[00:00:01] Speaker 04:
The next case for argument is 23-2207, Bridges versus Collins.

[00:00:37] Speaker 04:
Well, this is interesting.

[00:00:38] Speaker 04:
Things change fast.

[00:00:40] Speaker 04:
I guess we got a new Secretary of Defense two days ago, and now his name is on the case.

[00:00:48] Speaker 04:
I'm not Secretary of Defense, I'm Secretary of Veterans Affairs.

[00:00:54] Speaker 04:
Ms.

[00:00:54] Speaker 01:
Quannens, whenever you're ready.

[00:00:56] Speaker 01:
Yes.

[00:00:57] Speaker 04:
Whenever you're ready, please proceed.

[00:01:02] Speaker 03:
Should we make you resubmit all the briefs?

[00:01:06] Speaker 01:
How many copies?

[00:01:09] Speaker 01:
Good morning.

[00:01:09] Speaker 01:
May it please the court?

[00:01:11] Speaker 01:
The first matter of issue in this appeal is whether the Veterans Court misinterpreted section 3.156C too narrowly as of this court's decision in question.

[00:01:25] Speaker 03:
Let me ask you a factual question.

[00:01:27] Speaker 03:
I couldn't see it in the record.

[00:01:29] Speaker 03:
Do any of Mr. Bridges' military records show stressors in Bolivia?

[00:01:35] Speaker 01:
They are not specific.

[00:01:37] Speaker 01:
They do show that he was seen for stress several times around the time period that he was in Central America and South America generally.

[00:01:47] Speaker 01:
The evidence that really shows that Bolivia, something happened in Bolivia, is in the psych opinion that says that he was reading the journal entries and he wept at them.

[00:02:01] Speaker 01:
So I have not actually, he and I have discussed it,

[00:02:05] Speaker 01:
facts, you know, not really.

[00:02:07] Speaker 04:
We don't take the... But that psych opinion was years later.

[00:02:11] Speaker 04:
So the facts here, the record we're considering for establishing new and relevant evidence does not include that psych thing.

[00:02:21] Speaker 04:
It's just his service and as Judge Wallach said, what else that's related to stressors?

[00:02:27] Speaker 01:
Well, I mean, basically what happened was when the record was incomplete in the first place,

[00:02:32] Speaker 01:
And Mr. Bridges saw a psychiatrist.

[00:02:36] Speaker 01:
And that psychiatrist said, he's trying for post-traumatic stress disorder, but he wasn't in any danger in Panama.

[00:02:43] Speaker 01:
It was the first thing that he said.

[00:02:45] Speaker 01:
And then Mr. Bridges was denied service connection.

[00:02:49] Speaker 01:
And then later, when these records had been added and there was more detail and there was more countries involved, then the psych opinion that happened later, I think it was 2011, 2012,

[00:03:02] Speaker 01:
But the answer was different.

[00:03:04] Speaker 03:
About just cause in Panama.

[00:03:08] Speaker 01:
Not necessarily just about just cause in Panama, but about how the totality of his service in Central America and South America does appear to have had a number of stressors that then caused post-traumatic stress disorder.

[00:03:22] Speaker 04:
Maybe it's Friday, and I've had a lot of cases.

[00:03:24] Speaker 04:
Maybe I'm missing.

[00:03:25] Speaker 04:
I thought the main deficiency that was identified in 2008

[00:03:30] Speaker 04:
was no psychiatric opinion diagnosing him with PTSD.

[00:03:34] Speaker 01:
Am I missing something?

[00:03:36] Speaker 01:
Am I right about that?

[00:03:37] Speaker 01:
In 2003, you mean the earlier decision?

[00:03:38] Speaker 01:
Yeah, the earlier.

[00:03:39] Speaker 01:
No.

[00:03:40] Speaker 01:
Well, so it's interesting how it was written.

[00:03:43] Speaker 04:
But that's what we're looking at under Kaiser.

[00:03:45] Speaker 01:
Right, exactly.

