[00:00:06] Speaker 05:
The next case before the court is Hornbeek v. McDonald, case number 161682, an appeal from the Court of Veterans Appeals.

[00:00:39] Speaker 05:
All right, five minutes for rebuttal.

[00:00:41] Speaker 05:
Yes, please.

[00:00:43] Speaker 05:
Ready?

[00:00:45] Speaker 05:
Okay, you may begin.

[00:00:46] Speaker 04:
So please, the court, my name is Sandra Booth.

[00:00:48] Speaker 04:
I'm appearing on behalf of the appellant, Norma Hornby.

[00:00:52] Speaker 04:
In the court below, Mrs. Hornby challenged the legal sufficiency of the evidence that the board relied upon in finding that her husband was not credible about his travel to Nagasaki.

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In particular, she challenged the board's reliance on

[00:01:08] Speaker 04:
on absence of evidence in the records without the foundation to show that that event would normally have been recorded had it actually occurred.

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The court declined to review that, declined to apply that rule of law.

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That brings that issue squarely within this court's jurisdiction under 792A, the rule of law jurisdiction, as well as the court's interpretation in Willsey

[00:01:34] Speaker 04:
that a failure to apply the rule of law is a prima facie legal claim.

[00:01:39] Speaker 05:
But if what the Veterans Court did was essentially say, we're not going to rely on, or we won't, we'll look at all the facts and all the decisions of the board, separate and apart from the absence of the service record evidence, and then found that even having referred to the service record evidence or the absence of the service record evidence was

[00:02:02] Speaker 05:
was not prejudicial error.

[00:02:05] Speaker 05:
Are we allowed to review a conclusion of the Veterans Court regarding what constitutes prejudicial error or not?

[00:02:13] Speaker 04:
I think that this particular question, Your Honor, more accurately, can you review whether the Veterans Court had the jurisdiction to make that initial finding a fact regarding the sufficiency of the evidence on an altered evidential landscape from what the Board had relied upon

[00:02:31] Speaker 04:
The board's decision at page 30 of the appendix relies on three pieces of evidence taken together.

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If we back out the reliance on the absence of records, we're left with what in my view are two very weak reads upon which to base a particularly if you can

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in light of the Board's obligation to consider all other evidence and consider the application of the benefit of the doubt.

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It's a very thin read to support a negative credibility finding.

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Now the Board may well make that finding.

[00:03:17] Speaker 04:
I don't think it will without the official records.

[00:03:19] Speaker 04:
It may, but that was not within the scope of review.

[00:03:24] Speaker 02:
But it seems to me you're making one of two arguments then.

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You're either arguing that the

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Court of Appeals or Veterans Claims made an error in making a harmless error finding, which I don't think we can review.

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Or you're arguing that the Court of Appeals or Veterans Claims doesn't have the power to make a harmless error determination.

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Are you making either of those two arguments?

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Because it sounded to me like when you started you were saying that, and then when you finished you were saying, well,

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there's no way that this is really harmless error.

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The board surely would have found differently.

[00:03:58] Speaker 04:
Well, it's not harmless error, Your Honor, because this is somewhat analogous to the AZ case, where this court, upon remand, cautioned the Veterans Court that it needed to consider whether or not it had, whether it needed to remand to the board for additional fact-finding in view of the change

[00:04:19] Speaker 04:
the change in the nature of the evidence.

[00:04:23] Speaker 02:
But the Court of Appeals made that determination, did it not, when they said that we find that there's no prejudicial error here, even if the board was wrong with respect to the legal issue that you've raised?

[00:04:38] Speaker 04:
I don't believe the board or the court could make that finding of no prejudicial error.

[00:04:42] Speaker 02:
Well, that's my question.

[00:04:43] Speaker 02:
Are you saying that the court doesn't have the power to make that kind of harmless error determination?

[00:04:49] Speaker 02:
Because that's what it was, right?

[00:04:51] Speaker 02:
It was a harmless error determination that the court made.

[00:04:56] Speaker 02:
I'm right about that, am I not?

[00:05:00] Speaker 02:
You seem to be resisting that.

[00:05:02] Speaker 02:
That's certainly what I read into that portion of the court's opinion.

