[00:00:00] Speaker 00:
Please be seated.

[00:00:05] Speaker 00:
We have five cases on the calendar this morning of two veterans cases, a patent case, two government employee cases, one of which is being submitted only in the briefs and will not be argued.

[00:00:21] Speaker 00:
The first case is

[00:00:26] Speaker 00:
Antonio Paredes, Assistant Secretary of Veterans Affairs, 2015-7026.

[00:00:33] Speaker 00:
Mr. Lachlan.

[00:00:36] Speaker 00:
Yes.

[00:00:38] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:41] Speaker 03:
The Veterans Court aired when it held that without specific evidence of in-service events, Mr. Paredes is not entitled to service-connected benefits as a matter of law.

[00:00:51] Speaker 03:
Under the correct legal standard,

[00:00:53] Speaker 03:
Mr. Paredes' post-service lay statements regarding in-service symptoms of schizophrenia can support a claim of in-service incurrence of that disability.

[00:01:03] Speaker 01:
Did the board do anything wrong here, or are we just talking about it here or by the Veterans Court?

[00:01:08] Speaker 03:
Well, what we're challenging here today, Your Honor, is the Veterans Court's legal standard, which excludes Mr. Paredes' lay statements of in-service symptoms of schizophrenia.

[00:01:21] Speaker 03:
We did challenge before the veterans course the board's lack of any credibility finding.

[00:01:25] Speaker 01:
Right.

[00:01:26] Speaker 01:
I understand that.

[00:01:26] Speaker 01:
But here, as far as the schizophrenia termination is concerned, legal errors, there's no legal error in the board's decision, correct?

[00:01:40] Speaker 03:
Well, we're arguing that the board

[00:01:46] Speaker 03:
We argued that the board erred when it failed to consider those in-service symptoms and the lay statements of in-service symptoms.

[00:01:52] Speaker 03:
So we would argue that there was legal error in the board's decision.

[00:01:56] Speaker 03:
But we're not asking.

[00:01:57] Speaker 03:
Legal error in the board's decision?

[00:01:59] Speaker 03:
The legal error in the board's decision was the failure to, was very similar actually to the Veterans Court's legal error in this case, which is the failure to make any credibility assessment regarding the in-service symptoms

[00:02:14] Speaker 03:
of schizophrenia in the lay statements regarding in-service.

[00:02:17] Speaker 01:
I thought the board made a determination that the doctor's assessment was more credible than the lay statements, which seems to me to be a fact determination that's beyond our jurisdiction.

[00:02:29] Speaker 03:
Well, what the board and the Veterans Court found in this case was not that the in-service symptoms were incredible.

[00:02:36] Speaker 03:
What they found was, and they quoted the VA examiners,

[00:02:39] Speaker 03:
And they cited to the VA examiner's findings that the statements of in-service events were delusions.

[00:02:46] Speaker 03:
There's been no finding by either the Veterans Court, the board, or the VA examiners that his statements that he experienced hallucinations, delusions, paranoia, various symptoms in service.

[00:03:00] Speaker 03:
There's been no finding that any of those statements are delusions.

[00:03:04] Speaker 01:
Well, let's assume that we disagree with you and we conclude that there's no legal error

[00:03:09] Speaker 01:
in the board decision, but that there is a mistake in the Veterans Court.

[00:03:15] Speaker 01:
Where does that leave us?

[00:03:23] Speaker 03:
I think, well, what's at issue here is what the Veterans Court did in its decision.

[00:03:30] Speaker 03:
And this court can find that the Veterans Court made an error in

[00:03:34] Speaker 03:
in excluding Mr. Koretis' post-service statements of in-service symptomatology and remand for the Veterans Court to, in the first instance, adjudicate the board's decision.

[00:03:45] Speaker 03:
The board's decision has yet to be adjudicated under the proper legal standard.

[00:03:49] Speaker 03:
And that's the problem here, is that the Veterans Court needs to look at this case under the proper legal standard, which recognizes that if the schizophrenia began in service, then in-service incurrence can be shown.

[00:04:03] Speaker 03:
So I think that if this court finds that the Veterans Court applied an incorrect legal standard to this case, this court should remand to the board, I'm sorry, remand to the Veterans Court for a new decision and application of the proper legal standard.

