[00:00:00] Speaker 04:
Okay, our next case for argument is 21-1669 Long versus McDonoughhue.

[00:00:08] Speaker 04:
Is it Donahower?

[00:00:10] Speaker 04:
Yes.

[00:00:10] Speaker 04:
Please proceed.

[00:00:14] Speaker 03:
Thank you, Your Honor, and may I please the court.

[00:00:17] Speaker 03:
Beheading case compensation for functional impairment resulting from a veteran service-connected condition.

[00:00:24] Speaker 03:
The question here is whether the phrase resulting from requires that the functional impairment be directly related to the service-connected condition.

[00:00:32] Speaker 03:
The onboard Veterans Court erred when it answered yes to that legal question, and compounding that legal error, the Veterans Court overstepped the scope of its review when it found a lack of linkage between Mr. Long's earpane and his service-connected hearing loss.

[00:00:48] Speaker 03:
Now there's little disagreement between the parties here about what the correct legal standard is, and the debate seems to center on what the Veterans Court did here.

[00:00:59] Speaker 03:
The government argues that the court simply applied the subtle law to the facts of Mr. Long's case, but that would require this court to read into the Veterans Court's decision, reasoning that simply isn't there.

[00:01:18] Speaker 03:
The Veterans Court did not hold that Mr. Long's decision to wear his hearing aids in situations with background noise was somehow an intervening cause that cut off the causal chain between his service-connected hearing loss and his ear pain.

[00:01:36] Speaker 03:
And so the government's efforts to style this case as the application of law to fact should fail.

[00:01:44] Speaker 03:
In any event,

[00:01:47] Speaker 03:
The gist of that argument is that a veteran should simply avoid the use of any assistive device that allows him to function under the ordinary conditions of daily life if use of that assistive device would somehow cause additional functional impairment.

[00:02:04] Speaker 03:
And that's simply contrary to the thrust of the entire VA benefits system.

[00:02:10] Speaker 02:
On your argument that

[00:02:14] Speaker 02:
The ear pain should be considered to be sufficient to give rise to extra schedule or treatment.

[00:02:24] Speaker 02:
How do you deal with the point made by the board and by the Court of Appeals for Veterans Claims as well?

[00:02:33] Speaker 02:
that on step with the court called step two of the Thun analysis, there was no showing that the disability is so exceptional or unusual due to factors such as marked interference with employment or frequent periods of hospitalization.

[00:02:52] Speaker 02:
I don't think you raised that, at least in your opening brief, before the Veterans Court.

[00:02:58] Speaker 02:
And yet, that's a requirement for extra schedule or consideration, is it not?

[00:03:04] Speaker 03:
Yes, Your Honor.

[00:03:08] Speaker 03:
Three points, I believe, in response to Your Honor's question.

[00:03:11] Speaker 03:
First, Your Honor's question points at the lack of board findings on European.

[00:03:17] Speaker 03:
There are simply no board findings whatsoever on European.

[00:03:21] Speaker 03:
It's not disputed that it was raised by the record before the board, but the board did not.

[00:03:26] Speaker 02:
Well, it was raised first by the record.

[00:03:28] Speaker 02:
There is one page, I guess a page and a half, in the record in which

[00:03:32] Speaker 02:
In the course of this testimony, Mr. Long referred to noise in a restaurant.

[00:03:38] Speaker 02:
But was there any more formal presentation of the ear pain claim, more generally, to the board?

[00:03:45] Speaker 02:
Because we don't have the briefs that were submitted to the board.

[00:03:49] Speaker 02:
There was no such suggestion that I could see in the opening brief to the Court of Appeals for Veterans Claims.

[00:03:58] Speaker 03:
Your Honor, there were no briefs presented to the board on ear pain, and Mr. Long was not in fact represented by counsel before the Board of Veterans' Appeals, and it's not disputed that the record before the board raised the ear pain as a potential consequence of Mr. Long's hearing loss via his use of hearing aids.

[00:04:22] Speaker 03:
And so as for

[00:04:25] Speaker 02:
I saw that he was represented by the disabled American veterans before the board.

