[00:00:06] Speaker 04:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Keith Ackerson.

[00:00:11] Speaker 04:
Mr. Ackerson's request for revision of the board's 1985 decision, which reopened his claim for service connection for his post-service disability for seizure disorder, was based upon the board's failure to have considered the provisions of 38 USC 105A, which is the presumption of service connection, and 38 USC 1111, which is the presumption of soundness.

[00:00:36] Speaker 04:
The board in its 2013 decision found that the board in 1985 had implicitly provided to Mr. Atkinson the presumption of soundness, but that the denial was not based upon that presumption.

[00:00:52] Speaker 04:
The board also specifically found that the 2013 decision that in the 2013 decision that the 105A presumption did not in fact create a presumption of service connection.

[00:01:06] Speaker 04:
That finding is in direct conflict with this court's decision in Sheddon.

[00:01:11] Speaker 04:
They found, as the argument was made in Sheddon, that that provision pertained only to line-of-duty determinations and misconduct.

[00:01:20] Speaker 04:
That was a misstatement of law.

[00:01:23] Speaker 04:
The Veterans Court, instead of addressing Mr. Ackerson's averment of board error in failing to correctly apply these statutory presumptions, made a clear error of law

[00:01:34] Speaker 04:
when it held that the board was not required to directly apply these statutory presumptions in its review of the 1984 board decision.

[00:01:44] Speaker 04:
Well, in fact, they did consider those.

[00:01:47] Speaker 04:
They did review those provisions.

[00:01:50] Speaker 04:
And the effect of that determination by the Veterans Court was to deny judicial review to Mr. Akerson of the decision that was made by the Board of Veterans Appeals in 2013.

[00:02:03] Speaker 04:
Because the board, in its 2013 decision, addressed those presumptions, the board was required to have correctly applied those presumptions, which Mr. Ackerson contended they did not.

[00:02:15] Speaker 04:
And Mr. Ackerson took an appeal to pursue that issue.

[00:02:19] Speaker 04:
He was denied that right.

[00:02:22] Speaker 04:
This court in Shetland specifically found that Section 105A does, in fact, create a presumption of service connection.

[00:02:31] Speaker 05:
There's only a presumption of service connection if it's established that he had a chronic condition or chronic disease.

[00:02:39] Speaker 05:
And the board made a fact finding, which is beyond the scope of my review, that in light of the record there was no chronic disease demonstrated during service or for many years thereafter.

[00:02:52] Speaker 05:
So I feel like everything else is a house of cards that you built on an unstable platform.

[00:02:56] Speaker 05:
Not because it's wrong, but because I don't have the authority to review the fact finding that was made at the base level.

[00:03:03] Speaker 05:
Everything else you're saying builds upon that fact finding and the fact that it must be incorrect or I must be able to conclude it's incorrect.

[00:03:10] Speaker 05:
But I don't have the authority to do that.

[00:03:13] Speaker 04:
You do have the authority to do that.

[00:03:15] Speaker 05:
You and I both wish I did, but I don't.

[00:03:17] Speaker 04:
No, because

[00:03:19] Speaker 04:
This court does have the authority to review questions of law.

[00:03:23] Speaker 04:
The question of law in this case is the applicability of Section 105A, as well as 1111.

[00:03:30] Speaker 04:
Section 105A pertains not just to diseases.

[00:03:35] Speaker 04:
Where the board made its error, and the Veterans Court relied upon that same error, was to treat this only as a disease.

[00:03:43] Speaker 04:
Service connection is established under the Shedden decision

[00:03:48] Speaker 04:
when there is incurrence or aggravation not just of a disease, but of an injury.

[00:03:55] Speaker 04:
The new and material evidence that was submitted by Mr. Ackerson before the 1985 board decision specifically referenced his post-service disability to the injury in service from being hit in the head with a baseball bat.

[00:04:13] Speaker 04:
There is no dispute he was hit in the head with a baseball bat.

[00:04:17] Speaker 04:
That was an injury.

[00:04:19] Speaker 04:
The question then becomes, did that injury that was sustained while on active duty result in a post-service disability?

[00:04:28] Speaker 04:
He is entitled to the statutory presumption that if, under the court's holding and shedding, there is a present post-service disability, which the new and material evidence established that there was, not merely a progressive seizure disorder, but also a psychiatric disability,

[00:04:45] Speaker 04:
and that there was incurrence of an injury in service being hit in the head by the baseball bat, and then provided the causal relationship between that present disability and the injury in service.

