[00:00:53] Speaker 02:
Next case is Goodman v. Shulkin.

[00:00:55] Speaker 02:
Council ready to proceed?

[00:00:57] Speaker 05:
Yes, Your Honor.

[00:01:00] Speaker 02:
Mr. Stoltz?

[00:01:04] Speaker 02:
You may.

[00:01:05] Speaker 05:
Good morning, Your Honors.

[00:01:06] Speaker 05:
May it please the Court?

[00:01:10] Speaker 05:
The Veterans Court aired when it held that the regulation left it to medical experts to identify which diseases are exceptions to Section 3.317's presumptions.

[00:01:24] Speaker 05:
This is error because it is up to the secretary to decide that issue.

[00:01:29] Speaker 05:
The VA examiner provides medical information about an individual veteran to enable VA adjudicators to make a case-by-case evaluation about that individual's entitlement.

[00:01:43] Speaker 05:
The examiner is not allowed to opine as to disease-by-disease conclusions.

[00:01:50] Speaker 05:
The regulatory history

[00:01:52] Speaker 05:
as well as the training letter cited in the Joint Appendix, support this position.

[00:01:59] Speaker 05:
Section 3.317 requires that medical examiners consider the particular facts of a veteran's case when determining whether a disease process is a medically unexplained multi-symptom illness.

[00:02:12] Speaker 05:
The specific error in the veteran's court decision can be found at pages 2 and 3 of the decision when it

[00:02:20] Speaker 05:
quote, left it to medical experts to identify which diseases are such as diabetes and multiple sclerosis, in that they have at least a partially explained ideology and pathophysiology.

[00:02:33] Speaker 05:
This is error, because a medical examiner's role is to examine an individual veteran to enable VA adjudicators to make the case-by-case evaluation.

[00:02:44] Speaker 05:
The examiner's not allowed, again, your honors, to speculate.

[00:02:47] Speaker 04:
Just so I understand,

[00:02:49] Speaker 04:
your thought process.

[00:02:51] Speaker 04:
What is it that the medical examiner or the fact finder here should have done?

[00:02:57] Speaker 04:
We have someone here who's claiming knee pain and the knee pain is due to rheumatoid arthritis.

[00:03:07] Speaker 04:
And so now the ultimate fact finder has to figure out, okay, is this type of unexplained

[00:03:15] Speaker 04:
medical ailment that has no known ideology.

[00:03:21] Speaker 04:
So what was it that needed to happen in order for the fact-finder here to have legitimately concluded that in this particular instance, this veteran's ailment does not fall within this regulation?

[00:03:39] Speaker 05:
What needed to happen, Your Honor, is the independent medical examiner needed to

[00:03:46] Speaker 05:
truly render an examination of Mr. Goodman.

[00:03:50] Speaker 05:
What she did and what the Veterans Court endorsed is she said, look, rheumatoid arthritis, which this veteran suffers from, has a partially explained etiology and pathophysiology.

[00:04:03] Speaker 05:
So it's not going to be a medically unexplained chronic multi-symptom illness.

[00:04:07] Speaker 04:
That is a conclusion.

[00:04:08] Speaker 04:
Yeah, I know what the medical examiner did.

[00:04:12] Speaker 04:
I know what the board did.

[00:04:13] Speaker 04:
I'm trying to create

[00:04:15] Speaker 04:
this other alternate parallel world on how it would be the right process for the medical examiner and the fact finder here to have reached this very same conclusion in that alternate.

[00:04:30] Speaker 04:
What is the methodology to get there if it's not to do it this particular way that happened?

[00:04:36] Speaker 05:
Sure, Your Honor, and I apologize for misunderstanding the question.

[00:04:39] Speaker 05:
The proper way for the examiner to get there would be to consider Mr. Goodman's exposures

[00:04:45] Speaker 05:
to consider Mr. Goodman's testimony.

[00:04:49] Speaker 05:
That was all laid out at the Veterans Court below.

[00:04:52] Speaker 05:
It's cited in the Joint Dependence.

[00:04:53] Speaker 05:
It's a dot by dot explanation of all the things that happened with Mr. Goodman while he was serving in the Gulf.

