[00:00:00] Speaker 02:
The first case for argument today is 22-1436, Rodriguez versus McDonough.

[00:00:09] Speaker 02:
Mr. Luck, please proceed.

[00:00:11] Speaker 00:
Good morning, Your Honors.

[00:00:13] Speaker 00:
May it please the Court?

[00:00:14] Speaker 00:
Adam Luck, appearing on behalf of Appellant Julio Rodriguez.

[00:00:19] Speaker 00:
It's well settled that the Veterans Court may not make findings of fact in the first instance, but that is exactly what happened at Appendix 6 through 8 when the Board found

[00:00:28] Speaker 02:
Excuse me, when the Veterans Court found that Mr. Rodriguez's 2019 dizziness and vertigo exam was adequate, as shown at appendix 101 through 102, the board made no such finding, nor did it find... Well, did it find that it was adequate on its own or did it say or find that the board had implicitly found it was adequate?

[00:00:53] Speaker 00:
Correct, Your Honor.

[00:00:54] Speaker 00:
So the Veterans Court

[00:00:57] Speaker 00:
made this initial finding under the guise that the board had made an implicit finding that the board determined the exam to be adequate.

[00:01:06] Speaker 02:
But then the Veterans Court finding is not as you first articulated it, that they in the first instance found that the examination was adequate.

[00:01:15] Speaker 02:
What they really did was review what they found to be the board's implicit finding for clear error and decide whether that was correct.

[00:01:23] Speaker 00:
Well, that's precisely the error in this case, Your Honor, is

[00:01:27] Speaker 00:
the Veterans Court's determination that there was an implicit finding was reliant on the Board's determination that there was a probative value assignment to the exam.

[00:01:44] Speaker 03:
Are you contending that implicit findings are not permissible?

[00:01:47] Speaker 00:
Well, in this case, Your Honor, we're relying on Sicklesby-Shinseki

[00:01:51] Speaker 00:
in which the appellant in Sickles argued that the board may not make an implicit adequacy determination.

[00:02:02] Speaker 00:
And this court found that whenever the issue has been presented by the veteran under section 7104D1, the board is required to address that issue

[00:02:11] Speaker 00:
with a statement of reasons and bases.

[00:02:13] Speaker 00:
And that's precisely what happened here is Mr. Rodriguez did present that issue to the board and the board made no finding as to, due to assist, whether it had been satisfied or not.

[00:02:26] Speaker 00:
It did not recite or discuss or even cite to any applicable law or criteria to determine what

[00:02:33] Speaker 00:
is inadequate.

[00:02:34] Speaker 02:
How about let's look at appendix page six if you don't mind.

[00:02:38] Speaker 02:
This is I think the Veterans Court decision and it says in the very bottom paragraph, tell me when you're with me I want to give you a second to get there.

[00:02:49] Speaker 00:
I am your honor.

[00:02:50] Speaker 02:
Where it says a review of the record

[00:02:52] Speaker 02:
shows that the board did address the appellant's argument that the examination was inadequate, but the board did not find it persuasive.

[00:03:02] Speaker 02:
So here's one problem you have.

[00:03:05] Speaker 02:
I, as a judge on appeal, have limited jurisdiction.

[00:03:08] Speaker 02:
That's a fact finding, right?

[00:03:10] Speaker 02:
The board did address this.

[00:03:13] Speaker 02:
How do I go behind that and say, no, the board didn't?

[00:03:16] Speaker 00:
Well, so that finding, Your Honor,

[00:03:19] Speaker 00:
was based on a misinterpretation of 7104D1 that the board can make this implicit finding based on a probity finding, assigning probative value.

[00:03:31] Speaker 00:
So if we look further down in that paragraph on Appendix 6,

[00:03:36] Speaker 00:
where the Veterans Court said, the Board implicitly found 2019 Exam for Dizziness and Virgo to be adequate when it assigned it probative value and then relied on it to deny the appellate's claim.

[00:03:52] Speaker 00:
Probity and adequacy are separate and distinct issues that require separate and distinct legal analyses.

[00:03:58] Speaker 00:
So it's Mr. Rodriguez's argument that merely assigning probative value to the exam does not suffice to address adequacy.

[00:04:07] Speaker 00:
And that's in which the error lies in this case.

[00:04:12] Speaker 00:
signing probative value to circumvent a adequacy finding that was expressly raised by Mr. Rodriguez to the board.

[00:04:22] Speaker 00:
And again, the board did not address his argument.

