[00:00:00] Speaker 03:
The case for argument this morning is 171693 Diaz versus O'Rourke.

[00:00:06] Speaker 03:
Mr. Atick or Attick?

[00:00:08] Speaker 04:
Mr. Attick, Your Honor.

[00:00:10] Speaker 03:
Good morning.

[00:00:16] Speaker 04:
Good morning, Your Honor.

[00:00:16] Speaker 04:
Chief Judge, Your Honors, esteemed deposing counsel, may it please the Court.

[00:00:22] Speaker 04:
The Secretary has provided no reason why Hispanic ethnicity is a more likely etiology for a neck condition.

[00:00:30] Speaker 04:
than two in-service military accidents, one involving the veteran being ejected from the truck at 20 to 30 miles per hour and the other involving a car accident with lacerations to the skull and requiring x-rays of the skull.

[00:00:42] Speaker 03:
Well, did anyone say that Hispanic ethnicity is a factor or how it's a factor?

[00:00:49] Speaker 04:
In the opinion from the examiner in 2008, Your Honor, the physician's assistant commented in his opinion section that ethnicity was a more likely etiology.

[00:01:00] Speaker 04:
I certainly could not be saying somebody else's ethnicity was a more likely etiological factor for this veteran.

[00:01:08] Speaker 05:
They included a number of factors, a list of factors, and one of them was ethnicity.

[00:01:17] Speaker 04:
Yes, Chief Judge.

[00:01:18] Speaker 04:
Yes, Your Honor.

[00:01:19] Speaker 04:
We acknowledge that there were several references to other factors, but a reference to ethnicity in a list of factors is still... There were several.

[00:01:25] Speaker 05:
There were quite a few.

[00:01:27] Speaker 05:
age, obesity, um, there were several others, um, lifestyle, deconditioning, concomitant health issues, subsequent trauma, lifestyle choices, post-service occupation.

[00:01:39] Speaker 05:
It does say ethnicity, that was a factor, but it doesn't say ethnicity of Hispanic lineage.

[00:01:45] Speaker 04:
It certainly does not, I'm sorry, Your Honor.

[00:01:47] Speaker 05:
No, go ahead.

[00:01:48] Speaker 04:
It certainly does not say specifically Hispanic ethnicity, but in the context of that VA medical opinion,

[00:01:53] Speaker 04:
It's hard to tell what other ethnicity might have been referred to.

[00:01:56] Speaker 03:
But did it describe how ethnicity affected the result?

[00:02:01] Speaker 03:
For example, it also says lifestyle choices.

[00:02:04] Speaker 03:
Did it go into a discussion of those lifestyle choices and how they affected the results here?

[00:02:10] Speaker 04:
The examiner did not.

[00:02:11] Speaker 04:
He also did not go into any medical reasons why the neck condition was not related to service other than the conclusion, which the board then found highly probative.

[00:02:20] Speaker 04:
the fact that these more likely etiologies for this veteran, the board personalized it to this veteran.

[00:02:26] Speaker 04:
So regardless of what the examiner did in his opinion, what the board did was they said the more likely etiologies for this veteran are highly probative.

[00:02:36] Speaker 04:
And those are the board's exact words.

[00:02:37] Speaker 04:
They had a chance to say that this is just a passing reference or just a general recitation of risk factors and did not.

[00:02:43] Speaker 05:
But there was a general acknowledgement that he had sustained a neck injury.

[00:02:48] Speaker 05:
Correct?

[00:02:51] Speaker 05:
And his own recollection was that he had sustained a neck injury when he turned around too fast at one point.

[00:02:57] Speaker 05:
And then later he says he sustained a neck injury when he fell off a military vehicle.

[00:03:05] Speaker 04:
Mr. Diaz has consistently throughout the case attributed his neck injury to the military incidents.

[00:03:10] Speaker 04:
Now he did have treatment from 94 to 95 and then into the 2000s for some incidents that occurred post-service.

[00:03:17] Speaker 04:
But he's always attributed to military service the two accidents that occurred, the June or July of 1965 accident where he was ejected from a truck, and you can see that at Joint Appendix 103.

[00:03:28] Speaker 04:
And then also he's attributed to the February 1966 accident, which occurred behind the hospital at Fort Hood, where he was then admitted to the hospital, had to have his skull x-rayed and lacerations to his skull sutured, suggesting that there was possibility of damage to

[00:03:44] Speaker 04:
But at the very least, it was an incident in service that he has always consistently claimed is related to his current condition.

[00:03:52] Speaker 03:
But your claim here is equal protection, right?

[00:03:54] Speaker 04:
It is, Your Honor.

[00:03:55] Speaker 04:
We're arguing that based on the improper reference to ethnicity, his equal protection rights were violated.

[00:04:03] Speaker 03:
I'm looking here at the Court of Veterans Claims opinion.

[00:04:05] Speaker 03:
Is there any indication that they relied on, I mean, they do cite the examiner's full paragraph there.

[00:04:12] Speaker 03:
Any indications they relied on any of the details they listed?

[00:04:16] Speaker 04:
They did not.

[00:04:17] Speaker 04:
And that's one of our arguments here, Your Honor, is that the Veterans Court did not address the argument that we presented, and that was necessary because they decided the case on all other points of error that we raised.

[00:04:28] Speaker 04:
Because it was presented, because it was necessary, we believe that the Veterans Court should have addressed it, and they did not.

[00:04:34] Speaker 03:
And how would they have had to address it?

[00:04:37] Speaker 03:
Would they have had to go through

[00:04:40] Speaker 03:
I mean, this, as Judge Raina pointed out, this statement by the examiner not only lists numerous factors, but says specifically these etiologies are not limited to.

[00:04:54] Speaker 03:
So if we're going to rely on this, I don't know how one relies on whether or not they used any of this stuff, because there's a list that's not even enumerated that they just describe as more common.

[00:05:11] Speaker 04:
To the second question, Your Honor, I'd like to call the words of Chief Justice, I'm sorry, Chief Justice, I keep attributing the wrong rank to judges, and I apologize for that, to Justice O'Connor in the Adderham case.

