[00:00:23] Speaker 02:
The next target case is number 17, 2196, Ndolny against Wilkie.

[00:00:29] Speaker 02:
Mr. Sebekos.

[00:00:33] Speaker 01:
Good morning, Your Honor.

[00:00:34] Speaker 01:
May it please the Court.

[00:00:36] Speaker 01:
My name is Peter Sebekos.

[00:00:38] Speaker 01:
I'm here representing Appellant Military Veteran Gordon Ndolny.

[00:00:44] Speaker 01:
And this appeal raises two central issues.

[00:00:48] Speaker 01:
The first has to do with whether there are any implications

[00:00:54] Speaker 01:
a military department, one of the branches of the military, ignoring its own regulation, which specifies that a specific physical defect disqualifies an enlistee from serving in the military.

[00:01:14] Speaker 01:
In this case, the service department, the United States Army, ignored the fact that its own regulation

[00:01:23] Speaker 01:
specified that Mr. Nodoldi was disqualified from service due to a macular hole in his right retina, which was discovered two days after he entered the military.

[00:01:40] Speaker 01:
The service department did nothing to fully inform him of the nature of the defect.

[00:01:50] Speaker 03:
Wasn't this decided in 1977?

[00:01:52] Speaker 01:
Yes, it was.

[00:01:55] Speaker 03:
And so if you're coming here now, don't you have to show clear and unmistakable error?

[00:02:01] Speaker 01:
Yes, Your Honor.

[00:02:02] Speaker 03:
That the result would have been different?

[00:02:04] Speaker 01:
Yes.

[00:02:05] Speaker 03:
And isn't that a fact question that is beyond us?

[00:02:11] Speaker 01:
The issue of whether or not this regulation was on the books in 1972 when he enlisted

[00:02:27] Speaker 01:
That is a separate issue that I am not arguing.

[00:02:31] Speaker 01:
I'm not arguing a factual issue.

[00:02:33] Speaker 01:
I'm arguing that there was a regulation in effect.

[00:02:38] Speaker 01:
And that regulation, if you look at the parameters of a Q argument, it says that revision of a prior final decision will be warranted if the law that was in effect at that time and the facts that were in the

[00:02:57] Speaker 01:
were present at that time were not followed.

[00:03:01] Speaker 01:
In this case, the Board of Veterans' Appeals in 1977, at that time, there was a US Army regulation.

[00:03:10] Speaker 01:
And they totally ignored the fact that this particular serviceman was allowed to serve when his service was putting his right eye vision at great risk.

[00:03:25] Speaker 01:
And this was acknowledged by the United States Army in their own regulation.

[00:03:31] Speaker 01:
They chose to ignore that regulation and allow this individual to continue to serve for three years.

[00:03:37] Speaker 01:
When he came out of the military, he was given a separation exam.

[00:03:43] Speaker 01:
On that separation exam, the examiner wrote that there were no problems with his right eye, even though

[00:03:54] Speaker 01:
When he had enlisted, they found that his visual acuity in the right eye was 2,400.

[00:04:01] Speaker 01:
And two days later, they found that he had a macular hole.

[00:04:06] Speaker 01:
So I'm making the legal argument, Your Honor, that there has to be some implication when the service department ignores its own regulation, and that is

[00:04:21] Speaker 01:
a law that was in effect in 1977 and that was not applied or even recognized.

[00:04:30] Speaker 03:
But wasn't that subject to appeal at that time?

[00:04:33] Speaker 01:
No, sir, it was not.

[00:04:34] Speaker 01:
There was no Veterans Court at that time.

[00:04:38] Speaker 01:
The veteran was severely disadvantaged because one thing that... Well, if there was no right to appeal, then that's it.

[00:04:48] Speaker 01:
Well, no, it's not it.

[00:04:51] Speaker 01:
In 1997, the United States Congress said that veterans who felt that they were deprived of a benefit due to a board decision that contained clear and unmistakable error could seek revision of that decision.

[00:05:11] Speaker 01:
And that goes to the second argument I'm making.

[00:05:16] Speaker 01:
Congress said in 1997 that

[00:05:20] Speaker 01:
this remedy would be available.

[00:05:22] Speaker 01:
It had previously been available when the veteran was challenging a regional office decision.

[00:05:29] Speaker 01:
Now, for the first time, Congress said the congressman who introduced this legislation on the floor of the House, Congressman Lane Evans from Indiana, specifically said, when a veteran has provided first-class service to his country,

[00:05:47] Speaker 01:
he's entitled or she is entitled to first-class justice.

[00:05:53] Speaker 01:
The VA had this legislation, and its job was then to enact the regulations to put it into effect.

[00:06:01] Speaker 02:
I want to be sure I understand the argument on the merits.

[00:06:05] Speaker 02:
You're not arguing that this is not a pre-existing condition.

[00:06:09] Speaker 01:
No, I'm not.

[00:06:10] Speaker 02:
You're saying that because they allowed him to serve with a pre-existing condition,

[00:06:17] Speaker 02:
the government became responsible for the consequences of that condition?

[00:06:26] Speaker 01:
Yes.

[00:06:26] Speaker 01:
But thank you for giving me an opportunity to clarify something that might have been not totally clear in my brief.