[00:05:00] Speaker 01:
So what was that last part?

[00:05:01] Speaker 01:
I mean, I know you say that there was a connection, but what was the basis for that connection?

[00:05:07] Speaker 04:
The basis for that connection was the medical evidence provided by a Dr. Berthelsen, which is found in the record at appendix 41 to 43.

[00:05:15] Speaker 04:
And Dr. Bertelsen said at page 43 of the appendix, it is quite possible that he, referring to Mr. Ackerson, sustained a significant cerebral concussion from the blow from the baseball bat in 1959, which produced a post-concussion syndrome and a gradual development of a seizure disorder.

[00:05:40] Speaker 04:
That's the nexus.

[00:05:41] Speaker 04:
That's all that's required.

[00:05:43] Speaker 04:
You connect the in-service injury, excuse me, you connect the post-service disability to the in-service injury.

[00:05:50] Speaker 04:
That is precisely what the evidence said in 1985.

[00:05:54] Speaker 04:
Based upon that evidence, he was entitled to the benefit of the presumption of service connection under 105A.

[00:06:02] Speaker 04:
The board, in its 1985 decision, expressly said that that presumption did, excuse me,

[00:06:09] Speaker 04:
the 2013 decision, expressly said that that presumption did not create a presumption of service connection and only dealt with line of duty or willful misconduct.

[00:06:20] Speaker 04:
That is the specific argument that this court rejected in Shetland and found that that statutory presumption permitted the veteran to rely upon the presumption that is provided for under 105A of service connection.

[00:06:39] Speaker 04:
And that if you have, in the language of Shen, the existence of a present disability, the occurrence of an injury during service, and a causal relationship between the two, then you're entitled to presumptive service connection.

[00:06:56] Speaker 04:
That was not afforded in 1985 by the board.

[00:07:00] Speaker 04:
That was not correctly applied by the board in 2013.

[00:07:05] Speaker 04:
And the veterans court refused to allow for consideration of that because they made a legal determination, which is incorrect, that the board was not required to consider those statutory provisions.

[00:07:22] Speaker 04:
And they were.

[00:07:23] Speaker 04:
And that's all that's before this court.

[00:07:25] Speaker 02:
Mr. Carpenter, I see you only started shedding in your blueberry.

[00:07:29] Speaker 04:
Yes, Your Honor.

[00:07:30] Speaker 02:
And you cited it at pages 5 to 6 for a different proposition than you're citing it today.

[00:07:36] Speaker 02:
Well, just look at it.

[00:07:40] Speaker 02:
I mean, it just seems to me, I just said to myself another one of these Ken Carpenter light bulb moments.

[00:07:46] Speaker 02:
The blue brief says one thing, the gray brief says something else, and the oral argument says something entirely different.

[00:07:53] Speaker 02:
So where did you present this Shedden argument?

[00:07:58] Speaker 02:
In your brief, saying that Shedden rejects the proposition that 105A stands for a limited proposition.

[00:08:06] Speaker 04:
I described as a page 5.

[00:08:08] Speaker 04:
At page 5, I quote, it says at the very bottom of the page,

[00:08:17] Speaker 02:
Well, it starts with what the requirements are for... To establish the right to compensation, a veteran must show three things, right?

[00:08:25] Speaker 04:
Correct.

[00:08:26] Speaker 02:
One, they're present to two to do site shedding.

[00:08:29] Speaker 02:
Now, that's the only reference I saw of the shedding in your brief.

[00:08:32] Speaker 02:
That's right, Your Honor, and that establishes... Excuse me.

[00:08:35] Speaker 02:
You've made a more elaborate argument based on shedding here.

[00:08:40] Speaker 04:
Well, I'm attempting to clarify the argument.

[00:08:43] Speaker 02:
Why don't you, Mr. Carpenter, make in your briefs the argument that you make here?

[00:08:49] Speaker 02:
Why do you subject us over and over again to this game?

[00:08:54] Speaker 04:
That is not my intention, Your Honor.

[00:08:56] Speaker 02:
Well, you do it.

[00:08:59] Speaker 02:
Last month in Lloyd, I was on that panel, and you've done it again at the end of the day.

[00:09:04] Speaker 02:
So if you want us to treat

[00:09:06] Speaker 02:
You building a whole argument based on what a case says, why don't you lay it out in your brief?

