[00:00:00] Speaker 01:
Williams versus O'Rourke.

[00:00:38] Speaker 01:
Please proceed, Mr. Kelly.

[00:00:40] Speaker 03:
Good morning, and may it please the court.

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Above all, may it please the Lord that it be shown today that the 1985 decision did contain clear and unmistakable error.

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The 2015 decision was nothing if not arbitrary and capricious.

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And the Veterans Court most certainly misinterpreted 38 CFR 3.326, which was in direct contradiction to the plain language which says

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that it does apply to any claim for disability compensation or pension, whether it be an original claim, a reopen claim, or one for increase.

[00:01:21] Speaker 02:
Did you argue 3.326 below or did you argue really 3.327?

[00:01:27] Speaker 03:
We argued both, Your Honor.

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Both before the Board and at the Veterans Court.

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We argued that Mr. Williams, of course, the VA failed to provide an examination.

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We know this.

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But why?

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Why wasn't he given an examination?

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And the answer is because the VA believed that they had already provided an examination.

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3.326 says it applies to any claim.

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a Veterans Administration examination must be afforded in any disability claim.

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They had an examination.

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They had these hospital records from August 6 to August 10 and they said this is our examination for a seizure disorder.

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The claim is not complete and then they proceeded with the denial.

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The problem is

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that examination was not valid by their very own statutes, which explained what an examination is and what it must contain.

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And these records, this patient intake form, completely fell short of what a valid examination would be.

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And at that point, the regulation 19.182 required

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that the case be remanded, which it was not.

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The failure to provide an examination is clear.

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But that's not the basis of the Q Challenge.

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The Q Challenge is based on the why.

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Why wasn't the examination ordered?

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And the reason is because they thought they had an examination already.

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They weren't going to provide an examination.

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This is a claim that was submitted and denied the same month.

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It was reopened and continued the denial, same month.

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They believed that this intake form, these progress notes, would

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satisfy their requirement for an examination and that they weren't going to provide any more examinations for Mr. William as related to a seizure disorder.

[00:04:09] Speaker 02:
So you're claiming that the VA should have ordered an examination back in 1985.

[00:04:17] Speaker 03:
What were?

[00:04:19] Speaker 02:
They didn't order the medical examination in 1985 that you're arguing that they should have.

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Is that right?

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That is an effect that flows from what we're really arguing, and that is that they misapplied the regulation.

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But the harm is that your client didn't get a medical examination in 1985.

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Is that right?

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And the truth, yes, but the harm being that he wasn't given the same

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rights that someone should have received in his position had the regulation been followed.

[00:05:04] Speaker 02:
Isn't it true that any time the VA fails to order a medical examination that it should have ordered, there was some underlying legal error in making that decision not to order a medical examination?

[00:05:26] Speaker 03:
Perhaps.

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However, the VA is far too broad in wishing to bring a Q challenge under the guise of the VA's duty to assist.

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And that was evidenced in those decisions.

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When no analysis was conducted,

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to understand why this regulation was misapplied or why it was ignored.

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And instead it was, if you're going to challenge anything about an examination, we're going to claim duty to assist.

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And then they're going to, right afterwards, cite to this court's Cook opinion.

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And that's unfair to the Q challenge, which says that

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by not following the regulations that Mr. Williams did not get the proper administrative actions that he was afforded by law.

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And as a result, it most certainly, manifestly changed the outcome of his appeal for the board.

[00:06:55] Speaker 01:
Well, you say that.

[00:06:56] Speaker 01:
But the Veterans Court held Mr. Williams had not demonstrated he was prejudiced by failure to obtain this remedy.

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That's a fact finding.

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We can't review that.

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So if the Veterans Court actually made a fact finding that the failure to have conducted an exam in this case did not prejudice your client,

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Even if there was a failure to conduct an exam, we can't review that finding of prejudice because that's a fact finding and we don't have authority to review that.

[00:07:28] Speaker 01:
So I don't see how you can meet the Q standard in light of that.

[00:07:32] Speaker 01:
Even if I agree with you entirely on your regulatory interpretation argument, Q requires that there be an error

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that is outcome determinative, and the Veterans Court expressly found, as a matter of fact, your client wasn't prejudiced by the failure to get an exam.

[00:07:50] Speaker 01:
It's a whole different issue than the one you're arguing now, but it equally resolves your case.

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And I don't have the jurisdiction to look behind that determination.

[00:08:04] Speaker 03:
Your Honor, speaking about the Veterans Court decision, which was

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in plain misinterpretation of the statute.

[00:08:15] Speaker 01:
So to make a finding based on a misinterpretation... The finding that there wasn't prejudice in this case, that's different than their finding about what 3326 or 19.182 mean.

[00:08:30] Speaker 03:
They're saying even if... It's hard to imagine that they can make a

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a determination based on a complete misinterpretation of the statute.

[00:08:41] Speaker 01:
Oh, but they did, and it's a question of fact.

[00:08:44] Speaker 01:
I don't get to review questions of fact.

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Should we hear from the government, or is there anything else you'd like to say before your rebuttal?

[00:08:55] Speaker 01:
Okay, I'll observe my time.

[00:09:09] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:09:12] Speaker 00:
The Veterans Court made three distinct and independent holdings below.

