[00:00:37] Speaker 02: Okay, the next case before the court is Williams versus McDonald, case number 157103, appeal from a decision of the Court of Veterans Appeals. [00:00:53] Speaker 02: Mr. Collins Chase, you want three minutes for the vote? [00:01:11] Speaker 03: Go ahead. [00:01:12] Speaker 03: Good morning. [00:01:12] Speaker 03: May it please the court. [00:01:14] Speaker 03: The Veterans Court erred in this case in interpreting section 1111 when it held that the VA successfully rebutted the presumption of sound condition by clear and unmistakable evidence based on a record containing contrary medical opinions rendered by competent medical examiners. [00:01:31] Speaker 03: The board here and the Veterans Court relied on two medical opinions that stated that Mr. Williams's congenital back disability was not aggravated by his service in the Marine Corps. [00:01:41] Speaker 03: but they dismissed a third medical opinion that the Veterans Court described as contradictory. [00:01:47] Speaker 03: In 2010, Mr. Williams's private physician, who had examined him numerous times in connection with his back disability, submitted a medical opinion in support of his claim. [00:01:57] Speaker 03: The Veterans Court noted that the court did not question the competency of the 2010 opinion. [00:02:02] Speaker 01: Counsel, when I look at your argument and what you're bringing before us, [00:02:08] Speaker 01: run into a problem in that I want to be sure that I'm not reweighing evidence and that this isn't just a case involving, you're asking the court to reweigh evidence, which you know we cannot do. [00:02:23] Speaker 01: So what's the legal question? [00:02:24] Speaker 01: Can you take us right to the legal point here? [00:02:28] Speaker 03: Yes, Judge Raina. [00:02:29] Speaker 03: So without looking at any of the facts, taking the facts just as undisputed as recited by the Veterans Court, you have a situation where the record contains [00:02:37] Speaker 03: Two opinions that the Veterans Court said pointed one way against Mr. Williams, and one that it said pointed in Mr. Williams's favor. [00:02:46] Speaker 03: The Veterans Court also stated, and it's undisputed, that the opinion by the 2010 doctor was not questioned for competency, and that it was entitled to at least some weight. [00:02:57] Speaker 03: So our argument is that as a legal matter, the clear and unmistakable evidence standard is a very high one. [00:03:03] Speaker 03: It's supposed to be a high burden for the government [00:03:05] Speaker 03: And it requires that there be no debate about the evidence. [00:03:08] Speaker 03: Reasonable minds cannot differ. [00:03:11] Speaker 03: And so here, where you have doctors who are competent and their opinions entitled to some weight, we believe that that is a difference of reasonable minds that should preclude a finding of clear and unmistakable evidence. [00:03:22] Speaker 01: So you're arguing that the Venice administration has misinterpreted or misapplied that legal standard? [00:03:30] Speaker 03: Yes, Judge Raina. [00:03:30] Speaker 01: And that's the legal question? [00:03:32] Speaker 03: Yes, Judge Raina. [00:03:34] Speaker 03: Place I point you to is the statement on Appendix Page 2, where the Veterans Court says that the board is entitled to review the evidence in toto and is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. [00:03:50] Speaker 03: There can be some conflicting evidence, as this court noted in Kent, for example, a conflict between clean entrance examination and subsequent medical review. [00:04:01] Speaker 03: However, the conflict here is between post-entrance medical examinations that have been found to be competent and credible. [00:04:09] Speaker 03: And our position is that that is the prototypical situation where reasonable minds have differed on the point of- When you say competent and credible, these are two different things. [00:04:18] Speaker 02: I mean, isn't the point that even if the doctor's competent to render an opinion, that the board was unpersuaded by the opinion because [00:04:30] Speaker 02: Ultimately, the opinion didn't even identify the date of injury or the circumstances of the injury. [00:04:36] Speaker 02: So we don't even know what they're pointing to. [00:04:40] Speaker 03: Yes, Your Honor. [00:04:41] Speaker 03: The fact is, though, that the board still considered the opinion. [00:04:45] Speaker 03: In other cases, the board would say something like, this opinion is entitled to no probative value, or that the doctor was not competent to render the opinion. [00:04:55] Speaker 