this daily welcome back to the court and morning to you learning please proceed and i would like to express the thanks of the court for the pro bono efforts of your colleagues in representing mr characterized as non evident ronna resubmit that that is an interpretation of fifty one o seven be interpreting a evidence and excluding the opinion of the examiner in this case because the examiner cannot run or an absolute opinion on so we shouldn't be talking about exclusion is plainly part of the record plainly was allowed in in these proceedings before it got to the veterans kruk your honor but the veterans court characterized it as non evidence so when it came to balancing the arguments under the doct aqua pose and looking at the positive and negative evidence the examiner's report which was the only medical report in this case was viewed as not evidence to be balanced under the doctrine of acrophobia but isn't this just like  board must be considered all evidence but i'd submit in this case that it's actually more than semantics that it actually is substance once you look at the record in this case and that it's actually further evidence of mr famous case in conjunction with the hogan case further so it medical report can never be evidence service connection i would submit that is what she's saying or are you saying it's always evidence we're just in a case like th a government emphasizes the wording of the question to the doctor and if her response was literally keyed to the words of the question it's not so live heavily on the failure of the marine corps when mustering faded out after two years of combat service in vietnam to give him a proper year ted and in contrast to the entry exam that had a or on the way out they just used a very whispered test and the examiner seemed to say therefore i can't compare numbers going in with numbers coming out therefore i can't figure out whether the cause was something that happened during the two years of tour of duty well your honor i suspect that there is no other suggestion in the record of any other cause for his hearing loss other than noise it's very well knowing that noise  is why now people wear the hearing protection and the examiner identify two sources in service and out of service and with the examiner it said is because of the out of service out of service noise she couldn't just state definitively it was due to in service we submit that the positive evidence in the record is the fact that he was exposed to noise service no it was experience exposed to loud noise in service as well as and the negative evidence being the exposure out of service and the examiner statement that due to the post military noise exposure cannot definitively state that it was in service but with you you seem to feel there was evidence in service exposure but in the an error because in both of the examiner's report the examiner notes that the appellant had been exposed to lousy noise from explosions from working in an airplane open airplane and from a rockets and that the  itself noted that that's not inconsistent with the veteran service the fact that he was exposed to such loud noise being an in service combat veteran and so the statement that there is actually most evidence in the record connecting him to service we would disagree with and say that the examiner has not been able to come to an opinion so there is no evidence in terms of opinion however i recognize the factual record that is recited in the report i can't come to that opinion so there's no opinion there but that the court in the hypothetical was going on said however i recognize the other evidence in the record and that's noted in the report think that i think in that circumstance that perhaps there wouldn't be but what we have here is the veterans court actually giving its interpretation of the statute and how it's going to characterize and what it's calling evidence that it will balance within the benefit of the doubt doctrine fifty one  b and by characterizing that as it did in the hogan case which i think is is shows more than the fact that it's just troubling language that it's actually showing and the narrow interpretation that the betterments court is taking and the result is that the benefit of the doubt doctrine that was supposed to provide a benefit to veterans that in close cases that it would go to the veterans it really is becoming a loser and because in the situation is if if the examiner in this case could conclusively had to term and that the court actually didn't consider any of the examiner's report on the issue up next but i think there's also the issue of i think the government raising their brief as to whether the court was referring to just the examiner state examiners conclusion or my own report and we would submit that even if it's just an examiners conclusion that that statement isn't solved evidence because examiner had said but due to the absence but due to the better until history of post military noise exposure they couldn't determine the actual source as between the two sources and we would submit that that in and of itself is evidence and demonstrates that the evidence in the case is an echo you're saying if an examiner is asked to come up with an opinion and he or she comes back and says i i can't i can't reach an opinion i can't come to conclusion on the question they asked me you're saying that's evidence evidence because in this case it shows that there's only two sources which that they've identified for his hearing loss in service or post service noise exposure the fact that you couldn't determine between the two suggest that the evidence is as likely as in service as out of must consider all evidence the examiner's report regardless of whether the examiner