[00:00:04] Speaker 01:
We have six cases on the calendar this morning, a veteran's case, three patent cases, two of which are from district courts and one from the PTO, a case from the Court of Federal Claims, and an employee case from the board.

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The latter two are being submitted only on the briefs and will not be argued.

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Our first case is Ignacio

[00:00:33] Speaker 01:
Castillo versus Secretary of Veterans Affairs 2016-1539, Mr. Carpenter.

[00:00:38] Speaker 01:
Thank you very much, Your Honor.

[00:00:41] Speaker 02:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Ignacio Castillo.

[00:00:47] Speaker 02:
The Veterans Court in this case relied upon a misinterpretation of 38 CFR 4.130 when it determined that the Board had correctly applied those provisions.

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The Veterans Court determined that the board had correctly applied Section 4.130.

[00:01:02] Speaker 01:
You keep using the term apply, applying the law to the facts.

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Does that destroy jurisdiction here?

[00:01:12] Speaker 02:
That was the argument below, Your Honor.

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And the Veterans Court made a determination that they had correctly applied.

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And in so doing, they used

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a legal standard that is contrary to the legal standard that is outlined in this court's case of Vasquez Claudio versus Shinzaki, which has interpreted the provisions of 4.130.

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The Veterans Court's interpretation was that it was adequate for the board to have provided a clear picture of Mr. Castillo's disability picture.

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and considered the symptoms outlined in Diagnostic Code 9411, which is a diagnostic code for post-traumatic stress disorder.

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In order to correctly apply those provisions, more is required from the board consistent with this court's decision in Vasquez-Claudio.

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Specifically, this court- Would you complain that the court didn't cite Vasquez?

[00:02:12] Speaker 01:
It did what Vasquez required.

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I don't believe that it did, Your Honor.

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Vasquez Claudio sets out very specific methodology for the assessment of a veteran's symptoms that are identified in the record.

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And that assessment requires a determination as to what impact those symptoms have on the level of industrial and social impairment.

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and that in addition to identifying that, the requirement is that the agency must assess those in terms of the severity, frequency, and duration.

[00:02:57] Speaker 04:
But the agency did.

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The board cited Vasquez-Claudio and thoroughly analyzed all of the factors.

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Your fault is

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It seems to me I have the same concern Judge Laurie does with the Veterans Court failure to cite the case, but the board did and the board applied it.

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So what's the harm here?

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I believe they did not apply it correctly or as was required by this court's case in Vasquez-Claudio.

[00:03:24] Speaker 04:
The board cited it.

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The board cited Vasquez-Claudio.

[00:03:27] Speaker 02:
They cited it, but they didn't apply it correctly.

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But we don't get to decide that, do we?

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I mean, we could agree with you that they completely misapplied Vasquez-Claudio.

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But as long as they're citing the correct law and applying it to the facts, if they get it wrong, they get it wrong.

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And that question's not for us.

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It's for the Veterans Court.

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That's correct, Your Honor.

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And you're reviewing not what the board did, but what the Veterans Court did.

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And what the Veterans Court did was to use a legal standard

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that simply allows for, if you will, a gloss on addressing the very specific criteria set out in Vasquez-Claudio for the assessment of a veteran's symptoms.

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And that is either the correct... But they're reviewing the board's decision and the board applied the correct law.

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And there's no indication in the Veterans Court opinion that it's finding that Vasquez-Claudio doesn't apply in creating new and different law.

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They simply don't cite that case.

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They cite their own case, which basically to me seems to be the same kind of criteria.

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And I still don't see how we're anywhere except for an application of law to fact.

[00:04:37] Speaker 02:
Well, Your Honor, the board in its decision indicated that all, excuse me, that throughout the initial rating period,

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The veterans PTSD had been characterized by an occupational and social impairment with occasional decrease in work efficiencies and indeterminate periods of instability.

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That is simply a repetition of the rating criteria.

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It is not doing what this court said the board and the VA were required to do when they applied 4.130, which is to make a particularized assessment that is symptom driven and is tied to

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the severity, frequency, and duration of symptoms.

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And that that is the analysis that is required in order to properly apply 4.130 and to simply cut and paste into their decision.

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I get what you're saying and even if I agree with you I don't see how we can do anything.

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These arguments seem to have been appropriate for the Veterans Court.

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They agreed with you.

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They may not have cited our decision, but they cited a similar decision.

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And even if they got that wrong, the application of law to fact is left to them.

