[00:00:00] Speaker 03:
Next case is Norman Johnson versus the Secretary of Veterans Affairs, 2022-1198.

[00:00:09] Speaker 03:
Mr. Roberts, when you are ready.

[00:00:12] Speaker 00:
Good morning, Your Honors.

[00:00:12] Speaker 00:
May it please the Court?

[00:00:14] Speaker 00:
My name is Daniel Roberts.

[00:00:15] Speaker 00:
I represent Mr. Norman D. Johnson and his appeal here today.

[00:00:19] Speaker 00:
Flat feet, all life.

[00:00:20] Speaker 00:
We're here today primarily because of these four words.

[00:00:24] Speaker 00:
Four words written hastily during a medical examination for foot pain during Mr. Johnson's military service.

[00:00:31] Speaker 00:
The medical examiner and the courts below clung to these words as gospel to find clear and unmistakable evidence of a pre-existing medical condition.

[00:00:40] Speaker 02:
What statute or regulation did the Veterans Court interpret?

[00:00:44] Speaker 00:
They interpreted not only section 5103A, which was the duty to assist, but also sections 1153 and 1154.

[00:00:53] Speaker 00:
And these courts discarded competent evidence of pain, finding, to quote the CAVC below, no evidence of foot-related complaints and no evidence of any risk factors, such as forced marches and repelling exercises.

[00:01:06] Speaker 00:
Vacator and remand are thus required for these three reasons.

[00:01:09] Speaker 00:
First, the CAVC erred legally by ignoring Mr. Johnson's competent lay evidence of pain, documented both during service and years afterwards.

[00:01:19] Speaker 04:
How can you say it was ignored?

[00:01:20] Speaker 04:
Isn't it referenced by the board as well as the court of veterans claims?

[00:01:25] Speaker 00:
There are references to Mr. Johnson having pain, but those did not factor in at all to the decisions by CAVC or the board or the RO or the medical examiner.

[00:01:35] Speaker 04:
Why isn't that a question of weight given to the evidence or application of law to fact, both of which we would lack jurisdiction to review?

[00:01:43] Speaker 00:
So first, the medical examination did reference pain.

[00:01:47] Speaker 00:
But CAVC first noted that the physical examination of Mr. Johnson didn't note any arthritic changes, any posterior tibialis issues, anything like this, and also just noted that there was no medical evidence that Mr. Johnson had sought medical attention for his condition.

[00:02:10] Speaker 00:
And so all they looked to was,

[00:02:13] Speaker 00:
that Mr. Johnson participated in activities that could have led to aggravation of his condition.

[00:02:19] Speaker 00:
But the problem is they found that those were merely risk factors.

[00:02:23] Speaker 00:
They were not factors showing aggravation themselves.

[00:02:28] Speaker 03:
These were all facts, though, right?

[00:02:30] Speaker 00:
Those are factual considerations, but.

[00:02:33] Speaker 03:
So why do we have jurisdiction?

[00:02:35] Speaker 00:
Because by ignoring the lay evidence of pain here, CAVC erred.

[00:02:41] Speaker 00:
And so.

[00:02:42] Speaker 03:
Ignoring evidence?

[00:02:46] Speaker 03:
is not a question of law.

[00:02:48] Speaker 03:
As Judge Cunningham asked you, what is the interpretation of law that was erroneous here?

[00:02:56] Speaker 00:
Well, we can look to here the Buchanan case.

[00:03:00] Speaker 00:
And so the Buchanan case found in a case where lay evidence was present but was discarded by CAVC under section 1154A, there was

[00:03:13] Speaker 00:
illegal error in not considering that lay evidence.

[00:03:17] Speaker 00:
And so I would argue that this is an even easier case for remand than Buchanan.

[00:03:22] Speaker 00:
In that case, the veteran was relying on lay evidence post-dating service.

[00:03:27] Speaker 00:
And this was lay evidence of a psychiatric condition, which the board and the CAVC discounted because it was not accompanied by contemporaneous medical treatment records.

[00:03:36] Speaker 00:
This is Buchanan at 1336.

[00:03:37] Speaker 00:
That's the same as what we have here.