[00:05:22] Speaker 04:
And she, quoting Justice Stevens in an earlier case, talked about how because ethnicity is so seldom a relevant base for government action, and because it is so harmful to the body politic, that any reference to an ethnicity classification needs to be clearly identified

[00:05:40] Speaker 04:
and unquestionably legitimate.

[00:05:43] Speaker 04:
So in that context, the mere reference of ethnicity for a Hispanic veteran, who in the record is known to have not been a United States citizen during his service, certainly all those factors call into the question of whether this examiner was making a passing reference with the other listed etiologies.

[00:06:02] Speaker 04:
That question is resolved when the board itself calls in and says the more likely etiology for this veteran.

[00:06:08] Speaker 04:
Those are the words of the board judge.

[00:06:10] Speaker 04:
The board judge had an opportunity to combine.

[00:06:12] Speaker 03:
Well, how do we know?

[00:06:12] Speaker 03:
It may be age.

[00:06:13] Speaker 03:
There's an age discrimination law, too.

[00:06:16] Speaker 03:
So does the suggestion of age mean that there's some problem with that factor as well?

[00:06:25] Speaker 04:
We would think that age, I would think that age is different from ethnicity in the sense that age is not a suspect classification requiring strict scrutiny, whereas ethnicity and race are.

[00:06:34] Speaker 04:
And so certainly the burdens that the court would have had to look at in assessing.

[00:06:38] Speaker 02:
What about gender?

[00:06:39] Speaker 02:
When he listed gender.

[00:06:41] Speaker 04:
Gender is an intermediate scrutiny, if I'm correct.

[00:06:44] Speaker 04:
So I think that there would be a different level of scrutiny that the court would apply.

[00:06:47] Speaker 04:
But again, our argument at the court was whether there was inadequate reasons and bases for relying on ethnicity, any ethnicity, but specifically this veteran's ethnicity in denying service connections.

[00:06:58] Speaker 00:
I should just understand your point that here there is a veteran with a Spanish name.

[00:07:04] Speaker 00:
Are you saying that he should have come in as John Doe?

[00:07:08] Speaker 00:
All that they reported was the one word, Hispanic.

[00:07:14] Speaker 00:
So you're saying that that should be concealed, that there is a heritage, a name, with an implication of an ethnic background?

[00:07:26] Speaker 04:
Name alone wouldn't do it, Your Honor, I don't think.

[00:07:29] Speaker 04:
I think merely mentioning the name, or even in the general medical summary, where we often see.

[00:07:34] Speaker 00:
The name is there.

[00:07:35] Speaker 00:
It's right there in all the documents and so on.

[00:07:38] Speaker 04:
It is there.

[00:07:38] Speaker 00:
So mention or not, it's there.

[00:07:41] Speaker 00:
You're saying that ideally, the name should be changed so that there's no way that the examiner could guess or suspect that there might be some issue that could trigger some sort of discriminatory response?

[00:08:00] Speaker 04:
I'm not saying that at all, Your Honor.

[00:08:01] Speaker 00:
In fact, what we're saying- Then what are you saying?

[00:08:02] Speaker 00:
Because there wasn't much more of a reference to background than

[00:08:08] Speaker 00:
which would come from the name.

[00:08:10] Speaker 04:
We're saying first that the examiner should have, if they're going to say, if the examiner is going to say that ethnicity was an etiological factor, whether it's one of many or one by itself, that they should provide some reason to explain.

[00:08:22] Speaker 00:
Well, there's 10 attributes in order to define this veteran.

[00:08:27] Speaker 04:
They should definitely.

[00:08:27] Speaker 00:
They shouldn't go anything out.

[00:08:29] Speaker 04:
In that case, I would think that the examiner, what we're asking this Court to do is to say that the examiner should have at least provided some reasoning to connect the ethnic

[00:08:37] Speaker 04:
background of the veteran that it relied on.

[00:08:39] Speaker 04:
This is not a case with, time and again, we see complement exams that mention the ethnicity of the veteran, but I have not yet seen one in 10 years of doing this where a veteran's ethnicity has been included in the opinion itself.

[00:08:50] Speaker 00:
Would you say the examiner should have said this veteran has a Hispanic name?

[00:08:55] Speaker 04:
Should have said that this is the reason that I believe that his ethnicity or his age or the other factors, if they're a protected class, should at least explain why.

[00:09:03] Speaker 05:
Are we talking about your Hispanic?

[00:09:05] Speaker 04:
in this particular case, Hispanic.

[00:09:07] Speaker 05:
Let's say that the veteran was from Norway.

[00:09:10] Speaker 05:
Would ethnicity apply there?

[00:09:13] Speaker 05:
Does the word ethnicity, its inclusion in this list, is it improper?

[00:09:17] Speaker 05:
Because we're not dealing with the Hispanic male?

[00:09:21] Speaker 04:
The inclusion in the list itself is not improper, Your Honor.

[00:09:24] Speaker 04:
I think what we're looking at here is the difference between a passing reference and an ethnic classification.

[00:09:30] Speaker 05:
What concerns me is that, in your brief, you haven't shown how ethnicity is referenced to the Hispanic lineage.

[00:09:40] Speaker 05:
All this is is ethnicity.

[00:09:41] Speaker 04:
It could be Swiss or... If the board judge, in making the decision, had looked at this and said, the examiner made a passing reference to ethnicity... Suppose the list contains obesity.

[00:09:54] Speaker 05:
And suppose a veteran is not obese, then obesity is irrelevant, correct?

[00:10:04] Speaker 05:
It can't be one of the factors if he's not obese.

[00:10:08] Speaker 04:
If he's not obese, it could not be one of the factors.

[00:10:10] Speaker 05:
So for ethnicity, how do we know that it's limited to persons of Hispanic lineage?

[00:10:17] Speaker 04:
Because when the board made its decision, it looked at that exam, and it said it relied as highly probative on the examiner's opinion that the more likely etiology for this veteran.

[00:10:28] Speaker 04:
So any passing reference that could have been there in the examiner's opinion was negated by the board judge's decision saying that the more common etiology or more likely etiology was his word.

[00:10:37] Speaker 05:
So let's go down the path a little bit.

