[00:00:00] Speaker 02:
1-9-7-1, Cousin versus O'Rourke.

[00:00:36] Speaker 02:
Mr. Crane, please proceed.

[00:00:54] Speaker 03:
Thank you, Your Honors.

[00:00:54] Speaker 03:
May it please the Court.

[00:00:56] Speaker 03:
This appeal presents a clear-cut legal issue, and that is whether or not the Veterans Court used the correct legal standard to identify a defect under the applicable regulation in this case.

[00:01:06] Speaker 04:
Did the board or the Veterans Court interpret any statute or regulations?

[00:01:10] Speaker 04:
Because you need that for O'Brien.

[00:01:13] Speaker 03:
So I don't believe that they expressly interpreted the regulation, the 1946 regulation.

[00:01:19] Speaker 03:
Your Honor, our argument is that they didn't apply any standard in this case, which is also a legal error under Willse and other cases.

[00:01:28] Speaker 04:
And that gets you into O'Brien?

[00:01:31] Speaker 03:
I think it does, Your Honor, because the meaning of the defect term

[00:01:35] Speaker 03:
was dispositive in O'Brien.

[00:01:37] Speaker 03:
But they interpreted.

[00:01:40] Speaker 03:
They had applied the wrong definition, that's right.

[00:01:42] Speaker 03:
Here they failed to apply any definition and in either case it resulted in an error in the Veterans Court's analysis of the board's decision and the board's analysis on the Q claim.

[00:01:55] Speaker 00:
The question, Mr. DeFranis, is whether there was Q in the 1954 rating decision, correct?

[00:02:02] Speaker 03:
That's what we're... That's the ultimate

[00:02:05] Speaker 03:
question at the end of the day.

[00:02:08] Speaker 03:
Right here before this court, I think, is the issue of whether there was any error in the Veterans Court's analysis of the board's analysis of that issue.

[00:02:18] Speaker 02:
If the law was wrongly interpreted in the 1954 decision, would that be cue if they stated the law inaccurately?

[00:02:29] Speaker 03:
I believe that would be cue.

[00:02:31] Speaker 03:
Q can arise from the agency's failure to consider evidence that was properly before it or the agency's error in applying the correct law that existed at the time.

[00:02:42] Speaker 03:
So if the agency in 1954 had applied the wrong definition for defect in its analysis, that would be Q if that error changed the outcome.

[00:02:52] Speaker 02:
And the government argues, well, they may have interpreted the facts of this case as a defect.

[00:02:57] Speaker 02:
And isn't your argument, well,

[00:03:00] Speaker 02:
I know your argument is they didn't use any standard, but assuming that the government is right, that they used some standard keying in on injury versus defect, wouldn't your argument be that they interpreted the law wrong because what this veteran has is not a defect, it's a disease or injury?

[00:03:18] Speaker 03:
I think that's correct.

[00:03:21] Speaker 03:
It's not disputed that the condition that Mr. Cousin has, spondylolysis, is a degenerative condition which would not

[00:03:28] Speaker 03:
which could not be a defect under the applicable definition.

[00:03:30] Speaker 02:
The government adopted your statement of facts below expressly and unequivocally in their brief and repeated that on appeal in a footnote to us and you asserted in multiple places below that spinal leosis is a degenerative condition, correct?

[00:03:44] Speaker 02:
That's correct.

[00:03:44] Speaker 02:
So if the

[00:03:48] Speaker 02:
rating official who decided this case in 1954 if he was aware of the diagnosis of spina leosis, which was present in 1953 x-ray notes, and if the government conceded spina leosis is a degenerative condition, then the only way this rating officer could have, if he considered all of that evidence, come out the way he did was if he interpreted the word defect in the regulation at the time as including degenerative conditions, correct?

[00:04:18] Speaker 03:
I think that's right.

[00:04:19] Speaker 03:
I think that's right.

[00:04:20] Speaker 02:
Do you have anything else you want to say?

[00:04:25] Speaker 03:
If the court has no further questions, I could reserve the rest of my time.

[00:04:28] Speaker 04:
Do you interview your client?

[00:04:30] Speaker 04:
Have you talked to your client?

[00:04:31] Speaker 03:
Yes, many times, Your Honor.

[00:04:32] Speaker 04:
Did you ever ask him what it was like to move an ash can?

