[00:00:00] Speaker 00:
15-7015 Newberry versus McDonald.

[00:00:04] Speaker 00:
Mr. Brown, whenever you're ready.

[00:00:07] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 03:
Good morning, Your Honors.

[00:00:11] Speaker 03:
I've reserved two minutes for rebuttal.

[00:00:15] Speaker 03:
Two minutes for rebuttal.

[00:00:17] Speaker 03:
Thank you, Your Honor.

[00:00:20] Speaker 03:
Henry Newberry was drafted into the Army in 1966.

[00:00:25] Speaker 03:
He complained while he was still in the Army,

[00:00:28] Speaker 03:
that he had been identified with a condition of an enlarged heart.

[00:00:32] Speaker 03:
And it's noted in official Army records that the doctors identified his complaint

[00:00:39] Speaker 01:
as possible or suggest above cardio mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally mcgally

[00:01:04] Speaker 03:
I cited the cases of Wilson v. Principi and Morgan v. Principi in which this court identified that the Veterans Benefits Act of 2002 enlarged Section 7292 to give this court a kind of case jurisdiction in cases such as this.

[00:01:31] Speaker 03:
Let's see here.

[00:01:33] Speaker 03:
Basically, in the cases, the court said if a governing rule of law would have been altered by adopting the position being urged, then this court has jurisdiction to take the case and decide the case.

[00:01:50] Speaker 04:
I believe your position was that the board back in the late 60s failed to apply the presumption of silence, right?

[00:01:58] Speaker 03:
Yes, sir.

[00:01:59] Speaker 04:
And then in this appeal, in this proceeding, both the board and the Court of Appeals for Veterans Claims

[00:02:06] Speaker 04:
agreed with you or for purposes of deciding the case agreed with you that the board back in the late 60's did not apply the presumption of silence, right?

[00:02:15] Speaker 04:
Yes, Your Honor.

[00:02:16] Speaker 04:
And then both the board and the Veterans Court nevertheless concluded that your cue claim should be denied because when they reviewed the evidence in the record at the time in the late 60's

[00:02:30] Speaker 04:
They both agreed with each other that as far as they could tell from the record, your client did not suffer from heart disease when he separated from the military in 1968.

[00:02:42] Speaker 04:
Isn't that what the board and the court said below?

[00:02:47] Speaker 03:
The board and the court said, Your Honor, that it doesn't matter if they made the mistake under the presumption of soundness because Mr. Dewberry failed to meet

[00:03:01] Speaker 03:
and or unestablished, undebatably established the fact that he has cardio Magali or an enlarged heart at the time of his discharge.

[00:03:12] Speaker 03:
That's the exact quote, your honor.

[00:03:14] Speaker 03:
And first of all, I don't believe that undebatably established is a veteran's burden at any time.

[00:03:20] Speaker 00:
i think the veterans burden isn't as likely is not burden which well i don't know which i'm not the key point here usually makes all different right and it's not a regular case so just back to get checked question if there was if the board in the court of evidence claims both sort of that even

[00:03:40] Speaker 00:
that there was error in terms of the application of presumption of solemnness.

[00:03:43] Speaker 00:
In other words, accepting your position, your legal position.

[00:03:47] Speaker 00:
They still said that it's not absolutely clear that a different result would have been sued.

[00:03:52] Speaker 00:
And that's the standard for clear and unmistakable error, is it not?

[00:03:57] Speaker 03:
Yes, Your Honor.

[00:03:59] Speaker 00:
And is it that not, going back to Judge Lurie's question, a factual matter that we don't have?

[00:04:06] Speaker 00:
Why would we have jurisdiction to second guess

[00:04:08] Speaker 00:
the board or the CAVC with respect to whether or not a different result would have ensued.

[00:04:15] Speaker 03:
I go back to Wilson versus Principi, Your Honor, and the fact that in this case, the governing law being the presumption of soundness shifts the burden of proof.

[00:04:29] Speaker 03:
And burden of proof is a fundamental element of any decision-making court or administrative judicial process.

[00:04:36] Speaker 03:
In this case,

[00:04:37] Speaker 03:
the burden of proof is shifted.

[00:04:39] Speaker 03:
In this case, this court in Wagner has specifically held...

