[00:00:01] Speaker 04: First case this afternoon is 157002, Enos v. McDonnell. [00:00:07] Speaker 04: Ms. [00:00:07] Speaker 04: Booth, welcome. [00:00:09] Speaker 02: Thank you, Your Honor. [00:00:10] Speaker 02: Good afternoon, and if it please the Court, my name is Sandra Booth. [00:00:13] Speaker 02: I'm appearing on behalf of Shirley Enos, who is the widow of the veteran Richard Enos. [00:00:18] Speaker 02: There are two issues before the Court for consideration. [00:00:23] Speaker 02: The first is, are the Secretary's findings of fact, as published in the M21 manual, [00:00:30] Speaker 02: the type of evidence that the agency must consider in making a determination on a claim. [00:00:36] Speaker 02: Number two is if it is the type of evidence that must be considered, did the Veterans Court misinterpret the 5107A allocation? [00:00:48] Speaker 01: Let me ask you a question. [00:00:48] Speaker 02: Certainly. [00:00:49] Speaker 01: At several points in your brief, you argue that the manual contains positive binding evidence that the board failed to consider, right? [00:01:01] Speaker 02: if I said it was binding, it is evidence, Your Honor. [00:01:04] Speaker 02: It is not a presumption, does not create a presumption of service connection. [00:01:09] Speaker 01: So you agree then with your concession at page 15 of your opening brief that the Secretary's what you call admissions are not binding, you say? [00:01:28] Speaker 01: Ms. [00:01:28] Speaker 01: Zenos does not contend that the Secretary's admissions as published in the manual are binding. [00:01:35] Speaker 01: You don't contend they're binding. [00:01:36] Speaker 02: Well, we contend they must be considered as evidence just as any other evidence would be, for example, if a claimant submits. [00:01:45] Speaker 01: If they don't have evidentiary force, if they're not binding evidence, then how is it you're not conceding your case? [00:01:54] Speaker 02: Well, I think that we're [00:01:58] Speaker 02: They have evidentiary force. [00:02:00] Speaker 02: They are not binding in terms. [00:02:02] Speaker 02: They do not create a presumption of service connection. [00:02:05] Speaker 02: The secretary is always free to cite the other evidence to weigh against that. [00:02:11] Speaker 01: Okay, then let me cut to what I think is the core of this thing. [00:02:13] Speaker 01: Okay. [00:02:15] Speaker 01: Your appeal largely rests on whether the manual contains evidence that the board failed to consider. [00:02:22] Speaker 01: It's fair to say that, right? [00:02:24] Speaker 01: Yes. [00:02:25] Speaker 01: Okay. [00:02:26] Speaker 01: In relevant part, the manual says [00:02:28] Speaker 01: Inhalation of asbestos fibers can produce, among other diseases, fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis. [00:02:42] Speaker 01: Let's assume for a moment that it is binding evidence. [00:02:47] Speaker 01: You appear to equate the term can with does. [00:02:55] Speaker 01: Does contain, not can contain. [00:02:57] Speaker 01: Don't they have separate and distinct meanings? [00:03:01] Speaker 02: I think they do, Your Honor, which is why it does not create a presumption. [00:03:05] Speaker 02: The Secretary's manual is not suggesting that it is the only cause. [00:03:10] Speaker 02: That's right. [00:03:10] Speaker 01: But rather that the... And not even that it's the most likely cause. [00:03:16] Speaker 02: It does not indicate one way or the other that whether it is or is not the most likely cause. [00:03:21] Speaker 02: What I think the seminal point is that there is no evidence in the manual to support that this veteran had a different cause. [00:03:30] Speaker 02: So we have proof of a causation. [00:03:33] Speaker 01: Well, there's no evidence in the manual that there's evidence, for example, he smoked for 40 years. [00:03:40] Speaker 02: But there is no medical evidence, Your Honor, that smoking, granted, causes a whole variety of lung diseases. [00:03:46] Speaker 02: But there's no evidence that interstitial fibrosis is one of them. [00:03:50] Speaker 03: Also, I would indicate that the record... But counsel, what you're doing right now is debating with my colleague the weight of the evidence. [00:03:59] Speaker 03: And we, as an appellate court, don't get to do that, especially in veterans cases. [00:04:04] Speaker 03: So, even if I were sympathetic to the idea that a veteran who served in the military 40 years ago, then smoked for 40 years, [00:04:16] Speaker 03: Then 40 years after service came down with