[00:00:03] Speaker 04:
The first case for argument this morning is 15-7067, Jordan versus McDonald.

[00:00:10] Speaker 04:
Mr. Hontos, whenever you're ready.

[00:00:15] Speaker 02:
Good morning and may it please the court, Alex Hontos on behalf of the veteran, Craig Jordan.

[00:00:20] Speaker 02:
The court should reverse for either of two independent reasons.

[00:00:23] Speaker 02:
The first pertaining to a misinterpretation of the law with respect to lay testimony.

[00:00:28] Speaker 02:
The second, a misinterpretation of the benefit of the doubt rule at 51-07.

[00:00:32] Speaker 02:
I'd like to address the issue of lay testimony first.

[00:00:35] Speaker 02:
In this case, the secretary excluded Nexus evidence based on lack of competency without first finding... Can I ask you just what went down here?

[00:00:44] Speaker 04:
I mean, this is just, I mean, you say they excluded it.

[00:00:46] Speaker 04:
As I read the record, I mean, it seems that at one point it was sent back by the board in May of 2012.

[00:00:54] Speaker 04:
And there, at least, the record says the board found that the opinions were deficient and not probative.

[00:01:01] Speaker 04:
it did not appear to have considered the appellant's contention that he experienced back problems, blah, blah, blah.

[00:01:07] Speaker 04:
So it seems like, at least at one point, they actually sent it back because they said, you've got to consider the appellant's contention.

[00:01:13] Speaker 02:
That's exactly right.

[00:01:14] Speaker 04:
And then fast forward, and we're here, and I understand that the last sentence in the opinion does refer to lay testimony and being not competent.

[00:01:23] Speaker 04:
The sentence before, and indeed a lot of what was said in this case, discredits the appellant's statements based on credibility.

[00:01:31] Speaker 04:
and not based on lack of technical confidence.

[00:01:34] Speaker 04:
If I'm right about that, then where is your argument that the board erred or the CABC erred?

[00:01:39] Speaker 02:
Sure.

[00:01:39] Speaker 02:
Look at Joint Appendix, page 32.

[00:01:41] Speaker 02:
This is where the error, this is the board opinion, and this is where the error is crystallized.

[00:01:46] Speaker 02:
And you can see it, and you can see a competency determination that was made.

[00:01:50] Speaker 02:
And I'll quote the pertinent language from the board's decision.

[00:01:54] Speaker 02:
This lay evidence does not constitute competent evidence and lacks probative value."

[00:01:59] Speaker 02:
That's the penultimate sentence.

[00:02:01] Speaker 04:
No, I understand that.

[00:02:02] Speaker 04:
But if you look at the paragraph that precedes that, it starts off, the board has not overlooked the veteran's contentions, but finds the contradictory nature of his statements cast out on his assertions that he suffered.

[00:02:13] Speaker 04:
And it goes on to talk about why they conclude that his statements, while considered, were just not credible.

[00:02:20] Speaker 04:
So is there something beyond?

[00:02:22] Speaker 04:
Is there something beyond the statements they're talking about here that he put forward and they rejected because it was incompetent or we're just talking about his statements as to when he was experiencing pain, et cetera?

[00:02:34] Speaker 02:
Just his statements for the lay testimony argument.

[00:02:36] Speaker 02:
The 5107 argument is separate, but for purposes of the lay testimony, yes.

[00:02:40] Speaker 04:
So what are we to make of, I understand, I appreciate what you're saying about that final paragraph, but

[00:02:47] Speaker 04:
What are we to make of the preceding paragraph?

[00:02:50] Speaker 04:
Would you not agree that they did write under your view of the law with respect to their consideration of the statement in the next to the last paragraph?

[00:02:59] Speaker 02:
No, I don't think so.

[00:03:00] Speaker 02:
I think the record shows that there is, at a minimum, significant confusion in the analysis.

[00:03:06] Speaker 02:
Competency is a threshold determination.

[00:03:08] Speaker 02:
Competency happens first.

[00:03:11] Speaker 02:
Credibility happens after.

[00:03:12] Speaker 03:
There's no doubt that there's some loose language in this opinion that is problematic.

[00:03:17] Speaker 03:
for purposes from a government standpoint and inconsistent with what we've said repeatedly about lay testimony.

[00:03:24] Speaker 03:
But having said that, the real question is the point that Chief Judge Crost has pointed out.

[00:03:31] Speaker 03:
Doesn't that make those loose statements essentially harmless error?

[00:03:34] Speaker 03:
In other words, if it's not credible anyway, why does it matter if they found it not to be confidential?

[00:03:42] Speaker 02:
I don't think that's what the opinion says.

[00:03:44] Speaker 02:
If you had a very clear alternative analysis, so here's the example where a harmless error might save this decision.

