[00:00:00] Speaker 04:
OK, we will hear argument next in number 221239, Spicer against McDonough.

[00:00:08] Speaker 04:
Ms.

[00:00:08] Speaker 04:
Burbank.

[00:00:10] Speaker 01:
Good morning, and may I please the court.

[00:00:13] Speaker 01:
The secretary and Mr. Spicer both agree that the statutory phrase resulting from means but for causation.

[00:00:20] Speaker 01:
The panel below and the secretary, however, define but for causation too narrowly.

[00:00:27] Speaker 01:
And really, there's two errors here at issue.

[00:00:30] Speaker 01:
First, the Veterans Court has redefined but for causation to require a positive mechanism that triggers the disease or the aggravation.

[00:00:43] Speaker 01:
And then second.

[00:00:45] Speaker 04:
The onset of it, the growth of it, as opposed to the non-diminution of it.

[00:00:51] Speaker 01:
or stopping of it, correct?

[00:00:53] Speaker 01:
The question is one of whether there has to be something that triggers it actively rather than an inability to act or a failure to act.

[00:01:04] Speaker 01:
And the ability to see the difference between what this etiological nexus is that the Veterans Court imposes and how but for causation generally works

[00:01:17] Speaker 01:
You can see in not just veterans cases, but it may be helpful to take a very simple slip and fall type case.

[00:01:27] Speaker 01:
When you spill water in a grocery store and someone slips and falls, that is an action that causes the slip and fall.

[00:01:35] Speaker 01:
But also, if you fail to clear your sidewalk of ice and someone slips and falls on it, that is also a but for cause.

[00:01:43] Speaker 01:
But for causation doesn't make this distinction between a positive action

[00:01:47] Speaker 01:
and a negative action or an inability to act.

[00:01:50] Speaker 01:
And that's also clear in the OGC opinion, this obesity hypothetical that the OGC has created.

[00:02:00] Speaker 01:
The OGC and the secretary has said that when a veteran cannot exercise, and that induces obesity, and that obesity induces another disability in the hypothetical there,

[00:02:18] Speaker 01:
hypertension, that can be the but for causation.

[00:02:22] Speaker 01:
That causal chain is not broken just because part of it is an inability to act.

[00:02:28] Speaker 01:
The same thing happens here.

[00:02:30] Speaker 01:
Mr. Spicer, it is undisputed, has service-connected leukemia.

[00:02:36] Speaker 01:
It's also undisputed that his leukemia and the relating chemotherapy drugs have lowered his red blood cell count

[00:02:44] Speaker 01:
And the ratio of the hematocrit, that's the ratio of red blood cells in the blood, is too low for him to get an operation on his knee.

[00:02:54] Speaker 01:
There's no dispute that if... Is that still true today?

[00:02:57] Speaker 01:
That is still true today.

[00:02:58] Speaker 01:
He has leukemia and presumably for the rest of his life will be taking these chemotherapy drugs to manage that leukemia, but leukemia is not gone.

[00:03:14] Speaker 01:
So because he was going in to get this surgery, because the hematocrit levels were so low, he could not have this surgery.

[00:03:21] Speaker 01:
There's no dispute, and as Judge Allen said, no dispute at all, that if it were not for his leukemia, he would have gotten this surgery.

[00:03:31] Speaker 01:
It is a but for cause.

[00:03:34] Speaker 01:
of the current condition of his knee.

[00:03:35] Speaker 01:
If not for his leukemia, he would have gotten the surgery.

[00:03:40] Speaker 04:
It may be premature, but has there been any dispute about assessing the likelihood of condition improvement if he got the surgery?

[00:03:53] Speaker 01:
The VA never got there.

[00:03:55] Speaker 01:
The board said, as a matter of law, this is not part of a but for causation chain.

[00:04:01] Speaker 01:
And therefore, that factual question has not been resolved.

[00:04:04] Speaker 01:
And it would need to be resolved on remand.

[00:04:06] Speaker 01:
That is something.

[00:04:07] Speaker 04:
And would you agree that the standard

[00:04:12] Speaker 04:
for recovery, that's for your client succeeding, would be that essentially more likely than not, there would be a reduction in the functional impairment that constitutes the disability.

[00:04:29] Speaker 04:
Not just that there is some 25% chance of a reduction in the functional impairment that constitutes the disability.

[00:04:41] Speaker 01:
Well, under the VA standard, I believe it would be as likely as not, rather than more likely than not.

[00:04:46] Speaker 01:
Covering around 50, right?

[00:04:47] Speaker 01:
Right.

[00:04:48] Speaker 01:
And then one other caveat to that, it is not simply a question of whether there would have been improvement.

[00:04:53] Speaker 01:
There's also a question of whether, since 2013, when he was going to go into the surgery, whether his knee condition has gotten worse.

[00:05:01] Speaker 01:
So even if it wouldn't have really improved his knee, it's not.

[00:05:03] Speaker 04:
There's a timing of question about comparing the but-for world, which is always part of a but-for cause.

[00:05:09] Speaker 04:
Absolutely, Your Honor.

[00:05:10] Speaker 05:
So while we're sitting here in this particular issue, September 2013 was the date he was scheduled to have surgery on his knees, right?