a lung condition. [00:04:20] Speaker 03: If I was sympathetic to the idea that that could have been caused by his service, it would still [00:04:27] Speaker 03: be something that would be outside the realm of my reach, wouldn't it? [00:04:31] Speaker 02: No, I don't believe so, Your Honor, because the fact remains there is no evidence that smoking caused this veteran's interstitial fibrosis. [00:04:39] Speaker 03: But you're arguing over the weight of the evidence and what the facts were. [00:04:44] Speaker 03: And the only thing we get to do in the veteran's cases as an appellate court is interpret statutes and regulations. [00:04:52] Speaker 03: And so I would like to hear how you link that argument up with the interpretation of something because even if all the evidence is on your side and none of it is actually in support of the decision, that's still application of law to fact and therefore outside my reach as an appellate court. [00:05:08] Speaker 02: Well, the question is there is a total absence of evidence to support some other cause. [00:05:15] Speaker 02: That's what then addresses... [00:05:20] Speaker 04: a point that we have jurisdiction over. [00:05:22] Speaker 04: That's not the way this ought to work, right? [00:05:25] Speaker 04: It's not the government's burden to demonstrate that there's an alternative theory upon which we conclude that the veteran had this medical condition. [00:05:34] Speaker 04: It's the veteran's burden to prove causation, not the government's burden to prove alternative basis, right? [00:05:42] Speaker 02: I would not necessarily agree with that, Your Honor. [00:05:45] Speaker 02: I think that the claimant under 5107A has the burden of submitting, presenting, and supporting a claim for benefits. [00:05:53] Speaker 02: The only, it's undisputed that she met every marker except for this dispute about nexus, about causation. [00:06:00] Speaker 04: Well, that's a pretty big marker to not miss. [00:06:02] Speaker 02: It is. [00:06:03] Speaker 04: That's what litigation is always about, about the nexus. [00:06:05] Speaker 02: Well, in our view, though, she did not miss it because if the Secretary's manual [00:06:11] Speaker 02: his admissions in the manual of a cause and effect between inhalation of asbestos fibers, which is conceded, and the veteran's interstitial fibrosis, no matter how many years later, that's what the secretary has found, that is a cause. [00:06:28] Speaker 02: There is no, at that point under the court's interpretation of the allocation of the burden under 5107, [00:06:38] Speaker 02: Mrs. Enos met her burden of going forward. [00:06:42] Speaker 04: You're saying what is the nature of the burdens? [00:06:45] Speaker 04: The veteran has to come and you're saying that the veteran's burden is to just so say to dwell it read from the manual. [00:06:51] Speaker 04: This may be the cause and then the burden shifts to the government to prove that they were alternative bases for the reason this happened? [00:07:00] Speaker 02: The manual establishes that it can be a cause, that there is medical science that is to the secretary's satisfaction. [00:07:08] Speaker 02: between inhalation of asbestos fibers and a subsequent interstitial fibrosis and a host of other problems that the secretary lists in the manual. [00:07:18] Speaker 02: The veteran had those two cause effect. [00:07:24] Speaker 01: Supposing the manual also says, and smoking can be a cause. [00:07:27] Speaker 02: I think that would cause a big problem for the veteran. [00:07:30] Speaker 02: However, as the Veterans Court has construed the benefit of the doubt under the Mitleider case, which is cited in both the principal and reply briefs, if there are two causes for a disability, one service-connected, one not service-connected, the VA must attribute all of the residuals, all of the disability [00:07:52] Speaker 02: to the service-connected cause unless it is able to show through the medical evidence how one allocates the damage that is due to each independent cause. [00:08:04] Speaker 02: So even if it's said that smoking also can cause interstitial fibrosis, which it doesn't. [00:08:11] Speaker 04: Well, I keep on troubled by the word you used, it can cause. [00:08:14] Speaker 04: I mean, that's not enough basis to establish causation. [00:08:18] Speaker 04: You can have as many manuals or medical [00:08:20] Speaker 04: journals saying that this may cause this, this could or can cause this. [00:08:27] Speaker 04: That's not sufficient to meet your burden