[00:03:46] Speaker 01:
Yeah.

[00:03:47] Speaker 01:
So the way the Veterans Court read it, it has to be, the service record has to be related specifically to the exact words that the VA used, basically, in the earlier decision.

[00:03:59] Speaker 01:
But in the legacy system, especially, that's not how VA did things.

[00:04:04] Speaker 01:
It would get to one item, and if it said that one wasn't satisfied, one element wasn't satisfied.

[00:04:09] Speaker 03:
But the service record matters, right?

[00:04:11] Speaker 03:
And the only service record you have relating to Bolivia is a commendation that they give to everybody in the Army when they're somewhere and they don't get a court martial for something saying,

[00:04:27] Speaker 03:
You did a great job here and wherever it is.

[00:04:31] Speaker 03:
There's nothing else.

[00:04:33] Speaker 03:
There's nothing saying combat certificate, which they give you when you're in combat, anything like that.

[00:04:39] Speaker 01:
What we think happened, Your Honor, because this is what we see did happen, is that once those records were added to the record, the psychiatrist knew to ask more questions.

[00:04:54] Speaker 01:
at least that's the way it appears.

[00:04:55] Speaker 01:
That the psychiatrist was like, well, what about what happened here and what happened here?

[00:04:59] Speaker 01:
And they hadn't asked him that before, not to say that he should have known to bring up any particular stressors.

[00:05:06] Speaker 04:
Well, I thought in the 2003 file, I mean, it listed service in Panama and in Bolivia.

[00:05:12] Speaker 04:
So that wasn't completely absent.

[00:05:15] Speaker 04:
He just didn't make anything of it.

[00:05:17] Speaker 04:
He didn't raise any allegations.

[00:05:19] Speaker 04:
But more importantly to me, again, I think I'm repeating myself, is that

[00:05:24] Speaker 04:
They looked at what he said, which was Panama, I have these stressors.

[00:05:29] Speaker 04:
And they said, but you don't have any medical confirmation of PTSD.

[00:05:35] Speaker 04:
Am I misremembering that?

[00:05:37] Speaker 01:
They said that the first thing that they had said was there's no diagnosis.

[00:05:43] Speaker 01:
That was definitely the first thing that they got to.

[00:05:45] Speaker 01:
And then because they got to that, they didn't explicitly get to anything else.

[00:05:50] Speaker 04:
Right.

[00:05:50] Speaker 04:
So even if, hypothetically, and this is drawing inferences, which I'm not sure is appropriate for us to do, but he had Bolivia in there, even if there had been a stressor there, which Judge Lawlick points out, those records don't establish that, even that.

[00:06:07] Speaker 04:
But the deficiency is with the medical opinion that wasn't there for PTSD, right?

[00:06:15] Speaker 01:
Well, the deficiency, I mean, so

[00:06:20] Speaker 01:
This is a remedial regulation, of course.

[00:06:22] Speaker 01:
So we're used to looking at it and saying, well, VA should have gotten all these records in the first place.

[00:06:28] Speaker 01:
When these records were finally gotten, did anything come of that?

[00:06:31] Speaker 01:
Did anything change?

[00:06:33] Speaker 01:
And without deciding why did the psychiatrist say what they said, we do believe, first of all, that the elements of PTSD are kind of hard to separate.

[00:06:44] Speaker 01:
Because one of the things with PTSD is that you have to have had a stressor that was

[00:06:49] Speaker 01:
significant enough.

[00:06:51] Speaker 01:
Then you have to have had a certain reaction to it.

[00:06:53] Speaker 01:
Then you have to have certain symptoms.

[00:06:56] Speaker 01:
So by not having a diagnosis of PTSD, in part, it was because he said, well, he was never in any danger in Panama.

[00:07:05] Speaker 01:
So we feel like stressor.

[00:07:06] Speaker 01:
The fact that it said, yes, your company was in Operation Just Cause, we don't believe is conceding a stressor, because we believe that

[00:07:15] Speaker 01:
It's saying that, sure, he was there in just cause, which was not in a war zone or at a wartime.

