[00:00:34] Speaker 00:
The next case is Roscoe Bonner versus the Department of Veterans Affairs, 16-1589.

[00:00:40] Speaker 00:
Mr. Sheng.

[00:00:49] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:52] Speaker 03:
This case is about what it means for the Secretary to make the reasonable efforts he is statutorily required to make under Subsection A. What Subsection A says, Your Honors, is that the Secretary

[00:01:04] Speaker 03:
shall make reasonable efforts to assist a veteran obtain evidence.

[00:01:08] Speaker 03:
And the only exception to that requirement is where no reasonable possibility exists that such assistance would aid the veteran.

[00:01:15] Speaker 00:
Aren't these fact questions?

[00:01:17] Speaker 03:
No, Your Honor.

[00:01:18] Speaker 03:
The failure to consider the reasonable standard or the reasonable efforts of the secretary is a legal question.

[00:01:29] Speaker 00:
Whether the efforts were reasonable sounds fact.

[00:01:33] Speaker 03:
Your Honor, the Veterans Court failed to even consider the reasonableness of the Secretary's efforts.

[00:01:39] Speaker 03:
The Veterans Court stated that the Secretary was not statutorily mandated to make any further efforts on behalf of Mr. Bonner.

[00:01:48] Speaker 03:
And the Veterans Court failed to consider subsection A's requirement that the Secretary make reasonable efforts to assist Mr. Bonner.

[00:01:54] Speaker 01:
So you keep referring to subsection A. Subsection A of what, precisely?

[00:01:58] Speaker 03:
Subsection A1, Your Honor.

[00:02:01] Speaker 01:
Of what?

[00:02:02] Speaker 01:
A statute?

[00:02:02] Speaker 01:
A regulation?

[00:02:03] Speaker 01:
Can you give us?

[00:02:04] Speaker 01:
Section 5, yes, 38 U.S.C.

[00:02:06] Speaker 03:
Section 5103, capital A, little a. Thank you.

[00:02:09] Speaker 03:
I apologize, Your Honor.

[00:02:11] Speaker 03:
What subsection A says of Section 5103, capital A is that the Secretary shall make reasonable efforts to assist a veteran to obtain evidence.

[00:02:18] Speaker 03:
And the Veterans Court failed to consider that question.

[00:02:22] Speaker 03:
And in this case, Your Honors, the VA's efforts, the Secretary's efforts in this case were remarkably unreasonable.

[00:02:30] Speaker 03:
The VA understood that Mr. Bonner's records, which date back to 1975, could have been moved to archives, could have been placed in a storage at another location.

[00:02:40] Speaker 00:
But if you look further, as I know you have, into 5103A, there's a futility exception.

[00:02:51] Speaker 03:
Yes, Your Honor.

[00:02:52] Speaker 00:
And aside from that being fact, it seems as though it was met here because they

[00:02:59] Speaker 00:
thoroughly looked and found that there was nothing during that 20-year period.

[00:03:06] Speaker 03:
Let me respond to that question by making two points, Judge Laurie.

[00:03:09] Speaker 03:
The first point, Your Honor, is that there was no finding by the Veterans Court that further efforts to obtain these records would have been futile.

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Now, we've argued in our briefs, and I won't spend time re-arguing these points here, the Veterans Court did make a statement that Mr. Bonner had failed to persuade the court that he was right.

[00:03:27] Speaker 03:
And we've argued in our briefs that that was

[00:03:29] Speaker 03:
insufficient as a matter of law.

[00:03:30] Speaker 03:
But the point that I want to emphasize, Your Honor, is that a finding of futility based on an erroneous interpretation of what reasonable efforts are, or in this case, a failure to consider reasonable efforts under subsection A, can't stand.

[00:03:45] Speaker 03:
You can't have a finding of futility here when up here there were no reasonable efforts.

[00:03:51] Speaker 03:
Does that address your question, Judge Laura?

[00:03:54] Speaker 01:
So what do you understand to be the difference between no reasonable possibility exists that such assistance would aid in substantiating the claim and futility?

[00:04:07] Speaker 01:
Is there distance between those two verbal formulations?

[00:04:13] Speaker 03:
I don't think there is a distinction.

[00:04:16] Speaker 03:
I think they would be the same.

[00:04:19] Speaker 03:
But again, going back to Judge Laurie's question,

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There wasn't a finding of futility in this case.

