[00:00:05] Speaker 01:
Next case is Jack Leon Klopp versus the Department of Veterans Affairs.

[00:00:33] Speaker 01:
2016-24-20.

[00:00:34] Speaker 01:
Ms.

[00:00:34] Speaker 01:
Ductree, when you're ready.

[00:00:38] Speaker 01:
Good morning.

[00:00:48] Speaker 00:
Good morning, and may it please the court.

[00:00:50] Speaker 00:
Rebecca Harker Ductree on behalf of veteran appellant Jack Liam Clark.

[00:00:54] Speaker 00:
Today we ask this court to vacate and remand the veteran court's decision because the Veterans Court committed legal error by exceeding its statutory authority for two reasons.

[00:01:04] Speaker 00:
First, the Veterans Court exceeded its statutory authority by making findings of fact in the first instance that were not part of the record below and that were not considered by the Board in the first instance.

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Second, the Veterans Court exceeded its statutory authority by sustaining the Board's determination of no service connection on grounds not considered by the Board below and relying on evidence that was not considered by the Board below.

[00:01:28] Speaker 00:
One of the main issues this court needs to consider in this case is whether the Veterans Court properly made factual findings in the first instance.

[00:01:36] Speaker 03:
I guess I'm trying to figure out what is the Veterans Court supposed to do when the veteran appeals to the Veterans Court and says, Veterans Court, please look at this record.

[00:01:49] Speaker 03:
And when you look at this record, you will see that the board below overlooked an alternative claim that it needed to address.

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Is it your position that the Veterans Court needs to remand that to the board to decide for itself in the first instance?

[00:02:08] Speaker 03:
Because inherently what clearly happened is the board didn't see that alternative claim in the record and so now the responsibility lies on the Veterans Court to try to decide whether the board was wrong in

[00:02:24] Speaker 03:
because in fact there is that alternative claim that's sitting there embedded in the record.

[00:02:30] Speaker 03:
So they have to engage in the review of the record, right?

[00:02:34] Speaker 00:
Correct, Your Honor.

[00:02:35] Speaker 00:
The Veterans Court has the authority to review the record to determine whether an issue was properly raised before the board below.

[00:02:43] Speaker 00:
However, in doing that, they are limited to what is in the record below, and they cannot make additional factual findings.

[00:02:51] Speaker 00:
So in this case, the real issue is that

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the Veterans Court made additional factual findings and considered evidence that the board didn't consider in its decision below.

[00:03:00] Speaker 00:
The issue that arises here is if the Veterans Court is making factual findings in the first instance or considering evidence that the board did not consider below, now the veteran has no recourse to appeal those factual findings because the veteran can't appeal those factual findings to this court because this court doesn't have jurisdiction to review the factual findings.

[00:03:20] Speaker 00:
So now we're stuck with these factual findings that the Veterans Court made

[00:03:23] Speaker 00:
and we have no basis to have anyone review them.

[00:03:26] Speaker 03:
So what would you have us do with the Robinson case where in the Robinson case there was a situation where the veteran was appealing to the Veterans Court saying that the board below overlooked an alternative claim, direct service connection or something like that.

[00:03:43] Speaker 03:
So please take a look.

[00:03:45] Speaker 03:
The Veterans Court reviewed the record and concluded no, there was no direct service connection claim below and then we held

[00:03:54] Speaker 03:
We don't have jurisdiction to review this question because the Veterans Court made a fact finding that there was no claim and we can't review that fact finding.

[00:04:04] Speaker 03:
So on one hand, we know we can't review fact findings.

[00:04:08] Speaker 03:
That's outside our jurisdiction, you agree.

[00:04:10] Speaker 03:
And then on the other hand, we know that at least with respect to the Robinson case, it was we

[00:04:20] Speaker 03:
you know, we signed off on the Veterans Court to make that inquiry on whether a claim was actually raised in the record or not.

[00:04:27] Speaker 03:
So doesn't that both ways kind of answer the question in your case?

[00:04:33] Speaker 00:
No, Your Honor.

[00:04:33] Speaker 00:
The difference between the Robinson case and our case is that in the Robinson case, the Veterans Court did not make any additional factual findings when it was reviewing the record below to determine whether or not the issue of direct service connection was reasonably raised before the board below.

