[00:00:00] Speaker 03:
Jones versus McDonough.

[00:00:12] Speaker 04:
Mr. Jones suffered harm when the VA ignored the law to strip away benefits, all while he was battling cancer.

[00:00:24] Speaker 04:
This case is about clear and unmistakable error, but not the normal

[00:00:29] Speaker 04:
Q type of case where a veteran is asking to revise the denial.

[00:00:39] Speaker 03:
Well, but in this case, if I understand it right, and please correct me if I get anything wrong, the benefits were awarded based on a determination that he had, in fact, set foot in and served or served in Vietnam.

[00:00:53] Speaker 03:
And the government determined afterwards that they had relied on a postal code, which was inaccurate when they made that determination.

[00:01:01] Speaker 03:
The postal code used to be a postal code for Vietnam.

[00:01:05] Speaker 03:
But then it was changed in the 1970s to be a postal code for Hawaii.

[00:01:10] Speaker 03:
And they failed to appreciate that.

[00:01:12] Speaker 03:
So his service was actually in Hawaii during that period, not in Vietnam.

[00:01:17] Speaker 03:
Is that accurate?

[00:01:21] Speaker 04:
Chief.

[00:01:22] Speaker 04:
Actually, it's accurate up to a point.

[00:01:25] Speaker 04:
So what happened is he went to Vietnam.

[00:01:29] Speaker 04:
He spent the night.

[00:01:31] Speaker 04:
I'm not asking about whether he went to Vietnam and spent the night.

[00:01:33] Speaker 04:
I'm asking the question about the postal code.

[00:01:35] Speaker 04:
The postal code, what happened was the postal code switched from Vietnam sometime around 1973.

[00:01:43] Speaker 04:
to a postal code in Hawaii in 1974.

[00:01:47] Speaker 03:
OK, but maybe it'd be more succinct.

[00:01:49] Speaker 03:
His service records indicate that he served at that postal code during a certain period of time.

[00:01:55] Speaker 03:
But that was his service in Hawaii, not service in Vietnam.

[00:01:58] Speaker 03:
Is that correct?

[00:02:01] Speaker 03:
Right.

[00:02:01] Speaker 03:
Would you mind having someone close the exterior doors, or people walking back and forth?

[00:02:05] Speaker 03:
Thank you.

[00:02:07] Speaker 03:
Right.

[00:02:08] Speaker 04:
But the postal code could have never been

[00:02:11] Speaker 04:
the basis for the grant.

[00:02:13] Speaker 03:
Okay, again, that's not what I asked you.

[00:02:15] Speaker 03:
I asked you, did he serve in Hawaii during the period of time where that postal code is reflected in his military service records?

[00:02:23] Speaker 03:
In 1974, he was in Hawaii.

[00:02:27] Speaker 02:
So you're not challenging the basic predicate that there was a mistake made, that he misunderstood the code.

[00:02:34] Speaker 02:
That was the basis for them giving him, them awarding him the benefits in the first instance.

[00:02:39] Speaker 02:
And then when they found their error, they severed the benefits.

[00:02:43] Speaker 02:
Right?

[00:02:44] Speaker 02:
Is that a fair assessment of what happened?

[00:02:47] Speaker 04:
Your Honor, we say that it wasn't just the postal code.

[00:02:51] Speaker 04:
He had his testimony that he submitted with his claim saying that he went

[00:02:56] Speaker 00:
But there's nothing in the record that shows that that was actually even considered.

[00:02:59] Speaker 00:
I mean, when you look at the decision, it was all based upon his records and his SCRs based on the postal code.

[00:03:10] Speaker 00:
Wasn't that correct?

[00:03:11] Speaker 04:
Your Honor, under the presumption of regularity, they would have had to have considered his statement because it was part of the claim.

[00:03:20] Speaker 04:
And if you look at the evidence that's listed on the decision itself,

[00:03:26] Speaker 04:
It says STR to verify Vietnam service.

[00:03:30] Speaker 04:
And then it also says his claim.

[00:03:32] Speaker 04:
And they would have never even looked to verify.

[00:03:36] Speaker 00:
But there's nothing in the decision that indicates they gave credit or anything to his declaration.

[00:03:42] Speaker 04:
The original decision has very little.

[00:03:44] Speaker 04:
It doesn't say anything about an APO code.

[00:03:46] Speaker 04:
It doesn't say anything about his statement.

[00:03:48] Speaker 02:
Are you disputing, therefore, is the basis for your appeal here?

