[00:00:00] Speaker 03:
We have five argued cases this morning, and we'll take a short recess after the first case, and that is No.

[00:00:07] Speaker 03:
171325, Mullins v. Wilkie.

[00:00:09] Speaker 03:
Mr. Carpenter.

[00:00:10] Speaker 03:
Thank you, Your Honor.

[00:00:14] Speaker 01:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Mullins.

[00:00:17] Speaker 01:
Nice to see you looking so well, Mr. Carpenter.

[00:00:19] Speaker 01:
Thank you very much, Your Honor.

[00:00:21] Speaker 01:
In Nexus' opinion,

[00:00:24] Speaker 01:
or an opinion questioning whether there is or is not a relationship between a post-service disability and an injury event or disease which occurred in service is just that.

[00:00:34] Speaker 01:
It's an opinion.

[00:00:36] Speaker 01:
It is a binary choice between a relationship or a non-relationship.

[00:00:41] Speaker 01:
This appeal seeks a rule of law for determining the proper method for consideration of conflicting expert medical opinions on the issue of nexus.

[00:00:50] Speaker 03:
If we had a situation here in

[00:00:53] Speaker 03:
which the Board or the Veterans Court had said, we're going to give the same weight to every opinion regardless of the credentials and qualifications of the person.

[00:01:03] Speaker 03:
It would seem to me that you might have an argument that there was something wrong with that.

[00:01:08] Speaker 03:
But I don't see that either the Board or the Veterans Court said anything like that.

[00:01:16] Speaker 01:
Well, no.

[00:01:18] Speaker 01:
What the Veterans Court did, however, was to expressly reject

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that argument and reject consideration of whether or not there should be such an argument.

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And I believe under this Court's jurisprudence that when an issue of law is presented and the Veterans Court elects not to address it, that that does not preclude this Court from addressing it.

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Now clearly this Court can, in its discretion, choose not to address it.

[00:01:43] Speaker 01:
I don't dispute that.

[00:01:44] Speaker 01:
And yes, there could have been a better set of circumstances

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in which to raise the issue.

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But for Mr. Mullins, he was in a situation in which he had a extremely experienced and credentialed physician offer.

[00:02:00] Speaker 01:
That is Dr. Isaacs?

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

[00:02:03] Speaker 02:
But Dr. Isaacs, within three months, offers two opinions.

[00:02:12] Speaker 02:
In February 2003, he says in the records,

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He wonders if his service, his injury is service-related.

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His records from the service are sparse.

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It is difficult to tell with any certainty whether his symptoms now have any relationship to the injury he sustained in January of 1957.

[00:02:32] Speaker 02:
And then in May of the same year, he says more likely than not his symptoms were derived from a service-related injury.

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And certainly,

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the board and the VA pointed out in their respective decisions that that was problematic.

[00:02:52] Speaker 02:
And why should we believe, you know, you're saying he's a highly respected doctor, but even leaving aside the contradicting testimony, his own testimony is suspect.

[00:03:06] Speaker 01:
With respect, Your Honor, I don't believe that that's the case here.

[00:03:09] Speaker 01:
What we have is a doctor who's simply being candid about the record and the difficulty that is presented

[00:03:15] Speaker 01:
Anytime any expert is asked to draw a conclusion about the relationship between an event that happened while on active duty and a post-service disability.

[00:03:26] Speaker 02:
Why couldn't the VA and the board look at that and say, well, geez, this is conflicting.

[00:03:33] Speaker 02:
And you're arguing this interpretation of it, but we take this other interpretation as a question of fact.

[00:03:39] Speaker 01:
And therefore, we don't believe him.

[00:03:42] Speaker 01:
And I would suggest, Your Honor, where the credentials are comparable, that is the general rule.

[00:03:48] Speaker 01:
And that is the rule that should be followed.

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But in the context of both a nexus opinion and where there is a clear disparity between the credentials of one expert versus the credentials of another, we're talking here about a expert who has got a recognition.

[00:04:06] Speaker 02:
But if he's not a believable expert, what's the point?

[00:04:10] Speaker 02:
I mean, how do you get your question to law if, as a matter of fact, they look at him and say, we just don't believe this fellow?

[00:04:19] Speaker 01:
Well, Your Honor, I don't believe it was that cut and dry.

[00:04:21] Speaker 01:
He gave a opinion saying that it would be difficult to arrive at a decision.

[00:04:27] Speaker 01:
Then the criteria was explained to him under the standards on the VA.

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that he doesn't have to give an opinion to a degree of medical certainty.

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He merely has to give an opinion as to whether it is at least as likely as not.

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And he went further than that and said that it was more likely than not.

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And I agree.

[00:04:48] Speaker 05:
What's the statutory hook for your rule of law?

