[00:00:00] Speaker 06:
is actually I'm going to make a motion.

[00:00:03] Speaker 06:
So I will recuse myself from its decision and hand it off to my colleagues.

[00:00:09] Speaker 06:
I assure you, please rise.

[00:00:11] Speaker 06:
I move the admission of Ashley Allman-Bolt, who's a member of the bar and is in good standing with the highest court of Georgia.

[00:00:19] Speaker 06:
I know because I swore her into that last week.

[00:00:22] Speaker 06:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:00:28] Speaker 06:
So Ashley's been my law clerk for the last year, and I have to say, getting to swear

[00:00:34] Speaker 06:
in your law clerks is probably right up there with getting to marry them.

[00:00:40] Speaker 06:
But it's a wonderful thing, and I'm happy to bring her to our bar.

[00:00:44] Speaker 06:
I have learned more about the state of Alabama in the last year than I ever thought I would, which is where Ashley is originally from.

[00:00:51] Speaker 06:
And all of the things I've learned were tremendously interesting.

[00:00:55] Speaker 06:
So thank you for bringing that into our lives.

[00:00:58] Speaker 06:
And I've really enjoyed getting to know your husband and your son

[00:01:04] Speaker 06:
You have a wonderful family.

[00:01:06] Speaker 06:
And so thank you for clerking for me.

[00:01:08] Speaker 06:
And if my colleagues agree, I'd like to have you sworn into our bar.

[00:01:12] Speaker 04:
Well, I have a question.

[00:01:12] Speaker 04:
Why is this state bird?

[00:01:16] Speaker 01:
It's actually the yellow hammer.

[00:01:18] Speaker 01:
Well, there you go.

[00:01:22] Speaker 01:
I can't object to that.

[00:01:24] Speaker 06:
I support the motion.

[00:01:26] Speaker 06:
All right.

[00:01:27] Speaker 06:
So I'm going to turn you over to Pete, Ms.

[00:01:30] Speaker 06:
Colonel Mark Steiner, to swear you in.

[00:01:33] Speaker 02:
Do you solemnly swear that you will comport yourself as an attorney and counselor of this court, uprightly and according to the law, and that you will support the Constitution of the United States of America?

[00:01:42] Speaker 02:
I do.

[00:01:42] Speaker 02:
Congratulations.

[00:01:43] Speaker 04:
Mazel tov.

[00:01:44] Speaker 06:
Congratulations.

[00:01:49] Speaker 06:
All right.

[00:01:51] Speaker 06:
Our first case for today is 2-0-1-9-1-3-1-3, Abel versus Wilkie.

[00:01:59] Speaker 06:
Mr. Carpenter, please proceed.

[00:02:01] Speaker 03:
Thank you very much, Your Honor.

[00:02:02] Speaker 03:
May it please the court?

[00:02:03] Speaker 03:
Kenneth Carpenter, bearing on behalf of Mr. William Abel.

[00:02:06] Speaker 04:
Mr. Carpenter, on pages five and six of the blue brief, I'll read it to you.

[00:02:12] Speaker 04:
You argue that willful misconduct under section 3.1, note 3, requires more than the mere operation of a motor vehicle while under the influence of alcohol and violation of state law and the UCMJ.

[00:02:27] Speaker 04:
Because willful misconduct only occurs if the operation of the motor vehicle, while under the influence of alcohol, is shown to have been the proximate cause of the injury.

[00:02:37] Speaker 04:
Under what definition of proximate cause are you operating?

[00:02:41] Speaker 03:
The plain language of the regulation, Your Honor.

[00:02:44] Speaker 03:
The regulation says that the willful misconduct will not be determinative unless there is approximate cause.

[00:02:51] Speaker 03:
of the injury, disease, or death.

[00:02:53] Speaker 03:
And how do you define proximate cause?

[00:02:56] Speaker 03:
I don't define proximate cause, Your Honor, because the Secretary did not define proximate cause.

[00:03:02] Speaker 03:
The Secretary wrote this regulation that is the Secretary's requirement for a preclusion from the entitlement to service connection.

[00:03:13] Speaker 03:
And without evidence of that, which does not exist in this record, didn't exist at the time that service connection was granted,

[00:03:20] Speaker 03:
and did not exist at the time in which the proceedings were undertaken to sever, the criteria for severance cannot be met.

[00:03:31] Speaker 03:
So you're not pausing any position on it?

[00:03:37] Speaker 03:
No, Your Honor.

[00:03:37] Speaker 03:
I don't believe that Mr. Abel has to, particularly in the context of severance.

