[00:00:00] Speaker 00:
The next case for argument is 23-1474, Finkel versus McDonough.

[00:00:06] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Philip Finkel.

[00:00:13] Speaker 01:
An issue in this case is a question of regulatory interpretation.

[00:00:17] Speaker 01:
It deals with the regulatory provision that creates a presumption of aggravation for a condition that pre-existed service.

[00:00:27] Speaker 01:
In this case, we are dealing with a 1972 board decision that was attacked under the clear and unmistakable error statute to review what was done in 1972.

[00:00:42] Speaker 01:
That review was performed by the board and they denied or found that there was no clear and unmistakable error in the 1972 decision.

[00:00:54] Speaker 01:
Before the Veterans Court, we presented the issue

[00:00:57] Speaker 01:
of whether or not the regulatory provision under 38 CFR 3.306b was applicable.

[00:01:10] Speaker 04:
Are you going to be focusing on your blue brief argument or your gray brief argument today?

[00:01:18] Speaker 01:
I'm just curious.

[00:01:21] Speaker 01:
Well, I think I'm going to be focusing on both, Your Honor, because we

[00:01:25] Speaker 01:
responded in the reply brief to the arguments that were made by the government as to what was or was not in the 1972 decision.

[00:01:37] Speaker 01:
And we believe that it's the contents of the 1972 decision that dictate the outcome of this case which is that the Veterans Court was required to interpret whether or not the

[00:01:52] Speaker 01:
subsection B provision of the VA's regulation at the time did or did not apply.

[00:01:59] Speaker 00:
Are we talking about 3.606B?

[00:02:02] Speaker 00:
Is that the regulatory legislation?

[00:02:04] Speaker 00:
Yes, yes, 3.606B.

[00:02:10] Speaker 02:
What was the legal error?

[00:02:13] Speaker 02:
I read your brief to the CAVC and it said, oh, there was legal error in the 1972 decision.

[00:02:20] Speaker 02:
Didn't specify what or why.

[00:02:23] Speaker 02:
And I read your blue brief.

[00:02:25] Speaker 02:
I couldn't figure that out.

[00:02:27] Speaker 02:
So when I finally read in your gray brief, first off, Mr. Farber, with the gray brief, I kind of stubbed my toe when you said on page two that you're not asking us to determine whether there was Q. No, that's correct, Your Honor.

[00:02:50] Speaker 02:
Meaning there was no legal error.

[00:02:52] Speaker 01:
No.

[00:02:53] Speaker 01:
Q is the requirement to revise.

[00:02:58] Speaker 02:
And you revise on the basis if there was a legal error in the 1972 decision.

[00:03:06] Speaker 01:
Yes, Your Honor.

[00:03:07] Speaker 01:
But as I understand the criteria that has been imposed by the Veterans Court, they do not make the ultimate decision.

[00:03:15] Speaker 01:
They simply make the decision as to whether or not the law was or was not correctly applied in the context of

[00:03:24] Speaker 01:
clear and unmistakable error, so that they don't do a merits review.

[00:03:28] Speaker 01:
They simply review the legal question as to whether or not this regulatory provision.

[00:03:33] Speaker 02:
I don't agree with that.

[00:03:34] Speaker 02:
The more important question is, what is your legal argument here?

[00:03:38] Speaker 02:
And when I look at page two from page three to five, you make the argument about a predicate piece of evidence.

[00:03:54] Speaker 02:
And I think what you're trying to argue is that to trigger the duty of the VA to rebut the presumption, so to put the presumption in play, the veteran doesn't actually have to make a showing of an increase in severity.

[00:04:12] Speaker 02:
He has to produce some evidence that could lead to that conclusion.

[00:04:17] Speaker 02:
And if he presents that predicate evidence just to initiate this subject,

[00:04:22] Speaker 02:
then the burden shifts to the government to rebut the presumption.

[00:04:26] Speaker 01:
Right.

[00:04:27] Speaker 01:
And that shifting part only applies.