[00:04:50] Speaker 00:
Instead, the Veterans Court solely relied on the facts as they existed in the record below.

[00:04:55] Speaker 00:
Unlike the Robinson case, in this case, the Veterans Court made several additional factual findings in order to determine that section 3.303b did not apply in this instance.

[00:05:07] Speaker 02:
What were those?

[00:05:08] Speaker 02:
What were the additional, I think you said, both additional factual findings and maybe evidence that the board did not discuss?

[00:05:16] Speaker 02:
What are those things?

[00:05:18] Speaker 00:
Correct.

[00:05:19] Speaker 00:
The crux of these findings occur in the Joint Appendix at 335.

[00:05:23] Speaker 00:
And this is the service treatment record in which there was a diagnosis of arthritis in service.

[00:05:30] Speaker 00:
The Veterans Court made a determination as to what the question mark.

[00:05:33] Speaker 02:
I'm sorry.

[00:05:34] Speaker 02:
Yeah, this is the little handwritten thing?

[00:05:35] Speaker 00:
Correct.

[00:05:36] Speaker 02:
Right.

[00:05:37] Speaker 02:
And I guess maybe is it enough for you to say there's a disputed question whether there was a diagnosis or whether that was just a question?

[00:05:49] Speaker 00:
There was a dispute as to whether or not there was a diagnosis in service.

[00:05:52] Speaker 00:
I don't think that the Veterans Court could look at this record and say with certainty that it was clear in the record what the question mark in that diagnosis meant.

[00:06:01] Speaker 00:
And what the Veterans Court did here was make a factual finding as to what the question mark meant.

[00:06:06] Speaker 00:
And they said the question mark went to the issue of whether or not there was arthritis in service.

[00:06:12] Speaker 02:
Are you saying that the board did not address that bit of evidence?

[00:06:18] Speaker 00:
The board did not interpret that evidence in their decision.

[00:06:23] Speaker 02:
It must have had it in front of it.

[00:06:24] Speaker 00:
Correct, it did.

[00:06:26] Speaker 03:
I'm not sure that's right, only because when you look at A63 in the board decision, you'll see a passage where it discusses and reviews those various examination reports, or it calls them out, and then explicitly says,

[00:06:43] Speaker 03:
the record shows no chronic right ankle or left great toe disability during service."

[00:06:53] Speaker 03:
So I think a fair reading of that passage in the board decision suggests that they looked at, considered these examination reports, including the one we're talking about, and then made this specific fact finding about no chronic right ankle or left big toe arthritic problem.

[00:07:14] Speaker 03:
So maybe the Board did make that fact-finding.

[00:07:19] Speaker 00:
We would disagree, Your Honor.

[00:07:19] Speaker 00:
We don't think it's clear in the Board's decision that they actually looked at that piece of evidence and they didn't interpret the meaning of the question mark.

[00:07:26] Speaker 00:
We believe that the evidence isn't clear from the face of the record what the question mark means.

[00:07:32] Speaker 00:
And the Veterans Court felt the need to address it in their decision and make an interpretation as to what that question mark meant in order to reach a decision under Section 3.303b.

[00:07:43] Speaker 00:
While the board is presumed to have reviewed all of the evidence in the record, and we understand that, and the board is also presumed to have considered all that evidence, however, they do need to discuss all of the relevant evidence of record.

[00:07:57] Speaker 00:
And when considering service connection, nothing is more relevant than whether there's a diagnosis of a chronic condition in service.

[00:08:04] Speaker 00:
And so the board had the obligation to at least consider that evidence because it wasn't discussed anywhere in their opinion.

[00:08:12] Speaker 00:
but then later discussed and factual findings were made by the Veterans Court in the first instance, that was improper.

[00:08:18] Speaker 03:
Then when the board says the record shows no chronic right ankle or left great toe disability during service, end quote, they did make a finding adverse to your client.

[00:08:33] Speaker 03:
They did say they looked at the record.

[00:08:36] Speaker 03:
But I guess your concern is they didn't specifically call out

[00:08:40] Speaker 03:
this one particular examination report that has this question mark.

[00:08:44] Speaker 03:
And in your view, they needed to go that far to actually say, let me now address this question mark in this examination report.

[00:08:54] Speaker 00:
Correct, Your Honor.

[00:08:54] Speaker 00:
We believe in this case because the record is short.