03: And as just a couple examples of where that could happen, because I'd like to make clear, [00:04:59] Speaker 03: We're not saying that the board is not allowed to assess the evidence. [00:05:02] Speaker 03: That's not our argument. [00:05:03] Speaker 03: The board has to assess the evidence and determine if each piece is competent and credible and assign it some degree of weight. [00:05:11] Speaker 03: Our position is that once the board does that and finds that there is competent, credible evidence pointing in different directions, the evidence is not unmistakable. [00:05:20] Speaker 01: So the board faults Mr. McDonald's case because his physician did not identify the point [00:05:28] Speaker 01: of the onset of the back problems and said, you know, you don't identify this. [00:05:33] Speaker 01: But doesn't that run afoul to the presumption of soundness? [00:05:36] Speaker 01: Because there's already a presumption there that Mr. Williams did not have this back problem when he entered into the service. [00:05:49] Speaker 03: I think I would agree with that, Judge Raina. [00:05:52] Speaker 03: Interesting thing about the 2010 opinion, which is at appendix page 444, is that the doctor describes that there is degenerative disc disease and states that Mr. Williams's condition is the leg pain, for example, as a result of his original back injury. [00:06:09] Speaker 03: This is a doctor who at this time had already examined Mr. Williams on 10 separate occasions. [00:06:14] Speaker 03: And I believe it's appendix page. [00:06:16] Speaker 02: But you're not disputing the conclusion that he had congenital spinal disease, right? [00:06:24] Speaker 03: No, we're not disputing that the condition was pre-existing. [00:06:26] Speaker 03: The two different types of congenital. [00:06:29] Speaker 03: We're not disputing that the condition was pre-existing and that the government has rebutted that first prong of the presumption of sound condition. [00:06:36] Speaker 03: What we are looking at is the issue of aggravation. [00:06:41] Speaker 02: But how do I know whether a [00:06:44] Speaker 02: How do I know whether an opinion that aggravation occurred is a credible opinion if I don't know if that opinion doesn't even disclose when or how it occurred? [00:06:56] Speaker 02: It just says dates to the original injury. [00:06:58] Speaker 02: What do we know? [00:07:00] Speaker 03: Well, what we know from looking at the medical records is that that was a June 2010 medical opinion. [00:07:06] Speaker 03: If we go back to February of 2009, when the private doctor began examining Mr. Williams, he recounted the full history. [00:07:13] Speaker 03: that he has a chief complaint of low back pain, which originally began in 1975. [00:07:18] Speaker 03: He was previously in the military at that time. [00:07:21] Speaker 03: The board has critiqued the doctor for not having access to certain records, although there's no indication of that in the record. [00:07:28] Speaker 03: But he was clearly aware of Mr. Williams's full history. [00:07:31] Speaker 03: The board merely speculated that perhaps he could have been referring to some other injury, but the records make pretty clear that he knew that 1975 was the onset of this back condition. [00:07:40] Speaker 04: Isn't that a little speculation by you as well, though, that this doctor was necessarily making a medical diagnosis that his current condition is due to some injury that occurred 30 years prior? [00:07:59] Speaker 03: Your Honor, I think that it would be, to some extent, and the better way to look at it is to look at what the Veterans Court said. [00:08:07] Speaker 03: And the record that we have that's the undisputed record is that the opinion is competent, and that although it may be entitled to less weight, it is entitled to some weight. [00:08:16] Speaker 02: And that's why- So your view is if an opinion is entitled to any weight, then by definition, they can't meet the clear and unmistakable standard. [00:08:27] Speaker 03: That's right, Your Honor. [00:08:29] Speaker 03: I was mentioning before, the board is very good at sussing out opinions that are not credible and not competent, and has done so in a variety of cases. [00:08:38] Speaker 03: Some things that could happen, for example, we've got cases where they're looking at the issue of whether the condition preexisted, and the doctor says, I think it's reasonable to say that it did not. [00:08:48] Speaker 04: Is this how it works in criminal cases? [00:08:50] Speaker 04: You know, clear and convincing evidence something happened, and