[00:06:35] Speaker 01:
I'm arguing that the statutory provision in 1977, when the Board of Veterans Appeals denied his appeal,

[00:06:45] Speaker 01:
that the relevant statute was what was then codified at 353, United States Code.

[00:06:53] Speaker 01:
That was what's called the presumption of aggravation.

[00:06:58] Speaker 01:
He went into the military, and on his enlistment exam, the examiner did note a problem with his right eye.

[00:07:08] Speaker 01:
The examiner, who had no tools to really make

[00:07:13] Speaker 01:
refined, informed diagnosis, saw that he had this problem with his distance vision in the right eye.

[00:07:22] Speaker 01:
And just from his knowledge of ophthalmology, general knowledge, he wasn't a specialist necessarily.

[00:07:34] Speaker 01:
He said that this, I'm going to diagnose this as amblyopia, which is

[00:07:42] Speaker 01:
Defect in your visual acuity with no apparent lesion on the macula lutei of your retina.

[00:07:55] Speaker 01:
I don't fault that examiner, and I'm not here to argue facts.

[00:08:00] Speaker 01:
What then occurred, apparently, was the soldier was enlisted.

[00:08:08] Speaker 01:
He took a train from Michigan to Fort Knox, Kentucky.

[00:08:13] Speaker 01:
And when he got off of the train, he boarded a bus to go from the train station to the base.

[00:08:18] Speaker 01:
He arrived at the base.

[00:08:21] Speaker 01:
He stepped down the steps of that bus.

[00:08:23] Speaker 01:
And when he hit the ground, there was a sergeant with a clipboard.

[00:08:28] Speaker 01:
And the sergeant or someone else who did the intake at Fort Knox said to him, before you do anything, before you get your buzz cut, before you get your uniform,

[00:08:40] Speaker 01:
You have to, Mr. Nodoli, you have to report to Ireland Army Hospital.

[00:08:45] Speaker 01:
He dutifully reported to Ireland Army Hospital.

[00:08:49] Speaker 01:
And he was directed to the ophthalmology department.

[00:08:52] Speaker 03:
Well, all of that is very interesting and unfortunate.

[00:08:55] Speaker 03:
But isn't the issue before us whether the Court of Appeals for Veterans Affairs correctly decided that the board

[00:09:06] Speaker 03:
previously decided that there was no cue in the 1977 decision.

[00:09:13] Speaker 03:
And isn't that fact related beyond us?

[00:09:16] Speaker 01:
No, it is not, Your Honor.

[00:09:17] Speaker 01:
Because the problem with the court's decision was that, well, first of all, they had their own law to interpret.

[00:09:28] Speaker 01:
And they didn't address the arguments that were made in the briefs to them.

[00:09:34] Speaker 01:
Those arguments involved

[00:09:36] Speaker 01:
whether or not the board had any responsibility to acknowledge and consider the consequences of the military ignoring its own regulation.

[00:09:49] Speaker 01:
So that was a legal issue.

[00:09:51] Speaker 01:
Secondly, the Court of Appeals for Veterans Claims did not consider the second part of our legal argument, which is whether or not the

[00:10:05] Speaker 01:
Congress, the VA's regulations implementing that 1997 change in the statute, which allowed veterans to go to the board and say, respectfully, gentlemen, or ladies, you made a mistake 20 years ago.

[00:10:24] Speaker 01:
And I'd like you to correct that mistake.

[00:10:26] Speaker 01:
I'd like revision.

[00:10:28] Speaker 01:
Q. And does Q,

[00:10:33] Speaker 01:
Should the Q parameters preclude a veteran from looking back at that BVA decision and say, that board introduced out of thin air a fact and put it into the equation that determined the outcome of that claim?

[00:10:56] Speaker 01:
The board in 1977 looked at this claim

[00:11:02] Speaker 01:
They, in a single sentence, they mentioned the fact that he had been diagnosed with a macular hole.

[00:11:09] Speaker 01:
But then they ignored that fact for the rest of their decision.

[00:11:13] Speaker 01:
And they said, the claim before us involves aggravation of amblyopia.

[00:11:21] Speaker 01:
That was totally wrong.

[00:11:24] Speaker 01:
Their analysis was totally wrong.

[00:11:27] Speaker 01:
The claim was, I went into the military.

[00:11:32] Speaker 01:
I was diagnosed with amblyopia, but that diagnosis was corrected two days later.

[00:11:40] Speaker 01:
The board said in 1977, this is a claim involving amblyopia.

[00:11:46] Speaker 01:
And aside from a single remark recognizing that there had been a diagnosis two days later, the answer I understand

[00:12:00] Speaker 02:
Where you're taking us.

[00:12:01] Speaker 02:
In either case, there's no, it's not disputed that it was pre-existing.

[00:12:06] Speaker 01:
No, that's not, that's not what we're arguing.

[00:12:08] Speaker 01:
We're arguing with that.

[00:12:09] Speaker 02:
So we have a pre-existing condition, which is called one thing or another.

[00:12:14] Speaker 02:
And years later, something else happens to the eye, which may very well have been, have flowed from that pre-existing condition.

[00:12:27] Speaker 01:
We're not, we're not.

[00:12:29] Speaker 02:
And no one says that there was any mistake in that connection.