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The first was that Cook bars this claim because as this court held on Bonk and Cook, a cue claim can never be based on a breach of the duty to assist.

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The second holding was that

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3.326 and 3.3267 applies only to original claims.

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We don't disagree with Mr. Williams that 3.326A, subsection A, clearly applies to both reopened and original claims.

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But Mr. Williams did not argue that 3.326A applied.

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He only referenced 3.326C in his briefings in the Veterans Court below.

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And then the third independent holding as Judge Moore was just pointing out is that this case was not outcome determinative because Mr. Williams had failed to show prejudice.

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So the only claim over which this court could potentially exercise jurisdiction is the interpretation of 3.326 as Mr. Williams's claim has been wrongly interpreted.

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But even if you accept that that claim has been preserved and even if you accept that

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the judge misinterpreted in its decision, 3.326A requires that there must have been a reasonable probability that the claim for benefits, the medical claim, is connected to Mr. Williams' service.

[00:10:49] Speaker 00:
That was never argued to the Veterans Court that the reasonable probability prong had been met.

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And contrary to my friend's assertions here,

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The board did not conclude that the reason it was not remanding for a VA examination was because it had already received one.

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Rather, it concluded that there was no reasonable doubt that Mr. Williams' seizure disorder, as diagnosed in 1982 and as presented in 1984 and 1985, was unrelated to his service.

[00:11:20] Speaker 00:
That factual preclusion just has never been at issue.

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It was finalized in 1985.

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It was never appealed.

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And even if the misinterpretation of 3.326A is in this court's jurisdiction at this point, it doesn't make any difference to the case because Mr. Williams cannot demonstrate the reasonable probability prong.

[00:11:48] Speaker 00:
If the panel has any questions, I'm happy to address them.

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Otherwise, we'll rely on our brief.

[00:11:54] Speaker 00:
Okay, thank you.

[00:11:58] Speaker 01:
Mr. Kelly, you have rebuttal time.

[00:12:08] Speaker 03:
Thank you, Your Honors.

[00:12:10] Speaker 03:
The reason why Mr. Williams had to never demonstrate a reasonable probability is because in all of the administrative actions that had taken place, there was no sign whatsoever from the Secretary that they

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believed that there was no reasonable probability of a valid claim.

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Quite the contrary, they accepted the claim even though it was not adjudicated properly.

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They went through the adjudicated process.

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The board made a decision.

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In it, they made no mention of Mr. Williams not raising a reasonable probability of a valid claim.

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Again, the board had a chance in 2015 to say that Mr. Williams has not raised the

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reasonable probability of a valid claim.

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And they did.

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And that's because it had been established that he had raised a reasonable probability.

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That's why they went ahead and adjudicated his claim.

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To say that he hasn't met a reasonable probability after doing all that administrative action, it just doesn't seem to make much sense.

[00:13:26] Speaker 03:
If that's the secretary's position, then they should be given that opportunity to explain that on remand, because that most certainly would also be a finding that would have required them to explain the reasons and bases in the board decision, which they did not.

[00:13:50] Speaker 03:
A manifestly different outcome in the context of Q

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refers to a determination on which the action was predicated.

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In this case, the decision, the action is a denial, of course.

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That was the action.

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Well, what are the determinations on that action?

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Well, they determined that the record was complete.

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they determined the record was correct, and they went ahead with an action, which is denial.

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However, if those determinations are different, if the record wasn't complete, if it wasn't correct, then that would require a different outcome.

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The board has three possible outcomes ensuing from any board hearing.

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You have a denial, a grant, and you have a remand.

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Of course, if you're granted,

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That's the end of the game.

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It's over and you get what you want.

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If it's denied, you have judicial review.

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If remand, you have the opportunity to add more evidence to the record.

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All three of those outcomes do not share anything in common.

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There are no similarities between the three.

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And it seems that

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quite clear that it would be manifestly different between three outcomes that share no similarities.

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The government's position with regard to Mr. Williams is inherently weak for one good reason.

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They've never dealt fairly with Mr. Williams.

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Mr. Williams is a real person.

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He is a U S citizen.

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He's a U S army veteran.

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He served honorably.

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He is a hundred percent service connected for PTSD, not from trauma from the enemy, not from combat, but solely from the pure racism of his commanders.

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the commanders in his United States Army drove him to a mental breakdown.

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And the government knows that he's 100% service connected because of it.

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For them to say that in 1982, a year or two, three years after he's leaving service, that there's just nothing wrong with him at this point, yet

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in 2001, they service connect him and relate it specifically to the racist treatment he suffered while in service is infuriated.

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Mr. Williams deserved to have his claim adjudicated properly.

[00:17:19] Speaker 03:
It was not.

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Our Q Challenge did not make a difference one way or another whether he got an examination.

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It doesn't matter whether they gave it to him or not.

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We know they failed in giving the exam.

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Why did they fail?

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They thought they had an examination on file.

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The regulations said they have to have an exam.

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They said, we have an exam denied.

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The VA is required to follow their own regulations.

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And if they had not met their own laws, then they were required to remand the case.

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They did not.

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And it amounts to a clear and unmistakable error.

[00:18:24] Speaker 03:
Thank you.

[00:18:26] Speaker 01:
I thank both counsel for their argument.

[00:18:28] Speaker 01:
The case is taken under submission.