[00:04:26] Speaker 00:
It did not say what standard it used to make any adequacy determination, nor did it even expressly say that the exam is or is not adequate.

[00:04:36] Speaker 00:
It merely moved on, skipped that step, and assigned probative value, and then

[00:04:41] Speaker 00:
relied on that probative value finding in absence of an adequacy finding to deny Mr. Rodriguez's claim.

[00:04:47] Speaker 00:
So when the Veterans Court in this case affirms the Board's decision based on this implicit finding, it was relying on a misinterpretation of 71-04-D1 to allow the Board to ignore the Veterans expressly raised argument

[00:05:04] Speaker 00:
that his exam was inadequate and merely assigned probative value to dismiss that without actually addressing it under the applicable law and criteria for determining adequacy.

[00:05:17] Speaker 00:
Mr. Rodriguez further notes that

[00:05:20] Speaker 00:
This is very similar to the issue that was raised in Sickles v. Shinseki, as previously mentioned, in which this court found that when the issue of adequacy is expressly raised by the veteran, 7104D1 requires the board to quote, write up the determination with adequate statement of reasons and basis for its finding as to adequacy.

[00:05:45] Speaker 00:
But even beyond Sickles, the Veterans Court's own precedent

[00:05:49] Speaker 00:
And McCray v. Wilkie also requires the board to specifically address the veterans' arguments that are expressly raised and presented to the board for adjudication.

[00:06:01] Speaker 00:
And McCray, almost a very similar fact pattern happened in which the veteran presented an argument attacking the adequacy of a VA exam, specifically attacking the underlying evidence on which that exam was based.

[00:06:18] Speaker 00:
The board ignored the veterans, expressly raised arguments, and then relied on the exam to deny the veterans' claim.

[00:06:26] Speaker 01:
Mr. Lough, you're certainly well aware that we have essentially no jurisdiction over facts.

[00:06:34] Speaker 01:
And able advocates of veterans, which includes you, do their best to convert a fact case into a question of law.

[00:06:47] Speaker 01:
It strikes me that this is simply denial of service connection for dizziness and vertigo.

[00:06:55] Speaker 01:
Tinnitus was remanded, so why don't we lack jurisdiction?

[00:07:00] Speaker 00:
Well, you are certainly correct, Your Honor, that this was a denial of service connection for dizziness and vertigo.

[00:07:06] Speaker 00:
What it was not was any sort of finding about the adequacy on which that exam that formed the basis for that denial was whether it was adequate or not.

[00:07:16] Speaker 00:
And Mr. Rodriguez's argument- Is not a fact questioned?

[00:07:19] Speaker 00:
Well, Your Honor, Mr. Rodriguez's argument to the board is that the record was incomplete.

[00:07:24] Speaker 00:
The VA's duty to assist had not been satisfied because his exam was inadequate.

[00:07:28] Speaker 00:
whenever the board reached a determination as to service connection, it did not address his argument and did not address whether the underlying record was complete in which to make that determination.

[00:07:42] Speaker 00:
And without doing so, it violated this court's and its own precedent, which this court does have jurisdiction to determine whether the Veterans Court exceeded its jurisdiction in making its decision.

[00:07:55] Speaker 02:
I guess, oh, I'm sorry.

[00:07:58] Speaker 00:
Are you done?

[00:08:02] Speaker 02:
My question is, so Mr. Rodriguez, as I see it, his only adequacy argument is on pages 81 and 82.

[00:08:10] Speaker 02:
And the only argument he made was the examination was based on an inaccurate factual premise because it found dizziness started in 2011 and not 2003.

[00:08:19] Speaker 02:
And then I think, if I'm not mistaken on page 101,

[00:08:26] Speaker 02:
The board addressed and rejected that argument, the only inadequacy argument he raised with regard to the dizziness and vertigo.

[00:08:34] Speaker 02:
Not the tinnitus, but the dizziness and vertigo.

[00:08:39] Speaker 02:
So I don't know if they ignored it.

[00:08:41] Speaker 02:
I think they addressed it on page 101, right?

[00:08:44] Speaker 02:
The only argument he made about adequacy was the start date, 2003 versus 2011.

[00:08:50] Speaker 02:
And here they addressed it.

[00:08:53] Speaker 00:
Well, they didn't, Your Honor.

[00:08:54] Speaker 00:
They, again, the board made one finding and one finding only, and that's service connection.

[00:08:59] Speaker 02:
If we, if you look at, um, page 101 and also- They just say on, uh, July, 2011, audiology consult, the veteran stated that his dizziness and spinning started at the same time months ago from the date of the appointment.