[00:04:37] Speaker 03:
He said they were quite heavy.

[00:04:38] Speaker 03:
He moved a lot of them and injured his back pretty badly when he was doing that.

[00:04:44] Speaker 00:
Mr. DeFran, let me ask you.

[00:04:45] Speaker 00:
I think where I am on the case, to me it's a difficult case in one respect.

[00:04:52] Speaker 00:
I agree that if the O'Brien case applies, I think you have a very strong case.

[00:05:02] Speaker 00:
But to me, there seems to be a question, possibly, of retroactivity here.

[00:05:09] Speaker 00:
Because in O'Brien,

[00:05:14] Speaker 00:
If you look at another, you have the Jordan case, which the government relies on.

[00:05:20] Speaker 00:
And Jordan would stand for the proposition in this case that you don't apply the general counsel's opinion, which we endorsed in O'Brien retroactively.

[00:05:31] Speaker 00:
I think that's the government's argument is that Jordan says that.

[00:05:34] Speaker 00:
Okay.

[00:05:35] Speaker 00:
Um, and what I'm trying to wrestle with is how do we resolve the question of retroactivity here?

[00:05:42] Speaker 00:
Because on the face of it,

[00:05:44] Speaker 00:
it would seem that Jordan and O'Brien are inconsistent.

[00:05:49] Speaker 00:
They both have the same factual scenario of somebody queued decision, then a subsequent change.

[00:06:00] Speaker 00:
And I'm wondering how we resolve that here.

[00:06:05] Speaker 00:
Because there is that law that says when we have apparently conflicting cases, we try and resolve the conflict

[00:06:12] Speaker 00:
Or if we can't, we go with the earlier case.

[00:06:17] Speaker 00:
In O'Brien, as far as I can tell, in looking at the briefs in O'Brien, nobody argued the issue of retroactivity.

[00:06:25] Speaker 00:
And Jordan wasn't cited.

[00:06:28] Speaker 00:
And in oral arguments, there was no discussion of retroactivity.

[00:06:33] Speaker 00:
So I guess that leaves me with the feeling that doesn't Jordan control.

[00:06:37] Speaker 00:
Bottom line for me is, I think,

[00:06:39] Speaker 00:
If O'Brien controls along the line of your colloquy with Judge Moore, I think you prevail.

[00:06:46] Speaker 00:
But what's bothering me is this retroactivity point.

[00:06:49] Speaker 00:
Because in O'Brien, they said the regulation was ambiguous.

[00:06:55] Speaker 00:
So assume it was spondyliosis.

[00:07:00] Speaker 00:
It was always spondyliosis with all its conditions, but only when the general counsel spoke was it determined that that kind of degenerative condition was not a defect.

[00:07:10] Speaker 00:
I apologize for rambling, but I thought it was the only way it could kind of get this retroactivity issue out.

[00:07:17] Speaker 00:
What is your response to that, if you understand my rambling?

[00:07:21] Speaker 03:
So I think I appreciate Your Honor's concern.

[00:07:23] Speaker 03:
And I think there's a critical difference between Jordan and O'Brien that's also evident here in this case.

[00:07:30] Speaker 03:
And I don't think there's actually a retroactivity issue here in this case, because like in Jordan, we have regulation that at the time of the original decision had not been authoritatively construed.

[00:07:43] Speaker 03:
And that's in contrast to Jordan, where at the time of the original decision in Jordan, there was a regulation that had construed the statute that was at issue in Jordan.

[00:07:54] Speaker 03:
And so that regulation was the effective binding construction of that statute at the time of the original

[00:08:00] Speaker 03:
decision in Jordan.

[00:08:02] Speaker 03:
And then when that regulation was later revoked in Jordan, that was a change in the law.

[00:08:07] Speaker 03:
And so that change was not retroactive and did not affect final judgments, because at the time of the judgment, the original final judgment in Jordan, there had been a binding instruction of the statute of issue.

[00:08:19] Speaker 00:
I think you're stressing my recollections.

[00:08:22] Speaker 00:
You've accurately set forth the factual setup in Jordan

[00:08:29] Speaker 00:
And in this case, but the one thing is you do have the statement in O'Brien that the regulation here was ambiguous.

