[00:00:10] Speaker 04:
Ms.

[00:00:31] Speaker 04:
Booth, you prepared to go forward?

[00:00:33] Speaker 01:
Yes, I am, thank you.

[00:00:34] Speaker 01:
Please proceed then.

[00:00:37] Speaker 01:
Mr. Cata presents the question of the meaning of the word noted as used within Section 38 USC 1111.

[00:00:44] Speaker 01:
In Mr. Cata's view, the word noted requires or means a diagnosis of a defect made at the time of the examination for entrance into service and recorded in the medical examination report.

[00:01:00] Speaker 01:
This definition is consistent with the statute which refers to which states that the veteran will be presumed to be in sound condition except for defects, infirmities, disorders which are noted at the time of the exam.

[00:01:19] Speaker 01:
The secretary's regulation at 3.304B essentially parrots that language with the two clarifications

[00:01:29] Speaker 01:
which actually support Mr. Gayden.

[00:01:32] Speaker 05:
What legal standard do you think the Veterans Court adopted that's incorrect?

[00:01:38] Speaker 01:
The Veterans Court did not review the question of the correct interpretation.

[00:01:47] Speaker 01:
It instead reviewed the board's fact finding and agreed that there was no error in the board's findings of fact.

[00:01:56] Speaker 05:
Well, let me, I guess, ask this question and then just correct my various assumptions.

[00:02:03] Speaker 05:
I took it from your brief that you have your legal interpretation, the legal standard.

[00:02:10] Speaker 05:
And as you know, that's pretty much all we get to talk about is legal standards.

[00:02:15] Speaker 05:
It has two parts.

[00:02:17] Speaker 05:
One, that what has to be recorded is a diagnosis.

[00:02:20] Speaker 05:
And second, that what has to be recorded is a then-current condition not passed.

[00:02:26] Speaker ?:
Yes.

[00:02:26] Speaker 05:
Tell me why the following is not true.

[00:02:32] Speaker 05:
As to the first, there has to be a diagnosis.

[00:02:35] Speaker 05:
You didn't make that argument to the board, to the Veterans Court.

[00:02:39] Speaker 05:
And as to the currency, not as current as of the time of entry into service, the Veterans Court not only didn't disagree with that, but indicated that it agreed that the past is not the same as the present.

[00:02:56] Speaker 05:
If you put those two things together, what preserved legal issue is in front of us?

[00:03:04] Speaker 01:
The question then, Your Honor, is how do you determine?

[00:03:08] Speaker 01:
The court found that there was, it affirmed the board's finding that there was a notation of a defect.

[00:03:16] Speaker 01:
So the question is then, what does that notation constitute?

[00:03:22] Speaker 01:
The currency.

[00:03:23] Speaker 01:
And that, I think, is an interpretation of what does notation mean as used in the law.

[00:03:31] Speaker 01:
The currency, I think, is very clear because it's suggested by the statute which requires... No, no, I'm not suggesting that there's any doubt that

[00:03:45] Speaker 05:
what has to be, I'm using the word recorded to avoid the regulatory term, what has to be recorded in order to be a qualifying notation is some condition that's current as of the time of entry into service.

[00:03:57] Speaker 05:
But my understanding is the Veterans Court agreed with that.

[00:04:02] Speaker 05:
And so what's left is a possible interpretation of the particulars of this case, whether the note that the observations about

[00:04:14] Speaker 05:
treatment by the Brooklyn psychiatrist or something were or not current, but we don't get to decide application of law to facts.

[00:04:24] Speaker 01:
Correct.

[00:04:24] Speaker 01:
Correct.

[00:04:27] Speaker 01:
The issue is preserved for this court because there is a total absence of any evidence of a defect at the time of examination.

[00:04:36] Speaker 01:
At the time of examination, of course, supported by the regulation, which rules out history.

[00:04:44] Speaker 01:
as constituting a notation.

[00:04:50] Speaker 05:
The notion... Did you make an argument to the Veterans Court that a diagnosis had to be written down something distinct from the, I don't remember, either the statutory or the regulatory phrases, defects,

[00:05:12] Speaker 05:
It's a three word phrase, defect something something.

[00:05:16] Speaker 01:
Defect infirmity or disorder.