[00:10:42] Speaker 05:
This is an equal protection claim that you have.

[00:10:46] Speaker 05:
Have you established or did you offer proof?

[00:10:49] Speaker 05:
Did you meet your burden to show that the VA had an intent to discriminate?

[00:10:55] Speaker 04:
We don't need to show that burden based on our understanding of the law, Your Honor.

[00:10:59] Speaker 05:
What we need to show at the Veterans Court to present the issue... We have to show that at least if there's a disparaging effect.

[00:11:07] Speaker 04:
We have to show an ethnic classification on its face, either an intentional act of discrimination, an intentional direct or circumstantial evidence of discrimination.

[00:11:14] Speaker 04:
In this case,

[00:11:15] Speaker 04:
We have that direct evidence because the ethnic classification was specifically included in the examiner's opinion and in the board judges.

[00:11:22] Speaker 05:
So you have to tie the comment or the ethnicity.

[00:11:27] Speaker 05:
You have to tie that to the medical opinion.

[00:11:32] Speaker 04:
In this case, we're arguing that

[00:11:34] Speaker 04:
before the court, the Veterans Court.

[00:11:36] Speaker 05:
You just can't say ethnicity, and we have a legal protection claim.

[00:11:41] Speaker 05:
You have to tie that to the opinion, correct?

[00:11:43] Speaker 04:
We do.

[00:11:43] Speaker 04:
And we have to either the opinion or the board judge's decision.

[00:11:48] Speaker 05:
Where is that tied?

[00:11:50] Speaker 04:
In our opening brief before the Veterans Court, we argued that the VA examiner referenced ethnicity, and that we were arguing that there was no reasons or basis for that reliance there.

[00:12:03] Speaker 04:
Before this court,

[00:12:04] Speaker 04:
Certainly, I have to be candid, Your Honor, is that my argument at the Veterans Court was not the most forceful, equal protection argument that I could have made at that court.

[00:12:15] Speaker 05:
You left something on the table back at the board, didn't you?

[00:12:18] Speaker 05:
I mean, you did not link this to the medical opinion and to the result here.

[00:12:24] Speaker 05:
That's why you argued before us.

[00:12:26] Speaker 05:
You want us to say that just the mere inclusion of the word ethnicity in this list

[00:12:32] Speaker 05:
of a number of factors, that that itself will grant you an equal protection non-cost claim.

[00:12:41] Speaker 04:
We don't want to say that, Your Honor.

[00:12:43] Speaker 04:
We're not specifically saying that.

[00:12:44] Speaker 04:
I think we're trying to make a distinction between a passing reference.

[00:12:47] Speaker 04:
I will concede that my argument at the Veterans Court was not as forceful an equal protection argument as I could have made, but it was a very calculated decision based on Rule 28's requirement that we have a statement of the issue

[00:12:59] Speaker 04:
included ethnicity in that, that we made the basic argument with citations to the record, the law that we were relying on.

[00:13:05] Speaker 04:
My client was concerned on one hand.

[00:13:06] Speaker 05:
Was that argument limited by the fact that you didn't really have the facts at hand?

[00:13:12] Speaker 04:
It was not limited by that.

[00:13:13] Speaker 04:
It was limited by concerns with my client.

[00:13:15] Speaker 04:
My client was concerned that he was going to have to go back before this board judge in a remand or in his other pending claims.

[00:13:21] Speaker 04:
He did not want to make a forceful equal protection argument such that he would be seen as impugning a board judge's integrity.

[00:13:27] Speaker 04:
But at the same time, he felt

[00:13:28] Speaker 04:
that ethnicity was the reason, that he was denied benefits because he was Hispanic.

[00:13:32] Speaker 04:
And so we calculated this decision to not only present the argument, but also to tread lightly on it.

[00:13:38] Speaker 03:
On this record, how can you make that statement that that was the basis for his denial?

[00:13:43] Speaker 03:
I mean, other than that one sentence, which is just in the context of the sentence starts off by saying, he hasn't proven this.

[00:13:53] Speaker 03:
There are all these reasons to disprove it.

[00:13:55] Speaker 03:
And then they just have, in addition to that,

[00:13:59] Speaker 03:
Indeed, more likely reasons are the others.

[00:14:03] Speaker 03:
That really doesn't have to do with the basis upon which they denied it.

[00:14:06] Speaker 03:
And in fact, that's sort of proven by the whole discussion of the Court of Veterans Claims and their calling out what they're affirming in terms of what the board said has nothing to do with that one sentence.

[00:14:21] Speaker 03:
It's all about the facts of this case.

[00:14:23] Speaker 04:
I disagree respectfully, Your Honor, because the Board decision actually tied in this veteran.

[00:14:27] Speaker 03:
And when you look at the actual facts... Well, then why don't we look at the Court of Veterans Claims decision, which is what we're reviewing here.

[00:14:32] Speaker 03:
So why don't you show me in that where they're calling out anything, where they're relying on anything that the Board said other than the specific facts in this case.

[00:14:43] Speaker 04:
In terms of the ethnicity classification, Your Honor, so I understand your question.

[00:14:46] Speaker 03:
Right.

[00:14:46] Speaker 03:
I mean, I think the only... Am I wrong?

[00:14:48] Speaker 03:
The only reference to ethnicity in the Court of Veterans Claims was just...

[00:14:54] Speaker 03:
a citation to that full paragraph, which starts off by including all of the reasons why they're denying it that have nothing to do with ethnicity.

[00:15:04] Speaker 04:
That is the only citation.

[00:15:06] Speaker 04:
And if you look at the court decision, there is no discussion of why the ethnicity, any reasoning for it.

[00:15:12] Speaker 03:
No, but there's plenty of discussion in terms of all of the facts that led them to conclude that your client was not entitled to disability claim.

[00:15:20] Speaker 04:
And if you take that examiner's opinion off the table that has the ethnic classification, what you're left with is, at the very least, equiposin and probably very likely preponderance of the evidence showing that he's entitled to serve his connection.

[00:15:32] Speaker 04:
If you take that 2008 examiner's opinion off the table, you're left with a 2004 examiner's opinion, which the board itself did not find probative or adequate.