[00:03:50] Speaker 02:
If you had a decision that said, we don't find him credible, or we don't find him competent, or we do find him competent, you have a very clear competency determination made.

[00:03:58] Speaker 02:
And then you had in the alternative, even if he was competent, we find that he is incredible, that may preserve the decision.

[00:04:06] Speaker 02:
But we don't have that here.

[00:04:07] Speaker 02:
In fact, we have the exact opposite.

[00:04:09] Speaker 02:
How odd.

[00:04:10] Speaker 02:
What a strange analysis to talk about credibility in sort of a passing reference to credibility and then to talk about competency and to very clearly exclude.

[00:04:20] Speaker 02:
We have to take the language at face value.

[00:04:23] Speaker 02:
And the language says he is incompetent to testify about this.

[00:04:27] Speaker 01:
It also says, in short, his claim of experiencing chronic pain since entering his back in service is not found to be credible.

[00:04:36] Speaker 01:
So if we read the board's

[00:04:40] Speaker 01:
opinion, just based on its plain language, it made two separate findings.

[00:04:46] Speaker 01:
One, Mr. Jordan's testimony is not credible.

[00:04:50] Speaker 01:
Two, Mr. Jordan's testimony also, quote unquote, is not competent.

[00:04:57] Speaker 01:
So if we see those as two alternative findings for dismissing his testimony, why should we reach the legal question that you're raising, given that we have a fact finding

[00:05:08] Speaker 01:
that due to his contradictory statements, his testimony about long-term back pain is not credible.

[00:05:16] Speaker 02:
Sure.

[00:05:16] Speaker 02:
So a couple of responses.

[00:05:17] Speaker 02:
Number one, the court would have to be comfortable that that is what actually happened here.

[00:05:22] Speaker 02:
Let's assume that we think that's what happened here.

[00:05:26] Speaker 02:
Look at the court's decision in Buchanan.

[00:05:29] Speaker 02:
Chief Judge Prost, you wrote that decision.

[00:05:31] Speaker 02:
In that case, there was Merck below, just like we have Merck here.

[00:05:35] Speaker 02:
There was Merck as to credibility and Merck as to competency.

[00:05:38] Speaker 02:
and the court did not hesitate to reach the issue of competency to find that there was a misinterpretation of the law with respect to competency and reverse.

[00:05:47] Speaker 01:
So if you can't... I don't understand what the point is though if we find that, you know, this is a fact finding that we have to defer to, right, that we can't even touch.

[00:05:57] Speaker 01:
The board finding Mr. Jordan to not be credible.

[00:06:00] Speaker 01:
So what would the point be even if you were right and we were even to agree with you on the legal question

[00:06:08] Speaker 01:
whether his late testimony is competent, what would be the point of any kind of remand given the untouchable fact finding that he's not credible?

[00:06:17] Speaker 02:
I want to be very clear.

[00:06:18] Speaker 02:
We're not challenging the fact finding of credibility.

[00:06:21] Speaker 02:
We suggest that didn't happen, but we wouldn't challenge that because that's outside the court's jurisdiction under 7292.

[00:06:26] Speaker 02:
But look at the Pruitt case.

[00:06:28] Speaker 01:
No, no, I'm just trying to ask you as a

[00:06:31] Speaker 01:
Practical matter.

[00:06:32] Speaker 01:
That's right.

[00:06:32] Speaker 01:
What would be the point of sending this back?

[00:06:35] Speaker 02:
Sure.

[00:06:36] Speaker 02:
Under Pruitt, this court's unpublished decision in 2013, there was Merck in the record as to competency, the same kind of Merck here, and the court reversed and remanded because it said, we can't figure out what's going on here.

[00:06:48] Speaker 02:
And the error was the same error.

[00:06:50] Speaker 03:
Was that your position that because they made the mistake on competency that perhaps the credibility determination would not have been enough in the board's view

[00:07:00] Speaker 03:
had they not also thought he was incompetent.

[00:07:03] Speaker 02:
That's right.

[00:07:04] Speaker 02:
If there was a problem at the threshold, then there's absolutely no way to suggest that that threshold problem didn't affect something on credibility.

[00:07:13] Speaker 04:
Can I ask you to just step back a minute?

[00:07:15] Speaker 02:
Yes.

[00:07:17] Speaker 04:
Their statement on confidence, I mean, doesn't a lot depend on what he was trying to put forward here?

[00:07:22] Speaker 04:
I mean, we're talking about whether there's an in-service connection.

[00:07:26] Speaker 04:
But he didn't put forward testimony about

[00:07:32] Speaker 04:
a medical kind of testimony, right?

[00:07:34] Speaker 04:
He wasn't trying to get anything in other than, I got hurt here, I felt badly in this year, right?

[00:07:40] Speaker 04:
That was the sum and substance of his testimony.

