[00:00:38] Speaker 02: Okay, our third case this morning is number 17, 2067, Topliff versus Wilkie. [00:00:45] Speaker 02: Mr. Wilhaber. [00:00:47] Speaker 03: Good morning, Your Honors. [00:00:48] Speaker 03: I'm Michael Wilhaber representing Mrs. Topliff, and with me at council table is Katrina Eagle. [00:00:55] Speaker 03: Mrs. Topliff's appeal provides this court with an opportunity to clarify a veteran's burden [00:01:06] Speaker 03: to trigger the presumption of aggravation under section 1153. [00:01:13] Speaker 03: To this date, there really isn't any clear guidance from either this court or the DA about what that burden actually is. [00:01:22] Speaker 03: In the Wagner case, the court touched on what the burden was. [00:01:28] Speaker 03: It announced that there was a burden that was on the veteran, but that is as far as it went. [00:01:33] Speaker 03: They didn't go any further and provide any details on that. [00:01:36] Speaker 03: In the Jensen case, this court did provide a lot of detail about what the veteran's burden was to trigger the presumption. [00:01:46] Speaker 03: But that case involved a narrow classification of veterans who incurred the increase in their disability under combat conditions. [00:01:55] Speaker 03: There's a special regulation statute about that that makes it a very liberal burden to trigger the presumption. [00:02:07] Speaker 03: But what's remaining is what does the average veteran who had a pre-existing injury have to do to trigger the presumption of aggravation? [00:02:18] Speaker 03: We think it's very simple and straightforward. [00:02:21] Speaker 03: The plain language of the statute provides that a pre-existing injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during active service. [00:02:35] Speaker 03: That's very simple. [00:02:37] Speaker 03: In Mr. Toplitz's case, he did have a pre-existing injury of the left elbow. [00:02:42] Speaker 03: He was accepted into service nonetheless. [00:02:45] Speaker 03: After seven months of service without any problems with his elbow, he re-injured it after he fell out of a truck while they were on night maneuvers. [00:02:57] Speaker 03: And after that, the Army documented that his elbow condition had worsened. [00:03:03] Speaker 03: Under these circumstances, after Mr. Topliff got out of the service and he filed his claim for benefits based on aggravation of a pre-existing condition, given the record that showed that there was an increase in disability during service, he should have then afforded the benefit of the presumption. [00:03:25] Speaker 03: The VA at the time denied his claim. [00:03:29] Speaker 02: How do we know that they didn't? [00:03:31] Speaker 02: given the benefit of the case. [00:03:32] Speaker 03: Because they didn't make the specific finding that the statute requires. [00:03:37] Speaker 03: And there's a case law that says- No, they weren't required at the time to write down what their rationale was. [00:03:44] Speaker 03: What you're talking about, Your Honor, is the rule that was announced in the Tolley case. [00:03:50] Speaker 03: And Joyce, which was a decision written by Judge Steinberg, established that [00:04:00] Speaker 03: Cases involving aggravation where the government was required at the time to make a specific finding, that's an exception to the Natali case. [00:04:10] Speaker 03: We're not trying to apply today's standards to what happened back in 1946. [00:04:17] Speaker 03: The statute at the time says there has to be a specific finding that the increase in disability is due to the natural progress of the disease. [00:04:26] Speaker 03: Well, that's what's required to rebut the presumption. [00:04:31] Speaker 03: Exactly. [00:04:31] Speaker 01: The way I take your argument is that you believe that the presumption is invoked and thus put in place on any evidence of a flare-up or an increase, something where the disability that they had coming into service is manifested in service. [00:04:50] Speaker 01: And you're saying any piece of evidence invokes that. [00:04:56] Speaker 01: whether or not there are some other factors to be considered comes into play in terms of the analysis of the secretary when he comes in to rebut the presumption. [00:05:04] Speaker 03: I think that's the logical way that the statute reads. [00:05:09] Speaker 03: That's the question. [00:05:10] Speaker 03: We described that in our brief. [00:05:11] Speaker 03: It clearly is a sequential process. [00:05:15] Speaker 03: Otherwise, if you take what the government says is how to interpret the rule, [00:05:22] Speaker 03: eliminates the presumption altogether. [00:05:24] Speaker 03: There's no place for a presumption in the government. [00:05:28] Speaker 01: And reading down in the circuit says that aggravation may not be conceded, right, or the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to the service. [00:05:49] Speaker 01: Exactly. [00:05:50] Speaker 01: So I read that where they say on the basis of all the evidence of record, that includes more than just the evidence that the veteran might put in that there was an event in service that related to the disability. [00:06:08] Speaker 03: I believe that it's more reasonably read as being part of the rebuttal process rather than triggering the presumption itself. [00:06:18] Speaker 01: Well, you only get the presumption as a basis of the concession, right, that the disability underwent an increase during service. [00:06:33] Speaker 01: In this language, it seemed to me when they're talking about you don't get the concession, so you don't get the presumption started. [00:06:44] Speaker 03: Respectfully, Your Honor, that completely reads the presumption out of the rule. [00:06:48] Speaker 03: Where is the presumption? [00:06:50] Speaker 03: There's no benefit of the presumption. [00:06:52] Speaker 03: The presumption is supposed to be a substitute for evidence, and it's a liberal way of helping veterans establish entitlement to benefits. [00:07:01] Speaker 01: Well, there's difference between showing that the situation is due to the natural progress of the disease, which is the only way that the Secretary can undo the presumption, right? [00:07:13] Speaker 03: They have to make that specific finding based on clear and unmistakable evidence. [00:07:19] Speaker 01: So they might have some evidence that would suggest that the flare-up was anecdotal, wasn't necessarily going to an increase in severity. [00:07:28] Speaker 01: And that evidence would be useless to them in the trial when they were trying to rebut the presumption. [00:07:37] Speaker 01: Those aren't the facts. [00:07:39] Speaker 01: The only way they can present about the presumption is to show that there was this natural progression of the disease. [00:07:47] Speaker 03: Right? [00:07:47] Speaker 03: Yeah, looking at the entire record. [00:07:50] Speaker 03: But if they don't do that, if they fail to make that analysis and make the specific finding, that's error because they didn't comply with the law. [00:07:58] Speaker 02: Well, suppose we disagree with that point. [00:08:00] Speaker 02: Suppose we say that under Natale, at that time, there wasn't any requirement to [00:08:07] Speaker 02: put in writing this finding, then you lose, right? [00:08:12] Speaker 02: That's correct. [00:08:12] Speaker 02: We lose. [00:08:13] Speaker 02: Absolutely. [00:08:16] Speaker 01: So I think I understand your interpretation issue. [00:08:19] Speaker 01: I wasn't certain that you actually made this argument to the Court of Veterans' Appeals. [00:08:25] Speaker 01: I looked in your brief, and I saw that you were objecting. [00:08:29] Speaker 01: You felt that the original RO and then the BVA had misunderstood or misapplied the presumption. [00:08:38] Speaker 03: That's correct. [00:08:39] Speaker 03: That's right. [00:08:40] Speaker 01: But I didn't see you flesh out the specific argument. [00:08:43] Speaker 01: No. [00:08:44] Speaker 03: We had no idea that the Veterans Court would decide the case the way that they did. [00:08:48] Speaker 03: We thought that they would follow the law. [00:08:51] Speaker 03: So it's true. [00:08:51] Speaker 03: We did flesh out that argument. [00:08:53] Speaker 01: Did you actually think you were making a Joyce-type argument? [00:08:58] Speaker 01: I mean, Joyce? [00:08:58] Speaker 03: We did cite this Joyce. [00:08:59] Speaker 01: I know you cited it, but I mean, Joyce, Steinberg took Joyce off on the ground that there just hadn't been a sufficient showing that [00:09:08] Speaker 01: that there was not an increase in severity. [00:09:11] Speaker 01: It's a fact question. [00:09:12] Speaker 03: Well, Joyce isn't exactly on point with everything because Joyce involved the presumption of soundness, and then he talked about the presumption of activation. [00:09:27] Speaker 01: Were you pitching your case to the CABC as a matter of saying you as the last person that can review fact? [00:09:34] Speaker 01: Should we review the facts here and say that we made a showing of an increase in severity? [00:09:38] Speaker 03: We made two arguments to the Veterans Court because clear and unmistakable error has potentially two components. [00:09:44] Speaker 03: You can find CUE based on an error of fact or an error of law. [00:09:49] Speaker 