[00:00:50] Speaker 02:
And our final case this morning is number 15-7005 Shoemake versus McDonald, Mr. Carpenter.

[00:00:59] Speaker 03:
And please court, Carpenter appearing on behalf of Ronald Shoemake.

[00:01:04] Speaker 03:
An issue in this case of the legal standards concerning the presumption of aggravation.

[00:01:09] Speaker 03:
There are two relevant legal standards in that presumption.

[00:01:13] Speaker 03:
The first standard deals with the triggering event for the application of that presumption

[00:01:18] Speaker 03:
which is that there is an increase in the severity of a pre-existing condition, which was noted at entrance.

[00:01:25] Speaker 02:
The second legal standard deals with the evidence required to rebut the presumption once that... Well, what you've got here basically is a board decision, which at a couple places articulates the wrong standard.

[00:01:38] Speaker 02:
Yes.

[00:01:39] Speaker 02:
And the question is whether that requires reversal,

[00:01:46] Speaker 02:
Veterans Court on appeal said no.

[00:01:50] Speaker 02:
So why were they wrong?

[00:01:52] Speaker 03:
Well, I believe they were wrong because they relied upon the notion that confusion and misphrasing, which creates obvious imprecision, is an acceptable interpretation and thus application of a statutory presumption.

[00:02:10] Speaker 03:
There are very precise terms and increase in order to trigger

[00:02:14] Speaker 03:
and clear and unmistakable evidence in order to rebut.

[00:02:18] Speaker 03:
The board was quite candidly all over the map, clearly finding that the presumption of soundness did not apply, but never directly addressing whether the presumption of aggravation applied.

[00:02:31] Speaker 03:
And they didn't do that because they didn't address the threshold question, the first legal standard under the statutory presumption, which is that there was an increase.

[00:02:42] Speaker 03:
In fact, they used medical evidence that substantially said there was no increase to substantiate their claim that somehow there was a natural progression.

[00:02:54] Speaker 03:
In fact, if the evidence showed there was no increase, then the presumption simply doesn't apply.

[00:03:03] Speaker 03:
Mr. Shoemate had the right to have the correct legal standard apply when the Veterans Court

[00:03:09] Speaker 03:
essentially said that any errors of confusion with the board's phrasing was not prejudicial simply undermines the use of a statutory presumption.

[00:03:20] Speaker 03:
It is that language within the statutory presumption that gives the veteran the benefit of that presumption.

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And if there was, and we believe there was, and that the board implicitly found that there was an increase,

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then clearly the presumption applies.

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And there is a heavy burden on the board to come forward with evidence that the increase that occurred during service was the natural progression by clear and unmistakable evidence, not by mere opinion.

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All they have are repetitive opinions and unsubstantiated.

[00:03:58] Speaker 03:
That sounds like a sufficiently evidence question.

[00:04:04] Speaker 03:
Well, it may have been below, but I do not believe it is here.

[00:04:07] Speaker 03:
Here, it is a question of whether or not the statute can be interpreted in such a way to simply dismiss the phrasing as items that can be confused by the decision maker, in this case, the board.

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And the board is the critical decision maker in this process to determine whether or not the veteran is or is not afforded the benefit of the presumption of aggravation.

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If he is afforded that benefit, we believe that the only resolution in this case is for him to prevail.

[00:04:40] Speaker 04:
If we think that the Veterans Court understood the correct legal standard and looked at the board evidence and found that it met that correct legal standard, aren't we without jurisdiction to do anything else?

[00:04:53] Speaker 04:
Aren't your arguments that you're making to us more properly directed to the Veterans Court?

[00:05:00] Speaker 03:
Well, they were made to the Veterans Court, and they were rejected as simply not being sufficient because the confusion was permitted.

[00:05:11] Speaker 04:
Given our, as you know, limited review.

[00:05:17] Speaker 04:
Yes, I understand.

[00:05:18] Speaker 04:
Because it seems to me, I understand what you're arguing.

[00:05:20] Speaker 04:
It seems to me that you had a reasonably good argument at the Veterans Court that the board's confusing

[00:05:29] Speaker 04:
description of this standard could have caused harmful error in the way it made its factual findings.

