[00:00:00] Speaker 05:
The next case for argument is 21-1916, Henderson versus McDonough.

[00:00:14] Speaker 01:
Excuse me.

[00:00:18] Speaker 01:
May it please the court.

[00:00:19] Speaker 01:
Kenneth Carpenter appearing on behalf of Mr. Daniel Henderson.

[00:00:25] Speaker 01:
Although this is a

[00:00:27] Speaker 01:
underlying claim involving clear and unmistakable error.

[00:00:30] Speaker 01:
The question of clear and unmistakable error is not an issue in this matter.

[00:00:35] Speaker 01:
What is an issue in this appeal is whether or not the legal standard that was relied upon by the Veterans Court to decide not to review a question of regulatory interpretation presented by Mr. Henderson was erroneous.

[00:00:51] Speaker 01:
The correct legal standard is set out at 38 USC 7261A1.

[00:00:58] Speaker 01:
In that statute, Congress has clearly stated that the legal standard is to the extent necessary to a decision.

[00:01:07] Speaker 01:
And when presented, the Veterans Court shall interpret regulatory provisions and determine the meaning and applicability of those terms of an action of the secretary.

[00:01:19] Speaker 01:
That simply did not happen in this case.

[00:01:21] Speaker 01:
What happened in this case was that the Veterans Court indicated that it need not resolve the appellant's sole argument as to the interpretation of the regulation.

[00:01:34] Speaker 05:
But do you think they're constrained by the statute to necessarily have reached the regulation issue if it wasn't necessary, if they concluded it wasn't necessary?

[00:01:45] Speaker 01:
I do, Your Honor, because the language.

[00:01:47] Speaker 05:
It would be an advisory opinion, right?

[00:01:49] Speaker 05:
In their view, the way they viewed the case, it would be a purely advisory opinion because they could resolve it on because the issue of the regulation that you presented wasn't presented by their view of the facts of this case.

[00:02:06] Speaker 05:
And you're saying that they're not allowed to do that?

[00:02:09] Speaker 05:
Or you're just saying you must be saying they were wrong.

[00:02:14] Speaker 05:
I am saying they were wrong.

[00:02:16] Speaker 05:
That there is more prejudicial error.

[00:02:18] Speaker 05:
And if they were wrong about that, then obviously they may have had to reach the regulation, right?

[00:02:24] Speaker 01:
Well, that's our second argument, Your Honor.

[00:02:26] Speaker 01:
But the primary argument is that the legal standard required by Congress is to afford veterans judicial review of decisions made by the Secretary.

[00:02:37] Speaker 04:
Mr. Farmer, you correctly quoted, I think, 7261A, which begins, in a relevant part, to the extent necessary to its decision.

[00:02:47] Speaker 04:
Didn't the Veterans Court say it's actually not necessary to our decision?

[00:02:52] Speaker 04:
to decide the meaning of this 3.322 because the board made findings that make it unnecessary.

[00:03:03] Speaker 04:
How is this a violation of this 7261 language, which says to the extent necessary?

[00:03:11] Speaker 01:
Because the phrase, to the extent necessary, is tied to the question of regulatory interpretation.

[00:03:19] Speaker 01:
It is not tied to some independent judgment by the Veterans Court to determine whether or not it was necessary.

[00:03:28] Speaker 01:
Because when you read the entire language of the statute, the statute says that, uses the word, shall, when presented,

[00:03:38] Speaker 01:
It was presented.

[00:03:39] Speaker 04:
Sorry, I'm just going to repeat myself.

[00:03:41] Speaker 04:
To the extent necessary to this decision.

[00:03:44] Speaker 01:
That's correct, Your Honor.

[00:03:46] Speaker 01:
But that is conjunctive and tied together.

[00:03:50] Speaker 01:
It must be to the extent, or excuse me, when necessary and when presented.

[00:03:58] Speaker 01:
If Mr. Henderson had presented a factual argument and said that under these facts, the board was incorrect,

[00:04:07] Speaker 01:
that I believe that the Veterans Court could have said, to the extent necessary, we don't have to reach the question of regulatory interpretation.

[00:04:17] Speaker 01:
But the only question was a single question of regulatory interpretation, which was whether or not the board, in conducting its de novo review of the denial of clear and unmistakable error, had made a legal error when it failed to correctly apply and correctly interpret

[00:04:37] Speaker 01:
the provisions of the regulation that allowed the VA to reduce the amount of compensation.

[00:04:44] Speaker 04:
Can I check something with you?