[00:04:25] Speaker 03:
But again, even if there was, even assuming that there was a finding of futility here, a finding of futility based on a failure to consider whether or not the VA's efforts were reasonable, can't stand them.

[00:04:36] Speaker 03:
And the VA's efforts here were unreasonable.

[00:04:39] Speaker 03:
20 years.

[00:04:41] Speaker 02:
But we can't review that.

[00:04:43] Speaker 02:
We can't review whether their efforts were unreasonable.

[00:04:49] Speaker 02:
That's a fact question.

[00:04:51] Speaker 03:
Right, Your Honor.

[00:04:53] Speaker 02:
I agree with you.

[00:04:54] Speaker 02:
They were unreasonable.

[00:04:55] Speaker 02:
An employee saying this is all I can find once doesn't seem like enough to me.

[00:04:58] Speaker 02:
But I don't get to make that decision.

[00:05:00] Speaker 02:
I don't have that review authority.

[00:05:02] Speaker 02:
Congress didn't see fit to let me review fact findings.

[00:05:04] Speaker 02:
And you agree that is a fact finding.

[00:05:07] Speaker 03:
Respectfully, Judge Moore.

[00:05:10] Speaker 03:
Again, this goes back to Judge Laurie's question.

[00:05:12] Speaker 03:
There wasn't a finding of futility.

[00:05:14] Speaker 03:
There's no finding of futility in the opinion, as I read it, respectfully.

[00:05:18] Speaker 01:
In which opinion?

[00:05:20] Speaker 03:
In the Veterans Court's opinion?

[00:05:22] Speaker 01:
It doesn't make findings.

[00:05:24] Speaker 01:
That would be a fat question for the board.

[00:05:26] Speaker 01:
Right.

[00:05:27] Speaker 01:
Did the board make a determination about the sufficiency of the efforts to get the records?

[00:05:37] Speaker 03:
I believe so.

[00:05:38] Speaker 03:
And I apologize if I misspoke.

[00:05:40] Speaker 03:
The Veterans Court didn't really address that issue.

[00:05:41] Speaker 03:
Didn't address the issue.

[00:05:42] Speaker 02:
Sure they did.

[00:05:43] Speaker 02:
On page, look, what am I reviewing?

[00:05:45] Speaker 02:
Am I not in the right opinion?

[00:05:47] Speaker 02:
Let's see.

[00:05:48] Speaker 02:
The opinion that you attached to the back of your brief.

[00:05:51] Speaker 02:
Yeah, then this is the Veterans Court opinion.

[00:05:53] Speaker 02:
Judge Mormon, right?

[00:05:55] Speaker 02:
He's the Veterans Court judge.

[00:05:57] Speaker 02:
Look on page six.

[00:05:59] Speaker 02:
They discuss the reasonableness requirement at the top.

[00:06:02] Speaker 02:
They discuss futility at the bottom of page six.

[00:06:06] Speaker 02:
Then on page seven, the author of the memorandum, that's the VAMC employee that said they couldn't find anything else, the author of the memorandum noted that these records were unavailable for review and that all other efforts to obtain them would be futile.

[00:06:21] Speaker 02:
That's a statement in the opinion.

[00:06:23] Speaker 02:
That's not a quote.

[00:06:24] Speaker 02:
That's not a somebody argued.

[00:06:26] Speaker 02:
How is that not a determination by the Veterans Court?

[00:06:31] Speaker 03:
Judge Moore.

[00:06:32] Speaker 02:
You just said they didn't even address it.

[00:06:34] Speaker 02:
I certainly think you're wrong there.

[00:06:36] Speaker 02:
They clearly addressed it.

[00:06:38] Speaker 02:
I don't know what to make of that.

[00:06:41] Speaker 03:
Judge Moore, I apologize if maybe I misunderstood the question, but I think

[00:06:50] Speaker 03:
Again, a finding of futility, Your Honor.

[00:06:54] Speaker 03:
And our position is a finding of futility that is based on a failure to consider the reasonableness standard under subsection A is an error of law.

[00:07:03] Speaker 03:
There was no application of any reasonableness test.

[00:07:05] Speaker 03:
There was no discussion of the reasonableness standard, whether these efforts here met what a person in that position would have done, a reasonable person in that position would have done.

[00:07:17] Speaker 03:
And therefore, Your Honor, a finding of futility based

[00:07:19] Speaker 01:
Well, can I just try to, I guess, break apart what I think are several different pieces of the argument.

[00:07:29] Speaker 01:
One is a point about the insufficiency of the Veterans Court's explanation or reasoning.