[00:05:20] Speaker 01:
I believe it was August, but it's right on that.

[00:05:23] Speaker 05:
OK, August 2013.

[00:05:24] Speaker 05:
He got canceled.

[00:05:25] Speaker 05:
If, hypothetically, his knee condition at that point in time in August of 2013 would have been rated something like a 20% disability or a 30% disability,

[00:05:38] Speaker 05:
And now today, his current condition is like 80% disability.

[00:05:45] Speaker 05:
Would your recovery theory be, I want that 50% in between the 80 and 30, or would you want the entire 80?

[00:05:53] Speaker 05:
And would you want it only beginning from the date of the canceled surgery, August 2013?

[00:06:00] Speaker 05:
Or do you want to go further behind that date?

[00:06:03] Speaker 05:
Those are two questions.

[00:06:04] Speaker 01:
Let me answer the second one first, because I think it's an easier, cleaner answer.

[00:06:08] Speaker 01:
No, not before the date of that surgery, because that's when the leukemia becomes part of that causal chain.

[00:06:16] Speaker 01:
Arthritis that is not service-connected is not related to service when it's a minor problem, but when it gets to the point where he would have surgery and the leukemia prevents that treatment

[00:06:31] Speaker 01:
That's when it should be service-connected.

[00:06:36] Speaker 01:
Your first question, Your Honor, relates to what the delta would be.

[00:06:41] Speaker 01:
And I want to make sure I understand the hypothetical correctly.

[00:06:44] Speaker 01:
The amount of the rating that should be granted is the delta between what would have occurred

[00:06:55] Speaker 01:
if he had had the surgery.

[00:06:57] Speaker 01:
I'm not sure if your honor was saying that it would have been 20% to 30% after the surgery or if you're saying he was 20% or 30% before the surgery when he was going to go in for the surgery.

[00:07:08] Speaker 05:
Mine is maybe a different question, which is before the surgery, he would have been rated at a certain disability level.

[00:07:17] Speaker 05:
Right.

[00:07:17] Speaker 05:
Let's say 30%.

[00:07:19] Speaker 05:
But he never got the surgery.

[00:07:22] Speaker 05:
And now today, it's gotten worse, and it's at 80%.

[00:07:25] Speaker 05:
So in view of that, would Mr. Spicer be seeking from the VA benefits for 50% of the delta between the two, or is it the full 80%?

[00:07:39] Speaker 01:
It's only the delta between what he currently

[00:07:45] Speaker 01:
experiences and what would have happened with surgery.

[00:07:48] Speaker 01:
So if surgery would have just halted the knee progression, then it would be that 50%.

[00:07:53] Speaker 05:
But if the surgery would have made him... So in your world, it doesn't matter what his condition was at the time of his surgery.

[00:08:02] Speaker 05:
What matters is what is the condition right now and what would it have been post surgery.

[00:08:07] Speaker 01:
Right.

[00:08:08] Speaker 01:
It may be useful to see what his condition was right before surgery to have an understanding or to make that factual finding of what likely would have happened if he had received the surgery, but there's just no evidence in the record, and I couldn't speculate as to what... I think in your briefing... I'm sorry, go ahead.

[00:08:28] Speaker 05:
I think in your briefing, you were suggesting that there are other situations in VA claim benefits land where there's other hypotheticals that the VA has to undertake in terms of trying to decide on how much to grant on a claim.

[00:08:49] Speaker 05:
Can you tease that out one more time?

[00:08:54] Speaker 05:
That's something that's analogous to the kind

[00:08:56] Speaker 05:
hypotheticals, you're asking the VA to undertake here?

[00:09:01] Speaker 01:
Absolutely.

[00:09:01] Speaker 01:
Under Section 1151 claims, the VA is required to... The VA medical negligence.

[00:09:09] Speaker 01:
Exactly.

[00:09:09] Speaker 01:
And the VA is required to assess what would have happened had there been the appropriate medical care compared to

[00:09:20] Speaker 01:
what exists now, and that's almost identical.

[00:09:24] Speaker 01:
As here, of course, that's not strictly speaking service connection, but the analysis is the same.

[00:09:30] Speaker 01:
On the flip side, sort of the other side of the coin, VA also has to evaluate when a diagnostic code requires it.

[00:09:39] Speaker 01:
This isn't necessarily in our briefing.

[00:09:41] Speaker 01:
I don't believe it came up below, but another hypothetical, for your honor, is

[00:09:46] Speaker 01:
when the VA is required to assess the ameliorative effects of medication on a condition and what would exist

[00:09:59] Speaker 01:
without that medication.

[00:10:00] Speaker 01:
It has to do that in diagnosing and giving readings on a regular basis.

[00:10:05] Speaker 00:
So this is not.

[00:10:07] Speaker 00:
In those two scenarios that you talked about, do you look at the veterans when you're doing the delta?

[00:10:14] Speaker 00:
Are you looking at the veterans condition at the time of determining the remedy, or are you looking at it at the time that the condition occurs?

[00:10:25] Speaker 00:
Or for the medical negligence, do you look at the condition at the time that the negligence occurred, or like five years later?

