[00:00:54] Speaker 03:
Okay, our next case this morning is number 14-7129, Bell v. McDonald, Mr. Keller.

[00:01:17] Speaker 01:
Good morning, and may it please the court.

[00:01:19] Speaker 01:
My name is Matthew Keller.

[00:01:20] Speaker 01:
I'm an attorney at Odin Feldman & Tittleman in Reston, Virginia.

[00:01:24] Speaker 01:
I represent Mr. Freddie Bell, a veteran who served in the US Air Force during the Vietnam era, has a history of and risk factors for diabetes mellitus, who claimed VA benefits for diabetes mellitus, but whose claim was denied when the Department of Veterans Affairs failed to provide him with this efficient contemporaneous blood test.

[00:01:43] Speaker 03:
So what's the legal issue here?

[00:01:45] Speaker 01:
The legal issue here is actually relatively narrow and it ties in very closely with the jurisdictional issue.

[00:01:54] Speaker 01:
This court has jurisdiction over this dispute under 38 U.S.C.

[00:01:59] Speaker 01:
7292.

[00:02:01] Speaker 01:
This court has jurisdiction review the decision of the Veterans Court in this case with respect to the validity of a decision of that court on a rule of law or of any statute or regulation or any jurisdiction.

[00:02:12] Speaker 03:
So what's the legal issue?

[00:02:14] Speaker 03:
What's the legal issue?

[00:02:16] Speaker 03:
The legal issue, Your Honor, is the way you describe it, it sounds factual.

[00:02:22] Speaker 03:
So what's the legal issue?

[00:02:23] Speaker 01:
At the lower level, it is a factual issue.

[00:02:26] Speaker 01:
At discourse level, it is a legal issue because in adopting the VA's decision making in this case, the Veterans Court used improper interpretation of its statutory rule of duty to assist.

[00:02:43] Speaker 00:
How can it be a factual issue below and a legal issue now?

[00:02:47] Speaker 00:
Aren't you asking us to

[00:02:49] Speaker 00:
either apply a lot of facts or asking us to reweigh the factual determination?

[00:02:56] Speaker 01:
No, Your Honor.

[00:02:57] Speaker 01:
At this stage, all my client is asking is that this court deem the interpretation by the lower court, which was that mere passage of time without more evidence by the veteran is an insufficient basis.

[00:03:10] Speaker 01:
Isn't that a factual issue?

[00:03:11] Speaker 01:
I do not believe that it is, Your Honor.

[00:03:13] Speaker 01:
It's not a factual issue because

[00:03:16] Speaker 01:
The challenge here is to the basic rule of law which the Veterans Court has applied across the board in a kind of a one-size-fits-all.

[00:03:23] Speaker 02:
What is your conception of what the law requires?

[00:03:28] Speaker 01:
That is a difficult question to answer because it is a fact, unfortunately, a fact-specific question of what the law would specifically require at the lower level.

[00:03:38] Speaker 01:
What I'm challenging here is the Veterans Court's decision that across the board, if a veteran

[00:03:45] Speaker 01:
time passage between when the veteran is evaluated for a particular claim and when that decision on the claim is actually made, whether or not the veteran is responsible.

[00:03:57] Speaker 00:
There's no law or regulation that addresses that specific issue.

[00:04:01] Speaker 00:
What you're really asking us to do is to consider under the duty to assist regulation that

[00:04:12] Speaker 00:
that the VA should have issued another medical examination, correct?

[00:04:18] Speaker 00:
But the decision below was that there was no requirement for another medical evaluation because the last one was current enough.

[00:04:28] Speaker 01:
And that decision below was made on the premise, the legal principle developed by the Veterans Court, that mere passage of time without more evidence by the Veteran himself or herself is an insufficient basis,

[00:04:41] Speaker 01:
for the veteran, or excuse me, for the VA to be required to go back and retest a veteran.

[00:04:48] Speaker 01:
That particular interpretation of the law is what Mr. Bell challenges.

[00:04:53] Speaker 01:
It would certainly be dispositive in this case if, instead of applying across the board to all veterans, that the mere passage of time would have more evidence.

[00:05:01] Speaker 00:
I'm giving you the benefit of the doubt on that.

[00:05:03] Speaker 00:
Wouldn't you still say, though, that what we have here at minimum is an application of law to facts?

