[00:00:02] Speaker 03:
Next case is Walter Raine versus the Secretary of Veterans Affairs, 2015, 7065.

[00:00:08] Speaker 03:
Mr. Lacler.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:16] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:19] Speaker 00:
The rule of law established in Steffel holds that a legally adequate examination contains three components.

[00:00:25] Speaker 00:
First, the examination must be based upon the veteran's prior medical history and examinations.

[00:00:32] Speaker 00:
Second, the examination must describe the disability in sufficient detail so that the board's evaluation of the claim disability will be fully informed.

[00:00:41] Speaker 00:
And third, and what's at issue in this case, is that the examination must clearly address the relevant facts in medical science.

[00:00:50] Speaker 03:
Isn't the adequacy of an examination factual?

[00:00:53] Speaker 00:
Ultimately, the finding as to whether the examination is adequate is factual.

[00:00:59] Speaker 00:
But what's at issue in this case is whether or not the Veterans Court actually used the correct legal standard, which includes this third requirement that the examiner must clearly address the relevant facts of medical science.

[00:01:11] Speaker 00:
It's our contention that the Veterans Court misinterpreted the law by turning that requirement of a VA examination into an R&B reasons or basis obligation on the board.

[00:01:23] Speaker 00:
It's our argument that this standard incorrectly shifts

[00:01:27] Speaker 00:
the analysis of the relevance and significance of medical facts from the medical expert to the Board of Veterans Appeals, which is in violation of the Veterans Court's own precedent in Colvin, as well as the requirement in 38 USC 7104A that the board's decision must be based on the evidence of record.

[00:01:48] Speaker 00:
Therefore, we would argue the case should be remanded in order for the Veterans Court to adjudicate the adequacy of these medical examinations in this case.

[00:01:57] Speaker 00:
under the correct rule of law that VA examiners must clearly address the relevant facts in medical science.

[00:02:04] Speaker 00:
So this argument was directly raised to the Veterans Court below.

[00:02:09] Speaker 00:
We specifically cited to Colvin, and we cited to Steffel as well as Nieves Rodriguez for the contention that these examinations were inadequate due to their failure to address these lay statements that Mr. Rem submitted on his own behalf

[00:02:27] Speaker 00:
for his claim.

[00:02:29] Speaker 00:
So we have multiple statements in this case from Mr. Rem's fellow service members, which describe his reaction to the event, the fact that he was unable to sleep, the fact that he repeatedly stated that he could not get these events out of his head, as well as the nature of the events themselves, given graphic detail as far as what Mr. Rem actually witnessed in service.

[00:02:55] Speaker 00:
And what the examiner stated in the examination is essentially, if only, well, to directly quote the examiner on page 62 of the joint appendix, the difficulty in Mr. Rem's case is that after the incident, he didn't report any symptoms, nor was he treated for anything other than depression.

[00:03:14] Speaker 00:
And if he had sought out psychiatric help for trauma-related anxiety, it would have made a case for traumatic versus tragic incident having occurred.

[00:03:24] Speaker 00:
It's our contention that these lay statements from, particularly in the joint appendix at page 50, there's a detailed statement from a Richard T. Nelson that describes that, in fact, Mr. Rem was there.

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He became horribly upset and extremely emotional.

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And in the weeks afterwards, he could not carry on any extended conversation.

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He seemed emotionally changed.

[00:03:55] Speaker 00:
And it's these types of complaints that it seems as if the examiner in this case was looking for in order to find that either his depression is related to service or that he had a qualifying stressor for purposes of PTSD.

[00:04:11] Speaker 00:
So that's where the standard in Steffel comes in, is that we believe that if the Veterans Court had properly applied the standard enunciated in Steffel, it likely would have found that the examination was

[00:04:24] Speaker 00:
inadequate for ratings purposes.

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And we also think that the harm here is that the significance of these symptoms in service is ultimately a medical determination that the board, as well as, and even Mr. Rem is not competent to make.

[00:04:43] Speaker 00:
And by the board's own statements in its decision, it founds that Mr. Rem, as well as, and in discussing these particular statements, the board founds

[00:04:54] Speaker 00:
that these laypeople are not competent to establish a nexus with service.

[00:04:59] Speaker 00:
By the same token, the board is also not competent to say that these symptoms in service do not indicate a nexus with service.

