[00:00:00] Speaker 04:
Our next case for arguments is 22-1496, Bryant v. McDonough.

[00:00:04] Speaker 04:
Mr. Carpenter, please proceed.

[00:00:10] Speaker 01:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Zeke Bryant.

[00:00:14] Speaker 01:
Also appearing with me is counsel who represented Mr. Bryant before the Veterans Court, Ms.

[00:00:20] Speaker 01:
Amy Grytowski.

[00:00:23] Speaker 01:
I'd like to begin with the question of jurisdiction.

[00:00:26] Speaker 01:
This is not a question of application of law to

[00:00:29] Speaker 01:
This is a straight question of statutory interpretation that the Veterans Court relied upon when it affirmed the board's decision to deny service-connected compensation to Mr. Bryant.

[00:00:43] Speaker 01:
They did so by relying upon an interpretation of 1110, which allowed and permitted the board to deny service connection

[00:00:54] Speaker 01:
based upon a evaluation of the disability that took place based upon the 1969 hearing.

[00:01:01] Speaker 02:
1110 wasn't raised below, was it?

[00:01:09] Speaker 01:
It was implicitly raised below, Your Honor, because the entire case was about whether or not there was entitlement to service-connected compensation.

[00:01:17] Speaker 01:
And therefore, it was not possible for the Veterans Court not to have relied upon an interpretation

[00:01:23] Speaker 01:
when they expressly accepted the government's argument that something to do with the nineteen sixty nine uh... hearing test uh... was at a lesser level of disability which then required a causality or uh... ideology opinion in order to obtain service connection that is a misinterpretation of eleven ten

[00:01:50] Speaker 02:
The specific argument that Mr. Bryant... 1110, even if it is before us, says resulting from.

[00:01:58] Speaker 02:
It certainly sounds like causation.

[00:02:01] Speaker 01:
It certainly does sound like causation, Honor, but it is not a question of causation.

[00:02:08] Speaker 01:
It is a question of whether or not there is, under the correct legal standard, but for causation.

[00:02:18] Speaker 01:
And that but for causation is a lesser standard than the causation standard that was relied upon by the Veterans Court in affirming the board's decision.

[00:02:31] Speaker 01:
The Veterans Court in this case had the following undisputed facts in front of it.

[00:02:36] Speaker 01:
That Mr. Bryant's entrance examination showed no hearing impairment.

[00:02:41] Speaker 01:
That Mr. Bryant suffered an injury while on active duty from exposure to acoustic trauma.

[00:02:47] Speaker 01:
Second, or next, that while on active duty following his injury to his hearing, he was tested in 1969 by the armed services, which confirmed a functional loss of his hearing.

[00:03:01] Speaker 01:
Mr. Bryant then received multiple additional audiological examinations and then some several decades following his discharge in the early 1970s in 2012,

[00:03:15] Speaker 01:
He filed a claim for service-connected compensation for his hearing loss and underwent a VA examination for both hearing loss and tinnitus.

[00:03:26] Speaker 01:
The VA granted service connection for tinnitus but denied service connection for hearing loss.

[00:03:32] Speaker 01:
This denial was based upon a VA examiner's determination that his hearing loss was not caused by his military service

[00:03:40] Speaker 01:
because the hearing was not within the normal limits at time of separation.

[00:03:45] Speaker 01:
That is the incorrect test and legal standard for determining entitlement to compensation under the correct interpretation of 1110.

[00:03:53] Speaker 01:
The examiner further went on to say that there was no significant change in the threshold at separation and that this same examiner determined that his tinnitus was in fact the result of exposure to military.

[00:04:10] Speaker 01:
excuse me noises the plain language of eleven ten requires that the v eight shell pay compensation for a disability resulting from an in-service injury those are the undisputed facts in this case i'm sorry what is the import of the board's opinion here i mean i'm look at for example pages appendix eight one twenty two one twenty three and there's a lot more analysis here

[00:04:40] Speaker 03:
than simply, well, he didn't have hearing loss upon separation from the military.

[00:04:46] Speaker 03:
So therefore, that's the end.

[00:04:49] Speaker 03:
There's a lot more to it than that.

[00:04:51] Speaker 03:
There's discussion about how he didn't have any hearing loss or complain of any hearing loss in February 1975, that he denied having decreased hearing in March of 2009.

[00:05:03] Speaker 03:
There's just on both pages.

[00:05:07] Speaker 03:
There's a lot more analysis talking about interviewing the veteran.