[00:09:16] Speaker 02:
Further on,

[00:09:18] Speaker 02:
In February of 2019, a VA examiner stated a veteran reported that he gets dizzy and has ringing in his ears worse than a left ear, but since 2011.

[00:09:28] Speaker 02:
It seems to me that he says that it started in 2003, but they're addressing this and they're indicating that

[00:09:40] Speaker 02:
The evidence of record is that it started in 2011.

[00:09:43] Speaker 02:
Unless I'm mistaken, am I wrong?

[00:09:47] Speaker 02:
I looked at pages 81 and 82, and that's the only adequacy argument that he made.

[00:09:54] Speaker 02:
Did he make any other adequacy arguments?

[00:09:57] Speaker 00:
That's the only argument he made, Your Honor.

[00:09:59] Speaker 00:
But again, what the board is doing in this situation is relying on a VA exam

[00:10:04] Speaker 00:
and not addressing the veteran's arguments that his exam was inadequate because what the examiner did was say, you don't have vertigo, vertigo started after service.

[00:10:13] Speaker 00:
Didn't address dizziness in which that service treatment record notes dizziness that began in service.

[00:10:20] Speaker 00:
But more specifically, there's no finding as to what adequacy criteria were used, why the exam was inadequacy.

[00:10:27] Speaker 00:
This is a finding that's based on service connection, not whether the underlying evidence that supports that service connection finding was adequate.

[00:10:35] Speaker 00:
was complete on which to base that decision.

[00:10:38] Speaker 00:
And that's Mr. Rodriguez's argument is that he's presenting a material issue of law or fact to the board for adjudication and the board is not addressing it.

[00:10:47] Speaker 00:
The board did address service connection.

[00:10:49] Speaker 00:
And if we compare Appendix 101 with its tinnitus decision at Appendix 100, you can see how the board lays out its decision.

[00:10:59] Speaker 00:
And the first sentence under tinnitus on Appendix 100

[00:11:03] Speaker 00:
it states the claim.

[00:11:04] Speaker 00:
The claim is the veteran is claims that he's service-connected, should be service-connected for tinnitus.

[00:11:11] Speaker 00:
It discusses the evidence and then concludes at the top of Appendix 101, the board finds service connection for tinnitus is not warranted.

[00:11:20] Speaker 00:
Then subsequently in that paragraph, it addresses Ms.

[00:11:24] Speaker 00:
Rodriguez's

[00:11:25] Speaker 00:
argument that his VA exam was inadequate, and it says, we acknowledge the veterans requested remand, do an inadequate medical exam.

[00:11:32] Speaker 00:
However, the board finds exam adequate.

[00:11:34] Speaker 00:
That's all it says.

[00:11:35] Speaker 00:
If you look at appendix 101, it does the exact same thing under the dizziness and vertigo.

[00:11:40] Speaker 00:
It states the claim of the first sentence

[00:11:42] Speaker 00:
It finds service connection for business and vertigo is not warranted.

[00:11:45] Speaker 00:
The only thing it did not do is actually address Mr. Rodriguez's inadequacy argument.

[00:11:49] Speaker 03:
So you're looking for the words adequate.

[00:11:51] Speaker 03:
Are you essentially looking for like magic words in this particular document in order to decide whether or not it was addressed?

[00:11:57] Speaker 00:
We're not, Your Honor.

[00:12:00] Speaker 00:
requires the board to provide a written statement of reasons to basis that allows Ms.

[00:12:03] Speaker 00:
Rodriguez to understand the precise reasons for the board's decision.

[00:12:07] Speaker 00:
That is impossible to know the precise reasons of the board's decision here because we don't even know what criteria it used to make an adequacy determination.

[00:12:14] Speaker 00:
It never addressed his argument or how it understood or interpreted his argument and it never actually made an adequacy determination.

[00:12:21] Speaker 00:
The only thing it did is rely on the exam.

[00:12:23] Speaker 00:
It skipped the step, and it skipped addressing his argument entirely.

[00:12:29] Speaker 00:
It assigned a probative value, and that's all the board did.

[00:12:32] Speaker 00:
Mr. Rodriguez's argument is that he wants to be heard.

[00:12:36] Speaker 00:
He wants to understand the board's reasons why it rejected his argument that his exam was inadequate.

[00:12:44] Speaker 00:
The board didn't address that.

[00:12:46] Speaker 00:
The board ignored him.