[00:07:42] Speaker 04:
That's right.

[00:07:43] Speaker 04:
So when you even look at this paragraph at the end, it sounds like this has no relationship to anything.

[00:07:49] Speaker 04:
He wasn't trying.

[00:07:51] Speaker 04:
What it says is, it seems like a canned paragraph that somebody stuck in here because it said he doesn't have the training to render a diagnosis or an opinion of medical causation.

[00:08:02] Speaker 04:
Well, whether that's right or wrong as a matter of law, whether it should have been excluded on that basis, he wasn't trying to render an opinion, right?

[00:08:11] Speaker 04:
His late testimony had to do with just what happened when.

[00:08:14] Speaker 04:
And that's what they're talking about in terms of his credibility.

[00:08:18] Speaker 04:
So I'm having a hard time seeing how this, even if it's wrong, renders any harm because even if they were right, for example,

[00:08:29] Speaker 04:
and that he couldn't do it, it has no consequence to this case because that's not the kind of testimony he was trying to render.

[00:08:35] Speaker 02:
Well, the court is correct in that he was not trying to opine as to etiology or to diagnosis, which makes this even more wrong.

[00:08:46] Speaker 02:
There should be no discussion of this kind of analysis in this case.

[00:08:50] Speaker 02:
As the court pointed out, he was simply trying to talk about the continuity of symptoms when he experienced his low back pain.

[00:08:58] Speaker 02:
And if you look at the court's analysis, the court has been very clear, and under 1154 and 3.303, and Jan Rowe, and Buchanan, and all the precedents, it's very clear that the secretary must give due consideration to these statements.

[00:09:10] Speaker 02:
And even for etiology, even for issues like diagnosis, there are times when a veteran's lay testimony can be sufficient.

[00:09:18] Speaker 04:
Yeah, but what is that guy doing with this case?

[00:09:20] Speaker 02:
Well, he was merely trying to describe.

[00:09:22] Speaker 02:
He was doing something far less.

[00:09:28] Speaker 02:
I don't sort of easier to describe what he was doing.

[00:09:31] Speaker 02:
And yet there's a competency determination involved.

[00:09:33] Speaker 02:
What does that have to do with anything?

[00:09:35] Speaker 02:
I agree with the point.

[00:09:36] Speaker 02:
It shouldn't be in here.

[00:09:37] Speaker 02:
It doesn't make any sense when he is just trying to speak to issues of describing his symptoms.

[00:09:43] Speaker 04:
What, what issues, what, which of his statements, which were not w w would have been included if they hadn't said that.

[00:09:51] Speaker 04:
that were necessarily excluded under the credibility.

[00:09:54] Speaker 04:
It seems to me their analysis of credibility, again, rightly or wrongly, gets rid of everything he was trying to put forward in terms of lay testimony.

[00:10:04] Speaker 04:
So that's probably because of credibility.

[00:10:06] Speaker 02:
Well, he was trying to speak to Nexus, right?

[00:10:08] Speaker 04:
Which is the only issue we're talking about.

[00:10:10] Speaker 02:
It's the only issue in the case.

[00:10:11] Speaker 02:
He had an in-service disability, and he has a present disability.

[00:10:14] Speaker 02:
So the only issue at issue is the Nexus.

[00:10:16] Speaker 02:
And he was trying to give testimony to provide support for the Nexus

[00:10:21] Speaker 02:
piece of the three-part test on the ship.

[00:10:24] Speaker 04:
But it wasn't to establish anything medical.

[00:10:26] Speaker 04:
It was just, this happened to me when, and this is when I started experiencing pain.

[00:10:30] Speaker 04:
And clearly they considered that evidence.

[00:10:33] Speaker 04:
Wasn't that the same evidence that the case was actually sent back because they said it's not clear to us that you considered everything he said and we want you to consider it?

[00:10:42] Speaker 02:
Well, it was sent back for purposes of a new medical examination because the medical examiner had not fully and accurately analyzed the record.

[00:10:51] Speaker 03:
But I think this is... Then they still didn't satisfy the remand order because they never did do a current diagnosis.

[00:10:56] Speaker 02:
That's right.

[00:10:57] Speaker 02:
And we don't challenge that on appeal.

[00:10:59] Speaker 02:
That is in the Veterans Court's decision.

[00:11:00] Speaker 02:
We're not quibbling with that finding.

[00:11:03] Speaker 04:
No, but it said when they remanded it, they said, because the examiners do not appear to have considered the appellant's contention and he experienced back problems since the in-service incident.

[00:11:14] Speaker 04:
So wasn't that point of remand?

[00:11:19] Speaker 02:
Yeah, I don't dispute that, but I don't think that gets to a point where the language in the board opinion on remand that makes a competency determination.

