[00:00:00] Speaker 04:
The next case is Galladay versus McDonough, number 22-1619.

[00:00:04] Speaker 04:
Mr. Rabin, are you ready?

[00:00:09] Speaker 05:
Good morning.

[00:00:10] Speaker 05:
May it please the court.

[00:00:11] Speaker 05:
Sean Rabin for Tony Galladay, veteran.

[00:00:13] Speaker 05:
Mr. Galladay filed a claim for compensation for a fractured right ankle and a right knee disability.

[00:00:20] Speaker 05:
He filed his claim with the Department of Veterans Affairs seeking compensation.

[00:00:25] Speaker 05:
At the time that he filed his claim, it was unknown that the Department of Veterans Affairs and the government could not locate and would not be able to locate his complete service medical records.

[00:00:37] Speaker 05:
They had the duty to have his service medical records in order to confirm his injuries in service.

[00:00:43] Speaker 05:
They breached that duty because they could no longer find them.

[00:00:46] Speaker 05:
And as a result, he could not prove that he suffered a fracture to his right ankle and injury to his right knee in service.

[00:00:56] Speaker 05:
The issue before the court is whether or not under 1154A and 5107B, the Department of Veterans Affairs can rely upon a VA medical opinion which relies upon the absence of service medical records for negative substantive evidence.

[00:01:14] Speaker 01:
Well, that medical opinion didn't rely solely on the absence of medical records, correct?

[00:01:20] Speaker 05:
That's correct, Your Honor, solely.

[00:01:21] Speaker 05:
But even if it relied in part on the absence of service medical records, it's still relying upon the absence of those records for a negative inference, saying that if they aren't there, then that's just more support.

[00:01:33] Speaker 05:
If you add more support, that just tanks the entire medical opinion.

[00:01:36] Speaker 05:
And that's the purpose.

[00:01:38] Speaker 05:
And the argument is, very similar to AZ and AY, that that's not pertinent medical evidence.

[00:01:43] Speaker 05:
It can't be pertinent medical evidence because the absence of service records is never permanent medical evidence.

[00:01:49] Speaker 05:
So even if it was like, oh, and by the way, because he doesn't have service medical records to show that he had a right ankle fracture in service or right knee injury in service, that further supports my opinion that the current disabilities are not related to service.

[00:02:05] Speaker 01:
But didn't the board and the Veterans Court assume that there was an injury in service?

[00:02:12] Speaker 05:
Yes, they did.

[00:02:13] Speaker 05:
But assuming an injury is very different than assuming or finding that a person fractured their ankle.

[00:02:19] Speaker 05:
If you fracture your ankle in service, after service, you still have that right ankle fracture.

[00:02:25] Speaker 01:
When you seek service... If the medical evidence was to the effect, and correct me if I'm wrong, to the effect that whatever

[00:02:32] Speaker 01:
injury might have occurred, any service was resolved.

[00:02:37] Speaker 01:
And therefore, the current injury, there's no nexus there.

[00:02:43] Speaker 05:
The medical opinions relied upon by the board and by the court, affirming the court, were to the fact that any injuries in service resolved prior to separation of service, or they would have been noted on a separation examination.

[00:02:58] Speaker 05:
The problem with that is that once you fracture an ankle or fracture any bone or fracture your spine, you still have that fracture after service, even after you separate.

[00:03:08] Speaker 05:
So even though the fracture is healed, you still have a fracture.

[00:03:11] Speaker 05:
You can get service connection for a healed fracture, because as you grow older, you can still get free VA care for that fracture, free medicine, and also get compensation as it gets worse.

[00:03:24] Speaker 05:
In this case, when you consider that a condition like a fracture has healed, that's true at the time of separation, but there's still a fracture.

[00:03:34] Speaker 05:
And even the secretary would concede on questioning that a fracture in service is still a fracture after service, and you're entitled to compensation for that.

[00:03:43] Speaker 04:
If you can show that it was connected to a current disability.

[00:03:47] Speaker 05:
But the current disability is a healed fracture, residuals of a healed fracture.

[00:03:54] Speaker 05:
So if you have a healed fracture, you still have the same disability.

[00:03:59] Speaker 05:
So for example, for the right ankle fracture, if he claimed that he fractured his ankle, and as he said, he had x-rays from service.

[00:04:12] Speaker 05:
And he also had a cast.

[00:04:14] Speaker 05:
If that's there, that's evidence of a fracture of his right ankle.

