[00:00:00] Speaker 01:
We will hear argument next in case number 241379, Jenkins against Collins.

[00:00:08] Speaker 00:
May it please the court, this case presents an important question of whether VA may decide, regardless of evidence, that a veteran enters his service with a drug and alcohol abuse disorder.

[00:00:19] Speaker 00:
This court should review this appeal because it satisfies the Williams factors and presents unusual circumstances.

[00:00:27] Speaker 00:
As for a clear and final ruling on a legal issue, the board found that there was clear and unmistakable evidence that Mr. Jenkins had a cannabis use disorder that pre-existed his service.

[00:00:39] Speaker 00:
Counsel asked the Veterans Court to reverse that finding because there was no evidence, let alone clear and unmistakable evidence that he entered service with a cannabis use disorder.

[00:00:48] Speaker 00:
The Veterans Court acknowledged the board's finding and then found that there was no finding to reverse.

[00:00:56] Speaker 00:
This

[00:00:57] Speaker 00:
was the clear and final legal ruling, namely that the presumption of soundness 38 USC 1111 affords Mr. Jenkins no protection from the board finding that he entered service with a cannabis use disorder.

[00:01:12] Speaker 01:
And I realize this question gets ahead of the Williams jurisdiction question.

[00:01:22] Speaker 01:
that proposition, the proposition that you are saying is a legal question presented.

[00:01:29] Speaker 01:
Didn't Morris answer that question in favor of the government, that for a non

[00:01:36] Speaker 01:
I think the language was, if a condition is not an injury or disease within the scope of 1110, then 1111 and the presumption of soundless soundness simply do not come into play.

[00:01:51] Speaker 01:
Well, it's a slightly different era because the statute was a little different, but this one's even stronger perhaps.

[00:01:57] Speaker 00:
Yes.

[00:01:58] Speaker 00:
Morris, I believe, dealt with 3.304C, which had to do with the types of conditions that by their very nature would be a lifelong type of condition, not something that would be caused by service.

[00:02:11] Speaker 00:
Refractive errors, personality disorders, whereas a cannabis abuse disorder or a substance abuse disorder in general

[00:02:20] Speaker 00:
is not something that is a lifelong condition.

[00:02:22] Speaker 00:
It's not something where if you have it at 20 you can assume that you also, you know, had it at 10 years old or that without any type of service atmosphere it would have developed anyway.

[00:02:32] Speaker 00:
In fact, alcohol and drug abuse are known to often be secondary to psychiatric conditions.

[00:02:39] Speaker 00:
So I think that that's where this issue is distinct from Morris.

[00:02:45] Speaker 00:
The legal ruling that 1111 would allow VA to or would not protect Mr. Jenkins from being presumed to enter service with a cannabis use disorder was separate from the remand.

[00:02:58] Speaker 00:
The remand instructions were to obtain records, issue a supplemental statement of the case, address the adequacy of a medical opinion.

[00:03:06] Speaker 00:
But none prohibited VA from relying on this supposition that he entered service with a cannabis use disorder when re-adjudicating the claim.

[00:03:14] Speaker 00:
And that's something that will directly govern the remand.

[00:03:17] Speaker 03:
But won't it be reviewable on appeal after remand?

[00:03:22] Speaker 00:
I believe that what you're getting at is whether or not the time is now to review it or the time is later.

[00:03:29] Speaker 03:
Well, I'm getting at that that's the third Williams factor, that there's a substantial risk that it wouldn't survive a remand.

[00:03:36] Speaker 03:
So if it would be reviewable on appeal after remand, you haven't met the Williams criteria.

[00:03:42] Speaker 00:
I think that there is the substantial risk factor that the remand won't survive.

[00:03:47] Speaker 00:
Under Williams... What does that mean?

[00:03:50] Speaker 00:
It means that when you have the presumption of sound as violated, because the burden is on the government... Let me put it simply.

[00:03:57] Speaker 03:
If you go back down and your client loses again because they apply this legal view that you think is wrong, you can appeal it again, right?

[00:04:05] Speaker 00:
Yes, but in the interim they can generate more evidence that goes towards that idea of pre-existence.