[00:05:01] Speaker 04:
At one point before the VA, and I can't remember, did Mr. Goodman argue that environmental factors shouldn't be considered?

[00:05:15] Speaker 05:
The argument that was made below as far as I read it and as far as I recall pleading it below was that... I'm just trying to... Am I remembering something incorrectly?

[00:05:27] Speaker 05:
I don't know that you're remembering anything incorrectly.

[00:05:29] Speaker 05:
It's just that I know that the environmental factors such as his exposures to burn pits were specifically asked to be considered once it got to the Board of Veterans' Appeals.

[00:05:37] Speaker 05:
I don't recall any time before the VA him saying that environmental factors should not be considered.

[00:05:43] Speaker 05:
The argument is that the specific environmental factors that he was exposed to should be considered.

[00:05:49] Speaker 05:
And that was what was argued at the board.

[00:05:51] Speaker 05:
And the board undertook some of that analysis.

[00:05:54] Speaker 05:
But the problem with the board's decision is that while it undertook that analysis, it was relying on this medical expert's opinion that has this conclusion in it that graphs on rheumatoid arthritis into 3.317 all of a sudden.

[00:06:09] Speaker 05:
So had the examiner really truly

[00:06:11] Speaker 05:
articulated and examined Mr. Goodman to your honor's question and laid out all of these factors at 3.317, the 38 U.S.C.

[00:06:18] Speaker 05:
1117, that the medical literature, that the training letter that's cited in the Joint Dependix from 2010, all of those things that are laid out that the examiners are supposed to do and some of the things that are laid out in the M-21.

[00:06:34] Speaker 05:
Had the examiner done that for Mr. Goodman, the examiner, I don't know that I'd be here today.

[00:06:40] Speaker 05:
And I don't know that Mr. Goodman may have won or may have lost, but regardless what the Veterans Court found that she was able to go ahead and graft on rheumatoid arthritis into that sentence of 3.317A22 is the legal error in this case.

[00:07:01] Speaker 05:
There is also no factual dispute as I discussed and as was conceded

[00:07:10] Speaker 05:
at the Veterans Court, and I believe was, I don't want to put words in my opposing counsel's mouth, but it appeared, if not conceded, at least alluded to, that there is no question what the examiner did here.

[00:07:23] Speaker 05:
There is no question that the examiner articulated that it was her opinion that rheumatoid arthritis in general has a partially explained ideology in pathophysiology.

[00:07:35] Speaker 00:
That was... All the other evidence that you're talking about, now that was considered by the board, wasn't it?

[00:07:41] Speaker 00:
So it's your position that it's not enough that the board received the medical examiner's opinion and all these other pieces of information, and instead the proper methodology requires at all times that the medical examiner have all of that information, him or herself or herself.

[00:07:58] Speaker 05:
The board is not, and this is, as Your Honor knows, the board is not a medical fact finder.

[00:08:05] Speaker 05:
And so for the board, and the board does in its decision.

[00:08:07] Speaker 00:
You said earlier it's the secretary's decision.

[00:08:09] Speaker 00:
So since it's the secretary's decision, shouldn't it be the secretary who decides on a case-by-case basis?

[00:08:14] Speaker 05:
But to make, and this is what's in the regulatory history that's cited and also in the training letter, in order to be able to render a case-by-case evaluation, the evidence, the expert evidence, which is all this really is at the end of the day, is expert evidence.

[00:08:27] Speaker 05:
The expert evidence has to speak specifically to the individual.

[00:08:32] Speaker 05:
If not, what the board did,

[00:08:34] Speaker 05:
And what the court then upheld was allowing one VA examiner to speak broadly that rheumatoid arthritis just has a partially explained ideology in pathophysiology.

[00:08:46] Speaker 05:
No matter how much analysis they gave or whether they checked boxes of things that are found in the regulation or the M21 or the training letter, the fact remains that it ultimately relied on, and the Veterans Court's decision specifically holds at pages two and three, it ultimately relied on

[00:09:04] Speaker 05:
the conclusion, unsupported by anything, other than a medical examiner's opinion, that rheumatoid arthritis is- We can't touch that, though.

