[00:00:17] Speaker 03:
May we be excused for it?

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

[00:01:00] Speaker 02:
Our final case this morning is number 16-1681 Crawford versus McDonald, Mr. Kenman.

[00:01:07] Speaker 03:
Good morning, Your Honors.

[00:01:12] Speaker 03:
May I please reserve five minutes for rebuttal?

[00:01:14] Speaker 02:
Yes.

[00:01:14] Speaker 03:
Thank you.

[00:01:15] Speaker 03:
May it please the Court, my name is Max Kenman representing the veteran in this matter, Tommy Crawford.

[00:01:21] Speaker 03:
The issue here is whether the Department of Veterans Affairs can withhold either granting or denying a primary claim

[00:01:30] Speaker 03:
thereby putting it into the VA's version of purgatory, and then adjudicate a secondary claim.

[00:01:37] Speaker 03:
What we have here is a veteran who was originally granted service connection for... So what's the problem?

[00:01:42] Speaker 02:
You can go back and litigate the other claim if you want, right?

[00:01:47] Speaker 03:
We certainly can litigate the primary claim because that one is not over yet.

[00:01:52] Speaker 03:
However, the problem will be the secondary claim was denied.

[00:01:55] Speaker 03:
So that claim is forever denied unless, number one, new and material evidence is submitted.

[00:02:00] Speaker 03:
And even if that claim is then granted years later, the effective date of that award is not going to date back to the original time.

[00:02:09] Speaker 02:
Yeah, but I think what your problem is that if the board here had said, well, you lose on your secondary claim because your primary claim is no good, you'd have a pretty good argument.

[00:02:19] Speaker 02:
But they didn't say that.

[00:02:20] Speaker 02:
They said that your secondary claim is denied because you haven't shown a causal connection to the HALEX.

[00:02:28] Speaker 03:
Your Honor, the...

[00:02:30] Speaker 03:
The secondary claim was the only claim on issue at the board.

[00:02:33] Speaker 03:
The board did not address the primary claim whatsoever.

[00:02:37] Speaker 03:
The medical opinion does address it briefly and say that the Hallux valgus does not cause the peripheral vascular disease.

[00:02:44] Speaker 00:
And that's the issue that the board decided?

[00:02:46] Speaker 03:
That is the issue that the board decided, but it only... And the court?

[00:02:50] Speaker 03:
But it only addressed it on a primary basis, not on a secondary basis.

[00:02:54] Speaker 03:
The arguments that we could present on a secondary basis are that the veteran's foot condition, his hallux valux, causes him to be unable to exercise, caused him to gain weight, caused him to be off of his feet, which thereby caused the peripheral vascular disease.

[00:03:10] Speaker 03:
We cannot make those arguments because the primary claim was not there.

[00:03:15] Speaker 03:
So the only arguments that the veteran could make before the board and the only arguments that the court would accept were that the hallux valux claim is a primary condition.

[00:03:24] Speaker 03:
meaning that it was primarily due to some incident that happened in service.

[00:03:28] Speaker 03:
If it were allowed to address it on a secondary basis, the arguments change completely.

[00:03:32] Speaker 03:
And that's the problem that we have here.

[00:03:34] Speaker 03:
We weren't allowed to bring forth those arguments, and the veteran wasn't allowed to bring forth those arguments because the claim was denied without his, or the claim was the secondary condition was denied without the primary condition being adjudicated.

[00:03:48] Speaker 03:
So the arguments would change completely.

[00:03:50] Speaker 03:
Whether the, and I know the board addresses that

[00:03:53] Speaker 03:
And the board's language sounds like it does address those arguments, but it really doesn't.

[00:03:57] Speaker 03:
Because it's only addressing it as a primary condition, not as a secondary one.

[00:04:02] Speaker 03:
We see secondary conditions all the time.

[00:04:05] Speaker 03:
For example, if you're a veteran and you have post-traumatic stress disorder, the PTSD might cause you to drink alcohol.

[00:04:13] Speaker 03:
And the alcohol drinking might cause you to have a esophagus condition or stomach condition.

[00:04:17] Speaker 03:
The esophagus and the stomach would be secondary conditions.

[00:04:21] Speaker 03:
If there was no PTSD,

[00:04:23] Speaker 03:
you could only claim the stomach and the esophagus were directly related to service, which is the same thing that happened here to Mr. Crawford.

[00:04:30] Speaker 03:
And he quite frankly had no other way to go about it.

[00:04:33] Speaker 03:
I think the record is clear that he had a hallux valgus claim that was pending.