[00:04:18] Speaker 05:
So for the examiner at that current point, post-service, for the VA examiner to say, well, yes, he injured his ankle.

[00:04:24] Speaker 05:
He had a fracture in service.

[00:04:26] Speaker 05:
And he has a healed fracture after service.

[00:04:29] Speaker 05:
That condition would still be service-connected.

[00:04:31] Speaker 05:
The question of how much disability rating he would get would depend on the circumstances.

[00:04:36] Speaker 05:
And if it got worse.

[00:04:38] Speaker 05:
But he would be entitled to both compensation, medical care, as well as any type of drugs or medicine or pharmaceuticals to treat that.

[00:04:48] Speaker 01:
But what does the absence of his medical records during service have to do with the questions you just described?

[00:04:57] Speaker 05:
When the VA examiner relied upon the absence of service medical records to support his opinion,

[00:05:06] Speaker 05:
that there's no current link to current disability because there was no disability in service that continued after service.

[00:05:15] Speaker 01:
For example, looking closely at the- That's the question, whether there was any disability that might have been incurred in service that might have been resolved at the time of separation is now causing the current medical problem.

[00:05:34] Speaker 05:
That is the question about whether or not any current disability is related to a disability in service.

[00:05:39] Speaker 05:
So the fractured ankle, if there's a fracture in service, the person will have a fracture after service and they should be compensated for it.

[00:05:48] Speaker 01:
It seems to me that what you're arguing for is some sort of a per se rule that you can never ever even allude

[00:05:58] Speaker 01:
to the absence of medical records during service when assessing the entitlement to some compensation.

[00:06:10] Speaker 05:
That's too extreme.

[00:06:12] Speaker 05:
You can say there are no medical records.

[00:06:14] Speaker 05:
The medical records have been lost and are unavailable.

[00:06:17] Speaker 05:
And in the absence of that, we concede that the veteran suffered an injury in service.

[00:06:23] Speaker 04:
Can you go the other way, though?

[00:06:25] Speaker 04:
What if you have testimony from three different doctors that have examined him, look at all the evidence that's available, and say there's no way this occurred during service?

[00:06:36] Speaker 04:
And then they go on and say, and there is no evidence in the records that this occurred in service, even though they're relying on the testimony, the positive testimony, of all the treating doctors.

[00:06:51] Speaker 04:
Let's say, let me make the hypothetical even more extreme so we're not going to quibble about it.

[00:06:59] Speaker 04:
Every single piece of evidence

[00:07:01] Speaker 04:
suggests that the the injury did not occur in service every piece of positive evidence and There has been some service there has been some lost service records and the board says and there's no evidence in the service records that this is Is that a legal violation?

[00:07:20] Speaker 05:
I would say, unfortunately, you're referring to the very far extreme.

[00:07:24] Speaker 05:
I think you can probably not.

[00:07:25] Speaker 04:
But that's what we do when we ask hypotheticals when we try to establish legal rules.

[00:07:29] Speaker 04:
Because I want to know what your legal rule is, and whether we're really arguing about a legal issue, or whether we're arguing about application of a legal rule to the facts, which you know we don't have jurisdiction over.

[00:07:41] Speaker 05:
I understand the extreme part of the argument in your hypothetical.

[00:07:45] Speaker 05:
I wouldn't say that a rule has to be fashioned to be that extreme.

[00:07:49] Speaker 05:
In the event that service medical records are lost, their absence cannot be relied upon as a basis either wholly or in part.

[00:07:59] Speaker 05:
as a rationale to support a medical opinion.

[00:08:02] Speaker 05:
But they can be noted.

[00:08:04] Speaker 04:
So they can be noted, though.

[00:08:06] Speaker 05:
They could be noted, but they can't be relied on.

[00:08:07] Speaker 04:
So here's the problem you have when you say that.

[00:08:09] Speaker 04:
And I appreciate you giving me that candid answer.

[00:08:13] Speaker 04:
Doesn't that run us into the fact of whether the border, the Veterans Court here, relied on the absence as a negative inference, or whether they just noted?

[00:08:24] Speaker 04:
And isn't that application of law the fact?

[00:08:26] Speaker 05:
In this particular circumstance, there is no law currently, there is no rule of law that follows like AZ and AY or Buchanan that says that the reliance upon the absence of service medical records.

[00:08:41] Speaker 04:
No, no, I get it.

