[00:00:00] Speaker 03:
Next argued case is number 17, 1720, Young against the Secretary of Veterans Affairs, Mr. Samaras.

[00:00:13] Speaker 03:
When you're ready.

[00:00:15] Speaker 00:
OK.

[00:00:15] Speaker 00:
Good morning, your honors.

[00:00:16] Speaker 00:
May it please the court.

[00:00:18] Speaker 00:
My name is Mike Samaras, and I'm representing the veteran appellant in this case, Mr. Alan Young.

[00:00:25] Speaker 00:
We believe that this case comes down to essentially three issues.

[00:00:30] Speaker 00:
The first is that both the board and the court below mistakenly interpreted the presumption of regularity as a presumption of correctness.

[00:00:38] Speaker 00:
The second is that the VA failed to meet its duty to assist when the VA examiner suggested an alternative cause to Mr. Young's traumatic aneurysm.

[00:00:48] Speaker 00:
And the third is that the VA also failed to meet its duty to assist by failing to consider Mr. Young's implicit challenge of the examiner's credentials.

[00:00:57] Speaker 00:
This served to deprive Mr. Young of his due process in his ability to challenge his reviewer.

[00:01:03] Speaker 04:
Was that issue raised at the board level?

[00:01:08] Speaker 00:
Your Honor, we maintain that it was raised.

[00:01:13] Speaker 00:
Mr. Young challenged both.

[00:01:15] Speaker 00:
Mr. Young explicitly challenged the content of the examiner's report when he said that.

[00:01:23] Speaker 04:
But that's not the competence of the examiner.

[00:01:26] Speaker 00:
correct.

[00:01:26] Speaker 00:
He also implicitly challenged the competence of the examiner when he said, I am referring to issues that I may not have discussed but which were reasonably raised by the evidence in my VA claims file or in the VA's possession that should have been inferred by the regional office.

[00:01:45] Speaker 00:
Now the VA's duty to assist and frankly the entire spirit of the VA statute policies require the process to be

[00:01:56] Speaker 00:
uniquely proclaim it.

[00:01:58] Speaker 00:
And we believe that that duty to assist should have queued the VA to interpret that as a challenge to the examiner's credentials.

[00:02:14] Speaker 00:
Addressing the first issue that I mentioned, we're not going to be asking the court today to make any factual issues.

[00:02:22] Speaker 00:
However, in order to get to the legal issues, we need to build to the context of what happened below.

[00:02:30] Speaker 00:
So this case essentially came down to a battle of expert opinions.

[00:02:36] Speaker 00:
Three of those opinions were provided by Mr. Young's thoracic surgeons, who were familiar with both him and with his condition.

[00:02:45] Speaker 00:
Each of those opinions

[00:02:50] Speaker 00:
found that Mr. Young's aneurysm was a result of his 1971 motor vehicle accident.

[00:02:56] Speaker 00:
The VA examiner's opinion, on the other hand.

[00:02:58] Speaker 04:
That was nine years afterwards.

[00:03:01] Speaker 00:
Correct, Your Honor.

[00:03:03] Speaker 00:
It was.

[00:03:04] Speaker 00:
The thing with aneurysms is, especially aortic aneurysms, is people don't know that they have them until there's a rupture.

[00:03:14] Speaker 04:
But isn't this a question of fact or application of law to fact beyond our jurisdiction?

[00:03:19] Speaker 00:
That is, Your Honor.

[00:03:23] Speaker 00:
However, I'm just trying to build the context to where exactly the legal error occurred, if you'd indulge me.

[00:03:34] Speaker 00:
So the board found that the surgeon's opinion had no rationale, but the VA examiner's opinion, while it wasn't actually stated, had inherent logic to support the conclusion.

[00:03:46] Speaker 00:
Now it was never made clear either by the board or the court below why the privilege of having inherent logic didn't also apply to Mr. Young's opinions, but it's clear here that the examiner's opinion didn't actually have supporting rationale.

[00:04:04] Speaker 00:
The fact that the board felt the need to read this inherent logic into the opinion said on its face that it was not actually in the examiner's opinion itself.

[00:04:16] Speaker 00:
Based on the context here, well, before I get to that, both the board and the court supported their decisions by citing to the Nieves factors and to the presumption of regularity.

[00:04:32] Speaker 00:
Now, as I said, it's clear that there was no supporting rationale in the examiner's opinion.

[00:04:39] Speaker 00:
Yet the board, yet based on the context here,

[00:04:43] Speaker 00:
The VA used the liberties afforded by the presumption of regularity to presuppose that the examiner was correct, and that that opinion alone should control.