[00:04:12] Speaker 03:
Well, they're going to generate more evidence anyway, because even if we agree with you, it's going to go back down to them, and they're going to look at the case again.

[00:04:19] Speaker 03:
What we're asking this court to do.

[00:04:20] Speaker 03:
We're not going to do that.

[00:04:23] Speaker 03:
OK.

[00:04:24] Speaker 03:
I believe that in Worley, for example.

[00:04:28] Speaker 03:
Can you just answer my question?

[00:04:29] Speaker 03:
Are you saying somehow that if it goes back down and you lose, you will not be able to appeal this legal issue?

[00:04:39] Speaker 03:
That's not what I'm saying.

[00:04:41] Speaker 03:
Well, then you're out on three.

[00:04:43] Speaker 03:
Unless your answer is you might go back down, and your client might get all the benefits he's entitled to, and then you don't need to appeal at all.

[00:04:52] Speaker 00:
From what I understand, the substantial risk factor, especially as applied.

[00:04:55] Speaker 03:
The Williams criteria is almost always used by the government, because the Veterans Court gets a legal issue wrong, and they don't have to go through the whole process of a remand, because if the board awards

[00:05:10] Speaker 03:
benefits under a wrong legal determination, they can't appeal to the Veterans Court.

[00:05:15] Speaker 03:
So they get to come up to us.

[00:05:17] Speaker 03:
You, the veterans, almost always, except in rare cases, can seek appeal after remand.

[00:05:24] Speaker 00:
My understanding of the Williams factors is that it was based on, there are three cases that are footnoted in Williams.

[00:05:30] Speaker 00:
One is Allen, and that was a veteran's appeal.

[00:05:32] Speaker 00:
One is Danboff, that was also a veteran's appeal.

[00:05:34] Speaker 00:
And one was Adams, which was also a veteran's appeal.

[00:05:36] Speaker 03:
Can you just answer my question?

[00:05:38] Speaker 03:
Do you think you would be prohibited from raising the legal argument you made if you lose on remand?

[00:05:44] Speaker 00:
I think that I could be because the factual evidence would have changed because VA would be able to change what evidence there is.

[00:05:52] Speaker 00:
Basically, this court has held that to rebut the presumption of soundness, you can use medical opinions that are generated after service.

[00:06:00] Speaker 00:
So if this case goes back without this question being resolved, VA could try to generate more evidence to say, look, there was a pre-existing disorder, but that evidence isn't there right now, which is why a ruling on the presumption of soundness issue that also prohibits further development on that is essential at this stage.

[00:06:18] Speaker 03:
What's the legal basis for saying we would order them to not further develop the case?

[00:06:25] Speaker 00:
Again, I think I just cited from Worley, but that was also something that was stated in Adams, where it said that if the purpose of a remand could be to generate more evidence with respect to the presumption of soundness, then that would be prohibited.

[00:06:39] Speaker 00:
But in Adams, that wasn't the purpose.

[00:06:41] Speaker 00:
The purpose was to address whether the evidence was sufficient to rebut it in the first instance, not to generate more evidence.

[00:06:48] Speaker 00:
Here, there is the substantial risk that if we send it down with this presumption of soundness question,

[00:06:53] Speaker 00:
undecided, it will be a different evidentiary record when it comes back here.

[00:07:00] Speaker 00:
And this court cannot make findings of application to law of facts.

[00:07:04] Speaker 00:
So the problem is that right now on this record, there is no evidence of pre-existence, no legally cognizable evidence.

[00:07:11] Speaker 00:
But if it goes back down, VA could ask for further medical opinions to try to build that case, and that would prevent us from getting review in this court.

[00:07:20] Speaker 00:
That is where this is somewhat on all fours with Adams.

[00:07:24] Speaker 00:
Although Adams did end up going back to a remand, that is where I believe this court would have jurisdiction.

[00:07:31] Speaker 00:
And that is where there is that substantial risk because of this court's jurisdictional limitations on application of law to facts or unfactual questions.

[00:07:46] Speaker 00:
Again, I would ask you to look at Dambach, which was a case on 1154B, which again went to the evidentiary burden that the veteran would have to prove on a remand.