[00:04:30] Speaker 02:
That is the argument.

[00:04:31] Speaker 01:
That is the argument.

[00:04:32] Speaker 02:
Where is that argument presented in the blue brief?

[00:04:56] Speaker 01:
Well, I believe that it was presented at page six, the first paragraph, at the last sentence.

[00:05:04] Speaker 02:
Page six?

[00:05:06] Speaker 02:
Last sentence on page six?

[00:05:08] Speaker 01:
Yes.

[00:05:12] Speaker 02:
This says the Veterans Court, correctly note, underline required to apply the laws existed.

[00:05:18] Speaker 02:
That's true.

[00:05:19] Speaker 02:
No question about that.

[00:05:19] Speaker 01:
Right.

[00:05:20] Speaker 01:
But in the last sentence, it says, nonetheless, the Veterans Court did not... On page six of your blueberry?

[00:05:25] Speaker 01:
Yes.

[00:05:25] Speaker 02:
There is no last sentence.

[00:05:28] Speaker 02:
No, in the first paragraph.

[00:05:30] Speaker 02:
Oh, the first paragraph.

[00:05:31] Speaker 01:
I see.

[00:05:31] Speaker 01:
I'm sorry.

[00:05:32] Speaker 01:
Yes, the last sentence in the first paragraph.

[00:05:34] Speaker 01:
I'm sorry if I was not clear.

[00:05:35] Speaker 02:
OK, it didn't provide its interpretation.

[00:05:39] Speaker 02:
It's quite phenomenal.

[00:05:41] Speaker 02:
Oh, so the problem here was that the veterans court didn't understand what your argument was because you didn't present it to them.

[00:05:51] Speaker 02:
Well, Your Honor, we... How does this sentence that you just read to me preserve this argument about what amount of evidence it takes to trigger the presumption?

[00:06:02] Speaker 01:
Because the question is... In the blue brief.

[00:06:10] Speaker 01:
In the blue brief.

[00:06:11] Speaker 02:
Where is that argument?

[00:06:12] Speaker 01:
I believe that we presented a question of regulatory interpretation that was not addressed below.

[00:06:19] Speaker 01:
And that it was a failure.

[00:06:20] Speaker 02:
By not identifying it until the gray brief.

[00:06:25] Speaker 01:
No, I'm talking about below, before the Veterans Court.

[00:06:28] Speaker 01:
Before the Veterans Court.

[00:06:29] Speaker 02:
I'm talking about here.

[00:06:30] Speaker 02:
I'm talking about whether you waived this argument by presenting it in the gray brief.

[00:06:41] Speaker 02:
And if the best you can do is the sentence starting with nonetheless on page six, I don't think you've succeeded.

[00:06:53] Speaker 02:
Because you know, Mr. Carver, we have rules of engagement in this court working with these cases.

[00:06:58] Speaker 02:
And it's all very technical and complicated.

[00:07:00] Speaker 02:
And I have a lot of sympathy and understanding for this argument that shows up in the gray brief.

[00:07:07] Speaker 02:
But it's a little unfair to us and to the courts on the other side.

[00:07:11] Speaker 01:
It's my understanding that I have the obligation to present

[00:07:20] Speaker 01:
a question of regulatory interpretation to get within this court's jurisdiction.

[00:07:25] Speaker 02:
It's sufficient just to say you think there is one, and then to present it, and then to actually present everybody with the argument in the reply brief.

[00:07:34] Speaker 01:
And the argument was, in the opening brief, that this regulation applied.

[00:07:40] Speaker 01:
The board did not apply it.

[00:07:42] Speaker 04:
In fact, they found that... But the argument in the blue brief of why the rule was not followed

[00:07:50] Speaker 04:
according to the blue brief was because there was a total failure by the VA to rebut the presumption.

[00:07:59] Speaker 04:
And it wasn't about the, as Judge Clevenger pointed out, the important factual predicate of whether there was an increase in severity in the first place to even trigger the presumption.

