[00:00:01] Speaker 02:
And our final case of the morning is number 22, 13, 14, Jackson versus McDonough.

[00:00:11] Speaker 02:
Okay, Mr. Brown.

[00:00:13] Speaker 04:
May it please the Court, Your Honor.

[00:00:17] Speaker 04:
I'm going to begin with an apology to the Court.

[00:00:21] Speaker 04:
And when I was preparing for oral arguments, I found that what was written in my reply brief in a footnote

[00:00:31] Speaker 04:
on page two is not correct.

[00:00:36] Speaker 04:
So I'm starting by using my time to point out my mistake.

[00:00:43] Speaker 04:
And in my reply brief, I essentially was citing the Federal Circuit's case of Diamond versus Principi.

[00:00:52] Speaker 04:
And I said that the word substantial doesn't appear in the case.

[00:00:57] Speaker 04:
And I don't understand why the computer check didn't find it.

[00:01:01] Speaker 04:
But when I was preparing for the case to do my arguments today, I saw that the word does appear two times.

[00:01:09] Speaker 04:
So I just wanted to point that out.

[00:01:12] Speaker 04:
And I thought I had an ethical obligation to do so.

[00:01:16] Speaker 02:
Okay, thank you.

[00:01:16] Speaker 02:
But let's get to the heart of the matter here.

[00:01:20] Speaker 02:
Yes, sir.

[00:01:21] Speaker 02:
I know you can argue about the standard that was applied here, but what in fact was wrong

[00:01:28] Speaker 02:
compliance with the remand order.

[00:01:30] Speaker 02:
In other words, in what respects was the remand order not complied with?

[00:01:36] Speaker 04:
In this case, Mr. Jackson was remanded by the Board of Veterans' Appeals to have a mental health

[00:01:49] Speaker 04:
examination so that an opinion could be made as to his sanity at the time of the misconduct, which led to his removal from the service.

[00:01:59] Speaker 04:
And if we look at... Well, they did that on the remand, didn't they?

[00:02:06] Speaker 04:
Your Honor, my argument would be, and I know we're arguing about facts here, but my argument would be, in this case, that it was inadequate.

[00:02:14] Speaker 04:
And that was the argument that was made to the Board in my letter.

[00:02:19] Speaker 02:
I understand we're not here to decide facts, but I think we need to, as a background principle, we have to see whether it would make any difference what the standard was.

[00:02:31] Speaker 02:
Yes, sir.

[00:02:31] Speaker 02:
In fact, it was for compliance with the remittance order.

[00:02:35] Speaker 04:
So the actual report starts at page 478 of the appendix.

[00:02:40] Speaker 04:
And in the report, the doctor, who is a contractor,

[00:02:48] Speaker 04:
She provided what's called a disability benefits questionnaire, which is a standard form issued by the Veterans Aid Administration to practitioners.

[00:02:59] Speaker 04:
And she provided a mental health opinion and the disability benefits questionnaire.

[00:03:07] Speaker 04:
And essentially in the law, a medical opinion is of no,

[00:03:18] Speaker 04:
is to be given no credibility if it's based on an accurate factual premise.

[00:03:24] Speaker 04:
And this doctor said that there was never a mental health diagnosis on this veteran.

[00:03:33] Speaker 04:
And the fact that the doctor would say that there was never a mental health diagnosis flies in the face of all the treatment that he's been receiving from the VA

[00:03:44] Speaker 04:
for like 20 years of treatment.

[00:03:47] Speaker 00:
Where in here is the statement there was no mental health diagnosis?

[00:03:55] Speaker 02:
It's at the top of 479, isn't it?

[00:03:57] Speaker 02:
It says there is not a current medical diagnosis.

[00:04:02] Speaker 04:
Let me flip to that, Your Honor.

[00:04:05] Speaker 04:
OK.

[00:04:07] Speaker 04:
So it looks like it's page 481 is the start of the disability justice questionnaire.

[00:04:13] Speaker 04:
Now, 482, under section 2, 2A, does the veteran have more than one mental health disorder?

[00:04:20] Speaker 04:
No.

[00:04:21] Speaker 04:
Does the veteran have a diagnosed brain injury?

[00:04:23] Speaker 04:
No.

[00:04:26] Speaker 04:
No mental, under section 3, no mental disorder diagnosis.

[00:04:35] Speaker 00:
So those are in the present tense, right?

[00:04:37] Speaker 00:
Does that make a difference or make no difference to your point?