[00:04:21] Speaker 02:
I understand what you're saying, but are you relying on the legal error in the Veterans Court decision for this sentence?

[00:04:32] Speaker 02:
on page 6, I think it's the one you cited in your brief, that looks at whether the claim in service events occurred.

[00:04:40] Speaker 02:
And you're saying that they're misconstruing it because it doesn't have to just be whether his description of the events occurred, but whether his description of his symptoms arose.

[00:04:50] Speaker 02:
That's right.

[00:04:52] Speaker 02:
This isn't a very well-written opinion.

[00:04:54] Speaker 02:
I'll agree with you on that.

[00:04:57] Speaker 02:
The sentence before that sentence you quote, it talks about whether his statements are the evidence of an in-service occurrence of the schizophrenia.

[00:05:05] Speaker 02:
And then talks about an in-service event or in-current.

[00:05:09] Speaker 02:
So it seems to me like they knew that he was arguing not just that this happened in service, because it's pretty clear that everybody thinks this was a delusion, but also that his statement should be considered as evidence of an in-current of schizophrenia.

[00:05:27] Speaker 02:
And, I mean, that sentence seems to recognize that they can support that.

[00:05:31] Speaker 02:
So if that's the case, then how do we find legal error there?

[00:05:36] Speaker 03:
It could be that they knew he was arguing his in-service symptoms could support in-service incurrence.

[00:05:43] Speaker 03:
But despite the use of the word incurrence in that one particular sentence, the Veterans Court's decision should be read as a whole.

[00:05:51] Speaker 03:
And in the very next sentence is where they describe

[00:05:54] Speaker 03:
their definition of incurrence that they're using to make the decision in this case.

[00:05:59] Speaker 03:
So regardless of the use of the word incurrence, in the very next sentence they state without evidence of in-service events.

[00:06:06] Speaker 02:
Why wouldn't we flip that and say they're applying the broader standard, and here in the second sentence that we're talking about, they're just specifically responding to the arguments you made on appeal to the Veterans Court, where it did talk about the credibility of his account of those of actual events occurring, not symptoms.

[00:06:26] Speaker 02:
I think it's different to me.

[00:06:28] Speaker 02:
I tried to look and I couldn't find a whole lot specific where there's evidence that his schizophrenia arose in service rather than his description of this event which happened, which he think happened, which I think everybody agrees is probably a delusion happened.

[00:06:46] Speaker 02:
Is there anything specific saying that even if this event didn't happen, he had symptoms?

[00:06:52] Speaker 02:
Sure.

[00:06:53] Speaker 02:
And beyond, I know there's the drug use and there's the sleep

[00:06:56] Speaker 02:
but I didn't see anything more specific than that.

[00:07:00] Speaker 02:
Okay.

[00:07:01] Speaker 03:
Well, there's various pieces of evidence in the record, and it's actually quite consistent.

[00:07:08] Speaker 03:
So starting in April 1993, he goes into treatment, and he talks about having auditory hallucinations since he was in his 20s, which does correspond with service.

[00:07:22] Speaker 03:
And this April 1993,

[00:07:24] Speaker 03:
Treatment provider actually states, I consider him reliable in his reports that he actually experienced auditory hallucinations in his 20s.

[00:07:34] Speaker 03:
Moving on, we have a May 2003 private treatment record, which is cited in the opening brief at pages 13 and 4, where the treatment provider notes, client has been experiencing psychotic symptoms since 1978 when he was in the Army at Fort Bliss.

[00:07:54] Speaker 03:
We also have... But this was all in the record before the board, right?

[00:07:59] Speaker 02:
This was in the record before the board and it was... And the board looked at all of this and they determined that the medical examination report was more credible as to whether he had any in-service occurrence of schizophrenia or not?

[00:08:13] Speaker 03:
They found that the medical examination reports were more credible in their finding that his events in service were delusions.