[00:04:47] Speaker 04:
Is it your view that in this appeal, the one right now in front of us, we do not have jurisdiction to address the meaning of the underlying regulation?

[00:04:59] Speaker 01:
No, Your Honor, I believe under this court's case law you do, because this court's case law says that if an issue was not addressed below but was presented, then it is within this court's jurisdiction to address that question.

[00:05:13] Speaker 04:
Even when the ground of decision by the Veterans Court did not depend on an implied answer to that question?

[00:05:23] Speaker 01:
that is a well i i think the answer to that question is yes but that can't possibly be the conclusion this case because the court clearly said they didn't need to reason raise it to the excuse me resolve it because that even if the board had done so that

[00:05:42] Speaker 01:
They were allowed, under an interpretation of the regulation, to consider the evidence that was not to be considered by the expressed language used by the secretary in his own regulation.

[00:05:57] Speaker 03:
I'm sorry.

[00:05:58] Speaker 03:
I got completely lost in that response.

[00:06:01] Speaker 03:
It's clear that the Veterans Court did not engage in any kind of regulatory interpretation because it felt it did not need to.

[00:06:09] Speaker 03:
It felt like there was an alternate route to resolve the case because, in its view, the board had alternative holdings.

[00:06:17] Speaker 03:
Are you saying, even though we have assumed for the moment that the Veterans Court did not do any kind of interpretation of 3.22a, are you saying we still can engage in that and make a ruling on the regulatory interpretation?

[00:06:36] Speaker 03:
Without the Veterans Court having reached it?

[00:06:39] Speaker 01:
Yes, because this court's own case law, in a presidential opinion, has said that if the Veterans Court chooses not to address an issue,

[00:06:48] Speaker 01:
that was presented, that this court still has jurisdiction to address that issue.

[00:06:53] Speaker 05:
Well, your brief at its conclusion in blue does allow for our deciding it or remanding it to a CABC, which decided in the first instance.

[00:07:04] Speaker 01:
That's correct, Your Honor.

[00:07:05] Speaker 04:
What is the precedential decision or decisions that you were referring to?

[00:07:08] Speaker 04:
I'm sorry, Your Honor.

[00:07:09] Speaker 01:
I'm going to have to.

[00:07:10] Speaker 04:
I'm sorry.

[00:07:10] Speaker 04:
No, no.

[00:07:11] Speaker 04:
I'm not speaking loudly enough.

[00:07:12] Speaker 04:
You said, our precedent allows us to reach an issue not decided by the Veterans Court, even implicitly, as long as it was presented.

[00:07:25] Speaker 01:
Yes.

[00:07:25] Speaker 01:
And I'm sorry, I'm going to have to submit that.

[00:07:29] Speaker 01:
Your Honor, off the top of my head, I've just gone completely blank as to the case citation for that.

[00:07:36] Speaker 01:
But I am confident that there is such a

[00:07:38] Speaker 01:
case that makes that holding, where the issue was presented to the Veterans Court, and the Veterans Court chose not to address it, that this court exercised jurisdiction on the basis that it had been presented.

[00:07:55] Speaker 04:
Well, maybe this is then an opportune time for me to suggest that I find the interpretation of the regulation that you're presenting

[00:08:08] Speaker 04:
either clearly wrong or just shy of clearly wrong, but in any event wrong.

[00:08:13] Speaker 04:
The language, whether it is determined upon the evidence of records who have existed at that time, seems to me to mean whether it is determined in this proceeding

[00:08:24] Speaker 04:
on the evidence of record in this proceeding, namely the board proceeding or the RO proceeding, to have existed at the earlier time.

[00:08:33] Speaker 04:
Not anything about the record that was before the military entrance officials.

[00:08:41] Speaker 01:
But the problem, Your Honor, is that this regulation pertains to a specific and narrow class of awards in which the award was based upon an aggravation of a pre-existing condition in service.

[00:08:58] Speaker 01:
There was no finding made in the original decision that there was a pre-existing condition.

[00:09:05] Speaker 01:
The entirety of the discussion in the decision that's being challenged for Q was about what the service department found.

[00:09:14] Speaker 01:
And the service department's finding was not a finding made by the VA in the rating decisions challenge that there was a pre-existing condition.

[00:09:28] Speaker 01:
More importantly, in the language of this regulation, it addresses disabilities.

[00:09:34] Speaker 01:
And therefore, it is not sufficient to simply attribute globally to the notion that there is a condition that may have preexisted service.

[00:09:47] Speaker 01:
And in this case, the only evidence that there was was that he went to family counseling.

