[00:00:00] Speaker 02:
Good morning, everyone, and be seated.

[00:00:03] Speaker 02:
I'm very pleased that we shall start with an admission.

[00:00:09] Speaker 02:
Sakon, would you approach the podium?

[00:00:12] Speaker 02:
And Judge Clevinger, I invite you to make a motion.

[00:00:15] Speaker 02:
Thank you very much.

[00:00:20] Speaker 05:
I move the admission to the bar of our court of Eric Ross Cohen.

[00:00:26] Speaker 05:
as a member of the bar and is in good standing in the highest court of the state of Delaware.

[00:00:31] Speaker 05:
I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications.

[00:00:38] Speaker 05:
I am qualified to make this declaration because Ross Cohen is currently my law clerk and has served in that position for the last year.

[00:00:52] Speaker 05:
He's about to leave and go off to private practice.

[00:00:55] Speaker 05:
We will miss him greatly.

[00:00:57] Speaker 05:
He has served with distinction and great skill.

[00:01:03] Speaker 05:
And it's been of great value to me and to the court.

[00:01:08] Speaker 05:
And so I thank him for his service.

[00:01:10] Speaker 05:
And I wish him the best in the future.

[00:01:13] Speaker 05:
And I hope that my colleagues will find it possible to grant this motion.

[00:01:20] Speaker 02:
Thank you, Judge Clevinger.

[00:01:22] Speaker 02:
The panel will vote on whether to grant the motion.

[00:01:25] Speaker 02:
What say you, Judge Chen?

[00:01:29] Speaker 04:
I'm also familiar with Mr. Cohen's credentials, because I reviewed them when he applied to clerk for me a couple of years ago.

[00:01:36] Speaker 04:
And he ultimately decided to go a different way.

[00:01:40] Speaker 04:
But I do know he has excellent credentials and on the strength

[00:01:50] Speaker 04:
Judge Clevenger's recommendation.

[00:01:51] Speaker 04:
I vote to phrase approval.

[00:01:55] Speaker 02:
And I join the vote.

[00:01:57] Speaker 02:
Welcome.

[00:01:58] Speaker 02:
Welcome to the bar of this court.

[00:02:00] Speaker 02:
Please approach the clerk to administer the oath.

[00:02:14] Speaker 03:
I do.

[00:02:16] Speaker 03:
Congratulations.

[00:02:18] Speaker 02:
Thank you.

[00:02:19] Speaker 02:
Welcome to the bar.

[00:02:20] Speaker 02:
We look forward to seeing you in a more active role in the near future.

[00:02:25] Speaker 02:
Meanwhile, the best of everything to you.

[00:02:28] Speaker 02:
We shall proceed with the morning's arguments.

[00:02:32] Speaker 02:
The first argument this morning is number 16-2401, Ruff and McGinn-Shulkin.

[00:02:49] Speaker 01:
Good morning, Your Honors.

[00:02:51] Speaker 01:
Lynn Nooner of Simpson, Thatcher, and Bartlett, with the privilege of representing Mr. Washington Ruffin as appellant in this appeal.

[00:02:59] Speaker 01:
Your Honors, there are two legal issues for your review in this matter.

[00:03:05] Speaker 01:
The first addresses whether the Veterans Court misunderstood the VCAA's statutory framework when it endorsed the VA's fundamentally flawed process here

[00:03:18] Speaker 01:
of penalizing a veteran, Mr. Ruffin, when the VA could not locate his service medical records.

[00:03:26] Speaker 01:
The second legal issue for this Court is whether the Veterans Court adopted a non-rebuttable presumption against the delayed onset of hearing loss based on a 2006 Institute of Medicine panel opinion.

[00:03:43] Speaker 01:
The

[00:03:44] Speaker 01:
presumption, in our view, misinterprets legal precedents and statutes requiring consideration of medical and lay evidence.

[00:03:53] Speaker 02:
So you're saying that since the records couldn't be found, there is a presumption or an assumption that they had a certain content that would have supported Mr. Ruffin?

[00:04:05] Speaker 01:
Judge Newman, we are not even going that far.

[00:04:09] Speaker 01:
We are not asking for an affirmative presumption in our favor due to the absence of Mr. Ruffin's medical records.

[00:04:17] Speaker 01:
The secretary would have you believe that we're asking for an affirmative presumption, but I'd like to be clear, we are not.