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It's not for us.

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Everything you say about what the board did wrong is they didn't apply the criteria right.

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They merely parroted the diagnostic language.

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But you haven't said to me one point where the board specifically said, our standard is X, and that standard is different from Vasquez-Claudio.

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Because this court is not reviewing what the board did.

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This court is reviewing what the Veterans Court did.

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In the Veterans Court decision, did it say, we're not going to follow Vasquez-Claudio?

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We have a different standard.

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It articulated the only standard that is in their opinion.

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And that standard is that it is adequate to correctly apply the appendix at page three, Your Honor.

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for the board to provide a clear picture of the veterans disability picture and to consider the symptoms as outlined in 9411.

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But they also cited their Mowerhand case, didn't they?

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They did.

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And the Mowerhand case has language that mirrors our Vasquez-Claudio decision, does it not?

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Well, it does, Your Honor, but quite frankly, this court's decision takes Mowerhand

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to a much more precise level in terms of identifying how that regulation is to be correctly applied.

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In Vasquez-Claudio, this court affirmed what was done below, but went to great lengths to... So you think the Maurerhand standard is an incorrect legal standard?

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No, I think the Maurerhand standard is not as precise

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as the standard.

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precise enough to meet our standard?

[00:07:32] Speaker 02:
No, your honor.

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Whether or not when they concluded... So let me ask you again.

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You say Mauer... So is Mauerhand good law?

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Mauerhand is good law.

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On the standard.

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That's correct.

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It is an appropriate articulation of the standard.

[00:07:42] Speaker 03:
Yes it is.

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And so they cited Mauerhand and said the board got it right under that standard.

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Under Mauerhand.

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That's correct.

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And then the... But Mauerhand does not make the type of interpretation of

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4.130 that this court made in Vasquez-Claudio.

[00:07:59] Speaker 03:
I don't understand what you're saying.

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Either Mauerhand conflicts with Vasquez-Claudio, and we should tell them to start disregarding it, or it's consistent with Vasquez-Claudio and sets out the right standard.

[00:08:11] Speaker 03:
And it seems like you said it sets out the right standard.

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I did say that.

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So their opinion contains the correct standard, the correct articulation of the regulation,

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but just doesn't cite Vasquez-Claudio.

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The issue that was presented by Mr. Castillo to the Veterans Court was the proposition of whether or not the regulation was properly applied by the board.

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The Veterans Court said that... The proper articulation of that regulation is both in Mauerhand and Vasquez-Claudio.

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It is in part in Mauerhand, but it is more precisely articulated in this court's decision.

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And to me, what the court is saying is that the Veterans Court does not have to address this court's jurisprudence in interpreting a regulation and can be permitted by the limitations of this court's jurisdiction, as I understand what you're saying to me, because they cited their own decision that deals with it in part, but ignores this court's decision in full.

[00:09:19] Speaker 03:
I see what you're saying.

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I don't see anything wrong with the Veterans Court citing their own cases as long as they're a correct articulation of law.

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For you to win on this point, you have to convince me that Mowerhand is an incorrect interpretation of the law.

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And I don't see how it is.

[00:09:38] Speaker 02:
Well, Your Honor, I do not believe that that's what I have to do to prevail.

[00:09:42] Speaker 03:
i'd if you've got to give you if that's what i have to do to prevail we only get a review legal questions so if they have cited the correct regulation which they have and they cited the correct case law interpreting that regulation which their case law is certainly sufficient then they have cited the correct legal rule we don't get to decide whether they correctly applied that you have to show either some legal difference i'm sorry i'm in my no legal difference between

[00:10:12] Speaker 03:
the standards that would convince us at Maurerhand is the incorrect legal role.

[00:10:17] Speaker 02:
Except, Your Honor, that position seems to me to undermine the whole concept of judicial review.

[00:10:23] Speaker 02:
Under judicial review, the veteran, for the first time, is able to challenge what the agency does in a court of law.

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And Mr. Castillo presented an argument that was based on this court's interpretation of 4.130.

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And the Veterans Court, instead of addressing that issue, relied upon its own case law and then made a conclusory statement that is inconsistent.

[00:10:52] Speaker 03:
Let's just assume hypothetically that Mauerhand and our decision are the same thing.

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Is it air for the Veterans Court, is it legal air for the Veterans Court to not address the argument based upon our precedent

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but just address the issue, because they certainly address the issue and cite their own case law.