[00:05:07] Speaker 04:
What Mrs. Hornby contends is that the Veterans Court did not have, it was not within the Veterans Court scope of review as construed by the Hensley case to make the initial finding a fact that one piece of evidence was sufficient to render the Veterans credibility, to render negative credibility finding

[00:05:33] Speaker 04:
whereas the board itself required reliance on all three pieces of evidence, two of them being one, a perceived inconsistency in the veteran's statement that he went in to Nagasaki and another time reporting that he came back out and the court did not even address that one, the other being the veteran's admitted error

[00:06:03] Speaker 04:
about the specific date that he went to Nagasaki.

[00:06:06] Speaker 04:
However, the error in his date, as he recalled, and the actual date that we know his ship was docked at Sasebo are all within the regulatory time period.

[00:06:23] Speaker 00:
I thought I knew what the legal question is that you were appealing, but now I'm kind of confused.

[00:06:33] Speaker 00:
Clearly, what's the legal question that we're here to review?

[00:06:37] Speaker 04:
Your Honor, we would like the court to require the Court of Appeals for Veterans Claims to address the legal insufficiency of the evidence, the absence of record evidence.

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And if that determination is favorable to Mrs. Hornbeek, then the Veterans Court will have to determine

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The question that would be, does the Veterans Court have jurisdiction to make new findings of fact?

[00:07:10] Speaker 00:
So are you arguing that a credibility determination could not have been made because there were missing records?

[00:07:23] Speaker 04:
No, I'm not arguing that it, under the facts of this particular case,

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I'm not saying a credibility determination could not have been made.

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We're saying that in reaching that decision, the board relied on evidence that was not reliable.

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And the question then is... But the evidence it relied on were inconsistency in the statements.

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It didn't find credible the testimony or the evidence, the statements made by the family members.

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And there was an inconsistency in the veteran's own recollection?

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Well, the question then is, are those inconsistencies?

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With regard to the family members, they were disregarded because the veteran's testimony was disregarded, was excluded because of the credibility finding.

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The argument is that if there were records out there somewhere,

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that would show that he indeed did have duties in Nagasaki?

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I would argue there is evidence in the record which under 1154A the board must consider in light of the circumstances of his service.

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We actually know very, very little about his service.

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There is a gap.

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We know that he went to Beach Battalion School

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We know he had amphibious training, both facially suggesting that he was trained to do something that was off of his ship.

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In February 1945, we know he was assigned to the USS Fallon.

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The record then goes dark for the next eight or nine months until he is back in California.

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The only way we know that he was in Sasebo is that when he returned to California, he got that stamp on one of his

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personnel records, and independently, the board has confirmed through other sources that his ship docked at Susable on two different occasions.

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We are otherwise without any evidence other than the veteran's testimony as to what he actually did in the service, where he traveled.

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We don't even know where his ship docked once it left California in February until it returned in October.

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let alone know where the veteran himself performed his duties.

[00:10:01] Speaker 05:
So if... But isn't that precisely the point here that if we, if you only have so many, if that's all you have is the veteran's own statements and those statements are found not to be credible for a whole variety of reasons, then you don't have anything.

[00:10:25] Speaker 05:
That satisfies the burden of proof, right?

[00:10:27] Speaker 04:
If the credibility decision stands, then I think that is correct.

[00:10:33] Speaker 04:
But the question is whether that credibility decision can stand on the basis of evidence which is not reliable under the AZ case.

[00:10:45] Speaker 02:
Could I return to the point that we were discussing earlier?

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And I don't want to beat this into the ground.

[00:10:51] Speaker 02:
But I want to make sure I understand what your legal point is.

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with respect to whether the veteran's court has the authority in appropriate case, well, in any case, that it decides to apply the harmless error rule to do so, whether it has that authority.

[00:11:09] Speaker 04:
I think it does have that authority.

[00:11:11] Speaker 02:
So if it were to just, I'm sorry, I cut you off.

[00:11:14] Speaker 02:
You were going to say under certain circumstances, i.e.

[00:11:19] Speaker 02:
only when it does so correctly, is that?

[00:11:22] Speaker 02:
Well, one would hope.

[00:11:24] Speaker 02:
Well, but that's important because you could have a harmless error determination, which in itself presumably wouldn't be reviewable by us, even if it's wrong, right?

[00:11:34] Speaker 04:
That's true.

