[00:00:00] Speaker 00:
Good morning to all.

[00:00:01] Speaker 00:
The argument today we have is case 24-1298, Fails versus Collins.

[00:00:10] Speaker 00:
Ms.

[00:00:11] Speaker 00:
LaFazina, ready to proceed?

[00:00:12] Speaker 00:
We're ready to hear you.

[00:00:14] Speaker 02:
Yes, Your Honor.

[00:00:15] Speaker 02:
Thank you.

[00:00:17] Speaker 02:
And thank you for the accommodation on the oral argument.

[00:00:20] Speaker 02:
May it please the court?

[00:00:23] Speaker 02:
The central issue in Fails is firsthand fact-finding.

[00:00:27] Speaker 02:
We've got multiple pieces of critical evidence that were not considered by the board in the first place.

[00:00:34] Speaker 02:
They failed to, excuse me, they failed to comply with their reasons or bases requirement duty, which requires them to discuss evidence and either reject or accept the probative, you know, material evidence and probative value.

[00:00:48] Speaker 02:
And that was not done here.

[00:00:50] Speaker 02:
First, we have an opinion, a medical opinion submitted by the veteran prescriber provider that had multiple medical treatises connected to it that were not addressed by the board.

[00:01:03] Speaker 02:
The veterans court made firsthand fact-finding about those articles saying that they weren't relative, they weren't probative, and that they were basically explaining what the article said, some of what they said, in the board's stead, and that just can't stand.

[00:01:18] Speaker 02:
The second piece of evidence that was introduced was by the American Legion.

[00:01:23] Speaker 02:
They sent a brief up to the board, which had multiple links in it that discussed cancer and multiple myeloma and them being exacerbated by asbestos exposure.

[00:01:38] Speaker 02:
And they discussed that in the brief.

[00:01:40] Speaker 02:
This was also never addressed by the board.

[00:01:42] Speaker 02:
And again, at the Veterans Court,

[00:01:46] Speaker 02:
the judge in that position then issue exhausted it saying that it should have been raised beforehand.

[00:01:53] Speaker 02:
But we have an issue here where we can make an argument when the error hasn't occurred yet.

[00:01:57] Speaker 02:
So the fact that the board didn't address the American Legion's brief and the evidence presented in it could not have been ascertained beforehand.

[00:02:06] Speaker 02:
So it's unclear why issue exhaustion was applied in that situation.

[00:02:10] Speaker 02:
It's inapplicable and it's an unlawful application.

[00:02:16] Speaker 00:
Council, this is Judge Crouse.

[00:02:18] Speaker 00:
Let me just ask you about the first point you were making.

[00:02:21] Speaker 00:
I take your point about the board on its own, the CAVC on its own, just up and doing fact-finding.

[00:02:29] Speaker 00:
But in this context, as I understand what the CAVC was doing, it was determining whether the board's failure to discuss the articles was somehow prejudicial error or clear error or something.

[00:02:45] Speaker 00:
And in order to do that, by necessity, had to discuss the articles in order to evaluate the harmless error or whatever it was doing.

[00:02:54] Speaker 00:
Is that not correct?

[00:02:57] Speaker 02:
Of course, we need to determine whether or not there's prejudice or harmless error.

[00:03:01] Speaker 02:
However, the court only addressed those portions of the article that

[00:03:05] Speaker 02:
furthered its position.

[00:03:06] Speaker 02:
The articles, if they're read in their entirety, discuss the fact that asbestos can cause multiple myeloma.

[00:03:14] Speaker 02:
And the examiner wouldn't have submitted those articles on behalf and in support of it if they didn't, particularly the articles that were issued by American Legion in their brief.

[00:03:25] Speaker 02:
And they talk about

[00:03:27] Speaker 02:
and what the article said.

[00:03:29] Speaker 02:
So, but it's one thing for, had the board made a finding about it and said, we read these articles, we don't find them to be probative, we find them to be irrelevant, so we're rejecting that as probative evidence.