[00:04:30] Speaker 03:
Yes, he was represented by a veterans service organization, not by legal counsel.

[00:04:36] Speaker 02:
Okay.

[00:04:40] Speaker 02:
But go ahead.

[00:04:42] Speaker 02:
Go ahead.

[00:04:43] Speaker 02:
I'm sorry, your honor.

[00:04:44] Speaker 02:
No, please go ahead.

[00:04:46] Speaker 04:
Yes.

[00:04:46] Speaker 04:
Can I ask you just, I just want to revisit something.

[00:04:49] Speaker 04:
Is it your position

[00:04:52] Speaker 04:
that the board made no fact findings on ear pain at all, not just with regard to Thoom step one, which focuses more on causation, but also with regard to Thoom step two, which focuses on whether this is an unusual or exceptional disability picture.

[00:05:10] Speaker 03:
Correct, Your Honor.

[00:05:11] Speaker 03:
There are no board findings about ear pain at all.

[00:05:15] Speaker 03:
That includes no finding as to whether the ear pain is related to the hearing loss,

[00:05:20] Speaker 03:
No finding as to whether the ear pain is an exceptional symptom, un-contemplated by a scheduler rating tool.

[00:05:30] Speaker 03:
No finding as to whether the ear pain causes any functional impairment, let alone marked interference with employment.

[00:05:42] Speaker 03:
It might help to walk briefly through the procedural history of the Veterans Court here, which was long and rather convoluted.

[00:05:50] Speaker 03:
The Veterans Court stayed the case pending a related case called Doucet, in which the court held that ear pain is not contemplated by the schedule for reading hearing loss.

[00:06:04] Speaker 03:
And so that places on the board the responsibility to make a factual finding about whether European is contemplated by a veterans rating.

[00:06:15] Speaker 03:
And so Mr. Long argued before the veterans court that the board's failure to make any findings about the European was error.

[00:06:29] Speaker 03:
And so getting to Judge Bryson's question about

[00:06:33] Speaker 03:
I believe in step two of the analysis, the extra-schedular analysis about whether the European causes marked interference with employment.

[00:06:44] Speaker 03:
I think that raises a misunderstanding by both the Veterans Court and the government here about the prejudicial error analysis.

[00:06:54] Speaker 03:
The Veterans Court said that Mr. Long didn't make any challenge regarding

[00:07:00] Speaker 03:
regarding step two, the marked interference with employment.

[00:07:05] Speaker 03:
And so it was sufficient that the board's failure to make any findings about ear pain could have affected its analysis of step two.

[00:07:19] Speaker 01:
Counsel, there's obviously a question about whether the court below engaged in fact finding with respect to ear pain.

[00:07:30] Speaker 01:
But if we resolve the resulting question against you, does that still implicate the fact finding regarding ear pain, or does that loot it?

[00:07:48] Speaker 03:
I believe if the court agrees, if this court were to hold that the Veterans Court applied the correct legal standard, then

[00:07:59] Speaker 03:
the fact finding might be harmless.

[00:08:02] Speaker 03:
But the Veterans Court did not apply the correct legal standards here by requiring that direct link between the service-connected hearing loss and the ear pain.

[00:08:15] Speaker 03:
There is no language modifying the phrase resulting from or any other limiting language in the relevant statutes or regulations

[00:08:28] Speaker 03:
that require a direct causal link between the functional impairment and the service-connected condition.

[00:08:37] Speaker 03:
The Veterans Court has recognized that in numerous panel decisions, and correctly so, which points up the issue here, which is that the en banc court has created this new and erroneous standard

[00:08:55] Speaker 03:
for demonstrating nexus that has unsettled the law here.

[00:08:59] Speaker 03:
And the government argues that the en banc court was aware of Bailey and so should be deemed to have acted in accordance with its Bailey decision, which recognizes that treatment can provide a requisite causal link.

[00:09:18] Speaker 03:
But the en banc court, of course, doesn't have to follow a panel decision

[00:09:23] Speaker 03:
And so we really need some clarification here about what the correct legal standard is.