[00:05:10] Speaker 03:
There's a lot more than just simply looking at one event.

[00:05:17] Speaker 01:
But with the specter, they're focused on the wrong end of the scope here.

[00:05:23] Speaker 01:
It is not what the evidence showed until after December of 2012 when the claim was made, and whether or not there was or wasn't

[00:05:35] Speaker 01:
a disability that was the same disability, i.e.

[00:05:39] Speaker 01:
hearing loss, that was identified in service.

[00:05:43] Speaker 03:
I guess my point is this, is that even if I had jurisdiction to review, there seems to be more evidence than what you've identified in your briefs in terms of it was relied on by the board to come up with its conclusion.

[00:05:59] Speaker 03:
So that's what I'm addressing here.

[00:06:02] Speaker 01:
I appreciate that.

[00:06:02] Speaker 03:
And you're telling me they shouldn't have relied on any of this.

[00:06:05] Speaker 01:
That's correct, Your Honor.

[00:06:10] Speaker 01:
In this case, the Veterans Court affirmed based upon accepting the proposition that something to do with the level or severity of the hearing loss as quantified while on active duty required an additional VA opinion, which they obtained.

[00:06:30] Speaker 01:
The VA opinion which they obtained was simply not necessary under the correct interpretation of 1110.

[00:06:38] Speaker 01:
Once the disability was established while on active duty, there was no further need for medical opinion.

[00:06:47] Speaker 04:
The problem is you'd like us to throw out the nexus requirement and Holton v. Shinseki absolutely adopts it as part of the 1110 interpretation.

[00:06:56] Speaker 04:
So how could we as a panel do what you're asking?

[00:06:59] Speaker 01:
Well, because in our view, the Holton decision relied in part on the Sheddon decision, and the Sheddon decision relied upon the Calusa elements, and the Calusa elements flow from the pleading requirement for a well-grounded claim.

[00:07:20] Speaker 01:
Well-grounded claim was abandoned or superseded, excuse me, by Congress when they enacted the VCAA.

[00:07:29] Speaker 01:
Therefore, we have to look to the interpretation of 1110 as has been made by this court in Saunders first and most recently in Spicer.

[00:07:40] Speaker 01:
And in Spicer, we understand now that the interpretation of 1110 is precluded from adding additional qualifiers.

[00:07:51] Speaker 01:
And that additional qualifier in this case would be adding on that causality requirement.

[00:07:59] Speaker 01:
That causality requirement was not necessary under the facts of this case because the disability itself was established in the record in 1969 based upon his audiological testing.

[00:08:16] Speaker 01:
That audiological testing established the disability.

[00:08:19] Speaker 01:
Under the correct interpretation of 1110, 1110 requires when a disability is shown to be

[00:08:28] Speaker 01:
related to service, that disability is entitled to compensation.

[00:08:36] Speaker 03:
Can I ask you another question?

[00:08:37] Speaker 03:
So if we exercise jurisdiction here, wouldn't we have to review every decision denying service connection because there's no nexus between disability and service?

[00:08:50] Speaker 03:
What makes this case different than other cases

[00:08:54] Speaker 03:
in which we'd be reviewing a determination that there's no service connection because of a lack of access.

[00:09:01] Speaker 01:
The first thing that makes this different is that in this case, there is undisputed evidence that a disability existed while on active duty as a result of his acoustic trauma, the injury that he experienced.

[00:09:16] Speaker 01:
The same acoustic trauma that was the underlying

[00:09:22] Speaker 01:
injury that supported the grant by the VA of service connection for tinnitus.

[00:09:28] Speaker 01:
Therefore, what you have in this case are two types of audiological disability, one tinnitus, one in hearing loss.

[00:09:40] Speaker 01:
The hearing loss was clearly established by the 1969 test because

[00:09:50] Speaker 01:
He came into service with the benefit of the presumption that he had no hearing loss.

[00:09:57] Speaker 01:
Therefore, when his hearing loss was quantified by the examination in 1969, he, at that point, met the requirements for consideration, for entitlement to be paid compensation.

[00:10:11] Speaker 01:
He does not make a claim until 2000.

[00:10:13] Speaker 04:
Your thought about this, Sam Carpenter, is that thereafter,

[00:10:17] Speaker 04:
If you look on the board's decision at page 122, they say that his surface records from 1975, that his audiological test results showed no hearing loss for VA purposes and in fact showed improvement in his hearing.

