[00:00:00] Speaker 01:
059 Brescia versus McDonald.

[00:00:31] Speaker 01:
Mr. Kinman?

[00:00:38] Speaker 01:
Before you begin, Mr. Kinman's time, as sometimes unfortunately happens, we noticed that you have a lot of the veterans' very personal, private data on a number of the forms that you have not redacted it from in the joint appendix, including his Social Security number.

[00:00:57] Speaker 01:
There are at least almost 10 pages in which you have this information and you should have redacted it.

[00:01:03] Speaker 01:
It's my understanding our clerk's office has contacted you or tried to on multiple occasions about this but been unsuccessful in getting a hold of you.

[00:01:10] Speaker 01:
Would you like to submit a redacted version of the appendix in electronic form so that we don't have the veteran's private social security number on our webpage?

[00:01:23] Speaker 01:
If you want, I can give you a list of the page numbers that I saw it on, if that would help you.

[00:01:28] Speaker 05:
I can go through it again, Your Honors.

[00:01:29] Speaker 05:
I apologize for that.

[00:01:30] Speaker 01:
Okay.

[00:01:31] Speaker 01:
So please do that.

[00:01:32] Speaker 01:
And what day is it?

[00:01:33] Speaker 01:
Monday.

[00:01:34] Speaker 01:
Why don't you, can you have it to us no later than Friday?

[00:01:37] Speaker 01:
So that, because we have an obligation to make things public.

[00:01:40] Speaker 01:
And so we'll keep it off the website until then.

[00:01:43] Speaker 01:
And as soon as you submit a redacted version, we'll post that instead.

[00:01:47] Speaker 05:
Again, I will stop on the clerk's office as well.

[00:01:49] Speaker 05:
Very good.

[00:01:50] Speaker 05:
Thank you.

[00:01:51] Speaker 05:
May it please the court.

[00:01:52] Speaker 05:
Again, my name is Max Kinman, and I represent the appellant, David Brescia.

[00:01:56] Speaker 05:
There's two issues here before the court that I'm asking you to decide.

[00:02:01] Speaker 05:
The first issue is whether the holding of Buchanan v. Nicholson and the accompanying statutes and regulations applied as lay statements in the context of a claim for post-traumatic stress disorder, specifically whether lay statements and lay evidence can be submitted

[00:02:19] Speaker 05:
to substantiate a claim and claim stressors.

[00:02:24] Speaker 00:
I guess I don't really even understand your citation to that case, because here the board didn't say they weren't qualified to testify.

[00:02:32] Speaker 00:
The board simply looked at the nature of the testimony and found that it didn't really support the position.

[00:02:39] Speaker 00:
For instance, you've got somebody who says, well, I heard from someone else that something else occurred.

[00:02:45] Speaker 00:
And the board just said, that's just not enough.

[00:02:47] Speaker 00:
He never said the mere fact that it's a lay person testifying means it's not enough.

[00:02:51] Speaker 05:
Well, the issue here is that the board and the Veterans Court found that the lay statements alone were not enough to substantiate the claim.

[00:03:00] Speaker 03:
Well, they didn't believe them, as Judge O'Malley says.

[00:03:04] Speaker 03:
They looked at it and said, hearsay.

[00:03:07] Speaker 05:
But they did not believe them solely because there was no

[00:03:11] Speaker 05:
documented medical evidence of the record, which is the exact same holding of the cannon.

[00:03:16] Speaker 00:
Well, it wasn't the medical part they didn't believe.

[00:03:18] Speaker 00:
It was the service connection that they weren't buying.

[00:03:21] Speaker 00:
In other words, they just felt that it did not support the notion that Mr. Brescia was actually exposed to these incidents.

[00:03:32] Speaker 05:
Well, I would argue that the boards holding and the courts holding was that the lay statements lacked credibility.

[00:03:39] Speaker 05:
And they lacked credibility because there was no in-service documentation.

[00:03:43] Speaker 01:
On page A10 and 11 of the board's opinion, it says, quote, little, if any, probative weight as the statements do not provide sufficient information to corroborate that Mr. Brescia experienced the claim stressors.

