[00:00:00] Speaker 03: Next case is Sullivan versus McDonough, number 21-1459. [00:00:04] Speaker 03: Mr. Carpenter, you have reserved five minutes of your time for rebuttal, correct? [00:00:11] Speaker 03: Excuse me, Your Honor. [00:00:12] Speaker 03: Yes, that's correct. [00:00:13] Speaker 03: Okay. [00:00:15] Speaker 04: We're ready to start when you are. [00:00:17] Speaker 04: Thank you very much, Your Honors. [00:00:17] Speaker 04: May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Daniel Williams. [00:00:22] Speaker 04: Mr. Daniel Williams is deceased and the current case caption is with a substituted appellant as noted by the Court. [00:00:29] Speaker 04: Mr. Williams' case is about his entitlement to de novo review by the Veterans Court of a question of law as to whether or not the board, under the applicable legal standard, to rebut the second prong of the presumption of sound condition under 38 USC 1111. [00:00:46] Speaker 03: But what is the question of law that... The sufficiency? [00:00:50] Speaker 03: Because I'm going to tell you, it seems to me that your appeal is asking us to review this, to review the factual findings of [00:00:58] Speaker 04: I disagree, your honor, obviously, but I believe that the reason that it appears that way is because of the use of the wrong legal standard. [00:01:14] Speaker 04: Well, let me back up to your original question. [00:01:17] Speaker 04: The question of law is, did the board meet its evidentiary burden to rebut both prongs of the presumption of soundness? [00:01:27] Speaker 04: this court's case in Wagner. [00:01:29] Speaker 03: That's a legal question? [00:01:31] Speaker 04: Yes, it is, Your Honor. [00:01:33] Speaker 04: It is the sufficiency of the evidence to meet that legal standard. [00:01:39] Speaker 04: That has been the law of the Veterans Court. [00:01:43] Speaker 03: To answer that question, what do we have to do, reweigh the evidence? [00:01:48] Speaker 04: No, Your Honor, you have to determine whether or not the Veterans Court applied the legal standard for 1111 or the Veterans Court [00:01:55] Speaker 04: as asserted by Mr. Williams applied the legal standard for 1153 and those are two different legal standards. [00:02:03] Speaker 01: I have to be honest I was having trouble deciphering your briefing can you just tell me [00:02:09] Speaker 01: What was the legal standard that the Veterans Court used that you believe to be the incorrect standard? [00:02:17] Speaker 01: Can you pinpoint the standard that they articulated that you are saying, aha, that's the wrong standard? [00:02:23] Speaker 04: Yes, Your Honor. [00:02:24] Speaker 04: At page seven of the decision, at the appendix seven, the paragraph that begins, the increase in disability refers to the overall worsening of the disability and [00:02:38] Speaker 04: The rest of that paragraph cites two additional cases beyond this court's decision in Davis. [00:02:46] Speaker 04: All of those citations, and that was the criteria used by the Veterans Court to review the sufficiency of the evidence, was the legal standard for 1153. [00:03:01] Speaker 04: 1153 occurs when there has been a pre-existing condition. [00:03:07] Speaker 01: I just want to make sure I understand what the terms of the debate are. [00:03:11] Speaker 01: So it's this paragraph that you're taking issue with. [00:03:15] Speaker 01: Yes, sir. [00:03:16] Speaker 01: OK. [00:03:16] Speaker 01: And nothing else in this makes up this appeal. [00:03:20] Speaker 04: Well, actually, everything that flows from that [00:03:23] Speaker 04: which is the analysis made by the Veterans Court through that lens and the repeated references to what the veteran or the appellant did not show in the case of the legal standard for the presumption of sound conditions. [00:03:41] Speaker 04: the evidentiary burden is on the veteran personally on the dvd it is not on the veteran in eleven fifty three the initial evidentiary burden is on the veteran that's what distinguishes between those two uh... we know that the burden is on the veteran section one fifty three [00:04:01] Speaker 04: you know that by the cases that were referred to uh... the coming from this court's decision in davis uh... and citing the decisions of the veterans court in hunt and war those are eleven fifty three cases in which it was noted at entrance to serve under the board or the