[00:00:00] Speaker 01:
Our next case for argument is 23-1972 Baker versus McDonough.

[00:00:08] Speaker 05:
Good morning, Your Honors.

[00:00:09] Speaker 05:
May I please support?

[00:00:10] Speaker 05:
My name is Albert Bacharach.

[00:00:12] Speaker 05:
I represent the veteran appellant, Ms.

[00:00:15] Speaker 05:
Baker.

[00:00:19] Speaker 05:
This is probably one of your favorite kinds of cases.

[00:00:23] Speaker 05:
Ms.

[00:00:23] Speaker 05:
Baker is alleging that there was clear and unmistakable error back in 1992.

[00:00:29] Speaker 05:
when the Veterans Administration failed to consider any of the actual findings of the U.S.

[00:00:38] Speaker 05:
Air Force and on their own decided that the Veteran did not suffer from multiple sclerosis.

[00:00:48] Speaker 05:
Factually, the veteran was serving in the U.S.

[00:00:51] Speaker 05:
Air Force and developed a number of signs and symptoms.

[00:00:55] Speaker 05:
The U.S.

[00:00:56] Speaker 05:
Air Force, through a series of medical tests, decided back in December of 1991 that the veteran suffered from multiple sclerosis and they, on the

[00:01:13] Speaker 05:
sheet that they used for deciding on medical retirement.

[00:01:18] Speaker 05:
They also assigned the exact number for multiple sclerosis that the Veterans Administration uses for diagnosis of multiple sclerosis.

[00:01:27] Speaker 05:
So she was medically retired and then filed almost immediately for a number of service-connected disabilities

[00:01:40] Speaker 05:
including multiple sclerosis.

[00:01:43] Speaker 05:
In the September 1992 rating decision, there's clear and unmistakable error because when you read through the entire decision, there is no discussion whatsoever of the Air Force's findings that the veteran suffered from multiple sclerosis, or as the Air Force said, probable multiple sclerosis.

[00:02:10] Speaker 05:
What happened was first, the Veterans Administration had a doctor examine the veteran.

[00:02:17] Speaker 05:
That doctor determined that he couldn't say she had multiple sclerosis.

[00:02:24] Speaker 05:
Internally then, there was a document from the Veterans Administration that said you have to actually read her C file.

[00:02:31] Speaker 05:
You have to read the military records that are included as part of the veterans record before you make a determination.

[00:02:39] Speaker 05:
So that's why there's a second opinion with regard to the multiple sclerosis and that second opinion completely misstates what the findings were with regard to the Air Force and never mentions that the Air Force had found that the veteran suffered from a probable multiple sclerosis.

[00:03:04] Speaker 05:
So

[00:03:07] Speaker 05:
in the tiny world of QRR, all the tiny things that could actually be QRR, one of them is the failure to actually weigh all of the evidence, that you don't consider all of the evidence, you don't weigh all the evidence, and that's what happens in this case.

[00:03:27] Speaker 05:
That makes the decision from the board finding that it's not QRR arbitrary and

[00:03:35] Speaker 05:
because the regulation clearly says that

[00:03:40] Speaker 04:
uh... cures created by the failure to consider all of uh... but the other what the board made a fact-finding did it not that uh... all row in nineteen ninety-two didn't have all of the facts in front of it when it made its ratings decision in nineteen ninety-two but the reading decision has to tell you the reasons and basis of the decision and i guess what i'm wondering is is i'm sure you well know

[00:04:07] Speaker 04:
The scope of our jurisdiction on these veterans benefits appeals is extremely limited.

[00:04:14] Speaker 04:
You already had one appeals court review your case at the Court of Appeals for Veterans Claims.

[00:04:20] Speaker 04:
So we're pretty much confined.

[00:04:23] Speaker 04:
here to consider legal errors and I've been waiting to hear for From you today.

[00:04:31] Speaker 04:
What is the legal error that was made that?

[00:04:35] Speaker 05:
Demands us to either To find Q under these circumstances Arguing it as a legal error you say that the

[00:04:52] Speaker 05:
statutes under Title 38 and the regulations under 38 CFR require that everything be considered.

[00:05:02] Speaker 05:
And a statement that everything was considered is not proof that anything was considered.

[00:05:06] Speaker 05:
So this court and the court below should have gone back to the 1992 decision.

