[00:00:00] Speaker 03:
Our first case, an argued case, is Mark Smith v. Secretary of Veterans Affairs, 22-2169.

[00:00:07] Speaker 03:
Mr. Carpenter, good morning.

[00:00:11] Speaker 01:
Good morning, Your Honor.

[00:00:12] Speaker 01:
May it please the Court, Kenneth Carpenter, appearing on behalf of Mr. Mark Smith.

[00:00:17] Speaker 01:
The matter at issue is a question of regulatory interpretation, specifically what is required for a manifestly different outcome under the provisions of 38 CFR 20.1403.

[00:00:29] Speaker 01:
The decision below required that Mr. Smith, in order to get relief,

[00:00:36] Speaker 01:
from the 1996 decision was required to show as a manifestly different outcome that he would have prevailed on the issue of service connection and the service connection would have been awarded.

[00:00:52] Speaker 01:
But the issue of service connection in 1995 was not before the court, or excuse me, before the board.

[00:00:58] Speaker 01:
What was before the board was the question of well-roundedness.

[00:01:02] Speaker 01:
Fortunately, that is no longer a statutory requirement.

[00:01:05] Speaker 01:
But until 2000, it was a statutory requirement.

[00:01:09] Speaker 01:
And it was then a threshold question that determined whether or not the veteran would or would not be entitled to the benefit of the VA's duty to assist.

[00:01:20] Speaker 01:
In other words, if there was not a well-grounded claim presented, then the veteran would not get the benefit of the duty to assist.

[00:01:29] Speaker 03:
That isn't ultimately a question of service connection.

[00:01:33] Speaker 03:
That's the benefit you want.

[00:01:35] Speaker 03:
And manifestly different is not new language.

[00:01:41] Speaker 01:
No, it's not new language.

[00:01:47] Speaker 01:
But in 1995,

[00:01:49] Speaker 01:
The manifestly different outcome language did not appear in the regulatory provision for revision.

[00:01:57] Speaker 01:
The regulatory provision simply described what constituted under 38 CFR 3.103A, what constituted a clear and unmistakable error.

[00:02:09] Speaker 01:
in the version that was created when BVA or board cue was provided was written differently and included the manifestly different outcome language, but it did not refer to a award of benefits.

[00:02:30] Speaker 01:
And to address your first question as to what was before the court,

[00:02:34] Speaker 01:
a board all that was before the board was entitlement to the duty to assist the issue of service connection although denied was denied on a basis that the claim presented was not well-rounded but the only the only claim presented was a claim for service that is correct the question then as to what what is meant by

[00:03:01] Speaker 01:
up come determined no your honor because in the context of uh... clear and unmistakable error the intent is to provide a revision when a clear and unmistakable error was made it's clear and unmistakable it's an exception it's a rare exception it's not another opportunity for a second appeal it's an exception no your honor and mister

[00:03:26] Speaker 01:
Smith did not get an adjudication of his claim for service connection on the merits.

[00:03:32] Speaker 01:
That merit determination was cut short because the board found that his claim was not well-grounded.

[00:03:41] Speaker 01:
And as a not well-grounded claim, he didn't get the benefit of assistance.

[00:03:45] Speaker 02:
But he never appealed that rule, correct?

[00:03:49] Speaker 02:
That it was not well-grounded.

[00:03:51] Speaker 01:
no he did not and in nineteen ninety five because there was judicial review he could have made that appeal therefore he had to go back under the

[00:04:02] Speaker 01:
board cue statute and regulation to seek revision of the prior board decision, which was presented to the board, not to the regional office, because they were the adjudicator.

[00:04:16] Speaker 01:
But the point of cue is to put the veteran in the position that they would have been, but for the error.

[00:04:25] Speaker 01:
And but for the error in denying

[00:04:29] Speaker 01:
uh... are in boards finding that his claim was not well-rounded he would have got the benefit of the duty to assist and in the board's decision on review of the board decision that board decision made a favorable finding a fact that there was a equal amount of evidence positive and negative that he had a current disability that would have your net your argument

[00:04:56] Speaker 02:
She gives him the opportunity to put him in the position he would have been in had the error not been made, which sounds like that would apply to any sort of procedural misstep along the way from start to finish in the processing of a claim.

[00:05:13] Speaker 02:
And I don't think that's what it's all about.

[00:05:16] Speaker 01:
Well, Your Honor, that's not the circumstances here.

[00:05:19] Speaker 01:
And we are asking this court to review

[00:05:24] Speaker 01:
the interpretation relied upon by the Veterans Court that there had to be an award of service connection when service connection could not have been awarded as a matter of law because the claim was determined by the board not to be well-rounded.