[00:03:40] Speaker 00:
CAVC and the board

[00:03:43] Speaker 00:
took Mr. Johnson's lay evidence.

[00:03:46] Speaker 03:
I don't see Duke Cannon in your brief.

[00:03:53] Speaker 03:
I don't want to throw you off your argument, but if that's the case you're relying on, it should have been in your brief.

[00:04:04] Speaker 03:
I see it's in your reply brief, but that's no substitute for an initial citation.

[00:04:11] Speaker 00:
Well, here we also relied.

[00:04:13] Speaker 00:
It is cited in the opening brief at page 10.

[00:04:17] Speaker 00:
I have my apologies.

[00:04:18] Speaker 03:
Oh, maybe it's not on the index, then.

[00:04:20] Speaker 00:
Yeah.

[00:04:20] Speaker 00:
It's just not on the table.

[00:04:23] Speaker 03:
Table of contents.

[00:04:25] Speaker 00:
So page 10, we quote Buchanan at 1335 that the veterans court endorsement of the board's legal interpretation of the relevant statutory and regulatory provisions pertaining to the types of evidence which may support a claim for benefits.

[00:04:41] Speaker 00:
And so the court held that the finding of discounting evidence because it was not accompanied by contemporaneous medical treatment records violated at least section 1154A as a matter of law.

[00:04:55] Speaker 00:
It's the same as the case here.

[00:04:56] Speaker 00:
Mr. Johnson's lay evidence includes reports of pain in 1981, 1983 during his service, during his Gulf War service in 1990 and 1991.

[00:05:07] Speaker 00:
Mr. Johnson's pain by his account continued to grow steadily worse throughout his service and after his hurried discharge in 1991 with no separation examination.

[00:05:17] Speaker 00:
After over a decade of service, Mr. Johnson suffered periods of homelessness and unemployment where he did not seek medical attention for his condition.

[00:05:26] Speaker 00:
And in 2010, when Mr. Johnson first got internet access, he learned that he may be entitled to benefits and did his research and filed his claim in 2012, noting his long history of foot pain since 1981.

[00:05:37] Speaker 00:
I'd also like to reference the Jen Dro case, which is particularly on point.

[00:05:43] Speaker 00:
In that case, the issue was whether it was legal error for the board and CAVC to ignore lay evidence of a veteran self-diagnosing a shoulder dislocation.

[00:05:53] Speaker 00:
This court held that it was error to disregard that evidence, reversing and remanding for proper consideration of the lay evidence.

[00:06:00] Speaker 04:
I know it's hard to prove a negative, but when I was reviewing what the Veterans Court and the board did, it didn't seem like they were ignoring the lay evidence.

[00:06:11] Speaker 04:
They just weren't giving it the weight that you think they should have.

[00:06:15] Speaker 04:
What do I look to to credit your argument that they ignored it?

[00:06:19] Speaker 00:
Well, Your Honors, I would look to the CAVC's opinion, Appendix 11.

[00:06:28] Speaker 00:
And the CAVC's opinion was based on medical evidence that was and remains uncontroverted.

[00:06:36] Speaker 00:
So they said that the medical evidence that Mr. Johnson did not have the structural etiologies present to show pes planus was uncontroverted.

[00:06:45] Speaker 00:
And by saying that it was uncontroverted, one of the diagnostic tools for pes planus is pain, pain in the feet.

[00:06:52] Speaker 00:
I don't know about your honors, but when I think about foot pain,

[00:06:56] Speaker 00:
I don't think about structural etiologies and any deformation of a posterior tibialis.

[00:07:02] Speaker 04:
It is true that there's no contrary medical evidence in the record, right?

[00:07:08] Speaker 04:
There's no other doctor, there's no evaluation that shows those structural changes or anything to that effect, right?

[00:07:14] Speaker 00:
Correct.

[00:07:14] Speaker 00:
There's nothing in the record besides Mr. Buchanan's statements that he has been in pain since 1981.

[00:07:19] Speaker 00:
And those under Buchanan and under the relevant statute, section 1154A, those have to be considered and taken into account.

