[00:00:35] Speaker 02:
Mr. Stoltz?

[00:00:41] Speaker 02:
And you reserve five minutes of your time.

[00:00:46] Speaker 02:
Yes, Your Honor.

[00:00:48] Speaker 03:
May it please the Court.

[00:00:52] Speaker 03:
The Venice course legal error can be found on page four of the Joint Appendix.

[00:00:56] Speaker 03:
It found that 38 CFR section 3.303b was not for application.

[00:01:03] Speaker 03:
Mr. Manigault,

[00:01:04] Speaker 03:
was diagnosed with schizophrenia in service.

[00:01:06] Speaker 03:
That's Appendix 13.

[00:01:09] Speaker 02:
Let's deal with a real threshold issue.

[00:01:11] Speaker 02:
Can you point to the legal question involved here?

[00:01:14] Speaker 02:
Because otherwise, it appears that we're being asked to reweigh the facts of the case.

[00:01:20] Speaker 02:
And as you well know, we don't have the jurisdiction to do that.

[00:01:23] Speaker 03:
Absolutely, Your Honor.

[00:01:25] Speaker 03:
I think that the legal inquiry starts with the original conclusion of law in 1982, which

[00:01:33] Speaker 03:
When the board concluded, as a matter of law, that Mr. Manigault was not entitled to service connection, it misinterpreted 3.303 and 3.309, which read the same then as they read now.

[00:01:46] Speaker 03:
As a matter of law, once Mr. Manigault was diagnosed with schizophrenia.

[00:01:50] Speaker 02:
Now, did it misinterpret it, or are you saying it misapplied it?

[00:01:53] Speaker 03:
They didn't apply 3.3 at all.

[00:01:56] Speaker 03:
And that leads us to the Veterans Court's legal error when it said, well, the board didn't even need to apply.

[00:02:02] Speaker 03:
3.303 because it found that he didn't have schizophrenia.

[00:02:05] Speaker 03:
That's the legal error.

[00:02:06] Speaker 03:
And as Your Honor knows under the clearly and unmistakably erroneous standard, whether the board applied the correct law in 1982 is the inquiry to find.

[00:02:17] Speaker 03:
Under this said circumstance, we're clear an unmistakable error because we're not arguing that the facts were not before the board.

[00:02:24] Speaker 03:
So that's the legal error.

[00:02:26] Speaker 04:
I mean, I get your argument.

[00:02:27] Speaker 04:
Honestly, this is a pretty pathetic case.

[00:02:32] Speaker 04:
clearly now been diagnosed with schizophrenia and he's just asking for a few years of back benefits.

[00:02:36] Speaker 04:
But it seems to me that the problem is in order for your legal argument to apply, there has to be an undisputed finding that he had schizophrenia in service.

[00:02:47] Speaker 04:
And although there are some references to that from like MEB and P proceedings, there's also references to VA exams immediately after and at the same time these proceedings are occurring.

[00:02:59] Speaker 04:
that diagnosed him with a personality disorder, which I think you agree is not compensable.

[00:03:05] Speaker 04:
And so what I don't understand is how we get from all these competing factual diagnoses and ultimately the VA in the, I think, 82 decision saying he doesn't have schizophrenia, has a personality disorder, how we get over that?

[00:03:20] Speaker 04:
Because don't we have to have an undisputed finding of schizophrenia in service for 303B to apply?

[00:03:29] Speaker 03:
You get over it, Your Honor, by applying and interpreting the law correctly.

[00:03:34] Speaker 03:
Because the board went awry, it was stopped.

[00:03:37] Speaker 03:
Mr. Magdahl had a shield, 3.303 being 3.309.

[00:03:42] Speaker 03:
As a matter of law, if you follow the plain language of 3.303, he means it all the way through.

[00:03:49] Speaker 04:
He's diagnosed in service.

[00:03:51] Speaker 04:
OK, but this is where I have a little bit of a hard time getting to the factual conclusion that you're relying on, because does it mean that any diagnosis in service of schizophrenia is controlling forever?

[00:04:05] Speaker 04:
Or sometimes these things happen, these kind of illnesses are very hard to diagnose.

