[00:00:00] Speaker 02:
Today is two zero one five dash seven one one one Kellogg versus McDonald's.

[00:00:41] Speaker 00:
Mr. Carpenter, please proceed.

[00:00:53] Speaker 00:
The Veterans Court in this case used the wrong legal standard in determining that reversal rather than remand was the appropriate remedy in this case.

[00:01:02] Speaker 00:
The legal standard for reversal is where there was a clearly erroneous judgment

[00:01:07] Speaker 00:
in this case there was, based upon proper factual findings.

[00:01:12] Speaker 02:
What is our standard of reviewing that issue?

[00:01:15] Speaker 02:
Upon what standard do we consider whether or not it was proper for the Veterans Court to vacate rather than reverse?

[00:01:30] Speaker 03:
In other words, how do we assess whether there was only one

[00:01:35] Speaker 03:
result compelled by the evidence, which is what you're saying.

[00:01:38] Speaker 03:
Yes.

[00:01:43] Speaker 00:
I'm not sure that I know the answer to that question to be candid with the court.

[00:01:47] Speaker 00:
I'm not sure that I have seen this court articulate the standard upon which it does.

[00:01:52] Speaker 00:
This case is obviously dependent upon Deloach, and Deloach simply does not go into that because Deloach didn't reach that question.

[00:02:03] Speaker 00:
I would assume that it would be a clear error analysis as to whether or not, based upon the record that was before the Veterans Court,

[00:02:16] Speaker 00:
and likewise the same record that was before the board, requires only one result.

[00:02:24] Speaker 03:
Wouldn't we, I mean the best I could come up with, Mr. Carpenter, is that we would look at the decision of the CABC to try to determine whether in fact it misread the record that was developed before the board.

[00:02:45] Speaker 00:
Well, I'm not sure that's the proper analysis in this case, Your Honor, because it seems to me that the court below, the Veterans Court, really relied upon the fact that it was necessary for the board to take another look at this evidence.

[00:02:58] Speaker 00:
And I think that's where the clear error is here.

[00:03:01] Speaker 03:
No, but in getting to that, yes, you're right.

[00:03:04] Speaker 03:
The court said it's necessary to the board to look at the evidence.

[00:03:08] Speaker 03:
And you're saying that's wrong.

[00:03:10] Speaker 03:
Correct.

[00:03:10] Speaker 03:
The evidence before the board compels only one conclusion.

[00:03:14] Speaker 03:
So wouldn't we then have to say, OK, did the Board, I'm sorry, did the Court of Veterans' Appeals err in the way it looked at the evidence before the Board?

[00:03:25] Speaker 03:
Did it misread the evidence in coming to the conclusion that it should remand rather than reverse?

[00:03:33] Speaker 03:
Isn't that what it has to be?

[00:03:35] Speaker 00:
If you're saying- I don't believe so, Yar, because in this case, and this case really differs substantially from the two cases that were

[00:03:46] Speaker 00:
there were competing evidence to be considered.

[00:03:50] Speaker 00:
In this case, we have a board decision in 2011 that failed to consider the correct regulation.

[00:03:58] Speaker 00:
It was remanded for them to do that.

[00:04:01] Speaker 00:
The same evidence, the 2006 and the 2009 medical opinions that were the evaluation of Mr. Kellogg's disability that said that that disability went back to the date of his original claim,

[00:04:15] Speaker 00:
That's the only evidence in this record.

[00:04:18] Speaker 00:
It was the only evidence in 2011.

[00:04:20] Speaker 00:
It was the only evidence in 2013.

[00:04:22] Speaker 00:
And it's the only evidence that was in the record that was being reviewed by the court based upon what the board did.

[00:04:30] Speaker 00:
And what the board did was to say, no, you're not entitled to an effective date back to the date based upon evidence that supports it because there was no diagnosis.

[00:04:42] Speaker 01:
So, as I understand what you're saying, is you're saying that, okay, in Deloche we had competing evidence and the board only considered the one that was unfavorable to the veteran.

