[00:00:00] Speaker 03:
The next case for argument is 21-1940, Koopmans v. McDonough.

[00:00:07] Speaker 03:
Thank you for waiting, so take your time getting it set up.

[00:00:11] Speaker 03:
Good morning.

[00:00:12] Speaker 03:
Mr. Carpenter, please proceed.

[00:00:13] Speaker 00:
Good morning, Your Honor.

[00:00:14] Speaker 00:
May it please the Court, Kenneth Carpenter, appearing on behalf of Mr. John Koopmans.

[00:00:19] Speaker 00:
Mr. Koopmans' appeal deals with whether or not the Veterans Court made a clear error of law by relying upon the Secretary's proffered post

[00:00:29] Speaker 00:
hawk rationalization that the existence of a rebuttable presumption had some effect on the way in which the Q claim was both presented and defended both before the board and in his appeal to the Veterans Court.

[00:00:45] Speaker 00:
There is no relevance to the fact that the presumption that Mr. Koopsman relies upon is rebuttable.

[00:00:53] Speaker 03:
Additionally, the court- Did your client put on before the board of the CAVC, was there an indication put on that covered, that we're not B?

[00:01:03] Speaker 03:
We're under A and we're not covered by any of the exemptions in B. Was that his argument or did he just rest on A?

[00:01:12] Speaker 00:
He just rested on A because he did not believe that since the regulation required the application of the presumption,

[00:01:24] Speaker 00:
And the board found that the presumption did not apply.

[00:01:28] Speaker 00:
That when he appealed to the veterans court, he simply presented the fact that they relied upon a misinterpretation by concluding that it did not apply.

[00:01:38] Speaker 00:
So the question before the veterans court was merely application of 3.80 rather than as a matter of law, rather than whether or not the presumption could have possibly been rebutted.

[00:01:54] Speaker 03:
Well, we're in a CUE context, which makes us considerably different from a normal case.

[00:01:59] Speaker 03:
You know better than I. And so what was the error of the board to say, you may have been an A, but you didn't meet B. You fell into some of the exceptions.

[00:02:11] Speaker 03:
End of story.

[00:02:12] Speaker 03:
Well, you haven't shown that you satisfied the CUE standard.

[00:02:17] Speaker 00:
Well, because the board never spoke to B. The board only categorically said that the regulation

[00:02:24] Speaker 00:
without reference to A or B was not applicable.

[00:02:29] Speaker 00:
That was the determination made by the board.

[00:02:31] Speaker 03:
Maybe I'm misunderstanding what the CAVC did.

[00:02:35] Speaker 03:
But didn't they say that you haven't shown that you're not under B?

[00:02:39] Speaker 00:
Oh, yes.

[00:02:39] Speaker 00:
That's exactly what the Veterans Court said.

[00:02:41] Speaker 03:
And why is that error?

[00:02:44] Speaker 03:
You're applying the law.

[00:02:47] Speaker 00:
Because your honor, they were invited to focus on B when the question was only whether or not the regulation in its entirety was or was not applicable.

[00:03:00] Speaker 00:
That was the basis of the board's decision that was being sought for judicial review.

[00:03:07] Speaker 00:
The secretary then introduced as a defense, if you will, to why that wasn't an error.

[00:03:15] Speaker 00:
uh... to find that was not applicable was because of the existence of the rebuttable presumption the existence of the report of rebuttable presumption has nothing to do with whether or not it's applicable and the board made no such finding play with it and he started out by saying the question was whether or not under this regulation he should get to see when the regulation has two parts a and b

[00:03:43] Speaker 03:
And so are you saying there was no requirement on your client to deal with the B of that regulation?

[00:03:55] Speaker 00:
Yes, Your Honor.

[00:03:56] Speaker 00:
Because number one, it's not been demonstrated that B, in fact, applies to this part of the presumption under A. I don't understand what that means.

[00:04:09] Speaker 03:
Clearly, A and B apply, right?

[00:04:12] Speaker 00:
Not necessarily, Your Honor, because A applies to two types of chronic diseases.

[00:04:18] Speaker 00:
Chronic diseases that were not noted in service, but occurred within a presumptive period.