[00:04:23] Speaker 01:
We are simply asking for the negative presumption against Mr. Ruffin to be removed.

[00:04:31] Speaker 01:
Here, the records were regrettably lost.

[00:04:35] Speaker 01:
I will stipulate that as a result of Mr. Edelschek's intervention at this appeal, there was a subsequent search, and one more record was found, Mr. Ruffin's initial medical examination in May of 1972.

[00:04:54] Speaker 05:
However... Which is not probative, right?

[00:04:57] Speaker 01:
Yes, Your Honor, that's right.

[00:04:58] Speaker 05:
They made an effort to look and...

[00:05:01] Speaker 05:
I suppose from their view, there's a reception that there's nothing else there.

[00:05:05] Speaker 01:
And your honor?

[00:05:06] Speaker 05:
My response from your view is, well, they've now twice gone back and looked and each time found one thing, right?

[00:05:13] Speaker 01:
That is true.

[00:05:14] Speaker 01:
Both times.

[00:05:15] Speaker 05:
What are we to make of that?

[00:05:17] Speaker 05:
You're not arguing that there's a failure of the duty to assist?

[00:05:21] Speaker 01:
That's true.

[00:05:22] Speaker 01:
To be honest, I think that the Veterans Affairs at this point has satisfied their statutory compliance

[00:05:29] Speaker 01:
We've received a certification, and we are satisfied with that.

[00:05:35] Speaker 05:
This is not the first case in which we've dealt with the problem of absence of in-service medical records.

[00:05:43] Speaker 05:
And we've held that there isn't any presumption one way or the other, actually.

[00:05:48] Speaker 05:
Agreed.

[00:05:49] Speaker 05:
And so your view is that in this case, there seems to be some type of a presumption that's working against your client.

[00:05:56] Speaker 01:
Exactly, Judge Clavin.

[00:05:57] Speaker 05:
But I don't quite understand

[00:06:00] Speaker 05:
what it is you want us to do.

[00:06:02] Speaker 05:
If we grant the fact that the duty to assist was satisfied, then it's an unfortunate case where the historic records, except for just the going into the service, are absent.

[00:06:15] Speaker 05:
We have a record that has facts in it, and the facts in it on both of the issues, both the hearing loss and the sleep issue.

[00:06:25] Speaker 05:
There seem to me to be data points that would support the result that you're

[00:06:30] Speaker 05:
appealing to them.

[00:06:32] Speaker 05:
So I don't quite know how I'm supposed to help your side since this vacuum seems to exist, but the vacuum is seemingly irrelevant.

[00:06:48] Speaker 01:
Your Honor, I follow you completely.

[00:06:50] Speaker 01:
And the request for relief is a vacator of the Veterans Court's decision and a remand for due consideration

[00:06:59] Speaker 01:
of the medical and lay evidence submitted by Mr. Ruffin without the overlay of this categorical presumption against him that delayed onset of hearing loss cannot be established.

[00:07:15] Speaker 01:
And I will add to this that this Institute of Medical Opinion.

[00:07:20] Speaker 05:
Have we actually held that there isn't any such thing as a delayed onset of medical hearing loss?

[00:07:29] Speaker 05:
I thought I read cases that have dealt with that argument before, where the problem is that someone serves and is exposed to noise and that sort of thing.

[00:07:39] Speaker 05:
And then later on, after their service, they say, well, my hearing loss began in service, but with no evidence of it occurring in service.

[00:07:50] Speaker 01:
Exactly.

[00:07:51] Speaker 01:
So Hensley did deal with this exact situation, and Gendreau is an excellent post

[00:07:57] Speaker 01:
Hensley decision applying it.

[00:08:00] Speaker 01:
And here is where it comes in directly for you on Mr. Ruffin's case.

[00:08:05] Speaker 01:
In Hensley, the court said, you cannot categorically reject delayed onset because there was a normal audiometric evaluation upon discharge.

[00:08:17] Speaker 05:
We do.

[00:08:18] Speaker 05:
Let's be certain we know where Hensley is a CABC opinion.

[00:08:23] Speaker 05:
Yes, Your Honor.

[00:08:24] Speaker 05:
That has never been adopted by this court.

[00:08:28] Speaker 05:
Right?

[00:08:29] Speaker 01:
That is true, Your Honor.