[00:07:21] Speaker 01:
But something was going on there at that time.

[00:07:23] Speaker 01:
But nothing that was enough for a PTSD diagnosis.

[00:07:28] Speaker 04:
How do you come within Kaiser?

[00:07:32] Speaker 04:
What's your view of what Kaiser requires?

[00:07:36] Speaker 04:
And to then tell me how you think you come within that.

[00:07:39] Speaker 01:
Right.

[00:07:42] Speaker 01:
The main focus was what is still in issue or in dispute.

[00:07:47] Speaker 01:
And in this case, that would be anything that was not already, in any case, it would be anything that was not explicitly conceded by VA in the older decision.

[00:07:57] Speaker 01:
So if VA specifically said, well, we do absolutely believe this, you can check off that mark, but we don't believe the rest, which again, before favorable findings, VA didn't really work that way.

[00:08:08] Speaker 01:
However, in this case, there were no elements that were explicitly conceded.

[00:08:13] Speaker 01:
They're all still on the table.

[00:08:15] Speaker 01:
So under 5107A, the veteran is still on the hook to present and support all three elements.

[00:08:22] Speaker 02:
I thought in Kaiser, we said that the relevant issue is the issue that was dispositive against the veteran in the prior adjudication.

[00:08:34] Speaker 02:
And in Kaiser, that issue,

[00:08:37] Speaker 02:
that was dispositive against Mr. Kaiser was the lack of any PTSD diagnosis.

[00:08:45] Speaker 02:
And so whatever new records that came in, those records couldn't be said to be relevant because they just didn't tend to show that there was a medical diagnosis of PTSD.

[00:09:01] Speaker 02:
And now when I look at the situation here,

[00:09:05] Speaker 02:
It looks like we're in the same bucket where the basis for the denial by the RO in 2003 was the lack of any medical diagnosis of PTSD.

[00:09:19] Speaker 02:
And so now any new records that are being attached to his file, they will be relevant if they tend to show that there was a medical diagnosis of PTSD.

[00:09:33] Speaker 02:
And these records right now

[00:09:35] Speaker 02:
Nobody's disputing that they don't show that.

[00:09:39] Speaker 02:
So it feels like the Kaiser case, both the law and the facts are on all fours with this case.

[00:09:47] Speaker 02:
So I don't understand right now at the moment how you get away from Kaiser.

[00:09:54] Speaker 01:
Sure.

[00:09:55] Speaker 01:
The facts are fairly similar.

[00:09:57] Speaker 01:
Some of the language in the earlier decision was a little different.

[00:10:01] Speaker 01:
My answer to the dispositive against question, there's a couple.

[00:10:05] Speaker 01:
that the full phrase is that the service records need to be relevant to the issue that was dispositive against the veteran.

[00:10:12] Speaker 01:
We would argue that for a diagnosis of PTSD, one thing that you need is a sufficient stressor.

[00:10:17] Speaker 02:
Well, what was identified in the Kaiser opinion in that case being the issue that was dispositive against Mr. Kaiser?

[00:10:26] Speaker 02:
It was the lack of a PTSD diagnosis, right?

[00:10:30] Speaker 01:
Right.

[00:10:30] Speaker 02:
OK.

[00:10:31] Speaker 01:
And they had explicitly conceded.

[00:10:34] Speaker 02:
the dispositive issue that was against the appellant here, right?

[00:10:39] Speaker 02:
The lack of DTSD diagnosis.

[00:10:40] Speaker 02:
Those were the main words that they used, yes.

[00:10:44] Speaker 01:
Yes.

[00:10:46] Speaker 01:
In terms of reading 3.156C, and even under Kaiser, even though Kaiser's facts are similar, of course, just by saying

[00:11:01] Speaker 01:
there's no diagnosis of PTSD.

[00:11:03] Speaker 01:
There was just more behind that.

[00:11:05] Speaker 01:
First of all, there was more that the VA didn't get to, because it didn't see any need to.