[00:04:42] Speaker 04:
Well, and that was my argument in my brief to the Veterans Court, was that this doctor focused only on the present.

[00:04:51] Speaker 04:
And basically, within the written portion of the doctor's exam, the doctor says, well, he was treated for his PTSD, and it's now in remission.

[00:05:07] Speaker 02:
I'm not seeing this as a failure to comply with the remand order.

[00:05:11] Speaker 02:
It may be an argument that the evidence doesn't support the government's position, but that's a different issue.

[00:05:17] Speaker 02:
I mean, the remand order asks that the RO or whatever it is that the examiner address this question.

[00:05:26] Speaker 02:
The examiner addressed the question, but you're not, it seems to me, arguing that the examiner failed to address the question,

[00:05:37] Speaker 02:
he or she got the wrong result.

[00:05:43] Speaker 04:
Your Honor, my argument to the Veterans Court was that this was an inadequate examination and it should be remanded for an adequate examination.

[00:05:55] Speaker 03:
And you lost that, and that's application of a lot of fact or factual that we can't review, which is why you're not making it.

[00:06:02] Speaker 03:
here, right?

[00:06:03] Speaker 03:
Yes, Your Honor, and that's why I'm just trying to... But you're trying to make an argument that the remand wasn't substantially complied with, but there's two questions the board told them to answer, and this examination answers those two questions, right?

[00:06:22] Speaker 04:
Your Honor, that's what Judge Allen said when he... I think he used the word precisely.

[00:06:29] Speaker 04:
was his words, and I think that that's what the government's brief also.

[00:06:33] Speaker 03:
Well, are you saying that this document doesn't answer those two questions?

[00:06:37] Speaker 03:
I know you disagree with the answer, but it answers them.

[00:06:41] Speaker 03:
Does it not?

[00:06:43] Speaker 03:
It answers those questions, Your Honor, but I think that the focus... So they complied.

[00:06:48] Speaker 03:
The board sent it back, said, get a medical examination, have the doctor answer these two questions.

[00:06:54] Speaker 03:
The doctor answered those two questions.

[00:06:56] Speaker 03:
Whatever standard

[00:06:58] Speaker 03:
substantial, complete, you know, whatever word Judge Allen used, they complied.

[00:07:04] Speaker 03:
What are we here about?

[00:07:06] Speaker 03:
How is your argument for a higher standard going to change this case?

[00:07:12] Speaker 03:
Because your argument is not really with the compliance.

[00:07:15] Speaker 03:
Your argument is with the sufficiency of this examination and whether it supports the outcome.

[00:07:21] Speaker 03:
But that's a question for the Veterans Court, isn't it?

[00:07:28] Speaker 03:
When I did my assessment of this case and I looked, I don't know that... Sorry, I ask a bunch of questions in that speech.

[00:07:38] Speaker 03:
Can you answer what I started with was, why isn't this compliance under any standard?

[00:07:45] Speaker 03:
There were two questions that the doctor was asked to order.

[00:07:49] Speaker 03:
And as I read it, the doctor answered both of those questions.

[00:07:55] Speaker 03:
Do you think the doctor didn't answer those questions?

[00:08:00] Speaker 03:
I think the doctor relied on an inaccurate factual premise.

[00:08:05] Speaker 03:
That's not answering my question.

[00:08:06] Speaker 03:
There was two specific questions.

[00:08:08] Speaker 03:
Did the doctor answer those questions?

[00:08:11] Speaker 03:
Not whether you think the answers were correct or not.

[00:08:14] Speaker 03:
Did the doctor answer those specific questions?

[00:08:17] Speaker 03:
Yes.

[00:08:20] Speaker 03:
How is that not compliance?

[00:08:28] Speaker 04:
There is no, first of all, there's no direction from this court in precedent that says what the standard is.

[00:08:36] Speaker 03:
So I get it.

[00:08:38] Speaker 03:
Look, you know, you have an argument that it has to be more than 600 compliance.

[00:08:44] Speaker 03:
That may be a legal argument.

[00:08:46] Speaker 03:
How does it matter in this case?

[00:08:49] Speaker 03:
You just agreed that the doctor complied with the remand.

[00:08:54] Speaker 03:
You don't like the doctor's opinion.

[00:08:56] Speaker 03:
You don't think it's adequate.

[00:08:57] Speaker 03:
You don't think it's based on the correct information.

[00:09:01] Speaker 03:
But that doesn't go to compliance.

[00:09:02] Speaker 03:
That goes to the weight and whether it's a reliable opinion.