[00:08:09] Speaker 04:
So that's why I was asking, are you going to be arguing your blue brief or your gray brief today?

[00:08:16] Speaker 04:
Because the blue brief was really about this whole, did the board in 1972 fail to rebut the presumption of aggravation?

[00:08:26] Speaker 04:
And here, the gray brief was, well, here's the argument for what is required to even trigger the presumption.

[00:08:37] Speaker 04:
So those are two different arguments.

[00:08:42] Speaker 04:
that's why i i'm with judge clevinger where i'm trying to find out where did you make what you argued in your great group your legal argument great group your blueprint which seemed to me to be entirely devoted to the total question as i understand the procedure

[00:09:02] Speaker 01:
I am not permitted to argue the merits before the Veterans Court.

[00:09:07] Speaker 04:
I am not allowed in the context of an appeal of a denial of... Well, I guess another question is, are you saying you couldn't have made the argument you presented in your gray brief, in your blue brief?

[00:09:20] Speaker 01:
No, I'm trying to say that what happened here was that the board, in its review of the 1972 decision,

[00:09:28] Speaker 01:
said that this provision of law was not applicable.

[00:09:34] Speaker 01:
And I appealed that determination to the Veterans Court and presented that issue that under the correct interpretation, the board, in its review of the 1972 decision, made an error of law that that provision was not applicable.

[00:09:52] Speaker 01:
So to me, the only issue is whether or not that provision is or is not applicable.

[00:10:00] Speaker 01:
The Veterans Court did not address the issue.

[00:10:04] Speaker 01:
I was simply following this.

[00:10:05] Speaker 02:
You didn't present them with the reason why they had to.

[00:10:09] Speaker 02:
You didn't argue that you had presented sufficient evidence to trigger

[00:10:15] Speaker 02:
the duty to rebut.

[00:10:18] Speaker 01:
Because it's my understanding, and I may be wrong, that I am prohibited from doing that by the rules at the Veterans Court, that I may not re-argue the merits.

[00:10:29] Speaker 02:
You're not re-arguing the merits.

[00:10:31] Speaker 02:
You're arguing a legal question.

[00:10:32] Speaker 02:
What evidence does it take to trigger the presumption

[00:10:38] Speaker 02:
requiring them, the VA, to rebut the presumption.

[00:10:42] Speaker 01:
But the decision of the board was, is that this provision did not apply.

[00:10:46] Speaker 01:
That seemed to me to be a yes or no legal question as to whether or not this regulation did or did not apply.

[00:10:54] Speaker 02:
And you have to give a reason why there's error.

[00:10:59] Speaker 02:
Simply to say there's error, and oh, I'll tell you, when I get to the Federal Circuit, I'll tell everybody what the error is.

[00:11:10] Speaker 01:
It is my understanding to do that would be arguing the merits.

[00:11:13] Speaker 01:
If I am wrong in that, then that is my error, and I accept that responsibility.

[00:11:19] Speaker 02:
Is that what's created this problem we've had since 1990, 1992, when I first met you, arguing here?

[00:11:28] Speaker 02:
Because this argument has gone on for many, many years, Mr. Carpenter, about

[00:11:32] Speaker 02:
It's almost the argument, first the argument, then the blue brief, first the one before the CVC, then the one in the blue brief, then the one in the gray brief, and then the one with the argument.

[00:11:41] Speaker 01:
And Your Honor, with all due respect, I do not see any resolution to that in the cases that have been handed down that explains to an advocate how you present that.

[00:11:53] Speaker 01:
And I will, in the very next opportunity I get, do that and present it in that way.

[00:12:00] Speaker 00:
Let me insert myself.

[00:12:02] Speaker 00:
I agree with everything that's been said, but I do the way trying as hard as I could to understand what it is you were arguing.