[00:11:35] Speaker 04:
But again, I think this is comparable to the AZ case, where if the record is altered by the decision that certain portions of the evidence that the board relied on are not reliable,

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Then we have a real question of whether or not what remains.

[00:11:56] Speaker 04:
If you take out of the mix the absence of evidence in the record as substantive negative evidence, which is how it was treated by the board, if you take that out of the mix, then there really are just two circumstances, two items of evidence that the board relied on.

[00:12:15] Speaker 04:
Number one, the inconsistencies in the dates.

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And number two, an inconsistency that I think would bear further explanation by the board about going in and coming back out.

[00:12:32] Speaker 02:
But isn't that going to be present in every harmless error inquiry where you say there may have been an error with respect to one aspect of the case, but we think it wasn't prejudicial because the other evidence was amply sufficient to support the board's determination.

[00:12:52] Speaker 02:
the essence of harmless error determination, is it not?

[00:12:54] Speaker 04:
I don't think you can reach that.

[00:12:56] Speaker 04:
I don't think the Veterans Court could have reached that because the board... Could have as a matter of its power or could have as a matter of logic?

[00:13:05] Speaker 04:
As a matter of its jurisdiction because... I'm sorry.

[00:13:09] Speaker 02:
Well, I come back, it sounds to me like you're saying they don't have the authority to make a harmless error determination.

[00:13:17] Speaker 02:
Because in this case, suppose there were 30 items of evidence in addition to the records issue.

[00:13:23] Speaker 02:
And they said the evidence is overwhelmingly strong that he wasn't there.

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But the board relied on this records business, and we think they were wrong in that regard.

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But otherwise, it's clear that the error is harmless.

[00:13:39] Speaker 02:
You think they don't have the authority to do that?

[00:13:41] Speaker 02:
They have to send it back to the board?

[00:13:42] Speaker 04:
I think when the decision on that issue implicates the application of the benefit of the doubt, that the Veterans Court does not have the jurisdiction to make that initial finding a fact based on the new evidential landscape.

[00:14:01] Speaker 04:
And particularly in this case where the absence of records was given

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you know, a great reliance was, the board placed great reliance on the absence of records.

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So if the board should not have relied on that, could not have relied on the absence of records, then we're left with two items of evidence that by themselves are not, it's questionable as to whether they're persuasive.

[00:14:36] Speaker 04:
Do they preponderate?

[00:14:38] Speaker 05:
We'll give you three minutes for rebuttal.

[00:14:40] Speaker 04:
Thank you, Your Honor.

[00:14:50] Speaker 01:
Excuse me.

[00:14:52] Speaker 01:
May I please the Court.

[00:14:55] Speaker 01:
Certainly understandable that Ms.

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Hormbeek is attempting to find some sort of legal argument that this Court would have jurisdiction to review.

[00:15:04] Speaker 01:
But as Your Honors correctly articulated the issue,

[00:15:08] Speaker 01:
The issue here is not whether the Veterans Court made an initial finding of fact contrary to what the board found and what the board relied on, but whether the court correctly applied the rule of prejudicial error.

[00:15:21] Speaker 05:
Here.

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Really, the court did say, all right, the board relied on three things.

[00:15:29] Speaker 05:
And one of the things the board said is that you have to look at

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weaknesses in his testimony or problems like the psychiatric disability and compare that or add it to the absence of service records.

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And so ultimately the board really did base its credibility determination, at least in part, on an improper consideration.

[00:15:54] Speaker 05:
Now, it isn't, so when the Veterans Court then says we're going to take that improper consideration off the table,

[00:16:02] Speaker 05:
How did they then do the weighing that the board itself did?

[00:16:07] Speaker 05:
How does the Veterans Court have the authority to do that weighing in the first instance?

[00:16:10] Speaker 01:
Well, if I may address a factual underpinning of Your Honor's comment.

[00:16:17] Speaker 01:
The board actually did make the very finding that Ms.

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Hormiga alleges it did not.

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The board made, and this is on page 30 of the appendix, the board actually found that

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Where a ship was stationed, the type of where an individual stationed on that ship actually served is the type of information that one would expect to be in military records with the location of the ship and the veterans service records.

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And there, the board noted,

[00:17:00] Speaker 01:
The veteran service personnel records in the DTRA report clearly indicate he actually landed at Sacebo, Japan.