[00:11:10] Speaker 04:
Mommy, I don't know the answer to this question.

[00:11:13] Speaker 04:
In 2003, did they conclude that there was a stressor in Panama?

[00:11:17] Speaker 01:
No.

[00:11:19] Speaker 04:
Did they reach that?

[00:11:20] Speaker 04:
They didn't say there wasn't.

[00:11:21] Speaker 04:
The basis for excluding it was lack of diagnosis, right?

[00:11:24] Speaker 01:
I mean, that was the main thing that they said, yes.

[00:11:26] Speaker 01:
I'm sorry.

[00:11:29] Speaker 02:
Did they identify any other basis for denying?

[00:11:34] Speaker 02:
No, because that's not typically how they would do it.

[00:11:38] Speaker 01:
So what we think is important with Kaiser specifically is that any element that still remains unestablished is still on the table.

[00:11:47] Speaker 01:
even if VA didn't specifically mention it, especially if it's related.

[00:11:51] Speaker 04:
But how is what Judge Wallach referred to, the one page of his service records that came in, how is that relevant to whether or not he had a diagnosis of PTSD for either Bolivia or Panama?

[00:12:07] Speaker 01:
The reason it's relevant is because the psychiatrist found it relevant.

[00:12:11] Speaker 01:
We feel that because once these records, and I think there was more than one record, but that was the main record that was focused on.

[00:12:18] Speaker 03:
He already told us.

[00:12:19] Speaker 03:
He had already said he was in Bolivia.

[00:12:23] Speaker 03:
Right?

[00:12:24] Speaker 01:
I think that Bolivia was, although I'm not certain.

[00:12:26] Speaker 01:
I apologize.

[00:12:27] Speaker 01:
No, he did.

[00:12:28] Speaker 01:
Yes.

[00:12:32] Speaker 03:
So now he has a piece of paper that says, you were in Bolivia.

[00:12:36] Speaker 01:
That's it.

[00:12:37] Speaker 01:
In support of this particular thing, whatever that was.

[00:12:41] Speaker 01:
that then caused the psychiatrist to- Working with our Bolivian friends.

[00:12:45] Speaker 01:
Sorry?

[00:12:45] Speaker 03:
Working with our Bolivian friends, that's what it says.

[00:12:48] Speaker 01:
Sure.

[00:12:49] Speaker 01:
My point is I have not dug into the facts more than I felt like the psychiatrist did.

[00:12:58] Speaker 01:
I felt like what literally happened here was that when the records were complete, the answers changed from both the psychiatrist and the adjudicator.

[00:13:08] Speaker 01:
And 3.156C

[00:13:10] Speaker 01:
is all about that.

[00:13:11] Speaker 01:
That is the whole point of 3.156C, as a remedial regulation so that veterans won't be harmed by the record being incomplete in the first place.

[00:13:21] Speaker 04:
So here, on an incomplete record, the answer of the medical inference is that if he had had the record in 2003, he would have given it to a psychiatrist.

[00:13:32] Speaker 04:
The psychiatrist would have read it and diagnosed him with PTSD, and he could have won this in 2003.

[00:13:37] Speaker 04:
Is that the theory?

[00:13:38] Speaker 01:
You may have.

[00:13:39] Speaker 01:
I mean, that's certainly what happened in 2008 or 2011.

[00:13:44] Speaker 03:
But what Sweeney says, the psychiatrist, is him saying, I saw lots of dead bodies during Just Cause, not I was there.

[00:13:56] Speaker 01:
That was some of it.

[00:13:57] Speaker 01:
And he had said that initially, and the first psychiatrist didn't seem to care because he wasn't in any personal danger, I guess.

[00:14:07] Speaker 01:
Basically, we want to make sure that when Kaiser is applied by the Veterans Court, that elements that were left unestablished, that the VA has not conceded, that a record that is related to, because a stressor is always related to the diagnosis of PTSD, if it's related to what went on in the earlier decision,

[00:14:32] Speaker 01:
Honestly, I think it should be if it's related to anything unestablished.

