Third case this morning is number 1371-24, the board versus McConaughey. This is Drain. Thank you, honor and may I please support my name is Brian Anderson. I'm behalf the appellant from the Cache Joint Board who has recently substituted for the veteran rule-burned daily. The issue today is whether Mr. Daly is impelled to notice regarding the negative determination as to his credibility by the board in the forced instance, or alternatively whether the board was in the least required to discuss whether Mr. Daly was prejudiced without that notice. Did I ask you Mr. Daly to testify for the board in this case, right? That's correct
. Are you suggesting that the board isn't the appropriate person to assess for the ability as somebody that testifies the board in the first instance? I am not. The issue is we have no, and we've fully recognized that its inherent is both RO and the board to assess the credibility and the board does not have to determine credibility or pre-adjudicated before it makes a final decision. The issue today is whether his credibility was notified at any point in time before the board whether it was going to be adversely decided against him. The basis of our argument is basically to recognize that somebody comes to testify to the board and the board decides, you know, we don't think that's very credible based on that record of it. The board has to issue a notice and say we didn't find your testimony credible, given another shot. No, we don't think the board have to do anything. When the decision comes up to the board wants to make a decision ultimately on the merit, all we're asking is for the board to engage in the inquiry on whether the better it was, maybe during that hearing, maybe at the regional office, maybe elsewhere. Let's assume for that hypothetical that they don't help him anywhere where our clinic shows up at the board that they're not obligated to believe him
. And then they decide when they go back in, adjudicate the clients that they don't entirely believe him. Then do you think they have to send out another saying we don't believe you? No, we do not believe that. That's not exactly what you're saying. You do not believe that there is any sort of notice that the court notice required. All we're asking, we're not even believing that the regional office where anyone below necessarily has to do anything. All we're asking is for the board to engage in the inquiry on whether there would have been notice or whether there's even not notice whether the veteran was prejudiced or not receiving that notice. So in the hypothetical it's very well before he could determine the veteran in this case. He was very aware of his credibility with that issue
. We were questioning it and he had an opportunity to defend his credibility at various stages in this appeal. All we're asking for is for the board to engage in that sort of inquiry going forward. The fact that assumes that there's an obligation to provide notice because if there wasn't then why wouldn't the re-ename for it? Right, so we're attempting to extrapolate this fair and a thing for a, from essentially the underlying VA of due to care scheme. The different statutes and regulations that really establish all the procedural requirements for the veteran and to protect his rights of full and paracistists. That's included the various duties to notify but it's also inherent in this pro-veter and VA system. It's also the duties to, for example, by the hearing for certain duties within the hearing by the hearing officers. There's also general duties to assist. Hence the entire scheme including the issuance of the statements of the cases was the regulations and the statutes that are for that the statement of cases should be completed enough to allow the opponent to present rights and oral arguments
. The evidence and of course any appeal from that statement of the case that appeals to set up specific allegations related to the specific items in the statement of the case. So what all these notices in particular are doing their tongue of veteran very precise basis of the division and narrowing his response to those basis. So conversely he's not aware that his credibility is being questioned below. Not being narrowed he doesn't have the opportunity to obviously know that and respond to that. By the time he reaches the board he was lost with opportunity to defend his credibility and given the nature of the veteran's court review overboarded decisions it's very hard to do it continuing to do it on appeal. We cited similar cases that extrapolate this fairness and query from the underlying material to schemes. Two examples. One is submerge the fair box of doctrine
. We would not require anything to be done in any subalong. We would like it would be ideal if the regional office or some point away told the veteran that his credibility is being questioned or that in this case they accused him of changing his story that the hearing loss of service. It would be nice if they would tell him that but we're not even requiring that. Again all we're requiring is for the forward to engage in a simple fairness and query, deciding whether he was notified for XYZ reason or even if he wasn't whether there was prejudice. He just said to me we're not having them do anything to each level. That's how you begin your answer. We're not requiring the regional one. We're not