[00:05:11] Speaker 01:
Not particularly, Your Honor.

[00:05:13] Speaker 01:
Specifically, in this case, my client is not asking that this court reevaluate his claim in any way.

[00:05:21] Speaker 01:
Simply that this court directs the Veterans Court to interpret this rule of law, duty to assist, in a different manner.

[00:05:33] Speaker 01:
that is more permissive for my client to actually be able to get back into the VA and get those medical tests.

[00:05:39] Speaker 03:
So what's the principle you're arguing for, that any time the veteran asks for an exam, he gets it?

[00:05:44] Speaker 01:
No, Your Honor.

[00:05:44] Speaker 01:
I think in this case, this is a bit of a different case than, you know, Your Honor, the Milk case, for example.

[00:05:51] Speaker 01:
This is not a case about my client's loss of hearing, which is the case upon which the Veterans Court relies for this principle of law.

[00:06:00] Speaker 01:
especially if it's the day after the veteran separates from the military, the time from that day forward is not going to be attributed to that veteran's service and would not have any bearing on a disability claim.

[00:06:12] Speaker 01:
In this case, and it's recognized, at least implied by the regulations and statutes... What's the legal principle you want?

[00:06:20] Speaker 01:
That specifically in a case of a veteran who has a documented history, the documented history is on the record, Your Honor.

[00:06:28] Speaker 01:
of a history of and risk factors for diabetes mellitus, also is in a presumptive category of veteran.

[00:06:36] Speaker 01:
In this case, the law actually presumes if we have a proper diagnosis of diabetes mellitus that this veteran will receive benefits for diabetes mellitus.

[00:06:45] Speaker 03:
So what's the principle?

[00:06:46] Speaker 03:
That there has to be a test every six months, eight months, a year?

[00:06:50] Speaker 03:
What's the rule?

[00:06:52] Speaker 01:
On timing, Your Honor, I think

[00:06:56] Speaker 01:
I would be speculating about other veterans cases to make a very broad rule and I think that that would be incorrect on my part.

[00:07:04] Speaker 01:
In this case, nine months.

[00:07:07] Speaker 01:
In this case, nine months is too much for diabetes mellitus.

[00:07:13] Speaker 01:
Ultimately, in the facts of this case.

[00:07:15] Speaker 03:
Nine months is too much under the facts of this case.

[00:07:17] Speaker 03:
It doesn't sound like a legal principle.

[00:07:20] Speaker 01:
It sounds like a fact issue.

[00:07:24] Speaker 01:
Disagreement that my client has with the Veterans Court's decision is that the Veterans Court has applied a blanket rule that in any case the veteran himself or herself has to prove that he or she has a particular disability or new evidence of a disability between the moment that the veteran actually is initially evaluated or finally evaluated and that final determination is made by... Let's know what happened here.

[00:07:52] Speaker 00:
Your client had a medical evaluation nine months before he asked for the next one.

[00:07:58] Speaker 00:
So he's been evaluated.

[00:08:00] Speaker 01:
He was evaluated.

[00:08:02] Speaker 00:
And the decision that the VA made was that another test was not necessary based on the prior evaluation.

[00:08:13] Speaker 00:
Correct.

[00:08:13] Speaker 00:
That's a factual determination.

[00:08:16] Speaker 01:
Your Honor, that at the VA level of the factual determination, but when the Court of Appeals for Veterans Claims decided that across the board, if we have a nine-month gap or a five-year gap... You didn't say that.

[00:08:30] Speaker 03:
Show me where they said that.

[00:08:32] Speaker 03:
I didn't read the opinion as stating an absolute rule.

[00:08:36] Speaker 03:
Where do I get that from?

[00:08:51] Speaker 01:
I'm in the Joint Appendix, J.A.

[00:08:56] Speaker 01:
6, which is page 3 of the opinion.

[00:08:58] Speaker 01:
The first full paragraph reads, the court also rejects Mr. Bell's allegations that the December 2012 medical examination and March 2012 hemoglobin tests are inadequate because they are almost, they were almost a year old when the board issued its decision as the court, and this is where the principle of law comes out.

[00:09:18] Speaker 01:
As this court has explained,

[00:09:20] Speaker 01:
interpreting the duty to assist, quote, the mere passage of time without more does not render an adequate medical opinion.