[00:07:39] Speaker 01:
Another is a point about the incorrect legal standard that the Veterans Court

[00:07:50] Speaker 01:
You say maybe adopt it in reviewing the board.

[00:07:54] Speaker 01:
And a third is whether under the correct legal standard, findings were improper or incorrect in applying that standard.

[00:08:06] Speaker 01:
And the problem is the last piece of it, we can't review.

[00:08:10] Speaker 01:
The second piece, the legal standard, the Veterans Court appears to have articulated correctly.

[00:08:19] Speaker 01:
Going back in order, the first piece, I'm not sure what authority there is that says the Veterans Court has some sort of explanatory obligation like a APA agency.

[00:08:34] Speaker 03:
To articulate its reasoning and opinion?

[00:08:37] Speaker 03:
Yes.

[00:08:38] Speaker 03:
Your Honor, I agree that the Veterans Court can't be expected to explain every single

[00:08:46] Speaker 01:
uh... issue indicates that and doesn't even hear it quoted the relevant standards it focused on what i think maybe we're actually in an agreement on is that futility or some verbal formulation that amounts to futility is the right legal standard and what seems to be less therefore is the application of that standard to these facts and that's not something we get to look at well you are the the recitation of the facts

[00:09:12] Speaker 03:
the restitution of the law.

[00:09:15] Speaker 03:
But that was in the opinion.

[00:09:17] Speaker 03:
But absent in the opinion was any analysis, any explanation.

[00:09:21] Speaker 01:
But now we're back to kind of APA state farmland or something, right?

[00:09:26] Speaker 01:
Where you might be able to, we often do, courts of appeals do often fault agencies for not having laid out their reasoning because the APA requires that as interpreted

[00:09:40] Speaker 01:
But we don't have an obligation to explain like that here.

[00:09:48] Speaker 03:
Thank you, Judge Shroud.

[00:09:49] Speaker 03:
As we explained in our briefs, there are several reasons why we disagree with the Veterans Court being able to do that.

[00:09:56] Speaker 03:
One is that, as we pointed out, the Veterans Court has its own rules, its own regulations, as to when it can summarily affirm a case.

[00:10:04] Speaker 03:
And those are when the issues are not simple, and those are when the issues are not debatable.

[00:10:10] Speaker 03:
And respectfully, this case doesn't fall in that bucket.

[00:10:15] Speaker 03:
As Judge Moore alluded to earlier, the efforts here were unreasonable.

[00:10:19] Speaker 03:
We don't know standing here today whether or not Mr. Bonner's records are in our hands.

[00:10:23] Speaker 01:
But wouldn't that, if you sort of switch away now, so now there's a different legal rule, you say a board, not a board, a veteran's court internal rule about when it writes opinions.

[00:10:35] Speaker 01:
I don't know that we would get to.

[00:10:36] Speaker 01:
enforce that, but if we did, I think what you just said is the problem was that as applied here, that rule really shouldn't have justified, required more explanation than the Veterans Court did.

[00:10:53] Speaker 01:
But isn't that still in the application of law to fact buckets that we're not allowed to touch?

[00:11:01] Speaker 03:
I respectfully disagree, Judge Taranto.

[00:11:04] Speaker 03:
This court needs some basis.

[00:11:07] Speaker 03:
to be able to review the Veterans Court's legal determinations.

[00:11:10] Speaker 03:
And in this case, the Veterans Court's one-sentence statement that Mr. Bonner failed to persuade the court that he deserved service connection is respectfully insufficient.

[00:11:26] Speaker 03:
It doesn't give this court the ability to review the court's legal determinations.

[00:11:29] Speaker 00:
Bonner, make a brief comment on your second issue notice before your time runs out.

[00:11:35] Speaker 03:
Yes, Your Honor.

[00:11:36] Speaker 03:
Yes, Judge Laurie, in the brief time I have remaining, I'll turn to the natural effects doctrine.

[00:11:42] Speaker 03:
And I will just emphasize that the natural effects doctrine is a case-by-case factual inquiry.

[00:11:49] Speaker 03:
And in this case, where Mr. Bonner's case went up and down the appeals process from the audit to the board multiple times due to VA errors, insufficient medical opinions, conflicting evidence in the medical records.

[00:12:02] Speaker 03:
This is conflicting evidence based

[00:12:05] Speaker 03:
Based on without the benefit of the 20 years of medical records, it was remanded three times from the board, once from the Veterans Court.

