[00:00:00] Speaker 03:
1-975-Amezquita versus Collins.

[00:00:05] Speaker 03:
Mr. Niles, please proceed.

[00:00:12] Speaker 02:
Thank you, Your Honor, and may it please the Court.

[00:00:15] Speaker 02:
The Veterans Court erred because Congress intends for 38 USC, Section 1111's language, up noted to mean identifying a defect, infirmity, or disorder that is current.

[00:00:28] Speaker 02:
When as here, a military entrance examination identifies a prior condition as having resolved, that writing's legal effect is not to defeat the very presumption.

[00:00:38] Speaker 03:
Can I just start you from where?

[00:00:40] Speaker 03:
What language are you relying on in the statute or in the regulation?

[00:00:44] Speaker 02:
38 USC section 1111, where it says that a

[00:00:51] Speaker 02:
individual will be accepted into service.

[00:00:53] Speaker 03:
Yeah, it says defects, infirmities, or disorders noted.

[00:00:57] Speaker 03:
That's right.

[00:00:58] Speaker 03:
And you think that means, is that the key to your case here that you think they've misinterpreted it?

[00:01:04] Speaker 03:
So how would you interpret this?

[00:01:07] Speaker 02:
The defects, infirmities, or disorders noted refers then to a current

[00:01:13] Speaker 02:
defect, infirmity, or disorder, or say it differently, a current disability, current medical condition.

[00:01:22] Speaker 00:
What is it in the language that says current?

[00:01:25] Speaker 00:
I mean, it says defects noted.

[00:01:27] Speaker 00:
It doesn't say current defects noted.

[00:01:30] Speaker 00:
So where do you get current from?

[00:01:31] Speaker 02:
Looking in part to this court's case law, including in the O'Brien case, where the language of defects was at issue.

[00:01:39] Speaker 02:
And O'Brien holding that defects are structural or inherent abnormalities or conditions, which are more or less stationary in nature.

[00:01:48] Speaker 02:
Stationary meaning then current.

[00:01:50] Speaker 02:
You cannot have a defect without it being there.

[00:01:53] Speaker 02:
Otherwise, it would be a disease that resolves over time.

[00:01:57] Speaker 02:
And that was in this court's O'Brien case.

[00:02:00] Speaker 00:
disorder, less case law on the... The defect that was noted in this case on the form, the thing that was noted, I'll give you that, just to define any defect.

[00:02:11] Speaker 00:
It was asymptomatic, right?

[00:02:13] Speaker 00:
That's your position, so you say because it was asymptomatic that it wasn't current?

[00:02:18] Speaker 02:
No, Your Honor.

[00:02:21] Speaker 02:
When I think of asymptomatic, it's neither saying that it does not imply that there is a current defect, infirmity, or disorder there.

[00:02:29] Speaker 02:
Rather, there is no symptoms.

[00:02:30] Speaker 02:
Asymptomatic is very literally no symptoms.

[00:02:33] Speaker 02:
And so appendix page 23 exemplifies this.

[00:02:37] Speaker 02:
At the bottom right of that page, there is this call out for foot conditions.

[00:02:40] Speaker 02:
Foot conditions very common for individuals to enter military service.

[00:02:45] Speaker 02:
And you see in this box, it's talking about a normal arch.

[00:02:49] Speaker 02:
Pest cavus are stated differently, high arch.

[00:02:52] Speaker 02:
Pest planus are stated differently, flat arch, low arch.

[00:02:56] Speaker 02:
And so you have there, the examiner's going to circle one of those three options here, normal arch.

[00:03:01] Speaker 02:
There is no arch condition.

[00:03:03] Speaker 02:
And then to the right of that, there's asymptomatic or symptomatic, and the examiner noting or circling asymptomatic.

[00:03:09] Speaker 02:
So it's very possible that that.

[00:03:10] Speaker 00:
What are the concerns I'm having with your argument is this?

[00:03:13] Speaker 00:
OK, in this particular case, the thing that we're arguing about is allegedly being a defect or not a defect is that there was a prior shoulder surgery, right?

[00:03:22] Speaker 00:
So I think to myself, I'm not a doctor.

[00:03:27] Speaker 00:
Maybe sometimes someone having had shoulder surgery before is a defect.

[00:03:31] Speaker 00:
And maybe sometimes something that they had before can be completely solved and is not a defect.

[00:03:37] Speaker 00:
There's nothing in the language of the statute.

[00:03:39] Speaker 00:
It just says defect.

[00:03:41] Speaker 00:
So why isn't it something that's more of a question of fact then for a medical provider or somebody else who's doing this study at the beginning, doing the physical evaluation of the person who's entering the service

[00:03:56] Speaker 00:
Why isn't that person, why isn't this a factual question?