[00:10:36] Speaker 01:
Well, it depends on when the rate.

[00:10:39] Speaker 01:
As with all ratings, ratings can increase if things get worse.

[00:10:43] Speaker 01:
So it depends on when the claim is submitted.

[00:10:45] Speaker 01:
But it would be between the time when the current situation, what the present condition of the veterans

[00:10:54] Speaker 01:
disease or injury and what would have happened at that time, what they would have at this present time if they had gotten the appropriate medical care.

[00:11:07] Speaker 01:
I'm not sure if that was the cleanest answer.

[00:11:09] Speaker 00:
I understand you're saying this is something that would have to be handled on remand and there's been no work done on that.

[00:11:15] Speaker 01:
Absolutely.

[00:11:16] Speaker 01:
There would have to be evidence and presumably medical expert evidence on

[00:11:21] Speaker 01:
what likely would have happened.

[00:11:24] Speaker 00:
And right now, the only purpose for this discussion, as it occurred below, is simply conjecture or argument that it's too complicated to determine.

[00:11:32] Speaker 00:
So that helps support the government's position.

[00:11:36] Speaker 01:
The only analysis that happened at the board level was there was no discussion of the policy argument of speculation, as I recall.

[00:11:45] Speaker 01:
It was just, this is not, as a matter of law, something that can be in the causal chain.

[00:11:51] Speaker 01:
And that is really all that has been done by the VA.

[00:11:54] Speaker 01:
There's been no analysis.

[00:11:56] Speaker 00:
I could be wrong, but I thought there was some discussion in the opinion.

[00:11:59] Speaker 00:
In the opinion, yes.

[00:12:00] Speaker 00:
Just saying that the fact that this would be so complicated to determine suggests that it supports our interpretation of the statute.

[00:12:11] Speaker 00:
I thought that's what they said.

[00:12:12] Speaker 01:
Yes, that's correct.

[00:12:13] Speaker 01:
It's in the opinion below.

[00:12:17] Speaker 01:
I know I'm in my rebuttal time, but I do want to just briefly state that the second issue here is that what VA has done is import the standard from 1153, the natural progression restriction on aggravation in 1153.

[00:12:32] Speaker 05:
That is not in- Under the regs, is your claim a 3.310B claim or a 3.310A claim?

[00:12:40] Speaker 01:
A B claim, I believe.

[00:12:42] Speaker 01:
Yes.

[00:12:43] Speaker 05:
Oh, so your theory is aggravation?

[00:12:47] Speaker 01:
That delta that we're talking about is an aggravation.

[00:12:51] Speaker 01:
The distinction between aggravation and onset is one that's created by the regulation.

[00:13:01] Speaker 05:
But to the extent the regulation is.

[00:13:02] Speaker 05:
This debate you've been having about section 1110, it's not about the

[00:13:12] Speaker 05:
disability resulting from language?

[00:13:14] Speaker 05:
It's about the other next clause that talks about aggravation?

[00:13:17] Speaker 01:
No.

[00:13:17] Speaker 01:
So the next clause, the aggravation that's discussed in 1110, says aggravation of a pre-existing condition.

[00:13:26] Speaker 01:
And then 1153 further clarifies that there's a presumption for those aggravation claims.

[00:13:32] Speaker 01:
3.3 110 is not about the aggravation of pre-existing conditions.

[00:13:39] Speaker 05:
I guess what I'm wondering is if we

[00:13:41] Speaker 05:
word to conclude that disability resulting from, as that phrase is used in section 1110, means but for causation in what I'll just say the traditional historical sense and is therefore something broader than mere ideological nexus.

[00:14:02] Speaker 05:
Then is that the end of the case?

[00:14:05] Speaker 05:
Then will you have to remand?

[00:14:06] Speaker 05:
Or do we have to go the next step for your purposes and actually address the validity and validity of 3.310b?

[00:14:18] Speaker 01:
The first holding would be all that's necessary.

[00:14:23] Speaker 01:
There is no additional requirement of assessing what the definition of disability is.

[00:14:28] Speaker 01:
It's really just about resulting from.

[00:14:30] Speaker 01:
The issue is just that 3.3110

[00:14:34] Speaker 01:
B has a clause that says, and not due to the natural progression of the disease, that sort of, again, is doing that narrowing work.

[00:14:41] Speaker 05:
But I guess that was kind of the impression that your secondary service connection theory was more under A and not B. But now you're telling me it's actually B. So A, let me pull up the language.

[00:14:56] Speaker 01:
A deals with

[00:15:00] Speaker 01:
a disability that is due to or the result of service-connected disease, but then B is aggravation of non-service-connected disabilities, which Mr. Spicer's knee arthritis was non-service-connected.

[00:15:14] Speaker 01:
It was not related to service until such time as the leukemia-preventive treatment.

[00:15:25] Speaker 01:
So the aggravation, it's just a terminology for that delta that we're talking about.

[00:15:30] Speaker 01:
It's not the entire disability that needs to be serviced.

[00:15:33] Speaker 00:
If we ignore 3.310B, just set that aside for a minute.

