[00:00:00] Speaker 01: Next case for argument is 21-1782, Sunbalken v. McDonough. [00:00:06] Speaker 01: Mr. Carpenter, please proceed. [00:00:08] Speaker 04: Thank you very much, Your Honor. [00:00:09] Speaker 04: May it please the Court, Kenneth Carpenter, appearing on behalf of Mr. Dale Sunbalken. [00:00:15] Speaker 04: This appeal asks this Court to determine what the legal test is for determining whether or not a claim previously made for a [00:00:24] Speaker 04: exposure to herbicide is the same claim as a covered disease that is later awarded under the provisions of VA Regulation 38 CFR 3.81621. [00:00:36] Speaker 04: Mr. Sundbocken's March 1998 claim was for peripheral neuropathy of the lower extremities as a result of herbicide exposure. [00:00:48] Speaker 04: This should have been under the correct legal test [00:00:52] Speaker 04: interpreted or excuse me, considered to have been... Mr. Carbiner, I'm sorry to interrupt you. [00:00:56] Speaker 03: Yes, sir. [00:00:56] Speaker 03: C1, I believe. [00:00:58] Speaker 03: Don't you mean C2? [00:01:03] Speaker 04: I'm sorry. [00:01:03] Speaker 03: We're talking about the regulations. [00:01:04] Speaker 04: Yes, I'm sorry, Your Honor. [00:01:06] Speaker 04: You're correct. [00:01:07] Speaker 03: Well, I mean, that was, unfortunately, a slip in your brief as well, which led to a little confusion. [00:01:11] Speaker 03: But this is, in your view, a straightforward Nehmer claim [00:01:15] Speaker 03: under the regulations, right? [00:01:17] Speaker 03: Yes, sir. [00:01:18] Speaker 03: And your view is that the Veterans Court, in deciding whether or not the PN, the peripheral neuropathy for which your client had a 1998 claim denied, whether that is basically the same as the Parkinson's under the regulation? [00:01:38] Speaker 03: And as I understand it, the board used what you view to be a totality of the evidence test to measure the comparison of the two diseases. [00:01:51] Speaker 03: And you think that's wrong. [00:01:52] Speaker 03: You think a narrower test should be used. [00:01:55] Speaker 03: I don't know, other than what you explained in the brief, [00:02:00] Speaker 03: I'm not sure that you've given us exactly the test you said. [00:02:04] Speaker 03: You suggested that where the two diseases fall in the same general category of diseases, both neurological here and because they share some common symptoms, that should be the test. [00:02:16] Speaker 04: That the manifestations that are presented by the respective claims are the same or similar as the claim that is ultimately granted. [00:02:26] Speaker 03: Manifestations or what are you talking about? [00:02:29] Speaker 04: The symptoms, John. [00:02:30] Speaker 03: Symptoms? [00:02:31] Speaker 03: Correct. [00:02:32] Speaker 03: So if the symptoms of the two diseases were the same, then that would satisfy the test under the regulation for reasonable similarity, right, in your view? [00:02:43] Speaker 04: Yes, Your Honor. [00:02:44] Speaker 03: Mere symptoms. [00:02:46] Speaker 03: So isn't that too broad? [00:02:50] Speaker 03: Isn't headache a symptom both of MS and of brain cancer? [00:02:57] Speaker 03: I think the answer is yes. [00:02:58] Speaker 04: Yes, Your Honor. [00:03:00] Speaker 03: And so a claim made earlier for multiple sclerosis, and then a later claim for brain cancer would be treated as the same. [00:03:09] Speaker 04: Well, Your Honor, we're dealing with a specific class of diseases that are identified by... Well, that's what I'm trying to get you to do, Mr. Carpenter. [00:03:18] Speaker 03: So the other side has a target to talk to? [00:03:21] Speaker 04: Yes. [00:03:22] Speaker 03: What is given in language, the specific test you believe should be used? [00:03:28] Speaker 03: to make the comparison that the regulation requires? [00:03:38] Speaker 04: Well, Your Honor, I believe it's set out in the regulation. [00:03:44] Speaker 03: You said that in the brief. [00:03:45] Speaker 03: You said reasonably may be construed to be the same as the test. [00:03:51] Speaker 03: But that's a conclusion. [00:03:52] Speaker 03: That's not the test. [00:03:53] Speaker 03: That's the question which you're trying