[00:11:30] Speaker 02:
The same kind of thing that happened in Buchanan, the same kind of thing that happened in Pruitt, where this court remanded for fear that the secretary is categorically excluding lay testimony for purposes of much higher things, things like etiology and causation.

[00:11:46] Speaker 02:
Here you have something far less than that.

[00:11:49] Speaker 04:
Before your time runs out, do you want to spend a couple of minutes on your second question?

[00:11:53] Speaker 02:
I'd be happy to.

[00:11:54] Speaker 02:
Thank you.

[00:11:55] Speaker 02:
So as to the 5107, the benefit of the doubt rule, this is the Sandlot baseball rule.

[00:12:00] Speaker 02:
Tie goes to the runner.

[00:12:01] Speaker 02:
The tie goes to the veteran.

[00:12:03] Speaker 02:
In this case, I want to sort of trace the arc of the error.

[00:12:08] Speaker 02:
Look at Joint Appendix 72.

[00:12:09] Speaker 02:
That's the examiner's opinion.

[00:12:12] Speaker 02:
You first see the error in Joint Appendix 72.

[00:12:17] Speaker 02:
The statement is the current disability is only at least as likely as not due to his post-service injuries.

[00:12:25] Speaker 02:
If something is only at least as likely as not due to post-service injuries, then it's also true that it's at least as likely as not due to his in-service injuries.

[00:12:34] Speaker 02:
Did the Veterans Court reach this issue?

[00:12:37] Speaker 02:
The Veterans Court did.

[00:12:38] Speaker 02:
This was raised below.

[00:12:40] Speaker 02:
But did it discuss this issue?

[00:12:45] Speaker 01:
The 5107 was discussed.

[00:12:47] Speaker 01:
No, the benefit that doubt rule.

[00:12:49] Speaker 01:
Was it actually addressed by the Veterans Court?

[00:12:54] Speaker 01:
I don't think it was.

[00:12:56] Speaker 01:
I don't think it was because I didn't see anywhere in your briefing where this issue was raised to the Veterans Court.

[00:13:01] Speaker 02:
Right.

[00:13:01] Speaker 02:
So let me point you to Joint Appendix 1155 and 1156.

[00:13:05] Speaker 02:
This issue was raised below.

[00:13:08] Speaker 02:
Had I had the privilege of being counseled below, I might have raised it more artfully.

[00:13:12] Speaker 02:
but it was raised in the Veterans Court, more importantly, at Joint Appendix 9, quoted this very language.

[00:13:18] Speaker 02:
Again, trace the arc of this error.

[00:13:20] Speaker 02:
The language appears at each step in the process.

[00:13:23] Speaker 01:
So where at 1155, 1156?

[00:13:25] Speaker 01:
Could you quote me?

[00:13:27] Speaker 01:
I know you cited this in your brief, but what would be the best quotable quote that would show the Veterans Court that, in fact, Mr. Jordan was challenging the misapplication of the benefit of the doubtful from the statute?

[00:13:45] Speaker 02:
I think, let me give you 1163 as well, that's actually the brief citation.

[00:14:20] Speaker 02:
How about I provide that information on rebuttal so that I don't do that.

[00:14:25] Speaker 02:
But in any event, you can see this error that goes through all this language, this clear misinterpretation of the benefit of the doubt rule that suffuses this decision.

[00:14:36] Speaker 02:
There's no way to distract from it.

[00:14:38] Speaker 02:
There's no way to write around it.

[00:14:39] Speaker 02:
There's no way to discount it.

[00:14:42] Speaker 02:
It appears in the Veterans Court's decision.

[00:14:44] Speaker 02:
It appears in the Board's decision.

[00:14:45] Speaker 02:
It appears in the regional office decision.

[00:14:47] Speaker 02:
And it appears in the examiner's opinion.

[00:14:50] Speaker 02:
We'll restore a few minutes for rebuttal.

[00:14:51] Speaker 04:
Thank you.

[00:14:56] Speaker 00:
Good morning, and may it please the court.

[00:14:58] Speaker 00:
This court lacks jurisdiction to consider the merits of Mr. Jordan's arguments, which challenge the application of law to fact.

[00:15:06] Speaker 00:
I'll start first with the lay evidence issue.

[00:15:09] Speaker 03:
Well, as to lay evidence.

[00:15:11] Speaker 03:
We consider that issue constantly, and we constantly remind the board that they're getting it wrong and that lay evidence is competent evidence.

[00:15:20] Speaker 03:
So how would we not have jurisdiction to review that if, in fact, they found his testimony not competent?

[00:15:26] Speaker 00:
Because, Your Honor, in part because the board recognized that rule applied here.

[00:15:32] Speaker 00:
The board indicated very clearly in its discussion of the relevant legal principles, citing the decision of Buchanan and Jandro and Davidson,

[00:15:41] Speaker 00:
and that there is a need to consider the lay evidence and the medical evidence.