[00:08:40] Speaker 00:
O'Brien said that the regulation that we're dealing with here was ambiguous.

[00:08:45] Speaker 00:
So you have the board in 1954 addressing what we've said is an ambiguous regulation.

[00:08:53] Speaker 00:
And later in 1985, that ambiguity

[00:08:59] Speaker 00:
being removed by the action of the general counsel.

[00:09:04] Speaker 00:
So even though it's a little bit different, still it would seem that there is that retroactivity component in there.

[00:09:12] Speaker 03:
Well, I think the ambiguity was ultimately resulted by this court.

[00:09:15] Speaker 03:
when the decision in O'Brien was issued.

[00:09:18] Speaker 00:
Right.

[00:09:19] Speaker 00:
Yeah, that's true.

[00:09:20] Speaker 00:
I agree.

[00:09:21] Speaker 00:
But the ambiguity existed.

[00:09:23] Speaker 00:
In other words, what I'm getting at, why if in 1954 the Board, the Rating Office, RO, was faced with an ambiguous regulation and it ruled the way it did, why do we say there was Q?

[00:09:42] Speaker 00:
Because Q, you have to look at what the law was at the time, and the board was faced, I'm sorry, the RO was faced with an ambiguous reg, and it did the best it could with it.

[00:09:53] Speaker 03:
And it turned out that its interpretation was wrong, I think, Your Honor.

[00:09:57] Speaker 03:
I think if you look at the interpretation that was ultimately perceived to be correct in O'Brien, if you assume that the AOJ at the time of the original decision in 1954 came to a different conclusion,

[00:10:08] Speaker 03:
and concluded that something that's congenital, for example, can be a defect, or is necessarily a defect, that was held to be incorrect in O'Brien.

[00:10:18] Speaker 03:
So even if you assume that that regulation was ambiguous at the time, the interpretation that

[00:10:25] Speaker 03:
is imputed to the 1954 decision would be incorrect under O'Brien.

[00:10:30] Speaker 02:
So if I understand you right, what you're suggesting is that at no time has the government ever alleged that the word defect included degenerative conditions.

[00:10:39] Speaker 02:
Isn't that right?

[00:10:40] Speaker 02:
not just the general counsel's opinions that affirmatively it doesn't, but there's never been a case that I'm aware of or any announcement where the government has said it does.

[00:10:49] Speaker 02:
So there is no conflict in the later holding that's overruling the earlier one, is that correct?

[00:10:54] Speaker 03:
That's right.

[00:10:55] Speaker 03:
I don't think the government's argued that in this case either.

[00:10:57] Speaker 02:
And in addition to that, isn't it the case that

[00:11:02] Speaker 02:
while we found it ambiguous, we would not have permitted a plainly erroneous conclusion.

[00:11:08] Speaker 02:
And nothing in O'Brien suggests that the government had the choice to come out either way, and it wouldn't have been plainly erroneous if they had come out the other way, right?

[00:11:17] Speaker 03:
That's correct.

[00:11:17] Speaker 03:
And in fact, so this court in O'Brien did cite our and talked about the general counsel's opinion, but also took time on 1380, 771, 1380.

[00:11:27] Speaker 03:
made a point to say that the interpretation was actually reasonable.

[00:11:30] Speaker 03:
So I did an independent look at the regulation and the construction that was proposed.

[00:11:34] Speaker 02:
OK.

[00:11:35] Speaker 02:
Want to save your rebuttal time?

[00:11:37] Speaker 03:
Yes, Your Honor.

[00:11:37] Speaker 03:
Thank you.

[00:11:38] Speaker 02:
OK.

[00:11:39] Speaker 02:
Let's hear from the government.

[00:11:40] Speaker 02:
Ms.

[00:11:41] Speaker 02:
Park?

[00:11:46] Speaker 01:
May it please the court?

[00:11:49] Speaker 01:
First, to get to your question.

[00:11:51] Speaker 04:
No, no, no, no.

[00:11:51] Speaker 04:
First, you answer my question.

[00:11:55] Speaker 01:
Yes, Judge Wallach.

[00:11:57] Speaker 04:
Does the government know what an ash can is?

[00:12:01] Speaker 01:
No, Your Honor.

[00:12:01] Speaker 01:
I do not know exactly what an ash can is from 1952.