[00:04:12] Speaker 04:
if he's diagnosed with schizophrenia by one doctor, goes to another hospital, but says, we're not sure, let's follow up, and goes to another hospital, and that doctor says, no, it's not schizophrenia, it's personality disorder.

[00:04:25] Speaker 04:
Then he gets out, a PEB looks at him and says, oh, yeah, it is, but the VA at the same time says, no, it's not.

[00:04:31] Speaker 04:
You have one finding, at least, of schizophrenia, maybe two, but you have some others going the other way.

[00:04:37] Speaker 04:
So how do we get it resolved as a matter of law

[00:04:42] Speaker 04:
he had schizophrenia in service, when the VA itself found he didn't?

[00:04:46] Speaker 03:
It is a complicated question, which is why the regulations exist to help veterans.

[00:04:51] Speaker 03:
3.303 and 3.9, and Groves a little bit, and Walker a little bit, discuss these.

[00:04:57] Speaker 03:
And Groves is a guidepost in this case, because it establishes that there's a presumption, it is precisely, Your Honor, because these are difficult questions, that these regulations exist to shield veterans from VA going out and developing

[00:05:11] Speaker 03:
the record when they no longer have to under the law, when they develop these things and then rely on the one piece of evidence that is detrimental to the veteran to deny the case.

[00:05:20] Speaker 03:
I would submit that that's the reason the regulations exist, and that's the reason why it's a legal question.

[00:05:25] Speaker 04:
But don't you still have to have an undisputed finding of service in current of this happening in service?

[00:05:37] Speaker 04:
I know, hypothetically, I know it's not exactly this case, but what if you actually did have this guy goes to the doctor at his local base and the doctor, who's a general practitioner, says, oh, I think he might have schizophrenia, and then sends him off to a specialist psychiatrist who says, oh, no, you have borderline personality.

[00:05:58] Speaker 04:
I mean, there you have, what do we do with that?

[00:06:02] Speaker 04:
does the regulation kick in just because one person has said it?

[00:06:05] Speaker 03:
Well, the regulation does kick in, Your Honor, and the regulation is clear because it contemplates, the regulation doesn't contemplate different diagnoses from different doctors at different times.

[00:06:13] Speaker 03:
It's very specific.

[00:06:14] Speaker 03:
It contemplates, and Groves again talks about this, it contemplates the inner current causes.

[00:06:18] Speaker 03:
For example, if maybe he's diagnosed with schizophrenia and then there's a

[00:06:24] Speaker 03:
drug abuse problem or something like that, perhaps, I'm just kind of spitballing a hypothetical, perhaps that is the inner current cause that would make a very different case.

[00:06:32] Speaker 03:
It may not arise if there are an unmistakable error from the board.

[00:06:36] Speaker 04:
I think what I'm hearing from you, as long as there's any diagnosis in service, even if there's overwhelming evidence to the contrary, this regulation kicks in.

[00:06:46] Speaker 03:
The regulation kicks in because 3.309 says it's a psychosis, which it is in this case.

[00:06:51] Speaker 03:
It meets, it starts to fall under these presumptions.

[00:06:54] Speaker 03:
And it becomes a presumption.

[00:06:56] Speaker 03:
Any presumption, of course, your honor, is rebuttable.

[00:06:59] Speaker 04:
But let me ask it the other way.

[00:07:01] Speaker 04:
What if you had two or three doctors look at it and say, he has a personality disorder.

[00:07:05] Speaker 04:
Let's refer him for processing out.

[00:07:08] Speaker 04:
And at some point, somebody says, oh, well, maybe we should look at schizophrenia.

[00:07:12] Speaker 04:
He might have schizophrenia.

[00:07:14] Speaker 04:
And then he goes to another psychiatrist and says, oh, well, he doesn't have schizophrenia.

[00:07:18] Speaker 04:
Is your view even that one

[00:07:21] Speaker 04:
straight opinion, medical opinion, is enough to kick in the presumption.

[00:07:24] Speaker 03:
No.

[00:07:25] Speaker 03:
You would have to be diagnosed, and I think that diagnosis is fine, Your Honor, but you'd have to be diagnosed again at any later date.

[00:07:33] Speaker 03:
That's what 303 specifically says.

