[00:00:00] Speaker 00:
Good morning, Your Honors, and may it please the Court, Jeff Lew for Appellant, John Miranda.

[00:00:08] Speaker 00:
I'd like to reserve four minutes for rebuttal.

[00:00:10] Speaker 00:
This case is the latest in what this Court has characterized as a string of aggressive, prejudicial error analyses by the Veterans Court.

[00:00:18] Speaker 00:
There are two reasons to reverse.

[00:00:20] Speaker 00:
First, under the guise of harmless error, the Veterans Court impermissibly substituted its own rationale for the boards in violation of the Channery Doctrine.

[00:00:30] Speaker 00:
On three consecutive appeals, the board failed to fulfill the statutory promise Congress made to combat veterans like Mr. Miranda in 38 USC Section 1154B, which provides a three-step framework that considerably lightens the burden combat veterans face in seeking benefits.

[00:00:47] Speaker 03:
Isn't this basically a fact case, whether a head injury occurred during service?

[00:00:54] Speaker 00:
No, Your Honor.

[00:00:55] Speaker 00:
So we're not asking the court to do a straight-up prejudicial error analysis.

[00:00:59] Speaker 00:
We're asking the court to decide whether chainery applies.

[00:01:02] Speaker 00:
And there's an error exception to the chainery doctrine?

[00:01:04] Speaker 04:
Well, I'm a little confused.

[00:01:05] Speaker 04:
When they're assessing, the CBC has been given congressional authority to determine if there's a prejudicial error, correct?

[00:01:16] Speaker 00:
Yes, Your Honor.

[00:01:17] Speaker 04:
So when they're assessing whether there's a prejudicial error, it necessitates looking beyond just the nature of the error to whether the error otherwise impacts what would be a correct outcome.

[00:01:28] Speaker 04:
I'm not going to say something so bold as generally doesn't apply to these kinds of cases.

[00:01:35] Speaker 04:
However, it seems to me that the very notion of prejudicial error, if the lower tribunal had considered the other thing that we're talking about, you would need to find prejudicial error.

[00:01:46] Speaker 04:
So I'm a little concerned about the way in which these two doctrines engage with each other.

[00:01:51] Speaker 04:
And I'm kind of concerned that you're

[00:01:54] Speaker 04:
view of Chenery would make it almost impossible to ever conclude anything is a prejudicial error.

[00:01:59] Speaker 04:
Not a prejudicial error, sorry.

[00:02:01] Speaker 00:
I understand that concern, Chief Judge Moore, but I don't think it's real in this case.

[00:02:05] Speaker 00:
So let me give you an example.

[00:02:06] Speaker 04:
But I'm not just worried about this case, right?

[00:02:08] Speaker 04:
You've made a broad legal statement about Chenery and the impropriety of abusing the board's rationale.

[00:02:16] Speaker 04:
So do you have some limiting principles, maybe?

[00:02:18] Speaker 00:
Yes.

[00:02:19] Speaker 00:
The limiting principle is

[00:02:21] Speaker 00:
The Veterans Court can substitute a rationale when the record unquestionably reveals no prejudice.

[00:02:26] Speaker 00:
That's tablock.

[00:02:28] Speaker 00:
And as the Supreme Court said in Wyman Gordon, when there is not the slightest uncertainty that the result would have been the same.

[00:02:34] Speaker 00:
I'll give you an example in a Section 1154B case, a very common pattern in Veterans Court cases.

[00:02:39] Speaker 00:
So in order to establish well-grounded claim for benefits, the veteran has to prove, one, a current disability.

[00:02:49] Speaker 00:
two, in-service injury, and three, a nexus between the disability and the injury.

[00:02:55] Speaker 00:
1154B goes to the proof of in-service injury, but it doesn't go to disability or nexus.

[00:03:02] Speaker 00:
So you can imagine a case where the board finds there's no current disability, but then fails to apply section 1154B at step two.

[00:03:10] Speaker 00:
In that case, there's clearly no effect 1154B could have had

[00:03:16] Speaker 00:
because 1154B doesn't help the veteran establish current disability.

[00:03:19] Speaker 00:
And that wouldn't violate chainery, because that would be a ground on which the board relied.

[00:03:24] Speaker 00:
And in fact, if you look at veteran's court cases, that is by far the most common fact pattern of harmless error reversal.

