[00:00:00] Speaker 04: Our last case this morning is David Johnson versus the Secretary of Veterans Affairs, 2024, 1898. [00:00:06] Speaker 04: Mr. Murray. [00:00:08] Speaker 04: Thank you, Ron. [00:00:14] Speaker 01: You may please the court. [00:00:17] Speaker 01: The Veterans Court misinterpreted VA's reduction regulations, specifically 38 CFR sections 3.344, 4.2, and 4.13, which requires VA to establish actual improvement in the overall disability picture to include under the ordinary conditions of life and work and seeking work. [00:00:36] Speaker 01: Here, Mr. Johnson's overall ankle disability picture did not improve. [00:00:41] Speaker 01: Instead, different VA examiners reviewed the exact same evidence and reached different conclusions regarding the presence or absence of ankylosis. [00:00:49] Speaker 01: In other words, the only thing that has changed is the descriptive term used to describe Mr. Johnson's bilateral ankle range of motion. [00:00:57] Speaker 01: And under section 4.13, this does not represent the actual change that is required to reduce the disability rate. [00:01:04] Speaker 03: I'm a little confused about this whole argument. [00:01:07] Speaker 03: And maybe that's because some of these cases become confusing, because one of the issues we have to decide is whether or not this is a question of law, which we have in view. [00:01:16] Speaker 03: It seems to me that you get a question of law on your side based on a predicate that I don't think has been established by the record. [00:01:25] Speaker 03: You start off by saying there's been no reduction. [00:01:30] Speaker 03: This was an error in the first place, right? [00:01:32] Speaker 03: And that's why you say they violated the reg. [00:01:35] Speaker 03: There's been no improvement, Your Honor. [00:01:36] Speaker 03: There's been no improvement? [00:01:37] Speaker 03: Yes, Your Honor. [00:01:38] Speaker 03: But that's a factual determination. [00:01:40] Speaker 03: And the board and the CABC, they didn't say there's no improvement when we're applying this reg. [00:01:45] Speaker 03: They say there has been improvement. [00:01:47] Speaker 03: So where do we get to the regulation and to whether or not they correctly [00:01:54] Speaker 03: construed the regulation when the predicate is one that they never accepted. [00:01:58] Speaker 01: Yes, Your Honor. [00:02:00] Speaker 01: So as you mentioned, this Court has jurisdiction over questions of law. [00:02:03] Speaker 01: And here is the interpretation of two regulations. [00:02:06] Speaker 01: First, what we're talking about now, section 4.13, and the requirement of actual change. [00:02:11] Speaker 03: And the Veterans Court... So you're saying, what are you saying the legal error was? [00:02:16] Speaker 03: That they applied the regulation incorrectly, right? [00:02:19] Speaker 03: You're talking about the application of the regulation. [00:02:21] Speaker 03: No, Your Honor, it's their interpretation of the phrase actual change. [00:02:24] Speaker 03: So you're saying they misinterpreted actual change to include what? [00:02:30] Speaker 03: To include error. [00:02:32] Speaker 03: But that's not what they said. [00:02:34] Speaker 01: Yes, Your Honor, it is. [00:02:34] Speaker 01: On page 9 of the appendix, the Veterans Court found that the evidence confirms that a felon's initial examiner's marked ankylosis in error. [00:02:43] Speaker 01: And so once the Veterans Court found there to be error. [00:02:45] Speaker 03: Yeah, but they made a statement about that. [00:02:48] Speaker 03: But the basis for their conclusion was setting that inconsistency aside, even if the initial examiner had noted it correctly, they no longer had it. [00:03:01] Speaker 01: Yes, sir. [00:03:01] Speaker 01: But I think that is an example of the court trying to have it both ways here. [00:03:05] Speaker 01: And I think if you read that in context with what the court said later on on page 10, it speaks to how the court held that the board correctly concluded that it held a synkylosis, but then calls it a legal reality, if not a medical one. [00:03:21] Speaker 03: And that's where the legal error here. [00:03:24] Speaker 03: The statute requires this initial examination holds unless it's taken back by a CUE. [00:03:34] Speaker 03: So the legal reality of this case is this final decision that was accepted by the VA that he had