[00:00:00] Speaker 02:
16-1338 Shuler versus McDonald.

[00:01:08] Speaker 02:
Please proceed.

[00:01:09] Speaker 02:
How do I say your name?

[00:01:10] Speaker 02:
Boltzner?

[00:01:12] Speaker 04:
Belsner, your honor.

[00:01:12] Speaker 02:
Belsner.

[00:01:13] Speaker 02:
Mr. Belsner.

[00:01:20] Speaker 04:
Good morning, your honor.

[00:01:20] Speaker 05:
May I please the court?

[00:01:23] Speaker 05:
Just out of curiosity, on your gray brief, you have Mr. Puller, Jr.

[00:01:30] Speaker 05:
Is it three or junior?

[00:01:32] Speaker 04:
Junior.

[00:01:33] Speaker 04:
He was Chesty's son.

[00:01:36] Speaker 04:
They went to Vietnam, lost both lives.

[00:01:42] Speaker 05:
I thought he was deceased.

[00:01:43] Speaker 05:
I didn't realize he was still alive.

[00:01:45] Speaker 04:
Right.

[00:01:46] Speaker 04:
Yeah, he came back, wrestled with alcohol, other demons, and then seemed to triumph over them, and then tragically killed himself late in the game.

[00:01:57] Speaker 05:
Oh, I see.

[00:01:57] Speaker 05:
OK.

[00:01:58] Speaker 05:
It's the name of the clinic.

[00:01:59] Speaker 05:
It's the name of the clinic.

[00:02:00] Speaker 05:
Got it.

[00:02:01] Speaker 05:
I'm sorry.

[00:02:02] Speaker 05:
OK.

[00:02:02] Speaker 05:
There we go.

[00:02:03] Speaker 05:
OK.

[00:02:03] Speaker 05:
I understand now.

[00:02:04] Speaker 05:
Thank you.

[00:02:06] Speaker 04:
In other words, the issue presented by this case is the standard and degree of scrutiny that the Veterans Court is required by its statute to apply to the reasoning of the Board of Veterans' Appeals.

[00:02:20] Speaker 04:
Mr. Shuler's claim turns on one single fact.

[00:02:22] Speaker 04:
Was he or was he not told about the risk of nerve injury before he consented to the surgery that he underwent to repair a hernia?

[00:02:31] Speaker 04:
The only direct evidence on the point is his testimony that he wasn't told.

[00:02:36] Speaker 04:
The board inferred the contrary, that he was told based on circumstantial evidence, relying on presumptions and inferences and evidence.

[00:02:45] Speaker 02:
Whether he was told or not, isn't that a fact finding?

[00:02:49] Speaker 04:
That is, Your Honor, absolutely.

[00:02:50] Speaker 02:
And we wouldn't have the authority to review that under our very limited jurisdiction, would we?

[00:02:55] Speaker 04:
True, Your Honor, and we're not asking the court to do that.

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We're focused on the reasoning the board used to get there.

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And we raised a number of challenges to the way the board reasoned its way.

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to this factual conclusion, which we think were quite inconsistent with normal reasoning processes of rational decision making that agencies are required to exercise.

[00:03:20] Speaker 04:
And the Veterans Court did not address that.

[00:03:23] Speaker 03:
That's still fact-finding, isn't it?

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I mean, the board could say, we're deciding the fact this way because the sky is blue today.

[00:03:32] Speaker 03:
That's completely arbitrary, but unless there's some legal error, then we can't review that fact-finding.

[00:03:42] Speaker 04:
Well, Your Honor, I hope you can, and I hope the Veterans Court can.

[00:03:46] Speaker 03:
Well, the Veterans Court can, right?

[00:03:48] Speaker 03:
The Veterans Court reviews for clear error.

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And that might be clear error.

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But if the Veterans Court inexplicably says that's not clear error, then we're out.

[00:04:01] Speaker 03:
It doesn't matter how arbitrary, wrong, incorrect, clearly erroneous, Congress didn't give us that jurisdiction.

[00:04:09] Speaker 05:
Your Honor, I think that... Even without those kinds of hypotheticals, we've seen factual determinations that

[00:04:19] Speaker 05:
pretty obviously were wrong, and there was nothing we could do about them.