[00:09:12] Speaker 00:
We can't look at what the board relied on and whether it came up with the right finding.

[00:09:17] Speaker 00:
The only thing you're asking us to consider is whether the medical examiner had to do more, right?

[00:09:23] Speaker 00:
Or do something different, a different kind of methodology.

[00:09:25] Speaker 05:
Yes.

[00:09:26] Speaker 00:
Okay.

[00:09:26] Speaker 05:
A different- a methodology that's called for by the law, which is an individual case-by-case evaluation.

[00:09:31] Speaker 05:
Yes, Your Honor, and that's what makes this case

[00:09:33] Speaker 05:
cleaner for your review.

[00:09:38] Speaker 05:
If there are no further questions, I'll reserve the balance of my time.

[00:09:42] Speaker 05:
Thank you.

[00:10:02] Speaker 06:
May it please the Court, Your Honors, inquired into what is the right process, what is the correct process in determining whether an individual deserves presumption for Gulf War veterans under 38 CFR 3.317.

[00:10:15] Speaker 06:
The right process, Your Honors, is exactly what occurred here.

[00:10:19] Speaker 06:
And it is consistent with the regulatory scheme that is overall for benefits.

[00:10:25] Speaker 04:
as well as the one that's established under the statute.

[00:10:46] Speaker 04:
is a broad, generic matter.

[00:10:48] Speaker 04:
We now know this medical examiner's opinion that rheumatoid arthritis has a partially known etiology and so therefore this claim under this particular regulation fails.

[00:11:03] Speaker 06:
Well, Your Honor, I would hope in that situation that the Board would require a little bit more information out of a medical examiner before relying upon that opinion.

[00:11:10] Speaker 06:
If you look at the medical

[00:11:12] Speaker 06:
opinion in this case, pages 91 and 91, 90, 91 and 92 of the record, you have on page 92 nine different medical texts that were relied upon by the director of rheumatology at a VA clinic.

[00:11:26] Speaker 06:
And the board specifically relied upon the doctor's expertise, the literature that this doctor relied upon, as well as what appeared to be the doctor's thorough review of the record.

[00:11:38] Speaker 06:
The board found the medical opinion in that case, in this case, to be persuasive and relied upon it.

[00:11:45] Speaker 06:
Now, the scenario that you posed, Your Honor, I could foresee a board saying this isn't very persuasive.

[00:11:50] Speaker 06:
Go back, please, and do another medical examination.

[00:11:56] Speaker 06:
What is consistent and what happens in medical examinations for VA benefits is you have the role of the medical officer, who under 410, I believe it is,

[00:12:08] Speaker 06:
furnishes, and that's 38 CFR 410, excuse me, I shortcutted that, furnishes ideological and pathological data for the board to consider, and the board under 4.2 considers the medical evidence that it has before it, as well as the evidence of the service and every other evidence in the record, and sort of, you know, takes all this evidence and determines whether a rating is appropriate for this person based upon their disability.

[00:12:39] Speaker 06:
That's exactly what happened here.

[00:12:41] Speaker 06:
We have the medical examiner take a look at rheumatoid arthritis based upon section 3.317, find it akin to diabetes and multiple sclerosis and therefore not a medically unexplained.

[00:12:54] Speaker 06:
I'm going to shortcut this by saying unexplained illness, Your Honor, instead of saying use me or medically unexplained chronic multisimple illness.

[00:13:02] Speaker 06:
And then that information was passed to the board.

[00:13:04] Speaker 06:
You can see that the board in pages 111, 112, 116 of the record relied heavily, finding this to be very persuasive, and concluded on a case-by-case basis that... Right, but everything you're saying I don't think is directly addressing the appellant's argument.

[00:13:22] Speaker 04:
The appellant's argument, as I understand it, is

[00:13:25] Speaker 04:
Just because the medical examiner, based on all of his or her knowledge and research in the area of rheumatoid arthritis, has arrived at this opinion as to the etiology or the extent we understand the etiology of rheumatoid arthritis generally.

[00:13:46] Speaker 04:
This appellant is saying, well, maybe I've got a specific kind of rheumatoid arthritis.