[00:09:11] Speaker 04:
Well, that's obviously my shortcoming, Your Honor.

[00:09:14] Speaker 04:
It certainly is.

[00:09:16] Speaker 04:
It is, and I acknowledge it.

[00:09:17] Speaker 02:
And you work at trying to overcome this problem?

[00:09:22] Speaker 04:
Every day, Your Honor.

[00:09:25] Speaker 04:
And I apologize to this court for not making the argument.

[00:09:28] Speaker 02:
It's like a child apologizing for something they do wrong over and over and over again.

[00:09:32] Speaker 02:
I heard you apologize for something that you should have done differently.

[00:09:36] Speaker 02:
What's that leave us with?

[00:09:38] Speaker 04:
Well, Your Honor, it obviously was not as clear to me when I wrote the brief as it was when I prepared for- Well, your whole argument was very clear to the Court of Appeals for Veterans Affairs.

[00:09:50] Speaker 02:
I'm sorry, Your Honor?

[00:09:50] Speaker 02:
Remember what the Court of Appeals for Veterans Affairs said about your statutory arguments in their opinion?

[00:09:57] Speaker 02:
Yes, yes.

[00:09:57] Speaker 02:
They said they couldn't understand what you were talking about.

[00:10:03] Speaker 02:
And that, Your Honor, is because there has been a clear disconnect between- And your reliance on the chronic disease issue comes up after your argument, late in front of the CABC, right?

[00:10:19] Speaker 04:
Because that seemed to be one of the problems that the court had in understanding

[00:10:25] Speaker 04:
what the error was below in applying these presumptions, that the chronic disease has its own apparatus for establishing under the regulatory presumption that connection.

[00:10:40] Speaker 04:
But that connection applies, and we argued below specifically, that that new and material evidence did provide the nexus evidence.

[00:10:51] Speaker 05:
I guess I still am back to what I was asking before, which is I don't see this as a chronic disease case.

[00:10:56] Speaker 05:
I don't see this as a case in which you get the benefit of the 303 presumption because there is no proof, and even if there were, I couldn't review a fact finding to the contrary, but there's no proof that there was a chronic disease that manifested during service or within a year of post-service.

[00:11:12] Speaker 05:
He is currently diagnosed with a seizure disorder.

[00:11:15] Speaker 05:
If you want this to fall under the 303 presumption, you have to establish the seizure disorder as a chronic disease was during service or within one year.

[00:11:24] Speaker 05:
So if now your argument is, I'm not arguing for the chronic disease presumption under 303, I'm instead arguing for nexus flowing from the back.

[00:11:34] Speaker 05:
Do you understand my problem?

[00:11:36] Speaker 05:
I'm just trying to figure out which path you're trying to take me down.

[00:11:39] Speaker 05:
And I don't buy the 303 one, because I just don't see how it fits in the criteria under the regulation.

[00:11:44] Speaker 05:
And I also don't have the authority to review fact findings.

[00:11:47] Speaker 04:
I understand that, Your Honor.

[00:11:48] Speaker 04:
That was presented to the court below in terms of the way in which a veteran is capable of establishing, independent of actual evidence, a regulatory presumption of nexus.

[00:12:03] Speaker 04:
by showing a chronic disease.

[00:12:06] Speaker 04:
I argued below that the testimony from Dr. Berthelsen described symptoms and manifestations of the same chronic condition that Dr. Berthelsen said, I believe, gradually developed to a seizure disorder.

[00:12:23] Speaker 04:
Now, I appreciate the fact that that 303B argument may not prevail.

[00:12:29] Speaker 04:
But the legal error here by the Veterans Court

[00:12:32] Speaker 04:
was to say that those statutory presumptions

[00:12:36] Speaker 04:
that don't have anything to do directly with 303B were not required to be considered by the board.

[00:12:43] Speaker 05:
I just don't understand at all your presumption of soundness argument.

[00:12:47] Speaker 05:
Nobody is disputing that he was completely sound when he came into military service.

[00:12:52] Speaker 05:
There's no dispute he got hit on the head with a baseball bat.

[00:12:56] Speaker 05:
There's no dispute that there were some injuries flowing from that.

[00:12:59] Speaker 05:
Your problem is establishing a nexus between the seizure disorder, which was first diagnosed many, many, many years later,

[00:13:06] Speaker 05:
and the baseball bat injury.

