[00:00:01] Speaker 04:
The final case today is Williams v. McDonough, case number 24-1030.

[00:00:08] Speaker 04:
Mr. Jones, when you're ready.

[00:00:14] Speaker 03:
Yes, ma'am.

[00:00:15] Speaker 03:
I am ready.

[00:00:16] Speaker 04:
Okay.

[00:00:16] Speaker 04:
Please proceed.

[00:00:17] Speaker 03:
Okay.

[00:00:21] Speaker 03:
And I'll try to keep an eye out for Judge Cunningham because I could kind of see sometimes people would have trouble seeing him.

[00:00:31] Speaker 03:
Okay.

[00:00:35] Speaker 03:
May please the court.

[00:00:37] Speaker 03:
What we have here.

[00:00:41] Speaker 03:
Just to give a little bit of factual background, this is an appeal from the Court of Appeals Veterans Claims.

[00:00:49] Speaker 04:
You can assume that we're quite familiar with the facts and issues you laid out in your briefs.

[00:00:57] Speaker 03:
Okay, okay.

[00:00:57] Speaker 03:
All right.

[00:00:58] Speaker 03:
Well, I think that the, is there anything in particular that the court would want me to start to address based upon the briefs or anything?

[00:01:08] Speaker 04:
Well, I can answer your question.

[00:01:09] Speaker 04:
I mean, one of your issues about a presumption of soundness and also I'm having a hard time understanding how the presumption of soundness applies in this case to the Q issue.

[00:01:24] Speaker 03:
OK.

[00:01:25] Speaker 03:
OK.

[00:01:25] Speaker 03:
All right.

[00:01:26] Speaker 03:
I think that the issue revolves around the fact that the board indicated that the

[00:01:38] Speaker 03:
that the regional office in 1975, I guess, had a reasonable basis to conclude that this was a congenital defect because of the spina bifida.

[00:01:48] Speaker 03:
And we argued in our brief that we think that that was wrong because the issue is not whether or not a spina bifida is capable of getting worse.

[00:01:57] Speaker 03:
The issue is whether or not the veteran's back condition is getting worse because that is the claim that he filed on.

[00:02:04] Speaker 03:
And once you take away

[00:02:07] Speaker 03:
be that it's not a congenital defect, then the only way that you can

[00:02:20] Speaker 03:
say that the decision is correct based upon a pre-existing condition would be that the presumption of soundness would apply because because the presumptive because once you don't have because once it's not a congenital defect then if you then want to say okay well we're going to deny the claim because it pre-existed service then

[00:02:43] Speaker 03:
the presumption of soundness, that is when the presumption of soundness applies.

[00:02:46] Speaker 03:
So that was the basis of that argument.

[00:02:50] Speaker 04:
What is your legal basis for saying that under a cue we should provide a sympathetic reading when really we're supposed to be looking for a clear and unmistakable error?

[00:03:02] Speaker 03:
Okay, okay.

[00:03:03] Speaker 03:
Yes.

[00:03:04] Speaker 03:
I think that the argument that I was making from is that in particular in the Moody case,

[00:03:12] Speaker 03:
that we cited in our brief, this court held that the Court of Appeals of Veterans Claims and the Board said that a sympathetic reading was required.

[00:03:28] Speaker 04:
Was that a case that was under a clear and unmistakable error case?

[00:03:34] Speaker 03:
Yes.

[00:03:34] Speaker 03:
Yes.

[00:03:35] Speaker 03:
Yes.

[00:03:36] Speaker 03:
Yes.

[00:03:36] Speaker 04:
That particular case was a clear... It's a sympathetic reading of the pleadings, right?

[00:03:42] Speaker 03:
I think so.

[00:03:42] Speaker 03:
I think that if I understand your question.

[00:03:46] Speaker 04:
What the sympathetic reading is supposed to be provided to is to the pleadings made by the veteran, right?

[00:03:54] Speaker 03:
I think that the particulars of that particular case was that, yes, that the reading, that you're supposed to give a sympathetic reading even in the cue context to determine whether or not the veteran had actually made an implicit claim.

[00:04:10] Speaker 04:
And what exactly are you asking for the court to give a sympathetic reading to in this case?