[00:12:06] Speaker 04:
An ash can from 1952 is a metal can, probably a 55 gallon oil drum, or a large garbage can the same size, filled with the ash from the coal-fired furnaces that were used in the training facilities.

[00:12:23] Speaker 04:
and for all troops in 1952, and were still used in 1969 when I went in the Army.

[00:12:30] Speaker 04:
And I couldn't lift one at the time.

[00:12:34] Speaker 04:
Now, the reason I say that is there's a presumption that when Mr. Cousins went in the service, his pre-induction physical showed that his back was normal, and he was entitled to a presumption of soundless

[00:12:51] Speaker 04:
and aggravation, right?

[00:12:54] Speaker 01:
Correct.

[00:12:55] Speaker 04:
Okay.

[00:12:56] Speaker 04:
If he had a bad back, why was the government assigning him to lift those ash cans?

[00:13:03] Speaker 01:
I do not have an answer for that, Your Honor.

[00:13:05] Speaker 04:
Wasn't the government assuming that he had a strong back when it made those assignments?

[00:13:10] Speaker 01:
If Mr. Cousin, at the time of his entry into the service, said he did not have a back problem, then we would assume that he had a solid back.

[00:13:21] Speaker 02:
On page 23 of your red brief, you argue to us, indeed, even the March 1953 x-ray notes could be read that Mr. Cousin had probably or likely spondyliosis.

[00:13:38] Speaker 02:
Are you asking us to make a fact-finding about what those x-ray notes could be read to say?

[00:13:43] Speaker 01:
No, Your Honor.

[00:13:44] Speaker 02:
Are we permitted to change a board fact finding that was made about what they say?

[00:13:49] Speaker 02:
No, Your Honor.

[00:13:50] Speaker 02:
Did the board find expressly that those exact x-ray notes diagnosed him with a condition of spondyliosis?

[00:13:57] Speaker 02:
Yes, Your Honor.

[00:13:58] Speaker 02:
Yes, they did on page A19 of the appendix.

[00:14:00] Speaker 02:
So the board has made an affirmative fact finding that he was diagnosed in that exact same x-ray note with spondyliosis.

[00:14:07] Speaker 02:
So why is the government arguing to me on appeal that I should nonetheless interpret that record as probably or likely concluding he had spondyliosis?

[00:14:16] Speaker 02:
Is that within my jurisdiction to do?

[00:14:18] Speaker 01:
No, Your Honor.

[00:14:19] Speaker 01:
You cannot make a factual determination.

[00:14:21] Speaker 01:
So why are you telling me to do that in this brief?

[00:14:24] Speaker 01:
What I was attempting to point out to the court was that

[00:14:28] Speaker 02:
The board got the fact finding wrong when they said that that exact same note diagnosed it was spondyliosis?

[00:14:35] Speaker 01:
No, but when the board stated that the veteran had spondyliosis.

[00:14:46] Speaker 02:
No, you said that that note diagnosed him having spondyliosis.

[00:14:51] Speaker 01:
That note also, which is an appendix page

[00:14:58] Speaker 01:
I may pull it up.

[00:15:00] Speaker 01:
I believe it is at page- 321.

[00:15:02] Speaker 01:
321.

[00:15:03] Speaker 01:
Thank you, Your Honor.

[00:15:05] Speaker 01:
Also notes a pedicle defect.

[00:15:08] Speaker 01:
Correct.

[00:15:09] Speaker 02:
And based upon this x-ray- The board interpreted that note on page 321 and said it revealed a defect diagnosed as spondyliosis.

[00:15:22] Speaker 02:
Yes, Your Honor.

[00:15:23] Speaker 02:
So it was diagnosed with spondyliosis.

[00:15:27] Speaker 01:
But that note also explained that Mr. Cousin had a pedicle defect.

[00:15:32] Speaker 01:
And further, the decision.

[00:15:36] Speaker 02:
I do not understand how you could insert the words probably or likely in your brief to us trying to get me to somehow disregard the board's express fact finding that he expressed.

[00:15:49] Speaker 01:
No, Your Honor, and I apologize if that is the way it came out.

[00:15:52] Speaker 01:
We are not attempting to get the court to make a fact finding, because certainly, and that's why this court lacks jurisdiction.

[00:15:59] Speaker 02:
Not to make a fact finding, but reverse a board's expressed fact finding.