in the first instance, is it? [00:08:30] Speaker 02: I think it is. [00:08:31] Speaker 02: It's sufficient to meet the burden of going forward under 5107A. [00:08:35] Speaker 02: It left wide open, of course, for the Secretary to point to evidence, develop evidence, which showed that there was some other causation or that there is some particular medical issue [00:08:47] Speaker 02: in this veteran's file, a medical opinion that would show their particular clinical factors that would rule out his fibrosis as being asbestos-based. [00:09:01] Speaker 02: I don't know if that's true, but I know that was never developed. [00:09:04] Speaker 02: That's not in the file. [00:09:06] Speaker 02: That was the secretary's burden under 5107B, his burden of non-persuasion, of shifting [00:09:13] Speaker 02: where the burden got shifted to the secretary under Ortiz for the secretary to prove that the veteran was not entitled to benefits. [00:09:25] Speaker 02: He could have done that with medical evidence, assuming that a medical opinion would be forthcoming. [00:09:34] Speaker 02: That's one thing the secretary could have done. [00:09:36] Speaker 02: He chose not to. [00:09:37] Speaker 02: He denied the case while the veteran was still alive without ever requesting that medical evidence, without identifying any evidence that would take this case outside of the causation that the secretary himself recognizes. [00:09:51] Speaker 02: And, of course, then when the secretary or the veteran died within that one year afterwards, the record closed because of the peculiarities of this case arising under the old law. [00:10:03] Speaker 02: So we're left only with the record that we have. [00:10:07] Speaker 04: Why don't we hear from the government? [00:10:08] Speaker 04: You're reaching your rebuttal time. [00:10:10] Speaker 04: Thank you, Your Honor. [00:10:23] Speaker 00: May it please the Court? [00:10:25] Speaker 00: What Mrs. Enos is essentially arguing here, although she disclaims that she's asking for a presumption, is in effect a presumption. [00:10:33] Speaker 00: What she's arguing is that in the vacuum where there is no probative evidence establishing a nexus between Mr. Enos's interstitial pulmonary fibrosis and his asbestos exposure, that the statement in the manual indicating that there can be a connection is sufficient to invoke the benefit of the doubt rule and for nexus to be established. [00:10:54] Speaker 04: Why is that not right? [00:10:56] Speaker 00: Because the manual only states that interstitial pulmonary fibrosis, along with a host of other illnesses, can be caused by asbestos exposure. [00:11:06] Speaker 00: It then goes on to instruct the ratings officials that they need to determine whether there is, in fact, based on the medical evidence, a connection between the veteran's illness, in this case interstitial pulmonary fibrosis, and his or her asbestos exposure. [00:11:21] Speaker 04: What more did she need, then, in terms of the evidence? [00:11:23] Speaker 00: She needed medical evidence [00:11:26] Speaker 00: of Mr. Enos's pulmonary fibrosis being linked to his asbestos. [00:11:32] Speaker 03: I don't understand. [00:11:33] Speaker 03: When you look at somebody's lungs, the lungs don't scream, I was caused by asbestos. [00:11:37] Speaker 03: So how are you supposed to determine what the cause was? [00:11:41] Speaker 03: You have a veteran's manual that says it can be caused by exposure to asbestos. [00:11:46] Speaker 03: It is established by the board opinion that he was a machinist who was reasonably believed to be exposed to asbestos. [00:11:54] Speaker 03: So that's a fact in the record. [00:11:55] Speaker 03: So he was exposed to asbestos during his military service. [00:11:58] Speaker 03: Then he developed an illness, which the manual expressly says can be caused by asbestos exposure. [00:12:07] Speaker 03: I don't know what more you want. [00:12:08] Speaker 03: How is he supposed to prove it, in fact, was caused by that? [00:12:12] Speaker 03: How? [00:12:13] Speaker 03: What more is necessary? [00:12:16] Speaker 00: What's necessary is medical evidence that Mr. Enos's specific illness was in fact caused by asbestos. [00:12:22] Speaker 03: The fact that they... What does that mean? [00:12:24] Speaker 03: How is the doctor supposed to figure that out? [00:12:26] Speaker 03: He didn't cut him open and say, oh, yep, definitely asbestos. [00:12:29] Speaker 03: How? [00:12:29] Speaker 04: There's no medical certainty required. [00:12:32] Speaker 04: I thought