the 40% and then the evidence as to whether or not that should be reduced. [00:03:47] Speaker 03: That is the legal reality, right? [00:03:49] Speaker 01: Well, that's the legal reality, but that's not the medical reality. [00:03:52] Speaker 01: Well, nobody has proven or disproven the medical reality because we don't have a CUE proceeding. [00:03:58] Speaker 01: Well, exactly, Your Honor. [00:03:59] Speaker 01: And that's the error of law here, is that the Veterans Corps relied on error to find actual improvement. [00:04:05] Speaker 03: So you're saying because as an alternative or because in background, they said, we're not sure whether this was an error. [00:04:11] Speaker 03: This could have been an error. [00:04:13] Speaker 03: So you're saying they were obligated to go for a CUE, therefore, and not to go for a reduction? [00:04:18] Speaker 03: Yes, Your Honor. [00:04:19] Speaker 03: OK, well, let me ask you about that. [00:04:20] Speaker 03: What is a practical consequence of all of this? [00:04:24] Speaker 03: Does it get you or anyone here? [00:04:27] Speaker 03: If you got a remand, we'd say, OK, so the VA decides, OK, let's do a CUE. [00:04:33] Speaker 03: And they go in for a CUE. [00:04:35] Speaker 03: If they win, then you still lose. [00:04:38] Speaker 03: Even if they lose, that just puts them into the basket they're currently in. [00:04:42] Speaker 03: Because if there's no CUE, if there's a determination that there's no CUE, then where we started here? [00:04:49] Speaker 03: Because then it becomes, no, it wasn't an error. [00:04:53] Speaker 03: Therefore, there's been a reduction. [00:04:54] Speaker 03: And then we're on the exact case we have before us now. [00:04:58] Speaker 03: So spinning the wheels on technicality, am I wrong about that in terms of the consequences of whatever goes on here? [00:05:05] Speaker 01: I believe so, Your Honor, respectfully. [00:05:07] Speaker 01: Again, I think the veteran court's strong language here regarding the error [00:05:12] Speaker 03: I understand that they try to... I'm sorry to keep asking too many questions, but take the question I have about what the consequences are for you. [00:05:22] Speaker 03: If you prevail here, if the VA goes in for a CUE, [00:05:28] Speaker 03: If the government wins, case over, right? [00:05:32] Speaker 03: Yes, Your Honor. [00:05:32] Speaker 03: If the government loses, case is now in the basket that this case is in, which is there's been an actual reduction, because there was no CLE, and the original determination was not an error. [00:05:45] Speaker 03: So there is a reduction, which is precisely the analysis we went through in this case. [00:05:49] Speaker 03: Right? [00:05:50] Speaker 01: If you find, Your Honor, that the VA should have gone the CUE route, then the board's decision is void ab initio. [00:06:00] Speaker 03: But let's assume they go for, you say there should have been a CUE. [00:06:05] Speaker 03: Yes, Your Honor. [00:06:05] Speaker 03: I mean, I've never seen a circumstance where we're forcing the VA to say something's in error, where they're perfectly comfortable to say that they're allowed reduction, but leave that aside. [00:06:14] Speaker 03: OK, they go for a CUE. [00:06:16] Speaker 01: Yes, sir. [00:06:16] Speaker 01: And I agree with you. [00:06:18] Speaker 01: If there is CUE, then the decision would be revised as of the date of the original decision, and we would be in the same place. [00:06:24] Speaker 01: But if the board's decision is void ab initio and there is later determined not to be CUE, then Mr. Johnson would maintain his 40% ratings. [00:06:32] Speaker 03: If there's no CUE, [00:06:35] Speaker 03: Can't the board then set what precludes the CAVC and the board to do exactly what they've already run through here over a period of years, which to say, if that's the decision, if there's no CUE, then it was a reduction. [00:06:48] Speaker 03: Because if there's no CUE, that means he started with the 40%. [00:06:51] Speaker 03: And now he doesn't have it. [00:06:53] Speaker 03: And there is indisputed evidence that the more recent examinations established that he doesn't have, I can't pronounce the term, ankylosis. [00:07:04] Speaker 03: then we're exactly where we are now, which there's been a reduction. [00:07:08] Speaker 03: You understand why it's a practical matter in terms of helping your client