[00:00:00] Speaker 03:
The next case is Yerck v. Collins, number 24-2023.

[00:00:06] Speaker 03:
Mr. DeHawkis, when you're ready.

[00:00:09] Speaker 04:
Thank you, Your Honor.

[00:00:09] Speaker 04:
May it please the Court, Kenny DeHawkis, for Mr. Yerck.

[00:00:12] Speaker 04:
On behalf of Mr. Yerck, I do want to thank this Court for the opportunity to present his appeal.

[00:00:16] Speaker 04:
The Veterans Court here engaged in impermissible fact-finding, and in doing so has deprived Mr. Yerck of any opportunity to challenge those facts because this Court, of course, does not have jurisdiction to do so.

[00:00:28] Speaker 04:
The board found only that the record, as it now stands, did not support his testimony about the severity of his injuries.

[00:00:37] Speaker 04:
The Veterans Court, on the other hand, found that his testimony did not point to any records that may exist, but that were not then put into the record.

[00:00:46] Speaker 04:
At the Veterans Court, he challenged the board's entire failure to even mention the duty to assist

[00:00:54] Speaker 04:
And the Veterans Court found that it was not reasonably raised because the veteran's testimony, and I'm quoting here, did not refer to any records and said only that he was at Portsmouth for observation for two months and that the court has not persuaded that mention of this demonstrates that any records in addition to the MEB and PEB reports were outstanding.

[00:01:19] Speaker 04:
What the court said and what the board said are different.

[00:01:26] Speaker 04:
Whether testimony demonstrates that there are outstanding records is not the kind of analysis that this court found is permissible when looking at reasonably raised issues.

[00:01:36] Speaker 04:
The secretary highlighted Golden v. Collins, which was issued in December.

[00:01:41] Speaker 04:
And there the court said that the Veterans Court is allowed to synthesize, analyze, and paraphrase the board's decision.

[00:01:48] Speaker 04:
but it did not hold that the court can make its own fact finding.

[00:01:52] Speaker 04:
We think that this case is more in line with what happened in Stinson and Tadlock.

[00:01:59] Speaker 04:
There, Tadlock emphasized that because the court's conclusion about the veteran's condition, whether his symptoms were an undiagnosed illness, was not the only possible outcome, it should have ordered a remand.

[00:02:11] Speaker 04:
Likewise in Stinson, the court reiterated that questions of fact that are open to debate

[00:02:18] Speaker 04:
require a remand for the board to resolve that debate.

[00:02:22] Speaker 00:
Can I ask you a question?

[00:02:24] Speaker 00:
In this case, how I'm reading the veteran's opinion is that it looked at the record and identified a good number of documents that were from the two-month period that was mentioned by the veteran, Mr. Yerke.

[00:02:48] Speaker 00:
So there was five or six documents that were during that time period.

[00:02:53] Speaker 00:
And then they said there was nothing in the testimony that would suggest that there was additional records beyond those five or six documents.

[00:03:06] Speaker 00:
Am I misunderstanding?

[00:03:07] Speaker 00:
I just want to make sure that's how I'm reading it.

[00:03:10] Speaker 00:
And I don't know that I see a fact finding there.

[00:03:13] Speaker 00:
So tell me why you think there's a fact

[00:03:16] Speaker 04:
You're talking about the Veterans Court's analysis.

[00:03:19] Speaker 00:
I am.

[00:03:19] Speaker 04:
I am.

[00:03:20] Speaker 00:
Absolutely.

[00:03:21] Speaker 00:
Because you're asserting the Veterans Court engaged in a fact finding, and I'm telling you how I'm reading their opinion.

[00:03:27] Speaker 04:
Right.

[00:03:27] Speaker 04:
I understand, Your Honor.

[00:03:29] Speaker 04:
And I'm focusing on page 14 of the appendix.

[00:03:34] Speaker 04:
So the veteran's testimony starting there did not refer to any records and said that he was held for observation.

[00:03:41] Speaker 04:
What the veteran testified to on page 65 and 66 of the appendix is that he was held under medical observation for a considerable amount of time, I think upwards of two months.

[00:03:57] Speaker 04:
There's no findings by the board that that did not happen.