[00:08:30] Speaker 01:
But Gendreau.

[00:08:31] Speaker 05:
I just want to make sure that I understand the body of precedent that you're relying on.

[00:08:34] Speaker 01:
That's fair.

[00:08:36] Speaker 01:
Hensley is Veterans Court.

[00:08:38] Speaker 01:
But then Gendreau, which is the one I referred to, which is the Federal Circuit 2007, which picks up the Hensley strain and says that lay evidence may be used to establish service connection, especially when the service medical records have not been found.

[00:08:55] Speaker 01:
I would submit that Gendreau is the best decision in our favor.

[00:09:00] Speaker 01:
And what we are asking for here is a remand to allow due consideration of both the late testimony submitted by Mr. Ruffin, his wife, and his son.

[00:09:11] Speaker 05:
But that testimony was considered already.

[00:09:15] Speaker 01:
It was accounted for, but then it was frankly disregarded.

[00:09:20] Speaker 01:
And I would submit that it was disregarded categorically on the basis, and you see this in the Veterans Court's opinion, that none of them were competent to establish causation.

[00:09:30] Speaker 05:
This is an indication in which there are data points later on after service when the veteran is examined and found not to have any hearing loss problems.

[00:09:38] Speaker 01:
That is absolutely true, but what you also... And that's not helpful to your case.

[00:09:43] Speaker 01:
Not helpful, but not dispositive.

[00:09:46] Speaker 04:
There were audiograms in 1980 and 1998 and 1999, right?

[00:09:49] Speaker 01:
Yes, Judge Chen.

[00:09:50] Speaker 04:
Ultimately, in each of those post-service audiograms, it was found that his hearing was normal during those times.

[00:09:59] Speaker 01:
Normal, but trending in a negative direction.

[00:10:02] Speaker 04:
And why I say these normal... But I guess the concern I have is you're here because you need to make a legal argument, right?

[00:10:11] Speaker 01:
That is true.

[00:10:12] Speaker 04:
You can't argue about the facts and now here we are trying to locate where it is in the decisions where there is some kind of legal presumption that the decision makers made against

[00:10:30] Speaker 04:
against your client on the count that there were no service medical records during his time of service.

[00:10:36] Speaker 04:
I mean, I'll just tell you right now, when I looked at those decisions, I didn't see anywhere where, obviously, they didn't say anything like that, that they were making a legal presumption.

[00:10:48] Speaker 04:
Instead, what I saw was decision makers weighing all the various data points they had, including the lay testimony from Mr. Ruffin, Mr. Ruffin's wife, Mr. Ruffin's child.

[00:11:00] Speaker 04:
and ultimately concluding that there was no service connection for delayed hearing loss or for sleep apnea.

[00:11:07] Speaker 04:
So I think what I need is some help from you to point me to something that can satisfy me that there was, in fact, an improper legal presumption applied against your client.

[00:11:20] Speaker 01:
Let me do that.

[00:11:21] Speaker 01:
I would appoint you to the special appendix, page 9, which is

[00:11:29] Speaker 01:
It is page nine of the opinion by the Veterans Court.

[00:11:37] Speaker 01:
And then I would carry you over into 10, 11, and 12.

[00:11:43] Speaker 01:
And this is the heart of the analysis with respect to hearing loss and sleep apnea.

[00:11:49] Speaker 01:
With respect to hearing loss, what the Veterans Court does is say the examiner

[00:11:58] Speaker 01:
relied on the normal audiometric examinations that you referred to and the IOM opinion, which is this hefty document.

[00:12:07] Speaker 01:
This hefty document itself is not a single conclusion.

[00:12:10] Speaker 01:
And the CAVC courts have subsequently recognized that in 2016, subsequent to Mr. Ruffin's opinion.

[00:12:16] Speaker 01:
It actually says that there can be diminishment of hearing due to acoustical trauma during the service that is not recognized by the veteran, but only comes on later and is exacerbated by normal hearing.

[00:12:27] Speaker 01:
That, we say, is a contributing factor.

[00:12:30] Speaker 01:
But where, in this opinion, it is where the Court of Appeals for Veterans Claims says, the court acknowledged the examiner relied on?

[00:12:40] Speaker 05:
Which page are we on now?

[00:12:42] Speaker 01:
Your Honor, I'm at Appendix 9, going into Appendix 10.

