[00:00:00] Speaker 00:
So our first case this morning is Raymond Roan versus the Secretary of Veterans Affairs, 2021-21-87.

[00:00:08] Speaker 00:
Mr. Sherman?

[00:00:15] Speaker 00:
No, I'm sorry, Mr. Doiapis.

[00:00:19] Speaker 00:
Did I pronounce it correctly?

[00:00:20] Speaker 02:
Dohakis, Your Honor.

[00:00:21] Speaker 00:
Dohakis.

[00:00:22] Speaker 02:
Good morning, and may it please the Court, on behalf of Mr. Roan, I thank this Court for the opportunity to present his appeal.

[00:00:28] Speaker 02:
Mr. Roan asks this Court to consider two statutes, 38 U.S.C.

[00:00:32] Speaker 02:
5107B and 7261B1.

[00:00:34] Speaker 02:
5107B states, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.

[00:00:48] Speaker 02:
7261B1 says, in making determinations under section, subsection A, the Veterans Court shall review the record of proceedings

[00:00:58] Speaker 02:
and shall take due account of the Secretary's application of Section 5107B.

[00:01:03] Speaker 02:
Breyer.

[00:01:04] Speaker 00:
Counsel, do we have jurisdiction over this appeal?

[00:01:08] Speaker 00:
Isn't that simply an application of water facts?

[00:01:11] Speaker 02:
No, Your Honor.

[00:01:12] Speaker 02:
We are not.

[00:01:13] Speaker 02:
Mr. Rohn does not challenge the determination to affirm the Board's decision.

[00:01:20] Speaker 02:
What Mr. Rohn is asking this Court to do is look at the

[00:01:25] Speaker 02:
the way that 5107B was used and the proper interpretation of that statute when the Veterans Court reviews the Board's interpretation or application of 5107B.

[00:01:38] Speaker 02:
And primarily what Mr. Roan asked this Court to do is to read 5107B to require that rather than summarize the evidence, as the Board did here, it must identify the positive and negative evidence

[00:01:54] Speaker 02:
Otherwise, it is impossible for the Veterans Court to review the Board's determination.

[00:01:59] Speaker 00:
That requirement isn't in the statute.

[00:02:03] Speaker 02:
It does not explicitly say that, Your Honor.

[00:02:06] Speaker 02:
But as we argued in our brief, in order to review and take due account of the application of that statute, the Veterans Court allowed the Board to simply summarize the evidence as opposed to balancing the positive and negative evidence.

[00:02:24] Speaker 02:
There's no findings from the Board with respect.

[00:02:27] Speaker 03:
How do we know that the Veterans Court didn't understand the Board as balancing the evidence?

[00:02:35] Speaker 03:
Didn't the Veterans Court look at this and say it looks like they took account of the benefit of the doubt rule?

[00:02:43] Speaker 02:
The Veterans Court did make that finding, Your Honor.

[00:02:45] Speaker 02:
However, I point you to page 6 of the appendix.

[00:02:50] Speaker 02:
The Court has not persuaded that the Board misapplied the benefit of the doubt.

[00:02:54] Speaker 02:
And then it says the Board, in this case, summarized the evidence, determined that despite the physical limitations, that he is not precluded from employment, and... Well, that sure sounds to me like they're looking at the way the Board is balancing it.

[00:03:08] Speaker 03:
They're looking at his limitations and the other evidence about what type of meaningful employment he can do, and they're finding no error in the Board's application.

[00:03:20] Speaker 03:
And beyond that, I mean, what do we have to review there?

[00:03:25] Speaker 03:
You agree that we can't review the Court's determination that the Board has applied this or not.

[00:03:32] Speaker 03:
That's an application of a lot of fact that we don't have jurisdiction over.

[00:03:36] Speaker 03:
And the Board's determination that there isn't.

[00:03:40] Speaker 03:
you know, that the benefit of a doubt rule doesn't apply is at least an application of law and effect, if not a purely factual question.

[00:03:46] Speaker 03:
So what is there for us to review?

[00:03:50] Speaker 02:
So, Your Honor, the primary question is the way in which the vectors work.

[00:03:55] Speaker 03:
I mean, is it really, are you really, I mean, are you pinning all your

[00:03:58] Speaker 03:
argument on the notion that we should import into 5107 a requirement that the board specifically tally up evidence and say this is positive, this is negative, this is neutral.