. I said no go ahead. I said what would you have to do with each level the response one we wouldn't have to do anything to each level. Our argument is not based on forcing the regional office on the levels below the board to necessarily do anything. I would like that but you wouldn't have to board if it's going to not believe somebody's story. We don't believe your story and you have an opportunity to respond or say we don't believe the story and it doesn't matter what other testimony records not going to change. All I would like to do is consider whether there was notice below and it doesn't mean the board had an issue and considered that there was no obligation to provide notice. We do think the obligation to provide notice is there when a question is not addressed by the regional office board. So you do think there either has to be notice or finding notice is unnecessary and that if they don't do either of those things it's reverse layer
. If the board doesn't address it doesn't engage in that inquiry and that's what the board finds and yes it should be the notice we run from the high. So you are opposed to imposing an additional obligation on the board every time it doesn't believe somebody's story. Any time that doesn't believe me is what he's story and then it's not an intuitive work story function that people understand that when there is a bunch of different evidence the board makes a decision based on a laying of that. It is in the air before the board and again the question is not in credibility to a lay person is in the air but we really have to focus on board just the ability to address it. Right what he just really turns on is the one board would your plan have done he got up and he touched the part of the board here's my version of the events. If the board said we don't believe you what would he expect my version of the events is true I mean he testified presumably under or even if he didn't we assume you took the truth are not sure what else it would add if the board that we didn't believe you beyond and they said well you should really should believe me I'm telling the truth. Well I mean it was and that hypothetical come up on you know why again we're not requiring the board to to a judge and there for the flyer why don't you believe me what you said the point to indicate the story of opinion here why they didn't believe you but it's for what's inconsistent with the actual facts for record. And in our identity can you right and argument is that better never really have the opportunity to know that they're telling him that he's changed the story until the board said it did
. But the better knew you change the story it's that noise versus gradual increase well he knew that after the board well he's the one that told the two different stories well he didn't connect it up but certainly he's the one telling the different story. Well I mean at least in the knowledge of what he's telling the R on the board. Right. Our talent I mean our identity as we go back in fact he's still maintain that he did not change the story and that he because he's not something that's before us. Right. You have to accept the words and the courts finding that he's in this story. Right. But argument is that just again going back he never had the opportunity to defend his credibility when he heard that for the first time by the board on remain as a pertain to his changing story
. We. Similar cases from this scheme that the prior this notice or opportunity one was the fair process doctrine as veteran score down in server. That court in that case the better score. Found that the board was authorized rely on new medical trees evidence because of the very underlying being a due to the scheme and regulations and statutes. There must be notice an opportunity provided every step and therefore that was needed and their case this court reiterated those special principles in the spring court case. And I started in our briefs in case we rely on to demonstrate an application of the faith art as demonstrating the reason for this fairness and query was found in for an art versus breath. In that case there is for found that due to again to the money for seasonal state art and was to essentially all of that use regulations that are very pro veteran. Very very very friendly in the eight system again notice an opportunity to every stage there's a possibility at least the possibility that prejudice was raised when one question that hasn't been started below and firstly that that is low
. It's that in the first instance and that's all we're essentially doing today is trying to extract the ad in fairness and query the client to this case here. So any further questions I will reserve my time for about. Thank you. I'm not going to either get a matter of view or explain why the failure to do it was almost there. It seems like you might have a legal argument why that's not appropriate but it's a jurisdictional argument that's certainly. Everything that comes in front of us you know there's no access and that that when you have a hammer every problem is a meal and for the government every problem is a fact question over which we have no jurisdiction. It judges. We're sure to have 7104A it's a legal question why can't you know why do you always say you can't hear it why don't we just say we should win. Well let's turn it to the merit then. May there's something in the checklist that you have to raise the jurors. And on the merit this the board. On the merits the board does have a general obligation to assess the credibility and the frozen value of the evidence in the first instance. And here this is this is what the board did when it's a question Mr. Daly's credibility. This is not a situation like Bernard or just a bit disabled American veterans in which new and material evidence is being presented to the first time that has not been dissolved by the RO below. This is the same record that was essentially before the RO was before the board and the board complied with his obligation to assess Mr