[00:11:12] Speaker 02:
I believe it is if, as I believe they did in this case, articulate a standard that is inconsistent with the standard that is set out by this court in Vasquez-Claudio.

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And the standard that they articulated was there need only be a clear disability picture and consideration of the symptoms under the diagnostic code.

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I believe that Vasquez-Claudio says more than that.

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And Maurerhand says more than that, too, which is what they cited.

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I mean, I have it in front of me.

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Maurerhand has all the same factors in it that you're complaining that they didn't consider from Vasquez-Claudio.

[00:11:49] Speaker 03:
The fact that they didn't specifically mention every single one of them sounds to me like you're up here on an opinion-writing error argument, not a legal error.

[00:11:59] Speaker 02:
Well, I'm not sure it is an opinion-writing error, Your Honor.

[00:12:02] Speaker 02:
If the veteran presents a specific argument

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And the court evades addressing that argument and decides it on grounds other than the grounds that both the board relied upon, as Judge Moore said, by citing to Vasquez-Claudio.

[00:12:18] Speaker 02:
They said that their decision was based on Vasquez-Claudio.

[00:12:22] Speaker 01:
So I don't realize that, Judge.

[00:12:23] Speaker 01:
You can continue if you like, or save it.

[00:12:26] Speaker 02:
No, no, I'd like to reserve.

[00:12:27] Speaker 02:
Thank you, Eric, Judge.

[00:12:29] Speaker 01:
Ms.

[00:12:29] Speaker 01:
Finner.

[00:12:41] Speaker 00:
May it please the court?

[00:12:42] Speaker 00:
We ask that this court affirm the decision of the Court of Veterans Appeals, Court of Veterans Claims, who employed the correct standard when it agreed with the Board of Veterans Affairs that Mr. Castillo's post-traumatic stress disorder, PTSD, was 30% disabling.

[00:12:59] Speaker 00:
It was not error for the Veterans Court to rely on Mauerhand in lieu of Vasquez-Claudio.

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The two cases are consistent.

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Appellant has not identified any distinction between them, any fault in Mauerham that is inconsistent with Vasquez-Claudio.

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This court has also expressed its agreement with Mauerham in its seller's opinion, where it held, because we agree with the Veterans Court decision in Mauerham, and because Mauerham controls these cases, disability cases we affirm.

[00:13:34] Speaker 00:
Mr. Castillo's own opening brief also cites both Vasquez-Claudio and Mauerham as the standard.

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And that's his brief at pages 5, 7, and 8.

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The two decisions are consistent.

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They both refer to an obligation by the board in the first instance and the court in the second.

[00:13:51] Speaker 03:
Did the Veterans Court go through all the factors that are in Mauerhand and Vasquez-Claudio here in its opinion?

[00:13:58] Speaker 00:
Yes.

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The process would be, on the other hand, and Vasquez-Claudio for the review officer in the first instance to identify all of the symptoms.

[00:14:08] Speaker 00:
No, no, no.

[00:14:09] Speaker 03:
I get it.

[00:14:09] Speaker 03:
I mean, I think the board clearly looked at Vasquez-Claudio and applied those factors.

[00:14:13] Speaker 03:
But I think your friend says that the Veterans Court gave a much different, more general look.

[00:14:19] Speaker 03:
I was just curious if you thought the court actually had recited all those factors and considered them.

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or indeed did apply a kind of broader, less specific standard?

[00:14:33] Speaker 00:
No, we believe that the Veterans Court did apply with the requisite level of specificity what was required for the standard.

[00:14:41] Speaker 00:
Now, it was certainly less detailed than the board's decision, but there's nothing inherently wrong with that so long as the Veterans Court met its threshold

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in terms of its analysis.

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And it was cognizant in citing Mauerhand of its obligation to consider all the symptoms in the record, to then look at those symptoms in relation to the ratings criteria in terms of their frequency, severity, and duration, to consider the social and occupational impairment.

[00:15:10] Speaker 00:
All of that analysis is in the Veterans Court's decision.

[00:15:13] Speaker 00:
It's not under a heading that explicitly sets to Vasquez-Claudio, but the analysis itself is there.

[00:15:21] Speaker 00:
this court were to find it was error to have failed to cite Vasquez-Claudio.

[00:15:25] Speaker 00:
It is a harmless error.

[00:15:27] Speaker 00:
As Vasquez-Claudio itself explains, the statement of law may be harmless error if the board correctly applied 38 CFR 4.130, which is exactly what we have in this case.