or giving your client some relief. [00:07:16] Speaker 03: You may get technical legal reality relief, because at one point, this decision is void of an issue, as you say. [00:07:24] Speaker 03: But as a consequence of this, the result remains the same. [00:07:27] Speaker 01: That's why I emphasize, Your Honor, that we have to look at the overall disability picture for his ankles. [00:07:33] Speaker 01: And if we take out that one term, ankylosis, this is the descriptive term to describe Mr. Johnson's range of motion for his ankles. [00:07:43] Speaker 01: And under 4.13, again, it requires actual change and not just a change in descriptive terms. [00:07:48] Speaker 03: So if the initial decision was correct, then the argument is, has there been a change? [00:07:57] Speaker 03: The evidence in this case seems overwhelming. [00:08:00] Speaker 03: And we're not allowed to review it. [00:08:02] Speaker 03: In any event, it would be unreviewable by us. [00:08:05] Speaker 03: So the board and the CIBC would be free to have the exact same analysis they already have done. [00:08:11] Speaker 01: Well, only if we look at that one term, ankylosis, Your Honor. [00:08:14] Speaker 01: And if you take out that one descriptive term, then Mr. Johnson's ankle disabilities, the range of motion stayed essentially the same. [00:08:22] Speaker 01: Over the course of the appeal, he developed instability, whereas he had none. [00:08:25] Speaker 01: He developed a loss of muscle strength, whereas he had none. [00:08:29] Speaker 01: And so if you look at the overall disability picture, taking out that one descriptive term, I would say it is not clear at all that his disabilities ever improved. [00:08:38] Speaker 02: Did you raise any legal issue? [00:08:40] Speaker 02: that doesn't have a factual predicate. [00:08:42] Speaker 02: Because when you were having a conversation with Judge Post initially, and we're just kind of seeing whether or not the case falls within our jurisdiction, there was the conversation back and forth about to get to one of the legal issues that you were presenting to us, there is kind of a factual predicate potentially that had to be addressed. [00:09:01] Speaker 01: It is, Your Honor. [00:09:02] Speaker 01: As I mentioned, Section 4.13 requires actual change. [00:09:05] Speaker 01: And the parties agreed that the last sentence of that section said that it doesn't apply in cases of error for VA to correct errors. [00:09:12] Speaker 01: And the Board and the Veterans Court was very clear in that [00:09:17] Speaker 01: For their findings, the initial examiner's notation of ankylosis was an error. [00:09:23] Speaker 01: And so once it was determined to be error, that takes us out of section 4.13. [00:09:29] Speaker 03: And so it was a legal error for the Veterans Court to apply that regulation. [00:09:32] Speaker 03: I'm sorry. [00:09:32] Speaker 03: That wasn't a final decision that dislodges. [00:09:35] Speaker 03: That doesn't have the consequences of a CUE. [00:09:38] Speaker 03: Well, no, it doesn't, Your Honor. [00:09:39] Speaker 01: But that's the error of law is that no one has undergone the CUE analysis. [00:09:43] Speaker 03: Well, there might be an error of law if the board said full stop. [00:09:49] Speaker 03: This was an error in the first instance, and so we should affirm this. [00:09:55] Speaker 03: I agree. [00:09:55] Speaker 03: That would be full stop, did they correctly apply the regulation. [00:09:59] Speaker 03: But that's not the way I'm reading what the board's analysis was and what the CABC's analysis was. [00:10:05] Speaker 03: There was a phrase that's saying, hey, this looks like an error to us. [00:10:10] Speaker 03: irrespective, and then they accept the fact that this is good law as they had to because it's a final decision. [00:10:19] Speaker 03: So the board then accepted what you say they said was error and proceeded. [00:10:26] Speaker 03: I'm sorry to cut you off. [00:10:27] Speaker 03: No, no, that's fine. [00:10:29] Speaker 01: Well, again, Your Honor, so I would submit that the board actually did find that the entire basis for ankylosis was error. [00:10:36] Speaker 01: And so if there never was ankylosis in the first place, this is what the board found, this is what the Veterans Court said the evidence confirmed, then the simple fact that he no longer had ankylosis, which is the only