[00:15:40] Speaker 03:
You're also left with- What are we talking about, taking it off the table, everything that he did, or just that sentence?

[00:15:45] Speaker 04:
Either way that you were to go, Your Honor, if you were just to take that sentence off the table, what you're left with is two factors, in his opinion, finding that there's no connection to service.

[00:15:55] Speaker 04:
And it's a failure to explain 40 years of treatment, which the veteran did explain and nobody's ever challenged, and then also no evidence in the medical records of the severity of the accident, which aren't really necessarily relevant when you have the veteran's unchallenged determination or discussion of what happened in that accident.

[00:16:13] Speaker 04:
So when you're left with those two things without the ethnicity classification on the table, put on the other side of the table what evidence there is that the Court of Veterans Claims reviewed the board decision.

[00:16:24] Speaker 03:
As you know, that's not within our standard of review to review or assess the validity of the facts here.

[00:16:31] Speaker 03:
But when the Court of Veterans Claims did it, it spoke in detail about all of the findings of the board with respect to things other than ethnicity.

[00:16:42] Speaker 03:
It relied on them and agreed with them.

[00:16:46] Speaker 04:
And that's part of our concern, Your Honor, is that we feel that we were entitled to at least a discussion from the court.

[00:16:51] Speaker 04:
We presented this issue that there's no reasoning for the ethnic classification.

[00:16:55] Speaker 04:
We can't determine how much that did or did not play a role.

[00:16:57] Speaker 04:
Was that in the calculus that it's less likely or only in the calculus that it's more likely?

[00:17:02] Speaker 04:
We can't really have the benefit of challenging that classification here if it's not.

[00:17:07] Speaker 05:
We can't review that here.

[00:17:08] Speaker 05:
We can't reweigh the evidence.

[00:17:11] Speaker 05:
on your behalf or on behalf of the VA.

[00:17:16] Speaker 04:
This court's jurisdiction allows the court to review de novo the constitutional claim and certainly allows- Right, but not the type of factual findings that you're talking about.

[00:17:27] Speaker 04:
Factual findings are reviewed de novo in a constitutional claim under 7292, this court's jurisdiction.

[00:17:33] Speaker 04:
So I believe this court does have the authority to review, at the very least, for finding that there's no reasoning provided

[00:17:39] Speaker 04:
for the ethnic classification in the board decision.

[00:17:42] Speaker 03:
But why don't you look at Appendix 4, the main paragraph, which is their opinion or their review.

[00:17:51] Speaker 03:
And the Court of Veterans Claims is reviewing the board.

[00:17:55] Speaker 03:
They discern no error in the board's finding that the connect condition is unrelated to service.

[00:18:00] Speaker 03:
And they go on to specify the details of that, no reference to the ethnicity subject

[00:18:07] Speaker 03:
no reference to anything about that entire sentence.

[00:18:10] Speaker 03:
This is all based on facts.

[00:18:13] Speaker 03:
So, I mean, at least sub silencio, they're saying, we don't think this was because of ethnicity.

[00:18:21] Speaker 03:
We're making this determination, as did the board, for all of these independent facts with which we agree.

[00:18:28] Speaker 04:
And we would still be entitled, Your Honor, to review under Linville, even if they were denying it sub silencio and not saying anything about

[00:18:35] Speaker 04:
the constitutional claim, we're still entitled to review.

[00:18:37] Speaker 04:
The facts that are in that page that you cited, a majority of them come from the November 2008 exam.

[00:18:42] Speaker 04:
Right.

[00:18:42] Speaker 04:
And then the ones that don't come from it all seem to be... So what if they come from the exam?

[00:18:47] Speaker 03:
Why is that probative of anything?

[00:18:49] Speaker 04:
Because it suggests that without the classification in that exam, that the facts might have been weighed differently.

[00:18:54] Speaker 04:
Mr. Diaz has a substantial right to adequate reasons and bases in a board decision.

[00:18:59] Speaker 04:
And if he doesn't have that adequate reasons and bases, how can he argue at the Veterans Court

[00:19:04] Speaker 04:
whether or not, to what degree, the ethnic classification that he believed existed in that examiner's opinion, that he believed existed in that board decision, he has no ability to argue how those were weighed out before the Veterans Court.

[00:19:16] Speaker 04:
So that denial of the substantial right is prejudicial to Mr. Diaz.

[00:19:20] Speaker 04:
And that certainly is within the court's jurisdiction to be able to remedy that.

[00:19:25] Speaker 03:
OK.

[00:19:25] Speaker 03:
We're well into the rebuttal, and that's all involved in that case.

[00:19:29] Speaker 03:
But we'll restore you in the meantime while we hear from the government.

[00:19:31] Speaker 03:
Thank you, Your Honor.

[00:19:32] Speaker 03:
Thank you.

[00:19:49] Speaker 03:
Good morning.

[00:19:49] Speaker 01:
Good morning, Your Honors.

[00:19:51] Speaker 01:
May it please the Court?

[00:19:52] Speaker 01:
We ask this Court to affirm the decision below because Mr. Diaz has not established an equal protection violation.

[00:19:59] Speaker 01:
Mr. Diaz has argued, through his counsel, that his claim for veterans' benefits was denied because he is Hispanic, in violation of his equal protection rights.

[00:20:09] Speaker 01:
To establish an equal protection violation, Mr. Diaz must show that the government intentionally discriminated against him

[00:20:16] Speaker 01:
on the basis of race, gender, or national origin.

[00:20:20] Speaker 01:
Mr. Diaz has not met this burden because there is no evidence of discrimination.

[00:20:25] Speaker 01:
Neither the VIEG.

[00:20:25] Speaker 03:
Well, what about, would it be sufficient if there was evidence that they considered his ethnicity in making the determination?

[00:20:34] Speaker 03:
Would that be sufficient?

[00:20:36] Speaker 01:
Your Honor, I would depend on the facts of the case.

[00:20:41] Speaker 01:
In this case, there is no evidence that they did consider his ethnicity.

[00:20:44] Speaker 01:
The board and the Veterans Court did not even mention that he was Hispanic.

[00:20:50] Speaker 03:
But look at this sentence that we're all talking about here.