[00:03:55] Speaker 01:
I mean, the whole problem is there's nobody to document, whether it be in writing or in oral testimony, that he witnessed icicles falling down and killing people, bulldozers going over tents and destroying people.

[00:04:07] Speaker 01:
There's no question that the man has PTSD.

[00:04:09] Speaker 01:
There's no question he had military service.

[00:04:11] Speaker 01:
The question is they're unable to document any of these events even occurring, much less that he witnessed these events, because simply being present at a base where something happened that you didn't witness wouldn't give rise to a stressor.

[00:04:28] Speaker 01:
But they can't even establish there's no evidence that these events even occurred.

[00:04:31] Speaker 01:
There aren't military medical records of the individuals who were harmed by the falling icicles or the bulldozer.

[00:04:37] Speaker 01:
So there's nothing.

[00:04:38] Speaker 01:
And then those witnesses that came along, they just said, one of them said, oh, yeah, I heard that stuff happened too, but also didn't have any firsthand knowledge of either the events or whether Mr. Brescia was present there.

[00:04:50] Speaker 00:
So maybe it was just an unfortunate use of the word document when they said that they can't document it.

[00:04:56] Speaker 00:
But they were clearly looking at the lay testimony.

[00:04:59] Speaker 05:
Well, I think they were looking at the lay testimony, but they completely disregarded three separate independent buddy statements from individuals who served in the same unit.

[00:05:07] Speaker 03:
But they didn't disregard them.

[00:05:09] Speaker 03:
They paid attention to them, and they said, there's nothing in the history, not medical history, there's nothing in the history that indicates this event occurred.

[00:05:21] Speaker 05:
Which is the same thing as denying that those lay statements exist.

[00:05:27] Speaker 05:
That is the same thing as downgrading those lay statements.

[00:05:30] Speaker 05:
If you're going to say that lay statements solely don't have credibility.

[00:05:33] Speaker 03:
Look, if somebody says, here, here's a hearsay statement, and the board looks at it and says, well, let's see if we can find anything that supports this.

[00:05:46] Speaker 03:
That doesn't mean that they're downgrading.

[00:05:49] Speaker 03:
It means they're saying, well, this is inherently unbelievable, but maybe we can find something that shows that it was true.

[00:05:57] Speaker 03:
hearsay is always inherently unbelievable.

[00:06:00] Speaker 05:
But in this context, we're not dealing with hearsay statements.

[00:06:03] Speaker 03:
Well, you are dealing with some hearsay statements.

[00:06:06] Speaker 03:
When somebody says, I heard that something occurred from someone else, isn't that hearsay?

[00:06:13] Speaker 05:
In this context, there were icicles that fell and impaled two fellow soldiers.

[00:06:17] Speaker 05:
The only people that could witness that were the two soldiers that passed away.

[00:06:21] Speaker 01:
No, that's not true.

[00:06:21] Speaker 01:
There could be people who witnessed the bodies.

[00:06:25] Speaker 01:
There could be people who witnessed

[00:06:27] Speaker 01:
Um, you know, them being treated medically, there could, you know, there could be all kinds of things.

[00:06:31] Speaker 01:
And one of like, so let's just take these buddy statements.

[00:06:33] Speaker 01:
One of them, the board said, we can't even find any evidence to corroborate that DD, I don't know.

[00:06:39] Speaker 01:
I assume these are initials, the gentleman ever even served with the appellant at this particular location.

[00:06:46] Speaker 01:
So this is the guy that remembers he heard something about that happening, didn't witness it.

[00:06:50] Speaker 01:
And they couldn't even find evidence that he ever served with this individual at that particular location.

[00:06:57] Speaker 05:
Well, that would segue into the second argument, being that they didn't request the proper records in violation of the remand orders.

[00:07:04] Speaker 05:
For DD, they specifically requested in the remand orders, OK, we have a statement from DD.

[00:07:09] Speaker 05:
Let's determine whether or not he served with the veteran.