[00:13:54] Speaker 04:
And so therefore, what needed to happen here was a medical examiner really examining me, not examining the literature.

[00:14:03] Speaker 04:
And then only after examining me, arriving at conclusions and findings based on that examination of me.

[00:14:12] Speaker 04:
So what is your response to that?

[00:14:15] Speaker 04:
That therefore, there was an error in process in how to assess whether or not

[00:14:22] Speaker 04:
this particular veteran falls within this particular regulation?

[00:14:27] Speaker 06:
Yes, Your Honor.

[00:14:28] Speaker 06:
I do want to know just prior to answering that question that we do believe that Pellin's argument has changed.

[00:14:34] Speaker 06:
The argument originally was that precedent has been set, binding precedent, and we disagree with that position as well.

[00:14:40] Speaker 06:
But definitely the argument that we've heard today is, as Your Honor states it,

[00:14:46] Speaker 06:
What we are hearing from appellants today is that there is an underlying disagreement with the text of 38 CFR 3.317.

[00:14:53] Speaker 06:
It is a disagreement with the plain language of it without interpreting the plain language of it.

[00:15:00] Speaker 06:
The briefing that's before the court hasn't addressed the plain language of 3.317.

[00:15:07] Speaker 06:
What it has addressed is whether or not there was a surfing of authority by the medical examiner.

[00:15:15] Speaker 06:
We don't believe that there is an issue even on this front, Your Honor, because the plain language of 3.317 demonstrates that for a presumption, this presumption, much like many other presumptions in VA context, such as the ALS presumption or the presumption regarding Agent Orange, you look at the particular disease, not the impact of the disease on the individual, whether the individual has the disease.

[00:15:41] Speaker 06:
Because what are presumptions?

[00:15:42] Speaker 06:
Presumptions are methods of lowering the evidentiary burden for the claimant.

[00:15:48] Speaker 06:
Instead of having to demonstrate the three different steps of service connection, the existence, the disability, aggravation or occurrence during service, and then a nexus, you just need to prove that you have the disease.

[00:16:00] Speaker 06:
So the way that 38 USC 111-17, the statute upon which this is all based, and 38 CFR 3.317 reads,

[00:16:11] Speaker 06:
is looking exactly at specific illnesses.

[00:16:14] Speaker 06:
For example, the examples provided of what are unexplained illnesses are chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, and that is A, two, B, one, two, and three, Your Honors.

[00:16:31] Speaker 06:
And then a further explanation that chronic multisymptom illnesses are partially understood etiology and pathophysiology such as diabetes.

[00:16:40] Speaker 06:
and multiple sclerosis will not be considered medically unexplained.

[00:16:44] Speaker 06:
3.317 is not instructing the VA adjudicator to determine whether or not Mr. Goodman's specific etiology or pathophysiology is explained or not.

[00:16:57] Speaker 06:
It's talking about the disease in general.

[00:16:59] Speaker 06:
And this is consistent with Agent Orange's presumption, with the ALS presumption.

[00:17:05] Speaker 06:
Mr. Goodman relies upon a phrase in the regulatory history to create his argument.

[00:17:11] Speaker 06:
Now, we noted in our briefing that this phrase is taken out of context, that actually when read in context, the regulatory history says this change, and this change being the 2010 October Amendment that actually added in the diseases, multiple sclerosis, and diabetes.

[00:17:31] Speaker 06:
This change will have the effect of delegating to the VA adjudicators the authority determined on a case-by-case basis whether additional diseases may meet the criteria, paragraph A22, in the same manner as they make the determinations necessary for deciding claims.

[00:17:47] Speaker 06:
As I've already noted, it was done in the same matter.

[00:17:49] Speaker 06:
And, Your Honor, if you don't mind, I would propose a hypothetical situation where it could come out differently.

[00:17:54] Speaker 06:
In this case, Mr. Goodman's personal physician declined to put in a medical statement.

[00:18:02] Speaker 06:
If that had not occurred, the doctor had actually put in a medical statement replying upon medical text that reached the exact opposite conclusion as a VA medical examiner.

[00:18:12] Speaker 06:
The adjudicator would have had two different medical examinations reports to look at.

[00:18:16] Speaker 06:
The adjudicator could have found one more persuasive than the other.