[00:04:54] Speaker 00:
Now, if the presumption of regularity went no further than it was supposed to, the examiner's opinion would have been held on equal ground as the rest of the opinions, and then the benefit of the doubt would have gone to Mr. Young.

[00:05:09] Speaker 00:
Now, I mention that only to show that this wasn't

[00:05:12] Speaker 00:
This was not harmless error.

[00:05:14] Speaker 00:
This was important and quite central to the case.

[00:05:19] Speaker 00:
Furthermore, as a related sub-issue, the presumption of regularity doesn't extend to the board.

[00:05:28] Speaker 00:
It was entirely inappropriate for the board, which didn't have any medical professionals in its midst, to weigh in on what they saw as unstated medical rationale of why

[00:05:43] Speaker 00:
of why or why that may have been obvious.

[00:05:49] Speaker 00:
As to our second issue today, the discussion of the examiner's opinion brings us to our second point.

[00:05:56] Speaker 00:
In the examiner's very short opinion, she says essentially two things.

[00:06:02] Speaker 00:
The first was that the aneurysm was traumatic in origin, and the second was that the aneurysm was not a result of the 1971 accident.

[00:06:11] Speaker 00:
If we run with that logic, the examiner is inherently saying that there was an additional source of trauma in Mr. Young's past.

[00:06:21] Speaker 00:
Now, while the VA does not have any obligation to pinpoint the source of a medical condition, the duty to assist does compel the VA to take reasonable measures to cure any known deficiencies in the record.

[00:06:38] Speaker 00:
And that was the ruling in the Green v. Lewinsky case.

[00:06:43] Speaker 00:
The examiner's opinion threw the completeness of the record into doubt and suggested that there must have been another traumatic event that had not yet made it into the record.

[00:06:55] Speaker 03:
Would you talk about the duty to assist?

[00:06:58] Speaker 03:
It doesn't look as if there was an absence of assistance.

[00:07:03] Speaker 03:
Is your position that if there was it, it seems

[00:07:07] Speaker 03:
no matter without drawing our own conclusions, that it's not impossible that there was a connection.

[00:07:16] Speaker 03:
Are you from the duty to assist asking that or saying that you're entitled to an inference of service connection when the connection is not impossible despite wherever the board thought the weight of medical evidence came out?

[00:07:35] Speaker 00:
While we do generally agree with that, Your Honor, because, again, the VA's procedures are supposed to be as proclimate as possible, what we are saying is that even if the VA had met their duty to assist in the initial part of the case, after the examiner's opinion, which identified a deficiency in the record, they did not meet their duty to assist.

[00:08:05] Speaker 03:
So once again... I'm trying to understand what you mean by duty to assist.

[00:08:10] Speaker 03:
There certainly were a lot of medical examinations.

[00:08:14] Speaker 03:
What assistance should have been provided that you say was absent?

[00:08:20] Speaker 00:
Well, the examiner's... Well, Your Honor, the examiner's opinion identified deficiency in the record.

[00:08:27] Speaker 00:
They needed to make reasonable measures to try to cure that deficiency.

[00:08:35] Speaker 00:
At the very least, they could have contacted Mr. Young to ask him about it, but that contact was never made.

[00:08:44] Speaker 00:
I would prefer to refrain to speculate as to what else they could have done, but they could have looked into the file, looked to see if there are any gaps in the records, and then investigated into the records in that way.

[00:08:58] Speaker 04:
Well, the gap in the evidence, the gap in the file was the lack of evidence.

[00:09:03] Speaker 04:
that the veteran didn't present.

[00:09:06] Speaker 00:
Well, again, Your Honor.

[00:09:08] Speaker 04:
You're asking the duty of assistance to mean generating evidence to show entitlement when there wasn't any.

[00:09:20] Speaker 00:
Well, Your Honor, the absence of evidence is not the evidence of absence.

[00:09:25] Speaker 00:
This again goes toward the board's presumption that the examiner's opinion was correct.

[00:09:33] Speaker 00:
What normally happens in aortic aneurysms is they don't show themselves until it ruptures.

[00:09:40] Speaker 00:
And by that point, it's usually too late.

[00:09:42] Speaker 00:
And patients with aortic aneurysms are usually asymptomatic until that time occurs.

[00:09:50] Speaker 00:
Now, Mr. Young showed that the medical literature below shows that that's possible.

[00:09:58] Speaker 00:
And he had the three surgeons who also agreed with him on that point.