[00:04:23] Speaker 04:
Well, what we're asking this court to do is to say that the Veterans Court should have done something about it.

[00:04:28] Speaker 04:
We're asking this court to look at what the board used in the way of reasoning.

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So I guess the court would have to look at the reasoning that the board talks about, what it says in its decision.

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But it doesn't have to second guess that reasoning.

[00:04:39] Speaker 04:
It simply has to look at whether the Veterans Court should have done so.

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And our contention is that we presented all these instances of arbitrary decision making

[00:04:49] Speaker 04:
which the Veterans Court should have addressed.

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If the Veterans Court doesn't do it, this court has authority to review how the Veterans Court behaves in conjunction with its statutory mandate.

[00:04:59] Speaker 03:
Not when it's reviewing facts.

[00:05:02] Speaker 03:
But Your Honor, it wasn't.

[00:05:04] Speaker 03:
If we agree with you, that opens up a massive loophole so that every time you think the Veterans Court incorrectly applied the clearly erroneous standard, we get to review their reasoning.

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At the end of the day, maybe Congress should have given us jurisdiction to review facts, but they didn't.

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So I don't understand how your argument is a legal rule that was incorrectly used here.

[00:05:32] Speaker 04:
Well, Your Honor, there's a distinction between making a finding of fact and reasoning to get there.

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And maybe I can illustrate it this way.

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If in this case, Mr. Schuler

[00:05:43] Speaker 04:
says I was not told about this risk.

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If a surgeon who was involved in the process had come in and said, I remember telling you about this, I always told patients about this, then the board would have had a classic weighing of evidence.

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And still has to have good reasons.

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Now, you're honored to pick up on your example.

[00:06:01] Speaker 03:
You don't get to judge the reasons.

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But the Veterans Court has to judge the reasons.

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That's the essence.

[00:06:08] Speaker 03:
But they did.

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And they disagreed with you.

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And you disagree now with them.

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But that's something for them to do.

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Let me give you the reverse hypothetical.

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Let's assume the veteran comes in and says, I didn't get this testimony or I didn't get this notification.

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The treating physicians came in and says, you know what, I reviewed my records and I don't see any instance where I gave this notification.

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And yet the board makes the factual finding

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That, oh, well, the doctor probably just didn't remember.

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This is routine.

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He probably gave it to him.

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We're going to find that they got notification.

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And the Veterans Court says that's not clearly erroneous.

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Where do we get, even if we think it's clearly erroneous, how do we, as a matter of law, get to that factual finding?

[00:06:58] Speaker 04:
I think it has to be the distinction between the review the Veterans Court does for clearly erroneous versus

[00:07:04] Speaker 04:
reviewing the reasoning for arbitrary and capricious.

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And if there's not a distinction there, Your Honor, and maybe there isn't, but if that's the case, then I would entreat this court to issue a decision that says that, that says Congress messed up, because Congress meant to have reviewed.

[00:07:21] Speaker 02:
We've written that opinion many times.

[00:07:27] Speaker 02:
Well, we keep trying, Your Honor.

[00:07:30] Speaker 02:
Let me try to help you, because you're not going to win on what you're asking for right now.

[00:07:34] Speaker 02:
because you're asking us to do something we simply don't have the authority to do.

[00:07:38] Speaker 02:
But one of the things we do have the authority to do, which I think you've preserved in your briefs, is to consider rules of law, for example, with regard to evidence.

[00:07:51] Speaker 02:
Did the lower tribunal

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adopt a different rule of law regarding what is necessary to establish routine or habit or something like that.

[00:08:03] Speaker 02:
Maybe there's something there that you have the ability to get us to look at.

[00:08:10] Speaker 02:
I don't know.

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But what we can't look at quite clearly.

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I mean, I don't mean to shut you down.

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If you want to keep arguing it, you can.

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But I have to tell you, it's a lost cause.

[00:08:18] Speaker 02:
But we don't have the ability to review fact findings from the Veterans Court.

[00:08:23] Speaker 02:
We don't have that authority.

[00:08:25] Speaker 02:
But we can review rules of law and even rules of evidence, evidentiary law, not particular evidentiary determinations, which would be factual, but rules of law with regard to evidence.

