[00:00:03] Speaker 01:
Don't forget to return those stick-on arrows.

[00:00:36] Speaker 03:
Mr. Allen, if you're ready.

[00:00:41] Speaker 00:
Good morning, Your Honors.

[00:00:42] Speaker 00:
My name is Barry Allen.

[00:00:43] Speaker 00:
I'm the attorney for the appellant Marlon Rice.

[00:00:46] Speaker 00:
At the outset, I want to put Mr. Rice's due process claims in context.

[00:00:50] Speaker 03:
Lower your voice a little.

[00:00:51] Speaker 00:
I apologize, Your Honor.

[00:00:53] Speaker 00:
The VA disability claims process has been described at various times as non-adversarial, paternalistic, uniquely pro-claimant, and benevolent.

[00:01:04] Speaker 00:
Mr. Rice was declared incompetent

[00:01:06] Speaker 00:
by the VA from March of 1984 to July of 2010.

[00:01:10] Speaker 00:
This court recognized in French versus OPM that a candid assessment of the position of an incompetent in our society is that he is disadvantaged.

[00:01:22] Speaker 00:
This court in Edwards versus Shinseki determined that in some cases a mentally disabled applicant, known to be so disabled by VA, may receive additional

[00:01:34] Speaker 00:
extraordinary precautions because of that incompetency.

[00:01:38] Speaker 00:
Now we have no question in this case that Mr. Rice was incompetent and that it was known to the VA because the VA declared his incompetency in 1984 and was aware of that incompetency all the way until it cleared his competency in 2010.

[00:01:54] Speaker 00:
The Board of Veterans' Appeals made at least 18 and probably significantly more

[00:02:02] Speaker 00:
negative credibility determinations about Mr. Rice during his 26-year period of incompetency.

[00:02:10] Speaker 00:
The board never mentioned his incompetency in their decision.

[00:02:16] Speaker 00:
And the Court of Veterans' Appeals simply indicated in a dismissive comment, essentially, that Mr. Rice was arguing that the board made improper credibility findings and the court said

[00:02:30] Speaker 00:
We don't agree.

[00:02:32] Speaker 03:
I'm sure you're well aware of our limited standard of review.

[00:02:35] Speaker 03:
And it strikes me, and you can push back if you wish, that this is really an assessment or an evaluation.

[00:02:42] Speaker 03:
The board got it wrong.

[00:02:43] Speaker 03:
They put too much weight on this and not enough weight on that.

[00:02:46] Speaker 03:
I mean, as you well know, we don't have the jurisdiction to review that.

[00:02:52] Speaker 03:
So is your argument somehow that because your client, there were questions about his competency,

[00:03:00] Speaker 03:
that that gives us the jurisdiction to review and reevaluate the board's findings, factual findings?

[00:03:07] Speaker 00:
That's correct, Your Honor.

[00:03:08] Speaker 03:
And what are we supposed to do with that?

[00:03:10] Speaker 03:
So we're supposed to reevaluate all the factual findings with the assumption that he was incompetent.

[00:03:18] Speaker 03:
And what do we then do?

[00:03:20] Speaker 03:
Do we exclude all of his testimony?

[00:03:22] Speaker 03:
What do we do with the facts?

[00:03:24] Speaker 03:
I mean, one, how can we do that with the facts?

[00:03:26] Speaker 03:
And two, what would you have us do, even if we could?

[00:03:29] Speaker 00:
Your honor, it's our contention that if someone is determined to be incompetent by the VA, for the VA to take affirmative actions to question that person's credibility is a due process violation.

[00:03:43] Speaker 03:
But the evidence here, I mean, the evidence here was based on the medical assessments at various periods of time.

[00:03:50] Speaker 03:
I don't see, I mean, you want to point us to the CAVC decision and the board decision where a substantial aspect of this rested

[00:03:58] Speaker 03:
on a credibility determination of your client?

[00:04:01] Speaker 00:
I'll give you at least one.

[00:04:03] Speaker 00:
I'll give you two.

[00:04:05] Speaker 00:
This is page 103 of the appendix.

[00:04:10] Speaker 00:
The record also reflects that the veteran has had difficulties with his memory.

[00:04:14] Speaker 00:
Hold on one second.

