[00:00:02] Speaker 02:
The next argued case is number 181281, Cardini against the Secretary of Veterans Affairs, Mr. Carpenter.

[00:00:12] Speaker 00:
Thank you very much, Your Honor.

[00:00:13] Speaker 00:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Frank Cardini.

[00:00:17] Speaker 00:
This case is controlled by this Court's decision in O'Brien, which affirmed the presidential opinion of the VA General Counsel

[00:00:25] Speaker 00:
which correctly interpreted the meaning of the provisions of 3.340C as it relates to what is barred from entitlement to service-connected compensation and what is not.

[00:00:39] Speaker 00:
Specifically, that a congenital defect is not compensable because that defect is static and does not change.

[00:00:48] Speaker 00:
The General Counsel also correctly distinguished that a congenital disease

[00:00:52] Speaker 00:
is distinguishable and is compensable because that disease is capable of improvement as well as worsening.

[00:01:00] Speaker 00:
That's precisely what we have in this case and what was incorrectly construed and understood by the Veterans Court to be a non-valid allegation of clear and unmistakable error, which comes within this court's rule of law jurisdiction because that was the rule of law that was set out by the Veterans Court

[00:01:22] Speaker 00:
in its decision in Russell v. Principi.

[00:01:24] Speaker 00:
Mr. Cordini presented a prima facie legal claim of clear and unmistakable error when he said as a pro se veteran that the condition that he was concluded to have had was misdiagnosed and we do not mean for that term should not be understood in the clinical sense but misunderstood to be a defect rather than a disease.

[00:01:52] Speaker 00:
And what the VA did in its 1971 decision was to simply accept the fact that there was a reference to a nasal deformity that permitted them to find that this was a constitutional or developmental abnormality, which was not compensable.

[00:02:09] Speaker 00:
That was a clear and unmistakable error of law.

[00:02:12] Speaker 00:
It was contrary to the VA General Counsel's opinion.

[00:02:16] Speaker 00:
The VA General Counsel's opinion was binding upon the board at the time in which the board

[00:02:22] Speaker 00:
reviewed Mr. Cordini's request for revision of that 1971 decision.

[00:02:29] Speaker 03:
Can you define what the error of law here is?

[00:02:33] Speaker 00:
The error of law is finding that, as the Veterans Court said, that this was a mere disagreement with the facts.

[00:02:43] Speaker 00:
This was not a mere disagreement with facts.

[00:02:45] Speaker 00:
This was a challenge to the legal question of whether or not what Mr. Cordini suffered from

[00:02:51] Speaker 00:
in terms of a nasal deformity was a congenital defect or a congenital disease and the board did not make the analysis that is required by the VA General Counsel's opinion that they must determine whether or not that is a disease or a defect that has a congenital basis.

[00:03:12] Speaker 00:
If it is a congenital disease then it is entitled to compensation.

[00:03:16] Speaker 00:
If it is a congenital defect then it is not entitled to compensation

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under that regulation.

[00:03:22] Speaker 00:
And this court in O'Brien made that clear that the VA general counsel had correctly interpreted that VA regulation.

[00:03:32] Speaker 00:
This VA regulation does not have a statutory predicate.

[00:03:36] Speaker 00:
This is a regulation that was written by the secretary to exclude certain conditions, which are identified in part as being a congenital defect.

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And the congenital defect was distinguished

[00:03:50] Speaker 00:
by the VA General Counsel from a congenital disease.

[00:03:54] Speaker 00:
And as a matter of law, Mr. Cordini was entitled to challenge whether or not the VA in its 1971 decision correctly determined that he was not entitled as a matter of law to compensation for his nasal deformity.

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He was entitled to that compensation under this court's decision in O'Brien.

[00:04:15] Speaker 00:
The Veterans Court made a clear error of law

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when it concluded that Mr. Cordini was merely expressing a disagreement with the way in which the evidence was weighed in 1971, and that that may not, as a matter of law, constitute a clear and unmistakable error.

[00:04:33] Speaker 00:
What Mr. Cordini presented was, in fact, a question of law, whether or not his condition was a defect under law or a disease under law.

[00:04:45] Speaker 00:
And that is controlled by this court's decision in O'Brien

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and control by the VA General Counsel's opinion which the board was bound by statute to have followed and they chose not to.

[00:04:57] Speaker 00:
The Veterans Court was incorrect when it made the determination that this matter could be affirmed on the basis that the allegation made by Mr. Cordini in his allegation of clear and unmistakable error was not a sufficient legal basis for a clear and unmistakable error revision

[00:05:16] Speaker 00:
because it was a mere disagreement with how the facts were weighed.