[00:15:36] Speaker 00:
You agree, though, that section 3.310A covers Mr. Spicer's situation, right?

[00:15:43] Speaker 00:
Because it says, disability which is approximately due are the result of a service-connected disease.

[00:15:49] Speaker 00:
I believe you think that that theory covers Mr. Spicer.

[00:15:54] Speaker 00:
That language covers Mr. Spicer.

[00:15:56] Speaker 00:
Yes.

[00:15:56] Speaker 00:
Yes.

[00:15:57] Speaker 01:
Insofar as it mirrors that 1110 language, 1131.

[00:16:02] Speaker 01:
Yes.

[00:16:02] Speaker 01:
OK.

[00:16:03] Speaker 01:
Yes.

[00:16:05] Speaker 01:
I see I am now over my time, so I will.

[00:16:08] Speaker 04:
We will reserve and restore the time.

[00:16:12] Speaker 01:
Thank you.

[00:16:15] Speaker 04:
Mr. Carhart.

[00:16:17] Speaker 02:
May it please the court.

[00:16:18] Speaker 02:
I will begin where my friend Ms.

[00:16:22] Speaker 02:
Burbank left off, which is this distinction between 3.310A and 3.310B.

[00:16:29] Speaker 02:
VA's position is that what Ms.

[00:16:33] Speaker 04:
Can I ask you to begin actually on the statute?

[00:16:36] Speaker 04:
I'm not sure that you've really made an argument even that the

[00:16:41] Speaker 04:
that if you're wrong about the statute, the regulation nevertheless precludes the claim?

[00:16:48] Speaker 02:
Sure.

[00:16:49] Speaker 02:
So the statute has a conception of but for causation.

[00:16:55] Speaker 02:
1110 distinguishes between resulting from and talks about disability resulting from an injury incurred in service, and then talks about aggravation of a preexisting injury.

[00:17:08] Speaker 04:
We don't have a case of aggravation of a pre-existent injury.

[00:17:14] Speaker 02:
Correct.

[00:17:15] Speaker 02:
So the VA interpreted and implemented the first part of 1110 by creating a framework for secondary service connection.

[00:17:29] Speaker 02:
And it did so in 3.310.

[00:17:33] Speaker 02:
So the two components of secondary service connection are set forth in subsection A of the regulation and subsection B of the regulation.

[00:17:43] Speaker 02:
So in the VA's view, both of those are different forms of causation, as the Veterans Court explained.

[00:17:51] Speaker 02:
But there's a critical distinction between them in that A refers to the onset of a disease.

[00:17:57] Speaker 02:
and doesn't require the subtraction of the natural progress.

[00:18:03] Speaker 04:
Unless you're wrong about saying that A refers only to the onset, which in ordinary but for causation world with a understanding the definition of disability to be a functional impairment,

[00:18:17] Speaker 04:
If it's worse now than it would have been in the absence of the military service, then it results that the current worst condition is a result of.

[00:18:30] Speaker 02:
Is that it?

[00:18:33] Speaker 02:
But that eludes the distinction between causation and aggravation.

[00:18:37] Speaker 02:
or elides the fact that aggravation is a particular type of causation.

[00:18:41] Speaker 04:
What kind of aggravation are you talking about?

[00:18:44] Speaker 04:
We're not talking about aggravation of a pre-service condition.

[00:18:47] Speaker 04:
Correct.

[00:18:53] Speaker 04:
How does 11.10 use the word aggravation?

[00:18:58] Speaker 02:
11.10 talks about aggravation of a pre-existing... So this is not that.

[00:19:03] Speaker 04:
Correct.

[00:19:03] Speaker 04:
So why doesn't a current functional impairment

[00:19:08] Speaker 04:
I keep using that term because we've defined disability to mean that.

[00:19:12] Speaker 04:
If that resulted from the service, resulted in the ordinary but for causation sense that it would not be as bad as it now is in the absence of the service,

[00:19:24] Speaker 04:
Why aren't we done?

[00:19:26] Speaker 02:
So if you look at the Veterans Court's definition of result, which is the word here, the Veterans Court relied on the barrage Supreme Court decision, which defined result in terms of arise.

[00:19:39] Speaker 02:
The Veterans Court similarly looked at words like that.

[00:19:42] Speaker 04:
I find you don't contest, and that barrage is among a number of cases that say,

[00:19:47] Speaker 04:
that in the absence of something special, words like result and arise mean but for causation and nothing more.

[00:19:55] Speaker 04:
Nothing further is required.

[00:19:57] Speaker 04:
And you haven't said in your brief that more than but for causation is required.

[00:20:01] Speaker 04:
Am I right about that?

[00:20:03] Speaker 02:
In terms of the issues before this court, that's correct.

[00:20:06] Speaker 02:
3.310B does have approximate cause requirement, but that wasn't addressed by the Veterans Court.

[00:20:13] Speaker 02:
So it's not properly before this court.

[00:20:14] Speaker 02:
We agree with that.

[00:20:15] Speaker 02:
We're talking about but for causation in this appeal.

[00:20:19] Speaker 02:
So we definitely agree with that.

