[00:00:00] Speaker 01: Our first case for argument today is 22-1981 Schwab v. McDonough. [00:00:04] Speaker 01: Mr. Carpenter, please proceed. [00:00:08] Speaker 04: May it please the court that Ms. [00:00:10] Speaker 04: Carpenter, appearing on behalf of Ms. [00:00:11] Speaker 04: Carolyn Schwab, who is the surviving spouse and substituted appellant in these proceedings. [00:00:18] Speaker 04: Mrs. Schwab, before the Veterans Court, as acknowledged by the Veterans Court, asked that court to determine whether or not the board's reliance upon the preponderance of evidence standard was contrary as a matter of law to the only standard of proof that is available for the adjudication of VA benefits. [00:00:37] Speaker 04: And only the standard of proof of the benefit of the doubt was the appropriate standard to be considered. [00:00:44] Speaker 04: We do not believe that the record below supports the determinations or conclusions made by the Veterans Court following this court's decision in Lynch, that the board had, in fact, expressly addressed the weight of the evidence and found that evidence not in appropriate balance and explained why it was persuaded that the evidence was against a rating of higher than 50%. [00:01:12] Speaker 04: The board on remand, we believe, did not consider as was directed whether or not there was an entitlement to a 70% rating based upon the agreed upon terms of the joint remand. [00:01:27] Speaker 04: This is not a matter which was directly presented to the Veterans Court, but rather was returned by the Veterans Court on remand. [00:01:34] Speaker 04: In this case, the board concluded only that Mr. Schwab's PTSD disability still more closely approximated 50% rather than any other higher rating. [00:01:47] Speaker 04: This court in Maddox concluded that the board followed the proper approach in assigning probative value. [00:01:54] Speaker 04: It is Mrs. Schwab's assertion that that was not done in this case, that Dr. List's medical evidence [00:02:01] Speaker 04: as part of the terms of the joint motion for remand, which was prepared by the secretary, expressly stated that the parties agreed that remand was warranted for the board to apply the Veterans Court opinion in Bankhead and for consideration of the appellant's acknowledged symptoms of suicidal ideation. [00:02:23] Speaker 04: That was simply not done by the board on remand. [00:02:26] Speaker 04: It did not explain why Dr. Liss's evidence [00:02:30] Speaker 04: was not consistent with the holding in Bankhead, or that he did not in fact have symptoms of suicidal ideation as identified by Dr. Liss, nor did the board identify on remand. [00:02:45] Speaker 03: I don't understand what you're arguing to us. [00:02:48] Speaker 03: Where in your blue brief is this stuff about not following the remand? [00:02:51] Speaker 03: You don't even cite the Bankhead case in your blue brief. [00:02:56] Speaker 03: I thought your whole argument was about whether the board could be a trier of fact or not. [00:03:05] Speaker 04: Well, Your Honor, those contentions were rejected by this court in both Maddox and Roan. [00:03:12] Speaker 04: And therefore, since this case transitioned from a time in which the decision was made [00:03:19] Speaker 04: Let me get the correct dates here. [00:03:21] Speaker 03: So do you agree that the arguments made in your blue brief are foreclosed by Maddox and Roan? [00:03:27] Speaker 04: I believe they are addressed by Maddox and Roan, Your Honor, yes. [00:03:30] Speaker 04: I do not necessarily believe that they're controlled by Maddox and Roan, because this court in Maddox and Roan specifically acknowledged what the responsibility was [00:03:39] Speaker 04: in applying the benefit of the doubt rule. [00:03:43] Speaker 04: And we do not believe that Mrs. Schwab received that benefit pursuant to the joint motion for remand. [00:03:50] Speaker 04: And that's the point that we are trying to make in this argument. [00:03:54] Speaker 04: If this court believes that this matter is completely controlled by Maddox and Roan, then I will not take up any more time of this court. [00:04:04] Speaker 02: Well, what's your best argument that it's not controlled by Maddox and Roan? [00:04:08] Speaker 04: Well, it's what I just presented, Your Honor, as it relates to the first issue, which was the rating of 70% or more. [00:04:16] Speaker 02: How about whether or not the board and the VA can be fact-finders? [00:04:22] Speaker 02: Have we resolved that? [00:04:24] Speaker 04: Yes, I believe you have, Your Honor. [00:04:26] Speaker 02: So you're not pressing that any longer, given our findings? [00:04:29] Speaker 04: Given your decisions in Roanoke? [00:04:31] Speaker 02: How about whether the fact-finders have to label or identify or determine if evidence is positive or negative? [00:04:41] Speaker 02: Are you pressing that any longer? [00:04:42] Speaker 04: No, Your Honor. [00:04:43] Speaker 04: I understood that those arguments were rejected in Maddox and Roanoke. [00:04:46] Speaker 02: So just, if you could help me, I know you already said it, but what's left of your appeal? [00:04:51] Speaker 04: Well, to me what's left is that in the second issue, which dealt with special monthly compensation under 1114 as one, the only reference, or excuse me, the board explained its decision in that case in the context of the use of the preponderance of evidence standard as being against [00:05:14] Speaker 04: Mr. Schwab's ability to secure or follow substantial gainful occupation due to his post-traumatic stress disorder. [00:05:22] Speaker 04: It did not resolve the benefit of the doubt in terms of whether or not there were any evidence, affirmative evidence, to the contrary. [00:05:31] Speaker 04: There was no evidence in this record that expressly said that he could not follow due to his PTSD. [00:05:38] Speaker 04: More importantly in the context of this case, Mr. Schwab had been granted PTSD. [00:05:44] Speaker 04: granted PTSD for multiple disabilities for his coronary artery disease and for his post-traumatic stress disorder. [00:05:52] Speaker 04: The obligation of the board was to determine whether or not one or the other would be able to support it. [00:06:00] Speaker 04: The board made the determination that it could be supported under CAD, but was not supported based upon post-traumatic stress disorder. [00:06:11] Speaker 01: I'm sorry, but Mr. Carpenter, those arguments are not subject to our review. [00:06:17] Speaker 01: We don't have jurisdiction to review those arguments. [00:06:19] Speaker 01: So what remains of the arguments you made in your blue brief for us to resolve today, given your admissions regarding the fact finder and the positive and negative evidence and all of that? [00:06:31] Speaker 01: I'll be honest. [00:06:34] Speaker 01: I don't understand what you're saying here today, and I don't find it to be consistent with the way the case was briefed. [00:06:40] Speaker 01: I mean, sure, I get and I understand that sometimes intervening precedent comes out that changes the nature of what you could continue to pursue. [00:06:52] Speaker 01: But the answer in that case, with all due respect, is to acknowledge it and dismiss it, not to try to give the court a completely different new argument that I don't find in your brief. [00:07:06] Speaker 04: In that case, Governor, I apologize, and I will withdraw from any further argument, submit this matter to the court. [00:07:14] Speaker 00: Do you have any further questions? [00:07:15] Speaker 00: Do you have any further questions? [00:07:16] Speaker 00: Thank you. [00:07:17] Speaker 00: Do you need to say anything? [00:07:19] Speaker 00: OK, the answer to that is no. [00:07:25] Speaker 00: Great argument, Governor.