[00:00:00] Speaker 04:
Mr. Carpenter, are you set to go?

[00:00:02] Speaker 04:
You reserve five minutes of your time, I see.

[00:00:05] Speaker 03:
I am, sir.

[00:00:07] Speaker 03:
Okay.

[00:00:07] Speaker 03:
May I please support?

[00:00:09] Speaker 03:
Carpenter bearing on behalf of Mr. Charles Cage.

[00:00:13] Speaker 03:
This case deals with a question of regulatory interpretation, specifically 38 CFR 3004F, in its general term, not in its five subsection, which provides for a specific section for the general term.

[00:00:30] Speaker 03:
Specifically, this regulation does not say that an award of service connection for post-traumatic stress disorder must be based upon credible evidence from the veteran.

[00:00:40] Speaker 03:
Instead, what 3.304F does impose is a unique and very specific evidentiary standard upon those veterans who seek through other events.

[00:00:53] Speaker 04:
Mr. Carpenter, at the end of the day, aren't you just asking us to reweigh a factual determination that's already been made?

[00:01:01] Speaker 03:
because what I'm asking this court to do is determine whether as a matter of law, when the VA wrote this regulation, whether the third prerequisite for service connection on the general basis, not on the five specific bases, does or doesn't constitute an evidentiary burden.

[00:01:18] Speaker 03:
It specifies in its own language that the veteran must submit credible supporting evidence that the claim in-service stressor occurred.

[00:01:28] Speaker 03:
It doesn't

[00:01:30] Speaker 03:
depend upon the veterans.

[00:01:32] Speaker 04:
But it considered evidence, correct?

[00:01:35] Speaker 04:
It considered evidence.

[00:01:37] Speaker 04:
It considered the two different incidents where the claimant is saying that the stress has occurred.

[00:01:46] Speaker 04:
That he was stabbed in the helicopter incident.

[00:01:50] Speaker 04:
So your client was able to present evidence

[00:01:54] Speaker 03:
as to those two different circumstances.

[00:02:13] Speaker 03:
In one case, a woman who claims to have witnessed the stabbing or been there around the time of the stabbing and the newspaper report of the helicopter crash.

[00:02:23] Speaker 03:
Those substantiate that, in fact, the events described by the veteran that were adopted by the medical evidence which supported the diagnosis and which linked the symptoms which Mr. Case has to the in-service event as attributed.

[00:02:42] Speaker 03:
were related, that they were linked together.

[00:02:45] Speaker 03:
They depended upon the description of the event.

[00:02:49] Speaker 03:
Not Mr. That's last section does not depend upon Mr. Cage.

[00:02:55] Speaker 03:
It depends on other supporting credible evidence.

[00:02:59] Speaker 03:
And it asked for this because every one of the other subsections rely upon the veteran's statement

[00:03:09] Speaker 03:
or under subsection one, an actual diagnosis while on active duty, or under subsection five, evidence other than from the veteran that supports that the event took place in terms of the sexual assault.

[00:03:24] Speaker 03:
The middle three all allow for the veteran's lay testimony.

[00:03:29] Speaker 01:
And if this were any of those other considerations... Isn't this still, I'm sorry to interrupt you, but isn't this still about whether there

[00:03:38] Speaker 01:
acclaimed in-service stressor occurred.

[00:03:41] Speaker 01:
Yes, Your Honor.

[00:03:42] Speaker 01:
And whether something happened or not is a factual question.

[00:03:48] Speaker 03:
I do not believe so, as this regulation is what... I find that hard to understand.

[00:03:54] Speaker 01:
I mean, the regulation suggests, particularly because it's talking about evidence, and evidence is used to establish facts.

[00:04:04] Speaker 01:
And so if what this is talking about is submission of evidence to show a fact, then whether that fact was shown or not is a question that's reviewed for clear error.

[00:04:15] Speaker 01:
It's not a de novo legal question.

[00:04:17] Speaker 03:
If the fact were dispositive of the entitlement, the fact is not dispositive of the entitlement.

[00:04:24] Speaker 03:
The fact that it is dispositive is whether or not the event took place.

[00:04:28] Speaker 03:
Did it happen?

[00:04:29] Speaker 03:
In the words of the regulation,

[00:04:32] Speaker 03:
that the claimed inservice dresser occurred, happened.

[00:04:38] Speaker 03:
The newspaper article in this case substantiates that the event happened.

[00:04:43] Speaker 04:
No, but it doesn't substantiate that your client suffered the stress as a result of the event.

