[00:00:01] Speaker 03: The next case for argument is 16-2123, Heim versus Shulkin. [00:00:49] Speaker 03: Whenever you're ready, please. [00:00:53] Speaker 05: Please, the court. [00:00:54] Speaker 05: I'm Senator Wisham, representing the veteran Richard B. Hine in this case. [00:01:01] Speaker 05: This case involves a new and expanded interpretation of the statute and regulation regarding clear and unmistakable error. [00:01:12] Speaker 05: It's based on a complete, [00:01:16] Speaker 05: decision of law. [00:01:18] Speaker 05: There's no question or controversy here regarding the facts in this case. [00:01:23] Speaker 05: Facts are clear. [00:01:24] Speaker 05: Everyone agrees on what the facts are. [00:01:25] Speaker 05: So what's the legal issue? [00:01:27] Speaker 05: The legal issue is whether or not the Veterans Court properly interpreted the statute and regulations involving clear and unmistakable error in a previous decision. [00:01:40] Speaker 01: And do we have to do that in view of the law as it existed in 1983? [00:01:48] Speaker 05: Even in 1983, decisions had to be made based on evidence. [00:01:55] Speaker 01: And in this case, the law permitted a medical doctor to sit on a panel and to render judgment. [00:02:04] Speaker 05: The law permitted that that is correct. [00:02:08] Speaker 05: But as you will notice in this case, the Veterans Court specifically said that they could not consider the decision itself [00:02:18] Speaker 05: to be medical evidence against the claim. [00:02:22] Speaker 01: I think this is where, to me, this is where the point of the case lies. [00:02:29] Speaker 01: Is the belief of that medical doctor back in 1983, is that an exercise of the person's judgment as a panelist that naturally involves the background of his medical expertise, which is permitted at that point, [00:02:46] Speaker 01: Or is that the introduction to new evidence? [00:02:50] Speaker 05: Well, if you're going to consider this to be a medical opinion, which can... No, no. [00:02:57] Speaker 05: Maybe I'm misunderstanding the question. [00:02:58] Speaker 01: The judgment as a panel member that's rendered by an individual that has a background in medical sciences. [00:03:08] Speaker 05: Okay. [00:03:09] Speaker 05: Is that evidence? [00:03:11] Speaker 01: Is that the question? [00:03:12] Speaker 01: That's what I'm asking. [00:03:13] Speaker 01: If that person looks at evidence and says, [00:03:15] Speaker 01: I don't find this to be credible. [00:03:18] Speaker 01: Am I now to say that that judgment as to the credibility of evidence or the probative value of evidence, whether that's a judgment or is that new evidence? [00:03:30] Speaker 01: I think you're arguing it's new evidence. [00:03:34] Speaker 05: Well, the argument is, first of all, it could be considered new evidence. [00:03:39] Speaker 05: On the other hand, in 1983, the medical doctor could have said, you know what? [00:03:44] Speaker 05: I've looked at this nexus opinion, and I think it's hokum. [00:03:47] Speaker 05: I don't believe it's credible at all, and therefore we're going to deny. [00:03:51] Speaker 05: That didn't happen here, though. [00:03:55] Speaker 02: Let me just ask you one question. [00:03:57] Speaker 02: Certainly. [00:03:57] Speaker 02: How much weight do you assign to the factual evidence that was in the record at the time of the BBA decision we're talking about, that your client had full range of motion on his right side? [00:04:13] Speaker 02: I attribute no importance to that evidence. [00:04:17] Speaker 02: Well, what happens if someone, especially this doctor who was on the panel, assigned weight to that evidence? [00:04:27] Speaker 05: Well, you have to first of all look at whether that is appropriate, even at the time, whether that was evidence. [00:04:34] Speaker 05: And if you'll notice, in the Veterans Court decision, they did not rely on that. [00:04:41] Speaker 05: And that's because of the one that we're on appeal right here. [00:04:47] Speaker 02: They refer to the fact that there was the evidence of his full range of motion. [00:04:53] Speaker 05: Well, they do not rely on that as being evidence against it. [00:04:56] Speaker 05: How do you know? [00:04:59] Speaker 02: I'm sorry? [00:05:00] Speaker 02: How do you know? [00:05:01] Speaker 02: Let's look at the decision in front of us insofar as it deals with the discussion of this. [00:05:10] Speaker 02: There's no full range of motion. [00:05:14] Speaker 05: Right. [00:05:15] Speaker 05: We're talking about the veterans court decision. [00:05:18] Speaker 05: Yeah. [00:05:18] Speaker 05: CAVC. [00:05:18] Speaker 05: Right. [00:05:35] Speaker 05: And it does not rely upon that. [00:05:39] Speaker 05: If you look at page 9 in the joint appendix here, it simply says that it's not undebatable that the board found the October 82 opinion, that would be Dr. Palmer's nexus opinion, to be deficient in some way. [00:06:09] Speaker 05: That's all it says. [00:06:10] Speaker 05: Nowhere here does it say