one side has an expert, the other side has an expert, [00:08:57] Speaker 04: You know, neither of them have been barred from testifying or qualified to testify. [00:09:02] Speaker 04: But ultimately, the jury finds clear and convincing evidence of a person's guilt. [00:09:07] Speaker 04: I mean, just because there's an expert on the other side testifying the other way, that doesn't block a jury from concluding that there's clear and convincing evidence in that situation, right? [00:09:19] Speaker 03: I would agree with that, Judge Chen. [00:09:20] Speaker 01: But do you really? [00:09:21] Speaker 01: I mean, we're looking here at an existing presumption of soundness. [00:09:28] Speaker 01: This is not in a vacuum. [00:09:30] Speaker 01: We don't have two experts testifying in a vacuum. [00:09:33] Speaker 01: And then a situation where you decide who's more credible, there's a presumption of soundness, which means that as a matter of law, up until this point, the veteran did not have these problems when he entered into the service. [00:09:49] Speaker 01: Now it's up to the government to rebut that. [00:09:51] Speaker 03: That's right. [00:09:52] Speaker 03: And what I was going to say is I would agree with that with regard to, for example, preponderance standard. [00:09:56] Speaker 03: where certainly you can weigh the evidence, Clinton convincing is a higher standard, and Clinton unmistakable is a higher standard still. [00:10:03] Speaker 03: And what this court has said with regard to clear and unmistakable error in the Q context is that it is not a balance of the evidence situation. [00:10:12] Speaker 03: Once you have a piece of evidence that goes on the scale, if you have pieces of evidence on both sides that are credible and competent, it's not for the board to do that weighing or balancing. [00:10:21] Speaker 02: Are you familiar with the medical records here? [00:10:24] Speaker 03: Yes, Your Honor. [00:10:25] Speaker 02: All right, so the two different congenital problems. [00:10:30] Speaker 02: As I understand it, these are congenital problems that may never manifest themselves in any kind of pain or discomfort because they're not your typical spina bifida or your typical spondylolisis or however you pronounce that, right? [00:10:44] Speaker 03: Yes, spina bifida occulta is the type that may not be likely to manifest. [00:10:50] Speaker 02: And that usually manifests itself [00:10:53] Speaker 02: like people that play hard, heavy sports. [00:10:57] Speaker 02: In other words, in this particular instance, I guess, what you're saying is that the manifestation of this, so it's not really aggravation as much as manifestation, maybe never would have occurred but for the boot camp. [00:11:15] Speaker 03: I think that's possible. [00:11:16] Speaker 03: The veteran himself was a high school graduate, 20 years old. [00:11:19] Speaker 03: He had been an active athlete already, wrestling, football, basketball. [00:11:23] Speaker 03: He entered the service in the record. [00:11:25] Speaker 03: It's undisputed that he had no evidence of a condition. [00:11:28] Speaker 03: He'd never had any pain. [00:11:29] Speaker 03: He also has affidavits to that effect from his ex-wife, for example. [00:11:34] Speaker 03: And within nine months, he's discharged as unfit for full duty. [00:11:38] Speaker 03: During that time, they gave him his entrance exam. [00:11:41] Speaker 03: They didn't detect any condition. [00:11:43] Speaker 03: And he then was, within a few months, noted for a lumbar strain, which they described as a possibly worsening condition. [00:11:50] Speaker 03: And just nine months later, he's out of the service. [00:11:53] Speaker 03: The undisputed record shows unequivocally that there was an increase in his symptoms and severity. [00:11:59] Speaker 03: And so the conclusion in the medical board report that there was no aggravation on those facts is completely unsupported. [00:12:07] Speaker 03: That kind of takes us to the next argument, which is that the Veterans Court didn't do a de novo review of this full factual record. [00:12:14] Speaker 03: They're not entitled to refine the facts or reweigh the facts, as you know. [00:12:19] Speaker 03: However, they are required to look de novo at the legal sufficiency of the evidence. [00:12:24] Speaker 03: And here, the undisputed legal record is completely asymptomatic. [00:12:29] Speaker 03: He enters service. [00:12:30] Speaker 03: Nine months later, his condition has progressed to the point where he's discharged as unfit for duty. [00:12:35] Speaker 03: And there's no