[00:08:41] Speaker 04:
But AZ and AY are, I mean, they're helpful to you, but they don't resolve this case.

[00:08:45] Speaker 04:
Because there, it was very clear that the board or whoever is the ultimate decision maker

[00:08:53] Speaker 04:
I don't remember the exact facts, relied on the absence of a report to show that there was no stressor, right?

[00:09:00] Speaker 04:
Is that the right thing?

[00:09:00] Speaker 04:
And so there was no dispute over, oh, well, there's other evidence showing that this didn't happen.

[00:09:07] Speaker 04:
They relied on that specific absence of a report during service to show

[00:09:13] Speaker 04:
that there's no stressor.

[00:09:16] Speaker 04:
I think even you would concede that they've relied on some positive evidence from doctor testimony and stuff to show no and current.

[00:09:23] Speaker 04:
You just say that it was wrong of them to go on and say, and the service records don't.

[00:09:28] Speaker 04:
This is not a case where the only evidence is a negative inference, right?

[00:09:33] Speaker 05:
No, this is not the case where they solely rely upon the absence of service medical workers to say that he didn't injure, he didn't fracture his right ankle in service.

[00:09:42] Speaker 04:
The examiner... That would be wrong.

[00:09:44] Speaker 04:
That would be an incestuous injury.

[00:09:45] Speaker 05:
Sure, sure.

[00:09:45] Speaker 05:
If they said that, that would be an easy case.

[00:09:47] Speaker 05:
I'm sure we probably wouldn't be here today.

[00:09:49] Speaker 05:
But it's a more difficult and nuanced case to say that

[00:09:53] Speaker 05:
that instead of just noting the absence of service medical records, which is part of medical history, an examiner can't use that as a basis for relying upon to support their opinion.

[00:10:06] Speaker 05:
So an examiner can't say, and by the way, it's in support of my, and this is, and I go.

[00:10:12] Speaker 04:
But, I mean, you made that argument, right?

[00:10:14] Speaker 04:
And the Veterans Court said that's not the basis for their opinion.

[00:10:17] Speaker 05:
Yes, and that's why it's wrong.

[00:10:19] Speaker 05:
But that's application of law to fact.

[00:10:23] Speaker 05:
No, it's the rule of law.

[00:10:25] Speaker 05:
They didn't agree.

[00:10:26] Speaker 05:
They said that this wasn't raised by the argument, or this wasn't raised in this case.

[00:10:33] Speaker 05:
And I believe this clearly is raised in this case.

[00:10:35] Speaker 05:
It's not necessarily application of rule of law.

[00:10:38] Speaker 04:
Can you show me in the Veterans Court opinion where they articulated an incorrect legal interpretation on this point?

[00:10:46] Speaker 05:
Page six of the appendix at section D, right ankle disability.

[00:10:53] Speaker 05:
We count one two three four five six seven lines down in the center It says yet the examiner's opinion did not rely on that silence alone But if the examiner's opinion relied on that silence in any way it was silenced in the separation exam It's not silent as in records are missing It's silence in the sense in my the way.

[00:11:16] Speaker 05:
I read this is silence and in the absence of the service records and

[00:11:20] Speaker 02:
I think it's saying that the previous sentence, the examiner also cited a pellet separation exam, which is in the record, right?

[00:11:29] Speaker 02:
Right, separation exam is in the record.

[00:11:30] Speaker 02:
Yes, but the sentence before that is.

[00:11:31] Speaker 02:
That showed no history or complaints of a right ankle injury.

[00:11:37] Speaker 02:
Isn't that the silence that the Veterans Court is referring to, the silence in the separation exam?

[00:11:43] Speaker 05:
No, Your Honor, I disagree.

[00:11:44] Speaker 05:
I'd say the silence before, respectfully disagree.

[00:11:47] Speaker 05:
It's the sentence before.

[00:11:49] Speaker 05:
The examiner stated that the appellant's service treatment records did not document a right ankle injury.

[00:11:54] Speaker 05:
And the examiner further noted that the body statement appellant submitted were silent on a right ankle injury.

[00:11:59] Speaker 05:
examiner also cited also cited counts separation examination showed no history or complaints of right ankle injury yet the examiner's opinion did not rely on that.

[00:12:07] Speaker 02:
I have to think it's referring to silence in things that actually exist, documents that actually exist, but what about Judge Hughes' point?

[00:12:14] Speaker 02:
Do we have jurisdiction to answer that question as to what the board is referring to there?