[00:12:12] Speaker 03:
There was a memorandum to the ratings board giving everybody constructive notice that the VA had done everything it could to assist Mr. Bonner when in fact that wasn't the case.

[00:12:25] Speaker 03:
And so in this case, Your Honors, respectfully, the natural effects doctrine should apply.

[00:12:30] Speaker 03:
Mr. Bonner should not have borne the burden

[00:12:32] Speaker 03:
to show prejudice.

[00:12:34] Speaker 01:
When did you, you and your client and whoever, see for the first time that 2008 formal finding document?

[00:12:48] Speaker 03:
I believe it was 2014.

[00:12:50] Speaker 03:
Prior counsel raised the issue for the first time in 2014 before the Veterans Court.

[00:12:58] Speaker 00:
The natural effect of Einstein's laws is that time marches forward.

[00:13:03] Speaker 00:
We'll save the rebuttal time.

[00:13:05] Speaker 03:
Thank you.

[00:13:08] Speaker 00:
Mr. Hellman.

[00:13:34] Speaker 00:
Please proceed.

[00:13:36] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:13:38] Speaker 04:
The legal question, to the extent that one is presented here, is whether the VA was statutorily mandated to make a follow-up request when obtaining evidence from a federal agency.

[00:13:52] Speaker 04:
Mr. Bonner argues that it was.

[00:13:54] Speaker 04:
The statute indicates that it was not.

[00:13:56] Speaker 04:
There is this futility exception in both parts of 38

[00:14:02] Speaker 04:
USC 5103A that talks about the efforts to obtain records from either private entity or from a government agency or department.

[00:14:14] Speaker 02:
And both those subsections contain a futility exception that when... Who is the person who decides, because I know it's not me, but who's the person who decides whether or not

[00:14:29] Speaker 02:
reasonable efforts were undertaken to obtain medical records.

[00:14:33] Speaker 02:
Who decides that?

[00:14:34] Speaker 04:
Your Honor, the VA makes that determination as it did in its formal finding of unavailability, and the Veterans Court reviews that determination for clear error.

[00:14:46] Speaker 02:
And if all the VA did was ask one time for the records, and suppose that they didn't even get a little note that said, this is all I can find, suppose they just got some records back.

[00:14:58] Speaker 02:
But the veteran said, no, no, no, I've got records going back to 1975.

[00:15:01] Speaker 02:
I've had this kidney condition all along.

[00:15:03] Speaker 02:
I've been to many VA doctors.

[00:15:07] Speaker 02:
That clearly wouldn't have been reasonable behavior.

[00:15:09] Speaker 02:
That's not what happened in this case, but that would not be reasonable behavior.

[00:15:12] Speaker 02:
Whose duty is it to make that decision and also to make the decision of whether it was futile?

[00:15:18] Speaker 02:
Isn't that supposed to happen at the board level?

[00:15:21] Speaker 02:
The VA makes the decision.

[00:15:23] Speaker 02:
Because they're the ones making the request and getting the info.

[00:15:26] Speaker 02:
So shouldn't they make a decision about whether or not reasonable efforts were undertaken and whether or not it would be futile to undertake further efforts?

[00:15:35] Speaker 04:
Right?

[00:15:36] Speaker 04:
That's correct, Your Honor.

[00:15:36] Speaker 04:
Yes.

[00:15:37] Speaker 04:
And then that would be reviewed by the Veterans Court.

[00:15:39] Speaker 02:
OK.

[00:15:40] Speaker 02:
And in this case, I agree that the Veterans Court seems to address some of these concepts.

[00:15:45] Speaker 02:
But where precisely did the board address them?

[00:15:49] Speaker 02:
Show me where that appears.

[00:15:51] Speaker 02:
Because what I just understood you to say is, yes, the board in the first instance should decide, A, whether reasonable efforts were made, and B, whether it would be futile for there to be additional efforts made.

[00:16:00] Speaker 02:
So where did the board do that?

[00:16:02] Speaker 04:
Your Honor, I'd like to just clarify.

[00:16:05] Speaker 04:
My position is that the VA makes that determination.

[00:16:08] Speaker 04:
Here, the VA had initially a formal finding of unavailability.

[00:16:12] Speaker 02:
Where?

[00:16:13] Speaker 02:
Show me where in the record.

[00:16:14] Speaker 04:
In the record, this is at appendix 1436.

[00:16:18] Speaker 04:
There's a memorandum.