[00:03:44] Speaker 04:
If this were a denial.

[00:03:46] Speaker 04:
We can take the standard common law definition

[00:03:50] Speaker 04:
actual cause, proximate cause, and so on?

[00:03:53] Speaker 03:
Yes, I believe you can.

[00:03:54] Speaker 03:
I don't think there's anything that prohibits that.

[00:03:57] Speaker 03:
I think that this court, in interpreting, could take the plain meaning of that, or the generally accepted legal meaning of proximate cause, as the definition.

[00:04:07] Speaker 03:
But the question in this case is, and the error by the Veterans Court was, is that the Veterans Court relied upon what it referred to as the cumulative and undebatable evidence

[00:04:19] Speaker 03:
at the time of the accident that he was operating while presumed under the influence of alcohol in violation of both state law and the UCMJ, which is by itself... Well, he had a blood test.

[00:04:31] Speaker 04:
As I recall the record, he had a blood test.

[00:04:33] Speaker 03:
That was the evidence that was added to the record that was the basis for the severance.

[00:04:38] Speaker 03:
But the problem with that, Your Honor, is that that, in and of itself, without more, does not show causation.

[00:04:45] Speaker 03:
It simply shows what was presumed.

[00:04:48] Speaker 01:
What more would you expect there to be?

[00:04:51] Speaker 01:
I mean, can you give me an example of what you're thinking of when you say that there needs to be more?

[00:04:58] Speaker 03:
Well, just to be clear, I'm not saying that.

[00:05:01] Speaker 01:
The regulation is saying that.

[00:05:02] Speaker 01:
No, but your point is that the blood alcohol test is not enough.

[00:05:05] Speaker 01:
So in thinking about this and thinking about future cases and what

[00:05:09] Speaker 01:
would be enough.

[00:05:10] Speaker 01:
I'm asking you, hypothetically, what would be enough?

[00:05:13] Speaker 03:
That there needs to be a causal connection, some medical evidence, some empirical evidence from

[00:05:22] Speaker 03:
Accident reconstruction.

[00:05:24] Speaker 04:
But there is actual evidence, because he said so, that he was driving a motor vehicle.

[00:05:30] Speaker 04:
And I think he said he ran into a telephone pole.

[00:05:32] Speaker 03:
Is that correct?

[00:05:34] Speaker 03:
I believe that's correct, Your Honor.

[00:05:36] Speaker 04:
But the reason that that happened has not been tied to the... Isn't there a presumption when he's that far, well, when he's over the legal limit, but he's way over the legal limit?

[00:05:49] Speaker 04:
I mean, he's way over the legal limit when he gets to the hospital.

[00:05:54] Speaker 03:
Well, Your Honor, but being way over the legal limit doesn't rise to the legal requirement that the Secretary himself imposed on the definition of willful misconduct.

[00:06:06] Speaker 03:
And that is that there is some causal connection with having run into the tree

[00:06:12] Speaker 03:
that relates to his being on the influence.

[00:06:15] Speaker 06:
But one of the things I don't understand is all of this sounds like a fact question to me.

[00:06:19] Speaker 06:
Mr. Carpenter, the board expressly finds on page appendix 158 that the 1981 accident was the cause of the veterans residual back and hip right

[00:06:32] Speaker 06:
disability and the accident was caused by the veterans driving while intoxicated.

[00:06:37] Speaker 06:
So the board, as far as I can tell, made two express fact findings related to causation and those are in fact fact findings and I don't get to re-review them on appeal.

[00:06:47] Speaker 06:
So I just don't see how all of this is an exercise in me dismissing this case for a lack of jurisdiction.

[00:06:53] Speaker 03:
And if this court were reviewing the board's decision, Your Honor, I believe that would be correct.

[00:06:57] Speaker 03:
But this court is not reviewing the board's decision.

[00:07:00] Speaker 03:
This court is reviewing the Veterans Court decision.

[00:07:03] Speaker 03:
And the Veterans Court decision doesn't speak to causation.

[00:07:07] Speaker 03:
It doesn't adopt that finding by the Veterans Court.

[00:07:10] Speaker 03:
It doesn't speak to causation.

[00:07:12] Speaker 03:
If the Veterans Court had said that there was causation.

[00:07:15] Speaker 06:
I don't understand.

[00:07:16] Speaker 06:
The Veterans Court, are you suggesting the Veterans Court could substitute its own fact finding for causation over the board's fact finding?