[00:07:12] Speaker 05:
Let's determine whether or not he served with the appellant.

[00:07:14] Speaker 05:
They asked the record center.

[00:07:17] Speaker 05:
They asked the MPRC.

[00:07:20] Speaker 05:
But unfortunately, in their request, they only asked whether or not DD served with the appellant in company B.

[00:07:27] Speaker 05:
And where they got that information from, who knows?

[00:07:31] Speaker 05:
And the board, and then the Veterans Court finds that, well, that's complying with the remand orders.

[00:07:35] Speaker 05:
And now the board, you're okay to downgrade this.

[00:07:38] Speaker 01:
And I can understand why you're expressing some dissatisfaction with that.

[00:07:42] Speaker 01:
And I understand your argument completely.

[00:07:45] Speaker 01:
And if we had jurisdiction over things like that, that would be a very compelling statement.

[00:07:50] Speaker 01:
The problem is we don't.

[00:07:51] Speaker 01:
That's whether or not they comply with the remand order is a question of fact.

[00:07:55] Speaker 01:
And whether or not they asked for

[00:07:57] Speaker 01:
service records for the whole company versus a particular platoon, I know I'm not getting these words right.

[00:08:01] Speaker 01:
Just bear with me.

[00:08:02] Speaker 01:
But, you know, that's all factual.

[00:08:04] Speaker 01:
And, you know, Congress didn't see fit to give us the authority because you could be 100% right and probably are about everything you're saying right now.

[00:08:11] Speaker 01:
But I don't see how I have the authority to give you any relief based on that particular failure of the VA.

[00:08:17] Speaker 05:
A factual question is, you know, how much did the court comply with the orders?

[00:08:24] Speaker 05:
This is not a factual question here.

[00:08:26] Speaker 05:
The orders were clear.

[00:08:27] Speaker 05:
Determine whether or not Dee Dee served with the appellant.

[00:08:29] Speaker 00:
Well, you agree that Brush was served in Company B?

[00:08:33] Speaker 05:
Brush was served in Company B, yes, certainly.

[00:08:34] Speaker 00:
Okay.

[00:08:35] Speaker 00:
So, I mean, in Dee Dee's own statement, he says, I think I might remember you.

[00:08:39] Speaker 05:
Yes.

[00:08:40] Speaker 00:
But, I mean, so he obviously doesn't even remember serving with the appellant.

[00:08:45] Speaker 05:
Right.

[00:08:45] Speaker 05:
But they served at the same time.

[00:08:46] Speaker 05:
The point of Dee Dee's statement is that he served at the same time, and he remembered those exact same incidents occurring.

[00:08:51] Speaker 05:
to bolster Mr. Bresher's statements.

[00:08:53] Speaker 05:
He doesn't need to specifically remember Mr. Bresher.

[00:08:55] Speaker 00:
There's no dispute whether or not... Did he remember the incidents as occurring or did he remember hearing about something that might have occurred?

[00:09:01] Speaker 05:
Either way, it's the same thing.

[00:09:02] Speaker 05:
That bolsters whether or not the incidents actually happened or not.

[00:09:07] Speaker 05:
If you have a soldier who served in a remote base up in Alaska and remembers incidents of fellow service members being harmed or killed, that is

[00:09:18] Speaker 05:
That is some sort of positive factual statement.

[00:09:21] Speaker 03:
There are a lot of things I heard in the Army that I couldn't say actually occurred.

[00:09:27] Speaker 05:
But if you have three separate statements bolstering your claim, I think.

[00:09:31] Speaker 00:
But Mr. Brescia himself never even says he witnessed any of these things.

[00:09:34] Speaker 00:
He said he walked past the Icicle Place later, and it creeped him out.

[00:09:40] Speaker 00:
But he doesn't say that he was in the zone to witness these things, correct?

[00:09:47] Speaker 05:
Certainly.

[00:09:47] Speaker 05:
And the issue here is not whether him walking past the icicles just before they fell is enough to qualify for a claim for post-traumatic stress disorder.

