[00:00:00] Speaker 02:
Before we begin our cases this morning, I just want to, on behalf of Judge Toronto, myself and the entire court, welcome Judge Fogel, who is our visiting judge this morning and for a couple sessions this week.

[00:00:11] Speaker 02:
And we just can't say how pleased we are to have him join us.

[00:00:16] Speaker 02:
Many of you know him for his extensive work in tap law, and we're grateful for his participation today.

[00:00:24] Speaker 02:
First case this morning is 147049, Solberg v. McDonald.

[00:00:30] Speaker 02:
Ms.

[00:00:30] Speaker 02:
Fioli, whenever you're ready.

[00:00:32] Speaker 01:
Good morning.

[00:00:35] Speaker 01:
I think that we can start out with saying that the Secretary concedes jurisdiction in this case, at least with regard to PTSD.

[00:00:42] Speaker 01:
This case involves a misinterpretation by the DBA of the regulation 3.312C, which relates to a contributed cause to a veteran's death.

[00:00:58] Speaker 01:
is appropriate all the way down to the BVA in this case, simply because the error was committed at the BVA and possibly earlier at the RO.

[00:01:07] Speaker 04:
What does the BVA have to do with the interpretation of the regulation?

[00:01:13] Speaker 04:
The board misinterpreted the regulation in the first instance.

[00:01:17] Speaker 04:
This is a legal matter, otherwise we wouldn't have that jurisdiction.

[00:01:20] Speaker 04:
So why would we demand to the board for that?

[00:01:25] Speaker 01:
because the error was compounded at the board and Mrs. Sahlberg should be entitled to present her evidence under the correct interpretation of the standard at the board level.

[00:01:35] Speaker 02:
So you're talking about a remand just after we decide the legal issue?

[00:01:39] Speaker 01:
Yes, if you decide the legal issue.

[00:01:42] Speaker 04:
But this is not the remand the government is proposing?

[00:01:44] Speaker 04:
Not at all.

[00:01:45] Speaker 04:
For the conclusive or presumptively conclusive interpretation of the regulation?

[00:01:51] Speaker 04:
No, not at all.

[00:01:52] Speaker 04:
You want us to interpret the regulation, interpret it in your favor, and then say there's factual question that hasn't been decided.

[00:01:59] Speaker 01:
Yes, and that's well within your authority and your jurisdiction in this case, as it does involve a misinterpretation of the statute.

[00:02:06] Speaker 01:
And the misinterpretation is entirely inconsistent with what the Veterans Court in the cases that have considered this.

[00:02:13] Speaker 04:
Has the Veterans Court

[00:02:17] Speaker 04:
squarely address and analyze the question as opposed to in a couple of instances I know that it is commonly used the disjunctive term but and in a maybe two instances anyway small number of instances it has said board you considered only possibility a you haven't considered possibilities B and C send it back

[00:02:42] Speaker 04:
But has it actually undertaken a full analysis of the regulatory interpretation?

[00:02:51] Speaker 04:
I'm not aware of any.

[00:02:53] Speaker 01:
I'm not aware of any either, but I think we can use Roberson, Flaming, and Tipton as guides to this.

[00:03:05] Speaker 01:
When in Roberson, the Veterans Court held that

[00:03:09] Speaker 01:
the board's analysis failed to take into consideration that service connection can also be granted service-connected disability, and I'm going to put in there, if it aided or led to assistance to the production of death.

[00:03:25] Speaker 01:
The CAN also language from the Robeson case, I think, shows that they do interpret it to require... Right, but this is a matter of de novo review, and so it would be one thing if we had a Veterans Court full analysis that

[00:03:41] Speaker 04:
that said, oh, we recognize there is a question here, here is how the question ought to be answered, considering the language, considering how it fits with the rest of the regulatory language in the subsection, how it relates to the other subsections, anything that there might be in the regulatory history, how it works in practice, the use of similar grammatical constructions in other regular, we don't have any of that.

[00:04:05] Speaker 01:
Well, I think you have some by analogy, but not from the Veterans Court.

[00:04:09] Speaker 01:
That is true.

[00:04:10] Speaker 01:
And that's why we're here before you is to ask you to lay this out for the Veterans Court that the regulation consists of three distinct clauses that should be used disjunctively

[00:04:21] Speaker 01:
not only the punctuation supports that interpretation, but the very words of the regulation itself.

[00:04:28] Speaker 04:
Where do you get that out of the punctuation?

[00:04:31] Speaker 04:
I mean, why isn't the natural version of this, I assume, for purposes of this question, unusual punctuation, that this is a shorthand version of three separate sentences in which the subject is repeated?

[00:04:44] Speaker 04:
So you'd say, you must do this, you must do that, you must do this other thing.

[00:04:48] Speaker 04:
No and or or between them.

[00:04:50] Speaker 04:
And if that's

[00:04:51] Speaker 04:
the way it read, they would be either three requirements, all of which have to be met, or they would be some kind of a positive where each one was meant to convey meaning for a single overall concept.

[00:05:12] Speaker 04:
I disagree that they... It wouldn't be alternatives if it were three separate sentences.