[00:03:29] Speaker 00:
And the principle we're asking the court to apply today on chainery would not touch those cases at all.

[00:03:34] Speaker 02:
Help me here.

[00:03:35] Speaker 02:
Just look at the board's decision.

[00:03:38] Speaker 02:
What's the matter, is a legal matter, with the board's decision?

[00:03:43] Speaker 00:
The board fails to apply section 1154B.

[00:03:46] Speaker 00:
How so?

[00:03:48] Speaker 00:
Section 1154B provides a three-step framework that the board has to apply.

[00:03:52] Speaker 00:
At step one, it has to consider all of the veteran's evidence standing alone.

[00:03:57] Speaker 02:
They found that his testimony about the head injury was not credible, right?

[00:04:06] Speaker 02:
Uh, how does that, uh, our cases seem to suggest that in the first step there under COLA, determining whether he has satisfactory evidence, that there's a credibility determination.

[00:04:21] Speaker 02:
And the board seemed to make that credibility determination.

[00:04:24] Speaker 02:
What's wrong with that?

[00:04:25] Speaker 02:
Well, the board didn't report defined.

[00:04:27] Speaker 02:
I understand that.

[00:04:28] Speaker 00:
I'm asking you what's wrong with what, uh, what the board did.

[00:04:32] Speaker 00:
Well, the board purported to find Mr. Miranda credible at step one.

[00:04:36] Speaker 00:
It purported to say that the presumption of credibility established at steps one and two was rebutted by clear and convincing evidence.

[00:04:44] Speaker 00:
But you can read the board's decision all day long and not see one iota of heightened deference owed as a result of the presumption.

[00:04:52] Speaker 02:
But wait, at step one, it's not clear and convincing evidence.

[00:04:56] Speaker 02:
It's just preponderance as to whether

[00:04:59] Speaker 02:
He's provided satisfactory evidence.

[00:05:01] Speaker 02:
And as I read the board decision, they're saying, no, he didn't provide satisfactory evidence because his testimony is not credible.

[00:05:09] Speaker 02:
What's the error in that?

[00:05:11] Speaker 02:
I mean, it may be that the Veterans Court said there wasn't a legal error, but if we determined there was no legal error, we don't even need to reach this question of harmless error, do we?

[00:05:22] Speaker 00:
Well, the board didn't say they was finding Mr. Miranda not credible at step one.

[00:05:26] Speaker 00:
In fact, the board says the opposite.

[00:05:28] Speaker 00:
So I don't think the board's decision can be read that way, Your Honor.

[00:05:31] Speaker 00:
The board says he's a due satisfactory lay evidence at step one in applying the section 154B framework.

[00:05:37] Speaker 00:
And the Veterans Court says the same thing.

[00:05:39] Speaker 00:
The board found Mr. Miranda credible at step one.

[00:05:42] Speaker 02:
The problem is... Where does the board say that he was credible at step one?

[00:05:46] Speaker 00:
Well, it says he's a due satisfactory lay evidence, Your Honor.

[00:05:49] Speaker 00:
It's at, I believe this is at appendix 40?

[00:05:56] Speaker 00:
Yes.

[00:05:58] Speaker 00:
So the board is purporting to proceed to step three of the analysis.

[00:06:03] Speaker 00:
And if it's doing that, it necessarily found that he had a due step.

[00:06:08] Speaker 02:
So there's no actual finding that he's credible at step one.

[00:06:12] Speaker 00:
I don't think the board says he's credible at step one in those exact words.

[00:06:16] Speaker 00:
But the board says we're going to proceed to step three.

[00:06:21] Speaker 00:
And there's not clear and convincing evidence to rebut the presumption of credibility.

[00:06:24] Speaker 00:
that would be generated by Act Steps 1 and Step 2.

[00:06:28] Speaker 00:
That's exactly how the Veterans Court understood the board, Your Honor.

[00:06:33] Speaker 02:
It seems to me so simple that the board found his testimony not credible under our cases that

[00:06:43] Speaker 02:
means it's not satisfactory evidence end of inquiry.

[00:06:46] Speaker 02:
You don't need to go to the other steps.

[00:06:47] Speaker 00:
Let me, let me add another wrinkle to this at step one.

[00:06:51] Speaker 00:
If the board had done a proper step one analysis, it can only consider the evidence in the, in the veteran's favor standing alone.