[00:03:59] Speaker 00:
The statute just says defect.

[00:04:01] Speaker 02:
And the Secretary certainly shares that concern and briefed that concern.

[00:04:04] Speaker 02:
Mr. Amoskita's response is that he's not asking this court to play doctor.

[00:04:09] Speaker 02:
He's not asking this court to determine whether he entered into service with a current left shoulder condition, but instead to look at the undisputed words on the pages of appendix page 23 to 27, which are the report of entrance examination and his report of medical history, where a military doctor did examine him and did provide remarks

[00:04:31] Speaker 02:
And in those remarks, so appendix page 23, again, a good example of something noted.

[00:04:37] Speaker 02:
This is within Congress's intent of noted, where one of the items that the military is examining the individual for are marks on the body.

[00:04:48] Speaker 02:
And in this case, the examiner said, yes, you had that prior left shoulder surgery.

[00:04:52] Speaker 02:
You had a scar from that surgery.

[00:04:54] Speaker 02:
You were walking into service with that scar, and we're noting that.

[00:04:58] Speaker 02:
Mr. Amasquita is not here today seeking service connection for that scar from the surgery.

[00:05:03] Speaker 02:
He entered into service with that scar, that pre-existent service.

[00:05:06] Speaker 02:
That was identified and recorded in his examination.

[00:05:10] Speaker 00:
I see what you're pointing at.

[00:05:13] Speaker 00:
I think that's box 44 you're talking about.

[00:05:16] Speaker 00:
But isn't the box that we're focusing on box 77?

[00:05:21] Speaker 00:
on page 825.

[00:05:23] Speaker 00:
Maybe I'm wrong about that.

[00:05:24] Speaker 00:
But that's where it says summary of defects and diagnosis.

[00:05:28] Speaker 02:
So there are boxes 73, 77.

[00:05:31] Speaker 02:
And then there's also, in both those boxes, there's reference to an ortho consult and the remarks from that.

[00:05:39] Speaker 02:
And so looking also at appendix page 26, it's a different form and its response to that.

[00:05:44] Speaker 00:
Which box is the box that the VA relied on?

[00:05:48] Speaker 00:
and that the board relied on?

[00:05:50] Speaker 02:
The box that the Veterans Court relied on was box 77.

[00:05:53] Speaker 02:
Summary of Defects and Diagnoses is its title.

[00:05:58] Speaker 02:
And I understand the Veterans Court to have stopped there.

[00:06:00] Speaker 02:
This box refers to summary of defects and diagnoses.

[00:06:04] Speaker 02:
And the Veterans Court is then presupposing that if you're talking about summary of defects and diagnoses, they are current defects and diagnoses.

[00:06:12] Speaker 02:
Instead of rather information pertinent to a defect or diagnosis,

[00:06:16] Speaker 02:
And here, it matters what words, then, how the examiner describes the condition that they're reporting on in that box.

[00:06:25] Speaker 02:
And so it matters here that the examiner is saying, banker procedure, that was the left shoulder surgery from October 2002, identifying it's from October 2002,

[00:06:36] Speaker 02:
cleared by ortho consult, see attached doc, completely asymptomatic, no physical limitations.

[00:06:44] Speaker 02:
VA also saying NAD on appendix page 20.

[00:06:48] Speaker 03:
So what do you mean?

[00:06:49] Speaker 03:
You seem to be focused on the word current, that it has to be current.

[00:06:53] Speaker 03:
What does that mean in this context for prior surgery on part of your body?

[00:06:59] Speaker 03:
It's cured with the surgery.

[00:07:01] Speaker 03:
You can go on.

[00:07:02] Speaker 03:
But I think all of us who experience some sort of thing, there's the possibility of further aggravation, whatever.

[00:07:09] Speaker 03:
That doesn't mean it doesn't exist, or it never existed, or it's perfect, or it won't suffer aggravation in a way for someone who had never had that problem.

[00:07:21] Speaker 02:
A good example, again, from case law, and this is a Veterans Court case, Crowe versus Brown, C-R-O-D-W-E in the briefing, talks about childhood asthma.

[00:07:31] Speaker 02:
Now, certainly a person who had childhood asthma could then have asthma later in life.

[00:07:37] Speaker 02:
But when there is a notation in the examination report where the doctors are saying had childhood asthma is not present, the Veterans Court is saying, well, that's not noting current asthma.

[00:07:49] Speaker 02:
We're saying that that is resolved.