[00:20:22] Speaker 04:
I keep returning to this very simple minded point that if the functional impairment today would not be as severe in the absence of service as it is,

[00:20:35] Speaker 04:
then the service is a but for cause of the current state of the functional impairment.

[00:20:44] Speaker 02:
And that's but for cause.

[00:20:45] Speaker 02:
Our response is that but for cause actually looks at the onset of the disease.

[00:20:51] Speaker 02:
And the reason for that is the definitions employed by the Supreme Court and relied upon by the Veterans Court, which look at how a disease arose

[00:21:02] Speaker 02:
So if you're talking about arising, if you're talking about proceeding from, you're looking at the chronological relationship between the disability and the service-connected disease.

[00:21:14] Speaker 02:
Our point is that the leukemia, excuse me.

[00:21:19] Speaker 05:
We're having a little debate here about what but for causation means.

[00:21:24] Speaker 05:
Your theory seems to be it has to be tied to the onset of the disability.

[00:21:29] Speaker 05:
That's correct.

[00:21:31] Speaker 05:
As I understand the statute, disability resulting from the term disability is

[00:21:37] Speaker 05:
we've all interpreted it as the present-day disability, not the onset of said disability, as that term disability is used in 1110.

[00:21:46] Speaker 05:
Is that right?

[00:21:47] Speaker 02:
The present-day disability is the disability.

[00:21:50] Speaker 02:
That's right.

[00:21:50] Speaker 05:
Right.

[00:21:51] Speaker 05:
So that takes care of that issue.

[00:21:54] Speaker 05:
Then a way of translating 1110 is the present-day disability resulting from is another way to think about the statute.

[00:22:05] Speaker 05:
is the cause of the present day disability.

[00:22:09] Speaker 05:
We're looking at the current condition of the functional impairment.

[00:22:13] Speaker 05:
And if that's the case, then classic but for language, but for some action having occurred, would we still have this result?

[00:22:24] Speaker 05:
I mean, there would be a lot of different actions that took place along the way.

[00:22:28] Speaker 05:
But one of them seems to be the fact that Mr. Spicer has undergone chemotherapy and has done something to his

[00:22:35] Speaker 05:
red blood cell count that makes him no longer eligible for surgery to correct his knee disability.

[00:22:44] Speaker 02:
Our response to that is that the but for causation contemplated by Congress distinguished between onset and worsening.

[00:22:54] Speaker 00:
Where in the statute do you see that?

[00:22:56] Speaker 02:
We see that in 1110 when it talks about the distinction between disabilities resulting from or aggravation of a pre-existing.

[00:23:03] Speaker 00:
But aggravation is pre-existing.

[00:23:05] Speaker 00:
It's limited to a particular thing, pre-existing.

[00:23:09] Speaker 00:
Unlike the regulation, it doesn't say any aggravation.

[00:23:13] Speaker 00:
It says pre-existing.

[00:23:15] Speaker 00:
So it's not.

[00:23:15] Speaker 00:
Right.

[00:23:16] Speaker 02:
I agree.

[00:23:17] Speaker 02:
And the VA had to translate that through 3.1 OB, through the regulation, to a

[00:23:28] Speaker 02:
a situation where you have a worsening disease.

[00:23:32] Speaker 02:
So in other words, Congress contemplated a distinction generally between onset of disease and worsening of disease.

[00:23:40] Speaker 00:
So in your view, because the statute refers to aggravation of a pre-existing disease, pre-existing service, that means that resulting from has a more circumscribed meaning.

[00:23:54] Speaker 02:
That's correct in the sense that the VA then had to translate resulting from... Well, let's set aside.

[00:24:04] Speaker 02:
We're just looking at the statute.

[00:24:07] Speaker 00:
Understood.

[00:24:08] Speaker 00:
You're trying to use the regulation to support your interpretation of the statute.

[00:24:11] Speaker 00:
I understand, but I want to understand, just looking at the language of 1110, what it is you're relying on.

[00:24:19] Speaker 00:
And what I hear you saying, correct me if I'm wrong, I just want to make sure I understand your argument.

[00:24:23] Speaker 00:
is that because it talks about aggravation of pre-existing, we should interpret that to mean that any aggravation is limited.

[00:24:32] Speaker 00:
or that resulting from doesn't include aggravation of any condition?

[00:24:37] Speaker 02:
The first step is that there's a distinction between resulting from an aggravation, understanding that the aggravation is talking about pre-existing conditions in that context.

[00:24:46] Speaker 02:
The second step is then getting to secondary service connection, which is not explicitly addressed in 1110.

[00:24:53] Speaker 02:
And the VA had to come up with a framework for secondary service connection that's consistent with the statutory

[00:25:01] Speaker 02:
framework generally, which distinguishes between resulting from and aggravation.

[00:25:07] Speaker 02:
So the point is... Aggravation of a pre-existing injury.

[00:25:11] Speaker 02:
That's right.

[00:25:11] Speaker 02:
The point is, though, that the type of situation that is arising here with Mr. Spicer presents the same sorts of concerns as aggravation of a pre-existing injury does.

[00:25:25] Speaker 02:
In that, you have an injury that rose.