[00:08:57] Speaker 00:
It's just over 400 pages, the record before the agency.

[00:09:00] Speaker 00:
It's not a voluminous 1,000 page record that the court was dealing with.

[00:09:04] Speaker 00:
And the service treatment record itself was just a few pages.

[00:09:07] Speaker 00:
This was a very clear piece of evidence that the board should have considered when they were conducting their review to determine whether or not there was service connection.

[00:09:15] Speaker 00:
You would obviously turn to the service treatment record to determine what happened in service.

[00:09:20] Speaker 00:
And this was evidence that they should have considered when making a determination as to what applied here.

[00:09:25] Speaker 02:
And the real issue is not making a determination as to what... You mean it's evidence that the board should have discussed expressly.

[00:09:33] Speaker 02:
We can't assume that it didn't consider it.

[00:09:35] Speaker 00:
Correct.

[00:09:35] Speaker 00:
They should have expressly discussed that evidence because it was relevant evidence to the issue of service connection.

[00:09:41] Speaker 00:
And I think the issue is not trying to pinpoint exactly the factual findings that the board made below.

[00:09:46] Speaker 00:
I think the bigger issue here is that the Veterans Court made factual findings in the first instance that are not clearly part of the record below.

[00:09:55] Speaker 00:
And that is outside of the Veterans Court's jurisdiction and then gives Mr. Clark no opportunity

[00:10:03] Speaker 00:
to contest those factual findings.

[00:10:05] Speaker 00:
If the board had made those factual findings, Mr. Clark would have had an opportunity to contest them at the Veterans Court to state his disagreement with the interpretation of the service treatment record and the meaning of that question mark.

[00:10:18] Speaker 00:
Because the board never made those factual findings, Mr. Clark wasn't given the opportunity to contest that information and provide an alternate reading of that service treatment record.

[00:10:28] Speaker 00:
Instead, as we stand before this court, we're unable to

[00:10:31] Speaker 00:
contest those factual findings today.

[00:10:33] Speaker 01:
You wouldn't be able to anyway.

[00:10:37] Speaker 00:
Here, before this court corrects this outside of the jurisdiction.

[00:10:40] Speaker 00:
And that's the problem is that if the Veterans Court is allowed to make factual findings in the first instance, then the veteran has no recourse to challenge those factual findings.

[00:10:49] Speaker 00:
And that's why this case should be remanded so the board can make the factual findings in the first instance.

[00:10:55] Speaker 00:
And then if Mr. Clark disagrees with those findings, he can challenge them at the Veterans Court where it's proper to challenge factual findings.

[00:11:03] Speaker 03:
All of that was also true in the Robinson case though.

[00:11:06] Speaker 03:
And we said that was unnecessary or we weren't going to undo what the Veterans Court did in that particular case.

[00:11:17] Speaker 00:
But in the Robinson case, Your Honor, the Veterans Court did not make additional factual findings that were not part of the record below.

[00:11:24] Speaker 00:
The Veterans Court limited itself to a review of the record below as it stood to make a determination that direct service connection was not reasonably raised before the board.

[00:11:34] Speaker 00:
In this case, the difference is the Veterans Court did not limit itself to what was in the record below and instead expanded the record.

[00:11:41] Speaker 02:
I'm sorry, I just want to make sure I understand.

[00:11:45] Speaker 02:
What did the Veterans Court rely on that was not actually in the record before the board?

[00:11:51] Speaker 00:
The interpretation of the question mark and the import of the meaning of the negative x-rays.

[00:11:56] Speaker 02:
But the question mark passage was in the record.

[00:12:01] Speaker 00:
Correct, Your Honor.

[00:12:02] Speaker 02:
So the Veterans Court said, I look at this, I don't think this reasonably raises a question.

[00:12:09] Speaker 02:
If that's all it did, it didn't rely on extra record material.

[00:12:14] Speaker 00:
The Veterans Court didn't simply look at that evidence and say that Section 3.303B was not raised.

[00:12:20] Speaker 00:
Instead, the Veterans Court looked at that evidence and said, what this question mark means is that there was not a diagnosis of arthritis in service.

[00:12:30] Speaker 00:
That's not what the record says.

[00:12:31] Speaker 00:
The record has this metatarsal proximal part question mark arthritis notation in the record.