[00:12:13] Speaker 00:
At least not in your blue brief, but at least before the CAVC, it appears that you made a variation of the argument, which you say it says at page three, the board found that in the 1972 decision,

[00:12:29] Speaker 00:
that the appellant's back injury was not aggravated by service.

[00:12:32] Speaker 00:
That was a finding by the board.

[00:12:34] Speaker 00:
And in your opening brief, you argued that the board failed to recognize that his back condition worsened during service.

[00:12:44] Speaker 00:
Now, there's no regulatory argument.

[00:12:46] Speaker 00:
There's no saying this is a violation of the regs or this contravenes the regs.

[00:12:50] Speaker 00:
But the CABC and the board took you on on your argument that there was aggravation during service and concluded there was not.

[00:13:00] Speaker 00:
So I get to the same place, which is I don't know where you go for appeal, even if it had been preserved in blue.

[00:13:08] Speaker 00:
I think there is an argument made with regard to whether there was aggravation of service that would trigger the presumption below.

[00:13:14] Speaker 00:
And they made a fact finding that it was not, that there were two different injuries and that the L4 versus the L1 was based on the fact that the L4 was a different injury than the L1.

[00:13:29] Speaker 00:
end of story, no finding of aggravation.

[00:13:32] Speaker 00:
I don't know how we've reversed that or even review it certainly here on appeal.

[00:13:41] Speaker 01:
And because this is in the context of CUE, I am not able to re-argue the underlying facts.

[00:13:50] Speaker 00:
So the underlying facts, the conclusion, which are not subject to our review, are that there was no increase in severity during his five days of service.

[00:14:03] Speaker 00:
And so where does it get you?

[00:14:07] Speaker 00:
If there's no evidence and no indication and no conclusion of severity, how do you fit within the reg you're talking about?

[00:14:13] Speaker 01:
Because under the reg, the B subsection of that reg creates

[00:14:19] Speaker 01:
a regulatory presumption that must be rebutted.

[00:14:24] Speaker 00:
The finding of fact may create a... The presumption of aggravation kicks in when there is an increase in severity in service.

[00:14:35] Speaker 00:
Increase in severity of service, as I read the reg, is the predicate to the presumption applying.

[00:14:42] Speaker 00:
Do you disagree with that reading of the reg?

[00:14:45] Speaker 01:
not that reading of the red but i thought my problem is that the statute says what the regulations says in subsection a and it makes no mention of presumption that it shall be presumed that any condition that was not or that was noted at entrance was aggravated by service unless

[00:15:09] Speaker 04:
that language is not that he's still says where there's an increase in disability during such service it that's where there is again but the fact that it get every time is there has to be an increase in disability and there was the finding that there was no increases but the finding made by the board did not use the statutory or regulatory language they made a different finding

[00:15:38] Speaker 01:
And in that way, they failed to correctly apply the regulation that allows for that shifting of the burden to go to the veteran.

[00:15:50] Speaker 01:
And under the facts of this case, there was evidence acknowledged by the board in 72 that there was an injury that was resolved.

[00:16:03] Speaker 01:
And it was resolved before he entered service.

[00:16:06] Speaker 02:
That's different from the injury he got from the water ski.

[00:16:12] Speaker 01:
No, Your Honor.

[00:16:12] Speaker 02:
Two different conditions.

[00:16:14] Speaker 01:
Well, with respect, Your Honor, the medical board physician made the assumption that there were two different conditions.

[00:16:26] Speaker 01:
and attributed it to the skiing accident.

[00:16:28] Speaker 00:
And they're not second guessing that.

[00:16:29] Speaker 00:
And the 1972 board decision also concluded that the appellant's preexisting injury did not increase in severity during service.

[00:16:38] Speaker 01:
Correct.

[00:16:38] Speaker 01:
And that's not the legal standard under the statute or the regulation.

[00:16:44] Speaker 02:
What is the legal standard?

[00:16:46] Speaker 02:
Or what it takes to show an increase in severity?

[00:16:51] Speaker 01:
Unless there is a specific finding

[00:16:53] Speaker 01:
that the increase in disability.