[00:03:51] Speaker 02:
Are you disputing?

[00:03:53] Speaker 02:
that they made the decision erroneously based on the erroneous reading of the code?

[00:03:59] Speaker 02:
Is that an issue here?

[00:04:03] Speaker 04:
No, Your Honor.

[00:04:03] Speaker 04:
We're not disputing that there was an erroneous code.

[00:04:07] Speaker 04:
But the question is, if we get rid of the erroneous code, whether there was still a basis to grant his original claim in 2012.

[00:04:15] Speaker 04:
And there was.

[00:04:17] Speaker 04:
It was his testimony.

[00:04:19] Speaker 02:
Well, the testimony you're talking about of 2012.

[00:04:23] Speaker 02:
Yes, Your Honor.

[00:04:24] Speaker 02:
And then it's in the record that there's a 1990 medical record where he says he had no exposure, correct?

[00:04:34] Speaker 04:
Yes, Your Honor.

[00:04:35] Speaker 02:
And then in the NOG, which was part of this proceeding, he

[00:04:42] Speaker 02:
talked about being smuggled in?

[00:04:45] Speaker 02:
Is that when he talked about smuggled in?

[00:04:47] Speaker 02:
Or at some point, he also said that he didn't go to Vietnam, but he just was exposed to some of the equipment that had been in Vietnam, and that was his exposure to Asian origin, right?

[00:04:57] Speaker 02:
So are you complaining about not considering all of the other stuff or just the 2012 statement?

[00:05:04] Speaker 04:
We are complaining that the 2012 court had to have considered the statement

[00:05:12] Speaker 04:
and his testimony to make the determination that he was service-connected.

[00:05:19] Speaker 04:
And they also included the APO code.

[00:05:24] Speaker 04:
Then they came back later and said, oh, the APO code is wrong.

[00:05:32] Speaker 04:
So the question is whether he still had a basis to be granted service connection

[00:05:41] Speaker 04:
based on his testimony and all of the different evaluation reports that showed that he was credible.

[00:05:52] Speaker 03:
What is the standard of review for that?

[00:05:55] Speaker 03:
What are we looking at right now?

[00:05:57] Speaker 03:
How do we judge whether or not his testimony was sufficient?

[00:06:05] Speaker 04:
Because it's a severance case.

[00:06:09] Speaker 04:
The burden is now on the VA and the government.

[00:06:13] Speaker 04:
So for the standard, they have to rebut his testimony.

[00:06:19] Speaker 04:
They can't just question it.

[00:06:22] Speaker 04:
Q is much higher, especially in a severance case.

[00:06:26] Speaker 04:
Much higher is not a standard.

[00:06:28] Speaker 03:
No.

[00:06:28] Speaker 04:
It has to be clearly an unmistakable error.

[00:06:35] Speaker 04:
And they can't just rebut.

[00:06:38] Speaker 04:
They have to rebut what he said.

[00:06:40] Speaker 04:
They can't just weigh it again.

[00:06:44] Speaker 03:
Do they have to rebut every single possible piece of evidence?

[00:06:47] Speaker 03:
Because here's what I'm thinking.

[00:06:49] Speaker 03:
I'm thinking, initially, they didn't really pay attention to his declaration.

[00:06:52] Speaker 03:
I mean, we don't know for sure what happened, but just go with me, hypothetically.

[00:06:56] Speaker 03:
They didn't pay attention to his declaration because his service records on their face indicated he was in Vietnam, so they just accepted it.

[00:07:01] Speaker 03:
Once the service records wait, wait a minute, the same time period, he says he's in Vietnam.

[00:07:05] Speaker 03:
He was actually not in Vietnam.

[00:07:07] Speaker 03:
He was in Hawaii.

[00:07:08] Speaker 03:
What?

[00:07:09] Speaker 03:
Wait a minute.

[00:07:09] Speaker 03:
Now suddenly it casts doubt on his claim.

[00:07:13] Speaker 03:
And now they look at his actual claim and they say, oh wait, there are all kinds of problems with this.

[00:07:18] Speaker 03:
This is not credible.

[00:07:20] Speaker 03:
And that's what they did in fact conclude ultimately that it wasn't credible.

[00:07:23] Speaker 03:
His assertion that he was smuggled onto a plane.

[00:07:28] Speaker 03:
or smuggled himself onto a plane and slept on a pool table for one night in Vietnam.