[00:12:47] Speaker 00:
It did address

[00:12:49] Speaker 00:
his argument for inadequacy on the tinnitus claim.

[00:12:52] Speaker 02:
Well, when you say his exam was inadequate, I don't think so.

[00:12:56] Speaker 02:
I think the only adequacy argument he raised is that it should have been considered that his dizziness began in 2003, not 2011.

[00:13:06] Speaker 02:
So that's it.

[00:13:07] Speaker 02:
It's not that the exam's inadequate.

[00:13:09] Speaker 02:
It's not like he's saying the doctor didn't do the following tests, which a normal doctor would have done in these circumstances.

[00:13:15] Speaker 00:
Well, he's arguing that the exam is inadequate because it doesn't explain how the 2003 service treatment record impacts the opinion.

[00:13:28] Speaker 00:
It doesn't explain whether dizziness and not vertigo began in 2003.

[00:13:33] Speaker 00:
It only says vertigo is a post-service condition.

[00:13:37] Speaker 00:
And to the extent that, and we're very deep in the facts here, I completely recognize that, but to the extent that

[00:13:45] Speaker 00:
The board finds that the onset of dizziness was 2011, not 2003.

[00:13:51] Speaker 00:
That is a medical finding that requires the medical examiner to address, here's when dizziness began, here's when vertigo began, here's where the two are one and the same, or here's why they are not.

[00:14:02] Speaker 00:
Here are the separate distinct symptoms.

[00:14:04] Speaker 00:
and here are the onset dates or which.

[00:14:08] Speaker 00:
Or even more specifically, if we're going to talk about service connections, service connections are only limited to what began in service.

[00:14:15] Speaker 00:
It can be related to service in any way, shape, or form.

[00:14:17] Speaker 00:
It doesn't necessarily have to be that the condition only is service-connected if it began during service.

[00:14:23] Speaker 00:
So there's more to

[00:14:27] Speaker 00:
addressing Mr. Rodriguez's argument as to adequacy than just assigning it probative value.

[00:14:32] Speaker 00:
And that's really what this case is about, is that Mr. Rodriguez presented an argument to the board.

[00:14:38] Speaker 02:
You are using all your rebuttal time.

[00:14:40] Speaker 02:
Do you want to save some?

[00:14:42] Speaker 00:
I will save some, Your Honor.

[00:14:43] Speaker 00:
Thank you.

[00:14:43] Speaker 00:
Very good.

[00:14:45] Speaker 02:
Miss, is it Geddes?

[00:14:48] Speaker ?:
I guess.

[00:14:48] Speaker 02:
Does that say it?

[00:14:49] Speaker 02:
Yes.

[00:14:49] Speaker 02:
How's your last name?

[00:14:50] Speaker 04:
Geddes.

[00:14:51] Speaker 02:
Geddes.

[00:14:51] Speaker 02:
Miss Geddes.

[00:14:52] Speaker 02:
Please proceed.

[00:14:53] Speaker 04:
May it please the court?

[00:14:55] Speaker 04:
As has already been discussed, this is a court of limited jurisdiction.

[00:14:59] Speaker 04:
This court does not have jurisdiction over questions of fact or application of law to fact.

[00:15:05] Speaker 04:
So the simplest way to resolve this case is to look at the decision of the Veterans Court.

[00:15:10] Speaker 04:
which, as has already been noted, did not simply dive into the facts and make a de novo finding of fact, but rather made an explicit finding that the board did provide reasons and basis for its decision, not just on each claim, but on each specific issue, including, as the Veterans Court specifically noted, the question of whether Mr. Rodriguez's 2019 examination was adequate.

[00:15:36] Speaker 04:
There was no incorrect legal framework applied.

[00:15:40] Speaker 04:
The Veterans Court expressly cited the correct laws at all stages as the court had noted when it turned to the merits of Mr. Rodriguez's inadequacy argument.

[00:15:50] Speaker 04:
It did so under the clearly erroneous standard as it was supposed to do.

[00:15:54] Speaker 03:
In this case, are you arguing to dismiss for lack of jurisdiction or are you just arguing for an affirmance?

[00:16:00] Speaker 04:
for an affirmance of the Veterans Court's decision, because the issue being raised by Mr. Rodriguez would be within the Court's jurisdiction.

[00:16:09] Speaker 04:
It's a question of whether the Veterans Court made a de novo finding of fact.

[00:16:13] Speaker 04:
That question is within this Court's jurisdiction, but in this case, from the face of the Veterans Court's opinion, it's clear that there was no de novo finding of fact.

