[00:00:00] Speaker 04:
We have multiple cases before the court this morning.

[00:00:05] Speaker 04:
Five cases total, one has been submitted, and four will be argued today.

[00:00:12] Speaker 04:
But before we get to that business, we have some other important business.

[00:00:19] Speaker 04:
And I understand that Judge Clevenger, you have a few motions that you would like to make.

[00:00:24] Speaker 00:
Thank you, Madam Presiding Judge.

[00:00:27] Speaker 00:
I have two motions to make that concern adding members to the bar of this court.

[00:00:37] Speaker 00:
First, I will move the admission of Matthew A. Lembo, who is a member of the bar and good standing in the highest court in the state of New Jersey.

[00:00:48] Speaker 00:
I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications.

[00:00:55] Speaker 00:
I have a second motion in which I move the admission.

[00:01:00] Speaker 00:
You have to remain standing.

[00:01:01] Speaker 00:
I move the admission of Kai Yee Zee, who is a member of the Bar and is good standing in the highest court of the state of California.

[00:01:11] Speaker 00:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:01:17] Speaker 00:
I can make those two averments about satisfaction of the qualifications

[00:01:24] Speaker 00:
On a personal basis, each of these gentlemen have served over the last year as my law clerks.

[00:01:32] Speaker 00:
It's an honor to have had them serve me and serve the court.

[00:01:36] Speaker 00:
I hope that if the motion is granted, we'll see both of you back here in front of the court many times in the future.

[00:01:46] Speaker 04:
Should we consider the motion?

[00:01:47] Speaker 04:
Yes, and I support the motion.

[00:01:51] Speaker 04:
It was a close call, but the motion is granted.

[00:01:55] Speaker 01:
Welcome to the bar.

[00:02:19] Speaker 04:
OK, the first case before the court for argument today is Dollison versus Wilkie.

[00:02:25] Speaker 04:
It is an appeal from the Court of Appeals for Veterans Claims.

[00:02:30] Speaker 04:
Mr. Carpenter, I understand that you want five minutes for rebuttal?

[00:02:33] Speaker 02:
Yes, ma'am.

[00:02:34] Speaker 04:
OK.

[00:02:35] Speaker 04:
You may begin.

[00:02:36] Speaker 02:
May it please the court.

[00:02:37] Speaker 02:
Kenneth Carpenter, appearing on behalf of Mike Dollison.

[00:02:42] Speaker 02:
The issue in this case is whether or not the Veterans Court heard as a matter of law

[00:02:46] Speaker 02:
by failing to require that the Board of Veterans' Appeals apply the rule of law created in Cohen versus Brown.

[00:02:53] Speaker 00:
Mr. Carver, before we get to the merits of your appeal, I'm not sure that you have standing to be here.

[00:03:01] Speaker 00:
The government, in its brief, raised the question of whether or not your client has suffered any prejudice by getting an MDD diagnosis instead of PTSD.

[00:03:12] Speaker 00:
And as I understood your reply to that President's argument, you said, well, you didn't think so.

[00:03:18] Speaker 00:
I'm sorry.

[00:03:19] Speaker 00:
I didn't see any articulated response in your reply brief to the challenge to whether or not your client has suffered any prejudice.

[00:03:29] Speaker 00:
So can you tell us what injury in fact, what does your client stand to gain by having a diagnosis of PTSD instead of MDD?

[00:03:41] Speaker 02:
It has to do with the evaluation of his disability.

[00:03:45] Speaker 02:
The disability for a psychiatric disability is rated under a general rating criteria by the VA, and it goes based upon the severity of the symptoms

[00:03:57] Speaker 02:
The symptoms of major depressive disorder are much more narrow than the symptoms of post-traumatic stress disorder.

[00:04:04] Speaker 00:
But what do you get?

[00:04:05] Speaker 00:
What does your client win if the label of PTSD is put on the diagnosis of MDD?

[00:04:12] Speaker 02:
He potentially gets a higher rating than the rating that was assigned.

[00:04:16] Speaker 00:
Higher rating of?

[00:04:18] Speaker 02:
Scheduler rating for the degree of disability for his psychiatric disability.

[00:04:23] Speaker 05:
What is his current rating?

[00:04:26] Speaker 02:
On remand, the rating assigned to major depressive disorder was 50%.

[00:04:30] Speaker 02:
There are two available ratings left under the rating schedule of 50%, excuse me, 70%.

[00:04:35] Speaker 00:
That's the MDD that he got.

[00:04:36] Speaker 00:
That's outside the record, right?

[00:04:38] Speaker 02:
That's outside the record.

[00:04:39] Speaker 00:
That's right.

[00:04:40] Speaker 00:
So on a remand, he got a 50% MDD?

[00:04:43] Speaker 02:
Yes.

[00:04:43] Speaker 00:
And you're saying you think there's a possibility he can get a higher than 50%?

[00:04:48] Speaker 02:
A 70% or a 100% rating.

[00:04:51] Speaker 02:
That's correct.