[00:16:20] Speaker 04:
that is titled Formal Finding of Unavailability of Milwaukee VMAC Records from 1975 to 1995.

[00:16:28] Speaker 04:
The VA described the steps it took to obtain these records, including the efforts directed to the medical center itself, the note that came back.

[00:16:40] Speaker 04:
And there's also, on the next page of the appendix 1437,

[00:16:45] Speaker 04:
a summary of the phone call with the veteran where it asked whether he received treatment elsewhere.

[00:16:49] Speaker 04:
He indicated that he did not, that this was the only medical center that he received treatment.

[00:16:54] Speaker 04:
Based on that, the agency made the determination that the records were unavailable.

[00:16:59] Speaker 04:
The board then, this is on a... So wait, so the agency decided they were unavailable.

[00:17:06] Speaker 02:
Where is this mysterious note I hear about?

[00:17:08] Speaker 02:
in the Veterans Court, this is everything I can find.

[00:17:11] Speaker 04:
Your Honor, the note is at appendix 1587.

[00:17:14] Speaker 04:
1587.

[00:17:15] Speaker 04:
The handwritten note is on top of the request form.

[00:17:28] Speaker 04:
This is a form 7131 that the VA uses for obtaining records from its medical center.

[00:17:35] Speaker 04:
So it's a formalized process that

[00:17:38] Speaker 04:
The note, the request went to the VA.

[00:17:41] Speaker 04:
It described the steps that it wanted the medical center to take.

[00:17:45] Speaker 04:
The medical center did, as your honor points out, provide records and this handwritten note on top that says, this is all we've got.

[00:17:54] Speaker 02:
So what happens is, so this was the request and the return from the first and only request that ever took place.

[00:18:01] Speaker 02:
Is that right?

[00:18:02] Speaker 04:
That's correct, your honor.

[00:18:03] Speaker 02:
So this is it.

[00:18:03] Speaker 02:
The only thing that ever happened was,

[00:18:06] Speaker 02:
There was this request sent, and what was sent back was, this is everything I can find.

[00:18:10] Speaker 02:
And they attached some medical records.

[00:18:11] Speaker 04:
They attached over 100 pages of medical records.

[00:18:14] Speaker 02:
OK.

[00:18:14] Speaker 02:
And then what happened next was the VA then made a determination, which is on page 1436, that the records were unavailable for review.

[00:18:24] Speaker 04:
That's correct, Your Honor.

[00:18:26] Speaker 04:
But I would note that the VA, prior to doing that, also called the veteran.

[00:18:29] Speaker 04:
And this is at 1437.

[00:18:31] Speaker 04:
And it asked whether the veteran had been treated at other facilities.

[00:18:35] Speaker 04:
And he said no.

[00:18:36] Speaker 04:
If he had been treated at other facilities, I suspect the VA would have reached out to those facilities as well.

[00:18:41] Speaker 02:
But he did say he was treated at this facility between 1975 and 1995, correct?

[00:18:45] Speaker 02:
He did, yes.

[00:18:48] Speaker 02:
OK.

[00:18:49] Speaker 02:
So how did the VA come to the conclusion that the records were unavailable?

[00:18:53] Speaker 02:
You have one person who said in a handwritten note, this is all I could find.

[00:18:57] Speaker 02:
We have no idea what that person actually did before they decided this was all they could find.

[00:19:05] Speaker 02:
No warehouses or other sites were consulted as far as we know in this record.

[00:19:09] Speaker 02:
So how exactly does the VA make a decision at this point that the records are unavailable based on one guy's handwritten note that this is all I can find, when we have no clue what that person did or didn't do to look for the records?

[00:19:22] Speaker 04:
Your Honor, first I would note that that's a factual determination that this court doesn't have jurisdiction to review.

[00:19:27] Speaker 04:
But to answer your question, the request was fairly specific and described the steps it wanted the medical center employee to take.

[00:19:35] Speaker 04:
I think we can presume based on the presumption of regularity that the government employee performed the steps and there's nothing in the record to indicate otherwise.

[00:19:43] Speaker 02:
Well, but the statute actually has two different things, right?

[00:19:47] Speaker 02:
Make all reasonable efforts when the records are maintained by the government.

[00:19:52] Speaker 02:
And the same statute says, and you have to request stuff at least twice if they're not maintained by the government, right?

[00:19:58] Speaker 04:
That's not exactly correct, Your Honor.