to answer. [00:03:58] Speaker 03: And the government, quite literally, admits in its brief, I'll give you the page where they say, well, neither Nehmer nor the regulation answers this question of what test is supposed to be used. [00:04:10] Speaker 03: So we do have a question of first impression in front of us. [00:04:13] Speaker 03: What's the test you use? [00:04:15] Speaker 04: Well, that the claimant's application and the other supporting documents that he or she submits can be reasonably used. [00:04:25] Speaker 04: That's the language that is used in the regulation. [00:04:28] Speaker 03: When you then say the application and all the stuff that's in the record, that's a kind of an all things considered test. [00:04:35] Speaker 03: That's the same kind of test that's used, for example, to decide whether one has made an informal claim, right? [00:04:42] Speaker 04: No, Your Honor, it's directed to what is specifically in the record that is in the form of supporting statements. [00:04:50] Speaker 04: For example, Your Honor, at appendix 87 in the rating decision itself that was made in 1998, the VA noted that this claim included manifestations of peripheral neuropathy, including tingling, numbness, hot spots of the lower extremities, [00:05:09] Speaker 04: thigh, stomach, and abdomen weakness and trembling and shaking. [00:05:13] Speaker 04: That, that is a consistent list of the same. [00:05:17] Speaker 01: So we don't have page 87 in the appendix. [00:05:20] Speaker 01: You didn't include it. [00:05:21] Speaker 01: So I'm not sure what you're reading from. [00:05:23] Speaker 01: Are you sure it's on page 87? [00:05:24] Speaker 01: Cause we don't have an appendix page 87. [00:05:28] Speaker 04: Sorry. [00:05:28] Speaker 04: That was the note that I made. [00:05:30] Speaker 04: I'll, I'll double check in between the arguments and confirm the page number. [00:05:37] Speaker 04: I apologize. [00:05:39] Speaker 02: Mr. Carpenter, this is Judge Crows. [00:05:41] Speaker 02: Can you hear me? [00:05:42] Speaker 02: Yes, Your Honor. [00:05:43] Speaker 02: I'm still a little puzzled about where the debate is really joined here. [00:05:48] Speaker 02: There's no dispute, right, what the regulation says. [00:05:51] Speaker 02: It says it sets out a standard that reasonably may be construed as the same cover. [00:05:56] Speaker 02: What is your argument that the VA, the BVA, and the RO paid lift service to using that standard, but they applied some other standard, and if so, [00:06:10] Speaker 02: What was that standard that they unreasonably may construe that I'm just not sure where the argument is joined here. [00:06:17] Speaker 04: Well, where the argument is joined is that the veterans court decision that appendix one said that the board determination. [00:06:26] Speaker 04: excuse me, the first claim was not made for Parkinson's disease, indicating that there had to be a specific claim made for a specific disease in order to qualify as applied to the NEMA class members. [00:06:43] Speaker 04: That's inconsistent with the intent of the class action settlement, and it's inconsistent with the plain language of the secretary's own regulation. [00:06:55] Speaker 04: There is no specific requirement that this be the first claim for Parkinson's, that it must be a claim. [00:07:05] Speaker 03: You're eliding away from the issue that you meant is the main issue, which is the standard to be applied. [00:07:12] Speaker 04: I'm sorry, I was trying to respond to Judge Pro's question. [00:07:15] Speaker 03: I don't believe that... When you were eliding, you were moving away from the standard, how you go about deciding [00:07:26] Speaker 03: through, because you're saying, well, the board just made a terrible mistake here in the first place. [00:07:31] Speaker 03: They never even put a Nehmer claim in play, is what you're saying. [00:07:36] Speaker 04: No, Your Honor. [00:07:37] Speaker 04: What I'm saying is that the standard relied upon by the Veterans Board in this case was that this has to be viewed as the first claim for Parkinson's disease without consideration for what in fact was [00:07:52] Speaker 04: the first claim for peripheral