[00:04:50] Speaker 04:
The newspaper article establishes that the event occurred at a certain time and the testimony of your client says it occurred at a time

[00:05:03] Speaker 04:
His time is about two to three hours later than the newspaper.

[00:05:07] Speaker 04:
So the newspaper account did not support that there was a stress-related event.

[00:05:14] Speaker 03:
With respect, Your Honor, that's not relevant under this regulation.

[00:05:18] Speaker 03:
What's relevant under this regulation is do the three prerequisites tie together?

[00:05:24] Speaker 03:
that lay evidence of the veteran is relevant to the diagnosis.

[00:05:28] Speaker 01:
Wait, wait.

[00:05:29] Speaker 01:
I think I now understand what you're arguing.

[00:05:31] Speaker 01:
But I mean, if it is, you're still not going in with me.

[00:05:35] Speaker 01:
But are you saying that this regulation, we're talking about prong two, right?

[00:05:40] Speaker 01:
That credible supporting evidence that a claim in-service stressor occurred.

[00:05:44] Speaker 03:
Actually, I think it was prong three.

[00:05:45] Speaker 01:
Well, it's probably in the wrong order in my memo.

[00:05:48] Speaker 01:
But whatever.

[00:05:48] Speaker 01:
It doesn't really matter.

[00:05:49] Speaker 01:
But that's the language we're talking about.

[00:05:51] Speaker 01:
You're saying that all they have to show is

[00:05:54] Speaker 01:
that a stressor, an event that might be a stressor occurred, not that that stressor impacted the veteran.

[00:06:02] Speaker 03:
That's correct, Your Honor.

[00:06:03] Speaker 01:
But isn't that the whole point of establishing a stressor, that the stressor is what caused the PTSD?

[00:06:09] Speaker 01:
I mean, if a stressor, if an event occurs that, you know, if a veteran is sitting in a base in Alabama and there's an attack in Afghanistan,

[00:06:23] Speaker 01:
That happened in Afghanistan.

[00:06:25] Speaker 01:
It could be a stressor, but the soldiers sitting in Alabama didn't suffer from that stressor.

[00:06:33] Speaker 03:
Your Honor, with all due respect, that misconstrues the structure of this regulation.

[00:06:39] Speaker 03:
The three prongs are first, that the evidence establishes by medical evidence a diagnosis of post-traumatic stress disorder.

[00:06:48] Speaker 03:
That diagnosis

[00:06:50] Speaker 03:
cannot happen from a mental health professional without reliance upon what the veteran says happened, what his personal subjective reaction was.

[00:07:02] Speaker 03:
The second element is whether or not there is a link between the veteran's symptoms of this condition and the in-service stressor.

[00:07:12] Speaker 04:
How did that not happen here?

[00:07:14] Speaker 04:
It sounds to me like you're reciting exactly what happened in this case.

[00:07:20] Speaker 03:
What the board did was to attack the credibility of Mr. Kayes.

[00:07:25] Speaker 03:
They said that Mr. Kayes was not credible.

[00:07:28] Speaker 03:
But Mr. Kayes' credibility was necessarily recognized by the medical evidence in this case.

[00:07:35] Speaker 03:
The only thing that is missing is the occurrence of the event.

[00:07:40] Speaker 00:
Can I just ask?

[00:07:42] Speaker 00:
I don't think I quite understood what you

[00:07:47] Speaker 00:
are saying in the terms you're now saying it until you responded to Judge Hughes.

[00:07:53] Speaker 00:
I take it that you say that this particular component, the third component or the second component, the credible sporting evidence that the claimed in-service dresser occurred, is did some event happen without regard to whether the veteran was anywhere nearby?

[00:08:10] Speaker 00:
That's correct.

[00:08:12] Speaker 00:
Well, that's what I'm trying to figure out.

[00:08:14] Speaker 00:
So which of those

[00:08:17] Speaker 00:
to can it be?

[00:08:18] Speaker 00:
The first is medical evidence diagnosing the condition.

[00:08:23] Speaker 00:
That has nothing to do with it.

[00:08:26] Speaker 03:
The diagnosis of post-traumatic stress disorder cannot happen without there being an event that causes a traumatic reaction to the veteran to support that diagnosis.

[00:08:39] Speaker 00:
I guess I want to understand that the first is

[00:08:43] Speaker 00:
medical evidence diagnosing the condition in accordance with 4.125A of this chapter, and then the second is a link established by medical evidence between current symptoms and an in-service stressor.