[00:07:51] Speaker 01:
But isn't there a distinction between something like asthma, childhood asthma, which, as you just said, can be resolved, and a surgical repair, which your client had at the time he entered service?

[00:08:08] Speaker 01:
That surgical repair was current at the time he entered service.

[00:08:16] Speaker 01:
The surgery was done prior.

[00:08:18] Speaker 01:
The injury was prior.

[00:08:20] Speaker 01:
And he was asymptomatic.

[00:08:23] Speaker 01:
But nonetheless, the surgical repair was not resolved.

[00:08:29] Speaker 01:
That was a defect that was noted.

[00:08:33] Speaker 02:
It was a prior condition that was noted, certainly immediately following that surgery.

[00:08:38] Speaker 01:
Well, the prior condition was that he was injured and it required surgery.

[00:08:44] Speaker 01:
Yes, Your Honor.

[00:08:44] Speaker 01:
The condition that was noted was that upon entry of service,

[00:08:49] Speaker 01:
uh... he had a surgically repaired shoulder

[00:08:53] Speaker 02:
If that had been the case, where the military entrance examiner was saying there was something current here, then in item 34- You keep using the word current.

[00:09:03] Speaker 03:
What's something current?

[00:09:04] Speaker 03:
I mean, someone is coming into the military, and they're fit to serve the military.

[00:09:08] Speaker 03:
Nobody is disputing that.

[00:09:10] Speaker 03:
So presumably, they don't come in with a back problem or a shoulder problem that hasn't been repaired, and you can't move your shoulder appropriately, right?

[00:09:19] Speaker 03:
That's not the kind of scenario that arises.

[00:09:23] Speaker 03:
What has to be current?

[00:09:26] Speaker 03:
Pain as a result of the surgery?

[00:09:29] Speaker 03:
The surgery can't be current.

[00:09:31] Speaker 03:
That's the one-off thing, right?

[00:09:34] Speaker 02:
What has to be current?

[00:09:35] Speaker 02:
Some sort of functional limitation.

[00:09:37] Speaker 02:
And it might not rise to the level of being functional limitation that would bar the individual from service.

[00:09:42] Speaker 02:
They can accept individuals with limited duties or full duties.

[00:09:45] Speaker 02:
But where in the statute does it say that?

[00:09:51] Speaker 02:
the language of defects, infirmities, or disorders noted were again defects we know is structural or inherent and then that has to be something current.

[00:10:01] Speaker 01:
The statute doesn't say that.

[00:10:04] Speaker 01:
Does it say current?

[00:10:05] Speaker 02:
The regulation 38 CFR section 3.304 B1 contains the secretary's interpretation of that statute and says that a history of

[00:10:15] Speaker 02:
And I want to make sure I get this right here, so I am going to flip to the language.

[00:10:20] Speaker 02:
History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.

[00:10:29] Speaker 02:
And that's within the context of Section 1111.

[00:10:31] Speaker 02:
So this is the Secretary adopting into regulations exactly what I'm saying here.

[00:10:35] Speaker 01:
And I can see where that regulation would address a situation like in a crow with childhood asthma that had been resolved.

[00:10:44] Speaker 01:
But the situation before us is different.

[00:10:49] Speaker 02:
I find it helpful here for the panel's consideration, Verdin v. Brown.

[00:10:55] Speaker 02:
That's the Veterans Court case that the Veterans Court in this case felt constrained by.

[00:10:59] Speaker 02:
In Verdin v. Brown, an individual entered the military with Hallux valgus.

[00:11:04] Speaker 02:
Hallux valgus is the great toe stemming off from the foot at an odd angle.

[00:11:09] Speaker 02:
And in that case, in Verdin v. Brown, the military entrance examiner says, hey, I see you have this great toe that is stemming off from the foot at an odd angle.

[00:11:16] Speaker 02:
You have Hallux valgus.

[00:11:18] Speaker 02:
but saying asymptomatic.

[00:11:19] Speaker 02:
There's no functional limitation.

[00:11:20] Speaker 02:
We are accepting you here.

[00:11:22] Speaker 02:
That was a current condition, then, Haldix valgus, that was asymptomatic in that case, versus here, the examiner who is looking at, the doctor who is looking at Mr. Almaskito when

[00:11:36] Speaker 02:
entering into service saying that there is no complaints, completely asymptomatic.

[00:11:42] Speaker 03:
Just because some conditions noted as defects may be current doesn't mean, doesn't necessarily exclude everything which is asymptomatic.

[00:11:54] Speaker 03:
I mean, yes.

[00:11:55] Speaker 03:
But how does that apply to this case?

[00:11:58] Speaker 03:
Obviously, in addition to the fact that it's not finding precedent on us.