[00:16:56] Speaker 02:
What are you reading from?

[00:16:57] Speaker 01:
I'm reading from the language of both the statute and the regulation, the regulation at 3.306A.

[00:17:04] Speaker 01:
And it says that there must be a specific finding that the increase in disability is due to the natural progression of the disease.

[00:17:13] Speaker 02:
So that's how you rebut.

[00:17:15] Speaker 01:
No, Your Honor.

[00:17:16] Speaker 01:
That assumes an increase.

[00:17:20] Speaker 00:
Let's hear from the other side.

[00:17:44] Speaker 02:
From reading Mr. Carpenter's blue brief, what did you understand to be the precise legal question he was presenting?

[00:17:52] Speaker 03:
May it please the court.

[00:17:54] Speaker 03:
So Judge Clevinger, we understood that Mr. Carpenter's submission to be that the VA needed to provide clear and unmistakable evidence to rebut the presumption of aggravation under these circumstances.

[00:18:07] Speaker 03:
And we pointed out in our response brief that that is not the correct standard.

[00:18:12] Speaker 03:
or that's the correct standard only when the presumption of aggravation is triggered.

[00:18:17] Speaker 03:
Here, there was an unreviewable factual finding by the board.

[00:18:20] Speaker 02:
I understand.

[00:18:21] Speaker 02:
I just want to get something.

[00:18:22] Speaker 02:
What you're saying is you read the blue brief to be, as Judge Chen suggested he read it, which was directed at the question of whether there had been a government that satisfied its duty to rebut the presumption.

[00:18:36] Speaker 02:
That's right.

[00:18:37] Speaker 02:
Is that the argument you understand you're going to be making in this gray brief?

[00:18:40] Speaker 03:
So I think that's a different argument in the gray brief, which goes to what showing the veteran has to make to get to the presumption of aggravation.

[00:18:53] Speaker 02:
To trigger it.

[00:18:54] Speaker 03:
To trigger it.

[00:18:55] Speaker 03:
That's right.

[00:18:56] Speaker 03:
That's a different argument.

[00:18:57] Speaker 03:
That's a different argument.

[00:18:58] Speaker 03:
We disagree with that argument as well.

[00:19:00] Speaker 03:
But that is a different argument.

[00:19:02] Speaker 03:
Yes, I agree.

[00:19:02] Speaker 03:
The reason we disagree with that gray brief argument is for some of the reasons that were suggested towards the end of the questioning, which is the language of the regulation and the statute are essentially the same.

[00:19:15] Speaker 03:
They both say, I'll read it, a pre-existing, this is 1153, 38 USC 1153,

[00:19:25] Speaker 03:
A pre-existing injury or disease will be considered to have been aggravated by active military, naval, air, or space service where there is an increase in disability during such service, unless there's a specific finding that the increase in disability is due to the natural progress of the disease.

[00:19:39] Speaker 02:
If that regulation read, where there is evidence of an increase in disability,

[00:19:46] Speaker 02:
If he said that, then I think you would agree Mr. Carpenter's gray beef argument has merits.

[00:19:51] Speaker 03:
Yes.

[00:19:51] Speaker 03:
Yes, Your Honor.

[00:19:52] Speaker 03:
Then that would be a cognizable regulatory argument.

[00:19:56] Speaker 03:
Absolutely.

[00:19:57] Speaker 03:
But it doesn't say that.

[00:19:59] Speaker 03:
In 3.306, A uses the same language as 1153.

[00:20:05] Speaker 02:
What about the statutory language in 1153 at the end, unless there is a specific finding that the increase in disability is due?

[00:20:16] Speaker 02:
Do you understand that language to be setting the standard for the secretary's obligation to rebut the presumption once it's triggered?

[00:20:26] Speaker 03:
Yes, Your Honor.

[00:20:27] Speaker 03:
And then that standard is developed in the regulation further.