[00:09:54] Speaker 01:
In the actual examination report.

[00:09:57] Speaker 03:
Check the box that said, yes, he has been examined for a mental condition through this thing.

[00:10:01] Speaker 01:
That's right.

[00:10:02] Speaker 01:
And that's a layperson's understanding that going to counseling constitutes a consultation for a mental illness.

[00:10:10] Speaker 03:
In any event, getting back to your lead argument, what if we disagree with you?

[00:10:17] Speaker 03:
in your legal position that the Veterans Court must address a proposed regulatory interpretation by a veteran in an appeal, even if there's an alternative way to resolve the veterans' appeal?

[00:10:32] Speaker 03:
Let's say we reject that.

[00:10:33] Speaker 03:
Yes.

[00:10:35] Speaker 03:
Where does that leave your case?

[00:10:37] Speaker 01:
As to the question of whether or not what the Veterans Court did in its alternative, which said even if the board erred,

[00:10:46] Speaker 01:
when it concluded that the regulation allowed them to consider evidence beyond that which was in the record when appellant entered the service, this error would be harmless.

[00:10:56] Speaker 01:
Now, I have two problems with that, Your Honor.

[00:10:59] Speaker 03:
And my understanding of the Veterans Court opinion is you reviewed your Veterans Court brief and found that there was no argument that you failed to address in any kind of meaningful way the board's alternative holding.

[00:11:11] Speaker 03:
that even if the board were to adopt your preferred interpretation of 3.222a, you still lose.

[00:11:22] Speaker 03:
And because the Veterans Court affirmed that holding, alternative holding, I don't know what's left for us to really look at.

[00:11:31] Speaker 03:
Because you never challenged that.

[00:11:34] Speaker 01:
Because the only basis, excuse me, I didn't mean it wrong.

[00:11:38] Speaker 01:
The only basis for that alternative scenario is to assume that the board relied upon an interpretation of this regulation.

[00:11:47] Speaker 01:
And if they relied upon an interpretation of this regulation, then it is necessary, contrary to the conclusion of the Veterans Court, that this be addressed.

[00:11:57] Speaker 03:
Because I think the problem I'm trying to get at is that in your

[00:12:02] Speaker 03:
brief to the Veterans Court, you didn't make any kind of separate argument challenging the alternative holding.

[00:12:09] Speaker 01:
That's correct, Your Honor.

[00:12:11] Speaker 01:
And we relied entirely on having presented a question of law, a question of regulatory interpretation, which we believe is required by the Veterans Court under 7261.

[00:12:22] Speaker 03:
And my point to the beginning of this particular colloquy was, I'm taking that away from you.

[00:12:29] Speaker 03:
That there is no requirement in the law that the Veterans Court must address the proposed regulatory interpretation, even when it doesn't have to on the facts of the case.

[00:12:39] Speaker 01:
Then the alternative holdings, both by the board and by the Veterans Court, are based upon factual determinations.

[00:12:47] Speaker 01:
And not the factual determinations.

[00:12:48] Speaker 03:
That we don't have jurisdiction to consider.

[00:12:51] Speaker 01:
Nor did the Veterans Court.

[00:12:52] Speaker 01:
And yet the Veterans Court made its own factual determinations in this case

[00:12:58] Speaker 01:
The Veterans Court said that it found that the board's error would be harmless, given the finding at the entrance report justified a rating adjustment.

[00:13:13] Speaker 01:
Right.

[00:13:13] Speaker 03:
That's the board's finding.

[00:13:14] Speaker 01:
No, it was not, Your Honor.

[00:13:16] Speaker 03:
There was no- Or did you make two alternative holdings?

[00:13:20] Speaker 01:
It did.

[00:13:20] Speaker 01:
But it didn't make that finding.

[00:13:23] Speaker 01:
It didn't rely upon the entrance report.

[00:13:26] Speaker 03:
I direct the court's attention to- You didn't raise this complaint to the Veterans Court.

[00:13:31] Speaker 01:
No, I did not try to because we did not, in my judgment, need to when we presented a single question of law as to what the proper interpretation was of this regulation.

[00:13:43] Speaker 01:
All the Veterans Court needed to do was to say, we agree that that

[00:13:48] Speaker 01:
with the interpretation relied upon by the board.

[00:13:51] Speaker 01:
If they had said that, then this court could take up directly the question of whether or not the interpretation of the regulation is correct.