[00:06:58] Speaker 00:
And then at step two, it asks whether that evidence is consistent with the terms of his service.

[00:07:02] Speaker 00:
Only at step three, and this is Collette versus Brown, Jensen versus Brown, this course made clear, only at step three, this evidence against the veteran's claim come in.

[00:07:11] Speaker 00:
And that's precisely for the purpose.

[00:07:13] Speaker 02:
They didn't use the other evidence.

[00:07:18] Speaker 02:
They relied on his own statements to find that it was incredible because they were inconsistent with each other.

[00:07:27] Speaker 00:
I don't think that's right, Your Honor, because the key point is that the board has to look at the evidence in the veteran's favor.

[00:07:35] Speaker 00:
And it's looking at this record, the October 2006 post-appointment questionnaire, an incomplete service record in an effort to undermine his credibility.

[00:07:44] Speaker 00:
That's at step three.

[00:07:45] Speaker 02:
It's not an incomplete service record.

[00:07:47] Speaker 02:
He just said he had no injury in the service record.

[00:07:50] Speaker 02:
There's nothing in the statute that prevents them from relying on that, right?

[00:07:54] Speaker 00:
Well, I think that the reason why the record is incomplete is because the line you're talking about in section two, where he marks no next to head injury, that has to be understood in context in light of the incompleteness in section one of that record, where he marks nothing next to whether he experienced a fall injury.

[00:08:12] Speaker 00:
Section two of the questionnaire then asks whether he experienced a head injury as a result of the injuries noted in section one.

[00:08:18] Speaker 02:
It asks that he suffer a head injury in service, head no.

[00:08:23] Speaker 00:
No, Your Honor, Section 2 has to be read in light of Section 1 of that record, and Section 1 is incomplete.

[00:08:29] Speaker 00:
So we don't think the Board's, Your Honor, I don't think the Board's analysis rests on a credibility finding at Step 1.

[00:08:35] Speaker 00:
That's not what the Board purported to do, and certainly not how the Veterans Support understood the Board to be conducting its analysis.

[00:08:41] Speaker 00:
The Board proceeded up to Step 3 and said, we think

[00:08:44] Speaker 00:
the presumption of credibility generated steps one and step two are rebutted.

[00:08:48] Speaker 00:
But the core legal error is that there's no evidence in the entire board decision that it gave Mr. Miranda the benefit of that presumption that would have been generated after proceeding through steps one and steps two.

[00:08:59] Speaker 00:
And under the limiting principle I gave to Judge Moore, the standard is not the slightest uncertainty.

[00:09:06] Speaker 00:
If the board had applied those steps, there's certainly at least some doubt about whether the board could have come out differently.

[00:09:12] Speaker 00:
The board's analysis is throw it all in the hopper and see whether the VA is right or whether Mr. Miranda is right.

[00:09:19] Speaker 00:
That's not what section 1154B provides.

[00:09:22] Speaker 00:
That's at step three.

[00:09:23] Speaker 00:
And so given the benefit of that presumption, which this court said in Reeves versus Shunseki, makes it far easier for the veteran to prove in-service injury.

[00:09:31] Speaker 00:
We think there's at least a slight uncertainty about the outcome of the case had the board followed the proper procedural steps.

[00:09:38] Speaker 00:
I think that's true for a second reason as well, which is that

[00:09:41] Speaker 00:
The evidence adduced, all of the evidence, in one place, considered permissibly in one place in step one, necessarily colors the court's analysis at step three.

[00:09:51] Speaker 00:
A stronger evidentiary showing could have led the board to reassess the veteran's credibility at step one.

[00:09:56] Speaker 00:
It could have led the board to find other facts, given the structure that section 1154B imposes on the board's reasoning and the procedure the board has to follow in reasoning its way to a conclusion.

[00:10:06] Speaker 00:
We think those are two clear ways in which 1154B could have influenced the outcome of the case.

[00:10:14] Speaker 00:
Now, to return to my conversation with Judge Moore, the government says we don't have a limiting principle.

[00:10:19] Speaker 00:
But it's the government's view that doesn't have a limiting principle.

[00:10:22] Speaker 00:
On their view, what the board could have done here, it could have

[00:10:25] Speaker 00:
in the same opinion, it could have recited all the facts and then just said, service connection denied, period.