[00:04:46] Speaker 04:
The burden, if the government was trying to prove that Mr. Dewberry suffered from some kind of heart disease before 1966, then yes, that would be the government's burden to prove that and then overcome the presumption of soundness that when he entered the military in 1966, in fact, his heart was fine.

[00:05:09] Speaker 04:
The problem for you, I think, is that the focus of the Board and the Veterans Court's decisions was what was Mr. Dewberry's condition when he was discharged in 1968.

[00:05:20] Speaker 04:
The presumption of soundness does not apply to discharge in 1968.

[00:05:28] Speaker 04:
The presumption of soundness only applies to what was his condition when he entered service in 1966.

[00:05:36] Speaker 04:
Do you follow the point I'm trying to make?

[00:05:40] Speaker 03:
Your Honor, I believe that Mr. Dewberry's condition at the time he was discharged is important, but I also believe it was also important at the time that the Department of Veterans Affairs made its first rating decision.

[00:05:57] Speaker 03:
And when it made its first rating decision, there was a military record that was suggestive of Cardio Magali, and there was also

[00:06:06] Speaker 03:
a VA examination report suggestive of cardio-magali, or actually they use the term LVH, which is also a condition that shows an enlarged heart muscle.

[00:06:20] Speaker 03:
In fact, the Department of Veterans Affairs ordered additional testing, and instead of additional testing, all that was done was a doctor put a stethoscope on the man's chest and listened and said, I don't hear anything.

[00:06:36] Speaker 03:
I think to use a sports metaphor, at that time, the VA punted and said, if there is anything here, it pre-existed military service and wasn't aggravated.

[00:06:47] Speaker 03:
But there was no clear and unmistakable evidence on the government side to show that that happened.

[00:06:54] Speaker 03:
And they don't quote a clear and unmistakable evidence burden.

[00:06:57] Speaker 03:
They just say, like I said in my metaphor, they punted and said, if there's something here, it pre-existed service, so we're going to deny the claim.

[00:07:06] Speaker 03:
And our argument is that at that time when the government invoked the presumption of soundness, the burden shifted.

[00:07:16] Speaker 03:
And the burden was no longer on the veteran, it was on the government.

[00:07:20] Speaker 03:
And the government didn't meet its burden.

[00:07:22] Speaker 03:
And for the sake of this argument, the government has virtually admitted that it has not met that burden, that higher burden.

[00:07:32] Speaker 03:
But it said it doesn't matter because he didn't meet any burden.

[00:07:36] Speaker 03:
but the government investigated the case.

[00:07:39] Speaker 03:
The government didn't deny the case flatly on its merits at first.

[00:07:45] Speaker 03:
The government sent the man for two examinations and one examination was suggestive of the condition and one was cursory at best and I'm paraphrasing basically what was said was the second doctor said I didn't hear anything and moved on to the next issue.

[00:08:04] Speaker 03:
So there was no real

[00:08:06] Speaker 03:
further testing to do that.

[00:08:08] Speaker 03:
But the government took that on.

[00:08:10] Speaker 03:
And the government did that, and then the government said, if it's there, pre-exist service.

[00:08:16] Speaker 03:
And that invokes the burden of proof shifting under the presumption of soundness.

[00:08:21] Speaker 03:
And the government never met that burden.

[00:08:23] Speaker 04:
And my argument is that... How do you understand how the presumption of soundness works?

[00:08:31] Speaker 04:
How did the presumption of soundness

[00:08:33] Speaker 04:
Excuse me.

[00:08:35] Speaker 04:
Why does it matter with respect to trying to assess whether he had a service-connected disease at the time he was discharged in 1968?

[00:08:46] Speaker 03:
My understanding of the presumption of soundness comes from my reading of Wagner and its progeny.

[00:08:52] Speaker 04:
And in Wagner... But don't go to those cases.

[00:08:55] Speaker 04:
Just tell me how it operates here on the fascinating case.

[00:09:00] Speaker 03:
In this case, the presumption of soundness applied

[00:09:03] Speaker 03:
when the government says it pre-existed service.

[00:09:10] Speaker 04:
Right.

[00:09:10] Speaker 04:
And now the government walked away from that in this proceeding.