[00:20:31] Speaker 02:
Mr. Karbler seemed to disagree with that when he was sitting down.

[00:20:34] Speaker 02:
That's why I asked to address that on his rebuttal.

[00:20:38] Speaker 03:
That's where 3.306B's language about

[00:20:41] Speaker 03:
clear and unmistakable evidence comes in.

[00:20:45] Speaker 03:
So that's what the regulation says is required to abide.

[00:20:51] Speaker 03:
And unless there are other questions, the last point I'll make is that our argument is consistent with the case law we cite in our brief, including Wagner, where this court said that the burden of establishing aggravation falls upon the veteran.

[00:21:05] Speaker 02:
I don't understand, Mr. The burden to trigger the presumption

[00:21:10] Speaker 02:
Regardless of what evidence is required to trigger it, I don't understand Mr. Carver to be arguing that that burden doesn't lie with the veteran.

[00:21:17] Speaker 02:
I think he agrees with that.

[00:21:19] Speaker 02:
The question is, what evidence does it take to trigger this obligation for the secretary to come in and say, oh, it wasn't just due to the natural progression?

[00:21:29] Speaker 03:
Fair enough.

[00:21:30] Speaker 03:
But again, that takes us back to the actual language used in the regulation of the statute.

[00:21:34] Speaker 03:
Where there is an increase in disability during such service,

[00:21:37] Speaker 03:
as opposed to where there is evidence of an increase in disability during such service.

[00:21:41] Speaker 02:
Well, also the past tense underwent no increase.

[00:21:44] Speaker 02:
This is in terms of the last sentence in B. That's right.

[00:21:49] Speaker 03:
Aggravation may not be conceded.

[00:21:51] Speaker 03:
That's right.

[00:21:52] Speaker 03:
So again, if there were language to the effect of where there is evidence showing or something, or evidence suggesting

[00:21:59] Speaker 03:
then it's a different case.

[00:22:00] Speaker 03:
But that's not what the language says.

[00:22:02] Speaker 00:
What does that last sentence mean that Judge Cleven did just refer to?

[00:22:05] Speaker 00:
I mean, it's weird to say aggravation may not be conceded.

[00:22:09] Speaker 00:
Conceded by the Veterans Administration?

[00:22:14] Speaker 03:
It is.

[00:22:15] Speaker 03:
I think so.

[00:22:17] Speaker 03:
I think so.

[00:22:20] Speaker 00:
It's a weird choice.

[00:22:22] Speaker 00:
I agree.

[00:22:22] Speaker 03:
I would read it to say there is no aggravation where, which is emphasizing the point, I think, in A.

[00:22:28] Speaker 02:
Well, you can read it as the benefits that you would ordinarily have gained by showing aggravation will not be given to you where basically the secretary has successfully rebutted.

[00:22:44] Speaker 03:
I think that's right.

[00:22:46] Speaker 03:
And it goes on to say, on the basis of all the evidence of record, so it's telling the VA, you have to look at everything holistically when making this determination.

[00:22:55] Speaker 02:
Well, it suggests also that on the basis

[00:22:58] Speaker 02:
The question of whether or not the presumption was triggered is based on all the evidence of record as well.

[00:23:05] Speaker 00:
And that finding was made in 72, and then again here on TU-8 by both the board and the CAVC.

[00:23:11] Speaker 03:
The finding that there was no increase.

[00:23:12] Speaker 03:
That's right.

[00:23:13] Speaker 03:
And that's not reviewable by us.

[00:23:15] Speaker 03:
That's right.

[00:23:15] Speaker 02:
To the extent that Mr. Finkle relies on the L1, L4

[00:23:24] Speaker 02:
distinction in the record to show an increase in severity.

[00:23:27] Speaker 02:
I believe that's his point.

[00:23:30] Speaker 02:
The L1 was a pre-induction, from a pre-induction medical exam that was taken before this water ski accident.

[00:23:43] Speaker 03:
That's correct?

[00:23:45] Speaker 03:
There were several different iterations of the examination.