[00:07:23] Speaker 03:
No, absolutely not.

[00:07:24] Speaker 06:
Of course not.

[00:07:24] Speaker 06:
So the board found these facts.

[00:07:27] Speaker 06:
The fact that the Veterans Court doesn't mention them, I don't understand how they're any less present in this record.

[00:07:33] Speaker 03:
They are clearly present in the record.

[00:07:36] Speaker 03:
A vermin of error by Mr. Abel is that the Veterans Court relied upon a misinterpretation of this regulation by not speaking to the question of proximate cause.

[00:07:49] Speaker 03:
Is cause, as you have indicated the board made the finding, sufficient to meet the requirement of 3.1 and 3 for the proximate cause?

[00:08:05] Speaker 03:
Cause itself is not the same as the proximate cause, the direct cause, the immediate cause.

[00:08:13] Speaker 06:
I'm confused.

[00:08:13] Speaker 06:
So the board found that the accident was the direct cause of his injury and the accident

[00:08:19] Speaker 06:
was caused by his intoxication.

[00:08:21] Speaker 06:
So how is it the Veterans Court erred as a matter of law in a way that I can review under these circumstances?

[00:08:33] Speaker 06:
I'm not following your argument.

[00:08:35] Speaker 03:
Well, Your Honor, the language in 3.301C2, which was cited by the government in their brief, indicates that intoxication results

[00:08:48] Speaker 03:
must proximately and immediately result in the disability or death.

[00:08:53] Speaker 03:
Now, I think that that is a higher standard than the mere causation that you're referring to in the fact finding that was made by the board, and that when the Veterans Court did not address that question of causation, they relied upon a misinterpretation of the

[00:09:13] Speaker 03:
regulation in question here.

[00:09:14] Speaker 03:
Mr. Carver, let me ask you a housekeeping question.

[00:09:17] Speaker 04:
I should ask this up front.

[00:09:20] Speaker 04:
On page 25 of the red brief, the government says you didn't cite 38 CFR section 3.1 note 3 until your motion for reconsideration before the Veterans Court.

[00:09:31] Speaker 03:
Is that accurate?

[00:09:32] Speaker 03:
I didn't handle below, but I believe that that's correct statement for counsel below did not.

[00:09:37] Speaker 03:
That's correct.

[00:09:37] Speaker 03:
Then why aren't those arguments waived?

[00:09:41] Speaker 03:
The Veterans Court

[00:09:42] Speaker 03:
in its decision described that very circumstance in their order.

[00:09:48] Speaker 03:
So that was the way that the Veterans Court understood the argument to be made, whether that regulation was cited to or not.

[00:09:54] Speaker 03:
And I believe it's at page 8 of the decision.

[00:10:06] Speaker 03:
I'm sorry.

[00:10:07] Speaker 03:
Maybe I can find it during the in-between argument.

[00:10:10] Speaker 06:
Just to clarify, I have a question.

[00:10:13] Speaker 06:
On appendix page 8, the Veterans Court expressly cites the July 1981 board fact finding talking about what caused his disability and then says, as the court has affirmed that determination, additional medical opinion evidence would not benefit the veteran.

[00:10:33] Speaker 06:
So what am I missing on page 8 to 9

[00:10:36] Speaker 06:
I understand it probably isn't spelled out quite as clearly as you would have liked to have seen, but they are expressly citing the board's finding.

[00:10:46] Speaker 06:
They're doing so in the context of whether a medical examination is additionally required, but the reason they're saying it's not required is because they say the board found that his disabilities were caused by the accident.

[00:11:01] Speaker 06:
So they're saying we don't need to have

[00:11:03] Speaker 03:
Medical exam because the board made this fact-finding and I'm saying your honor that in the definition that is provided in 3.1 and 3 the secretary himself has placed a higher burden of showing proximate cause for the resulting disability and that that is a higher standard than the standard that was adopted by the Board as well as the standard that was accepted by you won't tell us what you want proximate cause to be

[00:11:33] Speaker 04:
Well, Your Honor, I don't believe that's Mr. Abel's responsibility.

[00:11:36] Speaker 04:
Well, you agreed with me that it's a common law definition.

[00:11:39] Speaker 03:
I do.

[00:11:40] Speaker 04:
What's the common law definition?

[00:11:42] Speaker 03:
That the resulting disability is the, it repeats itself, the approximate cause of the injury or disability.

[00:11:57] Speaker 03:
But that that is a height.

[00:11:58] Speaker 04:
You have actual cause, but you also have proximalization.