[00:15:39] Speaker 04:
And you just suggested that the Veterans Court articulated and decided, as it should, frequency, severity, and duration in reviewing the board's decision.

[00:15:51] Speaker 04:
Where did they do that, precisely?

[00:15:52] Speaker 04:
I see the word severity mentioned on page 3.

[00:15:55] Speaker 04:
Where is frequency and duration mentioned in the Veterans Court's opinion?

[00:16:00] Speaker 00:
It would be in the Veterans Court through its discussion of the board.

[00:16:04] Speaker 00:
Where?

[00:16:05] Speaker 04:
I'm asking you to show me where.

[00:16:16] Speaker 04:
You said that the relevant criteria out of Vasquez and Mauerhand are frequency, severity, and duration.

[00:16:22] Speaker 04:
So where does the Veterans Court review the board's decision?

[00:16:27] Speaker 04:
I agree the board absolutely discusses those things.

[00:16:31] Speaker 04:
But where does the Veterans Court?

[00:16:35] Speaker 00:
So the Veterans Court demonstrated its awareness with the standard in terms of running through

[00:16:43] Speaker 00:
what it saw the board do.

[00:16:45] Speaker 00:
Where?

[00:16:46] Speaker 00:
That would be starting at page 114.

[00:16:50] Speaker 04:
I'm sorry.

[00:16:51] Speaker 04:
I'm on page two or three.

[00:16:53] Speaker 04:
I'm on the... I'm in the cross opinion.

[00:16:56] Speaker 04:
What are you looking at?

[00:16:57] Speaker 00:
I'm in the cross opinion.

[00:17:04] Speaker 00:
Okay.

[00:17:04] Speaker 00:
So starting at appendix three, the

[00:17:11] Speaker 04:
Veterans Court talked through what the board did.

[00:17:14] Speaker 04:
But where does it, you said frequency, severity, and duration are the three critical concerns that evolve from Mauerhand and or more precisely Vasquez-Claudio.

[00:17:25] Speaker 04:
So I see they mentioned the word severity at sort of the top of page three, but I never see a mention of duration or frequency or even an analysis of the evidence before the board that would suggest that they were looking at the evidence regarding frequency and duration.

[00:17:42] Speaker 04:
So tell me where

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What sentence in this opinion I should interpret as demonstrating their knowledge of that standard and application of it?

[00:17:53] Speaker 00:
Yes, Your Honor, you're right.

[00:17:55] Speaker 00:
The exact phrase frequency, severity, and duration does not appear as a phrase in the Veterans Court decision.

[00:18:03] Speaker 00:
However, as Your Honor also noted, there is a reference to consideration of the severity of the appellant's condition.

[00:18:09] Speaker 00:
And that's on the top of the first full paragraph in Appendix 3.

[00:18:13] Speaker 00:
And then into that second full paragraph, there is a recitation of the symptoms identified by the board.

[00:18:20] Speaker 00:
And I'm looking fourth line down specifically.

[00:18:22] Speaker 00:
The board noted that Mr. Castillo's symptoms noted to be directly related to PTSD or depressed mood, anxiety, panic attacks that occur weekly or less often.

[00:18:31] Speaker 00:
So something like weekly or less often may not be under the heading, frequency, severity, or duration, but it is certainly an application.

[00:18:38] Speaker 04:
But clearly, they're taking into account and reviewing or looking at the evidence that indicated the frequency and duration of these issues, even though they may not have articulated it.

[00:18:50] Speaker 04:
They're looking and articulating all the correct evidence that demonstrates that they did, in fact, apply the right standard, even though they may not have parroted the right words.

[00:19:00] Speaker 04:
Yes, Your Honor.

[00:19:01] Speaker 04:
that's all I needed.

[00:19:06] Speaker 00:
Any other questions from the panel?

[00:19:09] Speaker 01:
If not, we will move on.

[00:19:10] Speaker 01:
Thank you, Ms.

[00:19:11] Speaker 01:
Penning.

[00:19:11] Speaker 01:
Mr. Coppola has a little rebuttal time.

[00:19:21] Speaker 02:
I surrender that rebuttal time unless there's any further questions from the panel.

[00:19:26] Speaker 01:
No one ever loses because of giving up time.

[00:19:30] Speaker 02:
I've heard that before.

[00:19:31] Speaker 01:
Thank you, Mr. Coffman.

[00:19:32] Speaker 01:
We'll take the case under advisement.