[00:00:00] Speaker 03:
Whenever you're ready.

[00:00:23] Speaker 02:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. John Koopman.

[00:00:28] Speaker 02:
Mr. Koopsman's appeal believes that the Veterans Court relied upon a misinterpretation of the statutory provision for the presumption of soundness at 38 USC section 1111.

[00:00:42] Speaker 02:
The board correctly determined, and this is the pivotal finding in this case, that an April 1953 pre-induction examination showed no complaints or treatment for any ulcer or duodenal disease.

[00:00:55] Speaker 03:
In the red brief at five and six,

[00:00:58] Speaker 03:
The government says VA examiners found that, and then they quote, the condition clearly and unmistakably pre-existed Mr. Koopman's military service, even after resolving any reasonable doubt in Mr. Koopman's favor.

[00:01:15] Speaker 03:
Why didn't you discuss that in your board meeting?

[00:01:20] Speaker 02:
I didn't discuss it because I don't believe it's relevant to the question that was presented

[00:01:26] Speaker 02:
by the decision made by the Veterans Court.

[00:01:28] Speaker 02:
The decision made by the Veterans Court was that the fact that the rating board did not specifically reference the presumption of soundness or aggravation or did not specifically recite the applicable standard of proof, the holdings of board decision that constituted as a matter of law relying upon this court's decision and Natale.

[00:01:53] Speaker 02:
deals with the question of whether or not the presentation of a Q claim on the basis of failure to discuss those presumptions constitutes clear and unmistakable error.

[00:02:05] Speaker 02:
That is not what happened here.

[00:02:08] Speaker 02:
What happened here was is that the veteran made a specific request for revision on the VA's failure in both the 54 and 55 decisions for failure to correctly apply the presumption, to apply it at all.

[00:02:23] Speaker 02:
The presumption was not applied in this case because the end result was that the board, when it examined the 54 and 55 decisions, did not discuss whether or not the board, the VA, in those decisions met its statutory burden to rebut the presumption

[00:02:50] Speaker 02:
by clear and unmistakable evidence of both pre-existence and aggravation.

[00:02:58] Speaker 02:
The reference that you make to the red brief is simply a reference to the fact that there was a declaration of that fact and a declaration that it constituted clear and unmistakable evidence.

[00:03:14] Speaker 02:
But that's not the legal standard to simply say that it happened.

[00:03:20] Speaker 02:
What is required under the presumption of soundness is to be able to identify in the record where there exists clear and unmistakable evidence.

[00:03:30] Speaker 03:
But Natalia tells us that the VA wasn't required to specifically advert to the presumption of soundness.

[00:03:40] Speaker 02:
No.

[00:03:40] Speaker 02:
And it wasn't necessary in this case because it was clear that they made a determination inferentially

[00:03:50] Speaker 02:
based upon the presumption of soundness.

[00:03:52] Speaker 02:
But they, in fact, did not correctly apply it because, as I was initially referencing, at appendix 114, there is a medical examination at entrance to service that triggered the presumption of soundness.

[00:04:09] Speaker 02:
Once the presumption of soundness is triggered, the evidentiary burden shifts from the veteran to the secretary.

[00:04:17] Speaker 02:
And the secretary must come forward

[00:04:20] Speaker 02:
with clear and unmistakable evidence to rebut both prongs of the presumption of soundness, not to merely declare that it has occurred, which is all that happened in the 54 decision that was confirmed and continued by the 55 decision.

[00:04:38] Speaker 02:
That is an error of law by the Board of Veterans Appeals.

[00:04:44] Speaker 02:
And what was reviewed by the Veterans Court in this case

[00:04:47] Speaker 02:
was not whether there was or wasn't a clear and unmistakable error in either of those two rating decisions, but was the review proper by the board.

[00:04:57] Speaker 02:
And the review was not proper by the board because the board did not identify where in the record there was clear and unmistakable evidence to rebut both prongs of the presumption of soundness.

[00:05:12] Speaker 01:
Governor, let me ask you if I could.