[00:15:45] Speaker 00:
And that is at page JA24 and 25.

[00:15:48] Speaker 00:
The board, and I'll quote from the board's decision at JA24, the board noted that it was directed to assess both medical and lay evidence.

[00:15:57] Speaker 00:
It went on to say, citing Davidson, that in certain circumstances, lay evidence may be sufficient to establish medical diagnosis.

[00:16:04] Speaker 03:
But then it went on to say that in these circumstances, it's not competent.

[00:16:09] Speaker 03:
When all he's talking about is how long he's experienced back pain, how can he not be competent to say that?

[00:16:17] Speaker 00:
Well, Your Honor, there are two paragraphs on that page of the board's decision, one of which, as the court's questions have gotten to, relates to the question of the credibility of the evidence.

[00:16:28] Speaker 03:
Well, we can get to that later, because that's the question of whether or not there might be harmless error here.

[00:16:33] Speaker 03:
But clearly, there's error in saying that he's not competent to testify as to how long he's experienced back

[00:16:39] Speaker 00:
Well, what the board specifically said is not that lay evidence can never be competent evidence.

[00:16:46] Speaker 00:
And that is the problem under the court's precedent is a categorical statement.

[00:16:50] Speaker 00:
Counsel referred to the Buchanan decision.

[00:16:53] Speaker 00:
Where the board has gotten in trouble is where it says that categorically lay evidence may not be sufficient to establish a diagnosis or causation.

[00:17:00] Speaker 00:
The board did not do that in this instance.

[00:17:02] Speaker 00:
Well, it did find this particular testimony not competent, correct?

[00:17:07] Speaker 00:
It did say that it was not competent.

[00:17:09] Speaker 01:
And when it said it's not competent, that means it's dismissing it out of hand, right?

[00:17:14] Speaker 01:
That it's not giving the testimony of Mr. Jordan any weight.

[00:17:19] Speaker 01:
Is that a fair understanding of what the board did when it said the evidence is not competent?

[00:17:25] Speaker 01:
It is a fair understanding, I think, in terms of what the board found in respect of the... And why is it that it can... I mean, if the board wanted to say, we don't give his testimony

[00:17:37] Speaker 01:
as significant a weight as the counter physician testimony.

[00:17:42] Speaker 01:
That's fine.

[00:17:43] Speaker 01:
But how can it say that it can dismiss the lay testimony completely out of hand as not competent when we have case after case that says you have to consider it?

[00:17:56] Speaker 00:
Well, Your Honor, the board did consider the lay evidence.

[00:17:59] Speaker 00:
What makes this case different and what makes this case like the King case

[00:18:04] Speaker 00:
is that the board, notwithstanding what it said, in fact, what the board said in King is very similar to what the board said here in terms of the language of the board's decision, saying it's not competent, it lacks probative value.

[00:18:14] Speaker 00:
But what made King different from Buchanan and Jandro, et cetera, was the board did consider the late evidence.

[00:18:20] Speaker 00:
And that's what the board did here.

[00:18:22] Speaker 00:
So notwithstanding what it said.

[00:18:23] Speaker 03:
Well, why doesn't the board just stop saying these ridiculous things and actually look at the evidence?

[00:18:28] Speaker 03:
and then assess it.

[00:18:30] Speaker 03:
Why do they have to always repeatedly say that it's not competent when we've repeatedly told them that it is?

[00:18:36] Speaker 00:
Well, Your Honor, I surely don't know the answer to that question.

[00:18:39] Speaker 00:
What I can say is with respect to the board's decision in this case, the remand that the Chief Judge referred to is important because, first of all, if you look at the record at JA-101, when the board remanded for an additional VA medical examination, it specifically asked the VA medical examiner to consider the competent contentions

[00:18:58] Speaker 00:
by the veteran.

[00:19:00] Speaker 00:
And this is the same judge that issued the board decision in 2013 that we're talking about.

[00:19:05] Speaker 00:
What that suggests is that the board understood that lay evidence may be competent in certain situations.

[00:19:11] Speaker 00:
And in this board decision that we're talking about, the board did consider his testimony to be competent.

[00:19:18] Speaker 00:
But on a different question of causation, it considered it competent on the question of continuity of the symptoms.

[00:19:24] Speaker 00:
And that's what counsel has suggested.

[00:19:25] Speaker 03:
Of course, I'm not so sure how there's

[00:19:28] Speaker 03:
how they're different in the sense that if you're trying to figure out what caused a back injury, if the symptoms were continuous from the first injury through any later injuries, that does relate to causation, does it not?