[00:05:17] Speaker 01:
They are alternatives because they are separated by a semicolon.

[00:05:20] Speaker 01:
If they were three separate sentences, they would be separated by a period.

[00:05:25] Speaker 04:
Tell me how you infer from the fact that you have semicolons that they are meant to be disjunctive.

[00:05:32] Speaker 04:
I don't get that out of the grammar.

[00:05:35] Speaker 01:
Well, as I said, punctuation alone may not be sufficient, but when you combine it with the separate meanings of the terms contributed substantially or materially,

[00:05:47] Speaker 01:
and then you compare that to combined to cause, and then you compare that to aided or lent assistance, those terms are very different in meaning.

[00:05:56] Speaker 04:
So if aided or assistance was enough, under what circumstances would substantially and materially ever have any application?

[00:06:04] Speaker 04:
Are you reading that out?

[00:06:06] Speaker 04:
No, I'm not reading that out.

[00:06:07] Speaker 04:
So how would that not be redundant?

[00:06:10] Speaker 01:
I think that it gives the

[00:06:13] Speaker 01:
the VA, the opportunity, the physicians who are rendering that opinion to look at it and look at it substantially or materially.

[00:06:23] Speaker 01:
And if that question is answered in the affirmative, they don't need to look

[00:06:27] Speaker 04:
But why would you start there if there's a much lower threshold?

[00:06:31] Speaker 04:
Why would anybody in their right mind not start at the one that says, if you need this much, that's all we need to find.

[00:06:38] Speaker 04:
We don't need to worry about whatever materiality is.

[00:06:41] Speaker 04:
It contributed in some way.

[00:06:43] Speaker 01:
Unfortunately, that's the right way the regulation is written.

[00:06:46] Speaker 04:
There is no regulation.

[00:06:47] Speaker 04:
It's not written to say you have to do Clause A before Clause C. No, it's not.

[00:06:52] Speaker 01:
But as I said, if they looked at it and they've got the evidences

[00:06:56] Speaker 01:
overwhelming substantially and materially, then they don't need to get to the next one.

[00:07:00] Speaker 01:
To get to the next one, well, if it didn't do this, combined to cause is different.

[00:07:05] Speaker 01:
It may be somewhat lesser standard than substantially and materially, but it's different.

[00:07:08] Speaker 01:
It implies that there are two or more things that combine to cause.

[00:07:13] Speaker 01:
the veteran's death.

[00:07:15] Speaker 01:
And then in it or lent assistance, I can... Why is that different?

[00:07:19] Speaker 02:
We're under the section called contributory cause of death.

[00:07:22] Speaker 02:
That's right.

[00:07:23] Speaker 02:
So it's clearly something other than the principal cause of death.

[00:07:26] Speaker 02:
That's correct.

[00:07:27] Speaker 02:
So clearly there's something else in play other than this cause, right?

[00:07:31] Speaker 02:
Or else we wouldn't be in the contributory section.

[00:07:34] Speaker 02:
Right.

[00:07:35] Speaker 02:
So clearly there are at least

[00:07:37] Speaker 02:
two different things going on here, which led to death.

[00:07:41] Speaker 02:
That's why we're exhibitory, right?

[00:07:43] Speaker 02:
That's correct.

[00:07:44] Speaker 02:
So why is that different than combined necessarily?

[00:07:48] Speaker 01:
Well, I think something could... You mean why it's contributory?

[00:07:52] Speaker 01:
Are we talking substantially and materially?

[00:07:55] Speaker 01:
Substantially and materially could be one thing that substantially or materially contributed to your death.

[00:08:04] Speaker 01:
The combined cause could be two or more things.

[00:08:07] Speaker 01:
aided or lent assistance could actually be a cascade of things.

[00:08:12] Speaker 01:
We all know in medical science that it's not a, it's kind of fluid.

[00:08:17] Speaker 01:
It's not static.

[00:08:18] Speaker 01:
The rules are changed depending on how advanced we've become in science.

[00:08:23] Speaker 01:
And so when aided or lent assistance, just in this situation, just to take the situation of Mr. Sahlberg, the man had PTSD.

[00:08:32] Speaker 01:
It was found 70% abilitating.

[00:08:34] Speaker 01:
PTSD

[00:08:35] Speaker 02:
Before we get to that, let me just ask you, are you asking us simply to decide here as a matter of law that these are alternatives and each one has to be decided, or are you asking us to also tease out what each of the three categories mean and how they're different?

[00:08:57] Speaker 02:
Well, I mean, do we have to do that?

[00:09:00] Speaker 01:
My first answer to your first question is, yes, I would like you to decide that they are distinct clauses.

[00:09:08] Speaker 01:
They require separate analysis and evaluation, and that the Veterans Court and the board misinterpreted, subsumed into, substantially and materially,

[00:09:22] Speaker 02:
Is your main argument in that regard that you think substantially immaterial is a higher standard that is necessarily compelled by the other two categories?

[00:09:34] Speaker 02:
Yes.

[00:09:36] Speaker 02:
Well, what if we were to define substantially immaterial as something more than casual?

[00:09:42] Speaker 02:
If you say there are two alternatives, because clearly, casually shared applies to all three categories, even if they're different categories, you would agree with that.