[00:10:31] Speaker 00:
No legal analysis, no reference to section 1154b.

[00:10:35] Speaker 00:
On their view, the Veterans Court could then say, affirmed, because we don't see any likelihood of a different outcome in this case.

[00:10:42] Speaker 00:
That can't be the law.

[00:10:43] Speaker 00:
Chainery would be a dead letter in Veterans Court cases if that were allowed.

[00:10:47] Speaker 00:
And they haven't given you any limiting principle.

[00:10:49] Speaker 00:
We're the only one who's provided this one with a limiting principle.

[00:10:52] Speaker 00:
We think that's not the slightest uncertainty standard.

[00:10:55] Speaker 00:
In addition to the failure to apply the three steps of section 154B, I think the board, the Veterans Court also impermissibly found new facts that influenced the court's analysis.

[00:11:07] Speaker 00:
The key one I'll point to is a causal finding about the basis for Mr. Miranda's cognitive symptoms.

[00:11:14] Speaker 00:
You can compare appendix 14 to appendix 35.

[00:11:17] Speaker 00:
At appendix 14, the Veterans Court says,

[00:11:21] Speaker 00:
The 2007 treatment records show that his cognitive symptoms were, quote, due to anxiety and depression, not a head injury.

[00:11:33] Speaker 00:
At appendix 35, by contrast, the board analyzes that exact same record.

[00:11:38] Speaker 00:
And the board says, he's suffering symptoms like anxiety and depression.

[00:11:43] Speaker 00:
But the providers found that those symptoms were consistent with TBI and a head injury.

[00:11:49] Speaker 00:
Those are two diametrically opposed findings.

[00:11:52] Speaker 00:
And that causal finding was one of the key bases on which the Veterans Court reversed.

[00:11:57] Speaker 00:
Remember, what the Veterans Court says is the board discounted the 2007 and 2008 treatment notes in Mr. Miranda's favor because they were based solely on the veteran's own testimony.

[00:12:07] Speaker 00:
The Veterans Court says, no, the board can't do that.

[00:12:10] Speaker 00:
And then it goes into the records and looks at the records itself.

[00:12:14] Speaker 00:
The Veterans Court makes a new factual finding based on that record.

[00:12:17] Speaker 00:
It says,

[00:12:19] Speaker 00:
His symptoms are caused by anxiety and depression, not head injury.

[00:12:23] Speaker 00:
That's a new factual finding under this court's decision in Tadlock.

[00:12:27] Speaker 00:
That's not allowed.

[00:12:29] Speaker 00:
I'd like to reserve the balance of my time for rebuttal.

[00:12:31] Speaker 04:
Okay.

[00:12:31] Speaker 04:
Thank you, Mr. Koo.

[00:12:34] Speaker 01:
Ms.

[00:12:34] Speaker 01:
Faye.

[00:12:35] Speaker 01:
May it please the court?

[00:12:37] Speaker 01:
This court should either dismiss or affirm the Veterans Court decision.

[00:12:40] Speaker 01:
At bottom, this is not a case about records, and the Veterans Court clearly did not engage in de novo fact-finding or substitute its judgment for that of the agency.

[00:12:49] Speaker 01:
So all that we have left is Ms.

[00:12:50] Speaker 01:
Miranda's disagreement with the Veterans Court's prejudicial error analysis.

[00:12:55] Speaker 01:
And a finding on that point would be beyond this court's jurisdiction.

[00:12:59] Speaker 01:
I'd like to just turn very quickly to the conversation that Judge Dyck was having with counsel.

[00:13:05] Speaker 01:
The Veterans Court did find that the board made an error in its legal analysis regarding 1154, but found that the error was harmless.

[00:13:14] Speaker 01:
Admittedly, we did not challenge that directly before this court, but to the extent that this court does find that the board didn't make a legal error because the board determined Mr. Miranda's statements to not constitute credible lay evidence, then certainly it does not need to revisit the Veterans Court's prejudicial error analysis at all.

[00:13:35] Speaker 01:
Now, of course, the appellant asserts that he is not asking the court to make a determination regarding actual prejudice.

[00:13:41] Speaker 01:
But I think some of the statements that counsel made and some of the statements in their brief belie that claim.