[00:05:22] Speaker 01:
I am sure that we specifically asserted that.

[00:05:39] Speaker 01:
What we argued, Your Honor, was that Section 1111 requires that there actually be a defect at the time, a defect recorded within the report of medical examination.

[00:05:58] Speaker 00:
Now that's the actual statutory language though, defect, right?

[00:06:01] Speaker 00:
Correct.

[00:06:03] Speaker 00:
Okay, so you didn't say something beyond that?

[00:06:07] Speaker 00:
for example, saying it had to be a diagnosis?

[00:06:12] Speaker 01:
The board relied on a finding that the word holdover constituted a defect.

[00:06:18] Speaker 01:
What we argued was that holdover was not a defect, that it did not indicate a condition or a disability, and that

[00:06:35] Speaker 01:
the word C consultation sheet which was the other item that the board and the court cited to.

[00:06:41] Speaker 01:
Those words by themselves were not a defect as defined by the Quirin and the Wynn cases at the CABC.

[00:06:51] Speaker 01:
And those cases held that a defect amounts to or arises from an injury.

[00:06:58] Speaker 01:
It was the absence of any finding, whether we call it a diagnosis or a detection,

[00:07:04] Speaker 01:
or just a finding, it was the absence of that finding of a defect that is fatal to the notation.

[00:07:15] Speaker 04:
If you look at the regulations, just take the regulations as a given, is their use of noted ambiguous?

[00:07:24] Speaker 01:
Their use of noted, Your Honor, is identical to the

[00:07:30] Speaker 01:
Statutes use have noted with the exception, as I indicated, that it makes two clarifications that... A history of pre-service existence and conditions recorded.

[00:07:40] Speaker 01:
Right, right.

[00:07:44] Speaker 04:
So is your answer, it's not ambiguous or it is ambiguous?

[00:07:49] Speaker 01:
Well, in my view, it is not ambiguous, but if it is, it has the same ambiguity as the statute does.

[00:07:57] Speaker 01:
because the regulation does not expand on what notation means other than to add those two clarifications about timing and clarifying that it must actually be recorded.

[00:08:13] Speaker 01:
But it doesn't otherwise explain what a notation is.

[00:08:17] Speaker 01:
So if the regulation is ambiguous, the statute is too because it's the same language.

[00:08:27] Speaker 04:
But you started your answer to me with the words, in my view, the regulation is not ambiguous.

[00:08:36] Speaker 04:
So you can pretty much stop there.

[00:08:39] Speaker 01:
Exactly.

[00:08:40] Speaker 04:
Unless you're arguing against your own view.

[00:08:42] Speaker 01:
No.

[00:08:43] Speaker 01:
The statute is not ambiguous.

[00:08:48] Speaker 01:
Because the statute adopts the same language as the regulation, that does not make the regulation ambiguous, but rather the question is, is the statute ambiguous?

[00:08:58] Speaker 01:
And if the statute is ambiguous, then under Brown v. Gardner, interpretive doubt would be extended to the veteran.

[00:09:06] Speaker 01:
I am assuming, Your Honor, that you're referring to our deference and whether the Secretary is entitled to deference, that his view... I don't assume anything.

[00:09:15] Speaker 04:
I just asked you a question.

[00:09:18] Speaker 01:
That assumption aside, then, I would continue that with respect to... My question was, is the regulation ambiguous?

[00:09:27] Speaker 04:
And you said, in my view, no.

[00:09:28] Speaker 01:
Correct.

[00:09:30] Speaker 05:
Correct, Your Honor.

[00:09:33] Speaker 05:
So are you pressing an argument here for a difference between the defect infirmity disorder on one hand and a diagnosis on the other?

[00:09:47] Speaker 01:
No, Your Honor.

[00:09:49] Speaker 01:
I think they go hand in hand.

[00:09:51] Speaker 01:
And I don't think it's particularly important whether we use the term diagnosis, or as the government prefers in its brief, detection, or whether we would just generically say finding.

[00:10:05] Speaker 01:
It still requires some kind of recording of a defect which the Veterans Court has

[00:10:15] Speaker 01:
stated amounts to or arises from an injury.

