[00:00:17] Speaker 01:
Final case for argument this morning is 157093, Custer versus McDonald.

[00:00:22] Speaker 01:
I'll give you time to get settled here.

[00:00:25] Speaker 01:
Good morning, Mr. Kinman.

[00:00:44] Speaker 02:
Yes, ma'am.

[00:00:44] Speaker 02:
May it please the court?

[00:00:46] Speaker 02:
My name is Maxwell Kim and I'm representing David Custer.

[00:00:49] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:51] Speaker 02:
Thank you.

[00:00:53] Speaker 02:
Your Honor, Mr. Custer filed his claim for service-connected disabilities in 2008.

[00:00:57] Speaker 02:
After that filing, he was provided two hearings, one before decision review officer, one before member of the board.

[00:01:04] Speaker 02:
At no point prior to 2012 was he offered a decision saying that he was not credible in his statements.

[00:01:13] Speaker 01:
So your view is here the board said something that was ambiguous because there seemed to be a clash between a couple of their comments.

[00:01:22] Speaker 01:
The Court of Veterans Claims recognized that and sent it back for clarification.

[00:01:27] Speaker 01:
You had a notice.

[00:01:28] Speaker 01:
You had an opportunity to respond.

[00:01:29] Speaker 01:
And you view that as a due process violation?

[00:01:32] Speaker 02:
I would strongly assert, Your Honor, that there was no ambiguity of what the board said.

[00:01:37] Speaker 02:
The board's comments in its 2012 decision clearly found

[00:01:42] Speaker 02:
that Mr. Custer was credible.

[00:01:45] Speaker 02:
The statement is plain English.

[00:01:46] Speaker 02:
This is the record of 1-128.

[00:01:49] Speaker 02:
The board acknowledges the veteran's lay statements that his back disability can be attributed to his in-service duties and his noted in-service back spasms.

[00:01:58] Speaker 02:
The board observes in this regard, while the veteran is credible, he's not competent to discuss medical issues.

[00:02:05] Speaker 01:
Okay.

[00:02:05] Speaker 01:
And then it went on to say that

[00:02:09] Speaker 01:
A couple other sentences.

[00:02:10] Speaker 01:
This persuasively suggests that the veteran did not experience chronic back pain continuously since his service separation.

[00:02:18] Speaker 02:
But that statement deals with his competency to describe medical issues.

[00:02:21] Speaker 02:
What the board is doing here is they're saying that this is a veteran.

[00:02:24] Speaker 02:
He's credible to make these statements.

[00:02:26] Speaker 02:
He's credible to report these conditions.

[00:02:28] Speaker 02:
But he's not a doctor.

[00:02:30] Speaker 02:
So he can't competently identify whether or not the back condition was related to service.

[00:02:35] Speaker 01:
And we have jurisdiction to kind of review and second guess the court of veterans claims thought there was an inconsistency or an ambiguity in these statements, and we mandated it back home.

[00:02:45] Speaker 01:
Where is our jurisdiction to review that?

[00:02:47] Speaker 02:
The jurisdiction is here because this is a purely due process violation.

[00:02:51] Speaker 02:
When the board states, tells the veteran, you are credible.

[00:02:55] Speaker 02:
You are credible to report your symptoms.

[00:02:58] Speaker 02:
And then later on in their decision, they say, yes, you're not competent because you're not a doctor.

[00:03:02] Speaker 02:
The veteran is then under the understanding that he is credible to report what happened to him.

[00:03:07] Speaker 02:
Now the reason why this is important is because what happened here truly is the board made a mistake.

[00:03:13] Speaker 02:
They wanted to deny the claim, and they thought they could do so by saying, well, Mr. Custer, you're credible, but you're not competent.

[00:03:20] Speaker 02:
And they forgot about the continuity of symptomatology avenue.

[00:03:25] Speaker 02:
And so what happens when the case got back to the board, the board said, oops, we made a mistake.

[00:03:30] Speaker 02:
We're going to find him not credible now.