[00:07:36] Speaker 03:
It is a very pro-claimant, pro-veteran regulation.

[00:07:39] Speaker 03:
There's no doubt about that, but it's supposed to be.

[00:07:41] Speaker 03:
And so that one diagnosis, Your Honor, doesn't... OK, wait a minute.

[00:07:44] Speaker 04:
So I think you're taking me a little bit further along.

[00:07:48] Speaker 04:
Are you saying that once

[00:07:50] Speaker 04:
At some later stage, he gets diagnosed with schizophrenia.

[00:07:54] Speaker 04:
And you look back and say, well, even though there are lots of competing diagnoses, as I said, he hadn't, if there was one in there, that's enough to say that regulation should have applied.

[00:08:05] Speaker 03:
And that, I think, Your Honor, and I don't think I clearly answered it, is why Your Honor kept using the word undebatable.

[00:08:12] Speaker 03:
It doesn't have to be undebatable.

[00:08:14] Speaker 03:
The regulation doesn't require undebatable evidence.

[00:08:16] Speaker 03:
The regulation requires diagnosis and service

[00:08:19] Speaker 03:
Diagnosis again at any later date, no matter how remote.

[00:08:23] Speaker 03:
And that, I think, is the key here.

[00:08:25] Speaker 04:
But it still doesn't answer what happens when there's competing diagnoses in service.

[00:08:32] Speaker 04:
Because it seems to me what you're saying is that this presumption is almost going to be retroactively used for Q later on.

[00:08:39] Speaker 04:
Because the VA at the time thought he didn't have

[00:08:44] Speaker 04:
schizophrenia, there wouldn't be no reason for them to use this presumption.

[00:08:49] Speaker 03:
So under your honor's hypothetical, if I'm understanding correctly, the diagnosis would have come after an adjudication.

[00:08:54] Speaker 03:
The second diagnosis that we're talking about would have come after an adjudication?

[00:08:59] Speaker 04:
Yeah, like the board decision here.

[00:09:00] Speaker 03:
And so your honor would be concerned about it going back and being used pretty much willy-nilly any time, because he'd go back and say, well, you should have seen into the future.

[00:09:09] Speaker 03:
That's not what I'm asking.

[00:09:10] Speaker 04:
What I'm concerned about is,

[00:09:12] Speaker 04:
If the VA has a record before it, and it's the fact-finder, and I don't think you're saying that it's bound by separate diagnoses from the different army or military system.

[00:09:21] Speaker 04:
I mean, they're certainly instructive.

[00:09:23] Speaker 04:
But it looks at it anew and says, well, despite these diagnoses from the military doctors, we've looked at this, and our conclusion is no schizophrenia, personality disorder.

[00:09:36] Speaker 04:
Why would they think to apply that presumption at that time?

[00:09:41] Speaker 04:
because there would be no schizophrenia to apply it to.

[00:09:44] Speaker 03:
And under your honor's scenario, there is no diagnosis, and I'm still... Well, yeah, sure.

[00:09:50] Speaker 04:
There's the military doctor's diagnosis.

[00:09:53] Speaker 04:
You recognize, I think, that there can be multiple diagnoses.

[00:09:56] Speaker 04:
Absolutely.

[00:09:57] Speaker 04:
But isn't this what happens when somebody departs the military?

[00:10:01] Speaker 04:
There may be some medical opinions from the military doctors that led up to the discharge, which has different standards, I'm sure you know,

[00:10:09] Speaker 04:
And the VA gets the file and says, well, he may have schizophrenia.

[00:10:14] Speaker 04:
He may not.

[00:10:15] Speaker 04:
We do our own independent fact-finding, and they do a holistic look at the evidence.

[00:10:19] Speaker 04:
They don't completely disregard the military evidence.

[00:10:21] Speaker 04:
And their conclusion is, which I think was their conclusion in 82, was he does not have schizophrenia.

[00:10:27] Speaker 04:
If that's the case, why would the presumption ever kick in?

[00:10:33] Speaker 04:
Just because there was one diagnosis of schizophrenia or two when the VA has a contrary diagnosis.

[00:10:41] Speaker 03:
I think that the regulation is the regulation, Your Honor, and my answer would be that the regulation, as long as he meets the plain language of that, and there's no inter-current cause, now perhaps the different diagnoses would be a very factual determination at that point.

