mr. Frick specifically disclaimed a presumption of aggravation claim in his briefs before the board.

[00:22:34] Speaker 05:
And that's in the appendix at page 71, where he specifically states that's not his argument on cue before the board, at least.

[00:22:44] Speaker 05:
Which is why we've argued in the briefs that to the extent the court disagrees that the Veterans Court should have addressed the issue in the first place, the appropriate remedy here would not be to remand, but would in fact just be to vacate just that portion of the Veterans Court decision and allow Mr. Frick to raise a new cue claim on the presumption of aggravation.

[00:23:08] Speaker 03:
And that's because he did not raise it originally at the board level.

[00:23:14] Speaker 05:
That's correct, Your Honor.

[00:23:18] Speaker 05:
But in the event that a new cue claim is raised, we would be looking at the same concept of aggravation, the same factual findings that were made by

[00:23:28] Speaker 05:
the RO, the same medical evidence that's in the record at pages 42 and 44 of the appendix, those same findings of non-aggravation would be what the board would look at and what the board did look at in concluding that there could be no aggravation under the presumption of soundness, which in this case, at least, is also conclusive of

[00:23:55] Speaker 05:
the presumption of aggravation.

[00:23:57] Speaker 05:
We're not here to suggest that in every instance, a finding as to the presumption of soundness would necessarily defeat a claim on the presumption of aggravation.

[00:24:09] Speaker 05:
But where the RO made a finding that there simply was no evidence of aggravation, that it was found both to be- This is the RO in 1951?

[00:24:19] Speaker 05:
That's correct, Your Honor, yes.

[00:24:21] Speaker 05:
Where that finding was made that there was no evidence of aggravation, it was found to be, and is not on appeal here, was found to be conclusive of the presumption of soundness and is conclusive of the fact that the veteran has not implicated the presumption of aggravation here.

[00:24:40] Speaker 03:
Is it true that in 1961 there was no second prong on the presumption of soundness?

[00:24:45] Speaker 03:
And if so, does that affect anything about what we should do here?

[00:24:49] Speaker 05:
We don't disagree that the George versus McDonald case, which I happened to have argued before the court, was about whether there was a second prong or whether there should have been a second prong in 1961.

[00:25:06] Speaker 05:
But Your Honor, I don't believe that that has any relevance to this case.

[00:25:14] Speaker 05:
Whether the RO was, it's not clear from the RO's decision whether the RO was considering the presumption of soundness and or the presumption of aggravation.

[00:25:25] Speaker 05:
Rather, the RO simply made factual findings that there was no aggravation.

[00:25:31] Speaker 05:
And it is those factual findings of no aggravation that the board relied on and that the Veterans Court

[00:25:37] Speaker 05:
in finding that the board was not arbitrary and Capricious in its decision was relying on.

[00:25:42] Speaker 05:
And so those factual findings, it doesn't matter whether they were going to a presumption of soundness prong or whether they were findings made that were unnecessary to be made or whether they were going to the presumption of aggravation.

[00:25:56] Speaker 05:
There's no evidence in the record as to what legal question the RO was asking.

[00:26:02] Speaker 05:
It was simply making a factual finding that there was no aggravation.

[00:26:07] Speaker 05:
We believe that that that finding is Does not demonstrate clear and unmistakable error yeah, there's the the board

[00:26:21] Speaker 05:
Just to get all of the standards correct, the Veterans Court was reviewing whether it was arbitrary and capricious for the board to have concluded that there was no clear and unmistakable error in the original 1961 decision.

[00:26:34] Speaker 05:
And the board so concluded, based on those same factual findings, and the Veterans Court concluded that it was not arbitrary and capricious to have relied on those findings.

[00:26:46] Speaker 05:
And we would also argue that the Veterans Court

[00:26:49] Speaker 05:
be affirmed on that basis.

[00:26:57] Speaker 05:
The Tadlock case and Chenery simply don't apply when there are sufficient findings in the record for the veteran's court to have or when

[00:27:10] Speaker 05:
There are findings in the record that would support affirmance.

[00:27:13] Speaker 05:
The Veterans Court does not violate Chenery.

[00:27:16] Speaker 05:
And in Tadlock, the Veterans Court is only prohibited from making de novo factual findings, which we do not believe were being made in this case.

[00:27:27] Speaker 02:
Can I ask you this question?

[00:27:29] Speaker 02:
So suppose it were?

[00:27:34] Speaker 02:
clear to us that before the board, no presumption of aggravation based Q claim had been made.

[00:27:45] Speaker 02:
Is it a jurisdictional problem for the Veterans Court to have said anything about it?