the standard was something like more likely than not or something. [00:12:36] Speaker 04: It's not medical. [00:12:37] Speaker 00: Yes. [00:12:37] Speaker 00: What I meant to say is there needs to be a medical opinion on that question. [00:12:41] Speaker 03: No, why a medical opinion? [00:12:44] Speaker 03: I believe our cases say that lay opinions and other evidence can suffice to establish this. [00:12:49] Speaker 03: Are you telling me our cases require a medical opinion and absent a medical opinion, a veteran can never prevail? [00:12:56] Speaker 00: Under Jandro for illnesses such as a pulmonary illness, Jandro calls out cancer as a specific one, lay opinions are not sufficient. [00:13:04] Speaker 04: This isn't a lay opinion. [00:13:06] Speaker 04: This manual is based on scientific evidence, right? [00:13:11] Speaker 04: I don't consider the manual lay evidence, do you? [00:13:14] Speaker 00: I don't. [00:13:14] Speaker 00: I was simply addressing the question of whether lay evidence is sufficient. [00:13:18] Speaker 00: The manual itself is based on scientific evidence, but it does not opine or offer a nexus opinion in Mr. Enos's case. [00:13:25] Speaker 00: It simply says that it can be related, and then it instructs that you need to get a specific determination whether it's more likely than not that the illness for the veteran was caused by the asbestos exposure. [00:13:37] Speaker 00: It's particularly important in asbestos exposure cases because the latency period [00:13:41] Speaker 00: is so long and there are other intervening factors over the decades. [00:13:45] Speaker 00: The existence of the manual in this instance is evidence enough to get over the fact that in 38 CFR 3.303 there is no specific provision for disability compensation from an exposure illness. [00:14:00] Speaker 00: And so the manual provides instructions on how to address cases where there [00:14:07] Speaker 00: is no symptomatology and there was no in-service occurrence of the illness. [00:14:12] Speaker 03: I don't understand. [00:14:13] Speaker 03: If I break my leg and I go to the doctor, how is he supposed to opine on how I broke my leg? [00:14:22] Speaker 03: That's what you're asking for. [00:14:24] Speaker 03: You want this doctor to opine on how this man developed this lung condition. [00:14:29] Speaker 03: How is the doctor supposed to offer any first-hand testimony as to the cause of his lung condition as opposed to the symptoms, the state of that sort of thing? [00:14:40] Speaker 03: How is the doctor supposed to do that? [00:14:42] Speaker 03: Why is that the missing piece? [00:14:44] Speaker 03: Why if some random doctor came in and said, well, the manual says this and therefore, I think, sounds good to me. [00:14:52] Speaker 03: I mean, I don't understand the standard that you want. [00:14:55] Speaker 00: Well, I mean, the standard needs to be there is a pulmonologist have the ability to look at a CT scan. [00:15:01] Speaker 00: And that's what happened here. [00:15:02] Speaker 00: They looked at the CT scan to diagnose the illness where there are asbestos cause illnesses, I would presume. [00:15:09] Speaker 04: What did they say? [00:15:10] Speaker 04: I mean, what did they say was the cause? [00:15:12] Speaker 00: They did not, because they were not asked yet. [00:15:14] Speaker 00: There was never a request from the VA for a specific examination to answer the Nexus question. [00:15:22] Speaker 00: And that would have been a necessary step had Mr. Enos not died during his claim. [00:15:30] Speaker 04: So he's just out of luck, because you're telling us there's no way he could possibly have proven the case after the fact. [00:15:38] Speaker 00: Yes, because the application of the statute that provides the [00:15:41] Speaker 00: accrued benefit claim to Mrs. Enos requires that only evidence in the file of the VA at the time of the claimant's death can be considered. [00:15:50] Speaker 01: So you can't, for instance, do a necropsy or an autopsy [00:15:54] Speaker 00: No. [00:15:55] Speaker 00: Now, you could, in theory, do that for a DIC claim, which would be a claim going forward. [00:16:01] Speaker 00: But under the statute that provides for accrued benefits, the evidence cuts off as of the day of death. [00:16:06] Speaker 03: Is my admittedly simplistic idea of medicine incorrect? [00:16:13] Speaker 03: I mean, aren't you saying the only thing missing here is the doctor saying this lung condition was caused by asbestos? [00:16:19] Speaker 03: And how could the doctor