[00:12:19] Speaker 05:
It's a rule of law just as an AZ and AY and it's a very simple rule of law and the absence of service medical records

[00:12:27] Speaker 05:
VA cannot rely upon that absence, or VA examiners cannot rely upon that absence.

[00:12:33] Speaker 05:
to support an opinion in any way.

[00:12:36] Speaker 01:
You're arguing for a per se rule.

[00:12:39] Speaker 01:
But it's a person.

[00:12:40] Speaker 01:
You said a moment ago that it's OK to note it.

[00:12:44] Speaker 05:
Yes, it's OK to note it.

[00:12:45] Speaker 05:
But they can't rely upon that.

[00:12:49] Speaker 05:
It's a nuance of noting versus relying upon.

[00:12:52] Speaker 05:
I believe I've gone into my rebuttal time.

[00:12:54] Speaker 03:
Sure.

[00:12:54] Speaker 03:
We ask a lot of questions on this story.

[00:12:57] Speaker 03:
But yeah, let's hear from them.

[00:12:59] Speaker 00:
Thank you, Your Honor.

[00:12:59] Speaker 00:
May it please the Court.

[00:13:01] Speaker 00:
I think part of the issue here is just some general misunderstandings as to what the Board and the Veterans Court was doing.

[00:13:07] Speaker 00:
There was a decision made back in 2017 where the medical examiner and then the Board did rely upon the absence of service treatment records in order to support their finding that Mr. Galladay did not suffer any injury in service.

[00:13:22] Speaker 00:
That was reversed by the Veterans Court.

[00:13:23] Speaker 00:
It was remanded to the Board and the Board

[00:13:26] Speaker 00:
got another medical examination, an opinion from the medical examiner.

[00:13:29] Speaker 00:
And as a result of that process, they corrected that error that Mr. Galladay is asserting now.

[00:13:34] Speaker 00:
They did not rely in any way on the absence of records to support any finding.

[00:13:38] Speaker 00:
In fact, they said, we note, as has been discussed, we note that there was an absence of records.

[00:13:43] Speaker 00:
But we do have some records.

[00:13:44] Speaker 00:
We have his separation examination.

[00:13:46] Speaker 00:
We have some hospital treatment records from when he was in service just before separation, when theoretically this injury would have already occurred.

[00:13:53] Speaker 00:
And we can look in those places and see that there was no indication in those records of any ongoing issues or concerns, no pain, no injuries reported, no continuing instability of the joints, nothing like that.

[00:14:06] Speaker 00:
And so the decision reached by the board was to say, in the records we do have available, there is no indication that whatever injuries he may have suffered, which we assume were credible and we assume that all the testimony and lay evidence he provided was accurate and reliable.

[00:14:22] Speaker 00:
Whatever injuries he did suffer at the time he was in service did not appear to be continuous or chronic or in any way continuing to impact his health at the time of his separation.

[00:14:32] Speaker 00:
And that is the absence that is being referred to.

[00:14:36] Speaker 00:
And so I agree with Judge Stark's interpretation of the Veterans Court's decision.

[00:14:41] Speaker 00:
I would also point back to a similar reference made in the board decision that is subject to Helan appendix 28.

[00:14:48] Speaker 00:
where they make a similar statement.

[00:14:50] Speaker 00:
At the top of the page, it is clear that he, referring to the medical examiner in the revised 2019 medical examination report, did not base his conclusions solely on the absence of treatment evidence that he took into account in the lay statements and offered conclusions about the likely etiology of the current disabilities.

[00:15:07] Speaker 00:
That statement comes at the end of five or six pages of a very, very thorough summary of all of the affirmative evidence that was in the record, which begins all the way back on Appendix 23, noting that although most service treatment records are unavailable, records from a December 1982 hospitalization for an unrelated matter and the veteran separation physical examination are in the record.

[00:15:31] Speaker 04:
You agree that they can't.

[00:15:33] Speaker 04:
rely on a negative inference from records to support their decision, right?

[00:15:39] Speaker 00:
We do not disagree in the way that the Veterans Court or the board handled this case, and that's the decision they reached.

[00:15:43] Speaker 04:
So if the Veterans Court had said, well, here's all this positive evidence of why he didn't suffer an injury, but we're not going to reach that because there's no evidence in any service records to show an injury, so they rely solely on a lack of evidence of service injury, that would be a problem.