[00:09:28] Speaker 01:
That across the board determination is an incorrect interpretation of the statutory duties.

[00:09:34] Speaker 03:
So your argument is the mere passage of time is enough?

[00:09:38] Speaker 01:
My argument is that the mere passage of time without more is the incorrect rule of law, especially in the case particularly here.

[00:09:47] Speaker 01:
I don't want to get too much into facts in this case.

[00:09:49] Speaker 01:
That's not why we're here.

[00:09:51] Speaker 01:
But in this case, Mr. Bell, the veteran, doesn't even have a way to prove that he has diabetes mellitus without an actual blood test.

[00:10:00] Speaker 01:
He has a history that's documented in his record.

[00:10:04] Speaker 01:
Again, he's in a presumptive class of individuals who served in a particular place, in this case, the Vietnam Theater, during the Vietnam era.

[00:10:12] Speaker 01:
And the rule itself, the regulations that the VA has itself, would

[00:10:19] Speaker 01:
give him a presumptive service connection for that disability if we could just get the blood test to show it.

[00:10:27] Speaker 01:
And this is where the issue is on duty to assist.

[00:10:32] Speaker 01:
Mr. Bell is not capable of determining, unlike if he had a broken arm or a sore back or hearing loss or something of that nature, he isn't capable of actually saying, my blood says that I have diabetes mellitus.

[00:10:47] Speaker 02:
Right.

[00:10:47] Speaker 02:
But then there was that hemoglobin test taken in March 2012, right?

[00:10:52] Speaker 02:
Yes, Your Honor.

[00:10:53] Speaker 02:
And then that level was below the level for a diabetes diagnosis, right?

[00:11:01] Speaker 01:
We do not dispute the fact that each test is below the formal level for diagnosis.

[00:11:07] Speaker 02:
And when was the filing date for Mr. Bell's claim here?

[00:11:11] Speaker 01:
Which claim, Your Honor?

[00:11:12] Speaker 01:
The claim here today?

[00:11:14] Speaker 01:
Yeah.

[00:11:15] Speaker 01:
Is it 2008, 2009?

[00:11:17] Speaker 01:
Oh, forgive me.

[00:11:19] Speaker 01:
The original claim.

[00:11:21] Speaker 01:
Excuse me.

[00:11:27] Speaker 02:
For service connection died duty back to the time when he was in the Vietnam War era.

[00:11:33] Speaker 01:
You know, forgive me.

[00:11:39] Speaker 01:
There were a lot of back and forth from that answer.

[00:11:41] Speaker 02:
It's been a few years.

[00:11:42] Speaker 02:
2008 or 2009?

[00:11:45] Speaker 02:
And so if he were to get another test, medical test, and then on that day, 2015, it was determined that he did have such an elevated blood glucose level that it would merit a diagnosis of diabetes.

[00:12:05] Speaker 02:
Then would he get a claim that goes all the way back to the date of 2008, 2009?

[00:12:11] Speaker 02:
The benefits would start clicking then.

[00:12:14] Speaker 02:
It wouldn't start clicking on the date that he finally got a blood glucose level that was so elevated that it was a diagnosis of diabetes, right?

[00:12:23] Speaker 01:
I believe he would, actually.

[00:12:25] Speaker 01:
It would be from that date forward.

[00:12:27] Speaker 01:
Assuming that we restart the process, and I believe that it built into your question.

[00:12:30] Speaker 02:
No, like let's say there was a remand.

[00:12:33] Speaker 01:
If there were a remand?

[00:12:34] Speaker 02:
And then he had the test, and then the test in 2015 said he had the diabetes.

[00:12:41] Speaker 02:
Would his

[00:12:42] Speaker 02:
Benefits go all the way back to the filing date of this claim, 2008-2009.

[00:12:47] Speaker 01:
No, Your Honor, that's not what I'm asking for here.

[00:12:50] Speaker 02:
What we're asking for instead... It would start on the date of the medical exam test that finally had a blood glucose level enough for diabetes?

[00:13:02] Speaker 01:
Yes.

[00:13:03] Speaker 01:
What I'm arguing today, Your Honor, is not that he has diabetes mellitus.

[00:13:08] Speaker 01:
What I'm arguing is that the VA's duty to assist

[00:13:11] Speaker 01:
and in this court specifically, the Veterans Court's determination that that duty was met is incorrect.