[00:13:47] Speaker 01:
For instance, especially regarding that 2006 post-deployment questionnaire, the appellant essentially wants this court to accord no weight to that at all.

[00:13:56] Speaker 01:
And so that's weighing of the evidence.

[00:13:58] Speaker 01:
That's impermissible.

[00:14:00] Speaker 01:
And then at the appellant's reply at 14, 15, 16,

[00:14:04] Speaker 01:
he explicitly asked the court to consider the evidence again and says the question is whether the prejudicial error analysis is obviously correct.

[00:14:13] Speaker 01:
Now, of course, as I stated at the beginning, the biggest issue with the appellant's argument is that the Veterans Court simply did not engage in impermissible de novo fact-finding or in substituting its own judgment for the board's.

[00:14:25] Speaker 04:
Now, the limiting principle... Did the Veterans Court decide in this case that Mr. Miranda's symptoms were due to anxiety and depression?

[00:14:35] Speaker 01:
The Veterans Court noted that there was evidence that the head symptoms could be due to anxiety and depression.

[00:14:45] Speaker 04:
Wait, is that what they said?

[00:14:46] Speaker 04:
That there's evidence they might be due to it?

[00:14:49] Speaker 04:
I actually... What exactly did they say?

[00:14:55] Speaker 01:
On APPX 14, the Veterans Court states that the 2007 VA treatment notes found that his neurologic symptoms may have been due to a head injury and suggested that his symptoms were due to anxiety and depression, not a head injury.

[00:15:10] Speaker 01:
So the Veterans Court, unlike I think what counsel represents, did not base its finding on this.

[00:15:16] Speaker 01:
It was one of many factors that the Veterans Court noted.

[00:15:19] Speaker 01:
And it's not a situation at all like the factual situations in Tadlock or in Mayfield.

[00:15:25] Speaker 01:
In both Tadlock and Mayfield, the board made one finding, the Veterans Court found that that was not enough and that the board made an error, and yet affirmed on a completely different finding in which the Veterans Court specifically noted that neither the board nor the VA had engaged in that finding.

[00:15:43] Speaker 01:
Here we have the completely different situation, where the Veterans Court determined that the Board made an error, but found that the Board noted and engaged with all the relevant facts.

[00:15:54] Speaker 01:
And in fact, if you look at the Veterans Court decision, it continuously cites what the Board did, what the Board noted, what the Board found.

[00:16:00] Speaker 01:
And so it's simply not a situation where we have two circles that are far apart and there's no overlap like what happened in Tadlock and McDonough.

[00:16:09] Speaker 01:
Here, instead, we have two almost concentric circles.

[00:16:12] Speaker 01:
And I think that what's happening is that Mr. Miranda is attempting to make a mountain out of a molehill and pointing to the slight distinctions between the Veterans Court's analysis and the board's.

[00:16:22] Speaker 01:
But there's no requirement that the two be identical.

[00:16:25] Speaker 01:
Indeed, I think, as Judge Moore, you noted, if the findings were identical, then there would be no prejudicial error analysis at all, because the board would not have erred.

[00:16:35] Speaker 01:
I also want to turn to what Appellant said about the limiting principles.

[00:16:40] Speaker 01:
I think it's clear that Appellant is actually trying to

[00:16:45] Speaker 01:
to constrict those limiting principles even beyond what this court found in McDonough and, in fact, wants to completely ignore this court's decisions in Newhouse, Mletchick, and Fleshman.

[00:16:55] Speaker 01:
In the Tadlock case, this court said, affirmance in the face of an error may be made by the Veterans Court if the record already contains findings made previously by the VA or the board that support affirmance or the record makes clear

[00:17:10] Speaker 01:
that the board could not have reached any other decision, it seems like Appellant is suggesting that this court limit just to the issue of the board not reaching any other decision and not engage with the issue of whether the record already contains findings that support affirmance.

[00:17:27] Speaker 01:
And here, the record is replete with findings that support affirmance.

[00:17:31] Speaker 01:
I also want to note Appellant's statement that

[00:17:36] Speaker 01:
The Chenery Doctrine precludes affirmance of the Veterans Court's decision.

[00:17:40] Speaker 01:
But in this court's decision in Newhouse, it stated, a determination of whether a VA error is prejudicial or harmless is not a determination or judgment which VA alone is authorized to make.

