[00:00:00] Speaker 01:
Uh, this morning, one submitted.

[00:00:02] Speaker 01:
Uh, the first case today is appeal number 22-1412, Malilou versus McDonough.

[00:00:11] Speaker 01:
Mr. Carpenter.

[00:00:13] Speaker 03:
Thank you, Your Honor.

[00:00:14] Speaker 03:
May I please the court?

[00:00:15] Speaker 03:
Kenneth Carpenter, appearing on behalf of Charles Malilou.

[00:00:18] Speaker 03:
an issue in this appeal is the scope of the outcome of terms of analysis that it was undertaken by the Board of Veterans Appeals and affirmed by... Just so I understand your briefing, I mean, you argued Bustos, you argued Cook, you argued Blanton, right?

[00:00:36] Speaker 01:
Oh, yes.

[00:00:37] Speaker 01:
Okay, so you are with all these cases about... Manifest for different outcome.

[00:00:41] Speaker 01:
Right, Q claims.

[00:00:43] Speaker 01:
And in all those cases, my understanding is we've interpreted 5109AQ to be a term of art that requires an error to be outcome determinative.

[00:00:56] Speaker 01:
Great.

[00:00:56] Speaker 01:
Are you disputing that today?

[00:00:58] Speaker 01:
No.

[00:00:59] Speaker ?:
Okay.

[00:00:59] Speaker 01:
It sounded like you were in the briefing, but now you're not.

[00:01:02] Speaker 01:
Well, I apologize.

[00:01:03] Speaker 01:
Let's find out what your deal is today.

[00:01:06] Speaker 01:
OK, what is it about?

[00:01:08] Speaker 03:
Well, let's try to put this in context first.

[00:01:11] Speaker 03:
This is a pro se claim of clear and unmistakable error in which the Board of Veterans Appeals in 2018.

[00:01:18] Speaker 01:
What is the legal error?

[00:01:20] Speaker 03:
The legal error found by the board in 2018.

[00:01:23] Speaker 01:
What is the legal error you are raising today?

[00:01:28] Speaker 03:
interpretation that we believe the Veterans Court relied upon of the controlling statute, which is 5109A, as it relates to the question of scope of the outcome determinative analysis made by the board.

[00:01:50] Speaker 04:
How is that different than what you argued in the Blanton case?

[00:01:55] Speaker 04:
Can you just explain to me how that's different?

[00:01:58] Speaker 03:
your argument today well it's different factually because in this case there was an actual finding of clear and unmistakable error made upon a different theory of error in other words the error found by the twenty eighteen board decision was that the nineteen sixty eight decision had made a undebatable error that mister uh... malahue had a uh...

[00:02:27] Speaker 03:
irritable vowel, excuse me, irritable duodenal bulb.

[00:02:33] Speaker 03:
And in fact, he did not have a pre-existing condition as found by the 2018 board.

[00:02:40] Speaker 03:
The board then made an analysis under the outcome determinative structure that was inclusive only of whether or not he could or could not have prevailed based upon the fact that his condition was not

[00:02:58] Speaker 03:
previously existed, which means that there was no adjudication by the agency of original jurisdiction of the matter on the merits of his entitlement to either direct or presumptive service connection.

[00:03:13] Speaker 03:
The original decision was made only on aggravation.

[00:03:17] Speaker 03:
There isn't any dispute amongst the parties that that was a clear and unmistakable error made in 1968.

[00:03:24] Speaker 03:
So the question is,

[00:03:26] Speaker 02:
did the evidence show or didn't it show a basis for revision or reversal the end of the day has conceded what happened in nineteen sixty eight was clear and unmistakable yes doesn't clear an unmistakable air included out from the turner aren't you confusing an air which was a factual or an application of a lot of actor here with clear and unmistakable

[00:03:57] Speaker 03:
I do not believe so, Your Honor.

[00:03:58] Speaker 02:
The distinction on the- How many said over and over again, and hasn't the Supreme Court said, that in George and Cook, that this- I know you don't agree with this, but- No, no.

[00:04:07] Speaker 03:
No, I agree with that, Your Honor.

[00:04:09] Speaker 02:
That Q is not just an error, it's an outcome de turno there.

[00:04:12] Speaker 03:
Right.

[00:04:13] Speaker 02:
And the question is- The VA has not conceded that there's an outcome de turno there here.

[00:04:17] Speaker 03:
have they no they have not right because i haven't considered that there's a clear and unmistakable error there's an error and with respect your honor that's the question that we're presenting under the interpretation of the statute

[00:04:29] Speaker 03:
The statute does not say manifest, or excuse me, that it must be manifest as an outcome.

[00:04:35] Speaker 03:
That's a function of the judicial interpretation.

[00:04:38] Speaker 02:
I mean, that argument has been overtaken by all this precedent that said the statute merely codified this long regulatory history.

[00:04:48] Speaker 02:
I went back and read George this morning.

[00:04:50] Speaker 02:
And it says exactly that.

[00:04:53] Speaker 02:
Clear and unmistakable error.

[00:04:54] Speaker 02:
I mean, you know this has always included outcome determinants.

[00:04:57] Speaker 03:
Yes, Your Honor.

[00:04:58] Speaker 03:
But the question is, how is outcome determinant to be considered when the finding of Q was based upon a determination that there was no pre-existing condition?

[00:05:08] Speaker 02:
Are you saying that outcome determinant hasn't ended something?

[00:05:10] Speaker 03:
That it must relate to the error, Your Honor.