neuropathy. [00:07:55] Speaker 03: And where in the board, where in the board, where in the CBC decisions that they say that? [00:08:00] Speaker 04: At appendix one, your honor. [00:08:02] Speaker 03: I'm looking at appendix one. [00:08:04] Speaker 04: Because the veteran's first claim for Parkinson's disease was not submitted until May 1st. [00:08:10] Speaker 03: I'm looking at, I'm looking at page one. [00:08:12] Speaker 03: Where on page appendix one? [00:08:17] Speaker 04: I'm sorry, your honor. [00:08:18] Speaker 04: I don't have the appendix in front of me. [00:08:27] Speaker 02: So you're saying based on this statement, the board wasn't applying a reasonably may construed standard. [00:08:34] Speaker 02: It was requiring it has first claim had to be absolutely beginning to end or Parkinson's disease was to play. [00:08:43] Speaker 02: Is that what you're basing? [00:08:45] Speaker 04: Not the board, your honor, but the veterans court decision, the veterans court decision relied upon the fact that this was that the only thing that [00:08:57] Speaker 04: was determined in the record to have been presented was a first claim for Parkinson's in 2014, without regard to the claim that was made in 1998 for peripheral neuropathy. [00:09:12] Speaker 02: But they went on. [00:09:12] Speaker 02: I mean, the board goes on for four or five pages. [00:09:15] Speaker 02: And don't they analyze the claim under what I think you think is the correct standard, whether that claim could be reasonably construed as the same disease [00:09:26] Speaker 02: as Parkinson's. [00:09:29] Speaker 02: Isn't that what the other, the ensuing three pages discuss? [00:09:35] Speaker 04: Of the board's decision, Your Honor, or the court's decision? [00:09:38] Speaker 02: Of course, I thought you were talking about taking us to the court's decision. [00:09:41] Speaker 04: Yes, the court's decision. [00:09:42] Speaker 04: Okay, I just want to make sure, I thought you said the board's decision. [00:09:45] Speaker 02: I'm sorry, I apologize. [00:09:46] Speaker 04: Well, no, yeah, I may have misheard. [00:09:50] Speaker 04: But Your Honor, in doing so, I believe that they stick to [00:09:55] Speaker 04: a standard which is too high that it has to do with the first claim that is filed in which case, or excuse me, in which they relied upon as being the May 2014 claim. [00:10:12] Speaker 03: Okay, so you've come back to the standard issue, and you said that it's a standard that was wrong. [00:10:18] Speaker 03: And I ask you again, what is merit or symptoms, common symptoms or not? [00:10:24] Speaker 03: to satisfy the regulatory test of sameness. [00:10:29] Speaker 03: You really have to, Mr. Carbon, it's very important because the test that the government is arguing here, the CAVC in its totality seems to have been weighing the totality evidence is pretty clear. [00:10:47] Speaker 03: We understand what that means in a VA context. [00:10:51] Speaker 03: And what I'm trying to get from you is what you want instead. [00:10:55] Speaker 03: And so it has to be as clear and as workable as the government standard. [00:11:06] Speaker 04: I believe that that standard is that it has to be related. [00:11:10] Speaker 04: There has to be an examination, a comparison between the prior claim in this case place in 1998 with the later claim in 2014. [00:11:24] Speaker 04: to determine whether both claims were predicated upon exposure to herbicide. [00:11:32] Speaker 01: So wait. [00:11:32] Speaker 01: So the council, they did almost exactly what you're talking about. [00:11:37] Speaker 01: On appendix page three to page four, the board, the Veterans Court notes that the board went through the specific symptoms that were alleged in the 1998 neuropathy claim, namely the shaking and trembling. [00:11:53] Speaker 01: and the bilateral carpal tunnel syndrome. [00:11:58] Speaker 01: And they go through and say that those are not the same symptoms that later justify an award for Parkinson's disease. [00:12:07] Speaker 01: They actually say that basically none of the symptoms were later attributed to the Parkinson's disease. [00:12:13] Speaker 01: That the Parkinson's symptoms, which