[00:05:41] Speaker 01:
That was the legal determination.

[00:05:43] Speaker 01:
And at that time, under King v. Brown, it's cited in the board's decision at Appendix 28

[00:05:54] Speaker 01:
uh... the applicable law then was is that a determination of whether a claim is well-grounded is a legal is legal in nature therefore we are talking about the threshold legal determination for essentially the right to have an adjudication on the merits he did not yet an adjudication on the merits and therefore we believe that

[00:06:18] Speaker 01:
review under the correct interpretation, would have examined only whether or not the legal determination of well-groundedness was a clear and unmistakable error.

[00:06:29] Speaker 01:
We did not receive that below because the Veterans Court determined that the scope

[00:06:34] Speaker 01:
of 20.1403 was more narrow and required something that doesn't exist in the regulation.

[00:06:42] Speaker 01:
There is no reference in the terms of the regulation to an award of benefits.

[00:06:50] Speaker 01:
The regulation simply refers to a clear and unmistakable error.

[00:06:56] Speaker 01:
The clear and unmistakable error here was in the legal determination on well-groundedness.

[00:07:01] Speaker 04:
What about the regulations reference to manifestly change the outcome at the time it was made?

[00:07:07] Speaker 04:
I take it that your view is that outcome could include

[00:07:11] Speaker 04:
just not necessarily the ultimate outcome of the case, that is, whether he's entitled to the benefits or not, but would include interrogatory considerations like whether he's entitled to continue on with his case.

[00:07:28] Speaker 01:
That's your argument, right?

[00:07:29] Speaker 01:
That's correct.

[00:07:30] Speaker 01:
And the outcome in the context of VA

[00:07:33] Speaker 01:
law really only had two of those, if you will, threshold issues.

[00:07:39] Speaker 01:
In the first instance, it was well-groundedness until that was removed from the statute by Congress.

[00:07:45] Speaker 01:
And in the other alternative, it was the question of reopening, which this court concluded was a question of jurisdiction.

[00:07:52] Speaker 01:
So it was a legal determination as to jurisdiction.

[00:07:56] Speaker 01:
So if the issue before the board was either well-groundedness or new and material evidence to reopen,

[00:08:01] Speaker 01:
and those were adversely decided, that was the question, that was the outcome of that board decision.

[00:08:10] Speaker 01:
There was no outcome on the merits of the claim for entitlement to service connection, so how could he possibly show that the board had made a clear and unmistakable error on a matter they never reached?

[00:08:22] Speaker 04:
Do you think this argument has been considered before, for example, in Bustos or Yates?

[00:08:28] Speaker 04:
No, John.

[00:08:31] Speaker 01:
In the first place, in Bustos, all that existed was the regulatory provision for ROQ.

[00:08:44] Speaker 01:
What the court said in Bustos was that the case law had interpreted what that phrase means, and it was focused on the question of manifestly different outcome, but not on this question as to what that outcome is or what is being referred to.

[00:09:04] Speaker 01:
in this period.

[00:09:05] Speaker 01:
Right now, the provisions of 3.105 do include this manifestly different outcome language, but in 1995, they did not.

[00:09:24] Speaker 01:
Well, we want the opportunity to litigate the issue of entitlement to service connection from the date of his original claim.

[00:09:32] Speaker 01:
If granted, that would result in an earlier effective.

[00:09:34] Speaker 01:
That's correct, Your Honor.

[00:09:36] Speaker 01:
So unless there's further questions, I'll reserve the balance of my time.

[00:09:39] Speaker 03:
Thank you very much, Your Honor.

[00:09:53] Speaker 00:
May it please the court?

[00:09:55] Speaker 00:
First of all, this court does not possess jurisdiction over this appeal because it does not involve any question of regulatory interpretation.

[00:10:02] Speaker 00:
The Veterans Court merely applied the law to the facts of the case.

[00:10:06] Speaker 00:
When the Veterans Court was laying out what it was doing in this matter, it was not elaborating or expounding upon the meaning of the regulation.

[00:10:16] Speaker 00:
It was simply using its own precedent and synthesizing it and explaining how

[00:10:20] Speaker 00:
how the rules on Q would determine the outcome of that case, and so it was applying the law to the facts.

[00:10:28] Speaker 00:
It was not attempting to create a new legal standard, and it certainly was not creating a higher legal standard.

[00:10:35] Speaker 00:
But in any event, if this court takes jurisdiction, the arguments made here are contrary to this court's precedent, as laid out in Bustos, Cook, the non-reversed part of Hire, and Yates.