[00:13:59] Speaker 01:
And if I can get back before my time expires to complete the response to Judge Toronto, the other piece that is missing in the interpretation that you articulated of this regulation as it was by the board

[00:14:13] Speaker 01:
was that this relates to a disability, and it relates to the rating of the disability, not the existence of a disability, but only to the rating of the disability.

[00:14:26] Speaker 01:
And in the language of the regulation, it says the rating will reflect only the degree of disability

[00:14:33] Speaker 01:
over and above the degree of disability existing at the time of entrance.

[00:14:38] Speaker 01:
Therefore, what must be determined was what was the degree of disability.

[00:14:44] Speaker 01:
In this case, the evidence of record from the entrance examination by the medical examiner was at page 17 of the appendix that there was no mental or psychiatric disorder noted.

[00:15:00] Speaker 01:
So if there was nothing noted at entrance, there is no basis to make an inference that something preexisted service based upon a later statement.

[00:15:12] Speaker 05:
I'm just looking at the reg.

[00:15:14] Speaker 05:
And it seems like the reg has two alternatives, right?

[00:15:17] Speaker 05:
Because they use the word or.

[00:15:18] Speaker 01:
Yes.

[00:15:19] Speaker 05:
Whether the particular condition, and this seems to be exactly what you're saying.

[00:15:22] Speaker 05:
You have to say whether the particular condition was noted at the time of entrance into active service.

[00:15:28] Speaker 01:
That's correct.

[00:15:28] Speaker 05:
And then it says or.

[00:15:30] Speaker 01:
Yes?

[00:15:31] Speaker 05:
So what follows has to be something different than what preceded it.

[00:15:37] Speaker 05:
And so when we're construing here, whether it is determined upon the entrance, upon the evidence of record to have existed at that time, it has to be something different than the preceding.

[00:15:51] Speaker 05:
Right?

[00:15:52] Speaker 05:
And how is it different?

[00:15:53] Speaker 05:
It seems to me you're arguing that the only thing allowed is whether the particular condition was noted at the time of entrance into active service.

[00:16:00] Speaker 05:
And I'm suggesting just by the structure of the sentence, they've got to allow something beyond that.

[00:16:06] Speaker 01:
I agree with that, Your Honor.

[00:16:07] Speaker 01:
And therefore, they must, if you will, produce evidence that existed at that time.

[00:16:14] Speaker 01:
And there was no evidence.

[00:16:16] Speaker 01:
in the original rating decision that identified the degree of Mr. Henderson's disability.

[00:16:25] Speaker 01:
The decision in this case granted the benefit.

[00:16:28] Speaker 01:
They found he was entitled to disability compensation.

[00:16:32] Speaker 01:
But misusing this regulation, they reduced that rating based upon evidence that didn't exist at the time.

[00:16:41] Speaker 01:
and exist at the time must refer to at the time of the entrance, not as to the evidence that was at least discussed by the board but not relied upon, which was what the examination found by the medical board when they put him out of service because of the condition of a major bipolar disorder, which never existed prior to the time of service.

[00:17:11] Speaker 05:
I didn't mean to catch you.

[00:17:13] Speaker 05:
You're well beyond your time.

[00:17:15] Speaker 05:
We will restore a rebuttal.

[00:17:17] Speaker 05:
Thank you very much.

[00:17:20] Speaker 00:
Please proceed.

[00:17:20] Speaker 00:
Good morning, mate.

[00:17:21] Speaker 00:
Please, the court.

[00:17:22] Speaker 00:
As an initial matter, I would like to point out that the interpretation of the regulation that the board made its secondary finding upon, i.e., looking only at the evidence that was created at the time the veteran entered service, as opposed to the later evidence indicating that he had experienced some symptoms during high school, that was the interpretation that Mr. Henderson was proposing to the board.

[00:17:43] Speaker 00:
He was arguing to the board that they should only rely upon evidence that was created when he entered service.

[00:17:48] Speaker 00:
The board took that into account and said, even though we disagree with their interpretation of the regulation, as some of the court's questions indicated,

[00:17:56] Speaker 00:
We, nevertheless, find that even accepting the interpretation that they proffer to us, there is sufficient evidence on the record such that a reasonable arbiter could determine that there was indication that this condition existed prior to entry into service, particularly in the context of a Q claim, which, of course, requires that the error be undebatable and that it would have manifestly changed the outcome.

[00:18:20] Speaker 00:
That is simply not enough information.

[00:18:22] Speaker 00:
That is not a sufficient reason for this court to overturn the veteran court's decision.