[00:09:06] Speaker 03:
But if the doctor complied and answered the two specific questions, isn't that compliance under any standard?

[00:09:14] Speaker 04:
Your Honor, the doctor was tasked with deciding whether he was sane at the time of his

[00:09:23] Speaker 04:
misconduct.

[00:09:25] Speaker 04:
And in this case, the doctor didn't focus on that.

[00:09:29] Speaker 03:
Well, are you sure?

[00:09:30] Speaker 03:
Because at 479 at the top of the page, it says, under VA regulations, veteran was not insane at the time he committed the acts that led to his discharge.

[00:09:40] Speaker 03:
Isn't that precisely what you just said he didn't respond to?

[00:09:49] Speaker 04:
Well, I just read that paragraph.

[00:09:50] Speaker 04:
What it says is the veteran does not have a current mental disorder diagnosis that meets DSM criteria.

[00:09:56] Speaker 03:
So if we read that... Well, that's the first sentence, but the second sentence is different.

[00:10:01] Speaker 03:
Veteran was not insane at the time he committed the acts that led to his discharge.

[00:10:06] Speaker 03:
It's answering two different questions.

[00:10:08] Speaker 03:
Maybe he should put it in two different paragraphs, but this has said he's not insane now and he wasn't insane then.

[00:10:16] Speaker 04:
But if we read that together with the paragraph where they talk about the fact that he was in treatment for years and then was put into remission, I think that the doctor is missing the point.

[00:10:30] Speaker 04:
And the point here is that this man had PTSD and he was in treatment and continues to be in treatment.

[00:10:41] Speaker 04:
And this doctor focused on the present.

[00:10:45] Speaker 04:
and then said, because he's sane in the present, he was sane in the past.

[00:10:51] Speaker 04:
And that's an inaccurate factual premise.

[00:10:55] Speaker 04:
And in this case, this doctor should be considered inadequate.

[00:11:01] Speaker 03:
So when I... Let me ask you this.

[00:11:03] Speaker 03:
That sentence I just pointed to you to, the second sentence.

[00:11:06] Speaker 03:
If we read that sentence as the doctor saying, he was not insane at the time,

[00:11:12] Speaker 03:
he committed the acts that led to his discharge as an assessment of his sanity in the past.

[00:11:23] Speaker 03:
Does that comply with the remand order?

[00:11:26] Speaker 04:
Yes.

[00:11:32] Speaker 04:
So in order to preserve this veteran's case, I did research and I saw that all of the precedent

[00:11:42] Speaker 04:
that talks about what is and is not considered compliance with Stigall, which of course Stigall is a Veterans Court case.

[00:11:52] Speaker 03:
I get what you're saying.

[00:11:53] Speaker 03:
I mean, you possibly come up with a legal issue within our jurisdiction, but if it doesn't matter to the facts of this case, it doesn't matter.

[00:12:10] Speaker 04:
We don't get to

[00:12:14] Speaker 04:
appeal the facts and that's because Congress said so and we don't agree with the outcome of the case.

[00:12:22] Speaker 04:
So we look to the only thing that allows us to continue with our appeal and of course the fact is there is no precedent at this level and it looks to me like there's an erosion within the Veterans Court from Stigall going forward.

[00:12:40] Speaker 04:
So Stigall says the veteran should expect a right

[00:12:44] Speaker 04:
And that right produces a duty.

[00:12:48] Speaker 04:
And so that's the height and the most... Can I just ask you one more question?

[00:12:53] Speaker 03:
Even if we agree that there's a higher standard here, if we determine that standard was met, isn't it a harmless error?

[00:13:04] Speaker 03:
I mean, on the plain face of that document, if we determine it complied not just at some substantial level, but it complied

[00:13:13] Speaker 03:
totally, whatever words you're using, why would the legal determination have any bearing on the outcome in this case?

[00:13:27] Speaker 04:
In this case, the exam and the report itself are not adequate.

[00:13:35] Speaker 04:
And that's the argument.

[00:13:35] Speaker 03:
You're not answering my question.

[00:13:37] Speaker 03:
Hypothetically, let's assume that this exam meets the highest level of compliance.

[00:13:44] Speaker 03:
That's not mere substantial compliance, but it's complete and total compliance, which is what I think the legal standard you're arguing for is in some other words.

[00:13:53] Speaker 03:
If that is true, hypothetically, then making that legal determination has no bearing on the outcome of this case.

[00:14:06] Speaker 03:
you lose under the lower standard, you lose under the higher standard.

