[00:00:00] Speaker 02:
Our next case is Kevin Golden versus the Secretary of Veterans Affairs, 2023, 2070.

[00:00:09] Speaker 00:
Good morning and may it please the court.

[00:00:11] Speaker 00:
During Mr. Golden's Navy service, he was exposed to acoustic trauma on a ship and he now has tinnitus and hearing loss.

[00:00:19] Speaker 00:
There's uncontroverted medical evidence that Mr. Golden's tinnitus is at least as likely as not a symptom of his hearing loss, but he's been granted service connection for only his tinnitus.

[00:00:30] Speaker 00:
Mr. Golden has not received or been granted service connection for his hearing loss, even though the two disabilities are inextricably linked.

[00:00:38] Speaker 00:
That is because under the Secretary's and Veterans Court's legal interpretation of Section 3.310A for secondary service connection, Mr. Golden's hearing loss must arise after and as a result of his service-connected tinnitus.

[00:00:53] Speaker 00:
The Secretary's and Veterans Court's legal interpretation is wrong.

[00:00:58] Speaker 00:
Under the correct interpretation of the regulation, it allows for an additional evidentiary avenue to receive service connection where an already service-connected disability can be used to provide the missing link between a second separate disability and an in-service injury or disease where there's medical evidence associating the service-connected disability with the secondary condition.

[00:01:23] Speaker 00:
Starting first.

[00:01:24] Speaker 01:
What are your definitions of the secondary condition versus the original condition?

[00:01:31] Speaker 00:
I believe you're referring to the second sentence of the regulation.

[00:01:35] Speaker 00:
And I believe in the Manzanaras case, this court discussed the VA's interpretation of what they believe that that second sentence means.

[00:01:45] Speaker 00:
And really what it means is that in the eyes of the VA, once secondary service connection has been established,

[00:01:52] Speaker 00:
that the secondary condition is to be afforded the exact same effect as the primary condition.

[00:01:56] Speaker 00:
It doesn't have any sort of causal relationship requiring the primary condition to be what causes the secondary condition.

[00:02:04] Speaker 00:
It's really just establishing that in the eyes of entitlement, they're to be afforded the exact same effect.

[00:02:12] Speaker 00:
So starting first with the words of the regulation itself.

[00:02:16] Speaker 00:
Section 3.310A states that a secondary disability or condition shall be service-connected if that disability is approximately due to or the result of a service-connected injury or disease.

[00:02:30] Speaker 00:
Section 3.310A does not require by its words that the secondary condition arise from or be the result of the primary disability.

[00:02:40] Speaker 00:
And if the VA had wanted to draft the regulation that way, it could.

[00:02:43] Speaker 00:
It instead shows

[00:02:45] Speaker 00:
to require it to be approximately due to or the result of the service-connected disease or injury.

[00:02:52] Speaker 00:
And as the secretary has conceded, in the context of Frigate USC Section 1110, which is the authorizing statute for this regulation, the terms disability and disease or injury have different meanings.

[00:03:06] Speaker 00:
And despite

[00:03:07] Speaker 00:
acknowledging and conceding that these terms have different meanings, the secretary continues to replace the word disease or injury in the regulation of the first sentence with the word disability.

[00:03:19] Speaker 03:
Haven't we always interpreted secondary service connection as meaning that the secondary condition is the result of the first condition?

[00:03:28] Speaker 00:
I don't think that's necessarily true.

[00:03:30] Speaker 00:
Necessarily?

[00:03:32] Speaker 00:
I don't think that is true.

[00:03:34] Speaker 00:
The cases that the secretary relies on, chiefly, is a Veterans Court case, which is Ross against Peek, where this arises from and is the result of language comes from.

[00:03:46] Speaker 00:
And in Ross against Peek, the Veterans Court only cites to the regulation for supporting that notion.

[00:03:52] Speaker 00:
But as I just mentioned, the regulation itself talks about the secondary condition being the result of the disease or injury, not the service-connected disability.