[00:04:25] Speaker 00:
That's the first portion of the regulation under A. Then it moves into a circumstance in which there was, in fact, a diagnosis while on active duty, which is the case for Mr. Koopsman.

[00:04:38] Speaker 00:
He had a diagnosis of an ulcer while on active duty.

[00:04:42] Speaker 00:
That then provides a separate now codified at 38 CFR 3.303b for a statutory presumption of service connection that if you have a chronic disease noted as such during service and any time thereafter no matter how remote you are entitled to a presumption of service connection.

[00:05:04] Speaker 02:
Can you just tell me where that second piece is in 380, either the 1949 or 1943?

[00:05:12] Speaker 00:
Yes, Your Honor.

[00:05:12] Speaker 00:
It's a little difficult because it is such a long regulation to be able to point to it, but it occurs... I don't know whether to count lines, but the opening phrase is, when service connection is established.

[00:05:30] Speaker 00:
Okay.

[00:05:33] Speaker 02:
But why does that cover a situation that, as far as I can tell, the rest of the regulation doesn't cover?

[00:05:42] Speaker 02:
The rest of the regulation seems to be only about what's now in 307.

[00:05:46] Speaker 02:
That is, stuff that appears after discharge, you're going to say, if it's within a certain time, we're going to treat it the same way as if it appeared during.

[00:06:03] Speaker 02:
that this regulation, I'm having a hard time seeing how it says what to do, that this regulation addresses at all how to treat a chronic disease that's manifested during service.

[00:06:21] Speaker 00:
Well, Your Honor, I'm not sure I can dispute that because I'm not sure the language clearly conveys that as written

[00:06:28] Speaker 02:
The new 1961 3.303 does address those.

[00:06:33] Speaker 00:
It does do that.

[00:06:34] Speaker 00:
And this court has interpreted that regulation's meaning.

[00:06:38] Speaker 00:
And it uses the identical language that is found here.

[00:06:42] Speaker 02:
Well, no, it doesn't.

[00:06:43] Speaker 02:
Because it actually says, I can find it.

[00:06:52] Speaker 02:
I've lost it.

[00:06:53] Speaker 02:
It's got a phrase in it that

[00:06:57] Speaker 02:
tells you actually to look to see if service connection is actually established.

[00:07:03] Speaker 02:
Let me just ask you, is it your position that either under the current regulation or under the 380s, that if a chronic disease, let's call it, manifests, that is, you see it during service, that there is no further inquiry into whether it pre-existed service?

[00:07:27] Speaker 00:
there is no language in either this regulation 3.80 or in the current codification of 3.303 that makes any reference whatsoever to pre-existing.

[00:07:40] Speaker 00:
So yes, Your Honor, the answer is without some specific reference to a pre-existing condition, there is no reason to believe that pre-existence is somehow a relevant consideration.

[00:07:54] Speaker 02:
Well, in the current regulation, 303B,

[00:07:58] Speaker 02:
when it says, with chronic disease shown as such, that is shown to be chronic in service or within the presumptive period, so as to permit a finding of service connection.

[00:08:11] Speaker 02:
I would have thought that that language says the mere fact that it appears during service is not enough to establish service connection if

[00:08:23] Speaker 02:
in the light of other evidence, like proof of pre-existing condition and not aggravated, it's not actually sort of disconnected.

[00:08:30] Speaker 00:
Well, with respect, Your Honor, that's not the interpretation made in Groves.

[00:08:34] Speaker 02:
Or in Walker.

[00:08:36] Speaker 02:
I think you're right about that.

[00:08:38] Speaker 00:
Yes.

[00:08:39] Speaker 02:
Without referring to that language.

[00:08:40] Speaker 00:
Yes.

[00:08:41] Speaker 02:
But it's not quite true to say that the language is the same.

[00:08:46] Speaker 00:
Well, OK, we differ on that.

[00:08:48] Speaker 00:
Let me phrase it this way.

[00:08:50] Speaker 00:
I believe that the language conveys the same intent.