[00:10:33] Speaker 04:
In addition, he specifically denied having any hearing loss or ear trouble at that time in 1975.

[00:10:39] Speaker 04:
And then his treatment records from 2009 again describe him as denying having any hearing loss.

[00:10:46] Speaker 04:
So it may well be that in 1969, potentially even as a result of something he experienced in service, there was some modest amount of hearing loss.

[00:10:56] Speaker 04:
But after that, his treatment records show that that hearing loss abated, that his hearing improved.

[00:11:03] Speaker 04:
And he himself testified that there was no hearing loss or trouble.

[00:11:08] Speaker 04:
So given that set of facts, which we can't question,

[00:11:13] Speaker 04:
How can we deny or review, I don't see what the legal question is.

[00:11:19] Speaker 01:
The legal question here Your Honor is how 1110 is to be properly interpreted

[00:11:24] Speaker 01:
and applied by both the agency and the Netflix.

[00:11:27] Speaker 04:
But you want me to throw out the Nexus requirement in a situation in which he had mild hearing loss in 1969, but all the evidence of record shows that by 1975 it didn't prove, and he no longer had it.

[00:11:37] Speaker 04:
And so now, when he's claiming in 2013 he's got hearing loss, I'm supposed to throw out the Nexus requirement and say that's no longer required?

[00:11:46] Speaker 01:
Well, Your Honor, I believe that that's what this court did in the panel decision in Spicer, that the interpretation made in Spicer

[00:11:54] Speaker 01:
based exclusively on the interpretation of 1110 says that there are no additional requirements, no additional qualifiers to a disability and that the proper focus is whether or not to determine a claim what the disability is post service.

[00:12:16] Speaker 01:
and disability post-service after two thousand and twelve when this claim was made was that he had a compensable disability but all of those disability resulting from personal injury resulting matters yes your honor and the resulting from here was the acoustic trauma nobody has to be the current disability i mean you're right even if you know let's say hypothetically

[00:12:43] Speaker 03:
that it's true.

[00:12:44] Speaker 03:
He had some sort of moderate hearing loss in 1969.

[00:12:48] Speaker 03:
But by 1975, he was fine.

[00:12:52] Speaker 03:
So in that circumstance, there is no disability at the time of the claim.

[00:12:58] Speaker 01:
And if he had made a claim in 1975, that would have been a reasonable basis, potentially.

[00:13:04] Speaker 01:
But that's not when he made his claim.

[00:13:06] Speaker 03:
I understand my problem with you is that this is going to tell you my concern.

[00:13:09] Speaker 03:
I'm not a doctor.

[00:13:11] Speaker 03:
So I'm supposed to assume now

[00:13:13] Speaker 03:
I don't even have a jurisdiction to do this.

[00:13:15] Speaker 03:
But you're suggesting that under the law, even though he had, he was fined by 1975, when he had that loss in 2013, that means that it was caused by the military service.

[00:13:26] Speaker 03:
And I'm supposed to say caused by in section 1110 is satisfied because back in 1969, it may have been.

[00:13:38] Speaker 01:
What I'm asking this court to do is to interpret 1110

[00:13:42] Speaker 01:
that the entitlement to compensation was established in 1969 and that when this veteran made his claim in 2012, he was entitled to compensation because in 2012, he had a current

[00:13:59] Speaker 01:
disability that was compensable.

[00:14:02] Speaker 03:
Now, just to be clear, Spicer does not address this factual issue, right?

[00:14:06] Speaker 01:
No, Your Honor.

[00:14:07] Speaker 01:
It's a legal issue.

[00:14:09] Speaker 01:
I know.

[00:14:10] Speaker 03:
Yeah.

[00:14:11] Speaker 01:
I'm sorry.

[00:14:12] Speaker 03:
It says what the standard is in section 110, but it doesn't talk about a facts scenario like this.

[00:14:17] Speaker 03:
It's not addressing a situation where somebody may have had a disability and then was later found to be, and they don't have that disability anymore.

[00:14:29] Speaker 01:
With all due respect, Your Honor, it doesn't discuss the intervening.

[00:14:34] Speaker 01:
And as this court decided in Spicer, what is relevant is, is there a disability when the claim is being filed?

[00:14:42] Speaker 01:
And in this case, there was.

[00:14:44] Speaker 03:
It has to be a disability that is caused by the service, right?

[00:14:47] Speaker 01:
And that causation was established in 1969.