[00:04:03] Speaker 00:
And really what secondary service connection is meant to provide is it's meant to allow this additional evidentiary avenue for an already service-connected disability to provide the missing link and really show that where it's associated with the secondary condition, you can kind of go back up the chain and trace back from the secondary condition to the in-service injury by way of the service-connected disability and its association.

[00:04:32] Speaker 00:
So really, there isn't this requirement that the secondary condition be caused by the primary condition or the service-connected disability.

[00:04:41] Speaker 00:
It's any sort of evidence linking the two disabilities together is enough to show that there should be service connection in this case back to the same in-service disease or injury.

[00:04:54] Speaker 01:
One of your arguments is that the Veterans Court did improper facts.

[00:04:58] Speaker 01:
Yes.

[00:04:58] Speaker 01:
Can you point me to where in the record

[00:05:01] Speaker 01:
it would reflect this totally improper fact finding.

[00:05:07] Speaker 00:
Yes.

[00:05:07] Speaker 00:
So this would be in the Veterans Court's decision on Appendix Page 9.

[00:05:14] Speaker 00:
And the Veterans Court made two improper fact findings about five or six lines up from the conclusion.

[00:05:21] Speaker 00:
The first is the Veterans Court stated, notably, the board granted service connection for tinnitus based on Mr. Golden's lay statements, not the 2011 exam.

[00:05:30] Speaker 00:
And what the Board is referring to here is the, or what the Veterans Court is referring to here is the Board's 2017 decision granting service connection for tinnitus.

[00:05:40] Speaker 00:
If you look at that decision, which is on Appendix Page 2525, nowhere does it say we're granting service connections solely on the basis of the Veterans Lay Statement.

[00:05:53] Speaker 00:
It instead mentions that it's considered the totality of the evidence in granting service connection for tinnitus.

[00:05:59] Speaker 00:
The second improper, impermissible first instance fact finding is that no subsequent examiner linked the veteran's hearing loss to his service-connected tinnitus, which is the next sentence.

[00:06:10] Speaker 00:
This was also not a finding that the board had ever made.

[00:06:14] Speaker 00:
And it seems sort of irrelevant because there isn't any sort of later medical opinion that goes the other way, that cuts the other way and says that there was no association between the tinnitus and the hearing loss later on.

[00:06:29] Speaker 02:
Do you know that it's pronounced tinnitus rather than tinnitus?

[00:06:34] Speaker 00:
I believe it is pronounced tinnitus.

[00:06:36] Speaker 00:
That's how I've heard it pronounced.

[00:06:38] Speaker 00:
So that's the pronunciation that I've stuck with.

[00:06:44] Speaker 00:
So going back to the, unless there's any further questions on the impermissible fact findings, going back to the issue of the interpretation of the regulation, the secretary seems to agree with

[00:06:57] Speaker 00:
our interpretation except for this add-on that the secondary condition must arise after and result of the primary condition.

[00:07:05] Speaker 00:
And this is exemplified on page 16 of the secretary's brief where he refers to a correct interpretation of section 3.310a as the service-connected disability may provide a link that would not otherwise exist between an in-service disease or injury and the secondary condition.

[00:07:23] Speaker 00:
And that is exactly what we are advocating for here, that you can use this association between an already service-connected disability and a secondary condition to provide that missing link to trace the service-connected or the secondary condition back to the in-service injury through the service-connected disability.

[00:07:46] Speaker 00:
The secretary also relies on this court's decision regarding the effective dates of and the treatment of the effective dates of a primary condition and a secondary condition, particularly in view of the second sentence of the regulation that discusses the original and secondary condition.

[00:08:03] Speaker 00:
But these decisions from this court do not cut against or do not really support the secretary's interpretation of the regulation.

[00:08:13] Speaker 00:
In Ellington against Peek, this court determined that the second sentence of section 3.310a does not set out a per se rule requiring identical effective dates for primary and secondary conditions, and that such a per se rule would be illogical because the secondary condition may arise years after the primary condition.