[00:04:53] Speaker 02:
simply because there is a wider spectrum of symptoms in the diagnostic and statistical manual for the condition of post-traumatic stress disorder than the more narrow diagnostic label that was given by the VA examiner of major depressive disorder.

[00:05:13] Speaker 00:
Is that a spectrum of symptoms to establish the fact or to establish the degree?

[00:05:18] Speaker 02:
To establish the degree, not the fact.

[00:05:22] Speaker 02:
And that's why the presumption of meeting the criteria under DSM is so important in this case, because that presumption is afforded by a rule of law created by the Veterans Court.

[00:05:39] Speaker 02:
If that rule of law were to be applied, then Mr. Dollison would have received the presumption, and the burden would have shifted to the government to rebut that presumption.

[00:05:50] Speaker 02:
and merely having a diagnosis, or excuse me, an examination that says that he does not meet the criteria does not rebut the presumption per se.

[00:05:59] Speaker 00:
Why wasn't the presumption rebutted in this case by the examination that says he didn't meet the standards?

[00:06:06] Speaker 02:
because that is not sufficient evidence to rebut the presumption.

[00:06:10] Speaker 02:
The presumption carries with it a requirement that there be more evidence to overcome the presumption.

[00:06:21] Speaker 00:
Where do you get that out of Cohen?

[00:06:25] Speaker 02:
Out of Cohen, not.

[00:06:26] Speaker 02:
But out of the standard for a presumption, a presumption gives the benefit to the party to which it is being afforded.

[00:06:35] Speaker 02:
And then the other side, in this case the VA, would have to come forward with evidence that would overcome that presumption.

[00:06:43] Speaker 04:
There are different kinds of presumptions.

[00:06:44] Speaker 02:
Yes, there are.

[00:06:45] Speaker 04:
A state evidentiary presumption, yes.

[00:06:48] Speaker 04:
There is a presumption that assumes there must be additional weight.

[00:06:53] Speaker 04:
that is proffered by the party who wants to overcome the presumption.

[00:06:58] Speaker 04:
But we refer to presumptions all the time when all we're saying is that in the absence of any evidence to the contrary, we'll assume.

[00:07:08] Speaker 04:
But if there's evidence to the contrary, then the obligation is to weigh the evidence.

[00:07:13] Speaker 04:
And it's not necessarily something that has to be super evidence.

[00:07:17] Speaker 05:
And that's consistent with Cohen, right?

[00:07:20] Speaker 05:
That says it has to be presumed unless evidence shows to the contrary.

[00:07:23] Speaker 02:
To the contrary.

[00:07:25] Speaker 02:
And the fact is that that was not what was done by the board.

[00:07:31] Speaker 02:
What the board simply said was is that there was no evidence that PTSD met the criteria.

[00:07:42] Speaker 02:
And there was evidence.

[00:07:43] Speaker 02:
They simply did.

[00:07:44] Speaker 05:
Is that an issue you raised on appeal?

[00:07:45] Speaker 05:
Your issue on appeal is whether the Court of Veterans Appeals erred by not applying Cohen.

[00:07:53] Speaker 05:
That was the issue that you raised on appeal.

[00:07:55] Speaker 02:
That's correct, Your Honor.

[00:07:57] Speaker 05:
Well, didn't they address Cohen in detail in their opinion and explain why it is that it wouldn't apply and then say, even if it did apply, we would think that it was outweighed?

[00:08:09] Speaker 02:
But that, Your Honor, was the obligation of the board to do under the presumption.

[00:08:15] Speaker 02:
the board had an obligation to make that analysis.

[00:08:19] Speaker 02:
That was not the grounds on which the board made its decision.

[00:08:23] Speaker 02:
The board, in this case, made a finding.

[00:08:31] Speaker 00:
Well, then your appeal should have been on the basis of error by the board, not error by the CAVC.

[00:08:37] Speaker 02:
I'm sorry?

[00:08:37] Speaker 00:
Then your appeal should have been based on error by the BVA, not the CAVC.

[00:08:43] Speaker 00:
It shows the wrong target for your error argument.

[00:08:47] Speaker 02:
But it was the Veterans Court that said that it was not persuaded by Mr. Dollison's argument that the decision in Cohen

[00:08:59] Speaker 02:
required a reversal of the board's decision.

[00:09:02] Speaker 02:
This was the argument that was presented by Mr. Dollison to the Veterans Court, that it was error for the board to have not afforded Mr. Dollison the benefit of that presumption.

[00:09:15] Speaker 00:
Mr. Carver, the Cohen presumption was created, as I understand it, to bridge the gap between two regulations that existed at the time that the Cohen opinion was written.

[00:09:27] Speaker 02:
That's correct.

[00:09:28] Speaker 00:
And those regulations don't exist anymore.

[00:09:31] Speaker 00:
And the need for the Cohen presumption doesn't seem to me to exist in a case such as this, where all the diagnoses are happening well after the amendments of the regulations.

[00:09:44] Speaker 02:
Well, I respectfully disagree, Your Honor, because the post-traumatic stress disorder regulation at 3.304F is the only regulation that requires specifically that the diagnosis of post-traumatic stress disorder meet the diagnostic criteria.