[00:14:11] Speaker 04:
But we get to make the argument, Your Honor, because the facts on remand get to go back before the judge.

[00:14:18] Speaker 04:
And it allows us to better argue these facts to this judge.

[00:14:24] Speaker 04:
And in this case, right now, he's out.

[00:14:29] Speaker 04:
If we get a remand and we get a doctor's opinion

[00:14:35] Speaker 04:
that doesn't have the conflict.

[00:14:37] Speaker 04:
And in this case, there's conflict with what's written in the report.

[00:14:40] Speaker 03:
You can always go get a new doctor's opinion and file a motion to reopen for new and material evidence.

[00:14:48] Speaker 04:
Yes, Your Honor.

[00:14:50] Speaker 04:
The Appeals Modernization Act gives us a lot of opportunities for this veteran.

[00:14:55] Speaker 04:
But right now, we're staying the course with our appeal at this level to work forward with our appeal so that

[00:15:04] Speaker 04:
We don't waive any of our arguments.

[00:15:08] Speaker 04:
And we make every argument we can so that we can best represent this veteran who we're trying to get benefits for.

[00:15:15] Speaker 04:
Because right now, the only benefits he gets is treatment.

[00:15:18] Speaker 04:
And he went to Vietnam.

[00:15:21] Speaker 04:
And he got in trouble in Vietnam a little bit.

[00:15:24] Speaker 04:
Minor stuff, being late for work or not showing up, things like that.

[00:15:29] Speaker 04:
Where he really got in trouble was when he got to Fort Plus, Texas, after he'd been in Vietnam.

[00:15:34] Speaker 04:
And that's when the real trouble began.

[00:15:37] Speaker 04:
So I'm just trying to help this man.

[00:15:41] Speaker 02:
I'm sure you are.

[00:15:42] Speaker 02:
Thank you.

[00:15:43] Speaker 02:
We'll give you a minute for a follow-up.

[00:15:46] Speaker 01:
Thank you, Honor.

[00:15:48] Speaker 02:
Ms.

[00:15:48] Speaker 02:
Cramer?

[00:15:50] Speaker 01:
May it face the court.

[00:15:52] Speaker 01:
I think it's absolutely right that the standard doesn't matter here.

[00:15:57] Speaker 01:
So can you help me then?

[00:15:59] Speaker 03:
I'm a little, I mean, how do we, what kind of judgment are you asking for then?

[00:16:06] Speaker 03:
Is it, we don't have jurisdiction?

[00:16:08] Speaker 03:
Because that standard question does seem like a legal interpretation that we have jurisdiction over, assuming it was properly raised and not forfeited and like.

[00:16:23] Speaker 03:
So we would have jurisdiction.

[00:16:25] Speaker 03:
But then, do we have jurisdiction to determine it was harmless error?

[00:16:31] Speaker 03:
Or if we decided that the higher standard had to be met, not saying that we would, but if we did, wouldn't we have to remand it to the Veterans Court to determine whether the higher standard was met?

[00:16:43] Speaker 03:
Or do you read the record in the Veterans Court judge's statement, which talks about, I forget what term he uses, as saying,

[00:16:52] Speaker 03:
You know, this does meet the higher standards.

[00:16:56] Speaker 01:
I do read the veteran's court decision to say that it precisely is the term that was used, complied with the remand.

[00:17:04] Speaker 00:
And you think that that's the higher standard as opposed, because precisely could mean technically, but there's actually a hyper-technical way because it answered the question as opposed to, it seems to me there are several different notions going on here.

[00:17:19] Speaker 00:
One is precisely meaning there was actually an answer to these questions.

[00:17:24] Speaker 00:
substantially could mean, well, not quite, but close enough.

[00:17:28] Speaker 00:
But there's yet a different thing playing around in the area, which is, does the requirement of compliance include an adequacy of analysis component?

[00:17:44] Speaker 00:
And I don't know, but I would, I guess, ask you whether the two paragraphs on 477 might support that.

[00:17:57] Speaker 00:
The rationale for all opinions expressed must be provided if the examiner is unable to offer any other requested opinions.

[00:18:05] Speaker 00:
clinician must offer a rationale and then not the clinician, but the RO has to review the opinion and address any inadequacies.

[00:18:21] Speaker 01:
Well, I would say that the opinion here was adequate.

[00:18:25] Speaker 01:
It answered the question.

[00:18:26] Speaker 00:
But the accusation is that it was not.

[00:18:29] Speaker 00:
The allegation is it rested on false premises.

