[00:00:02] Speaker 04:
Your Honor, may I just have one?

[00:00:06] Speaker 03:
It's okay.

[00:00:06] Speaker 03:
The argument is concluded, Counsel.

[00:00:09] Speaker 04:
Thank you.

[00:00:36] Speaker 03:
Next case is John Grace, if that's the proper pronunciation, versus the Secretary of Veterans Affairs, 2017-15-62.

[00:00:46] Speaker 03:
Line of counsel is ready.

[00:00:58] Speaker 03:
Mr. Sybil?

[00:01:04] Speaker 00:
Thank you, Your Honor.

[00:01:05] Speaker 00:
I may please the court.

[00:01:06] Speaker 00:
I'm Joshua Sippel.

[00:01:07] Speaker 00:
I represent the Veteran Appellant.

[00:01:09] Speaker 00:
In this case, Mr. John Gerace.

[00:01:14] Speaker 00:
This appeal has two issues, two main issues.

[00:01:18] Speaker 00:
First, the duty to assist requires the VA to make all possible efforts to obtain relevant records, including reserve records and post-service records.

[00:01:28] Speaker 00:
Second, fundamental fairness requires that the appealing veterans

[00:01:34] Speaker 00:
be allowed to reply to arguments raised by the secretary's brief.

[00:01:40] Speaker 00:
The decision of the Veterans Court below is wrong on both counts, and it should be reversed.

[00:01:47] Speaker 00:
Before we get to that.

[00:01:48] Speaker 02:
The court did cite the wrong standard, and apparently it's been doing that a lot.

[00:01:53] Speaker 02:
But where in the record do you believe you can establish that they actually applied the wrong standard?

[00:02:02] Speaker 00:
In two places, Your Honor.

[00:02:03] Speaker 00:
Um, and I was, we'll get to this in much more detail, but I'll just preview them now.

[00:02:09] Speaker 00:
First one is applying the adequately identified standard, uh, in an incorrect manner to, um, the adequately identified standard only applies to private treatment records and non-VA government records.

[00:02:21] Speaker 00:
And there's a line in the, in the, uh, Veterans Court's decision that says the secretary is correct that the veteran did not adequately identify VA records.

[00:02:30] Speaker 00:
And the statute does not require that.

[00:02:32] Speaker 00:
The second one is that the Veterans Court imposed an active duty requirement on triggering the duty to assist in obtaining reserve records and post-service records.

[00:02:45] Speaker 00:
And that requirement is not contained in the statute either.

[00:02:49] Speaker 02:
As to the first, I agree that the court was wrong as to what the standard is.

[00:02:53] Speaker 02:
Again, my question is, is it clear that they actually applied the wrong standard?

[00:03:00] Speaker 00:
This occurred during the court's analysis of whether the duty to assist had been satisfied by the VA, and it found that the VA had satisfied it, applying that incorrect standard.

[00:03:13] Speaker 00:
So I think in the context of a court's legal analysis, if it quotes the wrong standard and applies it to facts that it shouldn't have, that is necessarily misinterpreting and misapplying the law, and applying it to

[00:03:30] Speaker 00:
the facts of the case, it was just inherent in the analysis.

[00:03:35] Speaker 02:
So what would you want us to do?

[00:03:37] Speaker 02:
Dedicate and remand for them to apply the correct standard?

[00:03:40] Speaker 00:
That's exactly what we'd like, yes.

[00:03:44] Speaker 04:
I know, before we get into those... How did the court not apply the correct standard?

[00:03:49] Speaker 04:
What happened?

[00:03:51] Speaker 00:
The court, in looking at whether the Veterans Administration had satisfied its duty to assist,

[00:04:00] Speaker 00:
We argued that the VA did not do so because it didn't obtain and consider his reserve records or post-service records.

[00:04:09] Speaker 03:
But he has to indicate records that should be obtained, doesn't he?

[00:04:14] Speaker 00:
Actually, no, Your Honor.

[00:04:14] Speaker 00:
That's the whole issue here.

[00:04:18] Speaker 00:
Section 5103A imposes no obligation on veterans for certain categories of documents.

[00:04:24] Speaker 00:
That includes service records.

[00:04:25] Speaker 00:
That includes reserve service records.

[00:04:27] Speaker 00:
And then it goes up from there.

[00:04:29] Speaker 00:
Then there's a slight standard, a slight obligation of identification.