[00:08:53] Speaker 02:
and the relevant intensity of... And your view is that the pre-existing nature and non-aggravating character of a chronic disease that is noted during service is irrelevant, because the fact that it's noted during service means it is service-connected, full stop.

[00:09:12] Speaker 00:
Well, it sets up the trigger.

[00:09:14] Speaker 00:
If it was noted as such in service, and then any time post-service, the same disease is present.

[00:09:21] Speaker 02:
Does 3.80B

[00:09:24] Speaker 02:
allow, um, disproof or of the premise or only of the character of post discharge, um, developments.

[00:09:35] Speaker 00:
I believe that the language in B only refers to the establishment of incurrence in service.

[00:09:44] Speaker 00:
And the distinction between the language in A and the language in B is that it refers to, as the veterans court noted,

[00:09:53] Speaker 00:
establishing incurrence in service.

[00:09:56] Speaker 00:
But establishment of incurrence in service is obviated here because there's a diagnosis.

[00:10:03] Speaker 00:
The fact that there may or may not have been a pre-existing condition simply isn't relevant to the equation.

[00:10:10] Speaker 00:
The only equation under this regulation is noted in service as a chronic disease.

[00:10:17] Speaker 00:
It's an ulcer.

[00:10:18] Speaker 00:
It's on the list of chronic diseases as an ulcer.

[00:10:21] Speaker 00:
There's

[00:10:22] Speaker 00:
evidence post-service, because he was discharged for this very ulcer, that when he made application, he had the same chronic disease.

[00:10:30] Speaker 00:
Therefore, this presumption of service connection, as was interpreted in Groves, applies.

[00:10:37] Speaker 00:
Rebuttal does not come into the equation.

[00:10:40] Speaker 00:
Preexistence does not come into the equation.

[00:10:43] Speaker 00:
I see that I'm into my rebuttal time.

[00:10:45] Speaker 00:
I'd like to reserve that.

[00:10:47] Speaker 00:
Thank you.

[00:10:49] Speaker 01:
Thank you, Your Honors.

[00:10:49] Speaker 01:
May it please the Court?

[00:10:53] Speaker 01:
Today we have a question as to whether or not there has been established a legitimate question of law as to the Veterans Court's application of the prejudicial error standard here, and we would submit that they have not shown that.

[00:11:06] Speaker 01:
Here, contrary to Mr. Koopman's allegations in his brief, the Veterans Court did not engage in any de novo fact finding and simply noted that...

[00:11:18] Speaker 02:
Part of what I want to, I guess, move you directly onto, I need to understand better than I do right now what the government's position is on how to interpret a number of things.

[00:11:30] Speaker 02:
The current regulation and it's 3.80 version way back when.

[00:11:35] Speaker 02:
Is the government's view that a disease that is noticed during service and noticed even as chronic is

[00:11:49] Speaker 02:
service connected under 3.80?

[00:11:52] Speaker 01:
No, Your Honor.

[00:11:53] Speaker 01:
We believe that 3.80 and B specifically is consistent with the larger scheme for veterans benefits and the congressional basis for basic entitlement, which requires that a condition be- Well, let me start.

[00:12:13] Speaker 02:
Do you think that 3.80, section A,

[00:12:17] Speaker 02:
provides a presumption of service connection in the circumstance that I just identified.

[00:12:25] Speaker 01:
It may be sufficient.

[00:12:27] Speaker 02:
Noticing of a disease during service and the disease is at the time noticed as chronic.

[00:12:33] Speaker 01:
It may be sufficient to trigger the presumption.

[00:12:36] Speaker 02:
Is it in your view?

[00:12:38] Speaker 02:
May doesn't help me.

[00:12:39] Speaker 02:
Is it in your view?

[00:12:40] Speaker 02:
Does 3.80A apply, say anything about that situation?

[00:12:46] Speaker 01:
It does not.

[00:12:47] Speaker 02:
And so even to the extent... Including the sentence way down at the bottom of the first long column, the where in, not where in, where service connect.

[00:12:56] Speaker 01:
Well, we believe that that regulation needs to be read consistent with the larger scheme for benefits, including that the principles of service connection that are currently codified in 38 USC 1110 at a time with this identical language in 310.