[00:10:03] Speaker 03:
Well, that's really what I'm trying to explore.

[00:10:06] Speaker 03:
It showed it was possible.

[00:10:09] Speaker 03:
Yes, Your Honor.

[00:10:10] Speaker 03:
And you say, but what assistance could have been provided there is silence in that first nine years.

[00:10:18] Speaker 03:
What could have been done that wasn't done?

[00:10:20] Speaker 00:
Oh, Your Honor, I think that, again, once the examiner

[00:10:33] Speaker 00:
Once the examiner identified this new deficiency, something should have been done.

[00:10:40] Speaker 00:
I don't think that the court actually needs to come to the issue today of what exactly should have been done because nothing was actually done.

[00:10:49] Speaker 03:
You're asking us to say that the duty to assist was violated.

[00:10:53] Speaker 03:
That's why I'm trying to understand what assistance was conceivably available.

[00:10:59] Speaker 00:
Your Honor, I believe that at a minimum they should have asked Mr. Young about the deficiency.

[00:11:05] Speaker 00:
And I believe that they should have re-looked at the records to see if there were any other sources of trauma that could have traced his, that his condition could be traced back to.

[00:11:21] Speaker 00:
But neither of those things were done in this case.

[00:11:25] Speaker 03:
Okay.

[00:11:26] Speaker 03:
Let's hear from the Secretariat.

[00:11:29] Speaker 03:
Come back to this.

[00:11:30] Speaker 03:
You've shifted for your rebuttal time.

[00:11:33] Speaker 03:
Is that how you've divided the argument?

[00:11:36] Speaker 03:
Yes.

[00:11:36] Speaker 03:
Okay.

[00:11:36] Speaker 00:
Thank you.

[00:11:48] Speaker 03:
Mr. Hellman.

[00:11:53] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:11:56] Speaker 01:
The main issue in this case, as the court, I believe, is recognizing, is a classic weighing of the evidence over which this court does not have jurisdiction.

[00:12:04] Speaker 01:
The board weighed the five medical opinions here, one from the VA medical examiner and four conclusory statements that Mr. Young presented.

[00:12:15] Speaker 03:
Well, to the extent that there's a question of law before us, considering that I think everybody agrees it's not

[00:12:24] Speaker 03:
It's unlikely but not impossible that there was service connection.

[00:12:30] Speaker 03:
If it's not impossible, should that end the inquiry?

[00:12:36] Speaker 01:
No, Your Honor.

[00:12:37] Speaker 01:
The burden under 38 USC 5107 is on the veteran to present and support a claim for benefits.

[00:12:48] Speaker 01:
Here, there is nothing to suggest that the evidence put forth by Mr. Young

[00:12:52] Speaker 01:
was an equipoise even with the medical exam by the VA, triggering the benefit of the Dow doctrine.

[00:13:01] Speaker 01:
Mere possibility is not enough under the statute.

[00:13:06] Speaker 03:
Why not?

[00:13:07] Speaker 03:
In the veteran-friendly position that is required to be imposed.

[00:13:18] Speaker 01:
Well, for one reason, Your Honor, it would require the VA to affirmatively rule out any possible other cause of... to show that... to affirmatively find another cause to show that the aneurysm was not caused by the... They didn't find it was impossible.

[00:13:36] Speaker 03:
They found it was unlikely.

[00:13:38] Speaker 01:
They found it was less likely than not, yes, Your Honor, and that's the... They found it hadn't been proved because there were no symptoms.

[00:13:48] Speaker 03:
in that period, but there were several physicians who essentially said that that was not unusual.

[00:14:00] Speaker 01:
Your Honor, the physician's statements were mere conclusory statements saying that there was a car accident in 1971.

[00:14:09] Speaker 01:
There's an aneurysm.

[00:14:11] Speaker 01:
And I believe three out of the four physicians did not even refer to it as a traumatic aneurysm.

[00:14:17] Speaker 01:
They just referred to it as an aneurysm.

[00:14:18] Speaker 01:
And then each of the private medical physicians said those two events are linked without offering any explanation or analysis.

[00:14:26] Speaker 03:
Well, but how could they?

[00:14:28] Speaker 03:
That's really what concerns me.

[00:14:30] Speaker 03:
How could they?

[00:14:31] Speaker 03:
Here's a young man, serious accident, nine years later, serious accident, including chest injury.

[00:14:39] Speaker 03:
And so these physicians,

[00:14:40] Speaker 03:
come up with credible speculation that it's not impossible?

[00:14:47] Speaker 01:
Your Honor, two points on that.