[00:17:53] Speaker 01:
Therefore, a prejudicial error analysis in and of itself does not violate Chenery.

[00:17:58] Speaker 01:
And we're not stating that Chenery can never be violated, but this court also stated in Fleshman that the Chenery Doctrine is not applied inflexibly.

[00:18:06] Speaker 01:
And therefore, I think it's just clear in this case, based on the record and based on a comparison of the board's decision and the Veterans Court decision, that Chenery was not violated.

[00:18:16] Speaker 01:
The Veterans Court did not engage in such de novo fact finding that there could be an adequate reversal.

[00:18:23] Speaker 01:
Before I sit down, I just briefly want to touch on Appellant's argument regarding the 2006 post-deployment questionnaire.

[00:18:32] Speaker 01:
Ms.

[00:18:32] Speaker 01:
Miranda's argument on that point,

[00:18:35] Speaker 01:
basically saying that it's an absence of an official record or a lack of an official record makes little sense.

[00:18:41] Speaker 01:
His reasoning would have us disregard the form and the statements on it altogether.

[00:18:46] Speaker 01:
And in doing so, a twist section 1154B in a manner that could not have reasonably been intended, I think by his logic, you basically could never use a form that's harmful to the veteran to rebut a presumption that

[00:19:01] Speaker 01:
to rebut the presumption that the veteran had used lay evidence to satisfy prong one and therefore would turn it into a nigh irrebuttable statutory presumption which this court has specifically cautioned against.

[00:19:14] Speaker 01:
I'm happy to answer any other questions.

[00:19:16] Speaker 01:
Otherwise, respectfully request that this court dismiss or affirm.

[00:19:21] Speaker 03:
Which?

[00:19:23] Speaker 01:
Well, we would ask in the first instance that this court dismiss, but if this court determines that it has jurisdiction, then we would ask in the alternative that the court affirm.

[00:19:33] Speaker 01:
Thank you.

[00:19:33] Speaker 04:
Do we have jurisdiction to look at the CAVC's prejudicial error determination?

[00:19:42] Speaker 01:
This court has jurisdiction to determine whether the Veterans Court exceeded its jurisdiction by making de novo findings a fact, but it can't go beyond that and certainly cannot make a determination that weighs the evidence or goes to actual prejudice.

[00:19:57] Speaker 04:
But can't we assess whether or not Chenery, for example, was violated by the Veterans Court deciding a fact that is different than what the board found?

[00:20:11] Speaker 01:
In that very limited circumstance, this court could decide that the Veterans Court violated Chenery, but I don't think that it could

[00:20:23] Speaker 01:
go so far as to reverse the Veterans Court's determination on that ground, because then you'd have to look at whether the balance of those facts still support a finding of no harmless error by the board, and that's a factual determination.

[00:20:38] Speaker 01:
But I think that Chenery does not stand for the principle, again, that the Veterans Court cannot make a single finding of fact that's clearly based in the record before the court that the board didn't make.

[00:20:51] Speaker 01:
What Chenery stands for is a situation where the agency did not make a determination at all on that ground, and the Veterans Court made a determination that was wholly outside what the agency made, and that's not what happened here.

[00:21:04] Speaker 04:
It seems like a much broader understanding of these legal principles than our Tadlock decision.

[00:21:10] Speaker 01:
I don't think that TADLOC necessarily stands for the principle that the Veterans Court cannot make a single finding of fact outside what the board specifically made.

[00:21:23] Speaker 01:
Indeed, it did not overrule Fleshman and Newhouse and Mletchick, and in those cases, the

[00:21:32] Speaker 01:
Court stated that the doctrine does not prohibit a reviewing court from affirming an agency decision on a ground different from the one used by the agency if the new ground is one that calls for determination or judgment, which the administrative agency alone is to make.

[00:21:49] Speaker 01:
And I think that the cases that support

[00:21:55] Speaker 01:
the determination here make clear that TADLOC does not stand for that proposition where the Veterans Court can make one single stray finding, and that obviates its entire prejudicial error analysis.

[00:22:07] Speaker 01:
And TADLOC, of course, also states that the Veterans Court is not limited to considering only the facts relied on by the board and the VA, but can and must consult the full agency record.

[00:22:18] Speaker 01:
And again, I think TADLOC is just so...

[00:22:21] Speaker 04:
between consulting a record and making a fact-finding, isn't there?