[00:03:42] Speaker 02:
And then for the veteran.

[00:03:44] Speaker 03:
May I interrupt Ms.

[00:03:45] Speaker 03:
Lopezina, please?

[00:03:46] Speaker 03:
Yes, yes.

[00:03:47] Speaker 03:
And we talked separately about what I'll call the Mubarak articles.

[00:03:53] Speaker 03:
These were the ones that were put in the record in 2012, and they deal with the American Legion separately.

[00:04:00] Speaker 03:
Yes, Your Honor, absolutely.

[00:04:02] Speaker 03:
The opinion of the CBC dealt explicitly with the, what I call the Mubarak Articles, and examined them and made a finding that there was harmless error, that to the extent that the board failed to look at these, the error was harmless.

[00:04:20] Speaker 03:
Your brief doesn't challenge the harmless air determination.

[00:04:25] Speaker 03:
I just heard you to say now that you think that the CABC was wrong and that there's material in those references that they should have seen, but you did not challenge the finding that there was harmless air with regard to MoBerrick.

[00:04:41] Speaker 03:
So that's my point of view with MoBerrick.

[00:04:44] Speaker 03:
You haven't really made your case.

[00:04:46] Speaker 03:
Secondly, if you look at American Legion,

[00:04:50] Speaker 03:
The American Legion argument was really dealt with in the opinion by the CABC at page appendix nine, just after they have finished talking about why the Mubarak articles are of no help to you.

[00:05:08] Speaker 03:
They then say that there are arguments that were made in the secretary's brief that you did not respond to because you failed to file a response brief.

[00:05:19] Speaker 03:
to the CAVC.

[00:05:21] Speaker 03:
And in that, the argument that they are referring to, that they are rejecting, is your argument based on the American Legion articles for the same reason.

[00:05:32] Speaker 03:
If you go back and look at the brief you filed at the CAVC, you clearly argued that it was error to overlook the American Legion articles.

[00:05:42] Speaker 03:
The secretary responded at the CAVC level with an explicit argument in which he pointed out first, he didn't think that the reviewing medical examiner on the remand did overlook them.

[00:05:58] Speaker 03:
But in any event, if they did, for the same reasons that Mobarik articles were harmless there, that was the same was true with regard to American Legion, namely that they did not teach

[00:06:10] Speaker 03:
what you claimed about direct causation.

[00:06:13] Speaker 03:
And so it looks to me like both with regard to the two sets of information that you believe were not done, there is a harmless error finding that you do not challenge.

[00:06:30] Speaker 03:
If it's so that both the Mubarak and the American Legion articles are out of the case in terms of helping you, it substantially undermines

[00:06:40] Speaker 03:
the other points in your case.

[00:06:43] Speaker 03:
So I think we need to look at those two articles, two batches of arguments separately.

[00:06:51] Speaker 02:
With respect to the first argument about the Mubarak email, the board never addressed it in the first place.

[00:06:56] Speaker 02:
And that's what has to be done according to the law.

[00:06:59] Speaker 02:
I mean, so the veteran court can't.

[00:07:02] Speaker 03:
Ma'am, it doesn't have to be done if there's a determination in the harmless error.

[00:07:08] Speaker 03:
analysis that the information was not relevant.

[00:07:11] Speaker 02:
But the board never made that judgment, never made that finding that there was harmless error.

[00:07:16] Speaker 03:
The board doesn't have to make the judgment if it is determined subsequently that it was harmless error for it not to have done that.

[00:07:25] Speaker 03:
The harmless error analysis is dealing with a situation where admittedly admittedly the board has not considered something.

[00:07:35] Speaker 03:
And so when a harmless error ruling comes down against you, you have to make a specific argument about the failed analysis of the harmless error test.

[00:07:48] Speaker 03:
And as I say, you didn't do that.

[00:07:50] Speaker 03:
There was a clear harmless error analysis conducted by the CAVC opinion.

[00:07:57] Speaker 03:
It's in the section that just precedes appendix nine.