[00:05:16] Speaker 01:
Yes.

[00:05:16] Speaker 01:
And I realize you were not counseled representing the veteran before the Veterans Court.

[00:05:21] Speaker 01:
But at the bottom of Appendix 2, it says, the appellant's sole argument, and this is the Veterans Court speaking, is that the decision must contain Q as a matter of law as the decision did not discuss the presumption of soundness and aggravation or whether the evidence of record rebutted those presumptions.

[00:05:41] Speaker 01:
That seems to be a statement by the Veterans Court saying

[00:05:45] Speaker 01:
that the, uh, the pellet is arguing that there was a deficiency or simply because of what was not raised or discussed.

[00:05:54] Speaker 02:
And that parrots the language of Natale, but that is not a fair characterization of what was presented by Mr. Koopman.

[00:06:01] Speaker 01:
No, we don't have Mr. Koopman's, as I understand it, and correct me if I'm wrong, we don't have Mr. Koopman's briefing before the Veterans Court.

[00:06:10] Speaker 01:
No, you do not.

[00:06:10] Speaker 01:
So we just have to take that.

[00:06:12] Speaker 01:
Well, you're saying that's not an accurate statement of what he contended before the Veterans Court.

[00:06:18] Speaker 01:
I am saying that exactly.

[00:06:20] Speaker 03:
Are you saying he erred below or it doesn't accurately reflect it?

[00:06:26] Speaker 02:
I'm saying, well, I'm actually saying both.

[00:06:28] Speaker 02:
I'm saying first that he mischaracterized the way in which the argument was presented to the Veterans Court and that what was presented to the Veterans Court was

[00:06:39] Speaker 02:
as a matter of law, when you do not rebut the presumption of soundness, the presumption of soundness stands.

[00:06:47] Speaker 02:
And if the presumption of soundness stands, then Mr. Koopsman was entitled to the benefit of the presumption that his duodenal ulcer was incurred while on active duty.

[00:06:59] Speaker 02:
Once the presumption was triggered, the evidentiary burden shifted.

[00:07:03] Speaker 02:
The evidentiary burden shifting then requires an examination

[00:07:08] Speaker 02:
by the board to determine whether, in 54 and 55, the VA correctly applied or concluded that the presumption of soundness was rebutted.

[00:07:21] Speaker 03:
In the Great Bridge, at five, you say, while it is true, there was some evidence which suggested Mr. Koopman's preservice symptoms were consistent with an ulcer.

[00:07:35] Speaker 03:
There was no clear and unmistakable evidence

[00:07:37] Speaker 03:
Are you trying to get us to reweigh the evidence?

[00:07:41] Speaker 02:
Oh, no.

[00:07:41] Speaker 02:
No, no, Your Honor.

[00:07:43] Speaker 02:
What I'm asking this court to do is to examine the opinion, excuse me, the board decision below to determine whether there is any possible way that the Veterans Court could have affirmed that decision under a correct interpretation of 1111.

[00:08:04] Speaker 02:
And 11.11 requires that there be clear and unmistakable evidence to rebut both prompts.

[00:08:11] Speaker 02:
You cannot trigger the presumption, have the presumption afforded to the veteran, and then simply declare in your decision that there was a pre-existing condition and that the condition was not aggravated.

[00:08:32] Speaker 02:
That's all that appears in literally both decisions.

[00:08:37] Speaker 02:
That is not a correct application.

[00:08:40] Speaker 02:
The correct application, in this case by the board, not by the two rating decisions, must have examined the record to identify where in the record there existed clear and unmistakable evidence to rebut prong one.

[00:08:56] Speaker 02:
If prong one is not rebutted, then the presumption stands.

[00:09:00] Speaker 02:
If prong one is rebutted,

[00:09:01] Speaker 02:
Then you move to prong two, and the evidentiary burden is still the same, and there must be clear and unmistakable evidence to rebut the second prong.

[00:09:11] Speaker 02:
And that is the analysis that is missing from the... Hang on, Mr. Carpenter.

[00:09:16] Speaker 01:
Excuse me.