[00:18:19] Speaker 06:
The adjudicator could have found them equal.

[00:18:21] Speaker 06:
And then the benefit of the doubt rule could kick in.

[00:18:24] Speaker 06:
But at that point, the adjudicator is making a case by case based determination as to whether or not rheumatoid arthritis.

[00:18:31] Speaker 06:
applies in this situation to be a presumption.

[00:18:34] Speaker 06:
And what's important here is just going quickly.

[00:18:38] Speaker 04:
Let me see if I understand you correctly.

[00:18:41] Speaker 04:
You're saying that the way this rule operates, it's a presumption rule, assuming that someone has an unexplained diagnosis that has no etiology.

[00:18:54] Speaker 04:
And the way you apply that regulation is not necessarily looking at all the interesting

[00:19:00] Speaker 04:
little details of a particular veteran's profile, health profile.

[00:19:05] Speaker 04:
It's more about understanding whether this ailment is akin to other ailments that have an unknown etiology.

[00:19:13] Speaker 06:
That's correct.

[00:19:14] Speaker 04:
And then at the same time, we've got explanation in the regulation history that this should be done on a case-by-case basis.

[00:19:24] Speaker 06:
Correct.

[00:19:25] Speaker 04:
So I guess I'm a little confused because it sounds like

[00:19:31] Speaker 04:
you know, science, you know, is supposed to be, you know, known ideology or known, known ideology, and yet we've created a system here where we're going to have this battle of the scientists on a case-by-case basis for, you know, individual veteran claims.

[00:19:49] Speaker 03:
Yes, Your Honor, and the... Well, it's case-by-case and disease-by-disease, isn't it?

[00:19:54] Speaker 06:
In disease by disease, yes, your honor.

[00:19:56] Speaker 04:
What I'm saying is we could have 100 straight veterans claims for rheumatoid arthritis under this regulation.

[00:20:03] Speaker 04:
And then the way you understand the way the rule to be applied, it just comes down to a battle of the doctors and each of those individual 100 cases on the strength of their reasoning and documentary evidence on why rheumatoid arthritis does or does not have a known etiology.

[00:20:24] Speaker 04:
And you almost completely divorce the actual veteran from each of those 100 claims.

[00:20:30] Speaker 03:
But you're presuming that the veteran has the disease in question.

[00:20:35] Speaker 03:
Is that correct?

[00:20:35] Speaker 06:
In the presumption that the veteran has, excuse me, now this portion of 3.317 addresses diagnosed illnesses.

[00:20:42] Speaker 06:
There is an undiagnosed section that is not relevant towards this appeal.

[00:20:48] Speaker 06:
But that's when the individual has a mesh of different symptoms that no one can diagnose.

[00:20:54] Speaker 06:
What the medically unexplained chronic multi-symptom illnesses are are diagnosable things that the like chronic fatigue syndrome.

[00:21:05] Speaker 06:
We know that when doctors can diagnose somebody with that, but the doctors are confused as to why it occurs and how it will develop in the individual.

[00:21:14] Speaker 06:
These are the ones that are addressed here.

[00:21:16] Speaker 06:
And why is there a presumption here?

[00:21:18] Speaker 06:
It's because these are diseases that the medical

[00:21:23] Speaker 06:
community is trying to understand.

[00:21:25] Speaker 06:
Now, our medical examiner on page 92 looked at not indifferent piece of medical literature.

[00:21:34] Speaker 06:
This week, a different piece of medical literature could come out that discredits all nine of those, that shows that perhaps rheumatoid arthritis has no known etiology, has no known pathophysiology.

[00:21:46] Speaker 06:
A veteran who comes in and claims at that point has this new study

[00:21:51] Speaker 06:
that says that the previous ones are no longer valid.

[00:21:57] Speaker 06:
This allows for flexibility in addressing the presumption with these Gulf War veterans, because it can adjust very quickly to new literature.

[00:22:08] Speaker 06:
That's why we have doctors repeatedly making these determinations, Your Honor, because literature could very much change in these different areas.

[00:22:17] Speaker 06:
So unlike a presumption,

[00:22:19] Speaker 06:
like the Agent Orange presumption, which lists, I think, 14 different diseases straight out.