[00:08:36] Speaker 02:
I think that you made some arguments about habit and routine in your brief.

[00:08:40] Speaker 02:
Could you maybe focus on that?

[00:08:42] Speaker 04:
Absolutely.

[00:08:45] Speaker 04:
We did make those arguments, and the arguments are that the

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board necessarily relied on this statement by the doctor, which was sort of appended to his opinion about foreseeability of the risk.

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He made the comment that it would have been disclosed in a written surgical permission slip, he thought.

[00:09:05] Speaker 04:
The board relied on that as evidence of what actually happened in 1997.

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And our contention is that necessarily that means the board had to treat that as a report of fact.

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That is, it's not an expert opinion, it's a report of what

[00:09:20] Speaker 04:
the doctor believed happened in 1997.

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And our contention was that the board used that, and the Veterans Court permitted that use, which this court has held in the Guardian case and others is established as a rule of law by the court if it permits the board to use reasoning in a certain way.

[00:09:39] Speaker 04:
Here it used that reasoning to allow this testimony to come in without any indication that the doctor had any knowledge of what went on in 1997.

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that he had any knowledge of the routine practice of the surgeons.

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So you're making a foundational argument.

[00:09:56] Speaker 04:
Absolutely, Your Honor.

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The Veterans Court allowed this evidence to be treated as evidence of what happened as a matter of fact when there was no foundation for that testimony being reliable on that point.

[00:10:09] Speaker 04:
And this comes back to the integrity of the system.

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When we've got a jury involved, judges exercise that role of saying, we're not going to allow you to consider evidence of that sort without the proper foundation, because we don't want you to misinterpret its probity value.

[00:10:26] Speaker 04:
Here we have administrative law judges, so it's a more wide open system.

[00:10:33] Speaker 05:
Was there a foundational objection made and preserved?

[00:10:37] Speaker 04:
We don't have that opportunity, Your Honor, in the Veterans Court.

[00:10:39] Speaker 04:
All this evidence comes in on paper.

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There's no hearing.

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And we didn't have any idea that the board was going to rely on this evidence in this fashion until the board issues its decision.

[00:10:51] Speaker 04:
And then by then, all we can do is go to the Veterans Court and say, this is not proper reasoning.

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This is not proper evidence to be considered for this purpose.

[00:11:00] Speaker 05:
And the Veterans Court.

[00:11:01] Speaker 05:
You can say it in your written submissions, though.

[00:11:04] Speaker 04:
Well, we did argue several times, actually, in the panel motion and in the recon motion, particularly at the Veterans Court, we did argue that

[00:11:12] Speaker 04:
whole issue of habit evidence and how this was no foundation.

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And the Veterans Court response was simply, well, there's no indication that the board treated it that way.

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And our contention is the board had to have treated it that way.

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Otherwise, it has no probative value on the question of what happened in February of 1997.

[00:11:33] Speaker 04:
It has to be

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factual evidence, in other words, and it was allowed to come in without any foundation.

[00:11:40] Speaker 03:
Do you have an objection to this kind of evidence altogether?

[00:11:43] Speaker 03:
Or is it just in this case you think the board improperly accepted it and the Veterans Court improperly approved that use?

[00:11:55] Speaker 03:
I think, as in the other non-veteran litigation system, it is evidence that can be used and relied on properly when the foundation... So you're not taking the position that as a matter of law, you can't use this kind of... I mean, you don't want to call it expert testimony, but it seems like it's pretty akin to expert testimony because he certainly didn't have firsthand knowledge of the facts.

[00:12:18] Speaker 03:
He was submitting a statement about what he thought would have happened.

[00:12:22] Speaker 03:
Right.

[00:12:22] Speaker 03:
And so you're not advocating for...

[00:12:24] Speaker 03:
a legal rule that this kind of expert testimony can never be used to establish notice?

[00:12:33] Speaker 04:
Well, actually, there are a couple of things in there, Your Honor.

[00:12:35] Speaker 04:
We're not arguing that habit routine evidence could never be admissible and used by the VA system.

[00:12:41] Speaker 04:
So that part I agree with.

[00:12:45] Speaker 04:
We did say, however, that this is not really

[00:12:48] Speaker 04:
expert testimony the way we think of classic expert testimony in medical malpractice cases.