[00:09:14] Speaker 04:
They said, we agree.

[00:09:16] Speaker 04:
We assume for purposes of this case, Mr. Dew Ferry was healthy when he entered service in 1966.

[00:09:23] Speaker 04:
So what left is there to consider with regard to the presumption of soundness in terms of resolving this case?

[00:09:35] Speaker 03:
But Your Honor, at that time, the presumption of soundness also invoked a duty on the government to prove by clear and unmistakable evidence that his condition did not pre-exist and was not aggravated, and the government never met that burden.

[00:09:52] Speaker 03:
And if the government has the burden of proof and it doesn't meet its burden, it shouldn't be permitted to prevail.

[00:09:58] Speaker 03:
Just like if we were in a criminal case, if the government has a person under arrest,

[00:10:04] Speaker 00:
it has a burden of proof working in prison that person but the difficulty here is and maybe i'm just misunderstanding it and you with the government can tell me why i'm wrong but we're dealing with the CUQ claim we're dealing with the case that was over and done with and so we have very limited criteria under which your client or any plaintiff can come in and then seek to revisit all of this

[00:10:31] Speaker 00:
And so I think what we're talking about, or at least I've been talking about, is how you've met a standard under the QK claim that the result would have somehow been different.

[00:10:42] Speaker 00:
And it's clear to me that the burden is on you to establish that.

[00:10:46] Speaker 00:
Is it not?

[00:10:48] Speaker 00:
And bottom line is, I don't understand why that's a factual, not a factual matter, of which we have jurisdiction.

[00:10:57] Speaker 03:
Your Honor, once again, I quote

[00:11:00] Speaker 03:
the Larson case from this court and to invoke what a cue claim contains and the cue claim contains a mistake in the law or an application of the facts and in this case we have a mistake in the law because the burden of proof was on the government and the government never met its burden of proof.

[00:11:27] Speaker 03:
And this gives us a material.

[00:11:31] Speaker 00:
Well, is it not correct that our cases, including some recent ones, I mean, established that for Q plane purposes, you have to establish that the error was undebatable and would have manifestly changed the outcome?

[00:11:44] Speaker 00:
Is that not the standard you understand to apply?

[00:11:48] Speaker 00:
Exactly, Your Honor.

[00:11:49] Speaker 00:
Exactly.

[00:11:51] Speaker 00:
So if the government's conceded, as Judge Chen pointed out, this whole presumption of solemnness, and says, you're right about that.

[00:11:59] Speaker 00:
If you prevail on that, you're left with establishing that the error was undebatable and would have manifestly changed the outcome.

[00:12:07] Speaker 00:
Exactly.

[00:12:08] Speaker 00:
Can the CAVC and the board reach that question and said no?

[00:12:13] Speaker 00:
And is that not a factual question?

[00:12:19] Speaker 03:
I think it's the matter.

[00:12:21] Speaker 03:
What we're dealing with is a principle, Your Honor.

[00:12:23] Speaker 03:
The principle is the principle that is associated with the shifting burden of proof as it attaches to the facts of the case.

[00:12:35] Speaker 03:
The burden of proof was on the government.

[00:12:36] Speaker 03:
The government didn't meet its burden of proof.

[00:12:38] Speaker 00:
Not on the cuplane portion of it, right?

[00:12:41] Speaker 00:
You're taking us back, as you have, to the presumption of soundness principle.

[00:12:46] Speaker 03:
Yes, Your Honor, exactly.

[00:12:48] Speaker 03:
What we have here is an issue of the law

[00:12:52] Speaker 03:
that wasn't followed, and there is no... Well, let's say you prevail on that.

[00:12:57] Speaker 00:
Let's say, okay, you're right about that.

[00:13:01] Speaker 00:
Given that this is a Q claim, do you disagree that you have to go beyond that in order to establish, to prevail in this circumstance?

[00:13:10] Speaker 03:
Your Honor, the elements that you just laid out for us, the undebatability, this is undebatable.

[00:13:16] Speaker 03:
The facts, both sides of the case are working with the same set of facts.

[00:13:22] Speaker 03:
The facts are that the burden of proof was never met by the government under the presumption of soundness.

[00:13:29] Speaker 03:
And that's exactly my point, Your Honor.