[00:04:50] Speaker 01:
I'm sorry?

[00:04:51] Speaker 05:
Is there a statutory hook for your rule of law?

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I believe there is, Your Honor.

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And I think that is the benefit of the doubt.

[00:05:01] Speaker 01:
rule under 5121 and 3.102 of the Code of Federal Regulations, because they both, as the Supreme Court has recognized and this Court has recognized, engulfed that in certain, excuse me, in close or uncertain cases, the VA should be guided by the principle underlying this uniquely pro-claimant system.

[00:05:27] Speaker 01:
And that pro-claiming.

[00:05:28] Speaker 04:
I guess I'm trying to understand how that benefits the doubt rule.

[00:05:33] Speaker 04:
That's a situation where you might have circumstances where there are strong arguments on both sides.

[00:05:42] Speaker 04:
There are strong credentials on both sides.

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But what you're saying is that means as a matter of law, you have to say, you have to do an objective analysis of the credentials and say, whatever that person says goes.

[00:05:59] Speaker 01:
in the unique circumstance of offering a nexus opinion, because a nexus opinion is simply a binary choice between an opinion that something is related to service versus an opinion that something is not related to service.

[00:06:14] Speaker 01:
All the VA's expert did was to draw the conclusion that she did not believe that there was a relationship.

[00:06:22] Speaker 04:
I understand that in this case it's kind of easy to say one has more credentials than the other, because on paper it's

[00:06:28] Speaker 04:
It's pretty obvious that one has at least a different set of educational attainment than another.

[00:06:35] Speaker 04:
But what if you have a closer call?

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Who makes the decision which is better credentialed?

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You're asking for a presumption, right?

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You're asking for a presumption that the better credentialed person should have more weight.

[00:06:54] Speaker 01:
I think that is the way that it should be characterized and that the burden would then shift to rebut that presumption.

[00:07:02] Speaker 01:
But there's a presumption of competence and qualification.

[00:07:07] Speaker 01:
Yes, and there's no doubt that this witness under this court's rule is

[00:07:13] Speaker 01:
competent to offer that opinion.

[00:07:15] Speaker 01:
Did you object below to the competence of the medical examiner?

[00:07:19] Speaker 01:
No, we did not.

[00:07:20] Speaker 01:
Because under this court's rule, there isn't a basis, in my view, to make that objection because of the difference in... But Rizzo says that you have to make the objection below.

[00:07:33] Speaker 01:
If I wish to challenge the competency

[00:07:36] Speaker 01:
What I wish to challenge is not that the witness is not competent to make that opinion, but simply when you've got competing or conflicting opinions on the very narrow issue of medical nexus.

[00:07:48] Speaker 01:
What about grades in medical school?

[00:07:53] Speaker 01:
Well, that goes to Judge O'Malley's question.

[00:07:55] Speaker 01:
And I think the response to that is that if it is a close call, then that call has to be resolved by the trier of facts.

[00:08:04] Speaker 03:
I don't see where you get a presumption here.

[00:08:10] Speaker 03:
Surely it's true that the qualifications of the expert or the person making the medical assessment have to be taken into account.

[00:08:19] Speaker 03:
If the Veterans Court or the board said

[00:08:23] Speaker 03:
We're not going to consider qualifications at all.

[00:08:25] Speaker 03:
You'd have a pretty good argument that that was an error of law.

[00:08:29] Speaker 03:
But where the presumption comes from that you would presume that somebody with better qualifications should be given more weight, it seems to me is difficult.

[00:08:41] Speaker 03:
I don't see where that comes from.

[00:08:43] Speaker 03:
It's not a standard approach in the district courts and medical malpractice litigation.

[00:08:51] Speaker 03:
There's no template.

[00:08:53] Speaker 01:
Well, no, because we are in a uniquely non-adversarial system.

[00:08:58] Speaker 01:
And in that uniquely non-adversarial system, the benefit of the doubt is supposed to be resolved in favor of the veteran.

[00:09:05] Speaker 01:
Now, in the context of a nexus opinion where you have this wide disparity in credentials, there ought to be a rule that at least directs

[00:09:14] Speaker 01:
a presumption to be afforded that the greater credentialed expert opinion should be given greater weight unless that can be rebutted.

[00:09:23] Speaker 04:
Now, the fact that... What if the greater credentialed opinion came from the VA rather than from the veteran?

[00:09:31] Speaker 04:
And so how does a presumption against the veteran in those circumstances comport with your benefit of the doubt rule?

[00:09:41] Speaker 01:
Well, it does not comport, but if there is such a rule, the rule has to cut both ways.

[00:09:47] Speaker 01:
There can't be a rule that only favors one side or the other, although I think the resumption of competence comes very close to that.