that that other opinion. [00:06:14] Speaker 05: And I presume that that's because there is precedent in the Bouton decision. [00:06:20] Speaker 05: And in the Bouton decision, a panel, which was also a panel decision, so it can't be overruled by another panel. [00:06:27] Speaker 01: I understand your position. [00:06:29] Speaker 01: And I'm greatly disturbed that we're looking at a decision that [00:06:37] Speaker 01: has this big question mark over it. [00:06:40] Speaker 01: The problem is that the law at that time permitted that question. [00:06:47] Speaker 01: It did not obligate, as it does now, for panel members to articulate a well-reasoned analysis of their decision. [00:06:57] Speaker 01: So they left us with a big question mark. [00:07:00] Speaker 01: The problem is that the law at that time permitted them to do it. [00:07:04] Speaker 01: Am I right on that? [00:07:06] Speaker 05: They are allowed to use medical judgment, or were allowed. [00:07:11] Speaker 01: No, I'm talking about they're not even obligated at that time. [00:07:16] Speaker 01: They were not obligated to actually even write out the analysis of their decisions. [00:07:23] Speaker 05: And that's why we have to look at what evidence was there to support that decision. [00:07:28] Speaker 05: Because if you say that the board had no obligation in any way [00:07:36] Speaker 05: to base the decision on the evidence, then there can never be clear and unmistakable error. [00:07:44] Speaker 05: Realistically, if you don't require there to be some sort of evidence in the record at the time, then you're saying the fact that they denied it is good enough. [00:07:55] Speaker 05: The fact of a denial is itself dispositive. [00:07:59] Speaker 02: But there was evidence of the full range of motion and the right [00:08:04] Speaker 02: side was from 79, 88, 182 was in the record. [00:08:09] Speaker 02: That's correct. [00:08:10] Speaker 05: But if you look at the Bouton decision of the Veterans Court, it says that a decision that is not or a medical opinion that is not pertinent to the claim cannot be used. [00:08:22] Speaker 05: Now, in this case, that medical opinion never spoke about any connection between the shoulder and the hip. [00:08:32] Speaker 02: Also, if you also look... If you look at the decision that we're talking about, the BBAA decision in 1983. [00:08:39] Speaker 02: Right. [00:08:40] Speaker 02: So when you finish at 33, first there is a fact finding at the end of that decision, fact finding 2, saying his left hip recidus is not approximately due to the result of the right shoulder injury. [00:08:54] Speaker 02: So that's the fact finding that undoes your case. [00:08:59] Speaker 02: Now, the question then is, well, [00:09:02] Speaker 02: Are we reviewing that fact-finding? [00:09:04] Speaker 02: That fact-finding was made, as Judge Raina's been pointing out, and it's made by that three-person board. [00:09:11] Speaker 02: And the rationale, the only rationale I could find, because that board also had in front of it the letter from Dr. Palmer's name, Dr. Palmer, right? [00:09:23] Speaker 02: So how could that board have disagreed with Dr. Palmer? [00:09:31] Speaker 02: I'm saying to myself, how could they? [00:09:32] Speaker 02: Because Dr. Palmer said, your problem, Mr. Heim, is that somebody instructed you not to use your right hand, but use your left hand. [00:09:44] Speaker 02: We don't know who told him that. [00:09:46] Speaker 05: Well, it was the V.A. [00:09:47] Speaker 05: rehab. [00:09:47] Speaker 02: Well, we don't know. [00:09:48] Speaker 02: That's not in the record. [00:09:49] Speaker 02: What's in the record is that somebody told Dr. Heim, don't use your right hand, use your left hand. [00:09:57] Speaker 02: And Dr. Palmer says, well, if it was by not using your left hand, which you weren't accustomed to, caused this just stuff on the left side. [00:10:08] Speaker 02: So I'm looking at the fact finding in front of that 1982-83 board that says he had full range of motion in his right shoulder. [00:10:18] Speaker 02: So somebody looked at that and said, well, if he had full range of motion, whoever told him to use his left hand made a mistake. [00:10:25] Speaker 02: He didn't need to use his left hand. [00:10:28] Speaker 02: So yes, indeed, the use of his left hand was what resulted in his left hip injury, but it wasn't as a result of the shoulder injury. [00:10:37] Speaker 02: It's as a result of somebody who told him, well, don't use your right hand. [00:10:43] Speaker 02: And that that's what was sitting there in front of this three-person person, including what Judge Raina pointed out. [00:10:48] Speaker 02: There was a doctor on that panel. [00:10:50] Speaker 02: Right. [00:10:51] Speaker 02: And I can't. [00:10:53] Speaker 02: I mean, my job is to try to figure out, I think, is to figure out whether that fact-finding number two had any basis, any factual basis. [00:11:02] Speaker 02: Right. [00:11:02] Speaker 02: If it had a factual basis, game's