[00:25:28] Speaker 05:
Would you agree that etiological nexus, medical cause of something, is a narrower conception of but for causation than but for causation as understood by the Supreme Court?

[00:25:46] Speaker 05:
I just need an answer to that question.

[00:25:49] Speaker 02:
I'm not sure what ideological cause means exactly.

[00:25:51] Speaker 02:
The Veterans Court seemed to define it in terms of the onset of the disease.

[00:25:55] Speaker 02:
And that, in our view, is consistent with the distinction between causation and aggravation, or the distinction that Congress draws in 1110.

[00:26:08] Speaker 02:
So in that sense, we would defend a definition of causation.

[00:26:15] Speaker 05:
Can I hear your general definition for causation?

[00:26:19] Speaker 05:
What uses the words but for in it?

[00:26:24] Speaker 02:
I mean the barrage, the veterans court.

[00:26:43] Speaker 03:
So this doesn't use the word but.

[00:26:45] Speaker 03:
Well, this is the barrage.

[00:26:46] Speaker 05:
Sure.

[00:26:48] Speaker 02:
It's an Appendix 7.

[00:26:49] Speaker 05:
Not the Veterans Court.

[00:26:51] Speaker 02:
It's an Appendix 7.

[00:26:54] Speaker 02:
It's the barrage case.

[00:26:56] Speaker 02:
And what we're relying on.

[00:26:58] Speaker 02:
And so what is that definition?

[00:27:00] Speaker 05:
But for definition, using the words but for by the Supreme Court?

[00:27:05] Speaker 02:
In the usual, the last sentence, which is followed by, which proceeds from a couple other sentences, is in the usual course, this requires proof that the harm would not have occurred in the absence of, that is but for, the thing from which it purportedly results.

[00:27:20] Speaker 05:
Does that fit Mr. Spicer's situation?

[00:27:24] Speaker 05:
Well, if you look at the earlier explanation, it's... I know you've got other arguments, but just broadly speaking, just based on that sentence, based on that definition of but for causation, and we all agree but for causation applies to the term disability resulting from in section 1110.

[00:27:41] Speaker 05:
Mr. Spicer's story, Mr. Spicer's theory of how his service-connected leukemia and subsequent necessary chemotherapy treatments have interfered with his ability

[00:27:53] Speaker 05:
to get any kind of corrective surgery on his knees, just broadly speaking, I know you've got other arguments, would that fit under that definition of but for that you just quoted from the Supreme Court?

[00:28:05] Speaker 02:
Your question, Judge Shen, turns on how you define harm.

[00:28:09] Speaker 02:
If you think of the harm in the sentence I just read,

[00:28:11] Speaker 02:
as the current state of the harm, then that supports Mr. Spicer's position.

[00:28:19] Speaker 04:
If you think of the harm and- I'm sorry, but don't we have to do that?

[00:28:21] Speaker 04:
Because the word harm is not in the statute.

[00:28:23] Speaker 04:
So the substitute in the statute for harm is disability.

[00:28:27] Speaker 04:
Disability is functional impairment, which is measured

[00:28:30] Speaker 04:
today compared not to some other thing.

[00:28:33] Speaker 04:
So the question is whether the current state of functional impairment would be what it was in the absence of a thing that is alleged to be the cause, which in this case is military service.

[00:28:45] Speaker 02:
So again, the disability is the current state of the impairment.

[00:28:52] Speaker 02:
The question, though, goes to the disease that's claimed to be the cause of that disability in the relationship between.

[00:29:03] Speaker 04:
Isn't that contrary to what I took to be established in our precedent?

[00:29:09] Speaker 04:
And I don't think you dispute this, that disability is functional impairment.

[00:29:15] Speaker 04:
It's not the underlying disease that causes the functional impairment.

[00:29:19] Speaker 04:
It is the functional impairment.

[00:29:21] Speaker 02:
Right.

[00:29:22] Speaker 02:
And the way that that issue arises is in a framework that distinguishes between how that disability was caused and whether it was aggravated.

[00:29:32] Speaker 02:
In other words, that issue does come up.

[00:29:35] Speaker 02:
And we're not quibbling or disputing the definition of the word disability.

[00:29:40] Speaker 02:
We're saying that there is a well-established distinction between onset and aggravation that is applied elsewhere.

[00:29:47] Speaker 02:
And it was reasonable for the best reading

[00:29:51] Speaker 02:
of 1110, when the VA has to think about how to come up with a framework for secondary service connection that accommodates the same concerns that Congress explicitly recognized with respect to pre-existing injuries or diseases.

[00:30:09] Speaker 02:
And those same concerns arise in the case of a disease or injury that arises after service.

[00:30:15] Speaker 02:
It was reasonable for the VA to import that same.

[00:30:18] Speaker 02:
It was the best reading of the VA.

[00:30:20] Speaker 02:
We say we don't rely on Chevron.

[00:30:23] Speaker 02:
We know Chevron.

[00:30:24] Speaker 02:
But we say we have the best reading of the statute to try to make secondary service connection harmonious with the framework Congress set out.

[00:30:37] Speaker 02:
Because I just read from this passage, just as a housekeeping matter, the Veterans Court

[00:30:49] Speaker 02:
decision or this Veterans Court quotation from Barrage does have language that's not in Barrage itself as far as we could tell.