[00:08:02] Speaker 03:
And then as I say, your

[00:08:05] Speaker 03:
clear argument to the CABC that there was error throughout for failure to consider the American Legion articles.

[00:08:13] Speaker 03:
That was disposed of because I'm sorry to say you failed to respond and the CABC adopted the secretary's view that the American Legion articles were not relevant.

[00:08:29] Speaker 03:
And therefore it was harmless error.

[00:08:32] Speaker 02:
The American Legion article specifically states that people who've been exposed to asbestos are at higher risk for developing myeloma.

[00:08:39] Speaker 02:
So that is in my brief.

[00:08:42] Speaker 02:
It says it very clearly and the argument was made at the outset.

[00:08:46] Speaker 03:
Ma'am, I'm sorry to be pressing.

[00:08:48] Speaker 03:
I understand what you're saying in your brief, but the problem is that we have to review the decision that was made by the CAVC.

[00:08:58] Speaker 03:
And the CAVC made a decision with respect to

[00:09:01] Speaker 03:
both of these bodies of information, Mubarak and American Legion, that it was harmless error for the board to treat them as of no effect whatsoever.

[00:09:13] Speaker 02:
And I'm arguing that that's arbitrary, apprecious, and an abuse of discretion, and that's not what the articles say.

[00:09:19] Speaker 03:
And I'm not a medical doctor, so I'm not here to dissect the... Secondly, if you're going to come to it on the exhaustive issue, I think there's some

[00:09:31] Speaker 03:
possible misunderstanding about what footnotes two and three relate to.

[00:09:36] Speaker 03:
I believe the CAVC's opinion makes clear that the Mubarak articles, pardon me, and the American Legion are out as a matter of harmless error.

[00:09:50] Speaker 03:
And that in paragraph footnote two, they are responding to what I will refer to as your plural disease theory.

[00:09:58] Speaker 03:
As I understand it, your

[00:10:00] Speaker 03:
Primary, your main argument to the board or your only argument to the board was that asbestos could be a direct cause of the bone marrow disorders that Mr. Fayl suffered.

[00:10:13] Speaker 03:
And when you came to the CAVC, you had a refinement or a different version of that argument, namely that asbestos wasn't the cause, but it was an indirect cause.

[00:10:28] Speaker 03:
because plural diseases, if they have been shown in your view, citing online evidence, your view that plural diseases can result from exposure to asbestos.

[00:10:43] Speaker 02:
Yeah, that was reasonably raised by the record.

[00:10:46] Speaker 02:
And that's why I was arguing is that the board should have addressed it in the first place.

[00:10:50] Speaker 03:
Ma'am, I fully appreciate your argument and I understand it.

[00:10:54] Speaker 03:
But there is a

[00:10:55] Speaker 03:
determination here by the CBC and as argued by the secretary, that that was a new theory.

[00:11:03] Speaker 03:
That was not an argument that had been presented to the board.

[00:11:08] Speaker 02:
Had the board considered the articles in the medical treatise evidence in the first place, then they would and either rejected or accepted it or given them some probative weight, then there would have it was reasonably raised by the record and they would have addressed it.

[00:11:25] Speaker 03:
Well, the finding by the CAVC and the argument by the veteran that this was a new hearing had not been presented is, again, your problem is you did not file a reply brief in this court.

[00:11:47] Speaker 03:
And so part of the problem from

[00:11:50] Speaker 03:
My take on your case is that the failure to file reply briefs both at the CAVC and here has precluded your ability to make the arguments that you're making now.

[00:12:07] Speaker 00:
You're in your rebuttal, Council, but please feel free to respond if you have a response to Judge Clevenger's comment.

[00:12:14] Speaker 02:
I don't, Your Honor.

[00:12:16] Speaker 02:
I yield the rest.

[00:12:17] Speaker 02:
I yield.

[00:12:19] Speaker 00:
Okay.

[00:12:20] Speaker 00:
Uh, government council up next.

[00:12:23] Speaker 00:
This is from Vancouver.