[00:14:36] Speaker 03:
Did you draw a distinction between related to and relevant?

[00:14:41] Speaker 01:
No, I guess I don't.

[00:14:42] Speaker 04:
OK.

[00:14:43] Speaker 04:
All right, you're into your rebuttal, so why don't we save that here.

[00:14:46] Speaker 04:
Sorry, thank you.

[00:14:46] Speaker 04:
Thank you.

[00:15:01] Speaker 04:
Good morning.

[00:15:01] Speaker 04:
Please proceed.

[00:15:02] Speaker 00:
Morning.

[00:15:03] Speaker 00:
May it please the court?

[00:15:04] Speaker 00:
The court should affirm the Veterans Court's decision because Mr. Bridges has not presented newly associated records relevant to the issue that was dispositive against his claim in 2003.

[00:15:15] Speaker 00:
I want to take the court to that decision in 2003.

[00:15:20] Speaker 00:
The language in that decision that we care about for this purpose is on Appendix 52.

[00:15:25] Speaker 00:
The first full paragraph near the top of the page, the middle of that paragraph says,

[00:15:31] Speaker 00:
Your claim for service connection for PTSD is denied because the evidence does not show it.

[00:15:36] Speaker 04:
Wait a minute.

[00:15:37] Speaker 04:
I'm sorry.

[00:15:37] Speaker 04:
Let me find it.

[00:15:38] Speaker 04:
Yes, appendix 52.

[00:15:39] Speaker 04:
52.

[00:15:40] Speaker 04:
And your claim this is in the middle of the page under 2.

[00:15:42] Speaker 04:
Under 2.

[00:15:44] Speaker 04:
Middle paragraph.

[00:15:44] Speaker 00:
No, above that.

[00:15:45] Speaker 00:
Sorry.

[00:15:46] Speaker 00:
The second paragraph on the page, so the top.

[00:15:49] Speaker 04:
OK.

[00:15:49] Speaker 00:
And then the second line, second sentence of that paragraph that begins, your claim for service connection for PTSD.

[00:16:00] Speaker 00:
So the paragraph begins, a diagnosis of post-traumatic stress disorder.

[00:16:04] Speaker 04:
This is neither here nor there, but he had evidence of stressors in Panama.

[00:16:12] Speaker 04:
Was that before them in 2003?

[00:16:15] Speaker 04:
Yes, Your Honor.

[00:16:17] Speaker 04:
So it wasn't the stressors that kept him out.

[00:16:20] Speaker 04:
It was the lack of a diagnosis.

[00:16:22] Speaker 00:
Correct, Your Honor.

[00:16:23] Speaker 00:
And actually, the first point of court to the last two pages of the records is appendix 173 and 174.

[00:16:28] Speaker 00:
That is, his stressor statement

[00:16:30] Speaker 00:
from the 2002 claim.

[00:16:32] Speaker 00:
But on that same page on 52, appendix 52, the sentence that I was focused on first was, your claim for service connection for PTSD is denied because the evidence does not show a confirmed diagnosis of post-traumatic stress disorder, which would permit a finding of service connection.

[00:16:50] Speaker 00:
The next paragraph and sentence is,

[00:16:53] Speaker 00:
You provided a stressor statement that you were involved in Panama Operation Just Cause and indicated that you saw 20 to 30 dead Panamanians.

[00:16:59] Speaker 00:
Your company's involvement in Operation Just Cause has been confirmed.

[00:17:04] Speaker 00:
We understand that to be acceptance of that stressor.

[00:17:07] Speaker 00:
And the board understood it that way, too.

[00:17:09] Speaker 00:
And the board decision that is operative at this point, there were a number.

[00:17:13] Speaker 00:
But the 2020, I think, 2.

[00:17:20] Speaker 00:
Yeah, 2022 board decision, this is at appendix 21.

[00:17:25] Speaker 00:
The characterization, this is again on appendix 21, the first full paragraph that starts at the time of the July 2003 rating decision.