[00:04:33] Speaker 00:
But it doesn't arise identification for VA records.

[00:04:36] Speaker 00:
It's only providing information sufficient for the VA to identify.

[00:04:40] Speaker 00:
So the veteran himself does not have to identify the VA's own records.

[00:04:45] Speaker 00:
He only has to provide information sufficient for the VA to do that itself.

[00:04:48] Speaker 03:
But he didn't do that.

[00:04:50] Speaker 00:
I believe he did.

[00:04:51] Speaker 00:
And I think we make the argument below that he didn't do that.

[00:04:52] Speaker 03:
In any event, that's a question of fact.

[00:04:54] Speaker 00:
That is a question of fact that we think will be determined

[00:04:57] Speaker 00:
correct was determined incorrectly because the court misinterpreted the law.

[00:05:01] Speaker 00:
If the court misinterprets the law and gets the facts wrong, just because the court gets the facts wrong doesn't destroy jurisdiction.

[00:05:09] Speaker 00:
Jurisdiction is only destroyed if the only issue is the determination of fact.

[00:05:14] Speaker 00:
If the court applied the correct standard and got the answer wrong, then I would agree that there's no jurisdiction.

[00:05:20] Speaker 01:
How are the reserve records relevant?

[00:05:22] Speaker 01:
There is a relevance requirement, correct?

[00:05:27] Speaker 00:
It's funny you ask that, Your Honor.

[00:05:29] Speaker 00:
In preparing for this argument, I came across some cases where they seem to say that there is no relevance requirement.

[00:05:34] Speaker 00:
But I will concede for the sake of this.

[00:05:35] Speaker 03:
Well, it's in every portion of the statute.

[00:05:37] Speaker 00:
I understand that, Your Honor.

[00:05:39] Speaker 00:
And I didn't cite it in the briefing, so I won't raise it up here.

[00:05:41] Speaker 00:
But I will concede that there is a relevance requirement.

[00:05:43] Speaker 00:
But this court in Moore also held that the VA cannot refuse to obtain records based on a prejudgment of relevance without obtaining them just based on the timing alone.

[00:05:56] Speaker 02:
Right, so the relevance determination has to be made once the records are obtained.

[00:06:00] Speaker 00:
That's what appears to be what this court's holding in Moore was.

[00:06:03] Speaker 00:
And that's what we think the court should do below.

[00:06:05] Speaker 00:
I'd like to ask the court if you'd like me to address the jurisdictional issue before we proceed.

[00:06:14] Speaker 02:
What would make them relevant, even if they had to obtain them, assuming they did?

[00:06:22] Speaker 00:
Well, just one example that we had mentioned in our briefing below.

[00:06:26] Speaker 00:
Mr. Gerasa's injuries are degenerative in nature.

[00:06:29] Speaker 00:
He had discrete incidents during his active service, and for which he claims he received treatment.

[00:06:40] Speaker 00:
But those have worsened over the years.

[00:06:42] Speaker 00:
And it's possible that he received some sort of medical examination where this would have come to light.

[00:06:49] Speaker 00:
during his reserve service or during a post-service checkup.

[00:06:54] Speaker 04:
His active service workers don't even back up his claim that these events occurred.

[00:06:59] Speaker 00:
That is true, Your Honor, and that's why we argued that there's only two pages.

[00:07:04] Speaker 04:
Doesn't that finding alone trump everything?

[00:07:07] Speaker 00:
Oh, not at all, Your Honor, because there's evidence to the contrary.

[00:07:09] Speaker 00:
There's evidence from private physicians that corroborate Mr. Gerais' account of the facts.

[00:07:17] Speaker 04:
And those are based on his claims alone.

[00:07:19] Speaker 04:
The board here looked at the actual active service records and said, there's nothing here that shows us that these events ever occurred.

[00:07:30] Speaker 00:
That's true.

[00:07:30] Speaker 00:
So I have two things to say about that.

[00:07:32] Speaker 00:
The first is that there are only two pages of what's called SIPCOL treatment records in those entire, some scores of service records.

[00:07:41] Speaker 00:
There's only two pages of treatment records for his entire active service, which leads us to believe that there may be some missing.

[00:07:47] Speaker 00:
Now, that may or may not be the case, but we think the VA should follow up on that.

[00:07:53] Speaker 00:
Also, the second point on that is if there isn't enough evidence to decide the claim, Section 5103A requires the VA to order a medical examination.

