[00:00:00] Speaker 04:
Our last case for argument is 25-1164, Sylvania v. Collins. Mr. Jones, please proceed.

[00:00:10] Speaker 03:
Yes, Your Honor. May it please the Court? I'm here arguing on behalf of Mr. Sylvain here.

[00:00:18] Speaker 03:
And first of all, we do understand that clear and unmistakable error claims are challenging.

[00:00:30] Speaker 03:
But I wanted to emphasize a couple of things here. First of all is that the veteran filed a back claim.

[00:00:43] Speaker 01:
He had clear... What is your argument for why we have jurisdiction in this case to review the decision?

[00:00:49] Speaker 03:
I think that the number one is that the...

[00:00:56] Speaker 03:
Well, first of all is did the CAVC – I think that the main issue would be that the – would the board – would the CAVC in reviewing this decision have been required to cite independent medical evidence because it is clear at the time that CAVC precedent at the time required them to cite independent medical evidence when rejecting medical opinions.

[00:01:33] Speaker 03:
And then number two, it's also been a question, as we kind of then pointed out, whether or not you added an additional kind of a long-term trauma requirement under the principles of demonstrating a service injury under 3.303A. So that would be our argument there.

[00:01:54] Speaker 02:
Well, the Veterans Court decided there was no cue. That's correct.

[00:02:01] Speaker 02:
Do we affirm that if we agree, or do we dismiss it because we can't evaluate cue which relates to facts?

[00:02:17] Speaker 03:
Well, so basically, are you then If I kind of didn't understand your argument, is that because it's a – I'm not making an argument.

[00:02:28] Speaker 02:
We ask questions.

[00:02:29] Speaker 03:
Yeah, yeah. So I guess I'm just trying to understand your question. So basically is the question is because this is a factual issue that basically that the court would have the no jurisdiction to basically review it and would just have to dismiss it, I guess, is what you're arguing here.

[00:02:54] Speaker 03:
And what we would say is that, number one, is it a legal requirement that under like the Murphy case, you have to cite independent medical evidence when you evaluate whether or not, so is that a legal requirement, which of course this court can obviously decide that. And also, As we pointed out, the trauma, did they impose an extra sort of you have to demonstrate a long-term trauma to demonstrate a requirement for principles of service connection under 3.303A or principles of establishing whether or not there's an injury?

[00:03:42] Speaker 04:
But I guess I don't – where exactly do you think the Veterans Court or the board interpreted 3.303A to require trauma?

[00:03:53] Speaker 03:
Yeah, I think that – I don't know if necessarily –

[00:04:05] Speaker 04:
Because we can't review application of law to facts, right? We can only review interpretation of law.

[00:04:11] Speaker 03:
Right, right.

[00:04:12] Speaker 04:
I didn't see in their opinion a place where I thought that they were interpreting 303A to require trauma.

[00:04:19] Speaker 03:
Yeah, I think that they may have talked about 3.303B. Let me see. Hold on just a minute.

[00:04:29] Speaker 01:
Do you have a page citation for us, counsel?

[00:04:32] Speaker 03:
I'm sorry.

[00:04:33] Speaker 01:
In response to Chief Judge Moore's question, can you point us to a page? Because you just said that you thought they did talk about it and interpret it. Right, okay.

[00:04:40] Speaker 03:
I'd love to see a page. Yeah, that's what I was trying to find. Let's see. Hold on.

[00:05:17] Speaker 03:
I said, yeah, it talks about 3.303, looks like around APPX 57. That's where I see where it talks about APP, you know, 3.303, and it talks about having a chronic condition at service or during applicable and still has such condition. So, yeah.

[00:05:47] Speaker 03:
So I think it would probably be more maybe kind of like inferred because basically what the board in 2002 had held was that the veteran did not suffer a long-term injury from his injury in 1971.

[00:06:14] Speaker 03:
And so I think that that's kind of probably where we're – it's kind of more of an inferred issue.

[00:06:24] Speaker 03:
It's probably kind of more of an inferred issue rather than an explicit issue.