[00:12:26] Speaker 01:
Good morning, your honor.

[00:12:27] Speaker 01:
May it please the court?

[00:12:29] Speaker 01:
Uh, the court should dismiss this appeal because it does not raise any legal questions for this court to address.

[00:12:36] Speaker 01:
Um, first of all, the veterans court did not make its own new factual findings.

[00:12:42] Speaker 01:
It was reviewing the factual.

[00:12:45] Speaker 03:
Did I interrupt you for just a moment, ma'am?

[00:12:47] Speaker 03:
If indeed the CAVC engaged in independent de novo first time around fact-finding, that would be a legal error, would it not?

[00:13:01] Speaker 03:
So I think the question of whether or not... You can answer that yes or no and you don't answer it with the question.

[00:13:05] Speaker 03:
I mean, just assume a case in which the board decision, the CAVC decision starts off and said, this is a difficult case and there are a number of issues that weren't decided by the

[00:13:16] Speaker 03:
BVA, and we're going to decide these factual issues independently ourselves.

[00:13:22] Speaker 03:
And there was a... That would be reversible error, yes.

[00:13:24] Speaker 03:
That would be reversible.

[00:13:25] Speaker 03:
So, give credit, please, to Ms.

[00:13:31] Speaker 03:
Lopozina's argument.

[00:13:32] Speaker 03:
She's arguing, I think, incorrectly, but she's arguing that there was illegal fact-finding conducted by the CABC.

[00:13:40] Speaker 03:
So to the extent that she's making that argument, now you've just told me that there would be, that would be a legal question, correct?

[00:13:49] Speaker 01:
Correct, except that that's not what happens.

[00:13:51] Speaker 03:
Thank you very much.

[00:13:51] Speaker 03:
Secondly, with regard to whether or not Bozeman, right, is or is not correctly applied, if you had a case in which it was very clear from the facts that the appeal was

[00:14:07] Speaker 03:
on the basis of Bozeman was that there was an issue which had clearly been presented to the board the same way the bone marrow disease connected directly from asbestos was clearly presented to the board here.

[00:14:23] Speaker 03:
And there was an argument that favorable evidence had been overlooked.

[00:14:29] Speaker 03:
Correct.

[00:14:30] Speaker 03:
But the CBC rejected that.

[00:14:33] Speaker 03:
That would be a clear error of law.

[00:14:37] Speaker 01:
Right.

[00:14:39] Speaker 01:
So long as the CVC didn't make determinations contrary to both men, I think, yeah.

[00:14:45] Speaker 03:
You see, please, again, give some credit to La Pazina's argument.

[00:14:50] Speaker 03:
Her argument, which I believe is incorrect, is that the issue she's talking about was the issue presented to the board, which was the direct causation of bone marrow from exposure to asbestos.

[00:15:06] Speaker 03:
That was an argument she did present to the board, and she's arguing that the board failed to look at the four articles we've been talking about, the Mubarak and the American Legion.

[00:15:18] Speaker 03:
And if she was correct that that evidence was overlooked, she would have a good Bozeman argument.

[00:15:27] Speaker 03:
And therefore, there would be a question of law regarding Bozeman, right?

[00:15:34] Speaker 01:
I'm not sure it would be a Bozeman argument.

[00:15:37] Speaker 03:
But I guess her argument is that, and I'm now talking not about the plural disease theory, which was new and was based on evidence not on the record.

[00:15:51] Speaker 03:
And that was taken care of by footnote.

[00:15:55] Speaker 03:
Two, I'm talking about the direct causation by asbestos of the bone marrow diseases.

[00:16:02] Speaker 03:
And based on she's arguing, she knows she made that argument to the BVA.

[00:16:07] Speaker 03:
And if indeed she had access, if she could get at the American Legion and Mubarak Articles, that's evidence that she argues is favorable.

[00:16:17] Speaker 03:
And under Bozeman, it would have been wrong, right, for the board not to look at that.

[00:16:25] Speaker 01:
Right.