[00:19:59] Speaker 04:
It says you have to make a follow-up request unless you know

[00:20:03] Speaker 04:
unless the first request indicates that further follow-up would be futile.

[00:20:06] Speaker 04:
So even in the case of private medical records, you don't have to make two requests.

[00:20:10] Speaker 02:
OK.

[00:20:12] Speaker 02:
So unless they indicate follow-up, is there some finding somewhere of futility that was made in this case?

[00:20:17] Speaker 02:
Where is that finding?

[00:20:18] Speaker 04:
Well, this is at 1436.

[00:20:19] Speaker 04:
On there.

[00:20:21] Speaker 02:
Where does it say it?

[00:20:22] Speaker 04:
It says formal finding of unavailability, and it says all efforts exhausted.

[00:20:30] Speaker 04:
Paragraph 3C, Your Honor, says, and then paragraph 2 says, all efforts to obtain the needed information have been exhausted and further attempts are futile.

[00:20:41] Speaker 02:
OK.

[00:20:41] Speaker 02:
So do you feel good about that?

[00:20:43] Speaker 02:
Because I don't feel good about that.

[00:20:47] Speaker 02:
All they got back was a handwritten note by a mysterious person that says, this is all I could find.

[00:20:52] Speaker 02:
Do you know how often I send my children up to their room to find something and they come back without it?

[00:20:58] Speaker 02:
And forget my children, my husband.

[00:21:00] Speaker 02:
Oh my gosh, this is a chronic problem.

[00:21:02] Speaker 02:
My coat's not in the closet.

[00:21:04] Speaker 02:
Here's your coat.

[00:21:05] Speaker 02:
Right back to him.

[00:21:06] Speaker 00:
There's certainly a presumption of regularity with respect to her husband.

[00:21:14] Speaker 02:
You would appreciate your defense of him.

[00:21:18] Speaker 04:
Your Honor, I think the answer is that this is not

[00:21:23] Speaker 04:
on review here, if the Veterans Corps disagreed.

[00:21:25] Speaker 02:
That's not the answer I want from you.

[00:21:26] Speaker 02:
What I want to know from you is how happy are you, because I'm not at all happy, with the idea that they rubber stamped a determination it was futile based on no follow-up, no actual verbal communications with the individual who said this is all I can find, and just a handwritten note.

[00:21:44] Speaker 02:
When we're talking about records going back so many decades, they could easily be stored off site or whatever.

[00:21:50] Speaker 02:
And the request didn't ask him to look at that.

[00:21:52] Speaker 04:
It did, Your Honor.

[00:21:53] Speaker 04:
It said, if clinical file had been transferred, please provide the location of the clinical file.

[00:21:58] Speaker 04:
Please retrieve from the archives.

[00:22:00] Speaker 02:
But he said, this is all I can find.

[00:22:03] Speaker 04:
He said, this is everything I could find.

[00:22:04] Speaker 04:
And he provided records.

[00:22:05] Speaker 04:
Under the presumption of regularity, we presume he was doing his job, he would have

[00:22:11] Speaker 04:
provided information as to where they were transferred.

[00:22:13] Speaker 02:
You know what?

[00:22:14] Speaker 02:
My law clerks would love this rule.

[00:22:15] Speaker 02:
I asked them to go research something.

[00:22:17] Speaker 02:
They come back with one item.

[00:22:18] Speaker 02:
And from now on, I'm just going to assume it would be futile to think there's anything else out there.

[00:22:23] Speaker 02:
Wouldn't you all like that sort of ruling, right?

[00:22:25] Speaker 02:
I mean, the one thing they give me means it must be futile to believe there's anything else out there.

[00:22:33] Speaker 04:
Your Honor, the rule, I think, is intended to ensure that the

[00:22:38] Speaker 04:
VA gets a response back from the agency.

[00:22:41] Speaker 04:
And you can see this in the legislative history with respect to the private record request.

[00:22:47] Speaker 02:
The follow-up is- I clearly read the statute as hoping that our government will do a better job of ascertaining the medical records of our veterans.

[00:23:03] Speaker 02:
I actually think when they say make all reasonable efforts,

[00:23:08] Speaker 02:
I think that they were asking you to do more than what they do with the private people.

[00:23:12] Speaker 02:
Why?

[00:23:12] Speaker 02:
Because our government should do more for these people, especially when the only care they received was from the government itself.

[00:23:19] Speaker 02:
Probably because this guy couldn't afford to go to a private doctor and he had VA medical insurance.