[00:04:39] Speaker 03:
He had filed a notice of disagreement.

[00:04:41] Speaker 03:
The VA acknowledged that notice of disagreement.

[00:04:44] Speaker 03:
They specifically acknowledged it on joint appendix page 43.

[00:04:48] Speaker 03:
As an unrepresented party, he had no other reason to believe that his claim was not still currently pending.

[00:04:56] Speaker 03:
All of his arguments to the board, to the VA, all related that his foot condition was the cause of his vascular condition.

[00:05:04] Speaker 03:
And the board hops around that and says, well, you don't have a vascular condition that's related to service, when in actuality the argument is that the vascular condition is related to the foot condition.

[00:05:16] Speaker 03:
And that's what we have here.

[00:05:18] Speaker 03:
You know, we see these cases quite a bit where the VA just refuses to act.

[00:05:24] Speaker 03:
And I know the secretary believes that a unrepresented veteran should file a writ of mandamus to the Court of Appeals for Veterans Claims.

[00:05:33] Speaker 03:
This veteran did not have an attorney representing him, did not have an attorney representing him before the board.

[00:05:37] Speaker 03:
He had every reason to believe that his foot claim was still pending.

[00:05:44] Speaker 03:
The VA told him so.

[00:05:45] Speaker 03:
The VA told him so on Joint Appendix 43.

[00:05:47] Speaker 03:
The foot claim is still pending.

[00:05:49] Speaker 03:
And his mind, it is still pending.

[00:05:52] Speaker 03:
But the secretary's going to say it's no longer pending because he didn't file a timely notice of disagreement.

[00:05:58] Speaker 02:
And if his foot condition... That's a different issue than the one we have here.

[00:06:01] Speaker 03:
That is a different issue, Your Honor.

[00:06:03] Speaker 03:
But if his foot claim is still pending, then all we ask is that this court develop a rule where a secondary condition cannot jump to the front of the line before the primary condition.

[00:06:14] Speaker 03:
The VA has refused to issue a statement of the case on the primary foot condition.

[00:06:19] Speaker 03:
The board refused to address the primary foot condition.

[00:06:22] Speaker 03:
Instead, they are simply addressing the secondary condition, getting rid of the secondary condition, and thereby not giving the veteran any recourse to pursue his claim in the proper course.

[00:06:35] Speaker 03:
He can't make those arguments that the foot condition causes him not to exercise, because those arguments aren't valid unless you have a primary service connection claim.

[00:06:44] Speaker 00:
I'm not understanding why it is that the decision of the board, starting with the medical examiner and the board, they seem to be saying that the vascular condition was not caused by the Halus valgus.

[00:07:07] Speaker 03:
That's correct.

[00:07:08] Speaker 00:
And therefore,

[00:07:10] Speaker 00:
Even if Hallus valgus is determined to be service-connected and compensable at whatever rate, the vascular disease would go away.

[00:07:19] Speaker 00:
So that seems inconsistent with the argument you're making here, which is that they ignored the relationship between the Hallux valgus and the vascular disease.

[00:07:30] Speaker 00:
I didn't see them having ignored that.

[00:07:33] Speaker 03:
Well, they don't ignore it, but they only view it as a primary condition.

[00:07:37] Speaker 03:
So if you read the board's... I don't know.

[00:07:38] Speaker 00:
I mean, they said it's not caused by the condition of the feet or hallux valgus, et cetera.

[00:07:49] Speaker 00:
It wasn't caused by it.

[00:07:51] Speaker 00:
Therefore, that's, whether you call it primary or secondary, the issue in both cases is causation, is it not?

[00:07:59] Speaker 03:
The issue is causation, but they say there's no causation, but you can't reach the level of causation unless it, unless you have a primary condition to hop on.

[00:08:08] Speaker 00:
Well, but they're saying that even in effect, what they're saying, it seems to me is that even if the, there is evidence of house, Alex Valgas, that there's no causal connection between that and the ultimate determination of a vascular disease.

[00:08:25] Speaker 03:
But if you read the board's decision and the court's decision, neither of them address the arguments that because of the veteran's condition of his feet, he was unable to exercise.

[00:08:34] Speaker 03:
If you read the medical report, the medical examiner says peripheral vascular disease is most likely caused to obesity, poor work ethics, not able to work out.

[00:08:46] Speaker 03:
The board doesn't address that issue and the court doesn't address that issue because they don't have to, because they're addressing it as a primary condition.

[00:08:53] Speaker 03:
If he already had a foot condition that was rated and that was granted by the board or by the VA, the board would have to address the veteran's arguments that his peripheral vascular disease is a secondary condition because he was unable to work out, unable to exercise, unable to be on his feet.