[00:04:12] Speaker 02:
Absolutely, Your Honor.

[00:04:13] Speaker 03:
Well, we're, I mean, that's really hard, isn't it?

[00:04:16] Speaker 03:
I mean, it's not in the statute.

[00:04:17] Speaker 03:
You didn't say anything in legislative history that suggests that that's what has to happen.

[00:04:22] Speaker 03:
Congress has just directed the Secretary to apply a benefit of the doubt rule and has left it to the Secretary to define what the content of that is.

[00:04:32] Speaker 03:
How can we impose a different kind of rules system on that if Congress hasn't spoken?

[00:04:38] Speaker 02:
The authority for that, Your Honor, is in 7261B1, where Congress directed the Veterans' Corps to take due account of the Secretary's application of this statute.

[00:04:50] Speaker 02:
And our argument is that,

[00:04:54] Speaker 02:
Unless the board does more.

[00:04:56] Speaker 03:
I get that argument, but isn't there already a procedure for that?

[00:05:01] Speaker 03:
If the Veterans Court finds that the board's explanation is insufficient, then it sends it back on a reasons and bases remand, right?

[00:05:11] Speaker 03:
I mean, that happens all the time when the Veterans Court finds that the board's explanation is insufficient.

[00:05:17] Speaker 03:
It determines that there's not a sufficient reasons and bases and remands for the board to explain itself.

[00:05:22] Speaker 03:
If it had found that problem here, it could have done that, right?

[00:05:26] Speaker 02:
It could have, Your Honor, except that under the interpretation that the Veterans Court applied, it allowed the Board to simply summarize the evidence as opposed to identifying the positive and negative evidence.

[00:05:39] Speaker 02:
There's no determination

[00:05:41] Speaker 03:
from the Board that... Well, if the Veterans Court has a problem with the way the Board does it, shouldn't your argument be directed to the Veterans Court?

[00:05:47] Speaker 03:
Maybe if they establish in their precedent a rule that you have to do this, that might stand up.

[00:05:53] Speaker 03:
I have a feeling the government would appeal that.

[00:05:55] Speaker 03:
But, you know, I mean, I don't understand.

[00:05:57] Speaker 03:
If the Veterans Court didn't have a problem here in the way the Board applied 5261,

[00:06:03] Speaker 03:
and found that the record was sufficient for it to make a determination under, sorry, I'm getting the statutes mixed up on it, 50 something and 7261.

[00:06:12] Speaker 03:
If it found it sufficient under 7261 to review the board, then who are we to impose further requirements?

[00:06:21] Speaker 02:
Because, Your Honor, the, in order to, again, in order to apply the statute correctly and in order to fulfill its mandate from Congress,

[00:06:31] Speaker 02:
to take due account of the application of 5107B, there has to be a determination from the agency for the Court to review.

[00:06:39] Speaker 03:
But there was.

[00:06:40] Speaker 03:
This is the problem, is the Board did take account.

[00:06:43] Speaker 03:
The Veterans Court found its explanation sufficient and it affirmed.

[00:06:47] Speaker 02:
It affirmed, Your Honor, but it did so in by accepting a summary of the evidence.

[00:06:55] Speaker 02:
that did not tell anyone this is positive, this is negative, or at least give some indication that the Board considered some evidence positive or some evidence negative.

[00:07:03] Speaker 02:
I don't even really understand that.

[00:07:04] Speaker 03:
I mean, didn't the Board explain that here are his disabilities, which are presumably positive for him?

[00:07:10] Speaker 03:
But yet there's evidence showing that he can work, which is presumably negative.

[00:07:15] Speaker 03:
Are you really just saying they didn't put a little check mark and say positive and a little check, you know, a negative mark and say a negative?

[00:07:22] Speaker 02:
Yes, Your Honor.

[00:07:23] Speaker 02:
And we think that 5107B requires that because it, the Veterans Court reviews determinations from the board.

[00:07:30] Speaker 02:
They cannot surmise or guess what the board meant when it summarizes evidence.

[00:07:35] Speaker 02:
The Veterans Court can only review the.

[00:07:37] Speaker 03:
Well, that sentence you were about ready to read to us of the summary pretty much tells the Veterans Court what the Board thought, which was, here's what we think is in support of him and here's why we're not going to give him benefits because, because he still can work.

[00:07:52] Speaker 02:
And that's one way to read it, Your Honor, but we don't know that.