manifestation that both the board and the Veterans Court focused on, the simple fact that he didn't have that one manifestation alone cannot represent the actual change that section 4.13 requires. [00:10:58] Speaker 01: And so by basing the finding of improvement on a finding of earlier error in the 2012 examination report, that took this entire case out of section 4.13. [00:11:11] Speaker 01: And so the legal error here, and the question of law is, can living in this world of illegal fiction, so the Veterans Court said there was no ankylosis, but now we're going to pretend that there was. [00:11:23] Speaker 01: so that under 4.13, we can find actual improvement. [00:11:27] Speaker 01: That is the question of law here, is that can we live in this legal fiction so that we can find actual change in section 4.13? [00:11:35] Speaker 01: And as I mentioned, section 4 very well. [00:11:37] Speaker 02: So a question, though, in terms of the application of law to fact. [00:11:40] Speaker 02: And I don't want to be overly repetitive of the questions that Judge Price asked you, but I am a bit concerned just in terms of the jurisdictional concerns. [00:11:50] Speaker 01: No, I understand, Your Honor. [00:11:51] Speaker 01: But again, I think the question of law here is, once the court found error, then it misinterpreted 4.13 to allow 4.13 to apply to that finding of error. [00:12:06] Speaker 01: It relied on what it found itself to be an erroneous finding to then shoehorn [00:12:14] Speaker 01: into a finding of actual improvement. [00:12:16] Speaker 01: And that is a misinterpretation of the regulation 4.13 that this court can address. [00:12:22] Speaker 02: But I'd also like to- [00:12:28] Speaker 01: No, Your Honor. [00:12:30] Speaker 01: Accepting the Veterans Court's finding that the evidence confirms the initial diagnosis were an error. [00:12:35] Speaker 01: If we accept that, we're not asking the court to question that whatsoever. [00:12:39] Speaker 01: But once we accept that court's finding, then the fact that he never had angelosis means that not having it now cannot mean actual change. [00:12:48] Speaker 01: And that's the misinterpretation of the regulation that we believe the Veterans Court made. [00:12:52] Speaker 01: But before I run out of time, Your Honor, I would also like to point out, even taking that out of the equation, I'd also like to point out that the Veterans Court made at least two factual findings in the first instance that violate this Court's holdings in Tadlock and Stenson. [00:13:05] Speaker 01: And one is that the Section 4.2, that the Board is not required to address the ordinary conditions of work if the veteran didn't work during the appeal period. [00:13:14] Speaker 01: Section 4.2 clearly states that the ratings should be viewed as if the veteran is working or seeking work. [00:13:20] Speaker 01: And so the Veterans Court misinterpreted section 4.2 there and rendered its own factual finding. [00:13:25] Speaker 01: But also the Veterans Court found that the three pre-reduction, 2013 pre-reduction examinations were more than enough to support the board's findings of actual improvement. [00:13:36] Speaker 01: But that conflicts with the board's own actions, and that the board remanded three times after the reduction to obtain additional evidence. [00:13:45] Speaker 01: And if what the court held were true, that the examination reports pre-reduction supported the board's findings, the board wouldn't have had to remand three times in the first place. [00:13:53] Speaker 01: And the board never directly addressed the adequacy of those exams. [00:13:57] Speaker 01: And I would submit that he essentially found those exams inadequate, again, because it remanded three times. [00:14:03] Speaker 01: And so the Veterans' Court's finding that those examinations were adequate is a finding in the first instance that it should not have made. [00:14:10] Speaker 01: And if I may reserve the remainder of my time for a bottle. [00:14:13] Speaker 04: I will give you two minutes for a bottle. [00:14:28] Speaker 00: May I please the court? [00:14:29] Speaker 00: This court should affirm the Veterans Court decision because the Veterans Court did no more than simply apply the relevant regulations for rating reductions. [00:14:39] Speaker 04: So you say we should affirm, not dismiss. [00:14:43] Speaker 00: So to that point, we