[00:00:11] Speaker 01:
We have four argued cases today.

[00:00:14] Speaker 01:
First is King v. McDonald.

[00:00:17] Speaker 01:
Is counsel ready?

[00:00:19] Speaker 01:
Yes, sir.

[00:00:19] Speaker 01:
Please proceed.

[00:00:22] Speaker 01:
He just went five and five.

[00:00:24] Speaker 01:
Yes, correct.

[00:00:24] Speaker 01:
Okay.

[00:00:33] Speaker 04:
If it may please the court, I am Carl Kazanczak and I represent the appellant, Mr. King, in this appeal.

[00:00:39] Speaker 04:
In the 1973 rating decision, Mr. King was granted a VA disability benefits for schizophrenia and assigned a 10% rating.

[00:00:49] Speaker 04:
Mr. King did not appeal.

[00:00:51] Speaker 04:
Mr. King later filed a clear and unmistakable error claim based on regional officers failure to consider his clinical psychologist Dr. Rothberg's report in the 1973 rating decision.

[00:01:04] Speaker 04:
The claim was denied.

[00:01:05] Speaker 04:
The claim was then brought to the Board of Veterans Appeals

[00:01:08] Speaker 04:
and the board found clear and unmistakable error, I'm sorry, the board found no clear and unmistakable error.

[00:01:14] Speaker 04:
Mr. King then appeals to the Court of Appeals and Veterans Claims.

[00:01:18] Speaker 04:
The fellow contends that the Court of Veterans Claims erred in deciding there was no basis for a constitutional violation of his right to a fair adjudication of his hearing.

[00:01:29] Speaker 04:
Mr. King contends the Court of Appeals, Veterans Claims erred in confirming the board's decision because his due process right was violated

[00:01:36] Speaker 04:
when the regional office failed to consider Dr. Rothberg's report, which was guessed.

[00:01:41] Speaker 03:
How do you get over the conclusion of the Veterans Court that the fact that the RO did not mention the psychologist's report does not in fact indicate that the RO failed to consider it, particularly way back in time before there was

[00:02:05] Speaker 03:
the kind of requirement that now exists to give a statement of reason.

[00:02:11] Speaker 04:
Right.

[00:02:11] Speaker 04:
Pre-1990, failure to mention medical court was not considered.

[00:02:19] Speaker 03:
Because if the Veterans Court is right about the premise that they have to assume the RO considered it, all of the arguments you build on that disappear, right?

[00:02:33] Speaker 04:
Correct, Your Honor.

[00:02:33] Speaker 04:
But let me say that

[00:02:35] Speaker 04:
I also believe there is room here to look at the decision itself and determine that the RO decision itself and determine that the Dr. Rothberg's report was not reviewed.

[00:02:53] Speaker 04:
When I point to this, let me state this.

[00:02:55] Speaker 04:
What was mentioned in the rating decision was the SMRs, which is the Service Medical Records, the hospital visits,

[00:03:04] Speaker 04:
the veterans doctor's report.

[00:03:09] Speaker 04:
In fact, the only missing piece from what I had seen in the file, certainly of significant evidence, was Dr. Rothberg's report.

[00:03:20] Speaker 04:
This is particularly puzzling in that the regional- Can I just ask you- Sure.

[00:03:24] Speaker 03:
You quickly qualified only to only significant.

[00:03:27] Speaker 04:
Is there something else that- No, not that I'm aware of.

[00:03:33] Speaker 04:
Excuse me, the fact that Dr. Rothberg's report is not mentioned is indicated given this regional officer's decisions, well-documented decision where he details what records he did use.

[00:03:56] Speaker 04:
It seems extremely odd.

[00:03:58] Speaker 04:
that he would not include Dr. Rothberg's report, since it was the medical record that, in our opinion, was strongest on point to the issue at hand, which was the percentage of disability rating, and Dr. Rothberg's report was the only one that mentioned unemployability or employability in any way.

[00:04:20] Speaker 04:
So that's what I believe will be the difference, Your Honor.

[00:04:25] Speaker 04:
The appellant contends, the court of evidence claims,

[00:04:28] Speaker 04:
Mr. King contends the court of appeals for veterans claims erred in confirming the board's decision because the due process right was filed when the regional office failed to consider Dr. Rothberg's report, which was favorable to his claim.