[00:09:55] Speaker 02:
So if we were to think that substantially a material is pretty much the same as something more than casual,

[00:10:01] Speaker 02:
then that would take away your whole argument that there's kind of some difference here, right?

[00:10:06] Speaker 01:
I have to tell you that the language of this regulation was changed in 1989, and it's never made it into any version of the CFR.

[00:10:13] Speaker 01:
1989, the language was corrected from casual to causal.

[00:10:19] Speaker 01:
I thought it was a typo.

[00:10:21] Speaker 01:
I've been reading it.

[00:10:22] Speaker 02:
It's causal all along, and then it's other way.

[00:10:24] Speaker 02:
Wait, is it now casual, or is it?

[00:10:26] Speaker 02:
It's causal.

[00:10:28] Speaker 01:
I have been reading it as a puzzle, but then the other day I looked at it and I said, that word's casual.

[00:10:32] Speaker 01:
Casual.

[00:10:32] Speaker 01:
We went to the regulation history.

[00:10:34] Speaker 01:
In 1989, there is... Do you have the...

[00:10:39] Speaker 01:
the side of it nineteen eighty nine there is a change to the regulation changing casual to causal.

[00:10:46] Speaker 04:
Moving to you.

[00:10:46] Speaker 04:
So what it now says you're telling me is and then I'm going to ask you what in God's name this means.

[00:10:53] Speaker 04:
It is not sufficient to show that it causally shared in producing death but rather it must be shown that there was a causal connection.

[00:11:02] Speaker 01:
I know you're going to ask me what that means and I've been struggling with that one all along.

[00:11:07] Speaker 01:
That doesn't make sense either and I would ask the court to clarify on that one also because I think it does the same thing.

[00:11:15] Speaker 01:
Those two terms to me say the same thing.

[00:11:18] Speaker 01:
It made more sense when the word was casual because if you look up the meaning of the word casual it's kind of like sort of ancillary but when you get to causal

[00:11:29] Speaker 01:
very different meaning to that phrase.

[00:11:32] Speaker 04:
Since I had no idea what casual meant, I'm at least glad that that's not in there.

[00:11:36] Speaker 01:
Well, actually, I think if it was casual, I had a better analogy.

[00:11:41] Speaker 01:
Well, it's a casual cause.

[00:11:44] Speaker 01:
I have no idea what that means, but it's an incorrect recitation of the regulation, and it has never made it

[00:11:52] Speaker 03:
into the very last version and we've checked everyone.

[00:12:08] Speaker 03:
What does aided or wet assistance mean?

[00:12:12] Speaker 03:
I mean, 1%, 2%?

[00:12:14] Speaker 03:
You know, in some sense, everything we've done in our lives has some relationship to what happens at the end of our lives.

[00:12:21] Speaker 03:
So how do you call out something that actually aided or wet assistance, if it's not substantial material?

[00:12:28] Speaker 01:
I don't know that you necessarily can put a percentage to it, but I think that, again, I only have three minutes left, so if we can

[00:12:37] Speaker 01:
go into Dr. Solberg's condition, if it aided or lent assistance as the medical science, I mean there can be a cascade of things.

[00:12:48] Speaker 01:
One leads to the other.

[00:12:49] Speaker 01:
One directly leads to the other.

[00:12:52] Speaker 01:
And the science can show that.

[00:12:53] Speaker 01:
And then you get to the death part of it.

[00:12:57] Speaker 01:
So that you can say that but for this severe stress that he suffered,

[00:13:02] Speaker 01:
It would not have resulted in the severity or the onset of the vasculitis.

[00:13:09] Speaker 01:
There seems to be some emerging literature that supports that stress can not only cause vasculitis, it's not an immune disorder.

[00:13:17] Speaker 01:
About 50% of autoimmune disorders have been shown to be caused by stress.

[00:13:21] Speaker 01:
Vascularitis is a horrible, rare condition of the vascular system.

[00:13:26] Speaker 01:
It leads invariably to kidney failure.

[00:13:29] Speaker 01:
People who have kidney failure don't undergo dialysis.

[00:13:32] Speaker 03:
I want to make sure I ask another question, but I want to be sure I fairly understood this.

[00:13:37] Speaker 03:
Mrs. Sauper presented all of her evidence, correct?

[00:13:40] Speaker 03:
Your problem is just that you don't believe that the evidence was analyzed correctly.

[00:13:46] Speaker 01:
I don't believe that either the Board or the Veterans Court interpreted the statute correctly.

[00:13:54] Speaker 01:
And so when they did look at the evidence, they were looking at the wrong analysis.

[00:14:00] Speaker 03:
But they're actually doing a fairly thorough discussion of the facts and the assessment of what caused what.

[00:14:08] Speaker 01:
I would disagree.

[00:14:09] Speaker 01:
I would disagree that either of the physician's opinions were of such a level to override Dr. Spaduto's opinion, but I think that's beyond the jurisdiction of this Court.

[00:14:24] Speaker 03:
But I'm just saying, it's not as though she wasn't given the opportunity to present evidence that would track on your reading of the statute.

[00:14:31] Speaker 01:
Yes.