[00:08:23] Speaker 03:
uh... are you in the veterans court that the board's determination in that respect was erroneous we we did argue before the veterans court that's uh... we made it we made a general argument that the board failed to address the credibility of the lay statements of record uh... we we noted that about the lay statements of record you were talking about that fantastic story told not all these other pieces of evidence were here but we we also noted in our briefs before the veterans court that

[00:08:54] Speaker 03:
Mr. Predece's lay statements are competent to report his own experiences of symptomatology, and we actually did cite to... But I don't see that the board was saying otherwise.

[00:09:10] Speaker 03:
Well, the problem, Your Honor, is that the board never addressed this issue.

[00:09:13] Speaker 03:
The only credibility assessment they made was with regard to the PTSD stressor.

[00:09:18] Speaker 03:
When they reached the schizophrenia claim, they simply stated,

[00:09:21] Speaker 03:
that Mr. Paredes is not entitled to offer an opinion on etiology.

[00:09:26] Speaker 03:
They never made an assessment of the credibility of his statements that his symptoms began.

[00:09:30] Speaker 01:
I thought they said that the medical examiner's assessment of the origins of schizophrenia were more reliable.

[00:09:42] Speaker 01:
What is the page of the board decision that addresses this?

[00:09:49] Speaker 03:
OK.

[00:09:51] Speaker 03:
page 161 of the Joint Appendix.

[00:09:54] Speaker 01:
161?

[00:09:55] Speaker 03:
Yes.

[00:09:56] Speaker 03:
So all they're saying here, bottom of the first paragraph, is that the veterans lay statements as to nexus are outweighed by the provative medical evidence of record, which does not relate the veterans acquired psychiatric disorder to any incident of military service.

[00:10:16] Speaker 03:
And in the sentence preceding that,

[00:10:18] Speaker 03:
his opinion is not competent with regard to an assessment as to etiology.

[00:10:23] Speaker 03:
So what they're addressing here is not the credibility of his statements of symptoms in service, but his competence to render an opinion between any in-service incurrence and his current schizophrenia.

[00:10:35] Speaker 03:
Then they move on and address the 2012 examiner's opinion and state that the examiner, being a medical examiner, is more competent to render an opinion on nexus.

[00:10:45] Speaker 03:
And we had actually challenged the nexus determination by the board before the Veterans Court.

[00:10:51] Speaker 01:
We also challenged the adequacy of the... What did you say about the nexus determination?

[00:10:57] Speaker 03:
We argued that it was erroneous because of the failure to render a credibility determination regarding the symptoms in service.

[00:11:05] Speaker 03:
So that's what the problem here is that the Veterans Court never addressed any of these issues

[00:11:12] Speaker 03:
because of its finding that without evidence of events in service, in the Veterans Court's words, and the adequacy of an opinion on nexus, he's not entitled to benefits as a matter of law, regardless of the adequacy of opinion on nexus.

[00:11:28] Speaker 03:
So the Veterans Court doesn't reach the question of nexus because of its determination that only the events need to be considered.

[00:11:42] Speaker 03:
If there are no further questions from the panel, I'd like to reserve the remainder of my time.

[00:11:47] Speaker 00:
We will save it for your counsel.

[00:11:49] Speaker 00:
Thank you.

[00:11:50] Speaker 00:
Ms.

[00:11:50] Speaker 00:
Bond.

[00:11:58] Speaker 04:
May it please the court.

[00:11:59] Speaker 04:
The Veterans Court simply applied familiar and correct legal principles.

[00:12:03] Speaker 01:
No, I don't think that's true.

[00:12:05] Speaker 01:
The Veterans Court made a mistake.

[00:12:07] Speaker 01:
And on page six here, in

[00:12:12] Speaker 01:
seeming to suggest that for schizophrenia there has to be a determination of a stressor and that the delusional things that he had weren't real and therefore there wasn't a stressor.

[00:12:29] Speaker 01:
They seem to have confused the standard for PTSD with the standard for schizophrenia.

[00:12:36] Speaker 04:
I don't think that's what the Veterans Court's doing here.

[00:12:39] Speaker 04:
That sentence starts out with, in other words, so it's trying to restate the principles that it said earlier in the paragraph.

[00:12:48] Speaker 04:
And the remainder of that paragraph, as Judge Hughes observed, does indicate that the Veterans Court understood that an in-service event is not synonymous or coextensive or necessary to prove in-service incurrence, because the very preceding sentence

[00:13:04] Speaker 04:
preceding the words, in other words, says, in the absence of an in-service event or incurrence.