[00:08:55] Speaker 00:
A doctor is not going to testify about when this guy was in the Patuxent River.

[00:09:00] Speaker 00:
No, of course he's not.

[00:09:00] Speaker 00:
Okay, so it can't be there.

[00:09:02] Speaker 00:
Where in this three-part test is the veteran's connection to the event established?

[00:09:12] Speaker 00:
It can only be in the third thing.

[00:09:16] Speaker 03:
But it doesn't say that there is a relationship.

[00:09:20] Speaker 03:
It says there's credible supporting evidence that the claim stressor occurred.

[00:09:25] Speaker 00:
4.125A of this chapter says what?

[00:09:29] Speaker 03:
That refers to the requirement for a diagnosis under the APA criteria for diagnosis.

[00:09:35] Speaker 00:
Under DSM?

[00:09:35] Speaker 00:
Under DSM.

[00:09:37] Speaker 00:
Right, so that has nothing to do with whoever is testifying, I now examine you, I say you've got along the following axes these conditions, you fit into this diagnosis.

[00:09:50] Speaker 00:
That doesn't establish

[00:09:53] Speaker 00:
It is not in that prong of the analysis that one establishes whether he was in the river at the time that he says he was in the river.

[00:10:03] Speaker 03:
How could it?

[00:10:06] Speaker 03:
Because it is predicated upon an analysis medically as to whether or not the symptoms he is describing are consistent with the diagnostic criteria under DSM NOW 5

[00:10:19] Speaker 00:
That's current symptoms and DSM diagnostic criteria.

[00:10:27] Speaker 01:
But the problem is that the veteran can go into a doctor, exhibit all these symptoms and say they were caused by this event.

[00:10:36] Speaker 01:
The doctor is not going to establish whether that event occurred.

[00:10:41] Speaker 01:
They're going to establish whether he bears the current symptomology of PTSD.

[00:10:48] Speaker 03:
I would say it just slightly differently, that the medical professional makes the assumption that the event as described occurred, and if the event as described to the psychiatrist occurred based upon this cluster of symptoms.

[00:11:04] Speaker 01:
Right, right, right.

[00:11:04] Speaker 01:
I get that.

[00:11:05] Speaker 01:
But the problem with it is, is that under your reading of this, there's no place where anybody would ever have to show that the stressor occurred to the veteran.

[00:11:17] Speaker 01:
The doctor takes it on the veterans word your view.

[00:11:20] Speaker 01:
I get that.

[00:11:21] Speaker 01:
I think that what you're reading is that because this phrase doesn't say credible supporting evidence that a claim in service stressor occurred.

[00:11:30] Speaker 01:
to the veteran, that the to the veteran isn't required, but isn't that just implicit in this whole structure?

[00:11:37] Speaker 03:
I mean... No, Your Honor, because of the first two elements, the way that this regulation is... But again, I think I have the same question Judge Toronto does.

[00:11:46] Speaker 01:
If we don't read, assume that this means occurred to the veteran, there's no requirement anywhere that the actual proof that the stressor occurred to the veteran happened, just that it occurred.

[00:11:59] Speaker 03:
Going back to 4.25, the diagnostic criteria requires that there be a relationship between the events... Okay, I get that.

[00:12:11] Speaker 01:
Hypothetically, let's say, and I'm not trying to align veterans in any way here, but let's say a veteran goes in, he exhibits all these characteristics of PTSD, and he says, this was caused by this incident in service.

[00:12:26] Speaker 01:
And it turns out,

[00:12:28] Speaker 01:
that that incident in service occurred.

[00:12:33] Speaker 01:
Well, let me back up.

[00:12:33] Speaker 01:
Then the doctor says, okay, you got PTSD.

[00:12:37] Speaker 01:
But it turns out that the veteran has PTSD from some other thing.

[00:12:41] Speaker 01:
We may not even know, because the veteran wasn't even remotely in the locality of where that event occurred.

[00:12:48] Speaker 01:
Under your definition, the fact that he wasn't remotely in the locality couldn't bar benefits, even though it was clear that

[00:12:57] Speaker 01:
He isn't suffering PTSD from that service-connected thing.

[00:13:01] Speaker 01:
He's certainly suffering PTSD, but we don't know where it's from.

[00:13:06] Speaker 01:
Isn't that true?

[00:13:08] Speaker 03:
I don't believe so, no.