[00:09:18] Speaker 01:
Time is fleeting, so I need to ask you this question.

[00:09:21] Speaker 01:
Sure.

[00:09:22] Speaker 01:
At appendix 116, the board states

[00:09:27] Speaker 01:
The board finds that the RO could reasonably have found that the evidence of record clearly and unmistakably indicated, et cetera.

[00:09:34] Speaker 01:
Yes.

[00:09:35] Speaker 01:
Now, as I understand it, mainly from your reply brief, but also in your blue brief, your complaint here is that the whole problem here is the use of the word reasonably.

[00:09:46] Speaker 01:
Yes.

[00:09:47] Speaker 01:
That that implies that the board was using an incorrect standard.

[00:09:51] Speaker 02:
Correct.

[00:09:52] Speaker 01:
But, I mean, isn't that really just

[00:09:55] Speaker 01:
almost hanging too much on this one word when there was this evidence to which the board pointed.

[00:10:02] Speaker 01:
Isn't the board just basically saying, this was proper.

[00:10:05] Speaker 01:
This is something supports the RO's decision.

[00:10:08] Speaker 01:
Would you argue if the board dropped the word reasonably?

[00:10:11] Speaker 02:
Would your argument be gone?

[00:10:15] Speaker 02:
No, I don't believe so.

[00:10:16] Speaker 02:
But I want to make sure that you understand that what's being appealed here is not that determination by the board.

[00:10:24] Speaker 02:
But what is being appealed here is the Veterans Court determination that the government.

[00:10:30] Speaker 01:
But the Veterans Court endorsed in its decision, the Veterans Court endorsed what the board said.

[00:10:37] Speaker 01:
I don't have the exact, but at some point I know the Veterans Court alluded to this and in support of its decision.

[00:10:43] Speaker 01:
So that's why I was pointing to it.

[00:10:46] Speaker 02:
But the Veterans Court made its determination on the fact that

[00:10:53] Speaker 02:
The Auro decisions before 1989, under this court's decision in Naftali, were not required to discuss.

[00:11:02] Speaker 02:
And that was the error made below.

[00:11:07] Speaker 02:
This appeal is not about whether or not there was or wasn't clear and unmistakable evidence in the record.

[00:11:15] Speaker 01:
What I understand, though, Mr. Carpenter, your argument is that the whole problem, I mean, correct me if I'm wrong,

[00:11:22] Speaker 01:
The whole problem here is that an incorrect standard is reflected through use of this word reasonably.

[00:11:29] Speaker 02:
Because that is not the correct legal standard.

[00:11:32] Speaker 02:
The correct legal standard.

[00:11:34] Speaker 02:
Clear and unmistakable.

[00:11:36] Speaker 02:
And that is an evidentiary burden under this court's decision in Wagner that once the presumption is triggered, is shifted to the government.

[00:11:45] Speaker 01:
Are you saying that the use of the word reasonably

[00:11:49] Speaker 01:
in the context in which we see it in the board decision and the CAVC decision reflects a misunderstanding on the part of those two tribunals of the clear and unmistakable standard.

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

[00:12:04] Speaker 02:
And the clear and unmistakable standard is triggered once the examination failed to note a pre-existing condition

[00:12:16] Speaker 02:
at entrance to service.

[00:12:17] Speaker 02:
I see I'm into my rebuttal time and I would like to retain the balance unless there's further questions before I sit down.

[00:12:24] Speaker 02:
All right, thank you very much, Your Honor.

[00:12:32] Speaker 00:
May it please the court.

[00:12:34] Speaker 00:
I think we have to focus on the fact this is a Q claim, not a live appeal.

[00:12:39] Speaker 00:
And it sounds like Mr. Koopmans is

[00:12:43] Speaker 00:
trying to make an argument that would be appropriate possibly if you were reviewing a board decision and a Veterans Court decision in a live appeal.

[00:12:51] Speaker 00:
But we are operating here under the Q framework.