03: We made both arguments to the Veterans Court. [00:09:53] Speaker 03: I think the facts are overwhelming that the veteran's disability was aggravated in service. [00:09:59] Speaker 03: We made that argument, but we also made the argument that they didn't apply [00:10:03] Speaker 03: the law, because they failed to make a specific finding in the record that the disability increased because of its natural progress rather than what happened in service? [00:10:24] Speaker 01: Well, they don't need to make the natural progress finding until the presumption's been invoked. [00:10:30] Speaker 03: Exactly. [00:10:30] Speaker 01: I think that the fact that he submitted the claim for benefits and the record contained evidence that his condition is... Well, this argument that the presumption is triggered by any element of evidence that goes to showing the possibility of increase in severity. [00:10:48] Speaker 01: You can tailor that, Your Honor. [00:10:51] Speaker 01: Did I misunderstand Davis and Mr. Carpenter's argument in Davis? [00:10:55] Speaker 01: I thought he was running the same type of argument up the flagpole. [00:10:59] Speaker 01: I thought in Davis, there was a similar type of argument. [00:11:02] Speaker 03: I'm not familiar with that case. [00:11:04] Speaker 03: I can't see that at the end of my reserve time. [00:11:11] Speaker 02: OK. [00:11:11] Speaker 02: Thank you. [00:11:14] Speaker 02: Mr. Ashford. [00:11:27] Speaker 00: May it please the court. [00:11:28] Speaker 00: Your Honor, is the Veterans Court correctly decided? [00:11:30] Speaker 02: Was Joyce correctly decided or wrongly decided in entailing? [00:11:35] Speaker 00: Joyce was correctly decided, but it's distinguishable, Your Honor. [00:11:39] Speaker 02: So there does have to be a written finding at this period of time? [00:11:46] Speaker 00: Your Honor, I apologize, Your Honor. [00:11:48] Speaker 00: The point that we relied on for Joyce was that there is a weighing of evidence that can occur. [00:11:53] Speaker 02: Now, does there have to be a written finding [00:11:57] Speaker 02: of natural progress of the disease in order to overcome the presumption? [00:12:03] Speaker 00: Pre-1990, Your Honor, we don't believe that there does. [00:12:09] Speaker 00: OK. [00:12:09] Speaker 00: But in this case, Your Honor, the board and the Veterans Court didn't get that far, because they found that it was not clearly undebatable that Mr. Toplow's pre-existing elbow disability increased during service, and that the regional office could have found no aggravation occurred. [00:12:27] Speaker 00: So there is a two-step process under the law that existed at the time for the presumption of aggravation to attach. [00:12:34] Speaker 00: At first, there has to be a finding that there was an increase in the disability. [00:12:39] Speaker 00: And what the board and the Veterans Court found was, yes, there is some evidence, unquestionably, of an increase in disability, but there was other evidence that could suggest temporary flare-ups and the like. [00:12:53] Speaker 00: And on that record, it was reasonable for the regional office to say, [00:12:57] Speaker 00: or could have been for the regional office to find that there was no increase and therefore there is no presumption of aggravation. [00:13:06] Speaker 00: The suggestion was brought up that unless the evidentiary standard is too high for the veteran to prove an increase in disability, that they don't get the benefit. [00:13:19] Speaker 00: What is the benefit of the presumption? [00:13:24] Speaker 00: that they don't have to show, once the veteran establishes that there was a permanent increase in their disability for whatever reason, they don't have to show the connection to their service. [00:13:37] Speaker 00: It is then incumbent upon the secretary to show, well, yes, there is a permanent increase, but the secretary would have to rebut that it's not connected to the service. [00:13:48] Speaker 00: So that's the benefit. [00:13:49] Speaker 01: It gives you service connection, and if the secretary prevails and rebuttals, it breaks the service connection. [00:13:55] Speaker 00: Yeah, exactly, Your Honor. [00:13:56] Speaker 00: The veteran is no longer incumbent upon the veteran to show connection. [00:14:01] Speaker 00: The veteran just has to show that there was a permanent increase. [00:14:05] Speaker 00: And in this case, the law and the regulation, as Your Honor pointed out, clearly calls for a weighing of the evidence. [00:14:13] Speaker 00: That no increase, this is 38 CFR section 3.63 paragraph I, [00:14:19] Speaker 00: There's no increase in severity