[00:17:36] Speaker 00:
It said, the AOJ noted that although the occurrence of the veteran's claimed stressor was verified regarding traumatic events in Panama, the record did not reflect a medical diagnosis of PTSD.

[00:17:49] Speaker 00:
That characterization and the language of the board's decision or the RO's decision in 2003 put this case squarely on, of course, with Kaiser.

[00:17:57] Speaker 00:
The operative element of the claim was the lack or the denial of the claim was the lack of a diagnosis of PTSD.

[00:18:06] Speaker 00:
And so to the extent that, and I think what Mr. Bridges is arguing here is that his records, if anything, go to what could be another stressor, that element

[00:18:16] Speaker 00:
was not the dispositive element.

[00:18:17] Speaker 00:
The dispositive element was the lack of the diagnosis of PTSD.

[00:18:21] Speaker 00:
And so if we don't have records that are relevant to that diagnosis, then under Kaiser, they do not fall within 156C as relevant.

[00:18:36] Speaker 04:
There seems to be another issue raised, and I didn't have time to raise it with your friend, but I really don't understand.

[00:18:42] Speaker 04:
One, I'm not sure it's really that different than the first issue.

[00:18:47] Speaker 04:
And two, if it is, I'm not sure I understand what it is, because it seems to be characterized differently in blue.

[00:18:53] Speaker 04:
And then again, in gray, they're talking about the veterans canon.

[00:18:57] Speaker 04:
And so one, what do you think the argument is?

[00:19:01] Speaker 04:
And two, what should we do about it?

[00:19:04] Speaker 00:
I'm not entirely sure I know which specific argument, Your Honor, is referencing.

[00:19:09] Speaker 04:
There is an argument about- Well, there's some arguments that your answer to is it's a fact question.

[00:19:15] Speaker 00:
Yes, Your Honor, that's true.

[00:19:17] Speaker 00:
So I think the specific one that we addressed in the brief had to do with the argument that I think was addressed a little bit at the end of a friend's discussion about

[00:19:32] Speaker 00:
the speculation with respect to what these records might do.

[00:19:39] Speaker 00:
If these specific records had been in front of the examiner in 2003, what questions could that individual have asked?

[00:19:46] Speaker 00:
That is, we think, absolutely a fact question.

[00:19:48] Speaker 00:
It's one that the board, again, addressed actually on the same page that I had just pointed the court to in 21.

[00:19:55] Speaker 00:
At the bottom of the page, the bottom of the

[00:19:58] Speaker 00:
big full paragraph.

[00:20:00] Speaker 00:
I won't read it.

[00:20:00] Speaker 00:
There are several sentences that are relevant.

[00:20:02] Speaker 00:
But at that point, the board described why these particular records aren't relevant to a PTSD diagnosis.

[00:20:13] Speaker 00:
And then the Veterans Court also addressed the question of sort of the speculations at the bottom of appendix nine to

[00:20:23] Speaker 00:
onto Appendix 10 speculating that the service records, if they had been associated with his file in 2003, the medical examiner might have inquired about his service in Bolivia.

[00:20:35] Speaker 04:
But why do we reach those questions?

[00:20:36] Speaker 00:
You don't, Your Honor, I think is our point.

[00:20:38] Speaker 00:
You don't.

[00:20:40] Speaker 00:
There's been a lot of discussion about the facts here that I think are beyond the court's jurisdiction.

[00:20:48] Speaker 00:
I don't want to add to that.

[00:20:49] Speaker 00:
I will certainly note that, again, I think this is a factual question, but there were several VA exams that took into account the Bolivia records.

[00:21:03] Speaker 00:
There was one in 2009 and one in 2013.

[00:21:08] Speaker 00:
Those are appendix 70 to 84 and then appendix 117 to 121, both, again, finding no diagnosis of PTSD, the only

[00:21:18] Speaker 00:
PTSD diagnosis came from the private record in 2011.

[00:21:21] Speaker 00:
So there was a conflict.