[00:08:34] Speaker 00:
So Ellington merely recognizes that the secondary condition could arise after the onset, could arise after the onset of the primary condition.

[00:08:41] Speaker 00:
It does not foreclose the possibility that the secondary condition occur at the same time as the primary condition or even before the primary condition.

[00:08:51] Speaker 01:
Do you agree that there was an exam after 2011 that linked Mr. Golden's hearing loss to his tinnitus?

[00:09:00] Speaker 01:
Do you agree that there was not an exam after 2011 that linked Mr. Golden's hearing loss to his

[00:09:06] Speaker 01:
tinnitus or tinnitus.

[00:09:08] Speaker 01:
I don't know how to pronounce it.

[00:09:09] Speaker 00:
Yeah, I would agree that there isn't a second examination after the 2011 one that links the two together again.

[00:09:17] Speaker 00:
But there isn't an examination saying somehow un-linking the two or saying that the tinnitus is not a symptom of the hearing loss.

[00:09:25] Speaker 00:
So I think all the evidence that we have about the connection between the two is that they're linked together as the tinnitus is a symptom of the hearing loss.

[00:09:37] Speaker 02:
Isn't this ultimately a question of fact?

[00:09:40] Speaker 00:
No, I don't think it's ultimately a question of fact because of how the Veterans Court interpreted Section 3.310A as requiring the tinnitus, the service-connected disability, to be the cause of the hearing loss, the secondary condition.

[00:09:57] Speaker 00:
We believe that's a legal interpretation of the regulation in that it's not

[00:10:01] Speaker 00:
the primary service-connected disability that is what needs to cause the secondary condition.

[00:10:08] Speaker 00:
It's instead the in-service injury or disease that's the cause of the secondary condition.

[00:10:13] Speaker 00:
It's just the evidence that you look at to get that service connection between the two.

[00:10:18] Speaker 00:
So instead of a direct link between the secondary condition and the in-service injury, what secondary service connection allows for is you to trace back through its association with the primary service-connected disability

[00:10:31] Speaker 00:
to connect the secondary condition to the in-service injury.

[00:10:36] Speaker 03:
In other words, you can dispense with proof of service connection for the hearing loss.

[00:10:42] Speaker 00:
You can dispense with direct service connection for the hearing loss.

[00:10:48] Speaker 00:
It seems like the regulation allows for, kind of gives credit for establishing service connection for one disability.

[00:10:54] Speaker 00:
And if you can show that that one disability is associated with another disability, that you can then use the fact that the first one's service-connected to demonstrate or use it as evidence that the second one should also be service-connected to that same in-service injury.

[00:11:18] Speaker 00:
So based on the text of section 3.310A, the Veterans Court's interpretation requiring that the secondary condition arise after or as the result of the primary condition is erroneous.

[00:11:31] Speaker 00:
The regulation merely requires that the disability sought to receive secondary service connection be proximally due to or the result of the service-connected or in-service injury or disease.

[00:11:44] Speaker 00:
That is, the regulation allows for a veteran to use

[00:11:47] Speaker 00:
already service-connected disability to demonstrate that another related disability should be service-connected as resulting from the same in-service injury.

[00:11:57] Speaker 00:
If there's no other questions, I'll reserve the remainder of my time for a moment.

[00:12:12] Speaker 04:
I want to start with one broad point and then talk about the text of the regulation here, 3.310.

[00:12:20] Speaker 04:
When a veteran suffers from a present-day disability that he or she contends is related to service, to show service connection, there are two broad paths.

[00:12:28] Speaker 04:
You can show a direct service connection by showing that there is an in-service event that provides a nexus between the current disability and the in-service event.

[00:12:38] Speaker 04:
Or you can show a secondary service connection, which is that there may not be that nexus between an in-service event and the current disability.

[00:12:45] Speaker 04:
But the current disability arises from is causally related to another service-connected disease or injury.

[00:12:53] Speaker 04:
And I do agree.

[00:12:54] Speaker 04:
I don't believe this court has ever made that holding expressly.

[00:12:58] Speaker 04:
Certainly the Veterans Court has.