did argue in the brief that this court does not have jurisdiction because of the fact that the Veterans Court only applied [00:14:55] Speaker 00: relevant law to fact. [00:14:57] Speaker 00: As Judge Proce said, there's a factual predicate here that underpins all of Mr. Johnson's legal arguments. [00:15:03] Speaker 00: And that is the fact of whether there was an error in the first instance in his original disability rating. [00:15:11] Speaker 00: And so without that factual predicate, there is no legal argument here. [00:15:17] Speaker 04: And so you didn't mean it when you just said we should affirm. [00:15:21] Speaker 00: Affirm or dismiss, Your Honor. [00:15:23] Speaker 00: Well, there's a difference. [00:15:25] Speaker 02: So really, in following up on Judge Laurie's question, it sounds like your primary argument is that we should dismiss. [00:15:35] Speaker 02: But if we were to disagree with that and that we think there's something of jurisdiction over it, you think we should affirm. [00:15:42] Speaker 00: Is that what you're trying to say? [00:15:44] Speaker 00: Yes. [00:15:46] Speaker 00: If there are, I can address the jurisdictional issue further if there are more questions about that, but I can move on. [00:15:52] Speaker 02: I do want to hear about, he pointed out a very specific thing that he says is the error. [00:15:57] Speaker 02: So I just want to hear your response to that in terms of whether or not following up on Judge Pro's question on that there is this factual predicate, which it sounds like you were saying in response to Judge Lurie's question. [00:16:08] Speaker 02: I just felt like we got off to a kind of uncertain start. [00:16:12] Speaker 02: So I do want to hear a little bit more on that. [00:16:14] Speaker 00: OK. [00:16:16] Speaker 00: So what I understand the factual predicate to be is whether Mr. Johnson actually had ankylosis in 2012. [00:16:26] Speaker 00: And so that factual predicate is the underpinning for all of his legal arguments here. [00:16:35] Speaker 00: Because as just Pro said, if he didn't actually have ankylosis, then [00:16:44] Speaker 00: I mean, there's no case here. [00:16:46] Speaker 00: Like, well, you could go back and actually go through a Q process and then reduce his rating that way. [00:16:53] Speaker 00: But if he does, in fact, actually have ankyosis, then we're in the same spot that we are now, in the sense that the VA is allowed to use the standard ratings reduction process to reduce his rating from 40% to 20%. [00:17:12] Speaker 03: I guess, I mean, there is this phrase. [00:17:15] Speaker 03: I mean, they do say at page nine of the appendix, the weight of medical evidence backs the board's view. [00:17:21] Speaker 03: It confirms the initial examiner's marked whatever is an error. [00:17:28] Speaker 03: And then they say setting aside this inconsistency. [00:17:32] Speaker 03: But if not for that, there wouldn't be a problem here. [00:17:37] Speaker 03: But the problem is your friend takes that sentence and says, [00:17:40] Speaker 03: That was the basis for the board's decision. [00:17:43] Speaker 03: And it wasn't actually a reduction or a change. [00:17:47] Speaker 03: So it seems here that they have two alternatives, maybe, because they set aside that conclusion. [00:17:53] Speaker 03: And then they say, but if it's changed, they no longer have it. [00:17:58] Speaker 03: That's the genesis of the confusion. [00:18:01] Speaker 03: And I respect that. [00:18:05] Speaker 00: I understand that, Your Honor. [00:18:06] Speaker 00: I will point out that that language is only in the Veterans Court decision. [00:18:10] Speaker 00: The Board itself seems to have language that kind of indicates the other way, where the Board specifically found on Appendix 112, it said that, moreover, to the extent that the findings of ankyosis do not represent erroneous findings, which appears to be the case. [00:18:30] Speaker 00: then the record essentially demonstrates improvement in Mr. Johnson's disability. [00:18:36] Speaker 00: So really, I mean, I think let's take a step back. [00:18:41] Speaker 00: The record itself does demonstrate that Mr. Johnson had ankyosis in 2012. [00:18:50] Speaker 00: That's what it says. [00:18:51] Speaker 03: Well, I think you would say that that's because we've got a determination in the first instance [00:18:58] Speaker 03: in the original