over, because we can't review what you understand. [00:11:09] Speaker 02: So the question is, [00:11:11] Speaker 02: was there a factual basis to support fact-finding number two? [00:11:16] Speaker 02: And as I read the opinion of the BVA, the only possible support for that when you are putting in the gamish Dr. what's-his-name's, pardon me, I should know by heart, Dr. Palmer. [00:11:32] Speaker 02: So you have Dr. Palmer on the one hand in the fact scale, and you have the [00:11:38] Speaker 02: well-established medical record in front of the BVA that his right side works just fine. [00:11:46] Speaker 02: And Dr. Palmer's opinion cannot lie comfortably against a fact showing that the right hand side works just fine. [00:11:55] Speaker 02: Because if the right hand works fine, why would you shift to the left? [00:12:00] Speaker 05: Well, first of all, again, I come back to the fact that I don't. [00:12:09] Speaker 02: I'm not trying to be adverse to your client. [00:12:12] Speaker 02: I mean, I'm sensitive to the question that a cue is an error in law and that you win if you win on the cue. [00:12:20] Speaker 02: But it's hard for me to see how you can win when the facts that were in front of this deciding body, which you believe decided without any basis, because you're giving Dr. Palmer all the weight [00:12:37] Speaker 02: on the back scale. [00:12:40] Speaker 02: And you're not giving any credit to the three years worth of medical exams. [00:12:45] Speaker 02: He was in the VA Diagnostic Center like three years in a row saying, my right side bothers me. [00:12:53] Speaker 02: And he was getting full medical exams. [00:12:54] Speaker 02: And they said, you have no rings of motion. [00:12:57] Speaker 05: Well, what Dr. Palmer actually said was that he was instructed to do this to spare further injury to the right shoulder. [00:13:07] Speaker 05: So that is a slightly different thing than just... Is that what Dr. Palmer... Mr. Heim was instructed to do certain activities and motions left-handed in order to avoid pain and to not accelerate deterioration in the child. [00:13:26] Speaker 02: But then there's a disagreement that somebody, as Judge Green was pointing out, and we assume it was the doctor just because they would know this stuff better than anybody else, [00:13:37] Speaker 02: Somebody at that three-person board meeting in 283 put up their hand and said, I'm sorry, Dr. Palmer isn't right. [00:13:49] Speaker 02: And we barred by statute from getting into that argument. [00:13:54] Speaker 05: In that case, Your Honor, there's no such thing as clear and unmistakable error. [00:14:00] Speaker 02: Well, sure there is. [00:14:00] Speaker 02: Because not really. [00:14:02] Speaker 02: If there had been nothing in this record [00:14:04] Speaker 02: about his having full range of motion of the right shoulder. [00:14:09] Speaker 02: There's nothing in that effect at all. [00:14:12] Speaker 02: If the only thing in the record here was Dr. Palmer's letter, then I would agree with you right away that the BVA decision was Q because there's no way he could lose. [00:14:27] Speaker 02: But there is a way he could lose once you put into the record, I guess, three medical exams [00:14:34] Speaker 02: in a row, saying he had full range of motion of his right shoulder. [00:14:40] Speaker 05: Well, one problem we have there is the earlier CAVC decision, which says you can't consider it negative evidence if it did not pertain to the issue. [00:14:53] Speaker 05: There's nothing in those medical records that say his hip bursitis was not caused. [00:15:02] Speaker 05: That's a problem, and that is presumably why the Veterans Court in this case did not rely on that medical evidence. [00:15:08] Speaker 05: What the Veterans Court decision said, and that is what is on review here, was that they could not rule out the possibility that maybe the board disbelieved the positive evidence. [00:15:23] Speaker 01: What if the board in 1983 had just said nothing at all, just said denied? [00:15:30] Speaker 01: Would that be clear and unmistakable error? [00:15:32] Speaker 05: It should be, unless you're going to move to a standard that the board didn't have to explain itself. [00:15:40] Speaker 05: So therefore, anything goes. [00:15:42] Speaker 01: But in 83, they didn't. [00:15:45] Speaker 05: But Congress still enacted a statute about clear and unmistakable error. [00:15:50] Speaker 05: And if you're going to say that prior to the Judicial Review Act and so forth, if you're going to say that prior to that, [00:16:00] Speaker 05: they didn't have to say, and the very fact of the denial becomes evidence, then you've got no clear and unmistakable error. [00:16:08] Speaker 05: You also have a due process problem here. [00:16:10] Speaker 05: And I realize I'm out of time. [00:16:12] Speaker 05: Yes. [00:16:13] Speaker 03: Why don't we hear from the government where we still have two minutes for rebuttal. [00:16:15] Speaker 03: OK, fine. [00:16:15] Speaker 05: We'll talk about due