[00:05:07] Speaker 00:
And that's exactly why the Veterans Court in Steffel emphasized so much that the standard here is whether or not the examiner has provided the medical opinion that's needed so that the board does not have to stray into relying on its own

[00:05:24] Speaker 00:
medical determinations in adjudicating the claim.

[00:05:30] Speaker 00:
So it's our position that because the Veterans Court in this case applied the wrong legal standard, the case should be remanded to adjudicate the case under the correct legal standard, which requires the medical examiner to address the relevant facts in medical science.

[00:05:48] Speaker 00:
We specifically raise this to the Veterans Court below.

[00:05:51] Speaker 00:
The veteran's response was that the examiner doesn't need to address favorable evidence.

[00:05:56] Speaker 00:
We believe this represents and shows the veteran's court's misinterpretation of the law.

[00:06:01] Speaker 00:
And we would request that this court remand.

[00:06:04] Speaker 02:
I have a question for you.

[00:06:05] Speaker 02:
On page 862, the language that you were relying on in the medical opinion says things like, the difficulty with Mr. Rems' case is that after the incident, he didn't report any symptoms, nor was he treated for anything other than depression.

[00:06:20] Speaker 02:
And your response is, well, he was reporting these things to laypeople.

[00:06:23] Speaker 02:
But I think the point here is that he was being treated for depression, and he didn't report anything to the people who were treating him.

[00:06:34] Speaker 02:
Once I start delving into that, I'm getting into those facts, I feel like I'm looking at factual issues.

[00:06:40] Speaker 02:
And this court isn't supposed to be looking at factual issues.

[00:06:43] Speaker 00:
Right.

[00:06:43] Speaker 00:
And of course, we're not asking the court to look at the factual issues in this case.

[00:06:49] Speaker 00:
We think that there's certainly a factual dispute as to whether or not these examinations are adequate.

[00:06:55] Speaker 00:
And VA argued in their brief that the examiners, in fact, did consider these statements.

[00:07:01] Speaker 00:
That's a factual dispute.

[00:07:02] Speaker 00:
We're not asking the court to reach

[00:07:04] Speaker 00:
We don't think that the court has jurisdiction to reach those factual issues, of course.

[00:07:09] Speaker 00:
But what's actually at issue here is whether or not the Veterans Court applied or used the right standard when it adjudicated this case.

[00:07:19] Speaker 02:
Don't we have to kind of delve into the facts in order to figure out whether it applied the right standard?

[00:07:25] Speaker 00:
I don't think you do, Your Honor, because I think you can look at the briefing to the Veterans Court as well as the Veterans Court's decision itself.

[00:07:32] Speaker 00:
I think you can look at the fact that

[00:07:34] Speaker 00:
We stated that we need a medical opinion on the potential medical significance of these lay statements that were submitted.

[00:07:42] Speaker 00:
We argued that the lack of such a medical opinion required the board to rely on its own medical opinion.

[00:07:49] Speaker 00:
And this court can also look at the Veterans Court's decision, which did not list, in its listing of the legal standard that applies to adjudication of the adequacy of medical examiners,

[00:08:01] Speaker 00:
The Veterans Court did not list that portion of Steffel that requires the examiner to clearly address the relevant medical facts, as well as the fact that the court's response to our argument that we need a medical opinion on these issues is simply that the examiner does not need to address favorable evidence.

[00:08:20] Speaker 00:
That's a misinterpretation of the law, because the examiner does need to address the potential medical significance of the facts of the case.

[00:08:29] Speaker 00:
There's no finding of fact.

[00:08:31] Speaker 00:
in the Veterans Court's decision that the examiner did consider this evidence.

[00:08:36] Speaker 00:
And there's no finding of fact that this evidence was not medically significant.

[00:08:41] Speaker 00:
It would not have changed the examiner's opinion.

[00:08:43] Speaker 00:
So I think given that entire context, I think this court can simply look at the briefing and the Veterans Court's decision and determine that it has jurisdiction, that a legal question is presented, and that on the merits,

[00:08:59] Speaker 00:
This is a well-established rule of law in Steffel, and it's consistent with VA's regulations that require an examination to be accurate and fully descriptive.

[00:09:08] Speaker 04:
What they say is, second, the examiners were not required to discuss all favorable evidence.

[00:09:14] Speaker 04:
That's what you're citing.

[00:09:16] Speaker 04:
We're citing that.