[00:07:54] Speaker 03:
What's the other way to read it?

[00:07:55] Speaker 02:
Well, the other way is that there was, the problem with what the Board did and what the Veterans Court allowed it to do.

[00:08:04] Speaker 02:
is that we don't know how much is on each side.

[00:08:09] Speaker 02:
The statute is very clear that we have to balance the evidence.

[00:08:12] Speaker 02:
And the board made a finding, which was the Veterans Court affirmed.

[00:08:16] Speaker 03:
I mean, but you're not talking about actually tallying up and say here are three pieces in favor and three pieces in disfavor, and therefore it's, you know, give them the benefit of the doubt.

[00:08:27] Speaker 03:
I mean, didn't we just address what it meant to

[00:08:30] Speaker 03:
to apply the benefit of a doubt rule in an on-bond case, and isn't it?

[00:08:35] Speaker 03:
I mean, you know that case, right?

[00:08:36] Speaker 03:
It has a standard that's not particularly quantitative.

[00:08:39] Speaker 04:
Well, and this correct standard wasn't used here, but you're not arguing with that.

[00:08:44] Speaker 04:
You're not complaining about the use of ponderance.

[00:08:47] Speaker 02:
No, Your Honor.

[00:08:48] Speaker 02:
And we recognize that in Lynch that the terminology changed, but we don't have a problem with what the Board did with that respect.

[00:08:55] Speaker 02:
Our biggest complaint with the Board's decision and what the Veterans Court allowed

[00:09:00] Speaker 02:
was that we can't be certain and the Veterans Court can't be certain that the Board properly applied 5107B by simply summarizing the evidence.

[00:09:10] Speaker 04:
Kennedy Well, what's happening now at the Board and the Veterans Court?

[00:09:14] Speaker 02:
Have they discarded the preponderance standard?

[00:09:21] Speaker 02:
The Veterans Court has said, and most appellants that I've seen at least have agreed, that when the board uses preponderance, it generally equates to what Lynch described as a persuasive.

[00:09:36] Speaker 02:
Kennedy And still using it?

[00:09:37] Speaker 02:
Some board decisions were prior to Lynch.

[00:09:39] Speaker 02:
I don't think the board today

[00:09:42] Speaker 02:
unless it sneaks past one of the board members, Your Honor, but they've gotten the message that that preponderance.

[00:09:49] Speaker 02:
Keep in mind, this board decision was done some years ago prior to Lynch, so they were still using the preponderance standard.

[00:09:56] Speaker 02:
But again, our main, our biggest issue with what the board did is that it never, it didn't give enough information to the Veterans Court to allow it to perform its role under 7261B1.

[00:10:13] Speaker 04:
evidence was an approximate balance or not, why do they need the board to give them a roadmap for that?

[00:10:23] Speaker 02:
Because whether evidence is positive or negative, Your Honor, is a factual matter.

[00:10:27] Speaker 02:
And under 7261C, the Court can only review factual matters for clear error.

[00:10:33] Speaker 02:
It cannot do so de novo.

[00:10:36] Speaker 02:
And so

[00:10:38] Speaker 02:
By summarizing, again, by summarizing the evidence, the Board doesn't give enough information.

[00:10:43] Speaker 04:
Kennedy And is an approximate balance test a factual determination?

[00:10:46] Speaker 02:
It is, Your Honor.

[00:10:46] Speaker 02:
But before we can look at balancing the evidence, we have to know what the evidence supports.

[00:10:53] Speaker 02:
Is it positive or is it negative?

[00:10:55] Speaker 02:
And here the Board never told us that.

[00:10:57] Speaker 02:
Again, summarize the evidence.

[00:10:59] Speaker 02:
And so what the Court is now doing, the Veterans Court was doing under its interpretation

[00:11:06] Speaker 02:
from their summary, yes, we think that the Board thought this was positive and we think this was negative, and therefore we're going to affirm.

[00:11:16] Speaker 00:
And for us to review that, it sounds like application of law to fact.

[00:11:21] Speaker 02:
No, Your Honor.

[00:11:22] Speaker 02:
Again, we are not asking this Court to disturb the finding that the Veterans

[00:11:32] Speaker 02:
We're not asking this Court to review the Veterans Court's ultimate finding.

[00:11:35] Speaker 02:
What we're asking this Court to do is to look at the legal standard and the interpret.