[00:13:31] Speaker 01:
But you keep mentioning the word facts.

[00:13:35] Speaker 01:
And as Chief Judge has mentioned, application of the law to facts is not within our jurisdiction.

[00:13:42] Speaker 03:
Yes, Your Honor, but this is about the burden of proof.

[00:13:46] Speaker 03:
And the burden of proof is a rule of law.

[00:13:51] Speaker 03:
And if you apply the burden of proof to the wrong party, you can't get a correct result.

[00:13:58] Speaker 03:
And that's the clear and unmistakable error.

[00:14:01] Speaker 03:
That's exactly it.

[00:14:02] Speaker 03:
In a nutshell, that's the exact point I'm making.

[00:14:06] Speaker 03:
The point I'm making is there is no debate about the facts.

[00:14:10] Speaker 03:
And the burden of proof is applied to the wrong party.

[00:14:13] Speaker 03:
And that's why we've consistently lost this case rather than won this case.

[00:14:19] Speaker 03:
is because a burden of proof is being applied to us when the burden of proof had shifted and the government didn't meet its burden of proof.

[00:14:30] Speaker 04:
Who has the burden of proof?

[00:14:35] Speaker 04:
Do they have some burden to prove that it's clearly and unmistakably obvious from the record that Mr. Dewberry

[00:14:46] Speaker 04:
was healthy at the time he was discharged in 1968?

[00:14:49] Speaker 04:
Is that your position?

[00:14:50] Speaker 03:
Yes, Your Honor.

[00:14:52] Speaker 03:
The burden had shifted to them when they invoked... So it shifted all the way.

[00:14:57] Speaker 04:
It shifted not only on proving, presuming that he was healthy, but it was also, there's some strong presumption that he was unhealthy when he was discharged in 1968.

[00:15:09] Speaker 04:
That's your position on, in terms of the presumption.

[00:15:14] Speaker 03:
The presumption shifted the burden of proof to them and hadn't come back.

[00:15:19] Speaker 04:
On what?

[00:15:20] Speaker 04:
On the burden of proof on what?

[00:15:23] Speaker 04:
That he was healthy when he entered service in 1966, right?

[00:15:29] Speaker 03:
Yes, Your Honor.

[00:15:30] Speaker 04:
But it has nothing to do with the presumption of silence.

[00:15:32] Speaker 04:
It has nothing to do with what was the status of his health when he was discharged in 1968.

[00:15:38] Speaker 04:
Do you agree with that?

[00:15:48] Speaker 03:
That's a difficult question to answer, Your Honor.

[00:15:50] Speaker 03:
I think that once the burden of proof shifted to the government, it was off of his shoulders until they met their burden.

[00:15:59] Speaker 00:
And what was their burden?

[00:16:00] Speaker 00:
That's what we're trying to ascertain.

[00:16:02] Speaker 00:
What, in your view, was their burden?

[00:16:03] Speaker 03:
It was a clear and unmistakable evidence burden, Your Honor, to prove two things, that the condition did pre-exist military service and that there was no aggravation of the condition during military service.

[00:16:17] Speaker 00:
Okay, why don't we hear from the government here into recess for rebuttal time.

[00:16:21] Speaker 00:
We'll restore a minute for rebuttal.

[00:16:22] Speaker 00:
Thank you, Your Honor.

[00:16:23] Speaker 00:
Thank you.

[00:16:28] Speaker 02:
Good morning, House.

[00:16:31] Speaker 02:
May it please the Court?

[00:16:34] Speaker 02:
Mr. Dewberry's appeal should be dismissed for lack of jurisdiction because it presents an issue of fact, Your Honor.

[00:16:39] Speaker 00:
But can you speak to what your friend on the other side was talking about all this time and try to clarify for us what the government's view is, how the presumption of soundness factor played into all of this?

[00:16:51] Speaker 02:
Yes, Your Honor.

[00:16:53] Speaker 02:
The presumption of soundness here was assumed that it wasn't applied.

