[00:00:00] Speaker 06:
And then our final case this morning is number 23, 1090, Stinson versus McDonough.

[00:00:08] Speaker 06:
Mr. Strong.

[00:00:09] Speaker 01:
May it please the court, Tom Strong for Robert Stinson.

[00:00:15] Speaker 01:
This case is about the Veterans Court's willingness to accept inexpertise despite an ultra rare cancer that required expertise.

[00:00:27] Speaker 01:
When the Veterans Court ignored its jurisdictional statute and found facts a nouveau on appeal, it denied Mr. Stinson the chance to have an expert say whether his in-service skin conditions were related to his lesion-manifesting cancer.

[00:00:45] Speaker 06:
Let me tell you what the problem that I see is.

[00:00:48] Speaker 06:
You may be right that the CBC seemed to make some fact findings that weren't compelled by the record under Tadlock.

[00:01:04] Speaker 06:
The problem is that the examiner, medical examiner, found that

[00:01:11] Speaker 06:
There couldn't, the existence of these things in 64 and 67 happened so early that they couldn't be an indication of the cancer.

[00:01:21] Speaker 06:
The Board of Veterans' Appeals agreed with that.

[00:01:25] Speaker 06:
And as I read the Veterans Court, they relied on that also.

[00:01:32] Speaker 06:
So if they did make fact findings, I guess the question is, aren't those fact findings harmless error, given that the examiner supplied evidence of a lack of connection?

[00:01:46] Speaker 01:
I don't think that they are harmless error, because ultimately, those findings were never explicit.

[00:01:55] Speaker 01:
When in the exam itself, when we look through it, it never made it explicit.

[00:02:01] Speaker 01:
Nor did the board make it explicit in its decision.

[00:02:05] Speaker 01:
And because it wasn't explicit, it didn't have a basis.

[00:02:10] Speaker 01:
And so what that did is it left the record undeveloped.

[00:02:14] Speaker 01:
And that lack of development is what prejudiced him.

[00:02:18] Speaker 06:
I'm a little confused because I thought the board was pretty explicit in their reliance on the examiner's findings.

[00:02:30] Speaker 01:
not with respect to the in-service conditions.

[00:02:34] Speaker 01:
There was no comment on his in-service conditions, and there was also no comment on his intermediate conditions from 10 years earlier, from before the cancer.

[00:02:44] Speaker 06:
So on page 16 of the A16, the board says the examiner also indicated it was highly improbable that it started in the 60s, that it was during the service, given its aggressiveness and 14-month survival rate.

[00:02:59] Speaker 01:
But there was nothing specific as to his rash and as to his lesion.

[00:03:05] Speaker 01:
And that's what we're asking for, is that we think that in this case, because there was a lesion in his nose that was causing nosebleeds, and not only that, but there was also, in 2002, there was also a cystic mass on his back that we can clarify here.

[00:03:21] Speaker 01:
He's had a cystic mass, a lesion, and then he had the cancer itself.

[00:03:25] Speaker 01:
So these things all suggest that they're related and it is at least debatable that that matters.

[00:03:34] Speaker 01:
And the Veterans Court tried to make clarity where there was debate and that really should have been left to the experts.

[00:03:44] Speaker 03:
Had you made the arguments to the board about the symptoms that manifested themselves in service?

[00:03:51] Speaker 01:
We did not, but Mr. Stinson was not represented by council at the board and he was not a medical expert.

[00:03:59] Speaker 01:
And the other thing is, is that the board, the VA has a duty on its own to raise these issues that when you see in-service conditions that could be related to a carcinogen, it's to raise them for the veteran.

[00:04:15] Speaker 01:
Because he's not in a position, he's struggling with cancer.

[00:04:18] Speaker 01:
He's not in the best position to raise.

[00:04:21] Speaker 03:
I get all that, but by the time the case gets to the Veterans Court, with him not having raised the issues, for understandable reasons perhaps, at the board level, doesn't the Veterans Court have the at least discretion to look at the totality of the record and then react in the way that it did?

[00:04:42] Speaker 01:
And in Tadlock, it looked at the totality of the record in the context of a prejudicial error review.