[00:13:10] Speaker 01:
Where?

[00:13:10] Speaker 01:
This is the Veterans Court decision?

[00:13:12] Speaker 04:
Yes.

[00:13:13] Speaker 04:
It's six lines from the bottom on JA6.

[00:13:17] Speaker 04:
It's after a semicolon.

[00:13:19] Speaker 04:
The Veterans Court states, in the absence of an in-service event or incurrence, an opinion with respect to nexus is an apposite.

[00:13:28] Speaker 04:
So there the Veterans Court is

[00:13:31] Speaker 04:
indicating its understanding that incurrence is not synonymous with an in-service event.

[00:13:37] Speaker 04:
And it's citations there.

[00:13:38] Speaker 04:
If the Veterans Court had in fact applied this PTSD requirement of an in-service stressor, one might expect to see legal citations to PTSD cases or regulations like 3.304F, which includes the stressor requirement.

[00:13:53] Speaker 01:
But this, in other words, sentence seems to be addressed to PTSD.

[00:13:57] Speaker 01:
It's not a correct statement of the law as far

[00:14:00] Speaker 01:
And schizophrenia is concerned, right?

[00:14:02] Speaker 04:
It is a correct statement of the law applied to the facts of this case.

[00:14:07] Speaker 04:
It was Mr. Paredes, not the Veterans Court, that linked the alleged in-service event to the incurrence prong of... I'm simply not understanding what you're saying.

[00:14:18] Speaker 01:
If he testified, and apparently he did, that he had these delusions while he was in service, that was evidence of schizophrenia, and it can't be dismissed

[00:14:29] Speaker 01:
on the ground that the description were a description of delusions, right?

[00:14:35] Speaker 04:
If that was presented to the Veterans Court, and if the Veterans Court had dismissed that evidence out of hand, that would have been incorrect.

[00:14:42] Speaker 04:
But what happened here is that the board considered all of that evidence, the board considered all of the theories of incurrence, including in-service manifestation, and at JA... I don't understand what you're saying.

[00:14:54] Speaker 01:
How can it be that

[00:14:56] Speaker 01:
The board says that the claim 78 events are delusions, they're not real.

[00:15:00] Speaker 01:
His reports of the events cannot be credible, but his reports of delusions certainly can be credible, right?

[00:15:07] Speaker 04:
Perhaps, but the board found that, so at JA150, the board's third finding of fact, the board said the veteran has not been shown to have a psychiatric disorder that manifested during active duty service.

[00:15:19] Speaker 04:
And then in the statement of reasons and bases, the board further explains at JA 156 that... I don't have a problem with what the board... I don't think there was legal error in what the board did.

[00:15:29] Speaker 01:
That's not what we're talking about.

[00:15:30] Speaker 01:
What they're saying is there was a legal error before the Veterans Court which deprived them of the Veterans Court reviewing the actual finding that the board made that his description of what... the delusions that he had while in service

[00:15:49] Speaker 01:
were not sufficient to show schizophrenia in the light of the medical assessment.

[00:15:55] Speaker 04:
Yes, and the trouble with that argument is that it was already rejected by the board and not raised again to the Veterans Court.

[00:16:02] Speaker 04:
The only evidence that Mr. Paredes raised... What do you mean it wasn't raised?

[00:16:05] Speaker 01:
I thought it was raised before the trial.

[00:16:07] Speaker 04:
No.

[00:16:07] Speaker 04:
The allegations of in-service hallucinations and in-service delusions

[00:16:13] Speaker 04:
that was only raised to the board.

[00:16:14] Speaker 04:
It was not raised to the Veterans Court.

[00:16:17] Speaker 04:
And the best place to see Mr. Paredes' argument about incurrence is in the reply brief to the Veterans Court at JA208.

[00:16:28] Speaker 04:
The second paragraph, the first full sentence of the second paragraph at JA208 says that Mr. Paredes' lay statements

[00:16:36] Speaker 04:
in which he claims he was drugged, taken to an unknown area, and attacked.