[00:12:01] Speaker 02:
Oh, yes, Your Honor.

[00:12:02] Speaker 02:
And so Mr. Amiskita had that surgery to correct his shoulder tear.

[00:12:06] Speaker 02:
It was a labral tear.

[00:12:07] Speaker 02:
The surgery corrected the labral tear.

[00:12:10] Speaker 02:
There was nothing left of the label tear after surgery, except the scar, the scar that was noted on the examination form.

[00:12:18] Speaker 02:
I see that in my rebuttal time, Mr. Amos Kietek would respectfully request that he reserve the remainder of his time.

[00:12:23] Speaker 03:
Can I ask you one more question, though?

[00:12:25] Speaker 03:
Where does this take us?

[00:12:27] Speaker 03:
If you were correct, and this shouldn't have been noted, and now he has subsequent problems with his shoulder,

[00:12:38] Speaker 03:
But the doctor says, well, this is an unexpected continuation of surgery he had before that.

[00:12:48] Speaker 03:
Don't change up in the same place.

[00:12:49] Speaker 02:
Potentially, but under 38 USC section 1111, there's two questions then.

[00:12:56] Speaker 02:
Number one, does this presumption of sound condition attach?

[00:13:00] Speaker 02:
And that is what Mr. Amasquita is going for through this appeal.

[00:13:03] Speaker 02:
That relief that remains.

[00:13:05] Speaker 03:
So it's a burden question?

[00:13:06] Speaker 03:
It is.

[00:13:06] Speaker 02:
At that point, the VA would have to show by clear and unmistakable evidence that it pre-existed and was not aggregated by a servicer.

[00:13:12] Speaker 03:
OK, thank you.

[00:13:13] Speaker 03:
Let's hear from him.

[00:13:17] Speaker 03:
Good morning.

[00:13:21] Speaker 04:
Good morning, and may it please the court.

[00:13:23] Speaker 04:
I'd like to start by distinguishing between the factual issues presented by Mr. Amiskita, which are beyond the court's jurisdiction, and the legal issue that was presented to and decided by the Veterans Court and is the only genuine legal issue on appeal here.

[00:13:38] Speaker 04:
The only legal issue is whether a condition can be both current and asymptomatic to be noted for purposes of section 1111, the presumption of soundness statute.

[00:13:48] Speaker 04:
That was discussed, for example.

[00:13:50] Speaker 03:
Are we talking about the definition of defect?

[00:13:55] Speaker 04:
I think that's the statutory language.

[00:13:59] Speaker 04:
So the question is, is this a defect, infirmity, or disorder?

[00:14:03] Speaker 04:
What the board found was this was noted as a defect.

[00:14:05] Speaker 00:
So I think we're focusing.

[00:14:06] Speaker 00:
Can I just clarify here again?

[00:14:08] Speaker 00:
I think you're saying that the legal issue is whether the Veterans Court correctly interpreted defect as including a condition that's not current and asymptomatic.

[00:14:22] Speaker 00:
Is that what you're saying?

[00:14:23] Speaker 04:
Not quite.

[00:14:24] Speaker 04:
Here, the facts show that the defect was current and asymptomatic.

[00:14:29] Speaker 04:
So maybe I'll start with the facts.

[00:14:31] Speaker 04:
What the board found was that there was an asymptomatic defect noted

[00:14:37] Speaker 04:
on the entrance examination.

[00:14:38] Speaker 04:
The board also found that same defect noted upon entrance progressed naturally throughout service, ultimately culminating in the left shoulder sprain that happened near the end of service.

[00:14:50] Speaker 04:
So that's discussed at, for example, page 17 of the appendix.

[00:14:53] Speaker 00:
That progression.

[00:14:53] Speaker 00:
So you're saying it's current, that he had had the surgery, had a labral tear, and then it was repaired.

[00:14:58] Speaker 00:
It was a current condition.

[00:15:00] Speaker 04:
Yes, it was a current and asymptomatic.

[00:15:03] Speaker 03:
So where are we on the legal question?

[00:15:07] Speaker 03:
Tell me where the legal question ends and the fact begins.

[00:15:10] Speaker 04:
Right, so those are all findings of fact.

[00:15:11] Speaker 04:
And so the question of law presented to the Veterans Court is, recognizing this is asymptomatic, can that ever qualify as a defect?

[00:15:20] Speaker 04:
So I'm looking at page four.

[00:15:22] Speaker 04:
Well, actually, it's page four of the Veterans Court decision, appendix page five.

[00:15:27] Speaker 04:
It's the Veterans Court characterizing the arguments made by Mr. Amasquita.