[00:13:12] Speaker 02:
You have the same view that's the current 3.303B?

[00:13:18] Speaker 02:
that in particular, that I take it that Groves plus Walker state, though they didn't quite have facts in front of them to make it a dispositive point on the facts, but that they state that in the circumstance I identified, a chronic disease noticed during service as chronic is service connected.

[00:13:49] Speaker 02:
without further inquiry into whether, in fact, it's not service-connected because actually the veteran had it before.

[00:13:56] Speaker 02:
And it hasn't gotten worse.

[00:13:58] Speaker 01:
Here, however, we are in the Q context, which must be analyzed in the law at the time.

[00:14:04] Speaker 01:
3.80A and B must be read together.

[00:14:09] Speaker 01:
And B does say that evidence which may be considered in rebuttal of service and currents.

[00:14:14] Speaker 01:
Service and currents is part of also the statutory scheme.

[00:14:18] Speaker 01:
benefits are triggered on whether a condition is incurred in or aggravated by service.

[00:14:26] Speaker 02:
In your view, if that's your view, do you think that at least what we stated with some care, I think, in Groves and Walker is wrong?

[00:14:40] Speaker 02:
Well,

[00:14:42] Speaker 02:
I don't need that.

[00:14:44] Speaker 02:
I'm not looking for a concession.

[00:14:47] Speaker 02:
All of this is by way of background to getting to this point about what exactly is the scope of 3.80b.

[00:14:56] Speaker 02:
Tell me where in 3.80b there is permitted rebuttal as to anything that occurred before discharge.

[00:15:09] Speaker 02:
I took 3.80B to be entirely about rebutting the presumption that the veteran's current problem is traceable back to what we are by the A assumption, deeming to have been service-connected during service, but not to any kind of rebuttal about

[00:15:38] Speaker 02:
that condition was actually pre-existing service, and it didn't get worse.

[00:15:46] Speaker 01:
I think that the beginning language of 3.80B discusses service and currents.

[00:15:52] Speaker 01:
And in the context of the larger regulatory and statutory scheme, I think that is relevant to a pre-existing condition.

[00:16:00] Speaker 01:
It says, evidence which may be considered in rebuttal of servants and currents, so not speaking to a

[00:16:08] Speaker 01:
a later manifestation, but of service and currents of a chronic or tropical disease will be any evidence of a nature usually accepted as competent to indicate the time and existence or inception of disease, and medical judgment will be exercised to continue that on.

[00:16:24] Speaker 02:
So you think that that does allow questioning even whether this disease, chronic, noticed during service,

[00:16:36] Speaker 02:
was actually service-connected because it pre-existed and wasn't aggravated.

[00:16:41] Speaker 01:
Yes.

[00:16:41] Speaker 01:
And I think that's consistent with the statutory scheme, which triggers basic entitlement to conditions which are incurred or aggravated by service.

[00:16:51] Speaker 02:
Isn't that a question of law that is before us in the sense that the Veterans Court's determination that there was no prejudicial error for

[00:17:06] Speaker 02:
as a result of Mr. Koopman's not putting on any kind of case about 3.80B rests on the idea that 3.80B has something to do with this.

[00:17:22] Speaker 01:
Not if the prejudicial error analysis, well,

[00:17:34] Speaker 01:
I see the question that Your Honor is asking.

[00:17:37] Speaker 01:
I think that the Veterans Court's decision can be read as implicitly agreeing with the Board that 3.80 applied only to conditions that were incurred in service or aggravated by service, but did not extend to pre-existing conditions.

[00:17:58] Speaker 01:
If that question has been raised here, we would contend that the appropriate thing to do would be for this court to affirm on an alternative basis because the board's interpretation of 3.80 was correct.

[00:18:14] Speaker 01:
With 3.80 read and consistently with the statutory limits that Congress has established, the existence

[00:18:26] Speaker 01:
of his ulcer as a pre-existing condition would then, would be rebuttable, would be appropriate evidence to rebut the presumption.