[00:04:39] Speaker 04:
Our contention is supported by the decision in Cushman since the regional office failed to consider Dr. Rothberg's report, which was in the veterans file at the time of the 1973 rating decision and which was not reviewed by the regional office.

[00:04:52] Speaker 04:
1973 rating decision was flawed and based on Cushman,

[00:04:56] Speaker 04:
is due process right to a fair hearing was violated.

[00:05:02] Speaker 04:
Now let me just give a short explanation of Cushman.

[00:05:05] Speaker 04:
Cushman was a TDIU claim, Toll Disability and Digital Unemployability claim, where there were two medical reports, an altered and an unaltered medical report.

[00:05:16] Speaker 04:
The court found that the presentation of the altered document was indeed prejudicial

[00:05:21] Speaker 04:
and the veteran was granted a new hearing for the faculty board de novo.

[00:05:28] Speaker 01:
In the instant case, I'm sorry.

[00:05:30] Speaker 01:
Your real problem here is that whether the RO considered that report or not is a question of fact.

[00:05:42] Speaker 01:
I mean you can point, you can and do point to things that you say, right, way towards

[00:05:50] Speaker 01:
the opposite conclusion, but it's still a factual question.

[00:05:55] Speaker 04:
Yes, but in regards to a due process violation, Your Honor, I believe discussion of the factual is imperative to the claim itself.

[00:06:04] Speaker 04:
And, Port, when you're dealing with due process violations, it's the only exception to be able to review the facts, Your Honor.

[00:06:14] Speaker 03:
What is your best authority for the proposition that

[00:06:19] Speaker 03:
putting the regulations aside that due process, actual constitutional due process requires the adjudicator to consider evidence that is placed before the adjudicator.

[00:06:35] Speaker 04:
Well, Your Honor, I think it's analogous to the case in, I'm sorry, the case in Cushman because

[00:06:47] Speaker 04:
incursion about doctor I'm sorry then it was doctor evidence but that bad word in this content altered but but what it really comes down to is that what you have is a document that was although the document doctor document was included in the record it was still prejudicial to the decision of the actual claim that is no different than

[00:07:14] Speaker 04:
If a document is specifically document favorable to a claimant that is not considered when deciding a claim, it's clearly a matter of procedural due process.

[00:07:32] Speaker 04:
Now, again, our essential part of our claim is the Schiller's Regional Office did not consider Dr. Rothberg's report in the 1973 rating decision.

[00:07:43] Speaker 04:
in a regional office decision prior to 1990 are presumptively valid even in the absence of discussion and reasonable basis of the decision.

[00:07:50] Speaker 04:
And Eddie essentially states that silence in regard to a medical record in a regional office decision prior to 1990 does not show failure to consider that evidence of record.

[00:08:02] Speaker 04:
The case of Natalie and Eddie are distinguishable from the appellants and not withstanding the practice prior to 1990 that the regional office was not required to provide a statement of reasonable basis for its decisions.

[00:08:14] Speaker 04:
The courts have always strictly upheld the requirement of constitutional due process.

[00:08:18] Speaker 04:
Hence the appellate's case, there's a vast difference in the requirement that the regional office not disclose the fact that they considered a particular document in arriving at a decision and the requirement that the regional office, not the private veteran of his due process right.

[00:08:36] Speaker 04:
Natalie did not override the need for constitutional due process and constitutional rights are always paramount.

[00:08:44] Speaker 04:
However, even if silence is not able to show, Dr. Rothberg's report was not considered a careful reading of the decision supplies ample evidence, as I discussed earlier with the answer to your question.

[00:08:58] Speaker 04:
So let me conclude, if the regional office had reviewed and considered Dr. Rothberg's report, it's hard to believe that that regional office would include all those other medical records and only exclude Dr. Rothberg's report.

[00:09:09] Speaker 04:
which was clearly extremely relevant to a determination of disability.

[00:09:15] Speaker 02:
What is your response to the government's reliance on the Guillory case, which they used for the principle that if your constitutional claim, if there's an available remedy, either through statute or regulation, then that's how you should be channeling your claim rather than making a broad-based due process claim.

[00:09:36] Speaker 04:
Well, I would argue that

[00:09:38] Speaker 04:
If there is a due process violation, the remedy is not going to be cured, because the due process violation occurs at the start of this case and the beginning.

[00:09:51] Speaker 04:
So everything else results out of that failure of the due process.