[00:04:55] Speaker 01:
Here we've got evidence that's somewhat favorable to the veteran.

[00:04:57] Speaker 01:
The board says it's not enough.

[00:04:59] Speaker 01:
And now the question is, there's additional evidence that's also favorable to the veteran.

[00:05:05] Speaker 01:
Couldn't it still be that even with the additional evidence, the board would find it not to be enough?

[00:05:12] Speaker 00:
I don't believe so, because that then turns on the error in applying 3.156C4.

[00:05:19] Speaker 00:
And 3.156C4 specifically calls for a retroactive evaluation of the disability.

[00:05:31] Speaker 00:
That's what these two medical records did.

[00:05:34] Speaker 00:
They reviewed that disability, the disability that he was granted service connection for.

[00:05:41] Speaker 00:
And the question is, under this regulation, did that, upon reconsideration and consideration of all of the evidence, then call for an effective date based upon the date of the claim?

[00:05:54] Speaker 00:
There is no contrary evidence in the record.

[00:05:57] Speaker 00:
There never was any contrary evidence in the record.

[00:06:01] Speaker 00:
Therefore, it is simply an exercise in futility to go back and

[00:06:08] Speaker 00:
re-examine evidence that you can only draw one conclusion from.

[00:06:12] Speaker 03:
Yes, but the board, I'm sorry, the CAVC said the board's, where the board failed, at least in one respect, was not explaining why it found deficiencies in the McNamara report, correct?

[00:06:30] Speaker 00:
In terms of their reasons and bases, yes.

[00:06:32] Speaker 00:
Yeah, reasons and bases.

[00:06:33] Speaker 03:
Correct.

[00:06:34] Speaker 03:
And it said,

[00:06:36] Speaker 03:
Tell us why.

[00:06:37] Speaker 03:
And it also said there was evidence that wasn't considered.

[00:06:40] Speaker 03:
The SORD report and also certain medical records, I guess, in connection with both the McNamara report and the SORD report.

[00:06:50] Speaker 00:
Except, Your Honor.

[00:06:51] Speaker 00:
Hospitalization records.

[00:06:53] Speaker 00:
But let's be realistic about what the standard is under the regulation.

[00:07:00] Speaker 00:
The standard is, is there adequate evidence to support a conclusion

[00:07:06] Speaker 00:
that this disability existed 30 years prior to the current effective date.

[00:07:11] Speaker 00:
And the only evidence of record says yes.

[00:07:15] Speaker 01:
But the problem is that this is really a who decides question, I guess.

[00:07:21] Speaker 01:
I mean, is there adequate evidence to support that conclusion?

[00:07:24] Speaker 01:
I mean, that's what the regulation says.

[00:07:27] Speaker 01:
So there never was a determination by the board that the evidence as it relates to the sword

[00:07:35] Speaker 01:
testimony was not adequate, right?

[00:07:38] Speaker 00:
That's correct.

[00:07:39] Speaker 01:
So you would be asking the Court of Veterans Claims to make that determination in the first instance, which it was uncomfortable making.

[00:07:49] Speaker 01:
Now, it's possible that after remand, if the board still says that's inadequate testimony, that the Court of Veterans Claims could disagree with that and say that that's not a reasonable conclusion, even under the most deferential standard of review.

[00:08:03] Speaker 01:
But shouldn't the board be allowed to make that decision in the first instance?

[00:08:07] Speaker 00:
No, Your Honor, they shouldn't, because this would give them a third bite of the apple.

[00:08:12] Speaker 00:
They had the opportunity to do it correctly in 2011.

[00:08:15] Speaker 00:
They didn't.

[00:08:15] Speaker 00:
They had the opportunity to do it correctly in 2013, and they didn't.

[00:08:20] Speaker 00:
Now, it's not a question of, frankly, reconsidering Dr. Sword's

[00:08:27] Speaker 00:
opinion, it's whether or not Dr. McNamara's opinion all by itself is sufficient, adequate evidence under the standard provided by the regulation.