[00:16:22] Speaker 04:
because all it did in order to affirm the board's decision was first consider whether it had provided reasons for bases and then turn to the question of whether there was clear error.

[00:16:33] Speaker 04:
But to the extent this court would like to dig deeper into whether that was the correct decision, this is essentially a case about whether the board provided adequate reasons or bases

[00:16:44] Speaker 04:
for its decision to rely on the 2019 medical examination, despite Mr. Rodriguez's argument against it.

[00:16:52] Speaker 04:
In Mr. Rodriguez's argument for the board, however, he didn't flesh out this detailed adequacy argument that he's developed over the course of his appeals.

[00:17:00] Speaker 04:
Rather, he made a very brief one-paragraph argument that said there was an instance in 2003, which is eight years before there was any other evidence of dizziness or vertigo on the record,

[00:17:13] Speaker 04:
But he was saying that because there was a single complaint of dizziness eight years earlier in a physical therapy appointment for his shoulder, that shows that the 2019 examination must be based on an inaccurate statement of fact and is therefore inadequate and has no probative weight.

[00:17:31] Speaker 04:
That's the entirety of his argument before the board, and the board fully addressed the substance of that argument.

[00:17:37] Speaker 04:
The only thing it failed to do was specifically use the word adequacy

[00:17:41] Speaker 04:
which isn't particularly surprising given that Mr. Rodriguez wasn't making this detailed adequacy argument.

[00:17:48] Speaker 04:
He made a much more detailed adequacy argument for Tinnitus and the board, and that's part of the reason that that was ultimately remanded, because the board rejected that argument without explaining its reasons and bases.

[00:18:01] Speaker 02:
But in the case of this dizziness... Let's turn to page 101, which is the place, I think you agree that's where the board did address this, right?

[00:18:09] Speaker 02:
Yes.

[00:18:11] Speaker 02:
And the board acknowledges that the veteran's STR show a complaint of service in service of dizziness when he gets out of bed and that he received medical treatment for this condition at the VA with medicine, right?

[00:18:26] Speaker 02:
So the board opinion acknowledges dizziness and treatment in 2003.

[00:18:33] Speaker 02:
And then at the bottom, they say, in light of the foregoing, the board finds the February 2019 VA examination and the absence of medical evidence suggesting a relationship of his dizziness in service to his current dizziness or vertigo to be persuasive and of greatest probative value.

[00:18:52] Speaker 02:
Where exactly are they concluding that it was adequate?

[00:18:58] Speaker 02:
Or what sentence should I read as an implicit conclusion that it was adequate?

[00:19:03] Speaker 04:
Well, when the board finds the February 2019 examination to be persuasive and of the greatest probative value, it is implicitly finding it adequate because the board would not assign probative weight to an inadequate decision.

[00:19:19] Speaker 04:
And as I've said, part of the reason

[00:19:22] Speaker 04:
that it's not particularly surprising that the board didn't make an explicit statement saying that it finds the opinion adequate is because Mr. Rodriguez's very brief argument challenges challenging this opinion.

[00:19:33] Speaker 04:
All it does is say that because of this one 2003 complaint of dizziness the medical opinion is therefore based on an inaccurate fact and is inadequate.

[00:19:44] Speaker 04:
It wasn't a more developed legal argument of inadequacy.

[00:19:48] Speaker 04:
But on page 101 the

[00:19:51] Speaker 04:
board does acknowledge the 2003 dizziness.

[00:19:57] Speaker 04:
Then it notes, however, on a July 2011 audiology consult, the veteran stated, so Mr. Rodriguez himself stated in 2011, that his dizziness and spinning sensation had began only a few months prior.

[00:20:10] Speaker 04:
Then in 2019, once again, the report shows that it was Mr. Rodriguez who stated to the examiner that he had been having these symptoms since 2011.

[00:20:19] Speaker 04:
So the board looked at that evidence and it concluded that there was nothing to connect his current symptoms of dizziness, which he himself cites as beginning in 2011, to this evidence in 2003 that he had experienced some mild dizziness at that time.

[00:20:34] Speaker 04:
There was really nothing else for the board to say because there was no other argument that Mr. Rodriguez made regarding the adequacy of the board's decision.

[00:20:44] Speaker 04:
For his Kennedy's claim, he had made more substantial arguments about whether the examiner had made inconsistent findings or conflated what was going on.

[00:20:54] Speaker 04:
And in that case the board gave even less of an explanation for why it was rejecting that claim.