decision, and that's a final decision under 3.105, and that exists. [00:19:05] Speaker 00: Is that right? [00:19:06] Speaker 00: That's right, Your Honor. [00:19:07] Speaker 00: And also, there's later findings in past 2013 where it was determined that Mr. Johnson no longer had ankyosis. [00:19:16] Speaker 00: And so putting those two things together, that represents an actual change. [00:19:21] Speaker 00: But again, these are all factual questions. [00:19:25] Speaker 00: And so to the extent that Mr. Johnson is arguing whether there is or isn't whether he actually had ankyosis back in 2012, that's the factual predicate for the rest of his arguments. [00:19:37] Speaker 00: And so without that, there is no legal argument to apply here. [00:19:44] Speaker 00: I think that's where the jurisdictional bar comes in. [00:19:49] Speaker 00: But ultimately, this is just a standard rating reduction case. [00:19:55] Speaker 00: And that's different from when the VA would pursue something under COE. [00:20:02] Speaker 00: And the difference is in the ultimate outcome here. [00:20:06] Speaker 00: So the VA is not seeking to undo that original final determination of ankyosis. [00:20:15] Speaker 00: It's just simply trying to [00:20:18] Speaker 00: put Mr. Johnson at the correct rating that he is right now. [00:20:22] Speaker 00: Can I ask you just a technical question? [00:20:26] Speaker 03: What's the difference to the veteran? [00:20:28] Speaker 03: If there were a CUE case in this context, is the veteran required to pay back what he got? [00:20:38] Speaker 03: There's a determination that this was an erroneous ruling in the first instance. [00:20:42] Speaker 03: I think the answer is no. [00:20:44] Speaker 03: Does the government seek to claw back the money that's been paid under what is now determined to have been an erroneous ruling? [00:20:52] Speaker 00: I believe the veteran would keep that money under 38. [00:20:55] Speaker 03: So there's no different consequence to the veteran, whether it's a CUE or whether it's something else. [00:21:00] Speaker 00: I think in this particular case, there might not be a difference because it's simply a rating reduction. [00:21:07] Speaker 00: I would submit that in the case where there's a CUE and there's a finding that maybe the veteran didn't have a disability in the first place, [00:21:19] Speaker 00: the service connection would be potentially severed there. [00:21:22] Speaker 00: And so prospectively, the veteran would lose benefits moving forward. [00:21:26] Speaker 00: Prospectively, but not retroactively to the original Theronius decision. [00:21:31] Speaker 00: Right. [00:21:31] Speaker 00: But that's in comparison to a simple rating reduction, where if the veteran's rating was reduced to zero, he would still have a service connection back to the original finding of disability. [00:21:48] Speaker 03: Do you want to respond to the final argument or one of the final arguments your friend made on another matter, which is on the work thing, the error he's alleging in terms of the CABC's analysis of what you look at in terms of seeking employment? [00:22:03] Speaker 03: You know, the final point he made. [00:22:06] Speaker 00: OK. [00:22:06] Speaker 00: So in terms of that, the board did make those findings. [00:22:12] Speaker 00: So it stated the standard, and it determined that [00:22:19] Speaker 00: based on that standard, it did analyze Mr. Johnson's ability to actually function, both in terms of the ordinary conditions of life and work. [00:22:39] Speaker 00: the board's decision actually does recite that standard. [00:22:42] Speaker 00: And so there's no evidence to the contrary that they didn't actually consider Mr. Johnson's capability to work. [00:22:49] Speaker 00: But I think the problem here is that Mr. Johnson, the record reflects that Mr. Johnson wasn't actually working throughout this whole time. [00:22:56] Speaker 00: And so I think that's reflected in the Veterans Court decision as well, where the court kind of poses the question, well, what is the board supposed to do here if there's no work to be analyzed? [00:23:10] Speaker 00: So in that sense, I think the board carried out its duty [00:23:15] Speaker 00: under that standard to fully analyze Mr. Johnson's disability and his ability to function under work and life to the extent that it was capable of doing. [00:23:29] Speaker 