[00:03:32] Speaker 02:
Because if he's credible, he's granted service connection.

[00:03:35] Speaker 04:
Respectfully, why is it that it's not the reverse of what you say?

[00:03:39] Speaker 04:
You say that the first statement, that as a lay person, he's credible to report having experienced chronic back pain.

[00:03:47] Speaker 04:
And then the later statement says that he persuasively, the fact that his back problems were triggered by the 2006 on-the-job accident

[00:03:58] Speaker 04:
persuasively suggest that the veteran did not experience chronic back pain, why isn't it reversed?

[00:04:04] Speaker 04:
Let me try to explain that a little bit better.

[00:04:05] Speaker 04:
I mean, why isn't it that it's saying Mr. Crestor, as a lay person, is competent to report having experienced chronic back pain, but given his inconsistent statements, it's not persuasively suggesting he didn't experience back pain.

[00:04:20] Speaker 04:
In other words, you are suggesting you're making a factual argument that we're supposed to interpret these two sentences in a particular way

[00:04:28] Speaker 04:
But the Veterans Court looked at it and said, this is inconsistent.

[00:04:32] Speaker 04:
We want to remand it.

[00:04:35] Speaker 04:
I mean, why can't you read the statement that JA 128 is reading as a layperson?

[00:04:42] Speaker 04:
He's competent to report his pain, because people can do that.

[00:04:47] Speaker 04:
It doesn't mean that we're going to believe it or that it's credible.

[00:04:50] Speaker 02:
Well, if the board would have said that in that manner, I think we wouldn't be here today.

[00:04:56] Speaker 02:
Basically, I can't see where that language is not clear to this court.

[00:05:02] Speaker 02:
I can't see how it's not clear to the Veterans Court when the word is, while the veteran is credible to report having experienced chronic back pain.

[00:05:09] Speaker 02:
What else could that mean in English?

[00:05:11] Speaker 04:
Well, given the other statement at JA 130, it underlines that and gives it a different meaning, perhaps.

[00:05:18] Speaker 04:
Again, I think it's a factual issue for the Court of Veterans Claims to determine.

[00:05:22] Speaker 02:
So at the bottom of JA 130, the board is discussing specifically the Social Security Administration findings.

[00:05:28] Speaker 02:
And on JA 130, before the Social Security Administration findings, they're discussing medical opinions submitted by the veteran.

[00:05:36] Speaker 02:
And they're saying, well,

[00:05:37] Speaker 02:
As the veteran, you've submitted these medical opinions, but we're going to find holes in those medical opinions because social security records say differently.

[00:05:49] Speaker 02:
So it's really a battle of the records.

[00:05:51] Speaker 02:
It's not an issue of whether or not the veteran's statements are credible.

[00:05:55] Speaker 02:
The board is using the social security records to downgrade the private medical opinions submitted by the veteran.

[00:06:03] Speaker 02:
It has nothing to do with his credibility

[00:06:05] Speaker 02:
And quite frankly, he was never given an opportunity to have noticed that he was not credible.

[00:06:12] Speaker 02:
The first time he's provided that opportunity is in the most recent board decision.

[00:06:17] Speaker 03:
If the VA wanted to- So that's the decision we're reviewing.

[00:06:20] Speaker 03:
So if he had the opportunity, what's the due process violation?

[00:06:23] Speaker 02:
Well, he did not have the opportunity, Your Honor.

[00:06:26] Speaker 02:
So in 2012, the board issues this decision that, if we can all agree, is at least ambiguous.

[00:06:32] Speaker 02:
That's in 2012.

[00:06:33] Speaker 02:
The Veterans Court follows up in 2013 with a remand decision, also stating Mr. Custer's credible.

[00:06:40] Speaker 02:
At no point in time does the VA issue a supplemental statement of the case.

[00:06:44] Speaker 02:
Do they provide him any other notice that Mr. Custer, at this point in time, even though for the past six years we've found you credible, we're not going to do so any longer.