. Well let's turn it to the merit then. May there's something in the checklist that you have to raise the jurors. And on the merit this the board. On the merits the board does have a general obligation to assess the credibility and the frozen value of the evidence in the first instance. And here this is this is what the board did when it's a question Mr. Daly's credibility. This is not a situation like Bernard or just a bit disabled American veterans in which new and material evidence is being presented to the first time that has not been dissolved by the RO below. This is the same record that was essentially before the RO was before the board and the board complied with his obligation to assess Mr. Daly's credibility. I don't think it's the case here but the practice of the board allows live testimony from the veterans does raise me an interesting question under that to review thing and that if the veteran comes in and raises in his or her affirmative testimony a new issue for the first time. What does the board do can they go ahead and and divide that in itself. Is there her credibility or do they move the subject back down to the RO because it is an issue. And certainly there will be situations where new material evidence is presented that would require remand down to the RO but in this situation we have two accounts for Mr. Daly himself about what occurred regarding his hearing loss. And there is nothing new that he necessarily would be able to add to these two accounts. He could have a third one but at this point we have two inconsistent accounts in the record
. Daly's credibility. I don't think it's the case here but the practice of the board allows live testimony from the veterans does raise me an interesting question under that to review thing and that if the veteran comes in and raises in his or her affirmative testimony a new issue for the first time. What does the board do can they go ahead and and divide that in itself. Is there her credibility or do they move the subject back down to the RO because it is an issue. And certainly there will be situations where new material evidence is presented that would require remand down to the RO but in this situation we have two accounts for Mr. Daly himself about what occurred regarding his hearing loss. And there is nothing new that he necessarily would be able to add to these two accounts. He could have a third one but at this point we have two inconsistent accounts in the record. Mr. Daly had an opportunity to testify to the board regarding any additional information he may have had and on a keel nothing else has been pointed to that would explain the way that it can happen. So if the court is no further questions we will rest on our brief. Thank you. Thank you. Mr. Anderson. Thank you
. Mr. Daly had an opportunity to testify to the board regarding any additional information he may have had and on a keel nothing else has been pointed to that would explain the way that it can happen. So if the court is no further questions we will rest on our brief. Thank you. Thank you. Mr. Anderson. Thank you. I would just like to reiterate that we believe that there is jurisdiction here or something to interpret 7104A whether credibility is a question or attempting to interpret whether the relevance of state cards requires such a certain inquiry. And we are not simply saying that we are not sure of the applied to this case. We believe that there is a support for those that the legal reasoning and underlying premises and we are not just applying to this case or in the United States. My problem is in effect, as soon as you are saying is that the RO or any one of the higher levels should be saying you are getting warmer and you are getting colder. That is we are thinking that you are not telling the truth. That is an adversary proceeding. I mean admittedly it has got a thumb on the scale but nevertheless the tire of that gets two sides to the store. The tire of that does get two sides but we will just agree that it is not an adversary just pursuing the entire purpose of the fair as you might understand it
. I would just like to reiterate that we believe that there is jurisdiction here or something to interpret 7104A whether credibility is a question or attempting to interpret whether the relevance of state cards requires such a certain inquiry. And we are not simply saying that we are not sure of the applied to this case. We believe that there is a support for those that the legal reasoning and underlying premises and we are not just applying to this case or in the United States. My problem is in effect, as soon as you are saying is that the RO or any one of the higher levels should be saying you are getting warmer and you are getting colder. That is we are thinking that you are not telling the truth. That is an adversary proceeding. I mean admittedly it has got a thumb on the scale but nevertheless the tire of that gets two sides to the store. The tire of that does get two sides but we will just agree that it is not an adversary just pursuing the entire purpose of the fair as you might understand it. That is why there is a thumb on the whole system is designed that way. That is the whole one way we go to the system. I realize it is an exception right there but nevertheless there is a tire of that who hears evidence and makes a determination based on that fact and to that extent it is a traditional evidence that we are stating. The tire of that is saying well your evidence is good enough. It looks like you are lying when you tell us something. It is strange meeting in Congress. I would say given the thumb on the scale I would say it would not be. I would say he needed it