[00:05:13] Speaker 05:
It runs through about four pages.

[00:05:16] Speaker 05:
It's in the record on appeal from 5242 to 5246.

[00:05:21] Speaker 05:
nowhere in the decision, the reasons and basis for the decision, do they discuss that the Air Force made a finding that the veteran suffers from multiple sclerosis.

[00:05:36] Speaker 03:
And that sounds like clear and unmistakable error, but how is it a legal error?

[00:05:43] Speaker 05:
Well, it's a misapplication of the regulation.

[00:05:45] Speaker 05:
The regulation says you have to do A, B, C, and they skipped B.

[00:05:51] Speaker 05:
They went from A to C and said, there's no QR.

[00:05:54] Speaker 05:
I understand that the VA and for that matter the Veterans Court, nobody likes QR cases because the result of QR cases is like having a time machine.

[00:06:06] Speaker 05:
We go all the way back to 1992 and we redo it as if we're back in 1992 and then everything goes forward in time.

[00:06:14] Speaker 05:
It's like one of those movies with the alternate timelines.

[00:06:17] Speaker 05:
And so it greatly disturbs everything that has gone from 1992 until, actually, I secured multi-disposal benefits for around 2014.

[00:06:29] Speaker 05:
But it has irritated me since 2014 that the veteran has not received what the veteran's entitled to.

[00:06:42] Speaker 05:
And so the legal error is the failure to correctly interpret and apply both the statutory rules with regard to Q and the regulatory rules with regard to Q. And the regulatory rules and the decisions of, I believe, this court as well, the decision has to show

[00:07:05] Speaker 05:
the basis of the decision.

[00:07:08] Speaker 05:
You have to set out what the facts and findings are for the decision.

[00:07:17] Speaker 05:
The entire decision says, no evidence, clinically or physically, to substantiate a diagnosis of multiple sclerosis.

[00:07:26] Speaker 05:
That's not an analysis.

[00:07:28] Speaker 04:
What page are you on?

[00:07:29] Speaker 05:
That would be 5242 of the record.

[00:07:33] Speaker 05:
I'm sorry.

[00:07:35] Speaker 05:
I'm sorry.

[00:07:35] Speaker 05:
5242.

[00:07:35] Speaker 05:
5242?

[00:07:40] Speaker 05:
record before the agency.

[00:07:42] Speaker 01:
You know what page of your appendix that might correspond to?

[00:07:47] Speaker 05:
Unfortunately, it's appendix 35, but I left out the next two pages as well.

[00:07:52] Speaker 05:
So if all you have are the blue and gray briefs, you won't find this.

[00:08:02] Speaker 04:
I happen to have a copy of the rating decision.

[00:08:04] Speaker 04:
What page of the rating decision are you from?

[00:08:07] Speaker 05:
We just started 5242.

[00:08:09] Speaker 04:
I mean, this is a five-page document.

[00:08:15] Speaker 04:
It is.

[00:08:16] Speaker 05:
And the only mention of multiple sclerosis is on page 5242.

[00:08:25] Speaker 04:
And then... This is a five-page document, sir.

[00:08:27] Speaker 04:
Could you just tell me what page of the five-page document you're reading from?

[00:08:31] Speaker 04:
Oh, I'm sorry.

[00:08:32] Speaker 04:
I'm sorry.

[00:08:33] Speaker 05:
First page.

[00:08:34] Speaker 05:
First page.

[00:08:35] Speaker 05:
5242, first paragraph, last line.

[00:08:40] Speaker 05:
This is the only mention of multiple spherosis in the entire decision.

[00:08:56] Speaker 04:
Are you talking about examiner found no evidence clinically or physically to substantiate that DX has multiple sclerosis?

[00:09:12] Speaker 04:
Is that your sentence?

[00:09:16] Speaker 05:
No, but that's also not an analysis.

[00:09:22] Speaker 05:
The examination by Dr. Denson, it's always hard to remember what the court does all the time.

[00:09:34] Speaker 05:
I do this all the time.

[00:09:38] Speaker 05:
In the concept of compensation and pension exams, back in 1992, VA doctors did the examinations of the veterans.

[00:09:50] Speaker 05:
So what you're reading is a statement

[00:09:53] Speaker 05:
what the VA doctor found and said, which is exactly what he found and said, and which I'm arguing, is he said, I can't say she has multiple spores.