[00:19:43] Speaker 00:
It does, Your Honor, but there are different ways of proving service connection, and one of them is under the regulations, and there's 38 CFR 3.307A, where if you have a chronic disease, such as an arthritis type of disease,

[00:19:57] Speaker 00:
and it showed to have continuous symptoms, that is an independent way of proving nexus.

[00:20:02] Speaker 00:
And the board in this decision was considering that question with respect to arthritis.

[00:20:07] Speaker 00:
So that is another way of looking at whether or not service connection can be proven.

[00:20:12] Speaker 00:
So in our view, that page on JA 31 of the board's decision, when it's considering his contentions, these contentions relate to his position, his statement that

[00:20:22] Speaker 00:
My symptoms are continuous over a period of time.

[00:20:25] Speaker 01:
Well, let me see if I can understand this with a hypothetical.

[00:20:29] Speaker 01:
What if the veteran during his service was in combat, was in some kind of firefight and experienced a very bad fall?

[00:20:38] Speaker 01:
And up until that point, the veteran had a very healthy back.

[00:20:42] Speaker 01:
But ever since that day, he experienced back pain.

[00:20:46] Speaker 01:
And ever since that day, he never had a good night's sleep because of the back pain.

[00:20:52] Speaker 01:
And then he seeks benefits and says, I've had bad lower back pain for several years in a row ever since my time in service due to this bad fall.

[00:21:04] Speaker 01:
And I haven't been able to get a good night's sleep and I'm taking Advil every single day of my life.

[00:21:12] Speaker 01:
And then the board said, well, Mr. Veteran, you're not a doctor.

[00:21:17] Speaker 01:
You've had no medical training.

[00:21:19] Speaker 01:
And so your lay testimony is not competent evidence.

[00:21:25] Speaker 01:
And therefore, we give it no weight as to medical diagnosis or medical causation.

[00:21:33] Speaker 01:
Would you think that that's appropriate?

[00:21:35] Speaker 00:
No, that would be a problem.

[00:21:36] Speaker 00:
Because under the court's precedent.

[00:21:38] Speaker 00:
But that's not the facts that we have here.

[00:21:39] Speaker 00:
But under the court's precedent.

[00:21:40] Speaker 01:
I know that's not the facts we have here.

[00:21:42] Speaker 01:
But it feels pretty similar to what we have here.

[00:21:45] Speaker 00:
Well, Your Honor, the reason I

[00:21:47] Speaker 00:
This case is different from the hypothetical that you're describing is because the board did consider the lay statements and the continuity of the symptoms that he was alleging occurred over time.

[00:21:57] Speaker 00:
And this was not a categorical exclusion.

[00:21:59] Speaker 00:
Again, the problem that was described in the Buchanan case and very clearly in Davidson was where the board had somehow suggested that lay evidence could not be competent because it was lay evidence.

[00:22:11] Speaker 00:
The sentence that Mr. Jordan is zeroing in on

[00:22:14] Speaker 00:
says this lay evidence.

[00:22:16] Speaker 00:
It's Mr. Jordan's lay evidence.

[00:22:18] Speaker 00:
And what the court recognized in Jandereau was that the board, as the fact finder, can make a determination as to competence.

[00:22:26] Speaker 00:
And lay evidence may or may not be competent.

[00:22:28] Speaker 03:
But you couldn't get more categorical.

[00:22:31] Speaker 03:
All they're doing is talking about the extent to which they have suffered back problems and back pain over the course of years for them to say that that particular evidence is not competent evidence.

[00:22:43] Speaker 03:
is akin to saying, no, lay evidence is competent evidence.

[00:22:48] Speaker 03:
How can you distinguish between a categorical finding of lay evidence being not competent and this kind of lay evidence, which seems to be the most obviously competent lay evidence, not being competent?

[00:23:02] Speaker 00:
Well, Your Honor, in the court's decision at JA 31, in the same paragraph, it refers to the fact that he did not have the training, the expertise to render an opinion

[00:23:11] Speaker 00:
regarding musculoskeletal disorders.

[00:23:14] Speaker 00:
So the board is recognizing, is not making an across the board statement about lay evidence in every particular case or every given case.

[00:23:22] Speaker 00:
It is talking about competence as applied to these facts.

[00:23:26] Speaker 00:
That's what makes this decision controlled by King.

[00:23:29] Speaker 03:
I think you're hurting yourself more than you're helping yourself because frankly, this is a silly argument.

[00:23:34] Speaker 03:
Musculoskeletal, I mean, what more easily could you see a lay person being able to testify to?

[00:23:41] Speaker 03:
Why don't you just concede that there is a problem with the board's competency finding, but that the credibility finding renders that harmless?

[00:23:52] Speaker 03:
I don't understand why you're trying to defend this.

[00:23:54] Speaker 00:
Well, Your Honor, our position is that the board applied the appropriate legal standard and that the King decision is directly on point.