[00:16:59] Speaker 02:
An error was assumed, not necessarily admitted, but assumed for the purposes of

[00:17:03] Speaker 02:
uh... clarifying any any uh... clearly that you're going to be right so what that so that the uh... this is a question of fact comes in the uh... board and then the veterans court on affirming the board look at the fact that existed at the time

[00:17:21] Speaker 00:
in nineteen sixty eight uh... because this is a q plan as you're on so that the fact at that time fact that we look at before we get to the q plane part of it what going on with respect to the presumption of soundness where does the case stand if the government is actually generally accepting and conceding that he's right on that the decision on the presumption of soundness was that

[00:17:44] Speaker 02:
if the condition of cardio megalit existed at the time, which the evidence isn't all clear that it did.

[00:17:53] Speaker 02:
But if it did, then it would have pre-existed service.

[00:17:56] Speaker 02:
That's the statement that was made by the board.

[00:18:00] Speaker 02:
But there is no finding that it did exist at the time.

[00:18:06] Speaker 02:
Indeed, in the board decision and the Veterans Court affirmation,

[00:18:11] Speaker 02:
It was reiterated that the evidence didn't establish that cardiomyogally existed at the time.

[00:18:18] Speaker 02:
And if you look at the evidence in the timeframe that's important, there's no finding of cardiomyogally in the evidence at the time.

[00:18:30] Speaker 00:
What timeframe are we looking at now?

[00:18:32] Speaker 00:
Are we looking at after service, during and after service or pre-service?

[00:18:36] Speaker 02:
We're looking at his induction into service in 1966, and there was no Cardio Magali noted then.

[00:18:43] Speaker 02:
And then if we look at also when he was released from service in 1968, there's some notes that state that the veteran stated upon his release that he had Cardio Magali.

[00:18:57] Speaker 02:
But it wasn't a finding, it was a note from his statement.

[00:19:03] Speaker 02:
There's a few other pieces of evidence.

[00:19:05] Speaker 02:
There's a dental record from 1966 as well that has hard murmur with a question mark next to it.

[00:19:13] Speaker 02:
It's in our brief that in 1994, Mr. Dewberry moved to reopen his claim and presented new and material evidence at that time.

[00:19:25] Speaker 02:
That new and material evidence wasn't

[00:19:27] Speaker 02:
in the record in nineteen sixty-six or sixty-eight that new material evidence led to, and this is explained in our brief, led to ultimately a rating and he was, and basically this case is about moving the effective date of the benefits back to nineteen sixty-six or sixty-eight from nineteen ninety-four, which is when he filed his motion to reopen.

[00:19:53] Speaker 04:
What was the new material evidence in nineteen ninety-four?

[00:19:55] Speaker 02:
It was a doctor who, I believe it wasn't decided by the board until 2003.

[00:20:01] Speaker 02:
So the motion was brought in 94.

[00:20:05] Speaker 02:
At some point between 94 and 2003, Mr. Dewberry produced an opinion from a doctor he was seeing in the late 90s who

[00:20:18] Speaker 02:
said that doctor said that it appears that he has cardiomygaly and that doctor opined that it appeared that that cardiomygaly could have arose from service.

[00:20:31] Speaker 02:
And in that context, the veteran administration, given the benefit of the doubt, in that context, that limited context said, we'll accept your opinion that you've proffered us and give you a rating for this condition.

[00:20:46] Speaker 04:
And that's what the doctor used to conclude that this heart condition was service-connected.

[00:20:56] Speaker 04:
Was it all the same examination reports that are in this record from the late 1960s?

[00:21:01] Speaker 02:
And more.

[00:21:02] Speaker 02:
There was ongoing treatment, so it was more, much more examinations, but importantly, the decision

[00:21:11] Speaker 02:
to give him that rating that started in 1994, that was the effective date.

[00:21:15] Speaker 02:
That decision isn't on appeal here, Your Honor.

[00:21:17] Speaker 02:
That decision that was made in 2003 by the VA to give him that rating was

[00:21:25] Speaker 02:
based on new material evidence and under the rules and regulations that apply that the effective date is the date of the motion to reopen.

[00:21:32] Speaker 04:
You're saying that the doctor's diagnosis in the late 90s was the new material evidence or are you saying that the doctor's diagnosis in the late 90s was based on some additional evidence above and beyond the evidence that existed in the late 1950s?