[00:04:17] Speaker 03:
OK.

[00:04:21] Speaker 03:
What we're saying is that,

[00:04:24] Speaker 03:
Once you, assuming that the presumption of soundness applies, then considering that once the presumption of soundness applies, then the burden of proof shifts to the VA.

[00:04:40] Speaker 03:
And that necessarily should affect how

[00:04:45] Speaker 03:
one should interpret the evidence under clear and unmistakable error.

[00:04:51] Speaker 04:
But that's evidence.

[00:04:52] Speaker 04:
Now you're asking for a sympathetic reading of the evidence as opposed to a sympathetic reading of the veterans' contentions and pleadings that are made before the VA.

[00:05:01] Speaker 04:
It seems different to me.

[00:05:07] Speaker 03:
So I'm going to give kind of an example of kind of like of what I'm thinking about is when if the presumption of soundness applies, then the law says the burden of proof is on the VA.

[00:05:25] Speaker 03:
And so naturally that should affect how one should look at the evidence.

[00:05:32] Speaker 03:
And so say like, for example,

[00:05:34] Speaker 03:
In this particular case, you know, you have an October 1974, you know, back exam.

[00:05:42] Speaker 03:
The only history given is this injury and service in 1969.

[00:05:47] Speaker 03:
If the presumption of soundness applies, then the burden of proof would have to be on the VA to demonstrate by clearing.

[00:05:57] Speaker 02:
Right, but there's a fact finding here about the episode of lifting the foot locker.

[00:06:03] Speaker 02:
is not an in-service occurrence.

[00:06:07] Speaker 02:
The initial RO that dealt with your client and the rejection was based on the fact that, yes, we know that this serviceman, when he was in service, lifted a footlocker and went into the bed tent later and complained my back hurt.

[00:06:30] Speaker 02:
evidence was deemed insufficient to be an in-service occurrence of an injury that would lead to compensation.

[00:06:39] Speaker 03:
I think that the way that I thought that it was was that the, and in fact subsequently the

[00:06:53] Speaker 03:
the regional office when they subsequently granted the claim, they found that he had degenerative dystrophy.

[00:06:58] Speaker 02:
So it was my understanding, and it may be that I... There's no specific finding when he finally gets the service connection for exactly why.

[00:07:07] Speaker 02:
They have the original records, plus they have some doctor's records afterwards.

[00:07:13] Speaker 02:
Okay, okay.

[00:07:13] Speaker 02:
In front of that agency.

[00:07:14] Speaker 02:
So we don't know exactly why the fact finder, when they looked up the record about the footlocker,

[00:07:22] Speaker 02:
initially said no service connection, later said yes service connection.

[00:07:27] Speaker 02:
But it looks like there was additional evidence in front of the second body that granted the service connection some doctor's examination of him since, and we don't have them in the record.

[00:07:39] Speaker 02:
Okay, okay.

[00:07:42] Speaker 02:
I'll grant you there is a question, say well why wasn't a service connected when he first filed if all there is to it was lifting the supposed injury from lifting the foot locker.

[00:07:54] Speaker 03:
Yes, yes, yes and of course I don't know if the

[00:08:00] Speaker 03:
If the additional evidence was service records, then you may then have a 3.156 issue.

[00:08:08] Speaker 02:
But the way I kind of didn't understand it is they were... Q is found if a body who makes an initial decision didn't have all the relevant information in front of it.

[00:08:17] Speaker 02:
And if it had the relevant information, the better clearly would have won.

[00:08:21] Speaker 02:
That's Q.

[00:08:22] Speaker 02:
But we don't have that issue being presented here because we don't know whether, when he was finally given his service connection, whether there was reference to evidence then that would have been available initially at the time that he was initially turned down.

[00:08:37] Speaker 02:
So I couldn't get a predicate for you on Q based on the fact that he was given service connection.

[00:08:47] Speaker 02:
And I believe his wife is still enjoying, or I hope is still enjoying, the fruits of that.

[00:08:52] Speaker 02:
She is.

[00:08:53] Speaker 02:
She is.

[00:08:54] Speaker 02:
She is.