[00:10:56] Speaker 03:
And then we are in facts, and I recognize I'm losing if we're in facts, I understand that, Your Honor.

[00:11:01] Speaker 03:
But if there was some inter-current cause under the regulation, then perhaps the VA

[00:11:07] Speaker 03:
can weigh those facts.

[00:11:08] Speaker 03:
That's not what happened here, though.

[00:11:10] Speaker 03:
So I understand why.

[00:11:11] Speaker 03:
In fact, I believe that because your honest question is so complicated, that might be a reason why the regulation reads the way it does.

[00:11:19] Speaker 03:
The regulatory history wasn't particularly instructive here, but it is a very pro veteran regulation.

[00:11:25] Speaker 03:
And perhaps it is because these chronic conditions are so hard to diagnose that they have a specific regulatory path that the board and the regional offices

[00:11:37] Speaker 03:
needed to follow so that it doesn't get bogged down in the noise of all of these different diagnoses.

[00:11:42] Speaker 03:
Now, if there's 50 diagnoses compared to one and then one, and there's some kind of inter-current cause, that is a different scenario because all presumptions can be rebutted.

[00:11:54] Speaker 03:
But that's not the scenario in Mr. Manigault's case.

[00:11:55] Speaker 03:
In Mr. Manigault's case, he gets it in service.

[00:12:00] Speaker 03:
He definitely gets it a time later.

[00:12:02] Speaker 03:
And as we point out in our reply brief, these are based on sound medical principles.

[00:12:06] Speaker 03:
With just the one or two VA exams in there, they're kind of saying, well, maybe it's a personality disorder.

[00:12:11] Speaker 03:
I think that's exactly why the regulations.

[00:12:13] Speaker 03:
It's hard to say.

[00:12:14] Speaker 03:
I didn't write them, obviously.

[00:12:16] Speaker 03:
But it seems that that's why the regulation would exist, is to cut through the complicated kind of mess that Your Honor laid out, which is a very realistic mess.

[00:12:27] Speaker 02:
OK.

[00:12:28] Speaker 02:
You're into your rebuttal, Thompson.

[00:12:30] Speaker 02:
Thank you, Your Honor.

[00:12:34] Speaker 02:
Counselor Tantran.

[00:12:37] Speaker 02:
Tantrum.

[00:12:39] Speaker 02:
How do you pronounce your last name?

[00:12:41] Speaker 02:
Tantrum.

[00:12:42] Speaker ?:
Tantrum.

[00:12:42] Speaker 00:
Okay.

[00:12:42] Speaker 00:
May it please the court?

[00:12:44] Speaker 00:
The court does not have jurisdiction to entertain Mr. Manigault's claims.

[00:12:47] Speaker 04:
Can I just jump right in and get to your friend's last point?

[00:12:51] Speaker 04:
Because it does seem to me there's a little something there.

[00:12:54] Speaker 04:
That these kind of illnesses are very, very difficult to diagnose and perhaps there's been some hostility to diagnosing certain of them in the past anyway.

[00:13:06] Speaker 04:
Why don't we just see this as an evidentiary presumption?

[00:13:10] Speaker 04:
And if the person comes out of the military and has a diagnosis of schizophrenia, then that regulation is evoked.

[00:13:19] Speaker 04:
And the VA has to do more to show that he doesn't have schizophrenia and has to meet a clear and convincing evidence standard, which I think they didn't try to do here.

[00:13:29] Speaker 00:
But here, the language of 303B sets out

[00:13:35] Speaker 00:
standard to work through to figure out if the earlier diagnosis is one that should be relied on in the way that Mr. Mando's counsel claims.

[00:13:44] Speaker 02:
The Section B... I want you to continue with what you're saying, but let me ask you because this makes a difference here.

[00:13:51] Speaker 02:
In 1982, was there a diagnostic impression that was made or a final diagnosis?

[00:13:58] Speaker 00:
There was a final diagnosis in 1982 after the April 1982, one week of observation and psychiatric consultation.

[00:14:08] Speaker 00:
The impression was from an earlier VA review evaluation.