were different, [00:12:18] Speaker 01: tremors and other things are different from the neuropathy symptoms. [00:12:24] Speaker 01: And so they found looking very much at the symptoms that these two things were not the same. [00:12:31] Speaker 01: So you wouldn't reasonably construe the neuropathy claim with the symptoms that were articulated at that time as being Parkinson's. [00:12:40] Speaker 01: So this is very fact-based, intensive, [00:12:44] Speaker 01: symptom-based analysis on pages three and four. [00:12:47] Speaker 01: The Veterans Court acknowledges the board did that in a, I think, positive way. [00:12:54] Speaker 01: So what is it about that process that you think is wrong? [00:13:00] Speaker 04: Because they elevated the standard too high by looking for- Standard. [00:13:06] Speaker 01: What standard? [00:13:08] Speaker 04: What standard? [00:13:09] Speaker 04: The reasonably construed standard. [00:13:11] Speaker 04: the reasonably construed standard that it is the same disease as was referred to in both claims. [00:13:24] Speaker 04: The claims that were made in 1998 were based upon exposure to herbicide. [00:13:30] Speaker 04: The claims made in 2014 were based upon exposure to herbicide. [00:13:36] Speaker 01: I don't understand how that, so if they file two claims that are both based on exposure to herbicides, they get the earlier effective date, what if the claims are completely unrelated? [00:13:48] Speaker 04: If they, the standard must be consistent with the claimant's application and the other supporting statements when reasonably viewed under the standard of an ordinary governing [00:14:03] Speaker 01: The board in this case and the Veterans Court found the earlier effective date was not warranted because the conditions and symptoms encompassed by peripheral neuropathy claim were unrelated to Parkinson's disease. [00:14:18] Speaker 01: Unrelated. [00:14:19] Speaker 01: That's exactly the test. [00:14:21] Speaker 04: I'm sorry. [00:14:22] Speaker 04: Relatedness is not in the test and should not be in the test. [00:14:27] Speaker 01: No, when the only council, when the only symptoms alleged in the 1998 claim are not symptoms that would reasonably be construed at Parkinson's. [00:14:37] Speaker 01: That's it. [00:14:37] Speaker 01: And that's what they, the board said in the veterans court said, I, [00:14:40] Speaker 04: With respect, Your Honor, the statement made in the 1998 rating decision identified a series of symptoms that are identical to the symptoms [00:15:00] Speaker 04: that are present in Parkinson's disease. [00:15:03] Speaker 01: Yes, but that would be a fact-finding, Mr. Carpenter, and we don't get to do that. [00:15:07] Speaker 01: And so what that's not, and what you're saying now is not consistent with either what the board held or found or what the Veterans Court affirmed and articulated. [00:15:15] Speaker 01: So you're trying to get me to look behind both of those decisions at the underlying facts upon which it's predicated, and I don't get to do that. [00:15:24] Speaker 04: I apologize, Your Honor. [00:15:25] Speaker 04: I did not intend that. [00:15:28] Speaker 01: All right, well, let's see. [00:15:29] Speaker 01: Yes, let's get Mr. Wisser a chance and we'll resource from you for a bottle of time. [00:15:35] Speaker 04: Thank you. [00:15:42] Speaker 00: Good morning, Your Honors. [00:15:44] Speaker 00: Today I please the court. [00:15:46] Speaker 00: I'd like to start with what I think is obvious, but just to go from this starting point. [00:15:51] Speaker 00: The record demonstrates that Mr. Zinbachin did not have Parkinson's disease in 1998. [00:15:56] Speaker 00: That's what VA concluded, the board concluded based on a complete review with medical evidence and that the Veterans Court affirmed on a clear error review. [00:16:06] Speaker 00: And as I believe the court just determined or explained colloquially with Mr. Carpenter, that factual finding is not subject for review at this court. [00:16:16] Speaker 01: Is that the test? [00:16:17] Speaker 01: I mean, I feel like you're starting in a bad place for me. [00:16:21] Speaker 01: You just said they found he did not have Parkinson's