[00:09:13] Speaker 02:
And that is what caused... But then he would still have to show at that point some sort of causal connection.

[00:09:19] Speaker 03:
He would.

[00:09:20] Speaker 03:
And if the board would have denied it because

[00:09:23] Speaker 03:
The board found that the evidence wasn't sufficient for that causal connection, we wouldn't be here.

[00:09:27] Speaker 02:
But the board... That's what they did do.

[00:09:29] Speaker 02:
They said there wasn't a causal connection.

[00:09:31] Speaker 02:
What's the difference between finding no causal connection now and finding no causal connection after you litigate the Hallux-Balgus claim?

[00:09:42] Speaker 03:
The difference would be that the veteran would have the opportunity to be heard on his arguments as to whether or not his foot condition

[00:09:49] Speaker 03:
and all the issues that are associated with it, meaning that he cannot stand on his feet, meaning that he's unable to walk, unable to run, all of those issues contributed or caused the peripheral vascular disease.

[00:10:03] Speaker 03:
Those arguments he was not allowed to make.

[00:10:04] Speaker 03:
He tried to make them, but as you can tell from the board's decision and you can tell from the court's decision, they don't even mention those arguments because they don't have to here.

[00:10:13] Speaker 03:
The difference is minute and it's picking points, but if you look at what the veteran said all along, he has said,

[00:10:19] Speaker 03:
My foot condition causes my vascular disease.

[00:10:23] Speaker 03:
Plain and simple.

[00:10:24] Speaker 03:
But it's not just because I injured my foot in service and the bunions on my toe magically caused this vascular disease.

[00:10:32] Speaker 03:
No, that's impossible.

[00:10:33] Speaker 03:
We know that's impossible.

[00:10:34] Speaker 03:
The difference is the foot condition caused him to be unable to exercise, which then causes the vascular disease.

[00:10:42] Speaker 03:
That's his argument.

[00:10:43] Speaker 03:
That's the crux of this argument, and that's the only argument

[00:10:46] Speaker 03:
you can make, and you can't be successful in that argument unless you are service connected for the foot disorder.

[00:10:52] Speaker 03:
And the board doesn't address it.

[00:10:54] Speaker 03:
You look on page 112 of the joint appendix on the issues, that issue's not even brought up before the board.

[00:10:59] Speaker 03:
And that's why we have a strong due process here argument that the veteran is not being given an opportunity to be heard on this issue.

[00:11:06] Speaker 03:
He's not being able to, he's frankly being ignored by the VA and having that claim sandwiched and pushed to the back of the line.

[00:11:14] Speaker 03:
So with no further questions on this, I'll wait for rebuttal.

[00:11:18] Speaker 02:
OK.

[00:11:18] Speaker 02:
Thank you.

[00:11:21] Speaker 02:
Mr. Sweet.

[00:11:32] Speaker 01:
Thank you.

[00:11:32] Speaker 01:
May it please the court.

[00:11:33] Speaker 01:
I'd like to respond first to the point that the board, in fact, did address these arguments.

[00:11:38] Speaker 01:
If you turn to joint appendix page 122, the first court sentence says, quote,

[00:11:43] Speaker 01:
It was also opined that it is less likely than not that his peripheral arterial disease is the result of a condition of the feet, bilateral feet pain, injury, event, or disease incurred in service," end quote.

[00:11:56] Speaker 01:
And then if you look at the first sentence in the next paragraph, it says, as to the lay claims from the veteran and others that the appellant's bilateral lower extremity peripheral vascular disease was caused by service, the board finds that the above VA medical opinion was more probative

[00:12:12] Speaker 01:
than these lay claims because health care professionals have more expertise," end quote.

[00:12:17] Speaker 01:
So the board did consider his claims that the halitivalgus caused his peripheral vascular disease, but he rejected those.

[00:12:26] Speaker 01:
Those are factual findings that this court cannot review.

[00:12:29] Speaker 01:
The entire argument that this is somehow a secondary and primary disease relies on overturning a factual finding by the board that there in fact is no causal connection.

[00:12:40] Speaker 01:
So in essence, that means that this is not a secondary condition.

[00:12:44] Speaker 01:
But even if it were, if he were ultimately to be able to go and get service connection for his hallux valgus and he didn't have this impediment of a lack of causal connection, he could go back and file an acute claim and get service connection back for his vascular disease.

[00:13:01] Speaker 01:
In this case, that couldn't happen because, as you pointed out,

[00:13:04] Speaker 01:
there's no cause or connection between the two diseases.