[00:03:59] Speaker 04:
We know he was in Portsmouth for at least two months.

[00:04:02] Speaker 00:
Yeah, they don't seem to dispute that.

[00:04:04] Speaker 00:
They seem to be saying, here are these documents, medical documents,

[00:04:09] Speaker 00:
that were created and that are already in the record during that two-month time period.

[00:04:15] Speaker 04:
And so what the veteran testified to was that he was under medical observation, which in our mind indicates or suggests that there was more than just what was in the record.

[00:04:25] Speaker 04:
There was only a handful of documents that were obtained by the VA from this time period.

[00:04:31] Speaker 04:
And if he were in fact under medical observation for two, maybe three months, depending on the start and end times,

[00:04:37] Speaker 04:
we would expect there to be something more.

[00:04:41] Speaker 04:
And just because a specific record that they do have doesn't allude to any additional records doesn't mean that what the veterans said doesn't support the presence of additional records.

[00:04:51] Speaker 04:
And that's the fact finding that the court went into that the board never did.

[00:04:56] Speaker 04:
What the board said was only that what the board had before it

[00:05:01] Speaker 04:
did not support this that what the veteran testified to about the severity of his condition uh... or his injury and so if there were in fact additional records that may change that fact-finding but the credibility uh... determination by the board was not that he's entirely not credible it was just that what he's talking about here uh... the severity of his condition was not supported by what the evidence the board then had and so

[00:05:30] Speaker 04:
The findings by the board.

[00:05:32] Speaker 00:
The legal framework that the Veterans Court was operating under.

[00:05:36] Speaker 00:
It was operating under the legal framework that the duty to assist arises when records are identified, right?

[00:05:43] Speaker 04:
Correct, Your Honor.

[00:05:45] Speaker 04:
And that's really our point.

[00:05:47] Speaker 04:
And we talked about this quite a bit in our opening brief, and again in our reply brief, that are the records identified is an inherently factual determination.

[00:05:58] Speaker 04:
whether they even exist is another factual determination.

[00:06:02] Speaker 04:
And the Veterans Court was- The board has to always decide that.

[00:06:07] Speaker 00:
Not always, Your Honor.

[00:06:09] Speaker 00:
The Veterans Court, when presented with the issue more clearly and directly, can't decide that question.

[00:06:17] Speaker 04:
When it's open to debate, they cannot, Your Honor.

[00:06:19] Speaker 04:
And that's what Golden held, and that's what Stinson and Tadlock, Stinson more so, held, is that when there's a debate about this fact, the board has to have the first say.

[00:06:33] Speaker 04:
And in Golden, I'm sorry,

[00:06:36] Speaker 04:
for instance, the Veterans Court made an observation that there was no evidence other than this one 2011 exam that linked the veteran's disability to his service.

[00:06:49] Speaker 04:
And so when they're just observing an undisputed fact like that, then that's not impermissible fact finding.

[00:06:57] Speaker 04:
But like in Stinson, and I just want to highlight too that this is

[00:07:03] Speaker 04:
in the context of whether the issue was reasonably raised and I was not able to locate any case law that talks about fact-finding within that context Stinson was pretty close because they were looking at an issue that was raised for the first time on

[00:07:20] Speaker 04:
appeal to the court, just like this one.

[00:07:23] Speaker 04:
But there's still underlying factual determinations that the board has to make before the court does.

[00:07:30] Speaker 04:
And we think that these findings are open to debate, and that because the board didn't get a chance to look at it, the veteran was unable to obtain any judicial review of these findings.

[00:07:44] Speaker 02:
Did Mr. York's testimony in any way refer to any

[00:07:49] Speaker 02:
missing records?

[00:07:53] Speaker 04:
Your honor, he did not say there are missing records, if that's your question.

[00:07:58] Speaker 04:
What he did say was that he was under medical observation for two months, and then he was moved to another base and then discharged.

[00:08:08] Speaker 02:
And the board considered that, looked at that evidence, and concluded that there was, you know,

[00:08:17] Speaker 02:
There was no basis to rule in his favor.

[00:08:20] Speaker 02:
The Veterans Court then simply considered that in reviewing the entire record.