[00:14:50] Speaker 04:
Mr. Carpenter, would you like to stop, save anything for rebuttal?

[00:14:54] Speaker 01:
I would, Your Honor.

[00:14:55] Speaker 04:
Thank you.

[00:14:58] Speaker 00:
May it please the court?

[00:15:01] Speaker 00:
Following up first off the discussion here with Mr. Carpenter, it's important to note there was no disability during active duty under 3.385.

[00:15:10] Speaker 00:
There was the injury, but for VA purposes under the regulation, there was no disability.

[00:15:16] Speaker 00:
There was fluctuating level of hearing, but it wasn't technically a disability at that point.

[00:15:20] Speaker 00:
And that's indicated by the board on appendix 122.

[00:15:25] Speaker 02:
Counsel, do we have jurisdiction

[00:15:28] Speaker 02:
of the case where the only error asserted, legal error relates to a statute not cited in the decision below?

[00:15:39] Speaker 00:
Your Honor, I do not believe this court has jurisdiction.

[00:15:44] Speaker 00:
According to Mr. Bryant, every VA disability compensation claim implicates the agency's interpretation of Section 110, either explicitly or implicitly, and that's wrong.

[00:15:55] Speaker 00:
The requirements to prevail in a claim for disability compensation at this point are clear.

[00:15:59] Speaker 00:
They don't require interpretation in every case, and in most cases they're just going to be a basic application of the fact of the law.

[00:16:06] Speaker 00:
And I think much of the argument is related to that.

[00:16:08] Speaker 00:
I think if there is a legal issue here that's been identified, it's the standard, the argument that there is no causation requirement under section 110.

[00:16:19] Speaker 02:
But 1110 was not cited below.

[00:16:21] Speaker 02:
So it wasn't interpreted below if it wasn't cited below, correct?

[00:16:28] Speaker 00:
Exactly, Your Honor.

[00:16:28] Speaker 00:
I think that's also a waiver issue.

[00:16:30] Speaker 00:
It wasn't cited below.

[00:16:31] Speaker 00:
It wasn't interpreted below.

[00:16:31] Speaker 00:
And if, in fact, Mr. Bryant wanted to argue below, there is no causation requirement, he certainly didn't need to wait to get that decision.

[00:16:39] Speaker 00:
That could have been raised below and addressed by the Veterans Court.

[00:16:47] Speaker 00:
Putting aside the issue of jurisdiction, as far back as Shedden and Continuous, Dye, Connolly, Gilbert and Holton, this court has required a showing of causation to demonstrate a disability claim under 1110.

[00:16:59] Speaker 00:
The court has been discussed, recently affirmed that causation requirement with respect to section 1110 in Spicer, explaining that the statutory phrase resulting from is a causation requirement.

[00:17:11] Speaker 00:
Mr. Bryant's argument that there is no causation requirement in section 10 runs

[00:17:16] Speaker 00:
headlong into this decades of precedent.

[00:17:21] Speaker 00:
And to the extent that Mr. Bryant is arguing for a presumption that just fits the facts of this case, in other words, just disregarding the nexus requirement, Congress has already created presumptions related to service connection requirements.

[00:17:35] Speaker 00:
So for example, section 11.

[00:17:37] Speaker 03:
I think his argument is that the nexus requirement was satisfied at a certain point.

[00:17:42] Speaker 03:
And then later on, even if it's not satisfied years, years

[00:17:47] Speaker 03:
years later, the board can't take that into account, or the agency can't take that into account, because it was satisfied in 1969.

[00:17:58] Speaker 03:
I think that's this argument.

[00:18:00] Speaker 03:
What was your response to that?

[00:18:02] Speaker 00:
If that's the argument, Your Honor, I would first just go back to the point that there was no present disability, so that argument fails on the first prong.

[00:18:10] Speaker 00:
I don't think it's even necessary to get to the next one.

[00:18:12] Speaker 03:
When you say present disability, it's because there was only a minimal amount of hearing

[00:18:16] Speaker 00:
Yes, because the VA has defined a disability for hearing loss purposes under 3.3 of 5.

[00:18:20] Speaker 00:
All right.

[00:18:22] Speaker 04:
And you mean there was no present disability, you mean there was no disability at his time of service, or do you mean there is currently no present disability?

[00:18:30] Speaker 00:
Currently, there is absolutely, there is bilateral hearing loss.

[00:18:32] Speaker 00:
Yes, I was referring to the hypothetical, yeah.

[00:18:35] Speaker 04:
It's not a hypothetical.