[00:20:54] Speaker 03:
The last sentence is the one that refers to ethnicity.

[00:20:58] Speaker 03:
What if they had said, more likely etiologies are, and then they had said Hispanic ethnicity?

[00:21:07] Speaker 01:
That would be a closer call, Your Honor.

[00:21:09] Speaker 01:
However, it seems if everything else was the same, that still would not establish an equal protection violation.

[00:21:15] Speaker 01:
What is that?

[00:21:17] Speaker 05:
Is there a burden to show intent to discriminate?

[00:21:22] Speaker 01:
Yes, Your Honor.

[00:21:22] Speaker 01:
The appellant has the burden of showing that the government intentionally discriminated against him.

[00:21:29] Speaker 01:
In this case, even if

[00:21:32] Speaker 01:
the list of more likely etiologies specified Hispanic ethnicity instead of just a generic ethnicity, there still would be no evidence that the Veterans Court or the board relied on Mr. Diaz's Hispanic ethnicity in denying his claim.

[00:21:48] Speaker 03:
I don't understand what you're saying.

[00:21:50] Speaker 03:
Yeah, firstly, we know he's Hispanic.

[00:21:53] Speaker 03:
So if you're using ethnicity, we're not using ethnicity that he's Danish or white.

[00:21:58] Speaker 03:
That's his ethnicity.

[00:22:00] Speaker 03:
The board relied on these factors.

[00:22:03] Speaker 03:
So I don't understand what you're saying.

[00:22:05] Speaker 03:
So let's assume it said Hispanic ethnicity, because they're talking in this sentence about his claimed conditions.

[00:22:14] Speaker 03:
So if it's his ethnicity we're talking about, then clearly we're talking about Hispanic ethnicity.

[00:22:19] Speaker 03:
So take that as a gift.

[00:22:21] Speaker 01:
So what if it had said Hispanic ethnicity?

[00:22:24] Speaker 01:
On the facts of this case, there still would be no equal protection violation.

[00:22:29] Speaker 01:
I would like to move back just one moment to address one thing that you said, Your Honor.

[00:22:34] Speaker 01:
We do not know that this list of more common etiologies, that ethnicity is intended to be Hispanic ethnicity.

[00:22:43] Speaker 01:
I would point out that at least one of these common etiologies does not apply to Mr. Diaz, and that is obesity, just as a matter of height and weight calculation.

[00:22:52] Speaker 01:
Many of the other etiologies listed, there is no evidence as to whether or not they apply to him.

[00:22:58] Speaker 01:
And in fact, in his brief to the Veterans Court, Mr. That there is no evidence to say one way or the other, other than what's on the face of the document.

[00:23:14] Speaker 01:
It appears that this was simply a list of some, a non-exclusive list of some of the more common etiologies.

[00:23:27] Speaker 01:
As Mr. Diaz stated to the Veterans Court.

[00:23:29] Speaker 03:
Why is it there?

[00:23:30] Speaker 03:
It's part of their analysis.

[00:23:32] Speaker 03:
They say, on the one hand, he's not shown any of this.

[00:23:37] Speaker 03:
And what sort of supports that is that it's more likely these other things.

[00:23:43] Speaker 03:
So it's part of their analysis, right?

[00:23:45] Speaker 01:
I would respectfully disagree, Your Honor.

[00:23:47] Speaker 01:
The veterans, the VA examiner, concluded that there was no evidence of service connection

[00:23:54] Speaker 01:
The VA examiner was tasked with determining whether it was at least as likely as not that Mr. Diaz's disability was related to his in-service connection.

[00:24:04] Speaker 01:
Once the VA examiner makes that determination, there is no requirement to determine the actual cause of the current disability.

[00:24:12] Speaker 03:
So why is that sentence there?

[00:24:15] Speaker 01:
Your Honor, that sentence probably does not need to be there, having already determined that there is no service connection.

[00:24:21] Speaker 01:
I cannot.

[00:24:22] Speaker 03:
Well, that suggests more of an equal protection problem than not, right?

[00:24:27] Speaker 03:
If it wasn't necessary to do it, that they considered something anyway?

[00:24:32] Speaker 01:
I respectfully disagree, Your Honor.

[00:24:33] Speaker 01:
As I said earlier, there is no evidence that these ideologies apply to Mr. Diaz.

[00:24:42] Speaker 03:
It appears that what happened is that's what the board was doing.

[00:24:44] Speaker 03:
This is clear error.

[00:24:46] Speaker 03:
Because that's what he was saying.

[00:24:48] Speaker 03:
He's saying the more likely etiologies for these claim conditions are the following.

[00:24:55] Speaker 03:
That's suggesting that he's saying, no, there's a more likely diagnosis.

[00:25:00] Speaker 03:
We're only talking about this claimant.

[00:25:02] Speaker 03:
We're not talking about some hypothetical group of people.

[00:25:05] Speaker 03:
We're talking in this paragraph about his claim.

[00:25:10] Speaker 01:
Right?

[00:25:10] Speaker 01:
Yes, that is correct, Your Honor.

[00:25:12] Speaker 01:
However, the VA examiner did not conclude that any of these etiologies applied, only that it was more likely that some of the common etiologies might apply because there was no evidence connecting the spinal neck condition

[00:25:27] Speaker 01:
to his in-service.

[00:25:29] Speaker 05:
I don't follow that point.

[00:25:31] Speaker 05:
Why is it that it doesn't apply?

[00:25:32] Speaker 05:
It says the more likely etiology for these faint conditions.

[00:25:37] Speaker 05:
And this is a medical report.

[00:25:38] Speaker 05:
So it seems to me that there's a finding here of osteoarthritis.

[00:25:44] Speaker 05:
And then it goes on and says, but not limited to, and then it lists all the different factors.

[00:25:48] Speaker 05:
I mean, those factors count, unless you're saying they shouldn't have been there, that it's a mistake to have on there.

[00:25:57] Speaker 01:
The VA examiner is not, on the face of this document, does not state that any of these necessarily explain Mr. Diaz's osteoarthritis or his neck condition.

[00:26:10] Speaker 01:
More likely.