in 1998. [00:16:25] Speaker 01: That's not the test. [00:16:26] Speaker 01: The test isn't whether he did or didn't have Parkinson's. [00:16:29] Speaker 01: The test is whether he alleged something that could be reasonably construed as being Parkinson's, correct? [00:16:34] Speaker 00: That is correct, Your Honor. [00:16:35] Speaker 00: But I want to make clear because [00:16:37] Speaker 00: We are very, very, very far away from any circumstance where these regulations would do any work here. [00:16:43] Speaker 00: And that's the point I'm trying to make by pointing out that he did not have Parkinson's in 1998. [00:16:47] Speaker 00: And so really what his claim is here is that somehow the NEMA regulations require VA to give him an effective day of 1998 for a disease he did not have at that time. [00:16:58] Speaker 00: And that's an extremely overbroad and nonsensical view. [00:17:03] Speaker 03: That's exactly what the regulations do. [00:17:06] Speaker 00: Well, no, Your Honor, with the regulation. [00:17:08] Speaker 03: Reasonably construed as not not it was going to be equal to. [00:17:13] Speaker 00: Well, Your Honor. [00:17:14] Speaker 03: The whole thing, what's missing here is understanding what Nehmer is really doing and is dealing with a situation where a veteran files an Asian Orange claim at a particular historic point in the past and gets denied, which is what happened here. [00:17:30] Speaker 03: And then later on, the VA recognizes [00:17:33] Speaker 03: and puts something on the schedule and says, this thing has been caused by Agent Orange. [00:17:39] Speaker 03: And so what they did here was in 2010, they brought Parkinson's disease onto the presumptive list, right? [00:17:48] Speaker 00: Yes, sir. [00:17:48] Speaker 03: The veteran who had a claim denied earlier was entitled to go back and say, hey, if you view the totality of the circumstances, you'll understand that what I really had [00:18:00] Speaker 03: Uh, in back in my old claim was, should be reasonably construed to be the same apps, right? [00:18:07] Speaker 00: Yes, your honor. [00:18:08] Speaker 00: Right. [00:18:08] Speaker 03: But if we're asking, if, if you look at C one, pardon me, C two, little fun, that's really what you all been talking about, which is whether he raised an informal claim actually for Parkinson's way back when. [00:18:23] Speaker 00: That's correct, your honor. [00:18:24] Speaker 03: And under C one, you would agree with me. [00:18:26] Speaker 03: That's an alternative way under Niemeyer. [00:18:29] Speaker 03: to get your job done. [00:18:31] Speaker 03: You can actually go in and show, excuse me, I actually had Parkinson's back then. [00:18:40] Speaker 03: That's C1, little i. And we're not seeing a little too i, right? [00:18:47] Speaker 00: Well, no, Your Honor. [00:18:48] Speaker 00: And that is a point I want to clarify because [00:18:50] Speaker 00: Mr. Carpenter was sort of floating back and forth in his briefing and his argument. [00:18:54] Speaker 00: The applicable regulation is C2 little i. That is the regulation that governs here. [00:19:00] Speaker 00: That's the regulation that both... Why is that? [00:19:02] Speaker 03: Why is that so? [00:19:04] Speaker 03: Because... Look at little 2, right? [00:19:08] Speaker 03: The VA issued a decision on a claim in this time frame, which it did on the PM, right? [00:19:14] Speaker 00: It did issue a decision on the PM, Your Honor, yes. [00:19:16] Speaker 03: In C2, right? [00:19:18] Speaker 03: And then they denied compensation. [00:19:20] Speaker 03: for that poor disease. [00:19:22] Speaker 03: Reasonably, it's the same one for which compensated and awarded. [00:19:26] Speaker 03: That's the PD. [00:19:29] Speaker 00: Well, Your Honor, if I could point you to the- Right, right. [00:19:32] Speaker 03: He's been awarded compensation for PD. [00:19:35] Speaker 00: Yes, Your Honor, he has. [00:19:37] Speaker 03: Right. [00:19:37] Speaker 03: So if you just read it, he fits exactly into level two. [00:19:41] Speaker 03: Well, Your Honor, if I could point you to the- Why are you going to agree with me, aren't you? [00:19:47] Speaker 00: The facts of this case are not what