[00:09:59] Speaker 05:
We can't even get to that level if the board and the court says, well, these events didn't happen, which is basically what is happening here.

[00:10:08] Speaker 05:
The board says, we're going to completely downgrade these stressors because there's no evidence in the record that they occurred.

[00:10:15] Speaker 05:
But there is evidence in the record that they occurred.

[00:10:17] Speaker 05:
You have three independent lay witnesses.

[00:10:20] Speaker 05:
Now, they didn't have firsthand knowledge.

[00:10:22] Speaker 05:
They weren't one of the service members that were killed.

[00:10:24] Speaker 05:
But they did serve at this base.

[00:10:26] Speaker 05:
They did hear about these incidents.

[00:10:28] Speaker 01:
Well, with one of them, we don't know if he served at the base.

[00:10:30] Speaker 01:
There isn't evidence of that.

[00:10:32] Speaker 05:
And then going back, Judge Morton, to your point, what can we do if there's a remand that's not complied with?

[00:10:39] Speaker 05:
I would assert and strongly assert that that is a clear due process violation.

[00:10:45] Speaker 05:
an administrative agency from the Board of Veterans' Appeals, and that board orders the VA to do something, and those orders are just simply ignored, simply not complied with, and then later on, the case is adjudicated.

[00:10:57] Speaker 05:
How is that not a due process violation?

[00:10:58] Speaker 01:
But that's not, number one, that's not actually what happened here.

[00:11:02] Speaker 01:
They were ordered to ascertain whether DD served with the veteran at issue, and they went back and performed a too narrow

[00:11:12] Speaker 01:
search and concluded he didn't serve with them.

[00:11:14] Speaker 01:
There's no evidence he was serving with them.

[00:11:16] Speaker 01:
And your argument is factually that's because you didn't look broadly enough.

[00:11:19] Speaker 01:
You should have looked at this whole group and you didn't.

[00:11:22] Speaker 01:
So I mean, a due process violation is a really big deal.

[00:11:26] Speaker 01:
It's the Constitution.

[00:11:27] Speaker 01:
It's the Constitution.

[00:11:28] Speaker 01:
So they did comply with the Remand Order.

[00:11:31] Speaker 01:
They just didn't comply perfectly.

[00:11:33] Speaker 05:
Well, we're not asking for them to look for the entire records from

[00:11:38] Speaker 05:
whatever it was, 1969 to 1971 for every individual who served in the military, they were simply ordered to determine whether or not D.D.

[00:11:46] Speaker 05:
served on that same base as the appellate.

[00:11:48] Speaker 05:
That's not asking too much.

[00:11:50] Speaker 05:
And if they disregard that and they only search for Company B because they only want to search Company B, I don't, you know, unless they completely just disregard the orders, I don't know what a greater due process violation could be when there's an order from the board

[00:12:06] Speaker 05:
specifically saying determine whether or not DD served with the appellant.

[00:12:10] Speaker 05:
That was the orders.

[00:12:11] Speaker 05:
And they frankly just don't do that.

[00:12:13] Speaker 05:
The VA just ignores it.

[00:12:14] Speaker 01:
Well, we're into your rebuttal time.

[00:12:15] Speaker 01:
Why don't we give the government a chance?

[00:12:17] Speaker 01:
Thank you.

[00:12:18] Speaker 01:
Mr. Yale.

[00:12:32] Speaker 02:
May it please the court, as we lay down our brief,

[00:12:35] Speaker 02:
Mr. Brescia has failed to identify any issue with the Veterans Court decision that falls within the jurisdiction of this court.

[00:12:41] Speaker 01:
Why don't you start with the due process claim that he ended with?

[00:12:45] Speaker 01:
Why isn't it a due process violation if there's a remand order that says, decide whether these two men serve together?

[00:12:52] Speaker 02:
Well, certainly, Your Honor.

[00:12:54] Speaker 02:
Mr. Brescia fails to discuss the Diamond v. Precipe case that we mentioned in our brief, which essentially says that

[00:13:04] Speaker 02:
complying with a remand order, it involves making factual determinations, or at the very least, applying law to the facts of the case.