[00:08:04] Speaker 00:
And that's another point that we think gets into our reply brief issue.

[00:08:10] Speaker 00:
But the board incorrectly used its own medical judgment to determine that they did not need to order

[00:08:15] Speaker 00:
a medical examination, because in their opinion, if these injuries had actually occurred.

[00:08:20] Speaker 04:
That's the issue that's subject to the waiver argument.

[00:08:23] Speaker 00:
Is that correct?

[00:08:24] Speaker 00:
That concerns the waiver argument, yes, Your Honor.

[00:08:27] Speaker 00:
I'm happy to turn to that now, if you would like to hear about that.

[00:08:30] Speaker 02:
Let me just ask one.

[00:08:31] Speaker 02:
If he was on standby reserves during that time frame, wouldn't any medical records be in the hands of a private physician, as opposed to the government?

[00:08:47] Speaker 00:
I don't know the answer to that question.

[00:08:50] Speaker 00:
There may be records arising from some VA treatment or from some service during his reserve time.

[00:09:01] Speaker 00:
We just don't know.

[00:09:02] Speaker 00:
That's the problem, because we point out in our brief, the Veterans Court seems to think that the fact that they don't know, that that absolves them of the duty to follow up.

[00:09:10] Speaker 04:
But the veterans are not arguing that this happened during any type of reserve status.

[00:09:15] Speaker 04:
He's arguing this happened during active service.

[00:09:17] Speaker 00:
Your Honor, and we think that's the exact misunderstanding that the Veterans Court made.

[00:09:20] Speaker 00:
They said he didn't.

[00:09:21] Speaker 00:
He's claiming it happened during active service, and that's all we have to look at, but that's just not the standard.

[00:09:26] Speaker 00:
The VA has to obtain all relevant records.

[00:09:28] Speaker 00:
And there's no active duty requirement.

[00:09:30] Speaker 04:
That's the point.

[00:09:31] Speaker 04:
At that point, if they make a finding that the records don't indicate that these events ever occurred, how would reserve records that are made years later outweigh that?

[00:09:48] Speaker 00:
Well, as I said to Judge O'Malley, it's quite possible, especially in the context of the degenerative symptoms that Mr. Dries has,

[00:09:56] Speaker 00:
that he was a young man during his active duty.

[00:09:59] Speaker 00:
He said that he wanted to tough it out when these things happened.

[00:10:01] Speaker 00:
They may not have appeared in the record.

[00:10:03] Speaker 00:
But as he aged during reserve service, as maybe he was visiting VA doctors, we don't know the situation.

[00:10:08] Speaker 00:
But it's possible that some of his symptoms did get recorded in the records.

[00:10:13] Speaker 00:
And those records have not been obtained.

[00:10:15] Speaker 00:
And the Veterans Court.

[00:10:16] Speaker 04:
He claims that he got medical treatment.

[00:10:19] Speaker 04:
when he was hung over the ship.

[00:10:20] Speaker 00:
Yes, that's correct.

[00:10:21] Speaker 00:
That's correct.

[00:10:21] Speaker 04:
And then also when the life support crushed his foot, he says he went and got medical help.

[00:10:28] Speaker 00:
That's absolutely right, Your Honor.

[00:10:29] Speaker 00:
He says he received medical treatment.

[00:10:31] Speaker 00:
He sought out help.

[00:10:33] Speaker 00:
And for some reason, it does not appear in the record.

[00:10:35] Speaker 04:
And that's a credibility determination that we can review.

[00:10:42] Speaker 00:
We're not asking the court to review the factual determination.

[00:10:46] Speaker 00:
We're asking the court

[00:10:47] Speaker 00:
to instruct the Veterans Court to apply the correct standard for all of these discrete issues.

[00:10:53] Speaker 00:
The adequately identified standard was improperly interpreted.

[00:10:57] Speaker 00:
The there is no active duty requirement for relevance.

[00:11:01] Speaker 00:
Relevance should not be prejudged based on timing of the facts, just as this Court has instructed in Moore.

[00:11:07] Speaker 00:
So we're not asking, well, we're not saying that the Court took the correct law and got the wrong result, and therefore we want this Court to fix it.

[00:11:15] Speaker 00:
We're saying that the Veterans Court misinterpreted the law, applied it incorrectly, and therefore got the wrong result.