[00:07:57] Speaker 00:
There was no impossibility.

[00:07:59] Speaker 00:
He could have lost and appealed later on, but it was the fact that it went to the evidentiary burdens that was the reason why this courtship jurisdiction.

[00:08:06] Speaker 00:
Similarly, in Allen v. Principi,

[00:08:08] Speaker 00:
He could have gotten 100% benefits for a psych disorder without having to bring in any evidence of secondary alcohol abuse.

[00:08:15] Speaker 00:
But it was the fact that it impacts the evidentiary record that was the reason why this court took jurisdiction.

[00:08:20] Speaker 00:
And those are the cases that are relied on in Williams, which is why I believe the court should take jurisdiction in this case.

[00:08:28] Speaker 00:
Again, one of the things that's discussed, I believe, in Adams is that taking jurisdiction on a remand is an unusual circumstance.

[00:08:36] Speaker 00:
And this is a case with an unusual circumstance.

[00:08:39] Speaker 04:
And if we did, tell me just briefly on the merits what it is you would have us say if we do reach the merits of this case.

[00:08:47] Speaker 00:
I would have you say that a veteran, the presumption of soundness protects a veteran from being

[00:08:54] Speaker 00:
presupposed to have entered service with a drug abuse disorder or an alcohol disorder, notwithstanding that language in 1110.

[00:09:01] Speaker 00:
In 1990, when Congress updated 1110 with that language about abuse of drugs and alcohol, that was back before Wagner.

[00:09:10] Speaker 00:
That was back when the presumption of soundness was essentially understood as how you're entering into service, not so much as what happened during service.

[00:09:18] Speaker 00:
Wagner was in 2004.

[00:09:19] Speaker 00:
Those amendments were in

[00:09:21] Speaker 00:
1990.

[00:09:22] Speaker 00:
Congress did not intend that these amendments, which were there simply to overturn one regulation that allowed for secondary service connection for things like cirrhosis of the liver based on a primary alcohol disability that arose during service, they wanted to prevent that.

[00:09:39] Speaker 00:
They were essentially overturning that regulation, and that was the purpose, which is discussed in Allen.

[00:09:44] Speaker 00:
it was never their purpose to say the military can sign someone up, find them sound, ship them off to combat, and then decide, because they disclosed that they used marijuana twice before service and got a waiver, well, they entered service a drug addict, and everything that happened since then has nothing to do with Iraqi combat, and all has to do with this presupposing drug disorder.

[00:10:06] Speaker 00:
So what I would like this court to do is to say that

[00:10:09] Speaker 00:
the Department of Veterans Affairs has to presume that when people enter service, if it is not written on the report of medical examination, on their enlistment examination, that they have an alcohol or drug use disorder, then the presumption of soundness applies the same as it applies for anything else.

[00:10:26] Speaker 00:
They are presumed to not have that unless there is clear and unmistakable evidence that they did.

[00:10:31] Speaker 00:
And that is not withstanding the aggravation prong.

[00:10:34] Speaker 00:
The pre-existence prong is its own prong

[00:10:36] Speaker 00:
that can be reversed.

[00:10:39] Speaker 01:
I'm confused about something.

[00:10:40] Speaker 01:
I thought that the Veterans Court said that the board recognized that the presumption of soundness did apply, but then found clear and unmistakable proof that the condition did pre-exist service, but then stopped there and didn't inquire about aggravation.

[00:11:05] Speaker 00:
Is that the lay of the land?

[00:11:07] Speaker 00:
That's the lay of the land.

[00:11:08] Speaker 00:
But my contention, and what we had asked our court to do, was there's two separate prongs.

[00:11:13] Speaker 00:
And again, these two prongs come from Wagner, which is 2004.

[00:11:16] Speaker 00:
But there's two separate prongs.

[00:11:18] Speaker 00:
Our contention is that when the board found clear and unmistakable evidence of pre-existent service, that was what we wanted reversal, because that impacts how the evidence is viewed.

[00:11:27] Speaker 00:
The 2020 examiner, the negative examiner, she relied on that pre-existence to say, he doesn't have PTSD.