[00:13:07] Speaker 01:
So even if he does have service connection for the Hallux valgus, he's not going to be able to get it for the vasculitis.

[00:13:14] Speaker 00:
Now, Mr. Kinman suggests that the VA, if he tries to reinitiate his Hallux valgus claim, will claim that he's untimely.

[00:13:28] Speaker 00:
What's the VA's position on?

[00:13:31] Speaker 00:
This is procedurally a mess, thanks in part

[00:13:34] Speaker 00:
I think you will agree to the VA's having slipped up in a couple of respects in the advice that it gave him as to when things were due.

[00:13:42] Speaker 00:
What's the VA's position with respect to the status of his pending Hallux valgus claim?

[00:13:47] Speaker 01:
Certainly, you're absolutely correct that July letter was incorrect in that.

[00:13:53] Speaker 01:
But the problem that he faces is that then

[00:13:56] Speaker 00:
But that's not the only one.

[00:13:58] Speaker 00:
In December, I think there was an incorrect letter as well, was there not?

[00:14:02] Speaker 01:
No, I think the only one that was incorrect was the July letter, which indicated that, incorrectly, that he had filed a timely notice of discipline.

[00:14:11] Speaker 01:
And the VA has acknowledged that that was a mistake.

[00:14:14] Speaker 01:
The problem is that then in January 2008, the VA sends another letter saying, no, we made a mistake.

[00:14:22] Speaker 01:
you actually don't have a pending notice of disagreement.

[00:14:27] Speaker 01:
And Mr. Crawford has not done nothing.

[00:14:29] Speaker 01:
That's the last communication regarding this.

[00:14:32] Speaker 01:
So for nearly five, six years, the ball has been in his court.

[00:14:36] Speaker 01:
But that is an issue the VA has to resolve in the first instance.

[00:14:40] Speaker 01:
But it will be up to Mr. Crawford to go back to the RL and he'll have to explain why he didn't respond to that letter within a year.

[00:14:48] Speaker 01:
Because that decision that he doesn't have a timely

[00:14:52] Speaker 01:
notice of appeal is itself an appeal board decision.

[00:14:56] Speaker 01:
So at that point he could have and should have filed a notice of disagreement with that January letter and he had a year to do that, he didn't.

[00:15:06] Speaker 01:
To the extent he's arguing he was pro se or he didn't understand the letter again, I mean those are issues that he's going to have to raise before the RO in the first instance.

[00:15:16] Speaker 01:
He can go back now at this point, file that notice of disagreement and

[00:15:20] Speaker 01:
and try and justify it.

[00:15:21] Speaker 01:
And the RL will have to consider that in the first instance.

[00:15:28] Speaker 01:
If Your Honor's have no further questions, we respectfully request that the floor be from the Veterans Court.

[00:15:33] Speaker 01:
Thank you.

[00:15:34] Speaker 01:
Thank you, Mr. Sweet.

[00:15:38] Speaker 03:
Thank you, Your Honor.

[00:15:42] Speaker 03:
Judge Bryson, to answer your question in part, as you can tell from the Secretary,

[00:15:47] Speaker 03:
They're not answering it.

[00:15:48] Speaker 03:
They're not saying whether or not the claim's still pending or not.

[00:15:50] Speaker 03:
They want the veteran to go back, file a new claim with the RO, file a new notice of disagreement.

[00:15:56] Speaker 03:
They act like after that letter, he didn't do anything.

[00:15:59] Speaker 03:
Joint appendix, page 56, March of 2008.

[00:16:02] Speaker 03:
He argues, I've already filed a notice of disagreement for my Alex Valgus.

[00:16:06] Speaker 03:
He's still arguing it.

[00:16:08] Speaker 03:
July of 2009, he's still asserting the same argument.

[00:16:11] Speaker 03:
Joint appendix, page 82.

[00:16:12] Speaker 00:
What was the first JA site they gave me?

[00:16:15] Speaker 03:
Page 56.

[00:16:17] Speaker 03:
So that's after the alleged denial from the VA.

[00:16:22] Speaker 03:
He's saying, I'm filing another disagreement.

[00:16:24] Speaker 03:
Here's my reasons.

[00:16:25] Speaker 03:
I've already filed a notice of disagreement with the decision to sever my previous service connections for my fee.

[00:16:31] Speaker 03:
I don't know what else this man can do to tell the VA that he disagrees with the foot plan.

[00:16:37] Speaker 00:
That seems to me to be pretty evident.