[00:18:26] Speaker 00:
And I think that Mr. Carpenter referred to the fact that had the board been making the determination based on particular facts as opposed to a regulatory interpretation, then- Don't someone know, just based on a notation of family counseling in a medical history report, that that person has a 10% psychiatric disorder?

[00:18:50] Speaker 00:
Right, so the regional offices decision was based on the entirety of the record evidence, which again, the secretary's position is that that is consistent with the regulation.

[00:19:00] Speaker 00:
So it was based on that notation, answering the question of mental condition.

[00:19:04] Speaker 03:
Record as a whole, I get it.

[00:19:04] Speaker 03:
But the only thing in that record as a whole was that one notation of family counseling.

[00:19:08] Speaker 00:
But no, in addition, Riaro took into account the information gathered during the veteran's hospitalization, where he indicated that he had had periods of hypo... You're talking about all that other post-entrance evidence.

[00:19:22] Speaker 03:
I'm just talking about...

[00:19:24] Speaker 03:
the evidence that existed at the time he entered into service.

[00:19:28] Speaker 03:
It's just the family counseling notation, right?

[00:19:31] Speaker 00:
Yes, and of course answering questions.

[00:19:33] Speaker 03:
That's why I was wondering, okay, how could someone so confidently conclude that someone is suffering from a psychiatric disorder at a 10% level of disability?

[00:19:45] Speaker 00:
Right.

[00:19:46] Speaker 00:
But again, the RO relied on all of the record evidence, including the interviews given during the hospitalization indicating that.

[00:19:52] Speaker 02:
I'm just talking about the alternative holding.

[00:19:53] Speaker 00:
Understood.

[00:19:54] Speaker 00:
Understood.

[00:19:55] Speaker 00:
And that was the board's alternative holding, where, yes, the board did first walk through the regulation.

[00:19:59] Speaker 03:
That's getting back to my question.

[00:20:01] Speaker 03:
How could anybody collude based on that notation that, aha, yes, this person has a psychiatric disorder, a bipolar disorder, and we're going to rate it at a 10% problem?

[00:20:15] Speaker 00:
Right.

[00:20:16] Speaker 00:
Well, the board made the determination, the factual determination, applying the facts of this case to the law at issue.

[00:20:22] Speaker 00:
And I believe it's, well, the Veterans Court explains it well on page six of the appendix, where they explain that

[00:20:33] Speaker 00:
The board separately explained that the RO in 1990 had evidence from appellants entering a service that justified a rating reduction, and therefore the outcome would not have manifestly changed.

[00:20:42] Speaker 00:
The board explained that the appellant's disagreement with the weighing of this evidence could not give rise to a valid Q claim.

[00:20:47] Speaker 00:
And so again, to the court's question, I understand

[00:20:50] Speaker 00:
The board made the determination that there was sufficient evidence based on the record that a reasonable adjudicator could find that there was a pre-existing condition to some extent, even setting aside the evidence that was created after he entered into service.

[00:21:01] Speaker 02:
Maybe the first answer to my question is we don't have jurisdiction to answer my question.

[00:21:07] Speaker 00:
To a certain extent, Your Honor, yes, I believe that is true.

[00:21:09] Speaker 00:
Because it is a question of applying facts to the law that was applied here.

[00:21:16] Speaker 00:
And so yes, that is outside of this court's jurisdiction.

[00:21:18] Speaker 04:
I guess part of what I'm hearing now is that this alternative ground that the board decided on was not limited to the

[00:21:36] Speaker 04:
evidence from entrance and previous entrance, that even on the alternative grounds, the board, like I think I'm hearing you saying, the RO, relied on later evidence.

[00:21:52] Speaker 00:
Is that right?

[00:21:54] Speaker 00:
Perhaps I misspoke, Your Honor.

[00:21:55] Speaker 00:
So the regional office made its initial determination in 1990.

[00:22:00] Speaker 00:
The board decision, of course, was in 2017 after this was revived as a Q claim.

[00:22:04] Speaker 00:
The board decision then, and I'm reading from page appendix 97, does say, a reasonable mind could find that the need for counseling prior to service is sufficient evidence that the veteran's pre-existing acquired psychiatric disability was at least mild in severity at the time of service entrance.

[00:22:19] Speaker 00:
Thus, the argument that there was no evidence at the time of the veterans' entrance into service upon which the pre-service disability level could have been ascertained is effectively nothing more than a disagreement with how the facts are weighed and evaluated, which is explicitly not cue under the relevant law.