[00:11:40] Speaker 00:
But to see whether they did consider the positives and the negatives, we would have to apply the law to the facts, wouldn't we?

[00:11:52] Speaker 02:
Yes, Your Honor, but again, that's not what we're asking this Court to do.

[00:11:55] Speaker 02:
All we're asking this Court to do is to look at 5107B.

[00:11:59] Speaker 03:
What if we think the Board actually already has done what you're asking?

[00:12:02] Speaker 03:
asking us to do, which is the Board has looked at the evidence of the record, they've described it, and in their description you can infer what they characterize as positive and what they characterize as negative.

[00:12:15] Speaker 02:
My response to that, First, Your Honor, is that an inference is not a review of a finding.

[00:12:20] Speaker 02:
And so even though in some instances the Court may do that, but not in a under 7261 seat, the Board has to make the indetermination

[00:12:32] Speaker 02:
And the Court is not permitted by a statute to infer what they think the Board might have thought when it summarized the evidence.

[00:12:40] Speaker 02:
And so, again, the interpretation of 5107B should be read to the Court.

[00:12:46] Speaker 03:
Breyer – It really sounds to me like if you want this rule imposed, you should ask the Secretary for rulemaking on this effect or go to Congress.

[00:12:54] Speaker 03:
I mean, it's nowhere in either of these statutes that it specifically lays out this tallying up of

[00:13:01] Speaker 03:
you know, negative and positive.

[00:13:03] Speaker 03:
It's more general.

[00:13:04] Speaker 03:
It's, you know, you apply the benefit of the doubt rule, and it doesn't, it leaves it to the Secretary to define what the content of that is.

[00:13:13] Speaker 02:
That may be, Your Honor, but, and I'll save the rest for rebuttal, but I think that inherent in deciding whether the positive and negative evidence is in balance, you have to define it, or at least identify it.

[00:13:25] Speaker 00:
We will give you your full rebuttal time of 3 minutes.

[00:13:28] Speaker 02:
Thank you, Your Honor.

[00:13:29] Speaker 00:
Ms.

[00:13:29] Speaker 00:
Baig.

[00:13:37] Speaker 01:
May it please the Court?

[00:13:39] Speaker 04:
Do you agree that the Board and the Veterans Court have now abandoned the preponderance standards that we told them to get rid of?

[00:13:48] Speaker 01:
I agree that this Court's decision in Lynch, which clarified Ortiz and decided that the persuaded bilingual should be used instead of the preponderance language, is something that... I don't think that's quite an accurate description of Lynch.

[00:14:03] Speaker 04:
What it said is you shouldn't use the

[00:14:05] Speaker 04:
standard, you should be looking to approximate balance.

[00:14:10] Speaker 01:
I think looking at Lynch, the Court said that Ortiz correctly established that the benefit of the doubt rule does not apply when a fact finder is persuaded by the evidence, and that Ortiz also made clear that under its formulation, a finding by the preponderance of the evidence reflects that the Board has been persuaded.

[00:14:30] Speaker 01:
So and I think as Mr. Duhaket is.

[00:14:32] Speaker 04:
Okay.

[00:14:32] Speaker 04:
But my question was have they abandoned the preponderance

[00:14:36] Speaker 04:
Are you, have you stopped arguing for the preponderance standard?

[00:14:41] Speaker 01:
I think that, as Mr. Dohaquez notes, that the Board and the Veterans Court have started using the persuaded by language, but we think that in Lynch it basically said that Ortiz understood that the preponderance of the evidence standard

[00:14:56] Speaker 01:
that the Board has been persuaded.

[00:14:58] Speaker 01:
So it's not that they abandoned the standard exactly, but they are tailoring the language to reflect this Court's decision in much.

[00:15:05] Speaker 04:
Kennedy Well, it would be nice if they did what the statute told them to do, which is to decide whether it's an approximate balance.

[00:15:12] Speaker 01:
Well, I think that's what the Board has done and the Veterans Court has done and is doing right now.

[00:15:18] Speaker 01:
As Mr. DeHawkes and this Court noted, the Board used the preponderance of the evidence language because its decision came out prior to this Court's decision in Lynch.

[00:15:28] Speaker 01:
However, again, the Court in Lynch said that Ortiz made clear that a finding by preponderance of the evidence reflects that the Board has been persuaded.