process on rebuttal. [00:16:17] Speaker 05: Thank you. [00:16:27] Speaker 03: Mr. Evans? [00:16:29] Speaker 00: May I please the court? [00:16:31] Speaker 00: This is not a case where there is only evidence on one side. [00:16:35] Speaker 00: The evidence of record went in both directions. [00:16:38] Speaker 00: There's only one doctor's opinion, correct? [00:16:42] Speaker 00: There is a doctor's opinion on connection, Your Honor. [00:16:46] Speaker 00: But on the record? [00:16:48] Speaker 01: Yes, Your Honor. [00:16:51] Speaker 01: Okay. [00:16:52] Speaker 01: Are you saying that the judgment or the decision of the medical doctor on the panel, that that was evidence? [00:16:59] Speaker 00: No, Your Honor. [00:17:00] Speaker 00: Okay, good. [00:17:01] Speaker 00: No, I was just saying there are these three assessments that I don't believe were by the doctors. [00:17:07] Speaker 02: Aren't you talking about the names associated with what? [00:17:09] Speaker 02: So we know what you're talking about. [00:17:10] Speaker 02: You're talking about Dr. Palmer on the one hand. [00:17:13] Speaker 00: Yes, sir. [00:17:13] Speaker 02: That's data point number one. [00:17:15] Speaker 00: Yes. [00:17:16] Speaker 00: And there is a 1982 evaluation that you can see in the appendix at pages 63 to 66. [00:17:29] Speaker 00: And I apologize, I can't read the name of the examiner, but it can be seen on Appendix 62. [00:17:36] Speaker 00: Then there is also a rating, and that's the one that says what the 1983 board finds to be essentially full range of motion in the shoulder. [00:17:49] Speaker 01: I'm looking at Appendix 63. [00:17:52] Speaker 01: Is that what you said? [00:17:53] Speaker 00: Starting at 62, and it carries on through appendix 66 with the diagram of the shoulder use and flexes and directions. [00:18:08] Speaker 00: That is the evaluation that is specifically referenced in finding five of the 1983 board, and that they refer to when they're talking about and understand Dr. Palmer. [00:18:20] Speaker 00: They don't say Dr. Palmer, but they understand Dr. Palmer's opinion is of connection. [00:18:25] Speaker 00: But there's this almost full range of motion as shown in this evaluation. [00:18:31] Speaker 02: Can you look at appendix 41? [00:18:35] Speaker 00: Yes, appendix 41 also is, that's the 1979 evaluation. [00:18:41] Speaker 00: And then you had asked me earlier on for all three. [00:18:44] Speaker 01: So what are you saying, that these [00:18:49] Speaker 01: these documents are counter or in opposition to the doctor's opinion that's on the record? [00:18:59] Speaker 00: What I'm saying is in 1983 the board very specifically stated they understand the claim was of a connection. [00:19:06] Speaker 00: However, the records show almost full range of motion. [00:19:10] Speaker 00: The 1983 board says we understand [00:19:13] Speaker 00: We've taken into account the 1982 veteran administration physician's medical statement. [00:19:18] Speaker 00: That's Dr. Palmer. [00:19:19] Speaker 01: Is this a new argument you're raising? [00:19:22] Speaker 00: I don't believe so. [00:19:23] Speaker 00: No, I believe this is the argument we're making, that what the board in 1983 did was evaluate the evidence. [00:19:30] Speaker 01: I thought everyone had agreed that Dr. Palmer was the only witness or the only medical doctor that spoke on service connection of the hip bursitis. [00:19:42] Speaker 00: Yes, Your Honor. [00:19:43] Speaker 02: If I've suggested that there's any opinion as to what... You've been referring, I believe, to the evidence that's clearly in the record that Mr. Heim had full range of motion on his right side, correct? [00:19:56] Speaker 04: Yes, sir. [00:19:57] Speaker 02: And you explained to us how you're getting that on the scale so that it can be measured in context with Dr. Palmer's opinion. [00:20:12] Speaker 00: Yes. [00:20:13] Speaker 02: Why is the range of motion evidence, which is medical evidence, pertinent? [00:20:21] Speaker 00: It's pertinent because the 1983 board evaluated that evidence, weighted against Dr. Palmer's opinion, and found that the weight of the evidence showed no connection. [00:20:31] Speaker 02: How would they have weighted that? [00:20:33] Speaker 00: Well, Your Honor pointed out one possibility, which was sort of a causation concept. [00:20:38] Speaker 00: Another concept, which I think is what the Veterans Court was suggesting, [00:20:42] Speaker 00: is that the medical member of the panel, as a judgment, not as evidence, but as a judgment, as any tribunal would view the evidence before him. [00:20:52] Speaker 01: How do you know that's what happened? [00:20:55] Speaker 01: How do you know that it was the panel member, who's a doctor, that it was his judgment that swayed the decision here? [00:21:04] Speaker 01: What if he slept during this whole thing? [00:21:07] Speaker 01: And one of the lawyers, because the other two panelists were lawyers, and one of the other lawyers say, well, in my experience, here's