[00:09:30] Speaker 02:
Let me make sure I understand what the factual predicate is for the claim of ear pain.

[00:09:36] Speaker 02:
Was there anything before the board regarding the ear pain resulting from the hearing aids that other than the section of the transcript on pages 68 to 69

[00:09:52] Speaker 02:
where Mr. Long says that the hearing aids make things louder, but that's a disadvantage.

[00:09:59] Speaker 02:
Because if I get into, and then he says, a restaurant, it hurts my ears.

[00:10:04] Speaker 02:
Is there anything other than that that was presented to the board with regard to the ear pain aspect of the claim?

[00:10:13] Speaker 03:
That is the evidence, Your Honor.

[00:10:15] Speaker 03:
It's Mr. Long's competent testimony that

[00:10:18] Speaker 03:
when he used his hearing aids in situations with background noise, they tended to over amplify that sound and cause ear pain.

[00:10:27] Speaker 03:
I would just point also to page 72 of the record where there is evidence that Mr. Long's work in a classroom setting was in a noisy environment involving background noise.

[00:10:43] Speaker 03:
And so as far as there's any concern about

[00:10:47] Speaker 03:
his ability to demonstrate functional impairment, earning capacity, the hearing testimony, plus that evidence shows that the board could have found that there was impairment of his ability to function in the kind of setting in which he worked.

[00:11:09] Speaker 04:
Okay, counsel, do you want to save your remaining time for rebuttal?

[00:11:12] Speaker 03:
I would, Your Honor, thank you.

[00:11:26] Speaker 04:
So far, I'm about 50-50 on last names.

[00:11:29] Speaker 04:
I'm not going to go for it.

[00:11:31] Speaker 04:
Just tell me how to say your last name, Counsel.

[00:11:33] Speaker 00:
It's purely phonetic, Your Honor.

[00:11:34] Speaker 00:
Last name is O. O?

[00:11:36] Speaker 00:
O. Correct.

[00:11:39] Speaker 04:
Please proceed, Mr. O.

[00:11:41] Speaker 00:
May it please the court?

[00:11:43] Speaker 00:
I think there are three issues in this case.

[00:11:46] Speaker 00:
The first issue is regarding this linkage nexus analysis, whether the Veterans Court did improper shock finding under the law.

[00:11:54] Speaker 00:
The second issue is with relation to the exceptionality or unusualness requirement of the extra schedule of regulation.

[00:12:03] Speaker 00:
And the third issue is whether there was an impairment to earnings capacity, which is the second necessary element for the extra schedule or consideration regulation.

[00:12:13] Speaker 00:
I'll briefly touch on the linkage nexus issue.

[00:12:15] Speaker 00:
It's not very difficult to understand what the Veterans Court's decision was.

[00:12:20] Speaker 00:
It's on page 11 of the appendix.

[00:12:23] Speaker 00:
It references about a page and a half of the record.

[00:12:27] Speaker 00:
Judge Bryce, it's your question.

[00:12:29] Speaker 00:
We've looked through the record of proceedings.

[00:12:30] Speaker 00:
That appears to be the only discussion of the ear pain claim.

[00:12:34] Speaker 00:
My friend on the other side.

[00:12:35] Speaker 04:
The problem for me, counsel, is that with regard to this linkage question, the board faults the veterans' argument by saying he consistently attributed his ear pain to the use of hearing aids and not

[00:12:52] Speaker 04:
to hearing loss.

[00:12:54] Speaker 04:
At no point has he shown confident evidence associating his pain with hearing loss.

[00:13:00] Speaker 04:
So the problem for me is it appears in the only statements in which the Veterans Court addresses this that they have clearly discounted the possibility that pain he experiences by virtue of hearing aid use

[00:13:16] Speaker 04:
could be service-connected.

[00:13:18] Speaker 00:
I get that, Your Honor.