Little 2 is designed to cover. [00:19:58] Speaker 00: And that's explained in the company federal register notice that we cited to in our brief. [00:20:03] Speaker 00: What Little 2 is designed to cover is a very rare situation where VA goes out of its way to deny a claim that was not presented. [00:20:11] Speaker 00: And that was a particular fact. [00:20:14] Speaker 00: Yes, your honor to deny a claim that was not presented. [00:20:17] Speaker 00: That was a particular practice of the VA around the time of the Nehmer settlement in the late 80s and early 90s where if they were presented with the claim and they would review all of the veterans medical records, some regional offices and some portions of the VA would [00:20:34] Speaker 00: look at the medical records, look at all the conditions. [00:20:37] Speaker 03: OK, well, let me ask this question. [00:20:39] Speaker 03: I found the briefing on that to be locally inadequate to explain to me exactly what this regulation was all about. [00:20:46] Speaker 03: I went back to Nehmer and read it, you know, right straight forward and read the regs. [00:20:50] Speaker 03: And this reg is impenetrably complex to figure it out. [00:20:55] Speaker 03: But why does it make any difference? [00:20:56] Speaker 03: The standard is the same in both one and two. [00:20:59] Speaker 00: Your Honor, and we did point that out in our brief, that we don't believe there's any meaningful difference in the standards. [00:21:04] Speaker 03: But I did want to make that clarification that our president- Isn't the question on the appeal the standard, whether you were in one or two? [00:21:11] Speaker 00: Your Honor, we do not believe that the standard would be substantially different between one and two. [00:21:15] Speaker 00: What one is looking at is what was the claim that was filed and examining the intent of the claim, and two is examining what- And your argument for a totality of the record [00:21:26] Speaker 03: type of test, similar would be when you're doing a construction for whether an informal claim has been filed. [00:21:31] Speaker 03: The standard same analysis that is pro-matter and driven to require consideration of everything that's in the record. [00:21:40] Speaker 00: That is correct, Your Honor, and that's actually written in little i, the first subsection there, that VA should apply the same standards that are ordinarily applied. [00:21:50] Speaker 03: And so that's the view, that is what you believe, you believe that was done both by the board and by the Barron's Court and that we should affirm on that basis. [00:21:58] Speaker 00: That is correct, Your Honor. [00:21:59] Speaker 03: And understand, and understand the property to be argued for a different test that is actually less veteran friendly because it would not consider everything in the record, but it's limited to a subset of information in the record. [00:22:14] Speaker 00: That is what we understand Mr. Sundbaken to be advocating for. [00:22:17] Speaker 00: And for the exact point you mentioned, Your Honor, it doesn't seem to make sense to determine what evidence should be excluded or why certain evidence should not be considered. [00:22:25] Speaker 03: Now, do you understand what evidence Mr. Sundbaken believes should be the test and limited to that information? [00:22:31] Speaker 00: We do not. [00:22:32] Speaker 00: We do not understand which evidence should or should not be considered under the test he's advocating for. [00:22:37] Speaker 03: Other than that it's symptom driven. [00:22:40] Speaker 00: That is correct, Your Honor. [00:22:41] Speaker 00: And I will note that he did cite to the Delizio decision by the Veterans Court, which had some discussion as to when two conditions that might have the same symptoms could be construed as the same condition. [00:22:56] Speaker 00: what we noted in our brief was that that decision was talking about conditions that are derivative of each other. [00:23:02] Speaker 00: So, in the DeLizio case, Mr. DeLizio had diabetes and then subsequently developed peripheral neuropathy as an extension of his diabetes. [00:23:13] Speaker 00: And so, the Veterans Court said those are clearly