[00:04:50] Speaker 01:
And you're allowed to look at the record, but we're not looking at the factual findings themselves.

[00:04:57] Speaker 01:
We're looking at how the Veterans Court weighed these findings.

[00:05:02] Speaker 01:
And when you look, what it lacked discretion is it had to have a predicate fact finding at the board.

[00:05:10] Speaker 01:
in order to uphold on that basis.

[00:05:14] Speaker 03:
But there's no predicate fact-finding because the argument wasn't made to the board, right?

[00:05:20] Speaker 02:
Correct.

[00:05:21] Speaker 03:
So the implication of your argument, if I'm following it, is the Veterans Court did not have any discretion.

[00:05:28] Speaker 03:
It was obligated to remand at that point.

[00:05:31] Speaker 03:
Once the argument was made to it, that had not been made below?

[00:05:36] Speaker 01:
The Veterans Court was obligated to remand the case because it was inadequate, not to fill the gaps for the board.

[00:05:43] Speaker 01:
The board needed to do that before so that it had a cogent decision that the Veterans Court could review.

[00:05:50] Speaker 06:
I suppose the Veterans Court had said there's an examiner finding that

[00:06:00] Speaker 06:
It's unlikely that this cancer went back to the service period in the 1960s because of the way the cancer operates.

[00:06:09] Speaker 06:
And they had said, and we're now confronted with an argument that the specific indicators, the rashes, the nose blades,

[00:06:17] Speaker 06:
were indications of incipient cancer, and any such connection is covered by the examiner's findings that it was too long ago to be significant.

[00:06:33] Speaker 01:
That was not said in need.

[00:06:35] Speaker 01:
Okay.

[00:06:37] Speaker 01:
But at the same time,

[00:06:39] Speaker 01:
when Mr. Stinson's experts is treating physicians at Duke Medicine.

[00:06:44] Speaker 06:
But suppose they'd said that.

[00:06:46] Speaker 06:
Suppose the CAVC, the Veterans Court, had said what I just said.

[00:06:51] Speaker 06:
Would that be sufficient?

[00:06:52] Speaker 06:
I'm sorry, I didn't... Okay, let me try again.

[00:06:55] Speaker 06:
Suppose the Veterans Court had said, for the first time, we're confronted with arguments that there were physical manifestations.

[00:07:02] Speaker 06:
manifestations that were relevant here, the rash, the nosebleed, whatever.

[00:07:09] Speaker 06:
But we have a general finding by the examiner that this cancer wouldn't manifest itself that long ago because it's so aggressive, and therefore these new arguments don't require any remand or further consideration.

[00:07:26] Speaker 06:
I suppose they'd said that.

[00:07:28] Speaker 01:
it had been that explicit, then I think he would be stuck.

[00:07:34] Speaker 03:
They did have some options other than just having to remand, but they did not do what the question implied.

[00:07:41] Speaker 03:
Is that what your position is?

[00:07:42] Speaker 03:
I think so.

[00:07:44] Speaker 04:
Is it your position that the VA court reweighed evidence that it shouldn't have?

[00:07:50] Speaker 01:
Yeah, I think that that's what they ultimately did is that with respect to his rash that was in the same place, when you say whey, they placed it on his shoulder when his doctors had said it was on his upper back.

[00:08:07] Speaker 01:
And his upper back is where that firm cystic mass was, and also where his cancerous lesion was.

[00:08:13] Speaker 04:
And that's what you say is the factual finding that the Veterans Court should not have made.

[00:08:19] Speaker 01:
So it weighed whether it was on his shoulder, according to Mr. Stinson, and it weighed whether it was on his back, according to his doctors.

[00:08:26] Speaker 01:
And it chose Mr. Stinson because that disconnected the cancer from service.

[00:08:38] Speaker 01:
When the Veterans Court ignored reasonable experts in Section 5103A and applied Carter instead, the Veterans Court denied Mr. Stinson the chance to have his experts say if service connection was as likely as not.