[00:13:19] Speaker 00:
I think one thing that's important is the leading sentence of that paragraph, where the Veterans Court starts, likewise, and then it says, Mr. Long's challenge to the board's finding regarding ear pain falters due to a lack of linkage between the complaint and his hearing loss.

[00:13:35] Speaker 04:
But that doesn't actually, I don't see how that makes any difference.

[00:13:38] Speaker 04:
What the board is saying is that he, they go on to say, he links his pain to the use of his hearing aids.

[00:13:46] Speaker 04:
That's not his hearing loss.

[00:13:47] Speaker 04:
Therefore, he doesn't get benefits.

[00:13:49] Speaker 00:
Right.

[00:13:49] Speaker 00:
And I think that could be the broad reading of the Veterans Court's decision.

[00:13:52] Speaker 00:
But I think what the Veterans Court was trying to do was there.

[00:13:53] Speaker 04:
I don't see how it's not the only reading of the Veterans Court's decision.

[00:13:57] Speaker 04:
What else did they say?

[00:13:58] Speaker 00:
His complaint, between his complaint, or between the complaint and his hearing loss.

[00:14:04] Speaker 02:
To the extent that it is at least unclear how broad the Veterans Court's statement was intended to be,

[00:14:14] Speaker 02:
It can't be right, can it, that if there is a condition that resulted from service connection, that is service connection, and the treatment of that condition results in another condition that is adverse to the veteran in disabling

[00:14:31] Speaker 02:
the veteran clearly gets to recover for the second condition, right?

[00:14:35] Speaker 00:
I think that broad proposition could not be right.

[00:14:38] Speaker 00:
So that's correct.

[00:14:39] Speaker 02:
You mean the one I just said?

[00:14:41] Speaker 00:
So if that's what the Veterans Court is saying, that can't be correct.

[00:14:44] Speaker 02:
Yeah.

[00:14:45] Speaker 02:
I'm not sure whether you were saying the proposition.

[00:14:47] Speaker 00:
I was agreeing with you.

[00:14:48] Speaker 02:
OK.

[00:14:50] Speaker 00:
I should have said that upfront.

[00:14:51] Speaker 02:
So at least we know that much to the extent that the Veterans Court's opinion could be understood to be saying just that.

[00:15:00] Speaker 02:
that we would have to say, that's not right.

[00:15:02] Speaker 00:
Right.

[00:15:02] Speaker 00:
And that's not our position in this case.

[00:15:04] Speaker 00:
That's not our understanding.

[00:15:05] Speaker 04:
So let me give you an example just to make sure we're on the same page.

[00:15:08] Speaker 04:
Suppose that we're not talking about a veteran with hearing loss.

[00:15:12] Speaker 04:
We're talking about an amputee, a veteran who has lost his limb.

[00:15:15] Speaker 04:
And suppose that the prosthetic he is using is causing him sufficient damage, pain, chapping, irritability in the skin surrounding where the prosthetic attaches to his leg.

[00:15:28] Speaker 04:
It would have to be the case.

[00:15:30] Speaker 04:
that that secondary pain, the pain that he is experiencing by virtue of the reparation device, i.e.

[00:15:37] Speaker 04:
the additional limb, is attributable to his loss of leg, right?

[00:15:45] Speaker 00:
I think that's right, yes.

[00:15:46] Speaker 00:
And I think there are cases that would probably support that almost directly.

[00:15:49] Speaker 04:
So if I read the Veterans Court opinion as contrary to that concept, because the Veterans Court opinion only varies briefly

[00:16:00] Speaker 04:
fashion addresses this ear pain, hearing loss, hearing aid issue.

[00:16:05] Speaker 04:
And in two of the only four sentences that they articulate, both of those sentences express a sentiment that feels to me very contrary to what we've just agreed the law has to be.

[00:16:18] Speaker 04:
Don't I have to just vacate and remand this case?

[00:16:20] Speaker 00:
Not exactly, Your Honor.

[00:16:21] Speaker 00:
And I understand.

[00:16:22] Speaker 00:
I think this could have been written better.

[00:16:24] Speaker 04:
Well, and this is an in-bank decision of the Veterans Court.