actually rancorous an ultimate opinion on the issue of nexus and that there should be remanded to the veterans court and be required to comment to consider the entire examiner's report whether so the court properly applied the law to the facts or weighed the evidence properly and that's not something we could decide well let's make your honor that the veterans court didn't actually the interpretation that you set forth and hogan and so therefore they had actually as i'm hogan said for another iranian interpretation of the statute and i would agree that that had hogan this court made clear that they should consider all evidence and i think that this in this case the vetera court interpreted it incorrectly and did not consider all of them so then are you saying that in talking about the examiner's report as nine evidence that the veterans co necessarily treating it as something that should have been excluded yes your honor i think that they were saying that and when we look at the balance of the positive and negative evidence on the issue of service connection  they they said that was not evidence to be a way that it was not evidence within within the balancing and so that therefore there was actually no evidence on the point of sort of connection it please the court just fewer procedural questions we have a four page single judge non presidential decision opinion by the court of a those that mean we are allowed to search the board opinion in trying to determine whether there was a legal error with regard to excluding evidence characterization wouldn't that authorize us to look at the word opinion and not just the court opinion in order to see whether there was a legal e oh yes i think it would be appropriate to look to the board opinion which is even in greater detail and factual detail our brothers and then the then let me ask you a couple questions about the board opinion in the opinion the critical sentence under the heading findings of fact it really should be singular because there's only one finding of fact which reads as follows the veterans by a lateral hearing loss is first documented years after service and has not been medically related to his service now when the reasonable interpretation of the the that there is no medical support or service connection which of course is correct because the examiner wasn't able to render an opinion but couldn't the same sentence the particular the last half of it be interpreted to reflect a belief on the part of the board member that only medical evidence could prove service connection in this case and that therefore the inconclusive opinion of the medical examiner was fatal to the veteran's claim despite his own testimony and despite the testimony of friends and relatives and coworkers and so forth and right well they're going to be read that way nexus to the service center where we all agreed there's no medical nexus we all agree with that the examiner said i can't tell so we can inconclusive so there's no medical evidence but there's a lot of lay and my concern is that it looks to me maybe almost all this what i want your help a look to me like the board member thought that only medical evidence could suffice that lay evidence could not  that no your honor is really what's going on here is that the well it in the court considered all of the evidence including the medical examiner's report which is all they need to do to meet the one of the seven b but there was no it's the one up because the medical examiner i know we all agree the medical examiner it doesn't say anything but there's a lay evidence from the mother and the brotherhood others that when he went overseas to vietnam his hearing was fine and as soon as he came back we had to shout because he couldn't hear us well this is exactly the kind of case where the court has no jurisdiction because can't count because there are just lay people now in some circumstances that probably exactly right that only a medical examiners evidence would have any competence but in the case of hearing loss it seems to me a good argument could be made that that's quite different that even lay people can tell whether their brother can hear them in a conversation or not now compared to a couple years ago i think this is my answer in part response to the argument made discounted and the statement is they're not experts and therefore their opinion is zero but it doesn't take expertise to detect hearing problems we all have well in this case and as if this is especially the role of the fact finder to determine whether the lay testimony about that this veteran could not hear very well over the course of thirty years was probative more persuasive which is exactly why that was something to do with thirty years that late testimony was as soon as he came back the brother even says after basic training his hearing was go  even all of us in the family in the neighborhood and the place all knows the lay testimony was given thirty years later because the board in the regional office determined that you're quite natural progression of the disease could have been a possible source of the hearing loss there was no there's no diff no disease here there's no disease in the natural progression of the hearing loss whether that's a disease or not but the condition is that what y the final paragraphs it's on the left side page when the word was trying to look at whether what's the line in order to rebut the presumption of aggravation there must be clear  one sixty eight when the regional office decision went through a lot of detail on the back created with the applicable regulations in the conclusion at result of your action duty so it's not correct to say that it's all the only two possible sources of the hearing loss