[00:14:32] Speaker 01:
No, I don't think she, I don't think she was.

[00:14:34] Speaker 03:
What evidence would she present that wouldn't track your reading?

[00:14:37] Speaker 01:
Well, as you noticed that the board and the Veterans Court said that although Dr. Spiduoto's opinion was favorable, it was not sufficient.

[00:14:47] Speaker 01:
But they didn't really, they said because it didn't address, excuse me, the relevant factors or the relevant, it didn't do the relevant inquiry.

[00:14:55] Speaker 01:
The relevant inquiry

[00:14:56] Speaker 01:
I'm sorry, counsel.

[00:14:59] Speaker 03:
Now you're talking about the way they analyze the evidence.

[00:15:00] Speaker 03:
I'm just talking about the evidence that's in the record.

[00:15:04] Speaker 03:
She presented the evidence that would have been supportive of her position given a proper interpretation of the statute.

[00:15:11] Speaker 01:
As a pro se litigant, I don't think she is necessarily in a position to know exactly what sort of evidence she's supposed to submit, particularly

[00:15:20] Speaker 01:
When it's unclear and a mishmash of things that focus on contributed substantially or materially, one could look at everything submitted to the physicians and the questions that they were supposed to answer and the way they did answer the questions that contributed substantially or materially was the sole standard.

[00:15:40] Speaker 02:
i'm not my time you know what it looks like i have one more question at least and if my colleagues do that's absolutely fine uh... in the veteran's court opinion and eight three and i decided in the government there's a paragraph which is what the veteran's court provided as the summary of the medical opinion and in that uh... they talk about the principal cause yadda yadda but under five they say speculation would be required to identify PTSD as a principal or contributory cause of death

[00:16:10] Speaker 02:
So if we've got a medical opinion that says that it's speculation would be required to identify PTSD as a contributory cause of death, that doesn't say it's a substantial material.

[00:16:25] Speaker 02:
I mean, isn't that sufficient to answer the question on any of these categories?

[00:16:30] Speaker 01:
No, I don't think it is because what the RO submitted to the physicians, the questions they submitted really highlighted

[00:16:40] Speaker 01:
contributed substantially or materially.

[00:16:43] Speaker 01:
It did not ask them to consider combined the cause, aided or lent assistance, and neither of the physicians did that.

[00:16:52] Speaker 01:
And I think that where you're referring to this,

[00:16:59] Speaker 01:
The speculation was based on substantially or materially.

[00:17:05] Speaker 04:
I'm going to ask you one question, having been given license to do that a moment ago.

[00:17:10] Speaker 04:
There's been no talk in either side's briefs, or essentially no talk, of the other subsections of this regulation.

[00:17:18] Speaker 04:
And the other subsections, one way to read them, they use the term material at least twice.

[00:17:26] Speaker 04:
There's a suggestion.

[00:17:28] Speaker 04:
that materiality is the governing standard and there are certain kinds of either exceptions or explanations of what would constitute a material constituting factor.

[00:17:43] Speaker 04:
But it seems to me that they tend to support the notion that in the sentence that you're talking about in subsection C,

[00:17:55] Speaker 01:
that all of this is meant to illuminate a governing standard of substantial or material.

[00:18:11] Speaker 01:
Those are distinct subsections also that have to be considered separately, at least as the Veterans Court has determined.

[00:18:18] Speaker 04:
One way, I guess, of asking the question is they seem, or I'll state it and then I'll ask you to respond, they seem to me to presuppose that the standard is material contributor and then they give certain kinds of elaborations, but the presupposition is material contribution is the governing standard.

[00:18:36] Speaker 04:
Tell me why that's wrong.

[00:18:39] Speaker 01:
I have not considered that question, but if I can answer it on rebuttal, if you don't mind, that would give me a chance to consider it.

[00:18:47] Speaker 02:
All right, I will restore to your rebuttal time of two minutes, and we'll hear from the government.

[00:19:02] Speaker 05:
May I please the Court?

[00:19:04] Speaker 05:
If the Court reaches the merits of Mrs. Solberg's new argument, it should find that a contributory cause of death under the regulation is one that contributes substantially or materially to cause death.

[00:19:16] Speaker 05:
And Judge Toronto, I think that you get to the crux of the issue with your questions, which is that you have to read the regulation in context.

[00:19:22] Speaker 05:
And when you read the regulation in context,

[00:19:25] Speaker 05:
it's clear that the threshold is whether or not the contributory cause of death was substantial or material.

[00:19:31] Speaker 04:
You don't make anything in your brief of these other steps.

[00:19:34] Speaker 04:
I guess they're paragraphs, one, two, three.

[00:19:36] Speaker 05:
We don't, your honor.

[00:19:38] Speaker 05:
However, we do argue that punctuation alone is not sufficient to determine a regulation

[00:19:46] Speaker 05:
we mean you have to look to to the fact that all to the contact did not just one thing for one part of the entirety of it.

[00:19:53] Speaker 04:
I would have thought that the one thing you could pretty much agree on here that plane.

[00:20:03] Speaker 04:
It may have, in context, considering a lot of things, only one sensible ultimate meaning, but even that doesn't strike me as plain.