[00:08:40] Speaker 00:
And I believe that what is contemplated by the statute, what Congress intended, was when there is no contrary evidence.

[00:08:49] Speaker 00:
That's why that portion that is discussed in Deloge about the interrelationship of the legal standard in 7261

[00:08:57] Speaker 00:
relates to the benefit of the doubt.

[00:09:00] Speaker 00:
Here, there is no opposing evidence.

[00:09:02] Speaker 00:
Without any opposing evidence, they're considering a fact that has no other conclusion.

[00:09:11] Speaker 01:
So you think that the Veterans Court should have based its determination solely on Dr. McNamara's evidence and not even considered the fact that Dr. Sword's evidence was not considered?

[00:09:21] Speaker 00:
I'm saying that they could have and they should have

[00:09:24] Speaker 00:
in order to properly dispose of this case.

[00:09:27] Speaker 00:
I believe they were entirely correct in their analysis of the board's error in failing to consider the three-year earlier medical opinion that, in fact, was far more extensive than the, I believe, two-page opinion from Dr. McNamara as opposed to the 14-page opinion from Dr. Swart.

[00:09:50] Speaker 00:
At the end of the day, there never was

[00:09:54] Speaker 00:
any evidence that contradicted that.

[00:09:57] Speaker 00:
When this case was remanded by the court based upon its 2011 decision being set aside to consider and apply, if the VA had wanted to develop evidence, send it out for another opinion to evaluate the opinions that were of record.

[00:10:18] Speaker 00:
They could have done that, but they didn't do that.

[00:10:21] Speaker 00:
The same evidence was in the record in 2011 as was in 2013.

[00:10:26] Speaker 00:
And this case being remanded serves absolutely no purpose.

[00:10:30] Speaker 00:
Under the law, he met the burden to be entitled to the reconsideration of his original claim.

[00:10:39] Speaker 01:
Suppose we don't agree that Dr. McNamara's evidence standing alone would have been enough, and that you would have to look at the sort of evidence.

[00:10:49] Speaker 01:
Even if we think in our guts that the combination of the two should be enough, is that really appropriate at that point for us or for the Court of Veterans Claims to be assessing Dr. Swartz's evidence and its impact?

[00:11:05] Speaker 00:
No, I would have to concede that.

[00:11:06] Speaker 00:
I would have to concede that under the standard that I'm asserting here, it would not be appropriate to consider a matter that was not considered by the board.

[00:11:17] Speaker 00:
However,

[00:11:19] Speaker 00:
they did acknowledge, at least parenthetically, that there was a prior statement.

[00:11:25] Speaker 01:
They didn't discuss it.

[00:11:27] Speaker 01:
Even if we were to look at it and say, no reasonable person could ever conclude otherwise, you would agree that we would still have to allow a remand at that point.

[00:11:40] Speaker 00:
Well, I'm not quite sure I would go that far, Your Honor.

[00:11:42] Speaker 00:
What I'm trying to say is, I thought your point was, if you factor in Dr. Swartz's opinion,

[00:11:49] Speaker 01:
does if we find that you have to factor it in.

[00:11:53] Speaker 00:
I have to concede that.

[00:11:54] Speaker 00:
However, on the basis of the record that was before the Veterans Court, which included the non-realistic consideration of Dr. Sworn's opinion, was Dr. McNamara's opinion sufficient as a matter of law to meet the burden under 3.156C4?

[00:12:15] Speaker 00:
And I think the answer has to be yes.

[00:12:18] Speaker 00:
Unless there's further questions, I'll reserve the balance of my time.

[00:12:21] Speaker 02:
Thank you, Mr. Carpenter.

[00:12:22] Speaker 02:
Mr. Breskin?

[00:12:27] Speaker 04:
May it please the court?

[00:12:30] Speaker 04:
The issues raised in this case really were decided in a series of cases, starting with Hensley, Deloach, Adams, and Byron.