[00:06:30] Speaker 03:
But I still do think that the question about whether or not Q can be established – when the board fails to cite independent medical evidence, which can violate, which in this case they did not. And it is clear that under Murphy, they would have been required to do as such in order to reject the claim. And there could be, like I said, a legal argument that USCAVC president, which existed at the time, would have been required to be applied.

[00:07:10] Speaker 04:
Anything further, counsel?

[00:07:20] Speaker 03:
Yes, I said yes. I said yes.

[00:07:23] Speaker 03:
Yes, I think that, you know, if you take a look at the At the facts of this case, you have, you know, as we pointed out, you have three.

[00:07:41] Speaker 04:
We're not allowed to take a look at the facts of this case.

[00:07:44] Speaker 03:
Okay.

[00:07:44] Speaker 04:
Our jurisdiction is only. Okay.

[00:07:47] Speaker 03:
Okay. Okay. Okay. Then I guess basically, then I basically have nothing further than to cite at this time. Okay. Okay.

[00:07:55] Speaker 04:
Mr. Tully.

[00:08:09] Speaker 00:
Good morning. May it please the Court? In our view, the Court should dismiss this case for lack of jurisdiction.

[00:08:16] Speaker 00:
We do not believe that the Court has jurisdiction over either of the two arguments that Mr. Sylvain makes. First, I'll address the trauma argument. He claims that the Board imposed a trauma requirement in 2002.

[00:08:30] Speaker 00:
But the court does not review the board's 2002 decision, does not conduct a plenary review of that decision in the same way the Veterans Court does not. This court reviews the Veterans Court decision below, and the Veterans Court decision does not even mention 38 CFR 3.303. It does not interpret it.

[00:08:50] Speaker 00:
The Veterans Court addressed Mr. Sylvain's argument as to the trauma requirement by saying the Board simply applied well-established law for determining service connection, whether there's a causal connection between an in-service injury and a current condition. That's not imposing a trauma requirement. That's asking whether there's a factual connection between an in-service injury and the current condition.

[00:09:16] Speaker 00:
I mean, second, he claims that the board was required to cite independent medical evidence before assigning the low probative value to doctor's letters.

[00:09:24] Speaker 00:
The Veterans Court rejected that argument because the board did not make a medical decision. Instead, it looked at the facts and determined that the medical letters all relied on Mr. Sylvain's testimony about falling down a ladder. in 1977.

[00:09:44] Speaker 00:
And the board determined that that testimony was not credible. It was contradicted by the medical records at the time that showed no injury to his back around the time.

[00:09:53] Speaker 04:
You don't get to review anything.

[00:09:54] Speaker 00:
No, you don't. So that's why we believe that this argument, too, is outside of the court's jurisdiction. It's a challenge to factual findings.

[00:10:03] Speaker 00:
And The law at the time was clear that the board was permitted to assign a low probative value to medical letters that relied on non-credible reports by veterans about injuries. And the Veterans Court cited Rionnell v. Brown and Swan v. Brown, and those cases were both cited by the Veterans Court. They're not addressed by Mr. Sylvain in his brief.

[00:10:30] Speaker 00:
But we think the law was very clear at the time that the board was permitted to do exactly what it did.

[00:10:35] Speaker 00:
which was to assign a low probative value to those doctor's letters. And that just cannot be clear and unmistakable error. That's a factual determination assigning weight to evidence.

[00:10:44] Speaker 00:
So unless the court has questions, which I'm happy to address, we respectfully ask that the court dismiss or affirm.

[00:10:52] Speaker 04:
Thank you very much. Thank you.

[00:10:57] Speaker 04:
Mr. Jones, you have some rebuttal time?

[00:11:03] Speaker 03:
Yeah, I think that...

[00:11:11] Speaker 03:
Does the court have any questions for me?

[00:11:15] Speaker 03:
No. Okay. Yeah.

[00:11:20] Speaker 03:
You know, I don't really don't have anything more than I could add.

[00:11:24] Speaker 04:
We have your argument under advisement, counsel. We thank both lawyers. This case is taken under submission.

[00:11:29] Speaker 03:
Thank you very much.