[00:17:06] Speaker 01:
In fact, the server records document the veteran participated in the initial occupation of Sacebo on September 22nd to 23rd, 1945.

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The absence of an entry in a record may be evidence against the existence of a fact if it were ordinarily to be recorded.

[00:17:22] Speaker 01:
So here, the board made the very determination that Ms.

[00:17:27] Speaker 01:
Hornbeek alleges is missing and alleges constitutes legal error.

[00:17:31] Speaker 01:
The Veterans Court reviewed the board's decision for clear error, determined whether its credibility determination, its decision was supported by the record, and found on the basis of the inconsistencies in Mr. Hornbeek's statements alone that it was, that there was no clear error.

[00:17:49] Speaker 01:
The Veterans Court addressed Ms.

[00:17:50] Speaker 01:
Hornbeek's arguments in order.

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The first one being the inconsistencies in Mr. Hornbeek's statements were not enough, or that was incorrect.

[00:18:02] Speaker 01:
and found that those in and of themselves were enough, therefore declining to reach the rest of or to address specifically the rest of Ms.

[00:18:10] Speaker 01:
Warming's arguments before the veterans court.

[00:18:13] Speaker 01:
The veterans court said, I don't have to.

[00:18:15] Speaker 01:
The issue was whether it's clear error.

[00:18:17] Speaker 01:
This is not clear error.

[00:18:19] Speaker 01:
Whether there is some sort of legal wrongdoing below is irrelevant.

[00:18:27] Speaker 01:
Again, it's not harmless.

[00:18:28] Speaker 01:
So again, Your Honor's correctly articulated the issue here.

[00:18:32] Speaker 01:
there was a finding effect in the first instance, but whether there was an application of harmless error.

[00:18:37] Speaker 02:
But I'm not sure you've fully addressed Judge O'Malley's question.

[00:18:41] Speaker 02:
As I think Judge O'Malley was saying, she speaks for herself very well.

[00:18:47] Speaker 02:
But I think she was saying, didn't the board's finding with respect to the records issue somehow infect its determinations with respect to the credibility issue?

[00:18:58] Speaker 02:
And if so, is it

[00:19:00] Speaker 02:
inappropriate for the court to have then teased them apart and treated them as if they were independent grounds of determination.

[00:19:08] Speaker 02:
Your response was in significant part that, well, the board was right in looking at the records.

[00:19:13] Speaker 02:
But we have to assume at this point, for purposes of the argument about harmless error, that the board was wrong and then ask whether, nonetheless, the court was right in saying that the error was harmless because of

[00:19:28] Speaker 02:
the credibility issues.

[00:19:30] Speaker 02:
So what I need to hear you say is where we can determine from what the board has said that the credibility issue was quite independent of the records issue.

[00:19:43] Speaker 01:
Well, at first, Your Honor would note that the board did say, taking all of these facts together, that they find the weight of the evidence is actually against a finding that the veteran didn't serve

[00:19:57] Speaker 01:
within 10 miles of Nagasaki.

[00:19:59] Speaker 01:
So the board didn't conflate the service records and the DTRA report and the veteran's statement for the purpose of reaching the credibility issue.

[00:20:10] Speaker 05:
I mean, when you say they didn't conflate, they said these things all taken and they didn't say, they just said inconsistencies in his statements as well as the lack of documentation of the claim service and the service records and the findings in the DTRA report taken together.

[00:20:26] Speaker 05:
So how do we separate them?

[00:20:28] Speaker 01:
Ms.

[00:20:29] Speaker 01:
Hornbeck is complaining about the credibility determination, and is saying that the board somehow relied on the inconsistencies in Mr. Hornbeck's statements, plus the fact that his statements contradicted his service records.

[00:20:42] Speaker 00:
Going back to page 30, and there again, and this is further as to what Judge O'Malley just read, it says, as such, the absence of the entry in the service record is evidence.

[00:20:54] Speaker 00:
against this claim service in this case.

[00:20:56] Speaker 00:
And then it goes on and uses that evidence in order to build a lack of credibility case.

[00:21:03] Speaker 00:
How can that be evidence?

[00:21:04] Speaker 00:
And it did it, but it cites a case and says that this type of record would have been recorded, ordinarily recorded.