[00:13:08] Speaker 05:
That to me, if we put aside all the chronic disease stuff, which I don't understand at all being relevant here because of, not that seizure disorder is not a chronic disease, but the fact of whether or not it's entitled to the 303 presumption, just to be clear.

[00:13:22] Speaker 05:
So what you have to do is prove that there's a link between the seizure disorder

[00:13:26] Speaker 05:
and the board made a fact-finding that you hadn't established a nexus, and the government points to the evidence that your doctor said could probably have been caused, whatever.

[00:13:35] Speaker 05:
You know, I mean, I might well have gone the other way, and if I had fact-finding authority, I might well go in your favor, but I don't.

[00:13:43] Speaker 05:
The government has pointed to evidence that establishes on this record your failure to establish that required nexus between the baseball bat hit and the later seizure disorder.

[00:13:53] Speaker 05:
Well, I don't understand what you want me to do.

[00:13:55] Speaker 05:
I don't see how the presumption of soundness has a lick of anything to do with this.

[00:13:59] Speaker 04:
Well, Your Honor, before I talk about the presumption of soundness, the reason that we are here is because an error by the Veterans Court.

[00:14:09] Speaker 04:
The Veterans Court said that these presumptions were not required to be considered by the board.

[00:14:15] Speaker 04:
That is an error of law.

[00:14:17] Speaker 04:
That is an incorrect statement of law.

[00:14:18] Speaker 05:
Where did they say that?

[00:14:19] Speaker 05:
Where did they say?

[00:14:20] Speaker 04:
That they say that at page three

[00:14:22] Speaker 04:
of the decision below, which I believe is in Appendix Number 3.

[00:14:32] Speaker 04:
In the middle of a page, the first full paragraph is a preliminary matter.

[00:14:36] Speaker 04:
The court notes that although Mr. Ackerson asserts in his initial brief that the decision on appeal is erroneous because the board failed to properly apply Sections 1111 and 105A, the board was not required to directly apply these decisions

[00:14:50] Speaker 04:
in the review of the 1985 decision.

[00:14:53] Speaker 05:
Rather, it was required to determine whether there was Q in that decision.

[00:14:57] Speaker 05:
It doesn't seem to me what they're saying.

[00:15:00] Speaker 05:
And look above.

[00:15:01] Speaker 05:
It says further, Section 105 doesn't relieve the obligation to provide nexus evidence.

[00:15:07] Speaker 05:
And I don't know.

[00:15:09] Speaker 05:
In context, I don't read this Veterans Court as saying veterans aren't entitled to a presumption of soundness.

[00:15:14] Speaker 05:
What I read them as saying is the presumption of soundness as they say it expressly.

[00:15:17] Speaker 05:
The presumption of soundness does not relieve a veteran

[00:15:20] Speaker 05:
of the obligation to show the presence of a current disability and demonstrate a nexus between the disability and the in-service injury.

[00:15:27] Speaker 05:
I certainly do not understand them as suggesting that veterans are not entitled to the presumption of soundness, but rather I understand them as saying, that's not the problem here.

[00:15:35] Speaker 05:
The problem here is nexus.

[00:15:37] Speaker 04:
I'm not saying that that's what the veterans court said about the presumption.

[00:15:44] Speaker 04:
What I am saying is that what they did say clearly

[00:15:48] Speaker 04:
and unequivocally was the board was not required to consider that the board was required to consider the board actually did consider both of those presumptions i'm not asking this court to review the facts i was asking the veterans court to review the facts

[00:16:04] Speaker 04:
And the Veterans Court slammed the door.

[00:16:06] Speaker 04:
The Veterans Court said, no, we will not review those facts.

[00:16:10] Speaker 05:
Because you didn't establish nexus.

[00:16:13] Speaker 05:
So I'm not going to review whether the board screwed up in three places, because there's one place they clearly didn't screw up, and that ends your case.

[00:16:23] Speaker 05:
All right, you've used all your time.

[00:16:24] Speaker 05:
Let's wait for, I'll restore some for rebuttal.

[00:16:28] Speaker 05:
Let's hear the other side.

[00:16:35] Speaker 05:
Please proceed.

[00:16:37] Speaker 00:
Good morning, your honors.

[00:16:38] Speaker 00:
May it please the court?

[00:16:41] Speaker 00:
This court should affirm the decision of the Veterans Court because the Veterans Court did not err in misinterpreting 105A, 1111, or the statutory presumptions under 1112 when evaluating Mr. Ackerson's claim for disability compensation.