explanation in the Veterans Court opinion about those facts. [00:12:38] Speaker 03: They don't address those facts and don't address how that could be consistent legally with a conclusion of aggravation. [00:12:45] Speaker 02: That's a fine line between the legal sufficiency of the evidence and the reweighing of the evidence, isn't there? [00:12:51] Speaker 03: I agree, and I think that we have an argument on the legal side of the line, because we can take the undisputed facts. [00:12:57] Speaker 03: The undisputed facts show asymptomatic, discharged in nine months. [00:13:01] Speaker 03: The undisputed facts say that both the 1976 medical board report and the 2011 medical opinion from the VA examiner both concede that the onset of any symptoms or severity was during service, after his boot camp. [00:13:15] Speaker 03: And so even on that undisputed record, I think the Veterans Court should do an analysis to know the legal sufficiency on the point of aggravation. [00:13:22] Speaker 04: Can you just really quickly explain to me why your position is just this logical matter, not inconsistent with Kent? [00:13:33] Speaker 03: Sure, Your Honor. [00:13:33] Speaker 03: And I see I'm into my rebuttal, but I hope I can answer your question. [00:13:38] Speaker 03: Kent presents a very different factual situation from our [00:13:41] Speaker 03: And the government's argued that just as in Kent, we would seek to make the presumption irrefutable. [00:13:46] Speaker 03: That's not the case. [00:13:47] Speaker 03: In Kent, the only evidence that you had favoring the veteran was the clean entrance exam that had specifically tested for the condition. [00:13:55] Speaker 03: The veteran had admitted that at the age of 14, before entry into the service, he had had some hearing loss. [00:13:59] Speaker 03: And that was the condition being tested for. [00:14:02] Speaker 03: So here we have the post-entrance medical exam that the Veterans Court has stated supports Mr. Williams's case. [00:14:10] Speaker 03: You also have Ms. [00:14:10] Speaker 03: Williams' testimony that he never had any pain for the service. [00:14:13] Speaker 04: I guess I'm just going to the statement in Kent where the court said, clear and unmistakable evidence. [00:14:20] Speaker 04: That standard does not require the absence of conflicting evidence. [00:14:23] Speaker 03: Yes. [00:14:24] Speaker 04: So how do we say to the contrary in this scenario? [00:14:32] Speaker 03: I think if you go to the next sentence of Kent, and I'll try to find it here, [00:14:36] Speaker 03: it makes clear that it's actually referring to the conflict between an entrance examination and subsequent evidence. [00:14:43] Speaker 03: So the next sentence of Kent says, the presumption of soundness is rebuttable even in the face of an entrance examination, affirmatively indicating that the condition in question was tested and found not to exist upon the service member's entry into service. [00:14:56] Speaker 03: So Kent presents the situation where the conflict at issue, conflicting evidence was entrance exam, [00:15:02] Speaker 03: and then VA medical exam that finds the condition. [00:15:05] Speaker 03: Whereas what we have here is clean entrance exam, VA opinion and medical board report, and then another piece of evidence. [00:15:12] Speaker 03: And that's not counting the lay evidence from the veteran and his family, but you have the 2010 report as well. [00:15:18] Speaker 03: But even if you discount the 2010 report, we believe it should go back for the de novo review of the full undisputed factual record. [00:15:39] Speaker 00: May it please the court. [00:15:41] Speaker 00: I'd like to start by honing in on the precise legal argument that's being raised by Mr. Williams. [00:15:47] Speaker 00: In his opening brief, it appeared that, as we see it in the issue statement, for example, that it relied solely on competency, that whenever there is a competent medical opinion favoring the presumption, then all other evidence becomes essentially irrelevant and the presumption cannot be rebutted. [00:16:05] Speaker 00: Now in the reply brief and now at argument, [00:16:08] Speaker 00: it appears there's an additional element to this legal standard, which requires that the medical opinion have at least some weight or be credible. [00:16:15] Speaker 00: At page 14 of the reply brief, Mr. Williams said that the board found the 2010 opinion to be both competent and credible. [00:16:24] Speaker 00: And there's a couple problems with this, in addition to the ones we identified in our brief for the general