[00:21:48] Speaker 02:
His opinion was the new and whatever medical test

[00:21:55] Speaker 02:
documentation he relied upon that that doctor, beyond what was in the record, that was all new material evidence.

[00:22:02] Speaker 02:
So the doctor that gave that opinion, that opinion itself was new material evidence, and to the extent that that doctor relied upon tests and medical procedures that happened after, that weren't part of the decision that was made in 1968, that would also be new material evidence.

[00:22:21] Speaker 02:
I will say, Your Honor, this part of the case,

[00:22:24] Speaker 02:
Motion to reopen and the result.

[00:22:26] Speaker 02:
All that's in the record here regarding that case is, I believe, Mr. Duvery's motion and the decision to give him a rating and a few other documents.

[00:22:36] Speaker 02:
The medical records themselves are not in the record.

[00:22:39] Speaker 02:
And Mr. Duvery doesn't even mention this in either one of his briefs that this motion to reopen was filed in 1994 and that it led to this rating.

[00:22:49] Speaker 02:
That's something that we added to our brief to give the court the full picture.

[00:22:54] Speaker 02:
But I think the important point is that the board found in 2003 when it gave him the rating that it was based upon new material evidence and under the rules and regulations that apply, the effective date would be the date that he filed the motion to reopen.

[00:23:12] Speaker 02:
And that decision to give that effective date isn't being appealed here.

[00:23:19] Speaker 02:
So what we're looking at now under the Q claim

[00:23:22] Speaker 02:
is the evidence that existed in 1966 to 68 only and whether under that evidence there was a clear and unmistakable error made at that time by the Veterans Administration when he was released, not to find service connection for this condition.

[00:23:40] Speaker 02:
And based upon the evidence and the record at that time, the VA made the factual finding

[00:23:48] Speaker 04:
I guess the opposing counsel seems to be making some kind of legal argument that the presumption of soundness, because it was improperly applied 40 years ago, 45 years ago, now that places the burden on the VA to prove everything clearly and unmistakably.

[00:24:12] Speaker 04:
Is that a legal argument that you therefore have to address?

[00:24:18] Speaker 04:
Only that he would presume to be fine when he entered service, but he also should be, there should be some strong presumption that he was not fine when he was discharged?

[00:24:35] Speaker 02:
To the extent that Mr. Dewberry is attempting to present legal arguments,

[00:24:42] Speaker 02:
There was no misapplication of a rule of law or of a statute or regulation here.

[00:24:49] Speaker 02:
Indeed, the whole point of the board and the Veterans Court assuming that the resumption of silence should have been applied was to make sure that that analysis was documented so that this court would, if there was an appeal,

[00:25:10] Speaker 02:
would understand that they did that analysis and used the correct standard when they did the analysis.

[00:25:15] Speaker 02:
So when the presumption was down, that's when they assumed that it needed to be applied, they looked at the facts at the time in the record and the determination was that there was no objective or presumptive evidence in the record that he had this condition at the time.

[00:25:31] Speaker 02:
So it was a factual finding based upon the correct legal standard.

[00:25:35] Speaker 02:
So there's no reason for this court

[00:25:37] Speaker 02:
There's no basis for jurisdiction because of the correct rule of law, what was applied.

[00:25:44] Speaker 00:
Can I ask you a process question that has less to do with this case and just because I'm kind of rusty on these cases.

[00:25:50] Speaker 00:
You mentioned a few minutes ago that on the case that he prevailed in, the one that was filed in 94 and whatever,

[00:25:57] Speaker 00:
Would he, he didn't challenge the, he could, could he have challenged the effective date with respect to that case?

[00:26:05] Speaker 00:
I mean he got it back to, got his benefits back to 1994 because that was the date of filing.

[00:26:10] Speaker 00:
Could he have challenged the effective date there and avoided the stricter limitations that are applied in the Q plane or was his only resort to then file a new Q plane to try to get the benefits back to 68?

[00:26:22] Speaker 00:
This is just a neutral process.

[00:26:24] Speaker 00:
Yes, Your Honor.

[00:26:24] Speaker 02:
I believe he could have done that.

[00:26:28] Speaker 02:
And we could speculate as to why he didn't.

[00:26:32] Speaker 02:
But the rule that applies for the effective date is very clear.