[00:04:14] Speaker 00:
Just give me a chance.

[00:04:15] Speaker 03:
This is the board opinion.

[00:04:17] Speaker 03:
103, you said?

[00:04:18] Speaker 00:
Yes, ma'am.

[00:04:22] Speaker 00:
OK.

[00:04:22] Speaker 00:
The record also reflects that the veteran has had difficulties with his memory.

[00:04:26] Speaker 00:
which weighs against the finding that his recent assertions made pursuant to the current claim should be given value over the various more contemporaneous in-service and post-service histories.

[00:04:38] Speaker 00:
And our contention is that when they start picking up the references to the post-service histories, they're picking up that entire period of time when he was incompetent.

[00:04:47] Speaker 00:
The board went on to say, not only may the veteran's memory be less than reliable,

[00:04:53] Speaker 00:
including with the passage of time.

[00:04:55] Speaker 03:
No, but I guess maybe I misspoke.

[00:04:58] Speaker 03:
I was talking about what in the record, the evaluation of the evidence that led the board to its conclusion, where is that showing that they relied on his testimony?

[00:05:12] Speaker 00:
It wasn't his testimony at the board.

[00:05:13] Speaker 00:
The issue was that they relied on statements that he either made or didn't make or things that he did or didn't do

[00:05:21] Speaker 00:
during the period of the incompetency.

[00:05:23] Speaker 00:
The question is not about his testimony at the board.

[00:05:25] Speaker 00:
The question is that they had a negative view of his credibility based on all of the determinations that they made against him during that 26-year period of incompetency.

[00:05:37] Speaker 01:
Well, when they say first came up with the story, that's after the incompetency.

[00:05:42] Speaker 01:
Is that correct?

[00:05:44] Speaker 00:
There's some indication that they think that he may have come up with it starting in the 2005 and 2008 time frame.

[00:05:50] Speaker 00:
when he allegedly first said something about his inguinal hernia.

[00:05:55] Speaker 00:
And that is during the period of incompetency.

[00:05:57] Speaker 00:
Now, we would question that whole reference because the position that we have asserted is if you're going to use everything that he said or didn't say or did or didn't do during his period of incompetency, you've denied him due process.

[00:06:12] Speaker 00:
Now, Your Honor, to go back to your specific point.

[00:06:14] Speaker 03:
Yeah, because I'm looking at the pages of the

[00:06:17] Speaker 03:
the board's opinion, and there's a lot of reliance, it seems to me, on the entire medical history here, right?

[00:06:26] Speaker 03:
I mean, not his statements, but the medical evaluations, service treatment records, right?

[00:06:37] Speaker 00:
There is a reliance on bits and pieces of the medical record.

[00:06:41] Speaker 00:
There is not a reference to that part of the medical record that is favorable

[00:06:46] Speaker 00:
to Mr. Rice, they diminish and don't discuss a lot of that.

[00:06:50] Speaker 00:
But to get to your specific point, Your Honor, if you have someone who is incompetent, and we have said that that person is someone who is disadvantaged in the system, and we have to give that person extraordinary special protections, how do we go about doing that?

[00:07:06] Speaker 00:
You could make a bright line test and say that any efforts to challenge the credibility of an incompetent who is known to be such by the VA

[00:07:15] Speaker 00:
would be inappropriate.

[00:07:16] Speaker 00:
Or you can take a step back and simply say, we're going to say that there is something about challenging his credibility that is not appropriate.

[00:07:25] Speaker 00:
And the question is, how many of those things are appropriate?

[00:07:29] Speaker 00:
You get into a sliding scale.

[00:07:30] Speaker 00:
You could say, for example, we'll allow four things that are challenges to the credibility.

[00:07:35] Speaker 00:
And that's OK from a due process standpoint.

[00:07:38] Speaker 00:
But we won't allow eight.

[00:07:39] Speaker 00:
Now, our position would be that that gets into an arbitrary weighing when you're dealing with someone who is incompetent.

[00:07:45] Speaker 00:
And you're not giving that person any extraordinary protections because of the incompetency.

[00:07:51] Speaker 01:
So it's better to have... Well, what you're arguing for is simply entirely ignoring his testimony.

[00:07:59] Speaker 00:
No, I'm not suggesting that, Your Honor.