[00:12:37] Speaker 00:
And there's no statement as to whether or not this means arthritis was diagnosed in service.

[00:12:42] Speaker 00:
or whether or not it means arthritis was not diagnosed in service.

[00:12:46] Speaker 00:
And this evidence was not discussed by the board in its opinion.

[00:12:50] Speaker 00:
And so the board did not make an interpretation as to what that piece of evidence meant.

[00:12:55] Speaker 00:
So the Veterans Court had no basis in the factual record below for making that statement as to what the question mark meant.

[00:13:04] Speaker 00:
They weren't simply looking at the record, taking it at face value, and making a determination that section 3.3 or 3B wasn't

[00:13:12] Speaker 00:
reasonably raised below.

[00:13:13] Speaker 00:
Instead, they were looking at the record, making additional factual findings, and making a determination that Section 3.303B, in fact, did not apply in Mr. Clark's case, not merely looking at whether or not it was raised.

[00:13:27] Speaker 03:
So the rule would be then, if it's not there on the record on its face... I mean, the Veterans Court can look at the record, and if it just looks at plain language, that's okay.

[00:13:42] Speaker 03:
But as soon as it needs to do the extra hop of interpreting the plain language, because the plain language perhaps is not so clear, then they've crossed the line that they shouldn't have crossed.

[00:13:57] Speaker 03:
And then what?

[00:13:58] Speaker 03:
That it's up to the... They ought to remand to the board to make that kind of an interpretive step?

[00:14:06] Speaker 00:
If the record is not clear on its face and requires additional factual findings in order for the veteran's court to reach its determination, then it should be remanded to the board below for the factual findings to be made because the board is the proper place.

[00:14:21] Speaker 00:
Appellate courts should not be making factual findings in the first instance.

[00:14:24] Speaker 00:
Instead, this should be the province of the agency, the board, to make these factual findings in the first instance themselves and provide an opportunity for the veteran to appeal those findings.

[00:14:35] Speaker 01:
Would you like to say if you have a bottle of time?

[00:14:37] Speaker 00:
Yes, your honor.

[00:14:40] Speaker 01:
Mr. Yale.

[00:14:51] Speaker 04:
May it please the court.

[00:14:53] Speaker 04:
We'd like to address a few points that were just addressed.

[00:14:58] Speaker 04:
Robinson clearly controls this case.

[00:15:01] Speaker 04:
In the Robinson case,

[00:15:04] Speaker 04:
This court found that there was no jurisdiction based on 7292 to consider the issue at play here, which is whether or not the entitlement to service connection based on a condition here, it's a chronic condition, whether or not that was reasonably raised.

[00:15:22] Speaker 04:
The Veterans Court acted perfectly appropriately.

[00:15:25] Speaker 04:
It went back through the record.

[00:15:27] Speaker 04:
It reviewed the record.

[00:15:28] Speaker 04:
It reviewed the board's findings.

[00:15:30] Speaker 04:
As Judge Chen pointed out,

[00:15:34] Speaker 04:
And page 63 of the joint appendix specifically shows the factual findings made by the board as to this chronic issue.

[00:15:45] Speaker 04:
And in relevant part it says, the record shows no chronic right ankle or left great toe disability during service.

[00:15:53] Speaker 04:
So there's no way to distinguish Robinson based upon the fact that in this case those factual findings were not

[00:16:03] Speaker 04:
in the record in this case.

[00:16:07] Speaker 03:
Well, I guess to put a finer point on it, the point the other side is trying to make is that if you look at the record and you can see whether or not plainly a certain claim had been raised, then the Veterans Court is entitled to do that.

[00:16:26] Speaker 03:
But as soon as there is ambiguity in the record, then that ambiguity

[00:16:32] Speaker 03:
ought to be resolved in the first instance by the board.

[00:16:37] Speaker 03:
And so here, I guess in the other side's view, what we had here was in fact ambiguity.

[00:16:44] Speaker 03:
And so what the Veterans Court needed to do was send that back to the board to let the board figure out that ambiguity.

[00:16:53] Speaker 04:
Well, the Veterans Court, based on the Robbins case, it was tasked with reviewing whether or not this was reasonably raised.

[00:17:01] Speaker 04:
It went through the record.

[00:17:02] Speaker 04:
It made findings or applied the law to the facts that are in the record and found that it was not reasonably raised.