[00:14:50] Speaker 01:
One, there is evidence in the records submitted by Mr. Young himself, treatise evidence suggesting that aneurysms due to trauma occur almost instantaneously.

[00:15:02] Speaker 01:
There is treatise evidence suggesting that between 70% and 90%

[00:15:11] Speaker 01:
blunt aortic injury sufferers die at the scene and that another treatise suggested that aortic rupture secondary to trauma is lethal and only 1% to 2% survive.

[00:15:22] Speaker 01:
That was evidence actually put in by Mr. Young that the board here took notice of.

[00:15:28] Speaker 01:
The physicians, I think, should have provided more than just their say so to say that the trauma caused

[00:15:39] Speaker 01:
incurred in the car accident caused Mr. Young's condition.

[00:15:43] Speaker 01:
There is nothing aside from just the conclusory statement offered by any of those.

[00:15:48] Speaker 01:
And it does not account for the eight or nine year gap in symptomatology.

[00:15:53] Speaker 01:
There was no, Mr. Young had had subsequent medical exams, including one, I believe just a month before that found that his heart and other structures in that area were unremarkable.

[00:16:04] Speaker 01:
So the, again, the burden here under 38

[00:16:09] Speaker 01:
USC 5107 is on the veteran to show an entitlement to benefits.

[00:16:16] Speaker 01:
This record is not enough to overcome that burden, even if this court were to review the factual determinations that our position is or not within the court's jurisdiction.

[00:16:29] Speaker 01:
I'm not sure if I answered your honor's question.

[00:16:31] Speaker 03:
Well, this is the aspect that's troubling.

[00:16:35] Speaker 03:
The courts are obliged to appreciate

[00:16:39] Speaker 03:
that there is a veteran's friendly, that doubt should be resolved in favor of the veteran.

[00:16:47] Speaker 03:
And according to these objectively reasonable, credible physicians, it's not impossible.

[00:16:59] Speaker 03:
Therefore they had a certain amount of doubt, perhaps a very small amount, but nonetheless they said it wasn't impossible.

[00:17:06] Speaker 03:
So where do we draw the line?

[00:17:10] Speaker 01:
in your honor, mere possibility is not even in a pro veteran friendly regime such as this one, the veterans still has to show that in his case, it was more likely than not or as likely as not.

[00:17:29] Speaker 01:
And then the benefit of the doubt doctrine applies.

[00:17:31] Speaker 01:
And that is a more favorable standard certainly than the typical

[00:17:36] Speaker 01:
the standard for civil litigation where the preponderance is more likely than not, there is no benefit of that rule here.

[00:17:42] Speaker 01:
Even if Mr. Young was able to show that these two options were equally likely, he would get the benefit of the doubt.

[00:17:49] Speaker 01:
But that was not the case, the record below.

[00:17:52] Speaker 01:
So I think just mere possibility is too far a standard for even in a pro-veteran statutory scheme.

[00:18:05] Speaker 01:
to apply.

[00:18:07] Speaker 01:
A mere possibility there could be any number of causes.

[00:18:10] Speaker 01:
And under 5107, the burden does fall on the veteran.

[00:18:16] Speaker 01:
I'd like to briefly touch on the point about the duty to assist.

[00:18:24] Speaker 01:
Well, first, my colleague claims that the board here made their own medical

[00:18:33] Speaker 01:
determinations, that is not what happened.

[00:18:35] Speaker 01:
The board is permitted to draw reasonable inferences.

[00:18:38] Speaker 01:
That's what the board did from the VA medical examiner's opinion.

[00:18:43] Speaker 01:
The duty to assist also was not violated here.

[00:18:48] Speaker 01:
The duty does not require the board or the VA to go out and disprove any number of theories proposed by the veteran.

[00:19:01] Speaker 01:
It applies to

[00:19:03] Speaker 01:
help the veteran develop claims that are indicated in the record here.

[00:19:07] Speaker 01:
There is nothing indicating a claim that was not developed by the board.

[00:19:13] Speaker 01:
And lastly, Mr. Young's disagreement here with the examiner's opinion is not the same thing as disagreement or objection to the examiner's competence.

[00:19:24] Speaker 01:
If this court has no further questions, I'm happy to yield the remainder of my time.

[00:19:30] Speaker 03:
Any questions?

[00:19:31] Speaker 03:
OK.

[00:19:32] Speaker 03:
Thank you, Mr. Hillman.

[00:19:34] Speaker 01:
Thank you.

[00:19:42] Speaker 03:
Mr. Strayer.