[00:18:40] Speaker 01:
And so in that circumstance, if the court were to find that the Veterans Court jumped the gun by not specifically analyzing that, I think that what the Veterans Court did was

[00:18:55] Speaker 01:
was agree that even if the presumption could be shown, the first step, that evidence of pre-existing condition would need to be shown to show that there was clear and unmistakable error in the 1955 decision.

[00:19:12] Speaker 01:
And I think it is undisputed here that there was no allegation that the evidence in 1955 was insufficient to rebut that presumption.

[00:19:30] Speaker 02:
Under the modern version of 3.80, 3.303, is it recognized that, or do you think that there is rebuttal available on the underlying incurrence in service of the chronic disease at issue?

[00:19:54] Speaker 01:
I believe that the current scheme also allows for rebuttal of the inservice and currents, which would be, again, consistent with 1110.

[00:20:05] Speaker 02:
Is there something in 303 that says that the way you say 3.80B said it?

[00:20:13] Speaker 01:
I apologize, Your Honor.

[00:20:14] Speaker 01:
I have the law that was relevant at the time because this is the Q context, then 3.80 before me, but I don't have the current regulation.

[00:20:32] Speaker 01:
If the court has no further questions, we would simply note that here, while we do not believe there was any legal error,

[00:20:40] Speaker 01:
with the Veterans Court's analysis in requiring that Q, which is a rare and specific type of error, be showing not only of an error, but that that error would be outcome-determinative

[00:20:55] Speaker 01:
should, that there was no legal error in that.

[00:20:58] Speaker 01:
But to the extent that the court has any concerns with that, we believe that the board decision properly interpreted 3.80 as not applying to conditions that pre-existed service.

[00:21:13] Speaker 01:
And that to the extent that the court has any concerns about that, it should affirm on that basis.

[00:21:21] Speaker 00:
Mr. Koopman would submit that the government

[00:21:25] Speaker 00:
has overlooked that in its own regulation, it created a regulatory presumption, as this court later found in Groves, of service connection, not a presumption of incurrence.

[00:21:40] Speaker 00:
The presumption of incurrence is in 38 USC 105.

[00:21:46] Speaker 00:
This court in Shedden made that determination that it in fact created a statutory

[00:21:52] Speaker 00:
presumption of service connection, but only as to the element of incurrence.

[00:21:58] Speaker 00:
This regulation, both in its original form in 3.80 and in its current form in 3.303B, creates, as this court found in Groves, a regulatory presumption of service connection.

[00:22:13] Speaker 00:
When service connection is presumed under the normal understanding of presumptions, there is no longer a burden

[00:22:22] Speaker 03:
on the claimant to come forward with any other evidence the burden shifts to the government well that may be true in your ordinary case the difficulty i'm having here is even if that is true in your ordinary case why in the cute in the cute contacts with the burden all really is to the veteran to show the outcome would have been manifestly different burden isn't a different bird because the queue allegation made

[00:22:52] Speaker 00:
to the agency and appeal to the board was that but for the failure of the VA in 1955 to apply this presumption, there would have been a presumption of service connection which would have been awarded as a matter of law.

[00:23:11] Speaker 00:
That is a manifestly different outcome if you apply the applicable provision.

[00:23:17] Speaker 00:
On appeal, the board said the regulation doesn't apply.

[00:23:21] Speaker 02:
we appeal to the veterans court and ask them to do that if the uh... agency or the board in nineteen fifty five would have as a matter of law giving you a presumption the board wouldn't have stopped it would have to get to giving you benefits that's the outcome that you have to be manifestly different and the problem is that that i think the veterans court focused on is that if as it thought three point eighty b allows

[00:23:50] Speaker 02:
a range of things to rebut, part of your Q case has to be show that when the board, recognizing a presumption, would go on to the next step, it would have led to you getting benefits, and you just didn't do that.

[00:24:05] Speaker 02:
That's what the Veterans Court said, right?

[00:24:07] Speaker 00:
That's exactly what the Veterans Court said, but that is not what the board said.

[00:24:12] Speaker 00:
And the board, or excuse me, the Veterans Court cannot affirm on a basis that was not relied upon by the board.