[00:06:52] Speaker 02:
That notice is first given in the follow-up board decision.

[00:06:57] Speaker 02:
And at that point in time, Mr. Custer is not allowed to submit any new evidence.

[00:07:01] Speaker 02:
If he's provided a supplemental statement of the case, he can then turn around and say, OK, I need to get buddy statements.

[00:07:06] Speaker 02:
I need to get supporting evidence.

[00:07:08] Speaker 02:
I need to get documentation from friends, family, coworkers who could testify and submit affidavits that I was suffering from low back pain since service.

[00:07:17] Speaker 02:
He doesn't have that opportunity because he has no notice that the board's going to do a 180 on him and that the court's going to do a 180 on him.

[00:07:25] Speaker 02:
If you're a veteran and you read this board decision in 2012,

[00:07:29] Speaker 02:
and the language says the veteran is credible to report having back pain, how are you going to know that, okay, I'm going to turn around two years from now and I'm not going to be credible?

[00:07:39] Speaker 02:
There's no, it's a clear due process violation.

[00:07:42] Speaker 03:
In connection with the most recent board decision, which is what, 2013?

[00:07:47] Speaker 02:
The most recent one would have been prior to the court's decision, I believe that was 2013.

[00:07:52] Speaker 03:
And in that decision,

[00:07:54] Speaker 03:
The board found that he was not credible, right?

[00:07:57] Speaker 03:
That's correct, Your Honor.

[00:07:57] Speaker 03:
Was his credibility argued to the board in connection with that?

[00:08:01] Speaker 02:
There was no arguments to the board in regards to credibility because the veteran had no notice that that was going to be an issue.

[00:08:08] Speaker 02:
When you're before the board, it's not a court hearing.

[00:08:11] Speaker 02:
You don't go sit and provide evidence.

[00:08:13] Speaker 02:
The board just makes a decision on the papers.

[00:08:16] Speaker 02:
So there was no opportunity.

[00:08:18] Speaker 02:
No briefings?

[00:08:19] Speaker 02:
There's no briefing.

[00:08:19] Speaker 02:
There's no argument in front of the board.

[00:08:22] Speaker 02:
He had previously had a board hearing, but that was before the 2012 board decision.

[00:08:28] Speaker 02:
So he was not given a new board hearing.

[00:08:30] Speaker 02:
He was not given an opportunity to... But wait a second.

[00:08:33] Speaker 03:
In connection with the remand, there's not an opportunity to submit further material to the board?

[00:08:38] Speaker 02:
You can certainly submit further material to the board upon remand, but... And didn't he do that?

[00:08:45] Speaker 02:
He wouldn't know that that is the material that he had to submit.

[00:08:48] Speaker 04:
I mean, when the Court of Veterans Claims specifically said, we would like you to consider the credibility determination.

[00:08:59] Speaker 04:
This seems inconsistent.

[00:09:00] Speaker 04:
Why did we have notice?

[00:09:02] Speaker 02:
Well, I think if you review the Veterans Claims Court's decision on the record of 136, it's also not clear.

[00:09:11] Speaker 02:
On 136, the main paragraph, the court says,

[00:09:15] Speaker 02:
Basically, he's discussing the continuity of symptomatology claim, that the board had found him credible to report having experienced chronic back pain.

[00:09:24] Speaker 02:
The court doesn't say there's an issue here with whether or not Mr. Cruster is credible.

[00:09:31] Speaker 02:
They don't come out and say that.

[00:09:33] Speaker 02:
What they do is they say, board, you need to go back and you need to examine whether or not, based on his statements, which were credible, he would qualify for service connection under continuity of symptomatology.

[00:09:45] Speaker 01:
Wait a minute, didn't, okay, JA 139.

[00:09:48] Speaker 01:
Yes.

[00:09:49] Speaker 01:
This letter that you submitted, was this not submitted to the board as it was considering this remand decision?

[00:09:58] Speaker 02:
Oh yes, this letter was submitted to the board following the court's remand decision.

[00:10:03] Speaker 01:
Okay.