[00:12:37] Speaker 04:
And I think Byron presents the most factually analogous situation, where the appellant was arguing essentially that

[00:12:45] Speaker 04:
The facts were not controverted, and that they believed if the facts had been properly considered, they would have won.

[00:12:53] Speaker 04:
And this court said it is not enough that only a few factual findings remain, or that the applicant may have a strong case of demerits.

[00:13:00] Speaker 04:
The Court of Appeals for Veterans Claims is not permitted by statute to make fact findings in the first instance, where the board has either not provided adequate reasons and bases, or has failed to consider evidence entirely, both situations which are present here

[00:13:16] Speaker 04:
The case law from this court says that it is appropriate and required.

[00:13:19] Speaker 01:
What about the Mr. Carverter's argument that we don't even have to look at the sort of evidence that they didn't consider if we could look at McNamara alone and conclude that the board erred?

[00:13:34] Speaker 04:
I think it's sort of irrelevant.

[00:13:36] Speaker 04:
I mean, one, that's not the argument that he made to the Court of Veterans Claims.

[00:13:39] Speaker 04:
But I think it's somewhat irrelevant because whether the court failed to consider the evidence at all

[00:13:45] Speaker 04:
or whether its consideration is found not facilitative of judicial review because it didn't provide adequate reasons and bases, the Court of Veterans Claims was not able to review the board's weighing of the evidence.

[00:13:57] Speaker 04:
And it is the board that is statutorily required to weigh the evidence and make fact findings.

[00:14:02] Speaker 04:
And so it would be equally inappropriate for this court or the Court of Veterans Claims to step in and say, well, we can't really review what determination you made either because you didn't consider the evidence.

[00:14:13] Speaker 04:
or because you haven't explained your review of it, we're going to find anyway.

[00:14:18] Speaker 01:
When there's no opposing evidence and the evidence just keeps getting stronger for the veteran, why do we have to keep creating these delays and time lags?

[00:14:28] Speaker 01:
This has been going on forever.

[00:14:30] Speaker 04:
Well, the question presumes that the evidence actually establishes that he had a compensable disability in 1974 or earlier.

[00:14:41] Speaker 04:
But the fact is that the

[00:14:43] Speaker 04:
body here at the board, which is tasked with fact finding, has never made a determination that, in fact, the evidence supports that finding.

[00:14:50] Speaker 04:
Because they did not properly review Dr. McNamara's report, and because they did not review Dr. Sword's retrospective opinion at all, it may be that we can read it and say, well, that's convincing to us.

[00:15:02] Speaker 04:
But the board is tasked with making those determinations

[00:15:05] Speaker 04:
They have the expertise to do so.

[00:15:07] Speaker 04:
And they need to be given the opportunity in the first instance.

[00:15:09] Speaker 01:
But isn't this the biggest complaint that veterans have about this whole process and this whole system is that at best, they just keep getting remands and remands and remands and remands because the board just doesn't do its job.

[00:15:20] Speaker 01:
And then we keep giving them another chance to do it.

[00:15:23] Speaker 01:
And it's 15 years down the road before they can have a claim processed.

[00:15:27] Speaker 04:
Well, in some instances, that may be a valid complaint.

[00:15:29] Speaker 04:
Here, Mr. Kellogg was diagnosed with PTSD and given

[00:15:35] Speaker 04:
service connection to 100% for PTSD in 2006.

[00:15:37] Speaker 04:
So he is trying to go back.

[00:15:40] Speaker 04:
The fact is, it is a complicated question whether or not he, in fact, had PTSD even before PTSD was recognized by the DSM-IV.

[00:15:51] Speaker 02:
And in those instances, I would say... When you say it's a complicated question, I may not be able to do this on appeal.

[00:15:57] Speaker 02:
But the evidence of record doesn't make it look very complicated.

[00:16:00] Speaker 02:
All of the evidence of record indicates that as of the date of his discharge, he was unable to maintain employment, unable to deal with the same issues that you ultimately found out of PTSD.

[00:16:12] Speaker 02:
So hey, I may not have the authority to touch that with a 10-foot pole.

