[00:00:00] Speaker 03:
Good morning, and may it please the court.

[00:00:03] Speaker 03:
The Veterans Court cannot resolve matters that are open to debate to find the board's errors harmless.

[00:00:08] Speaker 03:
For Mr. Ratliff, the Veterans Court held that the board was wrong when it relied on the May 2018 exam, but it found that that error didn't matter because the court agreed with the board's credibility analysis.

[00:00:20] Speaker 03:
Now, by finding that Mr. Ratliff had no credibility, the board concluded that he lacked evidence of an in-service event and continuity symptoms.

[00:00:29] Speaker 03:
But a single most probative piece of evidence was the May 2018 exam that the Veterans Court rejected.

[00:00:36] Speaker 03:
That alone should have prompted a remand for factual development.

[00:00:39] Speaker 03:
And without that remand, the Veterans Court's holding means it found that even the most favorable exam, had it existed, never would have supported Mr. Ratliff's in-service noise exposure or his continuous symptoms.

[00:00:51] Speaker 03:
And that's highly debatable, given Mr. Ratliff's MOS is a can improvement.

[00:00:57] Speaker 03:
So now we're left with the rest of the evidence that the board relied upon.

[00:01:00] Speaker 03:
Now, as the Veterans Court described it, every piece of evidence that the board relied upon was some instance where Mr. Ratliff was violent about his tinnitus or where he didn't mention his other injuries in service and the lack of documentation about it.

[00:01:14] Speaker 03:
So all of that type of evidence, all of that silent evidence being treated as negative evidence required a foundation under Fountain.

[00:01:22] Speaker 03:
And when it came to tinnitus,

[00:01:24] Speaker 03:
We know that under Fountain, that foundation required medical evidence.

[00:01:29] Speaker 03:
For Mr. Ratliff, specifically, that foundation had to establish why these records should have reflected his tinnitus or his other injuries.

[00:01:37] Speaker 03:
And that is a medical question because it's an issue of the nature and severity of his tinnitus.

[00:01:42] Speaker 03:
The Veterans Court found, though, that the board did like the foundation, even though it didn't point to any of the board's language to provide that.

[00:01:52] Speaker 03:
The Veterans Court actually wrote its own.

[00:01:54] Speaker 03:
And it assumed the board's thoughts at the time as to what the board believed or what the court assumed that the board believed about those records and about what they should have seen.

[00:02:05] Speaker 03:
But it's evident from the Veterans Courts Foundation that it underestimates the requirements found.

[00:02:12] Speaker 01:
And that's because... So one of the concerns I have with your argument about misapplication, that Veterans Court misapplied fountains, is that we are not supposed to review application of law to fact.

[00:02:27] Speaker 01:
So why do we even have jurisdiction to hear this argument?

[00:02:31] Speaker 03:
That, Your Honor, is first because of an overreaching from this error analysis.

[00:02:36] Speaker 03:
So the question of whether the Veterans Court should have even engaged in that level of

[00:02:41] Speaker 03:
of fact-finding in order to find error harmless.

[00:02:44] Speaker 03:
And more than that, the fountain question of whether, legally speaking, the board and then the court made Colvin and Kahana violations when it supported its foundation with unsupported medical evidence without any independent medical evidence about the nature and severity of Mr. Bratles tonight.

[00:03:09] Speaker 03:
Ultimately, the Veterans Court affirmed the Board's conclusions despite rejecting its most probative piece of evidence and writing its foundations for the Board, which the Board lacks.

[00:03:18] Speaker 03:
Now, that leaves a lot of questions open to debate.

[00:03:24] Speaker 03:
Would the Board have reached the same credibility finding with less evidence?

[00:03:28] Speaker 03:
Would the probative weight of whatever was left over after the Board's errors still be enough to find that Mr. Ratliff is not credible as a whole, and would the Board's

[00:03:37] Speaker 03:
foundation had it been supported by medical evidence and had the board provided one, would that have been identical to the court and would it have led to the same undebatable results?

[00:03:48] Speaker 03:
And that's a matter the Veterans Court was not supposed to resolve.

[00:03:52] Speaker 03:
We asked this court to hold that VA must establish a foundation before treating any silent evidence as negative evidence.