[00:09:56] Speaker 04:
So it is our contention that it needs to be, the standard of proof increases

[00:10:06] Speaker 04:
due to the fact, in other words, in the Q claim, the standard of proof is much higher.

[00:10:13] Speaker 04:
But that all results from that original decision where the due process violation was made.

[00:10:19] Speaker 03:
So it would be different if the remedy were to give a new hearing under exactly the same standard, but when you raise the standard to the almost impossible, that's not an adequate remedy, that's the theory?

[00:10:32] Speaker 02:
What's the standard?

[00:10:34] Speaker 02:
Indebatable or undebatable?

[00:10:36] Speaker 04:
I believe it was undebatable, Your Honor.

[00:10:44] Speaker 01:
Okay.

[00:10:47] Speaker 04:
I... Reserved.

[00:10:50] Speaker 04:
Sorry.

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

[00:10:52] Speaker 04:
You've got five minutes.

[00:11:07] Speaker 00:
We please support pursuant to 38 U.S.

[00:11:10] Speaker 00:
Code 7292C, this court has jurisdiction to interpret constitutional provisions, quote, to the extent presented and necessary to a decision.

[00:11:22] Speaker 00:
In this case, the Veterans Court found that there was no due process violation.

[00:11:28] Speaker 00:
And that result is the result of applying the decisions of this court, the most important being

[00:11:35] Speaker 00:
the decisions of the Natalie versus Principi, Gonzales versus West, and Pierce versus Principi.

[00:11:43] Speaker 00:
What these decisions establish is that a regional office decision is entitled to a presumption of regularity.

[00:11:53] Speaker 00:
It is a final decision.

[00:11:54] Speaker 00:
If it hasn't been appealed through the process, it is presumed to be a regular decision, presumed that all of the evidence has been considered,

[00:12:04] Speaker 00:
in that the proper findings have been made by the regional office.

[00:12:08] Speaker 02:
The presumption can be overcome though, right?

[00:12:11] Speaker 00:
Under the right circumstances.

[00:12:13] Speaker 02:
So what if there was a case where a medical file, a veteran's medical file, had ten pieces of relevant evidence and the VA, the RO, did a very close heavy treatment of nine of those ten pieces of evidence but didn't

[00:12:32] Speaker 02:
mention or discuss the tenth piece of evidence.

[00:12:36] Speaker 02:
And maybe that tenth piece of evidence is the most relevant piece.

[00:12:41] Speaker 02:
And yet, nevertheless, it was never evaluated or discussed.

[00:12:45] Speaker 02:
Do you think that overcomes the presumption?

[00:12:48] Speaker 00:
Well, here, first of all, you have to... The other element is whether or not there was a requirement at the time of the regional office's decision.

[00:12:58] Speaker 00:
That's true.

[00:12:58] Speaker 02:
Maybe there wasn't.

[00:12:59] Speaker 02:
But yet, nevertheless,

[00:13:01] Speaker 02:
at this particular case the RO went perhaps above and beyond and did a full treatment of nine to ten pieces of evidence but was silent on the tenth piece.

[00:13:12] Speaker 02:
And there's no inkling that it consulted that tenth piece.

[00:13:17] Speaker 02:
What would you say under those circumstances?

[00:13:19] Speaker 00:
Okay, I guess in your hypothetical also that tenth piece of evidence is especially significant and would outweigh all the other pieces.

[00:13:27] Speaker 00:
Is that part of

[00:13:28] Speaker 00:
the, uh, the hypothetical.

[00:13:30] Speaker 00:
We could start there.

[00:13:31] Speaker 00:
Okay.

[00:13:32] Speaker 00:
Um, well, first of all, this court's decision in Gonzales versus West says that under the regulation that's applicable, 38 CFR 3.303A, um, there is no requirement that every single piece of evidence be discussed in the decision.

[00:13:50] Speaker 00:
Um, so that would be the applicable law here.

[00:13:55] Speaker 00:
And the fact that it is not discussed,

[00:13:58] Speaker 00:
in the decision doesn't mean that the piece of evidence was not reviewed.

[00:14:03] Speaker 00:
And that's the holding in Gonzales versus West.

[00:14:08] Speaker 00:
Now.

[00:14:09] Speaker 02:
So the presumption wouldn't be overcome in the hypothetical that I get.