[00:12:53] Speaker 03:
I don't want to get caught up in terminology here.

[00:12:55] Speaker 03:
I mean, I don't think the rules of evidence apply to the board in the same way they do to civil litigation.

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So I don't think we have to talk about qualifying this person as an expert in the light.

[00:13:05] Speaker 04:
No, no.

[00:13:05] Speaker 04:
All I'm saying, Your Honor, is that classically expert testimony is, I tell you, is what all doctors generally do.

[00:13:13] Speaker 04:
This is what's accepted.

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This is the norm.

[00:13:15] Speaker 04:
And it's used to establish a standard of care

[00:13:17] Speaker 04:
And we know what the doctor in the case actually did, and then his behaviors measured against that state.

[00:13:23] Speaker 03:
You think that kind of evidence is OK in more proceedings?

[00:13:26] Speaker 04:
Oh, it could be in that case, but that's not what it was used for.

[00:13:28] Speaker 03:
But see, that's the problem.

[00:13:30] Speaker 03:
If you think that that kind of evidence is OK, then we're back into a dispute about whether this particular evidence meets that particular standard, which is at best an application of law to fact, which again, we can't review that.

[00:13:45] Speaker 04:
Your Honor, I think it's pure question of law because the question is, can you use habit evidence or routine practice evidence to prove facts without having a foundational aid?

[00:13:54] Speaker 04:
That's a rule of evidence.

[00:13:56] Speaker 04:
And judges apply it all the time in other litigation.

[00:13:59] Speaker 04:
And it should have been applied here.

[00:14:01] Speaker 02:
So let me make sure I understand.

[00:14:03] Speaker 02:
So you're saying the legal question that we ought to look at is if a doctor is going to come in and say it would have been routine

[00:14:12] Speaker 02:
to do this, there has to be some foundation.

[00:14:15] Speaker 02:
You can't just have testimony from someone who has no factual foundation in this case say, well, it would have been routine, without establishing that, in fact, it would be routine to inform someone of this particular possible side effect.

[00:14:30] Speaker 01:
Exactly.

[00:14:31] Speaker 02:
And so you're saying that even if the board isn't bound by the normal rules of evidence, nonetheless,

[00:14:39] Speaker 02:
That's one that ought to inert to the benefit of a veteran.

[00:14:42] Speaker 02:
If the government is going to introduce habit or routine as a basis for substantiating notice, then they have to actually show that there was some habit or routine in place at the time.

[00:14:58] Speaker 04:
That's right.

[00:14:58] Speaker 02:
That's your legal argument, right?

[00:15:00] Speaker 02:
That's legal.

[00:15:00] Speaker 02:
OK, why don't we hear from the government now?

[00:15:15] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:15:17] Speaker 00:
I will move straight to what Your Honor has identified as a legal argument and to discuss the types of evidence and that being something that is within this Court's jurisdiction.

[00:15:33] Speaker 00:
The Veterans Court determined that the Board did not view this particular 2007 opinion as habit evidence.

[00:15:45] Speaker 00:
If you read the doctor's note, it certainly doesn't say, I was practicing at the time.

[00:15:54] Speaker 00:
It doesn't establish what you would need for a rule 406.

[00:15:57] Speaker 00:
But as has already been discussed, the federal rules of evidence don't apply here.

[00:16:02] Speaker 00:
But rather, what the board did was say, we are looking at the contemporaneous evidence that there was some sort of informed consent discussion.

[00:16:11] Speaker 00:
We know this from the generic consent form.

[00:16:13] Speaker 00:
So it was looking at the form as well, saying, given that, and given that we know this is a common complication, we think there was some discussion and it is... Why?

[00:16:25] Speaker 02:
Based on what we think that he was informed of this, why?

[00:16:28] Speaker 02:
The doctor said because it would have been a habit, a normal routine to inform someone of this likely complication.

[00:16:36] Speaker 02:
That does go to the heart of habit and routine.

[00:16:39] Speaker 02:
I don't know how else

[00:16:41] Speaker 02:
you let that evidence in otherwise?

[00:16:43] Speaker 00:
That it is part of the analysis of what the generic consent form means.