[00:14:13] Speaker 00:
To return to the question about Section B, Section B, as it were described in Walker, lays out how VA will determine whether a diagnosis

[00:14:24] Speaker 00:
Like the one Mr. Manigault was referring to from the Army PED, is one that can establish cremacy.

[00:14:33] Speaker 00:
As the court noted in Walker, it has to be not subject to legitimate question.

[00:14:38] Speaker 00:
And in this case, the VA determined based on the different diagnoses that were before it, that there was a legitimate question about what Mr. Manigault's condition was.

[00:14:52] Speaker 00:
whether that diagnosis was perhaps the correct one, whether the later diagnoses related to personality disorder, and the note, for example, in the MEB report noted that there should be further consideration of the issue.

[00:15:12] Speaker 00:
But this question about 3.309A,

[00:15:19] Speaker 00:
setting schizophrenia as a chronic disease because as a psychosis isn't one that the Veterans Court interpreted, didn't interpret 3.309A at all.

[00:15:32] Speaker 00:
It pointed out that Mr. Mango argued that schizophrenia is a psychosis, but it found that the board found there was no evidence of an acquired psychotic disease.

[00:15:44] Speaker 00:
That is, there was no present disability at the time

[00:15:47] Speaker 00:
of the board decision in 1982.

[00:15:49] Speaker 00:
Mr. Mangos' counsel says that was a legal error.

[00:15:55] Speaker 00:
Without that present disability, the question of whether there was a prior diagnosis that could be one of a chronic disease wasn't really relevant.

[00:16:08] Speaker 00:
And the court explained in Walker that if a veteran can prove a chronic disease shown in service,

[00:16:13] Speaker 00:
and there are no inner current causes, manifestations of the chronic disease present at the time the veteran seeks the benefits established to service connection for chronic disease.

[00:16:24] Speaker 00:
The board was looking at that time there was no present disease, present disability, let alone an earlier chronic disorder noted.

[00:16:40] Speaker 00:
Mr. Manigo's reading of 3.309A is at odds with Walker.

[00:16:46] Speaker 00:
Walker explains that there can be legitimate questions about a diagnosis made and that crenecy can be reviewed to determine if there's a legitimate question and if it's shown for purposes of service connection.

[00:17:02] Speaker 00:
Mr. Manigo's counsel has argued that the regulation does not require an undebatable diagnosis

[00:17:09] Speaker 00:
But again, the regulation does require that it be shown for the purposes of service connection and there be no legitimate question.

[00:17:15] Speaker 04:
But why isn't it enough to point to a couple different medical opinions that said he likely has schizophrenia and that that is enough to invoke this presumption?

[00:17:30] Speaker 04:
I mean, particularly in these instances of these difficult to diagnose mental conditions,

[00:17:38] Speaker 04:
It almost seems like this should be read as kind of a burden shifting regulation once a prima facie case is made.

[00:17:47] Speaker 00:
If that were the case, did VA afforded Mr. Romano the opportunity to have a lengthy evaluation and a psychiatric consultation that reviewed his symptoms?

[00:18:03] Speaker 00:
Sure.

[00:18:03] Speaker 04:
And in 82, they found he had a personality disorder.

[00:18:08] Speaker 04:
And I get, you may be right on the wall, but this is, you know, it's just kind of troubling because clearly he came back with different evidence from different doctors and the VA ultimately agreed he had schizophrenia and opine probably dated back to service.

[00:18:24] Speaker 04:
So now he's, just because there weren't, you know, examinations that came up with this earlier in time that, you know, maybe examinations got more sophisticated or like, he's missing out on, you know, what,

[00:18:38] Speaker 04:
quite a few years of service benefits.

[00:18:41] Speaker 04:
And the nature of this illness, at least in this case, shows that it pretty much did date back to the service.

[00:18:47] Speaker 04:
So it's a little frustrating that, you know, just because they may have gotten it wrong in 82 and changed their minds in, what, like 2006, that he misses out on 14 years of benefits.

[00:19:01] Speaker 00:
Mr. Mangow, however, has not shown that there is any clear and unstable error in the boards

[00:19:06] Speaker 00:
a 1982 decision.