[00:12:01] Speaker 03:
That's correct.

[00:12:02] Speaker 03:
That's correct.

[00:12:03] Speaker 06:
I'm confused.

[00:12:05] Speaker 06:
I'm reading 3.1N3.

[00:12:09] Speaker 06:
Where is it that you think there is some other definition of proximate cause set out that I should conclude that the Veterans Court and the board erred as a matter of law in not applying?

[00:12:21] Speaker 03:
In the regulation at 3.301C2, cited in the government's brief, I believe three separate times, the secretary himself says,

[00:12:33] Speaker 03:
The deliberate drinking of a known poisonous substance under the conditions that would raise a presumption to the effect that would be considered willful misconduct.

[00:12:41] Speaker 03:
If in drinking a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death will be considered the result of the person's willful misconduct.

[00:12:59] Speaker 06:
OK, I think that hurts you, not helps you.

[00:13:01] Speaker 06:
What am I missing?

[00:13:03] Speaker 03:
Well, because it requires a specific finding that it was approximately and immediately the result.

[00:13:12] Speaker 06:
And that's what the board found, as I read to you.

[00:13:14] Speaker 06:
And that's what the Veterans Court cited.

[00:13:16] Speaker 04:
The facts that they found equate to approximate cause.

[00:13:21] Speaker 04:
That's your problem.

[00:13:23] Speaker 05:
Would you like to save the remainder of your time?

[00:13:25] Speaker 04:
I would do that.

[00:13:25] Speaker 05:
Very good.

[00:13:26] Speaker 05:
Why don't we hear from the government?

[00:13:40] Speaker 00:
May it please the court?

[00:13:42] Speaker 00:
I'd like to start by addressing the question.

[00:13:43] Speaker 04:
Wait, wait, wait, wait.

[00:13:44] Speaker 04:
I have a question for you.

[00:13:45] Speaker 00:
OK.

[00:13:46] Speaker 04:
So you start that way.

[00:13:47] Speaker 04:
On page six of the red brief, you say that the board found Mr. Abel's account of a June 1981 motor vehicle accident in Korea not credible because he wasn't stationed in Korea in June of 1981.

[00:13:59] Speaker 04:
And you cite to the Veterans Court decision in support.

[00:14:06] Speaker 04:
And it says that.

[00:14:07] Speaker 04:
But the board decision, as far as I can tell, doesn't.

[00:14:11] Speaker 04:
one, in the record, supports the assertion that, one, that he alleged a June 1981 accident, and two, that he wasn't stationed in Korea.

[00:14:20] Speaker 04:
I couldn't find it in there.

[00:14:22] Speaker 00:
Your Honor, well, to answer your first question regarding what is there to support a June 1981 accident, I'm not entirely positive whether Your Honor is referring

[00:14:33] Speaker 00:
to the incident that the board upon remand was discussing as a possible cause?

[00:14:39] Speaker 04:
Within the factual record before the court, where did he allege a June 1981 accident in Korea?

[00:14:46] Speaker 04:
And what shows that he wasn't stationed there?

[00:14:49] Speaker 04:
Your Honor, I'm more curious than anything else, but I couldn't find it.

[00:14:52] Speaker 00:
Your Honor, I apologize.

[00:14:53] Speaker 00:
I think it's possible that the specific service records that indicate where he was stationed in June of 1981 did not make it into this specific appendix.

[00:15:05] Speaker 00:
However, the board and the Veterans Court did find that he was stationed in Texas, and he was in Kentucky at the time of this.

[00:15:16] Speaker 04:
But where's his allegation?

[00:15:17] Speaker 00:
The allegation is not contained in the specific record itself.

[00:15:23] Speaker 00:
But again, I don't believe that Mr. Abel here is contesting before this court that he was stationed in Korea at the time.

[00:15:30] Speaker 04:
No.

[00:15:30] Speaker 04:
As I said, it's housekeeping.

[00:15:32] Speaker 04:
I'm curious, because I couldn't find it.

[00:15:35] Speaker 04:
And if you're going to say it, it should be there somewhere.

[00:15:38] Speaker 00:
Your Honor, I apologize.

[00:15:39] Speaker 00:
That was an oversight on our part to not include that specific explanation into the record.

[00:15:44] Speaker 04:
I raised note three.

[00:15:47] Speaker 04:
and your statement that it wasn't raised until a motion for reconsideration.

[00:15:53] Speaker 04:
Is it your position that his arguments are waived?

[00:15:56] Speaker 00:
Your Honor, as we didn't state in our brief, we're not specifically raising the argument that the argument is waived.