[00:16:50] Speaker 00:
It's not simply about the 2007 note, but also in conjunction with knowing that there was a conversation that Mr. Schuler says nothing was discussed other than the risk of death from anesthesia.

[00:17:04] Speaker 00:
And the board found, well, it is, and I can get the exact language, but the board said,

[00:17:11] Speaker 00:
that it was hard to imagine what else other than the option of the potential complication of continued pain would have been discussed.

[00:17:22] Speaker 02:
But all of that predicates on the idea that this is a common side effect that would have been discussed.

[00:17:29] Speaker 02:
That's correct.

[00:17:29] Speaker 02:
That's habit and routine, that it would have been normal for a doctor to have discussed this complication to anyone having this surgery.

[00:17:40] Speaker 02:
But that fact finding has no foundation that I can see in the evidence of record here.

[00:17:45] Speaker 02:
And unless you are saying that there ought to be no foundational requirement in veterans cases for habit or routine evidence.

[00:17:55] Speaker 00:
Your Honor, I would say that our position is that the board did not view this as sort of the heightened

[00:18:08] Speaker 00:
we have established that this is what doctors in 1997 did, but given that we know there was some conversation, that it could look at the doctor's note and say that this, you know, this is, he was sure this was the type of complication that would be... Why?

[00:18:25] Speaker 02:
Why is he sure that this is the kind of complication that would have been discussed in a conversation he didn't take place in, didn't participate in?

[00:18:33] Speaker 00:
Because this is a

[00:18:35] Speaker 02:
A routine, common side effect, and so it would have been routine to discuss the common side effects with a patient facing the surgery.

[00:18:48] Speaker 00:
Yes, Your Honor.

[00:18:49] Speaker 00:
I recognize that it sounds very similar to routine evidence.

[00:18:54] Speaker 00:
And I think the key is whether, and maybe this is a distinction that this court does not

[00:19:03] Speaker 00:
doesn't need to go into because the rules of evidence don't apply.

[00:19:06] Speaker 00:
But the key is you don't need that level of foundation that you would need in a civil system, civil court, civil case that you would need.

[00:19:16] Speaker 03:
We have this doctor's report, right?

[00:19:18] Speaker 03:
There's no suggestion that the doctor's report wasn't gotten in the way you usually get doctor's reports in these VA cases, right?

[00:19:27] Speaker 00:
I'm sorry.

[00:19:27] Speaker 00:
I'm not sure I follow your honor's question.

[00:19:29] Speaker 03:
I mean, the VA said they asked for an opinion from this doctor, right?

[00:19:32] Speaker 00:
Right, on a variety of issues.

[00:19:34] Speaker 03:
That's routine, right?

[00:19:35] Speaker 00:
That's correct, Your Honor.

[00:19:36] Speaker 03:
And so he issued his report.

[00:19:37] Speaker 00:
That's right.

[00:19:38] Speaker 03:
And then the board looks at the report and decides whether it's probative or not.

[00:19:42] Speaker 00:
That's correct.

[00:19:43] Speaker 03:
And the Veterans Court gets to review whether it's probative or not.

[00:19:46] Speaker 00:
That's correct.

[00:19:48] Speaker 03:
And so do we get a review of whether a particular piece of evidence is probative or not?

[00:19:55] Speaker 00:
A particular piece of evidence

[00:19:58] Speaker 03:
No, Your Honor, but as a category, this court does have the option of saying... Sure, but I don't think that your friend suggested that this type of evidence is inadmissible altogether.

[00:20:11] Speaker 03:
It's whether it's reliable or not.

[00:20:15] Speaker 00:
Counsel can say what his argument is, but I think that's right, Your Honor.

[00:20:19] Speaker 02:
But I thought that I understood that we have the authority to look at whether a type of evidence is admissible.

[00:20:26] Speaker 02:
Not this particular piece and the fact findings made on it, but a type of evidence.

[00:20:30] Speaker 02:
Isn't that right?

[00:20:31] Speaker 02:
So would a type of evidence be a determination that testimony by a single doctor satisfies habit or routine

[00:20:43] Speaker 02:
that would be necessary to establish normal practice?

[00:20:47] Speaker 02:
Would that be a type of evidence?

[00:20:51] Speaker 00:
I'm sorry.