[00:16:02] Speaker 00:
I don't disagree with that, Your Honor.

[00:16:04] Speaker 00:
It's tough to say that in the abstract because we don't have that decision.

[00:16:07] Speaker 00:
The Veterans Court, in our view, reached the right decision.

[00:16:10] Speaker 00:
So I don't want to say... That would bring it much closer to A.Z.E.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A.A

[00:16:21] Speaker 00:
some affirmative evidence, probative, relevant.

[00:16:24] Speaker 00:
But the court, nonetheless, or the board, and then the Veterans Court affirmed, saying that, well, but we have this absence of any record.

[00:16:30] Speaker 00:
And so we're going to weigh that as a countervailing piece of evidence against the affirmative evidence.

[00:16:36] Speaker 00:
Here, none of that weighing occurred.

[00:16:38] Speaker 00:
There was simply a no.

[00:16:39] Speaker 01:
I think there's clearly a distinction between evidence, as in AZ, where some alleged injury was not reported.

[00:16:52] Speaker 01:
and the lack of evidence that, in this case, where the service records are completely missing.

[00:16:59] Speaker 01:
So on the one hand, there is some evidentiary value to the fact that there are medical records that do not show an injury during a particular time period in question, as compared to the records are missing, where you don't know what they say, positive or negative.

[00:17:21] Speaker 01:
I see.

[00:17:21] Speaker 01:
It seems to me that's a distinction that gets blurred in some of these discussions.

[00:17:27] Speaker 00:
Yes, it is, Your Honor.

[00:17:28] Speaker 00:
And I think in this case, the Veterans Court appropriately made that distinction.

[00:17:32] Speaker 00:
As I acknowledged earlier in the proceedings here, there was a decision made by the board that the absence of records at all was potentially relevant to evaluating whether the veterans suffered an injury.

[00:17:44] Speaker 00:
The Veterans Court reversed, and the board appropriately reconsidered and reversed its finding on that point.

[00:17:50] Speaker 00:
and said we will assume that he did suffer injury because we do have his own lay statements, we have buddy statements, we have corroborating evidence from family and friends suggesting that he suffered injuries in service.

[00:18:00] Speaker 00:
And so relying on that weighed against, as the board noted, essentially nothing as a counter-vailing fact.

[00:18:06] Speaker 00:
We will make the finding that he is established by preponderance of the evidence, he did suffer these injuries in service.

[00:18:11] Speaker 00:
But there's still the nexus question to consider.

[00:18:14] Speaker 00:
even though he has an injury, that doesn't necessarily mean that his current disabilities are medically related to that injury.

[00:18:20] Speaker 00:
And the board went out of its way to note that you cannot establish a medical nexus through lay testimony, particularly in a complicated set of joint injuries like these.

[00:18:29] Speaker 00:
You do need some medical evidence establishing the nexus that the current pain, the ultimate knee replacement that he had, was in fact related to an injury he suffered in service.

[00:18:38] Speaker 04:
And the other thing I'll point out... So what about Mr. Raven's point that

[00:18:43] Speaker 04:
if you accept that he suffered an ankle injury, that he, I take it your response to me, this is not what he's seeking here.

[00:18:51] Speaker 04:
He's not just seeking a service connection for an ankle fracture, right?

[00:18:56] Speaker 04:
So that's one point where I think the board did accept that he had an ankle fracture.

[00:19:00] Speaker 00:
That's a factual distinction that I think is incorrect.

[00:19:03] Speaker 00:
They didn't accept that he had a fracture.

[00:19:05] Speaker 00:
They accepted he had an injury.

[00:19:07] Speaker 00:
But they went out of their way to note that the medical examinations that were conducted post-service beginning in 2015 reviewed x-rays, current x-rays that were taken.

[00:19:18] Speaker 00:
And those x-rays showed nothing that indicated a prior fracture.

[00:19:22] Speaker 00:
So even if you have a fracture, no matter how many years ago, even in childhood,

[00:19:26] Speaker 00:
it's still going to show up in some way on a current X, right?

[00:19:28] Speaker 00:
There's going to be some residual imagery that will show some injury and fracture that occurred in the past.

[00:19:34] Speaker 00:
The X-rays that were taken didn't show that.

[00:19:37] Speaker 02:
Why is that not a problem for you?

[00:19:41] Speaker 02:
I had thought coming in here that the board accepted and credited Mr. Galladay

[00:19:49] Speaker 02:
for having the injury that he alleged he had suffered in service.