[00:26:11] Speaker 01:
The VA examiner seems to be saying that it's more likely that some of the more common etiologies, and this is not a complete list, apply in this case because there is no evidence that his in-service accident caused a neck condition.

[00:26:26] Speaker 01:
And that's based on the fact that there was.

[00:26:28] Speaker 05:
If there's no evidence as to this list here, obesity and deconditioning ethnicity, then why are they in the doctor's report?

[00:26:38] Speaker 01:
Your Honor, on the face of the document, doesn't explain why.

[00:26:42] Speaker 01:
It seems, as Mr. Diaz stated before the Veterans Court, that the VA examiner.

[00:26:47] Speaker 05:
Could it be then that the inclusion of ethnicity did have a disparaging effect on the doctor's opinion?

[00:26:53] Speaker 01:
There is no evidence of that.

[00:26:56] Speaker 01:
And it is Mr. Diaz's burden to show evidence of discriminatory intent.

[00:27:01] Speaker 01:
The Veterans Court and- That's an intent.

[00:27:06] Speaker 05:
And perhaps that burden exists, but also that burden is met if it shows that the ethnicity issue had a disparaging effect on the doctor's opinion.

[00:27:17] Speaker 01:
There is still no evidence of that.

[00:27:19] Speaker 01:
As I pointed out, obesity clearly does not apply to Mr. Diaz, and yet that was included in the list.

[00:27:25] Speaker 01:
there is no evidence as to some of these other etiologies that they, whether or not they apply.

[00:27:31] Speaker 01:
It appears to be just a general list, as Mr. Diaz stated below, which may or may not be applicable to him.

[00:27:38] Speaker 05:
Well, from here, I mean, looking at the list, obesity doesn't apply, you say.

[00:27:44] Speaker 05:
And I don't know about deep conditioning.

[00:27:46] Speaker 05:
I don't know about hereditary.

[00:27:49] Speaker 05:
But it's listed there.

[00:27:51] Speaker 05:
And then the report does make reference that he's a Hispanic male.

[00:27:54] Speaker 05:
It seems to me that that ties back to the fact that he's a Hispanic male.

[00:27:59] Speaker 05:
That's his ethnicity that we're dealing with.

[00:28:02] Speaker 05:
And if that's not a factor, then why is it in the medical report?

[00:28:08] Speaker 01:
I can't say why it is in the medical report, but there is no evidence that the reference to ethnicity was intended to relate to his Hispanic ethnicity.

[00:28:18] Speaker 01:
From the evidence, we do not know whether Hispanic ethnicity makes a person more or less likely to suffer from

[00:28:24] Speaker 01:
a spinal condition.

[00:28:28] Speaker 05:
Well, I'm glad to hear that personally.

[00:28:33] Speaker 05:
I'm not sure that helps your argument much here.

[00:28:35] Speaker 03:
Well, this was a fact.

[00:28:39] Speaker 03:
I mean, they find all the reasons why this wasn't service-connected.

[00:28:43] Speaker 03:
And what they weigh on the other side is,

[00:28:47] Speaker 03:
It has some significance that these etiologies for these claimed conditions could be a result of all of these things.

[00:28:56] Speaker 03:
So what if he came in?

[00:28:57] Speaker 03:
What if they listed three things, ethnicity, age, and obesity?

[00:29:02] Speaker 03:
And he could show, well, they're wrong about this.

[00:29:04] Speaker 03:
Forget the ethnic stuff.

[00:29:06] Speaker 03:
But just they're wrong about this because I don't have these factors.

[00:29:11] Speaker 03:
So there was no alternative basis which could have caused that.

[00:29:15] Speaker 03:
Wouldn't that be probative of the outcome here?

[00:29:17] Speaker 01:
Your Honor, it would not be, because the VA examiner, the board, and the Veterans Court are not required to determine an alternative, what the actual cause is.

[00:29:28] Speaker 03:
What if it said, more likely, etiology for these claim conditions is the fact that the veteran fell off a roof six years ago?

[00:29:36] Speaker 03:
And what if that, in fact, was not true?

[00:29:39] Speaker 03:
Wouldn't that be a problem in terms of the analysis?

[00:29:43] Speaker 01:
That would be a problem in terms of the analysis.

[00:29:46] Speaker 01:
However, the claimant below still has the burden of establishing a service connection.

[00:29:52] Speaker 01:
So in that case, that might be harmless error if they were incorrect about the actual cause of the disability.

[00:30:02] Speaker 01:
But that is a question that they don't have to reach.

[00:30:03] Speaker 01:
And there is no evidence.

[00:30:05] Speaker 03:
Let me ask you.

[00:30:06] Speaker 03:
Why, as your friend said on the other side, why didn't the Court of Veterans Claims deal with this issue?

[00:30:12] Speaker 03:
If it didn't matter, if it had no relevance, if they never really considered it, why didn't somebody just say so?

[00:30:19] Speaker 01:
Your Honor, the claimant appellant did not fully raise this issue before the Veterans Court.

[00:30:26] Speaker 01:
In Mr. Diaz's opening brief to the Veterans Court, he did not raise a constitutional issue.

[00:30:32] Speaker 01:
He argued that the board did not have adequate reasons and bases.

[00:30:37] Speaker 01:
He mentioned equal protection, but he didn't ask for constitutional strict scrutiny,

[00:30:42] Speaker 01:
until his reply brief.

[00:30:43] Speaker 01:
And therefore, the Veterans Court was not required to address the issue.

[00:30:46] Speaker 01:
He did waive the issue below, Your Honor.

[00:30:52] Speaker 01:
And that appears to be what?

[00:30:58] Speaker 01:
Yes, Your Honor.

[00:30:59] Speaker 01:
And therefore, the Veterans Court was not required to address it.

[00:31:05] Speaker 01:
In addition, the appellate courts have wide latitude in determining which issues to address and which not to address.

[00:31:12] Speaker 01:
So this is an issue that wasn't fully raised until his reply brief.

[00:31:17] Speaker 01:
So the Veterans Court was not required to address it in its opinion.

[00:31:22] Speaker 00:
To be sure that I understand the argument, we haven't really gotten to the merits.