[00:08:52] Speaker 01:
And I think one point that I really want to make to the court is that there, it seems to be that there was a, in the briefing, we talked about whether this was really just a

[00:09:06] Speaker 01:
Request for a new exam or whether this was like was whether he was asking for clarification under the statute under section 5103 ad an exam is necessary when there is not enough evidence to decide the claim and that can be true at the same time as under section 5103 a 2 a a 2 When it says that no reason a possibility can exist that the evidence will help the veteran

[00:09:36] Speaker 01:
So in a rare case like this where you're dealing with a ultra rare cancer, there's still a reasonable possibility that having his treating physicians opine on the likelihood that his cancer and these conditions are connected, you can have both of those going on at once.

[00:09:55] Speaker 01:
They're not mutually exclusive.

[00:09:57] Speaker 01:
So you can have an exam and you can also have his treating physician opine and if you read

[00:10:04] Speaker 01:
the examiner's own finding, she was, when she was writing the exam from the VA, she was very deferential to his experts at Duke to the point where she made it sound like, Hey, I'm going to leave these to leave this to those experts because they're world-class cancer physicians in oncology and they're treating him in this rare case.

[00:10:26] Speaker 01:
So it makes it there, there'd be a reasonable possibility that that

[00:10:31] Speaker 01:
that that opinion, that statement of the likelihood really could help Mr. Stinson.

[00:10:36] Speaker 03:
So are you arguing there should have been a clarification from the treating physician or a new exam or both?

[00:10:44] Speaker 01:
Because the exam lacked the information on his in-service conditions, on his prostate cancer, on his leukopenia, on all of these conditions that sometimes can evolve from carcinogenic exposure, I think that

[00:10:59] Speaker 01:
You can say that a new exam was necessary and also that clarification was also necessary at the same time.

[00:11:07] Speaker 01:
But if you were to get a new exam, it may not be that clarification was necessary because now you have those gaps filled.

[00:11:15] Speaker 01:
Now they've spoken to whether these conditions are related to his cancer.

[00:11:21] Speaker 01:
And that way Mr. Stinson has a full view of his evidence.

[00:11:27] Speaker 01:
But with that, unless there are any more questions, I will take a seat.

[00:11:32] Speaker 01:
Okay.

[00:11:33] Speaker 04:
Thank you.

[00:11:33] Speaker 04:
Is Mr. Spencer still alive?

[00:11:35] Speaker 01:
He is.

[00:11:35] Speaker 01:
And he's a very, very tough guy.

[00:11:40] Speaker 01:
And so it makes me glad that we have a veteran as strong as him defending our country.

[00:11:45] Speaker 01:
So with that, I'll take a seat.

[00:11:52] Speaker 06:
Okay.

[00:11:52] Speaker 06:
Thank you.

[00:12:03] Speaker 00:
May it please the Court.

[00:12:05] Speaker 00:
The Veterans Court's decision should be affirmed.

[00:12:07] Speaker 06:
The Veterans Court did make some fact findings, right, that really aren't compelled by the record.

[00:12:14] Speaker 00:
So what the Veterans Court did here is what this Court has instructed it to do and what we understood Mr. Stinson to be asking the Veterans Court to do.

[00:12:24] Speaker 00:
which is to look for an argument that wasn't expressly raised by Mr. Stinson before the board to look at the record and assess whether the argument was reasonably raised by the record.

[00:12:34] Speaker 00:
So the problem that Mr. Stinson has, one problem he has, is he's making assertions about his services.

[00:12:40] Speaker 06:
You've got to answer my question.

[00:12:42] Speaker 06:
Isn't it true that they made some fact-bindings that aren't compelled by the record?

[00:12:47] Speaker 06:
I mean, particularly as to the placement of the rash, for example.

[00:12:51] Speaker 00:
So the way I would characterize it is the Veterans Court was deciding whether issues were reasonably raised by the record before the board.

[00:13:00] Speaker 00:
I'm happy to talk about why that wasn't an impermissible fact finding to do so.

[00:13:03] Speaker 00:
First of all, I think the Veterans Court was required to do that.

[00:13:05] Speaker 00:
So it's certainly allowed to look at the evidence.

[00:13:08] Speaker 00:
So point one on the rash.