[00:08:54] Speaker 02:
I noticed that Judge Cunningham... The question here, you're looking for an earlier effective date, right?

[00:08:59] Speaker 02:
You're looking for an earlier effective date.

[00:09:02] Speaker 02:
That's correct.

[00:09:02] Speaker 02:
That's correct.

[00:09:03] Speaker 03:
Yes, I said yes.

[00:09:04] Speaker 03:
Then 2011 because of...

[00:09:06] Speaker 03:
Well, and I don't think the veteran even appealed for the early effective date at the time when it was granted.

[00:09:14] Speaker 03:
Well, he didn't, no?

[00:09:15] Speaker 03:
Yeah, so, I mean, so that 2000... That's why you're here.

[00:09:18] Speaker 03:
Exactly.

[00:09:19] Speaker 03:
Yeah.

[00:09:19] Speaker 03:
Yeah, exactly.

[00:09:21] Speaker 03:
So, you see, you had a question for me?

[00:09:23] Speaker 01:
I did.

[00:09:24] Speaker 01:
So, just coming back and following up on Judge Stoll's question, so let's assume that we do not believe the presumption of foundness is relevant here.

[00:09:33] Speaker 01:
With that assumption, what would you say is your best argument on why your client shouldn't?

[00:09:39] Speaker 03:
Assuming that the presumption of soundness doesn't apply?

[00:09:45] Speaker 03:
Is that my correct?

[00:09:46] Speaker 03:
I think that the... Well, I think number one is that the finding that the...

[00:10:02] Speaker 03:
veteran suffered from spina bifida and therefore suffered from a congenital defect is clearly wrong.

[00:10:11] Speaker 03:
We also think that the requirement, and we articulated this in our brief, that the RO said that he suffered from a trauma in service adds an additional requirement that is not necessarily

[00:10:31] Speaker 03:
you know, that is not necessarily supported in law.

[00:10:36] Speaker 03:
So that would be the argument that I would make.

[00:10:42] Speaker 03:
Do you have any further questions?

[00:10:44] Speaker 04:
You're into your rebuttal time.

[00:10:46] Speaker 04:
Judge Cunningham, do you have any further questions?

[00:10:49] Speaker 04:
Would you like to, you can continue arguing or you could save your time at this point?

[00:10:53] Speaker 04:
I'll save my time.

[00:10:54] Speaker 04:
Okay.

[00:10:55] Speaker 04:
Let's hear from the government.

[00:11:00] Speaker 04:
Ms.

[00:11:00] Speaker 04:
Habase?

[00:11:02] Speaker 00:
Good afternoon, Your Honors, and may it please the Court.

[00:11:06] Speaker 00:
I want to address first this issue of the presumption of soundness.

[00:11:10] Speaker 00:
And it's our position that the presumption does not, not necessarily doesn't apply here, but that it doesn't help decide the issues in this case.

[00:11:18] Speaker 00:
We don't disagree that it applies.

[00:11:20] Speaker 00:
He did have an entrance exam that showed no diseases or injuries, so that inherently invokes the presumption of soundness.

[00:11:29] Speaker 00:
But the presumption of soundness doesn't really help the rest of his case in terms of whether there should be a sympathetic reading versus the Q standard, which is undebatable error.

[00:11:42] Speaker 00:
this court clearly held in Semrage and also in Moody that the sympathetic reading standard applies to the pleading.

[00:11:54] Speaker 00:
So in the Moody case, it had to do with whether an informal

[00:12:00] Speaker 00:
an informal claim had been filed, and this court held that the evidence was not required to undebatably show that an informal claim had been filed.

[00:12:10] Speaker 00:
That under a sympathetic reading, it would just have to show under a sympathetic reading that whatever was filed constituted an informal claim.

[00:12:19] Speaker 04:
So in here, it's your view that the attempt by Mr. Williams is to rely on the sympathetic reading for the evidence as opposed to a sympathetic reading

[00:12:29] Speaker 04:
for the pleadings.

[00:12:31] Speaker 04:
Is that right?

[00:12:32] Speaker 00:
That's what I understand Ms.

[00:12:34] Speaker 00:
Williams' argument to be.