what I think. [00:21:14] Speaker 01: And that's how they decided. [00:21:15] Speaker 01: We don't know, do we? [00:21:17] Speaker 00: We do not have that level of safety. [00:21:19] Speaker 01: So how can you argue that? [00:21:20] Speaker 01: I mean, we don't know how that decision was reached. [00:21:23] Speaker 01: And that's the problem here. [00:21:25] Speaker 00: Well, fundamentally, the regulations in place when this decision was reached in 1983 didn't require that level of safety. [00:21:34] Speaker 01: Yeah, I understand that. [00:21:35] Speaker 01: And that's the problem here. [00:21:36] Speaker 01: It didn't require it. [00:21:37] Speaker 01: So we've got a big question mark here. [00:21:39] Speaker 01: We've got due process issues. [00:21:41] Speaker 01: But apparently, the law allowed that at the time. [00:21:45] Speaker 01: But I just don't want to hear any arguments that it was a medical doctor's decision that swayed the panel, or it was a learned medical opinion that cast credibility and doubt on the existing, on Dr. Palmer's opinion that was on the record, because we just don't know. [00:22:06] Speaker 00: Well, respectfully, Your Honor, there are two points there. [00:22:08] Speaker 00: The first is the standard here is clear and unmistakable error. [00:22:12] Speaker 00: If the answer is it could be, it might not, then the answer is there's not clear and unmistakable error. [00:22:19] Speaker 00: The second point I would raise is that this court in the Kaplan decision said that a pre-Colvin board examining a claim could rely on the medical doctor on that board, his determination that the evidence was not probative. [00:22:36] Speaker 00: that would be, that would not be clear and unmistakable error. [00:22:39] Speaker 02: So... Right, but we don't, our problem is, Judge Raina pointed out, we don't know what happened. [00:22:45] Speaker 02: And I would have thought from your perspective, the situation is such that when the BVA met back in the 80s, it had a record in front of it that had an opinion from Dr. Palmer. [00:22:56] Speaker 02: It also had a record in front of it that included that the veteran [00:23:01] Speaker 02: had full range of motion of his right arm, which would suggest that he didn't have any problems with using the right arm. [00:23:08] Speaker 02: And so those two data points are in the record. [00:23:12] Speaker 02: And you would be arguing, I think, in order for us, you have to decide the factual question of how much weight you give to the right arm freedom of motion compared to [00:23:25] Speaker 02: the other doctor's view, and that is beyond our jurisdiction to look at that mixing of those facts. [00:23:32] Speaker 00: I would agree with that, Your Honor, yes. [00:23:34] Speaker 02: And to say we don't... If there was no evidence or record at all that suggested that his right arm had full range of motion, then I think your adversary would have a very, very strong cue case, right, because the only thing in the record points in her direction. [00:23:53] Speaker 00: The Bhutan case, which they rely on, actually deals with an issue where there's evidence of record that the board affirmatively ignores. [00:24:02] Speaker 00: That would be Q. Yes. [00:24:04] Speaker 00: If the evidence says this, in that case I believe it was a claim for connection on psychological injury, and the review said there's no evidence of a psychological injury, that's Q, ignoring it. [00:24:14] Speaker 00: Now, the Kaplan case said that if the evidence says one thing, but [00:24:21] Speaker 00: In a pre-calling decision, the medical doctor says, I don't find it probative. [00:24:27] Speaker 00: That is not Q. That's not this case, though, because there's evidence on both sides. [00:24:31] Speaker 00: And again, the board in 1983. [00:24:32] Speaker 02: It's also not this case because we do not know whether or not it was the medical doctor that someone discounted [00:24:42] Speaker 02: Dr. Palmer and I can't goes without saying yeah, who did it? [00:24:47] Speaker 02: I mean it could have been the tort lawyer Hypothetical lawyer on the board well it could have But it doesn't from your perspective is make any difference because so long as there was a data pointer that could have been used To balance against dr. Palmer, then it's a fact question [00:25:06] Speaker 00: It's a fact question. [00:25:07] Speaker 00: And the decision specifically says, we have considered those data points, and we weigh the evidence this way. [00:25:13] Speaker 00: So we think that's what they said. [00:25:15] Speaker 00: Which is exactly what they said. [00:25:16] Speaker 00: And we think that's dispositive, Your Honor. [00:25:18] Speaker 00: We think, frankly, what Mr. Heim is seeking is really to reweigh the evidence, which this court shouldn't do. [00:25:26] Speaker 01: What if what happened is instead of, as was permitted under the law in 83, the way I see it, [00:25:35] Speaker 01: where these panelists or a doctor on a panel could render a judgment on the