[00:13:11] Speaker 00:
So Mr. Stinson himself was the one who said it was on his shoulder.

[00:13:14] Speaker 00:
His doctor said it was on the upper back.

[00:13:17] Speaker 00:
Both the upper back and the shoulder are part of the torso, which are different places than the neck and also a different place than the nose.

[00:13:24] Speaker 00:
So that would be the point that it's undebatable.

[00:13:26] Speaker 00:
The second point is the Veterans Court was reviewing the arguments as they were presented by the parties.

[00:13:32] Speaker 00:
So the secretary pointed in his response brief to Mr. Stinson's testimony about the shoulder.

[00:13:39] Speaker 00:
You would think in his reply brief that Mr. Stinson would have warned the Veterans Court, no, no, no, this is a disputed issue.

[00:13:45] Speaker 00:
You can't rely on my own client's testimony to make the Veterans Court aware that it was resolving a disputed factual issue here.

[00:13:52] Speaker 00:
The Veterans Court, based on the briefing, didn't have any reason to think it was doing so.

[00:13:57] Speaker 00:
So that goes to

[00:13:58] Speaker 00:
a claimant's responsibility before an appeal to explain their arguments, provide reasons for what they're asking the court to do.

[00:14:05] Speaker 00:
And if there's testimony from the claimant himself about an issue, the Veterans Court should be able to presume they can rely on that unless the claimant in briefing explains why that isn't so.

[00:14:16] Speaker 00:
And then the third point

[00:14:18] Speaker 00:
is there's a missing element here, which is a connection between the service treatment records and the disability.

[00:14:28] Speaker 00:
So there has to be competent medical evidence to speak to these sort of causation issues, the relationship between a disability and medical records.

[00:14:39] Speaker 00:
And there just isn't any medical evidence that Mr. Simpson pointed to either before the Veterans Court or this court, for that matter.

[00:14:47] Speaker 00:
You can imagine that evidence taking different forms.

[00:14:50] Speaker 00:
You can imagine it being testimony from or a report from a medical expert.

[00:14:55] Speaker 00:
He submitted a nurse practitioner's report that didn't discuss the service treatment records.

[00:15:01] Speaker 00:
He could have submitted different reports from different physicians or medical experts that gave the board the sort of link, or gave the veterans' board the link between the disability and the service treatment records, but he didn't do so.

[00:15:14] Speaker 00:
Or it can take the form of treatises.

[00:15:16] Speaker 00:
But again, on appeal before this court and before the veterans court, there was just no medical evidence.

[00:15:22] Speaker 00:
So what appellate courts certainly are able to do is recognize when there's no evidence

[00:15:28] Speaker 00:
to support an argument and declined to remand, because there would be nothing to direct the board to look at in terms of establishing the causal link, which is what Mr. Simpson ultimately needs to establish.

[00:15:42] Speaker 00:
And as Judge Weick, your questions pointed out, the VA and the board had evidence before it that the Veterans Court decided was adequate in the form of a VA examiner's report that said there's no link.

[00:15:58] Speaker 00:
And that's what the VA relied on, that's what the board relied on, and there's no, you know, that the adequacy, you know, contrary to some of Mr. Stinson's assertions here, the adequacy isn't at issue.

[00:16:12] Speaker 00:
So there's no real question about whether the VA should have gotten a more specialized opinion or a more detailed opinion, or there should have been more of a response in the VA examiner's report to the private examiner, because that was adjudicated by the Veterans Court.

[00:16:28] Speaker 04:
Can you show me where in the record the VA examiner considered the 1960s service symptoms?

[00:16:38] Speaker 00:
So at Appendix 107, the VA examiner says she checked.

[00:16:45] Speaker 00:
So there's a box that

[00:16:48] Speaker 00:
a heading that says evidence review and next to VAE folder is there's an X. So my understanding from VA is the service treatment records were added to that folder I think in 2014.

[00:17:00] Speaker 00:
So the examiner would have, based on the record, the examiner would have reviewed the service treatment records.

