[00:00:00] Speaker 02:
Mary's McDonald

[00:00:29] Speaker 02:
Mr. Patrick, my number is ready.

[00:00:31] Speaker 03:
Thank you, Your Honor.

[00:00:34] Speaker 03:
Members of the Council.

[00:00:37] Speaker 03:
In this matter, Repellent Berries is asserting that the Veterans Court continues to misinterpret and misapply 38 U.S.C.

[00:00:45] Speaker 03:
Section 1154B, Combat Veterans Preference.

[00:00:52] Speaker 03:
We believe that it's shown on the face of this record with regard to Judge Mormon's decision

[00:00:59] Speaker 03:
where he starts out by saying that the court has never held that a condition defined in terms of tone threshold perceptions and speech recognition measurements is susceptible to lay observation.

[00:01:13] Speaker 03:
Now, translating that into vernacular, he's saying that the Veterans Court does not accept lay testimony that a person has hearing loss.

[00:01:27] Speaker 03:
I believe that that is not what this court's jurisprudence allows for, and it's certainly not what Congress intended when it created the combat veterans preference.

[00:01:43] Speaker 04:
Can I ask you a question about, I guess that's sort of particular to the pages, page six of your brief, which is an

[00:01:55] Speaker 04:
portion of an extended quote from, I guess, a declaration that Mr. Veery submitted or some kind of submission by him.

[00:02:05] Speaker 04:
In the middle of that page, the it was in my assignment paragraph, reads to me as though that is saying that it wasn't what I experienced in combat.

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It was rather what I experienced in this

[00:02:25] Speaker 04:
rifle training, non-combat duty, that is the basis for my appeal.

[00:02:33] Speaker 04:
And if that's what it says, how does the 1154B have any bearing on this case?

[00:02:42] Speaker 03:
Excellent question.

[00:02:44] Speaker 03:
Because the sentence before that starts out with that Mr. Varys was a combat infantry commander in Korea, where he

[00:02:55] Speaker 03:
begins his statement as to the cause of his hearing loss by saying that he was in the vicinity of artillery, recoilless rifles and tanks while in combat.

[00:03:09] Speaker 04:
He then goes on because he's a lay person and he... So you think I'm just really over-reading the assertion here about the real hearing problem having been caused by the, was it Kansas?

[00:03:26] Speaker 04:
Anyway, the rifle training that he did after he returned from Korea.

[00:03:31] Speaker 04:
He's not really limiting it to that.

[00:03:35] Speaker 03:
It's a troublesome statement by the veteran.

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I don't think, unless I'm misremembering, I don't think that the government or the board or others relied on this, but it was striking to me.

[00:03:52] Speaker 03:
They did not, and it's striking to me as well.

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record is what the claimant says.

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I believe that when you look at the totality of the veteran statement, he's saying that while I was in service, I was exposed to a lot of loud noises.

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And here are examples of it.

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I was in combat in Korea for a year.

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I was near large tank cannons when they went off.

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in the vicinity of recoilless rifles and so on.

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He then goes on to say, and if that wasn't enough, when I came back, I was training guys on recoilless rifles and I was also exposed to sound.

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But this record doesn't have the problem of the VA saying that the claimant, the appellant, excuse me,

[00:04:52] Speaker 03:
Ms.

[00:04:53] Speaker 03:
Ferris is not entitled to the application of 1154B.

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They're just not saying that the application of 1154B gets into deafness.

[00:05:06] Speaker 03:
It only gets into his auditory trauma.

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Now, in this court's jurisprudence, there's a lot of different language going back and forth between the issue of auditory trauma

[00:05:22] Speaker 03:
something that would cause the person to lose their hearing.

[00:05:26] Speaker 03:
And the conclusion from that, that the person lost hearing, one would assume from reading your jurisprudence and from general experience that that's because everybody that experiences an auditory trauma doesn't necessarily lose their hearing.

[00:05:42] Speaker 04:
I took it that there were actually three things that were part of our jurisprudence.

[00:05:50] Speaker 04:
One is

[00:05:51] Speaker 04:
the event, the auditory trauma, loud, loud noise.

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The second is injury right then and there that might have been caused by that in combat, so the in combat injury.

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And then the third is the injury on the basis of which the current claim of disability is being made.

[00:06:12] Speaker 04:
And I think it's fair that our cases have said kind of 1154

[00:06:19] Speaker 04:
B applies to both of the first two, but not to the connection from the in-combat injury suffered as a result of the in-combat event to the later injury on the basis of which the claim of disability is made.