[00:15:32] Speaker 04:
And the statement is, in his view, in Mr. Amasquita's view, a current defect, infirmity, or disorder can't be asymptomatic.

[00:15:39] Speaker 04:
So that was the legal question presented.

[00:15:41] Speaker 04:
And the court said, yes, it can be asymptomatic.

[00:15:44] Speaker 04:
A condition can be both asymptomatic and current.

[00:15:47] Speaker 04:
And Mr. Amasquita now concedes that point.

[00:15:54] Speaker 04:
For example, at page two of the reply brief,

[00:15:57] Speaker 04:
Mr. Amoskita states that Mr. Amoskita understands the parties to agree that the presumption of soundness does not apply.

[00:16:09] Speaker 04:
if the condition is current but asymptomatic at the time of the entrance examination.

[00:16:14] Speaker 04:
So the parties do now agree on the only legal issue that was genuinely before the Veterans Court.

[00:16:21] Speaker 04:
And what's left now is Mr. Amiskita raising the factual question, arguing that his condition was not genuinely current.

[00:16:29] Speaker 04:
But as the board explained.

[00:16:30] Speaker 03:
OK, but is there any legal dispute?

[00:16:32] Speaker 03:
Does the government say that the statute requires that the defect be current?

[00:16:38] Speaker 04:
Yeah, we're not disagreeing that there needs to be a current.

[00:16:41] Speaker 04:
So the issue that Mr. Niles was describing of that 3.304b, the presumption still attaches if there's merely a history of a prior condition.

[00:16:53] Speaker 04:
But in this case, what we have is an asymptomatic but current condition because

[00:16:58] Speaker 04:
The condition was noted as a defect at the entrance exam.

[00:17:01] Speaker 04:
And the board examiner, as discussed at page 17 of the appendix, found that the same condition noted progressed naturally during service and culminated in the left shoulder sprain.

[00:17:14] Speaker 03:
I mean, this law-fact distinction is so hard.

[00:17:17] Speaker 03:
Because part of what you're saying is it's a question of,

[00:17:21] Speaker 03:
At least now, forget what might have been said at the briefs, what you're just fighting over is what the definition of current is.

[00:17:30] Speaker 03:
His definition of current seems to include something that's not asymptomatic.

[00:17:35] Speaker 03:
So isn't it a definitional thing and a legal question as to the meaning of current if we both agree defect has to be current?

[00:17:43] Speaker 04:
I don't think so, Your Honor.

[00:17:44] Speaker 04:
I don't think it's helpful really to get too focused on the word current.

[00:17:53] Speaker 04:
The focus is, was there a defect?

[00:17:56] Speaker 04:
Was the defect in existence?

[00:17:58] Speaker 04:
And that's a factual question.

[00:18:00] Speaker 04:
At the time.

[00:18:00] Speaker 04:
At the time, yeah.

[00:18:01] Speaker 04:
So current, of course, doesn't appear in the statute.

[00:18:03] Speaker 04:
The question is, did the defect exist?

[00:18:05] Speaker 04:
And here, clearly, the defect existed.

[00:18:08] Speaker 04:
It was recorded at appendix page 25 as a defect.

[00:18:12] Speaker 04:
And that same defect progressed naturally during service.

[00:18:15] Speaker 04:
So if we distinguish this from the crow example where there was a childhood asthma, the childhood asthma that existed only in the past, only historically, that could not have progressed naturally during service because it didn't exist at the time that service started.

[00:18:30] Speaker 04:
So in this case, by contrast, we have a defect noted.

[00:18:35] Speaker 04:
at the entrance examination.

[00:18:38] Speaker 04:
And it progressed naturally during service and culminated in the shoulder sprain that Mr. Amiskita is pointing to as the beginning of his current shoulder condition.

[00:18:47] Speaker 00:
Can I ask you a question?

[00:18:49] Speaker 00:
Yeah.

[00:18:50] Speaker 00:
was a little surprised when I heard the emphasis on current today.

[00:18:53] Speaker 00:
I thought that the dispute was, from Mr. Amasakita's point of view, was whether a resolved defect could be a defect.

[00:19:07] Speaker 00:
And I think that at the Veterans Court, it was whether an asymptomatic defect could be a defect.

[00:19:13] Speaker 00:
That's the way I was understanding it.

[00:19:16] Speaker 00:
Do you see a difference?

[00:19:17] Speaker 00:
Do you see a difference between whether something's resolved and whether it's asymptomatic?

[00:19:22] Speaker 00:
And do you think that that's what was raised in the blue brief?

[00:19:24] Speaker 00:
That is the asymptomatic argument?