[00:22:35] Speaker 04:
So the board did make a specific alternative finding that just the- And that alternative finding is truly independent of the regulatory dispute.

[00:22:44] Speaker 00:
Yes, yes.

[00:22:45] Speaker 04:
Can I ask you the same question I asked Mr. Carpenter?

[00:22:48] Speaker 04:
Certainly.

[00:22:50] Speaker 04:
Do we have jurisdiction to decide the proper interpretation of the regulation in this appeal?

[00:23:01] Speaker 00:
I believe that the court can have jurisdiction to that issue.

[00:23:04] Speaker 00:
The 28-J letter that Mr. Henderson filed cited the slaughter decision from just a couple months ago in this court.

[00:23:09] Speaker 00:
There, in the context of a harmless error analysis, this court did take a look at the varying diagnostic codes under which the veteran had been rated and under which he was arguing to have been rated.

[00:23:18] Speaker 00:
And even though that was not a question the Veterans Court had reached, in the context of finding there was no harmless error in the veteran court's application of the law to that circumstance, this court did evaluate the diagnostic codes and determined that the VA's actual analysis of them was correct.

[00:23:36] Speaker 00:
I do believe that would be within this court's discretion if they wanted to reach the question of the regulatory interpretation.

[00:23:44] Speaker 00:
However, they do not necessarily need to, because the actual finding of the Veterans Court was hinged only on the harmless error.

[00:23:50] Speaker 00:
And of course, one of the major cue factors is whether or not it would have manifestly changed the outcome, which is specifically the finding that the Veterans Court made.

[00:23:58] Speaker 00:
That because the question here is the application of the evidence on the record, even if it is just looking at the rather narrow evidence just from the entrance paperwork, that is a factual question as to whether or not that is enough evidence to support the 10% reduction in rating.

[00:24:16] Speaker 04:
Besides slaughter, do you have any other precedent from this court that would permit us to reach this underlying regulatory interpretation question on the assumption, which I think you agree with, that the alternative ground doesn't actually depend in any way on an answer to that question?

[00:24:42] Speaker 00:
I do not know off the top of my head, Your Honor.

[00:24:44] Speaker 00:
Obviously, that was not an issue that was briefed by the parties here.

[00:24:48] Speaker 00:
But I would be happy to submit additional authority to that extent.

[00:24:54] Speaker 03:
So even though it might be just academic for purposes of this argument, could you talk to us about the merits of the board's interpretation that the Veterans Court did not rely on for 3.222a, specifically the phrase

[00:25:10] Speaker 03:
determined upon the evidence of record to have existed at that time?

[00:25:14] Speaker 00:
Yes.

[00:25:14] Speaker 03:
Just reading that in isolation, it sounds like it's talking about the evidence that existed at the time of entrance into service.

[00:25:24] Speaker 03:
But tell me why that's not right.

[00:25:26] Speaker 00:
Certainly, Your Honor.

[00:25:27] Speaker 00:
So the full context of the full language, and I apologize.

[00:25:32] Speaker 00:
Let me find it in my brief here.

[00:25:33] Speaker 00:
That second sentence is, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence.

[00:25:43] Speaker 03:
I'm sorry.

[00:25:44] Speaker 03:
You dropped me.

[00:25:45] Speaker 03:
Can you bring me back?

[00:25:46] Speaker 03:
Where are you in the line?

[00:25:47] Speaker 00:
I'm just reading from the regulation, 3.322A.

[00:25:50] Speaker 00:
OK.

[00:25:51] Speaker 03:
I'm here.

[00:25:52] Speaker 00:
And my point was only that the clause that we're talking about starts with whether the particular condition was noted at the time of entrance.

[00:25:59] Speaker 00:
or whether it, again, I believe it is referring to the particular condition, not the evidence that existed, whether it is determined.

[00:26:06] Speaker 04:
It isn't.

[00:26:08] Speaker 04:
It is determined is just a passive way of saying the board is determining.

[00:26:13] Speaker 04:
Right.

[00:26:14] Speaker 04:
And it is determined.

[00:26:15] Speaker 04:
And it uses the present tense, is not was, which is a contrast, which is why

[00:26:19] Speaker 04:
I thought your argument was, and the board's argument was, the two have existed at the time doesn't go with evidence of record.

[00:26:27] Speaker 04:
It goes with the determinant.

[00:26:30] Speaker 04:
It is determined to have existed.

[00:26:32] Speaker 04:
That's what is being determined.

[00:26:34] Speaker 04:
And when it's being determined is now, hence the is.