[00:10:02] Speaker 02:
There is no comparable regulation that says that, for instance, major depressive disorder must meet the criteria of DSM.

[00:10:10] Speaker 00:
There is a specific regulation that talks in terms of... You're asking for a PTSD diagnosis, and as I understand the regulations now, it's very clear.

[00:10:19] Speaker 00:
It says if you do this, you've got to follow the diagnostic test.

[00:10:24] Speaker 02:
That's correct.

[00:10:26] Speaker 00:
And the Cohen presumption... And if you follow the diagnostic test here, your client loses.

[00:10:32] Speaker 02:
Well, respectfully, I disagree, Your Honor, because the

[00:10:35] Speaker 02:
You follow the diagnosis made by the treating mental health professionals, and the diagnosis was repeatedly and consistently post-traumatic stress disorder.

[00:10:45] Speaker 00:
In fact, no treating physician ever diagnosed... And the findings were that those diagnoses weren't following the protocol.

[00:10:53] Speaker 00:
But under the presumption in Cohen, the VA... Now, what I'm saying is I don't understand why we don't write an opinion saying that Cohen's presumption no longer has any vitality.

[00:11:05] Speaker 00:
It served its purpose while the regulations were in conflict and needed to be harmonized.

[00:11:11] Speaker 00:
The regulations are no longer in conflict.

[00:11:13] Speaker 00:
They don't need to be harmonized.

[00:11:14] Speaker 00:
So why do we continue to have a vestigial organ attached to PTSD analysis?

[00:11:22] Speaker 02:
And that certainly is within your purview, Your Honor.

[00:11:24] Speaker 00:
Why wouldn't that be the right thing to do?

[00:11:26] Speaker 02:
Because that is not appropriate.

[00:11:29] Speaker 02:
And this case is the perfect example of why it's not appropriate in the context of veterans cases.

[00:11:36] Speaker 02:
In veterans cases, the VA is supposed to be acting in a way that advocates for the veteran.

[00:11:43] Speaker 02:
This is supposed to be a non-adversarial system in which we do not compete between VA examiner opinions.

[00:11:50] Speaker 00:
That's the best argument for why we would keep the Cohen presumption alive under the new regulations?

[00:11:56] Speaker 00:
Yes, because the... Because it would be unfavorable to veterans to take it, in your case, to take it away?

[00:12:02] Speaker 02:
Yes.

[00:12:03] Speaker 04:
Let's assume we keep the Cohen presumption.

[00:12:05] Speaker 04:
What's your response to the alternative argument that the Veterans Court analyzed and said, even if the presumption applies, we believe it's overcome here?

[00:12:18] Speaker 02:
Because that is a chennery violation, if you follow that logic, because that was not the basis upon which

[00:12:25] Speaker 02:
The board made its decision.

[00:12:27] Speaker 02:
The board did not consider or apply the presumption.

[00:12:30] Speaker 02:
Now the Veterans Court on appeal is considering and applying the presumption and saying as we consider and apply it that we find that the presumption was overcome.

[00:12:41] Speaker 05:
But wait a minute.

[00:12:42] Speaker 05:
Now the issue you've raised on appeal specifically is whether the Veterans Court erred as a matter of law by failing to apply the rule of law created in Cohen.

[00:12:50] Speaker 05:
I just read directly from your brief and now you're saying that's a Chenery violation had they actually applied it.

[00:13:00] Speaker 02:
When they had to apply it in the sense that the board was required to apply it.

[00:13:06] Speaker 02:
The allegation, the averment of error made by Mr. Dollison to the Veterans Court was is that the board erred by failing to afford him the benefit of the presumption under Cohen.

[00:13:19] Speaker 02:
When it went to the Veterans Court, the Veterans Court said that they could apply it in the first instance.

[00:13:28] Speaker 05:
And I'm saying that in order to apply the presumption...

[00:13:39] Speaker 05:
I don't understand the consistency.

[00:13:41] Speaker 05:
That's what I'm asking you about.

[00:13:43] Speaker 05:
I understand the issue you're raising here.

[00:13:46] Speaker 02:
Well, I'm sorry.

[00:13:47] Speaker 02:
I was trying to respond to Judge O'Malley's question in the context in which it was presented.

[00:13:52] Speaker 05:
And my question to you is, how is what you're saying now consistent with your statement of the issue on appeal in your blue brief?

[00:14:01] Speaker 02:
That the Court of Appeals for Veterans Claims made a decision

[00:14:08] Speaker 02:
that said that the court was not persuaded that the appellant's reliance upon Cohen in arguing for reversal of the board's decision persuaded the court.

[00:14:24] Speaker 02:
Therefore, the court looked at the Cohen presumption.

[00:14:28] Speaker 02:
And I believe they misapplied the Cohen presumption when they did that.

[00:14:35] Speaker 02:
Because the Cohen presumption requires an analysis

[00:14:38] Speaker 05:
I understand your argument.