[00:16:25] Speaker 01:
So I think that that's the clear error of a factual finding rather than an issue exhaustion question.

[00:16:34] Speaker 03:
Excuse me.

[00:16:35] Speaker 03:
I don't, it's wrong of me to want to gobble up all your argument time debating with you about whether or not there's a fact or a law issue in front of us.

[00:16:45] Speaker 03:
Yeah.

[00:16:50] Speaker 03:
Please proceed.

[00:16:51] Speaker 03:
Sorry if I interrupted you.

[00:16:54] Speaker 01:
That's quite all right, Your Honor.

[00:16:55] Speaker 01:
I think critically, sort of what we have here, you know, the board did make factual findings.

[00:17:01] Speaker 01:
It's at appendix page 73, the board, and that's in its list of factual findings, concludes that there was no evidence that the veteran's bone marrow diseases were causally related to his service.

[00:17:17] Speaker 01:
And that's this disputed question about whether the asbestos

[00:17:22] Speaker 03:
Yes, that's clearly true, ma'am, but also the CAVC itself said that the board failed to look at the articles that we've been talking about.

[00:17:37] Speaker 03:
So I think what the CAVC... Basically what the board was saying, there's no evidence that we looked at that shows direct causation.

[00:17:52] Speaker 01:
Well, I think under this court's precedent, we also presume that the board considered all the evidence, and that would include at least all the evidence in the record.

[00:18:02] Speaker 03:
I know the cases you're relying on, but when you say that we're just going to presume that the board has looked at all relevant evidence, then if that's the case, there's Bozeman, you're overruling Bozeman.

[00:18:18] Speaker 01:
I don't think we're overruling Bozeman.

[00:18:21] Speaker 03:
Explain why not.

[00:18:22] Speaker 03:
I mean, Bozeman stands for the proposition, right, that you can have a remand to the board to make it look at evidence that it didn't consider.

[00:18:32] Speaker 03:
Why would you ever do that if you presume that the board has all looked at all the evidence?

[00:18:39] Speaker 01:
Well, I think that gets to the clear error sort of review that the Veterans Court did here on the factual finding.

[00:18:46] Speaker 01:
that there was no causal connection.

[00:18:48] Speaker 03:
And so had the... It wasn't clear error.

[00:18:57] Speaker 03:
Deciding whether or not there was harmless error, right?

[00:19:00] Speaker 03:
There's a legal analysis that's conducted by examining the document that supposedly to find out whether it was or was not harmless error to overlook it.

[00:19:12] Speaker 01:
I think here the Veterans Court really did both pieces.

[00:19:15] Speaker 01:
And so because it opened with the recognition, the board.

[00:19:22] Speaker 01:
You say the board or the CAVC?

[00:19:25] Speaker 01:
The CAVC, I think, did both a clear error review and a harmless error review on the factual finding.

[00:19:31] Speaker 03:
Can you point to me somewhere in the opinion where the word clear shows up next to the word error?

[00:19:38] Speaker 01:
No, but that's the standard for factual finding.

[00:19:41] Speaker 01:
So what the Veterans Court, and it's all on Appendix Page 8,

[00:19:44] Speaker 03:
I don't know that you need to spend time.

[00:19:48] Speaker 03:
Your adversary hasn't challenged this point.

[00:19:54] Speaker 03:
She hasn't challenged us, hasn't said to us that the CAVC made a mistake in finding that there was harmless air.

[00:20:06] Speaker 03:
And that's sufficient.

[00:20:08] Speaker 03:
So whether it was clear air or harmless air, it doesn't take you anywhere.

[00:20:13] Speaker 01:
It does not.

[00:20:13] Speaker 01:
I think the bigger point here is that the board made the fact finding that there was not a causal connection and the Veterans Court in its proper appellate role reviewed the arguments that Ms.

[00:20:28] Speaker 01:
Bales made to challenge that factual finding and found them insufficient, either through harmless error because the articles sort of were not even arguably favorable

[00:20:42] Speaker 01:
And then there were some issues that it found were not, were never, should have been raised, could have been raised to the board when, you know, relying on evidence that were not in the record and those that declined to consider on issue of exhaustion grounds.