[00:24:04] Speaker 00:
And what happened in King, and it's harmless error may be another way of looking at it,

[00:24:08] Speaker 00:
In effect, what was being challenged there was the application of law to fact.

[00:24:12] Speaker 00:
And that is the appropriate resolution, according to the government in this case, is that because it's the application of law to fact, the court does not have jurisdiction to review it under 7292.

[00:24:20] Speaker 00:
Now, whether or not the board could have described its reasoning better, I agree with Your Honor that there is some loose language in the court's decision.

[00:24:29] Speaker 00:
But you ultimately come down to, and below, that the issue was whether there was an adequate statement of the reasons or bases for the board's decision.

[00:24:36] Speaker 00:
And the Veterans Court found that

[00:24:38] Speaker 00:
rejected that argument.

[00:24:40] Speaker 00:
But that's not the argument that's being made here.

[00:24:41] Speaker 04:
Is your reading of this paragraph, I mean, what the board starts off by talking in this final paragraph is talking about his credentials to render a diagnosis or a competent opinion as to medical causation.

[00:24:56] Speaker 00:
Did he do any of those?

[00:24:57] Speaker 00:
No, Your Honor, and this gets to your question.

[00:24:59] Speaker 04:
And so when they say this lay evidence, are you saying that they're talking about in theory

[00:25:06] Speaker 04:
lay evidence that tries to render a diagnosis or a competent opinion is not competent, but essentially, are you telling us that that has nothing to do with this case because his lay evidence was not of this nature and that's why they considered it?

[00:25:22] Speaker 00:
Well, Your Honor, it's unclear in terms of what this lay evidence is referred to.

[00:25:26] Speaker 00:
I think the fairest reading of that paragraph is that it's referring to the same statements that we've been talking about, the ones where he says,

[00:25:33] Speaker 00:
I've had ongoing symptoms, things of this nature.

[00:25:35] Speaker 00:
But there's no question, as counsel noted, Mr. Jordan never said, I have a medical opinion and I'm trying to offer some testimony about my diagnosis.

[00:25:46] Speaker 04:
Do you want to turn to the next question?

[00:25:48] Speaker 00:
Yes, Your Honor.

[00:25:49] Speaker 00:
be happy to, on the benefit of the doubt rule.

[00:25:51] Speaker 04:
Yeah, that sentence is not a good sentence, right?

[00:25:53] Speaker 04:
I mean, one can say everything at some level is mush, but that sentence really points you in the direction that we are talking about, equipoise.

[00:26:03] Speaker 00:
Well, no, Your Honor, respectfully, the board's decision did not find that the evidence was in equipoise.

[00:26:09] Speaker 00:
And of course, that benefit of the doubt rule is triggered when you have an approximate balance of the evidence.

[00:26:14] Speaker 00:
What the board stated on JA21 is that the preponderance of the evidence fails to establish a service connection.

[00:26:21] Speaker 00:
And on JA34, it noted in the same page that we were looking at that it had considered the benefit of the Dow rule, but found that the preponderance of the evidence was against the issue.

[00:26:32] Speaker 00:
The board did not misinterpret the statute or that rule.

[00:26:37] Speaker 00:
And the language that Mr. Jordan is focusing on is a statement made by the medical examiner, not by the board.

[00:26:44] Speaker 00:
And so what the board did was it simply recounted what the medical examiner said.

[00:26:50] Speaker 04:
We're dealing with different page numbers.

[00:26:52] Speaker 04:
I'm sorry.

[00:26:52] Speaker 04:
Can you tell me, point to me what the board decision, where are you looking?

[00:26:58] Speaker 00:
On JA 31 of the board's decision, this is the portion that Mr. Jordan says.

[00:27:10] Speaker 04:
They quote the examiner.

[00:27:11] Speaker 04:
The examiner believed.

[00:27:13] Speaker 00:
Right.

[00:27:14] Speaker 00:
So what the board is talking about is what the examiner believed.

[00:27:18] Speaker 00:
And the examiner doesn't find facts.

[00:27:21] Speaker 00:
Of course, the board does.

[00:27:22] Speaker 00:
And the board, if you look at the examiner's decision, this will become even more clear on JA 72, counsel referred to that page.

[00:27:30] Speaker 00:
The VA medical examiner was asked to fill out a questionnaire and the VA medical examiner checked a box that said the client condition was less likely than not, less than 50% probability.

[00:27:43] Speaker 00:
incurred in or caused by the in-service injury.

[00:27:46] Speaker 00:
That's a JA-72.

[00:27:48] Speaker 00:
And the medical examiner's report that Mr. Jordan focuses on says very clearly that her opinion was that the low back condition with residual is not caused by or the results were aggravated by activities in military service, but is rather at least as likely as not due to

[00:28:13] Speaker 00:
intervening work-related injuries.