[00:20:53] Speaker 00:
Let me make sure I understand the type of evidence.

[00:20:57] Speaker 02:
I mean, you know what my concern is.

[00:20:58] Speaker 02:
My concern is very clear.

[00:20:59] Speaker 02:
I've telegraphed it about as clearly as I could possibly telegraph it, that my concern is that the board has determined that this one doctor said he would have been.

[00:21:09] Speaker 02:
informed of this complication or risk without establishing that that was, in fact, the normal habitual or routine practice to inform people with this surgery of this particular issue.

[00:21:21] Speaker 00:
The board did not, and if you look at the board's decision, the board did refer to this doctor's opinion, but also had a much more extensive discussion of the informed consent form itself.

[00:21:33] Speaker 00:
And this was a weighing of the evidence.

[00:21:34] Speaker 00:
Show me what you want me to look at then.

[00:21:36] Speaker 00:
Yes, Your Honor.

[00:21:37] Speaker 00:
At the appendix at page

[00:21:39] Speaker 00:
Well, it actually starts on page 36 and goes all the way to page 43 is the discussion.

[00:21:46] Speaker 00:
And the board's weighing of the evidence, and that evidence is the veteran's lay testimony, as well as the informed consent form that was signed, as well as the treatment note that was done in conjunction saying that informed consent was given, and then also the

[00:22:07] Speaker 00:
the 2007 opinion.

[00:22:09] Speaker 00:
And the 2007 opinion is referenced in just one part.

[00:22:14] Speaker 00:
It's on page 40 to 41 where the board talks about the medical professional's opinion in 2007.

[00:22:25] Speaker 00:
But it ties that into what the consent form means.

[00:22:32] Speaker 00:
And again, this is a very fact-specific, what does this consent form mean, how are we

[00:22:37] Speaker 00:
weighing that against the lay testimony of the veteran.

[00:22:43] Speaker 00:
And the board explained that it was giving great weight to the form itself.

[00:22:55] Speaker 00:
It was not reliant on page 39.

[00:22:59] Speaker 00:
It says, the board acknowledges that the informed consent form was generic in nature, but it nevertheless places great weight on it.

[00:23:06] Speaker 00:
and discusses that it was given weeks before the surgery, that it's a contemporaneous evidence of an informed consent discussion, and then also goes on to discuss the veteran's testimony.

[00:23:22] Speaker 00:
And again, so this is very fact-specific in terms of looking at the form, what does the form mean, and then also given

[00:23:33] Speaker 00:
the veteran's testimonies and his change in testimony, how the board determined, well, we think there was a discussion, and that's not just from this evidence from the 2007 opinion, but also the form itself, the signed contemporaneous documentation.

[00:23:51] Speaker 02:
But wait, the form itself simply says risks and complications were discussed.

[00:23:56] Speaker 02:
That's correct.

[00:23:57] Speaker 02:
It doesn't articulate with any precision the types, right?

[00:24:00] Speaker 02:
That's correct.

[00:24:02] Speaker 02:
How do we know he was informed that stubbing his toe was a possibility during surgery?

[00:24:07] Speaker 02:
Do you understand my point?

[00:24:10] Speaker 02:
Yes.

[00:24:10] Speaker 02:
Since form is general in nature, you can't rely on it alone to say that every possible complication would, in fact, have been discussed, like the fact that somebody could have stubbed his toe in the emergency room when he was under anesthesia.

[00:24:24] Speaker 02:
It's an absurd concept, of course.

[00:24:26] Speaker 02:
And it's meant to be, because what I'm saying is the form just says he was informed of risks and complications.

[00:24:32] Speaker 02:
Now we have to figure out what are the types of risks and complications he would have been informed of.

[00:24:37] Speaker 02:
And unless I'm mistaken, the only piece of evidence that brings us to the conclusion the board reached is the 2007 doctor's report.

[00:24:46] Speaker 00:
The 2007 doctor's report is certainly part of the analysis.

[00:24:49] Speaker 02:
But it's the only piece, because the informed consent document itself doesn't list this as a possible complication.

[00:24:56] Speaker 00:
It does not list

[00:24:57] Speaker 00:
this particular.

[00:24:58] Speaker 02:
And you didn't introduce any evidence, for example, textbooks that say the most common complication associated with this surgery is blank.