[00:15:37] Speaker 01:
Our position is that the Board, by using the preponderance of evidence standard, was persuaded.

[00:15:43] Speaker 01:
And the Veterans Court also used the language, not persuaded, that the Board misapplied the benefit of the doubt rule.

[00:15:52] Speaker 01:
We do think that this Court should, in the first instance, dismiss Mr. Roan's appeal, either for failure to exhaust or lack of jurisdiction.

[00:16:01] Speaker 01:
We did address the jurisdictional issue exhaustively in our brief.

[00:16:05] Speaker 01:
We did also address the failure to raise the arguments below.

[00:16:09] Speaker 01:
We do note that Mr. Roan did not address those arguments in his reply brief.

[00:16:14] Speaker 01:
Moving to just a few points on the merits.

[00:16:18] Speaker 03:
Isn't the argument he's making about requiring the board to tally up what's positive and negative, isn't that a pure legal interpretation of the statute?

[00:16:30] Speaker 01:
We think that the way that Mr. Grone is framing the arguments regarding 5107 and 7261, they are framed as asking for legal interpretations of the statute.

[00:16:42] Speaker 03:
Which is what we would normally have jurisdiction over.

[00:16:44] Speaker 01:
It's what the Court would normally have jurisdiction over, but I think the Court noted, and we noted in our briefs, there's a few problems with this.

[00:16:51] Speaker 01:
First, the Veterans Court did not make an interpretation of 5107 or 7262.

[00:16:56] Speaker 03:
Was this argument presented to them?

[00:16:59] Speaker 01:
No, that's, that was going to be my next point.

[00:17:01] Speaker 01:
They would not have had the reason to because Mr. Rowan didn't develop those arguments.

[00:17:06] Speaker 01:
He did cite the statutes in his brief, we acknowledge that, but he basically just cited the language and then said that the board's explanation wasn't enough.

[00:17:15] Speaker 01:
He certainly didn't raise the argument regarding a checklist of positive and negative, or that the board, or that the Veterans Court should conduct a de novo review.

[00:17:24] Speaker 01:
So.

[00:17:24] Speaker 04:
Breyer But he's right about the process.

[00:17:26] Speaker 04:
sense that what the board should be doing is coding up the evidence on each side and deciding whether it's an approximate balance.

[00:17:34] Speaker 04:
What he's arguing for in the next step is that they have to articulate that weighing in detail and the opinion seems not to be in the statute.

[00:17:44] Speaker 04:
But in terms of summing up the evidence on each side and considering the approximate balance, that's what they're supposed to do.

[00:17:52] Speaker 01:
The board is supposed to take account of the positive and negative evidence and determine whether it's an approximate balance such that the benefit of the doubt rule should apply.

[00:18:03] Speaker 01:
But again, that's not what Mr. Rohn is asking here and that's not what the board failed to do.

[00:18:09] Speaker 01:
What Mr. Rohn is asking, as you said, is for that additional step where they have to specifically tally evidence as positive or negative.

[00:18:17] Speaker 01:
I think as Judge Hughes pointed out, you know, say three pieces of positive, three pieces of negative, oh, maybe that's approximate balance.

[00:18:23] Speaker 01:
First of all, I think that's an issue for a case later this week in Maddox v. McDonough.

[00:18:29] Speaker 01:
But again, as I think Judge Hughes noted, that's simply not really.

[00:18:34] Speaker 01:
Excuse me?

[00:18:35] Speaker 04:
What's happening later this week?

[00:18:37] Speaker 01:
There is a case, I think, called Maddox v. McDonough, where I think that the same law firm that's arguing here is arguing that if there is the same amount of pieces of evidence on both sides, that that should be considered an approximate balance, regardless of whether the persuasiveness of each piece of evidence.

[00:18:59] Speaker 03:
You mean the sheer numbers, like two doctors opinion on this side, two doctors opinion on this side?

[00:19:03] Speaker 03:
And that's approximate balance?

[00:19:05] Speaker 01:
I think that's what they're arguing in Maddox.

[00:19:07] Speaker 01:
Okay.

[00:19:08] Speaker 01:
I'm not counsel in that case, so my knowledge is cursory, but that's my understanding.

[00:19:15] Speaker 01:
But again, I think this Court's decision in

[00:19:20] Speaker 01:
Ferguson and DeLoach foreclosed Mr. Rohn's argument, specifically.