[00:05:23] Speaker 00:
I'll reserve the balance of my time if there's no further questions from the panel.

[00:05:27] Speaker 02:
Let's hear from the other side.

[00:05:33] Speaker 02:
Thank you.

[00:05:35] Speaker 01:
Ms.

[00:05:35] Speaker 01:
Cole.

[00:05:38] Speaker 01:
Thank you.

[00:05:38] Speaker 01:
May it please the court?

[00:05:40] Speaker 01:
This court should dismiss Mr. Corradini's appeal for lack of jurisdiction because he challenges

[00:05:45] Speaker 01:
the application of the rule of law established in Russell for Q claims to the facts of his case, which is a matter outside the court's jurisdiction.

[00:05:53] Speaker 01:
Alternatively, the court should affirm the Veterans Court's holding, affirming the dial of Mr. Cordini's Q claim.

[00:06:00] Speaker 01:
Now, with respect to jurisdiction, this court has made clear in the Wilsey case that although the court does have jurisdiction to consider whether Russell was applied to the question of whether there is Q,

[00:06:12] Speaker 01:
the court made very clear that it does not have jurisdiction to consider whether the application of Russell to the facts of the case was correct.

[00:06:20] Speaker 01:
And that's what Mr. Corradini challenges here.

[00:06:23] Speaker 01:
Now, in Wilsey, the court did take jurisdiction because there, although the Veterans Court gave passing mention to the Russell standard, it really didn't apply the three-step test to the facts of this case.

[00:06:36] Speaker 01:
It just, in a summary fashion, denied the cue claim.

[00:06:41] Speaker 01:
By contrast,

[00:06:42] Speaker 01:
Here the Veterans Court went through the Russell analysis.

[00:06:45] Speaker 01:
Mr. Corradini alleged Q based on two errors of law.

[00:06:49] Speaker 01:
He claims that the regulation governing congenital defects and this statute governing the presumption of soundness was incorrectly applied.

[00:06:57] Speaker 01:
And the court analyzed that.

[00:06:58] Speaker 01:
It found that the board fully considered the evidence and concluded that the regional office denied the claim because it appeared to be congenital defect.

[00:07:07] Speaker 01:
And any disagreement with how the evidence was weighed was not the basis for a Q claim.

[00:07:14] Speaker 05:
Can I ask you this?

[00:07:15] Speaker 05:
So sometimes we, in our continuing effort to draw this line between what might be a question of law and what might be either a factual question or an application, I think we ask the question, is there some essentially intermediate interpretive principle that

[00:07:35] Speaker 05:
really ought to have been paid attention to but wasn't in the Veterans Court.

[00:07:41] Speaker 05:
And so that idea, as applied here, would be that something like a congenital defect is a condition that, and I'll finish that sentence, whereas a congenital disease is a condition that something else, and I think thought I heard Mr. Carpenter talk about that in terms of whether it is

[00:08:04] Speaker 05:
subject to change over time from conditions in the world.

[00:08:10] Speaker 05:
But is there something like that going on here or not?

[00:08:14] Speaker 01:
No.

[00:08:15] Speaker 01:
So Mr. Corradini, the question he raises, whether or not the facts support it being a congenital defect versus a congenital disease, that's your standard application of law to facts.

[00:08:26] Speaker 01:
And the court would lack jurisdiction.

[00:08:29] Speaker 01:
The only way the court could have jurisdiction would be to consider whether the rule of law for analyzing Q claims established in Russell was not applied.

[00:08:37] Speaker 01:
Not whether it was incorrectly applied to the facts, but whether it was simply not applied.

[00:08:42] Speaker 01:
And here, the Veterans Court went through the three steps.

[00:08:45] Speaker 05:
Is there some rule of law not the kind that's stated in Russell itself, but rather in the interpretation of the defect, congenital defect regulation?

[00:08:58] Speaker 05:
So if, for example, the regulation had said congenital defect and there had been an interpretation by the general counsel or something that said that requires consideration of whether this is the kind of condition that would change over time.

[00:09:10] Speaker 05:
And I'm not saying if there had been something like that and that then he could come in, Mr. Carpenter could come in and say, um, the veterans court never dealt with that question.

[00:09:23] Speaker 05:
So it's not, it wasn't in fact applying.

[00:09:26] Speaker 05:
the correct legal standard.

[00:09:28] Speaker 05:
Is there something like that going on in this case, or is there not essentially any asserted interpretation of the defect regulation that was disregarded?

[00:09:41] Speaker 01:
Right.

[00:09:41] Speaker 01:
There is no interpretation here of 38 CFR 3.303C.