[00:21:14] Speaker 00:
It's kind of like the presumption of regularity it's trying to apply here in an evidentiary manner.

[00:21:24] Speaker 00:
I didn't find anything else that says that there's evidence that this type of entry would have ordinarily been recorded.

[00:21:30] Speaker 00:
In fact, it seemed like the whole venture was recorded pretty well.

[00:21:36] Speaker 01:
I'm sorry, Your Honor.

[00:21:36] Speaker 01:
I'm not sure if I understand.

[00:21:38] Speaker 01:
And I certainly don't want to fail to answer your question.

[00:21:40] Speaker 00:
Well, let me go back and just go back to the fact that it seems to me that the board used the absence of the entry of the service record, whether he went to Nagasaki or not, that absence.

[00:21:53] Speaker 00:
as evidence that weighed against him?

[00:21:58] Speaker 01:
Yes, it did.

[00:22:01] Speaker 01:
And that certainly was, again, there were three prongs, three pieces of evidence that the board looked at.

[00:22:07] Speaker 01:
And I understand the concern that the Veterans Court only fully addressed the first of those pieces of evidence that supported the board's

[00:22:20] Speaker 01:
determination that the veteran had failed to establish service within 10 miles of Nagasaki.

[00:22:26] Speaker 01:
But that is exactly what the rule of prejudicial error is.

[00:22:29] Speaker 01:
It's clear error.

[00:22:30] Speaker 01:
It's finding, is it clearly erroneous?

[00:22:36] Speaker 01:
The first prong is enough to support the board's signing.

[00:22:38] Speaker 01:
That is what the rule of prejudicial error is.

[00:22:41] Speaker 01:
That is what the Veterans Court did.

[00:22:43] Speaker 01:
If the Veterans Court was required to address every single

[00:22:48] Speaker 01:
issue, every single piece of evidence the board considered, every single argument that the veteran raises before it, even if on the basis of one fact alone that is the board's ruling is not fairly erroneous, there would be no rule of prejudicial error.

[00:23:05] Speaker 01:
Then the veteran's court would be required, again, to address every single finding the board made, every single argument that an appellant makes before it.

[00:23:14] Speaker 00:
I mean, that would effectively vitiate... Well, maybe you could say that instead of saying that the lack of an entry is ways against the veteran, to say that it has no weight at all.

[00:23:27] Speaker 01:
The Veterans Court of the Board, Your Honor.

[00:23:29] Speaker 00:
The Board.

[00:23:34] Speaker 01:
The Board could have done that.

[00:23:36] Speaker 01:
The Board didn't do that here.

[00:23:38] Speaker 01:
But again, I mean, I guess we could say that the Board would have to say

[00:23:45] Speaker 01:
kind of articulated in that manner.

[00:23:47] Speaker 01:
But again, the question is whether the Veterans Court appropriately applied the rule of prejudicial error.

[00:23:54] Speaker 01:
I believe here that the Veterans Court had the authority to do that.

[00:23:58] Speaker 01:
It appropriately did that.

[00:24:00] Speaker 01:
And we hear that this is analogous to AZ.

[00:24:04] Speaker 01:
But again, in AZ, that was remanded because the Veterans Court actually relied on an absence of information.

[00:24:12] Speaker 01:
This court said,

[00:24:14] Speaker 01:
That was incorrect.

[00:24:15] Speaker 01:
You can't rely on that absence of information.

[00:24:17] Speaker 01:
You need to remand.

[00:24:19] Speaker 01:
The evidentiary landscape has changed, as Ms.

[00:24:22] Speaker 01:
Booth said.

[00:24:23] Speaker 01:
You need to remand to figure out what to do in light of the fact that the evidentiary landscape changed.

[00:24:27] Speaker 01:
Here, the evidentiary landscape hasn't changed.

[00:24:30] Speaker 01:
It's simply one prong was enough.

[00:24:33] Speaker 01:
We don't need to address the Veterans Court.

[00:24:35] Speaker 01:
It doesn't need to address the other issues because this one prong is enough.

[00:24:40] Speaker 01:
Nothing has changed.

[00:24:42] Speaker 01:
Again, it's the application of the rule of prejudicial error, not a finding of fact in the first instance, not looking at the evidence, weighing the evidence in any different way, simply saying, this is what the board found.