[00:14:42] Speaker 00:
Mr. Garvin, your complaint with the BVA opinion was that it simply didn't mention Cohen.

[00:14:47] Speaker 02:
Correct.

[00:14:48] Speaker 00:
It mentioned all the evidence.

[00:14:49] Speaker 02:
Yes.

[00:14:50] Speaker 00:
Right?

[00:14:50] Speaker 00:
Yes.

[00:14:51] Speaker 00:
And so what the CAVC is saying, and coming back to the presiding judge's question to you, the CAVC is saying, well, even if there is a Cohen presumption, there's no harm here because the evidence shows that it was effectively rebutted.

[00:15:07] Speaker 00:
And then the CAVC simply parrots all the evidence that was trotted out by the BVA, right?

[00:15:13] Speaker 02:
Correct.

[00:15:14] Speaker 00:
And so I don't think you can fairly say that the CAVC was deciding the case on a different ground than the BVA did.

[00:15:22] Speaker 00:
Just because the BVA didn't put the word Cohen in the mix.

[00:15:28] Speaker 02:
As I understand the board's obligation under 7104A, the board is obligated to apply all potentially applicable provisions of law

[00:15:37] Speaker 02:
The Cohen presumption was a potentially applicable provision.

[00:15:41] Speaker 02:
The board did not apply it.

[00:15:43] Speaker 02:
The failure to apply it violates the board's mandate under 7104A.

[00:15:48] Speaker 02:
For the court to then make the decision based upon the averment of error made by Mr. Dollison decides it then upon a ground other than the ground decided by the board.

[00:16:01] Speaker 02:
Okay.

[00:16:03] Speaker 04:
Thank you, Your Honor.

[00:16:03] Speaker 04:
We'll give you two minutes for rebuttal.

[00:16:11] Speaker 04:
Council, can you start with your harmless error argument?

[00:16:18] Speaker 04:
What's your response to Mr. Carpenter's view that this wouldn't be harmless because he could potentially get a higher rating for PTSD?

[00:16:27] Speaker 03:
Yes, Your Honor.

[00:16:29] Speaker 03:
We respectfully disagree with that view.

[00:16:31] Speaker 03:
My understanding of the way that disability ratings work, and in this case in particular, is that VA looks at the collection of symptoms in terms of their impact on occupational and employability issues, and then assigns a rating based on those symptoms.

[00:16:49] Speaker 03:
So our understanding is that Mr. Dollison's rating

[00:16:53] Speaker 03:
based on the totality of his symptoms, which have already been rated at 50%, would not change whether that 50% was rated as an MDD diagnosis or a PTSD diagnosis.

[00:17:04] Speaker 00:
In fact... Is there a wider spectrum at Mr. Carpenter averse in terms of the analysis?

[00:17:10] Speaker 00:
A wider spectrum of symptoms under PTSD?

[00:17:15] Speaker 00:
I mean, do you know the answer to this question?

[00:17:17] Speaker 00:
You're with your Justice Department, right?

[00:17:19] Speaker 03:
I don't know the answer to that question.

[00:17:21] Speaker 00:
Have you consulted with the VA on this issue?

[00:17:22] Speaker 03:
I have, and my understanding is the way the rating system works is that the symptoms that are present are rated so that the constellation of symptoms that Mr. Dollison is suffering has been rated at 50%.

[00:17:37] Speaker 03:
There are no other, the VA.

[00:17:39] Speaker 04:
Well, they didn't consider the other symptoms.

[00:17:41] Speaker 04:
They were only looking at those symptoms that would support a major depressive.

[00:17:45] Speaker 04:
disorder diagnosis.

[00:17:47] Speaker 04:
And so we can't possibly know whether or not there was some other symptom that they didn't really even consider that they might have factored in.

[00:17:56] Speaker 03:
That's not my understanding, Your Honor.

[00:17:58] Speaker 03:
This isn't in the record, so I'm cautious about this.

[00:18:01] Speaker 03:
But the rating actually says this collection of symptoms, diagnosed as MDD, claimed as PTSD, 50% rating.

[00:18:10] Speaker 03:
The VA is looking at all the symptoms that have been discussed in Mr. Dawson's medical history.

[00:18:15] Speaker 03:
There aren't everything that has been documented that is a symptom that he's experiencing is taken into account in the rating.

[00:18:23] Speaker 03:
And I should add, just for the record, that Mr. Dawson, although his psychological condition has been rated at 50%, he is currently on what's called a total disability for individual unemployability.

[00:18:38] Speaker 03:
So his rating is actually, he's getting 100%.

[00:18:41] Speaker 03:
at this time, because he's been rated based on not just his psychological symptoms.

[00:18:46] Speaker 00:
Well, does that affect the standing issue?

[00:18:47] Speaker 00:
I mean, if he's 100 percent rated under TDIU now, what can he possibly gain by getting a PTS diagnosis?

[00:18:55] Speaker 03:
I don't know, Your Honor, and that's... Anything?

[00:18:58] Speaker 00:
I'm sorry?

[00:18:59] Speaker 00:
Is there anything he could concrete that Mr. Dallas, that he could gain?