[00:07:30] Speaker 04:
But aren't those referenced in the board opinion?

[00:07:34] Speaker 00:
They are referenced in the board opinion, and the board is

[00:07:38] Speaker 00:
assumed and presumed to have taken into account all of the relevant evidence.

[00:07:42] Speaker 00:
But that does not mean that they accounted for the lay evidence in saying that the medical evidence was uncontroverted, and that because Mr. Johnson failed to seek medical attention for his condition, that that disqualifies him from service-connected benefits.

[00:07:58] Speaker 02:
But by referencing them, they're not ignoring them, right?

[00:08:01] Speaker 02:
Don't you agree with that statement?

[00:08:03] Speaker 00:
I agree with that statement as a general matter, but where

[00:08:08] Speaker 00:
a condition of pain is referenced, but is not considered as lay evidence of a disability of aggravation.

[00:08:19] Speaker 00:
I'd like to make it clear here that Mr. Johnson was not required to put forth any evidence of any disability, and it was the... Are you differentiating between referencing something and considering something?

[00:08:31] Speaker 02:
Are you saying that there's some delta there?

[00:08:34] Speaker 00:
What I'm saying is that the board and the CAVC mentioned pain, but then in their opinion, the reason for their opinion was that Mr. Johnson was put through forced marches but showed no aggravation of his condition.

[00:08:47] Speaker 00:
And so the aggravation of his condition is shown through the pain that he experienced.

[00:08:53] Speaker 00:
And I'd like to turn to a second legal error.

[00:08:57] Speaker 00:
just very quickly, which is the error in interpreting the presumption of soundness under section 1111.

[00:09:04] Speaker 00:
And then I'd like to reserve the rest of my time for rebuttal.

[00:09:09] Speaker 00:
So CBC aired in its interpretation of the presumption of soundness under section 1111.

[00:09:13] Speaker 00:
And under this section, each enlisted person is assumed to be taken in sound and healthy condition when they enter the military.

[00:09:21] Speaker 00:
There's no record of Mr. Johnson being diagnosed with pes planus upon enlistment

[00:09:25] Speaker 00:
into the military or beforehand.

[00:09:28] Speaker 00:
Rather, this diagnosis came a year into Mr. Johnson's service in 1981, when he voiced unheeded complaints about his worsening.

[00:09:35] Speaker 04:
How have we said that an admission from the veteran himself can overcome that presumption of soundness?

[00:09:40] Speaker 00:
That's correct.

[00:09:41] Speaker 00:
Under Horn, that is the law, and under Wagner.

[00:09:44] Speaker 00:
But there has to be an undebatable admission.

[00:09:46] Speaker 04:
And here, isn't that what the board determined?

[00:09:51] Speaker 00:
So there is an admission of flat feet, but there is no evidence... Flat feet all life as you... Flat feet all life.

[00:09:58] Speaker 00:
But that doesn't show any morbidity or any disability associated with flat feet.

[00:10:03] Speaker 00:
And when you're taken into the military, especially in 1980,

[00:10:07] Speaker 00:
flat feet was a disqualifying diagnosis.

[00:10:09] Speaker 00:
And so because there is no record of that, the CAVC erred in interpreting section 1111 against Mr. Johnson.

[00:10:18] Speaker 00:
I'd like to reserve the rest of my time for a couple.

[00:10:20] Speaker 00:
Thank you.

[00:10:20] Speaker 03:
Will you save it for you, Ms.

[00:10:22] Speaker 03:
Coney?

[00:10:24] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:10:26] Speaker 01:
The Court should dismiss the appeal in this case because this Court lacks jurisdiction to consider Mr. Johnson's arguments, which asks the Court to reweigh evidence and apply law to facts.

[00:10:37] Speaker 01:
During the argument this morning, I believe that Mr. Johnson's counsel referenced a couple of statutes that claim to be misinterpreted, one being 5103A, which is the duty to assist.

[00:10:49] Speaker 01:
The duty to assist in this case requires that the court provide, or subsection D requires that the VA provide an examination if it determines that it's necessary.

[00:11:01] Speaker 01:
That is the duty to assist.