[00:16:41] Speaker 04:
So these are the lay statements about the alleged events in 1978.

[00:16:45] Speaker 04:
Reasonably raised the issue of whether his accounts meet the second element of an in-service occurrence to support his claim for service connection.

[00:16:53] Speaker 04:
And the remainder of that paragraph is addressing other principles about lay evidence.

[00:17:01] Speaker 04:
So this is the evidence he points to to support step two.

[00:17:04] Speaker 04:
And the Veterans Court acted

[00:17:06] Speaker 01:
But this is raising the issue.

[00:17:09] Speaker 01:
It's raising the issue that the board made an error by not crediting his lay statements, right, by giving way to them.

[00:17:18] Speaker 04:
But he's pointing only to the lay statements about the alleged events from 1978, and that's what the Veterans Court understood it was addressing, and only those lay statements.

[00:17:27] Speaker 02:
He's pointing to those statements as evidence of an in-service event of trauma or the like, not as an in-service

[00:17:36] Speaker 02:
incurrence of schizophrenia.

[00:17:38] Speaker 02:
Is that the way you're reading it?

[00:17:39] Speaker 04:
I'm reading it as he's saying that this in-service event meets the incurrence.

[00:17:44] Speaker 04:
It does say occurrence instead of incurrence, but in the immediately proceeding paragraph, it refers to the three-step test, and it seems to just mistakenly have said occurrence.

[00:17:55] Speaker 04:
It seems to mean incurrence there.

[00:17:57] Speaker 01:
I may be wrong about this.

[00:18:00] Speaker 01:
I thought he was not realizing the PTSD claim before the Veterans Court.

[00:18:05] Speaker 04:
That's correct.

[00:18:05] Speaker 04:
He was not.

[00:18:06] Speaker 01:
So this must be addressed to the question of whether he's not trying to show that he had a stressor, because that's a PTSD standard.

[00:18:15] Speaker 01:
He's trying to show that he had delusions while in service to support a claim for schizophrenia.

[00:18:21] Speaker 04:
Your Honor, I think the best way to read his arguments to the Veterans Court and the way the Veterans Court understood them is that he was arguing that he had an in-service event that caused his later schizophrenia.

[00:18:33] Speaker 04:
And the Veterans Court

[00:18:35] Speaker 04:
noted that his two arguments were connected.

[00:18:39] Speaker 04:
The first argument was that the board failed to consider credibility about whether these claimed in-service events actually happened.

[00:18:47] Speaker 04:
And in the Veterans Court, again at JA6, the Veterans Court addresses that, referring expressly to, quote, his lay statements regarding the claimed events in service.

[00:18:59] Speaker 04:
And when the board at the outset starts to address Mr. Paredes' second argument,

[00:19:04] Speaker 04:
It's still referring to those same lay statements.

[00:19:07] Speaker 04:
The other issues about in-service symptomatology was simply not raised to the board.

[00:19:12] Speaker 04:
It had already been rejected by the, pardon me, it was not raised to the Veterans Court, had already been rejected by the board.

[00:19:20] Speaker 04:
And so the Veterans Court, what really truly was just applying normal principles of incurrence to the claimed in-service events.

[00:19:28] Speaker 04:
And even the sentence challenged by Mr. Paredes,

[00:19:33] Speaker 04:
refers to the claimed in-service events.

[00:19:36] Speaker 04:
And if the Veterans Court had been improperly applying a general new legal standard requiring an in-service stressor in all cases of schizophrenia, you would expect to see a general statement of that law.

[00:19:50] Speaker 04:
But instead, the Veterans Court refers to the claimed in-service event.

[00:19:54] Speaker 04:
So according to the Veterans Court's own decision, it understood that it was simply applying normal principles of law

[00:20:01] Speaker 04:
to the facts as presented by Mr. Paredes.

[00:20:06] Speaker 04:
And again, the legal citations it points to are instructive here.

[00:20:10] Speaker 04:
For example, the case Duenas v. Principi.

[00:20:13] Speaker 02:
So is this coming down to a failure of the veteran to argue his claim properly?

[00:20:18] Speaker 02:
Because I think you would agree that if he'd been more explicit, that he's not claiming that these in-service events occurred and caused his schizophrenia, but rather his recollection of these events and his dilutions during service.