[00:13:19] Speaker 01:
And instead, the Veterans Affairs, Department of Veterans Affairs owes him an additional test because of the nature of that disorder and because of his past history.

[00:13:32] Speaker 03:
Okay.

[00:13:32] Speaker 03:
You want to save the rest of your time for a follow-up?

[00:13:34] Speaker 01:
Yes, I would.

[00:13:35] Speaker 01:
Thank you.

[00:13:37] Speaker 03:
Thank you, Mr. Keller.

[00:13:41] Speaker 03:
Ms.

[00:13:42] Speaker 03:
Koenig, is that how you pronounce it?

[00:13:59] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:14:01] Speaker 04:
This case presents a straightforward issue, whether the veterans were aired in determining that the VA met its duty to assist.

[00:14:08] Speaker 04:
Here, the court lacks jurisdiction over that question because Mr. Bell's appeal challenges the adequacy of his medical examination, which this court has found to be a factual determination.

[00:14:19] Speaker 04:
First, addressing the jurisdictional question, under Prinke versus Shinseki, this court determined that the adequacy of a medical examination is a question of fact.

[00:14:32] Speaker 04:
Here, Mr. Bell received a medical examination in December of 2012

[00:14:38] Speaker 04:
And Mr. Bell's challenge is to the fact that the examiner at that time relied on blood tests, which were from March and April of 2012, rather than taking a new blood test.

[00:14:50] Speaker 04:
That, in this case, challenges the factual sufficiency of the medical examination that he received.

[00:15:06] Speaker 03:
argues that the legal issue here is what the duty to assist requires and under the statute... Does the VA have any policy or procedure for determining how often to test people who are diabetes suspects?

[00:15:26] Speaker 03:
I guess this guy would fall into that category.

[00:15:29] Speaker 04:
Your Honor, the VA doesn't have a rule of law on that issue, rather it is an exact specific question.

[00:15:35] Speaker 03:
I'm asking about a rule of law.

[00:15:37] Speaker 03:
I'm asking about whether that's a policy or practice.

[00:15:40] Speaker 03:
It's how often to test people.

[00:15:42] Speaker 04:
Well, Your Honor, I would argue that that's a very fact-intensive question, although the clinical practice guidelines by the American Association for Clinical Endocrinologists, which I cited in my brief, suggest that

[00:15:57] Speaker 04:
an individual with impaired fasting glucose should be tested on an annual basis.

[00:16:02] Speaker 04:
And here, the blood tests that were relied on in the December examination were within that one-year timeframe.

[00:16:08] Speaker 04:
Although the VA doesn't use that as a per se rule, it's instructive to show that these tests, that the VA was reasonable in concluding that the March results were sufficient.

[00:16:22] Speaker 02:
But why is there a practice of doing annual tests for people in that category?

[00:16:28] Speaker 04:
Why is that?

[00:16:32] Speaker 04:
Well, Your Honor, an individual with impaired fasting glucose tends to show elevated blood sugar numbers, which are still below the threshold.

[00:16:42] Speaker 04:
And the practice guidelines suggest that on an annual basis, you would measure that, I guess, in case the blood test results have gotten worse.

[00:16:57] Speaker 00:
averages blood sugar levels on a prior three-month basis.

[00:17:02] Speaker 00:
So it would make sense that you do this annually, especially in a situation where, as this veteran, he's pre-diabetic.

[00:17:09] Speaker 00:
He's been diagnosed pre-diabetic, meaning he's on the threshold just to become diabetic.

[00:17:17] Speaker 04:
Yes, Your Honor.

[00:17:18] Speaker 04:
The VA examiner in 2012 did diagnose him with impaired fasting glucose, noting that he had elevated blood sugar.

[00:17:24] Speaker 04:
Although his numbers in 2012 are consistent with the numbers going all the way back to 2007, which are summarized in the VA examination at J39, Mr. Bell consistently had numbers that were below the diabetic threshold going every, you know, testing every few months all the way from 2007 to 2012.

[00:17:48] Speaker 04:
So the VA, again, the VA examiner

[00:17:54] Speaker 04:
looked at all of Mr. Bell's medical records, including his risk factors for diabetes, and concluded that an additional test was not necessary at that time.