[00:13:12] Speaker 01:
Yes, but when we have a constitutional issue, we're allowed to dig into the facts, correct?

[00:13:17] Speaker 01:
Under that jurisdiction.

[00:13:18] Speaker 01:
Sure.

[00:13:18] Speaker 02:
Isn't that right?

[00:13:19] Speaker 02:
That is possible, but also just labeling something a due process issue doesn't actually make it a due process issue.

[00:13:26] Speaker 01:
So why is this not a due process issue?

[00:13:28] Speaker 02:
Well, what this has to do with is actually complying with the remand order,

[00:13:33] Speaker 02:
and which involves a number of factual determinations that were made by the board.

[00:13:40] Speaker 02:
Nothing has been pointed out as to why any sort of that process would ever reach the level of a due process issue.

[00:13:51] Speaker 00:
How many companies were on the base at the time?

[00:13:54] Speaker 02:
How many companies were on the base at the time?

[00:13:57] Speaker 02:
Well, I don't know specifically that information.

[00:14:03] Speaker 02:
We, from the documents, it's apparent that there were at least two battalions, which I would assume could be anywhere from 500 to 1,000 soldiers each battalion.

[00:14:17] Speaker 02:
So potentially as many as 2,000 soldiers.

[00:14:20] Speaker 02:
But the record doesn't reflect exactly how many soldiers were serving at Fort Wainwright during that time.

[00:14:26] Speaker 00:
OK, so but Mr. Bresch had never argued that these incidents were isolated to his company, did he?

[00:14:34] Speaker 00:
He said they occurred at the base.

[00:14:37] Speaker 02:
Well, yes, Your Honor.

[00:14:38] Speaker 02:
He said they occurred at the base.

[00:14:40] Speaker 02:
But, you know, I think if you actually look at the remand order, which is at JA266, what it says is, attempt to verify through official sources whether D.D.

[00:14:53] Speaker 02:
served with the veteran at Fort Wainwright in Alaska in 1970 with the headquarters and headquarters company 808th Engineer Battalion.

[00:15:03] Speaker 02:
It's saying to attempt to make that verification.

[00:15:08] Speaker 02:
Then, at JA-268, we have the requests that were actually made.

[00:15:14] Speaker 02:
One of those requests at the bottom of JA-268 is, please attempt to verify if the Veterans Unit reported the deaths of two soldiers due to falling icicles on March 1, 1970.

[00:15:26] Speaker 02:
Also, please attempt to verify if a

[00:15:29] Speaker 02:
I will call him DD, was serving with the 808th Engineer Battalion at Fort Wainwright in Fairbanks, Alaska.

[00:15:35] Speaker 02:
So in this situation where they're making the request, there is no limitation to Company B. The Company B limitation comes later with regards to certain morning reports that were suggested by JSRRC to be made.

[00:15:50] Speaker 02:
So certainly there were at least general requests made by the VA to JSRRC to try to

[00:15:59] Speaker 02:
determine whether Dee Dee actually served in the entire battalion, served at Fort Wainwright.

[00:16:07] Speaker 02:
Again, back to the question about the due process violation, I mean, what we have is essentially a question as to whether or not there was compliance with this remand order.

[00:16:23] Speaker 02:
And Mr. Bresche is not challenging the standard

[00:16:28] Speaker 02:
which would be a legal issue with regards to whether or not substantial compliance was the standard or whether the board said it could be minimal compliance.

[00:16:41] Speaker 02:
Essentially, he's just asking this court to make factual determinations with regards to what exactly the VA did in complying with this remand order.

[00:16:54] Speaker 02:
As we just pointed out, we think if it ever got to that point that the VA did substantially comply.

[00:17:02] Speaker 02:
But as reflected in the Diamond versus Principi case, we certainly do not think that that's an issue that this court has jurisdiction to entertain.

[00:17:13] Speaker 02:
We'd also like to address the issue of the lay testimony.

[00:17:19] Speaker 02:
What the board did was perfectly appropriate.