possibly know that? [00:16:24] Speaker 03: I don't know much about this area of medicine, but when you're looking at lung cancer or cysts or whatever on the lungs, do they really, by looking at them, tell you who caused them or what caused them, what particular form of exposure? [00:16:38] Speaker 03: I don't see that in the literature. [00:16:40] Speaker 03: So why is the doctor's random opinion about what caused it [00:16:46] Speaker 03: Why is that so important? [00:16:47] Speaker 03: It's like asking him what caused me to break my leg. [00:16:49] Speaker 03: It just doesn't make sense to me. [00:16:51] Speaker 00: Well, I mean, I'm not a pulmonologist, but my understanding of the medical reports here is that one can look at... Are they looking for encapsulations of asbestos fibers? [00:17:02] Speaker 00: I think they are. [00:17:03] Speaker 00: They're looking for pleural plaques. [00:17:05] Speaker 00: I did a little bit of research on asbestosis. [00:17:08] Speaker 00: There is indications of [00:17:12] Speaker 00: interstitial pulmonary fibrosis caused by inhalation. [00:17:16] Speaker 00: It is something that you can see. [00:17:17] Speaker 00: Mr. Enos never actually was seen by a pulmonologist, so there's no pulmonologist report in his file. [00:17:25] Speaker 03: But I do believe that a pulmonologist could opine as to cause... Okay, so this isn't like my broken leg example where it could have been caused by any number of different things. [00:17:35] Speaker 03: You're telling me that medical science in this case is such that if he had had the right exam, it could have told us [00:17:42] Speaker 03: with some degree of certainty whether or not it was asbestos caused or not. [00:17:47] Speaker 00: With at least the certainty required under the disability benefits that it was more likely than not that his asbestos exposure is linked to his interstitial pulmonary fibrosis. [00:17:56] Speaker 03: But because he died of this very disease which may have been caused by his military service, [00:18:03] Speaker 03: His widow doesn't get anything because that test can't be performed after death. [00:18:07] Speaker 00: Well, his cause of death was not actually interstitial pulmonary fibrosis. [00:18:10] Speaker 00: It was listed in the medical reports as other illnesses caused lung illnesses. [00:18:15] Speaker 00: But under the statute, he would be in fact out of luck. [00:18:18] Speaker 00: for the accrued benefits, but that doesn't mean that his widow is out of luck going forward for all benefits because there is a DIC claim where she can attempt to get additional evidence showing that the cause of death was linked to the in-service hit. [00:18:32] Speaker 00: That's not an issue in this case. [00:18:33] Speaker 00: It is not. [00:18:34] Speaker 00: No, Your Honor, because the evidence... Let me ask you this. [00:18:37] Speaker 01: You, along with everyone else in the Department of Justice, seems to argue that we lack jurisdiction every time [00:18:47] Speaker 01: there's any argument that it's a question of fact. [00:18:54] Speaker 01: And yet, we've held that this Court retains, I'm quoting, jurisdiction to review the Veterans Court legal determination with respect to the types of evidence which may support a claim for benefits. [00:19:10] Speaker 01: There are at least four presidential opinions reaffirming that. [00:19:16] Speaker 01: I don't need to cite them to you. [00:19:21] Speaker 01: Questions about the manual's contents undoubtedly raise issues with respect to the type of evidence, which can support a claim for benefits, don't they? [00:19:31] Speaker 00: Yes. [00:19:31] Speaker 01: So why don't we have jurisdiction to determine that question? [00:19:34] Speaker 00: If the Veterans Court here had actually answered that question and had addressed whether the manual was of the type of evidence that should or could be considered, that would be a question that this Court... Or if they should have answered that question. [00:19:48] Speaker 00: If they should have, but they assumed that it was considered as evidence. [00:19:51] Speaker 00: The Board considered the provisions of the manual. [00:19:54] Speaker 00: They did not exclude consideration [00:19:56] Speaker 03: When you say they assume the board considered it, didn't the board expressly reference the manual on page 38 of the Joint Appendix and 39 and 40? [00:20:04] Speaker 00: They do. [00:20:05] Speaker 00: What I mean is they didn't say, well, this isn't evidence that could possibly be