[00:19:27] Speaker 04:
I think there is a difference.

[00:19:30] Speaker 00:
OK.

[00:19:30] Speaker 04:
I mean, the resolved issue.

[00:19:32] Speaker 04:
The resolved issue, I think, the resolved question, I think, is what was raised in the blue brief.

[00:19:37] Speaker 04:
And then the reply brief, I think we see more

[00:19:40] Speaker 04:
a bit of a change of conceding that an asymptomatic condition can be current.

[00:19:44] Speaker 04:
So I think there's been some changes in terminology, but the only thing... Do you think resolved and asymptomatic mean the same thing?

[00:19:51] Speaker 00:
No.

[00:19:51] Speaker 00:
Okay.

[00:19:52] Speaker 04:
Yeah.

[00:19:52] Speaker 04:
No, and that gets into the factual question.

[00:19:55] Speaker 04:
The only thing straightforwardly

[00:19:57] Speaker 04:
presented here on the faxes, there's no dispute this was asymptomatic.

[00:20:01] Speaker 04:
So when a appellant comes in, they can make legal arguments based on the facts found by the board, but what they can't do is argue for a deviation in the facts that were found.

[00:20:11] Speaker 04:
So here the facts are this was a

[00:20:13] Speaker 04:
asymptomatic condition that progressed naturally throughout service.

[00:20:17] Speaker 04:
So based on that, we know what was present at the beginning of service.

[00:20:20] Speaker 04:
It progressed naturally throughout.

[00:20:22] Speaker 04:
So those are the facts that we're dealing with.

[00:20:23] Speaker 04:
Those can't be disrupted.

[00:20:25] Speaker 04:
The question of whether something is then current, whether it's resolved, those don't appear in the board findings.

[00:20:31] Speaker 04:
So those factual questions cannot be the basis of a legal ruling by this court.

[00:20:36] Speaker 04:
The court doesn't have jurisdiction to decide them.

[00:20:40] Speaker 04:
Well, maybe.

[00:20:41] Speaker 03:
I mean, maybe if he appropriately had raised it before the board or the CABC and they just chose not to speak of it, that doesn't preclude our reviewing that issue on appeal, right?

[00:20:53] Speaker 04:
Yeah, if there was a concern that the board didn't address something that it had to address, so that would be a different situation.

[00:21:02] Speaker 04:
That's not what's presented here.

[00:21:04] Speaker 04:
The only issue, and I think the Veterans Court does a good job describing the issue at page five of the appendix and describing the legal issue presented, can something be asymptomatic and current.

[00:21:16] Speaker 04:
and that is now conceded.

[00:21:18] Speaker 00:
Now, can I ask you, my understanding is that parties can't concede legal points.

[00:21:24] Speaker 00:
I hear that you're saying they agree, but they can't concede that.

[00:21:29] Speaker 00:
They can't.

[00:21:30] Speaker 00:
Law is not something parties can concede.

[00:21:32] Speaker 00:
The court still gets to address that.

[00:21:34] Speaker 00:
I'm not saying that the court necessarily got that wrong, but I just want to point that out.

[00:21:40] Speaker 04:
You agree with me on that, don't you?

[00:21:44] Speaker 04:
he concedes it, the legal issue is still something the court has jurisdiction to decide.

[00:21:50] Speaker 04:
But I think it is important that he no longer is arguing that just because a condition is asymptomatic that it necessarily cannot qualify for purposes of being a defect, infirmity, or disorder for purposes of the perception of soundness.

[00:22:07] Speaker 04:
And the last point I'd like to make, unless there are any further questions, is just a distinction between some of the case law discussing the congenital or developmental defect in section 3.303C.

[00:22:17] Speaker 04:
Some of the cases involve that, including O'Brien and Terry.

[00:22:22] Speaker 04:
And that's a specific phraseology that doesn't apply in interpreting defects, infirmities, and conditions.

[00:22:28] Speaker 04:
In 1111, the presumption of soundness statute, for that issue, the best case to look to is the Wagner case.

[00:22:35] Speaker 04:
which characterizes defects, infirmities, and disorders as simply meaning conditions.

[00:22:43] Speaker 00:
Now, Mr. Amazkita relied specifically on 3.304B1 in the first sentence of that.

[00:22:52] Speaker 00:
What is your response to that sentence he quoted about the history of pre-service conditions?

[00:22:57] Speaker 00:
And what impact does that have on this case at all?

[00:23:00] Speaker 04:
It doesn't apply here because factually, this case doesn't involve a condition that was merely a history of pre-service condition.