[00:12:47] Speaker 01:
In the last paragraph, in the second to last sentence of the hearing law section,

[00:12:52] Speaker 01:
Here, the examiner reviewed the totality of the evidence.

[00:12:56] Speaker 05:
I'm sorry.

[00:12:58] Speaker 05:
We're not on the same page.

[00:12:59] Speaker 05:
I'm sorry.

[00:12:59] Speaker 01:
We're on it.

[00:13:00] Speaker 02:
Right here at the bottom.

[00:13:01] Speaker 01:
The appendix 10.

[00:13:02] Speaker 02:
Appendix 9 on the right.

[00:13:05] Speaker 02:
Yeah, those last few words she's just read.

[00:13:10] Speaker 01:
Sorry.

[00:13:10] Speaker 01:
If we're working from the special appendix, it's page 9, last paragraph, penultimate statement.

[00:13:17] Speaker 02:
I'm trying to understand what it is.

[00:13:19] Speaker 02:
You requested a remand for?

[00:13:23] Speaker 02:
I assume, additional evidence, which would be entirely contemporaneous family evidence.

[00:13:30] Speaker 02:
You mentioned that the child said he remembered that his father was becoming hard of hearing.

[00:13:38] Speaker 02:
But that's the purpose of the remand.

[00:13:45] Speaker 02:
And the theory is that that would then outweigh and overcome the measurements of the audiologist.

[00:13:53] Speaker 01:
Your Honor, the answer to your question is yes, in part, and then there is more.

[00:13:58] Speaker 01:
So yes, we would submit updated audiological and lay evidence with respect to Mr. Ruffin's symptoms and the connection to his service.

[00:14:06] Speaker 01:
And the more is that we would like this court to say that the Veterans Court and the board cannot give prescriptive weight, categorical weight that basically disqualifies lay evidence

[00:14:21] Speaker 01:
and post-service medical testimony, like here from Dr. Richard Debo, because that is an inappropriate presumption to attach to the IOM opinion.

[00:14:32] Speaker 01:
And I just want to get back to your question, Judge Chen, which is when you look at this sentence, here the examiner reviewed the totality of the evidence, which included 1998 and 1999 audiogram results and the IOM panel's conclusion regarding delayed onset hearing loss.

[00:14:51] Speaker 01:
I would submit to you that one plus two equals disqualification.

[00:14:56] Speaker 01:
If you take a normal audio metric and the way the examiner treated this IOM opinion, which is that delayed onset of hearing loss, is a myth, then the result is disqualification.

[00:15:08] Speaker 01:
You will never be able to establish service connection.

[00:15:11] Speaker 01:
Why?

[00:15:12] Speaker 01:
Because here, the lay evidence, which is the only thing that is going to be insightful as to the in-service period,

[00:15:19] Speaker 01:
was disqualified as incompetent.

[00:15:22] Speaker 01:
And then the post-service medical diagnosis from Dr. Debo was attached little weight because it was, quote, inconclusive, whereas Dr. Debo stated that Mr. Ruffin was exposed to larks and artillery, very high noise, acoustical trauma.

[00:15:39] Speaker 01:
And in his view, it could have contributed to this delayed onset of hearing loss.

[00:15:44] Speaker 01:
The same happens when you look at the lay evidence section

[00:15:48] Speaker 01:
of the sleep apnea on page 11, where the lay testimony is again disqualified in the final paragraph because why?

[00:15:58] Speaker 01:
Mr. Ruffin is not competent to opine.

[00:16:02] Speaker 01:
And on page 12, he and his family do not have the medical knowledge or training that would allow them to attribute obstructive sleep apnea to military service.

[00:16:11] Speaker 01:
In each case, in violation of gendreux, the Court of Appeals

[00:16:18] Speaker 01:
categorically, in our view, did discard the lay testimony because it wasn't, quote, competent.

[00:16:27] Speaker 01:
And to us, that is simply an impermissible legal construct.

[00:16:33] Speaker 01:
When you put it together with a presumption from the IOM opinion that delayed hearing loss cannot be found, is not medically supported, no veteran can win.

[00:16:45] Speaker 01:
Mr. Ruffin was

[00:16:48] Speaker 01:
effectively prohibited from demonstrating a service connection for either his hearing loss, certainly with the IOM opinion severely weighting down the other side, but also with respect to sleep apnea.