[00:06:39] Speaker 04:
Nexus, I guess, is often used to describe that.

[00:06:44] Speaker 04:
And that's not what 1154B covers.

[00:06:48] Speaker 03:
It's a yes and no answer.

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You don't seem to be entirely consistent with how 1154 is applied, and that's why I'm here.

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I think that what you've actually said with regard to 1154 is that we normally look at veterans cases in terms of a three-step sequential analysis

[00:07:16] Speaker 03:
of which that third step is where veterans run into the most problem of establishing a nexus between what happens to them in service and the claim for disability under the system.

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But you've also said that there seems to be a separate and distinct three-step analysis with regard to 1154 claims, which require a

[00:07:45] Speaker 03:
different analysis with regard to what one might call a burden of proof situation and that the veteran can establish the injury and through their own testimony the loss of hearing and then the VA under the shifted burden has to with clear and convincing evidence show that this is not correct.

[00:08:14] Speaker 03:
And it doesn't seem that the Veterans Court follows that line of cases with regard to hearing because otherwise I wouldn't be here.

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So we believe that Mr. DeVries is capable of establishing to his own testimony that he was exposed in combat to loud noise, that

[00:08:43] Speaker 03:
He was told rather than he observed to himself that he had hearing loss, that there's nothing else that causes this hearing loss and therefore he can link his service time in the Korean War to his employment and examination that he talks about in the early 1960s where his employer said you need to get your hearing checked

[00:09:14] Speaker 03:
and they checked his hearing, and he had hearing loss.

[00:09:17] Speaker 00:
Well, Counsel, let me interrupt you.

[00:09:20] Speaker 00:
I think there's no question that there's hearing loss, but there's something curious about the record, and I wonder if you can straighten it out.

[00:09:29] Speaker 00:
Throughout, it seems that every professional, every audiology professional who was asked for an official opinion said or did not say

[00:09:44] Speaker 00:
that the relationship, the nexus was possible, instead consistently said that it would be speculative.

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Now, that gap between refusing any sort of opinion, including, I gather, one that might say that the relationship is certainly possible based on a lot of undisputed facts,

[00:10:11] Speaker 00:
It looked to me as if this was something that the court, the board, the court gave weight, dispositive weight to, that there was no one, no professional who said that it was at least as likely as not, if not more likely than not.

[00:10:34] Speaker 00:
Is there a gap in the record here as it was produced that may have

[00:10:42] Speaker 00:
based on what you were just telling us, distorted the result?

[00:10:52] Speaker 03:
I don't believe there's a gap in the record in the sense that there's out there in the world something that would verify Mr. Varie's position.

[00:11:03] Speaker 00:
But it wasn't verified.

[00:11:04] Speaker 00:
I mean, this is really the question.

[00:11:06] Speaker 00:
The professional said it was speculative, leaving the impression that it was

[00:11:12] Speaker 00:
an overreach to suggest the relationship?

[00:11:18] Speaker 03:
I don't believe that's the only way one could look at this.

[00:11:22] Speaker 03:
This may be because I'm getting older.

[00:11:24] Speaker 00:
Anyway, it came out that way.

[00:11:28] Speaker 03:
What the record seems to show is that when the hearing professionals were asked contemporaneously to his service within the first 10 years about his hearing loss,

[00:11:43] Speaker 03:
They were only asked whether or not he was experiencing hearing loss, which was confirmed that he was, so that the people around him that said that he was not hearing them and that he had a problem were then reinforced and could tell the veteran that he needed to deal with the issue of his hearing loss.

[00:12:04] Speaker 03:
Now that's in the early 1960s.

[00:12:08] Speaker 03:
No one asked at that time, because it was not a claim for veteran's benefit,

[00:12:13] Speaker 03:
for any causal link.

[00:12:15] Speaker 03:
They didn't ask whether people just in their early 30s have severe hearing loss or whether it could be related to being in combat in Korea or anything like that.

[00:12:27] Speaker 03:
So what we have is the nexus between the service time and the early in life hearing loss.

[00:12:39] Speaker 03:
Then things move from

[00:12:42] Speaker 03:
1952-ish in Korea to the late early 2000s at various VA facilities for testing.

[00:12:54] Speaker 03:
Some 50 years later, after the injury to Mr. Berry's hearing, audiologists say repeatedly in the record, he's an old guy.

[00:13:07] Speaker 03:
We can't tell you why he can't hear.

[00:13:10] Speaker 03:
And if there wasn't the intervening hearing examination in the 1960s, this wouldn't be much of a claim because when you wait too long, it is quite possible that no one can associate what's happening with you now with something that happened to you 50 years ago.