[00:11:21] Speaker 00:
And we think when this Court instructs the Veterans Court to fix its misinterpretation, that it will get the correct result.

[00:11:26] Speaker 00:
We're not asking this Court to do that factual determination.

[00:11:32] Speaker 00:
I'd like to spend the last few minutes of my time discussing this reply brief issue.

[00:11:37] Speaker 00:
The Veterans Court's own rules and this Court's precedent require that appealing Veterans be given the opportunity to reply

[00:11:44] Speaker 00:
two arguments raised in the secretary's brief.

[00:11:48] Speaker 00:
38, excuse me.

[00:11:52] Speaker 00:
Veterans Court rule 28C.

[00:11:54] Speaker 00:
Of the Veterans Court's rules, 28C permits an appellant to file a brief in reply to the secretary's brief.

[00:12:04] Speaker 00:
And this court held in Netwood v. Central that when an issue is raised for the first time in the appellee's brief, fundamental fairness requires that the appellant be given an opportunity

[00:12:14] Speaker 00:
to respond.

[00:12:16] Speaker 00:
In his opening brief at the Veterans Corps, Mr. Dreyce argued that the VA, the board, should have ordered a medical examination to determine the etiologies and the symptoms of his claim.

[00:12:30] Speaker 00:
In response to that, on page 15 of the Secretary's brief at Appendix 79, the Secretary argued that the board did not have to do that

[00:12:40] Speaker 00:
Because in its opinion, if those injuries had actually occurred, they would have been recorded.

[00:12:46] Speaker 00:
That argument opened the door for Mr. Dreyce to step through and reply as the Veterans Court's rules and this Court's precedent entitles him.

[00:12:56] Speaker 00:
So I think it's fairly straightforward here.

[00:12:58] Speaker 00:
We raised an issue.

[00:13:00] Speaker 00:
The Secretary tried to rebut that issue, making an argument about medical judgment.

[00:13:05] Speaker 00:
And Mr. Dreyce is entitled to reply to that.

[00:13:08] Speaker 04:
Now, is it finding whether or not an occurrence took place during active service?

[00:13:17] Speaker 04:
Is that a medical opinion?

[00:13:18] Speaker 00:
I'm sorry, Your Honor, I did not understand.

[00:13:22] Speaker 04:
Is a finding whether an occurrence actually took place, the event itself, actually took place during active service?

[00:13:30] Speaker 04:
Are you saying that that's a medical opinion?

[00:13:32] Speaker 00:
No, that's a, that is the conclusion, but there's a specific medical judgment that underpins that conclusion, and that is that the types of injuries that are complained of would have been recorded had they occurred.

[00:13:43] Speaker 00:
And there's detailed case law in our briefing below analyzing why that, in this particular case, that was an incorrect medical judgment, because in certain cases the board can do that, but in this case it cannot.

[00:13:55] Speaker 00:
It depends on the type of injuries complained of.

[00:13:56] Speaker 00:
For example, if there's a compound fracture,

[00:13:59] Speaker 00:
then it's reasonable for the board to say, yeah, that would have appeared if it had actually occurred.

[00:14:03] Speaker 00:
But in cases like this, where there's internal injuries, where there's injuries to joints and not to compound fractures and things like that, the case law does not allow the board to make that subjective medical judgment without independent medical opinions from independent parties.

[00:14:20] Speaker 03:
Mr. Sibley, you wanted to save some time?

[00:14:22] Speaker 03:
Yes, thank you.

[00:14:24] Speaker 03:
Ms.

[00:14:24] Speaker 03:
Burbank?

[00:14:45] Speaker 05:
May I please the court?

[00:14:46] Speaker 05:
I'd like to first start with the standard that the court articulated in its decision.

[00:14:55] Speaker 05:
On page 13 of the appendix, the Veterans Court correctly states that service medical records do not require identification by the... Did the government error or

[00:15:14] Speaker 04:
mistakenly cite the wrong statute.

[00:15:18] Speaker 05:
The final decision, no, it does not, Your Honor.

[00:15:20] Speaker 04:
But it did at once.

[00:15:22] Speaker 05:
In the initial decision, which... But why is that?

[00:15:24] Speaker 04:
That seems to happen quite often.

[00:15:27] Speaker 05:
There are certainly, and in the 28-J letter that Mr. Garros submitted, that there is a repeated paragraph that has this incorrect quotation.

[00:15:42] Speaker 05:
that doesn't necessarily mean that the incorrect standard is applied.