[00:07:34] Speaker 03:
He somehow smuggled himself on a military aircraft to go to Vietnam, was there for one night, told them he wanted to serve.

[00:07:40] Speaker 03:
They said no.

[00:07:41] Speaker 03:
They put him presumably on a military aircraft back to wherever he's supposed to go.

[00:07:45] Speaker 03:
There exists no records to substantiate any of this in his service records or elsewhere.

[00:07:51] Speaker 03:
And the government said this is just sort of too

[00:07:55] Speaker 03:
crazy and unsubstantiated.

[00:07:57] Speaker 03:
And the crazy part isn't the assertion.

[00:07:59] Speaker 03:
The crazy part is that it would be substantiated somewhere in something if it actually happened.

[00:08:05] Speaker 03:
There are too many moving pieces, whether he showed up in Vietnam, there'd be some record from the military indicating he showed up.

[00:08:11] Speaker 03:
Whether he was put back on the plane, even if somehow he smuggled himself on like in the plane to Vietnam on the military aircraft, which seems impossible to us in this day and age, but maybe not impossible back then.

[00:08:22] Speaker 03:
But even if he did, there'd be some evidence because then somebody's got to pay to fly back.

[00:08:27] Speaker 03:
You know, there's got to be some evidence somewhere.

[00:08:30] Speaker 03:
And that's what they said is crazy, that if his story had any truth to it,

[00:08:34] Speaker 03:
there would be some documentary evidence somewhere in a service record indicating this.

[00:08:39] Speaker 02:
And in any event, is it within our purview to second-guess those fact findings?

[00:08:49] Speaker 04:
It is.

[00:08:51] Speaker 00:
We're not talking about- What's the standard for that, though?

[00:08:54] Speaker 00:
What's our standard review on those factual findings is not credible?

[00:09:02] Speaker 04:
Again, it has to go to

[00:09:04] Speaker 04:
under the clear and unmistakable evidence standard.

[00:09:11] Speaker 04:
And I just wanted to clear up something about the APO code.

[00:09:15] Speaker 04:
So the APO code could have never have been the basis of his grant in the beginning, because the APO code in his service treatment records is from 1974.

[00:09:28] Speaker 04:
He went to Vietnam in 1970.

[00:09:32] Speaker 04:
So those are two distinct times of different separate times.

[00:09:36] Speaker 04:
And he wouldn't have been AWOL because he was on his leave when he went to Vietnam.

[00:09:43] Speaker 04:
And they just escorted him back onto a plane that was coming back that was returning people from Vietnam.

[00:09:52] Speaker 04:
So it's not unbelievable that there would have been some kind of record.

[00:09:58] Speaker 04:
And then he made it back to Fort

[00:10:02] Speaker 04:
Lewis to make it to his next duty assignment before he had to be there.

[00:10:07] Speaker 02:
I don't understand the first point you made about the APL being of 1974.

[00:10:11] Speaker 02:
You're not suggesting, I mean, there's no dispute, right, that he was stationed in Hawaii and the mistake was made initially by construing that as service in Vietnam rather than service in Hawaii.

[00:10:26] Speaker 02:
So I don't understand.

[00:10:27] Speaker 04:
Your Honor, the problem is, is that the

[00:10:31] Speaker 04:
Code that the VA is pointing to is from 1974.

[00:10:35] Speaker 04:
And it's just a set of numbers.

[00:10:38] Speaker 04:
It would look like a zip code.

[00:10:39] Speaker 04:
And that was assigned to Hawaii in 1974.

[00:10:44] Speaker 04:
He said he went to Vietnam in 1970.

[00:10:48] Speaker 04:
So there would be nothing in his record since he only spent one night there to show that he would have an APO code.

[00:10:58] Speaker 04:
So an APO code could- Well, the chief had asked.

[00:11:00] Speaker 00:
there seems like there would be some objective evidence somewhere because he's AWOL or, I mean, there's no service record whatsoever that he ever made that trip.

[00:11:12] Speaker 04:
Yes, Your Honor.

[00:11:13] Speaker 04:
There is no tangible evidence, but, I mean, there is no contemporaneous record.

[00:11:20] Speaker 00:
But isn't that appropriate for them to consider all that and decide on whether he's credible or not?

[00:11:24] Speaker 04:
Right.

[00:11:26] Speaker 04:
But they aren't looking for a basis for denial.

[00:11:29] Speaker 04:
They're looking for

[00:11:30] Speaker 04:
They have to look at the 2012 facts and see if there was still a basis for a grant.