. That is why there is a thumb on the whole system is designed that way. That is the whole one way we go to the system. I realize it is an exception right there but nevertheless there is a tire of that who hears evidence and makes a determination based on that fact and to that extent it is a traditional evidence that we are stating. The tire of that is saying well your evidence is good enough. It looks like you are lying when you tell us something. It is strange meeting in Congress. I would say given the thumb on the scale I would say it would not be. I would say he needed it. He needs to mean that trying to help the Bells of facts was good. But he did not know his evidence as a user practice right because he lost the RRO. He had a claim intended that through the RROs in France because they did not believe that the service connected. The fact that there was record testimony from him that it was. What more does he need to know that his testimony has been projected? I do not believe that it was that scenario. It is clearly if they had accepted his testimony that it was connected to a service who had been in France. There are many things that he needs to show proof. He needs to obtain medical evidence
. He needs to mean that trying to help the Bells of facts was good. But he did not know his evidence as a user practice right because he lost the RRO. He had a claim intended that through the RROs in France because they did not believe that the service connected. The fact that there was record testimony from him that it was. What more does he need to know that his testimony has been projected? I do not believe that it was that scenario. It is clearly if they had accepted his testimony that it was connected to a service who had been in France. There are many things that he needs to show proof. He needs to obtain medical evidence. A lot of medical evidence is based on his credibility. I do not think it was that narrow and it was not sufficient enough to notify him that his credibility has to have an impact. Even if we agree with you that they did not say we find you incredible, they at least said we do not find this service connected. It was clear that he had testified that it was service connected. They did that. They rejected that testimony. He knew they rejected it. It is generally that and it is basically his general claim though
. A lot of medical evidence is based on his credibility. I do not think it was that narrow and it was not sufficient enough to notify him that his credibility has to have an impact. Even if we agree with you that they did not say we find you incredible, they at least said we do not find this service connected. It was clear that he had testified that it was service connected. They did that. They rejected that testimony. He knew they rejected it. It is generally that and it is basically his general claim though. Not necessarily a Sufi burial. So now we started here. This is where it seems like your physician gets really problematic in that it sounds like the logical result of it is whenever the RRO or the board reject particular piece of evidence that is favorable to the veteran, they have to tell him or her why. I would not characterize that. How do you think how the argument you are making? A interpretation resolves around what is the question. What is the question in the matter? The question in the matter is something that is a theory to the decision. There could be a lot of things that he says that is favorable in his view. If it is not necessary to decision, it does not necessarily need to be addressed
. Not necessarily a Sufi burial. So now we started here. This is where it seems like your physician gets really problematic in that it sounds like the logical result of it is whenever the RRO or the board reject particular piece of evidence that is favorable to the veteran, they have to tell him or her why. I would not characterize that. How do you think how the argument you are making? A interpretation resolves around what is the question. What is the question in the matter? The question in the matter is something that is a theory to the decision. There could be a lot of things that he says that is favorable in his view. If it is not necessary to decision, it does not necessarily need to be addressed. So they have to address any critical piece of evidence and say, well we do not believe in that. That is our deal. That is the point. They know what is critical or not. I would be going to come up and tell me that every piece of evidence that he said was critical and that he loses his claim and that they made an error because they did not address it. What? For God's sake, what I say is that it is an extremely mean of security. I understand, but it sounds like the burden you are trying to impose upon a board is incredible. Every time we get evidence that an A is important veteran, if the board or the RO doesn't accept it, they have to specifically explain on each piece of evidence why they are not accepting them and get them an opportunity to be arguing
. I believe it is just only issues that are necessary to decision that supported by Section 511A as well as the OZC opinions, which really broadens scope of what a question is and narrow it and consider it to be arguments subargument and in laws and regulations and regulations. Of course, it is a question of law too. Thank you. Mr. Trans, I think we are a very time thank you. Thank you. Thank you