[00:17:24] Speaker 02:
needs to come.

[00:17:25] Speaker 02:
In order to evaluate a PTSD claim, there needs to be credible evidence.

[00:17:31] Speaker 02:
Certainly the board went through and made credibility findings as to these statements.

[00:17:35] Speaker 02:
It looked at the statement of the veteran PC, which essentially said that he had heard stories, which are certainly hearsay.

[00:17:43] Speaker 02:
And they pointed to that as a reason to downgrade the credibility and probative value of that statement.

[00:17:50] Speaker 02:
That veteran

[00:17:52] Speaker 02:
There's no evidence that he witnessed this event happened.

[00:17:55] Speaker 02:
He heard it second or third hand.

[00:17:59] Speaker 02:
The same is true of the testimony from the veteran, Dee Dee.

[00:18:04] Speaker 02:
There's been a number of efforts made to attempt to determine whether Dee Dee actually served at the time of Mr. Brescia, but those were unsuccessful.

[00:18:16] Speaker 00:
And so we have- Did anybody ask Dee Dee for his

[00:18:20] Speaker 00:
discharge records that might show that?

[00:18:22] Speaker 02:
Well, if we could go back to the remand order at JA-266 to answer your question, under 2 on JA-66, it says, and this is from the board, it says, if insufficient information is a record to verify such, ask the veteran to provide evidence that he and Dee Dee served together in 1970.

[00:18:46] Speaker 02:
The VA reached out to Mr. Brescia asking for that information and it's apparent from the record that Mr. Brescia never responded.

[00:18:57] Speaker 02:
So the VA attempted to reach out to obtain that information from Mr. Brescia who may have some information if he was a buddy as to when he served and additional information.

[00:19:17] Speaker 02:
There are any further questions?

[00:19:23] Speaker 02:
We ask that the court dismiss Mr. Breshear's appeal for lack of jurisdiction.

[00:19:28] Speaker 01:
Thank you, Mr. Mayor, Mr. Klingman.

[00:19:33] Speaker 05:
Thank you, Your Honor.

[00:19:38] Speaker 05:
Back to Harp on the Buchanan issue.

[00:19:40] Speaker 05:
I would point to the joint appendix on page 320.

[00:19:42] Speaker 05:
The board and its decision is clear.

[00:19:46] Speaker 05:
The board states, the veteran filed his claim for PTSD in 2002.

[00:19:49] Speaker 05:
The board finds the veteran's assertions while seeking service connection are simply less persuasive and credible than his service personnel records and the military records, which failed to document the alleged stressor events, as well as the lack of any mental health problems until 2002.

[00:20:09] Speaker 05:
What the board is doing, they're not laying the evidence here.

[00:20:13] Speaker 05:
The board is saying that you have lay evidence.

[00:20:16] Speaker 05:
And that lay evidence is not persuasive simply because there's no documentation in the service medical records to support your claim.

[00:20:26] Speaker 05:
And that is the exact problem that existed in Buchanan.

[00:20:29] Speaker 05:
In Buchanan, this court held that you can't do that.

[00:20:33] Speaker 05:
In Buchanan, the veteran had submitted buddy statements, the exact same type of buddy statements, from friends who served with him that showed that he was experiencing mental health problems while he was in service.

[00:20:44] Speaker 05:
The board in Buchanan

[00:20:46] Speaker 05:
did almost the exact same thing.

[00:20:47] Speaker 05:
They said, well, we're going to disregard those buddy statements because there's nothing in the service medical records.

[00:20:53] Speaker 05:
That's what the board is doing in this case.

[00:20:55] Speaker 05:
They're simply disregarding the lay evidence, and they're not judging its credibility.

[00:20:59] Speaker 05:
They're just simply disregarding it because there's nothing.

[00:21:01] Speaker 00:
Oh, come on.

[00:21:02] Speaker 00:
Let's read the two sentences before the one you quoted.

[00:21:05] Speaker 00:
It says, here, the veterans claim stressors could not be verified.

[00:21:08] Speaker 00:
While the veterans submitted buddy statements, there's no evidence corroborating that DD served with the veteran.