[00:17:02] Speaker 02:
OK.

[00:17:03] Speaker 02:
Let's hear from the VA.

[00:17:05] Speaker 01:
Thank you very much.

[00:17:12] Speaker 02:
Mr. Adles.

[00:17:14] Speaker 00:
May it please the court, and good morning.

[00:17:18] Speaker 00:
Mr. Ruffin advances fact-intensive claims that are beyond the narrow jurisdiction of this court.

[00:17:24] Speaker 00:
The Veterans Court held that the board properly relied on medical opinions, which in turn were based upon the available medical records and scientific knowledge.

[00:17:36] Speaker 00:
Those available medical records and medical opinions affirmatively showed that Mr. Ruffin's service most likely

[00:17:46] Speaker 00:
was not the cause of his hearing and sleep apnea conditions.

[00:17:52] Speaker 00:
But on appeal, Mr. Ruffin has argued to this court that the Veterans Court punished him or penalized him or created a non-rebuttable presumption against him.

[00:18:05] Speaker 00:
All this because he still had a statutory burden of supporting his claims, even though some of his

[00:18:15] Speaker 00:
medical records unfortunately went missing.

[00:18:19] Speaker 00:
But the Veterans Court did not punish Mr. Ruffin by following the statute 38 USC 5107 little a because the Veterans Court did not draw any inference whatsoever from the missing records.

[00:18:36] Speaker 00:
It decided this case based on the available records and the available medical opinions.

[00:18:43] Speaker 00:
Now with respect to the Institute of Medicine, it's been called a study, but it's really more of a treatise.

[00:18:50] Speaker 00:
The Institute of Medicine is part of the National Academies of Sciences.

[00:18:55] Speaker 00:
And this book called Noise and Military Service from the Institute of Medicine, it surveys all of the available medical studies that pertain to hearing loss.

[00:19:13] Speaker 00:
has been, the characterization of this treatise by the appellant is not accurate.

[00:19:23] Speaker 00:
There is no presumption against delayed onset hearing loss.

[00:19:28] Speaker 00:
What the Institute of Medicine found is that based on the state of scientific knowledge as it stands today, if the veteran experiences

[00:19:42] Speaker 00:
delayed onset hearing loss from within a few years of an acoustic trauma, there may be a connection.

[00:19:50] Speaker 00:
But, and this is the key point that was relied upon by the medical doctors who examined Mr. Ruffin, if the alleged delayed onset is a prolonged period of time, many, many years, in this case, more than two decades,

[00:20:13] Speaker 00:
It's the Institute of Medicine concluded that the science says it's highly unlikely that there's a connection to that acoustic trauma.

[00:20:22] Speaker 00:
Now these are all highly fact intensive issues that were properly resolved at the board level and ultimately reviewed by the Veterans Court.

[00:20:33] Speaker 00:
And this court has held in Cromer as well as in Jandrew that the court cannot modify a burden

[00:20:42] Speaker 00:
of supporting a claim that's imposed by statute when Congress itself did not provide for relief.

[00:20:50] Speaker 02:
Well, let me just straighten out.

[00:20:51] Speaker 02:
One of the reasons this case is here is if, in fact, as a matter of procedural law, there was an error in refusing to consider lay evidence, this is something that warrants review as to how it would all come out.

[00:21:09] Speaker 02:
But one of the points

[00:21:10] Speaker 02:
that has been presented to us is that there was a significant error of procedural law.

[00:21:18] Speaker 00:
That is the argument, Your Honor, but that is a counterfactual argument, because the board specifically.

[00:21:24] Speaker 02:
Perhaps the answer is, but the issue is a matter of law.

[00:21:28] Speaker 02:
And I think it's not disputed that that evidence was held to be incompetent.

[00:21:35] Speaker 00:
Some of it, Your Honor.

[00:21:37] Speaker 00:
The lay evidence that was submitted

[00:21:40] Speaker 00:
on several issues was considered as competent before the board.

[00:21:46] Speaker 00:
There was lay evidence about Mr. Ruffins commanding amphibious vehicles, which were very noisy.

[00:21:54] Speaker 00:
That was credited.

[00:21:55] Speaker 00:
No one disputes that he was around loud vehicles while in service.