[00:21:00] Speaker 02:
Are Mr. Rodriguez's claims for tinnitus and vertigo inextricably intertwined?

[00:21:06] Speaker 04:
That is something that neither the board nor the Veterans Court ever had an opportunity to consider.

[00:21:11] Speaker 04:
Mr. Rodriguez initially did claim that his vertigo and dizziness were secondary to his tinnitus condition, but when he was denied service condition for both of those, his only argument to the board was that it should reconsider vertigo and dizziness because the vertigo and dizziness examination was inadequate.

[00:21:33] Speaker 04:
He never made the argument that it should be remanded because his tinnitus examination was inadequate, nor did he make that argument to the Veterans Court.

[00:21:41] Speaker 04:
Nor did he make that argument even after the secretary conceded that the tinnitus issue should be remanded.

[00:21:48] Speaker 04:
At that point, he knew that would almost certainly be remanded, but he did not ask to remand Dizziness and Vertigo on that basis.

[00:21:55] Speaker 04:
But more importantly, Mr. Rodriguez is free if his tinnitus claim, if he's granted service connection for tinnitus, he'll have the opportunity to bring a new claim for Dizziness and Vertigo as secondary to that if he so chooses.

[00:22:08] Speaker 04:
But at this point in this proceeding, the court is only tasked with deciding whether the Veterans Court committed some error.

[00:22:15] Speaker 04:
The Veterans Court made no decision whatsoever on whether these claims were inextricably intertwined.

[00:22:20] Speaker 04:
Mr. Rodriguez had not asked the Veterans Court to reconsider the Dizziness and Vertigo rulings based on any error with the tinnitus examination.

[00:22:31] Speaker 04:
It's just clear that the Veterans Court did not commit any error.

[00:22:34] Speaker 04:
The only grounds that Mr. Rodriguez has asserted to find error is that there was a de novo finding of fact, but that's clearly not the case.

[00:22:41] Speaker 04:
The Veterans Court never considered whether it was inextricably intertwined.

[00:22:45] Speaker 04:
Mr. Rodriguez never asked it to do so.

[00:22:47] Speaker 04:
The Veterans Court addressed the arguments that Mr. Rodriguez did make, and there's no basis for this court to reverse its finding on dizziness and vertigo on that basis.

[00:22:58] Speaker 02:
Well, that sounds like your conclusion.

[00:22:59] Speaker 02:
Thank you, Mr. Kettick.

[00:23:01] Speaker 02:
Thank you.

[00:23:01] Speaker 02:
Mr. Lutz will restore two minutes of rebuttal time.

[00:23:05] Speaker 00:
This case asks the court to address the issue of whether section 7104D1 requires the board to expressly address a veteran's expressly raised argument regarding the adequacy of his VA exam or whether that argument can be satisfied through appropriate finding.

[00:23:23] Speaker 00:
Mr. Rodriguez's position is that Section 7104D1, precedent from this court, precedent from the Veterans Court, requires the Board to specifically address the Veterans expressly raised argument and that a probity finding cannot serve to supplant an adequacy determination because they are separate and distinct issues.

[00:23:47] Speaker 03:
Do you agree that you wouldn't assign probative weight to an opinion that is inadequate?

[00:23:51] Speaker 00:
No, Your Honor, and case law actually says that the board can assign some weight to even an exam that is inadequate.

[00:24:01] Speaker 00:
So some inadequate exams still hold some probative value or they can be determined to hold some probative value on other issues or

[00:24:10] Speaker 00:
or elements addressing service connections, say maybe a current diagnosis or something like that.

[00:24:17] Speaker 00:
So it's simply not true.

[00:24:19] Speaker 00:
It's actually a mistake in logic to say, well, the board would have never assigned probative weight if it hadn't determined that the exam was inadequate.

[00:24:28] Speaker 00:
That's relying on the error to prove that the error didn't happen.

[00:24:32] Speaker 03:
Do you agree you would have another chance to raise the secondary service argument after the tonight's claim is remanded?

[00:24:39] Speaker 00:
I think to the extent that the secretary's arguing that that could be a new claim raised later, not a claim that could be raised on appeal, there would have to be new and relevant evidence to support that claim.

[00:24:55] Speaker 00:
I don't think the board would hear the inextricably intertwined nature of a tinnitus claim and dizziness claim on remand.

[00:25:09] Speaker 00:
Your Honor.

[00:25:10] Speaker 02:
Okay.

[00:25:10] Speaker 02:
Thank you Mr. Locke.

[00:25:11] Speaker 02:
This case is taken under submission.