[00:10:05] Speaker 05:
That's the same doctor who they said, well, go back and look at her in service records.

[00:10:10] Speaker 05:
And then in his second decision that's not cited in here, he miscites to the Air Force so that even if you

[00:10:22] Speaker 05:
were being generous.

[00:10:24] Speaker 05:
The decision is incomplete and unfair to the veteran because he only looked to the imaging of the veteran's brain, which is one of the parts of the process of the Air Force deciding that she had multiple sclerosis.

[00:10:47] Speaker 05:
but it wasn't the reason entirely that they decided it and he forgot to put in fact that the Air Force says she has multiple sclerosis.

[00:10:55] Speaker 05:
Now, technically they said probable multiple sclerosis but probable for our purposes is she's got multiple sclerosis because as we point out in the argument

[00:11:11] Speaker 05:
if you're weighing evidence, and one person says, I can't say she has multiple sclerosis, and the Air Force doctors say, she probably does, probably does, so far one outweighs, I can't say.

[00:11:27] Speaker 04:
when he or she said, probable MS, also said, but did not meet all criteria for MS.

[00:11:34] Speaker 04:
That's why it's probable.

[00:11:36] Speaker 04:
Right.

[00:11:36] Speaker 04:
So, I guess the point is, again, where we are right now is deep in the heart of fact-finding.

[00:11:45] Speaker 04:
We really are, and the board looked at this and said,

[00:11:49] Speaker 04:
Well, they've read the record, and they concluded that reasonable minds differed as to whether she, in fact, suffered from multiple sclerosis.

[00:11:59] Speaker 04:
And then the Veterans Court says, we're not going to find Q because, like the board, we agree that the diagnosis was debatable at the time, and there was diagnostic uncertainty.

[00:12:12] Speaker 04:
And so now we're here, and I don't know

[00:12:16] Speaker 04:
I haven't heard yet a basis for how we can, within our jurisdiction, that we can do something here.

[00:12:27] Speaker 05:
Well, I think, first of all, reasonable minds cannot disagree as to whether or not she has multiple sclerosis.

[00:12:37] Speaker 05:
So that part of the argument goes to the case law that says that not only do you have to show that there's an error, but you have to show that the error is outcome determinative.

[00:12:51] Speaker 05:
And that without the error, you would have gotten a different result.

[00:12:55] Speaker 05:
So the failure to do something at the inception by the VA.

[00:13:03] Speaker 01:
Can you real quick just tell me, what is the difference for the veteran here between having the effective date be 1992 when she originally filed her claim versus, I don't even know what year.

[00:13:16] Speaker 01:
It was ultimately 2012.

[00:13:18] Speaker 01:
What was it?

[00:13:19] Speaker 01:
When was it ultimately?

[00:13:21] Speaker 05:
Ultimately, I believe it was 2014 or 2015.

[00:13:25] Speaker 05:
Effective date is 2009?

[00:13:28] Speaker 04:
Yeah, back to 2009.

[00:13:29] Speaker 01:
So what's the difference for the veteran?

[00:13:31] Speaker 01:
Let me just quantify it for me.

[00:13:32] Speaker 01:
What's the difference for the veteran between an effective date of 1992 and an effective date of 2009?

[00:13:37] Speaker 05:
I want to know.

[00:13:39] Speaker 05:
Well, if the veteran was service-connected at 30% in 1992, a number of things would probably have happened.

[00:13:45] Speaker 05:
First of all, she would be arguing as she got sicker and sicker with multiple sclerosis that the signs and symptoms of multiple sclerosis entitled her to an entire

[00:13:59] Speaker 05:
excuse me, target English system, higher entitlement rate.

[00:14:03] Speaker 05:
As you know, the two issues for a veteran are, one, to establish that the medical issue has a nexus with or is linked to their service connection.

[00:14:18] Speaker 05:
And then there's the whole scale of

[00:14:27] Speaker 05:
percentages with regards to how the VA rates that particular impairment.

[00:14:33] Speaker 05:
So you could be service-connected, and she is in 1992, if you look at that decision.

[00:14:38] Speaker 05:
She's service-connected for several wishes at 0%.

[00:14:41] Speaker 05:
So what that means is we agree that you're service-connected, but we're not paying you for it.