[00:18:03] Speaker 04:
That was a factual question, which this court lacks jurisdiction to review.

[00:18:09] Speaker 02:
Just for information purposes, what if the VA had done another blood test in December of 2012, even though the March 2012 blood test showed no diabetes?

[00:18:21] Speaker 02:
But the December 2012

[00:18:23] Speaker 02:
blood test did show diabetes, then what would happen?

[00:18:27] Speaker 02:
Would you grant benefits dating all the way back to the filing date of the claim in 2008?

[00:18:35] Speaker 04:
If Mr. Belt had shown in December of 2012 current diagnosis of diabetes, I believe that the benefits would begin from the diagnosis date.

[00:18:52] Speaker 04:
And I'll note that the Veterans Court also made, although Mr. Keller characterizes the Veterans Court as making a legal conclusion on the passage of time, the Veterans Court actually made factual conclusions on JA5.

[00:19:10] Speaker 04:
The Veterans Court notes that Mr. Bell doesn't identify any specific deficiencies in the examination that he received, other than relying on the blood test results from March.

[00:19:19] Speaker 04:
And additionally, the Veterans Court on JA6 found that Mr. Bell doesn't allege that his condition has worsened or had worsened between March 2012 and December of 2012.

[00:19:32] Speaker 04:
And again, these factual conclusions are something that's outside of court's jurisdiction.

[00:19:39] Speaker 02:
To follow up, if it had been longer than a year, then would the VA have conducted another blood test in light of the practice you were describing?

[00:19:50] Speaker 04:
Your Honor, if the results had been over a year, it still would have been within the veterans who are within the VA examiner's discretion.

[00:20:04] Speaker 04:
I can't say for sure that they would have necessarily provided a new blood test because the VA examiner was looking at all of the medical records, including the fact that his blood sugar numbers were consistently below that diabetic threshold.

[00:20:18] Speaker 04:
Even if the tests had been more than a year old, we would still argue that this is a factual determination to the sufficiency of the medical examination.

[00:20:29] Speaker 04:
Unless the judges have further questions.

[00:20:35] Speaker 04:
For the reasons stated today and in our brief, we would ask the court to dismiss the appeal for lack of jurisdiction or alternatively to affirm the decision of the Veterans Court.

[00:20:44] Speaker 03:
Thank you.

[00:20:46] Speaker 03:
Mr. Keller.

[00:20:57] Speaker 01:
Thank you.

[00:20:58] Speaker 01:
Just a couple of rebuttal points.

[00:21:02] Speaker 01:
First, the case of Prinkley v. Shinseki.

[00:21:07] Speaker 01:
Unlike the case we have today, in that case, the veteran had not only been diagnosed and received benefits from the VA on the basis of diabetes mellitus.

[00:21:20] Speaker 01:
That was actually a case about taking the benefits away from him.

[00:21:24] Speaker 01:
fighting to the very end to try to maintain his right to getting disability benefits for diabetes mellitus.

[00:21:32] Speaker 01:
There was a thorough examination of his case by an endocrinologist and other medical professionals.

[00:21:38] Speaker 01:
In this case, well, Mr. Bell has began getting the facts, unfortunately, but as Mr. Bell has attempted repeatedly to get just an initial contemporaneous blood test, the VA has refused to give him that.

[00:21:55] Speaker 01:
In this case, Mr. Bell can't even properly establish his service-connected disability because the VA won't assist him in obtaining the necessary evidence to substantiate that claim that he has service-connected diabetes mellitus, which again, under the VA's regulations, is a presumed condition, presumed for service connection if he can actually find a diagnosis for it because he served in Vietnam during that era.

[00:22:24] Speaker 01:
Mr. Bell asks that this court vacate the decision of the Court of Appeals for Veterans Claims and remand a case to it with instructions that the Veterans Court's incorrect statutory interpretation that the duty to assist does not require a contemporaneous blood test for a veteran with otherwise presumptive diabetes mellitus and a history of and risk factors for diabetes.

[00:22:45] Speaker 01:
In order to live up to his duty to assist, must be overturned.

[00:22:50] Speaker 01:
Nothing else in this case will work for a person.

[00:22:53] Speaker 01:
who actually has a history of this hidden condition, but which he cannot himself self-diagnose.

[00:23:00] Speaker 03:
Do you have any other questions, Your Honor?