[00:19:04] Speaker 03:
No, Your Honor, but in the interest of being transparent with the court, I'm not clear, just because it goes beyond my expertise and in my consultations with VA, whether there is ever in a speculative way a possibility that that TDIU of 100% could change in 5, 10, or 20 years.

[00:19:24] Speaker 03:
But the symptoms, what is not going to change are the symptoms of Mr. Dollison's

[00:19:30] Speaker 03:
psychological illness diagnosed as MDD and claimed as PTSD that VA has identified and has rated as 50% disabling, regardless of whether... How do we start?

[00:19:42] Speaker 00:
There's an Article 3 requirement.

[00:19:44] Speaker 00:
There needs to be a direct and concrete injury.

[00:19:48] Speaker 00:
And you're telling us that there's not one, and Mr. Gartner is telling us there is one.

[00:19:53] Speaker 00:
Are we supposed to write an opinion that says, we don't know whether we have jurisdiction or not, but it's OK to proceed?

[00:19:59] Speaker 03:
Well, Your Honor, I think the appropriate way to deal with that issue is we've noted this as a prejudice issue.

[00:20:06] Speaker 03:
But there's a more straightforward jurisdictional issue that would logically precede an issue of prejudice.

[00:20:13] Speaker 00:
And that's the fact that we've to our jurisdiction.

[00:20:17] Speaker 00:
Judge Prince in this court treats this as an Article III standing issue.

[00:20:23] Speaker 00:
Treats it as a jurisdictional issue.

[00:20:28] Speaker 03:
Your Honor, we did not concede this as a jurisdictional issue.

[00:20:32] Speaker 03:
We concede this as a matter of if there's a violation.

[00:20:35] Speaker 05:
Do you think that there is article 3 standing in this case?

[00:20:40] Speaker 03:
It's not an issue we've contested, so I think in effect.

[00:20:43] Speaker 00:
The issue we're raising, that's our obligation as a court to make certain we have jurisdiction.

[00:20:48] Speaker 00:
The court handed down a decision on the 3rd of August in a case called JTEC Corporation versus GK Automotive.

[00:20:56] Speaker 00:
was an appeal coming out of the patent office.

[00:20:59] Speaker 00:
And it made very clear that there's an Article III standing, constitutional standing requirement in this court.

[00:21:05] Speaker 00:
There has to be injury in fact, that the injury has to be concrete and particularized.

[00:21:16] Speaker 00:
So.

[00:21:16] Speaker 03:
So I understand the point Your Honor is making.

[00:21:22] Speaker 03:
I would say that we could not see how Mr. Dollison, based on our understanding of how the VA rating system works, where he's been rated for this psychological illness, that rating, 50% disabled, is not going to change whether it has been diagnosed as MDD or PTSD.

[00:21:41] Speaker 03:
We can't see.

[00:21:42] Speaker 04:
But you argued it as a harmless error analysis.

[00:21:46] Speaker 04:
But you didn't really give us exact citations to all of the

[00:21:51] Speaker 04:
the criteria that they employ.

[00:21:53] Speaker 04:
And even now, you're not quite able to tell us that you're sure he wouldn't get any benefit from this.

[00:22:00] Speaker 03:
Well, I'm sorry, Your Honor.

[00:22:05] Speaker 03:
The answer to that

[00:22:07] Speaker 03:
is we cannot see how he could get any benefit for it.

[00:22:11] Speaker 03:
When I said I wasn't sure, I was mentioning the TDIU issue.

[00:22:14] Speaker 03:
I wanted to make it clear for the record that he's not getting 50%, but 100% now.

[00:22:18] Speaker 03:
I am not sure, ultimately, whether there is some reason that that could change.

[00:22:23] Speaker 03:
But we are sure, or at least we don't see any way, that his 50% rating based on his current psychological symptoms

[00:22:32] Speaker 03:
would change based on whether it's diagnosed.

[00:22:34] Speaker 00:
The question is, if he got a PTSD diagnosis, would his rating be 50% or greater?

[00:22:43] Speaker 03:
Yes, it would be because it's the same symptoms.

[00:22:46] Speaker 03:
The VA has not looked at only the symptoms that might be considered MDD symptoms.

[00:22:52] Speaker 03:
The VA, in giving Mr. Dollison a 50% rating, has looked at all of his symptoms collectively and rated them 50%.

[00:22:59] Speaker 03:
So for him to have a different

[00:23:01] Speaker 03:
rating, he would have to have a change in his symptoms, not a change in his diagnosis.

[00:23:05] Speaker 05:
Your earlier answers sounded a little bit less sure on that point to me.

[00:23:10] Speaker 05:
And so I think, just to make sure I understand, what you're saying now is that the symptoms that are considered for the rating for PTSD are not different from the symptoms that are considered for the rating for major MDD.

[00:23:26] Speaker 05:
Is that correct?

[00:23:28] Speaker 03:
I want to be precise about this, because obviously we want to be transparent with the Court.