[00:09:18] Speaker 04:
Rather, the board, in relying on an opinion that does not do so, must discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reason

[00:09:28] Speaker 04:
or basis for its decision.

[00:09:32] Speaker 00:
We're relying on that statement, the fact that that's the Veterans Court's response to our argument regarding this is medically significant evidence that you need a medical opinion, as well as on page three of the joint appendix, which is also page three of the Veterans Court's decision.

[00:09:48] Speaker 04:
And you know what they say next.

[00:09:51] Speaker 04:
Here, the board specifically addressed the pertinent medical and lay evidence, including evidence cited by Mr. Rehm in his briefs, and explained its assignment of probative value to the respective evidence.

[00:10:05] Speaker 00:
Right.

[00:10:06] Speaker 00:
Right.

[00:10:07] Speaker 00:
I'm sorry?

[00:10:08] Speaker 00:
Right.

[00:10:08] Speaker 00:
Yes.

[00:10:09] Speaker 00:
So we're arguing that it's not the board that needs to address this evidence and address its probative value.

[00:10:15] Speaker 00:
We're arguing that this evidence potentially has medical significance to the question of nexus

[00:10:21] Speaker 00:
which the board conceded in its case, in its decision, that the veteran is not competent to render such an opinion.

[00:10:28] Speaker 00:
So it's the medical examiner and not the board that needs to address this evidence.

[00:10:32] Speaker 00:
Because without such an opinion, the board's addressing of that evidence is simply its own medical opinion that that evidence is not relevant.

[00:10:41] Speaker 00:
And for those reasons, we ask the court to remand the case.

[00:10:44] Speaker 03:
Thank you, Mr. LaFleur.

[00:10:45] Speaker 03:
We'll save you rebuttal time.

[00:10:46] Speaker 03:
Thank you.

[00:10:47] Speaker 03:
Mr. Tomlinson.

[00:10:48] Speaker 01:
Thank you, Your Honor.

[00:10:53] Speaker 01:
Your Honor, I'd like to pick off with the Steffel case, which Mr. Alaco discussed a lot and which Mr. Alaco specifically said that was the basis for their argument here today, that he believes in their position is that this court should have jurisdiction over this case because the Veterans Court applied the wrong standard and should have applied the standard in Steffel.

[00:11:14] Speaker 01:
There are several important things I'd like to note for this court on that.

[00:11:17] Speaker 01:
First of all,

[00:11:18] Speaker 01:
And most importantly, the standard in Steffel was the standard applied by the Veterans Court.

[00:11:24] Speaker 01:
I believe it's on page four of the record, where the Veterans Court, excuse me, it's on page three of the record, the Veterans Court's opinion, specifically states the standard and says, a medical examination is adequate, quote, where it is based upon consideration of the veterans' prior medical history and examinations, and also describes the disability in sufficient detail so that the board's evaluation of the claimed disability

[00:11:48] Speaker 01:
will be a fully informed one.

[00:11:49] Speaker 01:
And that is a direct quote from the Steffel case.

[00:11:52] Speaker 01:
So to the extent they're arguing that the wrong standard was applied and the Steffel standard should have been applied, the Steffel standard was applied, and that's clear from the record.

[00:12:00] Speaker 01:
The second thing, I would like this court's, I think it's worth talking about what the Steffel case actually said beyond just this statement that was quoted here, because Mr. Lackwa and the veteran seems to be taking this position that what Steffel actually required

[00:12:14] Speaker 01:
was that the medical examiner's report could only be adequate if it specifically discusses each and every piece of evidence.

[00:12:23] Speaker 01:
And that's simply not the case.

[00:12:25] Speaker 01:
If this court looks at the Stufel case in more detail, specifically the end of the Stufel case at page 124 and 125 of that case, the Veterans Court did discuss some items that would generally appear in these examiner's reports and then went on to say,

[00:12:40] Speaker 01:
We merely provide an illustrative list of items that may be helpful for the board to consider in making a fully informed determination of whether a medical opinion contains such sufficient information that it does not require the board to exercise independent medical judgment.

[00:12:53] Speaker 01:
We do not hold that this list is exclusive or that any of these items would be necessary to render a valid opinion.

[00:13:00] Speaker 01:
We hold only that a mere conclusion by a medical doctor is insufficient to allow the board to make an informed decision as to what weight to assign to the doctor's opinion.