[00:05:14] Speaker 03:
well the reason that the government agreed to a joint remand that vacated the twenty eighteen decision was to consider whether or not presumptive service connection would change or alter that outcome-determinative analysis and what was the finding on the remand and that wouldn't right what well they determined that it wouldn't but they did so by adjudicating the merits which we believe exceeds the scope of the outcome-determinative analysis

[00:05:44] Speaker 03:
The intention of the outcome determinative analysis is to look at the error.

[00:05:48] Speaker 01:
Because when I read your briefing, your briefing is so focused on trying to re-litigate what kind of error is required in order to be a clear and unmistakable error.

[00:06:01] Speaker 01:
If you kept on quoting, I don't know, 15 times a sentence from 5109A, if evidence establishes the error, the prior decision shall be reversed or revised.

[00:06:12] Speaker 01:
I took your argument over and over again to be essentially any kind of error is enough to be clear enough of a mistake or error.

[00:06:19] Speaker 01:
And that runs right into the teeth, as you know, Bustos and Cooks and Blanton.

[00:06:26] Speaker 01:
where we said over and over, clear and unmistakable error, as that term is used in 51 on 9A, is a particular term of art when it comes to cue claims.

[00:06:37] Speaker 01:
And it refers to outcome determinative errors, also known as manifestly different result or manifestly different outcome type of errors.

[00:06:45] Speaker 01:
That's what we said in Bustos.

[00:06:47] Speaker 01:
That's what we said in Cook.

[00:06:48] Speaker 01:
We said it to you again in Blanton.

[00:06:51] Speaker 01:
So when the statute

[00:06:53] Speaker 01:
later on says, if evidence establishes the error, then the decision shall be reversed.

[00:07:00] Speaker 01:
The error that the statute is referring to is in the prior sentence of clear and unmistakable error.

[00:07:07] Speaker 01:
So your statutory argument, which is what your briefs were devoted to, have no merit.

[00:07:14] Speaker 01:
And so I don't understand really why we're arguing anything any further this morning.

[00:07:20] Speaker 03:
I'm attempting to establish that in the facts of this case, there was a determination that there was an undebatable error made, which at least establishes the first component.

[00:07:33] Speaker 04:
Are you equating an undebatable error with outcome determinative?

[00:07:37] Speaker 03:
No, you're not.

[00:07:37] Speaker 03:
I'm simply saying that there was a determination made that there was an undebatable error made

[00:07:44] Speaker 03:
in the language of the statute.

[00:07:46] Speaker 02:
Why are you using the word undebatable?

[00:07:48] Speaker 02:
What work is that doing for you?

[00:07:49] Speaker 02:
I mean, there's either an error or there's not.

[00:07:53] Speaker 02:
It sounds like you're trying to establish this third class of errors, that there's this error, there's undebatable error, and there's not a mistake here.

[00:08:02] Speaker 02:
All I mean is the Veterans Court and the board have determined there was an error in the original decision.

[00:08:09] Speaker 03:
Right, Your Honor.

[00:08:09] Speaker 03:
And then once that happens, as I read the statute,

[00:08:14] Speaker 03:
you are required to reverse or revise.

[00:08:18] Speaker 03:
The question then becomes... That's just wrong.

[00:08:21] Speaker 02:
I mean that's just flat out wrong because the only reason you have to reverse or revise is if there's clear and unmistakable error.

[00:08:29] Speaker 02:
And the board here, affirmed by the Veterans Court, determined that there wasn't clear and unmistakable error and we can't review that factual determination.

[00:08:38] Speaker 03:
Then clearly the panel is not prepared to accept my

[00:08:43] Speaker 02:
briefing or my argument and i'm not going to waste your time i appreciate that i think even if we were receptive we are bound by all this case would which reads a clear and unmistakable error into that language that you're quoting us about reverse and revise but you don't have a clear and unmistakable error here, right?

[00:09:02] Speaker 02:
i believe there is yeah but you can't argue that to us you know you can't argue that to us because that's fact

[00:09:08] Speaker 01:
no you're not believe that's a question of the law that that as a question of a different conception legal conception of what clear and unmistakable error and i understand that we we rejected that uh... when you made that argument and boosters and and cook and i mean you're you're free to try to climb the mountain again and file another and bank petition for a year

[00:09:38] Speaker 03:
Unless there's further questions, I don't believe it's a value for me to continue.

[00:09:43] Speaker 01:
Is there anything from the government?

[00:09:48] Speaker 00:
Thank you, Your Honor.

[00:09:49] Speaker 00:
And may it please the court, I guess I'll be brief and just

[00:09:53] Speaker 00:
make one point, just to emphasize that the VA did not concede clear and unmistakable error.

[00:10:00] Speaker 00:
It acknowledged that there was an error, but with respect to Q, it has to be outcome-determinative, and as it's been recognized, that runs headlong into CUCPUSTOS.

[00:10:12] Speaker 00:
in this most recent Supreme Court case from George.

[00:10:16] Speaker 00:
So I'm happy to answer any questions.

[00:10:19] Speaker 00:
But if there's nothing further, we just ask that the court affirm the decision of the Veterans Court.

[00:10:27] Speaker 01:
Okay.

[00:10:27] Speaker 01:
Thank you.

[00:10:31] Speaker 01:
Nothing further?

[00:10:31] Speaker 01:
Okay.

[00:10:32] Speaker 01:
Thank you.

[00:10:32] Speaker 01:
The case is submitted.