[00:17:06] Speaker 00:
uh... ultimately though that issue goes to the house is the ship this issue of that uh... examiner considered the sixties service uh... symptoms what what it shows is that she is part of the evidence review she looked at what was in the v eight e folder uh... and my understanding based on what you're looking at

[00:17:25] Speaker 04:
The answer is no, right?

[00:17:27] Speaker 00:
It shows that she looked at what was in there and I'm representing to you, this is not in the record, but I'm representing to you based on conversations with VA.

[00:17:34] Speaker 04:
Does this show that the VA examiner considered the six fees service symptoms?

[00:17:39] Speaker 00:
It showed that she reviewed the records.

[00:17:42] Speaker 00:
It supports the view that she reviewed the record.

[00:17:45] Speaker 00:
It doesn't show

[00:17:47] Speaker 00:
anything beyond that.

[00:17:49] Speaker 00:
But again, that ultimately goes to the adequacy of her or the VA examiner's report, which is not before this court.

[00:17:56] Speaker 00:
It goes to what?

[00:17:57] Speaker 00:
The adequacy of the VA examiner's report.

[00:18:01] Speaker 00:
And that was adjudicated by the Veterans Court.

[00:18:04] Speaker 00:
And it's not, it's a factual issue or application is a lot of fact, and it's not before this court.

[00:18:14] Speaker 03:
We consider a harmless error here.

[00:18:17] Speaker 03:
Can we make a harmless error determination if we think, notwithstanding your arguments, that there was some fact finding made by the Veterans Court?

[00:18:26] Speaker 00:
Yes.

[00:18:27] Speaker 00:
So there was, again, there was an adequate exam done by the VA medical examiner that opined on this causation issue, and it was credited by the board.

[00:18:41] Speaker 00:
The board found it persuasive, and the Veterans Court affirmed.

[00:18:45] Speaker 00:
So that would be a basis for a harmless air determination.

[00:18:47] Speaker 00:
Yes, Your Honor.

[00:18:50] Speaker 03:
Where is, I think, one of the arguments on the other side is your

[00:18:54] Speaker 03:
what you just said is not really specifically laid out with care by the Veterans Court.

[00:18:59] Speaker 03:
Do you agree or disagree with that?

[00:19:02] Speaker 00:
Well, the Veterans Court is reacting to the arguments as they're presented by

[00:19:12] Speaker 00:
by Mr. Stinson, and it affirms the adequacy of the VA examiner's report and rejects the assertion that the board's reasons and bases were insufficient.

[00:19:26] Speaker 00:
So in that sense, it logically follows from that what I just said, which is that the boards of decision was based upon an adequate medical determination on causation

[00:19:39] Speaker 00:
and the board had sufficient basis to come to that conclusion.

[00:19:44] Speaker 03:
They don't, though, the Veterans Court ever clearly tell us absent our own fact finding or our own assessment of what's in or not in the record, we could rely simply on the VA exam and that would be sufficient to uphold the board.

[00:20:04] Speaker 03:
They're not that clear about that, are they?

[00:20:07] Speaker 00:
So the conclusion is the board did not clearly err in relying on the 2019 VA examination, which I think is the same point, but maybe is not quite as clearly expressed as Your Honor just expressed it, Judge Stark.

[00:20:21] Speaker 00:
And then the Veterans Court goes on to consider the different arguments raised by Mr. Stinson.

[00:20:31] Speaker 00:
Ultimately, the conclusion is he hasn't borne his burden of showing that the record reasonably raised an issue that he didn't himself directly address.

[00:20:41] Speaker 00:
Again, that conclusion is supported by the fact that there's just no evidence in the record establishing the causation link between the service treatment records and the

[00:20:53] Speaker 00:
and the disability, and I think that would go to a harmless error determination as well.

[00:20:59] Speaker 00:
If this went back, there would be nothing to close the gap between the service treatment records and the ultimate issue here.

[00:21:09] Speaker 03:
Well, why, and you may have already said this, so forgive me if you did, why if it went back would there not be the obligation

[00:21:16] Speaker 03:
to supplement the record to assist the veteran to either clarify the 2016 opinion or get a new medical opinion or both?