[00:08:29] Speaker 02:
They didn't make any findings of fact.

[00:08:31] Speaker 02:
They just considered the record.

[00:08:33] Speaker 02:
Why isn't this directly parallel to Golden?

[00:08:37] Speaker 04:
Because of what the board said here, Your Honor, and what the record shows.

[00:08:41] Speaker 04:
The board's finding, again, going back to the page 78 of the appendix,

[00:08:48] Speaker 04:
The service history is entirely credible and finds that the veteran's narrative is contradicted by the weight.

[00:08:53] Speaker 04:
This is referring to the severity of his injuries.

[00:08:56] Speaker 04:
Where is this?

[00:08:57] Speaker 02:
Page 78, Your Honor.

[00:08:58] Speaker 02:
Where on page 78?

[00:08:59] Speaker 04:
The last two paragraphs.

[00:09:02] Speaker 04:
And then the very last paragraph, this is the important one.

[00:09:07] Speaker 04:
The resulting absence of credibility of his report of events and service leads the board to conclude that his reports in support of his claims of injuries

[00:09:17] Speaker 04:
which are not corroborated by the contemporaries reports that are in the record, um, are not credible.

[00:09:26] Speaker 04:
And so what the board is saying here is that what they have before them does not support what he says is the severity of his injuries.

[00:09:36] Speaker 02:
The board did not make, but did he say in any, in any testimony that

[00:09:42] Speaker 02:
there are records that are missing that you need to take a look at.

[00:09:46] Speaker 04:
He did not, Your Honor, but he doesn't have to.

[00:09:48] Speaker 04:
Because the board, I'm sorry, the secretary has a legal obligation to assist when there are potentially outstanding relevant records.

[00:09:58] Speaker 02:
And what his testimony suggests is that... Doesn't there have to be some suggestion that there are potentially outstanding records?

[00:10:08] Speaker 02:
Or is the board supposed to

[00:10:11] Speaker 02:
surmise the presence of such evidence in every case?

[00:10:16] Speaker 04:
Well, that is not the legal question here, Your Honor.

[00:10:19] Speaker 04:
The answer is that there needs to be something there, true, but what the board did here was they didn't make any findings at all.

[00:10:29] Speaker 03:
Because the Veterans Court found that that issue wasn't raised to the board.

[00:10:35] Speaker 03:
I understand your argument.

[00:10:37] Speaker 03:
Here's my problem is

[00:10:40] Speaker 03:
The legal argument you're making is only going to come up in cases where the do-de-do-assist argument wasn't explicitly raised to the board, right?

[00:10:51] Speaker 03:
For the most part.

[00:10:52] Speaker 03:
If it's raised to the board, the Veterans Court can't say it wasn't raised to the board.

[00:10:56] Speaker 03:
And if they do, that's error.

[00:10:57] Speaker 03:
That's easy.

[00:10:58] Speaker 03:
But when it's raised to the Veterans Court for the first time, as you argue here,

[00:11:05] Speaker 03:
I'm not sure what line you're trying to draw, because I think you agree that the Veterans Court can decide this issue wasn't sufficiently raised on the record.

[00:11:15] Speaker 03:
I agree, it doesn't have to be by the veteran, it just has to be raised by the record, particularly duty to assist issues.

[00:11:24] Speaker 03:
And so the Veterans Court has to be able to do that sometimes, can't it?

[00:11:28] Speaker 03:
Otherwise, if a veteran has not raised a duty to assist argument to the board, the board didn't see one, and you go up on appeal for the first time and say duty to assist, if that's fact-finding for the Veterans Court to say,

[00:11:43] Speaker 03:
it wasn't raised below, then you're automatically going to be able to get a remand on a duty to assist every time.

[00:11:51] Speaker 03:
I don't think you're arguing for that.

[00:11:53] Speaker 03:
Not at all.

[00:11:54] Speaker 03:
How are you going to explain to me what impermissible fact finding of the board to say,

[00:11:58] Speaker 03:
This wasn't raised in what's permissible to say it was raised.

[00:12:02] Speaker 04:
So again, looking, comparing Stinson and Golden, I think that that gives a clear delineation between what the court can and cannot do.