[00:16:02] Speaker 01:
We are not requesting that this court reverse the board's fact finding.

[00:16:07] Speaker 01:
We are requesting that the court find that it has no jurisdiction, because the fact finding of the board determined that Mr. Cousin, there was

[00:16:19] Speaker 01:
Sufficient reason that a reasonable person.

[00:16:21] Speaker 02:
The fact finding the board was he was diagnosed with spondylosis, correct?

[00:16:24] Speaker 01:
Yes, Your Honor.

[00:16:26] Speaker 02:
Below, you conceded that spondylosis is a degenerative condition, correct?

[00:16:31] Speaker 01:
Yes, Your Honor.

[00:16:33] Speaker 02:
So when the rating officer decided in 1954 that he wasn't entitled to benefits, despite the facts being that he had spondylosis, which you have admitted is a degenerative condition,

[00:16:48] Speaker 02:
Aren't they necessarily interpreting the word defect, therefore, as including degenerative conditions?

[00:16:58] Speaker 01:
Your Honor, the 1954 board noted in its decision that Mr. Cousin was asymptomatic upon the time of his departure and that he was diagnosed.

[00:17:08] Speaker 04:
He was on my student, was he not?

[00:17:10] Speaker 01:
I'm pardon your honor.

[00:17:11] Speaker 04:
He was on, he had what they call a permanent profile.

[00:17:15] Speaker 04:
He was on permanent light duty.

[00:17:18] Speaker 01:
Yes, your honor.

[00:17:19] Speaker 04:
You think the army in 1952 let people get permanent profiles as a regular thing?

[00:17:26] Speaker 01:
I simply don't know that answer, your honor.

[00:17:29] Speaker 01:
However, Mr. Cousin was shown as asymptomatic at discharge regardless of his permanent profile.

[00:17:35] Speaker 01:
He was not experiencing any back symptoms at the time of his departure.

[00:17:38] Speaker 03:
Because he's not doing anything.

[00:17:39] Speaker 01:
that may be the case, Your Honor.

[00:17:42] Speaker 01:
But here, and to get to your point, Judge Moore, whether the 1954 board interpreted spondyliosis as a defect or a disease will not manifestly change the outcome of this case.

[00:18:00] Speaker 01:
Because Mr. Cousin was asymptomatic at discharge.

[00:18:05] Speaker 01:
As Your Honor correctly noted multiple times,

[00:18:08] Speaker 01:
this court does not have the jurisdiction to reconsider fact findings and to interpret whether the board's decision, which explicitly found that Mr. Cousin being asymptomatic at discharge and that the 1954 RO, which included a physician who presumptively reviewed these records, including the 1953 X-ray, concluded that Mr. Cousin did not have a service connection.

[00:18:38] Speaker 02:
He had a degenerative disease by the government's admission, and you would like me to interpret the 1954 rating.

[00:18:46] Speaker 02:
I mean, I don't see how to interpret it other than the word defect, which is the only way he is not compensable under these circumstances, includes degenerative conditions.

[00:18:58] Speaker 02:
Is the government alleging

[00:18:59] Speaker 02:
that it would have been reasonable in 1954 for the rating officer to conclude that defects include degenerative conditions.

[00:19:07] Speaker 02:
I've never seen the government take that position.

[00:19:08] Speaker 02:
In fact, it's taken the opposite position in every case I can find going way back.

[00:19:12] Speaker 02:
But are you now telling me it would have been reasonable?

[00:19:15] Speaker 02:
It would not have been plainly erroneous if this particular rating officer decided that defects do, in fact, include degenerative conditions.

[00:19:25] Speaker 01:
What the government is asserting is that considering the record as a whole, with the benefit of the physician having reviewed all of the records, including the 1953 x-ray, which stated pedicle defect as well as spondyliosis, that a reasonable fact finder could determine, as the 1954 RO did, that Mr. Cousin did not have a service-related connection.

[00:19:49] Speaker 04:
Are you not going to answer the question?

[00:19:51] Speaker 01:
I apologize if I did not answer the question.

[00:19:54] Speaker 04:
The question was defect and its definition, not the record as a whole.

[00:20:06] Speaker 01:
The government does not contend that spondyliosis is a defect.