[00:16:41] Speaker 00:
I don't think there's any acquiescence indicated by this record.

[00:16:45] Speaker 03:
And so then the issue becomes, if this claim is still pending, if this foot claim is still pending, why doesn't he have an opportunity to be heard as to why the foot claim causes the peripheral vascular disease?

[00:16:59] Speaker 03:
I go back to my PTSD example because I think it's a lot clearer to understand because these diseases are a little more complicated.

[00:17:05] Speaker 03:
If you have PTSD, and let's say the same situation exists, okay, where you had a PTSD claim and you disagreed but the VA did nothing with it, and then you filed a claim for throat cancer, okay, and the whole time you're saying my throat cancer is because I drink too much alcohol because of my PTSD, you're going to get the exact same case file here.

[00:17:28] Speaker 03:
You're going to see the board and the board is going to say, well,

[00:17:32] Speaker 03:
You don't have, or your throat cancer is not related to service and it's not related to PTSD because PTSD doesn't cause throat cancer.

[00:17:42] Speaker 00:
But that's the point at which the veteran says, yes, it does in my case and here's why.

[00:17:46] Speaker 03:
And that's what he's tried to do, but they haven't addressed it at all.

[00:17:49] Speaker 00:
But that really goes to the merits of whether you think the board has messed up the factual determination, but that's not something that... If the board had put in this decision or in my PTSD example, if the board would have put in

[00:18:02] Speaker 03:
PTSD caused alcohol problems for this veteran, but the alcohol did not cause the throat condition.

[00:18:08] Speaker 03:
I have no argument.

[00:18:09] Speaker 03:
If in this case the board would have said the veteran had a foot condition, he wasn't able to exercise,

[00:18:15] Speaker 03:
We hear his arguments.

[00:18:17] Speaker 03:
We hear what his evidence submitted on that is, but we disagree with that.

[00:18:21] Speaker 03:
We wouldn't be here.

[00:18:22] Speaker 02:
So you put in evidence.

[00:18:23] Speaker 02:
So your client put in evidence that he was unable to exercise because of the halibuts, right?

[00:18:28] Speaker 03:
That's his entire claim.

[00:18:29] Speaker 02:
Yeah.

[00:18:29] Speaker 03:
Yeah.

[00:18:30] Speaker 02:
That's every time.

[00:18:31] Speaker 02:
So your real complaint is they didn't discuss that.

[00:18:34] Speaker 03:
Right.

[00:18:34] Speaker 03:
And they didn't discuss it because there was no reason to discuss it.

[00:18:37] Speaker 03:
They didn't have to discuss it because the only way they would have to discuss it is if there was a primary claim to talk about it.

[00:18:45] Speaker 03:
There was no primary claim here to talk about.

[00:18:47] Speaker 03:
If you got throat cancer, sorry, it's not due to you having PTSD.

[00:18:51] Speaker 03:
That's different than you have throat cancer, it's not due to your alcohol usage, which is due to your PTSD.

[00:18:58] Speaker 03:
That's the step here that's missed.

[00:19:01] Speaker 03:
And it's frustrating because these folks, they come in, they serve, they do their duty in our country, they go all this way dealing with the bureaucracy of the Veterans Administration.

[00:19:12] Speaker 03:
He makes these arguments over and over and over,

[00:19:14] Speaker 03:
Once he has counsel at the Court of Appeals for Veterans Claims, I make these arguments for him, and we have a board decision that ignores it.

[00:19:21] Speaker 03:
We have the Honorable Judge down in the CAVC who says, well, I don't have to address it.

[00:19:27] Speaker 03:
And you have the most important thing, I think, is Joint Appendix, page 108.

[00:19:32] Speaker 03:
This is the medical examination that the board relies upon and that the court relies upon.

[00:19:37] Speaker 03:
On page 108, what the examiner says is that this is caused by

[00:19:44] Speaker 03:
obesity, hypertension, hyperlipidemia.

[00:19:47] Speaker 03:
Those are what cause peripheral or vascular disease.

[00:19:51] Speaker 03:
And what the examiner doesn't do is make the next step to say that the veteran's obesity, hypertension, and hyperlipidemia are due to him not being able to walk.

[00:20:02] Speaker 03:
The examiner doesn't address that issue because he doesn't have to.

[00:20:05] Speaker 03:
The board doesn't address it because they don't have to.

[00:20:07] Speaker 03:
And the court doesn't address it because they don't have to because the secretary

[00:20:12] Speaker 03:
messed up on this case and it wasn't properly in front of him.

[00:20:19] Speaker 02:
Thank you, Your Honor.