[00:10:06] Speaker 01:
And you submitted arguments, presumably, it looks like you were trying to bolster or reassert this argument that he was credible.

[00:10:15] Speaker 02:
I think I was reasserting what the facts were, what the facts and evidence had been the entire time the case had been at issue.

[00:10:23] Speaker 02:
Again, reading the Court's decision, there's nothing that the Court says, the Veterans Court says, that credibility is going to be an issue.

[00:10:31] Speaker 03:
Well, what about on 137, where at the top of the page, the Court will remand this matter to the Board so it may properly consider all the evidence, including lay evidence, and determine whether Mr. Custer's lay evidence

[00:10:44] Speaker 03:
as to continuity of symptoms is credible and probative.

[00:10:49] Speaker 02:
But that is in regards to whether or not it satisfies the requirements under the continuity of symptomatology.

[00:10:56] Speaker 02:
It's not saying that the board is going to reanalyze whether or not he's credible.

[00:11:01] Speaker 02:
What the court is saying there is, I want you, the board, to determine whether or not his statements are sufficient for the continuity of symptomatology.

[00:11:10] Speaker 03:
Well, how is that different?

[00:11:13] Speaker 03:
Why doesn't that encompass whether he has back pain and what the source of it is?

[00:11:20] Speaker 02:
I guess I've misunderstood the question, Your Honor.

[00:11:22] Speaker 03:
Well, the question here is whether his back pain is service-connected, right?

[00:11:28] Speaker 03:
Yes.

[00:11:29] Speaker 03:
And so why isn't this broad enough to include that?

[00:11:34] Speaker 03:
The remand.

[00:11:35] Speaker 02:
Certainly.

[00:11:36] Speaker 02:
I mean, the remand considers the entire issue at hand, whether or not his back

[00:11:40] Speaker 02:
disability is related to service, that is the question.

[00:11:43] Speaker 02:
But there's two ways to get to that service connection.

[00:11:45] Speaker 02:
So way one is to get a medical nexus opinion stating that his current back condition is related to service.

[00:11:53] Speaker 02:
Now the veteran had that in his file, but the board and the VA says those opinions are irrelevant because he's not credible.

[00:12:01] Speaker 02:
The second way that you could get service connection is to prove you've had these symptoms since you've left service.

[00:12:07] Speaker 02:
And the entire time the case was pending, until the most recent board decision, that had not been an issue.

[00:12:12] Speaker 02:
It had not been discussed by the VA, and it had not been discussed by the board because it had been missed.

[00:12:17] Speaker 02:
And that's what the court is doing here, is they're saying, the board, you've missed these arguments.

[00:12:22] Speaker 02:
You've missed the continuity of symptomatology arguments.

[00:12:25] Speaker 02:
And because of that, go back and make a determination under that section whether or not the evidence is sufficient for service connection.

[00:12:33] Speaker 01:
Why don't we hear from the other side?

[00:12:34] Speaker 01:
Thank you, Your Honor.

[00:12:44] Speaker 00:
May it please the court?

[00:12:46] Speaker 00:
In Mr. Custer's brief and his arguments to the court today, he's inviting the court to take a new look at this record, the facts in this record, the evidence submitted that's different from the factual findings and the evaluation of the board and the Veterans Court.

[00:13:03] Speaker 00:
Each of the issues raised in this appeal involve factual questions that are typically beyond this court's jurisdiction under subsection D2 of this court's jurisdictional statute.

[00:13:13] Speaker 00:
To be sure, in a colorable constitutional claim, this court can review all aspects, including factual findings raised by the veteran.

[00:13:22] Speaker 03:
Why don't you address the argument that he's making, that he didn't have notice that his late testimony as to his back pain and the credibility of that testimony was at issue.

[00:13:36] Speaker 00:
Well, credibility is always at issue.

[00:13:38] Speaker 00:
There's a broad matter first.

[00:13:39] Speaker 00:
Credibility is always at issue before the board.