[00:11:36] Speaker 04:
They flipped the standard because it's a severance case.

[00:11:40] Speaker 04:
They're used to the normal case.

[00:11:42] Speaker 00:
But they cited the standard correctly, did they not, in the opinion?

[00:11:44] Speaker 04:
Right, but that's not what they did.

[00:11:46] Speaker 03:
Council, would you like to reserve the rest of your time for rebuttal?

[00:11:49] Speaker 03:
Oh, yes, Your Honor.

[00:11:51] Speaker 03:
Mr. Yale?

[00:12:01] Speaker 01:
Thank you, Your Honor.

[00:12:02] Speaker 01:
May I please the Court?

[00:12:04] Speaker 01:
Just a couple of points.

[00:12:05] Speaker 01:
With respect to the original regional office decision, there's nothing in that decision that talks about the basis being this testimony.

[00:12:16] Speaker 03:
But there's nothing that says the basis was the APO code either.

[00:12:19] Speaker 01:
Well, but it refers to the service records, and it says, quote, verification of Vietnam service.

[00:12:27] Speaker 01:
from the service records.

[00:12:29] Speaker 03:
Where does it do that?

[00:12:30] Speaker 03:
Show me that.

[00:12:30] Speaker 01:
Sure.

[00:12:31] Speaker 01:
It's on 1554, 1555.

[00:12:40] Speaker 01:
So when it talks sort of under evidence on 1554, it refers to service treatment records from April of 1969 to May of 1995.

[00:12:49] Speaker 01:
And it says, including verification of Vietnam service.

[00:12:54] Speaker 01:
So a few months after that,

[00:12:57] Speaker 01:
The regional office looked at the decision.

[00:13:01] Speaker 01:
And what that was based on was this.

[00:13:06] Speaker 03:
So his testimony is not what they based the original decision on.

[00:13:10] Speaker 01:
Correct.

[00:13:11] Speaker 01:
And also, there were fact findings about what that basis was in any event.

[00:13:17] Speaker 01:
This court doesn't have jurisdiction to overturn those facts.

[00:13:21] Speaker 03:
But fact findings about what basis?

[00:13:22] Speaker 03:
By who?

[00:13:23] Speaker 03:
Where?

[00:13:23] Speaker 01:
By the board.

[00:13:24] Speaker 01:
The board went through and essentially said, goes through and said, the basis for the regional office decision was this incorrect Army post office code.

[00:13:36] Speaker 03:
Even if that is accurate, under Q, don't we have to look at the record to say, well, is there anything else?

[00:13:43] Speaker 03:
Suppose that there's no doubt that the postal code was wrong.

[00:13:48] Speaker 03:
And by the way, she makes a really good point.

[00:13:50] Speaker 03:
The postal code for Hawaii in a service record is from,

[00:13:54] Speaker 03:
1974, and his assertion in his application for benefits was that he was in Vietnam in 1970.

[00:14:01] Speaker 03:
So the VA screwed up kind of twice in this.

[00:14:04] Speaker 03:
The first time they screwed up is in not realizing the postal code was why not Vietnam.

[00:14:08] Speaker 03:
And the second screw up seems to be in not even realizing that the postal code was for a time period that wasn't the time period he was asserting he was in Vietnam for.

[00:14:17] Speaker 03:
Fair?

[00:14:18] Speaker 01:
Well, there's clearly an error here.

[00:14:21] Speaker 03:
Lots of them, actually.

[00:14:23] Speaker 01:
Well, I think there's maybe a couple of errors here.

[00:14:25] Speaker 01:
I think you can certainly excuse the fact.

[00:14:27] Speaker 01:
I think it's a little bit complicated.

[00:14:29] Speaker 01:
Personally, I did not realize that those codes would change.

[00:14:33] Speaker 01:
That is somewhat confusing.

[00:14:34] Speaker 01:
I think maybe the regional office could have been more careful.

[00:14:39] Speaker 01:
They actually figured it out pretty quickly, though.

[00:14:42] Speaker 01:
But again, here, the fact finder can consider this.

[00:14:45] Speaker 03:
The question I have is, the fact finder, do we look back at a cue determination?

[00:14:52] Speaker 03:
And this is a big question, not specific to this case.

[00:14:55] Speaker 03:
But do we look back at one of these two determinations and say, oh, well, look here.

[00:15:00] Speaker 03:
The specific thing they relied on turns out not to be right.