[00:30:58] Speaker 02:
The block quote starting from namely to condition that language seems to have been a supplement from the Veterans Court.

[00:31:05] Speaker 02:
I just want to make that crystal clear because I read from that block quote.

[00:31:10] Speaker 04:
There are other contexts.

[00:31:14] Speaker 04:
My recollection is that your brief spends a lot of time saying, suggesting, I'm not quite sure what the right verb is, that there's something

[00:31:26] Speaker 04:
very, very odd about talking about what might have been about speculative possibilities.

[00:31:33] Speaker 04:
And I kept reading that and thinking, that's the very definition of but for cause.

[00:31:38] Speaker 04:
It is, but for this, what would the world have looked like?

[00:31:42] Speaker 04:
It's baked in.

[00:31:44] Speaker 04:
The speculation about a world that does not in fact exist is baked into the inquiry.

[00:31:51] Speaker 04:
So I found it very odd to read all of the

[00:31:56] Speaker 04:
the assertions that there's something extremely strange about considering the way the world would have been but is not in fact.

[00:32:04] Speaker 04:
Can you help me understand that?

[00:32:07] Speaker 02:
The distinction we were drawing, Your Honor, is between, on one hand, the typical type of causation analysis that's done, which is a knee injury arises in service and later presents as a knee disability.

[00:32:23] Speaker 02:
And there's medical knowledge connecting the presence of a previous knee

[00:32:31] Speaker 02:
Injury with a later knee disability So that's an inference that can be drawn based on the medical the medical evidence It is different to to speculate how a surgery would have would have turned out which which isn't really an inference, but a Speck is what's the Veterans Court described it?

[00:32:52] Speaker 04:
Right, but your position and I think the Veterans Court and board's position is that even if a

[00:32:59] Speaker 04:
it were 100% certain that the medical intervention that the service precluded would completely cure this other condition.

[00:33:11] Speaker 04:
So it's a pill, or not just surgery, or it's a surgery like many knee replacement

[00:33:19] Speaker 04:
surgeries that has an extremely high rate of condition improvement success that doesn't matter just off the table in terms of but for causation.

[00:33:32] Speaker 02:
Well, the first point is if the court agrees to the distinction between onset and aggravation, which is the framework that the Veterans Court was applying, you also have to think about the natural progress of the disease.

[00:33:45] Speaker 02:
So that has to be subtracted.

[00:33:47] Speaker 02:
And oftentimes, that's going to

[00:33:49] Speaker 02:
In a case like this, where you're talking about affirmative medical intervention, that's going to be dispositive of the issue, because you're talking about the natural progress of the disease.

[00:33:59] Speaker 02:
So affirmative medical intervention is encompassed within that.

[00:34:03] Speaker 02:
The closer you get to 100%, the stronger the argument that Mr. Spicer would have.

[00:34:12] Speaker 02:
All we have on this record is an appendix 33.

[00:34:17] Speaker 04:
I think we were talking in Ms.

[00:34:19] Speaker 04:
Burfeck's argument that this is an issue for remand, whether she can meet the hovering around 50% likelihood standard that prevails in the veteran system.

[00:34:35] Speaker 04:
for resolving the factual contention about how things would have been in the absence of the service.

[00:34:43] Speaker 02:
The board's framework for looking at this was at Appendix 33.

[00:34:48] Speaker 02:
And so what the board says is while the record reflects a canceled knee replacement in 2013, the record doesn't reflect any proximal aggravation or worsening beyond natural progression of the veteran's knee arthritis by leukemia.

[00:34:58] Speaker 02:
So the board was saying, you have to look at how the knee injury would have developed naturally.

[00:35:06] Speaker 02:
And with that framework, which is the 3.310B framework, there's no compensable aggravation.

[00:35:16] Speaker 02:
Happy to address any other questions, but I might have to.

[00:35:19] Speaker 04:
Thank you for your argument, Ms.

[00:35:23] Speaker 04:
Burbank.

[00:35:25] Speaker 04:
Well, you have the five minutes back, I guess.

[00:35:28] Speaker 01:
Thank you, Your Honor.

[00:35:30] Speaker 01:
Let me start where my learned colleague left off, which is citing the board decision.

[00:35:36] Speaker 01:
I just want to clarify that talking about the board's application and looking at the natural progress of the disease is because the board is required to follow the regulation at issue here, the 3.3 110, saying that the natural progress of the disease

[00:35:52] Speaker 01:
prevents looking at the causal chain here.

[00:35:57] Speaker 01:
So when we're talking about what the statute means, the fact that the board applied the statute is really neither here nor there.

[00:36:04] Speaker 01:
I also want to address the contention that but for causation means onset.

[00:36:10] Speaker 01:
I think that's distinguishing between causation and what the definition of disability is.

[00:36:16] Speaker 01:
And I just want to affirm that Mr. Spicer's position is that the disability means

[00:36:22] Speaker 01:
the current state of his condition, the functional impairment as it exists today, and therefore you could have multiple causes, multiple but for causes, there's multiple things in that stream.