[00:22:01] Speaker 00:
Also, the lay evidence that was presented concerning his alleged hearing symptoms, he

[00:22:11] Speaker 00:
was he provided testimony on that as well as family members, and that evidence was considered by the board and weighed along with all the other evidence.

[00:22:22] Speaker 00:
The only matter that Mr. Ruffin was not competent to testify to was causation, that his hearing loss in 1999 was caused by a loud event or events back in the mid-1970s.

[00:22:40] Speaker 00:
And that's something that science has to answer.

[00:22:47] Speaker 00:
And ultimately, the question of whether the lay evidence is competent.

[00:22:51] Speaker 05:
Hasn't our president previously addressed the causation issue on lay evidence?

[00:22:56] Speaker 00:
Yes, indeed, Your Honor.

[00:22:58] Speaker 00:
This question of whether lay evidence is competent to address a particular fact issue, that is,

[00:23:08] Speaker 00:
beyond the jurisdiction of the court as this court held in Jandrew, their best case holds that the court cannot consider whether Mr. Ruffin's lay testimony was competent on causation.

[00:23:26] Speaker 04:
But it is competent when it comes to reporting whether there was hearing loss or whether the person kept waking up in the middle of the night.

[00:23:36] Speaker 00:
Yes.

[00:23:37] Speaker 04:
And those observations, these witnesses are confident to testify.

[00:23:41] Speaker 00:
Absolutely.

[00:23:42] Speaker 00:
And the board considered that evidence and weighed it with everything else.

[00:23:46] Speaker 00:
So the requested remand to reconsider that which was already considered and weighed the first time, we respectfully submit it would be pointless.

[00:23:56] Speaker 00:
Because the Veterans Court properly resolved the factual issues in this case, the court should dismiss for lack of jurisdiction or alternatively

[00:24:05] Speaker 00:
affirm the judgment below.

[00:24:07] Speaker 00:
Thank you.

[00:24:11] Speaker 02:
Thank you.

[00:24:15] Speaker 02:
Okay, Ms.

[00:24:15] Speaker 02:
Neuner, you have some rebuttal time.

[00:24:20] Speaker 02:
Two minutes.

[00:24:21] Speaker 01:
Thank you.

[00:24:24] Speaker 01:
Your Honor, what the Secretary just said is that the only matter that Mr. Ruffin was not allowed to testify to is causation.

[00:24:34] Speaker 01:
And he further said, that is something the medical evidence must answer.

[00:24:40] Speaker 01:
Therein lies the rub.

[00:24:42] Speaker 01:
Under Jan Rowe, this federal circuit said, when especially the in-service medical records are missing, lay evidence has to be given due consideration.

[00:24:55] Speaker 01:
And I take your point, Judge Chen, that it is being given due consideration, I would concede, as to the observance of symptoms.

[00:25:03] Speaker 01:
But where it is being categorically rejected under the portions of the Veterans Court opinion I pointed you to is with respect to attribution or causation.

[00:25:15] Speaker 01:
Now, the conundrum that leaves the appellant in is that he would never be able to satisfy a service connection.

[00:25:24] Speaker 01:
truly never be able to, because his lay testimony is being rejected.

[00:25:29] Speaker 05:
Well, the facts are a little different.

[00:25:30] Speaker 05:
If, for example, the events that he was exposed to in service were of a particular kind, it might well be that doctors would say, yes, if you were exposed to shells going off

[00:25:45] Speaker 05:
You were the guy that put the shell into the cannon.

[00:25:51] Speaker 05:
And for two years in a row, you had thousands and thousands of shots.

[00:25:56] Speaker 05:
They might say, that's sufficient.

[00:25:59] Speaker 05:
We believe that that type of exposure can be causation.

[00:26:06] Speaker 05:
I think one of the problems, from my perspective, that you may have here is that the

[00:26:14] Speaker 05:
noise exposures to which your client was exposed in service weren't of the kind I'm talking about.

[00:26:20] Speaker 05:
Shells, it was machines and motors and that sort of thing.

[00:26:25] Speaker 05:
A lesser possibility of injury to hearing.

[00:26:32] Speaker 05:
I don't agree with your proposition that the kind of lay evidence that is pertinent can't be successful for a veteran depending on what the evidence is.

[00:26:43] Speaker 01:
Well, my submission is that Mr. Ruffin did testify in person at the board hearing in 2012 that he was exposed continuously to the larks, the lighter amphibious resupply cargo vehicles, that the noise was deafening, that he experienced problems hearing while in service.