[00:14:47] Speaker 05:
Because the percentages with regard to service connection actually have to do with how much the VA believes that the particular medical issue will interfere with your ability to work.

[00:14:58] Speaker 01:
Did you argue before either the board or the CABC anything about tie goes to the veteran kind of thing?

[00:15:06] Speaker 01:
Did you make that argument?

[00:15:07] Speaker 05:
I'm sorry?

[00:15:08] Speaker 01:
About how tie goes to the veteran whenever there is a problem?

[00:15:12] Speaker 05:
I did not.

[00:15:12] Speaker 05:
I mean, that's a true statement.

[00:15:16] Speaker 05:
as we all know, and when the evidence is equal post, the veteran wins.

[00:15:22] Speaker 05:
But in order for the veteran to establish true error here, we have to establish that, I believe we have to establish, that the medical evidence available to the decider in 1992 was not completely

[00:15:41] Speaker 05:
discussed by or evaluated by.

[00:15:43] Speaker 01:
Okay, I think we have your argument.

[00:15:45] Speaker 01:
You're all out of time, including rebuttal.

[00:15:46] Speaker 01:
I'll restore some rebuttal, but we should go ahead and hear from the government now.

[00:15:50] Speaker 05:
Thank you.

[00:16:12] Speaker 00:
Miss Baker's appeal challenging the Veterans Court's decision should be dismissed because it's premised upon challenges to the court's factual findings.

[00:16:21] Speaker 00:
If the court reaches the merits, it should affirm.

[00:16:25] Speaker 01:
Would it be a fact finding if his argument is couched in terms of a failure to consider all relevant evidence?

[00:16:32] Speaker 01:
Is that a fact finding or an application of a lot of fact, or is that

[00:16:36] Speaker 00:
If the argument is that the RO and 92 failed to consider the relevant evidence, that would probably be an application of the MS diagnostic code.

[00:16:48] Speaker 00:
So that would be beyond the scope of the court's jurisdiction review as well.

[00:16:52] Speaker 00:
Ultimately, though, this is a Q case, so the error would also have to be outcome determinative.

[00:16:56] Speaker 00:
So that presents another hurdle on top of that.

[00:17:00] Speaker 00:
The board did consider this point.

[00:17:02] Speaker 00:
It said the evidence was before the RO.

[00:17:05] Speaker 00:
I think it's important to note that if you look at appendix 31 and 32 and appendix 34, which are Dr. Denson's medical examination report, he does note the underlying Air Force diagnosis or the analysis done by the Air Force

[00:17:28] Speaker 01:
uh... medical center and he does know that the uh... you know there was there's some positive uh... evidence before the uh... the one thing that bothered me about this that i was trying to wrap my head around is what you're pointing to it on page thirty one of the appendix is what he actually notes is that her c-file he didn't have her c-file so he couldn't actually look at stuff himself but he notes possible multiple sclerosis

[00:17:57] Speaker 01:
Is there a difference between possible MS and probable MS?

[00:18:02] Speaker 01:
What does the word probable mean to you?

[00:18:04] Speaker 01:
As a lawyer, what does the word probable mean?

[00:18:07] Speaker 00:
I'm sorry.

[00:18:07] Speaker 04:
I just want to make sure I see what you're referring to.

[00:18:09] Speaker 04:
Possible MS.

[00:18:10] Speaker 04:
It's in the middle of the page on 31, in the middle background.

[00:18:14] Speaker 00:
Oh, thank you.

[00:18:21] Speaker 00:
OK.

[00:18:21] Speaker 01:
So what does the word probable mean?

[00:18:24] Speaker 01:
But do we both agree that the prior

[00:18:27] Speaker 01:
diagnosis to the extent there was one was probable multiple sclerosis.

[00:18:32] Speaker 00:
So the physical examination report uses the phrase probable MS.

[00:18:39] Speaker 00:
That's true.

[00:18:39] Speaker 00:
I agree with that.

[00:18:40] Speaker 01:
Okay.

[00:18:40] Speaker 01:
So when he says the prior diagnosis was of possible MS, is he wrong?

[00:18:50] Speaker 01:
Is there a difference between the word possible and probable?

[00:18:53] Speaker 01:
You're a lawyer.

[00:18:54] Speaker 01:
I would think that your answer's got to be yes, right?

[00:18:56] Speaker 01:
Probable cause, probable.