[00:19:55] Speaker 02:
I didn't understand there was a distinction between is it just an injury or is it a fracture.

[00:19:59] Speaker 02:
I thought that whole first part of the three prong thing he has to show was just established in his

[00:20:06] Speaker 02:
favor because we don't have the records.

[00:20:09] Speaker 02:
So we have to just assume essentially that he did suffer precisely the injury that he says he did during the service.

[00:20:15] Speaker 02:
You're now saying no, that the board really didn't go that far.

[00:20:18] Speaker 02:
And doesn't that mean the board somehow is relying on an absence of records?

[00:20:23] Speaker 00:
No, it's not, Your Honor, because it's relying on the affirmative medical evidence that shows no fracture.

[00:20:29] Speaker 00:
And I think part of the issue, too, is that Mr. Goladay was not necessarily internally consistent over the years of his reporting as to what precise injury he did suffer while he was in service.

[00:20:39] Speaker 00:
Most recently, he's claimed it was a fracture, but earlier he focused more on the knee injury and a knee sprain or some sort of ligament tear.

[00:20:46] Speaker 00:
But in this case, the board went out of its way to say, we're assuming that he suffered knee and ankle injuries.

[00:20:53] Speaker 00:
You know, we're not questioning that.

[00:20:54] Speaker 00:
He has provided competent lay evidence to establish he suffered those injuries.

[00:20:58] Speaker 00:
The nature of those injuries, to the extent they can be determined after the facts, the board pointed out that he had current x-rays showing no historical injury.

[00:21:08] Speaker 00:
So that's, again, not omission evidence.

[00:21:10] Speaker 00:
That is affirmative evidence.

[00:21:11] Speaker 00:
If you have an x-ray, if any of us have an x-ray taken today, they will show every single fracture you have ever suffered over your life.

[00:21:17] Speaker 00:
That's just the way our bones heal.

[00:21:19] Speaker 00:
And so the board specifically said,

[00:21:22] Speaker 00:
there is no evidence in the record to show that he had a fracture in the past.

[00:21:28] Speaker 00:
So we're not going to credit that portion of his testimony.

[00:21:31] Speaker 00:
I do want to be fair and acknowledge that there was a prior medical examination report in 2008 where there was a medical examiner who did offer an opinion that Mr. Golovay did suffer a fraction.

[00:21:40] Speaker 00:
The board addressed that in its decision and noted that it appeared from the examination report in 2008

[00:21:46] Speaker 00:
that the medical examiner was not actually looking at any current or historical X-rays themselves, that the examiner was relying upon Mr. Goladay's self-report that he suffered a fracture in the past, and that Mr. Goladay reported he had X-rays showing a fracture.

[00:22:00] Speaker 00:
But the 2015 examination very clearly showed a current X-ray taken.

[00:22:05] Speaker 00:
And so the board found that that was substantially more persuasive and relevant as evidence.

[00:22:09] Speaker 00:
And the other point I would note here, because I do think it's just relevant to the holistic determination in this case,

[00:22:15] Speaker 00:
One of the things that the Veterans Court has acknowledged, the board acknowledged here, is that if there are missing treatment records from service that VA itself or the military has not retained, that there is a heightened duty to assist the veteran.

[00:22:28] Speaker 00:
There's a heightened obligation on the part of VA to help the veteran develop the record and find alternative sources of information to attempt to corroborate the claims.

[00:22:37] Speaker 00:
And that was done here.

[00:22:38] Speaker 00:
The problem is that what happened here is in many ways what disproved his claim.

[00:22:42] Speaker 00:
Mr. Golade multiple times suggested that he had sought treatment shortly after his discharge at Cook County Hospital for these injuries and that they would confirm that he was in fact suffering an ongoing and chronic knee and ankle condition after discharge.

[00:22:58] Speaker 00:
And so VA was the party that went out and sought this treatment records from Cook County Hospital for an extended period throughout almost the entire 1980s.

[00:23:05] Speaker 00:
And they received relevant records.

[00:23:07] Speaker 00:
They received his full treatment record from Cook County Hospital.

[00:23:09] Speaker 00:
What it showed was that he, in fact, suffered the injury he claimed four years after discharge in 1987.

[00:23:14] Speaker 00:
When he was admitted to the hospital, he stated that the injury had occurred just a few days before.