[00:09:46] Speaker 01:
He relies on the O'Brien case.

[00:09:48] Speaker 01:
In the O'Brien case, the court did note, and this is based on decisions of the Office of General Counsel within the VA that

[00:09:55] Speaker 01:
there is a distinction between congenital defects and congenital diseases.

[00:09:59] Speaker 01:
And whereas defects tend to be relatively stable over time, diseases can progress.

[00:10:05] Speaker 01:
So they can get better or they can get worse.

[00:10:07] Speaker 01:
And O'Brien stands for the proposition that the presumption of soundness can apply to congenital diseases.

[00:10:15] Speaker 01:
But this court has not determined that that's a rule of law.

[00:10:20] Speaker 01:
Again, in 2002,

[00:10:24] Speaker 01:
The court's jurisdiction number 7292A was amended such that now the court has jurisdiction based on the rule of law.

[00:10:35] Speaker 01:
But again, we'll see the court specifically found that Russell provides a rule of law for Q such that it did have jurisdiction.

[00:10:44] Speaker 01:
This court has never found, not in the O'Brien case either, that there is a specific rule of law

[00:10:52] Speaker 01:
with respect or a certain test in determining whether something is a congenital defect versus a disease.

[00:10:59] Speaker 01:
There's simply the regulation that states that congenital defects are not disabilities under the law, but there's no rule of law for determining when something is a congenital defect versus a congenital disease, such that the court would have jurisdiction to consider that.

[00:11:18] Speaker 01:
That's just a challenge to the application of the law to the facts.

[00:11:21] Speaker 01:
And so the court here lacks jurisdiction.

[00:11:24] Speaker 01:
Now, it's important to note that the regional office decision that's being challenged is pre-1990.

[00:11:30] Speaker 01:
And per the Natalie case, which is actually quite factually similar, this court has found that the regional office does not need to articulate the distinction between a defect and disease.

[00:11:42] Speaker 01:
And finding that it's a disability under law

[00:11:44] Speaker 01:
the court will presume that the regional office applied the correct standard and analyzed the facts correctly.

[00:11:50] Speaker 01:
And that's precisely what happened in this case.

[00:11:53] Speaker 01:
If you look at the decision from 1971, there was a doctor on the board there.

[00:11:58] Speaker 01:
He looked at the evidence of record, which noted that there's a congenital deformity.

[00:12:03] Speaker 01:
That was from the operation in 1970 that existed prior to service.

[00:12:07] Speaker 01:
And he found that to be a congenital defect.

[00:12:13] Speaker 01:
Certainly, reasonable minds could differ as to whether or not that suggests a congenital disease versus congenital defect, but that's not the standard for Q. The standard needs to be that the error is undebatable and that no reasonable adjudicator could weigh the evidence the way the adjudicator did.

[00:12:28] Speaker 01:
And the error here is not undebatable.

[00:12:33] Speaker 01:
As I noted here, there's no rule of law.

[00:12:37] Speaker 01:
The court went through the steps in Russell.

[00:12:39] Speaker 01:
He noted that there was no error of law.

[00:12:41] Speaker 01:
It applied the law to the facts as they existed at the time.

[00:12:44] Speaker 01:
And it found that any error here would be harmless.

[00:12:47] Speaker 01:
So unlike in Wilsey, where the court did not go through that analysis, here the court did.

[00:12:52] Speaker 01:
And so it lacks jurisdiction.

[00:12:54] Speaker 01:
And as I noted, to the extent the court finds that there is jurisdiction, the court should affirm the decision of the Veterans Court.

[00:13:03] Speaker 01:
Again, the standard is not whether reasonable minds could differ and find that it is a disease versus a defect.

[00:13:09] Speaker 01:
The standard is whether any error is undebatable and it's not here.

[00:13:13] Speaker 01:
Now, if the court doesn't have any further questions, I respectfully request that... Okay, thank you, Ms.

[00:13:19] Speaker 02:
Goh.

[00:13:20] Speaker 01:
Okay, excuse me.

[00:13:21] Speaker 01:
Thank you.

[00:13:24] Speaker 02:
Ms.

[00:13:24] Speaker 02:
Carpenter, tell us exactly the rule of law you would like us to pronounce.

[00:13:32] Speaker 00:
The rule of law is articulated in the Russell case specifically that in order to revise on the basis of an allegation of clear and unmistakable error, it is necessary to conform the true state of the facts or the law that existed at the time of the original adjudication.

[00:13:54] Speaker 00:
That did not happen here.

[00:13:56] Speaker 00:
Contrary to what was just suggested by the government,

[00:13:58] Speaker 00:
that there was no statement by a doctor on the rating board.