[00:24:19] Speaker 00:
had the board made that analysis and said, yes, it does apply.

[00:24:23] Speaker 00:
But even if it did apply, you didn't rebut it.

[00:24:28] Speaker 00:
But it's not our burden to rebut it.

[00:24:30] Speaker 00:
It's the secretary's burden to rebut it.

[00:24:34] Speaker 00:
The burden shifts once this service connection is established based upon an incurrence in service of a chronic disease.

[00:24:46] Speaker 00:
That triggers the regulatory presumption.

[00:24:49] Speaker 00:
Once that regulatory presumption is triggered, the burden then shifts to the VA to come forward to rebut under B, if appropriate.

[00:24:58] Speaker 00:
I don't believe it's appropriate, because it is talking about service incurrence under B only.

[00:25:06] Speaker 03:
Can we just go back a minute or two where you made the point?

[00:25:08] Speaker 03:
It seemed to be you're resting heavily on the fact that, well, that may be what the CAVC said, but it's not what the BVA said.

[00:25:15] Speaker 00:
Correct.

[00:25:15] Speaker 03:
Well, I mean, in your brief, you correctly say they're not supposed to do new fact finding at the CAVC level.

[00:25:21] Speaker 03:
It hasn't been done in the board.

[00:25:23] Speaker 03:
But really, I mean, in connection with determining whether or not there's prejudicial error, doesn't that require them to or allow them to make alternative holdings or analysis?

[00:25:39] Speaker 03:
Doesn't that analysis expand?

[00:25:41] Speaker 03:
If we're looking at prejudicial error, are you saying that the

[00:25:45] Speaker 03:
The CABC couldn't have said, well, let's look at the entire statute and start talking about B, even though the BVA didn't do it.

[00:25:53] Speaker 00:
As you frame it, Your Honor, I would agree.

[00:25:55] Speaker 00:
But that's not what the Veterans Court did.

[00:25:58] Speaker 00:
I direct the Court's attention to the last page of their decision, which is an Appendix 6,

[00:26:03] Speaker 00:
and what the concluding paragraph says, in sum, it is not absolutely clear that the applicant... I'm sorry.

[00:26:11] Speaker 03:
It's Appendix 10, right?

[00:26:13] Speaker 00:
Appendix 10.

[00:26:14] Speaker 00:
It's the very last page of the Veterans Court decision.

[00:26:22] Speaker 00:
And what it says is, in sum, because it is not absolutely clear that the application of 303B would result in an award of service connection,

[00:26:32] Speaker 00:
That assumes a fact that it was possible to rebut.

[00:26:39] Speaker 00:
That is too high a burden to place upon a claimant and appellant before the Veterans Court to show prejudicial error.

[00:26:49] Speaker 00:
And this court in Slaughter on the 30th of March

[00:26:53] Speaker 00:
made that exact observation about the misapplication of the rule of prejudicial error.

[00:27:00] Speaker 00:
And that's precisely what happened here because the court accepted hook, line, and sinker that be applied.

[00:27:10] Speaker 00:
If the board had said,

[00:27:12] Speaker 00:
be applied, that would have been a different situation.

[00:27:17] Speaker 00:
And we would have come forward and shown why there wasn't legally sufficient evidence to show that the secretary had rebutted it in 1955.

[00:27:30] Speaker 00:
But there was no effort to rebut it.

[00:27:32] Speaker 00:
What was relied upon in 1955 was the assumption that because he referenced symptoms when he was being diagnosed while on active duty, that pre-existent service, that they could extrapolate that it existed prior to service.

[00:27:50] Speaker 00:
They would have to have rebutted the presumption.

[00:27:53] Speaker 00:
And as this court determined in Routon, the presumption

[00:27:57] Speaker 00:
requires them to at least carry forward with clear and convincing evidence to abut that presumption.

[00:28:05] Speaker 00:
I see that I'm way over my time.

[00:28:06] Speaker 00:
I apologize, Your Honor.

[00:28:07] Speaker 03:
Thank you.

[00:28:08] Speaker 03:
Thank you very much.

[00:28:09] Speaker 03:
I'll think both sides and the case is submitted.