[00:13:33] Speaker 03:
But that's not this record and that's not what the VA did with this case.

[00:13:39] Speaker 03:
So what we can

[00:13:40] Speaker 03:
actually see from this record is that 50 years later, no professional person is willing to speculate that there's a relationship between the autistic trauma of combat and the hearing loss of a man who by then was in his 70s.

[00:14:04] Speaker 03:
And so we're just saying, we've got to speculate.

[00:14:06] Speaker 03:
We can't tell you why he currently has hearing loss

[00:14:11] Speaker 03:
because of the intervening time period.

[00:14:17] Speaker 02:
Thank you, Your Honor.

[00:14:33] Speaker 01:
May it please the Court.

[00:14:36] Speaker 01:
As an initial matter, Mr. Various,

[00:14:39] Speaker 01:
did not contest the board's application of 1154B at the Veterans Court.

[00:14:44] Speaker 01:
And the Veterans Court, accordingly, did not interpret 1154B in its decision.

[00:14:50] Speaker 01:
Can I just ask you about 1154B?

[00:14:51] Speaker 02:
I mean, this may be the longest sentence in record, but 1154B, it appears it will take probably a brief.

[00:15:00] Speaker 02:
The sentence goes on forever, and it doesn't get even to a comma until line seven or eight.

[00:15:06] Speaker 02:
So what is the government's position

[00:15:08] Speaker 02:
What this comes into, sort of going back to Judge Taranto's point about the three parts in this analysis, and where the 1154, how 1154 fits in.

[00:15:19] Speaker 01:
Well, I would say consistent with this court's precedent, the government's position is that 1154B lessens the evidentiary burden upon a veteran to establish a veteran who is engaged in combat, to establish that he has an injury or disease that was incurred in service, it does not establish

[00:15:38] Speaker 01:
current condition or the nexus.

[00:15:42] Speaker 01:
That's consistent with this court statement in Davidson, where Davidson specifically looked at the nexus question and held that 1154B did not apply to nexus, rejected that challenge, and cited approvingly, quoting the veteran's court's decision in Calusa versus Brown, quote, 1154B deals with questions of whether a particular disease or injury was incurred or aggravated in service

[00:16:06] Speaker 01:
That is, what happened then, not the question of either current disability or nexus to service.

[00:16:13] Speaker 02:
And do you understand the other side's argument as being contrary to that?

[00:16:18] Speaker 01:
Do I understand their argument as being?

[00:16:19] Speaker 01:
Yes, I do.

[00:16:20] Speaker 01:
I think it is focused on nexus and assuming that this court had jurisdiction to hear, assuming that it had been raised by the Veterans Court, which it was not, because we would concede, under foresheet, this court would have jurisdiction over obviously

[00:16:36] Speaker 01:
disagreements of interpretation of regulation or statute and interpretation by the Veterans Court of a regulation or statute.

[00:16:44] Speaker 01:
That's not an issue here because 1154B isn't even mentioned.

[00:16:47] Speaker 01:
But what we do have is statutes they don't mention.

[00:16:50] Speaker 04:
Can I just double check on something?

[00:16:52] Speaker 04:
If they had made the legal argument to the Veterans Court and the Veterans Court had said nothing about it but had the Veterans Court

[00:17:06] Speaker 04:
accepted it, the result would have been different.

[00:17:09] Speaker 04:
We can review that legal question.

[00:17:13] Speaker 01:
Well you can under Foreshee if the decision would have been altered by adopting the position urged and I would say in this case it would be altered by adopting the position urged and that 1154B would apply.

[00:17:26] Speaker 04:
So the fact that the Veterans Court didn't

[00:17:28] Speaker 04:
say anything about 1154 doesn't end the inquiry, one also has to look and see what he argued to the Veterans Court.

[00:17:34] Speaker 01:
What he argued to the Veterans Court in order to determine whether or not you have jurisdiction, that's correct.

[00:17:38] Speaker 01:
And that's under this Court's N. Bonk Opinion Enforcement.

[00:17:42] Speaker 01:
But presuming, again, assuming that this Court did have jurisdiction, in the first instance, we would note that this Court's precedent would have 1154 be not applied to

[00:17:57] Speaker 01:
to Nexus Prong at argument today, although Jandro, Buchanan, Davidson are not cited in the petitioner's brief.

[00:18:09] Speaker 01:
He argues that this is a question of lay evidence.