[00:20:31] Speaker 02:
cause showed that he had schizophrenia in service that

[00:20:35] Speaker 02:
that would be an appropriate way and an appropriate lay statement to support evidence.

[00:20:41] Speaker 02:
And it doesn't seem to me that the Veterans Court properly considered that argument if he'd made it.

[00:20:47] Speaker 02:
I think you're saying he didn't make it.

[00:20:49] Speaker 04:
He did not make it.

[00:20:50] Speaker 04:
And in fact, in his statements, for example, at JA 33, the veteran said that he believed... Shouldn't we more liberally construe these pleadings, given that he's a veteran and a schizophrenic veteran?

[00:21:04] Speaker 02:
I mean, it's

[00:21:05] Speaker 02:
not particularly clear to me one way or another what he was arguing.

[00:21:10] Speaker 04:
Well, the board did sympathetically construe these claims and considered all possible theories of incurrence and found, broadly and generally, that he did not show manifestation or an in-service event.

[00:21:25] Speaker 01:
No, I don't think they considered this argument.

[00:21:28] Speaker 01:
That's your problem.

[00:21:29] Speaker 04:
The board did.

[00:21:31] Speaker 04:
The board did.

[00:21:31] Speaker 01:
The board did.

[00:21:32] Speaker 01:
We're not reviewing the board.

[00:21:34] Speaker 01:
We're reviewing the Veterans Court, and the Veterans Court didn't consider that.

[00:21:38] Speaker 01:
The board may have done a fine job in addressing the correct standard, but he was entitled to argue before the Veterans Court that they made a factual error.

[00:21:48] Speaker 01:
And if he was arguing before the Veterans Court that they made a factual, that the board made a factual error in not giving adequate

[00:21:56] Speaker 01:
consideration to his descriptions of his delusions in service, that was an issue which the Veterans Court should have addressed.

[00:22:03] Speaker 01:
And it did not address it.

[00:22:06] Speaker 04:
The Veterans Court didn't address it because that argument wasn't made to the Veterans Court.

[00:22:10] Speaker 04:
And this isn't really a waiver argument.

[00:22:12] Speaker 04:
But to speak to your concern about construing broadly, again, the board did.

[00:22:17] Speaker 04:
And the Veterans Court is an adversarial tribunal.

[00:22:20] Speaker 04:
And it's appropriate for the Veterans Court to consider the arguments that are put to it.

[00:22:24] Speaker 04:
And in this case, the argument put to it with regard to in-service incurrence was simply this alleged in-service event.

[00:22:33] Speaker 04:
So that's why the board didn't stray further.

[00:22:35] Speaker 04:
That's why the Veterans Court didn't stray further and address factual issues that had already been rejected by the board.

[00:22:43] Speaker 04:
I'd like to also address this as a matter of law statement in the sentence challenged by Mr. Paredes.

[00:22:53] Speaker 04:
Really all that sentence is saying is that when step two of the familiar three-step process for showing service connection, when step two is not satisfied, there can be no service connection regardless of the merits of step three.

[00:23:09] Speaker 04:
So again, here the citation to Duenas is instructive.

[00:23:12] Speaker 04:
Duenas was a case where the Veterans Court found there was an error in the nexus analysis by the board.

[00:23:19] Speaker 04:
but nonetheless held it was harmless because there was no in-service incurrence.

[00:23:24] Speaker 04:
And here the Veterans Court is saying it will not review the nexus arguments by Mr. Paredes because it's already found that there was no in-service incurrence because the only evidence for incurrence that Mr. Paredes raised were these in-service events which the Veterans Court found were not credible.

[00:23:45] Speaker 04:
So although Mr. Paredes before

[00:23:48] Speaker 04:
the Veterans Court did raise issues of the alleged problem sleeping and alleged drug use.

[00:23:54] Speaker 04:
He was arguing those as evidence of nexus.

[00:23:57] Speaker 04:
And we know that because at JA 210, the veteran, at the very first full paragraph, the veteran starts out by addressing the next question, what would be nexus?

[00:24:10] Speaker 01:
I'm just looking at this opening brief in the Veterans Court.