[00:22:27] Speaker 04:
And doesn't 7261C expressly prohibit fact-finding?

[00:22:31] Speaker 01:
Yes, but again, I don't think that the Veterans Court was necessarily making a fact-finding.

[00:22:36] Speaker 01:
What it stated in its decision was noting that there was a VA treatment note that found that his neurologic symptoms may have been due to anxiety and depression.

[00:22:46] Speaker 04:
That was not the... They conclude that the medical records didn't support or

[00:22:51] Speaker 04:
were medical records contradicted Mr. Miranda's testimony?

[00:22:56] Speaker 01:
They found that the medical records as a whole contradicted Mr. Miranda's testimony, but that's also... Is that not a fact-finding?

[00:23:03] Speaker 04:
What medical records disclose?

[00:23:05] Speaker 04:
Isn't that a fact-finding?

[00:23:08] Speaker 01:
It is the same fact-finding made by the court, or sorry, made by the board.

[00:23:14] Speaker 04:
determine that Mr. Miranda's medical records, the 2007 records, did not in fact support his testimony?

[00:23:21] Speaker 01:
Well, the board didn't specifically find that the 2007 medical records standing alone were not consistent with his testimony, but neither did the Veterans Court.

[00:23:30] Speaker 01:
Both the board and the Veterans Court looked at Mr. Miranda's records as a whole and found that

[00:23:37] Speaker 01:
the evidence was not credible because the statements were both internally contradictory and contradictory to some of the service and medical records.

[00:23:46] Speaker 04:
So if I were to read the Veterans Court's opinion as finding or concluding or whatever you want to say that these particular medical records

[00:24:00] Speaker 04:
are in conflict with or don't support his testimony, where could I find the genesis of that fact finding in the board's opinion?

[00:24:07] Speaker 04:
Where would be the place you'd like to direct me in the appendix where I can look to see that the board actually made a similar fact finding and that this is not the Veterans Court making a fact finding?

[00:24:20] Speaker 01:
Well, again, not specifically with regard to the 2007... Where did they say we've reviewed the medical records and we see none that support his testimony or something?

[00:24:30] Speaker 04:
They don't have to articulate that one in particular.

[00:24:32] Speaker 04:
They could have made a more general statement, but you and I both agree that the statute prohibits the CABC from making fact findings, even with regard to prejudicial error, because C comes right after B, right?

[00:24:44] Speaker 04:
So even with regard to prejudicial error, they can't make fact findings.

[00:24:48] Speaker 01:
Well, the board specifically states with regard to 1154B that it finds by clear and convincing evidence that the reports are not credible and that as explained above, the veteran has variously reported that his TBI was the result of different things and states that these are in contradiction to the 2006 post-deployment questionnaire.

[00:25:12] Speaker 01:
And I think it's important to note that in its 1154... Does any of that have to do with the medical records?

[00:25:18] Speaker 01:
It does because the medical records find that the medical records are the source of some of the veterans' various reportings as to why his information contradicted each other.

[00:25:29] Speaker 01:
Some of that was in the medical records.

[00:25:31] Speaker 01:
Some of that was in lay statements.

[00:25:33] Speaker 01:
But I think what's important is that the board specifically says, as explained above, and as explained above, there's

[00:25:40] Speaker 01:
I think two and a half pages worth of the board making factual findings regarding both lay statements of the veteran and statements that were made in the course of medical determinations.

[00:25:54] Speaker 01:
And I think to find no prejudicial error, you don't only need to look to that one paragraph regarding 1154B, you need to look to the board's decision as a whole, because the board's decision as a whole has that factual basis, makes a lot of findings a fact of the various

[00:26:10] Speaker 01:
treatment records and the various veteran statements and as a whole the board, again referring back to that, found that the veterans evidence was not, that there was clear and convincing evidence that the reports were not credible.

[00:26:26] Speaker 02:
If you were to... What you have here is a situation in which maybe what the board did was not prompt, but we also have to take account of the rule of prejudicial error.

[00:26:39] Speaker 02:
Board found he was not credible.

[00:26:42] Speaker 02:
The CABC found that the board said he was not credible.

[00:26:50] Speaker 02:
Maybe they put it in the wrong box instead of at step one, but at step one, you know, that's a legal issue.