[00:12:10] Speaker 04:
When the court is merely making observations like they did in Golden.

[00:12:15] Speaker 04:
Sorry, about the record.

[00:12:17] Speaker 04:
About what the record raises.

[00:12:19] Speaker 04:
Or in the first instance in that case where they're just summarizing, is my word, for what the board actually said in its finding.

[00:12:27] Speaker 04:
That's not fact finding.

[00:12:28] Speaker 04:
That's just making a comment about the record.

[00:12:31] Speaker 04:
But in Stinson, what the court did was look at an issue that's debatable and said,

[00:12:40] Speaker 04:
We're going to weigh the evidence and we're going to say that there are, that what he said does not suggest that there's additional records out there.

[00:12:48] Speaker 04:
And we think that it does.

[00:12:50] Speaker 04:
And again, by, by, by testifying that he was held for medical observation for two months, something had to have happened during that time period.

[00:12:59] Speaker 03:
And whether, uh, whether there was- I'm still confused because what they're looking at, they're looking at the whole record and saying, is there any

[00:13:09] Speaker 03:
indication in this record that the duty to assist argument was implicated.

[00:13:15] Speaker 03:
They're going to have to opine upon that somehow.

[00:13:17] Speaker 03:
And the only argument from you is that his testimony raised it.

[00:13:24] Speaker 03:
Right, Your Honor.

[00:13:25] Speaker 03:
But you're going to say that every time on a duty to assist case.

[00:13:29] Speaker 03:
I know you're not going to admit that this rule you're asking for is going to basically say,

[00:13:37] Speaker 03:
If you raise a duty to assist argument on the first time, the Veterans Court can't actually determine whether it raised at the board.

[00:13:44] Speaker 03:
But the line you're drawing makes no sense to me.

[00:13:47] Speaker 03:
What you just said to me, I mean, first of all, I don't think we have jurisdiction to review this question at all anyway, because it's a question of what the Veterans Court factually found the record raised.

[00:13:57] Speaker 03:
That's a whole different question.

[00:13:58] Speaker 03:
I think the rule of law you're asking for is still problematic, because I can't decide any circumstance where

[00:14:06] Speaker 03:
you go to the Veterans Court and say duty to assist was violated.

[00:14:12] Speaker 03:
And it's violated because this testimony or this document shows that there should have been a duty to assist.

[00:14:21] Speaker 03:
In rejecting that and saying it wasn't raised, the board is going to have to respond to that argument.

[00:14:26] Speaker 03:
And you're every time going to say that's a fact question, not for the veterans board.

[00:14:31] Speaker 04:
I don't think so, Your Honor.

[00:14:32] Speaker 04:
Had the board here said that generally the veteran is not credible, then we wouldn't be here.

[00:14:39] Speaker 03:
But then they wouldn't be responding to your arguments.

[00:14:43] Speaker 04:
Well, the court would say that your testimony is not credible, and so anything you said doesn't tell us anything.

[00:14:52] Speaker 04:
They can rely on that fact, even under Tadlock and Stinson, to say, we're going to affirm based on this finding that the board made.

[00:15:01] Speaker 04:
And I think Chenery supports that analysis as well.

[00:15:06] Speaker 04:
Or the board could have said, these records are complete.

[00:15:10] Speaker 04:
Or they could have said, nothing the veteran says indicates that there's anything else out there.

[00:15:16] Speaker 03:
We've run through your rebuttal.

[00:15:18] Speaker 03:
Let's hear from the government now.

[00:15:31] Speaker 01:
May it please the court.

[00:15:33] Speaker 01:
The Veterans Court appropriately assessed the record in order to make a determination as to whether a duty to assist in locating potential service treatment records was reasonably raised by the veteran or the record.

[00:15:44] Speaker 01:
And this court's precedent in Robinson, Stinson, and most recently and most on point, Golden, has already recognized that the Veterans Court can conduct this type of review in determining whether an issue was reasonably raised such that the board was required to respond to it.

[00:16:00] Speaker 01:
Any further inquiry into the Veterans Court's actual determination as to whether the duty to assist was reasonably raised, of course, would be an issue outside the jurisdiction.