[00:31:28] Speaker 00:
The facts aren't before us.

[00:31:30] Speaker 00:
But the record states that he agreed that he'd had an accident

[00:31:35] Speaker 00:
1995 and initially said that he thought that was the reason for his current disability.

[00:31:42] Speaker 00:
Then with the passage of time and so on and the arguments, the causation was traced back to the military service.

[00:31:51] Speaker 00:
Now, the impression that I got from the briefs is something that we haven't really been discussing here, that the evidence before the VA, the VA examiner and then the court

[00:32:04] Speaker 00:
was that this established sufficiently or by a preponderance or whatever standard they were applying what was the cause for the current disability as compared with tracing it back to the military service through 30 years earlier.

[00:32:24] Speaker 00:
Now, here we have this tabulation of 10 aspects of the ideology describing this person

[00:32:34] Speaker 00:
which has taken on a life of its own, I assume in part because that would be the only basis for appeal to this Court if we can bring a constitutional issue into it.

[00:32:49] Speaker 00:
And yet I haven't really heard any defense of the facts on which from the record it looks as if the Board and the Veterans Court were relying.

[00:33:02] Speaker 00:
Is this something that you agree?

[00:33:04] Speaker 00:
We should set aside and just concentrate on how much weight to give to the silence other than the listing of the Hispanic background.

[00:33:16] Speaker 01:
Your Honor, I would have two points to address there.

[00:33:20] Speaker 01:
The first is that the Veterans Court and the board's wane of evidence is not within the jurisdiction of this court, which is why I haven't addressed it much.

[00:33:31] Speaker 01:
But there is significant evidence

[00:33:33] Speaker 01:
in support of their determination.

[00:33:35] Speaker 01:
Amongst other things, there was no contemporaneous medical records showing a neck condition in service.

[00:33:43] Speaker 01:
At separation, the clinical evaluation was normal.

[00:33:46] Speaker 01:
There were no complaints of neck problems.

[00:33:48] Speaker 01:
And as you pointed out, it wasn't until 1994, almost three decades later after Mr. Diaz left service, that he first sought medical treatment for a neck problem.

[00:34:00] Speaker 01:
Looking at all of that evidence, the board and the Veterans Court concluded that there was no probative evidence tying his current net condition to his in-service accident, and that there was actually no evidence that he had any net condition before 1994.

[00:34:18] Speaker 00:
Yes, of course, it's true that we don't review and refine the facts.

[00:34:25] Speaker 00:
But in looking for some perspective as to the context,

[00:34:30] Speaker 00:
for this reference to, along with a bunch of other aspects of the ideology concerning Mr. Diaz, as to how to understand whether there is or is not a constitutional issue is a matter of balance as well, is it not?

[00:34:50] Speaker 01:
It could be a matter of balance if Mr. Diaz was able to show

[00:34:55] Speaker 01:
evidence of discriminatory intent.

[00:34:58] Speaker 01:
In this case, there is no evidence, but even if there was, the harmless error standard would still apply.

[00:35:05] Speaker 01:
And as you pointed out, Your Honor... I'm not sure.

[00:35:08] Speaker 00:
If you're going there, I'm not so sure that we want to argue that discriminatory intent is harmless error.

[00:35:17] Speaker 01:
Well, in this case, there is the

[00:35:20] Speaker 01:
court and the board found that there was no probative evidence of a service connection.

[00:35:25] Speaker 01:
So in this case, all of the evidence is on the side of no service connection.

[00:35:30] Speaker 01:
Therefore, there was no discriminatory intent.

[00:35:34] Speaker 01:
There was no discrimination.

[00:35:35] Speaker 01:
But even if there was, there would be no evidence below upon which Mr. Diaz could prevail if this was remanded.

[00:35:43] Speaker 01:
And those factual considerations

[00:35:47] Speaker 01:
that by the veterans court and by the board are outside of the jurisdiction of this court.

[00:35:51] Speaker 00:
Discriminatory intent, he'd automatically prevail.

[00:35:54] Speaker 00:
Would he not?

[00:35:55] Speaker 00:
I mean, if that's a question before us, I'm not so sure that the VA is on the right side of that.

[00:36:03] Speaker 01:
If he was able to show discriminatory intent, he may prevail in this court.

[00:36:06] Speaker 01:
But for his veterans benefits claim, he would still have the burden of establishing a service connection.

[00:36:14] Speaker 01:
That is his burden below.

[00:36:15] Speaker 01:
And as the board and the court found, there was no probative evidence supporting that claim.

[00:36:24] Speaker 01:
I see that I am out of time, Your Honors.

[00:36:26] Speaker 01:
In conclusion, we respectfully ask this court to affirm the decision below.

[00:36:30] Speaker 01:
Thank you.

[00:36:40] Speaker 04:
An unexplained ethnicity classification in a medical doctor's opinion, or in this case a physician assistant opinion, demonstrates intent to discriminate.

[00:36:49] Speaker 00:
Specifically when there is no explanation of how that... How does it demonstrate?

[00:36:56] Speaker 04:
There's no explanation of how the ethnicity played a role.

[00:37:00] Speaker 04:
There is limited, if any, medical connection of the

[00:37:05] Speaker 04:
If you look at Dr. Fair's opinion where he lines out the medical connection between the incident and the disability, you see a very thorough medical opinion.

[00:37:14] Speaker 04:
That does not exist in this physician's assistant's opinion.

[00:37:17] Speaker 04:
What exists there is, oh, he didn't say anything for 40 years because he was raising children trying to earn a living with a sixth-grade education, but it doesn't even address that fact.

[00:37:26] Speaker 04:
It doesn't talk about why ethnicity is a factor.

[00:37:29] Speaker 04:
If it came in, if this examiner had come in and said, ethnicity is a factor, and here's 10 studies or one study showing

[00:37:35] Speaker 04:
that Hispanic origin is a more likely etiology for a net condition or any other condition.

[00:37:41] Speaker 04:
I don't know that we'd be here today, but it's not explained.

[00:37:44] Speaker 04:
Because it's not explained and because the other factors on that list are either completely unexplained, don't make sense, or aren't true, it suggests that they're masking the true motive.