[00:05:37] Speaker 04:
But it seems to me that the Veterans Court found that that was not the case.

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And I don't understand how we have jurisdiction to review that finding.

[00:05:47] Speaker 03:
I'm not sure they found that it was not the case.

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I believe that the lower court found that they did not apply the correct legal standard.

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The court then rationalized that conclusion

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and said that it wasn't prejudicial based upon the confusing phrasing.

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I'm suggesting that as a matter of law, the veteran is entitled to the plain meaning of the statutory language.

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And he did not receive that benefit.

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And the Veterans Court, in determining that it was not prejudicial based upon this confusing phrasing, was depriving him of the benefit of that statutory presumption.

[00:06:27] Speaker 04:
But the error then you're saying is the error in the Veterans Court finding a prejudicial error.

[00:06:34] Speaker 03:
Finding that the use of confusing phrasing is permissible when you're dealing with a question of statutory interpretation to implement

[00:06:47] Speaker 03:
the presumption of aggravation.

[00:06:50] Speaker 02:
But then they didn't hold that you can apply the wrong standard.

[00:06:53] Speaker 02:
I'm sorry?

[00:06:54] Speaker 02:
They didn't hold that the board could apply the wrong standard.

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It just said that the board's inaccurate statement of the standard was not harmful error.

[00:07:03] Speaker 02:
Right.

[00:07:03] Speaker 03:
And I'm suggesting that that decision

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is inconsistent with the law, that the intent of Congress in affording a statutory presumption is to set out certain legal standards that, if met, the veteran is relieved from the responsibility of coming forward with evidence.

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If you accept the interpretation relied upon by the Veterans Court to support their non-prejudice determination, it eviscerates the statutory presumption.

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Because it's meaningless.

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The board can simply be, as it was in this case,

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without any clear direction.

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And the real problem in this case, Your Honor, is that the Veterans Court does not go into any analysis about what 1153 and the VA's regulation requires.

[00:07:49] Speaker 03:
And they require clear and specific and precise things, a finding of increase in order to trigger the presumption, and clear and unmistakable evidence to rebut it.

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If the lower court had done an analysis and said,

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and based upon the evidence before the board, the board was justified in its conclusion, then that is an application of fact.

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And we're out of this court's jurisdiction.

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But that's not what the Veterans Court did.

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The Veterans Court took the shortcut and said, well, yes, it's confusing, but it's not prejudicial.

[00:08:25] Speaker 03:
Well, in the context of a statutory presumption, it is prejudicial.

[00:08:30] Speaker 03:
Was there further questions from the panel?

[00:08:33] Speaker 03:
OK.

[00:08:33] Speaker 03:
Thank you, Mr. Carver.

[00:08:36] Speaker 02:
Ms.

[00:08:37] Speaker 02:
Gerber?

[00:08:50] Speaker 00:
May it please the court?

[00:08:51] Speaker 00:
This is an application of factual law over which the court does not possess jurisdiction.

[00:08:58] Speaker 04:
Let's assume that the board definitely applied the incorrect legal standard and that the Veterans Court recognized that

[00:09:04] Speaker 04:
How are the findings of the fact made by the board under that incorrect legal standard harmless air?

[00:09:11] Speaker 04:
How do we know that the facts would have came out the same way if they had applied the proper legal standard?

[00:09:19] Speaker 00:
Taking your assumption, Your Honor, which we dispute, obviously, the Veterans Court on JA5 says the board's decision

[00:09:30] Speaker 00:
when read in whole, including the board's discussion of the evidence relied upon, indicates that the board found that there was clear and unmistakable evidence that the changes in Mr. Shoemake's hearing during service were due to the natural progression of the condition.

[00:09:42] Speaker 00:
That is the correct standard to be applied, and the Veterans Court's responsibility in reviewing the board's decision is to take the factual determinations

[00:09:56] Speaker 00:
by the board and then determine whether there is, in fact, clear and unmistakable evidence.

[00:10:01] Speaker 00:
That's in Miller versus West at the Veterans Court decision explaining that although it does not make factual determinations, it does review de novo whether those factual determinations constitute clear and unmistakable evidence.