[00:19:26] Speaker 03:
Let me just, can I just get you back to the jurisdictional point on this, because you, I think, frame a certain way there is a legal interpretation, but is your point, I think you were getting there and then you got questions, is that that interpretation wasn't raised or wasn't relied upon by the Veterans Court, so it doesn't come within our

[00:19:44] Speaker 03:
which is to review legal questions relied upon by the Veterans Court.

[00:19:49] Speaker 01:
Right.

[00:19:49] Speaker 01:
I think that the failure to raise these arguments and put the Court on notice that it should be responding to them both deprives this Court of jurisdiction in the sense that Your Honor mentions and presents a waiver question as well.

[00:20:01] Speaker 03:
Well, that's my question is how do we determine whether it was sufficiently relied upon to be within our jurisdiction but then forfeit it?

[00:20:09] Speaker 03:
What's the line between not relied upon or forfeited?

[00:20:13] Speaker 03:
I mean it does matter here because it matters as to whether we have jurisdiction and then conclude he's forfeited it assuming we're going this way or whether there's no jurisdiction because it wasn't relied on.

[00:20:28] Speaker 01:
I think that to an extent obviously these issues in waiver versus jurisdiction are intertwined in this particular case, but I think that this Court does not have jurisdiction because Mr. Roan didn't raise and therefore the CAVC did not interpret 5107 or 7262.

[00:20:46] Speaker 01:
But alternatively, if this Court finds that it does have jurisdiction because they're legal questions, Mr. Roan still failed to raise them to put the Court on notice.

[00:20:54] Speaker 01:
And therefore, waivers should apply.

[00:20:56] Speaker 01:
So I think our argument is, in the first instance, there's no jurisdiction.

[00:20:59] Speaker 01:
But even if there is, prudential reasons do not favor hearing the arguments, because Mr. Roan didn't raise them below.

[00:21:11] Speaker 04:
Okay.

[00:21:12] Speaker 04:
Has the Board of Veterans Appeals ever decided a case on the ground that the evidence is in approximate balance, and therefore the veteran wins?

[00:21:23] Speaker 01:
I am not incredibly familiar with the Board's specific decisions on when they have found that they're.

[00:21:30] Speaker 04:
You're not aware of any such case.

[00:21:32] Speaker 01:
I'm not aware of one way or the other.

[00:21:34] Speaker 01:
I'm sure the Board must have decided cases where they found approximate balance and therefore gave.

[00:21:39] Speaker 04:
I've never heard of one.

[00:21:40] Speaker 01:
I'm not aware of that.

[00:21:43] Speaker 01:
I can, of course, go back and check if the Court likes, but I would have assumed that at some point in its history the Board would have addressed it.

[00:21:51] Speaker 01:
In that case, I would assume that the veteran would not have appealed it and the government can't appeal from those types of decisions.

[00:21:57] Speaker 01:
So that may be why it hasn't come in front of this Court before.

[00:22:01] Speaker 01:
I do just want to note very quickly that this Court in Ferguson did hold that the language of 5107B is ambiguous.

[00:22:13] Speaker 01:
And therefore, there should be no further interpretation needed of whether

[00:22:18] Speaker 01:
is appropriate, but even if it were ambiguous, it's just certainly not appropriate to essentially write in the language of a regulation such that a parent is asking.

[00:22:30] Speaker 01:
Finally, I'll just quickly note that this Court's decision in Deloach

[00:22:34] Speaker 01:
should foreclose the merits of Appellant 7261 argument, because the Court, in that case, appeared to expressly disagree with the Appellant's argument that the Veterans Court has the duty to independently weigh the evidence to determine whether the Board's factual findings are clearly erroneous.

[00:22:52] Speaker 01:
Accordingly, and unless this Court has any other questions, we respectfully request that this Court dismiss or affirm.

[00:23:01] Speaker 00:
Thank you.

[00:23:04] Speaker 00:
There's three minutes for rebuttal.

[00:23:08] Speaker 02:
Thank you, Your Honor.

[00:23:10] Speaker 04:
Has there ever been a case in which the board has found that the evidence is an approximate balance in the veterans?

[00:23:17] Speaker 02:
It does occasionally happen, Your Honor.

[00:23:19] Speaker 02:
However, I will say in my experience representing hundreds of veterans, the typical course is that when we note that the evidence is an approximate balance, the board will order additional development and then naturally the VEA exams come back as unfavorable.