[00:24:13] Speaker 01:
I don't see where he is saying that they

[00:24:16] Speaker 01:
the board made an error in finding that the events described in the delusions didn't happen.

[00:24:24] Speaker 01:
I see him as arguing that they improperly dismissed his testimony that he had delusions.

[00:24:35] Speaker 01:
Can you show me where he is saying that they made an error in not believing that the delusions were accurate descriptions of events during service?

[00:24:47] Speaker 04:
Yes.

[00:24:54] Speaker 04:
So, for example, at JA 186, the last sentence of the first full paragraph, it states here, Mr. Paredes presented numerous and various lay statements and illustrations that described his account of an incident during his service in 1978.

[00:25:18] Speaker 01:
Because in summary, Mr. Parades believed that he was drugged in late 78 and taken to an unknown area.

[00:25:24] Speaker 04:
Yes, so he's describing that as being evidence that the board improperly did not consider whether those events actually happened.

[00:25:34] Speaker 01:
I don't see that.

[00:25:35] Speaker 01:
Where does he say that's the issue?

[00:25:47] Speaker 04:
So also,

[00:25:50] Speaker 04:
I think the best place to look is in the reply brief, actually.

[00:25:59] Speaker 04:
That's the clearest statement of his arguments about incurrence.

[00:26:03] Speaker 04:
And there he is pointing to these lay statements of 1978.

[00:26:08] Speaker 04:
And also, the only time he ever specifically says what the lay statements are, he's referring to the 1978 statements.

[00:26:17] Speaker 04:
He doesn't mention

[00:26:19] Speaker 04:
From my reading, he does not mention the hallucinations, the alleged hallucinations or the alleged delusions in service.

[00:26:28] Speaker 01:
Why shouldn't we send it back to the board to have them determine, I mean to the Veterans Court, to have it determine whether he properly raised this argument or not, rather than our trying to decide whether he raised it?

[00:26:43] Speaker 04:
Well, because it's not really a question of waiver, Your Honor.

[00:26:46] Speaker 04:
It's more a question of

[00:26:47] Speaker 04:
did the Veterans Court apply a legal standard that's incorrect?

[00:26:51] Speaker 04:
And it did not, because it simply cited to normal legal principles.

[00:26:55] Speaker 01:
But it did.

[00:26:56] Speaker 01:
If he made this argument, don't you agree that they made an error in not considering it?

[00:27:03] Speaker 04:
If he had made this, if he had alleged in-service symptomatology, perhaps.

[00:27:09] Speaker 04:
But the Veterans Court's opinion reflects that it did not understand him to make that argument, and instead reflects that it understood

[00:27:15] Speaker 04:
in-service events to be not coextensive with or required to prove incurrence.

[00:27:22] Speaker 04:
Thank you.

[00:27:24] Speaker 00:
Thank you.

[00:27:25] Speaker 00:
Ms.

[00:27:25] Speaker 00:
Bond, Mr. Ilaqua has some more buttons on.

[00:27:32] Speaker 03:
Your Honours, the Veterans Court made no finding that Mr. Paredes did not raise an argument regarding in-service symptoms before it.

[00:27:40] Speaker 03:
Rather, the Veterans Court stated as a matter of law, he's not entitled to service connection without in-service events.

[00:27:46] Speaker 03:
And then the very last sentence in its opinion on page six of the joint appendix, or I'm sorry, the very last sentence of its main analysis, it states it need not consider Mr. Paredes' remaining arguments.

[00:27:59] Speaker 03:
So they made no finding that the in-service events were the sole basis for Mr. Paredes' argument for service connection.

[00:28:08] Speaker 03:
And as a matter of fact,

[00:28:10] Speaker 03:
Mr. Prentice's arguments were not strictly based on the in-service events.

[00:28:16] Speaker 01:
That's a sort of a confusing statement, because in-service events can mean two different things.

[00:28:21] Speaker 01:
In-service events could mean, one, he had delusions while he was in service, or two, that the delusions were a description of real events.

[00:28:31] Speaker 01:
And the second argument, if it were made

[00:28:40] Speaker 01:
doesn't really cut it.