[00:10:14] Speaker 00:
That's an application of fact law.

[00:10:15] Speaker 00:
And again, this court does not possess jurisdiction over that.

[00:10:19] Speaker 04:
When do we get to the point, though, where the Veterans Court's harmful error standard is just

[00:10:25] Speaker 04:
it becomes impossible for them.

[00:10:27] Speaker 04:
I mean, suppose you have a legal standard that the board has to apply, and it makes every single specific finding key to language using an outdated or incorrect legal standard.

[00:10:41] Speaker 04:
And that goes up on appeal, and the court says, well, they used all the wrong language, but I think I get what they mean.

[00:10:47] Speaker 04:
And even under the new standard, they would have come out the same way, even though every single finding of fact was using the incorrect language.

[00:10:55] Speaker 04:
Would that be legal error there?

[00:10:59] Speaker 00:
Your Honor, I'm not prepared to say specifically whether that would be.

[00:11:05] Speaker 00:
It's certainly closer to an instance of legal error than here.

[00:11:09] Speaker 00:
The board's decision was not making factual determinations with the wrong standard in all places.

[00:11:16] Speaker 02:
How do you say that?

[00:11:17] Speaker 02:
Because it twice articulated the wrong standard.

[00:11:20] Speaker 00:
Yes, but it twice articulated the correct standard on JA54.

[00:11:24] Speaker 00:
the board explains the two-step process that my friend explained, that first there must be an increase in disability and then that the clear and unmistakable, there must be clear and unmistakable evidence to rebut that presumption and that burden is on the VA.

[00:11:44] Speaker 00:
And then on page JA62, the board in its decision says, as the board finds that there is clear and unmistakable evidence

[00:11:54] Speaker 00:
that there was no increase in the veteran's preexisting hearing loss beyond the natural progress of the disease during service.

[00:12:00] Speaker 00:
There is no basis to establish service connection.

[00:12:04] Speaker 00:
Now, Mr. Schumacher argues that that is incorrect there because rather than saying there was no increase beyond the natural progression, there had to be a finding that the increase was due to the natural progression.

[00:12:19] Speaker 00:
But that's two sides of the same coin.

[00:12:23] Speaker 00:
And in fact, this court has made the same articulation of the standard under section 1153.

[00:12:30] Speaker 00:
In Davis, this court said that the statute excludes from aggravation any increase attributable to the natural progression of disease.

[00:12:39] Speaker 00:
That's the same language.

[00:12:40] Speaker 02:
The problem is that on the findings of fact, which would seem to be the most significant part of the board decision on page 50,

[00:12:48] Speaker 02:
The finding of fact is made under the wrong standard.

[00:12:52] Speaker 00:
Yes, Your Honor, it is.

[00:12:52] Speaker 02:
It's only when you get to the reasons and bases that they articulate the correct standard.

[00:12:59] Speaker 00:
It is certainly regrettable that the Board used that language in one place and different language, the correct language elsewhere.

[00:13:09] Speaker 00:
This Court, however, and the Veterans Court have determined that if we're looking at the Board's decision as a whole,

[00:13:16] Speaker 00:
can see that the board did apply the correct standard, then that isn't necessarily a legal error.

[00:13:24] Speaker 00:
And the board, excuse me, the Veterans Court determined that it wasn't a prejudicial error.

[00:13:28] Speaker 00:
And this court's decision in Cushman makes that clear and says the board, in its decision, made an incorrect legal standard.

[00:13:40] Speaker 00:
said unemployable rather than the standard that was actually required, but said that when you look at the board's decision as a whole, one can determine that they didn't actually rely on that incorrect legal standard and they applied the correct standard.

[00:13:54] Speaker 00:
And that's what the Veterans Court determined here.

[00:13:56] Speaker 00:
And this court has ruled that prejudicial error determination by the Veterans Court is a factual determination unreviewable here.

[00:14:05] Speaker 02:
And therefore, this is- I'm not sure that's always the case.

[00:14:10] Speaker 00:
There may be certainly such extreme cases that this court might say that there is legal error as a matter of law.