competency standard. [00:16:31] Speaker 00: By adding credibility, it is asking [00:16:34] Speaker 00: the court to re-weigh the evidence, to say whether something is entitled to at least some weight, or a little bit of weight, or very little probative value. [00:16:42] Speaker 00: These are questions of degree that require applying the facts to the law. [00:16:46] Speaker 02: And looking at- Let's just get to the real basic facts here. [00:16:51] Speaker 02: The government concedes that there was no manifestation of this condition until his service, right? [00:17:03] Speaker 00: We can see he did not have symptoms of his general condition. [00:17:06] Speaker 02: OK. [00:17:07] Speaker 02: And so you're supposed to, in order to rebut this, you have to either show that the symptoms preexisted the service or that the symptoms were a natural progression of the disease. [00:17:26] Speaker 02: And my understanding is that this natural progression doesn't necessarily include symptoms. [00:17:33] Speaker 02: that many people spend their whole lives with both of these congenital problems and never have back pain? [00:17:41] Speaker 00: Well, what the 1976 medical examination and the board evaluation found is that he did experience symptoms, but merely an increase in symptoms does not mean there's been an increase in the disability itself. [00:17:57] Speaker 00: It simply means he's experiencing symptoms. [00:18:00] Speaker 00: after the after service he went on to work in a steel foundry doing a quote labor's job. [00:18:08] Speaker 00: So the fact that he experienced an increase in symptoms during service does not mean he experienced aggravation of his congenital condition. [00:18:16] Speaker 02: Even if the symptoms are not a necessary progression of the condition? [00:18:23] Speaker 00: Well, just because they're not a necessary progression doesn't mean they're not a progression. [00:18:27] Speaker 00: In the board's opinion analysis at page 21, the board expressed and found that in weighing the facts, in analyzing the medical opinions, it found that despite his increase in symptoms, he did not experience an increase in his disease. [00:18:45] Speaker 00: That's a factual finding by the board. [00:18:47] Speaker 00: And to the extent that Mr. Williams is saying the board actually found the 2010 opinion credible, the board did not find the 2010 opinion credible. [00:18:56] Speaker 00: To the contrary, it found the other two opinions credible. [00:18:59] Speaker 00: And it's Mr. Williams' own position that those opinions conflict with the 2010 opinion. [00:19:05] Speaker 00: And the board goes on to say that the 2010 opinion is conclusory. [00:19:08] Speaker 00: The board says the basis for the 2010 opinion is unstated, except to have apparently been based on chronic disease. [00:19:15] Speaker 00: Furthermore, as the court has already alluded to, the quote original back injury referenced in the 2010 opinion says nothing about aggravation, first of all. [00:19:26] Speaker 00: It says nothing about service. [00:19:28] Speaker 00: It says nothing about when it was incurred. [00:19:30] Speaker 00: It doesn't acknowledge that there was a post-service injury in September of 1981. [00:19:35] Speaker 00: And despite the fact that the 2010 opinion is decades after that post-service injury, it makes no attempt to identify in [00:19:45] Speaker 00: when it says Mr. Williams, that condition is associated with the original injury. [00:19:49] Speaker 02: Yeah, but in fairness, if he says the original injury and you go back and you look at his records, his earlier records identify the original injury as having occurred during his service. [00:19:59] Speaker 02: So, I mean, I don't know that the doctor has to repeat what's already clearly known in his records. [00:20:05] Speaker 00: Well, the 1976, both the board medical report at 1340, for example, says that Mr. William, quote, specifically denies any back injury prior to or since enlistment. [00:20:18] Speaker 00: So it's certainly not clear, looking at the 1976 evaluations, which are the most contemporaneous that we have in this record. [00:20:24] Speaker 00: that he had any back injury. [00:20:26] Speaker 00: And at page 373 of the board hearing, he was asked whether he had a specific injury in service. [00:20:34] Speaker 00: He said, no. [00:20:36] Speaker 00: Carrying the backpacks rendered him symptomatic, but it was not an injury per se. [00:20:47] Speaker 00: And so I'd like to really point out what the board said, though, because the board did not find this opinion to be credible. [00:20:53] Speaker 