[00:11:03] Speaker 01:
It's an evidence gathering statute.

[00:11:06] Speaker 01:
And so in this case, the VA did, in fact, provide Mr. Johnson with a medical examination in 2012 and thus satisfied their duty to assist.

[00:11:16] Speaker 01:
Mr. Johnson has not explained.

[00:11:19] Speaker 02:
So do you disagree with that statement that those in particular is being interpreted?

[00:11:24] Speaker 02:
Do you disagree with that statement that opposing counsel made?

[00:11:27] Speaker 01:
Yes, I disagree with that.

[00:11:28] Speaker 01:
Because Mr. Johnson hasn't made an argument as to how that statute was misinterpreted.

[00:11:33] Speaker 01:
And the VA clearly met its duty to assist here by providing Mr. Johnson with an examination.

[00:11:41] Speaker 01:
As far as Mr. Johnson's reference to Section 1154B, that section does not apply in this case, which is a statute that applies for veterans who are injured in combat.

[00:11:57] Speaker 01:
And both the statute and the accompanying regulation, 38 CFR 3.304, indicate that when there is an injury that's been incurred during combat, there may be different presumptions that apply.

[00:12:10] Speaker 01:
But here in this case, although Mr. Johnson did serve during a war period, he has never alleged that the injury was a result of his time in combat.

[00:12:19] Speaker 01:
In fact, all of Mr. Johnson's statements and medical evidence go towards primarily the initial part of his service, the basic training, the running and marching and stuff.

[00:12:30] Speaker 01:
There has never been any allegation that the injury was caused by combat.

[00:12:35] Speaker 01:
So we would argue that that section simply doesn't apply here and has not been misinterpreted.

[00:12:41] Speaker 04:
Did he set a third statute at the start of his argument?

[00:12:48] Speaker 01:
1153, I believe, is the presumption of aggravation.

[00:12:51] Speaker 01:
So that goes to the question that was addressed at the end of the argument, whether the presumption of soundness or aggravation has been misapplied here or misinterpreted here.

[00:13:01] Speaker 01:
We would argue that the argument is that it's been misapplied.

[00:13:08] Speaker 01:
The board in this case did cite the correct statute, applied the statute that requires that if there's no injury noted at the entrance exam, that the VA must show clear and unmistakable evidence of both pre-existence and lack of aggravation.

[00:13:28] Speaker 01:
And the board both cited that statute and applied it, finding that there is, in fact, clear and unmistakable error both of pre-existence and aggravation in this case.

[00:13:40] Speaker 01:
Mr. Johnson's arguments about whether or how much the lay evidence was considered really go towards whether the medical examination was inadequate, which is this court has held, is a question of fact that is outside of the court's jurisdiction here.

[00:13:58] Speaker 04:
Do you think there is some distinction between referencing, considering,

[00:14:04] Speaker 04:
evaluating lay opinion?

[00:14:06] Speaker 04:
Are those different things?

[00:14:08] Speaker 04:
And was the board required to do one as opposed to the other?

[00:14:11] Speaker 01:
Your Honor, I do not think that there is a difference between mentioning and considering.

[00:14:17] Speaker 01:
The board is referencing, yes.

[00:14:23] Speaker 01:
In this case, the board clearly referenced the Veterans Lay Statement in July of 2013, which was post-stated in medical examination.

[00:14:31] Speaker 01:
Does that mean the board considered it, in your opinion?

[00:14:35] Speaker 01:
Yes, Your Honor.

[00:14:37] Speaker 01:
As counsel, I think, admitted, the board is presumed to have considered all of the evidence that's in the record.

[00:14:44] Speaker 01:
And especially given that they wrote it into the decision, I think that that is sufficient evidence to show that they, in fact, considered the late evidence.

[00:14:53] Speaker 01:
And the Veterans Court went even farther than the board in explaining that.

[00:14:59] Speaker 01:
There is no inconsistency between the finding of lack of aggravation and the veterans' laced demons, because the veterans' laced demons all go towards the risk factors for aggravation.

[00:15:10] Speaker 01:
He has stated multiple times that he had to run a lot of miles and stand a lot and wear combat boots and wear a pack.