[00:23:07] Speaker 04:
So that, I agree with Mr. Omiskita's counsel that a good example of that is the Crowe case.

[00:23:14] Speaker 04:
That was a Veterans Court case where that court does have jurisdiction to consider clear error of fact and factual question.

[00:23:20] Speaker 04:
So that really presents a factual question.

[00:23:22] Speaker 04:
Is something purely history?

[00:23:25] Speaker 04:
In this case, we have factual findings.

[00:23:26] Speaker 04:
The defect was present at entrance.

[00:23:29] Speaker 00:
Progress naturally.

[00:23:29] Speaker 00:
I thought maybe he was trying to rely on this sentence to try to show, to support his interpretation of the statute.

[00:23:36] Speaker 00:
And so do you think this sentence in any way supports his interpretation of the statute?

[00:23:41] Speaker 04:
I think it does not support his interpretation regarding asymptomatic, because that would have a very odd result where, even if something is, like in this case, even if something, the same condition is current and asymptomatic upon entrance, but under Mr. Amaskita's reading, that could not, the presumption of soundness would still apply, and yet the same condition that has progressed naturally, even if still asymptomatic, could still be a disability, because a disability can be service-connected,

[00:24:10] Speaker 04:
Even if it's asymptomatic, and we cite a few cases like that, the early case in the Veterans Court is an example of that.

[00:24:16] Speaker 03:
What if somebody comes in and they've had surgery on an injury and they have every doctor corroborating on their discharge papers, this has been cured by the surgery, it's back to new, just as if it had never happened, and we have no expectation that it's going to cause further problems in the future?

[00:24:32] Speaker 03:
Would that be a current defect?

[00:24:35] Speaker 04:
And that would be a factual question.

[00:24:36] Speaker 04:
So in the hypothetical in which there was a prior medical operation, and it was completely like new.

[00:24:46] Speaker 04:
There was no expected progression.

[00:24:48] Speaker 04:
There was no current issue defect at all.

[00:24:51] Speaker 04:
In that case, it would be impossible for an examiner to also find that that non-existent condition progressed naturally throughout service and resulted in a disability.

[00:25:03] Speaker 04:
It would not exist.

[00:25:05] Speaker 04:
So in that scenario, it's a factual question for medical providers.

[00:25:10] Speaker 04:
Is there a defect?

[00:25:12] Speaker 00:
In that scenario, is it your position that that wouldn't be noted in box 77?

[00:25:17] Speaker 04:
Right, if there is no defect, then it shouldn't be noted in the defect section.

[00:25:22] Speaker 04:
And that was true in the Crow case, where there was a childhood asthma example.

[00:25:26] Speaker 04:
That childhood asthma was not mentioned in the defect section.

[00:25:29] Speaker 04:
It was mentioned in a history section of prior issues.

[00:25:33] Speaker 04:
So for those reasons, we would ask the court to dismiss in part the factual arguments raised by Mr. Ames-Kita, and otherwise to affirm the veterans.

[00:25:43] Speaker 04:
Can I?

[00:25:45] Speaker 03:
What if you get an ailment and it's an indication you're told, okay, we've resolved this, but we note that in your genetics, there's a predisposition to a susceptibility to infection or whatever.

[00:26:01] Speaker 03:
Is that the kind of thing that would be a defect that

[00:26:07] Speaker 04:
So if I understand that I'm hypothetical, you experience some illness or injury.

[00:26:15] Speaker 03:
And that's been recovered.

[00:26:16] Speaker 03:
But you've been diagnosed as having a kind of pre-existing susceptibility.

[00:26:22] Speaker 04:
Right.

[00:26:23] Speaker 04:
So, you know, in that scenario, again, there's the medical element, and I won't get into the medical piece.

[00:26:28] Speaker 03:
I know we all can't get over one and we'll go to medicine.

[00:26:32] Speaker 04:
So, the link that you've identified there between the injury and then also maybe a congenital or developmental element,

[00:26:41] Speaker 04:
could lead to a question about application of 3.303C, because that specifically involves congenital or developmental defects.

[00:26:49] Speaker 04:
And there's been a lot of ink spilled about the meaning of that, because it specifically is mutually exclusive with the meaning of a disability.

[00:26:56] Speaker 04:
So there's been questions of, is something a congenital or developmental defect, or congenital or developmental illness or disease?

[00:27:04] Speaker 04:
So I think that would lead in that direction.

[00:27:06] Speaker 04:
It would be a factual question based on that.

[00:27:11] Speaker 04:
That certainly is not what we have here where it was a defect noted and it progressed naturally throughout service.

[00:27:17] Speaker 03:
Could I just ask one more thing, because you're much more expert on these cases to me.