[00:23:36] Speaker 03:
I think VA comes at that question from a different direction, which is to say that VA looks at the symptoms that are apparent and rates those symptoms.

[00:23:48] Speaker 04:
So under the DSM, the symptoms could be different, but you're saying that he is a person

[00:23:53] Speaker 04:
manifest so many symptoms.

[00:23:55] Speaker 03:
That's right.

[00:23:56] Speaker 03:
Those symptoms have been determined to be 50% disabling.

[00:23:58] Speaker 04:
And they decided that the symptoms put him in the major depressive disorder bucket rather than in the PTSD bucket.

[00:24:07] Speaker 03:
Well, that's what the examination that is in the record at pages 45 to 56 made a determination.

[00:24:14] Speaker 03:
VA's rating, which is not part of the record, but I have read, says for his psychological illness,

[00:24:22] Speaker 03:
50 percent claimed, diagnosed as MDD, claimed as PTSD.

[00:24:28] Speaker 03:
So VA is looking at the totality of his symptoms as they are present today and saying, this has been put in the MDD bucket, he claims it as a PTSD bucket, but in either case, it's 50 percent disabling, and we're giving him, you know, every bit of that 50 percent.

[00:24:43] Speaker 04:
So assume that we find either that there is standing or that standing

[00:24:52] Speaker 04:
is a waivable argument, and you've waived it by not raising it here.

[00:24:56] Speaker 04:
And we get to the merits of the legal argument.

[00:25:01] Speaker 04:
I'm confused by your other jurisdictional argument, because clearly this is a legal issue.

[00:25:08] Speaker 04:
He said there is a Cohen presumption that was supposed to apply both at the board and at the Veterans Court, and it wasn't applied.

[00:25:16] Speaker 04:
How is that not a legal issue within the purview of our jurisdiction?

[00:25:20] Speaker 03:
It's not a legal issue because, at base, this claim is not about Cohen.

[00:25:26] Speaker 03:
The Veterans Court effectively applied Cohen and said, even if it applies, this is a matter of factual weighing, which is a factual determination.

[00:25:38] Speaker 04:
But isn't the weighing supposed to be done by the board in the first instance, and the board is supposed to do that in light of the presumption?

[00:25:45] Speaker 03:
Well, the board here did

[00:25:48] Speaker 03:
do that weighing.

[00:25:49] Speaker 03:
It specifically.

[00:25:50] Speaker 04:
It never referred to the presumption.

[00:25:52] Speaker 04:
It just simply said, we're not buying those diagnoses, rather than saying we assume that they do satisfy the DSM criteria.

[00:26:01] Speaker 03:
I think that goes to the issue that counsel raised in his opening remarks.

[00:26:06] Speaker 03:
The point here is that Cohen is really not applicable.

[00:26:10] Speaker 03:
This is a matter of weighing competing factual determinations

[00:26:15] Speaker 03:
which is something that Cohen, as it went on, on page 140 of that decision, not just in that parenthetical that's part of the statement about the presumption, but the continuing paragraphs after that said, look, this is just about whether you can reject a diagnosis as not compliant with the DSM.

[00:26:35] Speaker 03:
No one here rejected the diagnoses.

[00:26:37] Speaker 03:
Cohen goes on to say, and I'm paraphrasing several paragraphs here, but of course VA can seek

[00:26:43] Speaker 03:
clarification, and VA can engage in a weighing analysis between competing diagnoses.

[00:26:49] Speaker 03:
That's what Cohen says.

[00:26:51] Speaker 03:
I think it's fair to say that when the board is simply looking at weighing competing diagnoses, and that's clearly what's going on, it talks about how one diagnosis has greater probative weight than the other diagnosis.

[00:27:03] Speaker 04:
But it did talk about the fact that the treating physician diagnoses, the board said that they didn't feel that it satisfied the DSM criteria.

[00:27:13] Speaker 04:
And so how do you get over the presumption that you're supposed to assume it did?

[00:27:17] Speaker 04:
You can weigh it for other reasons and say that you think that the second view was more thoughtful, more developed, whatever.

[00:27:28] Speaker 04:
But that's not the same as saying they didn't satisfy the criteria when Cohen says we're supposed to presume that they did.

[00:27:35] Speaker 03:
Well, the board did not.

[00:27:37] Speaker 03:
throw out or reject the first diagnosis for not being in conformity with the DSM criteria.

[00:27:43] Speaker 03:
It specifically accepted that diagnosis and simply said that we find that the more recent diagnosis which was supported by PTSD specific testing that had a thorough analysis that explained the basis for its conclusion and went through all the DSM criteria was more probative.

[00:28:00] Speaker 03:
So Cohen really doesn't come up there.

[00:28:03] Speaker 03:
One, because

[00:28:05] Speaker 03:
The board and the Veterans Court are not throwing out.

[00:28:08] Speaker 00:
You said that the board wasn't throwing out the psychiatrist thing on the basis that the board clearly says that psychiatrist diagnosis was not supported by similar testing, i.e.

[00:28:23] Speaker 00:
DSM.