[00:15:04] Speaker 03:
Or do we look at all the record to see if the decision they made is otherwise substantiatable by the record?

[00:15:11] Speaker 03:
Basically, do we look at the whole record to say there is nothing in this record that could have supported that conclusion?

[00:15:18] Speaker 01:
Well, under the well-established principles of Q, you have to make, the board has to go through and make an outcome determinative.

[00:15:26] Speaker 01:
I mean, that's one of the prongs of Q.

[00:15:28] Speaker 01:
So they have to excise that error and go through and determine whether or not it's actually an outcome-determined error based upon the entire record, which is what happened here.

[00:15:37] Speaker 01:
The only other sort of piece of evidence there was that could potentially get the benefits here based upon him having actually served in Vietnam was this testimony.

[00:15:48] Speaker 01:
The board considered it and found it to be not credible.

[00:15:51] Speaker 01:
And that's a fact finding this court can't consider.

[00:15:53] Speaker 03:
And why did they find it not credible?

[00:15:55] Speaker 01:
Well, they found it not credible.

[00:15:57] Speaker 01:
I think on its face, the story is an unsanctioned trip.

[00:16:00] Speaker 03:
And if there is a that since you're saying the board made that fact finding on its face, where do they say it?

[00:16:07] Speaker 03:
Show me in the opinion.

[00:16:09] Speaker 01:
Sure.

[00:16:25] Speaker 01:
So on APX 19, it says, based on a review of the evidence of record, the board finds that severance of service connection for prostate cancer was proper.

[00:16:36] Speaker 01:
Review of the veteran's service personnel records does not indicate he had any Vietnam service despite his contentions.

[00:16:43] Speaker 01:
The veteran's testimony that he got smuggled on a plane going to Vietnam without orders is without probative value.

[00:16:49] Speaker 01:
There's no objective evidence documenting this alleged incident.

[00:16:53] Speaker 03:
They didn't say it's absurd on his face.

[00:16:54] Speaker 03:
He said there's no objective evidence documenting it.

[00:16:57] Speaker 03:
Right?

[00:16:58] Speaker 03:
Isn't the reason?

[00:16:59] Speaker 01:
Well, it says, quote, the complete absence of any of this evidence totally undercuts the veteran's testimony.

[00:17:06] Speaker 03:
Right.

[00:17:06] Speaker 03:
That's not that it's absurd.

[00:17:07] Speaker 03:
It's that there's no evidence to support it.

[00:17:09] Speaker 03:
And I think that, unless I'm mistaken, they're suggesting that there should have been evidence of this.

[00:17:15] Speaker 01:
Right, there should have been evidence.

[00:17:17] Speaker 01:
The board finds that there would have been at least some objective evidence.

[00:17:21] Speaker 03:
So the board's fact finding about why his testimony is not credible is that there isn't any evidence to support it, and this is the type of assertion for which you would expect to see supporting evidence, correct?

[00:17:33] Speaker 03:
Correct.

[00:17:33] Speaker 03:
So it's not that his assertion is absurd on its face.

[00:17:37] Speaker 03:
Is that fair?

[00:17:37] Speaker 03:
I mean, do you read this as saying it's absurd on its face, or do you read it as saying it's the kind of assertion for which there would be evidence?

[00:17:44] Speaker 01:
Well, I agree with you that what they're saying here is there would have been evidence of record, documentary evidence, if this actually occurred.

[00:17:57] Speaker 01:
The Veterans Court also calls it unsanctioned.

[00:18:00] Speaker 01:
But again, this is perfectly in keeping with this court's jurisprudence with respect to lay testimony.

[00:18:07] Speaker 01:
The board here has laid a foundation

[00:18:10] Speaker 01:
in accordance with Buchanan and other cases of this court, as to why there would be that evidence.

[00:18:18] Speaker 01:
And the board is not simply making a blanket statement that, essentially, there absolutely will always have to be corroborating documentary evidence for every piece of evidence.

[00:18:34] Speaker 01:
But this story, this smuggling on the plane,

[00:18:38] Speaker 01:
and leaving and going back to Fort Lewis, Washington, this unsanctioned trip would be the sort of, you know, that would be something where there would be some service record.

[00:18:51] Speaker 01:
And that's perfectly reasonable on its face.

[00:18:55] Speaker 01:
It just passes the common sense test.

[00:18:57] Speaker 02:
Can I just ask you a side question that has nothing to do with this case, but my curiosity is just overwhelming.