[00:23:26] Speaker 02:
So the way I read the statute is they wanted more out of the government because you know what?

[00:23:31] Speaker 02:
We owe it to them because they're veterans.

[00:23:34] Speaker 02:
And so you didn't even make two requests.

[00:23:36] Speaker 02:
And then you jump to a conclusion that it was futile because somebody put a handwritten note on it.

[00:23:40] Speaker 02:
I mean, I feel like my nine-year-old could have done this.

[00:23:46] Speaker 04:
General.

[00:23:47] Speaker 02:
I have no more confidence in it than I would her search of the house to look for something.

[00:23:51] Speaker 04:
There's no magic number, though, in the statute.

[00:23:54] Speaker 02:
There is a magic number in the statute for the private sector.

[00:23:56] Speaker 04:
to at least two.

[00:23:58] Speaker 04:
It's not at least two, it's at least two unless it would be futile.

[00:24:00] Speaker 04:
And here the agency did make that determination.

[00:24:02] Speaker 04:
The second response that would have come back would have been... Based on one look.

[00:24:07] Speaker 01:
Based on one look, they decided it would be futile.

[00:24:08] Speaker 01:
Wow.

[00:24:11] Speaker 01:
Can I just ask, there's a...

[00:24:14] Speaker 01:
may or may not be relevant to this question, but we're talking about records from 75 to 95 and service that was 25 years or 22 years before the 1975.

[00:24:28] Speaker 01:
Does any of the medical specific analysis of the condition and its origins and what not bear on a question like would

[00:24:44] Speaker 01:
evidence of the condition in 1975 alter a conclusion about its origin in 1951-53?

[00:24:54] Speaker 01:
Yes.

[00:24:54] Speaker 04:
Two points to do, Your Honor.

[00:24:58] Speaker 04:
First, the... Your answer to him has got to be yes.

[00:25:06] Speaker 04:
Yes.

[00:25:07] Speaker 02:
Yes, Your Honor.

[00:25:07] Speaker 02:
It would have mattered, because the Board decision itself expressly says that at page 12 of the decision, which is A.

[00:25:13] Speaker 02:
23 of the board's decision where they explain how, because this was diagnosed a full 50 years later for the first time, and they actually say, because there are no service records from earlier, no medical records from earlier, how that made a difference and disconnected the disease in a long period of time from service.

[00:25:31] Speaker 02:
So I would think your answer to Judge Toronto would have to be, yes, it could have mattered here.

[00:25:35] Speaker 04:
No, my answer to Judge Toronto is that his condition that he was seeking service connection for was a secondary.

[00:25:44] Speaker 04:
He was seeking a claim for a kidney condition.

[00:25:48] Speaker 04:
He was diagnosed in service with prostatitis, which is a prostate condition.

[00:25:51] Speaker 04:
The two are unrelated.

[00:25:53] Speaker 04:
And there is medical examiner findings on that that nobody disputes at 961 that says, chronic prostatitis does not cause or aggravate chronic kidney disease.

[00:26:03] Speaker 04:
It is most often a localized infection of the prostate.

[00:26:06] Speaker 04:
So his records going back to his prostate condition would have no bearing on his current kidney

[00:26:13] Speaker 02:
Well, except that, wait, the board says, while the veteran is competent to testify the symptoms experienced during military service, he's not competent to link this current disability diagnosed 50 years after separation from active duty to the prostatitis.

[00:26:31] Speaker 02:
So wait, if there were service records in 75 that showed this kidney problem, not just prostatitis,

[00:26:40] Speaker 02:
then it wouldn't be this 50-year leap between the prostatitis and the kidney problem, right?

[00:26:44] Speaker 02:
It would be a 20-year leap.

[00:26:45] Speaker 04:
It would be a 20-year leap, but he was not in service during that time.

[00:26:51] Speaker 02:
Yes, but the point I'm making is that the board stressed how long there was between his service and the development of this disease, and that was clearly a factor that mattered to them in their decision-making.

[00:27:04] Speaker 02:
If those medical records exist and demonstrated that he actually had this disease

[00:27:08] Speaker 02:
30 years earlier, and it wasn't quite as long.

[00:27:12] Speaker 02:
20 years is still long, but I don't know.

[00:27:14] Speaker 02:
I'm not a doctor.

[00:27:15] Speaker 02:
Maybe it would make a difference.

[00:27:16] Speaker 04:
Sure.