[00:23:52] Speaker 03:
It might have been that the L1 was also reaffirmed after the water skiing.

[00:23:57] Speaker 03:
Because there was a water skiing accident in July.

[00:24:00] Speaker 03:
And then there was a note in the file that the injury was resolved.

[00:24:05] Speaker 03:
Not the injury, but the symptoms were resolved in October.

[00:24:08] Speaker 02:
Was that the symptoms of the water skiing accident?

[00:24:12] Speaker 03:
It says the back.

[00:24:14] Speaker 03:
There's a connection resolved with the back.

[00:24:17] Speaker 03:
So ultimately, this is a factual issue.

[00:24:20] Speaker 03:
But I think the bottom line is that back injuries can be tricky.

[00:24:25] Speaker 03:
And this was all based on how they were presenting on a particular day.

[00:24:30] Speaker 03:
So it may very well be that symptoms weren't evident on a particular day.

[00:24:36] Speaker 03:
But the injury continues.

[00:24:38] Speaker 03:
And the question is whether the injury gets worse, not whether the symptoms are showing up on any given day.

[00:24:44] Speaker 03:
It was the first day of basic training.

[00:24:46] Speaker 03:
that Mr. Finkel was unable to perform his basic training.

[00:24:51] Speaker 03:
There's no indication of anything happening during service that would have explained that apart from- How many days had he spent?

[00:24:58] Speaker 00:
It was like six days.

[00:24:59] Speaker 03:
Yeah, about six, seven days.

[00:25:01] Speaker 00:
And he didn't indicate that something had happened during that six or seven day period.

[00:25:05] Speaker 03:
There's nothing on the record indicating that.

[00:25:06] Speaker 03:
That's right.

[00:25:09] Speaker 03:
Thank you.

[00:25:09] Speaker 03:
Thank you.

[00:25:13] Speaker 00:
We'll restore two minutes of rebuttal.

[00:25:18] Speaker 01:
Just to clarify, Your Honor, at appendix 51, the, I believe, second page of the 1972 board decision, the board lists the evidence.

[00:25:31] Speaker 01:
And in listing that evidence, the board explicitly knows that the... Where are we?

[00:25:40] Speaker 02:
On what paragraph?

[00:25:42] Speaker 01:
The first full paragraph.

[00:25:45] Speaker 01:
There's a sentence that describes the extent of the service.

[00:25:49] Speaker 01:
And it was from October 8 to October 28 of 1968.

[00:25:53] Speaker 01:
And then the first full paragraph on the page that begins with the enlistment.

[00:25:59] Speaker 01:
And that describes the evidence that the board was operating under.

[00:26:04] Speaker 01:
And that evidence included a notation in his March 1968 exam that whatever injury he had at the L1,

[00:26:15] Speaker 01:
had been resolved, including the accident that happened in skiing in July.

[00:26:23] Speaker 01:
It was the medical board in service while he was on active duty.

[00:26:28] Speaker 02:
Where does it say that?

[00:26:35] Speaker 02:
Where does it say that that was including his accident, skiing accident?

[00:26:40] Speaker 01:
Oh, I'm sorry.

[00:26:41] Speaker 01:
You have to look at the medical board report, which is a couple of pages earlier, at appendix 41 that gives a final... When was this report?

[00:27:03] Speaker 02:
This is October 18th.

[00:27:04] Speaker 02:
This is when he's on the way out.

[00:27:06] Speaker 01:
October 21st.

[00:27:08] Speaker 02:
The medical board report.

[00:27:10] Speaker 02:
If you look at the very bottom of 41, it says 18 October.

[00:27:19] Speaker 01:
Well, on the preceding page, it says 21 October, but I do see that, Your Honor, I think.

[00:27:28] Speaker 01:
On the bottom of 41?

[00:27:29] Speaker 01:
Yes.

[00:27:33] Speaker 02:
Norenberg, who signed it.