[00:10:49] Speaker 00:
It's also contrary to the regulation at 20.1403D, which is that a failure of the secretary to fulfill the duty to assist is not due.

[00:10:59] Speaker 00:
So the court has already determined these issues.

[00:11:03] Speaker 00:
In particular,

[00:11:04] Speaker 00:
The Veterans Court here did not establish any new rule of law, but the idea that in order to prevail on a Q case, the veteran must show that but for the error, he would have obtained a different outcome here in this case required to show that the error would have led to service connection.

[00:11:26] Speaker 04:
The error here... Why is outcome

[00:11:29] Speaker 04:
Why, in your view, is the reason why the word outcome there, when you say outcome, change the outcome in the case, that means the ultimate outcome?

[00:11:37] Speaker 00:
Well, I mean, that comes directly from the regulation at 20.1403A.

[00:11:43] Speaker 00:
I mean, it describes Q as its type of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

[00:11:53] Speaker 00:
And then at 1403C, it says that the error must have manifestly changed the outcome.

[00:11:58] Speaker 00:
And, I mean, this court's case law explains that it's not simply any kind of error.

[00:12:04] Speaker 00:
It is not just that a law was incorrectly applied.

[00:12:09] Speaker 00:
It's that the outcome would have been different.

[00:12:11] Speaker 00:
The ultimate outcome of the case.

[00:12:15] Speaker 00:
result that a veteran is seeking in this matter other than to obtain a benefit.

[00:12:19] Speaker 00:
Obviously the words service connection are not in the regulation because not every case is about service connection.

[00:12:26] Speaker 00:
I mean some claims of Q could be to get a higher rating or to get an earlier effective date.

[00:12:31] Speaker 00:
There are to be different types of

[00:12:33] Speaker 00:
claimed outcome determinative errors.

[00:12:35] Speaker 00:
So the regulation isn't going to say service connection, but in a case where there was a denial of service connection, as occurred here in 1996, the ultimate outcome, the result, would be to reverse that and obtain service connections.

[00:12:52] Speaker 00:
I think this court has been clear that simply saying that the error would have led to the provision of assistance is not an outcome-determinative error.

[00:13:03] Speaker 00:
I mean, this is very clear in Cook.

[00:13:06] Speaker 00:
I think Cook says that to say that an error would be the failure to provide claims assistance would require getting rid of the outcome-determinative part of Q, and in Cook, you know, the court denies doing this because

[00:13:20] Speaker 00:
Q must be an outcome-determinative error, and also, Q must be based on the record and existence of the time.

[00:13:25] Speaker 00:
That is a long-standing rule.

[00:13:28] Speaker 00:
Here, all we can say is that the error that was claimed was that certain positive evidence was not acknowledged in 1996.

[00:13:34] Speaker 00:
So even if that error was corrected, and the positive evidence that he had the disability was taken into account, there was still conflicting evidence that he did not have the disability at the time.

[00:13:47] Speaker 00:
So even correcting the error, the most he could have ever gotten was considering his claim to be well grounded and getting claims development assistance.

[00:13:55] Speaker 00:
So the error here, fixing that error would not change the outcome.

[00:13:59] Speaker 00:
All we can say is, based on the record at the time, which is a requirement of Q, is he could have gotten

[00:14:05] Speaker 00:
he should have gotten more assistance.

[00:14:07] Speaker 00:
And based on Cook, Cook clearly states that that is not Q, because just saying the record is incomplete is not enough to say the outcome would have been different.

[00:14:17] Speaker 00:
And the non-reverse part of hire says the exact same thing.

[00:14:21] Speaker 00:
In higher, the veteran claimed that had the VA fulfilled its duty to assist before adjudicating his claim, the record would have been complete and service connection would have been awarded.

[00:14:34] Speaker 00:
And he said the decision was based on an incomplete record.

[00:14:37] Speaker 00:
And this court rejected that theory.

[00:14:39] Speaker 00:
He said that the veteran could not prove that anything missing that would have been obtained with assistance would have changed the outcome because that was unknown as a future event.

[00:14:48] Speaker 00:
And I think Bustos

[00:14:49] Speaker 00:
stands for the same principle.

[00:14:51] Speaker 00:
Even if evidence had been considered, it would simply have put the evidence in equipoise and that we cannot say that would manifestly change the outcome.

[00:14:59] Speaker 00:
And that's the same issue here.

[00:15:00] Speaker 00:
The error complained of, of not considering certain positive evidence, is not so unequivocal or so undebatable that we can say the veteran would have been entitled to service connection had it been

[00:15:12] Speaker 00:
So the Veterans Court did not deviate from the long-standing interpretation of Q, both in the regulation and in this court's precedent.