[00:19:03] Speaker 02:
If, in fact, he had made this trip, it was an unsanctioned trip that wasn't in connection with service.

[00:19:09] Speaker 02:
He was in Vietnam overnight and then went back.

[00:19:13] Speaker 02:
If that were correct and true, would that be sufficient basis to establish a connection to Agent Orange?

[00:19:20] Speaker 01:
It's a very good question.

[00:19:21] Speaker 01:
I think there's a legitimate question as to whether or not that constitutes, quote, service in Vietnam, because it would not be in the line of duty.

[00:19:32] Speaker 01:
So it separates that from the cases where I think there's cases where somebody is transiting to Thailand, and they stop for three hours at one of the bases in Vietnam.

[00:19:43] Speaker 01:
But that is sanctioned by the military.

[00:19:45] Speaker 01:
There's orders to do that.

[00:19:47] Speaker 01:
Here, there were no orders.

[00:19:49] Speaker 01:
And I think the acknowledgement... Like somebody took a vacation to Vietnam.

[00:19:53] Speaker 01:
Yes, somebody decided to go to Vietnam.

[00:19:56] Speaker 02:
And decides to smuggle themselves on a military plane and nobody knows he's going and nobody ordered him to be there.

[00:20:01] Speaker 01:
Right, so that would be without orders.

[00:20:03] Speaker 01:
It's unsanctioned.

[00:20:04] Speaker 01:
I don't think it... I think there's a legitimate argument that does not constitute service in Vietnam under the statute.

[00:20:10] Speaker 01:
Here, the board did not

[00:20:13] Speaker 01:
address that.

[00:20:14] Speaker 01:
And the Veterans Court did not address that.

[00:20:17] Speaker 01:
So that's certainly potentially an alternative basis, but that's not what was found here.

[00:20:23] Speaker 01:
And we think that just based upon the Q regulation,

[00:20:28] Speaker 01:
the board and the Veterans Court's determination are in accordance with the law.

[00:20:34] Speaker 02:
And do you understand and appreciate your friend's argument with respect to why the burden, the burden that they shifted, the burden, and even though they said the right things, they did something different?

[00:20:46] Speaker 01:
I candidly don't understand that.

[00:20:49] Speaker 01:
That's not based upon anything in the Veterans Court's decision or the board's decision.

[00:20:53] Speaker 01:
Because they went through and they identified what the correct standards were.

[00:20:58] Speaker 01:
who had the burden of proof, which was the government.

[00:21:02] Speaker 01:
And essentially what the board did was find that with respect to sort of the key element of Q here, which is whether or not the error was outcome-determinative, the board found that it was outcome-determinative.

[00:21:16] Speaker 01:
And they did that by going through and reviewing and considering the only piece of evidence that was left, which is this testimony, rejecting it as not credible.

[00:21:24] Speaker 01:
And so I don't understand the flipping of the burden

[00:21:27] Speaker 01:
in that sense.

[00:21:29] Speaker 01:
So I don't really understand that.

[00:21:31] Speaker 01:
But I'm not sure how, from what the board and the Veterans Court said, you could get to that point based upon this record and these decisions.

[00:21:40] Speaker 03:
What if the Veterans Court made a fact finding that the board didn't make and that that was a predicate for their decision in this case?

[00:21:48] Speaker 03:
Would that be a problem?

[00:21:49] Speaker 01:
Well, I mean, I think under cases like Tatlock, the Veterans Court is not supposed to make fact finding in the first instance.

[00:21:56] Speaker 01:
Again, I candidly don't know what the fact finding that the Veterans Court actually made here.

[00:22:02] Speaker 01:
Here, the Veterans Court certainly rejected arguments.

[00:22:07] Speaker 03:
Why don't we look at the Veterans Court decision at page JA6?

[00:22:19] Speaker 03:
This appears to be a fact finding, doesn't it, at the top here, that the veteran's 2012 testimony is in conflict with his 2018 testimony.

[00:22:31] Speaker 03:
And that is a basis for finding his testimony not credible.

[00:22:35] Speaker 01:
Respectfully, what the veteran's court is doing here is there was an argument that under Q, one of the elements of Q, you can't just be based upon a reweighing of the evidence of record at the time.

[00:22:50] Speaker 01:
And so that was an argument that was presented to the Veterans Court that there was a reweighing taking place here.

[00:22:56] Speaker 01:
All the Veterans Court doing here is saying that can't be the case that there's reweighing because essentially the argument that was presented to the Veterans Court was there was a reweighing from that initial decision.