[00:18:58] Speaker 01:
We use the word probable in a lot of circumstances in the law, and I think it has a pretty precise meaning.

[00:19:03] Speaker 01:
Plus, even just as a statistician, it would have a precise meaning.

[00:19:06] Speaker 01:
What does the word probable mean to you?

[00:19:08] Speaker 00:
So I want to answer specifically to this context.

[00:19:11] Speaker 01:
First, I want you to... What does the word probable mean to you?

[00:19:13] Speaker 00:
Probable means more likely than not.

[00:19:15] Speaker 00:
Okay.

[00:19:16] Speaker 00:
Specifically in this context, I think one reasonable reading of the word probable is used by Dr. Velasquez at Appendix 26.

[00:19:26] Speaker 00:
Appendix 26 is the USAF

[00:19:34] Speaker 00:
narrative report.

[00:19:47] Speaker 00:
It was felt that the patient most likely represented multiple sclerosis, but it did not meet all the criteria.

[00:19:53] Speaker 00:
Diagnosis at this time is probable multiple sclerosis.

[00:19:56] Speaker 00:
I understand that to mean Ms.

[00:19:59] Speaker 00:
Baker does not have MS right now, but she has something that probably is going to turn into MS.

[00:20:04] Speaker 00:
I think that's consistent with not all the criteria are met at this point.

[00:20:09] Speaker 01:
Okay, wait.

[00:20:09] Speaker 01:
Hold on a second.

[00:20:10] Speaker 01:
We think not all of the criteria are met.

[00:20:12] Speaker 01:
I mean, do you understand that DSM criteria are a sliding scale and that you don't have to meet every single one of them to have a diagnosis of something?

[00:20:19] Speaker 00:
I think all the criteria met in turn could meet different things because there are... But are you a doctor?

[00:20:23] Speaker 00:
I'm not.

[00:20:24] Speaker 01:
Am I a doctor?

[00:20:25] Speaker 00:
We are not.

[00:20:25] Speaker 00:
Neither of us are doctors.

[00:20:26] Speaker 00:
Neither of us are doctors.

[00:20:27] Speaker 00:
We're not doctors.

[00:20:28] Speaker 01:
But so probable has a clear and unmistakable meaning in the English language.

[00:20:34] Speaker 01:
And he said probable.

[00:20:37] Speaker 01:
So didn't they err as a factual matter?

[00:20:41] Speaker 01:
I will hear you out on the idea that I have no

[00:20:45] Speaker 01:
ability to look at facts.

[00:20:47] Speaker 01:
But doesn't it seem pretty clear that there's a problem when the person whose statement you're relying on says, oh, I didn't actually have the underlying files that that other doctor looked at, when he said possibly she has MS, when in fact the other doctor looked at the underlying files and says she probably has MS?

[00:21:05] Speaker 01:
Those feel like really different situations to me.

[00:21:08] Speaker 01:
And when the tie goes to the veteran, when we're supposed to, when we live in a universe,

[00:21:12] Speaker 01:
where if all things are equal in equipoise, the veteran should prevail.

[00:21:17] Speaker 01:
Doesn't this just feel flat out wrong to you?

[00:21:21] Speaker 01:
Don't even tell me I don't have jurisdiction, because I know that.

[00:21:24] Speaker 01:
This is more a matter of, doesn't this just feel flat out wrong?

[00:21:28] Speaker 00:
So your Honor's question, Chief Judge Moore, your question started with the

[00:21:33] Speaker 00:
possible MS quote on appendix 31.

[00:21:36] Speaker 00:
So after that, Dr. Denson then goes back to the file and looks at it again.

[00:21:43] Speaker 01:
And when he looks at it again, does he actually say probable multiple?

[00:21:48] Speaker 01:
No, he doesn't.

[00:21:48] Speaker 00:
He doesn't.

[00:21:49] Speaker 01:
He never gets it right, does he?

[00:21:51] Speaker 00:
He doesn't specifically say probable multiple sclerosis.

[00:21:54] Speaker 00:
What he does do is look at the actual findings.

[00:21:56] Speaker 00:
And he notes one positive point, positive in the sense of likely to show MS.

[00:22:02] Speaker 00:
Number one, the multiple bright areas.

[00:22:05] Speaker 00:
And I'm not a doctor.

[00:22:05] Speaker 00:
I like the court in trying to come at this from a late perspective.