related because one disease is a progression of the other. [00:23:18] Speaker 03: And so, we wouldn't. [00:23:25] Speaker 03: of the record type analysis? [00:23:28] Speaker 00: Yes, Your Honor. [00:23:30] Speaker 00: And the point we would make is that if what he's advocating for is that sort of connection is necessary, that there is some underlying pathological relationship between two conditions that is demonstrated through a complete review of the evidence, we would agree with that completely and would not fight against that. [00:23:48] Speaker 00: What we have here though is. [00:23:49] Speaker 03: Your argument is that that type of connection doesn't exist between PN and PD. [00:23:54] Speaker 00: That's correct, Your Honor. [00:23:54] Speaker 00: And if you review the board's discussion in particular, appendix 17 through appendix 19, it goes through the symptoms and the condition that Mr. Simbakken presented back in 1998, the conclusive diagnosis of peripheral neuropathy. [00:24:10] Speaker 00: It notes that peripheral neuropathy is a condition that affects the extremities, the nerve endings, [00:24:16] Speaker 00: Whereas Parkinson is a condition that affects brain tissue and that the symptoms that he developed in 2012 that led to his Parkinson's diagnosis were distinct from the symptoms that led to his diagnosis in 1998 of peripheral neuropathy. [00:24:31] Speaker 00: And also they note that the Parkinson's diagnosis from 2012 was specifically noted to be early stage Parkinson's, which was yet further evidence that it had not been manifesting for 15 years in some fashion because it was determined to be at a very early stage of development. [00:24:46] Speaker 00: So we believe that the board did conclusively determine that his peripheral neuropathy and his Parkinson's were two distinct conditions, two distinct sets of symptoms within Mr. Sundbaken [00:24:58] Speaker 00: We acknowledge that the diagnostic symptoms could be similar in certain patients, but they were not in this case. [00:25:04] Speaker 00: And that was a factual finding made by VA and the board. [00:25:07] Speaker 00: The only other point that I'd like to make is just to clean up, [00:25:17] Speaker 00: one point of confusion that may have come across from our response brief that Mr. Sundbach can address in his reply, which is whether or not the Veterans Court conducted fact finding. [00:25:26] Speaker 00: And upon review, I do agree that the language that we used in our response brief may have been unclear on that point. [00:25:32] Speaker 00: I apologize for that. [00:25:34] Speaker 00: But I do believe it's clear from the record [00:25:36] Speaker 00: that the Veterans Court was applying a clearly erroneous standard. [00:25:39] Speaker 00: They were reviewing the factual findings the board conducted. [00:25:43] Speaker 00: And so there was no question that the Veterans Court applied that standard correctly, that they were not weighing the evidence independently for themselves. [00:25:51] Speaker 00: I apologize for that confusion in our briefing, but I believe that the record speaks for itself on that point. [00:25:59] Speaker 00: And if the court has no other questions, then I believe I've addressed the points that we wanted to make. [00:26:05] Speaker 01: Thank you, counsel. [00:26:07] Speaker 01: Mr. Carpenter will restore two minutes of rebuttal time. [00:26:13] Speaker 04: Your honor, if the court please take that appendix 116 is the 1998 rating decision. [00:26:23] Speaker 04: I apologize. [00:26:24] Speaker 04: It was at page 87 of the joint appendix, but the, as it was numbered, but the appendix number is 116. [00:26:34] Speaker 04: where the note is that refers to specifically the trembling that is the overlapping symptom that we believe constitutes the reasonable basis to view them as being the claim for the same condition. [00:26:54] Speaker 03: Where are we in 116, Mr. Verbinger? [00:26:59] Speaker 04: There is a goldish note just above the NERC number two in which it describes the disclaim also included. [00:27:13] Speaker 04: And the ultimate assignment of service connection for [00:27:18] Speaker 04: Mr. Sundyck and Presidue deals