[00:12:35] Speaker 02:
So how do you take us to responsibility for that?

[00:12:40] Speaker 01:
The regulation that was in effect in 1977, a VA regulation, another regulation that was ignored in the decision that we're seeking a revision of, the regulation had to do with what evidence should the VA look at to

[00:12:58] Speaker 01:
determine whether or not a preexisting condition had been aggravated, because you can be service-connected on the basis of aggravation.

[00:13:08] Speaker 01:
And the regulation said that you had to look at the evidence of the condition prior to service.

[00:13:15] Speaker 01:
You had to look at the evidence regarding the condition during service.

[00:13:19] Speaker 01:
And you had to also look at the evidence regarding that medical condition subsequent to service.

[00:13:26] Speaker 01:
This is where

[00:13:28] Speaker 01:
the board in 1977 failed to apply a then existing VA regulation.

[00:13:35] Speaker 01:
They first misidentified the medical condition that was at issue by calling it, saying, this veteran had amblyopia when he entered the military.

[00:13:49] Speaker 01:
No, that was false.

[00:13:50] Speaker 01:
The veteran had an eye condition which was diagnosed as amblyopia, and two days later,

[00:13:57] Speaker 01:
Someone with the proper equipment corrected that diagnosis and identified a macular hole.

[00:14:06] Speaker 01:
The veteran served for three years.

[00:14:08] Speaker 01:
He then was separated from the military.

[00:14:13] Speaker 01:
And in his separation exam, they didn't do anything to look at whether that macular hole had gotten worse or not.

[00:14:22] Speaker 01:
He then goes out into the civilian world, and he has to go get a driver's license.

[00:14:27] Speaker 01:
He applies for a driver's license.

[00:14:29] Speaker 01:
They have him cover his left eye and read the eye chart.

[00:14:33] Speaker 01:
And the state of North Carolina said, sorry, sir, no driver's license for you.

[00:14:40] Speaker 01:
That motivated him to go to see an ophthalmologist.

[00:14:44] Speaker 01:
The ophthalmologist said, upon looking at his right eye under a scope, sir, I can't do surgery right here and now in my office.

[00:14:55] Speaker 01:
I'm directing you to go immediately to the VA medical, to the VA hospital down the road, where he went and he was admitted.

[00:15:05] Speaker 01:
And the very next day, he had surgery for a detached retina.

[00:15:10] Speaker 01:
So what I am contending, what the veteran is contending, is that the board did not look at the condition.

[00:15:19] Speaker 01:
And they misidentified the medical condition at issue, which rendered their decision

[00:15:26] Speaker 01:
kind of off point.

[00:15:29] Speaker 01:
And then they failed to apply the VA regulation that said you have to look at the condition before, during, and subsequent to service.

[00:15:39] Speaker 01:
They ignored the subsequent to service part to a large extent.

[00:15:45] Speaker 01:
And I'll go into my bottle of Tommy if I have to.

[00:15:55] Speaker 01:
the board concluded that his amblyopia had not gotten worse.

[00:16:01] Speaker 01:
Now, he did not have amblyopia.

[00:16:04] Speaker 01:
He had a macular hole.

[00:16:07] Speaker 01:
And he had served for three years.

[00:16:12] Speaker 01:
He had gone through basic training.

[00:16:13] Speaker 00:
In 1997, when the board made its decision, did it have evidence before regarding the macular hole?

[00:16:20] Speaker 01:
Yes, it did.

[00:16:21] Speaker 01:
It had the service record.

[00:16:23] Speaker 00:
So it did consider the macular hole.

[00:16:29] Speaker 01:
Your Honor, what the board said was, when he came into the military, he had amblyopia.

[00:16:37] Speaker 01:
And let me just spin this out for you.

[00:16:40] Speaker 00:
No, I'm trying to get you to a point, because you're almost out of time, or I think you may be out of time.

[00:16:45] Speaker 00:
In 1997, the board did consider the macular hole problem, correct?

[00:16:53] Speaker 01:
No, I would say no to that question.

[00:16:56] Speaker 00:
You say no because the record is kind of silent as to that point.

[00:17:01] Speaker 00:
We don't know precisely whether it did or not.

[00:17:05] Speaker 01:
Well, they mention a macular hole by saying an ophthalmology exam revealed a macular hole on the right.

[00:17:14] Speaker 01:
But then when you go down to their discussion and evaluation, and when you go to their findings of fact,

[00:17:22] Speaker 01:
The first finding of fact is upon entry into service, he had amblyopia.

[00:17:33] Speaker 01:
There was no gross change in his visual acuity between entries into service, et cetera.

[00:17:39] Speaker 00:
What I'm asking is very specific.

[00:17:41] Speaker 00:
In 1997, did the board consider or have before it the evidence concerning the macular hole?

[00:17:47] Speaker 01:
They had the evidence.

[00:17:48] Speaker 01:
They, in a single sentence,

[00:17:52] Speaker 00:
And how can we say that the board clearly erred?

[00:17:56] Speaker 00:
Maybe there's an error there, but is it clear error?

[00:17:59] Speaker 01:
Yes, sir.

[00:18:00] Speaker 01:
And it's outcome determinative as well.