[00:14:14] Speaker 02:
Inference would still hold that it was evaluated, it was consulted, it was considered, and yet even though it's not discussed in the opinion like the other nine pieces of evidence,

[00:14:26] Speaker 02:
the presumption holds.

[00:14:29] Speaker 00:
I think what you're pointing out is that this is a very factual question to be assessed on the facts of each individual case and that the board, if it was being decided by the board, the board might come to a different conclusion depending upon the facts of the case.

[00:14:45] Speaker 00:
Here though, if you look at the facts of this case, what you had was two very different opinions from two doctors.

[00:14:53] Speaker 00:
You had the opinion

[00:14:55] Speaker 00:
And this is very, very factual, but if you get into it, you have the opinion from the private physician that Mr. King was psychotic, that this was a real impairment, and that even if he was hospitalized, there would be no improvement.

[00:15:13] Speaker 00:
Then you have, on the other hand, the very, very different opinion from the VA doctor, that there has been, that he's hospitalized.

[00:15:22] Speaker 00:
that there has been improvement during the course of the hospitalization, and that this individual is very perceptive.

[00:15:31] Speaker 00:
That's not the evaluation of someone being psychotic.

[00:15:35] Speaker 00:
So you have two very different opinions, and the decision of the regional office going with the decision of the VA doctor as being the most

[00:15:50] Speaker 00:
worthy of the most credible opinion.

[00:15:54] Speaker 00:
Mr. King did check himself out and go on with his life after that period of hospitalization.

[00:16:01] Speaker 03:
Can you explain on the record here in what way this situation differs from the hypothetical that Judge Chen articulated, which I took it was essentially the point made by Mr. King's counsel as well, that

[00:16:19] Speaker 03:
that everything else in the record was discussed.

[00:16:22] Speaker 03:
This RO official generally gave very thorough treatments, and whatever else one can say about the psychologist's report, it's awfully central to the inquiry.

[00:16:40] Speaker 00:
Here you have, as I said, at the time of this decision, in 1973, there was no requirement that there be a statement of reasons and basis for the decision.

[00:16:50] Speaker 00:
Yet you also have here a decision which cites to what this regional office found to be the most persuasive evidence.

[00:17:03] Speaker 00:
Yes, it's not discussing the private physician's report, but

[00:17:10] Speaker 00:
as this court stated in the decisions I cited, all you have here is the regional office's decision.

[00:17:18] Speaker 00:
And it really doesn't indicate whether it considered the evidence or did not consider the evidence.

[00:17:24] Speaker 00:
And in that situation where all you have is silence, then the presumption is that it was considered.

[00:17:32] Speaker 00:
And that is under this court's decisions.

[00:17:34] Speaker 03:
Did the argument get made below that?

[00:17:39] Speaker 03:
this RO examiner was somehow, I think Mr. King's lawyer said, sort of characteristically thorough.

[00:17:48] Speaker 00:
I don't see that argument.

[00:17:51] Speaker 00:
Well, it looks like a thorough decision, the RO decision.

[00:17:56] Speaker 00:
Now, if they're saying that he's characteristically thorough with respect to other cases, that's certainly not the record.

[00:18:04] Speaker 00:
It does look like a thorough decision.

[00:18:06] Speaker 03:
It's right there.

[00:18:07] Speaker 03:
What about the point that

[00:18:09] Speaker 03:
all the other evidence in the record, putting aside the psychologist's report, was in fact discussed.

[00:18:18] Speaker 03:
Is that an argument made to the Veterans Court as to why this case falls into the exception where the presumption of consideration wouldn't apply?

[00:18:31] Speaker 00:
I think that that fairly is encompassed by the arguments below.

[00:18:35] Speaker 00:
But what the Veterans Court is pointing out

[00:18:37] Speaker 00:
is that the fact that something is not mentioned, simply the fact that something is not mentioned, under the governing law, citing this court's decisions in Pierce versus Principi, Gonzalez versus West, and Natalie versus Principi, just the fact that there is silence doesn't override the presumption of regularity, especially in view of the fact that there was no requirement at that time.

[00:19:04] Speaker 00:
that there be a statement of reasons and basis for the decision.

[00:19:09] Speaker 01:
Isn't really what you're saying that it may be a fact that the RO simply chose to build it in its decision rather than discuss anything adverse to the position it took, but that doesn't mean it didn't consider it.

[00:19:33] Speaker 00:
Yes, that's correct.

[00:19:34] Speaker 00:
And here the RO is detailing what was most persuasive to him in making the decision.