[00:16:26] Speaker 04:
It's even more scary for me, because as an in-bank decision of the Veterans Court, is this not setting the standard that now all members of the Veterans Court will have to follow to conclude that treatment

[00:16:39] Speaker 04:
If treatment causes additional injury, that's not linked to the service connection.

[00:16:43] Speaker 00:
Right.

[00:16:44] Speaker 00:
And that's why I don't think that's what the Veterans Court was saying.

[00:16:46] Speaker 00:
I think there's pretty well-established law that treatment-related disabilities are- That well-established law was their own law.

[00:16:53] Speaker 04:
The SinBank opinion overrides all of it.

[00:16:54] Speaker 00:
And that's why I think what the Veterans Court was trying to say was limiting it specifically to the facts of this case, which, again, only had a page and a half of record testimony on the issue.

[00:17:04] Speaker 00:
The Veterans Court reviewed that evidence, gave the veteran.

[00:17:09] Speaker 04:
But I don't understand.

[00:17:10] Speaker 04:
Whether he says, I have pain because when I use my hearing aids, at certain time, loud noises cause me extreme headaches or pain or whatever.

[00:17:19] Speaker 04:
Or whether he says, I have pain because my hearing may cause an irritation in my ear, which has made it very raw.

[00:17:26] Speaker 04:
Whatever articulation he has, isn't that a result of his hearing loss?

[00:17:34] Speaker 00:
Right.

[00:17:34] Speaker 00:
So I think, again, limited to what the record said, I think what was grounding the Veterans Court's decision was this broader context about what the record showed.

[00:17:44] Speaker 00:
Do we really need to remand this in light of what we know the record says, giving the most favorable interpretation of the record evidence?

[00:17:51] Speaker 00:
But to your question, Judge, more about

[00:17:53] Speaker 00:
Even if you disagree with that finding, does that automatically result in a vacate and a remanding of the Veterans Court's decision?

[00:18:00] Speaker 00:
And respectfully, I would say no, because the extra scheduler consideration requires two necessary elements.

[00:18:07] Speaker 00:
And there's been no evidence or argument as to that second necessary element throughout the duration of the case.

[00:18:12] Speaker 02:
Did he make in the Veterans Court an argument that the second requirement of whom was satisfied?

[00:18:21] Speaker 00:
I don't believe so, Your Honor.

[00:18:22] Speaker 00:
And the board, again, it didn't touch the issue of ear pain, but it did touch the issue of whether there was any support for the impairment of earnings capacity.

[00:18:31] Speaker 00:
That's on APPX page 39.

[00:18:33] Speaker 04:
But stop for a sec.

[00:18:36] Speaker 04:
If the board disregarded his ear pain,

[00:18:39] Speaker 04:
and made no fact findings with regard to it, since it literally didn't address it, how do we know that it nonetheless concluded that that ear pain, that it made no fact findings on, didn't impact his earnings or his work?

[00:18:53] Speaker 04:
or cause some more significant problems.

[00:18:57] Speaker 00:
So there's two legal grounds for that.

[00:18:58] Speaker 00:
Number one is the issue of waiver.

[00:19:00] Speaker 00:
I don't think there's any dispute that the issue of impairment to earnings capacity with respect to ear pain was not raised below.

[00:19:07] Speaker 00:
But the second issue is that the record on the matter is pretty clear.

[00:19:10] Speaker 00:
Judge Bryce's question to my friend on the other side was, is there any other evidence with respect to ear pain?

[00:19:15] Speaker 00:
The answer is no.

[00:19:16] Speaker 00:
If there's no evidence on the issue of impairment earnings capacity associated with the ear pain, the issue in this case seems to be correct.

[00:19:23] Speaker 04:
Yes, but the problem is the board didn't make that fact finding.

[00:19:26] Speaker 00:
That's correct.

[00:19:27] Speaker 04:
So the board didn't make a fact finding.

[00:19:29] Speaker 00:
Not that specific fact finding.