basis of the credibility, the probative, and the weight of the evidence before them. [00:25:52] Speaker 01: It's like a doctor says, well, I don't find Dr. Palmer's opinion credible, because it's kind of iffy there. [00:26:04] Speaker 01: the harm is caused to one shoulder by the exercise of the other. [00:26:09] Speaker 01: But what if he would have said something like, well, it's my opinion, based on my review of the entire records, my medical opinion, that Dr. Palmer is incorrect. [00:26:21] Speaker 01: And here's how I think we should find based on my opinion, not the probative value of the weight or the credibility of Dr. Palmer, [00:26:32] Speaker 01: But if he says, this is my opinion, wouldn't that be new evidence being introduced into the proceeding? [00:26:42] Speaker 00: I would suggest that if the statement from that board was, we've looked at this and we disagree with it, that's not new evidence. [00:26:51] Speaker 00: That's what the Kaplan Act says. [00:26:53] Speaker 01: That's not what I asked, though. [00:26:54] Speaker 00: Well, in all fairness, if what they said was, we understand there's that opinion. [00:26:59] Speaker 01: But if the opinion would have said, [00:27:02] Speaker 01: We find against the veteran on the basis of the medical opinion rendered by her learned brother on the panel. [00:27:13] Speaker 00: I suppose you would then get into the question that the Veterans Court here got into of [00:27:18] Speaker 00: Assuming that that's evidence. [00:27:21] Speaker 00: That's what I'm asking. [00:27:23] Speaker 00: That would be evidence, wouldn't it? [00:27:24] Speaker 00: But it wouldn't be prejudicial, because it would be them calling something evidence when they... Well, if it is evidence, wouldn't it be prejudicial? [00:27:32] Speaker 01: Because the veteran was never given a chance to confront that evidence, call his own witnesses, doesn't even know that new evidence has been introduced. [00:27:42] Speaker 00: Well, if I may, let me take your hypothetical one step further. [00:27:45] Speaker 00: Let's assume the board's doctor says, I am a doctor, and I am putting in evidence. [00:27:49] Speaker 00: So it's not even a question of, it's my opinion, it's my judgment. [00:27:52] Speaker 00: For instance, my evidence is this, and therefore, based on that, you rule. [00:27:57] Speaker 00: Then it's clearly evidence. [00:27:59] Speaker 01: And that's Q. That's clear and non-mistakable. [00:28:02] Speaker 01: We're in a clear and non-mistakable error situation. [00:28:06] Speaker 01: If it's prejudicial. [00:28:09] Speaker 00: If it's prejudicial. [00:28:10] Speaker 00: If it's prejudicial, which is what the Veterans Court said dealing with the 2014 decision. [00:28:14] Speaker 00: They say, OK, the 2014 decision called it evidence. [00:28:17] Speaker 00: Let's be clear. [00:28:18] Speaker 01: It shouldn't have been called evidence. [00:28:19] Speaker 01: Let's stop there. [00:28:21] Speaker 01: Just to build on your hypothetical, the veteran at that point doesn't know that this has happened, doesn't know that there's been new evidence introduced, never gets to confront the doctor on the panel who rendered this evidence, doesn't get to introduce his own [00:28:39] Speaker 00: Witnesses or evidence and basically what I'm describing is the due process safeguards Okay, that's not that would not be prejudicial Well, if the issue is that they use the word evidence where they should have used the word in our judgment Then there's no prejudice because what they've done is they've chosen the wrong word for something that they should have called judgment Which is what the Veterans Court here says, but she that's the point. [00:29:05] Speaker 01: We don't know what happened. [00:29:07] Speaker 01: We don't know what happened [00:29:09] Speaker 01: I mean, my scenario is just as viable as the one that's presented in the opinion. [00:29:15] Speaker 00: But unless under either scenario it's prejudicial, then it's not Q. Even if what the 2014 court board said was correct, that the 1983 board actually viewed this as evidence as opposed to viewing it as its judgment, there's still no prejudice because they should have [00:29:37] Speaker 00: viewed it as their medical judgment, but they'd still get to the same place. [00:29:41] Speaker 00: It's a term that doesn't make an actual distinction. [00:29:44] Speaker 00: There's evidence of record here. [00:29:45] Speaker 00: They're evaluating. [00:29:46] Speaker 00: I mean, as we read the opinion, they're weighing the evidence. [00:29:49] Speaker 02: Well, is that true? [00:29:51] Speaker 02: Judge Raina's hypothetical was based on some medical facts that were deduced by the one medical doctor on the BVA on his own. [00:30:03] Speaker 02: Nothing that's in the record. [00:30:05] Speaker 02: Veterans never heard of this before. [00:30:07] Speaker 02: And yet he'll end up being taxed with it in the form of the judgment, as you say. [00:30:12] Speaker 02: The veterans still come jumping up and