[00:23:34] Speaker 02:
And so this is, and that's a great point as to why 5107B should be interpreted to require the board to identify the positive and negative evidence, because until they do that, we don't know whether they're properly applying the benefit of the doubt or properly determining that the evidence persuasively weighs against the veteran.

[00:24:04] Speaker 02:
To your point again, Judge Dyke, it is the Veterans Court and we need to be confident that the Veterans Court and the Board are properly applying the preponderance of the evidence, I'm sorry, the benefit of the doubt standard.

[00:24:18] Speaker 02:
And we cannot do that until they identify the positive and negative evidence.

[00:24:22] Speaker 02:
With respect to the jurisdiction, I want to point out first that Ferguson, as we pointed out in our reply brief, predated this Court's jurisdictional amendments, which went from an issue to a case

[00:24:34] Speaker 02:
jurisdiction.

[00:24:36] Speaker 02:
And so this Court's jurisdiction is on a, is, is, allows it to review a rule of law that the Veterans Court relied upon.

[00:24:45] Speaker 02:
And we, again, assert that because the Veterans Court allowed a summary of the evidence as opposed to identification of positive and negative evidence, it relied upon an interpretation of 5107B that

[00:24:58] Speaker 02:
this Court's input as to what does it really require.

[00:25:02] Speaker 03:
So if we agree with you that we have jurisdiction, why have I forfeited this argument?

[00:25:06] Speaker 03:
Because it's an argument that should have been made to the Veterans Court about requirements the Veterans Court should be imposing.

[00:25:14] Speaker 02:
Typically, yes, Your Honor, but again, I think that the Court's jurisdiction has identified and forced you.

[00:25:18] Speaker 03:
I'm not talking about jurisdiction.

[00:25:19] Speaker 03:
Now, let's just assume you're right, that because of the case jurisdiction and because they relied upon the statute,

[00:25:27] Speaker 03:
that implicitly relied on an interpretation that you're not taking issue with.

[00:25:31] Speaker 03:
You didn't make these arguments below, right?

[00:25:34] Speaker 02:
Not to this detail, Your Honor, but the appellant did argue to the Veterans Court that the Board misapplied it, and the Court said no.

[00:25:47] Speaker 03:
Well, they did.

[00:25:48] Speaker 03:
But you didn't make the specific argument about identifying positives and negatives.

[00:25:53] Speaker 03:
So why isn't that forfeited?

[00:25:56] Speaker 02:
Well, again, because the Veterans Court reviewed and made the determination.

[00:26:01] Speaker 03:
That's not a forfeiture question.

[00:26:03] Speaker 03:
That's a jurisdictional question.

[00:26:04] Speaker 03:
You understand the forfeiture rule, I know.

[00:26:06] Speaker 03:
Why isn't it forfeited when you did not make this specific argument to the Veterans Court?

[00:26:11] Speaker 03:
Particularly because it's about a legal interpretation that you want the Veterans Court to impose for its own benefit.

[00:26:19] Speaker 03:
Shouldn't it decide whether it's necessary, not us?

[00:26:23] Speaker 02:
Certainly, Your Honor.

[00:26:24] Speaker 02:
I mean, in order from this.

[00:26:25] Speaker 03:
Then why didn't you make it to the Veterans Court?

[00:26:29] Speaker 02:
I don't have an answer for that, Your Honor.

[00:26:30] Speaker 02:
Obviously, I wasn't counseled there.

[00:26:32] Speaker 02:
But I do think that because the Veterans Court did rely, again, I'll just rest on the notion that the Veterans Court relied upon an interpretation that permits them to affirm a determination that a summary of the evidence is sufficient to allow it to perform its review under 72-61B1.

[00:26:52] Speaker 02:
And without a determination as to which evidence is positive or negative, the Veterans Court is left to guess what the board actually wanted.

[00:27:02] Speaker 02:
And I see that my time is up.

[00:27:10] Speaker 02:
Just again, Your Honor, we think that we asked this Court to interpret the 5107B to require the VA to identify the positive and negative evidence in order to permit the Veterans Court to review 107261B1.

[00:27:25] Speaker 02:
Thank you.

[00:27:26] Speaker 00:
Breyer Thank you, counsel.

[00:27:28] Speaker 00:
We appreciate both arguments.

[00:27:32] Speaker 00:
The case will be taken on a submission.