[00:19:30] Speaker 04:
But you want me to make it on appeal by looking at the evidence and concluding it's not sufficient?

[00:19:36] Speaker 00:
So again, the issue was number one, one of waiver, which would not require the court to delve back into any specific factual question.

[00:19:45] Speaker 04:
How could they waive the appeal of something that wasn't addressed by the board?

[00:19:48] Speaker 04:
If something wasn't addressed by the board, and they've clearly continued to argue that ear pain, both before the Veterans Court and before us, ought to be a ground in which they can obtain recovery, if the board didn't make an underlying fact finding at all about ear pain with regard to anything, much less

[00:20:06] Speaker 04:
the second factor of Thune, why don't we remand this case back to the board to actually now make those fact findings?

[00:20:13] Speaker 00:
So I think one important thing to understand is the board made a finding about an impairment earnings capacity generally on APPX page 39, where it found that this is APPX 39.

[00:20:31] Speaker 00:
It's a fairly long paragraph.

[00:20:35] Speaker 01:
Are you saying that the waiver was at the board?

[00:20:39] Speaker 00:
The waiver was not at the board.

[00:20:41] Speaker 00:
The waiver was at the Veterans Court.

[00:20:44] Speaker 00:
The issue of what the record states and where the record closed was at the board.

[00:20:49] Speaker 00:
So what we know here is that there was just no evidence with regard to impairment of earnings capacity with respect to any particular finding or any particular symptom or claim.

[00:21:00] Speaker 01:
So you're saying that the court didn't engage in fact finding, but just in effect determined that the issue had been waived.

[00:21:08] Speaker 00:
The Veterans Court found that correct.

[00:21:10] Speaker 00:
Correct.

[00:21:11] Speaker 00:
But even beyond that, I think we can go into the record, look at what the record states.

[00:21:17] Speaker 00:
We made this pretty clear in our response brief.

[00:21:19] Speaker 00:
There's no evidence about the impairment of earnings capacity on the record with respect to ear pain.

[00:21:24] Speaker 00:
There's only the six lines that the record consists of.

[00:21:28] Speaker 00:
It's pretty clear ear pain was discussed in a very factually specific instance.

[00:21:33] Speaker 00:
And so if that's the only evidence on the issue, there just is no

[00:21:37] Speaker 00:
I think the Veterans Court's reasoning was based upon this understanding of futility.

[00:21:43] Speaker 00:
Are we really going to delay the process in adjudicating the dispute in light of what the record states, in light of the fact there's a waiver issue where the second issue was even raised as part of the Veterans Court's briefing before the Veterans Court?

[00:21:57] Speaker 00:
I don't want to belabor the issue too much.

[00:22:00] Speaker 00:
We think that the Veterans Court, I think the causality analysis could have been written better.

[00:22:05] Speaker 00:
But I think what the Veterans Court was trying to get at was that there was a very clear understanding of what the record said, understood that remanding on that specific issue would have been futile in light of the fact that there also was no evidence with respect to the second necessary element.

[00:22:20] Speaker 04:
So when you say there was no evidence, he alleges it causes him pain.

[00:22:26] Speaker 04:
in loud spaces or restaurants.

[00:22:28] Speaker 04:
And then there is some evidence that that kind of scenario exists in his workplace.

[00:22:34] Speaker 04:
He was not represented by counsel.

[00:22:36] Speaker 04:
Isn't that sufficient to at least cause the board to need to make a fact finding in the first instance?

[00:22:43] Speaker 00:
So again, I think the board did make the fact finding about there being no evidence with respect to impairment of earnings capacity generally.

[00:22:50] Speaker 00:
That's a necessary element, regardless of what you're claiming is the additional disability of the symptom.

[00:22:56] Speaker 00:
So the board made the across-the-board recognition.

[00:22:59] Speaker 00:
There's just no evidence with respect to that second necessary issue.

[00:23:02] Speaker 00:
And so what the Veterans Court saw was, well, if there's no evidence on that issue, number one, it's a waiver issue, because you didn't raise it in the Veterans Court briefing.