[00:26:58] Speaker 02:
And whether they made a mistake in putting it in the wrong box, if they found his testimony not satisfactory because it wasn't credible, this whole presumption goes away, right?

[00:27:07] Speaker 01:
Yes, Your Honor, we agree with that point.

[00:27:10] Speaker 01:
So even if this court finds that the Veterans Court erred in its legal analysis and agrees with that board, that would still be grounds for affirmance because the Veterans Court's error would then be harmless if the court found that the board did not err in the first instance.

[00:27:25] Speaker 01:
I see I'm out of time, so thank you.

[00:27:28] Speaker 00:
I'd like to make three quick points, Your Honor.

[00:27:31] Speaker 00:
First, on jurisdiction.

[00:27:32] Speaker 00:
I heard the government say a lot about jurisdiction, but ultimately concede that this court does have jurisdiction to determine whether chain reapplies.

[00:27:39] Speaker 00:
They make the same concession at page 17 of their brief.

[00:27:42] Speaker 00:
So we think that's clear.

[00:27:43] Speaker 00:
Judge Dyke, to your question about whether this is just a wrong box-checking exercise, we don't think so, because the question at step three is whether clear and convincing evidence rebuts his credibility.

[00:27:54] Speaker 00:
At step one, the question is whether he's a do satisfactory lay evidence, considering only the evidence in his favor.

[00:28:00] Speaker 00:
And here, the 2007 and 2008 treatment notes are consistently in Mr. Miranda's favor.

[00:28:06] Speaker 00:
Considering that evidence alone, the board may well have reached a different result.

[00:28:11] Speaker 00:
Second, I want to address Mayfield.

[00:28:14] Speaker 00:
The other side says Mayfield is distinguishable from this case because I'm nitpicking a single factual finding about anxiety and depression, whereas in Mayfield there are more facts.

[00:28:22] Speaker 00:
They looked at the whole record.

[00:28:24] Speaker 00:
That's not an accurate characterization of Mayfield, Your Honors.

[00:28:26] Speaker 00:
In that case,

[00:28:28] Speaker 00:
The Federal Circuit said the veterans court held that the statutory nose requirements were satisfied by a different letter than the ones the board had considered.

[00:28:39] Speaker 00:
That is a single factual finding.

[00:28:41] Speaker 00:
that the court said, we can't say that the error is harmless, such that chainery does not apply.

[00:28:45] Speaker 00:
We can't say that there's not the slightest uncertainty that that error was harmless.

[00:28:48] Speaker 00:
We're going to send it back down for the Veterans Court to remand to the board so they can consider this one notice, which if you read Mayfield, the Federal Circuit, this court is absolutely clear that it thought that letter was clearly designed to satisfy VA statuary notice requirements.

[00:29:02] Speaker 00:
Nonetheless, this court said, there's some doubt that the error might not be harmless.

[00:29:06] Speaker 00:
We have to remand under chainery.

[00:29:08] Speaker 00:
I think that leads me to my third point.

[00:29:09] Speaker 00:
It also puts the lie to their view of Newhouse and Emilecek.

[00:29:14] Speaker 00:
Those cases do say that harmless error has to be reconciled with chainery.

[00:29:18] Speaker 00:
But it can't be the fact that because the Veterans Court has to consider prejudicial error and the Channery doesn't apply, that same rule of prejudicial error appears in the APA, 5 USC, section 706.

[00:29:31] Speaker 00:
So their rule really would render Channery a dead letter because every court reviewing agency action has to take due account of the rule of prejudicial error.

[00:29:38] Speaker 00:
That statutory obligation cannot obviate the Channery doctrine.

[00:29:41] Speaker 00:
And I think it's telling.

[00:29:42] Speaker 00:
I didn't hear my friend on the other side say one word against my hypothetical, that if the board simply recited the facts and then said service connection denied, that the Veterans Court on their view could affirm even though the board did not discuss one piece of law at all in its analysis.

[00:29:56] Speaker 00:
That can't be the law.

[00:29:57] Speaker 00:
There's at least some slight uncertainty that the result in this case will be different.

[00:30:00] Speaker 00:
So we ask the court to vacate and remand.

[00:30:02] Speaker 00:
Thank you, Your Honor.

[00:30:04] Speaker 04:
OK.

[00:30:04] Speaker 04:
I thank both counsel.