[00:27:54] Speaker 02:
Jurisdictional in the strong sense that it had no discretion even when asked to say something about it, in kind of an Article III jurisdictional sense that.

[00:28:15] Speaker 05:
I'm not trying to avoid the question, but a Q claim is required to be brought with specificity.

[00:28:23] Speaker 05:
This court's decision in Garcia and Andrews suggests that each new Q claim needs to be brought with specificity.

[00:28:32] Speaker 05:
And so to the extent the court agrees with the government that Mr. Frick had not raised the Q claim as the presumption of aggravation before the board,

[00:28:45] Speaker 05:
we believe that it is jurisdictional that there be a board decision on what the Veterans Court is deciding.

[00:28:53] Speaker 05:
However, here, in this case, given the overlapping factual question, we would argue that the Veterans Court did not lack jurisdiction in this particular instance

[00:29:07] Speaker 05:
solely due to the overlap in the factual findings.

[00:29:12] Speaker 05:
As a general matter, yes, we agree that the Veterans Court would not have jurisdiction to consider a new AQ claim that was not raised before the board.

[00:29:21] Speaker 05:
But given that

[00:29:24] Speaker 05:
In deciding a acute claim on the presumption of aggravation, they would be looking to the exact same factual findings of the RO, relying on the exact same medical evidence that's already in the record in this case.

[00:29:37] Speaker 02:
So when the veteran goes to the Veterans Court and says,

[00:29:43] Speaker 02:
I raised a particular cue claim, a presumption of aggravation claim, which I take it Mr. Frick went to the Veterans Court and said that and then asked the Veterans Court

[00:29:58] Speaker 02:
on the assumption, the assertion actually, that we did raise the claim, ask the Veterans Court to remand that because the board didn't really address it.

[00:30:11] Speaker 02:
That was kind of the argument.

[00:30:14] Speaker 02:
Does the board lack, do we get to decide for ourselves whether the veterans premise that

[00:30:28] Speaker 02:
He actually did raise this presumption of aggravation cue claim to the board is so plainly wrong that the veterans court lacked jurisdiction to say, okay, on your premise, um, I will proceed to consider your request for a remand, but I'm going to reject it because you couldn't possibly win on remand.

[00:30:50] Speaker 02:
So any failure by the board to address it is harmless.

[00:30:56] Speaker 05:
If I followed that question, Your Honor, this court can rely on or can affirm the Veterans Court decision if there are clear and unmistakable findings in the record that would support affirmance.

[00:31:23] Speaker 05:
I don't think that the...

[00:31:28] Speaker 05:
So I'm just trying to think through.

[00:31:33] Speaker 05:
If the veteran did not raise the, sorry.

[00:31:42] Speaker 02:
Would we defer in any way to the veteran's court's assessment of what the veteran raised to the board?

[00:31:49] Speaker 05:
Well, Your Honor, this court would lack jurisdiction to review the Veterans Court's harmless error analysis.

[00:31:57] Speaker 05:
So to the extent that the Veterans Court was conducting a harmless error analysis as to the board's findings, I think that that finding would be outside of this court's jurisdiction to redo that finding.

[00:32:12] Speaker 05:
And we've argued that in the briefs.

[00:32:19] Speaker 05:
At the end of the day, all of the findings that are necessary to make a determination on the presumption of aggravation are included within the record and have been made by the appropriate tribunals.

[00:32:33] Speaker 05:
So unless your honors have further questions, we would ask the court to affirm.

[00:32:37] Speaker 00:
Thank you, Ms.

[00:32:37] Speaker 00:
Cainy.

[00:32:40] Speaker 00:
This Sunday, just to weave it up, we'll give you three minutes for a bottle.

[00:32:53] Speaker 04:
Thank you, Your Honor.

[00:32:56] Speaker 04:
On remedy.

[00:32:57] Speaker 00:
Three minutes.

[00:33:00] Speaker 04:
So on remedy, the Secretary's suggestion of vacator without remand is a unique one.

[00:33:07] Speaker 04:
And in briefing, there was no authority, precedential authority or persuasive guidance cited to for this prescribed relief.

[00:33:17] Speaker 04:
Now, insofar as the secretary raises concerns with whether or not Q was appropriately pled before the board, this court has presided over that question before in a case that may provide persuasive guidance here.

[00:33:30] Speaker 04:
And that case is George versus Wilkie.

[00:33:33] Speaker 01:
And there, the secretary also- The George that just went to the Supreme Court?

[00:33:38] Speaker 01:
Or a different George?

[00:33:39] Speaker 04:
A different George, yes.

[00:33:41] Speaker 04:
A non-precedential George.

[00:33:44] Speaker 00:
The George that you're opposing counsel argue.