[00:17:11] Speaker 04:
Now, so there's this one document that is not specifically called out in the board decision, but there's no law that's been cited where you actually have to call out a specific document.

[00:17:26] Speaker 04:
The conclusion on page 63 of the Joint Appendix specifically covers that document.

[00:17:32] Speaker 04:
Elsewhere in the board decision, it discusses the fact that the X-rays were negative for Mr. Clark.

[00:17:39] Speaker 04:
That's specifically referring to the same document, the medical records, this consultation report, which mentions X-rays.

[00:17:49] Speaker 04:
Besides the fact that the board is presumed to have reviewed all of the evidence in the record.

[00:17:55] Speaker 04:
And so we just don't see how

[00:18:00] Speaker 04:
there could possibly be jurisdiction in this case and under 7292, but even regardless, there were no factual findings made in the first instance.

[00:18:13] Speaker 04:
All of these were in the record.

[00:18:15] Speaker 04:
The board considered them.

[00:18:18] Speaker 04:
X-rays was the other one that had been called out in petitioner's brief.

[00:18:22] Speaker 04:
I mean, the X-rays being negative were mentioned a number of times in the board's decision and in the record.

[00:18:30] Speaker 04:
I'd also like to just briefly address Chenery.

[00:18:33] Speaker 04:
I mean, Chenery is not an issue here.

[00:18:35] Speaker 04:
The Veterans Court is an appellate court.

[00:18:38] Speaker 04:
Chenery applies when there's an administrative decision that solely needs to be made by the agency.

[00:18:45] Speaker 04:
Whether or not an issue for entitlement was reasonably raised or not, I mean, that's an issue that is also, as shown in Robinson, for the appellate courts to

[00:18:56] Speaker 04:
I mean, that's a typical appellate court issue.

[00:18:59] Speaker 04:
So Chenery just doesn't apply here.

[00:19:01] Speaker 04:
And there's also an exception to Chenery when the result would be the same.

[00:19:07] Speaker 04:
And here, the result would most certainly be the same.

[00:19:10] Speaker 04:
The board findings that there was no chronic condition, that gets you to the same place.

[00:19:16] Speaker 04:
So for those two reasons, Chenery is just not applicable here.

[00:19:26] Speaker 04:
There are no further questions.

[00:19:29] Speaker 01:
No one is ever penalized by not using all their time.

[00:19:32] Speaker 04:
We simply ask that the court dismiss this case for lack of jurisdiction.

[00:19:36] Speaker 01:
Thank you, Mr. Yale.

[00:19:38] Speaker 01:
Ms.

[00:19:39] Speaker 01:
Duxley, we'll give you two minutes.

[00:19:43] Speaker 00:
Thank you, Your Honor.

[00:19:45] Speaker 00:
Your Honor, just one point on rebuttal, going back to the Robinson case that was raised both by Judge Chan and by counsel.

[00:19:52] Speaker 00:
This case is not like the Robinson case.

[00:19:54] Speaker 00:
Instead, this case is much more like the Mayfield case that we cited in our brief in which the Veterans Court considered evidence that was not considered by the board below, and this court found that was improper because there's no way to know what the board would have done with that evidence if it had considered it in the first instance.

[00:20:13] Speaker 00:
Similarly, in this case, there's no way to know how the board would have interpreted that service treatment record if it had done so in the first instance.

[00:20:21] Speaker 00:
For that reason, this court, like we did in Mayfield, should remand the case in order for the Veterans Court to remand to the board to make that determination in the first instance.

[00:20:31] Speaker 00:
Similarly, as in the Hensley case, this court found that it was improper for the Veterans Court to make additional factual findings in order to reach its determination when those factual findings weren't made by the board in the first instance.

[00:20:45] Speaker 00:
Again, this goes to the equities of the case.

[00:20:47] Speaker 00:
When the Veterans Court is making factual findings in the first instance,

[00:20:51] Speaker 00:
the veteran then has no recourse for appealing because we understand we cannot appeal those factual findings to this court even if we disagree with them.

[00:20:58] Speaker 01:
Thank you, Your Honor.

[00:20:59] Speaker 01:
Thank you, Ms.

[00:21:00] Speaker 01:
Dutry.

[00:21:01] Speaker 01:
We'll take the case on revising.