[00:10:19] Speaker 00:
I'm really struggling with this because it doesn't seem as if you have an interpretation legal issue for us.

[00:10:25] Speaker 00:
Instead, you're asking us to look at the record and look at this court's findings below and see it's an application of law to fact, which is something we're not supposed to do.

[00:10:37] Speaker 00:
So what is the legal issue that you're asking us to review?

[00:10:44] Speaker 01:
This court has held in the Walzer case and also in Akers v. Shinseki that if there is a total absence of evidence to meet the legal standard, not the sufficiency of the evidence that's there, but is there a total absence of evidence to meet the legal standard, then this court has jurisdiction to review

[00:11:09] Speaker 01:
as a matter of law what that legal standard is.

[00:11:12] Speaker 01:
That implicates review of what the legal standard is.

[00:11:15] Speaker 01:
That's what we've presented here.

[00:11:17] Speaker 00:
So your view is that we should look at the 42 holdover and the comments that are made on the consultation sheet and understand that to be a total lack of evidence as opposed to the court looking at that evidence and thinking it's sufficient.

[00:11:36] Speaker 01:
The question is whether any of the evidence that the court

[00:11:39] Speaker 01:
cited to, relies upon, does it meet the legal standard in any way?

[00:11:45] Speaker 01:
Not as it's sufficient to meet the legal standard, but sufficiency in fact, as the Wolter case addressed, but rather, what is the legal standard?

[00:11:54] Speaker 01:
Does that evidence come within the scope of the statutory definition or the statutory meaning of location?

[00:12:03] Speaker 00:
It sounds like application of law to fact to me.

[00:12:06] Speaker 01:
Well, Your Honor, I guess put differently, what does notation mean?

[00:12:11] Speaker 01:
What does it require?

[00:12:12] Speaker 01:
How does VA or the Veterans Court look at the evidence and conclude whether a legal standard has been met if we don't know what the legal standard is?

[00:12:24] Speaker 01:
That's the question here.

[00:12:25] Speaker 01:
What is the legal standard?

[00:12:28] Speaker 01:
Once we know the legal standard, then it would be a question of application of law

[00:12:36] Speaker 01:
a lot of fact, but we don't yet know, or we don't have an agreement.

[00:12:39] Speaker 01:
That's what Mr. Gata challenges, is the legal standard for the concept of notation.

[00:12:45] Speaker 03:
You're within your rebuttal time, but it's up to you.

[00:12:49] Speaker 03:
Thank you.

[00:12:49] Speaker 01:
I would like to reserve.

[00:12:57] Speaker 02:
Good morning, and may it please the court.

[00:12:59] Speaker 02:
Mr. Gata's appeal merely challenges the weighing of evidence.

[00:13:03] Speaker 02:
It's not within this court's jurisdiction.

[00:13:06] Speaker 02:
Starting with the jurisdictional defects, there are several here.

[00:13:09] Speaker 02:
The argument that Mr. Geta made in his opening brief that there is a legal error that was made below with respect to the term noted as requiring a diagnosis was not raised below.

[00:13:23] Speaker 02:
Now, that would constitute a waiver, as we pointed out in our brief.

[00:13:27] Speaker 02:
But it also invites the court to really go and examine the application of law to fact, which the court doesn't have a jurisdiction to do.

[00:13:36] Speaker 02:
Counsel referred to the Walzer case, which is instructive on this point, because in that case, the Federal Circuit noted that even though Mr. Walzer was challenging, essentially saying that there's a total absence of evidence, it would be legally insufficient to meet the requirement to rebut the presumption of connection, of soundness rather, the court found that, in fact, he was simply challenging the sufficiency in fact of the evidence.

[00:14:06] Speaker 02:
and the court found that it didn't have jurisdiction to review that.

[00:14:09] Speaker 02:
The same is true here, where Mr. Geta is asking the court, in essence, to re-review the facts and re-weigh the evidence, which it cannot do.

[00:14:20] Speaker 02:
There's also, it's important to recall that we are here on a cue claim.

[00:14:24] Speaker 02:
A cue claim being, obviously, a higher pleading standard, as the court noted in its decision in Andre.

[00:14:31] Speaker 02:
The veteran has the burden of pointing out a specific allegation of error.