[00:20:11] Speaker 01:
But even assuming the, as Judge Shaw noted, the ambiguous statute back in, or pardon me, regulation back in 1954,

[00:20:24] Speaker 01:
Mr. Cousin cannot show that there would be a manifestly different result, regardless of whether defect or disease was applied.

[00:20:32] Speaker 02:
Mr. Cousin, you accepted all his statements of fact, correct?

[00:20:37] Speaker 02:
The statements of facts he made in this brief before the Veterans Court, the government said in its brief they accept as true all of those statements of fact, correct?

[00:20:45] Speaker 01:
That is what the government's briefs mean.

[00:20:46] Speaker 02:
Let me read the fact from his brief at page 822.

[00:20:49] Speaker 02:
In the months and years that followed, Mr. Cousins continued to experience back trouble and degenerative changes as a result of this service condition.

[00:20:56] Speaker 02:
You accepted that as true.

[00:20:58] Speaker 02:
That is, in his statement of facts, the portion that you expressly accepted as true.

[00:21:03] Speaker 02:
So why don't I hold the government to the concession that he wasn't OK from 1954 forward, but rather that as Mr. Cousins alleged, which you conceded, he continued in the months and years immediately following his

[00:21:18] Speaker 02:
connection from service to have these back troubles.

[00:21:22] Speaker 01:
Because, Your Honor, the board also went through all of Mr. Cousin's records and held that the 1954 RO could have reasonably concluded as it did with the benefit of all of Mr. Cousin's records.

[00:21:38] Speaker 01:
Looking at the record as a whole, including Mr. Cousin's medical records,

[00:21:43] Speaker 01:
does not show that Mr. Cousin presented multiple times with back symptoms between 1954 and I believe the first time that he requested a service connection in 1979.

[00:21:55] Speaker 01:
And while Mr. Cousin certainly has at times presented with back problems and has gone to the VA with that, there was no service connection until December 2012, which was based upon a

[00:22:13] Speaker 01:
December 2012 medical opinion by the VA, which clearly was not in front of the 1954 R.O.

[00:22:22] Speaker 00:
Ms.

[00:22:22] Speaker 00:
Murdoch-Park, let me ask you if I could, please.

[00:22:26] Speaker 00:
You heard my colloquy with Mr. Dufresne, and you heard the chief's colloquy or the presiding judge's colloquy with Mr. Dufresne.

[00:22:39] Speaker 00:
Where I am is that if

[00:22:42] Speaker 00:
O'Brien is what we're living by here.

[00:22:45] Speaker 00:
I think you're kind of out of luck in the case.

[00:22:50] Speaker 00:
But I'm wondering about this question of retroactivity.

[00:22:56] Speaker 00:
You haven't talked about that, maybe because you either didn't get a chance to just now or because you don't feel that strongly about it.

[00:23:04] Speaker 00:
What is your view on the retroactivity point that I was raising?

[00:23:11] Speaker 00:
Don't hesitate to tell me if you think it doesn't go anywhere.

[00:23:14] Speaker 00:
But it just struck me as an issue in the case, and I was wondering what you thought about it.

[00:23:20] Speaker 01:
Well, Your Honor is correct.

[00:23:21] Speaker 01:
And Jordan does apply here.

[00:23:23] Speaker 01:
The first time that the term defect was authoritatively construed, as Mr. Cousin concedes in his reply brief at page 8, was in this, was in O'Brien.

[00:23:34] Speaker 01:
And then 1985 general counsel opinion

[00:23:38] Speaker 01:
was the first time that there is a legal interpretation of what constitutes a defect.

[00:23:44] Speaker 00:
And that 1985 general counsel opinion cannot be retroactively applied 30 years in the past to- But as I recall, in response to that, Judge Moore said, well, the government has never- the government agrees that it was always a degenerative disease.

[00:24:05] Speaker 00:
So I think

[00:24:07] Speaker 00:
percolically with Mr. DeFrain and I can be corrected.

[00:24:12] Speaker 00:
The thrust of it was that it's always been a degenerative disease so that this general counsel's opinion in 1985 doesn't make any difference.

[00:24:24] Speaker 00:
Did you understand that to be the tenor of their discussion?

[00:24:27] Speaker 01:
I did, Your Honor.

[00:24:28] Speaker 01:
And the... What's your answer to that?