[00:20:13] Speaker 04:
And this is even before you get to any kind of power deference, I guess.

[00:20:17] Speaker 05:
Sure.

[00:20:19] Speaker 05:
Well, I can certainly understand your question that the regulation isn't plain, but when you look at it in context, and you consider that the VA is asking doctors and medical experts,

[00:20:31] Speaker 05:
adjudicators to make difficult determinations about what is a service-connected contributory cause of death, where the individual that we're talking about may have several illnesses, disabilities or ailments.

[00:20:42] Speaker 05:
There's no simple metric that would allow easy quantification of 2% or 30% or something like that.

[00:20:49] Speaker 05:
So what the regulation does is it provides framework for the VA

[00:20:53] Speaker 02:
to make these determinations.

[00:21:09] Speaker 05:
My understanding is the regulation as it is today

[00:21:12] Speaker 05:
read that it is not sufficient to show that it casually shared in producing gas.

[00:21:17] Speaker 05:
That's my understanding of the regulation.

[00:21:20] Speaker 05:
If I'm incorrect about that, I certainly apologize.

[00:21:23] Speaker 04:
So you're not aware of what is this, a 1989 alteration that I think was referred to?

[00:21:28] Speaker 04:
No.

[00:21:30] Speaker 04:
So what does casually mean?

[00:21:33] Speaker 05:
Casually means not substantial or material, and I think that it's

[00:21:37] Speaker 05:
If you consider this case in context, and I know that we haven't talked about the government's position for remand and prudential considerations, but there's one that's very important to talk about, or there are two that I'd just like to discuss briefly today without going through what's in our brief.

[00:21:50] Speaker 05:
And the first is that the Veterans Court certainly has expertise with these matters, and they've considered many cases dealing with contributory causes of death, so they haven't hit the issue square on.

[00:22:00] Speaker 05:
And the other is that the facts of this case are such, and of course this court can't consider facts

[00:22:04] Speaker 05:
that were the court to remand this case to Veterans Court, it's very possible that the Veterans Court may find under either party's interpretation of the regulation, whether it's the government's or Mrs. Sahlberg's, that she's not entitled to benefit.

[00:22:17] Speaker 03:
Well, let me ask you this, and this betrays my ignorance perhaps of how this process is supposed to work, but if we look at the record and she loses under either standard, why do we need to remand?

[00:22:30] Speaker 05:
Well, Your Honor, this Court has limited jurisdiction to consider facts.

[00:22:36] Speaker 05:
My understanding is that, I'm not my understanding, but this Court, I believe, could go through a harmless error analysis.

[00:22:42] Speaker 03:
Right.

[00:22:42] Speaker 03:
That's my question.

[00:22:43] Speaker 03:
We obviously can't weigh facts.

[00:22:45] Speaker 03:
Right.

[00:22:45] Speaker 03:
But if you believe everything that's in there, and you say, regardless of what the standard is, you don't get it, why go through the pain and remit?

[00:22:59] Speaker 05:
Our position, Your Honor, is that under the harmless error standard that the court set forth in the Wood v. Peake case that was in, that comes from the, and I may not get this name right, but Smiradze v. Principe case, that yes, if the facts are undisputed, then the court does have jurisdiction to make a harmless error.

[00:23:15] Speaker 04:
This is a regulation that, at least according to the citations, seems to come up rather a lot.

[00:23:20] Speaker 04:
Yeah.

[00:23:22] Speaker ?:
Great.

[00:23:23] Speaker 04:
What sense would it make, assuming that there is a realistic possibility that the interpretation might make a difference, what sense would it make either for us not to clarify the interpretation of the regulation or to send it back to the Veterans Court for what I thought you were suggesting, the Veterans Court to say to itself, we don't need to decide it.

[00:23:47] Speaker 04:
Isn't clarification of this regularly recurring regulatory question a good idea, assuming that we don't pretty much know that it makes no difference in this case?

[00:24:00] Speaker 05:
Well, our view is that there hasn't been confusion.

[00:24:03] Speaker 05:
The regulation has been in existence since 1961.

[00:24:06] Speaker 04:
You're arguing for an interpretation that I gather it is undisputed, at least in a couple of cases, the Veterans Court has acted contrary to.

[00:24:16] Speaker 04:
It has said, you, the board, have decided the first clause, but you haven't decided clauses two and three.

[00:24:23] Speaker 04:
Go and do that.

[00:24:25] Speaker 05:
That's not how we read those cases.

[00:24:27] Speaker 05:
So for example, in the Flamingdeaf-Princeby case,

[00:24:29] Speaker 05:
The veteran died of lung cancer and he was service-connected for tuberculosis.

[00:24:33] Speaker 04:
Is there, I'm sorry, is there no case, I thought that, well, there was a collection of cases in which people used the term or put those to one side, but that there were at least two cases, maybe one case in which the Veterans Court said the board considered the first clause, it didn't consider the other two clauses or at least one of them, remand for the board to do that.

[00:24:56] Speaker 05:
Yes, that was the Roberson v. Shinseki case.