[00:23:10] Speaker 00:
But secondly, what's the point of remand on that if we already know that the board made that finding?

[00:23:14] Speaker 00:
So that's the position in this case.

[00:23:16] Speaker 01:
And was he represented by counsel at the court?

[00:23:21] Speaker 00:
I believe he was represented by counsel at the Veterans Court.

[00:23:24] Speaker 00:
He was represented by a veteran's representative below.

[00:23:27] Speaker 04:
No, that's not counsel.

[00:23:29] Speaker 02:
He was represented by, I think, Chisholm, Chisholm, and Kilpatrick before the court.

[00:23:35] Speaker 00:
Correct, yes.

[00:23:37] Speaker 00:
So at the board, it was a veterans representative.

[00:23:39] Speaker 00:
That's correct.

[00:23:40] Speaker 00:
We respectfully request that the court affirm the decision of the Veterans Court.

[00:23:55] Speaker 04:
OK, counsel, you've got some rebuttal time.

[00:23:57] Speaker 04:
Please proceed.

[00:24:00] Speaker 03:
Thank you, Your Honor.

[00:24:02] Speaker 03:
Chief Judge Moore, to your question about the legal test that the Veterans Court created here, I'd just like to direct the Court's attention also to page 8 of the appendix, which is where the Veterans Court discussed downstream effects that lack a legally recognized link to service.

[00:24:23] Speaker 03:
And when you read its findings on page 11 in light of its discussion there,

[00:24:29] Speaker 03:
I think it's clear that it created a legal test that the effects of treatment cannot be related to service.

[00:24:39] Speaker 03:
As far as the government's arguments go, they simply read findings into both the board's and the Veterans Court's decision that are not there.

[00:24:49] Speaker 03:
The board could not have encompassed European in its discussion of functional impairment because it made no findings on European at all.

[00:24:59] Speaker 03:
And as the Veterans Court, the evidence was before the board that the ear pain happened in noisy situations.

[00:25:09] Speaker 03:
And the evidence was before the board that one of those situations was Mr. Long's workplace.

[00:25:15] Speaker 03:
That was sufficient to raise the prejudicial error in the board's failure to make any findings about ear pain whatsoever.

[00:25:23] Speaker 02:
Did you mention in your brief

[00:25:29] Speaker 02:
Before the Veterans Court, did you raise the issue of Foon Step 2, which the board had addressed?

[00:25:38] Speaker 02:
Yes, Your Honor.

[00:25:39] Speaker 03:
That was raised in the reply brief.

[00:25:41] Speaker 03:
But not in the opening brief, only in the reply brief?

[00:25:45] Speaker 03:
As we explained in our reply brief before this court, the reply brief before the Veterans Court came out after Doucet discussed ear pain.

[00:25:56] Speaker 03:
And so we argued in our reply brief

[00:26:00] Speaker 03:
After the court lifted the stay pending, you said that the board's failure to make findings about ear pain might have infected its analysis of Tune Step 2.

[00:26:12] Speaker 04:
And so was that your first opportunity then to be able to raise that issue?

[00:26:21] Speaker 03:
As to ear pain, yes, Your Honor.

[00:26:26] Speaker 03:
Also, the Veterans Court, so the Veterans Court was firstly factually wrong that Thune Step 2 is not raised.

[00:26:35] Speaker 03:
And secondly, I think the Veterans Court's analysis there was contrary to what this court recently stated about assessing harmful error, which is that it has to be based on the circumstances of the case.

[00:26:50] Speaker 03:
And the Veterans Court simply didn't look at the facts of the case when assessing

[00:26:55] Speaker 03:
whether there was prejudice of doing step two.

[00:27:01] Speaker 03:
If there are no further questions, we would ask this court to vacate and remand on instructing the Veterans Court what the correct legal standard is and to have it review the board's decision based on that correct standard.

[00:27:15] Speaker 03:
Thank you.

[00:27:17] Speaker 04:
Okay, we thank both counsels.

[00:27:18] Speaker 04:
This case is taken under submission.