00: And Mr. Williams concedes that if the board finds the opinion's not credible, or the board finds that the opinion is conclusory, as was the case in Nieves Rodriguez, a Veterans Court case, or Vanerson, another Veterans Court case, that then it's OK to disregard that type of evidence. [00:21:11] Speaker 00: But here, the board said there is no basis for the 2010 medical opinion. [00:21:17] Speaker 00: So if Mr. Williams is asking the court to weigh [00:21:22] Speaker 00: an opinion the board finds conclusory versus an opinion the board says there's no basis for the opinion. [00:21:28] Speaker 00: This is the sort of thing that gets the court into territory of applying facts to law that this court said in Walzer it could not do. [00:21:37] Speaker 02: I'm still trying to understand this, so let me give you an analogy. [00:21:42] Speaker 02: Say someone walks around with a potential for, you know, [00:21:47] Speaker 02: an aneurysm. [00:21:48] Speaker 02: So I've got a friend that she gets checked all the time. [00:21:51] Speaker 02: They actually found it because she was in for something else. [00:21:55] Speaker 02: And they watch it because something bad could happen. [00:21:58] Speaker 02: So someone has that in their brain. [00:22:01] Speaker 02: And then they enter the Air Force. [00:22:04] Speaker 02: They jump out of an airplane. [00:22:05] Speaker 02: And they're jumping out of the airplane. [00:22:06] Speaker 02: And that pressure causes death from this aneurysm. [00:22:10] Speaker 02: Are you saying that's not an aggravation of this preexisting condition? [00:22:16] Speaker 00: I don't know if I say that in the case of an aneurysm. [00:22:18] Speaker 00: I'm certainly not a medical expert and I'm not really able to articulate well the difference between an aneurysm and a congenital back condition, but what the medical expert said here and what the board found is that simply because he experienced pain did not mean that the underlying condition of the back, the areas in the spine where there was this degeneration, [00:22:38] Speaker 00: that was not worsened. [00:22:40] Speaker 00: It was merely he was experiencing pain because of the activities that he was engaging in. [00:22:43] Speaker 00: When he stopped doing those activities, when he stopped carrying those backpacks and things like that, what the board found is that there was no permanent increase in his underlying disability. [00:22:56] Speaker 00: And it is appropriate, Your Honor, to consider the type of disease that he had, here the congenital disease, [00:23:03] Speaker 00: In the regulation, which Mr. Williams cites in his opening brief, 38 CFR 3.304b, the VA lists in detail the types of evidence that should be considered in deciding whether the presumption has been rebutted. [00:23:23] Speaker 00: It's a different regulation and a different statute enacted in different years than the clear and unmistakable error standard. [00:23:32] Speaker 00: The clear and unmistakable error standard in the regulation itself, which is 20.1403, says reasonable minds cannot differ. [00:23:41] Speaker 00: This is a different and legal standard that is separate from the [00:23:47] Speaker 00: Certainly high standard, but still fact-intensive, clear and unmistakable evidence. [00:23:52] Speaker 00: And one of the types of evidence called out in the regulation is in-service records, post-service records that's cited in this court's opinion in Harris, which in turn is cited in Kent. [00:24:05] Speaker 00: And the regulation specifically says that these types of in-service records, like here the 1976 opinion, the 2011 opinion, must be considered together with [00:24:17] Speaker 00: quote, all other lay and medical evidence, and that all of this evidence, quote, will be taken into full account. [00:24:25] Speaker 00: And the way that this court characterized that standard in Harris is that the fact finder should consider all medically accepted evidence bearing on the issue of preservice, incurrence, or aggravation. [00:24:35] Speaker 00: So that is contrary to Mr. Williams' proposed standard. [00:24:39] Speaker 00: Under Mr. Williams' standard, when there is a competent and potentially entitled to some weight [00:24:45] Speaker 00: opinion, then all other evidence becomes effectively irrelevant. [00:24:49] Speaker 00: And that's contrary to the standard and the regulation requiring consideration of all of the evidence. [00:24:56] Speaker 02: So basically what you're saying is if the veteran has to establish clear and unmistakable error, the burden's a lot higher