[00:14:36] Speaker 02:
That's reflected in the regulations at 20.1404.

[00:14:40] Speaker 04:
And it has to have been outcome-determinative as well.

[00:14:44] Speaker 02:
Well, it certainly has to be outcome-determinative, but the absence of this noted equals diagnosis argument being brought here for the first time, on a cue context, that defect is particularly problematic.

[00:15:02] Speaker 02:
With respect to the merits, if the court were to reach the merits,

[00:15:05] Speaker 02:
It should affirm.

[00:15:06] Speaker 02:
Again, a Q claim being a rare and specific error as reflected in 20.1403A.

[00:15:14] Speaker 02:
Council referred to the standard here as being one of the legal standard for noted is some kind of recording.

[00:15:24] Speaker 02:
At least that was one of the articulations that Council made.

[00:15:27] Speaker 02:
On this record, it is clear that that standard would have been met.

[00:15:32] Speaker 02:
And really getting to the Q claim, what was before the board and what was before the Veterans Court was the question of whether or not reasonable minds could differ about whether or not this defect was noted at the time of entry.

[00:15:48] Speaker 05:
And what the... I'm sorry.

[00:15:49] Speaker 05:
Are we now talking about whether what was noted was a current as of entry into service condition or are we now talking about

[00:16:00] Speaker 05:
whether what was recorded constitutes a diagnosis?

[00:16:05] Speaker 02:
Well, Your Honor, I would agree with your characterization of those.

[00:16:09] Speaker 02:
Those are two prongs of the argument that Mr. Geta has raised.

[00:16:13] Speaker 02:
But what the board did and what the Veterans Court looked at was an application of the regulation, which does not require that two-prong analysis.

[00:16:22] Speaker 05:
So to the extent that the board... But you transitioned into this piece of your argument by saying,

[00:16:28] Speaker 05:
Let's now suppose that the question of whether a diagnosis is required is properly in front of you because they argued it.

[00:16:37] Speaker 05:
And then what?

[00:16:39] Speaker 05:
And then you wanted to say you either have a legal assertion, a diagnosis is not required.

[00:16:44] Speaker 05:
That's what I thought you were going to say, but instead you started talking about how there really was one here or something.

[00:16:50] Speaker 02:
So I started getting confused.

[00:16:51] Speaker 02:
Sure.

[00:16:52] Speaker 02:
So Your Honor, again, assuming we're on the merits stage, the question is whether or not

[00:16:58] Speaker 02:
that if there is a requirement of a diagnosis in the term noted, that on the plain face of the statute and the regulation is not consistent with it.

[00:17:07] Speaker 02:
Obviously, Congress did not use the term diagnosed.

[00:17:10] Speaker 02:
The VA didn't use it in its regulation.

[00:17:14] Speaker 02:
Clearly, what Congress did say in using the term noted is there is some need to memorialize.

[00:17:20] Speaker 02:
And on this record, what the board looked at and what the Veterans Court looked at

[00:17:26] Speaker 02:
was the evidence.

[00:17:27] Speaker 05:
But there's no possible doubt that something was written down.

[00:17:31] Speaker 05:
The question is, was what was written down the thing that had to be written down for purposes of the statute or the regulation?

[00:17:38] Speaker 05:
So what had to be written down?

[00:17:40] Speaker 02:
Well, Your Honor, what had to be noted was the defect, infirmity, or disorder.

[00:17:47] Speaker 05:
Right.

[00:17:47] Speaker 05:
So let's say what had to be written down to constitute a noting

[00:17:52] Speaker 05:
was a identifiable label for something in the person's body or mind.

[00:18:00] Speaker 05:
What was that that was written down about something in Mr. Gaeta's body or mind that was in his body or mind at the time of his entry into service?

[00:18:13] Speaker 02:
Well, Your Honor, I'm not sure that I would agree to the extent that that is not the standard that needed to be met.

[00:18:20] Speaker 05:
But in any event, defect, infirmity, or disorder?

[00:18:24] Speaker 05:
Yes.

[00:18:25] Speaker 05:
Something about his body or mind then and there.

[00:18:29] Speaker 02:
Yes, Your Honor.