[00:13:42] Speaker 00:
As is court held in Madden, the board has an obligation to provide findings regarding credibility as part of its obligation to provide reasons and bases for its decision.

[00:13:52] Speaker 00:
So any veteran, any claimant appearing before the board always has notice that the board will address credibility.

[00:13:58] Speaker 00:
Here specifically, the board addressed credibility in its 2012 decision, and as the court

[00:14:06] Speaker 00:
has noted at JA 129 to 130, the board conducted an analysis regarding the veteran's prior conflicting statements that his back injury essentially started in 2006, not in service in 1980.

[00:14:24] Speaker 00:
And the Veterans Court found that there was a conflict because of this other statement saying

[00:14:31] Speaker 00:
that he's credible to report.

[00:14:33] Speaker 00:
And to the extent it's a factual finding, certainly it should not be challenged here on appeal.

[00:14:40] Speaker 01:
Can you articulate what problem the Court of Veterans Claims saw with what the board had done?

[00:14:46] Speaker 01:
I mean, it seems to really not be in conflict with the credibility.

[00:14:50] Speaker 01:
It seems to be, and this rings a bell because we've had a lot of cases during this period of time,

[00:14:56] Speaker 01:
that talked about a refusal to listen, to hear evidence of a layperson and invisibility of that.

[00:15:01] Speaker 01:
So what's your read on what the CABC was doing, the problem it saw in the board's opinion, and why it remanded?

[00:15:08] Speaker 00:
So I think the best reading of the board's 2012 decision is one that was suggested by Judge Stoll, that what the board was actually trying to say was that the veteran is competent to report these types of symptoms.

[00:15:19] Speaker 00:
Here, the conflicting evidence shows he was not credible.

[00:15:23] Speaker 00:
The best way to read the board

[00:15:24] Speaker 00:
The Veterans Court's next decision, I think, is just essentially reading the record in the way most favorable to the veteran, essentially, because the board should have used the word competent instead of credible.

[00:15:37] Speaker 00:
The Veterans Court seems to be saying, you know, reading that in the way that's most helpful to the veteran, there's a conflict, and so we will send it back.

[00:15:45] Speaker 00:
The court will send it back to the board for a re-determination regarding credibility to ensure that the board's ultimate finding is clear.

[00:15:54] Speaker 00:
To the extent the court does not choose to defer to that, the better finding is that the board has been consistent in finding that there is inconsistencies in what the veteran is saying regarding continuity of symptomatology.

[00:16:08] Speaker 00:
And although here before the court, Mr. Custer suggests that the record at JA 129 to 130, the board's analysis of credibility, that doesn't

[00:16:21] Speaker 00:
he argues that doesn't relate to continuity of symptomatology.

[00:16:25] Speaker 00:
But for example, just one section at the very top of 130, the conclusion, the factual conclusion that the board reaches is that Mr. Croster's testimony persuasively suggests that he did not experience chronic pain continuously since his service separation.

[00:16:42] Speaker 00:
So this certainly is addressing continuity of symptomatology, the lay testimony regarding continuity of symptomatology.

[00:16:52] Speaker 00:
The difficulty with this entire analysis is that this is precisely the sort of fact-intensive record-based evaluation that typically the court... I don't think that's very persuasive.

[00:17:04] Speaker 03:
I mean, if he didn't receive notice of an issue, I mean, that creates a constitutional issue which we can look at.

[00:17:11] Speaker 03:
The question is, did he receive the notice, sufficient notice?

[00:17:15] Speaker 00:
Well, respectfully, Your Honor, this type of notice that he's mentioning here is completely foreign to other types of

[00:17:20] Speaker 00:
notice traditionally understood in due process context.

[00:17:23] Speaker 00:
Notice in due process is normally referring to notice of the pendency of the claim, which certainly there's no dispute that he had that here.

[00:17:30] Speaker 00:
Or it's referring to the opportunity to respond.

[00:17:33] Speaker 00:
Again, there's no dispute.

[00:17:34] Speaker 00:
There were multiple hearings.