probative. [00:20:11] Speaker 00: They simply said, this was considered by the board explicitly. [00:20:14] Speaker 00: We find no error in their consideration. [00:20:17] Speaker 00: What Mrs. Enos and the reason jurisdiction was raised in this case and why it's different is that first she alleges that it was not considered and plainly it was as Judge Moore decided. [00:20:27] Speaker 00: But then she argues that it should have been considered differently. [00:20:30] Speaker 00: She wants it to be considered a party admission. [00:20:34] Speaker 00: There's multiple problems with that. [00:20:35] Speaker 00: The first is that this court doesn't have jurisdiction over the question of how that evidence should be treated. [00:20:41] Speaker 03: If we were to agree with you that the manual was in fact considered by the board, [00:20:46] Speaker 03: Would this appeal devolve into an interpretation or weighing of the evidence and in particular what the word can produce fibrosis means? [00:20:55] Speaker 03: An interpretation of the evidence and what it means when it says can as opposed to does or something else? [00:21:01] Speaker 00: Yes, I believe it would. [00:21:03] Speaker 00: I think it is really a question of what weight was given to the manual and the consideration of Mr. Enos's claim. [00:21:11] Speaker 00: She's arguing now that she thinks it should have been given greater weight because she believes it's a party admission. [00:21:18] Speaker 00: The concept of party admission doesn't even really go to the weight. [00:21:21] Speaker 00: So not only does this Court not have jurisdiction, but party admission is just the evidentiary question as to whether it can be admitted. [00:21:27] Speaker 00: It does not mean, even if it was considered a party admission, [00:21:30] Speaker 00: that it should be given greater weight. [00:21:32] Speaker 03: The government's not arguing it's not evidence that can or should be considered by the board, are you? [00:21:37] Speaker 00: We do not in our brief, though I don't see how this could be probative evidence in an individual claimant's case of the Nexus question. [00:21:48] Speaker 00: Because it's speculated at best. [00:21:50] Speaker 00: It could be if the question was whether it was possible that it was causing it. [00:21:53] Speaker 00: True, and if the ruling had been, it's [00:21:55] Speaker 00: You know, the ratings officials, it's not possible that your IPF is caused by this. [00:22:00] Speaker 00: Agreed. [00:22:00] Speaker 00: But where someone has it and there's asbestos exposure conceded, the question of whether their illness is caused by asbestos exposure can't be answered by a can-be-caused statement in the manual. [00:22:11] Speaker 00: It is at best speculative, which cannot support a claim under this court's holding to Sagan. [00:22:16] Speaker 04: At what point does the burden shift to the government? [00:22:19] Speaker 04: How much does the appellant here have to prove up in order for the burden to shift? [00:22:23] Speaker 00: It's the preponderance of the evidence, so I guess it's been analogized to the 51%, but it needs to be demonstrated that it's more likely than not, or at least the evidence is put into equipoise, where there is an approximate balance between the positive and the negative evidence. [00:22:37] Speaker 00: In that case, the benefit of the doubt rule applies, and the tie goes to the claimant in that case. [00:22:42] Speaker 03: So the government in this case didn't put really proper any evidence to the contrary, isn't that right? [00:22:49] Speaker 03: That's right. [00:22:49] Speaker 03: So your whole case is that she didn't meet her burden of putting on the 51%. [00:22:53] Speaker 00: Right, and she conceives that there is no probative medical evidence aside from her relying on the manual, that there's no any other probative evidence on the Nexus question. [00:23:06] Speaker 00: So she's solely relying on the statement in the manual. [00:23:11] Speaker 00: Melissa Cortez, any further questions? [00:23:12] Speaker 00: Thank you. [00:23:19] Speaker 02: Your Honor, I want to first address something that's absolutely essential to this case, and that is an error in counsel's statement that the veteran must show that it is to a preponderance that he is entitled to service connection, must establish nexus to a preponderance. [00:23:35] Speaker 02: That's absolutely not true. [00:23:38] Speaker 02: The veteran [00:23:39] Speaker 02: must submit a claim for and support it, but it is the secretary who must