[00:13:07] Speaker 01:
So there, the Veterans Court is going into more detail about that standard and specifically refuting Mr. Rem's characterization of that case that each and every piece of information must be specifically discussed by the examiner in order for that to be adequate.

[00:13:20] Speaker 01:
Instead, it's a more holistic standard where the board looks at the totality of the circumstances surrounding the examiner's report and determines whether or not it's adequate.

[00:13:31] Speaker 01:
And another thing I would just like to emphasize to this court is

[00:13:35] Speaker 01:
The examiner did know about these statements.

[00:13:37] Speaker 01:
In fact, at page 63 of the record, there's a specific reference to these buddy statements in the context of the fact that Mr. Rim was in contact with his fellow veterans.

[00:13:47] Speaker 01:
And so there's no evidence that the examiner didn't know about these or completely ignored these.

[00:13:53] Speaker 01:
In fact, the record specifically shows the examiner was aware of these.

[00:13:56] Speaker 01:
And so to the extent that Mr. Rim's position is that these were completely ignored by the examiner, that's simply contradicted by the record.

[00:14:05] Speaker 01:
Our position is that although Mr. Rim has characterized this as a legal challenge and is purely to the standard, the fact is that the standard, even the standard that he's arguing for, is the Stafel standard.

[00:14:16] Speaker 01:
And that was the standard that was applied by the Veterans Court.

[00:14:19] Speaker 01:
And what he's actually arguing, the gravamen of the Veterans claim, is that this examiner's report was inadequate because it did not consider certain information.

[00:14:29] Speaker 01:
And that takes us directly back to this court's prior decision in Prinke.

[00:14:33] Speaker 01:
various cases cited by Brinke and Brinke's progeny, in which this court has held that it does not have jurisdiction over challenges to the adequacy of a medical examiner's opinion.

[00:14:43] Speaker 01:
And so the secretary's position is certainly that this court does not have jurisdiction over this challenge, because it is not, in fact, a challenge to the adequacy of the standard that the Veterans Court applied, but rather a challenge to the adequacy of the medical examiner's report.

[00:15:02] Speaker 01:
If this court has no further questions, we would ask this court to dismiss for lack of jurisdiction.

[00:15:10] Speaker 00:
Thank you, Your Honor.

[00:15:18] Speaker 00:
I just want to start by emphasizing what's at issue in this case is not whether or not these examiners actually considered these statements.

[00:15:26] Speaker 00:
There's a factual dispute on that issue.

[00:15:29] Speaker 00:
And as the court noted in Wood v. Derwinsky,

[00:15:31] Speaker 00:
The court shouldn't be resolving factual disputes.

[00:15:34] Speaker 00:
The question is, what is the test the Veterans Court used in adjudicating the adequacy of these examinations?

[00:15:42] Speaker 00:
It's our argument that under Steffel, there's three requirements.

[00:15:45] Speaker 00:
And the Veterans Court, in its citation to Steffel, did not list that third requirement that the examiner must clearly address the relevant facts in medical science.

[00:15:53] Speaker 00:
This was an important part of the court's decision in Steffel, even though the Veterans Court

[00:16:01] Speaker 00:
quoted Steffel elsewhere in his decision is specifically stated that without a medical opinion that clearly addresses the relevant facts of medical science, the board is left to rely on its own lay opinion, which it is forbidden from doing.

[00:16:16] Speaker 00:
That is at page 124 of the court's decision in Steffel.

[00:16:22] Speaker 00:
And then they stated again on the very next page, the board must determine whether a medical opinion contains sufficient information

[00:16:29] Speaker 00:
that it does not require the board to exercise independent medical judgment.

[00:16:34] Speaker 00:
So our position here that these lay statements, the content of which was not addressed by the medical examiner in any way, the board is not competent to address the potential medical significance, whether or not the veteran's reports to his friends in service indicate an onset of depression or potential cause of his current depression from those events in service.

[00:16:59] Speaker 00:
as well as the board is not competent to state whether or not that means that the PTSD stressor was sufficient.

[00:17:08] Speaker 00:
Are there any further questions from the panel?

[00:17:12] Speaker 03:
Apparently not.

[00:17:12] Speaker 03:
Thank you.

[00:17:13] Speaker 03:
Thank you very much.

[00:17:14] Speaker 03:
We'll take the case under review.