02: If the board didn't say anything explicitly about his conditions of work and only missioned life in the appendix, I think it's appendix page 112, was the Veterans Court really reviewing a factual finding or was the Veterans Court potentially [00:23:44] Speaker 02: making a factual finding of its own. [00:23:50] Speaker 00: The Veterans Court was not making a factual finding in the first instance. [00:23:54] Speaker 00: Because it understood the board to make that finding in the first instance, it's only reviewing. [00:23:59] Speaker 00: So I think, I mean, [00:24:06] Speaker 00: It didn't make any extraneous factual findings to that point beyond what the board had said. [00:24:12] Speaker 00: And so looking at the Veterans Court decision itself, it's simply just a review of what the board had said on that point. [00:24:23] Speaker 04: Anything further, counsel? [00:24:24] Speaker 00: No, Your Honor. [00:24:26] Speaker 00: Thank you. [00:24:27] Speaker 04: Mr. Murray has two minutes. [00:24:32] Speaker 01: Thank you, Your Honor. [00:24:32] Speaker 01: I would like to address a couple quick things. [00:24:35] Speaker 01: First of all, as Judge Cunningham mentioned, on page 112 of the appendix, the board only makes a finding as to any purported improvement under the ordinary conditions of life. [00:24:44] Speaker 01: While it does articulate the standard it's supposed to meet, it doesn't actually meet that standard. [00:24:48] Speaker 01: It does not make that finding. [00:24:49] Speaker 01: And the Veterans Court actually essentially acknowledges this. [00:24:52] Speaker 03: But isn't our standard of review, I mean, we don't review applications of law to fact. [00:24:59] Speaker 01: But the Veterans Court made this finding in the first instance, which violates Tadlock and Stenson here. [00:25:04] Speaker 01: The Veterans Court found the court can't imagine what the board could have or should have said about work conditions, which essentially acknowledges that the board didn't say anything about work conditions. [00:25:14] Speaker 01: Also, my colleague here pointed to the one sentence in section 112 that starts with, moreover, to the extent the findings were not or do not represent erroneous findings. [00:25:24] Speaker 01: I'd like to point out that if you read that one sentence in context with the page before, the board adopts the November 2021 VA examination. [00:25:33] Speaker 01: And that examination explicitly says, it appears this finding of ankylosis was previously made in error. [00:25:38] Speaker 01: And so it's clear that the entire decision was based on this finding of error in the earlier examinations. [00:25:45] Speaker 01: And again, once things are based on that error, that takes us out of 4.13, and the application of that renders the board's decision void of ab initio. [00:25:56] Speaker 01: I'd like to point out, just summarize, that there are two ways to reduce a rating here. [00:26:00] Speaker 01: There's one way under 4.344 and 4.13 to establish improvement. [00:26:05] Speaker 01: When improvement requires a change, and if we take that descriptive term, ankylosis, out, then there was no, simply there was no change. [00:26:12] Speaker 01: The second route is to establish Q. And essentially what the Veterans Court did was found error, but then use that error to shoehorn it into a finding of improvement. [00:26:23] Speaker 01: So the Veterans Court essentially combined and created this hybrid decision that this court should reverse. [00:26:30] Speaker 01: It's important to note that Q is a much higher burden than just establishing. [00:26:33] Speaker 01: So it's possible, I just may conclude, Your Honor. [00:26:37] Speaker 01: It's possible that if this court reverses, finds the board's decision, should be found void ab initio, it goes back. [00:26:45] Speaker 01: Given the much higher standard of Q, it's possible that while maybe the proponents of the evidence might show he never had ankylosis, maybe they can establish it by Q. [00:26:54] Speaker 01: And so if the board's decision is void, Abney showed Mr. Johnson would get his 40% ratings back until the VA can establish either Q or issue a new rating reduction decision, finding actual improvement based on the overall disability picture of the language. [00:27:13] Speaker 04: Thank you to both counsel. [00:27:14] Speaker 04: Okay, it's just submitted.