[00:13:09] Speaker 03:
I believe the way in which this regulation is structured, that under your hypothetical, if the VA were able to demonstrate that this veteran was not within the vicinity of the event that was established to have occurred, and could not have had the reaction

[00:13:24] Speaker 03:
that the medical people connected, then they can go back to the medical people and say, here is the evidence that this never took place, or that he was in Afghanistan when he was... But see, this is a problem.

[00:13:40] Speaker 01:
You're looking to the medical prong to establish a fact that's not medical.

[00:13:47] Speaker 01:
It's a fact of whether something happened.

[00:13:49] Speaker 01:
And that doesn't seem to me to be something

[00:13:51] Speaker 01:
that we would expect the medical profession calls to upon on.

[00:13:55] Speaker 01:
In fact, where would you get the evidence?

[00:13:56] Speaker 01:
The doctor wouldn't have been, unless the doctor was the guy's buddy in Vietnam, he wouldn't have been there.

[00:14:03] Speaker 03:
That's where the uniqueness of this regulation occurs, because this is the only disability of all of the thousands of disabilities that the VA evaluates that requires evidence that the event occurred.

[00:14:17] Speaker 03:
There is no other disability.

[00:14:20] Speaker 04:
It's not whether the event occurred.

[00:14:22] Speaker 04:
It's whether the claimed in-service stressor.

[00:14:25] Speaker 04:
And the claimed in-service stressor was I was stabbed once when I exited an enlisted men's club.

[00:14:33] Speaker 04:
And then I found myself floating down the Patuxent or Potomac River during the helicopter incident.

[00:14:39] Speaker 04:
That's a factual inquiry.

[00:14:41] Speaker 04:
The inquiry was made and the determination was that the claimed in-service stressor

[00:14:47] Speaker 04:
did not occur.

[00:14:47] Speaker 03:
That's not the way, in my view, this regulation is read when you read it in the total context of the rest of the regulation.

[00:14:58] Speaker 01:
Because if you go to the five subsections... Can I just get... I'm a little confused about what you're asking us to decide in comparison to what you asked us to decide in your brief.

[00:15:07] Speaker 01:
Because it seems to me like you have pivoted a little.

[00:15:11] Speaker 01:
Because even if we accept your interpretation of this regulation,

[00:15:14] Speaker 01:
whether there's credible supporting evidence that event occurred, whether or not it occurred to the veteran, is still a factual question, isn't it?

[00:15:24] Speaker 03:
But, Senor, you're reading into occurred to the veteran.

[00:15:27] Speaker 01:
No, no, no.

[00:15:28] Speaker 01:
I meant to be clear.

[00:15:31] Speaker 01:
Hypothetically, I'm agreeing with you that the regulation doesn't require that it occurred to the veteran.

[00:15:37] Speaker 01:
It only requires evidence that it occurred.

[00:15:39] Speaker 01:
That is still a factual question.

[00:15:43] Speaker 03:
I do not believe so, Your Honor, because it sets up a standard of evidence that needs to be submitted.

[00:15:49] Speaker 01:
That I fail to understand how whether something or not happened is not a factual question.

[00:15:56] Speaker 03:
The end is, but the predicate, what is being asked for by this regulation is that the veteran come forward and submit creditable supporting evidence that the claimed in-service dresser occurs.

[00:16:08] Speaker 03:
That is no different than in the context of the statutory presumption of soundness, that once it's established that nothing was noted, then the burden shifts to the government to show by clear and convincing evidence.

[00:16:21] Speaker 04:
Okay, Mr. Carter, you're over your time now, and I'll restore some rebuttal time, okay?

[00:16:26] Speaker 04:
Thank you.

[00:16:28] Speaker 04:
Mr. Tomlinson?

[00:16:33] Speaker 01:
Can you, I think, address, and I know this is probably

[00:16:38] Speaker 01:
a little bit of a surprise to you too, because it seems like there's a pivot, although you're probably, you know, not unaccustomed to that.

[00:16:46] Speaker 01:
Address the view that that subpart doesn't require that the proof that the stressor occurred to the veteran, but that it just occurred and that whether it occurred to the veteran comes in under the other prong of the medical diagnosis.

[00:17:02] Speaker 02:
I was not aware that that was the veterans argument until today.

[00:17:07] Speaker 02:
But I do think, as you pointed out, we can think of a number of absurd results that would result from that reading of the regulation.

[00:17:17] Speaker 02:
As the example, somebody could go into a doctor, exhibit PTSD symptoms, excuse me, and say, I was stationed at Vance Air Force Base in Oklahoma in 1975, and I was in a plane crash, and I have these symptoms ever since.