with the extremity tremors that are associated with Parkinson's. [00:27:30] Speaker 04: And that's, in our view, Your Honor, where the lower, the Veterans Court decision in Valencia comes into play in which the ultimate relationship between a [00:27:44] Speaker 04: symptom of the condition, which is noted in an earlier claim, should be considered when applying the effective date regulation to determine whether or not the VA states with tremendous confidence what the state was of... Well, as Mr. Parliamentary Chief just pointed out, the board did assess [00:28:12] Speaker 03: both of the 1998 condition and of the subsequent Parkinson's condition. [00:28:18] Speaker 04: Yes, Your Honor. [00:28:18] Speaker 04: And our problem is that they compare them as conditions rather than their data. [00:28:23] Speaker 03: Right, right. [00:28:24] Speaker 03: But she also, I believe that she also pointed out that if your concern is that while the board did the right thing by looking at the two symptoms, they messed up and made a mistake. [00:28:42] Speaker 03: And if that's the gravamen of your case, that's a fact question that lies outside of our reach. [00:28:50] Speaker 03: I'm having, I'm trying to track as closely as I can and precisely as I can where you are, because this case needs a clear decision on what the standard should be. [00:29:06] Speaker 04: Thank you, Your Honor. [00:29:07] Speaker 04: And I apologize for not being able to articulate it as clearly as I should have been able to articulate it. [00:29:13] Speaker 03: Well, in all fairness to you, Mr. Faber, you're the leader of the bar here. [00:29:18] Speaker 03: And you know how important this issue is. [00:29:21] Speaker 03: And as in the past, the court looks to you for guidance with your experience or specificity to help us [00:29:31] Speaker 03: curve and adopt or establish correct standards that will benefit our veterans. [00:29:39] Speaker 03: And typically, Mr. Carpenter, you're in front of us arguing that the agency has ignored relevant pieces of our work. [00:29:49] Speaker 03: In ignoring those relevant pieces of the record, they have disfavored the veterans and encouraged us to look at all things considered in the record. [00:29:59] Speaker 03: But in this case, [00:30:00] Speaker 03: your shift saying no, don't look at everything in the record, just look at little bits of it. [00:30:06] Speaker 03: And so I'm having trouble understanding where you're coming from. [00:30:10] Speaker 04: Well, I apologize for that, Your Honor, and that probably was in fact on me and my shortcoming. [00:30:16] Speaker 04: It is the view of Mr. Sundbach that the regulation speaks to a [00:30:25] Speaker 04: very precise standard that is lower than the standards that were used by the Veterans Court and the board to determine, as the government said in its presentation, whether or not he did or didn't have Parkinson's. [00:30:43] Speaker 04: And that should not be the test. [00:30:46] Speaker 04: The test should be a comparison of symptoms that are potentially related to this. [00:30:53] Speaker 03: Okay, but we went through all that before. [00:30:56] Speaker 03: And the chief judge pointed out, yes, we see that on A1. [00:31:00] Speaker 03: But on A3 and A4, you see analysis under the regulation, yada, yada, yada. [00:31:06] Speaker 03: So assume that you lose on that point, on the point you just made. [00:31:10] Speaker 03: We come back to the standard issue, do we not? [00:31:13] Speaker 04: Yes, you do. [00:31:14] Speaker 03: OK. [00:31:16] Speaker 03: And I'm still waiting. [00:31:19] Speaker 04: I'm obviously not able to articulate it [00:31:22] Speaker 04: in a way that is helpful to the court. [00:31:25] Speaker 04: And to that extent, I apologize. [00:31:27] Speaker 01: Okay. [00:31:30] Speaker 01: Is there anything further? [00:31:32] Speaker 04: No, I was just going to say I'm out of time. [00:31:34] Speaker 01: Okay. [00:31:35] Speaker 01: Thank you. [00:31:36] Speaker 01: I thank the council. [00:31:37] Speaker 01: This case is taken under submission. [00:31:39] Speaker 00: Thank you. [00:31:42] Speaker 00: The honorable court is adjourned until tomorrow morning at 10 a.m.