[00:26:37] Speaker 04:
And what it's determined on is what the determiner has in front of it, namely the evidence of record.

[00:26:44] Speaker 00:
Yes, Your Honor, yes.

[00:26:44] Speaker 00:
And we agree with the board adopted the veteran agency's interpretation of the regulation, agreeing with the idea.

[00:26:52] Speaker 00:
And this is consistent with the entire framework of the veterans benefits analysis, where you don't just look at the entrance paperwork.

[00:26:59] Speaker 00:
For example, 38 USC 7104A discusses

[00:27:06] Speaker 00:
that decisions of the board should be based on the entire record in the proceeding and upon consideration of all evidence and material of record.

[00:27:12] Speaker 00:
38 USC 5107A says that the board shall consider all information lay and medical evidence.

[00:27:19] Speaker 00:
And so the board's reading of the interpretation of the regulation as permitting consideration of evidence just that was created at the entry into service, but then also evidence from later on in service that indicates that that condition may have existed or did exist prior to entry into service,

[00:27:34] Speaker 00:
All of that can be considered by the regional office in reaching its determination.

[00:27:39] Speaker 00:
And again, we believe that that is consistent with the regulations directing the way that the VA and the board and the regional offices determine and make their determinations, because they don't just look at entry documentation.

[00:27:52] Speaker 04:
Can I ask this question?

[00:27:53] Speaker 04:
So the Veterans Court said we're going to rely on the alternative ground.

[00:27:57] Speaker 04:
Maybe it's just projection on my part.

[00:28:00] Speaker 04:
I had a sense the Veterans Court was reluctant in some way to decide the regulatory interpretation question.

[00:28:09] Speaker 04:
Why?

[00:28:11] Speaker 00:
I don't know that I would say it was reluctance, Your Honor.

[00:28:13] Speaker 00:
I think that it's a vision of the Veterans Court being narrow in what they need to decide.

[00:28:18] Speaker 00:
As we discussed earlier, I believe Judge Crost referred to it as potentially an advisory opinion if they do not actually need to reach the issue of regulatory

[00:28:25] Speaker 00:
interpretation, but rather can address it on the harmless error grounds, which is, of course, what they did here.

[00:28:30] Speaker 00:
And particularly, again, in a Q context, where there is a very narrow pathway for a veteran to challenge a decision, which was, at this point in time, nearly 30 years old, the Veterans Court made the determination that it simply did not need to get there.

[00:28:45] Speaker 04:
Does this regulatory interpretation question arise with some regularity?

[00:28:52] Speaker 00:
Your Honor, I did do legal research to determine whether or not it had been interpreted before by the Veterans Court.

[00:28:58] Speaker 00:
I believe it has not been mentioned in any decisions by this court.

[00:29:01] Speaker 00:
The Veterans Court has addressed it in decisions occasionally.

[00:29:04] Speaker 00:
The specific question as to whether or not it is limited only to evidence created at entrance as opposed to later on, to my understanding, has not been the subject of a decision by the Veterans Court.

[00:29:16] Speaker 00:
However, I think that's likely because the language of the regulation is pretty clear and, again, consistent with the entire framework

[00:29:22] Speaker 00:
the way that the Veterans Administration makes determinations.

[00:29:26] Speaker 00:
It's consistent that they look at all evidence in the record, not just some sort of temporal limitation, which is, I believe, the way the board discussed it.

[00:29:36] Speaker 00:
He said, and this is from appendix page 95,

[00:29:39] Speaker 00:
The board finds that to read or whether it is determined upon the evidence of record to have existed at that time as having such a temporal limitation slash evidentiary cutoff that is consistent with both the statutory and regulatory scheme of the VA disability compensation.

[00:29:54] Speaker 00:
So I think it has not been the subject of a specific decision by the Veterans Court, but I think that's likely because the language is not particularly unclear.

[00:30:02] Speaker 00:
It's pretty obvious that it permits them to review all of the record evidence.

[00:30:06] Speaker 00:
to determine the extent of the aggravation with regard to pre-existing condition.

[00:30:20] Speaker 00:
Just briefly,

[00:30:23] Speaker 00:
We set this forth in our brief, but the actual theory that Mr. Henderson is advancing at this stage is quite different from what he actually advanced to the board and to the Veterans Court.

[00:30:34] Speaker 00:
And I would just like to put a couple of record sites on the record for the court's notice.

[00:30:39] Speaker 00:
Specifically, the notice of disagreement with the regional officer decision, which is at appendix page 52.