[00:17:31] Speaker 04:
Why do we have to read something into this regulation?

[00:17:35] Speaker 04:
Isn't it clear?

[00:17:37] Speaker 04:
It says credible supporting evidence that the claimed, okay, so Mr. Case claiming something, I was stabbed exiting a club, and I found myself in the water in Potomac River, that the claimed in-service stressor occurred.

[00:17:53] Speaker 04:
It doesn't say, and I don't see why we're discussing, it doesn't say that the claimed stressor event occurred.

[00:18:01] Speaker 02:
it's what is it that Mr. Case claiming well that's exactly right your honor it does say claimed and it also says stressor and I think inherent in the concept of stressor and the word stressor is that it had to have caused stress to the individual to him correct and therefore it must have occurred to him a helicopter crash that he was not involved in the recovery efforts of or something that he had no connection to or a stabbing of someone else I don't

[00:18:29] Speaker 00:
I mean, at least as to the stabbing, I'm having trouble even understanding how one could separate those two things.

[00:18:36] Speaker 02:
Well, right, Your Honor.

[00:18:36] Speaker 02:
I don't know how somebody could claim something like that.

[00:18:38] Speaker 04:
Well, his wife testified, his former wife testified he never was stabbed.

[00:18:42] Speaker 02:
Well, I think she did actually testify that he was stabbed, but that they requested that no medical records be generated in that, but her dates were different from his dates, and there were a number of inconsistencies in that story, as the board specifically.

[00:19:00] Speaker 02:
But again, inherent in the concept of stressors that it must have occurred to the veteran.

[00:19:06] Speaker 02:
If not, we're setting up an unworkable system where a veteran with PTSD symptoms, which already deals with a number of stigmas and difficulties in going to seek help in the first place,

[00:19:16] Speaker 02:
is going to need to be questioned by the VA medical examiner to say, were you really in this crash?

[00:19:20] Speaker 02:
Did this really happen?

[00:19:21] Speaker 02:
Because as I understand the test that Mr. Carpenter is articulating now, it's up to the doctor to make essentially the factual determination of whether the claimed in-service stressor occurred or not.

[00:19:33] Speaker 02:
And it's not the board's determination because the board just has to

[00:19:37] Speaker 02:
that doesn't have any power to determine whether a stressor occurred or not.

[00:19:41] Speaker 02:
And so that's just not a workable system, and it's a disservice to the veterans to put them in that position, and certainly a disservice to the VA doctors that are examining them.

[00:19:55] Speaker 02:
Mr. Kazin has briefed states numerous times that this makes this out to be an issue of personal impression, that this is not an issue that has been addressed by this court before.

[00:20:04] Speaker 02:
We strenuously disagree with that.

[00:20:06] Speaker 02:
In particular, there was a case, National Organization of Veterans Advocates v. Secretary, that's at 669 F.

[00:20:15] Speaker 02:
3rd, 1340.

[00:20:17] Speaker 02:
It's a 2012 case.

[00:20:18] Speaker 02:
Mr. Carpenter represented the National Organization in that case, and that case was a pre-enactment challenge to this particular regulation, 3304F.

[00:20:29] Speaker 02:
And one of the arguments that was specifically made by NOVA in that case was challenging the credible supporting evidence requirement, arguing that it conflicted with 38 U.S.C.

[00:20:40] Speaker 02:
6407B, the statute that sets forth the equipoise standard that must be met.

[00:20:47] Speaker 02:
There's no argument in that case.

[00:20:49] Speaker 00:
Can I just, I'm confused, but you said 669 F3rd?

[00:20:51] Speaker 02:
669 F3rd, 1340, yes, Your Honor.

[00:20:55] Speaker 02:
It's a 2012 case.

[00:20:56] Speaker 02:
There are multiple cases with the same case name.

[00:21:00] Speaker 00:
And with Mr. Carpenter for that matter.

[00:21:04] Speaker 02:
There was no argument in that case that there was some lowered possibility standard, plausibility standard, which Mr. Case makes his brief in this case.

[00:21:15] Speaker 02:
And in particular, this court specifically held, we conclude that 3304F does not conflict with 38 USC 5107B and went on to say,

[00:21:23] Speaker 02:
Section 3304F requires that in non-combat related PTSD claims, credible supporting evidence in addition to lay evidence is needed to confirm a veteran's statement as to the occurrence of an in-service stressor.

[00:21:35] Speaker 02:
Section 3304F, however, does not prevent the Secretary to deny service connection to PTSD to non-combat veterans without considering all information or evidence in the record, including lay evidence.