[00:18:30] Speaker 02:
But what the regulation, what the evidence shows is what occurred here was that the medical examiner, when he first examined Mr. Geta, indicated this notation of 42, which corresponds to a psychiatric abnormality.

[00:18:44] Speaker 02:
And then there was this consultation sheet

[00:18:46] Speaker 02:
which is in the record, which in turn referred to a private physician's examination of Mr. Guetta.

[00:18:52] Speaker 02:
And the private physician's examination of Mr. Guetta, Dr. Rizzuti, stated that Mr. Guetta had been under his care for a number of years and was, quote, suffering from essential hypertension and anxiety neuroses.

[00:19:05] Speaker 05:
What are you reading from?

[00:19:06] Speaker 02:
And I'm reading from page 44 of the appendix.

[00:19:10] Speaker 02:
This was a document that was dated October 29, 1963.

[00:19:14] Speaker 02:
It was incorporated.

[00:19:17] Speaker 02:
into the medical examination report prior to entry.

[00:19:21] Speaker 02:
And it was part of the record that the board looked at.

[00:19:25] Speaker 05:
And I'm going to assume that they either have said or are saying, well, this doesn't actually speak of what was happening on November 20, 1963 of all days.

[00:19:41] Speaker 05:
This says, on and off since February of 1961, suffering from.

[00:19:48] Speaker 05:
maybe one way their point is.

[00:19:51] Speaker 05:
That doesn't yet say what his condition was on November 20, 1963.

[00:19:54] Speaker 02:
Well, I would agree with your honor.

[00:19:56] Speaker 02:
It doesn't say specifically what his condition was on that date.

[00:20:00] Speaker 02:
But again, the question before the board was whether or not there was a clear and unmistakable error.

[00:20:06] Speaker 02:
I would point the court's attention to page 21 of the appendix, which is the part of the board's decision in which it examined whether or not there was Q on this record.

[00:20:18] Speaker 02:
And what it found is there was, quote, more than a pre-service existence recorded at the time of examination.

[00:20:26] Speaker 02:
If you're bound by that fact, then you're consistent with the argument that I think counsel is making here today.

[00:20:32] Speaker 02:
You are bound by that fact.

[00:20:34] Speaker 02:
That is sufficient to meet the terms of the regulation.

[00:20:36] Speaker 02:
Again, we're looking at whether it was plausible.

[00:20:39] Speaker 02:
Reasonable minds could differ.

[00:20:41] Speaker 02:
If reasonable minds can differ, by definition, it's not Q. And so under that heightened standard,

[00:20:46] Speaker 02:
Once we get into the evidence and we're looking at the examination reports, we're obviously we're beyond the court's jurisdiction.

[00:20:52] Speaker 02:
But looking at the factual records found below, it's clear that the standard was met.

[00:20:57] Speaker 02:
The term noted is really a fact intensive inquiry in these types of cases.

[00:21:02] Speaker 02:
And the board in the first instance has the obligation to look at the records that were part of the pre-service examination and determine whether or not that requirement was met.

[00:21:14] Speaker 02:
The Verdun case, the Veterans Court's decision in Verdun is helpful on this point.

[00:21:18] Speaker 02:
We cited it in our brief.

[00:21:20] Speaker 02:
In that case, the person who was being examined had bunions that were not symptomatic at the time of examination.

[00:21:29] Speaker 02:
And yet the Veterans Court found that there was still, based on other evidence that was contemporaneous, sufficient to constitute a notation.

[00:21:37] Speaker 02:
And the argument that Mr. Geta is making, the construction that he's advocating in terms

[00:21:43] Speaker 02:
adopting a diagnosis requirement would really impose a severe burden on the examiners who are carrying out these examinations during the pre-service examination process.

[00:21:55] Speaker 02:
And it is inconsistent with the language in the statute, but also just the purpose of the presumption of soundness, which the court explained in Wagner in terms of making sure that the VA does not

[00:22:08] Speaker 02:
without any basis, deny service connection on the basis of some condition being a pre-service condition.

[00:22:17] Speaker 02:
I do also want to point out the question on ambiguity.

[00:22:20] Speaker 02:
Our position would be that the statute is clear.

[00:22:22] Speaker 02:
It's not ambiguous as to whether or not a diagnosis is required.