[00:16:16] Speaker 02:
But all of the evidence of records points to it.

[00:16:18] Speaker 02:
And so it doesn't actually seem complicated at all if I had the authority to review fact findings, which I don't.

[00:16:24] Speaker 04:
Well, and it may be that in fact Mr. Kellogg gets a retroactive effective date when the board properly assesses the evidence that to us seems convincing that he had either PTSD in 1980 or an analogous illness previously.

[00:16:39] Speaker 02:
But again, the statutory... Was there any evidence of an analogous illness previously?

[00:16:42] Speaker 04:
Well, PTSD didn't exist as a matter of diagnosis prior to 1980.

[00:16:47] Speaker 04:
And so under the VA's regulatory scheme, they can give a disability prior to that for an analogous illness.

[00:16:57] Speaker 02:
Oh, I see.

[00:16:57] Speaker 02:
Oh, you're not suggesting it was something different, independent of your... I understand now.

[00:17:02] Speaker 04:
I just want to make sure I understand.

[00:17:03] Speaker 04:
If he did have PTSD in 1974, it wouldn't have been called PTSD.

[00:17:06] Speaker 02:
It would have been called... So what is the government's

[00:17:08] Speaker 02:
argument just out of curiosity on the merits of this case.

[00:17:12] Speaker 02:
I mean, we're only really considering did the board err and vacate rather in reverse.

[00:17:19] Speaker 02:
Why is the government contesting the benefit award in this case?

[00:17:22] Speaker 04:
Well, the government doesn't contest the award at the board level.

[00:17:26] Speaker 04:
Well, I mean, before the Veterans Court, the government conceded that the board had not properly considered the evidence.

[00:17:32] Speaker 04:
And the secretary is simply concerned with a proper consideration of all the evidence.

[00:17:36] Speaker 04:
The board obviously had concerns about Dr. McNamara's opinion.

[00:17:40] Speaker 04:
It voiced some of them, but it didn't explain exactly how it believed the lay evidence didn't match up to Dr. McNamara's opinion.

[00:17:49] Speaker 04:
So there are concerns that the board voiced with Dr. McNamara's report.

[00:17:53] Speaker 04:
We may now reading them not really understand them or disagree with them.

[00:17:57] Speaker 04:
But the fact is there's not an uncontroverted view of this evidence by the fact finder.

[00:18:02] Speaker 04:
And that is what is missing and needs to be.

[00:18:05] Speaker 04:
developed before Mr. Kellogg can be properly assessed.

[00:18:08] Speaker 03:
Mr. Russell, what is our role here?

[00:18:10] Speaker 03:
As I understand it, Mr. Kellogg is arguing that the CAVC should have reversed instead of remanded because based on the record that was developed before the board, the only possible conclusion is that he showed PSD in 1974.

[00:18:28] Speaker 03:
That's his argument, I think.

[00:18:30] Speaker 03:
Now, how do we, consistent with what we can and cannot do in a VA case, what are we supposed to do now?

[00:18:40] Speaker 03:
What are we supposed to look at in our analysis?

[00:18:44] Speaker 03:
What are we supposed to try and determine?

[00:18:46] Speaker 03:
I was getting at that a little bit with Mr. Carpenter.

[00:18:49] Speaker 03:
What do you say?

[00:18:50] Speaker 04:
I think the question, and it certainly was a question raised in the previous cases, was under 7252A, can the Veterans Court

[00:18:57] Speaker 04:
remand instead of reverse.

[00:18:59] Speaker 04:
That's not really the question presented here, so the way I understand it.

[00:19:02] Speaker 04:
was remand proper.

[00:19:05] Speaker 03:
Right.

[00:19:05] Speaker 04:
Well, in a situation where all the evidence is in the veteran's favor.

[00:19:11] Speaker 03:
So I asked the question, I asked Mr. Cutler, do we look at the VA decision and say, OK, did the VA misread the evidence before the board?