[00:21:46] Speaker 00:
Sorry, so what is it about that language that you think is inconsistent with

[00:21:52] Speaker 00:
the position being argued now?

[00:21:54] Speaker 02:
I think it's inconsistent, certainly with the position he articulates in his brief, that essentially the well-grabbed claim requirements, the possibility, plausibility standards should apply to this question of whether there's credible supporting evidence.

[00:22:10] Speaker 00:
Why is it inconsistent even with that?

[00:22:12] Speaker 02:
Well, it's inconsistent with that because the 5107B standard, which this court is specifically saying 3304F does not conflict with, sets forth an equipoise standard, which is essentially... So you think that Mr. Carpenter in the earlier case, where his client was arguing that

[00:22:30] Speaker 00:
The standard of 3.304 was very, very low, and that's inconsistent with the higher standard of 5107.

[00:22:38] Speaker 00:
It seems unlikely that that's what he was arguing.

[00:22:42] Speaker 02:
No, Your Honor.

[00:22:43] Speaker 02:
He's arguing a lower standard in this case than he was... Right.

[00:22:47] Speaker 00:
So what is it that was rejected in the 669F third case that's inconsistent with the argument now that 3.304F

[00:22:58] Speaker 00:
sets a kind of low pleading type plausibility standard.

[00:23:02] Speaker 02:
Because this court specifically said 5107D is the appropriate burden of evidence.

[00:23:07] Speaker 00:
For interpreting 3.304F?

[00:23:09] Speaker 02:
For the determination, the ultimate determination of whether a veteran has provided credible supporting evidence that an in-service dresser referred.

[00:23:21] Speaker 02:
And so we also

[00:23:22] Speaker 02:
have this, I do think it's true as far as we know that this court has not previously specifically decided whether 3304F is an issue of fact or an issue of law.

[00:23:35] Speaker 02:
Certainly the Veterans Court has several times

[00:23:39] Speaker 02:
five more cases than the Pentecost case for the other ones.

[00:23:44] Speaker 02:
But there are multiple decisions on this court which interpret 5107B findings as B findings in fact.

[00:23:52] Speaker 02:
And that entails two things.

[00:23:54] Speaker 02:
One, it entails that the appropriate standard of review by the veteran's court is a clear error standard of review, which is what the veteran's court finds in this case.

[00:24:01] Speaker 02:
And it also means that this court cannot go back and leave with that evidence.

[00:24:05] Speaker 02:
It does not have jurisdiction to do so under 7212.

[00:24:10] Speaker 02:
The court has no further questions.

[00:24:12] Speaker 04:
No.

[00:24:12] Speaker 04:
Thank you very much.

[00:24:16] Speaker 04:
I'll restore your time to two minutes.

[00:24:23] Speaker 03:
The issue is often being presented as a question of whether or not this regulation presents an evidential burden.

[00:24:31] Speaker 03:
And if it presents an evidential burden, then as Mr. Case asked the lower court, that question should have been reviewed de novo without deference to the decision that was made by the veterans court.

[00:24:43] Speaker 03:
I am not asking that the shift be made to the medical profession.

[00:24:48] Speaker 03:
I am simply observing that the medical profession necessarily makes

[00:24:52] Speaker 03:
an inherent determination of the event having occurred as reported by the veteran.

[00:25:00] Speaker 03:
What is relevant here is whether or not the veteran, excuse me, this regulation does or does not create an evidentiary standard and an evidentiary standard that should be reviewed de novo.

[00:25:12] Speaker 03:
This is a very special and unique regulation that only deals with post-traumatic stress disorder.

[00:25:18] Speaker 04:
Particularly what evidentiary standard do you refer to?

[00:25:23] Speaker 03:
The Creditable Supporting Evidence that reported in-service event occurred.

[00:25:29] Speaker 03:
And that that Creditable Supporting Evidence is a measure of evidence that the veteran is required by this regulation, different from any other disability, to come forward and present.

[00:25:41] Speaker 03:
And that should be considered to be a legal question

[00:25:45] Speaker 03:
and not a factual question because of the uniqueness of this regulation and the way in which it's structured.

[00:25:52] Speaker 03:
Yes, we can take it apart and we can develop hypotheticals about extreme circumstances, but all that is asked by this appeal is that the Veterans Court be required to review this determination as to whether federal supporting evidence was or was not submitted

[00:26:09] Speaker 03:
Thank you very much.