[00:17:36] Speaker 00:
Mr. Caster had the opportunity to submit written submissions.

[00:17:40] Speaker 00:
There were two appeals to the Veterans Court.

[00:17:42] Speaker 03:
And nor is there any argument in the... I would have thought your argument very simple, that they remanded for

[00:17:46] Speaker 03:
a determination as to whether the evidence in his testimony about continuity of cysts symptoms was credible, and that was sufficient notice.

[00:17:55] Speaker 03:
Why are you making it more complicated than that?

[00:17:58] Speaker 00:
Well, that's certainly our argument on merits.

[00:18:01] Speaker 00:
In the alternative, if the court reaches the merits, here there was actual notice, as the court notes in the Veterans Court decision, that the express reason for the remand is to reconsider credibility.

[00:18:13] Speaker 01:
Can you just point us to what you're talking about in that regard?

[00:18:16] Speaker 00:
So in the 2013 decision, it's actually the portion cited by the court at JA 137, where in the bottom part of the first full paragraph, it says the court will remand the matter, this matter, so that the board may properly consider all the evidence, including the lay evidence, and determine whether Mr. Custer's lay evidence as to continuity of symptoms is credible and probative.

[00:18:40] Speaker 00:
And there's no other reason.

[00:18:42] Speaker 01:
I'm sorry.

[00:18:42] Speaker 01:
I didn't hear.

[00:18:43] Speaker 01:
I'm not reading.

[00:18:44] Speaker 01:
Maybe we have a different marking.

[00:18:45] Speaker 01:
JA 137?

[00:18:47] Speaker 01:
Yes.

[00:18:48] Speaker 00:
And it's the first paragraph.

[00:18:50] Speaker 00:
It's one, two, three.

[00:18:52] Speaker 00:
Oh, OK.

[00:18:53] Speaker 01:
I thought you.

[00:18:53] Speaker 01:
OK.

[00:18:54] Speaker 00:
One, two, three, four, five.

[00:18:55] Speaker 00:
It's not the first four paragraph.

[00:18:56] Speaker 00:
It's six lines up from the NOR.

[00:18:57] Speaker 01:
Thank you.

[00:18:57] Speaker 00:
All right.

[00:18:58] Speaker 00:
So it is in the last sentence of that paragraph.

[00:19:02] Speaker 00:
And there's no other basis.

[00:19:04] Speaker 00:
Well, there's the medical record from Dr. Topo as an additional basis for remand.

[00:19:10] Speaker 00:
The reason for the remand is for the board to make a clear statement regarding credibility.

[00:19:17] Speaker 00:
So that's the notice to the veteran.

[00:19:22] Speaker 04:
So you're saying that considering all the evidence, including lay evidence, includes the credibility and statements of the veteran himself?

[00:19:31] Speaker 00:
Yes.

[00:19:32] Speaker 00:
Precisely.

[00:19:33] Speaker 00:
The reference to lay evidence expressly refers to lay evidence and credibility.

[00:19:39] Speaker 00:
certainly sufficient notice, in addition to the fact that the board will always consider credibility.

[00:19:46] Speaker 00:
But then the entire analysis leading up to that is addressing what the Veterans Court viewed as a deficiency in the statement of reasons and bases regarding credibility in the first place.

[00:19:59] Speaker 00:
So really the only way to read this entire section of the Veterans Court's decision is that it's addressing

[00:20:06] Speaker 00:
It's remanding for the determination of edibility.

[00:20:08] Speaker 03:
And when the board rendered its decision on remand, did it do so in terms of a lack of continuity of symptoms?

[00:20:16] Speaker 00:
Yes.

[00:20:17] Speaker 00:
Yes.

[00:20:18] Speaker 00:
As Mr. Custer explained, there were two options for proving nexus.

[00:20:22] Speaker 00:
And here, the normal route for proving nexus, the board found, was not there because the medical evidence did not establish it.