[00:28:41] Speaker 01:
It's the first argument you have to be relying on, that he was arguing that he had delusions while he was in service, and that that was evidence of schizophrenia.

[00:28:49] Speaker 01:
Did he argue that before the Veterans Court?

[00:28:53] Speaker 03:
He did argue before the Veterans Court that the board failed to make a credibility determination regarding in-service symptoms.

[00:29:01] Speaker 02:
And it's not simply only delusions, but it's... I've read your briefs for the Veterans Court numerous times.

[00:29:11] Speaker 02:
And it seems to me they concentrate on his testimony that these events actually occurred.

[00:29:16] Speaker 02:
I mean, I'll take you back to the pages we were just looking at in your opening brief to the Veterans Court on 186 and 187.

[00:29:23] Speaker 02:
The second full paragraph on 186, it starts out by, in the summary, believed he was drugged and describes the events.

[00:29:32] Speaker 02:
This third sentence reads, a service treatment record suggested the possibility they may have been missing for several weeks.

[00:29:39] Speaker 02:
I read that as suggesting evidence to show that this actually happened.

[00:29:43] Speaker 02:
And you go further on, onto the next page on 187, the bottom of that carryover paragraph, the other service and medical personnel records offer consistency, corroborations was reported, 1978 incident, which seems to me to read the alleged abduction and the like.

[00:30:03] Speaker 02:
So I find it very hard to find a specific description of him arguing

[00:30:09] Speaker 02:
that he had delusions in service.

[00:30:14] Speaker 02:
Rather, this all seems to be suggesting that he actually had an incident, the alleged abduction, which caused his schizophrenia.

[00:30:23] Speaker 03:
Well, certainly we did argue regarding the actual events in service were not challenging.

[00:30:30] Speaker 03:
That seems to me to be the focus of your briefs to the veteran.

[00:30:33] Speaker 03:
It was part of the focus of the briefs, but the argument we raised was stronger than that.

[00:30:38] Speaker 03:
And I'm sorry, broader than that.

[00:30:40] Speaker 03:
And looking beyond on page 186 of the brief, we do also discuss in-service symptoms such as trouble sleeping mentioned during his discharge examination, which may indicate early manifestations of his schizophrenia, especially since insomnia and difficulties in sleep have continuously been symptoms endorsed by Mr. Peretix.

[00:31:04] Speaker 03:
So we are talking there about his own statements of in-service symptoms.

[00:31:11] Speaker 03:
And then looking at page 189 of the joint appendix, we compare this case to Dalton.

[00:31:28] Speaker 03:
and discuss how the court found that the board erred when it prematurely concluded the evidence select showing of in-service occurrence without first making credibility determination of the lay evidence.

[00:31:39] Speaker 03:
That's not limited just to the in-service statements of these events of being drugged and taken to a camp.

[00:31:47] Speaker 03:
Page 190, we state the record contains lay statements along with other helpful evidence reflecting plausible in-service occurrence that may have led

[00:31:57] Speaker 02:
to the development of... But the problem is that statement taken out of context might support you, but when you read most of the factual descriptions here, it's talking about his allegations that these events actually happened that caused his schizophrenia, not that his later allegations that these happened were evidence of his schizophrenia.

[00:32:23] Speaker 02:
I would argue we're not lending it.

[00:32:26] Speaker 02:
I think it's very, very unclear from all of this whether you made the allegations specifically enough for the Veterans Court to understand what error you were making.

[00:32:34] Speaker 02:
And certainly the Veterans Court opinion is fairly unclear too.

[00:32:40] Speaker 03:
That would be a determination, I think, for the Veterans Court to make in the first instance.

[00:32:46] Speaker 03:
Here they made no determination that we had waived any arguments regarding in-service symptoms

[00:32:52] Speaker 03:
We discuss in service symptoms in the brief, in both briefs.

[00:32:57] Speaker 03:
You know, even moving on to in the statement of the case before the Veterans Court, we cite to.

[00:33:02] Speaker 00:
I'm not going to move on, Mr. O'Loughlin, because your time is well expired.

[00:33:07] Speaker 00:
Thank you for your argument.

[00:33:09] Speaker 03:
Thank you.