down and complaining, well, I never got a chance to face those facts. [00:30:18] Speaker 02: I mean, nobody ever told me that I had this or that or the other thing. [00:30:25] Speaker 02: You've got a due process problem with the factual basis. [00:30:29] Speaker 01: I agree with that. [00:30:31] Speaker 01: Even if it's harmless error, you can't waive due process. [00:30:38] Speaker 00: No, I agree with that as well. [00:30:40] Speaker 00: But the point that the Veterans Court was saying is, assuming that they said it was evidence, they'd get to the same place anyway. [00:30:48] Speaker 00: The corrective measure, if this was evidence, as we point out, would have been to file a motion for reconsideration or be here raising it as Q. But fundamentally, the point is, the board's opinion in 1983 isn't evidence. [00:31:02] Speaker 00: It's judgment. [00:31:03] Speaker 00: It's what it's supposed to do. [00:31:04] Speaker 00: It's supposed to weigh the evidence in front of it. [00:31:06] Speaker 00: which is what it did based on its statement, and come to a conclusion, which is what it did, that the overall evidence, taking these shoulder has almost full range of motion versus this opinion from Dr. Palmer, does not show connection. [00:31:21] Speaker 00: For those reasons, Your Honors, first we think this matter should not be heard because the jurisdiction should be dismissed. [00:31:27] Speaker 00: But to the extent the court wants to view the merits, the opinion below does not show clear and unmistakable error and should be affirmed. [00:31:34] Speaker 02: Thank you. [00:31:35] Speaker 02: Going back to the decision of the CABC in this case, it was aware of the almost full range of motion evidence in the record, wasn't it? [00:31:45] Speaker 02: It cited that at page two in its opinion. [00:31:48] Speaker 00: It did. [00:31:49] Speaker 00: And then at pages eight to nine, it seems to draw a distinction not with a great deal of clarity, but it talks about [00:31:59] Speaker 00: that the board did not weigh the evidence or make determinations as to its probative value. [00:32:04] Speaker 00: So there's at least a suggestion there that the Veterans Court was looking at both this record evidence that it cites in 1982 and separately the question of the judgment. [00:32:18] Speaker 03: Thank you. [00:32:34] Speaker 05: We've already discussed this whole issue of whether that's evidence or not. [00:32:40] Speaker 05: And I would just, again, direct the court to the Bouton decision, which specifically said that medical evidence that does not weigh on the particular issue cannot be considered negative evidence. [00:32:54] Speaker 05: Beyond that, though, I would like to get to this due process question. [00:32:59] Speaker 05: And even more than the hypothetical that Judge Reina raised, [00:33:04] Speaker 05: We don't even have here a situation where someone at the board possibly said, I don't believe this evidence. [00:33:12] Speaker 05: My medical judgment says it's false. [00:33:15] Speaker 05: In this case, there's nothing. [00:33:19] Speaker 05: And all that the Veterans Court decision said is, well, we can't rule out the possibility that maybe they disbelieve to the positive evidence. [00:33:27] Speaker 05: Now, in that situation, the actual situation before us, Mr. Heim has [00:33:35] Speaker 05: There's no due process here whatsoever. [00:33:38] Speaker 05: He doesn't even know why the decision, not only can he not counter this medical judgment, he doesn't even know that such a thing was made. [00:33:48] Speaker 05: At that time, there were only, and the dissent in the Veterans Court decision goes in. [00:33:53] Speaker 02: There was a fact finding made by the three-person board in the 80s. [00:33:59] Speaker 02: They didn't think there was any connection between his right side and his left side injury. [00:34:04] Speaker 02: That's fact finding number two. [00:34:07] Speaker 02: So he knows that decision was made. [00:34:12] Speaker 05: But he doesn't know what that is based on. [00:34:14] Speaker 05: And under the rules for filing a motion for reconsideration, you have to very specifically say what you felt the error was that they made. [00:34:24] Speaker 05: And it's not good enough to simply say, I disagree with the fact finding. [00:34:29] Speaker 05: He would have to be able to say, well, I disagree with this because [00:34:34] Speaker 05: the board member said, whatever, and have the opportunity to present evidence. [00:34:39] Speaker 02: He could have objected to that. [00:34:41] Speaker 02: He could have said, wait a second. [00:34:43] Speaker 02: How can you make that fact-finding too in the light of the presence of Dr. Palmer's statement? [00:34:52] Speaker 02: He could have gone direct on appeal on that and said, excuse me. [00:34:55] Speaker 05: No, you couldn't directly appeal because there was no appeal at the time. [00:34:59] Speaker 05: Well, I understand that. [00:35:01] Speaker 05: If there were a direct appeal in this case, I mean, if