[00:23:18] Speaker 01:
And that can't be a basis for Q.

[00:23:20] Speaker 01:
So here, the Veterans Court's just rejecting that argument, because it's saying, well, here is actually new testimony, because there was a board hearing here.

[00:23:30] Speaker 01:
And so the- I'm confused.

[00:23:32] Speaker 03:
I guess I'm not really following your logic.

[00:23:35] Speaker 03:
In this paragraph, it says, right, because the 2018 testimony modified or contradicted his earlier lay statements,

[00:23:47] Speaker 03:
The board's consideration of that testimony could not have been a mere reweighing.

[00:23:51] Speaker 03:
I don't see where the board itself made any fact findings to suggest that the two different sets of testimony were in conflict with each other.

[00:24:01] Speaker 03:
That is a fact finding.

[00:24:03] Speaker 03:
That is a fact finding, unequivocally.

[00:24:07] Speaker 01:
Well, respectfully, I don't see how that's a fact finding.

[00:24:10] Speaker 01:
There is a legal argument for this.

[00:24:11] Speaker 03:
You don't see how it's a fact finding for me to say that your testimony in 2012

[00:24:16] Speaker 03:
is different from your testimony in 2018.

[00:24:19] Speaker 03:
You don't think that's a fact finding?

[00:24:21] Speaker 01:
I don't think it's a fact finding in the context that

[00:24:23] Speaker 01:
the argument being raised was there was a reweighing of the evidence.

[00:24:28] Speaker 01:
And what the Veterans Court is pointing out is this is evidence from this additional board hearing.

[00:24:34] Speaker 01:
So usually in Q cases, what you're limited to, unlike this affirmative Q case with the regulation, is the original record.

[00:24:40] Speaker 03:
Is it a fact finding when you say somebody's testimony is inconsistent and you give the reasons why you think it's inconsistent?

[00:24:48] Speaker 03:
Is that fact finding?

[00:24:50] Speaker 01:
I mean, I think in the context of this argument, that's not a fact finding.

[00:24:54] Speaker 03:
And I think that- Do you think it's a legal determination?

[00:24:56] Speaker 03:
Because there's only two choices.

[00:24:57] Speaker 01:
Yeah, I think it's a legal.

[00:24:58] Speaker 01:
It's a determination by the Veterans Court that it's a legal determination that this doesn't qualify as reweighing of the evidence that would be potentially an issue for Q. And so I think- OK, your argument right now, not credible.

[00:25:14] Speaker 03:
But that's a legal determination.

[00:25:16] Speaker 03:
So I get to make it, right?

[00:25:18] Speaker 01:
I mean, again, OK, if that's, I mean, that can be, I've given sort of the explanation that we have for that.

[00:25:28] Speaker 01:
I'd also say that here, there's no other, with respect to the actual error of Q, it was this APO address.

[00:25:37] Speaker 01:
And that was the error here.

[00:25:39] Speaker 01:
So whether or not this particular, these other statements

[00:25:45] Speaker 01:
from the board hearing are coming in.

[00:25:48] Speaker 03:
I think the Veterans Court exceeded its authority and made fact findings.

[00:25:51] Speaker 03:
But let me tell you why that doesn't prevail.

[00:25:53] Speaker 03:
And it's not for your reason that it's somehow magically a question of law.

[00:25:56] Speaker 03:
It's because the paragraph begins, moreover, and they already decided on the prior paragraph that, based on the lack of documentary evidence, the case is over.

[00:26:06] Speaker 03:
And the next paragraph is a moreover.

[00:26:08] Speaker 03:
And then I think they did something wrong.

[00:26:10] Speaker 03:
I think they went on and made fact findings.

[00:26:11] Speaker 03:
They had no business making.

[00:26:12] Speaker 03:
But since it begins with moreover, and they had already reached a conclusion on the prior page, I think I can disregard that fact finding.

[00:26:19] Speaker 01:
Well, I mean, I think you can, too.

[00:26:21] Speaker 01:
I think we don't necessarily agree with that.

[00:26:24] Speaker 03:
You don't agree with what I just said about disregarding it?

[00:26:26] Speaker 01:
I don't agree with it's a fact finding under this court's precedent, but I agree that you can disregard that based upon the prior paragraphs.

[00:26:39] Speaker 01:
And if it was any further, we'd just ask that the court affirm the decision of the Veterans Court.