[00:18:35] Speaker 00:
leading to an inadequate answer to the questions.

[00:18:46] Speaker 00:
The questions were about insanity at the time of the discharge or conduct leading to the discharge under the relevant statute and regulations.

[00:18:57] Speaker 01:
I'm sorry, can you rephrase the question?

[00:19:01] Speaker 00:
There is a sense in which the word precisely

[00:19:04] Speaker 00:
could mean, these questions ask whether the examiner, tell the examiner, say whether you think this person was insane at the relevant time.

[00:19:18] Speaker 00:
And if the answer is, suppose the examiner said, no, full stop, nothing more to say, not saying what I have looked at, just no, I don't think so.

[00:19:30] Speaker 00:
Do you think that that would be, that might be in fact a precise compliance with the remand order, depending on how you interpret the remand order, because it's a precise answer to the question.

[00:19:44] Speaker 00:
And one way of formulating the legal contention that is presented to us by Mr. Jackson is that something

[00:19:59] Speaker 00:
the basis for the answer is actually required to comply with a remand order.

[00:20:04] Speaker 01:
I think the board asked very specific questions, and those questions were answered.

[00:20:10] Speaker 01:
And I would say that this opinion does go into more depth than simply answering questions.

[00:20:15] Speaker 01:
It goes over his medical history, his history of alcohol use, et cetera.

[00:20:21] Speaker 01:
So it wasn't just a statement all by itself saying, no, he wasn't insane.

[00:20:29] Speaker 00:
Right, but if all we get to decide is what the legal standard is, then the question whether that legal standard is met by this action on remand, the medical opinion, would not be for us.

[00:20:49] Speaker 00:
That would be for our remand after we said what the legal standard is, unless we can conclude it is

[00:20:56] Speaker 00:
absolutely clear on the face of this opinion that any legal standard that we can think of would be met by this.

[00:21:05] Speaker 01:
I would agree that any legal standard would be absolutely clear on the face.

[00:21:12] Speaker 01:
The two questions were answered.

[00:21:13] Speaker 01:
The examiner went through his medical history in the opinion.

[00:21:18] Speaker 01:
I think under any standard, strict or substantial compliance, it would be met.

[00:21:28] Speaker 01:
If the court has no further questions, I'll sit with you.

[00:21:34] Speaker 02:
Okay, thank you.

[00:21:36] Speaker 02:
Mr. Brown, you have a minute here.

[00:21:55] Speaker 04:
It's Stigall at page 271.

[00:21:58] Speaker 04:
That's right now essentially the rule that says where the veteran has a right to expect compliance and the secretary bears the burden to ensure that it's done correctly.

[00:22:15] Speaker 04:
However, there is a paragraph there on that same page that does take account that there is a requirement of prejudicial error.

[00:22:26] Speaker 04:
I concede that prejudicial error is part of the Stigal.

[00:22:30] Speaker 04:
I see that in the writing.

[00:22:34] Speaker 04:
So it is my burden then to show prejudicial error to be able to keep the Stigal rights for my client and burden on the secretary.

[00:22:45] Speaker 04:
And I understand that.

[00:22:51] Speaker 04:
So I just ask that if the facts

[00:22:56] Speaker 04:
are determinative in the decision for my case today that the court look at essentially the remand instructions that begin on page 474 and end on page 477 versus what is here in the report from the contract doctor that begins at 478.

[00:23:26] Speaker 04:
So if prejudicial error is something that has to be considered, I think that's where the facts are.

[00:23:35] Speaker 04:
They are what they are.

[00:23:36] Speaker 04:
I can't change the facts.

[00:23:39] Speaker 04:
However, in this case, we're trying to get benefits for a person who served in the army in Vietnam, who came back, got in a lot of trouble, and was sent home.

[00:23:52] Speaker 04:
He hasn't been, he gets, it's all in the record.

[00:23:55] Speaker 04:
He gets social security, but he doesn't get veterans benefits other than treatment.

[00:24:01] Speaker 04:
And that's what we're trying to do here.

[00:24:03] Speaker 04:
So I just ask you please focus on those things.

[00:24:07] Speaker 04:
I think that's really all I have to say.

[00:24:09] Speaker 02:
Okay.

[00:24:10] Speaker 02:
Thank you, Mr. Brown.

[00:24:11] Speaker 02:
Thank you, Ms.

[00:24:11] Speaker 02:
Bramley.

[00:24:12] Speaker 02:
The case is submitted.

[00:24:13] Speaker 02:
That concludes our session for this morning.