[00:22:10] Speaker 00:
I have to.

[00:22:12] Speaker 00:
My understanding is two and three would be relevant to showing she doesn't have MS at the time.

[00:22:17] Speaker 00:
So this is very much an issue where there's evidence cutting in different directions.

[00:22:22] Speaker 00:
Chief, there's more.

[00:22:24] Speaker 00:
Your question about the tie going to the runner.

[00:22:28] Speaker 00:
This is a cue context, so it has to be undebatable that the evidence was in approximate balance in 1992.

[00:22:35] Speaker 00:
That's the question.

[00:22:36] Speaker 00:
It's not whether the evidence actually was in approximate balance, it's whether it's undebatable that it was.

[00:22:41] Speaker 01:
And in light of the board- Well, actually, I think you're right about that, but the problem is the word probable actually makes it sound like the evidence wasn't in approximate balance.

[00:22:50] Speaker 01:
It makes it sound like the evidence actually favored the veteran.

[00:22:52] Speaker 01:
I'm giving you the medicine of doubt by saying that to the boys.

[00:22:54] Speaker 01:
I think, and by the way, just to be clear, didn't this doctor here on page 26, isn't he either a neurologist, a military neurologist, or didn't he consult with a neurological team before he wrote this?

[00:23:08] Speaker 01:
Isn't that my understanding of this report?

[00:23:10] Speaker 00:
So Dr. Velazquez, according to this report, is a neurologist.

[00:23:13] Speaker 01:
And what about Dr. Denson, the one that says possible, who got wrong, what the neurologist said, got it wrong, no question he got it wrong.

[00:23:20] Speaker 01:
What about him?

[00:23:21] Speaker 01:
Is he a neurologist?

[00:23:22] Speaker 00:
I'm not sure.

[00:23:23] Speaker 01:
He's not.

[00:23:23] Speaker 00:
I don't think, I don't have any reason to think he is.

[00:23:25] Speaker 00:
He's not.

[00:23:26] Speaker 00:
But this evidence was before, this evidence was what the RO considered in 1992.

[00:23:32] Speaker 00:
The RO got a medical opinion and the medical opinion, if looking at factors that are relevant to MS, to my lay understanding again,

[00:23:40] Speaker 01:
I'm not a lay doctor, and he's actually a specialist in this the guy who said she probably has them That's actually the best specialist in the entire record This is probable and ask then you get a generalist later that comes on and says oh that guy said possible in it

[00:23:56] Speaker 04:
The doctor said probable and s but does not meet all the criteria at the time at this time Your reasonable interpretation in the record, but couldn't another reasonable interpretation of the record again I understand where in fact finding the line is that back in 1992?

[00:24:16] Speaker 04:
the ratings officer was looking for a conclusive diagnosis of multiple sclerosis when

[00:24:25] Speaker 04:
Under the law, all that was really required was, was it more likely than not that Ms.

[00:24:31] Speaker 04:
Baker had multiple sclerosis?

[00:24:34] Speaker 00:
I agree that the standard is, was it more likely than not?

[00:24:36] Speaker 00:
I can't look into the RO's mind as to whether they were.

[00:24:39] Speaker 04:
But in terms of putting all this information together, it appears that we have one doctor that says, probable MS.

[00:24:47] Speaker 04:
We have another doctor, Dr. Denson, who says, I'm not convinced she has MS.

[00:24:53] Speaker 04:
ultimately saying, I cannot say that she conclusively has MS.

[00:24:58] Speaker 04:
And then the ratings officer comes in after all of this and says, I don't think there's not enough here to prove MS.

[00:25:06] Speaker 04:
And so in that way, the ratings official, maybe Dr. Denson isn't required to apply the applicable law, but certainly the ratings officer is on the more likely than not standard.

[00:25:19] Speaker 04:
That that was the standard that govern the ratings official I don't think there's an indication that the reasonable reading of of all this record I know you have your counter reading it, but I'm trying to understand Another way of understanding all this that seems to track the way the truth is thinking about the kids.

[00:25:40] Speaker 00:
I Don't think it's a totally unreasonable reading of the record.

[00:25:43] Speaker 00:
I think there's thank you.

[00:25:44] Speaker 00:
I think I think there's evidence the concession of all concessions

[00:25:47] Speaker 00:
I think there's evidence in different directions.