[00:14:20] Speaker 00:
But just as this court does not review weighing of evidence but might say there's a legal error if there's no evidence, that's the sort of situation that we've been talking about.

[00:14:30] Speaker 00:
And that's not the situation here, Your Honor.

[00:14:33] Speaker 00:
And therefore, we request that the court dismiss this case for lack of jurisdiction.

[00:14:40] Speaker 02:
Okay.

[00:14:41] Speaker 02:
Thank you, Ms.

[00:14:41] Speaker 02:
Gerber.

[00:14:45] Speaker 03:
Just briefly, Your Honor, it's clear that the Board did not use the correct legal standard in its finding of facts.

[00:14:52] Speaker 03:
And quite frankly, I do not believe that the Veterans Court used the correct legal standard, because left out of what the Veterans Court said was the critical qualifier in the legal standard under the VA's regulation, which is clear and unmistakable evidence.

[00:15:09] Speaker 03:
it is not simply a matter that there was an increase due to the natural progression.

[00:15:15] Speaker 03:
An increase due to the natural progression and evidence thereof is not sufficient.

[00:15:20] Speaker 03:
That evidence under the correct legal standard must be clear and unmistakable, and in the words of the VA's regulation, must be obvious and manifest.

[00:15:31] Speaker 03:
Those are important, precise considerations

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that require analysis by the board of the evidence of record.

[00:15:40] Speaker 03:
And that evidence simply wasn't there because the board used the wrong analysis.

[00:15:46] Speaker 02:
Well, but the board does indicate the board found there was clear and unmistakable evidence.

[00:15:52] Speaker 02:
The changes were due to the natural progression of the condition.

[00:15:56] Speaker 03:
And they did make that finding.

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And that finding was based upon evidence

[00:16:02] Speaker 03:
that was exclusive to opinions by their VA examiner.

[00:16:07] Speaker 02:
I was directing that to your suggestion that the board used the wrong standard.

[00:16:11] Speaker 02:
Sounds on the board.

[00:16:12] Speaker 02:
I mean, the Veterans Court used the wrong standard.

[00:16:15] Speaker 02:
In fact, the Veterans Court used the right standard, correct?

[00:16:19] Speaker 03:
Well, in articulating it, yes.

[00:16:21] Speaker 03:
But I do not believe in their analysis of whether this was or wasn't prejudicial, because if that is the correct legal standard,

[00:16:29] Speaker 03:
as articulated by the Veterans Court, then it cannot be non-prejudicial for the board to simply have abandoned it.

[00:16:39] Speaker 03:
The board didn't go to the critical piece in determining whether or not that presumption was or wasn't rebutted.

[00:16:46] Speaker 03:
The court below concedes that implicitly the board found that there was an increase.

[00:16:52] Speaker 03:
That seems to me to be an error of law because you don't make an implicit finding, you make an explicit finding in order to trigger it.

[00:17:01] Speaker 03:
But then once it's triggered, then the evidentiary burden shifts to the VA.

[00:17:06] Speaker 03:
And the VA must come forward with clear and unmistakable evidence.

[00:17:10] Speaker 03:
And what is described in the VA's regulation is based upon medical facts and data.

[00:17:16] Speaker 03:
There are no medical facts and no data in this record and the board attempts to point to none.

[00:17:23] Speaker 03:
The board simply points to the unsubstantiated conclusion of their examiners which included the language of the regulation that it did not increase beyond the natural progression by clear and unmistakable evidence.

[00:17:40] Speaker 03:
But that is not the legal standard.

[00:17:42] Speaker 03:
The legal standard as defined by the VA's regulation is

[00:17:46] Speaker 03:
is that it must be a manifest and obvious evidence, and that that evidence must be based upon medical facts and data, supporting data.

[00:17:57] Speaker 03:
That's just for the questions from the panel.

[00:17:58] Speaker 03:
Thank you very much.

[00:17:59] Speaker 02:
OK.

[00:17:59] Speaker 02:
Thank you, Mr. Carpenter.

[00:18:00] Speaker 02:
Thank both counsel.

[00:18:01] Speaker 02:
The case is submitted.

[00:18:02] Speaker 02:
That concludes our session for today.