[00:09:56] Speaker 01:
But regardless, it seems to me that the rule has to be fair and balanced in order to be an appropriate rule of law.

[00:10:05] Speaker 04:
But that's part of my problem is if you're hooked for this rule of law,

[00:10:11] Speaker 04:
is the benefit of the doubt rule, then it would seem that it can't be a presumption that goes both ways.

[00:10:21] Speaker 01:
Well, that's entirely possible.

[00:10:23] Speaker 01:
I may have to concede that point.

[00:10:25] Speaker 01:
But let me offer one more thing before I sit down.

[00:10:29] Speaker 01:
Mr. Mullins is in a position now in which, as a result of this decision, in which he lost on the basis of this adverse nexus opinion,

[00:10:40] Speaker 01:
that is for all practical purposes not possible for him to reassert his claim.

[00:10:45] Speaker 01:
There is no way to produce new and material evidence on this.

[00:10:49] Speaker 01:
This is a fact that has been established and the fact that you bring in another expert as new and material evidence is not going to give.

[00:10:58] Speaker 04:
Mr. Mullen's doctor an opportunity to fill some gaps in his opinion.

[00:11:03] Speaker 04:
Didn't they make it clear to him that there were some gaps in terms of the information or analysis done and give him an opportunity to fill those and he didn't do it?

[00:11:15] Speaker 01:
Well, I don't recall that specifically that Mary Welby may be the case, but it's our position that he did that when he came forward with the second opinion.

[00:11:26] Speaker 01:
was that it was more likely than not, as opposed to his earlier observation about the difficulty of the task.

[00:11:32] Speaker 01:
I'll reserve the balance of my time.

[00:11:34] Speaker 03:
OK.

[00:11:34] Speaker 03:
Thanks, Mr. Carver.

[00:11:37] Speaker 03:
Ms.

[00:11:37] Speaker 03:
Besick?

[00:11:40] Speaker 00:
Good morning.

[00:11:40] Speaker 00:
May it please the court?

[00:11:42] Speaker 00:
Mr. Mullen's proposed rule is inconsistent with VA regulations, and in particular, both the benefit of the doubt rule and the various both statutory requirements and regulatory requirements

[00:11:55] Speaker 00:
that the VA consider all of the evidence and all of the medical opinions and lay opinions in front of it.

[00:12:02] Speaker 03:
This rule seems... Well, I think that's a hard sell.

[00:12:05] Speaker 03:
I mean, it may be that there's no authority for the rule he proposes, but it doesn't seem to me that it's directly contrary to the VA regulations.

[00:12:14] Speaker 03:
He's not saying that the evidence can't be considered.

[00:12:16] Speaker 03:
He's just arguing that there should be a presumption that the better credential person's opinion is giving more weight.

[00:12:25] Speaker 00:
Your Honor, that could be the case.

[00:12:27] Speaker 00:
It's been a bit difficult to interpret exactly what the function of this rule would be, to the extent that Mr. Mullins is seeking a presumption that the better qualified medical expert should carry the day.

[00:12:50] Speaker 00:
That would, it would seem, run counter to the requirement that

[00:12:55] Speaker 03:
Well, he's not saying it should carry the day.

[00:12:59] Speaker 03:
You're not saying that at all.

[00:13:00] Speaker 03:
You're saying that it should be presumed to have more weight.

[00:13:05] Speaker 00:
But, Your Honor, that would then require an affirmative rebuttal, which would run counter to the presumption that the VA's selected medical practitioner giving the opinion

[00:13:20] Speaker 00:
has provided an adequate and competent opinion.

[00:13:23] Speaker 03:
No, there's no presumption of adequacy.

[00:13:27] Speaker 03:
There's a presumption of competence.

[00:13:29] Speaker 04:
That's true, Your Honor.

[00:13:30] Speaker 04:
And that's part of his point, is that the VA gets this presumption of competency regardless of who they put up there.

[00:13:38] Speaker 04:
And yet, there's no presumption that favors the veteran who puts up on a regular basis a far more qualified doctor.

[00:13:47] Speaker 00:
And Your Honor, in this case, there is no suggestion that

[00:13:50] Speaker 00:
Dr. Isaac's opinions were not competent, but the VA weighed the probative weight of those opinions and weighed the probative weight of the opinion of the VA examiner.

[00:14:06] Speaker 00:
And both the board and the VA court found that in this case, the examiner's opinion carried greater probative weight because she considered all of the evidence of record

[00:14:17] Speaker 00:
because she addressed the finding at the veterans exit exam that there was no back problem, the fact that there was a 30-year gap.

[00:14:28] Speaker 00:
She addressed all of these issues.

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And the board found her opinion more probative in this case.