[00:15:44] Speaker 05:
It's just a missing word in a quotation.

[00:15:47] Speaker 02:
Why shouldn't we send it back so the Veterans Court understands that they can't keep doing this?

[00:15:51] Speaker 02:
They can't apply an outdated regulation.

[00:15:54] Speaker 05:
Well, the issue here is that there was a motion for reconsideration, which was granted.

[00:15:59] Speaker 05:
And so the decision on review here doesn't include that error.

[00:16:03] Speaker 05:
The appendix at 13 correctly notes the standard.

[00:16:09] Speaker 05:
And then on pages 14 and 15,

[00:16:11] Speaker 05:
of the appendix, there's a discussion.

[00:16:13] Speaker 05:
And very specifically, the Veterans Court discusses the adequately identified requirement for private treatment records.

[00:16:23] Speaker 05:
It also talks about identification for VA records, which is required that there must be some information sufficient to locate the records, but does not apply that standard for service records.

[00:16:34] Speaker 05:
And that's what's at issue here.

[00:16:37] Speaker 02:
But is it your position that service records

[00:16:40] Speaker 02:
do not include reserve service records?

[00:16:43] Speaker 05:
That is not our position, Your Honor.

[00:16:45] Speaker 05:
The issue here is a factual one, which is that the board below, and this is at appendix 43, specifically finds that the service medical records are complete.

[00:16:57] Speaker 05:
That includes the reserve records, which on page 40, excuse me, 21 of the supplemental appendix

[00:17:08] Speaker 05:
This is part of the chronological record of care.

[00:17:11] Speaker 05:
There's several pages of discussion from 55 to 57.

[00:17:17] Speaker 05:
And then there's also in this chronological record of medical care a notation of his discharge.

[00:17:23] Speaker 05:
There's no indication that any records are missing, any medical records are missing from that reserve service period.

[00:17:34] Speaker 05:
It is the VA's practice and it is the Navy's practice

[00:17:38] Speaker 05:
at this time, prior to 1994, all service records, reserve records, as well as active records, get sent, currently they're sent somewhere else, but pre-1994 they were all sent to the National Personnel Records Center, and that's where these records were obtained.

[00:17:57] Speaker 05:
So all of the records are there, and as noted on pages two and three of the supplemental appendix, there's no active service

[00:18:07] Speaker 05:
during the period of reserve service.

[00:18:09] Speaker 05:
And that's what the Veterans Court discusses, that there's no training, there's no active duty training during that reserve service duty.

[00:18:21] Speaker 05:
There's nothing that would indicate in the record from his DD214, from the medical records, or even from his own statements before the VA to say that there would be any medical records

[00:18:35] Speaker 05:
missing from that reserve service, as Your Honor questioned.

[00:18:39] Speaker 02:
So is it your position that they looked for reserve records and couldn't find them, or that they decided that they didn't have to look?

[00:18:46] Speaker 05:
Your Honor, the board determined that the service medical records were complete, that what was sent from the personnel records center included all of his medical records.

[00:18:57] Speaker 05:
And on page 15 of the appendix, the Veterans Court notes that if there's an error in that

[00:19:03] Speaker 05:
in the record somehow that there was a period of active service or there was something that wasn't recorded, it can't correct that.

[00:19:12] Speaker 05:
But the full record for both his service record and his reserve service and his active service duty comprise service medical records that are complete.

[00:19:25] Speaker 05:
And that's what the board finds.

[00:19:26] Speaker 02:
That's an actual finding.

[00:19:28] Speaker 02:
So you're saying we got stuff.

[00:19:31] Speaker 02:
And it didn't have anything in there.

[00:19:32] Speaker 02:
So we determine it's complete.

[00:19:34] Speaker 02:
But we don't go back and inquire.

[00:19:37] Speaker 05:
Well, it doesn't go back and inquire, because there's no evidence on the record to indicate that it's incomplete.

[00:19:43] Speaker 05:
It doesn't cut off at 1957.

[00:19:45] Speaker 05:
There is notation of the 1963 discharge.

[00:19:49] Speaker 05:
There's evidence that says there's no period of active service.

[00:19:53] Speaker 05:
As Your Honor mentioned before, if one is in reserve service.

[00:19:57] Speaker 02:
So if it's not in active service,

[00:19:59] Speaker 02:
would medical records during that period be irrelevant?