[00:12:36] Speaker 00:
I think it might also be that a sympathetic reading should apply to the RO's decision or perhaps the board's decision to determine whether or not there was Q, but that is not the Q standard for looking at the decisions below.

[00:12:53] Speaker 00:
It's whether the error was undebatable given the facts and the law at the time.

[00:13:04] Speaker 00:
Unless the court has further questions.

[00:13:07] Speaker 04:
Do you have any questions?

[00:13:08] Speaker 04:
No.

[00:13:08] Speaker 04:
Do you have any questions, Judge Cunningham?

[00:13:10] Speaker 04:
OK.

[00:13:11] Speaker 04:
Thank you.

[00:13:21] Speaker 03:
OK.

[00:13:22] Speaker 03:
Does the court have any further questions for me?

[00:13:26] Speaker 02:
I understand the circumstances that your client is in wanting to have an earlier effective date for the award for the deceased veteran's injury, which has been held to be service-connected way back to when he served.

[00:13:43] Speaker 02:
But in order to demonstrate Q, you have to show that there was either a blatant legal error of this material

[00:13:53] Speaker 02:
or that there was factual evidence that was in front of the original fact finder that wasn't there and that factual evidence presented would be clear winner.

[00:14:04] Speaker 02:
And I haven't seen in your case any factual evidence that you've brought forth that was available to the original adjudicator, but who failed to see it and therefore committed the error.

[00:14:18] Speaker 02:
And in so far as any legal error, yes,

[00:14:23] Speaker 02:
presumption of soundness exists in every case, but there's no evidence here that that presumption of soundness was not granted.

[00:14:32] Speaker 02:
No one said, for example, oh, guess what, this is all from your previous back injury and we're turning you down because you had back problems before you got on the service.

[00:14:45] Speaker 02:
That would have been wrong if it had been done because if that condition isn't noted when you come into service, there's a presumption that you were in good shape.

[00:14:55] Speaker 02:
So I was having trouble connecting your statements, which is that there is a presumption of soundness for a veteran.

[00:15:06] Speaker 02:
Yes, there is, but I couldn't see how that presumption was not honored here.

[00:15:12] Speaker 02:
And then the notice notion that

[00:15:15] Speaker 02:
Veterans Administration is giving sympathetic reading to the version of the case that's being footworked by the veteran.

[00:15:25] Speaker 02:
I didn't see any evidence in which there was a failure to give you the sympathy that you might have been entitled to your client because the question of whether or not this is an error in the assessment of the second condition

[00:15:42] Speaker 02:
isn't a matter over which there is deference given in sympathy.

[00:15:47] Speaker 02:
It's a pure legal question.

[00:15:50] Speaker 03:
Well, I think that what I would respond is that the presumption of soundness is that

[00:15:59] Speaker 03:
when you say that something has a congenital defect and that was my understanding in the rating code sheet they put spina bifida congenital defect that when you say something is a congenital defect then you're not then basically what you're saying is that okay this thing pre-existed service

[00:16:26] Speaker 02:
Well, you can have a congenital defect and still have a service-infected problem.

[00:16:31] Speaker 02:
If you have a congenital defect, then that's something that you're not recognizable as being compensable.

[00:16:37] Speaker 03:
Yeah, yeah.

[00:16:37] Speaker 03:
And I think that our argument was that the congenital defect finding was clearly wrong because the issue involves the veteran's back and not his spina bifida.

[00:16:53] Speaker 03:
And so that was our contention.

[00:16:58] Speaker 03:
Thank you.

[00:17:02] Speaker 04:
I don't think we have any further questions, but you have a little bit more time if you'd like to use it.

[00:17:07] Speaker 04:
Good.

[00:17:08] Speaker 04:
Thank you very much.

[00:17:09] Speaker 04:
Thank you.

[00:17:09] Speaker 04:
We thank counsel for your argument.

[00:17:12] Speaker 04:
The case is submitted.

[00:17:13] Speaker 04:
Thank you very much.

[00:17:21] Speaker ?:
That's all.

[00:17:24] Speaker 02:
Nice to see counsel shaking hands at the end of an argument, sir.