during service on the basis of all the evidence of the record. [00:14:25] Speaker 00: So it's calling for the regional office to weigh the evidence of record. [00:14:29] Speaker 00: And there's also an important distinction in the regulation with regards to the quantum of evidence at this stage. [00:14:36] Speaker 00: And that's the greater evidentiary or the lesser evidentiary threshold that veterans who are involved in combat or prisoners of war have to satisfy. [00:14:47] Speaker 00: In the same regulation, it goes on to say that the due regard will be given to circumstances of service. [00:14:55] Speaker 00: And veterans who experience flare-ups, symptomatic episodes immediately following combat or being in a prisoner of war, it will be presumed. [00:15:08] Speaker 00: They will get the presumption of aggravation at that point. [00:15:11] Speaker 00: So the regulation does provide guidance on the quantum of evidence that has to be provided. [00:15:18] Speaker 00: And Your Honor, as we pointed out in our brief, we do not believe that Mr. Toblev raised the current claim that he's raising now, that before the board and the Veterans Court, the argument was that the level of evidence was undebatable with regards to increase in disability. [00:15:38] Speaker 00: And here, the nature of the argument has changed. [00:15:41] Speaker 00: The argument is that the threshold of evidence is much lower. [00:15:45] Speaker 00: And that was not presented. [00:15:47] Speaker 00: to the Veterans Court. [00:15:49] Speaker 00: And we believe under the court's jurisdictional statute that that claim can't be considered now. [00:15:56] Speaker 01: Do you think he was limiting himself to a sort of Joyce-style factual challenge to the increase in severity issue? [00:16:04] Speaker 00: Yes, Your Honor. [00:16:04] Speaker 00: As we pointed out in our brief, the arguments that were raised to the Board and the Veterans Court was that the level of evidence that it was unambiguous, it was undebatable. [00:16:14] Speaker 01: Well, he said he was making a double argument. [00:16:16] Speaker 01: He was making a Joyce factual argument, and he was also making a legal argument, he felt. [00:16:22] Speaker 00: Well, as I understood, the argument was that the evidence is undebatable. [00:16:27] Speaker 00: Therefore, the presumption attaches. [00:16:30] Speaker 00: That's how I understand. [00:16:31] Speaker 00: We understand the argument below. [00:16:32] Speaker 00: Here, to this court, we understand the argument that the quantum of evidence, that there just has to be some evidence in the record, and the presumption attaches. [00:16:42] Speaker 00: So we do believe those are different arguments. [00:16:48] Speaker 00: Unless the court has any other further questions, we respectfully request the Veterans Court decision to be affirmed. [00:16:54] Speaker 02: OK. [00:16:54] Speaker 02: Thank you, Mr. Eshman. [00:16:58] Speaker 02: Mr. Wildhaber? [00:16:59] Speaker 03: I'll be quick. [00:17:00] Speaker 03: Just two points, Your Honor. [00:17:01] Speaker 03: First, the Joyce case at pages 50 to 52, Judge Steinberg goes into an extensive discussion about how that case did not fit into the Natale [00:17:19] Speaker 03: rule that says that the VA is not bound by the reasons or bases law that exists now that didn't exist then. [00:17:27] Speaker 03: His point was that the statute at the time required a specific finding. [00:17:32] Speaker 03: And his analysis was that a specific finding to meet that standard, there had to be something in writing. [00:17:41] Speaker 03: And they didn't do that in this case. [00:17:43] Speaker 03: So therefore, they didn't apply the presumption correctly. [00:17:47] Speaker 03: As far as the argument to the Veterans Court, it's absolutely clear we made two arguments. [00:17:54] Speaker 03: We made a factual argument, and we made a legal argument about error. [00:17:59] Speaker 03: And if you look at our brief at the Veterans Court, it's in the record at 232, 237, 243 to 246. [00:18:08] Speaker 03: We clearly make a legal argument that the [00:18:16] Speaker 03: The board failed to recognize that the regional office at the time didn't apply the presumption of aggravation correctly. [00:18:23] Speaker 03: That's a legal argument, because they didn't make the specific finding. [00:18:27] Speaker 03: That's not a factual argument. [00:18:30] Speaker 03: There's nothing further. [00:18:31] Speaker 03: I'll waive the rest of my time. [00:18:34] Speaker 02: OK. [00:18:34] Speaker 02: Thank you, Mr. Woodhaber. [00:18:35] Speaker 02: I thank both counsel. [00:18:37] Speaker 02: The case is submitted.