[00:14:35] Speaker 04:
For instance, in the social security context, there is a presumption that if you have a treating physician that gives an opinion and you have a government assessment,

[00:14:46] Speaker 04:
that the treating physician's opinion controls unless there is absolutely no support for that opinion.

[00:14:54] Speaker 04:
And it's workable.

[00:14:55] Speaker 04:
They do it all the time.

[00:14:57] Speaker 04:
Why wouldn't a presumption like that only in this context be workable?

[00:15:02] Speaker 00:
Well, Your Honor, for the same reasons that this court has rejected that specific rule in the veterans' context, the court addressed that proposed rule in white and found

[00:15:14] Speaker 00:
particularly in light of the very detailed and structured VA regulations that are established for veterans' claims, that it is the VA's place to establish how evidence is to be weighed, establish the types of evidence that is required, and how the board is to weigh that.

[00:15:37] Speaker 02:
And the overlying

[00:15:42] Speaker 02:
strata is different between someone making a claim for current disability and someone making a claim for current disability based on long past events?

[00:15:54] Speaker 00:
Certainly, your honor.

[00:16:00] Speaker 00:
We would simply point out that the record here does not support the rule that Mr. Mullins is seeking.

[00:16:10] Speaker 00:
The rule itself, as has been pointed out in the preceding colloquy, doesn't necessarily adhere to the benefit of the doubt rule.

[00:16:20] Speaker 00:
There are certainly situations where if this rule were imposed, it would create a presumption against the veteran.

[00:16:26] Speaker 00:
It does seem to run counter to the idea that the board is required to weigh the evidence and make the evidentiary determinations based on all of the evidence of record.

[00:16:37] Speaker 00:
And in this case, that is exactly what the board did and found that the veterans

[00:16:40] Speaker 00:
um, medical expert did not have a more probative.

[00:16:46] Speaker 02:
What would be the impact if there was such a role that required, for example, the VA to rebut with an equally or more qualified person?

[00:17:01] Speaker 00:
Well, your honor, um, certainly there would be a likely significant delay added to

[00:17:08] Speaker 00:
the process as I believe Mr. Mullins described in his reply brief.

[00:17:14] Speaker 00:
He proposed that perhaps where there is a question of which expert, which medical opinion is most credentialed, another medical expert should be brought in and there should be a determination made specifically about the credentials of the experts.

[00:17:33] Speaker 00:
This process is already a slow one and this would certainly add additional time to it.

[00:17:37] Speaker 00:
And certainly in the instances where the VA's expert or the expert providing an opinion contrary to the veteran is more credentialed, it would be harmful to the veteran, where he or she would have to overcome the perception.

[00:17:55] Speaker 04:
But in fairness, that's not usually the case, is it?

[00:17:59] Speaker 04:
I mean, the VA often uses nurse practitioners and non-positions.

[00:18:05] Speaker 04:
to do these assessments, whereas most of the veterans come in with opinions from actual doctors.

[00:18:12] Speaker 04:
Not that nurse practitioners aren't very competent, but I'm saying if you're talking about just objectively on paper, that usually it's going to be the veteran that has the more qualified just on paper.

[00:18:26] Speaker 00:
That's entirely likely, Your Honor.

[00:18:28] Speaker 00:
It certainly isn't necessarily all of these the case.

[00:18:32] Speaker 00:
And it also raises the question of whether you would be imposing some kind of monetary bar, where in order for the veteran to get this benefit, they would need to make sure that they are able to hire the expert that has the better credentials in any given case.

[00:18:48] Speaker 02:
Well, then it would also impose a cost on the government to provide those additional experts.

[00:18:57] Speaker 00:
That's absolutely true, Your Honor.

[00:18:58] Speaker 00:
If we end up getting into a battle of the experts, the costs would go up for everyone.

[00:19:03] Speaker 00:
Um, for all of those reasons, um, the benefit of the doubt rule is already sufficiently keeping the veteran's interests in any given nexus to termination, um, protected and, uh, does not contain, does not offer the same problems that, that this proposed rule would.

[00:19:23] Speaker 00:
So we would request that, that the veteran's court's decision be affirmed.

[00:19:29] Speaker 03:
Okay.

[00:19:29] Speaker 03:
Thank you.

[00:19:31] Speaker 03:
Mr. Carpenter.

[00:19:32] Speaker 01:
Your Honor, as I realize you have a full calendar, unless there's specific questions, I don't believe I have anything else to add.

[00:19:38] Speaker 03:
Okay.

[00:19:38] Speaker 03:
Thank you, Mr. Carpenter.

[00:19:39] Speaker 03:
Thank both counsel.

[00:19:40] Speaker 03:
The case is submitted and we'll recess now for two minutes.