was noise exposure i have with the other ear in other ear had no hearing loss on the entrance exam is that if there was a preexisting injury it might have gotten worse on its own not from noise in vietnam and that might be true perhaps with regard to the fear that had a preexisting hearing impairment but how could that have any relevance to the other ear that did not have any impairment on the entrance test because it looked at there were no complaints for thirty years about hearing loss and the other ear there was no evidence of any for example  ustic noise trauma in service there was plenty of evidence of post service exposure to loud noises without very review ridge testimony yes talks about daily rocket attacks and ground combat operations explosions gun fire the screaming jet aircraft low overhead yes in the border didn't they considered all that it took that as lay evidence in support of the veteran even those official duties didn't describe it there's no dispute that they accepted that testimony from the veteran that during service he was exposed to loud noises but then thirty years later he comes in and without any medical complaints during that time medical examinations anything else the the medical examiner considered absolutely everything and so did the board in the court but the medical examiner could not  make a decision in part due to all of that self reported exposure to noise that was not possible to determine and that you read and read his testimony in front of the well for one your are it's not a judgment the lawyers and make the medical examiners make that based on science i'm talking about the lay testimony we all know the medical examiner couldn't make anything out of it we agree with that  agrees with that everybody knows that's the case the question was the lay evidence and ethical quarries or anything close to act will poison and that having a hard time understanding how anybody could consider it an ethical pois if you compare daily rocket attacks for two years on the one hand with occasional hunting trips or weed whackers in the ensuing post to this period it just doesn't seem reasonable to me it's entirely to make a competent medical judgment about whether there was a nexus or not could not do that given in part the thirty year time and in part all of the other things you know you may be misinterpreting this but it sounds to me it's if you do and judge sheldon and the board member kilcoyne and they are all well basically the unarticulated view that only a medical examiner arifin acoustic trauma to a veteran say five or ten years later might have created a different balance here for the fact finder or there could have been there is no evidence that something exploded next to his ear after look time in service exactly what i'm saying is there could be i mean i mean it in hogan the court if the if the veterans department could show that he happened to be standing next to a place where a terrorist bomb went off and that's why a serious move up they would be this is this proving the theory of service connection and it would be very decisive but there's no such evidence in his record at all you know and in that type of case the medical these facts show why the court lacks jurisdiction this is the fact barrel and case where the burden the court determined in the first instance which for example this court is held in kid well at appendix one fifty two when they are lists the evidence considered one of the items is the examination by the medical examiner whose report contains a variety of types of whole lot of things yet so there's plenty of notice of what probative evidence is that appendix one sixty one it explains to the veteran how the regional office would look looks at each piece of evidence to say in the concluding paragraph or so that you find so helpful to your case well one sixty eight goes through on the right ear there was no evidence of hearing loss while in service and nothing within one year following separation that that competently links or provides a nexus and then hearing loss unless you have numbers going in and numbers coming out but then he gave them a kind of test where there are no numbers the whisper test you're correct does not confirm one way or the other think that was a sufficient test to give a combat veteran on the way out of service on the way and they gave him the right test but on the way out after all the noise they give him the pitiful non quantified was protest your honor i think it's not for us to determine in this case but in any event there was nothing from the veteran for thirty years about hearing loss and under the maxon case the court has held that prolonged period of time without any evidence of medical complaints says something about the about nexus and here you have thirty years the r r then went on  the v a is not complaining it's just that in looking at the totality of evidence it says something about about the condition there's no hearing tests for all that time  so there was an in looking at everything the medical examiner own who's report was considered but basically said she couldn't tell one way or the other waiting everything in the medical examiner statement and then the word in the court looked at praise service in service and post service exposure to new ways  also considered whether the normal progression of hearing loss might have been a factor and and found that that there was no nexus given the facts and circumstances of this case there exposure to noise so i would submit that that is actually some medical evidence the question is which source of the noise and we would also submit that the examiners report suggesting that it could be either source if it puts the evidence and i propose in the the benefit of