[00:18:12] Speaker 01:
It's clear looking at the Veterans Court's opinion that they were both aware and looking at Jandro and Davidson and applying the facts of this case to this court's requirements in Jandro versus Davidson.

[00:18:28] Speaker 01:
But we will note that the exact language in Davidson, it says, we have consistently held that lay evidence can be competent, and it's quoting Gendro, to establish a diagnosis of a condition when, and the one he seems to focus on, one, a lay person is competent to identify the medical condition.

[00:18:47] Speaker 01:
Now, that means, as this court has said in King, the Veterans Court and the board can't categorically say, well, it's lay evidence, so it can't count at all.

[00:18:57] Speaker 01:
But they have to go to the question, is the layperson competent to identify the medical condition?

[00:19:02] Speaker 01:
Certain conditions may not, and there are other, they do need to consider symptoms.

[00:19:07] Speaker 01:
There's other things they do need to consider.

[00:19:09] Speaker 01:
It's clear the board considered, you know, statements of symptoms and statements of the 1960 diagnosis.

[00:19:15] Speaker 01:
All of those were considered by the board.

[00:19:19] Speaker 01:
But in terms of identifying the medical condition, it's important to think of, imagine a condition where a layperson

[00:19:27] Speaker 01:
comes in and says, you know, my red blood cell count is under 4,000, or under 4 million.

[00:19:34] Speaker 01:
And he would not be competent generally to provide that information.

[00:19:39] Speaker 01:
He would be competent to say, well, I went to a doctor, and the doctor said my red blood cell count is this.

[00:19:45] Speaker 01:
Or he might be competent to give symptoms which would be consistent with a little red blood cell count, which might ultimately get you to next sort of determination of

[00:19:56] Speaker 01:
compensation.

[00:19:58] Speaker 01:
But it is perfectly reasonable in this case for the Veterans Court to note that they haven't held that tone threshold perceptions such as are found at page 55 through 57 of the petitioner's appendix are not subject generally to lay observation.

[00:20:17] Speaker 01:
So unless there are any further questions?

[00:20:20] Speaker 00:
Well, I do have this matter perceived.

[00:20:23] Speaker 00:
We have the court says and the board says

[00:20:27] Speaker 00:
But if the evidence is an equipoise or unclear, that the doubt always is resolved in favor of the veteran.

[00:20:37] Speaker 00:
So here we have professionals who don't say either way.

[00:20:42] Speaker 00:
They don't say it's more likely than not that there was no causal relationship.

[00:20:48] Speaker 00:
They just say it would be speculative either way.

[00:20:52] Speaker 00:
So, and the lay evidence perhaps comes in the same

[00:20:56] Speaker 00:
category.

[00:20:58] Speaker 00:
The nature of the disability is something which, according to the record, is known to increase with time.

[00:21:09] Speaker 00:
So where is that principle of if you can't decide, if it's an equipoise, if it's balanced, if there's evidence on all sides, it's resolved in favor of the veteran?

[00:21:23] Speaker 01:
Well, Your Honor, here they don't find the evidence in equipoise.

[00:21:27] Speaker 01:
There are several early examinations in which the examiners say it's speculative.

[00:21:33] Speaker 01:
But in 2012, we do have an examination in which the examiner looking at the specific conditions determines that it is less likely that it is the result of the alleged acoustic trauma.

[00:21:46] Speaker 01:
And in that particular case, they focus upon the nature of the hearing loss, it being a sensorineural type of hearing loss, which is basically how the inner eardrum is

[00:21:57] Speaker 01:
conveying information to the brain.

[00:21:59] Speaker 01:
And they note that that's generally not caused by acoustic trauma.

[00:22:02] Speaker 01:
They note the nature of his hearing loss is progressive.

[00:22:04] Speaker 01:
And progressive hearing loss, again, would not be normally connected to the type of injury that he alleges.

[00:22:11] Speaker 01:
So we actually do have an opinion here in 2012 that doesn't say, look, I'd only be able to speculate.

[00:22:18] Speaker 00:
I don't get it.

[00:22:19] Speaker 00:
And actually, that's an opinion going that way.

[00:22:21] Speaker 00:
There's also a lot of undisputed evidence about exposure to prolonged exposure

[00:22:27] Speaker 00:
to very loud noises, and so on, on the other side.

[00:22:31] Speaker 00:
I mean, where is the balance of all of this?

[00:22:34] Speaker 00:
And then we have several other professionals who don't take a position that it's unlikely that there's a relationship.

[00:22:44] Speaker 01:
Your Honor, one, I think a lot of that goes to the weighing of the evidence.