[00:03:58] Speaker 03:
And we asked this court to hold that the Veterans Court can't do that when the board fails to, especially when it matters where medical evidence is at stake.

[00:04:06] Speaker 03:
And we asked the court to hold that the veteran's court overreached in his harmless error analysis when it resolved debatable factual matters that were up to the court.

[00:04:24] Speaker 00:
Ms.

[00:04:24] Speaker 00:
Gentile, do you have anything else or would you like to save the remainder of your time for rebuttal?

[00:04:29] Speaker 03:
I would like to save it, Your Honor.

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

[00:04:31] Speaker 00:
Okay.

[00:04:31] Speaker 00:
Thank you.

[00:04:31] Speaker 00:
We'll hear from Ms.

[00:04:32] Speaker 00:
Kramer next.

[00:04:39] Speaker 02:
May it please the court?

[00:04:41] Speaker 02:
This court should dismiss this case because the credibility and the prejudicial error analyses are unreviewable factual determinations.

[00:04:52] Speaker 02:
In the alternative, the court should affirm the federal court's findings.

[00:04:57] Speaker 02:
There was no interpretation, assessment of the validity of or elaboration on the rule of law here.

[00:05:04] Speaker 02:
There is a simple application and citation of fountain to the facts of the case.

[00:05:10] Speaker 02:
It's a simple application of factual law, which is a factual determination that is not reviewable by this court.

[00:05:17] Speaker 00:
The same thing goes.

[00:05:19] Speaker 00:
Can I move you on to the harmless air determination?

[00:05:21] Speaker 00:
What was the basis for that and why was the Veterans Court entitled to make that type of, it seems like a factual determination in the first instance without remanding it to the board?

[00:05:34] Speaker 02:
Well, as an initial matter, the veteran's court is required to make a harmless error analysis by statute.

[00:05:42] Speaker 02:
And here, it was based on the credibility analysis already undertaken by the board.

[00:05:50] Speaker 02:
So there was no de novo fact finding or anything of that sort.

[00:05:54] Speaker 02:
It was simply applying what the board had already decided and finding the remaining error harmless.

[00:06:07] Speaker 02:
And additionally, there are three factors that are required to show service connection, a current disability, in-service, incurrence, or aggravation of the disease or injury, and a link between the claimed in-service disease or injury and the present disability.

[00:06:23] Speaker 02:
Because Mr. Ratliff has been found to be not credible, he couldn't show the second element.

[00:06:30] Speaker 02:
So he couldn't show service connection regardless, and that was the harmless error analysis.

[00:06:35] Speaker 01:
How do you respond to the argument, Mr. Ratliff's argument, that a new medical examination could have established that element?

[00:06:48] Speaker 02:
I don't think it could, Your Honor.

[00:06:50] Speaker 02:
Why not?

[00:06:52] Speaker 02:
That was based pretty much entirely on Mr. Ratliff's testimony, which was later, which was discredited.

[00:07:00] Speaker 02:
And so I think it's still a new medical exam.

[00:07:02] Speaker 02:
Couldn't establish that he had

[00:07:05] Speaker 02:
40 years ago started to have tinnitus, which is based on his testimony.

[00:07:10] Speaker 01:
So your point is that the medical examination would be based on the personal knowledge of the person performing the medical examination would be based on his medical condition at that time, as opposed to providing credible evidence of an event having occurred while he was in service.

[00:07:31] Speaker 01:
Is that what you're saying?

[00:07:32] Speaker 02:
Yes, Your Honor.

[00:07:46] Speaker 00:
Ms.

[00:07:46] Speaker 00:
Cramer, do you have anything else for us?

[00:07:49] Speaker 02:
No, Your Honor, except to ask that the court dismiss this case because it involves reviewing factual determinations or in the alternative to affirm the Veterans Court decision.

[00:08:02] Speaker 00:
Thank you.

[00:08:03] Speaker 00:
Ms.

[00:08:04] Speaker 00:
Gentile, you have a substantial amount of time for rebuttal if you want to use it, some or all of it.

[00:08:12] Speaker 03:
Thank you, Your Honor.