[00:20:04] Speaker 02:
I mean, couldn't they be relevant to this question of degeneration?

[00:20:10] Speaker 05:
They could be relevant in certain circumstances, Your Honor.

[00:20:15] Speaker 05:
Yes.

[00:20:16] Speaker 05:
But I do want to note that counsel suggested that there's no relevance requirement and that, in fact,

[00:20:26] Speaker 05:
the VA must go and get all records to determine if they're relevant.

[00:20:29] Speaker 05:
And that's not this Court's ruling.

[00:20:31] Speaker 05:
In Goals v. Junseki, which post-dates more, the Court has explained that, in fact, the relevance standard, which is stated explicitly in the statute, is meaningful and does not mean that the VA must go get records to determine whether they are relevant.

[00:20:52] Speaker 05:
In certain circumstances, it can determine that they're not

[00:20:55] Speaker 05:
But that's not what the Veterans Court did here.

[00:20:58] Speaker 05:
What we're dealing with is a factual finding that the service records are complete.

[00:21:04] Speaker 05:
Because during the period of a standby reserve duty without any period of active duty, either training or otherwise, one would not necessarily expect any service medical records to exist.

[00:21:23] Speaker 05:
One would expect

[00:21:24] Speaker 05:
private treatment records to be applicable during that period, but not service records, or perhaps VA records.

[00:21:31] Speaker 02:
Again, it seems so circular.

[00:21:33] Speaker 02:
So you're saying you concede there's no burden on the veteran with respect to service records.

[00:21:38] Speaker 02:
And then you're saying we just assume they were complete because we wouldn't necessarily expect it.

[00:21:43] Speaker 05:
No, Your Honor.

[00:21:45] Speaker 05:
It's not an assumption that it's complete, but rather that there is an expectation that when the records

[00:21:54] Speaker 05:
purport to be complete.

[00:21:55] Speaker 05:
There's no evidence that they're incomplete.

[00:21:58] Speaker 05:
There's no evidence on the record suggesting that there was any service medical record missing.

[00:22:07] Speaker 05:
The VA, and this is in accordance with the statute and in accordance with its regulations, that when the VA concludes that the records are complete, it doesn't have to continue looking for records just because there is an allegation that

[00:22:24] Speaker 05:
perhaps maybe there might be something missing.

[00:22:26] Speaker 05:
It's making a factual finding that they're complete.

[00:22:28] Speaker 05:
And that's something this Court can't review.

[00:22:30] Speaker 05:
That's a factual determination.

[00:22:33] Speaker 05:
And it's not requiring an identification by the... This is not under an adequately identified standard, but rather a determination of whether these records are complete.

[00:22:45] Speaker 05:
And here, given the evidence below, the Board looked at these records, saw that there were

[00:22:54] Speaker 05:
At more than two pages, there's approximately 50 pages of medical records, which is in the supplemental appendix, mostly spanning from 1955 to 57 for his period of active service.

[00:23:10] Speaker 05:
But there are notations about his discharge from reserve duty.

[00:23:14] Speaker 05:
So again, there's no indication that they were truncated or that there was something missing.

[00:23:20] Speaker 05:
They covered that whole period, and so they

[00:23:25] Speaker 05:
are complete, and that's what the board determined as a factual matter, and that's what the Veterans Court was reviewing.

[00:23:33] Speaker 05:
It did not apply an incorrect standard for service records.

[00:23:39] Speaker 05:
It specifically broke out the service record question different from the identification requirement for private treatment records and for VA records.

[00:23:51] Speaker 05:
With respect to

[00:23:54] Speaker 05:
With respect to the reply brief issue, this court has found that the Veterans Court has broad discretion to apply its rules of practice.

[00:24:07] Speaker 05:
And to the extent that claimant appellant is arguing that the court should have applied its discretion differently and should have come up with a different

[00:24:24] Speaker 05:
determination of whether this was a new issue or not, that is, again, a factual issue or an application of fact to law that would be outside this Court's jurisdiction.

[00:24:36] Speaker 05:
But to the extent Mr. Garros is arguing that the whole rule of requiring a reply brief or requiring issues to be raised in the first instance

[00:24:54] Speaker 05:
in the opening brief rather than in the reply brief, Carbino is controlling here that the general rule is one that the Veterans Court has the authority to impose and has the discretion to apply on a case-by-case basis.