[00:27:16] Speaker 04:
But the other point on that, Your Honor, is that there are medical records from 1997 and 2003 showing that his levels with respect to this disease were normal.

[00:27:27] Speaker 04:
His tests, I think, only showed this disease in 2003.

[00:27:32] Speaker 04:
So prior to that, the records that we do have available showed that he did not have an indication

[00:27:38] Speaker 02:
Now, you showed me in the record where the VA made a decision of futility.

[00:27:42] Speaker 02:
Absolutely, I see where they made that decision.

[00:27:45] Speaker 02:
Whether I like it or not, they made that decision.

[00:27:49] Speaker 02:
But the board didn't.

[00:27:51] Speaker 02:
Nothing in the board's decision shows futility.

[00:27:55] Speaker 02:
The word futility doesn't appear in the board's decision.

[00:27:57] Speaker 02:
It does not appear.

[00:27:58] Speaker 02:
I mean, I have word search.

[00:27:59] Speaker 02:
So I think you can trust me on this one.

[00:28:02] Speaker 02:
So there's no fact finding by the board about futility.

[00:28:04] Speaker 02:
Then we have the Veterans Court, what I feel like pretty heavily relying on this notion of futility.

[00:28:09] Speaker 02:
Does the Veterans Court get to do that when the board itself didn't make its decision on that basis?

[00:28:16] Speaker 04:
Well, the board said that no further assistance is required.

[00:28:19] Speaker 04:
And there is the memorandum.

[00:28:22] Speaker 04:
The Veterans Court is permitted to rely on that.

[00:28:26] Speaker 02:
If you read the board's decision as making a futility determination, please show me where in the decision you think they made that.

[00:28:33] Speaker 04:
In two places, Your Honor, and I agree that it doesn't use the word futility, but on page four of the board decision, Appendix 15, it says, VA obtained the veteran service treatment and personnel records.

[00:28:46] Speaker 04:
And then on the following page, and it's sort of summing up this section on the duty to assist, it says, no further notice or assistance to the veteran is required to fulfill its duty.

[00:28:56] Speaker 02:
No further notice or assistance is required?

[00:29:00] Speaker 02:
How does that say it would have been futile

[00:29:02] Speaker 02:
That says I don't have to do anything more, not that it would have been futile to not do anything more.

[00:29:07] Speaker 04:
In conjunction with the formal finding of unavailability, the... Where do they say that?

[00:29:16] Speaker 02:
Where do they talk about the formal finding of unavailability in the board decision and rely on it?

[00:29:20] Speaker 04:
The board decision does not expressly mention it.

[00:29:23] Speaker 04:
The Veterans Court relies on it.

[00:29:25] Speaker 02:
So tell me, I know I can't touch fact findings, I get that.

[00:29:28] Speaker 02:
But tell me, the board did not, in my view, anywhere in it make a finding either of unavailability or of futility.

[00:29:35] Speaker 02:
They just say reasonable efforts were made.

[00:29:37] Speaker 02:
That's all they say.

[00:29:38] Speaker 02:
So if that's my view of the board opinion, is it appropriate from a legal standpoint for the Veterans Court to make fact findings in the first instance of futility, even if the record otherwise supports them based on the 14

[00:29:52] Speaker 02:
the memorandum at page 1436.

[00:29:54] Speaker 02:
Is it appropriate for the Veterans Court to make such a determination in the first instance when the board never did?

[00:30:02] Speaker 02:
It does the Veterans Court have a right to make that sort of fact finding in the absence of the board having made it?

[00:30:10] Speaker 04:
The Veterans Court reviews the board decision for clear error.

[00:30:14] Speaker 04:
If there's evidence that was before the agency that the agency

[00:30:20] Speaker 04:
made this factual finding, I don't know to what extent it would have to explicitly call it out in its opinion.

[00:30:26] Speaker 04:
The court is entitled to rely on the facts that were before the agency, such as the formal finding of unavailability.

[00:30:33] Speaker 04:
And I note that I'm over my time, Your Honor.

[00:30:35] Speaker 00:
Thank you, Mr. Hellman.

[00:30:36] Speaker 00:
Mr. Schenck has been more than two minutes.

[00:30:40] Speaker 02:
I bet you're very happy to see that red light today.

[00:30:45] Speaker 03:
Unless the court has any further questions for me, I will concede the remainder of my time.

[00:30:52] Speaker 00:
No one ever loses a case for not using all their time.

[00:30:56] Speaker 00:
Nancy, we'll take the case under advisement.