[00:28:15] Speaker 00:
In other words, the doctor is saying that there's no service connection, but it's at least as likely as not due to these post-service work injuries.

[00:28:26] Speaker 00:
But the doctor was allowing for the possibility that there may be some other reason besides these work injuries that may have caused his current disability.

[00:28:36] Speaker 00:
But that's far and apart from saying that the evidence is in equipoise.

[00:28:40] Speaker 00:
Two more points on that topic.

[00:28:43] Speaker 00:
as counsel indicated, or referred to portions of the record, there is, this argument was not raised below, and accordingly it was waived.

[00:28:52] Speaker 00:
The benefit of the doubt argument was not raised below.

[00:28:54] Speaker 00:
And there's also a jurisdictional problem.

[00:28:56] Speaker 00:
If you look at the board's decision, it very clearly says the benefit of the doubt rule applies for the evidences in equipoise or approximate balance.

[00:29:04] Speaker 00:
It recognized the appropriate legal standard.

[00:29:06] Speaker 00:
And then it noted that at JA25 of its decision.

[00:29:13] Speaker 00:
Thank you very much.

[00:29:20] Speaker 04:
Thank you.

[00:29:20] Speaker 04:
I'll give you three minutes.

[00:29:23] Speaker 02:
Thank you.

[00:29:23] Speaker 02:
So going back to the 5107, Judge Chen, your question about the best language, I'd direct you to Joint Appendix 9, which is the veteran court's decision that relies on this language.

[00:29:35] Speaker 02:
And under the court's precedence in cases like Chandler, we cite these cases on our brief.

[00:29:39] Speaker 04:
Wait, can you just tell us what

[00:29:41] Speaker 02:
Looking at JA9, the last sentence on JA9, based on a comprehensive review.

[00:29:48] Speaker 02:
Do you see that sentence?

[00:29:49] Speaker 02:
And if you look at the court's precedents in Chandler and Forshee, a reliance on a misinterpretation below is sufficient to preserve the issue.

[00:29:59] Speaker 02:
And in particular, when it's the only issue in the case, this is only about nexus.

[00:30:04] Speaker 02:
And this is a critical issue that was raised at all of these points along the

[00:30:09] Speaker 02:
the adjudicatory process from the examiner all the way through.

[00:30:13] Speaker 02:
Now, the secretary argues that, well, a box was checked.

[00:30:18] Speaker 02:
And there's boilerplate language in the opinion.

[00:30:21] Speaker 02:
And that means that everything's right.

[00:30:22] Speaker 02:
And that's wrong.

[00:30:24] Speaker 04:
I don't know.

[00:30:24] Speaker 04:
But you're saying that's one reference in the CAVC opinion.

[00:30:28] Speaker 04:
What?

[00:30:28] Speaker 04:
Indicates to us that it was something that was adjudicated or challenged before or dealt with by the CAVC?

[00:30:34] Speaker 02:
Well, it was clearly relied on by the... The argument is that it was relied on by the Veterans Court.

[00:30:41] Speaker 02:
It was part of the decision.

[00:30:42] Speaker 02:
And because of that, this court, in exercising its review function, can address that issue.

[00:30:48] Speaker 02:
I mean, the standard is sort of fair notice here.

[00:30:51] Speaker 02:
It is not an exacting standard.

[00:30:53] Speaker 02:
And when the only issues in the case involve the lay testimony and this benefit of the doubt rule, when those are the core issues on nexus,

[00:31:02] Speaker 02:
We think that the court should exercise its review of these issues.

[00:31:07] Speaker 02:
So this notion that boilerplate and Merck and checking boxes shows that there was no error, the court should reject that.

[00:31:15] Speaker 02:
A competency determination was made where there was no business to make a competency determination.

[00:31:20] Speaker 02:
A clear error of one of the most simple tenets of veteran's law, Section 5107's benefit of the doubt rule, happened in this case.

[00:31:30] Speaker 02:
Now, this is the 10-year anniversary of Buchanan and of Jandro and of cases like that.

[00:31:36] Speaker 02:
It's also the 10-year anniversary of Mr. Jordan filing his claim for benefits in this case.

[00:31:41] Speaker 02:
And the secretary is still getting this wrong.

[00:31:44] Speaker 02:
In cases like Robinson and Assad, the court can see where the secretary got it right or got it right because this court reversed and remanded and said, you have to get it right.

[00:31:55] Speaker 02:
And we asked this court to set the record straight here once again.

[00:31:59] Speaker 02:
and make the secretary follow the court's precedents.

[00:32:03] Speaker 02:
For those reasons, we ask the court to reverse.

[00:32:06] Speaker 02:
Thank you.

[00:32:07] Speaker 04:
Thank you.

[00:32:08] Speaker 04:
We thank both counsel and the cases.