[00:18:04] Speaker 01:
Let me just go back and finish the answer to your question, and I'll be very brief.

[00:18:10] Speaker 01:
They mentioned that he was diagnosed with a macular hole several days after he entered service.

[00:18:17] Speaker 01:
But then, when they go down to whether or not

[00:18:21] Speaker 01:
his eye condition increased in severity, their response is there in the finding is a fact, number two, at appendix 55, the board says, there was no gross change in his visual acuity between entry into service and separation.

[00:18:43] Speaker 01:
That is the telltale.

[00:18:45] Speaker 01:
They were not looking at, they were not asking whether a macular hole had

[00:18:51] Speaker 01:
increased in severity due to in-service aggravation, what they were doing was asking, did the amblyopia get worse?

[00:18:59] Speaker 01:
Because if you have a macular hole and you have 20 slash 400 vision, your visual acuity is not going to get any worse.

[00:19:10] Speaker 01:
But if you have a macular hole, what will happen under the rigors of military service is that macular hole will get worse.

[00:19:20] Speaker 01:
and you'll end up with a detached retina.

[00:19:23] Speaker 01:
What the board concluded by focusing on the wrong consequence, visual acuity as opposed to the integrity of this gentleman's retina, they concluded that he had served for three years.

[00:19:40] Speaker 01:
He had been a civilian for 29 days.

[00:19:43] Speaker 01:
And he had gone to an eye doctor after being rejected for a driver's license.

[00:19:49] Speaker 01:
And that eye doctor took a history, directed him to go immediately to the VA hospital.

[00:19:57] Speaker 01:
And in that history, the doctor wrote, no sudden onset.

[00:20:03] Speaker 01:
There was no event in those 29 days which indicated that anything had dramatically changed the integrity of his retina.

[00:20:13] Speaker 01:
So the board was presented but ignored in 77

[00:20:18] Speaker 01:
an issue, which was more likely, whether his macular hole had progressed to a detached retina in 29 days of civilian life, when he went to a doctor after being denied a driver's license.

[00:20:38] Speaker 01:
And the doctor said to him, whoa, you better get to the VA hospital today.

[00:20:45] Speaker 01:
And the veteran in response to that said,

[00:20:49] Speaker 01:
Nothing's happened since I've been discharged from the military.

[00:20:53] Speaker 01:
That's caused the physician to write no sudden onset in his report.

[00:20:58] Speaker 00:
OK, thank you.

[00:20:58] Speaker 00:
You answered my question.

[00:20:59] Speaker 01:
OK, very good.

[00:21:00] Speaker 01:
Thank you, Your Honor.

[00:21:02] Speaker 02:
Thank you, Mr. Spakos.

[00:21:08] Speaker 02:
Ms.

[00:21:08] Speaker 02:
Jensen.

[00:21:09] Speaker 02:
Good morning.

[00:21:17] Speaker 04:
May it please the court.

[00:21:19] Speaker 04:
Mr. Nodolny honorably served this country during the Vietnam War era.

[00:21:23] Speaker 04:
After leaving service, he suffered a detached retina in his right eye, for which he then sought service connection disability compensation.

[00:21:30] Speaker 04:
Although the board in 1977 denied his claim, Mr. Nodolny sought to reopen that claim in 2006.

[00:21:37] Speaker 04:
And when he presented new and material evidence, his request was granted.

[00:21:41] Speaker 04:
He was granted service connection benefits related to his right eye, which he continues to receive to this day.

[00:21:49] Speaker 04:
Now, however, before this court, Mr. Nadolny asks us to revisit the 1977 board decision and find that there's clear and unmistakable error based on a medical opinion that was rendered at that time, which concluded that there was no causal relationship between the macular hole that was found in service and his post-service disability of a detached retina.

[00:22:10] Speaker 04:
In doing so, he asks this court to create a third exception to the rule of finality

[00:22:15] Speaker 04:
by allowing Q, clear and unmistakable error, to be found based on a disagreement with a medical opinion that was offered before the boards.

[00:22:24] Speaker 04:
And before the board was, before 1991 when the board was required to obtain an independent medical evaluation.

[00:22:33] Speaker 04:
And this the court cannot do.

[00:22:35] Speaker 04:
As the court held in Cook, there can be no judicially created exceptions to the rule of finality.

[00:22:42] Speaker 04:
There exists two exceptions to the rule of finality, which are provided for by statute, and that is Q, clear and unmistakable error, and the new and material evidence standard.

[00:22:53] Speaker 03:
Mr. Sevico said there was no opportunity to appeal the 1977 decision, right?

[00:23:00] Speaker 04:
That's true, but that board decision then became final, which then paved the way for this new and material evidence standard, and also Q claims could be brought in order to

[00:23:11] Speaker 04:
look back at earlier decided claims to see if there was a reason to do that.

[00:23:16] Speaker 03:
So he's not raising it.

[00:23:18] Speaker 03:
He hasn't shown a cue basis here, just a difference of opinion concerning the original diagnosis.

[00:23:25] Speaker 04:
That's correct.

[00:23:26] Speaker 04:
And these types of claims are specifically prohibited by the regulations and also by this court.