[00:24:33] Speaker 01:
My answer, and I hope this does answer the question, is that

[00:24:37] Speaker 01:
Regardless of how the term defect is applied, even assuming that the 1985 general counsel opinion should be applied, a manifestly different result does not occur applying that definition of defect.

[00:24:53] Speaker 01:
The 1946 regulation that was in place at the time of the decision explains that, yes, a defect is noncompensable.

[00:25:07] Speaker 01:
And Mr. Cousin's medical records have sufficient murkiness, if you will, that demonstrate a reasonable fact finder could determine, as the 1954 board RO did, that he could have had a defect.

[00:25:23] Speaker 00:
So do you think there's a tension between Jordan and O'Brien?

[00:25:29] Speaker 01:
Well, I think simply here, Your Honor, O'Brien does not apply.

[00:25:33] Speaker 01:
The facts are very different.

[00:25:36] Speaker 01:
Mr. O'Brien, for example, was completely blind within one year of leaving the service, whereas Mr. Cousin did not know any other back problems for 25 years.

[00:25:47] Speaker 00:
So you're saying we don't have to worry about a conflict between Jordan and O'Brien and try to resolve it, in your view?

[00:25:54] Speaker 01:
Your Honor, I don't think the court needs to reach that, because I don't believe that O'Brien applies.

[00:26:01] Speaker 01:
And the question that Mr. Cousin raises as to whether or not

[00:26:06] Speaker 01:
certain facts were considered in the record are beyond the sports jurisdiction.

[00:26:10] Speaker 04:
Let me read back to you.

[00:26:14] Speaker 04:
Mr. O'Brien was completely blind within a year of leaving the service, whereas Mr. Cousins did not have any back problems for 25 years.

[00:26:23] Speaker 04:
I think that's a verbatim your statement.

[00:26:25] Speaker 01:
Yes, Your Honor.

[00:26:27] Speaker 04:
Now let me read to you from page 22 of the appendix, which you accepted as factually true.

[00:26:34] Speaker 04:
Yes, less than a year later, however, Mr. Cousin filed his first claim for disability compensation relating to his in-service back injury.

[00:26:42] Speaker 04:
In the months and years that followed, Mr. Cousin continued to experience back trouble and degenerative changes as a result of service.

[00:26:51] Speaker 04:
And then there's all 15 or so references.

[00:26:55] Speaker 04:
How can you square those two statements?

[00:26:57] Speaker 01:
Because, Your Honor, months

[00:27:00] Speaker 01:
depending on how you determine months, months could be 120 months, 240 months.

[00:27:07] Speaker 01:
Mr. Cousin has pointed to nothing in the record that shows between the time of the initial service claim or the initial time that Mr. Cousin was diagnosed with a back injury and when he attempted to reopen his claim in 1979, that there are any medical records showing that he had

[00:27:29] Speaker 01:
further service-related injuries, including that crucial time period between 1952 and 1954.

[00:27:36] Speaker 01:
And while certainly Mr. Cousin, as the government concedes, did have back problems in the months and years that followed, I do not interpret that as stating that the months are necessarily within one to two months after he left the service, nor within

[00:27:53] Speaker 01:
one year as within Mr. O'Brien's case when he went completely blind.

[00:27:58] Speaker 04:
In July 1954, Mr. Cousin filed his first claim for VA compensation for his back condition, indicating that his disability had begun in 1952 and specifically identifying the treatment he received while in service in 1952 and 1953.

[00:28:13] Speaker 04:
That seems like months to me.

[00:28:17] Speaker 01:
But that was also before the decision.

[00:28:20] Speaker 01:
And while he may have filed in 1954 for his claim, he was discharged from the military in, I believe it was September 1954.

[00:28:30] Speaker 01:
And certainly, if he was put on permanent disability, he would file for a claim within one year of that occurring.

[00:28:37] Speaker 02:
OK.

[00:28:39] Speaker 02:
We're out of time.

[00:28:40] Speaker 02:
Mr. Dufresne, do you have anything you'd like to add on rebuttal?

[00:28:47] Speaker 03:
Thank you, Your Honor.

[00:28:48] Speaker 03:
I'd just like to touch quickly on a couple of points and answer.

[00:28:51] Speaker 03:
I'd like you to clarify the time period for me.