[00:25:05] Speaker 02:
You didn't introduce into the record any piece of evidence that would have demonstrated that, right?

[00:25:10] Speaker 03:
Can I ask you this?

[00:25:11] Speaker 03:
How would you introduce evidence at the board?

[00:25:17] Speaker 00:
How would someone, anyone?

[00:25:20] Speaker 00:
I'm sorry, Your Honor.

[00:25:22] Speaker 00:
Generally, the board does not

[00:25:28] Speaker 00:
seek out specific testimony, for example, from the doctor.

[00:25:33] Speaker 00:
It asks if it does have the power to, and this is referenced in the briefs.

[00:25:37] Speaker 03:
The board has a record.

[00:25:39] Speaker 00:
Right.

[00:25:39] Speaker 00:
It reviews a record, but it can decide that there needs to be more information.

[00:25:44] Speaker 00:
And this happened in this case.

[00:25:45] Speaker 00:
The documentation of the informed consent wasn't there.

[00:25:49] Speaker 00:
It went back and looked for those documents.

[00:25:50] Speaker 00:
It was added to the record.

[00:25:54] Speaker 05:
The informed consent document is not the only evidence upon which

[00:25:58] Speaker 05:
The board relies, doesn't it?

[00:26:03] Speaker 00:
No, Your Honor.

[00:26:03] Speaker 00:
The informed consent form, there's basically three documents related to this.

[00:26:10] Speaker 05:
They also rely on an absence.

[00:26:12] Speaker 05:
That is, they rely on the failure of the veteran to initially claim that he wasn't told about nerve entrapment for five years, even though he had other dealings.

[00:26:29] Speaker 00:
It does make a credibility determination based on the veteran's testimony.

[00:26:39] Speaker 00:
I'm not sure that that would be considered absence of evidence, but rather in his analysis of the testimony.

[00:26:47] Speaker 05:
They say, in other words, even though he filed a claim for compensation, his initial statement centered on the fact that surgery had not successfully relieved his pain,

[00:26:57] Speaker 05:
And it was not until more than five years into the appeal process.

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

[00:27:01] Speaker 00:
The length of time and the passage of time was certainly part of its analysis, that the reliability of Mr. Schuler's memory and his testimony was implicated by the length of time, the fact that his testimony had changed over time.

[00:27:17] Speaker 00:
At first, he said he hadn't been informed of anything except for the death from anesthesia.

[00:27:24] Speaker 00:
But then there was the forms that were found

[00:27:26] Speaker 00:
showed that he signed a form.

[00:27:27] Speaker 00:
And the anesthesia form, in fact, lists multiple things other than death that were related to Mr. Schuler.

[00:27:34] Speaker 00:
And he signed that document.

[00:27:35] Speaker 00:
And then an additional form, the generic consent form, is an additional form about the hernia procedure.

[00:27:43] Speaker 00:
And then also, there is a treatment note from the doctor giving that consultation signed by the doctor that actually goes through and says, we talked about the risks.

[00:27:52] Speaker 00:
Again, it's generic.

[00:27:54] Speaker 00:
discuss a specific risk.

[00:27:56] Speaker 05:
Where is that in the record?

[00:27:57] Speaker 00:
Yes, that's at page 51 of the index.

[00:28:03] Speaker 00:
It says informed consent certification at the top.

[00:28:06] Speaker 00:
And that's signed by the counseling physician.

[00:28:08] Speaker 00:
The previous page is the consent form.

[00:28:13] Speaker 00:
And again, that's the generic form.

[00:28:16] Speaker 00:
And then the previous page on 49 is the anesthesia consent form.

[00:28:23] Speaker 00:
So those are the contemporaneous pieces of evidence that there was some informed consent discussion that, again, is not as weighty as if it had listed out specific risks, but it's not irrelevant to whether proper informed consent was given.

[00:28:44] Speaker 00:
The board made a factual determination.

[00:28:48] Speaker 00:
It weighed this contemporaneous evidence

[00:28:52] Speaker 00:
with Mr. Shuler's testimony, and in McNair that specific scenario is discussed and is explicitly stated as a factual determination.