[00:24:56] Speaker 01:
That is enough.

[00:24:57] Speaker 01:
That is not clearly erroneous.

[00:25:01] Speaker 01:
And again, we've been talking a lot here about, just bringing to the court's attention, about the evidence, about the weighing of evidence, about the credibility of the evidence.

[00:25:09] Speaker 01:
This case is about whether the Veterans Court

[00:25:12] Speaker 01:
appropriately applied the appropriate legal standard whether the board's credibility determination was clear error.

[00:25:23] Speaker 02:
Do you think that the determination of harmless error is appropriately done by the reviewing court by determining whether there was sufficient evidence other than the questionable evidence that could have supported

[00:25:40] Speaker 02:
the lower tribunal's determination, or is it the question of whether the lower tribunal surely would have reached the same conclusion based on the limited subset of evidence that it was appropriate for it to consider?

[00:25:57] Speaker 02:
You understand the question?

[00:25:59] Speaker 01:
I believe I do, Your Honor.

[00:25:59] Speaker 01:
And again, I don't want to waste anybody's time by answering a question other than what was asked.

[00:26:05] Speaker 01:
I do believe that

[00:26:08] Speaker 01:
When the Veterans Court is applying a clearly erroneous standard, the appropriate determination is whether the record supports the board's determination.

[00:26:19] Speaker 02:
Even if the board had said, for example, that the factor that impresses us the most and on which

[00:26:35] Speaker 02:
we think this case most clearly turns is the absence of any record.

[00:26:41] Speaker 02:
But there was the inconsistency.

[00:26:42] Speaker 02:
Would it be appropriate for the Court of Appeals to have said, yeah, but the inconsistencies in his statements are sufficient to uphold the determination of the board?

[00:26:55] Speaker 02:
Would that be an appropriate mechanism for prejudicial error determination?

[00:27:00] Speaker 01:
I think it would be.

[00:27:02] Speaker 01:
A closer call is certainly a more, for lack of a better word, a more disturbing application.

[00:27:08] Speaker 01:
Wrong word, but it's what I've got right now.

[00:27:13] Speaker 01:
But it's certainly something that the court could do.

[00:27:15] Speaker 01:
If the court is looking at the record as a whole and looking at the termination and looking at the evidence, again, the evidence that the board relied on and said this is appropriate, this is not.

[00:27:26] Speaker 05:
What about the overlay of the benefit of the doubt rule?

[00:27:29] Speaker 05:
So say the board has three reasons.

[00:27:33] Speaker 05:
And one of them falls out because it was an inappropriate reason.

[00:27:37] Speaker 05:
How do we know whether or not in the absence of that third prong, the board wouldn't say, well, then given the benefit of the doubt rule, even though there were some inconsistencies in his testimony, we now fall off the fence the other way.

[00:27:52] Speaker 05:
Isn't that really up to the board to decide in the first instance?

[00:27:56] Speaker 01:
Your Honor, the benefit of the doubt rule applies when there's kind of parity.

[00:28:02] Speaker 01:
It doesn't weigh, the evidence doesn't necessarily weigh in favor of, the Veterans Administration doesn't necessarily weigh in favor of the veteran, kind of like tie goes to the runner in baseball.

[00:28:17] Speaker 01:
If you have three reasons, and one of them drops out, and all you have left are the inconsistencies, I believe your honor remarked in this earlier, that the only evidence

[00:28:27] Speaker 01:
are statements by the veteran that are themselves internally inconsistent, which is what the board found, which is what the veteran's court reviewed, then there is no parity.

[00:28:37] Speaker 01:
There is no balance for a benefit to go to the veteran.

[00:28:40] Speaker 01:
So in this instance, no.

[00:28:41] Speaker 01:
If you have three reasons and one falls out, and you don't have anything that really weighs in favor of the veteran in and of itself, I mean, again, the only way to make that happen would be for the veteran's court to have found that the board's credibility determination

[00:28:57] Speaker 01:
was erroneous, was incorrect.

[00:28:58] Speaker 01:
Again, that the application of a rule to lots of factual determination.

[00:29:04] Speaker 01:
So no, the benefit of that rule doesn't come into play here, because there's no balance, no tie that needs to be decided.