[00:25:00] Speaker 05:
In that case, the VA conceded before the Veterans Court that the medical opinions in the case, and I believe two of them, had no rationale in them whatsoever.

[00:25:08] Speaker 05:
And the private opinion had a rationale.

[00:25:11] Speaker 05:
It wasn't that it lent assistance to the production of death or combined to cause death.

[00:25:15] Speaker 05:
It was that the service-connected tuberculosis likely weakened his lungs and made him more susceptible.

[00:25:21] Speaker 05:
to his cause of death.

[00:25:22] Speaker 05:
So there, the Veterans Court remanded to consider the evidence in light of all of 3.312C, not just C1 and not the three clauses that we're talking about, but all of it.

[00:25:32] Speaker 05:
And then on remand, the board decided to test correctly without using forum.

[00:25:36] Speaker 05:
and ultimately didn't.

[00:25:38] Speaker 04:
I remember in your brief here, did you make the argument that the interpretive question in front of us should not be decided because it is quite clear that under any interpretation the claim is meritless here?

[00:25:56] Speaker 05:
No, Your Honor, we didn't.

[00:25:57] Speaker 05:
We argued generally that this case would benefit from briefing before the Veterans Court and the Veterans Court's ability to consider factual issues.

[00:26:05] Speaker 02:
Can you explain to me, just go over again, what the government's position is on the statutory construction?

[00:26:11] Speaker 02:
I mean, if you're saying contributed substantially or materially, so let's just say contributed materially, that the other two clauses are just examples of what

[00:26:23] Speaker 02:
the regulation perceives as a material contribution or what?

[00:26:29] Speaker 05:
Correct.

[00:26:30] Speaker 05:
Our position is that the language that follows substantial or material serves to amplify, clarify, and explain what a substantial or material contribution is.

[00:26:41] Speaker 05:
It gives the adjudicators as adopters tools and a framework to consider whatever the service-connected disability is in any one case.

[00:26:50] Speaker 05:
to find out whether it meets that threshold of substantial or material.

[00:26:54] Speaker 02:
So why would it not be your view that in every case one ought to look at all three prompts, whether they're disjunctive or explanatory or the word you use which is framework.

[00:27:07] Speaker 02:
Even under your view, if it's a framework, why shouldn't the fact finder then go through the whole clause and not stop at contributed substantially or material?

[00:27:17] Speaker 02:
Or really look at, be required to look at the rest of the clause?

[00:27:22] Speaker 05:
Our view is that the fact finder is required to look at all of the regulation.

[00:27:26] Speaker 05:
However, the facts of any given case may not necessitate that they spell it out and go through the analysis.

[00:27:32] Speaker 05:
In this case, the two medical experts that looked at the facts of this case, the two doctors, the first one, for example, in the September 2010 medical opinion, which is at Joint Appendix 199, concluded that there was no established correlation between the PTSD and the veteran's vasculitis.

[00:27:49] Speaker 05:
He said that correlating service-connected PTSD would require significant speculation, which goes to one of your earlier questions.

[00:27:58] Speaker 05:
If you look back at the regulatory text and you go to 3.312A, it states that the issue involved determining service connection for whether a disability is a contributory or a principal cause of death will be determined by the exercise of sound judgment without recourse to speculation.

[00:28:15] Speaker 05:
Here, it was such a clear case that there was no need for the adjudicators to go through the full analysis, which is different.

[00:28:21] Speaker 02:
That's a different question than what we've got here.

[00:28:23] Speaker 02:
This is so strange to me, because it seems to me there's not that much daylight between your position and your friend's position, because you're all saying that you have to look.

[00:28:32] Speaker 02:
at the entire clause and all of the factors, whether they're disjunctive or not.

[00:28:38] Speaker 02:
And so you're agreeing with her.

[00:28:40] Speaker 02:
And you're just saying the difference, though, is kind of a process difference.

[00:28:43] Speaker 02:
Like, do you have to really spell out your analysis with respect to each factor as opposed to just giving the fact finder the benefit of the doubt that they looked at the right thing?

[00:28:53] Speaker 02:
That's a very different question than the one I perceived as being presented in this case.

[00:28:58] Speaker 02:
Did you get my confusion?

[00:29:00] Speaker 05:
I think I do, Your Honor, and correct me if I'm wrong, but I think that the issue resolves on whether you put, if you put the or into the regulation, then what does substantial or material mean, if that necessarily makes lent assistance a lower threshold.

[00:29:14] Speaker 05:
In other words, there's an A, B, or C criteria.

[00:29:16] Speaker 05:
But here, when you read the regulation in its entirety and you look at just this clause, it's clear, at least in our view... But you're saying that the fact-finder has to consider all portions of them.

[00:29:27] Speaker 02:
each of the clauses.

[00:29:28] Speaker 05:
Correct.

[00:29:29] Speaker 05:
So I think that the two of the veteran's cases, or all three of the veteran's cases that I think we both agree are the most on point of all of them.

[00:29:37] Speaker 05:
So if you take a situation where a veteran has service-connected tuberculosis, and his ultimate cause of death is lung cancer, in that case it may make sense to consider whether the tuberculosis lent assistance to the production of death, whether it was a substantial or material cause, because they're connected, they both affect the lungs.