[00:23:31] Speaker 04:
But in the federal regulation, and I'm looking at 38 CFR

[00:23:35] Speaker 04:
Section 20.1403 codifies what can constitute Q and what cannot constitute Q. And a changed medical diagnosis, so a diagnosis that seeks to revise prior medical diagnosis, cannot form the basis for a Q claim, nor can an evaluation of evidence claim or a disagreement with facts that have been previously determined.

[00:24:01] Speaker 03:
Even if it's shown that

[00:24:03] Speaker 03:
If the correct diagnosis had been made, then he would have been able to recover.

[00:24:08] Speaker 04:
Correct.

[00:24:09] Speaker 04:
A difference of diagnosis cannot form the basis of Q unless you can show that there is some clear, mistakeable error.

[00:24:16] Speaker 04:
But that is not the situation that we are in here.

[00:24:19] Speaker 04:
We are talking about differences.

[00:24:21] Speaker 03:
You just read a regulation to me, to us, that said a change in diagnosis cannot be Q. That's correct.

[00:24:31] Speaker 04:
I mean, if the original diagnosis itself could constitute clear and unmistakable error, for example, you're diagnosed with heart failure and one doctor says, no, I think you just stubbed your toe.

[00:24:44] Speaker 04:
So there, you might have a basis to say any lay person would recognize that was clearly erroneous and would constitute.

[00:24:53] Speaker 03:
Notwithstanding the regulation you read to us?

[00:24:57] Speaker 04:
Well, the regulation seems pretty clear on its face, and it clearly controls the outcome here.

[00:25:02] Speaker 03:
In any events, we're not dealing with stubbing a toe.

[00:25:04] Speaker 04:
We're not dealing with stubbing a toe.

[00:25:05] Speaker 04:
We're not dealing with a gross change in a diagnosis.

[00:25:10] Speaker 04:
What we're talking about is an eye condition, a couple different eye conditions, in fact, which can have multiple causes, and the pathophysiology of which is not well understood and is still not well understood.

[00:25:22] Speaker 04:
In fact, today even,

[00:25:25] Speaker 04:
immaculate whole accounts for something less than 1% of all detached retinas.

[00:25:30] Speaker 04:
Furthermore, the board in 1977 was not presented with evidence that Mr. Nadolny subsequently presented to the board in 2006 of some in-service injuries or traumas that he sustained.

[00:25:42] Speaker 03:
And he got 30% disability for that.

[00:25:45] Speaker 04:
He is receiving 30% disability for that, which is the highest disability he can receive.

[00:25:49] Speaker 00:
Does it matter whether or not the 1977 board considered

[00:25:53] Speaker 00:
evidence about the molecular hole?

[00:25:56] Speaker 04:
The macular hole?

[00:25:57] Speaker 04:
Well, that was in the record, and it was before the board.

[00:25:59] Speaker 04:
And they mentioned it in their findings.

[00:26:01] Speaker 04:
So that was clearly something that they considered, and they weighed.

[00:26:04] Speaker 04:
And the doctor who was sitting on the board would have considered that diagnosis as well.

[00:26:10] Speaker 00:
I think they understood at that time already about the detached retina, right?

[00:26:14] Speaker 00:
That problem had already occurred?

[00:26:16] Speaker 04:
The detached retina occurred after service.

[00:26:19] Speaker 00:
Yes, but before the board decision?

[00:26:22] Speaker 04:
Correct.

[00:26:24] Speaker 04:
So there are actually two determinations here that the board needed to make and that they did, which first was the amblyopia.

[00:26:34] Speaker 00:
So why wouldn't this case fall into that 1% that you talked about, a detached retina due to a macular hole?

[00:26:42] Speaker 04:
Well, it could have, it could not have, but that was in the discretion of the board and they had a medical opinion that weighed in on that.

[00:26:48] Speaker 04:
But typically, there needs to be more than just a macular hole to lead to a detached retina

[00:26:55] Speaker 04:
A clear case of, or some evidence that can kind of sway in the direction of causation.

[00:27:00] Speaker 00:
But we don't know that from the board's decision.

[00:27:03] Speaker 00:
We don't know.

[00:27:04] Speaker 00:
What you're arguing now, we don't know that from the board decision.

[00:27:08] Speaker 04:
But we do know that there wasn't any evidence of injury or trauma while he was in service.

[00:27:13] Speaker 00:
Well, the detached retina.

[00:27:15] Speaker 04:
But that did not occur in service.

[00:27:17] Speaker 00:
Well, they found out two days after he left service that the retina had detached, or thereabouts.

[00:27:22] Speaker 00:
29 days.

[00:27:24] Speaker 00:
29 days.

[00:27:26] Speaker 04:
Correct.

[00:27:26] Speaker 04:
But there was no evidence while he was in service that he sustained any kind of trauma to his eye or his head that could have been subsequently caused a detachment.

[00:27:37] Speaker 02:
But they found the detached retina really right after he left the service.

[00:27:42] Speaker 02:
Why does it matter whether they knew he had the macular hole before he entered the service or two days after he entered when there is this

[00:27:55] Speaker 02:
very close relationship of the detached retina, which nobody seemed to say in the record.

[00:28:03] Speaker 02:
This must have happened in those 29 days.

[00:28:07] Speaker 04:
So if I understand your question, why does it matter that the macular hole happened or was diagnosed early on in his in-service career?