than if the government has to establish clear and unmistakable evidence. [00:25:11] Speaker 00: It's a legal standard versus an evidentiary weighing. [00:25:14] Speaker 00: And the difference is perhaps best shown by this court's case law. [00:25:18] Speaker 00: In Yates, it's a clear and unmistakable error case. [00:25:22] Speaker 00: The court said this standard is not about the balancing of the evidence. [00:25:26] Speaker 00: It has to be more than that. [00:25:27] Speaker 00: And in contrast, in Walzer, where the veteran alleged that the veteran's court failed to do an adequate sufficiency of the evidence review and was asking this court to do essentially a sufficiency of the evidence review, [00:25:39] Speaker 00: The court said, no, applying the clear and unmistakable evidence standard requires, as a standard of proof, it requires application of facts to the law. [00:25:49] Speaker 00: So it is a difference in a legal standard error versus evidence. [00:25:57] Speaker 00: I'll turn, if I may, to the standard of review issue. [00:26:00] Speaker 00: This case presents a very similar [00:26:03] Speaker 00: issue to the one in Kent. [00:26:05] Speaker 00: In Kent, the court held that although the Veterans Court did not expressly say it was doing a sufficiency of the evidence review or did not expressly say, identify the legal issue, it's by applying the APA standard arbitrary capricious abuse of discretion or violation of law standard by encompassing violation of law that contemplates de novo review. [00:26:27] Speaker 00: And here the Veterans Court did even more. [00:26:29] Speaker 00: It identified the specific legal issue [00:26:32] Speaker 00: raised by Mr. Williams, it rejected it, citing Kent, and it went on to look at all the evidence and said, we find no error. [00:26:41] Speaker 00: And it cited the arbitrary and capricious violation of law standard. [00:26:48] Speaker 00: And I'd like to reiterate again that to the extent that Mr. Williams is just arguing that the Veterans Court didn't do a sufficiency of the evidence review, that's precisely what the court held in Walter. [00:26:58] Speaker 00: It did not possess jurisdiction to adjudicate. [00:27:01] Speaker 00: In Walser, I'll read very briefly from the opinion, Walser argues the Veterans Court erred by refusing to review the evidence de novo to determine whether the evidence was legally sufficient to rebut the presumption of soundness. [00:27:13] Speaker 00: And the judgment in that case was dismissed. [00:27:16] Speaker 00: So to the extent that Mr. Williams is either raising a sufficiency challenge here or arguing that the Veterans Court did not do a sufficiency challenge, that type of argument in Walser is beyond this court's jurisdiction. [00:27:31] Speaker 01: Council, I'm going to direct your attention to page two of the board's memorandum decision. [00:27:38] Speaker 01: And this is with respect to your argument that the board did not accrue the full weight to the 2010 medical report, correct? [00:27:52] Speaker 00: Are you at page two of the board's decision? [00:27:54] Speaker 01: Yes. [00:27:55] Speaker 01: It's on our appendix at 203. [00:28:01] Speaker 01: And at the top of the paragraph says, moreover, the board did not find the 2010 examiner incompetent. [00:28:07] Speaker 01: He goes on and says, the record reflects that the 2010 medical report lacks any opinion tying Mr. Williams' low back condition to the service. [00:28:21] Speaker 01: While the 1976 medical report contains an opinion as low, back condition is not aggravated. [00:28:28] Speaker 01: So he goes on and it faults. [00:28:30] Speaker 01: the opinion for not tying its ultimate opinion to a date when the back injury occurred. [00:28:39] Speaker 01: Now, why would that matter under the presumption of soundness when there's a legal presumption that exists that when Mr. Williams entered the service, he was sound. [00:28:50] Speaker 01: He did not have any back injury or any symptoms of a back injury. [00:28:59] Speaker 00: Well, I think the concern here is certainly the presumption applies. [00:29:04] Speaker 00: And so that's why the clear and unmistakable evidence standard applies. [00:29:08] Speaker 00: But the concern here is that at 444, it's not only that the 2010 opinion doesn't tie it to a specific date and service. [00:29:20] Speaker 00: It doesn't mention service at all. [00:29:22] Speaker 00: So when the 2010 opinion says this relates back to his original back entry, [00:29:29] Speaker 00: As the board explained, there's no indication that that wasn't simply the September 