[00:22:47] Speaker 01:
And again, I do think the 2012 report here is critical.

[00:22:51] Speaker 01:
The number of medical professionals that don't give an opinion in this particular matter, that don't say it's speculative,

[00:22:57] Speaker 01:
If we struck the 2012 opinion, I think whether the evidence was an acquittal might be a viable issue.

[00:23:06] Speaker 01:
It might be a good question there about things.

[00:23:10] Speaker 01:
But that opinion, when it ultimately was offered, does clearly find, looking at all of the previous medical reports, looking at all of the evidence, clearly finds that it is less likely than not that this is the result of the alleged acoustic trauma, the alleged injury.

[00:23:26] Speaker 01:
So I do think that that report is dispositive here and ultimately resolve this case and it's clear the board relied very heavily upon that report.

[00:23:37] Speaker 04:
I know that this is the July 2012 report and I remember the less likely as not phrase from the report.

[00:23:48] Speaker 01:
I believe that's the precise language.

[00:23:50] Speaker 01:
I don't have it right here on my notes.

[00:23:52] Speaker 04:
I'm just looking in the board opinion whether the board

[00:23:57] Speaker 04:
quoted that language or specifically found the less likely than not proposition as opposed to?

[00:24:06] Speaker 01:
I would have to find the exact page, but I'm certain they did.

[00:24:12] Speaker 01:
They found the July 2012 medical report highly probative based upon review, how to review the documented medical literature.

[00:24:27] Speaker 01:
And there are no contrary competent medical opinions of record.

[00:24:34] Speaker 01:
At the end, I do believe the board also does, you know, say the preponderance of the evidence is against entitlement to service connection.

[00:24:41] Speaker 01:
So I do think in terms of weighing the evidence, they're not finding this a case where the evidence is equipoised and they need to determine if they rely very heavily upon, you know, that particular report.

[00:24:51] Speaker 01:
They also note, of course, the lapse in time and a number of other facts.

[00:24:54] Speaker 01:
But, you know, I do think that report is extremely significant in the board's opinion on how to treat this case and lay the evidence.

[00:25:05] Speaker 03:
Thank you, Your Honor.

[00:25:12] Speaker 03:
Incredibly briefly, if you review the 2012

[00:25:21] Speaker 03:
report from the audiologist, it is nothing but speculation.

[00:25:25] Speaker 03:
The person says, well, this guy had lumps and measles when he was a kid and that can cause hearing loss.

[00:25:30] Speaker 03:
And he had his tonsils out when he was a kid and that can cause hearing loss.

[00:25:33] Speaker 03:
He has all these things in his life that could cause hearing loss.

[00:25:36] Speaker 03:
So it's less likely that it was because of his combat exposure to loud noise.

[00:25:43] Speaker 03:
It's not a great example

[00:25:49] Speaker 03:
of concise medical opinion based on objective testing or anything even vaguely similar to that.

[00:25:57] Speaker 03:
Just briefly, because you've listened to me for a while, there's a great deal of difference between a lay person saying, I looked at my blood work and this is what's wrong with me, and a lay person saying, when people talk to me, I have to put my hand up to my ear because I can't hear them.

[00:26:19] Speaker 03:
Evidence 101 when we were all in school, they called you lay people who are in fact capable of talking about things that are within the experience of everyone.

[00:26:29] Speaker 03:
A lay person can testify that the car was going very fast down the road.

[00:26:35] Speaker 03:
A veteran, a lay person can testify that when I take my glasses off, I can't see the panel.

[00:26:42] Speaker 03:
But when I put them on, you're back again.

[00:26:46] Speaker 03:
And a lay person can tell you

[00:26:49] Speaker 03:
that people tell me that I can't hear and I'm a pain to talk to because I don't pick up the information.

[00:27:01] Speaker 03:
In terms of your jurisprudence, I think that these vows of Shinneki helps Mr. Berry.

[00:27:10] Speaker 03:
It doesn't hurt him because it says that the 1154 presumption

[00:27:18] Speaker 03:
stays with the veteran.

[00:27:20] Speaker 03:
It is not a soap bubble presumption that once you accept that the person can testify to the combat trauma, there's no longer a presumption.

[00:27:31] Speaker 03:
It says the presumption sticks with the veteran, including that there is a relationship or nexus.

[00:27:37] Speaker 03:
And that's not unusual for this court.

[00:27:41] Speaker 03:
Way back in Colette versus Brown.

[00:27:49] Speaker 02:
That was the final point.

[00:27:52] Speaker 03:
I thank you all for your patience.