[00:37:54] Speaker 04:
Now, we don't have to actually show there's a subjective motive to discriminate.

[00:37:58] Speaker 04:
If we were to have to show that, that's an extremely high burden to show.

[00:38:02] Speaker 04:
that I don't think has ever been placed on somebody in an equal protection claim.

[00:38:05] Speaker 04:
But what we do have to show is that the lack of any explanation of why the ethnic classification played a role suggests that it played a bigger role than the examiner wanted to put in there.

[00:38:16] Speaker 00:
You're saying there's a presumption that anyone with an Hispanic name that goes through the system of disability is discriminated against?

[00:38:26] Speaker 04:
No, Your Honor, I'm not saying that.

[00:38:28] Speaker 04:
What I'm saying is that when we show that there's an ethnic classification unexplained on its face, that we've pled a prima facie case of discrimination and violation of equal protection requiring- Would you waive that argument?

[00:38:40] Speaker 04:
We did not waive that argument, Your Honor.

[00:38:41] Speaker 05:
We did make it below.

[00:38:42] Speaker 05:
And under court rule 28- What you argued below, what you argued before us, is that the Veterans Court or the board did not supply a well-reasoned decision.

[00:38:56] Speaker 05:
And by well reasoned or thorough decision, you argue that the reason you can tell this is not a well reasoned decision is because it doesn't mention equal protection.

[00:39:06] Speaker 05:
But it doesn't seem to me that you raised that until your reply brief.

[00:39:11] Speaker 04:
We raised equal protection in the opening brief.

[00:39:13] Speaker 04:
And in fact, we raised it in our summary of issues presented to the court.

[00:39:17] Speaker 05:
Did you argue that?

[00:39:17] Speaker 05:
Did you make the argument?

[00:39:18] Speaker 04:
We made two citations to the record and cited the VA examiner's opinion.

[00:39:22] Speaker 04:
And then we also discussed that equal protection and explained our argument saying that

[00:39:26] Speaker 04:
If an examiner can deny benefits or deny a nexus based on ethnicity, then there is no equal protection.

[00:39:32] Speaker 04:
We made that argument.

[00:39:33] Speaker 04:
There's no requirement that we plead the secretary's burden.

[00:39:37] Speaker 04:
If this was an employment case, if we've planned a prima facie case of discrimination, there's no requirement that we would need to prove or plead a legitimate nondiscriminatory reason.

[00:39:46] Speaker 03:
Do you plead that there was intentional discrimination here?

[00:39:51] Speaker 04:
I think we used the words intentional discrimination here.

[00:39:53] Speaker 04:
What we did was we argued.

[00:39:54] Speaker 03:
Would you say there was a violation of the equal protection clause?

[00:39:57] Speaker 04:
We did say that in our opening brief at pages 53.

[00:40:00] Speaker 03:
And you explained how?

[00:40:01] Speaker 04:
We explained how we thought that there was a connection.

[00:40:03] Speaker 04:
Now, as I concede, we did not make the most forceful argument, but we made enough under 28A, which is the court's rule.

[00:40:10] Speaker 05:
What do you think you left out?

[00:40:14] Speaker 04:
Certainly, I think we've made a much more forceful argument here for the equal protection violation.

[00:40:18] Speaker 04:
And if the court finds that we waived it or didn't present it at the veterans court, then certainly that issue is squarely before this court here.

[00:40:25] Speaker 04:
And we've argued at this court that there is no explanation for the reason of the classification.

[00:40:31] Speaker 04:
The board judge, we've argued, personalized it to this veteran.

[00:40:35] Speaker 04:
And then further, we've argued that when you look at all the factors in whole, that there's nothing that explains that.

[00:40:42] Speaker 04:
We have nothing to go on to actually explain how Hispanic ethnicity was or was not

[00:40:48] Speaker 04:
a more likely ideological factor.

[00:40:50] Speaker 04:
And so we have to go with the plain words as they're written on the page.

[00:40:54] Speaker 04:
We did not, again, as I mentioned, we argued that here at this court.

[00:41:00] Speaker 04:
And I don't think that it's a harmless error if the court is inclined to find that there was a reliance on ethnicity.

[00:41:10] Speaker 04:
We argue that it's not harmful.

[00:41:11] Speaker 04:
We would argue the court should consider Lesage and Christian and how they correlated the burden of proof in the underlying claim to the harmless error, and that the government would have to show compelling evidence that he's not entitled to service connection in order to find an equal protection violation.

[00:41:27] Speaker 03:
So you agree there's a harmless error?

[00:41:28] Speaker 04:
I do not agree that, Your Honor.

[00:41:29] Speaker 04:
I do not agree.

[00:41:30] Speaker 03:
No, then that applies.

[00:41:31] Speaker 03:
That that principle applies.

[00:41:33] Speaker 04:
I do not.

[00:41:33] Speaker 04:
I'm making an alternative argument.

[00:41:35] Speaker 04:
And just in the abundance of caution,

[00:41:37] Speaker 04:
I don't believe that harmless error can apply to an equal protection.

[00:41:40] Speaker 04:
It can apply to due process because that's a more fluid concept.

[00:41:43] Speaker 04:
Equal protection, particularly in the context of ethnicity and race, requires strict scrutiny in saying that there's harmless error in an equal protection violation unless there was, as there was in Christian, clear evidence that a group of male, I'm sorry, of white officers would not have been retained in military service even but for the minority preference.

[00:42:04] Speaker 04:
There was convincing evidence in that case

[00:42:07] Speaker 04:
And in that case, the court found it.

[00:42:08] Speaker 04:
But in any other case where you're looking at here, you're not looking at compelling or convincing evidence.

[00:42:13] Speaker 04:
You're not even looking at substantial evidence that the classification didn't play a role.

[00:42:18] Speaker 04:
And so because of that, if the court is to find there is a harmless error in an equal protection context, what that means is that it essentially reduces strict scrutiny to rational basis, which has never been permitted by the Supreme Court.

[00:42:32] Speaker 04:
If there's no further questions, thank you, Your Honor, for the opportunity to present the argument.

[00:42:37] Speaker 03:
Thank you.