[00:08:00] Speaker 00:
I am suggesting that you shouldn't be making negative determinations about his testimony.

[00:08:06] Speaker 00:
If you're going to give him any additional protections and he's incompetent, then you have to say that... You have to believe what he says.

[00:08:15] Speaker 00:
or not believe it, but don't attack his credibility.

[00:08:17] Speaker 00:
You can say, I'm not going to believe it because of some other reason.

[00:08:22] Speaker 00:
But if you say, I'm not going to believe it because I don't believe he's credible, and you're saying that during his period of incompetency, you have, in essence, denied him due process.

[00:08:33] Speaker 03:
Well, I'm looking at the board opinion, and I'm trying to find where they rested in large part entirely, or in some part,

[00:08:42] Speaker 03:
on the credibility as opposed to all these medical records.

[00:08:45] Speaker 03:
So you're saying the medical records come out because if they were based on an examination and he was incompetent during the examination?

[00:08:53] Speaker 03:
I'm not following.

[00:08:55] Speaker 03:
I mean, you keep on saying you can't rely on anything to do with his credibility.

[00:09:00] Speaker 03:
But what about the rest of the stuff?

[00:09:02] Speaker 00:
The rest of the stuff certainly stays in, Your Honor.

[00:09:04] Speaker 00:
But if you view the problem that we have taken issue with, we have asserted that

[00:09:11] Speaker 00:
All of their view of this medical evidence and testimony is infused with their view of his credibility.

[00:09:18] Speaker 00:
They're not inseparable.

[00:09:20] Speaker 03:
Well, I know you've taken that position, but can you point us to the record of findings and show us why that's so?

[00:09:28] Speaker 00:
Well, take Dr. Bernard's opinion, Your Honor.

[00:09:31] Speaker 00:
Dr. Bernard was the board-certified internist who determined that Mr. Rice did not have an epigastric hernia in service, that he had an inguinal hernia.

[00:09:40] Speaker 00:
Now, Dr. Bernard also took x-rays, and those x-rays very clearly showed that there was no epigastric hernia.

[00:09:50] Speaker 03:
Well, can you point us to the... I mean, we're not finding facts here, and you're not testifying, obviously.

[00:09:57] Speaker 03:
So can you show us, point us to what you're talking about in terms of the board's reliance on that testimony?

[00:10:01] Speaker 03:
Just one second, Your Honor.

[00:10:11] Speaker 00:
When I set out on page 15 of the reply brief, the beginnings of the negative credibility determinations that the board made.

[00:10:23] Speaker 00:
And that also continues through page 16 and references especially Appendix 49, which was my brief before the Court of Appeals for Veterans Claim.

[00:10:33] Speaker 00:
And there are at least 18 circumstances listed beginning on page 15 of that reply brief where the board

[00:10:41] Speaker 00:
made negative credibility determinations that impacted how they viewed what had happened medically before.

[00:10:50] Speaker 00:
Our position is that before you get into the medical determination, if you're dealing with Edwards, Edwards said there's going to be certain circumstances where we're going to want to give extraordinary protections to the veteran.

[00:11:05] Speaker 00:
And if we're going to do that, we have to have some knowledge that he's incompetent and that the VA has to know that.

[00:11:11] Speaker 00:
At what point in time does he become competent again?

[00:11:13] Speaker 00:
He became competent again in 2010, Your Honor.

[00:11:17] Speaker 01:
So the essence of your argument is that when he said, I don't remember, while he was incompetent, it can't be weighed against him saying, I have a specific recollection now because now he's competent.

[00:11:35] Speaker 01:
Correct.

[00:11:35] Speaker 01:
That's the core of your argument, is it not?

[00:11:38] Speaker 00:
It is, in essence, that if they're taking information during the period of incompetency and they are using it to negatively determine whether that he is credible, whether it's because of information after his incompetency has been ended, or otherwise, if they're using the information from that period of incompetency and they're doing so in a negative way, they deny him due process.

[00:12:02] Speaker 01:
But there's a lot of other evidence.

[00:12:04] Speaker 01:
that they have in addition to that dichotomy.

[00:12:08] Speaker 01:
They have a lot of medical records as well.