[00:16:12] Speaker 03:
I'm really struggling with this.

[00:16:14] Speaker 03:
Can you give me an example, maybe you can't, of where duty to assist is raised for the first time in the Veterans Court, and the Veterans Court in saying it wasn't raised below makes an improper factual finding?

[00:16:30] Speaker 01:
I can't think of a scenario off the top of my head.

[00:16:33] Speaker 01:
I'm not sure that there's no situation in which one could exist.

[00:16:37] Speaker 01:
I suppose the Veterans Court could make some sort of

[00:16:40] Speaker 01:
factual finding about the relevancy of a certain document.

[00:16:44] Speaker 01:
But in order to make that factual finding in the first place, there would have had to been a document identified, or it could have maybe stated that there was.

[00:16:51] Speaker 03:
I mean, this is my problem, because I think that Mr. Delhacquez is trying to draw a line, and I don't understand where that line is.

[00:16:59] Speaker 03:
And I fear that there is no line, and that his rule is going to swallow up our prior precedent that allows the Veterans Court

[00:17:06] Speaker 03:
to determine whether something's raised below or not.

[00:17:09] Speaker 03:
That's something, even in the veterans context, which is very pro-veteran and you have to read things in the veterans favor, it's an appellate court.

[00:17:18] Speaker 03:
It's still allowed to decide this issue wasn't raised below.

[00:17:22] Speaker 03:
We don't have the authority to hear it.

[00:17:24] Speaker 01:
I agree with Your Honor.

[00:17:26] Speaker 01:
And as we pointed out in our response brief, accepting Mr. Yerkes' view would, as Your Honor just pointed out a few minutes ago, would lead to a result where any time a claimant ever said to the Court of Appeals for the Veterans claims that the board should have discussed an issue, including a duty to assist issue, it would basically lead to an automatic remand.

[00:17:45] Speaker 01:
Because how is the Veterans Court supposed to decide whether a duty to assist issue or

[00:17:51] Speaker 01:
any issue was reasonably raised below if it's not allowed to review the record in doing so.

[00:17:57] Speaker 03:
And make a determination about what the record raises.

[00:18:00] Speaker 01:
Exactly.

[00:18:00] Speaker 03:
The veteran's going to win a lot of these cases, even if it wasn't explicitly raised, because they're going to say, oh yeah, I mean, the board should have understand when he was talking about, you know,

[00:18:10] Speaker 03:
these visits to the hospital or something like that, that there's records attached to them.

[00:18:15] Speaker 03:
You could have done that here.

[00:18:17] Speaker 01:
And certainly there are cases, I'm sure, that don't come before this court where that sort of thing has happened.

[00:18:23] Speaker 01:
And even where the Veterans Court has said that it wasn't reasonably raised, the veteran is not.

[00:18:27] Speaker 01:
completely out of luck.

[00:18:28] Speaker 01:
It could file a supplemental claim, for example, further addressing that issue explicitly to VA and the board.

[00:18:35] Speaker 01:
But again, here, all the Veterans Court did was take Mr. Yerkes' testimony that he was held at Portsmouth for around two months after his incident on the Roosevelt.

[00:18:46] Speaker 01:
And that statement was in the hearing testimony.

[00:18:49] Speaker 01:
And the Veterans Court didn't assess any weight to it or it didn't make a credibility finding.

[00:18:55] Speaker 01:
It accepted that statement at face value, and as Judge Stoll pointed out, it said that, okay, taking this statement at face value

[00:19:03] Speaker 01:
and taking into context the fact that there were already medical records from Portsmouth and Norfolk, which I don't know how familiar you are with the area, but they're essentially the same thing.

[00:19:14] Speaker 01:
And the veteran actually recognized that in front of the board, that there were already medical records on the record of proceedings from these areas in the same timeframe that Mr. Yerck was talking about.

[00:19:25] Speaker 01:
And so I don't think anything here constitutes improper de novo fact finding.

[00:19:29] Speaker 01:
Rather, it is similar to what happened in Golden, where, in that case, the veteran argued that the board should have construed that there was a secondary service connection for hearing loss reasonably raised.