[00:28:16] Speaker 02:
When you have the disability, the detached retina, which is observed so close to the end to the discharge,

[00:28:25] Speaker 02:
from service.

[00:28:27] Speaker 02:
I don't think anybody says that there's no relationship.

[00:28:32] Speaker 02:
They say that it must have occurred, more likely than not, in those 29 days in order to avoid any connection with service.

[00:28:43] Speaker 02:
And meanwhile, there is the information of a serious eye problem.

[00:28:49] Speaker 02:
While in service, whether it happened before or after, why does that matter?

[00:28:54] Speaker 04:
Well, because there still has to be a causal relationship between the in-service, the macular hole that Mr. Gendolny is now... Well, that's my question.

[00:29:04] Speaker 02:
What is discovered just right after leaving service?

[00:29:08] Speaker 02:
Isn't there, as we see so often, that this must have been... something must have happened during service, whether there was a prior macular hole which could have led to the detached retina or

[00:29:23] Speaker 02:
whenever the macular hole occurred, by the time he leaves service, he has a detached retina.

[00:29:30] Speaker 02:
Isn't there a presumption of connection?

[00:29:34] Speaker 04:
No, there is not.

[00:29:35] Speaker 04:
That's a medical question as to whether or not the macular hole actually caused the detachment.

[00:29:40] Speaker 02:
I'm not asking for the finding of fact.

[00:29:42] Speaker 02:
I'm asking about presumptions.

[00:29:44] Speaker 02:
When a disability is diagnosed promptly after leaving service, isn't there some sort of

[00:29:54] Speaker 02:
common sense, sense that something must have happened during service.

[00:30:01] Speaker 02:
Despite the examination on entry, there was nothing about a detached retina.

[00:30:07] Speaker 04:
Correct.

[00:30:08] Speaker 04:
I think the presumption of aggravation, which you're alluding to here, is... A presumption of connection.

[00:30:16] Speaker 02:
I'm not talking about aggravation that takes us back to the original cause of the retina.

[00:30:23] Speaker 02:
of some sort of connection when there is, on leaving service, a disability that everyone agrees was not present when he entered service.

[00:30:35] Speaker 02:
He may have had a propensity when he entered, which was discovered when they found the macular hole.

[00:30:43] Speaker 04:
The presumption of soundness, perhaps, is what you're referring to.

[00:30:47] Speaker 02:
The presumption of connection is what I'm looking for.

[00:30:50] Speaker 04:
I don't know of any such presumption that is what the board determines is when you have a disability that either arises initially and then gets worse, we presume that's connected during the time that the soldier is in service.

[00:31:05] Speaker 02:
Are you saying there's a presumption of no connection when a disability is discovered?

[00:31:12] Speaker 02:
promptly after leaving the service?

[00:31:14] Speaker 04:
There is no presumption at all.

[00:31:16] Speaker 04:
It is up to the board to decide using the principles of connection disability to decide, to determine whether or not there is a connection.

[00:31:23] Speaker 02:
Are you sure?

[00:31:23] Speaker 02:
I'm not so sure that precedent supports such a blanket statement that there's no presumption when a disability is discovered promptly upon leaving service.

[00:31:35] Speaker 02:
And it was known it didn't exist when you entered service, that there is no

[00:31:41] Speaker 02:
presumption, what is the veteran supposed to do?

[00:31:46] Speaker 02:
Go back through every day of those three years.

[00:31:49] Speaker 02:
Actually, he did.

[00:31:51] Speaker 02:
He said he had been struck on the head and a few other things happened.

[00:31:55] Speaker 04:
He was able to present that evidence.

[00:31:58] Speaker 04:
And when that was brought to the new board's attention, they found a connection with the service.

[00:32:05] Speaker 04:
It's just that none of that evidence was before the board or in his records.

[00:32:10] Speaker 04:
in 1977, but none of the trauma that he subsequently alleged.

[00:32:14] Speaker 00:
In 1977, the board had a diagnosis before it.

[00:32:18] Speaker 00:
And that was that the detached retina had been caused either by the cyst or by the macular hole, correct?

[00:32:27] Speaker 00:
Correct.

[00:32:28] Speaker 00:
OK, so they did have a diagnosis.

[00:32:31] Speaker 00:
It's caused by one of the two things.

[00:32:33] Speaker 00:
It seems to me that the board failed at that point to inquire, well, which one is it?

[00:32:39] Speaker 00:
Because if it would have been the cyst,

[00:32:41] Speaker 00:
then there'd be no connection.

[00:32:43] Speaker 00:
If it was connected to the macular hole, then there could be a service connection under the way that Judge Newman has been citing.

[00:32:56] Speaker 00:
But the board didn't decide that.

[00:32:59] Speaker 00:
The board made no decision at that point.

[00:33:01] Speaker 00:
Shouldn't we remand in order for the board now to consider whether the detached retina was caused by the

[00:33:09] Speaker 00:
molecular hole or by the cyst?

[00:33:13] Speaker 04:
Well, even if the board properly assumed that the macular hole was diagnosed initially, it still would have to determine that the macular hole caused the detached retina.

[00:33:27] Speaker 00:
But it didn't do that.