[00:12:11] Speaker 01:
And that's what you're asking us to weigh against.

[00:12:14] Speaker 00:
Your Honor, they ignored favorable evidence.

[00:12:18] Speaker 00:
And our contention is that, in part, they did that because they were so focused on his credibility issues that they weren't going to discuss these other issues.

[00:12:27] Speaker 00:
I'm in my reporter time.

[00:12:28] Speaker 03:
Why don't we hear from the governor?

[00:12:37] Speaker 02:
Thank you, support.

[00:12:42] Speaker 02:
We ask that this court dismiss this appeal for lack of jurisdiction, although Mr. Rice has raised what he characterizes as a due process claim.

[00:12:51] Speaker 02:
In the government's view, that due process claim is one and name only.

[00:12:53] Speaker 02:
That what Mr. Rice is seeking is this panel's re-adjudication of factual determinations, which is not within the province of this court's jurisdiction.

[00:13:01] Speaker 03:
Why isn't it kind of a legal question?

[00:13:04] Speaker 03:
I mean, forget the words due process, but a legal question.

[00:13:07] Speaker 03:
If indeed the question is whether or not during a period of incompetence, you can then rely on or hold anything against the defendant that he said or didn't say during a period that it's undisputed he was incompetent.

[00:13:20] Speaker 03:
Why isn't that kind of a quasi-legal issue?

[00:13:23] Speaker 02:
Respectfully, Your Honor, we would say that it wouldn't be a legal issue, one, because there is no law on that issue.

[00:13:30] Speaker 02:
There is no law that Mr. Rice has cited to or that we can identify that would

[00:13:37] Speaker 02:
suggest that this court can ignore or reweigh testimony in the manner that Mr. Rice is suggesting.

[00:13:45] Speaker 02:
But even if that law did exist, how the Veterans Court and the board would have applied that law to Mr. Rice's case would be the application of law to fact, which would also fall outside of this court's jurisdiction.

[00:13:56] Speaker 01:
Well, would you agree that the board cannot fairly take

[00:14:05] Speaker 01:
an incompetent person's statement that I don't remember and weigh it against a later statement after he is competent saying, why specifically remember this?

[00:14:22] Speaker 02:
The weighing of evidence, of credibility, of determining what evidence has more probed value than another is something uniquely within the providence of the board and the Veterans Court.

[00:14:32] Speaker 02:
In the example that you've cited, which does harken back to the record in this case, what the board and the Veterans Court ultimately found was that the testimony that Mr. Rice had given in a period when he was competent, he gave that testimony in 2012 after being declared incompetent in 2010,

[00:14:50] Speaker 02:
that that testimony about facts and circumstances that had occurred more than 40 years earlier was less credible than the multiple contemporaneous specific clinical findings.

[00:15:02] Speaker 01:
I already said that to your opposing counsel, but you're not answering my question.

[00:15:08] Speaker 01:
My question is very simple.

[00:15:11] Speaker 01:
Would you agree that as a matter of law, the board cannot weigh

[00:15:18] Speaker 01:
a statement made by someone who is incompetent at all against a later statement made when that person is competent to contrast them and say, we disbelieve you because you have contrary statements.

[00:15:34] Speaker 01:
That's a question of evidence.

[00:15:36] Speaker 01:
It is a question of law about evidence.

[00:15:39] Speaker 02:
Respectfully, Your Honor, as we have seen, the law due process requires an opportunity to be heard in a meaningful time and in a meaningful manner.

[00:15:47] Speaker 02:
We're not aware of any law that says that a board or the veterans... I'm not talking about due process.

[00:15:53] Speaker 01:
I'm talking about evidentiary law.

[00:15:55] Speaker 01:
That is, of course, taught in law school, is it not?

[00:15:57] Speaker 02:
Yes.

[00:15:59] Speaker 01:
Do you agree or disagree with me on that point?

[00:16:04] Speaker 01:
You want me to say it again?

[00:16:04] Speaker 02:
No.

[00:16:05] Speaker 02:
Yes, Your Honor, I understand.

[00:16:08] Speaker 02:
I think it's a nuanced factual question.

[00:16:11] Speaker 02:
I think that

[00:16:13] Speaker 02:
It is the board's statutory obligation to weigh all of the evidence in the record.