[00:19:27] Speaker 03:
Because he's saying that evidence compels only one conclusion.

[00:19:31] Speaker 03:
The VA didn't come that way.

[00:19:34] Speaker 03:
It said, no, we've got to send it back.

[00:19:38] Speaker 03:
So what do we do?

[00:19:40] Speaker 04:
I'm not sure this court can look at that question.

[00:19:42] Speaker 03:
But how do we decide the case then?

[00:19:44] Speaker 04:
I think the case would have to be decided if the court were to agree there was jurisdiction on it.

[00:19:50] Speaker 03:
I mean, there is a legal issue.

[00:19:52] Speaker 03:
Because there seems to be a rule of law that, and it's recited in the

[00:19:59] Speaker 03:
in some of the Veterans Court cases, and it seems to be stated at the end of our Deloach opinion, that if there's only one possible result based on the evidence that it has to be reversed, then you reverse.

[00:20:16] Speaker 03:
That seems to be a rule of law.

[00:20:19] Speaker 03:
And I gather Mr. Carpenter is arguing here that that rule of law was violated.

[00:20:27] Speaker 03:
So far, so good?

[00:20:28] Speaker 03:
I'm following.

[00:20:28] Speaker 03:
OK, now, how do we go about determining whether Mr. Carpenter is correct in his contention?

[00:20:36] Speaker 04:
I think a review of the Veterans Court decision shows that there is no uncontroverted view of the evidence.

[00:20:43] Speaker 04:
Mr. Carpenter started his argument by saying that there was proper factual findings below.

[00:20:49] Speaker 02:
So are we allowed to look at that, whether or not there is a controverted view of the evidence?

[00:20:56] Speaker 02:
I'm trying to think.

[00:20:57] Speaker 02:
I don't know what.

[00:20:58] Speaker 02:
I'm kind of with Judge Shaw in that I'm a bit perplexed as to how I am allowed to approach this case.

[00:21:04] Speaker 04:
The only way I can conceptualize this court's jurisdiction is that the Veterans Court deciding to remand instead of reverse was an interpretation of 7252A, which gives them the power to reverse or remand.

[00:21:18] Speaker 04:
And so to make it not a review of the specific facts here, but to make it a legal question, it has to be

[00:21:24] Speaker 04:
in a circumstance where the evidence is properly considered and uncontroverted, is it improper for the Veterans Court to review it?

[00:21:31] Speaker 03:
But how do we determine whether the evidence points only one way or not?

[00:21:35] Speaker 04:
I think you have to defer to the Veterans Court's review of that.

[00:21:39] Speaker 03:
So we say, did the Veterans Court properly exercise its review, right?

[00:21:45] Speaker 02:
So you're saying I have to accept the Veterans Court's determination that there isn't an uncontroverted view of the facts?

[00:21:51] Speaker 02:
And then once I accept that, I don't know what there is left for me to do.

[00:21:55] Speaker 02:
Why would this ever end up in appeal?

[00:21:57] Speaker 04:
Well, I mean, it's a weird question, because under Williams and the other Adams and Byron, the question was the veterans' right to avoid a remand.

[00:22:07] Speaker 04:
But I'm not sure how that exactly fits into it.

[00:22:09] Speaker 03:
I mean, if we have an issue of law, it does seem that within a certain narrow constraint, we have to look at the facts.

[00:22:18] Speaker 03:
I mean, if there's a proper issue of law before us, and there seems to be, I'm not sure you can look at the facts.

[00:22:24] Speaker 04:
I think you can simply make sure the Veterans Court did the review that it is statutorily required to do, which is a review for clearly erroneous findings by the board, which in this instance it did.

[00:22:35] Speaker 04:
It found that the conclusion about McNamara was clearly erroneous because there was no evidence.

[00:22:40] Speaker 03:
But how do we get to Mr. Carper's point then that

[00:22:43] Speaker 03:
and the rule that if the evidence compels one and only one result, you must reverse.

[00:22:50] Speaker 04:
I don't think in this case you can get to that question.