[00:33:29] Speaker 04:
But it did consider that, because the board instead decided that the cyst... But it could have been caused by the cyst, too.

[00:33:36] Speaker 04:
Right, or it could have been caused by something else entirely.

[00:33:39] Speaker 00:
But the board doesn't say that.

[00:33:42] Speaker 00:
The board doesn't say it was caused by something other entirely.

[00:33:49] Speaker 00:
It doesn't say that it was caused by the cyst.

[00:33:53] Speaker 00:
It makes no distinction.

[00:33:55] Speaker 04:
It says based on sound medical principles, the cyst predated the detached retina.

[00:34:01] Speaker 04:
I mean, the board is a little

[00:34:05] Speaker 04:
succinct in its finding, to be sure.

[00:34:07] Speaker 00:
But what do you mean succinct?

[00:34:10] Speaker 00:
Clear or not enough?

[00:34:11] Speaker 04:
It just has a short answer and doesn't elaborate on its medical opinion.

[00:34:18] Speaker 00:
But we do know that.

[00:34:19] Speaker 00:
So then later, when the additional evidence, the new evidence is presented, which basically is the doctor's corroboration of what the appellant was talking about all along, they did make those connections.

[00:34:35] Speaker 04:
They did, Your Honor, but again, that was based on new evidence.

[00:34:37] Speaker 00:
I just have a hard time seeing why the board would conclude at a later date that the macular hole was the basis for the detached retina, but there was no way of knowing that until much, much later.

[00:34:54] Speaker 00:
What did the board know that or consider that in 1997?

[00:34:57] Speaker 04:
In 2006, when it made its new determination,

[00:35:03] Speaker 04:
Um, it considered a testimony that was offered by Mr. Dolaney that he did in fact sustain some trauma or some head injury, which, um, based on medical principles in 2006 and a new doctor's diagnosis, um, opinion that that could show that it was likely more likely than not that the macular hole, um, progressed to the detached retina.

[00:35:29] Speaker 04:
But more likely than not, does not form the basis for error in the 1977 decision.

[00:35:35] Speaker 04:
And it certainly doesn't lead to clear, non-mistakable error.

[00:35:40] Speaker 04:
So if there are no further questions, I respectfully request that this court uphold the decision of the board below.

[00:35:46] Speaker 02:
Any more questions?

[00:35:48] Speaker 02:
OK.

[00:35:48] Speaker 02:
Thank you, Ms.

[00:35:49] Speaker 02:
Jansen.

[00:35:50] Speaker 02:
Thank you.

[00:35:51] Speaker 02:
OK.

[00:35:52] Speaker 02:
Mr. Sabikos, you have about four minutes.

[00:35:57] Speaker 01:
Thank you, Judge Neumann.

[00:35:59] Speaker 01:
This is a relatively complex case.

[00:36:04] Speaker 01:
And some of the questions from the bench and some of the statements.

[00:36:09] Speaker 03:
Well, it's a complex case if one has to consider the facts in this diagnosis.

[00:36:16] Speaker 03:
But it's not a complex case when it comes to our review of what the Veterans Court held.

[00:36:25] Speaker 03:
and the question whether it relates to facts.

[00:36:28] Speaker 01:
I agree with you, Judge Alari.

[00:36:32] Speaker 01:
But if you just allow me to finish the thought, I think a number of misstatements were made.

[00:36:42] Speaker 01:
And I don't blame counsel, but I will point that out.

[00:36:47] Speaker 01:
And some of the questions from the bench, I think, also indicate that the situation, including

[00:36:54] Speaker 01:
The legal analysis, most importantly, solely the legal analysis, is not perfectly understood by both sides here.

[00:37:03] Speaker 01:
So let me try to clarify.

[00:37:06] Speaker 01:
I think in response to Judge Reyna's question, the difference between 1977 and 2006 was, firstly, in 1977,

[00:37:24] Speaker 01:
the board misidentified the condition.

[00:37:28] Speaker 01:
They looked at amblyopia and whether amblyopia had increased in severity.

[00:37:35] Speaker 00:
Amblyopia that- I think we understand that part, counselor.

[00:37:40] Speaker 00:
The question you have to deal with is also at that time in 1977, the board had before it evidence concerning the macular hole.

[00:37:50] Speaker 01:
All they had, your honor.

[00:37:52] Speaker 01:
was a diagnosis, two days into service.

[00:37:56] Speaker 01:
And this is where I think we're failing to get to the heart of the matter.

[00:38:02] Speaker 01:
In 1977, when they asked the question, had amblyopia gotten worse?

[00:38:08] Speaker 01:
Had it been aggravated by service?

[00:38:10] Speaker 01:
You cannot get worse than 2,400 in visual acuity.

[00:38:16] Speaker 01:
What was really at issue was, did

[00:38:21] Speaker 01:
degenerative eye condition get worse.

[00:38:24] Speaker 01:
That is not measured by visual acuity.

[00:38:27] Speaker 01:
It is measured by whether or not that retina is still attached to the position in the eye where it needs to be.

[00:38:37] Speaker 01:
And 29 days after the veteran left service, we clearly know it was not.

[00:38:45] Speaker 01:
There's another misunderstanding.