[00:27:21] Speaker 03:
It seems to me that in some certain circumstances, it may be advantageous to the veteran to have something noted to the, well, he's not a veteran then, in the defect section.

[00:27:31] Speaker 03:
Because it would seem, and then that's the hook for aggravation, which may be easier in some circumstances to establish than service connection, direct service connection.

[00:27:42] Speaker 04:
Yeah, and certainly in this case, the factual question before the board was, was there an aggravation?

[00:27:47] Speaker 04:
Was there aggravation shown?

[00:27:49] Speaker 04:
And under section 1153, aggravation is presumed unless there's a finding that the condition progressed naturally.

[00:27:59] Speaker 04:
So in this case, it did progress naturally, but I take your honest point that that presumption would then still apply as aggravation.

[00:28:07] Speaker 03:
Thank you.

[00:28:08] Speaker 04:
Thank you.

[00:28:18] Speaker 02:
Thank you, Your Honors.

[00:28:20] Speaker 02:
Just briefly, I believe that I keep hearing reference to this question of fact versus question of law.

[00:28:26] Speaker 02:
And I believe that the Secretary's position results from presupposing at some level what the Secretary sets out to prove, where the Secretary says, because there is something said in the military entrance examination, that must be noting a defect.

[00:28:44] Speaker 02:
And that leads to this bizarre twilight zone, where if the

[00:28:48] Speaker 02:
entrance examiner had remained silent.

[00:28:51] Speaker 02:
Mr. Almasquita reported this history of left shoulder condition, history of left shoulder surgery to correct it.

[00:28:59] Speaker 02:
And now we're expecting an examiner to say nothing about that at all.

[00:29:03] Speaker 02:
That's not what the military does.

[00:29:05] Speaker 02:
When it's receiving these reports of prior conditions, it's instead examining the individual who wants to serve in our military to see what, if any, limitations are, can they be accepted into service.

[00:29:15] Speaker 02:
And so, of course, the examiner is going to say something about it.

[00:29:18] Speaker 02:
And here, the question is not whether Mr. Amazqueda entered service with a current defect, but instead, looking at the words that the military examiner wrote, appendix page 23 to 27, does that then fit within Congress's intent in section 1111 to constitute noting a defect?

[00:29:44] Speaker 02:
Judge Prost, you asked a question about a genetic predisposition being noted as a defect.

[00:29:48] Speaker 02:
I believe you have anticipated what is going to be a very interesting issue over the next decades of Veterans fall.

[00:29:53] Speaker 02:
It's the Veterans advocates are at the position that no.

[00:29:57] Speaker 02:
A genetic predisposition remains a mere predisposition.

[00:30:00] Speaker 02:
predisposition unless triggered by an in-service event.

[00:30:04] Speaker 02:
If triggered by an in-service event, it's the in-service event that causes what then the disability is that develops later.

[00:30:12] Speaker 02:
But that again is probably getting ahead of ourselves over the next decade of practice.

[00:30:16] Speaker 02:
I'd be pleased to address any additional questions.

[00:30:19] Speaker 00:
I have one question which is I heard the VA lawyer say that

[00:30:28] Speaker 00:
the Veterans Court found that the defect when it was noted was current.

[00:30:35] Speaker 00:
And I want to know what your view is on that.

[00:30:37] Speaker 02:
My understanding is that that was a reference to a passage in the Veterans Court decision where the Veterans Court judge was asking, hey, what more would you want here in terms of noting a disability than in this item 77, the summary of defects and diagnoses

[00:30:55] Speaker 02:
describing a condition.

[00:30:58] Speaker 02:
And what I would want is for those wards to say that there is a current condition, as opposed to what happens here, where the military entrance examiner recognized the October 2002 surgery and says, cleared by ortho consult, see attached documents, completely asymptomatic, no physical limitations.

[00:31:17] Speaker 02:
And then that ortho consult note saying, OK, since that surgery, no complaints,

[00:31:22] Speaker 02:
full ROF.

[00:31:23] Speaker 00:
What I hear you doing is challenging a potential finding.

[00:31:28] Speaker 00:
I want to know if you think the court found it.

[00:31:30] Speaker 00:
I'm looking at the opinion, like, for example, at page A5, when it identifies what the legal issue is, it says, kind of key fact.

[00:31:39] Speaker 02:
To the extent that the Veterans Court afforded to make a finding, it was pursuant to a misinterpretation of the statutory language of defects noted.

[00:31:49] Speaker 02:
And because it is pursuant to a misinterpretation of the statutory language, it warrants being set aside and the case remanded for additional Veterans Court proceedings.