[00:21:13] Speaker 00:
In addition, the statement from VC noted that he recalled hearing stories about the icicle incident and bulldozer incident, but a statement clearly reflects that he did not witness the events or have any first-hand knowledge of them.

[00:21:25] Speaker 00:
Neither statement provided dates or names of the individuals involved, and neither statement establishes that the veteran witnessed the alleged incidents.

[00:21:34] Speaker 00:
I mean, they're not saying that by definition, lay statements can't be enough in the absence of

[00:21:42] Speaker 00:
documentation that might be destroyed.

[00:21:44] Speaker 00:
What they're saying is these lay statements were not enough.

[00:21:47] Speaker 03:
And he says, VC says, I heard stories about, let me read from it, about large falling icicles that killed two men coming out of the Haynes Hall back door one winter.

[00:22:01] Speaker 03:
In other words, it looks to me like he's saying, don't know which winter that was, I just heard stories that that happened one winter.

[00:22:08] Speaker 05:
So is the difference here, then, if there would have been a buddy statement to state, I saw the icicles fall and the board still says, well, there's nothing in the service medical records, then that's a violation of Buchanan?

[00:22:20] Speaker 05:
What's the difference?

[00:22:21] Speaker 03:
How can you weigh the- With the difference between a competent statement and an incompetent statement?

[00:22:25] Speaker 05:
But the board is not finding that they're incompetent.

[00:22:28] Speaker 05:
The board is simply downgrading the probative value of these statements.

[00:22:32] Speaker 00:
That's the point.

[00:22:32] Speaker 00:
They didn't find them to be incompetent.

[00:22:34] Speaker 01:
Let me read to you from Buchanan.

[00:22:36] Speaker 01:
This is a direct quote from Buchanan.

[00:22:37] Speaker 01:
This is not to say the board may not discount lay evidence when such discounting is appropriate.

[00:22:43] Speaker 01:
Rather, the board as fact finder is obligated to and fully justified in determining whether lay evidence is credible in and of itself because of possible bias, conflicting statements, et cetera.

[00:22:53] Speaker 01:
Nor do we hold the board cannot weigh the absence of contemporary medical records against the lay evidence of record.

[00:22:58] Speaker 01:
I just don't think Buchanan stands for the proposition that you want it to.

[00:23:02] Speaker 01:
I mean, Buchanan stands for the proposition that the board can still evaluate how much weight to give these lay evidence.

[00:23:08] Speaker 01:
And that seems like what they did here.

[00:23:11] Speaker 05:
Well, in regards to when the lay evidence is weighed, this is not a case where we have any evidence against the veterans claim.

[00:23:23] Speaker 05:
We don't have social security records or a post-service incident

[00:23:27] Speaker 05:
or the veteran misrepresenting these incidents later on.

[00:23:32] Speaker 05:
The only evidence in the claim supports the veteran.

[00:23:36] Speaker 03:
An absence of documentation is in itself.

[00:23:41] Speaker 04:
And that's Buchanan.

[00:23:42] Speaker 04:
Because Buchanan says the absence of service medical records cannot be the only thing that

[00:23:47] Speaker 04:
the board uses to deny the crime.

[00:23:48] Speaker 03:
But the absence of records that say, gee, we had two guys killed at this unit, you know, those kinds of things are reported.

[00:23:59] Speaker 03:
Not always, Your Honor.

[00:24:00] Speaker 03:
I beg your pardon?

[00:24:01] Speaker 03:
They're not always reported, Your Honor.

[00:24:04] Speaker 03:
They require a board of inquiry.

[00:24:06] Speaker 05:
And certainly when they are reported, often those records are lost or unavailable.

[00:24:12] Speaker 05:
You know, in this claim, all the evidence points in favor of the veteran and there's nothing opposite of it other than the lack of records.

[00:24:19] Speaker 01:
Okay, I thank both counsel.

[00:24:21] Speaker 01:
Case is taken under submission.

[00:24:22] Speaker 01:
That ends our hearing for today.