disprove it by a preponderance. [00:23:48] Speaker 02: If the evidence is in equipoise or if there is no evidence contra to the veterans own evidence, then the benefit of the doubt under 5107B goes to the veteran. [00:23:59] Speaker 02: So it is not true. [00:24:01] Speaker 02: It's 50%, not 51%. [00:24:02] Speaker 02: Correct. [00:24:03] Speaker 02: Correct. [00:24:04] Speaker 02: In equipoise, when it's too close to call, this court, in another decision, compared it to the rule in baseball about the tie goes to the runner. [00:24:15] Speaker 02: If it's too close to call, the tie goes to the runner. [00:24:18] Speaker 02: And in this case, the tie goes to the veteran if it's too close to call. [00:24:22] Speaker 04: Who makes the decision? [00:24:23] Speaker 04: I mean, you say this case has legs in your view because the manual puts this case in equipoise. [00:24:31] Speaker 04: Who decides that? [00:24:32] Speaker 04: I mean, doesn't the Board and the Court of Veterans Claims get to decide? [00:24:35] Speaker 04: They get to weigh the evidence and say, was this 50 percent or is it far less than that when we're dealing just with the manual? [00:24:43] Speaker 02: Well, I think those issues, I've got several responses to that issue, Your Honor. [00:24:49] Speaker 02: Number one, the board did not consider the manual as evidence. [00:24:54] Speaker 02: The reference at page 38, it refers to the manual provisions in its recitation of what the law is. [00:25:03] Speaker 02: On page 39, it lists the medical evidence, but it does not discuss the board's findings as medical evidence. [00:25:10] Speaker 02: is not included in that list what it has identified as evidence. [00:25:14] Speaker 02: And at page 41, it concludes that the evidence did not show that the veteran's disability as likely as not was due to asbestos exposure, but it explains that conclusion by stating there is no competent medical opinion and that the veteran's own life statements were not competent. [00:25:32] Speaker 02: Both those are correct. [00:25:33] Speaker 02: There's nothing indicating in there that it gave any consideration to the secretary's own findings. [00:25:40] Speaker 02: And I would submit that it must, because under 714OC, which is the reasons are Basie's statute generally, but under 7104C, Congress instructs that the board must comply with instructions of the secretary. [00:25:57] Speaker 02: And I would submit that those manual provisions, which are specifically made to give guidance to adjudicators and promote consistency, are instructions. [00:26:10] Speaker 02: Also, those are my primary concerns about the Secretary's argument. [00:26:32] Speaker 02: Your Honor, the benefit of the doubt is [00:26:37] Speaker 02: a concept that is not just necessarily a foggy kind of amorphous feel-good concept. [00:26:45] Speaker 02: If the claimant has supported his claim or her claim, and in this case everything's been supported, and if we assume, if I may assume for a moment that the manual is evidence, then [00:27:00] Speaker 02: The final element of causation has also been supported. [00:27:04] Speaker 02: 5107B, nor A for that fact, requires a claimant to anticipate that there might be other possible causes to their disability and disprove those. [00:27:16] Speaker 02: It simply isn't a part of the law, and yet that's what the Department of Justice would ask that you hold. [00:27:23] Speaker 02: Once the claimant has supported a theory, then under 5107B, [00:27:30] Speaker 02: the burden of non persuasion has shifted to the secretary and that's when the secretary would have been free, had he chosen to develop evidence that, again assuming it exists, to develop evidence that shows that it is more likely than not that Mr. Enos's interstitial fibrosis was caused by some non-service connected cause. [00:27:52] Speaker 02: There is no such evidence in the file. [00:27:55] Speaker 02: So when we talk about putting the evidence in equipoise [00:28:00] Speaker 02: The scales kind of go like that in this case because there is no contrary evidence. [00:28:05] Speaker 02: Nothing that rebuffs or contradicts the secretary's own findings about causal connection. [00:28:11] Speaker 02: There is no evidence of what some other cause might be. [00:28:14] Speaker 02: The secretary has never even claimed that there was another cause until this argument. [00:28:21] Speaker 02: And I see my time is up. [00:28:24] Speaker 04: Thank you, Your Honor. [00:28:24] Speaker 04: We thank both counsel and the cases submitted.