[00:16:19] Speaker 02:
And admittedly, Your Honor, a statement made while an individual is incompetent, as you have suggested, would not be given the kind of weight that a statement later given when competent would receive.

[00:16:33] Speaker 02:
And in this case, you are correct that the record does, the board and the Veterans Court did make note

[00:16:41] Speaker 02:
that earlier during Mr. Rice's incompetency, he stated he didn't remember when Guinalhernia occurred.

[00:16:51] Speaker 02:
But that was one small comment in a much larger discussion.

[00:16:55] Speaker 01:
I'm not saying.

[00:16:56] Speaker 01:
I already raised this to your opposing counsel.

[00:17:00] Speaker 01:
I'm not saying that there's not other evidence, which certainly is arguably sufficient.

[00:17:07] Speaker 01:
I'm asking simply that limited question.

[00:17:14] Speaker 01:
As a matter of law, may the board use as evidence statements made by someone who is incompetent to refute statements made when that person later is competent?

[00:17:38] Speaker 02:
Yes, Your Honor, I believe I can.

[00:17:40] Speaker 01:
What's your authority?

[00:17:42] Speaker 02:
I don't have any with me at present.

[00:17:45] Speaker 02:
It was not an issue that the parties briefed in there.

[00:17:49] Speaker 01:
I think it's the core of your opposing counsel's argument, even though I think it's extraneous because of the weight of the other evidence.

[00:18:03] Speaker 01:
But I think it's the core of his argument.

[00:18:06] Speaker 01:
So I expected an answer.

[00:18:10] Speaker 02:
Your Honor, I can only suggest that

[00:18:12] Speaker 02:
The law that we have cited and discussed in our briefs pertains to what is ultimately the concern before this Court, is whether or not there was a due process violation, because that's what would bring this matter within the province of the Court's jurisdiction.

[00:18:27] Speaker 02:
That would require... No.

[00:18:29] Speaker 01:
If there was a violation of law, it would also bring it within our jurisdiction.

[00:18:35] Speaker 01:
We may not determine questions of fact.

[00:18:45] Speaker 02:
Respectfully, what we have here is Mr. Rice's testimony in 2012, given when he was competent.

[00:18:52] Speaker 02:
He does recall.

[00:18:54] Speaker 01:
Which contradicts the records.

[00:18:56] Speaker 02:
Yes.

[00:18:58] Speaker 01:
And the court pointed out, the board pointed out, that's fine.

[00:19:04] Speaker 01:
I'm not arguing with you about that.

[00:19:14] Speaker 02:
unless the court has any other questions.

[00:19:27] Speaker 00:
Thank you.

[00:19:27] Speaker 00:
Your Honors, in terms of what the government is arguing, they have asserted that there's no legal argument here.

[00:19:34] Speaker 00:
And I think, as you have pointed out, Your Honor, that there is weak contended constitutional argument.

[00:19:41] Speaker 00:
You're framing it as an evidentiary issue.

[00:19:44] Speaker 00:
But our position is that there has to be some.

[00:19:46] Speaker 01:
But in either case, I'm also saying it's irrelevant.

[00:19:50] Speaker 00:
Well, Your Honor, we would contest that it's not irrelevant.

[00:19:53] Speaker 00:
And we would say that it's relevant because the negative credibility determination so infused the board's decision and the court's decision.

[00:20:03] Speaker 03:
You said that before you sat down, and now you're saying it again.

[00:20:06] Speaker 03:
And I keep looking at the board decision, and you say that it infused it.

[00:20:11] Speaker 03:
But there's just paragraph after paragraph

[00:20:13] Speaker 03:
citing the medical record in this case.

[00:20:16] Speaker 03:
Now, your assumption is that it infused everything the board did, but I don't understand how one, we can review that or two, we can do anything about it when it's not here in black and white and it's your view that it infused everything, but there's

[00:20:32] Speaker 03:
not an indication that it did.

[00:20:34] Speaker 00:
Your Honor, we believe that we did indicate that in our briefs, that we've indicated... Well, I know what you're saying, but I'm looking at the board's decision.

[00:20:41] Speaker 03:
So you're drawing a conclusion that when the board recites paragraph after paragraph concerning the medical records and the testimony of physicians, that the board's crediting that was infused by the credibility.