[00:21:23] Speaker 00:
All three of those records considered the linear.

[00:21:25] Speaker 04:
And he got his benefits going back to 2008?

[00:21:31] Speaker 04:
Yes.

[00:21:32] Speaker 04:
Yes.

[00:21:32] Speaker 04:
So the fight here is between 2003 and 2008.

[00:21:35] Speaker 00:
That's correct, Your Honor.

[00:21:37] Speaker 02:
Just so I understand what you're saying, you're saying even if

[00:21:43] Speaker 02:
The claim, I guess in 2002, was read charitably to include within its scope something relating to Bolivia.

[00:21:55] Speaker 02:
We still get funneled back to the same finish line, which is the view that any and all of these documents still aren't relevant because they lack any evidence of a diagnosis of PTSD.

[00:22:11] Speaker 00:
Yes, Your Honor, that's correct.

[00:22:12] Speaker 00:
So I think there was a little bit of discussion in the briefing about the scope of the 2002 claim.

[00:22:18] Speaker 00:
Frankly, I don't think that question is relevant.

[00:22:21] Speaker 00:
I think there was a little bit of discussion in the Veterans Court and or the board about whether the claim was correctly construed as encompassing Bolivia as a stressor or whether it was specific to Panama.

[00:22:32] Speaker 00:
Either way, I think the board was probably correct in

[00:22:38] Speaker 00:
construing the claim as identifying stressors in Panama and Panama only.

[00:22:43] Speaker 00:
But even if we read the claim broadly to encompass all service, again, the stressor is not the dispositive issue.

[00:22:56] Speaker 00:
It's the PTSD diagnosis.

[00:22:58] Speaker 00:
And so regardless of whether those stressors were verified, whether new stressors are verified, they do not go to the question of that diagnosis.

[00:23:07] Speaker 04:
Can I just ask you for my own information, a historical question?

[00:23:10] Speaker 04:
Certainly.

[00:23:11] Speaker 04:
Did Kaiser change the way the CAVC and the board were dealing with this provision?

[00:23:17] Speaker 04:
I don't remember how Kaiser arose, if we were initially flipping the CAVC or not.

[00:23:26] Speaker 04:
Do you recall?

[00:23:27] Speaker 04:
I mean, has anything changed?

[00:23:28] Speaker 04:
Has the way the CAVC and the board deal with these kinds of cases changed since Kaiser?

[00:23:35] Speaker 04:
Do you think it's a different standard than they were applying previously?

[00:23:39] Speaker 00:
I don't think so, Your Honor.

[00:23:42] Speaker 00:
I think it clarified.

[00:23:43] Speaker 00:
Kaiser did affirm the decision below.

[00:23:46] Speaker 00:
So I think it certainly clarified how to treat the question of relevance.

[00:23:52] Speaker 00:
And this case actually was remanded from the Veterans Court to the board in light of Kaiser for the board to just make sure that Kaiser was being applied.

[00:24:01] Speaker 00:
But I don't think it fundamentally changed what the VA was considering.

[00:24:04] Speaker 02:
What if hypothetically the 2003 RO decision had said we're denying the claim for two different reasons.

[00:24:14] Speaker 02:
One is you don't have a stressor in service, and also you don't have a PTSD diagnosis.

[00:24:21] Speaker 02:
Then finally all these files come in.

[00:24:25] Speaker 02:
And we look at them, and there's evidence of an in-service stressor in Montevideo somewhere.

[00:24:34] Speaker 02:
Does that count as being relevant for consideration?

[00:24:41] Speaker 02:
Because it was an issue that was dispositive against the veteran, because at the time of the RO decision, one of the bases was the lack of an in-service stressor.

[00:24:54] Speaker 00:
I think if we're talking about the records that were at issue in this case or something similar to those, I think it would still probably not be relevant.

[00:25:06] Speaker 00:
I think it would be a bit factual, but I think it would still not be relevant because the point of Kaiser was to ensure that the new records and the factor that they went to could be outcome-determinative.