[00:22:53] Speaker 03:
But that's what he says the issue of law is.

[00:22:55] Speaker 04:
Well, that wasn't exactly how I understood the issue of law from the briefing, to be honest.

[00:23:01] Speaker 04:
So I'm not sure that the court can reach that question, where the facts are that there is a controversy of the evidence.

[00:23:07] Speaker 04:
And there has not been a proper review or assessment of the evidence by the fact finder.

[00:23:14] Speaker 01:
What is your view of whether or not Mr. Kellogg can attempt to recapture all the way back to the early 1970s?

[00:23:27] Speaker 01:
Does the VA believe that before PTSD was recognized, that there's no way that he could have had a diagnosis of PTSD?

[00:23:36] Speaker 01:
Or do you assume that medical characteristics that today would be recognized as PTSD would be sufficient?

[00:23:45] Speaker 04:
First, I think it's two questions.

[00:23:48] Speaker 04:
Under 3.156, the board did find that it would review back to the 70s.

[00:23:53] Speaker 04:
I believe there's a general counsel's opinion saying

[00:23:56] Speaker 04:
The diagnosis of PTSD could not be earlier than April 11, 1980, but that I think under 38 CFR 4.20, there can be an earlier rating by analogy, I think is the phrase that's used.

[00:24:09] Speaker 04:
And so if the symptoms approximate PTSD, even though PTSD didn't exist, he could be given an effective date back to 1974, again, if the facts support that determination.

[00:24:22] Speaker 04:
Let's have further questions.

[00:24:22] Speaker 04:
We ask for a firm decision.

[00:24:25] Speaker 04:
Thank you.

[00:24:29] Speaker 00:
I'd like to begin by clarifying one point that the government made related to the question of compensable disability.

[00:24:37] Speaker 00:
There should be no confusion that 3.156C does not deal with whether or not the disability was compensable.

[00:24:45] Speaker 00:
It only deals with whether or not the disability existed.

[00:24:49] Speaker 00:
If there is a finding that the disability existed, then there is a requirement on the DA to rate

[00:24:57] Speaker 00:
to make a determination, a separate proceeding, to determine what the appropriate rating is along the continuum, in this case, of 30 years.

[00:25:06] Speaker 00:
Now, as it relates to the question of the legal issue in this case and how it should be resolved, to respond to your question, Judge Shaw, I believe that this court must determine if there is, if we are to take away from Deloge

[00:25:25] Speaker 00:
that there are circumstances in which this court will determine that their reversal was the appropriate remedy, then that determination must be made on the question of whether or not there is disputed evidence in the record.

[00:25:41] Speaker 00:
And I do not believe that that is a pure factual question.

[00:25:46] Speaker 00:
Obviously, you have to review the facts to determine that.

[00:25:49] Speaker 00:
But I believe that that is a legal question.

[00:25:52] Speaker 00:
or excuse me, at least a combined question of fact and law, in order to determine whether or not, based upon this court's reading of the record, there is any evidence that contradicts Dr. McNamara's opinion.

[00:26:07] Speaker 03:
And you're saying we're permitted to do that, given this case, notwithstanding the normal constraints on our jurisdiction?

[00:26:15] Speaker 00:
Along with, frankly, the whole line of cases from this court that say if the facts are not in dispute,

[00:26:21] Speaker 00:
then the matter is a question of law.

[00:26:24] Speaker 00:
And so the matter before us is a question of law.

[00:26:28] Speaker 00:
Is reversal the appropriate remedy when, as in this case, there is no evidence to the contrary?

[00:26:35] Speaker 00:
That the evidence that was brought forward in this case, whether directly or indirectly by the veteran, supports the conclusion that under 3.156C, his disability was established to exist from the date of his original claim.

[00:26:52] Speaker 00:
Let's answer the questions.

[00:26:53] Speaker 00:
Thank you very much.

[00:26:56] Speaker 02:
Thank you counsel.

[00:26:57] Speaker 02:
The case is taken under submission.