[00:17:00] Speaker 00:
Additionally, although Mr. Ackerson attempts to frame his argument as one of misinterpretation of the statutory presumption, at the heart of his argument

[00:17:11] Speaker 00:
Is his disagreement with the board's factual finding in 1985 that the letter he continues to refer to as the Nexus letter did not establish direct evidence of Nexus under 303A or trigger the presumption under 303B?

[00:17:29] Speaker 05:
Because it's quite probable and also because that's a fact finding we can't review.

[00:17:34] Speaker 00:
Yes, Your Honor.

[00:17:35] Speaker 00:
Therefore, this court has no jurisdiction.

[00:17:37] Speaker 00:
And the board, both in 1985 and 2013, set forth the fact that the letter was qualified and, in fact, was inconsistent with the medical evidence that was in the record at that time.

[00:17:50] Speaker 00:
And again, that goes also to the Q analysis, which shows that there is not an undebatable error in the record that would manifestly change the outcome because the record was in conflict with

[00:18:03] Speaker 00:
the qualified medical opinion at that time.

[00:18:07] Speaker 02:
Do you understand the argument Mr. Carver was making today based on Shedding?

[00:18:12] Speaker 00:
I believe I understand the argument, Your Honor, and I believe it's the same argument that's been rejected in Shedden, in Holton, and Die.

[00:18:21] Speaker 02:
Well, run me through that, because you knew from my colloquy with Mr. Carpenter that I was somewhat surprised that he was making what I would call a very large argument, actually an argument central to his appeal here, based on Shedden, that he hadn't elaborated in his brief.

[00:18:35] Speaker 00:
Yes, Your Honor.

[00:18:36] Speaker 00:
And from what I can take away from the argument, I do believe it's the same argument he made in Shedden where the court is referring to service connection in the more limited sense of the second element of the 303A test, not in the broader sense of establishing nexus of the third element.

[00:18:57] Speaker 00:
This court held in Shedden that

[00:19:00] Speaker 00:
the line of duty presumption goes to the second element of the test, but the veteran is still obligated to establish a current disability as well as the nexus.

[00:19:11] Speaker 00:
And so I believe Mr. Ackerson's argument is simply that 105A

[00:19:18] Speaker 00:
That presumption establishes nexus.

[00:19:21] Speaker 02:
And that's what I was understanding him to argue, which I recall that was the argument he had made as counsel in the earlier case in law.

[00:19:31] Speaker 02:
So I was surprised to hear it.

[00:19:34] Speaker 00:
I might be wrong on the argument, Your Honor, but that's my impression of the argument.

[00:19:38] Speaker 00:
And the same applies with his argument regarding 1111, that the presumption establishes nexus.

[00:19:45] Speaker 00:
This argument's been rejected in Holton and Dye.

[00:19:49] Speaker 00:
And it's been expressly held by this court that 1111 goes to the second element of the disability test.

[00:19:58] Speaker 00:
And the veteran is still required to prove current disability.

[00:20:02] Speaker 00:
and nexus and that's the problem with this case going back to the factual finding

[00:20:07] Speaker 00:
The board, both in 1985 and 2013, found the veteran had not established nexus under 303A with the evidence of record and did not trigger the presumption under 1112.

[00:20:20] Speaker 00:
Again, that's a factual finding for which this court does not have jurisdiction.

[00:20:25] Speaker 02:
And in reading Mr. Carpenter's briefs here, did you understand him to be actually making a chronic disease entitlement argument here?

[00:20:33] Speaker 00:
In his initial brief before the Veterans Court, it seemed to be more narrowed and specific to a direct evidence argument.

[00:20:43] Speaker 00:
bringing in the 105 and 1111 presumptions to say that Nexus had been established.

[00:20:50] Speaker 00:
The argument did seem to change to the request for reconsideration, which then was stating the letter triggered the 1112 presumption.

[00:21:00] Speaker 00:
So the argument did seem to change, but it fails over.

[00:21:04] Speaker 02:
And then in the briefs here, I read his reply brief here in particular to be in essence

[00:21:10] Speaker 02:
putting his eggs in a chronic disease basket.

[00:21:13] Speaker 02:
Did you read it the same way?

[00:21:14] Speaker 00:
Yes, Your Honor.

[00:21:15] Speaker 02:
Because he seems to be retreating from that position here now today and saying in response to Judge Moore, who pointed out that his chronic disease argument is impaired, oh, I didn't really make it as a merits argument.