[00:26:45] Speaker 03:
We'll do.

[00:26:46] Speaker 03:
Got it.

[00:26:47] Speaker 03:
OK.

[00:26:48] Speaker 03:
Is it Ms.

[00:26:48] Speaker 03:
Shannon or Ms.

[00:26:49] Speaker 03:
Shannon Healy?

[00:26:49] Speaker 03:
I realized I- I'm sorry.

[00:26:51] Speaker 03:
It's Ms.

[00:26:51] Speaker 03:
Healy.

[00:26:51] Speaker 03:
Ms.

[00:26:52] Speaker 03:
Healy?

[00:26:52] Speaker 03:
Yes.

[00:26:53] Speaker 03:
OK.

[00:26:53] Speaker 03:
It carried over onto a second line.

[00:26:54] Speaker 03:
Sorry.

[00:26:55] Speaker 03:
I got your name wrong last time.

[00:26:56] Speaker 03:
I apologize.

[00:26:56] Speaker 03:
I have two middle names.

[00:26:58] Speaker 03:
It gets confusing.

[00:27:03] Speaker 04:
The Veterans Court in Horn, Virginia, said when assessing a claim, the board may consider the absence of evidence as substantive negative evidence, but the absence of evidence is insufficient to meet the Q standard when the burden of proof is on the VA.

[00:27:20] Speaker 04:
The absence of evidence is not negative evidence.

[00:27:25] Speaker 04:
So the 2012 VA

[00:27:31] Speaker 04:
the board and the court all had to have considered his testimony.

[00:27:36] Speaker 04:
And we argued that the court actually made three.

[00:27:39] Speaker 02:
Well, this is a little different here.

[00:27:40] Speaker 02:
It's not just the absence of evidence.

[00:27:42] Speaker 02:
There was an explanation.

[00:27:43] Speaker 02:
You may be correct if they had said nothing other than, well, he says it, but he hasn't proven it.

[00:27:49] Speaker 02:
But they did talk about and confirm

[00:27:53] Speaker 02:
that the normal practice would have been that there would have been some documentation.

[00:27:57] Speaker 02:
So it's not simply the absence of evidence.

[00:28:00] Speaker 02:
It's the absence of evidence when following regular order, there's reasons that there would have been evidence on the record.

[00:28:07] Speaker 02:
So it's a little more than what you're characterizing it as, I think.

[00:28:11] Speaker 02:
Right?

[00:28:14] Speaker 04:
Yes, Your Honor.

[00:28:15] Speaker 04:
But the question here has to be whether he had a reasonable

[00:28:22] Speaker 04:
whether he could have been service-connected, even if we get rid of this erroneous cue code.

[00:28:28] Speaker 04:
And the VA and the government has the burden of proving that that wasn't the case.

[00:28:39] Speaker 04:
And rebutting it, I'm sorry, and questioning his testimony without specifically rebutting it isn't the same.

[00:28:50] Speaker 04:
Other point is we actually found three separate errors of, sorry, for three separate times when the court made instant findings of fact in the first instance.

[00:29:01] Speaker 04:
And we think they actually relied on it.

[00:29:05] Speaker 04:
And to the error that you were talking about, Your Honor, his testimony didn't contradict it.

[00:29:12] Speaker 04:
The board said it reiterated it.

[00:29:14] Speaker 03:
I think his testimony was contradictory, exactly the way the Veterans Court did.

[00:29:18] Speaker 03:
But I don't get to make that decision.

[00:29:20] Speaker 03:
They don't get to make that decision.

[00:29:22] Speaker 03:
And I do think, since the whole section begins with a moreover, and they'd already reached a conclusion that the absence of documentary evidence where you would expect there to be some is a sufficient reason to find him not credible, I mean, I don't see how that moreover fact finding actually matters.

[00:29:39] Speaker 03:
It's like if the court finds there are two independent reasons to do something.

[00:29:43] Speaker 03:
But the Veterans Court shouldn't do that.

[00:29:45] Speaker 03:
They shouldn't make those kinds of fact findings.

[00:29:47] Speaker 04:
Yes, Your Honor.

[00:29:48] Speaker 04:
We ask that the court set aside, reverse, and remand Mr. Jones's claim back to the VA for them to restore his benefits.

[00:29:58] Speaker 04:
Thank you, counsel.

[00:29:58] Speaker 04:
I thank both counsel.

[00:29:59] Speaker 04:
The case is taken under submission.