[00:28:26] Speaker 03:
And on that basis, it found that the

[00:28:30] Speaker 03:
that the PTSD-specific examination.

[00:28:32] Speaker 00:
I'm just getting back to the presiding judge's question to you about whether or not did the board ever give the Topeka psychiatrist diagnosis of PTSD any presumptive weight as having satisfied DSM?

[00:28:48] Speaker 00:
She asked you that question.

[00:28:49] Speaker 03:
And our answer is yes, it did.

[00:28:51] Speaker 03:
It did not reject it or throw it out.

[00:28:54] Speaker 00:
It rejected, it threw out the Topeka psychiatrist's diagnosis as not being supported by DSM testing.

[00:29:01] Speaker 03:
Well, what it said is it gave it less weight.

[00:29:05] Speaker 00:
I'm reading a sentence that says the VAMC psychiatrist, that's the Topeka doctor.

[00:29:10] Speaker 00:
is not supported by a similar testing or explanation.

[00:29:13] Speaker 00:
A similar testing and explanation refers back up above to the diagnosis that followed the DSM.

[00:29:22] Speaker 03:
That's right, Your Honor.

[00:29:23] Speaker 03:
So it did note the ways in which the former diagnosis had not gone through the DSM criteria.

[00:29:31] Speaker 03:
But it specifically did not say, we're not going to consider this or reject it entirely.

[00:29:38] Speaker 03:
What it ultimately did is engage in a classic factual determination, as this Court has recognized in several cases.

[00:29:45] Speaker 00:
Why should the Cohen presumption have any relevance in today's world, where the reason for its creation has disappeared?

[00:29:54] Speaker 00:
Why isn't it vestigial?

[00:29:56] Speaker 03:
We would agree, Your Honor, that it does not.

[00:29:59] Speaker 03:
I mean, here, the Veterans Court itself, the CIBC, didn't ask in your briefing.

[00:30:04] Speaker 00:
for us to hold that the Cohen presumption simply has no play, that Mr. Carpenter is riding the wrong horse.

[00:30:11] Speaker 03:
Well, the CAVC did not reach that question.

[00:30:15] Speaker 00:
No, one judge's opinion is not going to overrule a presidential opinion by John Steinberg.

[00:30:21] Speaker 03:
Well, I would add, Your Honor, that I think the reason that it did not reach that question is because, again, this really isn't a Cohen issue.

[00:30:29] Speaker 03:
At the end of the day, because the

[00:30:33] Speaker 00:
Say for example, we decided it isn't Cohen issue if Cohen is alive because the board clearly didn't give any presumptive weight to the 2012 diagnosis in Topeka.

[00:30:49] Speaker 03:
Well, that's what the VA, the Veterans Court here addressed.

[00:30:53] Speaker 03:
It said even if Cohen were alive, and

[00:30:55] Speaker 03:
It seems self-evident that it wouldn't be because the language that we're interpreting isn't in the statute.

[00:31:00] Speaker 00:
But the terms of Cohen, if you're going to play Cohen by the rules, Cohen requires the board to make the judgment that somebody at the RO loused up and didn't do DSM.

[00:31:11] Speaker 00:
And then the board, and they're the ones, if anybody in the system are the fact boys or the fact people, it's the board.

[00:31:18] Speaker 00:
And so the board's the one that's supposed to kick it back down to the RRO and say, whoopsie-doo, 2012 Topeka diagnosis, you didn't use DSM.

[00:31:26] Speaker 00:
Right?

[00:31:27] Speaker 00:
And that didn't happen here.

[00:31:29] Speaker 03:
Well, that did happen here.

[00:31:31] Speaker 00:
And that's what the- That happened because one judge at the CAVC said, I'm going to weigh the evidence and tell you what the real is.

[00:31:39] Speaker 03:
No, Your Honor.

[00:31:40] Speaker 03:
What happened here and-

[00:31:43] Speaker 03:
This is evident in the board's decision, but it's also evident in the 2015 diagnosis.

[00:31:49] Speaker 03:
This is 100% consistent with Cohen.

[00:31:52] Speaker 03:
Cohen specifically says that VA can seek clarification if a clarification is necessary.

[00:32:02] Speaker 03:
That's clearly what was the case here when you

[00:32:06] Speaker 03:
look at the examiner's determination of pages 49 to 50 of the appendix, he talks about how the medical record up until that point was inconsistent.

[00:32:16] Speaker 03:
VA, at that point, consistent with Cohen, and this is what the Veterans Court said at page 3 of the appendix, sent the case back for further examination and clarification.

[00:32:27] Speaker 03:
They got that further examination and clarification.

[00:32:30] Speaker 03:
consistent with not just Cohen, but also what the regulations today require.

[00:32:35] Speaker 04:
You're past your time, but I just want to close the circle on this in terms of where I started.

[00:32:39] Speaker 04:
So your point is not that we don't have jurisdiction.

[00:32:44] Speaker 04:
Your point is that they didn't violate Cohen, isn't it?

[00:32:49] Speaker 04:
I mean, you say, well, Cohen doesn't really apply here because they didn't really violate it, and therefore you don't have jurisdiction.