[00:19:07] Speaker 00:
It was based on the diagnoses at the time, and this asserted error would have occurred on the record as it existed at the time.

[00:19:18] Speaker 00:
Mr. Mandibov has only disagreed with how the facts were weighed or evaluated by the board in 1982, and that can't be the basis for Q under 38 CFR 20.1403 D3.

[00:19:33] Speaker 00:
And in this case,

[00:19:36] Speaker 00:
Mr. Ranigo has perhaps asserted that the new medical diagnosis in 2008 is what's demonstrating that the board's decision in 1982 contained a cue.

[00:19:49] Speaker 00:
However, a new medical diagnosis also can't show any clear and unmistakable error.

[00:19:56] Speaker 01:
And I think, again, the... How about the 2012 board decision?

[00:20:06] Speaker 01:
2012 board decision that allowed... Why couldn't that be a demonstration that the 82 ruling was clear and unstatable?

[00:20:17] Speaker 00:
Because the 2012 board decision wouldn't have been part of the record at the time it existed at the time of the disputed adjudication in 1982.

[00:20:26] Speaker 01:
But it's a diabetically opposing ruling.

[00:20:32] Speaker 00:
However, a cue has to be based on an error

[00:20:36] Speaker 00:
on the record as it occurred.

[00:20:38] Speaker 01:
Wasn't that true there was an error on the record?

[00:20:42] Speaker 00:
It was because the 2012 decision came well after the... I know when it came, but the picture that he had all the way back.

[00:20:53] Speaker 01:
So doesn't that in and of itself mean they were wrong in 82?

[00:20:57] Speaker 00:
No, Your Honor, because the diagnosis and the

[00:21:03] Speaker 00:
It would be, again, a disagreement with how the facts were weighed in 1982.

[00:21:07] Speaker 00:
The 2012 Board decision... Well, the Reference Court really didn't get into this much, did they?

[00:21:13] Speaker 00:
No, Your Honor.

[00:21:14] Speaker 01:
Maybe they should.

[00:21:16] Speaker 00:
Well, again, Q is not something that can be shown by a disagreement on how the facts were weighed.

[00:21:22] Speaker 00:
The 2012 Board decision is simply weighing new medical evidence derived from a 2008 medical examination.

[00:21:31] Speaker 00:
It wouldn't have been before the Board.

[00:21:32] Speaker 00:
in 1982, there can't be any showing of clear and unmistakable evidence, clear and unmistakable error in 1982.

[00:21:41] Speaker 00:
And the court has no further questions?

[00:21:46] Speaker 00:
No, we don't.

[00:21:47] Speaker 02:
Thank you very much.

[00:22:00] Speaker 02:
Mr. Stultz will give you two minutes for rebuttal.

[00:22:03] Speaker 03:
Thank you, Your Honor.

[00:22:06] Speaker 03:
This is not a factual inquiry at the end of the day.

[00:22:08] Speaker 03:
This is a legal inquiry.

[00:22:10] Speaker 03:
The bottom line is that in 1982, the Board of Veterans' Appeals did not even apply relevant extant law, which was 3.303.

[00:22:18] Speaker 03:
They didn't even apply it.

[00:22:20] Speaker 03:
The Veterans Court's error here is in excusing that failure to apply a relevant regulation, a regulation that had it been applied.

[00:22:30] Speaker 03:
And here comes the clear and unmistakable error in the misinterpretation of law.

[00:22:33] Speaker 03:
had been applied, the presumption would have attached to Mr. Manigault, and he would have read the plain language of 3.303, seen his diagnosis in service based on established medical principles, seen his diagnosis after service based on accepted medical principles, and ended the inquiry.

[00:22:51] Speaker 03:
The presumption would have attached Mr. Manigault would have been awarded service connection and compensation for schizophrenia.

[00:22:58] Speaker 03:
It did not do so.

[00:22:59] Speaker 03:
The factual stuff is a red herring here.

[00:23:03] Speaker 03:
had the board properly interpreted and applied the law, it would have manifestly affected the outcome.

[00:23:11] Speaker 03:
The Veterans Sports Center is an excuse for that.

[00:23:13] Speaker 03:
Thank you, Your Honor.

[00:23:14] Speaker 02:
Thank you.