[00:12:59] Speaker 04:
But it is clearly an underlying principle that this court has accepted for decades as a foundational rule of how to evaluate veterans' claims.

[00:13:07] Speaker 04:
In here, Mr. Golden presented a claim for direct service connection for his hearing loss.

[00:13:13] Speaker 04:
That claim was denied based upon the record evidence, and that has not been appealed.

[00:13:18] Speaker 04:
Mr. Golden contended before the Veterans Court that the record that was presented implicitly raised a claim of secondary service connection, which the Veterans Court rejected.

[00:13:29] Speaker 04:
And the reason the Veterans Court rejected it is because there was nothing in the record suggesting that causal relationship between the primary service-connected condition, which was the tinnitus, and the secondary condition that he claims was presented by the record, which was the hearing loss.

[00:13:44] Speaker 04:
I'd like to point the Court to the reply brief at page 13, which I think has the best encapsulation of Mr. Golden's understanding of the facts of his case and how they relate to the regulatory text.

[00:13:57] Speaker 04:
So at 13,

[00:13:59] Speaker 04:
he lays out two points where he says, first, his tinnitus is service-connected to an in-service injury of acoustic trauma.

[00:14:08] Speaker 04:
And second, the tinnitus is associated with the hearing loss through an unchallenged medical opinion.

[00:14:12] Speaker 04:
And those are the two things he contends make this a secondary service connection issue under 3.310A.

[00:14:21] Speaker 04:
Now, I would say that

[00:14:24] Speaker 04:
Number one is false as a matter of fact.

[00:14:27] Speaker 04:
Number two is true as a matter of fact.

[00:14:28] Speaker 04:
But both don't really address anything related to the text of the regulation.

[00:14:33] Speaker 04:
So if we look at the regulation, what the regulation requires is a disability.

[00:14:39] Speaker 03:
The text of the regulation is on 21 of the blue group.

[00:14:45] Speaker 04:
I believe that's right, Your Honor.

[00:14:46] Speaker 04:
Let me just double check before I misstate that.

[00:14:59] Speaker 04:
Yes, Your Honor.

[00:15:02] Speaker 04:
So a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected.

[00:15:11] Speaker 04:
And so here, just looking at the plain words, the two statements that Mr. Golden makes in his reply at page 13 don't align with what the regulation requires.

[00:15:22] Speaker 04:
First, he says that tinnitus is service-connected to an in-service injury of acoustic trauma.

[00:15:29] Speaker 04:
What the regulation requires is a service-connected disease.

[00:15:34] Speaker 04:
The acoustic injury is not service-connected.

[00:15:36] Speaker 04:
Service-connected is a term of art.

[00:15:38] Speaker 04:
That means a present-day disability that is related to an in-service injury with the proper nexus.

[00:15:46] Speaker 04:
What is service-connected here is his tinnitus.

[00:15:50] Speaker 04:
There is no service-connected acoustic trauma.

[00:15:54] Speaker 04:
That's never been a holding.

[00:15:55] Speaker 04:
That's never been a claim that he has made.

[00:15:58] Speaker 04:
So that is the problem with the first part of his logical statement.

[00:16:02] Speaker 04:
The problem with the second part of his logical statement is he says, it's enough to say that tinnitus is associated with hearing loss, but the regulation requires more.

[00:16:10] Speaker 04:
It needs to be proximately due to or the result of the service-connected injury or disease.

[00:16:20] Speaker 04:
And those words require some form of causality.

[00:16:24] Speaker 04:
Now, this court recently addressed in Spicer that it doesn't need to be direct causality.

[00:16:29] Speaker 04:
There can be some intermediate steps that get you from the service-connected disease or injury to the current disability that may be secondarily connected.

[00:16:37] Speaker 04:
But there has to be a causal flow of some sort.

[00:16:42] Speaker 04:
And that's the piece that the Veterans Court found was missing here, that there was no evidence in the record whatsoever sufficient

[00:16:48] Speaker 04:
to present an implicit claim, suggesting that there's that causal relationship between the hearing loss and the tinnitus.