[00:32:53] Speaker 04:
But that's not really correct.

[00:32:55] Speaker 04:
We have jurisdiction over the legal question of whether Cohen was properly applied.

[00:32:59] Speaker 04:
And your argument is that it was.

[00:33:03] Speaker 03:
Well, certainly we would agree that to the extent Cohen is applicable, it was properly applied.

[00:33:08] Speaker 03:
That's our merits argument.

[00:33:09] Speaker 03:
But on the jurisdictional issue, the question that Mr. Dollison is raising here is still a factual question, because he's, in fact, not saying that they applied Cohen incorrectly, but that at the end of the day, Cohen doesn't allow this, or not Cohen doesn't allow, but under Cohen,

[00:33:29] Speaker 03:
There was an improper weighing of evidence.

[00:33:32] Speaker 00:
That's a factual question.

[00:33:33] Speaker 00:
Mr. Kerr was not challenging the weighing.

[00:33:36] Speaker 00:
Mr. Kerr was not.

[00:33:37] Speaker 00:
He's simply saying, cut me some slack.

[00:33:41] Speaker 00:
I was supposed to get a presumption that the Topeka doctor followed DSM in his diagnosis.

[00:33:49] Speaker 00:
And I didn't get that.

[00:33:51] Speaker 00:
That's what he says Cohen gives him.

[00:33:57] Speaker 00:
down the road problem, he simply wants at the front door.

[00:34:00] Speaker 00:
I think I'm right.

[00:34:01] Speaker 00:
We'll hear from Mr. Carpenter saying, give me what I get in putting something on the scale.

[00:34:07] Speaker 00:
I had something that was supposed to go on the scale, never went on the scale, as presumptive DSM analysis.

[00:34:15] Speaker 00:
OK, we need to move on.

[00:34:16] Speaker 04:
We'll give Mr. Carpenter three minutes instead of two.

[00:34:25] Speaker 02:
Dealing with the question of this court's jurisdiction, it is true that there was a total rating based upon unemployability assigned.

[00:34:37] Speaker 02:
But that total rating is not permanent.

[00:34:41] Speaker 02:
And that total rating may be taken away at any time, particularly if the veteran goes back to work.

[00:34:48] Speaker 02:
If the veteran is able to go back to work,

[00:34:50] Speaker 02:
then his rating will be based upon what the rating criteria is.

[00:34:55] Speaker 00:
Yeah, I don't think that causes you a problem.

[00:34:57] Speaker 00:
The question is whether or not there are additional factors in a PTSD analysis that might be looked at that weren't looked at in the MDD.

[00:35:09] Speaker 02:
And, Your Honor, I am more than happy to take a presidential decision from this Court that adopts what the government just said on the record, that when they evaluate

[00:35:20] Speaker 02:
They are evaluating for Mr. Dollison's symptoms for post-traumatic stress disorder.

[00:35:26] Speaker 02:
In the more than 30 plus years that I've been doing this work, that has never been the case.

[00:35:31] Speaker 02:
And that, in fact, what the VA does is to compete or to use non-service-connected conditions and those symptoms to detract from the rating because those are based upon a non-service-connected disability.

[00:35:48] Speaker 02:
Only if a condition is service-connected, not claimed as post-traumatic stress disorder, but actually service-connected for post-traumatic stress disorder, is the condition evaluated for rating purposes.

[00:36:03] Speaker 02:
Now, in terms of the notion of seeking clarification as referenced in the language in Cohen, as the government suggests,

[00:36:17] Speaker 02:
In fact, what happened here, Your Honors, is that there are various references to depression as part of the symptomatology that Mr. Dollison experienced prior to his VA examination.

[00:36:32] Speaker 02:
Never in any medical record was a diagnosis made of major depressive disorder, which is a different psychiatric diagnosis under DSM than major depressive disorder.

[00:36:46] Speaker 02:
That was the first time that that diagnosis had been made, and the first time that any doctor had said that Mr. Dollison's VA diagnoses from treating doctors did not meet the criteria under DSM.

[00:37:07] Speaker 02:
The criteria under DSM is the critical piece, and the reason that Cohen has continuing viability

[00:37:15] Speaker 02:
because of the unique nature of post-traumatic stress disorder and its symptoms.

[00:37:21] Speaker 04:
Let me ask you one last question.

[00:37:23] Speaker 04:
So Cohen, you say that Cohen says you have to have this presumption.

[00:37:26] Speaker 04:
So is it your position that the presumption can't be overcome by evidence indicating that the original diagnoses were flawed?

[00:37:43] Speaker 02:
That is certainly my view, but I have to say to the court in candor, there is no case law that addresses that.

[00:37:50] Speaker 02:
This is a judicially created presumption that doesn't deal with the rebuttal portion of the presumption.

[00:37:57] Speaker 02:
And obviously, it would be of tremendous benefit to veterans to understand what they get for that presumption.

[00:38:06] Speaker 02:
Thank you very much, Your Honor.

[00:38:08] Speaker 04:
Thank you.