[00:19:43] Speaker 02:
Judge Newman.

[00:19:44] Speaker 02:
Your Honor.

[00:19:49] Speaker 02:
I have to say that we agree with you, Judge Newman.

[00:19:54] Speaker 02:
The opinions in this case were not characterized properly.

[00:20:02] Speaker 02:
The three medical opinions here were not, they were conclusory in the view of the board, but they were definitely, they were most definite in their opinion.

[00:20:16] Speaker 02:
This is, one of them said, Dr. Daniel said, I reviewed his old records, including those of the December 23, 1971, when he was in a motor vehicle accident, taking into account the time course of these events.

[00:20:26] Speaker 02:
It is my opinion that his original aneurysm was definitely the result of the motor vehicle accident.

[00:20:32] Speaker 02:
Now, the opinions didn't contain the specific and detailed rationale of why someone with an aoral aneurysm might have symptoms that would show up years later.

[00:20:40] Speaker 02:
And that was found to be deficient by the... But all of this is beyond our jurisdiction.

[00:20:46] Speaker 04:
Yes, but only... In the way that the examiner, the examiner's report, to weigh that against Dr. Daniels and the other two physicians.

[00:20:56] Speaker 02:
Right, that is true.

[00:20:57] Speaker 02:
It is that weighing the evidence is beyond your jurisdiction, of the jurisdiction of the court.

[00:21:01] Speaker 02:
However, acknowledging that there was the opinion, and that the opinions were conclusory, and that the examiner's opinion was equally conclusory, that implies that there was a duty to apply an equal playing field to Mr. Young.

[00:21:20] Speaker 02:
The examiner's opinion said that there was a traumatic event.

[00:21:25] Speaker 02:
There was evidence presented that there was this terrible trauma that happened to Mr. Young.

[00:21:31] Speaker 02:
And usually, as my colleague said, the usual outcome is that the people who have these aneurysms die at the scene, or they die a short time later when the aneurysm bursts.

[00:21:41] Speaker 02:
A small percentage of them actually survive a long time.

[00:21:44] Speaker 02:
And there is, Mr. Young presented his treatise evidence that showed there were survivors who developed these conditions later on.

[00:21:53] Speaker 02:
There's nothing on the other side, except the examiner saying there must have been another traumatic

[00:22:00] Speaker 02:
event that caused the aortic aneurysm, but that's sheer speculation.

[00:22:05] Speaker 02:
Now, at that point, the duty to assist should have kicked in and it should have, the Veterans Court should have, I'm sorry, the VA should have at least have gone back to Mr. Young and said, you want to tell us how this could have happened.

[00:22:23] Speaker 02:
There's something, as Judge Newman said, these are

[00:22:26] Speaker 02:
This is the unique statutory framework that's supposed to be very pro-claiming.

[00:22:31] Speaker 02:
Everybody on all sides is supposed to be trying to help the veteran establish the claim.

[00:22:36] Speaker 02:
Instead, it seems to, in these cases, it seems to have operated as a kind of a gotcha.

[00:22:40] Speaker 02:
You didn't put in a rationale, now you can't get your benefits.

[00:22:44] Speaker 02:
It wasn't explicitly raised below, now you can't raise it here.

[00:22:49] Speaker 02:
In any other statutory framework, that's completely legitimate.

[00:22:53] Speaker 02:
That's the way it's supposed to be.

[00:22:55] Speaker 02:
But this isn't an adversarial system.

[00:22:58] Speaker 02:
We're all supposed to be here to try and help the veteran.

[00:23:01] Speaker 02:
So that is really where the argument lies with regard to the duty to assist.

[00:23:09] Speaker 02:
They should have come back to him.

[00:23:10] Speaker 02:
And they should, in the cases where not only is it not impossible, but it was the court merely found that it was less likely than not.

[00:23:21] Speaker 02:
That could be a 49% to 51% situation.

[00:23:25] Speaker 02:
In those such circumstances, there should be some effort that helps the veteran out in that regard.

[00:23:34] Speaker 03:
Okay.

[00:23:34] Speaker 03:
More questions.

[00:23:35] Speaker 03:
More questions.

[00:23:38] Speaker 02:
Okay.

[00:23:38] Speaker 02:
Okay.

[00:23:38] Speaker 02:
I think I have one minute left and I think I would just want to say that, well, actually, if the court doesn't have any other questions,

[00:23:54] Speaker 03:
I think we have the case.

[00:23:57] Speaker 03:
Thank you all.

[00:23:58] Speaker 03:
The case is taken under submission.