[00:20:58] Speaker 01:
And so critically for this court in terms of its review,

[00:21:02] Speaker 01:
Obviously, this court can't review the fact findings or the application of a lot of facts.

[00:21:09] Speaker 01:
I think it therefore can't review and overturn the Veterans Court's determination.

[00:21:14] Speaker 03:
May I interrupt, please?

[00:21:17] Speaker 03:
Absolutely.

[00:21:20] Speaker 03:
As I think you heard me say to Ms.

[00:21:24] Speaker 03:
LaPazena, I'm reading footnotes two and three.

[00:21:29] Speaker 03:
in the opinion of the CBC at Appendix 9, footnote 2 to be rejecting Ms.

[00:21:37] Speaker 03:
Fales' what I call plural disease theory with regard to her bone marrow claims.

[00:21:43] Speaker 03:
And that I understand footnote 3 similarly to the bone marrow claims with regard to her DIC argument dealing with the cause of death, they're rejecting exhausting for the same reason.

[00:21:59] Speaker 03:
that those, well, the footnotes are dealing with what you describe in your brief as the new and novel pleural disease theory.

[00:22:09] Speaker 01:
Is that your understanding of the footnotes?

[00:22:18] Speaker 01:
Which of the of the theories exactly it's referring to, but I certainly do read.

[00:22:23] Speaker 01:
I agree with your honor that the two footnotes are that what the veterans court refused to consider there on issue exhaustion grounds were arguments that it found to be new and based on material that was not previously in the record.

[00:22:39] Speaker 03:
So if the argument is new, the, the argument that

[00:22:45] Speaker 03:
exposure to asbestos can directly cause the bone marrow disease, that's not new.

[00:22:51] Speaker 03:
So I think you're agreeing with me that footnotes two and three are referring to the new argument.

[00:22:59] Speaker 01:
Right.

[00:22:59] Speaker 01:
I mean, that's what the Veterans Court held is that's what it was declining to consider on issue exhaustion.

[00:23:05] Speaker 03:
I don't mean to be overly critical.

[00:23:07] Speaker 03:
You've heard me express what might be described as criticism of La Pazena for brief for not having

[00:23:15] Speaker 03:
filed a reply brief to frame these issues.

[00:23:18] Speaker 03:
But your brief and my judgment isn't really very clear in explaining how you were reading what it was that was being exhausted.

[00:23:29] Speaker 03:
And you've now clarified that for me, which is helpful.

[00:23:32] Speaker 03:
But it would have been easier for all of us if the briefs had clearly specified what your judgment is as to what was exactly being exhausted.

[00:23:46] Speaker 03:
That's a statement you don't need to respond to and continue with your argument.

[00:23:55] Speaker 01:
I mean, I think, again, at bottom, sort of our view here is that the Veterans Court applied this court's existing precedence.

[00:24:06] Speaker 01:
This court recognizes the possibility of issue exhaustion

[00:24:11] Speaker 01:
that the Veterans Court has discretion to apply that.

[00:24:13] Speaker 01:
That's what they did here.

[00:24:15] Speaker 03:
Right.

[00:24:16] Speaker 03:
As you appreciate from defending these cases, there is considerable concern in the Veterans Bar at the moment about what the Veterans Bar considers to be over application of the exhaustion doctrine.

[00:24:30] Speaker 03:
And you know that as well as I do, as well as the court does.

[00:24:34] Speaker 03:
In this particular case, we have an opinion from the CABC that is somewhat cryptic.

[00:24:39] Speaker 03:
because it isn't giving you a full explanation with precision as to how, for example, the Veterans Court dealt with the American Legion articles.

[00:24:53] Speaker 03:
So all I'm saying is that when you have a case with the opinion as, in some cases, as cryptic as it is, it's very helpful to this court if counsel appreciates

[00:25:07] Speaker 03:
the kind of opinion they're dealing with and addresses what are the obvious questions in their briefing to help us to appreciate exactly what is being held below.