[00:12:55] Speaker 00:
So what the board does when it describes that it was reasonable that the RO found clear and unmistakable error to rebut the presumption of soundness, that's exactly what the board's supposed to do when undergoing a Q analysis.

[00:13:14] Speaker 00:
What I'll do here is to address some of the questions that the court raised.

[00:13:19] Speaker 00:
Judge Schall, you implied with some of your questions there could be an Andre concern here with respect to whether or not the Q claim that's being presented to this court was the same one that was at least presented to the Veterans Court and maybe below.

[00:13:31] Speaker 00:
We looked into that.

[00:13:33] Speaker 00:
Although it does seem like the Veterans Court labeled the challenge as being a Natale challenge of just not referencing the presumption of soundness, which the Veterans Court disposed of.

[00:13:42] Speaker 00:
by pointing out that the appendix 41 decision in 1954 clearly is addressing the presumption of soundness.

[00:13:48] Speaker 00:
There's no other reason that the statements of the second and third statements at the discussion portion of that decision are even present without there being a presumption of soundness being taken into account.

[00:14:02] Speaker 00:
And the third sentence clearly addresses the presumption of aggravation, noting the medical evidence that showed that

[00:14:09] Speaker 00:
ulcer had completely resolved after the dietary treatment.

[00:14:13] Speaker 00:
So there's no question that the 1954 and 1955 RO decisions addressed the presumption of soundness and the presumption of aggravation.

[00:14:21] Speaker 00:
The evidence in the record is overwhelming that the presumption of soundness is overcome by clear and unmistakable evidence.

[00:14:31] Speaker 00:
All you have at the time of the 1954 and 1955 decisions are

[00:14:35] Speaker 00:
the medical opinion from the army doctor who recommended the honorable medical discharge.

[00:14:42] Speaker 00:
And then you have at appendix 40, the finding of an RO doctor who is looking at the films that were taken during Mr. Koopman's hospitalization and identifying for purposes of the aggravation prong that the ulcer had completely resolved.

[00:14:59] Speaker 00:
And then you have to understand that at this time, prior to 1990, it wasn't unusual for

[00:15:05] Speaker 00:
medical doctors to actually take part in rating decisions, even at the RO level.

[00:15:10] Speaker 00:
And that happened in this case.

[00:15:11] Speaker 00:
If the court looks at appendixes 41 and 50, I believe, which is the 55 medical RO decision, both rating boards comprised medical doctors who are, at that time, expected to use their medical expertise in reviewing the record and in both decisions

[00:15:30] Speaker 00:
They found that, well, the second decision focuses more on whether there was any new evidence submitted.

[00:15:36] Speaker 00:
But the first clearly finds that based on sound medical principles, this condition pre-existed service.

[00:15:42] Speaker 00:
So you cannot say there's any medical... Reply five, as Judge Wallach noted, the concession that some evidence exists.

[00:15:49] Speaker 00:
Well, all the evidence exists in favor of a clear and unmistakable overcoming the presumption, including that there was no

[00:15:57] Speaker 00:
permanent aggravation of the injury as a result of medical service.

[00:16:02] Speaker 00:
So there's no evidence here, frankly, that is on the other ledger.

[00:16:06] Speaker 00:
The only evidence identified to the RO at the time really was the medical... You misspoke, I believe, Mr. Hawkey.

[00:16:13] Speaker 00:
You meant military service.

[00:16:14] Speaker 00:
Military service, I'm sorry.

[00:16:17] Speaker 00:
Medical, while he was being turned, during his military service.

[00:16:22] Speaker 00:
The only evidence on the other side of the ledger are the two notes from his treating physician,

[00:16:27] Speaker 00:
Neither of which address the medical question.

[00:16:29] Speaker 00:
They simply say, I was not aware of any of the symptomatology before service.

[00:16:35] Speaker 00:
That doesn't answer the question.

[00:16:37] Speaker 00:
So it's not even really negative evidence in the balancing process.

[00:16:41] Speaker 00:
And as far as the lay statements that were submitted, I think that the board properly identified that lay statements made while one is seeking medical treatment generally are more probative than when one is seeking monetary benefits.