[00:15:18] Speaker 01:
And all of those things, while true, don't necessarily lead to

[00:15:22] Speaker 01:
And the medical examiner in this case in 2012 specifically found that Mr. Johnson's physical condition was not consistent with a finding of aggravation, that he did not have calluses secondary to structural.

[00:15:38] Speaker 01:
I forget exactly the medical language, but they didn't find structural changes.

[00:15:43] Speaker 01:
They didn't find arthritic.

[00:15:45] Speaker 01:
The VA examiner didn't find the type of physical condition that would be consistent

[00:15:51] Speaker 01:
with the aggravation that Mr. Johnson claims to have experienced.

[00:15:57] Speaker 04:
The Veterans Court seems to have thought of the lay evidence as a risk factor and not

[00:16:06] Speaker 04:
actual evidence of aggravation.

[00:16:08] Speaker 04:
I guess I have two questions.

[00:16:11] Speaker 04:
Is that a question of law that would be within our jurisdiction, whether it's just a risk factor, whether it's aggravation?

[00:16:17] Speaker 04:
And either way, was the court wrong about that?

[00:16:22] Speaker 01:
Your Honor, I think it would go to a question of fact.

[00:16:25] Speaker 01:
I think it does go to the weight that the evidence should be provided and should be credited.

[00:16:35] Speaker 01:
Again, the statements here go towards explaining what Mr. Johnson experienced while in service and admitted that he had pain, which no one has disputed, that he did experience foot pain both in service and after service.

[00:16:53] Speaker 01:
But those statements do not establish aggravation in the legal sense.

[00:17:00] Speaker 01:
The aggravation in the legal sense must be permanent as opposed to temporary.

[00:17:06] Speaker 01:
And those statements simply aren't consistent with aggravation nor with the VA examiner's findings of no calluses and no dysfunction of the posterior tibialis and no significant arthritic changes.

[00:17:23] Speaker 01:
And so no, I think the VA, the Veterans Court here was correct in determining that Mr. Johnson's late statements that go towards the risk factors for aggravation do not

[00:17:36] Speaker 01:
somehow undermined or called into question the VA examiner's findings, which the board used to find that there was clear, non-mistakable evidence of a lack of aggravation.

[00:17:50] Speaker 03:
Anything further, counsel?

[00:17:51] Speaker 01:
Just to briefly address the presumption of sound issue, the medical reports in this case reported that Mr. Johnson had admitted that he had flat feet all his life.

[00:18:06] Speaker 01:
We don't know what was said during the examination.

[00:18:10] Speaker 01:
All we know is the results of what the examiner wrote down in the 1981 report.

[00:18:16] Speaker 01:
But as this court has found in Harris v. West and as the Veterans Court found in Horne v. Shinseki, a veteran's admission of a condition, especially a condition that doesn't need a clinical diagnosis, such as this court discussed in D'Andro,

[00:18:37] Speaker 01:
that is sufficient to rebut the presumption of soundness, especially whereas here there is, as the veteran is profound, this is unrefuted.

[00:18:47] Speaker 01:
Still, to this day, he hasn't stated that he didn't have flat feel as life.

[00:18:53] Speaker 01:
There is no evidence in the record contradicting the finding here.

[00:19:03] Speaker 01:
his admission and the lack of any other contrary evidence, we would submit that the board and the Veterans Court were correct to find clear and unmistakable evidence of pre-existence.

[00:19:16] Speaker 03:
And what is our disposition in your view?

[00:19:19] Speaker 01:
I'm sorry?

[00:19:20] Speaker 03:
What should our disposition be in your view?

[00:19:23] Speaker 01:
We would ask this court to dismiss the appeal for a lack of jurisdiction or, in the alternative, to affirm the Veterans Court.

[00:19:30] Speaker 01:
Unless Your Honor has further questions, we would rest on our briefs.

[00:19:33] Speaker 03:
Thank you.

[00:19:34] Speaker 03:
Thank you.

[00:19:36] Speaker 03:
Mr. Roberts has four and a half minutes if you need it.