[00:25:51] Speaker 00:
I also do want to note, though, about the RO, because there were some allegations of bad faith on the part of VA here, that Miss Baker was service connected for Vertigo back in 1982.

[00:26:04] Speaker 00:
So it's not like she was denied anything.

[00:26:06] Speaker 00:
And it's also that the RO did go out and get a medical opinion.

[00:26:10] Speaker 00:
So I think this is all consistent with good faith.

[00:26:13] Speaker 00:
I understand Your Honor's point.

[00:26:15] Speaker 00:
But the point of Q is not to look at was everything

[00:26:17] Speaker 00:
explained, you know, precisely and perfectly.

[00:26:20] Speaker 00:
The point is, was there an undeniable error that was outcome determinative?

[00:26:23] Speaker 00:
And in light of the board's findings here, it just doesn't lie to that standard.

[00:26:28] Speaker 00:
Happy to answer any other questions the court may have.

[00:26:31] Speaker 00:
If not, we ask the court to dismiss or alternatively affirm.

[00:27:04] Speaker 05:
Since it seems that the court's much more worried about its jurisdiction than the actual issue of the case, I'd like to say that I believe you do have jurisdiction, because everything below you is a violation of either 38 USC 7111 or 38 CFR 2205A, all of which provide that if the evidence establishes that an error has been made, then

[00:27:34] Speaker 05:
the board and the court of veterans claims needs to actually correct the error.

[00:27:42] Speaker 05:
In this case, nobody's correcting the error.

[00:27:44] Speaker 01:
Yeah, but the problem is I only have the ability to correct legal errors.

[00:27:49] Speaker 01:
You're right.

[00:27:49] Speaker 01:
The CAVC could have corrected a factual error or an application of law, like the regulation and the statute that you cited, an application of law to the facts of the case.

[00:28:00] Speaker 01:
The board could have done it.

[00:28:01] Speaker 01:
The CAVC could have done it.

[00:28:03] Speaker 01:
They didn't.

[00:28:06] Speaker 05:
I'm sorry, I'm interrupting.

[00:28:07] Speaker 05:
I'm not allowed to.

[00:28:10] Speaker 05:
Respectfully, these lawyers say to the court, I don't believe that's correct.

[00:28:15] Speaker 05:
I believe that your determination as the Federal Circuit that the Veterans Court misinterpreted the law

[00:28:26] Speaker 05:
and didn't correctly apply the law is a legal error.

[00:28:30] Speaker 05:
And that throws it back to you.

[00:28:32] Speaker 01:
Well, actually, unfortunately, all of our case law says opposite of what you just said when it comes to apply the law.

[00:28:39] Speaker 01:
Application of law to a given set of facts is outside the scope of our jurisdiction.

[00:28:43] Speaker 02:
Tell us how we should interpret the law correctly without talking about the facts of your case.

[00:28:50] Speaker 05:
Well, to interpret the law correctly, you would say that it's the obligation of the BVA and the Court of Veterans' Appeals to examine the entire record and to make a determination whether or not the entire record was complete back at the time that the original decision was made.

[00:29:11] Speaker 05:
Both the board and the Court of Veterans' Appeals

[00:29:15] Speaker 05:
failed to examine the entire record, and therefore failed to apply the law correctly.

[00:29:23] Speaker 05:
And you don't have to get to what the facts are going to balance out to.

[00:29:28] Speaker 05:
Where Judge Moore was is probably a whole lot more than possibly.

[00:29:34] Speaker 05:
But if the decision in 1992 for this court doesn't discuss it whatsoever,

[00:29:46] Speaker 05:
So we're not arguing about what the facts are because the facts aren't in the decision.

[00:29:51] Speaker 05:
So it's a legal error to write a decision

[00:29:55] Speaker 05:
that's void of all of the facts that you're using as the underlying basis of your decision.

[00:30:03] Speaker 05:
So the original decision by the rating officer violates the regulations of the law because they have to consider everything.

[00:30:16] Speaker 05:
And in order for you to know all these years later that they did, they have to talk about everything.

[00:30:22] Speaker 05:
They didn't do that.

[00:30:23] Speaker 01:
Well, counsel, I gotta cut you off.

[00:30:25] Speaker 01:
We're outside of our time.

[00:30:26] Speaker 01:
I thank all the lawyers this case has taken under submission.