[00:16:55] Speaker 00:
And there's nothing here for this court

[00:16:57] Speaker 00:
to address as far as what was conducted in the 1954 and 1955 rating decisions.

[00:17:06] Speaker 01:
So you're saying we don't have a situation where a different argument was presented to the Veterans Court than what is being presented now?

[00:17:16] Speaker 00:
My answer to that, Your Honor, is I believe that the Veterans Court characterized the argument as sort of a straight out Natale argument, had appendix two.

[00:17:27] Speaker 00:
I know that in the record, there is the actual motion for Q that was filed, started this whole process.

[00:17:33] Speaker 00:
And for purposes of my main focus when I'm looking at, when we're looking at this question is, is that basically what's being argued now?

[00:17:40] Speaker 00:
That is.

[00:17:42] Speaker 00:
The argument was a little bit more about the application of the standard than it was whether or not the standard was used.

[00:17:49] Speaker 00:
So I have no reason to question Mr. Carpenter's recollection that the argument was a little bit more nuanced for the Veterans Court.

[00:17:58] Speaker 01:
So the other question I have is, do you understand the main argument that's being made here on appeal?

[00:18:05] Speaker 01:
The error was in using this word reasonably, and that this apparently was what threw the train off the track, so to speak.

[00:18:15] Speaker 00:
My opening line here on my notes is, this appeal is all about a sentence in the reviewing board decision that Mr. Koopman suggests is error, focusing on the word reasonable.

[00:18:23] Speaker 00:
And our response is that that's entirely appropriate when a board

[00:18:27] Speaker 00:
who is in the Q review mode is looking back in the past.

[00:18:32] Speaker 00:
And so what that board is supposed to do is to determine whether there's any outcome determinative error upon which reasonable minds could not differ.

[00:18:40] Speaker 00:
Now whether or not the board at the time sort of got caught up with the reasonable minds could not differ and so thought it would be an appropriate way to characterize what the evidence was before the 1954 board, I don't know.

[00:18:51] Speaker 00:
But I do know that they are not required to redo

[00:18:55] Speaker 00:
like a live appeal, the analysis and conduct some sort of de novo review and spell it all out.

[00:19:01] Speaker 00:
Otherwise, it's not Q. Because although Mr. Koopmans is correct that in the normal presumption of soundness analysis, once it's established that the person was of sound condition upon entrance, the burden shifts in a live appeal.

[00:19:17] Speaker 00:
In the Q analysis, the first question is, is there outcome determinant of error?

[00:19:21] Speaker 00:
Is it clear and unmistakable error upon which reasonable minds could not differ?

[00:19:26] Speaker 00:
That puts the burden on the claimant.

[00:19:28] Speaker 00:
And in addressing that, if there was no evidence at all, clearly, in this case, supporting the findings of the 1954 board, one might presume that maybe the board goofed up here.

[00:19:41] Speaker 00:
We know there's evidence.

[00:19:42] Speaker 00:
There's only evidence in support of the 1954 decision.

[00:19:46] Speaker 00:
Mr. Koopmans recognizes that.

[00:19:48] Speaker 03:
The question I asked Mr. Carpenter is pretty much what you're saying.

[00:19:54] Speaker 03:
which is whether we strike the word reasonably or leave it in really doesn't make a difference.

[00:20:00] Speaker 00:
No.

[00:20:00] Speaker 00:
I mean, the fact that when you understand that there's clearly evidence, in this case there's only evidence on one side of the ledger, but even hypothetically, if there was evidence on both sides of the ledger in a Q analysis, the VA has by regulation identified that weighing of the evidence cannot be Q for all kinds of reasons.

[00:20:20] Speaker 00:
The legislative history behind the Q does

[00:20:23] Speaker 00:
Point to the 1A situation, an example, which was, if you probably are aware, the absence.

[00:20:28] Speaker 00:
Well, the argument was that the spouse was seeking benefits and couldn't establish that she was actually married when, in fact, the record contained a marriage certificate.