[00:16:06] Speaker 00:
But I do want to note that Mr. Carpenter's answer in response to Your Honor's question on that was that it wasn't waived because the way the Veterans Court referred to it was essentially addressing that

[00:16:21] Speaker 00:
standard, even though it didn't specifically cite 3.1n.

[00:16:24] Speaker 00:
But I want to just assert to that point that the very fact that Mr. Carpenter concedes that the Veterans' Court was basically discussing the standard under Cutts's argument that there was basically an

[00:16:38] Speaker 00:
an ignoring of the standard by the Veterans Court, because Mr. Carpenter himself concedes that the Veterans Court was referring to it.

[00:16:45] Speaker 00:
Moreover, Mr. Abel did raise 3.1N in a motion for reconsideration.

[00:16:51] Speaker 00:
So the Veterans Court did have some opportunity to address it, even though it ultimately ended up denying the motion for reconsideration.

[00:16:57] Speaker 00:
But I'd like to turn to the jurisdictional argument for just a little bit.

[00:17:02] Speaker 00:
I believe that Your Honor was exactly correct in saying that what Mr. Abel is asking this court to do is essentially reweigh the evidence.

[00:17:10] Speaker 00:
Mr. Abel states that that's not what's happening, but all of the arguments in the briefs make it abundantly clear that he is framing the sufficiency of evidence as a legal issue.

[00:17:21] Speaker 00:
Just to point, Your Honors, to a few places in Mr. Abel's briefs.

[00:17:25] Speaker 00:
He states, for example, on the reply brief at page 5 that the facts of record do not establish proximate cause, and that on page 7 he states, without such evidence of proximate cause, and there are numerous other references in his briefs

[00:17:40] Speaker 00:
to there being not enough evidence on the record.

[00:17:43] Speaker 06:
Yes, but Mr. Carpenter is claiming not enough evidence on the record under the correct standard.

[00:17:48] Speaker 06:
And see, you can't sort of leapfrog over that.

[00:17:52] Speaker 06:
What do you understand the standard to be?

[00:17:56] Speaker 06:
What's proximate cause?

[00:17:58] Speaker 00:
Well, Your Honor, if we're going by the common law definition of proximate cause, and I believe this court has actually addressed this before.

[00:18:05] Speaker 00:
to some extent, not in the setting of severance of service connection.

[00:18:10] Speaker 00:
But this court has addressed in the veterans' context what proximate cause might be.

[00:18:15] Speaker 00:
For example, in its Alice v. Shulkin decision, which we did not cite to in our brief, but I believe this court held

[00:18:22] Speaker 00:
that traditional notions of tort law apply regarding proximate cause, and that one of the notions.

[00:18:28] Speaker 06:
Well, that would be true in the absence of a statute or regulation.

[00:18:31] Speaker 06:
But Mr. Carpenter claims there's a regulation at 3301 that modifies for purposes of application in this context what the standard should be.

[00:18:44] Speaker 00:
Well, Your Honor, I don't believe that there is a specific definition of what proximate cause means in this particular context.

[00:18:52] Speaker 00:
I guess it says it.

[00:18:54] Speaker 00:
Exactly, Your Honor.

[00:18:54] Speaker 00:
Rather, 3.1n and 3.301c, both state proximate cause are proximately causing, but they don't state exactly what that means.

[00:19:03] Speaker 00:
Therefore, as this court held in alas, traditional notions of tort law regarding proximate cause should apply.

[00:19:09] Speaker 00:
And I think one of the standards that this court cited in that case as far as what proximate cause is is extending to foreseeable risk created by negligent conduct.

[00:19:17] Speaker 00:
And that directly contravenes counsel's arguments regarding what proximate cause should

[00:19:24] Speaker 00:
be constituted of in this specific scenario, it seems to me that Mr. Abel is somewhat conflating proximate cause with actual cause.

[00:19:32] Speaker 00:
And here, the board specifically cited proximate cause, as Your Honor noted, and the Veterans Court specifically addressed Mr. Abel's arguments regarding proximate cause.

[00:19:45] Speaker 00:
And therefore, there was no misinterpretation of proximate cause by the board or the Veterans Court.

[00:19:53] Speaker 00:
Mr. Abel is attempting to do is ask this court to reweigh the sufficiency of the evidence.

[00:19:57] Speaker 00:
And I'd just like to finish by stating that I believe that Mr. Abel's focus on 3.1n is a bit of a red herring in a way because the actual finding made by the Veterans Court and ultimately by the board was whether severance of service connection was warranted.