[00:11:34] Speaker 00:
He has residuals of this pre-existing disorder.

[00:11:38] Speaker 00:
So while the aggregation prong wasn't addressed, these are two separate prongs, and there was a board finding that there was clear and unmistakable evidence he entered service with this disorder, which impacts the way all the evidence is viewed.

[00:11:49] Speaker 00:
The favorable opinions, the reason the board rejected them was because they didn't acknowledge this supposed pre-existing disorder.

[00:11:55] Speaker 00:
So we asked the Veterans Court, we want to reverse

[00:11:59] Speaker 00:
that finding that clearly and unmistakably pre-existed service, but the Veterans Court saw it as, well, as long as aggravation is not addressed, it's okay.

[00:12:14] Speaker 01:
Do you not get to challenge that finding of pre-existence of this particular disorder and put in new evidence and whatnot?

[00:12:28] Speaker 00:
We could certainly challenge the finding, but our contention, again going back to the idea that this is the government's burden, is that the record as it is today

[00:12:35] Speaker 00:
the government didn't carry any burden to find pre-existence.

[00:12:39] Speaker 00:
The secretary didn't even defend that part.

[00:12:42] Speaker 00:
The secretary didn't say there was sufficient evidence to overcome pre-existence.

[00:12:46] Speaker 00:
The secretary said it just doesn't apply.

[00:12:47] Speaker 00:
So if we go back to VA, yes, we will make that argument, and we can put in more evidence, but the government can get more evidence too.

[00:12:56] Speaker 00:
What we think is that the record as it is warrants a reversal on this idea that he entered service with this pre-existing disorder because it violates the plain language of 1111, that he is presumed sound when he enters service, notwithstanding the aggravation prong.

[00:13:14] Speaker 01:
You're into your rebuttal time.

[00:13:16] Speaker 01:
OK.

[00:13:33] Speaker 02:
Thank you, Your Honors, and may it please the Court.

[00:13:35] Speaker 02:
This Court should dismiss this appeal, or alternatively affirm the Veterans Court's decision.

[00:13:41] Speaker 02:
This is an appeal of a non-final remand order that provides a clean slate for the Board to address the legal issues regarding an acquired psychiatric disorder.

[00:13:51] Speaker 02:
This Court typically does not review remand orders of the Veterans Court, and it should decline to do so here, because Mr. Jenkins fails to satisfy each of the three Williams factors.

[00:14:01] Speaker 02:
At bottom, what the disagreement seems to come down to is that Mr. Jenkins seems to be arguing that the Veterans Court endorsed the board's decision with respect to the legal issues in the acquired psychiatric disorder.

[00:14:13] Speaker 02:
The Veterans Court did not.

[00:14:14] Speaker 02:
It simply summarized what the board was saying and then vacated with respect to factual and legal issues and told the board that they can try again with respect to the legal issues.

[00:14:24] Speaker 03:
Do you understand what your opposing counsel is saying?

[00:14:28] Speaker 03:
And maybe I'm wrong and she can correct me when she gets back up, but it sounds like

[00:14:34] Speaker 03:
The board made a decision that was clear and convincing evidence of disorder prior to service, which they can do even with a presumption of soundness.

[00:14:44] Speaker 03:
That's how you get over it.

[00:14:45] Speaker 03:
That it went up.

[00:14:47] Speaker 03:
The Veterans Court found that insufficient and sent it back.

[00:14:50] Speaker 03:
And she wants to say, well,

[00:14:54] Speaker 03:
with a legal ruling that I can't understand quite understand what she's saying.

[00:14:57] Speaker 03:
But she wants to freeze the record, because since she's already won on, or at least potentially won, that the record as it stands doesn't show evidence, then they shouldn't be, on remand, be allowed to go back and look at it again.

[00:15:12] Speaker 03:
Is that what you heard?

[00:15:15] Speaker 03:
I mean, what?

[00:15:19] Speaker 03:
I don't understand any other reason to do this.

[00:15:22] Speaker 03:
I mean, if the board got it wrong in its decision that there was clear and convincing evidence that this predated service, then you appeal and say the board got it wrong.