[00:30:46] Speaker 00:
Appellant wrote, the application of 3.322A has nothing to do with the presumption of soundness.

[00:30:52] Speaker 00:
Their statement of the case describing what they were asking the Veterans Court to opine upon, which is on Appendix page 107, reads, the issue is whether this phrase, which is the language in 3.22A,

[00:31:04] Speaker 00:
limits the VA from considering evidence other than that which existed at the time of entrance into active service.

[00:31:09] Speaker 00:
So to the extent Mr. Henderson's briefing before this court seems to get into the question of the presumption of soundness and having not been rebutted by the Veterans Court or by the Board or by the Veterans Court on the record, that is inconsistent with the actual issue that they raised for the cue consideration before the lower bodies.

[00:31:29] Speaker 00:
And of course, in accordance with this court's many decisions, including Andre from 2002, every specific cue claim needs to be the subject of a specific lower question answered by the Veterans Court.

[00:31:44] Speaker 00:
I'm almost out of time.

[00:31:45] Speaker 00:
If there are no further questions from the court.

[00:31:47] Speaker 05:
Thank you.

[00:31:47] Speaker 00:
Thank you.

[00:31:48] Speaker 05:
We'll restore three minutes of recording.

[00:31:54] Speaker 01:
Please record.

[00:31:56] Speaker 01:
I agree with Judge Toronto that the question under this regulation is what is to be determined.

[00:32:04] Speaker 01:
And I believe what was overlooked by the Board, by the Veterans Court, and now by the government in its argument is that what was to be determined was the degree of disability

[00:32:16] Speaker 01:
That is the language used in the regulation, because what we're talking about only in this regulation is not entitlement to the benefit.

[00:32:24] Speaker 04:
I'm not sure there's any dispute that that's what is to be determined, whether the degree of disability existed at the time.

[00:32:32] Speaker 04:
Your entire argument is

[00:32:34] Speaker 04:
is about on what basis can that determination be made?

[00:32:39] Speaker 04:
And you want to say it's either, it's certainly nothing later than the entrance, evidence that existed at the entrance.

[00:32:48] Speaker 04:
You want to actually narrow it even further, but that's the dispute.

[00:32:54] Speaker 04:
There's no dispute about what has to be determined.

[00:32:56] Speaker 01:
Well, Your Honor, I believe there is because the government suggests that there was a determination made

[00:33:03] Speaker 01:
There was no determination made by the board as to the degree of disability, just as there was no determination made in the original decision.

[00:33:14] Speaker 01:
There was simply an arbitrary adoption by the original decision that the service department had reduced, therefore we will reduce.

[00:33:23] Speaker 01:
That is not a determination of the degree of disability.

[00:33:26] Speaker 01:
The board made no such determination.

[00:33:29] Speaker 01:
The board in its decision

[00:33:31] Speaker 01:
did review the evidence that existed.

[00:33:34] Speaker 01:
It never then said, and we find that the degree of disability that existed was 10%.

[00:33:41] Speaker 01:
It was never stated.

[00:33:45] Speaker 01:
As Judge Prose correctly pointed out, in the final phrase of this regulation, there are two alternatives, either that it was noted

[00:33:52] Speaker 01:
or that there was evidence.

[00:33:54] Speaker 01:
There is no evidence.

[00:33:56] Speaker 01:
As Judge Chin correctly pointed out, the only evidence is the reference to family counseling.

[00:34:03] Speaker 01:
That is not possible to make a determination that because one attended family counseling prior to service, that at the time of entrance,

[00:34:13] Speaker 01:
That showed mild symptoms.

[00:34:16] Speaker 01:
Mild symptoms are not what is required to be evaluated.

[00:34:21] Speaker 01:
It is the degree of disability.

[00:34:23] Speaker 01:
And yes, while you use the symptoms to determine the degree of disability, you cannot determine the degree of disability retrospectively by a reference by the veteran during a medical exam with a medical board to be discharged as evidence at the time.

[00:34:43] Speaker 01:
There was no evidence at the time that he entered service, that he had any mental disorder whatsoever.

[00:34:51] Speaker 01:
And the examiner, the entrance examiner, said his psychiatric condition was normal.

[00:34:58] Speaker 01:
If it was normal, then it is not possible to find a degree of disability to something that does not exist.

[00:35:08] Speaker 01:
Please, Court.

[00:35:08] Speaker 01:
Thank you very much.

[00:35:09] Speaker 05:
Thank you.

[00:35:09] Speaker 05:
We thank both sides, and the case is submitted.