[00:19:43] Speaker 01:
And the Veterans Court

[00:19:45] Speaker 01:
Cited a piece of evidence on the record and said that that did not count or said that that It didn't consider that evidence to be reasonably raising the issue.

[00:19:53] Speaker 01:
This is not a situation like Stinson where the Veterans Court made a finding that is classically reserved for the VA regarding whether in-service symptoms were service connected or the location of a lesion on a

[00:20:10] Speaker 01:
on Mr. Simpson's body and the relevance of the location of that.

[00:20:16] Speaker 01:
And again, Simpson expressly condoned the type of activity that's at place here, which is that the Veterans Court not only can but must review the record in order to determine whether an argument was reasonably raised.

[00:20:29] Speaker 01:
I'm happy to answer any other questions the court might have.

[00:20:33] Speaker 01:
Otherwise, we respectfully request that this court dismiss or affirm.

[00:20:37] Speaker 03:
Thank you.

[00:20:42] Speaker 04:
Thank you, Your Honor.

[00:20:43] Speaker 04:
So in Golden, I just want to clarify that that was not about a reasonably raised issue as far as I read it.

[00:20:49] Speaker 04:
They were just looking at the court synthesizing, as the court termed it, what the board had already done.

[00:20:57] Speaker 04:
We do recognize the challenge with this case, but we want to

[00:21:02] Speaker 04:
We want to emphasize a few things.

[00:21:03] Speaker 04:
Congress was unambiguous that any fact finding has to be done by the agency.

[00:21:07] Speaker 04:
The Veterans Court can identify undisputed facts.

[00:21:11] Speaker 04:
They can rely on other fact finding made by the agency to support its determination that it was or was not reasonably raised.

[00:21:20] Speaker 02:
What fact finding was done here by the Veterans Court?

[00:21:26] Speaker 04:
That's what it boils down to, Your Honor.

[00:21:28] Speaker 04:
We believe that what the Veterans Court engaged in

[00:21:33] Speaker 02:
I mean, clearly they were reviewing the record.

[00:21:36] Speaker 02:
They were reviewing the record, Your Honor.

[00:21:38] Speaker 02:
But I don't find any place where they made a factual finding.

[00:21:42] Speaker 04:
And again, page 14 of the appendix.

[00:21:46] Speaker 04:
14?

[00:21:47] Speaker 04:
14.

[00:21:48] Speaker 04:
Sorry, Your Honor, 14.

[00:21:50] Speaker 04:
That last paragraph, right after the site to Robinson v. Shinseki, the court says,

[00:21:57] Speaker 04:
The court is not persuaded that mention of this occurrence demonstrates that any records were generated in addition to the ones that the VA already has generated at Portsmouth were outstanding.

[00:22:12] Speaker 02:
That's simply a...

[00:22:14] Speaker 02:
an assessment of the record.

[00:22:16] Speaker 02:
It's not fact-finding.

[00:22:17] Speaker 04:
I disagree, Your Honor.

[00:22:18] Speaker 04:
And that's where the dispute is here.

[00:22:21] Speaker 04:
The Secretary just asserted that that is not fact-finding.

[00:22:25] Speaker 04:
We think it is.

[00:22:25] Speaker 04:
They're looking at what he said.

[00:22:27] Speaker 04:
They're comparing it to the rest of the record.

[00:22:30] Speaker 04:
They're weighing both sides of it and coming to an ultimate conclusion that nothing else exists.

[00:22:36] Speaker 03:
And there's no supporting... No, they're coming to the conclusion that the record does not suggest.

[00:22:41] Speaker 03:
That an argument about a duty to exist with other records exists But it's resting your honor not making a factual finding that these documents don't exist They're making the finding that the record doesn't reasonably disclose a duty to assist argument based upon that

[00:22:58] Speaker 04:
There's a distinction.

[00:22:59] Speaker 04:
There is, Your Honor, but it rests upon the finding here that what he says does not suggest that there's anything else left for the VA to do, that there isn't something else out there.

[00:23:12] Speaker 03:
We understand your argument.

[00:23:12] Speaker 03:
That's the distinction.

[00:23:15] Speaker 04:
Thank you, Your Honor.

[00:23:16] Speaker 04:
The case is submitted.