[00:16:55] Speaker 04:
Everyone accepts as a medical principle that they can occur similarly.

[00:16:59] Speaker 04:
They can arise from a similar condition.

[00:17:02] Speaker 04:
But the hearing loss here, as the record showed, wasn't present in service, didn't arise until many, many years after the fact.

[00:17:10] Speaker 04:
And in that factual posture, the Veterans Court held that it wasn't sufficiently raised implicitly by the record.

[00:17:17] Speaker 03:
Has anybody looked at the Federal Register Notice adopting this regulation to see what it means?

[00:17:23] Speaker 04:
I believe we cited to some of the other Federal Register Notices related to this provision.

[00:17:28] Speaker 04:
I don't know that there was anything specifically addressing the argument that's being presented here in the original Federal Register Notice.

[00:17:37] Speaker 04:
I don't believe so.

[00:17:38] Speaker 04:
At least I'm not aware of any standing here.

[00:17:40] Speaker 04:
I may have missed one.

[00:17:45] Speaker 04:
So that is our understanding as to how his particular arguments relate to the regulation.

[00:17:50] Speaker 04:
Unless the court has other questions at that point, I do want to address the question of whether this whole exercise involved in proper fact finding.

[00:17:57] Speaker 01:
I definitely want to go there, but I want to ask one more question in this regard.

[00:18:02] Speaker 01:
Do you think their disability and disease or injury mean different things?

[00:18:06] Speaker 01:
I think I heard at least a kernel of that argument.

[00:18:09] Speaker 01:
raised by the other side.

[00:18:11] Speaker 01:
And I just wanted to hear yourself.

[00:18:12] Speaker 01:
They do.

[00:18:12] Speaker 04:
And I believe this court has addressed that before.

[00:18:14] Speaker 04:
But VA's understanding is that the disability is really referring to the impairment of function that is compensable.

[00:18:21] Speaker 04:
So when referring to the disability, you're assessing the veteran in the present moment, seeing what impairments they may have in terms of social or occupational functioning.

[00:18:30] Speaker 04:
And that's what dictates the amount of compensation they're entitled to under the regulations.

[00:18:34] Speaker 04:
A disease or injury is, what everybody would understand it to be, some sort of medical condition.

[00:18:39] Speaker 04:
It may or may not cause a disability.

[00:18:42] Speaker 04:
And that's why we have non-compensable ratings, for example, that 0%, where you might have a disease or injury, but it does not impair your function in a way that's recognizable.

[00:18:52] Speaker 04:
So those are distinct in that fashion.

[00:18:55] Speaker 04:
And I do want to point out, since I think that was an argument that was a central feature of Mr. Golden's brief,

[00:19:02] Speaker 04:
We don't really disagree with that.

[00:19:03] Speaker 04:
And I think that's sort of missing the point of what the Veterans Court itself was holding.

[00:19:08] Speaker 04:
I do agree that the Veterans Court did make that substitution about disability versus injury or disease.

[00:19:15] Speaker 04:
And that, I think, is just a misstatement of the regulation.

[00:19:18] Speaker 04:
But I don't think it's a material one, because the point the Veterans Court was lying on was the lack of evidence of causality.

[00:19:25] Speaker 04:
And that, I think, is not necessarily directly addressed in Mr. Golden's briefing.

[00:19:31] Speaker 04:
But it's the point that's really dispositive here.

[00:19:32] Speaker 04:
The regulation plainly requires causality.

[00:19:34] Speaker 04:
It has to be due to or the result of the causal language.

[00:19:38] Speaker 04:
And that's the piece that was missing here.

[00:19:42] Speaker 04:
And so turning, then, briefly to whether there was improper fact finding.

[00:19:46] Speaker 04:
What this Court has held in Tadlock

[00:19:55] Speaker 04:
I believe Stinson's most recent case in 2024, was that the Veterans Court is not permitted to make findings of fact in the first instance.