[00:36:34] Speaker 01:
So the fact that we're looking at just the delta between what would have happened and

[00:36:43] Speaker 01:
with surgery and what he has today, even though his arthritis didn't start because of service, still is within that butt floor causation, that natural term, as defined by the Supreme Court in Burrage.

[00:36:57] Speaker 05:
And just to talk a little bit about Burrage, in that case... The block quote that the government quoted for butt floor causation from Burrage, it does speak in terms of

[00:37:10] Speaker 05:
give rise to or bring about.

[00:37:13] Speaker 05:
And what are we supposed to do about that?

[00:37:18] Speaker 05:
I mean, that sort of suggests maybe, just maybe, when we think about what for causation we ought to be thinking about

[00:37:26] Speaker 05:
but for causation in the sense of what brought about the current conditions.

[00:37:32] Speaker 01:
Again, that's, again, thinking about whether the onset.

[00:37:35] Speaker 05:
Rather than cutting off the entire story up to the present day and just looking at the present day.

[00:37:42] Speaker 01:
Again, the but for causation, the distinction here is whether there is an action or an inaction.

[00:37:49] Speaker 01:
And that's really not discussed in Burrage.

[00:37:51] Speaker 01:
Burrage is talking about whether when there are

[00:37:56] Speaker 01:
multiple things that make it unclear what the cause of death was.

[00:38:03] Speaker 01:
That there is a mandatory minimum sentence if there is a death from providing heroin to someone.

[00:38:10] Speaker 01:
And there was evidence on the record trying to determine whether it was a but for cause.

[00:38:17] Speaker 01:
And there was a jury instruction saying, well, if it contributed at all to the death, then this

[00:38:25] Speaker 01:
mandatory minimum applies and the Supreme Court says no you need a but for causation.

[00:38:30] Speaker 01:
We need to know that but for the heroin there would or would not have been this death.

[00:38:38] Speaker 01:
Here the issue is whether but for Mr. Spicer's leukemia he would have his current knee condition and

[00:38:49] Speaker 01:
there is no dispute that he would have had the surgery if not for his hematocrit levels.

[00:38:53] Speaker 01:
So it is not the sole cause, but that is not but for causation.

[00:38:58] Speaker 01:
But for causation does not require a single but for cause.

[00:39:02] Speaker 01:
There is the fact that he has knee arthritis that's nonservice connected, and then also the fact that he is unable to get this treatment.

[00:39:11] Speaker 01:
And the idea that the effects of treatment

[00:39:15] Speaker 01:
are part of that causal anchor just are not at issue here.

[00:39:18] Speaker 01:
That's sort of rote for the VA to understand that medicine and an intervening medical treatment can be part of what the current disability is.

[00:39:29] Speaker 04:
Can I double check something with you?

[00:39:31] Speaker 04:
You're not relying on the one contemporary view called loss of opportunity in tort law, which says that even if

[00:39:45] Speaker 04:
There is a 20% chance that some improvement would have occurred.

[00:39:53] Speaker 04:
You can recover for the loss of the opportunity for the 20% chance.

[00:39:57] Speaker 04:
No, Your Honor.

[00:39:59] Speaker 04:
OK.

[00:40:00] Speaker 05:
I suppose if Mr. Spicer, due to his inability to get a knee surgery, that led to other health complications.

[00:40:08] Speaker 05:
Maybe he was wheelchair-bound and, I don't know, maybe developed obesity and diabetes and several other maladies.

[00:40:18] Speaker 05:
All of those would be part of a causal chain that goes back to his service-connected leukemia, in your view.

[00:40:26] Speaker 01:
Under Payne v. Wilkie, I think that would be a factual question to really know that there is that full causal chain.

[00:40:32] Speaker 01:
But yes, it is possible.

[00:40:34] Speaker 01:
In Payne v. Wilkie, the court determined that the causal chain in that case can be something like an inability to exercise leads to obesity, leads to erectile dysfunction because of that obesity.

[00:40:54] Speaker 01:
And that erectile dysfunction can be

[00:40:56] Speaker 01:
can be service-connected all the way back to that original, I believe in that case it was hand and upper arm extremity disability.

[00:41:09] Speaker 01:
So an inability to exercise leads, and there's a downstream chain.

[00:41:12] Speaker 01:
So yes, there can be this longer chain, but here the chain is pretty simple.

[00:41:18] Speaker 01:
It's really that he was going to get this treatment and could not because of his leukemia.

[00:41:25] Speaker 01:
And the last thing I want to say, and I know I've run over my time, so if I may.

[00:41:30] Speaker 01:
It depends how long it is.

[00:41:32] Speaker 01:
I will keep it short, Your Honor.

[00:41:34] Speaker 01:
I just want to clarify that the 3.3110 language of aggravation is VA using a term of aggravation to distinguish between onset and when we're talking about that delta.

[00:41:50] Speaker 01:
That's not the same aggravation that's reflected in

[00:41:53] Speaker 01:
1110 and 1131, because that is pre-existing injuries.

[00:42:00] Speaker 01:
And with that, Mr. Spicer respectfully requests that this court reverse and remand for further back-development.