[00:27:03] Speaker 01:
It was observed by others with whom he served.

[00:27:06] Speaker 01:
And Dr. Debo's report, which is found at page 109 of the appendix,

[00:27:11] Speaker 01:
says he was exposed to high intensity noise levels, and this could implicate that military service was at least as likely as not a contributing factor to his hearing loss.

[00:27:22] Speaker 01:
When you put that together with the IOM opinion at page 204, which says that veterans may not experience the hearing loss while it's happening, but it can happen later on and only through the exacerbation with aging

[00:27:37] Speaker 01:
do they realize in retrospect that the trauma led to it?

[00:27:42] Speaker 05:
Do you disagree with your adversary's characterization of the IOM?

[00:27:46] Speaker 01:
Oh, absolutely.

[00:27:47] Speaker 01:
But it's not just me.

[00:27:48] Speaker 01:
You don't have to take my word for it.

[00:27:50] Speaker 01:
It's the CAVC.

[00:27:52] Speaker 01:
Now in 2016, the CAVC has three different times sent back decisions because the examiners relied only on page 47 of the IOM, which is skeptical of delayed onset,

[00:28:04] Speaker 01:
and didn't look at page 204, which is favorable to veterans, and saying that in-service acoustical trauma can lead to exacerbation later on, and the veteran wouldn't even know that.

[00:28:16] Speaker 01:
That's the problem.

[00:28:18] Speaker 01:
We have an early treatment by the examiners of the IOM opinion, which was one note only, delayed onset is not medically supported, and the CAVC has now held in the subsequent intervening years

[00:28:31] Speaker 01:
that you cannot look at that one page of the IOM opinion.

[00:28:35] Speaker 05:
It is more complex.

[00:28:36] Speaker 05:
The same provision you're giving us right now was not in the briefs, right?

[00:28:39] Speaker 01:
No, Your Honor.

[00:28:40] Speaker 01:
And I respect that.

[00:28:42] Speaker 01:
But what I'm trying to make the point is that what is in my briefs is that this IOM opinion was, in fact, treated as a categorical presumption against.

[00:28:51] Speaker 04:
The concern here is now we're into the facts.

[00:28:56] Speaker 04:
1980 audiogram, 1998 audiogram, 1999 audiogram.

[00:29:01] Speaker 04:
They all said his hearing was normal.

[00:29:04] Speaker 04:
Now we have to figure out, was there an actual legal presumption applied against your client due to a loss of service medical records?

[00:29:12] Speaker 04:
You've pointed us to a particular sentence in the Veterans Court's opinion.

[00:29:16] Speaker 04:
But if we conclude that whatever that sentence says doesn't represent the legal presumption being applied against your client adversely, then that's the end of the case.

[00:29:30] Speaker 01:
It is what I would hope it would not be.

[00:29:32] Speaker 01:
And the reason why is because I don't think the CAVC or the examiners ever set out to say, I am now about to commit a legal impropriety.

[00:29:43] Speaker 01:
I am now about to effectuate a presumption against a veteran.

[00:29:48] Speaker 01:
But make no mistake, if you look at the audiologist's report at Appendix 122, combine that with the veteran's court opinion

[00:29:56] Speaker 01:
You are in fact getting a presumption that this IOM opinion forecloses delayed onset when you put it together with normal audiometric findings.

[00:30:07] Speaker 01:
I appreciate, Judge Chen, any time we talk about evidentiary penalties, it starts to sound facty.

[00:30:14] Speaker 01:
I accept that you would be reacting against that, but that doesn't change the legal complexion of what's happening, which is evidentiary penalties and non-rebuttable presumptions.

[00:30:26] Speaker 01:
While they sound, in fact, they amount to a legal hurdle that is not acceptable when put together with the Veterans Claims Assistance Act and the subsequent regulations.

[00:30:37] Speaker 01:
I see it.

[00:30:38] Speaker 01:
My time is way over.

[00:30:39] Speaker 01:
I really do appreciate your time on behalf of Mr. Ruffin.

[00:30:43] Speaker 02:
This is important.

[00:30:45] Speaker 02:
Thank you.

[00:30:46] Speaker 02:
Thank you both for the argument, because it's taken under submission.