[00:20:06] Speaker 04:
What the court is doing in this exercise is not making any findings a fact.

[00:20:11] Speaker 04:
It's making an assessment of the record.

[00:20:13] Speaker 04:
And it's not resolving disputes.

[00:20:14] Speaker 04:
It's not getting to the truth of any matter.

[00:20:17] Speaker 04:
It's simply assessing what is the evidence presented, and does it rise to a legal threshold sufficient to show the possibility that a claim was implicitly presented, at which point, of course, remand would be required and the board would have to evaluate the merits of that claim, both factually and legally.

[00:20:33] Speaker 04:
And that's exactly what this court instance instead was permissible.

[00:20:36] Speaker 01:
Can you take a look at the particular page that opposing counsel point us to and give us your take on whether or not that is any form of fact finding?

[00:20:45] Speaker 01:
I think it was JA9?

[00:20:46] Speaker 04:
Yes, it was, Your Honor.

[00:20:48] Speaker 04:
Appendix 9.

[00:20:48] Speaker 04:
And the two statements there, first is that the board granted service connection for tonight is based on Mr. Golden's lay statements, not the 2011 exam.

[00:20:58] Speaker 04:
First of all, that's just indisputably true.

[00:21:01] Speaker 04:
And we can look at appendix 2529, which was that board decision.

[00:21:07] Speaker 04:
And it lays out that the key point was simply, did Mr. Golden suffer from tinnitus?

[00:21:17] Speaker 04:
And was that something that had occurred in service or could be traced back to his service in a way necessary to establish the nexus?

[00:21:25] Speaker 04:
I think it's important to understand here, tinnitus, it's a ringing in the ear.

[00:21:29] Speaker 04:
It's not objectively observable.

[00:21:32] Speaker 04:
There's no tests that a medical professional can perform to prove the existence of tinnitus.

[00:21:37] Speaker 04:
It's really based exclusively on the veteran's subjective reporting of what they're hearing in their own head.

[00:21:44] Speaker 04:
And the veteran provided that statement, provided that evidence, made reports to the medical examiner that he had in fact suffered tinnitus going all the way back to service.

[00:21:52] Speaker 04:
The board credited those statements and found at a minimum that they put the evidence in relative equipoise, provided benefit of the doubt to the veteran, and granted service connection.

[00:22:02] Speaker 04:
So that was the fundamental basis for the award.

[00:22:05] Speaker 04:
So it's a true statement.

[00:22:06] Speaker 01:
So what would you describe

[00:22:08] Speaker 04:
the Veterans Court is doing in these two sentences on Appendix Page 9.

[00:22:24] Speaker 04:
the tribunal's truth-seeking function.

[00:22:27] Speaker 04:
It's not evaluating competing versions, or even maybe uncontested versions, but stating what is true under the appropriate standard of evidence.

[00:22:35] Speaker 04:
It's simply evaluating the record, seeing what exists or doesn't exist in the record, and then providing a statement as to whether that meets a legal sufficiency threshold to require further legal evaluation.

[00:22:47] Speaker 04:
And that's all it is.

[00:22:48] Speaker 04:
And as Stinson said, precisely that exercise is not fact-finding and is something that the Veterans Court

[00:22:53] Speaker 04:
is not only empowered to do, but is required to do, in many instances, under its jurisdictional authority.

[00:22:59] Speaker 04:
And unless there are other questions that we will ask of you first.

[00:23:03] Speaker 02:
Thank you, counsel.

[00:23:04] Speaker 04:
Thank you.

[00:23:07] Speaker 02:
Mr. MacDonald.

[00:23:14] Speaker 00:
I just have a few points I'd like to make.

[00:23:16] Speaker 00:
I think the secretary admitted in his argument that they're basically rewriting the regulations so that it makes more sense and aligns with their interpretation of secondary service connection.

[00:23:27] Speaker 00:
He mentioned several times that you have to look at the causation standard and what it's due to or the result of.

[00:23:34] Speaker 00:
But it's important to look at what the regulation actually says it must be due to or the result of.