[00:18:36] Speaker 04:
I mean, you were talking about what's on page 122, right?

[00:18:39] Speaker 00:
Right, yeah.

[00:18:40] Speaker 00:
I'm sorry.

[00:18:41] Speaker 00:
I found this under the request from Judge Stone.

[00:18:44] Speaker 04:
So you're saying that

[00:18:46] Speaker 04:
He had mild hearing.

[00:18:48] Speaker 04:
Suppose that we don't have the 1975 or subsequent exams.

[00:18:52] Speaker 04:
Suppose the only thing we have is in 1969 after direct exposure to lots of noise or gunshots or something, he had mild hearing loss.

[00:19:03] Speaker 04:
Now let's fast forward to 2013 and he needs hearing aids.

[00:19:07] Speaker 04:
That mild hearing loss has gotten much worse.

[00:19:09] Speaker 04:
Are you saying that that would not be sufficient for 1110 to prove the required nexus that

[00:19:16] Speaker 04:
What additional things would you require him to establish in order to prove that his 2013 worsening is actually not caused by the in-service effects that showed some diminished hearing?

[00:19:32] Speaker 00:
So I think even looking at Hensley is a helpful case.

[00:19:36] Speaker 00:
In that case, there was a private letter from a physician that said this hearing loss is likely causally related to that in-service noise exposure.

[00:19:44] Speaker 00:
So that sort of evidence certainly would be helpful.

[00:19:46] Speaker 00:
In this case, we have a 2013 exam that came to the opposite conclusion.

[00:19:51] Speaker 03:
And here there's also evidence there was some sort of hearing trauma that occurred because of the service-connected tinnitus, right?

[00:20:00] Speaker 00:
Yes, Your Honor.

[00:20:01] Speaker 00:
And there could be any other myriad facts that could be developed in terms of the interviews with the service member after the facts and those sorts of facts that could establish the causation requirement even this many years later.

[00:20:12] Speaker 04:
So it wouldn't be enough in your view just on its face if he had hearing loss that was recognized upon exit from service and then worsening hearing loss in 2013 that required more intervention and possibly rose to the level of a disability at that point.

[00:20:31] Speaker 04:
That's not enough.

[00:20:32] Speaker 04:
You would still have to prove nexus in your view?

[00:20:36] Speaker 00:
Yes, Your Honor.

[00:20:36] Speaker 00:
There has to be some sort of causal link.

[00:20:38] Speaker 00:
Otherwise, I think that is a presumption that Congress is in a better position to make.

[00:20:42] Speaker 00:
For these reasons discussed today, as well as the reasons stated in our brief, we respectfully request the Court dismiss the appeal.

[00:20:50] Speaker 04:
Thank you.

[00:20:53] Speaker 01:
Please, the Court, I'd like to point out that in 1975, his testing of his hearing showed an increase in severity in, I'm sorry, I've got the wrong tab.

[00:21:11] Speaker 01:
There it is, 1975, which is in the appendix at page 39.

[00:21:16] Speaker 01:
But in our view, the problem is the misuse of the notion of current disability as something that must be current in service.

[00:21:32] Speaker 01:
The government's reliance upon the regulation about what constitutes a compensable rating

[00:21:39] Speaker 01:
that regulation pertains to compensation.

[00:21:42] Speaker 01:
That does not relate to entitlement to service-connected compensation.

[00:21:49] Speaker 01:
It's the rating that that regulation speaks to.

[00:21:52] Speaker 01:
The fact that it doesn't qualify for a rating does not mean there wasn't an injury.

[00:21:58] Speaker 01:
The government's position is simply untenable that somehow he needs evidence that it was related to service based upon an acoustic trauma that was the basis for the grant for service connection for tinnitus.

[00:22:12] Speaker 01:
These are both hearing loss conditions.

[00:22:15] Speaker 01:
And to suggest that there is additional requirement beyond the obvious evidence that existed in 1969 that a disability was present

[00:22:27] Speaker 01:
in 1969.

[00:22:28] Speaker 01:
In order to obtain compensation in 2012, simply results in an unreasonable and untenable interpretation of 1110.

[00:22:39] Speaker 01:
Is there further questions from the panel?

[00:22:41] Speaker 01:
I'd submit the matter.

[00:22:42] Speaker 04:
Thank you, Your Honor.

[00:22:44] Speaker 04:
I thank both counsels.

[00:22:45] Speaker 04:
This case is taken under submission.