[00:27:37] Speaker 01:
Oh, I see it.

[00:27:37] Speaker 01:
I see it now.

[00:27:38] Speaker 01:
I see it now.

[00:27:38] Speaker 01:
Yes.

[00:27:40] Speaker 01:
But if you back up to Appendix 39, which is what his entrance examination was in March of 1968.

[00:27:46] Speaker 02:
I thought you were making a point about 41.

[00:27:49] Speaker 02:
Now you're eliding away from that?

[00:27:51] Speaker 01:
No, no.

[00:27:52] Speaker 01:
You have to read them together because that was the evidence.

[00:27:56] Speaker 01:
And there is a notation on this exam report that was originally done in March that is dated in October of 68.

[00:28:07] Speaker 01:
The date appears.

[00:28:09] Speaker 02:
October 8.

[00:28:11] Speaker 01:
No, 4 October.

[00:28:13] Speaker 01:
It's in longhand, 4 October, 64.

[00:28:17] Speaker 02:
Where are you on that piece of paper?

[00:28:19] Speaker 02:
Which block are you in?

[00:28:21] Speaker 01:
74.

[00:28:22] Speaker 00:
74.

[00:28:25] Speaker 00:
Isn't this discussion about re-evaluating their evaluation of the evidence before them?

[00:28:31] Speaker 01:
And therein lies my problem, Your Honor, is that I seem to be unable to get review of facts because those were the facts that were decided in 72.

[00:28:48] Speaker 01:
But those are the very facts that did

[00:28:51] Speaker 01:
trigger the presumption of aggravation, because there was a separate diagnosis of the condition.

[00:28:57] Speaker 00:
OK, I know.

[00:28:57] Speaker 00:
But you recognize that's your problem.

[00:28:59] Speaker 00:
Do you think we can solve that by reviewing the facts?

[00:29:02] Speaker 01:
No, Your Honor.

[00:29:03] Speaker 01:
But I do think you can resolve that by interpreting this regulation.

[00:29:07] Speaker 01:
and to interpret this or to send it back to the Veterans Court.

[00:29:10] Speaker 00:
It seems like we have no dispute on what the regulation requires.

[00:29:14] Speaker 00:
You're just disputing.

[00:29:15] Speaker 00:
The government says that in order to trigger the presumption, you need to show there was aggravation.

[00:29:21] Speaker 00:
All the fact buyers who have looked at it say there was no aggravation.

[00:29:27] Speaker 00:
Those are the facts, right?

[00:29:28] Speaker 01:
No, I'm sorry.

[00:29:30] Speaker 01:
I do not believe those are the facts.

[00:29:32] Speaker 01:
And I'm relying on what

[00:29:34] Speaker 01:
The 72 board decision described as being the evidence before it.

[00:29:38] Speaker 01:
And the evidence before it showed that there were multiple injuries pre-service that had been resolved as of 4 October.

[00:29:48] Speaker 02:
How does that show an increase in severity?

[00:29:51] Speaker 01:
Because thereafter, while on active duty, he gets an actual diagnosis of the herniated disk.

[00:30:04] Speaker 01:
And that describes a different condition at L4 and L5 than was noted previously.

[00:30:12] Speaker 00:
You're just saying whether there was sufficient evidence to establish it was an aggravation of injury.

[00:30:17] Speaker 00:
And the 72 board, you're disputing the fact finding of all the tribunals below.

[00:30:23] Speaker 01:
But the issue is, was there an aggravation

[00:30:28] Speaker 01:
that caused an additional injury that took place while he was on active duty.

[00:30:33] Speaker 04:
And if we conclude that the legal argument you raised in your gray brief does not exist in your blue brief, then the gray brief argument is waived, right?

[00:30:42] Speaker 04:
Yes.

[00:30:43] Speaker 04:
OK.

[00:30:44] Speaker 04:
Thank you.

[00:30:44] Speaker 00:
Thank you.

[00:30:45] Speaker 00:
Both sides in the cases today.