[00:29:14] Speaker 01:
Do you have any further questions, otherwise?

[00:29:17] Speaker 01:
Okay, thank you.

[00:29:29] Speaker 04:
Your Honor, I think it is pertinent to clarify what the board found with respect to occupation.

[00:29:37] Speaker 04:
The board relied on the veteran's personnel record, which was stamped that he occupied, participated in the occupation of Sosebo.

[00:29:46] Speaker 04:
Sosebo being the deep water port that was closest to Nagasaki after the bombing.

[00:29:52] Speaker 05:
But not within 10 miles.

[00:29:53] Speaker 04:
No, it was 30 miles away.

[00:29:56] Speaker 04:
And also,

[00:30:01] Speaker 04:
That is what the board relied on.

[00:30:04] Speaker 04:
That is the fact that the board relied on to say that those records are affirmative evidence that he did not go to Nagasaki.

[00:30:12] Speaker 04:
However, that record was created by the Navy in October of 1945.

[00:30:16] Speaker 04:
For the Navy's purposes, he did occupy Sisebo.

[00:30:22] Speaker 04:
However, the statute and the implementing regulation governing the radiation exposure claims

[00:30:30] Speaker 04:
is much more expansive.

[00:30:34] Speaker 04:
Under that statute and the statute as implemented by the Reg, the service member need not have actually occupied a particular area within the ordinary meaning of that word.

[00:30:49] Speaker 04:
It is sufficient if he participated or rather if he provided support services to the occupation even though he may have been assigned to a different

[00:31:00] Speaker 04:
unit may have been assigned to occupy a different geographical area.

[00:31:05] Speaker 04:
That was the court's interpretation in the McGuire case.

[00:31:09] Speaker 02:
As long as he went within the 10 miles at some point.

[00:31:12] Speaker 04:
He had to meet the other requirements, right.

[00:31:14] Speaker 04:
He had to be within 10 miles of Nagasaki.

[00:31:17] Speaker 04:
It had to be within that particular time frame.

[00:31:19] Speaker 00:
Is there any timing requirement?

[00:31:22] Speaker 00:
Does it have to have been within August of 45?

[00:31:26] Speaker 04:
No, Your Honor, and it can be any time according to the statute and the reg between August 7, 1945, which is when the bomb was dropped, through a date in July of 1946.

[00:31:37] Speaker 04:
That's why we think that the board has to make the initial finding a fact as to whether the one statement that the court relied on, being the differing dates, is sufficient to preponderate against his credibility where

[00:31:55] Speaker 04:
the veterans' error recalling dates makes no difference on the merits because all those dates are within that regulatory time period.

[00:32:16] Speaker 03:
I would also

[00:32:21] Speaker 00:
Was there any record evidence at all that any U.S.

[00:32:24] Speaker 00:
troops occupied Nagasaki the month that the bomb exploded?

[00:32:29] Speaker 04:
Not in this record, no.

[00:32:32] Speaker 02:
Presumably no one from the U.S.

[00:32:35] Speaker 02:
occupied until after the surrender, which occurred in September, September 20th or something.

[00:32:42] Speaker 02:
I don't think there was anybody in Nagasaki.

[00:32:45] Speaker 04:
I don't know.

[00:32:45] Speaker 04:
I don't know, Your Honor.

[00:32:46] Speaker 04:
It's not disclosed by the records.

[00:32:48] Speaker 02:
Well, history would probably be lost.

[00:32:50] Speaker 04:
Right, right.

[00:32:51] Speaker 04:
disclosed by this claim file.

[00:32:53] Speaker 04:
So I don't know.

[00:32:55] Speaker 04:
But the important thing, at least from the perspective of the credibility analysis, is that even though the veteran erroneously remembered the specific date, the dates that he did remember are still within that time period, the regulatory time period.

[00:33:13] Speaker 04:
Now, will the board find that that's still sufficient?

[00:33:16] Speaker 04:
ponderate against the veterans credibility without the backup of the absence of record.

[00:33:24] Speaker 04:
I think there's a good argument to be made that it would not.

[00:33:27] Speaker 04:
I don't think the Court of Appeals for Veterans claims could reach that decision and make that finding a fact.

[00:33:35] Speaker 04:
All right, it's your pastor time.

[00:33:37] Speaker 04:
Thank you.