1981 post-service back injury. [00:29:37] Speaker 00: The 2010 opinion really has no analysis regarding aggravation. [00:29:42] Speaker 00: And one last point is that Mr. Williams concedes [00:29:46] Speaker 00: that he incurred this pre-service. [00:29:48] Speaker 00: But applying his categorical rule, there's simply, in future cases, the categorical rule could apply to find that his concededly congenital back condition. [00:29:59] Speaker 01: This is the only place where I see that the board has a problem with the 2010 medical report. [00:30:06] Speaker 01: It's specifically the board gave less weight to the 2000 medical report because the examiner opined on the nexus [00:30:13] Speaker 01: between Mr. Williams's current condition is original without explaining when that back injury occurred. [00:30:19] Speaker 01: So the board is saying what's missing here is that the medical report doesn't tell us when that back injury occurred. [00:30:26] Speaker 01: Why does that matter under presumption of silence when we know there's a legal presumption that it occurred after he entered into service? [00:30:34] Speaker 00: I see I'm almost out of time. [00:30:36] Speaker 00: Well, as an initial matter, the Veterans Court did cite that part of the Board's opinion, but if the Court would like a more complete analysis of the Board's concerns with the 2010 opinion, that appears at Appendix 21 and 22. [00:30:53] Speaker 00: So certainly the question here is, given the presumption and given all of the evidence in the record, is there a legal standard that [00:31:03] Speaker 00: that requires the 2010 opinion to be determinative, to the exclusion of all other evidence. [00:31:08] Speaker 00: And our position is that no, the proper legal rule is found in the statute and the regulation, and it does not forbid consideration of all of the evidence. [00:31:29] Speaker 03: I have a few brief points. [00:31:31] Speaker 03: First, the [00:31:33] Speaker 03: Government, my friend on the other side, has drawn a distinction between clear and unmistakable evidence and clear and unmistakable error. [00:31:39] Speaker 03: But I just wanted to point the Court's attention to how the Veterans Court handles this. [00:31:44] Speaker 03: In the Norris v. Nicholson case a few years ago, the Veterans Court said that the presumption of soundness requires that VA resolve that doubt in favor of the veteran when there are reasonable minds that differ. [00:31:54] Speaker 03: That's typically how it's done. [00:31:55] Speaker 03: It's not a balance of the evidence situation. [00:31:58] Speaker 03: It's a very high bar that doesn't allow for differences of opinion. [00:32:01] Speaker 02: Well, it is a high bar. [00:32:02] Speaker 02: But didn't we and Walter say that you're actually applying the facts to the legal standard? [00:32:11] Speaker 02: And that's what evidence reference means? [00:32:16] Speaker 03: Yes, Your Honor. [00:32:17] Speaker 03: And that's why, in this case, we can get there without looking at any reweighing of the evidence. [00:32:21] Speaker 03: What we can do is we can look at the undisputed evidence [00:32:24] Speaker 03: which the Veterans Court did not do in full. [00:32:27] Speaker 03: That's the basis of our request for remand for de novo review. [00:32:30] Speaker 03: Have the Veterans Court go back and look at the undisputed, unequivocal manifestation of symptoms and severity that started after boot camp, when there's clear evidence that's undisputed that there were no symptoms before entrance into the service. [00:32:44] Speaker 03: And on that point of symptoms and severity, I just want to note that under 1153, aggravation is an increase in disability. [00:32:52] Speaker 03: An increase in disability doesn't need to be necessarily a worsening of some sort of structural aspect of the condition. [00:32:59] Speaker 03: Some aspects of disability could lead to an increased rating simply based on an increase in pain. [00:33:04] Speaker 03: And with the legs, for example, I believe that the lowest rating is 10% for mild leg pain. [00:33:10] Speaker 03: So there's no evidence in the record that Mr. Williams' admitted leg pain doesn't go from zero to at least mild, which would be an increase in disability. [00:33:19] Speaker 03: And that's what we believe the Veterans Court should look at. [00:33:22] Speaker 03: blanket statement of aggravation on the one hand versus the unequivocal evidence that the onset of pain and symptoms, including back and legs, were during his service. [00:33:32] Speaker 03: Thank you. [00:33:32] Speaker 03: Thank you.