[00:22:25] Speaker 06:
Those are the 14 different diseases you need to have.

[00:22:28] Speaker 06:
The ALS one is very specific.

[00:22:29] Speaker 06:
You need to have ALS.

[00:22:31] Speaker 06:
This one allows for flexibility for all these veterans who, years later, are developing these meshes of symptoms, these diseases that we're naming, but we don't fully understand.

[00:22:41] Speaker 06:
So, Your Honor, it allows for flexibility in that area.

[00:22:44] Speaker 06:
And to be very clear, Mr. Goodman also brought forth a direct service connection claim

[00:22:50] Speaker 06:
which he does not appeal today, which did look at the different environmental factors that he was exposed to.

[00:22:56] Speaker 06:
I think, Your Honor, that page 114 of the record was what Your Honor was looking for when asking whether or not Mr. Goodman below had a different argument about environmental factors.

[00:23:11] Speaker 06:
The board states, the attorney argues that the medical advisor was wrong to have discussed environmental factors

[00:23:18] Speaker 06:
because 38 CFR 3.317 does not require proof of exposure to toxins.

[00:23:25] Speaker 06:
If the court has no further questions, we respectfully request the court dismiss or affirm, excuse me, dismiss the appeal or affirm decision below.

[00:23:34] Speaker 06:
Thank you.

[00:23:47] Speaker 03:
Mr. Stoltz, this is not a reprimand, just a practice pointer.

[00:23:54] Speaker 03:
When you're sitting at a council table and you disagree with somebody, keep a straight face.

[00:23:58] Speaker 05:
I apologize, Your Honor.

[00:24:00] Speaker 05:
I do apologize.

[00:24:01] Speaker 05:
I was concentrating intently, perhaps too much so on what my colleague was arguing.

[00:24:10] Speaker 05:
One reason that I was concentrating so intently is because this argument has come into such stark focus.

[00:24:17] Speaker 05:
during this oral argument.

[00:24:20] Speaker 05:
I'm understanding the Secretary's point.

[00:24:22] Speaker 05:
He is saying that under 3.317, there can be a disease by disease evaluation.

[00:24:30] Speaker 05:
I do understand the Secretary's point a little bit about there being some flexibility.

[00:24:35] Speaker 05:
And I think that the regulation, in fact, all VA regulations to some extent, allow for some flexibility.

[00:24:41] Speaker 05:
But the way that we are reading the regulatory history

[00:24:46] Speaker 05:
says that, accordingly, currently, VA adjudicators or other officials cannot make that determination in individual cases without a specific determination by the secretary.

[00:25:04] Speaker 05:
It's my understanding that if rheumatoid arthritis, and my understanding, I arrive at my understanding from reading the regulatory history, from reading training letters,

[00:25:17] Speaker 05:
that if rheumatoid arthritis is to be added to 3.317 with the partially explained pathophysiology and ideology, that can be done through notice and comment and by the secretary.

[00:25:31] Speaker 05:
I'm having, frankly, Your Honors, a hard time, and I practice veteran's law, I'm having a hard time understanding how this, and perhaps I'm misunderstanding something, but this is a seismic shift, what the VA is arguing here,

[00:25:46] Speaker 05:
as Judge Chen pointed out, that now under 3.317, it's going to become a battle of experts.

[00:25:55] Speaker 05:
And we have that in this case.

[00:25:56] Speaker 05:
There's expert evidence in here that Rheumatoid Arthritis has no known ideology.

[00:26:02] Speaker 05:
And then there's evidence from this person, who he rightly points out is a very well-qualified person, who says that Rheumatoid Arthritis has a partially explained ideology.

[00:26:14] Speaker 05:
So we do have a battle of experts.

[00:26:16] Speaker 05:
But what we don't have is an examiner examining Mr. Goodman's individual case.

[00:26:23] Speaker 01:
And in every other... What about counsels for the government's argument that separately it was examined on environmental factors?

[00:26:38] Speaker 05:
The fact remains, Your Honor, that the Veterans Court held that an examiner for VA can broadly announce

[00:26:46] Speaker 05:
that pathophysiology and ideology are partially understood.