[00:19:40] Speaker 00:
Thank you, Your Honor.

[00:19:41] Speaker 00:
So I'd first like to address Judge Stark's comment about risk factors versus actual aggravation and whether that is a mistake of law by the CABC.

[00:19:50] Speaker 00:
In opinions like Saunders, which we addressed in our reply brief, that pain alone can be sufficient to show aggravation, to show a disability.

[00:20:01] Speaker 00:
Further under Wagner and its interpretation of section 1153, it is the government's burden to prove no increase in disability.

[00:20:09] Speaker 00:
Because the administrative and judicial bodies below could only meet that burden by ignoring Mr. Johnson's lay evidence of pain and relying on a lack of medical records, they've erred in interpreting the relevant statutes and burdens in this case.

[00:20:21] Speaker 04:
That last statement sounded like fact.

[00:20:25] Speaker 04:
The only way they could reach the conclusion was

[00:20:27] Speaker 04:
to not give weight to the pain.

[00:20:30] Speaker 04:
Isn't that just a fact argument?

[00:20:32] Speaker 00:
It's not, because disregarding confident lay evidence of pain, particularly where there is no finding that those lay statements were either incredible or whether there was any impugning of the testimony.

[00:20:45] Speaker 00:
So it comes back to your argument that they disregarded entirely the pain.

[00:20:51] Speaker 00:
That's right.

[00:20:54] Speaker 00:
I'd also like to talk about Horne and Harris.

[00:20:58] Speaker 00:
So Harris was a case where there was a pre-existing condition of poor night vision as a diagnosis of retinitis pigmentosa eight years before service.

[00:21:10] Speaker 00:
And that's distinguishable here, because Mr. Johnson's admission was, at worst, only about flat feet.

[00:21:16] Speaker 00:
It was not about any morbidity or any kind of disability related to flat feet.

[00:21:21] Speaker 00:
The claimant in Harris also disputed the sufficiency of the evidence and wanted the Federal Circuit to reweigh the evidence.

[00:21:30] Speaker 00:
It was not about the failure to consider competent lay evidence, as in Buchanan and Gendro, which control here and which the Secretary does not dispute are the current state of the law with respect to lay evidence.

[00:21:47] Speaker 00:
Finally, I'd like to argue that the CAVC's opinion violates the pro-veteran canon of this court, which requires that all interpretive doubt be found and resolved in the veteran's favor.

[00:21:58] Speaker 00:
Here, CAVC committed numerous errors in applying the presumptions of soundness and aggravation, and in not recognizing the VA's failure in its duty to assist Mr. Johnson.

[00:22:08] Speaker 00:
Now, to address the Section 5103A issue,

[00:22:14] Speaker 00:
The duty to assist requires the consideration and the...

[00:22:19] Speaker 00:
the consideration of competent lay evidence where it's present.

[00:22:23] Speaker 00:
There was no such consideration here.

[00:22:25] Speaker 00:
That lay evidence was discarded as a risk factor.

[00:22:29] Speaker 00:
The ECABC only considered the forced marches and the repelling rather than the actual evidence of pain that Mr. Johnson put forth.

[00:22:38] Speaker 04:
On 1154B, you don't suggest you have evidence that your client was injured during combat, do you?

[00:22:44] Speaker 00:
No.

[00:22:46] Speaker 00:
We never, in argument, we never considered 1154B.

[00:22:50] Speaker 00:
That doesn't control here.

[00:22:52] Speaker 00:
It's just indicative of another statute, like 1154A, which is interpreted in Buchanan, and 5103A, which require consideration of lay evidence.

[00:23:01] Speaker 00:
But Buchanan was an 1154A case, which does not require military combat service, which 1154B does.

[00:23:15] Speaker 03:
Anything further, counsel?

[00:23:17] Speaker 00:
I would just like to request that the court vacate CABC's decision below and remand with instructions to have the board consider the competent lay evidence put forth by Mr. Johnson of his pain over the last 42 years because he has suffered enough.

[00:23:34] Speaker 00:
Thank you, Your Honors.

[00:23:36] Speaker 03:
Thank you, counsel.