[00:38:48] Speaker 01:
The progression is,

[00:38:50] Speaker 01:
Someone has what is some kind of a tearing process of the retina.

[00:38:59] Speaker 01:
Then that person gets a macular cyst.

[00:39:04] Speaker 01:
Then that progresses to a macular hole.

[00:39:07] Speaker 01:
Finally, that person has a detached retina.

[00:39:12] Speaker 01:
In this case, the board relied upon its own medical opinion, which it was allowed to do at that time.

[00:39:20] Speaker 01:
But that medical opinion was clearly wrong.

[00:39:24] Speaker 01:
You don't get a macular cyst after you have detached retina.

[00:39:31] Speaker 01:
And that's why we have this question about, should the VA be able to prohibit any new evidence when it comes to a cue claim?

[00:39:45] Speaker 01:
And ordinarily, I would say yes.

[00:39:48] Speaker 01:
When this court reviewed the regulations that the VA wrote after Congress amended the statute in 97 and said you can seek revision of the BVA decision, the court did not have anything related to this question before.

[00:40:04] Speaker 01:
Ordinarily, if you're a veteran and you're denied and that denial becomes final, you should not be able to come forward.

[00:40:16] Speaker 01:
with a medical opinion from 20 years down the road and say, on this basis, there was Q in that decision.

[00:40:26] Speaker 01:
I have no problem with that.

[00:40:27] Speaker 01:
That medical opinion was not on the table.

[00:40:31] Speaker 01:
But at that time, the board was able to, on the basis of its own medical opinion, not an independent medical opinion, the board was permitted to decide the claim.

[00:40:47] Speaker 01:
Well, what if that medical opinion, what Ms.

[00:40:51] Speaker 01:
Jansen referred to as sound medical principles, which is articulated in the board decision from 77, that immaculate cyst follows a detached retina.

[00:41:04] Speaker 01:
It doesn't occur before you have a detached retina.

[00:41:08] Speaker 01:
What if that is 100% incorrect?

[00:41:11] Speaker 01:
What if that medical conclusion

[00:41:16] Speaker 01:
is contrary to the medical literature that, prior to that board decision, has been around for 50 years.

[00:41:26] Speaker 01:
And I cited that in my Q motion.

[00:41:29] Speaker 01:
Now, ordinarily, you should not be able to go back and say, well, here's something that wasn't in the claims file.

[00:41:38] Speaker 01:
But I want you to look at it in the context of a Q motion.

[00:41:43] Speaker 01:
But what if the board itself introduced a fact that was incorrect and can be shown irrefutably as being incorrect on the basis of the medical literature that was in place on that date?

[00:42:00] Speaker 01:
I showed that in my Q-motion.

[00:42:02] Speaker 01:
And what the VA is saying is, and what the lower court didn't even address, is why should the rule

[00:42:13] Speaker 01:
this black and white rule for no new evidence, why should that apply under this set of circumstances?

[00:42:20] Speaker 01:
The Veterans Court itself said that a Q motion is seeking to show what the correct facts were on the date of that decision, what the correct law was on the date of that decision.

[00:42:37] Speaker 01:
And based upon the correct facts and the correct law,

[00:42:41] Speaker 01:
review that decision and revise it.

[00:42:45] Speaker 01:
In this case, the board itself, it was lawful for the board to do this.

[00:42:51] Speaker 01:
But it's not the question whether it was lawful or unlawful.

[00:42:54] Speaker 01:
The question is, was the board introducing on its own a clearly erroneous fact in an equation that consisted of the first term of the equation was a condition noted at entry.

[00:43:12] Speaker 01:
revised diagnosis two days later, plus military service, plus 29 days of civilian life.

[00:43:22] Speaker 01:
And here comes the board.

[00:43:23] Speaker 01:
And into this equation, they introduce what was clearly an unsound medical principle.

[00:43:30] Speaker 01:
You do not get a macular cyst after a detached retina.

[00:43:35] Speaker 01:
It is a precursor to a detached retina.

[00:43:38] Speaker 01:
So they introduced an unsound medical principle.

[00:43:43] Speaker 01:
They misidentified the medical condition in question.

[00:43:47] Speaker 01:
And they ignored the presumption that you were searching for, Judge Newman, the presumption of aggravation, which was to be determined by looking at all the evidence before, during, and after service.

[00:44:01] Speaker 01:
They ignored the fact that on the 29th day, he goes to a doctor.

[00:44:08] Speaker 01:
And he gives a medical history to the doctor.

[00:44:11] Speaker 01:
Well, Sarah, what happened recently to cause this?

[00:44:15] Speaker 01:
Nothing I know of.

[00:44:16] Speaker 01:
I just came out of the military.

[00:44:19] Speaker 02:
I think we have the argument.

[00:44:22] Speaker 01:
Yeah, the point is, should they be permitted to just ignore the fact that their doctor mistakenly put an element into the decision-making process?

[00:44:34] Speaker 01:
Thank you, Your Honors.

[00:44:35] Speaker 01:
I really appreciate your consideration.

[00:44:37] Speaker 02:
Okay, thank you.

[00:44:38] Speaker 02:
Thank you both.

[00:44:39] Speaker 02:
The case is taken under submission.

[00:44:41] Speaker 02:
That concludes our argued cases for this morning.