[00:20:55] Speaker 03:
And I don't know how we're supposed to get to that.

[00:20:59] Speaker 01:
Especially given that they separately discuss it.

[00:21:03] Speaker 00:
But they also don't discuss the positive evidence.

[00:21:05] Speaker 00:
So for example, we know that there was a CAT scan of Mr. Rice's abdomen.

[00:21:10] Speaker 00:
And that CAT scan was of his abdomen, which should have shown that there was an epigastric hernia if there was one.

[00:21:17] Speaker 00:
But there wasn't any indication on the CAT scan of an epigastric hernia.

[00:21:22] Speaker 00:
There was an indication of an inguinal hernia.

[00:21:24] Speaker 00:
We would contend that that's substantive negative evidence.

[00:21:28] Speaker 00:
But the reality is that what the government has done is

[00:21:31] Speaker 00:
They've ignored the most important part of Mr. Rice's record before them.

[00:21:37] Speaker 00:
And that was his 26-year period of incompetency.

[00:21:39] Speaker 00:
And when it came down to it, when the government says, why is that the most important part of the medical record?

[00:21:46] Speaker 00:
Because there has to be some recognition that a disadvantaged incompetent, as the court said in French, should be given some extraordinary additional protections, as this court said in Edwards.

[00:22:00] Speaker 00:
So where do you get those extraordinary additional protections?

[00:22:03] Speaker 01:
Well, let's unplug that 26-year period.

[00:22:05] Speaker 01:
Yes, sir.

[00:22:06] Speaker 01:
Evidence at one end, evidence at the other end, and they weigh it.

[00:22:12] Speaker 01:
And they say the weight of the evidence at the later end is outweighed by the evidence at the beginning where you had medical records showing what was done.

[00:22:26] Speaker 00:
What's wrong with that?

[00:22:28] Speaker 00:
Well, there's two things.

[00:22:30] Speaker 00:
When you said unplug that incompetency period, the difficulty is that that should have a thumb on the scale.

[00:22:40] Speaker 00:
The thumb is you unplugged it.

[00:22:43] Speaker 00:
But if you're unplugging it and you're saying that he had no incompetence at all, that would be one thing.

[00:22:50] Speaker 00:
But we can't ignore the fact that he had a 26-year period of incompetency.

[00:22:54] Speaker 01:
No, we're saying that none of the testimony

[00:22:58] Speaker 01:
that's pro-offered from him during that period can be used against him.

[00:23:03] Speaker 00:
Your Honor, when he was first discharged, the discharge board said that he was discharged for three reasons.

[00:23:08] Speaker 00:
An epigastric hernia, and they mentioned that he had knee surgery and that he was a bleeder related to the knee surgery.

[00:23:15] Speaker 00:
And the reality was, he never had knee surgery.

[00:23:18] Speaker 00:
So you have, which means he was never a bleeder, and they then said throughout the record, well, you know, because he couldn't be believed when he first made his claim,

[00:23:28] Speaker 00:
for a hernia that he was told he had and he had a ninth grade education and didn't know any better, we're going to just take into account that he really didn't know what he said and didn't know what he was complaining of.

[00:23:41] Speaker 00:
But the reality is he had a hernia, which all of the medical records that are favorable to him show he never had.

[00:23:49] Speaker 00:
He's never had an epigastric hernia.

[00:23:52] Speaker 01:
I'm into my initial time.

[00:23:53] Speaker 01:
How far did he get through his training?

[00:23:58] Speaker 01:
He was about three or four months, Your Honor.

[00:24:01] Speaker 01:
And was he through basic and into advanced training?

[00:24:04] Speaker 01:
He was into advanced training, yes, sir.

[00:24:08] Speaker 00:
In conclusion, Your Honors, what we would like to suggest is that this is a case of first impression, that the issue of Mr. Rice's credibility during his acknowledged period of incompetency is something that relates to his due process rights, and we would request that you reverse the CABC, find that he had a service connected in Guadalajara,

[00:24:27] Speaker 00:
not in epigastric hernia, and remand to the court so that proper percentages of disability can be determined.

[00:24:34] Speaker 03:
Thank you, Your Honor.