[00:22:28] Speaker 02:
And I simply would point out it doesn't say diagnosis.

[00:22:31] Speaker 02:
Even if the term noted were to be considered ambiguous,

[00:22:35] Speaker 02:
there would be a basis to defer to the VA's interpretation under our, as this court noted in Reisenstein as well, that the Brown versus Gardner concept of deferring to the veteran does not trump a Chevron type of analysis of deference to the agency as long as it's reasonable.

[00:22:55] Speaker 02:
And on that basis, we would submit that the court should dismiss the appeal for lack of jurisdiction or affirm the judgment bullet.

[00:23:04] Speaker 02:
Thank you.

[00:23:10] Speaker 01:
Thank you, Your Honor.

[00:23:11] Speaker 01:
If I may comment on some of the government's argument.

[00:23:18] Speaker 01:
First of all, referring to the Dr. Rizzuti letter, it was dated October 29, 1963.

[00:23:24] Speaker 01:
It was not prepared on that date.

[00:23:26] Speaker 01:
We don't know what date it was prepared.

[00:23:28] Speaker 01:
It's undated.

[00:23:29] Speaker 01:
So it's the fact that there is nothing to indicate that it

[00:23:35] Speaker 01:
that it was a current diagnosis.

[00:23:37] Speaker 01:
I would also note that Dr. Rizzuti also stated.

[00:23:39] Speaker 00:
What about how it said suffering?

[00:23:42] Speaker 00:
I think that was the language, suffering as opposed to suffered.

[00:23:46] Speaker 01:
It depends on what date that was written, Your Honor.

[00:23:49] Speaker 01:
He may have been suffering from some kind of a nervous disorder at the time the letter was written.

[00:23:55] Speaker 01:
He also states he was suffering from hypertension.

[00:23:59] Speaker 01:
And that's not noted in the exam either.

[00:24:01] Speaker 01:
So it's not a current report.

[00:24:03] Speaker 01:
It's not recorded.

[00:24:05] Speaker 01:
in the examination report, and in any event, it's clearly excluded because it's history.

[00:24:12] Speaker 01:
Even if that's a recent history, it is nevertheless history, which the secretary's own regulation very clearly excludes.

[00:24:21] Speaker 05:
Why isn't it reasonable, at least for the, just focusing on the anxiety neurosis, reasonable for the board to have concluded

[00:24:36] Speaker 05:
This sufficiently is a condition as of late November, because this is not the kind of condition that we would expect in the absence of evidence to go away.

[00:24:51] Speaker 05:
Go away in any reasonable time from when Dr. Rizzuti's letter was prepared.

[00:24:57] Speaker 01:
Well, number one, we don't know when Dr. Rizzuti's letter was prepared.

[00:25:02] Speaker 01:
We know when it was received, but not when it was prepared.

[00:25:05] Speaker 01:
Number two, there is no medical basis to conclude that what Dr. Rizzuti, I believe, if either Dr. Rizzuti or the veteran said that his nervous disorder was manifested by stuttering.

[00:25:24] Speaker 01:
There is no stuttering noted in this medical examination.

[00:25:31] Speaker 01:
So I don't think there's a medical basis to conclude that a nervous disorder will not resolve in a short amount of time.

[00:25:40] Speaker 01:
I would note that nervous disorders are not considered by VA to be chronic.

[00:25:46] Speaker 01:
So I think what the letter does, what the agency or the Selective Service Examiner was well within his rights to do, was to examine that letter.

[00:25:58] Speaker 01:
And then having been alerted to the problem, make an additional examination of the veteran, that happened and no findings were made.

[00:26:05] Speaker 03:
Wrapping up, Ms.

[00:26:06] Speaker 01:
B. Yes, Your Honor.

[00:26:11] Speaker 01:
The secretary's efforts to defeat jurisdiction, the secretary states in his brief that the board applied the law to the facts and later that applied legal standards.

[00:26:24] Speaker 01:
Those legal standards are what are at issue here in view of the fact that there is no evidence to support the legal standard if it is construed as Mr. Gatiss admits that it should be, that is warranted.

[00:26:38] Speaker 01:
Thank you, Your Honor.

[00:26:40] Speaker 04:
The matter will stand submitted.