[00:20:30] Speaker 00:
And so continuity of symptomatology

[00:20:32] Speaker 00:
under the Walker, the court's Walker analysis, would have been the only way.

[00:20:36] Speaker 00:
So it was addressing continuity of symptomatology.

[00:20:38] Speaker 03:
Was the only way because?

[00:20:40] Speaker 00:
Because typically, as this court has held, veterans are normally not competent to provide medical evidence regarding nexus between a prior injury and a current injury, so the current back injury.

[00:20:56] Speaker 00:
The exception to that is for chronic illnesses like

[00:21:00] Speaker 00:
here, their arthritis, the back to back disability.

[00:21:03] Speaker 03:
Well, apart from the continuity of symptoms, on the other alternative theory, what role did the veterans credibility play in that?

[00:21:12] Speaker 00:
As I understand, the veteran's own testimony was not used, nor could it be used, to establish nexus under the alternative method for proving nexus.

[00:21:24] Speaker 03:
Really?

[00:21:24] Speaker 03:
I mean, I thought we'd been pretty clear that a medical professional can take into account a veteran's testimony about what he experienced.

[00:21:33] Speaker 00:
Yes.

[00:21:34] Speaker 00:
And here, Mr. Custer's testimony was used to establish that he has a disability now and during service.

[00:21:44] Speaker 00:
But here, the board found that the medical opinions.

[00:21:51] Speaker 03:
Could you show me where the board addresses the medical opinion as being insufficient?

[00:21:56] Speaker 00:
So I believe it appears primarily in the board's 2012 decision, because it was not remanded.

[00:22:03] Speaker 03:
In other words, you're saying the remand was only on the continuity of symptoms issue and not on this alternative issue.

[00:22:10] Speaker 04:
That's my understanding, yes.

[00:22:11] Speaker 03:
So the fact that he might not have noticed that the other issue was involved isn't a problem.

[00:22:21] Speaker 00:
In other words... I don't think the other issue was involved.

[00:22:24] Speaker 03:
Yeah, so the remand was to consider continuity of symptoms.

[00:22:28] Speaker 03:
They said

[00:22:29] Speaker 03:
you can consider the credibility issue in that connection.

[00:22:32] Speaker 03:
So there was notice that this credibility issue would be pertinent on the remit.

[00:22:37] Speaker 00:
Yes.

[00:22:39] Speaker 00:
And so certainly that would be an appropriate fine for this court to make.

[00:22:44] Speaker 00:
That's the outcome we request if the court reaches the merits.

[00:22:50] Speaker 00:
We do think that in order to obtain jurisdiction in the court in the first place, there has to be at least some argument for why this either involves traditional elements of due process, which it does not, or why this involves some good faith extension of the law regarding due process, perhaps using an application of

[00:23:10] Speaker 00:
the factors in Matthews v. Eldridge or something akin to that.

[00:23:15] Speaker 00:
Here there's simply no colorable reason why the board would have to provide notice in advance of making a credibility finding, especially when the board is obligated, sua sponte, to make credibility findings in every single case.

[00:23:28] Speaker 00:
And so this is essentially, in our view, this results in erosion.

[00:23:32] Speaker 03:
I have a problem with that.

[00:23:33] Speaker 03:
I mean, if the remand had been

[00:23:34] Speaker 03:
to consider some medical issue and on the remand, the board instead has said we don't need to reach the medical issue because we don't find the veteran credible.

[00:23:45] Speaker 03:
That would be a problem, wouldn't it?

[00:23:48] Speaker 00:
It may be a problem, but it would not be a due process problem.

[00:23:51] Speaker 00:
Really?

[00:23:51] Speaker 03:
Yeah.

[00:23:54] Speaker 00:
Okay.

[00:23:55] Speaker 00:
For these reasons, we respectfully request that the court dismiss Mr. Cruster's claim for lack of jurisdiction or in the alternative

[00:24:02] Speaker 00:
deny on the merits and affirm the Veterans Court.

[00:24:11] Speaker 02:
Thank you.