[00:19:45] Speaker 01:
And then you follow that in effect by saying, well, since it's a question of fact, you don't have jurisdiction to review it.

[00:19:55] Speaker 00:
That's correct also, but here we have... So are all opinions a question of fact?

[00:20:00] Speaker 01:
Excuse me?

[00:20:01] Speaker 01:
Are all opinions a question of fact?

[00:20:03] Speaker 01:
That seems what the government wants to be able to say.

[00:20:11] Speaker 02:
It seems like they say it every time in one of these cases.

[00:20:16] Speaker 00:
Well, here, whether or not a regional office considered a particular piece of evidence would be clearly a question of fact.

[00:20:25] Speaker 00:
But as we pointed out, the presumption of regularity applied and was properly applied.

[00:20:32] Speaker 00:
What we're contending is that there was no error in applying the presumption of regularity by the Veterans Court.

[00:20:40] Speaker 03:
Can I ask you on the legal side of things, which

[00:20:44] Speaker 03:
understand that if one doesn't cross the threshold of determining that just maybe the RO failed to consider one wouldn't get to the questions but assume one gets to the question.

[00:20:56] Speaker 03:
What is your view about whether there is a due process violation when the decision maker simply does not consider some evidence and the second question of some legal interest is why is it that

[00:21:13] Speaker 03:
that the remedy to cure that, if it's indeed a problem, satisfies due process when the remedy has this extremely high burden of showing bottom line result error.

[00:21:28] Speaker 00:
Well, what we would point out, first of all, is what we're relying on is this Court's decision in Guillory, which upholds that the statutes and regulations provide an adequate remedy for the correction, for the curing of errors.

[00:21:42] Speaker 00:
also for this type of era.

[00:21:44] Speaker 00:
And we would also point out that in 1973, at the time of the regional office decision,

[00:21:51] Speaker 00:
Mr. King had a right to direct review under 38 U.S.

[00:21:55] Speaker 00:
Code 7105, so long as he filed a notice of disagreement within one year.

[00:22:01] Speaker 00:
So he had that right of direct review.

[00:22:04] Speaker 03:
So the CUE remedy is not the only remedy that was available to him?

[00:22:09] Speaker 00:
That's correct.

[00:22:11] Speaker 00:
And in addition, he has a right to file a motion to correct clear and unmistakable errors.

[00:22:18] Speaker 00:
And that motion could be filed at any time.

[00:22:21] Speaker 00:
There's no statute of limitations that applies to that motion.

[00:22:26] Speaker 00:
And that was finally filed by Mr. King in 2006.

[00:22:32] Speaker 00:
What we would also point it out is that the error here is the type of error that is corrected by either direct review or collateral review to a clear, non-mistakable error motion.

[00:22:46] Speaker 00:
That distinguishes this case from the case of Cushman where essentially what you had was a fraud on the court because you had an altered piece of evidence that was very significant and was most relied upon by the Board of Veterans Appeals in making a decision adverse to the veteran.

[00:23:08] Speaker 00:
In that case, the only way to cure the error was to exclude the fraudulent evidence.

[00:23:15] Speaker 00:
In this case, it's very different.

[00:23:16] Speaker 00:
It's the type of error that can be corrected through either direct review or a clear and unmistakable error motion.

[00:23:26] Speaker 02:
So just getting back to what I think was Judge Torano's first question.

[00:23:31] Speaker 02:
Assuming for the moment, there was a failure to consider a piece of evidence in the record, was that a due process violation?

[00:23:39] Speaker 00:
In our view, it is not because there is a statutory and regulatory mechanism in place to correct it.

[00:23:48] Speaker 00:
If the failure to consider a piece of evidence in a case was in itself a due process violation, then that would be a due process violation every time a decision maker happened to overlook a piece of evidence.

[00:24:06] Speaker 00:
in any trial, in any administrative proceeding.

[00:24:11] Speaker 00:
And we don't think that that's the case.

[00:24:15] Speaker 00:
Accordingly, if the court has no further questions, we would seek affirmance of the court's decision.

[00:24:21] Speaker 01:
Thank you, counsel.

[00:24:33] Speaker 04:
I surrender my remaining time unless you have questions you would like to ask me.

[00:24:37] Speaker 04:
Thank you counsel.

[00:24:40] Speaker 04:
The matter will stand submitted.