[00:20:39] Speaker 00:
Well, that's a factual error.

[00:20:40] Speaker 00:
And clearly, that's a clear error that would have affected the outcome.

[00:20:45] Speaker 00:
We don't have that here.

[00:20:49] Speaker 03:
Thank you, Mr. Allen.

[00:20:53] Speaker 02:
Mr. Governor, you've got a little bit more than three minutes.

[00:20:58] Speaker 02:
May I please, Court?

[00:20:58] Speaker 02:
The government, both in its briefing and in its argument, attempts to focus this Court on the question of clear and unmistakable error.

[00:21:05] Speaker 02:
That is not the issue in this appeal.

[00:21:08] Speaker 02:
The issue in this appeal is the fact that the Veterans Court relied improperly on this Court's decision in Neftali.

[00:21:16] Speaker 02:
The result of that reliance is that Mr. Koopsman was denied judicial review of his appeal of the board's decision.

[00:21:27] Speaker 02:
The reliance upon Natale shortcuts the Q analysis by saying that you get a get out of jail free card government because prior to 1989, there was no requirement to discuss with specificity the presumption of soundness.

[00:21:46] Speaker 02:
That then precluded any analysis by the Veterans Court of whether or not the Board did or did not correctly review the 54 and 55 decisions.

[00:21:58] Speaker 02:
This is not a neftali situation.

[00:22:02] Speaker 02:
How can you say it's not a Q analysis?

[00:22:09] Speaker 02:
Because the Q analysis

[00:22:12] Speaker 02:
is about whether or not there was or was not clear and unmistakable error in the 54 and 55 decisions.

[00:22:20] Speaker 02:
That is a question to be resolved first by the agency and upon de novo review by the board.

[00:22:28] Speaker 02:
That is their responsibility.

[00:22:30] Speaker 02:
The Veterans Court short-cutted Mr. Koopsman's judicial review of that decision by saying that this was a neftali situation.

[00:22:40] Speaker 02:
This is not a Naphtali situation because, as Mr. Hockey correctly points out at Appendix 41... Everything the Veterans Court said, though, amounts to a cue determination.

[00:22:55] Speaker 02:
But that's not the issue before the Veterans Court.

[00:22:59] Speaker 02:
The Veterans Court said in its archer holding that it does not make a plenary review of cue.

[00:23:07] Speaker 02:
So if they're not reviewing

[00:23:09] Speaker 02:
the 54 and 55 decision, they're only reviewing what the board did.

[00:23:14] Speaker 02:
And the question is, did or did not the Veterans Court short-circuit Mr. Kusman's opportunity to challenge what the board did in this case?

[00:23:24] Speaker 02:
And by relying upon Neftali, that's precisely what happened here.

[00:23:29] Speaker 01:
Before you step down, I just want to make completely sure I understand your argument, Mr. Farmer.

[00:23:34] Speaker 01:
You're saying that the board

[00:23:36] Speaker 01:
the Veterans Court improperly arrived, relied on the tally.

[00:23:41] Speaker 01:
And that in turn, that reliance improper, prevented it from really looking at the key question, whether there was clear and unmistakable evidence here.

[00:23:51] Speaker 01:
Correct.

[00:23:51] Speaker 01:
Right?

[00:23:52] Speaker 02:
And this is... Not clear and unmistakable error, but clear and unmistakable evidence.

[00:23:57] Speaker 02:
Yeah.

[00:23:57] Speaker 02:
Okay.

[00:23:58] Speaker 01:
Clear and unmistakable evidence.

[00:24:00] Speaker 01:
And this reasonable point sort of

[00:24:03] Speaker 01:
is support for the fact that they didn't look at it in that proper lens.

[00:24:07] Speaker 02:
That's correct.

[00:24:09] Speaker 02:
If you will, that is merely tangential or demonstrative of the lack of judicial review.

[00:24:17] Speaker 02:
Thank you very much, Your Honor.

[00:24:18] Speaker 02:
Thank you, Mr. Kerr.

[00:24:20] Speaker 02:
The matter will stand submit.