[00:25:15] Speaker 05:
The issue of whether this was sufficiently different or sufficiently linked to the

[00:25:23] Speaker 05:
VA's brief is, again, something that is a factual determination or an application of factual law.

[00:25:32] Speaker 05:
But if we were to discuss that, if we were to look at that application of the Veterans Court's discretion there, the way that the Veterans Court viewed this new issue was that what happened in the opening brief, the claimant

[00:25:53] Speaker 05:
the claimant argued that there was sufficient evidence that there may be a nexus, a nexus between an in-service event and his present condition.

[00:26:09] Speaker 05:
And so the issue was this nexus.

[00:26:11] Speaker 05:
And in response, the VA said, well, no, there isn't enough there, even with your private treatment records, because there's no evidence of an in-service event.

[00:26:24] Speaker 05:
That was in response to this Nexus question and wasn't about a medical determination, wasn't about this issue from Kahana.

[00:26:32] Speaker 05:
All of these issues were newly raised in its reply brief.

[00:26:35] Speaker 05:
And the Veterans Court acted well within its discretion to say that's a new issue and that's something that we're not going to consider.

[00:26:43] Speaker 05:
Just as this court can apply its discretion in determining whether a reply brief is raising a new issue and I might not

[00:26:53] Speaker 05:
consider a new issue on reply.

[00:26:55] Speaker 05:
And that is outside the context of the pro-veteran canon of statutory construction.

[00:27:10] Speaker 05:
When we're talking about applying this rule for reply briefs, that discretion is one, again, that is explicitly permitted in Carbino.

[00:27:22] Speaker 05:
And that is well within the statutory language, which says that the Veterans Court can make rules of practice.

[00:27:36] Speaker 05:
That doesn't mean that every single instance of application of its discretion will be one that ends up in the veterans' favor, sometimes just as with other issues of the Veterans Court discretion in applying its

[00:27:52] Speaker 05:
its rules of practice in the interest of fairness, in the interest of finality.

[00:28:00] Speaker 05:
Sometimes that means that the veteran can't make new claims.

[00:28:05] Speaker 05:
Unless the court has further questions, we respectfully request that the court dismiss the first issue for lack of jurisdiction and

[00:28:20] Speaker 05:
And to the extent Mr. Garasch is arguing for overturning Carbino, we ask that this court affirm.

[00:28:28] Speaker 03:
Thank you, counsel.

[00:28:30] Speaker 03:
Mr. Civil has a little rebuttal time left.

[00:28:34] Speaker 00:
Thank you, Your Honor.

[00:28:43] Speaker 00:
A couple of points in rebuttal here on the reply brief issue specifically.

[00:28:51] Speaker 00:
First point, the counsel is now arguing for the first time to this Court that it doesn't have jurisdiction to hear the reply brief issue.

[00:28:58] Speaker 00:
We didn't see that in the briefing below.

[00:29:00] Speaker 00:
It should be waived.

[00:29:03] Speaker 00:
But even regardless of that point, I think the Court clearly does have jurisdiction to decide the issue.

[00:29:11] Speaker 00:
It's a question of the Veterans Court's interpretations of its own procedural rules and of this Court's precedent.

[00:29:19] Speaker 00:
The misunderstanding, the misinterpretation by the Veterans Court is this.

[00:29:23] Speaker 00:
It seems to think, if you read the footnote, that any issue not expressly laid out in the opening brief can't be mentioned in the reply brief.

[00:29:31] Speaker 00:
But that's not what the general rule of reply briefs is, and it's not the specific rule of Carbino.

[00:29:37] Speaker 00:
Carbino specifically adds a qualifier that you can't raise an issue in the reply that hasn't been considered by the Secretary, hasn't been considered in the Secretary's brief.

[00:29:47] Speaker 00:
That happened here.

[00:29:48] Speaker 00:
And that's why the reply brief argument should be considered.

[00:29:54] Speaker 00:
Finally, this idea that the pro-veteran canon doesn't apply here, the pro-veteran canon applies universally to veterans' law.

[00:30:02] Speaker 00:
Congress established judicial review of veterans' claims to make sure that incorrectly denied appeals were granted, improperly denied claims for benefits were granted.

[00:30:15] Speaker 00:
And the only way for the veterans' court

[00:30:17] Speaker 00:
to do that, to live up to its obligation, is to listen to a veteran's arguments.

[00:30:22] Speaker 03:
Thank you.