veterans court here put the burden on uh... the claimant [00:04:25] Speaker 02: as opposed to put the burden on the VA. [00:04:27] Speaker 04: In their analysis of whether or not the evidentiary burden had been met or the legal sufficiency of the evidence, yes, they did, Your Honor. [00:04:35] Speaker 02: They put the burden on your client. [00:04:37] Speaker 04: They put the burden on my client. [00:04:38] Speaker 02: Where do we see that? [00:04:39] Speaker 04: You see that in the language that follows this paragraph in which the court discusses the, I believe the reference made by the court was to undermine the examiner's decision. [00:04:53] Speaker 04: Let's try to put this in context. [00:04:55] Speaker 04: This case came about because a remand by the board that sent it back for a very specific VA medical opinion, because the record at that time did not include sufficient evidence to rebut the second prong of the presumption of soundness. [00:05:13] Speaker 04: That medical opinion in 2019, which is relied upon by the Veterans Court for its analysis, had to have met [00:05:22] Speaker 04: the legal standard of clear and unmistakable evidence to rebut the presumption that mister williams condition was not aggravated is that is it i'm sure is that there is the meaning of aggravated or aggravation the same in eleven fifty three and eleven eleven how does it differ is different as recited in this court's decision in wagner because in uh... eleven eleven [00:05:53] Speaker 04: The Congress put the entire burden on the secretary to rebut two prongs of that presumption in order for the presumption to fail. [00:06:04] Speaker 04: The second prong is not addressed until the first prong is rebutted by clear and unmistakable evidence. [00:06:13] Speaker 04: And that clear unmistakable evidence must be that there is an existence of a preexisting condition. [00:06:20] Speaker 04: That first prong was rebutted and we do not contest that. [00:06:24] Speaker 04: We contest whether the second prong was rebutted. [00:06:28] Speaker 04: And that second prong carries the co-equal, high evidentiary burden of clear and unmistakable evidence. [00:06:36] Speaker 04: And how is it different in 1153? [00:06:37] Speaker 04: In 1153, you start with the [00:06:41] Speaker 04: pre-existing condition having been noted at entrance. [00:06:45] Speaker 04: That is the trigger for 1153. [00:06:48] Speaker 02: But when it comes to aggravation, isn't it the very same test for aggravation? [00:06:54] Speaker 04: With respect, no, Your Honor. [00:06:56] Speaker 04: It is not. [00:06:56] Speaker 04: Because the difference is the Congress placed a burden on the veteran to come forward with evidence to get the benefit of the presumption of aggravation. [00:07:08] Speaker 04: That is substantively different [00:07:10] Speaker 01: from eleven eleven where did that happen here that happened here because nothing was noted in entrance and that but i'm saying in terms of what the veterans court did with the v a did how how can we see in in this record that the v a improperly did a burden shift to put the burden on the claimant to establish that there was no or that there was that [00:07:37] Speaker 04: Well, to be clear, Your Honor, we're not suggesting that this was an error by the VA or an error by the Board. [00:07:42] Speaker 01: We're suggesting that the Board... That's fine, but then show me where in the Veterans Court decision can I see that the Veterans Court erroneously put the burden on the claimant? [00:07:52] Speaker 04: By not making the analysis required by the evidentiary standard under the second prong of 1111. [00:07:59] Speaker 01: they put the burden on mister uh... we've got the medical evaluation board uh... the claimant separate from service and then also looked at the more recent medical evaluation of twenty nineteen and both of those concluded that there was no activation well no you're not been ultimately concluded that that is what that at the end of the [00:08:29] Speaker 04: veterans court mis-characterized the evidence in the VA examination that was remanded for and obtained in 2019. [00:08:39] Speaker 04: That's something we can review? [00:08:45] Speaker 04: You can review what it says, which is not consistent with the evidentiary burden that must be made. [00:08:53] Speaker 04: That is the purpose of a de novo review of [00:08:57] Speaker 04: meeting the legal sufficiency to rebut the evidentiary presumption of sound condition by clear and unmistakable evidence. [00:09:07] Speaker 04: And at appendix 42, that medical opinion simply states that it was the examiner's opinion that the veteran's active phase of symptoms precipitating his hospitalization constituted an intermittent flare-up. [00:09:24] Speaker 04: Intermittent flare-up is the [00:09:27] Speaker 04: evidentiary burden under 1153. [00:09:29] Speaker 04: That is the requirement by Congress of 1153 that the veteran comes forward with evidence to trigger the presumption of aggravation. [00:09:42] Speaker 04: That is a different statutory scheme than 1111. [00:09:46] Speaker 04: The burden under 1111 is never on the veteran unless and until both prongs of the presumption have been rebutted. [00:09:56] Speaker 04: And they were not rebutted in this case by the legally required evidence. [00:10:01] Speaker 04: And the entire analysis made from page seven to the end of the opinion of the Veterans Court did not address whether clear and unmistakable evidence was presented by that medical opinion, which it could not be because it doesn't address the critical question. [00:10:20] Speaker 04: There's only one question, and that is, was the condition not aggravated? [00:10:26] Speaker 04: And as this court said in Wagner, there are two ways in which the government can show that a condition was not aggravated. [00:10:35] Speaker 04: That's an affirmative negative showing that must be made by clear and unmistakable evidence. [00:10:42] Speaker 04: And that evidentiary burden was not met by the board. [00:10:47] Speaker 04: And Mr. Williams had a right to have a de novo review of that question of law. [00:10:52] Speaker 04: Was there legally sufficient evidence to rebut that presumption? [00:10:56] Speaker 04: And as this court said in Wagner, the way to do that, the secretary can establish that by showing by clear and unmistakable evidence either that there was no increase, which is not what was said in the 2019 opinion, or that any increase was the natural progression. [00:11:16] Speaker 04: That's the clear and unmistakable evidence that was required to have been in this record and was not. [00:11:22] Speaker 04: I'll reserve the balance of my time. [00:11:23] Speaker 04: Thank you. [00:11:24] Speaker 04: Thank you, Mr. Carver. [00:11:26] Speaker 03: Mr. Weiser, did I pronounce your name correctly? [00:11:28] Speaker 03: Weiser. [00:11:30] Speaker 03: Okay. [00:11:32] Speaker 03: You may proceed. [00:11:33] Speaker 00: May it please the court. [00:11:34] Speaker 00: I think the best place to start is simply the text of the Wagner decision itself. [00:11:37] Speaker 00: And I'm going to refer the court to page 1096 of the opinion where Wagner, as we understand it, it's best to disentangle how these two standards, 1111 and 1153 relate to each other. [00:11:50] Speaker 00: And Wagner explained under Roman numeral five that you can have [00:11:54] Speaker 00: a presumption of soundness under Section 1111. [00:11:58] Speaker 00: It has the two prongs, as Mr. Williams contended, that you have to show no pre-existing condition as well as no aggravation. [00:12:06] Speaker 00: Both of those have to be demonstrated by clear and convincing evidence. [00:12:09] Speaker 00: But the court made clear that in order to show a lack of aggravation, the VA must demonstrate there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. [00:12:21] Speaker 00: And the court expressly referenced 1153 as the source of that definition. [00:12:26] Speaker 00: So this court in Wagner instructed VA and the Veterans Court that when conducting the presumption of soundness analysis under 1111, once you reach the second prong and you're trying to determine has a condition been aggravated or not, the same definition under 1153 applies. [00:12:42] Speaker 00: Now we don't dispute that 1153 contains two elements. [00:12:46] Speaker 00: It contains both the definition of aggravation as well as the standard that must be met if there is a claim for aggravation standing alone. [00:12:54] Speaker 00: So as Mr. Williams contended, if the schizophrenia had been noted on his entrance paperwork, [00:13:00] Speaker 00: but there was some claim that it was aggravated during service, he would have to make that prima facie showing that