[00:26:37] Speaker 02:
And so that may have informed why he chose not to take that approach.

[00:26:42] Speaker 04:
To get all the way back to 68 in that 94 claim, wouldn't he have had to include in addition a Q claim?

[00:26:55] Speaker 02:
That makes sense, your honor, but I mean, I guess, I don't know what other arguments he could have come up with to try to attack the 2003 decision, but Q would be the most, I mean, there, again, it would have to meet all the requirements of Q, and just looking at the decision of the board from 2003 that gave him the service connection,

[00:27:24] Speaker 02:
There's no error from what I can tell them.

[00:27:26] Speaker 02:
But that's not before the court.

[00:27:28] Speaker 02:
I don't want to go too far.

[00:27:29] Speaker 02:
But that decision was based upon new and material evidence that wasn't in the record at the time that we're looking at for this cue claim.

[00:27:39] Speaker 02:
That's the most important thing.

[00:27:41] Speaker 02:
And so the record evidence that existed at the time that we're looking at for the purposes of this cue claim here

[00:27:47] Speaker 02:
that that evidence was weighed by the board and the veteran court agreed with the board's assessment, which is a factual determination.

[00:27:59] Speaker 02:
And just to reiterate, the notion that there could be a legal issue here that inevitably the Holton case, for example, talks about the presumption of soundness does not relieve the veteran of the burden of showing

[00:28:17] Speaker 02:
that the veteran suffered from a disease of injury while in service.

[00:28:21] Speaker 02:
And this goes to the service connection prongs that you need, the three prongs of service connection.

[00:28:27] Speaker 02:
There's one of them is the nexus prong that your current condition is related to the condition that arose during service.

[00:28:37] Speaker 02:
So because the presumption of soundness doesn't address the nexus prong,

[00:28:45] Speaker 02:
The notion that somehow not failing to properly apply the presumption of soundness automatically equals clear and on the stick where it doesn't match up and it requires more analysis.

[00:29:02] Speaker 02:
And so that legal argument has to fail even on a legal basis.

[00:29:06] Speaker 02:
But the court doesn't need to reach that because this case turns on a factual determination.

[00:29:18] Speaker 02:
Thank you.

[00:29:21] Speaker 02:
Thank you.

[00:29:21] Speaker 02:
Thank you.

[00:29:21] Speaker 02:
For the reasons in our brief as argued here, we respectfully request that you dismiss this appeal.

[00:29:36] Speaker ?:
Thank you.

[00:29:36] Speaker 03:
Thank you.

[00:29:36] Speaker 03:
Your Honors, I think the only thing I would say in closing would be that the presumption of soundness created a burden shift.

[00:29:47] Speaker 03:
and the burden was on the government and the government didn't meet its burden.

[00:29:51] Speaker 03:
And my argument has been consistently throughout that the burden of proof itself is a seminal element of the judicial process.

[00:30:00] Speaker 03:
And if one of the parties had the burden of proof and didn't meet their burden of proof, they shouldn't be entitled to prevail.

[00:30:07] Speaker 03:
And in our case, when the burden shifted to the government, it was lifted from our shoulders.

[00:30:15] Speaker 03:
And the government

[00:30:16] Speaker 03:
investigated this case because Mr. Dewberry made his case to the government when he made his initial VA claim in 1968 upon discharge with records from the Army showing the suggestion of the condition and the VA's own investigation showed a suggestion of the condition and instead of outright denying the case based on the facts that existed at the time, the government said

[00:30:45] Speaker 03:
if it's there, it pre-existed.

[00:30:48] Speaker 03:
And when they did that, they invoked the presumption of soundness by saying it pre-existed.

[00:30:53] Speaker 03:
And since we don't have the burden of proof, we shouldn't be denied our claim because the government had the burden of proof and the government has basically acknowledged that it didn't meet that burden of proof.

[00:31:07] Speaker 03:
And my argument has been

[00:31:10] Speaker 03:
the government should be entitled to prevail if it bore the burden and didn't meet its burden.

[00:31:15] Speaker 03:
And that's my argument.

[00:31:16] Speaker 00:
Thank you.

[00:31:17] Speaker 00:
Thank you, Judge.

[00:31:18] Speaker 00:
Thank you.