this happened today, we would certainly appeal it. [00:35:07] Speaker 05: And I have a feeling it would be reversed. [00:35:10] Speaker 02: But that's not our problem. [00:35:12] Speaker 02: Is Q a cure for the absence of an appeal right in the 80s? [00:35:18] Speaker 05: In a sense it is, because it is a way to challenge those decisions, which could not be changed directly. [00:35:24] Speaker 05: It's going to open up all of the old decisions then? [00:35:28] Speaker 05: Well, Q is really the only way to challenge the old decisions. [00:35:32] Speaker 05: But in this case, the veteran is deprived of due process if he can be denied based on an unstated, unspoken disbelief based on- Not unstated. [00:35:45] Speaker 05: I mean, the BVA decision. [00:35:47] Speaker 05: Well, they do not say that Dr. Palmer's evidence was- No, but it sets up. [00:35:55] Speaker 02: It acknowledges Dr. Palmer's statement. [00:35:58] Speaker 02: Dr. Palmer's statement is 100% going to the bank. [00:36:03] Speaker 02: It says your left side deficiency was caused by your right side deficiency. [00:36:11] Speaker 05: And so... Well, it's caused by the treatment for the right side. [00:36:14] Speaker 02: Yes, but you have this problem on your left side because of what the right side was. [00:36:19] Speaker 02: Dr. Palmer's clear about that. [00:36:21] Speaker 02: Right. [00:36:22] Speaker 02: And so he's going to prevail. [00:36:25] Speaker 02: on his claim for benefits for a left-side deficiency unless something comes up to get in the way. [00:36:34] Speaker 02: Right? [00:36:34] Speaker 02: Right. [00:36:35] Speaker 02: Right. [00:36:36] Speaker 02: And only something that can come up to get in the way that I could see or anybody else could see in that 82 BVA decision was the established fact that he had full range of motion on the right-hand side. [00:36:50] Speaker 02: And then you say, well, what does that have to do with the price of tea in China? [00:36:53] Speaker 02: I don't know. [00:36:54] Speaker 02: I don't know, but could it have something to do with the price of tea in China? [00:36:58] Speaker 02: Yeah. [00:37:00] Speaker 02: In somebody's mind, the fact-finder, these three people. [00:37:04] Speaker 02: Lay aside whether it was the doctor or not, these three people. [00:37:07] Speaker 02: Because these three people decided that Dr. Palmer wasn't sufficient to give him certain connection. [00:37:14] Speaker 02: That's fact-finding too. [00:37:20] Speaker 02: I don't see why we should be put in the position of trying to go back and decide whether that was factually mistaken for them to enter fact-finding too, as opposed to an opposite fact-finding based on Dr. Palmer. [00:37:39] Speaker 05: I'm out of time, Joanna, and just to respond to that. [00:37:42] Speaker 05: Just very briefly is you're not being asked to do that. [00:37:46] Speaker 05: What you're being asked to do is look at [00:37:48] Speaker 05: the presidential decision of the Veterans Court, which says, it is enough to say, we can't rule out the possibility that maybe somebody disbelieved the evidence. [00:38:01] Speaker 05: That's what the Veterans Court says. [00:38:04] Speaker 05: Those precise words? [00:38:07] Speaker 05: Basically, yes. [00:38:09] Speaker 02: Show me. [00:38:09] Speaker 02: Let's look at those words. [00:38:16] Speaker 05: You take a look at page 9. [00:38:19] Speaker 05: of the joint appendix. [00:38:27] Speaker 05: It is not undebatable that the board found the 1982 opinion to be deficient in some way. [00:38:34] Speaker 05: And then when we look down to the footnote, to be clear, the court does not conclude that the board found it to be deficient. [00:38:41] Speaker 05: Rather, the court cannot rule out the possibility that the board did so. [00:38:47] Speaker 05: Now, if in fact the rule of law on CUE is that any time a reviewing court cannot rule out the possibility that maybe somebody didn't believe the evidence, how can you ever have CUE? [00:39:03] Speaker 05: The very fact that they denied the claim, would the evidence say, well, somebody must have just believed it. [00:39:11] Speaker 05: So there you go. [00:39:12] Speaker 05: They denied it. [00:39:13] Speaker 05: And that leaves it. [00:39:14] Speaker 02: What you require is that you show that you would win. [00:39:16] Speaker 02: It has to be, the error has to be outcome dispositive, not possibly outcome dispositive, outcome dispositive. [00:39:23] Speaker 02: Right, but the court is. [00:39:24] Speaker 02: On the merits of the underlying claim. [00:39:26] Speaker 05: But the court is saying that the reason they find this to be not dispositive is because maybe the board in 1983 disbelieved the evidence. [00:39:38] Speaker 05: And that's what the court here says. [00:39:40] Speaker 05: And that's the rule. [00:39:42] Speaker 05: will stand if this case stands. [00:39:46] Speaker 03: OK. [00:39:46] Speaker 03: Thank you. [00:39:47] Speaker 03: Thank you. [00:39:47] Speaker 03: We thank both sides of the cases.