[00:08:13] Speaker 03:
First, I'd like to address the issue

[00:08:20] Speaker 03:
any facts or apply any facts to the law.

[00:08:22] Speaker 03:
We don't have any facts that aren't in the state.

[00:08:26] Speaker 00:
Can I just ask you to address the harmless air determination?

[00:08:29] Speaker 00:
The metrics seem to rely on the board's findings that Mr. Ratliff's testimony about in-service occurrence was incredible and that whatever other air was in play, that needed to be established and therefore

[00:08:44] Speaker 00:
made all those other errors harmless.

[00:08:46] Speaker 00:
What's wrong with that?

[00:08:48] Speaker 00:
I mean, first of all, we can't review that, right?

[00:08:50] Speaker 00:
That application, the harmless error standards and facts would be under review.

[00:08:54] Speaker 00:
But what's wrong with the Veterans Court doing that as a matter of law?

[00:09:02] Speaker 03:
As a matter of law, the Veterans Court is prohibited from engaging in that level of de novo fact-finding or resolving matters

[00:09:12] Speaker 03:
Such as?

[00:09:14] Speaker 00:
OK, I get where you're going, but how is it to know about fact finding when they're not themselves addressing Mr. Atlas credibility, but saying the board has made a credibility finding already?

[00:09:26] Speaker 00:
And so based upon the fact finding by the board, we find harmless error.

[00:09:32] Speaker 00:
They're entitled to do that, right?

[00:09:33] Speaker 00:
They're entitled to rely on fact findings of the board in making a harmless error determination.

[00:09:38] Speaker 03:
Yes, Your Honor.

[00:09:39] Speaker 03:
The question of whether the Veterans Court was correct when it found that the board provided a foundation is a separate question from the board holding that that foundation was adequate.

[00:09:51] Speaker 03:
Now, setting aside the fact that I couldn't find a foundation in the board's decision, but looking at the Veterans Court reason, the Veterans Court description for its holding, that that foundation was adequate,

[00:10:06] Speaker 03:
That's a matter of law.

[00:10:08] Speaker 03:
That's a question of whether the foundation of the Veterans Court described actually met the requirements of Fountain or wasn't, for other reasons, unlawful.

[00:10:18] Speaker 03:
And under Fountain, Colvin, and Kahana it was because it contained no medical evidence to support what the court found to be the board's reasonable expectations of what should or should not have appeared in the records that were silenced.

[00:10:32] Speaker 03:
That was a de novo fact finding by the court.

[00:10:34] Speaker 03:
And it was also, the other thing that the court did that was beyond the reach of a harmless error review was to reweigh a completely different looking body of evidence in order to reach the same conclusion that the board did about Mr. Ratliff's credibility.

[00:10:50] Speaker 03:
And then there are debatable matters here.

[00:10:52] Speaker 03:
We have, the Veterans Court found that Mr. Ratliff had not satisfied the second element of service connection.

[00:10:58] Speaker 03:
It was the in-service inference.

[00:11:00] Speaker 03:
But at MOS alone, the board acknowledged that Mr. Bradley was a canning crewman.

[00:11:06] Speaker 03:
And we know that under the M21, people with Mr. Bradley's MOS are supposed to have conceded, or VA is supposed to concede hazardous in-service noise exposure for people with that MOS.

[00:11:21] Speaker 03:
So it's not the case, but that's undebatable.

[00:11:24] Speaker 03:
In addition, an exam could establish that.

[00:11:26] Speaker 03:
Even if we look at the conclusion of the exam, it happens to be,

[00:11:30] Speaker 03:
insufficient for other reasons, that examiner did provide a statement as to in-service exposure, and that speaks directly to the second element.

[00:11:40] Speaker 03:
So there are several reasons why the Veterans Court overreached this harmless error analysis as far as de novo fact-finding, legal adequacy of that foundation, and resolving debatable matters that the board should have resolved.

[00:12:04] Speaker 00:
Thank you.

[00:12:05] Speaker 00:
Thank you, Ms.

[00:12:05] Speaker 00:
Gentile.

[00:12:06] Speaker 00:
Thank you, Ms.

[00:12:06] Speaker 00:
Kramer.

[00:12:07] Speaker 00:
Case 21-1518 is submitted.