[00:23:19] Speaker 00:
And then his subsequent VA treatment records seemed to all be downstream of that fairly substantial knee injury that he suffered in 1987, four years after he was discharged.

[00:23:28] Speaker 00:
So VA went out of its way here to do everything it could in an attempt to corroborate and support Mr. Golly's claim that his injury in service was connected to his current condition.

[00:23:38] Speaker 00:
Unfortunately, what they found was that the records that he claimed existed demonstrated fairly conclusively that his injury was not related to his service.

[00:23:46] Speaker 00:
It was a post-service injury, and that's what caused his current neonatal conditions.

[00:23:50] Speaker 00:
Unless there are any further questions, we'll ask that the court affirm or reverse.

[00:23:55] Speaker 00:
Oh, I'm sorry.

[00:23:56] Speaker 00:
Excuse me.

[00:23:56] Speaker 00:
Affirm or dismiss.

[00:23:58] Speaker 00:
Thank you.

[00:24:01] Speaker 05:
Three minutes.

[00:24:02] Speaker 05:
Page 227 of the appendix.

[00:24:05] Speaker 05:
Page 227 of the appendix is a document.

[00:24:09] Speaker 05:
It is an examination conducted on September 15, 2008.

[00:24:12] Speaker 05:
On the bottom of that page is a section marked diagnoses.

[00:24:19] Speaker 05:
Number two says, healed right ankle fracture.

[00:24:25] Speaker 05:
X-rays show, X-ray shows a small degenerative spur on the inferior tip of the medial malleosis, malleus.

[00:24:36] Speaker 05:
This study is otherwise unremarkable.

[00:24:43] Speaker 02:
Does the board address that?

[00:24:44] Speaker 05:
The board addresses this and says that the examiner's rationale was lacking.

[00:24:51] Speaker 05:
for his opinion.

[00:24:52] Speaker 05:
And later, VA asked that this opinion be withdrawn by the examiner.

[00:24:56] Speaker 05:
And the examiner provided a new opinion because the service medical records did not show a fracture in service.

[00:25:05] Speaker 05:
In fact, VA demanded that the examiner write a new opinion.

[00:25:09] Speaker 05:
And that's in the record as well.

[00:25:11] Speaker 05:
Mr. Galladay claims that he fractured his right ankle in service.

[00:25:15] Speaker 05:
The absence of service medical records is not pertinent evidence.

[00:25:19] Speaker 05:
This medical record by the doctor on 2019 shows that he read the x-rays and diagnosed a fracture of the right ankle.

[00:25:28] Speaker 05:
Fractures, as the secretary said, don't disappear.

[00:25:32] Speaker 05:
You have a fracture, they heal, and they stay with you for life.

[00:25:36] Speaker 05:
And they show up on x-rays later on in life.

[00:25:38] Speaker 04:
When you have the absence of service... Isn't there other medical evidence that says there is no fracture?

[00:25:44] Speaker 05:
That is correct.

[00:25:45] Speaker 05:
That means by the same examiner who provided the tainted opinions.

[00:25:49] Speaker 04:
Well, that you didn't argue to us.

[00:25:52] Speaker 04:
I didn't.

[00:25:53] Speaker 04:
I understand whether there was some improper pressure or something that would result in a violation of law that we could address isn't in the briefs.

[00:26:01] Speaker 04:
You're arguing now that there's two different

[00:26:04] Speaker 04:
pieces of evidence, one says he has a fracture, one says he doesn't.

[00:26:09] Speaker 04:
We can't touch that, can we?

[00:26:10] Speaker 05:
No, I wanted to come up in rebuttal to address what the secretary said about fractures.

[00:26:15] Speaker 04:
I mean, I don't think the secretary said that there's, in fact, I think the secretary, the government acknowledged that there is a medical examination report saying that.

[00:26:26] Speaker 04:
The problem for you is that ultimately the board and the court didn't rely on this report, they relied on other reports.

[00:26:33] Speaker 05:
I understand that.

[00:26:34] Speaker 05:
But the problem is that Dr. D'Agostini's reports are tainted by the absence of his – his – the absence of service medical records taint his report.

[00:26:43] Speaker 05:
And because he can't see a fracture, they're going to taint the – it taints the entire report because it's an inaccurate factual predicate.

[00:26:51] Speaker 04:
Okay.

[00:26:52] Speaker 05:
We have your answer.

[00:26:53] Speaker 05:
Thank you, Your Honor.