[00:14:02] Speaker 00:
There was, in fact, only a statement that there was a nasal deformity.

[00:14:08] Speaker 00:
There was no characterization that there was a congenital deformity, and that is what was required by the law that existed at the time.

[00:14:18] Speaker 00:
The law as existed at the time was interpreted by the VA General Counsel to... What about the clinical record?

[00:14:24] Speaker 00:
after surgery didn't say congenital no it did not your honor it's at a nasal deformity if you'll find that in the record at appendix 34 I guess I'm looking at a 69 69 sorry the clinical record post op 1970

[00:14:55] Speaker 00:
That was a determination.

[00:14:56] Speaker 04:
Hormone comma, nasal comma, congenital period, EPTS, which I think everybody agrees stands for Existed Prior to Service.

[00:15:07] Speaker 00:
This was a document that was a clinical record that was created by the medical board post surgery.

[00:15:14] Speaker 00:
This was an analysis made.

[00:15:15] Speaker 04:
I guess this is signed by the attending physician.

[00:15:19] Speaker 04:
That's what it says at the bottom, box 40, field 40.

[00:15:27] Speaker 04:
dated December 7th, 1970, which I take it was just days after the operation.

[00:15:38] Speaker 00:
Trying to find a date.

[00:15:40] Speaker 00:
I don't see it.

[00:15:41] Speaker 04:
The operation took place December 1, 1970.

[00:15:44] Speaker 00:
That's correct.

[00:15:45] Speaker 04:
And then here's the post-op clinical record signed by the attending physician a few days later.

[00:16:03] Speaker 00:
Okay, assuming that that is true, Your Honor, that determination is not a medical determination, but a legal determination under the provisions of the VA General Counsel's opinion.

[00:16:18] Speaker 00:
That the characterization of something as being congenital requires a determination as to whether or not it is a congenital defect or it is a congenital deformity or a disease.

[00:16:31] Speaker 00:
If it is a congenital disease, then it is entitled to compensation.

[00:16:36] Speaker 00:
And that was the error of law that was made in the allegation that was made by Mr. Corradini in 2010 when he made his request for revision.

[00:16:48] Speaker 00:
But if I could continue in relationship to the assertion vis-a-vis this court's decision in Natalie, the circumstances here are not at all comparable

[00:17:00] Speaker 00:
for this court's decision in Natalie.

[00:17:02] Speaker 00:
Mr. Corradini did not, as Mr. Natalie did in his case, allege that the rating decision had not explained its reasons or basis.

[00:17:14] Speaker 00:
That was the allegation made in Natalie.

[00:17:16] Speaker 00:
That's not the allegation made here.

[00:17:18] Speaker 00:
The allegation made here was he didn't have a defect, he had a disease.

[00:17:25] Speaker 00:
The disease was compensable and he was entitled as a matter of law

[00:17:29] Speaker 00:
to compensation because he did not have a demonstrated defect.

[00:17:34] Speaker 00:
And that medical report referred to you by Judge Shin is not dispositive of the issue under the VA General Counsel's opinion.

[00:17:43] Speaker 00:
And that VA General Counsel's opinion is retroactive in applying to how the analysis should have been made in 1971 and was not made.

[00:17:54] Speaker 00:
The critical difference between what was presented by the government in its argument

[00:17:58] Speaker 00:
And what is presented by Mr. Corradini and was incorrectly understood by the Veterans Court is that there is a difference at law between the allegation of clear and unmistakable error made in the first instance by Mr. Corradini and the averment of error made by his counsel at the Veterans Court.

[00:18:22] Speaker 00:
That averment of error is to a clear error of law made by the board.

[00:18:27] Speaker 00:
and the clear error of law made by the board was the failure to consider whether the correct facts were before the VA in 1971 based upon the VA General Counsel's opinion that the board was bound by.

[00:18:44] Speaker 00:
What the Veterans Court did was to leap back to the underlying allegation rather than to look to the averment of error that was made in the board's decision.

[00:18:55] Speaker 00:
The board, or excuse me, the Veterans Court has clearly stated in a presidential opinion, Archer v. Principi, that the Veterans Court does not review de novo the underlying allegations of Q. And that's precisely what the Veterans Court did in this case, which is contrary to the rule of law established in Russell.

[00:19:20] Speaker 00:
Excuse me unless there's further questions from the court.

[00:19:24] Speaker 00:
I will.

[00:19:26] Speaker 00:
Thank you very much.

[00:19:27] Speaker 02:
Thank you both.

[00:19:28] Speaker 02:
The case is taken under submission.