[00:15:23] Speaker 00:
So hearing no further questions from the panel, I will conclude and say if the court finds there's no jurisdiction, it should dismiss or it should affirm because the Veterans Court used the correct standard.

[00:15:35] Speaker 03:
Thank you.

[00:15:42] Speaker 01:
To be clear, Your Honors, Mr. Smith asked is not for this court to determine whether there was or wasn't a cue.

[00:15:58] Speaker 01:
We are simply asking this court to interpret the language of the regulations, specifically the term outcome, and whether outcome does or doesn't refer to a threshold legal determination.

[00:16:11] Speaker 01:
And this case is undebatable that based upon the only decision made that the claim was not well grounded, he was not entitled to the duty to assist.

[00:16:25] Speaker 01:
So the government's suggestion that the most he could have gotten was what he already got is simply

[00:16:32] Speaker 01:
a misstatement of both fact and law.

[00:16:35] Speaker 01:
He didn't get the duty to assist because of a board decision in 1995.

[00:16:42] Speaker 04:
What about the fact that the regulation also says that an example of something that is not Q is getting the duty to assist?

[00:16:52] Speaker 01:
Because that example is that you can't plead an allegation of clear and unmistakable error on the basis of having been deprived

[00:17:02] Speaker 01:
of the duty to assist, that the government didn't assist you enough, that the VA didn't assist you enough.

[00:17:09] Speaker 01:
Here, the decision in 1995 was you get nada.

[00:17:14] Speaker 01:
There is no duty to assist because the claim you presented was not well grounded.

[00:17:20] Speaker 01:
That was the law then.

[00:17:22] Speaker 01:
That was wrong law, and Congress corrected that wrong law because Congress recognized that the statutory scheme that they created

[00:17:32] Speaker 01:
was intended to assist veterans.

[00:17:35] Speaker 01:
And that asking the veterans to meet the legal standard of well-groundedness before they could get the duty to assist was contrary to the statutory scheme.

[00:17:46] Speaker 01:
The only issue that was decided by the board, which because he did not take a direct appeal in 1995, his only remedy is under Q. And therefore, the only way that he could

[00:17:58] Speaker 01:
demonstrate you was to show that there was a clear and unmistakable error in denying his claim as not being well-grounded that was the basis for the denial they never reached the merits they never decided the merits so what will be afforded upon revision would be an instruction that the claim was well-grounded

[00:18:23] Speaker 01:
And as a well-grounded claim, he was entitled to the benefit of the duty to assist.

[00:18:29] Speaker 01:
And as Judge Laurie, excuse me, Your Honor, as you pointed out, Judge Laurie, he's been granted the benefit.

[00:18:35] Speaker 01:
So when he got the duty to assist, he got the benefit.

[00:18:39] Speaker 01:
I'm sorry.

[00:18:40] Speaker 01:
I didn't mean to interrupt you.

[00:18:41] Speaker 03:
Well, I should ask you about the assertion by the Forensic Council and apparently that was finding by the board that there were mixed facts.

[00:18:52] Speaker 03:
it wasn't manifestly clear that the outcome would have been different.

[00:18:58] Speaker 01:
This is a legal question.

[00:19:01] Speaker 01:
At the time in 1995, as cited by the board, the question of well-groundedness was a legal determination.

[00:19:10] Speaker 01:
So it didn't involve the application of law to fact.

[00:19:13] Speaker 01:
It involved whether or not the board correctly decided that the claim was not well-grounded.

[00:19:20] Speaker 01:
And that determination under

[00:19:23] Speaker 01:
That legal standard would have been simply dispositive of the fact that the claim was well-grounded when the board decision on appeal conceded that there was an equal amount of positive and negative evidence that he had a disability.

[00:19:40] Speaker 01:
That was enough to well-ground his claim as a matter of law.

[00:19:46] Speaker 01:
And therefore, he would have been entitled to the duty to assist.

[00:19:49] Speaker 02:
You're not arguing that.

[00:19:51] Speaker 02:
that there was a failure here to provide him with the duty to assist, and that's the basis for Q. That's right.

[00:19:58] Speaker 02:
Which would be directly contrary.

[00:20:00] Speaker 01:
Would be directly contrary.

[00:20:03] Speaker 01:
Yeah.

[00:20:03] Speaker 01:
So unless there's further questions from the panel, thank you very much for your time and consideration.

[00:20:07] Speaker 02:
Thank you, counsel.

[00:20:08] Speaker 02:
The case is admitted.