[00:25:18] Speaker 00:
And so if those records are going to one of two distinct

[00:25:23] Speaker 00:
bases that were found to be insufficient.

[00:25:28] Speaker 00:
You're still missing that diagnosis.

[00:25:30] Speaker 00:
And if these records don't go to that diagnosis, you can't change the outcome.

[00:25:34] Speaker 00:
So in that scenario, I think they still would not be relevant such that they would change the outcome of the original claim.

[00:25:44] Speaker 04:
Maybe.

[00:25:45] Speaker 04:
I mean, what if you had gone to psychiatrists and they said, well, unless you can show me that you have been in a stressful situation, I'm not going to accept that at face value.

[00:25:55] Speaker 04:
And then they come up with the records three years later that show that they were indeed in a stressor situation.

[00:26:01] Speaker 04:
Then maybe, I mean, there could be a set of facts, I think, that

[00:26:06] Speaker 00:
I agree, Your Honor.

[00:26:06] Speaker 00:
I think that's why I said it could be fact-determined.

[00:26:09] Speaker 00:
If the diagnosis, and I agree, the VA diagnosis, to some extent, does include a consideration of an in-service stressor.

[00:26:21] Speaker 00:
And so if the diagnosis says, we agree you've got some current psychological concerns, but we're not seeing a stressor event that would let us diagnose PTSD,

[00:26:35] Speaker 00:
then I think those documents would be relevant to the diagnosis, as opposed to just the structure itself.

[00:26:41] Speaker 03:
If we turn the situation on its head, and Just Cause had happened before Bolivia, and he came in and said, geez, every time I'm somewhere and I hear soldiers speaking Spanish, it takes me back to Just Cause, that hypothetical might be relevant.

[00:27:01] Speaker 03:
Yes, sir.

[00:27:02] Speaker 00:
Anything else?

[00:27:03] Speaker 00:
No, Your Honor.

[00:27:04] Speaker 00:
Thank you.

[00:27:04] Speaker 00:
Thank you.

[00:27:13] Speaker 01:
By your honors, sorry that I broke into my rebuttal time a bit before.

[00:27:21] Speaker 01:
I wanted to make clear, first of all, that we definitely did not ask what could the psychiatrist have said in 2003, particularly not of this court.

[00:27:28] Speaker 01:
That is a factual question.

[00:27:30] Speaker 01:
What I think you were asking about was the scope of claim question, in which the legal question was, if the veteran first says, I have PTSD because of this, and then later on, it turns out to be because of that, or whatever.

[00:27:44] Speaker 01:
I have a shoulder injury because of this, and later it turns out to be because of that.

[00:27:47] Speaker 01:
But that is also service connected.

[00:27:49] Speaker 01:
Can the VA at any point have limited the scope of the claim to just what the veteran first said, which is what we believe the board did here, when they said, well, wait, we were talking about Panama, not Bolivia.

[00:28:00] Speaker 01:
It made it sound like no record about Bolivia could be relevant at all as a matter of law, because the scope of the claim did not include Bolivia.

[00:28:09] Speaker 01:
And we wanted to make sure to respond to that as well, because we found it very concerning.

[00:28:14] Speaker 01:
Regarding the relevant question, as I mentioned before, of course, 3.156c is remedial.

[00:28:26] Speaker 01:
We think that all of this should be read very broadly in terms of

[00:28:30] Speaker 01:
Could a psychiatrist in 2003 have changed their mind?

[00:28:33] Speaker 01:
Maybe.

[00:28:34] Speaker 01:
I mean, we certainly can't say no.

[00:28:36] Speaker 01:
And we think that any time there's a maybe along the line in this question, it should go in the direction of the veteran, because the VA could have gotten their records in the first place.

[00:28:45] Speaker 01:
And we'll never know whether the answer would have been different then.

[00:28:48] Speaker 01:
Thank you.

[00:28:49] Speaker 04:
We thank both sides.

[00:28:50] Speaker 04:
The case is submitted.