the condition increased in severity or disability over the course of his service. [00:13:10] Speaker 00: And that is laid out in 1153. [00:13:13] Speaker 00: But 1153 also just lays out the definition of aggravation. [00:13:17] Speaker 00: And that definition, as this court in Wagner instructed, applies to the analysis under 1111. [00:13:23] Speaker 00: So if we turn back then to the Veterans Court decision here, in appendix seven, which was being discussed previously, [00:13:30] Speaker 00: Yes, the Veterans Court was citing two cases that were defining what aggravation means. [00:13:37] Speaker 00: Yes, some of those cases arose within the context of a claim for aggravation as distinct from a claim addressing the presumption of soundness. [00:13:45] Speaker 00: But it's clear in the text here, the Veterans Court is not shifting the burden or saying that the veteran has any obligation to make a prima facie showing. [00:13:52] Speaker 00: What the Veterans Court is doing is just what this court in Wagner instructed, looking to 1153 and how this court and the Veterans Court precedents have construed the definition of aggravation under 1153 and applying that definition when conducting the second prong of the analysis. [00:14:08] Speaker 00: And I would point out that two paragraphs later, after summarizing both the examiner's opinion as well as the contemporary evidence that demonstrated a lack of aggravation, the Veterans Court summarized its holding. [00:14:20] Speaker 00: And this is the second to last sentence in the, I suppose, the last full paragraph, if you don't count the one line paragraph. [00:14:29] Speaker 00: says that the consistency referring to the contemporary medical evidence with the other medical opinions strengthens the court's overall conclusion. [00:14:37] Speaker 00: Clear and unmistakable evidence exists to show that the veteran's disability was both pre-existing and not aggravated by service. [00:14:45] Speaker 00: So it's not merely as Mr. Williams brief concedes that the court articulated the correct standard a couple of pages earlier. [00:14:52] Speaker 00: We can see that in conducting the analysis itself, the court made clear that it understood the burden that had to be met, and it made a factual finding that the evidence met that burden, that there was clear and unmistakable evidence to show that Mr. Williams' condition was not aggravated during his service. [00:15:09] Speaker 00: The only last point I would make is in reference to the medical opinion itself, [00:15:14] Speaker 00: There appeared to be some quibble about the exact wording that was used in the medical opinion, but I would simply remind that the medical opinion itself is not a legal conclusion. [00:15:22] Speaker 00: It's simply factual evidence. [00:15:24] Speaker 00: There's nothing that says that the medical opinion itself has to use the same sort of legal deterministic language the court would use when applying the facts to the relevant legal standard. [00:15:34] Speaker 00: So the fact that the medical opinion itself did not say clear and unmistakable evidence doesn't demonstrate one thing or another. [00:15:41] Speaker 00: The medical opinion showed that whatever symptoms Mr. Williams experienced during his service, and the opinion of the medical examiner was nothing else than just intermittent flare-ups, did not in any way demonstrate the kind of permanent worsening of a disability that's required under 1111, incorporating the definition of 1153. [00:16:00] Speaker 02: Mr. Carpenter says we're confronted with the question of law as to whether there was legally sufficient evidence here. [00:16:06] Speaker 02: Is that a question that's presented to us, and can we reach it if it is? [00:16:11] Speaker 00: We don't believe that that's presented appropriately in this case, Your Honor. [00:16:14] Speaker 00: We acknowledge there may be some very limited circumstances where [00:16:18] Speaker 00: the same way a judge might determine that there is simply no evidence in a record that a jury could make a finding on. [00:16:23] Speaker 00: The court can take notice of a total lack of evidence on a relevant point on appeal here, but that's simply not the case. [00:16:30] Speaker 00: We have the 2019 medical examination. [00:16:32] Speaker 00: We have the evidence that's cited from the contemporary medical records, all of which [00:16:37] Speaker 00: at least or were available to the fact finder to demonstrate that Mr. Williams' condition was not aggravated during his service. [00:16:43] Speaker 00: So this would not be the kind of case where that principle could even apply because there is obviously relevant evidence in the record to address the aggravation prong. [00:16:52] Speaker 00: The only question, as I think some of your honors' questions alluded to at the beginning of this argument, is were they sufficient to then get the threshold of clear and unmistakable evidence. [00:17:01] Speaker 00: That's something that's within the purview of VA and the Veterans Court and not reviewable here by this court. [00:17:05] Speaker 02: And was that the basis for I think you made an alternative argument in your brief that perhaps we should dismiss this appeal? [00:17:12] Speaker 00: Yes, Your Honor. [00:17:12] Speaker 00: And again, referring to some of the Your Honor's questions at the beginning, it's difficult to comprehend exactly what the argument here is, if not an argument that the evidence simply did not rise to the threshold of clear and unmistakable. [00:17:26] Speaker 00: That would be an issue that is outside the scope of this court's jurisdiction. [00:17:30] Speaker 00: And so a dismissal on that ground would be appropriate. [00:17:33] Speaker 00: unless there are any other questions. [00:17:36] Speaker 00: We ask the court to affirm. [00:17:37] Speaker 00: Thank you. [00:17:40] Speaker 04: To be clear, the legal sufficiency of the evidence is not before this court. [00:17:45] Speaker 04: It was before the Veterans Court. [00:17:48] Speaker 04: This court's jurisdiction is limited by statute to interpretations of statutes and regulations. [00:17:54] Speaker 04: The relevant statute here is 1111. [00:17:59] Speaker 04: It is not 1153. [00:18:00] Speaker 04: The Veterans Court [00:18:03] Speaker 04: cannot lawfully introduce the legal standard of 1153 as a basis to affirm the question of law as to whether or not the board had the legally sufficient clear and unmistakable evidence to rebut the second prom. [00:18:24] Speaker 04: They did not. [00:18:26] Speaker 04: There is a difference at law between [00:18:29] Speaker 04: what is presented in 1153, it is not merely definitional. [00:18:35] Speaker 04: It is a separate, freestanding statutory presumption that affords a veteran who has a pre-existing condition noted at the entrance to service that requires the veteran to come forward and show that there was not just a flare-up, that there was in fact [00:18:57] Speaker 04: a substantial worsening of the condition while on active duty. [00:19:03] Speaker 04: That is the veteran's burden, which is produced by statute when there was a recognition of a pre-existing condition. [00:19:14] Speaker 04: This record is undebatable. [00:19:17] Speaker 04: This is an 1111 case because this man's schizophrenia was somehow not noted at entrance to service. [00:19:26] Speaker 04: he was permitted into service there is clear evidence in the record the worsening of his condition which is not his burden to show but the burden that the veterans court placed on him by relying upon the legal standard of eleven fifty three rather than the legal standard of eleven eleven which requires a formidable burden of clear and unmistakable evidence [00:19:53] Speaker 04: to show that the condition was not aggravated. [00:19:57] Speaker 04: The government stands before this court and says, but it doesn't have to rely upon the magic words in the medical opinion. [00:20:07] Speaker 04: Of course not, but it has to rely upon clear and unmistakable evidence. [00:20:13] Speaker 04: Where is it? [00:20:15] Speaker 04: The only job that the Veterans Court had in this case was to examine whether or not [00:20:21] Speaker 04: The record before the board included clear and unmistakable evidence. [00:20:25] Speaker 04: It did not. [00:20:27] Speaker 04: Therefore, the presumption was not rebutted. [00:20:30] Speaker 04: And that decision of the board should have been, as a matter of law, reversed using the correct legal standard, as interpreted by this court in Wagner of 1111. [00:20:42] Speaker 04: Unless there's further questions from the panel. [00:20:46] Speaker 04: Thank you, Mr. Connelly, for your argument. [00:20:50] Speaker 04: We thank the parties for their argument.