[00:15:33] Speaker 03:
The normal course is the Veterans Court vacates and remands and said, this is wrong.

[00:15:38] Speaker 03:
You don't have substantial evidence for your decision.

[00:15:40] Speaker 03:
And it goes back.

[00:15:42] Speaker 03:
And the board can do whatever the board does on looking at the VA's decisions.

[00:15:47] Speaker 02:
We don't read the Veterans Court's decision as saying that the board got it wrong.

[00:15:51] Speaker 02:
We read it as saying that the board did not provide sufficient explanation of why it's relying on the December 2020 opinion.

[00:15:57] Speaker 02:
It's a reason for the basis.

[00:15:58] Speaker 02:
Yes, exactly, Your Honor.

[00:16:01] Speaker 02:
So with that, we think that Mr. Jenkins does not satisfy any of the three Williams factors.

[00:16:09] Speaker 01:
There's no statement of law that would... There's nothing in the Veterans Court decision that says 1111 doesn't apply to a condition that itself doesn't qualify under 1110?

[00:16:22] Speaker 02:
That's correct because the Veterans Court is summarizing the board's decision and the Veterans Court does not endorse the board's decision.

[00:16:31] Speaker 04:
Can you agree that following the remand, Mr. Jenkins would have the right to appeal if he's not satisfied with the outcome?

[00:16:41] Speaker 02:
Yes.

[00:16:41] Speaker 02:
All of the arguments that Mr. Jenkins is making today with respect to the legal issues that his counsel has raised could be raised below.

[00:16:48] Speaker 02:
No chance they could be mooted unless he prevails in full.

[00:16:52] Speaker 02:
With respect to the acquired psychiatric disorders, that's an issue on dispute now.

[00:16:54] Speaker 02:
No.

[00:16:58] Speaker 02:
If your honors have no further questions.

[00:17:00] Speaker 02:
OK.

[00:17:00] Speaker 02:
Thank you.

[00:17:13] Speaker 00:
Thank you, Your Honors.

[00:17:15] Speaker 00:
Just to respond, I think, again, I'd reiterate that there is the chance that it could be mooted because VA could generate more evidence.

[00:17:21] Speaker 00:
And the record as it is, there isn't sufficient evidence.

[00:17:24] Speaker 00:
Also, I would say that the court did endorse the board's approach by, first of all, saying that there was no finding to reverse when the board made a finding.

[00:17:34] Speaker 00:
The board said clearly and unmistakable, clear and unmistakable evidence that this pre-existed service.

[00:17:39] Speaker 00:
That was a reversible, factual finding.

[00:17:41] Speaker 00:
That was also a legal finding.

[00:17:43] Speaker 00:
And the court said there's nothing to reverse, simply because the board decided not to address aggravation based on 1110.

[00:17:51] Speaker 00:
So the court did not look at it as these two separate prongs with two separate legal findings.

[00:17:56] Speaker 00:
The court looked at it as kind of, well, we don't have to worry about pre-existence.

[00:18:00] Speaker 00:
Aggravation is that catch-all.

[00:18:02] Speaker 00:
And that is just not the way the presumption of soundness is meant to work.

[00:18:06] Speaker 00:
its perversion of it, because the idea of the presumption of soundness is veterans are presumed to enter service without anything.

[00:18:12] Speaker 00:
It's not about, well, they enter service with everything, and we have to prove aggravation.

[00:18:16] Speaker 00:
That would turn it on its head.

[00:18:19] Speaker 00:
But the biggest risk here is the risk of further development of evidence going towards the presumption of soundness, which is why we had asked our court to prohibit that the way our court typically prohibits that in presumption of soundness cases.

[00:18:32] Speaker 00:
And so that is what I'd ask your honors to think about in terms of whether now is the time to address this or whether this can wait for later because there is that substantial risk to Mr. Jenkins.

[00:18:44] Speaker 00:
If there are no more questions.

[00:18:46] Speaker 01:
Thank you.

[00:18:47] Speaker 01:
Thanks to all counsel.

[00:18:48] Speaker 01:
The case is submitted.