[00:33:47] Speaker 04:
No, respectfully, it was not.

[00:33:50] Speaker 04:
It was a different George.

[00:33:52] Speaker 02:
Yes, Your Honor.

[00:33:53] Speaker 02:
George II.

[00:33:53] Speaker 04:
Yes, George II, yes.

[00:33:55] Speaker 04:
And in this case, and again, George versus Wilkie, not George versus McDonough, this court presided over a similar situation where the secretary raised an identical concern.

[00:34:06] Speaker 04:
Was this Q theory ever pled before the board?

[00:34:09] Speaker 04:
Did the Veterans Court have jurisdiction to address it or not?

[00:34:13] Speaker 04:
The relief effectuated by this court was still vacator.

[00:34:17] Speaker 04:
with remand for the Veterans Court to determine its jurisdiction under Andre and its jurisdictional statute.

[00:34:25] Speaker 04:
Now our position is that this court can go even further than that, that this Q theory was pled before the board and I do have a citation to the appendix at page 64 in Mr. Frick's Q pleading where

[00:34:40] Speaker 04:
He mimicked the language from Section 353 and raised the contention that a pre-existing disability that he had was aggravated in severity beyond its natural progression during active service.

[00:34:53] Speaker 04:
This is the exact language from 353, not 311, a first prong or a non-existent second prong, but from 353.

[00:35:00] Speaker 04:
And so, again, we believe it was properly pled before the agency

[00:35:05] Speaker 04:
And so the Veterans Court's appropriate remedy would have been to remand for the agency to address it in the first instance.

[00:35:13] Speaker 04:
Now while Andre guides the legal error in this case, it's our position that Tadlock versus McDonough guides the remedy, and this court expressly held

[00:35:23] Speaker 04:
the Veterans Court may not make de novo factual findings and wrap it up under the guise of harmless error, but that is squarely within the province of the agency.

[00:35:33] Speaker 04:
Mr. Frick raised a Q theory before the agency.

[00:35:37] Speaker 04:
He is statutorily entitled to an answer from the agency

[00:35:41] Speaker 04:
on the theory that was pled.

[00:35:43] Speaker 04:
And so we asked this court to vacate the Veterans Court's decision and remand with instructions for it to instruct the agency to address it in the first instance.

[00:35:53] Speaker 03:
Thank you.

[00:35:56] Speaker 03:
Sorry.

[00:35:56] Speaker 03:
At page A67, it seems to me your client made it clear he wasn't raising a presumption of aggravation claim.

[00:36:06] Speaker 03:
In the middle of A67,

[00:36:09] Speaker 03:
He says the VA failed to carry its burden to show that Mr. Frick's bilateral shoulder impairments either pre-existed service or were not aggravated by service.

[00:36:18] Speaker 03:
That's the presumption of soundness test, is it not?

[00:36:22] Speaker 04:
Yes, Your Honor.

[00:36:23] Speaker 04:
So two theories of Q were contained within one pleading.

[00:36:26] Speaker 04:
One was introduced with respect to the presumption of soundness, which is what you are quoting.

[00:36:31] Speaker 04:
And one was brought with respect to the presumption of aggravation, which was referred to on page 67 in the language that I mentioned earlier.

[00:36:38] Speaker 03:
You said 64, I believe.

[00:36:40] Speaker 03:
Oh, I apologize, Your Honor.

[00:36:41] Speaker 03:
And that's a statement of facts.

[00:36:42] Speaker 03:
I'm reading from arguments and authority, and he goes on to cite presumption of soundness cases.

[00:36:48] Speaker 03:
I'm not clear on how we can read this as him raising a presumption

[00:36:52] Speaker 03:
of aggravation claim.

[00:36:55] Speaker 04:
Between pages 72 and 73, Your Honor, is where the in the alternative argument was raised.

[00:37:02] Speaker 04:
The evidence cited to you by Mr. Frick on page 72 and 73 is indicative of the increase in disability component sufficient to establish the presumption under section 353.

[00:37:14] Speaker 04:
Thank you.

[00:37:15] Speaker 02:
So it's 7273, not 64.

[00:37:18] Speaker 02:
That supports your contention that there was a presumption of aggravation to claim for the board.

[00:37:26] Speaker 04:
Yes, Your Honor, I hesitate to rewrite any pleadings or attempt to misconstrue any pleadings before this court.

[00:37:32] Speaker 04:
But the statement on page 64 does mimic the precise language from 353.

[00:37:39] Speaker 04:
And then on pages 72 to 73 is where the in the alternative theory of Q was raised.

[00:37:46] Speaker 04:
Thank you.

[00:37:46] Speaker 00:
Thank you, Counselor.