[00:20:12] Speaker 00:
The standard for that

[00:20:13] Speaker 00:
is essentially whether there was evidence that was not in front of the rating official at the time that the severance connection was granted, and whether that would have manifestly altered the original decision.

[00:20:29] Speaker 00:
And here, it does not appear that Mr. Abel is contesting either of those.

[00:20:33] Speaker 01:
Accordingly, don't you have to, in order to determine whether it would have manifestly altered the decision, you have to consider this proximate cause issue?

[00:20:41] Speaker 00:
And to the extent that the board and the Veterans Court had to consider proximate cause or causation, they both did so and found that, I think as the Veterans Court said, that Mr. Abel was misunderstanding what the error had to be and whether there was clear and unmistakable error.

[00:21:03] Speaker 00:
undebatable error.

[00:21:04] Speaker 00:
And as the Veterans Court found, it's not that every single, while the board has to consider the facts underlying the error, that not every single fact underlying the error would have to be found to be undebatable.

[00:21:16] Speaker 00:
That would be an impossible standard to reach.

[00:21:19] Speaker 00:
Rather, it's the error itself that must be undebatable.

[00:21:21] Speaker 00:
And here the Veterans Court found that the board appropriately determined that the cumulative evidence demonstrated that the error was undebatable.

[00:21:29] Speaker 00:
Therefore, neither the Veterans Court nor the board erred.

[00:21:32] Speaker 00:
If this court has no further questions, we respectfully ask that this court either dismiss Mr. Abel's appeal or affirm the Veterans Court decision.

[00:21:39] Speaker 00:
Thank you.

[00:21:41] Speaker 05:
Thank you very much.

[00:21:42] Speaker 06:
Mr. Carpenter, you have some other time.

[00:21:45] Speaker 04:
So Mr. Carpenter, do you agree with the government's shorthand that proximate cause is foreseeability?

[00:21:52] Speaker 03:
No.

[00:21:55] Speaker 03:
Although, I think if you use that definition, that there's nothing foreseeable about drinking and driving into a tree.

[00:22:02] Speaker 03:
That's not the proximate cause of having run into the tree related to the fact that he happened to be over the legal limit, but I did want to You say it's not legally foreseeable if you get really really drunk and ride a motorcycle that You may run into something tree or not

[00:22:30] Speaker 03:
Well, Your Honor, I think it's unfair to characterize a blood alcohol level of 0.12 as being really, really drunk.

[00:22:42] Speaker 03:
Just really drunk.

[00:22:43] Speaker 03:
Well, I think it's the qualification that creates the problem here.

[00:22:47] Speaker 03:
And the Secretary's regulations, in my view, address that problem.

[00:22:53] Speaker 04:
It was all over the legal limit.

[00:22:55] Speaker 03:
He was over the legal limit, Your Honor.

[00:22:58] Speaker 03:
There's no factual dispute about that.

[00:23:00] Speaker 06:
This feels a lot like a few good men.

[00:23:01] Speaker 06:
I strenuously object.

[00:23:05] Speaker 03:
Go ahead.

[00:23:10] Speaker 03:
For the record, Your Honor, at appendix 10, page 10 of the decision, in the first full paragraph, it says, Mr. Abel contends that to properly sever service connection for his back and hip disabilities

[00:23:25] Speaker 03:
it must be undebatable that his BAC or blood alcohol content of 0.12 resulted in actual not presumptive impairment and that such impairment was not some unknown medical condition or road condition that was the proximate cause of the July 1981 motor vehicle accident.

[00:23:51] Speaker 03:
The court responds, however,

[00:23:53] Speaker 03:
What the law requires is that the VA demonstrate that the cumulative evidence of the facts upon which the initial grant of service connection was based are clearly and unmistakably erroneous, citing its decision in stalwart.

[00:24:07] Speaker 03:
That indicates, as I said in my earlier argument, that the court understood the causation argument that was proximate cause argument that was being made by Mr. Abel.

[00:24:23] Speaker 03:
And that does not address, and the Veterans Court did not address, the question of the requirements of the VA's own regulations that require that it be an immediate cause of the disability and that it be approximately the cause of the disability.

[00:24:43] Speaker 03:
Unless the panel has further questions, I have nothing further.

[00:24:46] Speaker 06:
Thank you, Mr. Carpenter.

[00:24:47] Speaker 06:
I thank both counsel.

[00:24:48] Speaker 06:
The case is taken under submission.