[00:29:54] Speaker 05:
Whereas in this case, where the question is about PTSD and the veteran died from an autoimmune disorder that led to end-stage renal disease, it didn't make sense.

[00:30:04] Speaker 03:
If there were evidence, if the fact finder had determined that the PTSD actually did cause the onset of the vasculitis or make the vasculitis worse, then it would meet that standard.

[00:30:17] Speaker 03:
But that's not what the fact finder found.

[00:30:19] Speaker 05:
Right.

[00:30:19] Speaker 05:
So here the fact finder found that vasculitis and

[00:30:23] Speaker 05:
end-stage renal disease where the contributory causes of death.

[00:30:26] Speaker 05:
If those were service-connected, then certainly they would have liked assistance in a fashion that was substantial or material.

[00:30:34] Speaker 04:
Can I ask what, at least, I conceive of as a version of the question the Chief Judge asked?

[00:30:43] Speaker 04:
If the three clauses are attempts to illuminate a single standard,

[00:30:52] Speaker 04:
then it would appear that one would need to ask the question, aid or whatever the other word is, aid or length assistance to, in trying to understand whether a cause was a material cause.

[00:31:14] Speaker 04:
In which case, I guess the question is, what difference is there between that approach

[00:31:22] Speaker 04:
and viewing the three clauses as alternatives separated by an implied disjunction.

[00:31:34] Speaker 05:
The difference, as I understand the question, is that the bar is substantial or material.

[00:31:40] Speaker 05:
And the aided or lent assistance language, or the combined to cause death language, are tools that the doctors can use or the experts can use to make that determination about whether something is substantial or material.

[00:31:55] Speaker 05:
And that's borne out throughout the regulation, which all of the products that I mentioned earlier all speak to whether something has a material effect.

[00:32:03] Speaker 05:
or render somebody materially susceptible.

[00:32:06] Speaker 02:
So is the real fight here, the essence of the fight here, whether or not we apply, we necessarily apply material contribution as opposed to just a contribution?

[00:32:18] Speaker 02:
Is that where this ends up?

[00:32:20] Speaker 02:
Is that what you're saying?

[00:32:22] Speaker 02:
I can see that, but I'm just trying to figure out whether that's really then what's going on here, as to whether or not material remains a threshold.

[00:32:34] Speaker 05:
I think that's correct, Your Honor, because if the court were to rule against us,

[00:32:39] Speaker 02:
The testament might effectively become went into the system to the production of death, because that would then be something other than it doesn't therefore have to be a material contribution as long as it went or just to paraphrase it.

[00:32:51] Speaker 03:
Actually, in a way, I think you're saying it is disjunctive, but it's just as modified by.

[00:32:57] Speaker 03:
substantial and material.

[00:32:58] Speaker 03:
There's different kinds of substantial and material.

[00:33:01] Speaker 03:
It can be related or in assistance.

[00:33:03] Speaker 03:
It can be contributed.

[00:33:04] Speaker 03:
It can be caused.

[00:33:06] Speaker 03:
But you can't read out the substantial and material.

[00:33:09] Speaker 03:
Is that right?

[00:33:10] Speaker 03:
That's really what you're saying?

[00:33:13] Speaker 05:
I believe that's correct.

[00:33:14] Speaker 05:
I don't want to agree to something.

[00:33:15] Speaker 03:
No, I don't.

[00:33:15] Speaker 03:
I'm not going to trap you here.

[00:33:17] Speaker 03:
No, I understand.

[00:33:18] Speaker 03:
But you're just saying you can't look at the

[00:33:20] Speaker 03:
It's not that destructive.

[00:33:21] Speaker 03:
In other words, you can't look at the last one in the chain and say, well, the preceding language doesn't have anything to do with it.

[00:33:26] Speaker 03:
Right.

[00:33:27] Speaker 05:
Our view is that if it combined to cause death, it was substantial or material.

[00:33:30] Speaker 05:
If it lent a system to the production of death, it was substantial or material.

[00:33:33] Speaker 02:
Can I just ask one more?

[00:33:34] Speaker 02:
Just the last sentence, I don't know.

[00:33:36] Speaker 02:
The one thing I think everybody agrees on is that at least the second portion of the last sentence.

[00:33:42] Speaker 02:
We're all confused about the first portion.

[00:33:44] Speaker 02:
But the last portion says, rather, it must be shown that there was a causal connection.

[00:33:49] Speaker 02:
So everybody agrees that no matter what standard or whether they're disjunctive or not, there has to be a causal connection, right?

[00:33:59] Speaker 05:
Correct.

[00:34:00] Speaker 05:
And here the board found on Joint Appendix 93 that there was no causal connection, which goes back to our argument for remand and the prudential considerations.

[00:34:10] Speaker 02:
Well, in your view, can there be a material or substantial contribution without a causal connection?

[00:34:16] Speaker 02:
No.

[00:34:16] Speaker 02:
I mean, the two necessary.

[00:34:18] Speaker 04:
Or the other way.

[00:34:19] Speaker 02:
Or the, yeah.

[00:34:19] Speaker 04:
Correct.