[00:21:26] Speaker 00:
Well, so there wouldn't be an obligation, I think Your Honor is asking about the duty to clarify points that Mr. Sinclair raised arguments about.

[00:21:36] Speaker 00:
So the first point on the duty to clarify

[00:21:38] Speaker 00:
The Veterans Court's applying its own precedent, Savage and Carter, and the upshot of that precedent is... I think you're misconceiving the question.

[00:21:51] Speaker 06:
Judge Stark can correct me if I'm wrong.

[00:21:53] Speaker 06:
I think what he was asking you is not in relation to the nurse practitioner report, but with respect to the

[00:22:05] Speaker 06:
harmless error issue as to whether the CAVC should have recognized there was a new argument here and sent it back to have some development, new evidence about the significance of the rash and other symptoms.

[00:22:23] Speaker 00:
So our position is in the absence of the causal link, evidence establishing that causal link, there would be no reason to send it back or there would be no obligation to send it back.

[00:22:37] Speaker 00:
Ultimately, it is not the case that any time a claimant raises a new argument before the Veterans Court that there's an automatic remand.

[00:22:45] Speaker 00:
That would slow things down greatly.

[00:22:47] Speaker 00:
And I think the Veterans Court was appropriately looked at whether the record reasonably raised this issue.

[00:22:54] Speaker 00:
So the answer would be that for system-wide reasons,

[00:22:59] Speaker 00:
it is logical to have this rule.

[00:23:02] Speaker 00:
And by the way, this rule is an alternative to a strict issue exhaustion rule, which would be another alternative and would be worse for claimants.

[00:23:09] Speaker 00:
This gives claimants an ability to argue to the Veterans Court that there was something reasonably raised by the record such that a remand is appropriate.

[00:23:17] Speaker 00:
So it balances those different considerations.

[00:23:22] Speaker 06:
I guess what I hear

[00:23:23] Speaker 06:
doing is providing rationales that the Veterans Court could have used to justify what it did, but which it didn't, in fact, rely on.

[00:23:33] Speaker 06:
It sort of rassed or straws, well, we're going to deal with this problem by saying that the rash was on the shoulder or back or whatever it was, and that we don't have to worry about it because it wasn't in the right place.

[00:23:51] Speaker 00:
The first, I think the reason, the basis for why the Veterans Court wrote its opinion the way it did is it becomes clearer when you review the briefing before the Veterans Court and see how the issues were framed for the Veterans Court.

[00:24:06] Speaker 00:
So that's the first point.

[00:24:07] Speaker 00:
The second point is it does cite the Bankhead case a couple different times the Veterans Court does.

[00:24:13] Speaker 00:
And I believe that's a case that's talking about this court's jurisprudence on TDIU and issues reasonably raised by the record.

[00:24:23] Speaker 00:
So my understanding is the Veterans Court is really alluding to these same sorts of issues and considerations when it cites Bankhead and when it imposes this burden on Mr. Stinson to affirmatively raise

[00:24:37] Speaker 00:
to raise the evidence he thinks the board should have considered, explain why it's reasonably raised by the record, and put those arguments before the Veterans Court so the Veterans Court actually has that information in front of it and can make an informed decision to say, okay, you didn't raise this before the board, but the board nevertheless aired by not considering it.

[00:24:56] Speaker 03:
I think we might have a case that says we can't do harmless error analysis if it would require fact-finding or application of law to fact.

[00:25:06] Speaker 03:
If in fact that is our law, how could we do harmless error analysis here?

[00:25:16] Speaker 00:
I think with the court, the basis for a homeless error analysis would be a recognition that there's no connecting evidence between the disability and the service treatment records.

[00:25:29] Speaker 00:
And that would be analogous to what a trial court would do in summary judgment, granting summary judgment, because there's no evidence in the record to support a specific point.

[00:25:36] Speaker 00:
So we would not understand that to be a type of fact-finding that the court's not allowed to do on appeal.

[00:25:41] Speaker 00:
So that we think the court can do.

[00:25:44] Speaker 00:
Alternatively, if the court concludes it's undebatable and agrees with our position on that, then that would be another basis.