[00:29:04] Speaker 02:
So would it be fair to characterize your argument as follows, that even if we, the court, would find it problematic for the board to have made fact findings based on habit or routine based on the assertion of a single doctor,

[00:29:22] Speaker 02:
as a category of evidence and a concern about evidence as a question of law.

[00:29:27] Speaker 02:
There are certain predicates you have to establish foundation.

[00:29:30] Speaker 02:
That's not really an issue in this case, because that's not the way that the board relied on this evidence.

[00:29:35] Speaker 02:
They looked at this evidence as just one piece in conjunction with everything else, and they reached a very case-specific fact-finding.

[00:29:43] Speaker 02:
This is not a case.

[00:29:45] Speaker 02:
for considering what ought to be required before the government to establish habit or routine for disclosures.

[00:29:53] Speaker 00:
I think that's a fair assessment of the argument.

[00:29:56] Speaker 00:
Yes, Your Honor.

[00:29:57] Speaker 00:
I think your time is up.

[00:30:00] Speaker 00:
So why don't we let them have it.

[00:30:01] Speaker 01:
Thank you, Your Honor.

[00:30:07] Speaker 04:
Your Honor, I just have a minute, and I think that's all I need.

[00:30:15] Speaker 04:
Your Honor is absolutely right in pointing out that the only evidence at all that raised anything more than the possibility that Mr. Shuler was told is the doctor's statement if it is treated as habit and routine evidence, because everything else simply raises the possibility.

[00:30:29] Speaker 04:
Yes, he had a discussion about risks and complications, but we don't know what was discussed.

[00:30:34] Speaker 04:
It was a generic form sign.

[00:30:35] Speaker 04:
It doesn't say anything about this risk.

[00:30:37] Speaker 04:
So the only thing that indicates that it probably would have been discussed is this doctor's statement, which was admitted and which we think was improperly relied upon.

[00:30:47] Speaker 04:
As Your Honor wrote in your concurrence in Gamble, where these administrative processes are informal, and Congress clearly wanted them to be informal, you still have to preserve the fundamental fairness of the process.

[00:31:02] Speaker 04:
And that's citing the Richardson case from

[00:31:05] Speaker 04:
Supreme Court and this court's decision in Haad, which also mentions the appearance of reasonableness and fairness.

[00:31:13] Speaker 04:
And here we've got the use of evidence that had no foundation, and the Veterans Court allowed that to be used to establish the crucial fact in the case, which is he was told.

[00:31:26] Speaker 04:
And if that's what is going to be permitted, then Congress really did fail in creating a system of judicial review.

[00:31:33] Speaker 05:
Could the board have inferred from the use of the word risk, plural, that the doctor is saying he told them about all the risk?

[00:31:43] Speaker 04:
I think that is what the board did infer.

[00:31:45] Speaker 04:
It sort of assumed that if there was a discussion about risk.

[00:31:47] Speaker 05:
So even though we don't like that, and we think it's pretty sloppy reasoning, they'd have a factual basis for doing that.

[00:31:55] Speaker 04:
Well, they'd have a factual basis for assuming that multiple risks

[00:31:58] Speaker 04:
were discussed, but was this risk discussed?

[00:32:00] Speaker 04:
That's the question.

[00:32:01] Speaker 04:
And the veterans court in McNair said, you can't presume from a generic discussion that risks were disclosed, that a particular risk was disclosed.

[00:32:10] Speaker 04:
And that's what's at issue in a negligence case like this, where the issue is lack of informed consent.

[00:32:17] Speaker 04:
So yes, some risks were probably there.

[00:32:19] Speaker 04:
And he admitted, and he said in 2005, before this was ever an issue in the case,

[00:32:24] Speaker 04:
They asked him, do you remember being told about the risk?

[00:32:26] Speaker 04:
He said, yeah, I remember they told me I could die from the anesthesia.

[00:32:29] Speaker 04:
And that is indeed on the anesthesia consent form.

[00:32:32] Speaker 04:
So we certainly acknowledge some risks were discussed.

[00:32:36] Speaker 04:
But he has adamantly maintained this risk was not discussed.

[00:32:39] Speaker 04:
And there is not a shred of evidence to indicate that it was, other than this doctor's statement, if it's read

[00:32:46] Speaker 04:
to be a statement