[00:24:14] Speaker 02:
I'd like to comment on your questions there at the end.

[00:24:19] Speaker 02:
The court's remand was not just for the continuity of symptomatology issue.

[00:24:23] Speaker 02:
And the board's decision, the most recent board's decision, addressed both the continuity of symptomatology

[00:24:29] Speaker 02:
and the traditional way to get service connection.

[00:24:31] Speaker 03:
Where did it address what you call the traditional way?

[00:24:33] Speaker 02:
If you look at the joint appendix at page 160, the second paragraph there that says the board notes that this is September 2009, and April 2010, opinions provided by the veteran's private chiropractor suggest that his symptoms could be correlated directly to his in-service injury.

[00:24:51] Speaker 02:
But what the board does is they downplay that medical evidence submitted by the veteran because they find that

[00:24:59] Speaker 02:
His statements are incredible.

[00:25:01] Speaker 03:
Where does it tie the lack of credibility of his statements into the chiropractor's opinion?

[00:25:13] Speaker 02:
So it says, in the middle of that paragraph, further, the board observes that the chiropractor referred to an in-service injury during the veteran's basic training.

[00:25:20] Speaker 02:
A review of his service treatment records does not show any in-service back injury.

[00:25:25] Speaker 02:
And indeed, they show that he suffered from back spasms leading to functional back pain.

[00:25:29] Speaker 02:
So it downgrades that opinion for that reason.

[00:25:31] Speaker 02:
And then it contrasts those opinions with the 2010 and 2011.

[00:25:34] Speaker 03:
Yeah, but this doesn't seem to rest on a finding of lack of credibility of the veteran.

[00:25:40] Speaker 02:
Well, it's saying they don't believe him on his back injury.

[00:25:42] Speaker 02:
They don't believe that he had an injured back.

[00:25:44] Speaker 02:
So they instinctively find him incredible.

[00:25:48] Speaker 02:
The statement therefore that the veteran's service remunerators do not show any in-service back injury

[00:25:54] Speaker 02:
So they're implicitly saying, well, the veteran can tell us all day long that he injured his back in service.

[00:26:00] Speaker 02:
And he could tell his medical providers that.

[00:26:01] Speaker 02:
He could tell the chiropractor that.

[00:26:03] Speaker 02:
But we don't believe him because he's not credible.

[00:26:06] Speaker 02:
And this makes it an impossible case for the veteran.

[00:26:09] Speaker 03:
Well, perhaps what you should have argued was that the absence of the information from the records isn't sufficient and that they've got to address whether the veteran is credible.

[00:26:17] Speaker 03:
But I don't understand that argument to have been made.

[00:26:20] Speaker 02:
Well, we've addressed the entire time whether or not he's credible once we've had the opportunity to do so, and once we've had notice to do so.

[00:26:26] Speaker 02:
But if the board finds that a veteran is not credible, it's impossible to win a case.

[00:26:32] Speaker 02:
It's impossible.

[00:26:33] Speaker 02:
And because even if you have the $10,000 medical expert opinion, it doesn't matter because that opinion is going to be based upon the veteran's statements, and the board's going to downgrade that opinion.

[00:26:47] Speaker 02:
So by finding that the veteran's statements are not credible,

[00:26:50] Speaker 02:
He cannot win his case based on continuity of symptomatology.

[00:26:53] Speaker 02:
He cannot win his case on the traditional route.

[00:26:56] Speaker 02:
And that's quite simply what the board and what the VA did here.

[00:27:00] Speaker 02:
They initially find him credible, and then they turn around and they realize they made a mistake because they're going to have to grant this award.

[00:27:06] Speaker 02:
And they turn it around, and based on the exact same facts, the exact same evidence, nothing had changed.

[00:27:11] Speaker 02:
They say, well, we're going to look at this social security record in 2008, and you didn't mention your back injury in the 80s.

[00:27:20] Speaker 02:
And it's blatantly unfair, and it's blatantly a violation of due process.

[00:27:25] Speaker 01:
Thank you.