[00:25:53] Speaker 00:
OK.

[00:25:53] Speaker 00:
Anything further?

[00:25:55] Speaker 00:
No.

[00:25:55] Speaker 00:
Thank you, Your Honors.

[00:25:56] Speaker 00:
If there are no further questions, we ask the court to affirm the Veterans Court's decision.

[00:26:05] Speaker 01:
Thank you.

[00:26:05] Speaker 01:
No one

[00:26:06] Speaker 01:
ever explicitly addressed his inservice conditions.

[00:26:11] Speaker 01:
The examiner didn't, the board didn't, no one talked about his rash, no one talked about the lesion that was bleeding out of his nose on a recurring basis.

[00:26:22] Speaker 01:
And I want to just note that in Tadlock,

[00:26:26] Speaker 01:
It was, one of the findings is almost identical in the logical structure of the finding in Tadlock is almost identical to the finding that the nose bleeds, there's no evidence in the record about nose bleeds that show carcinogen exposure.

[00:26:43] Speaker 01:
And in Tadlock, they did not find harmless error.

[00:26:48] Speaker 01:
But I want to talk a little bit about the causation element, the causation

[00:26:53] Speaker 01:
There's a couple of ways.

[00:26:54] Speaker 01:
If you look at appendix at 615, what you can see is this is a note where one of his treating physicians at Duke begins talking about the firm cystic mass on his upper back in 2002.

[00:27:08] Speaker 01:
And by making that mass relevant, it shows that this skin condition, prior skin conditions, can be relevant.

[00:27:17] Speaker 01:
Because if you take that and you follow the logic back to 1960,

[00:27:22] Speaker 01:
in 1966 when he's having these rashes and these lesions, those two by extension are also relevant.

[00:27:31] Speaker 01:
Another way that we can establish a relevance and causation is through the presumptions in the regulations.

[00:27:38] Speaker 01:
Prostate cancer is presumed to be linked to radiological carcinogenic exposure.

[00:27:46] Speaker 01:
He had prostate cancer in 2004.

[00:27:49] Speaker 01:
Leukopenia, which he also had in earlier days, and thrombocytopenia.

[00:27:56] Speaker 01:
These are also linked to cancer.

[00:27:59] Speaker 01:
And it makes sense.

[00:28:01] Speaker 01:
But those arguments aren't made in your brief here, right?

[00:28:06] Speaker 01:
They are.

[00:28:06] Speaker 01:
I cite to the... Prostate cancer?

[00:28:09] Speaker 01:
I cite to the regulations.

[00:28:12] Speaker 01:
I cite to the specific regulations.

[00:28:14] Speaker 01:
Where's the argument?

[00:28:15] Speaker 01:
I think it's, if you look in the table to my brief, it's cited to 3.156 in the regulations.

[00:28:23] Speaker 01:
And those regulations relate the case so that there is a chain of causation.

[00:28:29] Speaker 04:
So it seems that the Veterans Court made a ruling on considering the proximity of the injuries to each other.

[00:28:40] Speaker 04:
Right.

[00:28:41] Speaker 04:
Right?

[00:28:42] Speaker 04:
And, and, um, he decided that, that it wasn't relevant, that that was not relevant.

[00:28:50] Speaker 04:
Do you consider that to be fact-finding?

[00:28:52] Speaker 04:
And if so, can it lead to harm to the senator?

[00:28:57] Speaker 01:
I do, because service connection, it goes straight to service connection.

[00:29:02] Speaker 01:
And when you disconnect the placement, because implied the veterans court thought that that was important, the placement of the rash.

[00:29:10] Speaker 01:
and that if it was in a different place than where the rash, excuse me, where the carcinogenic, where the cancerous lesion was, it's implied in that that that's an important fact.

[00:29:20] Speaker 01:
And that fact was used to uphold the exam as adequate.

[00:29:25] Speaker 01:
And so it implies that if you connect them by saying that, well, if we follow what his doctors say and we see that it is in the same place as his cancerous lesion, it's also in the same place as his 2002 mass,

[00:29:38] Speaker 01:
And it's also in the same place as his rash.