[00:26:50] Speaker 05:
So there was an analysis, he's right it's not part of this appeal, because there is a legal error at pages two through three of the court's decision.

[00:27:00] Speaker 05:
And I appreciate very much.

[00:27:03] Speaker 04:
Didn't the board consider a lot of different things beyond just the examiner's, medical examiner's report?

[00:27:11] Speaker 04:
The fact that there was no

[00:27:14] Speaker 04:
known issues of rheumatoid arthritis during this person's service and his exit examination, he looked healthy and so nothing had come up until 25 years later when he had some kind of bilateral knee pain.

[00:27:33] Speaker 05:
It did.

[00:27:33] Speaker 05:
It did undertake an analysis and the medical examiner undertook an analysis

[00:27:41] Speaker 05:
But in none of that analysis, that was on a direct basis, which is not subject to this appeal.

[00:27:45] Speaker 05:
In none of us of that analysis did this argument, the one that is spelled out of pages two and three of the court's decision, that this argument of the partially understood etiology and pathophysiology, it's a separate, I'm sorry Judge Shannon, I'm taking a long time to get to the point.

[00:28:02] Speaker 05:
The point is that there were different theories of entitlement.

[00:28:05] Speaker 05:
That's the punchline.

[00:28:06] Speaker 05:
The punchline is yes, the board undertook this analysis.

[00:28:09] Speaker 05:
four different theories of entitlement.

[00:28:12] Speaker 05:
Under this theory of entitlement, which is a very narrowly pled in this Court, I hope the narrow pleading is whether or not this has to be done on a case-by-case evaluation, which is our position, which we support with the regulatory history, with the training letter, with the way, frankly, this is done in BA cases.

[00:28:32] Speaker 04:
This is still being done on a case-by-case basis.

[00:28:35] Speaker 04:
My understanding is that was really the primary thrust of your appeal, of your briefing, is that what is happening here is not something that's being done on a case-by-case basis, and that somehow this medical examiner's report is going to be treated as having some precedential binding effect on the VA going forward for everybody else's claims under this regulation, and the other side saying, well, there's no proof of that.

[00:29:02] Speaker 04:
about the VA that's proclaimed that this decision is a presidential opinion.

[00:29:09] Speaker 04:
So there's nothing that's precluding the continuing case-by-case decision-making process for future veteran claims.

[00:29:19] Speaker 04:
So that's my understanding of what the crux is here.

[00:29:23] Speaker 04:
What is your response to that argument?

[00:29:25] Speaker 05:
My response to that, Your Honor, is that this

[00:29:30] Speaker 05:
I do understand that this is not going to, it's not like VA is going to be able to point to this as precedent per se.

[00:29:37] Speaker 05:
Nevertheless, the Veterans Court in a decision has said that this is how the law reads.

[00:29:43] Speaker 05:
And all these technical arguments are correct.

[00:29:46] Speaker 03:
What do you mean by this?

[00:29:49] Speaker 05:
That an examiner is able to opine broadly on whether rheumatoid arthritis in this case has a partially explained etiology and pathophysiology.

[00:29:58] Speaker 00:
You're not saying that there's a subsequent decision which relies on this earlier decision to make that finding, are you?

[00:30:07] Speaker 00:
You're just talking about the procedure in this case.

[00:30:12] Speaker 05:
I'm talking about the procedure in this case, Judge Stollett, yes.

[00:30:14] Speaker 05:
I suppose really the problem with this is that if the VA wins this case and the Veterans Court's decision is upheld, then a veteran that goes to this doctor

[00:30:28] Speaker 05:
is going to lose every time.

[00:30:30] Speaker 05:
A veteran that goes to a different doctor, as Judge Chen pointed out, that relies on different medical treatises without examining is going to win.

[00:30:38] Speaker 05:
And that can't, and it is our position that that can't be, that it has to be done on a case-by-case basis.

[00:30:44] Speaker 05:
And so we ask the Court to vacate the Veterans Court's decision, remand for the proper legal, excuse me, the proper legal analysis to take place.

[00:30:52] Speaker 03:
Thank you, Your Honors.