[00:25:20] Speaker 01:
And we will certainly endeavor to do better in the future, Your Honor.

[00:25:25] Speaker 03:
As I said, to the extent that I'm being

[00:25:29] Speaker 03:
I'm necessarily harsh and critical of both of counsel.

[00:25:33] Speaker 03:
I don't mean to be that way.

[00:25:34] Speaker 03:
What I want to do is to engage with counsel on both sides to encourage you to help us be able to correctly decide these cases.

[00:25:45] Speaker 01:
Certainly, your honor.

[00:25:48] Speaker 01:
Anything further?

[00:25:49] Speaker 01:
I think I've made my point.

[00:25:52] Speaker 01:
So unless the court has further questions, which I'm happy to address,

[00:25:57] Speaker 01:
We would ask that the court either dismiss or affirm.

[00:26:00] Speaker 00:
Thank you.

[00:26:02] Speaker 00:
Ms.

[00:26:02] Speaker 00:
LaFazina, you have about four or five minutes.

[00:26:05] Speaker 02:
Your Honor, I would just ask the court to reverse and or remand the matter.

[00:26:11] Speaker 02:
And apologies to the court for failing to file a reply brief.

[00:26:14] Speaker 02:
That is the first time that I have done that with the federal circuit.

[00:26:20] Speaker 02:
And I have learned my lesson.

[00:26:23] Speaker ?:
OK.

[00:26:24] Speaker 03:
Well, we thank you.

[00:26:25] Speaker 03:
Could I just make one more comment, Ms.

[00:26:28] Speaker 03:
Lopatina?

[00:26:31] Speaker 03:
Sure.

[00:26:31] Speaker 03:
Thank you very much for your candor.

[00:26:34] Speaker 03:
It's very important, very important for this court to have private counsel stand up and present fine arguments to this court on behalf of the veterans of our country.

[00:26:45] Speaker 03:
And I want to thank you for that.

[00:26:47] Speaker 03:
In this particular case, without trying to sound unusually harsh,

[00:26:52] Speaker 03:
Your failure to file a reply brief at the CAVC probably hurt you more than your failure to file a reply brief here, because it's clear to me at least that your attempt to gain benefit from the American Legion articles was undone because the CAVC chose to simply accept the Secretary's view of that matter instead of yours because of what the CAVC in its opinion referred to

[00:27:21] Speaker 03:
for the unrebutted reasons stated by the secretary.

[00:27:25] Speaker 03:
So I would advise you to be careful and watch out for what happens at the CAVC because you now see what can happen if you don't rebut the secretary's argument with a reply brief.

[00:27:39] Speaker 02:
But thank you for your guidance, Your Honor.

[00:27:42] Speaker 03:
I'm in a lecturing mode today, and I apologize to both counsel and to my colleagues for that.

[00:27:50] Speaker 02:
No, Your Honor, I'm still learning.

[00:27:52] Speaker 02:
I'm still learning.

[00:27:55] Speaker 02:
And it's an honor to be before this Court.

[00:27:56] Speaker 02:
And I'm doing my best.

[00:27:58] Speaker 02:
And I appreciate all of the constructive comments.

[00:28:02] Speaker 02:
So thank you.

[00:28:03] Speaker 03:
Well, I noticed in your brief that Kenneth Carpenter has been on your side to some extent with regard to this case, showed him as showing perhaps an amicus brief at some point.

[00:28:19] Speaker 03:
But Mr. Carpenter is very, very skilled, and you'd be well to study with him.

[00:28:27] Speaker 00:
Well, we thank both.

[00:28:29] Speaker 00:
I do.

[00:28:30] Speaker 03:
Thank you.

[00:28:31] Speaker 00:
Thank you.

[00:28:32] Speaker 00:
We thank both counsel.

[00:28:33] Speaker 00:
The case is submitted, and that concludes our proceeding for this morning.