[00:28:55] Speaker 03:
Certainly, Your Honor.

[00:28:56] Speaker 03:
Which time period are you interested in?

[00:28:58] Speaker 04:
The one upon which I've been stressing the governance from the time of his discharge till 1979.

[00:29:07] Speaker 03:
So Mr. Cousin was honorably discharged in September of 1953.

[00:29:11] Speaker 03:
Right.

[00:29:12] Speaker 03:
At that point he was subject to what the VA itself called a permanent physical profile that limited him from doing fundamental... I'm aware of it.

[00:29:20] Speaker 03:
I know what it is.

[00:29:22] Speaker 03:
We used to call it smoking and joking.

[00:29:26] Speaker 03:
That's a new one to me, Ron.

[00:29:29] Speaker 03:
The first benefits application he filed was less than a year later in July of 1954.

[00:29:33] Speaker 03:
That claim was denied in December of 1954 and Mr. Cousin

[00:29:38] Speaker 03:
filed on several occasions over the ensuing 60 years trying to reopen that claim.

[00:29:43] Speaker 03:
When you say several, was there one before 1979?

[00:29:46] Speaker 03:
The first one after 1954 was in 1979.

[00:29:50] Speaker 03:
There was some discussion about the question of whether Mr. Cousin had a disability that was evident in the time between his discharge and his initial application for benefits in 1954.

[00:30:09] Speaker 03:
That question has been undisputed in this case.

[00:30:13] Speaker 03:
It was not disputed before the Veterans Court.

[00:30:15] Speaker 03:
The governments bring that as an argument for the first time on appeal here.

[00:30:18] Speaker 03:
We think that's inappropriate.

[00:30:21] Speaker 03:
It's also inconsistent with the permanent profile that Mr. Cousin was assigned at the time of his discharge.

[00:30:27] Speaker 03:
Whether or not he was symptomatic at the time of discharge, I think that was because the treatment he was prescribed was working.

[00:30:31] Speaker 03:
So the permanent profile kept him from doing these activities like bending and lifting.

[00:30:36] Speaker 03:
Yeah.

[00:30:37] Speaker 03:
Perhaps not surprisingly, he was asymptomatic, but in his post-military life, any time he engaged in those activities, he had back problems again.

[00:30:44] Speaker 02:
I would also just quickly... So if we find Q in this instance, or at least if we find that there was an error of law in the 1954 rating decision, namely in the interpretation of the word defect as necessarily including degenerative conditions in light of the government's concessions,

[00:31:07] Speaker 02:
with regard to the facts.

[00:31:08] Speaker 02:
What happens?

[00:31:09] Speaker 02:
Do we reverse or do we vacate and remand?

[00:31:11] Speaker 02:
And what else would need to be done?

[00:31:14] Speaker 03:
So I would say that's within this court's discretion.

[00:31:18] Speaker 03:
The court could certainly vacate and remand for further proceedings before the board.

[00:31:22] Speaker 03:
In a case like this, I think the court has discretion to proceed and resolve the issue when there's an undisputed record and the result is clear if the correct law is applied.

[00:31:34] Speaker 02:
And I think that... It's supposed to be a unique case because there are government concessions regarding the facts.

[00:31:39] Speaker 03:
Right.

[00:31:39] Speaker 03:
I agree with that, Your Honor.

[00:31:41] Speaker 03:
And I think this would be prudentially and especially appropriate case to consider outright reversal because my client is 89 years old.

[00:31:50] Speaker 03:
He's been waiting more than 60 years for these benefits.

[00:31:52] Speaker 02:
And if he dies, I bet those benefits go up in smoke, don't they?

[00:31:56] Speaker 03:
I believe his wife may be able to collect them, but she's also...

[00:32:00] Speaker 03:
at an advanced age as well.

[00:32:02] Speaker 03:
So that could ultimately occur.

[00:32:03] Speaker 03:
And as the court knows, the VA's adjudication process is not known for its speed.

[00:32:08] Speaker 03:
So this might be a case where reversal would be appropriate.

[00:32:13] Speaker 02:
OK.

[00:32:13] Speaker 02:
Thank you very much.

[00:32:14] Speaker 02:
We thank both counsel.

[00:32:15] Speaker 02:
The argument is taken under submission.