[00:23:39] Speaker 00:
And it's not the service-connected disability.

[00:23:41] Speaker 00:
It's the service-connected injury or disease.

[00:23:44] Speaker 00:
As Judge Cunningham pointed out, those have different meanings.

[00:23:47] Speaker 00:
The disability is the functional impairment that's occurred, while the injury or disease is essentially the trauma or the harm or hurt that occurred as a result of an external force.

[00:23:59] Speaker 00:
So the Veterans Court's rewriting of the regulation to make it

[00:24:05] Speaker 00:
make more sense and align with its interpretation is improper, because you need to look at what has to cause the disability.

[00:24:16] Speaker 00:
The second point I'd like to make, I believe Judge Dyke asked if the Federal Register touches on any of this, and it does not.

[00:24:23] Speaker 00:
I just wanted to confirm that we looked into this, and it does not touch on any interpretation of these exact words from the regulation.

[00:24:34] Speaker 00:
One other point I would like to make, and it's made on pages three and four of the gray brief, is that the Veterans Court has used the, as a result of a service-connected disability language in other regulations.

[00:24:48] Speaker 00:
And that's, in particular, it's 38 CFR section 3.383, where it requires, for example, impairment of vision in one eye as a result of service-connected disability and impairment

[00:25:02] Speaker 00:
division of the other eye as a result of service-connected disability and provides an avenue for service connection that way.

[00:25:09] Speaker 00:
The VA did not invoke that same language here and instead chose to invoke service-connected injury or disease.

[00:25:17] Speaker 00:
So some effect has to be given to that difference in language that was used.

[00:25:22] Speaker 00:
And then finally, I'd like to make one point about the impermissible factual findings.

[00:25:27] Speaker 00:
In particular, the first one having to do with the board not granting service connection for attendance based on the 2011 exam as opposed to those lay statements.

[00:25:38] Speaker 00:
If you look at the 2017 board decision on appendix page 2528, the second to last paragraph on the page discusses the 2011 VA examiner

[00:25:50] Speaker 00:
examination and the association of the veteran's tenants with his hearing loss and that's where the hearing loss or the tenants was diagnosed.

[00:25:59] Speaker 00:
So it's discussed in the board's decision and then when granting service connection for tenants, the board on page

[00:26:04] Speaker 00:
2529 states in consideration of all the evidence of the record.

[00:26:09] Speaker 00:
So I think that's an impermissible factual finding by the Veterans Court to say that the board did not rely on the 2011 VA examination in making that finding.

[00:26:19] Speaker 01:
But in consideration, why is that not making an assessment as opposing counsel argued just a few minutes ago?

[00:26:26] Speaker 00:
Why is that not making an assessment of?

[00:26:28] Speaker 01:
Well, I thought what I heard when I was listening to what you just stated was something about

[00:26:33] Speaker 01:
You're pointing to this inconsideration statement as supporting impermissible fact finding.

[00:26:39] Speaker 01:
But what I was potentially hearing was that may more so be better described as an assessment being made, which I think is what opposing counsel argued just a few minutes ago.

[00:26:49] Speaker 01:
I want you to respond to that.

[00:26:51] Speaker 00:
Yes.

[00:26:52] Speaker 00:
I think it's not an assessment of the evidence.

[00:26:55] Speaker 00:
It's more going towards the, it's kind of casting doubt on whether the merits of a secondary service connection claim could be viable.

[00:27:03] Speaker 00:
by basically saying, oh, the tinnitus has nothing to do with this hearing loss association that was found in the 2011 VA examination, and instead just has to do with the lay statements.

[00:27:13] Speaker 00:
So I think what the veterans were doing is pushing the evidence kind of away from what we contend to be the relevant evidence, this 2011 examination that links the hearing loss with the tinnitus, and instead says, no, it's not that, it's lay statements that the veteran made.

[00:27:30] Speaker 00:
There's no further questions.

[00:27:32] Speaker 00:
Thank you.

[00:27:32] Speaker 02:
Thank you to both counsel locations submitted.