[00:29:41] Speaker 01:
It's been important to everyone, from the medical experts, the doctors, who tee up their analysis of the cancerous lesion by mentioning the firm cystic mass from a decade earlier.

[00:29:52] Speaker 01:
And also, it's implied in the Veterans Court decision that it's important to them.

[00:29:56] Speaker 05:
Could you show me where, I'm not seeing where you argued about the prostate.

[00:30:02] Speaker 01:
Yeah, so in the tables.

[00:30:07] Speaker 04:
Your blue brief?

[00:30:12] Speaker 01:
It's in the opening brief.

[00:30:14] Speaker 01:
There's a reference to this.

[00:30:16] Speaker 03:
3.159.

[00:30:17] Speaker 03:
Is that what you meant?

[00:30:18] Speaker 03:
Yeah, that's it.

[00:30:20] Speaker 01:
Page 20?

[00:30:21] Speaker 04:
That's it.

[00:30:22] Speaker 01:
No, no, no.

[00:30:22] Speaker 01:
I don't think it's 3.159.

[00:30:24] Speaker 03:
Is it not?

[00:30:24] Speaker 03:
OK.

[00:30:24] Speaker 01:
It's 3.102.

[00:30:28] Speaker 01:
It could be 3.102.

[00:30:31] Speaker 01:
But I definitely reference it in the brief.

[00:30:37] Speaker 03:
3.102 is in your gray brief at page two.

[00:30:42] Speaker 03:
Is that where you mean to turn off?

[00:30:44] Speaker 01:
I looked at this yesterday.

[00:30:45] Speaker 01:
And I looked up, I found the regulation in my brief in order to reference today.

[00:30:52] Speaker 01:
And it's in here.

[00:30:54] Speaker 03:
We'll look at it.

[00:30:55] Speaker 03:
I'll just ask one last question.

[00:30:57] Speaker 03:
You asked us to overturn Carter.

[00:31:00] Speaker 03:
You don't challenge Savage.

[00:31:01] Speaker 03:
Is that right?

[00:31:02] Speaker 01:
Well, what the Veterans Court said is that the Veterans Court said that building on Savage, or it narrowed Savage,

[00:31:12] Speaker 01:
In Carter?

[00:31:13] Speaker 01:
Yeah, yeah.

[00:31:14] Speaker 01:
So Carter narrowed Savage.

[00:31:16] Speaker 03:
Right.

[00:31:16] Speaker 03:
So you ask us to overturn Carter, but you're content with Savage.

[00:31:19] Speaker 01:
I'm not.

[00:31:20] Speaker 01:
I'm not.

[00:31:21] Speaker 01:
What I think, if I had any weight in this, I would have the court turn it into a factor test rather than a bright line rule.

[00:31:30] Speaker 03:
Is there any request in your briefing to overturn Savage or a challenge to the application of Savage?

[00:31:37] Speaker 01:
There is.

[00:31:38] Speaker 01:
There is.

[00:31:39] Speaker 01:
Not to Savage itself, but to Carter.

[00:31:41] Speaker 01:
I'm basically Carter.

[00:31:43] Speaker 03:
My problem is, your argument is Carter narrow Savage.

[00:31:48] Speaker 03:
You clearly put in front of us we should overturn Carter.

[00:31:52] Speaker 03:
But I read that to mean you're fine with us supplying Savage.

[00:31:57] Speaker 03:
But now you're telling me that was not your intent.

[00:31:59] Speaker 01:
I would say that I would like you to overturn Savage.

[00:32:04] Speaker 02:
But we didn't hear that in the briefing, right?

[00:32:07] Speaker 02:
I'm not sure.

[00:32:08] Speaker 04:
In relation to the question that

[00:32:11] Speaker 04:
I think it may be page two of the grade brief that speaks as to prostate cancer.

[00:32:19] Speaker 01:
Yes.

[00:32:20] Speaker 04:
All right.

[00:32:21] Speaker 04:
Thank you.

[00:32:22] Speaker 04:
Thank both counsels.

[00:32:22] Speaker 06:
The case is submitted.

[00:32:24] Speaker 06:
That concludes our session.