[00:34:21] Speaker 04:
Well, then why can't there be a causal connection without it being material?

[00:34:26] Speaker 04:
That is, isn't the causal connection requirement of the last sentence of paragraph one a weaker requirement than material contributing?

[00:34:40] Speaker 04:
It's, it's, uh, we could make it of a piece with, with the second and third clauses of the previous sentence.

[00:34:54] Speaker 04:
These things have to be present.

[00:34:56] Speaker 05:
Right.

[00:34:58] Speaker 04:
So they are necessary conditions, which is to say conjunctive with a material contribution.

[00:35:05] Speaker 05:
Before, under our reading of the regulation, before you can find that a contributory cause of death was a substantial or material

[00:35:11] Speaker 05:
contributing factor, there would first have to be a showing that there was a causal effect.

[00:35:15] Speaker 05:
And then you would go into the analysis.

[00:35:17] Speaker 04:
How big an effect?

[00:35:19] Speaker 04:
That is the question, you would then ask the question, how large a contribution did this make?

[00:35:26] Speaker 04:
And what they want is something that a relevant medical expert is prepared to say, this did contribute in some way because the PTSD causes

[00:35:39] Speaker 04:
stress and the stress releases certain kinds of chemicals in the body and that can have a certain effect and we have no idea how big an effect, but some, yeah.

[00:35:50] Speaker 04:
And the question is, should that be enough?

[00:35:52] Speaker 04:
And isn't that what the dispute is about?

[00:35:58] Speaker 05:
Yes.

[00:35:59] Speaker 05:
Thank you.

[00:36:06] Speaker 01:
I think I have an answer to your question, I hope, anyway.

[00:36:10] Speaker 01:
Section 2, where the word materially is used, or subsection 2, they're referring to minor service-connected disabilities, particularly those of a static nature, which is fixed or stationary condition, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability.

[00:36:33] Speaker 01:
Section 3 also

[00:36:35] Speaker 01:
refers to the primary cause of death as being unrelated to the disability.

[00:36:42] Speaker 01:
I think that those two sections, when they use materially, that if you have a primary cause of death that is unrelated to the service-connected disability, they're explaining in those circumstances what would be a contributory cause of death.

[00:37:01] Speaker 01:
The fourth one

[00:37:05] Speaker 01:
where they're talking about, let's see, eventual death can be anticipated, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.

[00:37:25] Speaker 01:
I think that given the way they use materially in each one of those, it's

[00:37:30] Speaker 01:
distinct to each one of those sections as opposed to modifying what is said in C generally.

[00:37:36] Speaker 01:
And if we do look at the definitions of each of the terms used in C1, they really are different.

[00:37:44] Speaker 01:
And it's very hard for me to agree that there is a requirement of substantially or materially when the phrase combined to cause is used or aided or lent assistance.

[00:37:58] Speaker 01:
Contributed has played a significant part in bringing about an end result, substantially as being largely but not wholly that which is specified materially is having real importance to great consequence.

[00:38:10] Speaker 01:
Combined to cause, combined means acting together.

[00:38:12] Speaker 01:
and cause is defined as to serve as a causation of.

[00:38:17] Speaker 01:
So as I said, acting together would be two things working together.

[00:38:21] Speaker 01:
Maybe neither one would be a material or substantial, but the two together synergistically somehow combined to cause the death of the veteran.

[00:38:28] Speaker 01:
And then aided or lent assistance, which I think also has to be really given a hard look at because if you start out with a condition that you say, okay, PTSD was not the primary cause, but did it

[00:38:40] Speaker 01:
involve this cascade of things that happen in the body to cause the veteran to either get a condition or it's so exacerbated the condition that that condition then was the primary cause.

[00:38:57] Speaker 01:
I don't think that material can be read into subsections or the two subsections merely based on the fact that it is used in the sections following.

[00:39:09] Speaker 01:
I think they're used differently, particularly when they're talking about it, that the actual service-connected disability is unrelated in two and three.

[00:39:20] Speaker 02:
I don't want to take up much of your time here while your time is expired, but do you have any further illumination on this word, casually versus calmly?

[00:39:28] Speaker 01:
Yes, I do.

[00:39:31] Speaker 01:
It is 54 Federal Register, October 18th, 1989.

[00:39:35] Speaker 04:
54 Federal Register.

[00:39:37] Speaker 01:
Do I have to post a note?

[00:39:40] Speaker 04:
No.

[00:39:40] Speaker 04:
Oh, you don't have a page number.

[00:39:41] Speaker 04:
It's just a date, October 18th.

[00:39:43] Speaker 01:
Yeah, it's very short.

[00:39:45] Speaker 01:
uh... it's really really really really going to be going to the regulation uh... in uh... but law or lexus there will be a hyperlink to the october eighteenth nineteen eighty nine federal register click on the hyperlink i have a perfect on the hyperlink you'll find it.

[00:40:02] Speaker 04:
I was quite surprised to find it forty two eight oh three

[00:40:06] Speaker 04:
That's listed at the bottom of the section in the CFR, but the word didn't get changed?

[00:40:10] Speaker 04:
Didn't get changed.

[00:40:11] Speaker 02:
Thank you.