[00:21:29] Speaker 02:
I made it as an example to educate both the Court of Veterans' Appeals and us as to what he's really talking about about the other two statutes.

[00:21:38] Speaker 00:
Yes, Your Honor.

[00:21:39] Speaker 00:
And regardless of the argument he is making, whether it be a 303A or a 303B argument, it comes down to his disagreement with the 1984 letter, which again,

[00:22:03] Speaker 00:
is a factual finding that this court does not have jurisdiction to review.

[00:22:09] Speaker 00:
And as the Veterans Court found, 105A and 1111 simply aren't at issue in the case.

[00:22:15] Speaker 00:
So there's no misapplication of the statutory presumptions.

[00:22:20] Speaker 00:
The same applies for 1112.

[00:22:21] Speaker 00:
There's no question that the chronic disorder did not have its onset during his service or within the presumptive period.

[00:22:29] Speaker 00:
So there's no misapplication of 1112.

[00:22:33] Speaker 02:
Isn't this case an example of a case that we see quite often where new and material evidence is produced well after a first initial claim, and that if all of the information that is now a record had been a record when the claim was first filed, the result would be different if you have an earlier effective date?

[00:22:51] Speaker 00:
Yes, Your Honor.

[00:22:52] Speaker 00:
That's exactly this case, the letter in 19.

[00:22:54] Speaker 02:
And that's a sad circumstance, but the fact is that new and material evidence doesn't earn you an earlier effective date.

[00:23:01] Speaker 00:
Yes, Your Honor.

[00:23:02] Speaker 00:
That is exactly this case.

[00:23:06] Speaker 00:
If Your Honors have no further questions, we'd ask that this Court affirm the opinion of the Veterans Court.

[00:23:11] Speaker 05:
Thank you, Ms.

[00:23:12] Speaker 05:
McGrory.

[00:23:13] Speaker 05:
Mr. Carpenter will establish two minutes of rebuttal time.

[00:23:23] Speaker 04:
In relationship to the reopening aspects, in this case, factually,

[00:23:31] Speaker 04:
there was an early 1980 application that was denied, appealed to the board, affirmed in 1983.

[00:23:38] Speaker 04:
After that board decision, he got this letter from Dr. Berthelsen.

[00:23:43] Speaker 04:
That was the new and material evidence.

[00:23:45] Speaker 04:
When a case is reopened with new and material evidence, then it is supposed to be considered under all applicable provisions of law.

[00:23:54] Speaker 02:
The assertion of clear... That was the first letter from the first analyst or psychiatrist, right?

[00:24:00] Speaker 02:
There are two doctor's letters in the record, but the first reopening was based on the first letter.

[00:24:06] Speaker 04:
That's right.

[00:24:07] Speaker 02:
It wasn't as conclusive as the second letter about a Nexus Connect.

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

[00:24:11] Speaker 04:
And the question then becomes, for purposes of revision, and just to follow up your colloquy with the government, in 1993, Mr. Ackerson did submit another application, and eventually that application was granted based upon even more clarifying

[00:24:29] Speaker 04:
evidence.

[00:24:29] Speaker 04:
And now he has an effective date for 1993.

[00:24:32] Speaker 04:
In this case, it was only about getting an effective date back sometime between 1983 and 1985 for the date that it was applied.

[00:24:41] Speaker 04:
But when that happened,

[00:24:43] Speaker 04:
The board in 1985 was under the obligation to reconsider all applicable provisions of law and regulation.

[00:24:55] Speaker 04:
They did not consider either the presumption of service connection or the presumption of soundness.

[00:25:02] Speaker 04:
In regards to the presumption of soundness, the presumption of soundness is defined in Shannon and it has those three elements

[00:25:12] Speaker 04:
that are described that I cited at page five of my brief that established the right to service-connected disability.

[00:25:19] Speaker 04:
This case ultimately is about whether or not the board in 1985 correctly denied service connection for a seizure disorder that was the result of an injury.

[00:25:30] Speaker 04:
And that evidence was satisfactory to trigger that presumption.

[00:25:35] Speaker 04:
And that's what

[00:25:37] Speaker 04:
we attempted to do in requesting revision.

[00:25:40] Speaker 05:
Thank you, Mr. Carpenter.

[00:25:41] Speaker 05:
The time is up.

[00:25:42] Speaker 05:
The case is submitted.